11th Circuit - Attorney's Working Files - Issues - Ake

    NC One br F - Ay NSCstey v- Kowp - Issves- Ake 
. 

| 

 



  

TO: Jack 

FROM: Kaoru 

DATE: June 9, 1987 

RE: whether Ake requires extensive explanation for need for 

expert assistance 

In Caldwell, 86 L.Ed. 24 231, 236 n.l1l, the Supreme Court upholds 
the state court's denial of petitioner's request for expert 

assistance because the request was "accompanied by no showing as 
to [its] reasonableness." The Court noted that "[gliven that 
petitioner offered little more than undeveloped assertions that the 

requested assistance would be beneficial, we find no deprivation 
of due process in the trial judge's decision . . «. « We therefore 

have no need to determine as a matter of federal constitutional law 
what if any showing would have entitled a defendant to assistance 

of the type here sought." 

  

The Mississippi state court in Caldwell v, State, 443 S.2d 806 
(Miss. 1984), had denied petitioner's request for expert assistance 
because in his motion, petitioner simply included a general statement 
that the requested expert "would be of great necessarius witness." 
The court noted that petitioner did not estimate the cost of such 

an expert nor, the specific value of having one. In supporting 
this argument, the state court relies on its previous decision 

in~-Bullock wv, State, 391 So, 24 601 Miss. 1930). In this case, 
the court found that the trial court did not err in refusing to 
grant appellant's motion for expert assistance because the 

appellant did not outline any specific costs for such am expert, 

and did not indicate to the court in any specific terms as to the 

purpose and value of such an individual to the defense, 

  

  

The Bullock court cites Davis v. State, 374 So.2d 1293 (Miss. 1979). 
In Davis, the appellant had made a request for an expert but 

did not inform the court of the cost of such an expert, The court 
affirmed the trial court's denial of this request, noting that 

the decision to deny or to grant such an request was not based on 

federal or state constitutional requirements, but that such a 

determination should be made on a case-by-case basis, 

  

Caldwell, Bulloek, and Davis do not make reference to any   ee 

relevant state statute which requires extensive explanation for 
expert assistance, A brief search through both the Mississippi 

and Georgia state statutes reveal no such provision, It therefore 

seems that the Supreme Court in Caldwell did not rule on the 

Mississippi state court's denial of expert assistance to the 
petitioner, not becausethe state court's decision was based 

on its interpretation of a state statute, but arguably because 

the decision was based on pre-Ake state case law, 

  

The only Georgia case which is comparable to the C€uldwell/Bullock 

line of cases is Cargill v, State, 340 S,E.,2d 891 (Ga, 1986). 
  

  

In- Cargill, the state court upheld the trial court's denial of 

 



-—2 - 

  

appellant's request for a "defense interrogation expert" despite 

Ake, The court stated that "[t]he appellant has not shown how an 
expert on police interrogation procedures would provide any meaningful 

assistance on the question of whether a confession was voluntarily 

given by the defendant," The court did not rely on any state 
statute, but it cited its own decision in Wilson wv... State, 300 

  

S.,E.2d 640 (Ga, 1981) ("This court has consistently held that the 
grant or denial of a motion for appointment of expert witnesses 

for an indigent defendant lies within the sound discretion of the 

trial court and, absent an abuse of discretion, the court's ruling 
will be upheld,” ), 

 



  
  
  

  

702 

Carzell MOORE, Petitioner-Appellant, 

Vv. 

Ralph KEMP, Warden, Georgia 
Diagnostic and Classification 
Center, Respondent-Appellee. 

No. 82-8683. 

United States Court of Appeals, 
Eleventh Circuit. 

Jan. 21, 1987. 

Petitioner sought federal habeas cor- 
pus relief after his convictions for rape and 
murder were affirmed on appeal. The 
United States District Court for the Middle 
District of Georgia, No. C81-0073, Wilbur 
D. Owens, Jr., Chief Judge, denied relief 
without holding evidentiary hearing. Petj- 
tioner appealed. The Court of Appeals af- 
firmed, 722 F.2d 640. On rehearing en 
bane, the Court of Appeals, Tjoflat, Circuit 
Judge, held that: (1) petitioner was not 
entitled to appointment of expert witness 
to review tests performed by state crime 
lab on various items of evidence; (2) peti- 
tioner was entitled to evidentiary hearing 
on his claim that prosecutor deliberately 
withheld materia] portions of key prosecu- 
tion witness’ criminal record; and (3) in- 
structions at sentencing phase did not 
clearly and explicitly inform jury of its 
option to impose life sentence if it found 
existence of statutory aggravating circum- 
stance. 

Affirmed in part, reversed in part, and 
remanded with instructions, 

Roney, Chief Judge, filed opinion con- 
curring in part, specially concurring in 
part, and dissenting in part, in which Fay, 
Circuit Judge, joined. 

Godbold, Circuit Judge, filed opinion 
dissenting in part and concurring in part. 

Hill, Circuit Judge, filed opinion con- 
curring in part and dissenting in part, in 
which Roney, Chief Judge, and Fay and 
Edmondson, Circuit Judges, and 
Henderson, Senior Circuit Judge, joined. 

809 FEDERAL REPORTER, 2d SERIES 

Johnson, Circuit Judge, filed opinion 
concurring in part and dissenting in part, in 
which Kravitech and Hatchett, Circuit 
Judges, joined, and in which Godbold, 
Anderson and Clark, Circuit Judges, joined 
in part. 

1. Criminal Law €=641.6(3) 
State need not provide indigent defend- 

ants all assistance their wealthier counter- 
parts might buy; rather, fundamental fajr- 
ness requires that state not deny them 
adequate opportunity to present their 
claims fairly within adversary system. 
U.S.C.A. Const.Amend. 14. 

2. Criminal Law &=641.6(3), 1077.2(1) 
Among tools state must not deny indi- 

gent defendant in criminal proceeding are 
assistance of counsel at trial, and on de- 
fendant’s first direct appeal as of right, 
trial transcript, if it is necessary to decision 
on the merits of the appeal; these tools are 
necessary to insure that indigent defend- 
ant’s access to justice is meaningful. U.S. 
C.A. Const. Amend. 14. 

3. Constitutional Law &=268.2(3) 
Due process does not require govern- 

ment automatically to provide indigent de- 
fendants with expert assistance upon de- 
mand; rather, defendant must show trig] 
court that there exists reasonable probabili- 
ty both that expert would be of assistance 
to defense and that denial of expert assist- 
ance would result in fundamentally unfair 
trial. U.S.C.A. Const. Amend. 14. 

4. Costs ¢=302.2(2) 

If indigent defendant wants expert to 
assist his attorney in confronting prosecu- 
tion’s proof, by preparing counsel to cross- 
examine prosecution’s experts or by provid- 
ing rebuttal testimony, he must inform 
court of nature of prosecution’s case and 
how requested expert would be useful; at 
the very least, he must inform trial court 
about nature of crime and evidence linking 
him to the crime. U.S.C.A. Const. Amend. 
14.    



ge, filed opinion 

senting in part, in 
[atchett, Circuit 

which Godbold, 
iit Judges, joined 

3) 

indigent defend- 

ealthier counter- 

undamental fair- 

not deny them 
present their 

rersary system. 

), 1077.2(1) 

t not deny indi- 

proceeding are 

rial, and on de- 

bal as of right, 
sary to decision 

these tools are 

ndigent defend- 

eaningful. U.S. 

68.2(3) 
require govern- 

ide indigent de- 

tance upon de- 

hust show trial 

nable probabili- 

pe of assistance 

if expert assist- 

mentally unfair 

d. 14. 

Pants expert to 

pbnting prosecu- 

unsel to cross- 

or by provid- 

must inform 

ion’s case and 

| be useful; at 

rm trial court 

idence linking 
Const.Amend. 

  

MOORE v. KEMP 703 
Cite as 809 F.2d 702 (11th Cir. 1987) 

5. Costs €=302.4 

If defendant desires appointment of 
expert so that he can present affirmative 

defense, such as insanity, he must demon- 

strate substantial basis for the defense. 

U.S.C.A. Const.Amend. 14. 

6. Costs €302.2(2) 

If indigent defendant requests appoint- 

ment of expert, defense counsel is obligat- 

ed to inform himself about specific scien- 

tific area in question and to provide court 

with as much information as possible con- 

cerning usefulness of requested expert to 

defense’s case. U.S.C.A. Const.Amend. 14. 

7. Costs €=302.2(2) 

Indigent defendant was not entitled to 

appointment of expert witness to review 
tests performed by state crime lab on vari- 

ous items of evidence, including defend- 

ant’s blood, saliva and hair samples; de- 

fendant failed to indicate connection be- 

tween samples and crimes in question, 

what tests crime lab may have conducted 

on those samples, or what kind of expert he 

desired or role expert would play. U.S. 

C.A. Const. Amend. 14. 

8. Criminal Law €&=700(2) 

Prosecutor has duty to provide accused 

with all evidence in state's possession mate- 

rially favorable to accused’s defense. 

9. Criminal Law &700(4), 919(1) 

Prosecutor's failure to produce evi- 

dence in state’s possession materially fa- 

vorable to accused's defense may necessi- 

tate retrial irrespective of good faith or bad 

faith of prosecution; when defendant's 

guilt or innocence may turn on reliability of 

witness, prosecutor’s nondisclosure of evi- 

dence affecting credibility of witness falls 
within this general rule. 

10. Criminal Law &700(4) 

Prosecutor has duty to disclose evi- 

dence of any promises made by state to 

prosecution witness in exchange for his 

testimony; this is especially true when tes- 

timony of witness is essential to state’s 
case. 

11. Habeas Corpus €=90.2(8) 

Petitioner was entitled to evidentiary 

hearing on his claim that prosecutor delib- 

erately withheld material portions of key 

prosecution witness’ criminal record which 

suggested that witness had either been giv- 

en immunity or thought he had been given 

immunity from prosecution in exchange for 

his testimony; defense counsel was not 

informed that witness was on probation at 

time he testified, and witness admitted en- 

gaging in conduct which warranted revoca- 

tion of his probation yet was not punished 

for such conduct. 28 U.S.C.A. § 2254(d). 

12. Homicide ¢=311 

Instructions to jury at sentencing 

phase of defendant’s murder trial did not 

clearly and explicitly inform jury of its 

option to impose life sentence if it found 

existence of statutory aggravating circum- 

stance, as required by Georgia law; al- 

though instruction described mitigating cir- 

cumstances and allowed jury to consider all 

of the evidence presented, instruction in- 

formed jury that it was required to return 

death sentence if it found aggravating cir- 

cumstance. 

13. Homicide &=354 

Testimony of victim’s father regarding 

victim's good character and future plans 

was inadmissible in sentencing hearing of 

murder prosecution to rebut inference that 

victim was willing participant in robbery 

which occurred prior to her murder, where 

defendant raised alibi defense and testified 

that he was not involved in robbery. O.C. 

G.A. § 17-10-30(b)(2). 

Robert E. Morin, Rockville, Stephen B. 

Bright, Atlanta, Ga., for petitioner-appel- 

lant. 

William B. Hill, Jr., Susan Boleyn, Daryl 

A. Robinson, Asst. Attys. Gen., Atlanta, 

Ga., for respondent-appellee. 

Appeal from the United States District 
Court for the Middle District of Georgia. 

‘Before RONEY, Chief Judge, 

GODBOLD, TJOFLAT, HILL, FAY,    



  

  

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Lull 
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Hen cr50/ 

  potioh 

704 

VANCE, KRAVITCH, JOHNSON, 
HATCHETT, ANDERSON, CLARK, and 
EDMONDSON *, Circuit Judges, and 
HENDERSON,** Senior Circuit Judge. 

TJOFLAT, Circuit Judge: *** 
& eair, 1) i 
sry fay. 7 a 

Shortly before 7:00 p.m. on December 12, 
1976, several patrons of the Majik Market 
convenience store in Cochran, Georgia, 
found the store open and unattended. The 
store’s cash register and safe were open 
and empty, and the store's cashier, eigh- 
teen-year-old Teresa Carol Allen, was miss- 
ing. Her automobile had also vanished. 
Two days later, Ms. Allen’s body was dis- 
covered over seventy miles northwest of 
Cochran in Monroe County, Georgia. 
Found near her body were footprints, two 
30.06 caliber cartridge hulls, a 30.06 caliber 
metal jacket of a bullet, tire tracks, a nylon 
stocking, a pair of leather work gloves, and 
parts of Ms. Allen’s flesh, teeth, and bone. 

Police immediately began a search for 
Ms. Allen's automobile. Approximately 
one month later, the automobile was dis- 
covered in South Carolina in the possession 
of an escaped convict, twenty-year-old 
Roosevelt Green; Green had been arrested 
for an unrelated convenience store robbery. 
From jail Green made a telephone call to 
the mother of an acquaintance, Thomas 
Pasby, and stated, “Tell Carzell Moore I'm 
in jail in South Carolina.” The Georgia law 
enforcement officials investigating Ms. Al- 
len’s murder learned of this telephone call 
and questioned a number of persons in 
Cochran about possible links between 
Green and Moore. They discovered that 
Green and Moore met and became friends 
while they were in prison in Alabama, that 
* EDMONDSON, Circuit Judge, became a member of the court after this appeal had been orally argued but has participated in this decision after listening to a recording of oral argument. See 11th Cir.R. 24(g). 
** HENDERSON, Senior Circuit Judge, has elect- ed to participate in further proceedings in this matter pursuant to 28 U.S.C. § 46(c). 
*** RONEY, Chief Judge, GODBOLD, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, 
ANDERSON, CLARK, and EDMONDSON, Cir- 

809 FEDERAL REPORTER, 2d SERIES 

on December 11, 1976, after escaping from 
prison in late 1975, Green arrived in Coch- 
ran asking for Moore, and that Moore Fad 
introduced Green to a number of friends in 
Cochran, among them Thomas Pasby. On 
January 10, 1977, Carzell Moore was ar- 
rested and was placed in the Bleckley 
County jail, located in Cochran. Five days 
later, authorities obtained a search warrant 
for Moore’s home and seized several items, 
including one pair of brown “Hush Puppy” 
shoes and a gold towel. These items were 
submitted to the Georgia crime lab for 
analysis. 

On February 15, 1977, a grand jury in 
Monroe County, Georgia, returned an in- 
dictment charging Moore and Green with 
the rape and first-degree murder of Ms. 
Allen. Green escaped from the Monroe 
County jail prior to trial and was not recap- 
tured for several years. As a result, iff 
June 1977, Moore was tried separately be- 
fore a jury in the Superior Court of Monroe 
County, Georgia. The key witness for the 
State was thirty-year-old Thomas Pasby. 
Pasby was a resident of Cochran and was 
employed as a cement finisher in Hawkins- 
ville, Georgia. He testified that he had 
known Carzell Moore for fifteen years and 
that since his return to Cochran in 1974, 
after serving in the Army for eight years, 
he had “spent a lot of time” with Moore. 
According to Pasby, in late November 
1976, he drove Moore to a location in Coch- 
ran near a flower shop. Moore asked Pas- 
by to park and to wait for him to return, 
After a few minutes had passed, Moore 
returned to the car carrying a 30.06 caliber 
hunting rifle similar to the murder weapon. 
A few weeks later, Pasby accompanied 
Moore to an abandoned schoolhouse where 
Moore kept the rifle. Pasby examined the 

cuit Judges, and HENDERSON, Senior Circuit 
Judge, concur in Part I and Part IV. 

“JRONEY, Chief Judge, HILL, FAY, VANCE and EDMONDSON, Circuit Judges, and HENDER. 7 I S Senior Circuit Judge, concur in Part II. 
LD, } 1 » HATCHETT, ANDERSON, and CLARK, Circuit Judges, concur in Part III. RONEY Chief Judge, HILL, FAY, VANCE, ANDERSON, CLARK, and EDMONDSON, Circuit Judges, and HENDER- SON, Senior Circuit J udge, concur in Part V.  



scaping from 
ived in Coch- 

t Moore had 

F of friends in 

Pasby. On 

oore was ar- 

the Bleckley 
n. Five days 

arch warrant 

everal items, 

Hush Puppy” 

Le items were 

rime lab for 

grand jury in 

turned an in- 

d Green with 

urder of Ms. 

i the Monroe 

yas not recap- 

5 a result, in 

separately be- 

urt of Monroe 

itness for the 

omas Pasby. 

hran and was 

br in Hawkins- 

that he had 

een years and 
thran in 1974, 

ir eight years, 

’ with Moore. 

te November 

ation in Coch- 

bre asked Pas- 

him to return. 

passed, Moore 

a 30.06 caliber 

urder weapon. 
accompanied 

olhouse where 

examined the 

{, Senior Circuit 

rt IV. 

LY, VANCE and 

and HENDER- 

cur in Part IL 

H, JOHNSON, 

CLARK, Circuit 

EY Chief Judge, 
, CLARK, and 

and HENDER- 

r in Part V. 

  
MOORE v. KEMP 705 

Cite as 809 F.2d 702 (11th Cir. 1987) 

rifle and noticed that its serial number had 

been obliterated. 

Pasby also testified that on January 1, 

1977, during a trip to Hawkinsville, Moore 

confessed to him that he had raped. and 

  

murdered Ms. Allen and described how.the 

crimes were committed. Pasby related 

oore’s description of the events of De- 

cember 12, 1976, as follows. Roosevelt 

Green entered the Majik Market and dis- 

tracted Ms. Allen so that Moore could enter 

the store without the rifle being noticed. 

After robbing the store, the two men ab- 

ducted Ms. Allen and drove away in her 

car. With Moore driving the car, Green 

raped Ms. Allen. The two men then ex- 

changed places, and Moore raped Ms. Al- 

len. Some time later Moore told Green to 

stop the car. He got out of the car with 

Ms. Allen and told Green to go to a gas 

station to get gas for the car. After Green 

left, Moore pointed the rifle at Ms. Allen. 

She reacted by crossing her arms over her 

stomach. Moore then fired the rifle into 

her abdomen. He fired a second shot into 

her face in an attempt to make identifica 

tion difficult. When Green returned, the 

two men picked up the body and threw it 

into the bushes by the side of the road. 

  

  

Moore told Pasby that his first rifle shot - 

had so mangled one of the victim's hands 

that he thought it was going to fall off. 

During his direct examination, Pasby tes- 

tified that he had been arrested on January 

4, 1977, for theft by taking. Pasby said 

that the arrest took place in Hawkinsville 

and that shortly after he was taken into 

custody he was transferred to the Bleckley 

County jail in Cochran. Pasby testified 

that Moore was placed in the jail with him 

following Moore's arrest on January 10. 

Pasby stated that, while he was in the jail 

with Moore, he learned that Roosevelt 

Green had been arrested and told Moore 

about the arrest! Moore exclaimed, 

“Damn, I told Green to get rid of that car 

and rifle.” 

The remainder of the State’s case con- 

sisted of evidence corroborating Pasby’s 

1. The Bleckley County jail consists of a large 

enclosure which is divided into several smaller 

cells. According to Pasby, the doors to the cells 

remained open, allowing prisoners to move 

testimony. Terry Kilgore, the owner of a 

flower shop in Cochran, testified that his 

30.06 hunting rifle was stolen from his 

truck some time after Thanksgiving 1976. 

The rifle, registered in Kilgore’s name, was 

determined in a ballistics test to have been 

the murder weapon. Green had the rifle in 

his possession the morning after the Majik 

Market robbery. Charles Livingston testi- 

fied that, on that morning, Green arrived at, 

his home in South Carolina driving an auto- 

mobile similar to Ms. Allen’s car. In 

Green's possession were a roll of bills, a 

“bank bag,” a large amount of coins (all of 

which were consistent with the items taken 

from the Majik Market), and a 30.06 caliber 

rifle. Green traded the 30.06 caliber rifle 

for Livingston's .25 caliber automatic pis- 

tol. The police subsequently confiscated 

the rifle, and Kilgore identified it during 

his testimony. 

  

  

  

  

  

  

  

  

Johnny Johnson, an acquaintance of 

Moore's, testified that on December 9, 

1976, three days before the robbery, Moore 

asked him and a friend if they knew of a 

place to “hit.” Moore told them that he 

had a high-powered rifle and ammunition 

that would be useful in a robbery. Three 

other witnesses testified that on the after- 

noon of December 12 they saw Moore and 

Green at Moore's home, approximately four 

blocks from the Majik Market. 

A gas station attendant who worked at 

an Amoco station near the murder site 

testified that on the night of the murder a 

car matching the description of Ms. Allen’s 

automobile stopped for gas. Two persons 

were in the car, and the attendant remem- 

bered that the passenger, a black male, 

paid for the gas and used the restroom. 

Although he was unsure of the sex or race 

of the driver, the attendant testified that 

he thought the driver was also a black 

male. 

The State utilized a number of experts to 

inform the jury about the physical evidence 

found at the murder site and in the search 

of Moore’s home. The pathologist who 

  

freely from cell to cell. Pasby testified chat he 

heard the news of Green's arrest on television 

and that he went to Moore's cell to notify him of 

the arrest.   

     



  

  
  

  

  

  

  

706 

performed the autopsy on Ms. Allen testi- 
fied that her injuries were consistent with 
Moore’s description to Pasby of the rape 
and murder. His examination of the body 
revealed bullet wounds in each arm, the 

abdomen, and the head. From the location 

and nature of the bullet wounds, the pa- 
thologist theorized that Ms. Allen’s arms 

had been crossed over her stomach when 

she was shot, allowing one bullet to pass 

through both arms before entering her ab- 
domen. He noted that the right arm was 
“almost completely torn in two” by the 

bullet, with the right hand remaining at- 
tached to the body only by soft tissue. He 

also stated that a separate bullet entered 

the left side of the victim's head over her 

ear. His examination also revealed bruises 

on the inner thigh and vaginal injuries indi- 

cating that Ms. Allen had been raped prior 
to being killed. 

(~ A ballistics expert testified that bullets 

| fired from the 30.06 caliber rifle confiscat- 
ed from Livingston and registered to Terry 
Kilgore matched the 30.06 caliber slug re- 

trieved at the murder site. Warren Till- 
man, a microanalyst from the state crime 
lab, testified that a “plaster cast of a foot- 

print found near the body was similar in 
size and in its treadless design to the pair 
of “Hush Puppy” shoes seized in the 
search of Moore’s home. His examination 
of plaster casts of tire fracks found near 
the murder site revealed that the tracks 

were similar in size and tread design to the 
tires on Ms. Allen’s automobile. Tillman 
also testified that in his opinion a Cauca- 

sian pubic hair and Negroid headHair re 
moved from the gold towel seized in _the 
Search of Moore's home could have come 
from Ms. Allen and Mr. Moore respectively. 
In addition, he stated that the Negroid 
head hair found on the towel did not come 
from Roosevelt Green or Thomas Pasby. 

Finally, Linda Barton, a crime lab serolo- 
gist, testified that vaginal swabbings taken 
from the victim revealed seminal fluids 
from an individual with type A blood. She 
concluded That the seminal fluid could not 
have come from Roosevelt Green, because 

he had type B blood. "ATthough the serolo- 
gist found that both Moore and Pasby had 

809 FEDERAL REPORTER, 2d SERIES 

type A blood, she testified that in her opin- 

ion the seminal fluid could have come from 

Moore because he was a “strong secretor” 

and could not have come from Pasby, be- 
cause he was a “weak secretor.” 

Carzell Moore testified in his defense. 
He stated that he was twenty-four years 

old and that he was employed by a lumber 

company in Cochran. Moore admitted that 

he met Green in a penitentiary in Alabama, 

that Green had escaped from that peniten- 

tiary in late 1975, and that Green had ar- 

rived in Cochran looking for him on Decem- 

ber 11, 1976. Moore also admitted that he 

had allowed Green to stay in his home and 

had introduced Green to many of his 

friends in Cochran. He stated that on the 

afternoon of the robbery he and Green had 

been drinking. Moore testified that after 

Green left his home on foot headed toward 
town, he passed out on a couch. He denied 

participating in the robbery and denied 

making any statements to Pasby about the 

incident. The jury rejected Moore's testi- 

mony and returned a verdict of guilty on 

both the rape and the first-degree murder 

counts. 

During the sentencing phase of the trial, 

the State presented documentary evidence 

of Moore’s prior convictions for burglary 

and for possession of marijuana. Moore 
then testified, asking the jury for mercy 

and repeating his denial of any involvement 

in the incident. His mother, Catherine 

Moore, also testified, asking the jury to 

spare her son's life. In rebuttal, the State 
called Joseph Allen, the victim's father. 

He testified that his daughter would have 

been nineteen on December 25, 1976, had 

been an honor student in high school, was 

attending Middle Georgia College on a par- 

tial scholarship studying to become a 

nurse, and had been working part time at 

the Majik Market to help pay for her edu- 
cation. After deliberating, the jury recom- 

mended the death penalty on both the rape 

and the first-degree murder counts and 

found the following statutory aggravating 

circumstances: first, each crime was com- 

mitted during the commission of additional 

capital felonies, i.e., the murder was com-    



hat in her opin. 
have come from 
trong secretor” 

from Pasby, be- 
etor.” 

in his defense, 

enty-four years 
ed by a lumber 
re admitted that 
ary in Alabama, 
pm that peniten- 
t Green had ar- 

r him on Decem- 

hdmitted that he 
in his home and 

p many of his 
ted that on the 

e and Green had 

ified that after 
headed toward 

buch. He denied 

ery and denied 
Pasby about the 

d Moore's testi 
ict of guilty on 
(-degree murder 

ase of the trial, 
lentary evidence 

s for burglary 
rijuana. Moore 

jury for mercy 

any involvement 

ther, Catherine 

ing the jury to 
buttal, the State 

victim's father. 

ter would have 

br 25, 1976, had 

igh school, was 

ollege on a par- 

to become a 

ng part time at 

bay for her edu- 

the jury recom- 

n both the rape 

Her counts and 

ry aggravating 

crime was com- 
lon of additional 

urder was com- 

MOORE v. KEMP 707 
Cite as 809 F.2d 702 (11th Cir. 1987) 

mitted during the commission of the rape, 

kidnapping, and armed robbery, and the 

rape was committed during the commission 

of the murder, kidnapping, and armed rob- 

bery, see 0.C.G.A. § 17-10-30(b)(2) (1982); 

and, second, each crime was outrageously 

and wantonly vile, horrible, and inhuman in 

that it involved torture of the victim and 

depravity of mind on the part of the de- 

fendant, see 0.C.G.A. § 17-10-30(b)(7) 

(1982). As required by Georgia law, the 

trial judge adopted the jury’s recommenda- 

tion and entered a sentence of death on 

both counts.? 

B. 

On direct appeal, the Supreme Court of 

Georgia affirmed Moore's convictions and 

sentences. Moore v. State, 240 Ga. 807, 

243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 

S.Ct. 268, 58 L.Ed.2d 249 (1978). Moore 

subsequently petitioned the Superior Court 

of Butts County for a writ of habeas cor- 

pus. After conducting an evidentiary hear- 

2. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 

53 L.Ed.2d 982 (1977), decided 20 days after 

petitioner's sentencing, precludes the imposition 

of the death penalty for the crime of rape. 

Petitioner challenged his death sentence on the 

rape count in his direct appeal to the Supreme 

Court of Georgia. Moore v. State, 240 Ga. 807, 

243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S.Ct. 

268, 58 L.Ed.2d 249 (1978). The court read 

Coker as allowing a death sentence in a rape 

case if the victim is murdered immediately fol- 

lowing the rape and thus affirmed petitioner's 

sentence. Jd. at 822, 243 S.E.2d at 11. In his 

habeas petition in the district court, petitioner 

claimed that Coker precluded his death sentence 

on the rape count. The district court rejected 

his claim without stating any reason for its 

decision. Petitioner has not questioned this rul- 

ing in this appeal; therefore, we do not pass on 

it. Petitioner does attack his death sentence on 

the rape count, as well as on the murder count, 

on the ground that the trial judge failed ade- 

quately to instruct the sentencing jury on its 

option to impose a life sentence despite the 

presence of a statutory aggravating circum- 

stance. We address this claim in Part IV, infra. 

3. Although the petition listed 33 claims, we con- 

clude, after a careful reading, that the petition 

contained 16 cognizable constitutional claims. 

These claims were that: (1) the exclusion of 

young adults and women from the venires from 

which petitioner's grand jury and petit jury 

were chosen denied him due process in viola- 

tion of the fourteenth amendment; (2) the trial 

ing, the court denied Moore's petition. The 

Supreme Court of Georgia denied Moore's 

application for a certificate of probable 

cause to appeal, and the United States Su- 

preme Court denied his petition for a writ 

of certiorari to review the state habeas 

corpus decision. Moore v. Zant, 446 US. 

947, 100 S.Ct. 2176, 64 L.Ed.2d 803 (1980). 

Thereafter, Moore filed a second habeas 

corpus petition in the Superior Court of 

Butts County in an effort to exhaust those 

issues he had failed to raise in any of the 

previous judicial proceedings. The court 

summarily dismissed the petition without 

holding a hearing. In response, Moore 

filed an application for a certificate of prob- 

able cause to appeal, which the Supreme 

Court of Georgia denied. 

Having exhausted his state remedies, 

Moore filed the instant petition for a writ 

of habeas corpus in the district court on 

April 7, 1981. Moore raised sixteen claims 

of error? The petition was referred to a 

court's denial of petitioner's motion for a 

change in venue based on prejudicial pretrial 

publicity denied him a fair trial in violation of 

the fifth, sixth, and fourteenth amendments; (3) 

the trial court's denial of petitioner's request for 

an independent expert to assist his attorney in 

confronting the physical evidence the State in- 

troduced against him at trial violated his rights 

under the fifth, sixth, and fourteenth amend- 

ments; (4) petitioner was denied the effective 

assistance of counsel at all stages of his criminal 

prosecution—pretrial, trial, sentencing, and di- 

rect appeal—and in his state habeas proceedings 

in violation of the sixth and fourteenth amend- 

ments; (5) the prosecution's failure to reveal 

promises made to Thomas Pasby, the State's key 

witness, violated petitioner's due process rights 

under the fourteenth amendment; (6) petition- 

er's convictions were based on false testimony 

in violation of the fourteenth amendment due 

process clause; (7) petitioner's convictions were 

based upon evidence resulting from an illegal 

search of his home in violation of the fourth 

and fourteenth amendments; (8) the trial court 

improperly instructed the jury on the issues of 

reasonable doubt and conspiracy at the guilt 

phase of petitioner's trial in violation of the 

eighth and fourteenth amendments; (9) the ad- 

mission of inflammatory exhibits and hearsay 

evidence denied petitioner a fair hearing at both 

phases of his trial in violation of the sixth and 

fourteenth amendments; (10) the prosecutor 

made improper and prejudicial remarks to the 

jury at the sentencing phase of petitioner's trial, 

R
T
A
 

E
N
D
  



  

    

  

  

    

708 

magistrate who made findings of fact and 
conclusions of law and recommended that 
the district court deny the petition without 
an evidentiary hearing. On September 20, 
1982, the district court entered an order 
adopting the magistrate’s recommendation 
and denying the petition. Moore appealed, 
contesting the district court’s disposition as 
to five of his claims. In addition, Moore 
contended that the district court erred in 

refusing to hold an evidentiary hearing as 

to four of his claims.® A panel of this 

court rejected Moore’s arguments and af- 

firmed the district court’s denial of relief. 

Moore v. Zant, 722 F.2d 640 (11th Cir. 

1983). We vacated the panel opinion and 

granted Moore's petition for rehearing en 

banc on March 15, 1984. During oral argu- 

ment, the parties informed us that a recent 

Supreme Court of Georgia decision, 

Stynchcombe v. Floyd, 252 Ga. 113, 311 
S.E.2d 828 (1984), appeared to represent a 

change in Georgia law directly related to 
an issue Moore raised in his appeal. In 

Floyd, the court held that a jury instruec- 
tion virtually identical to one challenged in 

Moore's case was erroneous because it 

failed to inform the jury of its option to 

recommend a life sentence in spite of the 

presence of a statutory aggravating cir- 

cumstance. Jd. at 114, 311 S.E.2d at 830. 

Accordingly, we held Moore's appeal in 

thus denying him due process of law in viola- 
tion of the fourteenth amendment; (11) the trial 

court's sentencing instructions to the jury did 
not adequately inform it of its option, under 
Georgia law, to return a life sentence even if it 
found the existence of a statutory aggravating 
circumstance in violation of the eighth and 
fourteenth amendments; (12) the testimony of 

the victim's father at the sentencing hearing 
deprived petitioner of his right to a sentencing 
hearing free from passion and prejudice in vio- 
lation of the sixth, eighth, and fourteenth 
amendments; (13) petitioner was deprived of 
his right to the guided exercise of jury sentenc- 
ing discretion in violation of the eighth and 
fourteenth amendments because (a) the trial 

court permitted the State to present to the jury 
evidence of petitioner's prior criminal history, 
(b) the trial court instructed the jury to consider 
constitutionally defective statutory aggravating 
circumstances under 0.C.G.A. § 17-10-30(b)(2), 

(b)(7) (1982), (c) the trial court's instruction on 

809 FEDERAL REPORTER, 2d SERIES 

abeyance so that he could resubmit his jury 
instruction claim to the Georgia courts. 

Moore immediately filed a petition for 
habeas corpus relief in the Superior Court 
of Butts County. After an evidentiary 
hearing, the court dismissed Moore's peti- 
tion as successive. The Supreme Court of 
Georgia affirmed on April 24, 1985. Moore 
v. Kemp, 254 Ga. 279, 328 S.E.2d 725 
(1985). After being notified of this disposi- 
tion and receiving supplemental briefs, we 
heard further oral argument in this case on 
October 21, 1985. 

We now proceed to a discussion of the \ 
four claims that prompted us to rehear this 
case en banc: (1) that the trial court's 
denial of Moore’s pretrial request for an 
independent expert to assist his attorney in 
confronting the physical evidence the State 
introduced against him at trial denied him 
due process of law; (2) that the district 
court erred in refusing to hold an evidentia- 
ry hearing to determine whether the prose- 
cutor withheld portions of Thomas Pasby’s 
criminal record from the defense and 
whether Pasby testified against Moore pur- 
suant to an undisclosed agreement with the 
State; (3) that the trial court's sentencing 
instructions to the jury did not adequately 
inform it of its option to return a life 
sentence, even if it found a statutory ag- 
gravating circumstance; and (4) that the 
testimony of the victim's father during the 
sentencing phase of the trial deprived 

mitigating circumstances precluded the jury 
from considering mitigating circumstances oth- 
er than petitioner's age by specifically noting 
only that factor, and (d) the trial court failed to 

require the jury to make findings of fact as to 
the existence of mitigating factors; (14) a death 
sentence for the crime of rape deprived petition- 
er of a sentence proportionate to his crime in 
violation of the eighth and fourteenth amend- 
ments; (15) the Supreme Court of Georgia de- 
nied petitioner adequate review of his convic- 
tions and sentences in violation of the eighth 
and fourteenth amendments; and (16) Georgia 

administers the death penalty in a discriminato- 
ry fashion in violation of the eighth and four- 
teenth amendments. 

4. These claims are described supra, note 3, as 
claims 3, 10, 11, 12 & 13(a)—(c). 

5. These claims are described supra, note 3, as 
claims 4, 5, 6 & 7.   

  

 



mit his jury 
courts. 

etition for 

erior Court 

evidentiary 
pore’s peti- 

le Court of 

R5. Moore 
B.E.2d 725 

his disposi- 
briefs, we 

his case on 

ion of the 

ehear this 
al court's 

best for an 

httorney in 
b the State 

lenied him 

e district 
evidentia- 

the prose- 

hs Pasby’s 
ense and 

oore pur- 

it with the 
entencing 
dequately 
rn a life 

utory ag- 
that the 

luring the 

deprived 

the jury 
ances oth- 

plly noting 

rt failed to 
fact as to 

14) a death 
d petition- 

Ss crime in 

th amend- 
reorgia de- 
his convic- 

the eighth 
5) Georgia 
riminato- 

and four- 

ote 3, as 

note 3, as 

  
X « 1) 

b | EF i} 

ONY v& 

MOORE v. KEMP 
Cite as 809 F.2d 702 (11th Cir. 1987) 

Moore of his right to a sentencing hearing 

free from passion and prejudice. As to the 

remaining claims Moore raises on appeal, 

we reinstate the panel opinion. 
3  . 

3 5 3 3 oS 4 2 A 
PR od } 11. “ i Js A 

Petitioner was indigent at the time of his 

prosecution. Prior to trial, he moved the 
court to provide a “criminologist or other 

gXpert witness to assist his attorney in the 

preparation and presentation of his de- 

fense. The court denied the motion. Peti- 

tioner claims that this denial deprived him 

of the right to a fundamentally fair trial 

guaranteed by the due process clause of 

the fourteentl~amendment;® he cites two 

reasons. \Firsyy without the assistance of 

an expert, his attorney was unable ade- 

quately to cross-examine the State’s ex- 

perts, Warren Tillman, a microanalyst, and 

Linda Barton, a serologist, and thus could 

not challenge the validity of the conclu- 

sions they derived from their tests. Sec: 

ond, petitioner asserts that an expert ap- 

pointed to assist counsel might have con- 

ducted different and more conclusive tests, | 

the results of which might have supported 

his alibi defense. 

A. 

[1,2] Supreme Court precedent estab- 

lishes the principle that the due process 

clause of the fourteenth amendment re- 

quires that the state, upon request, provide 

indigent defendants with the “basic tools of 

6. Petitioner asserts in his brief to the en banc 
court that the trial court's denial of his motion 
for the appointment of an expert denied him a 
fair trial, in violation of the due process and 

equal protection clauses of the fourteenth 

amendment, rendered his attorney ineffective 

within the meaning of the sixth and fourteenth 
amendments, and subjected petitioner to cruel 

and unusual punishment in violation of the 

eighth and fourteenth amendments. Because 
petitioner's discussion of the alleged error ism 

terms-of-the fairness of the trial he received, we 

utilize a due process analysis iff sddressing his ‘) 
claim. This is the same approach the Supreme 
Court employed in Ake v. Oklahoma, 470 U.S. 

68, 87 n. 13, 105 S.Ct. 1087, 1099 n. 13, 84 

L.Ed.2d 5341985), in which it examined a claim 

for psychiatric assistance under the due process 
clause and declined to consider the applicability 

“»eg.E.2¢—17 . 

an adequate defense ... when those tools 

are available for a price to other prison- 

ers.” Britt v. North Carolina, 404 US. 

226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 
(1971); see also Ake v. Oklahoma, 470 U.S. 

68, 77, 83, 105 S.Ct 
L.Ed.2d 53 (1985); Ross v. Moffitt, 417 U.S. 

600; 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); 
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 

585, 100 L.Ed. 891 (1956) (plurality). The 
state need not provide indigent defendants 

all the assistance their wealthier counter- 

parts might buy; rather, fundamental fair- 

ness requires that the state not deny them 

“an adequate opportunity to present their 

claims fairly within the adversary system.” 

Ross, 417 U.S. at 612, 94 S.Ct. at 2444-45; 

see also Ake, 470 U.S. at 77, 105 S.Ct. at 

1094.7 In the case at hand, petitioner con- 

tends that the state trial court, in denying 
his request for the appointment of a “crimi- 

nologist or other expert witness,” deprived 

him of a basic tool of an adequate defense 

and therefore rendered his trial fundamen- 

tally unfair. 

An expert can assist a criminal defendant 

in marshaling his defense in two essential 

First) he can gather facts, inspect | ways. 

tangible evidence, or conduct tests or ex- f 

  

  

  

aminations that may aid defense counselin | 

confronting the prosecution's case, includ- 
  

| ifig its expert witnesses, on in fashioning a 

theory of defense} Second, Yhe expert can 
  

provide opinion testimony to rebut prosecu- 

tion evidence or to establish an affirmative 

defense, such as insanity. In a given case, 

of the equal protection clause or the sixth 

amendment. 

  

7. Among the tools the state must not deny an 

indigent defendant in a criminal proceeding are 

the assistance of counsel at trial, Gideon v. 

Wainwright, 372 US. 335, 83 S.Ct. 792, 9 

L.Ed.2d 799 (1963), and on the defendant's first 

direct appeal as of right, Douglas v. California, 

372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), 

and a trial transcript, if it is necessary to a 

decision on the merits of the appeal, Griffin v. 

Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 

(1956). These tools are necessary to ensure that 

an indigent defendant's access to justice is 

meaningful. See Ake v. Oklahoma, 470 U.S. 68, 

76-77, 105 S.Ct. 1087, 1093-94, 84 L.Ed.2d 53 

(1985).  



  

  

  

710 

the assistance of an expert could be so 

important to the defense that without it an 

innocent defendant could be convicted or, 

at the very least, the public’s confidence in 

the fairness of his trial and its outcome 

could be undermined. Even so, an indigent 

defenda i e 

of a an expert in preparing and presenting 

his ¢ S case cannot be heard to complain gbout 

his conviction on due process grounds un- 

less he made a timely request to the trial 

court for the provision of expert assistance, 
the court improperly denied the request, 

and the denial rendered the defendant's 

trial fundamentally unfair. 

In the case before us, a timely request 

for the appointment of an expert was 
made. The question we must decide next 
Is/Whether the trial court erred in denyl ing 

  

  

  

  

  

  

  

  

it. Specifically, we must assess the reason- | 

"ableness of the trial judge's action at the 

time he took it. This assessment necessar- 

ily turns on the sufficiency of the petition- 

er’s explanation as to why he needed an 

expert. That is, having heard petitioner’s 

explanation, should the trial judge have 
concluded that unless he granted his re- 

quest petitioner would likely be denied an 

adequate opportunity fairly to confront the 

State’s case and to present his defense? 

  

  

B. 

The Supreme Court adopted the ap- 

h_described above in Ake proac Ake v. Okla- 

homa, 470 U.S. 68, 83, 105 S.Ct. 1087, 1097, 

84 L.Ed.2d 53 (1985), and in Caldwell v. 

Mississippi, 472 U.S. 320, 323 n. 1, 105 

S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) 

(plurality). In Ake, the Court concluded 

that the due process clause’s guarantee of 
f airn d “when 

[an indigent] defendant demonstrates to 

the trial judge that his sanity at the time of 
the offense is to be a significant factor at 

trial” and that “the State must, at a mini- 

mum, assure the defendant access to a 

competent psychiatrist who will conduct an 

appropriate examination and assist in eval- 

uation, preparation, and presentation of the 

defense.” Ake, 470 U.S. at 83, 105 S.Ct. at 

1097. 

  

{ stand trial. 

| raise an insanity defense at trial. 

809 FEDERAL REPORTER, 2d SERIES 

Ake was arrested and charged with mur- 

dering a couple and wounding their two 
children. At his arraignment, and while in 

jail, his behavior was so bizarre that the 

trial judge, sua sponte, ordered him exam- 

ined by a psychiatrist. As a result of that 
examination, Ake was committed to a state 

hospital for a determination of his compe- 

tency to stand trial. A few weeks later, 

the chief forensic psychiatrist at the state 

hospital told the court that Ake was not 

competent to stand trial. After a compe- 

tency hearing, the court found Ake to be a 

“mentally ill person in need of care and 
treatment,” id. at 71, 105 S.Ct. at 1091, and 

incompetent to stand trial. The court or- 

dered him committed to the state mental 

hospital. Six weeks later, the chief foren- 

sic psychiatrist advised the court that Ake, 

\ who was being treated with an antipsy- 

chotic drug, had become competent to 

The court thereafter found 

Ake to be competent, and the criminal pros- 

| ecution resumed. See id. at 70-72, 105 

| S.Ct. at 1090-91. 

At a pretrial conference, defense counsel 

informed the court that his client would 

The at- 

torney further stated that in order to pre- 

pare and present that defense a psychia- 

trist would have to examine Ake with re- 

spect to his mental condition at the time of 

the murders. Because during his stay at 

the state hospital Ake was not examined to 
determine his sanity at the time of the 

offenses and, as an indigent, could not af- 

ford to pay a psychiatrist, counsel asked 

the court either to arrange or provide the 

necessary funds for such an examination. 

The court denied counsel’s motion. See id. 

at 72, 105 S.Ct. at 1091. 

At trial, defense counsel did not dispute 

Ake’s involvement in the charged crimes; 

his sole argument was that Ake was not 

guilty by reason of insanity. To support 

his argument, counsel called the psychia- 

trists who had examined Ake at the state 

hospital and questioned them about his 

mental condition at the time of the of- 
fenses. They were unable to render an 

opinion on the point, however, because they    



rged with mur- 

ding their two 

t, and while in 

izarre that the 

ered him exam- 

p result of that 

itted to a state 

b of his compe- 
weeks later, 

ist at the state 

L Ake was not 

fter a compe- 
nd Ake to be a 

d of care and 

t. at 1091, and 

The court or- 

e state mental 

he chief foren- 

ourt that Ake, 
th an antipsy- 
competent to 

ereafter found 

e criminal pros- 
at 70-72, 105 

efense counsel 

s client would 

‘trial. The at- 

order to pre- 
nse a psychia- 
bE Ake with re- 

at the time of 

ng his stay at 

ot examined to 

e time of the 

, could not af- 

counsel asked 

or provide the 

examination. 

otion. See id. 

Hid not dispute 
arged crimes; 

Ake was not 

To support 

d the psychia- 
e at the state 

em about his 

e of the of- 

to render an 

, because they 

  

  

MOORE v. KEMP 711 
Cite as 809 F.2d 702 (11th Cir. 1987) 

had not examined Ake for that purpose. 

As a result, no one testified as to his sanity 

at the time of the offenses, and, having 

failed to carry his burden of proof on the 

insanity defense, he received guilty ver- 

dicts. The State then sought the death 

penalty. Following a sentencing hearing, 

in which the parties presented no additional 

expert testimony, the jury recommended 

that Ake be sentenced to death for each of 

the two murders, and he was sentenced 

accordingly. 

Ake appealed to the Oklahoma Court of 

Criminal Appeals, claiming, among other 

things, that his convictions and death sen- 

tences were invalid because the trial 

court’s failure to provide psychiatric assist- 

ance denied him a fair trial. The court of 

criminal appeals rejected that claim on a 

procedural ground, holding that he had 

waived it by not challenging the trial 

court’s ruling in his motion for a new trial. 

The Supreme Court of the United States, 

on certiorari, reversed Ake’s conviction and 

remanded the case for a new trial because 

the failure to provide psychiatric assistance 

operated to deny Ake due process of law. 

In reaching this conclusion, the Supreme 

Court focused on the information available 

to the trial judge when defense counsel 

requested psychiatric assistance and on the 

effect the denial of such assistance had on 

the presentation of Ake’s defense at trial. 

The Court observed that when Ake’s coun- 

sel requested the provision of a psychia- 

trist, the trial judge knew that insanity 

would be Ake’s sole defense, that his case 

rested on his ability to prove that he was 

insane when he committed the crimes, and 

that none of the state psychiatrists who 

had examined and treated Ake had under- 

taken to assess his mental condition at that 

time. In addition, the trial judge had deter- 

mined previously that Ake was suffering 

from a mental illness that may have affect 

ed him at the time of the shootings and ha 

rendered him incompetent to stand trial for 

a six-week period. Finally, the trial judge 

knew that Ake could stand trial only if/he 

remained under medication. The Supreme 

Court concluded that, given the fac 

  

explanation for requesting expert assist- 

ance, it was unreasonable for the trial 

judge to have denied the request; he 

should have known that to refuse the re- 

quest would be to deny the defendant an 

adequate opportunity to prepare and 

present his insanity defense. ‘The Court 

further concluded, on the basis of what 

took place at trial, that the denial of expert 

assistance precluded Ake from presenting 

an effective defense. 

In Caldwell, also a capital case, the Su- 

preme Court was face again with a claim 

that a trial court's refusal to provide a 

defendant with expert assistance denied 

the defendant a fair trial. Caldwell asked 

for the appointment of a criminal investiga- 

t0T, a Tingerprint expert, and a ballistics 

  

  

expert. His requests were, denied. The 

state supreme court denials 

  “because the requests were accompanied 

by no showing as to their reasonableness.” 

Caldwell, 472 U.S. at 323, n. 

2 . 1[ For example, the motion re- 

questing the ballistics expert included only 

the general statement that the expert was 

necessary; the motion failed to explain in 

specific terms why the expert was needed. 

See Caldwell v. State, 443 So.2d 806, 812 

(Miss.1983), rev'd on other grounds sub 

nom. Caldwell v. Mississippi, 472 U.S. 320, 

105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (plu- 

rality). The Supreme Court concluded that 

because “petitioner offered little more than 

undeveloped assertions that the requested 

assistance would be beneficial, [there was] 

no deprivation of due process.” Caldwell, 

472 U.S. at 324 n. 1, 105 S.Ct. at 2637 n. 1 

(citation omitted). 

"The Supreme Court's statement in Cald- 

well implies that the government's refusal 

provide nonpsychiatric expert assistance 

coutd if a given case, deny a defendant a 

fair trial. The implication is questionable, 
however; in light of the Court’s subsequent 

statement that it had “no need to deter- 

mine as a matter of federal constitutional 

law what if any showing would have enti- 

tled a defendant to assistance of the type 

[Caldwell] sought.” Ia. {emphasis added). 
—————— er ———T 

We nonetheless assume, for sake of argu- 

  

  

  

  

  

    

  

  

  

in NAGS, had bb 2Beor ded oped” 

B= day peor   
  
  

 



    

712 

ment, that the due process clause could 

require the government, both state and fed- 

eral, to provide nonpsychiatric expert as- 

sistance to an indigent defendant upon a 

sufficient showing of need. 
  

1 Ake and Caldwell, taken fogeth- 

er, hold thatadefendant thust demonstrate 

something more than a mere possibility of 

assistance from a requested expert;® due 

rocess does not require the government 

automatically to provide indigent defend- 

ants with expert assistance upon demand. 

Rather, a fair reading of these precedents 

is that a defendant must show the trial 

court that there exists a reasonable proba- 

bility both that an expert would be of as- 

sistance to the defens€ and that denial of 

expert assistance would result in a funda- 

mentally unfair trial. Thus, if a defendant 

wants an expert to assist his attorney in 

confronting the prosecution’s proof—by 

preparing counsel to cross-examine the 

prosecution’s experts or by providing re- 

buttal testimony—he must inform the co 

of the nature of the prosecution's case(and] 

how the requested expert would be useful. 

At the very least, he must inform the trial 

court about the nature of the crime and the 

evidence linking him to the crime. 
    

  

8. Requiring trial courts, both state and federal, 
to provide for expert assistance—through direct 
appointment or a grant of funds—would place a 
substantial, if not onerous, burden on the ad- 

ministration of criminal justice. For example, 
the trial court would have to (1) appoint a 

defense expert for every expert available to the 
government; (2) provide for expert assistance 
whether or not such assistance turned out to be 
needed; and (3) provide for any additional ex- 
perts the appointed experts might need to ex- 
plore theories that could aid the defense in 
cross-examining prosecution witnesses or in 

presenting the defense’s case. We question the 
wisdom of such due process requirements ab- 
sent a substantial showing, such as the one 
made in Ake, of a significant benefit to the 
truth-seeking function of a trial. 

9. This required showing is analogous to the re- 
quirement that an indigent defendant wishing to 
obtain the issuance of a subpoena at govern- 
ment expense make “a satisfactory showing . 
that the presence of thé Witness is necessary to 
an “adequate “defense: Fed .R.Crim.P. 17(b). 

See United-Stares Vv. Abshire, 471 F.2d 116, 119 
(5th Cir.1972) (“[A] Rule 17(b) motion must 
state facts that show the relevancy and necessity 
of the requested witnesses’ testimony.”) (citation 

809 FEDERAL REPORTER, 2d SERIES 

same token, if the defendant desires the 

appointment of an expert so that he can 

present an affirmative defense, such as 

insanity, he must demonstrate a substan- 

tial basis for the defense, as the defendant 

instance, the defend- 

g must also include a_specific 

of the expert or experts de- 

sired; without this basic information, the 

court would be unable to grant the defend- 

ant’s motion, because the court would not 

know what type of expert was needed. In 
  

        

addition, the defendant should Inf6fm the 

court why the particular expert is neces- 

sary. We recognize that defense counsel 

may be unfamiliar with the specific scien: 

tific theories implicated in a case and there- 

fore cannot be expected to provide the 

court with a detailed analysis of the assist- 

ance an appointed expert might provide. 

We do believe, however, that defense coun- 

sel is obligated to inform himself about the 

specific scientific area In question and to 

provide the court with as much information 

as possible concerning the usefulness. of 

the requested expert to the defense’s 

case.”   

With the foregoing principles in mind, we 

address the merits of petitioner's claim. 

omitted) (In Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir.1981) (en banc), this court 
adopted as binding precedent all decisions of 
the former Fifth Circuit handed down prior to 
October 1, 1981.). 

10. In a jurisdiction like Florida, which accords 
the defendani substantial™discovery rights, see 
Fla.R.Crim.P. 3.220 (requiring prosecution to 
disclose, among other things, written statements 
of persons having relevant information and re- 
ports or statements of experts, including results 
of scientific tests, and allowing defendant to 
depose any person having relevant informa- 
tion), the defendant should have no difficulty in 
demonstrating the theory of the government's 
case and outlining the evidence the prosecutor 
will probably present at trial. The difficulty of 
the defendant's task will vary depending on the 
scope of the jurisdiction's discovery rules. In a 
jurisdiction still employing “trial by ambush,” 
Er TE 
ITAKE The ProSECHIor QISCIOSE he theory of his 
cHEEAnd The results of any tests that may have 

t experts or at the 
government's request.   

  
  

 



bndant desires the 
rt so that he can 
defense, such as 
strate a substan- 

, as the defendant 
ance, the defend- 
include a specific 

I'L or experts de- 

information, the 
grant the defend- 

Pp court would not 
t was needed. In 
thould inform the 
expert is neces- 
defense counsel 

he specific scien- 
a case and there- 

| to provide the 
ysis of the assist- 
t might provide. 
hat defense coun- 
imself about the 
question and to 
uch information 

e usefulness of 
b the defense’s 

iples in mind, we 
ptitioner’s claim. 

| Prichard, 661 F.2d 
n banc), this court 

t all decisions of 
ded down prior to 

da, which accords 

pcovery rights, see 
g prosecution to 
ritten statements 

formation and re- 
, including results 

ing defendant to 
elevant informa- 
ve no difficulty in 
the government's 
ce the prosecutor 
The difficulty of 

depending on the 
overy rules. In a 
rial by ambush,” 
ask the court to 
the theory of his 
fts that may have 
experts or at the 

  

MOORE v. KEMP 713 
Cite as 809 F.2d 702 (11th Cir. 1987) 

We begin by examining the information 
before the trial court when it ruled on 
petitioner’s motion. 

C. 

[7] On January 10, 1977, petitioner was 

arrested and charged with the murder of 

Ms. Allen. Two weeks later, on January 
24, attorneys A.J. Welch, Jr. and Rod 

Meadows were appointed to defend peti- 
tioner by the Honorable Hugh D. Sosebee, 

the superior court judge who was assigned 

to the case and who later presided over 

petitioner’s trial. Later that day, a “com- 
mittal hearing” 1! was held before another 

superior court judge, the Honorable Sam C. 

Whitmire.!? On February 9, 1977, a tran- 

script of the committal hearing was filed 

and placed in the record. Attached to this 

document was the portion of the transcript 

from the committal hearing held for 

Roosevelt Green containing the testimony 
of the Monroe County sheriff, L.C. Bittick. 

In his testimony, Sheriff Bittick described 

the results of tests conducted by Linda 
Barton, the crime lab serologist, on some 

seminal fluid found in the body of the 

victim and on samples of Green's blood and 

saliva. According to the sheriff, Barton 

had determined from these tests that the 

seminal fluid was produced by an individual 

who had type A blood and was also a 
“secretor.” Barton had determined that 
Green had type B blood, thus eliminating 
him as a possible source of the seminal 
fluid. 

On February 15, 1977, Judge Whitmire 

presided over a hearing on discovery mo- 

tions filed by Petitioner's counsel. At the 

conclusion of the hearing, defense attorne 

Welch advised the court that the State had 

agreed to provide the defense with copies 

of “all the physical evidence ... including 

11. Under Georgia law, an accused being held in 
custody can demand a preliminary hearing, of- 
ten termed a “committal hearing,” for the pur- 
pose of determining whether there exists proba- 
ble cause to believe that the accused perpetrated 
the charged crime and, if so, whether to bind 
the accused over to the grand jury. See O.C. 
G.A. § 17-7-23(a) (1982); Fleming v. Kemp, 748 

F.2d 1435, 1439 n. 14 (11th Cir.1984), cert. de- 

  

the Crime Lab reports, chemical analysis, 

TIT Tr I on Oe hte 
dence.” Welch then made the following 
motion: 

We would like to make a motion to the 

Court that an independent research 
analysis [sic] be appointed by this Court 

that is not employed by the State of 
Georgia to examine this evidence to find 

his own conclusions on behalf of the de- 

fendant, to reach his own conclusions, in 

order that we can first of all, have some- 
one to advise us as to the expertise of 

the Georgia Crime Lab, whether or not 

they performed the correct tests, wheth- 

er or not there could be any variances in 

the findings of the Georgia Crime Lab, in 

order that we would have this knowledge 
available to us. 

The court did not rule on the motion but 

instead asked Welch to submit the motion 
in writing. 

Petitioner was indicted by the grand jury 

later that day, thereby eliminating the need 

for a committal hearing and terminating 

Judge Whitmire’s jurisdiction over the 

case. See Douglas v. State, 132 Ga.App. 

694, 209 S.E.2d 114 (1974). All subsequent 

proceedings in petitioner's case were han- 
dled by Judge Sosebee. 

On February 24, 1977, petitioner's ap- 

pointed counsel asked the court’s permis- 

sion to withdraw, and the court appointed a 

new attorney, W. Franklin Freeman, Jr., to 

represent petitioner. Freeman continued 

to press the State for copies of any written 

reports from the crime lab, and he request- 

ed the State to provide mim with a list of 

witnesses the State would call at trial. On 

April 6, 1977, at the request of counsel for 

each side, the court continued d 

pretrial hearing so that both parties could 
amine the reports of the crime lab. The 

crime lab issued ten reports, including the 

nied, — U.S. —, 106 S.Ct. 1286, 89 L.Ed.2d 
593 (1986). 

12. Judge Sosebee did not preside over the com- 
mittal hearing, because under Georgia law the 
judge who has been assigned to try the case 
cannot preside over the committal hearing. See 
0.C.G.A. § 17-7-23(b) (1982). 

B
A
 A
 

A
 

A
 

a 
i
a
 

a
 

  

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A
 

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714 

reports of Warren Tillman and Linda Bar- 
ton. On April 15, three days after Free- 
man received the reports, the State gave 
him a list of witnesses who would testify at 
trial.’® Tillman and Barton were named as 
witnesses in that document, * 

13. The State was required by statute, upon time- 
ly motion, to produce copies of “any written 
scientific reports in the possession of the prose- 
cution which will be introduced in whole or in 
part against the defendant by the prosecution in 
its case-in-chief or in rebuttal.” 0.C.G.A. § 17- 
7-211(b) (1982). 

14. The complete text of the motion is set out 
below: 

MOTION TO REQUEST THE COURT TO AP- 
POINT CRIMINOLOGIST OR OTHER EX- 
PERT WITNESS TO ASSIST DEFENSE 
COUNSEL AND PLEA IN ABATEMENT 
Now comes CARZELL MOORE, Defendant 

above named, and moves the Court to appoint 
a criminologist or other expert witness to as- 
sist defense counsel by showing to the Court 
the following: 

1 
Movant was arrested by the Bleckley Coun- 

ty Sheriff's Department in January of 1977 on 
a charge of Murder of Teresa Allen. 

2. 
The undersigned counsel has been appoint- 

ed to represent Defendant. 

3 
Defendant has been indicted for murder 

and rape by the Monroe County Grand Jury. 
4. 

Approximately ninety-four items of physical 
evidence have been assembled by the District 
Attorney of the Flint Judicial Cirucit [sic]; 
Bleckley County Sheriff's Department; Mon- 
roe County Sheriff's Department; Cochran 
City Police; the Georgia Bureau of Investiga- 
tion; the Georgia State Crime Lab; the Hon- 
ree County Police Department; [sic] Honree, 
South Carolina; Conway City Police Depart- 
ment, Conway, South Carolina; the District 
Attorney of the Oconee Judicial Circuit: and 
the officers, agents, and employees of all the 
above (hereinafter referred to as Law En. 
forcement and Judicial Agencies). Among 
the items assembled are blood samples, saliva 
specimens, and hair specimens from the de- 
fendant. AdditiSHally, the gun, shoes, cloth- 
ing, hosiery, foot castings, and other types.ot 
physical “evidence have been assembled by 
said law enforcement and judicial agencies. 

Defendant is indigent, and cannot afford to 
procure the services of a private, independent 
expert to assist and advise him on the scien- 
tific analysis of this evidence. 

809 FEDERAL REPORTER, 2d SERIES 

On the same day, Freeman filed a writ 
ten motion styled “Motion to Request the 
Court to Appoint Crifinologist or Other 
Expert Witness to Assist Defense Counsel 
and Plea in Abatement.” The motion al- 
leged the following: (1) petitioner was 

6. 
Defendant has been informed that the vari- 

ous items of physical evidence tend to connect 
Him toa commission of tHe erime Tor which 
he is charged;"eéVeh though defendant under- 
stands that a number of the tests performed 
by the State Crime Lab do not conclusively 
prove the presence of defendant, but rather 
prove the presence of someone similar to de- 
fendant. 

Neither defendant nor his counsel are suffi- 
ciently knowledgeable to determine whether 
the test and examinations performed by the 
State Crime Lab on the various pieces of phys- 
ical evidence are complete, conclusive, or ex- 
haustive. Defendant understands that there 
are certain tests which can be run which 
might conclusively prove whether or not the 
hair samples found are those from defendam, 
but neither defendant nor his counsel have 
the necessary funds or expertise to perform 
said tests. 

8. 
Appointed Counsel cannot effectively pre- 

pare the defense for Defendant without the 
services of an expert witness to advise him 
concerning the tests and examinations run by 
the law enforcement and judicial agencies 
and no provision has been made for the De. 
fendant to have available to him the kind of 
resources which are available to the State 
through the State Crime Laboratory in order 
that the Defendant can test the validity of and 
the accuracy of any tests which have been run 
by the State and the results of which may be 
introduced into evidence against the defend- 
ant at trial. 

