David Peek v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

672 issues and resolved both properly

court PEEK, Petitioner-Appellant, affirm. David v. situation presents a factual This case KEMP, Warden, Ralph Georgia Diagnos- this court predecessor to to one the similar Center, tic and Classification Condominium encountered Chatham Respondent-Appellee. Inc., Century Village, v. Associations cases, Cir.1979). (5th In both F.2d 1002 No. 82-8713. that condominium ven-

plaintiffs alleged Appeals, United States Court prohibition antitrust dors violated the Eleventh Circuit. by requiring tying arrangements against 26, Oct. to lease an purchasers of condominiums areas in con- interest common individual Granting Rehearing Opinion on This case dif- purchase. their nection with 5,1985. Feb. Chatham, In however. Chat-

fers from dismissing the reviewed an order

ham we here we re- jurisdiction;

case for lack granting judgment n.o.v.

view an order order, judge issuing the district

In failed to: that Moskowitz and Koltun

held

(1) legally cogni- prove the existence of two (2) products; separate and distinct

zable possessed economic

prove that defendants market; (3) tying product in the

power effects; (4)

prove anticompetitive In on interstate commerce.

prove an effect illegal existence of an

order to establish the (and

tying arrangement, each element oth-

ers) plaintiff. must be shown See Club, Cowboys Football

Driskill v. Dallas Cir.1974). (5th

Inc., In this 498 F.2d 321

case, Driskill, plaintiffs failed to as in or anticom- any showing

make of coercion effects, id. at and the

petitive see or effect

factfinder cannot infer coercion tie-in, plaintiffs of a

from the existence contend, States Steel

apparently United Enterprises, 429 U.S.

Corp. v. Fortner 861, 866-67,

610, 617-18, 97 S.Ct. (Fortner II). (1977) It is thus

L.Ed.2d 80 judge properly en-

clear that the district therefore judgment n.o.v. and we

tered and Koltun’s

need not address Moskowitz’ entering erred in that the contentions Vance, Judge, separate filed Circuit grounds forth. the other set judgment on dissenting in concurring part opinion part. judge’s order We also find no error judgment

denying class certification. The

AFFIRMED. Kendall, III,

George H. F. Russell Can- an, Atlanta, Ga., petitioner-appellant. Westmoreland, Mary B. Du- Nicholas G. mich, Hill, Jr., Gen., Attys. William B. Asst. Atlanta, Ga., for respondent-appellee. CLARK, Before VANCE Circuit Judges, *, and SWYGERT Circuit Senior Judge.

CLARK, Judge: Circuit 28, 1976, July On David Peek was tried on two counts of murder and one count of kidnapping superior in court in Greene County, Georgia. The reached a ver- guilty dict of on all counts at 12:45a.m. the following day. penalty phase com- * Swygert, Honorable Luther M. tion. U.S. Circuit Circuit, Judge sitting by designa- for the Seventh upon right. All If all immediately return will

menced verdict, get to die. the indictment and all of the and Peek was sentenced evidence Jury. His and death sentences with and send it out to the convictions on respect to the murders were affirmed IN COURT IS RECESS AWAITING denied appeal,1 direct relief was THE JURY’S VERDICT. proceedings, again state habeas AT MID- JURY IS BACK 12:00 of district the Middle District court from NIGHT. petition corpus Georgia on a for habeas Foreman, THE Mr. COURT: has the § under U.S.C. Jury reached a verdict? in primary The defendant’s claim this No, MR. sir. FOREMAN: appeal that the court was mistak- is district right, All THE COURT: sir. holding in error en that no constitutional present MR. FOREMAN: Not County when the trial occurred Greene time. juror, replaced regular court excused and a Greeson, juror, with an alternate Chester right, THE All me COURT: sir. Let Weinstein, Ben in the final moments of Gentlemen, inquiry, make this Ladies and mur- Affirming deliberations. Peek’s course, afternoon, I of as said this don’t require that hold der conviction would we any want of to feel like we are 1) procedure a trial in which constitutional trying put anybody to between the rock juror the lone to reserve a reasonable spot just pressure you and the hard or guilt doubt as to the defendant’s is excused doing anything. into We have the rooms 2) upset; because he became nervous and very easily reserved and we can accomo- juror being is excused without first now, date to send for whatever [sic] court, interrogated by the trial notwith- stay overnight need if feel it’s standing juror that the was available for because, going problem, to be a 3) purpose; the decision to excuse the course, my previous as indicated juror is assented to defendant’s counsel charge, phase only this is the first presence and without outside defendant’s this, your depending findings on there defendant; 4) consultation with the So, may phase. just a second I’m be replaced by an alternate with- trying inquire as to whether or any supplemental out instruction whatsoev- go would like to ahead and jurors, er to the alternate or the other get bed and some rest and start back guilty after which a verdict moments morning? This returned. we cannot do. MR. I think that if FOREMAN: we could understanding For a fuller of the circum- Maybe few more minutes? fif- stances which Greeson was ex- teen? cused, begin by reproducing we here the right, said, THE COURT: All sir. As I proceeding entire as shown on the record course, it, phase there is another beginning p.m., at 10:27 re- when depending finding on what the is in the tired to consider its verdict. said, again first and as I I want to make THE JURY THE IS OUT OF COURT- trying it clear to that I am not AT ROOM 10:27 P.M. any pressure anybody you. or all of Briley, any exceptions THE Mr. COURT: say, give you if you But a few more Charge to the on behalf of the State? minutes, let’s do that and see what can None, MR. BRILEY: Honor. Your it. haven’t been come of We out that Any exceptions THE to the COURT: long, getting late but it’s now and know Charge on behalf of the Defendant? you, usually for a lot of it’s later than None, stay up.

MR. ASHLEY: Your Honor. State, appeal, Georgia Supreme re- 1. On Court conviction. Peek v. 239 Ga. kidnapping (1977). versed his death sentence on the S.E.2d 12 Yes, sir. Okay. Well, OF THE THE COURT: IS OUT COURT- THE JURY then, AT go. FOR DELIBERATIONS we’ll let him Let him ROOM come on A.M. 12:03 out then. Briley, are there COURT: Mr.

