*2 JOHNSON, Before KRAVITCH and Cir lation of the sixth and fourteenth amend- Judges, *, cuit and LYNNE Senior District ments. At the state court hearing, Ross’
Judge. attorney, Phipps,2 explained Herbert gone when he had to the office of the
KRAVITCH, Judge: Circuit Colquitt County requested clerk and principal issue before this lists from which the venires appellant whether year should be allowed for in which Ross was indict- * Seybourn Lynne, Honorable H. Senior opinion U.S. Dis- Id. at 1484. We therefore limit this Judge trict for the Northern District of Ala- proceedings remand to the facts and relevant to bama, sitting by designation. the motion to the record. opinion 1. The en banc sets forth the facts of the Phipps begin representing did not Ross until offenses of which Ross was convicted and the post-trial phase. 1484-85, imposed, other sentences procedural history as well as the of the case. tried, picked, seeking ed and told had been the clerk through from 1970 destroyed. him the lists other identifying documents affidavit, Phipps Octo years, also filed an dated race sex those members in (Exhibit peti provided F state ber but the 1975and stating 1977 lists tion), averring with the state court ones he had. Norman Colquitt although County jury the 1973 *3 testified that clerk sole was the custodi- available, longer per lists were no he had an of lists and that none of the jury sonally the lists in examined connection commissioners ever pos- had his or her lists, other cases he had handled 1971 session since the entire por- but underrepre and had found containing unconstitutional tions geographic area for and sentation of blacks women. responsible which that commissioner was rejected habeas court the merits of Ross’ and were always which returned to the jury composition explained claim due to lack evi clerk. He jury that the commis- Georgia Supreme dence. The Court af sioners started afresh each time re- firmed, fully stating it had all of jury considered vised the lists and did not simply Ross’ contentions but found that he was amend old lists. Norman corroborated fairly tried Murphy’s and convicted. Ross v. Hopper, testimony as pro- to the selection 240 Ga. 240 S.E.2d cedures. He added early revision aimed getting per- was a closer centage according sex, to race and and resulted an increase of women and petition In Ross filed a for federal although blacks on the lists he could not relief, claims, corpus raising habeas twelve degree make an accurate estimate as to again allegation including an of unconstitu- since 1973 increase because he did not jury composition, tional requested an have the 1973 lists and not recall could evidentiary hearing. December, percentage of blacks or women on those granted after the court his motion dis- guess lists. He stated that his best covery, Ross subpoenaed deposed both judge early that the ordered the revision. clerk, the county Murphy, Wilbur who was produce any Norman did documents in records, custodian of the and a former response subpoena requested his which commission, jury member of the Thomas Murphy’s subpoe- the same documents as Norman.3 Murphy jury testified that the na. commissioners every revised lists two years and kept copy that his office Following depositions, the one Ross filed a lists jury current but evidentiary discarded renewed motion for an hearing old lists complet- when the new ones were supporting legal argu- with a memorandum ed. explained He was why discovery he did not depositions revealed have through of the lists from significant new evidence on his jury Murphy entitling also stated that the hearing. commis- him a theAt court’s sioners revised the lists earlier request, subsequently than usual joined a con- in 1977 in anticipation upcoming crim- legal supporting solidated memorandum drug inal case. He testified hearing that he did not motion for petitioners with two why judge cases, know