231 F.3d 265 (6th Cir. 2000), 91-5502, Gall v Parker

Docket Nº:91-5502; 94-6376
Citation:231 F.3d 265
Party Name:Eugene Williams Gall, Jr., Petitioner-Appellant, v. Phil Parker, Warden, Respondent-Appellee.
Case Date:October 30, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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231 F.3d 265 (6th Cir. 2000)

Eugene Williams Gall, Jr., Petitioner-Appellant,


Phil Parker, Warden, Respondent-Appellee.

Nos. 91-5502; 94-6376

United States Court of Appeals, Sixth Circuit

October 30, 2000

Argued: November 3, 1999

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 87-00056--William O. Bertelsman, District Judge.

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Edward C. Monahan, Erwin W. Lewis, DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant.

Valarie L. Salven, General Counsel, Department of Worker's Claims, Frankfort KY, David A. Sexton, Assistant Attorney General, Frankfort, KY, Ian G. Sonego, Assistant Attorney General, Rickie L. Pearson, ASSISTANT ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: MARTIN, Chief Judge; JONES and GUY, Circuit Judges.

JONES, J., delivered the opinion of the court, in which MARTIN, C. J., joined. GUY, J. (pp. 337-47), delivered a separate opinion concurring in part and dissenting in part.


NATHANIEL R. JONES, Circuit Judge.

Petitioner-Appellant Eugene Gall ("Gall") appeals the denial of his petition for habeas corpus challenging his conviction and death sentence for the rape and murder of a young girl in 1978. There is little doubt that Gall committed the acts in question. Instead, the central issue contested at trial was his mental state at the time of the killing. The case is further complicated by the numerous errors of constitutional magnitude that Gall claims occurred during his trial and appeal, as well as by long-standing confusion regarding the meaning and role of extreme emotional disturbance in Kentucky law. We conclude that Gall's trial, conviction and appeal contravened fundamental constitutional tenets. We are therefore compelled to REVERSE the district court's denial of habeas relief and REMAND for a conditional granting of the writ.


This is indeed a tragic case. The primary tragedy is that a young girl's life was taken in the most cruel and grisly fashion. It is also evident that Eugene Gall was the man who cut her life short. And naturally, the death and Gall's culpability engendered an understandably outraged and angry public as well as a prosecution determined to convict. In these situations, it is a court's duty to ensure that amid the tragedy, anger and outrage over hideous acts perpetrated, a fair and constitutional trial takes place. Constitutionally fair trials do not occur whenever a judge, jury and litigants go through the formal process of presenting arguments and examining witnesses. For a trial to be constitutionally sound requires far more: it is a trial where the prosecutor must prove all elements of a crime beyond a reasonable doubt in order to convict; where the prosecutor adheres to certain rules of conduct that guarantee a fair trial and a proper

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consideration of the defendant's theories and supporting evidence; where the jurors consider only evidence adduced by the parties and that a defendant has had an opportunity to rebut; and where a defendant enjoys the right to cross-examine adverse witnesses. When a state contemplates imposing the ultimate penalty, a constitutional trial requires jury selection procedures that avoid seating a jury predisposed to a death sentence, and also allows each individual juror to give effect to any mitigating evidence. It follows then that the issues raised do not lend themselves to summary treatment.

After painstakingly reviewing each of the issues raised and the extensive trial record, and minutely examining the relevant governing authorities, we agree with Gall that substantial errors occurred. The key issues contested at trial that we treat below involved Gall's mental condition, and specifically whether he was competent to stand trial, whether he was legally insane at the time of the crime, and whether he was under extreme emotional disturbance when he committed the crime. Unfortunately, an array of complicating circumstances--high publicity, Gall's own actions, trial court mistakes, overzealous prosecutorial tactics combined with inexcusable oversights, and poor defense advocacy at various stages--introduced errors into both the guilt and penalty phases of Gall's trial, as well as into his direct appeal in the state courts. Although we reject a number of Gall's arguments, we find some of the errors to have been sufficiently egregious so as to violate fundamental constitutional rights and protections.



