Charlie Benson Bowen v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

JOHNSON, Before FAY and Circuit Judges, *, Judge. and YOUNG District FAY, Judge: Circuit Petitioner, Bowen, Charlie Benson County, convicted Polk Geor- gia, rape and murder. He was sen- imprisonment tenced to life for the rape charge death charge. and to for the murder Having remedies, exhausted state court petition filed the instant for a writ corpus pursuant habeas 28 U.S.C. Respondent, Ralph Kemp, Ward- § en, Diagnostic Georgia and Treatment Cen- ter, appeals grant district court’s writ.

Respondent raises ap- three issues on peal: (1) whether the district court erred holding that the state trial charge court’s jury during culpability Bowen’s trial improperly proof shifted the burden intent, the element of violation Sand- Montana, strom v. 442 (1979), and was not doubt; beyond (2) harmless a reasonable whether holding the district court erred in * George Young, Judge designation. Honorable C. U.S. District Florida, for the sitting by Middle District of closing prosecutor’s tiary hearing dur- was held before the United ing sentencing phase of Bowen’s trial Magistrate, States who recommended that phase unfair; fundamentally rendered that relief be limited granting Bowen a new (3) and whether the district court erred in sentencing trial on the murder conviction. finding that Bowen was entitled to a new agreed The district court point, on this but sentencing sentencing jury trial since the further; (1) went it also held that unconstitutionally was drawn from com- charge given during guilt phase of posed traverse affirm list. We impermissibly Bowen’s trial shifted the jury composition ruling district court’s intent, proving burden of in violation of rulings reverse the district court’s on the Sandstrom, and that this error was not prosecutorial argument Sandstrom is- beyond doubt, harmless a reasonable sues. (2) closing arguments dur- ing the sentencing hearing rendered that I. PROCEDURAL HISTORY phase of Bowen’s trial fundamentally un- County, Bowen was indicted Polk fair. Georgia, charges raping on and murder- ing twelve-year girl.1 old The trial 11(a) THE SANDSTROMISSUE counts, and, guilty pur- found him on both Bowen asserts that the following jury Georgia’s proce- suant bifurcated trial impermissibly instruction shifted the bur- dure, thereafter him sentenced proof den of intent, on the element of imprisonment rape

life for and to death for violation of Sandstrom: appeal, Georgia murder. On direct Su- preme affirmed the underlying person Court con- The acts of a of sound mind and rape victions and sentence. The death presumed sen- discretion are prod- be the tence, however, was set aside and the case person’s uct of the will presump- but the solely was remanded for resentencing on may tion person be rebutted. A of sound State, the murder conviction. Bowen v. mind and presumed discretion is to in- 492, (1978). 241 Ga. 246 S.E.2d 322 probable tend the natural and conse- quences of his act but the presumption September 1978, In County Polk may person be rebutted. A will not be jury again sentenced death. The presumed to act criminal intention Georgia Supreme affirmed, Court Bowen v. tryor facts, but the you that is [sic] State, (1979), 244 Ga. 260 S.E.2d 855 jury, may find upon such intention Supreme and the United States Court de- words, conduct, consideration of the de- nied certiorari. Georgia, Bowen v. meanor, motive, and all other circum- 100 S.Ct. stances connected with the act for which (1980). prosecuted. the accused is Bowen then petition filed a for a writ of agree. We corpus Superior habeas Court of County. denied, Butts The writ was Court, Supreme in Franklin v. application was his Georgia Supreme Francis, U.S. —, 105 S.Ct. probable Court for a certificate of cause to (1985), L.Ed.2d 344 portion held that a of a appeal that denial. The United States Su- jury charge virtually identical to the one at preme again Court denied certiorari. Bow- issue here “undeniably created an unconsti Zant, en v. 102 S.Ct. burden-shifting tutional presumption with (1982). L.Ed.2d 692 respect to the element of intent.” Id. at -, sought Bowen thereafter relief in habeas 1973. The Court also the United rejected States District Court argument, the state’s identical to Georgia. Northern District of An eviden- by respondent one advanced in the in- (1978). 1. For a detailed discussion of the historical facts S.E.2d 322 case, State, in this see Bowen v. 241 Ga. case, any Tucker, technical infirmity (emphasis origi-

stant F.2d challenged nal) sufficiently (citing Davis, 10). instruction was 752 F.2d at 1521 & n. clarifying language regard, cured found else- nature of the defense at---, charge. important asserted at trial be an where Brooks, factor. charge 1972-77. F.2d 1390. “[BJecause explain as a whole does not read cure the reading A progeny of Davis and its re- error, we charge hold that the does not veals that when a court focuses on comport requirements with the of the Due degree intent, evidence it ex- should at_, Id., Process Clause.” 105 S.Ct. at amine the evidence without reference The district court did not err in find- particular words, defendant. In other ing that the instruction violated Sand- the court should examine the as if evidence strom. the allegedly criminal been conduct had performed by anonymous some For actor. 11(b)HARMLESS ERROR Davis, example, in where the es- defense sentially non-involvement, the Court The Supreme yet has not deter- examined the circumstances of the victim’s mined “whether an charge erroneous death and concluded “that whoever killed shifts burden of persuasion essential the victim did so with intent and malice.” element of an can offense ever be harm- Davis, 752 Tucker, F.2d at 1521. In anoth- recognize, however, less.” Id. We er case, non-involvement defense the Court members four Court have reasoned that the evidence was overwhelm- suggested that a instruction violating ing that killed whoever the victim so did cannot Sandstrom be considered harmless intentionally because “the victim died except error in “rare situations.” Con- crushing one blow the skull a blunt Johnson, 73, 87, necticut v. 103 Tucker, instrument.” 762 A F.2d 1503. 969, 977, (1983) S.Ct. (plu- similar Brooks, tack in was taken in case rality opinion). position Since this yet has which the defendant asserted accident majority Court, to command a we holding his defense. In the Sandstrom apply continue to the harmless analy- error violation to beyond be not harmless rea- context, sis the Sandstrom as we do doubt, empha- sonable the Brooks Court with most other errors of constitutional sized that the evidence of intent was not significance. Francis, See Tucker v. 762 overwhelming because of the manner (11th Cir.1985) (en F.2d banc); 1501 which the victim was Brooks, killed. v. Kemp, (11th Davis 752 F.2d F.2d 1391-93 & n. Cir.1985)(en banc). Using approach, we conclude that The Davis Court out fleshed the contours the evidence intent to kill Sheila Denise inquiry harmless error as it relates Young, case, victim this was over- Sandstrom violation. recog- Davis whelming. The child’s body nude nized that this circuit has identified two found beside a bloodied mattress in a va- situations where the harmless error rule cant house. had She been stabbed four- can invoked. Harmless analysis error face, chest, teen times about the and abdo- proper “if the evidence was overwhelming men, and died because loss of blood. guilt as to the defendant’s and if the in- Her obviously death was not the result applied struction was an element of the accident, mistake, or negligence, but rather crime which was not at issue at the trial.” was the result an “intentional” act. Id; accord, Tucker, 1502; F.2d Brooks Francis, v. 762 F.2d Moreover, Bowen, sense, Cir. very real 1985) (en banc). Davis further states that conceded discussing the issue of intent. In respect situation, to the first those “rare situations” where the Connect- analysis court’s should “focus on whether icut v. plurality might employ Johnson evidence of intent, rather than rule, the more harmless error Justice Blackmun stat- inclusive guilt, issue of is overwhelming.” ed: doubt, if granted error be harmless and therefore habeas relief. Sandstrom [A] in conceded the issue of

