Leslie Lowenfield v. C. Paul Phelps, Secretary of the Department of Corrections, State of Louisiana

mоther, victim, Thomas her Myrtle REAVLEY, Before JOHNSON Griffin. DAVIS, Judges. Circuit August In the late afternoon of Griffin, stepfather, Owen Sheila Thomas’ DAVIS, Judge: W. EUGENE Circuit inwas a vacant lot near his home Marre- petitioner, Lowenfield, Leslie ro, playing Louisiana cards friends. degree first convicted murder of ring Owen shots Griffin heard out from his persons; court three sentenced him to home, and ran to the house and rushed jury’s on each count on death recom whereupon rang inside more shots out. and mendation. The conviction sentence police arrived, When the they found five by Supreme was affirmed Louisiana sprawled living bodies about the area of Court, Lowenfield, 495 State v. So.2d 1245 house; they found the _ bodies Sheila (La.1985), denied, U.S. _, cert. Thomas, her four-year daughter old Shan- 2259, (1986). 90 L.Ed.2d 704 Post tell, Griffin, Griffin, Myrtle Owen his wife relief was conviction denied the state Osborne, and Carl the father of Shantell. Phelps, court. v. 497 So.2d 301 Lowenfield All of multiple the victims had sustained (La.1986). application On Lowenfield’s gunshot wounds; each had been shot in the relief, federal habeas the district court range. head at close 19, stayed execution set for November For more detailed statement of the carefully so it could peti consider the facts, Supreme see the Louisiana Court’s Following evidentiary hearing, tion. a full Lowenfield, decision State v. So.2d the district court denied habeas relief and _ (La.1985), denied, U.S. _, cert. stay execution; its vacated earlier it also (1986). 106 S.Ct. 90 L.Ed.2d 704 We probable denied certificate of cause. specific now turn issues raised appeal filed a notice of Lowenfield from petitioner; we will discuss the facts further relief, the district court’s denial of habeas as needed our discussion of these issues. probable he seeks a certificate of and cause from this court. II.

I. Duplication A. of the Elements FACTS Underlying and The Crime Aggravating Circumstances Petitioner, Guyana, a native of came to Louisiana Canada June 1981 argues single ag and Petitioner that the victim, primary Thomas, met the gravating upon Sheila circumstance his sen which deputy Parish, sheriff in Jefferson knowingly creating Louisi- tence was based: a risk ana, Thomas, shortly person, thereafter. Ms. to more simply death than one along young with her daughter, duplication aggravating victim a of the circum Osborne, Shantell moved in with required prove Lowen- stance the state field later in the guilt murder, summer of 1981. his degree Lowen- establish of first together specific field Ms. Thomas lived off intent to kill more pers than one year. and on for approximately argues aggravat- one Dur- on.1 Petitioner that this 14:30(3) (3) provides: specific La.R.S. When the has offender intent to great bodily upon degree killing kill or First being: inflict harm murder is the of a human person; more than one 905.4(d) provides: Art. La.C.Cr.P. to follow Lowenfield’s wishes was made the class fails to narrow ing circumstance defense, relation- rely on the alibi penalty eligible for the persons good. ship Lowenfield Both dupli nothing more than it does because they had little con- counsel testified that crime. Petitioner element cate an they threatening letter after cern about Lockhart, 754 primarily Collins relies _ prison learned that it was mailed from the denied, (8th Cir.), cert. confined. where Lowenfield was (1985). 88 L.Ed.2d _, 106 S.Ct. concluded Collins, Eighth Circuit In judge had to consider whether The trial the conclu escape from is “no that there relieving counsel who were familiar with circumstance aggravating that an sion result in an inordinate de- the facts would an element of merely repeats which encourage similar dis- lay of the trial and the nar perform underlying crime cannot delays. The agreements to seek further [required by Supreme rowing function judge no reason to believe that had But, expressly at 264. Id. any Court].” enjoy better relation- Lowenfield analysis Wingo v. Black rejected ship attorney. with a new (5th Cir.1986), burn, Supreme Court United States why aggra “we fail to see we stated where Cronic, narrow the sentenc vating circumstances (1984),held that the determina L.Ed.2d 657 by being less made ing discretion attorney an rendered effec tion of whether of the crime. element constituent assistance of counsel must concentrate tive is entitled to authorize of Louisiana State process, not on the “on the adversarial persons guilty for capital punishment relationship lawyer with his accused’s jury does aggravated acts where these 21, 104 n. such.” Id. at 657 n. at 2046 jus mitigating circumstances find that upon the trial record and the 21. Based penalty.” also tify less than the death court at the testimony before the district (5th 809 F.2d 239 Cir. Thigpen, v. Evans hearing, persuaded we are that the habeas Butlers, 1987); 813 F.2d 664 Wilson during process remained intact adversarial Cir.1987). Thus, upon prece clear based trial. Petitiоner has not demonstrated this circuit, petitioner’s reject we from this dent the motion to the trial court’s denial of that arguments presented this claim. counsel was “unreasonable substitute Mintzes, arbitrary.” Wilson v. Failure to Permit B. The Trial Court’s (6th Cir.1985). To Withdraw and Defense Counsel Appoint Substitute Counsel Assistance of Counsel C. Ineffective Shortly sched before the was attorneys contends that his Petitioner begin, appointed counsel moved uled to of counsel rendered ineffective assistance as counsel of permission to withdraw phases of his guilt penalty both predicated pri This motion was record. guided teaching of trial. are We disagreement with marily on counsel’s Washington, Strickland petitioner’s per refusal to Lowenfield over (1984) 2052, 80 L.Ed.2d 674 defense; urge insanity as a mit them to question in the Court estab- this which on a letter Lowen motion was also based finding requirements for lished two basic threatening counsel them and field sent “First, assistance of counsel. ineffective their families. that counsel’s must show the defendant requires This hearing performance was deficient. at the habeas Counsel testified made errors so seri- pri- showing that counsel motion to withdraw resulted that functioning as the was not inability persuade peti- ous that counsel marily from their by the guaranteed the defendant urge insanity defense. Mr. ‘counsel’ tioner to an Second, the defendant Amendment. Capitelli testified that once the decision Sixth circumstances: following ^[******] shall be considered aggravating person; (d) the offender or great bodily harm to more them one knowingly created a risk of performance that must show the deficient for reasonableness in all circumstanc- prejudiced the defense.” at es, Id. applying a heavy measure of defer- explained S.Ct. at 2064. The Court further ence judgments. to counsel’s that: Id. 104 S.Ct. at 2066. With these mind, principles in particu- examine the perform- scrutiny Judicial ‍‌​​​‌​‌​​​‌​‌‌​​‌​‌​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​‌‌‌​‌​‌​‍counsel’s petitioner. claims of lar highly deferential. It is all

ance must tempting too for a defendant to second- 1. Trial Counsel’s Failure to Produce

