Fair v. Balkcom, 21184
| Decision Date | 06 April 1961 |
| Docket Number | No. 21184,21184 |
| Parties | James FAIR, Jr. v. R. P. BALKCOM, Warden. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Petitioner, without a reasonable time to prepare his case, and without legal representation when entitled to it, was denied due process and benefit of counsel guaranteed to him under the Federal and State Constitutions (Code §§ 1-815, 2-103 and 2-105).
D. L. Hollowell, Atlanta, C. B. King, Albany, for plaintiff in error.
B. Daniel Dubberly, Jr., Deputy Asst. Atty. Gen., Eugene Cook, Atty. Gen., Earl L. Hickman, Asst. Atty. Gen., for defendant in error.
James Fair, Jr., assigned as error the dismissal of his habeas corpus petition and his consequent remand to the respondent, R. P. Balkcom, Warden of Reidsville State Prison. The proceedings, filed in the City Court of Reidsville, complained that petitioner was denied his constitutional rights to the benefit of counsel and reasonable time to prepare his case when, after entering a plea of guilty, he was sentenced by the Judge of the Superior Court of Early County, Georgia, to be electrocuted for the murder of an eight year old Negro girl in Blakely, Georgia.
The record of the proceedings now under review consists of 219 pages, more than half of which is the petition for habeas corpus, with its exhibits, purporting to show the events leading up to the filing of such petition. Besides relating Fair's arrest, arraignment, plea of guilty, and sentencing, the petition gives his version of what transpired with reference to his previous unsuccessful efforts to obtain the following: (1) a new trial; (2) withdrawal of his plea of guilty; (3) certification of three bills of exceptions by the Judge of Early Superior Court; (4) mandamus from this court to compel such certification; and (5) a writ of habeas corpus from the United States District Court for the Middle District of Georgia.
The evidence adduced upon the habeas corpus hearing covers a wide area and shows the following sequence of events.
About one o'clock in the morning of Sunday, May 15, Fair, a Negro who had some month and a half before come from New Jersey to live in Early County, was arrested and confined in the city jail by the Blakely Chief of Police. Other Negroes had summoned the chief because they had last seen the child in Fair's company. Later in the day Fair was taken to the sheriff's quarters in the county jail for questioning. At approximately sundown, Fair made a full confession, first to the sheriff and later, at the sheriff's direction, to others called in by the sheriff.
Upon the habeas corpus hearing, Fair testified that he did not commit the crime, but after being cursed, threatened, and frightened by the sheriff and told by him that he had once been able to get a Negro a life sentence rather than the death sentence in a murder case because he pleaded guilty, he decided to confess. The sheriff died before the habeas corpus hearing. Fair also testified that previous to his incarceration in Blakely, he had never been arrested, never been in trouble, and never been in court.
In the late afternoon or early evening of the same day, Sunday, May 15, the sheriff complied with the request Fair had made before his initial confession, that his mother, who lived in Bayonne, New Jersey, be contacted. Both the sheriff and Fair talked to her, the sheriff listening on an extension in view of Fair while Fair talked. The testimony with reference to what was said during these telephone conversations is at variance. Fair stated that he told his mother he was guilty. His mother denied that he did so. She also stated that she told the sheriff that she would immediately go to Blakely and arrange for legal counsel for her son.
On the next day, Monday, May 16, the grand jury of that county met, having been convened sometime in March for this date. It indicted Fair for both rape and murder of the child.
On Tuesday, May 17, at about eight o'clock in the morning, Fair's mother telephoned the solicitor-general of that circuit. Their versions differ as to a part of what was said. He testified that he told her that, if Fair did not plead guilty, no trial would be had before the following Monday, May 23. She testified that he put no condition upon it, but stated that nothing would be done until either Friday, May 20 or Monday, May 23. Both, however agreed that she did state that she was leaving immediately for Blakely.
