Carzell Moore v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

MOORE, Petitioner-Appellant, Carzell KEMP, Warden,

Ralph

Diagnostic and Classification

Center, Respondent-Appellee.

No. 82-8683. Appeals,

United States Court

Eleventh Circuit.

Jan. Morin, Rockville, B. Stephen

Robert E. Atlanta, Ga., Bright, petitioner-appel- for lant. Hill, Jr., Boleyn, Daryl

William B. Susan Gen., Atlanta, Robinson, Attys. Asst. A. Ga., respondent-appellee. RONEY, Judge,

'Before Chief GODBOLD, TJOFLAT, HILL, FAY, escaping from KRAVITCH, JOHNSON, after December VANCE, in Coch- ANDERSON, CLARK, prison late Green arrived HATCHETT, Moore, asking Moore had ran *, Judges, and Circuit EDMONDSON to number friends introduced Green Judge. HENDERSON,** Circuit Senior Cochran, among Pasby. On them Thomas *** TJOFLAT, Judge: Circuit January Moore was ar- Carzell Bleckley placed in rested and was I. County jail, days in Cochran. Five located A. later, authorities obtained a search warrant p.m. 12, Shortly before 7:00 December items, for Moore’s home and seized several 1976, patrons Majik several Market Puppy” including pair “Hush one of brown Cochran, store in Georgia, convenience gold items were shoes and a towel. These open store found the and unattended. The Georgia for submitted to crime lab register store’s cash safe open and were analysis. cashier, empty, and and the eigh- store's teen-year-old Allen, Teresa Carol was miss- 15, February 1977, grand On a jury in ing. Her automobile had also vanished. Georgia, County, Monroe in- returned an later, days Two Ms. body Allen’s was dis- charging dictment Moore and Green seventy covered over miles northwest of rape first-degree and murder of Ms. in County, Cochran Monroe Georgia. escaped Allen. Green from the Monroe body Found her footprints, near were two County jail prior recap- to trial and was not hulls, cartridge 30.06 a caliber 30.06 caliber result, years. tured several a in As bullet, jacket tracks, metal of a tire nylon a 1977, Moore separately June was tried be- stocking, pair a of leather gloves, work and Superior fore a in the Court Monroe parts flesh, teeth, of Ms. Allen’s and bone. County, Georgia. key witness for the immediately began Police a search for thirty-year-old was Pasby. State Thomas Ms. Allen’s automobile. Approximately Pasby was a resident Cochran and later, one month the automobile was dis- employed as a cement finisher in Hawkins- covered in South in possession Carolina ville, Georgia. He testified he had escaped convict, of an twenty-year-old years known Carzell Moore for fifteen and Green; Roosevelt Green had been arrested 1974, that since his return to Cochran in for an unrelated convenience robbery. store serving Army eight after in the years, jail From Green made telephone a call “spent he had lot of time” with Moore. acquaintance, of an mother According Thomas Pasby, in late November Pasby, stated, and “Tell Carzell Moore I’m to a drove Moore location in Coch- jail in in South Carolina.” The shop. law ran near flower Moore Pas- asked park enforcement officials investigating Ms. Al- for him and wait to return. len’s murder learned of telephone passed, this After a few had call minutes Moore questioned and persons carrying number of returned to the car a 30.06 in caliber possible hunting Cochran weapon. about rifle similar to the murder links between later, Pasby accompanied Green and Moore. A few weeks They discovered that Green met Moore to an schoolhouse and Moore and abandoned where became friends kept prison while Moore the rifle. Alabama, were in examined in * EDMONDSON, HENDERSON, Judge, Judges, Circuit became cuit a member Senior Circuit appeal orally of the court after this Judge, had been in concur Part I and Part IV. argued participated has but this decision after RONEY, HILL, FAY, Judge, Chief VANCE listening recording argument. ato of oral See EDMONDSON, Judges, Circuit and HENDER- 24(g). 11th Cir.R. SON, Judge, Senior Circuit concur Part II. ** HENDERSON, Judge, has elect- Senior Circuit GODBOLD, VANCE, KRAVITCH, JOHNSON, participate proceedings ed to in further HATCHETT, ANDERSON, CLARK, Circuit 46(c). pursuant matter § to 28 U.S.C. Judges, Judge, concur Part III. RONEY Chief *** RONEY, GODBOLD, HILL, FAY, VANCE, Judge, HILL, FAY, ANDERSON, CLARK, Chief VANCE, KRAVITCH, JOHNSON, EDMONDSON, HATCHETT, Judges, Circuit and HENDER- SON, CLARK, ANDERSON, EDMONDSON, Judge, concur Senior Circuit in Part V. Cir- number testimony. its serial Terry Kilgore, of a noticed the owner rifle and Cochran, shop flower testified that obliterated. 30.06 hunting rifle was stolen from his January testified that Pasby also truck some Thanksgiving time after Hawkinsville, Moore 1977, during trip rifle, registered Kilgore’s name, raped he had to him that confessed determined in a ballistics test to have been how the Ms. Allen and described murdered weapon. the murder Green had the rifle in Pasby related committed. crimes were possession morning Majik after the description of the events of De- Moore’s robbery. Livingston Market Charles testi- follows. Roosevelt cember that, morning, fied dis- on that Majik Market and Green arrived at entered Green enter his home in driving Ms. Allen so that Moore could South Carolina tracted auto- being noticed. without the rifle mobile similar Ms. the store Allen’s car. store, men robbing possession the two ab- bills, After Green’s were a roll of away in her Ms. Allen and drove bag,” large (all ducted “bank amount coins car, driving Moore Green car. With which were consistent with items taken then raped Ms. Allen. The two men ex- Market), Majik from the and a 30.06 caliber raped Al- changed places, and Moore Ms. rifle. Green traded the 30.06 caliber rifle time told Green to len. Some later Moore Livingston’s for .25 caliber pis- automatic got He out of the car with stop the car. police tol. The subsequently confiscated go gas to a Ms. Allen and told Green rifle, Kilgore identified it during get gas the car. After Green station to testimony. left, pointed the rifle at Ms. Allen. Moore Johnson, Johnny acquaintance crossing her her arms over She reacted Moore’s, testified that on December the rifle into Moore then fired stomach. days three before the robbery, Moore into He fired a second shot her abdomen. him they asked and a friend if knew of a attempt in an to make identifica- her face place to “hit.” Moore told them that he returned, When Green tion difficult. high-powered had a rifle and ammunition up body and threw it picked two men robbery. would be useful in a Three by the side of the road. into the bushes other witnesses testified that on the after- Pasby rifle shot Moore told that his first noon of December saw Moore and mangled one of the victim’s hands had so home, approximately Green Moore’s four thought going that he it was to fall off. Majik blocks from the Market. During examination, his direct Pasby tes- gasA station attendant who worked at January he had on tified that been arrested an Amoco station near the murder site by taking. Pasby for theft said night testified that on the of the murder a place in that the arrest took Hawkinsville matching description car of Ms. Allen’s shortly after he was taken into and that stopped gas. persons automobile Two Bleckley custody he was transferred to the car, were in the and the attendant remem- County jail Pasby testified Cochran. male, passenger, bered that a black jail placed that Moore was with paid gas for the and used the restroom. following January Moore’s arrest on Although he was unsure of the sex or race that, jail Pasby stated while he was driver, the attendant testified that Moore, he that Roosevelt with learned thought he the driver was also a black Moore had been arrested told Green male. exclaimed, the arrest.1 Moore about “Damn, get I told rid of that car Green experts utilized a number of State and rifle.” physical inform the about the case con-

The remainder of the State’s found at the murder site and in the search corroborating Pasby’s pathologist sisted of evidence of Moore’s home. The who Pasby freely testified that he large cell to cell. County jail Bleckley consists of a 1. The on television of Green’s arrest heard the news several smaller divided into enclosure which is notify him of Moore’s cell to he went to According Pasby, and that the doors to the cells cells. allowing prisoners the arrest. open, to move remained blood, autopsy Ms. performed type on Allen testi- A she testified opin- that in her injuries fied her were consistent ion seminal fluid could have come from rape description to Moore’s Moore “strong because he awas secretor” body and murder. His examination Pasby, not have come from be- arm, wounds in each revealed bullet cause he was a “weak secretor.” abdomen, From and the head. the location Carzell Moore testified his defense. wounds, pa- the bullet and nature of He stated twenty-four years thologist theorized Ms. Allen’s arms employed old that he was aby lumber over her when had been crossed stomach company in Cochran. Moore admitted that shot, allowing pass one bullet she was Alabama, he met Green in a penitentiary in through entering her both arms before ab- that Green had escaped peniten- from that right domen. He noted that the arm was tiary in late and that Green had ar- completely torn in “almost two” in Cochran looking rived for him on Decem- bullet, right remaining with the hand at- ber 1976. Moore also admitted that he body only by soft tached tissue. He stay had allowed Green to in his home and separate also stated that bullet entered had introduced to many Green of his side of the head the left victim’s over her friends in Cochran. He stated that examination ear. His also revealed bruises robbery afternoon of the he and Green had thigh vaginal injuries inner indi- drinking. Moore testified that after prior Allen cating raped that Ms. had been Green left home on foot headed toward being killed. town, passed he out on a couch. He denied A testified that ballistics bullets participating robbery and denied fired from the 30.06 caliber rifle confiscat- making any statements about the Livingston and registered Terry ed from incident. jury rejected Moore’s testi- slug Kilgore matched 30.06 caliber re- mony and guilty returned a of verdict on trieved at the murder site. Till- Warren both the rape first-degree and the murder man, microanalyst from the state crime counts. lab, plaster that a cast testified of a foot- During phase trial, sentencing of print body found near the was similar presented the State documentary evidence design pair size and its treadless to the of prior Moore’s burglary convictions for Puppy” of “Hush shoes seized in the possession marijuana. and for of Moore of search Moore’s home. His examination testified, then asking jury mercy for plaster of casts tire tracks near found repeating his denial involvement site revealed that murder the tracks mother, in the incident. His Catherine design were similar size and tread Moore, testified, asking also jury tires on Ms. Allen’s automobile. Tillman spare rebuttal, her son's life. In the State opinion also testified that his a Cauca- Allen, Joseph called the victim’s father. pubic Negroid sian hair and head re- hair daughter He testified that his would have gold moved towel seized in the been on nineteen December had search of Moore’s home could come school, high been honor student in from Ms. Allen Mr. respectively. and Moore attending Georgia College addition, par- Middle on a stated Negroid he scholarship tial studying to become a head hair found on the did come towel not nurse, working part had time at from Roosevelt Green or Pasby. Thomas Barton, Majik help pay Market to her Finally, Linda edu- a crime lab serolo- gist, deliberating, vaginal cation. After recom- swabbings testified that taken penalty rape from the mended the death victim both revealed seminal fluids first-degree from an murder type individual with A counts and blood. She following statutory aggravating concluded found the that the seminal fluid first, Green, have come from Roosevelt crime com- because circumstances: each type he Although had B during blood. the serolo- mitted commission of additional gist felonies, i.e., found that and Pasby capital both Moore the murder was com-

707 rape, ing, petition. of the denied Moore’s during the commission mitted robbery, Georgia and the Supreme and armed kidnapping, Court denied Moore’s during the commission committed rape was application probable certificate murder, and armed rob- kidnapping, of the appeal, cause to and the United States Su- 17-10-30(b)(2) (1982); see bery, O.C.G.A. § preme petition Court denied for a writ second, outrageously and, each crime was of certiorari to review the state habeas vile, horrible, and inhuman in wantonly Zant, decision. Moore v. corpus 446 U.S. victim and of the it involved torture 947, 2176, (1980). 100 64 803 S.Ct. L.Ed.2d part mind the de- depravity Thereafter, Moore filed second habeas 17-10-30(b)(7) see O.C.G.A. fendant, § corpus petition in the Superior Court of law, (1982). required Georgia As in an effort County Butts to exhaust those adopted jury’s recommenda- judge issues had failed raise in of death on and entered a sentence tion previous judicial proceedings. The court both counts.2 summarily petition dismissed the without holding hearing. In response, Moore B. application prob- filed an for a certificate of appeal, Supreme Court of direct On appeal, able cause which the convictions and Georgia affirmed Moore’s Court denied. State, 807, Moore 240 Ga. sentences. remedies, Having exhausted state denied,- 439 U.S. 903, cert. S.E.2d petition Moore filed the instant for a writ (1978). 268, 58 L.Ed.2d 249 Moore in the corpus of habeas court on district Superior petitioned the subsequently April 1981. Moore raised sixteen claims County cor- Butts for a writ habeas evidentiary petition of error.3 The pus. conducting After hear- was referred to a Georgia, U.S. 97 S.Ct. court’s denial of motion for a 2. Coker v. (1977), days change prejudicial pretrial decided after L.Ed.2d 982 venue based on imposition sentencing, precludes petitioner's publicity denied him a fair trial in violation of rape. penalty fifth, amendments; sixth, (3) death for the crime of and fourteenth challenged sentence his death on the Petitioner rape petitioner’s request the trial denial of for court’s appeal Supreme to the count in his direct independent expert attorney in an assist his State, 807, Georgia. 240 of Moore v. Ga. Court confronting physical in- the evidence the State 1, 903, denied, cert. 439 U.S. 99 S.Ct. 243 S.E.2d 268, rights against troduced him at trial violated his (1978). L.Ed.2d The court read 249 fifth, sixth, and under fourteenth amend- the allowing rape in as a death sentence Coker ments; (4) petitioner was denied the effective immediately victim is fol- case if the lowing murdered stages at all criminal assistance of counsel of his rape petitioner’s affirmed the and thus trial, sentencing, prosecution pretrial, and di- — 822, at at 11. In his sentence. Id. 243 S.E.2d appeal proceedings in his state rect habeas —and court, petitioner petition in the district habeas sixth and amend- in violation of the fourteenth precluded death that Coker sentence claimed ments; (5) prosecution’s to reveal failure rape rejected court count. The district on key promises witness, Pasby, made to Thomas the State’s stating any without reason for its his claim rights process due violated questioned rul- decision. Petitioner has not ing amendment; (6) petition- under the fourteenth therefore, appeal; pass do not on in this we er’s were based on convictions false does on it. Petitioner attack his death sentence of the fourteenth amendment due violation count, count, rape as murder well as clause; (7) petitioner’s process were convictions ground judge ade- on the that the trial failed illegal resulting upon based sentencing jury quately its to instruct the fourth search his home in violation of the of despite impose option sentence a life amendments; (8) court the trial fourteenth aggravating statutory presence of a circum- improperly jury of instructed the on the issues IV, in Part stance. We address this claim infra. conspiracy guilt doubt and at reasonable claims, phase petitioner’s trial in violation petition Although the listed 33 we con- 3. amendments; (9) eighth the ad- clude, and fourteenth reading, petition after a careful inflammatory hearsay mission of exhibits cognizable constitutional claims. contained hearing petitioner a at both (1) evidence denied fair claims were the exclusion of These that: phases sixth and in violation of the of his trial young adults and from the venires from women amendments; (10) prosecutor petit jury fourteenth petitioner’s grand jury and which prejudicial improper and remarks process made due chosen denied him viola- were trial, amendment; (2) sentencing phase jury at trial the fourteenth tion of magistrate findings jury who made resubmit his abeyance fact and so that he could Georgia claim to courts. conclusions of law instruction recommended that deny petition the district court without Moore immediately petition filed a hearing. evidentiary September 20, On corpus habeas relief in the Superior Court County. Butts the district court After entered an an evidentiary order hearing, the court dismissed peti- Moore’s adopting magistrate’s recommendation tion as Supreme successive. The Court of denying petition. appealed, Moore Georgia April 24, 1985. affirmed on Moore contesting disposition the district court’s as Kemp, v. 254 Ga. 328 S.E.2d 725 addition, In of his claims.4 Moore five (1985). After being notified disposi- of this that the district court erred in contended tion receiving supplemental briefs, we hearing evidentiary refusing to hold an heard further oral argument in this case on of this panel A his claims.5 to four October arguments and af- rejected Moore’s court proceed We now to a discussion of the of relief. denial court’s district firmed four prompted claims that us to rehear this (11th Cir. F.2d 640 Zant, 722 case (1) v. en Moore banc: the trial court’s opinion and panel denial of 1983). vacated pretrial We Moore’s request for an independent expert to assist his attorney in rehearing en petition Moore’s granted confronting the physical evidence the State During argu- oral 15, 1984. March banc on against introduced him at trial denied him that a recent ment, parties informed us process due law; (2) that the district decision, Georgia erred refusing to hold an evidentia- 113, 311 Floyd, 252 Ga. Stynchcombe ry hearing to determine whether prose- represent (1984), appeared S.E.2d cutor portions withheld Pasby’s Thomas directly law related to change criminal record from the defense and appeal. raised Moore an issue whether against testified pur- Moore jury instruc- held that a the court Floyd, suant to an agreement undisclosed with the challenged in virtually to one identical tion State; (3) that the trial sentencing court’s because erroneous case was Moore’s instructions to jury did not adequately option jury of its to inform the failed inform it of its option to return a life spite sentence in a life recommend sentence, even if it found a statutory ag- statutory cir- aggravating presence of a gravating circumstance; (4) Id. S.E.2d cumstance. testimony of the victim’s father during the appeal held Accordingly, we Moore’s sentencing phase of the deprived denying process mitigating precluded thus him due law in viola- circumstances amendment; (11) considering mitigating tion of the fourteenth the trial circumstances oth- sentencing jury petitioner's age by specifically er noting court’s instructions to did than factor, (d) adequately option, only not it of inform its under and the trial court failed to law, Georgia require jury findings a life return sentence even if it make of fact as to factors; (14) mitigating statutory aggravating of found the existence of a existence a death rape deprived petition- eighth sentence for crime of circumstance in violation of the and amendments; (12) proportionate er of a sentence to his crime in fourteenth of eighth of sentencing violation and hearing fourteenth amend- the victim’s father at the ments; (15) Supreme Georgia deprived petitioner right Court of de- sentencing his of petitioner adequate nied hearing review of his convic- passion prejudice free from and in vio- sixth, eighth tions and eighth, sentences in violation of the lation of the and fourteenth amendments; (16) amendments; and (13) fourteenth petitioner deprived of penalty administers death in a guided discriminato- right jury his to the exercise of sentenc- ry eighth fashion violation ing and four- eighth discretion in violation of the (a) teenth amendments. fourteenth amendments because the trial permitted present jury court the State to 3, supra, petitioner's prior These claims 4. history, are described note as criminal 10, 11, (b) 3, 13(a)-(c). claims 12 the trial & court instructed the to consider constitutionally statutory aggravating defective 17-10-30(b)(2), 3, supra, circumstances under O.C.G.A. 5. These claims are § described note (b)(7) 5, (1982), 4, (c) trial claims 6 & court’s instruction on

