Case #15 Crutchfield v. Wainwright



803 F. 2d 1103 - Crutchfield v. L Wainwright
Home803 F2d 1103 Crutchfield V. L Wainwright
803 F.2d 1103

Barney Earl CRUTCHFIELD, Petitioner-Appellee,
Louie L. WAINWRIGHT, Jim Smith, Respondents-Appellants.

No. 84-3508.

United States Court of Appeals, Eleventh Circuit.

Nov. 10, 1986.

Thomas H. Bateman, III, Dept. of Legal Affairs, Tallahassee, Fla., for respondents-appellants.

Gwendolyn Spivey, Tallahassee, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Florida.


HATCHETT, Circuit Judge:

In this case, the en banc court decides the extent to which a trial court may instruct a criminal defendant not to confer with counsel during a recess which occurs during the defendant’s testimony.

During Barney Earl Crutchfield’s trial for armed robbery with a deadly weapon, the Florida trial judge instructed Crutchfield’s counsel not to talk with him about his testimony:

THE COURT: All right. We’re going to take a little break, Ladies and Gentlemen. We’ve been at it a little bit. And I see there’s a sigh of relief on some faces? Over here. Do not discuss this case, please, while you’re in the jury room. All right.


THE COURT: All right. Gentlemen, in view of the fact that this is going to be a very brief break, I direct that the lawyers for Mr. Crutchfield not to discuss his testimony with him during the course of this break.

After receiving this instruction, Crutchfield’s counsel did not object, move for a mistrial, or ask to discuss with him non-testimonial aspects of the case. Crutchfield, who was on the witness stand at the time of the admonition, contends that this admonition constituted the first violation of his right to the assistance of counsel.

The length of the recess, which occurred near the end of Crutchfield’s direct examination, is in dispute. The government contends that it was brief and routine. Crutchfield contends that it extended into a two-hour lunch break. Because of the manner in which we resolve the issue, the length of the recess is rendered unimportant.

After the recess direct examination continued for a short period of time. During cross-examination, Crutchfield made statements which indicated that he had no reason to rob or steal because his father supplied his financial needs.1 After soliciting this testimony, the trial court sent the jury out of the courtroom and the prosecutor sought permission to impeach Crutchfield through presentation of evidence that he had been convicted for burglary five years before. Holding that Crutchfield “opened the door” for this impeachment evidence, the trial court granted the prosecutor permission to impeach Crutchfield using the prior conviction evidence. Crutchfield, apparently realizing that the impeaching evidence would be presented to the jury, asked the court to speak with his counsel.

THE COURT: All right. Bring the jury in. Son, don’t direct any statements to me. If you have anything, you speak to your lawyer.

CRUTCHFIELD: Can—can I speak with him?

THE COURT: But don’t direct statements to me.

Later, just before the jury was returned to the jury box, the following colloquy occurred:

CRUTCHFIELD: Can I speak with him for a minute?

THE COURT: What did I just tell you?


Immediately following the jury’s return to the courtroom, through cross-examination, the prosecution presented the damaging impeachment evidence. The jury convicted Crutchfield of the charges, and the judge sentenced him to forty-five years in prison, with jurisdiction retained over the first one-third of the term. Crutchfield contends that the court’s statements, above quoted, constitute a second violation of his right to the assistance of counsel.

In a Per Curiam order, dated June 17, 1982, Florida’s First District Court of Appeals affirmed Crutchfield’s conviction. The state trial court denied Crutchfield’s motion for collateral relief (3.850, Fla.R.Crim.P.), and the Florida appellate court affirmed the denial of rule 3.850 relief. Crutchfield v. State, 431 So.2d 244 (Fla. 1st DCA 1983). Petition for Rehearing was denied on June 3, 1983. In the rule 3.850 motion for collateral relief, Crutchfield raised the denial of assistance of counsel claim.2

After exhausting state remedies, Crutchfield filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Florida. Relying on United States v. Conway, 632 F.2d 641 (5th Cir. Unit B 1980), the district court granted the writ of habeas corpus based on the denial of assistance of counsel claim.

On appeal, a panel of this court held that Conway had been implicitly overruled; therefore, it reversed and remanded the case to the district court for a hearing on whether the constitutional violation amounted to harmless error. Crutchfield v. Wainwright, 772 F.2d 839 (11th Cir.1985).

We took this case for full court consideration to determine the circumstances, if any, in which a prohibition against a criminal defendant/witness consulting with counsel during a recess constitutes a denial of assistance of counsel to the extent that the defendant is entitled to a new trial.


The appellant, state of Florida, contends that the district court erred in relying on Conway ‘s rule of per se reversal, and that the prejudice rules of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), state the correct standard of review.

Crutchfield contends that the district court correctly relied on Conway because Strickland and Cronic are not applicable to this situation, which involves a denial of assistance of counsel claim as opposed to the ineffective assistance of counsel claims presented in Strickland and Cronic. Crutchfield emphasizes that the case law of this circuit, the majority of circuits in the United States, and many of the states, mandates a per se reversal rule when assistance of counsel is denied at a critical stage of criminal proceedings.


In resolving the issues presented in this case, it is helpful to review the law presently binding in the circuit. Our review begins with Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). In Geders, the Supreme Court held that a trial court’s order preventing a defendant from consulting with his counsel during a seventeen hour overnight recess between defendant’s direct and cross-examination, based on the trial judge’s conclusion that the order was necessary to avoid improper influence on defendant’s testimony, deprived the defendant of his right to assistance of counsel guaranteed by the sixth amendment to the Constitution of the United States.

The Court was careful, however, to limit its holding:

United States v. Leighton, 386 F.2d 822 (C.A.2 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case.

Geders, 425 U.S. at 89 n. 2, 96 S.Ct. at 1336 n. 2, 47 L.Ed.2d at 600 n. 2 (citations omitted). Thus, the Court left undecided whether denial of the right of consultation between a criminal defendant and his counsel during a brief routine recess constitutes a violation of the defendant’s sixth amendment rights.

Courts were quickly called upon to decide the issue left open in Geders. In Conway, our predecessor circuit, the former Fifth Circuit, held that to the extent that the goal of preventing improper coaching conflicts with a defendant’s right to freely consult with counsel, the conflict must be resolved in favor of the right to assistance and guidance of counsel.3 Thus, after Conway, ordering a criminal defendant not to consult with counsel during court recesses, no matter how brief, violated the constitutional right to assistance of counsel guaranteed by the sixth amendment, and required reversal. Conway, 632 F.2d at 645.

In 1984, the Conway issue was first presented to the Eleventh Circuit in United States v. Romano, 736 F.2d 1432 (11th Cir.1984). Following Conway, we held that a district court’s order that a defendant refrain from consulting with his counsel concerning testimony during an overnight recess, which extended for several days due to the defendant’s hospitalization, constituted reversible error. In discussing controlling precedent, we stated:

Contrary to the language in some of these cases from other circuits, this court appeared to conclude in United States v. Conway, that the Geders violation was reversible error without any reference to possible prejudice. At least no inquiry along the lines outlined above was made in the opinion in that case.

Romano, 736 F.2d at 1438. Thus, the latest case in this circuit followed Conway ‘s per se reversible error rule. Unfortunately, in dicta, we went on to state:

We need not decide whether the government might be able to demonstrate a lack of prejudice to the point of harmlessness in a given case. Our review of the record before us indicates that the error in this case cannot be deemed harmless. [Emphasis supplied.]

Romano, 736 F.2d at 1438. The Romano court did not intend to suggest that a harmless error inquiry would always be required after finding a violation of the defendant’s right to assistance of counsel. The court simply noted that the defendant in Romano was entitled to a new trial regardless of the standard employed. Consequently, at the time the panel decided this case, this circuit followed Conway ‘s per se reversal rule.

The Crutchfield panel, in holding that Conway had been implicitly overruled, relied on United States v. Cronic and Strickland v. Washington. In Strickland, the Supreme Court identified two components for a successful ineffective assistance of counsel claim: (1) counsel’s representation must have fallen below “an objective standard of reasonableness,” and (2) the defendant must have demonstrated a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2065, 2070, 80 L.Ed.2d at 693, 698.

In Cronic, the Supreme Court held that only when surrounding circumstances justify a presumption of ineffectiveness of counsel can a sixth amendment claim be sufficient without inquiry into counsel’s actual performance.

The panel elaborated upon the relationship between Strickland, Cronic, and Conway, stating:

The denial of access to counsel for seventeen hours in Geders was given as an example in Cronic of a case where prejudice could be presumed. [Citation omitted.] In citing Geders for this proposition, the Court indicated the previously unstated rationale of the Geders rule: that prejudice was so likely to result from the overnight denial of access to counsel as to make a specific inquiry superfluous. However, as this court held in Chadwick v. Green, 740 F.2d 897, 901 (11th Cir.1984), presumed prejudice will be available in only a “very narrow spectrum of cases”; it therefore does not follow from the Supreme Court’s citation of Geders that prejudice should be presumed in any instance of denial of access to counsel—regardless of how brief. Indeed, the Supreme Court in Geders viewed denial of access during brief routine recesses as a potentially distinct variety of case. This fact, coupled with the admonition of Cronic and Strickland v. Washington against the creation in this area of broad categories of cases requiring automatic reversal, leads us to inquire as to whether Conway has been implicitly overruled.

Crutchfield, 772 F.2d at 842 (footnotes omitted).

Although the panel viewed Strickland and Cronic as implicitly overruling Conway, it did not consider the Strickland test for determining prejudice appropriate:

Under Strickland v. Washington, the burden placed on a defendant to show prejudice in the typical case of ineffective assistance of counsel is a heavy one: he must show that, but for his counsel’s errors, there is a reasonable probability that the proceeding would have had a different outcome. The apparent rationale for saddling the defendant with this burden is a balancing of the defendant’s right to counsel against the need for finality of trials. The analogous rule in this situation would be to require a defendant to prove that, but for the denial of access to counsel, there is a reasonable probability that his trial would have had a different outcome.

We believe that a completely analogous rule is inappropriate, however…. The more appropriate analogy is … to cases where a clear constitutional violation exists, as, for example, in the case of improperly admitted evidence that has been obtained in violation of the Fourth Amendment. In those cases, the prosecution is given the burden of showing that an error is harmless beyond a reasonable doubt.

Crutchfield, 772 F.2d at 842-43 (citations omitted).

Contrary to the panel, we conclude that Strickland and Cronic did not overrule or modify Conway. Although Strickland held as a general rule that an individual could prevail on a claim of ineffective assistance of counsel only on a showing that the insufficient representation affected the reliability of the trial, two factors counsel against our relying on Strickland in this situation. First, Strickland involved a claim of ineffective assistance of counsel; here, we are concerned with a claim of denial of assistance of counsel.

Second, as this court stated in Chadwick v. Green, 740 F.2d 897, 900 (11th Cir.1984): “In Cronic, the Court carved a narrow exception to [Strickland ‘s] general rule that a defendant must demonstrate prejudice: a showing of prejudice is not necessary if there are ‘circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’ “

In Cronic, the Supreme Court cited Geders as a case where constitutional error could be found without any showing of prejudice because the accused was denied assistance of counsel during a critical stage of the proceedings. Cronic, 466 U.S. at 659, n. 25, 104 S.Ct. at 2047, n. 25, 80 L.Ed.2d at 668, n. 25. Thus, the denial of assistance of counsel in Geders was deemed reversible error not due merely to the length of the denial, but also because it occurred at a critical stage of the proceedings.

When Geders, Strickland, and Cronic are considered, nothing indicates that the Supreme Court intended the Strickland rule, applicable to situations in which counsel performs below the required standard, to apply to situations where the state, the court, or the criminal justice system denies a defendant assistance of counsel. The language from Chadwick, above quoted, is convincing: denial of assistance of counsel constitutes reversible error. Therefore, we reaffirm the underlying rationale of Conway and Romano that any deprivation of assistance of counsel constitutes reversible error and necessitates a new trial. Our rule does not include a harmless error analysis. Cronic and Strickland make clear that “where actual or constructive denial of assistance of counsel occurs a per se rule of prejudice applies.” Chadwick, 740 F.2d at 900 n. 3. The reasons for adopting such a rule are best expressed in Cronic:

In our evaluation of that conclusion, we begin by recognizing that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated…. There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.

Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105 (1974) because the petitioner had been “denied the right of effective cross-examination” which ” ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ “

466 U.S. 658-59, 104 S.Ct. 2046-47, 80 L.Ed.2d 667-68 (emphasis added).

The majority of the circuits that have announced rules for reviewing denial of assistance of counsel claims favor the per se rule. United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (per se rule applied prospectively); United States v. Bryant, 545 F.2d 1035 (6th Cir.1976) (in absence of extraordinary circumstances, it is abuse of discretion and violation of right of defendant to assistance of counsel for a trial court to direct that defendant have no communication with his counsel during criminal trial over a noon recess). Only one circuit applies a harmless error analysis to a prohibition of consultation during trial between a criminal defendant and his counsel. United States v. DiLapi, 651 F.2d 140 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir.1981), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983).

As we noted above, Crutchfield’s lawyers did not object, move for a mistrial, or ask to discuss testimonial or non-testimonial aspects of the case with him after the trial judge instructed them not to confer with Crutchfield. As to the first alleged violation, we are unable to find any evidence that Crutchfield’s lawyers actually wanted to talk with him during the recess, or that Crutchfield desired to consult with his counsel. If the record reflected such a desire by either, we would find that the trial judge’s admonition constituted reversible error. Because the trial record does not reflect—by objection, motion, or request—that Crutchfield and his counsel actually desired to confer during the recess, we find that Crutchfield was not deprived of the right to assistance of counsel within the meaning of the sixth amendment. Thus, we overrule Conway and Romano to the extent they hold that a denial of assistance of counsel is presumed whenever a trial judge instructs counsel not to confer with a defendant during a recess. We conclude that a defendant or the defendant’s counsel must indicate, on the record, a desire to confer in order to preserve a deprivation of assistance of counsel claim.4

We thus announce a rule that satisfies our concerns for the important constitutional right of assistance of counsel, provides for the orderly conduct of trials, and makes sense. The defendant must show that the prohibition actually prevented the opportunity to confer with counsel. See Bailey v. Redman, 657 F.2d 21 (3d Cir.1981); Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982). Once the defendant makes the requisite showing, a new trial is warranted. See United States v. Allen, 542 F.2d 630 (4th Cir.1976) and United States v. Bryant, 545 F.2d 1035 (6th Cir.1976).

Although this en banc court is charged with the ultimate responsibility of interpreting the federal Constitution, we are confident in the rule we adopt today because the per se rule is already in effect in several states, including two states in the Eleventh Circuit. Our rule, announced by this opinion, is the per se rule with the additional common sense requirement that the record reflect a desire to consult. Alabama applied the per se rule in Payne v. State, 421 So.2d 1303 (Ala.1982) and Ashurst v. State, 424 So.2d 691 (Ala.1982). Georgia law does not appear to involve a harmless error analysis. Cook v. State, 158 Ga.App. 389, 280 S.E.2d 409 (1981) (not definitive). Florida has wrestled with the per se versus harmless error rules and has reluctantly adopted the harmless error analysis. See Bova v. State, 410 So.2d 1343 (Fla.1982), and Recinos v. State, 420 So.2d 95 (Fla. 3d D.C.A. 1982).

Other states following the per se rule are Illinois: People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96 (1969); District of Columbia: Jackson v. United States, 420 A.2d 1202 (D.C.1979); Mississippi: Pendergraft v. State, 191 So.2d 830 (Miss.1966), and Tate v. State, 192 So.2d 923 (Miss.1966); New York: People v. Hagen, 86 A.D.2d 617, 446 N.Y.S.2d 91 (1982, 2d Dept.); Pennsylvania: Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974), Commonwealth v. Werner, 214 A.2d 276 (1965), and Commonwealth v. Barber, 250 Pa.Super. 427, 378 A.2d 1011 (1977); and Rhode Island: Mastracchio v. Houle, 416 A.2d 116 (R.I.1980).

We have explored the possibility that the instruction in this case, “don’t talk about your testimony,” is appropriate because it is narrowly tailored to prevent coaching. Coaching has come to mean improperly directing a witness’s testimony in such a way as to have it conform with, conflict with, or supplement the testimony of other witnesses. We conclude that the trial court’s solution to its concern about coaching could not take the form of an admonition against Crutchfield consulting with his counsel. We reach this conclusion for two reasons.

First, the Geders Court suggested a variety of ways to serve the purpose of sequestration “without placing a sustained barrier to communication between a defendant and his lawyer.” 425 U.S. at 91, 96 S.Ct. at 1337, 47 L.Ed.2d at 601. See United States v. Romano, 736 F.2d 1432, 1437 (11th Cir.1984) (noting that Geders “did not indicate that a restricted prohibition against talking with a defendant about his testimony was a possibility”). The list of permissible measures cited in Geders excludes by implication a bar on consultation.5

Second, Geders explained that traditional concerns about coaching are less applicable to a criminal defendant than to other witnesses, because a defendant is present in the courtroom throughout all testimony. 425 U.S. at 88, 96 S.Ct. at 1335, 47 L.Ed.2d at 599.

The trial judge may insure that the trial proceedings are orderly, without unnecessary nterruptions and delays. Such rare right of restriction by a trial court when aimed only at insuring orderly procedures in the trial will receive our approval. We caution trial judges, however, that the discretion to limit consultation is very narrow.

Since the record in this case does not reflect a desire to consult or an objection to the trial court’s admonition, the district court must be reversed.

We reverse the district court and vacate the order granting the writ. We remand for consideration the issue left undetermined by the district court: whether the trial court erred in permitting the state to bring out on cross-examination evidence of Crutchfield’s prior criminal activity.

VACATED and REMANDED for proceedings consistent with this opinion.

TJOFLAT, Circuit Judge, specially concurring, in which RONEY, Chief Judge, and HILL, FAY and ANDERSON, Circuit Judges, join:

We are called upon in this habeas case to decide whether petitioner’s sixth amendment right to the assistance of counsel was denied when the trial court instructed his attorneys “not to discuss his testimony with him” during a brief recess, and neither petitioner nor his counsel raised any objection. Because I find no denial of the assistance of counsel under these circumstances, I agree with the court that the district court’s decision granting the petition for a writ of habeas corpus must be reversed. I write separately, however, because the plurality opinion written by Judge Hatchett (plurality) employs a convoluted and self-contradictory analysis that I cannot endorse.


Barney Earl Crutchfield was tried for committing armed robbery with a deadly weapon and took the stand to testify on his own behalf. Near the end of his direct examination the court announced that a short break would be taken and instructed Crutchfield’s counsel “not to discuss his testimony with him during the course of this break.” Neither Crutchfield nor his attorneys1 objected to this admonition, and at no time during the recess did they inform the court that they wished to confer. The length of the break is in dispute, with Crutchfield contending that it ballooned into a two-hour recess2 and the State arguing that it was very brief and routine.3

Following the recess, Crutchfield’s direct examination concluded and his cross-examination began. During cross-examination, Crutchfield testified that he would never have to commit robbery for money, because his father supplied him with whatever financial assistance he required. At this point, the prosecutor approached the bench and advised the court that he wished to impeach Crutchfield with evidence of a prior burglary conviction. The jury was excused from the courtroom while the court considered this evidentiary question. The court concluded that the impeachment evidence was admissible and the following exchange then took place:



All right. Bring the jury in.

Son, don’t direct any statements to me. If you have anything, you speak to your lawyer.

[CRUTCHFIELD]: Can—can I speak with him?

THE COURT: But don’t direct statements to me.

[CRUTCHFIELD]: Can I speak with him for a minute?THE COURT: What did I just tell you?

[CRUTCHFIELD]: Yes, sir.

The jury was brought back into the courtroom and cross-examination was concluded. The jury returned a verdict of guilty, and the court sentenced Crutchfield to a forty-five-year prison term, retaining jurisdiction over the first one-third of that term. The conviction was affirmed on direct appeal.4 Crutchfield moved for collateral relief in state court, pursuant to Fla.R.Crim.P. 3.850, and the state trial court denied relief.5 On appeal, the District Court of Appeal of Florida addressed only one of Crutchfield’s claims in its opinion, that he was denied the assistance of counsel when the trial court instructed his attorney not to discuss his testimony with him during a recess, and summarily affirmed the trial court as to all other issues. Crutchfield v. State, 431 So.2d 244 (Fla.Dist.Ct.App.1983). As to the assistance of counsel claim, the court, distinguishing Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (order prohibiting any consultation with counsel during an overnight recess violated sixth amendment right of defendant), held that a limited prohibition on consultation during a brief routine recess did not deny Crutchfield his sixth amendment right to the assistance of counsel.

Crutchfield then filed the instant petition seeking habeas relief, raising the same grounds asserted in his Rule 3.850 petition. The district court, relying on United States v. Conway, 632 F.2d 641 (5th Cir.1980) (Geders rule applicable to recess of any length),6 held that the trial court denied petitioner his sixth amendment right to the assistance of counsel when it instructed his attorneys not to discuss his testimony with him during a recess.7 A panel of this court concluded that a constitutional violation had taken place, but reversed and remanded the case for the district court to determine whether the error was harmless. Crutchfield v. Wainwright, 772 F.2d 839 (11th Cir.1985). We then granted Crutchfield’s petition for rehearing en banc.


Petitioner has complained about two analytically separate alleged instances of deprivation of assistance of counsel. The first occurred during petitioner’s direct examination, when the trial court instructed his counsel not to discuss his testimony with him during a break in the trial. The second occurred during cross-examination, at the conclusion of a conference out of the presence of the jury regarding the admissibility of evidence of a prior burglary conviction. These two instances are unrelated and must be assessed separately.A.

The second incident is easily disposed of and I will therefore address it first. This incident occurred when, during petitioner’s cross-examination, he testified that because his father supplied his financial needs, he would never have to commit robbery for money. The prosecutor sought to impeach petitioner with evidence of a prior burglary conviction, and the court excused the jury so that it could hear argument on the admissibility of the impeachment evidence. The court determined that the impeachment evidence was admissible, at which point petitioner indicated to the court that he wanted to speak with his attorney. Petitioner was told that he should not direct his statements to the court but should instead speak to his lawyer. The court then reiterated its instruction that petitioner not direct statements to it. Petitioner’s attorneys witnessed this colloquy and said nothing. Neither petitioner nor his lawyers informed the court that they needed to consult about matters other than the impending resumption of petitioner’s cross-examination.

It is readily apparent that no constitutional violation occurred on this occasion. As an initial matter, the court did not prohibit petitioner from consulting with his attorney. Petitioner was instructed not to address the court but to speak to his lawyer. He never attempted to do so, and his lawyers made no attempt to speak to him. More importantly, petitioner has no constitutional right to compel a break in the ongoing trial proceedings to speak with his attorney. United States v. Vasquez, 732 F.2d 846, 848 (11th Cir.1984) (per curiam). Geders and its progeny establish that, when a recess in a trial occurs, the Constitution is violated, under certain circumstances, if the defendant is prohibited from consulting with counsel. These cases do not stand for the proposition that a defendant, having taken the stand, may compel a recess during his examination to consult with counsel. See id.

In this case, petitioner volunteered a self-serving statement during cross-examination that the prosecutor sought to impeach. The jury was excused while the court heard argument regarding the admissibility of the impeachment evidence. Having made its decision, the court instructed the bailiff to return the jury to the courtroom. No recess in the proceedings occurred. Petitioner had no constitutional right to compel the court to stop the proceedings so that he could confer with counsel.8


Petitioner’s other allegation of error is that the court deprived him of his sixth amendment right to the assistance of counsel by instructing his attorneys not to discuss his testimony with him during a break that occurred toward the end of his direct examination. The beginning point for analyzing this claim is the Supreme Court’s decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). In Geders, the trial court took an overnight recess at the conclusion of the direct examination of the defendant. Over the vigorous objection of counsel, the court ordered the defendant not to talk to his counsel “about anything” during the overnight recess. The court was not persuaded by counsel’s protestations that he needed to confer with his client about trial strategy, including what witnesses to call the following day, and that he would not discuss the defendant’s testimony or impending cross-examination, or improperly “coach” the defendant.

In an opinion explicitly limited to its facts, the Supreme Court held that the total ban on consultation during an overnight recess violated the defendant’s sixth amendment right to the assistance of counsel and warranted reversal of the conviction. Id. at 91, 93 S.Ct. at 1337.9 The Court emphasized that it was not deciding the constitutionality of an “embargo order preventing a defendant from consulting with his attorney during a brief routine recess during the trial day.” Id. at 89 n. 2, 93 S.Ct. at 1336 n. 2. The Court recognized that the prevention of “coaching” was a valid concern, one in fact proscribed by ethical rules, but stated that such a goal could not be achieved at the expense of depriving a defendant of his sixth amendment right to counsel during a long overnight recess. Id. at 89-91, 93 S.Ct. at 1336-37.10 The Court suggested that, in order to vindicate the legitimate interest of preventing coaching, a trial court could constitutionally continue the trial without recess in order to complete the defendant’s testimony. Id. at 90-91, 93 S.Ct. at 1336.

The en banc court is now called upon to address an issue purposefully left unresolved in Geders: the degree to which a defendant’s sixth amendment right to the assistance of counsel is implicated by a trial court’s restriction on the ability to confer with counsel during a brief recess that does not extend overnight. Our resolution of this matter should be guided by certain established principles. The starting point is the sixth amendment’s guarantee that a defendant is entitled to the assistance of counsel at all critical stages of the trial proceedings. See United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 2047 & n. 25, 80 L.Ed.2d 657 (1984). This fundamental guarantee does not, however, entitle a defendant, once he takes the witness stand, to consult with counsel during the time that he is on the stand. A defendant certainly has no right to be “coached” in the midst of his testimony. The tension between these principles arises when it is necessary or desirable to interrupt the proceedings and take a recess during the defendant’s testimony.

The extreme cases in this area should present little difficulty. In the Geders situation, where a complete and overnight ban on communication is imposed over strenuous objection, it is clear that the assistance of counsel has been denied. It can be presumed that the defendant was prejudiced by his inability to consult with counsel as to any matter for such a prolonged period of time.11 On the other hand, if at a crucial point in the cross-examination of the defendant the trial judge is forced to stop the proceedings and attend to another matter for a minute or two, a restriction, on the defendant’s ability to obtain the coaching of counsel to which he does not object, would appear to work no deprivation of the sixth amendment right to the assistance of counsel. Similarly, a narrowly-drawn instruction to counsel that, during a recess, he must scrupulously comply with his ethical obligations and refrain from engaging in coaching would also not seem to deny the assistance of counsel.12

There appear to be four relevant factors to consider in assessing cases that fall between these extremes. First, the length of the recess is important. The Geders holding is limited to a recess that extends overnight and recognizes that the overnight break is typically a time of intense work when counsel and client frequently need to consult about trial strategy. Second, the degree of the restriction placed on attorney-client communication is material. An absolute ban on consultation, as in Geders, in effect deprives the defendant of counsel for the duration of the recess. On the other hand, an instruction against coaching or an admonition not to discuss the defendant’s testimony may frequently be appropriate and does not prevent discussion of trial strategy and other relevant matters. Third, the point in the proceedings when the recess is taken has some relevance. There is a greater interest in restricting communication to prevent coaching during the defendant’s cross-examination than during his direct examination. Finally, whether the defendant or his counsel objected to the instruction and what was said if an objection was raised are highly probative of whether the defendant was deprived of a right to consult with counsel, which he sought to assert.

Turning to the facts of this case, petitioner’s counsel asked the court, near the end of petitioner’s direct examination, if he “could have just a minute,” presumably to collect his thoughts and determine what further questioning he wished to pursue. At that point, petitioner’s co-counsel asked the court if the attorneys could approach the bench. The court responded affirmatively, and a bench conference followed. At the conclusion of the conference the court announced that a “little break” would be taken and remarked that he noticed “a sigh of relief on some faces” in the jury box. The court directed that in view of the “very brief break, petitioner’s lawyers should not discuss his testimony with him. Petitioner and his attorneys raised no objection to this procedure. During the duration of the recess, the court received no indication that petitioner or his counsel desired to consult. The obvious inference to be drawn is that petitioner and his counsel wished to have the short recess and did not mind the restriction on their ability to discuss his testimony. In any event, they considered it preferable to pressing on with the examination uninterrupted. If the court’s instruction denied petitioner an important right that he wished to assert, it was incumbent upon him or his attorneys to bring the matter to the court’s attention.13 Similarly, the failure to raise the matter during the duration of the recess indicates that petitioner and his attorneys felt no need to consult at any point during that time. The complete failure to object is highly probative that no constitutional deprivation of the assistance of counsel occurred. See Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983); Bailey v. Redman, 657 F.2d 21, 24 (3d Cir.1981) (per curiam), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982). When viewed in combination with the relatively short recess and the limited admonition, merely directing counsel not to discuss petitioner’s testimony with him,14 I conclude that there has been no constitutional violation in this case.

In this appeal, petitioner contends that he failed to object because he was misled by the court’s statement that the break would be brief. This argument implies, however, that neither petitioner nor his counsel had matters requiring consultation during a short break. Nor did the fact that the break became extended, if we accept petitioner’s version of the facts, move petitioner or his counsel to ask the court for permission to consult.

Referring to the subsequent incident during petitioner’s cross-examination, which is discussed in Part II.A., supra, petitioner alleges that he there made it clear to the court that he wished to talk with his attorney. He also claims that the denial of his right to consult with counsel during the break taken toward the end of his direct examination led to his impeachment on cross-examination, because he had information that he would have conveyed to counsel that would have prevented the admissibility of the impeachment evidence. Petitioner’s arguments ignore the facts depicted in the record. It is clear that, until the time it became apparent that petitioner was about to be impeached with evidence of his prior burglary conviction, he had exhibited no inclination to consult with counsel. This episode, which is fully recounted in Part II.A., supra, simply had nothing to do with the prior recess taken during petitioner’s direct examination, where the court instructed counsel not to discuss petitioner’s testimony with him.


Although the plurality also concludes that the writ should not issue in this case, I cannot subscribe to the analysis it employs. The plurality analyzes the claim in question and concludes that any restriction on the ability to confer with counsel during any recess results in an unconstitutional deprivation of the assistance of counsel, requiring per se reversal on direct appeal, or per se issuance of the writ on habeas. Thus, at the time the trial judge utters the restrictive admonition, he commits error of constitutional magnitude in all instances.

The Supreme Court has instructed that “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” United States v. Cronic, 466 U.S. at 667, 104 S.Ct. at 2046. The core concern is for the “reliability of the trial process” and “subject[ing] the prosecution’s case to meaningful adversarial testing.” Id. at 667-68, 104 S.Ct. at 2046-47. Under certain circumstances, constitutional error is patent, and the existence of undue prejudice is inherent and self-evident. In those cases, a per se violation is found without further inquiry. The complete denial of counsel is the most obvious example. See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963) (right to counsel necessary to insure fundamentally fair trial). In other per se cases, although the defendant has nominally been provided with or obtained counsel, circumstances are such that he has, in effect, been denied representation. See Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980) (counsel actively represented conflicting interests); Powell v. Alabama, 287 U.S. 45, 53, 56-58, 53 S.Ct. 55, 58-60, 77 L.Ed. 158 (1932) (indefinite appointment of all members of local bar to help defendant and no designation of specific counsel until just prior to trial, if at all). The plurality is, in effect, saying that the type of error claimed in this case presents a likelihood of prejudice equivalent to a case where the defendant suffers a complete denial of assistance of counsel. I cannot agree with the plurality’s conclusion that in every instance where a trial judge restricts communication with counsel during a trial recess a per se constitutional violation results.