9. 
Under the laws of Georgia, Defendant has 

no right to any pre-trial or pre-arraignment 
‘discovery except to the EXTENT Tarte SrateTs 
obligated to produce information which 
might tend to exculpate the Defendant or miti- 
gate his alleged involvement in the crime for 
which he has been indicted. There is po 
statute_in the law of Georgia giving the De- 
fendant the Tight to COMPpUISOTY 1egal process 
which will require the State to advice the 
Défendant of the basis on which the State 
intends to attempt to prove that the Defendant 
is guilty of the crime for which he has been 
indicted. The absence of any such statutory 
or other law in Georgia, together with the 
indigency of the Defendant and the failure of 
the Court to provide the Defendant with re- 
sources to make his own independent investi- 
gation into certain scientific evaluations    



man filed a writ- 

In to Request the 

ologist or Other 

Defense Counsel 

The motion al- 

) petitioner was 

brimmed that the vari. 

nce tend to connect 

he crime for which 

h defendant under. 

he tests performed 
io not conclusively 
endant, but rather 

eone similar to de- 

s counsel are suffi- 
determine whether 
performed by the 

fous pieces of phys- 
conclusive, or ex- 

rstands that there 
an be run which 
whether or not the 

se from defendant, 
his counsel have 

pertise to perform 

bt effectively pre- 
dant without the 

Ess to advise him 

hminations run by 

judicial agencies 
made for the De- 

b him the kind of 
hble to the State 
boratory in order 

e validity of and 
ch have been run 
of which may be 
ainst the defend. 

hh, Defendant has 
pre-arraignment 

t that the state is 

brmation which 

efendant or miti- 

in the crime for 

H. There is no 

a giving the De- 

bry legal process 
e to advise the 

which the State 
at the Defendant 
ich he has been 
b such statutory 
ether with the 
id the failure of 

endant with re- 

pendent investi- 

Fic evaluations 

  

MOORE v. KEMP 715 
Cite 2s 809 F.2d 702 (11th Cir. 1987) 

indigent; (2) petitioner had been indicted 

for rape and murder; (3) the State had 

assembled various items of physical evi- 

dence including a gun, shoes, clothing, ho- 

siery, foot castings, and had taken from 

the defendant samples of his blood, saliva, 

and hair that may have been examined by 

the Georgia crime lab; (4) some of these 

items of physical evidence tended to con- 

nect petitioner, or a person with physical 

characteristics similar to his, with the com- 

mission of the charged crimes; (5) defense 

counsel could not determine without the 

assistance of an expert whether any tests 

performed by the crime lab were complete 

or conclusive; and (6) defense counsel be- 

lieved that a test could be performed on 

hair samples that “might conclusively 
prove whether or not the hair samples 

found [by the police at the scene of the 

murder] are those from defendant.” 

At a motions hearing, also held on April 

15, defense counsel called the court's atfen- 

tion to his motion for the appointment of an 

expert and, when asked by the court if he 
had anything to say in support of the mo- 

tion, responded: “I think everything that I 
have relative to this would be contained in 

the motion.” Shortly thereafter, the court 

recessed the hearing to give defense coun- 

sel further time to prepare a motion to 

suppress evidence the State had obtained 

during the search of petitioner's residence 

on January 15, 1977, five weeks after the 

murder. Because the court desired to rule 

on the motion to suppress before it ruled 

which form the basis of the State's case, make 
it impossible for the Defendant and his coun- 
sel to adequately prepare a defense to the 
charges against the Defendant. 

10. 

The absence of any such statutory or other 
law in the State of Georgia and the absence of 
any procedure whereby the Court can be re- 
quired to make available to an indigent de- 
fendant the same basic resources which are 
available to the State for the purpose of scien- 
tific evaluation an expert testimony constitute 
a violation of Defendant's right to procedural 
due process of law under the Fifth and Four- 
teenth Amendments to the Constitution of the 
United States. A fundamental fairness re- 
quired by the Fifth and Fourteenth Amend- 
ments to the Constitution are impossible to 
fulfill in Defendant's case for the reasons 

on petitioner's motion for an expert, the 

court did not at that time rule on the mo- 
tion for an expert. 

At the next hearing, held on May 4, 1977, 

the State called Sheriff Bittick to rebut the 

defense’s claim that the warrant issued for 

the search of petitioner's home was not 

supported by probable cause. From the 

sheriff’s testimony, Judge Sosebee learned 

that footprints found near the victim's 

body appeared to have been made by shoes 

with a molded, treadless sole, such as a 

“Hush Puppy” brand shoe, and that a pair 

of "Hush Puppy” shoes matching the size 
of the footprints discovered at the murder 

scene had been found In petitioner's home 

five weeks later. Following the sheriff's 

testimony, the court denied the motion to 

suppress. The following discussion then 

ensued. 

BY MR. FREEMAN: I think my next 

motion was a motion to request the 

Court to appoint an expert witness and 

incorporated in that was the plea in 

abatement. 

BY THE COURT: Plea in abatement 

on what grounds? 

BY MR. FREEMAN: Well, it’s gener- 

ally stated. I think in trying to para- 

phrase the motion, we contend that we're 

entitled because of the peculiar circum- 

stances of this case, we're entitled to an 

ex itness to assist us in deciphering 

evaluations made by the Crime Lab or 

possibly conducting other tests on their 

own. We recognize, apparently, that 

  

  

  

hereinabove set forth and any trial of the 
Defendant on this indictment will, for these 
reasons, violate his rights under the due pro- 
cess clause of the Fifth and Fourteenth 
Amendments to the Constitution and will 
deny him equal protection of the laws under 
the Fourteenth Amendment of the Constitu- 
tion of the United States. 
WHEREFORE, Defendant moves the Court 

to appoint a private, independent crimi- 
nologist to advise and assist the Court ap- 
pointed Attorney in the conduct of his de- 
fense, and in the absence of such appoint- 
ment, Defendant prays that the Court inquire 
into this his plea in abatement, taking evi- 
dence on the questions raised herein if neces- 
sary, and that the indictment against the De- 
fendant be quashed and the charges against 
the Defendant be dismissed.   

 



  

  

  

716 

there’s no statutory right for this, but 

argue to the Court that an absence of 

such a statutory right to obtain an expert 

witness or procedure where we can have 
this made available to us, constitutes a 

procedural and due process violations and 
that the absence of this is a constitution- 

al question and that the indictment 
should be abated because there's no stat- 

utory arrangement where this can be 

granted.!® 

BY THE COURT: Is that all on that 

motion? 

BY MR. FREEMAN: Yes, sir, it’s all 

pretty well set out in the motion, I be- 

lieve, Your Honor. 

BY THE COURT: Does the State have 

anything else that you want to say in 

response to this particular motion? 

BY MR. WALDREP: No, sir, Your 

Honor. Of course, the State has expert 
witnesses or people” that are expert in 

these fields employed to do these investi- 
gations. They don’t actually represent— 

work _for us or work for the defendant, 

they just analyze these Items, when 
they're sent to them at the State Crime 

Laboratory and whatever the results are, 

that’s what they are. We say, of course, 

that he doesn’t have any right to have | 

someone else appointed and actually, 

when you really look to the substance of 

it, I don’t know who the Court would 

appoint to do something like that and the 

only people that the State to do those 

type things are the people at the Crime 

Laboratory. 

BY THE COURT: The Court will over- 

rule that motion in its entirety. 

15. It is apparent from this colloquy and peti- 
tioner’s motion for the appointment of a crimi- 
nologist or other expert, see supra note 14, that 
defense counsel was under the impression that 
Georgia law precluded the court from granting 
his motion even if the due process clause of the 
fourteenth amendment required that it be grant- 
ed. This may explain counsel's failure to make 
the sort of showing we find necessary. 

We are not convinced that the trial judge 
would have denied petitioner the provision of 
expert assistance had counsel made a more sub- 
stantial demonstration of need. Although Geor- 
gia statutory law does not give indigent defend- 

for during his trial. 

809 FEDERAL REPORTER, 2d SERIES 

Several minutes after this discussion the 

court took a brief recess. When the court 

was reconvened, defense counsel made the 

following statement: 

BY MR. FREEMAN: Your Honor, 

could I put something else in the record 

before we get on to the Brady motion? 

In connection with the motion to appoint 

a criminologist which the Court has al- 

ready overruled, I didn’t have this letter 

with me, didn’t have it in front of me at 

the time but the District Attorney was 

stating that there wasn’t anybody avail- 

able that could be appointed. I just 

wanted to state in our place that we do 
have somebody..that's available, is Dr. 

W.L. Woodford, 585 Lakeshore Drive, 
N. E., Atlanta, and who, we think, would 
charge approximately $1500.00 to make 

some of these tests and perform some of 

this analyses, so we do have someone 

that’s available, if the Court had seen fit 

to appropriate the money for it. I just 

wanted to put that in the record. 

Petitioner never renewed his motion for 

the appointment of an expert either prior to 

In determining the 

merits of petitioner's request for expert 

assistance, therefore, we consider only the 

facts available to Judge Sosebee on May 4, | 

when he ruled on petitioner's motion for ) 

the appointment of an expert. : 

The facts available to Judge Sosebee 

came from four sources: the transcript of 

petitioner’s January 24, 1977 committal 

hearing before Judge Whitmire; the tran- 

script of the testimony Sheriff Bittick gave 

at Roosevelt Green's committal hearing: 

held the same day; '¢ the evidence present- 

ants a right to obtain expert witnesses at govern- 
ment expense, we find nothing in Georgia case 
law, and have been cited to nothing, that would 
have precluded the trial judge from granting 
such assistance had he concluded that not to do 
so would create a reasonable probability that 
petitioner would not receive a fair trial. 

16. Although Judge Whitmire held both petition- 
er's and Roosevelt Green's committal hearings, 
as we have indicated, see supra note 12 and 
accompanying text, the transcript of petitioner's 
hearing and the transcript of Sheriff Bittick's 
testimony at Green's hearing were made a part 
of the record before Judge Sosebee. We there-    



his discussion the 

When the court 

counsel made the 

Your Honor, 

else in the record 

e Brady motion? 

motion to appoint 

the Court has al- 

't have this letter 

in front of me at 

ict Attorney was 

't anybody avail- 

ppointed. I just 

place that we do 

available, is Dr. 

Lakeshore Drive, 

o, we think, would 

$1500.00 to make 

d perform some of 

do have someone 

Court had seen fit 

ey for it. I just 

he record. 

red his motion for 

pert either prior to 

i determining the 

equest for expert 

consider only the 

Sosebee on May 4, 

foner’s motion for 

pert. 

o Judge Sosebee 

the transcript of 

, 1977 committal 

hitmire; the tran- 

heriff Bittick gave 

ommittal hearing: 

e evidence present- 

witnesses at govern- 
thing in Georgia case 
o nothing, that would 
judge from granting 
cluded that not to do 
able probability that 
ve a fair trial. 

ire held both petition- 
s committal hearings, 
e supra note 12 and 
hnscript of petitioner's 
bt of Sheriff Bittick's 
ing were made a part 
e Sosebee. We there- 

  

  

MOORE v. KEMP 717 
Cite as 809 F.2d 702 (11th Cir. 1987) 

ed at the May 4, 1977 suppression hearing 

before Judge Sosebee; and petitioner's 

written motion for the appointment of a 

criminologist or other expert. The tran- 

script of petitioner's committal hearing de- 

scribed the murder scene and how Ms. Al- 

len died. It also contained the testimony of 

the key prosecution witness, Thomas Pas- 

by, who related what petitioner had told 

him about the robbery of the Majik Market 

and the kidnapping, rape, and murder of 

Ms. Allen. The transcript of Sheriff Bit- 

tick’s testimony disclosed that Linda Bar- 

ton, the serologist, had tested seminal fluid 

removed from the victim's body, that the 

fluid had come from a person possessing 

type A blood, and that Roosevelt Green had 

type B blood. It also revealed that Barton 

had determined that Roosevelt Green’s hair 

was present on some gloves the police 

found at the murder scene!” The May 4 
suppression hearing informed Judge Sose- 

bee that footprints found near the victim’s 

body appeared to have been made by shoes 

similar to those found in petitioner's bed- 

room when the police searched his resi- 

dence. 

Petitioner's motion and the statements 

his lawyer made in support of the motion '® 

provided Judge Sosebee with little addition- 

al information about the State’s case and 

petitioner's need for expert assistance. 

Liberally read, the motion informed the 

court that the State had collected various 

items of evidence from the crime scene, the 

petitioner's home, and the petitioner’s body 

(blood, saliva, hair) and that some of this 

evidence may have been examined at the 

state crime lab. The motion also informed 

  

fore assume, although the record is silent on the 
point, that Judge Sosebee had read these tran- 
scripts by the time he ruled on petitioner's re- 
quest for expert assistance. 

17. Sheriff Bittick may have been mistaken when 

he testified at Green's committal hearing that 

Barton had made this determination. At trial, 

she gave no such testimony; rather, Warren 
Tillman, the microanalyst, explained the results 
of the tests performed on the various hair sam- 
ples in the case. 

18. Petitioner's attorney had two opportunities 
prior to Judge Sosebee’s ruling at the conclusion 

the court that certain undescribed tests 

performed by experts at the crime lab may 

have buttressed the State’s claim that peti- 

tioner was present when the rape and mur- 

der took place. 
  

In sum, the information before Judge \ 
d Sosebee from these four sources indicate 

the following: first, that the State, on the 

basis of petitioner's admissions to Thomas 

Pasby, could establish that petitioner and 

Roosevelt Green robbed the Majik Market 

and kidnapped, raped, and murdered Ms. 

Allen; second, that the hair tests per- 
formed by Linda Barton placed Green at 

the scene of the murder, but that the tests 

she performed on seminal fluid taken from 

the victim's body cast some doubt on 

whether he had raped the victim; third, 

that someone at the state crime lab, com- 

paring plaster casts of footprints at the 

murder scene with shoes later found in 

petitioner's bedroom, could testify that a 

person wearing shoes like petitioner's may 

have been present when Ms. Allen was 

murdered. The i id not dis- he information. did not dis 
close, and petitioner’s counsel did not spec- 

rT peti- 
tioner’s blood, saliva, and hair and the 

mes 1 ™for did counsel indica 

what tests the state crime lab may have 
conduc on those samples. All Judge 

Sosebee knew wags that petitioner's lawyer 
wanted an expert of some kind to review 

any tests the state crime lab may have 

performed and to conduct an unspecified 

number of tests that counsel declined to 

describe. 

We do note that, on April 12, 1977, three 

days before petitioner’s attorney presented 

  

  

of the May 4 hearing—the May 4 hearing itself 
and the April 15 hearing—to inform the court 
about these matters and to urge the court to 
appoint an expert; yet, he remained silent. 

19. Linda Barton's test of the seminal fluid taken 
from the victim's body indicated that the fluid 
came from a male with type A blood. Green 
had type B blood; thus, the fluid she examined 
could not have come from him. Green, how- 
ever, could still have raped the victim; the 
record does not show whether seminal fluid 
existed that Barton did not test. 

  

AX 

  

  

 



    

  

  

718 

his motion for the appointment of an expert 
to Judge Sosebee, the prosecutor gave him 
copies of the reports he had received from 
the state crime lab and the names of the 
experts who had authored the reports and 
would testify for the prosecution. Inexplic- 

ably, petitioner's counsel never informed 

Judge Sosebee what those reports disclosed 
or the areas O EXDErtise Of the persons 
who had made them and, presumably, 
would testify at trial. Counsel also failed 
to inform Judge Sosebee whether he had 
interviewed the State’s experts about any 
tests they may have performed and, if not, 

whether they would be amenable to such 

interviews. A thorough study of the crime 

V4 lab reports and interviews with the authors | 

of the reports may have eliminated any 

_ need for expert assistance, At the very 

“least, if defense counsel had been more 

diligent in his study and more specific in 

his motion, Judge Sosebee would have been 

more fully apprised of the prosecution’s 

case and of the defense’s need, if any, for 

expert assistance. 

We also observe that petitioner did not 
advise the court about the kind of expert 
he desired or the role the expert would 

play. The motion merely requested the 

court to appoint a “criminologist or other 

expert witness.” It is clear, however, that 

petitioner did not desire a “criminologist” 
but instead wanted an expert or experts 
whose expertise matched that of each of 
the State's experts. Of course, because 
petitioner did not inform the court about 
the expertise of any of the State’s witness- 
es, the court could not have known exactly 

what type of expert petitioner needed or 

20. A criminologist is a person who specializes in 
criminology. Criminology is defined as “the 
scientific study of crime as a social phenome- 
non, of criminal investigation, of criminals, and 
of penal treatment.” Webster's Third New Inter- 
national Dictionary 537 (1976). 

21. At trial, petitioner's attorney said nothing to 
the court indicating that he needed expert ssist- 
ance to cross-examine the State's experts, War- 
ren Tillman and Linda Barton. See supra note 
15. In fact, he effectively and comprehensively 
cross-examined thesc.experts-at.Jength. It can 
be inferr&d from counsel's conduct)that the trial 
court's refusar to appoint an expert did not deny 

809 FEDERAL REPORTER, 2d SERIES 

requested. On May 4, after the court had 

heard argument of counsel and ruled on 

petitioner's motion, defense counsel did of- 
fer the name of an expert who “was avail 
able to be appointed,” but he did not inform 
the court of that person's expertise or what 

he could have contributed to the defense. 

““Petitioner’'s motion, considered in thé 

hight of the record before Judge Sosebee 

when he made his dispositive ruling, failed 

to create a reasonable probability that ex- 

pert assistance was necessary to the de- 

fense and that without such assistance peti- 

tioner’s trial would be rendered unfair. 

We accordingly hold that the trial court did / 
nat err in denying petitioner's motion. 

Having concluded that the trial court did 

not err in denying petitioner's motion for 

the appointment of an expert, we need not 

determine whether at trial petitioner’s fail- 
ure to obtain the requested assistance in 

fact deprived him of the ability to present 

his defense.2! Thus, we affirm the district 

court's rejection of petitioner’s due process 

claim. 

IIL 

As we have indicated in Part L.A., supra, 
the State’s key witness was Thomas Pasby. 

In fact, without Pasby’s testimony, it is 

doubtful whether the case would have gone 

to the jury. There were no eyewitnesses to 

the robbery of the Majik Market or to the 

kidnapping, rape, and murder of Ms. Allen, 

and the physical evidence and expert opin- 

ion testimony the prosecution presented 

merely suggested that petitioner could 

have been a perpetrator of these crimes. 

petitioner. a reasonable opportunity to present 
his case. 

22. Without Pasby's testimony, the State's case 
was purely circumstantial: petitioner made an 
incriminating statement to Johnny Johnson 
three days prior to the robbery, petitioner and 
Green were friends, and petitioner was seen in 
Cochran with Green on the afternoon of the 
robbery. The expert testimony relating to the 
physical evidence recovered from petitioner's 
home and from the crime scene did not prove 
that petitioner was a participant in the crimes. 
The testimony of Warren Tillman established 
that shoes similar in size and tread design to the   

  

 



      
      

   

  

   
   

  

   

    

   

    

    

   

    

   

   

  

   

    

   

   

  

   

    

   
   
   

            

   

    
   
        
     
    

             

      

ation now ad- 

"8S NO reason to 

f Mr. Allen in 

t had put on his 
hearing. The 

g consisted of 

s innocence, his 
bther’s plea for 

ny, purportedly 
daughter’s lack 
ya, did not “re- 

nse adduced at 

Furthermore, 

foner’s defense 

fas not present 

He testified 
question, after 

of alcohol, he 

was therefore 

k occurred. At 

Lioner reassert- 

any involve- 
this testimony, 
ble for him to 

‘as present at 

ed robbery or 
tse Ms. Allen 

1 left with him. 

'e been totally 

testimony at 

was never ad- 

ause it was 

uld not have 

Allen's testimo- 
put it, and his 

n admitted for 

substance of 

have been ad- 

neing purpose 
I another day. 

the district 

er’s Ake claim 
» Part II and 
sition of the 

opinion. For 

I, we remand 
for an eviden- 

Brady/Giglio 
at claim, and 

   

   

  

  

MOORE v. 

Cite as 809 F.2d 702 

depending on its ruling thereon, the district 

court shall issue a writ of habeas corpus 

directing the State either to grant petition 

er a new trial or to grant him a new 

sentencing proceeding. 

AFFIRMED in part; REVERSED in 

part; and REMANDED, with instructions. 

RONEY, Chief Judge, concurring in part, 

specially concurring in part, and dissenting 

in part, in which FAY, Circuit Judge, joins: 

I concur in the judgment which reverses 

the denial of habeas corpus relief on the 

instruction issue, for the reasons set forth 

in Judge Tjoflat’s opinion. 

I concur in reinstating the panel opinion 

on all other claims not discussed in Judge 

Tjoflat’s opinion. 

specially concur in the denial of relief 

on The Ake ground for the reasons set 

forth in both Judge Tjoflat’s opinion and 

Judge Hill's opinion. 

I dissent from the grant of relief on the 

Brady/Giglio issue for the reasons set 

forth in Judge Hill's dissent. 

I would not grant relief on the issue 

concerning the father’s testimony for the 

reasons set forth in Judge Hill's opinion for 

the panel, in which the discussion was con- 

cluded with: 

Thus, it appears that the prosecution 

properly presented evidence of character- 

istics of the victim to the jury. In the 

brief evidence taken, the prosecution did 

not undertake to demonstrate the racial, 

ethnic, or other forbidden characteristic 

of any party. We cannot say that the 

trial judge’s balancing of the relevancy 

of Mr. Allen’s testimony against its prej- 

udice was constitutionally faulty. We 

are not prepared to hold that it violates 

the constitution for the jury to know who 

it was that was the victim of murder. 

Moore v. Zant, 122 F.2d 640, 646 (11th 

Cir.1983). To the extent the judgment of 

the Court denies relief on this issue, 1 

concur; to the extent it grants relief, 1 

dissent. 

In sum, I would reverse the district 

court's judgment and remand with instruc- 

KEMP 735 
(11th Cir. 1987) 

tions to grant relief on the instruction is- 

sue, but deny relief on all other claims. 

(GODBOLD, Circuit Judge, dissenting in 

part an concurring in part: 

On the Ake issue, I respectfully dissent 

from the opinion and holding of the court 

(Part II of the opinion by Judge Tjoflat) 

and 1 join in Part I of the dissenting opin- 

jon by Judge Johnson. 

On the Giglio issue, I concur in the opin- 

ion and holding of the court (Part III of the 

opinion by Judge Tjoflat). 

On the jury instruction issue, I concur in 

the opinion and holding of the court (Part 

IV of the opinion by Judge Tjoflat). 

On the comparable worth issue, I concur 

in Part II of the dissenting opinion by 

Judge Johnson except the part thereof re- 

garding the jury argument concerning de- 

terrence. 

  

ircuit Judge, concurring in part 

and dissenting in part, in which RONEY, 

Chief Judge, FAY and EDMONDSON, Cir- 

cuit Judges, and HE? Senior Cir- 

cuit Judge, joins: 

I concur in the judgment of the court, 

insofar as the sentence of death is con- 

cerned. Without reaching the constitution- 

ality of the instructions given in this case 

had the judge not misspoke and instructed 

the jury that if they found an aggravating 

circumstance their verdict “would be” 

death, I agree that the instructions that 

were given do not pass ituti us- 

ter/ 1 also agree that petitioner has not 

shown that, under the Supreme COUrLs 

recent decision in Ake v. Oklahoma, 470 

US. 68, 105 S.Ct. 1087, 84 LEd.2d 53 

  

      
   

(1985), he was constitutionally entitled to 

the assistance of non-psyc atric experts to 

ald him in his defense. I write separately 

on that issue because my analysis of that 

question differs somewhat Irom at of the 

majority opinion. I must’ respectfully dis- 

sent, however, from the majority’s holding 

that petitioner is entitled to an evidentiary 

hearing on the Brady/Giglio claim he 

presents. I address petitioner's Ake claim 

   

  

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736 

in Part I and the Brady/Giglio claim in 
Part II. 

I. NON-PSYCHIATRIC EXPERT 
ASSISTANCE UNDER AKE v. 

OKLAHOMA 
~Lhe.majority opinion concludes that peti- 

tioner’s due process rights were not violat- 
ed by the trial court’s refusal to appoint 
experts to assist him in the presentation of 
his defense because he failed to make the 
requisite showing that an expert would ai 
the defense or that the denial of such as- 
sistance would result in a fundamentally 
unfair trial. See Ake ». Oklahoma, 470 
U.S. 68, 82-83, 105 S.Ct. 1087, 1096-97, 84 
L.Ed.2d 53 (1985); see also Caldwell wv. 
Mississippi, 472 U.S. 320, 323 n. 1, 105 
S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 321 (1985). 
I would not turn the analysis of this issue 
on that conclusion. Petitionerl ha proba- 
bly shown that expert =ssistance would 
have aided his defense. J would thus pro- 
ceed to an analysis of whether und e, 
petitioner was constitutionally entitled"to 

e expert assistance he sought. 
At the outset I observe that the holding 

in_Ake is simply that where the defendant 
makes a pre-trial showing that his sanity is 
likely to be a significant issue in the case 
he is entitled to the assistance of an inde- 
pendent psychiatrist at state expense if he 
cannot afford one. The issue of sanity vel 
mom is a peculiar issue in criminal law, and 
the holding in Ake was rincipally motivat- 
ed by the Court's recognition that to prove 
a valid insanity defense one must necessar- 
ily present the testimony of psychiatrists. 
Analyzing the probable value of the psychi- 
atric assistance sought in Ake and the risk 
of error in the proceeding if the assistance 
were not offered, the Supreme Court obvi- 
ously considered essential to its decision 

1. The Court was careful to note, however, that such a defendant is not constitutionally entitled 
to choose a psychiatrist of his own personal liking or receive funds to hire his own. Rather 
the Court required only that he be provided access to a competent, independent psychiatrist 
to assist him in proving his defense. Ake, 470 

809 FEDERAL REPORTER, 2d SERIES 

the “reality that we recognize today, name- 
ly, that when the State has made the de- 
fendant’s mental condition relevant to his 
criminal culpability and to the punishment 
he might suffer, the assistance of a psychi- 
atrist may well be crucial to the defend- 
ant’s ability to marshal his defense.” Ake, 
470 U.S. at 80, 105 S.Ct. at 1095. The 
court commented at length upon the arcane 
nature of the inquiry into whether one is 
legally insane, noting in particular the in- 
dispensable nature of psychiatric testimony 
in presenting an insanity defense. The is- 
sues involved “inevitably are complex and 
foreign” to the common knowledge of ju- 
rors, so that “the testimony of psychia- 
trists can be crucial and ‘a virtual necessity 
if the insanity plea is to have any chance of 
success.”” Id. at 81, 105 S.Ct. at 1096. 
The Court therefore held that the state's 
financial interests must, as a matter of 
constitutional law, yield to the interests of 
the state and the defendant in the accuracy 
of the criminal proceedings in those cases 
in which the defendant can demonstrate to 
the trial court before trial that his sanity is 
likely to be a significant factor in his de- 
fense. Id. at 83-84, 105 S.Ct. at 1097.1 

This, of course, is not a case involving 
the issue of sanity vel non. The defendant 
interposed a plea of not guilty based on the 
facts of the offense, not on the condition of 
his mind. In Ake, the denial of the indi 
gent defendant’s request for psychiatric as- 
sistance had the necessary. effect of almost 
completely precluding him from presenting 
any claim of insanity to the jury, regard- 
less of the validity of the defense. In this 
case, although it appears that appellant 
might have been aided at trial by the assist- 
ance of experts of his own, his inability to 
obtain their services did not have the neces- 
sary. effect of preventing him from assert. 

U.S. at 83, 105 S.Ct. at 1097; see also Martin v. 
Wainwright, 770 F.2d 918, 933-35 (11th Cir. 
1985). This is because the constitutionally cog- 
nizable objective served by the provision of a 
psychiatrist's assistance is greater accuracy in 
the judicial proceedings, not a greater likelihood    



gnize today, name. 
has made the de. 

on relevant to his 
to the punishment 

stance of a psychi- 
ial to the defend- 

his defense.” Ake, 
ot. at 1095. The 

Lh upon the arcane 
to whether one is 

particular the in- 

chiatric testimony 

- defense. The is- 
are complex and 
‘knowledge of ju- 

mony of psychia- 
© virtual necessity 

ave any chance of 

U5 S.Ct. at 1096. 

that the state's 

as a matter of 

the interests of 

nt in the accuracy 

gs in those cases 

in demonstrate to 

that his sanity is 
factor in his de- 

S.Ct. at 1097.1 

a case involving 
The defendant 

ilty based on the 

In the condition of 
enial of the indi- 

or psychiatric as- 

F effect of almost 

from presenting 

the jury, regard- 
defense. In this 

s that appellant 

ial by the assist- 

1, his inability to 
It have the neces- 

him from assert- 

see also Martin v. 
933-35 (11th Cir. 

onstitutionally cog- 
the provision of a 
eater accuracy in 

fh greater likelihood 

  

MOORE v. KEMP 737 
Cite as 809 F.2d 702 (11th Cir. 1987) 

ing and su i i 2 A valid 

claim by the defendant that he was not at 

the scene of the crime ordinarily may be 

supported effectively at trial in a wide vari- 

ety of ways. Regardless of the nature of 

the prosecution's proof on such an issue, 

expert testimony constituted but one of the 

many effective means by which such a 

claim might be substantiated. In this case, 

appellant offered little but his own testimo- 

ny to rebut the evidence presented by the 

prosecution to show that he was at the 

scene of the crime when it occurred and 

had committed it. I certainly would not 

hold, however, that simply because. appel- 

lant’s defense was weak on the facts and 

methods of proof otherwise available to 

him, he was constitutionally entitled to the 

  

  

  

  

  

  

  

  assistance of expe i velo 

To extend Ake as appellant suggests 

would impose an extraordinarily far-reach- 

ing and costly burden on the states and 

their taxpayers. There are obviously many 

important issues in criminal trials whose 

presentations could conceivably be en- 

hanced by expert testimony. Ake however, 

is a narrow holding premised ‘upon the pe- 

culiar role psychiatric testimony necessar- 

ily plays in the assertion of an insanity 

defense or, in a capital sentencing proceed- 

ing, evaluating mental condition as an ag- 

gravating or mitigating circumstance. Ab- 

sent further direction from the Supreme 

chiatric expert assistance is, because of the 

ure of the issue on which it is sought, as 

vital\to resolution of the issue as psychiat 

Fc assistance was in Ake, the Constitution 

i does not require that it be provided in a 

and support-his-theory of the case before criminal trial [therefore agree with the 

the jury. Further, appellant was not enti- ajority that petitioner is not entitled to an 

tled to the assistance of his own experts 

simply because the state relied in part upon 

Expert testimony to prove Tts case. The 
  

purpose of providing expert assistance _to 

the defendant is not to even the score. Th 

accuracy-enhancing value of affording ex- 

pert assistance to the defendant and the 

risk of an erroneous determination of guilt 

if such assistance is not provided are not 
———— 

increased significantly in a case like appel- 

lant’s by the extensive use of experts by 

the state or by the defendant’s inability to 

present any other evidence in support of 
the defense he chooses to assert. Those 

circumstances might render expert assist- 

ance to such a defense helpful, but they do 

not render such assistance significantly 

more essential to the accurate determina- 

tion of whether the defendant committed 

the crimes with which he was charged. 

  

  

  

    

that the defendant will succeed with his defense. 

See Ake, 470 U.S. at 77-83, 105 S.Ct. at 1094-97. 

2. Whether the defendant in fact would have 

benefitted substantially from the assistance of 

experts of his own is not free from doubt. In- 

deed, such expert testimony as was offered was 

less than conclusive, and both direct and cross- 

examination of the state's expert witnesses am- 

ply demonstrated the limited and qualified na- 

ture of their opinions. A reading of this record 

evidentiary hearing in the district court on 

his claim that his constitutional rights were 

violated when he was tried following the 

trial court’s refusal to provide him with 

funds to hire experts to aid him in the 

formulation and presentation of his de- 

fense. 

II. THE BRADY/GIGLIO CLAIM 

Moore claims that his rights under Bra- 

dy v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 

10 L.Ed.2d 215 (1963), and Giglio v. United 

States, 405 U.S. 150, 92 S.Ct. 763, 31 

L.Ed.2d 104 (1972), were violated when the 

prosecutor failed to reveal certain informa- 

tion that would have aided the defense in 

its attempts to undermine the credibility of 

Thomas Pasby. This claim was litigated in 

the state courts, but in those proceedings 

Pasby’s probation file was not made avail- 

persuades me that experts who might have been 

available to the defendant would have done 

little more to limit the force of the testimony of 

the state’s experts than the latter, in candor, did 

themselves. As my analysis indicates, however, 

I am willing to assume for the purposes of 

determining appellant's constitutional claim 

that the assistance to which he now claims he 

was entitled in fact would have done him some 

good.   
  

 



  
  

  

  

  

740 

Pasby says that he didn’t talk about this 
case until after he'd been in jail several 
weeks or several days, some period of 
time, and in any case, he was a suspect 
while he was in jail, and that when he 
talked about it, he talked about it after 
Roy Olinger—you remember when I read 
that statement from Olinger, what he 
told Pasby, that unless he told what they 
wanted him to tell, told the truth, told 
something, that he was going to get the 
same punishment as everybody else did. 
He didn’t change his story; up until that 
point, he had told them he didn’t know 
anything about it. He didn’t say he 
knew anything about it until after they 
told him they were going to put pressure 
on him. Roy Olinger was on the witness 
stand yesterday, I called him for direct 
examination. There was not a single 
question asked him by the State to 
show—there was no effort made to deny 
that he actually told Pasby that. If he 
didn’t tell him that, the State could—he 
could have told them. I think the only 
conclusion is that he actually did tell 
Pasby, threatened him that he was going 
to be punished for it himself unless he 
told about it. 

Thus Pasby was heavily impeached with 
the fact that he was a suspect in this very 
murder and had failed to implicate petition- 
er until he was threatened with prosecution 
himself. The prosecutor did not address 
directly the challenge posed by defense 
counsel's impeachment of Pasby in that 
manner, focussing instead on the physical 
and testimonial evidence tending to corrob- 
orate Pasby’s testimony. Yet the jury ob- 
viously believed Pasby. Thus defense 
counsel was unable to influence the jury’s 
assessment of Pasby’s credibility with the 
unchallenged assertion that Pasby’s testi- 
mony was motivated at least in part by the 
fear that he, himself, might be prosecuted 
for the Allen murder. In light of that fact, 
I cannot believe that the jury might have 
been moved by the argument that Pasby’s 
testimony was somehow influenced by his 
probationary status at the time he testified 
or by any expectation of favorable treat- 
ment on any other charge. In short, if the 

809 FEDERAL REPORTER, 2d SERIES 

jury did not believe Pasby was lying to 
avoid a murder prosecution, they surely 
would not have believed he was lying for 
any of the reasons petitioner suggests. 

It is important to me that prosecutors 
respect their obligations under Brady and 
Giglio, and I am willing to assume with the 
majority that the prosecutor in this case 
was under an obligation to turn over to the 
defense any information found in Pasby’s 
probation file that might have been useful 
to the defense in impeaching the witness at 
trial. I am deeply disturbed, however, by 
the prospect of a federal district court or- 
dering the release of a convicted murderer 
subject to retrial at this late date on the 
basis of circumstances as unlikely to have 
had anything to do with his confinement as 
those that have been alleged in this case. 
Because I cannot find there to exist a rea- 
sonable probability that the outcome of pe- 
titioner’s trial would have been affected by 
any of the information petitioner alleged 
was wrongfully withheld, I cannot agree 
with the majority that an evidentiary hear- 
ing is warranted on petitioner's Bra- 
dy/Giglio claim. From this portion of the 
majority’s holding I therefore respectfully 
dissent. 

JOHNSON, Circuit Judge, concurring in 
part and dissenting in part, in which 
KRAVITCH and HATCHETT, Circuit 
Judges, join, and in which GODBOLD, Cir- 
cuit Judge, joins Part I and Part II in part, 
and in which ANDERSON and CLARK, 
Circuit Judges, join Part I: 

I join the majority’s opinion as to Sec- 
tions I, III, and IV. With deference, I 
disagree with its disposition of the Ake 
issue in Section II, and I would more 
squarely address the problems raised by 
certain testimony and by the prosecutor's 
comments that the majority discusses in its 
Section V. 

I. The Ake Issue: 

In Ake v. Oklahoma, 470 U.S. 68, 105 
S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Su- 
preme Court considered whether the state  



         
     

   
   
   

    

    

    

as lying to 

sy surely 
hs lying for 
r suggests, 

prosecutors 

Brady and 
me with the 

in this case 

, over to the 

in Pasby's 

been useful 

e witness al 

however, by 

ict court or 

ed murderer 

date on the 

ely to have 

nfinement KB 

in this case. 

exist a rep 

tcome of pe 

Ih affected by 

Loner alleged 

-annot agree 

hentiary hear: 

oner's Bra 

rtion of the 

respectfully 

    

   
   

  

   

  

   
   
   

    

   
   

    

    

  

   

          

   

   
   

concurring in 

in which 

TT. Circuit 

YDBOLD, Cir 

Part 11 in part, 

and CLARK, 

on as to Sec 

deference, J 

1 of the Ake 

would more 

ms raised bY 

prosecutor’# 

hiscusses in it# 

     
   

      

      
       
    

   

   
      U.S. 68, 105 

1985), the Su 

sther the state    
    
    

  

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MOORE v. KEMP 
741 

Cite as 809 F.2d 702 (11th Cir. 1987) 

in a capital case is required, by the consti- Thus it is solely upon the third factor, 

the probable value 0 sistance 

tutional guarantee of due process of law, to 

provide an indigent defendant with a psy- _amd~the riSK™01 error attendant upon its 

chological expert when insanity is offered demal, that courts will focus in deciding 

as a defense. Eight of the Justices 80 held. these questions. z the Supreme 

They gave express recognition to the tre- Court noted six factual criteria that dictat- 

mendous effect that uncontested expert ed the need for state appointed assistance 

testimony generally has upon the fact find- in Ake's case. Id. at 84-88, 105 S.Ct. at 

er, id. at 81, n. 7, 105 S.Ct. at 1096, n. 7, 1098-99. But the Court was careful to 

and then held that “[w]hen the defendant is pote, in identifying these factors, that it 

able to make an ex parte threshold show- was setting forth neither a touchstone nor 

ing to the trial court that his sanity is likely 5 catechism. Id. at 86, n. 12, 105 S.Ct. at 

to be a significant factor in his defense, the 1099 n. 12. The Court reaffirmed its un- 

need for the assistance of a psychiatrist is willin nets ee 
toct in that 

readily apparent. It is in such cases that a Cali ry I Call ie v. Mississippi, 472 

Se may be devastated by hy absence (7. 320, 323-324, n. 1, 105 S.Ct. 2633 26317 

013 psychiatric examination and testimo- 1, 86 L.Ed.2d 231 (1985) (rejecting reauest 

ny..5] id 82-83, 105 S.Ct. at 1097. £or criminal investigator, fingerprint expert 

In identifying this constitutionally pro- and ballistics expert because petitioner “of- 

tected right, the Court.set forth a_three- fered little more than undeveloped asser- 

pronged test to be considered in determin: tons that the requested assistance would 

ing if an indigent capital defendant is enti- pe beneficial. ...”). 

  

  

  

  

tled to state-paid expert assistance: 1) “the 
A - ” 

private interest that will be affected by the Caldwell, read in conjuncuon—Lx 

action of the State”; 2) “the governmental teaches us several things. First} it reaf- 

firms that the obvious object e Court's 

interest that will be affected if the safe- 

guard is_to be provided”; and 3) “the prob- reticence in Ake was the need for flexible 

able value of the additional or substitute decisionmakifg tailored to the facts of a 

procedural safeguards that are sought, and given case. Capital cases do not lend them 

the risk of an erroneous deprivation of the selves to rigid, ritualistic formulae. sec.) 

affected interest if those safeguards are ond, it belies the state's suggestion tha 

not provided.” 470 US. at 77, 105 S.Ct. at Ake must be read narrowly and confined to 

1094. It is clear from the Court's analysis, its facts. Caldwell’s footnote 1 suggests 

however, that in capital cases prongs one that the Court was willing to entertain 

and two will always yield -dentic results: extending Ake in the fashion Moore re- 

the private interest ‘is “almost uniquely quests today. Rather than rejecting the 

compelling,” “obvious and weighs heavily claim out of hand as inappropriately 

in our analysis;’ the state’s interest is stretching Ake to a different question, the 

Court refused to grant relief only because 

comncident with that of the individiral==in an 

accurate and fair verdict. Id. at 77-80, 105 Caldwell failed to make a showing of suffi- 

S.Ct. at 1094-95. 
cient need under Ake’s flexible standard.! 

1) Other circuit courts have considered favorably 

the question of “constitutional entitlement to 

non-psychiatric experts in capital cases. 

Williavesv- Martin, 618 F7d71021, 1025-26 (4th 

Cir: 1980) (“There can Be no doubt that an effec- 

tive defense sometimes requires the assistance 704 F.2d 1487, 14 

the ... appointment of investigative assistance 

for indigent defendants in order to insure effec- 

tive preparation of their defense by their attor- 

neys."), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 

43 L.Ed.2d 412 (1975); cf. Westbrook v. Zant, 

94-97 (11th Cir.1983) (state 

hiatric or psychological ex- 

of an expert witness. ... Moreover, provision must furnish psyc 

for experts reasonably necessary to assist indi- rts to indigent capital defendant if evidence 

not available from other sources is necessary to 

gents is now considered essential to the opera- 

tion of a just judicial system.”); Mason v. Arizo- prove mitigating circumstances); Knott. Ma- 

na, 504 F.2d 1345, 1351 (9th Cir.1974) (“[Tlhe bry, 671 F.2d 1208, 1212-13 (8th Cir.1982) (fail- 

effective assistance of counsel guarantee of the are-of counsel to obtain expert to contradict 

Due Process Clause requires, when necessary, government witness may constitute “constitu- 

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742 

The majority opinion today accepts, for 

the sake of argument, the proposition of 

extending Ake to non-psychiatric experts. 

Thus I believe that our query today is not 
whether Ake may be logically and appropri- 

ately extended to such experts. Rather we 

must decide two questions: A) how should 

courts decide whether a defendant is enti- 

tled to such assistance given the elastic 

rule that Ake molded; and B) whether 

Moore made a showing before the trial 

court of his need for such assistance suffi- 

cient to meet the measure of this test. The 

majority crafts such a test in its Section II, 

and then answers the second question in 

the negative. Because I believe that the 

majority’s reading of Ake creates a prover- 

bial “Catch-22,” making it impossible for 

all but the most nimble (and prescient) de- 

fendant to obtain expert assistance under 

Ake, 1 would restructure the majority's 

test and then answer the second question 

affirmatively, based upon the record before 
us. 

A 

The majority today attempts to bring this 

case under the aegis of Caldwell, arguing 

that Moore failed to make a showing of 

need for an expert that went beyond mere 

ipse dirit. The majority correctly views 

Ake and Caldwell as requiring a defendant 
seeking the assistance of an appointed ex- 

pert to show that a reasonable probability 

exists both that such an expert would be of 

assistance to his defense and that denial of 

tional flaw in the representation of a defend- 
ant....”). The former Fifth Circuit considered 
this question in Hoback v. Alabama, 607 F.2d 
680, 682 & n. 1 (5th Cir.1979), and said that, 

while there might be some situations where 
states could be required to furnish experts, that 
question need not be decided in that case. 

2. Nor can I accept the state's assertion that in 
order to justify appointment of experts the de- 
fendant must present “concrete evidence ... as 

to specifically what other information he could 
have obtained by the use of an independent 
expert, that was not available to him by an 
examination of the state’s expert's [sic]....” 
Supplemental Brief of Appellee at 19-20. First, 
the Court in Ake imposed no such requirement 
of proof. Second, the state’s crabbed reading 
belies the tone and spirit of the Supreme Court's 

809 FEDERAL REPORTER, 2d SERIES 

expert assistance would result in a funda- 
mentally unfair trial. However, the majori- 

ty engrafts upon that standard strict re- 

quirements that make relief unobtainable. 
The majority demands, as the price for a 

favorable ruling upon a request for assist- 
ance, that the defendant provide a specific 

description of the expert desired and why 
the assistance of-that-expert-is-necessary. 
If assistance is needed to confront the pros- 

ecution’s case, the majority requires the 

defendant to detail both the nature of the 

prosecution’s case and how the requested 

expert would be useful in challenging that 
case. 

I cannot agree with this approach for 

two reasons.? First, the standards the ma- 

jority creates actually contravene the flexi- 

ble approach announced in Ake and Cald- 

well. By mandating essential elements in 

applying Ake’s third prong, the majority 

does precisely what the Supreme Court de- 

clined to do: it determines which “of these 

factors, alone or. in combination, is.neces- 

sary to make [a] finding [that a defendant 

is_entitled to state-provided expert assist- 

ance].” 470 U.S. 86, n. 12, 105 S.Ct. at 

1099, n. 12. The majority thus impermissi- 

bly limits the interplay of factual considera- 

tions, unique to each case, that the Su- 

preme Court sought to preserve in deciding 

this question. 

Second, even accepting the legitimacy of 

any formal set of points for decision, the 

majority’s standards are_too exacting “be- 
cause they require the defendant to pos- 
  

  

holding. There was no evidence in Ake to sug- 
gest that the expert the defendant sought would 
necessarily contradict state experts. Nor was 
there evidence that his witness would provide 
evidence that was not available from other 
sources or from cross-examining state witness- 
es. 

Experts are the “basic tools” necessary for the 
defendant to marshal his defenses. Experts as- 
sist, inter alia, in gathering and interpreting 
facts and drawing conclusions from them, in 
formulating strategies for cross-examining the 
state’s experts, and in translating scientific jar- 
gon into terms understandable to the fact find: 
er. Ake, 470 U.S. at 77-82, 105 S.Ct. at 1094-96. 

The Supreme Court's concern was clearly more 
expansive than the state here admits.   

  

 



kult in a funda- 

ever, the majori- 
dard strict re- 

bf unobtainable. 

the price for a 
juest for assist- 

ovide a specific 

esired and why 
rt is necessary. 

nfront the pros- 

y requires the 

e nature of the 

the requested 

hallenging that 

s approach for 

hndards the ma- 

avene the flexi- 

Ake and Cald- 

ial elements in 

2, the majority 

breme Court de- 

hich “of these 

jation, is neces- 

at a defendant 

l expert assist- 

2, 105 S.Ct. at 

hus impermissi- 

ctual considera- 

bk, that the Su- 

erve in deciding 

be legitimacy of 

pr decision, the 

bo exacting be- 

endant to pos- 

ce in Ake to sug- 
ant sought would 
xperts. Nor was 
ss would provide 
able from other 
ing state witness- 

necessary for the 
nses. Experts as- 

and interpreting 
s from them, in 
pss-examining the 
ing scientific jar- 

e to the fact find- 
b S.Ct. at 1094-96. 

was clearly more 
admits. 

  

  

MOORE v. KEMP 743 
Cite as 809 F.2d 702 (11th Cir. 1987). 

sess already the knowledge of the expert 
he seeks. The Court in Caldwell required 
no more than that the defendant make a 
threshold showing of reasonableness. 

That standard requires only that the de- 

fendant make something more than “unde- 

veloped assertions that the requested as- 

sistance would be beneficial....” 472 U.S. 
at 324, n. 1, 105 S.Ct. at 2637, n. 1. But 

the majority goes beyond this and requires 

a defendant to make a full-fledged showing 

of an expert opinion that rebuts the state’s 

case. | have grave doubts whether a de- 

fendant can make the sort of particularized 

showing that the majority demands. 

For example, in this case Moore's counsel 

may well have known that in order to con- 

test evidence regarding vaginal swabbings 

from the victim he needed an expert. But 

how could he know if he needed a micro- 

biologist, an organic chemist, a urologist, a 

hematologist, or that which the state used, 

a serologist? How further could he specify 

the type of testing he needed without first 

hiring an expert to make that determina- 

tion? In this case one important question 

is whether Moore’s and Pasby’s semen has 

a high or low “secretion” content. How 

could Moore’s attorney both know of and 

show to the court the existence of, as well 

as the need for, such tests without first 

obtaining the very advice he seeks the 

court provide. This is, I submit, a Catch- 

22 that few will surmount. 

A court should not deny relief summarily 

simply because the defendant cannot speci- 

fy the type of expert he needs. If physical 

evidence constitutes.the bulk of the prose- 

cution’s case, the.need for expert assist- 

ance to confront the prosecution’s evidence 

is manifest. However, the defendant genu- 

~~ inely may not know what type of expert he 

needs to mount an effective challenge. 

The majority would foreclose any inquiry 

3. I note that the majority places upon the de- 
fendant the burden of informing the court 
whether the physical evidence and the related 
expert testimony would play an important role 
in the State's case. This marks a significant 
modification of the Supreme Court's holding in 
Ake, which merely required the defendant to 
demonstrate “to the trial court that his sanity is 
likely to be a significant factor.in his defense 

into the defendant’s need for assistance 

simply because the defendant cannot state 

up front the specific assistance he requires. 

When a defendant asks for assistance and 

the_need for assistance is obvious, it is 

fundamentally unfair for the court to deny 

assistance merely because the defendant 
lacks scientific knowledge. After review- 

ing.the physical evidence the prosecution 

possesses, the court, with its experience in 

criminal cases, may itself be able to deter- 

mine what. -type--of-expert.the defendant 

needs. 

Furthermore, lawyers often lack either 

the time or the ability to learn whole areas 

of forensic science. Experts can acquaint 

defense counsel with the scientific princi- 

ples involved, point out weaknesses in the 

prosecution’s tests, and recommend tests 

that the defense might find useful. The 

majority would preclude a defendant from 

ever receiving such assistance from ap- 

pointed experts. This is not to say that a 

defendant is entitled to an appointed expert 

upon demand whenever the prosecution’s 

case involves physical evidence. However, 

the standard in Ake is sufficiently flexible 

to allow appointed experts to provide such 

preliminary assistance in certain instances. 

The majority-also places on the defefid- 

ant the burden of prescience: of knowing 

(or really guessing) that the state intends 

to use certain testimony in certain ways.? 
Despite the limits of discovery and the 

scope of the work product rule, Moore's 

counsel undoubtedly knew that the state 

had and would present expert interpreta- 

tions of physical evidence. He may even 
have known the gist of the testimony to be 

offered. However, how could any defend- 

ant ever have more than an-inkhng=asto 

how _the prosecution _intended.to use such 

evidence? In this case the prosecutor re- 

...." 470 U.S. at 83, 105 S.Ct. at 1097 (empha- 

sis supplied). Ake is properly read as requiring 
the defendant to show that from his perspective 
a given issue will be critical. Accord Bowden v. 
Kemp, 767 F.2d 761, 764 (11th Cir.1985). The 
majority requires him to offer evidence from 
the perspective of the prosecutor—an infinitely 
more difficult burden.   

  

 



I
 

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——

——
——

——
_ 

  

  
  

A STREETS 

744 809 FEDERAL REPORTER, 2d SERIES 

lied heavily upon it, telling the jury that it 

was “very incriminating.” But a prudent 
prosecutor could only make effective use of 

such flabby testimony if he knew that the 
defendant could not rebut it with his own 
experts, Consequently, the majority’s test 

is circular. The evidence will only play an 

important role if the defendant has no ex- 

pert, and the defendant needs no expert if 
the evidence plays no important role. To 

the extent that this factor is retained at all, 

the burden of proof ought to be placed 

upon the government to show that the in- 

formation at issue is not critical to its case. 

Then that showing ought to be made a 

binding commitment by the government to 

use the evidence only in that fashion. 

I reiterate that the Supreme Court has 

required only that the defendant make a 

bona fide showing of reasonableness. 

That is a showing that the defense could, if 

the request has merit, and ought to make 

in order to justify appointment of assist 

ance. My objection is that the majority’s 

opinion engrafts upon this requirement un- 

necessary and improper burdens that, I 

fear, will almost always prove fatal to the 
defendant’s request. 

B. 

Benjamin Cardozo, with characteristic 

grace, once noted that “a defendant may be 

at an unfair disadvantage[ ] if he is unable 

because of poverty to parry by his own 

witnesses the thrust of those against him.” 

Reilly v. Berry, 250 N.Y. 456, 461, 166 

N.E. 165, 167 (1929) (per Cardozo, C.J.). 

The Supreme Court has noted that which 

any experienced trial judge or lawyer could 

confirm: that * ‘{t]estimony emanating 

from the depth and scope of specialized 

knowledge is very impressive to a jury. 

The same testimony from another source 

can have less effect.’” Ake, 470 U.S. at 

81, n. 7, 105 S.Ct. at 1096 n. 7 (quoting F. 

Bailey & H. Rothblatt, Investigation and 

Preparation of Criminal Cases § 175 
(1970)). A defendant's inability to rebut 

expert testimony, coming before the jury , 

with what is effectively a presumption of 

correctness, is “devastating” to the unas- 

    

sisted defendant’s chances of persuading 

the jury to reject such evidence. 470 U.S. 
at 82-84, 105 S.Ct. at 1097. 

The case against Moore was, to be char) 
table, weak. There Was no direct evidence 

linking him to the crime and he claimed 

that at the time of the murder he was 

passed out on his sofa at home. No one at 

trial offered an eye witness account of any 

episodes in the crime. The prosecution’s 

case was built solely upon a two-part foun- 

dation: the testimony of Pasby as to 

Moore’s supposed admissions to him; and 
the testimony of-several expert witnesses 

as to physical evidence found at the scene 

of the crime and in Moore’s house one 

month later. The jury convicted Moore 

based upon these two elements. 

This Court today finds that Pasby’s testi- 

mony may have been given in exchange for 

lenity in regard to charges pending against 

him—a fact the jury did not know. Upon 

remand it may well be that Pasby’s testi- 

mony will be found incredible, given his 

own likely biases. The physical evidence 

thus assumes an even more critical role in 

the question of Carzell Moore's guilt or 

innocence because half of the foundation 

for the prosecution’s case may well have 

been undermined by constitutional error. 

Under such circumstances, it is not unfair 

to say that in large part the determination 

of Carzell Moore's guilt will hinge upon the 

testimony of state experts that the majori- 

ty would leave him powerless to contradict 

with any degree of effectiveness. 

Ake requires ‘an ex parte threshold 

showing to the trial court” that the matter 

subject to expert testimony is “likely to be 

a significant factor” in the defense. 470 

U.S. at 82, 105 S.Ct. at 1097. By Cald- 

well ’s language, Moore must show that his 

need for expert assistance to interpret 

physical evidence is based upon a developed 

assertion of reasonable necessity. The ma- 
jority would require a description of the 

assistance needed and the type of testing, 

an explanation of the importance of the 

physical evidence to the state’s case, and 
an explanation of how the expert would 

assist Moore in defending himself. Under   
  

 



persuading 
e. 470 US. 

to be chari- 

ect evidence 

he claimed 

der he was 

. No one at 

count of any 
brosecution’s 

o-part foun- 

asby as to 

to him; and 

brt witnesses 

at the scene 

5 house one 

ricted Moore 

Pasby’s testi- 

exchange for 

ding against 

now. Upon 
Pasby’s testi 

le, given his 

ical evidence 

itical role in 

re’s guilt or 

e foundation 

ay well have 

itional error. 

is not unfair 

Hetermination 

ge upon the 

ht the majori- 
to contradict 

ess. 

te threshold 

at the matter 

“likely to be 

Hefense. 470 

By Cald- 

show that his 

to interpret 

n a developed 

bity. The ma- 

iption of the 

pe of testing, 

ance of the 

e's case, and 

expert would 
self. Under 

  

  

MOORE v. KEMP 745 
Cite as 809 F.2d 702 (11th Cir. 1987) 

all three rubrics I believe that Moore made 

an adequate showing of need for and en- 

titlement to state-paid expert assistance. 

At the pre-trial hearing, Moore's attor- 

ney addressed the court orally on the sub- 

ject. 

We would like to make a motion to the 

Court that an independent research 

analysis [sic] be appointed by this Court 

that is not employed by the State of 

Georgia to examine this evidence to find 

his own conclusions on behalf of the de- 

fendant, to reach his own conclusions, in 

order that we can first of all, have some- 

one to advise us as to the expertise of 

the Georgia Crime Lab, whether or not 

they performed the correct tests, wheth- 

er or not there could be any variances in 

the findings of the Georgia Crime Lab, in 

order that we would have this knowledge 

available to us. 

R.Exh. 2-40. This, standing alone, is no 

more than an “undeveloped assertion[] 

that the requested assistance would be ben- 

eficial....” Caldwell, 472 U.S. at 324, n. 

1, 105 S.Ct. at 2637, n. 1. But the defense 

attorney supplemented this oral statement 

with a written request: 

Defendant has been informed that the 

various items of physical evidence tend 

to connect him to a commission of the 

crime for which he is charged, even 

though defendant understands that a 

number of the tests performed by the 

State Crime Lab do not conclusively 

prove the presence of defendant, but 

rather prove the presence of someone 

similar to defendant. 

Neither the defendant nor his counsel 

are [sic] sufficiently knowledgeable to 

determine whether the test and examina- 

tions performed by the State Crime Lab 

on the various pieces of physical evidence 

are complete, conclusive, or exhaustive. 

This, coupled with the oral statement, goes 

to the requirements of Ake, of Caldwell, 

and of the majority’s opinion. It sets forth 

4. Moore's attorney did ask for assistance, in 

part, “in order that the defendant can test the 

validity of and accuracy of any tests which have 

been run by the State and the results of which 

may be introduced into evidence against the de- 

a reasonable need for expert assistance in 

order both to impeach state witness credi- 

bility and credentials and to attack the fac- 

tual conclusions that those witnesses will 

likely draw—in short the probable value of 

such assistance and the risk of error if 

denied. The statement goes on, however: 

Defendant understands that there are 

certain tests which can be run which 

might conclusively prove whether or not 

the hair samples found are those from 

defendant, but neither defendant nor his 

counsel have the necessary funds or ex- 

pertise to perform said tests. 

This bolsters the reasonableness of the re- 

quest and further meets the majority’s re- 

quirement that the defendant specify the 

tests he seeks to have performed. Moore's 

attorney continued: 

Appointed counsel cannot effectively 

prepare the defense for Defendant with- 

out the services of an expert witness to 

advise him concerning the tests and ex- 

aminations run by the law enforcement 

and judicial agencies and no provision 

has been made for the Defendant to have 

available to him the kind of resources 

which are available to the State through 

the State Crime Laboratory in order that 

the Defendant can test the validity of 

and accuracy of any tests which have 

been run by the State and the results of 

which may be introduced into evidence 

against the defendant at trial. 

R.Exh. 1-87. Again, the defendant offered 

evidence of reasonableness and a showing 

sufficient to describe the type of expert 

assistance needed. Moore's attorney even 

went on to offer the trial court the name of 

his proposed expert and the fee for his 

services: $1500. 

Admittedly, Moore’s lawyer did not af- 

firmatively allege that the state would rely 

upon the evidence here at issue. But as 

Moore's counsel noted in his motion for 

fendant at trial..." (emphasis supplied). This 

is at least suggestive that Moore's attorney rec- 

ognized that the physical evidence would be 

important to the state’s case and that he needed 

to be able to respond to it. 

  

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746 

expert assistance, he could not do so be- 

cause: 

[t]here is no statute in the law of Georgia 

giving the Defendant the right to com- 

pulsory legal process which will require 

the State to advise the Defendant of the 

basis on which the State intends to at- 

tempt to prove that the defendant is 

guilty of the crime for which he has been 

indicted. 

R.Exh. 1-88. Thus the majority today im- 

poses a burden on all indigent defendants 

which the law of Georgia makes impossible 

to meet. Moreover, given the lack of any 

eye witness to this crime..and.the.fact.that 

aside from the physical evidence the state's 

only Witness was.a.cellmate with.a criminal 

record of his own, I believe it was so pat- 

ently obvious as to go without saying that 

the physical evidence, and expert interpre- 

tation of that evidence, would be critical, 

even absent an express“guess by the de- 

fendant to that effect. 

The physical evidence in this case was, 

stafiding alone, weak. “As the state’s wit- 

nesses themselves conceded, there were 

major questions as to the validity and accu- 

racy of the tests performed. The majori- 

ty’s recitation of the facts does not mention 

that the Hushpuppy shoe prints found at 

the scene of the crime were not congruent 

in size with those seized from Moore's 

house, yet Moore was unable to counter 

this damaging circumstantial evidence with 

testimony as to whether the soil could have 

5. The expert who examined the semen could 

only show that it came from someone of 

Moore's blood group, a trait he shared with 

forty per cent of the male population. 

6. The microanalyst of the hair samples admitted 

on cross examination that “[a]s to whether or 

not they [the two hairs from the towel] actually 

come from [a particular person] is impossible to 

determine in forensic science.” He further con- 

fessed that his attempts to match a hair sample 

with a particular individual are at best “right 

fifty-one percent of the time and wrong forty- 

nine percent of the time.” 

7. The majority intimates at the end of its discus- 

sion of this issue that any prejudice suffered by 

Moore through failure to appoint an expert to 

assist him was, in effect, harmless given that his 

attorney comprehensively cross-examined the 

809 FEDERAL REPORTER, 2d SERIES 

produced a print longer and wider than the 

shoe. The semen sample could be identi- 

fied as coming from any of the two-fifths 

of the country’s male population sharing 

Moore's blood type.’ The two hairs seized 

from a towel in Moore's bathroom, one 

month after the crime, could likewise only 

be shown to be consistent with those of 

Allen and not inconsistent with those of 

Moore, Green or Pasby. In essence, the 

state’s “expert” could only say with cer- 

tainty that which any layman could also 

have observed: that he viewed a blond 

pubic hair and a Negro head hair. Yet the 

prosecutor was able to characterize this 

evidence as “very incriminating” in large 

part because he was assured that Moore 

could not offer a witness of equal stature 

to question these assertions. It is precisely 

in cases of this sort where failure to pro- 

vide expert assistance to the defendant be- 

comes crucial. When physical evidence is 

itself weak it may well be that the per- 

suasiveness of that evidence derives entire- 

ly from the enhancing effect caused by 

“expert” testimony prodding the jury to- 

ward a particular conclusion.’ 

For all of the reasons foregoing, I be- 

lieve that the majority errs in its disposi- 

tion of this question, both as a theoretical 

matter and as applied within the confines 

of this case. Moore has established a rea- 

sonable need for the assistance of experts 

under Ake, and I would grant him relief. 

state's witnesses and that he did not renew his 

motion at trial. 

It is doubtful whether an adequate defense 

could be had simply by impeaching the witness- 

es and their findings during cross-examination. 

As the Supreme Court noted in Ake, expert testi- 

mony is often of exceptional persuasiveness to a 

jury. Even presentation of a contrary witness 

not billed as an “expert” is less effective. -470 

US. at 81, n. 7, 105 S.Ct. at 1096, n. 7. Of 

course, the average juror would give even less 

credence to the naturally biased observations of 

defense counsel in cross-examining state wit- 

nesses or in making closing arguments. It is 

not enough to say that the defendant has the 

opportunity to respond. Rather, he must be 

assured of “a fair opportunity to present his 

defense.” Id. at 76, 105 S.Ct. at 1093 (emphasis 

added).   
  

