Six members of the Alday family were killed on the afternoon of May 14, 1973, at the mobile home Jerry and Mary Alday shared outside Donalsonville, in Seminole County, Georgia. The four men who stopped there had been looking for a gas pump. Carl Isaacs had escaped from a Maryland prison earlier that month with his half-brother Wayne Coleman and a friend, George Dungee, and had picked up his younger brother Billy on the way south. According to the account the Eleventh Circuit took from the trial record, the Aldays were shot one by one as they came home: Jerry and his father Ned, who drove up together in a jeep; Jerry’s brother Jimmy, on a tractor; then their brother Chester and their uncle Aubrey, who came in a pickup truck. Mary Alday was raped in the trailer, taken to a wooded area, raped again and shot. Billy Isaacs pleaded guilty to armed robbery and burglary, took forty years and testified against the other three, and in January 1974 each of them was tried separately in Seminole County, convicted and sentenced to death.
The nine opinions here run from 1976 to 1989, and the longest of them is about the town rather than the crime. In Coleman v. Kemp, decided on December 9, 1985, a panel of the Eleventh Circuit read the coverage in The Albany Herald, the Donalsonville News, the Bainbridge Post-Searchlight and the Atlanta papers, the radio bulletins and the testimony of reporters and residents, one of whom could not remember a bigger story in fifty years in Donalsonville. The court concluded that the community had prejudged guilt and sentence, and ordered the writ granted unless Georgia retried Coleman. Isaacs and Dungee won the same day in a companion opinion, which adds that one of the women on Dungee’s jury had spent most of each day in the courtroom at Carl Isaacs’s trial the week before and had heard Billy testify. The court acknowledged “overwhelming evidence” of guilt. What it held was that no jury chosen in Seminole County in 1974 could be presumed fair.
Georgia tried them again. In 1987 the Supreme Court of Georgia reversed the denial of the three men’s motions to remove the judge assigned to their retrials. The Seminole County indictments were quashed after a change of venue, a Houston County grand jury indicted Isaacs on August 17, 1987, and in 1988 the court rejected his argument that the quashing of the earlier indictments entitled him to be discharged. He was convicted again and sentenced to death again, and on November 30, 1989, the court affirmed. That opinion describes the tape of a later interview Isaacs gave the filmmaker Fleming Fuller, played to the jury, and a television interview in which he said he would commit the crime again. Coleman and Dungee received life sentences at their retrials. Isaacs was executed by lethal injection on May 6, 2003, after almost thirty years under sentence of death. Dungee died in prison in 2006, and Billy Isaacs, paroled in 1993, died in 2009.
This is the court record of three separate prosecutions for one crime, and it is uneven. There are two opinions on Coleman’s federal case, three on the joint case Isaacs and Dungee brought, one in which the full Eleventh Circuit declined to rehear all of them, and four Georgia opinions, three of which concern Isaacs alone. The 1976 opinion is 237 words, because the Supreme Court of Georgia set out the facts in Coleman’s appeal and simply adopted them for Isaacs; Coleman’s and Dungee’s own 1976 appeals, and the Georgia opinions on their retrials, are not in this file. Nearly everything a reader learns about the killings comes from the State’s evidence as the courts summarized it, much of it the testimony of Billy Isaacs, who pleaded guilty and was the prosecution’s main witness. The opinions give his age in 1973 as sixteen, while Amnesty International and most press accounts say fifteen.
These are published opinions from the official reports and anyone may reproduce them. The Coleman opinion quotes dozens of 1973 newspaper headlines and editorials, “Corner the Mad Dog” among them. Those quotations are the court’s evidence of what Seminole County was reading, printed as the court printed them, and they are not separate clippings. We have reduced six private people to initials. T.H. is the Dungee juror who had watched the Isaacs trial, and W.L. a Donalsonville resident who testified at the federal hearing. Mrs. B.I. is the mother of Carl and Billy Isaacs, whom the papers quoted in 1973. B.A., E.A. and T.A. are members of the Alday family quoted in the press about the auction of the farm machinery and about the sentence they wanted. The six people who were killed keep their names, and so do the lawyers, judges, officials and journalists.
The text comes from the Harvard Law School Library’s digitization of the reports and was never scanned. We have closed up fifteen words the typesetter broke across lines, Dungee and Alday among them, where the same word appears whole elsewhere, and we have changed nothing else. The reporters’ own misprints stand: the Coleman opinion prints “eonclusory” for conclusory, and the 1988 opinion spells the defendant “Issacs” twice. The Coleman opinion runs to about thirty-four thousand words, most of it the court’s review of the coverage outlet by outlet, and it is printed whole.
30807.
ISAACS v. THE STATE.
Argued February 9, 1976
Decided June 22, 1976.
Hill, Jones & Farrington, Bobby L. Hill, for appellant.
Smith, Wiggins, Geer, Brimberry, Hatcher & Cook, Peter Zack Geer, Kenneth L. Hornsby, John R. Irwin, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Staff Assistant Attorney General, for appellee.
[OPINION BY Per curiam. type=majority]
Per curiam.
Appellant was convicted by a jury in the Superior Court of Seminole County on six counts of murder and received a death sentence on each count. Only one alleged trial error is urged in this appeal. It is that the "trial court erred in allowing Georgia’s unconstitutional death statute to be applied to the appellant, and... in refusing to declare (the statute) unconstitutional ...”
This case is a companion case to Coleman v. State, 237 Ga. 84, and the facts are reported in the Coleman opinion. The legal issues reviewed in Coleman have been considered in this case, including a review of the sentence. We reach the same determination of these matters that we did in Coleman. Accordingly, we find no basis for reversal of the trial court’s judgment in this case.
Judgment affirmed.
All the Justices concur, except Gunter and Hill, JJ., who dissent.
[OPINION BY Hill, Justice, type=dissent]
Hill, Justice,
dissenting.
I must dissent from the imposition of the death penalty for the reasons stated in my dissenting opinion in Coleman v. State, 237 Ga. 84.
Wayne Carl COLEMAN, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
No. 82-8310.
United States Court of Appeals, Eleventh Circuit.
June 10, 1983.
Joseph M. Nursey, Millard C. Farmer, Kenneth Rose, Atlanta, Ga., for petitioner-appellant.
Nicholas G. Dumich, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before JOHNSON and ANDERSON, Circuit Judges, and COLEMAN, Senior Circuit Judge.
Honorable James P. Coleman, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
[OPINION BY R. LANIER ANDERSON, III, Circuit Judge: type=majority]
R. LANIER ANDERSON, III, Circuit Judge:
In this capital case, petitioner Wayne Carl Coleman appeals from the federal district court’s order denying his petition for habeas corpus relief. On September 4, 1973, a Seminole County grand jury indicted Coleman, Carl J. Isaacs, George Elder Dungee, and Billy Isaacs on six counts of murder. Some three months later, Billy Isaacs entered a guilty plea to armed robbery and burglary. He was sentenced to a forty-year prison term. In January 1974, Coleman and the two remaining defendants were tried separately, convicted, and sentenced to death by electrocution.
The Supreme Court of Georgia affirmed Coleman’s convictions and sentences, and the United States Supreme Court subsequently denied Coleman’s petition for writ of certiorari. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977). Coleman filed a state habeas corpus petition in the Superior Court of Tattnall County. The superior court held hearings on July 27, 1979 and January 25, 1980. On June 13, 1980, the superior court denied Coleman’s habeas corpus petition. On October 31, 1980, the Supreme Court of Georgia denied Coleman’s application for a certificate of probable cause to appeal. The United States Supreme Court denied Coleman’s second petition for writ of certiorari. Coleman v. Balkcom, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981). At this point, Coleman filed for habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied the petition. Coleman v. Zant, No. 81-42-THOM (M.D.Ga. Mar. 11, 1982). In answer to Coleman’s habeas corpus petition, respondent conceded that Coleman had exhausted available state remedies for the issues raised in his petition. Record at 49.
Among the several issues raised on this appeal, petitioner contends that the federal district court erred in denying his request for discovery and an evidentiary hearing on the question of whether pretrial publicity and the community’s atmosphere were so prejudicial and inflammatory that the trial court’s refusal to grant petitioner’s motion for a change of venue deprived him of his constitutional rights. In his petition for habeas corpus, petitioner requested the district court to conduct an evidentiary hearing so that petitioner could prove the facts alleged in the petition. Record at 41. The district court decided that an evidentiary hearing was unnecessary. Record at 239. Petitioner also filed a motion for discovery. Record at 60. In this motion, petitioner indicated that he would use depositions obtained in discovery as direct evidence and as evidence of the need for an evidentiary hearing. The district court did not directly respond to this motion. In its opinion denying habeas relief, the district court said that petitioner had had full and adequate state court hearings relating to the petition’s allegations. Record at 239.
We have reviewed the record and it is clear that petitioner is entitled to an evidentiary hearing on the change of venue issue. We therefore remand to the district court for an evidentiary hearing. In the interests of judicial economy and the expeditious handling of this case, we will retain jurisdiction. The district court is instructed to certify its findings and the record of its proceedings on remand to us within 60 days of the issuance of this opinion. See Spivey v. Zant, 661 F.2d 464, 478 (5th Cir.1981) (Unit B), cert. denied,-U.S.-, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Harris v. Oliver, 645 F.2d 327, 331 (5th Cir.1981) (Unit B), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981).
I. CHANGE OF VENUE
The Fourteenth Amendment’s due process clause safeguards a defendant’s Sixth Amendment right to be tried by “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). When prejudicial pretrial publicity or an inflamed community atmosphere preclude seating an impartial jury, due process requires the trial court to grant a defendant’s motion for a change of venue, Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963), or a continuance, Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522-23, 16 L.Ed.2d 600 (1966). Ultimately, the question is whether a defendant’s “trial was not fundamentally fair.” Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Two standards guide analysis of this question. They are the “actual prejudice” standard and the “presumed prejudice” standard.
To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. at 727, 81 S.Ct. at 1645. Second, these jurors, it must be determined, could not have laid aside these performed opinions and “render[ed] a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643.
Prejudice is presumed from pretrial publicity when (1) pretrial publicity is sufficiently prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1419-20; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). As the Fifth Circuit has described the test, “where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, ‘[jury] prejudice is presumed and there is no further duty to establish bias.’ ” Mayola v. Alabama, 623 F.2d at 997 (quoting in part from United States v. Capo, 595 F.2d 1086, 1090 (1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980)).
Petitioner has the burden to show “essential unfairness,” Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962) (quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956)), under either standard. The petitioner must “show that setting of the trial was inherently prejudicial or that the jury selection process of which he complains permits an inference of actual prejudice.” Murphy v. Florida, 421 U.S. at 803, 95 S.Ct. at 2038. Given petitioner’s allegations of “grave constitutional errors,” Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963), regarding the trial court’s denial of the motion to change venue, and given the fact that petitioner shoulders the burden to demonstrate these allegations, it cannot be doubted that petitioner is entitled to a full and fair opportunity to develop the facts material to this constitutional claim. We must determine whether or not the petitioner has had that opportunity and whether petitioner has made “an appropriate showing,” Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969), for a federal evidentiary hearing.
II. THE NEED FOR AN EVIDENTIA-RY HEARING
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), prescribes the standards governing the question whether the federal district court must hold an evidentiary hearing in determining the merits of a habeas corpus petition of a person in state custody. Townsend delineated six particularized circumstances which warrant an evidentiary hearing. The fifth circumstance occurs when “the material facts were not adequately developed at the state court hearing.” 372 U.S. at 313, 83 S.Ct. at 757. To require the district court to hold an evidentiary hearing based on this fifth circumstance, petitioner must make a showing of two elements:
[F]irst, that a fact pertaining to his federal constitutional claim was not adequately developed at the state court hearing and that the fact was “material” (in the language of section (d)(3)) or “crucial to a fair, rounded development of the material facts” (in the language of Townsend); second, that failure to develop that material fact at the state proceeding was not attributable to petitioner’s inexcusable neglect or deliberate bypass.
Thomas v. Zant, 697 F.2d 977, 986 (11th Cir.1983) (footnote omitted); see Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759.
Petitioner has made the requisite showing of the first element of the Townsend standard. There are material facts which have not been adequately developed in the state court proceedings. Facts, or issues of fact, “refer to what are termed basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators ....’” Townsend v. Sain, 372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6 (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.)); see Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.1983). The primary facts regarding petitioner’s presumed prejudice claim concern the nature and scope of pretrial publicity and its effect on the community where petitioner was tried. As the record now stands, it is impossible to determine what kind of coverage emanated from local television and radio programs to which Seminole County residents were exposed. Because the record does not reveal the content of and audience for these radio and television programs, it is impossible to resolve the question whether prejudicial pretrial publicity saturated the community.
Despite the absence of any factual development on television/radio news accounts, respondent argues that the facts relevant to the change of venue issue have been adequately developed. In support of this argument, respondent points to the pretrial hearings on the motion for a change of venue, the state habeas corpus hearings, and the voir dire transcript.
We have examined the transcripts of the state proceedings. Neither the pretrial hearings nor the state habeas hearings developed a well-rounded description of the nature of television/radio news accounts (whether prejudicial or not) and the audience for these programs in Seminole County. The pretrial hearings on the motion for a change of venue do not contain any evidence of the television and radio news programs about the case. The state habeas hearings contain two statements on this issue. The state editor of the Albany Herald testified that “the electronic media played. .. [the case] very high.” Record, Exhibit No. 10, vol. I, at 164 [hereinafter cited as State Habeas Hearings]. Petitioner’s trial counsel also testified that there was extensive radio and television coverage. Id. at 94. With these two conclusory statements standing alone, the state of this record does not provide an adequate basis to review petitioner’s presumed prejudice claim, especially in light of the special concern about the impact of television coverage evidenced by the Supreme Court in Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963).
This leaves respondent’s contention that the voir dire transcript adequately developed the facts material to petitioner’s presumed prejudice claim. In the context of petitioner’s presumed prejudice claim, respondent’s argument places too much weight on the voir dire transcript. While the voir dire is useful as evidence to determine whether prejudice should be presumed, see Murphy v. Florida, 421 U.S. 794, 799-803, 95 S.Ct. 2031, 2035-2037, 44 L.Ed.2d 589 (1975); Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976), the trial voir dire in this case is not conclusive evidence of the absence of prejudice. In Rideau v. Louisiana, the Court noted that three jurors who decided the case (the defendant was convicted and sentenced to death) had seen the televised confession, 373 U.S. at 725, 83 S.Ct. at 1418-19, but the Court was willing to presume prejudice “without pausing to examine a particularized transcript of the voir dire examination of the members of the jury.” 373 U.S. at 727, 83 S.Ct. at 1419-20. It would be exceedingly difficult for us to consider Rideau’s application to the instant case by relying on the voir dire transcript in the absence of a well-rounded description of the local television and radio coverage.
Petitioner’s motion for discovery in the district court illustrates some sources of facts relevant to this constitutional claim of presumed prejudice. Petitioner sought transcripts of television and radio broadcasts which referred to the case. Petitioner sought to depose the news directors of television stations, radio stations, and newspapers in and around Seminole County. Petitioner also sought to depose other persons whom he claimed had knowledge of the prejudice against petitioner existent in Seminole County during his trial. At the most basic level, the facts that could be derived from these sources are unquestionably material to petitioner’s claim on the change of venue issue. These facts would be crucial in determining the degree to which the publicity was prejudicial and the saturation thereof. The content of and audience for television/radio media’s coverage are indeed “indispensable to a fair, rounded, development of the material facts.” Townsend v. Sain, 372 U.S. at 322, 83 S.Ct. at 762. Petitioner has made the requisite showing of the first element of the Townsend standard.
Having decided that there are material facts which have not been adequately developed heretofore, we must now determine whether petitioner has demonstrated that the failure to develop these facts was not attributable to petitioner’s inexcusable neglect or deliberate bypass. The standard of inexcusable neglect set down in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), was applied in Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759, and this standard applies in evaluating the need for a federal evidentiary hearing. Thomas v. Zant, 697 F.2d 977, 981-89 (11th Cir.1983); Guice v. Fortenberry, 661 F.2d 496, 506-07 & 507 n. 25.
We conclude that petitioner has also made a sufficient showing on the inexcusable neglect-deliberate bypass element. Despite affirmative efforts, petitioner was unable, through no fault of his own, to bring live witnesses to the state habeas hearing. At the time of that hearing, Ga. Code Ann. § 38-801(e) limited the state habeas court’s subpoena power by providing that a subpoena for attendance at a hearing or trial could be served only within 150 miles of the hearing or trial situs. The habeas judge rejected petitioner’s constitutional attack on that statute. Record on Appeal, at 251-53. Since material witnesses resided more than 150 miles from the location of the state habeas hearing, and since many of these witnesses were hostile and unwilling to testify voluntarily, State Habeas Hearings, vol. I, at 18; id., vol. II, at 22-23, it is clear that petitioner was unable to bring live witnesses to the state habeas hearing. Petitioner was also effectively precluded from obtaining the testimony of such witnesses by oral deposition, because petitioner was indigent and the state habeas court declined to provide funds which would have been necessary to pay a court reporter or stenographer to transcribe such depositions. State Habeas Hearings, vol. I, at 29 & 34-35; id., vol. II, at 22. Although petitioner apparently could have compelled witnesses to answer written interrogatories or to file sworn affidavits, respondent has not argued either in brief or at oral argument that petitioner’s failure to pursue such alternatives, or that any other acts or omissions, constituted inexcusable neglect or deliberate bypass. Moreover, it is uncertain at best whether such methods would have been effective to elicit from hostile witnesses the subtle and complex facts relative to the degree of prejudice in the community at the time of the trial. Under the particular circumstances of this case, the failure to adduce the missing material facts “cannot realistically be regarded as ... [petitioner’s] inexcusable default.” Townsend v. Sain, 372 U.S. at 322, 83 S.Ct. at 762.
Having satisfied both elements of the Townsend standard, petitioner is entitled to an evidentiary hearing on the change of venue issue.
