Georgia v. Ross Brief for Appellant in Forma Pauperis

    IN THE SUPREME COURT OF GEORGIA

NO. 31792

STATE OF GEORGIA
-vs-

WILLIE X.ROSS,
Defendant-Appellant

BRIEF FOR APPELLANT 
IN FORMA PAUPERIS

JOHN R. MYER 
ROBERT H. STROUP 
2415 National Bank of Georgi Building
Atlanta, Georgia 30303
SAM J. GARDNER, JR.
Post Office Box 68 
Valdosta, Georgia
JACK GREENBERG 
DAVID E. KENDALL 
10 Columbus Circle New York, New York 10019
ANTHONY G. AMSTERDAMStanford Law School
Palo Alto, California 94305
ATTORNEYS FOR APPELLANT



IN THE SUPREME COURT OF GEORGIA

XSTATE OF GEORGIA XX-vs- X NO. 31792XWILLIE X. ROSS, XXDefendant-Appellant. XX_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ X

BRIEF FOR APPELLANT 

PART ONE

STATEMENT OF FACTS

Defendant WILLIE X. ROSS was convicted on March 13, 1974 
in the Superior Court of Colquitt County of the following three 
offenses: murder of T. J. Meredith, armed robbery of Robert Lee
and Kidnapping of Wandell Normal. By a final judgment entered 
on the same date, he was sentenced to death, life imprisonment, 
and twenty years imprisonment, respectively, upon these three 
convictions.

On November 18, 1974, this Court affirmed defendant's 
convictions and sentences, and on December 17, 1974, this Court 
denied the rehearing petition. Ross v. State, 233 Ga. 361, 211 
S. E. ed 356 (1974). On March 17, 1975, defendant filed a 
petition for writ of certiorari in the Supreme Court of the 
United States, Ross v. Georgia, No. 74-6207. On July 6, 1976, 
that Court denied certiorari. Ross v. Georgia, 49 L. Ed. 2nd 
1217 (1976) and on October 4, 1976, that court denied a re­
hearing petition (45 U.S.L.W. 3255) which petition defendant had 
filed on July 20, 1976.

On October 8, 1976, this Court issued remittitur in this 
case to the Superior Court of Colquitt County, and on October 
25, 1976, that Court set November 12, 1976 as the date for



defendant's execution.

On October 14, 1976, defendant filed in the Superior Court 
of Colquitt County a"Petition for a Declaratory Judgment and 
Motion for a New Presentence Hearing" (R. 5). In that petition, 
defendant asserted that his "death sentence was imposed on March 
13, 1974, at a time when the constitutionality of the 1973 
death penalty statute was in question, and the jury which 
sentenced petitioner to death may have been influenced by its not 
unreasonable belief at that time, that this sentence could not 
in fact be "constitutionally executed" (R. 6). In that motion, 
defendant prayed that the Superior Court "afford defendant a 
presentence hearing, as authorized by Ga. Code Ann. §§27-2503 (b) , 
27-2534.1 (1975 Supp.), at which either the court polls the 
original penalty jury on the issue of sentence in light of the 
supervening legal developments or at which the question of 
defendant's sentence may be redetermined by defendant's original 
jury, a new jury, or the Court, in light of the fact that the 
Supreme Court of Georgia and the Supreme Court of the United 
States have upheld the constitutionality of the Georgia death 
penalty statute" (R. 6). On the same date, defendant also filed 
a Motion for Hearing on his petition "to assure that the setting 
of such execution date would be conformable to equitable and 
constitutional requirements" (R. 3).

By order of the Superior Court of Colquitt County entered 
October 18, 1976, defendant's Motions were denied, including 
defendant's motion for a hearing (R. 8-9). The trial court 
stated in denying both the petition and the hearing, that "The 
Georgia Death Penalty Act, Ga. Laws 1973, pp. 159-172, was held 
to be constitutional and valid prior to the date (March 13,
1974) upon which the jury in this case imposed the death penalty 
in the case of Coley v. State, 231 Ga. 829" (R. 8). On October 
21, 1976, defendant filed a Notice of Appeal from the order of 
October 18, 1976 (R. 1). This appeal to this Court follows.