the defendant Id. at 246. The court reasoned that the Perini, See, v. e.g., tent. Krzeminski Sandstrom violation was harmless be- denied, Cir.], cert. concerning [6th cause the evidence the defend- 199, 66 L.Ed.2d 449 U.S. 866 [101 ant’s lack of mens rea defense was con- (1980). Washington also v. Har 84] flicting. ris, Cir.1981], F.2d 453-54 [2d similarity the instant between case denied, cert. 455 U.S. 951 [102 ends, however, and Koehler with the Sand- (1982). presenting a 71 L.Ed.2d 666] strom violations and the defenses asserted. alibi, insanity, or self- such as defense defense, The instruction condemned Koehler stat- may in some cases a defendant gives ed that “the law us a rule thumb alleged by prose admit that the act person presumed that a to intend the intentional, thereby suffi cution was consequences natural his acts.” Id. at ciently reducing the likelihood that the (emphasis original). The clear im- jury applied the erroneous instruction as port presump- of this instruction is that the permit appellate court to consider applies persons, tion sane all whether harmless. the error case, however, not. In the instant the of- Johnson, 460 U.S. at Connecticut presumption op- fensive would not become added). (emphasis Bow- 103 S.Ct. at 978 erative unless and until the found that insanity; he en’s sole defense at trial was person Bowen was “a of sound mind and repeatedly never denied that he stabbed words, discretion.” In other if the Young. By relying exclu- Sheila Denise defense, accepted insanity Bowen’s and he defense, sively an mind unsound person thus was considered a of unsound if effectively conceded that his defense mind, presume could not that he accepted, gainsaid were not it could not be probable intended the natural and conse- anything that his acts were but intentional. quences of his acts.2 But the did not readily distinguish The instant case is accept Consequently, Bowen’s defense. Koehler, F.2d 241 Engle able from jury conceivably could have relied on (6th Cir.1983), equally divided aff’d “mandatory presumption.” rebuttable Court, U.S. 104 S.Ct. —. however, By point, that Bowen’s sole de- curiam), (1984) (per factually L.Ed.2d 1 already wayside, fense had fallen upon by en similar case relied banc longer and intent no was a issue in viable Court Davis. The defendant Koehler the trial. degree of first murder. His convicted Francis, 720 F.2d 1206 Franklin v. insanity temporary “sole defense was be —, Cir.1983), alcohol, aff’d, drugs cause of the effects of (1985), Koehler, is instructive dissociative reaction.” Franklin, by way comparison. 243. The that a Sixth Circuit found that an burden-shifting instruction was court found instruction identical Sandstrom beyond respects the one at not harmless error a reasonable all material to issue challenged Apart language point of the and enter a verdict that would reflect instruction, finding. other instructions in the trial court’s that charge acceptance added). make it clear that of Bowen’s (emphasis Tr. at 463 insanity preclude would resort to the defense charge, paragraph In the next of its the court presumption. instructing the offensive After jury: instructed the (Bowen insanity on Bowen’s defense does If, however, from a consideration of the evi- challenge these instructions and we there- not you dence determine that at that time and they proper), assume the court stated: fore place investigation occasion under you did not have [I]f find defendant this trial that the was sane and thus defendant right distinguish reason to between sufficient responsible you proceed in such event would you, wrong, as I have instructed portions charge to consider the other alleged offense time of the commission of the given you, give you. or to that I have am about ..., your to considera- that would be an end added). (emphasis you stop tion the case and would at that subject court that he violated held is to be rehabilitated and here Sandstrom. society. not since the back error was harmless released into overwhelmingly preclude facts did not Yeah, guess I he can be rehabilitated. The court defendant’s accident defense. I Hitler could have been. believe presumption “A that Franklin reasoned: eight about six or if him months I’d had to kill completely intended eliminated his chained a wall talked to him and ” Franklin, of ‘no intent.’ defense F.2d beat him one side the head for a added). at 1212 (emphasis telling him you while with stick believe The lesson of is clear: A Franklin you this then him don’t beat on the other be violation will not deemed Sandstrom telling you side with a stick him believe presumption harmless if the works de- you I I don’t believe could have prive the of an defense defendant asserted rehabilitated Hitler. Here, plainly is at issue. unlike the Yeah, it’s that he could conceivable Franklin, situation in the defendant’s sole society. come back into It’s conceivable “completely defense had been eliminated” go Goodyear that he can back to work at presumption proscribed before the could Yeah, in the Mills twister room. it’s operative. have become Connecticut Cf. go Angie that he can see conceivable Johnson, at 98 n. 103 S.Ct. at Yeah, some more. it’s conceivable that J., (“The (Powell, ques- dissenting) 983 n. he let gamble, can be out to it’s conceiva- intent tion of is one of fact and ... before ble that he can out be let to drink his presumption even in- reaches marijuana, beer and smoke his and it’s predi- it struction must find facts that are a pick up that he conceivable could another presumption.”). cate for the year girl, you little twelve old if want foregoing, Based on the we that it hold you’ve him got to all do is ... beyond a reasonable doubt that the Sand- object going I’m [Defense Counsel]: error in case strom did not contribute or argument. this line Your hon- [sic] to Bowen’s murder conviction. The error or, going beyond I think this was harmless and we therefore reverse the suggest a fair bounds of and I holding contrary. district court’s that he be directed to cease from that. I your objection. The Court: overrule III. PROSECUTORIAL ARGUMENT say They he can come [The Prosecutor]: portions challenges prose- society. back into Some them would closing argument during the cutor’s sen- open welcome him with arms but I’m not. tencing phase argued of his trial. Bowen wish, They they can call me un- what petition in his filed district they christian want I’m whatever to. following passage improperly raised willing willing to. I’m to abide possibility might paroled that he your determination because it’s a deter- from a life sentence: you mination must make. up And now come we [The Prosecutor]: Tr. at 576-77. here this idea that here a man even though court, he knew that he him- The district on the basis though self ... even he in and by prosecu- was convicted other statements made own heart he to tor closing argument his die and in his desired which will be approached proposition below,3 arewe with the discussed held that Bowen’s sen- petition, specifically arguments objectionable, In his habeas Bowen con- other the court found only prosecutorial argument quoted sentencing hearing fundamentally tested rendered the supra only argu- in the text. also This was the unfair. Because the arguments court district considered trial, objected objected trial ment to counsel in sentenc- which were not to at court, however, ing hearing. respondent The district exam- does not contend here that that light challenged appro- improper, ined the was consideration we find it view, prosecutor's closing. priate arguments entire court’s to address all the the district challenged argument, regarded improper. when considered with tencing fundamentally trial was rendered tation is warranted.” Id. 1407. The disagree. prosecutor We unfair. therefore did not improperly act attempted nullify when he to Bowen’s char- The law is clear that habeas relief acterization person of himself as a who was given improper prosecutorial for will fully rehabilitated as the result of a recent arguments arguments unless those ren spiritual metamorphosis. sentencing proceeding “funda dered agree We nonetheless with the district mentally unfair.” Donnelly v. DeChristo court that the challenged argument 637,645, improp- foro, 416 U.S. 94 S.Ct. erly prosecutor’s personal stated the opin- (1974); Brooks, 40 L.Ed.2d 431 see 762 F.2d regarding ion potential Bowen’s 1400; Tucker, 1504; for reha- 762 F.2d Drake v. Court, bilitation. The Francis, a related 1457-1458 context, recently (en stated: Cir.1985) banc). To make that determi nation, reviewing prosecutor’s court must decide vouching for the credi- probability whether there is a bility reasonable expressing witnesses and his that, made, had the remarks not personal opinion been concerning guilt sentencing outcome would have been dif pose dangers: the accused two such com- Brooks, (citing ferent. 762 F.2d 1402 convey ments can impression presented Strickland v. evidence not jury, Washington, but -, 2052, 2068, 80 L.Ed.2d prosecutor, known to the supports the (1984)). charges against the defendant and can jeopardize thus right defendant’s matter, interpret As an initial we be tried solely on the basis of the evi- argument quoted content of the above as presented dence jury; to the and the more a comment on Bowen’s future dan- prosecutor’s opinion carries with it the gerousness prospects for rehabilitation imprimatur of the Government and injection possibility parole than an induce to trust the Govern- sentencing hearing. into the Throughout judgment ment’s rather than its view of sentencing hearing, defense counsel at- the evidence. tempted portray person Bowen as a who — U.S. —, United States v. Young, converted to Christ after his incarceration 1038, 1048, (1985). Addi killing for Young. Sheila Denise For ex- tionally, attorney’s personal opinions ample, Bryant, deputy J.D. “[a]n sheriff with are irrelevant sentencing jury’s County the Polk Department, Sheriff’s Brooks, task.” 762 F.2d 1408. testify called to on behalf of Bowen. Bryant jail worked at the where Bowen had It is clear analogy that the Hitler was an been housed since his arrest. Bowen’s prosecutor’s per- statement of the specifically counsel Bryant asked if he had opinion sonal regarding Bowen’s rehabilita- “any opinion regarding potential potential. [Bowen’s] Similarly, tive society.” rehabilitation and return to personal feelings concerning pos- Bowen’s minister, Tr. at Bryant, Baptist sible return society were irrelevant and opinion, testified that in truly improperly put the sentencing jury. before experienced religious had conversion and The district court also condemned now was a “model individual” who “could following arguments prosecu- made participate society and become a useful you jury] tor: “If want him return [the [to society.” member of society fine, as a rehabilitated but man] The banc court has 564; en made it clear that I my don’t want him in society;” Tr. at dangerousness consideration of future “is “I up wish had woke dead.” Id. [Bowen] proper sentencing a element in the jury’s Although argu- 575. statements these Brooks, decision.” ably 762 F.2d 1412. appropriateness “Sim- advocate the of retri- ilarly, jury may bution, ... the appropriately con- penological justification a for the sider whether penalty defendant is ... so death properly which is considered [the] unlikely to be incapaci- by jury, Brooks, 1406-1407, rehabilitated that the Tucker, (de- they improper.