 



   



   
84 L Ed 2d 

1880 (1981), 

  

   
nce. The ratio- 
roach requires 
Ses, not just in 

rity favors the 
does not appear 

ke this course. 

    

    
    

    

  

       
[470 US 68] 

GLEN BURTON AKE, Petitioner 
(8) - \ 

OKLAHOMA 

470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

[No. 83-5424] 

Argued November 7, 1984. Decided February 26, 1985. 

Decision: Indigent criminal defendant held entitled to assistance of psychia- 
trist when sanity at time of offense is seriously in question. 

SUMMARY 

An indigent was charged with murdering a couple and wounding their 
two children. At a pretrial conference in an Oklahoma trial court, the 
defense counsel informed the court that the defendant would raise an 
insanity defense, and asked the court to arrange to have a psychiatrist 
perform an examination, or to provide funds to allow the defense to arrange 
one, since no inquiry had been made into the defendant’s sanity at the time 
of the offense. The trial judge denied the motion. At the guilt phase, the sole 
defense was insanity, but there was no expert testimony for either side on 
the issue of the defendant’s sanity at the time of the offense. The jury 
convicted the defendant on all counts. At the capital sentencing phase, the 
defendant had no expert witness to rebut the prosecution’s testimony as to 
his future dangerousness, an aggravating factor, and the jury sentenced him 
to death. The Oklahoma Court of Criminal Appeals affirmed, holding that 
the defendant was not entitled to the services of a court-appointed psychia- 
trist (663 P2d 1). 

On certiorari, the United States Supreme Court reversed and remanded. 
In an opinion by MARSHALL, J., joined by BRENNAN, WHITE, BLACKMUN, 
PowEeLL, STEVENS, and O'CONNOR, JJ., it was held (1) that when a defendant 
in a criminal prosecution makes a preliminary showing that his sanity at 
the time of the offense is likely to be a significant factor at trial the 
Constitution requires that the state provide the defendant access to a 
psychiatrist if the defendant cannot otherwise afford one; (2) that a defen- 
dant is similarly entitled to the assistance of a psychiatrist at a capital 
sentencing proceeding at which the state presents psychiatric evidence of 
the defendant’s future dangerousness; and (3) that under the facts pre- 
sented, the defendant’s sanity was a significant factor at both the guilt and 
sentencing phases and that the denial of psychiatric assistance constituted a 
deprivation of due process. 

Briefs of Counsel, p 891, infra. 

  

    



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U.S. SUPREME COURT REPORTS 
BURGER, Ch. J., concurred in the jud nothing in the ¢ gment, expressing the ourt’s opinion reached noncapital cases, 

  
TOTAL CLIEN T-SERVICE LIBRARY® REFERENCES 21, 21A Am Jur 2d, Criminal Law §§ 71, 79, 771 8, 9 Federal Procedure, L Ed, Criminal Procedure §§ 22:333- 22:336, 22:911 

7 Federal Procedural Forms, L Ed, Criminal Procedure 
§§ 20:521 et seq. 

8 Am Jur Pl & Pr F 
1 et seq. 

8 Am Jur Proof of Facts 
2 Am Jur Trials 

Trials 585, Selec 

orms (Rev), Criminal Procedure, Forms 

USL Ed Digest, Criminal] Law § 53 
L Ed Index to Annos, Criminal La Ww; Incompetent Persons; Physical and Mental Examination; Poor Persons 

Auto-Cite®: Any ¢ 
form, paralle] refi 

» and application of federal statutes Providing for 
termination of men tal Competency of person accused of federal 

crime. 4 L Eq 24 2077. 

er psychiatric examination condition at time of alleged 
offense. 17 ALR4th 1274. 

Right of indig 
ment of investig, 

ent defendant in criminal case to aig of state by appoint- ator or expert. 34 ALR3d 1256.            



84 L Ed 2d 

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470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

HEADNOTES 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

Criminal Law §53 — indigent’s 

right to court-appointed psy- 

chiatrist — at guilt phase 

la-1d. When a defendant in a 

criminal prosecution makes a pre- 

liminary showing that his sanity at 

the time of the offense is likely to be. 

a significant factor at trial, the Con- 

stitution requires that the state pro- 

vide the defendant access to a psy- 

chiatrist on this issue, if the defen- 

dant cannot otherwise afford one. 

(Rehnquist, J., dissented from this 

holding.) 

Appeal §489 — Supreme Court 

review of state court judg- 

ment — independent state 

grounds 

2a, 2b. The United States Supreme 

Court has jurisdiction to review a 

state criminal conviction raising the 

issue of an indigent defendant's fed- 

eral constitutional right to a psychi- 

atrist’s assistance, despite a state 

court ruling that the claim has been 

waived by virtue of the defendant’s 

failure to repeat his request for a 

psychiatrist in his motion for a new 

trial, since the state waiver rule 

does not apply to fundamental trial 

error and since federal constitu- 

tional errors are fundamental errors 

under state law; thus, application of 

the procedural bar is dependent on 

an antecedent ruling on federal law 

and the state court’s judgment con- 

sequently does not rest on an inde- 

pendent state ground. 

Appeal §487 — Supreme Court 

review of state court judg- 

ment — constitutional rulings 

3. When a state court’s resolution 

of a state procedural law question 

depends on a federal constitutional 

. ruling, the state law prong of the 

court’s holding is not independent of 

federal law, and the jurisdiction of 

the United States Supreme Court is 

not precluded; in such a case, the 

federal law holding is integral to the 

state court’s disposition of the mat- 

ter, and thus a ruling on the issue 

by the United States Supreme Court 

is not advisory. 

Criminal Law §53 — indigent’s 

right to court-appointed psy- 

chiatrist 

4. In determining whether, and 

under what conditions, the participa- 

tion of a psychiatrist is important 

enough to the preparation of a de- 

fense to require the state to provide 

an indigent defendant with access to 

competent psychiatric assistance, the 

relevant factors are (a) the private 

interest that will be affected by the 

action of the state; (b) the govern- 

mental interest that will be affected 

if the safeguard is provided; and (c) 

the probable value of the additional 

or substitute procedural safeguards 

that are sought, and the risk of an 

erroneous deprivation of the affected 

interest if those safeguards are not 

provided. 

Criminal Law §53 — indigent’s 

right to court-appointed psy- 

chiatrist — at sentencing 

phase 

5a, 5b. When the issue of a defen- 

dant’s future dangerousness is a sig- 

nificant factor at a capital sentenc- 

55    



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U.S. SUPREME COURT REPORTS 84 L Ed 2d 

ing proceeding and the state pre- 

sents psychiatric evidence on this 

issue, due process requires that the 

state provide the defendant access to 

a psychiatrist, if the defendant can- 

not otherwise afford one. (Rehnquist, 

J., dissented from this holding.) 

Criminal Law §53 — indigent’s 

right to court-appointed psy- 

chiatrist : 

6. The mental state of an indigent 

criminal defendant at the time of 

the offense is a significant factor in 

his defense, so as to entitle him to 

the assistance of a court-appointed 

psychiatrist as a matter of due pro- 

cess, where (a) the defendant’s sole 

defense is that of insanity; (b) his 

behavior at arraignment, just 4 

months after the offense, is so bi- 

zarre as to prompt the trial judge to 

have him examined for competency; 

(c) a state psychiatrist finds him in- 

competent to stand trial; (d) a later 

determination of competency to 

stand trial is conditioned on sedation 

of the defendant with large doses of 

an antipsychotic drug; (e) the psychi- 

atrist conducting the competency ex- 

amination finds that his illness may 

have begun many years earlier; and 

(f) the state recognizes an insanity 

defense under which the initial bur- 

den of producing evidence falls on 

the defendant. (Rehnquist, J., dis- 

sented from this holding.) 

SYLLABUS BY REPORTER OF DECISIONS 

Petitioner, an indigent, was 

charged with first-degree murder 

and shooting with intent to kill. At 

his arraignment in an Oklahoma 

trial court, his behavior was so bi- 

zarre that the trial judge, sua 

sponte, ordered him to be examined 

by a psychiatrist. Shortly thereafter, 

the examining psychiatrist found pe- 

titioner to be incompetent to stand 

trial and suggested that he be com- 

mitted. But six weeks later, after 

being committed to the state mental 

hospital, petitioner was found to be 

competent on the condition that he 

continue to be sedated within an 

antipsychotic drug. The State then 

resumed proceedings, and at a pre- 

trial conference petitioner’s attorney 

informed the court that he would 

raise an insanity defense, and re- 

quested a psychiatric evaluation at 

state expense to determine petition- 

er’s mental state at the time of the 

offense, claiming that he was enti- 

56 

tled to such an evaluation by the 

Federal Constitution. On the basis of 

United States ex rel Smith v Baldi, 

344 US 561, 97 L Ed 549, 73 S Ct 

391, the trial court denied petition- 

er’s motion for such an evaluation. 

At the guilt phase of the ensuing 

trial, the examining psychiatrists 

testified that petitioner was danger- 

ous to society, but there was no 

testimony as to his sanity at the 

time of the offense. The jury rejected 

the insanity defense, and petitioner 

was convicted on all counts. At the 

sentencing proceeding, the State 

asked for the death penalty on the 

murder counts, relying on the exam- 

ining psychiatrists’ testimony to es- 

tablish the likelihood of petitioner’s 

future dangerous behavior. Peti- 

tioner had no expert witness to re- 

but this testimony or to give evi- 

dence in mitigation of his punish- 

ment, and he was sentenced to 

death. The Oklahoma Court of Crim-   

  

 



84 L Ed 2d 

tnt, just 4 

e, is so bi- 

rial judge to 

competency; 

Inds him in- 

; (d) a later 

petency to 

on sedation 

irge doses of 

) the psychi- 
petency ex- 

i illness may 

earlier; and 

an insanity 
> initial bur- 

nce falls on 
ist, J., dis- 

J 

htion by the 

the basis of 
nith v Baldi, 

549, 73 S Ct 

hied petition- 
evaluation. 

the ensuing 
psychiatrists 
was danger- 

here was no 
anity at the 
jury rejected 
nd petitioner 
bunts. At the 
, the State 
nalty on the 

on the exam- 
imony to es- 

bf petitioner’s 

havior. Peti- 
itness to re- 
to give evi- 

f his punish- 

sentenced to 
ourt of Crim-   

~ AKE v OKLAHOMA 
470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

inal Appeals affirmed the convictions 

and sentences. After rejecting, on 

the merits, petitioner’s federal con- 

stitutional claim that, as an indigent 

defendant, he should have been pro- 

vided the services of a court-ap- 

pointed psychiatrist, the court ruled 

that petitioner had waived such 

claim by not repeating his request 

for a psychiatrist in his motion for a 

new trial. 
Held: 
1. This Court has jurisdiction to 

review this case. The Oklahoma 

Court of Criminal Appeals’ holding 

that the federal constitutional claim 

to a court-appointed psychiatrist was 

waived depended on the court’s fed- 

eral-law ruling and consequently 

does not present an independent 

state ground for its decision. 

2. When a defendant has made a 

preliminary showing that his sanity 

at the time of the offense is likely to 

be a significant factor at trial, the 

Constitution requires that a State 

provide access to a psychiatrists as- 

sistance on this issue, if the defen- 

dant cannot otherwise afford one. 

(a) In determining whether, and 

under what conditions, a psychia- 

trist’s participation is important 

enough to preparation of a defense 

to require the State to provide an 

indigent defendant with access to a 

psychiatrist, there are three relevant 

factors: (i) the private interest that 

will be affected by the State’s ac- 

tions; (ii) the State’s interest that 

will be affected if the safeguard is to 

be provided; and (iii) the probable 

value of the additional or substitute 

safeguards that are sought and the 

risk of an erroneous deprivation of 

the affected interest if those safe- 

guards are not provided. The private 

interest in the accuracy of a crimi- 

nal proceeding is almost uniquely 

compelling. The State’s interest in 

* 

denying petitioner a psychiatrist’s 

assistance is not substantial in light 

of the compelling interest of both 

the State and petitioner in accurate 

disposition. And without a psychia- 

trist’s assistance to conduct a profes- 

sional examination on issues rele- 

vant to the insanity defense, to help 

determine whether that defense is 

viable, to present testimony, and to 

assist in preparing the cross-exami- 

nation of the State’s psychiatric wit- 

nesses, the risk of an inaccurate 

resolution of sanity issues is ex- 

tremely high. This is so particularly 

when the defendant is able to make 

an ex parte threshold showing that 

his sanity is likely to be a significant 

factor in his defense. 

(b) When the State at a capital 

sentencing proceeding presents psy- 

chiatric evidence of the defendant’s 

future dangerousness, the defendant, 

without a psychiatrist’s assistance, 

cannot offer an expert's opposing 

view, and thereby loses a significant 

opportunity to raise in the jurors’ 

minds questions about the State’s 

proof of an aggravating factor. In 

such a circumstance, where the con- 

sequence of error is so great, the 

relevance of responsive psychiatric 

testimony so evident, and the State’s 

burden so slim, due process requires 

access to a psychiatric examination 

on relevant issues, to a psychiatrist's 

testimony, and to assistance in prep- 

aration at the sentencing phase. 

(¢c) United States ex rel Smith v 

Baldi, supra, is not authority for 

absolving the trial court of its obli- 

gation to provide petitioner access to 

a psychiatrist. 

3. On the record, petitioner was 

entitled to access to a psychiatrists 

assistance at his trial, it being clear 

that his mental state at the time of 

the offense was a substantial factor 

57      



U.S. SUPREME COURT REPORTS 84 L Ed 2d 

in his defense, and that the trial 
court was on notice of that fact 
when the request for a court-ap- 
pointed psychiatrist was made. In 
addition, petitioner’s future danger- 
ousness was a significant factor at 
the sentencing phase, so as to entitle 
him to a psychiatrist’s assistance on 
this issue, and the denial of that 
assistance deprived him of due pro- 
cess. 

663 P2d 1, reversed and re- 
manded. 

Marshall, J., delivered the opinion 
of the Court, in which Brennan, 
White, Blackmun, Powell, Stevens, 
and O’Connor, JJ., joined. Burger, C. 
J., filed an opinion concurring in the 
judgment. Rehnquist, J., filed a dis- 
senting opinion. 

APPEARANCES OF COUNSEL 

Arthur B. Spitzer argued the cause for petitioner. 
Michael C. Turpen argued the cause for respondent. 
Briefs of Counsel, p 891, infra. 

OPINION OF THE COURT 
Justice Marshall delivered the 

opinion of the Court. 

[1a] The issue in this case is 
/Whether the Constitution requires 

( that an indigent defendant have ac- 
| cess to the psychiatric examination 
| and assistance necessary to prepare 
} an effective defense based on his 
| mental condition, when his sanity at 
| the time of the offense is seriously in 
\ question. 

I 

Late in 1979, Glen Burton Ake 
was arrested and charged with mur- 
dering a couple and wounding their 
two children. He was arraigned in 
the District Court for Canadian 
County, 

[470 US 71] 

Okla., in February 1980. His 
behavior at arraignment, and in 
other prearraignment incidents at 
the jail, was so bizarre that the trial 
judge, sua sponte, ordered him fo be 
examined by a psychiatrist “for the 
purpose of advising with the Court 
as to his impressions of whether the 
Defendant may need an extended 
period of mental observation.” App 
2. The examining psychiatrist. re- 
ported: "At times TAke] appears to 
58 

* 

be frankly delusional. . . . He claims 
‘to be the ‘sword of vengeance’ of the 
Lord and that he will sit at the left 
hand of God in heaven.” Id., at 8. He 

  

| diagnosed Ake as a probable para- 
\noid schizophrenic and recom- 
mended a prolonged psychiatric 
evaluation to determine whether 
Ake was competent to stand trial. 

/ In March, Ake was committed to a 
‘state hospital to be examined with 
respect to his “present sanity,” ie. 
his competency to stand trial. On 
April 10, less than six months after 
The incidents for which Ake was 
indicted, the chief forensic psychia- trist at the state hospital informed 
the court that Ake was not compe- 
{ST to Stand trIal—The Court then eld a competency hearing, at which 
a psychiatrist testified: 

“[Ake] is a psychotic . . . his psy- 
chiatfic diagnosis was that of par- 
anoid schizophrenia—chronic, 
with exacerbation, that is with 
current upset, and that in addition 

. . he is dangerous. ... [Ble 
cause of the severity of his mental 
illness and because of the intensi- 
ties of his rage, his poor control, 
his delusions, he requires a maxi- 
mum security facility within—I   

  

 



84 L Ed 2d 

sed and re- 

»d the opinion 
ich Brennan, 
well, Stevens, 
ed. Burger, C. 
curring in the 
J., filed a dis- 

. . . He claims 
ageance’ of the 
sit at the left 
>’ 1d., at 8. He 
probable para- 
and recom- 

bd psychiatric 
mine whether 

h stand trial. 

committed to a 
examined with 
nt sanity,” ie. 
tand trial. On 

¢ months after 
thich Ake was 
brensic psychia- 
spital informed 
as not compe- 

e court then 
aring, at which 

1. 

ic . . . his psy- 
was that of par- 
enia—chronic, 
that is with 

that in addition 
rous. ... [Ble 
ty of his mental 
e of the intensi- 
is poor control, 
Fequires a maxi- 
cility within—I 

  

  

  

  

AKE v OKLAHOMA 
470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

believe—the State Psychiatric 

Hospital system.” 1d, at 11-12. 

The court found Ake to be a “men- 

tally ill person in need of care and 

treatment” and incompetent to 

stand trial, and ordered him commit- 

ted to the state mental hospital. 

Six weeks later, the chief forensic 

psychiatrist informed the court that 

Ake had become competent to stand 

Trial At the time, Ake was receiving 

200 milligrams of Thorazine, an an- 

tipsychotic drug, three times daily, 

and the psychiatrist indicated that, 

age, his 
[470 US 72] 

condition would remain sta 

ble. The State then resumed pro- 

ceedings against Ake. 

At a pretrial conference in June, | 

Ake’s attorney Informed the court 

{Rat Tis client would raise an Insan- 

lity_defensef To enable him to pre- 

pare and present such a defense ade- 

| quately, the attorney stated, a psy- 

| chiatrist would have to examine Ake | 

| with respect to his mental condition /; 

\_at the time of the offense During | 

Akos I month stay at the state hos- 

pital, no inquiry had been made into 

his sanity at the time of the offense, | 

! offense. They and, as an indigent, Ake could not 

afford to pay for a psychiatrist. 

/ Counsel asked the court either to | 

| arrange to have a psychiatrist _per- | 

! form the examination, or to provide | 
. 

| finds to allow the defense to ar: 

| range one.|The trial judge rejected 

\—commeets-drgument that the Federal 

Constitution requires that an indi- 

gent defendant receive the assis 

tance of a psychiatrist when that 

assistance is necessary to the de- 

fense, and he denied the motion for 

a psychiatric evaluation at state ex- 

pense on the basis of this Court’s 

decision in United States ex rel. 

Smith v Baldi, 344 US 561, 97 L Ed 

549, 73 S Ct 391 (1953). 

Ake was tried for two counts of 

murder in the first degree, a crime 

punishable by death in Oklahoma, 

and for two counts of shooting with 

intent to kill. At the guilt phase of 

trial, his sole defense was insanity. 
  

Although defense counsel called tQ 

| the stand and questioned each of the 

if Ake continued to receive that dos- | psychiatrists who had examined Ake 

[470 US 73] 

were further told that 

| Ake was to be presumed sane at the 

time of the crime unless he_pre- 

sented evidence sufficient to raise.a 

reasonable doubt about his sanity at 

{hat time. IT he raised such a doubt 

in their minds, the jurors were in- 

formed, the burden of proof shifted 

to the State to prove sanity beyond a 

reasonable doubt.! The jury rejected 

  

1. Oklahoma Stat, Tit 21, § 152 (1981), pro- 

vides that “[a]ll persons are capable of com- 

mitting crimes, except those belonging to the 

following classes . . . (4) Lunatics, insane per- 

sons and all persons of unsound mind, includ- 

* 

ing persons temporarily or partially deprived 

of reason, upon proof that at the time of 

committing the act charged against them they 

were incapable of knowing its wrongfulness.” 

The Oklahoma Court of Criminal Appeals has 

59   

  

   



U.S. SUPREME COURT REPORTS 

Ake’s insanity defense and returned 

a verdict of guilty on all counts. 

At the sentencing proceeding, the 

State asked for the death penalty. 

No new evidence was presented. The 

prosecutor relied significantly on the 

testimony of the state psychiatrists 

who had examined Ake, and Who 

had testified at the.guilt.phase that 

Kke was dangerous to society, to 

&fablish the likelihood of his future 

dangerous behavior. Ake had no ex: 

pert witness to rebut this testimony 

or to introduce on his behalf evi- 

dence in mitigation of his punish- 

ment. The jury sentenced Ake to 

death on each of the two murder 

counts, and to 500 years’ imprison- 

ment on each of the two counts of 

shooting with intent to kill. 

On appeal to the Oklahoma Court 

of Criminal Appeals, Ake argued 
that, as an indigent defendant, he 

should have been provided the ser- 

vices of a court-appointed psychia- 

trist. The court rejected this argu- 

ment, observing: “We have held nu- 

merous times that, the unique na- 

ture of capital cases notwithstand- 

ing, the State does not have the 

responsibility of 
[470 US 74] 

providing such ser 

vices to indigents charged with capi- 

tal crimes.” 663 P2d 1, 6 (1983). 

Finding no error in Ake’s other 

claims? the court affirmed the con- 

victions and sentences. We granted 

84 L Ed 2d 

certiorari. 465 US 1099, 80 L Ed 2d 

123, 104 S Ct 1591 (1984). 

[1b] We hold that when a defen- \ 

dant has made a preliminary show- | 

ing that his sanity at the time of the 

offense is likely to be a significant 

factor af trial, the Constitution re- 

quires that a State provide access to 

a psychiatrist’s assistance on this 

| issue, if the defendant cannot other- 

wise afford one. Accordingly, we re- 

lverse. 

II 

[2a] Initially, we must address our 

jurisdiction to review this case. After 

ruling on the merits of Ake’s claim, 

the Oklahoma court observed that in 

his motion for a new trial Ake had 

not repeated his request for a psy- 

chiatrist and that the claim was 

thereby waived. 663 P2d, at 6. The 

court cited Hawkins v State, 569 P2d 

490 (Okla Crim App 1977), for this 

proposition. The State argued in its 

brief to this Court that the court’s 

holding on this issue therefore 

rested on an adequate and indepen- 

dent state ground and ought not be 

reviewed. Despite the court’s state- 

law ruling, we conclude that the 

state court’s judgment does not rest 

on an independent state ground and 

that our jurisdiction is therefore 

properly exercised. 

The Oklahoma waiver rule does 

  

held that there is an initial presumption of 

sanity in every case, “which remains until the 

defendant raises, by sufficient evidence, a rea- 

sonable doubt as to his sanity at the time of 

the crime. If the issue is so raised, the burden 

of proving the defendant’s sanity beyond a 

reasonable doubt falls upon the State.” 663 

P2d 1, 10 (1983); see also Rogers v State, 634 

P2d 743 (Okla Crim App 1981). 

2. The Oklahoma Court of Criminal Ap- 

peals also dismissed Ake’s claim that the 

Thorazine he was given during trial rendered 

60 

him unable to understand the proceedings 

against him or to assist counsel with his 

defense. The court acknowledged that Ake 

“stared vacantly ahead throughout the trial” 

but rejected Ake’s challenge in reliance on a 

state psychiatrist’s word that Ake was compe- 

tent to stand trial while under the influence 

of the drug. 663 P2d, at 7-8, and n 5. Ake 

petitioned for a writ of certiorari on this issue 

as well. In light of our disposition of the other 

issues presented, we need not address this 

claim.  



A
 
S
h
 

a
e
 

ia
 

J 
g
i
 

fut
 
a
N
 

RE
S 

84 L Ed 2d 

h, 80 L Ed 2d 
4). 

hen a defen- 

minary show- 
he time of the 

a significant 
ynstitution re- 

wide access to 

ance on this 

cannot other- 

dingly, we re- 

hist address our 

his case. After 
of Ake’s claim, 

hserved that in 

trial Ake had 

est for a psy- 
he claim was 

P2d, at 6. The 

State, 569 P2d 
1977), for this 

o argued in its 
hat the court’s 
ksue therefore 

e and indepen- 
d ought not be 
e court’s state- 

rlude that the 

t does not rest 

ate ground and 
n is therefore 

iver rule does 
  

nd the proceedings 
t counsel with his 
owledged that Ake 
hroughout the trial” 
1ge in reliance on a 
hat Ake was compe- 
under the influence 
7-8, and n 5. Ake 

rtiorari on this issue 
kposition of the other 
od not address this 

*   

AKE v OKLAHOMA 
470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

not apply to fundamental trial error. 

See Hawkins v State, supra, at 493; 

Gaddis 
[470 US 75] 

v State, 447 P2d 42, 45-45 

(Okla Crim App 1968). Under Okla- 

homa law, and as the State conceded 

at oral argument, federal constitu- 

fional errors are “fundamental.” Tr 

of Oral Arg 51-52; see Buchanan v 

State, 523 P2d 1134, 1137 (Okla 

Crim App 1974) (violation of consti- 

tutional right constitutes fundamen- 

tal error); see also Williams v State, 

658 P2d 499 (Okla Crim App 1983). 

Thus, the State has made applica- 

tion of the procedural bar depend on 

an antecedent ruling on federal law, 

that is, on the determination of 

whether federal constitutional error 

has been committed. Before applying 

the waiver doctrine to a constitu- 

tional question, the state court must 

rule, either explicitly or implicitly, 

on the merits of the constitutional 
question. 

[2b, 3] As we have indicated in the 
past, when resolution of the state 
procedural law question depends on 
a federal constitutional ruling, the 
state-law prong of the court’s hold- 
ing is not independent of federal 
law, and our jurisdiction is not pre- 
cluded. See Herb v Pitcairn, 324 US 
117, 126, 89 L Ed 789, 65 S Ct 459 
(1945) (“We are not permitted to 
render an advisory opinion, and if 
the same judgment would be ren- 
dered by the state court after we 
corrected its views of Federal laws, 
our review could amount to nothing 
more than an advisory opinion”); 
Enterprise Irrigation District v 
Farmers Mutual Canal Co. 243 US 
157, 164, 61 L Ed 644, 37 S Ct 318 
(1917) (“But where the non-Federal 
ground is so interwoven with the 
other as not to be an independent 
matter, or is not of sufficient breadth 
to sustain the judgment without any 

decision of the other, our jurisdiction 

is plain”). In such a case, the fed- 

eral-law holding is integral to the 

state court’s disposition of the mat- 

ter, and our ruling on the issue is in 

no respect advisory. In this case, the 

additional holding of the state court 

—that the constitutional challenge 

presented here was waived—depends 

on the court’s federal law ruling and 

consequently does not present an 

independent state ground for the 

decision rendered. We therefore turn 

to a consideration of the merits of 

Ake’s claim. 

[470 US 76] 
III 

This Court has long recognized 

that when a State brings its judicial 

power to bear on an indigent defen- 
dant in a criminal proceeding, it 

must take steps to assure that the 

defendant has a fair opportunity to 

present his defense. This elementary 
principle, grounded in significant 

part on the Fourteenth Amend- 

ment’s due process guarantee of fun- 

damental fairness, derives from the 

belief that justice cannot be equal 

where, simply as a result of his pov- 
erty, a defendant is denied the op- 
      

"portunity to participate meaning- 
  

fully "in a judicial proceeding in” 

which his liberty is at stake. In rec- 
ognition of this right, this Court held 

almost 30 years ago that once a 

State offers to criminal defendants 

the opportunity to appeal their 

cases, it must provide a trial tran- 

script to an indigent defendant if the 

transcript is necessary to a decision 

on the merits of the appeal. Griffin v 

Illinois, 351 US 12, 100 L Ed 891, 76 

S Ct 585, 55 ALR2d 1055 (1956). 

Since then, this Court has held that 

an indigent defendant may not be 

required to pay a fee before filing a 

notice of appeal of his conviction, 

Burns v Ohio, 360 US 252, 3 L Ed 2d 

61 

  

  

  

 



% 
Es 

PE 

| 
b 
‘ 
i 

E > 

| 

E 

U.S. SUPREME COURT REPORTS 84 L Ed 2d 

1209, 79 S Ct 1164, 10 Ohio Ops 2d 

404, 84 Ohio L Abs 570 (1959), that 

an indigent defendant is entitled to 

the assistance of counsel at trial, 

Gideon v Wainwright, 372 US 335, 9 

L Ed 2d 799, 83 S Ct 792, 23 Ohio 

Ops 2d 258, 93 ALR2d 733 (1963), 

and on his first direct appeal as of 

right, Douglas v California, 372 US 

353, 9 L Ed 2d 811, 83 S Ct 814 

(1963), and that such assistance 

must be effective. See Evitts v Lucey, | 

469 US 387, 83 L Ed 2d 821, 105 S 

Ct 830 (1985); Strickland v Washing- 

ton, 466 US 668, 80 L Ed 2d 674, 104 

S Ct 2052 (1984); McMann v Rich- 

ardson, 397 US 759, 771, n 14, 25 L 

Ed 2d 763, 90 S Ct 1441 (1970).3 

Indeed, in Little v Streater, 4562 US 

1, 68 L Ed 2d 627, 101 S Ct 2202 

(1981), we extended this principle of 

meaningful participation to a “quasi- 

criminal” proceeding and held that, 

in a paternity action, the State can- 

not deny the putative father blood 

grouping tests, if he cannot other- 

wise afford them. 

[470 US 77] 

Meaningful access. to. justice has 

been the consistent theme of these 
cases. We recognized long ago that 

mere access to the courthouse doors 

does not by itself assure a proper 

functioning of the adversary process, 

and that a criminal trial is funda- 

mentally unfair if the State proceeds 

against an indigent defendant with- 

out making certain that he has ac- 

cess to the raw materials integral to 

the building of an effective defense. 

Thus, while the Court has not held 

that a State must purchase for the 

indigent defendant all the assistance 

that his wealthier counterpart might 

  

  

\for them. i 

buy, see Ross v Moffitt, 417 US 600, 

41 L Ed 2d 341, 94 S Ct 2437 (1974), 

it has often reaffirmed that funda- 

mental fairness entitles indigent de- 

fendants to “an adequate opportu- 

nity to present their claims fairly 
within the adversary system, id., at 

612, 41 L Ed 2d 341, 94 S Ct 2437. 

To implement this Principle. we 
ig 

have focused on identifying{ the “ba-\ 045 le 

  

  

  

  

(sic tools of an adeqlate defense or—} Pl 

appeal,” Britt v No arolina, 

| US 226, 227, 30 L Ed 2d 400, 92 S Ct 

1431 (1971), and we have required 

I that such tools be provided to those 

defendants who cannot afford to pay J; er fe 

[4] To say that these basic tools 

must be provided is, of course, 

merely to begin our inquiry. In this 

case we must. decide whether, and WiAlir a4 
under what conditions, the participa- {ge 

tion of a_psychiatrist is importapt pus 
enough to preparation of a defense Gar ? 

to require the State to provide an 

indigent defendant with access to 

competent psychiatric assistance in 

preparing.the defense Three factors \ 
fare relevant to this determination. || 

IThe fir§t is the private interest that 

fwill be affected by the action of the 

|State. The second is the governmen- 

tal interest that will be affected if 
the safeguard is to be provided. The 

third is the probable value of the 

additional or substitute procedural 

safeguards that are sought, and the 

risk of an_ erroneous deprivalion of 

the affected interest if those safe- 

guards are not provided. See Little v 

Streater, supra, at 6, 68 L Ed 2d 627, 

101 S Ct 2202; Mathews v Eldridge, 

424 US 319, 335,47 L Ed 2d 18,96 S 

Ct 893 (1976). We turn, then, to 

ak, | 

  

  

  

8. This Court has recently discussed the 

role that due process has played in such 

cases, and the separate but related inquiries 

that due process and equal protection must 

62 

trigger. See Evitts v Lucey; Bearden v Geor- 

gia, 461 US 660, 76 L Ed 2d 221, 103 S Ct 

2064 (1983).    



   
   

  

84 L Ed 2d 
  

  

417 US 600, 
, 2437 (1974), 
that funda- 

t indigent de- 
late opportu- 
claims fairly 
stem,” id., at 
b4 S Ct 2437. 
principle, we 
ying the “ba- 
te defense or 

Carolina, 404 

d 400, 92 S Ct 
ave required 
sided to those 
. afford to pay 

   
   

    

   

    

   

  

   

  

   
   

      

   

  

    

se basic tools 

s, of course, 

1quiry. In this 
whether, and 

, the participa- 

is important 

of a defense 

to provide an 
with access to 

assistance in 

. Three factors 

determination. 

e interest that 

e action of the 

the governmen- 

| be affected if 

e provided. The 

e value of the 

ute procedural 
sought, and the 

L deprivation of 

if those safe- 

ed. See Little v 

68 L Ed 2d 627, 

ews v Eldridge, 
L.Ed 2d 18,96 S 

turn, then, to 

                    

   

  

  

        

   

          

     

        

  

      

    oy; Bearden v Geor- 

'd 2d 221, 103 S Ct 

    

  

    

  

  

        

AKE v OKLAHOMA 
470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

apply this standard to the issue be- 

fore us. 

[470 US 78] 
A 

The private interest.in. the accu- 

racy of a criminal proceeding. that 
places an. individual's life or liber 

at_gisk. is.almost uniquely compel- 

ling. Indeed, the host o safeguards 

Tashioned by this Court over the 

years to diminish the risk of errone- 

ous conviction stands as a testament 

to that concern. The interest of the 

individual in the outcome of the 

State’s effort to overcome the pre- 

sumption of innocence is obvious 

and weighs heavily in our analysis. 

  

We consider, next, the interest of 

the State. Oklahoma asserts that to 

provide Ake with psychiatric assis- 

tance on the record before us would 

result in a staggering burden to the 

State. Brief for Respondent 46-47. 

We are unpersuaded by this asser- 

tion. Many States, as well as the 

Federal Government, currently 

make psychiatric assistance avail- 
  

able to indigent defendants, and 

they have not found the financial 

burden so great as to preclude this 

assistance. This is 
[470 US 79] 

especially so 

when the obligation of the State is 

limited to provision of one compe- 

tent psychiatrist, as it is in many 

States, and as we limit the right we 

recognize today. At the same time, it 

is difficult to identify any interest.of 

the State, other than that in its 

economy, that weighs against recog- 

nition of this right. The State’s._in- 
i ili trial—unlike 

that of a private litigant—is neces- 

sarily tempered by its interest in the 

fair __and.accurate—adjudication of 

criminal cases. Thus, also unlike a 

private litigant, a State _may. not 

legitimately assert an interest in 

maintenance of a strategic advan- 

tage over the defense, if the result of 

that advantage is to cast a pall on 
¢ ; rn 

We therefore conclude that the gov- 

ernmental interest in denying Ake 

the assistance of a psychiatrist is not 

  

      

  

4. See Ala Code §15-12-21 (Supp 1984); 

Alaska Stat Ann § 18.85.100 (1981); Ariz Rev 

Stat Ann § 13-4013 (1978) (capital cases; ex- 

tended to noncapital cases in State v Peeler, 

126 Ariz 254, 614 P2d 335 (App 1980); Ark 

Stat Ann § 17-456 (Supp 1983); Cal Penal 

Code Ann §987.9 (West Supp 1984) (capital 

cases; right recognized in all cases in People v 

Worthy, 109 Cal App 3d 514, 167 Cal Rptr 

402 (1980); Colo Rev Stat §18-1-403 (Supp 

1984); State v Clemons, 168 Conn 395, 363 

A2d 33 (1975); Del Code Ann, Tit 29, § 4603 

(1983); Fla Rule Crim Proc 3.216; Haw Rev 

Stat §802-7 (Supp 1983); State v Olin, 103 

Idaho 391, 648 P2d 203 (1982); People v Wat- 

son, 36 Ill 2d 228, 221 NE2d 645 (1966); Owen 

v State, 272 Ind 122, 396 NE2d 376 (1979) 

(trial judge may authorize or appoint experts 

where necessary); Iowa Rule Crim Proc 19; 

Kan Stat Ann § 22-4508 (Supp 1983); Ky Rev 

Stat §§ 31.070, 31.110, 31.185 (1980); State v 

Madison, 345 So 2d 485 (La 1977); State v 

Anaya, 456 A2d 1255 (Me 1983); Mass Gen 

Laws Ann, ch 261, § 27C(4) (West Supp 1984 

1985); Mich Comp Laws Ann § 768.20a(3) 

(Supp 1983); Minn Stat §611.21 (1982); Miss 

Code Ann § 99-15-17 (Supp 1983); Mo Rev Stat 

§ 552.030.4 (Supp 1984); Mont Code Ann § 46- 

8-201 (1983); State v Suggett, 200 Neb 693, 

264 NW2d 876 (1978) (discretion to appoint 

psychiatrist rests with trial court); Nev Rev 

Stat § 7.135 (1983); N H Rev Stat Ann § 604- 

A:6 (Supp 1983); N M Stat Ann §§ 31-16-2, 31- 

16-8 (1984); N Y County Law § 722 (McKin- 

ney Supp 1984-1985); N C Gen Stat § 7TA-454 

(1981); Ohio Rev Code Ann § 2041.51 (Supp 

1983); Ore Rev Stat § 135.055(4) (1983); Com- 

monwealth v Gelormo, — Pa Super —, 

—, and n 5, 475 A2d 765, 769, and n 5 

(1984); R I Gen Laws § 9-17-19 (Supp 1984); S 

C Code §17-3-80 (Supp 1983); S D Codified 

Laws § 23A-40-8 (Supp 1984); Tenn Code Ann 

§ 40-14-207 (Supp 1984); Tex Code Crim Proc 

Ann, Art § 26.05 (Vernon Supp 1984); Utah 

Code Ann §77-32-1 (1982); Wash Rev Code 

88 10.77.020, 10.77.060 (1983) (see also State v 

Cunningham, 18 Wash App 517, 569 P2d 1211 

1977); W Va Code § 29-21-14(eX3) (Supp 

1984); Wyo Stat §§7-1-108; 7-1-110; 7-1-116 

1977). 

63 

  

  

        

      

   



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U.S. SUPREME COURT REPORTS 84 L Ed 2d 

substantial, in light of the compel- 
ling interest of both the State and 
the individual in accurate disposi- 
tions. 

Last, we inquire into fhe probable 
value.of the psychiatric assistance 
sought, and the risk of error in the 
proceeding if such assistance is not 
offered. We begin by considering the 
pivotal role that psychiatry has 
tome to_play. in criminal proceed- 
ings. More than 40 States, as well as 
the Federal Government, have de- 
cided either through legislation or 
judicial decision that indigent defen- 
dants are entitled, under certain cir- 
cumstances, to the assistance of a 
psychiatrist’s expertise.® For exam- 
ple, in subsection (e) of the Criminal 
Justice Act, 18 USC §3006A [18 
USCS § 3006A], Congress has pro- 
vided that indigent 

[470 US 80] 

defendants shall 
receive the assistance of all experts 
“necessary for an adequate defense.” 

Numerous state statutes guarantee 
reimbursement for expert services 
under a like standard. And in many 
States that have not assured access 
to psychiatrists through the legisla- 
tive process, state courts have inter- 
preted the State or Federal Constitu- 
tion to require that psychiatric assis- 
tance be provided to indigent defen- 
dants when necessary for an ade- 
quate defense, or when insanity is at 
issue.® 

These statutes and court decisions 
reflect a reality that we recognize 
today, namely, that when the State 
has made the defendant’s mental 
condition relevant to his criminal 
culpability and to the punishment 
he might suffer, the assistance of a 
psychiatrist may™Well be crucial “to 
thre ~geferrdamt’s ability to “marshal 

his defense. In this role, psychia- 
trists gather facts, both through pro- 
fessional examination, interviews, 
and elsewhere, that they will share 
with the judge or jury; they analyze 
the information gathered and from 
it draw plausible conclusions about 
the defendant’s mental condition, 
and about the effects of any disorder 
on behavior; and they offer opinions 
about how the defendant’s mental 
condition might have affected his 
behavior at the time in question. 
They know the probative questions 
to ask of the opposing party’s psychi- 
atrists and how to interpret their 
answers. Unlike lay witnesses, who 
can merely describe symptoms they 
believe might be relevant to the de- 
fendant’s mental state, psychiatrists 
can identify the “elusive and often 
deceptive” symptoms of insanity, So- 
lesbee v Balkcom, 339 US 9, 12,94 L 
Ed 604, 70 S Ct 457 (1950), and tell 
the jury why their observations are 
relevant. Further, where permitted 
by evidentiary rules, psychiatrists 
can translate a medical diagnosis 
into language that will assist the 
trier of fact, and therefore offer evi- 
dence in a form that has meaning 
for the task at hand. Through this 
process of investigation, interpreta- 
tion and testimony, psychiatrists 

[470 US 81] 

ide- 

ally assist lay jurors, who generally 
have no training in psychiatric mat- 
ters, to make a sensible and edu- 
cated determination about the men- 
tal condition of the defendant at the 
time of the offense. 

Psychiatry is however, an ex- 
aft Ee and psychiatrists di 
aBrEE"Widely and frequently on what 
constitutes Ae illness, on the 
appropriate diagnosis to be attached 
to given behavior and symptoms, on 

  

5. See n 4, supra. 

Lhd 

6. Ibid. 

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84 L Ed 2d 

le, psychia- 
hrough pro- 
interviews, 
will share 

hey analyze 
and from 

sions about 
condition, 

any disorder 
er opinions 

nt’s mental 
affected his 
in question. 

e questions 
hirty’s psychi- 
erpret their 
tnesses, who 
nptoms they 

t to the de- 
psychiatrists 
e and often 
insanity, So- 
S9,12,94L 

p50), and tell 
ervations are 
re permitted 
psychiatrists 

cal diagnosis 
11 assist the 
fore offer evi- 
has meaning 
Through this 
n, interpreta- 
chiatrists 

ide- 

ho generally 
ychiatric mat- 
ible and edu- 

bout the men- 

fendant at the 

owever, an ex- 
chiatrists dis- 

ently on what 
llness, on the 

to be attached 
| symptoms, on 
  

  
    

AKE v OKLAHOMA 
470 US 68, 84 L Ed 2d 53, 105 S Ct 1087 

cure and treatment, and on likeli- 

hood of future dangerousness. Per- 

haps because there often is no sin- 

gle, accurate psychiatric conclusion 

on legal insanity in a given case, 

juries remain the primary factfind- 

ers on this issue, and they must 

resolve differences in opinion within 

the psychiatric profession on the ba- 

sis of the evidence offered by each 

party. When jurors make this deter . 

mination a i inevita- jon_about._issues_that _inevita 

bly are complex and forei the 

testiniony of OE be 

crucial and “a virtual necessity if an 

insanity plea is to have any chance 

of success.”” By organizing a defen- 

dant’s mental history, examination 

results and behavior, and other in- 

formation, interpreting it in light of 

their expertise, and then laying out 

their investigative and analytic pro- 

cess to the jury, the psychiatrists for 

each party enable the jury to make 

its most accurate determination of 

the truth on the issue before them. 

It is for this reason that States rely 

on psychiatrists as examiners, con- 

sultants, and witnesses, and that pri- 

vate individuals do as well, 
[470 US 82] 

when 

they can afford to do sof In so say- 

ing, we neither approve nor disap- 

prove the widespread reliance on 

psychiatrists but instead recognize 

the unfairness of a contrary holding 

in light of the evolving practice. 

[tc] The foregoing leads inexor- 

ably to the conclusion that, without 

the assistance of a psychiatrist to 

conduct a professional examination 

on issues relevant to the defense, to 

help determine whether the insanity 

defense is viable, to present testi- 

mony, and to assist in preparing the 

cross-examination of a State’s psy- 

chiatric witnesses, the risk of an 

inaccurate resolution of sanity issues 

{5 extremely high. (With) such _assis- 

tance, the defendants fairly able to 

present at least enough information 

to the jury, in a meaningful manner, 

as fo permit it to make a sensible 

determination. 

A defendant’s mental condition is 

not necessarily at issue in_every 

criminal proceeding, however, and it 

is unlikely that psychiatric assis- 

tance of the kind we have described 

would be of probable value in cases 

where it is not. The risk.of error 
from denial of such assistance, as 

well as its probable value, are most 

  

7. Gardner, The Myth of the Impartial 

Psychiatric Expert—Some Comments Con- 

cerning Criminal Responsibility and the De- 

cline of the Age of Therapy, 2 Law & Psychol- 

ogy Rev 99, 113-114 (1976). In addition, “[t]es- 

timony emanating from the depth and scope 

of specialized knowledge is very impressive to 

a jury. The same testimony from another 

source can have less effect.” F. Bailey & H. 

Rothblatt, Investigation and Preparation of 

Criminal Cases § 175 (1970); see also ABA 

Standards for Criminal Justice 5-1.4, Com- 

mentary, p 5-20 (2d ed 1982) (“The quality of 

representation at trial . . . may be excellent 

and yet valueless to the defendant if the 

defense requires the assistance of a psychia- 

trist . . . and no such services are available”). 

8. See also Reilly v Barry, 250 NY 456, 461, 

166 NE 165, 167 (1929) (Cardozo, C. J) 

(“[Ulpon the trial of certain issues, such as 

insanity or forgery, experts are often neces- 

sary both for prosecution and for defense. . . 

[A] defendant may be at an unfair disadvan- 

tage, if he is unable because of poverty to 

parry by his own witnesses the thrusts of 

those against him”); 2 L Goldstein & F. Lane, 

Goldstein Trial Techniques §14.01 (2d ed 

1969) (“Modern civilization, with its complexi- 

ties of business, science, and the professions, 

has made expert and opinion evidence a ne- 

cessity. This is true where the subject matters 

involved are beyond the general knowledge of 

the average juror”); Henning, The Psychia- 

trist in the Legal Process, in By Reason of 

Insanity: Essays on Psychiatry an the Law 

217, 219-220 (L. Freedman ed, 1983) (discuss- 

ing the growing role of psychiatric witnesses 

as a result of changing definitions of legal 

insanity and increased judicial and legislative 

acceptance of the practice). 
+ 65   

  

 



SW 
£ 

| 
Py 

ih ¥. é LV ALN 

I ABET threshold showing to the trial court 

1 Y Laud '® that his sanity is likely to be a sig- 
4 

U 

E mY 

Va? 

U.S. SUPREME COURT REPORTS 

predictably at their height when the 

defendant’s mental condition-is seri- 

ously.in—question. When the defen-" 
dant—is able to make an ex parte 
  

  

    

nificant factor in 
bomeee=—=1470 US 83) 

his defense, the 

need for the assistance of a psychia- 
trist-is rea appa CItis h 

at a defense may be devas- 

tated by the absence of a psychiatric 

examination and testimony; with 

such assistance, the defendant might 

have a reasonable chance of success. 

In such a circumstance, where the 

potential accuracy of the jury’s de- 

termination is so dramatically en- 

hanced, and where the interests of 

the individual and the State in an 

accurate proceeding are substantial, 

the State’s interest in its fisc must 

that the indigent defendant has a 

constitutional right to choose a psy- 

chiatrist of his personal liking or to 

receive funds to hire his own. Our 

concern is that the indigent defen- 

dant have access to a competent 

psychiatrist for the purpose we have 

discussed, and as in the case of the 

provision of counsel we leave to the 

States the decision on how to imple- 

ment this right. 

84 L Ed 2d 

B 

[5a] Ake also was denied the 

means of presenting evidence to re- 

but the State’s evidence of his future 

dangerousness. The foregoing discus- 

sion compels a similar conclusion in 

the context of a capital sentencing 

proceeding, when the State presents 

psychiatric evidence of the defen- 

dant’s future dangerousness. We 

have_repeatedly recognized the de- 

feidant’s compelling interest in fair 

adjudication at the sentencing phase 

of a capital case. The State. 1go, has 

a profound interest. 
[470 US 84] 

in assuring that 

its ultimate sanction 1S not errone- 

ously imposed, and we do not see 
why monetary considerations should 

be more persuasive in this context 

than at trial. The variable on which 

we must focus is, therefore, the prob- 

able value that the assistance of a 

psychiatrist will have in this area, 

and the risk attendant on its ab- 

sence. 

This Court has upheld the practice 

in many States of placing before the 

jury psychiatric testimony on the 

question of future dangerousness, 

see Barefoot v Estelle, 463 US 880, 

896-905, 77 L Ed 2d 1090, 103 S Ct 

3383 (1983), at least where the de- 

fendant has had access to an expert 

of his own, id., at 899, n 5, 77 L Ed 

2d 1090, 103 S Ct 3383. In so hold- 

ing, the Court relied, in part, on the 

assumption that the factfinder would 

have before it both the views of the 

prosecutor’s psychiatrists and the 

“opposing views of the defendant’s 

doctors” and would therefore be 

competent to “uncover, recognize, 

and take due account of . . . short- 

  

9. In any event, before this Court the State 

concedes that such a right exists but argues 

only that it is not implicated here. Brief for 

Respondent 45; Tr of Oral Arg 52. It therefore 

66 

Fo; 

recognizes that the financial burden is not 

always so great as to outweigh the individual 

-interest.  



84 L Ed 2d 

Henied the 

ence to re- 

f his future 
ing discus- 

inclusion in 

sentencing 

hte presents 
the defen- 

sness. We 
bed the de- 

rest in fair 
ncing phase 
hte, too, has 

suring that 
not errone- 
do not see 

tions should 

this context 
ble on which 
bre, the prob- 
kistance of a 

this area, 

on its ab- 

| the practice 
hg before the 
ony on the 
hngerousness, 
463 US 880, 

N90, 103 S Ct 
‘here the de- 
to an expert 
nb 77L Ed 

3. In so hold- 
part, on the 

“tfinder would 
views of the 

ists and the 
e defendant’s 

therefore be 

ar, recognize, 
of . . . short- 
  

al burden is not 

igh the individual 

  

  

AKE v OKLAHOMA 
470 US 68, 84 L Ed 2d 58, 105 S Ct 1087 

comings” in predictions on this 

point. Id., at 899, 77 L Ed 2d 1090, 

103 S Ct 3383. Without a psychia- 

trist’s assistance, the defendant can- 

not offer a well-informed expert’s 

opposing view, and thereby loses a 

significant opportunity to raise in 

the jurors’ minds questions about 

the State’s proof of an aggravating 

factor. In such a circumstance, 

where the consequence of error is so 

great, the relevance of responsive 

psychiatric testimony so evident, and 

the burden on the State so slim, due 

process requires access to a psychiat- 

ric examination on relevant issues, 

to the testimony of the psychiatrist, 

and to assistance in preparation at 

the sentencing phase. 

C 

The trial court in this case be- 

lieved that our decision in United 

States ex rel. Smith v Baldi, 344 US 

561, 97 L Ed 549, 73 S Ct 391 (1953), 
absolved it completely of the obliga- 

tion to provide access to a psychia- 

trist. For two reasons, we disagree. 

First, neither Smith, nor McGarty v 

O’Brien, 188 F2d 151, 155 (CAl 
1951), to which the majority cited in 

Smith, even suggested that the Con- 

stitution does not require any psy- 
chiatric examination or assistance 

whatsoever. Quite to the contrary, 

the 
[470 US 85] 

record in Smith demonstrated 
that neutral psychiatrists in fact had 

examined the defendant as to his 
sanity and had testified on that sub- 

ject at trial, and it was on that basis 

that the Court found no additional 

assistance was necessary. Smith, su- 

pra, at 568, 97 L Ed 549, 73 S Ct 

391; see also United States ex rel. 

Smith v Baldi, 192 F2d 540, 547 

(CA3 1951). Similarly, in McGarty, 

the defendant had been examined by 

two psychiatrists who were not be- 

holden to the prosecution. We there- 

fore reject the State’s contention 

that Smith supports the broad prop- 

osition that “[t]here is presently no 

constitutional right to have a psychi- 

atric examination of a defendant’s 

sanity at the time of the offense.” 

Brief in Opposition 8. At most it 

supports the proposition that there 

is no constitutional right to more 

psychiatric assistance than the de- 

fendant in Smith had received. 

In any event, our disagreement 

with the State’s reliance on Smith is 

more fundamental. That case was 

decided at a time when indigent 

defendants in state courts had no 

constitutional right to even the pres- 

ence of counsel. Our recognition 

since then of elemental constitu- 

tional rights, each of which has en- 

hanced the ability of an indigent 

defendant to attain a fair hearing, 

has signaled our increased commit- 

ment to assuring meaningful access 

to the judicial process. Also, neither 

trial practice nor legislative treat- 

ment of the role of insanity in the 

criminal process sits paralyzed sim- 

ply because this Court has once ad- 

dressed them, and we would surely 

be remiss to ignore the extraordinar- 

ily enhanced role of psychiatry in 

criminal law today. Shifts in all 

these areas since the time of Smith 

convince us that the opinion in that 

case was addressed to altogether dif- 

  

10. See Henning, supra n 8; Gardner, supra 
n 7, at 99; H. Huckabee, Lawyers, Psychia- 
trists and Criminal law: Cooperation or 

Chaos? 179-181 (1980) (discussing reasons for 
the shift toward reliance on, psychiatrists); 

Huckabee, Resolving the Problem of Domi- 

nance of Psychiatrists in Criminal Responsi- 

bility Decisions: A Proposal, 27 Sw L J 790 

(1973). 

67    



U.S. SUPREME COURT REPORTS 

ferent variables, and that we are not 
limited by it in considering whether 
fundamental fairness today requires 
a different result. 

[470 US 86] 
Iv 

[6] We turn now to apply these 
standards to the facts of this case. 
On the record before us, it is clear 
that Ake’s mental state at the time 
of th& offense Was a substantial fac- 
tor in his defense, and that the trial, 
court was on_notice of that fact 
when the request for a court-ap- 
pointed psychiatrist was made. For 
one, Ake’s sole defense was that of 
insanity. Second, Ake’s behavior at 
arraignment, just four months after 
the offense, was so bizarre as to 
prompt the trial judge, sua sponte, 
to have him examined for compe- 
tency. Third, a state psychiatrist 
shortly thereafter found Ake to be 
incompetent to stand trial, and sug- f at sentencing. We therefore conclude 

gested that he be committed. Fourth, 

when he was found to be competent 
six weeks later, it was only on the 
condition that he be sedated with 
large doses of Thorazine three times 
a day, during trial. Fifth, the psychi- 
atrists who examined Ake for com- 
petency described to the trial court 
the severity of Ake’s mental illness 
less than six months after the of- 
fense in question, and suggested that 

84 L Ed 2d 

this mental illness might have be- 
gun many years earlier. App 35. 
Finally, Oklahoma recognizes a de- 
fense of insanity, under which the 
initial burden of producing evidence 
falls on the defendant.” Taken to- 
gether, these factors make clear that 
the question of Ake’s sanity. .was 
likely to be a significant factor in his 
defense. Tm" 

[5b] In addition, Ake’s future dan- 
gerousness was a significant factor 
at the sentencing phase. The state 
psychiatrist who treated Ake at the 
state mental hospital testified at the 
guilt phase that, because of his men- 
tal illness, Ake posed a threat of 
continuing criminal violence. This 
testimony raised the issue of Ake’s 
future dangerousness, which is an 
aggravating factor under Oklaho- 
ma’s capital sentencing scheme, 
Okla Stat, Tit 21, § 701.12(7) (1981), 
and on which the prosecutor relied 

that Ake also 
[470 US 87] 

was entitled to the 
assistance of a psychiatrist on this 
issue and that the denial of that 
assistance deprived him of due pro- 
cess.!® 

Accordingly, we reverse and re- 
mand for a new trial. 

It is so ordered. 

SEPARATE OPINIONS 

Chief Justice Burger, concurring 
in the judgment. 

This is a capital case in which the 
Court is asked to decide whether a 

State may refuse an indigent defen- 
dant “any opportunity whatsoever” 
to obtain psychiatric evidence for 
the preparation and presentation of 

  

11. See n 1, supra. 

12. We express no opinion as to whether 
any of these factors, alone or in combination, 
is necessary to make this finding. 

13. Because we conclude that the Due Pro- ! 

E 

68 

cess Clause guaranteed to Ake the assistance 
he requested and was denied, we have no 
occasion to consider the applicability of the 
Equal Protection Clause, or the Sixth Amend- 
ment, in this context.    



  

MEMORANDUM 
  

To: Jack Boger 
From: Eric Cumfer cl 
Re: McCleskey, Ake —the Failure to Appoint Experts for 

McCleskey. 
Date: May 27, 1937 
Filename: MCYMEM?2 

  

You asked me to track down some cases on whether Ake v. 
Oklahoma is new law, especially anything in the Eleventh Circuit 
and Georgia. Also, you wanted to know if Ake had been 
interpreted to include ballistics or experts other than 
psychiatrists. I looked at the Shephard citations to Ake in the 
Eleventh Circuit and Georgia; I am afraid I have not had time to 
check the cites in the other circuits. 

  

Ake as New Law. 

I have found nothing interesting in Georgia case law on any 
of the questions. In my quick scan through the Eleventh Circuit, 
I found two cases of note. 

In Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986), 
a panel of the Eleventh Circuit Court of Appeals considered the 
appeal of a denial of a habeas petition requested by a death 

  

sentenced prisoner. The Florida trial court had denied 
Thompson’s request for experts to conduct neurological and 
psychiatric exams of the defendant; The opinion is confusing as 
to why counsel requested the experts; apparently the motion at 
the trial court spoke of possible insanity at the time of the 
offense and incompetency to stand trial, but the appellate 
attorney argued that the refusal restricted Thompson’s 
presentation of mitigating evidence. The Court held that the 
failure of the trial counsel to request experts to present 
mitigating evidence distinguished —the case "Fron Ake. It also 
stated that the failure of Thompson’s trial attorney to request 
psyciatric experts to develop mitigating evidence was not 
ineffective assistance of counsel because Ake was an unforseeable 
change in the law. Id at 1459. 

In Magwood v. Smith, 791 F.2d 1438 (11th Cir. 1986), the 
Court affirmed the grant of a habeas writ on the ground that 
there was insufficient evidence to support the rejection by the 
trial judge of two mitigating circumstances relating to 

    

  

diminished capacity at the time of the offense. The Court 
rejected Magwood’s Ake claim because Magwood had access to 
psychiatrists; in doing so, the Court refused to address the 
state’s contention that Ake had retroactive effect because the 
Eleventh Circuit had long recognized the right of a criminal 
defendant to psychiatric assistance in appropriate circumstances. 
Id ar 1443. 

 



  

Extension of Ake to Other Experts. 
There are some cases which I have not had time to look at, 

but TI doubt they will be of much help becuase they appear to be 
based on a federal statute giving federal defendants the right to 
apointment of experts. I will check these out next week. 

The only thorough discussion of the extension of Ake to 
non-psychiatric experts is in Moore v. Kemp, 809 F.2d 702 (11th 
Cir. 1987) (en banc). Moore was a rehearing of the case which 
the U.S. District Court relied on below in McCleskey to deny 
relief on this claim. The opinion is joined in the relevant part 
by seven judges. The remaining six judges considering the case 
joined the section of Johnson’s dissent which discussed the Ake 
claim. Both majority and dissent accepted the proposition that 
Ake applies to experts other than psychiatrists, although the 
majority opinion waffled on the point. Tjoflat, writing for the 
court, wrote the opinion as if Ake did apply, but also states 
that the point is unsettled and that the opinion will discuss it 
for the sake of argument. The majority rejected Moore’s claim 
that the state unconstitutionally denied him the assistance of 
experts. The Court requires that defendants demonstrate to the 
trial court a basis for the defense, the specific kind of expert 
needed, and why the expert is necessary. Id at 712. Moore failed 
to make that showing to the trial court; he did not even 
specify the kind of expert required. 

Johnson’s dissent criticized the majority as setting a 
nearly impossible showing for the defense to make to have a right 
to an expert. Johnson states that the majority relies on 
language in Ake which was specific to the case and analyzes the 
right claimed under the three pronged general test described in 

  

  

Ake. Johnson would only require a bona fide showing of 
reasonableness to the denfendant’s request. Id at 744. 

I have left the copies of the cases I discussed above. I 
will be glad to do more work on this next week when I get back 
from Florida. 

 



    

  

    
    

      

    

   

    

    

                                          

     

BOBBY CALDWELL, Petitioner 

v 

MISSISSIPPI 

472 US —, 86 L Ed 2d 231,105 S Ct — 

[No. 83-6607] 

Argued February 25, 1985. Decided June 11, 1985. 

Decision: Death sentence imposed by jury which was led to believe by 
prosecutor’s argument that responsibility for determining the appropriate- 
ness of a death sentence rested not with the jury, but with an appellate 
court, held invalid under Eighth Amendment. 

SUMMARY 

A jury in a Mississippi trial court returned a verdict of death for a 
defendant convicted of capital murder, after the prosecutor, in response to 
closing arguments by defense counsel which sought to impress upon the jury 
the enormity of their decision, had argued that these comments were unfair 
because a sentence of death would be subject to automatic review, and the 
trial judge denied an objection on the ground that this was proper informa- 
tion for the jury. The Supreme Court of Mississippi affirmed both the 
conviction and the death sentence, holding that the prosecutor’s comments 
did net violate the Eighth Amendment, since states have the right to decide 
whether it is error to mention to jurors the matter of appellate review, 
under the authority of California v Ramos (1983) 463 US 992, 77 L Ed 2d 
1171, 103 S Ct 3446 (443 So 2d 806). 

On certiorari, the United States Supreme Court reversed in part and 
remanded. Although unable to agree on an opinion as to the application of 
California v Ramos, five members of the court agreed that the death 
sentence in this case was invalid under the Eighth Amendment and must 
therefore be vacated. In an opinion by MARSHALL, J., part of which (all but 
Part IV-A) constituted the opinion of the court, joined by BRENNAN; BLACK- 
MUN, STEVENS, and O'CONNOR, JJ., it was held that it was constitutionally 
impermissible to rest a death sentence on a determination made by a 
sentencer who has been led to believe that the responsibility for determin- 
ing the appropriateness of the defendant’s death rests elsewhere. With 

231 

  

   



REPORTS 86 L Ed 2d 

ined by BRENNAN, BLACKMUN, 
at that decision did not leave 
ies to any information and 
es, and that the argument in 
hority because that argument 
review and of the jury’s role 

bly valid sentencing considera- 

red in the judgment, express- 
re impermissible because they 
br that diminished the jury’s 
Ramos does not prohibit the 
htion regarding the jury’s role 
bentencing decision. 

| WHITE, J., dissented, express- 
, taken as a whole, had not 
nsibility. 

  

RY® REFERENCES 

Am Jur 2d, Trial § 230 

| Procedure §§ 22:832, 

dments 

stitutional Law § 854 

; Cruel and Unusual 

1; Capital Cases; Cruel 
ind Punishment : 

unsel; Capital Punish- 
t; Sentence and Pun- 

can be checked for 

ry and annotation ref- 
ter research system. 