Despite its elevation of the claimed error in this case to the highest level of severity, the plurality then concludes that if the defendant or his attorney did not indicate a desire to confer, on the record, the error has not been preserved and is not cognizable in any subsequent federal proceeding.15 The defendant, therefore, can forever waive a right akin to the right to be represented by counsel in the first instance and so fundamental as to justify a per se rule, without any indication that he was aware of the right or intended to waive it. This is a far cry from the presumption against waiver of fundamental rights imposed by the Supreme Court in the context of the sixth amendment right to counsel and from the requirement that a waiver be an “intentional relinquishment … of a known right.” See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). I find the logic of the plurality’s approach inherently contradictory and unsatisfactory.

It would only make sense to adopt a per se rule of reversal in every recess situation involving a restriction on access to counsel if we are confident that all such instances are likely to result in a deprivation of constitutional magnitude. As the Supreme Court has stated, “[t]here are … circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. at 667, 104 S.Ct. at 2046-47. Geders presented such a situation. The trial court, over vigorous objection, erected a lengthy, overnight ban on any consultation, at a critical point in the proceedings. Prejudice was obvious. I would suggest that not every restriction on consultation during trial presents an equivalent likelihood of constitutional harm and justifies a per se rule of unconstitutionality. This case represents a prime example. The examination of the defendant had reached a point where all parties apparently concluded that a brief recess was desirable. The court told petitioner’s counsel not to talk with his client about his testimony. This was apparently agreeable to all of the parties. Counsel’s and petitioner’s actions surely led the court to believe that they wanted to take a break and did not need to consult during the recess. It would be difficult to sustain an argument that petitioner suffered an obvious deprivation of the right to counsel such as was involved in the Geders case. In my view, a claim of this type should be analyzed under all of the relevant facts and circumstances, including the duration of the recess, when it occurred, the degree of restriction on consultation imposed by the trial judge, and whether the defendant or counsel objected to the restriction and what was said if an objection was raised.

One might argue that the plurality opinion at least has the virtue of fashioning an easy-to-apply, bright line rule. I believe that such clarity is illusory. The plurality opinion leaves unanswered several difficult questions and poses several potential problems.

First, the plurality’s analysis would apply in the context of a direct criminal appeal in a federal case, as well as in a habeas proceeding challenging a state conviction. On direct appeal, the plain error rule applies. Fed.R.Crim.P. 52(b). Thus, the defendant’s failure to object, or place on the record an indication that he wished to confer with his attorney, would be of no moment. Plain error is one that is ” ‘both obvious and substantial,’ ” and is more freely noticed in the case of constitutional errors. United States v. Smith, 700 F.2d 627, 633 (11th Cir.1983) (citations omitted). Under the plurality’s characterization of the claim in this case as a per se constitutional error, I would suggest that, were this a direct criminal appeal, we would be required to notice the error and reverse the conviction, despite the fact that, in my view, no deprivation of the assistance of counsel occurred.16

Second, the plurality requires that a defendant make a contemporaneous objection as a prerequisite to claiming the deprivation of assistance of counsel. It is unclear whether this holding is limited to brief trial recesses during the day, or whether it extends to an overnight recess as in Geders, or even to a week-long recess. If it only applies to brief recesses during the day, I fail to glean the principle on which the plurality would rely for this distinction. Thus, if a trial judge enacts a complete ban on consultation with counsel during a week-long recess, and no objection is raised, the claim will not have been preserved.

Third, if during a brief recess, the trial court merely warns counsel to refrain from engaging in any unethical or illegal “coaching,” and an objection is raised, has the trial judge committed constitutional error warranting habeas relief? The plurality seems to hold that a trial judge cannot vindicate the valid interest in preventing coaching with an admonition that restricts, in any fashion, communication between the defendant and counsel, no matter how innocuous the instruction.

Finally, in its closing passages, ante at 1110-11, the plurality hints that trial judges have discretion, albeit very limited, to restrict consultation during recesses, even over an objection. This appears completely contrary to the holding of the opinion. In the same paragraph, the plurality states that trial judges may insure that proceedings are orderly, without unnecessary interruptions and delays. I have studied this paragraph and am at a loss to decipher exactly what guidance the plurality is providing the trial judges of both the state and federal courts.


For the foregoing reasons, I would hold that petitioner was not deprived of his constitutional right to the assistance of counsel. I therefore concur in the court’s decision to reverse the district court’s grant of the writ of habeas corpus. I cannot agree, however, with the plurality’s conclusion that a constitutional error occurred in this case, but is not cognizable, because it was not adequately preserved.

EDMONDSON, Circuit Judge, specially concurring:

In this case, the trial record does not show that the defendant and defense counsel actually desired to confer during the pertinent recess and would have conferred but for a restriction placed upon them by the trial judge. Consequently, the trial record in this case shows no deprivation of defendant’s right to counsel.1 See Bailey v. Redman, 657 F.2d 21 (3d Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982); Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). To the extent Judge Hatchett’s opinion recognizes this, I agree with his opinion. I also concur in the judgment to reverse and to remand. I share, in part, the views expressed in Judge Tjoflat’s concurring opinion, especially Part II.A.; but I speak for myself on two points.





If so-called “coaching” of witnesses means improper attempts to influence the testimony of a witness, I agree that “coaching” of defendants is a valid concern of trial judges; but such improper counseling seems rare. Consequently, concerns about “coaching”, in general, cannot constitutionally support an order barring communication—even bearing on the defendant’s testimony—between a defendant and his lawyer during brief, routine recesses during the trial day in criminal cases. See generally Geders v. United States, 425 U.S. 80, 93, 96 S.Ct. 1330, 1337-38, 47 L.Ed.2d 592, 602 (1976) (Marshall, J., concurring); United States v. Conway, 632 F.2d 641, 644 (5th Cir.1980); United States v. Allen, 542 F.2d 630, 633 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977).

At trial, defense counsel is the adversary of the government prosecutor; but absent clear evidence to the contrary, courts ought to assume that lawyers perform their duties ethically. While suggesting fraud or perjury is unethical,2 there is nothing unethical or, otherwise, wrong with lawyers counseling their clients at every recess concerning the anticipated direction of the prosecutor’s questions and the best manner in which the client can present the facts most favorably to the defense. To the contrary, such counseling is entirely proper.

In criminal cases, judicial orders barring defense attorney-client communications during brief, trial recesses violate the Constitution if that interference has a likely effect on the trial’s outcome. Because such interference entails considerable risk of constitutional error, it is ill-advised and unseemly and ought to be avoided unless expressible, extraordinary circumstances justify it in each particular instance. Briefly stated, the cost outweighs the benefit.





As indicated above, I am of the opinion that orders barring communications (even dealing with the defendant’s testimony) between a criminal defendant and his lawyer during brief, routine trial recesses (including recesses during the cross-examination of the defendant) can violate the sixth amendment if the trial record shows that the lawyer or defendant actually wished to confer during that recess. I believe, however, that such constitutional violations occur very occasionally: not every interference of this sort with counsel’s assistance results in a breakdown in the adversary process that renders the trial’s outcome unreliable. If there is no such breakdown, there has been no sixth amendment violation.3 Although such a breakdown may be presumed in certain extreme circumstances, the facts and circumstances of most cases do not warrant such a presumption.

Accordingly, sixth amendment claims in the context of brief, routine recesses during the trial day ought to be subject to a requirement that the defendant affirmatively assert and demonstrate prejudice as a condition to post-conviction relief.4 See United States v. DiLapi, 651 F.2d 140, 148-49 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982); State v. Perry, 278 S.C. 490, 299 S.E.2d 324, 325-26 cert. denied, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983); cf. Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (interference with counsel by order not to consult with defendant during overnight recess denied right to the effective assistance of counsel). See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (usually sixth amendment claims require defendants to show prejudice); United States v. Cronic, 466 U.S. 648, 662 n. 31, 104 S.Ct. 2039, 2049 n. 31, 80 L.Ed.2d 657 (1984) (fact that accused can attribute deficiency in his representation to the court does not justify reversal absent an actual or likely effect on the trial process).

I disagree with those who think that this standard places an impossible burden on the defendant. Both the Supreme Court and this Circuit have already placed this burden on defendants alleging a myriad of constitutional violations. See Morris v. Matthews, —- U.S. ——, 106 S.Ct. 1032, 1038, 89 L.Ed.2d 187 (1986) (jeopardy barred conviction reduced to conviction for lesser included offense that is not jeopardy barred); United States v. Bagley, —- U.S. ——, 105 S.Ct. 3375, 3381, 3384, 87 L.Ed.2d 481 (1985) (evidence favorable to defendant withheld by government); Wilson v. Kemp, 777 F.2d 621, 623 (11th Cir.1985) (improper prosecutorial argument), cert. denied, —- U.S. ——, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986); Stoner v. Graddick, 751 F.2d 1535, 1546-47 (11th Cir.1985) (delay between crime and indictment).5

Neither am I convinced that this prejudice standard would infringe too much on attorney-client relations. To prove prejudice, truly privileged communications may be neither necessary nor relevant. Standing alone, the circumstances of the pertinent recess and pertinent order can establish prejudice. If in a particular case the circumstances (length of recess, restrictiveness of the order, the point in the trial at which the recess is taken, etc.) are, by themselves, not enough, the defendant seeking review may choose to disclose the intended nature of the barred communication. Even these are communications that never, in fact, occurred; and, thus, the usual attorney-client privilege rules hardly seem to control. Perhaps sometimes, however, privileged communications may be relevant. Although the attorney-client privilege, in particular, and attorney-client confidentiality, in general, are important concerns due genuine deference, courts have never treated them as inviolable. When a defendant has challenged his conviction by asserting an issue that makes privileged communications relevant, he waives the privilege in respect to those communications. See, e.g., Smith v. Estelle, 527 F.2d 430, 434 n. 9 (5th Cir.1976) (whether defendant would have testified but for admission of constitutionally invalid confession).6

We must recall that these challenges are presented to us by persons already convicted of a crime. Those convictions are presumptively valid. See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983); cf. United States v. Bulman, 667 F.2d 1374, 1380 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). The courts remain open to such persons, but it is right that the challengers bear the burden of establishing that their convictions were inconsistent with the requirements of the Constitution.

Many of the brief recesses during a trial day are not critical stages of the criminal proceeding. If the category of sixth amendment cases in which prejudice will be presumed is to be extended to instances of interference with defense counsel during a brief, routine recess, the nation’s highest court should take that step first. Per se reversal rules are not favored. See Rose v. Clark, —- U.S. ——, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Nor should they be. To the extent that United States v. Conway, 632 F.2d 641 (5th Cir.1980), and Judge Hatchett’s opinion mandate per se reversals in this circuit, they are, in my opinion, mistaken. The social costs of crime are too great to allow the proliferation of per se reversal rules.

Q. [Prosecutor] And your father has—I think you testified earlier your father has always given you whatever you need

A. [Crutchfield] Whatever I’ve needed. Yes sir.

Q. [Prosecutor] Now, is the suggestion that you’re making there is that—if I follow the—the logic to it—is that: I had all the money I needed from Dad; therefore, I wouldn’t have to need it to rob the store? Is that what you’re saying?

A. [Crutchfield] No sir. If—if I’ve ever—if I’ve ever needed anything of need, that was of need, and my father saw that it was of need, he would help me with it. But he always made me, you know, work for it and try to strive for it.

Q. [Prosecutor] Okay. We’ve had a lot of testimony about—that you’ve heard—that your father paid a hundred dollars down on your rent and this—you know, your financial needs. What does that have to do with this case? Can you explain that?

A. [Crutchfield] I’ve—I’ve never had—I’ve—I’ve never had to or would have ever robbed any place—for money.

Q. [Prosecutor] That’s the point. Right? We went through all these financial needs that you had because your dad supplies you money; therefore, you didn’t have to rob. Isn’t that what you’re saying?

A. [Crutchfield] Yes sir, I would never have to. Never would.

The Florida appellate court opinion stated:

Appellant’s motion further asserts that “… this turned out to be a rather lengthy recess. The defendant was not permitted to speak with his lawyer for about two hours….”

Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), held that an order preventing a criminal defendant from consulting with his counsel “about anything” during a 17 hour overnight recess, between direct and cross-exam, impinged the defendant’s sixth amendment right to assistance to counsel. But Geders carefully noted that the case did not involve a limited prohibition during a brief routine recess during the trial day. Compare McFadden v. State, 424 So.2d 918 (Fla. 4th DCA 1982). We conclude that in the context of the Rule 3.850 motion in the present case, the limited prohibition imposed does not warrant post-conviction relief.

Crutchfield v. State, 431 So.2d 244 (Fla. 1st DCA 1983) (footnote omitted).

See Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (1981)

As to the second alleged denial of assistance of counsel, although the trial judge expressly instructed Crutchfield to address questions to his counsel, the record does not show that Crutchfield did so. Whether Crutchfield and his counsel did confer without the conference being noted by the court reporter, we do not know. In light of this fact, we take the Crutchfield-judge exchange in the light most favorable to Crutchfield—he was uncertain about the judge’s reply and did not consult with his counsel. His counsel was present, however, and had the ability to clarify any confusion that might have existed. Counsel, for whatever reason, apparently saw no need to intervene. Consequently, if consultation did not take place, we must assume that counsel’s professional judgment was that consultation was unnecessary. We thus conclude, that even read favorably to Crutchfield, this exchange did not actually deprive Crutchfield of assistance of his counsel

The Court suggested, as methods of combating coaching, skillful cross-examination and continuation of examination without interruption until the examination is completed

Petitioner was apparently represented by two lawyers at trial

Although Crutchfield has, at one time, asserted that the brief recess stretched into a two-hour lunch recess, he now concedes that a lunch break took place prior to his taking the stand on the day in question

The trial transcript recites only that a brief recess was taken. Because the district court concluded that any restriction on the ability to confer with counsel during any recess required issuance of the writ, it did not resolve the factual dispute over the duration of the recess

Crutchfield raised two issues in his direct appeal. He contended that the trial court erred in admitting evidence of his prior burglary conviction and erroneously retained jurisdiction over the first one-third of his sentence

Crutchfield apparently raised the following five claims in his Rule 3.850 proceeding: (1) that his sentence violated the equal protection clause of the fourteenth amendment because it was more severe than that received by his codefendant; (2) that the evidence was insufficient to support his conviction; (3) that the trial court erred in denying a severance; (4) that the trial court denied him the assistance of counsel in violation of the sixth and fourteenth amendments by instructing his counsel not to discuss his testimony with him during a recess; and (5) that the trial court erred in admitting evidence of a prior burglary conviction. The record does not contain Crutchfield’s Rule 3.850 motion, but his federal habeas petition and his submissions to this court state that the five claims noted above were raised in the Rule 3.850 proceeding. The State has not disputed this point, and, in its en banc brief, specifically states that all claims have been exhausted

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981

The district court held that claims (1), (2), and (3), see supra note 5, were procedurally barred under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because they could have been, but were not, raised on direct appeal. Petitioner has not appealed from this determination. Because the district court granted relief on claim (4), see supra note 5, it did not address claim (5)

The plurality opinion, ante at 1109 n. 4, assumes that petitioner wished to consult with counsel on this occasion but did not do so, because of confusion over the trial judge’s remarks. The plurality holds that no deprivation of petitioner’s right to the assistance of counsel occurred, however, because his attorneys witnessed the colloquy and said nothing, exercising their professional judgment that consultation was unnecessary. This analysis misses the mark. If petitioner had the right to consult with counsel at that point in the proceedings, while on the stand during cross-examination, his attorneys could not possibly have known about what he wished to consult. Accordingly, they lacked the information necessary to exercise their professional judgment and to “waive” petitioner’s right to consult with counsel, which he was attempting to exercise. In my view, no constitutional error occurred during this incident, because (1) the trial judge did nothing to prevent consultation, and (2) petitioner had no constitutional right to compel the trial judge to declare a recess in the proceedings so that he could consult with counsel

Geders involved a direct appeal from a conviction in a federal case and did not arise in a habeas context

I use the term “coaching” to refer to improper attempts to influence or shape the testimony of the witness. Such a tactic is proscribed by ethical rules and is a perversion of the truth-seeking process

Indeed, requiring the defendant to prove prejudice would be unworkable. First, it would be very difficult for the defendant to show that the trial may have been altered had consultation been allowed. Second, such an inquiry would require that destructive inroads be forged into the attorney-client relationship

In order to avoid invalidating a conviction in the least offensive of these types of cases, the panel in this case and one other circuit have attempted to accomodate the situation by concluding that a constitutional deprivation took place but that a harmless error analysis should be applied. See United States v. DiLapi, 651 F.2d 140, 147-49 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). I believe that a harmless error analysis is unworkable in a case such as this for several reasons. First, the prosecution has the burden of establishing that an error is harmless, see Chapman v. California, 386 U.S. 18, 22-26, 87 S.Ct. 824, 827-29, 17 L.Ed.2d 705 (1967); yet only petitioner and his counsel are in possession of the relevant material facts, i.e., what they would have discussed had they been allowed to consult. Further, as pointed out supra, note 11, such an inquiry is not subject to easy resolution and necessarily penetrates into the heart of the attorney-client relationship

Given the interest at stake and the difficulty in probing the merits of an objection to a court-imposed restriction on consultation with counsel during a recess, see supra note 11, I would not impose a very onerous burden on a defendant who objects to such a restriction. In my view, very little showing would be necessary before the trial judge is required to allow the defendant to consult with counsel during a recess. If a defendant is not willing to be restricted in his communication with counsel during a recess and thus raises an objection, the trial court can consider whether to continue the examination without recess or to take a recess and allow unrestricted consultation

The trial judge in this case did not enact a complete ban on communication, but merely told counsel to avoid discussing petitioner’s testimony with him. Although “not discussing testimony” may be broader than is an instruction against coaching, on the facts of this case I believe the court’s instruction amounted to little more than an admonition to counsel to make certain that ethical standards were complied with during the recess

The plurality states that it has “explored the possibility” that the instruction not to discuss testimony was appropriate because it was narrowly tailored to prevent coaching. It then recites that “the trial court’s solution to its concern about coaching could not take the form of an admonition against Crutchfield consulting with his counsel.” This statement is mystifying because the trial court did not admonish Crutchfield not to consult with his attorney; the court instructed Crutchfield’s attorney not to discuss his testimony with him.

Under this approach, error of constitutional magnitude occurs when the trial judge announces the prohibition, but whether a constitutional claim exists depends upon the presence of some type of indication of a desire to confer. The plurality, in a federal habeas case, thus engrafts its own contemporaneous objection, procedural bar rule to a state or federal trial proceeding

Nor are the problems of the plurality’s approach limited to direct criminal appeals. The following scenario is possible in a federal proceeding collaterally attacking a state or federal conviction. If, at trial, the judge restricts communication between the defendant and counsel during a recess, and no objection is raised, the defendant may allege, in a collateral attack, that his counsel was ineffective for failing to object. Given that, under the plurality holding, the trial judge committed a per se constitutional violation, it would be difficult to argue that counsel’s actions constituted reasonable performance. The question would then arise whether the defendant was prejudiced by counsel’s ineffectiveness. Because the plurality holds that any deprivation of assistance of counsel requires a per se prejudice rule, it would appear that a valid claim of ineffectiveness has been established. Thus, although the defendant could not bring a deprivation of assistance of counsel claim, because of his failure to object, he may have a valid ineffective assistance of counsel claim

In light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the actions of the State of Florida are governed by the sixth amendment right to counsel

See ABA Model Rules of Professional Conduct, Rules 1.2(d), 3.3 & comment to Rule 1.2(d); ABA Model Code of Professional Responsibility Canon 7, DR 7-102(A)(4), (6), (7); Alabama Code of Professional Responsibility Canon 7, EC 7-26 & DR 7-102(A)(4), (6), (7); Florida Code of Professional Responsibility Canon 7, EC 7-26 & DR 7-102(A)(4), (6), (7); Georgia Code of Professional Responsibility Canon 7, EC 7-26 & DR 7-102(A)(4), (6), (7)

This is different from the concept of harmless federal constitutional error; thus, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), does not control

I specifically note that this case comes to us as an appeal by a state prisoner from the denial of federal habeas corpus relief by the district court. In the words of Justice Harlan, “I therefore put aside all other types of cases; in so doing, however, I wish to make it perfectly clear that I am by no means prepared to say that the constitutional issue should ultimately turn upon the nature of the particular case involved.” Estes v. Texas, 381 U.S. 532, 590, 85 S.Ct. 1628, 1663, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring)

For other cases applying a prejudice standard, see United States v. Valenzuela-Bernal, 458 U.S. 858, 867-873, 102 S.Ct. 3440, 3446-49, 73 L.Ed.2d 1193 (1982) (government deportation of defendant’s witnesses; defendant must show testimony would have been material and favorable); United States v. Morrison, 449 U.S. 361, 365-66, 101 S.Ct. 665, 668-69, 66 L.Ed.2d 564 (1981) (agent meeting with defendant without counsel’s consent or presence; defendant must demonstrate at least threat of prejudice); Busby v. Holt, 771 F.2d 1461 (11th Cir.1985), cert. denied, —- U.S. ——, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986), opinion withdrawn in part, 781 F.2d 1475, 1477 (11th Cir.1986) (prosecutor calling coindictee to testify, knowing that he would invoke fifth amendment privilege; defendant must prove prejudice)

For other examples of waiver, see United States v. Miller, 600 F.2d 498, 501-02 (5th Cir.) (criminal law securities case, issue of good faith reliance on attorney’s advice), cert. denied, 444 U.S. 955, 100 S.Ct. 434, 62 L.Ed.2d 327 (1979); Johnson v. United States, 542 F.2d 941 (5th Cir.1976) (validity of guilty plea based on attorney’s advice); Bennett v. Mississippi, 523 F.2d 802, 804 (5th Cir.1975) (waiver of right to appeal); Armstrong v. United States, 440 F.2d 658 (5th Cir.1971) (validity of guilty plea based on counsel’s advice); United States v. Woodall, 438 F.2d 1317, 1324-26 (5th Cir.1970) (en banc) (guilty plea based on counsel’s advice), cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971). See also Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1315 n. 20 (7th Cir.1984) (securities case); Tasby v. United States, 504 F.2d 332 (8th Cir.1974) (defendant claiming attorney coerced him into testifying), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed.2d 826 (1975). See generally Thornburg, Attorney-Client Privilege: Issue-Related Waivers, 50 S. Air L. & Com. 1039 (1985)

