*2 TJOFLAT, Before VANCE and CLARK, Judges. Circuit TJOFLAT, Judge: Circuit I.
The
in this
Michael Gene
Berryhill,
Georgia
a
row inmate.
death
1975,
Georgia
County,
In
a
in Bartow
charges
felony
him
murder
convicted
on
robbery.
armed
At
the conclusion of
sentencing hearing,
petitioner’s
re
imposing
penal
turned a verdict
the death
Georgia
ty.
Supreme
The
Court of
af
on di
firmed
conviction
sentence
State,
appeal. Berryhill
235 Ga.
rect
v.
549,
(1975),
denied,
1. constitutionally requested custody, infirm under Miranda counsel. trial was after he had Arizona, (1966), intro- because the state had L.Ed.2d 694 (5th Cir.1981). Berryhill, 640 F.2d Zant v. by petitioner which at trial statements duced and, again, petitioner amendment once because misconduct then reconvened penalty. the death prosecutor part received and bias on the of the trial Georgia the conviction affirmed Court judge fundamentally rendered his trial un- appeal. Berryhill and sentence on direct equal fair. His sixth claim is based on the *3 State, cert. 442, 685, 291 249 Ga. S.E.2d protection clause of the fourteenth amend- denied, 459 U.S. argues ment: he that his conviction must (1982). As he had done after L.Ed.2d 293 overturned underrepresen- be because the affirmed on direct his 1975 conviction was tation women on jury the master list appeal, petitioner petition filed a for a writ was the result of intentional discrimination corpus Superior habeas Court against women. His seventh claim is that relief, County. Butts The court denied and he denied was effective assistance of coun- Georgia peti Supreme Court of denied sel, right in violation of the to counsel application prob tioner’s for a certificate of guaranteed by the sixth and fourteenth appeal. to The United able cause States eighth amendments. His claim is that he August Court denied certiorari on right, eighth was denied his under the and Francis, Berryhill 1984. 467 U.S. amendments, fourteenth to be free from L.Ed.2d punishment cruel and unusual because the 25, 1985, petitioner August On returned jury returning trial court coerced the into petition filed a to federal district court and Finally, death sentence. his ninth claim is corpus. It is this writ habeas right that he was denied his to be free from petition in this Peti- that we consider case. punishment cruel and unusual because the and tioner asserts his conviction properly trial court failed to instruct grounds. are invalid on several sentence could, jury reaching sentencing that it its grounds Four of the he cites are based on verdict, mitigating consider as evidence tes- right, alleged violations of his under the timony concerning petitioner’s mental con- amendments, to sixth and fourteenth an dition. First, impartial jury. he claims he was right jury denied the because his trial Following evidentiary hearing, an which, jury a master list due to drawn from district court determined that the second women, underrepresentation failed to merit, eighth according- and claims had and reflect a fair cross section of the communi- ly directing entered an order the State of Second, ty. he claims he was denied the Georgia grant petitioner to a new trial. right the trial court to because “fail[ed] claims, remaining The court considered the venue, grant change take other [to] concluded that each lacked merit. Re- measures, appropriate such as individual spondent appeals now from the order dire, sequestered voir to ensure that [his] granting relief on the basis of the second verdict and sentence not affected [were] claims, eighth petitioner cross-ap- and feeling against strong community [him].” peals rejection district court’s Third, right he claims he was denied the Because other seven claims. we conclude judge prevented trial his attor- because the entitled to relief on the is ney asking questions from at voir dire claim, of the first we need not ad- basis ascertaining which were essential to of the others. dress the merits impartiality prospective jurors. And fourth, he claims he was denied the trial court refused to strike
because II. from the venire an individual who ex- commitment im- pressed pertinent an irrevocable to of the events to At the time posing penalty. the death superi- Georgia required this law appoint a six- county of each or court remaining grounds petitioner cites commissioners, jury member board of variety other constitutional involve a “compile and maintain duty whose it was violations. His fifth claim that his con- intelligent jury list of and revise a and sentence are invalid under the viction county to serve as upright fourteenth citizens of process due clause of (1979).3 approximately Ann. 3000 names would be needed jurors.” Ga.Code § mandate, fill the be the Bartow to venires would Pursuant this years. over the next In amass- commissioners would called two County board list, year, ing compile every master list other names for commissioners primary the Bartow choosing names used their source a sufficient number of period. County registration roll two-year fill venires for a voter general petitioner’s trial election.5 from which venire the mas- selected was drawn from Bradley testified that the commissioners compiled by ter the Bartow list names in the order in which considered the August board registration appeared on the voter *4 and, roll, in hearing applying district the criteria set out evidentiary At the introduced, 59-106, court, objec- Ann. selected for the without Ga.Code § persons they showing jury that master list considered by respondent, tion evidence “intelligent upright.” Bradley further the list contained the