Henry Arthur Drake v. Ralph Kemp, Warden

GODBOLD, Judge, RO- Chief Before HILL, FAY, VANCE, TJOFLAT, NEY, HENDERSON, KRAVITCH, JOHNSON, CLARK, HATCHETT, ANDERSON, and Judges.* Circuit * Court, Clark, disposition except Judge join the six issues Judges All ANDERSON, III, 30(b)(7) unconstitutionally R. LANIER Circuit overbroad —was Judge: vague applied to Drake’s of Godfrey Georgia, violation 446 U.S. INTRODUCTION (1980); 64 L.Ed.2d 398 principally (5) case was taken en banc This during the instructions the sentenc two of the several constitution- to consider ing phase of Drake’s trial failed to inform by appellant Henry al claims asserted the that impose it need not the death opinion, In One of this we Drake. Section penalty even if statutory aggravating a the discuss the claim that instruction on beyond circumstance had been found a rea improperly intent Drake’s trial shifted doubt; (6) sonable and that Drake’s sen proof in the burden of violation of Sand- tence death disproportionate was under Montana, v. 442 U.S. strom S.Ct. Florida, Enmund 458 U.S. (1979). 61 L.Ed.2d 39 We conclude S.Ct. 73 L.Ed.2d 1140 The violation, that there was and Sandstrom panel affirmed the district court’s denial of beyond the error not harmless relief each on of these six issues. Drake reasonable doubt. Section Two this Francis, (11th Cir.), 727 F.2d 990 vacated opinion, we discuss Drake’s claim that the banc, en’g reh 727 F.2d for argument prosecutor’s during sentenc- the Cir.1984). respect (5) above, With to issue ing phase capital of his trial the rendered challenge to the trial court’s sen sentencing phase fundamentally unfair. instructions, tencing we reinstate Part VIII prosecutor’s argu- We conclude panel opinion. of the See Drake v. Fran sentencing did phase ment render cis, F.2d at 1000. We decline to reach fundamentally the trial unfair. (2), (1), (3),(4), (6), issues exercising and our In addition to the two issues which discretion not so in light to do of our reso opinion discuss, this will six asserted lution granting case relief on other (I) other constitutional claims: that new grounds. on key evidence based the recantation of a C.E. savagely Eberhart was beaten and against witness Drake warranted habeas 5, 1975, stabbed on as he December worked relief; (2) corpus that the use of inconsist Colbert, in shop Georgia. his barber in He prosecuting ent theories in Drake and a died a later few months from head wounds allegedly in defendant involved the same regaining bloody without consciousness. A (3) process; crimes violated due that the pocket hammer and knife on were found prosecution’s knowing of perjured use tes premises. timony (4) process; violated due Investigation crime soon focused aggravating circumstance—the offense Campbell Henry on vile, William and Drake. “outrageously wantonly horri- men, woman, along The torture, in two with a had ble or inhuman that it involved mind, depravity aggravated day been in or an bat- Colbert the of the attack and § victim,” tery to the Campbell lounging Ga.Code Ann. 17-10- was seen near the bar- flat, Vance, Kravitch, Henderson, Hatchett, Judge Fay, referred to in the Introduction to Ander- Court, opinion reinstating pan- son’s for the Judges and Anderson Clark. Hill and Johnson issue, opinion respect el clining one and de- opinion separately have filed each concur- Judge reach other five issues. ring this in result. specially concurring opinion Clark’s discusses Judges following join in Section Two grounds upon the additional which he would Judge opinion concluding Anderson’s granting corpus. also rest the writ of habeas prosecutorial argument did the sentenc- render Judges join All of the Court in Part I of Godbold, fundamentally ing phase unfair: Chief Judge opinion Section One of Anderson’s con- Hill, Judge, Judges Roney, Fay, Tjoflat, cluding that there was a Sandstrom violation. Vance, Henderson, Hatchett, and Anderson. Judge separately Hill also on has written this Judge separately Hill has also written issue. Judges issue. have Kravitch Clark each following Judges join in Part II of Section concurring opinions separately re- filed Judge opinion concluding One of Anderson’s Johnson, opinion, only. Judge sult without also Sandstrom error was not harmless: only. concurs in the result Godbold, Judge, Judges Roney, Tjo- Chief later, years Two Drake filed an extraor- where A search of house shop. ber dinary un- motion for new trial the Mad- Drake, Campbell, the woman lived Superior alleging the belonging County to Eber- ison Timex watch covered a containing discovery prove of new evidence would drawer hart in a tried The new evidence was Campbell and Drake were innocence. clothes. first Campbell Camp- was tried William separate trials. the form of an affidavit trial, robbery. bell, prosecution’s against At and armed star witness murder sitting Drake, repudiating testimony have in the bar- his previous he claimed to been entered and attacked. shop inculpating hearing, ber when Drake dur- Drake. After a Campbell was convicted substantially Eberhart. Campbell testified affidavit, sentenced to death. contained in his same facts trial motion court denied the trial, proceeded on the state At Drake’s Georgia Supreme Court affirmed. Drake have theory could not 891, State, (1982). 180 v. 248 Ga. 287 S.E.2d by The the himself. committed murder Supreme again The Court denied certiorari. victim, although elderly, strong, was while 1111, 457 102 Georgia, Drake v. U.S. S.Ct. and Campbell was weakened asthma 2915, (1982). 73 1322 L.Ed.2d emphysema. Campbell principal was the murder; linking Drake to the state witness 1982, August the Drake filed instant repeated gave his own story he the he at petition corpus relief in the for habeas that, explained trial. Drake testified and the District Court for Middle United States attack, dropped day on of the had the Georgia. of de- District The district court then shop off at the and barber appeal, panel nied a of this relief. On later re- visited relatives in Colbert. He granted court relief on the issue in- pick up Campbell they and drove turned to volving prosecutor’s argument during the Madison, Georgia. cor- story This was Francis, sentencing phase. v. the Drake by family roborated members who testified (11th Cir.1984). petition A 727 F.2d 990 for evidence, the and at trial. At the of close rehearing thus granted, en banc vacat- deliberation, long con- after a Drake was panel opinion. the F.2d 727 1003 robbery. victed murder armed of Cir.1984). the Drake was sentenced death on SECTION ONE: SANDSTROM ISSUE imprisonment charge murder life on and to AN I. WAS THERE IMPERMISSIBLY robbery charge. His the armed convictions BURDEN-SHIFTING INSTRUCTION ap- on direct sentences were affirmed ?1 UNDER SANDSTROM peal Georgia Supreme by the Court. charged with and con Drake was 583, 57 Drake 241 Ga. 247 S.E.2d robbery victed of armed murder. (1978) petitioned . Drake then the United argues judge’s Drake that the trial instruc a certio- Supreme States for writ of impermissibly intent regarding tion Georgia, rari which was denied. Drake v. burden-shifting under v. Mon Sandstrom 1265, 59 485 440 99 L.Ed.2d U.S. S.Ct. tana, 61 U.S. (1979) July Drake Subsequently, . part The of the L.Ed.2d relevant corpus filed of petition a writ habeas instruction reads as follows: County, Superior the Butts Geor- Court of merits, gentlemen, charge you I gia. hearing the Ladies and After a on Georgia Supreme a criminal intent is a material and court denied relief. ingredient any criminal Supreme necessary States Court and United charge prosecution. of I the acts declined to review the denial Court both person and discre- petition. sound mind habeas state 14, 1979), objection not claimed Although Dec. state has defense made no counsel trial, procedural or the district charge procedural in this court jury default at there no court; argued defense counsel’s nor has it habeas reached default because state court merits, object should affect failure to otherwise Sandstrom issue on Zant, (Sup.Ct. Cty. analysis. slip op. Butts Sandstrom No. at 9 presumed products to be the tion are impermissibly as to intent to be burden- — person Franklin, sound person’s will and See shifting. at-, U.S. presumed mind and discretion 1974-1976; accord, Davis, S.Ct. probable the natural and conse- intend F.2d at 1517-19. act, but both these quences After a careful jury review of the entire presumptions may be rebutted. charge, employing analysis set however, charge you, person that a will Supreme Court in Francis v. forth presumed to act with criminal not be Franklin, juror we find that a reasonable may intent but the trials of fact find [sic] could well have concluded that Drake bore intent from consideration of the such proof necessary the burden of on the ele- conduct, demeanor, motive, words, portions ment of intent. The relevant circumstances connected with all other instructions cannot distin- be is here the act to which the accused in Francis v. guished jury charge from the prosecuted. You are the triers of the Franklin, controlling. find we to be facts; therefore, question it is a of fact thus conclude that the We instruction vio- your solely for determination lates Sandstrom. in- whether or not there was a criminal II. WAS THE SANDSTROM Defendant, part tent consid- ERROR HARMLESS? ering and circumstances as the facts dis- deducting closed the evidence and expressly Court has might reasonably deductions which open question whether a Sand left from these facts and circumstanc- drawn strom error can ever be harmless. Fran Now, may es. while a criminal intention — Franklin, at-, cis v. U.S. 105 S.Ct. proven way, in more than one However, at 1977. our en court banc question of the Defendant did whether Davis recently reaffirmed for this circuit finally act with criminal intention is error, Sandstrom that a like most other always question you, Jury, a for magnitude, errors of constitutional can be determine. beyond held harmless a reasonable doubt. added).2 (Emphasis emphasized The above Kemp, Davis 1520-21; v. see 752 F.2d at instruction, mandatory amounts to which a McCleskey Kemp, also v. 877, 753 F.2d presumption on the rebuttable essential ele- (11th Cir.1985) (en banc). Davis 902-03 intent, virtually ment of is identical to the identified two situations where harmless impermissible ones in the recent found Su- (1) analysis appropriate: error would be Franklin, preme Court case of Francis v. guilt where evidence of the defendant’s — 1965, L.Ed.2d -, 85 105 S.Ct. U.S. (2) overwhelming; where the in was case en banc (1985), recent and in our 344 struction concerned an element of Kemp, 1515, of Davis v. 752 F.2d 1517-19 put crime which was not in issue at trial. (11th Cir.1985) (en banc). The state ar- Davis, Lamb v. (citing 752 F.2d at 1521 however, gues, gener- the trial court’s Cir.1982), Jernigan, 683 F.2d 1332, 1342 regarding al instruction the state’s burden denied, 1024, rt. 460 U.S. 103 S.Ct. ce 1276, proof respect every element of (1983)). Davis 75 L.Ed.2d 496 clari charged the crimes and the instruction stat- prong by recognizing fied the first that the person presumed that “a will not be analysis usually should focus on whether ”, act with criminal intent ... was curative intent, the evidence of rather than the any potentially burden-shifting instruc- guilt, more inclusive issue of is overwhelm Cupp Naughten, 141, See tion. 414 U.S. Davis, 10; see ing. 752 F.2d at 1521 & n. 396, 400, (1973) 94 S.Ct. 38 L.Ed.2d 368 Johnson, 73, 86, Connecticut v. U.S. whole). (jury charge must be read as a (1983) 103 S.Ct. 74 L.Ed.2d 823 of Fran- light This contention must fail in 90, 96, 97, 99, 101, id. opinion); (plurality cis v. Franklin which considered substan- 979, 982, 983, (Powell, tially allegedly 103 S.Ct. at identical curative instruc- accord, J., Franklin v. Fran- dissenting); tions and nevertheless held the instruction jury charge reproduced opinion. Appen- 2. The entire is dix “A” to this friend, Mary (11th Cir.1983), He and a marized as follows: cis, 720 F.2d — 1965, Carruth, U.S.-, at-, dropped Campbell off at William affd, Colbert, (1985) shop Georgia, so that (affirming “court’s con the barber at 1977 get intent was far could a haircut. Drake and Campbell evidence of clusion Thus, ”). many overwhelming mother’s ... Carruth then drove to Drake’s from cases, supper. as to intent can miles of town a error a few out for Sandstrom house Campbell the evidence of Later, knowing where had mur- be found harmless not overwhelming, barber, where there is even intent is robbed the Drake dered and de up as to whether the conflicting picked evidence Carruth returned to Colbert and Davis, 752 F.2d at laundromat, the killer. fendant was Campbell in front located 1521; see Brooks shop. also F.2d the street from the barber across 1383, 1390(llth (en banc). Cir.1985) Carruth, Drake, Campbell re- This then instruction intent so because the erroneous Madison, Georgia, their home in turned to jury’s deter usually could affect night. next they spent where intent, possibly and could mination of urged Campbell threateningly morning of who the jury’s determination affect take him Atlanta. Drake drove Drake to turn, then, to the killer We evidence was.3 him off dropped to Atlanta and Campbell to commit the perpetrator's intent there. charged con crimes Norton, Vir- Campbell was later found victed, the evidence to determine whether substantially ginia. Carruth corroborated overwhelming. intent although testimony, there Drake's evidence indi instance, The uncontradicted tes- discrepancies. For she some perpetrator struck the victim cates Campbell explicitly told tified head repeatedly in the with blunt instru night [Camp- that he on the of the crimes indicates that the ment. The evidence also barber, a killed the fact which had bell] with a knife victim was stabbed testimony. noticeably absent from bloody A knife and hammer perpetrator. pulled She also claimed that shop at the where the were found barber gun Drake and forced to drive killed. witnesses victim was Numerous corroborating tes- Atlanta. There was also effect there was testified to the that blood from of Drake’s relatives timony several over floor the walls of the all the and present at his mother’s that Drake was they shop at the scene barber when arrived during the crimes were the time house addition, In photographs the after attack. counsel, addition, perpetrated. defense corroborating put in evidence this tes through of the state’s cross-examination timony. There was considerable evi also suggest witnesses, attempted further damage concerning the extent of the dence Drake, Campbell, was the sole that done to the head. Several witness victim’s perpetrator. Finally, closing, defense barely the rec es testified that victim was argued Campbell the sole counsel that was ognizable. that the blunt Another testified was no testimo- perpetrator, and that there applied apparent such instrument with was Campbell’s than ny inculpating other Drake repetition force and that a hole size physical evi- self-serving testimony, while out gouged had been one's hand samples taken from bar- dence—blood victim’s head. the handle of bershop door and from pointed involve- presented Drake and testified trial hammer— testimony sum- ment. alibi defense. Drake’s is intent,” i.e., intent concept of “criminal A refinement the intent is elements further probable consequences. appropriate. particular respect The instruction here natural and intent, jury Hereafter, that is the refer- erroneous mandate we are when we refer presume the defendant intended natural meaning, will and ring latter our concern to this probable consequences of his acts. The overwhelming and there is be to determine whether charged jury expressly properly was and natural intended the that Drake evidence presumed. The "criminal intent” was not to be consequences probable of his acts. subsidiary here relates to erroneous instruction theory despite Campbell’s The state’s result accident or other nonintentional — that he testimony prosecution Therefore, as a witness conduct. there was overwhelm- having his hair cut when Drake simply perpetrator evidence that the intended the bar- came and robbed murdered v. Kemp, to kill. See Richard Tucker Campbell ber—was that both Drake and (en Cir.1985) banc) (unre- F.2d 1496 prosecutor The ar- committed the crimes. crushing, butted evidence of fatal blow to Campbell, he was gued closing that since pole negated skull with pos- victim’s metal asthmatic, severely physically could not sibility killing was accidental or other- have murdered the barber without some unintentional). However, wise malice mur- Thus, Drake. assistance from as discussed only theory der was not the submitted to below, the a fully more state asserted theo- prominent A jury. part prosecu- of the ry accomplice liability. theory accomplice tor’s case was the discussion indicates that there above liability. controversy who was considerable over argues Drake way that there is no Surely, perpetrator was the of the crimes. jury determine whether the found that implicating Drake killer evidence as the the actual killer and/or armed overwhelming. is not jury robber. evidence before the im- However, Davis Brooks make plicitly raised the liability issue of Drake’s many clear that in cases an erroneous in- accomplice as an robbery and mur- possibly tent instruction could not have af- der. The state indicted Drake on three jury’s who the fected the determination of murder, theories murder: malice felony was, killer and thus evidence murder, aiding abetting murder, a perpetrator’s overwhelming intent independently each of which could support harm- may erroneous intent instruction be a conviction murder under law. less. Brooks v. F.2d theories, felony two The last murder and 9; Davis, n. 752 F.2d at 1521 n. 10. If & murder, aiding abetting a do not re- only theory malice murder were the assert- quire finding that the defendant killed or state, theory ed or only sub- respect even intended to kill. With to felo- we jury, mitted to the would conclude that murder, guilt ny imputed as to murder is harm- erroneous intent instruction was finding from the defendant himself less on these facts. Under the mur- malice intentionally killed the victim while commit- theory, der issue for the ting felony; guilt another or as murder would have been whether Drake was imputed finding could from a present shop, in the barber co-participant victim killed the while the testified, elsewhere, testified, as Drake co-participant defendant and the were en- questioned and the instruction could have gaged in the commission of another felo- Rather, bearing had no on this issue. ny.4 respect aiding abetting and With to a only instruction would have been relevant murder, guilt imputed as to is murder perpetrator to of the issue of whether the “intentionally the defendant aids or abets death as the the murder intended to result Jury in commission the crime.” the of consequence probable natural or of the Instructions, Transcript Trial at 490-91. However, blows to the head. the unrebut- judge jury The instructed on all the three ted evidence here was that the blows were jury only gen- and the a repe- extreme theories returned administered with force and tition, guilty.5 not the of and this could have been eral verdict verdict, liability general per- accomplice 4. that the trial instructions Drake contends his court’s jury argument felony on two applies both the and the to convict theories of to murder mitted might aiding abetting robbery. jury of our The have found and theories. Because armed However, disposition regard aiding guilty robbery. abet- with to the and of the actual Drake ting theory, felony impute guilt jury not mur- we need reach the was also allowed to as to the theory. robbery by finding, pursuant der to the trial armed instruction, abetting' aiding and court’s robbery and abetted armed rob- Similarly, respect Drake aided 5. the armed bery. charge, upon jury a the returned which also helps and in guilty only on a and aids and abets the com- jury If found Drake the crime, they joined of that liability, is mission have theory accomplice then it of conspiracy And in into that themselves. the clear that the state’s burden Sand- law, responsible they the are from under prove would be to both strom context It beginning good the the end. is a killer, Campbell, in- presumably the actual designed punish everyone It is law. kill, that Drake intended to tended to and involved in the commission who is of Because the aid and abet the crimes. of charge The will crime. what repeated dealt the forceful and blows is; a crime party anyone and in text perpetrator, supra, see discussion directly indirectly that is either or in- that the actual killer intended we assume abets volved in it aids and or does question then to kill. The crucial becomes get to conceal it or anything another intent instruction whether the erroneous there; person away [my] law jury’s of affected the determination wheth- from Georgia all the ... the law over State aid and abet er Drake intended to applies every each and citizen. and [it] crimes. added); Transcript (emphasis Trial at 470 implicitly argues Drake that the evidence Transcript (prose- Trial see also 441-43 liability of Drake’s as an raised the issue opened closing argument by cutor read- accomplice, accomplice theory was relating Georgia statute to accom- case, and prominent part of the state’s plice liability, quoting and from a theory jury. was to the that this submitted co-conspirator ease to the effect that a who theory The of the case was that state’s get-away remains in the car while others present in Campbell both Drake and killing rob is liable for the a store shop participated and in the the barber merchant).7 might beating killing. jury well and aiding abetting theory and Campbell have was the concluded prominent throughout implicitly the trial: prime in both murder mover and Carruth, testimony in and and Drake robbery, merely armed and that Drake as- explicitly opening in the statements of both abetted).6 (i.e., The prose- sisted aided and sides, prosecutor’s closing initial and argued jury: cutor to the jury, to the coun- summations defense any conspiracy] law of means that [The closing argument, sel’s and the trial get people together, time two or more Thus, charge jury.8 court’s they speak; even have to if the don’t robbery choice to convict Drake armed mind thought crosses their and each solely and murder on the basis of Drake’s doing they knows what other is abetting the crimes committed aiding go do that act. Not unlawful squarely jury. before Campbell person if a commits crime and committing aiding abetting must inten- process it and Since it, joins tional, could concealing party and since that intent element another testimony jury accept that he mere- If convicted the basis of this ac- much Drake's (under complice theory picked ly dropped Drake him did not off and later victim), up Nonetheless, himself administer blows then later still took to Atlanta. theorizes, have to inferred that Drake jury may would have have presence abet mere intended to aid or from his rejected knowledge Drake's disclaimer shop or act in the barber from some of assist- Campbell’s plan to rob or harm the barber. (short blows) administering ance of himself Thus, might argues, jury have found probable consequence which the natural had by the crimes deliver- Drake aided and abetted furthering jury the crime. The erroneous crimes, picking ing Campbell to the scene of the proof shifted the burden of in the instruction escape helping up, Atlanta. him process. inference context, the district court found 8. another Also, suggests ac- 7. scenario of another trial, theory Campbell’s the State’s that "in complice liability as Drake contends follows. ” probably just ‘pick-up man.’ that Drake incredibility of the inconsistencies and 82-99-ATH, Francis, slip op. at 8 n. No. Drake v. Campbell’s testimony might jury led the have 15, 1982). (M.D.Ga. 4 Dec. testimony, reject and to much

