Georgia v. Ross Brief for Appellant in Forma Pauperis
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November 23, 1976

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Brief Collection, LDF Court Filings. Georgia v. Ross Brief for Appellant in Forma Pauperis, 1976. d547e22e-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f3f018d5-b88d-40d8-948c-0b3234e67385/georgia-v-ross-brief-for-appellant-in-forma-pauperis. Accessed April 27, 2025.
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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. -2- 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 -3- 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/ -4- 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 -5- 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) ------------------------ -6- 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 -7- 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 -8- 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) -9- 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 /