ENCES 

of death penalty and proce- 

kl and unusual punishment.       

8 

CALDWELL v MISSISSIPPI 
86 L Ed 2d 231 

HEADNOTES 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

Criminal Law §§82, 83 — cruel 

and unusual punishment — 
death penalty — effect of ar- 
gument noting appellate re- 
view 

la-1c. It is constitutionally imper- 

missible to rest a death sentence on 

a determination made by a sen- 

tencer who has been led to believe 

that the responsibility for determin- 

ing the appropriateness of the defen- 

dant’s death rests elsewhere; thus, in 

a capital case, where the prosecutor 

sought to rebut defense counsels 

effort to impress upon the sentenc- 

ing jury the enormity of a decision 

to impose the death penalty by in- 

forming the jury that such a deci- 

sion would be subject to automatic 

appellate review, the sentence of 
death imposed by the jury must be 
vacated. (Rehnquist, J., Burger, Ch. 

J., and White, J., dissented in part 

from this holding.) 

Constitutional Law §854 — due 
process — criminal matters — 
defendant’s right to appoint- 
ment of experts 

2a, 2b. The denial of a criminal 
defendant’s request that the trial 
court appoint a criminal investiga- 

tor, a fingerprint expert, and a bal- 

listics expert to assist him does not 
deprive the defendant of due process 

of law, where the defendant offers 

little more than undeveloped asser- 

tions that the requested assistance 

would be beneficial. 

Appeal § 487 — necessity that de- 
cision be controlling — ade- 
quate state grounds — gener- 

ally 
3. The mere existence of a basis 

for a state procedural bar does not 

deprive the United States Supreme 
Court of jurisdiction to review a 

state court decision; the state court 

must actually have relied on the 
procedural bar as an independent 

basis for its disposition of the case; 

moreover, the Supreme Court will 

not assume that a state court deci- 

sion rests on adequate and indepen- 

dent state grounds when the state 

court decision fairly appears to rest 

primarily on federal law, or to be 

interwoven with the federal law, and 

when the adequacy and indepen- 

dence of any possible state law 

ground is not clear from the face of 

the opinion. 

SYLLABUS BY REPORTER OF DECISIONS 

In a bifurcated proceeding con- 
ducted pursuant to Mississippi's cap- 
ital punishment statute, petitioner 
was convicted of murder and sen- 
tenced to death. Petitioner’s lawyers 
in their closing argument at the 
sentencing stage, referred to peti- 
tioner’s youth, family background, 
and poverty, as well as to general 
character evidence, and they asked 

the jury to show mercy, emphasizing 

that the jury should confront the 

gravity and responsibility of calling 

for another’s death. In response, the 

prosecutor urged the jury not to 

view itself as finally determining 

whether petitioner would die, be- 

cause a death sentence would be 

reviewed for correctness by the Mis- 

sissippi Supreme Court. That court 

233   

  

    

    

 



U.S. SUPREME COURT REPORTS 86 L Ed 2d 

unanimously affirmed the conviction 
but affirmed the death sentence by 
an equally divided court, rejecting, 
in reliance on California v Ramos, 
463 US 992, 77 L Ed 2d 1171, 103 S 
Ct 3446, the contention that the 
prosecutor’s comments violated the 
Eighth Amendment. 

Held: The death sentence is va- 
cated. 

443 So 2d 806, reversed in part 
and remanded. 

Justice Marshall delivered the 
opinion of the Court with respect to 
all but Part IV-A, concluding that: 

1. Where an examination of the 
decision below as to the issue of the 
prosecutor’s comments does not indi- 
cate that it rested on adequate and 
independent state grounds, namely, 
petitioner’s failure to comply with a 
Mississippi procedural rule as to 
raising the issue on appeal, this 
Court does not lack jurisdiction to 
decide the issue. 

2. It is constitutionally impermissi- 
ble to rest a death sentence on a 
determination made by a sentencer 
who has been led to believe, as the 
jury was in this case, that the re- 
sponsibility for determining the ap- 
propriateness of the defendant's 
death rests elsewhere. Belief in the 
truth of the assumption that sen- 
tencers treat their power to deter- 
mine the appropriateness of death as 
an “awesome responsibility” has al- 
lowed this Court to view sentencer 
discretion as consistent with and in- 
dispensable to the Eighth Amend- 
ment’s “need for reliability in the 
determination that death is appro- 

- priate punishment in a specific 
case.” Woodson v North Carolina 
428 US 280, 305, 49 L Ed 2d 944, 96 
S Ct 2978 (plurality opinion). 

3. There are several reasons to 
fear substantial unreliability as well 

234 

as bias in favor of death sentences 
when there are state-induced sugges- 
tions that the sentencing jury may 
shift its sense of responsibility to an 
appellate court. 

(a) The “delegation” of sentencing 
responsibility that the prosecutor 
here encouraged would not simply 
postpone petitioner’s right to a fair 
determination of the appropriate- 
ness of his death; rather, it would 
deprive him of that right, for an 
appellate court, unlike the sentenc- 
ing jury, is ill-suited to evaluate the 
appropriateness of death in the first 
instance. ' 

(b) Even when a sentencing jury is 
unconvinced that death is the appro- 
priate punishment, it might never- 
theless wish to “send a message” of 
extreme disapproval for the defen- 
dant’s acts. This desire might make 
the jury very receptive to the prose- 
cutor’s assurance that it can err 
because the error can be corrected 
on appeal. A defendant might then 
be executed, although no sentencer 
had ever determined that death was 
the appropriate sentence. 

(¢) If a jury understands that only 
a death sentence, and not a life sen- 
tence, will be reviewed, it will also 
understand that any decision to 
“delegate” responsibility for sentenc- 
ing can only be effectuated by re- 
turning a death sentence. This pre- 
sents the specter of the imposition of 
death based on an irrelevant factor 
and would also create the danger of 
a defendant’s being executed without 
any determination that death was 
the appropriate punishment. 

(d) The uncorrected suggestion 
that the jury’s responsibility for any 
ultimate determination of death will 
rest with others presents the danger 
that the jury will chose to minimize 
the importance of its role, especially 
where, as here, the jury is told that   

CALDY 

the alternative decisionmaker 
State’s highest court. 

4. As to the State’s cont 
that the prosecutor’s argumen 
an “invited” response to d 
counsel’s argument, and thu 
not unreasonable, neither the 
nor the court below explains 
the prosecutor’s argument ws 
likely to have distorted the 
deliberations because of anythi 
fense counsel said. 

5. Donnelly v. DeChristoforg 
US 637, 40 L Ed 2d 431, 94 
1868, does not preclude a find] 
constitutional error based o 
sort of impropriety that the | 
cutor’s argument contains. Alt 
that case warned against hq 
every improper and unfair argy 
of a state prosecutor to be a fd 

_ constitutional violation, it did 
insulate all prosecutorial com 
from federal constitutional 
tions. 

Justice Marshall, joined by J 
Brennan, Justice Blackmun, 
Justice Stevens, delivered an op 
with respect to Part IV-A, co 
ing that California v Ramos, s 
is not authority for holding 
States are free to expose capital 
tencing juries to any inform 
and argument concerning po 
tencing procedures. In Ramos, 
Court, in upholding a state stat 
requirement that capital sentej 
juries be instructed that the G 
nor could commute a life sen 

APPEAH 

E. Thomas Boyle argued 
William S. Boyd, III, arg 

OPINI 

Justice Marshall delivered 
opinion of the Court, except 2 
Part IV-A. 

 



  

    

U.S. SUPREME COURT REPORTS 

to believe that responsibility for de- 
termining the appropriateness of a 
death sentence rests not with the 
jury but with the appellate court 
which later reviews the case. In this 
case, a prosecutor urged the jury not 
to view itself as determining 
whether the defendant would die, 
because a death sentence would be 
reviewed for correctness by the State 
Supreme Court. We granted certio- 
rari, 469 US ——, 83 L Ed 2d 182, 
105 S Ct 243 (1984), to consider peti- 

tioner’s contention that the prose- 
cutor’s argument rendered the capi- 
tal sentencing proceeding inconsis- 
tent with the Eighth Amendment’s 
heightened “need for reliability in 
the determination that death is the 
appropriate punishment in a specific 
case.” Woodson v North Carolina, 
428 US 280, 305, 49 L Ed 2d 944, 96 
S Ct 2978 (1976) (plurality opinion). 
Agreeing with the contention, we 
vacate the sentence.! 

I 

Petitioner shot and killed the 
owner of a small grocery store in the 
course of robbing it. In a bifurcated 
proceeding conducted pursuant to 
Mississippi’s capital punishment 
statute, petitioner was convicted of 

86 L Ed 2d 

capital murder and sentenced to 
death. 

In their case for mitigation, peti- 
tioner’s lawyers put on evidence of 
petitioner’s youth, family back- 
ground, and poverty, as well as gen- 
eral character evidence. In their 
closing arguments they referred to 
this evidence and then asked the 
jury to show mercy. The arguments 
were in large part pleas that the 
jury confront both the gravity and 
the responsibility of calling for an- 
other’s death, even in the context of 
a capital sentencing proceeding. 

“[Elvery life is precious and as 
long as there’s life in the soul of a 
person, there is hope. There is 
hope, but life is one thing and 
death is final. So I implore you to 
think deeply about this matter. It 
is his life or death—the decision 
you're going to have to make, and 
I implore you to exercise your pre- 
rogative to spare the life of Bobby 
Caldwell. . . . I'm sure [the prose- 
cutor is] going to say to you that 
Bobby Caldwell is not a merciful 
person, but I say unto you he is a 
human being. That he has a life 
that rests in your hands. You can 
give him life or you can give him 
death. It’s going to be your deci- 
sion. I don’t know what else I can 

  

1. Petitioner also raises a challenge to his 
conviction, arguing that there was constitu- 
tional infirmity in the trial court’s refusal to 
appoint various experts and investigators to 
assist him. Mississippi law provides a mecha- | 
nism for state appointment of expert assis- | 
tance, and in this case the State did provide ¢ 
expert psychiatric assistance to Caldwell at | 
state expense. But petitioner also requested | 
appointment of a criminal investigator, a fin- 
gerprint expert, "ang. a palnstics ex ert, and | 

tate Su- | 
preme Court affirmed the denials because the i 

requests were accompanied by no showing as | 
to thelr reasonableness. For example, the de- | 

\ tance of the type here sought. 
) 

those requests were denied. The . 

fendant’s request for a ballistics expert in- 

236 

 ) 
H 
? 

, 

cluded little more than “the general state- Y 
| 

ment that the requested expert ‘would be of 
great necessarius-witness.” 443 So 2d 806, , J 
812 (1983). Given that petitioner. offered littles 

“Tore than undeveloped assertions that the 
requested assistance would De beneficial, we 
find no deprivation of due process in the trial 
judge’s decision. Cf. Ake v Oklahoma, 470 US 
ey ee =, §4 1, Ed 2d 53, 105 S Ct 1087 
(1985) (discussing showing that would entitle 
defendant to psychiatric assistance as matter 
of federal constitutional law). We therefore 
have no need to determine as a matter of 

federal constitutional law what if any show- 
ing would have entitled a defendant to assis-   

C4 

say to you but we live i 
where we are taught t 
for an eye is not the sol 
You are the judges an 
have to decide his fate 
awesome responsibility, 
an awesome responsibil 
18-19. 

In response, the prosecu 
to minimize the jury’s se 
importance of its role. If 
prosecutor forcefully argue 
defense had done somethi 
illegitimate in trying to 
jury to feel a sense of resj 
for its decision. The prose( 
gument, defense counsel’s 
and the trial court’s rulin 
follows: 

“ASSISTANT DISTRI 
NEY: Ladies and gentle} 
tend to be brief. I'm in 
disagreement with the 
the defense has taken 
think it’s fair. I think it’{ 
think the lawyers kno 
Now, they would have yq 
that you’re going to kill 
and they know—they k 
your decision is not the f{ 
sion. My God, how unfai 
be? Your job is reviews] 
know it. Yet the . . . 

“COUNSEL FOR DEF 
Your Honor, I'm going to 
this statement. It’s out of 

“ASSISTANT DISTRICT 
NEY: Your Honor, th 
their argument, they { 
panel was going to kill th 
think that’s terribly unfaj 

“THE COURT: All righ 
and make the full expr 
the Jury will not be co 
think it proper that the j 
izes that it is reviewable 3 

 



Executor of the 
B. Gaskill, 

iff-Appellee, 

of America, 
pellant. 

433. 

of Appeals, 
cuit. 

986. 

ed States District 
Kansas; Frank G. 
b2-1160). 

[., Dept. of Justice 
Asst. Atty. Gen. 
bert A. Bernstein, 
Washington, D.C.), 
S. Atty., Topeka, 
fendant-appellant. 

el A. Doll of Man- 

Rebein Chartered, 
klso on brief), for 

Chief Judge, 

ind BRIMMER,* 

ge. 

or further consid- 

iment of counsel, 

appeal, and the 
ourt of the State 

certified to it in 

. United States, 
2 (1985). 

eof, it is ordered 

e United States 

strict of Kansas 

561 F.Supp. 78, 

forthwith. 

g by designation. 

THOMPSON v. WAINWRIGHT 1447 
Cite as 787 F.2d 1447 (11th Cir. 1986) 

William Lee THOMPSON, 

Petitioner-Appellant, 

Cross-Appellee, 

Vv. 

Louie L. WAINWRIGHT, Secretary, Flor- 

ida Department of Corrections, Respon- 

dent-Appellee, Cross-Appellant. 

No. 84-5815. 

United States Court of Appeals, 

Eleventh Circuit. 

April 10, 1986. 

Rehearing and Rehearing En Banc 

Denied May 30, 1986. 

After remand, 714 F.2d 1495, the Unit- 

ed States District Court for the Southern 

District of Florida, James C. Paine, J., de- 

nied relief on petition for writ of habeas 

corpus, and the petitioner appealed. The 

Court of Appeals, Kravitch, Circuit Judge, 

held that although defense counsel's fail- 

ure to conduct any investigation of the 

petitioner's background fell outside the 

scope of reasonably professional assist- 

ance, the petitioner was not entitled to re- 

lief as the jury still would have concluded 

that the balance of aggravating and miti- 

gating circumstances warranted death. 

Affirmed. 

1. Criminal Law &641.13(5) 

Petitioner, who was found competent 

to stand trial by four psychiatrists when he 

was first charged with murder, was not 

prejudiced by his counsel's failure to pre- 

vent the guilty plea proceeding from going 

forward, since there were no further steps 

which defense counsel, whose petition for a 

new examination to determine petitioner’s 

competence was denied and who brought 

the possibility of petitioner's incompetence 

to the trial judge's attention, could have 

taken to prevent the guilty plea or to con- 

vince the court that the petitioner was in- 

competent. 

2. Criminal Law &641.13(6) 

A criminal defense counsel has a duty 

to investigate, but that duty is limited to 

reasonable investigation. 

3. Criminal Law 641.13(6) 

Defense counsel's failure to conduct 

any investigation of petitioner's back- 

ground fell outside the scope of reasonably 

professional assistance. U.S.C.A. Const. 

Amend. 6. 

4. Criminal Law &2641.13(2) 

In light of petitioner's adamant refusal 

to testify during sentencing phase of capi- 

tal trial, defense counsel's decision to go 

forward as best he could under the circum- 

stances was not outside bounds of reason- 

ably professional assistance. U.S.C.A. 

Const. Amend. 6. 

5. Criminal Law €641.13(6) 

Although defense counsel's failure to 

conduct any investigation of petitioner's 

background fell outside the scope of rea- 

sonably professional assistance, petitioner 

was not entitled to relief as the jury still 

would have concluded that the balance of 

aggravating and mitigating circumstances 

warranted death. U.S.C.A. Const.Amend. 

6. 

6. Criminal Law €2641.13(2) 

Petitioner was not entitled to relief on 

his ineffective assistance of counsel claim 

based on his defense counsel's closing ar- 

gument in a capital case; in light of over- 

whelming evidence of aggravating circum- 

stances, petitioner failed to show a reason- 

able probability that the closing argument, 

even when considered together with de- 

fense counsel's failure to present mitigat- 

ing evidence, would have changed the out- 

come. U.S.C.A. Const.Amend. 6. 

7. Homicide 354 

Petitioner was not entitled to relief on 

his claim that the Florida trial court re- 

stricted consideration of nonstatutory miti- 

gating factors in sentencing phase of mur- 

der trial; petitioner did not proffer any 

significant nonstatutory mitigating circum- 

stances either at sentencing or at the dis- 

trict court’s evidentiary hearing. 

8. Criminal Law ¢1208.1(6) 

Lockett v. Ohio, which entitles a capi- 

tal defendant to introduce all relevant miti-   
  

  

   



  

  

1448 

gating evidence at sentencing, does not re- 
quire a state to abandon its rules of evi- 
dence concerning what is competent testi- 
mony. 

9. Criminal Law 625 

A court that has a bona fide doubt of 
defendant’s competency to stand trial must 
sua sponte conduct a hearing to consider 
that issue. 

10. Mental Health 432 

Test for competency to stand trial is 
whether the defendant has sufficient 
present ability to consult with his lawyer 
with a reasonable degree of rational under- 
standing and whether he has a rational as 
well as a factual understanding of the pro- 
ceedings against him. 

11. Criminal Law &625 

There was no need for trial judge to 
further inquire into competency of petition- 
er, who was found competent to stand trial 
by four psychiatrists at first plea proceed- 
ing and who correctly answered numerous 
questions from the judge at the plea pro- 
ceeding. 

12. Costs 302.4 

Ake, which requires appointment of 
psychiatric assistance only where a show- 
ing of need is made before trial, did not 
require appointment of a psychiatrist at the 
sentencing phase of petitioner's capital 
murder trial where the petitioner did not 
request psychiatric assistance to aid in 
presenting mitigating circumstances. 

13. Habeas Corpus ¢=85.1(2) 

Since state court refused to hold a 
hearing on issue of voluntariness of the 
petitioner’s plea, findings of the state court 
in the collateral proceeding were not enti- 
tled to a presumption of correctness in 
considering the petitioner's federal habeas 
petition. 28 U.S.C.A. § 2254(d). 

14. Criminal Law €=273.1(5) 

Petitioner failed to present convincing 
evidence that his guilty plea to murder 
charge was not voluntary. 

787 FEDERAL REPORTER, 2d SERIES 

Michael L. Von Zamft, Talburt, Kubicki, 
Bradley & Draper, Miami, Fla. (court-ap- 
pointed), Diane E. Marger, Ft. Lauderdale, 
Fla., for petitioner-appellant, cross-appel- 
lee. 

Jim Smith, Atty. Gen. of Fla., Calvin L, 
Fox, Asst. Atty. Gen. of Fla. Dept. of 
Legal Affairs, Miami, Fla., for respondent- 
appellee, cross-appellant. 

Appeals from the United States District 
Court for the Southern District of Florida, 

Before GODBOLD, Chief Judge, KRAV- 
ITCH and HATCHETT, Circuit Judges. 

KRAVITCH, Circuit Judge: 

William Thompson, a prisoner of Florida, 
filed a petition for a writ of habeas corpus 
in the federal district court asking that his 
murder conviction and death sentence be 
set aside. After an evidentiary hearing the 
district court denied relief. We affirm. 

BACKGROUND 
The Florida Supreme Court summarized 

the facts of the crime in deciding Thomp- 
son’s direct appeal: 

The appellant Thompson, Rocco Su- 
race, Barbara Savage, and the victim Sal- 
ly Ivester were staying in a motel room. 
The girls were instructed to contact their 
homes to obtain money. The victim re- 
ceived only $25 after telling the others 
that she thought she could get $200 or 
$300. Both men became furious. Su- 
race ordered the victim into the bedroom, 
where he took off his chain belt and 
began hitting her in the face. Surace 
then forced her to undress, after which 
the appellant Thompson began to strike 
her with the chain. Both men continued 
to beat and torture the victim. They 
rammed a chair leg into the victim's vagi- 
na, tearing the inner wall and causing 
internal bleeding. They repeated the 
process with a night stick. The victim 
was tortured with lit cigarettes and light- 
ers, and was forced to eat her sanitary 
napkin and lick spilt beer off the floor. 
This was followed by further severe   

 



alburt, Kubick;, 
i, Fla. (court-ap. 

Ft. Lauderdale, 
nt, cross-appel. 

f Fla., Calvin L,, 
Fla., Dept. of 
for respondent. 

i States District 
trict of Florida, 

f Judge, KRAV. 
Circuit Judges, 

e: 

foner of Florida, 
habeas corpus 
asking that his 

ith sentence be 

jary hearing the 

f. We affirm. 

D 

rt summarized 

eciding Thomp- 

on, Rocco Su- 

| the victim Sal- 

ht a motel room. 

to contact their 

The victim re- 

ing the others 

Id get $200 or 

furious. Su- 

o the bedroom, 
hain belt and 

face. Surace 

is, after which 

egan to strike 

men continued 

victim. They 
e victim's vagi- 
| and causing 
repeated the 

The victim 

pttes and light- 
t her sanitary 
off the floor. 

urther severe 

re TE I TR EE BT w— - 
ee A UL ACE a ia Sed Rr EB TS 

THOMPSON v. WAINWRIGHT 1449 
Cite as 787 F.2d 1447 (11th Cir. 1986) 

beatings with the chain, club, and chair 

leg. The beatings were interrupted only 

when the victim was taken to a phone 

booth, where she was instructed to call 

her mother and request additional funds. 

After the call, the men resumed batter- 

ing the victim in the motel room. The 

victim died as a result of internal bleed- 

ing and multiple injuries. The murder 

had been witnessed by Barbara Savage, 

who apparently feared equivalent treat- 

ment had she tried to leave the motel 

room. 

Thompson v. State, 389 So.2d 197, 198 

(1980). 

Thompson and Surace both pled guilty 

and were sentenced to death, but these 

pleas and sentences were set aside by the 

Florida Supreme Court. Thompson v. 

State, 351 So.2d 701 (1977); Surace v. 

State, 351 So.2d 702 (1977). Upon remand, 

Thompson again pled guilty, and again was 

sentenced to death. The Florida Supreme 

Court affirmed, 389 So.2d 197 (1980); the 

state courts also denied collateral relief. 

410 So.2d 500 (1982). Thompson then filed 

a petition for habeas relief in the federal 

district court raising numerous grounds. 

He subsequently sought to amend his peti- 

tion to add claims based on ineffective as- 

sistance of counsel. Because these addi- 

tional claims had not been presented to the 

Florida courts, the district court granted a 

continuance to allow Thompson to exhaust 

the claims in state court and the state 

appealed. This court affirmed the district 

court’s continuance, but also stated that 

the district court, in its discretion, could 

have accepted the state’s offer to waive 

exhaustion with respect to the new claims. 

Thompson v. Wainwright, 714 F.2d 1495 

(11th Cir.1983), cert. denied, 466 U.S. 962, 

104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). On 

remand, the district court accepted the 

waiver, and, after an evidentiary hearing, 

found all of Thompson's claims without 

merit. 

I. INEFFECTIVE 

ASSISTANCE CLAIMS 

Thompson contends that his counsel, Ha- 

rold Solomon, was ineffective during entry 

of his second guilty plea and the sentencing 

proceeding. Solomon's representation of 

Thompson began after the first plea was 

set aside and continued through the state 

proceedings for collateral relief. 

In Strickland v. Washington, 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), 

the Supreme Court articulated the stan- 

dards for reviewing claims of ineffective 

assistance of counsel. The petitioner can 

prevail only if counsel's “acts or omissions 

were outside the wide range of profession- 

ally competent assistance,” id., 104 S.Ct. at 

2066, and “there is a reasonable probability 

that, but for counsel's unprofessional er- 

rors, the result of the proceeding would 

have been different.” Id. at 2068. The 

questions of whether counsel's perform- 

ance was deficient, and whether the de- 

fendant was prejudiced by any deficiency 

are mixed questions of fact and law. 104 

S.Ct. at 2070. The district court ruled that 

Solomon was not ineffective, and found 

that numerous of the alleged errors by 

Solomon resulted from Thompson's own ac- 

tions. 

A. Entry of the Guilty Plea 

(11 In Hill v. Lockhart, — U.S. —, 

106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), 

the Court made clear that the Strickland 

standards apply to the assistance of coun- 

sel in entering a plea. The record here 

indicates that after the Florida Supreme 

Court vacated Thompson's first guilty plea, 

Thompson again decided to plead guilty, 

although Solomon discussed the ramifica- 

tions of the plea with Thompson and told 

him that he was prepared to try the case. 

Nevertheless, Thompson contends that Sol- 

omon’s assistance before and during the 

plea proceeding fell outside the wide range 

of professionally competent assistance, and 

that but for Solomon’s ineffective assist 

ance there is a reasonable probability that 

Thompson would have been found incompe- 

tent to enter a plea. 

In Strickland, the Court noted that “[i}f 

it is easier to dispose of an ineffectiveness 

claim on the ground of lack of sufficient 

  

   



1458 787 FEDERAL REPORTER, 2d SERIES 

state to abandon its rules of evidence con- 

cerning what is competent testimony. Cf. 

Martin v. Wainwright, 770 F.2d 918, 938 

(11th Cir.1985) (Lockett does not abrogate 

Florida evidentiary rule which prevented 

defendant from admitting selected portions 

of documents without admitting entire doc- 

ument). 

III. WHETHER THE COURT SHOULD 
HAVE FURTHER INQUIRED INTO 
THOMPSON'S COMPETENCY TO 
STAND TRIAL 

[9,10] Thompson contends that the trial 

court should have conducted a hearing into 

his competency to stand trial. A court that 

has a bona fide doubt of the defendant's 

competency to stand trial must sua sponte 

conduct a hearing to consider that issue. 

Pate v. Robinson, 383 U.S. 375, 385, 387, 

86 S.Ct. 836, 842, 843, 15 L.Ed.2d 815 

(1966); Hance v. Zant, 696 F.2d 940, 948 

(11th Cir.), cert. denied, 463 U.S. 1210, 103 

S.Ct. 3544, 77 L.Ed.2d 1393 (1983). The 

test for competency to stand trial is: 

whether the defendant ‘has sufficient 

present ability to consult with his lawyer 

with a reasonable degree of rational under- 

standing—and whether he has a rational as 

well as factual understanding of the pro- 

ceedings against him.” Dusky v. United 

States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 

4 LEd.2d 824 (1960). The district court 

found that no doubt had been raised of 

Thompson's competency. 

[11] Three factors should be considered 

in determining whether the trial court vio- 

lated Pate by not conducting a hearing on 

competency: (1) evidence of the defend- 

ant’s irrational behavior; (2) his demeanor 

at trial; and (3) any prior medical opinion 

on his competency to stand trial. Drope v. 

Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 

908, 43 L.Ed.2d 103 (1975). Before the 

first plea proceeding in 1976, Thompson 

was examined by four psychiatrists, and all 

four found him competent to stand trial. 

Thompson filed a new motion for examina- 

tions in connection with the 1978 plea pro- 
ceeding, but as the Supreme Court of Flor- 
ida noted, nothing in the motion indicated 

any “circumstance that had caused the 

mental condition of the appellant to change 

since those prior examinations.” 389 So.2d 
at 199. 

Thompson contends that his responses 

during the trial judge's interrogation at the 

plea proceeding raised a doubt as to his 

competency. The trial judge interrogated 

Thompson regarding any past mental prob- 

lems, and whether he understood the pro- 

ceedings and the ramifications of pleading 

guilty. Thompson points to one response 

as raising a doubt: when the court asked 

Thompson if he had been employed in the 
past two years, Thompson answered yes; 

in fact, Thompson had spent the prior two 

years in either the county jail or on death 

row. This one incorrect response, how- 

ever, hardly indicates that Thompson was 

incompetent. Thompson correctly answer- 

ed numerous questions from the judge, and 

we conclude that there was no need for the 

judge to further inquire into Thompson's 

competency. 

IV. AKE CLAIM 

[12] Before the sentencing proceeding, 

Solomon requested that the court appoint 

Xperts to conduct psychiatric and neuro- 
16gical examinations of Thompson, The tri- 

aTCOUTT denied these requests and the Flor- 
ida Supreme Court affirmed. 389 So.2d at 
199. In his habeas petition, Thompson con- 

tends that the denial of psychiatric assist- 

ance unconstitutionally restricted the pre- 

sentation of mitigating circumstances. 

Subsequent to the district court's ruling on 

the petition, the Supreme Court decided 

Ake v. Oklahoma, — U.S. —, 105 S.Ct. 

1087, 84 L.Ed.2d 53 (1985), in which it es- 

tablished a limited right to court-appointed 

psychiatric assistance in presenting a de- 
fense. We now evaluate Thompson's claim 

in light of Ake. 

In Ake, the Supreme Court considered an 
indigent defendant's need for psychiatric 

assistance both at trial and at the death 

penalty sentencing hearing. With respect 

to guilt or innocence, the Court held 

that when a defendant demonstrates to 

the trial judge that his sanity at the time 

| 
| 
| 

 



had caused the 
pellant to change 
ions.” 389 So.24 

at his responses 
errogation at the 
doubt as to his 
dge interrogated 
past mental prob- 
lerstood the pro- 
ions of pleading 

to one response 

the court asked 

employed in the 

answered yes; 

nt the prior two 

jail or on death 
response, how- 

Thompson was 

orrectly answer- 

m the judge, and 

no need for the 

nto Thompson's 

AIM 

ing proceeding, 

e court appoint 
ptric and neuro- 

impson. The tri- 

sts and the Flor- 

d. 389 So.2d at 

, Thompson con- 
bychiatric assist- 

tricted the pre- 
circumstances. 

ourt’s ruling on 
Court decided 

. ——, 105 S.Ct. 

in which it es- 

court-appointed 

resenting a de- 

ompson’s claim 

considered an 

for psychiatric 

d at the death 

With respect 

ourt held 

lemonstrates to 

hity at the time 

THOMPSON v. WAINWRIGHT 1459 
Cite as 787 F.2d 1447 (11th Cir. 1986) 

of the offense is to be a significant factor 

at trial, the State must, at a minimum, 

assure the defendant access to a compe- 

tent psychiatrist who will conduct an ap- 

propriate examination and assist in eval- 

uation, preparation, and presentation of 

the defense. 

Id., 105 S.Ct. at 1097. 

Thompson's claim on appeal, however, is 
limited to the sentencing phase and the 

Court's discussion in Ake of the need for 

pSyCRIatric assistance in capital sentencing 

proceedings was somewhat different. The 

Court focused on the fact that certgin 
states place before the jury psychiatric evi- 

“dence of a defendant's future dangerqus- 
ness, and that the Court had approved such 

a practice. Id. at 1097 (quoting Barefoot v. 

Estelle, 463 U.S. 880, 896-905, 103 S.Ct. 
3383, 3395-3400, 77 L.Ed.2d 1090 (1983)). 
The Court held: 

In such a circumstance, where the conse- 

quence of error is so great, the relevance 

of responsive psychiatric testimony so 

evident, and the burden on the State so 

slim, due process requires access to a 

psychiatric examination on relevant is- 

sues, to the testimony of the psychiatrist, 

and to assistance in preparation at the 

sentencing hearing. 

Id., 105 S.Ct. at 1097. 

The motion filed with the trial court stat- 

ed that counsel believed Thompson suf- 
fered from a mental defect “which would 
render him incapable of assisting in his 
defense, and may have precluded the De- 

fendant from knowing right from wrong at 

the time of the alleged criminal acts.” The 

trial court heard the motion, and again no 

mention was made of mitigating circum- 

stances. Because Thompson. did.not..res 
quest psychiatric assistance to aid in 

presenting mitigating circumstances, Ake 

does not apply. Bowden wv. Kemp, 767 

7. We do not consider whether Thompson would 
have a valid Ake claim had he made a proper 
request. 

8. Solomon's failure to request psychiatric assist- 
ance with respect to mitigating circumstances 
was not ineffective assistance of counsel. The 
Supreme Court's decision in Ake was a change 

F.2d 761, 764; Bowden v. Francis, — U.S. 

——, 105 S.Ct. 1834, 1834-35, 85 L.Ed.2d 
135 (1985) (O’Connor, J., dissenting from 

remand to court of appeals in light of 
Ake). We hold therefore that Ake did not 

require appointment of a psychiatrist at the 

sentencing phase. 

Thompson did argue in his motion for a 

new trial and his brief on direct appeal to 

the Florida Supreme Court that the denial 

of psychiatric assistance limited the devel 

opment of mitigating circumstances. Ake, 

however, requires appointment of psychiat- 

ric assistance only where a showing of 

need is made before trial. 105 S.Ct. at 

1097.8 

V. COERCION OF 
THOMPSON'S PLEA 

Finally Thompson contends that his deci- 

sion to plead guilty, and to testify on be- 

half of Surace was not voluntary, but was 

coerced by threats from Surace. Thomp- 

son presented this claim to the Florida 

courts in a motion for collateral relief. The 

state trial court found Thompson's affida- 

vit not credible, and refused to hold a hear- 

ing. The Florida Supreme Court affirmed. 

410 So.2d 500 (1982). 

At the district court hearing, Thompson 

testified that he was coerced into pleading 
guilty and testifying for Surace. He ex- 
plained that while he and Surace were be- 
ing held together in 1978, Surace told 

Thompson to take credit for the killing or 

Surace would have him killed, and Thomp- 
son testified that he believed Surace could 

do this based on Surace’s membership in 

motorcycle gangs and Surace’s comrades in 

prison. Thompson introduced no evidence 

to corroborate this testimony, other than a 

stipulation by the state that at the time of 
Thompson's second plea, Thompson and Su- 
race were transported to the county court- 

in the law which was not foreseeable in Septem- 
ber 1978, and defendants are not entitled to an 
attorney capable of foresceing the future devel- 
opment of constitutional law. Proffitt v. Wain- 
wright, 685 F.2d 1227, 1249 & n. 34 (11th Cir. 
1982), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 
78 L.Ed.2d 697 (1983). 

  

   



  

  

791 FEDERAL REPORTER, 2d SERIES 

Billy Joe MAGWOOD, 

Petitioner-Appellant, 

Cross-Appellee, 

Vv. 

Fred SMITH, Commissioner, Alabama 

Department of Corrections; Willie E. 

Johnson, Warden, Holman Unit, Re- 

: spondents-Appellees, Cross-Appellants. 

No 85-7270. 

United States Court of Appeals, 

Eleventh Circuit. 

June 4, 1986. 

Defendant whose murder conviction 

was affirmed by both the Alabama Court 

of Criminal Appeals, 426 So0.2d 918, and the 

Alabama Supreme Court, 426 So.2d 929, 

petitioned for writ of habeas corpus. The 

United States District Court for the Middle 

District of Alabama, Truman M. Hobbs, 

Chief Judge, granted writ, 608 F.Supp. 218, 

defendant appealed, and State cross-appeal 

ed. The Court of Appeals, Henderson, Sen- 

ior Circuit Judge, held that: (1) permitting 

two physicians to examine defendant to 

determine his competency to stand trial and 

to testify at trial to rebut defendant's in- 

sanity defense did not deprive defendant of 

his Sixth Amendment right to counsel; (2) 

defendant was not denied effective assist 

ance of counsel; but (3) psychiatric evi- 

dence was insufficient to support state trial 

court's rejection at sentencing hearing of 

two proposed mitigating circumstances re- 

lating to defendant's allegedly diminished 

mental condition at time of murder. 

Affirmed. 

Clark, Circuit Judge, filed concurring 

opinion. 

1. Criminal Law &=641.12(2) 

Permitting two physicians to examine 

defendant, without notice to counsel, to 

determine his competency to stand trial and 

to testify at trial to rebut defendant's in- 

sanity defense did not deprive defendant of 

his Sixth Amendment right to counsel, 

where defendant's counsel requested the 

examination, were aware of time frame in 

which it would take place and were not 

surprised at use of physicians’ testimony. 

U.S.C.A. Const.Amend. 6. 

2. Criminal Law &=641.12(3) 

Defendant was not denied effective as- 

sistance of counsel when state trial court 

denied his request for public funds to hire 

a consulting psychiatrist, where four ex- 

perts gave opinions concerning defendant’s 

mental condition on date of the crime and 

three experts gave evidence highly favor- 

able to defendant's insanity defense. U.S. 

C.A. Const.Amend. 6. 

3. Habeas Corpus &=45.3(1.40) 

Petitioner in federal habeas corpus 

proceeding was barred from raising issue 

of whether Alabama imposed death penalty 

in racially discriminatory manner by failing 

to assert issue in state court. 

4. Habeas Corpus &=45.3(1.40) 

Petitioner in federal habeas corpus 

proceeding was estopped from raising issue 

of whether state trial judge should have 

questioned jury venire with respect to pos 

sible racial prejudice where petitioner's tri- 

al counsel made no request for such an 

inquiry. 

5. Criminal Law &641.13(2) 

Decision of trial counsel not to ques 

tion jury on possible racial prejudice did not 

constitute ineffective assistance, where de 

cision was based on their desire to keep 

race out of the trial and their knowledge of 

local racial attitudes. US.C.A. Const 

Amend. 6. 

6. Criminal Law &=641.13(6) 

Trial counsels’ failure to obtain bench 

warrant to secure appearance of member 

of state lunacy commission or to subpoena 

other two members of the commission 

not constitute ineffective assistance, where 

member's deposition and commission's T€ 

port were introduced. US.C.A. Const 

Amend. 6.   

7. Criminal Law 

Failure to us; 

to establish defe 

did not constitute 

counsel where de 

mation was a 8 

potentially harmi 

evidence. U.S.C. 

8. Constitutiona 

Fact that pet 
for purposes of 

litigation did not 

was insane as a 

law under Alaba 

court to suspend 
sentence of deat! 

he is insane, so t 

to challenge the 
§ 15-16-23. 

9. Criminal Law 

Alabama sta 

to suspend exec 

tence of death if 

ant iS insane w9 

grounds that it 

as to what evide 

fy its requireme 
available under 

determine if acc 

trial. Ala.Code 

10. Habeas Cor} 

Psychiatric 
staff of mental 

ing that petition 
for murder wag 
habeas corpus p 

11. Habeas Cor] 

Defendant's 

cutor’s statemer 

ing-phase final 4 
habeas corpus rj 

12. Habeas Co 
Federal hat 

reevaluate weig 

aggravating and 
state court in i 

termination is lg 

death-penalty st  



  
  

7. Criminal Law ¢641.13(6) 

Failure to use all available information 

to establish defendant's insanity defense 

did not constitute ineffective assistance of 

counsel where decision not to use all infor- 

mation was a strategic decision based on 

potentially harmful effect of part of that 

evidence. U.S.C.A. Const.Amend. 6. 

8. Constitutional Law €242.1(3) 

Fact that petitioner was presently sane 

for purposes of his federal habeas corpus 

litigation did not preclude finding that he 

was insane as a matter of Alabama state 

law under Alabama statute requiring trial 

court to suspend execution of person under 

sentence of death if court determines that 

he is insane, so that petitioner had standing 

to challenge the statute. Ala.Code 1975, 

§ 15-16-23. 

9. Criminal Law &978 

Alabama statute requiring trial court 

to suspend execution of person under sen- 

tence of death if it determines that defend- 

ant is insane was not unconstitutional on 

grounds that it failed to notify defendant 

as to what evidence was necessary to satis- 

fy its requirements, in light of standards 

available under Alabama common law to 

determine if accused is competent to stand 

trial. Ala.Code 1975, § 15-16-23. 

10. Habeas Corpus &85.4(1) 

Psychiatric evaluation prepared by 

staff of mental institution supported find- 

ing that petitioner under a death sentence 

for murder was sane at time of federal 

habeas corpus proceeding. 

11. Habeas Corpus &45.3(1.40) 

Defendant’s failure to object to prose- 

cutor’s statement to jury during sentenc- 

ing-phase final argument precluded federal 

habeas corpus review. 

12. Habeas Corpus &=92(1) 

Federal habeas corpus court will not 

reevaluate weight accorded to particular 

aggravating and mitigating factors used by 

state court in imposing sentence; this de- 

termination is left to state courts, provided 

death-penalty statute and sentencing hear- 

MAGWOOD v. SMITH 
Cite as 791 F.2d 1438 (11th Cir. 1986) 

1439 

ing meet relevant constitutional require- 

ments. 28 U.S.C.A. § 2254(d). 

13. Habeas Corpus €¢290.3(5) 

Federal habeas corpus court may re- 

view state court factual finding concerning 

existence of mitigating circumstances un- 

der state death-penalty statute. 28 U.S. 

C.A. § 2254(d). 

14. Constitutional Law ¢=270(1) 

Criminal Law &1213.2(2) 

In order to satisfy requirements of 

Eighth and Fourteenth Amendments, capi- 

tal sentencing scheme must provide sen- 

tencing authority with appropriate stan- 

dards that argue in favor of or against 

imposition of death penalty, thus eliminat- 

ing total arbitrariness and capriciousness in 

its imposition. U.S.C.A. Const.Amends. 8, 

14. 

15. Homicide ¢=354 

Psychiatric evidence was insufficient 

to support state trial court’s rejection at 

sentencing hearing of two proposed miti- 

gating circumstances relating to defend- 

ant’s allegedly diminished mental condition 

at time of murder. U.S.C.A. . Const. 

Amends. 8, 14; 28 US.C.A. § 2254(d); Ala. 

Code 1975, § 13-11-7(2, 6) (now § 13A-5- 

36(2, 6) (Repealed)). 

16. Habeas Corpus ¢=112 

Federal district court or Court of Ap- 

peals has no appellate jurisdiction over a 

state criminal case and hence has no au- 

thority to “remand” a case to state courts; 

federal court, however, is authorized to 

grant conditional writ of habeas corpus. 

J.L. Chestnut, Turner & Williams, Robert 

H. Turner, Selma, Ala., for petitioner-appel- 

lant, cross-appellee. 

Ed Carnes, Asst. Atty. Gen., Montgom- 

ery, Ala., for respondents-appellees, cross- 

appellants. 

Appeals from the United States District 

Court for the Middle District of Alabama. 

        

   

    

   

   
   
   

    

   

    

   
   

  

    

          

    

  

   
    

    

   
    

  

   
   

    

   

  

   

          

    

  

   

      

     



1440 791 FEDERAL REPORTER, 2d SERIES 

Before VANCE and CLARK, Circuit 

Judges, and HENDERSON, Senior Circuit 

Judge. 

HENDERSON, Senior Circuit Judge: 

Billy Joe Magwood, an Alabama state 

prisoner under sentence of death, peti- 

tioned the United States District Court for 

the Middle District of Alabama for a writ 

of habeas corpus, alleging nine grounds for 

relief. The district court rejected eight of 

the alleged errors, but granted the writ 

because the state trial judge erroneously 

rejected two mitigating circumstances dur- 

ing the sentencing phase of trial. We af- 

firm. 

The facts of this case are straightfor- 

ward and uncontested.! On January 3, 

1979, Billy Joe Magwood, a black male, was 

released from the Coffee County, Alabama 

jail where he had been serving a sentence 

for drug possession. Prior to his release, 

Magwood on several occasions had ex- 

pressed an intense desire to retaliate 

against Coffee County Sheriff Neil Grant 

ham for perceived injustices during his in- 

carceration. On the morning of March 1, 

1979, Magwood returned to the jail and 

shot Sheriff Grantham as the sheriff en- 

tered the building. This shooting was wit- 

nessed by Deputy Sheriff Thomas Weeks, 

who recognized Magwood from his prior 

imprisonment. Magwood was arrested la- 

ter that day and charged with capital mur- 

der. 

Magwood’s court-appointed counsel re- 

quested the Circuit Court of Coffee County 

to investigate Magwood’s competency to 

1. The complete factual and procedural history 

of this case is reported in the opinions of the 

district court, Magwood v. Smith, 608 F.Supp. 

218, 219-20 (M.D.Ala.1985), and the Alabama 

Court of Criminal Appeals, Magwood v. State, 

426 So.2d 918, 920-23 (Ala.Crim.App.1982), 

aff'd, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 

1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983). 

2. Section 15-16-20 provides: 

If any person other than a minor in con- 

finement, under indictment, for want of bail 

for good behavior, for keeping the peace or 

appearing as a witness, in consequence of any 

summary conviction appears to be insane, the 

judge of the circuit court of the county where 

he is confined must institute a careful investi- 

stand trial. Pursuant to Ala.Code § 15- 

16-20, the court ordered two local physi- 

cians, Dr. Donald Crook and Dr. Bancroft 

Cooper, to examine Magwood. The doctors 

conducted their examinations on June 6, 

1979, and both found that Magwood was 

presently sane. Despite this report, the 

court ordered Magwood committed to Ala- 

bama’s Searcy Hospital for further tests by 

a three-member lunacy commission pursu- 

ant to Ala.Code § 15-16-22. On August 

16, 1979, the lunacy commission reported 

that Magwood suffered from paranoid 

schizophrenia, was presently insane and 

probably was insane at the time of the 

murder. The court then ordered Magwood 

to remain at Searcy Hospital for treatment 

until his competency was restored. 

In April of 1980, Magwood was declared 

competent and was returned to Coffee 

County for trial. On June 26, 1980, Mag- 

wood’s counsel moved the court for public 

funds to retain a consulting psychiatrist, 

but the court denied the request. On April 

15, 1981, the State of Alabama moved for a 

re-examination of Magwood’s mental condi- 

tion due to the passage of time since the 

last examination at Searcy Hospital. Mag- 

wood’s counsel acquiesed to the motion and 

the court ordered Dr. Douglas McKeown, a 

clinical psychologist, to examine Magwood. 

Dr. McKeown expressed his belief that al- 

though Magwood suffered from paranoid 

schizophrenia, he knew the difference be- 

tween right and wrong on the day of the 

murder. 

gation, call a respectable physician and call 

other credible witnesses; and, if he deems it 

necessary, he may call a jury, for which pur- 

pose he is empowered to compel attendance 

of witnesses and jurors. If it is satisfactorily 

proved that the person is insane, the judge 

may discharge him from imprisonment an 

order his safe custody and removal to the 

Alabama state hospitals, where he must re: 

main until restored to his right mind, and 

then, if the judge shall have so directed, the 

superintendent must inform the judge an 

sheriff, whereupon the person must be re 

manded to jail and criminal proceedings be 

resumed, or he must be otherwise discharge¢: 

i 

  

Magwood was t 
the Circuit Court { 
principal defense + 
lish insanity, Magw 
of the lunacy com 
tion testimony of 
psychiatrist and nj 
sion. In rebuttal. 
testimony of Dry 
McKeown. The Ju 
of capital murder 
death sentence? 
Ing, the court foun. 
porting the death | 
on-duty police offic 
mitigating factors: 
time of the murde 
significant prior 
court specifically 
two Proposed mitiyy 
lating to Magwood 
mental condition at { 
Based on this eval 
tenced Magwood to 
and sentence were \ 
Magwood v. State, 4 
App.1982), aff'd, 42 
denied, 462 U.S. 11 
L.Ed.2d 1355 (1983) 
error coram nobis p 
State, 449 So.24 126 
appeal denied, 453 

On July 20, 1983 
the United States | 

3. Magwood's trial wag 
During the first phasd 
guilt of a capital offe 
ducted a sentencing 
the jury at which the 
aggravating and mitj 
was after this hearij 
mended the death se 
tence, however, was 
Judge after an additio 
Own analysis of the ; 
circumstances, See 
11-4; Beck +. Stare, ) 
The particular death 

this case, Ala.Code § 
Pealed in 198}. It re 
Or Crimes committed 
1981 Ala.Acts ch. 178, 

4. Ala.Code § 13-11-2( 
tion of the death peng  



  

  
  

MAGWOOD v. SMITH 1441 
Cite as 791 F.2d 1438 (11th Cir. 1986) 

Magwood was tried in June of 1981 in 

the Circuit Court for Coffee County. His 

principal defense was insanity. To estab- 

lish insanity, Magwood relied on the report 

of the lunacy commission and the deposi- 

tion testimony of Dr. William Rudder, a 

psychiatrist and member of the commis- 

sion. In rebuttal, the State offered the 

testimony of Drs. Crook, Cooper and 

McKeown. The jury convicted Magwood 

of capital murder and recommended a 

death sentence? At the sentencing hear- 

ing, the court found one circumstance sup- 

porting the death penalty: murder of an 

on-duty police officer. It also found two 

mitigating factors: Magwood’s age at the 

time of the murder (27) and his lack of 

significant prior criminal history.> The 

court specifically considered and rejected 

two proposed mitigating circumstances re- 

lating to Magwood’s allegedly diminished 

mental condition at the time of the murder. 

Based on this evaluation, the court sen- 

tenced Magwood to death. This conviction 

and sentence were upheld on direct appeal, 

Magwood v. State, 426 So.2d 918 (Ala.Crim. 

App.1982), aff'd, 426 So.2d 929 (Ala.), cert. 

denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 

L.Ed.2d 1355 (1983), and in state writ of 

error coram nobis proceedings, Magwood v. 

State, 449 So.2d 1267 (Ala.Crim.App.), late 

appeal denied, 453 So0.2d 1349 (Ala.1984). 

On July 20, 1983, Magwood petitioned 
the United States District Court for the 

3. Magwood's trial was conducted in two phases. 
During the first phase, the jury determined his 
guilt of a capital offense. The court then con- 
ducted a sentencing hearing in the presence of 
the jury at which the parties offered evidence of 
aggravating and mitigating circumstances. It 

was after this hearing that the jury recom- 
mended the death sentence. The actual sen- 
tence, however, was determined by the trial 
judge after an additional hearing based on his 
own analysis of the aggravating and mitigating 
circumstances. See Ala.Code §§ 13-11-3, 13- 

11-4; Beck v. State, 396 So.2d 645 (Ala.1980). 

The particular death penalty statute at issue in 
this case, Ala.Code § 13-11-1 et seq., was re- 

pealed in 1981. It remains effective, however, 
for crimes committed while it was in force. See 
1981 Ala.Acts ch. 178, § 20. 

4. Ala.Code § 13-11-2(a)(5) permits the imposi- 
tion of the death penalty for “[t]he murder of 

Ke Ee eae Gr = FIN es fis 

ER RR Sr AONE 

Middle District of Alabama for a writ of 

habeas corpus pursuant to the provisions 

of 28 U.S.C. § 2254. The district court 

ordered a psychiatric evaluation of Mag- 

wood on July 13, 1984, which showed Mag- 

wood to be sane. Since Magwood did not 

request an evidentiary hearing, the district 

court then addressed the merits of Mag- 

wood’s petition based on the briefs and 

record of the case. The court rejected 

Magwood’s challenge to the guilt phase of 

his trial. The court, however, held that the 

state trial court committed clear error 

when it rejected the two proposed mitigat- 

ing factors concerning Magwood’s alleg- 

edly diminished mental condition at the 

time of the crime. Accordingly, the district 

court “remanded” the case to the Circuit 

Court of Coffee County for resentencing in 

light of these two now-established mitigat- 

ing factors. Magwood v. Smith, 608 

F.Supp. 218 (M.D.Ala.1985). Magwood ap- 

peals the denial of habeas corpus relief on 

eight of the grounds alleged and the State 

of Alabama cross-appeals the grant of the 

writ on the remaining ground. We will 

address each allegation of error in turn. 

I. Magwood’s Appeal 

[1] Magwood first contends that he was 

denied his sixth amendment right to coun- 

sel when Dr. Cooper and Dr. Crook exam- 

ined him, without notice to counsel, pursu- 

ant to a court order and later testified at 

any police officer, sheriff, deputy, state trooper 
or peace officer of any kind, or prison or jail 
guard while such prison or jail guard is on duty 
or because of some official or job-related act or 
performance of such officer or guard.” 

5. Ala.Code § 13-11-7 provides in relevant part: 

Mitigating circumstances shall be the follow- 
ing: 
(1) The defendant has no significant history 
of prior criminal activity; 
(2) The capital felony was committed while 

the defendant was under the influence of ex- 

treme mental or emotional disturbance; 

(6) The capacity of the defendant to appreci- 
ate the criminality of his conduct or to con- 
form his conduct to the requirements of law 
was substantially impaired; and 
(7) The age of the defendant at the time of the 
crime. 

  

   

  

   
   

  

   

    

   

  

    

  

   

      

   

  

   

    

   
   

  

   

          

   

  

   
   
   

              

   

      

   

                   



  

  

1442 791 FEDERAL REPORTER, 2d SERIES 

the trial to rebut Magwood’s insanity de- 

fense. The source of this argument is Es- 

telle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 

68 L.Ed.2d 359 (1981), in which the Su- 

preme Court of the United States held that 

an accused who had not raised the issue of 

his mental competency possesses fifth 

amendment and sixth amendment rights 

during a court-ordered psychiatric examina- 

tion if testimony by the examining psychia- 

trist is offered against the accused at trial. 

See also Cape v. Francis, 741 F.2d 1287, 

1292-97 (11th Cir.1984), cert. denied, — 

US. —, 106 S.Ct. 281, 88 L.Ed.2d 245 

(1985); Booker v. Wainwright, 703 F.2d 

1251, 1256-59 (11th Cir.), cert. denied, 464 

U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 

(1983); Spivey v. Zant, 661 F.2d 464, 473- 
76 (5th Cir.Unit B 1981),% cert. denied, 458 

U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 

(1982); Battie v. Estelle, 655 F.2d 692, 699- 

703 (5th Cir.1981).7 

Based on the relevant case law, we find 

no violation of Magwood’s sixth amend- 

ment rights.® A review of the chronology 

of events surrounding the examination es- 

tablishes this point. In an undated motion 

filed sometime in May, 1979, Magwood’s 

counsel asked the trial court “to institute 

an investigation as to the sanity of said 

Defendant under the provisions of Title 

15-16-20, Code of Alabama 1975.” Record 

on Appeal, Exhibit A, Vol. II, p. 381. The 

court granted this motion on May 31, 1979. 

In its order, the court set June 19, 1979, as 

the date for a hearing to determine Mag- 

wood’s competency and, pursuant to § 15- 

16-20, ordered Dr. Cooper and Dr. Crook to 

examine Magwood in the interim and to 

testify at the hearing concerning the re- 

6. In Stein v. Reynolds Securities, Inc., 667 F.2d 

33, 34 (11th Cir.1982), the Eleventh Circuit 

Court of Appeals adopted as precedent all deci- 
sions of Unit B of the former Fifth Circuit Court 
of Appeals. 

7. In Bonner v. City of Prichard, 661 F.2d 1206 
(11th Cir.1981) (en banc), this court adopted as 

precedent all decisions of the former Fifth Cir- 
cuit Court of Appeals decided prior to October 
1, 1981. 

8. The State of Alabama apparently concedes 
that Magwood’s sixth amendment rights had 

Nr ESS SES SOP BE SRR ES ERR SE ES A 

sults of their examination. Record on Ap- 

peal, Exhibit A, Vol. II, p. 382. The physi- 

cians examined Magwood six days later on 

June 6, 1979, and both testified at the June 

19, 1979, hearing. 

Magwood’s counsel requested the exami- 

nation and were aware of the time frame in 

which it would take place. As such, they 

had enough notice of the examination and 

ample opportunity to advise their client. 

This situation stands in marked contrast to 

Estelle v. Smith, in which counsel had no 

notice of the examination. See Estelle v. 

Smith, 451 U.S. at 458-59, 101 S.Ct. at 

1871, 68 L.Ed.2d at 366. 

Moreover, Magwood cannot claim sur- 

prise at the use of the physicians’ testimo- 

ny. The Alabama trial court ordered the 

June 6, 1979, examination to determine 

Magwood’s competency to stand trial. 

Both physicians limited their psychiatric 

testimony to this issue. Neither expressed 

an opinion about Magwood’s sanity at the 

time of Sheriff Grantham’s murder. This 

again varies from the facts in Estelle v. 

Smith, in which the psychiatrist examined 

Smith to determine his competency to stand 

trial, but testified about Smith’s future 

dangerousness. See Estelle v. Smith, 451 

U.S. at 470-71, 101 S.Ct. at 1877, 68 

L.Ed.2d at 374. See also Cape v. Francis, 
741 F.2d 1287, 1297 (11th Cir.1984), cert. 

denied, — U.S. —, 106 S.Ct. 281, 88 

L.Ed.2d 245 (1985) (resolution of Estelle v. 

Smith sixth amendment claim “turns upon 

the actual use of the testimony at trial”). 

As a last resort, Magwood requests this 

court to instigate a heightened inquiry be- 
cause the testimony of mental competency 

attached at the time of the examination and that 
the physicians’ testimony was used at a critical 

stage of the proceedings against Magwood. Se¢ 
Spivey v. Zant, 661 F.2d 464, 476 (5th Cir.Unit B 
1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 
73 L.Ed.2d 1374 (1982). Magwood does not 
raise a fifth amendment claim, apparently be- 
cause his right against self-incrimination Was 
waived when he placed his sanity in issue. S¢ 
Booker v. Wainwright, 703 F.2d 1251, 1257 (11th 
Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 
L.Ed.2d 266 (1983). 

SRS ERE LL BRE AR 

  

came not from a ps 

local physicians. 

might influence tl 

as experts, it has : 

of Magwood’s rig 

had sufficient not 

and were not surpi 

mony derived fr 

There was no sixth 
this instance. 

[2] Magwood n 

was denied effectiv 

when the state tri 

quest for public fu 

psychiatrist. In 4 

US. 68, 105 S.Ct 
(1985), the Supreme 

tance of a psychiatr 

lishing an insanity 

state has an obligat 

tion to provide an i 

“access to a compe] 

defendant’s “sanity 

fense is to be a sig 

470 US. at —, 
L.Ed.2d at 66. See 

wright, 770 F.2d ¢ 

1985); Bowden wv. 
(11th Cir.1985); Bla 

523, 529-33 (11th ( 

US. —, 106 S.Ct 

(1985). 

It was clear alm 

Magwood’s arrest th 

to be “a significant 

find, however, that A 

sufficient psychiatrid 

the requirements of 

ducted psychiatric 4 

wood before his trial 
of the state lunacy 
that Magwood was 

their examination ang 

at the time of the c 

was admitted in evid: 
mission’s report and 
deposition testimony 

9. Prior to the decision 
predecessor recognize 

tional right to psychiz 
propriate circumstan 
709 F.2d 643 (11th Ci  



MAGWOOD v. SMITH 1443 
Cite as 791 F.2d 1438 (11th Cir. 1986) 

came not from a psychiatrist, but from two 

local physicians. Although this distinction 

might influence the physicians’ credibility 

as experts, it has no effect on our analysis 

of Magwood’s rights. Magwood’s counsel 

had sufficient notice of the examination 

and were not surprised by the use of testi- 

mony derived from that examination. 

There was no sixth amendment violation in 

this instance. 

[2] Magwood next complains that he 

was denied effective assistance of counsel 

when the state trial court denied his re- 

quest for public funds to hire a consulting 

psychiatrist. In Ake wv. Oklahoma, 470 

US. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 

(1985), the Supreme Court noted the impor- 

tance of a psychiatrist's assistance in estab- 

lishing an insanity defense and held that a 

state has an obligation under the Constitu- 

tion to provide an indigent defendant with 

“access to a competent psychiatrist” if the 

defendant’s “sanity at the time of the of- 

fense is to be a significant factor at trial.” 

470 U.S. at —, 105 S.Ct. at 1097, 84 

L.Ed.2d at 66. See also Martin v. Wain- 

wright, 770 F.2d 918, 933-35 (11th Cir. 

1985); Bowden v. Kemp, 767 F.2d 761 

(11th Cir.1985); Blake v. Kemp, 758 F.2d 

523, 529-33 (11th Cir.), cert. denied, — 

U.S. —, 106 S.Ct. 374, 88 L.Ed.2d 367 

(1985). 

It was clear almost from the time of 

Magwood’s arrest that his sanity was likely 

to be “a significant factor at trial.” We 

find, however, that Magwood was provided 

sufficient psychiatric assistance to satisfy 

the requirements of Ake.® Six doctors con- 

ducted psychiatric examinations of Mag- 

wood before his trial. The three members 

of the state lunacy commission concluded 

that Magwood was insane at the time of 

their examination and probably was insane 

at the time of the crime. This conclusion 

was admitted in evidence through the com- 

mission’s report and through Dr. Rudder’s 

deposition testimony. Dr. McKeown also 

9. Prior to the decision in Ake, this court and its 

predecessor recognized an accused's constitu- 

tional right to psychiatric assistance under ap- 

propriate circumstances. See Finney v. Zant, 

709 F.2d 643 (11th Cir.1983); Beavers v. Balk- 

testified about Magwood’s mental condition 

at the time of the crime. Although he 

believed that Magwood suffered from para- 

noid schizophrenia on March 1, 1979, he 

concluded that Magwood knew the differ- 

ence between right and wrong. Thus, four 

experts gave opinions concerning Mag- 

wood’s mental condition on the date of the 

crime and three experts gave evidence 

highly favorable to Magwood’s insanity de- 

fense. In contrast, the defendant in Ake ». 

Oklahoma was examined by several psy- 

chiatrists to determine his competency to 

stand trial, but none of these experts testi- 

fied about his mental condition at the time 

of the crime. As such, there was no expert 

testimony supporting or contradicting 

Ake’s insanity defense. See Ake, 470 U.S. 

at ——, 105 S.Ct. at 1091, 84 L.Ed.2d at 5 

Magwood clearly was provided with “ac- 

cess to a competent psychiatrist” and, as 

such, was able to present a viable insanity 

defense. Although additional psychiatric 

testimony might have been desirable, it 

was not required under the Constitution. 

As the Supreme Court noted in Ake, an 

indigent defendant has no “constitutional 

right to choose a psychiatrist of his person- 

al liking or to receive funds to hire his own. 

Our concern is that the indigent defendant 

have access to a competent psychiatrist for 

the purpose we have discussed....” 470 

U.S. at —, 105 S.Ct. 1097, 84 L.Ed.2d at 

66. See also Martin v. Wainwright, 770 

F.2d 918, 934-35 (11th Cir.1985); Finney v. 

Zant, 709 F.2d 643, 645 (11th Cir.1983). 

[3] In his third allegation of error, Mag- 

wood charges that Alabama imposes the 

death penalty in a racially discriminatory 

manner. In support of this argument, he 

cites statistics that a majority of pre-Fur- 

man executions in Alabama involved 

blacks and that a majority of 1983 death 

row inmates were black. Magwood did not 

request an evidentiary hearing on this is- 

sue in the district court. 

com, 636 F.2d 114 (5th Cir.Unit B 1981); United 

States v. Edwards, 488 F.2d 1154 (5th Cir.1974); 

McCollum v. Bush, 344 F.2d 672 (5th Cir.1965). 

As such, we need not address the State’s conten- 

tion that Ake does not have retroactive effect.   
 



  

be
v 

J 

laboratory. 

have, 

0)
 

0 

Exhibit 

the sion at 

A 

  

Rumber 23, 

  

PARKERS 

Would you give us your name, please, sir? 