1457 the erroneous bur- Brooks v. by affected 762 F.2d 1383 Cir. have been 1985) (en banc). intent, on the issue Part III will den-shifting instruction examine ar guments prosecutor made whether there is over- before us becomes propriety. case to determine their Finally, Drake intended whelming evidence Part IV will consider whether improper only crimes. The evidence aid and abet the arguments capital rendered Drake’s sen Campbell, this issue came from on tencing hearing “fundamentally unfair.” constituting falls far short of overwhelm- Donnelly DeChristoforo, v. 637, 416 U.S. ing evidence. 642, 1868, 1871, S.Ct. L.Ed.2d 431 18, Chapman California, 386 U.S. 824, (1967), S.Ct. 17 L.Ed.2d 705 sets out by which most constitutional the standard I. FACTS errors should be considered harmless. Un Following conviction, the trial Chapman, der a criminal conviction must court sentencing phase commenced the appellate reversed court cannot law, capital Georgia trial. Under say “beyond a reasonable doubt hearing designed bring out evidence complained error of did not contribute to sentencing provide jury relevant to the verdict obtained.” Id. at at S.Ct. guidance constitutionally with the required problem here is that the errone imposition penalty. of the death See to Drake ous instruction shifted burden Gregg Georgia, 428 U.S. 96 S.Ct. intent, disprove an essential element of (1976); 49 L.Ed.2d 859 Ga.Code Ann. aiding abetting. This the the crime of n § 17-10-2(c). capital sentencing Most Mullaney not do. See v. Wil hearings may state put consist of additional evidence bur, 44 L.Ed.2d 421 U.S. on the state and the defendant and (1975) (state proving has burden of closing arguments of counsel. every charged beyond element of the crime began by introducing The state evidence doubt). a reasonable Since this intent ele previous of Drake’s criminal record. case, ment was at issue since Drake had been convicted of the offenses overwhelming evidence that there was children, burglary, abandoning minor crimes, Drake intended to aid and abet the money obtaining writing. a false was not harm we conclude error This was the sole evidence introduced in beyond less a reasonable doubt. aggravation of sentence other than the evi- Accordingly, we conclude that Drake is dence of the crime itself. his Sandstrom claim entitled to relief Drake then took the stand. He stated respect robbery the armed both victim, sorry reit- that he was for the the murder convictions. erated that he was not the murderer. This TWO: PROSECUTORIAL SECTION put mitiga- forth in was the evidence ARGUMENT9 tion. opinion Part I of this section of the will closing attorney Each then delivered a discuss the facts relevant to Drake’s chal- Following argument jury.10 to the instruc- lenge prosecutorial argument sentence, at the jury tions on the issue of sentencing phase. Part II sets forth the It returned a retired for its deliberation. adopted by the murder count.11 standard of review this court verdict of death on might holding, of an alternative to address the issue of 9. We have declined to address Drake’s claim, argument sentencing. prosecutorial argument prosecutorial deci- since our require a new sion on the Sandstrom issue will Huff, Bryant gave closing prosecutor, 10. The and, robbery and armed trial on malice murder thus, argument transcript pages; al- that filled 8 sentencing hearing if Drake is found a new argument leged improprieties be ad- will However, guilty charge. for the on the murder opinion. dressed in Part III of this many reasons that it is desirable in cases same alternatively law, for district courts to address required 11. Pursuant to cases, capital statutory aggravating we exercise our several claims cir- to find at least one proceed beyond in this in the mode discretion to doubt in order cumstance a reasonable 1458 now at will exam- F.2d 1405-1408. We 762 REVIEW II. STANDARD OF arguments complained of Drake the ine F.2d at Kemp, v. 762 In Brooks legitimate they those sen- exceeded to see bane), Cir.1984) (en this court 1397 tencing considerations. for federal habeas the standard