THE just MR. You FOREMAN: want me to Charge? exceptions Supplemental to the tell him he can leave? None, Your Honor. BRILEY: MR. Yes, THE sir. COURT: guess can call I don’t we MR. Because he FOREMAN: doesn’t Re-Charge. Ashley, any objec- big want to make a to do about it. Charge? Supplemental tions Well, Right. haven’t of, know MR. ASHLEY: None got him go backdoor for out. Mr. Judge. Weinstein? you, let the COURT: Thank Court Yes, MR. sir. WEINSTEIN: at ease. MR. FOREMAN: Can tell him the IS IN AWAITING COURT RECESS gist talking of what we’ve been about? JURY’S VERDICT. right. All We just have- THE JURY ASKS THE FOREMAN OF agreement excused a by Juror of both QUESTION AT 12:35 THE COURT by Counsel Court on and word that A.M. here, so, has come Room out of the right. All Let the record THE COURT: in we need to ask and take his that the Foreman has come out and show place, please, sir. Geesling [sic], indicated that Mr. Chester right, All MR. sir. WEINSTEIN: feels, definitely extremely is nervous he WEINSTEIN, MR. THE ALTERNATE breaking point that almost at the and GOES INTO THE JURY ROOM FOR they they trying have been to do what AT 12:42 DELIBERATIONS A.M. placate keep something him and could THE JURY IS BACK AT 12:45 A.M. happening Geesling Mr. and that Foreman, THE COURT: Mr. has the requested he has that would like to [sic] Jury reached its verdicts? believe, Briley, excused and Mr. be Yes, sir, MR. FOREMAN: we have. that stipulate— said will pp. Vol. II stipulate BRILEY: will State’s Exhibit No. at MR. The State 230-33. may be excused. surrounding juror The facts Greeson’s circumstances, ASHLEY: Under the MR. replacement, by dismissal and dimmed stipulate may Defense will that he be interval, two-year amplified were at a state excused. hearing. Superior habeas The Court of right, THE COURT: All sir. County, Georgia, Butts the court which petition, BRILEY: Let’s substitute the first entertained the state habeas MR. did alternate, specific findings is that— make of not fact arid con respect primary of to this Well, clusions law with ought think we the, question; rather determination in its is have the Foreman to advise after leaves, general terms and narrative in form.2 Geesling to advise the The [sic] going jury panel just, you that we are court found that after had not deliber know, random, because, hours, excusing start at on for three ated its verdict they I think aware as I under- are all “emerged foreman from the room and say it from of the situa- stand what judge jurors of the told that one was sick,” tion— judge that after the trial announced Greeson was unable to continue as a Everybody just else MR. FOREMAN: is was fine, mean, “the first alternate sent to the juror, but I it is verdict re guilty room and a was fellow. pendix opinion. respecting A of this The state habeas order 2. court’s juror reproduced Ap- of dismissal Greeson by the record.” 449 U.S. at 551 later”; ported that the few minutes turned a at it had been S.Ct. err “when 771]. did not [101 trial ill to the court appear made to at U.S. at 102 S.Ct. then The court to continue.” and unable case, In the instant the state habeas had a reason although Greeson stated court, evidentiary hearing, made after an “he guilt, Peek’s concerning doubt able re findings respect to the purported with form of that doubt asserting by alternate placement Greeson was, jury room but in the certain vote2a of the first Because none Weinstein. con physical and emotional of his because § 2254(d) present, factors listed seven in the deliberations participating dition not those find directs us to defer to Mata II concluded: court all.” The habeas fairly supported they are not ings unless juror replacement “[T]he Upon a close examination by the record. done for the first alternate Weinstein occurring during the historical facts followed com procedure good cause. shown both the trial record trial as Georgia statutes and applicable plied with say hearing, we are unable to the habeas any federal constitutional not violate “findings” find that all the state habeas on to The court went rights Petitioner.” record, and therefore we support Weinstein testified that “alternate state presumption of give need not them the with the the evidence that he went over they to which would otherwise correctness and concluded that jurors,” other (The whom the magistrate entitled. jury deliberated with of time the amount federal habeas returning court referred the district Weinstein before alternate legal signifi findings and of “no claim based his recommended guilty verdict was conclusions, adopted by cited in the law was which were cance.” No decisional court, upon the court’s conclusions. court record support of district the state submitted to the state and the evidence II no additional court. He conducted habeas decision, reaching a evidentiary hearing. findings parallel At the threshold of His provision conclude, with the findings. we face the conformance the state court's We § Mata, v. 449 2254. Sumner therefore, findings, of 28 U.S.C. magistrate’s the 764, 539, 66 L.Ed.2d 101 S.Ct. U.S. respect and consider though entitled to our Mata, I), (1981)(Mata and v. Sumner ation, binding per upon effect se have no 71 L.Ed.2d 480 102 S.Ct. U.S. decision.) our II, II). Supreme (1982)(Mata In Mata the supplementation the The trial record and holding prior the in its characterized Court court de- evidence submitted to the habeas as follows: decision story significantly different from the pict a § 2254(d)requires that 28 U.S.C. We-held impressions gained from the state habeas proceedings to in habeas federal courts bring commentary. To court’s factual of correctness to presumption accord focus, to the evi- story into full we refer findings____ We held court the state court. dence submitted to the habeas concludes that a if a federal court testified that deliberations Juror Greeson does not con- of correctness presumption way to be had been under for what seemed explana- trol, provide a written it must hours, began get when he three or four it con- reasoning that led of the' tion his sickness He indicated that “sick.”3 the seven fac- one or more of clude that illness, physical § but rather was due not present or the in 2254 were tors listed (H.C. I “pressure of the decision.” to the reasoning led it to conclude which 21). further recalled that be- fairly sup- Tr. Greeson finding was “not the state 2a This pro- testimony contrary at the state habeas finding 3. Greeson’s fact to habeas of part Ap- reproduced ceedings in relevant testimony jury corpus of foreman Smith. See opinion. pendix B of this C, Appendix p. prior thirty forty “uncooperative” minutes to his tween and and that Greeson’s con- removal, jury had shifted to eleven to duct “my was not idea jury delibera- being guilt, he the one one favor (H.C. 52-53). tion.” I Tr. Smith also indi- (H.C. 22-24). holdout. I Tr. Greeson testi- cated that everyone agreed had to a verdict particular fied that he remembered Greeson, and that Greeson ceased to portion of the trial court’s instruction participate deliberations, although he charging jury acquit of the members continued to cast his vote in favor of ac- they defendant if harbored reasonable quittal. foreperson also testified that guilt; doubt as to the defendant’s Greeson Greeson, spoke and that it was the further testified that he had such a doubt jury consensus of the that he be excused. respect guilt of Peek. While Smith first remembered testifying passed recalled that time Greeson that he then told the trial court that Gree- one, jury with the deadlocked at eleven to sick, son was he corrected himself and stat- upset his nervousness and condition intensi- ed he probably told the court that began fied and it to seem as if he could not Greeson extremely (H.C. nervous. foreperson make a decision. The discussed 44). Tr. He further pos- indicated that the problem agreed with him and two sibility postponing deliberations until best if were Greeson excused. morning was never Finally, discussed. foreperson Greeson recollected that Smith recalled that after alternate Wein- then left the room to talk over the room, stein entered a verdict was judge, shortly matter with the ther- time,” reached in a “short in fifteen or eafter returned and notified Greeson that twenty minutes. he had been dismissed. Prior to dis- counsel, The defendant’s trial W. Sea missal, speak he did not with the trial Jr., Ashley, borne testified. He indicated court, nor was he voir any party. dired judge the trial summoned him and the dis He further recalled that go as he left to attorney trict over to the side of the bench home, he judge encountered the trial where judge and the foreman were asked him if he needed to talking. Counsel recalled the foreman stat hospital. responded, “No. ing that one jurors I’ll had withdrawn bit,” believe be all in a little pale. and sheriff, drove himself become The county home. He also testified that outside, began party conversation, once he fifth to feel the then better. left to (H.C. 20-21). I Tr. confirm whether any past Greeson had (H.C. problems. 93). medical I Tr. When Smith, jury foreman, Lawrence the testi shortly thereafter, the sheriff returned he fied after Greeson.4 He recalled that at history said that Greeson had a having midnight, requested when he an additional epilepsy.5 mild form of The court asked deliberation, fifteen minutes for “a divi both the attorney district and counsel jury sion” existed in the and that he had no whether Greeson should be excused. recollection as to whether Greeson was ill oppose Counsel testified that he (H.C. did not the 38-39). at the time. I Tr. He also excusal because he understood that midnight, testified that around the Greeson’s complexion jury (H.C. began per split reddened and he was nine to three. I Tr. spire frequent 93). and make trips that, to the rest He further testified had he room. Smith stated that Greeson became jury split known that the was eleven to testimony proceed- 4. Smith’s at the state interrogated. habeas apparent could be It is that the ings reproduced part Appendix in in relevant judge thought juror trial the was named Gees- opinion. C of this ling 675). supra, page text {see There is no reason to think others were not mistaken. At testimony completely 5. This discounted hearing, the habeas Greeson testified he had no juror being the fact that no one knew which physical ailments at the time of the trial but panel jurors Geesling excused. The had and diagnosed having since that time had been subpoenaed Greeson. Both were to the state hypertension. mild hearing habeas to ensure the excused replaced that after the court had testified one, Gree not have concurred he would Weinstein, jury with alternate the he Greeson discharge. He also remarked son’s guilty “plus reached its verdict of to in petitioner prior not confer (H.C. 12). II Tr. minus five minutes.” objection he had no forming court that the of Greeson.6 to the excusal judge the trial recalled deposition, In his midnight, jurors all the had been the that at he had been testified that Weinstein they requested had fif- jury the box when alternate, in the court and had been first (Duke deliberate. placed on teen more minutes to he was 9:00 a.m. until house from time, 22). he testified Dep. During that a.m., following morni the jury at 3:00 the nothing unusual 57, 74). that he noticed about (H.C. expressed He I Tr. ng.7 jury the jurors. He recalled that elapsed much time as to how confusion deliberating roughly three jury had been he the the time that entered 5). (Duke Dep. He was at this time. While hours a verdict was reached. room until having a informed that one period of time was “a first that that he stated foreperson came into the time,” problem when the recalled that it was very short he juror- and said one informed of the courtroom long enough for him to be (Duke 3). 59-60). shape.” Dep. Af- (H.C. “mighty Tr. bad high points of the case. that, calling attorney the and defense Yet, upon entry ter district he later confirmed bench, learned that the room, guilt counsel to the the decision on jury into the Greeson, was nervous rather than juror, not until long,” take and that was “didn’t (Duke 6). Dep. ill. At this jury physically the phase of the trial that penalty the present also point, Wyatt, in his Sheriff who was highlights of the case went over the conference, that he 77-78). the bench stated (H.C. I presence. Tr. history epi- thought that had a Greeson state hearing held before the At a second seizures, leptic sent the sher- habeas court on December (Duke 4). Dep. After iff to check on this. prosecut- testimony of the state offered the returned, discharged court the sheriff attorney deposition of the trial ing objection of either juror Greeson without prosecutor The recalled when court. (Duke 4-6). party. Dep. He indicated foreperson approached the bench he excused to avert the risk Greeson problem with a explain to the court the seizure, epileptic into called juror, he and defense counsel were he stated that his decision not to inter- bench, participated in the but neither made in rogate personally was 5). (H.C. II He recalled Tr. discussion. jur- light the foreman’s remark that the foreperson stated that one of or wished to avoid embarrassment. highly in a emotional state. jurors was Weinstein, the first al- court then ordered 5). (H.C. II Tr. He then recalled that the ternate, join the delib- into the room momentarily returned to the foreperson After Greeson exited erations. room, the courtroom and returned to jury room, judge judge the talked to him. The like con- say juror that the did not feel to seemed to have been recalled Greeson tinuing, juror and that the did not want to “highly nervous.” perspiring and seemed (H.C. big the “make a deal of situation.” 5). (Duke Dep. 6). prosecutor stated that II Tr. While the he did not judge The trial stated that any specific conversation as he did not hear foreperson the having inquired recall jury split, gain he did “the to how the jury at time he was split of the the impression” juror Greeson was in to in- by foreperson, but try- approached first minority, jurors and that certain were other- way “if the record shows himself one dicated that ing get to him to commit 13). (Duke Dep. wise, (H.C. 9). corrected.” II Tr. He further stand or another. desig- that Weinstein was in the 7. record indicates 6. that Peek was There is no evidence so, courtroom, replace he heard the at 12:42 a.m. and if whether nated at bench. conversation 679 that he that after A juror He further remarked felt dismissal of a where there has been joined jury, inadequate an showing Weinstein the verdict of the statutory would, course, thirty forty-five not returned for min- conditions violate the utes, may statute: but he was not sure of this estima- also violate the defendant’s (Duke 9). constitutional Dep. rights. An tion. erroneous re- placement juror of a can in certain circum- Based on our careful review of all the deprive stances a right defendant of his evidence, support we do not find fair completed have his trial by particular a juror the conclusion that “ill” Greeson was tribunal, his right sixth amendment to a such that he perform was unable to his fair, impartial representative jury, and duty juror. contrary, as a To the we be- process his rights grounded due in the en- lieve per- the evidence shows that he was procedures titlement to by mandated state forming duty, his voting but not for a Zant, law. 551, See Green v. 715 F.2d good conviction when he in conscience was (11th Cir.1983). 555-56 unable to do so. The record demonstrates There can be no doubt that funda very that Greeson was nervous because of process, mental due and the to a fair under, pressure he was but his condi- impartial jury, entitles defendant in a tion was understandable —he was the lone by criminal case to be tried jury origi holdout after fifteen hours of proceedings nally selected to guilt determine his or in Moreover, in murder trial. the record nocence, subject to certain well-defined support does not the conclusion that Gree- exceptions. This right,” “valued implicitly son dismissed because of his nervous recognized Perez, in United States v. alone, condition but rather shows that the 579, 165, Wheat. 66 L.Ed. v. Wade judge, attorneys trial and the agreed who Hunter, 336 U.S. 69 S.Ct. dismissal, misapprehen- were under the (1949), L.Ed. 974 must “in some instances epileptic. sion that Greeson was There is be public’s subordinated to the interest in was, no evidence the record that Greeson designed fair trials to end in jury verdicts.” is, suffering epilepsy. Hunter, supra, Wade v. at U.S. 689. We turn legal now to the conse One such jury instance is when a hope quences juror of the dismissal of Greeson lessly event, deadlocked. In juror and the substitution with Weinstein. may discharge and order a new Juror replaced Greeson was excused and Perez, trial. United States v. supra, 9 Wheat, juror pursuant alternate Weinstein at 580. § Georgia statute 15-12-172: Also, many jurisdictions, the rules in like Replacement 15-12-172. incapacita- rule, Georgia permit replacement of a juror; replacement. ted effect of regular juror with an juror, alternate when time, any If at whether before or regular after ever -the physi because of his final submission of the case jury, cal or mental condition “just” or for other dies, ill, upon becomes good other longer cause can no function. For exam