the fact remains that were couched in See 762 F.2d 1507 personal opinions. argu- These the form scription of defendant as hu- “less than improper. ments therefore also were man” where supported not evidence). district court with The took issue prosecutor’s characterization of Bowen as following argument The also was devil,” product “a of the Tr. at “a by the censured district court: are “We liar,” id. at who was “no than a better - living days of Cain and the voices Id. at 569. these in beast.” We address crying Abel’s heard are out to us all turn. time voices of cry the murdered respect With to the first of these out____ they To whom do call? can The remarks, prosecutor we note that the was only call to ministers of for the law Bowen, referring specifically not but vengence recompense [sic]____ aAs was commenting insanity rather on the de juror, you are minister of The the law. general. prosecutor fense The was sim only place Young ap- Sheila Denise has to making ply point perpetra that all peal you.” argu- to is Tr. at 578-79. This of heinous tors crimes are insane that view, was, our ment not improper. society “gotten away has the old from time idea that defendant can commit vicious [a completely appropriate “It is to remind product because defendant crime] [the is] importance sentencing of its devil, defendant commits [the Tucker, decision.” 762 F.2d 1508. This is because does care.” Id. crime] [he not] precisely prosecutor here, what al- did dramatic, Although do not we view prose. beit in rather colorful He did not argument improper. this as argue any that future victim of Bowen regard prosecu-

We also do not jury’s conscience, would be on did nor statement tor’s a liar Bowen was jurors he only per- state that were the improper. used, When the term was stop killing sons who could Bowen from prosecutor arguing was to the again. Rather, id. at prose- Bowen did not act like person who was bringing point cutor was home the reality disoriented and out of with touch jurors only “ministers of the law” he Young. when killed Sheila Denise The appropriate able to exact retribution from prosecutor argued that tried Bowen to cov- slayer of Sheila Denise Young. This uper the fact that he had attacked his own proper argument. Brooks, was Cf. daughter shortly before crimes (“The F.2d 1412 reminder prosecutor which he was convicted. The stops you today’ ‘the buck with an was stated: “But he wanted to hide fact it appropriate reference to the fact that the him. If was he was out touch decision.”). must make the ultimate reality what say why did it matter. He’d sure, No, I did that. he final the district re- lied his wife it about and he lied everybody upon about lied to invalidate the sentencing hear- it____” Id. at 567. The argu- ing went as follows: “You know for a ample support ment has in the record and go proper criminal to without punishment improper. is not disgrace is a to the society we in and live every day it’s to us shown the fruits The reference to as “no bet day reap day society we in our part ter than a beast” was made as of an the bloody when we have deeds such as Bowen, argument that apparently who at alone, Tr. this occur.” at 579. Standing tempted shortly to commit suicide after he passage appear does not im- an daughter, attacked his himself believed proper argument. context, When read in that he should forfeit attacking his life for however, prosecutor his own flesh is clear that and blood. This reference it was supported by giving evidence and was not his watered-down rendition up and fulfill the willing are to stand en banc improper by the argument found Drake, F.2d 1449.4 of the law. commands in argu- challenged Immediately before Id. at 579-80. stated: prosecutor

ment Drake, light we conclude that this of justices noted one our You know of improper. Although the argument was sentimentality sickly that once said specifically invoke the prosecutor did not axe us to shirk whenever that causes abjure mercy, Georgia of to Supreme Court it is not to fall that is about justice of Drake, in he did attribute as was the case pro- that it cannot sentimentality, true opting that for “justice” a the view to sign may that it be justice, true duce upon. The mercy frowned sign a of heart but it is also a tender prejudicial as the one chal- was not as regulation. proper one not under Drake, yet lenged in see note infra a Now, society, in the words this is improper. nonetheless was punished crime be that demands justice, types have identified two We humanity false and deeds for criminal prosecutorial argument at Bowen’s sen- when the axe shudders and starts (1) prosecutor’s tencing trial: state- dangerous ready to strike is is justice (2) personal opinions; and ments of his society. and That’s peace element suggestion jus- that a “noted as it has been today. Justice true for mercy inappro- that was an years. tice” believed years and priate consideration for Bowen. Because this and had too much of we’ve Now mercy improper arguments focused We must insist not true. it’s prospects always look to main on Bowen’s rehabilitative society and not monstrous, hideous, mercy, propriety convicted of we conclude criminal and vile, outrageous acts. they jury’s influence the find- that did not Indeed, aggravating circumstances. ing of added). Immediately (emphasis Tr. at 579 ar- does not even contend that the prose- challenged argument, the after improper by the district gument found cutor stated: jury’s finding that the affected the it would take to you know what But do inhuman because it murder was horrible or stern, it, unbending, unflinching stop 17- Ga.Code Ann. involved torture. See law, punish- § stern administration Therefore, 10-30(b)(7); Tr. at 613. under something, who stand for by people ment following argu- is at last about to suffer whenever criminal Drake court found 4. Drake, sign "extremely improper.” It be a of a tender for a crime. ment heart, sign also a of one not under 1458: but it is connection, Society my regulation. please, proper demands that your Honor If jury, urging you punished, the State to submit this and criminals crime shall Georgia Georgia, Supreme warned, humanity Court of the false that starts Ga., State, page ready Hawkins justice the axe of and shudders when Court, upholding the murder and the death peace dangerous for the element to strike is case said this: "Human life in that sentence say, society.” went on to “We The Court day throughout the land with at this sacrificed mercy. much of this It is not have had too dog, espe- than the life of a more indifference criminal, only mercy. but true It looks to good dog.” They cially went on to be a if it mercy society." And if insist on we must murderer, but Cain was the first hold that hold, please, your the Court went on to Honor only to those who the last is known who was case, go for criminals and in morning’s papers. they And have read civilization, disgrace unpunished to our is a said, goes unpunished, let our crime "If this reaped fruits of it in the we have the stain of blood at least be free from skirts bloody deed occurs. frequency in which the guiltiness.” “stern, unbending, They unflinch- that a said State, please, your Honor Eberhart If laws, penal ing without administration [598], page the Justice of 47 Ga. sex, highest regard position that it is the this, Georgia said in con- Court of civilization, it is also the surest mark death sentence for murder: nection with the prevent of offenses. the commission mode however, have, sympathy no "We sentimentality springs sickly into action law, Georgia eligible paragraph, judge Bowen was for the next charged the that the penalty. death jurors judges “are the of the law and facts case____ of this You are made the exclu- That, however, inquiry. the not end does judges to credibility sive as the of witness- seen, we supra pp. 678-79, As have see the judge charged es.” Id. The also jury recent en of this in- banc decisions proved even that if state the existence improper struct that to determine whether aggravating circumstance, of an jury arguments sentencing trial fun- rendered “would be authorized to fix the pun- [still] unfair, damentally should ask we whether ishment of the imprison- defendant at life that, probability there is a reasonable ment.” Id. at 609. The judge further in- arguments, pen- absence of those the death structed that verdict forms “are not alty See, imposed. e.g., would not have been any to suggest you manner to your what Brooks, inquiry “This F.2d verdict should or should not be. That improper re- an evaluation of the involves entirely up you.” to Id. at 610. proceed- in the context the entire marks circumstances, In these we have little ing____” difficulty concluding that jury under- stood that it bore responsibility sole for the prosecutor put be improperly The sentencing decision and prosecu- that the jury personal opinions. fore the his opinions tor’s were no more than that. The however, principal argument, thrust of his opinion fairly statements of only it de jury made clear that could body prosecutor’s isolated within cide whether or not Bowen should be exe argument, represented only a small prosecutor began argument cuted. The part Any prejudice thereof. from the im- by stating necessary that you “it is proper part remarks was for the most al- jurors punishment twelve decide what prose- leviated other statements of the is to receive for the offense of [Bowen] judge’s charge. cutor and the We find no along murder.” Tr. at in his 560. Further that, probability reasonable absent the im- argument prosecutor conceded that proper opinion, statements of “I’m would willing by your to abide jury’s] [the have been sentenced to death. determination because it’s a determination you jury] must make.” Tr. at 577. [the Similarly, we hold that there is no also only place He said that “[t]he probability that prosecutor’s reasonable Young appeal Sheila Denise has justice” invocation of views of a “noted you jury].” Thereafter, Id. at 579. [the changed the sentencing outcome prosecutor specifically jury advised the First, hearing. previously noted, as that “in order to fulfill the commands thrust of the own you law this case do you whatever it unmistakeably made clear prosecutor wish.” Id. at 580. The conclud pleased. could do it Bowen’s counsel his argument by exhorting jurors ed emphasized that, also the fact under Geor search their consciences and souls and re law, gia opt could for life rather death, yet recognized turn a verdict of death, than even if it found the existence you jury] a decision must “[t]hat’s [the aggravating circumstance, after consid make.” Id. at 581. ering all the circumstances. id. 600-01 judge’s The trial also it (“[E]ven instructions made if you find that this was a vile abundantly clear that no one you save heinous act option still have the be decision, responsible for the ultimate of considering awarding cause man para- life death for Bowen. In the first that man a life sentence instead of a death graph charge, of his the judge sentence”); instructed (“[I]f you id. consider “[y]ou jury] have been the true Charlie Bowen ... as [the the evidence empowered punishment him, fix the really pictures for the you ... then ... have offense for which al- opportunity has punishment to award him a defendant] [the ready been convicted.” Id. at 605. In the prison being of life in than put rather murder”); by improper prosecutori- death, damentally unfair even for the offense say you’ve argument. (“[T]he law doesn’t al id. at 604 he put a man to death because got to I think somebody and don’t Char-