considered closing ar prosecutorial corpus review argued jury by reading 1. Huff to the only argument will Improper guments. the quotes opinions Georgia from two petitioner’s if it renders a warrant relief Supreme Court: “fundamentally sentencing unfair.” trial connection, your please, If Honor in in De- Donnelly v. (citing 1399-1400 at F.2d 762 my urging you this to the jury, to submit 637, 642, 416 94 S.Ct. foro, U.S. Christo Georgia, Supreme the State Court 1871, (1974)). 1868, 40 L.Ed.2d 431 That State, Georgia Hawkins v. in 25 depends whether there is on determination Ga., Court, page upholding that, in the ab probability a reasonable murder death and the sentence the out improper arguments, sence of case said “Human life is that this: sacri- have been come would different. F.2d day throughout at this the land ficed (citing Washing v. at 1401-1402 Strickland life more indifference than the of a —ton, U.S.-,-, 2052, 2069, 104S.Ct. good dog, especially dog.” if it be a (1974)). A L.Ed.2d “reasonable They went on to hold that Cain was the probability is a sufficient to probability” murderer, who was the last is first but in the outcome. confidence undermine only known to those who have read this — U.S. at Washington, Strickland said, they morning’s papers. And “If -, at 80 L.Ed.2d goes let our unpunished, this crime skirts stain of at least be free from the blood argu- must review first examine Our guiltiness.” arguments if improper itself to see ment find an im- made. Because we do your please, If in Eberhart v. Honor argument, we proper prosecutorial will [598], page Al the Justice Ga. whether there is a reasonable then consider Court of said probability this, outcome of Drake’s the death sen- connection with sentencing hearing have, however, differ- would have been tence for “We murder: argument not been made. sympathy sickly ent had no with that sentimen- tality springs action into whenever

III. PROPRIETY OF is at to suffer for a criminal last about PROSECUTORIAL may sign It of a tender crime. ARGUMENT heart, sign of one not is also proper Society regulation. under de- argument claims made punished, mands that shall be and Bryant during capi crime by prosecutor Huff warned, humanity the false criminals sentencing hearing impermissible. tal when the axe of subjects that starts shudders Georgia prosecutor may argue A ready dangerous justice is strike is a capital sentencing jury’s to the relevant society.” The peace for the subjects element generally Those include decision. say, on had too crime, went “We have character the facts of individual mercy. of this It is not true mer- (including much future istics of defendant criminal, cy. It but we looks dangerousness prospect), and rehabilitative mercy society.” And if must insist on justifications for penological and the valid please, went (retribution, your Honor the Court incapacitation, punishment hold, case, for criminals deterrence). and in that general Brooks aggravating jury finding aggravat- two cir- support no found death. If found, support may death for the murder— not be cumstances death circumstance (1) aggravating was committed imposed. murder If circumstance does (armed exist, felony capital rob- may discretion in course another exercise its “outrageous- (2) bery), offense was choosing imprisonment and between life death vile, wantonly ly inhuman.” punishment. horrible and appropriate See Zant v. as the 17-10-30(b)(2) (b)(7). Ann. Ga.Code Stephens, §§ Ga. See 297 S.E.2d

1459 disgrace guide capital is a to our to go unpunished sentencing by principles civilization, reaped we have the from the Eighth drawn pro- Amendment’s against frequency fruits it in the in which the punish- of tection cruel and unusual bloody They that a In Georgia deed occurs. said ment. the current capital pun- “stern, unbending, unflinching regime, sentencing adminis- ishment jury has laws, regard penal complete tration of the without discretion to choose between life sex, position highest that imprisonment it is the or death finding after the of civilization, statutory mark and it aggravating of is also the one circumstance. prevent 97, Stephens, surest mode to commission Zant v. 250 297 Ga. S.E.2d 1 (1982). Mercy may of offenses.” part be a of that discre- Attributing contrary tion. view to the extremely Drake claims tactic was im- this highest misleading state’s court was proper. agree. We prejudicial. We will further consider the Arguments wrapped delivered while argument effect of in Part IV of this authority the cloak of state have a section.12 heightened jury. on the impact For this deterrence, spoke 2. Huff expressing reason, prosecutor, nor misconduct that, his it although belief could never be public official, mally an must elected proven, the death penalty did deter crime: carefully. Berger scrutinized United v. your please, If Honor there are States, 78, those 629, 55 295 S.Ct. L.Ed. U.S. 79 capital punishment. who do not believe in (1934). 1314 we con Kemp, In Brooks v. say They that it is not deterrent. If argument pros sidered that stressed the please, your Court, Honor I submit to the infrequency seeking ecutor’s the death proven. deterrence can never be suggest sub- penalty in order to that defend Court, capital mit to the punishment particularly ant deserving was of death. capital punishment law does deter. The invit argument That F.2d at 1410-1411. 762 light law is like the that house stands rely expertise on the jury ed the light the sea that casts it out on the prosecutor exercising fully [sic] instead its ships pass treacherous course for the punishment. own discretion to choose We safely through. your if yes, Oh Honor argument improper. held that to be See please, ships we can’t all the count F.2d also Richard Tucker v. 762 light passed way its and directs its 1496, (11th Cir.1985) (en banc); 1505 Wm. safely through, course and makes it 1480, Boyd Kemp, 762 F.2d 1484 Tucker v. easy ships it’s to count the that wreck on Cir.1985)(en banc). guiding light. shore do not heed that invoking expertise If submit, your please, And I Honor prosecutor dangerous, is invocation deter. it does abjure Supreme Georgia Court criticizes this comment as an unreli- Drake mercy undeniably wrong. Hawes v. opinion. personal able 327, 833, State, 240 240 840 Ga. S.E.2d (1977). Huff, personal surprisingly, attorney’s opinion An failed quoted sentencing mention cases each to the of a that the is irrelevant task jury. years say, over 100 each Brooks old. Needless to v. Kemp, 762 F.2d at 1408. Nevertheless, pre-dated contemporary judicial effort is a valid deterrence ration- Although Georgia Supreme explicit- opinion) (panel (accepting state’s distinction ly disapproved prosecutorial argu- "rely this same over would technical form substance State, ignore ment Hawes v. 240 Ga. 240 S.E.2d and audience the fact that the intended would was, fact, jury’’); (1977), see rejected also Potts of error v. assertion Zant, (11th Cir.1984) 734 F.2d 535-37 ground prosecutor on the technical con- fact, (same). argument the Drake tinually during worse your please” said "if Honor Hawes, prosecutor than where the argument, thereby argument least addressed the quoted informed the that the cases were over jury. court and not Drake Drake, years old. In Huff made no such re- 241 Ga. 247 S.E.2d This implication quotation mark and the clear of his unpersuasive distinction cure does not "this is the view of the recognized impropriety of remarks. Court.” Francis, (11th Cir.1984) 727 F.2d shows, previous imposition penalty. As our discussion of the death for the ale 184-87, quotation Georgia, misleading, 428 U.S. extended was le the Gregg 2930-32, L.Ed.2d 859 S.Ct. ne gally prejudicial. incorrect Huff consider jury quoted A is not barred from inform glected jury the punishment. in its choice of ing deterrence Thus, years were over 100 old. the cases 1407-1408; Col Kemp, Brooks v. 762F.2d at jurors probably have understood the would Francis, 1322, 1339-40 lins v. 728F.2d quotations contemporary to reflect “law” Cir.1984). Technically phraseology the argument Huff’s constituted in the state. opinion expression personal of avoided the the misrepresentation affirmative of an submit") argu the the (“I content of Following finding aggravat of an law. im clearly proper. We find no ment was circumstance, granted jury is full propriety. impose imprisonment or discretion to life appropri as is an death. Just retribution that Finally, complains 3. justification imposing capital for sen ate Gary Gilmore: improperly Huff referred tence, Gilmore, F.2d at your please, Kemp, will “Gary Honor Brooks may opt mercy impose life jury anyone again.” kill else never power at imprisonment will. The ultimate completely proper for It would have been life, impose jury no matter how of argued Henry Drake have "If is Huff to dangerous the crime the de egregious executed, again.” he will never kill Such fendant, recog system’s is a tribute to the acceptable as a comment would have been mercy sentencing acceptable nition of an (or specific in- reference to the deterrence rationale. penalty. effect the death capacitation) of tautology that it The remark is such a a defendant mercy To state towards hardly potentially preju- could be seen as capital law or is in a case contravenes the Gilmore, Referring to a man exe- dicial. upon by Supreme frowned trial, cuted near time Drake’s was not Georgia jury’s at strikes the core of context, argument Read in improper. capital sentencing. Huff’s claims role comparison invite an unfair be- did not sentimentality,” mercy “sickly two men. tween the humanity,” “dangerous ele- “false and a peace society,” funda- ment for the IV. WAS DRAKE’S SENTENCING penalty mentally opposed to death current HEARING FUNDAMENTALLY Thus, suggestion that jurisprudence. UNFAIR? mercy inappropriate a mis- only improper argument at Drake’s law, representation of the but it withdrew Georgia sentencing was the use of old Su- sen- jury one of the most central from suggest mercy cases preme Court considerations, likely most tencing the one inappropriate consideration for decision in favor of life. to tilt the improper argument Drake. Because the prejudice exceeded Finally, the remark’s solely mercy, propriety focused legally factually misleading and even its it influenced the we do not believe that of the attribu incorrect character because finding aggravating circumstances.13 Ab Court. tion to must, however, whether We determine attribution, claim would have sent probability that the there was a reasonable jur prejudicial. Telling the severely been argument changed jury’s ex- improper was that of the sentiment ors life choosing discretion in between ercise of a severe highest court state created imprisonment and Brooks v. death. See such an danger they would defer to (Georgia sen- F.2d at 1408-1409 judgment in their choice expert legal in- tasks; arguments tencing jury has two relief). the sole though Even this was upon may require penalty.14 fringing either general charge, did brief- the trial court aggravating in this 14. In its circumstances found facts in ly could consider instruct the that it supra. case are discussed note justifica- constituting mitigation, defined as not impropriety closing, Huffs is extreme ment rendered sentencing proceed- disturbing. ly ing fundamentally unfair. argument considering light this foregoing reasons, For the Drake is enti- ease, we facts this conclude that tled respect to relief with to the sentencing probabili- Drake has shown a “reasonable phase prosecutorial on his argument claim.

ty” improper remark caused the death verdict. While the evidence aof SECTION THREE: CONCLUSION vicious attack on Eberhart was overwhelm- For. the One, reasons stated in Section ing, implicate the evidence to Drake was the judgment of the district court denying not. See Brooks v. 762 F.2d at 1402 corpus habeas relief on the is- Sandstrom (recognizing n. 27 appropriate that it is sue is REVERSED. The case is RE- this context to consider weakness in the MANDED to the district court with in- guilt important evidence of aspect since an grant structions to the writ of habeas cor- jurisprudence of the is to minimize the risk pus, upon conditioned affording state’s executed); person that an innocent will be — Drake a new trial. also, Washington, see Strickland v. -, —-, 2052, 2069, U.S. 104 S.Ct. For the Two, reasons stated in Section 674, (1984) (“a L.Ed.2d verdict or con- judgment of the denying district court only weakly supported by clusion corpus habeas relief on prosecutorial likely more record is to have been affected argument issue is REVERSED. overwhelming errors than one with respect With to the issue whether the support”). against record The state’s case trial court’s instructions at sentencing completely by Drake was made almost co- properly jury informed the of their abso- Campbell, try- defendant William who was lute impose death, discretion not to we ing deny his own involvement in the panel reinstate the opinion AFFIRMING crime.15 Drake did sup- have witnesses the district court’s denial corpus of habeas porting jurors his alibi. The deliberated at relief.17 length finding guilty, before and the felony-murder court’s aiding and abet- APPENDIX A

ting impossible instructions make it they know how viewed Drake’s involve- THE CHARGE TO JURY ment in the murder itself. Under all the gentlemen jury, Ladies and circumstances of this in this Huff’s extreme- Drake, ly case of the improper century-old Henry use of the State versus Jury Grand suggest County Court cases to of this has returned impro- priety against Drake, of mercy Henry charging indictment confidence “undermine[s] in the him sentencing proceed- outcome” of his with the offenses of murder and armed — ing.16 robbery. Washington, charges expressed Strickland v. And the U.S. at-, 2069, language is, 104 S.Ct. at L.Ed.2d at of the indictment in sub- stance, 698. We improper argu- conclude that the as follows: excuse, mercy despite tion or but which objection. in fairness or the lack of an This kind of may Although considered extenuation. improper remark so the trial court helpful, curing we do not view this as interrupted stopped should itself have strongly improper impact argument. of Huffs prosecutor. ABA Standards for Jus- Criminal tice, 3-5.8(e) (1980) ("It responsibility is the testimony later recanted his argument the court to insure that final claimed to have committed the crime himself. bounds”). kept proper accepted within The recantation was the basis of Drake’s extra ordinary reject motion for new trial which was ap- 17. We decline to reach the other issues on ed. Drake v. 248 Ga. 287 S.E.2d peal, exercising our discretion not to do so in denied, cert. 457 U.S. light granting of our resolution case relief L.Ed.2d 1322 grounds. on other 16. We find the remark so under serious circumstances of this case that we it consider upon