cause shown to the court is found ple, 24(c) permits Fed.R.Crim.P. proce this perform duty, unable to or is dis- prosecution dure in federal time cause, charged legal for other the first before the starts its deliberations. alternate shall place take the Rodriguez, United States v. 573 F.2d 330 ).8 juror becoming incapacitated. (5th first applicable When the rule Cir.1978 (5th Phillips, 24(c) In United States v. requirement 664 F.2d 971 jur- of Rule that an alternate Cir.1981), may replace regular juror the court also condoned such "prior a re- or a to the time placement jury under the federal rules even replacement after the retires but if there is no jury begun had juror discharged to deliberate. Contra United be alternate must after the Lamb, 1153, (9th v. jury States 529 F.2d 1154 Cir. retires to consider its verdict” is not manda- 1975). Allison, Lamb.) But tory, contrary holding see United States v. 481 F.2d Phillips in 468, (5th Cir.1973), 472 by panel and United States v. a Unit B of the decided former (2nd Hayutin, Cir.1968). (The consequently binding 398 F.2d 944 Fifth Circuit and is on the 680 (citations omitted); Braley see also v. delibera- replacements after permits also (9th Cir.1968); composi- Gladden, jury F.2d 858 change in the 403 begin, the

tions cf Craven, 20, (9th con- abridge the defendant’s F.2d 22 449 tion does not v. Gonsior cause is shown rights good Thus, if Cir.1971). stitutional trial court’s failure its new jury, and the dismissal incapacity purported inquire juror’s into a delibera- member, begin its is instructed acquires consti- juror is excused before the Phillips, v. United States tions anew. See failure to significance insofar as tutional Cir.1981). 971, (5th But F.2d 992-93 664 deprive inquiry threatens to make such an 100, 278 19 N.Y.2d People Ryan, v. cf. N.Y.S.2d process. of due Should a the defendant (New (1966) 199, 224 N.E.2d 710 inadequate inquiry make trial court of prohibits substitution York constitution juror he is not improperly remove a when begin). jury deliberations jurors after denying thereby effectively incapacitated, di is another constitutional There his entitlement under Geor- the defendant provides Georgia case. law in this mension than jury to a mistrial if the is less gia law may be convict criminal defendant that no unanimous, may the defendant’s conviction jury; should by a unanimous ed less than inconsistent with due regarded as well be mistrial must agree, jury be unable rudimentary demands process and the 874, State, v. 233 Ga. Maddox be declared. procedure. fair Daniel, (1975); Georgia 654 W. 213 S.E.2d (2d 1982); ed. 629 Trial Practice Criminal fifth, sixth, analyzed as a Whether Shulman, Shulman, Georgia Prac A. W. question, amendment a funda- fourteenth 1975). (4th Al ed. and Procedure tice in mental concern a case such as this is right to a unani though a state defendant’s protecting process the deliberative necessity,9 not a constitutional mous is jury. justA result of a trial cannot be mat preserved as a Georgia has inappropriate reached if there is an inter- law, arbitrarily may ter of state upon ference with or intrusion the delibera- particular deny right to defendants. process. considering tive When whether to court to Generally the failure of a state replace juror after deliberations have be- state law comply provisions with the gun, adequate the failure to take safe- purely a matter of criminal trials is its guards produce negative can two conse- by and is not reviewable local concern First, quences. inadequate inquiry can re- process due federal courts under the juror simply of a sult the removal who the federal constitution. clause of good cannot in conscience for convic- vote particular to afford a failure of a state Yet, jurors agree. all tion when the other pro the benefit of established defendant verdict must be in accordance with however, may, under law cedures state juror, the decision of each individual process of due when result a denial each entitled to free from coer- by ren made the state court the error or fellow proceedings so fundamen cion members of the the state ders fundamentally jury. required deficient tally unfair or so Each to consult the rudi they are inconsistent with jurors with his fellow and listen to their procedure. mentary demands of fair arriving views at what he considers to be time, the correct verdict. At the same 842, (8th Mabry, 599 F.2d Klimas v. should not “surrender his honest conviction Cir.1979), grounds, on other 448 U.S. rev’d weight as to the or effect of the evidence (1980) 2755, 444, 65 L.Ed.2d 897 100 S.Ct. Securities, complete Reynolds in its discretion the trial with the Circuit. Stein v. Eleventh Inc., (11th Cir.1982). remaining jurors. v. Bonner 667 F.2d 33 eleven Cf. Prichard, 1206, (11th City n. 5 661 F.2d however, decided, Cir.1981). Phillips After 1628, Apodaca Oregon, v. 406 U.S. 92 S.Ct. 23(b) Fed.R.Crim.P. was amended in 1983 (1972); also v. L.Ed.2d 184 see Henderson provide if a must be excused after (7th Cir.1980). Lane, 613 F.2d 177-78 commenced, may the court deliberations

681 opinions jurors, the his or for night’s of of fellow recess would relieve his nervous 10 returning mere purpose the of a verdict.” tension. Second, necessary, when is substitution grievous part process the The most of jury begin the failure to the instruct to by the judge’s reflected trial comment on with might anew their deliberations result “Well, I at the time: think we the record premature in a verdict.11 Views of the the, have the to advise ought to foreman jurors may other have become hardened leaves, to advise the after Mr. Geeslin [sic] the opportunity before alternate has had an just, you to panel going that we are not participate to in the More deliberations. random____” know, excusing at This start over, when agreed the others have already suggests the trial court strongly the guilty, accused is the inherent wrong with al- thought nothing there was upon coercive effect the juror alternate opt jury of further lowing a to out Lamb, substantial. See United States v. testimony participation. The habeas clear- 1153, (9th Cir.1975). 529 F.2d 1156 thought that Greeson the evi- ly reflects

We in conclude this the case guilty to show that Peek was dence failed the judge’s cumulative effect of trial fail doubt, that he felt beyond a reasonable the ure make a reliable determination of eleven, other disapproving pressure of the incapacitated, whether Greeson was his suggestion a was made that he and that failure ensure that Greeson understood Again, excused. we state the seek to be right to adhere to his Peek view that do not jurors alternate serve to obvious: be acquitted, should and his to in failure who minority jurors for cannot substitute jury struct the begin reconstituted anew agree majority. the trial court with deprived Peek right of his constitutional adequate inquiry open made in should have by trial impartial fair and jury and steps to take: an court to determine what him deprived process of his due right to a recess; Allen-type charge; overnight an trial. fair mistrial. The trial open court failed to in conduct excusing Greeson, After the trial court inquiry court a recorded into the for basis compounded problem by the sending alter- substituting alternate Weinstein for Gree- nate Weinstein without instructing the reflects, As son. the record the con- initial jury to recommence deliberations. Wheth- versation the between foreman the er jury the returned in three minutes as