Case#14 Smith v. Wainwright

741 F.2d 1248: Dennis Wayne Smith, Petitioner-appellant, v. Louie L. Wainwright, Secretary of Florida Department Ofoffender Rehabilitation, et al., Respondents-appellees
United States Court of Appeals, Eleventh Circuit. - 741 F.2d 1248
Aug. 23, 1984.Rehearing and Rehearing En Banc Denied Oct. 31, 1981
Sondra Goldenfarb, Patrick D. Doherty, Clearwater, Fla., for petitioner-appellant.
Theda James Davis, Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY and HILL, Circuit Judges, and TUTTLE, Senior Circuit Judge.
JAMES C. HILL, Circuit Judge:
1Dennis Wayne Smith appeals to this court from the order of the district court denying his petition for a writ of habeas corpus. We affirm the district court’s judgment in part; however, concluding that Smith should have received a hearing on some of his claims of constitutional error, we vacate in part and remand.
2Smith was tried and convicted in a Florida court on one count of first degree murder in late March, 1976. After a sentencing hearing, the trial judge sentenced Smith to death. Smith appealed to the Florida Supreme Court, which affirmed his conviction in Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). In 1981, Smith filed a motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied this motion without a hearing, and Smith appealed. The Florida Supreme Court affirmed the trial court’s order in part, but remanded for an evidentiary hearing concerning an alleged violation of the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Smith v. State, 400 So.2d 956 (Fla.1982). After holding a hearing, the trial court again denied Smith’s motion, and the Florida Supreme Court affirmed in Smith v. State, 421 So.2d 146 (Fla.1982). On February 9, 1983, Smith filed his petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254.
3The factual background of this case is relevant to several of the issues raised by Smith. The primary evidence at trial against Smith was the testimony of Wesley Johnson, which the Florida Supreme Court summarized as follows:
4After taking part in the murder of John Mitchell Arnsdorff, Wesley Johnson turned himself into the police. Eventually he was charged with two other murders, as well. In the meantime he implicated Smith in the Arnsdorff murder and, accordingly, Smith was indicated for first degree murder. Smith pleaded not guilty and the cause was set for trial. Before its start, Johnson pleaded nolo contendere to the three murders and was to be given concurrent life sentences in return for testimony against Smith, the sentences to be imposed after the testimony.
5Johnson testified to the following: He, Smith and a man named Wagner met at a bar and decided to rob a homosexual in order to obtain money for beer. The three then went to another bar where they met Arnsdorff. On the pretext of giving a party, they invited him to a shack Johnson was staying in. Arnsdorff and Johnson drove in Arnsdorff’s car, Smith and Wagner in Smith’s car. Johnson and Arnsdorff reached the shack first. Smith and Wagner had taken a wrong turn and were late, but Johnson kept Arnsdorff from leaving by showing him some silver casting equipment. When the former two arrived the men drank beer for a short while and then Johnson grabbed Arnsdorff while Wagner threatened him with an ice pick. While Arnsdorff was restrained Smith took Arnsdorff’s wallet, in which there was $6.00, from his car and one of the three removed his wrist watch. They then forced Arnsdorff into the trunk of his own car. Their intention was to abandon him in a remote spot. Wagner and Johnson, in Arnsdorff’s car, were following Smith in his car when they ran into a bridge abutment, flattening a tire. (Throughout the night the three had been drinking heavily.) After an unsuccessful attempt to fix it, the two cars proceeded until the wheel with the flat tire came loose. One of the three opened the trunk and Smith hit Arnsdorff with a tire tool. Wagner then began to stab him with the ice pick. Believing Arnsdorff to be dead they shut the trunk with him in it and went to a gas station. Smith told Wagner to get some gas, which he did. They returned to Arnsdorff’s car and at Smith’s direction, Johnson doused it with gas and set it afire. (Expert opinion that Arnsdorff died from incineration or asphyxiation from smoke caused by the fire had been introduced into evidence earlier.)
6At this point in Johnson’s narration the court excused the jury to allow the defense to renew a pre-trial motion that testimony by Johnson as to a second murder by him and Smith be suppressed. The court denied the motion, as it had previously done, on the ground that the second murder, though separate from the first, was part, just as Arnsdorff’s, of a single transaction, the robbery, and, therefore, relevant to the Arnsdorff murder.
7Johnson then testified that after burning the car he, Smith and Wagner immediately went to a swimming hole. An argument over division of the $6.00 and watch ensued between Smith and Wagner. Smith yelled to Johnson to grab Wagner, and while Johnson held him Smith stabbed him with the ice pick. At Smith’s direction Johnson pulled Wagner into the swimming hole and held him under water to ensure his death. They transported his body elsewhere and buried it.
8Smith took the stand in his own defense. He admitted that he was in the company of Wagner and Johnson on the night of the murder, but claimed that the robbery was their idea. Although he accompanied them to the second bar and left it with them and the victim, he testified that they drove him straight from the bar to his apartment, because he was too intoxicated by beer and drugs to do anything but sleep. That was the last, according to Smith, he saw of them that night. No evidence was introduced by the defense to corroborate the alibi.
9365 So.2d at 705-06 (footnote omitted). We will develop other facts as they become relevant to our opinion.
10Smith contends that the district court erred in refusing to grant him an evidentiary hearing concerning three of his claims for relief—that his counsel rendered ineffective assistance, that the state Rule 3.850 hearing concerning the alleged Brady violation was not full and fair, and that his execution in light of recantations by Wesley Johnson would violate due process.1 Although the legal analysis of Smith’s right to a hearing differs greatly for each claim, we discuss them together because each claim has a common factual basis—the numerous statements of Wesley Johnson. We conclude that, under Thomas v. Zant, 697 F.2d 977 (11th Cir.1983), the district court should have granted Smith an evidentiary hearing on his claim of ineffective assistance of counsel. Given the interrelationship of this issue with the Brady issue, the hearing that must be held will necessarily concern both issues. The district court did not err in refusing a hearing concerning Johnson’s recantations.
11As the quoted excerpt from the opinion of the Florida Supreme Court indicates, Wesley Johnson was the primary witness against Smith. The record2 shows that in early September, 1975, Johnson presented himself to the Polk County Sheriff’s Department and confessed to three murders. He claimed to have killed Caleb McDowell, John Mitchell Arnsdorff (whom Smith is convicted of murdering), and James Wagner. The transcript of Johnson’s statement and the report of the Polk County Sheriff’s Office, dated September 6, 1975, indicate that Johnson told the following story concerning the second and third victims.
12Johnson met Wagner in a bar in Lakeland, Florida. Johnson and Wagner went to another bar, the Green Parrot, where they met Arnsdorff. The three journeyed first to Johnson’s apartment and then to Arnsdorff’s, where Johnson and Wagner robbed Arnsdorff of eleven dollars, tied him hand and foot, and put him into the trunk of his car. Johnson and Wagner promised Arnsdorff that they would drive him into the woods and leave him so that, “if he [had] enough energy,” he could kick out the back seat of the car.
13Johnson and Wagner drove away, but, after leaving Lakeland, they wrecked and the car became stuck in a ditch. Johnson stated that he then opened the trunk and hit Arnsdorff with a jack handle as Arnsdorff begged for mercy. Johnson stated that he stabbed Arnsdorff with the sharp end of the jack and with a knife, while forcing Wagner to watch. Johnson and Wagner then climbed into a second car and drove away. Johnson refused to explain why a second car was with them, although the police asked him to do so. The two drove to a gas station and bought some gas. They then returned to the wrecked vehicle, doused it with gasoline, and set it afire with Arnsdorff in the trunk. This was the extent of what Johnson related concerning Arnsdorff’s murder; he did not mention Smith.3
14On September 8, an officer interviewed Wesley Johnson’s wife, Patricia Johnson. In this interview, she stated that Wesley had told her that both he and Smith had murdered Arnsdorff. Although Smith submitted this statement to us after argument, it is not in our record. Our record indicates that Patricia Johnson had, however, made a previous statement that omitted any reference to Smith.
15On September 10, Patricia Johnson notified the officers that Wesley “wanted to tell the whole story about the three murders.” Polk County Sheriff’s Report at 6. She asked to meet with Wesley. After talking with his wife, Johnson informed the police that he would prefer not to give a statement until his attorney could discuss a plea bargain. He indicated, however, that Smith had been with him on the night Arnsdorff was murdered and “did take part in the same.” Id. Sometime subsequent to this, Johnson apparently came to the agreement he desired4 with the prosecutor and gave a statement implicating Smith. He stated that Smith had been with Wagner and himself on the night of Arnsdorff’s murder and that Smith had actually struck Arnsdorff with the tire jack. Johnson stated that Wagner stabbed Arnsdorff with an ice pick while Smith used the jack handle. Johnson then stated that he could not remember “exactly what happened right at the moment …. we all looked around [and] I stepped up and slammed the [trunk].” Johnson also testified that, after returning with the gas, “[we] got out of the car and Slick’s [Smith] got the gas can. So I poured the gas all over it. And Slick gets back in the car, and what’s his name throwed a match on it.” In response to a clarifying question, Johnson indicated Wagner to be the person referred to as “what’s-his-name.” He also indicated in detail how he (Johnson) doused the car with gasoline.
16As far as we can determine, Johnson made one other pretrial statement relevant to our decision. The trial transcript shows that Johnson sent a note to Smith while both were incarcerated before trial. The note read as follows:
Hey, Slick, how are you doing? Okay? Well, the next time they say court, it’s for real. Just keep cool. You can have Parks called because I made sure he heard me talking about how I done it by myself and it’s like that. Just heard on the news that they, they are going to bring back the chair. Hope I miss it. Well, just stay cool. Jake.
18Apparently, this note indicates that Johnson confessed to another inmate named Parks so that Smith could call Parks at trial to impeach Johnson.
19At trial, Johnson testified that Smith murdered Arnsdorff. Smith’s counsel impeached Johnson with only the note written concerning Parks. The state then called Patricia Johnson in rebuttal to testify that Wesley had made prior statements consistent with his story implicating Smith. Since the trial, Johnson has made numerous sworn recantations of his trial testimony, stating that he lied at trial when implicating Smith and that he committed the crime himself.
A. Effective Assistance Claim.
21In his brief, Smith argues that his trial counsel was ineffective. He lists the following “errors and omissions” at the guilt/innocence phase of the trial:
1. Failure to seek a Richardson hearing and challenge the admissibility of the testimony of Patricia Johnson under the rule of sequestration;
2. Failure to use Patricia or Wesley Johnson’s pretrial statements for impeachment;
3. Failure to interview Smith adequately; and
4. Failure to depose Wesley Johnson before trial.
26Smith also contends that his attorney, during the penalty phase:1. Failed to adduce appropriate mitigating evidence or properly use that evidence in closing argument;
2. Failed to seek jury instructions on reasonable doubt or object to other instructions;
3. Failed to understand the bifurcated proceeding; and
4. Failed to challenge the use of the heinous, atrocious, and cruel aggravating circumstance.
30In Strickland v. Washington, —- U.S. ——, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the test under which we review claims of ineffective assistance. See also Jarrell v. Balkcom, 735 F.2d 1242, 1261 (11th Cir.1984). The petitioner must show both that his attorney failed to render “reasonably effective assistance,” id. at 2064, and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 2068. With some exceptions not applicable here, see id. at 2067; see also United States v. Cronic, —- U.S. ——, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the inquiry is two-pronged. The petitioner must show both ineffective assistance and resulting prejudice.
31In this case, only one of Smith’s claims—that counsel should have more effectively impeached the Johnsons—merits discussion and possible relief. The claimed failure of his attorney to understand the bifurcated proceeding and act as an advocate is related to the failure to impeach issue. The other claims are either unsupported by the record or simply do not merit relief.5
32Counsel’s failure to depose Johnson does not warrant relief or a hearing; given the numerous inconsistent statements made by Johnson and his wife, counsel probably had no need to conduct such a deposition. Had a deposition produced testimony detrimental to Smith, it would have been available to the state as evidence to disprove recent fabrication. (The state Rule 3.850 court held that Smith’s counsel had available all the statements we have set forth above.) We are unable, without an evidentiary hearing, to reach a conclusion concerning ineffectiveness in light of counsel’s failure to cross-examine Wesley or Patricia Johnson by using their pretrial statements, however.6 The district court concluded that the attorney failed to use the statements for a valid strategic reason: he preferred to emphasize Johnson’s plea bargain for impeachment purposes. Without a hearing,7 we cannot hold this to be a valid reason for counsel’s failure to use the Johnsons’ statements not implicating Smith. Use of these statements would have been totally consistent with counsel’s assumed strategy of showing that Johnson implicated Smith only to save himself from the electric chair.
33We also hold that counsel’s failure to use the statements may well have resulted in prejudice under the test in Strickland v. Washington. The entire case of the state, with the exception of plaster casts of a tire track and a shoe print,8 was based on the testimony of Wesley Johnson as buttressed by Patricia Johnson’s testimony during the state’s rebuttal case. When first questioned, however, neither witness implicated Smith: the September 6 statements9 of both witnesses omit any reference to Smith. Only after Patricia Johnson conferred with Wesley on September 10 did Wesley implicate Smith—stating that Smith was involved, but that a plea bargain discussion must occur before he would provide any further information.
34Two conclusions may be drawn from these facts. The first is that Wesley and Patricia Johnson “framed” Smith, as Wesley’s recantations would indicate. This conclusion is supported by the timing and order of the statements, and, to some extent, by Johnson’s admission on September 6 that he locked his first victim in the car trunk and set the car on fire. Smith’s attorney might well have argued that Johnson—who had a history of similar murders—implicated Smith to avoid “the chair,” as Johnson stated in his note. The second, contradictory conclusion is that Wesley simply omitted any reference to Smith for some unknown reason—and later told the truth. This interpretation is supported by Johnson’s suspicious reference to a second car in his September 6 statement without elaborating concerning its source or its driver. Nevertheless, the choice between the two interpretations would have been one the jury could have made either way had they heard the facts. The jury’s choice could well have affected the outcome of the trial.
35The failure of counsel to use the statements to impeach the Johnsons may not only have affected the outcome of the guilt/innocence phase, it may have changed the outcome of the penalty trial. As we have previously noted, jurors may well vote against the imposition of the death penalty due to the existence of “whimsical doubt.” In rejecting the contention that the Constitution requires different juries at the penalty and guilt phases of capital trial, we stated:
36The fact that jurors have determined guilt beyond a reasonable doubt does not necessarily mean that no juror entertained any doubt whatsoever. There may be no reasonable doubt—doubt based upon reason—and yet some genuine doubt exists. It may reflect a mere possibility; it may be but the whimsy of one juror or several. Yet this whimsical doubt—this absence of absolute certainty—can be real.
37The capital defendant whose guilt seems abundantly demonstrated may be neither obstructing justice nor engaged in an exercise in futility when his counsel mounts a vigorous defense on the merits. It may be proffered in the slight hope of unanticipated success; it might seek to persuade one or more to prevent unanimity for conviction; it is more likely to produce only whimsical doubt. Even the latter serves the defendant, for the juror entertaining doubt which does not rise to reasonable doubt can be expected to resist those who would impose the irremedial penalty of death.
38Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir. Unit B 1981), modified, 677 F.2d 20, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). In this case, use of Wesley and Patricia Johnson’s prior inconsistent statements might have created a whimsical doubt that would discourage the court and advisory jury from recommending the death penalty.
39Of course, counsel may have elected to choose another strategy at the penalty portion of Smith’s trial. If he did so, however, the record does not reveal the content of the strategy. For example, in counsel’s closing statement at the penalty phase,10 he evidenced no reasonable strategy. Counsel stated (in full):
40MR. HADDOCK: May it please the Court? Ladies and gentlemen, this is the last time we will be before you. The most trying circumstances, the fact that will be sent back to you will be cumulative of what you have already decided, that the defendant is guilty. Now, with little help except from you—and you are not here to help me, you are here to do the right thing—I have to ask that you take into consideration all of the things that have been said, all of the things that have been admitted into evidence. In particular, consideration to the statements of Dr. Kaplan pertaining to Mr. Smith.
41Weigh those, because they weigh heavily upon everybody in this room. Add them up. If they indicate to you that this man, who has made a statement that you can take or leave—because you have taken and left some of his statements—that he would spend the rest of his life in a penitentiary. Whether this man should die or be given the right to live until, God willing, someday this state will provide a place for him.
42If the state desires to do so, on remand it is free to introduce evidence before the district court showing that trial counsel’s failure to utilize the Johnsons’ statements at either the guilt/innocence or penalty phases of the trial was prompted by reasonable trial strategy.
B. The Brady Issue.
44Smith contended before the state Rule 3.850 court that he did not receive material evidence from the state before trial pursuant to his request under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state court held a hearing and concluded that the requested material was available to Smith’s counsel. Smith now contends that this finding of fact by the state court is incorrect and not entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d) because his trial counsel never testified at the hearing. He notes that the testimony at the hearing indicated that the prosecutor, although he maintained an “open file” policy, could not recall whether the various statements were in the file at any particular time. Smith himself testified that he could not recall seeing or hearing about the statements, except for the statement made after September 10 by Wesley Johnson.
45We do not hold that these circumstances support a finding that the hearing was not full and fair;11 indeed, we see no need to pass on this question. When the district court conducts its hearing on the effectiveness of Smith’s counsel, the inquiry will by necessity involve the availability of the statements. For example, the state might produce Smith’s counsel and introduce his testimony that he did not use the statements because he did not have them. If he did not have them because he did not check the prosecutor’s file, this would constitute ineffective assistance given the content of the statements. But, if the statements were not available, counsel could not use them.
46If the district court should conclude after an evidentiary hearing that the statements were not available to trial counsel, Smith will be confronted with a variation of Catch-22 created in part by 28 U.S.C. Sec. 2254(d). The state could presumably argue that state court’s finding that the statements were available is a historical fact entitled to a presumption of correctness, but that counsel rendered effective assistance under the circumstances because the statements were, in fact, unavailable. Such a situation no doubt results from the difficulties inherent in the administration of justice by means of the writ of habeas corpus. Nevertheless, if this situation arises, the district court should conclude that, under 28 U.S.C. Sec. 2254(d)(3), “the material facts were not adequately developed at the state court hearing,” see Thomas v. Zant, 697 F.2d 977, 980 (11th Cir.1983), and issue the writ under Brady v. Maryland.12 We have no doubt that statements were “material either to guilt or to punishment” under Brady. 373 U.S. at 87, 83 S.Ct. at 1196.
C. Recantations of Wesley Johnson.
48Finally, Smith contends that the district court should also receive evidence concerning the post-trial recantations of Wesley Johnson. A panel of this court recently addressed a similar claim in Drake v. Francis, 727 F.2d 990 (11th Cir.1984). This court vacated the opinion in Drake for en banc consideration, and we recently received briefs and heard oral argument on several issues raised in Drake. We see no need to hold this case pending the decision in Drake, however. We perceive that the panel in Drake accurately stated the law in this circuit concerning claims of newly discovered evidence in habeas corpus proceedings.
49As long ago as 1958, the former Fifth Circuit Court of Appeals summarized the law in this area: “Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality.” Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir.1958), cert. denied, 355 U.S. 864, 78 S.Ct. 98, 2 L.Ed.2d 70 (1957). To be distinguished are situations in which the new evidence bears directly on the constitutionality of the conviction. For example, in Schneider v. Estelle, 552 F.2d 593 (5th Cir.1977), the petitioner claimed new evidence would show that the state had suborned perjury in obtaining a conviction against the petitioner. The court remanded for an evidentiary hearing, holding that the writ should issue if the petitioner proved the allegations of his complaint. Id. at 596; see also Smith v. Florida, 410 F.2d 1349 (5th Cir.1969).
50In this case, we seriously doubt that Smith has alleged subornation of perjury by the state. To prove such a claim, Smith would have to show that the prosecutor or the police officers knew that the testimony of one of the Johnsons was false. Schneider, 552 F.2d at 595; Smith, 410 F.2d at 1350-51. Smith has made no proffer of any evidence supporting such a contention. Absent such evidence, this claim does not warrant habeas corpus relief.
51Smith next contends that Johnson confessed and agreed to testify for the state only because of Johnson’s fear of the death penalty. Smith notes that one of the terms of Johnson’s plea bargain required him to testify before he received his sentence. Smith argues that he should have received an evidentiary hearing on this issue in the district court.
52We have little difficulty accepting the validity of the argument that Johnson entered into his plea bargain agreement with the state and testified against Smith because of the possible imposition of the death penalty. Nevertheless, the district court properly held that this claim affords Smith no basis for relief.
53We have substantial doubt that this claim is one that warrants relief. Cf. United States v. Ballard, 586 F.2d 1060 (5th Cir.1978); Chaney v. Wainwright, 561 F.2d 1129 (5th Cir.1977), 443 U.S. 904, 99 S.Ct. 3095, 61 L.Ed.2d 871 (1979). It is clear that Smith’s attorney cross-examined Johnson and revealed the facts underlying Johnson’s testimony to the jury, which decided whether or not to believe Johnson. We need not consider this issue on its merits, however, because Smith failed properly to raise it under Florida procedure. The Florida courts have refused to address the issue, see Smith v. State, 400 So.2d 956, 959 (Fla.1981); and, absent a showing of cause for failure properly to preserve the issue and resulting prejudice, the issue is barred from review in the federal courts, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976). Smith has shown neither cause nor prejudice.
54At Smith’s trial, the judge allowed Wesley Johnson to testify concerning the facts of a second murder for which Smith was not on trial. (The circumstances and content of this testimony are set forth in the portion of the Florida Supreme Court’s opinion quoted in the introductory portion of this opinion.) The Florida court apparently admitted this testimony on the theory that it constituted part of the res gestae. See Smith v. State, 365 So.2d 704, 706 n. 2 (Fla.1978). Smith contends that the evidence was irrelevant, inflammatory, prejudicial, and inadmissible as a matter of constitutional law.
55In reviewing the disposition of this claim by the district court, we note that “[i]n order for an evidentiary ruling to be cognizable in habeas corpus, it must deprive the state court defendant of fundamental fairness.” Jameson v. Wainwright, 719 F.2d 1125, 1126 (11th Cir.1983), cert. denied, —- U.S. ——, 104 S.Ct. 2355, 80 L.Ed.2d 827 (1984); see also Hills v. Henderson, 529 F.2d 397 (1976). A denial of fundamental fairness occurs when the evidence is “material in the sense of a crucial, critical, highly significant factor.” Id. at 1127. Under this test, the admission of the evidence did not violate the Constitution, although its admissibility under state law presents a close and difficult question. See 365 So.2d at 708 (three Justices dissenting).
56At Smith’s trial, the state introduced the testimony of Patricia Johnson, Wesley Johnson’s wife. (Wesley Johnson was the prosecutor’s essential witness. See supra Sec. I.) The prosecutor called Patricia Johnson to testify concerning prior consistent statements made by her husband in response to Smith’s impeachment. The witness list submitted to Smith before trial by the prosecutor did not include Patricia Johnson’s name, as Florida law requires. In addition, the record shows that Patricia Johnson was present during a portion of the trial that preceded her testimony and was thus in violation of the sequestration rule. Smith argues that the omission of Patricia Johnson’s name from the witness list and the sequestration rule violation compels the issuance of the writ. Smith, however, cites no authority to the effect that these violations are of constitutional dimension. See, e.g., Bronstein v. Wainwright, 646 F.2d 1048 (5th Cir.1981) (state law violations do not usually warrant habeas relief). Assuming that the claim is simply one rooted in the concept of “fundamental fairness,” see Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), we conclude that these violations (if they were violations)13 did not render Smith’s trial fundamentally unfair.
57Dr. Joseph K. Niswonger, a psychiatrist, examined Smith before trial. Niswonger testified that, during the examination, Smith claimed amnesia concerning the events of the murder. The state argued to the jury that this testimony contradicted Smith’s alibi that he did not commit the murder, but was at home “sleeping off a drunk.” Smith now contends that, under the rule of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), Niswonger’s testimony was inadmissible because Niswonger did not read Smith Miranda warnings before conducting the psychiatric examination. See also Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). The state contends that this claim is barred from consideration by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976), and that the claim also fails on the merits. The state’s argument concerning the merits of this claim is correct; we therefore chose not to address the Wainwright issue, which presents a question of law not yet squarely addressed by this court.
58The record in this case shows that the trial court did not appoint Niswonger to examine Smith, as was the case in Estelle v. Smith. On the contrary, Smith retained Niswonger (through his trial counsel) to conduct an examination regarding a possible claim of insanity. In such a case, Estelle v. Smith does not require that the psychiatrist give Miranda warnings.14 The protections of Estelle do not apply unless the psychiatrist is “essentially … an agent of the State ….” 451 U.S. at 467, 101 S.Ct. at 1875.15 Thus, the district court properly denied the writ on this issue.
59After the penalty hearing, the trial judge sentenced Smith to death. Wesley Johnson, in accordance with his plea bargain, received a sentence of only twenty-five years in prison. Smith contends that this disproportionate punishment violates the Constitution given his “lesser culpability” than Johnson. He requests this court to conduct an independent review of the record and grant relief on this issue, citing as support Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). This contention lacks merit. See generally Pulley v. Harris, —- U.S. ——, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Collins v. Francis, 728 F.2d 1322 (11th Cir.1984); Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983), cert. denied, —- U.S. ——, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984); Henry v. Wainwright, 721 F.2d 990 (5th Cir. Unit B 1983), cert. denied, —- U.S. ——, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).
61Smith next contends that the district court should have granted him an evidentiary hearing on his claim that his appellate counsel rendered constitutionally ineffective assistance. We recently described the legal basis for this type of claim in Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.1984), as follows:
Although we address claims of ineffective assistance of counsel on appeal much less frequently than claims of ineffective assistance at trial, it is well established that a defendant has the right to effective counsel on appeal. See Anders v. California, 386 U.S. 738, 741-42, 744, 87 S.Ct. 1396, 1398-99, 1400, 18 L.Ed.2d 493 (1966) (counsel must function as advocate on behalf of client). In order to prevail, Alvord must prove that he did not receive ” ‘reasonably effective representation,’ ” Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.1982) (citing previous cases), cert. denied, [—- U.S. ——] 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983); however, counsel need not provide perfect assistance, id. From the reported cases, it appears that counsel’s failure to file a brief is in most cases ineffective, see Anders; Mylar; however, counsel’s failure to advance errors on appeal later gaining “judicial recognition” does not constitute unconstitutional aid. Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, [—- U.S. ——] 104 S.Ct. 290, 78 L.Ed.2d 266 (1983), and counsel need not brief issues reasonably considered to be without merit, Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir. Unit A. 1981); Hooks v. Roberts, 480 F.2d 1196, 1197-98 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). Alvord contends that the issues not raised by his counsel were of substantial merit. As we stated in Hooks, the best way to evaluate “this question … is to examine the alleged trial errors to see if they contain sufficient merit … that his appellate counsel can be faulted for not having raised them.” 480 F.2d at 1197.
63Id. at 1291. Under the applicable standards, we conclude that Smith’s counsel rendered constitutionally effective assistance and that no evidentiary hearing is required.
64Smith first contends that his counsel should have challenged on appeal the admissibility of photographs of the victim’s body during the penalty phase of the trial. We cannot fault Smith’s attorney for omitting this claim. The photographs were clearly relevant to the case because the state relied on the “heinous, atrocious, or cruel” aggravating circumstance enumerated in the Florida statute. See Fla.Stat. Sec. 921.141(5)(h). The circumstances of the crime as evidenced by the condition of the victim’s body are material to consideration of this aggravating circumstance. In addition, under Florida law, it appears to be settled that such photographs are admissible. See Calloway v. State, 189 So.2d 617 (Fla.1966); Mardorff v. State, 143 Fla. 64, 196 So. 625 (1940).
65Smith next contends that his counsel should have argued that the Florida procedure providing for a bifurcated sentencing hearing is unconstitutional. This contention lacks merit. The Supreme Court specifically upheld this statute in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and we recently rejected this claim in Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir. Unit B 1981), modified, 677 F.2d 20, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).
66Smith argues that his counsel should have challenged the trial court’s decision to admit Dr. Niswonger’s testimony at the penalty phase of his trial. Counsel need not have raised this claim on the basis of the fifth amendment; we have decided above that such a challenge lacks merit. See supra Sec. V. In addition, counsel could reasonably have concluded that Smith had waived the psychiatrist-patient privilege by introducing Dr. Niswonger’s report as to Smith’s sanity into evidence at the competency hearing. See Fla.Stat. Sec. 90.242(b) (providing for waiver of privilege).
67Smith also argues that his appellate attorney wrongly failed to challenge the trial court’s finding of the “heinous, atrocious, or cruel” aggravating circumstance. See Fla.Stat. Sec. 921.141(5)(h). Smith contends that Johnson’s testimony at trial demonstrated that the “participants” thought the victim to be dead after they kidnapped him, transported him a considerable distance in a car trunk, struck him with a tire tool (while he pleaded for mercy), stabbed him with an ice pick, and locked him back in the car trunk. Thus, although the medical reports later showed that the victim died when the participants poured gasoline on the car and burned it, the murderer(s) could not have known they had done anything except destroy evidence. Under Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), Smith contends that this was not a proper case for application for the subsection (5)(h) circumstance. We believe Smith’s counsel could reasonably decide not to raise this issue on appeal.
68Smith next contends that his appellate counsel should have challenged the trial court’s jury instructions, which did not explain that the state must prove the existence of aggravating circumstances beyond a reasonable doubt. See Williams v. State, 386 So.2d 538 (Fla.1980). The district court noted: (1) that trial counsel never requested such a charge, and (2) that the jury never was charged concerning any burden of proof except that of beyond a reasonable doubt. We hold that, under the circumstances, counsel need not have raised this issue on appeal. See Alvord, 725 F.2d at 1292 (instruction never requested); Henry v. Wainwright, 721 F.2d 990, 995 (5th Cir. Unit B 1983) (jury never heard instruction on any other burden of proof), cert. denied, —- U.S. ——, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).
69Finally, Smith contends that his attorney should have requested the court reporter to transcribe the entire voir dire proceedings to determine whether a violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), occurred. This contention is purely speculative; Smith has not shown that, in fact, a violation occurred. Thus, Smith has neither alleged nor proven that the failure of his attorney to raise this issue made any difference whatsoever.
70Smith contends that the death penalty in Florida has been discriminatorily applied on the basis of the race of the victim; he argues that the district court erred in refusing to grant an evidentiary hearing on this issue. The district court acted properly; as the state notes, this issue has been conclusively resolved adversely to Smith. See Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983), application for stay denied, Sullivan v. Wainwright, —- U.S. ——, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983); Wainwright v. Ford, —- U.S. ——, 104 S.Ct. 3498, 82 L.Ed.2d 911 (1984); Adams v. Wainwright, 709 F.2d 1443, 1449 (11th Cir.1983), cert. denied, —- U.S. ——, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984); Washington v. Wainwright, 737 F.2d 922, 923 (11th Cir.1984).
71In this section of his brief, Smith also challenges the use of non-record material by the Florida Supreme Court in reviewing his case. This issue has also been resolved adversely to Smith. See Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc), cert. denied, —- U.S. ——, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).
72Smith also argues that his sentence is unconstitutional because of the trial judge’s faulty instructions to the jury concerning aggravating and mitigating circumstances and because the trial judge misapplied the law concerning the use of the circumstances by relying on an unconstitutional circumstance. Without belaboring this point, we hold that the district judge correctly decided that this claim is barred by a procedural default under Wainwright v. Sykes. Smith contends that he has proffered facts entitling him to an evidentiary hearing on the issue of cause and prejudice, but we disagree. As to the claims concerning restrictions of mitigating evidence, Smith has failed to show prejudice for exactly the reasons enumerated in Ford v. Strickland, 696 F.2d at 812-13. And, as to the claim of reliance on an unconstitutional aggravating circumstance, Smith has failed to proffer any evidence or explanation constituting cause for his failure timely to raise this issue in the state court.
73The judgment of the district court is AFFIRMED IN PART, VACATED IN PART, and REMANDED for proceedings not inconsistent with this opinion.
Q Mr. Johnson, you are putting me in the unique position of asking you a direct question, which I doubt I will get a straight answer from you about it.
MR. CAMPBELL: Now, Your Honor,—
Q When are you lying, then or now?
THE COURT: Mr. Haddock, I don’t want any dialogue of that sort.
MR. HADDOCK: That was a proper question, Your Honor.
THE COURT: Ask a question, but I don’t want dialogue. I don’t want editoralizing.
MR. HADDOCK: Prior to asking any questions, Your Honor, I would like at this time to move for a mistrial in this case because of the unnecessary presentation of evidence over my prior objection out of the absence of the jury pertaining to a separate crime for which this defendant has been individually indicted and upon which there is a separate case before the Court, and upon which the defendant stands the possibility of subsequent trial.
THE COURT: Motion denied.
MR. HADDOCK: This is so horrendous, it’s so prejudicial—
MR. CAMPBELL: How many times do we have to go through the same thing, Your Honor?
THE COURT: Just a moment, Mr. Campbell. Go ahead.MR. HADDOCK: May I finish, Your Honor? This is so horrendous and prejudicial to the defendant’s cause before the jury that I see virtually no way of ever getting it straightened out.
THE COURT: Motion denied.
Q Answer my question, Mr. Johnson.
MR. CAMPBELL: I thought that question was objected to.
THE COURT: You will have to reask the question.
Q Are you telling the truth now or when you testified to the police officers?
A I am telling the truth now.
Q Let me ask you something. Have you ever seen this before [indicating]?
A Yes.
Q What is it?
A That is a confession, I suppose, it’s a note I sent [indicating].
Q Was it written by you?
A Yeah.
Q Signed by you as Jake?
A Yeah.
Q Is that a name you are known by from time to time?
A Yeah.
Q How was it, what was disposed—what was the disposition of this note, if you know?
A It was at a time when I was thinking about cutting him loose.
Q Speak up.
A At a time when I was thinking about cutting him loose.
Q Was it addressed to—did you have it sent to Smitty?
A Yes.
MR. HADDOCK: Your Honor, I would like to introduce this into evidence.
MR. CAMPBELL: No sir, not—
THE COURT: It would be proper to identify it now and introduce it later.
MR. HADDOCK: I think I can introduce it since he is the State’s witness.
MR. CAMPBELL: No sir, you can’t introduce it in the State’s portion of the case.
THE COURT: That’s right. You mean the Court’s witness?
MR. HADDOCK: The Court’s witness.
THE COURT: It will be identified as Defendant’s Exhibit 1. [The purported confession was marked as Defense Exhibit 1 for identification.]
Q Does this note say, can you read that note?
A Do you want me to read it out loud?
Q Read it to the jury, yes.
A “Hey, Slick, how are you doing? Okay? Well, the next time they say court, it’s for real. Just keep cool. You can have Parks called because I made sure he heard me talking about how I done it by myself and it’s like that. Just heard on the news that they, they are going to bring back the chair, I hope I miss it. Well, just stay cool, Jake.”
Q And Jake is you?
A Part-time.
Q That’s right? You are Jake?
A Sometimes.
Q What is your deal with the state?
A 25 to life.
Q How many crimes did you confess to?
MR. CAMPBELL: Judge, that—
A Three.
MR. CAMPBELL: —Your Honor, I don’t have any objection to those related to—no. I withdraw the objection. I believe the answer was three.
THE COURT: That’s correct.
Q And you say what, 25 to life?
A [Nods head.]
Q Were there any stipulations pertaining to that?
A What do you mean, to the sentence?
Q Yes.
A That I testify.
Q Testify to what?
A To the murders.
Q Did it have anything to do with the implication of the defendant here, Mr. Smith?
A Yes.
Q And that was part of the deal?
A That I testify to the murders for the state, yeah.Q And have you been sentenced yet?
A No, not that I know of.
Q Is it your understanding that you will not be sentenced until after you give your testimony?
A Right.
Q Therefore your testimony is based upon your not going to the electric chair, is that right?
A Well, I’m talking, uh, yeah, I suppose so.
Q You are frightened of going to the electric chair, aren’t you?
A Scared to death.
Q Jake, how long had you been drinking before you got involved in this thing?
A Um, off and on during the day.
Q Had you had any narcotics?
A No.
Q Any sort of marijuana or anything other than alcoholic beverages?
A No.
Q How much alcoholic beverages had you drunk?
A That’s hard to say.
Q Well, kind of work on it a little bit, see what you can come up with. It hasn’t been too hard for you to say a lot of other things.
MR. CAMPBELL: Your Honor—
A I’m thinking.
THE COURT: Mr. Haddock, don’t do that.
A Maybe a case before I met up with him.
Q A case of what?
A Maybe three or four six-packs.
Q Four would be twenty, twenty-four beers, is that correct?
A I suppose.
Q Were you drinking short beers or long ones?
A Short.
Q Were you drunk?
A I was feeling all right.
Q How come you said in your deposition you were trying to decide whether you were going to get out and puke if you were feeling all right?
A Well, you know, pretty gross scene is going on.
Q The alcohol didn’t have anything to do with it?
A Not very much.
Q Did you drink, you said something about you may have had some whiskey during this time, I believe, whatever kind of testimony it was you gave to the state?
A Right.
Q So you mixed whiskey with possibly 24 beers in the course of the day?
A Yes.
Q You are just clear-headed as you can be, you remember everything that went on?
A Pretty much so.
Q Are you an alcoholic?
A I don’t know.
Q You drink 24 beers everyday?
A Sometimes more.
Q Sometimes more?
A Yeah.
Q How much do you weigh?
A How much do I weigh?
Q Yes sir.
A About 150.
Q 150?
A I guess about.
Q You don’t know?
A Not really, sir.
Q So you are in a position now—let me see if I have got this straight—of having given testimony against Mr. Smith with the promise from the state that if you did so you, who admit that you were involved in crimes, will get a sentence of from 25 years to life?
MR. CAMPBELL: Your Honor, I don’t think that is the correct statement of the situation. I don’t think the state promised him a thing.
THE COURT: You will have the opportunity to ask questions on redirect.
MR. HADDOCK: Thank you, Your Honor.
MR. CAMPBELL: All right.
MR. HADDOCK: Will you reread him the question to make sure he got it?[The reporter read back the previous question.]
A It’s not 25 to life. It’s a life sentence, whereas on first degree murder I have to do at least 25 years before I am eligible for parole is the type of life sentence I will be receiving. And if I don’t get off then, between now and then, the next 25 years I plan on making parole.
Q Was there additional promises that these sentences would be together instead of one after the other?
A Concurrently, yes.
Q In other words, you would get a concurrent sentence, only one life sentence?
A Yes sir.
Q Any other witnesses other than you and Birdman and Smith?
A Not that I know of, no.
Q So there is just you now and Smith?
A Right.
Q That’s the way it is, isn’t it?
A Right.
Q And you got 25 years if you behaved yourself, and we don’t know what Smith has got, is that right?
A Right.
MR. HADDOCK: That’s all, Your Honor. No further inquiry.
Q Mr. Johnson, you have, have pled no defense to—Mr. Haddock asked you how many crimes you have confessed to and you said three. You have pled no defense to each of those three crimes?
THE COURT: Mr. Campbell, may I see you and Mr. Haddock? [The following conference was held at the bench outside the hearing of the jury:]
1 Smith also asked for an evidentiary hearing on other issues. We will address those claims separately
2 Our record is somewhat unclear concerning some events. For example, it is doubtful that we now have before us all the statements of Wesley Johnson and Patricia Johnson, his wife. See Smith v. State, 400 So.2d 956, 953 n. 1 (Fla.1981) (listing statements). Although we believe our construction of the events to be substantially accurate, on remand the district court may expand the record and correct any misconceptions in our opinion
3 The September 6 statement is relevant to this case for one reason in addition to Johnson’s omission of Smith. In describing his murder of McDowell, which occurred two years before the other murders, Johnson indicated that he also locked the victim in the trunk of a car and set the car on fire after dousing it with gasoline
4 Johnson testified at Smith’s trial that he agreed to plead no contest to the three murders and testify against Smith in exchange for concurrent life sentences. Johnson was sentenced after Smith’s trial
5 For a discussion of the claims regarding erroneous jury instructions and the application of the heinous, atrocious and cruel aggravating factor, see infra section VII (discussing claims in context of ineffective assistance of appellate counsel). Our conclusion concerning these issues does not change in light of the different test for appraising the effectiveness of trial counsel
6 The entire transcript of the cross examination is attached to this opinion as Appendix A
7 A hearing will also be helpful to clarify the record. See supra note 2
8 The tire track matched Smith’s car’s tires; the shoe print matched a pair of shoes Smith owned. Smith explained that he had loaned his car, with the shoes in the back seat, to Johnson
9 Other, more minor, inconsistencies appear among Johnson’s statements. For example, Johnson’s trial testimony cast Smith more as the ringleader than did his statement made after September 10
10 We note that counsel was somewhat confused by the bifurcated proceeding in any event. He repeatedly requested that the judge abandon the bifurcated procedure and use the procedure declared unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)
11 For example, Smith does not explain why he could not have deposed his attorney, even if he was unable to subpoena him. Cf. Birt v. Montgomery, 725 F.2d 587, 590 n. 5 (11th Cir.1984) (en banc) (noting possibility that petitioner could depose witness without passing on sufficiency of state hearing)
12 Smith correctly notes that the state court’s finding was supported by somewhat weak evidence. In addition, the state court did not hold an evidentiary hearing on Smith’s effective assistance of counsel contention, although he requested a hearing
13 The prosecutor explained the omission of Patricia Johnson’s name from the list and her presence in the courtroom by contending that he had not forseen that he would call her as a witness
14 Smith apparently does not contend that all psychiatrists examining all defendants must give Miranda warnings to remind the defendant not to make a statement he later may regret
15 Smith contends that the trial judge’s post-trial order adding Niswonger to the list of state psychiatrists made Niswonger an agent of the state. This contention is without merit. The judge’s revision of the list did not change Niswonger’s de facto status during the examination or at trial.