The Defendant enters the trial of presumption this case with the of innocence chosen, selected, Jurors “The Grand favor, presumption in his and that remains Madison, to County of for the sworn throughout with the trial until and them, name “in the wit,” names and then prov- unless the State carries the burden of Georgia, the citizens and behalf ing allegations the material of this indict- Henry Drake of the charge and accuse beyond a ment reasonable doubt. deter- the of- aforesaid with county and state mining whether the State has carried this robbery. the said For armed fense of burden, you will consider all evi- day Decem- Drake, 5th on the Henry dence has been introduced here dur- Lord, in the Year of Our ber you. the trial before Now ladies and there, aforesaid, un- then and did county gentlemen, a reasonable doubt means ex- arms, force and lawfully, and with actly says. It what is a doubt based on theft, took from commit intent to giv- reason and for which a reason can be presence in the immediate of and person may through en. A reasonable doubt arise following property, of C.E. Eberhart a consideration of the evidence or because the value cash—of to wit: $300 insufficiency of a lack or of the evidence. men’s of Timex watch one $300—and A is a vague reasonable doubt or con- $10, be- properties of said of both value doubt, jectural imaginary it is not an or Eberhart, by the property of C.E. ing the doubt, arbitrary capricious and it is not a or and a claw hammer a certain use of fanciful doubt. Neither does it mean a knife, being offensive the same certain possibility may that the Defendant be inno- this contrary to the laws of weapons, cent, it means a doubt for which a peace and good order and state and the specific given. reason can be Now while dignity thereof. requires prove law State to afore- 2: And the Grand Jurors “Count guilt beyond Defendant’s a reasonable aforesaid, said, in the name on their oath yet require the law doubt does not Georgia, the citizens of and behalf of prove guilt State to the Defendant’s to an charge accuse the said Hen- and further certainty. absolute or mathematical having the of- ry with committed murder, the said accused in of fense criminal there, gentlemen, in a ladies and county did then and Now aforesaid is, arms, you the case, the law makes unlawfully, with force and and which this and The facts aforethought, kill and mur- and the law. malice the facts judges with of Eberhart, being, produced to a human the evidence you der C.E. from obtain hitting you his head beating and about The law throughout this trial. you hammer, a certain claw body you and given as from the Court obtain knife, by stabbing him with a certain any verdict you that Charge. I instruct December, 1975, day the 5th with the may in connection you render time a mortal wound and wounds which you for determination now before matter upon the said C.E. Eber- inflicted these facts and arrived at from be should by the said accused in the aforesaid hart be, applying those them to you find as wound and wounds manner of which said you Charge given as to the law facts on the 21st Eberhart died of said C.E. this Court. March, contrary day to the laws order, good peace, said Jury, gentlemen of the ladies and Now dignity thereof.” judges you made law the exclusive are and the credibility of the witnesses of the Jury, of the gentlemen ladies and Now testimony. give their weight you shall has filed indictment Defendant in this to all the witnesses applies That plea guilty.” of “not Neither entered his credibility, you determining their case. plea of nor the Defendant’s the indictment facts and circumstanc- may all the consider to be guilty” evidence and are not “not are may You consider however, of the case. es Together, regarded evidence. may testifying. You manner to witnesses’ are they frame the issues may con- intelligence. You their consider and determine. decide gentlemen

Now ladies and Jury, I charge you that the Defendant this case they had opportunity their means sider has tending introduced evidence to show they knowing the facts to which testi- present that he was not at the time and may You consider the nature of the fied. place alleged of the commission of the of- they may to which testified. You facts fense for which he is here on trial —of- probability improbability consider the If, fenses. after the consideration of all credibility personal insofar as the their evidence, you have a reasonable doubt appear may legitimately from same present that the Defendant was at the time directs, trial of this case. The law also the crime or crimes was or were commit- gentlemen, your that it shall ladies and be ted, acquittal. he is entitled to an duty conflicting all testimo- to so reconcile if there such in this whenever it ny, gentlemen, Ladies and I so, may charge you that done that all the witnesses

can be truth, perjury a criminal intent is a material speak made to and neces- be sary ingredient any But if impuded prosecution. or attributed to none. criminal any testimony in charge you there is this ease which I person acts of a conflict that this can- in such irreconcilable presumed sound mind and discretion are done, your duty then not be it would products person’s be the of a will and a the evidence which seems most rea- believe person of pre- sound mind and discretion is you, considering sonable believable sumed to intend the probable natural and the facts and circumstances of the case. all act, consequences of his but both of these presumptions may charge be rebutted. I charge you gentlemen, ladies and Now you, however, person that a will not be impeach that to a witness is to show to the presumed act with criminal intent but Jury that such witness is satisfaction of the may the trials of fact find such intent from unworthy may of belief. A witness be words, conduct, consideration of the de- impeached by disproving the facts testified meanor, motive, and all other her, circumstanc- by proof by to him or or of contra- es connected with the act to which the dictory previously by made statements prosecuted. accused is here You are the relating or her as to the matters to his or facts; therefore, testimony ques- ease. When a triers of the it is a her and to the successfully con- solely your witness shall have been tion of fact for determination fact, as to material his or her tradicted a a to whether or not there was criminal credibility as to other matters shall be for Defendant, part intent on the of the consid- determine; Jury, the to but if a wit- you, ering the facts and circumstances as dis- willfully knowingly shall and ness swear deducting by closed the evidence and the falsely, you right, though the not the have might reasonably deductions which be reject testimony in duty, to his or her its drawn from these facts and circumstances. entirety you unless find his or her testimo- may Now while a criminal intention be by unimpeach- ny to be corroborated other proven way, question in more than one the given to a able evidence. The credit be of whether the Defendant did act with testimony, impeached for witness’s where finally always and a criminal intention is Court, contradictory statements out of question you, Jury, the to determine. for determine, you, Jury, for the the shall be gentlemen Jury, of the Now ladies and credibility being matter al- of witnesses a charged in this indict- one of the offenses Jury ways by determined the under charge you of murder. I ment is that proper from the If an instructions Court. he is un- person a commits murder when impeach a witness effort has been made to aforethought, ei- lawfully and with malice witnesses, you for or that would be —either death of implied, or causes the express ther in-Court statements or otherwise—that Express malice is being. another human you for to determine. In the final would be away to take intention that deliberate gentlemen jury, analysis, ladies and creature, is manifest which life of a fellow given any weight credibility to be proof. capable by external circumstances question you, Jury, is a for evidence implied no considera- where Malice shall be determine.

eral it. A homicide is committed in the perpetration of a felony when it is commit- all appears where provocation ble by ted engaged accused while he is killing an aban- of the show circumstances performance any required act for the malignant Legal malice heart. doned and full execution of felony. charge such I you necessarily ill hatred. It is will or is not you that if find beyond and believe a rea- unlawfully kill a human intention to sonable doubt that alleged the homicide justification mitigation, being without or this indictment by was caused the Defend- intention, however, exist at the must he, ant accused, while the said inwas com- it is not killing alleged; time the mission of a felony, just given as I have have existed necessary for that intention to you Charge, you would be authorized to killing. length of any time before convict murder; the Defendant of and this contemplation, may form legal a man In you would be authorized to do whether the being, kill a do the intention to human Defendant intended to kill the deceased or thereafter, regret killing instantly homicide, not. A though unintended, words, soon as it is done. other deed as committed the accused at the time he is killing of another is the intentional murder engaged in the commission of some other miti- being justification or without human felony, constitutes murder. gation. charge you person a I further that Now charge you I in regard Now further that when in com- the crime murder commits robbery: person commits to armed armed felony the death of mission of a he causes theft; robbery with intent to commit being of mal- irrespective human another person property takes another from the believe, you be- charge that if ice. immediate of another presence or the doubt, any yond a reasonable time weapon. use of an actual offensive returned this Bill of Indictment was before offense essential elements of the this filed with Grand prove beyond must State reasonable therein, Defendant Jurors named that this taking are: the must have been doubt person trial did kill the named It must purpose commit a theft. have alleged indictment manner as robbed, person against been will killing afore- malice was with by open, menacing, it must have been express implied, and fur- thought, either threat of an immediate or use offensive person the intention to kill such ther that weapon. weapon An offensive one necessary ingredient as a to present usual, in if used accustomed man- which its crime, you then be authorized such would likely produce to The charac- ner is death. murder guilty find the Defendant of as to weapon may ter of a such be established as hand, you charged. the if have a On other by direct or other evidence sufficient to as reasonable doubt to the Defendant’s weapon. it to be If establish an offensive murder, guilt the offense then it of of beyond you find and believe a reasonable duty your give be to him the benefit would the committed such doubt that Defendant acquit as of that doubt him insofar the offense, you authorized to find would be charge I charge of murder is concerned. guilty robbery. the Defendant of armed you you find beyond that if a reasonable doubt that the Defendant committed the gentlemen Jury, of the I Now ladies alleged in Indictment homicide this Bill of necessary the charge you that it is not in the commis- engaged at the time he part original murder a of the of be crime felony, wit, robbery, you of a armed sion design offense of armed to commit the guilty of be authorized to find would enough it is that it be one of robbery, but connection, charge you In this I murder. consequences probable the incidental and have in order for been homicide design par- of the execution of the of the perpetration particular of this done ties, at the moment to appear and should felony, must be- there be some connection expedient, participants to be felony one of and the homicide. The tween case, In such purpose. common pur- have to the must done homicide been slayer actual and acts of the not collat- intents of the unlawful act and suance

stances so relied upon, then you would imply where the remaining although he be party, the other impuded to circumstances which you believe are so participating clearly merely present proven establish guilt of does not original design and he himself Defendant beyond a reasonable doubt, inflict the mortal wound. and are inconsistent with any other reasonable hypothesis save per- gentlemen, the law Now ladies and that of guilt. mits, have had experts, as witnesses who training, knowledge experience special gentlemen Now ladies and Jury, of the lines, opinion give in certain their based charge you type felony, particular upon knowledge their of mat- you lawfully upon cannot convict the testi- given weight is to be ters. which mony person concerning of another expert you is for opinions witnesses may accept You it and act on or commission of the crime alone. Before decide. your judg- then own reject authorized, it and act testimony condition is ment, in this you apply it to evidence person another concerned in the commis- case. sion of the crime must be corroborated and supported by proof independent facts or gentlemen, is of

