*3 RONEY, HATCHETT, Before HILL and and arbitrary discriminatory application of Circuit Judges. Georgia’s death penalty petitioner, so attempt that the relitigate here a clear HILL, RONEY and JAMES C. Circuit writ; third, abuse of the the defendant Judges: right object waived his jury by Joseph Ronald Akins and his wife of failing to assert the issue at appeal, on Akins, twenty days, Knight Juanita were inor his first corpus proceeding. habeas in a killed secluded area of a new housing Petitioner’s execution was scheduled for development County, Georgia, in Bibb on 25, August 1983. A notice of appeal was August shotgun by blasts fired at 22, August filed in this Court on Monday, Petitioner, range. Smith, close John Eldon from denial of the relief the district Tony Machetti, also known with charged as August court entered on 19. A Friday, firing shotgun, was convicted murder stay motion for of execution was simulta- sentenced death. filed, neously along with a motion for cer- Briefly, petitioner the evidence was that probable tificate of cause. motions Both wife, and his Rebecca Akins Machet- Smith were denied the district court. ti, together with John to kill plotted Akins, a former Following procedures husband Rebecca’s indicated by children, the father of her three order Barefoot v. Estelle,-U.S.-, 103 S.Ct. proceeds. collect life insurance John 3383, this Court and petitioner Maree testified that he lured gave proper notice that the Court would pre- Akins the area of the crime on the consider the merits as well as the pending of installing tense a television antenna. motion and heard two and hours of one-half wife, When Akins appeared peti- August 23. argument Tuesday, oral tioner shot them both. filing cooperated by excellent briefs parties arguing thoroughly all issues raised in Before this Court is the appeal from appeal. stay, The Court entered a corpus denial a second federal habeas petition that asserted three re- to more is- grounds thoroughly order examine the - and called for additional presented, sentences aff’d sues Conviction & Jan. 6, 236 Ga. 222 S.E.2d State, by August be filed briefs to (1976).1 Powell refused to vacate Justice Court Cert, Georgia, denied, July reflects the full here stay. Our decision the merits of the case consideration rehearing denied, Oct. Petition for from the trial and both based on the record Georgia, 3224, 49 proceedings, voluminous - Petition for Writ of Habeas Oct. Corpus briefing appellate stage, trial and Court. Superior argument, Court’s oral extensive (unpublished Mar. Petition or- dismissed der). legal issues independent research dismissing affirmed, Order petition Oct. involved. Smith Hopper, 240 Ga. S.E. 93, 239 decision, insofar our understand To 510(1977)2 2d the writ abuse
relates *4 Cert, denied, v. June 1978 436 Hopper, 5, a chro- to review helpful issues, it 98 56 waiver U.S. S.Ct. L.Ed.2d 950, 2859, (1978). 793 case: in proceedings prior the of nology rehearing 1978 Petition for 2, Oct. denied, 1975 Petitioner convicted. 30, Jan. v. 439 U.S. 99 S.Ct. Hopper, 884, (1978). Rebecca Smith Machetti L.Ed.2d 199 1975 convicted. 229, 58 Feb. 2726, trials, (1972), 33 separate and the the Although convicted 1. amendment, penalty eighth petitioner con- death the his wife were violates and of both cases since, (10) penalty disproportionate appeal, the death to minor with on direct solidated cases, (11) imposed the sentence it was in similar com- exceptions, errors were the enumerated permit by error to cross-examina represented reversible They were both cases. mon to petitioner tion of about a letter from him to his attorneys. separate portion wife and to admit a of the letter into (1) the testi of error were: The enumerations impeaching purpose of evidence the limited mony accomplice, was not John the of testimony. independent there was in that corroborated Georgia Supreme Court undertook a sen- the with defendants which connected evidence excessiveness, proportionality, tence and the influence of review thereof, alleged or the commission crimes the passion, prejudice, any admitting numerous (2) erred in the trial court arbitrary factor, other and whether the