guess counsel’s assistance after convic- sentence, all too Mitigation tion adverse and it is Evidence of court, examining counsel’s easy for Sentencing Hearing. unsuccessful, proved after it has defense On claim petitioner complains particular that a act оr omis- conclude primarily produce counsel’s failure to unreasonable____ counsel A sion of was evidence of mental impair Lowenfield’s attorney performance fair assessment of sentencing hearing. ments at the requires every effort be made to sentencing began, Before the hearing distorting eliminate the effects hind- attorneys Lowenfield and his discussed sight, to reconstruct circumstances they whether should psychiatric adduce challenged conduct, of counsel’s and to testimony. op- Lowenfield per- strongly from counsel’s evaluate conduct spective posed persuaded ultimately at the time. Because of the it2 and coun- in making difficulties inherent the evalu- sel that for tactical reasons this decision ation, indulge strong pre- a court must Counsel, sound. at the federal habeas sumption that falls counsel’s conduct hearing, explained that he believed that pro- range within the wide reasonable jury had guilt doubts about Lowenfield’s is, assistance; fessional the defend- that had been difficult for them to resolve. that, presumption ant overcome must pre- He and Lowenfield concluded that the circumstances, challenged under the psychiatric sentation of testimony would “might action be considered sound trial telegraph an admission to the are strategy.” ways ... There countless Lowenfield had the committed crime and provide any giv- to effective assistance in any remaining remove jurors the doubts en Even case. the best criminal defense guilt; they of thought Lowenfield’s that defend attorneys particular would not a possible preserving guilt this of doubt was way. the client in same likely more petitioner psy- to benefit than testimony. chiatric Counsel concluded (citations Id. at S.Ct. at 2065 omit- that: ted). The Court continued: presentation psychiatric [the of] [evi- [Strategic thorough choices made after possibly would effect be more dence] investigation of law and facts relevant to helpful detrimental than because what plausible options virtually are unchal- happened would have be would that we’d lengeable; strategic choices made psychiatrist have the one concerning than complete investigation after less are possibility being insane at of the time to precisely reasonable the extent that the they crime and three or four have professional judgments sup- reasonable psychiatrists saying sane he was at port investigation. the limitations on In time point any of the crime that and at words, other counsel has duty a to make jurors may that been misgiven have investigations reasonable or to make a guilt longer about his no would have particular reasonable decision that makes investigations misgivings. those unnecessary. any In He ex- inef- [Lowenfield] case, fectiveness particular pressed he want go decision not to me didn’t to for- investigate to directly must thought assessed ward with I that. The more Immediately 2. sentencing hearing psychiatric testimony before the phase be- tation of in this Lowenfield, gan, presence outside of the the trial. transcript Trial at 2306. jury, opposed presen- told the court he strategic it, tencing hearing was a I how considered it, examined the more about out, that. decision. agreed I jury was long the 103. hearing record at Habeas In case the court conducted a district mental was ex- Lowenfield’s condition evidentiary hearing. In to full contrast counsel, fully possible by giv- as plored Wilson, attorneys Lowenfield’s counsel petitioner’s cooperation. en lack Coun- explained petitioner’s mental condi- fully petitioner sel and considered whether tion; provoked separate sani- counsel three testimony under- psychiatrists’ psychi- ty hearings which a total of four apparent jurors mine the doubt some of the examining after Lowen- atrists testified petitioner’s guilt. They consciously had of present when each of field. Counsel preserving guilt decided the doubt psychiatrists petitioner. interviewed Considering them better. would serve Dr. psychiatrist, consulted with Counsel give must strategic deference we trial deci- Richaux, agreed testify if Richard who Strickland, coun- sions under the failure of agreed permit it. Counsel Lowenfield psychiatrist sel to call a not deficient desir- with Lowenfield about consulted performance. 689-91, at Id. 104 S.Ct. at presenting psychiatric testimony ability of 2065-66. sentencing hearing petition- at the both specific only complaint other of sub- against decided strate- er and counsel it for performance counsel’s at the stance about gic reasons which counsel articulated sentеncing phase of his fail- the trial was hearing. petitioner’s testify ure to call relatives fully supports district The record court on his behalf. district credited represen- court’s conclusion counsel’s testimony did petitioner that the counsel’s sentencing petitioner hear- tation present his relatives at the not wish to be adequate. ing was family that in event the mem- trial and unwilling bers to come to Louisiana to Object Failure 2. Counsel’s sup- testify. findings Both of these are Weapons Admission Murder ported by presented evidence at the habeas weapons Both that were later estab p. Hearing record hearing. See Habeas weapons as the murder were discov lished after ered relatives Sheila Thomas Butler, Cir. 813 F.2d 664 Wilson murders; one Ms. Thomas’ brothers easily 1987), by petitioner, is upon relied day the rifle the next under bed discovered Wilson, In did not distinguished. counsel coverings on Ms. Thomas’ he was bed while client psychiatric evaluation of his secure a house; rela preparing to clean another suffering despite signals that was pistol later tive discovered week psy defects. Petitioner attached mental vent. heater that report petition to his chiatric habeas recognized that the failure defect. his contention of mental Counsel supported guns police to discover the in the psychological evidence was No other chain of documentation of the imperfect conduct Because the district court record. weapons prob- custody of the could create hearing, held the record did that ed no Mr. lead coun- Capitelli, for the state. from which lems “contain sufficient evidence petitioner, at the habe- for the testified court could whether sel the district determine persuaded hearing he was that stra- stra made a considered Simmons [counsel] advantage tegically it was to Lowenfield’s was tegic decision or whether this decision in the of the acquiesce for introduction Id. at 672. remanded to reasonable.” We stage argument for an hearing question weapons to set evidentiary on the an implicated in the murders performance effec that others counsel’s was whether police sloppy reflected to that the work including decision not tive whether the the state’s entire casе.3 Giv- adversely sen- on produce psychiatric evidence at the because time I made at the strategic Capitelli decision 3. Mr. testifed that: guns, to objected to point, to have why [object The reason I didn’t at to the introduc- guns the introduction objected to weapons] totally strategic, have tion that Lowen- believed “wide allowed counsel who en the latitude” commission ity Strickland, offense. U.S. at time of the S.Ct. at sane at the field . strategy, the dis- confecting trial Second, Lowenfield’s agree refusal to to concluding court did not err in trict insanity assertion of an pre- defense perform ineffectively in counsel did not de- cluded counsel obtaining from more evi- weapons to ciding to be intro- allow simply dence. Lowenfield would not talk objection. duced without about insanity defense. He refused to be interviewed by psychiatrists, more Properly Counsel’s Failure to and he would psychiatric not submit to the Prepare Sanity Hearings for tests his attorneys up had set for him. Petitioner’s counsel made substantial ef- Considering paucity of available evi- petitioner sanity prepare for the forts support dence to insаnity an defense and hearing petitioner cooperate. but refused Lowenfield’s cooperate refusal in the Shortly before the was scheduled to evidence, search for additional we find no begin, Lowenfield refused to be inter- error in the district court’s conclusion that court, by psychiatrists. district viewed counsel was not unreasonable in following hearing testimony after from counsel and their client’s asserting instructions and an Lowenfield, concluding did not err in alibi defense. that counsel made reasonable efforts to prepare sanity for hearing, Lowenfield We also reject the contention that persuade cooperate; him to and to Lowen- counsel should simultaneously have assert adamantly field refused to do so. The dis- ed at trial both an alibi defense and an correctly trict court found no ineffective insanity agree defense. We with the dis respect. assistance of counsel this trict court that “this would have caused complete chaos at trial: one side of the Investigate 4. Counsel’s Failure table, defense counsel would been have ar Insanity Defense and to Present guing defense, insanity an while on the Defense Trial other petitioner side the table would be argument This is meritless for two rea- seeking to take stand in support of his First, sons. the available evidence would alibi defense.” repeatedly Lowenfield in hardly supported vigorous have insanity sisted attorneys present that his should an sanity defense. Three commissions found alibi defense an insanity and not defense. only that