Now ladies and evidence circumstances which of themselves lead to direct and indirect or two kinds: evidence guilt Defendant, is an inference circumstantial evidence. Direct evidence of the of the ques- immediately points to the only that which charged that the crime was com- Indirect or circumstantial mitted, tion at issue. per- but Defendant was a only is that which tends estab- evidence son concerned with its commission. In oth- by proof lish the issues of various facts words, er the corroboration must be not consistency, hy- sustaining, by their only to the effect that the crime was actu- pothesis or conclusion claimed. com- someone, ally committed but also must evidence parative rate of circumstantial be such as to connect the Defendant with any given issue in and direct evidence on person the criminal act as a concerned with question they are in conflict is a testimony commission of crime. The Jury, any. if fact for determination person one other than the Defendant con- warrant a condition of circumstantial To crime, cerned in the commissions of if there evidence, proved facts shall not determination, your be more than one in hypothesis guilt, consistent with the satisfactory Jury, may be sufficient every hy- shall exclude other reasonable testimony corroboration of the of another guilt pothesis that of the of the ac- save person than the Defendant concerned other guilt of the Defendant cused. When the felony in the commission of the crime in a alone, depends on circumstantial evidence case. if it which is a matter for to determine not, separate the rule is that each does or Jury, I gentlemen Now ladies and chain circum- fact or issue linked further, every person charge you con- guilt from which the deduction of stances cerned in the commission of a crime is a clearly sought is to be drawn must be thereto, charged party may and be with A proven beyond a reasonable doubt. fact and of a commission of the crime convicted clearly proven or circumstance not so shall person A or crimes. concerned Jury part as of not be considered directly if he com- of a crime commission the chain of circumstances but should be intentionally the crime himself or aids mits prov- rejected by you. The circumstance so the crime or or abets in the commission of complete en must be a unbroken chain and counsels, advises, encourages, intentionally with the De- must not be consistent the crime or procures or another to commit every guilt, fendant’s but must exclude abets” com- phrase “aids and crimes. that of hypothesis other reasonable save given by any all assistance prehends and guilt If or more of of the accused. one acts, words, the com- encouragement in or relied on the State the circumstances act, knowledge with a criminal mission of that rea- clearly proven not so and for are perpetrator. of the purpose of the you reject one or more of the circum- criminal son beyond

evidence a reasonable I doubt. fur- charge you ther presumption that no unfa- Jury, I gentlemen of the and Now ladies vorable to the State would arise from the admission or that an charge you further failure to introduce them as witnesses. applied to a as incriminatory statement by the Defend- statement case is a criminal gentlemen Jury, of the I Now ladies in advance of out of Court ant made trial, charge you purpose of this fact, to the pertinent or facts the trial every legal investigation, and indeed is to with other tending in connection are issues truth, purpose discover the and that is the guilt prove to and circumstances facts legal investigation of this and all other disprove some defense or the accused investigations. legal gen- Now ladies and De- accused. Whether up by the set tlemen, question the ultimate which the any make admissions or did not did fendant you Court submits this time is the question of fact for is a such statements or admission, question guilt state- of the Defendant’s or inno- All or determine. you to made, must charged. have cence of the ments, proved to been two crimes You if with care and received yourselves with any be scanned would not concern with ulti- They must have been made great caution. time, questions that, mate save at this voluntarily slightest freely without guilt in charges or innocence of the remotest fear of hope or the of benefit indictment. made, they cannot be injury. If not thus gentlemen Jury, Now ladies and of the I your ver- by you arriving at in considered charge you Judge further if I as dict, entirely disregarded and should be anything this Court have said or done dur- An or state- your deliberations. admission ing the without, itself, course of this trial which indicate to autho- or of ment will not conviction; you that I you preference be had a desire or as to and before would rize parties prevail, there must other of the to convict should either authorized Defendant, which cor- proven you facts and circumstances or the State I want and, conjunction the admissions completely your roborate disabuse this from mind. therewith, beyond a rea- satisfy your minds cannot, not, I and do have a desire or accused. guilt of the sonable doubt of preference party in this case as to which statement, if there be or such An admission prevail. my duty should It is see in this would be classified such fairly presented you, this trial is accord- circumstantial evidence. Law, you, and leave it to ladies Jury, I gentlemen gentlemen Jury, of the of the to reach a fair

Now ladies not rest charge you that a conviction must speaks and true verdict that truth conjecture, possibility upon suspicion, case; you. do so leave it to all the facts and circumstanc- guilt. Where Jury, gentlemen ladies and Now deductions the case and all reasonable es of be, verdict, may must be your whatever theories, one of in- present therefrom two all 12 Jurors. verdict of the unanimous Jury guilt, if the nocence and the other required to surrender Now no Juror finds, Jury be authorized so would an honest opinion because or her honest acquit Defendant. On the and should another Ju- opinion of difference—different hand, should find that the State other purpose of ror or other Jurors —for beyond reasonable doubt ev- proven has Jurors reaching a unanimous verdict. ery allegation material one or both and delib- one another indictment, should consult with in this alleged in charges reaching a unanimous view of to convict erate you would be authorized case consciences beyond a reasonable doubt. with their you believe this consistent verdict must make Each Juror oath as Jurors. case, the charge you: I in a criminal Now only after a fair but individual decision upon produce prosecution is not called of the entire consideration impartial every eyewitness to the transaction. A Juror fellow Jurors. their case with places upon the which the Law burden his or her to re-examine not hesitate should is to establish the Defendant’s prosecution opinion after change his or her competent views and charged by guilt of the crime

1467 say you much and I I go wish could could home, going I’m but to have to ask Mr. and delibera- impartial discussion fair and Seagraves you place to find to sit and Jurors, is honest- the Juror with other tion yourself go make comfortable. You can’t change that he or she should ly convinced Jury you go with the but will have to Every effort consistent opinion. or her place any another and not have just given you, discussion I have the instructions with anybody. oath as Jur- with your consciences and and with

ors, fairly honestly made to should in this case. a unanimous verdict

reach HILL, Judge, specially Circuit JAMES C. However, say you should this is not to concurring: your convictions as surrender conscientious gentle- ladies and an individual. This I judgment concur in the of the court men, Jury, by some select- must be decided because the instruction in this case violated Jury manner as this ed in the same this circuit in Davis by the rule articulated selected, is no reason to believe and there (11th Cir.1985) (en 752 F.2d 1515 Jury yourself qualified than that a better banc), Court in Fran- ever be chosen. would — Franklin, cis v. -, U.S. 105 S.Ct. Jury, gentlemen Now ladies 1965, (1985). I reiterate 85 L.Ed.2d 344 charges you your further the Court Davis, Franklin, my view that and now go your Jury duty at this time is to represent new extending rules of law Room; concerning no deliberation make Montana, case of Sandstrom v. 442 U.S. you sends word to this case until the Court (1979) 99 61 L.Ed.2d S.Ct. to a time, you will be under start. Until set of facts with which that case was un- has instructions as the Court the same Davis, See concerned. F.2d at 1522 at given you you when previously (Hill, J., dissenting). you instruc- recess. When the Court sends I also conclude that the error occasioned deliberations, you may then tions to start in- impermissible shifting this burden so, you’ve After not until that time. do but harmless, I believe struction was not deliberations, thing the first your started analysis by which the court reaches suggest you do is to elect that I would that conclusion to be redundant. deter- evidence, that, a foreman. After jury charge mining whether an erroneous brought in documentary will be items your see whether the you may begin was harmless we look to you, and after jury’s guilt conclusion of could have been deliberation. tainted the error. Here we deal Jury, in gentlemen Now ladies and intent; fact question if intent is not a witnesses, I fur- regard impeachment However, possibility no of harm. there is may be charge you ther that a witness the reason intent is not at issue —whether by prior of the wit- impeached convictions in the face it was uncontested or contested felony. ness of a overwhelming evidence —is immaterial. Jury, I gentlemen of the Now ladies and majority’s I two For this reason believe your verdict in charge you that the form of unnecessary and that part formula is “We, be, as to this case will Count simply intent proper inquiry is whether Defendant,” “guilty” either Jury, find the was at issue in the case. charge I guilty of 1.” And or “not Count regard your that the form of verdict two of the I further concur section “We, murder, is: to Count which is holding prosecutorial re- majority’s opinion Jury, guilty,” or “not find the Defendant sentencing phase during the marks made will date it and let guilty of Count 2.” You fundamentally unfair trial were of Drake’s this instruc- your sign foreman it. With DeChristoforo, Donnelly violation tion, Bailiff, Jury Mr. take them 637, 642, U.S. Room. because I do so L.Ed.2d 431 argument agree only improper alternate “[t]he as an Ms. McGinnis has served use of old sentencing was the very appreciate case and we Juror 1468 opportunism

