Isaacs v. Kemp
| Decision Date | 09 December 1985 |
| Docket Number | 85-8202 and 85-8277,Nos. 82-8017,s. 82-8017 |
| Parties | 19 Fed. R. Evid. Serv. 1522 Carl J. ISAACS and George Elder Dungee, Petitioners-Appellants, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. George Elder DUNGEE, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. Carl J. ISAACS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas J. Killeen, Athens, Ga., for C. Isaacs.
Stephen B. Bright, Carla J. Friend, Atlanta, Ga., W. Gary Kohlman, Robinson & Kohlman, Washington, D.C., for G. Dungee.
Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeals from the United States District Court for the Middle District of Georgia.
Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER*, District Judge.
Petitioners Carl J. Isaacs and George Elder Dungee appeal from the federal district court's denial of their habeas corpus petitions.1 On May 14, 1973, five members of the Alday family were shot to death in their mobile home in Donalsonville, Georgia. A sixth person, Mary Alday, was taken from the mobile home, raped, and then shot to death.2 On September 4, 1973, Seminole County's grand jury indicted Carl Isaacs, Dungee, Billy Isaacs, and Wayne Carl Coleman on six counts of murder. Some three months later, Billy Isaacs, Carl's sixteen-year old brother, pleaded guilty to armed robbery and burglary. He was sentenced to a forty-year prison term. Shortly thereafter, the three remaining defendants were tried separately, convicted, and sentenced to death by electrocution. Several post-conviction proceedings followed.3 Petitioners have exhausted their state remedies.
In this habeas proceeding, petitioners raise five issues: (1) whether pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant appellants' motion for a change of venue deprived them of their Fourteenth Amendment due process rights; (2) whether, under the Fourteenth Amendment's due process clause, appellants received sufficient notice specifying the aggravating circumstances which the prosecutor would rely on in the sentencing phase of the bifurcated trial; (3) whether the trial court's jury instruction on intent impermissibly shifted the burden of proof from the state to the petitioners in violation of the Fourteenth Amendment's due process clause; (4) whether Georgia's death penalty is applied in a discriminatory manner, thus violating the dictates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam); and (5) whether the district court erred in refusing to allow appellants leave to amend their petition to add claims which are, in large part, already before the court in a related case.4 We have carefully reviewed the entire record available for our consideration, and we conclude that the district court's order denying habeas relief should be reversed on the basis of the first issue raised by the petitioners.5
This court has considered the presumed prejudice issue at length in the companion case of Coleman v. Kemp, 778 F.2d 1487, published simultaneously with this opinion. In Coleman, we concluded that highly prejudicial publicity had saturated and inflamed the community to the extent that there was overwhelming prejudice in Seminole County both as to petitioner Coleman's guilt and the sentence he should receive. Accordingly, we presumed prejudice under Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). While the legal standards and relevant facts are basically the same, there are some differences between Coleman's case and the cases of Isaacs and Dungee.
We must determine whether differences between the cases of Isaacs and Dungee, on the one hand, and Coleman's case on the other hand, suggest that prejudice should be presumed for Coleman, but not for Isaacs and Dungee. Upon review, we conclude that while there are differences between the cases, these differences are not of sufficient significance to warrant a different result in Isaacs' and Dungee's cases.
The primary difference between Coleman's case and that of petitioner Isaacs is that the verdict and sentence in the previous cases as well as the explicit details of Billy Isaacs' testimony were not published prior to Carl Isaacs' trial. Our review of the record convinces us, however, that the same prejudicial sentiment in Seminole County against these defendants existed prior to Carl Isaacs' trial, and thus prejudice must be presumed in the instant case as well. Although the explicit details of Billy Isaacs' testimony were not published prior to Carl Isaacs' trial, the entry of Billy Isaacs' guilty plea, the fact that Billy Isaacs would be an eyewitness to the murders, and the fact that Billy Isaacs had issued a statement describing the murders were all widely known prior to the first trial. In short, there was overwhelming sentiment that "these were the 'right' defendants" prior to Carl Isaacs' trial, and neither the press nor the community made a genuine effort to separate the individual cases. Moreover, and very significantly, the extreme prejudice on the question of sentence, as noted in our Coleman opinion, was also present in the instant cases involving Carl Isaacs and Dungee. Thus, we conclude that the differences between the instant cases and Coleman are not sufficient to warrant a different result. Prejudice must be presumed here for the same reasons that prejudice was presumed in Coleman.