Lowenfield was sane sin- Lowenfield’s directions were entitled to be gle dissenting psychiatrist, Dr. Richaux. followed. circumstances are extreme sanity At hearing the third Dr. Richaux ly rare when required counsel is not admitted that he did not “a have definitive follow his client’s instructions on a decision opinion concerning Mr. sanity Lowenfield’s of this nature. McKaskle, Autry offense,” at the time of the but he ex- (5th Cir.1984) (attorney’s pressed opinion his tentative that “there is constitutionally conduct was not deficient good possibility that Mr. Lowenfield when preference he acceded to client’s psychotic” could have been at that time. penalty term). a long prison over According Capitelli’s testimony to Mr. This is not one of those rare cases. hearing, Dr. Richaux habeas the federal only was able to psychiatrist who reading was the persuades Our of this record us testimony on the issue of give favorable vigorous that Lowenfield received a de- defense, insanity counsel, and testi- Capitelli, Lowenfield’s fense. Lead Mr. had likely by rebutted would have been mony worked a chief district attor- as assistant the insan- remaining psychiatrists Parish, Louisiana, ney the in Orleans before felt, retrospect given prosecutors and at jor have the the I in chance considerations argue closing phase, guns one of the Capitelli involved were to at the Mr. the that the time guns things point to shift point possible could to the strongest wants to use these to at a individuals, yet implication call, you light of other if off of Leslie. re- objected strenuously Hearing to the introduc- Habeas record at 109. guns, of these and that one of tion the ma- ing that trial and had it was deadlocked. The court private practice been engaging in polled jury and “do then the asked them capital cases. Our forty fifty to in involved you feel that further deliberations will no failure this record reveals review you at enable to arrive a verdict?” One adversаry process. the juror responded negatively; the balance of Jury of Deadlocked D. Coercion jury question the answered affirmative- Into a Verdict ly. jury The court instructed to contin- and repeated parts ue its deliberations charged following the guilt jury The charge, including its earlier the statement May on 1984 at 11:45 phase of the trial verdict, if they were unable to reach a p.m. a.m.; until 7:45 when they deliberated petitioner sentence to court would night court recessed for the at the the trial imprisonment.5 life Thirty minutes later jury The its jury’s request. resumed delib- jury returned its verdict. a.m., day next 10:05 erations the at and at guilty its verdicts 3:05 returned with judge enjoy The trial must wide p.m. determining discretion in when to declare a grounds jury. mistrial on of a deadlocked sentencing hearing, according to Blackburn, Monroe v. Cannella, Judge commenced three hours (5th Cir.1984). To amount to a constitu later, p.m., at 6:05 and concluded 8:17 at deprivation, judge’s tional the trial action Following sentencing p.m. hearing, must constitute coercion that denies the p.m., until 11:55 jury deliberated Bryan fundamentally accused a fair trial. time the trial court recessed for the which Wainwright, Cir. night jury’s request. jury at the re- 1975). 16, 1984, day, May the next convened 9:40 a.m. Two hours later defense counsel Our review of this record leads us arguing moved for a mistrial agree with the district court that there is time, hours, elapsed deliberation five and coercion; showing no the record certain Judge last instruction Cannella at does ly not demonstrate coercion sufficient guilt phase, justified fundamentally to render the trial Ap- mistrial.4 unfair. later, proximately three jury hours counsel The deliberated thirteen hours before reurged reaching phase their motion. While counsel were guilt a verdict mistrial, arguing their motion reaching for nine and one-half hours before judge phase. jury penalty received a note from the verdict Petitioner indicat- supplemental 4. The provided: impose instruction Imprisonment the sentence Life Probation, Parole, or Sus- without benefit say Let me how much I know effort pension of Sentence. you’ve put already. you into the case I know you your jury When enter the room it is put a lot of effort deliberation into you put and I duty to consult with one another to consider appreciate the effort in. each other’s views and to discuss the evidencе you request note certain items. I In this objective reaching just with the verdict if requested. give you cannot the evidence that you can do so without violence to that individ- give legal why you I cannot There are reasons judgment. ual rely your You must on memo- the evidence. evidence, you your- must Each of decide the case what on what the evidence ries you you you only impartial when self but after discussion and saw and heard your The fact items cannot court. that certain of the consideration case with fellow you given you should not hold jurors. [sic] law You are not advocates for one side or against or the either state defendant your the other. Do not hesitate to reexamine this case. change you your opinion own and to if views you give you wrong I are are do sur- I’ve told now that cannot convinced but Since you go you weight I back your items order these honest belief to the render and arrive at a room and deliberate solely opin- effect of evidence because verdict. jurors your ion of fellow or for the mere transcript at 2299. Trial returning purpose of a verdict. please Ladies and Gentlemen retire to the jury: 5. The Court instructed the jury room. Gentlemen, you Ladies and as I instructed transcript Trial at 2350-51. jury unanimously if the to earlier is unable agree on a recommendation Court shall the challenge in- supplemental not either very does dence was close” and there was a gave jury, struction the court the and we possibility” “reasonable that the defendant nothing see about those instructions that have incompetent been found to can characterized coercive. The trial trial if state required stand the to deprive petitioner did of court a funda- proof. the of carry burden Id. at 1246. mentally by allowing the to fair trial Lowenfield on Bilyew’s relies statement guilt on for thirteen hours the deliberate that “the Fourteenth requires Amendment phase and nine and one-half hours on the prosecution or State federal to shoulder phase. This has penalty claim no merit. proving the burden of that the defendant is fit to stand trial of once issue unfitness Improperly Louisiana Shifted the E. properly has been raised.” Id. at 1244. to Petitioner to his Burden Prove rule, No circuit court has followed this and Competence, Improрerly Relieved the we it refuse follow for several reasons. of its Burden to Prove State Petition- First, Bilyew’s conclusion that a state may Competency Improperly and Re- er’s place not constitutionally the burden of Psychiatrist Appoint fused to proving incompetency on the defendant Presenting Insanity Assist an De- merely opinion echoes the of the Illinois fense at Trial. Supreme Court. argues next Lowenfield that he was that, Second, declaring both state and impermissibly required carry the burden prosecutors required federal are to shoul proof incompetent of that he was to stand der burden proving competency, of presumes trial. Louisiana law the defend sanity. Bilyew requirements ant’s believe La.R.S. confused the 15:432. The de imposed upon prosecutors by federal proving by fendant carries the burden of feder preponderance clear al ordinarily evidence that as statute the latitude ac legislatures result a mental disease defect he corded state under state law to capacity pro lacks the to understand placement decide of the burden of ceedings against him or to assist in his proof. question There is no that in federal Art. defense. La.C.Cr.P. v. State prosecutions, government bears the Machon, (La.1982). So.2d Lowen of proving burden compe defendant’s argues statutory field that this scheme vio preponderance tence to stand trial process lates due clause the four the evidence. 18 U.S.C. 4241. See Unit § disagree. teenth amendment. We DiGilio, (3d ed States Cir.1976), denied, cert 429 U.S. principally Lowenfield relies on 749; 50 L.Ed.2d United States v. Franzen, Bilyew United States rel. ex Makris, Cir.1976), (7th Cir.1982). 686 F.2d 1238 Bilyew in denied, cert. a state volved murder conviction under an Nevertheless, Bilyew L.Ed.2d 803. cites placed Illinois statute that the burden on proposition and DiGilio Mafcris prove incompetency the defendant to prosecutors that state bear likewise trial. at 1238. stand Id. The Illinois Su of proving burden competency. Both Di preme upheld Court despite conviction Gilio and Mafcris were decided under the intervening its own decision that the stat determining federal criminal statute for apportionment ute’s proof burden however, competency, they have no was unconstitutional. Id. at 1244. The applicability to the state’s to deter latitude district court denied the peti defendant’s proof orderly mine burdens an fash corpus tion for habeas held why ion. We see no reason Louisiana misallocating error proof the burden of prohibited placing should be bur regardless was' harmless of whether the den proving incompetency on the statute defend unconstitutional. Id. at 1244. merely Congress ant chose Seventh Circuit reversed and because held that misallocating place government error of the burden of that burden proof was not harmless prosecutions. because “the evi- federal any of mental disease than the existence Bilyew