Case#13 House v. Balkcom

725 F.2d 608 (1984)
Jack Carlton HOUSE, Petitioner-Appellant,
Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee.

No. 83-8368.
United States Court of Appeals, Eleventh Circuit.

February 13, 1984.
609*609 John R. Myer, Atlanta, Ga., John Charles Boger, New York City, Anthony G. Amsterdam, New York University Law School, New York City, Seth P. Waxman, Washington, D.C., for petitioner-appellant.

Mary B. Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Before HENDERSON and HATCHETT, Circuit Judges, and JONES, Senior Circuit Judge.

HATCHETT, Circuit Judge:

Jack Carlton House seeks reversal of the district court’s denial of habeas corpus relief pursuant to 28 U.S.C.A. § 2254.[1] House, who had been sentenced to death for the murder of two 7-year-old boys, asserts that he was denied effective assistance of counsel during all phases of his trial, and that the admission of his involuntarily given confession violated the fourteenth amendment. Based upon the totality of the circumstances, we find House’s counsel ineffective at all stages of trial. We reverse and remand to the district court with directions.


In 1973, Jack Carlton House, a 27-year old father of three, lived in Atlanta, Georgia, with his wife of eight years and his daughters. Although House had a history of alcoholism, he was regularly employed and supported his family. He had no criminal record other than traffic violations. House had completed the seventh grade and scored 77 on his last-completed I.Q. test.

In the early afternoon of April 14, 1973, a white male, identified only as wearing a dark hat, was observed sitting in the parking lot of an apartment complex in northwest 610*610 Atlanta, Georgia. The man, apparently drunk, staggered out of the parking lot between 2:15 and 2:30 p.m.

At about 2:30 p.m., Jack Carlton House, after drinking a half-pint to a pint of 100 proof vodka purchased moments earlier, and wearing a newly-purchased dark cowboy hat, walked down Clairmont Street. On Clairmont Street, 7-year-old Robert Eugene Dunn and his 7-year-old playmate, Johnny Ray Smith, watched House as he staggered down the street. The two boys ran towards House and began making fun of him. Robert’s father called to the boys to leave House alone. The boys returned to the yard as House staggered down the street, but several minutes later they apparently decided to follow him on their bicycles.

At about 3 p.m. that day, a white male, identified as wearing a dark hat, was seen entering the neighborhood woods located on the corners of Mantissa and DeFoor Avenues. A witness observed two boys pushing their bicycles in the same direction that the man had gone. The two boys entered the woods. At some time past 3:30 p.m. and before 4 p.m., an obviously inebriated white male was seen walking away from the direction of the woods. The next day the nude bodies of the two boys were found in the neighborhood woods.

An autopsy report showed that the boys had been strangled and that one of the boys had been sodomized. Their clothing was piled several hundred feet away from the bodies. Their bicycles were found at the entrance to the woods. Police Detective Sgt. Fitzgerald, in charge of the at-scene investigation, canvassed the neighborhood in an attempt to gain information about the crime. An unnamed individual furnished Sgt. Fitzgerald with House’s name. Other individuals described to Sgt. Fitzgerald an inebriated man whom they had seen staggering through the neighborhood.

On Sunday, April 15, shortly before noon, law enforcement officers located Jack House at his mother-in-law’s home in Stockbridge, Georgia. The officers told House they wanted to talk with him because someone fitting his general description had been seen near the scene of a crime. House, in the words of Sgt. Fitzgerald, was “more than happy to cooperate.” House, by his own admission, and by the testimony of other witnesses, was “half-drunk” when he left his mother-in-law’s home.

House was interrogated at the police station for four to five hours. At 12:55 p.m., at the beginning of interrogation, House signed a waiver of rights form. Sgt. Fitzgerald and another detective were present when the waiver form was signed. During the course of the interrogation, other officers entered and left the interrogation room. During the period of interrogation House signed a confession stating that he murdered the two boys.

The trial testimony is sharply divided as to what occurred during the interrogation and how the confession was elicited. At trial, House testified he was taken to an interrogation room where Sgt. Fitzgerald verbally abused and threatened him. House testified he was denied water, called a “little queer-faced bastard,” and told that if he didn’t sign “the report” he was going to have his head blown off. House also testified that Sgt. Fitzgerald grabbed him by the hair of his head and jabbed him in the chest with the butt of a pistol. House further testified that Sgt. Fitzgerald held a gun to House’s head, telling him that he was going to blow his brains out, and then asking, “how did you kill them?” House testified that Sgt. Fitzgerald slapped him, kicked him, and otherwise physically abused him.

Conversely, Sgt. Fitzgerald testified that he never hit House, and that House’s waiver was signed voluntarily and without coercion. Det. McCoy, who was present much of the time, testified that House simply confessed.

Nothing in the record, including the testimony of the police officers, produces a clear indication of when House purportedly indicated that he wanted to confess. It is clear that House stayed in interrogation, without an attorney, throughout a variety of police procedures. Blood samples were taken 611*611 from House at 4 p.m. At 4:30 p.m., the officers took House’s clothing to a laboratory for analysis. The officers also took fingernail scrapings from House at 5 p.m. House testified he requested a lawyer when the interrogation began. The officers deny that House made such a request.

House testified that Sgt. Fitzgerald told him that if he signed the confession, Fitzgerald would not hit or beat him anymore. Following this promise, according to House, he confessed, even though he did not commit the crimes.

According to House, he told the officers he had been drinking most of Saturday morning, that he bought a new black hat, and that he staggered down the street, inebriated. As he staggered along, two boys followed him half-way down the street making fun of him, but he paid the boys no attention and walked on. He then said he turned into the woods near his home because he was too drunk to continue. In the woods he went to sleep on the ground. House testified that his confession ended at this point. He asserts that the portion of the statement dealing with the murder and rape of the boys was fabricated by the police officers and inserted into the confession. House admits signing the confession; however, he testified that he did so because, following his beatings and intimidation, he saw no point in doing otherwise. After signing the confession, the officers took House to the scene of the crime, insisting that he show them where everything took place. House correctly identified where the boys’ clothing had been found, but testified that he was able to do so by following the descriptions given of the site by the officers.

Two days after his arrest, House appeared before a magistrate. Until this time, he had been given no opportunity to make a telephone call. After the magistrate criticized the police officers for not allowing House an opportunity to make a telephone call, the officers allowed House to call his mother. His mother then retained Dorothy Atkins, a local attorney, who had represented the family in small civil matters.

The next day, Dorothy Atkins visited House in the jail. According to her testimony, House immediately began to cry upon seeing her, saying, “please don’t let them beat me anymore.” Dorothy Atkins testified that House kept talking about “the Sergeant” and his great fear of him rather than about the alleged crimes for which he was charged.[2] Dorothy Atkins testified that House had bruises and red marks over his body. Because of House’s fear of remaining in the same facility, Dorothy Atkins waived his preliminary hearing to allow his immediate transfer to the county jail.

Based upon what she had seen, Dorothy Atkins requested that her husband and law partner, Ben Atkins, go to the county jail and see the bruises on House’s body. Although Ben Atkins went to the jail at his wife’s request, he was not representing House at that time, and did not consider himself to be representing House. His sole purpose for visiting the jail was to prepare himself as a potential witness. Ben Atkins also testified at trial and at various habeas corpus proceedings that House indicated to him that he had been beaten, and showed him bruises about his body, including bruises in the groin area.

Pretrial Investigation

After the initial interview with House, Dorothy Atkins telephoned House’s family, asking for their help. She testified that she was “stymied” as to what she should do in preparing a defense. Dorothy Atkins had 612*612 never represented a defendant in a capital case. In preparing for trial, she spoke with House’s mother and his wife. She did not visit the neighborhood in which the crime occurred. She did not attempt to interview the police officers and medical witnesses listed on the indictment. She filed no pretrial motions and made no attempt to obtain discovery from the prosecutor.

Ben Atkins, who initially acted as his wife’s potential witness, became lead counsel at trial. Dorothy Atkins asked her husband, Ben Atkins, to take charge of the case because she considered herself ill-prepared to handle it. She had prepared no defense. Ben Atkins testified that he did not know that he would be lead counsel on the case until two days before the trial began. Perhaps because Ben Atkins did not know that he would be responsible for handling the trial, he interviewed no witnesses, sought no discovery, and did not visit the scene of the crime. Although both Dorothy and Ben Atkins testified that they saw bruises on House’s body when they visited him, neither attempted to take pictures of the bruises nor to call in medical personnel in order to substantiate their existence.

The Trial

At House’s trial the state presented three witnesses who testified that they had seen someone wearing a dark hat and resembling House, drunk and walking towards the woods where the crime occurred. The court interrupted the state’s case to conduct a suppression hearing on the Miranda and confession issues. At that hearing, House testified that he had been beaten during interrogation, that he had requested an attorney, and that he had signed the confession only to stop the beatings. The state introduced policemen who testified to the voluntariness of House’s confession. Ben and Dorothy Atkins testified about the bruises they observed. The trial court found the confession to be voluntarily given and, therefore, admissible.

During the course of the trial, the state presented evidence that a spot of blood found on House’s trousers matched the blood type of one of the murdered boys. The state also inadvertently presented evidence indicating that House’s fingernail scrapings did not match materials found at the murder site. Dorothy Atkins testified at the habeas corpus proceedings that she first heard that a blood sample had been taken from House’s clothing when the state presented its case at trial. Ben Atkins also testified that he was “completely surprised” by this revelation. Other evidence suggests, however, that the prosecution may have given Ben Atkins a copy of the laboratory report immediately prior to trial. In any event, neither Ben nor Dorothy Atkins formulated any defense strategy concerning the blood spot.

During the state’s direct examination of Sgt. Fitzgerald, Ben Atkins, then lead counsel, was not in the courtroom, but outside parking his automobile. Despite this absence, Ben Atkins conducted the cross-examination of Sgt. Fitzgerald, having never heard his direct testimony.

House took the stand in his own defense. On direct examination House presented a free-wheeling narrative covering an incredibly wide range of topics.[3] At the conclusion of House’s testimony, Dorothy Atkins requested that the court postpone the state’s cross-examination of House until the next day so that she could prepare to attend a church “guild meeting.” The trial court, somewhat hesitantly, granted the request. Thus, the state had overnight to prepare for House’s cross-examination.

In the defense case, the Atkinses called five witnesses: themselves and three members of House’s family. Both Atkinses testified as to what they saw when they went to visit House at the jail the first time. 613*613 House’s sister testified that he was a heavy drinker. Judy House, the wife, responding to a question about the evidence of a blood spot on House’s pants, testified that on the morning that the crime occurred, she and House had sexual intercourse. She further testified that her menstrual period was beginning and that she was “spotting,” and that she believed this to account for the blood found on House’s pants. House’s brother testified that House was sexually normal, was not homosexual, and that House was very drunk on the afternoon of the crime. He also testified that House was unbruised and unmarked when the police picked him up for questioning.

During the prosecutor’s closing argument, Ben Atkins was absent from the courtroom for approximately half of the argument.

The jury found House guilty of both murders. After the jury determined House’s guilt, the sentencing phase of trial began pursuant to Georgia’s then new death penalty statute. Neither Ben nor Dorothy Atkins had ever read the new Georgia death penalty statute, and testified to that fact at various times during the habeas corpus process. Both Atkinses were unaware that a separate sentencing stage of trial existed until they were in the middle of it. They prepared no evidence; they prepared no argument.[4] The jury returned a recommendation of death.

Post-Trial Defense

A few days after the trial, Dorothy Atkins received a telephone call from one of the Houses’ neighbors. The neighbor, Bobby Patterson, told Dorothy Atkins that another neighbor, Ruby Ramsey, had attended the trial and heard the state’s evidence showing that the boys had been killed between 3 and 3:30 p.m. Bobby Patterson told Dorothy Atkins that she knew this evidence to be untrue, because both she and Ruby Ramsey had seen the boys alive and well at 5 p.m. Michael Schumacher, an attorney sharing office space with the Atkinses, heard about the telephone call and visited both of the women in order to learn more. Ruby Ramsey told Schumacher that she knew both victims by name, and that she had seen both of them alive just after 5 p.m. Cathy Ramsey, the daughter of Ruby Ramsey, said she definitely remembered seeing the two victims, but could not remember the exact time. She knew she had seen them shortly before 6 p.m.

Schumacher drafted affidavits for the women, intending to submit them in support of a motion for new trial. Despite the potential importance of these recollections, and despite the fact that the Atkinses knew of their existence, the women’s affidavits were never executed, and no motion for new trial was filed based upon this new evidence. Rather, the Atkinses filed a standard motion for new trial taken from a form book. After filing the motion, neither Ben nor Dorothy Atkins appeared in court to argue the motion. Because of their failure to appear, the trial court ordered the Atkinses to show cause why they should not be held in contempt of court. The record does not indicate the disposition of the show cause order.

The Georgia Supreme Court affirmed House’s convictions and sentences. See House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). The United States Supreme Court denied petitions for certiorari and rehearing. House v. Georgia, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976); 429 U.S. 873, 97 S.Ct. 189, 50 L.Ed.2d 154 (1976).

House petitioned for a writ of habeas corpus in the district court. A United States Magistrate received House’s case for evidentiary hearings and recommendation. House amended his initial federal petition 614*614 for habeas corpus relief, adding an ineffective assistance of counsel claim. The magistrate heard the evidence relating to the ineffective assistance claim, including the testimony of two criminal defense attorneys who testified that in their opinion House did not receive effective assistance of counsel during, before, or after trial as judged by the minimum standards of the community. The magistrate also heard evidence showing that House’s wife’s blood type matched the blood type of the spot of blood found on his pants. House’s wife testified that she met Dorothy Atkins in the Atkinses’ office when House’s mother retained her, but that following this meeting, Dorothy Atkins did not contact her before the trial. She also testified that, distraught, she called the Atkinses before the trial, asking whether or not they had developed any evidence. Ben Atkins responded in the negative, but insisted that they would still be going to trial. Before the magistrate, Dorothy Atkins testified that she performed no interview or preparation of the witnesses, other than meeting with House’s wife during a recess after the state had introduced evidence about the blood spot. Both Ben and Dorothy Atkins testified that they had not read the death penalty statute. The magistrate received the stipulated testimony of House’s mother stating that she never met with either of the defense counsel in order to discuss the substantive case, even though she called them several times before trial. House’s mother stipulated that on one occasion she telephoned Ben Atkins to tell him that a man named Michael Pitts had called her home to tell her that he knew who committed the murders and that it was not House.

The magistrate determined that House was denied effective assistance of counsel at all stages in the proceedings. In doing so, the magistrate asserted that, “this court must determine not only whether attorneys were qualified by training and experience to represent an accused adequately, but also whether those attorneys actually performed the services that are reasonably adequate in their defense of the petitioner.” House v. Balkcom, Magistrate’s Report and Recommendation, No. C 78-1471A (1981) (citations omitted). The magistrate then asserted that, “[t]he conduct of attorneys in a capital case calls for strict scrutiny,” (citations omitted) because the death penalty is a different kind of punishment from others that are imposed. Applying those standards, the magistrate concluded that neither Ben nor Dorothy Atkins had afforded House effective assistance of counsel. He recommended that the writ be granted. The case was remanded for reconsideration. The magistrate issued a supplemental report and recommendation, made additional findings, and again recommended that the writ be granted. The district court, after holding supplemental evidentiary hearings, vacated House’s death sentence because of the Atkinses’ gross ignorance of the Georgia sentencing hearing phase of trial. The district court, however, denied the writ of habeas corpus. See House v. Balkcom, 562 F.Supp. 1111 (N.D.Ga.1983). The district court did find that House’s representation during the pretrial investigation “was deficient in certain respects.” House v. Balkcom, 562 F.Supp. 1111 at 1151. The court stated, however, that “these deficiencies have not been shown to have caused [House] actual and substantial prejudice.” House v. Balkcom, 562 F.Supp. 1111 at 1151.


House asserts two issues in this appeal. He asserts that he was denied effective assistance of counsel at the pretrial, trial, and post-trial stages, in contravention of the sixth amendment. He also asserts that his confession was involuntarily given as a result of coercion and force.

A. Effective Assistance of Counsel

Prior to his trial, House contends that his attorneys did nothing more than meet him and speak to some of his family members by telephone. House asserts there was no investigation, no interviewing of witnesses, no preparation of a defense, no discovery, no visiting of the crime scene, and no trial preparation. Additionally, House asserts that the attorneys made little use, if any, of 615*615 evidence garnered from the state’s laboratory reports which tended to substantiate his innocence. He asserts that counsel made even less use of testimony offered by neighborhood inhabitants which tended to show that the boys must have been murdered some time after House was home in bed.

The state of Georgia asserts that the district court’s findings are correct in that no actual and substantial prejudice has been shown based on the allegations of ineffective assistance of counsel.

As both the district court and magistrate recognized, it is well established that a defendant in a criminal trial is entitled to effective assistance of counsel under the sixth amendment and due process clause of the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Effective assistance of counsel, such as will satisfy the requirements of the sixth amendment, is counsel “reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances.” Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir. Unit B 1982) (en banc), cert. granted, ___ U.S. ___, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983). See United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981); Mays v. Balkcom, 631 F.2d 48, 52, n. 1 (5th Cir.1980). In considering the totality of the circumstances, a court looks to the quality of counsel’s assistance from the time of initial retention through the time of appeal. Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983). Additionally, in looking to the totality of circumstances, a court considers that more is required from trial counsel than from counsel whose defendant pleads guilty to the charge. See Herring v. Estelle, 491 F.2d 125, 128 (5th Cir.1974) (reasonably effective assistance is an easier standard to meet in the context of a guilty plea than in a trial). A court must also consider that, although a capital case is judged by the same standards as any other case, “[t]he seriousness of the charges against the defendant is a factor that must be considered in assessing counsel’s performance.” Stanley v. Zant, 697 F.2d 955, 962-63 (11th Cir.1983) (quoting Proffit v. Wainwright, 685 F.2d 1227, 1247 (11th Cir.1982)) (emphasis added).

In the Eleventh Circuit, a defendant convicted in a state court bringing a habeas corpus petition in a federal court ordinarily must show that ineffective assistance of counsel resulted in actual and substantial disadvantage to the course of his defense at trial. Washington v. Strickland, 693 F.2d at 1262. A reviewing court may excuse the prejudice requirement, however, in cases where counsel’s ineffectiveness is “so pervasive that a particularized inquiry into prejudice would be `unguided speculation.’” Washington v. Strickland, 693 F.2d at 1259, n. 26.

From the first moment of the Atkinses’ involvement in House’s defense there is confusion and lack of clarity. Ben Atkins’s memory fluctuates as to exactly when he first learned he would try the case. At the habeas corpus hearings he testified:

Mr. House employed my wife to represent Mr. House and I have the feeling that Mrs. Atkins made very good preparation, I don’t know that. I don’t know how much preparation she did do, but I didn’t know that I was going to try the case until two or three days before the trial date. We discussed it just sort of abstractly, or whatever you want to, if that’s the correct word, but I was not really aware that she was depending upon me to try the case.
On redirect, he testified:

Q. You testified, Mr. Atkins, at some point your wife came to you and asked you to become involved in the direct trial of the case. I believe the term you used is you felt things were getting fuzzy. Do you recall if she stated to you that she did not feel adequate to handle the trial of this case?
A. No, sir, I don’t recall of it.
Q. What did she say to you?
616*616 A. She is not very given to speak modestly, meekly, but I don’t recall if she said she didn’t feel adequate or not. But I have the impression that she wanted me to go into court with her and sit with her while she was trying it and I ended up having to try the case. I’m not positive that that is true. We may have agreed a day or two ahead of time that I would try it instead of her.
The firmest impression made by Ben Atkins’s various comments at different points in the habeas corpus proceedings is that the defense trial strategy was confused, and his involvement in the case was never clearly delineated until the actual start of the trial. Moreover, his comments suggest that his involvement in the case occurred as part of his marital duty rather than because of his commitment to House:

Q. Do you recall how you became an active participant in the case?
A. I don’t know, it began to get kind of fuzzy and rough. She figured both of us ought to go in on it, I think.
Q. Did she ask you?
A. She asked me to appear in the courtroom and try the case.
Q. And did you agree at that time to do so?
A. Are you married?
Q. No, sir.
A. Yes, sir, I agreed.
It is uncontroverted that the Atkinses failed to seek defense witnesses. Even less excusable is their uncontroverted failure to interview the state’s witnesses whom they knew would testify against House. Although the names of the state’s witnesses had been provided, the Atkinses did not attempt to contact them. In fact, the testimony of Ben Atkins, taken during the May, 1980, habeas corpus proceedings, shows the extent to which preparation for trial was lacking:

Q. Prior to the first day of trial, sir, had you interviewed any of the State’s witnesses in this case?
A. No, sir.
Q. Were you aware that the indictment promulgated in this case contained names of certain witnesses on its face?
A. Yes.
Q. Let me briefly go through them, there were several police officers whose names, I believe the record would reflect, were on that indictment. The officers Richard Fitzgerald, Charles Smegal and Douglas McCoy. It is your testimony, sir, that you did not interview those witnesses prior to the first day of trial?
A. That’s correct.
Q. Had you spoken with them on the telephone or any other way short of a formal interview?
A. No, sir.
Q. Now the indictment also contained the names of certain persons from the State Crime Lab, Kelly Fite and Elizabeth Thomason. Had you interviewed those witnesses prior to the first day of trial?
A. No.
Q. Had you spoken with them in any other fashion?
A. No.
Q. The medical examiner, Dr. Robert Steivers was on that indictment, had you spoken with him?
A. No, sir.
Q. And there were several eye witnesses, briefly, T.H. Reed, John Dunn and T.C. England, Thomas Whitfield and James Smith. It is your testimony you had spoken with none of those witnesses?
A. That’s correct.
Q. Do you have any written reports or other documents that reflected interviews with those defendants or those state’s witnesses?
A. No, sir.
Q. Now did you during the trial, apart from on the stand, interview any of those witnesses at any time after the first day’s testimony or at other times?
A. I don’t recall, sir.
Q. Mr. Atkins, had you ever, prior to the first day of trial, been to the scene where this crime is alleged to have taken place?
617*617 A. No, sir.
Q. Had you visited the home of Jack House?
A. No.
Q. Or the home of Mrs. House, Jack’s mother?
A. No.
Q. Did you take in any field trips as it were in connection with the preparation of this case?
A. No.
Q. Prior to the first day of trial had you interviewed Jack House?
A. Yes.
Q. Do you recall the circumstances?
A. It is my belief that I went to see Jack while he was in jail.
Q. On more than one occasion?
A. No, not more than two, if two.
Q. And do you recall how long you were with him on that occasion that —
A. Less than 30 minutes, I guess.
Q. When was the first occasion?
A. Well, I honestly don’t know whether I talked to him in the City Jail. I’m of the firm belief that I didn’t talk to him until he was in the county jail.
Q. Do you remember, sir, how long it was after his arrest that that conversation took place?
A. Less than a month, somewhere. It was several days after his arrest.
Q. And what did you discuss during that interview?
A. Sir, I couldn’t recall.
Q. Did you speak with Judy House, Jack House’s wife at any time prior to the first day of trial?
A. I don’t believe so.
Q. Or Nancy Jones, Mrs. House’s sister prior to the first day of trial?
A. I don’t recall.
Q. Brantley House, the brother of Jack House, did you speak with him prior to the first day of trial?
A. No, sir.
Q. Do you recall any other possible defense witnesses with whom you spoke prior to the day the trial began?
A. Defense witnesses?
Q. Possible defense witnesses?
A. No, sir, I don’t recall.
Ben and Dorothy Atkins sought no discovery from the prosecution or police. They did not know of the blood spot evidence until time of the trial. When the state presented evidence showing the blood was of the same type as one of the dead boys, the Atkinses were unable to present evidence showing that the blood was also of the same type as House’s wife. The failure of the Atkinses to obtain rudimentary discovery is even more incredible upon learning the reasons behind this failure. Dorothy Atkins, questioned at the habeas corpus proceedings, stated:

Q. But, in general, prior to the trial did you make any attempt yourself to obtain the District Attorney’s file in this case?
A. I did not make an attempt that I recall of getting his file. I had discussed the matter but very little because both of us were busy.
Dorothy Atkins’s comments that she was “too busy” to properly seek rudimentary discovery, viewed in light of the fact that she asked for a continuance so that she could attend a church guild meeting, strongly indicates that her priorities were not rooted firmly with her client. She was “too busy” to learn crucial facts relevant to her client and his defense.

The trial court ordered a pretrial psychiatric examination for House. That examination, conducted before trial in June, 1973, revealed that House suffered from schizophrenia. Dorothy Atkins had no knowledge of her client’s participation in such an examination, nor that it was ordered by the court. She learned about the examination during evidentiary proceedings in the district court nearly ten years later.

The Atkinses’ admitted failure to investigate the facts is unconscionable and falls below the level of performance by counsel required by the sixth amendment. In Washington v. Strickland, this court stated that when a lawyer fails to conduct a substantial investigation into any of his client’s plausible lines of defense, the lawyer 618*618 has failed to render effective assistance of counsel. 693 F.2d at 1257. While we do not require that a lawyer be a private investigator in order to discern every possible avenue which may hurt or help the client, we do require that the lawyer make an effort to investigate the obvious. Pretrial investigation, principally because it provides a basis upon which most of the defense case must rest, is, perhaps, the most critical stage of a lawyer’s preparation. See Von Moltke v. Gillies, 332 U.S. 708, 721-23, 68 S.Ct. 316, 322-23, 92 L.Ed. 309 (1948); Powell v. Alabama, 287 U.S. at 57, 53 S.Ct. at 59. In this regard, the Eleventh Circuit has enunciated the rule that effective representation, consistent with the sixth amendment, also involves “the independent duty to investigate and prepare.” Weidner v. Wainwright, 708 F.2d 614, 616 (11th Cir.1983) (quoting Goodwin v. Balkcom, 684 F.2d at 805).

The Atkinses prepared no defense strategy. They filed no pretrial motions, sought no defense witnesses, failed to properly interview even their family-of-accused witnesses, and failed to interview the state’s witnesses. The Atkinses did not visit the scene of the crime. Knowledge of the area may have helped them in preparation of their defense, and certainly would have helped guide House through his direct testimony.

At trial, Ben Atkins offered a haphazardly-constructed defense of impossibility, which was sure to be rejected because he offered no evidentiary support for such a defense. This is especially significant because both state and defense witnesses credit the man in the “dark hat” as being falling-down drunk, and, therefore, with some credible evidence it could have been effectively urged that a person in that physical condition could not effectuate sodomy and double murders. The Atkinses failed to take advantage of significant and possibly exculpatory evidence available from the state’s own scientific tests, i.e., evidence suggesting that the materials resulting from nail scrapings and hair samples taken from House did not match samples taken from the crime scene.

The Atkinses’ conduct during the guilt-innocence phase of trial shows an abysmal ignorance of basic trial tactics. The state of Dorothy Atkins’s trial expertise is clearly shown by the fact that, in the process of interviewing her husband about the bruises he witnessed on House’s body, he had to coach her from the stand.[5]

Even though at least three people, including a police officer, saw House’s bruises, the Atkinses failed to call any of them to the stand, relying instead upon their own testimony. Even more disturbing is what one witness at the hearing characterized as their “lack of concern for the conduct of the 619*619 trial itself.” During the direct examination of Sgt. Fitzgerald, a key witness on the confession issue, Ben Atkins was not present in the courtroom. He returned to the courtroom to cross-examine Sgt. Fitzgerald even though he had not heard the direct testimony. Atkins also left the courtroom during the state’s closing argument. His closing argument to the jury consisted of a short bible verse.

During direct examination, House rambled from subject to subject. Obviously, the Atkinses had not adequately prepared him to give testimony. By Ben Atkins’s testimony, his total time spent with House preceding his direct testimony amounted to only thirty minutes, more or less. Much of that time was of necessity spent with House telling the Atkinses about the beatings, rather than the Atkinses helping House recall facts and structure a logical way to recite the facts before the jury.

The Atkinses presented no evidence at the sentencing phase of trial. Ben Atkins did not realize that there was a sentencing phase of the trial until he was in the middle of it. The district court held, correctly, that the Atkinses were ineffective at the sentencing stage of trial.