Moreover, there is an additional factor in Dungee's case which provides significant support for a finding of presumed prejudice. During the supplemental evidentiary hearings held in the district court, 6 Ms. Thelma Harrington testified that before she served as a juror in Dungee's case, she spent "most of the day" attending Carl Isaacs' trial each day that Isaacs' trial went on. The colloquy reveals the following:
Q. Did you go to all three trials? You'll have to answer yes or no.
A. Yes, sir.
Q. Were you up for jury service for all three trials?
A. No. Well, I was appointed a juror, but I served on just one of the men's trials. That was the colored man.
Q. All right. Now, before that man was tried, do you recall being questioned at the jury selection process of one of the other trials?
A. No.
Q. Now, when you say you went to all three trials, you mean you went each day to the trial?
A. We had to go.
Q. I don't mean just the one now that you were the juror for. But with regard to the other two trials, did you go to those trials?
A. Yes.
Q. And you sat through the entire trial?
A. Well, now, I don't say I sat through the entire trial, no.
Q. Well, let's take the trials one at a time. The first time after New Year's--the trial started right about New Year's Day, didn't they?
A. I don't know. I don't remember that either.
Q. How much did you go to the first trial?
A. Well, I didn't write it down in minutes and hours. I don't remember exactly.
Q. Would you spend let's say most of the day there?
A. Yes.
Q. Most of the day?
A. Yes.
Q. Each day that the trial went on?
A. Yes, that courthouse was packed and guards around to protect everything, and we went.
* * *
Q. When you went to the first trial, the Isaacs trial, do you recall hearing the one defendant who turned state's evidence? Did you hear his testimony in that case?
Supp. Record on Appeal, vol. 2, at 189-94.
It is clear that Ms. Harrington, a juror in Dungee's trial, sat through the earlier trial of Carl Isaacs and heard the cornerstone of the state's case, i.e., the testimony of Billy Isaacs. We need not decide whether that fact would constitute a separate and independent basis for finding a due process violation. 7 United States v. McIver, 688 F.2d 726 (11th Cir.1982), and United States v. Stratton, 649 F.2d 1066 (5th Cir. Unit A 1981, 8 found that a similar factor constitutes an independent due process violation. In McIver and Stratton, it was held that a defendant's Sixth Amendment right to be tried by an impartial jury is violated where the defendant is tried by the very same jury that has convicted his codefendants. Both cases involved a bifurcated trial procedure in which the prosecution's case against all defendants was presented to the jury, but one defendant's defense was postponed until after the jury had deliberated with respect to the codefendants. The McIver court specifically held that such a procedure "violates the Sixth Amendment because the jury might consider, even if inadvertently, the guilt of the defendant before it has heard the defendant's case." 688 F.2d at 729. The Stratton court stated that a "clearer case of jury prejudice is difficult to imagine." 649 F.2d at 1082. After earlier finding the co-defendants guilty, the Stratton jury was "predisposed to find guilt" and "virtually bound to convict" the later defendant. Id. We note the potential analogy between McIver and Stratton, where all jurors prematurely heard the government's case against the defendant, and Dungee's case in which one juror prematurely heard the cornerstone of the state's case against Dungee. We note also the similarity between juror Harrington's premature exposure to Billy Isaacs' testimony in this case, and the premature exposure of three jurors...
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