*1 558 added.) Thus, inquiry probes our

sis into necessary filing. what acts are to constitute ALDERMAN, Jack E. Petitioner-Appellee, A filed it is- timely “suit is when placed in the hands the clerk of a court jurisdiction filing.” of competent Du AUSTIN, Warden, Georgia Sam State Co., Olympic bois v. Ins. 231 So.2d 715 Prison, Respondent-Appellant. Istre, (La.App.1970). Meyers v. See Mailing (La.App.1980). So.2d 1181 the com No. 80-7820. equate to the clerk does not plaint See, “filing.” Hayes g., e. v. Woodworth Appeals, Co., Trucking (La.App.1977). So.2d Fifth Circuit.* As appellate two intermediate courts in BUnit Louisiana have written: Dec. placing We think that the suit in the Rehearing March On filing hands Clerk must be presumptive

shown more than evi- plaintiff prove

dence. The must

preponderance of the If evidence. we otherwise, hold we should have to mailing

hold that of a suit to the interrupt

Clerk sufficient prescrip-

tion, and that is not the law of this state.

Hayes Co., Trucking Woodworth (emphasis added)

So.2d at 479-80 (quoting Co.,

Dubois v. Olympic Ins. 231 So.2d at

The fact complaint instant

was mailed to days prior the clerk several

the accrual of the statute of limitations

period does not inquiry. alter relevant question

The crucial plead whether the

ing put physical possession into the year clerk within one of Jones’ injury. case,

In this timely clerk did not receive complaint. operation

While the of Louisiana’s strict

“filing” requirement appears harsh, rule

given mailing complaint nearly a ran,

week before the period limitations we

must, instance, poli- follow state

cy as articulated courts. Cf. Walk- Corp.,

er v. Armco Steel (1980); Ragan Co.,

Merchants Transfer & Warehouse L.Ed. 1520

Accordingly, compelled we are to conclude filing

that the was unseasonable.

The decision of the district court is AF-

FIRMED.

* 9(1) Former Fifth Circuit Section of Public Law 96-452—October *2 Westmoreland,

Mary Beth Atty. Asst. Gen., Atlanta, Ga., respondent-appel- for lant. Morris, Atlanta, Ga.,

Bruce H. peti- for tioner-appellee. Berger, Legal

Joel NAACP Defense and Fund, Inc., City, Educ. New York for ami- cus curiae. MARKEY**, Judge,

Before Chief CLARK, HILL and THOMAS Circuit Judges. HILL, Judge:

JAMES C. Circuit indicted, tried, Jack E. Alderman was convicted, and sentenced to death elec- wife, trocution for the 1974 murder of his Following Barbara J. Alderman. unsuc- 1 upon cessful direct attacks his conviction sentence, petitioned through Alderman system state court for writ of habeas corpus. These collateral attacks too failed. upon petition Alderman’s But federal ** State, Judge 1. Alderman v. Honorable Howard T. Chief Ga. 246 S.E.2d Markey, the U.S. Court of Customs and Patent Appeals, Washington, sitting designation. D. C.,