the trial early ordered the habeas addressing unrelated five revision, that he just believed was to common constitutional January claims. On make sure proper, and that 26 and the district court held a any party having he was not hearing aware consolidated to determine what evi- requested Murphy produced petitioners revision. dence present the three could response no documents in subpoena challenges added the the list of 3. Mr. Norman deposition was a member of the com- time sioners at the of his Colquitt County years he, too, mission in including for several apparently had been since 1965 so during period the time which the period in office the time rele- juries lists and venires Ross’ were created. vant to claim. Murphy Mr. clerk of was the commis- evi- II. THE petitioners’ joint claims. The MOTION TO SUPPLEMENT common showing the dence consisted of studies THE RECORD capital experi- defendants unique harm that 11, 1984, appellant On Ross filed a June ence when and women are excluded blacks motion to the record of his juries members of these from their because documents, petition cop- with four statistically likely less groups two are lodged ies of which have been with this penalty. for the As a result of vote death deposi- court. Two of the documents January hearing, parties under- conjunction tions taken in district the court had limited the evi- stood that proceedings: Murphy deposition dat- petitioners dence could 6,1979; ed December dated Cole individually May on the claims at the relating December to a different showings of cause and claim. The other two documents are affi- prejudice. *4 outlining davits statistical evidence rele- hearings, After the the district court de- to Ross’ claim of vant unconstitutional com- petition corpus. nied Ross’ for habeas It position Colquitt County’s held that Ross had had a full and fair and traverse venires: Friedman affi- opportunity his claim the 8, 1984; pre- state court and had not overcome the davit dated June Jenkins affidavit sumption of correctness accorded state 10, dated June 1984. findings proceed- court in federal habeas Ross now seeks a full on the 2254(d). Ross v. ings under 28 U.S.C. § merits of his in or- composition claim (S.D.Ga.1982).4 Hopper, F.Supp. 105 evidence, develop argues der to this appeals This of the court of affirmed grant the alternative that we should relief ground the district court’s denial on this jury composition on the merits of his claim Hopper, Ross v. grounds. well as other presents because evidence (11th Cir.1983). 1537-39 prima facie case of unconstitutional subsequently granted
The full court
Ross’
composition
suggest-
and the state has not
banc,
rehearing
motion for
en
any
testimony.”
ed
rebuttal
“serious
argument
and scheduled
oral
argues
supplement
June
the motion to
claim,
denying
opinion
serving
4. The district court's first
Ross
of his
the federal
court
not
jury composition
comity
addressing
relief on his
claim held that
the interest of
not
previously
Ross had waived the
because
had not
he
merits. Ross
had set forth these
requirement
grand jury
arguments
satisfied the state
same
for the district court
in his
(see
composition challenges
prior
pleadings
be made
to indict-
Petitioners’ Consolidated Memo-
jury composition challenges
Supporting
ment and traverse
randum of Law
Motion for Dis-
20),
jury array
put upon
covery
be made when the
at
but the district court had not
defendant,
reasoning.
adequate
adopted
nor had he made an
show-
this
prejudice
of cause and
to overcome the
filing
After the
of Ross' motion to alter or
F.Supp.
Hopper,
default. Mitchell v.
judgment,
amend the
the district court issued a
(S.D.Ga.1982).
94-97
The district court resolved
Supplemental Opinion,
Hopper,
Ross v.
petitioners’
legal
the three
claims
the same
(S.D.Ga.1982),
F.Supp. 105
in which it amended
Henderson,
analysis relying on Francis v.
concerning
its memorandum and order
Ross'