The most serious issue raised by petitioner is the change of venue issue above discussed. However, petitioner also requested the district court to conduct an evidentiary hearing on two other issues, namely, whether petitioner was denied effective assistance of counsel and whether the special prosecutor’s participation in the trial deprived petitioner of his constitutional rights. Although petitioner’s entitlement to an evidentiary hearing on these two issues is not as clear as it is with respect to the change of venue issue, the showing is sufficient and we direct that the parties be permitted, if they desire, to present evidence at the evidentiary hearing on these two issues also. This panel will retain jurisdiction of this case, and upon certification to us of the findings and record on remand, will decide all the issues in this case.
For the reasons stated, we retain jurisdiction and remand for an evidentiary hearing. The district court shall certify its findings and the record of its proceedings on remand to us within 60 days of the issuance of this opinion.
REMANDED WITH INSTRUCTIONS.
Additional facts are noted in Coleman v. State, 237 Ga. 84, 226 S.E.2d 911, 913-14 (1976), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977).
Petitioner also requested an evidentiary hearing on two other issues, namely, whether petitioner was denied effective assistance of counsel and whether the special prosecutor’s participation in the trial deprived petitioner of his constitutional rights.
In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all of the post-September 30, 1981, decisions of Unit B of the former Fifth Circuit. Id. at 34. Cf. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209.
The habeas corpus statute, 28 U.S.C.A. § 2254(d) (West 1977), “allocates the burdens of proof once a Townsend hearing is deemed necessary.” Thomas v. Zant, 697 F.2d 977, 984 (11th Cir.1983); In re Wainwright, 678 F.2d 951, 953 (11th Cir.1982); Guice v. Fortenberry, 661 F.2d 496, 501 (5th Cir.1981) (en banc).
Townsend’s particularized holding stated: [A] federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. 372 U.S. at 313, 83 S.Ct. at 757.
This circumstance has been codified in the habeas corpus statute. There it serves to rebut the presumption that state factual findings are correct. See 28 U.S.C.A. § 2254(d)(3) (West 1977).
Our discussion of television and radio news programs and the presumed prejudice standard is illustrative only. Such evidence might relate not only to presumed prejudice, but also to actual prejudice. Our discussion should not be taken to exclude other evidence petitioner may seek to produce on remand at a hearing on the merits of the change of venue issue.
Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), is the only Supreme Court decision in which prejudice was presumed from pretrial publicity and no other outside influences. In Rideau, the defendant confessed to several crimes committed in a Louisiana parish. This confession was videotaped, broadcast three times by a local television station, and seen by 24,000, 52,000, and 29,000 people in the community. 373 U.S. at 724, 83 S.Ct. at 1418". At the time of the trial, the parish had a population of 150,000. 373 U.S. at 724, 83 S.Ct. at 1418. Reviewing defendant’s conviction, the Supreme Court held that the trial court’s denial of defendant’s motion for a change of venue violated the due process clause. The Rideau Court stated: For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau’s trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality. 373 U.S. at 726, 83 S.Ct. at 1419 (emphasis in original).
In the companion case of Isaacs v. Zant, No. 82-8017, the district court permitted expansion of the record, including numerous depositions of news media personnel. We anticipate that the district court will order that the instant record be supplemented to include the relevant Isaacs depositions. Although this petitioner was not a party to those proceedings, and is not bound by the conduct thereof, in demonstrating “good cause,” Rule 6, Rules Governing § 2254 Cases, 28 U.S.C.A. foil. § 2254 (West 1977), for further discovery or depositions of news media personnel, it is reasonable to use the Isaacs depositions as the starting point. For example, petitioner might properly be required to show “good cause” to justify any further deposition of a person previously deposed in Isaacs. On the other hand, the Isaacs depositions fall short of providing a well-rounded description of the local television and radio coverage, and petitioner is clearly entitled to attempt to supplement same. For example, the Isaacs record inexplicably failed to include the Georgia Network wire service broadcasts during the relevant time, despite the fact that the tapes thereof were discovered during the deposition of Donald C. Kennedy. Similarly, documents from the AP wire service and UPI wire service were apparently available, deposition of Donald C. Kennedy, at 19-20, but were inexplicably not made part of the record.
In Townsend, the defendant contested the admissibility of his confession, which he claimed had been illegally coerced by an injection of hyoscine. At the state court proceedings, medical experts inexplicably failed to testify as to the material facts concerning hyoscine, specifically whether it was a truth serum capable of inducing “involuntary” statements. 372 U.S. at 321-22, 83 S.Ct. at 761-62. The Supreme Court concluded that “the medical experts’ failure to testify fully cannot realistically be regarded as Townsend’s inexcusable default.” 372 U.S. at 322, 83 S.Ct. at 762. In Guice v. Fortenberry, the Court required an evidentiary hearing and decided that the failure to develop the material facts was not attributable to defendants’ inexcusable neglect. The defendants claimed that blacks were systematically excluded from service as grand jury foremen. The record from state court proceedings did not disclose the number of grand jury foremen selected during the relevant period of time, and this fact was deemed material. The en banc court decided that there was no inexcusable neglect for three reasons. First, the record did not explain the defendants’ neglect to develop the facts. Second, there was no credible allegation that the defendants left the evidence undeveloped for tactical reasons. Third, it appeared as if the defendants and their attorneys simply did not appreciate the relevance of the missing facts. 661 F.2d at 507. See Thomas v. Zant, 697 F.2d at 981-86, for a full discussion of the inexcusable neglect-deliberate bypass standard.
In 1980, the Georgia state legislature repealed the 150-mile limitation and provided for statewide service of subpoenas. See Ga.Code Ann. § 24-10-21 (West 1982).
Donalsonville, Georgia, the location of the trial, is well over 150 miles from Reidsville, Georgia, the location of the state habeas hearing.
Ga.Code Ann. §§ 38-2401, 38-2402 (1980).
In addition to the issues involving change of venue, effective assistance of counsel, and the special prosecutor’s participation, the petitioner has raised three other issues: (1) whether the Constitution required the state trial judge’s disqualification because he was the special prosecutor’s uncle; (2) whether the trial court’s jury instructions impermissibly shifted the burden of proof on intent and malice from the state to the defendant in violation of the Fourteenth Amendment’s due process clause; and (3) whether the trial court’s sentencing instructions adequately informed the jury as to its duty to consider mitigating circumstances.
Petitioner is “entitled to careful consideration and plenary processing” of his claims “including full opportunity for presentation of the relevant facts.” Harris v. Nelson, 394 U.S. 286, 298, 89 S.ct. 1082, 1090, 22 L.Ed.2d 281 (1969). In view of the “demand for speed, flexibility, and simplicity,” Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973), petitioner shall proceed promptly to expedite the hearing and submit a prompt request for discovery if desired.
Carl J. ISAACS and George Elder Dungee, Petitioners, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
No. 82-8017.
United States Court of Appeals, Eleventh Circuit.
June 21, 1983.
James C. Bonner, Jr., Thomas J. Killeen, Athens, Ga., for petitioners.
Susan W. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent.
Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER, District Judge.
Honorable Edwin F. Hunter, Jr., U.S. District Judge for the Western District of Louisiana, sitting by designation.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
Petitioners, Carl J. Isaacs and George Elder Dungee, appeal from the federal district court’s denial of their habeas corpus petitions. Isaacs, Dungee, and Wayne Carl Coleman were tried separately, convicted, and sentenced to death for their joint participation in six murders. Before the trials began, all three petitioners filed motions for a change of venue. The state trial court held hearings on their motions, consolidated into one proceeding. After the hearings, the trial court denied these motions.
The companion case of Coleman v. Zant, 708 F.2d 541 (11th Cir.1983), has been remanded for an evidentiary hearing on the question whether pretrial publicity and the community’s atmosphere were so prejudicial and inflammatory that the trial court’s refusal to grant petitioner’s motion for a change of venue deprived him of his constitutional rights. With respect to the change of venue issue, the facts in Coleman v. Zant are nearly identical to the facts in this appeal. Isaacs, Dungee, and Coleman were indicted for the same crimes, and tried seriatim in the same community in January 1974.
On June 10, 1983, we ordered respondent to show cause why this court should not take judicial notice of the proceedings before this court in Coleman v. Zant, supra, and remand this ease also for an evidentiary hearing on the change of venue issue. Having carefully considered respondent’s response to the show cause order, we order a limited remand.
Since the facts relevant to the change of venue issue are nearly identical to those in Coleman v. Zant, since the close relationship between these two cases has been recognized and the record in each case has been supplemented on several occasions with portions of the other record, and since this limited remand will cause only a brief delay, we conclude that the interests of justice and judicial economy and the expeditious handling of this case require a remand for further development of this issue at an evidentiary hearing. We retain jurisdiction and remand for this limited purpose. The district court shall certify its findings and the record of its proceedings on remand to us on or before August 9, 1983.
REMANDED WITH INSTRUCTIONS.
The district court had granted the motion for consolidation of the habeas corpus proceedings of Isaacs and Dungee. Record, vol. I, at 53.
Respondent argues that petitioners have not made the showing required by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), that “material facts were not adequately developed at the state court hearing.” 372 U.S. at 313, 83 S.Ct. at 757. However, that bridge was crossed in the district court where it was either demonstrated or agreed that further evidentiary development in federal court was necessary. The only comity consideration implicated by our decision to order a limited remand is the brief delay involved, which is amply justified in the interests of justice... Although the management of hearings below are within the discretion of the district court, we contemplate that the district court will want to consolidate the evidentiary hearing herein ordered with that portion of the Coleman v. Zant hearings dealing with the same issue.
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.
Nos. 82-8017, 85-8202 and 85-8277.
United States Court of Appeals, Eleventh Circuit.
Dec. 9, 1985.
Rehearing and Rehearing En Banc Denied Jan. 31,1986.
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.
Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER, District Judge.
Honorable Edwin F. Hunter, Jr., U.S. District Judge for the Western District of Louisiana, sitting by designation.
[OPINION BY ANDERSON, Circuit Judge: type=majority]
ANDERSON, Circuit Judge:
Petitioners Carl J. Isaacs and George Elder Dungee appeal from the federal district court’s denial of their habeas corpus petitions. 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. 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. 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. 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.
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 ease 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, T.H. 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?
THE COURT: She doesn’t understand your question. What he’s asking you is — you’ve said that you went to the courtroom and heard part or all of that first trial. Now, that was the trial of who, Isaacs?
MR. BRIGHT: Yes, Your Honor.
THE COURT: And he’s asking you whether you heard the testimony of Isaacs’ brother at that trial. Did you hear the—
THE WITNESS: The younger brother, 16-year-old?
THE COURT: Yes.
THE WITNESS: Yes, sir, I heard that.
THE COURT: That’s what he’s asking.
Supp. Record on Appeal, vol. 2, at 189-94.
It is clear that Ms. H., 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. 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), found that a similar factor constitutes an independent due process violation. In Mclver 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 co-defendants. 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 Mclver 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 Mclver 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 H.’s premature exposure to Billy Isaacs’ testimony in this case, and the premature exposure of three jurors in Rideau to the televised confession. Because we consider juror H.’s premature exposure to Billy Isaacs’ testimony as another factor in the totality of the circumstances mandating a conclusion of presumed prejudice, we need not address the question of whether it would constitute a separate and independent basis for a due process challenge.
We thus conclude that both petitioners Isaacs and Dungee are entitled to relief under the principle of presumptive prejudice. For the above stated reasons, the decision of the district court is reversed and the case is remanded to the district court with instructions to grant the writ of habeas corpus conditioned upon the state’s right to retry the petitioners.
REVERSED and REMANDED.
The district court granted respondent's motion for consolidation of the habeas corpus proceedings of Isaacs and Dungee.
The facts are further summarized in Coleman v. Kemp, 778 F.2d 1487 (11th Cir.), published simultaneously with this opinion; Coleman v. State, 237 Ga. 84, 226 S.E.2d 911, 913-14 (1976).
All three defendants appealed to the Georgia Supreme Court, which affirmed the convictions and the sentences. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976); Isaacs v. State, 237 Ga. 105, 226 S.E.2d 922 (1976) (per curiam); Dungee v. State, 237 Ga. 218, 227 S.E.2d 746 (1976). Petitioners Isaacs and Dungee then filed petitions for writs of certiorari in the United States Supreme Court. Their petitions were denied. Isaacs v. Georgia, 429 U.S. 986, 97 S.Ct. 507, 50 L.Ed.2d 598 (1976); Dungee v. Georgia, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 598 (1976). On February 15, 1977, petitioners filed petitions for writs of habeas corpus in the Superior Court of Tattnall County, Georgia. Counsel agreed to consolidate these petitions. The Superior Court held a hearing and later issued an order denying the petitions. Dungee v. Hopper, Nos. 77-27 & 77-28 (Ga.Super.Ct. Aug. 31, 1977). Petitioners appealed and the Georgia Supreme Court affirmed the superior court’s denial of appellants' habeas petitions. Dungee v. Hopper, 241 Ga. 236, 244 S.E.2d 849 (1978). Petitioners’ subsequent certiorari petitions were denied by the United States Supreme Court. Isaacs v. Hopper, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978). At this point, petitioners applied for habeas corpus relief in the United States District Corut for the Southern District of Georgia. The District Court for the Southern District of Georgia transferred the case to the Middle District of Georgia. The District Court for the Middle District of Georgia denied petitioners’ application. Isaacs v. Balkcom, No. 80-71-THOM (M.D.Ga. Oct. 22, 1981) (order denying petitions for writs of habeas corpus). After the companion case of Coleman v. Zant, 708 F.2d 541 (11th Cir.1983), was remanded for an evidentiary hearing, this case was also remanded with that portion of the Coleman hearings dealing with the same issues. After further evidentiary development, the district court again denied relief. Docket Nos. 85-8202 (Dungee) and 85-8277 (Isaacs) were consolidated in this court with Docket No. 82-8017.
We also hold that the fourth issue is controlled by our recent case of McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc). Thus, we also reach that issue, and, following McCleskey, deny relief. Because of our disposition of the change of venue issue, we decline to rule on the other issues raised by petitioners.
While the state has not argued it on appeal, in the district court the state repeatedly objected to Ms. H.’s testimony under Fed.R.Evid. 606(b). The rule provides as follows: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. Fed.R.Evid. 606(b) (emphasis added). In our opinion, Ms. H.’s testimony was clearly outside the rule because the testimony went only to establish the historical, objective fact that Ms. H. did attend a substantial portion of Carl Isaacs’ trial. The attorneys did not inquire as to "any matter or statement occurring during the course of the jury’s deliberations” nor did they seek to determine the effect of Ms. H.’s attending Carl Isaacs' trial on her verdict in George Dungee’s case. Similarly, the attorneys did not question Ms. H. regarding her “mental processes in connection therewith." Thus, we need not decide whether Ms. H.’s attendance at Carl Isaacs’ trial would qualify as "extraneous prejudicial information,” coming within the exception and justifying inquiry into such matters. See Mattox v. United States, 146 U.S. 140, 148-49, 13 S.Ct. 50, 52-53, 36 L.Ed. 917 (1892) (distinguishing juror testimony as to "overt acts” from matters “resting in the personal consciousness of one juror”); see also Fed.R.Evid. 606(b) advisory committee note ("As to matters other than mental operations and emotional reactions of jurors, substantial authority refuses to allow a juror to disclose irregularities which occur in the jury room, but allows his testimony as to irregularities occurring outside,” and "Under the federal decisions the central focus has been upon insulation of the manner in which the jury reached its verdict”); 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 606[04] (1985) Rule 606(b) prohibits testimony as to juror conduct "which has no verifiable outward manifestations,” and approach adopted by 606(b) is that of "drawing a line between subjective and objective events").
Although petitioner Dungee focusses his argument with respect to juror H. under the rubric of “actual prejudice," that label is not controlling. Dungee has identified a specific fact (Ms. H.’s attendance at Carl Isaacs’ trial) and argues that that fact violates his Sixth Amendment right to “a fair trial by a panel of impartial, ‘indifferent’ jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Dungee’s Sixth Amendment claim cannot be easily categorized. One might argue that it constitutes a subspecies of presumed prejudice since juror prejudice is presumed from a given fact — juror H. heard the crucial Billy Isaacs’ testimony before Dungee's trial ever began — -just as prejudice is presumed to exist in a community which is saturated with prejudicial, inflammatory publicity. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (prejudice presumed from the fact of pretrial television broadcast). On the other hand, Dungee’s claim with respect to juror H. focuses on a single juror, and in that sense, the claim more closely resembles the actual prejudice found to exist in Irvin because the inquiry centers on members of the jury panel or venire. It also seems possible that Dungee’s claim might properly be characterized as one of "implied bias." See Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring) (expressing view that majority opinion in Phillips is limited to the facts before the Court and does not preclude a finding of implied juror bias, as a matter of law, in "extreme situations”). However, because we grant relief on the presumed prejudice theory based on the totality of the circumstances, we need not decide whether Dungee’s claim with respect to juror H. would provide a separate and independent basis for relief or how such a claim should be labeled.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former fifth circuit handed down prior to the close of business on September 30, 1981. Id. at 1209.
We also note that the Sixth Amendment right to confront and cross-examine witnesses may also be implicated where a juror is exposed to inculpatory evidence concerning a defendant prior to his trial. For example, juror H. heard Billy Isaacs’ testimony the week before she was selected and served as a juror in Dungee’s case. Dungee’s attorney was not there to cross-examine Billy. Although Carl Isaacs' counsel did cross-examine Billy, no one was there to cross-examine and represent Dungee’s interests. In light of our disposition of this case and except to the extent that the right of cross-examination is inherent in the presumed prejudice challenge, we need not rely upon the Sixth Amendment’s confrontation clause.
Wayne Carl COLEMAN, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
No. 82-8310.
United States Court of Appeals, Eleventh Circuit.
Dec. 9, 1985.
Rehearing and Rehearing En Banc Denied Jan. 31, 1986.
Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellant.
Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before JOHNSON, ANDERSON and CLARK, Circuit Judges.