names of master summarily the commissioners persons, whom 1115—or testified that of 39.36%—were introduced, again passed the names of some women. Petitioner also over women. they in in- objection by respondent, population He stated that did so certain without they sufficiently fig- not figures from the 1970 These stances because were census. particular the woman to de- population ures a for Bartow familiar with showed total 32,663. total, 16,753 “intelligent she termine whether was County of Of —or figures upright.” Bradley explained that The females. census 51.29%—were gender makeup of various also the showed to to women that we tried our best stick County. eigh- age in Bartow groups women, knew, professional business we age group comprised teen-and-above our to not—where ... and we tried best 11,092 21,015 persons, of whom list, jury a name was in the unless man’s —or women. professional 52.78%—were a business or his wife was the wife. woman we did select evidence also introduced into Petitioner instances, stated, com- Superior Bradley In other testimony of clerk particular over a wom- County, passed H. missioners Court of Bartow Woodrow one explained procedures the an’s name because she had contacted Bradley, who specifically asked that it of them and had jury commissioners used when board of Bradley they not her name on the list. compiled jury include the master list.4 making Bradley that if a woman he was an ex officio testified testified that clerk young board, request pregnant, a as well as its secre- such of the member children, a direction, employed as a teacher or his met in or was tary. board Under nurse, comply jury would August compile a new master the commissioners request.6 projected list. The the time with board recodified, requests, complying 6.In with these the commis has with minor 3. This section been language, contrary in 15-12-40 of law. a modification section to state Under sioners acted Georgia force, Code. Georgia current "housewifves] then in statute younger” years age or could with children Bradley’s testimony in 4. Petitioner introduced exemption jury service. Ga.Code claim from pro- transcripts from three the form of ceedings. (1979) 1984). 112(b) per (repealed §Ann. 59— prior proceedings were Two of the excused, claiming exception could be son however, hearings prosecu- pretrial petitioner's own "by only judge of the court to proceeding pretrial hear- third was a tion. The by some which been summoned [she] ha[d] which, ing criminal like in an unrelated case by person duly appointed order of other ... challenge alleging involved jurors.” judge excuse Id. The board chief underrepresentation Bartow of women on the grant power such had no commissions August compiled master list 162, 168, State, 239 Barrow v. Ga. excuses. See 1979. (1977); see Robin S.E.2d also Bradley the commissioners used testified that Kimbrough, Cir. son they secondary example, For sources. some 1977) (en banc). high gradua- some school obtained names lists. tion way, After the commissioners had amassed a the defendant is entitled to a trial sufficient number of names to meet the drawn from represen- a source in which the years, they projected need for the next two tation of groups distinctive is “fair and analyzed gender makeup of the list. reasonable” relation representa- to their According Bradley, the commissioners tion in community. Missouri, Duren v. required by law to believed 357, 364, 664, 668, 439 U.S. percentage compile a list that included a L.Ed.2d 579 corresponded degree women that to some defined, therefore, in way percentage of women the coun- with that makes some allowance for the difficul- population percentage ty. Using the ty achieving master list pre- census, shown the 1970 the commission- cisely makeup mirrors the of the communi- percentage ers determined that ty. Common sense tells achieving us that on fell women the list short of the mark. perfect impossibili- cross section is a near deficiency, they To correct the went about ty. Factors outside the state’s control may adding They more women to the list. add- makeup affect the master list. persons ed women until 39.36% Often, for example, some persons (1115 2833) the list out of were women. *5 chosen for the list will die before a new list Bradley testified, quit,” “Then we because compiled, upsetting thus whatever bal- ballpark guidelines “in the that 39.36% original ance the list reflected. Additional- the would Court allow.”7 ly, groups some that are distinct for fair- claim, analyzing petitioner’s In the dis- purposes may cross-section up be made of trict court first identified the Bartow Coun- persons who do not exhibit characteristics ty population (persons age eighteen adult obviously distinguish them from oth- older) community as the relevant for society. ers in Ensuring adequate repre- purposes. fair-cross-section The court sentation of group such a is inherently petitioner found that had established that problematic due to difficulty the of deter- comprised of women that communi- 52.78% mining in large the first instance how a ty. The court further found that women segment community of the comprises. it comprised only persons in- 39.36% Finally, if proce- even the state’s selection jury cluded on the master list. Notwith- drawing dure involves purely names on a standing disparity, this the court concluded random basis from a source which itself is sufficiently represented that “women were up section, made of near-perfect a cross on the list to meet the re- [master] some deviation is inevitable due to chance. quirements of the Sixth Amendment.”