96 S.Ct.
ten in 1981 under the then-recent- (f) 30(e) in that Fed.R.Civ.P. effect on ly changed Federal Rules5 because filing provided date for automatic of which depositions already assumed that the were depositions by the officer with the court part of the record in accordance with the deposition taken. before whom the was requirements of the Federal Rules in effect attorney justified that We find Ross’ was taking at the time of the depositions. relying in on the Rule and the under- Deposition Murphy A. standing deposition of those at the procedure that this would be followed. argues
The state that appellant not to supplement should be allowed deposition the record with irregulari Wilbur The record reveals also Murphy no showing filing because there was that ties in the deposition of the Norman presented it could have not that indicate that the of Mur omission corpus state phy deposition court because the was that not deliberate and deposition parties reasonably was never submitted to the fed could have believed reject part eral district court. We ar- it Finally, first had become of the record.6 30(f)(1) go 5. Fed.R.Civ.P. in was amended used. The amendments did not into effect provide filing August depositions automatic until 1980. 85 F.R.D. event, (1980). by party suspended In with the court could be order neither has directed 5(d) us to such a court order in this case. court in individual cases. Rule was provide amended at same time to that auto- depositions filing suggests matic with the no 6. court was The record that the exhibits from the longer required Murphy deposition if "on the court motion of were filed with the court party depo- January by its They accompanied or on own orders that initiative” 1980. however, deposition, filed sitions not be unless otherwise ordered or than Norman rather appellees8 B. appellant7 Deposition both the relied The Cole deposition plead- Murphy their does not address its According precedent, it ings. to circuit is brief the issue whether or not Ross appropriate supplement the record with should be to supplement allowed the record deposition upon parties relied even deposition may with the Cole read have though unexplained for some reason was the en banc court’s remand this case to filed below. v. not McDaniel Travelers panel jury composi to be limited to the (5th Co., 494 F.2d Insurance Cir. tion claim and evidence relevant thereto. 1974);9 Inc., Clay Equifax, see also deposition Cole relates Ross’ (11th Cir.1985) (district F.2d n. 2 deprived the state him of the due correctly deposition considered testi- process guarantees set forth in Giglio v. mony presented briefs and States, mo- though deposition tions even filed previously haveWe court). parts reviewed the relevant of the Cole deposition original opinion, our find, therefore, Murphy dep- We Hopper, 716 at Ross v. 1536 n. osition be made of the record should connection with Ross’ Giglio claim which appeal. Our actions authorized un- holding we denied. This was reinstated 10(e). 10(e), Fed.R.App.P. der Under Rule Kemp, en banc court. Ross v. anything party material to either is “[i]f light of the limited nature omitted from the record error acci- the remand and the fact that the issue ..., appeals, dent the court of ... of its which this already relates has initiative, may own direct that the omission court, deny been resolved corrected____” or misstatement be Mur- to supplement deposi motion Cole phy’s deposition undoubtedly material to tion. jury composition claim Murphy, since clerk, Colquitt County as the was the offi- IV. THE 1984 AFFIDAVITS
cial *6 county’s jury custodian of the lists. grant We therefore Ross’ motion as to the The two 1984 affidavits consist of state- Murphy deposition. deposition The shall by (Friedman), be ments statistician and a part made of the (Jenkins), record. attorney criminal defense who Then, Murphy deposition. May evidentiary hearing the supporting in of for an with affi- depositions by annexing original request when additional were filed to davit the com- which plete proffers the of testimony evidence made at the included the clerk’s the of hear- in list evi- ing, copy right deposition supporting hearing. of the Norman was dence his filed the second time with the court. fact deposition incorporated the that Norman Perhaps strongest much 8. the of indication the reason- Murphy’s testimony of could have reinforced appellant’s of the ableness belief that the Mur- misperception depositions phy deposition part that all the rele- was belief that was in of record is the jury composition apparent vant to the automatically had state’s the record questioning filed. deposition in Nor- testimony and reliance on the in its deposition sought pleadings. man's or Norman’s confirmation In its brief to this’ on Decem- our initial explanation Murphy already of what told ber in connection lawyers deposition the day. in his appeal earlier same consideration of Ross’ from district relief, court’s denial of description presented the state its included in testimony "deposition of explanation