relief, (1976), that evening, motorcycle the Unit- Later he drove see U.S.C. § Court, grandmother’s ed to her house in search of her. States District Southern District way, petitioner testified, passed theOn he Georgia, granted the writ. We affirm in Rinean, Georgia creek and observed the remand, part, part, reverse in family car in He it. went down to the F.Supp. 1134. creek, wife, saw his deceased cradled her *3 lap thereby staining clothing head in his I. his police, with the by blood later noticed Petitioner, September ap- on the fled scene in shock and fear. proached his John close friend A. Brown for murdering petitioner’s accompanied in assistance wife. determined by statutory aggravating two circumstanc- compensation: Petitioner offered Brown (1) 27-2534.1(b)(4), e., i. es: Ga.Code Ann. § the split proceeds two were to the of Mrs. purpose murder “committed . . . for the of policy. Alderman’s life insurance Several receiving thing money any or other of mon- days petitioner hence summoned Brown to value”; (2) etary 27- Ga.Code Ann. § the apartment, Aldermans’ handed him a 2534.1(b)(7), e., /. murder which was “outra- wrench, 12-inch crescent and instructed vile, geously wantonly or horrible or inhu- to Brown hit Mrs. Alderman. was Brown torture, in that depravity man it involved of but persuaded by point reluctant the of mind, or an aggravated battery the vic- petitioner’s gun. dining Brown entered the tim.” room where Mrs. Alderman stood and struck her head the with wrench. She corpus alleges Petitioner’s habeas action error, living only screamed and ran to by room constitutional committed court, First, confront her who brought grounds. husband her to two he asserts jury exposure the floor and single held her down. to a comment Petitioner by prosecution began made strangle Brown Aider- witness Mrs. man, teaching violated the stopping only passed after she out. Ohio, 426 U.S. S.Ct. Petitioner then filled a bathtub with water. (1976) Second, lineage. argues and its he Mrs. dragged Alderman was into the bath- his jury suffered from defects placed room and in the tub with her face type held process violative of due in Wither submerged. Illinois, spoon U.S. apartment The two men left the for sev- proceed 20 L.Ed.2d 776 We to ana they returned, eral they hours. When re- lyze the facts law involved tub, body moved Mrs. Alderman’s from the contentions. rolled in a quilt, placed it in it car; trunk of her car. Brown drove the II. petitioner motorcycle. on a followed petitioner’s trial, At state court Rinean, Alongside a Georgia, creek in prosecution Georgia called Bureau of Inves body taken placed from the trunk and tigation special agent H. H. to testi Keadle in the driver’s seat. The car brake fy concerning peti with Keadle’s interview allowing released car to roll into the shortly tioner held petitioner after had creek where it body and the were soon body Effingham identified his wife’s at the discovered. County, Georgia, Hospital. The relevant trial, petitioner At denied he killed his testimony3 single contained reference wife.2 His testimony quarreled was that he petitioner, Keadle the fact that at one with his wife on evening interview, death. point her expressed had Amplification may petitioner’s defense interview him at Sheriff Fulcher’s State, 498-99, found in Alderman office? Ga. at 246 S.E.2d at Yes, sir. custody Was Mr. Alderman in time, at Q. arrest, you simply or Now after under Mr. Alderman was from Q. taken office, discussing with him oc- hospital this unfortunate did Fulcher’s to Sheriff currence. court, attorney ployed by purportedly the district wish to exercise the but v. United incorrectly and to remain silent. Keadle’s reference drawn from States, prosecutor, was neither solicited ob- (5th Cir.), 547 F.2d 1240 jected petitioner’s attorney, nor again

mentioned in the course of trial. (1977), explains the court’s mistaken im pression that the error was not harmless. Petitioner first raised this issue on direct Chapman held that: appeal Supreme Georgia, to the directly When the does not unimpressed which was with on several here, tie the fact of defendant’s silence to his argues levels.4 Petitioner as he did e., court, prosecu- when the exculpatory story, that he /. success the district see Mi- interrogation,” elicits that fact on direct examination was under “custodial tor Arizona, 436, 444, randa v. commenting and refrains on it or 1602, 1612, (1966), adverting again, to it *4 Agent time of his with Keadle. interview never told that such silence can be used case, being guaran- the his exercise of impeachment purposes, Such reversible er- rights permitted teed constitutional was not exculpatory story results if ror the haunt him at trial. implausible guilt totally or the indicia of overwhelming. not