The Atkinses failed to file a motion for a new trial based on evidence submitted to them by House’s neighbors. The district court, although not finding counsel ineffective, acknowledged the curiousness of the situation:

Both Schumacher and Mrs. Atkins have testified that they did not pursue the matter because they ultimately decided the Ramsey-Patterson testimony could have been discovered in the exercise of due diligence prior to trial. However, that explanation does not make sense.
House v. Balkcom, 562 F.Supp. at 1132. While it is not the function of this court to second-guess the decisions of counsel as to whether or not counsel should file motions in particular cases, the explanation given here for not doing so has no realistic basis. Bobby Patterson approached the Atkinses because of what she had heard at the recently concluded trial. She could not have come forward prior to trial. Failure to file a motion for new trial based on newly discovered evidence, standing alone, does not automatically constitute ineffective counsel. In the totality of the other failures of the Atkinses, it adds to the already ripe impression that no real representation occurred.

Effective assistance of counsel must not be determined by looking back with hindsight knowledge of what course of conduct would have produced a different result. Rather, all facts must be viewed “from the perspective of counsel, taking into account all of the circumstances of the case, but only as those circumstances were known to [counsel] at the time in question.” Douglas v. Wainwright, 714 F.2d 1532, 1554 (11th Cir.1983) (quoting Washington v. Watkins, 655 F.2d 1346, 1356 (5th Cir.1981)). The failures of counsel on which we focus were for the most part known by counsel.

The district court concluded that the Atkinses’ failure during the guilt-innocence phase of the trial was excusable except in two respects: that Ben and Dorothy Atkins failed to interview the state’s witnesses, and that they failed to discuss with House prior to trial the state’s evidence regarding the blood spot on his pants. House v. Balkcom, 562 F.Supp. at 1137, 1138. Moreover, the district court found that House’s assistance during the sentencing phase of trial was completely ineffective in that neither of the Atkinses had ever read the applicable statute governing the sentencing hearing. While we agree with the district court’s assessment of the Atkinses’ ineffective assistance during the sentencing phase of trial, we are convinced that the Atkinses’ level of representation was far below acceptable levels at all phases of the case. She was retained, they both saw bruises, and they both appeared for trial. Their state of preparation qualified them only as spectators.

In this circuit, a lawyer’s pervasively substandard performance may mandate the granting of a writ of habeas corpus based on ineffective assistance of counsel. 620*620 See Scott v. Wainwright, 698 F.2d 427, 429-30 (11th Cir.1983) (defense counsel’s failure to familiarize himself with the facts and relevant law made him so ineffective that the petitioner’s guilty plea was involuntarily entered); Washington v. Strickland, 693 F.2d at 1257 (when counsel fails to conduct a substantial investigation into any of his client’s plausible lines of defense, the attorney has failed to render effective assistance of counsel); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982) (where counsel is so ill prepared that he fails to understand his client’s factual claims or the legal significance of those claims, counsel fails to provide service within the expected range of competency).

The district court, although recognizing certain deficiencies, found no prejudice. Prejudice is not required where the ineffectiveness of counsel is “so pervasive that a particularized inquiry into prejudice would be `unguided speculation.’” Washington v. Strickland, 693 F.2d at 1259, n. 26. We so hold here. The haphazard nature of the Atkinses’ defense, the failure to develop strategy of any consequence, and absenting themselves from crucial portions of the trial constitutes no representation at all. Given the totality of the circumstances, ineffectiveness of trial counsel has been amply shown.

B. Confession

House also contends that he did not knowingly and intelligently waive his Miranda rights. He asserts that his confession was involuntarily coerced through the use of force. Additionally, because he is a person of low intelligence and little education, House argues it is unlikely that he could have made a knowing and intelligent waiver.

The state of Georgia asserts, on the other hand, that House’s confession was properly admitted at trial because House knowingly waived his rights and signed a waiver form indicating that he did not wish to have a lawyer present.

It is well settled that a coerced or otherwise involuntary confession may not be admitted into evidence. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The district court found that the state court’s findings on voluntariness were presumptively correct pursuant to 28 U.S.C.A. § 2254(d). House v. Balkcom, 562 F.Supp. at 1149.

Because we find that House’s lawyers were so woefully inadequate in the collection, preservation, and presentation of evidence, and because a new trial is required in this case, we leave the confession issue for decision on the record made at the new trial.


Accordingly, we hold that the level of assistance afforded by Ben and Dorothy Atkins on behalf of their client, Jack House, was deficient in that it fell below the minimum level of competence required by the sixth and fourteenth amendments. The case is remanded to the district court with directions to issue a writ of habeas corpus unless the state, within a reasonable time, sets the case for a new trial.


[1] Title 28 U.S.C.A. § 2254 provides, in pertinent part:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.


(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear….

[2] Dorothy Atkins testifies at various points that House was extremely agitated and fearful when she met him. At trial she stated:

The first time I saw him was on the 19th of April. When I introduced myself to him he immediately started crying and saying, `Please don’t let them beat me any more.’


After talking with him and the denial and everything, I advised him the best thing to do under the present circumstances was to go ahead, he wanted to leave that place because he was afraid every instant of the Sergeant, all he knew at this time was the Sergeant….

[3] House’s complete direct testimony is quoted in the district court opinion from which this case is appealed. See House v. Balkcom, 562 F.Supp. 1111, 1155-65 (N.D.Ga.1983). The length of the testimony prevents its reproduction in its entirety, but House’s narrative testimony is striking for its rambling, diffuse presentation, its lack of focus, and the absence of direction received from defense counsel.

[4] Ben Atkins’s argument at the end of the trial, presented in its entirety, was:

MR. ATKINS: May it please the Court, ladies and gentlemen of the jury, any lawyer who finds himself in this position cannot help but feel somewhere along the way there must be something that he could have done to have brought about a different decision, he always does. I must admit I have never been in this position before.

I think there has been enough dramatics already, and all I would like to leave with you for your own sake is, “Vengence is mine, saith the Lord.” Thank you.

[5] Dorothy Atkins’s complete examination of her husband is as follows:

Q. Are you Ben S. Atkins?

A. Yes, I am.

Q. With me representing Jack House?

A. Jack House, yes, ma’am.

Q. Mr. Atkins, did you see him at police court at all?

A. No, ma’am.

Q. Did you see him in the police — City Jail at all?

A. No, ma’am.

Q. Where did you see him first?

A. I saw him out at Fulton Tower in the Fulton County Jail.

DOROTHY ATKINS: This is all I have, just to show that that is the first place he saw and talked to him.

THE WITNESS: Ask me what took place out there, Mrs. Atkins, ask me what took place out there at the jail. [Emphasis added.]

Q. (By Dorothy Atkins) You can state what took place out there. [Emphasis added.]

A. All right. When I got out there to talk to him he told me — what he told me may not be admissible, but he pulled down his breeches, I had him pull down his breeches and show me right in here (indicating) bruised places on his legs and up to his groin. There were several. I didn’t count them, but there were several blue bruised spots there. He also had a round spot right here where he — where he had been punched with something, but it was round, and right here on the chest (indicating). I witnessed that myself and this was some — it was at least five or six days after the Sunday that he said it happened.

DOROTHY ATKINS: Your witness.

Case #12 Goodwin v. Balkcom

Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982) page 820
Goodwin v. Balkcom
684 F.2d 794 (11th Cir. 1982)

Quick Facts  Revisions  Edit

JURISDICTION United States Court of Appeals, Eleventh Circuit
FULL TITLE Terry Lee GOODWIN, Petitioner, v. Charles BALKCOM, Warden, Respondent.
SHORT TITLE Goodwin v. Balkcom
CITATION 684 F.2d 794 (11th Cir. 1982)
DOCKET No. 81-7132
DECIDED Sept. 3, 1982
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*794 794
684 F.2d 794
Terry Lee GOODWIN, Petitioner,
Charles BALKCOM, Warden, Respondent.
No. 81-7132.
United States Court of Appeals,
Eleventh Circuit.
Sept. 3, 1982.
*796 796 Bowen, Derrickson, Goldberg & West, Frank L. Derrickson, Thomas McKee West (court appointed), Atlanta, Ga., for petitioner.

Harrison Kohler, William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent.

Appeal from the United States District Court for the Middle District of Georgia.

Before INGRAHAM * , HATCHETT and ANDERSON, Circuit Judges.

HATCHETT, Circuit Judge:

Terry Lee Goodwin appeals the district court’s denial of his habeas corpus petition challenging his state convictions for murder and armed robbery. The petition alleges, in addition to other things, that Goodwin was denied effective assistance of counsel at his state trial in violation of the sixth amendment, and that the state trial court’s capital sentencing instructions were constitutionally inadequate. Agreeing with Goodwin on these allegations, we reverse and remand.


On Wednesday evening, April 9, 1975, eighteen-year-old Terry Lee Goodwin and seventeen-year-old Brad Studdard played pool at the Snack and Rack Recreation Parlor in Monroe, Georgia. After leaving the poolroom in Studdard’s car about 10:30 p. m., the youths drove to a convenience store to purchase beer. As they drove into the country, they talked, drank beer, and smoked marijuana. Finishing the beer, *797 797 Studdard parked the car along a dirt road to urinate. Goodwin exited the vehicle, pulled a butcher knife from his pocket, and demanded that Studdard give him the car. When Studdard refused, Goodwin marched Studdard into the woods nearby and repeated his demand. Studdard again refused and attempted to flee but tripped and fell to the ground. Goodwin pursued Studdard and stabbed him approximately eighteen times. Goodwin left Studdard in the woods where he died from loss of blood.

Goodwin drove the car back to town and abandoned it near his residence. Sheriff’s deputies discovered the car on Thursday afternoon. On Friday, Goodwin phoned the Studdard residence to inquire about Brad’s disappearance. Although he did not identify himself, Goodwin claimed to be a friend of Brad’s and asked if a reward was being offered. The victim’s sister told Goodwin that money could be raised for information concerning her brother’s whereabouts. Goodwin phoned again later and, claiming to be “John Smith,” told Brad’s sister he had heard something about Good Hope Road (a road near the dirt road where the killing occurred). A local radio station received several calls that same day from Goodwin, again identifying himself as John Smith, asking about a reward, and advising the search party to look near Good Hope Road. At approximately 12:30 a. m. on Saturday, sheriff’s deputies, acting on a tip from an unidentified woman who purportedly overheard Goodwin admit to the killing, went to Goodwin’s house. Goodwin’s mother came to the door and the deputies told her they wanted to talk to Terry. After she let them in, one deputy went into Goodwin’s bedroom and, awakening him, told him “to get up and get your clothes on,” and to accompany them to the station for questioning. He complied.

Upon being advised of his constitutional rights, Goodwin told the deputies that a friend had told him to look for Studdard’s body near the same dirt road where Goodwin and Studdard had stopped on Wednesday evening. On Saturday afternoon, Goodwin accompanied deputies to this location, and the deputies discovered the body. That same afternoon, deputies secured a search warrant for Goodwin’s house and upon executing it, found a bloodstained coat containing items belonging to Studdard. The deputies found the keys to the victim’s car under a rug. When confronted with this physical evidence on Saturday evening, Goodwin confessed to the killing. The next morning (Sunday), deputies returned to the scene of the crime and found the butcher knife across the road from where Studdard’s body had been located.

The Walton County, Georgia, grand jury indicted Goodwin on charges of murder and armed robbery. Because he was indigent, the court appointed him counsel. At trial in the Walton County Superior Court, the defense presented evidence to show that Goodwin’s reduced mental capacity made it impossible for him to knowingly waive his fifth amendment rights prior to confessing to the crimes. 1 The trial court rejected this approach, and Goodwin was convicted of the offenses and sentenced to death. On appeal and mandatory death sentence review, the Supreme Court of Georgia affirmed his conviction and sentence. 2 Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703 (1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2961, 53 L.Ed.2d 1085 (1977).

Represented by different counsel, Goodwin filed an extraordinary motion for new trial in Walton County Superior Court. *798 798 The Georgia Supreme Court affirmed the denial of this motion. Goodwin v. State, 240 Ga. 605, 242 S.E.2d 119 (1978). Goodwin then petitioned the Superior Court of Tattnall County for a writ of habeas corpus alleging that errors of constitutional magnitude rendered his trial fundamentally unfair. The court denied the petition after an evidentiary hearing, and the Georgia Supreme Court affirmed the denial. Goodwin v. Hopper, 243 Ga. 193, 253 S.E.2d 156 (1979).

Having exhausted all available state remedies, Goodwin sought habeas corpus relief in the United States District Court for the Middle District of Georgia under 28 U.S.C.A. § 2254 (1976). The district court 501 F.Supp. 317 ordered Goodwin’s execution stayed pending resolution of the habeas corpus action. The court referred the petition to a magistrate who, without holding an evidentiary hearing, submitted proposed findings of fact and conclusions of law to the district court. Believing the jury instructions regarding the imposition of the death penalty were constitutionally infirm, the magistrate recommended that Goodwin’s death sentence be vacated, but in all other respects, Goodwin’s conviction should stand. 3 Both parties filed objections to the magistrate’s recommendations. The district court adopted the majority of the magistrate’s recommendations, but reached a different conclusion on the jury instructions issue and denied habeas corpus relief. This appeal followed.


On appeal, Goodwin urges us to consider a number of issues which, either standing alone or in conjunction with his predominate claim of ineffective assistance of counsel, require the vacating of his conviction and death sentence. Goodwin contends (1) that he was illegally arrested; (2) that his confession was not the product of a knowing and intelligent waiver of his fifth amendment rights; (3) that four veniremen were improperly excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) that he was denied effective assistance of counsel at his state trial; (5) that the state trial court’s jury instructions shifted the burden of proof to Goodwin and failed to define “capital felony” thus depriving him of a jury adequately guided in its deliberation; (6) that the state trial court’s capital sentencing instructions were unconstitutional because they failed to instruct on the consideration of mitigating circumstances and the option to recommend against death; (7) that his federal habeas corpus petition was improperly denied without the benefit of an evidentiary hearing because the state habeas corpus proceeding did not adequately develop the factual issues in a full and fair hearing; and (8) that the death penalty violates the eighth amendment because it is administered in an irregular and capricious fashion. Addressing only those contentions we deem dispositive of the case, we must decide whether the trial court’s capital sentencing instructions were constitutionally insufficient and whether Goodwin was denied effective assistance of counsel in violation of the sixth amendment. Our resolution of these two issues makes discussion of the other issues unnecessary.


In the sentencing phase of Goodwin’s trial subsequent to the jury’s verdict of guilty on the murder and armed robbery charges, the trial court allowed presentation of evidence of aggravating and mitigating circumstances. The state presented documentary evidence of Goodwin’s 1974 forgery convictions. Goodwin presented no evidence at this phase of the case. Following jury arguments by counsel for both sides, the trial court instructed the jury:

*799 799 Ladies and Gentlemen of the Jury, you having found the defendant guilty of the offense of murder and armed robbery, it is now your duty to determine within the limits prescribed by law, the penalty that shall be imposed as punishment for that offense.

In reaching this determination, you are authorized to consider all of the evidence received by you in open court in both phases of this trial. You are authorized to consider all of the facts and circumstances of the case.

Under the laws of this state, every person guilty of the offense of murder or armed robbery shall be punished by life in the penitentiary or death by electrocution. And under the laws of this state, every person guilty of the offense of armed robbery shall be punished by life in the penitentiary or death by electrocution or by from one to twenty years in prison.

In the event that your verdict is life in prison, the punishment the defendant would receive would be imprisonment in the penitentiary for and during the remainder of his natural life. If that be your verdict, you would add to the verdict already found by you, an additional verdict as follows: “And we fix his punishment as life imprisonment.”

If you decide-excuse me, let me begin again. If you should decide to sentence the defendant for the offense of armed robbery, then the form of your verdict would be, “We, the Jury, sentence the defendant to ‘blank’ years,” and where the court has used the term ‘blank’, you would insert the term of years to which you sentence this defendant for the offense of armed robbery.

You may, however, if you see fit and if that be your verdict, fix his punishment as death for murder, which would require a sentence by the court of death by electrocution.

I charge you that before you would be authorized to find a verdict fixing a sentence of death by electrocution, you must find evidence of statutory aggravating circumstances as I will define to you later in the charge, sufficient to authorize the supreme penalty of the law.

I charge you that a finding of statutory aggravating circumstances or circumstances (sic) shall only be based upon evidence convincing your minds beyond a reasonable doubt as to the existence of one or more of the following factual conditions in connection with the defendant’s perpetration of the act for which you have found him guilty. They are: Number one, the offense of murder was committed while the offender was engaged in the commission of another capital felony.

Two, the offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.

The statutory instructions that you are authorized to consider will be submitted in writing to you, the Jury, for your deliberations. If your verdict should be a recommendation of death, you would add to the verdict already found by you, an additional verdict as follows: “And we fix his punishment as death.” Additionally, you must designate in writing the aggravating circumstance or circumstances which you find beyond a reasonable doubt.

Your verdict should be agreed to by all twelve of your members. It must be in writing, entered upon the indictment, dated, and signed by your foreman or forelady and returned into court for publication.

Now if you fix a sentence for murder, the offense of armed robbery would merge with the offense of murder and you would not need to specify any sentence for the offense of armed robbery.

You could not set a sentence for both offenses of armed robbery and murder, but must select which offense you desire to sentence-to which you desire to sentence the defendant.

You may now retire to the Jury Room, elect one of your number as foreman or forelady, and begin your deliberations. These instructions, by law, are to be sent out by you. At the last minute, I made *800 800 some changes in my own handwriting. And I do not mean to be facitious at this grave stage of this trial, but it might be that you cannot read my writing. And if so, if you will please tell the Bailiff, I will have them typed.

You may now retire to the Jury Room and begin your deliberations.

Goodwin argues that this charge runs contrary to the guidelines established in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion), and Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (plurality opinion), and adhered to by this court’s predecessor in Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978). Specifically, Goodwin contends that these instructions did not adequately focus the jury’s attention on the consideration of mitigating circumstances and the option of recommending a life sentence even if aggravating circumstances were found. 4 According to Goodwin, these inadequacies violate the eighth and fourteenth amendments to the United States Constitution. We review Goodwin’s contentions in light of the standard by which state court jury instructions are judged in federal habeas corpus proceedings. Singular aspects of the charge may not be viewed in isolation. Cupp v. Naughton, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Instead, the federal appellate court must examine the charge as a whole to determine the adequacy of the instructions. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409 (1981); Stephens v. Zant, 631 F.2d 397, 405 (5th Cir. 1980), modified on other grounds on panel rehearing, 648 F.2d 446 (5th Cir. 1981), cert. granted, —- U.S. ——, 102 S.Ct. 575, 72 L.Ed.2d 222 (1982) (case certified to Georgia Supreme Court).

Our resolution on the constitutionality of these instructions is significantly aided by the discussion given this topic in Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981), cert. denied, —- U.S. ——, 102 S.Ct. 3495, 73 L.Ed.2d —— (1982). 5 In Spivey, an almost identical charge was found deficient because it failed to guide the jury in the consideration and understanding of the nature and function of mitigating circumstances. 6 Holding that the eighth and fourteenth *801 801 amendments require clear instructions which do not preclude the consideration of mitigating circumstances, the Spivey panel explained that,

(i)n most cases, this will mean that the judge must clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death; in order to do so, the judge will normally tell the jury what a mitigating circumstance is and what its function is in the jury’s sentencing deliberations.

Spivey, 661 F.2d at 471 (emphasis added, footnote omitted).

The imposition of the death penalty under Georgia’s current death penalty statute has been upheld by the United States Supreme Court. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). In Gregg, the Court approved of Georgia’s revised statute because although “some jury discretion still exists, ‘the discretion to be exercised is controlled by clear and objective standards so as to produce nondiscriminatory application.’ ” Gregg, 428 U.S. at 198, 96 S.Ct. at 2936, quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974). The Gregg plurality further noted that discretion is not fully accorded the sentencer unless it is exercisable in an informed manner. “(W)here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct. at 2932.

Subsequent announcements from the Supreme Court have amplified the constitutional strictures on sentencing instructions. In Lockett v. Ohio and Bell v. Ohio, a plurality held the Ohio death penalty statute unconstitutional because it precluded the sentencer from considering individualized, mitigating factors as required by the eighth and fourteenth amendments. Like the charge in Spivey, Goodwin’s jury was never affirmatively precluded from considering any mitigating circumstances. This is not, however, the extent of our interpretation of Lockett and Bell. The rule from those decisions requires explicit instructions on mitigation and the option to recommend against death. In Chenault v. Stynchombe, the court concluded:

This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell, then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against death.

Chenault, 581 F.2d at 448.

In this circuit, then, the state of the law is well settled. Capital sentencing instructions which do not clearly guide a jury in its understanding of mitigating circumstances and their purpose, and the option to recommend a life sentence although aggravating *802 802 circumstances are found, violate the eighth and fourteenth amendments. 7

After the guilty verdict was recorded, but prior to the receipt of any evidence in the sentencing phase, the court explained to the jury what would occur at this stage of the trial. The court stated:

Now, Ladies and Gentlemen, having convicted the defendant of the offenses of murder and armed robbery, it is necessary that the court resume the trial and conduct a presentence hearing before you, the only issue to be the determination of the punishment to be imposed.

Subject to the laws of evidence, you, the Jury, shall hear additional evidence in extenuation, mitigation or aggravation of punishment, including the record of any prior crimes, convictions or pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior crimes convictions and pleas.

You Jurors shall hear arguments by the defendant or his counsel and the prosecuting attorney as provided by law regarding the punishment to be imposed.

At the conclusion of evidence and argument, the court will give you instructions, after which, you will retire to determine the punishment to be imposed. It will be your duty to fix the sentence within the limits prescribed by law and the court will impose the sentence fixed by you in the way and in the manner you prescribe.

The state contends that the district court was correct when it found the instructions, taken as a whole, would lead a reasonable juror to fully understand the duties and options under the charge considering the statement set out above. We disagree. Even if this explanatory statement can be considered part of the capital sentencing charge-which we seriously doubt it can-it still does not meet the requirements specified in Spivey. The reference to “evidence in mitigation” in no way told the jury what a mitigating circumstance is, nor explained its function in the jury’s deliberation process. Spivey, 661 F.2d at 471.

The Spivey jury instructions were found lacking because adequate guidance as to the function of mitigating circumstances was not provided. That part of the Spivey charge authorizing the jury “to consider all the evidence received by you in open court, and (sic) both phases of the trial … (and) all the facts and circumstances of the case” was held not to be the type of clear instruction that the Constitution requires. Spivey, 661 F.2d at 472. Goodwin’s charge is similarly infected with this insufficient passage. On this ground alone, his death sentence is required to be vacated. The trial court’s charge in this case, however, is doubly fatal. Nowhere does the charge even slightly hint about the option to impose life imprisonment even though aggravating circumstances are found. 8 We agree with Justices *803 803 Hill and Marshall who, in their dissent to the denial of Goodwin’s state habeas corpus petition commented that “the judge did not instruct the jury in any way, even unclearly, about the option to recommend against death as required by Lockett.” Goodwin v. Hopper, 243 Ga. 193, 197-98, 253 S.E.2d 156, 160 (1979) (Hill, J., dissenting).

Because this charge fails to adequately describe the nature and function of mitigating circumstances and lacks any discussion on the option to recommend against death, we hold the charge unconstitutional. 9 Accordingly, Goodwin’s sentence of death must be vacated.


Goodwin claims that his sixth amendment right to assistance of counsel was denied by the ineffectiveness of his court-appointed trial counsel. To bolster this claim, he raises a plethora of allegations regarding the failings of counsel. Goodwin submits that his court-appointed attorneys (1) failed to interview crucial witnesses; (2) failed to effectively challenge the legality of Goodwin’s arrest; (3) failed to challenge grand and petit jury composition; (4) failed to object to Witherspoon violations in the exclusion of certain veniremen; (5) failed to request an instruction on mitigation of circumstances at the sentencing phase and failed to object to the trial court’s failure to give such an instruction charge as required by Ga.Code Ann. § 27-2534.1(b); (6) failed to object to the admission of the records of prior convictions introduced during the sentencing phase of his trial where the state had failed to give notice as required by Ga.Code Ann. § 27-2503; (7) failed to request an instruction regarding Goodwin’s diminished mental capacity, and (8) failed to object to the victim’s family being seated inside the bar of the court. Goodwin suggests that these failings were generated by counsels’ overall attitude concerning their representation of an unpopular client. 10

In response, the state insists that considering the formidable task in representing a defendant accused of brutally stabbing his victim, Goodwin’s appointed counsel rendered reasonably effective assistance. The state cites the interviewing of Goodwin, his mother, and various state witnesses, the availability of the district attorney’s files, visiting the scene of the crime, attempts to plea bargain, the filing of pre-trial motions to quash the indictment and suppress the confession, and the pursuit of a defensive theory that Goodwin was too mentally incapacitated to give a knowing and voluntary confession as examples of the effectiveness of Goodwin’s trial counsel.

We address these contentions in the light of this circuit’s legal standard for reviewing ineffective assistance of counsel claims, noting initially that whether a defendant has been denied effective assistance of counsel is a mixed question of fact and law. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980); Washington v. Watkins, 655 F.2d *804 804 1346, 1354 (5th Cir. 1981). 11 The clearly erroneous rule does not apply to such questions. Baker v. Metcalfe, 633 F.2d 1198, 1201 (5th Cir.), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981). Consequently, a state habeas corpus court’s resolution of this question is not entitled to a presumption of correctness under 28 U.S.C.A. § 2254(d) (1976). Harris v. Oliver, 645 F.2d 327, 330 n.3 (5th Cir. 1981). Therefore, we are not bound by the state court’s finding that Goodwin’s trial counsel rendered effective assistance. We have no real disagreement, however, with the state habeas corpus court’s factual findings on historical matters, that is, findings concerning what counsel actually did in preparation for trial. Here, the state habeas corpus court entered such findings after full and fair consideration of the issue in the state habeas corpus proceeding. 12 This eliminated the need for an evidentiary hearing in the district court. West v. Louisiana, 478 F.2d 1026, 1031-32 (5th Cir. 1973), panel opinion aff’d and adhered to in relevant part, 510 F.2d 363 (5th Cir. 1975) (en banc). As stated in West :

Where state factfinding procedures are adequate, comity and judicial economy dictate that the federal courts should not hold separate evidentiary hearings. To hold a federal hearing is to call state factfinding procedures into question. But comity does not govern the application by federal courts of their independent judgment as to federal law. That is their obligation in all cases….

West, 478 F.2d at 1032.

As to the historical, or primary factual findings made by the state court, section 2254(d)’s presumption of correctness is appropriate in a federal habeas corpus proceeding. Mason v. Balcom, 531 F.2d 717, 722 (5th Cir. 1976). Accordingly, we accept the historical findings made by the state court concerning what Goodwin’s trial counsel did to prepare for his trial. This acceptance, however, does not limit our examination of the state habeas corpus transcript for its revelations of trial counsel’s inactions and the reasons therefor. We apply our own judgment to decide whether the actions taken in preparation and investigation of Goodwin’s defense were “so minimal as to constitute ineffective assistance.” Baty v. Balkcom, 661 F.2d 391, 394 n.7 (5th Cir. 1981).

A. Standard for Effective Assistance of Counsel

The oft-cited constitutional standard by which counsel’s assistance is evaluated is well established. The sixth amendment, through the fourteenth, entitles a state criminal defendant the right to counsel reasonably likely to render and rendering reasonably effective assistance. See, e.g., Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981); Nelson v. Estelle, 642 F.2d 903 (5th Cir. 1981); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). Effective assistance does not mean errorless assistance, nor counsel judged ineffective by hindsight. See, e.g., United States v. Burroughs, 650 F.2d 595 (5th Cir. 1981); Clark v. Blackburn, 619 F.2d 431 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). “Rather, the methodology for applying the standard involves an inquiry into the actual performance of counsel conducting the defense and a determination of whether reasonably effective assistance was rendered based upon the totality of circumstances and the entire record.” Nelson, 642 F.2d at 906 (emphasis in original). See also, United States v. Gibbs, 662 F.2d 728 (11th Cir. 1981) (determination must come from entire record rather than specific actions). In applying this standard, no distinction is to be drawn between retained and appointed counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

*805 805 Every case involving a constitutional claim of ineffective assistance of counsel turns on the facts and the conduct of those involved. King v. Beto, 429 F.2d 221, 222 n.1 (5th Cir. 1970). While counsel’s performance need not be errorless, it must “fall within the range of competency generally demanded of attorneys in criminal cases.” Mylar v. State, 671 F.2d 1299, 1301 (11th Cir. 1982). See also, Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981). The determination of whether the assistance rendered by counsel is reasonably effective, however, is not to be based solely upon his performance at trial. Consideration of the “totality of circumstances” encompasses the quality of counsel’s assistance from time of appointment or retention through appeal. At the heart of effective representation is the independent duty to investigate and prepare. “(C)ounsel have a duty to interview potential witnesses and ‘make an independent examination of the facts, circumstances, pleadings, and laws involved.’ ” Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir. 1979), quoting Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948). Thus, “(a)n attorney does not provide effective assistance if he fails to investigate sources of evidence which may be helpful to the defense.” Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir. 1979), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980). “(T)he cornerstones of effective assistance of counsel” are the “(i)nformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).

The assistance rendered may be deemed ineffective although the proceedings were not a farce or a mockery. Herring, 491 F.2d 125, 128 (5th Cir. 1974). Nevertheless, federal habeas corpus relief is proper only where a showing of prejudice accompanies the initial and distinct determination of ineffective assistance. This is true even in those cases where counsel’s preparation and investigation have been adjudged woefully inadequate. Washington v. Watkins, 655 F.2d 1346, 1356. Turning now to the specific contentions, we address them in sequence.

B. Assistance Rendered by Goodwin’s Trial Counsel

1. Counsel’s General Attitude

To better understand the reasons for trial counsel’s ineffective preparation, investigation and handling of this case, an examination of the testimony presented to the state habeas corpus court and comments made during trial is revealing. The Walton County Superior Court appointed counsel and co-counsel to represent Goodwin. Addressing the jury during opening argument and again in the sentencing phase of trial, both counsel and co-counsel alerted the jury to the fact of their appointed status. 13 Counsel justified the reasons for doing so in his state habeas corpus deposition:

Q. I notice that either you or (co-counsel) in your argument made it clear to the jury that you were appointed.

A: Yes, sure.

Q: Why did you do that?

A: Well, you have to live out here.

Q: I’m not sure I understand, sir.

A: Well, as I say-if you’re not a country boy-you live in the community and you get a reputation of representing, I got that around here for a *806 806 while, of representing everybody that killed somebody. Well, they don’t like you. They don’t realize that everybody’s entitled to a defense. It’s just human nature, I suppose.