termed when the conflict end- Georgia political ed. was defeated. The suggest cases to Supreme Court Georgia opportunities at that time available considera- inappropriate mercy was that by not for those who stood defeated and op. at Op. Slip Majority Drake.” tion comrades; they resentful were found 4590, light of the extensive at 1460. In military in govern- reconstructionist issue, single on this litigation history of McCay lingered ment. long among his courts, I consider and federal in state both people. He embraced the reconstruction to make entirely inappropriate it not party, joining Georgians called “scala- following observation. 3 wags” by their fellows. He was reward- are conducted country, trials In this important post ed with an in the Constitu- When system. adversarial through the tional in Convention 1868 which no Geor- one of the properly, operates system gian join perceived oppres- who did not by overreaching from inhibited advocates Indeed, permitted sors was to serve. the other apprehension well-founded McCay chaired that convention’s committee skill, the overstate may, by seize advocate judiciary, on unexpected and it was not Had the upon its author. turn it ment and government’s governor, that the new first properly system functioned adversarial Bullock, appointed Rufus McCay to the quota resorted to prosecutor first a when Georgia Supreme new Court. Eberhart,1 of Geor the courts tions from argu probably have heard gia would McCay high In that office saw welding prosecutor, no more.2 ment govern- military complete control of opinion before to the Eberhart his case Georgia it was there ment over —and county could deep South Eberhart, opinion deploring he wrote his regret that choice—for made to have been denouncing mercy typical of the citi- future. and, political perhaps, his case Supreme It of this zens of that state. the Atlanta Constitution Court his home- adversary had done who An and Benedict say, “Judas Iscariot later to that the Eberhart have found work would compared” to these. blush if Arnold would Supreme by Georgia written opinion was (pro- McCay Henry Kent Justice completed counsel had defense When told, nounced, ‘McCoy’). jurors I am Some course, he might not history short might have taken Georgia courtroom in a something like said have McCay reached the just how an interest Court, where he wrote State’s surprised that these words I am not denouncing mercy he had observed McCay mercy were written ‘Justice’ Georgians. the character of high only with the office who came bayonets backing of the merciless Pennsylvania who native of McCay was a and out- But I am astounded oppressor. from graduating Georgia after moved to quoted should be raged that these words in the Con- Although he served Princeton. Solicitor, here, elected wounded, gleefully, our dis- Army, and was federate county, as a state- people of our might have an advocate played what 49, State, (Ga.1978); 241 Ga. 243 State, (1873). Presnell v. 59 47 Ga. 598 1. Eberhart v. State, (Ga.1978); 240 Ga. Hawes v. S.E.2d 496 State, 327, (Ga.1977); Jackson v. 833 240 S.E.2d Unfortunately, the case. such has not been 2. 819, (Ga.1964); (approv- S.E.2d 375 Ga. 136 219 (11th Cir. Young F.2d 514 v. 758 See reading ing the Eberhart). Zant, (11th 1985); Cir. F.2d 526 Potts v. 734 (N.D.Ga.1983); 1984), v. F.Supp. 374 575 dictionary Scalawag acquired definition: has Cir.1984). Francis, also See 727 F.2d 990 rascal, [origin 1: "Scalawag” unknown] n. 62, State, S.E.2d 895 246 Ga. 268 Wilson v. value, little scamp, reprobate; animal of 2: an 368, (Ga.1980); 265 Campbell, 245 Ga. Zant v. smallness, age; feeding, poor esp. because State, (Ga.1980); Hardy Ga. 245 S.E.2d acting Republican in as a Southerner 3: a white State, 272, (Ga.1980); Bowen v. 264 S.E.2d 209 War. the Civil after of reconstruction the time (Ga.1979); 244 Ga. 260 S.E.2d 855 Ruffin doings "scalawagery,” conduct or n. the also See (Ga.1979); State, S.E.2d 472 243 Ga. scalawag. aof (Ga. State, 241 Ga. 247 S.E.2d Drake v. Dictionary State, Third New International Websters 1978); 243 S.E.2d Potts v. 241 Ga. (Ga.1978); S.E.2d 241 Ga. Lamb v. 1469 adopted by the majority at the beginning of argument: its that “evidence of intent [can people you ought ment of the sort of overwhelming, even be] where there is con- be!” flicting evidence as to whether the defend- might say, softly, Then he “remember the ant was the killer.” 762 F.2d at 1454. This prosecutor man quotes when vote premise, which forecloses the more jury in the perhaps, room —and in our next straightforward holding that the evidence election.” was not “overwhelming” as to the malice not, system however, The adversarial did murder charge, was first by introduced nip prejudicial work to argument this in the majority in Davis v. 752 F.2d 1515 has, oddly, bud. It remained for a federal (11th Cir.1985) (en banc). I rejected this McCay’s opinion court to silence Justice in approach when it presented Davis, in Georgia’s courtrooms.4 here, and I well, find provides it unsuitable basis on KRAVITCH, Judge, concurring: which to Circuit build the ma- jority opinion. majority I in Part One concur consti- holding the instruction opinion The Davis majority stated not violation and was tuted a Sandstrom in terms of “[although opinions some talk harmless error. overwhelming guilt of ... the cru- evidence inquiry relates to whether or not there cial Two, only Part in the result of I concur overwhelming evidence of intent.” 752 argument prosecutor’s holding that consequence of F.2d 1521 n. 10. The this the trial sentencing phase of rendered the understanding was that the Court was able harmless fundamentally unfair and was not inquiry of whether the to limit itself to the California, 386 Chapman under error the victim evidence that “whoever killed (1967). 824, 17 L.Ed.2d 705 U.S. overwhelming, 752 intent” was did so with however, use of agree, with the I do not considering weight F.2d without Washington test in this the Strickland that Davis was the killer. the evidence of context. consequence is elevated to the status This JOHNSON, Judge, specially con- Circuit in this majority opinion of a rule curring: “overwhelming” can find evi- case: a court reached Although I concur in the result there is no intent even where dence of empha- separately to “overwhelming” I write the defend- this evidence reached my that it can be committed the size belief the individual who ant was by the route than that selected new rule is the same more direct The flaw in this act. necessary majority finds that it is Davis: majority. while as that scrutiny be harmless be- to evidence Sandstrom error cannot limit the court’s intent, general jury’s verdict determination returned because cause could affected three theories of one that be a defendant indicted on intent is the instruction, also nec- it is murder, those theories— the erroneous and as to one of scrutiny to evi- limit the court’s abetting essary evidence of intent aiding and —the the intent be- complicat- “overwhelming.” This dence of defendant the crime it is his connection liability multiple theories of cause inquiry into ed If a court tested at trial.1 is to be premise necessary because of becomes Tapping Re- the Historical the Courts: suggested defense counsel’s view I have 4. Judiciary fairness, Federal 1789- the Southern McCay. it be ob- sources should Justice distinguished able and Present 185 served that he was an jurist as one who strove who can well be seen Francis v. Although through perils mightily of a lead his state - -, Franklin, S.Ct. U.S. infor- trying in further Those interested time. (1985) was evi- concluded that it L.Ed.2d complex man are referred to mation about guilt than evidence rather dence of intent Alexander Law- article the late an excellent "overwhelming," Court nei- which must Judge the U.S. of the Savannah Bar rence further conclu- affirmed the nor ther considered District of Geor- for the Southern District Court may be overwhelm- Jurist, intent evidence of sion that Geor- gia, Henry McCay Forgotten Kent — was the defendant (1946-47) where evidence reprinted in Cleo gia Bar Journal (1979) 61 L.Ed.2d 39 and that error Sandstrom was not harmless. the evidence of the killer’s intent evaluates simultaneously evaluating without evidence majori- also concur section two of the killer, may the defendant is the ty opinion which holds that Drake is enti- by evaluating wholly inap- finish evidence sentencing tled to a hearing new because plicable suspect on trial. Efforts to prosecutorial closing argu- misconduct in applicable render such evidence retroac- penalty phase Henry ment at tively, ground jury on the ultimate- Drake’s trial.1 I separately only write ly found that defendant committed the point out what I believe have been the act, A inappropriate. are also court re- most egregious fundamental and error viewing for violations Sandstrom must by prosecution committed at Drake’s strength present- know the of the evidence trial; theory utilization of a of the trial, ed at so it can assess the effect of an totally Eberhart murder which was incon- instruction delivered at the trial’s conclu- sistent with the state’s view of the crime presented sion. If the evidence at trial is presented at the trial of Campbell. William reinterpreted light of conclusions Despite the other errors which mandate verdict, jury reached in its the effect retried, that Drake be impor- believe it is jury’s erroneous instruction on the tant prosecu- to address this claim. The accurately deliberations cannot gauged. totally tor’s inconsistent theories of the Moreover, a inculpato- rule which made all same crime at Campbell’s William and Hen- ry retroactively evidence applicable to the ry respective transgressed trials jury defendant whenever the reached a requirement Fourteenth guilty Amendment’s verdict would render the evidence “overwhelming” in that a every fundamentally case in criminal trial be fair. such a verdict had been reached. Davis v. I. FACTS Kemp, supra, (John- 752 F.2d at n. 1. son, J., dissenting). legal put Henry Drake’s In order to neces- proper perspective, it is claims into that,

I would hold because evidence of not what we know and do sary Drake’s intent to to examine commit the murder was surrounding not overwhelming, the Sandstrom error of the circumstances know was not beyond Eberhart, harmless a reasonable trials of Mr. the state death of doubt when measured the rule Chap- Henry Drake and Campbell and William California, man v. 386 U.S. 87 S.Ct. light. since come to events that have 17 L.Ed.2d 705 5, 1975, evening On the of December CLARK, Judge, Circuit specially concur- Defendant, Drake, Henry girlfriend, ring: Carruth, Mary Campbell, and William friend who living with Drake and Car- I concur in section one majority (TT 157-159),2 ruth at the time opinion drove from which holds that the instruction on Madison, Georgia, intent at Drake’s trial where the three were improperly shifted proof living, Colbert, the burden of in violation into Henry where Sand- Montana, strom v. 442 U.S. 99 S.Ct. family Drake’s mother and other members applied by killer is not. In fact one standard the evidence would be construed to meet analysis (requir- the Court in its harmless error overwhelming- elevated standard where it failed dispositive ly "evidence so identity of intent that a to establish the of the killer. reviewing say beyond court can a reasonable However, doubt that the would have found it unnec- specially as I concurred in Brooks v. essary rely presumption” (citing Cir.1985), on the Con- 762 F.2d 1383 I cannot Johnson, necticut v. totally majority’s reasoning. 460 U.S. at 97 n. concur in the - (Powell, J., dissenting)), at 973 n. 5 U.S. -, 1977, provides sup- 105 S.Ct. at additional transcript Henry 2. TT refers the trial from port proposition for the that none but the most Campbell Drake’s state murder trial. Drake and comprehensive compelling evidence in- had met while both were inmates at the state tent penitentiary Campbell would be sufficient to render a Sandstrom in Reidsville. came to question error harmless. While the remains to live with Drake and Carruth after he was re- Court, unlikely prison. be addressed it seems leased from go to trial year until one after Camp- bell had been tried and convicted and sen- 407). girl- (TT The defendant and his lived tenced to death for the murder and armed dropped Campbell off across friend robbery of Mr. Eberhart. barbershop in so from the Colbert street (TT 161-162, get a haircut that he could 360, 409) then continued on to A. William Trial (TT 410- the defendant’s mother house of At his Campbell own trial claimed that he 411). getting a haircut from Mr. Eberhart p.m. 5:00 was ob- At about began when Drake came in and beating the leaning on a car outside barber- served over barber the head with a hammer. (TT 283-284). p.m. shop At 6:00 he was no Campbell testified that stop he tried to longer lights but the the barber- outside but that Drake also struck him with the (TT 284). shop on (CTT 317).3 hammer when he did so Eberhart, p.m. evening C.E. At 9:00 jury obviously Camp disbelieved 74, age critically wounded on was found of the events as it convicted (TT bell’s version 290). barbershop He the floor of his robbery armed him of both the murder and blows to the head from a had received (TT Eberhart, and a wound 149- Mr. and recommended the clawhammer stab 150). penalty Camp The floors and walls barber- the murder. death See though as shop were smeared with blood bell v. 240 Ga. S.E.2d 828 (TT struggle place an extended had taken (1978) denied, 439 U.S. cert. 307). hospitalized Mr. Eberhart was (1978).4 58 L.Ed.2d remained in a coma until his death but argument prosecu- In his (TT 152-155). later several months tor stated: days after the attack on Mr. Several you I think this evidence reflects and can Eberhart law enforcement officers went pretty so find that Drake was well Drake, of Defendant where home Campbell known around Colbert and was staying, to search for Campbell had been joint. to case the I have be the man (TT Campbell possible and evidence my probably mind that he no doubt 309, 358, 360). Henry Drake At that time helped sweep Mr. the floor and Eberhart suspect in the was not considered a serious around and probably he left and waited Campbell gone incident. was Eberhart close, back, probably came real where he belonging Mr. later identified as a watch around there and then came back waited Campbell’s room in Eberhart was found fixing Mr. was to close and and Eberhart along Campbell’s clothes a dresser with up opened that door back Mr. Eberhart (TT 129, 133, 322). Campbell papers and right letting and them in. think by Georgia after arrested authorities Only probably when he stuck that Virginia. he located one week there strug- he had after the attack on Mr. Eberhart knife in him that is when the and by Virginia police for Yes, big been arrested shoot- gle began. he is not as a man (TT 195, robbery during a a woman why they had Mr. and that is Eberhart 197). being Subsequently and after struggle. drink- hellacious He was one Campbell, Henry Drake implicated by Mr. glands were work- ing, and his adrenalin was also arrested. smaller, and that is ing, he was because it in him why knife and stuck he took the originally along indicted Drake was they man and it weakened the old and challenge to the Campbell, but due to a it, Now, Campbell, fought____ who did at- grand jury appointed made Drake’s Drake, sayI on this you know what and his case did torneys he was reindicted sentence, transcript proportionality review of his In its trial of William 3. CTT refers to the evidence shows that Campbell’s court stated: "The trial. state elderly mercilessly bludgeoned an appellant eventually a claw ham- his death with man apparently be- 4. at mer.’’ 240 S.E.2d Campbell well. was the murderer as lieved that honor, please, person Your there is one capital punishment, who believes in one, evidence, really matter which does is the murderer. He believes in two, together. they were in it or or the capital punishment. He believes in it on this evidence my thoughts It is Judge Jury public without a or a hear- Campbell Mr. slayer, actual this is the ing where the friends and relatives of the Eberhart, you see that is, because Mr. public victim and the can attend. This was, except one knew who no similarly Defendant believes in it for he very Deputy Sheriffs some of victim, Virgin- killed his and then went to Campbell told the people. You see few attempted thing. ia and do the same “Yeah, I threw the hammer.” agent, GBI this, Now, he why would he tell because (CTT 385). handled that hammer that he had knew Henry B. Drake’s Trial might that there be a he felt like way it, that was the fingerprint Despite jury’s rejection that, tracks, say covering crime, his year he was account of the one later the Yes, The Barber I handled the hammer. key called him as its State witness Tools, also stated that he handled trial of Drake and had reiterate this also, covering he was those (TT 167-70, 188). story same at those again. Would look tracks argued the state “[he] old barber tools. Who poor little actually must have been the one who beat kill for a few little old would a man earth Campbell’s poor the victim” due to health. they at that. Here tools. Look barber Drake v. Ga. 247 S.E.2d 57 are, anything, didn’t work for didn’t have (1978) denied, cert. 440 U.S. anything. guy He that would do is 59 L.Ed.2d 485 this, pick up tools and thing like those only witness Campbell was William him, this carry them out of there with implicated trial who Drake’s Henry in a case of this garbage and submit Mr. robbery of and murder Drake is, garbage, that is all that nature that strikingly Eberhart; testimony was his and carry any man that would those that by the given account from the different Anyone clippers out of there. that little trial. at other witnesses gone kill through all of this and had all, somebody up wash and and had to Mary tes- Henry Drake and Carruth both getting money would take who after dropping Campbell off for tified that after stop little old the time to to steal a few haircut, they drove to Drake’s mother’s tools, like except someone William barber supper and they house where had visited seen, (Bill) Campbell you that have ever (TT 381-82, 410). hours for about two nobody. nobody, You know the first mother, brother and brother-in-law thing we have to we have to do that Henry Mary at and all confirmed get present put and a mo- defendant (TT evening Drake’s mother’s put him run- in there and then we tive 432, 434). Mary fur- Drake and Carruth ning. Campbell the entire case admits they picked Campbell up ther testified it, except that he didn’t do against him barbershop on the street from the across Drake did it. I don’t believe that that he told way of town and their out going to gentlemen ladies and are fight in a them that he had been that, story say buy that kind 352, 422). (TT barber right”, set him “You are free. say he on Drake’s trial? ... What would a.m. that that about 3:00 Drake testified part crime of They are both a of this him and Campbell woke wanted night robbery there is no mis- and murder and him back to Colbert because Drake to drive it, the evidence. take about under clippers knife and some barber he left his Mr. Eberhart there. 343-44) added). he took from (CTT [Barber At the (emphasis barbershop found outside prose- tools were phase Campbell’s trial the penalty (TT to take him (TT 366).] Drake refused cutor continued: the barber chair and hit Eberhart (TT 168). the hammer head with 413). went back day, Drake The next in order to bor- in Colbert mother’s to his trial, Campbell At Drake’s said he he found out the It was then a radio. row watched Drake come in and walk around got injuries. When he of Eberhart’s extent However, Eberhart. as Drake’s trial coun- Madison, Campbell how he told back recross, brought sel out on at his own trial Campbell then was hurt. badly Eberhart Campbell he not testified that did know 414). (TT to Atlanta to drive him told Drake Drake was there until he heard Eberhart testimony, covers over Campbell’s groan twice and turned around to see significantly transcript, varied pages of (TT 246). hitting Drake’s coun- Henry Mary from that of Carruth brought Camp- sel also out on recross that testimony was thrust of his Drake. The any wig bell did not mention at his own alone, Henry robbed Henry, (TT 243). trial Mr. murdered Eberhart bystander merely an innocent first wig, Campbell himself was testified As to the the victim. How- help tried to happened who fact to it what that he did not know ever, story diffi- Later, was 170). (TT he testi- beating after the itself, it was also to believe in and of cult struggle Eberhart during the fied that and inconsisten- contradictions filled with 208, 249). (TT wig off Drake pulled throughout. cies wig back Drake wore the later he said Still 213). (TT to the car with, Campbell stated that after begin To hung he around the Drake let him out direct, Campbell On said that when Hen- (TT fifteen minutes laundromat for ten or ry shop came into the he told Eberhart that 205). to the barber- He then walked over going him and to “rob take his cleaning up but shop. Mr. Eberhart (TT 169),” examination, money but on cross Campbell’s hair after he he would cut said say anything he said Drake did not when sweeping up, Campbell held the finished so (TT 207). in he came (TT 205). him dustpan for Campbell stop tried to claimed that he Campbell stated that he and At first hitting Henry from the old man at which hair did not converse while his Eberhart Henry [Campbell] in time hit him the head (TT 212); however, re- being cut on was (TT 169, 208). In with the hammer elabo- that he asked Eberhart cross he admitted rating being hit Drake on cross ex- (TT cutting hair joba while he was his amination, Campbell, already aware of the 245) he [Campbell testified earlier that had going physical evidence the State was Colbert, in no looking job for a but been trial, related that present from his own was also give him one. There one would he was hit he fell out of the barber when testimony Campbell had been barber stating chair over near the door (TT 366-67).] at one time stains, they got my off “that’s where blood questioning Camp- began When State (TT 208).5 story Campbell’s But the door” involvement as to the defendant’s bell falling by the was inconsistent with door crime, Campbell first stated that he did trial that testimony gave he at his own barbershop but saw not see Drake him the picked up him and set barbershop before only in front of the (TT 211). testimony from the This door (TT [Campbell] got his hair cut and after he inconsistent with previous trial was also 164-65). prodding After considerable Henry Campbell’s on cross statement Campbell changed Attorney, the District hitting him with the not touch him after did was that while he story and claimed his (TT 209). hammer cut, with a Drake came in having his hair particularly in- Campbell’s testimony was [Campbell said he didn’t rec- wig on black itself. as to the hammer behind consistent ognize first], him at walked around A, were did, fact, and Drake testimony typed while Eberhart present of a The State scrapings Type typed A blood as O. forensic scientist that frame; Campbell was from the door were taken direct, Campbell Mary