These common sense observations com-
III.
pel the conclusion that what is “fair and
reasonable”
sixth amendment fair-
of a
violation
state criminal de
cross-section sense is a function of the dif-
rights
fendant’s
under the sixth and four
ficulty
achieving perfectly representa-
a
teenth amendments occurs
he
when
is tried
means,
tion master
list. This
by jury
which,
a
drawn from a source
due
course,
given degree
that a
of deviation
to systematic exclusion of a distinctive
perfect representation
respect
with
to
group,
to
fails
reflect a “fair cross section”
little,
particular group
any,
a
has
mean-
community.
Louisiana,
Taylor v.
ing apart
specific
from the
context in which
419 U.S.
permissible case, rely in a case the ne- In petitioner where state this did not presumption, presented on the he direct glected steps.8 such take degree the evidence that demonstrated was, underrepresentation under the circum na These observations about the stances, unfair and unreasonable. Not the ture of fair-cross-section have di evidence, withstanding this the district implications showing kind rect the simply court considered demonstrated make to defendant must establish viola disparity in isolation and concluded it proving a fair-cross- tion. burden to support was insufficient a constitutional falls on the section violation defendant. claim. The court in effect focused on the defendant has established that After whether had made a sufficient group question is “distinctive” for showing underrepresentation invoke purposes, fair-cross-section and presumption ap described above. This systematically excluded from group was proach mistaken. In a case where the source, he then must establish that presented defendant has direct evidence underrepresentation group’s was unfair underrepresentation was unfair Because the state and unreasonable. unreasonable, presumption be necessary usually controls evidence irrelevant.9 In such a the ulti comes legal question mate of whether the under- element, prove this the law accords the last representation was unfair unreason a presumption, benefit of defendant directly able is before district court. showing underrepresen on a based bare Thus, analysis the focus of the court’s tation, operates compel which state dispar should have been the size of relevant to to come forward with evidence isolation, ity viewed in size *6 Duren, 439 generally that element. See weighed against difficulty the of disparity Thus, 363-69, 99 at 668-71. U.S. at S.Ct. achieving a cross section. the the defendant establishes facts once here, Where, a district court as the the give presumption, rise to state that deciding the a mixed misapplied has law why, provide explanation some under must fact, question usually re of law and we circumstances, underrepresentation the the proceedings. the case for further mand group of not unfair and unreason the case, this unnecessary That is however. plausible expla the no able. If state offers dispute group alleged is the There no that nation, on prevails the defendant the is underrepresented a distinctive to be presumption: of on the strength the based purposes; group for fair-cross-section underrepresentation, showing of bare precedent clearly that holds women consti must as a matter of law that the court hold Duren, group. such a 439 U.S. at tute group of was unfair and un exclusion 668; 419 U.S. at Taylor, hand, If, on the other reasonable. dispute There no that at 698. is wom plausible explanation, the does offer a state underrepresented on the en in fact prevail strength not on the defendant will County list. Women Bartow master presumption persuades unless he up population of of made the adult 52.78% per- county,10 only accept explanation. but court not state’s 39.36% community pur question fair-cross-section question of relevant for express 8. is a mixed fact underrepresentation poses. no degree We therefore of is law. The question ruling. United States v. that underrepresen- correctness of of fact. Whether Cf. Cir.1984) Esle, light is fair and reasonable in of tation J., concurring). (Tjoflat, specially question of is a law. circumstances respondent challenged the district Nor has reason, finding up made 52.78% of we no to ad- that women 9. For this have occasion court's finding, community. showing Such a the issue of what bare under- the relevant dress clearly pre- challenged, erroneous. representation stand unless would suffice invoke will sumption 12. in the circumstances of this case. Id. at 