Kelly Fite, 

And who 40 you work for, sir? 

1 work for the Ceorgia State Crime Laboratory. 

ind what is your job duty there, sir? 

I ar in charge of the firearms section of the crime 

ind whet does that consist of? 

Well, 1 examine weapons and projectiles and report 

Court. 

sir. How long have you worked for ther, 

And what type of educational qualifications do you 

1 have 8 B.S. Degree in chemistry from Ferry 

And have you testified a nunber of times in court? 

Yes, sir, I have, : 

Now, 1 show you what has been marked as State's 

sir, and ask if that came into your posses- 

crime lab? Rio. 

did. The first tire I saw this iter, 

-4le- i 

 



  

    

State's Exhibit Rumber 23, was on May the 15th of this year 

when it was given to me by ir, Louis Cuendet and Jim Howard 

of the crime laboratory. 

& Where is Mr, Howard today, if you know, sir? 

A he ie on leave, emergency leave, His father died. 

Q All right, sir. Now, did you examine Etate's 

Exhibit Kumber 237 

A Yes, sir, 1 did. 

{ and how Gid you examine it, sir? 

) 3 well, I examined it microscopically to determine 

what type weapon it wag fired from and the caliber. 

Q And how are you able to make such determinations 

A Well, I measured the bullet and it showed it was 

approximately .357 inches in diemeter, which indicated to me 

that it was probably fired from a ,38 Special or .357 Megnum 

revolver, I then locked at the lands and grooves structure 

impressed on the bullet by the bore of the weapon it was 

fired from. It shows gix grooves with a right-hand twist. 

The grooves on this bullet are epproximately .1125 inches, 

which indicates to me that it was probably fired from a 

Rossi .38 Special revolver. 

{ Why a Rossi, sir? 38: 

A Well, that is the only weapon that hes a land 

po
rn
 

jidth of this dimension, 

-413=- 

 



    

Q All right. How 

A There are 

caliber, 

Q And are you 

F 2S Most of the 

Q And 

twist end lands and grooves? 

several hundred 

familiar with 

a Rossel is the only one that has 

  

many type .38's are there, sir? 

makes of weapons, .38 

all of ther? 

m, yes, sir 

that type cof 

A Yes, it ig, that I heave geen. 

G Bow many times have you examined bullets at the 

Crire 

worked 

corning laboratory eince 

than 12,G00 firearms. 

Number § 

pore than 

there in 

16,0600 cases at the Crime 

1868, I have exanined nore 

you what has Leen 

{i€ that came into vour 

tire I saw State's Exhibit Humber 

> was on May the léth of this year when Detective Jowers brought 

it to the crime laboratory. : 

#) All right, sir. And éid you examine that exhibit? 

A Yes, it was requested by Detective Jowers that I 

examine State's Exhibit Number 6 and conpare it with State! 

Exhibit 

same weapon, and I did nake 

the lands and grooves 

ber 23 and determine if they 

structure and 

Were: fired from the 

such a comparis son and noted that 

the small gross and 

-414~ 

 



  

    

microscopic similerities were identical in both State's 

Exhibit humber 5 and State's Exhibit 23, 

Q State's Exhibit 5 is fairly mutilated, is it not? 

A Yes, the lead core is separated from the metal 

jacket; however, the bearing surface of the missile is intact 

and it is in good condition for comparison purposes, 

C In your opinicn, was State's Exhibit Kumber 5 also 

fired from & .3E Special Fossil? 

i Yes, it was. 

C he same Rossi that fired State's Exhibit Number 237 

i Yeg, 81r. 

L: Sir, did you come into possession of Officer 

Schlatt's shirt at the crime lab? 

kh Yes, sir, 1 4id. 

A, £ir, 1 show you what has been marked as State's 

fxhibit Number 24 and ask if you can identify that, gir 

A, I identify State's Exhibit Rumber 24 as & metsl 

;illbox end it contains fibers which were taken from Cfficer 

Schlatt'’s shirt at the criwpe laboratory. 

& Was that done by you, sir? 

F \ no, sir, it wasn't. % KY
 

GQ liow, did you examine those fibers? 

F Ko, sir, 1 &id note- 

H 

C Who €id that, sir?- 

A Jip Howard. 

 



      

®: All right, sir. How about State's Exhibit Humber 

25, have you seen that before? 

A Yes, sir, 1 have seen it, It's a metal pillbox 

and it contains blue fibers that were removed from State's 

Exhibit 23 by Jim Howard in Py presence. 

Tak COURT: What is the number of the last exhipit? 

I'm BOYXXIY. 

THE WITNESS: State's Exhibit hunmber 25 is a metal 

pillbox. 1t contains blue fibers which Jim howard removed 

from Gtate's Exhibit kunmber 23 in ny presence, State's 

Exhibit Rumber 23 being a +38 caliper metal jacketed 

3 Ti. bel x TS Jug ne on y { ~ Ts 4 4 Eo [al SIE SP 

§) (Ey Mr, Parker) You say it contained, Stat 

Exhibit Kumber 2%, what is fabrics repoved from State's Exhibit 

Number £37 

A Yes, gir. 

¢ And that was done in your presence, sir? 

kh Yes, sir, it was. 

C kné wage that examined Dy you? 

A Ko, sir, it was noi. 

u Who was that examined by? 

A Jim Howard. 

Q sir, you say you did examine Officer Schlatt's 

shirt at the crime lab? 

“A Yes, sir, I did, 

-41l6- 

 



      

Q Sir, I ask you te look at Stete's Exhibit Rumber 

6 and 7 and ask if you have seen those two or seen that {tem 

before, sir? 

A Yes, sir, this appears to be the victim's shirt. 

The torn area on the pocket appears to be the same as the shirt 

1 turned over to the Court this morning. 

Q You brouyht that in here with vou this morning? 

A Yes, Sir. 

C low, have you examined that torn place in that 

shirt, sir? 

I Yes, sir, I have 

Q And have vou ever studied bullets being deflected, 

6ir? 

A Yes, sir, I have. 

¥ And 1s this a common occurrence? 

A No, sir. It's not common, no, sir. 

o what can cause a bullet to deflect? 

A Usually when a bullet strikes something harder than 

Q Could it strike an object at an angle that ig not as 

hard as it is and still change direotions? : 

ee - A Yes, sir, it's according to the angle, The smaller 

the angle, the greater the chance of cGeflection. 

C 1 don't follow you. 

yd Well, if a bullet struck this top here at ninety 

4 ~417- 

 



  

    

degrees, it probably wouldn't be deflected, but if {t gtruck 

it at a ten degree éengle, it's & possibility {it would be 

deflected, 

Q You are sayinc ten degrees horizonal rethexr than » 

diagonal? 

A Yes, sir. 

€ Are vou saying the torn place on Officer Schlatt's 

shirt could have been caused by & bullet that ricocheted? 

A The smooth hele and the regyged exit hole 

to me that there was something to deflect the bullet 

pocket of the shirt. 

Q would that be unusual, sir? 

FA Yes, sir, it would be, 

Q But it 1g still possible? 

A Yes, sir. 

i. Hr. Fite, is it your opinion, after having 

the officer's shirt, that this is what happened concerning 

torn place in the pocket, that a bullet did ricochet 

A Yes, it is, 

ME. PAREER: Your witness, 

BY MR. TURKER: 

“ 

indicate 

{ - _Was-the bullet that vou all found in the chair or 

a & on the floor mutilated in any way, the one that defl ected? 

A Yes, sir, it is. The nose of the bullet shows an 

-gll~- = 

  

” 2 Th 8 a 

examined



    

imprint of some object, 

Oo All right, sir, 

tc study and test the bullet? 

A ho, sir, 

metal jacketed bullet 

Q All right. Bow, did 1 

that your conclusion, a 38 Rossi probably fired 

bullets that you examined? 

oid that make 

The mutilation 

  

it more difficult 

is on the nose of this 

in the lead portion cf it. 

understand you to say, is 

the two 

A XeE, Sir. 

Q Wny do you use the word probably? 

A well, I haven't examined every weapon ever made, but 

I have my file and the F.E.I.'s file which we have on & computer, 

that is the only weapon that it kicked out. 

MRe TUREER: Thank you. 

MR. PARKER: May this witness be excused? 

ath 3od at HE COURT: Any reason 

of how late Your Honor plans 

ThE COURT: About five 

EP. PARKER: The State 

- 

having been previously duly sworn, 

testified as follows - 

why he shouldn't? 

Fite, 

an indication 

to run this evening? 

o'clock tonight. 

recalls Detective Jowers, 

was recalled and further 

 



  

INSERT A: p.15 of Mcy. St. Habeas 

[no paragraph] Fite stated that the bullets were probably fired 

bya .38 Rossi, "the only one that has that type of twist and 

lands and grooves." Tr.T. 414. At cross, defense counsel asked 

what Fite meant by probably, and Fite replied, "Well, I haven’t 

examined every weapon ever made, but I have my file and the 

F.B.I.’s file which we have on computer, that is the only weapon 

which it kicked out." Tr.T. 419. 

The murder weapon was not recovered, but the state sought to 

establish that Mr. McCleskey had been carrying a .38 Rossi on the 

day of the crime. Despite evidence that Mr. McCleskey’s co- 

defendant, Ben Wright, might have been carrying the .38 Rossi, 

the jury convicted the Defendant of murder with malice. As two 

Jurors have affided, the dispute whether Mr. McCleskey was the 

triggerman was the central issue in jury deliberations, both at 

the guilt and sentencing phases. Affadavits of at 
  

and at . 
  

The failure to appoint an expert hampered the Defendant’s 

ability to cross-examine Fite and develop independent exculpatory 

evidence. This failure thus seriously prejudiced the Defendant. 

In a deposition given after trial, Fite related a very different 

analysis than what he had told the jury. Fite admitted that two 

other types of handguns could have left the markings Fite 

observed on the bullets. Fite Deposition at 6-7. At trial, Fite 

had stated that even the F.B.I. did not have a record of another 

type of gun which could have fired the shots which killed the 

 



  

victim. 

If the defense had a ballistics expert, the expert certainly 

could have provided at least as much impeachment material as Fite 

himself later did. However, at trial Mr. McCleskey was denied 

the expert assistance he needed to challenge Fite’s inaccurate 

claim that only a .38 Rossi could have fired the fatal shots. 

Apart from the testimony of Ben Wright, a co-defendant, and 

Ophie Evans, a jailhouse informer, the testimony of Fite was the 

most critical part of the state’s case linking McCleskey to the 

murder weapon. The credibility of Wright and Evans is highly 

suspect. It is reasonably probable that Fite’s definitive 

statement at trial, which he contradicted afterwards, that only a 

.38 Rossi could be the murder weapon caused the jury to reach the 

wrong result. The denial of expert assistance resulted in 

Fite’s testimony being strengthened rather than destroyed at 

cross, and thus led to Mr. McCleskey’s conviction and death 

sentence. 

 



  

This text should be incorporated in McClesky’s state habeas 
petition draft. EMC, 6-4-87. 

4 Ake V. Oklahoma and the Fourteenth Amendment Right to the 
Appointment of Experts for Criminal Defendants. 
  

i) The Ake Standard. 

  

In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court 

held that the Fourteenth Amendment can compel, in certain 

circumstances, a state to appoint expert witnesses for an 

indigent criminal defendant. Meaningful access to justice for 

the poor requires "an adequate opportunity to present their 

claims fairly within the adversary system." Id at 77, quoting 

Ross v. Moffitt, 417 U.S. 600, 612 (1974).   

In Ake, the trial court denied the defendant’s request to 

obtain a psychiatrist to determine Ake’s sanity at the time of 

the offense despite clear signs of mental illness in the 

defendant. No expert at trial could speak to Ake’s sanity at the 

time of the offense, and Ake was convicted of murder and 

sentenced to death. Ake claimed that the denial of expert 

psychiatric assistance left him without meaningful access to 

Justice on account of his poverty. 

The Court used a three factor test to determine whether Ake 

was entitled to the appointment of an expert under the Due 

Process Clause of the Fourteenth Amendment. The three factors 

are: 

1) the private interest affected by the state action: 

2) the governmental interest affected if the safeguard is 
provided; and 

3) the probable value of the additional procedural safeguard 

 



sought and the risk of erroneous deprivation if it is not 
provided. Id at 77. 

Much of the Court’s analysis using these three factors in 

Ake is applicable in this instance. Where the state attempts to 

deprive an individual of life or liberty, the individual’s 

interest is uniquely compelling. Id at 78. The state can have 

two interests: finance and prevailing at trial. However, the 

financial burden must be great to outweigh the private interest, 

and the state’s interest in prevailing at trial is limited by its 

interest in a reliable verdict. Id at 79. 

The probable value of the safeguard and risk of erroneous 

deprivation without it is high where no psychiatrist is provided 

and the defendant’s mental state is put at issue. Jurors have 

little knowledge of mental illness besides what experts at trial 

can give them. Id at 31. Therefore, the risk of inaccurate 

determinations of sanity is high. The third factor swings 

sharply in the defendant’s favor, and the state interest in 

prevailing at trial is not applicable since reliability of the 

verdict is called into question. Id at 82-83. With this set of 

circumstances, the state must provide the procedural safeguard, 

i.e. appoint experts to assist the defense, to stay within the 

bounds of due process. 

In Mr. McCleskey’s case, application of this test closely 

follows that in Ake, and it ends in the same result. Mr. 

McCleskey’s interest in his life is as compelling as Ake’s 

interest. The state’s financial interest in the result is 

similar; states will not be staggered by the financial burden 

of appointing experts to defendants in Mr. McCleskey’s position.  



  

Many states and the federal government already provide defendants 

the right to the appointment of experts by statute. Id at 79-80. 

Further, it stretches credibility for the state to provide 

numerous experts for the prosecution, but to claim inablility to 

pay when defendants ask for some. The state’s interest in 

prevailing at trial is limited here, as in Ake, by its interest 

in a reliable verdict. 

The probable value of the expert witness sought by Mr. 

McCleskey and the risk of error without a ballistics expert is at 

least as great as that of the psychiatrist in Ake. The central 

issue in this case was whether Mr. McCleskey was the triggerman 

in the crime. The only certain evidence which the state 

presented in that regard was the ballistic expert’s claim that a 

.38 Rossi was the type of gun used to kill the victim, connected 

with less clear evidence that the Defendant was carrying a .38 

Rossi that day. The defense was deprived of an opportunity to 

cross-examine this expert; that an effective cross could have 

occurred with expert assistance is shown by the testifying 

expert’s post-trial statements which effectively contradicted his 

testimony. Jurors are as unlikely to be familiar with 

ballistics evidence as psychiatric evidence. They are as 

dependent on ballistic expert testimony as psychiatric expert 

testimony. The risk of erroneous deprivation of life when the 

state plans to link the defendant with the crime by ballistics 

evidence is great without the provision of an expert to the 

defense, and in fact error occurred in this case. The denial of 

Mr. McCleskey’s request for expert assistance rendered him 

 



  

incapable of fairly presenting his defense within the adversary 

system in violation of the Due Process Clause of the Fourteenth 

Amendment. 

ii. Caldwell and the Showing Necessary to Trigger the Right to 
the Appointment of Experts. 
  

In a footnote in Caldwell v. Mississippi, 86 L.Ed.2d 231   

(1985), the Supreme Court rejected Caldwell’s claim that the 

refusal of Mississippi to appoint various experts 

unconstitutionally deprived him of the due process of law. The 

Court rejected tha claim because Caldwell, in the face of 

Mississippi law requiring a showing of reasonableness, had not 

made any showing. It appears from Ake itself that some showing 

is needed since there is no question of reliablity or risk of 

erroneous deprivation where no factual issue exists. But see 

  

Coleman v. Brown, 802 F.2d 1237 (10th Cir. 1986) (where defendant 

failed to show federal habeas court reasons for appointment of   

experts by a state trial court, Ake showing not met). 

Petitioner contends that a standard of reasonableness is the 

correct standard for the showing necessary at the trial court, 

and that the Petitioner met that standard. Law on this point is 

not settled. In Vassar v. Solem, 763 F.2d 975 (8th Cir. 1985),   

the Eighth Circuit affirmed the denial of a habeas writ attacking 

Vassar’s conviction in state court for arson and murder. 

Vassar’s attorney asked for a psychologist to help show that a 

statement by the defendant was involuntarily given, but the trial 

court refused because the defendant did not adequately state why 

the expert was necessary. The Eighth Circuit held: 

 



  

A defendant’s request for the use of an expert witness 
in preparation of his defense must be measured by a 
standard of reasonableness and should be allowed when 
the facts reasonably suggest that use of an expert 
would be beneficial to the accused in preparing his 
case. United States v. Schultz, 431 F.2d 907, 911 (8th 
Cir. 1970); cf. Ake v. Oklahoma, 13 U.8. 0088 .,0k, 
1087, 1097, 84 L.Ed.2d 53 (1985) ("When the defendant is 
able to make an ex parte threshold showing to the 
trial court that his sanity is 1ikely to be a 
significant factor in his defense, the need for the 
assistance of a psychiatrist is readily apparent.") 

  

  

Id at 977. The court went on to find that Vassar’s request was 

not a reasonable one because the trial court had correctly 

determined that Vassar’s confession was voluntary. 

The rule in Vassar follows the more settled standards for 

appointment of experts in federal cases, which appointments are 

based on 18 United States Code section 3006A(e). Federal courts 

appoint experts under this statute when they find that the 

circumstances are such that a reasonable attorney would engage 

such services for clients with independent means to pay for them 

and when the underlying facts reasonably suggest that the 

defendant has a plausible defense. U.S. v. Alden, 767 F.2d 314   

(7th Cir. : 1984). A number of cases hold that when the 

government’s case rests heavily on experts, the court must grant 

the defendant’s request for his own. See e.q. U.S. v. Patterson, 
  

724 F.2d 1128 (5th Cir. 1984) and cases cited therein. 

Mr. McCleskey has met the standard of reasonableness. His 

defense that he was not the triggerman was plausible, but needed 

expert assistance to bolster it in the face of government use of 

a ballistics expert. The Patterson cases support McCleskey’s   

claim. In a situation where the government relies on experts to 

prove guilt, it is reasonable to provide the defense with the 

 



  

tools to refute the testimony where refutation is possible. That 

ballistics analysis is open to varying interpretation is shown 

here by the state witness’s inconsistencies between his testimony 

and post-trial statement. In the circumstances of this case, the 

trial court should have provided the Defendant with the requested 

experts because the circumstances reasonaply suggested the need. 

Although the reasonableness standard is better known and 

widely used, at least one circuit has suggested a stricter test. 

In Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987) (en banc), a badly   

divided Eleventh Circuit held, inter alia, that Moore was not   

entitled to the appointment of experts.l Although a majority of 

Judges signed on Tjoflat’s opinion, it is clear that at least 

three of them disagree with Tjoflat’s conclusion that Moore’s 

claim failed because of Moore’s showing in the trial court. It 

is apparent that a majority of the Eleventh Circuit believes that 

Ake applies to non-psychiatric experts and that a different 

majority believes the showing required, if Ake does include non- 

psychiatric experts, is the flexible, reasonable standard 

described in Johnson’s dissent. The Eleventh Circuit in Moore is 

  

A Judge Tjoflat wrote the majority opinion. Judges Vance, 
Roney, Fay, Hill, Edmondson, and Henderson joined his Ake 
section, making a total of seven judges of the thirteen hearing 
the case. Judge Johnson wrote the dissent and was joined in his 
Ake section by the remaining five judges. However, Hill, joined 
by Roney, Fay, Edmondson, and Henderson wrote separately. 
Tjoflat’s opinion assumed Moore had a right to the appointment of 
experts, but that he failed to make the strict showing Tjoflat 
requires. Hill’s opinion states that Moore’s showing was 
sufficient, but that Ake applies to psychiatric experts only. 
Hill does not state whether the standard of Tjoflat is wrong or 
whether Hill believes Moore met the higher standard. Roney and 
Fay also wrote separately to state they approved of both 
Tjoflat’s and Hill’s reasoning. 

 



  

too badly divided to use the case as authority. 

In any event, the standard suggested by Judge Tjoflat is an 

overly restrictive reading of the Supreme Court’s statements on 

the matter. While Ake makes clear that criminal defendants do 

not have an automatic right to any expert they request, the Court 

certainly does not require the extensive showing required by 

Judge Tjoflat. Tjoflat insists that where a defendant wants to 

use an expert to challenge the government’s proof, the defendant 

must inform the court of the nature of the prosecutor’s case, the 

evidence that links the defendant to the crime, and how the 

expert would be useful to the defendant. 

This showing is virtually impossible to meet. The 

defendant may not have access to the facts which the prosecutor 

has. In Moore, the court suggests that the state may have to 

change its discovery rules to allow the defendant this access. 

Moore, 809 F.2d at 712, n.10. This suggestion turns the defense 

request for an expert into the tail which wags the dog. The 

majority is suggesting a major reform in state discovery rules in 

order not to force state courts to use a rule of reasonableness 

in appointment of experts. Furthermore, even if the defense has 

access to all the data which the prosecutor has, it is likely 

defense counsel will not know exactly how the state plans to use 

it. If defense counsel is entirely ignorant of the areas of 

expertise involved, it is unclear how the counsel can explain to 

the court that which the counsel seeks assistance to understand. 

The rule of reasonableness in judging appointment of experts 

is both better settled and more sensible. It does not require 

 



  

appointment of all experts requested not does it create an 

impossible showing for the defendant to make. The rule fulfills 

the purposes of the Supreme Court described in Ake: to allow 

meaningful access to justice for the poor. This court should 

adopt the rule and grant Mr. McCleskey relief to remedy the 

unconstitutional deprivation suffered by the defendant when this 

court mistakenly denied Mr. McCleskey’s request for expert 

assistance. 

 



702 

Carzell MOORE, Petitioner-Appellant, 

Vv. 

Ralph KEMP, Warden, Georgia 

Diagnostic and Classification 

Center, Respondent-Appellee. 

No. 82-8683. 

United States Court of Appeals, 

Eleventh Circuit. 

Jan. 21, 1987. 

Petitioner sought federal habeas cor- 

pus relief after his convictions for rape and 

murder were affirmed on appeal. The 

United States District Court for the Middle 

District of Georgia, No. C81-0073, Wilbur 

D. Owens, Jr., Chief Judge, denied relief 

without holding evidentiary hearing. Peti- 

tioner appealed. The Court of Appeals af- 

firmed, 722 F.2d 640. On rehearing en 

banc, the Court of Appeals, Tjoflat, Circuit 

Judge, held that: (1) petitioner was not 

entitled to appointment of expert witness 

to review tests performed by state crime 

lab on various items of evidence; (2) peti- 

tioner was entitled to evidentiary hearing 

on his claim that prosecutor deliberately 

withheld material portions of key prosecu- 

tion witness’ criminal record; and (3) in- 

structions at sentencing phase did not 

clearly and explicitly inform jury of its 

option to impose life sentence if it found 

existence of statutory aggravating circum- 

stance. 

Affirmed in part, reversed in part, and 

remanded with instructions. 

Roney, Chief Judge, filed opinion con- 

curring in part, specially concurring in 

part, and dissenting in part, in which Fay, 

Circuit Judge, joined. 

Godbold, Circuit Judge, filed opinion 

dissenting in part and concurring in part. 

Hill, Circuit Judge, filed opinion con- 

curring in part and dissenting in part, in 

which Roney, Chief Judge, and Fay and 

Edmondson, Circuit Judges, and 

Henderson, Senior Circuit Judge, joined. 

809 FEDERAL REPORTER, 2d SERIES 

Johnson, Circuit Judge, filed opinion 

concurring in part and dissenting in part, in 

which Kravitch and Hatchett, Circuit 

Judges, joined, and in which Godbold, 

Anderson and Clark, Circuit Judges, joined 

in part. 

1. Criminal Law €641.6(3) 

State need not provide indigent defend- 

ants all assistance their wealthier counter- 

parts might buy; rather, fundamental fair- 

ness requires that state not deny them 

adequate opportunity to present their 

claims fairly within adversary system. 

U.S.C.A. Const.Amend. 14. 

2. Criminal Law &641.6(3), 1077.2(1) 

Among tools state must not deny indi- 

gent defendant in criminal proceeding are 

assistance of counsel at trial, and on de- 

fendant’s first direct appeal as of right, 

trial transcript, if it is necessary to decision 

on the merits of the appeal; these tools are 

necessary to insure that indigent defend- 

ant’s access to justice is meaningful. U.S. 

C.A. Const.Amend. 14. 

3. Constitutional Law ¢=268.2(3) 

Due process does not require govern- 

ment automatically to provide indigent de- 

fendants with expert assistance upon de- 

mand; rather, defendant must show trial 

court that there exists reasonable probabili- 

ty both that expert would be of assistance 

to defense and that denial of expert assist- 

ance would result in fundamentally unfair 

trial. U.S.C.A. Const. Amend. 14. 

4. Costs ¢=302.2(2) 

If indigent defendant wants expert to 

assist his attorney in confronting prosecu- 

tion’s proof, by preparing counsel to cross- 

examine prosecution’s experts or by provid- 

ing rebuttal testimony, he must inform 

court of nature of prosecution’s case and 

how requested expert would be useful; at 

the very least, he must inform trial court 

about nature of crime and evidence linking 

him to the crime. U.S.C.A. Const. Amend. 
14.   

  

 



filed opinion 
ng in part, in 

ett, Circuit 

ch Godbold, 
dges, joined 

igent defend- 

hier counter- 

amental fair- 

deny them 

resent their 

ary system. 

1077.2(1) 

ot deny indi- 

oceeding are 
| and on de- 

as of right, 

y to decision 

ese tools are 

ent defend- 

ingful. U.S. 

(3) 

uire govern- 

indigent de- 

ce upon de- 

t show trial 

ble probabili- 

f assistance 

xpert assist- 

tally unfair 

4. 

ts expert to 

ing prosecu- 

sel to cross- 

r by provid- 

ust inform 

\'s case and 

e useful; at 

trial court 

ence linking 

bnst.Amend. 

MOORE v. KEMP 703 
Cite as 809 F.2d 702 (11th Cir. 1987) 

5. Costs 302.4 

If defendant desires appointment of 

expert so that he can present affirmative 

defense, such as insanity, he must demon- 

strate substantial basis for the defense. 

U.S.C.A. Const.Amend. 14. 

6. Costs ¢=302.2(2) 

If indigent defendant requests appoint 

ment of expert, defense counsel is obligat- 

ed to inform himself about specific scien- 

tific area in question and to provide court 

with as much information as possible con- 

cerning usefulness of requested expert to 

defense’s case. U.S.C.A. Const.Amend. 14. 

7. Costs ¢=302.2(2) 

Indigent defendant was not entitled to 

appointment of expert witness to review 

tests performed by state crime lab on vari- 

ous items of evidence, including defend- 

ant’s blood, saliva and hair samples; de- 

fendant failed to indicate connection be- 

tween samples and crimes in question, 

what tests crime lab may have conducted 

on those samples, or what kind of expert he 

desired or role expert would play. U.S. 

C.A. Const.Amend. 14. 

8. Criminal Law €&=700(2) 

Prosecutor has duty to provide accused 

with all evidence in state’s possession mate- 

rially favorable to accused's defense. 

9. Criminal Law &=700(4), 919(1) 

Prosecutor's failure to produce evi 

dence in state’s possession materially fa- 

vorable to accused’s defense may necessi- 

tate retrial irrespective of good faith or bad 

faith of prosecution; when defendant's 

guilt or innocence may turn on reliability of 

witness, prosecutor's nondisclosure of evi- 

dence affecting credibility of witness falls 

within this general rule. 

10. Criminal Law €=700(4) 

Prosecutor has duty to disclose evi- 

dence of any promises made by state to 

prosecution witness in exchange for his 

testimony; this is especially true when tes- 

timony of witness is essential to state's 

case. 

11. Habeas Corpus &90.2(8) 

Petitioner was entitled to evidentiary 

hearing on his claim that prosecutor delib- 

erately withheld material portions of key 

prosecution witness’ criminal record which 

suggested that witness had either been giv- 

en immunity or thought he had been given 

immunity from prosecution in exchange for 

his testimony; defense counsel was not 

informed that witness was on probation at 

time he testified, and witness admitted en- 

gaging in conduct which warranted revoca- 

tion of his probation yet was not punished 

for such conduct. 28 U.S.C.A. § 2254(d). 

12. Homicide &=311 

Instructions to jury at sentencing 

phase of defendant's murder trial did not 

clearly and explicitly inform jury of its 

option to impose life sentence if it found 

existence of statutory aggravating circum- 

stance, as required by Georgia law; al- 

though instruction described mitigating cir- 

cumstances and allowed jury to consider all 

of the evidence presented, instruction in- 

formed jury that it was required to return 

death sentence if it found aggravating cir- 

cumstance. 

13. Homicide 354 

Testimony of victim's father regarding 

victim's good character and future plans 

was inadmissible in sentencing hearing of 

murder prosecution to rebut inference that 

victim was willing participant in robbery 

which occurred prior to her murder, where 

defendant raised alibi defense and testified 

that he was not involved in robbery. O.C. 

G.A. § 17-10-30(b)(2). 

Robert E. Morin, Rockville, Stephen B. 

Bright, Atlanta, Ga., for petitioner-appel- 

lant. 

William B. Hill, Jr., Susan Boleyn, Daryl 

A. Robinson, Asst. Attys. Gen., Atlanta, 

Ga., for respondent-appellee. 

Appeal from the United States District 

Court for the Middle District of Georgia. 

‘Before RONEY, Chief Judge, 

GODBOLD, TJOFLAT, HILL, FAY,   

 



    

704 

VANCE, KRAVITCH, JOHNSON, 
HATCHETT, ANDERSON, CLARK, and 
EDMONDSON *, Circuit Judges, and 
HENDERSON, ** Senior Circuit Judge. 

TJOFLAT, Circuit Judge: *** 

L 

A. 
Shortly before 7:00 p.m. on December 12, 

1976, several patrons of the Majik Market 
convenience store in Cochran, Georgia, 
found the store open and unattended. The 
store’s cash register and safe were open 
and empty, and the store's cashier, eigh- 
teen-year-old Teresa Carol Allen, was miss- 
ing. Her automobile had also vanished. 
Two days later, Ms. Allen’s body was dis- 
covered over seventy miles northwest of 
Cochran in Monroe County, Georgia. 
Found near her body were footprints, two 
30.06 caliber cartridge hulls, a 30.06 caliber 
metal jacket of a bullet, tire tracks, a nylon 
stocking, a pair of leather work gloves, and 
parts of Ms. Allen’s flesh, teeth, and bone. 

Police immediately began a search for 
Ms. Allen’s automobile. Approximately 
one month later, the automobile was dis- 
covered in South Carolina in the possession 
of an escaped convict, twenty-year-old 
Roosevelt Green; Green had been arrested 
for an unrelated convenience store robbery. 
From jail Green made a telephone call to 
the mother of an acquaintance, Thomas 
Pasby, and stated, “Tell Carzell Moore I'm 
in jail in South Carolina.” The Georgia law 
enforcement officials investigating Ms. Al- 
len’s murder learned of this telephone call 
and questioned a number of persons in 
Cochran about possible links between 
Green and Moore. They discovered that 
Green and Moore met and became friends 
while they were in prison in Alabama, that 
* EDMONDSON, Circuit Judge, became a member 

of the court after this appeal had been orally 
argued but has participated in this decision after 
listening to a recording of oral argument. See 
11th Cir.R. 24(g). 

** HENDERSON, Senior Circuit Judge, has elect- 
ed to participate in further proceedings in this 
matter pursuant to 28 U.S.C. § 46(c). 

*** RONEY, Chief Judge, GODBOLD, HILL, FAY, 
VANCE, KRAVITCH, JOHNSON, HATCHETT, 
ANDERSON, CLARK, and EDMONDSON, Cir- 

809 FEDERAL REPORTER, 2d SERIES 

on December 11, 1976, after escaping from 
prison in late 1975, Green arrived in Coch- 
ran asking for Moore, and that Moore had 
introduced Green to a number of friends in 
Cochran, among them Thomas Pasby. On 
January 10, 1977, Carzell Moore was ar- 
rested and was placed in the Bleckley 
County jail, located in Cochran. Five days 
later, authorities obtained a search warrant 
for Moore's home and seized several items, 
including one pair of brown “Hush Puppy” 
shoes and a gold towel. These items were 
submitted to the Georgia crime lab for 
analysis. 

On February 15, 1977, a grand jury in 
Monroe County, Georgia, returned an in- 
dictment charging Moore and Green with 
the rape and first-degree murder of Ms. 
Allen. Green escaped from the Monroe 
County jail prior to trial and was not recap- 
tured for several years. As a result, in 
June 1977, Moore was tried separately be- 
fore a jury in the Superior Court of Monroe 
County, Georgia. The key witness for the 
State was thirty-year-old Thomas Pasby. 
Pasby was a resident of Cochran and was 
employed as a cement finisher in Hawkins- 
ville, Georgia. He testified that he had 
known Carzell Moore for fifteen years and 
that since his return to Cochran in 1974, 
after serving in the Army for eight years, 
he had “spent a lot of time” with Moore. 
According to Pasby, in late November 
1976, he drove Moore to a location in Coch- 
ran near a flower shop. Moore asked Pas- 
by to park and to wait for him to return. 
After a few minutes had passed, Moore 
returned to the car carrying a 80.06 caliber 
hunting rifle similar to the murder weapon. 
A few weeks later, Pasby accompanied 
Moore to an abandoned schoolhouse where 
Moore kept the rifle. Pasby examined the 

cuit Judges, and HENDERSON, Senior Circuit 
Judge, concur in Part I and Part IV. 

RONEY, Chief Judge, HILL, FAY, VANCE and 
EDMONDSON, Circuit Judges, and HENDER- 
SON, Senior Circuit Judge, concur in Part II. 
GODBOLD, VANCE, KRAVITCH, JOHNSON, 
HATCHETT, ANDERSON, and CLARK, Circuit 
Judges, concur in Part III. RONEY Chief Judge, 
HILL, FAY, VANCE, ANDERSON, CLARK, and 
EDMONDSON, Circuit Judges, and HENDER- 
SON, Senior Circuit Judge, concur in Part V.    



aping from 

ed in Coch- 

Moore had 

friends in 

Pasby. On 
re was ar- 

e Bleckley 
Five days 

ch warrant 

reral items, 
sh Puppy” 
items were 

me lab for 

ind jury in 

‘ned an in- 

Green with 

der of Ms. 

he Monroe 

s not recap- 

2 result, in 

rarately be- 
. of Monroe 

ess for the 

nas Pasby. 

an and was 

n Hawkins- 

hat he had 

1 years and 

an in 1974, 

pight years, 

with Moore. 

November 

ion in Coch- 

asked Pas- 

1 to return. 

sed, Moore 

0.06 caliber 

er weapon. 

ccompanied 

ouse where 

ramined the 

senior Circuit 

V. 

VANCE and 

1 HENDER- 
“in Part IL 

JOHNSON, 

ARK, Circuit 

Chief Judge, 
CLARK, and 

1 HENDER- 

n Part V. 

MOORE v. KEMP 705 
Cite as 809 F.2d 702 (11th Cir. 1987) 

rifle and noticed that its serial number had 

been obliterated. 

Pasby also testified that on January 1, 

19717, during a trip to Hawkinsville, Moore 

confessed to him that he had raped and 

murdered Ms. Allen and described how the 

crimes were committed. Pasby related 

Moore's description of the events of De- 

cember 12, 1976, as follows. Roosevelt 

Green entered the Majik Market and dis- 

tracted Ms. Allen so that Moore could enter 

the store without the rifle being noticed. 

After robbing the store, the two men ab- 

ducted Ms. Allen and drove away in her 

car. With Moore driving the car, Green 

raped Ms. Allen. The two men then ex- 

changed places, and Moore raped Ms. Al- 

len. Some time later Moore told Green to 

stop the car. He got out of the car with 

Ms. Allen and told Green to go to a gas 

station to get gas for the car. After Green 

left, Moore pointed the rifle at Ms. Allen. 

She reacted by crossing her arms over her 

stomach. Moore then fired the rifle into 

her abdomen. He fired a second shot into 

her face in an attempt to make identifica 

tion difficult. When Green returned, the 

two men picked up the body and threw it 

into the bushes by the side of the road. 

Moore told Pasby that his first rifle shot - 

had so mangled one of the victim's hands 

that he thought it was going to fall off. 

During his direct examination, Pasby tes- 

tified that he had been arrested on January 

4, 19717, for theft by taking. Pasby said 

that the arrest took place in Hawkinsville 

and that shortly after he was taken into 

custody he was transferred to the Bleckley 

County jail in Cochran. Pasby testified 

that Moore was placed in the jail with him 

following Moore's arrest on January 10. 

Pasby stated that, while he was in the jail 

with Moore, he learned that Roosevelt 

Green had been arrested and told Moore 

about the arrest! Moore exclaimed, 

“Damn, I told Green to get rid of that car 

and rifle.” 

The remainder of the State’s case con- 

sisted of evidence corroborating Pasby’s 

1. The Bleckley County jail consists of a large 

enclosure which is divided into several smaller 

cells. According to Pasby, the doors to the cells 

remained open, allowing prisoners to move 

testimony. Terry Kilgore, the owner of a 

flower shop in Cochran, testified that his 

30.06 hunting rifle was stolen from his 

truck some time after Thanksgiving 1976. 

The rifle, registered in Kilgore’s name, was 

determined in a ballistics test to have been 

the murder weapon. Green had the rifle in 

his possession the morning after the Majik 

Market robbery. Charles Livingston testi- 

fied that, on that morning, Green arrived at 

his home in South Carolina driving an auto- 

mobile similar to Ms. Allen's car. In 

Green's possession were a roll of bills, a 

“bank bag,” a large amount of coins (all of 

which were consistent with the items taken 

from the Majik Market), and a 30.06 caliber 

rifle. Green traded the 30.06 caliber rifle 

for Livingston's .25 caliber automatic pis- 

tol. The police subsequently confiscated 

the rifle, and Kilgore identified it during 

his testimony. 

Johnny Johnson, an acquaintance of 

Moore's, testified that on December 9, 

1976, three days before the robbery, Moore 

asked him and a friend if they knew of a 

place to “hit.” Moore told them that he 

had a high-powered rifle and ammunition 

that would be useful in a robbery. Three 

other witnesses testified that on the after- 

noon of December 12 they saw Moore and 

Green at Moore’s home, approximately four 

blocks from the Majik Market. 

A gas station attendant who worked at 

an Amoco station near the murder site 

testified that on the night of the murder a 

car matching the description of Ms. Allen’s 

automobile stopped for gas. Two persons 

were in the car, and the attendant remem- 

bered that the passenger, a black male, 

paid for the gas and used the restroom. 

Although he was unsure of the sex or race 

of the driver, the attendant testified that 

he thought the driver was also a black 

male. 

The State utilized a number of experts to 

inform the jury about the physical evidence 

found at the murder site and in the search 

of Moore's home. The pathologist who 

freely from cell to cell. Pasby testified that he 

heard the news of Green's arrest on television 

and that he went to Moore's cell to notify him of 

the arrest.   

 



  

706 809 FEDERAL REPORTER, 2d SERIES 

performed the autopsy on Ms. Allen testi- 
fied that her injuries were consistent with 
Moore’s description to Pasby of the rape 
and murder. His examination of the body 
revealed bullet wounds in each arm, the 
abdomen, and the head. From the location 
and nature of the bullet wounds, the pa- 
thologist theorized that Ms. Allen's arms 
had been crossed over her stomach when 
she was shot, allowing one bullet to pass 
through both arms before entering her ab- 
domen. He noted that the right arm was 
“almost completely torn in two” by the 
bullet, with the right hand remaining at- 
tached to the body only by soft tissue. He 
also stated that a separate bullet entered 
the left side of the victim’s head over her 
ear. His examination also revealed bruises 
on the inner thigh and vaginal injuries indi- 
cating that Ms. Allen had been raped prior 
to being killed. 

A ballistics expert testified that bullets 
fired from the 30.06 caliber rifle confiscat- 
ed from Livingston and registered to Terry 
Kilgore matched the 30.06 caliber slug re- 
trieved at the murder site. Warren Till- 
man, a microanalyst from the state crime 
lab, testified that a plaster cast of a foot- 
print found near the body was similar in 
size and in its treadless design to the pair 
of “Hush Puppy” shoes seized in the 
search of Moore's home. His examination 
of plaster casts of tire tracks found near 
the murder site revealed that the tracks 
were similar in size and tread design to the 
tires on Ms. Allen's automobile. Tillman 
also testified that in his opinion a Cauca- 
sian pubic hair and Negroid head hair re- 
moved from the gold towel seized in the 
search of Moore's home could have come 
from Ms. Allen and Mr. Moore respectively. 
In addition, he stated that the Negroid 
head hair found on the towel did not come 
from Roosevelt Green or Thomas Pasby. 
Finally, Linda Barton, a crime lab serolo- 
gist, testified that vaginal swabbings taken 
from the victim revealed seminal fluids 
from an individual with type A blood. She 
concluded that the seminal fluid could not 
have come from Roosevelt Green, because 
he had type B blood. Although the serolo- 
gist found that both Moore and Pasby had 

type A blood, she testified that in her opin- 
ion the seminal fluid could have come from 
Moore because he was a “strong secretor” 
and could not have come from Pasby, be- 
cause he was a “weak secretor.” 

Carzell Moore testified in his defense. 
He stated that he was twenty-four years 
old and that he was employed by a lumber 
company in Cochran. Moore admitted that 
he met Green in a penitentiary in Alabama, 
that Green had escaped from that peniten- 
tiary in late 1975, and that Green had ar- 
rived in Cochran looking for him on Decem- 
ber 11, 1976. Moore also admitted that he 
had allowed Green to stay in his home and 
had introduced Green to many of his 
friends in Cochran. He stated that on the 
afternoon of the robbery he and Green had 
been drinking. Moore testified that after 
Green left his home on foot headed toward 
town, he passed out on a couch. He denied 
participating in the robbery and denied 
making any statements to Pasby about the 
incident. The jury rejected Moore's testi- 
mony and returned a verdict of guilty on 
both the rape and the first-degree murder 
counts. 

During the sentencing phase of the trial, 
the State presented documentary evidence 
of Moore's prior convictions for burglary 
and for possession of marijuana. Moore 
then testified, asking the jury for mercy 
and repeating his denial of any involvement 
in the incident. His mother, Catherine 
Moore, also testified, asking the jury to 
spare her son’s life. In rebuttal, the State 
called Joseph Allen, the victim's father. 
He testified that his daughter would have 
been nineteen on December 25, 1976, had 
been an honor student in high school, was 
attending Middle Georgia College on a par- 
tial scholarship studying to become a 
nurse, and had been working part time at 
the Majik Market to help pay for her edu- 
cation. After deliberating, the jury recom- 
mended the death penalty on both the rape 
and the first-degree murder counts and 
found the following statutory aggravating 
circumstances: first, each crime was com- 
mitted during the commission of additional 
capital felonies, i.e., the murder was com-    



that in her opin- 

have come from 
strong secretor” 

from Pasby, be- 
retor.” 

in his defense. 
renty-four years 

ed by a lumber 
re admitted that 
ary in Alabama, 

m that peniten- 
t Green had ar- 

rr him on Decem- 

hdmitted that he 

in his home and 

many of his 
hted that on the 

and Green had 

tified that after 

kL headed toward 

uch. He denied 

pry and denied 

Pasby about the 

Moore's testi- 
ict of guilty on 

-degree murder 

ase of the trial, 
entary evidence 
s for burglary 
ijuana. Moore 

jury for mercy 
ny involvement 

ther, Catherine 

ng the jury to 
buttal, the State 

rictim’s father. 

ter would have 

r 25, 1976, had 

igh school, was 

ollege on a par- 
to become a 

g part time at 

ay for her edu- 

the jury recom- 
n both the rape 
er counts and 

ry aggravating 
rime was com- 

n of additional 

irder was com- 

  

MOORE v. KEMP 707 

Cite as 809 F.2d 702 (11th Cir. 1987) 

mitted during the commission of the rape, 

kidnapping, and armed robbery, and the 

rape was committed during the commission 

of the murder, kidnapping, and armed rob- 

pery, see 0.C.G.A. § 17-10-30(b)(2) (1982); 

and, second, each crime was outrageously 

and wantonly vile, horrible, and inhuman in 

that it involved torture of the victim and 

depravity of mind on the part of the de- 

fendant, see O0.C.G.A. § 17-10-30(b)(7) 

(1982). As required by Georgia law, the 

trial judge adopted the jury's recommenda- 

tion and entered a sentence of death on 

both counts.’ 

B. 

On direct appeal, the Supreme Court of 

Georgia affirmed Moore's convictions and 

sentences. Moore v. State, 240 Ga. 807, 

243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 

S.Ct. 268, 58 L.Ed.2d 249 (1978). Moore 

subsequently petitioned the Superior Court 

of Butts County for a writ of habeas cor- 

pus. After conducting an evidentiary hear- 

2. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 

53 L.Ed.2d 982 (1977), decided 20 days after 

petitioner's sentencing, precludes the imposition 

of the death penalty for the crime of rape. 

Petitioner challenged his death sentence on the 

rape count in his direct appeal to the Supreme 

Court of Georgia. Moore v. State, 240 Ga. 807, 

243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S.Ct. 

268, 58 L.Ed.2d 249 (1978). The court read 

Coker as allowing a death sentence in a rape 

case if the victim is murdered immediately fol- 

lowing the rape and thus affirmed petitioner's 

sentence. Id. at 822, 243 S.E.2d at 11. In his 

habeas petition in the district court, petitioner 

claimed that Coker precluded his death sentence 

on the rape count. The district court rejected 

his claim without stating any reason for its 

decision. Petitioner has not questioned this rul- 

ing in this appeal; therefore, we do not pass on 

it. Petitioner does attack his death sentence on 

the rape count, as well as on the murder count, 

on the ground that the trial judge failed ade- 

quately to instruct the sentencing jury on its 

option to impose a life sentence despite the 

presence of a statutory aggravating circum- 

stance. We address this claim in Part 1V, infra. 

3. Although the petition listed 33 claims, we con- 

clude, after a careful reading, that the petition 

contained 16 cognizable constitutional claims. 

These claims were that: (1) the exclusion of 

young adults and women from the venires from 

which petitioner's grand jury and petit jury 

were chosen denied him due process in viola- 

tion of the fourteenth amendment; (2) the trial 

ing, the court denied Moore's petition. The 

Supreme Court of Georgia denied Moore's 

application for a certificate of probable 

cause to appeal, and the United States Su- 

preme Court denied his petition for a writ 

of certiorari to review the state habeas 

corpus decision. Moore ?. Zant, 446 U.S. 

947, 100 S.Ct. 2176, 64 L.Ed.2d 803 (1980). 

Thereafter, Moore filed a second habeas 

corpus petition in the Superior Court of 

Butts County in an effort to exhaust those 

issues he had failed to raise in any of the 

previous judicial proceedings. The court 

summarily dismissed the petition without 

holding a hearing. In response, Moore 

filed an application for a certificate of prob- 

able cause to appeal, which the Supreme 

Court of Georgia denied. 

Having exhausted his state remedies, 

Moore filed the instant petition for a writ 

of habeas corpus in the district court on 

April 7, 1981. Moore raised sixteen claims 

of error? The petition was referred to a 

court's denial of petitioner's motion for a 

change in venue based on prejudicial pretrial 

publicity denied him a fair trial in violation of 

the fifth, sixth, and fourteenth amendments; (3) 

the trial court's denial of petitioner's request for 

an independent expert to assist his attorney in 

confronting the physical evidence the State in- 

troduced against him at trial violated his rights 

under the fifth, sixth, and fourteenth amend- 

ments; (4) petitioner was denied the effective 

assistance of counsel at all stages of his criminal 

prosecution—pretrial, trial, sentencing, and di- 

rect appeal—and in his state habeas proceedings 

in violation of the sixth and fourteenth amend- 

ments; (5) the prosecution’s failure to reveal 

promises made to Thomas Pasby, the State's key 

witness, violated petitioner's due process rights 

under the fourteenth amendment; (6) petition- 

er's convictions were based on false testimony 

in violation of the fourteenth amendment due 

process clause; (7) petitioner's convictions were 

based upon evidence resulting from an illegal 

search of his home in violation of the fourth 

and fourteenth amendments; (8) the trial court 

improperly instructed the jury on the issues of 

reasonable doubt and conspiracy at the guilt 

phase of petitioner's trial in violation of the 

eighth and fourteenth amendments; (9) the ad- 

mission of inflammatory exhibits and hearsay 

evidence denied petitioner a fair hearing at both 

phases of his trial in violation of the sixth and 

fourteenth amendments; (10) the prosecutor 

made improper and prejudicial remarks to the 

jury at the sentencing phase of petitioner's trial,    



708 

magistrate who made findings of fact and 

conclusions of law and recommended that 

the district court deny the petition without 

an evidentiary hearing. On September 20, 

1982, the district court entered an order 

adopting the magistrate’s recommendation 

and denying the petition. Moore appealed, 

contesting the district court’s disposition as 

to five of his claims. In addition, Moore 

contended that the district court erred in 

refusing to hold an evidentiary hearing as 

to four of his claims.® A panel of this 

court rejected Moore's arguments and af- 

firmed the district court’s denial of relief. 

Moore v. Zant, 722 F.2d 640 (11th Cir. 

1983). We vacated the panel opinion and 

granted Moore's petition for rehearing en 

banc on March 15, 1984. During oral argu- 

ment, the parties informed us that a recent 

Supreme Court of Georgia decision, 

Stynchcombe v. Floyd, 252 Ga. 113, 311 
S.E.2d 828 (1984), appeared to represent a 

change in Georgia law directly related to 

an issue Moore raised in his appeal. In 

Floyd, the court held that a jury instruc- 

tion virtually identical to one challenged in 

Moore's case was erroneous because it 

failed to inform the jury of its option to 

recommend a life sentence in spite of the 

presence of a statutory aggravating cir- 

cumstance. Id. at 114, 311 S.E.2d at 830. 

Accordingly, we held Moore's appeal in 

thus denying him due process of law in viola- 
tion of the fourteenth amendment; (11) the trial 
court's sentencing instructions to the jury did 
not adequately inform it of its option, under 
Georgia law, to return a life sentence even if it 
found the existence of a statutory aggravating 
circumstance in violation of the eighth and 
fourteenth amendments; (12) the testimony of 

the victim's father at the sentencing hearing 
deprived petitioner of his right to a sentencing 
hearing free from passion and prejudice in vio- 
lation of the sixth, eighth, and fourteenth 
amendments; (13) petitioner was deprived of 
his right to the guided exercise of jury sentenc- 
ing discretion in violation of the eighth and 
fourteenth amendments because (a) the trial 

court permitted the State to present to the jury 
evidence of petitioner's prior criminal history, 
(b) the trial court instructed the jury to consider 

constitutionally defective statutory aggravating 
circumstances under 0.C.G.A. § 17-10-30(b)(2), 
(b)(7) (1982), (c) the trial court's instruction on 

809 FEDERAL REPORTER, 2d SERIES 

abeyance so that he could resubmit his jury 

instruction claim to the Georgia courts. 

Moore immediately filed a petition for 

habeas corpus relief in the Superior Court 
of Butts County. After an evidentiary 

hearing, the court dismissed Moore’s peti- 
tion as successive. The Supreme Court of 

Georgia affirmed on April 24, 1985. Moore 
v. Kemp, 254 Ga. 279, 328 S.E.2d 725 
(1985). After being notified of this disposi- 

tion and receiving supplemental briefs, we 
heard further oral argument in this case on 
October 21, 1985. 

We now proceed to a discussion of the 

four claims that prompted us to rehear this 

case en banc: (1) that the trial court's 

denial of Moore's pretrial request for an 

independent expert to assist his attorney in 

confronting the physical evidence the State 

introduced against him at trial denied him 

due process of law; (2) that the district 

court erred in refusing to hold an evidentia- 

ry hearing to determine whether the prose- 

cutor withheld portions of Thomas Pasby’s 

criminal record from the defense and 

whether Pasby testified against Moore pur- 

suant to an undisclosed agreement with the 

State; (3) that the trial court’s sentencing 
instructions to the jury did not adequately 
inform it of its option to return a life 
sentence, even if it found a statutory ag- 

gravating circumstance; and (4) that the 

testimony of the victim's father during the 

sentencing phase of the trial deprived 

mitigating circumstances precluded the jury 
from considering mitigating circumstances oth- 
er than petitioner's age by specifically noting 
only that factor, and (d) the trial court failed to 
require the jury to make findings of fact as to 
the existence of mitigating factors; (14) a death 
sentence for the crime of rape deprived petition- 
er of a sentence proportionate to his crime in 
violation of the eighth and fourteenth amend- 
ments; (15) the Supreme Court of Georgia de- 
nied petitioner adequate review of his convic- 
tions and sentences in violation of the eighth 
and fourteenth amendments; and (16) Georgia 
administers the death penalty in a discriminato- 
ry fashion in violation of the eighth and four- 
teenth amendments. 

4. These claims are described supra, note 3, as 

claims 3, 10, 11, 12 & 13(a)-(c). 

5. These claims are described supra, note 3, as 

claims 4, 5, 6 & 7.    



resubmit his jury 

orgia courts. 

d a petition for 
e Superior Court 

an evidentiary 

bed Moore's peti- 

upreme Court of 

24, 1985. Moore 

328 S.E.2d 725 
pd of this disposi- 
mental briefs, we 

nt in this case on 

discussion of the 

us to rehear this 

the trial court's 
1 request for an 

t his attorney in 
idence the State 

trial denied him 

that the district 

hold an evidentia- 

hether the prose- 
Thomas Pasby’s 
e defense and 

ainst Moore pur- 
reement with the 
ourt’s sentencing 
ld not adequately 
to return a life 

a statutory ag- 

and (4) that the 

father during the 
e trial deprived 

brecluded the jury 
circumstances oth- 
specifically noting 
trial court failed to 
dings of fact as to 
actors; (14) a death 

be deprived petition- 
ate to his crime in 
fourteenth amend- 

ourt of Georgia de- 
view of his convic- 
ation of the eighth 

s; and (16) Georgia 
ty in a discriminato- 
he eighth and four- 

bd supra, note 3, as 
c). 

d supra, note 3, as 

  

MOORE v. KEMP 709 
Cite as 809 F.2d 702 (11th Cir. 1987) 

Moore of his right to a sentencing hearing 

free from passion and prejudice. As to the 

remaining claims Moore raises on appeal, 

we reinstate the panel opinion. 

IL 

Petitioner was indigent at the time of his 

prosecution. Prior to trial, he moved the 

court to provide a “criminologist or other 

expert witness’ to assist his attorney in the 

preparation and presentation of his de- 

fense. The court denied the motion. Peti- 

tioner claims that this denial deprived him 

of the right to a fundamentally fair trial 

guaranteed by the due process clause of 

the fourteenth amendment;® he cites two 

reasons. First, without the assistance of 

an expert, his attorney was unable ade- 

quately to cross-examine the State’s ex- 

perts, Warren Tillman, a microanalyst, and 

Linda Barton, a serologist, and thus could 

not challenge the validity of the conclu- 

sions they derived from their tests. Sec- 

ond, petitioner asserts that an expert ap- 

pointed to assist counsel might have con- 

ducted different and more conclusive tests, 

the results of which might have supported 

his alibi defense. 

A. 

[1,2] Supreme Court precedent estab- 

lishes the principle that the due process 

clause of the fourteenth amendment re- 

quires that the state, upon request, provide 

indigent defendants with the “basic tools of 

6. Petitioner asserts in his brief to the en banc 

court that the trial court's denial of his motion 

for the appointment of an expert denied him a 

fair trial, in violation of the due process and 

equal protection clauses of the fourteenth 

amendment, rendered his attorney ineffective 

within the meaning of the sixth and fourteenth 

amendments, and subjected petitioner to cruel 

and unusual punishment in violation of the 

eighth and fourteenth amendments. Because 

petitioner's discussion of the alleged error is in 

terms of the fairness of the trial he received, we 

utilize a due process analysis in addressing his 

claim. This is the same approach the Supreme 

Court employed in Ake v. Oklahoma, 470 U.S. 

68, 87 n. 13, 105 S.Ct. 1087, 1099 n. 13, 84 

L.Ed.2d 53 (1985), in which it examined a claim 

for psychiatric assistance under the due process 

clause and declined to consider the applicability 

809 F.2d—17 

an adequate defense ... when those tools 

are available for a price to other prison 

ers.” Britt v. North Carolina, 404 U.S. 

226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 

(1971); see also Ake v. Oklahoma, 470 U.S. 

68, 77, 83, 105 S.Ct. 1087, 1094, 1097, 84 

L.Ed.2d 53 (1985); Ross v. Moffitt, 417 U.S. 

600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); 

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 

585, 100 L.Ed. 891 (1956) (plurality). The 

state need not provide indigent defendants 

all the assistance their wealthier counter- 

parts might buy; rather, fundamental fair- 

ness requires that the state not deny them 

“an adequate opportunity to present their 

claims fairly within the adversary system.” 

Ross, 417 U.S. at 612, 94 S.Ct. at 2444-45; 

see also Ake, 470 U.S. at 77, 105 S.Ct. at 

1094.7 In the case at hand, petitioner con- 

tends that the state trial court, in denying 

his request for the appointment of a “crimi- 

nologist or other expert witness,” deprived 

him of a basic tool of an adequate defense 

and therefore rendered his trial fundamen- 

tally unfair. 

An expert can assist a criminal defendant 

in marshaling his defense in two essential 

ways. First, he can gather facts, inspect 

tangible evidence, or conduct tests or ex- 

aminations that may aid defense counsel in 

confronting the prosecution's case, includ- 

ing its expert witnesses, or in fashioning a 

theory of defense. Second, the expert can 

provide opinion testimony to rebut prosecu- 

tion evidence or to establish an affirmative 

defense, such as insanity. In a given case, 

of the equal protection clause or the sixth 

amendment. 

7. Among the tools the state must not deny an 

indigent defendant in a criminal proceeding are 

the assistance of counsel at trial, Gideon v. 

Wainwright, 372 U.S. 335, 83 SC. 792, 9 

L.Ed.2d 799 (1963), and on the defendant's first 

direct appeal as of right, Douglas v. California, 

372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), 

and a trial transcript, if it is necessary to a 

decision on the merits of the appeal, Griffin v. 

Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 

(1956). These tools are necessary to ensure that 

an indigent defendant's access to justice is 

meaningful. See Ake v. Oklahoma, 470 U.S. 68, 

76-77, 105 S.Ct. 1087, 1093-94, 84 L.Ed.2d 53 

(1985).   
 



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710 809 FEDERAL REPORTER, 2d SERIES 

the assistance of an expert could be so 

important to the defense that without it an 

innocent defendant could be convicted or, 

at the very least, the public's confidence in 

the fairness of his trial and its outcome 

could be undermined. Even so, an indigent 

defendant who did not have the assistance 

of an expert in preparing and presenting 

his case cannot be heard to complain about 

his conviction on due process grounds un- 

less he made a timely request to the trial 

court for the provision of expert assistance, 

the court improperly denied the request, 

and the denial rendered the defendant's 

trial fundamentally unfair. 

In the case before us, a timely request 

for the appointment of an expert was 

made. The question we must decide next 

is whether the trial court erred in denying 

it. Specifically, we must assess the reason- 

ableness of the trial judge's action at the 

time he took it. This assessment necessar- 

ily turns on the sufficiency of the petition- 

er's explanation as to why he needed an 

expert. That is, having heard petitioner’s 

explanation, should the trial judge have 

concluded that unless he granted his re- 

quest petitioner would likely be denied an 

adequate opportunity fairly to confront the 

State’s case and to present his defense? 

B. 

The Supreme Court adopted the ap- 

proach described above in Ake v. Okla- 

homa, 470 U.S. 68, 83, 105 S.Ct. 1087, 1097, 

84 L.Ed.2d 53 (1985), and in Caldwell v. 

Mississippi, 472 U.S. 320, 323 n. 1, 105 

S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) 

(plurality). In Ake, the Court concluded 

that the due process clause’s guarantee of 

fundamental fairness is implicated “when 

[an indigent] defendant demonstrates to 

the trial judge that his sanity at the time of 

the offense is to be a significant factor at 

trial” and that “the State must, at a mini- 

mum, assure the defendant access to a 

competent psychiatrist who will conduct an 

appropriate examination and assist in eval- 

uation, preparation, and presentation of the 

defense.” Ake, 470 U.S. at 83, 105 S.Ct. at 

1097. 

Ake was arrested and charged with mur- 

dering a couple and wounding their two 

children. At his arraignment, and while in 

jail, his behavior was so bizarre that the 

trial judge, sua sponte, ordered him exam- 

ined by a psychiatrist. As a result of that 

examination, Ake was committed to a state 

hospital for a determination of his compe- 

tency to stand trial. A few weeks later, 

the chief forensic psychiatrist at the state 

hospital told the court that Ake was not 

competent to stand trial. After a compe- 

tency hearing, the court found Ake to be a 

“mentally ill person in need of care and 

treatment,” id. at 71, 105 S.Ct. at 1091, and 

incompetent to stand trial. The court or- 

dered him committed to the state mental 

hospital. Six weeks later, the chief foren- 

sic psychiatrist advised the court that Ake, 

who was being treated with an antipsy- 

chotic drug, had become competent to 

stand trial. The court thereafter found 

Ake to be competent, and the criminal pros- 

ecution resumed. See id. at 70-72, 105 

S.Ct. at 1090-91. 

At a pretrial conference, defense counsel 

informed the court that his client would 

raise an insanity defense at trial. The at- 

torney further stated that in order to pre- 

pare and present that defense a psychia- 

trist would have to examine Ake with re- 

spect to his mental condition at the time of 

the murders. Because during his stay at 

the state hospital Ake was not examined to 

determine his sanity at the time of the 

offenses and, as an indigent, could not af- 

ford to pay a psychiatrist, counsel asked 

the court either to arrange or provide the 

necessary funds for such an examination. 

The court denied counsel's motion. See id. 

at 72, 105 S.Ct. at 1091. 

At trial, defense counsel did not dispute 

Ake's involvement in the charged crimes; 

his sole argument was that Ake was not 

guilty by reason of insanity. To support 

his argument, counsel called the psychia- 

trists who had examined Ake at the state 

hospital and questioned them about his 

mental condition at the time of the of- 

fenses. They were unable to render an 

opinion on the point, however, because they    



     
   

  

   
rged with mur- 

ding their two 

t, and while in 

izarre that the 

ered him exam- 

h result of that 

hitted to a state 

h of his compe- 

weeks later, 
st at the state 

Ake was not 
After a compe- 
nd Ake to be a 

d of care and 

t. at 1091, and 

The court or- 

e state mental 

he chief foren- 

ourt that Ake, 

h an antipsy- 
competent to 

breafter found 

b criminal pros- 

at 70-72, 105 

    

   
    

   

  

    

  

   

    

   

  

    

     
    

    
    
   

   

  

   
   
     

   

    

    
    

  

efense counsel 

s client would 

trial. The at- 

order to pre- 
hse a psychia- 

bk Ake with re- 

at the time of 

ng his stay at 

bt examined to 

e time of the 

, could not af- 

counsel asked 

or provide the 

examination. 

lotion. See 1d. 