judge was off the record. Neither Greeson record, by shown the or in 15-30 minutes Peek, of jurors, nor the other nor are suggested by participants several trial present shown to be when the decision was proceeding, the habeas the deliberations juror. made substitute the Further- were flawed absence instructions. more, had participating been in the for except trial fifteen consecutive case, hours Given all the circumstances of this meals and brief recesses for when the sub- we also cannot conclude that Peek was not inquiry was made. No prejudiced by stitution was made the trial court’s omissions. Greeson, however, as stated, to whether a As we have already implicit Justice, by ABA Standards Criminal right Trial ant’s to a unanimous verdict under the 10. Jury, Georgia’s 5.4. Pattern § Criminal California constitution. The California Su- Instruction 1-9 is similar sen- includes this preme rights Court considered the to a unani- "However, you should never tence: surrender by persons mous verdict and to a verdict twelve opinions conviction or honest order right as elements of a broader to a verdict congenial solely or to a verdict reach because of jurors engaged together twelve who have opinions jurors.” of other deliberations. This if is violated one has not had benefit of the deliberations of 17, Phillips, supra, In 664 F.2d at 992-93 n. Consequently, eleven. other when substitu- quoted Supreme court the California this occurs, tion should be instructed to Collins, People v. decision in Court's 687, 17 Cal.3d begin process anew its entire of delibera- (1976), CaI.Rptr. 552 P.2d cert. 782 820, participate tions and alternate should denied, 97 S.Ct. U.S. 50 L.Ed.2d fully (1977), in those deliberations. in which court discussed jurors substitution in relation to the defend- Greeson, the ing juror defendant waived finding juror Greeson was state court challenge the his dismissal sti- fairly juror is not as a too ill to serve pulating to Greeson’s removal and substitu- a .If by the record as whole. supported approached jury tion. When the foreman incapacitated, was juror Greeson juror request the court to Greeson be juror Weinstein was replacement bench, excused, judge the was off the in a prejudicial to the defendant. See clearly (Deposition of corner of the courtroom. F.2d at 332. supra, 573 See Rodriguez, 30-31; Resp. # 4 II Judge Duke at ex. v. at Green, supra, 715 F.2d at 556-57.12 also 28). stip- at which counsel The conference find habeas court’s Accepting the state place took ulated to Greeson’s dismissal appear ing that “it had been made corner, present parties in the includ- there juror a ill and unable Court that foreman, judge, the the district ing the conclusion. does not affect our continue” attorney, defense counsel and the sheriff. jury nor the foreman Neither the sheriff 26-27). (Deposition Judge Dukes at juror appear who made it Greeson was trial counsel testified at the state Peek’s party ill was a neutral the matter.13 The stipulated having hearing that he habeas inquiries need to make Greeson informing excused without apparent. have been If the himself should receiving the the defendant or defendant’s Greeson, questioned juror trial court had 107-08). (Resp. ex. #4 v. I at approval. jury that the he would have learned States, Supreme In v. Patton United split 11-1 and that Greeson had a reason stated that: Court guilt. There no able doubt about Peek’s jury as a fact the maintenance incompe evidence that Greeson was finding body in cases is of such criminal at tent to understand the issues the time importance place a in our and has such excused, discussing that he was not traditions, that, any waiver can before jurors until the case with other immediate effective, govern- become the consent of discharge. ly prior Knowing to his ment and the sanction of the counsel upset condition and source of Greeson’s had, in court must be addition to the serving aware that he had been for over express intelligent consent of the case, in capital fifteen consecutive hours defendant. that an alternative other than we believe 276, 312, 263, 74 281 U.S. 50 S.Ct. substitution, jury further with no instruc (1930). L.Ed. 854 Patton has since been tions, constitutionally-mandated was the require that the defendant interpreted to Furthermore, there is also no need course. himself, merely and not defendant’s coun speculate prejudice as to the Peek suf sel, op approve stipulation before it can replacement since fered as result of rights defendant’s erate as a waiver of the ultimately the verdict in this case was re respecting jury tries him. See minutes after the turned within substitu Virginia Corp., v. Erection United States made. tion was (4th Cir.1964); 335 F.2d 868 United cf. Baccari, (10th Finally, district court held F.2d 274 below v. Cir. States least, 1973). very stipulation such a if the trial court erred excus- At the that even "full, Green, appear petitioner supra, that the had a fair we see no need to re- 12. Unlike adequate hearing” the district court before mak- mand the case to ing in the state court. 28 prejudice important 2254(d)(6). determination. An U.S.C. § present Green and the case distinction between court to hold that in Green the district refused Wyatt investigat- the chief 13. Sheriff was one of hearing evidentiary apply or did it an ing case and had testified as a officers in Peek’s 2254(d) listed in so as to obviate an § factors evidentiary hearing. (Tr. 174). of the state. At the state witness Moreover, the state habeas hearing, habeas foreman conceded that findings relating court made no historical idea of Greeson's conduct was not his delib- Here, is, (that trial). happened facts what at the just cooperating wasn’t erations and stated “he evidentiary the state habeas court conducted an hearing all____ have been in there.” He shouldn’t findings, and made and the district 52-53). (H.C. I Tr. evidentiary hearing court held no because it judge. (Habeas must be entered into with defendant’s tween the foreman and the 4/5/79, acquiescence. 92-94). intelligent Transcript, pp. knowing Les then States, (9th juror, announced for the record 358 F.2d 313 that a er v. United who Geesling (his was misidentified as Mr. Cir.1966), dismissed, petition 385 cert. for Greeson) name actually was 802, 10, (1966). was un S.Ct. 17 L.Ed.2d 49 U.S. 87 able to continue. Both the district attorney however, Here, not the defendant was and agreed defense counsel to excuse this among present parties stipu- the when the juror and the substitute first alternate. to; agreed lation given was that defense (Trial Transcript, 231-232, pp. Habeas counsel never discussed the matter with 4/5/79, 94). Transcript, p. alter first him, the time the first defendant can have sent jury nate was to the guilty room and a anything stipulation known about the to verdict few was returned a later. minutes1 excuse is on Greeson when the court went (Trial 232-233). Transcript, pp. The law saying parties the record so the had concerning juror of a substitution is as agreed. Consequently, we decline to hold follows: right that the waived his defendant to chal- any juror “If time at ... a ... becomes lenge any improprieties in constitutional ill, upon good other cause to shown juror the dismissal of Greeson. For the per- the Court is found to unable to reasons, foregoing judgment the of the dis- duty form jur- his ... the first alternate trict court reversed and remanded for or shall take place juror the of the ... entry of a conditional writ. becoming incapacitated ...” Ga.Code and REMANDED. REVERSED § Ann. 59-910. Petitioner any object waived to to APPENDIX A the substitution his agreed when counsel to (Trial the Transcript, p. 232). same. But ORDER STATE OF COURT IN HABEAS case, even if this were not the not CORPUS PROCEEDINGS error for the trial to court the substitute In paragraphs, these Petitioner claims first alternate where it had been made to that his imposed convictions sentences appear the juror to Court that a was ill and are unconstitutional an because alternate State, unable to continue. Tanner v. was substituted for a without a 437, (1978). Ga. Although there is showing good of cause and violation of disagreement concerning the length of time his Sixth and Fourteenth Amendment jury the deliberated with the substituted rights. member, presumed it is that the alternate After jury the had deliberating been for to intelligent was able cast an vote in the approximately during three hours the showing absence some contrary. of guilt/innocence trial, phase of the the fore- Although the ill juror may have had a jury man emerged jury the concerning doubt guilt reasonable the of room and the told one of the (Habeas 4/5/79, Transcript, Petitioner p. (Trial jurors Transcript, pp. was sick 231- 28); asserting he was not that doubt in the 4/5/79, 18-29, Transcript, pp. Habeas form certain of a vote2 in jury the room 41, 43-45). This was not done on the was, physical because of his and emo apparently record and when Court not condition, tional participating in the However, formally prosecu- in session. (Habeas deliberations at all. Transcript, tor, counsel, 4/5/79, 18-20, 31-32, defense and the sheriff were pp. 39-41, 51-52). present and heard the conversation Accordingly, replacement be- Gree 12/14/79, 11-12, 1. The record Transcript, pp. indicates three minutes Habeas Ha- elapsed 4/5/79, 59, 69-71, 49). Transcript, from the time the pp. first alternate went beas jury jury into the room until returned a alternate, judge, attorney, verdict. The district finding contrary 2. This of fact is cor- habeas approximately foreman testified that fifteen pus testimony Ap- foreman Smith. See thirty elapsed. (Duke Deposition, minutes p. C, p. pendix

Q Okay. you tell Would Court happened why you left the about what Weinstein done with first alternate son jury— procedure followed good cause. The Honor, Your MR. this ROBINSON: applicable Georgia statutes complied with time, objection I’d like enter an constitution any not violate federal and did concerning going into evidence rights al of Petitioner. Jury room. It in the deliberations time amount of the matter On attempt impeach an apparently deliberated with alternate Weinstein Jury contrary Georgia verdict of returned, the guilty verdict was before law. significance to the legal no attaches Court ques- I don’t think COURT: that a requirement There is no issue. went on in the is directed at what tion any particular of time delib- take amount reference to delibera- Jury room with erate, testified and alternate Weinstein to circumstances tions of case but with the he went over the evidence surrounding leaving. (Habeas 4/5/79, Transcript, jurors. other leaving. MR. McLARTY: His 60, 70-71). pp. Honor, I please, spe- if Your will And Therefore, claim finds the for Court cifically respond objection say- to his and 11 paragraphs embodied relief Jury Mr. not on the ing that Greeson was to without merit. be or a either issued a verdict sentence therefore, case. he could not in that And impeaching Jury’s verdict. APPENDIX B Well, may or may THE COURT: HABEAS CORPUS STATE GREESON’S true I think we need to not be but don’t IN FULL TESTIMONY worry I’m not inter- about that because MR. McLARTY: BY any this or hearing ested witness Greeson, you any recall that conversation in the Q Mr. do other witness not Jury they room about whether or are oath? are under I guilty. find think going to this man Yes, A sir. clearly inadmissible in this that would be you spell your THE COURT: do How proceeding. last name? Is it G-r-e-e-s-o-n? objection But I will on the overrule Yes, THE WITNESS: sir. question that I to be basis think procedure was fol- directed whatever THE COURT: Go ahead. concerning being Mr. on lowed Greeson’s BY MR. McLARTY: being Jury on the Jury and not then Greeson, Q oppor- an did reference not deliberations tunity July serve on back of 1976 to to the issues of the case. Jury in County? Greene Is that correct? Yes, is correct. A sir. MR. McLARTY: That McLARTY: MR. Q And was that the case of the State of Georgia David Peek? versus ahead, Q Just de- Go Mr. Greeson. Yes, surrounding your

A sir. scribe the circumstances leaving Jury. day that was? Do recall what leaving? what? me A On On sure, now, sir, No, say for I couldn’t A day it was. what Q Right. right, During these deliber- Q All now. Well, upset, so got got A sick—I

ations, reason for there become a did it like anymore it and looked stand couldn’t Jury some reason? to leave that on the—well verdict I couldn’t make a lawyer? defense goI back could Yes, sir.

upset, I—it seemed like—I had to dis- qualify myself. Greeson, I would THE COURT: Mr. background. know a little For

like to Well, ask some- long Jury had example, tell me how body out and tell .the Judge you feeling that when started been out continue? couldn’t anything way and don’t want to know Well, yes, THE WITNESS: sir. The talking what all were about about guess say, Foreman—I is all indicated, because the Foreman. Foreman of the go into. appropriate for this Court to him Jury discussed it for fewa —me you’d like to know been But I’d whether moments and he went and talked to the days thirty minutes or two or out for Judge. reference, Give me some time whatever. And then he came back THE COURT: hap- can so I understand better what say room and what did into the pened. you? Honor, Your I don’t THE WITNESS: He told me that THE WITNESS: exactly three say know but would could be dismissed. hours. four hours? THE COURT: Three or four And left? (Affirma- Yes,

THE WITNESS: Uh-huh. sir. THE WITNESS: tive.) you just leave And did THE COURT: pinpoint that doesn’t I to anything

But it because else said go and home I guess say— you? you THE COURT: the Do remember Well, Judge, THE WITNESS: Mr.