evi- testimony hearsay no evi where instances supported jury’s findings aggra- dence the conspiracy independent of existed dence of vating circumstances. coconspirator alleged testimony of the the Maree, (3) the trial court accomplice, John Georgia Supreme dealt Court- 2. admitting Maree as of John erred in appeal of habeas on from denial three issues by allegedly Re hearsay statements to (1) petitioner deprived of an relief: of defendant’s in violation becca Machetti rights jury representing impartial true cross-section clause, to and as confrontation to the community required by Taylor as v. of the Re petitioner it was shown where 522, 692, Louisiana, 419 42 U.S. 95 S.Ct. testify or was to would refuse becca Machetti persons (1975), 690 because L.Ed.2d would testify to truth of the unavailable to automatically imposing otherwise against the vote statements, (4) in court erred the trial regard such admitting penalty to the evidence without death were excused con two officers Witherspoon jury. from the 510, with cerning Illinois, 1770, with defendants their interviews 20 88 L.Ed.2d 391 U.S. rights, (5) informing Miranda presented them of their the habeas out because there Evidence to 776 corpus authorizing quali- Witherspoon no valid statute showed that Georgia, likely penalty guilt-prone in for murder more to death hence fied impos phase guilt error in reversible trial. at the a bifurcated trial court committed ing convict case,” (6) penalty penalty, error was 239 reversible this is a death death “Because overruling 510, court assumed without decid- the trial court committed S.E.2d indictment, (7) objections ing the evidence was cause to allow there demurrer finding by support composition and did of the traverse was insufficient Wainwright apply statutory aggravating nec rule of circumstance the waiver 72, 2497, cases, (8) Sykes, 53 penalty L.Ed.2d the trial court 433 97 essary U.S. in death failing jurors (2) excluding prospective because erred 594 inquire erred jurors prospective im excused of two reservations conscientious of their personal they their Witherspoon to make were able penalty whether views posing in violation 1770, their 510, Illinois, on subservient 20 the death 88 S.Ct. peti- (3) jurors, legal duty a letter penal (1968),(9) Georgia 776 have been allowed should not require to his wife tioner ty not conform statute does 238, Georgia, 408 92 in evidence. ments Furman
1463
Aug.
Writ of Habeas
Petition for
24,
21,
Corpus
Feb.
Justice Powell’s
declining
Order
District
M.D. Ga.
filed in U.S.
vacate stay.
Aug.
Magistrate recommended denial
This
25,
Court’s letter
counsel to file
Sept.
of all relief.
August
other material
(unre-
denied relief
District court
Nov.
In these
petitions,
a total of
appeals
judgment).
order
ported
jurists
separate
on seven
state and feder-
v. Balk
affirmed,
This Court
Nov.
courts,
al
some on
(the
several occasions
Unit B
Cir.
corn,
1981).3
Supreme Court of the United States has
rehearing, 671
modified
Mar.
Opinion
petitioned
times,
Georgia
four
Su-
1982).
B
F.2d 858
Cir. Unit
five),
Court
preme
have considered Smith’s
Cert,
Smith v. Balkcom,-
denied,
Oct.
procedural
claims. He
sought
devices
U.S.-,
(stays of execution and full hearings)
for Writ of Habeas
Petition
June
Second
fully
insure that his claims be
developed
Georgia
filed
Superior
Corpus
and considered as well as relief on their
Court.
Court dismissed merits. He
provided
has been
most of the
Georgia
Superior
without consideration of
immediately
the merits.
procedural protections
sought. No court
has found
merit
of his claims.
Court
remanded
Sept.
hearing
“for
appeal
evidentiary
Alleged Giglio
I.
Violation.
on the issues raised in the Petition.”
The petitioner
did not
(after
raise the
Nov.
Court
remand
brief
Superior
issues)
hearing on waiver
denied evi-
claimed
violation until his second
hearing on merits and dis-
dentiary
*5
corpus
At
petition.
the insis
missed.
tence of the Supreme Court of Georgia on
Georgia
1983
Court
1,
Mar.
reversed and
Supreme
again for
remanded case
evidentiary
its second remand of that petition to the
hearing
claim
of mis-
prosecutorial
state habeas corpus judge, a hearing was
conduct.