[OPINION BY ANDERSON, Circuit Judge: type=majority]
ANDERSON, Circuit Judge:
In this capital case, petitioner Wayne Coleman appeals from the federal district court’s order denying his petition for habeas corpus relief. At trial, the state’s evidence revealed the following tragic facts. On May 14, 1973, Coleman and Carl Isaacs entered Jerry Alday’s mobile home in Donalsonville, in Seminole County, Georgia, while their two companions, George Dungee and Billy Isaacs, remained outside initially. Several members of the Alday family began to arrive shortly thereafter. When Ned and Jerry Alday drove up in a jeep, Coleman, Carl Isaacs and Billy Isaacs forced the two to enter the home. Coleman then forced Ned Alday into the home’s north bedroom and shot him in the head several times. Carl Isaacs forced Jerry Alday into the south bedroom and shot him in the head several times. Jimmy Alday then drove up on a tractor, knocked on the door, and entered. Carl Isaacs forced him into the living room and shot him to death. Mary Alday, Jerry’s wife, then drove up and Carl Isaacs forced her inside. Immediately thereafter, Aubrey and Chester Alday arrived in a pickup truck. While Mary Alday was forced into the bathroom, Carl Isaacs took Aubrey to the south bedroom and killed him. Coleman took Chester Alday to the other bedroom and killed him there. Mary Alday was then raped on the kitchen floor, taken from the mobile home, raped again in a wooded area, and then shot to death by Dungee.
On September 4, 1973, a Seminole County grand jury indicted Coleman, Carl Isaacs, Dungee, and Billy Isaacs on six counts of murder. Some three months later, Billy Isaacs pleaded guilty to armed robbery and burglary. He was sentenced to a forty-year prison term. In January, 1974, the three remaining defendants were tried separately, convicted, and sentenced to death by electrocution. Carl Isaacs’ trial began on Monday, December 31, 1973; Dungee’s trial began the following Monday, January 7, 1974, and Coleman’s on the next succeeding Monday, January 14.
The Supreme Court of Georgia affirmed Coleman’s convictions and sentences. The United States Supreme Court subsequently denied his petition for writ of certiorari. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976) (Justice Hill dissenting on the basis of the pretrial publicity), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977). Coleman filed a state habeas corpus petition in the Superior Court of Tattnall County. On June 13, 1980, the superior court denied Coleman’s habeas corpus petition. On October 31, 1980, the Supreme Court of Georgia denied Coleman’s application for a certificate of probable cause to appeal. The United States Supreme Court denied Coleman’s second petition for writ of certiorari. Coleman v. Balkcom, 451 U.S. 949, 101 S.Ct. 2994, 68 L.Ed.2d 334 (1981).
On July 8, 1981, Coleman filed for habeas corpus relief in the United States District Court for the Middle District of Georgia. In answer to Coleman’s habeas corpus petition, respondent conceded that Coleman had exhausted available state remedies for the issues raised in his petition. The district court denied Coleman’s petition. Coleman v. Zant, No. 81-42-THOM (M.D.Ga. Mar. 11, 1982). Coleman appealed to this court. Among other issues, Coleman argued that the federal district court erred in denying his request for discovery and an evidentiary hearing. After reviewing the record, we remanded to the district court for an evidentiary hearing. Coleman v. Zant, 708 F.2d 541 (11th Cir.1983). After further evidentiary development, the district court on March 18, 1985, again denied Coleman’s petition for habeas corpus relief.
Petitioner raises six issues: (1) whether pretrial publicity and the community’s atmosphere were so prejudicial and inflammatory that the trial court’s refusal to grant petitioner's motion for a change of venue deprived him of rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments; (2) whether the special prosecutor’s participation in the trial deprived him of rights guaranteed by the Sixth, Eighth and Fourteenth Amendments; (3) whether the Constitution required the state trial judge’s disqualification because he was the special prosecutor’s uncle; (4) whether the trial court’s jury instructions impermissibly shifted the burden of proof of intent and malice from the state to the defendant in violation of the Fourteenth Amendment’s due process clause; (5) whether petitioner was denied effective assistance of counsel; and (6) whether the trial court’s sentencing instructions adequately informed the jury as to its duty to consider mitigating circumstances. Since we conclude that this case is of that rare breed which does exceed the extremely high threshold test of presumed prejudice requiring a change of venue, we decline to rule on the other issues raised by Coleman.
In Part I we discuss briefly the relevant legal standard. In Part II, we describe the publicity surrounding the petitioner’s trial. To convey an accurate picture of the sentiment in this small rural community, we have found it necessary to provide a comprehensive description of the publicity, beginning with the printed media, then the broadcast media, and finally, word-of-mouth communication in Seminole County. In Part III, we apply the legal standard to the totality of the circumstances generated by the publicity surrounding the petitioner’s trial, as evidenced by the record in the case.
I. PRESUMED PREJUDICE AND A CHANGE OF VENUE
The standards governing the change of venue issue were explained briefly in Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983), but those standards bear repeating. Ultimately, those standards derive from the Fourteenth Amendment’s due process clause, which safeguards a defendant’s Sixth Amendment right to be tried by “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The trial court may be unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere. In such a case, due process requires the trial court to grant defendant’s motion for a change of venue, Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963), or a continuance, Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). At issue is the fundamental fairness of the defendant’s trial, Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). There are two standards which guide analysis of this question, the “actual prejudice” standard and the “presumed prejudice” standard. Because we grant relief on the presumed prejudice claim, we do not address the actual prejudice argument raised by Coleman.
Prejudice is presumed from.pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1644-45; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035; Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). The presumed prejudice principle is “rare[ly]” applicable, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976), and is reserved for an “extreme situation.” Mayola, supra, at 997. In fact, our research has uncovered only a very few additional cases in which relief was granted on the basis of presumed prejudice. See United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir.), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963); Pamplin v. Mason, 364 F.2d 1 (5th Cir.1966). The particular standard was clearly stated in Mayola v. Alabama: “where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, ‘[jury] prejudice is presumed and there is no further duty to establish bias.’ ” 623 F.2d at 997 (quoting in part from United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980)).
Because the question whether prejudice should be presumed is by its very nature shaped by the facts, we begin by reviewing the two key Supreme Court cases on that issue. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), is the only Supreme Court decision in which prejudice was presumed from pretrial publicity and no other outside influences. In Rideau, the defendant confessed to robbing a bank in Calcasieu Parish, kidnapping three of the bank’s employees, and killing one of them. This confession was videotaped and subsequently broadcast three times by a local television station. The three broadcasts were seen respectively by 24,000, 53,-000, and 29,000 people in the community. Id. at 724, 83 S.Ct. at 1418. At that time, Calcasieu Parish had a population of 150,-000. At trial, the defendant’s motion for a change of venue was denied by the trial court. The Supreme Court held that this denial violated the due process clause. Although the court noted that three jurors who decided the case (the defendant was convicted and sentenced to death) had seen the televised confession, id. at 725, 83 S.Ct. at 1418, the Court was willing to presume prejudice “without pausing to examine a particularized transcript of the voir dire examination of the members of the jury.” Id. at 727, 83 S.Ct. at 1419. In the Court’s view, the televised confession “was Rideau’s trial,” and “[a]ny subsequent proceedings in the community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. at 726, 83 S.Ct. at 1419.
The other important case where a defendant called for the Supreme Court to presume prejudice based on prejudicial publicity was Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). There the Supreme Court held that the defendant was not denied due process when the trial court denied his motion for a change of venue. The defendant had been convicted in 1970 of offenses related to a robbery that took place in January 1968. In 1968 and 1969, the defendant was indicted for murder in another county, declared mentally incompetent, indicted on a federal conspiracy charge, and later declared competent. All of these events were extensively publicized since the defendant himself was newsworthy by virtue of his earlier participation in the 1964 theft of the Star of India sapphire. The Court rejected defendant’s presumed prejudice claim, however, finding that there was no inflamed community atmosphere, and noting that the news articles complained of appeared seven to twenty months before the jury was selected and that the articles were “largely factual in nature.” 421 U.S. at 802, 95 S.Ct. at 2037.
II. THE PRETRIAL PUBLICITY
With this background, we consider petitioner’s claim that prejudicial pretrial publicity saturated Seminole County. Because the degree of saturation of publicity in Seminole County is relevant, we note the general population characteristics in Seminole County according to the 1970 Census. Seminole County’s population was 7,059, and there were 2,117 households. Because the presumed prejudice claim requires an extensive evidentiary showing to warrant relief and because we are required to assess the “totality of the circumstances” in examining the petitioner’s claim, an extensive discussion of the pretrial publicity is in order.
There were several sources of publicity in Seminole County in May of 1973. Newspaper coverage constitutes the most significant single source of the pretrial publicity in the record. The Donalsonville News, a weekly newspaper with a circulation of 1,800, or approximately 85 percent of the households in Seminole County, was the most widely-distributed newspaper in Seminole County; we examine it first.
In the May 17, 1973 edition of the Donalsonville News, headlines read “Community shocked by murder of six members of the Alday family.” By the time the May 17, 1973, Donalsonville News was published, petitioner Coleman and his co-indictees had already been identified as suspects in the case, and their mugshots were displayed on the front page of the Donalsonville News. Similarly, the article identified Coleman and his co-indictees as being escapees from a Maryland prison.
Another front-page article in the May 17 Donalsonville News entitled “Authorities conducting intensive search for escapees from Maryland” quoted one of the escapees as stating that he would “kill any policeman who tries to stop us for any reason.” The article also noted the possibility that Coleman and his co-indictees might have been responsible for the murder of a Pennsylvania youth, Richard Wayne Miller, whose car was found near the body of one of the victims. The article quoted William Beardsley, the director of the Georgia Department of Investigation, as saying that the circumstantial evidence against the four suspects was overpowering, and “[tjhere’s no point in looking for anybody else.”
A third front-page article in the May 17 Donalsonville News described a proclamation issued by the Mayor of Donalsonville requesting all merchants and businesses to close between the hours of 3 and 4 during the funeral to show respect for the victims’ family.
Finally, a fourth front-page article described the funeral service which was scheduled for that day.
The May 24, 1973 Donalsonville News headlines read “Four are accused of Alday murders.” Below the article was a photograph of Carl and Billy Isaacs being taken to the arraignment hearing. The article described how petitioner Coleman had confessed to the killing of a Pennsylvania youth, Richard Miller, and how Coleman was to accompany authorities to Pennsylvania to help them search for Miller’s body. The article also reported that Peter Zack Geer, the former Lieutenant Governor of Georgia, had been named special prosecutor in the case. In the article, Geer described his prior representation of the Aldays and how he had hunted and fished with two of the victims. The article also reported that at his arraignment, defendant Coleman “seemed to smirk and smile when the district attorney asked if he understood each of the charges against him.” The article concluded by noting that there was “considerable talk about the four accused killers getting a fair trial in Seminole County.” However, one of the surviving family members was quoted as stating that “[o]ur people in this county are good people ... [t]hey just want to see justice done and I believe the court will take care of that.”
Another front-page article in the May 24 Donalsonville News reported that two months earlier, Governor Jimmy Carter had approved a new death penalty statute for the state. The article went on to list the circumstances under which the death penalty could be imposed.
The district court viewed a front-page editorial in the May 24 Donalsonville News as typical of the publicity surrounding the crime. The editorial states, in pertinent part:
Some folks say the best thing to do is to refuse to acknowledge a stupid question, but the stupids have been so frequent lately, let’s go ahead and put it into print, so maybe they’ll hush.
Yes, the four men suspected and accused of the murder of the six Aldays can get a fair trial in Seminole County.
And now that you’ve asked a question, how about answering one: Whatever gave you the idea of asking such a ridiculous question?
While we’re at it, let’s go on and say a few words more.
The four suspects cannot get a passive, indifferent trial here. Nor could any other such characters. But they could get a fair one.
What’s the difference? The people of this community are capable of cooperating with and respecting the various steps toward their trial. They’re angry, very angry, about what happened on May 14, and they have never had much use for shiftless, sorry people. They were not the ones who abolished the death penalty and if you had run a survey months before the murders happened you would have found the people here opposed to doing away with it in cases in which the death penalty fits.
There is a wide difference in the question of whether the people here could give the suspects a fair trial, and in our wanting to see the guilty ones punished and removed from being able to commit the same outrages again, a few years from now, on other innocent people.
But our people want to be sure that the suspects now being held in jail are the ones who committed the crimes. We don’t want to see four innocent men punished, if they should turn out to be innocent of the charges against them, and the other charges to come.
A man is said to be considered innocent until he is proven guilty. As for whether the people of our community are biased, unfair and not capable of rendering a fair verdict, how about exercising the same courtesy to our people as you offer to a defendant.
We’re innocent of bias and prejudice, until you prove us guilty.
Wait. There are a few screwballs among us who get a thrill out of talking dumb and sounding off about what all they’d like to do to the four men. No denying this.
But they’re in the extreme minority, and they are pretty well known for their lack of sense.
E.A. spoke the sentiments of his family when he said they didn’t want to see anybody else get hurt in this terrible tragedy that came our way. “Enough people have been hurt already,” he said.
The Aldays know how painful such suffering is, and they’re wise enough, and concerned enough to not want to see more violence and sorrow.
And there’s no room for error here. The only thing that any kind of mob action, or inciting troublesome thoughts can bring is more sorrow.
Think about this often, as the long, drawn-out trial days go slowly along. It’s a hard fact of life, and there’s no profit in forgetting it. The law must be obeyed.
On page 2 of the May 24 Donalsonville News the headline read “Four suspects in Alday murder case left a long trail of trouble, sorrow.” The article was a reprint of an article which had appeared earlier in The Dothan Eagle. The article began by noting that “[t]he coldblooded trail of a quartet of confessed killers leads to Seminole County again tomorrow, one week after the bullet-riddled bodies of six Alday family members were left in the South Georgia County.” Pictures of each of the murder victims accompanied the article as well as a photograph of the six coffins at the funeral. The article continued with a dramatized account of how the murders might have taken place. By the article’s own terms, it was “mostly conjecture backed up by evidence collected by a state toxicologist.” In the article, petitioner Coleman was reported as having admitted killing the Pennsylvania youth. Similarly, the article described Mrs. Mary Alday’s mother, who died from a heart attack several days after the commission of the crime, as another victim. The article also reported that Pennsylvania authorities wanted to question the suspects concerning the death of a Pennsylvania woman who had befriended Carl and William Isaacs when their car broke down near her home. According to the article, “[t]his, authorities say, could bring the number of victims to eight or nine if Mrs. Alday’s mother is counted.” The article then described Carl and William Isaacs as well as Wayne Coleman as having “started their journey toward their ultimate destiny at Donalsonville when they were quite young.” According to the article, the mother of Carl and William Isaacs and Wayne Coleman described the boys as “habitual delinquents and truants” who “lacked respect for their family and stole from their mother and other area homes.” A Maryland prison guard was quoted as describing Carl and William Isaacs as well as Wayne Coleman as “just plain mean.”
The May 24 edition of the Donalsonville News also contained at page 9 a reprint of an editorial from the Camilla Enterprise. The editorial began by congratulating law enforcement officials for the swiftness with which they apprehended the suspects. The article then lamented the fact that law enforcement officials were unable to prevent the tragedy from occurring. According to the editorial, “[i]f you review the situation, it will lead you to the conclusion that the last half of the process of treatment and disposition of criminal cases must bear the major portion of the blame.” According to the article, for most mass murderers of the last decade “in general not too gross or difficult a punishment has been handed out.” The article concluded by noting that,
There is no single law that will correct our present conditions, nor any quick easy solutions, but there is just no place in society for the kind of individuals who place no value on the life of any other individual with whom they come in contact.
We kill rattlesnakes because they kill anything they come in contact with. We likewise shoot mad dogs or other rabid animals.
When individuals become as these lower animals, they lose their right to human treatment.
Burson, As We See It, Donalsonville News, May 24, 1973, at 9, col. 1.
The May 31, 1973, edition of the Donalsonville News was headlined “No date set for committal hearings for four accused in Alday murders.” The article described the upcoming committal hearing and noted that the trial court had appointed eight lawyers in the area to defend the suspects. The article stated that “[apparently none of the eight lawyers named want the job, but under the law in such cases, the judge must appoint defenders for the accused, and there are stiff and severe penalties for attorneys who refuse.” The article also described three of the suspects as escapees and noted that Coleman had been flown to Pennsylvania the previous week to “search for the body of the youth he is said to have admitted killing shortly after the prison escape, before the four came to Donalsonville.”
On page 2 of the May 31 edition of the Donalsonville News the headline read “Police use two psychics in search for body of Maryland high school senior.” The article described how Maryland police were using two psychics to attempt to locate the body of Richard Miller, a Pennsylvania youth. The article concluded by noting that “Coleman told police that after he escaped from a Maryland work camp, he shot and killed Miller and left his body beside a road in western Maryland near the Pennsylvania border.”
Page 10 of the May 31 edition of the Donalsonville News contained a reprint of an editorial in the Houston Home Journal. The editorial stated in pertinent part:
The horrible tragedy that struck the Alday farm family in rural Seminole County last week could have very well occurred right here in Houston County. This just wasn’t the route the vicious killers took in their escape from a Maryland minimum security prison.
The brutal, senseless murders of six members of the Alday family should serve as another warning to all society that there is a need for capital punishment in this country. How can anyone who is aware of this heinous crime, still maintain that capital punishment is too harsh and should be stricken from our society for all time?
The Alday case is a perfect case for capital punishment. It shows all too well our system of today with dealing with criminals is not working. Three of the persons charged with the execution style killings, escaped from a prison that was preparing them for life on the outside. They were to be released soon back into society. It seems clear that there are some criminals that just cannot be rehabilitated and should not be returned to society to destroy the lives of innocent, hardworking people like the Aldays.
Those who oppose capital punishment argue that it is not a deterrent to brutal crimes. But it has been so long since we had an execution in Georgia that there is [sic] really no current statistics for an accurate evaluation. On the other hand, brutal crimes have climbed out of sight in the past several years and that ought to tell the “do-gooders” something about capital punishment.
Look at it this way. When a person is convicted by the courts beyond a reasonable doubt of a crime like the slaughter of the Alday family, it seems to me there is nothing else society can do. It is absurd to accept the argument that such a criminal can be made to see the error of his ways. As long as such a criminal lives, he is indeed a threat to society. If he is put into prison, he has the opportunity for escape or parole. If he is executed, society has nothing more to fear from such a criminal.
Branch, Out on a Branch, Donalsonville News, May 31, 1973, at 10, col. 1.