The district court the evidence studied (emphasis added). at 1249 alleged and found the constitutional error The disagree. language, harmful. We The standard em- district court relied on similar first, Supreme Georgia simply discussing 4. The At it and Court of dealt with this A. we were trying to little bit of back- issue in find out a a somewhat alternative fashion. The ground, Georgia’s “contemporaneous when he had last seen her and Court affirmed on thing rule, objection” permitted one and another like that when the which the conclusion began. “Appellant’s [petitioner’s] object interview that failure to Sir? complained Q. below to the admission of the began, try- regarding A. When the interview we were a waiver” constitute^] ing preliminary things, to run down petitioner complain appeal. some which not could her, know, you when he had last seen the Perhaps 241 Ga. at 246 S.E.2d at 648. you things routine that would on an in- allowing uncomfortable with a “constructive” vestigation; that was when the interview right petitioner’s waiver of a to result death began. course, Of it wasn’t until the electrocution, Supreme Georgia the termination of the interview that the (1) petition merits of went on to consider the stains that 1 mentioned earlier were no- claim, Ohio, Doyle adjudging it er’s nonmeri ticed. torious; (2) if determine that even Keadle, you Mr. when observed these Q. error, did amount to constitutional that claim to, you stains that have referred error was “harmless a reasonable reddish-brown stains on Mr. Alderman’s doubt,” Georgia Id. at 246 S.E.2d at 649. you trousers and I believe said some- Hill, Supreme Harold N. Jr. Court Justice ob belt, thing appearance similar in on his “majority Georgia Su served [of you did call these to his attention or preme is unsure of its basis for affirm Court] discuss it with him him or ask what ing penalty.” this death Id. at 246 S.E.2d anything? was or J., (Hill, dissenting). Wainwright at 653 that, Shortly we, before I course as Sykes, 433 U.S. began preliminary just said we with the (1977), directly which flowed from the no trying get background for the in- “adequate ground,” of an would of tion started, vestigation long it how had been operate preclude ten federal consideration thing since he had seen her and one petition on habeas of issues deemed waived that, another like then toward the contemporaneous objection virtue of a state’s interview, end of the he became sort of Sup appeal, Georgia rule. But on direct ques- frustrated with the nature of the majority opinion, Court’s “ambivalent” reme him, being tions asked and he decided at grounds, brimming with alternative decisional time he would exercise his that court was not leads us to conclude that attorney, and so at that time the inter- adequacy convinced of the of the nonfederal just view was terminated when he stated We, then, ground on the issue. likewise that he wished to remain silent. He was ground. not constrained to defer to that are stains, questions regarding asked no merely he was informed me that seizing clothing was as evidence. Q. ago you . appearing elsewhere in and de little while . . stated [A] case, scribing yet you conscientiously op- were not another 1976), Impson, Now, posed capital punishment. un- denied, 434 U.S. law, Georgia you der if believe from (1978), proposition Charge and the evidence petitioner’s theory exculpatory must be penalty the death Court that called implausible totally and the indicia of his case, for under facts of this could overwhelming. Applying the test you yes penal- vote to inflict the death conjunctively rather disjunctively, than ty? case, erred. in this district court For A. Yes. guilt clearly indicia of overwhelming, Q. you You feel that could? here, in Chapman, as the harmless error A. Yes. presented single, itself in a isolated re Q. now, right, step All going a further sponse aby testimony. witness ., . . if were selected to serve as foreman on this . . . any prose- Neither the nor jurors other eleven believed that together cution witness tied the fact of required and the law evidence [petitioner’s] improbable silence with his penalty proper death and should be story. was never told that si- you, in this voted for could impeachment lence pur- could used for following jury, foreman of the instruc- poses. Neither in cross-examination nor *5 Cheatham, given you by Judge tions argument did prosecutor suggest write out the verdict on the indictment impeached that silence [petitioner’s] trial sign your name to it as foreman? testimony. A. I know. think I don’t I don’t could Shavers, Id. See also United do that. 266, F.2d The error Q. beg your pardon? I here involved is harmless a reasona- No, A. I believe I do don’t could that. Chapman California, ble doubt. 386 U.S. Q. you You don’t believe could do that? (1967). S.Ct. 17 L.Ed.2d 705 A. No. III. Q. though Even judge instructed persuaded Petitioner the federal dis you that if believed from evidence that trict court he had been convicted that death penalty was warranted jury composition court whose was un you jury, were the of the foreman Witherspoon Illinois, constitutional under you could not write it out? 391 U.S. A. No. (1968). Knowing that he intended to ask your please— MR. If DREW: Honor executed, petitioner that prosecutor Why THE not? COURT: Georgia probed State on voir dire just A. I don’t know. I wouldn’t want each capital venireman as to his views on anybody. feel guilty. convict I’d punishment. In order to exclude from the Well, you THE have COURT: would al- jury those veniremen who would not vote to foreman, ready convicted him death, prosecutor propounded inflict your it’s us responsibility assume —let series of penetrating questions to each. had convicted him —as fore- Specifically, the inquiry was whether a ve man, your responsibility it would be regardless nireman feelings of his overall out; you say you write that couldn’t do could, about the death penalty if called that? upon foreman, jury to act as actually sign A. No. his prospective name to the verdict. Three jurors point. were reticent on this

colloquy involving already one them is demon has said that THE COURT: She strative: vote to .... she could convict him Texas, penal- the death give him could vote What’s L.Ed.2d not write it out.