    

      

   

  

   

            

   

   

            

     

id not dispute 

barged crimes; 

Ake was not 

To support 

I the psychia- 

e at the state 

em about his 

he of the of- 

to render an 

, because they     

  

  

MOORE v. KEMP 711 
Cite as 809 F.2d 702 (11th Cir. 1987) 

had not examined Ake for that purpose. 
As a result, no one testified as to his sanity 

at the time of the offenses, and, having 

failed to carry his burden of proof on the 
insanity defense, he received guilty ver- 

dicts. The State then sought the death 

penalty. Following a sentencing hearing, 
in which the parties presented no additional 

expert testimony, the jury recommended 

that Ake be sentenced to death for each of 

the two murders, and he was sentenced 

accordingly. 

Ake appealed to the Oklahoma Court of 

Criminal Appeals, claiming, among other 

things, that his convictions and death sen- 

tences were invalid because the trial 

court’s failure to provide psychiatric assist- 

ance denied him a fair trial. The court of 

criminal appeals rejected that claim on a 

procedural ground, holding that he had 

waived it by not challenging the trial 

court’s ruling in his motion for a new trial. 

The Supreme Court of the United States, 

on certiorari, reversed Ake’s conviction and 

remanded the case for a new trial because 

the failure to provide psychiatric assistance 

operated to deny Ake due process of law. 

In reaching this conclusion, the Supreme 

Court focused on the information available 

to the trial judge when defense counsel 

requested psychiatric assistance and on the 

effect the denial of such assistance had on 

the presentation of Ake’s defense at trial. 

The Court observed that when Ake’s coun- 

sel requested the provision of a psychia- 

trist, the trial judge knew that insanity 

would be Ake’s sole defense, that his case 

rested on his ability to prove that he was 

insane when he committed the crimes, and 

that none of the state psychiatrists who 

had examined and treated Ake had under- 

taken to assess his mental condition at that 

time. In addition, the trial judge had deter- 

mined previously that Ake was suffering 

from a mental illness that may have affect- 

ed him at the time of the shootings and had 

rendered him incompetent to stand trial for 

a six-week period. Finally, the trial judge 

knew that Ake could stand trial only if he 

remained under medication. The Supreme 
Court concluded that, given the facts be- 

fore the trial judge and defense counsel’s 

explanation for requesting expert assist- 

ance, it was unreasonable for the trial 

judge to have denied the request; he 

should have known that to refuse the re- 

quest would be to deny the defendant an 

adequate opportunity to prepare and 

present his insanity defense. The Court 
further concluded, on the basis of what 

took place at trial, that the denial of expert 

assistance precluded Ake from presenting 

an effective defense. 

In Caldwell, also a capital case, the Su- 

preme Court was faced again with a claim 

that a trial court's refusal to provide a 

defendant with expert assistance denied 

the defendant a fair trial. Caldwell asked 

for the appointment of a criminal investiga- 

tor, a fingerprint expert, and a ballistics 

expert. His requests were denied. The 

state supreme court affirmed the denials 

“because the requests were accompanied 

by no showing as to their reasonableness.” 

Caldwell, 472 U.S. at 323, n. 1, 105 S.Ct. at 

2637 n. 1. For example, the motion re- 

questing the ballistics expert included only 

the general statement that the expert was 

necessary; the motion failed to explain in 

specific terms why the expert was needed. 

See Caldwell v. State, 443 So.2d 806, 812 

(Miss.1983), rev'd om other grounds sub 

nom. Caldwell v. Mississippi, 472 U.S. 320, 

105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (plu- 

rality). The Supreme Court concluded that 

because “petitioner offered little more than 

undeveloped assertions that the requested 

assistance would be beneficial, [there was] 

no deprivation of due process.” Caldwell, 

472 U.S. at 324 n. 1, 105 S.Ct. at 2637 n. 1 

(citation omitted). 

The Supreme Court's statement in Cald- 

well implies that the government's refusal 

to provide nonpsychiatric expert assistance 

could, in a given case, deny a defendant a 

fair trial. The implication is questionable, 

however, in light of the Court’s subsequent 

statement that it had “no need to deter- 

mine as a matter of federal constitutional 

law what if any showing would have enti- 

tled a defendant to assistance of the type 

[Caldwell] sought.” Id. (emphasis added). 

We nonetheless assume, for sake of argu- 
RE — 

 



712 

ment, that the due process clause could 

require the government, both state and fed- 
eral, to provide nonpsychiatric expert as- 

sistance to an indigent defendant upon a 

sufficient showing of need. 

[8-6] Ake and Caldwell, taken togeth- 

er, hold that a defendant must demonstrate 

something more than a mere possibility of 

assistance from a requested expert;® due 

process does not require the government 

automatically to provide indigent defend- 

ants with expert assistance upon demand. 

Rather, a fair reading of these precedents 

is that a defendant must show the trial 

court that there exists a reasonable proba- 

bility both that an expert would be of as- 

sistance to the defense ® and that denial of 

expert assistance would result in a funda- 

mentally unfair trial. Thus, if a defendant 

wants an expert to assist his attorney in 

confronting the prosecution’s proof—by 

preparing counsel to cross-examine the 

prosecution’s experts or by providing re- 

buttal testimony—he must inform the court 

of the nature of the prosecution’s case and 

how the requested expert would be useful. 

At the very least, he must inform the trial 

court about the nature of the crime and the 

evidence linking him to the crime. By the 

8. Requiring trial courts, both state and federal, 
to provide for expert assistance—through direct 
appointment or a grant of funds—would place a 
substantial, if not onerous, burden on the ad- 
ministration of criminal justice. For example, 
the trial court would have to (1) appoint a 

defense expert for every expert available to the 
government; (2) provide for expert assistance 
whether or not such assistance turned out to be 
needed; and (3) provide for any additional ex- 
perts the appointed experts might need to ex- 
plore theories that could aid the defense in 
cross-examining prosecution witnesses or in 

presenting the defense’s case. We question the 
wisdom of such due process requirements ab- 
sent a substantial showing, such as the one 
made in Ake, of a significant benefit to the 
truth-seeking function of a trial. 

9. This required showing is analogous to the re- 
quirement that an indigent defendant wishing to 
obtain the issuance of a subpoena at govern- 
ment expense make “a satisfactory showing ... 
that the presence of the witness is necessary to 
an adequate defense.” Fed.R.Crim.P. 17(b). 
See United States v. Abshire, 471 F.2d 116, 119 
(5th Cir.1972) (“[A] Rule 17(b) motion must 

state facts that show the relevancy and necessity 
of the requested witnesses’ testimony.”) (citation 

809 FEDERAL REPORTER, 2d SERIES 

same token, if the defendant desires the 

appointment of an expert so that he can 

present an affirmative defense, such as 

insanity, he must demonstrate a substan- 

tial basis for the defense, as the defendant 

did in Ake. In each instance, the defend- 

ant’s showing must also include a specific 

description of the expert or experts de- 

sired; without this basic information, the 

court would be unable to grant the defend- 

ant’s motion, because the court would not 

know what type of expert was needed. In 

addition, the defendant should inform the 

court why the particular expert is neces- 

sary. We recognize that defense counsel 

may be unfamiliar with the specific scien- 

tific theories implicated in a case and there- 

fore cannot be expected to provide the 

court with a detailed analysis of the assist- 

ance an appointed expert might provide. 

We do believe, however, that defense coun- 

sel is obligated to inform himself about the 

specific scientific area in question and to 

provide the court with as much information 

as possible concerning the usefulness of 

the requested expert to the defense’s 

case.!? 

With the foregoing principles in mind, we 

address the merits of petitioner's claim. 

omitted) (In Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir.1981) (en banc), this court 

adopted as binding precedent all decisions of 
the former Fifth Circuit handed down prior to 
October 1, 1981.). 

10. In a jurisdiction like Florida, which accords 
the defendant substantial discovery rights, see 
Fla.R.Crim.P. 3.220 (requiring prosecution to 
disclose, among other things, written statements 
of persons having relevant information and re- 
ports or statements of experts, including results 
of scientific tests, and allowing defendant to 
depose any person having relevant informa- 
tion), the defendant should have no difficulty in 

demonstrating the theory of the government's 
case and outlining the evidence the prosecutor 
will probably present at trial. The difficulty of 
the defendant's task will vary depending on the 
scope of the jurisdiction's discovery rules. In a 
jurisdiction still employing “trial by ambush,” 
the defendant might have to ask the court to 
make the prosecutor disclose the theory of his 
case and the results of any tests that may have 
been performed by government experts or at the 
government's request.    



bndant desires the 

rt so that he can 

defense, such as 
hstrate a substan- 

, as the defendant 

tance, the defend- 

include a specific 

or experts de- 

information, the 

grant the defend- 

e court would not 

was needed. In 

should inform the 

" expert is neces- 

t defense counsel 

he specific scien- 

| a case and there- 

[I to provide the 

ysis of the assist- 

might provide. 

hat defense coun- 

himself about the 

question and to 
uch information 

he usefulness of 
o the defense’s 

iples in mind, we 

etitioner’s claim. 

f Prichard, 661 F.2d 

en banc), this court 

nt all decisions of 

ded down prior to 

ida, which accords 
iscovery rights, see 
ing prosecution to 
written statements 

Information and re- 
s, including results 
wing defendant to 
relevant informa- 

ave no difficulty in 
the government's 
ce the prosecutor 

. The difficulty of 
depending on the 

covery rules. In a 
trial by ambush,” 
ask the court to 
the theory of his 

sts that may have 
t experts or at the 

  

MOORE v. KEMP 713 
Cite as 809 F.2d 702 (11th Cir. 1987) 

We begin by examining the information 

before the trial court when it ruled on 
petitioner’s motion. 

C. 

[71 On January 10, 1977, petitioner was 

arrested and charged with the murder of 

Ms. Allen. Two weeks later, on January 

24, attorneys A.J. Welch, Jr. and Rod 

Meadows were appointed to defend peti- 

tioner by the Honorable Hugh D. Sosebee, 

the superior court judge who was assigned 

to the case and who later presided over 

petitioner’s trial. Later that day, a “com- 
mittal hearing” !! was held before another 

superior court judge, the Honorable Sam C. 

Whitmire.!? On February 9, 1977, a tran- 

script of the committal hearing was filed 

and placed in the record. Attached to this 

document was the portion of the transcript 

from the committal hearing held for 

Roosevelt Green containing the testimony 

of the Monroe County sheriff, L.C. Bittick. 

In his testimony, Sheriff Bittick described 

the results of tests conducted by Linda 

Barton, the crime lab serologist, on some 

seminal fluid found in the body of the 

victim and on samples of Green’s blood and 

saliva. According to the sheriff, Barton 

had determined from these tests that the 

seminal fluid was produced by an individual 

who had type A blood and was also a 

“secretor.” Barton had determined that 

Green had type B blood, thus eliminating 

him as a possible source of the seminal 
fluid. 

On February 15, 1977, Judge Whitmire 

presided over a hearing on discovery mo- 

tions filed by petitioner’s counsel. At the 

conclusion of the hearing, defense attorney 

Welch advised the court that the State had 

agreed to provide the defense with copies 

of “all the physical evidence ... including 

11. Under Georgia law, an accused being held in 
custody can demand a preliminary hearing, of- 
ten termed a “committal hearing,” for the pur- 
pose of determining whether there exists proba- 
ble cause to believe that the accused perpetrated 
the charged crime and, if so, whether to bind 
the accused over to the grand jury. See O.C. 
G.A. § 17-7-23(a) (1982); Fleming v. Kemp, 748 
F.2d 1435, 1439 n. 14 (11th Cir.1984), cert. de- 

the Crime Lab reports, chemical analysis, 
and so forth conducted on the physical evi- 

dence.” Welch then made the following 
motion: 

We would like to make a motion to the 

Court that an independent research 
analysis [sic] be appointed by this Court 

that is not employed by the State of 

Georgia to examine this evidence to find 

his own conclusions on behalf of the de- 

fendant, to reach his own conclusions, in 

order that we can first of all, have some- 

one to advise us as to the expertise of 

the Georgia Crime Lab, whether or not 

they performed the correct tests, wheth- 

er or not there could be any variances in 

the findings of the Georgia Crime Lab, in 

order that we would have this knowledge 
available to us. 

The court did not rule on the motion but 

instead asked Welch to submit the motion 
in writing. 

Petitioner was indicted by the grand jury 

later that day, thereby eliminating the need 

for a committal hearing and terminating 

Judge Whitmire’s jurisdiction over the 

case. See Douglas v. State, 132 Ga.App. 

694, 209 S.E.2d 114 (1974). All subsequent 

proceedings in petitioner's case were han- 
dled by Judge Sosebee. 

On February 24, 1977, petitioner's ap- 

pointed counsel asked the court’s permis- 

sion to withdraw, and the court appointed a 

new attorney, W. Franklin Freeman, Jr., to 

represent petitioner. Freeman continued 

to press the State for copies of any written 

reports from the crime lab, and he request- 

ed the State to provide him with a list of 

witnesses the State would call at trial. On 

April 6, 1977, at the request of counsel for 

each side, the court continued a scheduled 

pretrial hearing so that both parties could 

examine the reports of the crime lab. The 

crime lab issued ten reports, including the 

nied, — U.S. —, 106 S.Ct. 1286, 89 L.Ed.2d 
593 (1986). 

12. Judge Sosebee did not preside over the com- 
mittal hearing, because under Georgia law the 
judge who has been assigned to try the case 
cannot preside over the committal hearing. See 
0.C.G.A. § 17-7-23(b) (1982).   

 



  

  

  

714 809 FEDERAL REPORTER, 2d SERIES 

reports of Warren Tillman and Linda Bar- 
ton. On April 15, three days after Free- 
man received the reports, the State gave 
him a list of witnesses who would testify at 
trial.’® Tillman and Barton were named as 
witnesses in that document. 

13. The State was required by statute, upon time- 
ly motion, to produce copies of “any written 
scientific reports in the possession of the prose- 
cution which will be introduced in whole or in 
part against the defendant by the prosecution in 
its case-in-chief or in rebuttal.” 0.C.G.A. §17- 
7-211(b) (1982). 

14. The complete text of the motion is set out 
below: 

MOTION TO REQUEST THE COURT TO AP- 
POINT CRIMINOLOGIST OR OTHER EX- 
PERT WITNESS TO ASSIST DEFENSE 
COUNSEL AND PLEA IN ABATEMENT 
Now comes CARZELL MOORE, Defendant 

above named, and moves the Court to appoint 
a criminologist or other expert witness to as- 
sist defense counsel by showing to the Court 
the following: 

1 
Movant was arrested by the Bleckley Coun- 

ty Sheriff's Department in January of 1977 on 
a charge of Murder of Teresa Allen. 

2, 
The undersigned counsel has been appoint- 

ed to represent Defendant. 

3. 
Defendant has been indicted for murder 

and rape by the Monroe County Grand Jury. 
4. 

Approximately ninety-four items of physical 
evidence have been assembled by the District 
Attorney of the Flint Judicial Cirucit [sic]; 
Bleckley County Sheriff's Department; Mon- 
roe County Sheriff's Department; Cochran 
City Police; the Georgia Bureau of Investiga- 
tion; the Georgia State Crime Lab; the Hon- 
ree County Police Department; [sic] Honree, 
South Carolina; Conway City Police Depart- 
ment, Conway, South Carolina; the District 
Attorney of the Oconee Judicial Circuit; and 
the officers, agents, and employees of all the 
above (hereinafter referred to as Law En- 
forcement and Judicial Agencies). Among 
the items assembled are blood samples, saliva 
specimens, and hair specimens from the de- 
fendant. Additionally, the gun, shoes, cloth- 
ing, hosiery, foot castings, and other types of 
physical evidence have been assembled by 
said law enforcement and judicial agencies. 

5S. 
Defendant is indigent, and cannot afford to 

procure the services of a private, independent 
expert to assist and advise him on the scien- 
tific analysis of this evidence. 

On the same day, Freeman filed a writ- 
ten motion styled “Motion to Request the 
Court to Appoint Criminologist or Other 
Expert Witness to Assist Defense Counsel 
and Plea in Abatement.” The motion al- 
leged the following: 4 (1) petitioner was 

6. 
Defendant has been informed that the vari- 

ous items of physical evidence tend to connect 
him to a commission of the crime for which 
he is charged, even though defendant under- 
stands that a number of the tests performed 
by the State Crime Lab do not conclusively 
prove the presence of defendant, but rather 
prove the presence of someone similar to de- 
fendant. 

7. 
Neither defendant nor his counsel are suffi- 

ciently knowledgeable to determine whether 
the test and examinations performed by the 
State Crime Lab on the various pieces of phys- 
ical evidence are complete, conclusive, or ex- 
haustive. Defendant understands that there 
are certain tests which can be run which 
might conclusively prove whether or not the 
hair samples found are those from defendant, 
but neither defendant nor his counsel have 
the necessary funds or expertise to perform 
said tests. 

8. 
Appointed Counsel cannot effectively pre- 

pare the defense for Defendant without the 
services of an expert witness to advise him 
concerning the tests and examinations run by 
the law enforcement and judicial agencies 
and no provision has been made for the De- 
fendant to have available to him the kind of 
resources which are available to the State 
through the State Crime Laboratory in order 
that the Defendant can test the validity of and 
the accuracy of any tests which have been run 
by the State and the results of which may be 
introduced into evidence against the defend- 
ant at trial. 

9. 
Under the laws of Georgia, Defendant has 

no right to any pre-trial or pre-arraignment 
discovery except to the extent that the state is 
obligated to produce information which 
might tend to exculpate the Defendant or miti- 
gate his alleged involvement in the crime for 
which he has been indicted. There is no 
statute in the law of Georgia giving the De- 
fendant the right to compulsory legal process 
which will require the State to advise the 
Defendant of the basis on which the State 
intends to attempt to prove that the Defendant 
is guilty of the crime for which he has been 
indicted. The absence of any such statutory 
or other law in Georgia, together with the 
indigency of the Defendant and the failure of 
the Court to provide the Defendant with re- 
sources to make his own independent investi- 
gation into certain scientific evaluations    



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 R

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eman filed a writ- 

n to Request the 

ologist or Other 

Defense Counse] 
The motion a]- 

1) petitioner was 

‘ormed that the vari- 
fence tend to connect 
the crime for which 
gh defendant under- 
the tests performed 
do not conclusively 
~fendant, but rather 
neone similar to de- 

1s counsel are suffi- 

determine whether 

s performed by the 
rious pieces of phys- 
e, conclusive, or ex- 

lerstands that there 
can be run which 
whether or not the 

ose from defendant, 

r his counsel have 

xpertise to perform 

not effectively pre- 
ndant without the 

ness to advise him 
xaminations run by 
1 judicial agencies 
+ made for the De- 
to him the kind of 
flable to the State 
aboratory in order 
the validity of and 
hich have been run 
s of which may be 
against the defend- 

ia, Defendant has 

)T pre-arraignment 

:nt that the state is 

formation which 

Defendant or miti- 

at in the crime for 

ted. There is no 

gia giving the De- 
Isory legal process 
ate to advise the 
+ which the State 

that the Defendant 

which he has been 
‘ny such statutory 
together with the 
and the failure of 
‘efendant with re- 
dependent investi- 
itific evaluations 

  

MOORE v. KEMP 715 
Cite as 809 F.2d 702 (11th Cir. 1987) 

indigent; (2) petitioner had been indicted 

for rape and murder; (3) the State had 

assembled various items of physical evi- 

dence including a gun, shoes, clothing, ho- 

siery, foot castings, and had taken from 

the defendant samples of his blood, saliva, 

and hair that may have been examined by 

the Georgia crime lab; (4) some of these 

items of physical evidence tended to con- 

nect petitioner, or a person with physical 

characteristics similar to his, with the com- 

mission of the charged crimes; (5) defense 

counsel could not determine without the 

assistance of an expert whether any tests 

performed by the crime lab were complete 
or conclusive; and (6) defense counsel be- 

lieved that a test could be performed on 

hair samples that “might conclusively 

prove whether or not the hair samples 

found [by the police at the scene of the 

murder] are those from defendant.” 

At a motions hearing, also held on April 

15, defense counsel called the court’s atten- 

tion to his motion for the appointment of an 

expert and, when asked by the court if he 

had anything to say in support of the mo- 

tion, responded: “I think everything that I 

have relative to this would be contained in 

the motion.” Shortly thereafter, the court 

recessed the hearing to give defense coun- 

sel further time to prepare a motion to 

suppress evidence the State had obtained 

during the search of petitioner's residence 

on January 15, 1977, five weeks after the 

murder. Because the court desired to rule 

on the motion to suppress before it ruled 

which form the basis of the State's case, make 
it impossible for the Defendant and his coun- 
sel to adequately prepare a defense to the 
charges against the Defendant. 

10. 

The absence of any such statutory or other 
law in the State of Georgia and the absence of 
any procedure whereby the Court can be re- 
quired to make available to an indigent de- 
fendant the same basic resources which are 
available to the State for the purpose of scien- 
tific evaluation an expert testimony constitute 
a violation of Defendant's right to procedural 
due process of law under the Fifth and Four- 
teenth Amendments to the Constitution of the 
United States. A fundamental fairness re- 
quired by the Fifth and Fourteenth Amend- 
ments to the Constitution are impossible to 
fulfill in Defendant's case for the reasons 

on petitioner's motion for an expert, the 

court did not at that time rule on the mo- 

tion for an expert. 

At the next hearing, held on May 4, 1977, 

the State called Sheriff Bittick to rebut the 

defense’s claim that the warrant issued for 

the search of petitioner's home was not 

supported by probable cause. From the 

sheriff’s testimony, Judge Sosebee learned 

that footprints found near the victim's 

body appeared to have been made by shoes 

with a molded, treadless sole, such as a 

“Hush Puppy” brand shoe, and that a pair 

of “Hush Puppy” shoes matching the size 

of the footprints discovered at the murder 

scene had been found in petitioner's home 

five weeks later. Following the sheriff's 

testimony, the court denied the motion to 

suppress. The following discussion then 

ensued. 

BY MR. FREEMAN: I think my next 

motion was a motion to request the 

Court to appoint an expert witness and 

incorporated in that was the plea in 

abatement. 

BY THE COURT: Plea in abatement 

on what grounds? 

BY MR. FREEMAN: Well, it's gener- 

ally stated. I think in trying to para- 

phrase the motion, we contend that we're 

entitled because of the peculiar circum- 

stances of this case, we're entitled to an 

expert witness to assist us in deciphering 

evaluations made by the Crime Lab or 

possibly conducting other tests on their 

own. We recognize, apparently, that 

hereinabove set forth and any trial of the 
Defendant on this indictment will, for these 
reasons, violate his rights under the due pro- 
cess clause of the Fifth and Fourteenth 
Amendments to the Constitution and will 
deny him equal protection of the laws under 
the Fourteenth Amendment of the Constitu- 
tion of the United States. 
WHEREFORE, Defendant moves the Court 

to appoint a private, independent crimi- 
nologist to advise and assist the Court ap- 
pointed Attorney in the conduct of his de- 
fense, and in the absence. of such appoint- 
ment, Defendant prays that the Court inquire 
into this his plea in abatement, taking evi- 
dence on the questions raised herein if neces- 
sary, and that the indictment against the De- 
fendant be quashed and the charges against 
the Defendant be dismissed.  



  

716 

there’s no statutory right for this, but 
argue to the Court that an absence of 
such a statutory right to obtain an expert 
witness or procedure where we can have 
this made available to us, constitutes a 
procedural and due process violations and 
that the absence of this is a constitution- 
al question and that the indictment 
should be abated because there’s no stat- 
utory arrangement where this can be 
granted.!5 

BY THE COURT: Is that all on that 
motion? 

BY MR. FREEMAN: Yes, sir, it’s all 
pretty well set out in the motion, I be- 
lieve, Your Honor. 

BY THE COURT: Does the State have 
anything else that you want to say in 
response to this particular motion? 

BY MR. WALDREP: No, sir, Your 
Honor. Of course, the State has expert 
witnesses or people that are expert in 
these fields employed to do these investi- 
gations. They don’t actually represent— 
work for us or work for the defendant, 
they just analyze these items when 
they're sent to them at the State Crime 
Laboratory and whatever the results are, 
that’s what they are. We say, of course, 
that he doesn’t have any right to have 
someone else appointed and actually, 
when you really look to the substance of 
it, I don’t know who the Court would 
appoint to do something like that and the 
only people that the State to do those 
type things are the people at the Crime 
Laboratory. 

BY THE COURT: The Court will over- 
rule that motion in its entirety. 

15. It is apparent from this colloquy and peti- 
tioner’s motion for the appointment of a crimi- 
nologist or other expert, see supra note 14, that 
defense counsel was under the impression that 
Georgia law precluded the court from granting 
his motion even if the due process clause of the 
fourteenth amendment required that it be grant- 
ed. This may explain counsel's failure to make 
the sort of showing we find necessary. 

We are not convinced that the trial judge 
would have denied petitioner the provision of 
expert assistance had counsel made a more sub- 
stantial demonstration of need. Although Geor- 
gia statutory law does not give indigent defend- 

809 FEDERAL REPORTER, 2d SERIES 

Several minutes after this discussion the 
court took a brief recess. When the court 
was reconvened, defense counsel made the 
following statement: 

BY MR. FREEMAN: Your Honor, 
could I put something else in the record 
before we get on to the Brady motion? 
In connection with the motion to appoint 
a criminologist which the Court has al- 
ready overruled, I didn’t have this letter 
with me, didn’t have it in front of me at 
the time but the District Attorney was 
stating that there wasn’t anybody avail- 
able that could be appointed. I just 
wanted to state in our place that we do 
have somebody that’s available, is Dr. 
W.L. Woodford, 585 Lakeshore Drive, 
N. E., Atlanta, and who, we think, would 
charge approximately $1500.00 to make 
some of these tests and perform some of 
this analyses, so we do have someone 
that’s available, if the Court had seen fit 
to appropriate the money for it. I just 
wanted to put that in the record. 

Petitioner never renewed his motion for 
the appointment of an expert either prior to 
or during his trial. In determining the 
merits of petitioner's request for expert 
assistance, therefore, we consider only the 
facts available to Judge Sosebee on May 4, 
when he ruled on petitioner's motion for 
the appointment of an expert. 

The facts available to Judge Sosebee 
came from four sources: the transcript of 
petitioner's January 24, 1977 committal 
hearing before Judge Whitmire: the tran- 
script of the testimony Sheriff Bittick gave 
at Roosevelt Green's committal hearing" 
held the same day; 16 the evidence present- 

ants a right to obtain expert witnesses at govern- 
ment expense, we find nothing in Georgia case 
law, and have been cited to nothing, that would 
have precluded the trial judge from granting 
such assistance had he concluded that not to do 
so would create a reasonable probability that 
petitioner would not receive a fair trial. 

16. Although Judge Whitmire held both petition- 
er's and Roosevelt Green's committal hearings, 
as. we have indicated, see supra note 12 and 
accompanying text, the transcript of petitioner's 
hearing and the transcript of Sheriff Bittick's 
testimony at Green's hearing were made a part 
of the record before Judge Sosebee. We there-    



is discussion the 

When the court 

ounsel made the 

Your Honor, 
blse in the record 

e Brady motion? 

otion to appoint 
he Court has al- 

t have this letter 

n front of me at 

ct Attorney was 

't anybody avail- 

pointed. I just 
place that we do 

available, is Dr. 

akeshore Drive, 

we think, would 

1500.00 to make 

perform some of 

0 have someone 

ourt had seen fit 

y for it. I just 
e record. 

d his motion for 

rt either prior to 

determining the 
uest for expert 

tonsider only the 

lsebee on May 4, 
er’s motion for 

ert. 

Judge Sosebee 

he transcript of 
1977 committal 

tmire; the tran- 

riff Bittick gave 

mittal hearing: 
vidence present- 

itnesses at govern- 
g in Georgia case 
othing, that would 

ge from granting 
ded that not to do 

le probability that 
a fair trial. 

held both petition- 
pbmmittal hearings, 
pra note 12 and 
ript of petitioner's 

pf Sheriff Bittick's 
were made a part 
hsebee. We there- 

MOORE v. KEMP 717 
Cite as 809 F.2d 702 (11th Cir. 1987) 

ed at the May 4, 1977 suppression hearing 

before Judge Sosebee; and petitioners 

written motion for the appointment of a 

criminologist or other expert. The tran- 

script of petitioner’s committal hearing de- 

scribed the murder scene and how Ms. Al- 

len died. It also contained the testimony of 

the key prosecution witness, Thomas Pas- 

by, who related what petitioner had told 

him about the robbery of the Majik Market 

and the kidnapping, rape, and murder of 

Ms. Allen. The transcript of Sheriff Bit- 

tick’s testimony disclosed that Linda Bar- 

ton, the serologist, had tested seminal fluid 

removed from the victim's body, that the 

fluid had come from a person possessing 

type A blood, and that Roosevelt Green had 

type B blood. It also revealed that Barton 

had determined that Roosevelt Green’s hair 

was present on some gloves the police 

found at the murder scene.” The May 4 

suppression hearing informed Judge Sose- 

bee that footprints found near the victim’s 

body appeared to have been made by shoes 

similar to those found in petitioner's bed- 

room when the police searched his resi- 

dence. 

Petitioner’s motion and the statements 

his lawyer made in support of the motion *® 

provided Judge Sosebee with little addition- 

al information about the State’s case and 

petitioner's need for expert assistance. 

Liberally read, the motion informed the 

court that the State had collected various 

items of evidence from the crime scene, the 

petitioner's home, and the petitioner's body 

(blood, saliva, hair) and that some of this 

evidence may have been examined at the 

state crime lab. The motion also informed 

fore assume, although the record is silent on the 
point, that Judge Sosebee had read these tran- 
scripts by the time he ruled on petitioner's re- 
quest for expert assistance. 

17. Sheriff Bittick may have been mistaken when 
he testified at Green's committal hearing that 
Barton had made this determination. At trial, 
she gave no such testimony; rather, Warren 
Tillman, the microanalyst, explained the results 
of the tests performed on the various hair sam- 
ples in the case. 

18. Petitioner's attorney had two opportunities 
prior to Judge Sosebee’s ruling at the conclusion 

the court that certain undescribed tests 

performed by experts at the crime lab may 

have buttressed the State’s claim that peti- 

tioner was present when the rape and mur- 

der took place. 

In sum, the information before Judge 

Sosebee from these four sources indicated 

the following: first, that the State, on the 

basis of petitioner's admissions to Thomas 

Pasby, could establish that petitioner and 

Roosevelt Green robbed the Majik Market 

and kidnapped, raped, and murdered Ms. 

Allen; second, that the hair tests per- 

formed by Linda Barton placed Green at 

the scene of the murder, but that the tests 

she performed on seminal fluid taken from 

the victim's body cast some doubt on 

whether he had raped the victim; third, 

that someone at the state crime lab, com- 

paring plaster casts of footprints at the 

murder scene with shoes later found in 

petitioner's bedroom, could testify that a 

person wearing shoes like petitioner's may 

have been present when Ms. Allen was 

murdered. The information did not dis- 

close, and petitioner's counsel did not spec- 

ulate about, any connection between peti- 

tioner’s blood, saliva, and hair and the 

crimes in question; nor did counsel indicate 

what tests the state crime lab may have 

conducted on those samples. All Judge 

Sosebee knew was that petitioner's lawyer 

wanted an expert of some kind to review 

any tests the state crime lab may have 

performed and to conduct an unspecified 

number of tests that counsel declined to 

describe. 

We do note that, on April 12, 1977, three 

days before petitioner's attorney presented 

of the May 4 hearing—the May 4 hearing itself 
and the April 15 hearing—to inform the court 
about these matters and to urge the court to 
appoint an expert; yet, he remained silent. 

19. Linda Barton's test of the seminal fluid taken 

from the victim's body indicated that the fluid 
came from a male with type A blood. Green 
had type B blood; thus, the fluid she examined 
could not have come from him. Green, how- 

ever, could still have raped the victim; the 
record does not show whether seminal fluid 
existed that Barton did not test. 

ev
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718 

his motion for the appointment of an expert 
to Judge Sosebee, the prosecutor gave him 
copies of the reports he had received from 
the state crime lab and the names of the 
experts who had authored the reports and 
would testify for the prosecution. Inexplic- 
ably, petitioner's counsel never informed 
Judge Sosebee what those reports disclosed 
or the areas of expertise of the persons 
who had made them and, presumably, 
would testify at trial. Counsel also failed 
to inform Judge Sosebee whether he had 
interviewed the State’s experts about any 
tests they may have performed and, if not, 
whether they would be amenable to such 
interviews. A thorough study of the crime 
lab reports and interviews with the authors 
of the reports may have eliminated any 
need for expert assistance. At the very 
least, if defense counsel had been more 
diligent in his study and more specific in 
his motion, Judge Sosebee would have been 
more fully apprised of the prosecutions 
case and of the defense’s need, if any, for 
expert assistance. 

We also observe that petitioner did not 
advise the court about the kind of expert 
he desired or the role the expert would 
play. The motion merely requested the 
court to appoint a “criminologist or other 
expert witness.” It is clear, however, that 
petitioner did not desire a “criminologist” 20 
but instead wanted an expert or experts 
whose expertise matched that of each of 
the State's experts. Of course, because 
petitioner did not inform the court about 
the expertise of any of the State’s witness- 
es, the court could not have known exactly 
what type of expert petitioner needed or 

20. A criminologist is a person who specializes in 
criminology. Criminology is defined as “the 
scientific study of crime as a social phenome- 
non, of criminal investigation, of criminals, and 
of penal treatment.” Webster's Third New Inter- 
national Dictionary 537 (1976). 

21. At trial, petitioner's attorney said nothing to 
the court indicating that he needed expert assist- 
ance to cross-examine the State's experts, War- 
ren Tillman and Linda Barton. See supra note 
15. In fact, he effectively and comprehensively 
cross-examined these experts at length. It can 
be inferred from counsel's conduct that the trial 
court's refusal to appoint an expert did not deny 

809 FEDERAL REPORTER, 2d SERIES 

requested. On May 4, after the court had 
heard argument of counsel and ruled on 
petitioner’s motion, defense counsel did of- 
fer the name of an expert who “was avail- 
able to be appointed,” but he did not inform 
the court of that person’s expertise or what 
he could have contributed to the defense. 

Petitioner's motion, considered in the 
light of the record before Judge Sosebee 
when he made his dispositive ruling, failed 
to create a reasonable probability that ex- 
pert assistance was necessary to the de- 
fense and that without such assistance peti- 
tioner’s trial would be rendered unfair. 
We accordingly hold that the trial court did 
not err in denying petitioner’s motion. 

Having concluded that the trial court did 
not err in denying petitioner's motion for 
the appointment of an expert, we need not 
determine whether at trial petitioner's fail- 
ure to obtain the requested assistance in 
fact deprived him of the ability to present 
his defense.?! Thus, we affirm the district 
court’s rejection of petitioner's due process 
claim. 

III. 

As we have indicated in Part L.A., supra, 
the State's key witness was Thomas Pasby. 
In fact, without Pasby’s testimony, it is 
doubtful whether the case would have gone 
to the jury. There were no eyewitnesses to 
the robbery of the Majik Market or to the 
kidnapping, rape, and murder of Ms. Allen, 
and the physical evidence and expert opin- 
ion testimony the prosecution presented 
merely suggested that petitioner could 
have been a perpetrator of these crimes. 

petitioner a reasonable opportunity to present 
his case. 

22. Without Pasby’s testimony, the State's case 
was purely circumstantial: petitioner made an 
incriminating statement to Johnny Johnson 
three days prior to the robbery, petitioner and 
Green were friends, and petitioner was seen in 
Cochran with Green on the afternoon of the 
robbery. The expert testimony relating to the 
physical evidence recovered from petitioner's 
home and from the crime scene did not prove 
that petitioner was a participant in the crimes. 
The testimony of Warren Tillman established 
that shoes similar in size and tread design to the   

 



ation now ad- 

as no reason to 

Mr. Allen in 

had put on his 

hearing. The 

g consisted of 

E innocence, his 

ther’s plea for 

y, purportedly 
Haughter’s lack 

e, did not “re- 
se adduced at 

Furthermore, 

pner’'s defense 
ras not present 

He testified 
huestion, after 

pf alcohol, he 

was therefore 
occurred. At 

ioner reassert- 

d any involve- 

his testimony, 
ble for him to 

'as present at 

bd robbery or 

se Ms. Allen 

left with him. 

'e been totally 

testimony at 

as never ad- 

scause it was 

ould not have 

llen’s testimo- 

yut it, and his 

nh admitted for 

substance of 

have been ad- 

ficing purpose 

another day. 

the district 

r's Ake claim 

Part II and 

sition of the 

opinion. For 

I, we remand 
for an eviden- 

Brady/Giglio 
at claim, and 

  

MOORE v. KEMP 735 

Cite as 809 F.2d 702 (11th Cir. 1987) 

depending on its ruling thereon, the district 

court shall issue a writ of habeas corpus 

directing the State either to grant petition- 

er a new trial or to grant him a new 

sentencing proceeding. 

AFFIRMED in part; REVERSED in 

part; and REMANDED, with instructions. 

RONEY, Chief Judge, concurring in part, 

specially concurring in part, and dissenting 

in part, in which FAY, Circuit Judge, joins: 

I concur in the judgment which reverses 

the denial of habeas corpus relief on the 

instruction issue, for the reasons set forth 

in Judge Tjoflat’s opinion. 

I concur in reinstating the panel opinion 

on all other claims not discussed in Judge 

Tjoflat’s opinion. 

I specially concur in the denial of relief 

on the Ake ground for the reasons set 

forth in both Judge Tjoflat’s opinion and 

Judge Hill's opinion. 

I dissent from the grant of relief on the 

Brady/Giglio issue for the reasons set 

forth in Judge Hill's dissent. 

I would not grant relief on the issue 

concerning the father’s testimony for the 

reasons set forth in Judge Hill's opinion for 

the panel, in which the discussion was con- 

cluded with: 

Thus, it appears that the prosecution 

properly presented evidence of character- 

istics of the victim to the jury. In the 

brief evidence taken, the prosecution did 

not undertake to demonstrate the racial, 

ethnic, or other forbidden characteristic 

of any party. We cannot say that the 

trial judge's balancing of the relevancy 

of Mr. Allen’s testimony against its prej- 

udice was constitutionally faulty. We 

are not prepared to hold that it violates 

the constitution for the jury to know who 

it was that was the victim of murder. 

Moore v. Zant, 722 F.2d 640, 646 (11th 

Cir.1983). To the extent the judgment of 

the Court denies relief on this issue, I 

concur; to the extent it grants relief, I 

dissent. 

In sum, I would reverse the district 

court's judgment and remand with instruc- 

tions to grant relief on the instruction is- 

sue, but deny relief on all other claims. 

GODBOLD, Circuit Judge, dissenting in 

part and concurring in part: 

On the Ake issue, I respectfully dissent 

from the opinion and holding of the court 

(Part II of the opinion by Judge Tjoflat) 

and I join in Part I of the dissenting opin- 

jon by Judge Johnson. 

On the Giglio issue, I concur in the opin- 

ion and holding of the court (Part III of the 

opinion by Judge Tjoflat). 

On the jury instruction issue, I concur in 

the opinion and holding of the court (Part 

IV of the opinion by Judge Tjoflat). 

On the comparable worth issue, I concur 

in Part II of the dissenting opinion by 

Judge Johnson except the part thereof re- 

garding the jury argument concerning de- 

terrence. 

HILL, Circuit Judge, concurring in part 

and dissenting in part, in which RONEY, 

Chief Judge, FAY and EDMONDSON, Cir- 

cuit Judges, and HENDERSON, Senior Cir- 

cuit Judge, joins: 

I concur in the judgment of the court, 

insofar as the sentence of death is con- 

cerned. Without reaching the constitution- 

ality of the instructions given in this case 

had the judge not misspoke and instructed 

the jury that if they found an aggravating 

circumstance their verdict “would be” 

death, 1 agree that the instructions that 

were given do not pass constitutional mus- 

ter. 1 also agree that petitioner has not 

shown that, under the Supreme Court's 

recent decision in Ake v. Oklahoma, 470 

US. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 

(1985), he was constitutionally entitled to 

the assistance of non-psychiatric experts to 

aid him in his defense. I write separately 

on that issue because my analysis of that 

question differs somewhat from that of the 

majority opinion. I must respectfully dis- 

sent, however, from the majority’s holding 

that petitioner is entitled to an evidentiary 

hearing on the Brady/Giglio claim he 

presents. I address petitioner's Ake claim   

 



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736 809 FEDERAL REPORTER, 2d SERIES 

in Part I and the Brady/Giglio claim in 

Part II. 

I. NON-PSYCHIATRIC EXPERT 

ASSISTANCE UNDER AKE v. 

OKLAHOMA 

The majority opinion concludes that peti- 

tioner’s due process rights were not violat- 

ed by the trial court’s refusal to appoint 

experts to assist him in the presentation of 

his defense because he failed to make the 

requisite showing that an expert would aid 

the defense or that the denial of such as- 

sistance would result in a fundamentally 

unfair trial. See Ake v. Oklahoma, 470 

U.S. 68, 82-83, 105 S.Ct. 1087, 1096-97, 84 

L.Ed.2d 53 (1985); see also Caldwell wv. 

Mississippr, 472 U.S. 320, 323 n. 1, 105 
S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 321 (1985). 

I would not turn the analysis of this issue 

on that conclusion. Petitioner has proba- 

bly shown that expert assistance would 

have aided his defense. I would thus pro- 

ceed to an analysis of whether, under Ake, 

petitioner was constitutionally entitled to 

the expert assistance he sought. 

At the outset I observe that the holding 

in Ake is simply that where the defendant 

makes a pre-trial showing that his sanity is 

likely to be a significant issue in the case 

he is entitled to the assistance of an inde- 

pendent psychiatrist at state expense if he 

cannot afford one. The issue of sanity vel 

non is a peculiar issue in criminal law, and 

the holding in Ake was principally motivat- 

ed by the Court’s recognition that to prove 
a valid insanity defense one must necessar- 

ily present the testimony of psychiatrists. 

Analyzing the probable value of the psychi- 

atric assistance sought in Ake and the risk 

of error in the proceeding if the assistance 

were not offered, the Supreme Court obvi- 

ously considered essential to its decision 

1. The Court was careful to note, however, that 
such a defendant is not constitutionally entitled 
to choose a psychiatrist of his own personal 
liking or receive funds to hire his own. Rather 
the Court required only that he be provided 
access to a competent, independent psychiatrist 
to assist him in proving his defense. Ake, 470 

the “reality that we recognize today, name- 

ly, that when the State has made the de- 

fendant’s mental condition relevant to his 

criminal culpability and to the punishment 

he might suffer, the assistance of a psychi- 

atrist may well be crucial to the defend- 

ant’s ability to marshal his defense.” Ake, 

470 U.S. at 80, 105 S.Ct. at 1095. The 

court commented at length upon the arcane 

nature of the inquiry into whether one is 

legally insane, noting in particular the in- 

dispensable nature of psychiatric testimony 

in presenting an insanity defense. The is- 

sues involved “inevitably are complex and 

foreign” to the common knowledge of ju- 

rors, so that “the testimony of psychia- 

trists can be crucial and ‘a virtual necessity 

if the insanity plea is to have any chance of 

success.”” Id. at 81, 105 S.Ct. at 1096. 

The Court therefore held that the state's 

financial interests must, as a matter of 

constitutional law, yield to the interests of 

the state and the defendant in the accuracy 

of the criminal proceedings in those cases 

in which the defendant can demonstrate to 

the trial court before trial that his sanity is 

likely to be a significant factor in his de- 

fense. Id. at 83-84, 105 S.Ct. at 1097.! 

This, of course, is not a case involving 

the issue of sanity vel non. The defendant 

interposed a plea of not guilty based on the 

facts of the offense, not on the condition of 

his mind. In Ake, the denial of the indi- 

gent defendant’s request for psychiatric as- 

sistance had the necessary effect of almost 

completely precluding him from presenting 

any claim of insanity to the jury, regard- 
less of the validity of the defense. In this 

case, although it appears that appellant 

might have been aided at trial by the assist- 

ance of experts of his own, his inability to 

obtain their services did not have the neces- 

sary effect of preventing him from assert- 

U.S. at 83, 105 S.Ct. at 1097; see also Martin v. 

Wainwright, 770 F.2d 918, 933-35 (11th Cir. 
1985). This is because the constitutionally cog- 
nizable objective served by the provision of a 
psychiatrist's assistance is greater accuracy in 

the judicial proceedings, not a greater likelihood   
 



ze today, name- 

s made the de- 

relevant to his 

the punishment 

nce of a psychi- 

to the defend- 

defense.” Ake, 

at 1095. The 

lipon the arcane 

whether one is 

irticular the in- 

atric testimony 
fense. The is- 

e complex and 

owledge of ju- 

ny of psychia- 
irtual necessity 
e any chance of 

S.Ct. at 1096. 

hat the state's 

s a matter of 

he interests of 

in the accuracy 
in those cases 

demonstrate to 

hat his sanity is 
Lctor in his de- 

S.Ct. at 1097.1 

case involving 
The defendant 

y based on the 

he condition of 

hal of the indi- 

psychiatric as- 

ffect of almost 

fom presenting 
P jury, regard- 
fense. In this 

that appellant 

1 by the assist- 

his inability to 
ave the neces- 

from assert- 

ee also Martin v. 

33-35 (11th Cir. 
stitutionally cog- 
= provision of a 

ter accuracy in 
eater likelihood 

MOORE v. KEMP 737 
Cite as 809 F.2d 702 (11th Cir. 1987) 

ing and supporting his defense? A valid 

claim by the defendant that he was not at 

the scene of the crime ordinarily may be 

supported effectively at trial in a wide vari- 

ety of ways. Regardless of the nature of 

the prosecution’s proof on such an issue, 

expert testimony constituted but one of the 

many effective means by which such a 

claim might be substantiated. In this case, 

appellant offered little but his own testimo- 

ny to rebut the evidence presented by the 

prosecution to show that he was at the 

scene of the crime when it occurred and 

had committed it. I certainly would not 

hold, however, that simply because appel- 

lant’s defense was weak on the facts and 

methods of proof otherwise available to 

him, he was constitutionally entitled to the 

assistance of experts to help him develop 

and support his theory of the case before 

the jury. Further, appellant was not enti- 

tled to the assistance of his own experts 

simply because the state relied in part upon 

expert testimony to prove its case. The 

purpose of providing expert assistance to 

the defendant is not to even the score. The 

accuracy-enhancing value of affording ex- 

pert assistance to the defendant and the 

risk of an erroneous determination of guilt 

if such assistance is not provided are not 

increased significantly in a case like appel- 

lant’s by the extensive use of experts by 

the state or by the defendant's inability to 

present any other evidence in support of 

the defense he chooses to assert. Those 

circumstances might render expert assist- 

ance to such a defense helpful, but they do 

not render such assistance significantly 

more essential to the accurate determina- 

tion of whether the defendant committed 

the crimes with which he was charged. 

that the defendant will succeed with his defense. 

See Ake, 470 U.S. at 77-83, 105 S.Ct. at 1094-97. 

2. Whether the defendant in fact would have 

benefitted substantially from the assistance of 

experts of his own is not free from doubt. In- 

deed, such expert testimony as was offered was 

less than conclusive, and both direct and cross- 

examination of the state's expert witnesses am- 

ply demonstrated the limited and qualified na- 

ture of their opinions. A reading of this record 

To extend Ake as appellant suggests 

would impose an extraordinarily far-reach- 

ing and costly burden on the states and 

their taxpayers. There are obviously many 

important issues in criminal trials whose 

presentations could conceivably be en- 

hanced by expert testimony. Ake however, 

is a narrow holding premised upon the pe- 

culiar role psychiatric testimony necessar- 

ily plays in the assertion of an insanity 

defense or, in a capital sentencing proceed- 

ing, evaluating mental condition as an ag- 

gravating or mitigating circumstance. Ab- 

sent further direction from the Supreme 

Court, I am convinced that unless non-psy- 

chiatric expert assistance is, because of the 

nature of the issue on which it is sought, as 

vital to resolution of the issue as psychiat- 

ric assistance was in Ake, the Constitution 

does not require that it be provided in a 

criminal trial. I therefore agree with the 

majority that petitioner is not entitled to an 

evidentiary hearing in the district court on 

his claim that his constitutional rights were 

violated when he was tried following the 

trial court's refusal to provide him with 

funds to hire experts to aid him in the 

formulation and presentation of his de- 

fense. 

II. THE BRADY/GIGLIO CLAIM 

Moore claims that his rights under Bra- 

dy v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 

10 L.Ed.2d 215 (1963), and Giglio v. United 

States, 405 U.S. 150, 92 S.Ct. 763, 31 

L.Ed.2d 104 (1972), were violated when the 

prosecutor failed to reveal certain informa- 

tion that would have aided the defense in 

its attempts to undermine the credibility of 

Thomas Pasby. This claim was litigated in 

the state courts, but in those proceedings 

Pasby’s probation file was not made avail- 

persuades me that experts who might have been 

available to the defendant would have done 

little more to limit the force of the testimony of 

the state's experts than the latter, in candor, did 

themselves. As my analysis indicates, however, 

I am willing to assume for the purposes of 

determining appellant's constitutional claim 

that the assistance to which he now claims he 

was entitled in fact would have done him some 

good.   

 



  

SESH CE nt gt tn a ne — Baty Dra 

740 

Pasby says that he didn’t talk about this 
case until after he’d been in jail several 
weeks or several days, some period of 
time, and in any case, he was a suspect 
while he was in jail, and that when he 
talked about it, he talked about it after 
Roy Olinger—you remember when I read 
that statement from Olinger, what he 
told Pasby, that unless he told what they 
wanted him to tell, told the truth, told 
something, that he was going to get the 
same punishment as everybody else did. 
He didn’t change his story; up until that 
point, he had told them he didn’t know 
anything about it. He didn’t say he 
knew anything about it until after they 
told him they were going to put pressure 
on him. Roy Olinger was on the witness 
stand yesterday, I called him for direct 
examination. There was not a single 
question asked him by the State to 
show—there was no effort made to deny 
that he actually told Pasby that. If he 
didn’t tell him that, the State could—he 
could have told them. I think the only 
conclusion is that he actually did tell 
Pasby, threatened him that he was going 
to be punished for it himself unless he 
told about it. 

Thus Pasby was heavily impeached with 
the fact that he was a suspect in this very 
murder and had failed to implicate petition- 
er until he was threatened with prosecution 
himself. The prosecutor did not address 
directly the challenge posed by defense 
counsel's impeachment of Pasby in that 
manner, focussing instead on the physical 
and testimonial evidence tending to corrob- 
orate Pasby’s testimony. Yet the jury ob- 
viously believed Pasby. Thus defense 
counsel was unable to influence the jury’s 
assessment of Pasby’s credibility with the 
unchallenged assertion that Pasby’s testi- 
mony was motivated at least in part by the 
fear that he, himself, might be prosecuted 
for the Allen murder. In light of that fact, 
I cannot believe that the jury might have 
been moved by the argument that Pasby’s 
testimony was somehow influenced by his 
probationary status at the time he testified 
or by any expectation of favorable treat- 
ment on any other charge. In short, if the 

EE NT Cd eA 

809 FEDERAL REPORTER, 2d SERIES 

jury did not believe Pasby was lying to 
avoid a murder prosecution, they surely 
would not have believed he was lying for 
any of the reasons petitioner suggests. 

It is important to me that prosecutors 
respect their obligations under Brady and 
Giglio, and I am willing to assume with the 
majority that the prosecutor in this case 
was under an obligation to turn over to the 
defense any information found in Pasby’s 
probation file that might have been useful 
to the defense in impeaching the witness at 
trial. I am deeply disturbed, however, by 
the prospect of a federal district court or- 
dering the release of a convicted murderer 
subject to retrial at this late date on the 
basis of circumstances as unlikely to have 
had anything to do with his confinement as 
those that have been alleged in this case. 
Because I cannot find there to exist a rea- 
sonable probability that the outcome of pe- 
titioner’s trial would have been affected by 
any of the information petitioner alleged 
was wrongfully withheld, I cannot agree 
with the majority that an evidentiary hear- 
ing is warranted on petitioner's Bra- 
dy/Giglio claim. From this portion of the 
majority's holding I therefore respectfully 
dissent. 

JOHNSON, Circuit Judge, concurring in 
part and dissenting in part, in which 
KRAVITCH and HATCHETT, Circuit 
Judges, join, and in which GODBOLD, Cir- 
cuit Judge, joins Part I and Part II in part, 
and in which ANDERSON and CLARK, 
Circuit Judges, join Part I: 

I join the majority’s opinion as to Sec- 
tions I, III, and IV, With deference, I 
disagree with its disposition of the Ake 
issue in Section II, and I would more 
squarely address the problems raised by 
certain testimony and by the prosecutor’s 
comments that the majority discusses in its 
Section V. 

I. The Ake Issue: 

In Ake v. Oklahoma, 470 US. 68, 105 
S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Su- 
preme Court considered whether the state  



f was lying to 
n, they surely 

was lying for 
oner suggests, 

pat prosecutors 

der Brady and 
ssume with the 

pr in this case 
urn over to the 

nd in Pasby’s 

ve been useful 

I the witness at 

d, however, by 

strict court or- 

icted murderer 

te date on the 

nlikely to have 

confinement as 

d in this case. 

to exist a rea- 

outcome of pe- 
en affected by 

itioner alleged 
| cannot agree 

[identiary hear- 

itioner’s Bra- 

portion of the 

re respectfully 

, concurring in 

art, in which 

ETT, Circuit 
ODBOLD, Cir- 
Part II in part, 
and CLARK, 

ion as to Sec- 

deference, I 

in of the Ake 

{l would more 

ems raised by 
e prosecutor's 

discusses in its 

U.S. 68, 105 

1985), the Su- 

Pther the state 

a Een oS, To Sa os a GA ei i SR Te Sa Gd ssi LST TL 
ei iid ha Tt a ln SS TL 

pi 

| 

MOORE v. KEMP 741 
Cite as 809 F.2d 702 (11th Cir. 1987) 

in a capital case is required, by the consti- 

tutional guarantee of due process of law, to 

provide an indigent defendant with a psy- 

chological expert when insanity is offered 

as a defense. Eight of the Justices so held. 

They gave express recognition to the tre- 

mendous effect that uncontested expert 

testimony generally has upon the fact find- 

er, id. at 81, n. 7, 105 S.Ct. at 1096, n. 7, 

and then held that “[w]hen the defendant is 

able to make an ex parte threshold show- 

ing to the trial court that his sanity is likely 

to be a significant factor in his defense, the 

need for the assistance of a psychiatrist is 

readily apparent. It is in such cases that a 

defense may be devastated by the absence 

of a psychiatric examination and testimo- 

ny....” Id. at 82-83, 105 S.Ct. at 1097. 

In identifying this constitutionally pro- 

tected right, the Court set forth a three- 

pronged test to be considered in determin- 

ing if an indigent capital defendant is enti- 

tled to state-paid expert assistance: 1) “the 

private interest that will be affected by the 

action of the State”; 2) “the governmental 

interest that will be affected if the safe- 

guard is to be provided”; and 3) “the prob- 

able value of the additional or substitute 

procedural safeguards that are sought, and 

the risk of an erroneous deprivation of the 

affected interest if those safeguards are 

not provided.” 470 U.S. at 77, 105 S.Ct. at 

1094. It is clear from the Court's analysis, 

however, that in capital cases prongs one 

and two will always yield identic results: 

the private interest “is almost uniquely 

compelling,” “obvious and weighs heavily 

in our analysis;” the state’s interest is 

coincident with that of the individual—in an 

accurate and fair verdict. Id. at 77-80, 105 

S.Ct. at 1094-95. 

1. Other circuit courts have considered favorably 

the question of constitutional entitlement to 

non-psychiatric experts in capital cases. 

Williams v. Martin, 618 F.2d 1021, 1025-26 (4th 

Cir.1980) (“There can be no doubt that an effec- 

tive defense sometimes requires the assistance 

of an expert witness.... Moreover, provision 

for experts reasonably necessary to assist indi- 

gents is now considered essential to the opera- 

tion of a just judicial system.”); Mason v. Arizo- 

na, 504 F.2d 1345, 1351 (9th Cir.1974) (“[The 

effective assistance of counsel guarantee of the 

Due Process Clause requires, when necessary, 

Thus it is solely upon the third factor, 

the probable value of the expert assistance 

and the risk of error attendant upon its 

denial, that courts will focus in deciding 

these questions. In Ake the Supreme 

Court noted six factual criteria that dictat- 

ed the need for state appointed assistance 

in Ake’s case. Id. at 84-88, 105 S.Ct. at 

1098-99. But the Court was careful to 

note, in identifying these factors, that it 

was setting forth neither a touchstone nor 

a catechism. Id. at 86, n. 12, 105 S.Ct. at 

1099, n. 12. The Court reaffirmed its un- 

willingness to state a precise test in that 

same term in Caldwell v. Mississippi, 472 

U.S. 320, 323-324, n. 1, 105 S.Ct. 2633, 2637, 

n. 1, 86 L.Ed.2d 231 (1985) (rejecting request 

for criminal investigator, fingerprint expert 

and ballistics expert because petitioner “of- 

fered little more than undeveloped asser- 

tions that the requested assistance would 

be beneficial. ...”). 

Caldwell, read in conjunction with Ake, 

teaches us several things. First, it reaf- 

firms that the obvious object of the Court’s 

reticence in Ake was the need for flexible 

decisionmaking tailored to the facts of a 

given case. Capital cases do not lend them- 

selves to rigid, ritualistic formulae. Sec- 

ond, it belies the state’s suggestion that 

Ake must be read narrowly and confined to 

its facts. Caldwell’s footnote 1 suggests 

that the Court was willing to entertain 

extending Ake in the fashion Moore re- 

quests today. Rather than rejecting the 

claim out of hand as inappropriately 

stretching Ake to a different question, the 

Court refused to grant relief only because 

Caldwell failed to make a showing of suffi- 

cient need under Ake’s flexible standard.’ 

the ... appointment of investigative assistance 

for indigent defendants in order to insure effec- 

tive preparation of their defense by their attor- 

neys.”), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 

43 L.Ed.2d 412 (1975); cf. Westbrook v. Zant, 

704 F.2d 1487, 1494-97 (11th Cir.1983) (state 

must furnish psychiatric or psychological ex- 

perts to indigent capital defendant if evidence 

not available from other sources is necessary to 

prove mitigating circumstances); Knott v. Ma- 

bry, 671 F.2d 1208, 1212-13 (8th Cir.1982) (fail- 

ure of counsel to obtain expert to contradict 

government witness may constitute “constitu- 

    

 



742 

The majority opinion today accepts, for 

the sake of argument, the proposition of 

extending Ake to non-psychiatric experts. 

Thus I believe that our query today is not 

whether Ake may be logically and appropri- 

ately extended to such experts. Rather we 

must decide two questions: A) how should 

courts decide whether a defendant is enti- 

tled to such assistance given the elastic 

rule that Ake molded; and B) whether 

Moore made a showing before the trial 

court of his need for such assistance suffi- 

cient to meet the measure of this test. The 

majority crafts such a test in its Section II, 

and then answers the second question in 

the negative. Because I believe that the 

majority's reading of Ake creates a prover- 

bial “Catch-22,” making it impossible for 

all but the most nimble (and prescient) de- 

fendant to obtain expert assistance under 

Ake, 1 would restructure the majority's 

test and then answer the second question 

affirmatively, based upon the record before 

us. 

A. 

The majority today attempts to bring this 

case under the aegis of Caldwell, arguing 

that Moore failed to make a showing of 

need for an expert that went beyond mere 

ipse dirit. The majority correctly views 

Ake and Caldwell as requiring a defendant 

seeking the assistance of an appointed ex- 

pert to show that a reasonable probability 

exists both that such an expert would be of 

assistance to his defense and that denial of 

tional flaw in the representation of a defend- 

ant....”). The former Fifth Circuit considered 

this question in Hoback v. Alabama, 607 F.2d 

680, 682 & n. 1 (5th Cir.1979), and said that, 

while there might be some situations where 

states could be required to furnish experts, that 

question need not be decided in that case. 

2. Nor can I accept the state's assertion that in 

order to justify appointment of experts the de- 

fendant must present “concrete evidence ... as 

to specifically what other information he could 

have obtained by the use of an independent 

expert, that was not available to him by an 

examination of the state's expert's [sicl....” 

Supplemental Brief of Appellee at 19-20. First, 

the Court in Ake imposed no such requirement 

of proof. Second, the state's crabbed reading 

belies the tone and spirit of the Supreme Court's 

809 FEDERAL REPORTER, 2d SERIES 

expert assistance would result in a funda- 

mentally unfair trial. However, the majori- 

ty engrafts upon that standard strict re- 

quirements that make relief unobtainable. 

The majority demands, as the price for a 

favorable ruling upon a request for assist 

ance, that the defendant provide a specific 

description of the expert desired and why 

the assistance of that expert is necessary. 

If assistance is needed to confront the pros- 

ecution’s case, the majority requires the 

defendant to detail both the nature of the 

prosecution’s case and how the requested 

expert would be useful in challenging that 

case. 

I cannot agree with this approach for 

two reasons. First, the standards the ma- 

jority creates actually contravene the flexi- 

ble approach announced in Ake and Cald- 

well. By mandating essential elements in 

applying Ake’s third prong, the majority 

does precisely what the Supreme Court de- 

clined to do: it determines which “of these 

factors, alone or in combination, is neces- 

sary to make [a] finding [that a defendant 

is entitled to state-provided expert assist 

ance)” 470 U.S. 86, n. 12, 105 S.Ct. at 

1099, n. 12. The majority thus impermissi- 

bly limits the interplay of factual considera- 

tions, unique to each case, that the Su- 

preme Court sought to preserve in deciding 

this question. 

Second, even accepting the legitimacy of 

any formal set of points for decision, the 

majority's standards are too exacting be- 

cause they require the defendant to pos- 

holding. There was no evidence in Ake to sug- 

gest that the expert the defendant sought would 

necessarily contradict state experts. Nor was 

there evidence that his witness would provide 

evidence that was not available from other 

sources or from cross-examining state witness- 

es. 

Experts are the “basic tools” necessary for the 

defendant to marshal his defenses. Experts as- 

sist, inter alia, in gathering and interpreting 

facts and drawing conclusions from them, in 

formulating strategies for cross-examining the 

state's experts, and in translating scientific jar- 

gon into terms understandable to the fact find- 

er. Ake, 470 U.S. at 77-82, 105 S.Ct. at 1094-96. 