The state interprets the references to appointed status as nothing more than a legitimate trial tactic aimed at soliciting sympathy from the jury. This interpretation is difficult to accept in light of the reason given by trial counsel. Goodwin, on the other hand, submits that this type of attitude explains why counsel failed to challenge the composition of the grand and petit juries, neglected to object to Witherspoon violations, and failed to object to the use of leading questions by the prosecution. We tend to agree with Goodwin, but our reasoning goes further. Admitted concerns over community ostracism do more than inhibit a lawyer’s actions at trial where his performance is visible by fellow citizens. An attitude such as this impairs the vitality of investigation, preparation, and representation that all clients deserve, indigent or otherwise. Fears of negative public reaction to the thought of representing an unpopular defendant surely hamper every facet of counsel’s functions. Moreover, reminding a jury that the undertaking is not by choice, but in service to the public, effectively stacks the odds against the accused. Although we deplore the sentiments expressed by Goodwin’s trial counsel, we cannot overemphasize that the culpability of counsel is not the issue. Rather, our concern centers on the sixth amendment right of the defendant.

Goodwin asserts that his trial counsel’s attitude and concerns over community pressure prevented him from challenging the composition of the grand jury pool and the composition of the petit jury pool. In response to inquiry from Goodwin’s present counsel in the state habeas corpus proceeding, trial counsel explained why such a challenge was not considered.

Q: Why didn’t you file a challenge to the composition of the grand jury?

A: I didn’t think it would be to any avail.

Q: What do you base that opinion on?

A: I suppose its because I’m a native of this part of the country and I just don’t think about the thing.

Q: What do you mean? Do you think that the grand jury was properly composed with a sufficient number of blacks and women and so on?

A: At that time?

Q: Yes.

A: I suppose I thought that’s what it was, yes.

Q: You suppose you thought it was?

A: Subsequent events have proved that it wasn’t.

Q: What led you to believe that it was at that time?

A: Just my knowledge of the people. I didn’t give any thought to how many blacks and how many women and that sort of thing.

Q: Have you ever filed a challenge to the composition of the grand jury before, in other cases?

A: No.

Q: Has that ever been done in this county?

A: Not until six months after the Goodwin trial.

Q: That was in a civil case, I believe?

A: Yes.

Q: Why haven’t jury challenges been filed before, do you know?

(District attorney): I object. That’s calling for speculation.

THE WITNESS (trial counsel): I can’t answer that, unless its like I said while ago; you live here, you know everybody. And when you know somebody pretty well, you’re very glad to get them on jury except in this particular case it didn’t work out so well.

Q: Would you have felt any pressure in the community if you had challenged the composition of the jury?

A: Its possible. I mean, that’s speculative.

Q: Do you remember we had a conversation earlier in which you stated that *807 807 there would be that kind of community pressure if you challenged the jury?

A: I think there would be. But as I said, I don’t know. Just like I told you while ago, the school kids were wanting to know why I was taking that Terry Goodwin case. The parents told me about it later on. I mean, that sort of thing goes on in this community, any community in the South.

Q: So the same reason that you wanted people to know that you were appointed in the case would lead you not to challenge the jury?

A: Sure.

In Jones v. Brooks, No. 75-52 (M.D.Ga. Mar. 29, 1976), the plaintiff class of black men and women of Walton County brought suit against the jury commissioners claiming underrepresentation on juries in violation of the thirteenth and fourteenth amendments to the United States Constitution. In response to the district court’s order to show cause why relief should not be granted, the jury commissioners furnished the court and counsel for plaintiffs copies of new and revised grand jury and traverse jury lists. Because blacks and females were underrepresented on voter registration lists in Walton County, the jury commissioners, utilizing a number of methods aimed at discovering the names of black and female citizens in the county, supplemented the jury lists with the names of black and female citizens not found on the voter registration lists. The ratio of blacks and females on the revised list was more statistically in line with the population breakdown reported in the 1970 census. Advising the district court that they intended to continue using procedures which facilitated proper representation of blacks and females on future jury lists, the plaintiff class acknowledged their satisfaction.

The facts established in Jones v. Brooks indicate the amount of minority representation in the grand and petit jury pools in Walton County at the time Goodwin was indicted and tried. According to the 1970 census report, 27.7% of the Walton County population were black and 52.4% were female. Of the thirty grand jurors summoned in February, 1975, the term in which Goodwin was indicted, twenty were white males (66.7%), two were black males (6.7%), and eight were white females (26.7%). Of the 108 people summoned for criminal jury duty in August, 1975, the month of Goodwin’s trial, ninety-eight were white (90.7%), ten were black (9.3%), eighty-three were male (76.85%), and twenty-five were female (23.5%). Thus, the disparity between the female population of Walton County and those on the grand jury list was 25.7%, and 29.25% with respect to the petit jury list. The disparity between the black population of Walton County and those on the grand jury list was 21%, whereas an 18.44% disparity existed with respect to the percentage of blacks on the petit jury list. 14

In Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the Supreme Court reiterated the requirements for proving discrimination in grand jury selection within the context of an equal protection argument. Drawing support from earlier cases, the Court summarized the process:

Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied…. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand *808 808 jurors, over a significant period of time…. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports that presumption of discrimination raised by the statistical showing…. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.

Castaneda, 430 U.S. at 494-95, 97 S.Ct. at 1280 (citations omitted). The record, through the statistics adduced in Jones v. Brooks and those prepared by Goodwin in connection with his habeas corpus petition in state court, indicates that a prima facie case of discrimination in grand jury selection, violative of the equal protection clause of the fourteenth amendment, could have been established, and in the absence of a showing of no discriminatory intent by the state, relief would have been granted. It is undisputed that women and blacks are a recognizable, distinct class under the first element of the prima facie test. United States v. Perez-Hernandez, 672 F.2d 1380, 1387 (11th Cir. 1982). Moreover, the statistics disclose racial and gender disparities existing in Walton County juries over a significant period of time, and therefore satisfy the second criteria of disproportionate representation. 15 The Supreme Court has never fashioned precise guidelines for gauging disparate representation. See Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972). Nevertheless, Supreme Court and former Fifth Circuit precedent provide some guidance as to the magnitude of disparity needed to establish a prima facie underrepresentation claim. The variance here is sufficiently disproportionate to fall within the approximate boundaries delineated in those cases holding that statistical disparities establish prima facie violations. See, e.g., Hernandez v. Texas, 347 U.S. 745, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (14%); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970) (13.3%). Finally, as the outcome of Jones v. Brooks indicates, the selection procedure utilized by Walton County officials prior to, and at the time of Goodwin’s trial was susceptible to abuse. The county officials, in effect, conceded the racial inequalities in their system and took action to correct the imbalance.

To excuse Goodwin’s failure to timely challenge the composition of the grand and petit jury pools at this late day, the cause and prejudice requirements of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), must be satisfied. The state maintains that Goodwin has demonstrated neither the cause of, nor the prejudice resulting from this inaction. In Francis, the Supreme Court held that where a state prisoner fails to make a timely challenge to the composition of the grand jury that indicted him and his right to do so has been waived under state law, he can collaterally attack the unconstitutional composition in federal court only if he can show *809 809 both cause for failing to make the challenge and actual prejudice resulting therefrom. 425 U.S. at 542, 96 S.Ct. at 1711. Applying the state law in effect at the time of Goodwin’s trial as directed by the Francis Court, failure to raise any objection to the composition of the grand or petit jury at or before trial constitutes a waiver of the right to challenge the composition of those juries. 16 Because Goodwin waived his right to challenge the composition of the grand and petit juries under state law, normal procedure would require us to determine whether he has demonstrated both cause and actual prejudice. Goodwin, however, argues that the state’s reliance upon Francis v. Henderson is misplaced and explains that his argument attacking the alleged unconstitutional composition of the juries was not raised as a substantive issue. Rather, Goodwin stresses that the argument is an element asserted for the purpose of bolstering his claim of ineffective assistance of counsel.

Accordingly, Goodwin does not assert the merits of this argument in an attempt to seek relief thereunder. 17 Moreover, the State of Georgia has never had the opportunity to rebut Goodwin’s apparently prima facie case. For these reasons, we refuse to grant substantive relief on this claim. We address the merits, however, within the framework of Goodwin’s sixth amendment allegation as representing an example of trial counsel’s ineffective assistance. *810 810 Combined with trial counsel’s other failings discussed herein, his reasons for not challenging the composition of the grand and petit juries reveal the assistance he was “reasonably likely” to render. We disagree with the state’s interpretation of trial counsel’s testimony as indicating “a conscientious and studied decision not to file a jury challenge.” On the contrary, we view trial counsel assertions as indicating a divided allegiance. These assertions exhibit the lack of vitality attributed to Goodwin’s defense and strongly suggest the location of his loyalties. Our adversarial system of justice will be quickly eroded if attitudes such as the one evinced by Goodwin’s trial counsel are allowed to dictate when action on behalf of an accused is to be undertaken.

2. The Failure to Interview Crucial Witnesses

In this capital murder case, Goodwin’s trial counsel failed to interview at least five prosecution witnesses who testified at trial. Among the five were the deputy who took Goodwin from his home in the early morning hours, the victim’s sister, and three other witnesses, all of whom entered incriminating statements against Goodwin. Deputy Nathaniel Rakestraw testified at trial that he met with another deputy, Livingston O’Kelly, the evening before Goodwin was taken to the station house. Rakestraw explained why he went to Goodwin’s house:

Q: All right. Where were you when you got that information?

A: I was at the shopping center. I met Deputy O’Kelly out there at the shopping center.

Q: All right. And what information did he give you concerning the defendant?

A: He told me that a lady had told him that she was walking past a bunch of boys in a group talking and Terry Goodwin was one of them. And she heard him make the statement he had killed a man and left him down near Social Circle.

Acting on this information, Rakestraw then went to Goodwin’s residence and brought him in for questioning.

In the state habeas corpus proceeding, trial counsel stated that these deputies were never interviewed because the files containing their statements were made available to him by the sheriff of Walton County and by the prosecution. Hence, he saw no need to challenge them. Deputy O’Kelly was not called upon to testify at trial. Counsel confirmed this in response to questioning by Goodwin’s state habeas corpus counsel.

Q: Okay. Do you remember whether or not you talked to an Officer O’Kelly?

A: I don’t believe I interviewed him, no. I know O’Kelly very well. He’s deputy sheriff. If I remember correctly, that may be the one that Goodwin was supposed to-some woman told O’Kelly that Goodwin had said that he committed this crime.

Q: But you did not talk to Officer Rakestraw?

A: I don’t recall it.

Q: Okay. Did you talk to office O’Kelly? You may have already answered this. Did you talk to O’Kelly about this case?

A: I don’t remember.

Q: Do you think that you probably did?

A: I talked to him yeah. I didn’t have any formal interview that I can remember.

Q: Okay. How did you find out that Officer O’Kelly had talked to a woman about it?

A: One of the deputies told me.

Q: Who was that that told you?

A: I don’t remember that.

Q: Did you find out the name of the woman that had told Officer O’Kelly?

A: I never did learn that.

Ed Mitchell, a listed potential prosecution witness who testified at trial, was not interviewed. While visiting Mitchell at his home some two weeks before the killing, Mitchell claimed that Goodwin, without provocation or apparent reason, impetuously remarked, ” *811 811 I oughta kill somebody and take their car.” Mitchell testified that he considered Goodwin to be kidding, and did not pay much attention to the statement. As for Mitchell’s testimony, trial counsel thought it unnecessary to challenge its veracity. He explains:

Q: Let’s get over to some of those other witnesses that testified. One of the black boys you talked about, I believe, was Ed Mitchell?

A: Yeah, he testified at trial.

Q: Were you able to talk to him prior to trial?

A: No.

Q: Was he on the list of witnesses that you were given from the state as a potential prosecution witness?

A: I think he was.

Q: Okay. Now, he made a rather, if I remember, a rather damaging statement at trial. I believe that it was to the effect that he-

A: Told him he was going-

Q: Terry had told him that he was going to kill and rob some boy that operated the pool hall. When did you first find out that Mitchell was going to testify to that?

A: I think I read his statement in the police files, in the deputy sheriff’s files.

Q: Okay. In Mitchell’s written statement that you saw-I believe you said that this was part of the statement the DA turned over to you, you were able to see?

A: They made it available to me. I didn’t take copies of it, but I read them.

Q: In that statement, did Mitchell say that Terry had said what he testified to at trial?

A: Yes.

Q: Why didn’t you go out and talk to Mitchell about that statement prior to trial?

A: I didn’t think it was necessary.

Q: Do you think that Mitchell had any ulterior motive in testifying to the police?

(District attorney): Object to that. I think its’s just speculation.

THE WITNESS: I couldn’t say. I never believed any of them, any of those colored boys, because it seemed like, appeared at the time, that they were doing that to help themselves with the sheriff.

Trial counsel also did not interview Benny Cooper, a listed potential prosecution witness whose testimony placed Goodwin at the scene of the crime the afternoon after the killing. Cooper explained that while traveling on his employer’s bus, the driver stopped to pick up a hitchhiker near the dirt road where the victim’s body was later discovered. At the courthouse the following day, Cooper told Sheriff Franklin Thornton that his bus had picked up a hitchhiker along the side of the particular road. Thornton then showed Cooper a photograph of Goodwin and asked Cooper if this was the hitchhiker. Cooper answered affirmatively. He also made an in-court identification of Goodwin as the hitchhiker. Regarding Cooper’s testimony and his damaging identifications, trial counsel again thought it unnecessary to raise any doubts:

Q: Did you interview Benny Cooper?

A: No.

Q: My recollection of the transcript is that Mr. Cooper, when he was there in the police station, said that he’d seen a man out on the road, and the sheriff handed him a picture and said, ‘Is this the man that you saw?’ Did you consider filing a motion to challenge the procedure that that identification was made by?

A: No.

Q: Why not?

A: I didn’t think it was necessary.

Q: Did you think it would lose?

A: Huh?

Q: Did you think it wouldn’t be a successful motion?

A: Well, I didn’t think that the testimony, as he gave it was important enough to make any objections to it.

*812 812 Q: (The prosecuting attorney) thought it was important enough to use in the trial, use in his closing argument?

A: Yeah, that’s right. Course, I’ll tell you how I am about things like that. Unless I think they’ll accomplish something, I don’t make an objection. Course I know as far as you fellows are concerned, that’s very important but the only thing that I seriously tried to get thrown out was the confession, which, if I have been successful in that, they’d have never had a conviction. The evidence they gathered from that confession-

Trial counsel indicated in his state habeas corpus deposition that, in his opinion, Mitchell and Cooper were “snitches,” informants for the sheriff’s department in return for leniency in other crimes or investigations. His opinion was based upon what deputies had told him. He characterized the witnesses as unreliable, capable of fabricating a story to remain in good standing with the law. No effort, however, was made to question their versions.

Q: Do you share my feelings that those little tidbits seem to be a little bit too pat? And, if so, what did you do to find out whether or not they were fabricated or placed in someone’s ear?

A: Well, actually, I didn’t know definitely before we went to trial what they were going to testify to. I knew the association, and I knew of no way to counteract that.

Q: Do you think that these were crucial? Do you think that these statements were, in your opinion, were crucial in terms of the conviction for robbery?

A: No, no. I still don’t think he robbed him. And I don’t think they proved it.

Q: But you don’t think that the statements that he was going to rob somebody were crucial in the conviction of the robbery?

A: No, I don’t. I think it was just bragging to his buddies, is what I thought at that time; still believe it.

Q: But you made no effort personally to contact any of these people?

A: No.

3. Failure to Effectively Challenge the Events through which

Goodwin was Brought into Custody

Upon receiving the information from deputy O’Kelly, deputy Rakestraw, accompanied by deputy Wiggams, went to Goodwin’s home. When he arrived sometime after midnight, Goodwin’s mother answered the door and let Rakestraw in. On cross-examination at trial, Rakestraw explained the situation this way:

Q: Okay. Now when you knocked on the door, did you tell Mrs. Goodwin what you wanted?

A: She first asked who it was, and I told her the deputy sheriff.

Q: When she opened the door?

A: Right.

Q: You went in. Where was Terry?

A: He was in the back bedroom, in bed.

Q: Was he undressed?

A: Yes, sir.

Q: Did you tell him to get up and get dressed?

A: I told him ….

Q: What did you tell him? Just tell me what you told him.

A: I told Terry I wanted to talk to him down to the office, to get up and get his clothes on.

Q: And he did not ask you what you wanted to talk with him about?

A: No, sir.

Q: You did not have a warrant?

A: No, sir.

Q: Is it customary to go out to people’s houses without a warrant or without seeing some crime committed and go in?

A: Well I was invited in.

Q: You were invited in?

A: Plus, I wasn’t suspect of anything.

Rakestraw claims that he did not arrest or intend to arrest Goodwin at that time, rather, *813 813 he was a suspect in the case and he accompanied him willingly to the sheriff’s office. Goodwin was taken to another deputy who advised him of his rights. Although Goodwin was subsequently transferred to different offices, he remained in the custody of sheriff’s deputies until his confession was obtained on Saturday evening.

Goodwin now contends that Rakestraw’s statement was not merely a request to accompany the deputy for questioning. To the contrary, Goodwin asserts that at the moment deputy Rakestraw told him “to get up and get your clothes on” he was under arrest, and, because probable cause did not exist to support it, the arrest was illegal. Goodwin further claims that the state has the burden of proving voluntary consent and the testimony of the seizing officer in no way satisfies this burden.

According to Goodwin’s trial counsel, the defensive strategy was two-pronged: The first objective was to suppress the confession and failing that, to obtain a life sentence. Attempts to bargain for a plea were halted when trial counsel learned that the district attorney was steadfastly seeking the death penalty. On the day of trial, trial counsel attacked Goodwin’s confession by filing a broadly worded motion to suppress. The motion was framed in a manner so as to challenge deputy Rakestraw’s actions as constituting an illegal arrest. The motion states: “On the 12th day of April, 1975, at about 2:00 a. m., defendant was rousted from his bed at home and arrested by deputies Rakestraw and Palmer without warrant and carried to the Walton County Sheriff’s Office.” In his argument in support of the motion to suppress, trial counsel never proceeded with the theory that the circumstances amounted to an illegal arrest and in denying the motion, the trial court made no specific finding as to whether Goodwin was illegally arrested or as to the existence of probable cause. Similarly, on appeal to the Georgia Supreme Court, Goodwin’s trial counsel did not enumerate as error the admission of the confession because of an illegal arrest, rather, he asserted that Goodwin’s mental capacity effectively prevented him from knowingly waiving his rights. Goodwin asserts a number of reasons why no challenge to the deputies’ actions was taken, all of which are supported by the record. Because trial counsel never interviewed deputy Rakestraw, the deputy who took Goodwin to the sheriff’s office, trial counsel never learned how the deputies obtained sufficient information to arrest him nor did he find out the name of the person who allegedly told deputy O’Kelly the contents of the conversation she had overheard. Moreover, trial counsel was unaware that under the parameters of the poisonous tree doctrine, an illegal arrest may affect the admissibility of a subsequent confession. Trial counsel’s response to questioning regarding this issue in the state habeas corpus proceeding is enlightening:

Q: Okay. Do you, thinking back on the case and what you knew about it, do you think that the arrest was a legal arrest?

A: No, I-

(District attorney): Object.

THE WITNESS: I don’t really believe that.

Q: What do you base that opinion on?

A: Well, to get the warrant in the first place, they had to have a reasonable ground to believe that he was involved in it. And I never did think that they had that. I never had found out how they, except for the so called statement by O’Kelly and the other officer that this woman-

Q: Rakestraw?

A: Rakestraw, yeah. I never did know how they really got out there to get into his house and pick him up.

Q: You never found out how they got enough information to go out and arrest him in the first place?

A: Yeah, that’s right.

Q: Now, what you’re talking about is when they went out, I believe it was like twelve-thirty in the morning on the 12th.

A: That’s right.

Q: Explain that a little bit. What do you mean, you never found out?

*814 814 A: Well, they kept talking about the telephone calls-

Q: Right.

A: -and tracing them out to him. They never, at any time did they ever identify, positively identify, that it was Goodwin.

Q: That it was Terry?

A: But they must of had some information, because he admitted it.

Q: What efforts did you make to try to get that information?

A: No more than asking the deputies and the officers how they happened to go out there.

Q: Are you familiar with the Wong Sun case?

A: The what?

Q: Wong Sun v. United States.

A: No.

Q: Never heard of that case?

A: No, I haven’t.

Q: Are you familiar with the doctrine of the Fruit of the Poisonous Tree?

A: Yes, I know that. In fact, (defense co-counsel) in his, I believe in arguing before the jury, he brought that out. I’ve got a bad memory in late years.

Q: You said before that you thought that the arrest was illegal?

A: Yes.

Q: Do you think, in your professional opinion, under the doctrine of poisonous tree, that might have had an effect on the admissibility of the confession?

A: No sir.

Q: I’m sorry?

A: No sir.

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court, expounding on the contours of the exclusionary rule, declared that the rule not only prohibited from use at trial tangible evidence obtained as a direct result of an unlawful invasion, but barred the use of verbal statements by the accused as well. 317 U.S. at 485, 83 S.Ct. at 416. “Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest … is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” 317 U.S. at 485-86, 83 S.Ct. 416 (footnote omitted). According to Goodwin, this lack of understanding of the legal principles set out in Wong Sun most likely explains trial counsel’s inaction. 18

4. Other Failings by Trial Counsel

Goodwin enumerates other instances where he claims trial counsel’s actions or inactions fell below the requisite standard. He cites as ineffective assistance his counsel’s failure to object at trial and on motion for new trial and on appeal the improper exclusion of veniremen in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). During voir dire, the veniremen were asked collectively if they conscientiously opposed capital punishment, and, if so, to stand up. Four veniremen stood up. The district attorney then asked these four, “Are your reservations about capital punishment such that you could not vote truly and fairly and impartially on the issue of whether or not a person charged is guilty or not guilty of the crime charged? If so, raise your hand.” Mr. Hayes responded, “Well I could not vote.” The district attorney then stated, “Could not vote at all? Your honor, it appears that Mr. Hayes and Ms. Malcom are disqualified.” The trial court agreed and directed Hayes and Malcom to take a seat in the courtroom. When Goodwin’s trial counsel asked permission to ask questions of Hayes and Malcom, the trial court informed counsel they had been disqualified. Trial counsel then asked, “Did they say they were unalterably opposed to capital punishment?” *815 815 The trial court replied affirmatively. Notably absent, however, is any statement from the mouth of Ms. Malcom regarding her reservations about capital punishment. She was never asked to explain her position.

The Supreme Court’s mandate in Witherspoon is well known. It teaches that “(u)nless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” 391 U.S. at 515 n.9, 88 S.Ct. at 1773 n.9 (emphasis added). The state may validly implement the sentence of death only where the

jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

391 U.S. at 522 n.21, 88 S.Ct. at 1771 n.21 (emphasis in original). A raising of the hand fails to satisfy Witherspoon ‘s calling for an unambiguous statement on the question of whether a venireman “would automatically vote against the imposition of capital punishment no matter what the trial might reveal ….” 391 U.S. at 516 n.9. The law in this circuit demands strict adherence to Witherspoon ‘s requirements. See, e.g., Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981); Burns v. Estelle, 626 F.2d 396 (5th Cir. 1980) (en banc).

In its consideration of this issue, the district court adopted the proposed finding of the magistrate which concluded that Malcom had made it unmistakably clear that her attitude toward the death penalty would have prevented her from making an impartial decision as to Goodwin’s guilt or innocence. Trial counsel offered the following explanation at the state habeas corpus hearing as to why no objection to Malcom’s removal was filed.

Q: Now, as a result of those proceedings there were, I believe, four jurors disqualified.

A: Disqualified, I think so. Three men and a woman.

Q: Alright. And you did not object to their disqualification. I want to know why.

A: Because they said they were unalterably opposed.

Q: Okay.

A: According to my question.

Q: Did you object to the judge’s not allowing you to question them to rehabilitate them?

A: No, not after they made the statement.

Q: But you wanted to ask them a few questions to rehabilitate them?

A: I didn’t understand what they said, was the reason I was asking them.

Q: I see. Is it your legal opinion that you could or could not, that you should or should not, have an ability to rehabilitate the jurors?

A: Not after they made the statement.

Q: It’s your legal opinion that you have no right to rehabilitate the jurors?

A: (District attorney): I object to that.

THE WITNESS: I don’t think so, no sir.

Q: Some of these people didn’t make a statement at all, they just raised their hand or stood up.

A: The only one I remember on my reading that, was the woman that didn’t answer the question.

Q: What about her?

A: I don’t know about her. At that time if she didn’t, I didn’t catch it. But after reading what you read there while ago, it seemed that she didn’t make any statement.

Q: Did you want to question her?

A: No, not after the judge said what he did.

Q: You thought that barred you from asking any questions?

*816 816 A: No, it didn’t bar me, but I didn’t see any necessity. If they’d made the statement that they were unalterably opposed to it and there wasn’t any changing their minds, why, I didn’t see what I’d accomplish by going on and doing it further.

Trial counsel was unaware that Malcom had not affirmatively stated her position on capital punishment. When questioned if he had noticed the Malcom omission upon review of the trial transcript in preparation of the motion for a new trial and direct appeal, trial counsel informed that his co-counsel reviewed the transcript for Witherspoon violations. Co-counsel testified that he did not review the transcript for Witherspoon violations.

In short, trial counsel simply failed to notice that Malcom never affirmatively stated her unalterable opposition to the death penalty, hence, no objection to her excusal was entered. Complete fault, however, cannot be placed upon trial counsel because of the apparent obstruction by the trial court in refusing the request to question the excluded veniremen further. Contrary to the trial court’s statement, Malcom did not say she was unalterably opposed to capital punishment. Nevertheless, this glaring omission in the record was not discovered in the investigation and preparation of Goodwin’s motion for a new trial and subsequent appeal.

Among the other instances where Goodwin contends counsel was ineffective during his trial, he cites his trial counsel’s failure to object to the victim’s family being allowed to sit inside the bar of the court. Trial counsel explains why no objection was raised.

Q: Can you tell us where the Studdard family sat during the trial?

A: Inside the rail, right back of defense counsel’s table.

A: Approximately how far is that from the jury?

A: It would be twenty, twenty or twenty-five feet. Maybe not that much. Well, you know where the jury was.

Q: Did you object to that procedure?

A: No, I didn’t object to it.

Q: Why not?

A: I didn’t think it was important.

Trial counsel failed to object to the trial court’s failure to charge the jury on mitigating circumstances as required by Ga.Code Ann. § 27-2534.1(b). See footnote 6. Moreover, trial counsel failed to request a charge on Goodwin’s diminished capacity, the focal point of the entire defense. No explanation was given why such a request was not tendered to the trial court. Trial counsel also failed to object to the admission of Goodwin’s prior conviction records for forgery which were introduced during the penalty phase of the trial. By statute in Georgia, evidence of prior criminal convictions are admissible in the penalty phase provided the state has informed the defendant of its intention to use such evidence. Ga.Code Ann. § 27-2503(a), (b). For purposes of the motion to suppress the confession hearing only, the district attorney introduced records of Goodwin’s 1974 forgery convictions in an attempt to demonstrate Goodwin’s ability to knowingly and intelligently waive his rights as he had allegedly done in conjunction with the 1974 convictions. Goodwin’s trial counsel did not object to their introduction. The records were labeled state’s exhibits number twenty-nine and thirty. Later, in the sentencing phase, the district attorney tendered into evidence for the purposes of the trial the conviction records. Defense counsel did not object. The record is devoid of any document giving notice of the intention to introduce the prior conviction records at the presentencing *817 817 hearing. The record does reflect, however, that in the forgery convictions, Goodwin was represented by one of the two attorneys appointed to represent him in the murder trial in question. Obviously then, his trial counsel was well aware of the prior convictions. Awareness, however, is not tantamount to knowledge of the state’s intended reliance upon those convictions as evidence in aggravation. See Gates v. State, 229 Ga. 796, 194 S.E.2d 412 (1972).

Trial counsel failed to object on more than one occasion to the prosecution’s use of leading questions. A conspicuous example: “Do you recall having any conversation with Terry Goodwin concerning a robbery or murder prior to the time this man (the victim) got (sic) missing?” The witness asked the prosecutor to repeat the question, which he did. The witness answered affirmatively. Queried if he thought this was a fairly leading question, trial counsel thought so but did not object because, in his opinion, the witness was of low intelligence. No evidence was ever presented as to the intelligence of this witness nor did defense counsel use cross-examination to reveal that the witness’s intelligence was other than normal.

D. Goodwin’s Trial Counsel Rendered Ineffective Assistance

Adopting the recommendation of the magistrate, the district court concluded that Goodwin’s two trial attorneys provided reasonably effective assistance of counsel throughout all phases of his trial. We disagree. Assessing the effectiveness of trial counsel by the standards set forth herein, we hold that trial counsel fell below that level of effectiveness mandated by the interpretation of the sixth amendment right. Our examination of the areas in which Goodwin contends his counsel provided ineffective assistance compels us to conclude that this counsel was not reasonably likely to render, and did not render, reasonably effective assistance. MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), adhered to in pertinent part on rehearing en banc, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). In the totality of circumstances of this case, counsel’s lack of investigation and general attitude, when taken together, deprived Goodwin of the zealous representation due any client, even those accused of committing atrocious acts. Trial counsel neglected an examination of the grand and petit jury selection procedures in Walton County at the time in question. Such an examination would have revealed glaring disparities in racial and gender representation. Additionally, trial counsel failed to make an informed evaluation of a potential defense, namely, that Goodwin was illegally arrested. See Gaines v. Hopper, 575 F.2d at 1149-50 (habeas corpus relief proper where failure to investigate deprived petitioner of defense otherwise assertable). By his own admission, trial counsel’s lack of investigation into the circumstances surrounding the taking of Goodwin from his bedroom prevented an evaluation as to the existence of probable cause. On behalf of Goodwin’s defense, we glean from the record that trial counsel interviewed Goodwin at least five times prior to trial. Co-counsel visited the scene of the crime on two occasions. Attempts to plea bargain with the district attorney proved unsuccessful. Pre-trial motions to quash the indictment and suppress the confession and evidence obtained from the search of Goodwin’s home were filed. At one point, trial counsel considered filing a motion requesting a change of venue but ultimately decided otherwise. Counsel filed a timely motion for new trial and, upon its denial, argued Goodwin’s appeal in the Georgia Supreme Court. When counsel’s performance is placed in the balance of the entire record, however, we can only conclude that his failures were grossly disproportionate to the positive aspects of his representation and in our view amounted to ineffective assistance.