The June 7, 1973, front-page headline of the Donalsonville News read “Body of youth is identified, 7th victim of Alday killers?” The first paragraph of the article reported that the Pennsylvania youth’s disappearance “was traced to four men charged with the slaying of the six members of the Alday family in Seminole County on May 14.” The article noted that the Pennsylvania youth was killed with a gunshot to the back of the head in the same method used to kill the Aldays. The article further stated that a Maryland state trooper found the body after piecing together information given to him by Carl Isaacs. The article continued on page 2 and noted that the suspects were apprehended near a roadblock in West Virginia after having stolen a car in Alabama and committed an armed robbery in Virginia “after leaving Donalsonville.”
The same article also noted that one of the lawyers appointed in the case, Julian Webb, a state senator from the Donalsonville district, had been excused from the case. Senator Webb was quoted as stating, “I absolutely cannot in good conscience, both personally and professionally, defend any of the accused.”
Page 6 of the June 7 edition of the Donalsonville News reprinted an editorial from the Baxley News-Banner. The editorial discussed the need for state Department of Investigation agents to have state-wide arresting powers. According to the editorial, the need “to track down the escaped convicts who brutally killed six members of the Alday family in Seminole County” demonstrated the need for such state-wide arresting powers. According to the article it was “a credit to law enforcement officers that the four criminals were so promptly apprehended and brought back to Seminole County to face life-long friends and relatives of the six members of the Alday family who had been murdered in cold blood.”
The June 14, 1973, front-page headline of the Donalsonville News read “New lawyers are named to four charged with murder.” Except for its implication that the death penalty was appropriate in the case, the article was in other respects merely factual. Another front-page article entitled “Maryland to seek indictments, too,” noted that an “Allegheny County (Maryland) prosecutor” indicated that the four suspects would be indicted for the murder of Pennsylvania youth Richard Miller, as well.
The July 12, 1973 headline in the Donalsonville News stated: “Attorneys ask hearing for accused in Alday murders.” Except for a brief repetition of facts of the crimes, including a reference to finding the nude body of Mary Alday and except for a suggestion that the case could involve the death penalty, the accompanying article contained only a description of procedural steps.
The July 19, 1973 Donalsonville News reported in a front-page headline that “Committal hearing time set for accused in Alday case.” The article dealt primarily with procedural matters, but did note that the four suspects were not only charged with the murder of the six Aldays but also faced murder charges in the death of the Pennsylvania youth Richard Miller. The article also briefly repeated the facts of the crimes.
The front-page headline in the July 26, 1973 Donalsonville News read: “Carl Isaacs Ordered Held for Action of Grand Jury.” The article reported that Carl Isaacs was bound over to the Seminole County Grand Jury after a closed committal hearing. Although the hearing was closed to the press and the public, the Donalsonville News reported that testimony at the hearing “centered mainly around fingerprints left by the suspects at the mobile home where the five Alday men were slain, and fingerprints found in a car owned by Jerry Alday, which was found abandoned in Livingston, Ala.” The article noted the interest of one of the defense attorneys in the constitutionality of the death penalty law, and the fact that Sen. Julian Webb was relieved from appointment in the case because he had sponsored the new death penalty statute. The article again noted that the four suspects were also charged with the death of Pennsylvania youth Richard Miller. Similarly, the article noted that Mary Alday had been raped and shot in the back of the head as well as noting that the men had been shot in the back of the head. The article also recapitulated the details of the suspects’ escape from a Maryland minimum security prison and the details of their arrest in West Virginia. Finally, the article concluded by noting that petitioner Coleman had reportedly confessed to the Pennsylvania murder of Richard Miller.
The August 23, 1973 issue of the Donalsonville News contained the front-page headline “Grand jury drawn to serve for special term Sept. 4th.” The article briefly described the grand jury procedures and contained no prejudicial information.
In the September 6, 1973 issue of the Donalsonville News, the headline read “Grand jury returns total of 19 charges in Alday cases.” The bulk of the article was factual and described the indictments returned by the grand jury, although the article did remind readers that the suspects’ “arrest climaxed a massive manhunt that carried the men from their escape from a Maryland prison on May 10 down the Atlantic seaboard, westward through Seminole County, to western Alabama, and back through Kentucky and Tennessee before they were arrested in Lynch, West Virginia.”
The September 13, 1973 issue of the Donalsonville News contained the headline “Lawyers seek changes for accused in Alday slayings.” The headline and much of the article was factual and nonprejudicial, describing how attorneys for William Isaacs had sought to get his case transferred to juvenile court, and indicating that attorneys for Carl Isaacs had filed a motion for change of venue. However, the article again noted that the suspects’ “arrests climaxed a massive manhunt that carried the men from their escape from a Maryland prison on May 10 down the Atlantic coast, westward through Seminole County, to Livingston, Ala., and back up through Kentucky and Tennessee before they were arrested in Lynch, West Virginia.” The article also indicated that the suspects were accused of “several other crimes along that t* route, including the murder of a Pennsylvania youth and at least two counts of armed robbery.” The article also reprinted a letter from the trial court judge to the attorneys for Carl Isaacs which cautioned the attorneys about “trifling with the Court.” Among other things, the letter stated:
I think that now is a good time to get this message to you. I expect you and your law partner to do everything within your power to defend your client, but at the same time I expect you to respect the Court and not to undertake to trifle with the Court. In short, what I have reference to here is that in your Motion for Change of Venue you request that the trial be held in one of several place outside of the Pataula Judicial Circuit and several places beyond the limits of the State of Georgia. I notice in the Press that your law partner in his press release or in a statement to the press recognized the fact that this could not be done. Why it was done I do not know. I call to your attention that you came into this case voluntarily and you are welcome in this case and always welcome to practice law in the Pataula Judicial Circuit and I assure you that the court at no time will be disrespectful to you or your associates or clients nor to anyone else intentionally. I will not tolerate any trifling with the Court by you or anyone else.
The October 11, 1973 Donalsonville News front-page headline read “Judge Geer sets December date for Alday murder trial.” The article reported the upcoming trial dates and noted that the trial judge had denied the defendants’ motion for change of venue. Although the article primarily reported procedural aspects of the case, the article did remind readers that' each of the victims “had been shot several times in the back of the head.” The article also noted that Mary Alday’s body had been found in the woods on a neighboring farm and that she had been shot and raped.
The December 27, 1973 Donalsonville News front-page headline read “Accused in Alday Murders Go on Trial Here Monday.” The article first reported that Billy Isaacs had pleaded guilty to charges of burglary and armed robbery the previous Friday. The article then noted in five separate instances that Billy Isaacs was expected to be a key witness in the prosecution’s case. They read:
He [Billy Isaacs] is expected to be a key witness for the prosecution in the coming trials, according to a reliable source.
Billy Isaacs, 16, one of four Maryland men charged in the Alday family slayings in Seminole County, is expected to be a key witness for the prosecution against his brothers and a third companion whose trials are scheduled to begin Dec. 31.
Young Isaacs, who has been confined in the Randolph County Jail at Cuthbert since late May, could well be the only eye witness to the crime available to the prosecution.
Isaacs has also reportedly issued a statement to lawmen describing the slayings of Ned Alday, his three sons, Jimmy, Jerry, and Chester, his brother Aubrey, and his daughter-in-law, Mary Campbell Alday.
Although informed courthouse sources maintain the younger Isaacs will be a key witness against his companions, special prosecutor Peter Zack Geer, of Albany, Saturday declined comment on the possibility that the youth will be called to testify.
The article also noted that the four suspects “were arrested in West Virginia following a robbery attempt in neighboring Virginia.” In addition, the article stated that “Coleman has also admitted the slaying of a 19-year-old Pennsylvania youth, Richard Miller.”
The January 3,1974 Donalsonville News front-page contained pictures of Carl Isaacs and the two sets of opposing lawyers. The front-page headline read “First Alday murder trial underway. Billy Isaacs testifies on events that took place May 14; Carl Isaacs first to face jury.” Among other things, the article noted that the special prosecutors retained to assist in the prosecution of the case, Mr. Geer and Mr. Lee, were “longtime friends of the victims of the May 14th slayings, and of their families.” The article then noted that Carl Isaacs’ attorney, Bobby Hill, “indicated his primary purpose [in taking the case] is to test the state’s new capital punishment law.” The article also reported that the prosecution was expected to ask for the death penalty in each of the three pending cases. The article then published the names and occupations of each of the jurors selected in Carl Isaacs’ case. The article also reported that most of special prosecutor Geer’s questioning of prospective jurors centered on the death penalty and stated that jurors who indicated any opposition to the death penalty were struck by Mr. Geer. The article stated that prospective jurors who indicated a strong belief in capital punishment were struck by the defense. The article also noted that “[d]ozens of reporters from newspapers, radio and television stations and wire services were on hand to cover the trial, part of the story that was selected as the second biggest story in the entire state last year.” The article also indicated that fingerprint experts from the state crime lab testified that Carl Isaacs’ fingerprints were found at the murder scene. The article noted that Mary Alday’s watch was found in the possession of one of the defendants and was introduced as evidence in the case. The .article indicated that Carl Isaacs remained expressionless, “even when he glanced at enlarged photographs of the dead Aldays his attorneys were studying.” Finally, the article concluded by noting that the state’s “objective will be to prove each of the men had a part in the murders, without emphasizing which man pulled the trigger on which particular victim.”
Also appearing on the front page was the headline “16-year-old Billy takes stand and tells of tragic ‘spree’ of violence they brought to the Aldays.” In its entirety, the newspaper account of Billy Isaacs’ testimony read as follows:
Billy Isaacs took the stand Wednesday morning to outline just how the six members of the Ned Alday family were killed on May 14.
He said that the “spree” started out in Baltimore, Md., and ended up at Jerry Alday’s mobile home about 4 p.m. on May 14.
Billy testified that Wayne Coleman and Carl Isaacs went into Jerry’s unlocked mobile home when no one was home. While they were in there, Billy said two men in a blue jeep came to the mobile home and they were forced at gunpoint to go inside the trailer.
Billy said he forced the older man to empty his pockets and that Carl took a pen knife, wallet, some change and a cigarette lighter from the younger man who apparently was Jerry Alday since Carl asked him if he was married and lived in the trailer residence.
The younger man said he did live in the mobile home and that he was married and his wife would soon be home. He said the man begged Carl not to hurt her.
Carl took one of the men into the south bedroom and Wayne took the other in the north bedroom, Billy said. Shortly thereafter he heard shots in both bedrooms.
Just about the time that Carl and Wayne came back to the kitchen a “middle-aged” man pulled into the yard on a John Deere tractor. Billy said he got off the tractor and knocked on the closed back door. Then Carl opened the door and stuck a gun in his face, and made him come into the trailer.
Billy said Carl made the man take off his green coveralls, sunglasses and hat and then took him into the living room where he made him lie face down on the sofa. The younger Isaacs said Carl then shot the man one time in the head.
A short time later Mary Alday arrived at the trailer and Carl who was moving the tractor, came around back of her, stuck a gun in her back and forced her into the mobile home.
Billy said that while Carl was going through the woman’s purse two men in a green pickup truck drove into the yard. Billy said he and Carl ran around the trailer and came up on each side of the pickup from the back side. He said Carl stuck a gun in the driver’s face and both men were forced into the mobile home.
The men were made to sit on the floor, and Mary, who was standing beside the doorway told them that the man in the living room was hurt.
Carl then took Dungee and Mrs. Alday in a bathroom, he said. Then he came back and took one of the men in the south bedroom and Wayne took the other man in the north bedroom.
Billy said there were shots in the north bedroom but only clicking noises in the south bedroom because Carl’s gun was empty. He said Carl came back into the kitchen and grabbed his .38 cl. pistol and went back into the bedroom where two shots were fired.
“He came out laughing,” Billy said. “Carl told us ‘that bastard begged me for mercy.’ ”
Billy said he went outside with Wayne to help them transfer “their stuff” from their car to Mrs. Alday’s automobile. When he went back inside Mrs. Alday was lying on the floor with the bottom part of her pants suit off and her top around her neck. He said Carl was standing by the table with his pants down.
Later Mrs. Alday was forced to go with the four men. She left the trailer fully clothed but with a handkerchief around her eyes and mouth and her hands tied behind her.
Billy said they went down the road a ways after pushing off their car with Mary’s car, but that Wayne discovered he had lost his wallet and they went back to the trailer home to get it.
Then, Billy said they went to some woods and “wiped” their car of fingerprints.
He said that Mrs. Alday was raped several times in the clearing before she was shot.
Then all four got into Mrs. Alday’s car and went to Alabama.
The January 10,1974 issue of the Donalsonville News contained the front-page headline “Two found guilty in Alday murders. Third man to go on trial here next Monday morning.” Under the headline was a picture of Dungee between two major articles. The article on the left was headlined, “Carl Isaacs, 19, first to hear jury’s verdict of death by electrocution,” and reported that the jury took only 68 minutes to find the defendant guilty of murder and only 38 minutes to decide that he should receive the death penalty. The article then noted that the jurors struggled for two hours to render a verdict which was considered acceptable under the law. According to the article, “[t]here were no indications of any waivering or doubt by the members of the jury, and on the seventh effort the correct verdict was entered into the court records.” The article then noted that Carl Isaacs’ attorneys contemplated an appeal in the case. The article stated:
Hill [Isaacs’ attorney] made no secret that he took the case as a part of his battle against the death penalty, and not because he thought Isaacs and his companions were innocent. He made no effort to proclaim and establish innocence during the trial.
In his statements to the jury, Hill and Farrington seemed to be basing all their efforts toward admitting Isaacs was guilty of the charges against him, but there should be no death sentence. Instead, he claimed the defendant should be placed in prison and studied.
The article also reported that in Carl Isaacs’ case, the jury found aggravating circumstances of robbery, burglary, rape, and kidnapping. The article also stated that defendant Carl Isaacs yawned when special prosecutor Geer asked the jury to impose the death penalty in his closing argument.
A second front-page article, to the right of Dungee’s picture, in the January 10 Donalsonville News was entitled “George Dungee, 35, second on trial, found guilty of May 14th murders.” After reporting that the jury had returned the death penalty in Dungee’s case, the article stated “Dungee made no signs of emotion. In fact, remarked one observer, he looked bored.” The article noted that the jury took 58 minutes to reach the guilty verdict, and approximately 2 hours to return the death sentence. The article also reported that although Dungee actually pulled the trigger on only one victim, the jury found him guilty on all six counts because state law “provides for guilt of all aiding and/or abetting such crimes.” As in the Carl Isaacs case, all the names of the jurors on Dungee’s panel were listed in the newspaper. The article stated that “Billy Isaacs testified Tuesday that he personally saw prison escapee George Dungee assault and kill Mrs. Mary Alday last May, after her husband and four other Alday men had been murdered earlier in the day.” The article recounted how “Billy again went through a detailed description of the execution-style murders of the six Aldays after he, Carl, Dungee and Wayne Colemen arrived at the mobile home of Mary and Jerry Alday, last May 14th.” The article also noted that, despite special prosecutor Geer’s remark in his opening statement that he intended to introduce a confession from Dungee, he failed to do so after defense attorneys said that they would move to suppress the confession. The article also contained a detailed account of Billy Isaacs’ testimony in the Dungee case. It stated:
Billy said that after he and the other three men took Mrs. Alday to the woods where they forced her to take off her clothes, he saw Dungee assault the young woman, later forcing her to lie face down on the ground and shooting her twice in the back.
Billy testified that Carl initially handed Coleman a pistol to shoot Mrs. Alday with, but then Dungee commented, “What about me?”
Billy said Coleman “shrugged his shoulders,” handed the pistol over to Dungee, who then forced Mrs. Alday to walk a short way from them and shot her.
The younger Isaacs boy said that after Dungee had shot Mrs. Alday, he reached down and took her Timex wrist watch from her arm and put it in his pocket. Other testimony during the day had indicated that the stolen watch was the same one found on Dungee when he and the other three men were arrested in West Virginia.
A third front-page article in the January 10, 1974 issue of the Donalsonville News was headlined “Trial of Wayne Coleman, 26, to open at 9:30 in Seminole Superior Court,” and was accompanied by a picture of Coleman. After noting petitioner Coleman’s upcoming trial date, the article reminded readers of the fact that Coleman also faced charges in Maryland in the death of a Pennsylvania youth, Richard Miller. The article stated that the Pennsylvania youth “was slain with a gunshot wound in the back of the head, the same method used to kill the Aldays.” Finally, the article noted that petitioner Coleman, Carl Isaacs, and George Dungee were all escapees from a Maryland prison.
The Albany Herald was also distributed in Seminole County and had a daily circulation of 518. It contained numerous stories concerning the Alday case.
The May 15, 1973 front-page headline in The Albany Herald read “Family of Six Discovered Slain Near Donalsonville.” The article recounted how the bodies of six members of the Alday family had been discovered. The article noted that there were few leads at that point, but that one witness told police that Mrs. Mary Alday was seen leaving her home yesterday and being followed by three “hippie types.” The article concluded with a quotation from Seminole County Coroner Paul Mosley in which he stated that “[t]his is something that sounds like the wild West. Things like this just don’t happen here. These are things that you read about that happen in places like Chicago.”
The May 16 edition of The Albany Herald contained the front-page headline “Seminole Killers Object of Nationwide Dragnet.” Pictures of the four suspects were placed immediately beneath the headline. The first sentence of the article identified three of the four suspects as escaped convicts. The article also stated that the suspects were believed to have abducted a Pennsylvania youth, Richard Miller. According to the article, “[ojfficials also said several other unsolved slayings along the Eastern Seaboard may be linked to the four.” The article also noted that “the three escapees were serving terms for convictions of crimes ranging from robbery to burglary.”
Another article at page 5 of the May 16 Albany Herald was headlined “One of Victims Shot 7 Times.” The article quoted Coroner Paul Mosley as stating that “[y]ou can cover the bullet holes with a half dollar.”
Another front-page article in the May 16 Albany Herald was entitled “Couldn’t Think of Nobody Disliking Them.” The article began by noting that the “slaughter of a quiet, clean-living farm family has left their southwest Georgia neighbors in enraged shock.” A local resident, speaking of the deceased victims, stated that he “couldn’t think of nobody disliking them.” The article generally described the high esteem neighbors held for the Alday family. The article also noted that the four suspects sought in connection with the killings were escapees from a Maryland prison.