On testified barbershop Carruth was behind some- pickup found in the back of a was hammer during these events but that he did where barbershop and behind the truck located 176). (TT exactly know where On there that he threw it Campbell admitted cross, he testified that she was “at the (TT 175), versions as to he had several door, the door ... around to the beside threw it from. First he stated where he door,” corner and that she “come to up picked the hammer at the that he (TT 219).” door barbershop it toward the truck and threw examination, (TT 175). speci- he On cross he, Mary Carruth Campbell testified picked up the hammer off the fied that he (TT 177)which Drake walked to the car going he out the barbershop floor as was at the store parked up the street (TT 215), not know and that he did door cemetery drank a then drove 215). (TT gotten it Drake had from where (TT 177, 220).7 He next testified beer However, ever being after asked if he had sleep in the back seat and when he went to hammer in that he had found the said (TT they in Madison up woke were back he car, changed story and re- he his 178). asked, the next “Do recall When right. matter of sponded, “That’s As a “No, sir, Hen- responded, day?”, Campbell fact, time. He kept he it in there all the next told me about ... ry [it] [Drake] (TT 214).” it on that old car with worked day.” Defense counsel then read testi- mony trial in which he from own Campbell testify went on to that the next that he found the hammer claimed day [Saturday] Drake told him that he it of the ear Drake’s car and threw “out [Campbell] would have leave because the (TT 216).”6 clarify When asked to (TT 179-86, expected barber was to die done, barbershop it from the he had thrown 225). being While examined on direct as to car, Campbell it from the thrown events, particular portion story He changed his for the third time. respond- asked Drake said. He what claimed that Drake carried the hammer out ed, they looking “He said for that down, barbershop, laid it then night. barber to die ... was robbed that it it stepped on so that bounced back know about it. He told me about it didn’t Campbell picked up near the door where (TT 184).” questioned further about When (TT 216). [Campbell] that he hid He stated said, he testified that “he what was inside the car until could hammer ‘Bill, me, you’ve got leave. told [Drake] get point to the door. At this defense back this, say you got I I hate to but to leave.’ gave up hope getting straight a counsel said, ‘Well, why, him he what asked and Campbell story the hammer from about happened night they last look for that old something and went on to else. But fur- — pretty drinking man to die—.’ I was well testimony Campbell’s ther flaws in contin- and I think the old man was hurt didn’t develop. to ued (TT 185).” added, (Emphasis un- that bad direct, that after Campbell testified On Campbell’s to portion derlined statement barbershop the incident in the he did not court.) not any blood on his clothes and did have Henry Campbell then testified that Drake drove pay any attention to whether had caught a (TT 172). [Campbell] and he any But on cross him to Atlanta blood on (TT 179-86, 226) Norton, recross, Virginia he there was bus to claimed only (TT 218, 248), hip in the a saying where he shot a woman blood on his own shirt robbing salvage compa- away, week later while a bloody that he threw the clothes (TT 197). Campbell pled guilty to Henry ny changing story say his to then 186). 248-49). (TT (TT robbery away Mary threw them Bottles, Campbell Campbell's the kind Two Miller Beer was inconsistent with 6. This version drank, up cemetery. parked they that the car was were found at the earlier statement said (TT 126). at the store street he lost his false teeth and I think that probably helped would have some. The picked Georgia law enforcement officers emphysema other is his extreme that he Campbell up Virginia in and returned him officers, According has. to that he can’t Georgia to face the murder to Eberhart walk even a distance that he doesn’t tire robbery charges. Campbell En route and have to sit down and bend over and following regarding made the statement heave, when he exerts himself to because killing; the Eberhart know when a “[You] amount, the least he is exhausted. And gets drinking to ... I didn’t mean fellow course, the other reason that he is so Campbell supra, to do it.’’ See low, true, talking used to it’s he has 352, 353, (1977) 240 Ga. S.E.2d 828 spent many years prison in so and that’s added). (emphasis way they They talk. don’t talk out Campbell’s criminal record at the time of prison system. They whisper. loud pleas guilty Drake’s trial included to two loud, hardly know to talk He doesn’t how (TT 197), sodomy plea in counts of a whisper. you in a And I to submit (TT 198), guilty burglary in 1967 a Eberhart, though that Mr. even he was robbery conviction for in 1969 which result- old, something years seventy that he was subsequently in a life sentence reduced ed man, big good pounds, close to 200 (TT 198), years plea guilty to twelve health, vigorous, testimony and the Norton, Virginia robbery convic- very that he led a active life. And robbery Mr. tions for the and murder of pictures„and you at those look what look in 1976 for which he received a Eberhart place, say a terrific scuffle took (TT 187, penalty life death sentence evidence, Bill you that under this William 199). had Campbell testified that all he Campbell all that could have done (TT 194). twenty jail spent years around night. high. was done that Just sum, testimony offered suggest you, high. And I Just fol- evidence, state at Drake’s trial consisted of the that it physical under all that lowing; eye seeing witness testified to Campbell to have took more than little Campbell in; the street from the across bar- we done old Mr. Eberhart because bershop p.m. day fought, at about 5:00 on the man and he can tell that the old scrapings fought, fought the crime. Blood taken from the and he for his life. And weapon fallen out from Campbell handle of the murder were found would have A, long type Campbell’s type. emphysema to be blood On sheer exhaustion hand, blows would have only physical those mortal the other evidence before associating been done. Drake with the crime was alleg-

