Washington v. Watkins
| Decision Date | 03 December 1981 |
| Docket Number | No. 80-3072,80-3072 |
| Citation | 662 F.2d 1116 |
| Parties | John Lewis WASHINGTON, Petitioner-Appellant, v. John C. WATKINS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees. . Unit A * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Mississippi; William C. Keady, Chief Judge.
Robert J. Brantley, Jr., Patrick Dale O'Rourke, Jackson, Miss., for petitioner-appellant.
Grady F. Tollison, Jr., Oxford, Miss., Anthony G. Amsterdam, Stanford Univ. Law School, Stanford, Cal., James S. Liebman, Joel Berger, John C. Boger, Judith Reed, Deborah Fins, New York City, Billy Gore, Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion September 14, 1981, 5 Cir. 1981, 655 F.2d 1346).
Before WISDOM, COLEMAN and RANDALL, Circuit Judges.
The Petition for Rehearing is DENIED and the judges in regular active service of this Administrative Unit having been polled at the request of one of said judges and a majority of said judges not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial Council Resolution of January 14, 1981), the Suggestion for Rehearing En Banc is also DENIED.
The Suggestion for Rehearing En Banc filed by the Respondents-Appellees described the jury instruction given in this case (discussed in Part III of the court's opinion, Washington v. Watkins, 655 F.2d 1346, 1367-77 (5th Cir. 1981)), as "patterned after Mississippi Model Jury Instruction 114.07" (Respondents-Appellees Suggestion for Rehearing En Banc at i) and represented that the instruction given "is presently in use throughout the State of Mississippi." Id. at ii, n. 1. In view of the fact that the court's opinion in this case suggested that, for several reasons specified in the opinion, 655 F.2d at 1377, the practical impact of its holding should be relatively narrow, the State's representation in the Suggestion for Rehearing En Banc caused us to obtain a copy of Mississippi Model Jury Instruction No. 114.07, as in effect during at least a part of 1977 (the year of Washington's trial). The relevant portion follows:
If an element of aggravation is found to exist, then you must consider whether there are mitigating circumstances which outweigh the aggravating circumstance(s). Consider the following element(s) of mitigation in determining whether the death penalty should not be imposed:
(1) That the defendant has no significant history of prior criminal activity.
(2) That the defendant was under the influence of extreme mental or emotional disturbance when the offense was committed.
(3) That the victim participated in the defendant's conduct or consented to the act.
(4) That the defendant was an accomplice to the capital murder committed by another person and the defendant's participation was relatively minor.
(5) That the defendant was under extreme duress or under the substantial domination of another person.
(6) That the capacity of the defendant to appreciate the criminality of this conduct or to conform his conduct to the requirements of law was...
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...cert. denied, 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 460; Washington v. Watkins, 655 F.2d 1346, 1353 (5th Cir.1981), reh'g denied, 662 F.2d 1116, cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474; See 9A Wright & Miller, FEDERAL PRACTICE & PROCEDURE § 2589 at 608 (2d Ed.1995) (ci......
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...(335) at 344-45 (100 S.Ct. 1708 at 1716, 64 L.Ed.2d 333). Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.), rehearing denied, 662 F.2d 1116 (1981). As the district court noted, our cases have recognized that counsel's preparation for trial, as well as his courtroom performance, must be......
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