The May 17 Albany Herald contained the front-page headline “Alday Vehicle Found in Alabama. Reports on Suspects Pour In.” The article began by noting that “sorrowing Seminole County witnessed the mass funeral service for the Alday family.” The article noted that the Alday car had been found near Livingston, Alabama, and stated that “three escaped convicts and a fourth person [were] being sought in connection with the most brutal mass slayings in Georgia history.” In the same article, Georgia Division of Investigation Director William Beardsly indicated that a fingerprint found at the scene of the crime had been identified as belonging to Carl Isaacs. Beardsley further described circumstantial evidence against the four suspects as “overpowering” and stated “[t]here’s no point in looking for anybody else.”
Another front-page article in the May 17 Albany Herald was headlined “Grieving Family Ponders Slaying of Six Loved Ones. Governor Offers Assistance.” In the article, a special assistant to Governor Jimmy Carter indicated that the slaying “was perhaps the worst crime in Georgia history.”
In a third article on page 5 of the May 17 Albany Herald, the headline read, “Sheriff Wants Revenge but Beholden to Badge. ‘I’d Precook Them.’ ” The article quoted Sheriff Dan White as follows:
If I had my way about it, I’d have me a large oven and I’d precook them for several days, just keep them alive and let them punish____ And I don’t think that would satisfy me.
The article continued and stated that “[t]he integrity of the twenty-year veteran of law enforcement, however, overrides such emotion.” Sheriff White stated:
Whenever I’m protecting them, I’m going to do my job and bring them to court, and I hope they’ll get justice.
I don’t see where they could put up any plea for mercy____ The acts of these men are lower than animals.
If a citizen gets out of hand and starts shooting people up, there’s only one way to arrest and that’s with a shotgun.
Any man that believes in God believes in capital punishment____ I could throw the switch to the electric chair and never lose a minute’s sleep.
Another page 5 article in the May 17 Albany Herald was headlined “Suspects Reported in Texas,” and quoted a Texas service station operator as having spotted the suspects in east Texas. In the same article, a Georgia official was reported as stating that there was ballistics evidence that the four suspects had killed the members of the Alday family.
The May 18 front-page headline of The Albany Herald read “Seminole Slay Suspects Caught in West Virginia.” The article generally recounted the manner in which the suspects were apprehended in West Virginia and noted that the police roadblock was set up after the four men robbed a grocery store across the border in Virginia. In the article, Sheriff Dan White was reported as having stated that the suspects would not be jailed in Seminole County when they were brought to Georgia “because of ill feeling among residents of the rural community.” Sheriff White stated, “They will be jailed outside of Seminole County. I have an obligation to protect everybody. I want them brought to court. I want them brought to justice.” The article indicated that the defendants had been involved in a crime spree along the Eastern Seaboard, and that additional charges against the four suspects would probably include murder in Pennsylvania, auto theft in Alabama, and robbery in Virginia.
Another front-page article in the May 18 Albany Herald was headlined “Deserve What They Get: Mother of Slay Suspects.” The first sentence of the article quoted the mother of Carl and Billy Isaacs and Wayne Coleman as stating “[t]hey are old enough to know right from wrong and deserve what they get when captured.” The article also noted that Isaacs, Coleman and Dungee were escapees from a Maryland prison where Isaacs and Coleman were serving terms for burglary and Dungee was serving a sentence for contempt of court. The article concluded with a quote from Mrs. I., “[t]hey had no respect for their family and those people in Georgia. How can they expect any from us?”
Another front-page article in the May 18 Albany Herald contained the headline “Mrs. Alday’s Mother Dies at Colquitt.” In the article, a local physician stated that “complications arising from Mrs. Campbell’s diabetic condition and grief over her daughter’s slaying probably caused her death.”
A fourth front-page article in the May 18 Albany Herald was headlined “Thousands Attend Biggest Funeral Ever in Sowega.” According to the article, “[i]t was by far the largest funeral ever conducted in Southwest Georgia.” The article described dignitaries attending the funeral as including Tommy Irwin, State Agriculture Commissioner; Mrs. Jimmy Carter, the governor’s wife; Hugh Broom, Chairman of the State Board of Transportation; and Cloyd Hall, a special assistant to Governor Carter.
The May 19 edition of The Albany Herald was headlined “Alday Slay Suspects to be Returned to Donalsonville.” The front-page article generally described how the suspects had waived extradition to Georgia, and it also noted that the four would likely face charges of escape in Maryland, murder in Pennsylvania, armed robbery in Virginia, and auto theft in Alabama. In the same article, Coleman was reported to have confessed to an FBI agent to the murder of Pennsylvania youth Richard Miller. When asked why the Pennsylvania youth was killed, Coleman was reported as stating because “he didn’t want any witnesses.” In the same article, Georgia Division of Investigation Director William Beardsley stated that it would be up to Sheriff Dan White as to where the suspects would be placed when they arrived in Seminole County. Beardsley added, however, that he disagreed with reports that the suspects might not be safe in Seminole County. Beardsley stated, “I don’t believe there are that kind of people down there. I think they will be adequately treated.”
The May 20 edition of The Albany Herald contained the front-page headline “Sheriff Maintains: Seminole Jail Inadequate to Hold Slaying Suspects.” In the article, the sheriff was reported as saying that the inadequacy of the Seminole County Jail was the sole reason for the suspects being held outside Seminole County and that fear of mob vengeance had nothing to do with the decision. Despite Sheriff White’s remarks, the article stated that “[h]owever, residents have talked of lynching since the bodies of the six were found in a mobile home of the Alday farm early Tuesday. Some have mentioned other forms of extreme punishments for the killers.” In the article, the prospect of a change of venue was mentioned and Sheriff White stated his belief that the four would stand trial in Seminole County. The sheriff further remarked, however, that “[i]f it were left up to me, I’d like to go ahead and try them today and get it over with.” The headline in another front-page article in the May 20 Albany Herald read “Gun Sales on Rise in Rural Seminole.” In the article, local gun store operators reported that there had been a noticeable increase in the sale of firearms in Seminole County.
Pictures of the four suspects being led to their extradition covered the front page of the May 22 edition of The Albany Herald and a headline read “Four Arraigned Without Incident.” The article generally recounted the security precautions taken by police in transporting the suspects to their arraignment hearing. The article, however, also reported petitioner Coleman’s confession to the murder of Pennsylvania youth Richard Miller. Coleman was again quoted as stating that Miller was killed because they did not “want any witnesses.” The article concluded by noting that Peter Zack Geer, former Lieutenant Governor of Georgia and a personal friend of the victims, had been hired by the surviving members of the family to act as a special prosecutor in the case.
Another front-page headline in the May 22 Albany Herald read “Donalsonville Slay Suspect Snickers as Charges Read. Army of Lawmen Guards Men.” According to the article, talk of vengeance was the reason why numerous state troopers and Georgia Department of Investigation officers were on hand to escort the prisoners to the arraignment hearing. The article reported that “Coleman threw his head back slightly and snickered” when asked whether he understood the charges against him. The article also noted that when the arraignment hearing was completed, and Coleman was escorted toward the door, his “eyes stopped on a female reporter from one of the wire services who had been sitting on the back row of the jury box.” The female reporter was then quoted as saying, “I don’t like the way he looked at me. God, did you see the way he looked at me?” The article also quoted special prosecutor Geer as stating that he had a “special interest” in the case since he had known the Aldays for a long time and had hunted and fished with two of the victims. The article concluded by noting that Geer would help in the prosecution of what had been described as the “worse [sic] crime in Georgia history.”
On page 6 of the May 23 edition of The Albany Herald the headline read “First Day’s Search for Body Futile. Suspect ‘Unable or Unwilling.’ ” The article described how petitioner Coleman had been taken to Pennsylvania to assist in locating the body of Pennsylvania youth Richard Miller. The article also noted that Coleman reportedly confessed to the killing of Miller to eliminate witnesses who might later identify him.
An article on the front page of the May 24 Albany Herald was headlined “Alday Suspects Could Face Death.” The article noted that a newly enacted state death penalty law could be applied to the four suspects. The article also indicated that three of the suspects, Carl Isaacs, Coleman, and Dungee, were escapees from a Maryland prison. The article stated that Coleman was serving a ten-year sentence for robbery; Isaacs, a four-year sentence for burglary; and Dungee, an eighteen-month sentence for contempt of court.
The May 25 edition of The Albany Herald contained front-page headlines: “Judge Names Attorneys for Alday Slay Suspects. Nobody Wants Job.” The article recounted how the trial court had named eight attorneys to defend the four accused but that “apparently none of the eight want the job.” Attorney Harold Lambert was quoted as stating that “[t]his is the worst thing that’s ever happened to me professionally. There’s just no way I can get out of it. I pleaded with the judge for about 15 minutes yesterday but he apparently didn’t see any of my reasons as either legal or valid.” Other attorneys were quoted as stating that “they planned to provide the best courtroom defense, but with ‘reluctance.’ ” The article also recounted how state senator Julian Webb of Donalsonville “does not want the job.” According to the article, Webb stated that he should be excused from the case because of his close relationship with the victims’ family and because of his sponsorship of the Georgia death penalty statute, which would likely be at issue in the case.
The May 26 Albany Herald contained an article at page 5 which was headlined “Psychic Pair Leads Lawmen in Search for Missing Youth. Alday Slay Link.” The article described how Maryland and Pennsylvania authorities had used two psychics to try and locate the body of a Pennsylvania youth, Richard Miller. The article noted that the youth “is believed to have been murdered by Wayne Coleman.” The article concluded by noting that “Coleman told police that after he escaped from a Maryland work camp, he shot and killed Miller and left his body beside a road in western Maryland near the Pennsylvania border.”
Another article at page 5A of the May 26 Albany Herald contained the headline “Blakely Lawyer Also Protests Alday Slayings Defense Role.” In the article, attorney Tracey Moulton complained of the law which required Superior Court judges to appoint counsel for indigent defendants. Although Moulton’s complaints focused on the “terrible financial burden” that representation of petitioner Coleman would impose, he was also quoted as stating that attorneys appointed to defend the four suspects would face a “loss of money and friends.” Of the eight attorneys appointed to represent the defendants, the article stated that “all say they did not want to become actively involved in the defense.”
At page 5 of the June 4 edition of The Albany Herald the headline read “Seventh Victim of Alday Suspects Said Found. In Pennsylvania.” The article briefly reported how the body of Pennsylvania youth Richard Miller had been found near the Pennsylvania-Maryland border. The article also stated that “[i]n a confession to the FBI, Wayne Coleman, 26, said he shot and killed Miller after he and his three companions commandeered the victim’s car near here.”
In the June 8 edition of The Albany Herald an article on page 3 was headlined “Hoe Hands for Alday Work Sought.” The article briefly recounted how volunteers were needed to help hoe the peanut fields on the Alday farm.
An article on page 6B of the June 13 edition of The Albany Herald started with the headline “Bainbridge Attorney Happy With Alday Slay Case Relief.” In the first sentence of the article, attorney J. Willis Conger “summed up his feelings of a court order releasing him as co-counsel” by stating, “[sjince the judge signed the order at noon yesterday there’s nothing anybody could say to me that could make me mad.” The article also stated that "[a]ll eight [appointed attorneys] have voiced strong protests over their appointments.” The article also noted that the substituted lawyers volunteered as part of their attempt to overrule the newly enacted death penalty statute.
The June 14 issue of The Albany Herald contained an article headlined “Father’s Day Dedicated to Alday Family.” The article on page 17A briefly recounted how Father’s Day in Seminole County had been declared “Alday Memorial Day.” On that day, all churches in the county were to take up a special collection for the Alday Memorial Fund to be used for a new sanctuary for the Spring Creek Baptist Church.
An article on page 12B of the June 22 edition of The Albany Herald was headlined “Alday Slay Suspects Did Not Ask for Committal Hearing, Foster Says.” In the article, district attorney Ralph Foster stated that the four suspects have not requested a committal hearing. Foster was quoted as saying that the four “will be indicted for murder.” The district attorney further stated that he had “no doubts the four suspects would receive a fair trial in Donalsonville.” The district attorney was quoted as saying that he was “sure the jury will listen to the defense of these attorneys. A person is entitled to a good defense [and] a lawyer of their choice.”
Headlines for an article which appeared in the July 5 edition of The Albany Herald stated: “Alday Case Could Test Death Penalty.” In the article, attorney Harold Lambert was quoted as stating that “if they [the defendants] are found guilty I believe this case will be used to determine whether the state’s death penalty law will stand up before the Supreme Court.” The article continued, noting that the newly-enacted Georgia death penalty statute had not yet been subjected to appellate court scrutiny.
Headlines for an article which appeared in the July 6 edition of The Albany Herald read “Closed Hearing Sought for Alday Slay Suspect.” The article on page 10A described how attorneys for Carl Isaacs were seeking a closed committal hearing to limit press coverage in the case and assure their client’s right to a fair trial. In addition to the factual and nonprejudicial description of the request for a closed committal hearing, the article also noted that murder charges had been filed against petitioner Coleman in the death of a Pennsylvania youth, Richard Miller. The article stated that both “Georgia and Pennsylvania authorities say Coleman admitted killing Miller after the youth attempted to stop him, the elder Isaacs, and Dungee shortly after they escaped from a Maryland minimum security prison.” The article continued, noting that Carl Isaacs’ attorneys, Hill and Farrington, “earlier said ... [they] had ‘volunteered’ to represent Isaacs in an effort to continue their fight against a new, but yet untested capital punishment bill passed by the general assembly.”
A front-page article in the July 19 edition of The Albany Herald contained the headline “Closed Preliminary Hearing Set for Alday Slay Suspect.” Although the article focused on nonprejudicial procedural matters, it also reported the facts of the crimes, the Isaacs’ defense attorney’s interest in challenging the new death penalty statute, and noted that petitioner Coleman had been charged with the murder of Pennsylvania youth Richard Miller and that Miller’s car was found near the body of Mrs. Mary Alday.
An article in the July 21 edition of The Albany Herald was headlined “Attorneys Await Outcome of Slay Suspect’s Hearing.” The page 5A article described how attorneys for all the suspects other than Carl Isaacs were awaiting the evidence presented at Carl Isaacs’ preliminary hearing before deciding whether they would request similar proceedings for their clients. According to the article, “[s]everal of the eight court-appointed attorneys representing the four defendants have voiced reluctance at accepting the cases but now say they have no choice but to follow the court order.”
A front-page headline in the July 22 edition of The Albany Herald read “Alday Slay Suspect to Face Grand Jury,” accompanied by a photograph of Carl Isaacs. The article briefly recounted how Carl Isaacs was bound over to the grand jury at his committal hearing. Although the hearing was closed, the article stated: “[testimony Saturday [at the hearing] centered mainly around fingerprints left by the suspects at the mobile home where five of the six bodies were found and fingerprints found in a car owned by Jerry Alday, which was found abandoned in Livingston, Ala.” Once again, the article stated that “Coleman reportedly told police of an earlier murder in which a Pennsylvania youth was slain when he attempted to recover a stolen pickup truck from the elder Isaacs, Coleman, and Dungee.”
An article on page 9A of the August 7 Albany Herald contained the headline “Remaining Alday Slay Suspects Face Hearing.” The article began by stating that security at the upcoming hearing was expected to be heavy. The article quoted “a court spokesman who asked not [to] be identified” as stating that the major portion of the testimony at the committal hearing previously held for Carl Isaacs centered around fingerprints found at the victims’ trailer and similar evidence found in a car stolen from the house.
A subsequent article appeared on page 8A of the August 8 edition of The Albany Herald and was headlined “Security Stringent at 3 Alday Slay Suspects’ Hearing.” The article began by indicating that security was heavy at the preliminary hearing held for the three remaining suspects. The article also stated that the state expected to call four witnesses at the hearing “to present evidence found at the death scene and in a stolen automobile.” The article then recounted how the suspects were arrested when they attempted to break through a roadblock “erected after Virginia law enforcement officials reported a car they were chasing had crossed into West Virginia following an armed robbery.” The article then noted that petitioner Coleman was also accused of the murder of a Pennsylvania youth, Richard Miller.
The headline for a page 7A article in the August 9 edition of The Albany Herald stated: “Three Alday Slay Suspects to Face Grand Jury Action.” The article began by noting that the three remaining suspects were bound over for grand jury action at their preliminary hearing. The article again stated that “[tjestimony reportedly centered around fingerprints found at the murder scene and in a car stolen from a mobile home where five of the victims were found.” The article also noted that the four suspects were arrested when they attempted to break through a road block set up by West Virginia authorities after they were notified that Virginia authorities were pursuing four men suspected of the armed robbery of a Virginia store. The article further recounted that “Carl Coleman also told investigators that he had killed a Pennsylvania youth shortly after he, both Isaacs and Dungee had escaped from a Maryland prison.”
A front-page headline in the Sunday, August 26 edition of The Albany Herald read “Attorney for. Alday Slay Suspects Says He Will Ask Venue Change.” The article indicated that Carl Isaacs’ attorney, Bobby Hill, stated that he intended to seek a change of venue if his client was indicted by the grand jury. The article noted Isaacs’ attorneys’ interest in the case as an opportunity to challenge the new death penalty statute, and also noted that three of the four suspects were escapees from a minimum security prison in Maryland, that Coleman was also charged with another murder in Pennsylvania, and that Coleman reportedly confessed to the murder of the Pennsylvania youth to FBI agents.
A headline on page 20 of the August 28 edition of The Albany Herald read “Second Alday Slay Suspect Attorney Says He Will Request Venue Change. Hits Newspaper Accounts.” The article described how attorney Harold Lambert indicated that he would request a change of venue for petitioner Coleman. In the article, Lambert indicated that he planned to use news stories from The Albany Herald to support his claim that prejudicial publicity prevented his client from receiving a fair trial in Seminole County. Unlike the previous articles describing procedural maneuverings in the case, however, this article contained no recapitulation of the suspects’ arrest, the Pennsylvania murder, or Coleman’s confession to the Pennsylvania murder.
A front-page article in the September 4 edition of The Albany Herald read “Suspects in Alday Killings Face Multiple Indictments.” The article began by describing how each of the suspects would be indicted for six counts of murder and one count each of kidnapping, armed robbery, and burglary. The article also indicated that defendants Carl Isaacs, George Dungee, and Carl Coleman would also be indicted for rape. The article then stated that the suspects “were charged in the multiple slayings shortly after they were arrested on an armed robbery charge by West Virginia State Police.” The article then indicated that petitioner Coleman had also been charged in the murder of a Pennsylvania youth, Richard Miller, whose car was found near Mrs. Alday’s body.