murdered OF TRA- IV. COMPOSITION THE and ... there’s death lie Bowen deserves LIST VERSE JURY he you that doesn’t here to show evidence The court concluded district that Bowen death”). importantly, the tri- Most deserve by jury to die from was sentenced drawn instructing the on miti- judge, al when unconstitutionally a list which excluded circumstances, the jury advised that gating agree. women.6 We not mitigating justify do or circumstances Supreme Decisions the offense, in the ... fairness excuse “but it court make Court and this clear that a mercy may as extenuat- be considered may challenge the reducing degree culpa- of moral defendant discriminato ing or the judge charged ry juries also state court the bility.” Id. 607. The selection of under presence aggra- protection of despite equal that clause of the fourteenth circumstances, pun- it fix the vating amendment, could Mitchell, Rose v. see 443 U.S. imprisonment “for 2993, of Bowen at life 545, (1979); ishment 99 61 S.Ct. L.Ed.2d 739 satisfactory you to any reason that Partida, 482, [the 430 97 Castaneda v. U.S. in- jury].” Id. at The court further 609. (1977); 5.Ct. 51 L.Ed.2d 498 United decision that their should structed Sneed, (11th v. 729 F.2d States 1333 Cir. all the be informed “consideration [of] 1984); Zant, v. Gibson F.2d 1543 evidence, surrounding facts all and cir- Cir.1983), amendment, the sixth which cumstances, given you law as ... and the right to be tried aby vouchsafes Finally, we by the court.” Id. at 610. as group reflecting chosen from a a fair cross- the improper in our of stated discussion community. section of the Duren v. See opinion, trial personal statements of Missouri, 439 U.S. jurors very made it that clear (1979); Louisiana, Taylor L.Ed.2d 579 v. entirely whether not up it to them was L.Ed.2d given should a death sentence.5 be (1975); Tuttle, 729 F.2d United States (11th Cir.1984), denied, cert. suggesting the improper argument The —, (1985); disapproval mercy does un- judicial of not Gibson, 1543. have noted 705 F.2d We in the our confidence outcome of dermine employs equal protection analysis sentencing hearing. accordingly We to ruling prima virtually case test identical the district court’s that Bow- facie reverse analy- sentencing hearing the one in the fair cross-section en’s was rendered fun- used Drake, Finally, distinguished prosecutor easily was not in This case is from successful. argument pas- was to pains quoted where the found that Drake took to note sentencing hearing Georgia have rendered the funda- sages Supreme were taken matter, mentally compar- initial unfair. As an involving penalty. and the death cases murder argument argument Drake and the ison of the prosecutor merely in this case referred to The case, that in the reveals the latter made instant justice;” the view of a "noted no mention limited, gar- argument is a if rather more within which these views made the context bled, prosecutor The version of former. expressed. foregoing, we con- From specifically the office the Su- Drake invoked argument to sider the in Drake be a much more argu- preme Georgia support of Court of concerning appropriate- severe statement Drake, 4; supra 762 F.2d ment. See note defendant, capital mercy ness of crime Here, only prosecutor referred a "noted prejudicial more than the and therefore much specifically justice.” prosecutor Drake The involved case. inarticulate in this Georgia Supreme Court of re- stated that mercy garded the kind adverted as not true gender disposition 6. Given discrimina- its 4; Drake, mercy. supra See F.2d 1458. note claim, district court found it unneces- tion Here, mercy, except no was made mention - sary companion that Bowen’s claim address society occasionally object be the should unconstitutionally under-repre- blacks also were mercy, as well a criminal defendant. The jury list. sented on the traverse quote prosecutor have tried in this case Court, Georgia obviously Supreme he but Tuttle, 2; sis. (1) 729 F.2d at 1327 n. defendant must show [T]he Gibson, United 1546; States 705 F.2d group alleged excluded is a “dis- Perez-Hemandez, 1384 n. 5 group community; (2) tinctive” (11th Cir.1982).7 representation group juries venires from which are selected is Court delineated not fair and reasonable in relation to the protection equal the contours of the chal Castaneda, persons number such lenge in it stated: the communi- where (3) ty; and this underrepresentation step The first is to establish that recognizable, systematic is a is due to group one that dis- exclusion of the class____ degree Next tinct of un- group jury-selection process. in the by must derrepresentation proved, Duren, 364, 439 U.S. at 99 at S.Ct. 668. proportion comparing group carefully record, reviewing After we population proportion the total correctly hold that district court con- jurors, sig- called to serve ... over a cluded that Bowen a established fourteenth period of Finally, nificant time---- ... prima amendment facie case.8 procedure a susceptible selection is Respondent concedes that since women sup- not racially abuse is neutral see recognizable, class, constitute a distinct ports presumption of discrimination Duren, 364, at 439 U.S. 99 at by S.Ct. 668 showing. raised the statistical Taylor, 419 U.S. at (citing 531, 95 S.Ct. at Castaneda, 494, 430 U.S. at at 97 S.Ct. 698); Sneed, 1335, F.2d 729 at first (citations omitted); Mitchell, 1280 443 U.S. prong of the Castaneda test has sat- been 565, recently, at 99 S.Ct. at 3005. More gravamen isfied. The quarrel of his Supreme Court forth the a set elements of court, however, the district focuses on the prima fair pre- cross-section facie case. To weight jury composition vail on a sixth amendment the court accorded the statistical challenge: disparity percentage between the of women analyses 7. The sixth and fourteenth amendment the sixth and fourteenth amendments. Id. at significant respect. prevail do differ in one To accordingly opin 210. The court set forth in its equal challenge, protection on an the defendant ion the Castaneda and Duren tests. at 210- Duren, purposeful must show discrimination. however, opinion, 11. Absent from the court's 26, 439 U.S. at n. 368 99 S.Ct. at 670 n. 26. any discussion of the burden the state must Hence, prima if the defendant makes out a facie carry prima to rebut a sixth amendment facie case, proof the burden then shifts state any findings respondent case or on whether had discriminatory show absence of intent. wary done so in this case. Because we are Id.; Castaneda, 495, 1280; U.S. at 430 97 S.Ct. at reaching upon by an issue not ruled the district Gibson, Since, however, 705 F.2d at 4. 1546 n. court, regarding jury we base our decision discriminatory intent is irrelevant to a fair composition solely issue on fourteenth amend Duren, challenge, cross-section 439 U.S. at 368 note, however, grounds. ment We that curious n. S.Ct. 99 at 670 n. a state rebut ly wanting any from the record is evidence prima only by sixth amendment facie case dem by respondent concerning significant offered a onstrating significant "that a state interest [is] justifying underrepresentation state interest manifestly primarily advanced process as those County jury of women the Polk traverse lists. pects jury selection ... that result supra puzzling note 7. This is since the disproportionate in the group." exclusion of distinctive prior record established to the district court’s 367-68, (foot Id. at 99 at 670-71 ruling replete with references to sixth amend omitted); Zant, note see Willis v. 720 F.2d See, e.g., ment (11th Cir.1983), denied, - U.S. -, fair cross-section cases. cert. State, (citation Duren), (1984); Gibson, S.E.2d at 858 104 S.Ct. 82 L.Ed.2d 849 4; Perez-Hernandez, Respondent’s Support 705 F.2d 1546 n. Brief in 672 F.2d of Answer and Return, Record, (same); 1384 n. Magis 1 at Vol. 26-29 Recommendation, Report trate’s id. at 136- petition, In his habeas Bowen contended that (Duren prima applied facie case to facts of jury panel which sentenced him to death fact, case). Bowen’, response this In to a "composed was drawn from a traverse list request by magistrate, pre-hearing filed in violation of the Constitution of the United support brief of his he contention that need Record, States.” Vol. 1 at 18. Since Bowen purposeful not show discrimination to establish specify failed to the constitutional basis for his prima Petitioner, facie case. Brief of id. at 83. complaint, the district court stated that it would jury composition evaluate claim under both respondent that the County percentage and the insists statistical dis- residing in Polk constitutionally parities significant. the traverse list. are not of women on agree. do not We die Bowen was sentenced'to jury list com- jury drawn from the traverse acknowledge Supreme We of 1977. The statistics posed in the fall pronouncing precise has eschewed mathe into evidence district admitted proving systematic matical standards for between the disparity reflect a -22.7% classes, exclusion distinct see Alexander coun- residing percentage of women Louisiana, 625, 630, on the ty percentage and the of women 1221, 1225, (1972), 31 L.Ed.2d 536 and that jury list. The record further 1977 traverse See, we have followed its lead. e.g., Gib an aber- disparity that this was not shows 1547; son, F.2d at Bryant v. Wain ration; rather, underrepresentation of Cir.1982), wright, more dramatic the four women was even denied, cert. preceding traverse lists.9 (1983). not, We do how ever, In factually write on a clean slate. of this evidence of a clear the face cases, Court, similar pattern underrepresen- female historical lists, court, County’s traverse and the former Fifth Circuit10 all tation on Polk by comparing challenge methodology. disparities are arrived at The district court County ruling following Census Bureau statistics for Polk based its on the breakdown 1970 lists, County jury gender jury pools county traverse which are of the traverse and the the Polk figures: every years. Respondent two does census revised not 1977 TRAVERSE JURY POOL pool population Disparity Class Number of of % % Males 1427 69.7% 47.5% 22.2% [+] Females 612 29.8 52.5 22.7 [-] Sex Unknown 8 .5