709 hearing sentencing adequate an defense those right to ... when tools of his Moore price prison- for a prejudice. As to the are available to other passion and free from Carolina, v. North appeal, ers.” Britt 404 U.S. Moore raises on remaining claims 431, 226, 227, 433, 92 S.Ct. 30 L.Ed.2d 400 panel opinion. we reinstate (1971); Oklahoma, Ake v. see also 470 U.S. 83, 1087, 1094, 1097, 105 S.Ct. 84 II. (1985); 53 Ross Moffitt, L.Ed.2d v. 417 U.S. indigent his at the time of Petitioner 600, 2437, (1974); 41 94 S.Ct. L.Ed.2d 341 trial, Prior to he moved prosecution. Illinois, 12, 76 U.S. S.Ct. Griffin 585, “criminologist or other provide a court (1956) (plurality). L.Ed. 891 attorney in the witness” assist his expert provide indigent state need not defendants presentation of his de- preparation their all the assistance wealthier counter- court motion. Peti- denied the fense. buy; rather, parts might fundamental fair- deprived that this claims denial tioner requires deny ness state not them fundamentally fair trial right to a of the adequate opportunity present “an their process the due clause guaranteed fairly adversary system.” within the claims amendment;6 fourteenth he cites two Ross, 2444-45; 417 U.S. at 94 S.Ct. at First, without the assistance reasons. Ake, 470 U.S. see also S.Ct. at ade- expert, attorney his was unable an hand, case at petitioner 1094.7 con- ex- to cross-examine the State’s quately court, denying that the state tends Tillman, microanalyst, perts, Warren appointment request for the of a “crimi- Barton, serologist, and thus Linda expert witness,” nologist deprived or other conclu- challenge validity of the adequate him a basic tool of defense an Sec- they derived from their tests. sions rendered fundamen- and therefore his trial ap- ond, expert asserts an tally unfair. con- might assist have pointed to counsel can assist expert An a criminal defendant tests, different and more conclusive ducted marshaling his defense in two essential might supported of which the results First, facts, gather inspect he can ways. defense. his alibi evidence, tangible tests or ex- conduct counsel in aminations aid defense A. case, confronting prosecution’s includ- estab precedent witnesses, fashioning ing expert its or in process Second, principle the due can theory lishes of defense. prosecu- re provide opinion testimony of the fourteenth amendment to rebut clause state, provide or to affirmative quires upon request, tion evidence establish an case, defense, given insanity. such as In a indigent defendants with the “basic tools equal protection or the sixth to the en banc clause 6. Petitioner asserts his brief that the trial court’s denial of his motion amendment. appointment him a for the denied trial, process in violation due fair Among deny tools the state must not equal protection amendment, the fourteenth clauses indigent proceeding in a defendant criminal are attorney rendered ineffective trial, Gideon v. the assistance counsel meaning of the sixth and fourteenth within amendments, Wainwright, 372 U.S. subjected petitioner cruel (1963), and first L.Ed.2d 799 on the defendant’s punishment of the unusual in violation and right, California, appeal Douglas as of v. direct eighth Because and fourteenth amendments. 353, (1963), 814, S.Ct. 811 U.S. 83 9 L.Ed.2d 372 alleged error is in discussion the necessary transcript, a is and a trial if it received, we of the fairness the trial he terms appeal, merits v. decision on the of the Griffin addressing process analysis in utilize a due 585, 12, Illinois, 76 100 L.Ed. 891 351 U.S. S.Ct. Supreme approach This is the same claim. (1956). necessary are to ensure that These tools Oklahoma, employed in Ake 470 U.S. Court justice indigent is defendant’s access to an 13, 13, 1087, 68, 105 S.Ct. 1099 n. 84 87 n. 68, Oklahoma, meaningful. U.S. See Ake v. 470 (1985), a claim 53 in which it examined L.Ed.2d 1087, 1093-94, 76-77, S.Ct. 84 L.Ed.2d 53 105 process psychiatric assistance under the due (1985). applicability and declined consider clause 710 expert of an could be so Ake

the assistance was arrested and charged with mur- important dering couple defense that without it an wounding and their two or, be innocent could convicted his arraignment, defendant children. At and while in least, public’s jail, very at the confidence in his behavior was so bizarre that the of his trial its judge, sponte, the fairness and outcome trial sua ordered exam- so, indigent Even ined psychiatrist. be undermined. As a result of that examination, who defendant did not have assistance Ake was committed a state presenting hospital expert preparing of an for a determination his compe- complain tency his case cannot be heard to about later, stand trial. A few weeks process grounds his conviction due un- psychiatrist chief forensic at the state timely request hospital less he made trial told court that Ake was not assistance, provision competent court for the to stand compe- trial. After a improperly request, tency denied the court hearing, court Ake found to be a and the denial rendered defendant’s “mentally person ill in need of care and fundamentally treatment,” 71, unfair. 1091, at id. 105 at S.Ct. incompetent to stand trial. The court or- us, timely request In before the case dered him committed to the state mental appointment for the hospital. later, weeks Six chief foren- question made. The we must decide next psychiatrist sic Ake, advised the court that the trial denying is whether court erred in being who was antipsy- treated with an Specifically, it. we must assess the reason- drug, chotic competent become judge’s the trial ableness of action at the stand trial. The court thereafter found time he it. This took assessment necessar- competent, Ake to pros- and the criminal ily sufficiency petition- turns 70-72, ecution resumed. See id. at 105 explanation er’s as to why needed an S.Ct. at 1090-91. is, expert. having That heard explanation, judge should the trial have pretrial conference, At a defense counsel granted concluded that unless he his re- informed the that his client would quest likely petitioner would be denied an insanity raise an defense at trial. The at- adequate opportunity fairly to confront the torney pre- further stated that in order to present State’s and to case his defense? pare present psychia- that defense a

trist would examine Ake with re- B. spect to his mental condition at the time of during stay murders. Because at adopted ap hospital the state Ake was not examined to proach described above in Ake v. Okla sanity determine his at time homa, 68, 83, U.S. 470 105 S.Ct. and, indigent, offenses as an could not af- (1985), L.Ed.2d Caldwell v. psychiatrist, ford pay counsel asked 320, Mississippi, 1, 472 U.S. 323 n. arrange provide the court either (1985) n. 86 L.Ed.2d 231 necessary funds such an examination. Ake, (plurality). the Court concluded The court denied counsel’s motion. See id. process guarantee that the due clause’s 105 S.Ct. at 1091. implicated fundamental fairness is “when indigent] trial, defendant At dispute demonstrates to defense counsel did not [an judge sanity the trial that his charged crimes; the time of Ake’s involvement significant argument offense to be a factor at his sole Ake was not must, trial” “the guilty by and that State of insanity. support at a mini- reason To mum, argument, assure psychia- defendant access to a his counsel called competent psychiatrist will who conduct an trists who had examined at the Ake state appropriate questioned hospital examination and assist in eval- them about his uation, preparation, presentation mental condition at the of the of- time Ake, defense.” were They U.S. at 105 S.Ct. at fenses. unable to render an opinion point, however, on the because

711 explanation requesting expert that purpose. Ake for for assist- had not examined result, sanity ance, his one testified As a no was unreasonable the trial offenses, and, having at the time of the judge request; denied the have proof on the carry his burden failed should known that to refuse the re- defense, insanity guilty he received ver- quest would deny be to the defendant an sought the death then dicts. The State adequate prepare opportunity to sentencing Following hearing, penalty. a present insanity defense. The Court no presented additional parties which the concluded, further on the basis of what jury recommended expert testimony, the trial, place took at of expert that the denial Ake to death for each of sentenced precluded assistance Ake from presenting murders, and he was the two sentenced an effective defense. accordingly. case, Caldwell, In capital also a the Su- Oklahoma appealed Ake Court of preme again faced with a claim claiming, among Appeals, other Criminal trial provide that a court’s refusal things, his convictions death sen- expert defendant with assistance denied invalid because the trial tences were the defendant a fair trial. Caldwell asked psychiatric provide assist- court’s failure appointment for the investiga- of a criminal trial. The him a fair court of ance denied tor, fingerprint expert, ballistics rejected that appeals criminal claim on a expert. His requests were denied. The holding procedural ground, that he had supreme state court affirmed the denials challenging waived it the trial requests accompanied “because the were motion for a trial. ruling court’s in his new showing no as to their reasonableness.” States, Supreme The Court of United 323, 1, Caldwell, n. 472 U.S. at S.Ct. certiorari, Ake’s reversed conviction and example, 2637 n. For motion re- the case for a new trial because remanded questing only the ballistics included provide psychiatric the failure to assistance general that the statement process operated deny Ake due of law. necessary; explain the motion failed to conclusion, reaching Supreme In specific expert was why terms needed. information Court focused on the available State, 443 So.2d Caldwell v. See judge to the trial when defense counsel (Miss.1983), grounds rev’d on other sub requested psychiatric assistance and on the Mississippi, 472 U.S. nom. Caldwell v. effect the denial of such assistance had (1985) (plu- 105 S.Ct. 86 L.Ed.2d presentation Ake’s trial. defense at rality). Supreme The Court concluded that The Court observed that when Ake’s coun- “petitioner offered little more than because requested provision psychia- sel undeveloped requested that the assertions trist, insanity knew that judge trial beneficial, assistance would be [there was] defense, be Ake’s sole that his case Caldwell, deprivation process.” no of due prove ability rested on that he was 472 U.S. at 324 n. 2637 n. crimes, insane he committed the when (citation omitted). psychiatrists that none of the state who Supreme Court’s statement Cald- Ake had and treated had under- examined implies government’s well refusal taken to his mental condition at assess provide expert assistance nonpsychiatric addition, judge time. the trial had deter- could, case, given deny in a a defendant a previously suffering mined that Ake was questionable, implication fair trial. The from mental illness have affect- however, subsequent in light of the Court’s shootings ed him at the time “no need to deter- statement that it had incompetent to rendered him stand trial federal constitutional mine as a matter of Finally, judge period. a six-week trial showing would have enti- law what only knew stand trial if he that Ake could type tled a to assistance defendant remained under medication. added). (emphasis sought.” Id. that, given be- Court concluded facts [Caldwell] assume, argu- for sake of fore the and defense counsel’s We nonetheless judge ment, process token, due the clause could same the defendant desires the government, appointment state and fed- require expert both of an so can eral, provide nonpsychiatric expert to as- present defense, an affirmative such as indigent upon insanity, sistance to an defendant a he must demonstrate a substan showing defense, of need. sufficient tial basis for the as the defendant instance, In did Ake. each the defend Caldwell, togeth and Ake taken showing specific ant’s must also include a er, hold that a defendant must demonstrate description the expert experts of or de than something possibility more a mere of sired; information, without this basic requested expert;8 a assistance from due grant court would be unable to the defend require process government does motion, ant’s because the court would not defend-, provide automatically indigent to type know what of expert was In needed. expert upon ants with assistance demand. addition, the defendant should inform the Rather, reading precedents a fair of these why particular expert court is neces is that a defendant show must the trial sary. recognize We that defense counsel court that there exists a proba reasonable may be unfamiliar the specific scien bility an expert both that would of as implicated tific theories in a case and there sistance to the defense9 and that denial of expected provide fore cannot be expert assistance would result in a funda analysis court with a detailed of the assist Thus, mentally unfair trial. if a defendant appointed expert might ance an provide. expert attorney wants an to assist his believe, however, doWe that defense coun confronting prosecution’s proof by — obligated sel is to inform himself about the preparing counsel cross-examine the specific question scientific area in and to experts prosecution’s by providing re provide the court with much as information buttal must inform the court —he possible concerning as the usefulness of prosecution’s of the nature of case requested expert to the defense’s requested expert how the would be useful. case.10 least, very At the he must inform the trial court about nature mind, of the crime and the foregoing principles With the we linking him By to the crime. address the merits of claim. courts, Requiring federal, omitted) (In Prichard, state both City Bonner v. 661 F.2d provide expert through to appointment substantial, for (11th (en direct Cir.1981) banc), this court assistance— grant place of'funds —would adopted binding precedent all decisions of onerous, if not burden on ad- prior the former Fifth Circuit handed down justice. example, ministration criminal For 1, 1981.). October (1) appoint the trial have to every expert defense for available Florida, jurisdiction In a like which accords (2) government; provide assistance discovery rights, the defendant substantial see such whether or not needed; assistance turned out to be (requiring prosecution Fla.R.Crim.P. 3.220 (3) provide ex- additional disclose, among things, other written statements perts appointed experts might need to ex- persons having relevant and re- information plore theories could aid the defense in ports experts, including or statements of results cross-examining prosecution witnesses or in tests, allowing of scientific defendant presenting question the defense’s case. We depose any person having relevant informa- process requirements due wisdom such ab- tion), difficulty the defendant have should no showing, sent a substantial such as one demonstrating government's theory of the Ake, significant of a made benefit outlining prosecutor case the evidence the truth-seeking function a trial. probably present difficulty will at trial. The required showing analogous 9. This is to the re- vary depending task the defendant’s will on the quirement indigent wishing that an defendant scope jurisdiction’s discovery rules. subpoena govern- obtain the issuance ambush,” jurisdiction employing still "trial expense satisfactory showing ment "a make ... might defendant have ask the court to presence necessary witness prosecutor theory make the disclose adequate 17(b). defense.” Fed.R.Crim.P. case and the results of tests that Abshire, See United States F.2d performed by government experts or at the (5th (“[A] Cir.1972) 17(b) Rule motion must government’s request. relevancy necessity state facts that show requested (citation testimony.") witnesses’ reports, analysis, ttle Crime Lab chemical examining the information begin by We physical and so forth conducted on the evi- it ruled on court when the trial before following then the dence.” Welch made motion. motion: like to We would make motion to the C. independent an Court that research 10, 1977, January petitioner was On analysis appointed by be this Court [sic] charged murder of with the arrested by the employed that is not State of later, January on Allen. weeks Ms. Two Georgia this evidence to to examine find Welch, 24, and Rod A.J. Jr. attorneys conclusions on behalf of the de- own appointed peti defend were to Meadows fendant, conclusions, reach in to his own Sosebee, Hugh D. tioner the Honorable all, order that can first of have some- we assigned superior judge who was the court expertise one us to to advise the presided over the case and who later to Lab, Georgia the Crime whether or not day, a Later “com petitioner’s trial. tests, they performed the correct wheth- hearing”11 held another mittal before er or could not there variances the Honorable Sam C. superior judge, court Lab, findings Georgia the of the Crime 1977, 9, a tran February Whitmire.12 On knowledge order we have this would hearing was filed script of the committal to us. available to this placed in the record. Attached The court did not rule on the motion but portion transcript the document was the to submit motion instead asked Welch hearing held for the committal writing. containing the Roosevelt Green grand was indicted Petitioner sheriff, County L.C. Bittick. of Monroe eliminating day, thereby later need testimony, In his Sheriff Bittick described terminating hearing committal tests Linda the results of conducted Judge jurisdiction Whitmire's over Barton, serologist, on crime lab some State, Ga.App. 132 Douglas case. See body fluid found seminal (1974). subsequent All 209 S.E.2d samples blood and victim Green’s proceedings case were han- sheriff, According to Barton saliva. by Judge dled Sosebee. determined from these tests had 24, 1977, petitioner’s ap- February On produced by individual seminal fluid was permis- court’s pointed counsel asked the had A was also a type blood and who withdraw, appointed court sion and the Barton had determined that “secretor.” Freeman, Jr., to attorney, new W. Franklin blood, eliminating B type thus Green represent petitioner. Freeman continued possible as a of the seminal source copies of press State for written fluid. lab, he request- reports from the crime 15, 1977, February Judge Whitmire On provide him with a list ed the State hearing discovery mo- presided over a call at trial. On the State would witnesses At by petitioner’s filed counsel. request tions at the of counsel for April hearing, attorney side, defense the court continued scheduled conclusion of each hearing parties the State had so that pretrial both Welch advised copies reports the crime lab. The examine the agreed provide the defense including reports, ten including crime lab issued evidence ... physical of “all — U.S.-, ied, law, being 89 L.Ed.2d 106 S.Ct. Georgia held in Under accused (1986). preliminary hearing, custody of can demand hearing," pur for the "committal ten termed a proba determining pose of there exists whether preside Judge did over the com- Sosebee perpetrated accused ble cause to believe hearing, under law mittal because and, so, charged whether bind crime assigned try the case judge who has grand jury. See O.C. the accused over hearing. See preside over committal cannot 17-7-23(a) (1982); Kemp, Fleming v. G.A. § 17-7-23(b) (1982). O.C.G.A.§ Cir.1984), (11th n. 14 cert. den F.2d day, and Linda On the Freeman filed Tillman Bar- same a writ- reports of Warren days styled Request after ten motion three Free- “Motion April ton. On gave Criminologist or reports, Appoint the State Other man received testify Expert Defense witnesses Witness Assist Counsel him a who list of were named as and Plea in Abatement.” al- Tillman and Barton motion trial.13 (1) leged following:14 that document. witnesses statute, upon required by time- 13. The State 6. motion, ‘‘any ly produce copies of written Defendant has been informed that the vari- possession prose- physical reports the of the ous items of scientific evidence tend to connect in whole him will be introduced or in to a commission cution which of the crime for which prosecution charged, by though he part against the is even defendant defendant under- performed O.C.G.A. stands that a § or rebuttal.” 17- number of the tests its case-in-chief 7-211(b) (1982). by the State Crime conclusively Lab do not defendant, prove presence but rather prove presence of someone similar to de- complete 14. The text of the motion is set out fendant. below: 7. Neither defendant nor his counsel are suffi- REQUEST THE COURT TO AP- TO MOTION ciently knowledgeable to determine whether OR OTHER EX- CRIMINOLOGIST POINT performed the test and by examinations WITNESS TO ASSIST DEFENSE PERT pieces State Crime Lab on the phys- various IN ABATEMENT AND PLEA COUNSEL conclusive, complete, ical are evidence or ex- MOORE, CARZELL Defendant Now comes haustive. Defendant understands that there named, appoint and Court to above moves the are certain tests which can be run which criminologist expert witness other to as- might conclusively prove whether or not the showing by counsel sist defense samples defendant, hair found are those from following: but neither defendant his nor counsel have 1. necessary expertise perform funds or by Bleckley Movant arrested Coun- said tests. ty Department January Sheriffs of 1977 on 8. charge of Murder of Teresa Allen. Appointed effectively pre- Counsel cannot pare the defense for Defendant without the 2. undersigned appoint- expert counsel has been services of an witness to advise him represent concerning ed to Defendant. by tests and examinations run judicial the law agencies enforcement and 3. provision and no has made for the De- has been Defendant indicted for murder fendant to have available to him the kind of by rape County Jury. the Monroe Grand resources which are available the State 4. through Laboratory the State Crime in order Approximately ninety-four physical items of validity Defendant can test the of and by evidence have been assembled the District accuracy tests which have been run Attorney [sic]; of the Flint Judicial Cirucit by the and the may State results of which County Department; Bleckley Sheriff’s Mon- against introduced into evidence the defend- County Department; roe Sheriffs Cochran ant at trial. Police; City tion; Georgia Investiga- Bureau of Lab; State Crime the Hon- Georgia, Under laws Defendant has Honree, County Department; ree Police [sic] right any pre-trial no pre-arraignment Carolina; City Conway Depart- South ment, Police except discovery to the extent that the state is Carolina; Conway, South the District obligated produce information which Circuit; Attorney the Oconee Judicial might exculpate tend the Defendant or miti- officers, agents, employees of all the gate alleged his in the involvement crime for (hereinafter above referred to as Law En- which he has been indicted. There is no Agencies). Among forcement Judicial Georgia giving statute in law the De- samples, the items are assembled blood saliva right compulsory legal process fendant the specimens, specimens and hair from the de- require which will the State to advise the shoes, Additionally, gun, fendant. cloth- Defendant basis on which the State ing, hosiery, castings, types foot and other attempt prove intends to that the Defendant physical evidence have been assembled guilty of the crime for which has been agencies. judicial said law enforcement and statutory indicted. The absence of such Georgia, together or other law in with the indigent, indigency Defendant is cannot afford Defendant and failure of procure provide private, independent the services of a the Court to the Defendant with re- independent to assist and sources advise to make own investi- the scien- analysis gation tific of this into certain scientific evaluations evidence. expert, indicted on motion for an (2) had been indigent; murder; (3) had court did not at that time rule on the State the mo- rape and expert. physical evi- tion for an items of assembled various shoes, clothing, ho- gun, including a dence hearing, 4,1977, May At the next held on castings, and had taken siery, foot called Sheriff Bittick to State rebut the blood, saliva, samples the defendant claim that the warrant defense’s issued for been examined and hair that home search of was not lab; (4) some of these Georgia crime supported by probable cause. From the to con- physical tended items of testimony, Judge sheriff’s Sosebee learned physical person with petitioner, nect or a footprints found near the victim’s his, the com- similar to characteristics body appeared to have been made shoes crimes; (5) charged defense mission of the molded, sole, with a treadless such as a without the counsel could not determine shoe, Puppy” pair “Hush brand that a any tests of an whether assistance Puppy” matching of “Hush shoes the size complete by the crime lab were performed footprints discovered at the murder conclusive; (6) defense counsel be- scene had been found home performed be on lieved that a test could Following five weeks later. the sheriff’s “might conclusively samples hair testimony, court denied the motion to samples or not the hair prove whether following suppress. discussion then the scene of the [by police found ensued. those from defendant.” are murder] BY I my MR. FREEMAN: think next request motion was a motion to hearing, April At a motions also held on expert appoint to witness and Court called the court’s atten- defense counsel incorporated plea in that was the appointment to his motion for the of an tion abatement. and, expert asked the court if he when support of the mo- BY THE COURT: Plea in anything say abatement tion, everything grounds? I on what responded: “I think to this would be contained in Well, have relative gener- BY MR. FREEMAN: it’s thereafter, Shortly the court the motion.” ally trying para- I think in stated. hearing give motion, defense coun- recessed the phrase the we contend that we’re prepare a motion to peculiar sel further time entitled because of the circum- case, had obtained suppress evidence the State we’re entitled to an stances of this petitioner’s residence during expert deciphering the search of to assist us in witness January five weeks after the made the Crime Lab or evaluations conducting possibly the court desired to rule other tests on their murder. Because recognize, apparently, suppress it ruled own. We on the motion to before case, State’s make hereinabove set forth and which form the basis of the will, for impossible and his coun- Defendant on this indictment reasons, these for the Defendant rights pro- adequately prepare a defense to violate his under the due sel to charges against cess clause of the Fifth and Fourteenth the Defendant. to the Constitution and will Amendments deny statutory protection equal of the laws under such or other The absence Amendment of the Constitu- in the State of and the absence of the Fourteenth law any procedure whereby the Court re- of the United States. can be tion WHEREFORE, indigent quired to an de- Defendant moves the Court to make available independent appoint private, crimi- fendant the same basic resources which are nologist ap- purpose and assist the for the of scien- to advise available to the State Attorney expert testimony pointed fense, de- in the conduct of his tific evaluation an constitute appoint- right procedural and in the absence of such of Defendant’s a violation ment, inquire prays that the Court process under the Fifth and Four- Defendant due of law abatement, taking plea in evi- into this his teenth Amendments to the Constitution questions herein if neces- re- dence on the raised A fundamental fairness United States. against sary, the De- and that the indictment quired and Fourteenth Amend- the Fifth charges against quashed impossible and the are fendant ments to the Constitution dismissed. the reasons the Defendant be in Defendant's case for fulfill right this, statutory there’s no Several but minutes after this discussion court argue that an took to the Court absence of a brief recess. When reconvened, statutory right expert to obtain an defense such a counsel made following statement: procedure where can witness or we have us, this made available constitutes BY Honor, MR. FREEMAN: Your procedural process and due could I put something violations else in the record is a get that the absence of this before constitution- we to the Brady motion? question al and that indictment connection with motion appoint a criminologist should be abated because there’s no stat- which the Court al- has overruled, ready I utory arrangement where this didn’t can be have letter me, granted.15 have didn’t it in front of me the time but the District Attorney was BY THE Is COURT: that all on that stating that there wasn’t anybody avail- motion? able appointed. that could be just I Yes, sir, BY MR. FREEMAN: it’s all wanted place to state our dowe motion, pretty set in the well out I be- somebody available, that’s Dr. lieve, Your Honor. Woodford, Drive, W.L. 585 Lakeshore BY THE Does the COURT: State have E., Atlanta, who, think, N. we anything you say else want to charge approximately $1500.00 to make response particular to this motion? some of perform these tests and some of No, sir, BY MR. WALDREP: Your this analyses, so we do have someone course, Honor. Of the State has available, that’s if the Court had fit seen people witnesses that are to appropriate money just the for I it. these employed fields to do these investi- put wanted to that the record. gations. They actually represent— don’t Petitioner never renewed his for motion for defendant, work us or work the appointment an expert prior either they just analyze these items when during In determining trial. they’re sent to them at the State Crime petitioner’s merits of request Laboratory are, and whatever the results assistance, therefore, we only consider say, course, that's what are. We facts Judge available to May Sosebee on that he right doesn’t have to have petitioner’s when he ruled on motion for appointed someone else actually, and appointment expert. of an you really when look the substance of it, I don’t know who Court would The Judge facts available to Sosebee appoint something to do like that and the came from four sources: the transcript of only people that the State to do those petitioner’s January 1977 committal type things people are the at the Crime hearing Judge Whitmire; before the tran- Laboratory. script testimony of the Sheriff gave Bittick