The Supreme Court's concern was clearly more 

expansive than the state here admits.   
  
 



It in a funda- 

er, the majori- 

ard strict re- 

unobtainable. 
he price for a 

est for assist- 

ride a specific 

ired and why 

iS necessary. 

ront the pros- 

requires the 

nature of the 

he requested 
allenging that 

approach for 

dards the ma- 

ene the flexi- 

| ke and Cald- 

hl elements in 

the majority 

eme Court de- 

hich “of these 

tion, iS neces- 

t a defendant 

expert assist- 

105 S.Ct. at 

s impermissi- 

ual considera- 

that the Su- 

e in deciding 

legitimacy of 
- decision, the 

exacting be- 

ndant to pos- 

e in Ake to sug- 
nt sought would 
verts. Nor was 

; would provide 
ble from other 
1g state witness- 

ecessary for the 
ses. Experts as- 

hnd interpreting 
b from them, in 
s-examining the 
g scientific jar- 

to the fact find- 
S.Ct. at 1094-96. 
as clearly more 
mits. 

MOORE v. KEMP 743 
Cite as 809 F.2d 702 (11th Cir. 1987) 

sess already the knowledge of the expert 

he seeks. The Court in Caldwell required 

no more than that the defendant make a 

threshold showing of reasonableness. 

That standard requires only that the de- 

fendant make something more than “unde- 

veloped assertions that the requested as- 

sistance would be beneficial. ...” 472 U.S. 

at 324, n. 1, 105 S.Ct. at 2637, n. 1. But 

the majority goes beyond this and requires 

a defendant to make a full-fledged showing 

of an expert opinion that rebuts the state’s 

case. I have grave doubts whether a de- 

fendant can make the sort of particularized 

showing that the majority demands. 

For example, in this case Moore's counsel 

may well have known that in order to con- 

test evidence regarding vaginal swabbings 

from the victim he needed an expert. But 

how could he know if he needed a micro- 

biologist, an organic chemist, a urologist, a 

hematologist, or that which the state used, 

a serologist? How further could he specify 

the type of testing he needed without first 

hiring an expert to make that determina- 

tion? In this case one important question 

is whether Moore’s and Pasby’s semen has 

a high or low ‘“‘secretion” content. How 

could Moore’s attorney both know of and 

show to the court the existence of, as well 

as the need for, such tests without first 

obtaining the very advice he seeks the 

court provide. This is, I submit, a Catch- 

22 that few will surmount. 

A court should not deny relief summarily 

simply because the defendant cannot speci- 

fy the type of expert he needs. If physical 

evidence constitutes the bulk of the prose- 

cution’s case, the need for expert assist- 

ance to confront the prosecution’s evidence 

is manifest. However, the defendant genu- 

inely may not know what type of expert he 

needs to mount an effective challenge. 

The majority would foreclose any inquiry 

3. I note that the majority places upon the de- 

fendant the burden of informing the court 

whether the physical evidence and the related 

expert testimony would play an important role 

in the State's case. This marks a significant 

modification of the Supreme Court's holding in 

Ake, which merely required the defendant to 

demonstrate “to the trial court that his sanity is 

likely to be a significant factor in his defense 

into the defendant's need for assistance 

simply because the defendant cannot state 

up front the specific assistance he requires. 

When a defendant asks for assistance and 

the need for assistance is obvious, it is 

fundamentally unfair for the court to deny 

assistance merely because the defendant 

lacks scientific knowledge. After review- 

ing the physical evidence the prosecution 

possesses, the court, with its experience in 

criminal cases, may itself be able to deter- 

mine what type of expert the defendant 

needs. 

Furthermore, lawyers often lack either 

the time or the ability to learn whole areas 

of forensic science. Experts can acquaint 

defense counsel with the scientific princi- 

ples involved, point out weaknesses in the 

prosecution’s tests, and recommend tests 

that the defense might find useful. The 

majority would preclude a defendant from 

ever receiving such assistance from ap- 

pointed experts. This is not to say that a 

defendant is entitled to an appointed expert 

upon demand whenever the prosecution’s 

case involves physical evidence. However, 

the standard in Ake is sufficiently flexible 

to allow appointed experts to provide such 

preliminary assistance in certain instances. 

The majority also places on the defend- 

ant the burden of prescience: of knowing 

(or really guessing) that the state intends 

to use certain testimony in certain ways.? 

Despite the limits of discovery and the 

scope of the work product rule, Moore's 

counsel undoubtedly knew that the state 

had and would present expert interpreta- 

tions of physical evidence. He may even 

have known the gist of the testimony to be 

offered. However, how could any defend- 

ant ever have more than an inkling as to 

how the prosecution intended fo use such 

evidence? In this case the prosecutor re- 

"470 U.S. at 83, 105 S.Ct. at 1097 (empha- 

sis supplied). Ake is properly read as requiring 

the defendant to show that from his perspective 

a given issue will be critical. Accord Bowden v. 

Kemp, 767 F.2d 761, 764 (11th Cir.1985). The 

majority requires him to offer evidence from 

the perspective of the prosecutor—an infinitely 

more difficult burden. 

  

E
s
 

S
e
c
 

oi 
i 

a 

 



744 

lied heavily upon it, telling the jury that it 
was “very incriminating.” But a prudent 
prosecutor could only make effective use of 
such flabby testimony if he knew that the 
defendant could not rebut it with his own 
experts. Consequently, the majority’s test 
is circular. The evidence will only play an 
important role if the defendant has no ex- 
pert, and the defendant needs no expert if 
the evidence plays no important role. To 
the extent that this factor is retained at all, 
the burden of proof ought to be placed 
upon the government to show that the in- 
formation at issue is not critical to its case. 
Then that showing ought to be made a 
binding commitment by the government to 
use the evidence only in that fashion. 

I reiterate that the Supreme Court has 
required only that the defendant make a 
bona fide showing of reasonableness. 
That is a showing that the defense could, if 
the request has merit, and ought to make 
in order to justify appointment of assist 
ance. My objection is that the majority’s 
opinion engrafts upon this requirement un- 
necessary and improper burdens that, I 
fear, will almost always prove fatal to the 
defendant’s request. 

B. 

Benjamin Cardozo, with characteristic 
grace, once noted that “a defendant may be 
at an unfair disadvantage[ ] if he is unable 
because of poverty to parry by his own 
witnesses the thrust of those against him.” 
Reilly v. Berry, 250 N.Y. 456, 461, 166 
N.E. 165, 167 (1929) (per Cardozo, CJ.). 
The Supreme Court has noted that which 
any experienced trial judge or lawyer could 
confirm: that “ [tlestimony emanating 
from the depth and scope of specialized 
knowledge is very impressive to a jury. 
The same testimony from another source 
can have less effect.” Ake, 470 U.S. at 
81, n. 7, 105 S.Ct. at 1096 n. 7 (quoting F. 
Bailey & H. Rothblatt, Investigation and 
Preparation of Criminal Cases § 175 
(1970)). A defendant's inability to rebut 
expert testimony, coming before the jury 
with what is effectively a presumption of 
correctness, is “devastating” to the unas- 

- EE eT Er EEE Gers 

809 FEDERAL REPORTER, 2d SERIES 

sisted defendant’s chances of persuading 
the jury to reject such evidence. 470 US. 
at 82-84, 105 S.Ct. at 1097. 

The case against Moore was, to be chari- 
table, weak. There was no direct evidence 
linking him to the crime and he claimed 
that at the time of the murder he was 
passed out on his sofa at home. No one at 
trial offered an eye witness account of any 
episodes in the crime. The prosecution’s 
case was built solely upon a two-part foun- 
dation: the testimony of Pasby as to 
Moore’s supposed admissions to him; and 
the testimony of several expert witnesses 
as to physical evidence found at the scene 
of the crime and in Moore’s house one 
month later. The jury convicted Moore 
based upon these two elements. 

This Court today finds that Pasby’s testi- 
mony may have been given in exchange for 
lenity in regard to charges pending against 
him—a fact the jury did not know. Upon 
remand it may well be that Pasby’s testi- 
mony will be found incredible, given his 
own likely biases. The physical evidence 
thus assumes an even more critical role in 
the question of Carzell Moore's guilt or 
innocence because half of the foundation 
for the prosecution’s case may well have 
been undermined by constitutional error. 
Under such circumstances, it is not unfair 
to say that in large part the determination 
of Carzell Moore’s guilt will hinge upon the 
testimony of state experts that the majori- 
ty would leave him powerless to contradict 
with any degree of effectiveness. 

Ake requires “an ex parte threshold 
showing to the trial court” that the matter 
subject to expert testimony is “likely to be 
a significant factor” in the defense. 470 
U.S. at 82, 105 S.Ct. at 1097. By Cald- 
well ’s language, Moore must show that his 
need for expert assistance to interpret 
physical evidence is based upon a developed 
assertion of reasonable necessity. The ma- 
jority would require a description of the 
assistance needed and the type of testing, 
an explanation of the importance of the 
physical evidence to the state’s case, and 
an explanation of how the expert would 
assist Moore in defending himself. Under   

 



s of persuading 
dence. 470 U.S. 

was, to be chari- 

b direct evidence 

and he claimed 

murder he was 

ome. No one at 

5 account of any 
he prosecution’s 

a two-part foun- 

f Pasby as to 

bns to him; and 

bxpert witnesses 

nd at the scene 

bre’s house one 

tonvicted Moore 

ents. 

at Pasby’s testi- 

in exchange for 

pending against 

ot know. Upon 
it Pasby’s testi- 

dible, given his 

ysical evidence 

e critical role in 

[oore’s guilt or 

the foundation 

may well have 

titutional error. 

it is not unfair 

e determination 

| hinge upon the 

that the majori- 

ss to contradict 

eness. 

arte threshold 

that the matter 

is “likely to be 

bp defense. 470 

97. By Cald- 

kt show that his 

e to interpret 

pon a developed 
ssity. The ma- 

cription of the 

ype of testing, 

ortance of the 

ate’s case, and 

b expert would 

imself. Under 

ET SPT - — _— " 
a Rg’ a IRs SS ie ee oy Tr trae YC hr SS i Sl SIRS. Sei» Sd Sm— 

MOORE v. KEMP 745 
Cite as 809 F.2d 702 (11th Cir. 1987) 

all three rubrics I believe that Moore made 

an adequate showing of need for and en- 

titlement to state-paid expert assistance. 

At the pre-trial hearing, Moore's attor- 

ney addressed the court orally on the sub- 

ject. 
We would like to make a motion to the 

Court that an independent research 
analysis [sic] be appointed by this Court 

that is not employed by the State of 
Georgia to examine this evidence to find 

his own conclusions on behalf of the de- 

fendant, to reach his own conclusions, in 

order that we can first of all, have some- 

one to advise us as to the expertise of 

the Georgia Crime Lab, whether or not 

they performed the correct tests, wheth- 

er or not there could be any variances in 

the findings of the Georgia Crime Lab, in 

order that we would have this knowledge 

available to us. | 

R.Exh. 2-40. This, standing alone, is no 

more than an “undeveloped assertion[ ] 

that the requested assistance would be ben- 

eficial...."” Caldwell, 472 U.S. at 324, n. 

1, 105 S.Ct. at 2637, n. 1. But the defense 

attorney supplemented this oral statement 

with a written request: 

Defendant has been informed that the 

various items of physical evidence tend 

to connect him to a commission of the 

crime for which he is charged, even 

though defendant understands that a 

number of the tests performed by the 

State Crime Lab do not conclusively 

prove the presence of defendant, but 

rather prove the presence of someone 

similar to defendant. 

Neither the defendant nor his counsel 

are [sic] sufficiently knowledgeable to 

determine whether the test and examina- 

tions performed by the State Crime Lab 
on the various pieces of physical evidence 

are complete, conclusive, or exhaustive. 

This, coupled with the oral statement, goes 

to the requirements of Ake, of Caldwell, 

and of the majority's opinion. It sets forth 

4. Moore's attorney did ask for assistance, in 
part, “in order that the defendant can test the 
validity of and accuracy of any tests which have 
been run by the State and the results of which 
may be introduced into evidence against the de- 

a reasonable need for expert assistance in 

order both to impeach state witness credi- 

bility and credentials and to attack the fac- 

tual conclusions that those witnesses will 

likely draw—in short the probable value of 

such assistance and the risk of error if 

denied. The statement goes on, however: 

Defendant understands that there are 

certain tests which can be run which 

might conclusively prove whether or not 

the hair samples found are those from 

defendant, but neither defendant nor his 

counsel have the necessary funds or ex- 

pertise to perform said tests. 

This bolsters the reasonableness of the re- 

quest and further meets the majority's re- 

quirement that the defendant specify the 

tests he seeks to have performed. Moore's 

attorney continued: 

Appointed counsel cannot effectively 

prepare the defense for Defendant with- 

out the services of an expert witness to 

advise him concerning the tests and ex- 

aminations run by the law enforcement 

and judicial agencies and no provision 

has been made for the Defendant to have 

available to him the kind of resources 

which are available to the State through 

the State Crime Laboratory in order that 

the Defendant can test the validity of 

and accuracy of any tests which have 

been run by the State and the results of 

which may be introduced into evidence 

against the defendant at trial. 

R.Exh. 1-87. Again, the defendant offered 
evidence of reasonableness and a showing 

sufficient to describe the type of expert 

assistance needed. Moore's attorney even 

went on to offer the trial-court the name of 

his proposed expert and the fee for his 

services: $1500. 

Admittedly, Moore’s lawyer did not af- 

firmatively allege that the state would rely 

upon the evidence here at issue.! But as 

Moore's counsel noted in his motion for 

fendant at trial...” (emphasis supplied). This 
is at least suggestive that Moore's attorney rec- 
ognized that the physical evidence would be 
important to the state’s case and that he needed 
to be able to respond to it. 

| 

| 

 



  

746 

expert assistance, he could not do so be- 
cause: 

[t]here is no statute in the law of Georgia 

giving the Defendant the right to com- 

pulsory legal process which will require 

the State to advise the Defendant of the 
basis on which the State intends to at- 

tempt to prove that the defendant is 

guilty of the crime for which he has been 
indicted. 

R.Exh. 1-88. Thus the majority today im- 

poses a burden on all indigent defendants 

which the law of Georgia makes impossible 

to meet. Moreover, given the lack of any 

eye witness to this crime, and the fact that 

aside from the physical evidence the state's 

only witness was a cellmate with a criminal 

record of his own, I believe it was so pat- 

ently obvious as to go without saying that 

the physical evidence, and expert interpre- 

tation of that evidence, would be critical, 

even absent an express guess by the de- 
fendant to that effect. 

The physical evidence in this case was, 

standing alone, weak. As the state’s wit- 

nesses themselves conceded, there were 

major questions as to the validity and accu- 

racy of the tests performed. The majori- 

ty’s recitation of the facts does not mention 

that the Hushpuppy shoe prints found at 

the scene of the crime were not congruent 

in size with those seized from Moore's 

house, yet Moore was unable to counter 

this damaging circumstantial evidence with 

testimony as to whether the soil could have 

8. The expert who examined the semen could 
only show that it came from someone of 
Moore's blood group, a trait he shared with 
forty per cent of the male population. 

6. The microanalyst of the hair samples admitted 
on cross examination that “[a]s to whether or 
not they [the two hairs from the towel] actually 
come from [a particular person] is impossible to 
determine in forensic science.” He further con- 
fessed that his attempts to match a hair sample 
with a particular individual are at best “right 
fifty-one percent of the time and wrong forty- 
nine percent of the time.” 

7. The majority intimates at the end of its discus- 
sion of this issue that any prejudice suffered by 
Moore through failure to appoint an expert to 
assist him was, in effect, harmless given that his 
attorney comprehensively cross-examined the 

BC TIE. 

809 FEDERAL REPORTER, 2d SERIES 

produced a print longer and wider than the 
shoe. The semen sample could be identi- 
fied as coming from any of the two-fifths 
of the country’s male population sharing 
Moore’s blood type.® The two hairs seized 
from a towel in Moore’s bathroom, one 
month after the crime, could likewise only 
be shown to be consistent with those of 
Allen and not inconsistent with those of 
Moore, Green or Pasby. In essence, the 
state’s “expert” could only say with cer- 
tainty that which any layman could also 
have observed: that he viewed a blond 
pubic hair and a Negro head hair.® Yet the 
prosecutor was able to characterize this 
evidence as “very incriminating” in large 
part because he was assured that Moore 
could not offer a witness of equal stature 
to question these assertions. It is precisely 

in cases of this sort where failure to pro- 
vide expert assistance to the defendant be- 
comes crucial. When physical evidence is 

itself weak it may well be that the per- 
suasiveness of that evidence derives entire- 
ly from the enhancing effect caused by 
“expert” testimony prodding the jury to- 
ward a particular conclusion.’ 

For all of the reasons foregoing, I be- 
lieve that the majority errs in its disposi- 

tion of this question, both as a theoretical 

matter and as applied within the confines 

of this case. Moore has established a rea- 

sonable need for the assistance of experts 

under Ake, and I would grant him relief. 

state’s witnesses and that he did not renew his 
motion at trial. 

It is doubtful whether an adequate defense 
could be had simply by impeaching the witness- 
es and their findings during cross-examination. 
As the Supreme Court noted in Ake, expert testi- 
mony is often of exceptional persuasiveness to a 
jury. Even presentation of a contrary witness 

not billed as an “expert” is less effective. 470 
US. at 81, n. 7, 105 S.Ct. at 1096, n. 7. Of 
course, the average juror would give even less 
credence to the naturally biased observations of 
defense counsel in cross-examining state wit- 
nesses or in making closing arguments. It is 
not enough to say that the defendant has the 
opportunity to respond. Rather, he must be 
assured of “a fair opportunity to present his 
defense.” Id. at 76, 105 S.Ct. at 1093 (emphasis 
added).  



e and take the 
at he commit. 

And when he 
st of his testj- 

actfinders, the 
rmine whether 

tes: 

e Mr. Gullek- 

pu about why 

bd to you.... 

let’s have him 

Thompson got 

identified his 
this organiza- 

lid not object 

irgument but 

completion. 
motion. 

clause of the 

when the pros- 

used’s silence. 

U.S. 609, 85 
(965). In this 

e whether a 

considered a 
ailure to testi- 

sed was man- 

uch character 

and necessar- 

the failure of 

bwles v. Unit- 

0th Cir.1955). 

ant to timely 
jmments does 

s the substan- 

ed could give 
tates v. Bar- 

384). “In de- 

error’ rule 

record should 

ates v. Wil- 

Cir.) cert. 

p.Ct. 342, 30 

  
  

  

  

COLEMAN v. BROWN 

Cite as 802 F.2d 1227 (10th Cir. 1986) 

[3] Defendant maintains that in a joint 

criminal trial, the prosecutor may not com- 

ment on the fact that a particular co-de- 

fendant elected to take the stand when 

another co-defendant elected to remain si- 

lent. We have carefully reviewed the 

record and find that no error was commit 

ted by the prosecutor's statements in clos- 

ing argument. The statements of the pros- 

ecutor amount only to comment regarding 

the substance of defendant Thompson’s 

testimony as well as his credibility. These 

clearly are matters on which the prosecu- 

tion may comment. See United States v. 

Cotter, 425 F.2d 450 (1st Cir.1970); United 

States v. Jansen, 475 F.2d 312 (7th Cir. 

1978). The statements when read in their 

proper context contain no reference to de- 

fendant Montgomery's silence and they 

cannot be inferred as comment on his fail- 

ure to testify. Further, the comments by 

the prosecutor cannot be found to adverse- 

ly affect defendant's right to a fair trial. 

The prosecutor's comments fairly related 

to the facts brought out during trial and 

“did not divert the jury from its sworn 

duty to decide the issue of innocence or 

guilt based on the evidence admitted and 

the court's instructions.” United States v. 

Haskins, 737 F.2d 844, 850 (10th Cir.1984). 

Additionally, we would note that the trial 

court properly instructed the jury that the 

law does not require a defendant to take 

the witness stand and that guilt is not to be 

inferred by the failure of any defendant to 

testify. Under the circumstances of this 

case, any danger that the jury would misin- 

terpret the silence of any defendant was 

therefore eliminated. 

We conclude that the trial court’s denial 

of defendant Montgomery's motion for mis- 

trial was proper. Accordingly, we AF- 

FIRM. 

© ¢ KEY NUMBER SYSTEM 

y&- 
Charles Troy COLEMAN, 

Petitioner-Appellant, 

AZ 

John N. BROWN, Warden, Oklahoma 

State Penitentiary at McAlester, Okla- 

homa; Larry Meachum, Director, De- 

partment of Corrections, State of Okla- 

homa; and the Attorney General of the 

State of Oklahoma, Respondents-Appel- 

lees. 

No. 85-1094. 

United States Court of Appeals, 

Tenth Circuit. 

Sept. 30, 1986. 

A petition was filed seeking a writ of 

habeas corpus and the petitioner filed mo- 

tions for stay of execution and an eviden- 

tiary hearing. The United States District 

Court for the Eastern District of Okla- 

homa, Frank Howell Seay, Chief Judge, 

denied the petition. Appeal was taken. 

The Court of Appeals, Logan, Circuit 

Judge, held that: (1) prospective jurors 

were excludable for cause where their be- 

liefs about capital punishment would sub- 

stantially impair their ability to serve as 

jurors; (2) the petitioner failed to establish 

that he received ineffective assistance of 

counsel in both the guilt and sentencing 

phases of his capital murder trial, although 

it was improper for the defense counsel to 

fail to make any contact with a proposed 

alibi witness; (38) the petitioner failed to 

establish that he was prejudiced by the 

trial court's failure to appoint a private 

investigator to aid in the defense; and (4) 

any improprieties in the prosecutor’s clos- 

ing arguments in the guilt and sentencing 

phases of the trial were not reversible er- 

ror. 

Affirmed. 

1. Jury 108 

It is not necessary that prospective 

jurors would vote automatically against 

death penalty or that their opinions on capi-   

  

   



  
    

      
  

  

1228 

tal punishment would prevent them from 
rendering impartial verdict for jurors to be 
excluded for cause; rather, if prospective 
juror conscientiously disapproves of death 
penalty, that juror can be eliminated if any 
of that person’s jury duties would be sub- 
stantially impaired. 

2. Jury ¢=108 

Prospective juror’s responses on voir 
dire sufficiently demonstrated that his be- 
liefs about capital punishment would sub- 
stantially impair his ability to serve as ju- 
ror and, therefore, juror was excludable for 
cause. 

3. Jury €=33(2.1) 
Exclusion of jurors opposed to death 

penalty from guilt-innocence phase of capi- 
tal murder trial did not violate petitioner’s 
right to jury comprised of fair cross-section 
of community or to fair and impartial jury, 
in violation of Sixth and Fourteenth 
Amendments. US.CA. Const. Amends. 6, 
14. 

4. Criminal Law €=641.13(6) 
It was improper for petitioner’s attor- 

ney to fail to investigate what was perhaps 
petitioner's sole line of defense in guilt 
Phase of capital murder prosecution, where 
attorney made no effort to contact alibi wit- 
ness, for purposes of determining whether 
petitioner received ineffective assistance of 
counsel. U.S.C.A. Const. Amend. 6, 

5. Criminal Law ¢641.13(6) 
Petitioner failed to establish that he 

was prejudiced by his counsel's failure to 
investigate alibi witness who was petition- 
er’s sole line of defense in guilt phase of 
capital murder trial and, therefore, failed 
to establish that petitioner had been denied 
reasonably effective counsel. U.S.CA. 
Const. Amend. 6. 

6. Criminal Law ¢=641.13(2) 
Defense counsel's strategic decision 

not to file written briefs on some motions 
in guilt phase of capital murder prosecution 
was reasonable and, thus, did not amount 
to ineffective assistance of counsel. U.S. 
C.A. Const. Amend. 6. 

802 FEDERAL REPORTER, 2d SERIES 

7. Criminal Law ¢=641.13(6) 
Petitioner failed to establish that ju- 

rors would have reached contrary decision 
with respect to guilt or sentence imposed 
for capital murder had they not heard test;- 
mony of inmate that petitioner admitted 
murdering victims, or if that testimony had 
been more thoroughly discredited and, 
therefore, petitioner failed to establish that 
defense counsel's alleged failure to prepare 
adequately for testimony of inmate 
amounted to ineffective assistance of coun- 
sel. U.S.C.A. Const.Amend. 6, 

8. Criminal Law ¢=641.13(2) 
Defense counsel's decision not to re- 

quest instruction that petitioner’s failure to 
testify could not be used against him was 
within counsel's tactical discretion for pur- 
poses of determining whether petitioner re- 
ceived ineffective assistance of counsel in 
guilt phase of capital murder trial. U.S. 
C.A. Const.Amend. 6. 

9. Criminal Law ¢=641.13(7) 
Prejudice could not be assumed from 

defense counsel's alleged failure to investi- 
gate other criminal charges pending 
against petitioner, which had been intro- 
duced as aggravating circumstances in sen- 
tencing phase of capital murder trial, 
where there was no showing that investiga- 
tion would have uncovered mitigating evi- 
dence. U.S.C.A. Const.Amend. 6. 

10. Criminal Law ¢=641.13(7) 
Defense counsel's decision not to have 

members of petitioner's family testify on 
his behalf in sentencing phase of capital 
murder prosecution was within range that 
counsel was entitled to make. US.C.A. 
Const. Amend. 6. 

11. Criminal Law &641.13(7) 
Petitioner failed to prove that he was 

prejudiced by defense counsels failure to 
have members of petitioner's family testify 
on his behalf in sentencing phase of capital 
murder trial where jury found five aggra- 
vating factors beyond a reasonable doubt 
and petitioner did not challenge the validity 
of any of them. U.S.C.A. Const. Amend. 6.  



(6) 

tablish that ju- 

ontrary decision 
entence imposed 
7 not heard test;. 
itioner admitted 

pt testimony had 
fliscredited and, 

0 establish that 
hilure to prepare 

hy of inmate 
istance of coun- 

i. 6. 

2) 

sion not to re- 

bner’s failure to 

gainst him was 

retion for pur- 

er petitioner re- 

e of counsel in 

fer trial. U.S. 

f) 

assumed from 

lure to investi- 

rges pending 
bd been intro- 

stances in sen- 

murder trial, 
that investiga- 
itigating evi- 

hd. 6. 

) 

bn not to have 

ily testify on 
hse of capital 
in range that 

ke. US.CA. 

) 

that he was 

I's failure to 
family testify 
ase of capital 
d five aggra- 
onable doubt 

e the validity 
st. Amend. 6. 

  

  

  

COLEMAN v. BROWN 1229 
Cite as 802 F.2d 1227 (10th Cir. 1986) 

12. Criminal Law €=641.13(7) 

Defense counsel's decision to appeal to 

jury’s religious beliefs in closing argument 

in sentencing phase of capital murder pros- 

ecution was strategic decision to appeal to 

jury’s merciful instincts, for purposes of 

determining whether petitioner received in- 

effective assistance of counsel. U.S.C.A. 

Const. Amend. 6. 

13. Criminal Law ¢=641.13(7) 

Defense counsel's closing argument in 

sentencing phase of capital murder trial did 

not prejudice petitioner, for purposes of 

determining whether petitioner received in- 

effective assistance of counsel. U.S.C.A. 

Const.Amend. 6. 

14. Criminal Law ¢=641.13(2, 6, 7) 

Defense counsel was effective advo- 

cate in guilt and sentencing phases of capi- 

tal murder prosecution where he vigorous- 

ly defended petitioner, obtained change of 

venue, successfully obtained exclusion 

from guilt stage of trial testimony that 

petitioner had escaped from jail and that 

his brother had thrown murder weapon 

into river and made numerous objections 

and motions throughout guilt and sentenc- 

ing stages. U.S.C.A. Const.Amend. 6. 

(imine Law &1166.11(1) 

Petitioner failed to demonstrate sub- 

stantial prejudice from trial court’s refusal 

to appoint private investigator to help his 

attorney in capital murder prosecution, de- 

spite contention that petitioner was denied 

due process and equal protection in that 

Oklahoma only permits courts and counties 

with population greater than 200,000 to 

appoint private investigators to aid indigent 

defendants. 19 0.S.1981, § 138.6; U.S. 

C.A. Const. Amends. 5, 14. 

16. Habeas Corpus ¢45.2(7) 

Allegedly prejudicial remarks by prose- 

cutor in closing argument that would cause 

reversal on direct appeal of federal convic- 

tion are not necessarily grounds for rever- 

sal when spoken in state courts; rather, to 

determine whether state prosecutor's re- 

marks were so flagrant as to deny petition- 

er a fair trial, notice must be taken of all 

surrounding circumstances, including 

strength of state’s case. 

17. Criminal Law €=721(3) 

Prosecutor's closing argument during 

guilt phase of capital murder trial in which 

he prefaced bits of unanswered inculpatory 

evidence with word “why,” was not ‘“‘mani- 

festly intended” to draw attention to peti- 

tioner’s silence and, thus, did not deny peti- 

tioner fair trial. 

18. Criminal Law &713 

Prosecutor’s closing argument in guilt 

phase of capital murder trial that, follow- 

ing police, witnesses, and district attorney’s 

office, jury was “final link” in chain of law 

enforcement improperly trivialized jury’s 

importance and placed jury in adversarial 

position with respect to petitioner. 

19. Criminal Law €=713 

Prosecutor’s closing argument in guilt 

phase of capital murder trial that, follow- 

ing police, witnesses, and district attorney’s 

office, jury was “final link” in chain of law 

enforcement did not rise to level of consti- 

tutional error, even taken together with 

prosecutor's persistent attempts to evoke 

sympathy for victims and prosecutor’s com- 

ments on matters not in evidence. 

20. Criminal Law &713 

Prosecutor’s closing argument in guilt 

phase of capital murder trial did not violate 

petitioner's right to fair trial where prose- 

cutor’s allegedly inflammatory comments 

generally were limited to introduction of 

lengthy closing argument, prosecutor did 

not manipulate or misstate evidence, and 

many of prosecutor's most graphic re- 

marks were in fact accurate descriptions of 

evidence. : 

21. Criminal Law &713 

Decision on propriety of closing argu- 

ment in sentencing phase of capital murder 

trial must look to Eighth Amendment's 

command that death sentence be based on 

complete assessment of petitioner’s individ- 

ual circumstances, and Fourteenth Amend- 

ment’s guarantee that no one be deprived 

of life without due process of law. U.S. 

C.A. Const.Amends. 8, 14.  



  
  

    
    
  

  

1230 

22. Criminal Law ¢=723(1) 
Appeals to emotion ordinarily do not 

alone render argument improper in sen- 
tencing phase of capital murder trial. U.S. 
C.A. Const.Amends. 8, 14. 

23. Criminal Law 713 
In closing argument in sentencing 

phase of capital murder prosecution, prose- 
cutor may comment on evidence concerning 
existence of aggravating factor required to 
be found before jury may impose death 
penalty, prosecutor may comment on infor- 
mation about petitioner, his character, and 
circumstances of his offense made known 
to jury throughout bifurcated trial, prose- 
cutor may comment on defendant’s future 
dangerousness and chances for rehabilita- 
tion and prosecutor may comment on peno- 
logical justifications for death penalty. 
U.S.C.A. Const.Amends. 8, 14. 

24. Criminal Law &=713 
Prosecutor’s closing argument in sen- 

tencing phase of capital murder trial about 
petitioner’s failure to show regret or re- 
morse for his actions was relevant to prob- 
ability that petitioner would commit erimi- 
nal acts of violence that would constitute 
continuing threat to society, as aggravat- 
ing circumstance. 21 0.S.1981, § 701.12, 
subd. 7; U.S.C.A. Const. Amends. 8, 14 

25. Criminal Law &723(4) 
Prosecutor's closing argument in sen- 

tencing phase of capital murder prosecu- 
tion commenting on petitioner's future dan- 
gerousness was relevant to specific deter- 
rence, a purpose of the death penalty and, 
therefore, comment was appropriate where 
future dangerousness was listed as aggra- 
vating circumstance in bill of particulars. 
U.S.C.A. Const.Amends. 8, 14. 

26. Criminal Law 713 
Prosecutor’s closing argument in sen- 

tencing phase of capital murder prosecu- 
tion did not permit jury to rely on someone 
else to make ultimate sentencing decision 
or otherwise dilute or trivialize jury's re- 
sponsibility, even though prosecutor men- 
tioned that petitioner was responsible for 
his own plight, where there was no sugges- 
tion that anyone but jury had control over 

802 FEDERAL REPORTER, 2d SERIES 

petitioner's fate. U.S.C.A. Const.Amends. 
5, 14. 

27. Habeas Corpus ¢=90.2(1) 
Petitioner’s allegation in general terms 

what he would have testified to had he 
been permitted to attend state hearing on 
application for postconviction relief was in- 
sufficient to mandate evidentiary hearing 
on habeas corpus petition. 

Edward L. Munson, Tahlequah, OKkl., for 
petitioner-appellant. 

David W. Lee, Asst. Atty. Gen., Chief, 
Criminal & Federal Divisions (Michael C. 
Turpen, Atty. Gen. of Oklahoma, Robert A. 
Nance, Deputy Chief, Federal Div., Hugh 
A. Manning, Asst. Atty. Gen., and Susan 
Stewart Dickerson, Asst. Atty. Gen., with 
him on the briefs), Oklahoma City, OKI. for 
respondents-appellees. 

Before HOLLOWAY, Chief Judge, and 
LOGAN and SEYMOUR, Circuit Judges. 

LOGAN, Circuit Judge. 

Petitioner, Charles Troy Coleman, ap- 
peals from the district court’s denial of his 
application for a writ of habeas corpus and 
his motions for a stay of execution and an 
evidentiary hearing. 

The issues on appeal are (1) whether 
prospective jurors for Coleman’s trial were 
excused for cause improperly because of 
their opposition to the death penalty; (2) 
whether the exclusion of prospective jurors 
opposed to the death penalty from the guilt 
stage of the trial denied Coleman a jury 
representing a cross-section of the commu- 
nity and resulted in a conviction-prone jury; 
(3) whether Coleman was denied effective 
assistance of counsel in the sentencing 
stage of his trial, the guilt stage of his 
trial, or in the trial as a whole; (4) whether 
Coleman had a constitutional right to the 
appointment of an investigator to aid his 
attorney; (5) whether the prosecutor’s re- 
marks in closing arguments in both stages 
of the trial denied Coleman a fair trial; and 
(6) whether the district court erred in not    



Const.Amends, 

(1) 
n general terms 

ied to had he 
tate hearing on 
bn relief was in- 
entiary hearing 

equah, Okl,, for 

y. Gen., Chief, 
bns (Michael C. 
oma, Robert A. 

ral Div., Hugh 

en., and Susan 

tty. Gen., with 

a City, Okl. for 

ircuit Judges. 

Coleman, ap- 
’s denial of his 
eas corpus and 

ecution and an 

e (1) whether 
an’s trial were 

ly because of 

h penalty; (2) 
spective jurors 

from the guilt 

oleman a jury 

of the commu- 

ion-prone jury; 
nied effective 

he sentencing 

stage of his 
e; (4) whether 

kl right to the 
tor to aid his 
osecutor’s re- 

both stages 

fair trial; and 

erred in not 

  

  

  

COLEMAN v. BROWN 1231 

Cite as 802 F.2d 1227 (10th Cir. 1986) 

granting Coleman an evidentiary hearing. 

We affirm. 

Coleman was convicted of first-degree 

murder and sentenced to death by an Okla- 

homa jury on October 12, 1979. Evidence 

at trial showed that while Coleman was 

burglarizing the home of Dale and Delthea 

Warren, John and Roxie Seward walked in 

on him. John Seward was the brother of 

Delthea Warren. Coleman shot and killed 

the Sewards with a .28 gauge shotgun, 

apparently after he took them into the 

basement. Although there were no wit- 

nesses to the murders, the circumstantial 

evidence was overwhelming. There was 

evidence that this particular gauge shotgun 

was very rare and that Coleman owned 

one. Several hours after the murders, 

Coleman was stopped for a traffic violation 

and found in possession of Mrs. Seward’s 

wallet. The police discovered in Coleman’s 

truck sixty-four pounds of meat marked 

“Hogle, Not for Sale.” Lon Hogle testified 

that he had given this meat to the Warrens. 

The police also found Mrs. Warren's watch 

beneath the back seat of the police car. 

Coleman's wife testified that Coleman gave 

her this watch while they were in the back 

seat of that vehicle. There was also testi- 

mony placing Coleman’s truck at the War- 

ren’s home at the estimated time of the 

murder. None of this evidence was refut- 

ed. 

The Oklahoma Court of Criminal Appeals 

affirmed Coleman's conviction and sen- 

tence. Coleman v. State, 668 P.2d 1126 

(Okla.Crim.App.1983), cert. denied, 464 

U.S. 1078, 104 S.Ct. 986, 79 L.Ed.2d 222 

(1984). After the United States Supreme 

Court denied certiorari, Coleman filed an 

1. We have noted a significant error, which we 

must discuss, in the district court's January 18, 

1985 “Order Denying Petitioner's Application for 

Evidentiary Hearing, Denying Petition For Writ 

of Habeas Corpus, And Denying Petitioner's Ap- 

plication For Stay of Execution.” 

At page 23 of that Order, the district court 

stated that “petitioner has filed a previous re- 

quest for habeas corpus relief before the court 

in No. 80-312-C, which was denied by order of 

this court on December 22, 1980.” The Order 

then quoted language from Barefoot v. Estelle, 

463 U.S. 880, 895, 103 S.Ct. 3383, 3395, 77 

application for post-conviction relief in the 

state district court in Muskogee County. 

See Okla.Stat. tit. 22, §§ 1080-1088. That 

court denied the application, and the Okla- 

homa Court of Criminal Appeals affirmed. 

Coleman v. State, 693 P.2d 4 (Okla.Crim. 

App.1984). 

Coleman then filed in federal district 

court these applications for a writ of habe- 

as corpus, an evidentiary hearing, and a 

stay of execution. The district court de- 

nied each of Coleman’s applications.! This 

court granted a stay of execution, 753 F.2d 

832, and has given full consideration to the 

appeal after briefing and oral argument. 

I 

Coleman first contends that the trial 

court erred in excluding four jurors for 

cause under Witherspoon v. Illinois, 391 

US. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 

(1968). In Witherspoon the Supreme 

Court indicated that prospective jurors in a 

capital case could be excluded if they made 

it 

«unmistakably clear (1) that they would 

automatically vote against the imposi- 

tion of capital punishment without re- 

gard to any evidence that might be devel 

oped at the trial of the case before them, 

or (2) that their attitude toward the death 

penalty would prevent them from mak- 

ing an impartial decision as to the de 

fendant’s guilt.” 

Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 

(original emphasis). Many lower courts 

treated this as an absolute standard which 

had to be met fully before jurors could be 

excluded on the grounds of their scruples 

against the death penalty. But in Wain- 

L.Ed.2d 1090 (1983), about the State's legitimate 

interest in preventing a mere delaying tactic by 

abuse of the writ. 

The record before us shows that the prior case 

No. 80-312-C was not a habeas petition attack- 

ing the John Seward murder conviction and 

death sentence involved in the instant case. 

That case dealt instead with claims that the 

petitioner was denied his right to a speedy trial 

on the charge that he murdered Roxie Seward. 

Accordingly, the district court's statements 

about successive proceedings and the prior case 

were clearly in error.   

     



  
  

    
  

    
  

1236 

reprehensible nature of the crime and his 

court-appointed status were factors justify- 

ing reversal), cert. denied, 471 U.S. 1018, 
105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). But 
the closing argument here shows only an 

experienced criminal attorney’s strategic 

decision to appeal to a jury’s religious be- 
liefs.” It was the plea for mercy the de- 
fendant himself chose not to make. Faced 

with overwhelming evidence of both guilt 

and aggravating factors, Coleman’s attor- 
ney made a reasoned decision not to focus 
on Coleman’s guilt or innocence but to ap- 

peal to the jury’s merciful instincts. Coun- 

sel expressly testified that his closing argu- 
ment was “intended to create some sympa- 
thy for a man who had been convicted of 

Murder One,” R. III, 848 A reviewing 

court cannot second guess the decisions of 
experienced trial attorneys. Strickland, 
466 U.S. at 690-91, 104 S.Ct. at 2066-67; 
Darden, — U.S. at ——, 106 S.Ct. at 24783. 

Viewing this closing argument as a whole, 

we hold that the argument did not preju- 
dice Coleman. 

C 

[14] In determining that Coleman re- 
ceived effective assistance of counsel, we 

have focused not only on alleged errors, 

but also on what counsel did for Coleman. 

Courts should not judge the overall quality 

of representation by focusing unduly on 

isolated incidents. See Tucker v. Zant, 724 

F.2d 882, 894 (11th Cir.1984), reversed on 

other grounds sub. nom. Tucker v. Kemp, 

762 F.2d 1480 (11th Cir.1985) (en banc). 
Although certain individual errors may be 

so fundamental that they alone constitute 

reversible error, see Morrison, — U.S. at 

——, 106 S.Ct. at 2586-89, when a series of 

errors of lesser magnitude are asserted, a 

court should consider the quality of repre- 

7. This appears to be a common trial tactic. See 
Caldwell v. Mississippi, 472 U.S. 320, —, 105 
S.Ct. 2633, 2637, 86 L.Ed.2d 231 (1985). 

8. The Supreme Court recently has granted cer- 
tiorari in a case challenging a jury instruction 
that a jury must not consider sympathy in decid- 
ing whether to impose the death penalty. Cali- 
fornia v. Brown, — U.S. ——, 106 S.Ct. 2274, 90 

L.Ed.2d 717 (}986). Although a similar instruc- 

tion was given in the instant case, R. VII, 993, 

802 FEDERAL REPORTER, 2d SERIES 

sentation as a whole. 7d. at —, 106 S.Ct. 
at 2588. 

Coleman's attorney was an experienced 
criminal lawyer who had participated in 
several other capital trials. Although the 
record shows he was beleaguered, he 
nevertheless vigorously defended Coleman. 
He succeeded in obtaining a change of ven- 

ue and in excluding from the guilt stage of 

the trial testimony that Coleman had es- 

caped from jail and that his brother had 
thrown the murder weapon into a river. 

See United States v. Winkle, 722 F.2d 605, 

608-09 (10th Cir.1983). He made numerous 
objections and motions throughout the 
guilt and sentencing stages. Having re- 
viewed the entire record, we are convinced 
this attorney was an effective advocate. 

Iv 

[15] Coleman asserts that the trial 
court’s refusal to appoint a private investi- 
gator to help his attorney violated his due 
process and equal protection rights. Okla- 
homa only permits courts in counties With 
populations grea t 
private investigators to aid indigent defend- 
ants. Okla.Stat. tit. 19, § 138.6. The trial 

court found that it had no authority to 

appoint an investigator because the trial 
was taking place in Muskogee County, 
which has fewer than 200,000 people. 

We need not decide whether the Consti- 
tution requires appointment of a private 
investigator to aid in the defense’s prepara- 
tion for trial if the defendant makes no 

showing that the requested-—assistamce 
would be beneficial. Caldwell v. Mississip- 
pi, 472 US. 320, — n. 1, 105 S.Ct. 2633, 
2637 n. 1, 86 L.Ed.2d 231 (1985). Other 
than the possible existence of one unnamed 

we cannot consider this issue. It has not been 
raised either here or in the state courts. Such 
an issue must be presented to the state courts 
before it may be treated in federal proceedings. 
See Crisp v. Mayabb, 668 F.2d 1127, 1132 (10th 
Cir.1981), cert. denied, 459 U.S. 827, 103 S.Ct. 
62, 74 L.Ed.2d 64 (1982); Drennon v. Hess, 642 

F.2d 1204, 1205 (10th Cir.1981); L. Yackle, Post- 
conviction Remedies § 67, at 285-86 (1981).    



    

      

—, 106 Sx 

   

  

   

   
   

  

   
   

    

   
   

    

   

  

   

   

    

   

   
   

  

   
   
   

    

AN experienced 
participated 

Although thw 
leaguereqd, we 

nded Coleman 
change of ven 
guilt stage of 

eman had es 
s brother hail 
into a river 
722 F.2d 60h, 

ade numerous 
roughout the 

Having re 

are convinced 

ive advocate 

at the trial 

ivate investi: 

lated his due 

ights. Okla. 
ounties with 

00 to appoint 
gent defend. 

6. The trial 
puthority to 
se the trial 

fee County, 
people. 

the Consti- 
f a private 
e’s prepara- 

makes no 

assistance 
. Mississip- 

S.Ct. 2633, 

B5). Other 
€ unnamed 

    

   

      

   

  

   
   
   
   

      

as not been 

ourts. Such 
state courts 

proceedings. 
» 1132 (10th 

7, 103 S.Ct. 
v. Hess, 642 

ackle, Post- 

(1981).     

B
H
A
 

r
R
 

Re
 

                        

  

  
  

  

  

COLEMAN v. BROWN 1237 
Cite as 802 F.2d 1227 (10th Cir. 1986) 

alibi witness, Coleman has alleged only 

that. his attorney was overworked, that 

many witnesses were involved in the casé~ 

and that the state’s resources far sur- 

passed those of the defense! These 

factors do not invariably preclude a de- 

fense attorney from rendering a reason- 

ably effective defense. Cf. United States 

v. Cronic, 466 U.S. 648, 663, 104 S.Ct. 2039, 

2049, 80 L.Ed.2d 657 (1984) (that govern- 

ment had more time to prepare case does 

not necessarily result in prejudice to de- 

fendant). Even if such general showings 

would have been sufficient before trial, 

they are insufficient post-trial. See Mason 

v. Arizona, 504 F.2d 1345, 1852-53 (9th 

Cir.1974); see also Caldwell, 472 US. at 

— 1. 1, 105 S.Ct. at 2637 n. 1. We hold 

that Coleman has not demonstrated sub- 

stantial prejudice from the lack of an inves- 

tigator. 

y 

A 

Coleman contends that, in the state’s 

closing arguments during the trials guilt 

stage, the state improperly (1) commented 

on Coleman's failure to testify; (2) told the 

jury they were the last link in the chain of 

law enforcement; (3) attempted to inflame 

the jury and evoke sympathy for the vie- 

tim; and (4) commented on issues not in 

evidence. 

[16] In a habeas proceeding, our review 

of a state prosecutor’s allegedly prejudicial 

remarks is limited. “A federal court does 

not have supervisory jurisdiction over state 

courts and may overturn a state court con- 

viction only when a defendant's constitu- 

tional rights have been violated.” Sanchez 

v. Heggie, 531 F.2d 964, 967-68 (10th Cir.) 

(citing Donnelly v. DeChristoforo, 416 

U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 

(1974), cert. denied, 429 U.S. 849, 97 S.Ct. 

185, 50 L.Ed.2d 122 (1976); accord Darden, 

— US. at w= 106 S.Ct. ut 2472. Re- 

marks that would cause us to reverse in a 

9. The only specific evidence that Coleman has 

brought to the court's attention are reports sug- 

gesting that one Of the state's witnesses may 

have committed perjury. As discussed above, 

direct appeal of a federal conviction are not 

necessarily grounds for reversal when spo- 

ken in state courts. Brooks v. Kemp, 762 

F.2d 1383, 1399 (11th Cir.1985) (en banc), 

vacated on other grounds, — Us. —, 

106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); Cobb 

v. Wainwright, 609 F.2d 754, 7155 (5th Cir.), 

cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 

64 L.Ed.2d 857 (1980). Further, to deter- 

mine whether a state prosecutor’s remarks 

were so flagrant as to deny a defendant a 

fair trial, we must take notice of all the 

surrounding circumstances, including the 

strength of the state’s case. See United 

States v. Haskins, 737 F.2d 844, 850 (10th 

Cir.1984)); see also Darden, — US. at 

——, 106 S.Ct. at 2472. 

[17] In his closing argument during the 

guilt stage, the prosecutor asked: “Why 

did he leave at 3:15 with a .28 gauge shot- 

gun in his hand? Why did he leave with 

the shotgun ....” R. VII, 832. He contin- 

ued along these lines, prefacing bits of 

unanswered inculpatory evidence with the 

word “why.” Coleman construes this as 

unconstitutional comment on his silence. 

Further, Coleman observes, the state com- 

mented on the “uncontradicted” evidence. 

Id. 

In Knowles v. United States, 224 F.2d 

168 (10th Cir.1955), we held that reversible 

error exists if a prosecutor's remarks were 

“manifestly intended or [were] of such 

character that the jury would naturally and 

necessarily take [them] to be a comment on 

the failure of the accused to testify.” Id. 

at 170; accord United States v. Hooks, 780 

F.2d 1526, 1533 (10th Cir.), cert. denied, 

— 1.8, = 106 S.Ct. 1651, 90 L.E4.2d 

199 (1986). In Knowles, a tax fraud case, 

the prosecutor stated that the defendant 

“had every opportunity in the world given 

to make an explanation of it, to prove it 

was in error, to cast doubt upon it. And it 

wasn’t done.” Knowles, 224 F.2d at 170. 

We construed this as a comment on the 

we do not believe that introduction of this evi- 

dence would have altered the outcome of either 

stage of the trial. 

 



     

              

   
ilar crime 

05 (intent 

Federal 
" the Sev- 

Pub. Co. 

    

   

  

   

   
   

   

   
   

   

      

   

    

   

   

  

7 the Com- 
bns of the 

speak of a 

he phrase 

he law’ re- 

dant knew 

ily, that is 

fense, and 

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501 F.2d 
fenied, 419 

Ed.2d 824 

k, 692 F.2d 

Thus the 

avoided.” 
tions For 

Co. 1984). 

bressed by 
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of the Su- 

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e itself ? or 
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at that result 

his conduct, 

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Marvin, 687 

. denied, 460 
d 342 (1983), 

not to give 
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that opinion 

require, for 

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Cite as 763 F.2d 975 (1985) 

B. Other Objections to the Instruc- 

tions. 

Appellant claims that the trial judge 

summarized the evidence in a manner that 

was unfair to him, that he virtually direct- 

ed a verdict on the misapplication count, 

and that he failed to submit appellant's 

theory of the case to the jury. These con- 

tentions are without merit. Judge Devitt's 

summary of the respective positions of the 

parties was neutral (T. 1527-30). He men- 

tioned in his comments the defenses upon 

which appellant could justifiably rely. We 

find no indication of bias or prejudice in the 

charge to the jury. 

[6] As to the contention that Judge 

Devitt directed a verdict on the misapplica- 

tion count, it is sufficient to say that no 

more was said in his remarks than appel- 

lant and his attorney admitted in the course 

of the trial. Counsel in his opening state- 

ment told the jury that except for the issue 

of intent, there would be substantial agree- 

ment with the government's case (T. 63). 

Then in summation, appellant's counsel 

stated that the real essence of the case was 

whether the government had proved an 

intent to deceive (T. 1480-81). Appellant 

admitted that approval of the loan commit- 

tee had not been obtained and that proper 

entries had not been made, in addition to 

other significant facets of the govern- 

ments case (T. 1331, T. 1334). These ad- 

missions were acknowledged by appellant's 

counsel in summation (T. 1481). We agree 

that the testimony of appellant and state- 

ments of his counsel were tantamount to 

admission of the second element of the 

offense of misapplication: “That the de- 

fendant misapplied the funds or credits of 

the bank.” The issue in the case was 

whether the government could establish el- 

ement number three: “That the defendant 

acted willfully and with intent to injure or 

defraud the bank, or to deceive its officers, 

directors, and examiners.” (T. 1519.) This 

placing the offense of acquiring and possessing 

food stamps in that narrow range of cases 

was made perfectly clear in the instruc- 

tions of the trial judge (T. 1530). 

The convictions are affirmed. 

    

     KEY NUMBER SYSTEM    O 

—
“
m
E
 

Jerry L. VASSAR, Appellant, 

Vv. 

Herman SOLEM, Warden, South Dakota 

State Penitentiary and Mark V. Meier- 

henry, Attorney General of the State of 

South Dakota, Appellees. 

No. 84-1368. 

United States Court of Appeals, 

Eighth Circuit. 

Submitted Feb. 15, 1985. 

Decided June 4, 1985. 

Appeal was taken from denial by the 

United States District Court for the Dis- 

trict of South Dakota, John B. Jones, J., of 

petition for writ of habeas corpus. The 

Court of Appeals, Ross, Circuit Judge, held 

that: (1) state court did not err in denying 

defendant's motion to appoint expert to 

determine his mental competency when he 

confessed; (2) fact that defendant was not 

advised of his rights when he confessed 

after polygraph examiner discontinued ex- 

amination did not make confession involun- 

tary where defendant had been informed of 

his rights before taking the examination; 

(3) even if trial judge was mentally ill when 

he denied defendant's motion for disqualifi- 

cation, relief was not warranted where 

judge made no specific ruling which preju- 

diced defendant; and (4) trial court did not 

abuse its discretion in denying defendant's 

motion for new trial. 

Affirmed. 

where such knowledge is essential. 

VASSAR v. SOLEM 
975 

A
 

ne
 

A
 

ol
 

 



    
    

    

  

  

976 

(ips ¢=302.2(2) 
Defendant's request for use of expert 

witness in preparation of his defense must 
be measured by standard of reasonableness 
and should be allowed when facts reason- 
ably suggest that use of expert would be 
beneficial in preparing case. 

2. Criminal Law &=525 

Extent to which mental competence 
must be investigated before confession 
may be found voluntary is essentially ques- 
tion for trial court discretion. 

3. Costs ¢=302.4 

State trial court did not abuse its dis- 
cretion in denying defendant’s motion to 
appoint expert to determine his mental 
competency when he confessed where de- 
fendant had testified at hearing on volun- 
tariness of his confession that he had been 
given his rights before he confessed, that 
he understood those rights, that he had not 
been threatened or coerced into giving his 
confession, and that he had been involved 
with police procedures on previous occa- 
sions. 

4. Criminal Law ¢&=517.2(3) 
Fact that defendant was not advised of 

his rights when he confessed after poly- 
graph examiner discontinued examination 
did not make confession involuntary where 
defendant had been informed of his rights 
before taking the examination. 

5. Habeas Corpus ¢25.1(1) 
Even if trial judge was mentally ill 

when he denied defendant’s motion for dis- 
qualification, habeas corpus relief was not 
warranted where judge made no specific 
ruling which prejudiced defendant. 

6. Criminal Law &=911, 1156(1) 

Denial of motion for new trial is within 
discretion of trial court and will not be 
disturbed on appeal unless there has been 
abuse of discretion. 

7. Criminal Law ¢956(4) 

Trial court did not abuse its discretion 
in denying defendant a new trial on basis 

* The HONORABLE ALBERT G. SCHATZ, United 
States District Judge for the District of Nebras- 
ka, sitting by designation. Judge Schatz partici- 
pated in oral argument and the subsequent con- 

  

763 FEDERAL REPORTER, 2d SERIES 

that defendant was prevented from testify. 
ing on his own behalf because of threats 
made to him by victim’s son-in-law where 
defendant failed to show that his election 
not to testify prejudiced him in any way. 

John Schlimgen, Sioux Falls, S.D., for 
appellant. 

John Bastian, Asst. Atty. Gen., Pierre, 
S.D., for appellees. 

Before ROSS and BOWMAN, Circuit 
Judges, and SCHATZ,* District Judge. 

ROSS, Circuit Judge. 

Jerry L. Vassar appeals the district 
court’s denial of his petition for a writ of 
habeas corpus. Vassar, while in the custo- 
dy of the Sioux Falls, South Dakota Police 
Department on another matter, agreed to 
take a polygraph examination regarding a 
fire which occurred at his girlfriend’s 
home. One person was killed during the 
fire. After the examination, Vassar was 
told that his responses indicated he was 
having difficulty with some of the ques- 
tions. When asked by the examiner if he 
would like to talk about it, Vassar confess- 
ed to starting the fire. At his trial, his 
motion to suppress the confession was de- 
nied, and Vassar was convicted of arson 
and murder. His convictions were af- 
firmed on appeal. State v. Vassar, 279 
N.W.2d 678 (S.D.1979). 

Vassar argues on appeal that the trial 
court erred in: (a) denying his motion to 
appoint a psychologist to determine his 
mental competence at the time of his con- 
fession; (b) refusing to suppress his con- 
fession; (c) refusing to disqualify itself; 
and (d) denying his motion for a new trial. 
We affirm. 

I. MENTAL COMPENTENCY 

Vassar first argues that the trial court’s 
denial of his motion to appoint an expert 

ference of the three judges. The opinion 
reached by the judges in conference was unani- 
mous to affirm. Judge Schatz died on April 30, 
1985. 

A Eo  



nted from testify. 

ccause of hrects 

son-in-law whepe 

that his election 
him in any way, 

Falls, S.D., for 

ty. Gen., Pierre 

PWMAN, Circuit 

istrict Judge. 

pals the district 

ion for a writ of 
‘hile in the custo- 

th Dakota Police 
ratter, agreed to 

tion regarding a 
his girlfriends 

cilled during the 

ion, Vassar was 

ndicated he was 
e of the ques- 

e examiner if he 

, Vassar confess- 
At his trial, his 
nfession was de- 

nvicted of arson 
ctions were af- 

v. Vassar, 279 

al that the trial 
hg his motion to 

0 determine his 
time of his con- 

uppress his con- 

disqualify itself; 
L for a new trial. 

ENCY 

the trial court's 
bpoint an expert 

pes. The opinion 
ference was unani- 
z died on April 30, 

  

  

  

VASSAR v. SOLEM 
9717 

Cite as 763 F.2d 975 (1985) 

for determining his mental capacity at the 

time he gave his confession denied him his 

rights to due process, equal protection and 

effective assistance 0 counsel. The court 

held a hearing to determine whether Vas- 

sar gave his confession knowingly and vol- 

untarily pursuant to the rule in Jackson v. 

Denno, 318 US. 368, 84 S.Ct. 1774, 12 

L.Ed.2d 908 (1964). At the hearing, a li- 

censed psychologist testified that petition- 

er's 1.Q. scores from grade school ranked 

in the lower seventh percentile. After the 

hearing, the trial court refused to suppress 

Vassar's confession and, furthermore, it 

denied Vassar’s motion to appoint a psy- 

chologist, stating that Vassar had not been 

tested for approximately eight years and 

had not adequately specified reasons why 

the services were necessary. The court 

suggested, however, that it might rule in 

favor of a subsequent motion upon a better 

showing that such an appointment was nec 

  

1,2] A defendant's request for the use 

an expert witness in preparation of his 

efense must be measured by a standard of 

easonableness and should be allowed 

when the facts reasonably suggest that use 

of an expert would be beneficial to the 

accused in preparing his case. United 

States v. Schultz, 431 F.2d 907, 911 (8th 

Cir.1970); cf Ake v. Oklahoma, — U.S. 

——, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 

(1985) (“When the defendant is able to 

make an ex parte threshold showing to the 

the trial court. Furthermore, Vassar testi- 

“Treg atthe Denno hearing that he had been 

given his Miranda rights before he con- 

fessed, that the rights, that 

he bad not been threatene
d or coerced Ink 

giving his confession, and that he had, on 

previous ecasions. been involved with po- 

lice procedures. 
i i 

the trial court held Vassar’s confession ad- 

missible and refused to appoint a psycholo- 

gist. On the facts of this case, we believe 

the court did not abuse its discretion, and 

accordingly, Vassar’s claim provides no ba- 

sis for habeas corpus relief. See, e.g. 

Corn v. Zant, 108 F.2d 549, 567 (11th Cir. 

1983), cert. denied, — us — 104 5.4 

2670, 81 L.Ed.2d 375 (1984); Knott v. How- 

ard, 511 F.2d 1060, 1061 (1st Cir.1975) (per 

curiam). 

  

  

  

  

  

II. VOLUNTARINESS OF CONFES- 

SION 

[4] Vassar next argues that his confes- 

sion was involuntary and should have been 

suppressed because he did not knowingly 

and intelligently waive his constitutional 

rights under Miranda v. Arizona, 384 Us. 

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 

Prior to talking with the police, Vassar was 

informed of his Miranda rights and was 

informed again before taking the poly- 

graph examination. He was not, however, 

informed of his rights when the examiner 

discontinued the examination and Vassar 

gave an oral confession. A written state- 

ment was prepared from his oral confes- 

  
significant factor in his defense, the need 

for the assistance of a psychiatrist is readi 

ly apparent.”)/  HOWeVer, “the extent to 

which mental competence must be investi- 

gated before 2 confession may be found 

voluntary is essentially 2 question for trial 

court discretion.” United States ?. Silva, 

418 F.2d 328, 331 (2d Cir.1969); see also 

Williams v. Martin, 618 F.2d 1021, 1026 

(4th Cir.1980). (“The determination of the 

defendant's need for expert assistance 1s 

committed to the sound discretion of the 

trial judge.”) 

[3] In this case, Vassar's attorney did 

not supplement his motion as suggested by 

trial court that his sanity is likely to be 5 

  

  

sion, and he initialed the Miranda warn- 

ings at the top of his statement. At the 

suppression hearing, Vassar testified that 

he had voluntarily consented to the poly- 

graph examination and further, that he had 

understood the rights which were read to 

him before the examination began. 

Vassar invokes United States v. Little 

Bear, 583 F.2d 411 (8th Cir.1978), in which 

this court stated that when a polygraph 

examination is administered to a suspect 

while under criminal investigation, full in- 

structions of his rights should be fur 

nished. Id. at 414. This did take place in 

this case prior to the examination. Our 

inquiry into the voluntariness of Vassar’s   

  

    

 



  

   

  

  

A
N
 

0 
A 
o
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Aa) UNITED lL v.. GRESCHNER 
Cite as 802 F.2d 

entre 
373 373 (10th Cir. 1986) 

nary and necessary,” but rather either capi- 1. Criminal Law &665(1) tal contributions by taxpayer to Bethinol or 
loans by him to the corporation. We also 
find no basis for a loss deduction under 
LR.C. § 165(c). Finally, the negligence 
penalty assessed under L.R.C. § 6653(a) is 
reversed. 

The judgment of the Tax Court is AF- 
FIRMED IN PART and REVERSED IN 
PART. 

W 
o £ KEY NUMBER SYSTEM 

T 

UNITED STATES of America 
Plaintiff-Appellee, 

Vv. 

John Andrew GRESCHNER, Ronnie 
Joe Criswell, Defendants-Appellants. 

Nos. 84-2032, 84-2033. 

United States Court of Appeals, 
Tenth Circuit. 

Sept. 25, 1986. 

Defendants were convicted in the Unit- 
ed States District Court for the District of 
Kansas, Richard Dean Rogers, J., of first- 
degree murder and conspiracy to commit 
murder, and they appealed. The Court of 
Appeals, Holloway, Chief Judge, held that: 
1) error arising when trial court refused to 
Sequester witnesses who had testified was harmless; (2) defendants were not entitled 

appointment of penologist who would 
testify regarding danger of living in a fed- 
eral penitentiary; (3) denying defendants’ Motion to subpoena three fellow inmates at 
‘OVernment’s expense was not abuse of 

Rule regarding sequestration of wit- 
nesses requires not only that prospective 
witnesses be excluded from the courtroom, 
but also that they be prohibited from dis- 
cussing the case with other witnesses. 
Fed.Rules Evid.Rule 615, 28 U.S.C.A. 