1472 n. figure is taken from note the 52.78% We introduced into Petitioner also Respondent challenged the the 1970 census. has not district figures cen- (persons population from the 1980 ruling population that the adult evidence court’s older) figures that in women eighteen show age sus. These of Bartow is words, Bradley’s jury list. There is also own the commissioners on the master sons dispute underrepresentation this representation no believed of women on exclusion; systematic re- was the result ballpark the order of “was 39.36% spondent dispute that the method does guidelines that the Court would produc- the commissioners used of selection explanation inadequate allow.” is This as underrepresentation. ed the demonstrated a matter of law. A defendant’s to a remaining in only question this case evaporate fair cross section does not mere- underrep- legal question of whether the ly selecting because those the master petitioner demonstrated is un- resentation operated misguided list under notions of unreasonable, in violation of the fair and constitutional law. The focus of our in- requirement. fair-cross-section state, quiry is not the bona fides but Petitioner’s direct evidence established representation was, whether women County jury that the Bartow commission- circumstances, under the objectively fair law, ers, Georgia acting pursuant used a and reasonable. Given the relative ease highly method to construct the subjective underrepresentation with which the could master list. That method involved have been corrected in this simply we including only on the list the names representation cannot conclude that the persons those the commissioners con- women on the master list was fair and upright.” “intelligent sidered Petition- reasonable. Petitioner has therefore estab- that the er’s evidence further established lished a violation of the sixth amendment’s their method commissioners realized requirement. fair-cross-section significant underrepresen- resulted AFFIRMED. women, tation of then added more point only women to the list to a substan-
tially representation. short of full CLARK, Judge, specially Circuit
Certainly, a selection method such
concurring.
County jury
that used
the Bartow
com-
' I concur that the one issue discussed in
incapable
producing
is not
missioners
majority opinion correctly disposes
Fouche,
constitutional result.
Turner
However,
the case.
I believe that affirm-
*7
tion of women was under the cir shown, prejudice voir dire must be ade essentials, cumstances. Reduced its re quate prejudice). I spondent’s argument potential to unearth is that the com good missioners held would affirm the district court on this faith belief that ground had achieved a fair cross section. In as well. comprised County population. the Bartow 53.10% of adult he ing he could not be sure that Publicity
The
opinion
peti-
could
aside his
that the
set
Berryhill’s
publicity
Widespread
attended
guilty.
prospec-
The
tioner was
second
Berryhill’s subsequent appeals
trial.
first
juror
knew
tive
who indicated that he
reported
reindictment were
and
prior
had
a detective
about
been
County,
Berryhill
press in Bartow
where
De-
with the Bartow
Sheriff’s
Cartersville,
tried,
where the
and
was
of the first trial.
partment at the time
place. A
murder had taken
burglary and
opinion
had formed an
He stated that he
trial,
Berryhill’s second
month before
time,
he could set it
at that
but that
Berryhill
court which
was
clerk
prospective juror who
aside. The third
newspaper in
column for a
tried wrote a
prior
knew
indicated that he
about
favorably
on a
he
commented
case
which
was
trial was also excused. He
excused
Bean,
Roy
eliciting a
Judge
after
which
stating
he would believe the
after
plea
a Mexican defendant who
guilty
petitioner
guilty
was
until
defense
speak English, had
defendant
did
proved otherwise and after acknowl-
hung.
immediately
edging
in the
first
his faith
by the
public opinion poll conducted
prospective
tried the case. The fourth
University Georgia
School of Journalism
he had knowl-
juror who indicated that
(with
plus
margin of error of
or
showed
excused,
prior
edge of the
trial was not
6%)
of those interviewed
minus
that 80%
although
place
he seemed to
the burden
very
familiar
familiar
somewhat
proof
stated
petitioner
on the
when he
with the
Of those familiar
with
case.
had an
that “could be
that he
Berryhill
previously
knew
99%
proved
changed by a witness
it was
knew he had
guilty
found
and
been
81%
Transcript
Trial
at 185.
court.”