approximate Jury time the out that went I Duke—he met me. spe- remember that day? cifically and he shook hands with me and go in “Chester, THE WITNESS: You mean to to said, you he do togo want to make decision? hospital and be checked?” Because jitter he I in a Yes, saw was I was you THE COURT: when were —that him, no, said, I jumpy. told I I And by Judge first out sent to deliberate. all believe I’ll be a in the little bit. night Was it afternoon or or what? county Reece—he Yes, sir, And Mr. was the THE WITNESS: I it believe policeman asked him to escort me eight, maybe. was around been It’s so —he car my down to and make sure I was all long I— I right. he and talked for So a few Eight p.m.? got the court room I minutes outside and Yes, THE WITNESS: sir. said, “Now, feeling And he to better. you already THE COURT: Had been can’t, you go can home Chester? If supper? to you.” I’ll take Yes, THE went WITNESS: sir. We to said, “I’ll And I be all right, now. I’ll Yes, supper and came back. sir. right.” be all you’d THE COURT: So there been Well, THE COURT:. think that three or four hours when started whatever sickness had was related sick? feeling pressure you felt about that decision Yes, THE WITNESS: sir. any physical rather than actual sickness Now, right. go THE COURT: All you had? happened. ahead tell me what Yes, Yes, THE WITNESS: sir. I sir. Well, THE WITNESS: it seemed like think so. that I couldn’t make the and I decision THE any COURT: Do more just kept getting upset. more and more questions? And it was cool as well Ias remember Yes, sir, MR. McLARTY: a few. was actually sweating, trying and I just got what to I decide do. And so BY MR. McLARTY: Honor,

MR. Your ROBINSON: the Jury is that the verdict of can’t law Jury a be- on been you ever Q Have person a impeached third either. be fore? Juror, Mr. a if we consider So I had Jury but on had been IA impeach the verdict he can’t can’t panel, Your case—on served on never person it a third impeach as Honor. room. Was—did Okay, now. Q Mr. Greeson was COURT: hospital? when the verdict was returned. Is there night? That A that not correct? Q Yes. MR. McLARTY: That is correct. No, sir. A I think it MR. ROBINSON: home, you have you got Q When information, privileged Your Honor. of sickness? any examples other McLarty, read Mr. I recall, your it’s petition and I alle- Well, no, your As know what sir. well sleep think I went to long. gations are and don’t know what I don’t been so up sat going say I remember dreamed—I witnesses are but quick. so other while and my wife for know. and talked would—I don’t forgotten whether something. I’ve drank Well, guess I don’t I should comment to relax and and tried milk it coffee or objec- going that. I’m to sustain the on go to I could before it was a while I know questions any further that. tion about sleep. agree Not so much because I Now, impossible recall Court’s Robinson that would be do your responsibility testify charge to as to him to about conversation there, really as Jurors? obligations that went on don’t necessary you go it is to fur- think sir, Yes, part specifically I remember A ther with the witness. He not there. of it. happened la- you If need to show what remem- part you specifically do Q What testify you do want him to ter—what ber? about? any Well, if there is part the A you Do want to him what the ask mind, you supposed are your put doubt many with reference to how division was the benefit of the Defendant the give to people guilty many voted and how were doubt. you Is what want to him? not? ask Q right, sir. All Yes, MR. McLARTY: sir. Now, may I have not stated A specif- THE What about that got you to what I mean. COURT: hope I but thing, Robinson? ic Mr. the least to some extent Q Was that at upset? the your impeaching Jury’s That isn’t ver- nervousness cause all the time the dict. (cid:127) do that when Well, I think so. A Jury has been out for a while. Q Now— Honor, MR. Your I think ROBINSON: Honor, at this McLARTY: Your MR. asking which the law forbids please, I think we’ve might if I stage, the way the is but how—but what verdict prima facie case enough of made number or the division is. Mr. my original assertion back asking? you are Is that what impeaching be (Affirmative.) THE Uh-huh. COURT: Jury he was not of that since verdict Judge in he ask him what the I think can its Jury verdict when the rendered there can him that is what is a trial ask questions some and would like ask way it him which exactly telling without division what about breakdown or might. is. if I pressure, caused that

MR. inquiries MeLARTY: No made of Mr. Greeson. trial think the ROBINSON: MR. I’m not THE my WITNESS: To knowledge, have asked could there in this wasn’t. As far me, no, as him that would profitable how sure sir. objection know what I don’t case. THE it, Honor. Your COURT: You are not make aware of could Judge conversations the may have do you to I will allow that, had about you? are question. one ask that that. To THE No, WITNESS: sir. MeLARTY: BY MR. BY MR. MeLARTY: Greeson, left the time Q at the Q your In discussions with the Fore- room, on the— the division what was man, ever make the statement to Jury? division of numerical Foreman didn’t want to big make a one. A Eleven to to-do your about leaving anything like Q Eleven to one? that? your nervous- Was that the cause—of Maybe but, sir, A I can’t remember. — upsetness?

ness and say can’t for sure but I think maybe so. Well, building up. A Yes. it was Yes, sir. Q Beg pardon? Q Now, did charge urge, to the best your recollection, time, building up charge you A It was all regarding your responsibility once know. had decided particular issue, your responsibilities in long COURT: How had that been the Jury room? Jury? the division of the Yes, A Yes, sir. sir. Well, THE WITNESS: it probably had been eleven to for approximately one Do recall what charged thirty forty five minutes. I couldn’t regard? on that say. Well, No, not all of it. sir. But like I think enough that is you— I told subject. on that Greeson, THE COURT: Mr. excuse me just a minute. BY MR. MeLARTY: Mr. McLarty, I think testimony Q You stated that the Foreman went you have of very this witness is clear and Judge, out and talked to the you? didn’t very straight forward and direct about you Judge Did ever talk prior with the circumstances under which he left being your Jury? excused from the and I don’t you want to cut off. There No, No, A sir. sir. has objection. been no IBut will caution you not to burden the Q record this Judge Did the case any inquir- ever make things with that don’t have anything to you ies as to whether or not being were do with the issue. And I don’t really subjected any pressure in the Jury think that what he remembers about the room? Judge’s charge and all of that has any- No, A sir. thing at all any possible to do with proce- Q He inquiries made no you? all of dural difficulty when he left the Jury. Well, now, no, A as far as no. He said he him— upset. nervous and He No, sir. said that the cause of that was his inabil- ity you MR. to make a ROBINSON: Will excuse decision on the case. He said me? Just that it was clarification. Was divided eleven to one at question time and he inquiries that there were said he left. no inquiries made as to Greeson Now, or no made I think for this or Court at all? it, reviewing court it fairly should be as I can but I want to sure

this short be your testimony I am clear as to what is. testimony about this man’s what obvious of stuff a bunch go into And to is. this say during you Did the deliberations Judge’s he remembers what about case, you just got physically so ill on this going to do everything charge and you you continue? did not feel could any good. your case A Yes. let I will objection, no But if there done Q You’ve your physical that. And condi- because go ahead you and would your tion, witness you Jury Foreman well with discussed with real record so you not burden your being rather from the the matter of removed clouded. become it will Jury asking Judge you to allow him ask you I’ll let go ahead. But removed? to. you want anything A Yes. you, Your Thank McLARTY: MR. Q Jury And did ask Foreman if Honor. Judge very question he would ask the McLARTY: BY MR. Judge yourself? or did ask then question Q one more Just No, sir, A I didn’t ask him. The Fore- go, Mr. Greeson. let we’ll him there was a lot of man asked because been it’s almost guess the last two—I In words, green kind of on that us—in other it not? happened, has this years since three we—lot of us never had been on a because July. three A It will be thought case before and we the Foreman night both- Q happened Has what supposed everything. to do We didn't you?

ered know. I didn’t know. yes or say definitely, can’t A Well—I Q history hyper- You said had a like that —I put I hate to it definitely, no. tension? answer. give you a definite mean and not Yes, A In years. sir. the last few get upset person. hypertension I am a things I things and certain certain over Q Meaning long you say how when don’t. years? last few Jury, Q At the time that left that ' Well, probably A it started some four your mind? Was there was there doubt years ago. waivering regarding the Defendant’s Q Before the trial? guilt? Yes,