BY THE COURT: The Court will over- at Roosevelt hearing- Green’s committal rule entirety. that motion its held the day;16 same present- apparent It is colloquy peti- right from this and ants a govern- to obtain witnesses at appointment expense, tioner’s motion nothing for the ment Georgia a crimi- we find case law, nologist expert, supra nothing, other and cited see note have been that that would precluded judge have impression granting defense counsel was under from precluded such law assistance had concluded granting the court that not to do from so probability would create a reasonable process his motion even if the due clause of petitioner would not receive a required fair trial. grant- fourteenth amendment that it be may explain This ed. counsel’s failure to make Although Judge petition- Whitmire held both showing the sort of necessary. we find hearings, er's and Green’s Roosevelt committal We are judge indicated, convinced the trial supra as we have see note 12 and petitioner would have provision denied text, accompanying transcript petitioner’s expert assistance had made a hearing counsel more sub- transcript and the of Sheriff Bittick's stantial Although need. hearing part demonstration of Geor- at Green’s were made a gia statutory give indigent Judge law does not defend- of the record before Sosebee. We there- hearing the court that certain undescribed tests May suppression ed at the Sosebee; by experts may at the crime lab petitioner’s performed Judge and before peti- a have the State’s claim that appointment of buttressed motion for the written present rape when the and mur- expert. The tran- tioner or other criminologist place. hearing de- der took script petitioner’s committal Al- and how Ms. murder scene scribed the sum, Judge the information before testimony of It also contained len died. from these four sources indicated Sosebee witness, Thomas Pas- key prosecution first, State, following: on the petitioner had told by, related what who petitioner’s admissions to Thomas basis Majik Market robbery him about Pasby, could establish that rape, murder of kidnapping, and the Majik Green robbed the Market Roosevelt Bit- transcript of Sheriff Ms. Allen. kidnapped, raped, and murdered Ms. Linda Bar- testimony disclosed that tick’s second, Allen; per- the hair tests ton, serologist, seminal fluid had tested placed Linda Barton Green at formed body, the victim’s removed from murder, scene of the but that the tests person possessing had come from fluid performed on seminal fluid taken she blood, that Roosevelt Green type A body cast some doubt on the victim’s Barton B It also revealed that type blood. victim;19 third, raped he had whether hair that Roosevelt Green’s had determined lab, someone at the state crime com- police gloves some present on plaster footprints at the paring casts May murder scene.17 found at the murder scene with shoes later found Judge hearing informed Sose- suppression bedroom, testify that a petitioner’s victim’s footprints found near the bee that petitioner’s may person wearing shoes like by shoes to have made body appeared Ms. Allen was present have been when found in bed- similar to those The information did not dis- murdered. police searched his resi- room when the close, spec- counsel did not about, dence. peti- connection ulate between saliva, blood, and hair tioner’s motion and the statements Petitioner’s nor did counsel indicate question; crimes in support motion18 lawyer made crime lab tests the state what Judge little addition- provided Sosebee with Judge samples. All conducted on those the case and information about State’s al lawyer petitioner’s that knew was Sosebee expert petitioner’s need for assistance. to review expert of some kind wanted an read, the Liberally the motion informed may have the state crime lab any tests had collected various court that the State unspecified to conduct an performed and scene, from the crime the items of evidence declined to of tests that counsel number home, body petitioner’s and the petitioner’s describe. (blood, saliva, hair) of this and that some that, April three note the do may have examined at We attorney presented days petitioner’s informed before crime lab. The motion also state May hearing hearing itself assume, May the although silent on the of the record is fore point, —the hearing Judge April tran- inform the court had read these Sosebee —to petitioner’s urge re- scripts by the time he ruled on matters and to the court about these quest expert expert; yet, for assistance. appoint he remained silent. an when may been mistaken have 17. Sheriff Bittick fluid taken Barton’s test of the seminal 19. Linda hearing that committal he testified at Green’s body that the fluid victim’s indicated from the trial, At made this determination. Barton had type A blood. Green from a male with came rather, testimony; Warren gave she no such blood; thus, type fluid she examined B had Tillman, explained microanalyst, the results Green, how- him. not have come from could ever, hair sam- performed on the various of the tests victim; raped the have could still ples in the case. fluid whether seminal not show record does opportunities attorney two 18. Petitioner’s did not test. that Barton existed ruling Judge at the conclusion prior to Sosebee’s appointment expert requested. May his motion for an On after the court had Sosebee, Judge prosecutor gave argument heard of counsel and ruled on reports motion, copies of the he had received from petitioner’s defense counsel did of- lab and names of the the state crime expert fer the name who “was avail- experts reports had authored who appointed,” able but did not inform prosecution. Inexplic- testify for the would person’s the court of that expertise or what ably, petitioner’s counsel never informed he could have contributed to the defense. Judge reports what those disclosed Sosebee motion, Petitioner’s considered expertise persons or the areas light of Judge the record before Sosebee and, presumably, them who had made dispositive when he made his ruling, failed trial. testify would Counsel also failed to create probability a reasonable that ex- Judge whether he had inform Sosebee pert necessary assistance was to the de- experts any State’s interviewed the about fense and without peti- such assistance not, they performed and, if may tests tioner’s trial would be rendered unfair. would such whether be amenable to accordingly We hold trial court did thorough study A interviews. the crime denying petitioner’s err in not motion. reports with the lab and interviews authors Having concluded that the trial did court reports of the have eliminated denying petitioner’s not err in motion very expert need for assistance. At the appointment expert, of an we need not least, if defense counsel had been more determine whether at trial fail- study diligent specific and more requested ure to obtain the assistance motion, Judge Sosebee would have been deprived him ability fact of the present fully apprised prosecution’s more of the Thus, his defense.21 we affirm the district need, any, case and of the defense’s rejection court’s process due expert assistance. claim. petitioner also We observe did not expert advise court about the kind of III. expert he desired or role the merely play. requested The motion supra, I.A., As we Part have indicated in appoint “criminologist court other key or the State’s Pasby. witness was Thomas clear, however, fact, It is witness.” Pasby’s without testimony, it is petitioner did not desire a “criminologist”20 gone doubtful whether the case would have experts but instead jury. wanted eyewitnesses There were no expertise whose matched robbery Majik each Market to course, experts. the State’s Of kidnapping, rape, Allen, because and murder of Ms. did inform physical expert opin- about and the evidence and expertise prosecution State’s witness- presented ion es, the exactly merely suggested petitioner court could have known could type expert petitioner what of or of perpetrator needed have been a these crimes.22 criminologist person A specializes petitioner present is a opportunity who in a reasonable to criminology. Criminology is defined as "the his case. study phenome- scientific of crime aas social non, criminals, Pasby’s investigation, testimony, 22. Without criminal State’s case and penal purely petitioner was treatment." circumstantial: made an Webster's Third Inter- New (1976). incriminating Dictionary Johnny national statement to 537 Johnson days prior robbery, petitioner three to the and trial, friends, petitioner's attorney nothing At petitioner said were and seen Green in indicating the court that he needed assist- Green Cochran with on the afternoon of the robbery. expert testimony ance to experts, relating cross-examine the State’s War- The to the physical ren Linda supra petitioner’s Tillman and note Barton. See evidence recovered from fact, effectively comprehensively prove 15. In he and home and from the crime scene did not experts petitioner length. participant cross-examined these at It can was a in the crimes. testimony be inferred from counsel’s conduct that the trial of Warren Tillman established appoint deny design court’s refusal to did not that shoes similar in size tread and stronger case prosecutor’s had a much The State consider is now handling Green; record, Pasby’s especially prior he had been against Roosevelt criminal court, in Carolina with caught South red-handed re- petitioner’s trial when the in car, weapon and the victim’s murder petitioner’s sponse Brady Giglio him in Coch- placed and several witnesses motions, disclose that instructed day the crimes were committed. on the ran any promises may the State record he explained have how ob- Green Pasby testimony. made to for his weapon possession of the murder tained car, duty pro A a why prosecutor Ms. Allen’s he was Cochran has crime, why peti- day of the had an accused with all evidence in the vide Pasby’s telephone numbers possession materially tioner’s state’s favorable to Pasby’s possession, why he called his Brady Mary accused’s defense. v. in an he was arrested effort home after 83, 87, land, S.Ct. 1196- U.S. jail was in inform that he (1963). prosecutor’s A 10 L.Ed.2d 215 But was unavail- Carolina. Green South produce such may failure to evidence ne witness; prosecution he was able “irrespective good cessitate retrial having escaped from the Monroe fugitive, prosecution.” or bad faith faith Id. County jail prior to indictment. Green’s his 87, 83 at 1197. When the defend depended on his as a witness availability guilt innocence turn on the ant’s willingness his being apprehended and on witness, reliability prosecutor’s testify. affecting of evidence nondisclosure only Pasby witness State credibility of the witness falls within this explain how the crimes were Illinois, who could Napue general rule. See Relating peti- the admissions committed. 264, 269, 1173, 1177,3 L.Ed.2d U.S. 79 S.Ct. January him on tioner made to (1959). by the state to Promises made past Pasby jury told the about exchange his a witness Green, petitioner and how association with credibility of directly to the the wit relate kid- Majik Market and Green robbed prosecutor duty A has disclose ness. Allen, rape napped and about Ms. any promises made the state prosecu- The remainder of the murder. prosecution exchange to a witness principally to cor- tion’s case was devoted States, Giglio testimony. v. United it, testimony; roborating Pasby’s none 31 L.Ed.2d 104 405 U.S. 92 S.Ct. placed independently circumstantially, when the (1972). especially true This is time dur- petitioner with the victim testimony of the witness is essential to rape, robbery, kidnapping, or mur- ing the Wainwright, case. Haber v. state’s See certainty required the crim- der with the (11th Cir.1985). 1520, 1523 756 F.2d law. inal prosecu Petitioner claims that conviction, the To obtain duty Brady/Giglio by de breached his tor obviously prosecutor had to convince withholding liberately from the defense Pasby’s testimony. To ac- accept Pasby's portions of Thomas crimi material task, prosecutor had to complish this which, light if record considered nal record, Pasby’s which confront criminal Pasby’s record the portions criminal credibility posed a threat to substantial disclose, suggest that prosecutor did exploited by de- fully comprehended and immunity pros- given fense counsel. basis of the claim we had either been body Ms. petitioner’s produced found in the home the semen Puppy” shoes found in “Hush a shown to be secretor Allen. Petitioner was scene. Tillman’s testi- were worn at crime blood, type on concerning but Barton admitted mony, seized with A hairs found on towel home, approximately 40% petitioner’s cross-examination that little in the search of added approxi- population type and testimony relating has A blood and his the State’s case mately are individuals secretors. substantially 90% of these discredited. The tes- evidence was timony Thus, conclusively testimony Barton, did not serologist, Barton’s estab- of Linda petitioner raped Ms. Allen. prove that type A blood lished a male "secretor” with that Pasby ecution the State his or was principal the State’s witness thought given immunity. such he had been at the hearing. Pasby committal began his rejected claim The district court testimony by explaining he that been had evidentiary hearing. The court without an (which transported hearing was be- evidentiary hearing concluded that was ing Forsyth, held in County the Monroe because the unnecessary state habeas seat) (in Bleckley County jail full, already given petitioner a court had Cochran) he where had been held for some fair, hearing and on claim adequate his and days twenty charge on by taking of theft promises that the State had made found no (involving rifle, hunting 30.06 caliber Pasby testimony. finding, his That type same of rifle used murder Ms. court, according to the district was entitled Allen).26 (1982); See O.C.G.A. 16-8-2 see § presumption to a of correctness under 28 Pasby also proceeded note then infra 2254(d)(1982) peti- and U.S.C. foreclosed § that, January 1, to tell court on while petitioner tioner’s that claim. We conclude petitioner he driving and were from Coch- full, fair, adequate did receive and petitioner ran to Hawkinsville so that court; hearing in the state habeas accord- thinking examine an automobile he was ingly, findings carry its presump- of fact no purchasing, petitioner confessed to him following tion of As the correctness.23 dis- that on December he and Green clear, cussion makes in order to resolve the Market, Majik robbed the kidnapped and claim, petitioner’s Brady/Giglio merits of raped Allen, Ms. and that he her to shot evidentiary hearing must be held. death with a 30.06 rifle. At the conclusion importance Pasby’s The criminal Pasby’s examination, direct the district to petitioner’s record defense first became Pasby attorney asked whether had been apparent “committal hear- threat, to testify promise induced 24,1977.24 ing” January Supe- held on he replied that he had not. rior Court of County Monroe convened the cross-examination, Pasby On revealed hearing to determine whether there was since arrest and confinement probable petitioner cause bind over to Bleckley County jail January he had County grand charges Monroe questioned extensively the Bleck- participated that he rape and murder (in ley County juris- sheriff’s office whose County of Ms. Allen. Because Monroe is in the Majik robbery diction Market Circuit, and the the Flint Judicial the district attor- occurred), kidnapping Allen had circuit,25 Smith, the Mon- ney Byron E. (in assistant, County roe juris- sheriff’s office Waldrep, Kenneth whose presented rape occurred), diction the court-appointed State’s case. Two and murder had at- torneys, Welch, Jr., Meadows, A.J. and Rod Investigation Bureau of represented petitioner. (GBI) (which jurisdiction over all Circuit, findings presumed attorney 23. State fact court cannot therefore the district appears to be if it correct attorney prosecuted assistant district who full, fair, adequate "did not receive a hear- judge presided case and the who at trial were ing proceeding." in the State 28 U.S.C. from the Flint Judicial Circuit. 2254(d)(6) (1982). § hearing, including Pasby, 26. No one at the dis- supra 24. See note 11. object alleged that a was closed rifle judicial Georgia; however, 25. There are circuits suggests, prior theft. record composed each circuit is of one or more coun- object to trial defense counsel learned judicial ties. Each circuit has an elected district rifle, hunting 30.06 like one caliber attorney prosecutes felony who all cases murder, used to commit the Allen and that the brought Similarly, within the circuit. each cir- police initially thought rifle was the judges cuit has one more who sit in the weapon. Subsequent investigation dis- murder superior up courts the counties that make following seized Green's closed arrest, rifle judicial circuit. Petitioner was tried the Su- charged not the rifle perior County Court Monroe because the stealing, was used kill victim. rape Allen and murder occurred in Monroe County. County Monroe is in the Flint Judicial