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PART TWO
ENUMERATION OF ERRORS

1. The trial court erred in denying defendant's Petition 
for a Declaratory Judgment and Motion for a New Presentence 
Hearing in violation of defendant's rights to due process 
guaranteed by the Due Process Clause of the Fourteenth Amendment 
United States Constitution, and the Constitution of the State of 
Georgia.

2. The trial court erred in denying defendant's motion for 
hearing on his Petition for a Declaratory Judgment and Motion 
for a New Presentence Hearing in violation of defendant's rights 
to due process guaranteed by the Due Process Clause of the 
Fourteenth Amendment, United States Constitution and the Consti­
tution of the State of Georgia.

PART THREE 

ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S 
MOTION TO CONSIDER WHETHER THE LEGAL UN­
CERTAINTY OF THE GEORGIA DEATH PENALTY STATUTE IMPROPERLY INFLUENCED THE SENTENCE OF DEATH

The issue presented in this appeal is whether the trial 
court erred in denying defendant's motion for hearing on the 
question whether the jury which originally imposed the sentence 
of death firmly believed that such sentence would in fact be 
carried out. Only the sentencing phase of his case is at issue 
in this appeal.

In Gregg v. Georgia, ____ U. S. ____, 96 S. Ct. 2909
(1976), the United States Supreme Court held that the Georgia 
capital punishment statute, Ga. Code Ann. §27-2534.1, on its 
face for the crime of murder, did not violate cruel and unusual 
punishment prohibition of the Eighth Amendment, United States 
Constitution. However, in upholding the Georgia statute, the

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United States Supreme Court also recognized the unique consti-
1/tutional role of the sentencing jury in capital cases. Mr. 

Justice Stewart's opinion states, "Jury sentencing has been 
considered desirable in capital cases in order to 'maintain a 
link between contemporary community values and the penal system - 
a link without which the determination of punishment could hard­
ly reflect 'the evolving standards of decency that mark the 
progress of a maturing society.'" But it creates special 
problems." 98 S. Ct. at 2933 (Emphasis added).

One important element of the "special problems" of 
jury sentencing in capital cases is the total lack of experience 
of such juries to perform the awesome responsibility which the 
Georgia legislature has given to them. Mr. Justice Stewart's 
opinion in Gregg explicitly recognized this lack of experience: 
"Since the members of a jury will have had little, if any, 
previous experience in sentencing, they are unlikely to be 
skilled in dealing with the information they are given" 96 S.Ct. 
at 2934.

Mr. Justice Stewart's opinion concluded that the
2/

Georgia statute passed Furman v. Georgia muster because "the 
concerns expressed in Furman that the penalty of death not be 
imposed in an arbitrary or capricious manner can be met by a

T7Historically, at common law, the jury acted solely as the findex 
of fact and the sentencing function was performed by the judge 
in all cases. The same rule prevails in most American juris­
dictions for non-capital sentencing. However, states which 
retain the death penalty have generally provided for jury sen­
tencing in capital cases. See H. Kalver & H. Zeisel, The American Jury, 301 n. 1 (1966),Comment, Jury Sentencing m  
Virginia, 53 Va. L. Rev. 968 (1967).

408 U. S. 238 (1972).2/

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carefully drafted statute that ensures that the sentencing 
authority is given adequate information and guidance." 96 S. Ct.
2935 (Emphasis added).

The constitutional uniqueness of the death penalty was 
similarly recognized by the Court in Woodson v. North Carolina,

U. S. ___, 96 S. Ct. 2978 (1976), where Mr. Justice Stewart's
opinion stated, "This conclusion rests squarely on the predicate 
that the penalty of death is qualitatively different from a 
sentence of imprisonment, however long. Death, in its finality, 
differs more from life imprisonment than a 100 year prison term 
differs from one of only a year or two. Because of that 
qualitative difference, there is a corresponding difference in 
the need for reliability in the determination that death is the 
appropriate punishment in a specific case" 96 S. Ct. at 2992 
(Emphasis added). See also, Mario v. Beto, 434 F. 2d 29, 33 
(5th Cir. 1970) ("the magnitude of a decision to take a human 
life is probably unparalled in the experience of a member of a 
civilized society").