Finding the assistance rendered by Goodwin’s trial counsel constitutionally inadequate does not complete the inquiry. As Washington v. Watkins emphasizes, “(t)he law of (the former Fifth Circuit) is as yet unclear as to the precise degree of prejudice that a defendant must demonstrate before he is entitled to habeas corpus relief *818 818 on grounds that he received ineffective assistance of counsel, although it is clear that some degree of prejudice must be shown.” 655 F.2d at 1364 (footnote omitted, emphasis in original). 19 Goodwin maintains that a sufficient degree of prejudice flows from the existence of both a meritorious grand jury discrimination claim and a viable defense that went unheeded due to the lack of investigation. Had counsel investigated, Goodwin claims, he would have discovered that at the time Goodwin was considered under arrest, no probable cause existed to effectuate the seizure. The record appears to bear Goodwin out. Sheriff Franklin Thornton was asked during cross-examination if he knew personally or if his records indicated when Goodwin was placed under arrest. He testified that when the deputies brought him from his home to the sheriff’s office after midnight and detained him in the jail, Goodwin was counted as arrested. As noted previously, it is Goodwin’s contention that he was under arrest for fourth amendment purposes the moment deputy Rakestraw told him to get up and get dressed. 20 Rakestraw’s decision to pick up Goodwin was precipitated by deputy O’Kelly’s information concerning assertions by an unidentified girl claiming to have overheard Goodwin make incriminating statements. Without anything more, this is not enough to establish probable cause to arrest. Probable cause to arrest “exists where ‘the facts and circumstances within (the arresting officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1964), quoting Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Where the information leading to the formulation of an officer’s reasonable belief is supplied by an informant, the adequacy of such information must be tested by the two-prong analysis of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Quoting Aguilar v. Texas, 378 U.S. at 114, 84 S.Ct. at 1514, the former Fifth Circuit stated:

To rely on an informant’s report to establish probable cause, it must first affirmatively appear that the agents were informed of:

(first) some of the underlying circumstances from which the informant concluded *819 819 that his information was accurate, and (second) some of the underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information ‘reliable.’

United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971). The state has failed to satisfy either of the Aguilar-Spinelli requirements for the establishment of probable cause through information supplied by an informant. While the factual inadequacy of the record presents an impediment to holding that Goodwin was under arrest at the moment he was told to get up and get dressed, the record does indicate that nothing transpired between the time Goodwin was taken from his home until detained at the station that established probable cause to arrest. Trial counsel was never aware of the lack of probable cause, nor was he aware of Thornton’s testimony regarding the question of arrest until he heard it at trial. 21

Trial counsel’s concentration on the confession as involuntary was not the result of an informed decision. Rather, his challenge based on Goodwin’s mental capacity as the only possibility for suppression was the product of an erroneous legal conclusion. Although he states many times in his state habeas corpus deposition that he believed Goodwin was illegally arrested, trial counsel’s misunderstanding of the fruit of the poisonous tree doctrine led him to believe that an illegal arrest provided no foundation for suppressing a confession. 22 See Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974) (lack of familiarity with facts and law relevant to case causes counsel to fall below the minimum level required); Caraway v. Beto, 421 F.2d 636, 637 (5th Cir. 1970) (counsel is ineffective unless acquainted with facts and law of case).

Stemming from the revelation that probable cause to arrest was lacking, Goodwin claims the evidence obtained as a result of the illegal seizure, most notably, his confession, could have been suppressed. According to Goodwin, because trial counsel was unaware that an illegal arrest could affect the admissibility of a subsequent confession, his defensive efforts were directed toward events transpiring after the confession was obtained. Thus, the trial court was never called upon to address the legality of the arrest, nor was it requested to conduct an inquiry into the factors leading up to the confession to determine whether the deputy’s conduct was so attenuated from the confession by the presence of intervening circumstances so as to render the confession reliable and hence, admissible. 23 *820 820 We cannot state with a sufficient degree of assurance that the confession would have been suppressed had counsel realized the law provided an avenue for such a measure. Nevertheless, because the possibility of suppression existed, it cannot be said that trial counsel’s ineffective preparation and investigation was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

The magnitude of trial counsel’s misunderstanding cannot go unnoticed or be deemed a common mistake by the average criminal lawyer. We hold trial counsel’s ineffective assistance evidenced by his lack of thorough investigation deprived Goodwin of a potential defense. In addition, the decision to raise what would have been a credible challenge to the composition of the grand jury was unperceived. We cannot disregard these conspicuous errors. We therefore reverse and remand to the district court with directions to issue the writ of habeas corpus. 24

For the reasons specified in Part III, we reverse the district court’s judgment insofar as it upholds the trial court’s capital sentencing instructions. Accordingly, Goodwin’s death sentence is set aside. Spivey v. Zant, 661 F.2d at 478-79. We reverse the district court’s finding that Goodwin’s trial counsel provided reasonably effective assistance. The case is remanded to the district court with directions to issue the writ of habeas corpus discharging Goodwin, subject to the state’s right to retry him within a reasonable time. This time period shall be scheduled by the district court.



* Honorable Joe M. Ingraham, U. S. Circuit Judge for the Fifth Circuit, sitting by designation.

1 Eleven days after Goodwin confessed to the crimes, the Walton County Superior Court ordered Goodwin confined to the Central State Hospital at Milledgeville, Georgia, for a psychiatric evaluation. Goodwin remained at the hospital approximately three months. An examining psychiatrist testified that Goodwin’s I.Q. was eighty-one and diagnosed him to be “borderline mental retardation.” He classified Goodwin’s mental age at approximately fourteen years. A school psychologist who examined Goodwin a few days before trial testified that, in her opinion, Goodwin’s mental age was nine years six months. Her examination placed Goodwin’s I.Q. at fifty-eight.

2 Georgia’s capital sentencing procedure requires all death sentences be reviewed by the Georgia Supreme Court. Ga.Code Ann. § 27-2537.

3 The magistrate was not the first to attack the infirmities of the trial court’s sentencing charge. In the appeal of his state habeas corpus petition to the Georgia Supreme Court, Justices Hill and Marshall, troubled by the lack of instruction on the option to recommend life imprisonment, dissented “in the belief that (Goodwin) should be given a retrial as to sentencing.” Goodwin v. Hopper, 243 Ga. 193, 197, 253 S.E.2d 156, 159 (1979) (Hill, J., dissenting).

4 Goodwin cites as mitigating circumstances his age, race, reduced mental capacity, social, economic, and family background. Evidence of these circumstances was presented during the guilt phase of trial through testimony of Goodwin’s mother, a school psychologist, and the state’s psychiatrists.

5 Spivey v. Zant is binding on this circuit as a post-September 30, 1981, decision of a Unit B panel of the Former Fifth Circuit. See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982).

6 The trial court charged the jury in Spivey v. Zant as follows:

Ladies and gentlemen, you have found the defendant guilty of the offense of murder. It is now your duty to determine, within the limits prescribed by law, the penalty that shall be imposed as punishment for that offense. In reaching this determination you are authorized to consider all the facts and circumstances of the case.

Under the laws of this State, every person guilty of the offense of murder, shall be punished by life in the penitentiary, or death by electrocution.

I charge you that before you would be authorized to find a verdict fixing a sentence of death by electrocution, you must find evidence of statutory aggravating circumstances, as I will define to you later in the charge, sufficient to authorize the supreme penalty of the law.

I charge you that a finding of statutory aggravating circumstance shall only be based upon evidence convincing your mind beyond a reasonable doubt as to the existence of one, or of the factual condition in connection with the defendant’s perpetration of acts for which you have found him guilty. (Sic)

Now, the law provides certain aggravating circumstances which you may consider for this purpose. If the offense of murder was committed while the offender was engaged in the crime of another capital felony, in this case, the capital felony charged by the State is that of armed robbery, I have given you in charge, you have received the definition of armed robbery.

The statutory instructions that you are authorized to consider will be submitted in writing to you the jury for your consideration. If you fix his punishment as death, you must also designate in writing that aggravating circumstance which you find beyond a reasonable doubt.

Your verdict must be agreed to by all twelve of your members, it must be in writing, entered upon the indictment, dated and signed by your foreman, and returned into Court for publication.

You may retire and begin your deliberations, after you have received the indictment and documented evidence adduced in the pre-sentence hearing, and then determine the penalty or punishment that shall be imposed in this case. You must first consider and find beyond a reasonable doubt that the aggravating circumstance, or the murder happening while in the perpetration of another capital felony, armed robbery; armed robbery is a capital felony, you must find that beyond a reasonable doubt.

If you find that to exist, then you shall so indicate in writing, then you will determine whether or not you will impose the death penalty, and your verdict then will be one of two: “We the jury recommend the death penalty,” or “We the jury do not recommend the death penalty.” That is a matter for your *820 820 determination, ladies and gentlemen.

You will have this in writing to carry out with you to assist you in preparation of your verdict. You may retire at this time and fix punishment in this case.

Spivey, 661 F.2d at 468.

7 As did the petitioner in Spivey, Goodwin challenges the jury instructions given in this case, not the validity of the Georgia death penalty statute. The relevant statute provides in pertinent part that, “the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law.” Ga.Code Ann. § 27-2534.1(b). As noted in Spivey, the trial court is not constitutionally required to use the words “mitigating circumstances” in its capital sentencing charge. “So long as the instruction clearly communicates that the law recognizes the existence of circumstances which do not justify or excuse the offense, but which, in fairness or mercy, may be considered as extenuating or reducing the degree of moral culpability … the constitutional requirement is satisfied.” Spivey, 661 F.2d at 471 n.8 (citation omitted).

8 In holding the capital sentencing charge constitutional, the district court noted that the district attorney in his closing argument to the jury during the sentencing phase of the trial stated: “So you are going to determine whether or not Terry Lee Goodwin is to be sentenced for the offense of murder, either to life or death.” What this implies, of course, is that even if the trial court’s instructions did not make it perfectly clear, the district attorney certainly did. During oral argument before this panel, counsel for the state made a similar evaluation. While not specifically contending that argument of counsel suffices if it informs the jury about the mitigating circumstances, state’s counsel reasoned that it’s impractical for a trial court trying to ascertain if a jury is aware of the scope of its authorization to totally ignore argument of counsel, especially where counsel relies on diminished capacity, race, and economic background in his closing argument. Any suggestion that counsel’s argument can perfect an otherwise faulty jury charge is totally erroneous. Arguments of counsel can never substitute for the instructions given by the court. Taylor v. Kentucky, 436 U.S. 478, 488-89, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468 (1978).

9 Since ruling on this issue in Goodwin’s state habeas corpus petition, the Georgia Supreme Court has apparently taken a different position on the constitutionality of a sentencing charge identical to Goodwin’s insofar as the option to recommend against death is unclear. In Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219 (1981), the court affirmed the granting of habeas corpus relief as to sentence where the charge failed to adequately inform the jury of its option. “(T)he trial court’s charge failed to … inform the reasonable juror that he could recommend life imprisonment even if he should find the presence of one or more of the statutory aggravating circumstances. Nowhere in the charge is this option made clear to the jury.” Zant, 247 Ga. at 720, 279 S.E.2d at 222 (emphasis added).

10 Counsel originally appointed to defend Goodwin was a relative of the victim. This prompted his disqualification. The Walton County Superior Court then appointed Goodwin’s trial counsel and co-counsel who represented him at trial and on appeal to the Georgia Supreme Court.

11 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

12 We explicitly refrain from any intimation as to the fullness or fairness of the consideration given to other issues raised by Goodwin in his state habeas corpus petition.

13 In his opening argument, trial counsel stated, “I have been appointed by the court to defend Terry Goodwin.” At the close of the state’s presentation of documentary evidence in the sentencing phase of trial, co-counsel told the jury:

Well if you decided to impose the death penalty today and you decide to sentence him, Terry Goodwin, to the electric chair, historically speaking, you have got a very likely candidate. He is a little old nigger boy, he would not weigh a hundred and fifty pounds. He has got two court appointed lawyers appointed by this court to represent him to do the very best we can for him. He is poor. He is broke. He is probably mentally retarded. I dare say he has not got an I. Q. of over 70. He is uneducated. Probably just unwanted. This is the kind of people that we have historically put to death here in Georgia.

14 More difficult to discern is the number of blacks on Goodwin’s trial jury. Goodwin’s trial counsel testified in the state habeas corpus proceeding that he recalled only one black on the jury. Goodwin’s co-counsel remembered one or two blacks being on the jury. The district attorney’s recollection placed three blacks on Goodwin’s jury. From our examination of the record, we can only be certain that of the twelve jurors, at least nine were white.

15 According to Goodwin’s statistics, of the potential jurors in the 1971 Walton County petit jury pool, 1,219 or 74.47% were white, 153 or 9.4% were black, and 265 or 16.2% were unidentified. Of this number, 1,349 or 78.8% were male, and 362 or 21.2% were female. With the unidentified persons as to race not distributed, the disparity for black representation on the 1971 petit jury pool was 66%. When the 265 unidentified persons are distributed according to race based on the census ratio for the county, the disparity for black representation was 49%. The disparity for female representation in the 1971 petit jury pool was 31.4%.

The same classifications for the potential jurors in the 1973 Walton County petit jury pool indicate that of the 1,090 summoned, 808 or 74.2% were white, 189 or 17.3% were black and ninety-three or 8.5% were unidentified. Of this amount, 568 or 52.1% were male and 522 or 47.9% were female. The disparity for black representation in 1973 was 10.4%, with the unidentified persons as to race not distributed. The disparity for black representation was 7.7% when the unidentified are distributed according to race based on the 1970 census ratio for Walton County. The female disparity for this time period was 4.5%. In Jones v. Brooks, the district court’s order establishes that of the 407 potential jurors summoned over the period beginning August, 1974, through August, 1975, 358 or 87.96% were white, forty-nine or 12.04% were black, 301 or 73.96% were male, and 106 or 26.04% were female.

16 Ga.Code Ann. § 50-127(1) was amended by 1975 Ga.Laws 1143 and became effective April 24, 1975, approximately four months before Goodwin’s trial. The section reads in pertinent part:

The right to object to the composition of the grand or traverse jury will be deemed waived under this Section, unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has otherwise become final.

Prior to amendment, confusion existed as to whether the right to challenge grand and petit jury composition in a collateral proceeding was available, given the petitioner’s failure to do so before trial. See Stewart v. Ricketts, 451 F.Supp. 911 (M.D.Ga.1978).

17 Because of this position, Goodwin has made no effort to demonstrate cause and prejudice as mandated by Francis v. Henderson. Nevertheless, a plausible argument can be asserted that, in fact, both the cause of the waiver and the prejudice resulting therefrom exist in the instant case. The cause for the failure to make the timely challenge is evidenced by the testimony of trial counsel adduced in the state habeas corpus proceeding. Trial counsel filed no objection to the composition of the grand and petit jury lists because he was a “native” of that part of the country, and just “didn’t think about the thing.” Moreover, the reason for making known his appointed status-concerns over his reputation-was again cited as a reason for not challenging the jury. This is not the kind of hollow claim alleged in Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir. 1977). Faced with a bare allegation of ineffective assistance of counsel as the cause for failure to challenge a grand jury’s composition, the Lumpkin court refused to sanction such a meager contention as demonstrating a legitimate cause. 551 F.2d at 682-83. The argument in Goodwin’s case, however, draws its support from the testimony of the individual whose duty it was to investigate the propriety of such a challenge. As for the waiver’s prejudicial effects, the statistics reveal that a prima facie case of discriminatory purpose in the grand jury selection process could have been established. Goodwin would not necessarily have prevailed in such a case, but enough evidence could have been produced in order to shift the burden to the state.

In Lumpkin v. Ricketts, the petitioner assigned error to the district court’s determination finding a waiver of the right under state law to contest the constitutionality of the composition of the grand jury that indicted him. Primarily concerned with the allegation that the right had not been waived under state law, the former Fifth Circuit relied on Georgia case law existing at the time of the petitioner’s trial to hold that a failure to challenge the grand jury array before trial resulted in a waiver. See, e.g., Dennis v. Hopper, 548 F.2d 589 (5th Cir. 1977); Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965). Thus, the court next addressed the question of whether cause and prejudice had been demonstrated. The petitioner contended that his indictment was the product of a venire that suffered from the same defect disapproved by the Supreme Court in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). The court rejected this contention and noted that prior to trial, counsel for both parties had agreed on the identity of the grand jury pool. 551 F.2d at 682 n.3. As alluded to above, petitioner claimed sufficient cause for the failure was present in his trial counsel’s ineffective representation. The facts disclosing the existence of cause and prejudice in the instant case undeniably form a more legitimate basis for examining the jury discrimination issue than those advanced in Lumpkin.

18 In his argument to the trial court on Goodwin’s motion to suppress evidence obtained from the search warrant, co-counsel stated “that under the rules of the fruit of the poison tree doctrine, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, all testimony concerning these articles is, as well as the articles themselves, should be scratched.” Obviously, co-counsel was aware of the Wong Sun decision; he did not understand, however, its reasoning and proper application regarding the suppression of evidence obtained via an illegal arrest.

19 See Washington v. Watkins, 655 F.2d at 1362 n.32 and cases cited therein. The obscurity surrounding the prejudice aspect of ineffective assistance claims should soon be clarified by this court sitting en banc. We note that the issue of the degree of prejudice which must be demonstrated in an ineffective assistance of counsel case is involved in the case of Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982) (Unit B) which was orally argued before the en banc court on June 15, 1982. We need not await the decision of the en banc court, however, because we conclude in the instant case that the prejudice is so obvious that a sufficient degree of prejudice exists under any standard that the en banc court might adopt.

20 Goodwin contends that the circumstances in this case are indistinguishable from those found in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Dunaway, the Supreme Court was confronted with a situation where police officers acting on less than probable cause located a suspect at a neighbor’s house. The officers then took the suspect into custody and although he was never told he was under arrest, he would have been restrained had he sought to leave. While in custody and after Miranda warnings, the suspect made incriminating statements linking himself to the crime. The Court held that whether or not the seizure was technically characterized as an arrest, it was so indistinguishable from a traditional arrest that it must be supported by probable cause. 422 U.S. at 216, 99 S.Ct. at 2258. Additionally, the Court concluded that the connection between the illegal police activity and the incriminating statements was not sufficiently attenuated so as to permit their use at trial. 422 U.S. at 219, 99 S.Ct. at 2260.

Regarding Goodwin’s factual argument, he maintains, although he has never testified as to its truth, that a dispute exists as to whether he accompanied the deputies willingly. While the event as testified to by deputy Rakestraw unquestionably lends itself to such an inquiry, the inadequacy of the record prevents us from addressing this contention. No deputy has testified whether Goodwin would have been free to remain in bed despite the statements made to him by deputy Rakestraw. Accordingly, we refrain from reaching the merits of this factual claim.

21 Although we decline to decide the merits of Goodwin’s fourth amendment challenge on either a legal or factual basis, this does not foreclose our performance of the proper analysis for deciding the ineffective assistance claim. Our purpose in reciting the factual circumstances surrounding the deputy’s actions is intended only for a better understanding of how these circumstances relate to the ineffective assistance argument. Because the circumstances present a multitude of unanswered questions, most notably, the question concerning probable cause to arrest or the lack thereof, it can hardly be said that Goodwin’s trial counsel’s inadequate investigation in this area enabled him to present an effective case. The essence of this lack of investigation lies in its prejudicial effect to Goodwin’s defense.

22 On the arrest question, counsel’s state habeas corpus deposition is somewhat conflicting. Although counsel states that he believed Goodwin to be illegally arrested, he also states that “they” didn’t arrest Goodwin. This statement not only conflicts with counsel’s previous assertions that Goodwin was illegally arrested, but also conflicts with Sheriff Thornton’s testimony to the effect that Goodwin was considered under arrest when the deputies brought him into the sheriff’s office early Saturday morning. The inconsistency is puzzling but not inexplicable considering the minimal effort spent investigating the facts and circumstances leading up to Goodwin’s apprehension.

23 The Supreme Court conducted the attentuation inquiry without the benefit of the trial court’s consideration of the question in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In Brown, the Court examined the connection between an unlawful arrest and subsequent incriminating statements and determined that in the absence of any “intervening event of significance,” the statements were inadmissible. Brown, 422 U.S. at 604-05, 95 S.Ct. at 2262. In Brown, however, the Court approached the question in the context of an alleged fourth amendment violation. Because Goodwin’s habeas corpus petition alleges a violation of his sixth amendment right, the admissibility vel non of his confession is not controlling on the resolution of the ineffective assistance contention.

24 Our holding that counsel’s ineffectiveness deprived Goodwin of his sixth amendment right to counsel reasonably likely to render effective assistance is in no way meant to be viewed as a hard and fast rule granting habeas corpus relief on ineffective assistance claims whenever a failure to investigate the facts and circumstances of a particular case occurs. The duty to investigate is not limitless and it does not necessarily follow that every time counsel fails to pursue all lines of inquiry will it mean that his assistance is ineffective. Washington v. Watkins, 655 F.2d at 1356. “(C)ounsel for a criminal defendant is not required to pursue every path until it bears fruit or until all conceivable hope withers.” Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). Based on the record before us, however, this is a case where habeas corpus relief is justified.

Under ordinary circumstances, when the state court has provided an opportunity for a full and fair adjudication of a fourth amendment claim, such as an unconstitutional arrest, the federal courts may not grant habeas corpus relief to a state prisoner on the ground that evidence obtained therefrom was introduced at his trial. This is the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1967). Stone requires that an opportunity for full and fair adjudication of a fourth amendment claim be provided at some point by the state court. If the petitioner deliberately bypasses his state opportunity or knowingly waives his fourth amendment objections, federal habeas corpus relief is precluded. O’Berry v. Wainwright, 546 F.2d 1204, 1213-14 (5th Cir.), cert. denied 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1977). Decisions subsequent to O’Berry indicate that “it is the existence of state processes allowing an opportunity for full and fair litigation of fourth amendment claims, rather than a defendant’s use of those processes, that serves the policies underlying the exclusionary rule and bars federal habeas corpus consideration of claims under Stone v. Powell.” Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980), citing Caver v. Alabama, 577 F.2d 1188 (5th Cir. 1978). See also Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir. 1978). Because our holding is based on Goodwin’s sixth amendment claim of ineffective assistance of counsel, however, we find Stone v. Powell and its Former Fifth Circuit progeny inapplicable. The Stone Court was genuinely concerned with the costs and benefits of the exclusionary rule. The primary justification for the exclusionary rule is the deterrent effect on constitutionally impermissible police activity. As Stone indicates, however, illegal police conduct is not likely to dissipate with the threat of having evidence ruled inadmissible five years later in a federal habeas corpus proceeding. Therefore, under principles of federal-state comity, the federal court is an inappropriate forum to determine whether a fourth amendment violation exists for purposes of exclusion when the opportunity for that same determination has been previously provided in the state courts. See Stone, 428 U.S. at 489-95, 96 S.Ct. at 3050-53; O’Berry, 546 F.2d at 1214 nn.15 & 16. We find nothing in this line of reasoning, however, that prevents a federal court from determining whether a defense has been adequately investigated and prepared and therefore, whether defense counsel was effective.

Case#11 Brady v. Maryland

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U.S. Supreme Court
BRADY v. MARYLAND, 373 U.S. 83 (1963)
373 U.S. 83 
No. 490.
Argued March 18-19, 1963.
Decided May 13, 1963.

In separate trials in a Maryland Court, where the jury is the judge of both the law and the facts but the court passes on the admissibility of the evidence, petitioner and a companion were convicted of first-degree murder and sentenced to death. At his trial, petitioner admitted participating in the crime but claimed that his companion did the actual killing. In his summation to the jury, petitioner’s counsel conceded that petitioner was guilty of murder in the first degree and asked only that the jury return that verdict “without capital punishment.” Prior to the trial, petitioner’s counsel had requested the prosecution to allow him to examine the companion’s extrajudicial statements. Several of these were shown to him; but one in which the companion admitted the actual killing was withheld by the prosecution and did not come to petitioner’s notice until after he had been tried, convicted and sentenced and after his conviction had been affirmed by the Maryland Court of Appeals. In a post-conviction proceeding, the Maryland Court of Appeals held that suppression of the evidence by the prosecutor denied petitioner due process of law, and it remanded the case for a new trial of the question of punishment, but not the question of guilt, since it was of the opinion that nothing in the suppressed confession “could have reduced [petitioner’s] offense below murder in the first degree.” Held: Petitioner was not denied a federal constitutional right when his new trial was restricted to the question of punishment; and the judgment is affirmed. Pp. 84-91.

(a) Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Pp. 86-88.
(b) When the Court of Appeals restricted petitioner’s new trial to the question of punishment, it did not deny him due process or equal protection of the laws under the Fourteenth Amendment, since the suppressed evidence was admissible only on the issue of punishment. Pp. 88-91.
226 Md. 422, 174 A. 2d 167, affirmed. [373 U.S. 83, 84] 
E. Clinton Bamberger, Jr. argued the cause for petitioner. With him on the brief was John Martin Jones, Jr.

Thomas W. Jamison III, Special Assistant Attorney General of Maryland, argued the cause for respondent. With him on the brief were Thomas B. Finan, Attorney General, and Robert C. Murphy, Deputy Attorney General.

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BRENNAN.

Petitioner and a companion, Boblit, were found guilty of murder in the first degree and were sentenced to death, their convictions being affirmed by the Court of Appeals of Maryland. 220 Md. 454, 154 A. 2d 434. Their trials were separate, petitioner being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that Boblit did the actual killing. And, in his summation to the jury, Brady’s counsel conceded that Brady was guilty of murder in the first degree, asking only that the jury return that verdict “without capital punishment.” Prior to the trial petitioner’s counsel had requested the prosecution to allow him to examine Boblit’s extrajudicial statements. Several of those statements were shown to him; but one dated July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner’s notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.

Petitioner moved the trial court for a new trial based on the newly discovered evidence that had been suppressed by the prosecution. Petitioner’s appeal from a denial of that motion was dismissed by the Court of Appeals without prejudice to relief under the Maryland [373 U.S. 83, 85]   Post Conviction Procedure Act. 222 Md. 442, 160 A. 2d 912. The petition for post-conviction relief was dismissed by the trial court; and on appeal the Court of Appeals held that suppression of the evidence by the prosecution denied petitioner due process of law and remanded the case for a retrial of the question of punishment, not the question of guilt. 226 Md. 422, 174 A 2d 167. The case is here on certiorari, 371 U.S. 812 . 1 

The crime in question was murder committed in the perpetration of a robbery. Punishment for that crime in Maryland is life imprisonment or death, the jury being empowered to restrict the punishment to life by addition of the words “without capital punishment.” 3 Md. Ann. Code, 1957, Art. 27, 413. In Maryland, by reason of the state constitution, the jury in a criminal case are “the Judges of Law, as well as of fact.” Art. XV, 5. The question presented is whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment. [373 U.S. 83, 86] 

We agree with the Court of Appeals that suppression of this confession was a violation of the Due Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the main on two decisions from the Third Circuit Court of Appeals - United States ex rel. Almeida v. Baldi, 195 F.2d 815, and United States ex rel. Thompson v. Dye, 221 F.2d 763 - which, we agree, state the correct constitutional rule.

This ruling is an extension of Mooney v. Holohan, 294 U.S. 103, 112 , where the Court ruled on what nondisclosure by a prosecutor violates due process:

"It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."
In Pyle v. Kansas, 317 U.S. 213, 215 -216, we phrased the rule in broader terms:
“Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103 .” [373 U.S. 83, 87] 
The Third Circuit in the Baldi case construed that statement in Pyle v. Kansas to mean that the “suppression of evidence favorable” to the accused was itself sufficient to amount to a denial of due process. 195 F.2d, at 820. In Napue v. Illinois, 360 U.S. 264, 269 , we extended the test formulated in Mooney v. Holohan when we said: “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” And see Alcorta v. Texas, 355 U.S. 28 ; Wilde v. Wyoming, 362 U.S. 607 . Cf. Durley v. Mayo, 351 U.S. 277, 285 (dissenting opinion).
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” 2 A prosecution that withholds evidence on demand of an accused which, if made available, [373 U.S. 83, 88]   would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.

The question remains whether petitioner was denied a constitutional right when the Court of Appeals restricted his new trial to the question of punishment. In justification of that ruling the Court of Appeals stated:

"There is considerable doubt as to how much good Boblit’s undisclosed confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was Brady’s hands or Boblit’s hands that twisted the shirt about the victim’s neck… . [I]t would be `too dogmatic’ for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.
“Not without some doubt, we conclude that the withholding of this particular confession of Boblit’s was prejudicial to the defendant Brady… .
“The appellant’s sole claim of prejudice goes to the punishment imposed. If Boblit’s withheld confession had been before the jury, nothing in it could have reduced the appellant Brady’s offense below murder in the first degree. We, therefore, see no occasion to retry that issue.” 226 Md., at 429-430, 174 A. 2d, at 171. (Italics added.) [373 U.S. 83, 89] 
If this were a jurisdiction where the jury was not the judge of the law, a different question would be presented. But since it is, how can the Maryland Court of Appeals state that nothing in the suppressed confession could have reduced petitioner’s offense “below murder in the first degree”? If, as a matter of Maryland law, juries in criminal cases could determine the admissibility of such evidence on the issue of innocence or guilt, the question would seem to be foreclosed.
But Maryland’s constitutional provision making the jury in criminal cases “the Judges of Law” does not mean precisely what it seems to say. 3 The present status of that provision was reviewed recently in Giles v. State, 229 Md. 370, 183 A. 2d 359, appeal dismissed, 372 U.S. 767 , where the several exceptions, added by statute or carved out by judicial construction, are reviewed. One of those exceptions, material here, is that “Trial courts have always passed and still pass upon the admissibility of evidence the jury may consider on the issue of the innocence or guilt of the accused.” 229 Md., at 383, 183 A. 2d, at 365. The cases cited make up a long line going back nearly a century. Wheeler v. State, 42 Md. 563, 570, stated that instructions to the jury were advisory only, “except in regard to questions as to what shall be considered as evidence.” And the court “having such right, it follows of course, that it also has the right to prevent counsel from arguing against such an instruction.” Bell v. State, 57 Md. 108, 120. And see Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045; Dick v. State, 107 Md. 11, 21, 68 A. 286, 290. Cf. Vogel v. State, 163 Md. 267, 162 A. 705. [373 U.S. 83, 90] 

We usually walk on treacherous ground when we explore state law, 4 for state courts, state agencies, and state legislatures are its final expositors under our federal regime. But, as we read the Maryland decisions, it is the court, not the jury, that passes on the “admissibility of evidence” pertinent to “the issue of the innocence or guilt of the accused.” Giles v. State, supra. In the present case a unanimous Court of Appeals has said that nothing in the suppressed confession “could have reduced the appellant Brady’s offense below murder in the first degree.” We read that statement as a ruling on the admissibility of the confession on the issue of innocence or guilt. A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge’s ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record. 5 But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a [373 U.S. 83, 91]   bifurcated trial (cf. Williams v. New York, 337 U.S. 241 ) denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.

[ Footnote 1 ] Neither party suggests that the decision below is not a “final judgment” within the meaning of 28 U.S.C. 1257 (3), and no attack on the reviewability of the lower court’s judgment could be successfully maintained. For the general rule that “Final judgment in a criminal case means sentence. The sentence is the judgment” (Berman v. United States, 302 U.S. 211, 212 ) cannot be applied here. If in fact the Fourteenth Amendment entitles petitioner to a new trial on the issue of guilt as well as punishment the ruling below has seriously prejudiced him. It is the right to a trial on the issue of guilt “that presents a serious and unsettled question” (Cohen v. Beneficial Loan Corp., 337 U.S. 541, 547 ) that “is fundamental to the further conduct of the case” (United States v. General Motors Corp., 323 U.S. 373, 377 ). This question is “independent of, and unaffected by” (Radio Station WOW v. Johnson, 326 U.S. 120, 126 ) what may transpire in a trial at which petitioner can receive only a life imprisonment or death sentence. It cannot be mooted by such a proceeding. See Largent v. Texas, 318 U.S. 418, 421 -422. Cf. Local No. 438 v. Curry, 371 U.S. 542, 549 .
[ Footnote 2 ] Judge Simon E. Sobeloff when Solicitor General put the idea as follows in an address before the Judicial Conference of the Fourth Circuit on June 29, 1954: “The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client’s chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.”