721 events, prosecutor may crimes) and law enforcement official December about the tape Pasby had record- have questioning made to to induce him testi- that the officers Pasby fy against petitioner.27 that when superior admitted The ed. having him he denied initially questioned February heard the motion on 11 and He did not events. knowledge of those any lawyers 1977. Petitioner’s árgued that them of down and tell break they entitled were such information un- said, United, he January on to him confession States, der Giglio v. 405 U.S. interrogation, after he subsequent until (1972), L.Ed.2d 104 and in his it would be best inter- concluded that, depending prosecutor’s on the disclo- cooperate. est to sures, might they ask court to recon- hearing. They sug- vene to learn more about the the committal In an effort surrounding Pasby’s prosecutor gested Pasby’s deci- circumstances run cooperate police, the with the de- through the sion name “law enforcement com- Bleckley County sheriff called the fense prosecutor, in puter.” response, The ar- office, He confirmed that the stand. gued required he was not to conduct a office, and the County Monroe sheriff’s Pasby’s record crimi- search determine the Al- interrogated Pasby had about GBI record, adding knowledge nal that to his occasions, perhaps murder on several len Pasby had no record other than the theft six, tape each many as and had recorded as by taking charge Pasby peti- alluded to at Pasby He did not dis- added that session. hearing. tioner’s committal The court Green’s involvement close and prosecutor ruled did have to crimes until the second or third inter- in the record; rather, Pasby’s search for criminal rogation. the conclusion of the commit- At gave if he simply it would be sufficient court, hearing, on principally tal copies any defense counsel documents testimony, probable found Pasby’s basis possession indicating he had in custody for the petitioner cause to hold Pasby had been arrested convicted. pending of Ms. Allen rape and murder prosecutor produced none. investigation. jury’s grand February On the Monroe Coun- attorneys were concerned Petitioner’s grand petitioner ty jury indicted and Green petitioner Pasby against testified had Ms. A rape and murder of Allen. hearing at the committal because later, petitioner’s attorneys days few prosecutor: a deal made with the State court for leave to withdraw for moved the drop pending taking theft granted their personal reasons. The court Bleckley County charge and withhold the appointed Franklin Free- motion and W. Pasby may prosecution any other crimes man, represent petitioner. Jr. to Pasby against have committed testified 15,1977, peti- April On Freeman renewed hearing at his committal require the dis- previous tioner’s motion to consequently trial. moved then at Counsel Pasby’s full crimi- attorney trict disclose County Superior of Monroe any deals the nal record and State directing attorney order the district obtain his testi- divulge complete Pasby’s criminal made record court to any promises mony. he or also moved the other state Freeman requests request Pasby. We therefore focus 27. Counsel made this in the context of a seeking production Pasby. written motion State’s relate possession. in its various information The re- Giglio quest referring for criminal records and material Presumably, counsel encompassed general made in terms and Center which main- Information GBI's Crime everyone peti- prosecutor intended to call and convictions. tains of arrests records hearings February trial. held on provided tioner’s At to the Center information 15, 1977, however, petition- April Investigation "Georgia 15 and Bureau Federal particularly Contributors," counsel that he was er's stressed Geor- Fingerprint which includes obtaining Pasby’s criminal record gia departments interested offices. police and sheriffs prosecutors. of a deal between State to state are available These records produce tape use, to require prosecutor you expect including ness that thereof, transcripts recordings, and the any charges pend- and all which be the sheriff’s offices of Mon- all interviews ing officially and which have not been Bleckley the GBI had roe and Counties disposed by plea, or otherwise? Pasby any prose- other conducted with BY MR. SMITH: Your please, Honor witness, contending that consti- cution only I one that can think of is the superior Brady tuted material. court charged against crime that’s Thomas argument on the motion the heard same [i.e., Pasby charge pending the rifle theft day. in Bleckley County]. I’m aware of that. motions, presenting his Freeman BY THE COURT: Is only— that the require asked the court district attor- BY only MR. SMITH: I That’s the one Smith, carrying out his ney, Brady/Gig- know about. duty, disclose whether the lio State had BY THE only COURT: Is that granted Pasby immunity prosecution from person you might that use? Mr. Free- court, any agreeing offense. man, you are familiar with what he’s requested entitled to the dis- was about, talking charge against Mr. closure, attorney asked district whether Pasby? any promises Pasby had made State BY MR. FREEMAN: I’m familiar that cooperation. responded for his Smith there is charge. I’m not familiar had made none. office Freeman was with— response with Smith’s dissatisfied BY THE Do you COURT: know where require asked the court to Smith to disclose it’s pending? Pasby any promises by any made other BY MR. I FREEMAN: understand prosecutor by any law enforcement offi- pending that it’s in the Oconee Judicial cial. Freeman reminded the court Circuit. Bleckley County, Pasby facing a felo- ny charge, taking, theft by which was be- BY THE Bleckley COURT: County? ing prosecuted by attorney the district BY MR. FREEMAN: I assume that Circuit, Oconee Judicial and that Bleckley County it’s in I but couldn’t Pasby’s cooperation was concerned that affirmatively. state that might with Smith’s office an effect Smith, BY THE you COURT: Mr. do charge. disposition of that Smith told county know what it’s in? speak court that he could not for the Honor, BY MR. I SMITH: Your attorney of district the Oconee Judicial Cir- under the impression that it was in Haw- say spoken cuit. did Smith that he had I’m kinsville but Bleckley [the not— Bleckley County sheriff and that the County is in I keep Court. can’t sheriff] sheriff had assured had not those counties in my mind. been granted immunity prosecution BY THE If COURT: it’s in Hawkins- by taking charge. the theft The court ville, Well, County. that's Pulaski agreed with Smith that he did have to particular seems to request me that this attorney consult with the for the district as to this can witness be resolved and Circuit, concluding Oconee Judicial says Mr. Smith any he's not aware of compliance Smith would with Bra- against any person, record I other so will dy holdings if, upon Giglio learning having consider that as been answered. any promises Pasby, he disclosed them counsel. The court and the The court then turned to the defense prosecutor concerning ended the discussion request prosecutor produce Pasby’s the status of criminal record tape recordings transcripts the following colloquy: interrogation of prosecution State's wit- right, prosecutor It

BY THE COURT: All let me ask nesses. advised the Smith, Mr. does the State have defendant was Brady infor- entitled under all possession mation of a criminal record of wit- the State’s material- Petitioner’s cutor informed the that he could not ly favorable to defense. to tapes, to listen the produce the court the because counsel asked he did not have this determi- to make tapes had, in and said, camera he them. All that he were sum- ruling its on The court deferred nation. tapes.29 some the maries of of He further prosecutor to the to request allow counsel’s represented only that one of them consti- material, Brady and file for examine his Brady given tuted material and that he had hearing concluded. the summary copy of that to defense coun- 4, 1977, attorney district May On sel.30 response a formal to Bra-

filed agreed prosecutor court with The asserting that request, dy Brady require produce that did not him to tape has no re- for the State [c]ounsel posses- material that was not his actual recordings cordings transcripts of of point, sion. At this the court announced persons concern- various interviews [with that it would examine in the mate- camera investigation Allen mur- ing the prosecutor posses- in his rial the did have have to file. reason be- its We der] sion, “file,” and took a brief recess for taped. interviews were lieve that some purpose. At the conclusion of ex- its However, tapes probably are most these amination, prosecutor the court ordered the law en- possession in the of various provide to the defense with seven addition- agencies. forcement al summaries of interviews dur- conducted prosecu- response also stated The ing investigation.31 murder court with a provided tor had defense counsel prosecutor provide also ordered the to de- by taking description charge, the theft fense Pasby counsel with statement had rifle, involving theft a 30.06 caliber given special agent to a of the GBI. The Bleckley County, pending against Pasby that, although court ruled the statement provide any additional informa- and petitioner, incriminated it im- constituted concerning received the crim- tion State Pasby peachment evidence made because prosecution witness. any inal record only agent after the statement warned day, That same the court resumed hear- aiding he be viewed as and request that ing on defense counsel’s Allen abetting the murder Ms. if tapes to the in camera to listen information it from the concealed about they contained informa- determine whether prose- to the accused. The authorities.32 tion favorable 29. what want. I incrim- does disclose the exact num- This is we realize record not or, you way. you not out exception inate some I’m after ber of these summaries with the hang trying you text, rifle. to for the I’m not what interviews were in- noted in the way, wanting shape I’m Further, or form. prosecutor stated that it volved. was'possible wanting to know if know about that rifle. I’m you taped conversa- that not all knowledge reference to had tions been summarized. had you I about it was stolen. know know where you rifle but I’d like to know knew 30. This consisted statement made Mrs. I’d like know where it stolen. also Beverly Mays special agent of the GBI Ann to a you anything else have in reference to this. January The substance on you. going asking all I’m I’m not you. That’s not disclosed in the record. It is statement is try put pressure to—to wanting on I’m tape record- unclear whether statement was you, trying to sit bullshit I’m here ed. get wanting nothing I but truth. can accessory know is? You what hardnosed. 31. The record only reveals the names of two of is, aiding abbetting That [sic]. That is persons were whose interview summaries law, aiding according is called produced pursuant court’s directive. It is accessory abetting. You have an before what information the unclear from record fact, during, you accessory you have an contained or in what manner summaries accessory fall into after. You could have an This, were beneficial to the defendant. how- Refusing give categories. in- one of these ever, petitioner’s Brady/Giglio is not relevant to you prove that that we can formation prior claim. you questioning an acces- to this makes route, go you that’s sory. want to If 32. The statement reads as aiding abbetting follows: That makes [sic]. called examination, June ny went to direct consisting Petitioner one days. Pasby The trial four testified page, missing lasted transcript from the relating prosecution, for the what we petitioner’s trial. According I.A., supra. Shortly after recited in Part attorney, Pasby habeas told the stand, calling Pasby to the witness a one-year probation he received sentence ar- attorney asked about his district as a result of guilty plea.34 Bleckley rest confinement Coun- cross-examination, In his petitioner's at- January stealing jail on ty torney no attempt impeach Pasby made rifle, inquired 30.06 caliber Instead, with his criminal record. he charge. Pasby that said that disposition of sought Pasby’s story pe- to discredit about dropped, and charge the had been that by titioner’s confession to him getting Pas- Bleckley released from the Coun- had been by to admit police initially that when the prove the State could not its ty jail because questioned him any knowledge he denied of case.33 by the Allen murder suggesting that examining Pasby After about the stolen Pasby petitioner’s concocted af- confession charge, prosecutor Pasby the had re- rifle agent ter GBI threatened him with told him on late detail what prosecution aiding for abetting January concerning robbery of murder cooperate. if he refused to Coun- Majik kidnapping, rape, Market and pursued sel closing the same theme his Then, of Allen. and murder Ms. at the argument jury, arguing to the Pasby that examination, conclusion of his direct Green peti- committed the murder while to prosecutor returned the matter of Pas- tioner sleeping was home off drinking a record, asking Pasby by’s criminal whether spree. persuaded, was not how- felony. he had ever been convicted of a ever, and apparently giving Pasby’s testi- Pasby twice; “I to replied: went court once mony credence, full petitioner guilty found driving I li- for DUI and without a went charged. as cense____ I taking went once theft appeal In his direct to the Court involving a people ... case three and some Georgia, petitioner of argued that he was rings something.” $300 and When [worth] entitled to a new trial because the prosecutor State asked him whether he went bargain Pasby made with offense, for his testimo- pled guilty to trial or to the theft ny and Pasby “I failed to disclose that plea guilty.” stated: entered a fact to his Precisely Pasby attorney. rejected immediately argument said The court his what record, thereafter is not disclosed because no the record contained Pasby’s agreement; because the remainder of testimo- of such an all it that contained you punishment Pasby liable to receive the same to junkyard that Macon, had sold man at person actually pulls trigger rifle, who Georgia. retrieving After actually raped girl kidnapped who or who weap- which he then believed on, be the murder Now, girl. strictly up you. that's I’m 26, supra Pasby see note the sheriff arrested wanting way. not to be hardnosed that All sheriff, January According Pasby on to the doing trying I'm you, to sit down with requested insisted he was innocent and Thomas, you ask tell me the truth junkyard sheriff take him to the in Macon to give information, all, maybe me the that’s buyer purported identify see him. right clean the of it rest here. eventually deputy sheriff sent to Macon appears It from this statement that the sum- photographs Pasby. Although his testi- mary Pasby’s actually interview was a tran- unclear, mony is the sheriff indicated that the Thus, script of interview. the State’s asser- Pasby, prosecute not State decided because of response petitioner’s tion its motion for purported buyer’s inability identify him. Brady that its file material did not contain transcripts might of recorded interviews during made 34. Counsel this statement a hear- have been accurate. ing Superior County before the Court of Butts Bleckley County 33. The sheriffs petitioner’s arguing petition in on first habeas petitioner’s Pasby’s trial corroborated statement. deliberately prosecutor had withheld 1, January The sheriff testified that around Brady/Giglio information from the defense. 1977, police learned from an informant Pasby rifle, weapon, had the murder a 30.06 information, allegation Armed with this Kates amend- deal bald counsel’s State, 240 petitioner’s Ga. petition allege Moore v. ed habeas had been made. 6, denied, 1, 812, 807, cert. 243 S.E.2d that this information was to the material 268, L.Ed.2d 249 U.S. Pasby’s credibility issue (1978). attorney’s prior district failure to disclose it principles trial violated the supreme argument in the Having lost alleged Kates Brady. further that Pas- court, represented by a new at- petitioner, Kates, grant immunity, turned torney, K. had testified under a Robert County Butts Court of habeas Superior whereby agreed prosecute the State not to corpus relief.35 On March charge or him on the stolen rifle to revoke hearing on his evidentiary held probation if Pasby petition- incriminated hearing, Kates claims.36 Prior er at trial. probation at the learned evidentiary hearing the March 26 When trial, having been sen- time began, petitioner’s counsel informed the Superior plea guilty by on a tenced subpoenaed Mar- court that he Alan County Bleckley November chant, probation of chief officer the Oconee by taking, a felony of theft Circuit, along Pasby’s proba- Judicial worth of charge involving the theft of $300 file, to Mar- tion and that he intended ask probation of- rings. Pasby’s located Kates file. chant to disclose the contents of the Baker, ficer, had left the Robert E. who State, being represented by now an prior probation service attorney general, objected assistant state Baker, moved to Florida. From Kates and contending Pasby’s the procedure, that day January that on discovered probation was Pas- file confidential because Pasby’s and in the arrest confinement after by Georgia’s under had been sentenced rifle Bleckley County jail on the stolen act, first 42-8-60 offender O.C.G.A. § “delinquency made a charge, Baker out (1985),37 prohibited the and that the act proba- recommending Pasby’s report,” petition- contents disclosure of file’s requesting his sentenc- tion be revoked and attorney. er’s O.C.G.A. 42-8-65 proceed- See ing judge § to initiate revocation (1985).38 agreed Pasby’s his arrest. The court ing by issuing a warrant for during period probation, Actually, attorney crime of filed habeas another 35. another may adjudication guilt attorney subsequently petition. withdrew enter an of That the court case, appearance provided by as law. proceed and Kates filed his as from otherwise attorney. may of person No himself this article avail than one occasion. more presented in his Moore 23 claims amended 36. validity petition. They questioned of both 42-8-65(a) (1985) provides in rele- § O.C.G.A. and death his convictions sentences. part: vant probation discharge sen- of [of record (1985) [T]he provides fol- O.C.G.A. 42-8-60 as § imposed act] the first offender under tence lows: Attorney solely Gener- released shall be al, prior 42-8-60. Probation of first offenders attorney, a state district a solicitor of adjudication guilt; of effect of Corrections, court, Department the of- of probation of or violation of terms county probation system of a state of a or fice conviction for another crime. county probation system state or of another (a) Upon plea guilty a verdict or of or States, office State or the United an of the of contendere, plea adjudi- of nolo but before Paroles, an of Pardons and office Board pardons guilt, of who cation in the case of a defendant paroles state division of another felony, previously has not been of a convicted States, prosecuting attor- or United or a may, entering judgment without the court States, ney another or of the United state guilt and with the consent of the defendant: probation system upon by certification such (1) place proceedings further Defer pending law; attorney there prosecuting or are by probation provided as defendant jurisdiction competent criminal a court or discharged against any person under charges (2) to a term of Sentence defendant agency, No law enforce- article. such provided by as confinement law. any infor- agency, release (b) or court Upon ment violation the defendant of the guilt regarding adjudication un- probation upon mation terms of a conviction probation petition, again alleged file was confidential and sus- the state objection to prosecutor tained the State’s the whole- breached his Brady/Giglio duty proposed by petitioner’s sale disclosure withholding from defense counsel mate- time, same counsel. At the court rec- portions rial Pasby’s criminal record ognized that the State could not use the Pasby prosecutorial received conces- confidentiality requirement of the first of- sions the State in return his testi- avoiding fender act as a means its duties mony. He evidentiary asked for an hear- specifically, under the those ing prove so that he could allegations. Constitution — Brady and Giglio defined ruled attorney The state general, answering —and was entitled to be informed the petition, evidentiary contended that an anything in file Pasby’s material to hearing unnecessary because the state indicating credibility that the State had full, given petitioner habeas court had Pasby testimony made a deal with for his fair, adequate hearing, finding its against petitioner. suggested The State that the promises State made no Pasby examine the file in camera. for his presumptively cor- The court did so and announced that noth- 2254(d) (1982). rect. See 28 U.S.C. § ing in file indicated that the State made answer, Based on the State’s to which the promises testimony.39 for his of petitioner’s records criminal trial and any- Counsel then asked the court whether corpus state proceedings habeas —with thing disposition in the file revealed exception Pasby’s probation sealed file— Pasby’s probation proceeding, revocation exhibits,41 were annexed the magistrate Superior which had been initiated when the to whom the case had been referred con- Bleckley County Court of issued the war- cluded that the state habeas court accorded 5, Pasby’s January rant for arrest on 1977. full, petitioner fair, adequate hearing question, The court refused to answer the on pursuant his claim. Acting to section implying that the first offender act’s confi- 2254(d), magistrate adopted the state prohibited dentiality provision it from re- finding promises court’s that no had been vealing placed that information. The court Pasby made to for testimony. his The Pasby’s probation file under seal and made magistrate accordingly recommended in his part it pro- of the record of the habeas report to the district deny court that it ceeding. At the conclusion of hearing, petitioner’s Brady/Giglio claim the ba- petitioner’s court denied Brady/Giglio sis record, state court habeas with- Georgia, claim. Court evidentiary out an hearing. Petitioner ob- denying petitioner’s application for a certif- jected magistrate’s to the report and rec- of probable appeal, icate cause declined ommendation, attaching to objection his ruling.40 to review that represented what he copy to be a of Pas- brought by’s Petitioner thereafter probation this habeas file. Petitioner asked corpus action in the district court. In his district court to examine the file except der pro- this article disclose the fact that Pasby’s The State should have included right exercised defendant has his or her file bation in the exhibits filed with its answer first offender treatment under law part because file was of the record of the person discharged. and that such has been proceeding state court habeas and was obvious- ly petitioner's Brady/Giglio relevant claim. proba- 39. The court did not address whether the 5, Answer; Contents, Governing See Rule Rules tion file otherwise contained information that Cases, (1982). Section 2254 28 U.S.C. fol. § might Pasby’s credibility have affected before court, reviewing The district record of the petitioner’s jury. proceedings (upon state habeas which it based supreme unreported. court’s decision is reject petitioner's Brady/Giglio its decision to supreme The State makes no claim that claim), should have noted the absence of Pas- probable court refused to issue certificate of 5, and, by’s probation pursuant file to Rule ground petitioner, having cause on the produced ordered that the sealed file be Brady/Giglio appeal, raised his claim on direct part made record in the district court. precluded presenting to the habeas court on collateral attack. 1976, using Moss, Pasby, his the name evidentiary hearing on Bra- Thomas convene surname,44 denied The district court pled his true presumably guilty claim. dy/Giglio evidentiary hear- request for petitioner’s charge Superior to the and, petitioner’s alluding to ing without and, County Bleckley because it was file, probation objection or to the attached offense, felony first the court sentenced report and denied magistrate’s adopted act, the first him under offender O.C.G.A. relief. (1985).45This act 42-8-60 authorized § file, pur- for Pasby’s probation which court, adjudicating Pasby’s guilt, without genu- to be appeal we assume poses of this “[djefer proceedings place further background of ine,42 against the viewed [Pasby] probation ... [to] [s]entence suggests prosecution, criminal as provided to a term confinement [him] Pasby called that when the State i.e., law,” prison for a by up term to ten trial, pros- stand at witness provided years, penalty the maximum withholding from the defense ecutor was committing law for the offense of theft concerning Pasby’s information critical taking. Pasby, The court sentenced as information, if fully record. Such criminal Moss, to prison, twelve months in Thomas exploited by defense comprehended and sentence, suspended the execution of that counsel, led con- might placed probation him on term of against petition- Pasby testified clude year, one until November 1977. The him given had immuni- the State er because Pasby’s probation required, conditions prosecution from all because ty among things, pe- other that he violate no given him such im- had thought State laws, “persons nal that he avoid ... of testimony implicating munity, and that his character,” disreputable and that he main- was thus not the Allen murder good If “general tain behavior.”46 worthy of belief. by any failed to abide conditions According contained in to the documents it, probation, the revoke file, Pasby probation was arrested on adjudge guilty the theft offense committing the felo- November “proceed pled guilty, which he taking, 16- ny of theft see O.C.G.A. § provided by law.” O.C.G.A. otherwise (1982);43 allegedly he had stolen some 8-2 42-8-60(b) (1985).47 addition, if he rings November valued at On $300. § 42. We assume that genuine opinion probation Moss. We refer to him this the file is Thomas object Pasby he is its authentici- as because that is how referred to because the State did not not, however, record, exception probation ty do the in the district court. We with Among complete. file is other assume that the file. any things, it not contain evidence of the does Bleckley County's disposition Superior scheme, Court of 45. Under this statutory once offend- probation proceeding revocation of the proba- completes er his sentence—whether on 5, 1977, January when it is- on court initiated “discharged prison tion without or in —he Pasby’s arrest. sued a warrant for guilt,” adjudication § court O.C.G.A. 42-8-62 (1985), consequently arrest, and does suffer 43. Pasby’s At the time of the crime by normally suffered those who felony civil disabilities by taking was considered a when theft adjudged guilty of an offense under have been property exceeded in value. Ga. $100 stolen 1812(a)(1977). discharge completely Georgia ... statute law. "The Ann. This sub- Code 26— any pur- sequently criminal was amended raise minimum defendant exonerate[s] rights pose § as O.C.G.A. 16-8- of his $200 value to and recodified not affect civil [does] and (1982 liberties; 12(a)(1) Supp.1986). not be & If convicted of the or the defendant shall crime, Pasby prison sentence of not less O.C. faced to have a criminal conviction.” considered year years. (1985). one and not more than ten than Ga. G.A. 42-8-62 § 26-1812(a) (1977) (amended Code Ann. and re- 16-8-12(a)(l) (1982 § & codified Supp.1986)). O.C.G.A. among Georgia conditions a are These sentencing may impose offender court (1985). probation. See 42-8-35 § O.C.G.A. Pasby’s presume true surname is We under that sur- he was arrested Moss because 47. See text first supra note for the name, pled he when said was Thomas Moss he offender act. superior sentenced him as guilty, and crime, Pasby custody;