Appellant the District Court” an 7. Ross stated his intent to introduce testimony Murphy’s of of testimony the substance and original request in from clerk his page deposition evidentiary hearing included script. references to the tran- in for specified federal court. He Respondent-Appellee Brief for 24. that clerk was one of the individu- deposed discovery to be als his motion for Circuit, supporting deposi- and affidavit notice 9. The Eleventh in the en banc decision Subsequent taking Prichard, actual City tions. deposition mony, Bonner (11th Cir.1981), adopted referred to the precedent Ross testi- decisions believing apparently it to be prior of the former Fifth Circuit rendered court, his record before renewed motion October in a challenge validity Appellant were involved to the does not claim that the omis- Colquitt County jury of the 1975 lists in sion from the record the evidence con- during pretrial proceedings in a 1977 crimi- tained in 1984 affidavits was a mistake Nicolai, (i.e., State v. No. nal action Crim. oversight. Rather, argues that his (Indictment Super.Ct. No. 11977 Col- attorneys attempted obtain the 1973 Co.)). quitt Friedman sets forth in his affi- lists and statistics the race and sex of davit the statistics for the racial and sexual those listed from officials in 1976 and composition County the Colquitt again in by but were told the state lists in states he 1973 and 197510 and custodian records that the 1973 lists obtained from either this information had been discarded in 1975. attor- Ross’ clerk or a commissioner after he was neys only chance, discovered to analyze retained in 1977 Jenkins preparation argument their before the County Colquitt that were to be en banc court June used in the Nicolai case. Jenkins explains information still existed Friedman’s files. that he affidavit retained Friedman faced, therefore, We are with a he situation happened in 1977 and how be contact- attorneys demanding ed analysis Ross’ 1984.11 a different than the research, female, reports grand jury 10. Friedman that his which 53.53% whereas list jury pool female, and included review venires was 6.86% black and 4.68% and the juries from traverse 1973 traverse list 9.95% black selected, according revealed disparities female. 14.92% He calculated the census, community population age follows: eighteen older was black 18.87% Comparative Grand Absolute Category Population Jury Disparity Disparity Venire 12.01 White 81.13 93.14 14.80 + + 6.86 -12.01 Black 18.87 -63.64 Male 46.47 95.32 48.85 105.12 + + Female 53.53 4.68 -48.85 -91.25 Comparative Traverse Absolute Disparity Jury Disparity Category Population Venire 10.99 White 81.13 90.05 +8.92 + 9.95 -8.92 -47.27 Black 18.87 Male 46.47 85.08 +38.61 +83.08 -38.61 -72.12 14.92 Female 53.53 *7 Court, sig- explained figures Superior Friedman nificantly overrepresent Colquitt that even these on his motion in percentage clerk, Murphy, along testified with some of the missing blacks on the venires because of Friedman, jury commissioners and but that the precinct predominantly from data some white state offered no rebuttal evidence. ex- Jenkins provides areas. Friedman same this data and plains judge indicated at the of the close lists, analysis finding greater for the 1975 a hearing light showing that in of the of substan- underrepresentation of blacks. Friedman also underrepresentation grave tial he had doubts as presence during testimony attests to his validity to the of the lists. Jenkins subse- evidentiary hearing at an commissioners in the quently learned that the lists reconstituted. Finally, Nicolai case. Friedman states his con- He further states that based on the information study clusion that based on his entire of the county’s jury he had all sub- lists County Colquitt system, 1973-75 selection stantially underrepresented blacks and women system produce grand to failed or traverse prior He to the to the 1977 revision. also attests n juries representative community. of the Murphy undoubtedly fact that Mr. aware the same information because con- Friedman participation 11. Jenkins attests to his in the Ni- office, investigation attorney ducted his in the clerk’s colai case as for one the defendants Murphy participated system challenging composition because in the and his motion selection, petit hearing, subse- based testified at the on Fried- study. quently participated man's Jenkins states that revision lists. of the depositions request previously appeal by to in this our add the order dated record. information in the January Because the granting a motion the district affidavits was not before supplement state to the record.13 form, neither and because of the argument denying state’s parties relied on the evidence at an earlier supplement Ross’ motion is that unlike point proceedings, Fed.R.App.P. in the Dickerson, request Ross’ motion 10(e) inapplicable portion is to this of the containing concerns affidavits information Appellant motion supplement.12 re- totally “obtained in to the trial of relation quests that this court exercise its