ty, but could mind? .... your the difference here. however is not the case Such my be on This would I know. don’t no “un at issue evidenced The veniremen it out. just write couldn’t conscience. capital punish oppose intent to ambiguous” Ill, Two other Record, at 936-38. Vol. in the trial of principle either in or ment fashion. responded in similar veniremen expressed petition. They particular expression of venireman’s Following each fact, point inas contrary, quite the sign a verdict foreman —to inability- —as an affirmative as each articulated much of a capital punishment effect that would into inquiry response to the State’s direct defendant, moved successful- The state vote for execution. ability his ly to strike that venireman however, veniremen suggests, objected to each of Petitioner for cause. duties discharging their incapable on Wither- exclusions for cause the three potentially any member of a venire since spoon grounds. foreman and upon called to act as can be three accomplish very act these thus IV. conscientiously jurors could not prospective amendment, applicable The sixth do, viz., jury verdict that would sign the fourteenth, see through the to the states While the Su electrocution. effectuate Louisiana, Duncan v. juror explicated that a preme Court has (1968), guarantees a capital punishment holding views on prosecutions, all criminal defendant “[i]n substantially impair the prevent or “would trial, public speedy to a . . . the duties,” id., ex may be of his performance ” U.S.Const., jury . . . . impartial suggestion cluded, reject we State’s requisite to ensure the amend. VI. In order among every as foreman is that service has held Supreme impartiality, of no we know juror’s duties. methods juror selection serve, any juror Georgia requiring law uncommonly willing to “produce[] a will, jury in as foreman against *6 die,” supra, Witherspoon, a man to condemn any case. (footnote 521, 1776 at 88 at 391 U.S. S.Ct. that these ve appear not Only a ve It does omitted), are unconstitutional. voting in full incapable of niremen were unambiguously nireman who “states it, evidence, viewed they with the against accord automatically vote he would Whether a judge’s charge. with the id. at and capital punishment,”5 imposition conscience, a good in sign, could n.21, (emphasis n.21 venireman 88 at 1777 523 a defendant’s would result in intro added), notwithstanding the evidence verdict un jury service charged by is immaterial law execution by parties duced or the by The action constitutionally Witherspoon. der judge, can be excluded us, sure, “with veniremen Only to be capital ease. court leaves service in a than” said, basis venireman, on . . . broader has . . . excluded such a the Court [a] authority6 Witherspoon subsequent the law clearly be unable to follow “would sentence with a “death permit, Adams v. assessing punishment.” [that] in ... 2521, Texas, 38, 100 S.Ct. v. 448 U.S. 6. Adams Witherspoon we confront did not nor do Ohio, (1980); may 438 v. question impartial 581 Lockett factfinder 65 L.Ed.2d whether an (1978); 2954, 586, responses 57 that a venireman’s initial U.S. 98 S.Ct. determine 399, Georgia, pene- 97 50 questions 429 U.S. were false. A v. on voir dire Davis Bishop, (1976); 398 trating Maxwell of a venireman 339 cross-examination L.Ed.2d v. (1970); might, example, 221 to sit on 26 L.Ed.2d reveal his resolve 90 S.Ct. U.S. Holman, capital a 89 S.Ct. in order to “veto” 394 U.S. a in a case Boulden penalty. Although trial court in the death 433 22 L.Ed.2d findings, judice we do such case sub made no prohibition Witherspoon as a blanket not read excluding on such a venireman. 7 Witherspoon, out was found met the Fifth in cannot be carried . Circuit States, n.21, Chapman at 522 supra, 391 S.Ct. at v. United In Witherspoon, supra, n.21. the court U.S. at n.21, upon only relied several factors. There was 88 S.Ct. at 1777 n.21. single reference defendant’s Writ, issuing The district court order made silence. That reference was neither Illinois, on the Witherspoon basis of prosecution, nor elicited but instead existing sen- affirmed. Petitioner’s death spontaneous from a re- resulted witness’s tence shall carried out. district repeated mark. The reference was neither er- finding court’s harmful constitutional exculpatory story. nor linked to defendant’s petitioner’s on ground ror v. Ohio Furthermore, the court found that this sto- pro- reversed. The case is remanded for ry “transparently frivolous” and ceedings opinion. not inconsistent with this was otherwise overwhelm- evidence It sois ORDERED. F.2d, ing. 547 at 1250. See also United part; in AFFIRMED in REVERSED Sklaroff, part; REMANDED. 