1975 TRAVERSE JURY POOL pool population Disparity Class Number % % Males 1290 70.6% 47.5% 23.1% [+] Females 533 28.2 52.5 24.8 [—3 Sex Unknown 4 2.2

1973 TRAVERSE JURY POOL pool population Disparity Class Number % % Males 1352 47.5% 38.7% [+] 86.2% Females 217 13.8 52.5 38.7 [-]

1971 TRAVERSE JURY POOL pool population Disparity Class Number of% of% Males 1201 76.7% 47.5% 29.2% [+] Females 365 23.3 52.5 29.2 [-]

1969 TRAVERSE JURY POOL pool population Class Disparity Number of% of% Males 1103 76.5% 47.5% 29.0% [+] Females 338 23.5 52.5 29.0 [-] Record, 1 at Vol. prior former Fifth Circuit handed down to Octo- Circuit, City

10. The Eleventh in Bonner 1, ber 1981. We also are bound Prichard, (11th Cir.1981) decisions of 1209 (en banc), Unit B of the former Fifth Circuit rendered after adopted precedent as decisions of the county have found statistical variances near fairly repre- which not be disparity present sented in this case to be thereon. 22.7% constitutionally significant. E.g., Turner selecting After the citizens to as serve Fouche, jurors, U.S. commissioners shall se- (1970) (23%); L.Ed.2d 567 Hernandez v. from the lect list a num- sufficient Texas, experienced, intelligent 98 L.Ed. ber the most (1954) (14%); Gibson, citizens, upright F.2d 1543 exceeding two- (20% 38%); number, Linahan, fifths the whole Machetti v. to serve as grand jurors. The (11th Cir.1982) (36% 42%), entire number F.2d 236 first selected, including denied, those afterwards se- cert. grand jurors, lected as shall constitute (1983); Freeman, Porter v. body jurors of traverse for the coun- (5th Cir.1978) (20.4%). 577 F.2d 329 We ty, except provided herein, as otherwise difficulty concluding therefore have no and no new names shall be added until percentage variance between the 22.7% those names originally selected have County residing women Polk and the exhausted, been completely except when percentage of women-on 1977 traverse already name which has been drawn list, immediately preceded by nearly a grand for the same juror term as a shall greater underrepresenta decade of even also be drawn juror, as traverse such tion, satisfy the second sufficient name shall returned box and prong of thé test. Castaneda another drawn in its stead. The district court also found (current Ga.Code Ann. 59-106 version at § process employed by County jury the Polk (1982)). Ga.Code Ann. 15-12-40 Al- § composing commissioners in the traverse though Court has character- susceptible list was of abuse as a tool ized this method of selection “not inher- of agree. discrimination. We ently unfair,” Turner, 396 U.S. at Georgia The law effect when the 1977 recognized it also has that the jury composed provided: traverse list was potential statute contained the for abuse. or, at 356 & n. biennially, At 538 & n. 14. least if the senior It necessary therefore, to examine the judge direct, of superior court shall testimony County jury of Polk commis- annually, at least jury board of com- process sioners determine whether the compile missioners shall and maintain they compose jury used to the traverse list a jury intelligent and revise list of and susceptible facially of abuse or not upright county citizens of the to serve as neutral. jurors. composing such list the com- represent-

missioners shall fairly select a jury Members of the commission testified intelligent ative cross section and both in the state trial court and in the upright citizens of the county from the following passage district court. The registered official voters’ list Georgia coun- summary Court’s ty recently by county as most revised jury composition state court hearing registrars board of county other largely subjective elec- underscores ap- any proach tion officials. If at it appears time taken jury commissioners: jury commissioners jury that the hearing jury challenge, At the on the list, composed, so fairly repre- not several County members the Polk sentative cross intelligent section Jury testify. Commission were called to upright and county, they citizens of the commissioners, the jury Of four are supplement by going shall such list males, out female, white one is a white and county into the personally acquaint- and one is a black The jury male. commis- ing any themselves with other citizens of following sioners testified to the effect: significantly group appellant’s identifiable in the jury was struck from a Inc., Secs., Reynolds (llth Cir.1982). that date. Stein jury panel ing, jury had been most traverse which commissioners who testified September-October, recently revised placed reiterated that no one was on the panel was drawn from a 1975 jury traverse list personally who was not list, County registration Polk a list voters known one of the commissioners. The county had voted in the voters who district court concluded that this method of election, general persons a list of last susceptible selection was abuse. books, jurisdiction, telephone under court Record, 1Vol. at 215. city primary and directories. The source Respondent argues addressing jurors from which the were drawn was prong test, the third of the Castaneda the list of voters who had voted in the district court improperly only focused on given election. The commission was last subjective attributes of the selection County instructions from the Polk brief process. Respondent urges that the court Superior Judge, including an in- incorporated should have analysis into its females, males, to have blacks struction (1) the fact that a woman and a black man jury whites on the list. The commis- jury were members of the 1977 commis- group met as a and discussed each sion sion; (2) the fact jury commission- They were con- name considered. rely ers did not exclusively'on the voters jury each sidered on basis com- registration compose list to the traverse acquaintance mission member’s with list; (3) the commissioners’ asser- specifically on the basis char- them — tions that no one was excluded from the acter, ability, capability to be a solely list on the gender. basis of race or juror. everybody approved, If Respondent argues also that the commis- placed name would be on the list. familiarity sioners’ collective nearly put anyone The commission did not everyone county prevent- could have whom list about someone on ed abuse of the method of selection. These the commission did not know some- arguments, however, miss the mark and They any investiga- did take thing. not evince a fundamental misunderstanding of get people they tive action to to know did prong both third test Castaneda commissioners, (Thejury not know. prima and the distinction between a facie duty, imposed by their aware of Code case and a rebuttal case. (1976 amendment), supple- 59-106 § by going requirement ment list out into the To fulfill the third of Cas- taneda, county personally acquainting and them- obliged Bowen was to that show county, selves with other citizens of the jury process traverse selection used in list, appeared jury if it com- potential 1977 contained the for abuse. posed, fairly representative was not a clearly (1) showing: Bowen made such a intelligent up- cross-section of the jury gender commissioners knew the of right county.) citizens of the Blacks (2) every potential juror; the commission- “(c)” designated on with the voters were, group, personally ers as a familiar panel, lists furnished to the but all of practically everyone county; them, particularly jury the black commis- (3) commissioners discussed sioner, pretty great major- knew well the amongst qualifications themselves the ity community. They of the black did person each That considered. a member of percentages not know the of male-female jury female, commission was or black County, or in Polk black-white but no one or that gather sources were used to several jury pan- was excluded traverse names, magically neither removes from race, sex; age el because of and it was process highly subjective this compo- its jury the aim of the commission to secure nent nor diminishes the ease with which people a cross-section of from the com- process manipulated. could have been munity jury panel. for the traverse jury The same true is commission- State, (em- they at that 260 S.E.2d 857-58 ers’ assertions did not discrimi- added). phasis viewed, At the testimony, properly federal habeas hear- nate. This is 688 attempt prima best to overcome the jury

at an traverse list a fair cross-section of the community. Respondent facie case discrimination. Since dis- submits if that correctly aggregation trict court concluded that Bowen the of these not facts does case, prima established a Castaneda facie case, constitute a successful rebuttal none question is only remaining whether or really compelled exists. We are to dis- holding respon- erred agree. not court to it.