Third, was correct if even prohibits the allo defect. process due federal that the defend proof to the burden cation of psychiatrist assist in Any right to a in the issue, the determination on this ant the defense became presentation of Notably, error. is harmless

instant case voluntarily petitioner withdrew moot after presump relied on never trial court only insanity defense. The issue his compe was finding Lowenfield tion petitioner in the whether was trial became Furthermore, the evi trial. to stand tent Orleans, Louisiana on the vicinity of New deter supports the court’s strongly dencе and not he suf- of the crime whether date competent to was that Lowenfield mination deficiencies. The dis- from mental fered prob trial, no reasonable there is and stand correctly rejected petitioner’s court trict proof burden a different ability that predicated relief on these for habeas claims The test a difference. have made grounds. by long established has been competency contends that counsel had Petitioner also defend as whether Supreme Court present psychiatric testi- opportunity no con ability to present “has sufficient ant sentencing hearing mony in the because de lawyer his with reasonable sult with recess after only allowed a short the court understanding rational gree —and guilty verdict was rendered and before factual as well as he has a rational whether sentencing hearing began. As dis- against proceedings understanding of the earlier, and counsel cussed Lowenfield States, Dusky v. United him.” present decision not to made a considered 788, 788, 4 L.Ed.2d 824 testimony petitioner did not psychiatric and com- of Lowenfield’s (1960). The evidence court for a further recess ask the trial Dusky both trial satisfies petence to stand psychiatric to obtain testimo- within which Louisiana law similar test under and the no merit. argument This also has ny. Bennett, 345 So.2d State announced (La.1977). Lowenfield exhibited Arbitrary Factors Introduced at the F. by important decisions ability to make his Sentencing Hearing in Violation of insanity defense rejecting the use of the Eighth Amend- and Fourteenth reflects manner.6 The record a reasoned ments during the also took notes that Lowenfield argues that the Petitioner first his trial trial in order to assist course of the filed of a bill of information names and ad- admission He also furnished counsel. after Ms. Thomas’ than a month in Florida. Most more of alibi witnesses dresses charging petitioner on the making of the doctors with ha importantly, none arbitrary factor rassing phone calls is an a mental dis- sanity commission identified requires issuance of the writ. The bill could form the basis ease or defect which offered the state to psychia- of information was finding incompetency. The of a aggravat presence of the second sanity show the on the three commissions were trists one of the ing circumstance: victims opinion that Lowenfield unanimous their trial, prosecution against sole a witness competent to stand with the Supreme Louisiana Court petitioner. The exception of Dr. Richaux whose determina- state failed to establish associated held that the problems on the tion was based of in aggravating factor because the bill attorneys Lowenfield’s belief that time of him, pending not at the against rather formation was conspiracy in a knowledge my had no mental I never best 6. The defendant testified: up my to this whole entire life illness in my plead guilty for not reason ... I problems. I do not have mental guilty moment pleading that I wasn’t in the State not is 30, 1982, plea August be- August him to withdraw of Louisiana in ... And I advised crime____ telling plain- day telling, you're of a I court I was accused cause its plead guilty reason of insanity. wished not look- ly plead You’re reasonable out____ telling insanity insanity because reason ing way for a something person court that this did transcript Trial at 851-52. something. responsible And to wasn’t Change G. The of Venue Ms. Thomas’ murder. Louisiana Su preme also that the trial Court determined argues Petitioner the that trial admitting court erred in this bill of infor court in denying erred his motion a “[gjiven that mation but concluded the change predicated argu in venue two on of overwhelming enormity defendant’s pretrial publicity ments: the and close crime, working victim, it is the additional the relationship inconceivable evi between Thomas, Sheila judges and of the court in was charged dence that the defendant with petitioner which was tried. making harassing phone calls could have prejudiced defendant.” State v. Lowen evidentiary hearing The conducted the (La.1985). 1245, field, 495 1258 In So.2d fully supports district court the district proportions, finding Judge order to rise to constitutional a court’s that judge, the trial Canella, personally acquainted was not evidentiary violation of state rules must be family with Sheila Thomas or her and be- magnitude such of a that it constitutes a came apparently aware that she had escort- denial fundamental Cronnon fairness. prisoners ed only to his courtroom after the 246, Alabama, (5th Cir.), 587 250 v. F.2d proceedings begun. in this case had 974, denied, 1542, 440 99 cert. U.S. S.Ct. 59 Ms. twenty Thomas was one of fifteen or (1974). L.Ed.2d 792 the in Given relative deputies transported prisoners who to all significance item evidence the fifteen divisions of 24th the Judicial Dis- this, prosecution of a сrime as heinous as death, Judge trict Court. After her Canel- agree Supreme with the Louisiana having la recalled Ms. seen Thomas prejudicial; Court that it was not its admis courtroom did speaking but not recall ever certainly sion does not rise to the of a level The supported her. evidence also denial of fundamental fairness. finding relationship Judge that the between evidentiary Collins, second point Judge Petitioner’s is Canella and who did know family, victim and complains pre- also Petitioner her would not meritless. Judge impartially trying vent Canella from introduction, during sentencing hear- petitioner’s only Judge case. The contact ing, of evidence of his conviction ‍‌​​​‌​‌​​​‌​‌‌​​‌​‌​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​‌‌‌​‌​‌​‍of at- Judge Canella had with Collins about this tempted rape complains in Canada. He hearings case was on the one of eve of showing that no was made that the defend- petitioner’s venue; on change motion for ant afforded all of constitutional Judge Judge Canella asked Collins about protection in the Canadian case to which procedure handling he followed in would otherwise be entitled under United similar motion. This limited contact in- States, States law. Lеwis v. 445 United Judge impartiali- sufficient to call Canella’s 915, 55, 57, 916, U.S. 100 S.Ct. 63 L.Ed.2d ty question. into (1980). But, 198 this is not the standard agree We also with the district court that applies sentencing hearing petitioner opportuni- had has a full and fair capital case. ty to prejudice pretrial pub- establish licity. Dowd, 717, Irvin v. 366 U.S. 81 In Mattheson v. 714 Maggio, 1639, (1961). 