250
Zant,
Ga. 645,
(1983).
real conversation Transcript deal whatsoever.” of June The state finding court’s that there hearing unequivocally agreement at 10. Maree was no between Maree and he had prosecution “fairly stated that had discussions with supported by the rec- life Hasty concerning 2254(d)(8). sentence ex- ord.” See 28 Petition- U.S.C. § change testimony for his at er Smith’s murder satisfied his of proving by burden trial. Id. Maree also stated at the convincing evidence finding that this was hearing habeas that he had testified at erroneous. Smith’s trial advice of his Sparks counsel Petitioner asserts that the state habeas who had concluded that it inwas Maree’s hearing was not full fair. He first interest, the circumstances, best under all to asserts that hearing was flawed be-
give testimony. full truthful cause, at hearing, Hasty repre- was by private sented counsel and representa- If the state habeas court afforded tives of Bar of Georgia State were we, full petitioner hearing, and fair aas present. Petitioner’s assertions that court, Hasty federal habeas must apply pre had made “deal” with witness Maree and sumption of correctness to the state court’s its petitioner’s abided concealment at Mata, findings. written factual Sumner v. trial had attracted the bar’s attention. might Such conduct well constitute unethi- (1981); 2254(d). 28 U.S.C. Petitioner cal conduct. Petitioner does contend presumption must rebut this by establishing presence the bar investigators or by convincing evidence that prevented Hasty’s petitioner counsel findings court’s are erroneous. Sumner v. presenting Mata, 768-69; argument evidence or Zant, fully otherwise developing fiance v. claim. Cir. 1983). record, As we view impact, any, if pendency
The state bar findings proceedings state court’s are fact am- ply supported by Hasty petitioner. aided The state Although evidence. Hasty’s habeas aware subject certainly impeachment presence of the fact investigators. inherent in his bar prior sworn (which affidavits, Hasty subject statements as sworn to such proceedings con- stituted evidence impeach facts stated in would tend to at the them), the state found petitioner’s pres- hearing, benefit. *7 to, been there had no promise counsel, ence con- private retained in with, agreement made witness Maree. matter, In nection with the and disciplinary the finding, judge so found in accordance the the presence representatives bar all with the sworn testimony taken from all presented Hasty motivation to to exonerate appeared the witnesses who before him. To most It dramatically. himself would have to contrary have found the would have re- petitioner’s upon been material attack quired finding that each every and wit- Hasty’s coin- testimony proven have the ness who knew the facts had lied in their disciplinary proceedings. cident They were testimony given hearing. shown to the court effectively state more petitioner expected than could have been Resolution of conflicts evidence prove. credibility issues rests prov within the court, Farmer, ince of Attorney the state habeas Millard said to have provided petitioner doing petitioner’s has been afforded work” at- opportuni “leg to a full and ty hearing. fair from torneys, Hasty U.S.C. had taken affidavit 2254(d) give does claim. support petitioner’s federal habeas offered at We conclude that the state hearing, the second concluding
After petitioner hearing a full and fair the correctness afforded Hasty had denied which All desired on this contention. witnesses had had sworn that he the affidavit and produced even where ad- petitioner were by Farmer that he would been assured produc- journment required was for their it, judge correct the state opportunity No evidence offered tion. admissible pro- time to petitioner allowed additional finding that petitioner was excluded. witness, by deposi- duce Farmer as a live or pretrial agreement there was not a hearing Transcript tion. June all the promise supported by Maree was chose, instead, to file at 144-45. Petitioner it testimony sworn was substantial. Farmer’s affidavit. or promise, Absent a deal there was no that the state habeas argues Petitioner arising violation from the failure was al- hearing faulty in that he prosecution reveal one. subpoena inspect lowed to the confiden- alternatively that Petitioner asserts State Pardon and tial record prosecution against threat wit- presented concerning Board witness Maree. Parole ness and that failure to reveal this Maree re- provides that these files Georgia law Giglio v. United jury threat to the violated 42-9-53. It main confidential. O.C.G.A.