dent failed rebut Initially, a the fact that black man and white woman were successfully prima

To rebut members of the 1977 jury may be showing action, commission irrelevant. The facie of unconstitutional Supreme Court present has made it clear that in the state must sufficient evidence examining case, “dispel state’s the inference of intentional rebuttal court dis presume not Castaneda, persons particu at crimination.” 430 U.S. 497- 98, lar against 97 at class would not Although S.Ct. 1281-82. there discriminate Castaneda, others the same class. judge no litmus test a rebuttal 430 which 500, case, Moreover, U.S. it clear at 97 S.Ct. at that evidence rebuttal regardless of the “showing permissible must focus on number and nature of the sources [gender] pro neutral selection utilized criteria and commissioners compile produced underrepresen potential jurors, have names of cedures” fundamental fact oppor tation of women on the traverse remains that “the list. tunity to Alexander, presented 405 discriminate U.S. at 92 at at la S.Ct. 1226; stages ter in the [jury process.” 722 Fortenberry, Guice F.2d selection] Perez-Hernandez, Alexander, Cir.1984); 405 672 U.S. at 92 at S.Ct. respondent’s F.2d at 1226. When testimony 1387. While of al rebuttal case is reduced, thus we leged discriminators should not are left be summar with the dismissed, Castaneda, ily see commissioners’ denials discrimination. at True, testimony alleged at it S.Ct. should be discrimina examined healthy judicial per with a tors is se scrutiny. amount of insufficient to rebut Perez-Hernandez, equal prima protection at facie Spe F.2d case. See Per ez-Hemandez, cifically, good is, “affirmations of faith in F.2d at 1387. It however, making being subject weighed by ... selections are insufficient to dispel prima trial systematic considering facie case court in all ex the evidence Alexander, presented. clusion.” There 405 U.S. at is a notable absence in 1226; Castaneda, any adequate explanation record of 19; Guice, pattern n. at 1282 underrepresen n. clear female 280; Gibson, F.2d at tation 705 F.2d at 1549. traverse lists in Polk applied County.- The district principles provides ample sup these record it, port finding to the evidence before for the properly district court respondent respondent found that carry failed to failed overcome Bow prima en’s purposeful burden. facie case of discrim In ination. the of words the Respondent here, argues as he did unsuc- Court, “the opportunity for discrimination court, cessfully in the district that this case present was and cannot be on this [it said] distinguishable respects is in crucial by record it was not resorted the Alexander, Castaneda, their progeny. and Alexander, commissioners.” 405 U.S. support position, respondent In of again his (quoting 92 S.Ct. at 1226 Whitus v. directs our attention to the fact that the 545, 552, Georgia, 385 U.S. commissioners neither all white (1967)). L.Ed.2d male, nor all use commissioners’ of multiple gather poten- sources to names of V. CONCLUSION jurors, tial and to the commissioners’ deni- als discrimination and their 11(b), asserted For the reasons stated in Section duty awareness the on judgment include the the grant- of the district court in corpus on the instruction concerned the intent of relief Sandstrom the de ing habeas fendant, is claim REVERSED. but Court held that the de fendant not contest the did issue intent. III, in Section For the reasons stated Davis, supra, 752 F.2d at 1521. The granting in of the court judgment district under those Court held that circumstances prosecutorial corpus on the habeas relief instruction, impermissibly which faulty claim argument is REVERSED. proof shifted the the intent burden IV, in Section For the reasons stated defendant, issue to the was harmless error. granting in of the court judgment district conclusion, reaching In its the Court relied sentencing trial AF- a new Koehler, heavily on Engle v. 707 F.2d and the case REMANDED for FIRMED (6th Cir.1983), by equally an divided aff'd relief. Bowen granting appropriate —, court, sentencing proceeding to a new is entitled (1984) curiam), (per L.Ed.2d 1 in which the properly empaneled jury. before Sixth Circuit that a viola Sandstrom held tion could be harmless error where the JOHNSON, Judge, specially con- Circuit intentional, defendant admits that an mali part dissenting curring part: killing non-partic cious occurred but claims the majority I concur IV of Section crime; ipation in the but that such a viola judgment of opinion, affirming the the dis- tion not be harmless error could where granting petitioner a new trict court defendant asserts lack of mens rea. See sentencing he trial was sentenced because Davis, 1521; supra, 752 F.2d at Engle, unconstitutionally jury. selected I supra, 11(a) majority concur in also Section Although intent was contested in Da- opinion, which holds that Sandstrom vio- vis, very much intent was at issue However, I occurred. dissent from lation petitioner instant case. raised a tem- 11(b) opinion, which Section holds defense, porary insanity which called into error, violation to be harmless Sandstrom question capacity requisite form the III, peti- holds that the and Section which intent for malice murder. the same This is prejudiced by pros- was not tioner in Engle, defense that was raised in which sentencing at the trial. ecutorial the Sixth held that Circuit a Sandstrom I. THE SANDSTROM ISSUE violation was not harmless error. 707 F.2d Nevertheless, at 246. the majority holds acknowledge I am I bound violation, which Sandstrom decisions the en banc recent given jurors the impression have some Kemp, F.2d 1515 Cir. Davis petitioner proving had burden of 1985) (en banc), Kemp, and Tucker requisite that he intent for mal- lacked (11th Cir.1985) (en banc). How- F.2d murder, ice harmless was error. ever, opinion unjustifiably majority’s concept the harmless error to a extends points faulty The majority out that the case where intent of admitted killer jury instruction in this case that one stated clearly at was issue. presumed prob- to intend the natural of his consequences able acts he is a Davis, identified two cir if person majority “sound mind”. The under cumstances which harmless error argues presumption could have might applicable vio rule Sandstrom if operative only become first de- (1) where the evidence of the de lations: sane, i.e., petitioner termined that the was (2) guilt overwhelming, fendant’s already rejected petition- if the jury had the invalid instruction concerned an where majority er’s con- insanity defense. The which was not at element crime 1521; presumption if the cludes that had become issue at trial. Lamb v. Jerni (11th Cir.1982), operative, the F.2d Sandstrom violation 1332 cert. gan, 1024, occurred, denied, 1276, thus violation rendered 460 U.S. 103 S.Ct. the Davis, (1983). faulty by petitioner’s L.Ed.2d 496 In the harmless the fact that de- —, already 2633, the intent fense on issue of had U.S. 105 S.Ct. 86 L.Ed.2d by jury. rejected (1985), been the which the Court vacated a death prosecutor sentence because the majority’s analysis The fails to address argument the same of improper used kind required the fact the State was present that was used in the ease. Be prove petitioner had a mind sound Supreme the recent cause Court decision rather, but, requisite that he had the intent rejects “prejudice” adopted the test reject- murder. if the jury for malice Even Brooks, I dissent from Section III of the petitioner’s argument temporary ed in- majority opinion. sanity, the issue of intent was not de- petitioner prove; had to intent fense that crime was an element of the that the State Rejects Preju- A. Caldwell the Brooks beyond proving had the a reason- burden dice Test Davis, supra, able 752 F.2d at 1528 doubt. vacating In the defendant’s death sen J., (Johnson, By dissenting). arguing that improper prosecutorial tence because of ar capacity he had a diminished to form gument, the applied prej Caldwell Court murder, requisite intent for malice defend- significantly udice standard that differs thereby ant did not admit that he had 11th Circuit standard formulated requisite intent if had capacity he upon majority. Brooks and relied form it. Since intent was a is- contested Brooks, In the en banc court held that to sue, holding a error Sandstrom harmless grant determine whether to relief habeas present case anis unwarranted ex- improper prosecutorial for arguments the

