McCorquodale v. Balkcom, Civ. A. No. C 79-95.

• Decision Date: 21 October 1981
• Docket Number: Civ. A. No. C 79-95.
• Citation: 525 F. Supp. 431
• Parties: Timothy West McCORQUODALE v. Charles BALKCOM, Warden, Georgia State Prison.
• Court: U.S. District Court — Northern District of Georgia

525 F. Supp. 431

Timothy West McCORQUODALE v. Charles BALKCOM, Warden, Georgia State Prison.

Civ. A. No. C 79-95.

United States District Court, N. D. Georgia, Atlanta Division.

October 21, 1981.

John R. Myer, Atlanta, Ga., Jack Greenberg, James M. Nabrit, III, Joel Berger, John Charles Boger, New York City, Anthony G. Amsterdam, Stanford, Cal., for plaintiff.

Lewis R. Slaton, Fulton County Dist. Atty., H. Allen Moye, Asst. Fulton County Dist. Atty., John W. Dunsmore, Jr., Asst. Atty. Gen., State of Ga., Atlanta, Ga., for defendant.

ORDER

ORINDA D. EVANS, District Judge.

This case is before the Court on Petitioner's motion for a further evidentiary hearing and for oral argument before this Court. Petitioner's request for oral argument has previously been granted in part, the Court having heard oral argument on two of Petitioner's contentions pursuant to his request. Otherwise, the motion for further oral argument is hereby DENIED.

In his motion for a further evidentiary hearing, Petitioner asks this Court to hold a hearing in order to consider certain testimony ruled inadmissible or non-discoverable by the Magistrate.

Petitioner's specific complaints are these. First, the Magistrate declined to compel Dennis A. York, Assistant to the Supreme Court of Georgia, to give deposition testimony relative to certain aspects of the Court's sentence review procedures, which matters were deemed by the Magistrate to be subject to a judicial privilege. See Order of April 2, 1979, referencing the Magistrate's Order of January 15, 1979 and Judge Edenfield's Order of February 24, 1979, in a then-companion case, House v. Balkcom, C78-1471A.

Second, Petitioner complains of the Magistrate's decision not to require the Chief Justice of the Georgia Supreme Court, H. E. Nichols, to appear personally or by deposition to corroborate, deny or explain, comments attributed to him by the press on the subject of the death penalty, Petitioner's contention being that the then-Chief Justice (who participated in review of Petitioner's case) was so biased as to deprive Petitioner of a fair sentence review. Although the Magistrate denied Petitioner's motion to compel the attendance of the Chief Justice, the Magistrate's Report reflects that he assumed the Chief Justice had been correctly quoted in the press.

Third, Petitioner complains of the Magistrate's refusal to admit certain statistical data into evidence; namely, Petitioner's Exhibits Nos. 9, 12-21 and 31, and related expert testimony. Petitioner made an extensive offer of proof on this matter at the hearing before the Magistrate, who thereafter by Order entered August 8, 1979, ruled the evidence inadmissible.

Having reviewed the transcript of the hearing held before the Magistrate, the evidence tendered at the hearing, the Magistrate's Report and Recommendation (which is the subject of a separate Order of even date herewith), the record in the instant case, the deposition of Dennis A. York taken November 13, 1978 in House v. Balkcom, C78-1471A, United States District Court for the Northern District of Georgia, and other relevant portions of the House record,¹ the Court is of the opinion that no further evidentiary hearing is necessary or appropriate because the Court finds the rulings of the Magistrate which were challenged by Petitioner to have been either correct or if incorrect, harmless error as shown in subsequent portions of this Order.

In order to evaluate Petitioner's claims concerning Mr. York's sought-for testimony, it is necessary to review his deposition taken in the House case. In that deposition, he explained the functions he performs for the Georgia Supreme Court. Specifically, he reviews transcripts of capital felony cases which are appealed to the Georgia Supreme Court. This includes all death cases, as to which review is automatic under Georgia law, and all life sentence cases which are, at the election of the defendant, appealed. Based on his review of the trial transcript, Mr. York prepares for the Supreme Court a "card summary" on each case. These cards contain a factual narrative of the crime including notation of mitigating circumstances. These card summaries are maintained in a file in Mr. York's office, which is in the building occupied by the Georgia Supreme Court. He testified in the deposition that he responds to requests from the Justices for card summaries. He also when requested provides written reports on specific subjects. He recalled one report dealing "with family type murders and one with cases in which an aggravating circumstance was found but the jury did not impose the death penalty." (November 13, 1978 deposition, p. 54). Beyond that, Mr. York basically declined to furnish information concerning how the cards are used or interpreted by him when responding to requests from the Justices or how the cards are used by the Justices themselves. Mr. York deemed his activities in this regard to be either akin to those of a law clerk or those of an attorney acting for a client. The Magistrate in his order of January 15, 1979, in the House case agreed with Mr. York as to the judicial privilege; the District Court in its order of February 24, 1979 in the same case affirmed the Magistrate.

In ruling on Petitioner's motion for leave to conduct discovery in the instant case, the Magistrate ordered that "the deposition of Dennis A. York shall be governed by the principles enunciated in this Court's order in the case of House v. Balkcom, C78-1471A, in the event that Mr. York shall assert a judicial privilege." See Magistrate's Order of April 2, 1979. Thereafter, Mr. York's deposition was taken on May 14, 1979. There was no further motion to compel with respect to Mr. York's testimony.

The Court has reviewed the January 15, 1979 order of the Magistrate in which he finds, after considerable analysis, that Mr. York was entitled to invoke a judicial privilege as to those phases of his work in which he deals directly with the Georgia Supreme Court Justices. Also, the Court has reviewed Petitioner's contentions regarding alleged inadequacy of the sentence review process in Georgia, and the Magistrate's Report and Recommendation regarding said contentions, see pp. 38-44, Magistrate's Report and Recommendation of January 9, 1980. The Court finds that it is unnecessary to rule on whether or not the Magistrate correctly analyzed York's claim of judicial and/or attorney-client privilege, because the Court finds that the sought-for testimony would not in any way have furthered Petitioner's claim of inadequate sentence review procedures. Petitioner wishes to show the Court that the Georgia Supreme Court has not consistently or even handedly compared factually similar cases when conducting the mandated sentence review. He has offered an expert statistical analysis which he contends reveals lack of similarity between cases asserted by the Supreme Court of Georgia to be similar in its comparative sentence review. Petitioner urges that further testimony from Mr. York might reveal an absence of systematic procedures which would explain the claimed lack of similarity, and buttress...