§ supra. pretrial discussions might con- suggested that such a record counsel, prosecu- Sparks, Maree and that, for the contention support tain some position. tor Maree’s Maree had outlined trial, petitioner’s promise before had been had confessed to the murders. His confes- di- made to At the district court’s Maree. prosecutor sion a better case gave file, sealed, provided to the rection this possessed Maree than the state it in district who examined camera. against Maree’s co-indictees. The nature of We It is a of the record before us. part penalty the crime made the death available. it. It support have examined offers proposition. Nothing stated to Maree was concealed at trial jury. testimony from the Maree’s hearing Petitioner asserts that made it clear that he was sub- abundantly than the state less full fair ject prosecution. knew that. prof- court refused to admit Maree No one concealed from Murphy fered Davis. witness Reverend hoped, by testifying, might escape that he after long This witness offered to If that was not penalty. appar- death petitioner’s participated Davis had ent testimony, prosecutor from Maree’s a debate with former Assistant Bibb Coun- said, in made it clear to when he Thompson District Donald as to ty Attorney argument closing non, propriety, vel thing.... debate, Thompson I other you want to tell one and that John Eldon necessary charges for Maree to be This indictment stated that was Smith, Machetti, off life Rebecca Smith let with a sentence order to a/k/a Machetti, Re- Jr. with against petitioner obtain evidence a/k/a and John counts, Davis’ two becca Machetti. Petitioner offered the offense of Murder in Tony Ma- prove Thompson’s the truth of this case has been severed and are not to Thompson pre-deceased being pass statement. these chetti is tried. You insufficiency guilt of two proceedings. Aside from the on the the other defendants. *8 Circuit, I tell alleged Attorney of what is to said of this Thompson have to As District pretrial will prove the existence of deal with that those two other defendants you Maree, anything I if I have you witness this evidence was offered to be tried and tell will be it those two defendants prove the truth the matter therein and to do with hear, I you Murder and will hearsay. constituted inadmissible The state convicted has sure, attorney the defense judge permitted petitioner proffer to am to you will talk closing argument of Rev. of a testimony Davis the form to going he is what direct examination Davis. about John I tell you right out of this trial. can get pus petition. Balkcom, 660 F.2d going what he is to out of He get now it. (5th 1981), modified, Cir. BUnit cert, Murder, be going is to convicted of two (5th B), denied,- F.2d 858 Unit Cir. Murder, counts of if I to anything have -, do with it. You heard his that (1982). Appellant that admits the issue for promised protection his fami- raised in this petition is same claim course, ly. you Of have to understand in which previously decided adversely to hoping that he is he is him but asserts that he now has additional going to save from the himself electric evidence which he could not presented It is the It chair. human reaction. is adjudicated the first time this court this hope natural for him to that but he told Alternatively, issue. petitioner contends you, and I can tell there has no you, been that altered the standard promise. adjudicate which we claims of discriminato- position The threatened of Maree was application of ry the death penalty Geor- jury. subject clear He was to prose- gia. (He cution two counts of murder was so 9(b) Rule of the Rules governing § prosecuted); attorney district intended provides: eases (He to obtain convictions on both counts did); petition A may Maree was to avoid the second successive hoping death be penalty (He did); promise but no had been dismissed if judge finds that fails him. allege grounds new different or, relief if new and grounds different of Giglio thrust and its progeny alleged, are finds fail- ensure that the know the facts ure the petitioner to assert these might motivate a in giving witness grounds prior petition constituted an testimony, and that the prosecutor not abuse of writ. conceal such fraudulently facts from the jury. impact We must focus on “the on the Appellant correctly notes that a de Anderson, jury.” United States 574 F.2d application nial of an corpus habeas is 1347, 1356 (5th Cir.1978); see United States judicata not res with respect subsequent Meinster, (4th F.2d 1044-45 applications. Sanders v. United Cir.1980) (Intent punish “is not to 1068, 1072-73, the prosecutor; primary rather the concern 9(b) Rule codifies the seminal be the prose misled preserves existing case of Sanders case knowing