The Gregg and related decisions place a heavy emphasis 
on the fact that because the jury is the link with the standards 
of society, the sentencing jury must be given adequate informa­
tion and guidance to minimize the special problems which 
capital sentencing poses. In light of the constitutional re­
quirement of certainty and reliability, defendant was entitled 
to be heard on his motion to determine whether the sentence im­
posed on him by this jury was so chosen by a jury which believed 
the sentence would not in fact be carried out. Defendant sub­
mits that the.uncertainty surrounding the constitutionality of 
the Georgia statute at the time of his sentence prevented the 
jury from possessing the full guidance of certainty required.

There can be no dispute that following the decisions

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of the United States Supreme Court in Furman v. Georgia, et al., 
substantial widespread uncertainty existed as to whether any 
death sentence would be permissible, and if so, what types of 
sentencing schemes. When the State of Georgia adopted 
§27-2534.1, this uncertainty existed among lawyers, judges and 
commentators. Indeed, several commentators had expressed the 
opinion, see, e^ g_̂ , Note. Furman v. Georgia and Georgia's 
Statutory Response, 24 MERCER L. REV. 891, 936 (1973); Note, 
Discretion and the Constitutionality of the New Death Penalty 
Statutes, 87 HARV. L. REV. 1690, 1704 (1974), that the new Geor­
gia capital punishment statute was invalid under the Furman 3/ ------
test. In this state of affairs, it is likely that defendant's 
jury condemned him without believing that his sentence would 
actually be executed.

4/There is evidence from other states that in the period 
before the Supreme Court of the United States upheld the per se 
constitutionality of the death penalty on July 2, 1976, some 
juries imposed the death penalty while firmly believing that the 
sentence would never be executed. This so-called "Private 
Slovik" syndrome was noted by Mr. Justice Stewart during the 
argument of a recent death case (Fowler v. North Carolina) in the 
United States Supreme Court:

3 ^ —  -----------------------

Similar uncertainty prevailed concerning the constitutionality 
??.death Penalty statutes in other states. Cf., Comment, The New Illinois Death Penalty: Double Constitutional Trouble, 5 Loyola Univ. (Chi.) lT 351 (1974) which stated:

"Since the Furman decision was shrouded 
with such undertainty, some legislative grouping for the constitutional answers -is to be expected. Hopefully, much of 
the haze surrounding the issue of capital 
punishment in the United States will'be removed when the United States Supreme 
Court grapples with post-Furman death 
penalty statutes" at 392.

1/See, e. g., Leavy, Mamie Lee Ward on Death Row. 5 M.S. 70. 106 (19 75) ------------------------

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Mr. Justice Stewart said that failures 
[of responsibility] were nonetheless 
possible. . .and he referred to the 
case of the sole U. S. soldier executed 
for desertion in World War II. Everyone 
who could have stopped that prosecution, he said, failed to do so.
43 U.S. L. W. 3578 (U. S. April 29, 1975).

This "Slovik syndrome" takes its name from the following
account of the execution of the only American soldier executed
during World War II by the United States. Compare, HUIE, THE
EXECUTION OF PRIVATE SLOVIK 169 (5th Dell ed. 1974):

"I think every member of the court thought 
that Slovik deserved to be shot; and we 
were convinced that, for the good of the division, he ought to be shot. But in 
honesty —  and so that people who didn't 
have to go to war can understand this thing —  this must be said: I don't think a
single member of that court actually be­
lieved that Slovik would ever be shot. I know I didn't believe it. . . . 1 had no 
reason to believe it. . . .1 knew what the 
practice had been. I thought that the 
sentence would be cut down, probably not 
by General Cota, but certainly by Theater 
Command. I don't say that this is what I 
thought should happen; I say it is what I felt would happen. I thought that not 
long after the war ended —  two or three 
years maybe —  Slovik would be a free man."

