Alderman v. Austin, CV480-178.

• Citation: 498 F. Supp. 1134
• Decision Date: 09 September 1980
• Docket Number: CV480-178.
• Parties: Jack E. ALDERMAN, Petitioner, v. Sam AUSTIN, Warden, Georgia State Prison, Respondent.
• Court: U.S. District Court — Southern District of Georgia

498 F. Supp. 1134

Jack E. ALDERMAN, Petitioner, v. Sam AUSTIN, Warden, Georgia State Prison, Respondent.

CV480-178.

United States District Court, S. D. Georgia, Savannah Division.

September 9, 1980.

Bruce H. Morris, Devine & Morris, Atlanta, Ga., American Civil Liberties Union, Atlanta, Ga., for petitioner.

Mary Beth Westmoreland, Atlanta, Ga., for respondent.

ORDER

B. AVANT EDENFIELD, District Judge.

Before the Court is a Petition for Writ of Habeas Corpus for review of the Judgment of the Superior Court of Chatham County, Georgia, and the conviction and sentence of death imposed upon Petitioner. Numerous arguments have been raised by Petitioner in his original complaint and by more recent amendment, but the Court will review only two here: (1) the problem created by the trial court's exclusion of three possible jurors based on their unwillingness to sign a verdict of death if elected foreman; and (2) certain comments made by a prosecution witness in reference to Petitioner's statement that he wished to remain silent and consult with an attorney before answering any further police inquiries. For reasons discussed below, it is the holding of the Court that these arguments be upheld. Therefore, Petitioner's conviction and sentence of death must be reversed and the case remanded for a new trial on all issues.

Background

Petitioner was indicted by the Superior Court of Chatham County for the murder of his wife, Barbara J. Alderman. After a jury trial in 1975, Petitioner was found guilty and sentenced to death. The issues here considered related primarily to violation of Mr. Alderman's constitutional rights in the conduct of this trial and not to the sufficiency of the evidence. The Court will therefore delay discussion of the details of the crime until it becomes necessary for application of these principles. I note here only that there was evidence to support the jury's finding of guilt. There was also basis for its further finding that death was an appropriate penalty based on statutory aggravating circumstances in that the murder was "committed for the purpose of receiving money or any other thing of monetary value" and that the offense was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga.Code Ann. § 27-2534.1(b)(4) and (7).

On direct appeal, the Georgia Supreme Court affirmed Petitioner's conviction and sentence. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978), cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1979). Petition for Writ of Certiorari was denied by the United States Supreme Court on November 27, 1978, and a petition for rehearing was denied on January 15, 1979.

Petitioner filed a Petition for Writ of Habeas Corpus in the Superior Court of Chatham County, which was denied on June 4, 1979. On September 6, 1979, the Supreme Court of Georgia denied Petitioner's Application for a Certificate of Probable Cause to Appeal the denial of the Writ of Habeas Corpus. Thereafter, Petition for a Writ of Certiorari was sought in the United States Supreme Court. This petition was denied on February 19, 1980, and a rehearing was denied on March 19, 1980.

Petitioner brought the present habeas corpus action in this Court on June 27, 1980. Application for a stay of execution was granted by the Court, also on June 27, 1980, without objection from the State, so that issues raised by Petitioner could be considered. By way of written memoranda and in a hearing held July 17, 1980, various points have been raised. Of the fifteen grounds now before the Court, I will consider here only the two mentioned above: (1) the exclusion of possible jurors based upon their attitudes toward capital punishment, and (2) comments made at trial on Mr. Alderman's statement that he wished to remain silent and consult an attorney. Since I find these issues determinative, it will be unnecessary to review other arguments.

The Witherspoon Problem

Petitioner first alleges that the jury which convicted him failed to include a true cross-section of the community because prospective jurors were improperly excluded based on only their general scruples against capital punishment. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Three veniremen are involved in this allegation—Mrs. Maxine M. Cleveland, Mr. Cleveland Barnes, and Mr. William A. Kearney, Jr. All three indicated that they would not be able to write out and sign a verdict of death if elected foreman. They were then excluded from the jury for cause.