A sir. There was. Well, yes, sir but wasn’t bad. questions. further MR. McLARTY: No probably wasn’t under medication and six Robinson, Mr. do this, months after had to on medi- any questions of Mr. Greeson? high cation and continue to take it for Yes, Your Honor. pressure. MR. ROBINSON: blood Greeson, at the time that EXAMINATION CROSS Jury, asked to be removed from the Greeson, you say that was Q Mr. difficulty you making feel that would have that Jury you had served on or first your physical a decision? Did condition Jury prior to you had served on another really you? bother this? I had Yes, sir, A I had never been on case. Q and I think—I knew I was Jury several Jury on the and Grand making been in going difficulty a deci- to on a Tra- times but I have never served it more the sion but I think was decision— Jury verse trial. words, way the other eleven other I I go to and didn’t think questions had decided Q three may I ask two or upset. I was try keep I’ll combination. may so was—it that be redundant Yes, THE Yes, WITNESS: sir. sir. Now, right. you that’s hate for to have couldn’t I could and I was—I I didn’t think put my words mouth but that is I— more and think even right. COUET: Greeson? THE THE Let go COUET: me at it the Sir? THE WITNESS: way other make your sure that testi- saying you’re Is it what THE COUET: mony is think it what is. There would your put want to words and don’t ways you be two that go could at this. all, very important it is that mouth You could be room and be exactly happened. I understand what ill, nauseated, taken say say feel you Yes, sir. THE WITNESS: getting could something flu or saying you’re Is what THE COUET: nothing that had to do with the case. willing— going were not to be you that that, And you because so would feel going you were afraid weren’t you that just that you bad couldn’t think it. about willing other go along with the to be That be one physical kind of ill- that upset you that that so much eleven ness. you physically ill? it made kind The other would be you got you saying? are what Is that upset so about case and having Well, Your Honor—I THE WITNESS: maybe make that decision the uncer- have. know because it could really don’t it, tainty about that that nervousness and say you that if have never been Could mental upset you would make feel sick. can’t hypertension like I am—I upset and under- happened? it to can’t Is that what explain words, driving, In other it’s stand. THE WITNESS: Yes. That’s what think. driving driving, can’t even happened, Your Honor. Well, I’m interest- THE COUET: what THE any physical So COUET: illness about this. We have talked ed in is had caused being upset upset. physi- being We’ve talked about physical just starting rather than illness now, important But cal illness. or anything? you got physically I understand whether right? Is that you to that made it difficult for ill and Yes, Yes, THE WITNESS: sir. sir. participate' or whether think and All right, THE COUET: Mr. Eobinson. being by your physical illness was caused ques- ME. EOBINSON: No further a deci- you couldn’t make upset because tions. sion. Now, may which was it? THE COUET: You back out- you, side. Thank sir. Well, assume first. it was the THE WITNESS: anything didn’t have further? upset physically well, mental got so — I couldn’t make a decision. I knew No, ME. McLAETY: sir. you mental- COUET: What were about? ly upset APPENDIX C Well, case. WITNESS: about Well, my that’s what THE COUET: OF TESTIMONY JUEY FOEEMAN was. question AT SMITH STATE HABEAS your testimony to be that I take COEPUS HEAPING evening make a decision couldn’t got mentally upset that that so DIEECT EXAMINATION physically ill. made BY ME. McLAETY: Yes, that’s it. THE WITNESS: record, your name for State your physical And so THE COUET: please. mentally up- being resulted from illness it’s listed Laurence A I believe Steve uncertainty about set because courthouse records. case, right? Smith on the so, And that seems to be the basis assumption the Foreman had that the Lau- spell you How do THE COURT: Jury to reach a decision and was about L-a-u? or L-a-w rence? go like that. I’d to into U. THE WITNESS: Okay, THE him. COURT: ask L-a-u-r-e-n-c-e? THE COURT: you if tell But it would be easier Yes, sir. WITNESS: THE him the record reflects. Ask him if what go it and from there. He remembers MR. MeLARTY: BY happened can’t remember what three under still are you Now, recall you Q years ago. oath? just MeLARTY: I didn’t MR. want Yes, sir. A witness, Honor, my lead Your but with that on recall you Do right. Q All instruction, glad I’ll be to. Jury 1976, serving on 26th, July about BY MR. MeLARTY: Georgia versus the State case of circumstances, Q youDo recall those Peek? David Mr. Smith? Yes, A sir. Vaguely, yes, A sir. role on your Q what was And Q Okay, you And asked for now. Jury? this fifteen more minutes and was about I elected Foreman. A was night, 11:30 at is that correct? Q you evening later in the And do recall THE COURT: Twelve. of deliberation after three or four hours says If THE WITNESS: that record you into two different occasions when went so. I can’t remember. advised the Court that the court and MR. MeLARTY: He came back out at Jury had not had not made—that 12:35, Jury Your Honor. The left at reached a Do recall that? verdict? a.m. 12:03 I A different occasions that ad- Two Okay. right. THE All COURT: vised the Court? remember one occasion BY MR. MeLARTY: well, really I don’t remember —let’s that — Now, time, Q at that did feel that see, I the— remember Jury was close to a verdict? Honor, Your I think MR. ROBINSON: Well, yes, imagine A if I sir. the record will reflect. Yes, asked for fifteen more minutes. sir. me, help If could WITNESS: What did base that assertion on? ago. years it was three exactly Let me find out Well, talking we had—we had been you want know. Do want to what four, continuously. to. about it It seems to me getting Mr. Greeson’s sick know about everybody five or six hours. And had felt ask him that. and all that? Just about that what the evidence showed indicated many The record will reflect how times guilty every- that the man was and that out, body just— he came unless want to show was not accurate or record Honor, MR. ROBINSON: Your something. reflect it or would not going go extent are that we into the deliberations, here, again, Jury I tender part MR. MeLARTY: That is of what objection. an addition, go wish to show and wish right. matter. And can find All into one other we Let me petition P-1 of the instruct Mr. Smith. this Exhibit Jury advised the that it Smith, which Court appropri- think it don’t very easy place some would be asked or to have to ate for to be sequester Jury. At night, testify for over the substance of what went about time, requests the Foreman a few on in the room because that is a he can private matter. But I do think more minutes—fifteen minutes. to remember, putting it in that time be- cause it just is a blur. you questions concerning how the ask divided, Jury was whether was there one times, We had a division. At instead people, more two or or three or however one, of eleven to it was eleven to four— they might were who have voted differ- eleven kept and then it worked—it work- ently thing. from rest. That sort ing really down. ISo don’t know at that you explana- But due anybody aren’t an precise know, just minute. You had how, why as to anybody tion voted some the feeling and the Judge well, just I— way anything or that was said in the feeling had the given that time— Jury room. THE COURT: Given fewa minutes I think he what wants to know is at you that might? you the time that asked for fifteen more THE WITNESS: Resolve the thing. minutes, Jury how was the divided at Not knowing happen what would if we point. say don’t You have to how up were night locked at brought many many guilt for or how for not So, back the morning. me, next not guilty many people voted how one having before, served Foreman my way many people and how the other. If judgment, things progressing with like you agreed, all twelve would have a ver- were, they thing it was the best to do. dict, so have verdict. try Just to wait it out. THE Jury WITNESS: Who was on THE your testimony that time? Was Mr. COURT: And at on Jury clear, or was Weinstein? On the don’t definite Jury— recollections? back, think, THE This COURT: right. THE That’s WITNESS: Jury.

when Mr. Greeson was still on Exactly THE how di- COURT: MR. MeLARTY: Mr. Greeson was on up? vided Jury. absolutely THE WITNESS: do not. question your WITNESS: And Go ahead. many how voted? BY MR. MeLARTY: BY MR. MeLARTY: Q How people were twelve divid- Q Now, you recall if do at the time that ed? you went out and asked the Court there for Well, A we had— minutes, fifteen more whether or not Mr. many

MR. ROBINSON: Not how for at Greeson was ill that time? many guilty or how for innocence. say A I could not whether it my BY MR. MeLARTY: opinion at that time that Mr. Greeson—and asking you I’m not I’m just that. that’s—whether was sick time words, asking you the In ought division. other to be excused or whether or not. number, time, 5-5— say mean, At that I couldn’t —I mean, memory. would be taking a Eleven-ought-one. A Eleven to one. Now, guess. give guess I can but I THE COURT: Let’s make sure that factually. can’t talking we understand time we’re Q I may help you out, think the record about. Mr. Smith. When asked fifteen At the time that went and the out more went minutes and back into the inquired Court as whether room, precisely thirty that was two min- put whatever, up night for the utes before came out and indicated to requested fifteen more minutes. ill. the Court that Mr. Greeson was time, At that it was eleven divided your Is that testimony? one. Okay. prior thirty It was minutes THE WITNESS: trip Okay. say Well—not al- out there? I would years delay, most three yes, thought it is hard for me then that that —at time Yeah, him, know,

A I asked how he feeling. doing was I can remember that. I or not. well, he would be whether that — don’t mean, kept going I the man to the bath- know. turning room and he was a dark shade of out, thought he was I I came At the time mean, red and sweat—I his shirt was satu- agreed and he ought to excused sick and be mean, rated with sweat. I the man looked agreed, it in there everybody else imagine anybody sick to me. And I min- Thirty right if he left. be all would time, you kept saw him at He know. thirty he was sick utes before—whether doing (Indicating.) his head like that. And it imagine he was but minutes before—I bathroom, staying in the for—I didn’t time thought enough we to where wasn’t severe it but he went to the several bathroom mean, were we to be excused. ought stayed in times and he there for minutes at trying still to— the time. Trying to what? THE COURT: mean, just gave opinion the man me the out, Trying to work THE WITNESS: that he was sick. know, vote on down work the Q gave you opinion. He Did he tell and— could be unanimous we where you he was sick? a verdict? THE Reach COURT: A He indicated before came out to the a verdict Reach THE WITNESS: Judge that he was sick and that if there go home. anyway, was he would like to home and MR. McLARTY: BY just that he was ill. Now, telling side was Q without which Q Now, that, when he asked did anything like or voting for which side you inquire maybe toas whether or not a that— good night’s sleep make him feel mean side? A doWhat morning? better in the Q Acquittal or conviction. A No. No. Okay. A Q inquiry You didn’t make that at all? that, at go into Now, Q I don’t want No, A him didn’t ask that. all. So, Q know, might for all it have strong in being very But were both sides temporary problem? been a arguing positions their position, their during their deliberations? Yes, know, A for all I if could have I don’t think that is an been.

THE COURT: question. I think it invades appropriate Q suggestion Who made the that he be question privacy of the Juror to ask a Jury? sug- excused from the Was that his him you to ask like that. I’ve allowed gestion your suggestion or was that has This witness how it was divided. group sugges- another Juror’s or it a to one and that’s it was eleven testified tion? ought I don’t think he in the record. imagine just IA it was a consensus. having to position in the de- put mean, everything We did consensus. in the you what went on scribe to know, I have never been Foreman Except it relates to Mr. Gree- room. before. didn’t know how to run it. I let leaving. son’s everybody say. have their McLARTY: BY MR. gen- You mean it was a Now, Q and Mr. Greeson feeling among eral the Jurors that regarding his illness? any conversation good if Mr. would be idea Any regarding conversation his ill- were excused? ness? Yeah. Yeah. Exact- WITNESS: ly- Correct.