At about four o'clock in the afternoon of the same day, Tuesday, May 17, upon adjournment of the grand jury, the judge sent for Fair for the purpose of arraignment, according to the solicitor-general's account of events. His testimony contains the only orderly narration of the arraignment and sentencing to be found in the record so it will be used here. He stated that, in the presence of the judge, the sheriff, the clerk, the court reporter, two deputy sheriffs, and another one or so, he read the indictment to Fair, told him what he was charged with and then asked if he had a lawyer. Upon Fair's reply that he did not, the solicitor-general told him that the court would appoint one and that it would not cost Fair anything. Fair answered that he 'did not want a lawyer.' Then the judge informed Fair that he was entitled to counsel, and that he would appoint counsel for him if he so desired. Fair stated that he did not wish counsel, but wanted to plead guilty. Upon the judge's statement that if he pleaded guilty, he could be given the death sentence, Fair asked whether there would be a trial if he pleaded guilty and was told by the judge that there would not. Fair then approached the judge, told him that he wanted to enter a plea of guilty, that he was guilty, and went into detail as to how he had raped the child and killed her with pipe. In response to the questions of the solicitor-general, Fair stated that he had already confessed the crime and that no one had threatened him or promised him any reward. The judge again asked Fair if he wanted to enter a plea of guilty, and Fair answered that he did. The solicitor-general testified that Fair then signed his name upon the back of the murder indictment so as to enter the plea of guilty.
Fair testified that he was removed from his cell at the county jail and was told by the sheriff only that he had to go before the judge, that the judge wanted to see him. He testified that he did not recall being asked whether he wanted any counsel other than court appointed, and as to that he 'told him, no sir, I don't want no appointed lawyer,' giving as his reason that he had no confidence in them and repeating that he did not want 'no court appointed lawer.' Fair also stated that he did not recall the judge telling him that he could be given the death sentence if he pleaded guilty, and that he did not recall telling the judge and others present that he was guilty and describing the crime. He did recall signing a paper, but stated that he didn't know what it was, that he didn't know anything about law or a court of law.
The record shows that, at no time before being sentenced, had Fair employed legal counsel nor had any been appointed for him. The record does not show that the judge had any date other than Fair's statements before him in pronouncing the death sentence. And in so far as this record shows, the judge had not been informed that Fair's mother had told both the solicitor-general and the sheriff that she was proceeding immediately to Blakely and had told the latter that she was coming to obtain legal counsel for her son.
A few minutes before five o'clock on the afternoon of Tuesday, May 17, Fair's mother arrived in Blakely, only to find that the death sentence had been imposed on her son shortly before.
The foregoing events, beginning with the crime itself on Saturday evening (according to Fair's confession which is the only evidence in the record as to the time), then his arrest and confinement and confession on Sunday, his indictment on Monday, and terminating on Tuesday when he was, without counsel, arraigned and sentenced to be executed, took place within less than 72 hours. Actually the time from Fair's arrest to the sentencing was only about 63 hours.
An explanation of the timing of those events was given by the solicitor-general. He testified that it was the custom in that county upon the adjournment of the grand jury for all felony prisoners confined in jail to be immediately brought before the judge for arraignment so as to ascertain whether they had or needed counsel. Fair was the only felony prisoner in jail at that time. As to the time element in these proceedings, the solicitor-general testified that 'We were not in a race with [his] mother to take a plea of guilty before she arrived in Blakely * * * it just happened that he did it on Saturday night and confessed on Sunday and the grand jury was actually in fact in session on Monday and they indicted him.'
We do not question that both the solicitor-general and the superior court judge believed that this petitioner was being accorded his constitutional rights.
Our duty is to determine whether those rights were actually accorded to petitioner.
We are called upon to decide whether he was afforded due process and equal protection under the 14th Amendment of the United States Constitution (Georgia Code § 1-815), and due process and benefit of counsel under the Georgia Constitution art. 1, § 1, pars. 3, 5 (Code §§ 2-103 and 2-105). For our purposes these guaranties are a defendant's rights to benefit of counsel and reasonable time to prepare his case. Under the facts of this record these two rights are so interwoven that they cannot be separately treated. In applying these constitutional guaranties to the record here, where there is conflict, we accept the testimony of the respondent's witnesses instead of that of petitioner's, since the habeas corpus judge, as trior, found against the petitioner. Grammer v....
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