inherent distinct appel- case” in which the “instant equitable authority supplement and, therefore, lee” was not involved14 nev- appeal. record on er opportunity had the to rebut the evi- agree dence. We the state must be Appeals' A. Eq- Court Inherent provided opportunity with an to rebut Authority Supplement uitable evidence, but that a we note remand to the Record satisfy district this court would issue. question The state does not this court’s concerns, however, There are additional authority supplement ap the record on that this court must consider before invok- peal. parties recognize Both equitable authority our inherent to en- authority in Dicker court exercised such large the consider record and material that Alabama, son v. 1366-68 has not been considered the court below. denied, (11th Cir.), cert. exercised, authority rarely Such is Dicker- L.Ed.2d when we Alabama, son v. F.2d at granted and this request by petitioner there- general court has supplement in to not articulated rule for appeal the record on Rather, when it transcript appropriate. state court trial which the dis- we have trict court dealt requests case-by-case had not considered. Further- with such on a more, this court exercised such basis.15 authority supplement We have refused to course, motion, appeals although As a matter of this court of of the the motion concerned delegates authority to the clerk of this court to material that was not before the district court. grant supplement motions to if the motions pertained The state’s motion to uncontested and the material at issue was be- fore the district court. Giglio its defense to Ross’ claim. The 17(c)(8). 11th Cir.R. excerpt material consisted of from a murder parties Where the treated the have material as coconspirators trial one of Ross’ which took if it was record and later discover place after Ross’ trial. not, unexplained that for some reason it was rely 10(e) authority Fed.R.App.P. on the as 14. The state asserts in its brief that the "instant Murphy deposition the case of the discussed appellee” participate proceedings did not in the Page, above. See also States v. 661 F.2d from which the affidavit information came. At (5th denied, 1981), Cir. cert. 455 U.S. however, argument, oral the state admitted that We do proceedings it had been in the involved authority beyond not extend that situations came, Nicolai case from information accident,” "by where the omission was error or attorney Regardless insofar as a state testified. recognize but instead it is our inherent role, provision of the state’s for the state to equitable authority that is exercised in such rebut the evidence will ensure that it is not Alabama, cases. See Dickerson v. prejudiced by any prior nonparticipation. (11th Cir.), 1367 n. 5 *8 878, 173, L.Ed.2d 74 142 We approach Supreme 15. This follows Court’s recognize 10(e) interpretation that this of Rule holding proper as to the treatment of issues conflicts with the Second Circuit’s view {see presented appellate to federal courts but not 16), however, ap note we note that our infra passed Supreme on below. The Court has stat- proach applied by is similar to that other Courts ed that the See, States, Appeals. e.g., of Turk v. United 429 1327, (8th Cir.1970); may questions up matter of F.2d what be taken 1329 Gatewood v. 789, States, (D.C.Cir. appeal United 1953). 209 F.2d resolved for the first time on 792-93 primarily one left to the discretion of the appeals, courts of to be exercised on the facts Apparently, objection 13. general no was filed within the of individual cases. We announce no days filing eleven granting Certainly between rule. there circumstances in
1475
Id. at 1368 & n. 7. The Fifth
2254(a).
when
has filed
party
supple
the record
§
requesting
mental material
leave
acknowledged
significance
without
Circuit
of
appended
of this court or has
material
to
v.
these first two
Gibson Black-
factors
filing
brief
to
appellate
an
without
motion
bum,
403,
(5th
F.2d
3
Cir.1984),
744
405 n.
States,
v.
supplement. See Harris
United
on
justify
and relied
them to
its considera
1240,
Cir.1985)
(11th
1242
(govern
768 F.2d
photographic
tion of
evidence used in a
diplomatic
foreign
ment
filed
note from
pretrial
display
identification
that was add
government
appeals
court
without
ed to the record after the district court had
so);
United States
requesting leave to do
rendered its
judgment.
final
Both the
1174,
Bosby, 675
(11th
v.
1181 n.
F.2d
9
Eighth
Circuit
the District of Columbia
Cir.1982) (government attached affidavit to Circuit have invoked similar “interests of
appellate
filing
its
brief
to
without
motion
justice” language.
See Turk v. United
Co.,
v.
supplement); Mitchell Trade Winds
States,
(8th Cir.1970)
429 F.2d
1329
(5th Cir.1961) (Labor
289 F.2d
De
(authorizing enlargement of record
ap
on
partment
correspondence
to
attached file
peal
preliminary hearing
evidence not
also
brief);
see
Kemlon Prod
appellate
its
presented to trial
if
is “in the
States,
Development
&
ucts
Co. United
justice”
so);
interest of
Gatewood v.
to do
denied,
(5th Cir.),
cert.