6 L.Ed.2d 751 (5th Cir.1983), F.2d 365 we made it petitioner clear that a habeas bur has the transcript voir dire examina- den of proving that convictions used occupies tion pages; several hundred coun- sentencing hearing state to illustrate given sel were in conducting wide latitude petitioner’s propensities jurors selected, character their examination. Of the only having four A recalled heard about constitutionally defective. trial court all They they case. could verified sit has sentencing broad discretion in the impartial juror as a fair petitioner’s phase of a capital permit case to case. receive relevant information that will assist predicting them in the future behavior of support record this case does not Procunier, the accused. v. 744 See Milton imposition rule announced in Rideau (5th Cir.1984). Louisiana, F.2d 1097 83 S.Ct. photograрhs, Ms. Fau- Lowenfield’s a court (1963), requires L.Ed.2d positively identified Lowenfield as cheux prejudiced jury venire presume from the fare she delivered one block Mayola stated in As we petitioner. against Cir.1980), scene; Low- she also recalled that murder Alabama, an accent. The officer spoke with denied, enfield rt. ce 1986, picture gave Ms. Faucheux a then left and (1981): L.Ed.2d instructions to contact of Lowenfield with holding from this distilled principle The again. police if she saw him subsequently discuss- by courts [Rideau] petitioner where a case is that ing the testified that she was able Ms. Faucheux preju- inflammatory, evidence adduces she looked identify Lowenfield because pervades publicity that so pretrial dicial helped when she him load and at his face community as to render or saturates Additional- packages from the cab. unload by an impossible a fair trial virtually during him the hour ly, she conversed with from that communi- jury drawn impartial frequently looked long ride and as a result presumed and prejudice is ty, good got mirror. She also back “[jury] duty to establish is no further there paid he the fare. look at his face when bias.” argues Petitioner that the аctions case does not publicity this pretrial The showing detective in Ms. Faucheux of the impose the required to approach the level on single photograph of Lowenfield two Rideau rule. unduly suggestive. key occasions was in the no evidence points to Petitioner determining admissibility of factor in of it has disclosed our review whether, record and testimony is under identification the “actual demonstrate circumstances, none that would totality of the the identi pretrial prejudice” was reliable. Manson v. Brath identifiable fication issuance of required 2243, to warrant waite, publicity 98, 97 53 S.Ct. Mayola, Denoe, F.2d 623 (1977); the writ. 388 Stovall 140 L.Ed.2d 1967, 1199 87 18 L.Ed.2d U.S. S.Ct. imperfections of respect to claimed With States, Simmons v. United (1967). In chosen, actually jurors of the several 967, 971, 19 L.Ed.2d court’s reasons fully agree with the district (1968), Supreme Court established arguments and petitioner’s rejecting for eyewitness on iden that “convictions based reasons as our own. adopt those following pretrial identifi tification at aside on by photographs will be set cation Testimony of H. Identification proce if identification ground only the Diane Faucheux suggestive as to impermissibly dure was so arguеs that the identification Lowenfield likelihood of very give rise to substantial by Diane Faucheux testimony cab driver also irreparable misidentification.” suppressed because it have been should Wainwright, F.2d Nettles v. sugges- “unduly made as a result (5th Cir.1982). police. A detective who tactics” tive only suggestive indicia that frequently used cabs knew that Lowenfield identifi Ms. Faucheux’ tends to undermine picture to various cab showed Lowenfield’s showing Faucheux, police act of the drivers, cation is the including Ms. allowing her to Faucheux, solitary picture and her a Company. Ms. Westbank Cab keep copy. But we conclude time, identify failed to Lowenfield at that “very to create Having is not sufficient passengers. failed to alone as one of her irreparable mis identification, likelihood of re- substantial the detective obtain an Simmons, 390 U.S. at logs identification.” the taxi and discovered viewed Ms. Faucheux’ Because of up at 971. picked had a fare at Ms. Faucheux approxi for with Lowenfield apartment day close contact petitioner’s on time she ob during which again mately Ms. an hour The detective asked murders. occasions and closely him on several served recognized if Lowenfield’s Faucheux she accent, distinctive log speak him in his being heard photograph. After shown through ability we conclude that “identification was his to sit the whole trial and However, encompassed reliability.” indicia of be fair-minded. this statement Wainwright, was made in the of concern his Nettles v. context baby; wife new he was worried (5th Cir.1982). This about claim is meritless. leaving them alone. His concern not did issue forthwith. L.Ed.2d 1090 not of execution. al of a federal opinion. tutes a violation on these issues and tional We the violation beyond a reasonable court that all of these claims lack merit. cient for the Jackson to the ishment, (5) tion is a cruel and unusual means sive rights under proof were amendments, (3) the evidence refusal to circumstantial evidence and the burden of (1) In probable made a substantial adopt relevant penalty, 880, 883, conclusion, rights. trial court’s the permit petitioner Lowenfield cause erroneous, (2) capital portion jury of (6) right, (1983). opinion We the sixth and fourteenth 103 S.Ct. stand Barefoot petitioner’s rights the because Lowenfield has of to find punishment agree Ill we DENY a certificate append petitioner’s of the district court cumulative also DENY a doubt, (4) of showing violated The mandate shall also the district court with the district petitioner guilty the trial court’s 3383, 3389, instructions to this to recall argues Estelle, of petitioner’s electrocu an effect Constitu the deni- opinion of stay insuffi consti exces Anita that: pun of Petitioner was satisfied erts’s reservations Petitioner for his cause. apparently an tions. She was not she Transcript, 9 May erts Claim the stand: ror, ity He was not concerns over his relate MS. ROBERTS: Yes. MR. CAPITELLI: MS. ROBERTS: (sic)), agreed looked, point effect the a chance to do later. articulate it in you might happen. the idea of know was Catherine not 8 The to this answer now. concern asked a did you if I’m in your consider Petitioner’s not that he held no felt that she was a her something challenged. ^[*] take the Roberts, Trial Court’s case as could It religious now, I need few thinking may mind concern were it family challenged. ... ^[*] terms more unrelated not ... I’m else. have been the expressed such, stand, I mooted. at 168. Ms. Rob- being up affiliation However, know I not now I’m sure it ^[*] preconceptions. of If it is need to know her. Jury In to ask and once his totally going so Ms. Rob- good juror you addressed, right Petitioner an inabil- Further, Instruc- there, causing (Luter- one you taking event, ques- fair? way' that now the get ju- I Concerning Use tions Circumstan- APPENDIX tial Evidence at the Guilt Phase Excerpts opinion from of United States Trial Court, District Eastern of Louisi- District eighth questions claim Petitioner’s ana, 31, 1987, dated March in Civil Action validity of jury the trial court’s instruction 86-5036, (1). No. Section M concerning on criminal convictions based