1977). However, Chapman also notes single that “even a ex- reference direct CLARK, Judge, con- THOMAS Circuit amination to defendant’s silence carried an curring part dissenting part: in intolerably prejudicial impact, where the respectfully respect dissent Part story exculpatory defendant’s was not to- majority opinion. II of the appar There is implausible tally government’s in- ently no dispute between the members of overwhelming.” culpatory evidence was not majority myself it was error F.2d, at 1249. the Court agent testify for GBI Keadle to error indicates that reversible can result questioning Alderman the latter de prosecutors purposefully employ where attorney cided to exercise his to an post-arrest defendant’s silence to defeat majority remain silent. The holds a transparently exculpatory even frivolous that the error is harmless a reasona Id., story. at 1248. ble doubt and that the district court miscon Applying guides to the facts at holding strued our v. United hand, the Court must conclude that States, (5th Cir.), 547 F.2d 1240 complained error of was not harmless be- yond a reasonable doubt. Mr. Alderman (1977). I find discussion of the harm testified quarreled7 that he had with his point error Judge less District B. Avant early wife evening her death. helpful: Edenfield very on, motorcycle Later he drove his her Even though Doyle and Hale were violat- grandmother’s believing home Al- that Mrs. *7 ed, this can only be basis for reversal probably gone derman had there. Petition- the is when error not “harmless.” an For family er claimed that he saw the car harmless, appear error be it must to the lights grandmoth- on in the the creek near reasonable evi- doubt the pants er’s home. His stained when became complained dence of did not contribute to investigate he went down from the road the Petitioner’s conviction. v. and, lap. subsequently, put her head in his California, However, discovery the shock of the This difficult standard of fear his in-laws’ reaction caused him argued in, 1979), approved 7. The state has 626 F.2d further because peremptory challenges 1980) (en banc), again today. retained sufficient ex- do and we so cause, person clude all three veniremen here without been “No from which even one has [grounds the state court’s action inwas the nature excused on . .. broader than Wither- pal- constitutionally penalty “harmless spoon] may impose error” and thus a death or sit Legal may atable. imposed, regardless As amicus curiae NAACP De- where it case Fund, correctly points challenge fense & Educational peremptory Inc. an whether available out, rejected position prior we have this might 592 F.2d have reached him.” occasion, Estelle, Burns v. thermore, because no tests were ever made immediately and to the scene almost flee on the water in Mrs. lungs, Alderman’s of the event out of his block all recollection there was never firm demonstration that time thereafter. mind for some she was drowned in her bathtub and not Obviously, explanation Petitioner’s is not Dasher’s Creek. T. 318. 8 However, it easily accepted.7 ap- does inculpatory evidence in the pear that apparent significant It then that as- nearly overwhelming case was so present pects prosecution’s of the were case far Chapman. police true in There discov- overwhelming. apparent from It is also holding a crowbar ered the defendant complained that the state’s role in the error He wedged in the front door of bank. was far different from the one described explained only by claiming that he was Chapman. Here the witness’s statement crowbar after it had been recovering his produced by was in fact inquiry the direct hitchhikers placed there two unidentified prosecution. being sponta- of neous, Far from to whom he had loaned his car. In carefully- it was the result of a major case the direct link of Peti- present phrased question obviously attempt- which tioner to the crime was the keep agent’s ed to the GBI reference to Brown, acquaintance an John Arthur protections Petitioner’s silence outside the who, alleged accomplice quite unlike Peti- in Doyle prosecu- discussed and Hale. The tioner, long history drug had a abuse and asked, tor “Was custody Mr. Alderman in instability. mental T. 383. This witness ... or were simply discussing with periods when he experiencing admitted to ” . replied him. .. The witness referring to distinguish reality