A front-page article in the September 5 edition of The Albany Herald contained the headline “Lawyers for Accused Alday Killers Want Venue Change.” The article described how attorneys for the four suspects were beginning their efforts to obtain a change of venue. The article was primarily factual and contained no prejudicial information concerning the defendants. The September 11 and September 14 issues of The Albany Herald contained similar nonprejudicial accounts of the defense attorneys’ change of venue motions. A September 19 front-page article similarly dealt with motions to disqualify the trial judge, although that article also noted that the special prosecutor was hired by the family, that the defendants were escapees, and that Coleman had also been charged with the murder of the Pennsylvania youth.
The headline for an article in the September 21 edition of The Albany Herald read “Alday Slay Case Venue Change Hearing Thursday.” The article on page 9A told how attorneys for the suspects were seeking to have the trial moved outside Seminole County. The article also described how petitioner Coleman’s attorneys had filed a motion for the trial judge to disqualify himself because of his relationship to special prosecutor Peter Zack Geer. The attorney was quoted as stating that he filed the motion primarily for “self protection.” Attorney Lambert was quoted as stating that “[i]f Carl Wayne Coleman is found guilty I don’t want anyone to say he had an incompetent attorney that did not request the judge to step down because he was the uncle of the prosecuting attorney.” Finally, the article noted that special prosecutor Geer was hired by the surviving members of the Alday family to aid in the prosecution of the four suspects. A similar article on page 5A of the September 22 edition of The Albany Herald was headlined “Second Alday Slay Defense Hearing Slated in Seminole.” The article described how hearings on motions filed in Coleman’s case were scheduled to be heard the same day as those previously filed in Carl Isaacs’ case. According to the article, Lambert filed a motion to disqualify the trial judge “because he did not want his client to charge him with overlooking the relationship between the judge and the special prosecutor if convicted in the slayings.”
Finally, the headline in a front-page article in the September 27 edition of The Albany Herald read “Judge Won’t Step Down in Alday Slaying Trials.” The article described how the trial judge refused to disqualify himself due to his relationship to special prosecutor Geer. As with the earlier articles, this article stated that attorney Lambert filed the motion “mainly to protect himself from any future criticism.”
An article in the September 28 Albany Herald was headlined “Judge Geer Delays Alday Slay Case Trial Venue Change Ruling.” The page 9 article indicated that the trial judge would delay ruling on defense attorneys’ motions for change of venue. The article summarized the arguments at the change of venue hearing and contained no prejudicial information.
An article in the September 30 edition of The Albany Herald contained the headline “Alday Ruling Expected Monday on Defense Motions.” The article on page 6A focused primarily on procedural matters, but also repeated the facts of the crimes and noted that the four suspects “became the targets of a nationwide manhunt within hours after the [victims’] bodies were discovered,” and that law enforcement officials “identified the four as suspects from fingerprints found in a car abandoned near Mrs. Alday’s body.” Similarly, an October 2 article dealt with procedural matters, although it did refer to Coleman and the other suspects as escapees from a Maryland prison.
A front-page article in the October 5 edition of The Albany Herald was headlined “Alday Slay Trial Delay Predicted.” Although the article focused on procedural matters, it also indicated that Carl Isaacs’ attorneys had been reprimanded for “trifling” with the court by requesting that the trial be moved outside Georgia.
An article in the October 7 edition of The Albany Herald was headlined “No Trial Date in Alday Case.” The page 14A article briefly noted that Seminole Superior Court was set to convene on Monday but that there had been no indication that the trial of the four suspects would commence on that day. The article contained no prejudicial information.
The headline in a front-page article in the October 10 edition of The Albany Herald read “Judge Nixes Venue Change for Alday Slay Defendants.” The article described how the trial judge denied defense attorneys’ motions for a change of venue. The article told how special prosecutor Geer had argued that “pretrial publicity does not constitute grounds for a change of venue according to two federal court rulings.” The article also noted that the trial judge overruled a second motion by defense attorneys for Carl Isaacs to delay the trial at least 18 months in order that the effects of publicity might dissipate. Generally, the article merely described procedural maneuverings in the case, except for a brief repetition of the facts of the crime including the fact that Mary’s body was found nude.
An article in the November 29 edition of The Albany Herald was headlined “Alday Slay Suspect Hearing Cancelled.” The article began by noting that a hearing on defense motions to exclude certain evidence in the case had been cancelled after special prosecutor Geer agreed not to enter the disputed material into evidence. Geer was quoted as stating that “I didn’t really need the letter anyway.” The article again recounted that the elder Isaacs, Coleman, and Dungee were escapees from a Maryland prison and that all three also faced murder charges in Pennylvania.
An article in the December 5 edition of The Albany Herald contained the headline “Slain Husband, Sons ‘Did Everything Together.’ ” Portions of the article read as follows:
Mrs. Ned Alday walked down the dirt path from the house her husband had constructed in 1945.
She stopped, wiping tears from her eyes, looking as lonesome as any woman has ever looked.
The auctioneer was about to begin bidding for farm machinery her sons had accumulated. In the end, the sale would net more than $33,000, but Mrs. Alday wouldn’t get the money.
A daughter-in-law, B.A., had requested the auction.
“They worked all their lives for this,” she said, wiping her eyes.
“They did everything together,” she said, speaking of Ned and her sons. “They joined the church together, they were baptized together, they were ordained as deacons together and they died together.”
She talked about their last night alive.
“We never dreamed someone was going to come along and try to kill everybody,” she said. “Somebody comes along who does not like to work and tries to take everything away from us.”
In a front-page article in the Saturday December 22 edition of The Albany Herald, the headline read “Youth in Alday Slay Case Gets 40-Year Prison Term, State Sets Aside Murder Charges.” Under the headline was a picture of Billy. The first sentence of the article stated that “Billy Wayne Isaacs, 16, late Friday admitted his involvement in the Seminole County Alday slay case and now faces a 40-year prison sentence.” The article described how the youth received the sentence upon entry of a guilty plea to charges of armed robbery and burglary. The article further indicated that murder charges against Billy Isaacs were dropped and stated that “Court sources said the youngster may be one of the prosecution’s key witnesses when the murder trials begin Dec. 31.” “Court officials said the youth had issued a statement describing the slayings in detail.” The article also stated that the “elder Isaacs, Coleman and Dungee were escapees from a minimum security Maryland prison when the murders occurred.” The article continued, noting that petitioner Coleman had also been charged in the slaying of Pennsylvania youth Richard Miller.
A front-page headline in the December 23 edition of The Albany Herald stated “Billy Isaacs Expected to Be Key State Witness in Alday Slay Trial.” The first sentence of the article noted that the young Isaacs was “expected to be a key witness for the prosecution against his brothers and a third companion whose trials are scheduled to begin Dec. 31.” According to the article, “[y]oung Isaacs ... could well be the only eye witness to the crime available to the prosecution.” The article further stated that “[although attorneys for the prosecution said they can present a strong case based on circumstantial evidence they could produce no eyewitnesses to the slayings.” The article continued, noting that “Isaacs has also reportedly issued a statement to lawmen describing the slayings of ... [the victims].” The article also stated that Carl Isaacs, George Dungee, and petitioner Coleman “were arrested in West Virginia following a robbery attempt in neighboring Virginia.” According to the article, “Coleman has also admitted the slaying of a nineteen-year old Pennsylvania youth, Richard Miller.”
The headline in an accompanying article on page 11A of the December 23 edition of The Albany Herald read “Alday Slay Figure’s Mother Recalls Days of Nomadic Boyhood.” In the article, Isaacs’ mother, Mrs. B.I., recounted how the family had moved from one place to another during Billy Isaacs’ childhood. The article contained some favorable, humanizing information about Billy and noted that Billy Isaacs “is reported by Maryland authorities to have a less extensive record than his brother, Carl, and half-brother, Wayne Coleman, charged in the Alday slayings.” The article stated that Billy Isaacs was resting at his mother’s home “when his brothers and a black companion picked him up and began their crime spree.” According to the article, Maryland authorities were reluctant to discuss Billy Isaacs because of the “disappointment and embarassment that the state could have severely misjudged the 15-year old.” In the article, one Maryland official stated, “Don’t ask me anything else. I don’t want anybody saying I messed this up. You know how law is.”
In another article in the December 23 edition of The Albany Herald, the page 9D headline read “Ice Storm, Alday Slayings Head Georgia’s Top Stories of Year.” According to the article, “[t]he brutal murder of a South Georgia farm family was selected as the No. 2 story of the year.”
A subsequent article in the December 27 edition of The Albany Herald was headlined “Alday Slay Suspect Faces Arraignment.” The article on page 8A told how petitioner Coleman was the only one of the three remaining defendants to request an arraignment. The article also indicated that Billy Isaacs “is expected to be called as one of the prosecuting key witnesses against his companions.” The article stated that murder charges were filed against Coleman in Pennsylvania “after Coleman told agents of the Federal Bureau of Investigation and other law enforcement officers the [Pennsylvania] youth was killed when he attempted to interfere in the theft of a pickup truck.” The article concluded by noting that Coleman, Isaacs, and Dungee “are charged with killing the Pennsylvania youth shortly after escaping from a Maryland prison.”
On Sunday December 30, 1973, the day before Carl Isaacs was to go on trial, pictures of Carl Isaacs, George Dungee, and Wayne Coleman all appeared on the top of the front page of the The Albany Herald. The caption accompanying petitioner Coleman’s photograph stated: “Wayne Coleman, Pennsylvania Slaying.” The front-page headline in The Albany Herald read “ ‘Going to Be One Hell of a Court Session.’ Alday Slay Trials. Begin Monday.” The first sentence of the article stated that “[o]ne of Georgia’s most widely-publicized murder trials is to begin here Monday.” One official was quoted as predicting that “[fit’s going to be one hell of a court session.” In the article, a special assistant to Governor Jimmy Carter described the slayings as “the worst crime in Georgia history.” The article then named the defendants as facing possible death sentences and noted that they were escapees from a Maryland prison. The article then indicated that the first clues in the case came from fingerprints found inside the mobile home which “led to the identification of the four men believed involved.” According to the article, “[fingerprints both inside the mobile home and those found in an abandoned car near Mrs. Alday’s body were identified as those belonging to the four Maryland men by the Federal Bureau of Investigation.” The article also told how an armed robbery at a small country store in Virginia and the ensuing highspeed chase “led to the apprehension of the four.” The article also recounted how Coleman was taken to Pennsylvania “to aid in the search for a nineteen-year-old youth he reportedly said was killed while attempting to stop the escapees.” The article also indicated that although rumors of mob action were heard in Southwest Georgia shortly after the four were returned, no overt threats were ever made.
In the December 31 edition of The Albany Herald a front-page headline read “Alday Slay Trial Jury Selection Process Begins.” The article indicated that the jury selection process in Carl Isaacs’ case had begun and described the restrictions placed upon the press by the trial judge. Other than reciting the facts of the crimes and noting that Carl Isaacs, Dungee and petitioner Coleman were escapees from a Maryland prison, the article referred only to procedural matters.
A headline with picture on the front page of the January 1 edition of The Albany Herald read “Widow’s Ordeal Ending?” The article began by describing how surviving members of the victims’ family, who sat on the third row of the Seminole County courthouse, “[had] been waiting seven months to find out what happened in the house trailer on the afternoon of May 14.” According to the article, the prosecution announced it would put an eyewitness to the crimes on the stand. The article then described the composition of the prosecution team and noted that Mr. Alto Lee, “offered his services as a special prosecutor because of his close relationship to the family in the past.” Newsmen were quoted in the article as asking “[w]hy so many big guns for such an airtight case?” Special prosecutor Geer responded by stating that he thought the “case is much more important than most people realize.” According to the article, Geer was “talking about the case becoming a test of a state law enacted last March that reimposes capital punishment in Georgia and is applicable in the case of the Alday slay suspects.”
Another front-page article in the January 1 edition of The Albany Herald was headlined “Brother of 2 Victims Leads Off Testimony. Found Aldays’ Bodies.” The article described how a surviving member of the Alday family who found the victims’ bodies led off testimony in Carl Isaacs’ trial. This article also noted that special prosecutor Geer stated that he expects to introduce an eyewitness in the case. The article then explained that the eyewitness “would be Billy Isaacs, 16-year-old brother of Carl, who already has pleaded guilty to burglary and robbery charges.” The article reminded readers that Geer was retained by the surviving members of the Alday family to act as a special prosecutor in the case. The article also described how the trial judge had taken special precautions to insure that potential jurors in the remaining two cases did not attend Carl Isaacs’ trial.
The headline in a third front-page article in the January 1 edition of The Albany Herald, read “Seminole Family Slayings Top Sowega Headliner.” The article briefly recounted how the slaying of the Alday family was the area’s top story of the year.
The January 2 edition of The Albany Herald contained a front-page headline, with pictures of the attorneys for both the prosecution and defense, which read “They Killed Alday Family, Younger Isaacs Tells Court, Billy Relates Travels.” The first sentence of the article described how Billy Isaacs testified that “his older brother Carl and two other men methodically shot to death all five male members of the Alday family as they came into a mobile home.” According to the article, Billy Isaacs “also testified about the rape and slaying of Mrs. Mary Alday, the sixth member of the prominent Seminole County farm family the four suspects have been accused of killing last May.” The article also noted that Dungee and Coleman were charged along with Isaacs and indicated that all three were escapees from a Maryland prison. The article then recounted all the details of Billy Isaacs’ testimony. The article indicated that Carl Isaacs and Coleman had killed the first two victims, that Dungee had killed Mary, and included a description of Billy’s account of how Carl Isaacs came out of one of the bedrooms laughing after killing one of the victims and proclaimed, “[t]hat damned bastard begged for mercy.” The article also related Billy’s description of how Mrs. Mary Alday was repeatedly raped before she was shot to death. The article also spoke of the ballistics and fingerprint evidence presented at Carl Isaacs’ trial. The article also summarized other testimony presented in the state’s case against Carl Isaacs.
A headline on the front page of the January 3 edition of The Albany Herald stated “Seminole County Jurors Find Accused Mass Murderer Guilty,” and was accompanied by a picture of an Alday family member and another picture of several jurors. The article described how the jury came back with a verdict of guilty and had retired to deliberate on the sentence. The article also told how attorneys for petitioner Coleman moved the court to suppress the jury’s verdict in Isaacs’ trial until the other two trials were conducted to prevent the verdict from influencing future juries. The article noted that the trial judge’s overruling of the motion was “apparently based on a Georgia law which requires court procedures to be held in ‘public and open court.’ ” The article also told readers how Billy Isaacs had “told a horror tale beginning when his brothers picked him up at a residence in Baltimore County, Md., where they began their crime spree, though the Alday slayings and on to their capture in West Virginia.” The article again quoted Billy Isaacs’ testimony in which he stated that Carl Isaacs went into the bedroom and shot one of the victims and “came out laughing, and Carl said to me, ‘[tjhat damn bastard begged for mercy.’ ” The article noted that the Alday women and others in the courtroom wept openly.
Another article on top of the front page of the January 3 edition of The Albany Herald was headlined “Billy Had ‘An Urge’ to Be With His Brothers.” The article was accompanied by pictures of Billy and Carl Isaacs. The first sentence in the article described how “two half brothers and a black companion slipped from the window of the minimum security prison on the Eastern Shore of Maryland and managed to arrive at the brothers’ Baltimore County home before lunch the next day.” The article also recounted how the suspects “stole a car and drove into Pennsylvania, to an area where they once had lived.” According to the article, once in Pennsylvania, petitioner Coleman killed Pennsylvania youth Richard Miller “if his alleged confession is to be believed.” The article described Miller as “a country boy, a young man who would have graduated from a small high school in three days.” The article then noted that the four suspects fled south, “robbing stores along the way.” The article also detailed the events of the last days of the victims’ lives. The concluding portion of the article quoted a “community leader” as follows:
We have witnessed one of the worst crimes in this section of the country, and had I had to speculate before this happened, I would have said our people would have taken the law into their own hands. I would have been wrong. There are a few rhetorical bullies here and there, but they wind up only crying for our friends. This has overwhelmed us. We are yet to be convinced that it happened.
In the January 4 edition of The Albany Herald, headlines read “Isaacs Sentenced to Die; Lawyers Planning Appeal, Execution Date of Feb. 15 Ordered.” The front-page article began by noting that Carl Isaacs had been found guilty and sentenced to death. The article noted that the four suspects “were originally charged with the murders following an interstate crime spree that ended when they were arrested in West Virginia.” The article described Billy Isaacs as “the most damaging prosecution witness in his older brother’s trial.” In the article, the wife of one of the victims expressed her approval of the death sentence and stated that the suspects “deserved more.” Another family member was quoted as saying “So far, so good. Ask me later,” which the article indicated referred to the upcoming trials.
Another front page article in the January 4 edition of The Albany Herald was headlined “Carl Just Looked at Jury. ‘Been Good to Know You.’ ” Over the article was a picture of Carl Isaacs, captioned in part: “Showed little emotion.” The article stated that the death sentence did not seem to bother Isaacs, and that he had shown little emotion throughout the trial. The article described how Carl Isaacs’ attorneys planned to appeal the verdict and sentence. The article also told how other inmates in the prison sang “So long, it’s been good to know you ...”
In the Sunday January 6 edition of The Albany Herald, a front-page headline read “Dungee Next to Face Jury in Seminole Alday Deaths.” The article began by reporting that George Dungee was the next of the suspects expected to go to trial. The article also noted that Carl Isaacs had been found guilty and sentenced to death the previous week. Speaking of Carl Isaacs’ trial, the article stated that “the high point in the trial came when sixteen-year-old Billy Isaacs took the stand describing in chilling detail the murders of the Alday family.” The article told how Billy Isaacs had “described an eastern seaboard crime spree through Maryland, Pennsylvania, West Virginia, North Carolina, South Carolina, Georgia, and Florida.” The article also indicated that petitioner Coleman “is charged with the murder of a nineteen-year-old Pennsylvania youth who reportedly attempted to stop the four suspects when he saw them stealing a pickup truck.” According to the article, which was published on the day before Dungee’s trial was to begin, Billy Isaacs “pointed to Dungee as the man who murdered Mary Alday in a wooded area about six miles north of the mobile home.” In the concluding paragraph of the article, court officials were reported as having stated that the evidence to be presented against Dungee was “almost identical” to that in Carl Isaacs’ trial.