[*] Y. ^{[*] [*]} tends circumstantial evidence. Petitioner con- § 15:438, the trial court should have made that pursuant La.Rev.Stat.Ann. Regarding imperfections ju- jury it clear to the conviction based chosen, actually rors read court those on must “exclude circumstantial evidence applicable portions transcripts. every hypothesis reasonable of innocence.” jurors Four of charge had heard about case Petitioner concedes that desired above, this, however, As eventually given; news. discussed asserts alone,'means little, and intervening Petitioner takes it confused the instructions no jurors questioned further. One jury. Pet.Br. at 89-90. Jackson,

beyond a reasonable doubt....” objection that no The State contеnds 443 U.S. at 99 S.Ct. at 2792. Petition and that Petitioner is barred lodged at trial er’s twelfth claim is without merit. However, regardless of the State’s conten- tions, Claim raising the issue before this Court. 8 are without merit. Petitioner’s arguments stressed in The trial court Punishment Claim 14 Electrocution ^{[*] [*]} as a Means ^[*] guilt had to be

instructed Petitioner’s fourteenth claim avers that beyond found a reasonable doubt. cruel and electrocution constitutes gave charge implicit in also La. court punishment unusual violation Moreover, 15:438. review Rev.Stat.Ann. § Amendments of the Eighth and Fourteenth charges, of the record indicates that Pet.Br. at 114. United States Constitution. confusing. entirety, in their taken does not constitute Death electrocution eighth claim is without merit. Petitioner’s punishment. Gregg v. cruel and unusual * * * Georgia, Myles, (1976); State L.Ed.2d 859 11 The Trial Court’s Claim Refusal (La.1980). Petitioner’s fourteenth So.2d Permit Petitioner to Recall Anita Jack- is without merit. claim son to the Stand Capital Punishment as an Ex- Petitioner’s eleventh claim centers on Claim Penalty cessive denying whether the trial court erred in request counsel’s to recall Anita Jackson to Petitioner’s fifteenth claim contends that Petitioner

the stand. contends that said capital punishment penalty. is an excessive denial was in violation of his sixth amend- 15, capital pun- As discussed under Claim rights. ment and fourteenth amendment se, penalty, per is not an excessive ishment 112. Pet.Br. at capital punishment is not an excessive undisputed Pet. is that Ms. was Jackson penalty present within the confines of the surprise not a in the witness case. Peti- case. Petitioner’s fifteenth claim is with- tioner’s counsel knew that Ms. Jackson out merit. testify actually given copies and was Alleged Claim 16 Petitioner’s Cumula- of statements that Petitioner’s counsel tive as a Violations Source Constitu- used to conduct its cross-examination of Infringement tional Ms. Jackson. See Trial Trans. Vol. VIII at argument Petitioner’s final asserts that 1944-1960; Pet.Exh. C. at 53. The trial alleged the cumulative effect of the in- request court’s denial of counsel’s did not fringements are violative his constitu- abridge rights. Petitioner’s constitutional rights. tional The Court has found that Petitioner’s eleventh claim is without merit. arguments put forth in each of Peti- Sufficiency Claim 12 The the Evi- not, tioner’s first fifteen claims indepen- do dence Proving Petitioner’s Be- Guilt for dently, mount a challenge by constitutional

yond a Reasonable Doubt which this Court could set aside his convic- Petitioner’s twelfth claim contends that tion or sentence. This Court also finds since his conviction was based on circum allegations the collective do not evidence, stantial there exists a “real and present abridgment a constitutional war- concerning substantial guilt. doubt” ranting by action this Court. Petitioner’s Virginia, Jackson v. Following 443 U.S. sixteenth claim is without merit. 2781, (1979), 99 61 L.Ed.2d 560 Supreme the Louisiana rejected Court this JOHNSON, Judge, dissenting: Circuit same contention in the course of its careful supplemental Allen charge urging review. See Pet.Br.Exh. C. at 54-56. The jury review Bras- Supreme Louisiana to reach a verdict and the Court comported guidelines inquiry jury’s with the set into the forth numerical divi- field Jackson. Further, place sentencing record contains sion have no in the phase a sufficient basis for “a penalty jury rational factfinder of a death A case. consider- petitioner ing impose quilty ... have fou^d the whether to or death sen- [to] life