fantasy could not seeking “A only background.” little bit of and other occasions when he drank so heavi- indicated, already T. 111. As I have ly that he was unable to recall what he had circumstances surrounding questioning done. T. 393. He also indicated that he support “pre- do not at all an inference of drugs night had numerous before used liminary investigation.” Moreover, the fact crime, and consumed at least sixteen ventured into this area evening alleged drinks the of the murder. very and risked the result reached here T. 454. suggests that he regard did not his own though story hardly Petitioner’s Even case as “overwhelming.” otherwise understanding, many as- subject easy similarly account' were of Brown’s pects Finally, note Court must example, he testified For open to doubt. jury which reviewed this evidence was al- Alderman around a that he stalked Mrs. Witherspoon tainted error not- ready for over half an hour hold- apartment small impartial ed above. It was not cross-sec- twelve-inch crescent wrench al- ing the Instead, community. per- tion of the three arousing to strike her without legedly used particular sensitivity sons who exhibited curiosity even in the decedent. suspicion or gravity juror’s responsibility of the a violent T. 431. Brown also described improperly excluded. The Court must struggle during which Mrs. Alderman merely possible therefore evaluate not wrench.9 on the head with this first struck impact improper reference on the then tackled Mr. Alderman She panel actual but on one that was never in Mr. blow to the floor after Brown’s knocked developed. fact The Court must consider Brown stated that he proved inadequate. prosecution the role of the in the error and un- strangled then her into and Petitioner presented, the nature of the evidence all in apart- her in the placed consciousness context of the Witherspoon problem. where she drowned. How- ment bathtub facts, In the face of all these I cannot no ever, medical examiner found the state conclude that no “reasonable doubt” exists strangulation. He whatever of indication disputed as to the harmlessness of the testi- *8 impossible it was all but also indicated that circumstances, mony. In these I must also have been attacked as Mrs. Alderman to for on the issue reverse remand retrial leaving some such without Brown described guilt. of Moreover, the examiner evidence. T. 297. that, a blow while there had been indicated argument There was no serious made at head, it not of a to the decedent’s was misunderstanding trial that this motivated the nature, not sufficient to make serious any slaying. showing of Neither was there than anything that she was other him doubt Instead, particular marital discord. it was as drowning victim. T. 297. Fur- typical serted killed his wife for the that Petitioner to Mrs. Alderman. $10,000 have been used strike policy proceeds insurance she of a explanation why she no City There was also employee as an of the of Savannah. held However, or at much rendered unconscious least was not there was no hint Mr. Alderman severely injured her when Brown struck more any money. special of He in need was was heavy presumably quite job managerial on the head this regularly employed in a at a implement. supermarket. City There no indi- was Garden had a record or cation that he criminal was majority The states that court district any in trouble. otherwise the Chapman test1 con- applying erred in pointed It be out that Mr. Alder should junctively rather than The disjunctively. story supported was man’s opines majority judge be- expert concluded witness. This doctor lieved that he had find the defendant’s Petitioner had suffered a “dissociative reac exculpatory not story totally implausible discovery. the shock of the tion” caused and the indicia of guilt overwhelming, not was, Psychiatrist This reaction concluded Alderman, the to deny Chapman. habeas under ma- after examination of Mr. cause The of his selective amnesia. Petitioner’s account says jority that a finding of either suffi- is police descriptions comports with also deny cient the writ corpus. of habeas clothing light his as and “wa bloodstains on The majority opines then indicia of tery.” T. 174. this of guilt were overwhelming thus, since fact “shock” seems to account for the part disjunctive one met, test was wet, simply Petitioner did not stained, remove his corpus habeas writ should be denied. obviously highly incriminating clothing. Certainly ample opportunity. he had There was no error in applying