A front-page headline in the January 7 edition of The Albany Herald read “Selection of Dungee Jury Begins in Slay Trial Today.” The article began by noting that jury selection in George Dungee’s trial was set to begin that day. This article also described Billy Isaacs’ testimony the previous week as “the most damaging testimony” presented against his brother, Carl Isaacs. The article described Billy Isaacs’ testimony as painting a “chilling picture” of the slayings. According to the article, Billy Isaacs “told of seeing Mary Alday raped inside the trailer and later in a wooded area some miles away where her body was found.” The article stated that “[s]he was shot to death by Dungee.” The concluding portion of the article reminded readers that “[t]he elder Isaacs, Dungee and Coleman are all escapees from a Maryland prison farm.”
Another article in the January 7 edition of The Albany Herald was headlined “Mother Says Her Sons ‘Deserve Punishment.’ ” The article told how Mrs. B.I. has “little sympathy left for her sons and hasn’t bothered to answer their letters since they were jailed in Georgia.” Mrs. I. was quoted as stating that her sons “deserve whatever punishment they receive,” and that they “had no right to hurt those people down there.” According to the article, Billy Isaacs’ testimony “pictured Carl as a merciless killer in his eyewitness description of the killings.” The article also stated that Billy’s testimony “also implicated his and Carl’s half-brother, Wayne Coleman, 26, and George Dungee, 35.” This article also reminded readers that Carl Isaacs, Wayne Coleman, and George Dungee were escapees from a Maryland prison.
The January 8 edition of The Albany Herald contained a front-page headline “Prosecution to Offer ‘Confession’ of Dungee,” and was accompanied by a picture of several jurors leaving the courthouse. The article described how special prosecutor Geer planned to introduce a confession by George Dungee in his trial. The article also noted that defense attorneys planned to object to the introduction of the confession. This article indicated that Billy Isaacs’ “chilling testimony was instrumental in the guilty verdict and death sentence given his 19-year-old brother Carl Isaacs at the conclusion of a sensational trial last week.” The article indicated that Billy Isaacs was also expected to testify for the prosecution in George Dungee’s trial. Finally, the article noted that petitioner Coleman was still awaiting trial and that he “has also been implicated in the slaying of a 19-year-old Pennsylvania youth, Richard Miller.”
The front-page headline in the January 9 edition of The Albany Herald read “Dungee Found Guilty of Six Murder Counts.” The article was accompanied by a picture of E.A., and another picture of Dungee. The article began by noting that George Dungee had also been found guilty and sentenced to death. The article referred to the special prosecutor’s closing argument in which he waved “Mary Alday’s turquoise pantsuit and bra, which were found near her nude body.” According to the article, Billy Isaacs “told the Dungee jury the same harrowing eyewitness account of the murders he related last week in his brother’s trial.” After Mary Alday was raped by Carl Isaacs and Coleman in the kitchen, and when she was taken into the woods, Dungee asked, “What about me?” The article then quoted Billy Isaacs’ testimony stating that Dungee “took her into the woods, shot her twice and was getting ready to shoot her a third time,” when the others stated, “That’s enough.”
In the January 10 edition of The Albany Herald, a front-page headline read “Coleman Goes on Trial Monday.” The article described how Carl Coleman and George Dungee had already been found guilty and sentenced to death. The article again noted that Billy Isaacs “was the state’s most damaging witness.”
In another front-page article in the January 10 edition of The Albany Herald, an attorney for George Dungee discussed his personal opposition to capital punishment— “it is not good for society” — and stated that his closing argument during the sentencing phase was easier because of his opposition to the death penalty. The article contained a full summary of the attorney’s argument opposing capital punishment, based on religious and historical grounds.
In the January 10 issue, at page 6A, there was an article based on an interview with Dungee’s mother, after she learned of his scheduled execution, which was favorable to Dungee, tending to humanize him.
A front-page headline in the Sunday January 13 edition of The Albany Herald read “Difficult Task Foreseen Picking Last Murder Jury.” The article appeared below a picture of Coleman peering from behind bars. The article began by noting that petitioner Coleman’s trial was set to begin the next day and stated that attorneys expected jury selection to be a difficult task. This article also noted Billy Isaacs’ testimony in the previous trials and stated that the “younger Isaacs said that Coleman and Isaacs killed Ned, 62; his three sons, Jerry, 35, Chester, 32, and Jimmy, 25; and his brother, Aubrey, 57, at the trailer.”
The Dothan Eagle also published numerous reports about the Alday case; it had a daily circulation of 315 in Seminole County.
In the May 15 edition of The Dothan Eagle, front-page headlines read “6 Members of Alday Family Slain in Seminole County. Five Men, Woman Shot ‘Face Down.’ ” The article described how the six members of the Alday family were systematically executed the previous day.
The May 16 edition of The Dothan Eagle contained the front-page headline “Four Being Sought in Grisly Slayings Near Donalsonville. 3 Believed Maryland Escapees.” The article began by noting that three of the four suspects in the killings were escapees from a Maryland prison. One escapee was quoted as stating that he would “kill any policeman who tries to stop us for any reason.” The article noted the possibility that Pennsylvania youth Richard Miller was the seventh victim of the killers. The article also indicated that at the time of his escape, Carl Isaacs was serving a four-year sentence for breaking and entering and robbery, that Coleman was serving a ten-year sentence for armed robbery, and Dungee an eighteen-month sentence for contempt of court. The suspects’ mug shots accompanied the front page article. The article also quoted William Beardsley, Director of the Georgia Department of Investigation, as stating that circumstantial evidence against the four suspects was “overpowering,” and that “[tjhere’s no point in looking for anybody else.”
A front-page headline in the May 17 edition of The Dothan Eagle read “Mrs. Alday’s Car Found in Alabama; Manhunt Goes On.” The article was accompanied by a photograph of Carl Isaacs which was captioned “Carl Isaacs. Fingerprints Found____” The article reported that Mrs. Mary Alday’s automobile had been found in Livingston, Alabama. The article also indicated that a fingerprint found at the scene of the crime had been identified as belonging to Carl Isaacs and identified Isaacs as an escapee from a Maryland prison. Georgia Department of Investigation Director William Beardsley was quoted as stating that “[tjhis confirms our feeling on the subject.” The article then repeated Beardsley’s quote from the previous day stating that circumstantial evidence against the four was “overpowering,” and that “[tjhere’s no point in looking for anybody else.” The article also noted that Mrs. Mary Alday had been raped and tortured before she was shot to death in the back of the head.
The May 18 edition of The Dothan Eagle contained the front-page headline “4 Sought in Alday Slayings Caught. Trio Found Asleep, One Nabbed Earlier.” The article indicated that the four suspects were captured when police put up “a roadblock to stop four men who robbed a grocery store across the border in Virginia.” According to the article, Sheriff White said the four would not be jailed in Seminole County “because of ill feeling among the residents of the rural community.” The article quoted Sheriff White as stating:
They will be jailed outside of Seminole County. I have an obligation to protect everybody. I want them brought to court. I want them brought to justice.
The article concluded by noting that the suspects were escapees from a Maryland prison and also stated that police expected to question the four in connection with the disappearance of Pennsylvania youth Richard Miller. Another front page article described the funeral for the victims which had taken place the previous day.
A front-page headline in the May 20 edition of The Dothan Eagle read “Alday Slayers Have Appointment with Justice.” The article began by noting that the “coldblooded trial of a quartet of confessed killers leads to Seminole County again tomorrow, one week after the bullet-riddled bodies of six Alday family members were left in the South Georgia county.” The article described how on the previous Monday the killers “probably saw Mary Alday open the trunk of her 1970 blue and white Chevrolet Impala automobile to let a bag boy put a couple sacks of groceries in for her.” The article then stated, “[t]hey [the suspects] must have liked the looks of the car. They liked the looks of its driver.” The article described how authorities found Pennsylvania youth Richard Miller’s automobile near the body of Mary Alday and subsequently found some of Miller’s personal effects in the trunk of Ms. Alday’s stolen car, which was located in Livingston, Alabama. According to the article, this led officials to “presum[e] there must also be a victim No. 7.” According to the article, the four suspects got as far north as Slate Creek, Virginia, where “they gave out of money” and “found an easy mark — a Slate Creek grocery store — and robbed it of about $3000 and several guns.” The article further stated that “Coleman, under questioning by the FBI at Bluefield, admitted killing the 19-year-old McConnellsburg youth.” The article then stated:
The admission confirmed authorities’ worst fears. Miller was dead.
Other victims? Ms. Mary Aldays’ mother had died several hours earlier in a Colquitt, Ga., hospital after suffering a heart attack.
Pennsylvania authorities want to question them [the suspects] concerning the death of Mrs. Anne Elder, fifty-eight, of Stewartstown, Pa., last January. Police said that a short time before her death she had befriended Carl and William Isaacs when their car broke down near her home.
This, authorities say, could bring the number of victims to eight, or nine if Mrs. Alday’s mother is counted.
A front-page headline in the May 21 edition of The Dothan Eagle read “Alday Massacre. Accused Facing Six Counts Each.” The article began by indicating that each of the suspects was charged with six counts of murder. The article also stated that during their arraignment, “Coleman agreed to carry authorities to a spot near Hagerstown, Md., and show them the body of a seventh victim.”
The May 22 edition of The Dothan Eagle contained the front-page pictures of Coleman and Dungee and a headline “Alday Massacre Four Wait; One Helps Hunt Seventh Body.” The article began by noting that Coleman had been taken to Pennsylvania to assist in the search for a Pennsylvania youth, Richard Miller. According to the article, “Coleman, who is said to be the ring leader, reportedly has admitted shooting 19-year-old Richard Wayne Miller of McConnellsburg.” The article then described the committal hearings held for the four and stated that petitioner Coleman “seemed to smirk and smile when the district attorney asked if he understood each of the charges against him.” The article also noted that Peter Zack Geer, former Lieutenant Governor of Georgia, would assist in the prosecution of the case. According to special prosecutor Geer, he had represented the Aldays on numerous occasions and had hunted and fished with two of the victims.
The May 23 edition of The Dothan Eagle contained a front-page article entitled “New Link Forged in Alday Massacre.” The article reported that “Authorities in McFarlan, N.C., told Seminole County Sheriff Dan White the four men charged with the slayings robbed a grocery store near there the Wednesday before the Aldays were killed.” The article also described how Coleman had been taken to Pennsylvania to assist in the search for the body of Richard Miller. According to the article, the “FBI said Coleman ... told agents of Miller’s death.”
A front-page article in the May 24 edition of The Dothan Eagle was headlined “Alday Killers Could Get Electric Chair in Georgia.” The article began by noting that if convicted, the four suspects in the Alday case could face the death penalty. The article then described how three of the four suspects were escapees from a Maryland prison. The article then listed the ten aggravating circumstances which, under the Georgia statute, might justify the imposition of the death penalty.
In the May 25 edition of The Dothan Eagle front page headlines read “The Alday Case. Webb Appointed But Desires ‘Off.’ ” In the article, Webb articulated two reasons for his desire to be excused from the appointment. According to Webb, his sponsorship of the state’s new death penalty law would preclude him from challenging it during the trials. Speaking of the possibility of his defending one of the accused, Webb stated “I believe I can’t in good conscience — personally and professionally — because those people were neighbors and personal friends of mine.” Another attorney, speaking of his appointment, stated “I’ve objected. I objected at the time Judge Geer called me. But as far as I’m concerned, I’ve been appointed. I will give him the very best that I have. I have that ethical and legal obligation.” The article also quoted Attorney J. Willis Conger as stating:
I’d like very much to be relieved. I don’t know of any lawyer in Georgia who would want that case. I don’t know of anybody who would want it.
I feel the feeling in Seminole County and this part of Georgia is such that I don’t want it. It’s not the kind of case I want to get involved in. Right now, I plan to ask to be relieved.
A front-page headline in the June 4 edition of The Dothan Eagle read “Alday Case. Body of Youth Found in Maryland.” The first sentence of the article stated that “[t]he body of Richard Wayne Miller, 19-year-old McConnellsburg, Pa., youth whose disappearance May 10 had been traced to four men charged with the massacre of six members of the Ned Alday family, was found yesterday about eight miles south of Flintstone, Md.” The article described petitioner Coleman as “another of the suspected Alday slayers who FBI spokesman said has admitted killing Miller.” The article concluded by naming the four suspects and noting the fact that three of the four were escapees from a Maryland prison.
An article in the June 14 edition of The Dothan Eagle was headlined “Alday Case Seen as Death Law Test.” The article began by noting that the Alday case “may become a test case for Georgia’s new capital punishment law.” Carl Isaacs’ attorney, Bobby Hill, was quoted as stating that “[i]t is the kind of murder case that the legislature obviously intended for the new death penalty to be applied in.” Hill and Farrington were further quoted as stating that one of the reasons they volunteered was because “there was just nobody who was willing to give them the kind of defense they are entitled to under our system of law.” A concluding paragraph in the article noted that three of the defendants escaped from a Maryland prison farm just before the slayings.
A front-page article in the July 6 edition of The Dothan Eagle was headlined “Closed Hearing Plea Made in Alday Case.” Except for a brief recapitulation of the facts of the crime, the article merely described procedural maneuverings in the case. A similar front page article appeared in the July 19 edition of The Dothan Eagle although this article did note that each of the victims was shot in the back of the head, and that Mrs. Mary Alday had been raped.
Another front-page article in the July 22 edition of The Dothan Eagle was captioned “Isaacs to Await Grand Jury Action.” The article began by noting that defendant Carl Isaacs was bound over for action to the Seminole County Grand Jury. The article was primarily a factual account of the proceedings surrounding Isaacs’ committal hearing although the article did state that “[i]n addition to the six charges against the Isaacs, Coleman and Dungee, they are charged with the death of Richard Wayne Miller, 19, of McConnellsburg, Penn., whose car was found near the body of Mrs. Mary Alday.”
A front-page article in the August 8 edition of The Dothan Eagle was captioned “3 Have Hearings in Alday Massacre.” The article was a factual account of the committal hearings for the three remaining suspects and contained no prejudicial information. A similar article appeared on the August 9 front page.
A front-page article which appeared in the September 4 edition of The Dothan Eagle was headlined “Grand Jury Studying Alday Case.” The article reported that the Seminole County Grand Jury was meeting to consider murder charges against the four suspects. The article named the four suspects and stated that three of the four were Maryland prison escapees. The article also stated that the “FBI said Coleman has also admitted killing Richard Wayne Miller, a 19-year-old high school senior from Pennsylvania.”
In the September 18 edition of The Dothan Eagle the headline for an article read “Change of Venue Asked For Isaacs.” The article briefly told how attorneys for defendant Carl Isaacs requested a change of venue for the upcoming trial. The article contained no prejudicial information other than extensive quotations from the previously referred to letter from the trial judge to the attorneys cautioning them not to “trifle with the court.” A similar article captioned “Venue Change For Isaacs Is Sought,” appeared in the September 26 edition of The Dothan Eagle but contained no prejudicial information. The same is also true of a September 27 article which appeared on the front page of The Dothan Eagle which was captioned “Alday Case Judge Stays on Bench.”
A front-page article in the September 28 edition of The Dothan Eagle was headlined “Court Studying Change of Venue.” The article gave a brief summary of the arguments presented at the change of venue hearing. The article also recounted how defense attorneys sought discovery of all favorable evidence held by the prosecution. According to the article, special prosecutor Geer stated that he had no objections to surrendering the favorable evidence but he was quoted as stating that “I must say that it ain’t much.”
In May of 1973, The Atlanta Journal had a daily circulation of 106 in Seminole County. The daily circulation of The Atlanta Constitution in Seminole County was 178, with the Sunday paper circulation being 563.
The May 15 edition of The Atlanta Journal contained an article captioned “Killers Strike at Mobile Home.” The article was primarily a factual account of the scene of the crime.
An article which appeared on page 1A of the May 16 edition of The Atlanta Constitution was headlined “Slayings Leave Town in Shock.” The first sentence of the article quoted a local resident as stating, “Six Murders in Donalsonville Ga. That’s something that happens in California, not a little town like this. It’s unbelievable!” The article went on to describe how local residents held members of the Alday family in high esteem. However, the article contained no prejudicial information concerning the defendants.
In an article which appeared on the front page of the May 16 edition of The Atlanta Journal, a local resident “summed up the feelings” of the residents of Seminole County when he stated: “I feel sorry for them fellows if they get caught around here, I don’t think they’ll make it to jail.” According to the article, “[fjeeling in the shocked community tended towards the theory that outsiders, like the three convicts who are suspected, must have done the killing.” One woman was quoted as stating, “[tjhey’re like animals. No one around here would even want to do something like that.”
Another article which appeared on the front page of the May 16 edition of The Atlanta Journal was headlined “Few Slayings in Georgia Out-Total Seminole’s Six.” The article began by noting that the slaying of the Alday family members was Georgia’s second largest mass murder. The article then described other mass murders which had taken place in the past within Georgia.
In an article which appeared on page 1A of the May 16 edition of The Atlanta Constitution, Dr. Larry Howard, director of the state crime lab, was quoted as stating that the Alday murders were the “biggest deliberately planned homicide in Georgia.” The article then noted that three of the four suspects were escapees from a Maryland prison.
An article which appeared on page 1A of the May 17 edition of The Atlanta Journal described how Mrs. Mary Alday’s automobile had been found in Livingston, Alabama. The article stated that three escapees from a Maryland work camp and the brother of one of the escapees were “prime suspects” in the mass slaying. The article also stated that a “fingerprint found on a window of an abandoned car near the raped and shot body of Mrs. Alday has positively been identified as belonging to Carl Isaacs, one of the hunted suspects.” The article also implied that the four might be involved with the disappearance of a Pennsylvania youth, Richard W. Miller. In the article, Gil Kelley, radio station owner and a member of the Seminole County Grand Jury, stated that “[i]f a report came now that these men were holed up in a wooded area, I don’t think any of them would get out alive.” Nonetheless, Kelley maintained that if the four were captured, they would receive a fair trial in Donalsonville. Sheriff Dan White, referring to the gruesome manner in which Mrs. Alday was killed, stated that the killers were “animals and should be treated as such,” and were “lower than a dog.” Sheriff White asked, “[C]an you name me any animal that doesn’t protect its females?” Sheriff White further stated:
If I had my way about it, I would have me a large oven and I’d pre-cook them several days, just keep them alive and let them punish. And I don’t think that would satisfy me.