cution’s use of perjured testimo respect law with abuse the writ. Ad to. Barham, ny.”); United States v. 595 F.2d Note, visory Committee Rule Rules Gov Cir.1979). erning 2254 cases in thé Section United In this aspirations case Maree’s fears and (28 District Courts States U.S.C.A. Foil. were clear. The was made aware of 2254); Zant, Potts v. Maree’s situation and could test credibil- cert, B), denied, Cir. Unit ity taking his posture threatened into con- case, sideration. Under the facts of this In the opportunity pris- order curb Giglio violation occurred. oners to file nuisance peti- or vexatious Appellant’s Georgia II. Contention that tions, ease the burden on the Death Penalty Arbitrarily Is Statute arising petitions, guide- courts from such And Discriminatorily Imposed. lines have evolved as to when a district court, judicial exercise of its sound successive habeas petition, discretion, may decline entertain on petitioner asserts the merits a repetitious peti- successive or arbitrarily discriminatorily imposed. tion. unsuccessfully guidelines raised this These reflect a concern same claim abuse, in his first federal cor- in the absence a federal
1468 Oliver, 1323, v. F.2d 1325-26 Bailey at least once 695 adjudicate will
habeas court asserts, (11th Cir.1983). how petitioner. of a Petitioner the claims ever, that modification of its panel’s the Zant, at 738. Potts v. 638 F.2d change in the original opinion constituted a States, United 373 v. Sanders a his to raise crucial justifying law failure 1, 1068,10 148 S.Ct. U.S. of discrimina point by presenting evidence that federal court Court held a the States, tory impact. See Sanders United may give 16-17, 1077-1078. at 83 S.Ct. at of weight pri- ... denial controlling lacks merit. This assertion re- habeas ... federal application or (1) ground presented the only lief if same in opinion of our The modification subsequent application was deter- in the petitioner’s of con adjudication earlier adversely applicant mined to the Balkcom, tention, 671 F.2d at application, (2) prior determina- prior peti that a requirement not alter the did merits, (3) the was ends tion on intentional discrimination. prove tioner justice by would not be served reach- of opinion, 660 F.2d Our earlier subsequent applica- the merits of the ing 1981), implied that the court Cir. Unit B tion. purposeful never find intentional would determining at at 1077. In Id. S.Ct. proof from circumstantial discrimination justice” “ends would be whether of racially impact. proof disproportionate by readdressing served merits of opinion acknowledged that The modified in prior peti- same contention as raised in certain existing precedent, long factors, tion, objective we must look at such instances, racially evidence of “statistical hearing full fair whether this strong so be impact may disproportionate petition to the first and wheth- respect permit no inference the results other intervening change er there been an has racially they product are the but 16-17, at the law. Id. at 1077- S.Ct. discriminatory purpose.” intent or 1078; Zant, at 739. Potts v. 638 F.2d Balkcom, (citing Village F.2d bar, In the case at concedes that Metropolitan Housing Arlington Heights v. argument regarding alleged discrim 252, 266, 97 Corp., 429 Development U.S. Georgia’s death inatory application pen (1977) the same claim that alty presents statute 389 n. Georgia, 408 U.S. Furman v. adversely applicant was determined 2804 n. 33 L.Ed.2d adjudication. party dis prior No C.J., (1972) (Burger, dissenting)). That putes prior determination was proceeded upon which Smith proposition Balkcom, the merits. See Smith our opinion petition in his first modified, 1981), B Cir. Unit Nei change proposition. in that cert, worked B), denied, (5th Cir. Unit F.2d 858 panel opinion nor the mod original ther the -, evi to declare what ification undertook (1982). We must therefore determine discrimina prove purposeful dence would adjudication whether a new of the merits of state; pointed up they merely tion would the ends petitioner’s argument serve petition shortcomings in the evidence some it would not. justice. We conclude his claim. There support er offered to the burden of show Petitioner bears fully having The issue no remand. be served ing justice that the ends would fairly by petitioner presented by a v. United redetermination. Sanders finally decided. petition first habeas at 1078. present “new evi- attempt Petitioner’s the initial alleged Appellant merely petition second seeks dence” was not full and fair. hearing this issue expanded ver- introduce a modified 16-17, 1077-1078. See id. at 83 S.Ct. at already rejected of statistics sion Smith cannot assert that denial prior the merits plain adjudicating error. petition earlier constituted See