tension of the “harmless error” rule. reviewing court must decide whether there probability that, is a II. THE reasonable had the PROSECUTORIAL MISCON- made, remarks not been sentencing ISSUE DUCT outcome would have been different. present case, In prosecutor ar- Brooks, supra, at 1402. A “reasonable gued justice” that a “noted had stated that probability” probability is a sufficient to mercy be an inappropriate would considera- undermine confidence in the outcome. tion prosecutor for defendant. The (11th v. Kemp, Drake 762 F.2d implored to “fulfill the commands Cir.1985) (en banc); v. Strickland Wash law,” and thus inflict death ington, 668, _, penalty majority on defendant. The (1984). 80 L.Ed.2d that, despite holds concededly improp- this argument, er prosecutor did not render adopted The basis for the standard sentencing phase trial fundamen- Brooks was the notion that habeas relief unfair, tally appellant is not entitled to only should when error available has habeas ground. majority relief this affected “fundamental fairness” “prejudice” relies on the adopted test challenged proceeding. This “fundamental Circuit the en banc decision Brooks originated fairness” standard in Donnelly Kemp, Cir. DeChristoforo, 1985) (en banc), which held that a court (1974). ease, In that grant should habeas relief for Supreme set forth the standard prosecutorial argument sentencing at the reviewing corpus for petitions habeas rais- phase only if probabil- there is a reasonable ing the of a impropriety state ity that, in the argument, absence such argument phase the guilt noncapi- of a penalty the death would not have been holding tal offense. In that the relevant imposed. inquiry was whether the remark violated holding improper prosecutori- process, majority due stated that “not relief, al grounds every infirmity was not trial error or consti- ... majority disregards the recent tutes ‘failure to observe that fundamen- Court decision in Mississippi, Caldwell v. tal very concept fairness essential to the ” gument ground Brooks, citing vacating was not for justice.’ supra, at majority at death sentence. The holds that Donnelly, 416 U.S. probability that, there was no reasonable on the fundamental In order elaborate improper absent statements of the standard, the Brooks Court fairness prosecutor, Bowen would have been by the adopted prejudice standard used Supra sentenced death. at 682. in v. Wash Supreme Court Strickland concluding In Court held re supra. The Brooks ington, Strickland, required ad marks reversal of the death sen in “while the Court tence, specific Amendment viola the Caldwell Court did not refer to dressing a Sixth tion, probability” fairness’ standard. The recognized that ‘fundamental “reasonable consistently emphasized of habeas Court is the central concern of writ Brooks, Eighth heightened supra, citing requires Amendment corpus.” at _, Strickland, reliability capital 104 S.Ct. at standard of sen Caldwell, tencing supra, decision. 80 L.Ed.2d at 700. The Brooks See at —, —, continued, “Thus, the Court U.S. 105 S.Ct. at [Strickland ] fairness, concluded, acknowledged that fundamental The Court “Because we cannot say adopted Donnelly, is that this effort had no effect on the the same standard decision, reviewing sentencing errors that decision governing principle does not reliability meet The use the standard of of counsel. [Strickland Court’s] at —, probability’ Eighth requires.” test to elabo Amendment Id. of the ‘reasonable underlying principle suggests its 105 S.Ct. at 2646. rate the funda applicability to other areas which probability” The “reasonable test Brooks, guide.” is the su mental fairness adopted by the en court in banc Brooks short, held that pra, at 1401. In Brooks incompatible with for three rea- Caldwell test fundamental fair the standard used to First, probability” sons. “reasonable in the context of ineffective assistance ness test is inconsistent with the Caldwell equally applicable in counsel claims is language in Court’s the final section of the prosecutorial misconduct the context that, majority opinion. The Court held capital claims in cases. sentencing phase satisfy Eighth adoption heightened of the “reason- Amendment’s standard of relia- support In of its test, reviewing probability” bility, the Brooks Court court must be able to able say improper argument that the “had no argued that that test was “consistent with sentencing on the decision.” Id. Donnelly the standards discussed effect subsequent applying the funda- This is a far more difficult standard for the with eases satisfy The than the standard. mental fairness standard.” Id. Court State Brooks that, standard, places claimed that those cases indicated Unlike Brooks which determining improper argument preju- the burden on the defendant to show whether dice, places impact sentencing on the standard the bur- prejudicial had a Caldwell prejudice proceeding, necessary proving it to look be- den of the absence Prejudice presumed un- yond types argument used and to the State. will be reviewing say strength of the evidence as well. less the court can that the look at the concluded, improper argument had no effect on the The Court “Even addition, greatly exceeding propriety jury’s decision. id. bounds of fundamentally presumption unfair in the cannot overcome this will not be State overwhelming merely by showing with that there is a “reason- guilt phase of a case probability probability” improper argu- low that the evidence because of the able impact.” at 1401-02 ment did not affect the outcome. The argument’s omitted). (footnote prove improper argu- must that the State ment “had no effect.” majority present case relies on adopted in in deter- The second reason the Brooks standard the standard Brooks mining incompatible ar- is that Caldwell prosecutorial probabili specific in treated the “reasonable Caldwell indicates flaws the Brooks a to be ty” way applied. test as monolithic standard the Brooks standard has been applied every corpus proceeding, in habeas argued The dissent Caldwell that the complained regardless of whether the error impact prosecutor’s the argument re Fifth, Sixth, the or of occurred under garding appellate by was mitigated review Brooks, Eighth supra, Amendment. See prosecutorial later comments that the alluding specifically at 1399-1401. In to played important an sentencing role the reliability the for heightened need the — Caldwell, process. supra, U.S. at capital sentencing required by phase the —, J., (Rehnquist, 105 S.Ct. at 2650 dis Amendment, Eighth the Caldwell Court However, senting). majority explicitly the prejudice suggested that different tests are dissent, rejected argument of the on required types for the constitu various that, grounds if “even challenges tional fundamental fair later comments leave the did — Caldwell, supra, ness of state a trial. they important view that had an role [the] at —, U.S. at S.Ct. play, prosecutor retract, did not The third reason Brooks standard undermine, previous [improper even that, longer no should be followed is al Caldwell, supra, at — n. comment].” though requires reviewing that standard a at 2645 n. The Court also strength court to take into account the emphasized the judge fact that the trial defendant, against evidence failed to strong issue curative instructions Brooks, 1401-02, supra, at the Caldwell specifically improper argu directed at the solely type Court at the of argu looked at —, ment. Id. 105 S.Ct. at 2645. used, ment in the context of the entire present places The majority case instructions, in determining heavy emphasis “[a]ny on the fact sentencing phase might whether the have prejudice from improper remarks was been rendered unfair. The Caldwell Court part for by the most other state alleviated strength did not take the of the evidence prosecutor judge’s ments of the and the into determining account all in whether charge.” Supra majority at 682. The improper argument affected the fair ignores significance of the fact that sentencing phase. ness of the See Cald neither judge prosecutor the trial nor the well, at —, supra, any attempt made cure or retract contrary, S.Ct. at 2644-45. On the specific majority remarks that the concedes suggested reviewing Court that a Yet, improper. clearly Caldwell could accurately determine whether a general holds that remarks to the effect jury might have returned different sen that the responsibility bears for the argument. tence in the improper absence of sentencing decision are not sufficient said, beyond question Court “It is prejudice pros cure the caused court, an appellate performing its task with arguments ecutorial diminishing aimed at correctness, a presumption of would be rel jury’s sense of responsibility. Cald atively incapable evaluating ‘literally well, supra, at —n. capital factors countless that [a sentencer] n. 7. making largely ... what is consider[s]’ judgment moral of the defendant’s desert.” - B. Caldwell Controls Outcome Id. at n. 105 S.Ct. at 2645 n. 7 the Present Case (citation omitted). short, In the Caldwell applied prejudice standard more Caldwell, In prosecutor argued closely resembling the harmless error test responsibility would not bear Chapman California, imposition sentence, of a death because (1967), L.Ed.2d than the a death automatically sentence would prejudice test of Strickland. appellate reviewed an court. The Court indicating capital sentencing addition to said that a jury, up the Brooks made prejudice wrongly adopted, standard was placed very individuals in a unfamiliar issues, closing argument I very disagree and the on to make called situation choice, might petitioner is entitled to relief and uncomfortable based difficult to diminish the opportunity alleged welcome Fourteenth Amendment vio- delegate its deci- its role and importance of underrepresentation lation because authority to others. The making sion pool. sentencing jury in the women said, Court out, points challenges by As the Court especially serious problem is This in proceed- defendants state court criminal jury that the alternative the is told when discriminatory ju- ings to the selection justices of the are the makers decision recognized Equal under the ries have been plau- certainly It is supreme court. state the Fourteenth Protection Clause many jurors will be to believe that sible and the “fair cross-section” re- Amendment legal respected these tempted to view quirement implicit in the Sixth Amendment “right” a having as more of authorities impartial jury. right to an The district than important decision to make such Bowen, held that a male con- court below jury. has the raping murdering a twelve victed of at —, at 2642. S.Ct. female, year equal protec- was denied old in impropriety Cald- The essence sentencing in tion of the laws because implication in the the well was underrepresented females were on the 1977 have the argument jury that the did not sentencing traverse list from which his deciding responsibility for whether primary The district court was selected. thus but, appropriate was the death sentence unnecessary found it to evaluate Bowen’s rather, impose duty that the had claim under the Sixth Amendment. In af- give in order to effect the death sentence court, firming majority the district the like- who of other authorities to the decision purports only to reach wise Fourteenth judge appropriate- were better able to question. Amendment penalty. that Such authorities ness of only justices of a might include not my opinion, logic Supreme In both prosecu- supreme court but also the state compel precedent the conclusion that Court tor, grand jury, police. or assert, standing equal Bowen lacks prosecutor present In case the ar- grounds, that women un- protection only supreme a noted state gued not jury pool. in In derrepresented this already justice had determined adopt reasoning regard, I would penalty appropriate for the the death Gee, Judge writing Fifth Cir- new defendant, also that the law itself com- but cuit, Cronn, in 717 F.2d United States manded such a sentence. This Cir.1983). (5th equal Petitioner’s own condemned in beyond went what Court obviously protection rights were not violat- danger Caldwell. Since underrepre- by alleged case ed importance to minimize the might choose women, justifi- and there is no sentation high present as in the its role was at least standing. permitting jus cation for tertii Caldwell, analysis case as it was Id. at 169-170. Supreme deciding used in to vacate recognize I that this Circuit has reached the death sentence in should con- Caldwell contrary begin- in a line of cases result present case. Be- trol the outcome ning with States v. Perez-Hernan- United say cause we cannot (11th Cir.1982), dez, 672 F.2d 1385-86 had no ef- arguments present in the case which, decision, Cronn, equal protection sentencing I like involve jury’s fect on the grand challenges to the selection of the dissent. jury foremen. See also United States v. YOUNG, Judge, C. District GEORGE (11th Holman, Cir. 680 F.2d 1355-56 concurring part dissenting part: 1982); Cross, 780 F.2d States v. United (11th Cir.1983); 633-34 United States concurring analysis While the Court’s Sneed, Cir. 729 F.2d and conclusion on each Sandstrom 1984). by per- by The Fifth Circuit in it in the absence Crown reversal suasively points “apparent out con- Eleventh Circuit en banc an interven among Supreme Court deci- ing contrary flict” recent Supreme decision sions, perceived in this Court Perez- which Holman, Court. United States v. Hernandez, misreading stems from a at 1356 11. I Hobby n. construe v. United opinion in plurality Justice Marshall’s Pe- States, —, Kiff, 407 ters v. (1984), a contrary L.Ed.2d 260 interven (1972). opinion did L.Ed.2d Peters ing which decision mandates re-assess standing equal protec- “in an not discuss holding. ment of the Perez context,” tion as Perez-Hernandez states Hobby, Court evaluated (672 indeed, 1385); F.2d at the Peters Court challenge of a white male to under- equal protection did not reach the issue. representation of blacks and women 5, at 92 407 U.S. 497 n. S.Ct. at 2165 n. 5. position grand jury of foreman due standing per- The discussion of in Peters process challenge. holding that such tains, rather, grand jury- composition to discrimination would not warrant reversal challenges process under due the clause petitioner’s of and dismissal of conviction Amendment, which—like Sixth fair cross- him, the against Supreme indictment challenges petit jury composi- to section sought distinguish previous its by any be raised criminal de- tion— Mitchell, ruling supra, in Rose v. as fol- fendant, regardless of his circumstances. lows: 504, Cronn, at Id. at 92 S.Ct. upon “Petitioners’ reliance is mis- Rose 167-68, 717 F.2d at and nn. 4 and 6. Chief placed. brought Rose involved claim Burger’s in Justice dissent Peters noted: Negro by two defendants under opinion “While the of Mr. Justice Marshall Equal Protection Clause. As members relying from on Equal refrains Protec- allegedly of the class excluded from ser- Clause, petitioner’s tion it concludes that if grand foremen, vice as the Rose true, allegations are he has. been denied defendants had injuries suffered the process due law.” 407 at U.S. 92 stigmatization prejudice and associated Cross, 2172. In S.Ct. at States v. United Equal with racial discrimination. The 708 F.2d at 633 n. this Court acknowl- long Clause held Protection has been edged plurality opinion Peters “an- provide a mechanism for the vindication alyzed grand exclusion blacks from of such claims in the context of chal- process.” service as a violation due lenges grand petit See, juries. added). (Emphasis e.g., Partida, Castaneda v. U.S. hand, other in equal protec- On the (1977); 51 L.Ed.2d S.Ct. [97 498] Partida, tion cases of Castaneda v. Texas, Hernandez v. U.S. [74 482, 494, 97 S.Ct. (1954); 98 L.Ed. Strauder 866] (1977), Mitchell, L.Ed.2d 498 and Rose v. Virginia, v. West 100 U.S. 303 Otto [10 545, 565, 2993, 3005, (1880). Petitioner, L.Ed. 664] (1979), L.Ed.2d 739 Court un- however, alleged only has that the exclu- equivocally stated that Negroes sion of women and equal protection “in order show position grand jury foreman violates in violation has occurred the context of right his to fundamental fairness under jury selection, grand the defendant must the Due Process Clause. As we have procedure employed show result- noted, in discrimination selection underrepresentation ed substantial grand jury federal foreman cannot be race or group the identifiable significant impact upon said to have a which he belongs." process due interests of criminal de- Added). (Emphasis Thus, petition- fendants. the nature of But progeny alleged injury whether Perez its er’s and the constitutional not, correctly panel decided distinguish bound basis of his claim his circum- findings stances from those defendants absence of or a ruling by judge Rose. district issue. 5?; jjs ^[*] sj: ^[*] For the reasons set forth above, I dissent to Part majority opinion; IV of the I would Given nature constitutional grant reverse the district court’s of a new Rose, injury peculiar manner sentencing trial and would remand for a grand jury which the Tennessee selection consideration of issues unresolved in operated, authority granted including, district court but not limited foreman, one who served as the Court to, the Sixth Amendment fair cross-section assumed in Rose discrimination with claim. regard to the selection would foreman’s require setting subsequent aside of a