committed a new could lose the sheriff executed the warrant status, of his first the benefit offender day, the next January time, 6. At this guilty plea unadjudicated to theft Pasby being held in county jail for taking prior would be considered a convic two allegedly rifle, reasons: for stealing a purposes tion for the habitual offender felony, allegedly and for violating the 17-10-7(a) (Supp. See act. O.C.G.A. § probation. conditions of probation His 1985).48 file does not indicate long Pasby how 13, 1976, day know, detained for On December after the either reason. We do robbery Majik Market and Ms. Allen’s dis- respect probation with revocation appearance, GBI’s Crime Information matter, Georgia required law the sher- reports issued two Center Atlanta “for iff, on executing the arrest warrant issued only”: Pasby official use one “Thomas by Pasby’s sentencing judge, bring Pas- GA00521109;” Moss,” “SID number “forthwith,” before judge O.C.G.A. Pasby. reports other on Thomas were 42-8-38(a) (1985), and § authorized the based on information furnished to the Cen- judge to “commit him or release ter “FBI Fingerprint and/or or without bail to await hearing further respectively Contributors”49 indicated charge.” dismiss the O.C.G.A. 42-8- [to] § Pasby placed that Moss and had been on 38(b) (1985).50 Pasby testified probation year as the one result of Bleckley was released from County arrest 1 and subsequent on November March, jail in late when the State decided by taking. Pasby’s for theft conviction prosecute not to him on the stolen rifle probation request- file does not reveal who charge, nothing, but he said and the record ed reports placed these when were nothing, contains sentencing about does the file. Nor the file indicate the judge’s disposition probation revoca- relationship existence of between the proceeding began tion which with the is- reports Majik robbery and the Market suance of the warrant for his arrest on Ms. disappearance, beyond Allen’s the sim- January 5. probation Nor does the file reports ple fact that the were issued one happened indicate what to the stolen rifle day later. charge triggered the revocation pro- 5, 1977, January On day Pasby after ceeding. Pasby’s probation file does indi- was arrested confined in Bleckley cate, though, he satisfactorily termi- jail stealing County a 30.06 caliber probation 10, 1977, nated his on November rifle, Pasby’s probation hunting officer, testifying five months after Baker, E. “delinquency Robert submitted a trial. report” sentencing judge, requesting Pasby’s Between Pasby’s (i.e., that he issue warrant for confinement in the Moss’) Bleckley jail failing County comply January arrest for with the probation. conditions of his forty-two warrant indictment days later, immediately, directing Bleckley paid issued Baker several visits County sheriff to take Thomas Moss into and Bleckley also conferred with the Coun- 17-10-7(a) (Supp.1985) provides 48. supra § O.C.G.A. See note 49. 28. as follows: person Any felony convicted of a offense in Bleckley County 50. We assume that sheriff this state ... and sentenced to confinement in brought Pasby sentencing judge before his after institution, penal shall who afterwards com- Pasby's he executed the warrant for arrest. The by felony punishable mit a confinement in a judge record does not indicate whether the or- institution, penal shall be sentenced to under- Pasby violating dered "committed" for the con- go longest period prescribed of time for probation his ditions of or him released “with punishment subsequent offense hearing," e.g., bail or without to await further convicted, that, provided which he stands un- hearing, probation revocation or dismissed the law, by provided judge less otherwise the trial charge dissolving the arrest warrant. All discretion, may, probate suspend his in Pasby that the record shows is that remained in prescribed maximum sentence for the of- Bleckley County jail for about three months. fense. on occasion, court, sentenced, on a Pasby been authorized the special agent, interrogating A GBI 52. charged guilty 1977, plea to the offense but without Pasby of January not if he did told guilt, adjudication offender’s to sen- accessory of the cooperate he would be considered an period (up to 10 to a of confinement tence him Allen For the full text to the murder. place by taking) to him on years theft or Pasby, agent’s supra see note statement to (1985). 42-8-60(a) probation. See § O.C.G.A. court, upon revok- penalty The act also authorized years for theft was the maximum Ten adjudicate ing probation, to him of- the offender's taking. If under the habitual sentenced 730 question phase

Finally, still remains wheth- his clearly explic- of trial did not Pasby itly under a formal or infor- option impose er testified inform it of its to a life and, so, grant immunity the ex- mal of sentence even if it found the existence of a whether, immunity, of absent statutory tent aggravating circumstance. Un- grant, Pasby thought he had immu- Georgia’s scheme, such der sentencing death freely engaging in nity. Pasby admitted jury must statutory first decide whether a which, least, very at the conduct warranted aggravating present. circumstance is If probation; yet, of his the revocation exists, such a jury may circumstance unpunished. is conduct went Petitioner en- impose a of presence sentence death. The inquire prom- to whether the titled State aggravating of a statutory circumstance Pasby go unpunished. it ised thus defines persons eligible the class of is pursue He also entitled to the answers to penalty Georgia. the death gen See questions poses. the other the record 862, erally Stephens, Zant v. 462 U.S. 870- 2733, 2739-44, 103 S.Ct. 77 L.Ed.2d 235 sum, probation Pasby’s In our review of (1983)(referring to Court of Geor- file, in record, the context entire gia’s question). answer to certified convinces us that it contained information highly to Brady/Gig- relevant statutory aggravating Once circum- court, claim. The state in deny- lio habeas found, jury stance has the absolute ing counsel access to that infor- discretion to impose a sentence of im- life mation, petitioner the opportunity denied prisonment or one death. Id. In exer- prove his claim. It follows that the state cising discretion, jury must consid- hearing full, fair, habeas and ade- extenuation, er mitigation, all evidence in therefore, quate; findings produced and aggravation. jury is not required hearing regarding Brady/Giglio “give any special weight any aggra- claim are not entitled to under deference circumstance, vating multiple to consider 2254(d)(1982). U.S.C. The district court § aggravating sig- circumstances more denying erred in and in adopting peti- them circumstance, single nificant than a such evidentiary hearing. tioner an This case aggravating against balance mitigating purpose. must be remanded for that pursuant any special circumstances stan- 873-74, 103 dard.” Id. at S.Ct. at 2741. In

IV. sum, finding statutory aggravat- Petitioner contends ing that the court’s circumstance makes eli- the defendant the jury sentencing gible death, instructions to at the for a sentence and the guilty court, pled guilty the offense to which he had ed sentence unless the at the time impose up and to places probation, maximum sentence the offender on either informs offense, provided for that see § O.C.G.A. 42-8- person sentencing him in or in its written order 60(b) which, case, (1985), Pasby’s was 10 that he could receive the maximum term of years. supra See note 43. imprisonment if he allowed law violates the sentencing Pasby on November probation. Griffin, Ga.App. terms of his See the court by imposing deviated from the statute case, Pasby’s at S.E.2d 864. In one-year imprisonment, suspend- a ing term of sentencing court’s written order did not inform it, placing Pasby probation. before Al- that, Pasby upon proba- revocation though this sentence did not conform tion, prison be sentenced term statute, Georgia upheld courts have sen- similar Therefore, up years. Pasby to 10 could not have imposed tences State, under the act. See Griffin subjected prison to the maximum term Ga.App. (1982) 295 S.E.2d 863 (his being exposure maximum limited (five-year imprisonment suspended term unexpired portion suspended of his 12-month probation act); placed on defendant under the sentence) upon probation the revocation State, Ga.App. Johnson v. 288 S.E.2d person unless court informed (1982) (ten-year imprisonment 366 pended term of sus- sentencing subject that he remained to the maxi- placed probation and defendant un- prison transcript mum term. Because the act). indicate, however, der These cases record, Pasby's sentencing hearing is not in the suspended that a sentence can affect the court's we do not in- know whether was so ability, upon revoking probation, impose a formed. imprisonment greater suspend- term of than the

731 evidence, ability implied impose not to the death deter- must, considering all the Supreme Georgia The impose a sentence penalty. to such Court mine whether probable life sentence instead.55 a certificate cause impose a denied appeal. scheme, sentencing Georgia’s Given has law established circuit’s case next jury Petitioner raised his instruction require eighth fourteenth amendments petition in the instant claim habeas explicitly judge “clearly and that the trial filed in the district court. The relief dis- mitigating circum- jury about instruct the jury concluded that the trict court instruc- option to recommend stances and requirements enunciated in tion met Zant, F.2d against Spivey 661 death.” v. peti- and denied the Spivey and Goodwin 1981), (5th 464, Unit B cert. de 471 Cir. I.B., As have indicated in Part tion. we 1111, 3495, 73 nied, 458 U.S. 102 S.Ct. panel affirmed the district court supra, (1982);56 v. L.Ed.2d 1374 see Goodwin Following panel’s issue. deci- on this Cir.1982), (11th 794, Balkcom, F.2d 684 801-02 argument the initial and before sion denied, 1098, 103 S.Ct. 460 rt. U.S. ce court, Supreme Court Geor- en banc (1983); 1798, also Peek L.Ed.2d 364 see 76 Stynchcombe 252 gia Floyd, decided v. Ga. Cir.1986) (en (11th 1479 Kemp, v. 784 F.2d 828, (1984), 311 S.E.2d which 830 banc) (instruction upheld no reason- where jury very instruction similar held that have juror could misunderstood able in this case did not “include lan- the one impris- of life option impose sentence jury guage explaining they man- onment). Similarly, Georgia case law even if recommend life sentence could im- cannot be dates that a death sentence statutory of a they found existence “clear makes it posed unless the court jury The aggravating circumstance.” they recommend a could jury trial, jury had Floyd, like the if the exist- life even found sentence finding aggra- upon instructed been statutory circum- aggravating ence of vating it was “authorized to circumstance 142, State, 240 Fleming v. Ga. stance.” imposing of death. a sentence consider” 37, (1977); 146, Stynch- 40 240 S.E.2d see Georgia’s decision in 114, 113, Floyd, v. Ga. combe appear peti- made it Floyd therefore (1984). S.E.2d had er- jury instruction claim tioner’s initially claim that raised the Petitioner state habeas roneously decided his initial instructed adequately not been jury abeyance case We held this proceeding. sentence option to recommend a life its to the Geor- present so relief filed petition his first habeas might arising have claims he gia courts The state court denied state court. Floyd. Stynchcombe v. out charge petition, holding that petition in then filed a new Petitioner whole, in- as a

jury, viewed seeking relief. The habeas court state jury its recommend ability formed the to reconsider court refused habeas state circum- aggravating a life sentence even petitioner’s jury instruction the merits present. focused stances were The court issue had been the identical claim because telling the language in the instruction previous petition. court in a raised that, aggravat- statutory if it found a change represent did Floyd held that circumstance, ing it would be “authorized the consider- that would warrant in the law impose whether to a death consider” subsequent petition but was of a ation “au- penalty. The reasoned that the law un- application of the same merely consider sentence thorization” to a death Securities, Inc., Reynolds 667 F.2d aspect In Stein sentenc- 55. The final death 1982), binding mandatory (11th adopted as ing Cir. this court scheme involves automatic and every See the former appellate review death sentence. of Unit B of precedent all decisions 871-80, Stephens, September 462 U.S. Zant v. handed after Circuit down Fifth 2740-44, (1983); O.C.G.A. 77 L.Ed.2d 235 17-10-35(a) (1982). § adjudi- throughout der claim was which fendant you trial before petition. cated in his first state habeas The and the statements made and evidence petition dismissed as succes- therefore pre-sentence offered in the hearing that despite sive the fact that state trial just completed your has pres- in had, proceeding, first habeas ence. You are authorized to consider applied in a manner the law inconsistent any previous activity, of criminal history Supreme Georgia’s Court of with the hold- any; you if are authorized to include ing Floyd. your consideration, the facts and circum- stances, any, mitigation if and aggra- Georgia granted Supreme Court a Mitigating vation. circumstances are probable appeal. certificate cause to justifica- those which do not a constitute court, agreeing with the trial court’s tion ques- excuse the offenses in analysis, represent Floyd held that did not tion but which in mercy may fairness and new law and that had not be as extenuating reducing considered presented grounds sufficient to mandate degree culpability of moral or blame. reconsideration of claim that had been previous petition. considering mitigating Accordingly, raised in a circumstanc- es, you age dismissed would consider the of the petition as successive. We offense, then re- defendant at the time of the if briefing supplemental ceived and heard you, ad- that has been if shown it has argument not, ditional from you counsel. your can form own opinion toas age your observation. We must determine whether the trial Aggravating circumstances are those charge, whole, judge’s as Cupp taken see guilt enormity which increase the or the 141, 146-47, 414 U.S. Naughten, of the offense and injurious add those (1973), 38 L.Ed.2d 368 adequately consequences. jury option informed it had the against death, notwithstanding recommend presence statutory of a aggravating you If statutory aggravating find the Goodwin, circumstance. See 684 F.2d at circumstances which the Court has enu- 801-02; Spivey, 661 F.2d at 471. We con- you merated to which the State contends

clude did not. exist, denies, which the defendant your be, “We, form verdict would jury The court instructed the on certain fix Jury, punishment defendant, statutory aggravating posit- circumstances Moore, Carzell on Count I at death and ed State. The court then instructed following we find statutory aggra- jury as follows: vating circumstances:” you If find such statutory aggra- vating beyond circumstances existed then, If, hand, event, upon doubt ... on the considering

reasonable other you be would authorized consider im- this case and all of the facts and circum- stances, posing you impose sentence, a sentence death. a life be, your form verdict would you If find Count statutory do not that such “We, I, Jury, punishment fix aggravating circumstances existed be- defendant, Moore, I, Carzell yond doubt, on Count you then reasonable would imprisonment.” life not be penalty authorized consider the event, of death. In that the sentence imprisonment life. II, you to Count As find one or more statutory aggravating circum-