[ Footnote 3 ] See Dennis, Maryland’s Antique Constitutional Thorn, 92 U. of Pa. L. Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 Md. St. Bar Assn. Rept. 246, 253-254.

[ Footnote 4 ] For one unhappy incident of recent vintage see Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4 , that replaced an earlier opinion in the same case, 309 U.S. 703 .

[ Footnote 5 ] “In the matter of confessions a hybrid situation exists. It is the duty of the Court to determine from the proof, usually taken out of the presence of the jury, if they were freely and voluntarily made, etc., and admissible. If admitted, the jury is entitled to hear and consider proof of the circumstances surrounding their obtention, the better to determine their weight and sufficiency. The fact that the Court admits them clothes them with no presumption for the jury’s purposes that they are either true or were freely and voluntarily made. However, after a confession has been admitted and read to the jury the judge may change his mind and strike it out of the record. Does he strike it out of the jury’s mind?” Dennis, Maryland’s Antique Constitutional Thorn, 92 U. of Pa. L. Rev. 34, 39. See also Bell v. State, supra, at 120; Vogel v. State, 163 Md., at 272, 162 A., at 706-707.

Separate opinion of MR. JUSTICE WHITE.

1. The Maryland Court of Appeals declared, “The suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process” without citing the United States Constitution or the Maryland Constitution which also has a due process clause. * We therefore cannot be sure which Constitution was invoked by the court below and thus whether the State, the only party aggrieved by this portion of the judgment, could even bring the issue here if it desired to do so. See New York City v. Central Savings Bank, 306 U.S. 661 ; Minnesota v. National Tea Co., 309 U.S. 551 . But in any event, there is no cross-petition by the State, nor has it challenged the correctness of the ruling below that a new trial on punishment was called for by the requirements of due process. In my view, therefore, the Court should not reach the due process question which it decides. It certainly is not the case, as it may be suggested, that without it we would have only a state law question, for assuming the court below was correct in finding a violation of petitioner’s rights in the suppression of evidence, the federal question he wants decided here still remains, namely, whether denying him a new trial on guilt as well as punishment deprives him of equal protection. There is thus a federal question to deal with in this Court, cf. Bell v. Hood, 327 U.S. 678 , [373 U.S. 83, 92]   wholly aside from the due process question involving the suppression of evidence. The majority opinion makes this unmistakably clear. Before dealing with the due process issue it says, “The question presented is whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment.” After discussing at some length and disposing of the suppression matter in federal constitutional terms it says the question still to be decided is the same as it was before: “The question remains whether petitioner was denied a constitutional right when the Court of Appeals restricted his new trial to the question of punishment.”

The result, of course, is that the due process discussion by the Court is wholly advisory.

2. In any event the Court’s due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery. Instead, I would leave this task, at least for now, to the rulemaking or legislative process after full consideration by legislators, bench, and bar.

3. I concur in the Court’s disposition of petitioner’s equal protection argument.

[ Footnote * ] Md. Const., Art. 23; Home Utilities Co., Inc., v. Revere Copper & Brass, Inc., 209 Md. 610, 122 A. 2d 109; Raymond v. State, 192 Md. 602, 65 A. 2d 285; County Comm’rs of Anne Arundel County v. English, 182 Md. 514, 35 A. 2d 135; Oursler v. Tawes, 178 Md. 471, 13 A. 2d 763.

MR. JUSTICE HARLAN, whom MR. JUSTICE BLACK joins, dissenting.

I think this case presents only a single federal question: did the order of the Maryland Court of Appeals granting a new trial, limited to the issue of punishment, violate petitioner’s Fourteenth Amendment right to equal protection? 1 In my opinion an affirmative answer would [373 U.S. 83, 93]   be required if the Boblit statement would have been admissible on the issue of guilt at petitioner’s original trial. This indeed seems to be the clear implication of this Court’s opinion.

The Court, however, holds that the Fourteenth Amendment was not infringed because it considers the Court of Appeals’ opinion, and the other Maryland cases dealing with Maryland’s constitutional provision making juries in criminal cases “the Judges of Law, as well as of fact,” as establishing that the Boblit statement would not have been admissible at the original trial on the issue of petitioner’s guilt.

But I cannot read the Court of Appeals’ opinion with any such assurance. That opinion can as easily, and perhaps more easily, be read as indicating that the new trial limitation followed from the Court of Appeals’ concept of its power, under 645G of the Maryland Post Conviction Procedure Act, Md. Code, Art. 27 (1960 Cum. Supp.) and Rule 870 of the Maryland Rules of Procedure, to fashion appropriate relief meeting the peculiar circumstances of this case, 2 rather than from the view that the Boblit statement would have been relevant at the original trial only on the issue of punishment. 226 Md., at 430, 174 A. 2d, at 171. This interpretation is indeed fortified by the Court of Appeals’ earlier general discussion as to the admissibility of third-party confessions, which falls short of saying anything that is dispositive [373 U.S. 83, 94]   of the crucial issue here. 226 Md., at 427-429, 174 A. 2d, at 170. 3 

Nor do I find anything in any of the other Maryland cases cited by the Court (ante, p. 89) which bears on the admissibility vel non of the Boblit statement on the issue of guilt. None of these cases suggests anything more relevant here than that a jury may not “overrule” the trial court on questions relating to the admissibility of evidence. Indeed they are by no means clear as to what happens if the jury in fact undertakes to do so. In this very case, for example, the trial court charged that “in the final analysis the jury are the judges of both the law and the facts, and the verdict in this case is entirely the jury’s responsibility.” (Emphasis added.)

Moreover, uncertainty on this score is compounded by the State’s acknowledgment at the oral argument here that the withheld Boblit statement would have been admissible at the trial on the issue of guilt. 4 

In this state of uncertainty as to the proper answer to the critical underlying issue of state law, and in view of the fact that the Court of Appeals did not in terms [373 U.S. 83, 95]   address itself to the equal protection question, I do not see how we can properly resolve this case at this juncture. I think the appropriate course is to vacate the judgment of the State Court of Appeals and remand the case to that court for further consideration in light of the governing constitutional principle stated at the outset of this opinion. Cf. Minnesota v. National Tea Co., 309 U.S. 551 .

[ Footnote 1 ] I agree with my Brother WHITE that there is no necessity for deciding in this case the broad due process questions with which the Court deals at pp. 86-88 of its opinion.

[ Footnote 2 ] Section 645G provides in part: “If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper.” Rule 870 provides that the Court of Appeals “will either affirm or reverse the judgment from which the appeal was taken, or direct the manner in which it shall be modified, changed or amended.”

[ Footnote 3 ] It is noteworthy that the Court of Appeals did not indicate that it was limiting in any way the authority of Day v. State, 196 Md. 384, 76 A. 2d 729. In that case two defendants were jointly tried and convicted of felony murder. Each admitted participating in the felony but accused the other of the homicide. On appeal the defendants attacked the trial court’s denial of a severance, and the State argued that neither defendant was harmed by the statements put in evidence at the joint trial because admission of the felony amounted to admission of guilt of felony murder. Nevertheless the Court of Appeals found an abuse of discretion and ordered separate new trials on all issues.

[ Footnote 4 ] In response to a question from the Bench as to whether Boblit’s statement, had it been offered at petitioner’s original trial, would have been admissible for all purposes, counsel for the State, after some colloquy, stated: “It would have been, yes.” [373 U.S. 83, 96] 

Life of Pi, Only 3.14% Accurate

Life of Pi, Only 3.14% Accurate

Scott Symington

An interesting encounter at sea is reported in the Naval Institute’s official magazine, Proceedings. A battleship had been at sea on maneuvers in heavy weather. A lookout reported a light in the distance, so the captain had the signalman send a message: “We are on a collision course. Advise you change course 20 degrees.” Minutes later a signal came back: “Advisable for you to change course 20 degrees.” The captain angrily ordered that another signal be sent: “I’m a captain. Change course 20 degrees.” Again came a reply: “I’m a seaman, second class. You had better change course 20 degrees.” Furious by this point, the captain barked a final threat: “I’m a battleship with a full naval escort. Change course 20 degrees!” The signal came back: “I’m a lighthouse.” The captain changed his course.1

Truth is like a lighthouse, both in the way we may stand on it as a foundation in the midst of the waves life consistently brings, and in the guidance it offers to navigate effectively through life. There are many sources of power, which that light of truth can draw upon, two of which, science and religion, are focused upon in Yann Martel’s, Life of Pi.

I haven’t seen the movie yet, but I expect it to be interesting, touching, an opportunity for incredible visuals, and a thoughtful movie – as long as you leave your logic at the concessions stand. Throughout the story, phenomenal symbolism and beauty are used in this fictional account to put a favorable spotlight on postmodernism, the belief that includes ideas such as: there is no absolute truth or authority to provide objective truth about reality, and all ideas are equally open to interpretation. Hinduism, relativism and other beliefs have added corollaries, such as: it is warranted to stand on whatever belief you want, and all beliefs can lead to the same top of the mountain experience. This article follows the tradition of countless prior works, which attempt to close the curtain on this nice sounding, but invalid belief, and will do so in three parts: 1) explain the beliefs the Life of Pi preaches, 2) discuss the appeal and 3.14% accuracy of that belief, 3) and briefly note why the incoherence of this idea needs to be recognized for the good of your non-fictional life.

Pi’s Postmodernism

Pi (his birth name comes to be replaced by this mathematical term) is raised in India by his parents, who are portrayed as secular modernists believing primarily in the power of science. Science comes into play often in the zoo his parents run. Pi’s favorite teacher shares the worship of science in his atheism. In addition, part one of the book also shows Pi as thirsting for spiritual knowledge, and after a visit to a Hindu temple, a Catholic church, and a visit with a Muslim baker, converts to all three faiths. Well “converts” isn’t the right word, because Pi accepts and incorporates all three faiths.

In one fortuitous incident, Pi’s pandit (Hindu scholar), priest, and imam (a Muslim leader) all run into Pi at the same time and argue over both him, and whose religion is best. Pi ends the embarrassing display by answering, “Bapu Ghandi said, ‘All religions are true.’ I just want to love God.”2 Pi is shown as meekly giving a heartfelt answer, and simultaneously silencing all discussion on the issue, which endears the audience to him and his views.

Pi evidently doesn’t care to, or even realize that such a claim can be tested for validity and philosophical soundness. His statement is treated in the book as a conversation ender, but that is where real thinking, and scientific, historical, and philosophical interaction with the differing ideas need to engage. Instead of any mental heavy-lifting with these issues, Pi is just supplied with religious appearances and pantheist unity with nature experiences.

So now we have a mathematically named child from secular upbringing, who simultaneously is so spiritual (whatever the author means by “spiritual”) that he adheres to three other worldviews. This is grasping postmodernism by the horns and attempting to ride that bull through the life struggles that follow. Will having one foot (well, one foot on one, one foot on another, and each hand on the remaining two worldviews, like worldview twister) on four different worldview foundations benefit or harm Pi, and validate or invalidate postmodernism? The remainder of the book places Pi in the fantastic position of having to survive on a lifeboat in the Pacific, and with a Bengal tiger passenger – postmodernism is put to the test – fictionally, which is fitting.

Part two of the book covers over two hundred days at sea, with numerous instances that require the productive utility of science and faith. Pi uses science to keep the tiger tamed, and provide food and water. But even with that use of science, at times survival seems lost, requiring Pi to utilize resources from religion, including religious experiences. So based on the experiences of Pi, all worldviews seem to have truth, great things to offer, and can all harmoniously be used for the benefit of one’s life: science to explain how things work in life, and when it reaches a limit, all the religions come into appropriate use for guiding one’s life.

The author is drawing an animated picture of the NOMA theory of the late Harvard professor, Stephen J. Gould, who provided a good description of a very common thought regarding science and theology. Gould claims that the two great tools of human understanding (science and religion) compliment each other in their totally separate realms: science as gaining knowledge and understanding about the factual state of the natural world, and religion when considering spiritual meaning and ethical values. While the eminent professor has credentials longer than this article, he was simply wrong, and in a four-part article I will post later, NOMA will be disproven and the real relationship between science and theology (a Symbiotic relationship, SOMA) will be explained.

Martel, however, has boarded Gould’s boat. The two characters, Pi and Richard Parker (name of the tiger) are on opposite sides of the boat on their journey, yet they have to get along. This is an allegory symbolizing science and religion being separated. Now I am unsure if Pi represents the spiritual side, as this kid is so super-spiritual he has three faiths, and the tiger is the science of raw nature, or the tiger represents divine-like beauty and power, and Pi represents science as he uses it on the tiger and ocean to survive. But either way, both science and faith are used to get along, and Pi even becomes more like Richard Parker along the journey.

A further connection is made within Pi himself, as the two passengers he carries within himself, science and faith, are reconciled during the journey.

Part three of the story brings another promotion of postmodernism. Investigators question Pi about the ordeal. Initially Pi tells the story, but the detectives do not believe him. Pi comments how our perceptions determine much or reality, which is right out of the postmodernist handbook, but eventually retells the story without the animals. That second story is terrible. Instead of the animals involved, his mom, a cruel cook, a young sailor, and a lot of beastly actions are involved.

Now the question is posed to the investigators, and to us, what story do you prefer? And while there are details in the account with the animals that are problematic, such as the carnivorous island, the readers, and the investigators in their final report, are challenged and encouraged to accept the “better story.” And so it goes with God is the connection we are encouraged to make in our own lives. Maybe science is all that is needed to explain the story, but we have to force faith to fit in too, because it makes for a better, more easily livable story.

Bottom-line: Pi shows no need to make a decision between contradicting belief systems, on the contrary, it is actually useful to bring them all into the boat. This is an apologetic for NOMA, Hinduism, and postmodernism.

Pi is 3.14% Accurate

There are appealing features of Pi’s postmodern approach: you can believe whatever you want; all ideas have inherent validity and value; others who disagree with you do so only from their perspective, not from truth, facts or real knowledge. It’s like a world where we are all of the same political party, or rooting for the same team. A nice thought, the only problem with it is logic and reality. The comfortable features may be what allows this idea to survive longer than actual merit warrants.

Don’t take this the wrong way, I would argue that every person has inherent value, and even those whom we disagree with must be treated with the dignity, respect and love that follows from their inherent worth. However, while all people are created equal, all ideas are not, and as Frank Turek has noted, ideas are in the free marketplace, where cross-examination is appropriate and beneficial. Tolerance does not mean we cannot disagree, on the contrary, tolerance occurs when we disagree with someone, yet still treat them as we hope others will treat us. In fact, if one cares about another person, they will not hold up, but instead put down inaccurate beliefs, which have a reasonable likelihood of leading to negative consequences. Caring for and respecting Pi would be especially easy, he is a lovable character, and Martel even writes in a soft, but insightful and engaging way. Excellent read, but the message leaves a bad taste in the mouth, err, mind.

Examination of Martel and Pi’s perspective reveals a small percentage of truth. There are some good things in each of those religions, but is that surprising? If nothing appealing were in those belief systems, those systems would likely have folded long ago. Also, religious beliefs, even if false, may provide “spiritual” feelings, experiences, and even hope in a situation where one has nothing else – an actual Marxist opiate. The non-controversial point that science provides factual knowledge about the physical world is also included, but not central to the primary postmodernist contention. These account for the approximately 3.141592% accuracy in the primary claim being promoted through Pi’s experience. I round off to 3.14% because I do not want to exaggerate my level of certainty. After all, you can make numbers say anything you want, 31.4% of all people know that. Seriously, a quantitative approach is not really applicable here, and the belief in postmodernism is refuted at an even more basic level, logic.

What Martel, and unfortunately many readers and movie goers, fails to realize is the real contrast wasn’t horizontally in the boat between the boy and the tiger, it was vertically between the very deep ocean and the very shallow thinking in the boat. Five examples are given below.

The Shallow Thinking in the Deep Ocean

First, Pi buys into the shallow connotation of “faith” common in our culture. Many have come to believe faith means having some vague or insubstantial belief, based on feelings or just hopes, entirely empty of supportive reasons. While that type of “faith” is demonstrated by people in diverse areas of life, to conflate all “faith” into that version is very narrow-sighted. Faith always has three parts: 1) The object of faith (for example, a chair), 2) The content of the faith (I believe the chair will support me), 3) And the reason(s) for the faith (haven’t been dropped by a chair yet, it looks sturdy, I don’t see Ashton Kutcher from Punk’d).

When Pi accepts the three religions, he does so based on a singular experience or feeling, because he liked something he saw, or felt and wanted to satisfy a spiritual need. He had a paucity of reasons, and simply assumed that was inherent with faith in a religion. Good thing Pi didn’t run into Marshall Applewhite of the Heaven’s Gate cult, or before ever getting on that fateful boat we may have found Pi laying on a bed wearing Nike’s and with an empty glass of poisoned Kool-Aid.

If we make a choice without any supportive reasons, aside from feelings or wishful thinking, then we are acting in the “blind faith” fitting both what our culture commonly associates with faith, and Pi’s acceptance of three religions. Sometimes we even believe in something against the available evidence, which is another type of faith, delusional faith. But, when we do not have certainty, and trust in something based on supportive reasons, then that is the most common faith we operate on throughout life – a reasoned faith.

We do not claim to be sitting or career agnostics, and refrain from using chairs or working a job because we lack certainty. We use the reasons we do have, and make our choices. Pi never attaches faith to science though (unless I missed it), event in his later studies in science and religion. Yet even those working in science recognize that many of their understandings and beliefs are far from certain, but can be trusted or used for direction based upon sufficient supportive reasons. We all exercise faith in almost all the decisions we make, and even Pi’s atheist dad and teacher exercised faith in animal taming and teaching biology theories respectively. Pi himself, in utilizing science to survive, was exercising faith that those techniques would work. Therefore, to relegate only the religious beliefs to faith, and to assume it must be blind faith is short-sighted. Belief in God (called theism), belief there is no God (atheism), belief we cannot know if God exists or not (agnosticism) are ALL faith beliefs.

Religious beliefs make claims about the factual state of reality, and therefore, can be tested scientifically, historically, philosophically, etc. Pi was given only religious appearances or subjective experiences to bolster his faith, which fits right in line with postmodern claims. If those experiences are the only support for his beliefs in God, then the kid should consider a psychiatric visit as his contradictory beliefs cannot all be true and validated. This brings us to a second error in Pi’s reasoning.

Second, the belief in the three contradictory religions is not blind faith, but delusional. Ghandi may have been a social-activist-visionary, but logic was not his strong point when it came to beliefs. “All religions are true,” violates a basic law of thought or logic, the law of non-contradiction. Contradictions are impossible, like a one-ended stick, or “My biological sister is an only child.”

Different paths to the top of a mountain are possible because they do not contradict each other, but different beliefs do. Wherever beliefs contradict each other, only one at most can fit reality and be true. The world religions may have some similarities, but it’s the differences that make all the difference.

You are offered two pills: both are white, the same size, color, smell, and taste, except that one is aspirin, and the other includes arsenic. So, one will cure a headache, and the other can kill you. The difference(s) make all the difference. If worldviews differ on even one of the big questions in life, tremendous impacts will follow, and religions differ not in marginal areas, but in the central points.

I personally would want to know the false ingredients, even in the belief I currently accept. If Jesus was crucified for our justification and resurrected, then there is truth and reality supporting a life lived on that foundation. If not, as Islam, atheism and other belief systems claim, that is catastrophic to Christian beliefs, and if one does not want their choices, thoughts, responses, priorities, goals, and direction in life to fall into the consequences of inaccurate guidance, then another foundation better be sought.

A third entirely false idea is the Hindu, relativist, and postmodern claim that there is no absolute truth. Two simple tests expose this idea. First, apply the claim to itself, in any of its common iterations, as shown below, and in I Don’t Have Enough Faith to be an Atheist.

1. There is no truth … Is THAT true?

2. You can’t know truth … How do you then know that is truth?

3. All truth is relative … Is that a relative truth?

4. It’s all just opinions … Is that just your opinion, or is that truth?

5. No one has the truth … But one, you, claim to have the truth?

6. It’s true for you, but not for me … Is that true for everybody, including you and me?

7. You ought not judge, or be intolerant … Isn’t that a judgmental statement, intolerant of those who do show judgment?

8. Whatever, I’ll do what I want … Cannot argue that, you can do what you want,

and you will slam against the hard reality of ignored truth.

There is also the Hindu belief in maya: ultimate realities are an illusion. If so, how does one holding this belief claim the ultimate reality of maya, if ultimate realities are not knowable?  Maybe they are falling for an illusion in believing maya. The claims are contradictory, and their proof would be their disproof. While Pi is an irrational number, it doesn’t contradict itself as Martel’s Pi repeatedly does in trying to support his belief claims.

Another test is to attempt to use any of these claims in court, when trying to fight a ticket for being clocked at 100 in a 50 mph zone. After a third oncologist notifies you of your serious stage of cancer, which needs to be dealt with, will declaring no one knows the truth, there is no truth, you ought not judge, or any other variation alter the reality of your situation? The claim doesn’t work in reality.

If there is one instance of absolute truth, then absolute truth exists. Anything that goes against something that is true – goes against reality – and is excluded from being true. Some people expected the Patriots to win the Super Bowl for the 2011 NFL season, others really wanted the Giants, and some sad fans even hoped the Lions would win. There were even similarities between the three teams, but there were also differences, and the differences are going to play out on the day where it counts. The bottom-line is that final scoreboard. The Giants won that year, that truth is universal, true for all people, in all places and times, and excludes ALL contrary claims. It is not being narrow-minded, intolerant, arrogant, or mean, it is simply the truth.

The beliefs espoused by Pi would also reject universal truth. Universal truth is true for all people, in all places, and at all times. But universality is in the nature of truth. People may look at things with different opinions, cultural perspectives, or hypotheses, but different views do not change the truth. Do not confuse truth and reality with opinions, perceptions, etc. Different cultures and times may not believe an atomic bomb was dropped on Hiroshima, Japan – but the truth that it did happen is still the reality for all people, in all places, and for all time.

The fourth error is another logic mistake, a false dilemma. Pi supposedly sat in his boat on the horns of a dilemma, science or faith, as though believing in either was mutually exclusive to the other. The whole dichotomy between science on one side and faith on the other, both in the boat and within Pi, is a false dichotomy. A third option splits the horns of the dilemma: science and theology could already be joined together in a mutually supportive view of reality. This third option I support in an article on NOMA v. SOMA, mentioned earlier.

For now, we can point out that the conflict Pi was experiencing was not between science and faith as he supposed, it was between atheist naturalism, which atheists and naturalists like to equate with science, and theism and pantheism. Resolution of that conflict is impossible as atheism and theism contradict each other; one is true, the other false.

Pi, however, resolves the conflict by not even challenging atheist naturalism, assuming science explains everything in the physical world just fine without God, and simply hypothesizes spiritual things can and must exist outside the grasp or limits of science. This resolution is supported by Martel providing untestable religious experiences, and almost desperate claims that we need the spiritual when all other hope is lost, or to make sense of an otherwise terrible world. This all amounts to a very strained plea for the postmodern case, which is all the support such a delusional belief can hope to have.

It’s desirable to hear that we all create our own realities, there is never one true story, and since we have a choice, why not chose the more beautiful one and just add God in on the side (where God won’t interfere with what you want). However, wants do not create truth. If they did, then Lebron would be both in Miami, and in Cleveland still.

Instead Pi should have applied science, history, philosophy, and other fields of study on all four worldviews involved: Hinduism, Christianity, Islam, and atheist naturalism (scientism and relativism could be included too), to ensure he was founded on truth, which would not melt away when reality and consequences washed up against him. But that would not make for a best-selling book, exciting movie, or pander to what the public seems to be hungry to hear. Bringing us to the fifth problem.

Finally, Pi argues that we should believe what makes for a more comfortable life and good story now, rather than concerning ourselves with truth and consequences overall. Pi exclaims, “I know what you want. You want a story that won’t surprise you. That will confirm what you already know. That won’t make you see higher or further or differently. You want a flat story.”3 He is onto something, there is endless evidence of people frequently placing a higher priority on comfort – what they want to believe – than on the truth and overall consequences. Smokers or people in bad relationships come to mind. Those believing the link to cancer is not proven, or that he will treat me better once we get married, and letting confirmation bias take over, are people who want to stay in comfort in the short-term, regardless of evidence of long-term consequences. This can be observed with people in their worldview beliefs too. My contention is that one would only accept the beliefs espoused by Pi for exactly the reasons given in Pi’s quote above.

Pi’s last two sentences lead into the purpose for the quote. He used that quote with the investigators in part three of the book, and is basically saying the factual experiences won’t be changed whether you believe the story with the animals or without, however, the story with the animals is more appealing, and that is reason enough to accept it. The same applies to God, in his view. He is arguing that if there is something beyond the physical universe, we can’t know, and it won’t have an impact except to make for a better view of life. How does he know that we can’t know? Has he looked into the evidence available?

In the classic book by the renowned authority Huston Smith, the following observation is given: “If we were to take Hinduism as a whole – its vast literature, its complicated rituals, its sprawling folkways, its opulent art – and compress it into a single affirmation, we would find it saying: You can have what you want.”4 Isn’t that true of Pi’s perspective? Isn’t that the case with postmodernism in general? And true in all of us to an extent, but there need to be limits. Do you really want to be so open-minded your mind falls out? The limit should be when the belief will have significant consequences on our lives, or the lives of others, and when it is shown to be invalid or inferior to a better-supported belief.

If I were one of those investigators, I would investigate. Has a tiger been found in Mexico where the boat landed, what’s on the ship’s manifest, examine Pi’s boat, search for a carnivorous island, and obtain psychological examination supporting either the animal or non-animal account? The findings may not impact me much, whichever account I found to be true. On the other hand, how much more should we investigate the claims of the worldview we ourselves stand on? Whether an almighty authority created us with a purpose and has expectations of us, or not, will have an impact on us. Whether we are basing our choices, actions, responses, priorities, goals and direction in life on a worldview that is accurate, or one that is inaccurate – will have serious consequences on us.


Postmodernism, Hinduism, and Pi paint a nice story, but is it accurate and reliable? Based on just the handful of errors presented in this article, it seems the answer is no. While it may have helped Pi in his boat, all of us are in our own survival and growth journey. And when talking about our real lives, we want the ending that is best for us, and that depends on founding lives on valid ideas.

Every decision takes us down different paths. Sure there are similarities regardless of the path, but the differences make all the difference. So the worldview you take (trying to take them all is also a path, a twisted one) will carry you along a specific path, and every path brings different overall consequences, good and bad, to your life, and possible after-life.

I can predict this overall impact of worldview choice on you, your own scoreboard, and present this an a much briefer blog to be posted later, Your Obituary in Advance: The 4 Quad Approach.

It seems that our culture is still stuck in modernism, and I heard it argued that the last bastion academically for postmodernism is the English Literature department, but postmodern talk does flare up when some people attempt to appear politically correct, and in some popular media. It is legitimate for an author to explore different ideas, encouraging others to further evaluate potentially useful and relevant ideas. The problem with Life of Pi, and the motivation for this article is, postmodernism is neither relevant nor beneficial, and is evidentially bankrupt. In fact, bringing up an idea that has been disproven long ago through proof of logical incoherence, adds to the confusion and dumbing down of culture. Present any foolish idea in a catchy way, and some will be caught, as Goebbels displayed. People can sometimes be as shallow in their search as Pi, especially when reinforced with the idea that no authoritative truth exists anyway (except that authoritative truth).

I was actually on a ship that ran into a lighthouse. The judgment-impaired captain followed an incorrect path. Worldview truth can be just another immovable obstacle that we may ram up against in our existence, and in the collision between us and truth, we receive all the consequences. Or, truth can be a lighthouse to found our decisions and path upon, and provide the reliable foundation of support to ensure we are traveling a path that is best for us, and for those close to us.


1)   Frank Koch, Proceedings, as cited in Max Lucado, In the Eye of the Storm, Word Publishing, 1991, p. 153.

2)    Yann Martel, Life of Pi, New York: Houghton Mifflin Harcourt Publishing Company, 2001, p. 69

3)    Martel, p. 302

4)     Huston Smith, The World’s Religions, New York: HarperCollins Publishers, 1991, p.13.

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4 Responses to Life of Pi, Only 3.14% Accurate

Scott Symington December 20, 2012
Whoa, just saw the movie. The book was so well-written, and a mix of such harsh realities and beautiful realities, that I expected a disappointing movie. However, the movie was excellent. The acting, scenes and overall show was captivating, like the book.

Also, while the Navy account provided in my intro has been published in a number of books, according to it is inaccurate. I meant to check snopes once the article was finished, and before posting – I forgot – my bad.

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skinnercitycyclist January 2, 2013
I have to admit, I am enjoying the current Christianist vogue for “postmodernism.” David Barton has been braying his misunderstanding of it for some time now, glad to see others with rather higher intellectual ability mucking in. Still a gross misunderstanding of course.

I like to think of postmodernism(s) as the lit-crit equivalent of quantum physics/string theory. You take a highly specialized academic theory (string), you inject it with pop culture, and voi-là! you get “What in the $%#@ Do We Know?” Similarly, people who kvetch about “postmodernism” also seem clueless, seemingly thinking that there are people walking around with their straw man as a practical, work-a-day philosophy of life on which they base their daily actions. Let me just say as one who has studied lit at the graduate level in the 90′s, postmodernism is a great critical tool but a poor philosophy of life when taken to its logical extremes, rather like religion, although PM has the advantage of being demonstrable.

I enjoy your blog. I have noticed that UK Christians do not seem to be as stupid as US Christians, keep up the good work.

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Scott Symington January 2, 2013
skinnercitycyclist makes a good observation about pop-culture-injected version of quantum physics & postmodernism. It is that pop-culture slice of postmodernism I addressed not the whole concept, which I should have made clear. My bad. I agree that PM functions as a critical tool, and that taken to logical extremes falls into weak philosophy for life, which is the philosophy the protagonist uses in the book.
Obviously a thoughtful commenter, which made it surprising to then read the claim about religion. How does Christianity make for a worse philosophy of life than whatever the commenter stands upon?

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Scott Symington January 2, 2013
Oh, I forgot to touch upon the “demonstrable” comment. If you mean demonstrated to the point of proof or certainty, then I agree that we will not have certainty of atheism or theism until we are either decomposing into our component elements, or standing before our creator. Or, was the statement meant as a claim that there is not evidence supporting religious claims? Further, does skinnycitycyclist claim that the belief they hold to (be it atheism, agnosticism, theism, pantheism, etc) is demonstrable?