1469 petition. petition, In this successive habeas Georgia so that provision applied to offers additional Smith conclusions said juries. both
be from the same drawn records were questions before (1) this Court are to him when this available identical asser- whether Smith’s failure to comply with this adjudicated made tion was the sev- procedural state rule constitutes a waiver of passed upon eral courts which it. To enter- challenge his right jury composition, piecemeal tain such submissions would not (2) if waiver, there was such a whether ends of justice serve the but would allow is entitled under be any theory to prisoners to file nuisance pe- and vexatious relieved of its preclusive effect. To titions. allow Smith to reassert claim would allow unsuccessful habeas We hold that Smith has established petitioner to file additional successive appli- “cause and for his prejudice” failure to cations keeping teams of aides at work raise the allegation illegal jury composi- the same data and studying proffering ad- second, tion until his successive state habeas arguments ditional and conclusions derived petition. corpus We affirm the district from and based upon ongoing study. court’s that it holding prohibited from precisely 9(b) That is what Rule prohibits. considering this claim on its merits. Without a further showing of how the ends of justice considering would be served by The law clear that even if a Smith’s reassertion the same discrimina- unconstitutional, jury is that alone will not claim, tion 9(b) precludes Rule consideration invalidate conviction and death sentence merits of petitioner’s argument in if the proper defendant failed to make the petition. successive constitutional challenge. Davis v. United 411 93 36 S.Ct. Constitutionality Jury. III. (1973); Huffman v. Wain made no challenge be 651 B wright, F.2d 349 Cir. Unit the underrepresentation cause of of women 1981); Maggio, Evans F.2d 557 432- procedural at or before trial. The Georgia Florida, 33 Cir.1977); Marlin v. 489 rule requires that a defendant’s challenge (5th Cir.1974). F.2d 702 A to comply failure composition be at or made before procedural requirements with state can be the jury “put the time him”. upon O.C. waiver to assert a right constitution 15-12-162; G.A. Ga.Code Ann. 59-803. § Wainwright Sykes, al violation. 433 U.S. Smith also failed to raise the jury composi 2497, 594 (1977). L.Ed.2d A S.Ct. appeal tion issue on the direct may during restrict time which a initial state habeas may defendant raise constitutional viola action, corpus or in his initial federal habeas Carolina, tion. Parker v. North 397 U.S. corpus wife, however, petition. Smith’s 790, 798-99, 1458, 1462-63, while not issue raising the at trial did in her (1970). A will L.Ed.2d federal court first corpus proceeding challenge honor a valid procedural rule that a underrepresentation of women on the defendant’s failure to to a object grand Louisiana, Taylor 419 U.S. petit jury during before trial constitutes (1975). L.Ed.2d of that objection waiver as a basis for habe relief, she failed to Although obtain state Henderson, relief. Francis v. she did succeed in her first federal habeas 536, 541-42, Linahan, corpus appeal. Machetti v. 679 U.S. (11th Cir.1983).
F.2d 236
This Court held L.Ed.2d 149
the Georgia “opt-out” provision for women
record,
It
is clear
led to unconstitutional underrepresentation
agree,
objection
parties
Missouri,
of women under Duren v.
jury composition
because of under-
representation
women at or
Petitioner and his
before
wife were tried within
few
county
right
weeks
each other in
and therefore waived his
to as-
the same
*11
ques-
The
stated
“cause” sufficient
to ex-
under state law.5
have
sert the matter
designed
is entitled
to
therefore whether Smith
a
default
procedural
tion is
cuse
waiv-
to be relieved of his
any theory
Ford,
696
justice.”
a
of
“miscarriage
avoid
jury
claim, and
assert
the
er
the
to
of
817;
Wainwright,
v.
651
F.2d at
Huffman
petition
on
second
claim
this
composition
1981).
347, 351
Unit B
F.2d
Cir.
for
corpus.
habeas
that
he established
Smith contends
for a
Supreme
has held that
The
Court
the
noncompliance with
state
“cause” for
of
the merits
a
federal court
to consider
lawyers
rule
his
were
procedural
because
claim,
where the defendant
defendant’s
ignorant
recently
of
decided cases. On Jan-
contemporane-
with a
comply
failed to
state
1975,
21,
trial
uary
days
six
before Smith’s
rule,
show
the defendant must
objection
ous
v.
began,
Supreme
Taylor
Court decided
the
rule
noncompliance
with the
“cause”
692,
522,
42
Louisiana, 419
95 S.Ct.
U.S.
v.