In arriving your stances which the State contends to determination ex- ist, case, appropriate you what sentence is in each existed in this and if count, you penalty, are authorized to consider all occasion to consider death your evidence received here in Court the form of verdict as II to Count presented “We, Jury, punish- the State and the de- would read: fix Moore, phrases from the defendant, on lated instruction and Carzell ment of phrases the follow- find those an indication that and we find II at death Count inexorably sentence need not statutory aggravating circumstanc- death have ing finding aggravated a of an flowed es:” whole, however, theOn the circumstance. upon jury told the that instruction The providing falls far short of clear instruction aggravating it was finding an circumstance explicit jury information to the that it and impose a to death sentence “authorized” not to option recommend a sen- had that, aggravating absent an circum- and average juror of An tence death. stance, to authorized consider it was not gotten impression easily that the jury of The was then penalty death. aggravating an circumstance existence aggravating an circum- that if instructed a death The court necessitated sentence. your “the form of verdict stance was found jury to that effect. The instructed instruction, in This ... death.” would be provide clearly ex- failed to instruction jury informed mandatory language, constitutionally plicitly required guid- required to return a sentence that it was death sentences must ance. Petitioner’s aggravating circum- if it found death therefore be set aside. stance.57 the instruction elsewhere It is true that V. mitigating circumstances and al- described evi- jury consider all lowed the has Petitioner also contended that presented. The fact that the instruc- dence testimony of Ms. Al the admission mitigating circum- tion made reference to during father in the sentenc len’s rebuttal distinguishes from the instruc- stances ing encouraged phase of Goodwin, Spivey employed tions compari a jury to base its decision on mitigating which omitted reference of Ms. Allen and son of the characters agree also circumstances. We rendering thereby his death sen petitioner, imposing a sen- consider” “authorization to it was based tence unconstitutional because aggra- jury if the found an tence death hold, in arbitrary factors. Because we vating imply ability circumstance could IV, in trial court’s supra, Part is not impose such sentence. It not to sentencing hear jury at the struction to however, same, explaining as to the ing constitutionally defective was jurors upon finding aggravat- even must be set petitioner’s death sentence had option ing circumstance aside, we need not address the merits a life sentence.58 recommend argument. The State petitioner’s alternate whole, penalty, how instruction, pursue the death taken as a at best wish The ever, sentencing hear requiring a new confusing thus contradictory and was jury, we feel ing therefore if it determined that an before jury’s function briefly aspect comment on one obligated to present. aggravating circumstance was testimony. Allen’s The State called upon finding an of Mr. jury was told to show Allen in rebuttal as “witness its verdict would Mr. aggravating circumstance circumstances”; he was the aggravating portion of instruction That death. testify sentencing directly last witness at the contra- plainly erroneous testified, hearing. the de Mr. Allen over option to a life sen- consider dicted her course, objection, that at the time of to lift iso- fense’s possible, tence. It course, assume, Stynchcombe Floyd, 252 Ga. that a reasonable We must (1984), 311 S.E.2d discharge duty under law juror his Georgia jury inform- instruction held that faithfully execute the court’s instructions. upon finding ing jury one or more required jury case the instruction In this aggravating it was "authorized to circumstances any statutory punishment at death” if "fix ... imposing a of death” was not sentence consider exist. aggravating was found to circumstance explain it could also sufficient a life sentence. recommend death, years Allen was justification, Ms. almost nineteen or the alternative now ad- old, high been an honor student State, vanced there was no reason to attending school, Middle Col- introduce the of Mr. Allen in lege scholarship, had partial on a rebuttal after the defendant had put working part Majik time at the Market hearing. evidence at the sentencing education, help pay for her and desired to sentencing defense's ease at consisted of become nurse. innocence, reiteration of his plea mercy, plea and his mother's appeal, On challenged direct mercy. testimony, Mr. Allen’s purportedly admissibility testimony. Mr. Allen’s demonstrating aimed at daughter’s his lack Supreme Georgia Court of found that crime, of involvement in the did not “re- testimony was admissible to rebut an any but” evidence the defense adduced at inference that could have drawn from sentencing point. Furthermore, on that presented during guilt phase petitioner’s entire thrust of defense participated of the trial that Ms. Allen had was his present contention that he was not robbery; during guilt phase in the place. when the crimes took He trial, testified testimony the defense elicited question, that on the in afternoon after Joyce Brown, the assistant manager drinking large alcohol, amount of Market, Majik of the who said that when passed out at his home and was therefore Majik shortly she arrived at the Market asleep at the time the abducted, crimes occurred. At after Ms. Allen was she discover- the sentencing hearing, petitioner undamaged. ed the safe unlocked and reassert- Ac- ed his any innocence and cording Supreme denied Georgia, Court of involve- ment in the crimes. participation Ms. Allen’s in Given this robbery testimony, impossible mitigating would have would have been constituted for him to factor that, that the State was contend although present entitled he was rebut. Market, the Majik no armed robbery or appeal, In this the State has also raised kidnapping occurred because Ms. Allen justification, an alternative not considered willingly opened the safe and left him. with by Supreme Georgia, Court of for the argument Such an totally would have been admissibility of testimony. Mr. Allen’s petitioner’s testimony inconsistent with now argues seeking State that it was sentencing and at and was never ad- prove statutory aggravating circum- vanced the defense. Because it was charged stance that crimes (rape and argument clear that could not have murder) were committed while the defend- jury, been made to the Mr. Allen's testimo- ant engaged in the commission of an ny it, was not necessary to and rebut capital felony aggravated additional or bat- testimony have been admitted for (armed tery robbery or kidnapping as well purpose. Whether the substance of murder). rape or See O.C.G.A. 17-10- § Mr. testimony Allen’s been ad- 30(b)(2)(1982). The State contends that the missible for sentencing purpose other argued defense could have that Ms. Allen anis issue that we day. leave for another participated in the robbery and willingly departed it, with those who committed thus

diminishing showing VI. State’s as to this aggravating Thus, factor. urges State conclusion, we affirm the district permissibly that it introduced Mr. Allen’s disposition court’s Ake claim to rebut inference that his for the forth in II reasons set Part daughter in robbery was involved disposition panel’s reinstate the willingly accompanied perpetrators. opinion. claims not in this discussed For reviewing record,

After III, the entire we in Part reasons stated we remand find arguments these unconvincing. In the the case to the district court for an eviden- instance, first under either the tiary hearing rationale Brady/Giglio advanced claim, disposing Court of claim. After of grant relief thereon, on the instruction is- district tions ruling depending on its sue, deny relief on all corpus of habeas but other claims. a writ court shall issue grant petition- either directing the State a new grant

er new trial GODBOLD, Judge, dissenting Circuit in sentencing proceeding. concurring part: in part and in part; REVERSED AFFIRMED issue, respectfully I the Ake dissent On REMANDED, instructions. part; and opinion holding of the court from the (Part opinion by Judge Tjoflat) II of the part, RONEY, Judge, concurring in Chief dissenting I opin- I in Part join dissenting concurring part, specially Judge ion Johnson. FAY, joins: Judge, part, in which Circuit issue, opin- I in the Giglio concur On judgment which reverses I in the concur (Part holding of the court III of the ion and relief on the corpus the denial habeas by Judge Tjoflat). opinion issue, reasons set forth for the instruction issue, I instruction concur On Tjoflat’s opinion. Judge (Part holding of opinion panel opinion reinstating the I concur by Judge opinion Tjoflat). IV the of Judge in discussed on all other claims not issue, comparable worth I concur On the opinion. Tjoflat’s opinion by II the dissenting in Part of the denial of relief I in specially concur part re- Judge except Johnson thereof set ground Ake reasons on the garding jury argument concerning de- opinion Judge Tjoflat’s forth in both terrence. Judge opinion. Hill’s grant of relief I from the dissent HILL, in Judge, concurring part Circuit for the reasons set Brady/Giglio issue RONEY, dissenting part, in in which Judge in Hill’s dissent. forth EDMONDSON, Judge, FAY and Cir- Chief grant HENDERSON, relief on the issue I not Judges, would Senior Cir- cuit concerning testimony for the the father’s Judge, joins: cuit Judge opinion for set in Hill’s reasons forth court, judgment I in the of concur was con- in the discussion panel, which sentence of death con- insofar as the cluded with: reaching constitution- cerned. Without Thus, prosecution appears it given in case ality of instructions presented of character- properly misspoke not and instructed judge In the jury. to the istics of the victim aggravating that if found jury taken, prosecution did brief evidence “would be” their verdict circumstance racial, demonstrate the not undertake to death, agree that instructions that I ethnic, or characteristic other forbidden mus- pass constitutional given do not were say that the any party. of We cannot has not petitioner agree I also ter. balancing relevancy of judge’s that, Court’s under the shown against testimony prej- its Allen’s Mr. Oklahoma, 470 decision Ake v. recent constitutionally faulty. We udice 1087, 68, 84 L.Ed.2d 53 105 S.Ct. U.S. it violates prepared hold that are constitutionally entitled to (1985), he was know for the who constitution experts non-psychiatric the assistance of murder. was the victim it separately I defense. write aid him his (11th 640, Zant, F.2d 646 722 Moore my analysis issue on that because judgment of Cir.1983). the extent To from that of the somewhat question differs issue, I on this relief the Court denies respectfully I must dis- opinion. majority relief, grants I concur; to the extent holding however, sent, majority’s from the dissent. evidentiary is entitled to an he claim Brady/Giglio hearing on the sum, district I reverse would claim I Ake presents. address instruc- and remand with judgment court’s I Brady/Giglio “reality in Part claim recognize today, we name- Part II. ly, that when the State has made the de-

fendant’s mental condition relevant to his criminal culpability punishment and to the I. NON-PSYCHIATRIC EXPERT suffer, might he a psychi- assistance of UNDER AKE v. ASSISTANCE atrist well be crucial to the defend- OKLAHOMA ability ant’s Ake, marshal his defense.” majority opinion peti- concludes that 80, 470 U.S. at 105 S.Ct. at 1095. The rights process tioner’s due were not violat- length upon commented at the arcane appoint ed the trial court’s refusal to nature of the inquiry into whether one is experts presentation him in the assist legally insane, noting particular the in- his defense because failed to make the dispensable psychiatric nature testimony requisite showing that would aid presenting an insanity defense. The is- the defense or that the denial of such as- sues involved “inevitably complex are fundamentally sistance would result foreign” to the common knowledge ju- Oklahoma, unfair trial. Ake v. See rors, so that psychia- “the 82-83, 68, 1087, 1096-97, U.S. 105 S.Ct. can trists ‘a necessity crucial and virtual (1985); L.Ed.2d see also Caldwell v. insanity if the plea is to have chance 320, 472 U.S. Mississippi, 323 n. ” success.’ Id. at 105 S.Ct. at 1096. (1985). 2637 n. 86 L.Ed.2d 321 The Court held therefore that the state’s I analysis not turn the of this issue must, financial interests as a matter of proba- that conclusion. Petitioner has law, yield constitutional interests bly shown that assistance would the state and the defendant in the accuracy have aided his I pro- defense. would thus of proceedings the criminal in those cases analysis whether, Ake, ceed to an of under in which the defendant can demonstrate to constitutionally entitled to the trial court sanity before trial that his is expert the sought. assistance he likely significant to be a in factor his de- At the outset I observe holding 83-84, fense. Id. 105 S.Ct. at 1097.1 in simply Ake is that where the defendant This, course, of involving is not case pre-trial showing makes a sanity that his is the sanity issue of vel non. The defendant likely significant to be a issue in the case interposed plea guilty of not based on the ishe to entitled the assistance of an inde- offense, facts of the not on the condition of pendent psychiatrist at expense state if he Ake, his mind. In the denial of indi- the cannot afford one. The sanity issue of vel gent request defendant’s for psychiatric as- peculiar non law, is a in issue criminal sistance necessary had the effect of holding almost principally Ake was motivat- completely precluding him by presenting ed recognition prove Court’s that to any claim of insanity to insanity jury, regard- valid defense one must necessar- ily present validity less of the testimony of psychiatrists. of the defense. In this case, Analyzing probable although it appears value of psychi- appellant sought might atric assistance have been by Ake and the risk aided at trial the assist- of proceeding error experts own, ance of of assistance his inability his to offered, were not the Supreme Court obvi- obtain their services did not neces- ously considered essential to sary its decision effect of preventing him from assert- note, however, 1. The 1097; Court was careful U.S. at 105 S.Ct. at also see Martin v. such a constitutionally defendant is not entitled Wainwright, (11th 770 F.2d 933-35 Cir. psychiatrist to choose a personal of his own 1985). constitutionally cog- This is because the liking or receive funds hire his own. Rather objective by nizable provision served aof required only the Court provided that he be psychiatrist’s greater accuracy assistance is competent, independent psychiatrist access to a judicial proceedings, greater not likelihood Ake, proving to assist him in his defense. appellant To suggests A extend Ake as his defense.2 valid ing supporting impose extraordinarily would far-reach- that he was not at defendant claim the ing costly burden the states ordinarily crime the scene obviously are taxpayers. their There many effectively at trial in a wide vari- supported important issues in criminal trials whose nature of ways. Regardless ety presentations conceivably be en- issue, proof on such an prosecution’s expert testimony. however, hanced Ake testimony one of the constituted but expert holding premised upon pe- is narrow such a many effective means which psychiatric testimony culiar role necessar- case, might claim be substantiated. ily plays insanity the assertion of an testimo- appellant offered little but his own or, capital sentencing proceed- in a defense presented by ny to rebut ing, evaluating mental as an ag- condition that he was at the prosecution to show gravating mitigating circumstance. Ab- the crime when occurred and scene of sent further direction from the not certainly I had committed it. Court, I am convinced that unless non-psy- hold, however, simply appel- because is, expert chiatric assistance because of the facts and lant’s defense was weak sought, nature of the on which it is issue proof otherwise available methods psychiat- vital to resolution of the issue as him, constitutionally entitled he was Ake, ric assistance was in the Constitution develop experts help him assistance require provided does not that it be in a support theory the case before agree criminal trial. I therefore with the Further, appellant not enti- jury. petitioner is majority that not entitled to an experts own tled the assistance evidentiary hearing in the district court on part upon simply the state relied because rights his claim that his constitutional were prove case. The its following violated when he was tried providing assistance to purpose provide him trial court’s refusal not to even the score. the defendant experts funds to hire aid in the affording accuracy-enhancing value of ex- presentation of formulation and his de- defendant and the pert assistance to the fense. guilt

risk of erroneous determination provided are not if such assistance is II. THE BRADY/GIGLIO CLAIM significantly appel- in a case like increased Brady rights under Moore claims that experts by use of by lant’s the extensive 83, 1194, 83 S.Ct. Maryland, . 373 U.S. v inability to the state or the defendant’s (1963), Giglio 10 215 and v. United L.Ed.2d support in present other evidence 763, States, 92 31 405 U.S. S.Ct. he assert. Those the defense chooses (1972), 104 were violated when the L.Ed.2d expert render assist- might circumstances reveal informa prosecutor failed to certain they helpful, do ance to such defense but in have aided the defense tion that would significantly not render such assistance credibility of attempts its to undermine the litigated determina- Pasby. more essential to the accurate This claim was in Thomas courts, proceedings in committed the those tion of whether the defendant state but probation file was not made avail charged. Pasby’s he the crimes which might persuades experts me that who have been his defense. defendant will succeed with that the See 77-83, Ake, 105 have U.S. at 1094-97. to the defendant would done available testimony more to limit the force of the little in fact would have 2. Whether defendant latter, candor, experts did than the in state’s substantially from the assistance of benefitted experts indicates, however, my analysis As themselves. not free from doubt. In- of his own is willing purposes of I to assume for the am deed, as was offered was such determining appellant’s claim constitutional conclusive, and both direct and cross- less than to which he now claims he that the assistance witnesses am- examination the state’s him would have done some was entitled fact qualified ply na- the limited and demonstrated good. opinions. reading A of this record ture of their or his petitioner credibility able to counsel. For that by suggesting perhaps that reason, majority reasonably finds that Moore’s believed such consideration fully might fairly litigated be forthcoming, claim was not even if no assur- proceedings that state ances the state made. findings are therefore court’s not entitled agree I majority’s with the conclusion statutory presumption of correct that has not received full ness. The court further holds that an evi hearing fair in the courts on the dentiary hearing is on warranted the claim Brady/Giglio claim he seeks to raise in and remands the case to the district this court question now.3 The before this purpose.

for that court then becomes allegations whether the complaint, of Moore’s supported probation file have would revealed probation file, are warrant evi- following prosecution, facts that hearing dentiary in the district court. The according petitioner, dis- should have majority opinion they do, holds relying that timely closed to the defense in a manner: heavily on might inferences that be drawn (1) Pasby had been sentenced No- on from the pro- information contained in the 1976 to serve months in vember view, report. bation In my allega- bare custody placed probation, on awith complaint, tions supported that, probation being condition he vio- copy probation file that we thereof, lated the terms he could re- be examine, have been clearly able are in- quired to serve balance sufficient to warrant evidentiary hear- months; (2) January ing. I reach this conclusion not because I violating the was arrested for terms of his believe the prosecutor acted correctly in probation; (3) probation that his officer failing file, to discover and turn over the him Bleckley had told sheriff of but beyond because I find it question clear County “put good word for there is no probability “reasonable up when his case comes because of his that, [petitioner had the evidence claims matter, cooperation” unspecified in some improperly been disclosed to withheld] presumably ranging investigation “wide defense, proceeding the result of the firearms, of other stolen one which would have been different.” United weapon murder in the Theresa [the] [sic] States v. Bagley, 473 U.S. 105 S.Ct. previous entry Allen case” mentioned in a (1985) (Black- 87 L.Ed.2d 481 report. in the This information mun, J., joined by O’Connor, J.); id., 105 been useful to respects: the defense two (White, J., S.Ct. at 3385 joined by Burger, (1) arguably suggests Pasby may It C.J., Rehnquist, J.). have been led to believe that he would special proba- receive consideration Taking probation file to establish all tion proceedings revocation exchange suggests, that it only arguably material cooperation (2) in the Moore case. It credibility bearing Pasby’s facts could have been used to his undermine were not revealed in a manner that would proceeding (citations In the state petition omitted). habeas on which ed state habeas support argument relies state in of its that presented Thus the habeas was state already Moore has ing received a full and fair hear- made, with the that even no claim if deal was Brady/Giglio only on the claim the follow- report probation information contained ing presented version of the claim was Giglio been disclosed therein should have under by state habeas "The court: trial court overrul- might because it have aided the in defense its ing Petitioner’s to disclose to motion whom im- result, impeachment Pasby. As it seems munity [sic], prose- had been disclosed and the that has not a full clear Moore had and fair by failing prior cution to disclose to to trial hearing Brady/Giglio on claim he seeks to prosecution Petitioner that the crucial PASBY, witness make here. The state habeas court promised granted had been or immuni- made, said to have found that no deals were but ty previously suspended from a under reasonably be to have could not said found that Act, deprived First Offender Petitioner favorable no information to defense was process of due of law under Fourteenth withheld. Amendment.” Count Six of amend- the rifle. I’m not trying hang you use at trial to permitted their effective have any way, shape wanting on form. I’m (1) Pasby proba- fact that are (2) wanting to know about rifle. I’m to the fact that when he testified tion you had knowledge know with probation officer by told he had been to where it reference was stolen. I know cooperation the Tere- that because you know about rifle but like to I’d investigation, the murder sheriff sa Allen you know if knew where it was stolen. good County “put Bleckley would know anything you I’d also like to else up.” him when his case word for [came] have to I’m in reference this. That’s all exploited have been defense This could asking you. going I’m not try to—to to suggest at trial at most that counsel put you. wanting pressure to I’m not part by Pasby’s was motivated trying you, sit I’m here bullshit serving the remainder of a desire to avoid nothing get I wanting but truth. can imprisonment year the one sentence hardnosed. You know an accesso- what placed suspended he was had been when ry aiding abetting. is? That That is probation.4 is, according Georgia law, is called of this sort of im- possible effect aiding abetting. You an acces- have peachment jury’s on the assessment of Pas- fact, sory you before the an acces- have credibility may only be evaluated by’s sory during, you accessory impeachment Pasby the context after. You could fall one of these into turned to the defense with material over categories. Refusing give information unconvincing. found the state prove prior you that we can cross-examination, defense counsel On questioning you accessory. this makes Pasby brought out the fact that had made you route, go If that’s called want investigating officers several statements aiding abetting. you That makes he was arrested to effect soon after punishment liable to receive the same nothing he knew about the crime. His actually trigger person pulls who however, changed, story when found raped actually girl or who who prosecution threatened for the himself with girl. Now, strictly kidnapped the that’s investigation. under De- murder that was wanting up you. I’m not to be hard- completed his cross-examina- fense counsel doing trying All way. nosed I’m Pasby as follows: tion Thomas, you, to sit and ask down being Q. you Do remember inter- you give me the truth and me tell Roy Olinger? Agent GBI viewed all, information, maybe that’s clean Yes, right you sir. rest here.” Do remember A. of it telling that? you Q. you Had it like it was told before Yes, A. sir. Olinger? talked to Officer you got right Q. you it down No, And then A. sir. then that? after Q. You it like was then? hadn’t told Yes, A. sir. No, sir. A. all. BY MR. FREEMAN: That’s Olinger