knife found at the scene of the crime edly belonging finger prints him. No C. The Recantation taken at the scene were matched to Drake. years Several after Drake was convicted only testimony place Drake at the death, and sentenced to William barbershop implicate him in the mur- or to 24, 1981, changed story. April On testimony, robbery der or gave following affidavit: wholly contradictory inconsistent and testi- alleged mony accomplice of an who had a My Campbell and I name is William history of violent crime. Ar- Henry a witness in the trial of was closing argument in Drake’s case the robbery mur- thur Drake for armed Huff, prosecutor, Mr. the same at- Henry district I der. I lied at this trial. said barber, torney prosecuted who Mr. was the one who killed the Eberhart, stop Henry stated: and that I tried to killing him. But I said were from what gentlemen, Now ladies and I want to I who killed Mr. Eber- lies. was one talk to one factor. We about other Henry even there. He hart. wasn’t Campbell; you testify, him saw saw anything do with it. didn’t have to (Mr. whisper- he talks like this Huff Henry going were to Colbert. ing); and the reason he talks like this is a Me and going see his mamma and Henry was to combination of three factors. It’s true thought Henry dirty. had done me I thought Henry had me turned in and the shop and dropped me off at the barber he way Henry treated me Iwhen came back way me on going pick up his back was to Georgia to made keep me lying. on Hen- shop I to the barber to Madison. went ry ugly was to jail me at the and after hair, my but Mr. Eberhart cut trial, my Henry said he and his whole to up. get tried him my hair I to messed family glad got I the chair. got He mad and it but he wouldn’t. fix pulled my knife I hit me with a hammer. But being since here at Jackson I’ve I him. try get hammer from to to thought it wrong over and I know was I broke off. him but blade stabbed to go living lie and I on can’t like this. up. got away and him the hammer beat changed my living way I’ve now. I’m I took it and took saw his watch and living right doing better and now. I pocket, out of his too. $400.00 about saying might I’m my know what hurt shop I left the barber and waited be- appeals own going worry I’m not to Henry I saw hind a laundromat until go about it. I don’t lying. want to I (I no- got I in the truck. come back. get want to my off conscience and Henry’s girl ticed friend had a bowl try forgiven by Henry to be and God I Henry’s soup lap.) mamma’s on her Almighty. I Henry fight .about the and told told say I to to court willing go I’m thought I might I have killed the barber. this affidavit Also Henry’s trial. lied Henry mamma’s go had back his help will way that any used may be a minutes. He came back out for few done. that I’ve wrong change the something. Then we went with coat back Madison. Subsequent Legal Proceedings D. night Henry During the went back affidavit, On the Basis of this Drake filed doing. to see how the man was Colbert extraordinary a new an motion for trial morning In the he told me Mr. Eberhart was trial denied state court doing real and I’d leave. was bad better Georgia evidentiary hearing. after an I Henry I me Atlanta. asked to take Supreme ruling Court affirmed this gave Hen- Henry Mr. Eberhart’s watch. (1981) 891, 287 248 Ga. S.E.2d stayed me to Atlanta I there ry took that, reasoning settled that a law is “[t]he my days a few and then took the bus to witness post-trial declaration a State’s hometown, Norton, Virginia. While I testimony is not a that his former was false pawn shop there I robbed a and was was ground at 182. for a new trial.” 287 S.E.2d got twenty years for armed arrested and Supreme Court also said that State robbery. Campbell’s recantation not believable jail Virginia I was in offi- While testimony poor trial as to his because me question from came to cer (that physically incapable of health he was figured I the barber's murder. about being the fact perpetrator) the sole Henry me in—told must have turned there was that his recantation8 indicated everything and where I was because barbershop when he not much blood given Hen- officer had the watch that I’d left, physical was inconsistent with the evi- Mr. ry. I officer I didn’t kill told the introduced at trial. Id. dence Henry I did it and I said said Eberhart. do denied the United stop Henry. I I didn’t noth- After certiorari was tried to Court, peti- Drake filed Henry I lied about because States but lie. Beal, time, affidavit, record Campbell stated on the at that Robert William In addition testifying against his advice evidentiary hearing in the state at an testified possible adverse conse- regarding and was aware of the motion. His trial court new trial i.e., legal prejudice pending quences, to his mat- testimony It his recantation. there reaffirmed perjury. prosecution possible hearing gave ters and the statement was at that that he 6-7, (State Transcript pp. before Honor- Habeas regarding It also must be the lack of blood. Grant, Superior of Butts Campbell F. appeals pending able William had when noted that 7, 1981). attorney County, July gave and testified. His the affidavit prosecutions The is that the fact inconsistent. The issue is whether the corpus in for a writ of habeas tion requires constitution that the State em- Court. States District The district United honesty in ploy prosecuting basic those petition hearing. without a court denied join of crime accused or whether can this affirmed panel A of court that deci- game seeking of a result without Francis, sion, v. 727 F.2d Drake regard for much the tactics. The Court Cir.1984), rehearing vacated and en banc lightly not make this does observation Garrett, v. 727 F.2d granted, U.S. recognizes that the horrible murder (11th Cir.1984). likely the victim these cases would IN II. THE LEGAL ISSUE CONTEXT any community any have moved Reviewing Interpretation A. The Courts prosecutor to necessary do whatever was the Two Trials. bring responsible parties jus- to reviewing petition- All of the courts doubts, seriously tice. The Court how- prose- er’s claim of inconsistent theories of ever, Constitution can stand expressed, have denied relief but cution in many expedient where the ex- cases prose- varying degrees, concern about the acting overpowers justice completely very cutor’s actions least have fairplay. sense all inconsistency noted the factual in the theo- Francis, v. Civ.Act. No. slip presented ries of the case at the two trials. op. (Superior at 10-11 Court Butts County, Georgia Supreme ap- The Court on direct (State 1981) opinion) habeas (emphasis add- noted, peal Campbell’s case “the evi- ed).9 appellant mercilessly dence shows that the elderly man, bludgeoned eventually exhausting remedies, After his state death____” Campbell State, supra, Drake renewed this claim in his federal However, 240 S.E.2d at 832. on direct petition. habeas The district court found appeal in Drake’s case the State no constitutional error in this claim al- Court noted: the state “[In though recognize the court did the incon- argued that Drake must have been the he] sistency of the theories: actually one who beat the victim [due Campbell’s trial the theory state’s [I]n Campbell’s poor State, Drake v. health].” probably just Drake was supra, 247 at 59. The state S.E.2d habeas trial, “pick up man.” In Drake’s evi- judge reacted as follows: Campbell dence was revealed that exactly The State did what Petitioner physically participate able to in a says. only pur- issue whether the struggle such as the evidence indicated suance ap- State inconsistent had occurred. The State in Drake’s trial proaches in cases of this kind violates the argued that Drake had to have conducted rights constitutional of either or both of beating. the brutal support argu- the defendants. Francis, Drake v. No. Civ.Act. 82-99- ment, holding Petitioner cites cases ATH, (M.D.Ga. slip op. at 8 4n. Dec. prosecutorial obligation there to act 1982). good prosecutorial faith and that mis- panel conduct can amount a constitutional originally of this circuit that response, deprivation. Respon- In' appeal heard the from district court’s prosecution dent asserts that denial of corpus federal habeas relief be- fairly two cases was not inconsistent but conve- lieved theories were consistent niently quickly moves on to another sub- noted: “Hence the inconsistent ject saying why. without theory proposed in the two trials was However, express he went on to his belief that about the tactics of the State because Mr. Campbell's process rights and not Drake’s due Campbell was convicted and sentenced to were violated. prosecution death that contended situation, actually In this it is day Mr. another that he was too old and sick and (see Campbell supra) and not Peti- crime. weak commit the superior right complain tioner has the who

1478

precisely defined. Department Lassiter v. Services, 18, 25, Social 452 U.S. 101 Campbell of prosecutor believed Campbell’s 2153, (1981). 68 S.Ct. L.Ed.2d 640 “Funda in while Drake’s sole murderer was the fairness,” mental by product as a of due that, attorney urged due the district process, “a term meaning is whose can be necessity, Drake must physical to sheer opaque as as its importance lofty.” Id. well.” attack as participated in the have particular Whether not a or action or series Francis, 727 F.2d 994.10 supra, v. Drake prosecutor of actions in a criminal Drake’s and of the record of A review trial renders that proceeding fundamental trials, by the same Campbell’s conducted ly unfair is frequently judgment agree leads theo- prosecutor, me to must be made the federal habeas court developed by the state at the case ries of reviewing after the challenged in actions but to dis- two trials were inconsistent light of the entire record as well as assess drawn from legal conclusion agree with precedents the relevant and the other view, the state’s ac- my events. In those interests at Lassiter, stake. 452 U.S. at Henry trial violated the tion 25, 101 at S.Ct. requirement stem- fairness fundamental process ming from the due clause ease, actions prosecutor’s In this Fourteenth Amendment. Campbell told essen- tainted Drake’s trial. trials, story i.e. that tially the same in both B. Fundamental Fairness only murderer. Drake was the Drake only duty not prosecutor is the of a It trial, however, prosecu- justice. A.B.A. seek See convict story as unbelievable tor attacked Justice, 2d Ed. Standards Criminal merely the one who argued that § (1982) 3-l.l(b)(c); of Profes- A.B.A. Code destroyed barbershop. Having “cased” 7-3; Responsibility, E see also sional C and se- Campbell’s credibility in that trial 78, 88, States, U.S. 55 Berger v. United 295 called penalty, one death he then cured 629, 633, (1935). L.Ed. 1314 He S.Ct. 79 principal witness Campbell as state’s guard rights responsibility has a a second Drake’s trial order to obtain society the accused well as those one. § Standards, 3-5.8(c)(d). A.B.A. large. because, “[sjociety wins not This is so clearly, Initially it should noted that be guilty but when when the are convicted Campbell’s testimony, there would without fair; system jus- trials are our criminal sup- have evidence to been sufficient any when accused is treated tice suffers testimony port a conviction. Without 373 unfairly.” Maryland, v. U.S. Brady would no choice but this court have 83, 1194, (1963). 215 83 S.Ct. 10 L.Ed.2d pursu- grant the writ and order a new trial 307, v. 443 U.S. Virginia, ant to Jackson A fair trial fair tribunal is a basic 2781, (1979). 61 L.Ed.2d Other 99 S.Ct. 560 requirement process. Turner due virtually Campbell’s testimony, as ev- Louisiana, than 379 13 U.S. conceded, review has (1965). ery court to this case process 424 Due is not a L.Ed.2d context; linking Drake conception there is almost no evidence technical with a fixed perhaps never can to the crime.11 it has never been and be circumstantial, dence, believed, panel direct will suff- also as did the state habe- either 10. court, testimony. process accomplice’s to corroborate an there was a due ice as violation, even if State, rights Ga.App. 274 S.Ed.2d 685 Campbell's Cole v. it was not Drake's However, (1980). transgressed. where the corroboration that were testimony entirely alleged accomplice's with and is of itself as consistent circumstantial Georgia a 11. In defendant cannot convicted guilt, evidence is insuffi- innocence as such testimony on the basis the uncorroborated State, 127 to sustain a verdict. Reed v. cient Ga.App. pur- accomplice. 24-4-8. The § O.C.G.A. (1972). 194 S.E.2d 121 pose principle is to of the corroboration safe- guard against falsely maintaining this issue ad- person courts have resolved one petitioner. accomplices versely court, habeas A federal that he and defendant were therefore, the merits of cannot review commit the crime. Coleman v. 769, Ga. Llewellyn Stynchcombe, F.2d Slight this claim. 183 S.E.2d evi- any took action that indicated he believed Campbell’s story. Second, prosecutor if did the not believe testimony any- but called him Campbell’s Therefore, all we say can for certain is er- way, then that would be constitutional prosecutor attacked William Camp- Obviously prosecutor the either be- ror. testimony bell’s at his trial as unbelievable If Campbell. or did believe he lieved not argued must have been him, prosecutor then the did believe should the sole murderer. jury accepted The the or, prosecuted Campbell he not have once prosecutor’s version of the events as true Campbell’s story that he believed decided and rendered a verdict accordingly. One (if trial), Campbell’s this was after he later, year William Campbell was called as steps have er- should taken to correct the the principal witness in Henry Drake’s tri- Campbell, If he not then ror. did believe al. The conclusion seems inescapable that testimony prosecutor thought the used prosecutor Henry obtained Drake’s con- Drake, was false order convict a con- through viction of testimony use he did constitutionally he could not other- viction believe; not bringing this case under the wise secure. logical if not actual factual framework of Holohan, 103, Mooney In v. 294 U.S. Mooney Napue. 340, 112, 341, (1935) 55 S.Ct. 79 L.Ed. 791 Illinois, 264, 269, Napue 360 U.S. 79 As the judge recognized, state habeas 1173, 1177, (1959) S.Ct. L.Ed.2d prosecution’s theories of the same made clear a convic- crime in negate the two different trials one through prosecu- tion obtained the use the They another. are totally inconsistent. evidence, tion false known be such flip flopping This of theories of the offense state, renders the conviction under void inherently peculiar unfair. Under the the Fourteenth Amendment.12 prose- facts of this case prose- the actions duty only cutor has a not to refrain from cutor violate that fundamental fairness es- soliciting false evidence but also a constitu- very concept sential to the justice. Li- duty tional to correct false evidence that he 219, California, senba 314 U.S. S.Ct. intentionally not does elicit. Mary- Giles v. (1941). However, 86 L.Ed. 166 land, 386 U.S. 17 L.Ed.2d makes no to say only Campbell’s sense (1967). Furthermore, courts have not process rights due were violated adopted a conception technical of “false” inconsistent theories. Either both defend- testimony. evidence or Blankenship v. Es- prejudiced by ant’s were prosecutor’s telle, (5th Cir.1977) 545 F.2d 513-14 espe- actions neither’s were. This (testimony technically does not have to cially finger- true in this because case perjurious to fall within the ambit of know- tests, prints, blood and witness linked testimony). use false Campbell and not Drake to the crime. In this case it is not clear what highlighted That by Campbell’s evidence prosecutor actually know, believed. We do subsequent recantation. however, that vigor- at trial he conquer state cannot divide ously Campbell’s testimony attacked Such manner. actions reduce criminal argued unbelievable and the jury gamesmanship trials to mere rob them Campbell was the actual murderer. The supposed purpose of their of a search for jury necessarily thought Camp- likewise prosecuting Campbell truth. In and Drake bell’s version events was false or it Eberhart, prose- for the murder of Mr. not could have convicted of murder changed theory happened penalty. death cutor of what returned a Further- more, we suit the prosecutor know no to state. This distortion rendered time, trial, Henry fundamentally either before or after trial Drake’s unfair. (5th Cir.1980). my opinion, applies goes falsity how- 12. This rule even

ever, Campbell's credibility testimony suffi- did have the witness and the has grounds Napue, cient corroboration meet the test of reliabili- disbelieve the witness. other 269-70, ty. supra, 360 U.S. at 79 S.Ct. at 1177.

Case Details

Case Name: Henry Arthur Drake v. Ralph Kemp, Warden

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 31, 1985

Citation: 762 F.2d 1449

Docket Number: 83-8047

Court Abbreviation: 11th Cir.