Respondent claims that each of these veniremen expressed an unconditional reservation to the imposition of the death penalty such as would support exclusion. However, a careful examination of their statements does not support this interpretation. Mrs. Cleveland initially noted that she could vote to inflict the death penalty. VDT 105-106. The prosecution then asked Mrs. Cleveland if she were selected as foreman, "Could you, as foreman of the jury, following the instructions given you by Judge Cheatham, write out the verdict on the indictment and sign your name to it as foreman?" VDT 106. Mrs. Cleveland responded, "I don't know. I don't think I could do that." She went on to say, "I don't know. I just wouldn't want to convict anybody. I'd feel guilty." VDT 106. She concluded that "this would be on my conscience. I just couldn't write it out." VDT 107. The Court then excluded Mrs. Cleveland for cause.

Mr. Barnes stated that a person found guilty should be punished. VDT 125. The prosecution then asked Mr. Barnes if he were elected foreman "could you write out on the verdict, following the Court's instructions, `We, the jury recommend that the defendant be put to death,' and sign your name to it...." VDT 126. Mr. Barnes responded, "I couldn't do that." He continued, "I mean, I wouldn't want to just say—you know, put him to death, me." The Court explained that "It wouldn't be you. You'd be signing it as foreman. You wouldn't be signing it as yourself. You'd be signing it as foreman. Could you do that if you were elected foreman?" Mr. Barnes responded, "I don't think I could. No, sir." VDT 127. The Court then excluded Mr. Barnes for cause.

Mr. Kearney stated that he could vote for the death penalty if he believed it was an intentional killing. When asked if he could write out a verdict and sign it if elected foreman, he responded, "I don't believe I could." He further stated, "Well, I have no legal reason, but although I'd vote for the death penalty, I don't believe I could sign a man's life away ... someone has got to do it. I understand that. But I just don't believe that I could sign it." VDT 138. The Court then excluded Mr. Kearney for cause.

Obviously, all three prospective jurors displayed complex, perhaps even contradictory, attitudes toward the death penalty in these colloquies. Such attitudes are perhaps neither unusual nor unexpected when one faces the difficult problem of putting abstract ideas on the rightness of capital punishment into actual practice with respect to a real defendant. However, in Witherspoon the Supreme Court fashioned an unambiguous rule for considering these often quite ambiguous views. The Court held that general inquiry into personal, conscientious scruples against capital punishment could not form a permissible basis for exclusion from a jury deliberating the fate of another human being.

It cannot be assumed that a juror who describes himself as having `conscientious or religious scruples' against the infliction of the death penalty or against its infliction `in a proper case' thereby affirms that he could never vote in favor of it or that he would not consider doing so in a case before him ... Unless 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.

391 U.S., at 515 n. 9, 88 S.Ct., at 1773 n. 9 (citations omitted).

The Supreme Court thus held that exclusion of prospective jurors was proper only when it was "unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence ... or (2) that their attitudes 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 1777 n.21 (emphasis in the original). Succeeding opinions have not retreated from this holding. In Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1968), the Court remanded a case in which veniremen were dismissed based on a statute excluding persons with "a fixed opinion against capital punishment." The Court there relied explicitly on the footnote material quoted above. In Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), the court remanded for consideration of a Witherspoon problem not previously raised but apparently discernable in the record. See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1977).

Moreover, the Court has not been reluctant to apply Witherspoon in many situations where elements supporting the initial logic of the decision are apparently not present. Of particular interest here is the case of Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). In a per curiam opinion the Court rejected the attempt of the Georgia Supreme Court to distinguish Witherspoon on grounds that only one prospective juror had been improperly rejected and thus, there had been no "systematic and intentional exclusion" as Witherspoon had contemplated. Again quoting Witherspoon in part, the Court held that "unless a venireman is `irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,' he cannot be excluded; if a venireman is improperly...