Under these circumstances, inquiry should now be had 
into the question whether the death penalty was properly imposed 
upon the defendant. The existence of such legal uncertainty 
amounts to a usurpation of the jury function - the responsi­
bility to impose the sentence of death upon a defendant only if 
the jury truly knows that such sentence will be carried out. As 
the Court states in the original appeal from this defendant's 
conviction, "It is the reaction of the sentencer to the evidence 
before it which concerns this Court and which defines the limits 
which sentences in past cases have tolerated, whether before or 
after Furman v. Georgia. When a reaction is substantially out 
of line with reaction of prior sentences, then this Court must 
set aside the death penalty as excessive." Ross v. State, 233

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361, 211 S. E. ed 356, at 360. The true "reaction of the 
sentencer" insofar as it serves the link with the community can 
be assayed only from a jury acting with firm knowledge that its 
sentence is capable of execution.

In an analogous context, this Court ruled that comments 
of the district attorney to the jury that this Court had power 
to reverse and set aside death sentences constituted reversible 
error as to the sentence. Prevatte v. State, 233 Ga. 929, 214 
S. E. 2d 365 (1975). In Prevatte, this Court stated. ". . .the 
inevitable effect of the prosecutor's remarks to the judge in 
the jury's presence was to encourage the jury to attach diminish­
ed consequence to their verdict, and to take less than full 
responsibility for their awesome task of determining life or 
death for the prisoners before them" 214 S. E. 2d at 367 (Empha­
sis added). The legal uncertainty of the constitutionality of 
the Georgia death penalty statute may have had the inevitable 
effect of encouraging the jury to attach diminished consequence 
to their sentence of defendant and encouraging them to take less 
than full responsibility for the awesome decision of condemning 
Willie Ross to die.

Similarly, the lack of certainty about the statute's 
constitutionality may have influenced the decision to impose the 
sentence as the jury weighed the imponderables of whether to give 
defendant life or death. Compare Prevatte, supra, at 368, "Where 
one of the jury's functions is to impose punishment for crime, 
a reference by the prosecutor to the defendant's right to appeal 
is more likely to be considered reversible error if a death 
penalty is subsequently imposed, no doubt for the reason that in 
weighing of imponderables it cannot be concluded that the jury 
were not influenced by such statements to impose more severe 
punishment than their unbiased judgment would have given."

The trial court's denial of a hearing to permit

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defendant to establish whether this uncertainty improperly
influenced the sentencing decision of the jury denied him due

5/
process of law.

CONCLUSION

For the foregoing reasons, this Court should reverse 
the decision of the trial court and order that defendant be
permitted a hearing on the motion.

Respectfully submitted,

— * --------------------------------------------

ROBERT H . STROUP2415 National Bank of Georgia Bldg. 
Atlanta,Georgia 30303 

(404) 522-1934
SAM J. GARDNER, JR.
P. 0. Box 6 8 
Valdosta, Georgia
JACK GREENBERG 
DAVID E. KENDALL 
10 Columbus Circle New York, New York 10019
ANTHONY G. AMSTERDAM 
Stanford Law School Palo Alto, California
ATTORNEYS FOR APPELLANT

Morrisey v. Brewer, 408 U. S. 471 (1972); Bell v. f. 422n s 535 (19 71) ; Groppi v. Wisconsin, 400 U. S. 505 (1971); 
Goldberg v. Kelly, 39 7 U. S. 25 4 (iT/O) ; Boddie v. Connecticut, 401 u.""s. 371 ("1970) ; Sniadach v. Family Finance Corp., 395 U.~. 
337 (1969); North Georgia Finishing, Inc, v. Di-Chem, Inc^, 419 
U. S. 601 (1975). Thp Supreme Court recognized in Gregg the 
great importance of procedural safeguards, "[w]hen a defendant s 
life is at stake." 96 S. Ct. at 2932, citing Powell v. Alabama, 
287 U. S. 45,71 (1932), and Reid v. Covert, 354 U. S. 177 (1957)

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this day served copies of 
the foregoing Brief for Appellant upon:

Honorable H. Lamar Cole 
District Attorney P. 0. Box 99 
Valdosta, Georgia 31601

and
Honorable Arthur K. Bolton Attorney General 
132 Judicial Building 
Atlanta, Georgia 30334

by depositing copies of same in the United States Mail, first-
class postage prepaid.

This day of November, 1976.

'R© fencer
JOHN R. MYER /