conviction, if the ‘just as discrimination

proved has tainted selection of the grand jury

entire venire.’ Rose v. Mitch-

ell, supra 551-52, n. 4 [443 U.S.] [99 2997-98, n. No such as- 4]. here, however,

sumption appropriate very context of the different due America, UNITED STATES process challenge a white male to the Plaintiff-Appellee, grand selection of of federal foremen juries.” at —, 104 S.Ct. at 3098- McGUINNESS, Daniel C. 99, 82 L.Ed.2d at 267-69. Defendant-Appellant. then, Hobby, makes clear and firm the Su- No. 84-3227. preme previously require- Court’s stated petitioner seeking ment that a to raise an Appeals, United States Court protection equal challenge must be a mem- Eleventh Circuit. group ber of the allegedly race or under- represented juries grand juries. By Aug. 26, 1985. implication, one who is not a member of the underrepresented group standing lacks

raise such challenge. addition, Hobby demonstrates that

there is a difference in the evaluation of a process

due violation claim that of an

equal protection claim. violation Discrimi grand jury

nation selection of a foreman equal protection

could anbe violation {Rose Mitchell, supra) but would not be a due

process (Hobby States, violation v. United

supra). Likewise, may, in there some cases jury composition disparities, be a differ

ence in depending upon the results whether

the challenges are examined under the equal

Fourteenth protection Amendment

standard or the Sixth Amendment fair has, Judge Fay

cross-section standard. Court, solely rested his decision on the

Fourteenth Amendment claim and declined

to decide challenge the Sixth Amendment

Case Details

Case Name: Charlie Benson Bowen v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 6, 1985

Citation: 769 F.2d 672

Docket Number: 84-8327

Court Abbreviation: 11th Cir.