On April 27, 1978, a Boone County grand jury indicted Gall for the rape and murder of Lisa Jansen. In a two-phase trial, the Commonwealth presented considerable evidence that Gall committed the killing, so Gall's mental state at the time of the crime became the trial's central issue. On September 30, 1978, the jury found Gall guilty of murder while engaged in the commission of rape. Finding no mitigating circumstances, the jury recommended the death penalty on October 2, and the trial court entered judgment accordingly on October 6.

Gall directly appealed the conviction on numerous grounds, but the Kentucky Supreme Court affirmed his conviction. See Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980) (Gall I). Gall's petition for a writ of certiorari was denied on March 9, 1981. See Gall v. Kentucky, 450 U.S. 989 (1981). Gall subsequently sought post-conviction relief in state court through a RCr 11.42 motion, but the Kentucky Supreme Court denied his various claims for collateral relief. See Gall v. Commonwealth, 702 S.W.2d 37 (Gall II). In July 1986, Gall filed a habeas corpus petition with the District Court of the Eastern District of Kentucky, raising twenty-five assignments of error. The magistrate recommended that the petition be dismissed, and on January 23, 1991, the district court denied the petition. On March 19, 1991, the district court denied Gall's motion to alter or amend that judgment. Gall appealed this denial on April 18, 1991.


The Kentucky Supreme Court provided a detailed account of the facts at issue:

At about 7:35 a.m. on April 5, 1978, Lisa Jansen, a 12-year-old schoolgirl, left her home in suburban Cincinnati, Ohio, for school. She was missed very shortly thereafter when she failed to arrive at the home of a friend she had planned to meet on the way and it was ascertained that she had not gone directly to school. At about 9:25 a. m. that morning Mrs. Connie Puckett, while driving her automobile along Kentucky Highway 16 from Verona, Kentucky, toward her home in Walton, Kentucky, noticed a red jacket lying on the side of

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the highway near the intersection of Stephenson-Mill Road. She stopped and retrieved it, thinking that probably it belonged to one of the students attending the elementary school at Verona. She was positive that the jacket had not been there when she passed the same place a few minutes earlier on her way to Verona. Upon resuming her trip homeward she observed an open schoolbook lying in the road, stopped and picked it up. It bore the name of Lisa Jansen, and when Mrs. Puckett arrived back in Walton she telephoned the school at Verona. The school principal advised her that no one by the name of Lisa Jansen was enrolled there, but later in the day he called back and told Mrs. Puckett that a television newscast had reported a Lisa Jansen as missing. Mrs. Puckett then reported her discovery of the jacket and schoolbook to the Cincinnati police.

The distance from Lisa's home in Ohio to the Kentucky state line at Cincinnati was 10.9 miles, and from the state line southward via Interstate 75 to the place near Stephenson-Mill Road where her body was found the next morning is 22.6 miles. Gall resided at Hillsboro, Ohio, about 45 miles the other side of the Jansen home.

At about 10:15 a. m. on April 5, 1978, a man later identified as the appellant, Gall, entered a small grocery store at the crossroads village of Gardnersville, 17 miles or so by public roads from the vicinity of Stephenson- Mill Road (which consists of a loop leading off and then back to Highway 16), and robbed the storekeeper and her customers at the point of a .357-gauge magnum stainless-steel revolver. The storekeeper, who was familiar with this type of weapon, observed from the exposed portions of the magazine that it was loaded with hollow-point cartridges. As soon as the robber left, she telephoned the local headquarters of the Kentucky State Police and reported the incident. Within a matter of minutes Gall was encountered by Detective Joe Whelan, who turned around and followed, and then by Trooper Gary Carey, who had alighted from his cruiser and was attempting to block the highway. As Carey signaled the driver to halt, Gall shot him once, got out of the Ford and shot him again, and then sped onward with Whelan emptying his gun into the rear of the fleeing car. Almost immediately other police officers took up the chase, and Gall was finally brought to bay when he attempted to make a U-turn in the town of Dry Ridge and one of the troopers rammed his cruiser into the Ford. The .357 revolver was lying on the floor of the Ford. Also on the floorboard of the Ford automobile the officer found a cigar box and $112.88, the money taken at the store in Gardnersville. Gall had the further sum of $42.84 on his person. Subsequent laboratory tests established that a bullet removed from Trooper Carey's person had been fired from the revolver found in Gall's automobile.

Shortly following his...

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