“actual
United States
prejudice.”
and
held
the
(1975). Taylor
690
that
L.Ed.2d
1584,
152,
456
102
71
U.S.
S.Ct.
Frady,
a
be
requires
jury
that
selected
constitution
Wainwright
Sykes,
816
v.
(1982);
L.Ed.2d
the
representative
cross-section of
from
2497, 2507-08,
53
97
433 U.S.
S.Ct.
the
community and that
Louisiana statute
Henderson,
v.
(1977);
594
Francis
L.Ed.2d
excluded women from
automatically
which
536,
1708, 48
S.Ct.
re-
they
unless
filed a written
jury service
service,
subject
jury
“opt-
an
quest
be
to
to
requirement Wainwright
Sykes,
The
underrepresentation
that
in’’ statute
led
72,
ed
the jury
that Smith
the Supreme Court held
composition issue in his second state habeas
the 1979 Duren decision would
ret-
be
Superior
first in the
Court
petition,
roactively applied
any jury
sworn after
and then in the
County
Butts
decision,
Taylor
the 1975
because
did
Duren
Zant,
Supreme Court. Smith v.
250 Ga.
not announce
new standards of consti-
would be used in a habeas 10, 1983, suspension faced with May On object claim. did raising Giglio Hasty disbarment, repudiated his two Hasty did claim the affidavit was statements at state ha- prior sworn Smith’s incorrect. Hasty corpus evidentiary hearing. beas nothing in promised that he Maree stated 13, 1983, In the state evidentiary June light- testimony, neither exchange hearing, concerning testified Hasty er nor a letter to the board. parole sentence case: however, hearing, Hasty’s the same During point Boger I do that at one Mr. know understanding testimony reveals that an attorney] Giglio mentioned mo- [Smith’s he would regarding did what sentence exist I expected tion that he to file. do not response recommend Maree. any recall statements made about John he had question whether ever Eldon conflict in Smith’s re- promises attorney, Sparks, to Maree’s I given. he had know testified: garding Hasty that, motion was mentioned at that [but] in the early I had returned recall —I anything time did not mean me. evidence investigation when I saw what *15 January Hasty On learned for had, testi- I knew if Mr. Morray we [sic] first that the disciplinary time board fied, my I knew what recommendation Bar had filed Georgia State Association I I that and be. had determined would him. Enclosed with the charges against with Mr. I ever discussed that think were disciplinary notice action two items: thought At time I I had Thompson. one 1) argu- transcript Hasty’s closing Wilkes, Mr. it with Mr. but discussed during ment Smith’s 1975 in which So, I I I not. knew what says Wilkes did Hasty promises told the that no were But, of, again, because going do. for his exchange made Maree in testimo- had, it with I I did not discuss policy ny, 2) excerpt deposi- from a 1978 Ma- Sparks. And after Rebecca Mr. Hasty that he made a tion which stated over, I or Rebecca trial was chetti Maree to pre-trial agreement testify with probably would have recall —and this codefendant, against Rebecca recall sometime in March 1975—I pertinent portion The Machetti. my office and wanted Sparks Mr. came deposition stated: my And about the case. earlier to talk mind, that if he testified Morae I had known Well,
A.
I talked to Mr.
[sic]
to make a recommenda-
course,
going
I was
prior
[petitioner
that
Smith’s]
sentences.
I recall
concurrent life
he
that case
tion of
testified
office
Sparks
my
Mr.
came into
Ma-
when
he testified in Rebecca
and then
discussing
at that
it and
that we started
chetti’s trial
...
I
Q.
time I
him that would recommend
Sparks
told
Willie
testified that you told
him that if John Morray
two consecutive life sentences
did not
[sic]
“Well,
give
he
Sparks.
said,
he
it
that
would be tried
upset Mr.
And
you
first and
would have now testi-
agreed
be
I
ought to
concurrent.” And
fied that
that’s in fact what hap-
him,
immediately
they
almost
that
pened.
would be concurrent
life —recommenda-
tion
concurrent life sentences.
I
A.
do
[Hasty]
telling
not remember
that,
Sparks
pros-
Mr.