646 F.2d
States,
(D.C.
209 F.2d
792 n. 5
S.Ct.
L.Ed.2d
Cir.1953) (court
appeals
considered tran-
(denial
(1981)
supplement
of motion to
script
preliminary proceedings
which
with items
related
liti-
pending
record
from
had not been before trial court because it
gation
parties,
between
on
relying
same
was in interest of both parties and due
general proposition that “court of appeals
justice).
administration
ordinarily enlarge
will not
the record
appeal
include material not
before
This circuit does not consider the same
court.”).
district
cases,
in all
factors
In Erkins v.
however.
sup-
have allowed
cases in which we
Bryan,
(11th Cir.),
consideration of sev-
suggest
plementation
989, 103
whether to exercise
deciding
eral factors
allowed a
Dickerson,
In
discretionary authority.
our
party
supplement
the record with docu
three
that convinced us
factors
we listed
mentary
quoted
evidence that
been
had
First,
discretionary power.
our
exercise
affidavits,
presented
but not
in its
material
into
of the
acceptance
entirety to the trial
court. The
stated
any
beyond
would establish
the record
justification
granting
the motion in that
pending
proper
resolution
doubt
case was the fact
party
that the other
had
Second, remand-
closed
fered
beyond
material would establish
presented to the trial court.16
doubt that he is entitled to a full evidentia-
ry hearing
on his
claim under Town-
B. Discussion
Sain,
293,
745,
83 S.Ct.
9
372 U.S.
send v.
consti-
ordinarily would not
Ross’ case
appro-
(1963).
it would be
of the elements
in which
L.Ed.2d 770
One
tute a situation
authority
inherent
our
priate to exercise
under Town-
that Ross must establish
above,
because,
discussed
cases
unlike the
is that his failure
send17
not file his motion
Ross did
was
material
to the state court
already
had
panel
of this court
until after
neglect. 372
not the result of inexcusable
parties
the issue and
considered
317,
at face
1477
petition
time of the state
his
discovered it
the
habe-
state habeas
and which he con-
proceedings
pursue
in December of 1976. The
tinued
as
to
his
pro-
federal habeas
explain
Moreover,
does
ceedings.
record as it stands
not
Ross’
Ross’
evi-
dence,
subpoena
failure to
the clerk and the 1973
record,
if
included
the
would cer-
Furthermore,
into
state court.
Ross
tainly appear to
impact
have a definite
on
explained why
adequately
has not
the sta-
ability
prove
illegal composition
to
the
tistical evidence was
discovered
grand
juries.19
of his
and traverse
Be-
proceedings through
federal
the
fol-
allegations,
cause of these
find appro-
it
lowing
Murphy’s
up on
and Norman’s re- priate to invoke our
authority
inherent
and
of
1975
marks about the revision
list.18
remand the motion to
record to the district court
a hearing
for
to
time, however,
At the same
we are
resolve the threshold issue of inexcusable
extremely
by disturbed
fact
neglect.
Zant,
Thomas
See
v.
697 F.2d
on
apparent negligence
Ross’
977,
(llth Cir.1983),
986
appeal on other
attorneys
to
may have been due
their re
following remand,
grounds
extent that
actions.”
with the Friedman evidence behalf of
Ross at the federal habeas on Jan-
uary 26 and argument the eve of the oral
Not until
before en banc effort supplement the record with materi-
made
al which was never before either the state my
or federal habeas court. Since view neglect glaringly appar-
inexcusable is so record, recognize I
ent on the would is,
motion to for what it a last failing
ditch effort I bolster cause. *13 forthrightly deny
would it. remanding
From order such motion court, respectfully I
to the district dissent. BENHAM, al.,
Joe et
Plaintiffs-Appellants, LEDBETTER, al.,
James et
Defendants-Appellees.
No. 85-8388. Appeals,
United States Court of
Eleventh Circuit.
March