2. Criminal Law €=1168(2) 
Error arising when trial court refused 

to sequester witnesses who had testified 
was harmless, absent showing that the wit- 
nesses discussed case with other witnesses 
who had not testified. Fed.Rules Evid. 
Rule 615, 28 U.S.C.A. 

3. Costs ¢2302.2(2) 

Defendants charged with murdering 
fellow inmate while incarcerated were not 
entitled to appointment of penologist who 
would testify regarding danger of living in 
a federal penitentiary, where penologist did 
not know particular circumstances sur- 
rounding defendants’ confinement. 18 US. 
C.A. § 3006A(e)(1). 

4.) Costs ¢302.2(2) 

Court need not appoint expert unless it 
is convinced that such services are neces- 
sary to adequate defense; furthermore, it 
is defendant’s burden to make showing of 
necessity. 18 U.S.C.A. § 3006A(e)(1). 

o. Constitutional Law €=268(10) 
Defendants who were charged with 

murdering fellow inmate while incarcerated 
did not make adequate showing of need for 
testimony of penologist regarding prison 
conditions as predicate for their claim that 
denial of their motion to appoint penologist 
violated their Fifth Amendment right to 
due process, where defendants solicited 
same evidence from a number of inmate 
witnesses. U.S.C.A. Const.Amend. 5. 
6. Criminal Law &1147 

Circumstances and correctness of rul- 
ings on subpoenas would be considered un- 
der abuse of discretion standard, declining 
to follow United States v, Sims, 637 F.2d i 625 (9th Cir.); Uni ¢ . discretion; and (4) defendants waived ex ( ir.); United States v. Barker, 553 

P F.2d 1013 (6th Cir); Ta arte hearing on their pretrial motions. (6th Cir); Welsh v. United States, 404 F.2d 414 (5th Cir.); and Green- Affirmed, well v. United States, 317 F.2d 108 

  

  

      

    

   

    

  

    
   

    

    

    

   

   

        

   
   

      

   

      

   

    

  
  

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B
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374 802 FEDERAL REPORTER, 2d SERIES 

(D.C.Cir.). Fed.Rules Cr.Proc.Rule 17(b), 

18 US.C.A. 

7. Witnesses &=2(1) 

Denying defendants’ motion to subpoe- 

na three fellow inmates at Government's 

expense so that they could testify to cir- 

cumstances surrounding prison stabbing in- 

cident was not abuse of discretion, where 

defendants were able to present evidence 

regarding such matters from other 

sources. Fed.Rules Cr.Proc.Rule 17(b), 18 

U.S.C.A. 

8. Costs <=302.3 

Conducting hearing on defendants’ 

pretrial motions for investigative aid with 

government counsel present, rather than 

ex parte, was error. Fed.Rules Cr.Proc. 

Rule 17(b), 18 U.S.CA; 18 US.CA. 

§ 3006A(e). 

9. Criminal Law <=1031(1), 1178 

Defendants waived ex parte hearing on 

their pretrial motions, where defendants 

were accompanied by standby counsel who 

did not object to presence of government 

counsel, issue was not raised at trial, and 

issue was not asserted by defendants or 

their appointed counsel on appeal. Fed. 

Rules Cr.Proc.Rule 17(b), 18 U.S.C.A.; 18 

U.S.C.A. § 3006A(e). 

10. Criminal Law €=854(1), 867, 868 

Refusing to declare mistrial, sequester 

jury or conduct additional voir dire of the 
jury after newspaper article was published 

during fourth day of trial, which focused 
on unusually heavy security that accompa- 

nied the trial and noted that defendants 
and many of their witnesses had criminal 
records and allegedly were members of a 

white supremacy organization, was not er- 

ror, where evidence regarding such mat- 

ters had already been admitted and jury 
had been repeatedly admonished not to 
read any newspaper reports about the case. 

* The Honorable Lee R. West, United States Dis- 
trict Judge for the Western District of Okla- 

11. Witnesses &=372(2) 

Government did not violate evidence 

rule prohibiting admission of evidence of 

convictions more than ten years’ old by 

cross-examining defense witness about his 

prison experience, where purpose of the 

cross-examination was to reveal witness’ 

bias by showing that he may have tended 

to align himself with defendants, who were 

also inmates, and against Government. 

Fed.Rules Evid.Rule 609(b), 28 U.S.C.A. 

12. Witnesses &268(7) 

Government could cross-examine wit- 

ness, who had testified that inmate whom 

he had seen stabbed was the only person 

he had ever seen “getting killed,” about 

incident in which witness had struck a man 

with an axe, to show that witness had 

testified falsely during direct examination, 
without violating rule relating to impeach- 

ment with prior convictions. Fed.Rules 

Evid.Rules 608(b), 609, 28 U.S.C.A. 

13. Homicide &=169(3) 

Refusing to permit defense witness, 

who had seen defendants stab fellow in- 

mate while incarcerated, to testify concern- 

ing his state of mind during a prior prison 

altercation was not abuse of discretion. 

Ira R. Kirkendoll, Asst. Federal Public 

Defender, Kansas City, Kan. (Charles D. 

Anderson, Federal Public Defender, Wich- 

ita, Kan., was on the brief), for defendants- 

appellants. 

John Andrew Greschner and Ronnie Joe 

Criswell, pro se. 

Alleen S. Castellani, Asst. U.S. Atty, 

Topeka, Kan. (Benjamin L. Burgess, Jr. 

U.S. Atty., Wichita, Kan., was also on the 

brief), for plaintiff-appellee. 

Before HOLLOWAY, Chief Judge, SEY- 

MOUR, Circuit Judge, and WEST, District 

Judge *. 

homa, sitting by designation. 

  

  

HOLLOWA] 

The defend 

chner and Rd 

their convictid 

degree murde 
murder.! The 

cide committeq 

in Leavenwo 

Government 

October 6, 194 

well struck in 

and then both 
son with hom¢ 

flicting numen 

back. The wo 

exsanguinatio 

nesses saw on 

bing of Andre 

The defenda 
through sever] 

own testimon 

defense. The 
dreason planng 
operation of | 
cured a knife 4 

move against 

word of the th 
an unidentified 

with a knife an 

ant with a pipe 
chner with a 
and Criswell f{ 

pipe and got A 

these witnesse 
son. Greschne 

dered the knivj 

Appellants at 4 

Defendants 

trial but also 
court appointe; 

resulted in ve 
defendants, aff 
eration. On ar 

challenge the s 

support their cq 
uously argue, 4 

trial court com 
following respq 

I. Both Greschn 
two life senten 
tion and one d  



  

a
l
a
 

E
T
 

  

HOLLOWAY, Chief Judge. 
The defendants-appellants John Gres- 

chner and Ronnie Criswell timely appeal 

their convictions and sentences for first 

degree murder and conspiracy to commit 

murder.! The cases arose out of a homi- 

cide committed at the federal penitentiary 
in Leavenworth, Kansas. 

Government witnesses testified that on 

October 6, 1983 at a prison stairwell Cris- 

well struck inmate Andreason with a pipe 

and then both defendants stabbed Andrea- 

son with homemade knives, repeatedly in- 

flicting numerous wounds to Andreason’s 

back. The wounds resulted in his death by 

exsanguination. Some Government wit- 

nesses saw only Greschner doing the stab- 
bing of Andreason. 

The defendants’ version of the incident, 

through several inmates’ and Greschner’s 

own testimony, established a case of self- 
defense. The witnesses testified that An- 
dreason planned to take over a gambling 
operation of defendants; Andreason se- 
cured a knife and sought help to make his 
move against defendants; Greschner got 
word of the threat and also armed himself; 
an unidentified inmate lunged at Criswell 
with a knife and Criswell struck this assail- 
ant with a pipe; Andreason lunged at Gres- 
chner with a knife and Greschner was cut, 
and Criswell then hit Andreason with a 
pipe and got Andreason’s knife. None of 
these witnesses saw Criswell stab Andrea- 
son. Greschner and Criswell both surren- 
dered the knives they then had. Brief for 
Appellants at 4-5. 

Defendants represented themselves at 
trial but also had the assistance of two 
court appointed attorneys. The jury trial 
resulted in verdicts of guilty as to both 
defendants, after about two days of delib- 
eration. On appeal, the defendants do not 
challenge the sufficiency of the evidence to 
Support their convictions, but they do stren- 
Uously argue, among other things, that the 

1 court committed reversible error in the 
following respects: (1) by failing to admon- 

L Both Greschner and Criswell were each given 
: 0 life se€ntences, one on the murder convic- 
on and one on the conspiracy conviction, to 

   UNITED STATES v. GRESCHNER 375 
Cite as 802 F.2d 373 (10th Cir. 1986) 

ish the witnesses not to discuss their testi- 

mony during the course of the trial after a 

motion for sequestration of witnesses; (2) 

by refusing to appoint a penologist at the 

Government's expense to assist in the de- 

fendants’ preparation for trial and to testi- 

fy on their behalf; (3) by refusing to sub- 

poena certain lay witnesses at the Govern- 

ment’s expense; (4) by refusing to declare 

a mistrial, sequester the jury, or conduct 

additional voir dire of the jury after an 

allegedly prejudicial newspaper article was 

published during the fourth day of trial; (5) 

by improperly allowing a Government at- 

torney to question defense witnesses Mar- 

one and Crenshaw about convictions over 

ten years old; and (6) by erroneously limit- 

ing Criswell’s questioning of Charles Gary, 

who was testifying for the defense, about 

his state of mind during a prison free-for- 
all. 

I 

[1] Prior to trial the defendants re- 

quested that the court sequester prospec- 

tive witnesses pursuant to Fed.R.Evid. 615. 

I R. 56. This Rule provides in pertinent 

part: “At the request of a party the court 

shall order witnesses excluded so that they 

cannot hear the testimony of other witness- 

es, and it may make the order of its own 

motion.” Fed.R.Evid. 615. The trial court 
granted the request. II R. 167. After the 

second prosecution witness concluded his 

testimony, the defense suggested that he 

“be sequestered away from the other wit- 

nesses until such time as they have testi- 

fied.” VII R. 265. The court denied this 

request, noting that it had “never adopted 

that rule of sequestering witnesses after 

they have testified.” VII R. 265. On ap- 
peal the defendants argue that Rule 615 

requires not only that prospective witness- 

es be excluded from the courtroom, but 

also that they be prohibited from discuss- 
ing the case with other witnesses. We 
agree. 

run consecutively to the prison terms they are 
already serving. III R. 436, 437. 

    

   
  

  

  

   

    
     

    
    
          

    
    
     
       

   

      

   

  

   

   
   
    

      

   

  

   

  

   
   
   

  

   
   

            

   

   
   
   
   

  

   

    

 



  

376 802 FEDERAL REPORTER, 2d SERIES 

[2] The trial judge was in c¢rror in his 

view that the Rule does not include this 

protection. Our decisions have made clear 

that “a circumvention of the rule does 

occur where witnesses indirectly defeat its 

purpose by discussing testimony they have 

given and events in the courtroom with 

other witnesses who are to testify.” Unit- 
ed States v. Johnston, 578 F.2d 1352, 1355 

(10th Cir.), cert. denied, 439 U.S. 931, 99 

S.Ct. 321, 58 L.Ed.2d 325 (1978). Denial of 
such protection of the Rule creates a clear 

risk of reversal. See United States v. Bu- 

chanan, 787 F.2d 477, 484-85 (10th Cir. 

1986); United States v. Prichard, 781 F:2d 

179, 183 (10th Cir.1986). United States 

. Johnston, 578 F.2d at 1355. After 

review of this record we conclude, how- 

ever, that the error was harmless under 28 

U.S.C. § 2111 and Fed.R.Crim.P. 52(a), and 

not one requiring reversal.’ In this circuit, 

the defendant must make a showing of 

probable prejudice or an abuse of discretion 

as a predicate to reversal based on a trial 

court’s disregard of Rule 615. See United 

States v. Buchanan, 787 F.2d at 485; 

United States v. Prichard, 781 F.2d at 183 

(10th Cir.1986); see also United States v. 

Johnston, 578 F.2d at 1355-56. Here no 

such showing was made, for the defend- 

ants have done nothing more than spec- 

ulate about the possibility of conversations 

between the witnesses. See United States 

v. Prichard, 781 F.2d at 183 & n. 2; Unit- 

ed States v. Johnston, 578 F.2d at 1356. 

Such conjecture does not provide this court 

with any meaningful guidance in assessing 

the potential for actual prejudice to the 
defendants or of an abuse of discretion, 

and we will not reverse since no such show- 

ing was made. 

II 

[3] The defendants argue that the trial 
court erred in denying their motion to ap- 
point a penologist at the Government's ex- 
pense. Prior to trial, the defendants asked 
the court to appoint Bill Scott as a penolo- 

gist, arguing that such assistance was 

2. Defendants argue for a presumption of preju- 
dice and reversal citing, inter alia, United States 

guaranteed by the Criminal Justice Act. I 

R. 121. That statute provides as follows: 

Counsel for a person who is financially 
unable to obtain investigative, expert, or 

other services necessary for an adequate 

defense may request them in an ex parte 

application. Upon finding, after appro- 

priate inquiry in an ex parte proceeding, 

that the services are necessary and that 

the person is financially unable to obtain 

them, the court ... shall authorize coun- 

sel to obtain the services. 

18 U.S.C. § 3006A(e)(1) (1982). The trial 
court conducted a hearing on the motion. 

At this hearing, defendant Greschner ar- 

gued that Scott had obtained expertise on 

prison environments by virtue of his experi- 

ence as an inmate and prison administrator. 

Greschner also contended that Scott's testi- 

mony was necessary for the jury to fully 

understand the danger of living in.a federal 
penitentiary. V R. 7-10. The trial court 

denied the motion. On appeal, the defend- 
ants contend that the ruling was erroneous 

under § 3006A(e) and that it violated their 

Fifth Amendment right to due process. 

[4] We reject both contentions. The 

court need not appoint an expert unless it 

is convinced that such services are neces- 

sary to an adequate defense. Christian v. 
United States, 398 F.2d 517, 519 (10th Cir. 
1968). Furthermore, it is the defendant's 

burden to make a showing of necessity. 

See United States v. Mundt, 508 F.2d 904, 

908 (10th Cir.1974), cert. denied, 421 U.S. 

949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975). 

The district court found four_shortcom- 
ings in the defendants’ proffef. First, the 

court rejected Scott’s-qualifications as an 
expert. V R. 10; “Second) the court rea- 
soned that the same—teStimony could be 
given by other witnesses. II R. 193; V R. 
10. Third, the court believed that the evi- 

dence would have little probative value be- 
cause Scott did not know the particular 
circumstances surrounding the defendants’ 
confinement. II R. 153; V R. 10. Finally, 

the court stated that the defendants had 

v. Ell, 718 F.2d 291 (5th Cir.1983). 

  
  

failed to provide s 
garding Scott's lo 
find no error 

§ 3006A(e)(1).3 
Deutsch, 599 F.2d 
(applying “clear ey 
ing trial court’s 
§ 3006A), cert. de 

S.Ct. 283, 62 L.Ed 

Further, the def 

ruling violated 

right to due proce 

has long held that 

the ‘basic tools o 

Britt v. North Ca 

92 S.Ct. 431, 433 

see, e.g., Griffin v. 

76 S.Ct. 585, 59( 

(Equal Protection 

provide indigent 

on first appeal as 

Court extended t 

psychiatric expe 
homa, 470 U.S. 68 

L.Ed.2d 53 (1985). 

[51 Without de 

stitutional guaran 

the services of a 

Scott, we feel t 

have not made 2 

need for the peno 

their constitutions 

Brown, 802 F.2d 

cording to the 
have testified tha 

safely seek assist 

lishment” figureq 
this evidence wo 

we do not think 

prived of any s 

Caldwell v. Missi) 
n. 1, 105 S.Ct. 263 

(1985); see also 

3. The defendants r 
Schultz, 431 F.2d 

Schultz, the Eight 
expert assistance 
dard of reasonab 
Schultz was decid 
adopted some ve 
test. See United SJ 
(Sth Cir.1973) (exp 
ed under § 3006A(  



  

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E 

UNITED STATES v. GRESCHNER 377 
Cite as 802 F.2d 373 (10th Cir. 1986) 

failed to provide sufficient information re- 

garding Scott's location. II R. 153. We 

find no error in the rulings under 

§ 3006A(e)(1).2 See United States nv. 

Deutsch, 599 F.2d 46, 49 & n. 5 (5th Cir.) 

(applying “clear error” standard in review- 

ing trial court’s findings of fact under 

§ 3006A), cert. denied, 444 U.S. 935, 100 

S.Ct. 283, 62 L.Ed.2d 194 (1979). 

Further, the defendants contend that the 

ruling violated their Fifth Amendment 

right to due process. The Supreme Court 

has long held that indigents are entitled to 

the “basic tools of an adequate defense.” 

Britt v. North Carolina, 404 U.S. 226, 227, 

92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); 
see, e.g., Griffin v. Illinois, 351 U.S. 12, 19, 

76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) 
(Equal Protection Clause requires state to 

provide indigent with free trial transcript 

on first appeal as of right). Recently, the 

Court extended this principle to the use of 
psychiatric experts. See Ake v. Okla- 

homa, 470 U.S. 68, 105 S.Ct. 1087, 1097, 84 
L.Ed.2d 53 (1985). 

[5] Without deciding whether the con- 

stitutional guarantees apply with respect to 

the services of an expert witness such as 

Scott, “that the de ts here 
have not made an adequate showing of 
need for the penologist as a predicate for 
their constitutional claim. See Coleman v. 
Brown, 802 F.2d 1227 (10th Cir.1986). Ac- 
cording to the defendants, Scott would 
have testified that prison inmates cannot 
safely seek assistance from outside “estab- 
lishment” figures. Even conceding that 
this evidence would have been admissible, 
we do not think the defendants were de- 
prived of any substantial benefit. See 
Caldwell v. Mississippi, 472 U.S. 320, —— 
n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 
(1985); see also Westen, Compulsory Pro- 

  

3. The defendants rely heavily on United States v. 
Schultz, 431 F.2d 907, 911 (8th Cir.1970). In 

Schultz, the Eighth Circuit held that requests for 
expert assistance “must be evaluated on a stan- 

d of reasonableness.” Id. at 911. Since 
Schultz was decided, four other circuits have 

adopted some version of the reasonableness 
test. See United States v. Bass, 477 F.2d 723, 725 
(5th Cir.1973) (expert assistance must be provid- 
ed under § 3006A(e) “when the defense attorney 

     

    

  

cess II, 74 Mich.L.Rev. 191, 264 (1975) (“nei- 
ther [the indigent defendant] nor any other 

defendant has a constitutional interest in 

producing witnesses whose testimony could 

not reasonably affect the judgment of the 

jury”). The record shows that the defend- 

ants elicited the same evidence from a num- 

ber of inmate-witnesses. See VII R. 585, 

594-95 (testimony of Bryan); VIII R. 630, 

634, 643-44 (testimony of Crenshaw), 670 

(testimony of Lopez), 6952-96 (testimony of 

Kell), 730 (testimony of Mills), 915 (testimo- 

ny of Lanford), 946 (testimony of Dolph), 

1051, 1085 (testimony of Greschner). Un- 

like Mr. Scott, these inmates lived in Leav- 

enworth and had personal knowledge of 

the dangers facing Greschner and Criswell. 

We find no statutory or constitutional 
error in the denial of Scott's assistance. 

III 

The defendants also contend that the tri- 

al court erred in denying their motion to 

subpoena certain lay witnesses at the 

Government's expense. Prior to trial, the 
court granted eleven of the defendants’ 

nineteen requests. I R. 66; II R. 149; see 

IT R. 293, 297, 299, 301, 303, 304, 307, 309, 

11, 314, 336. Among those the court de- 

lined to subpoena were three federal pris- 

ners: Jay Rux, Keith Parkinson and Timo- 

hy Crawford. See II R. 149, 337. The 

defendants contend that the refusal to sub- 

poena these three witnesses violated Fed.R. 

Crim.P. 17(b), the Fifth Amendment due 

process guarantee and its equal protection 

component, and the Sixth Amendment com- 

pulsory process guarantee. 

Rule 17(b) provides as follows: 

The court shall order at any time that a 
subpoena be issued for service on a 

named witness upon an ex parte applica- 

makes a timely request in circumstances in 
which a reasonable attorney would engage such 
services for a client having the independent 
financial means to pay for them”); United States 
v. Alden, 767 F.2d 314, 318 (7th Cir.1984) 
(same); United States v. Durant, 545 F.2d 823, 

827 (2d Cir.1976) (test under § 3006A(e) is 

whether expert services are “reasonably neces- 
sary”); see also United States v. Chavis, 476 F.2d 
1137, 1143 (D.C.Cir.1973). 

    

I
 

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B
e
 
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dor supe 
724 FEDERAL REPORTER, 2d SERIES 

{ga 
Wes a7 

{ 

  

    
  

UNITED STATES of America, 
Plaintiff-Appellee, 

\4 

Douglas Chico PATTERSON, 
Defendant-Appellant, 

No. 83-4435 
Summary Calendar. 

United States Court of Appeals, 
Fifth Circuit, 

Jan. 30, 1984. 

Defendant was convicted before the United States District Court for the South- ern District of Mississippi, Walter L, Nixon, Jr., Chief Judge, of bank robbery, and he appealed. The Court of Appeals held that defendant was entitled to appointment and funding of fingerprint expert pursuant to indigency statute. 
Reversed and remanded. 

L/Costs ¢=302.2(2) 
Where government's case rests heavily on theory most competently addressed by expert testimony, indigent defendant must be afforded opportunity to prepare and present his defense to such theory with assistance of his own expert. 18 U.S.C.A. §73006A(e). 

2. Costs &=302.2(2) 
Indigent defendant was entitled to ap- pointment and funding of fingerprint ex- pert pursuant to indigency statute where testimony of two eyewitnesses was incon- sistent and not entirely conclusive, three of Government's four remaining witnesses tes- tified with regard to fingerprint evidence, and assistance of expert would have facili- tated either defendant's showing that la- tent palm print lifted from crime scene was blurred or defendant's Cross-examina- tion of Government's expert. 18 U.S.C.A. § 3006A(e). 

——————————— 

Robert Sneed, Jackson, Miss. 
pointed, for defendant-appellant. 

Court-ap- 

Pshon Barrett, Jackson, Miss., for plain- tiff-appellee. 

Appeal from the United States District Court for the Southern District of Mississip- pi. 

Before REAVLEY, RAN DALL and WIL- LIAMS, Circuit Judges. 

PER CURIAM; 

Appellant Douglas Patterson was convict- ed of bank robbery. On appeal, he contends that the district court erred in refusing to authorize employment at government ex- pense of a fingerprint expert pursuant to 18 USC. § 3006A(e) (1982). Patterson also challenges the admission of certain evi- dence. For the reasons set forth below, we reverse and remand. 

I. FACTUAL AND 
BACKGROUND. 

On September 25, 1981, the Centra] Bank of Mississippi was robbed by a black man and a black woman, both of whom were armed. At the bank’s closing time, the two waited for the last customer to leave and then approached the tellers’ windows, They told a teller, Wanda Buckley, and the branch manager, Clarence Marble, to back away from their windows and kneel on the floor. Buckley and Marble were repeatedly instructed not to look at the robbers’ faces, an order with which both of them substan- tially complied. 

PROCEDURAL 

After emptying the tellers’ windows of cash, the robbers ordered Buckley and Mar- ble into the bank’s vault. In the vault, the employees were again told to kneel on the floor and not to look at the robbers. After removing money from the vault, the rob- bers told Buckley and Marble to remain inside while they left. 

Buckley estimated that the two robbers were in the bank for a total of eight min- utes. Marble estimated the time to be five to six minutes, approximately four of which elapsed before the actual robbery began.  



    

     

      

  

Miss., for plain- 

   
    
    
    

    

States District 

Fict of Mississip- 

    

     
    

   

    

    
    DALL and WIL- 

   

  

   

  

   

    
   

  

   
   

    

   

  

   

  

   

   

   

  

   
   
   
   

    

   

  

   

  

   

  

    

   

   

   

    
     

  

     

      
          

on was convict- 

l=al, he contends 

in refusing to 
Fovernment ex- 

: pursuant to 18 

Patterson also 

bf certain evi- 

forth below, we 

ROCEDURAL 

= Central Bank 

7 a black man 

2 whom were 

= time, the two 

~ to leave and 

==" windows. 

azkley, and the 

}”zrble, to back 

= kneel on the 

zre repeatedly 

=abbers’ faces, 

“nem substan- 

kJ 

~" windows of 

Liev and Mar- 

ine vault, the 

.- kneel on the 

~uobers. After 

—zult, the rob- 

2 to remain 

   

   
   

  

    

       

  

   
   

   
   

  

   

  

   

  

= 1wWO0 robbers 

of eight min- 

—me to be five 

- “our of which 
~opbery began. 

   

   

    

      

   

     

       

    

  

UNITED STATES 
Cite as 724 F.2d 

Appellant Patterson was indicted on No- 

vember 8, 1981 for violating 18 U.S.C. 

§ 2113(a) & (d) (1982) and 18 USC. §2 

(1982)! On September 28, 1982, he filed a 

motion for appointment and funding of a 

fingerprint analyst pursuant to 18 U.S.C. 

§ 3006A(e), contending that the govern- 

ment intended to introduce fingerprint evi- 

dence at trial. See Record Vol. I at 118-20. 

After a hearing, the district court denied 

this request. At trial, three of the govern- 

ment’s six witnesses testified about finger- 

prints. Patterson was convicted and now 

appeals. 

II. ISSUE ON APPEAL. 

Patterson contends initially that the dis- 

trict court’s denial of his motion for the 

appointment of a fingerprint expert was 

prejudicial error. He alleges that he was 

thus deprived of the opportunity effectively 

to review and inspect the government's fin- 

gerprint evidence, and of the right mean- 

ingfully to cross examine the government's 

fingerprint witnesses. The government ar- 

gues that because the fingerprint evidence 

adduced at trial was not “pivotal” to the 

government's case, it was proper for the 

district court to deny Patterson's request. 

Moreover, the government asserts that if 

the district court erred in its denial, the 

1. 18 U.S.C. § 2113(a) provides: 

(a) Whoever, by force and violence, Or by 

intimidation, takes, or attempts to take, from 

the person or presence of another any prop- 

erty or money or any other thing of value 

belonging to, or in the care, custody, control, 

management, Or possession of, any bank, 

credit union, or any savings and loan associa- 

tion; 
* * * * % * 

v. PATTERSON 
1129 

1128 (1984) 

error was harmless and resulted in no prej- 

udice to Patterson. 

18 U.S.C. § 3006A(eX1) provides: 

Counsel for a person who is financially 

unable to obtain investigative, expert, or 

other services necessary for an adequate 

defense may request them in an ex parte 

application. Upon finding, after appro- 

priate inquiry in an ex parte proceeding, 

that the services are necessary and that 

the person is financially unable to obtain 

them, the court ... shall authorize coun- 

sel to obtain the services. 

Because Patterson’s indigence is not con- 

tested, we focus on the requirement in sec- 

tion 3006A(e) that such services be “neces- 

sary for an adequate defense.” 

In United States Vv. Theriault, 440 F.2d 

718, 715 (5th Cir.1971), cert. denied, 411 U.S. 

984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973), we 

stated that the “standards to govern what 

is ‘necessary to an adequate defense’ are 

not susceptible of arbitrary articulation but 

can best be developed on a case by case 

basis.” 2 The circumstances of Theriault, 

however, illustrate factors that are relevant 

in every case posing this issue. There, the 

defendant had been convicted of escaping 

from federal custody while a prisoner. The 

facts were not in dispute, and the defend- 

ant sought to pose a defense of insanity. 

When his request for appointment of a psy- 

  

18 U.S.C. § 2 provides: 

(a) Whoever commits an offense against 

the United States or aids, abets, counsels, 

commands, induces or procures its commis- 

  Las ory 

. In a concurrence, Judge Wisdom read the 

legislative history and policy basis of section 

 3006A(e) to compel the conclusion that “au- 

thorization for defense services [is required] 

Shall be fined not more than $5,000 or when the attorney makes a reasonable request 

e would _indepen- 

imprisoned not more than twenty years, or in circumstances in_whiC 

both. 
Section 2113(d) provides: 

~ (d) Whoever, in committing, or in attempt- F.2d at 717 (Wisdom, J., concurring). 

ing to commit, any offense defined in subsec- approach has been followed by several circuit 

Umited States v. 

  

tions (a) and (b) of this section, assaults any courts of See, e.g., 

person, or puts in jeopardy the life of any { = Durant, 545 F.2d 823, 827 (2d Cir.1976); Brink- 

person, or puts in jeopardy the life of any | joy v. United States, 498 F.2d 505, 510 (8th 

: 
Cir.1974), United States v. Bass, 477 F.2d 723, 

Sede I > find 0 725 (9th Cir.1973), see also Jacobs v. United 
y States, 350 F.2d 571, 573 (4th Cir.1965). 

person by the use of a dangerous weapon or 

years, or both. 

  
  

  

dently engage such services if his client had the 

financial means to support his efenses.” . 440 
This 

      

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b
a
i
t
 

i
e
 

D
e
 

 



  

  

          

1130 

chiatric expert was denied, he relied on the 
testimony of family members, fellow prison 
inmates easily subject to impeachment, and 
the prison chaplain, whose testimony was 
not favorable to the defense. The govern- 
ment offered the testimony of the prison 
psychiatrist, who opined that the defendant 

was competent to stand trial and suffered 
only from “dissocial behavior.” The de- 
fendant was convicted. We noted in rev- 
ersing the conviction that we were in the 
“unusual position” of having before us the 
entire trial record, which clearly demon- 
strated the defendant’s need for his own 
expert. 440 F.2d at 715-16. 

[1] We read Theriault to stand for th 

proposition that where the government's 

case rests heavily on a theory most compe- 

tently addressed by expert testimony, an 
indigent defendant must be afforded the 

opportunity to prepare and present his de- 

fense to such a theory with the assistance 

of his own expert pursuant..to section 

  
  

Bradford v. United States, 413 F.2d 467 (5th 

Cir.1969), in which we established that 
where the government's case is heavily de- 
pendent on evidence with regard to which a 

government expert testifies and the defend- 

ant has been denied the appointment of an 
expert, such evidence is sufficiently crucial 
to the government's theory that denial of a 
defense expert constitutes reversible error. 

In Bradford, the defendant was convicted 

of stealing postal money orders. He re- 

quested and was denied appointment of fin- 

gerprint and handwriting experts. At trial, 
the government offered the testimony of a 
fingerprint expert and a handwriting ex- 
pert. The only other evidence linking the 

defendant with the crime was the testimo- 
ny of a codefendant, who had pleaded 

guilty. In these circumstances, we reversed 

the conviction, holding that “[t]he govern- 

ment’s case against [the defendant] depend- 
ed almost entirely upon the testimony of 

the two experts. It was therefore neces- 
sary, if [the defendant] was to combat this 

evidence, that he have the assistance of 

other handwriting and fingerprint experts.” 
413 F.2d at 474. 

724 FEDERAL REPORTER, 2d SERIES 

Other circuits have used a similar ap- 
proach. In Unjted States v. Durant, 545 
F.2d 823 (2d Cir.1976), the court reversed a 

conviction for the district court’s refusal to 

appoint a fingerprint expert. The govern- 
ment’s case other than fingerprint evidence 
consisted of the testimony of two accom- 
plices, who presumably were easily 

impeachable. In finding that the defend- 

ant should have been permitted the services 

of an expert, the court stated that the 
policy underlying section 3006A(e), which is 

to equalize the imbalance between the 

government and an indigent defendant, re- 

quired that “the phrase ‘necessary to an 

adequate defense’ must be construed with 
this commendable purpose in mind. ‘Neces- 

sary’ should at least mean ‘reasonably nec- 
essary, and ‘an adequate defense’ must in- 

clude preparation for cross-examination of 

a government expert as well as presenta- 

tion of an expert defense witness.” 545 

F.2d at 827. See also United States v. Bass, 

477 F.2d 723 (9th Cir.1973). 

In the case before us, the government 

contends that Bradford and Durant (and, 

presumably, Theriault) are distinguishable 
because in both of them, unlike here, the 

evidence with regard to which the defend- 

ant sought the appointment of an expert 

was “pivotal” to the government's case. 

The government argues that there was suf- 

ficient evidence aside from the fingerprint 

testimony upon which the jury could have 

found Patterson guilty beyond a reasonable 

doubt. 

[2] We do not accept the government's 

position. A review of the trial transcript 

reveals that the fingerprint evidence ad- 
duced at trial may well have been pivotal to 
the government's case. The testimony of 
the two eyewitnesses, Buckley and Marble, 
was inconsistent and not entirely conclu- 

sive. Marble testified that the male robber 
weighed 195-210 pounds, had a dark com- 

plexion, and wore a mustache. See Record 

Vol. II at 36, 50. Buckley estimated the 

male’s weight to be approximately 230, and 

testified that he had a light complexion and 

no facial hair. See Record Vol. Il.at 10, 31. 

Buckley testified that the female robber 

  

    
 



ed a similar ap- 

v. Durant, 545 

court reversed a 
court’s refusal to 

prt. The govern- 
perprint evidence 

y of two accom- 
were easily 

hat the defend- 

itted the services 

stated that the 

006A(e), which is 

e between the 

t defendant, re- 

necessary to an 

b construed with 

n mind. ‘Neces- 

‘reasonably nec- 
efense’ must in- 

l-examination of 

ell as presenta- 

witness.” 545 

d States v. Bass, 

he government 

d Durant (and, 
distinguishable 

nlike here, the 

ich the defend- 

t of an expert 
ernment’s case. 

there was suf- 

the fingerprint 
ury could have 

nd a reasonable 

e government's 

trial transcript 
t evidence ad- 

been pivotal to 

e testimony of 
ey and Marble, 

ntirely conclu- 

he male robber 

d a dark com- 

e. See Record 

estimated the 

ately 230, and 

omplexion and 

ol. IT at 10, 31. 

female robber 

    

ALLEN v. ATLANTIC RICHFIELD CO. 1131 
Cite as 724 F.2d 1131 (1984) 

wore a solid pink scarf and blue jeans. 

Record Vol. IT at 21. Marble described the 

female robber as wearing a red and blue 
checked scarf and dress slacks. Record Vol. 
IT at 49. Both witnesses testified that they 
had only Brief opportunities to observe the 

robbers-beratise the-mate-tat-ordered them 

  

  ~mot—t5-Took at them. Record Vol. II at 
28-29, 53. As the defendant points out, 
although both witnesses identified Patter- 
son in court, he was the only black male 
present in the room when they did so. 

Three of the government's four remain- 

ing witnesses testified with regard to fin- 

gerprint evidence The first identified a 
latent palm print as one he lifted from the 
bank’s deposit counter on the night of the 
robbery. The second, an FBI agent, identi- 

fied a set of fingerprints taken from Pat- 

terson. The third, a fingerprint expert, tes- 
tified that the latent palm print taken from 
the deposit counter matched Patterson’s 

palm print. During direct examination of 

the fingerprint expert, the jury was shown 
enlargements of the latent palm print and 
Patterson’s palm print with points of mutu- 
al identity charted. The expert charted 

eight such points of identity. 

Although the government asserts that 

there is no evidence showing either that the 

latent print was blurred or that the expert's 
analysis was flawed, we think it clear that 
the absence of such evidence may merely 

have been the result of Patterson's inability 
to explore the area of fingerprints without 

the help of his own expert. It is entirely 

possible that another expert might have 

reached a different result it-comparing the 
latent print and Patterson’s print. More- 
over, the assistance of an expert undoubted- 
ly would have facilitated Patterson’s cross- 
examination of the government's expert. 
As in Theriault and Bradford, supra, we 
think it is clear that the lack of an expert 
hampered P at TEFSOT Sabi To prepare and 
present an adequate defense. We are un- 
willing to say that such a handicap was not 

prejudicial. Thus, we hold that the district 

3. The government's other witness testified only 
as to the total amount of money taken during 

court erred in denying Patterson’s request 
for appointment of a fingerprint expert. 

Our disposition of this issue renders con- 

sideration of Patterson’s other contentions 

unnecessary. 

REVERSED and REMANDED. 

W 
o £ KEY NUMBER SYSTEM 

T 

John A. ALLEN, et al, 

Plaintiffs-Appellants 

V. 

ATLANTIC RICHFIELD CO. et al, 

Defendants-Appellees. 

No. 82-2407. 

United States Court of Appeals, 
Fifth Circuit. 

Feb. 13, 1984. 

Security guards brought action against 

employer to recover overtime pay. The 

United States District Court for the South- 

ern District of Texas, Ross N. Sterling, J., 

entered judgment on jury verdict finding 

that time spent off duty but within confines 
of employer's plant was noncompensable 
time under the Fair Labor Standards Act, 

and security guards appealed. The Court 
of Appeals, Jerre S. Williams, Circuit 
Judge, held that: (1) evidence, which indi- 

cated that security guards were called to 

duty during their off hours only a few 

times during the strike and that guards 

were free to sleep, eat at no expense, watch 

movies, play pool or cards, exercise, read or 

listen to music during their off-duty time, 

was sufficient to raise fact question as to 

whether all the guards’ free time, including 
sleeping and eating time, was spent pre- 

dominantly for employer’s benefit, preclud- 

the robbery. See Record Vol. II at 64-66.  



          

    
    

314 

the district court's grant of the plaintiffs’ 
motion for summary judgment and remand 

the cause to the district court for further 

proceedings consistent with this opinion. 

© ¢ KEY NUMBER SYSTEM 

UNITED STATES of America, 

Plaintiff-Appellee, 

VY. 

Terrance Karl ALDEN and Leslie 

Phillips, Defendants-Appellants. 

Nos. 83-2275, 83-2350. 

United States Court of Appeals, 

Seventh Circuit. 

Argued April 11, 1984. 

Decided Aug. 21, 1984. 

Two defendants were found guilty, af- 

ter trial in the United States District Court 

for the Southern District of Illinois, Benton 

Division, James L. Foreman, Chief Judge, 

tentiary. On consolidated appeal, the 

Court of Appeals, Flaum, Circuit Judge, 

held that: (1) trial court properly appointed 

psychiatrist to determine need of each de- 

fendant for psychiatric assistance, properly 

considered conclusions of those experts in 

ruling on the requests for such assistance, 

and properly conducted ex parte hearings 

on the motions; (2) statements of one de- 

fendant concerning his emotional stress 

fell short of establishing plausible insanity 

defense, and District Court was justified in 

discounting self-serving statements of oth- 

er defendant that he was God and had been 

compelled to try to escape from prison; and 

(38) District Court could reasonably find 

that evidence of insanity was insufficient to 

warrant an insanity instruction for either 

defendant. 

Affirmed. 

of attempting to escape from federal peni- A 

767 FEDERAL REPORTER, 2d SERIES 

1. Costs 302.4 

Psychiatric assistance necessary to 

preparation of insanity defense is within 

purview of statute, 18 U.S.C.A. § 3006A(e), 

authorizing counsel for defense to request 

investigative, expert or other services nec- 

essary for adequate defense and authoriz- 

ing court or magistrate, if services are 

required in connection with matter over 

which he has jurisdiction, to authorize 

golysel to obtain the services. 

Costs ¢=302.4 : 

Statute, 18 U.S.C.A. § 3006A(e), gener- 

ally requires judge to authorize defense 

services when defense attorney makes 

timely request in circumstances in which 

reasonable attorney would engage such 

services for client having independent fi- 

nancial means to pay for them, but such 

generally appropriate standard was not to 

be applied too literally to request for psy- 

chiatric assistance for defendants caught in 

act of trying to escape, where their only 

conceivable defense thus was one based on 

claim of insanity or some other condition 

indicating lack of intent; in such a case it is 

appropriate for district court to satisfy it- 

self that defendant may have plausible de- 

fense before granting such motion for psy- 

chiatric assistance to aid in that defense. 

U.S.C.A. § 751(a). 
1 

[Costs €=302.4 

To require government to pay for psy- 

chiatric services just because reasonable 

private attorney would do so in hope of 

establishing insanity defense, however slim 

that hope might be, might be to require 

government to subsidize “fishing expedi- 

tion,” which is not purpose of 18 U.S.C.A. 

§ 3006A(e), authorizing court to authorize 

counsel to obtain investigative, expert or 

other services necessary for adequate de- 

fense, but court nevertheless should not 

withhold authority when underlying facts 

reasonably suggest that further explora- 

tion might prove beneficial to accused in 

development of defense to the charge. 

4. Costs &302.2(2), 302.3 

Decision to grant or deny motion under 

statute, 18 U.S.C.A. § 3006A(e), authoriz-    



necessary to 

Lfense is within 

C.A. § 3006A(e), 

fense to request 

her services nec- 

se and authoriz- 

if services are 

ith matter over 

hn, to authorize 

ices. 

b 3006A(e), gener- 

Luthorize defense 

attorney makes 

\stances in which 

uld engage such 

g independent fi- 

br them, but such 

bndard was not to 

o request for psy- 

fendants caught in 

_ where their only 

. was one based on 

ne other condition 

in such a case it is 

court to satisfy it- 

* have plausible de- 

uch motion for psy- 

lid in that defense. 

ent to pay for psy- 

because reasonable 

gd do so in hope of 

Lfense, however slim 

might be to require 

ize “fishing expedi- 

rpose of 18 U.S.CA. 

g court to authorize 

estigative, expert or 

ary for adequate de- 

ertheless should not 

hen underlying facts 

hat further explora- 

oficial to accused in 

ise to the charge. 

302.3 

or deny motion under 

§ 3006A(e), authoriz- 

  

UNITED STATES v. ALDEN 315 

Cite as 767 F.2d 314 (1984) 

ing court to authorize counsel to obtain 

investigative, expert or other services nec- 

essary for adequate defense of a defendant 

financially unable to obtain them is decision 

committed to discretion of district court, 

whose decision will be disturbed on appeal 

only for abuse of discretion. 

5. Costs &302.4 

Under statute, 18 US.C.A. § 3006A(e), 

authorizing district court to authorize coun- 

sel to furnish investigative, expert or other 

services necessary for adequate defense of 

person financially unable to obtain them, 

trial court properly appointed psychiatrist 

to determine need of defendants for psychi- 

atric assistance and properly considered 

conclusions of those experts in ruling on 

the requests for such assistance, and dis- 

trict court also properly conducted ex parte 

hearings on the defendants’ motions. 

6. Criminal Law ¢&=1158(2) 

Because district court in ruling upon 

motion under statute, 18 USCA. 

§ 3006A(e), authorizing district court to au- 

thorize counsel to obtain investigative, ex- 

pert or other services necessary for ade- 

quate defense of person not financially able 

to obtain them was in position to observe 

defendants personally as they presented 

their claims at ex parte hearings on their 

motions, Court of Appeals on review would 

give great weight to district court’s state- 

ment that impression received by the court 

from those hearings was the most impor- 

tant factor in its decision to deny the mo- 

tions. 

7. Costs 302.4 

On defense motion under statute, 18 

US.C.A. § 3006A(e), authorizing district 

court to authorize defense counsel to ob- 

tain investigative, expert or other services 

necessary for adequate defense of person 

financially unable to obtain statements of 

one defendant concerning his emotional 

stress, even if sincere, fell short of estab- 

lishing plausible insanity defense, and dis- 

trict court was justified in discounting self- 

serving statements of other defendant that 

he was God and had been compelled to try 

to escape from prison, and, on record, dis- 

trict court gave adequate consideration to 

the requests and was not shown to have 

erred in refusing them. 18 U.S.C.A. 

§ 751(a). 

8. Criminal Law &=48 

Persons are not responsible for crimi- 

nal conduct by reason of insanity if at time 

of such conduct as result of mental disease 

or defect they lack substantial capacity el- 

ther to appreciate wrongfulness of their 

conduet or to conform their conduct to re- 

quirements of the law. 

9. Costs ¢=302.4 

On motion under statute, 18 U.S.C.A. 

§ 3006A(e), authorizing request for the fur- 

nishing of investigative, expert or other 

services necessary for adequate defense of 

person financially unable to obtain them, a 

proper factor for court to consider is 

whether defendant had any significant per- 

sonal or family history of mental or psycho- 

logical illness. 

10. Criminal Law &773(1) 

Defendant is entitled to insanity in- 

struction only if he or she first introduces 

some evidence of insanity sufficient to war- 

rant placing burden on prosecution to 

prove that defendant was sane at time of 

crime charged, and whether evidence 1s 

sufficient to warrant instruction of ques- 

tion for the trial court. 

11. Criminal Law &773(1) 

Trial judge should give requested jury 

instruction on insanity as defense only if 

credible evidence in record would support 

verdict based on that instruction, and thus 

where there is no cause to question district 

court’s finding that defense testimony on 

which insanity defense is based is not credi- 

ble, request for insanity instruction is prop- 

erly denied. 

12. Criminal Law &=773(1) : 

Defendant's testimony tending to show 

only that he was emotionally distressed at 

the time of his escape attempt did not 

require giving of insanity instruction, and 

trial court properly refused to instruct jury 

on issue of defendant's sanity, particularly 

where district court did instruct jury on   

            

   



        
    

    

  
  

  

316 

possibility that mental condition might 

have prevented defendant from forming in- 

tent to escape as required for conviction. 

18 U.S.C.A. § 751(a). 

Ralph Friedericks, Asst. U.S. Atty. (Fred- 
erick J. Hess, U.S. Atty.), East St. Louis, 

I1l., for plaintiff-appellee. 

Giles Franklin, Chicago, Ill, R. Thomas 

Day, Asst. Federal Public Defender, St. 

Louis, Mo., for defendants-appellants. 

Before POSNER and FLAUM, Circuit 

Judges, and NICHOLS, Senior Circuit 

Judge.” 

FLAUM, Circuit Judge. 

This is a consolidated appeal following a 

jury trial in which the defendants were 

found guilty of attempting to escape from 

a federal penitentiary. The defendants 

claim that they were improperly denied the 

psychiatric assistance that they needed to 

prepare insanity defenses, and that the tri- 

al court erred in refusing to instruct the 

jury on their insanity defenses. We dis- 

agree, and we affirm the defendants’ con- 
victions. 

I 

Defendants Alden and Phillips were in- 

mates at the United States Penitentiary at 

Marion, Illinois. At approximately 9:30 

p.m. on January 13, 1982, they were ap- 

prehended lying on the ground near the 

fence that surrounds the penitentiary. 

There was a hole in the fence, and near the 

hole prison guards found two makeshift 

hacksaws, some gloves, and a t-shirt. The 

defendants were dressed in white, appar- 

ently to camouflage themselves against the 

more than six inches of snow that was on 

the ground. An investigation later re- 

vealed that several windows in the defend- 

ants’ housing unit had been cut, and that 

clothing had been stuffed in the defendant 

* The Honorable Philip Nichols, Jr., Senior Circuit 
Judge for the United States Court of Appeals for 
the Federal Circpit, is sitting by designation. 

767 FEDERAL REPORTER, 2d SERIES 

Alden’s bed to create the appearance that 
he was lying there. 

On November 18, 1982, the defendants 

were indicted in federal district court and 
charged with attempting to escape from 

the Marion penitentiary in violation of 18 
U.S.C. § 751(a) (1982). Shortly thereafter, 

each defendant gave notice that he intend- 

ed to defend against this charge by claim- 

ing that he was insane at the time of the 

escape attempt. On December 15, 1982, 
each defendant requested the court to per- 

mit him to obtain an expert psychiatric 

witness to assist in his defense, as is per- 

mitted by 18 U.S.C. § 3006A(e) (1982). 

Two weeks later, the court and the parties 

agreed that each defendant would undergo 

a psychiatric examination at the federal 

penitentiary in Marion by qualified psychia- 

trists from the United States Medical Cen- 

ter for Federal Prisoners in Springfield, 
Missouri. The purpose of these examina- 

tions was to determine whether the defend- 

ants were sane at the time of their escape 
attempt and whether they were competent 

to stand trial. The examinations were con- 

ducted in January 1983, and in each case 

the psychiatrist concluded that the defend- 

ant was both sane at the time of the escape 

attempt and competent to stand trial! 

The defendants then moved the court 

again for Leyes asians On March 
16, 1983,"the court held separate ex parte 
hearings for the defendants to determine 
their need for psychiatric assistance, as 

required by section 3006A(e). At his hear- 

ing, the defendant Alden testified that he 

wished to present a defense of temporary 

insanity. He stated that at the time of his 

escape attempt his marriage and family life 

were deteriorating and as a result he was 

“anxious” and “depressed,” and experienc- 

ing “mood swings.” Tr. at 388-89. He 

also stated that his only previous psycho- 

logical counseling was with a prison psy- 

chologist that he had “developed a friend- 

ship with” more than five years earlier at 
another prison. Tr. at 393. 

1. In Phillips's case, the psychiatrist did find that 
he had a possible cyclothymic disorder and 
might be an antisocial type.    



carance that 

e defendants 

ict court and 

escape from 

jolation of 18 

ly thereafter, 

hat he intend- 

Lrge by claim- 

he time of the 

ber 15, 1982, 

e court to per- 

ert psychiatric 

nse, as 1s per- 

hoeA(e) (1982). 

and the parties 

would undergo 

at the federal 

alified psychia- 

os Medical Cen- 

in Springfield, 

these examina- 

bther the defend- 

of their escape 

were competent 

ations were con- 

and in each case 

| that the defend- 

ime of the escape 

|, stand trial 

moved the court 

tance. On March 

separate ex parte 

ants 0 determine 

ric assistance, aS 

Ae). At his hear- 

5 testified that he 

Fense of temporary 

t at the time of his 

Hage and family life 

as a result he was 

Led,” and experienc 

Tr. at 388-89. He 

ly previous psycho- 

| with a prison Psy- 

“developed a friend- 

five years earlier at 

kL 393. 

psychiatrist did find that 

clothymic disorder and 

type. 

  

UNITED STATES v. ALDEN 
317 

Cite as 767 F.2d 314 (1984) 

At his hearing, the defendant Phillips 

testified that he believed he was God. He 

also stated that he was a self-taught hyp- 

notherapist, that he had been hospitalized 

for dizzy spells many years earlier while he 

was in the Marine Corps, and that two of 

his cousins were mentally retarded and a 

third had been hospitalized as criminally 

insane. He stated further that he had at- 

tempted to escape from prison because i | 

can’t help myself.” Tr. at 406. He also 

indicated that his only previous psychologi- 

cal counseling was a visit several years 

earlier to a prison psychologist at a prison 

in Atlanta for treatment of possible symp- 

toms of stress. He made only one visit to 

this psychologist because he was transfer 

red to Marion after an attempted escape 

from the Atlanta prison. 

After hearing the testimony at these ex 

parte hearings, the court below denied both 

defendants’ requests for psychiatric assist- 

ance. The court gave its reasons as fol- 

lows: 

The Court believes that a “reasonable 

showing of need” has not been demon- 

strated. First, the results of the psychi- 

atric examinations of Alden and Phillips 

_ ordered by this Court, conclude that 

each was sane at the time of the alleged 

offense, and is competent to stand trial. 

These results alone give the Court seri- 

ous reservations about ordering further 

psychiatric examination. Second, the 

Court believes that the assertion of the 

insanity defense to a charge typically 

involving long and detailed planning—es- 

cape from U.S.P. Marion—is immediately 

suspect. Third, and most importantly, 

the ex parte hearings of each defend- 

ant’s request, in the Court's view, yielded 

no indication that insanity defenses are 

warranted here. The evidence presented 

at the ex parte hearing makes it abun- 

dantly clear to the Court that the quali- 

fied privileges of Section 3006A would be 

abused if further examinations are Or- 

dered. 

Memorandum and Order, Crim. No. 82- 

40053 (S.D.IIL. April 4, 1983). 

At the defendants’ consolidated trial, 

they each attempted to establish a defense 

of insanity without any expert testimony. 

Alden had two of his fellow inmates testify 

on his behalf. Inmate Artie Dufur testi- 

fied that he had lived in the same housing 

unit as Alden from June 1980 until July 

1981 and that they had become close 

friends. Dufur described Alden’s demean- 

or during this period as “easygoing” and 

“cheerful,” and stated that he did not ap- 

pear to have any mental or emotional prob- 

lems at this time. Tr. at 217. Between 

July 1981 and January 1982, the time of the 

escape attempt, Dufur had some contact 

with Alden on eight to twelve occasions. 

He stated that during this time Alden often 

appeared to be withdrawn, anxious, and 

paranoid, and that his behavior was “errat- 

ic.” Tr. at 220-21. Inmate Garvin Dale 

White testified that he saw Alden shortly 

after Alden was captured attempting to 

escape, and that for several hours Alden 

was “ranting and raving and screaming” 

about his wife and family. Tr. at 230-32. 

White also testified that he saw Alden af- 

ter January 1982 on a few occasions and 

that he appeared “normal.” Tr. at 236. 

Alden himself testified about his mental 

state at the time of his escape attempt. He 

explained about his deteriorating family sit- 

uation, and about the guilt, anxiety, and 

depression that this had caused him. He 

stated that he had been “obsessed with 

getting out of that prison,” Tr. at 254, and 

that he could not control his conduct on the 

night of his escape attempt. He also stat- 

ed that he had read some psychology books 

and that he believed that he had suffered a 

nervous breakdown that night, or that he 

had been “on the edge” of a nervous break- 

down. Tr. at 257. 

The defendant Phillips also testified on 

his own behalf. He again stated that he 

was God, and that he was in human form 

“to suffer, ... to feel and to experience.” 

Tr. at 278. He also said that during the 

escape attempt he believed that he and 

Alden were invisible, that he could not pre- 

vent himself from trying to escape from 

prison, and that he was not insane. In 

addition, he testified as to many of the 

s
e
n
 
A
 

SS
 

 



      

    
  

  

    

318 

details of the escape plan and the attempt 

itself. Garvin Dale White also testified 

briefly on Phillips's behalf, stating that 

Phillips was known as God throughout the 

prison community, and that he had heard 

Phillips tell Alden on the night of their 

escape attempt that they were invisible. 

At the close of all the evidence, each of 

the defendants requested the trial court to 

instruct the jury that his insanity was in 

issue, and that therefore the burden was on 

the prosecution to prove beyond a reason- 

able doubt that he was sane at the time of 

the escape attempt. The trial court re- 

fused to give this instruction, holding that 

there was insufficient evidence of insanity 

to warrant placing the burden of proof on 

this issue on the prosecution. The court 

did, however, give the jury an instruction 

that allowed it to consider in each case 

whether the defendant’s mental state pre- 

vented him from forming the specific intent 

required to commit the crime of escape. 

The jury found the defendants guilty, and 

this appeal followed. 

IL 

[11 We turn first to the question of 

whether the district court erred in not al- 

lowing the defendants the psychiatric as- 

sistance that they requested. Section 

3006A(e) provides: 

Counsel for a person who is financially 

unable to obtain investigative, expert, or 

other services necessary for an adequate 

defense may request them in an ex parte 

application. Upon finding, after appro- 

priate inquiry in an ex parte proceeding, 

that the services are necessary and that 

the person is financially unable to obtain 

them, the court, or the United States 

magistrate if the services are required in 

connection with a matter over which he 

has jurisdiction, shall authorize counsel 

to obtain the services. 

It is clear that psychiatric assistance neces- 

sary to the preparation of an insanity de- 

fense is within the purview of this section. 

2. Although ultimately the defendants received 

an instruction referring not to insanity but to 

lack of specific intent to escape, there is no 

767 FEDERAL REPORTER, 2d SERIES 

United States v. Schappel, 445 F.2d T16, 

719 (D.C.Cir.1971). 

[2,3] A test commonly used to deter- 

mine whether psychiatric assistance is 

“necessary for an adequate defense” is the 

“private attorney” standard, which has 

been stated as follows: The statute re- 

quires the district judge to authorize de- 

fense services when the defense attorney 

makes a timely request in circumstances in 

which a Feasonable attorney would engage 

suck services for a client having the inde- 

pendent financial means to pay for them.” 

United States v. Bass, 477 F.2d 723, 725 

(9th Cir.1973). Accord Brinkley v. United 

States, 498 F.2d 505, 510 (8th Cir.1974); 

United States v. Theriault, 440 F.2d 713, 

717 (5th Cir.1971) (Wisdom, J., concurring), 

cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 

L.Ed.2d 960 (1973). Cf. United States v. 

Jonas, 540 F.2d 566, 569 n. 3 (7th Cir.1976) 

(applying the “private attorney’ standard 

to an indigent defendant's request for a 

trial transcript). While we find that this 

generally is an appropriate standard, it 

should not be apphed too literally in this 

case. Here, the defendants were caught in 

the act of trying to escape, and thus their 

only conceivable defense was one based on 

a claim of insanity or some other condition 

indicating a lack of intent? In a case such 

as this, if the defendant refuses to plead 

guilty, a reasonable private attorney might 

hire several psychiatrists to examine the 

defendant in the hope of establishing an 

insanity defense, however slim that hope 

might be. Thus, to require the government 

to pay for psychiatric services in this type 

of case just because a reasonable private 

attorney would do so might be to require 

the government to subsidize a “fishing ex- 

pedition,” which is not the purpose of sec 

tion 3006A(e). See United States v. Sailer, 

552 F.2d 218, 215 (8th Cir), cert. denied, 

431 U.S. 959, 97 S.Ct. 2687, 53 L.Ed.2d 278 

(1977). Accordingly, it is appropriate for 

the district court to satisfy itself that a 

defendant may have a plausible defense 

indication in the record that they made this 

distinction in their § 3006A(e) motion.  



45 F.2d 716, 

sed to deter 

1ssistance is 
-fense” is the 
y which has 

e statute re- 

authorize de- 

ense attorney 

umstances in 

ould engage 

ring the inde- 

ay for them.” 

F.2d 723, 725 

cley v. United 
8th Cir.1974); 

440 F.2d 718, 

., concurring), 

S.Ct. 2278, 36 

ited States v. 

(7th Cir.1976) 

wey” standard 
request for a 

find that this 

standard, it 

terally in this 

were caught in 

and thus their 

: one based on 

hther condition 

In a case such 
fuses to plead 

httorney might 

hb examine the 
stablishing an 

lim that hope 
e government 

es in this type 

bonable private 

be to require 
a “fishing ex- 

purpose of sec- 
tates v. Sailer, 

, cert. denied, 
53 L.Ed.2d 278 

Lppropriate for 

y itself that a 

i» 

usible defense 

| they made this 

motion. 

UNITED STATES v. ALDEN 
319 

Cite as 767 F.2d 314 (1984) 

pefore granting the defendant's section 

3 ¢) motion for psychiatric assistance 

to aid in that defense. See id. (“[wlhile a 

trial court need not authorize an expendi- 

ture under subdivision (e) for a mere ‘fish- 

ing expedition’, it should not withhold its 

guthority when underlying facts reason 

ably suggest that further exploration may 

prove beneficial to the accused in the devel- 

opment of defense to the charge’); Unit 

ed States V. Hamlet, 480 F.2d 556, 557 (5th 

oe 3 Trequest for psychiatric assistance 

must be «meritorious and made in good 

faith”), cert. denied, 414 U.S. 1026, 94 S.Ct. 

452, 38 L.Ed.2d 317 (1973). 

  

  
  

  

  

(4-61 The decision to grant or deny a 

motion under section 3006A(e) is one com- 

mitted to the discretion of the district 

court, and a district court's decision will be 

disturbed on appeal only if it constitutes an 

gbuse of discretion. See United States v. 

Lawson, 653 F.2d 299, 304 (7th Cir.1981); 

United States 0. Valtierra, 467 F.2d 125, 

126 (9th Cir.1972). We find no abuse of 

discretion in the district court's refusal to 

grant the defendants’ motions under sec- 

tion 3006A(e). The court properly appoint 

ed psychiatrists to determine the need of 

the defendants for psychiatric assistance at 

trial, and it was entirely appropriate for the 

court to consider the conclusions of those 

experts in ruling on the defendants’ re- 

quests. See United States v. Lawson, 653 

F.2d at 304; United States v. Lincoln, 542 

F.2d 746, 749 (8th Cir.), cert. denied, 429 

US. 1106, 97 S.Ct. 1138, 51 L.Ed.2d 558 

(1976); United States v. Hamlet, 480 F.2d 

3. Our conclusion would be different if the first 

examination had been ordered only to deter- 

mine the defendants’ competency to stand trial. 

See generally United States v. Reason, 549 F.2d 

300, 311 (4th Cir.1977). 

4. In this circuit, persons are not responsible for 

criminal conduct by reason of insanity if at the 

time of such conduct as 2 result of mental 

disease or defect they lack substantial capacity 

either to appreciate the wrongfulness of their 

conduct or to conform their conduct to the 

requirements of the law. United States v. Shapi- 

ro, 383 F.2d 680, 683-87 (7th Cir.1967) (en 

banc). 

556, 557 (5th Cir.1973).2 The district court 

also properly conducted ex parte hearings 

on the defendants’ motions, and the court 

explicitly stated that the impression that it 

received from those hearings was the most 

important factor in its decision. Because 

the district court was in a position to ob- 

serve the defendants personally as they 

presented their claims, we accord this 

statement great weight in our review of 

the district court’s decision. 

[7-91 In addition, we have reviewed 

carefully the transcript of the ex parte 

hearings, and we find nothing that gives us 

cause to question the district court's ruling. 

In Alden’s case, his statements concerning 

his emotional stress may have been sincere, 

but they fall short of establishing a plau- 

sible insanity defense! Phillips’s testimo- 

ny was more bizarre, but in view of his 

record of previous escape attempts, the 

fact that he had no history of mental ill- 

ness} and the finding of sanity by the 

court-appointed psychiatrist, the district 

court was justified in discounting Phillips's 

self-serving statements that he was God 

and that he was compelled to try to escape 

from prison. In short, we find that the 

district court gave adequate consideration 

to the defendants’ requests for psychiatric 

assistance, and we find no error in its re- 

fusal of those requests. 

IIL 

[10] We now turn to the defendants’ 

claim that the district court erred in not 

5. Neither defendant had any significant person- 

al or family history of mental or psychological 

illness, which is a proper factor to consider on a 

§ 3006A(e) motion for psychiatric assistance. 

See, e.g., United States V. Bass, 477 F.2d at 725. 

6. The district court stated its belief that the 

considerable detailed planning and forethought 

that preceded the defendants’ escape attempt 

belied their claims of insanity. Without the 

benefit of expert testimony, We have no way of 

knowing whether this belief was well-founded. 

However, we find that the district court's other 

stated reasons for its decision adequately sup- 

port that decision.