300 interpret likely totality tence is to these actions of the circumstances test.8 The judge suggestion to as a command “potential present for coercion is in even great choose death. With deference to the instructions,”9 supрlemental the most mild opinion I majority, respect- therefore charge wholly and an Allen unobjectiona- fully dissent. may ble its content coer- nonetheless be light cive in circumstances under A. given.10 although it Finally, which was charge, deriving The Allen its name grant corpus should not habeas relief to a States, from Allen v. United merely state defendant because the state (1896), 17 S.Ct. 41 528 L.Ed. refers ap- trial court made minor deviations “supplemental urging jury instructions proved charges,11 may Allen the defendant forego their and come differences corpus proceedings show federal habeas charge, of unanimous decision.”1 so charge unconstitutionally that the co- tendencies,2 ten criticized for its coercive 12 totality ercive under the circum- ‍‌​​​‌​‌​​​‌​‌‌​​‌​‌​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​‌‌‌​‌​‌​‍3 per has been upheld se unconstitu stances.13 tional in the usual criminal case.4 Never judge inquiry Trial into the numerical theless, appellate court must scrutin division of is jury similarly coercive. In charge ize for compliance an Allen States, United “(1) requirements”: “two the semantic de Brasfield 449-50, 135, 135-36, L.Ed. approved charges viation from ‘Allen’ can (1926), Supreme Court condemned prejudicial not be so to the defendant as practice ground as a (2) reversal. In Bras require reversal, and the circumstances condemned, field, practice surrounding even giving approved an ‘Al though charge len’ had not must not coercive.”6 revealed “which We proceed a case case basis7 under a number favored conviction.” A Bras- 4. Bottom, J., Bailey, 1. United States (Goldberg, 786 n. F.2d at con- (5th Cir.1981); Taylor, curring part dissenting part). see also United States v. (5th Cir.1976) (“The 530 F.2d 51 n. 5 term Blevinal, Charge’ commonly 5. 'Allen used to refer charges given supplemental juries to deadlocked 787; Bottom, 6. F.2d at see encouraging 638 also United States jurors posi- to reconsider their 325, Cheramie, (5th Cir.1975). v. tion"). 520 F.2d 328 7. United Kimmel, 290, v. States 777 F.2d 294 1124, Blevinal, E.g., 2. United 607 States v. F.2d _ _, (5th Cir.1985), denied, cert. 106 U.S. (5th (Godbold, J., Cir.1979) dissenting), 1128-29 1947, (1986). 90 L.Ed.2d 357 denied, 928, 1315, cert. 445 U.S. 100 S.Ct. 63 (1980); Amaya, L.Ed.2d 761 United States v. 509 Fossler, 478, 8. v. United States 597 F.2d 484-85 8, (5th Cir.1975), denied, F.2d 12-13 cert. 429 (5th Cir.1979). 1101, 1125, (1977); 97 S.Ct. 51 L.Ed.2d 551 1347, (5th Vigo, United States v. 435 F.2d 1350 Blevinal, 9. at 607 F.2d 1126. denied, Cir.1970), 908, cert. 403 U.S. 91 S.Ct. 2214, (1971); Thaggard 29 L.Ed.2d 684 v. United 10. 483-85; Fossler, F.2d at States v. 597 United States, 735, (5th Cir.1965) 354 739-41 F.2d Williams, 894, (5th Cir.1971). 447 F.2d 899-900 (Coleman, J., denied, concurring), cert. 383 U.S. 958, 1222, (1966); 86 S.Ct. 16 L.Ed.2d 301 Walk Cheramie, 11. F.2d 520 at 330 n. 6. 22, States, Cir.) (5th er v. F.2d United 27-29 (Brown, J., denied, dissenting), cert. 382 U.S. 644, (5th Bryan Wainwright, 859, 117, (1965); 86 S.Ct. 15 L.Ed.2d 97 Green denied, 63, Cir.), 837, cert. 423 U.S. 96 S.Ct. States, 852, (5th United 309 F.2d 854-56 Cir. (1975). L.Ed.2d 55 1962); States, 127, Andrews v. United 309 F.2d (5th (Wisdom, J., Cir.1962) dissenting), 129-30 opinion suggests majority 13. The that Lowen- denied, cert. 372 U.S. 83 S.Ct. 9 L.Ed.2d challenged charge. field has not the Allen Su- (1963); States, v. United 297 F.2d Huffman prа Though explicitly at 293-94. he has not chal- (5th (Brown, J., Cir.) dissenting), 755-59 lenged wording charge, the the Allen Lowen- denied, cert. field does contend that the circumstances (1962). L.Ed.2d 820 including sentencing, the fact Allen that an charge given, jury show the Bailey, 3. United States v. coerced. Petitioner’s Memorandum of Law Cir.1973) (en banc). 29-33. especially conjunction ning, jury complained the inquiry, it was hun- field De charge, requires reversal.14 gry already an Allen and tired and that it had come sparked elsewhere over the bate has been up day.20 Only with one verdict that then inquiry the question whether judge night. did the trial recess for the Brasfield ground for relief in a federal alone is a 16, 1984, a.m., day, May The next at 9:40 corpus proceeding.15 very At the habeas jury deliberating. the continued It contin- least, however, presence of a Brasfield ued its deliberations for more than five to show unconstitutional inquiry tends telling judge, hours before the trial in a totality of the circums coercion under note, agree upon that it was unable to tances.16 recommendation. sentencing charge In his initial to the B. that, jury, judge explained had upon jury” The a divided of an “effect accordance with article 905.8 of the Louisi- сharge inquiry or “will Allen Brasfield Procedure, ana Code of Criminal if “the depend upon often circumstances which jury unanimously agree unable on a properly judge cannot be known to the trial recommendation, impose the court shall appellate courts.”17 We or to cannot imprisonment sentence of life without ben- deliberations; during room jury enter probation, parole suspension efit of we cannot see into the mind of the deliber- Nevertheless, upon sentence.”21 jury’s Thus, juror. ating when we examine a representation of deadlock its note to the judge case and test it for trial coercion judge, judge the trial for the first time jury totality under the circum- proce- declined to invoke the article 905.8 stances, we must resort to in- reasonable Instead, judge jury dure. had the supposition.18 re- ference and turn to the courtroom and instructed it case, present jury In the deliberated again procedure. on the article 905.8 The guilt-innocence some thirteen hours in the judge jury then asked the “if further delib- phase. jury began deliberating in the helpful obtaining erations would be 14,1984. guilt-innocence phase May on Af- judge verdict.” Thе determined that four 15, 1984, May ter further deliberations on jurors felt further deliberations would not jury p.m. reached its 3:05 verdict at helpful; eight jurors stated that further phase day, trial. That same helpful. deliberations would be For the 15, 1984, May p.m., at 6:05 over defense time, judge accept second declined to objection,19 judge began counsel the trial apply the deadlock and the article 905.8 sentencing phase of trial. He conduct- procedure. then, judge purporting sentencing hearing, ed the instructed the rephrase question, jury sentencing, determined ask and directed the asked, begin deliberating question again. the question on the of same He “Do life or began p.m. you death. feel Deliberations at 8:17 that further deliberations will deliberating p.m. you After until 11:55 that eve- enable to arrive at a verdict?” This 14. 18. 192, 193-94 Cheramie, 331-32; Chanya, Amaya, United States v. 700 F.2d 520 F.2d at Cir.1983), (5th denied, 943, 12-13; Williams, rt. 466 U.S. 104 F.2d at 447 509 F.2d 900. ce 1925, Cheramie, (1984); S.Ct. 80 471 L.Ed.2d 8; Hayes, 520 F.2d at 331 n. United States v. 19. ‘1 twenty-four request forty-eight to hour 309, (5th Cir.1971); F.2d States, Cook v. United cool, give delay purposes for to them time to the 871, (5th Cir.1958). F.2d 873-75 jury prepa- to cool from the verdict and also in ration." 15. Reed, 1195, Compare, e.g., Ellis v. (4th Cir.), denied, cert. Honor, happening, Your 20. “I think what’s is (1979), 62 L.Ed.2d 388 with id. at J., jury (Winter, up the is tired. We’ve come with one dissenting). 1201-02 by verdict. We haven’t eaten since noon our 16. Ellis, 1200; Norvell, 596 F.2d at Jones v. group getting quite own choice and the is tired." denied, Cir.), 1185-86 cert. (1973). 36 L.Ed.2d 964 21. La.Code Crim.Proc.Ann. (West art. 905.8 1984). Brasfield, 272 U.S. at 47 S.Ct. at 135-36.