Q. you Do Officer remember “This then reference to asking you question: is what Defense counsel made in his clos- Pasby I this cross-examination realize it incriminate we want. ing argument: way. you not out after you some I’m hearing majority opinion purpose have indicated that 4. for the assumes exposed years impris- might analysis Pasby re- told he be ten that could have been of its rather up prison upon probation onment violation of his quired years serve if his to ten in one, remaining part petitioner could than the probation at n. 54. The was revoked. See ante presumably at least al- placing probation have and would have Pasby order on stated assume, leged I see no reason to unequivocally that of his much. if he violated the terms determining petitioner purposes of whether probation could serve re- he be made to evidentiary year has made out an entitlement to of his one that had been mainder imposed. sentence alleged. sentencing hearing, Pasby’s that are not even transcript facts If the Pasby he didn't talk says jury that about this did not believe Pasby lying was after he’d in jail case until several prosecution, avoid a murder they surely days, period weeks or several some have believed lying he was time, case, any in he a suspect was any petitioner suggests. reasons jail, while he in he was that when important It is prosecutors to me that it, talked he about talked about after respect obligations their under Brady and Roy Olinger you remember Iwhen read — Giglio, willing I and am to assume with the Olinger, that statement he what majority prosecutor that the in this case Pasby, they told that unless he told what obligation was under an to turn over to the tell, truth, wanted him to told told defense information in Pasby’s found something, going get he that was probation might file that have been useful punishment same as everybody else did. in impeaching defense the witness at change story; He up didn’t until that disturbed, however, trial. I am deeply by point, he had them he told didn’t know prospect aof federal district court or- anything about it. didn’t say He dering the release of convicted murderer anything knew it until they about after subject to retrial at this late on date him going put pressure told were basis of circumstances as unlikely to have Roy Olinger on him. onwas the witness had anything do to with his confinement as yesterday, stand I called for direct those that alleged have been in this case. examination. There a single was not I cannot Because find there exist a rea- question by asked him the State to probability sonable pe- that outcome of show—there was no deny effort made to titioner’s trial would have by been affected actually Pasby that he told that. If he any of the information alleged that, didn’t tell him the State could—he withheld, wrongfully agree I cannot only have told them. I think the majority with the evidentiary that an hear- conclusion is he actually did tell ing is warranted Bra- Pasby, threatened him going that he was dy/Giglio portion claim. From this punished to be for it himself unless he majority's holding I therefore respectfully told it. about dissent. Pasby heavily impeached Thus the fact that he was a suspect very in this JOHNSON, Judge, concurring Circuit in implicate murder petition- and had failed to part dissenting in part, er until he which prosecution was threatened with HATCHETT, KRAVITCH and prosecutor himself. The Circuit did not address Judges, join, GODBOLD, challenge and which directly posed Cir- by defense Judge, joins cuit part, counsel’s Part I and Part II in impeachment of manner, CLARK, which focussing ANDERSON and physical instead Judges, join and testimonial Circuit tending Part I: to corrob- Pasby’s testimony. orate jury Yet the ob- I join the majority’s opinion toas Sec- viously Pasby. believed Thus defense I, III, deference, tions and IV. With I counsel was unable to jury’s influence the disagree disposition with its of the Ake Pasby’s assessment of credibility with the II, issue in Section and I would more unchallenged assertion Pasby’s testi- squarely problems by address the raised mony was part by motivated least prosecutor’s certain he, himself, fear that might prosecuted majority comments discusses its for the Allen light fact, murder. In of Section V. I cannot believe might have argument been moved Pasby’s Issue: I. Ake testimony was somehow influenced probationary Oklahoma, status at the time he In Ake v. 470 U.S. testified by any expectation (1985), of favorable 84 L.Ed.2d 53 the Su- treat- charge. short, ment on other preme if the considered whether state

741 upon factor, required, by solely the consti- Thus it is third capital in case is law, guarantee process due to probable expert tutional value of the assistance psy- indigent an defendant with provide risk upon and the of error attendant its is offered chological expert insanity when denial, that focus in deciding courts will held. Eight of the Justices so as a defense. questions. these In Ake the recognition tre- gave express They noted six factual criteria that Court dictat- expert that uncontested mendous effect appointed need ed the for state assistance upon find- testimony generally has the fact 84-88, case. in Ake’s Id. at 105 at S.Ct. 1096, 7, er, 81, 7, n. at at id. n. S.Ct. But 1098-99. was Court careful is then held that the defendant “[w]hen note, factors, in these identifying show- parte to make an threshold able ex setting forth neither a nor touchstone sanity likely is ing trial court 86, 12, at n. a catechism. Id. 105 S.Ct. at defense, significant factor to be 1099, n. 12. The Court reaffirmed its un- is psychiatrist for the assistance of a need willingness precise to state a test in that that a readily apparent. It is such cases Mississippi, same term Caldwell v. absence may be devastated defense 323-324, 1, 105 320, n. S.Ct. U.S. testimo- psychiatric examination and of a (1985) 1, (rejecting request 86 L.Ed.2d 231 n. 82-83, 105 at 1097. at S.Ct. ny....” Id. investigator, fingerprint expert for criminal pro- constitutionally identifying expert ballistics because “of- right, set forth a three- tected the Court undeveloped fered little more than asser- considered in determin- pronged test to be requested tions assistance would is ing indigent capital if an defendant enti- beneficial____”). be 1) "the assistance: state-paid tled Caldwell, Ake, conjunction read with will be private interest that affected things. First, us it reaf- teaches several State”; 2) governmental action of the “the object firms that obvious the Court’s safe- affected if the interest that will be the need for flexible reticence Ake was 3) prob- “the guard provided”; is decisionmaking of a tailored facts additional or substitute able value of the do not given Capital case. cases lend them- sought, and procedural safeguards that are rigid, ritualistic formulae. Sec- selves risk of deprivation an erroneous suggestion ond, it belies the state’s safeguards are if those affected interest narrowly must be read confined Ake 77, 105 S.Ct. at provided.” not 470 U.S. suggests footnote 1 its facts. Caldwell’s analysis, 1094. It is clear from the Court’s willing the Court to entertain however, capital prongs one that in cases extending fashion re- Ake in the Moore yield results: always two will identic than today. rejecting Rather quests uniquely private “is almost interest inappropriately claim out hand weighs heavily compelling,” “obvious question, the stretching Ake to a different interest is analysis;” in our the state’s grant only relief because refused to coincident individual—in showing suffi- 77-80,105 failed to make Caldwell accurate and fair verdict. Id. flexible standard.1 need under Ake's at 1094-95. cient investigative favorably appointment assistance Other the ... circuit courts considered indigent order to effec- defendants in insure question of constitutional entitlement defense their attor- non-psychiatric experts preparation of their capital cases. tive 1145, 936, denied, Martin, (4th 420 U.S. 95 S.Ct. neys.”), cert. 618 F.2d 1025-26 Williams Zant, (1975); Cir.1980) (“There Westbrook v. can be no an effec- 43 L.Ed.2d doubt that cf. (11th Cir.1983) (state requires 1494-97 sometimes 704 F.2d tive defense the assistance witness____ psychological Moreover, psychiatric ex- provision furnish must indigent capital defendant if evidence experts reasonably necessary perts to indi- to assist necessary other sources opera- gents available is now considered essential to the circumstances); mitigating Knott v. Ma- system.”); just judicial prove tion of a na, Mason v. Arizo- (fail- (8th Cir.1982) (9th Cir.1974) (“[T]he 1212-13 bry, F.2d 504 F.2d expert to contradict counsel to obtain guarantee of counsel ure government effective assistance "constitu- necessary, constitute requires, witness Due Process Clause when 742 opinion today expert majority accepts, for assistance

The would result in a funda- argument, mentally proposition However, of unfair the sake trial. majori- engrafts non-psychiatric experts. ty upon extending to Ake standard strict re- quirements query today that our is not that make Thus' I believe relief unobtainable. demands, The logically majority and appropri- price Ake as the whether for experts. ruling upon request favorable ately to such for extended Rather we assist- ance, A) that the questions: provide specific defendant must decide two how should description expert why desired defendant is enti- courts decide whether the assistance expert of that given necessary. is tled to such assistance the elastic If molded; pros- assistance needed to B) confront rule Ake whether case, ecution’s majority requires showing Moore made before the defendant to detail both the nature court of his need for such assistance suffi- prosecution’s requested case and how cient meet the measure of this test. The expert challenging would be useful in II, majority such a test in its crafts Section case. question and then answers second negative. Because I believe that the agree I cannot approach with this for reading of majority’s prover- Ake creates a First, two reasons.2 the standards the ma- “Catch-22,” making impossible bial for jority actually creates contravene the flexi- (and prescient) but the nimble all most de- approach ble announced in Ake and Cald- expert fendant obtain assistance under By mandating well. essential elements in

Ake, I restructure majority’s would applying prong, Ake’s third majority question test and then answer second precisely does Supreme what the Court de- affirmatively, upon based the record before clined to do: it determines which “of these us. factors, combination, alone or in is neces- sary to finding make a defendant [a] [that

A. is entitled state-provided expert assist- 470 U.S. n. 105 S.Ct. at ance].” majority today attempts bring The this 1099, n. 12. The majority impermissi- thus aegis Caldwell, case arguing under the bly limits interplay of factual considera- showing Moore failed make a tions, case, unique to each the Su- need an expert beyond for that went mere preme sought preserve deciding majority ipse correctly dixit. views question. this Ake as requiring and Caldwell a defendant seeking appointed the assistance of an Second, ex- accepting even legitimacy pert to show that a probability reasonable decision, formal set points exists such expert both that majority’s would be of exacting standards are too be- assistance to his defense and that denial of they require cause pos- defendant representation holding. tional flaw in the ant----"). of a sug- defend- There was no evidence in Ake to The former Fifth Circuit gest considered sought the defendant Alabama, question in Hoback v. 607 F.2d necessarily experts. contradict state Nor was (5th Cir.1979), that, & n. and said provide there evidence that his witness would might

while there be some situations where evidence that was not available from other required states experts, could be to furnish cross-examining sources or from state witness- question need not be decided in that case. es. Experts necessary are the accept “basic tools” for the 2. Nor can I the state’s assertion that in justify appointment Experts defendant to marshal experts order to his defenses. de- as- sist, alia, present gathering interpreting fendant must inter "concrete evidence ... as specifically them, drawing what other information he could facts and conclusions independent obtained use of an formulating strategies cross-examining expert, that was not available experts, translating jar- state's and in scientific [sic]____” expert's examination of state’s gon into terms to the fact understandable find- First, Supplemental Appellee Brief at 19-20. Ake, 77-82, er. U.S. at 1094-96. imposed requirement Court in Ake no such Supreme clearly Court’s concern was more Second, proof. reading the state’s crabbed expansive than the state here admits. spirit belies the tone and Court’s need for the defendant’s assistance into knowledge of the already the sess required the defendant cannot state simply because The Court Caldwell seeks. make a requires. defendant he specific the assistance up front the no more than showing of reasonableness. asks for assistance and threshold a defendant When de- only that the requires obvious, That standard is it is need for the assistance “unde- something more than make fendant deny fundamentally unfair for the court to requested as- the veloped assertions the merely because defendant assistance beneficial____” 472 U.S. would be sistance review- knowledge. After lacks scientific 2637, at n. 1. But 105 S.Ct. n. at prosecution physical evidence the ing the requires this and goes beyond majority the court, experience in the with its possesses, showing full-fledged to make a defendant a cases, may itself be able to deter- criminal the state’s opinion that rebuts expert of an type expert the defendant mine what a de- grave doubts whether I have case. needs. particularized make the sort of can fendant Furthermore, lawyers often lack either majority the demands. showing that ability to learn whole areas the time or counsel in this case Moore’s example, For acquaint can Experts science. of forensic to con- order have known may well princi- scientific counsel with the defense swabbings regarding vaginal test evidence involved, in the ples point out weaknesses expert. But he needed an the victim from tests, and recommend tests prosecution’s a micro- if he needed could he know how The might find useful. the defense chemist, urologist, a organic biologist, an from majority preclude a defendant would used, state hematologist, or that which the ap- receiving from such assistance ever specify he further could serologist? How say that a experts. This is not pointed first testing needed without he type expert appointed is entitled to an defendant that determina- expert to make hiring an prosecution’s upon demand whenever question important In this case one tion? However, physical evidence. case involves Pasby’s semen has is Moore’s whether sufficiently flexible in Ake is the standard How content. high or low “secretion” experts provide such appointed to allow of and attorney both know Moore’s could in certain instances. assistance preliminary of, as well the existence to the court show places on the defend- for, majority without first The also such tests as the need knowing very prescience: he seeks obtaining the advice ant the burden submit, is, intends (or This I Catch- that the state provide. really guessing) court ways.3 testimony surmount. in certain 22 that few will certain to use discovery and Despite limits of summarily deny not relief A court should rule, Moore’s product scope of work speci- cannot the defendant simply because the state undoubtedly knew counsel physical needs. If expert he fy type interpreta- present had and would prose- of the constitutes the bulk evidence even He physical evidence. tions case, assist- the need cution’s testimony to be gist of the have known prosecution’s evidence to confront the ance However, any could defend- how offered. However, genu- the defendant is manifest. inkling as to than an have more ant ever expert he type of inely may not know what such intended to use prosecution challenge. how effective to mount an needs re- prosecutor case In this inquiry evidence? majority would foreclose (empha- S.Ct. at 1097 at places upon 470 U.S. majority the de- ....’’ I note that requiring properly informing read as supplied). Ake is the burden fendant sis perspective physical and the related his to show defendant whether expert from play important role Accord Bowden given be critical. will issue significant (11th Cir.1985). marks a case. This the State’s in modification Kemp, 767 F.2d holding Court's requires offer evidence majority him to Ake, merely required defendant which infinitely prosecutor perspective —an sanity the trial court that "to demonstrate burden. difficult more significant factor in likely be a defense it, telling heavily upon jury that it lied sisted defendant’s of persuading chances incriminating.” prudent “very reject But a such evidence. 470 U.S. 82-84, only prosecutor could make effective use flabby testimony if he such knew that the against was, The case Moore to be chari- rebut with his own defendant table, weak. There was no direct evidence experts. Consequently, majority’s test linking him to the crime he claimed only will play The evidence is circular. that at the time the murder ex- important role if defendant has no passed out his sofa at home. No one at expert if pert, the defendant needs no trial offered an eye witness account of important no To plays the evidence role. episodes in prosecution’s the crime. The all, is the extent that this factor retained at solely upon case was built a two-part foun- ought proof placed the burden of to be dation: of testimony Pasby as to government in- upon to show that the supposed him; Moore’s admissions to and is to at issue not critical its case. formation testimony expert of several witnesses showing ought

Then to a that be made physical toas evidence found at the scene by government binding commitment to of crime and Moore’s house one only in that use the evidence fashion. jury month later. convicted Moore upon based these two elements. Supreme I Court has reiterate that required only that defendant make a This today Pasby’s Court finds that testi- showing of bona reasonableness. mony given may exchange have been for fide showing could, if That is a the defense lenity regard charges pending against to merit, request ought to has make jury him—a not Upon fact did know. justify appointment in order of assist- may Pasby’s remand it well be that testi- objection My majority’s ance. is that the mony incredible, given bewill found engrafts upon opinion requirement un- likely physical own biases. The evidence improper that, I necessary burdens thus assumes an even more critical role in fear, always prove will almost fatal to the question guilt of Carzell Moore’s or request. defendant’s innocence because half of foundation prosecution’s

for the may case well have B. been undermined constitutional error. circumstances, Under such it is not unfair Cardozo, Benjamin with characteristic say in large part the determination grace, once noted that “a defendant be guilt of hinge upon Carzell Moore’s will an if disadvantage[ at unfair he is unable ] testimony experts of majori- state poverty parry because of his own ty powerless would leave him to contradict against witnesses thrust those him.” degree with of effectiveness. Reilly Berry, 250 N.Y. 166 (1929) Cardozo, C.J.). (per N.E. 167 requires parte Ake “an ex threshold showing Court has noted that which trial court” that the matter any experienced judge lawyer subject expert testimony “likely is to be “ ‘[tjestimony emanating significant confirm: a factor” in the defense. 470 scope depth specialized By at 105 U.S. S.Ct. at 1097. Cald- very knowledge impressive is jury. ’s Moore language, well must that his show expert The same from another source interpret need assistance to ” Ake, less upon can have effect.’ physical developed U.S. evidence is based 7,n. n. 7 (quoting necessity. F. of reasonable assertion The ma- Bailey Rothblatt, Investigation require & H. jority description would Preparation type testing, Criminal Cases needed and assistance § (1970)). importance inability explanation A defendant’s rebut an case, expert testimony, coming physical before the to the state’s effectively presumption explanation is what an of how the correctness, “devastating” defending to the Moore in himself. Under unas- assist made a reasonable need assistance I that Moore rubrics believe three all en- showing of for and adequate impeach need state witness order both credi- expert assistance. state-paid titlement credentials and to attack the bility and fac- that those witnesses will tual conclusions hearing, attor- pre-trial Moore’s At the probable likely draw—in short the value of the sub- orally ney addressed the risk assistance and the of error such ject. on, goes The statement however: denied. to make motion would like We independent research there are Defendant understands by this Court analysis appointed [sic] can be run certain tests which which employed the State is not might conclusively prove whether or not to find Georgia this evidence to examine samples found are those from the hair the de- on behalf of his own conclusions defendant, but neither nor his defendant conclusions, in fendant, own to reach necessary have the funds or ex- counsel all, first of have some- we can order that perform tests. pertise to said expertise as to the one to us advise re- This bolsters the reasonableness of the Lab, Crime whether majority’s meets the re- quest further tests, performed the correct wheth- quirement specify that the defendant the any be variances er or there could performed. Moore’s tests he seeks to have Lab, Georgia findings Crime of attorney continued: knowledge have would this order that we us. available to effectively cannot Appointed counsel alone, prepare defense for Defendant with- This, no standing is 2-40. R.Exh. expert “undeveloped of an than out the services witness more assertion[] concerning assistance would be ben- ex- requested advise tests and eficial____” Caldwell, 324, n. at U.S. by the law enforcement aminations run n. But the defense judicial agencies provision and no statement attorney supplemented oral to have has been made for the Defendant request: a written with of to him the kind resources available informed that Defendant has been through are to the State which available physical tend

various of evidence items Laboratory in order that the State Crime him to a commission of to connect validity Defendant can test of charged, crime for even which accuracy any tests have of which that a though understands defendant of by run and the results the State performed by the tests number of evidence may be introduced into which conclusively do not State Crime Lab at trial. against the defendant defendant, presence of but prove the Again, the defendant offered 1-87. R.Exh. prove someone presence rather of showing and a of reasonableness evidence similar to defendant. type expert of to describe sufficient his counsel Neither the defendant nor attorney Moore’s even needed. assistance sufficiently knowledgeable are [sic] name of to offer the trial went examina- determine whether test and expert and the fee proposed Lab performed tions State Crime $1500. services: evidence pieces physical various conclusive, complete, Admittedly, lawyer or exhaustive. not af- are Moore’s did rely the state firmatively allege that would statement, This, goes coupled the oral with here at issue.4 But upon the evidence Caldwell, requirements Ake, in his noted motion forth Moore’s counsel opinion. It sets majority's and of the trial____” assistance, (emphasis supplied). This attorney ask for 4. Moore’s did fendant attorney suggestive rec- that Moore’s at least part, can test is ognized “in that the defendant order physical any evidence validity accuracy tests which case and that he needed important to the state’s which run and the results been may the State respond it. against able to the de- to be evidence be introduced into assistance, produced print longer he could not do so be- and wider than the cause: sample shoe. semen could be identi- Georgia coming any in the fied as is no statute law of the two-fifths