both Mrs. Alderman was discovered around 11:00 prongs of the Chapman Chapman test. re- T. Mr. Alderman P.M. 27. was found his quires reversal if either test is met. The Thus, apartment T. around 3:00 A.M. he majority says that a finding guilt must clothes, change had several hours to and he be affirmed if either test met is and that problem. According not unaware of the here guilt the indicia of are overwhelming. Brown, already to his chief accuser changed he had The majority turns the test on its head. clothing after his once was bloodied Reversal is required if either test is met. struggle in the Mrs. subdue Alderman. T. (There apparently attempt Here the district court found that both tests no made clothing allegedly met; to locate worn thus he had two reasons for struggle to subdue Mrs. Alderman. Nor did reversing. any police perform clothing tests on the Mr. Lastly, the majority refers to United put Brown on after the murder to determine Shavers, States (5th whether it too was stained. Brown indicated 1980). There we said the following: jail in that was still his cell when he took the Furthermore, 440.) witness stand. T. Our standard for determining whether prosecution accorded the account sufficient prosecutorial comment on defendant’s si weight justify questioning expert about lence for substantive or impeachment val hypnosis disregard use of in direct ue is harmless has been somewhat uncer brought order the trial court that it not In Chapman States, v. United tain. way. up Smith, any prosecution The asked Dr. 1240, 1249-50 (5th F.2d denied, Cir.), cert. witness, expert the defense whether 908, 97 U.S. 52 L.Ed.2d 393 hypnosis been had used and whether it could (1977), we attempted to harmonize our be “faked.” Both answers were in the affirma sought Doyle violations and question concerning decisions When tive. the defense techniques on witness that had been used to the harmless error test by placing cases “faking,” judge detect the trial enforced its into three distinct categories. pronouncement earlier and refused to allow Unfortunately, recently noted specific questioning by the defense. T. 736. Dixon, United States v. 593 F.2d 626 ruling. Error However, claimed on the basis of this 1979), many cases lie somewhere in because find and Hale dis- categories between the Chap discussed in positive, the is not reached issue below. man. In such situations we must seek 9A wrench such as Brown described was refuge in the case ease rule of among found Petitioner’s tools after the al Davis, States v. 594-95 and However, leged per crime. no tests were ever denied, cert. (5th Cir.), n.31 might formed on it determine whether it Chapman test paragraph is “reversible error results The entire (he exculpatory story totally implausi if appears page majority opinion. not six of the overwhelming.” ble or Actually, Chapman the indicia of there are three tests States, v. United 547 F.2d 1240 second is the one. Cir.) *9 (1977). America, an examination of requires “The decision UNITED STATES of error, facts, trial context of the Plaintiff-Appellee, thereby jux- prejudice created strength of the evi- taposed against guilt.” United dence of defendant’s Lloyd JONES, Defendant-Appellant. Meneses-Davila, States No. 80-7433. single have held that even a refer We Appeals, Court of to defendant’s ence on direct examination Fifth Circuit.* intolerably prejudicial silence carried Unit B exculpato impact, where the defendant’s ry story totally implausible was not Dec. inculpatory evidence government’s overwhelming. was not United States 1976), Impson, 531 (footnote omitted). F.2d at 269 The district court found that defend- exculpatory story totally was not im- ant’s plausible government’s inculpatory overwhelming. agree. evidence was not I dissent.

ON REHEARING AND REHEARING

EN BANC GODBOLD, Judge, Before Chief RO- TJOFLAT, HILL, FAY, VANCE,

NEY, KRAVITCH, JOHNSON, Jr., M. FRANK HENDERSON, HATCHETT, ANDERSON CLARK, Judges. Circuit THOMAS THE COURT:

BY A member of this Administrative Unit having in active requested Court service poll a application rehearing on the en majority judges banc and a in this Administrative Unit active service hav- ing granting rehearing voted in favor of a banc, en F.Supp. IT ORDERED that the cause shall be IS

reheard this Administrative Unit of the argument en banc with oral on date speci- hereafter to be fixed. The Clerk will fy briefing filing sup- schedule for the plemental briefs.

* 9(1) Former Fifth Circuit Section of Public Law 96-452 —October