THE COURT: All right. Let record show that the Foreman has come out So then went THE COURT: out and indicated that Mr.—” Judge about it? and asked THE COURT: says Gheesling This Yes. To find out if it THE WITNESS: it means Mr. Greeson. possible. I didn’t know if it “He feels extremely that he is nervous possibility or not. breaking point almost at the and that I think the record will they trying have been they to do what happened got he out reflect what when placate could to him keep and to some- you asking room are the court but thing happening Gheesling that Mr. him— _f) I like to make would MR. McLARTY: THE COURT: Meaning Mr. Greeson. on that. inquiries some requested “Has that he would like to McLARTY: BY MR. And, be excused. Mr. Briley, I believe you you the court said stipulate.” out will went Q you When stay Jury back room, Now, the rest THE did that’s what the room? Judge deliberation indicated that had said at the time. And does square that with what Yes, They did. sir. you remember? Q right. All describe Could THE Yeah, WITNESS: Yeah. the Court that occurred with conversation does. at that time? THE COURT: you reported That Judge A Yeah. I went out and told the Judge that Mr. Greeson was ex- that was sick and he we had a Juror want- tremely nervous and almost to the break- And he called the ed to be excused. two ing point and wanted to be excused. attorneys up he asked each and one of THE WITNESS: Yeah. I say them, said, got a Juror that sick we’ve yeah. that was-— know, possible, you they and would it be do BY MR. McLARTY: any objections being as to Juror said, relieved. And both of them fine. Q So, opposed your advising the Court that Mr. Q Gheesling or Mr. Judge inquire Did the Greeson or as to what was, sick, which ever one it type was it was in of sickness or what the cause of the fact that he was upset nervous and sickness was or whether or not the Juror and almost at a breaking point? just was tired? A Yeah. Yeah. If that’s what all, any inquiries you, Did he make at mean, says record it’s been since ’76 and nature? —I I can’t remember. All I knew is the man he, less, just my A I think more of took upset way that’s the I remember it was sick and it was

word that the man that he was sick. If I said if nervous or temporary thing. And he wanted to says the record that— be excused. MR. ROBINSON: The record doesn’t Now, what indicated to the indicate point. on that The record does Mr. was sick or that Court not indicate what Mr. Smith said upset? nervous and Greeson was Mr. think we rely have to testimony on his A I indicated to him that he was sick. testimony and his would—has been that THE COURT: Let me read this to Mr. Judge he told the that he was sick and Smith to refresh his recollection. simply record reflects what Judge states. Smith, transcript of the trial following: indicates the “The Foreman Smith, COURT: Mr. do re- question asked the Court at member—do exactly remember what 12:35 a.m. Judge said to the point? at that leaving

with a then a verdict Juror that, necessary coming it is after (Negative.) Uh-uh. THE WITNESS: that we into this. I told what honestly can’t remember Yes, sir. sick or WITNESS: him he was told him. Whether terribly was —a him he So, told whether I do it somewhat THE COURT: condition. apologetically nervous we don’t have nobody for not know for But blames You don’t choice. THE COURT: exactly you said remembering what sure? what years ago. I don’t remember three really don’t. THE WITNESS: ago years three either. Well, Judge Dukes said said he ex- time that nervous and almost to break- tremely ing point. CROSS EXAMINATION now, any quarrel, You wouldn’t have BY MR. ROBINSON: that? Q Smith, you explain I Mr. wish No, sir. I would THE WITNESS: thing you me. one for When asked what I, you possibly that’s what think that were, you the division of the Jurors said know, just I can’t probably what I said. eleven-ought was one. division or remember. you What did mean that? why? you

THE Do know COURT: in you have a talk with Mr. Greeson Did Well, guess “ought” A I would be enough to know what the Jury room Mr. Greeson because his was or his nervous- basis for sickness Now, I’m asking you not who was ness? what, now. him you making tell what Did he Okay. upset? so Well, now, THE you COURT: asked did, If I re- THE WITNESS: I can’t question. him the him Let answer. Go I what I’ve member but would —from say you say. ahead and what want I’ve, since then and from what found out Well, THE maybe just WITNESS: I'm know, in every talked to Juror I’ve opening shape, a can of worms in but his any of times. After Mr. there number just didn’t know what he was —he left, opinions. heard You I’ve Greeson —he just more or less non communica- know, separate— I can’t tive —back and forth to the I bathroom. Well, pur- I THE COURT: think for mean, he couldn’t —he still. couldn’t sit hearing we stick poses of this better just participate He couldn’t —he couldn’t just what remember from that with my idea of a deliberation. time, rather than some reflection which what — just cooperative. wasn’t He you have made. Well, that’s the rea- THE WITNESS: BY MR. ROBINSON: know, or indeci- I’m evasive son so— Q I it your testimony take is that when really I can’t— sive. you characterize the division of eleven- really I don’t think THE COURT: one, ought or the tie vote there was some almost been evasive. It’s been you’ve gentleman give yes who couldn’t even or and I know that this has years three guilty no for or innocence? and it also is unusual been difficult saying? Is that what are called into a court to is ever back Juror A Yeah. happened. Only in the explain what ought THE COURT: So the or one I even unusual circumstance would most Greeson, depending would be Mr. on how questioned this you to be about allow you viewed his vote. gravity is in- of what because THE WITNESS: How viewed case and because the volved this fairly his— record reflects a unusual situation expert asking opin-

as an before for his physical ion on his condition. voting He wasn’t THE COURT: No, voting all. MR. just He wasn’t ROBINSON: Your Honor. I guilty. asking opinion am for an are with coop- just He wasn’t THE WITNESS: qualified witness. And I think he is just shouldn’t have at all. He erative he, give opinion as to whether in there. been himself, was concerned with the Juror’s you say that he When being. I’m asking well him if he cooperative, you mean he was not knows as a medical if doctor he was sick cooperate guilty and vote with wouldn’t pneumonia. with But whether in his everybody else? opinion if he fact concerned No, mean THE WITNESS: don’t physical with Juror’s health. He mean that. know that. don’t He— knows either he was concerned or he say much. —y’all cut me off if too wasn’t concerned for that. my memory, Going back on Chester THE COURT: will allow ask like that well—I’ll have to felt question. himself. speak let Greeson cooperative. He just say I’ll he wasn’t ahead. Go it, more or less. just was out of thought was WITNESS: This—I guess we need not be Yes, definitely was con- record. coy each other about whether or not cerned for Greeson. going was not it was Mr. Greeson who questions, No more MR. ROBINSON: everybody guilty. I think knows vote Honor. Your per- so the record will be that but anything do THE COURT: clear, point, after all fectly at that further? went back in the room after mid- Yes, MR. McLARTY: Your Honor. night, your testimony every- is it body agreed had on a Greeson REDIRECT EXAMINATION guilty? And Mr. verdict of Greeson was BY MR. McLARTY: just in such a state that he wouldn’t vote way. either Now, Q that Mr. you stated Greeson saying? are Is that what cooperative. Did he vote? wasn’t That is more or less THE WITNESS: A Yes. agree with that. right. That’s—I will Q He did vote? Okay. THE COURT: Yeah, time, he sure. From time to I have about MR. ROBINSON: two sure did. Honor, questions, if more Your three questions. McLARTY: No more MR. please. of this witness. That’s all have Okay. Every get time I somebody up, cleared asks another this VANCE, Judge, Circuit concurring in question. part dissenting in part: MR. ROBINSON: That is what I am I respectfully dissent from the majority’s afraid of. opinion to the extent it reverses Petition- BY MR. ROBINSON: would, however, er’s conviction. I reverse only your opinion This concerns at Petitioner’s death sentences for reasons the time about Mr. Greeson by my not addressed colleagues. Petition- when— Judge before went out to ask the to er asserts that the trial court’s instructions excuse him. Were at that time con- regarding mitigating circumstances were cerned physical being? for his well unconstitutionally vague. Because the in- MR. Objection, McLARTY: Your given Hon- structions his case virtually were asking or. He’s opinion for an of evi- indistinguishable requiring from those re- dence. I think qualify he needs to Zant, 1487, him versal in Westbrook v. 704 F.2d

696 Cir.1983), Zant, (3) (11th Judge The foreman informed Finney v. Duke ill; juror that a 643, (11th Cir.1983), 709 F.2d 646-47 would vacate Petitioner’s death sentences (4) Judge Duke formed the correct im- resentencing. and remand for pression that the was ill and unable to continue. propriety

The Greeson’s dismiss subsequent al and alternate acknowledging Weinstein's After that Sumner II re- quires principal substitution constitutes the issue this court to defer to the state habe- findings they as court’s unless are not fair- majority in this case.1 The consti divines record, ly supported by majority decision, tutional error the trial court’s nevertheless embarks on its own factfind- counsel, by concurred in dismiss ing mission and comes to the remarkable undeniably ill had who and who asked fairly conclusion that the record does not My colleagues reach this be relieved. support finding ill too perplexing way sequence result of a perform juror. his duties as a This errors, subject some which have been the finding particularly light remarkable Supreme of recent Court admonitions. testimony of Greeson’s own at the state panel’s failing first mistake lies There, proceeding. habeas Greeson testi- accord the deference due to the state habe fied: findings court’s of fact under 28 U.S.C. Well, got got upset, sick—I so § 2254(d). objection Petitioner voices no anymore and it couldn’t stand looked adequacy factfinding procedures verdict____ like I couldn’t make a employed arguments on state habeas. His go to the instead ultimate facts as found. Well, it seemed like that I couldn’t make Mata, 591, 597, See Sumner v. 455 U.S. just kept getting the decision and I more 1303, 1306, (1982) 102 S.Ct. 71 L.Ed.2d 480 upset____ just got and more And I so II). I, In Supreme Sumner {Sumner upset, I—it seemed like—I had to dis- reiterated that Court under such circum qualify myself. give findings stances we must effect to the of the state habeas court. v. Sumner got physically well, so up- ... mental — Mata, 539, 545-47, 449 U.S. 101 S.Ct. set that I knew couldn’t make a deci- (1981). course, L.Ed.2d Of sion. findings may be inferred from the factfind responded affirmatively Greeson also clearly er’s of the facts or from artic view following questions: legal principles by ulated relied on the state your And physical so illness resulted Zant, 551, v. 715 F.2d court. Green 557 being mentally upset because of (11th Cir.1983)(Green I). case, uncertainty right? about that sifting through In the events as narrated court, by principal the state habeas these you say during Did that the deliberations findings emerge: case, you just got on this physically so ill (1) harbored a Greeson reasonable doubt did not feel could continue? guilt; Peek’s as to (2) physical Greeson’s emotional and condition, your physical And because however, state, impaired voting his and Jury discussed with the Foreman the deliberations; in the participating your being matter of removed from the (b) following alleged raises 1. Petitioner additional An denial of Petitioner's constitu- reversing grounds right arising his conviction: tional to a fair trial from the fact jurors go that one of the was allowed to home (a) An asserted error in the district court’s consent; for lunch without Petitioner’s provide failure to Petitioner with an eviden- (c) allegedly An unconstitutional exclusion of tiary hearing to redress the fact that tran- grand petit juries. from the and scripts proceedings minorities of the state court had nev- court; by All three lack merit. er been reviewed contentions habeas