Ibut know the
Hasty’s explanation
prior
his two
ecution business
enough
well
to know
apart:
sworn statements
four
given
years
that’s what I would have done.
his “mind had become somewhat confused
Q. But,
is your
intention that
if Mr.
actually
about what had
happened.”
Morray
state,
did testify to the
[sic]
Although
promise
clear
is
other
evi-
you would leave
open
question of
records,
dent in the state court
the record
whether he in fact would be tried or
does
an understanding
parties
show
all
permitted
be
plead
would
guilty?
as to
happen
what would
the event Mar-
A.
[Hasty] Did
Sparks
not tell Mr.
what
ee
testify.
did not
The central
portion
I intended to do.
understanding
illustrated
Maree’s
Due to
inconsistency
Hasty’s
between
testimony.
a sworn affidavit he stated:
deposition
affidavit,
and his
only
pertaining
statement
the state court finding
pretrial agree-
of no
I
my
agree
trial was that if
did not
ment is not fairly supported by the record.
(Fred
D.A.
testify,
Hasty)
then
finding
incredible
that Hasty and Mar-
assign
would
to an
my case
assistant dis-
ee had no
understanding
supported only
attorney
trict
prosecution
and that a
by Hasty’s statement
that he was confused.
death
likely
sentence would most
be
Logic, experience, and events at trial dic-
sought.
tate otherwise.
lawyer,
Maree’s
Sparks,
Willie
characteriz-
A federal court must make its own credi-
ed the understanding as follows:
bility findings under these factual circum-
Hasty
recall,
Mr.
did
as I
say,
if
credibility findings
stances.
State
are
Morray
cooperate,
did not
it was
[sic]
never
on a
binding
federal court. 28 U.S.
quite possible that he would be the first
Mata,
Sumner v.
2254(d)(8);
C.A.
tried,
man
might
the state
well seek
the death penalty.
(1981). The state record as a whole clearly
ger man.
though
where
fession, on the car and
from the
tive
thought
Well,
can’t
conveyed
was to testify for the state.
[******]
already
was to
would
recall
after
he did
*16
his
point
deal with
go
best
confessed a voluminous con-
Mr.
get
precisely
there
his
of view of his self interest
and wisest course
Morray
the death
trial
conversation,
palm print
appear
was some
the state,
on a
what
[sic]
to be the
case where he
penalty
His
was found
chance
but
while I
alterna-
said,
purely
he did
that I
even
trig-
the
I
closed inducement
United
leniency and concealment
promise or deal need be
process violation occurs if there is an undis-
prosecute.” v. Hawkins ny. United
the idea
as to
violation.
ever, was
Instead, Hasty intentionally misled the jury
ence between concealment of a
F.2d
shows that
Maree’s
penalty sought unless
Smith.
not disclosed to Smith’s trial
Under
Hasty
he
credibility.
would be tried first and the
(4th Cir.1976).
This understanding,
Giglio
communicated to Maree
States
the witness’s testimo-
States,
there
shown.
This is a
v.
is
likely to
the
her
county
where
trial was
because
making a bald
indicated without
can be
held,
unconstitutionally
women were
under-
to be
promise
going
the
is
charge
in the
Machetti v.
represented
jury pool.
to be
going
is
reduced or
case
Cir.1982).
Linahan,
said in Griffin United L.Ed. 993
(1949): ... dogmatic, “it would be too speculation, basis of mere not have conclude that would favor- significance
attached the evidence CONTRAC- F. ALDERETE GENERAL TORS, INC., Appellant, able the defendant had the evidence before it.” findings unsup- are Because the STATES, Appellee. UNITED whole, I would
ported the record as a No. 83-1003. case to the court for an remand this district evidentiary hearing. Appeals, United States Court Federal Circuit. again difficulty,
This case illustrates if imposing impossibility, Aug. 1983. fair man- penalty impartial in a ner. It is a classic of how arbitrar- example
ily imposed. $1,000 to receive for the murder
bargained strong-
and on whom the evidence was the
est, parole eligible in November
He live will because the evidence overwhelming
him the prosecutor convict
needed Thus,
Machetti. a deal was struck.