[t]here giving right Defendant the to com- country’s population male sharing process require which pulsory legal will type.5 Moore’s blood The two hairs seized the State to advise the Defendant bathroom, from a towel in Moore’s one basis on which the State intends to at- crime, after the only month could likewise tempt prove defendant is be shown be consistent with those guilty of the crime for which he has been Allen and not inconsistent with those of indicted. Moore, essence, Pasby. Green or today majority R.Exh. 1-88. Thus the im- “expert” only say state’s with cer- indigent poses a burden on all defendants tainty layman which could also impossible which the law of makes have observed: that he viewed a blond Moreover, given to meet. the lack of pubic Negro hair and a head hair.6 Yet the eye crime, witness to this and the fact that prosecutor was able to characterize this physical from the aside evidence the state’s “very incriminating” large evidence as only witness was cellmate a criminal part because he assured that Moore own, I pat- record of his believe it was so could not offer of equal a witness stature go ently saying obvious as without question precisely these assertions. It is evidence, physical expert interpre- pro- cases this sort where failure to evidence, critical, tation of that would be vide assistance to the defendant be- express guess even absent an the de- comes crucial. When physical evidence is fendant to that effect. itself per- weak it well be that the was, physical this case suasiveness of that evidence derives entire- alone, standing weak. As the state’s wit- ly enhancing from the effect caused conceded, nesses themselves there were “expert” testimony prodding jury to- major questions as validity and accu- particular ward a conclusion.7 performed. racy majori- of the tests The For all of the I foregoing, reasons be- ty’s recitation of the does facts not mention lieve majority disposi- that the in errs its prints Hushpuppy shoe found at tion question, of this as congruent crime both a theoretical the scene of the were not matter and applied as size with those seized from within confines Moore’s house, yet case. Moore was unable to counter this Moore has a rea- established damaging this circumstantial experts evidence with sonable need for the assistance of testimony Ake, as to whether the soil grant could have under and I would him relief. expert 5. The who examined semen could did state's witnesses and that he not renew his only show that came from someone of at trial. motion group, Moore’s blood a trait he shared with adequate It is doubtful whether an defense forty per population. cent of male simply impeaching the witness- findings during es their cross-examination. microanalyst samples The the hair admitted Ake, As the Court noted in testi- on cross examination that to or ”[a]s whether mony exceptional persuasiveness is often of to a actually not two hairs [the towel] from jury. presentation contrary Even aof witness particular person] impossible come from [a "expert” not as billed an is less effective. 470 determine in forensic He con- science.” further 81, 1096, U.S. n. S.Ct. at 7. Of n. attempts sample fessed that his match hair course, juror average give would even less particular "right with a are at individual best naturally credence to the biased observations of fifty-one percent wrong forty- time cross-examining defense counsel in wit- state percent nine of the time.” making arguments. closing or in nesses It is enough say not that the defendant has the majority 7. The intimates at the end its discus- Rather, opportunity respond. he must be prejudice sion of this issue that suffered opportunity present assured "a through appoint Moore failure to fair (emphasis defense.” Id. at added). 105 S.Ct. was, effect, given assist that his harmless attorney comprehensively cross-examined the Market, Majik hoped work at the from Worth: Comparable II. a nurse. to become it need not and majority notes notes, majority testimony As the this consti- upon Moore’s claim of pass will ostensibly any sug- admitted to rebut resulting testimony error tutional gestion voluntarily par- that Ms. Allen had majori- Surprisingly, father. of Allen’s robbery, although ticipated Moore goes on to offer a “comment” ty then allegation raised and indeed never the state court remand benefit of have undermined his entire would defense although major- improper, this was argues had he done so. The state now also holding on this it makes no ity claims that this evidence was admissible order posed by Moore is an question point. aggravation show additional —armed one; has found that important this Court robbery kidnapping addition to the —in economy in habe- judicial considerations rape There- already claimed and murder.10 cases-involving penalty permit death as after, explained fully more as will be be- relief,8 possible pass on all bases us low, prosecutor jury invited the contrary doctrine to the the Ashwander weigh society the relative worth value to today do notwithstanding.9 I so two lives at issue: Mr. Moore and and, question having squarely reached argues that it is Ms. Allen. Moore consti- flowing Allen’s testimo- error from Mr. tutionally impermissible for the state to prosecutor’s from the com- ny, as well as sentencing process inject into the informa- during closing ar- testimony ments on inflammatory tion of such nature as class Moore has stated gument, would hold that worth, especially by means of tactics deprivation. a claim of constitutional designed to leave that last case, prosecution jury’s on the mind.11 both the In this after sentencing had rested and defense jurispru- The whole thrust of American closing arguments, phase, before but capital punishment area has dence requested and the trial court prosecution attempt to excise from the sentenc- father to take the permitted the victim’s caprice by ing process any traces of bias or testimony and to to “rebut” certain stand discretion. Fur cabining channeling and “aggravating circum- provide evidence 238, 242, 92 Georgia, 408 U.S. man v. He was the last witness the (1972) stances.” (Douglas, 33 L.Ed.2d 346 Allen objections, Mr. J., punishment heard. Over defense is un- concurring) (capital daughter “by that his was nineteen reason testified if it discriminates constitutional race, wealth, high religion, position, honor social age, had been a school years of of ... class, imposed proce- under a student, college part on a or it is attending or gives play of such room for part earnings on her dure scholarship and legal 1383, apply See, not find- of correctness does e.g., Kemp, F.2d tion Brooks v. 762 1394 8. fact,” Thus, banc). questions (11th Cir.1985) (en ings law and or to mixed of for exam- n. 15 is, legal application principles Brady-Gig- of ple, today "‘the Court resolves both the Zant, error, granting v. Spivey on of case.'” Hance [the] relief historical facts lio claim and the 940, (11th Cir.) (brackets though re- grounds it could have 946-47 both even 696 F.2d Sullivan, ground Hance) (quoting Cuyler alone. 446 U.S. case on either v. manded this 1708, 1715, 335, 342, L.Ed.2d 333 100 S.Ct. 64 1210, denied, (1980)), 103 S.Ct. Authority, cert. 463 U.S. Valley See Ashwander v. Tennessee 9. 3544, 480, (1983), 341, 346-48, 466, 288, on other 77 L.Ed.2d 1393 56 S.Ct. 297 U.S. 482-83, modified (11th Zant, J., (1936) (Brandeis, grounds, 1383 Brooks v. 762 F.2d con L.Ed. 688 80 cases, (en Cir.1985) banc). "Judge In such curring). judgment this blend of his own must exercise Allen, legal v. Brown facts and their values." majority’s rejects of these both 10. The "dicta" 397, 446, 443, 507, L.Ed. 469 97 U.S. 73 S.Ct. 344 justifications. claimed Frankfurter, J.). (1953) capital In a (opinion of severity mandates sentence "the case question presents mixed of law This any colorable scrutiny of in the review careful attendant on a ha- determinations fact. Factual 862, Stephens, 462 U.S. of error.” v. claim Zant presumed correct under 28 petition are beas (1983). 2733, 885, 2747, 235 77 L.Ed.2d 103 S.Ct. 2254(d) (1985). "presump- But the § U.S.C.A. 748 Gregg Georgia, propriety episode v. 428 U.S. of each

prejudices”); turns on the to- 2909, 2932-33, 153, 189, tality of 96 49 L.Ed.2d the circumstances. S.Ct. Stewart, Powell, (1976) (opinion of & The decision to admit Mr. Allen’s testi- Stevens, JJ.) (“[Wjhere discretion is afford- mony, prosecutor’s and the suggestion to sentencing body grave on a so ed a matter weigh it relative values of of as the determination whether a human persons society is, think, two I error spared, should taken life be or discre- grossest of sort. While it is not per se suitably tion must directed limited be testimony unconstitutional to admit “not wholly so as to minimize the risk of arbi- directly statutory aggra- related either capricious action”); trary and v. Gardner vating factors,” or statutory mitigating Florida, 349, 358, 1197, 430 U.S. 97 S.Ct. Florida, 939, Barclay U.S. 1204-05, (1977) (“It 51 L.Ed.2d 393 of is (1983) S.Ct. 77 L.Ed.2d 1134 importance vital to the defendant and to (Stevens JJ., Powell, concurring plu- & community impose decision to rality judgment), Court has be, be, death appear sentence sentencing made clear that at stage it caprice or based reason rather than paramount importance is that the deci- Black, emotion”); Capital C. Punish- upon 1) sion be individualized and cf. based Inevitability Caprice ment: The defendant, character individual (2d 1981) (the great

Mistake 100 ed. weak- 2) the circumstances the crime. Ste- capital punishment system ness phens, 462 U.S. at 103 S.Ct. at 2744 “is riddled and saturated with un- cases). (citing permits, If a state under the discretion, disguised”). controlled however aggravating circumstances, rubric unchained, Eighth When discretion is constitutionally impermis- “factors that are Furman, peril. Amendment is at 408 U.S. totally or sentencing sible irrelevant to the 309-10, (Stewart, J., 2762-63 S.Ct. at race, process, as religion, politi- such ... defendant____due concurring). pro- cal affiliation of the require jury’s cess law would This recently ques- considered the impose decision to death be set aside.” Id. argue personal tion it is whether error to at 103 S.Ct. jury. characteristics of victim to the Kemp, Brooks v. 762 F.2d 1409-10 Here question there can be no but that (11th Cir.1985)(en banc), makes clear that attempt, was a calculated per so, while it is improper se to do guise permissible under the evidence of prob- introduction such information is aggravation, rebuttal or Stephens, 462 U.S. lematical carefully and must 878-79, 2743-44, controlled at import to prevent prejudicial “excessive focus” on process into deliberative precisely the Brooks, irrelevant matters. Douglas class-based biases Justice decried panel below, decision make nothing clear that the in Furman.12 There was in Mr. 12. In his lows: just hand, come don’t think that Carzell here, can do is the best sympathy having good their children are Moore is lacked a Now, have one and I is no Courtroom has been full of them. like Mrs. Moore comes in all way up I you’ve got a closing, sympathize of them. You’ve here father; concerned about her that in mother---- parents you the interest of their loved one I was fortunate sympathize the Allens. The going they with someone that’s [sic] prosecutor Lady today can. And I to seen them in Moore and Gentlemen come Now, can as the interest son, argued on the other out, far predict is enough family but there certainly due as Mrs. They’ve all Court, they how any fol- to is helping you’re going Moore, ing absolutely young girl there is about ing and I something about himself. Now, thing to Mr. her living circumstances been an honor loved think what Mr. when ^[******] about Teresa Allen, her then absolutely mitigation, one. to no parents by working, trying this you to discuss have been get I wanted you ought reason in the world for this killing Allen So, talk about useless a decent whatsoever____ no the reason for graduate just said was you sympathy killed, about as Carzell related absolutely education, to find out some- certainly in and I think if high no for Carzell There was putting up girl killings, mitigat- useless, to earn school, better think hav- that, way ordinarily testimony in elucidat- tionale. It noted while “the that Allen’s already well-developed peculiar persons circumstanc- ed the characteristics of in- testimony fails the crime.13 The thus permissible es of is not a im- volved” basis for requirement it fur- Stephens’ that to meet death it posing penalty because is determination of the ther an individualized danger,” “fraught with constitutional light in of the facts of appropriate sentence “where such characteristics are material to the crime. resolving genuine issue in the case” such may come before fact finder. hand, not help it could but On the other 646; Moore, Brooks, F.2d at accord prejudices and emotions inflame (“Any 762 F.2d at reference to such with a father’s testi- jury to be confronted potentially prejudicial virtuous life of his white characteristics must mony of the mercilessly greatest only and then with the daughter violated be undertaken The out this black defendant. only snuffed is care and when reference rele- sandbag testi- prosecutor’s this decision legitimate case.”). in vant to some issue prior closing arguments, mony just until argued problem The is that never Moore Mr. Allen the last witness the so that was any way; thus it this defense was not heard, prejudice. The jury exacerbated genuine issue in the case. His defense was sought, Judge Kravitch so prosecutor as to maintain his innocence and lack of panel aptly put in her dissent from the it knowledge suggest- He never deed. jury opinion, merely to let the know “not way ed that Teresa Allen was in was, urge the victim but rather who accomplice with a crime that somehow a sentence of death because jury to return awry. panel The majority went conceded Zant, the victim was.” Moore who only not the evidence for such a that Cir.1983) (11th (emphasis F.2d “slim,” defense id. at but that “de- upon original). result was based argu- did fense counsel not make such an reason, Con- as the Court and the jury.” n. 2. The ment Id. at 645 demand, upon stitution but emotion. though per- panel majority held that it was admitting justified this The trial court error, say haps cannot that “[w]e upon testi- information as relevant based balancing relevancy of Mr. judge’s mony of one witness that the safe testimony against prejudice its Allen’s appear Majik did not to have been Market I constitutionally faulty.” at 646. Id. can voce, possi- open suggesting, forced sotto error. and I do. It was clear complicity crime Allen. ble Teresa claim is another issue: Subsumed this appropriate The court reasoned it was prosecutor’s plea whether the daughter’s testify Mr. Allen as to his impose penalty of death a deterrent possible de- character so as to rebut this error. panel opinion accepted this ra- others14 constitutes reversible fense. The R.Exh. mony information that had way hardships Moore’s elicited went far Here, to have than lutely deny herself, did ended at plays belief it would be mild you, Lady trial court's 5-808-09, 811. no more emotion and testimony elsewhere, difficulty controlling come help know age be admitted was his life. But in fact it would one hundred her folks and here her eighteen, by in here to Court and full well that he did. beyond on behalf of ruling the state trial Gentlemen, come in at trial. rebuttal what limited percent someone who dis- also no Mr. Allen’s testi- came in before. her son and the of sorts to Mrs. to cumulative judge know more premised prosecutor. something testimony just seemed feeling, that he life abso- is 14. The jection] Well, penalty their time, nature if and no and if the death nature where there They er or not would cases like men, crimes like this and deterrent; prosecutor argued act, in this I talk about it not ^[******] justification, no naturally submit to people this, factors they particular imposed, then knew the follow the will commit crimes you do senseless crimes penalty is, they what is the then, play part mitigation case absolutely as follows: then it being a talk about people is not Lady punishment that if the death consequences of is reason — knew the deterrent as to wheth- not and Gentle- imposed whatsoever no reason being of this deter- [ob- 750 Stephens

This too violates because it intro- questions general

duces applicability not proper jury:

related to task of the

render an individualized determination in 879,103 hand. 462 case at U.S. S.Ct. prosecutor sought

at 2743. The here jury

induce against strike blow

crime making deterrence

example impermissible of Moore. This is unfair; it rises to the level of reversi- Donnelly v. DeChristoforo, 416

ble error. 1868, 1871,

U.S. S.Ct. (1974); Berger v. United

L.Ed.2d 431

States, U.S. 79 L.Ed. (1935); Brooks, 762 F.2d at 1399.

I believe Moore has stated three further

bases for relief. It was clear error

introduce the Ms. Allen’s fa-

ther completely because irrelevant

and extraordinarily prejudicial. It was a

grave, gross prosecutor error for the weigh

invite the comparable

worth the two lives. The error was

compounded by prosecutor’s invitation jurors to make again the streets safe

by putting Carzell Moore to death. foregoing,

For the reasons I must enter partial majority’s dissent dispo- appeal.

sition of this DOBBS, Petitioner-Appellant,

Wilburn

Cross-Appellee, KEMP,

Ralph Respondent-Appellee,

Cross-Appellant.

No. 84-8153. States Appeals,

United Court of

Eleventh Circuit.

Jan. you might just rent and that [you], you get as well kill the you but a life sentence and witnesses, you get just might just can [objection] with it as well kill them all. 5-814, nothing going because there’s happen else R.Exh. notes conduct two other by’s may Baker made occasions On ty sheriff. in Pas- placed them revocation of probation these contacts and have warranted his file example, For probation file. by’s violating the criminal Pasby for law. testi- January Pasby after on reflects petitioner he night fied that was with days, nine Baker custody in had been stole the 30.06 caliber rifle that Bleckley investigator in to an spoke eventually became the weapon. murder office, who stated County sheriff’s Pasby Arguably, aided abetted the “good” against Pasby but had a case least, very At the he was an acces- theft. Pasby “very coopera- had been added Pasby also sory after fact. admitted investigation of ranging in a ... wide tive following days several his arrest that for firearms, one of which stolen [the] January he refused to tell the on Allen weapon in the Theresa murder [sic] he about Allen mur- police what knew February on Baker a note case.” made police Pasby’s considered recalci- der. discussing Pasby’s situa- apparently after potentially trance criminal so advised sheriff, County Bleckley tion with him.52 Pasby that the sheriff had informed he Second, Pasby “per- had associated with good in a put he would word “said Pas- disreputable sons ... character.” his up because of his case comes when provided of his failure to com- evidence cooperation.” probation ply with this condition of when Pasby’s contained in The information he admitted that he had associated with file, light probation considered ex-convict, petitioner, Roosevelt defense counsel when was known to what convict, Green, escaped both before ques- began, raises petitioner’s trial several the Allen murder. after petitioner’s jury tions—none which question not an- recognized Another the record does attorney could have —about prison Pasby Georgia’s justice status criminal swer is total sentence Pasby’s testify for prose- at the he testified. The most if he system time faced refused to question Pasby still petitioner’s is whether trial. Petitioner’s at- obvious cution at probation hearing. awaiting a revocation Pasby could receive a torney knew that was, If he stolen ten-year sentence if convicted of the ample violat- provided that he had 16-8-12(a)(l) charge, rifle see O.C.G.A. § probation. of the conditions ed two pursue point not (1982);53 counsel did however, cross-examining Pasby, be- First, pro- Pasby engaged conduct could he had told that State cause been Georgia. criminal laws of scribed prove Pasby’s guilt. What probation revoked Pasby’s been attorney Pasby did not was that know prosecute him if decided to the State had testifying, he was probation at the time charge the stolen rifle and obtained probation proceedings had revocation con- in the absence of a conviction.51 Even him, against instituted and that viction, Pasby’s sentencing judge could prison if possible ten-year sentence faced probation satisfied have revoked his had, fact, probation rifle. Pas- his was revoked.54 Pasby stolen the act, accompanying suggests supra Nothing State see note 48 record fender text, mandatory barred, Pasby 10-year prison e.g., double faced a under the was somehow clause, Pasby jeopardy prosecuting for this sentence. offense. act, under The first offender which

Case Details

Case Name: Carzell Moore v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 21, 1987

Citation: 809 F.2d 702

Docket Number: 82-8683

Court Abbreviation: 11th Cir.