time, yes; ju- Then, jurors quick eleven answered one to succession his first ror, however, polling, judge, purporting persisted saying fur- the while to re- that phrase question, effectively rejected the helpful. not be ther deliberations would jurors’ responses polling the to the first by time, judge third to For the declined the posing question. same posi- the With their Instead, gave the the accept deadlock. question exposed, tion on the ultimate the charge, urging jurors the reex- “to Allen might jurors four well have understood the your change and your amine own views question polling second on the same as a you you if are opinion are convinced signal judge the from that he favored the reaching a wrong” objective “with the of penalty. death The result of the second verdict,” just and directed further delibera- predictable: polling Four dissenters minutes, thirty re- jury tions. Within the By had been whittled down one. then recommending a verdict death. turned deadlock, judge rejecting аgain sig- sequence gives This of events rise to clarity inescapable nalled with to the one inference of strong coercion the sentenc- remaining juror hold-out the bench Taking guilt-inno- ing phase of trial. penalty. point, favored the death At this sentencing phases together, the cence and judge urged jurors to return a jury meaningful had deliberated without thirty verdict. unanimous Within min- approximately twenty-two break utes,23 they complied. the jury hours.22 When first indi- more The of conjunction inquiry the Brasfield deadlock, judge the trial cated its declined charge especially and an Allen is con- imprisonment life under impose article demned because 905.8, judge had which the stated would impact even the coercive a modest jurors in the event of apply deadlock. charge heightened preced is when Allen dissenting from the recommendation any inquiry jury’s by ed as to the numeri might death well have understood that done, cal When is im division. judge penalty. favored the pression conveyed is inherently to the understanding judge then reinforced this jury that the revelation their division by polling and delivering twice prompted giving subsequent charge. Allen verdict-urging is, instruction that it therefore, jurors minority Four were isolated the first directed toward being opposed jurors.[24] polling further deliber- sure, asked, judge To be ations. had effect, judge practical thereby In a trial directly jury’s about the numerical divi- minority jurors, especially tells when their death, question life sion on versus position judge, known to the is abandon helpfulness its division but about over position. That here: occurred first to Nevertheless, deliberations. it further dissenting jurors the four then a sec- ju- to conclude that the four reasonable dissenting juror. ond the last time to op- opposing rors further deliberations also C. death; posed the recommendation those who jurors produce would a deadlock case, ordinary this an criminal Were opposing further deliberations knew practices above coercive outlined judge what the trial told them perhaps constitutionally permissible. had about not, however, ordinary article 905.8 that a would result deadlock This is an case. imprisonment. Clearly, life these four Here a has been condemned death. man logic apparent “qualitative knew that same to Because ‍‌​​​‌​‌​​​‌​‌‌​​‌​‌​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​‌‌‌​‌​‌​‍of the difference” be- judge. рunishments, and all tween death other 1044, Kimmel, Iowa, (8th (length 22. v. 628 F.2d 1048 n. 2 777 F.2d at 295 of delib- 24. Cornell factor). 1126, denied, Cir.1980), as erations cert. 449 U.S. 101 S.Ct. 944, (1981); 112 see also United 67 L.Ed.2d Fossler, (shortness 23. See 597 F.2d 485 of time 530, Sae-Chua, 531-32 States v. delivery charge rendering from of Allen Cir.1984). factor). as verdict

303 so, I majority declines to do in the Because corresponding difference is a “there must dissent. reliability in the determination need for punishment in appropriate is the

that death Consequently, the Su- specific case.”25 “ procedures ‘has condemned

preme Court might completely capital cases ”26 ordinary case.’ in an acceptable the need for extreme relia

In addition to cases, capital capital sentenc bility in JEFFERSON, Dwight and Karen on their to coer peculiarly vulnerable ing jury is mi- own Behalf and Behalf of their effective, cion, the bench. intended Jefferson, daughter, Plain- nor Jardine case, jurors apply In usual criminal tiffs-Appellees, legal supplied norms common contrast, By court’s instructions. v. and consid mitigating evidence breadth INDEPENDENT SCHOOL YSLETA sentencing capital jur available to erations DISTRICT, Defendant, 27 to make theirs especially contributes ors “unique, individual “‘highly subjective, Cynthia Mr. Dick and Ms. Gore Good- regarding punishment judgment ized man, Defendants-Appellants. ’ ”28 person deserves.” particular No. 86-1097. case, capital in the usual sen jurors Unlike necessarily apply the tencing do not jurors Appeals, United States Court of mitigating Under evidence. same norms Fifth Circuit. circumstances, may readily deadlock these 20, May 1987. no available means persist result resolution —unless coercion. far society have too As a evolved jurors

permit such coercion the critical need for

penalty cases. Given capital par- as well as the

caution in cases sentencing vulnerability capital

ticular inherently coercive Allen and

jurors, implemented the sen- practices

Brasfield tencing trial must be phase of Lowenfield’s constitutionally repugnant.29

condemned 89, Carolina, 280, single aggravating valid circumstance v. North 428 U.S. 25. Woodson 2991, 305, 2978, (1976) supporting sentence had been Lowenfield’s 49 L.Ed.2d 944 96 S.Ct. Stevens, guilt-innocence phase Stewart, Powell, JJ.) (foot trial. found at the (opinion of only sentencing, mitigating there remained omitted). At note evidence to consider. 668, 705, Washington, v. 466 U.S. 26. Strickland _ _, Murray, v. U.S. 106 S.Ct. 28. Turner 2052, 2073, (1984) L.Ed.2d 674 104 S.Ct. 1687, 1683, (1986) (opinion 90 L.Ed.2d 27 J., (Brennan, dissenting concurring part O’Connor, White, Blackmun, Stevens, JJ.) (quot Estelle, part) (quoting 463 U.S. Barefoot ing Mississippi, U.S. Caldwell v. 3383, 3405, 880, 913, 77 L.Ed.2d 1090 103 S.Ct. (1985) 2645 n. 86 L.Ed.2d 231 S.Ct. J., (1983) (Marshall, dissenting)). 862, 900, 103 (quoting Stephens, Zant v. 2733, 2755, (1983) (Rehn 77 L.Ed.2d 235 _ _, Dugger, U.S. 107 S.Ct. Hitchcock v. J., quist, concurring judgment))). 1821, 1822-24, (1987); Skipper v. 95 L.Ed.2d 347 _ _, Carolina, 106 S.Ct. South State, (Del. A.2d 448-54 29. See Rush v. 1670-71, (1986); see La.Code Crim. L-Ed.2d 975, 975, ‍‌​​​‌​‌​​​‌​‌‌​​‌​‌​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​‌‌‌​‌​‌​‍State, 1985); 467 So.2d 979- Patten v. 905.5(h) (West 1984). _ art. Proc.Ann. U.S. _, denied, (Fla.), cert. State, (1985); 88 L.Ed.2d 167 Rose denied, (Fla.1982), particularly present in the case. So.2d 524-25 cert. This was so (1983). opinion explains majority supra 76 L.Ed.2d As the at 288-

Case Details

Case Name: Leslie Lowenfield v. C. Paul Phelps, Secretary of the Department of Corrections, State of Louisiana

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 22, 1987

Citation: 817 F.2d 285

Docket Number: 87-3305

Court Abbreviation: 5th Cir.