Furthermore,
penalty.
the death
received
prospective juror who indicated
sixth
Berryhill
either defi-
stated that
was
78%
prior
knowledge of the
trial mentioned
probably guilty, and
nitely guilty or
94%
“acceptance”
jury’s
the first
ver-
his
thought Berryhill
most of their friends
said
dict,
juror
the seventh
who indicated
Finally,
thought Berryhill
guilty.
62%
suggested
knowledge of the
penalty.1
the death
should receive
among his
there was sentiment
friends
retrial was
Dire
Voir
technicality.
because of
Berryhill’s motion
The trial court denied
strong
pervasive
Evidence of a
denied
change
of venue.
It also
community sentiment that the
sequestered
motion for a
voir
Berryhill’s
guilty
continued
surface
dire to be con-
the voir
dire and allowed
*8
testimony
subsequent pro-
voir dire
in
of all the
presence
prospec-
ducted
light
spective jurors.
In
of this evidence
ques-
court itself
jurors.
tive
community
publicity
prejudice,
jurors,
tioned some
and refused
allow
trial,
petitioner’s first
that surrounded
questions.
Berryhill’s
certain
counsel
ask
apparent feeling among some
and the
The district court found:
mere
petitioner’s
that the
retrial was a
possibility
prejudice
A substantial
that there ex-
formality,
Court finds
jury
at the
clearly
most
revealed
... was
possibility
prejudice
isted substantial
opinion
public
dire
in the
voir
itself. As
at
trial.
jury
poll, approximately
of the
ve-
80%
at
District Court Order dated June
upon
by
examination
nire indicated
15-17.
they
were either familiar
defendant
per-
thorough voir dire examination is
very
the case. The first
familiar with
to ensure
juror
haps
important
familiari-
the most
device
prospective
who indicated
generally
impartial.
the case
excused after stat-
See
ty with
questionable at
Berryhill
poll's
best be-
poll
was estab-
results are
contends that
ques-
completed
irrelevant
cause of “unknown factors” and
to be reliable in its
authentica-
lished
methodology.
The state claims that
tions.
tion
States,
1981),
Sept.
451 U.S. Unit A
Rosales-Lopez
United
where
indictment of
1629, 1634,
182, 188, 101 S.Ct.
68 L.Ed.2d six
racketeering
defendants for
and mari
(“Voir
(1981)
plays a critical func-
dire
juana
generated
“significant
offenses
assuring
in
the criminal defendant that
tion
coverage by
amount of local
the news me
right
impartial
to an
his Sixth Amendment
dia.”
at 282.2
pub
Id.
As a result of the
adequate
honored. Without an
will be
licity, the
pretrial
defendants filed
motions
judge’s responsibility to
dire the trial
voir
requesting
prospective
examination of each
prospective jurors who will not be
remove
juror
exposed
publici
who
been
to the
impartially
in-
able
to follow
court’s
ty.
motions,
The district court denied the
structions and evaluate the evidence cannot
simply
prospective
asked the
jurors
fulfilled.”);
States,
be
Pointer v. United
collectively
they
whether or not
had heard
414-15,
396, 408-09,
anything
or read
that had caused them to
(1894) (“Any system
We
these
in
for the
of
strikes and
United
Hawkins,
(5th
revealing
might
v.
presence jurors of the other was not consti
tutionally required, recognized
Reiger’s conviction would be reversed procedure
the voir dire
used
the trial
“
probability
court involved
‘such
prejudice
that it is
will result
deemed inher
America,
UNITED STATES of
”
ently lacking
process.’
(quot
in due
Id.
Plaintiff-Appellee,
Texas,
532, 542-43,
ing
381 U.S.
Estes v.
1628, 1632-33,
(1965)).
1433. The Ninth held Circuit that the “may signif
ror’s comments have created a potential prejudice,”
icant and remand
ed the case so that the district court could
examine transcripts the state court to de jurors’
termine whether the other “assur impartiality adequate
ances of to en Reiger
sure a fair trial.” Id. at 1434-35.
Affirming the district court on the issue inadequacy of the voir dire does not
require holding segre- that an individual
gated constitutionally required voir dire is pretrial publicity.
in cases of This case
falls well within our caselaw which “re-
quires, least, at the that where there exists