697 asking mean, or allow red and sweat —I his shirt was mean, be removed? saturated with sweat. the man looked sick me. imagine any- And I body time, saw him Greeson, at the time that asked know. Jury, to be removed from the difficulty mak- feel your ing physical a decision? Did condi- mean, just gave the man opinion me the you? really

tion bother that he was sick. majority’s finding The is even more re-

markable when foreman testi- He Smith’s indicated before I came out to the mony is also considered. He testified as Judge that he was sick and that if there anyway, follows: was he would like to home and that he was ill. I thought ... was sick and [Greeson] ought agreed to be excused and he and majority The determine, has been able to everybody agreed, else in there it would by looking at a cold eight years record right all if he left. fact, after Greeson was not as sick as he or thought foreman Smith Yeah, him, you know, I asked how he that he could perform have continued to feeling. doing I can juror.2 remember that. duties as my In view this is mean, kept going the man precisely that Sumner to the bath- type factfinding I II turning Sumner and he room a dark shade of prohibit.3 According majority, opinion to the Greeson at state The fails to note that no one—neither habeas indicated that his Respondent sickness was due not queried Petitioner nor Gree- —ever physical illness but rather to emotional dis hearing son at the state habeas whether he suf- brought tress on epilepsy numerical division of malady fered from or other than which had shifted hypertension to eleven to one in jury. when he served on the Peti- tioner, guilt, being course, favor of the lone holdout. ruling bore the burden of out This distinction is possibility irrelevant. Petitioner has epilepsy on habeas review. lying Willis, 461, foreman Bentley 639, never accused Smith of about v. 247 Ga. 276 S.E.2d incapacity. (1981). Greeson’s Nor has Petitioner inti 641 jurors mated that the other opinion goes bullied Greeson into on to discredit the trial physical collapse. a state of emotional and investigation by In finding court’s that "no one duress, fraud lieu of I am unable to conclude Geesling] knew which [Greeson or as a matter of being constitutional that a mistrial excused.” It is clear after Pullman-Stan- juror, agonizing Swint, 273, must issue whenever a 1781, over dard v. 456 U.S. 102 S.Ct. 72 verdict, lapses incapacity. however, into See (1982), United L.Ed.2d 66 that it is the sole 1328, Armstrong, (9th v. court, States Cir.1981), 654 F.2d province appel- of the habeas trial not the denied, 1157, court, cert. 454 U.S. 102 S.Ct. disputed late 92, to resolve facts. Id. at 291- (1982). Zant, 71 L.Ed.2d Green v. 102 S.Ct. at 1791. That admonition Cf. extends (11th Cir.1984) (Green F.2d 1531-33 questions epilepsy whether Greeson had II) (dismissal of a who was so ill that she whether sheriff understood that it was could continue deliberations not of constitu Greeson who was in distress. Were such facts significance). tional Nor does the Constitution determinative, proper the course would be re- require us to reverse a trial who incorrect I, however, precepts Under mand. the of Green ly impaired juror's prospects evaluates an for necessary no remand is because voir dire would rapid recovery. verge have revealed that Greeson was on the of breakdown. addition, majority’s Judge In the indictment of Since the trial court had cause to excuse Gree- son, inquiry replete Duke’s is with factual inaccura- it was free to dismiss him over counsel’s judicial overreaching. My colleagues objection. cies and Dominguez, See United States v. 615 1093, incorrectly (5th case, Cir.1980). state that "Greeson testified he had F.2d 1095-96 In this course, physical no expressly ailments at the time of the trial but stipulated of defense counsel diagnosed having since that time had been as to the substitution. fact, hypertension.” mild majority “grievous” disregard In Greeson testified The discerns a contrary. already rights to the He recounted that judge’s he for Petitioner’s in the trial com- hypertension suffered from going mild at the time of ment that "we are not to start ... excus- trial, began require ing wholly a condition which medi- at random." This inference is un- comment, cation coming six months later. warranted. as it did The 698 by my acknowledges colleagues that a de- tionale articulated than their In rather majority The departure precedent per constitutional to have se. fendant’s trial reverse, deciding completed by particular jury majority must the takes a necessary unprecedented step elevating per the of a yield in the event it becomes Only Georgia replace an ill an alternate. ceived violation of ipso ure. Unless sary holding promises state statute5 I, year, in facto into error of last tional error would not inhere court’s failure to Green we held that constitu- constitutional stat cabined, strictly in trial a this unneces investigate expand proffered scope the the beyond recogni if the of federal habeas review reason for dismissal “was [] hearing incapacitated and if a would have tion. court____” that fact to the trial revealed A defendant would not be Turning finally question of “prejudiced substitution, again Weinstein’s we must hearing” failure to hold a the to the extent a court’s [trial] take heed of our limited role on review. subsequent hearing sub- scope inquiry the broad “[0]ur cause. 715 F.2d at 557. stantiated supervisory power appel- exercise of late courts case, juror unques- In this Greeson was possess regard federal ill, At the tionably I, too ill to debate or vote. district courts.” Green 715 F.2d at 556. freely hearing, he stated that prisoner may prevail, state habeas “Before state ill and had asked to be re- he had been lieved. Because must show that constitutional the asserted error is of prejudice no therefore magnitude.” Id. from the decision to dismiss emanated date, only To circuit court that has Greeson, Petitioner’s claim must fail. See grappled question with the has concluded II, 738 F.2d at 1533. Green that no constitutional error attends the ignores goes majority The II and Green substitution of an alternate after the has retired due to lack awry reading require I to reversal Green supplementary whenever the trial court conducts a lacklus ter instructions to recommence deliberations. investigation rigid per of cause. A se Evans, 1124, See United States v. 635 F.2d incompatible preju reversal rule is with the (4th Cir.1980), denied, 1127-28 cert. 452 I and dice standard formulated applied sioned in those cases can either at trial or Green 943, 3090, U.S. 101 S.Ct. 69 L.Ed.2d 958 inquiry The envi Green //.4 (1981). In Phillips, United States v. effectively occur (5th 1981), F.2d 971 nied, B Cir. Unit cert. de subsequently, upon habeas 457 U.S. 102 S.Ct. II, 1533; F.2d at review. Green Green (1982), L.Ed.2d 1354 we described the ra I, Obviously, 715 F.2d at 556-57. trial approval: tionale of Evans with inquiries full-fledged courts that initiate Evans, In replaced the trial court potential delay, expense, will avoid double trial. a quate investigation requires regular juror with an alternate after the jeopardy possibilities inherent in re begun deliberations; had however, Obviously, cursory investigation expressed the defendant himself un- An juror’s claims courts reversal. inade equivocally in favor of proceeding with reversal, how newly jury. constituted newly The ever, only thereby preju if Petitioner is jury begin constituted structed to specifically was not in- diced. anew, its deliberations standard, By ignoring prejudice only but rather was told to continue its analysis Nevertheless, flies in the face of majority’s bind deliberations. appel- late

ing precedent. circuit This alone would court concluded “specula- that the My strongest prejudice ..., reserva tive no necessitate dissent. assertion of to which however, tions, underlying objection raised, concern the ra was insufficient probe, minority opposing imposition trial court had after the concluded its of the death instead reflects the court's refusal to dismiss a penalty though jury ultimately even sen- juror except good cause. death). tenced the defendant to majority 4. asserts that "there is also no by importing 5. This determination reached speculate prejudice need to Peek suf- 24(c), requirements of Fed.R.Crim.P. replacement as a result of the fered since the supposed requirements, provi- rather its into the ultimately in case verdict within this was returned Signifi- sions of Ga.Code Ann. 15-12-172. § after minutes substitution was made," however, they authority cantly, Georgia cite no for this none of the courts that have II, proposition. Compare novel Green F.2d 738 reviewed Petitioner’s claim has discerned a vio- (finding prejudice at missing no resulted from 1533 dis- passage. lation of that replacing an ill who was in reversal,” stating that justify to ing “[n]oth- jury starting from precluded SOLOMON, Lucius T. again.” very beginning all over from the Plaintiff-Appellant, added). (emphasis 635 F.2d at v. at 992 n. 16. Based on Evans 664 F.2d authority, Phillips court conclud- other ed that HARDISON, al., Hugh C. et instructions to delib- supplementary Defendants-Appellees. satisfy re- constitutional erate anew would quirements. No. 83-8658. however, Phillips, pur- never ported mandate such instructions as a Appeals, United States Court of right. matter of constitutional Eleventh Circuit. Evans, counsel failed to As defense Nov. request the instruction whose omission Pe- deplores. Similarly, nothing in titioner now As Amended on Denial of original proceedings hindered the 10,1985. Rehearing Jan. beginning again. all deliberations over The state court found that the habeas for Weinstein’s reviewed the case jury. joined after he Weinstein benefit trial and had listened to the entire charge original jury. present for the prejudice alleges, that Petitioner Since I, speculative F.2d at see Green best, I am unable to conclude that the surrounding alternate Wein- circumstances stein’s substitution were fundamentally un- derogation Petitioner’s fair tional constitu- rights. FOR

ON PETITION EN BANC

REHEARING GODBOLD, Judge, Before Chief RO-

NEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, CLARK, ANDERSON and Judges. Circuit

BY THE COURT: member of this court active service having requested poll application on the rehearing majority en banc and a having

judges in this court active service rehearing granting in favor of en voted banc, IT that the cause shall IS ORDERED

reheard this court en banc with oral argument on a date hereafter to be fixed. previous panel’s opinion hereby VA- The CATED. specify briefing schedule clerk will filing

for the of en banc briefs.

Case Details

Case Name: David Peek v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 5, 1985

Citation: 746 F.2d 672

Docket Number: 82-8713

Court Abbreviation: 11th Cir.