It’s not my job to prejudge the case, let's leave it to the court and the jury do that.
An accompanying article appeared in the May 17 edition of The Atlanta Journal and quoted Ms. B.I. as stating “Respect is what my sons lacked. They had none for their family and those people in Georgia and how can they expect any from us?”
A front-page headline of the May 18 edition of The Atlanta Journal read “Grieving Donalsonville Relieved by Captures.” The article began by describing the sense of relief felt by the citizens of Donalsonville upon learning of the capture of the four suspects. Gil Kelley, a radio station owner and a member of the county grand jury, was quoted as stating that the “killers should be put away from society” because “[w]ith a death sentence there would be so many appeals it could be watered down, and they might get out in seven years. We don’t want that.” However, T.A., a son of E.A., expressed his desire for a harsher penalty and stated, “I think the killers ought to be killed.” When asked whether a fair trial was possible in Seminole County, Mr. Alday said, “[tjhey’ll get a fair trial but they don’t deserve it for what they done.” The article concluded with a quotation from Sheriff White on the possibility of trial taking place elsewhere. He stated:
There’s blood boiling all over the nation about this. You name me a state where if they [the captured suspects] broke loose, people wouldn’t want to hurt them.
There’s no other place for it [the trial] to be held except in Seminole County.
An article on page 1A of the May 18 edition of The Atlanta Constitution described the manhunt in the West Virginia mountains for three of the fugitives. The article told how George Dungee had been apprehended the previous evening. The article then described the manhunt which was taking place for the remaining fugitives. Seminole County Sheriff Dan White was quoted as stating that “[t]hey [the suspects] were running, just like I figured. They’re too cowardly to fight.” The article also quoted Mrs. B.I. as stating that her sons were “old enough to know right from wrong and deserve what they get when captured.” The article also indicated that the four were suspected in the murder of a Pennsylvania youth.
Another front-page article in the May 18 edition of The Atlanta Constitution described the funeral which was held for the six victims. According to the article, the funeral was the biggest in Seminole County history. The article also indicated that dignitaries attending the funeral included Mrs. Lillian Carter, mother of Governor Jimmy Carter; State Agriculture Commissioner Tommy Irwin; Department of Transportation Chairman Hugh Broome; State Senator Julian Webb; and Cloyd Hall, a special assistant to Governor Carter. The article specifically noted, however, that none of the ministers speaking at the funeral called for revenge for the murders.
Another article which appeared in the May 18 edition of The Atlanta Journal reported how Maryland prison authorities described the four suspects as having histories of unstable family life, repeated burglaries, excessive drinking, and frequent escape. According to the article, two of the suspects “have been involved with homosexuality.” The article described how petitioner Coleman was the only one of the four with a record of violence in the past. The article told how he was serving a ten-year sentence for armed robbery when he escaped. The article concluded by giving a detailed arrest record for each of the four suspects.
Another article which appeared in the May 18 edition of The Atlanta Journal described the arrest of the four suspects in West Virginia. The article was primarily a factual account of the suspects’ arrest.
Finally, a third article which appeared in the May 18 edition of The Atlanta Journal described the funeral for the victims. The only reference to the four suspects came when one minister prayed for God’s mercy on “everyone of these men who had anything to do with this destruction ... we hope that before they close their eyes in death they will see themselves for what they are.”
A front-page headline in the May 19 edition of The Atlanta Constitution read “Suspects in Alday Killings Brought Back to Georgia.” The article described how the three remaining suspects had been apprehended in the mountains of West Virginia and how they were brought back to Georgia. Colonel Ray Pope, Director of Public Safety, was quoted as stating that the killings were the “most horrifying crime that has ever been committed in our state.” Another Department of Investigation official stated that the “climate in Seminole County is not conducive to keeping them [the suspects] in the jail there.” Sheriff White was also quoted as stating that “[t]here’s not a doubt in my mind that lynching has crossed the mind of everybody. I’d like to try ’em in court this afternoon if I had them down there.” Nonetheless, although Sheriff White stated that “everybody’s blood is boiling,” he maintained that the suspects could still get a fair trial in Seminole County. He stated:
We believe in God. We believe in law and order. And we want the court to have a chance to show the world that we will deal out justice. All we want is to see justice done.
The article also indicated that three of the four suspects were escapees from a Maryland prison, that fingerprints of two of the suspects had “definitely been found at the scene of the crime in Seminole County,” and that “FBI agents Friday night said that, under questioning in Bluefield, W.Va., Friday, Coleman told about the death of Miller, a high school senior who has been missing since May 10.”
An article which appeared in the May 19 edition of The Atlanta Constitution was captioned “Alday Slay Suspects Awake in ‘Disbelief.’ ” The article described how West Virginia state police used a bloodhound to track the suspects in the mountains of West Virginia.
A front-page article in the May 19 edition of The Atlanta Journal contained the headline “Men Held Separately in Atlanta Area Jails.” The article began by describing how the suspects had been brought back to Georgia. In the article, FBI agents stated that Coleman confessed to killing Pennsylvania youth Richard Miller, “because I didn’t want any witnesses.” According to the article, “FBI agent Robert D. Warden of Bluefield, W.Va., described Coleman as ‘a cool customer who displayed no emotion’ as he told authorities how he dragged Miller from his car in a deserted area and pumped a bullet into him.” The article then described how the most damaging statement came from Dungee. The article noted that “while officials wouldn’t disclose the statement’s contents, there were indications Dungee named Coleman for the alleged murder of Mrs. Mary Alday.” Dungee was quoted as stating, “I didn’t kill that woman down there in Alabama. It was Coleman who did that.” The article then indicated that Dungee was simply confused about where he had been in describing the crime as taking place in Alabama. The article concluded by noting that the arrest of the four suspects came after the “four wanted men allegedly robbed a store in Slate Creek, Va.”
An article in the Sunday May 20 edition of The Atlanta Journal and Constitution contained the headline “Alday Death Suspects Move Monday to Donalsonville.” The article began by describing how authorities planned to take the four suspects to Seminole County. When asked whether the suspects would be provided sufficient security in the community, William Beardsley, Director of the Georgia Division of Investigation, stated, “I’ve seen the people in Donalsonville and heard the rumors about mob violence. I don’t believe there are those kind of people down there.” The article also discussed the disappearance of Pennsylvania youth Richard Miller, and described how petitioner Coleman reportedly told an FBI agent that Miller was killed “because I didn’t want any witnesses.” At the conclusion of the article, Coleman’s quote admitting the murder of Miller was repeated.
In another article which appeared in the May 20 edition of The Atlanta Journal and Constitution, the headline read “Aldays, Suspects Contrast. Lived in Worlds Apart.” The article simply contrasted the lifestyles of the victims with that of the four suspects. The article described the victims as “hardworking, nondrinking, and religious.” In contrast, the four suspects were described as “drifters, in and out of trouble most of their lives.” According to the article, the suspects had “a reputation for breaking the law.” The article reminded readers that three of the four suspects were escapees from a Maryland prison. The article concluded by quoting Mrs. B.I. as stating that “when they [the Isaacs-Coleman brothers] began to grow up they would just stand in front of me and laugh in my face.”
An article on page 1A of the May 21 edition of The Atlanta Journal was captioned “Suspects Hear Slay Charges.” The article began by describing the hearing in which the four suspects were informed of the charges against them. The article also indicated that former Lieutenant Governor Peter Zack Geer had been retained by the Alday family as a special prosecutor in the case. The article described Geer as an “old friend of the Alday family.” The article also described local reaction as “decidedly angry toward the suspects.” The article concluded by noting that authorities said petitioner Coleman “admitted that he shot and killed Richard W. Miller, 19, of McConnellsburg, Pa.”
A front-page article in the May 22 edition of The Atlanta Constitution was headlined “Alday Suspects are Charged.” The article described petitioner Coleman as a “frail prison escapee with a scraggly mustache and beard” and indicated that he “smirked and smiled repeatedly while asked by Dist. Atty. Ralph Foster if he understood each of the six charges against him.” The article also described how former Lieutenant Governor Peter Zack Geer, a longtime friend of the Alday family, had been retained by the family as a special prosecutor in the case. The article noted that immediately after the hearing, petitioner Coleman was taken to Pennsylvania to help in the search for the body of Richard Miller, “whom Coleman has reportedly confessed to murdering.” The article also mentioned some speculation circulating concerning possible revenge against the suspects and noted that one surviving family member stated that any such possibility would “be very much against the family will.” The article then discussed special prosecutor Peter Zack Geer and specifically noted that he was retained by the family and would be paid by the family rather than the state for his efforts in acting as special prosecutor in the case. The final paragraph of the article noted that petitioner Coleman “repeatedly smiled or smirked and sometimes seemed amused by the legal proceedings.”
An article which appeared in the May 23 edition of The Atlanta Journal was headlined “Alday Suspect Fails to Find Slain Victim.” The article described how petitioner Coleman had been “unable or unwilling” to locate the body of Pennsylvania youth Richard Miller. According to the article, “[authorities contend Coleman admitted] [killing] Miller because ‘they didn’t want any witnesses.’ ” In the concluding portion of the article, Sheriff Dan White discounted the possibility of mob violence and stated that “[t]he people of Seminole County want them brought to court and true evidence presented before a jury that will deal with them fairly.”
A similar article appeared in the May 23 edition of The Atlanta Constitution and noted that officials had had no success in their attempt to find the body of Pennsylvania youth Richard Miller. The article described how petitioner Coleman assisted authorities in looking for the body and noted that Coleman “admitted killing Miller on May 10, a few days after he and two of the other suspects escaped from the Wicomico Prison Farm on Maryland’s Eastern Shore.” The article again described how Coleman told authorities Miller was killed because they “didn’t want any witnesses.” Similar articles appeared in the May 23 edition of The Atlanta Journal and the May 24 edition of The Atlanta Constitution.
A May 24 article in The Atlanta Constitution was headlined “Sheriff Sees No Violence Over Slaying of the Aldays.” According to the article, Sheriff Dan White “bragged on the lack of violent reaction in his county.” Sheriff White stated:
My people don’t want violence, and I’m in a position to know. We’re all neighbors and we love one another. All we ask for is a fair and impartial trial with a good jury that would give justice. We can get just as fair a jury in Seminole County as any county in the nation. I don’t think that — I know it.
According to Sheriff White, the suspects were not being held in the Seminole County Jail because it is “not secure enough — and that’s the only reason.”
An article in the May 24 edition of The Atlanta Journal was headlined “Attorneys Named for Alday Suspects.” The article described how the trial judge had named two defense attorneys to represent the accused in the case. The article also described how the search for the body of Pennsylvania youth Richard Miller had been unsuccessful. The article concluded by noting that “[djespite the fruitless search, authorities are certain Miller was killed by the suspects; they contend Coleman admitted killing the Pennsylvanian.”
In the May 25 edition of The Atlanta Journal, an article was captioned “Attorneys Regret Alday Case Duty.” The article began by noting that the reactions of eight attorneys who had been appointed to represent the defendants ranged from “extreme reluctance” to “dismay.” Attorney Willis Conger was quoted as stating “I despise it, I’d rather take a whipping, but the judge appointed me and I have to do my job.” Another attorney, Harold Lambert, was quoted as stating, “Based on what I’ve heard and read, I had reservations whether I could objectively give the defendant the type of defense to which he is entitled. I’m unhappy, I wish this would pass, as they say, but it didn’t and I have a legal and ethical obligation to defend this defendant.”
The headline for a May 25 article in The Atlanta Journal read “Alday Slay Suspect Lawyers Want Out.” The article began by describing how two attorneys appointed to represent the suspects have asked to be relieved of their appointments. Attorney Harold Lambert was quoted as stating that the appointment was “the worst thing that’s ever happened to me.” Attorney Willis Conger stated, “I’ve done everything I can to get out of it. It’s worse than a dose of Colomel [a laxative] but I have to take it. To refuse would be contempt of court.” Attorney Lambert was further quoted as stating that if he was not relieved of the appointment, “because of my ethical and legal obligations to the Bar of Georgia, I will do what I have to do.”
In an article on page 6B of the May 26 edition of The Atlanta Constitution, the headline read “Alday Suspect Lawyer Declines. State Sen. Webb.” In the article, State Senator Julian Webb described how he declined to take the case because the state’s new death penalty law which he sponsored would likely be challenged and because of his close personal relationship with the victims. Webb was quoted as stating, “I believe I can’t in good conscience — personally and professionally — because those people were neighbors and personal friends of mine.” The article also told how appointed defense attorney Willis Conger also wished to be relieved of the appointment. Conger was quoted as stating, “I’d very much like to be relieved. I don’t know of any lawyer in Georgia who would want this case____ I feel the feeling in Seminole County and this part of Georgia is such that I don’t want it.”
Headlines for a front-page article in the May 29 edition of The Atlanta Constitution read “Alday Suspects. ‘Got to be Punished,’ Mother Says.” In the article, Ms. B.I. was quoted as stating that “[t]here’s no way out, they got to be punished. I’m honest about it. It’s hard, but that’s the way I feel.” The article indicated that petitioner Coleman was serving a ten-year sentence for armed robbery when he and his half brother Carl Isaacs escaped from a Maryland prison. According to the article, Coleman’s armed robbery was the only violent crime for which any of the brothers had been convicted, but all had been “moderately to heavily” involved in illegal activities before their recent escapes.
An article which was somewhat favorable to petitioner Dungee appeared in the May 30 edition of The Atlanta Constitution. The article described how Dungee had been regarded as “a safe bet for a minimum security prison.” The article generally described his background and quoted a former girlfriend as stating that “[h]e was nice.”
In an article which appeared in the May 31 edition of The Atlanta Constitution, the headline read “Police Were 15 Minutes Away From Alday Suspects.” In the article, a Maryland official described how teletypes were sent out several days before the Georgia slayings warning law enforcement officers about the fugitives. The article described how the official had persuaded a Baltimore newspaper to publish photographs of the four suspects to seek new leads on their whereabouts. The photographs, however, appeared the day after the Donalsonville murders. According to the detective, “By that time, all hell had broken loose. We were trying to alert everyone we could, but you can’t alert a whole nation. It could have been a small town anywhere.” The article described how “[a]fter their escape, the trio from Poplar Hill joined the younger Isaacs and embarked on a crime spree in suburban Baltimore County that allegedly included gun thefts and auto larcenies.” The article also noted that police said that petitioner Coleman admitted killing Pennsylvania youth Richard Miller. When asked whether petitioner Coleman showed any remorse during his search for the Pennsylvania youth’s body, a police spokesman replied, “I didn’t notice any.” The article also indicated that Carl and Billy Isaacs were under investigation for the slaying of a former Baltimore socialite who reportedly gave the Isaacs a lift last November when their ear broke down. According to the article, police “theorized the Isaacs may have linked ... [the woman] to their arrest and sought revenge.”
In a June 4 article which appeared in The Atlanta Constitution, the headline read “Police in Maryland Find Body in Slay Victim Hunt.” The article began by reporting that the body of slain youth Richard Miller had been found in Maryland. The article continued, noting that “Wayne Coleman, 26, a fugitive from a Maryland prison farm and one of four men charged with the Alday mass murder, has reportedly confessed to authorities that he and his three companions shot and killed Miller May 10 after commandeering the victim’s car near McConnellsburg.” The article again quoted Coleman’s statement in which he admitted killing Miller because “they didn’t want any witnesses.” The article concluded by noting that no one has yet been charged in Miller’s murder. A similar article appeared in the June 4 edition of The Atlanta Journal. That article noted that Miller “was slain with a gunshot wound in the back of the head, the same method used to kill the Georgia victims.” The article did not, however, mention Coleman’s alleged confession in connection with the discovery of the body.
An article which appeared in the June 4 edition of The Atlanta Constitution was captioned “Slaying of Aldays Arouses the Nation.” The first sentence in the article recounted how Seminole County Sheriff Dan White had received numerous letters and telephone calls “from angry people who want to see those boys punished.” White was also quoted as stating that some of the letters said “[g]ive them the chair.” White further noted that most of the people expressed anger over the murders and stated that “[i]t seems like people in Seminole County are not any madder than peopie all over the country.” When the possibility of a change of venue was discussed, White stated “[t]he way I feel about it is that the boys are charged with committing crimes in this county so their trials shouldn’t be held in another county.” According to White, local residents were “just waiting for the court to do its job.” The final sentence in the article noted that there had been no direct threats on the suspects’ lives.
Headlines from an article in the June 11 edition of The Atlanta Constitution read “Maryland in No Hurry for 4 Alday Suspects.” In the article, a Maryland prosecutor stated that he would wait until the October grand jury term to seek indictments against the four suspects in connection with the murder of Richard Miller because the men were already in custody in Georgia on murder charges.
A June 13 article in The Atlanta Journal was titled “Bobby Hill Joins Defense of Suspect in Alday Case.” The article indicated that attorneys Hill and Farrington had been named to replace attorneys Conger and Taylor who had asked to be dropped from the case. Speaking of the Alday murders, attorney Hill stated that the case was “certainly the kind of activity on which the legislature intended to have the death penalty imposed.” The article also noted that one of Isaacs’ previous attorneys, Conger, cited the proximity of his practice to Donalsonville and his business dealings with the Alday family as justification for his efforts to withdraw from the case.
An article which appeared in the June 14 issue of The Atlanta Constitution contained the headline “Alday Case Top Death Law Test.” In the first paragraph of the article, attorney Bobby Hill described the Alday case as a “prime test for Georgia’s new death penalty law.” Hill further stated that “[i]t is the kind of murder case that the legislature obviously intended for the new death penalty to be applied in.” Hill also noted that another reason he volunteered to defend Isaacs was because “there was just nobody who was willing to give them the kind of defense they are entitled to under our system of law.”
An article which appeared in the June 18 edition of The Atlanta Constitution was headlined “Fire Destroys Store Alday Trio Robbed.” The article briefly recounted how fire had destroyed a grocery store “where a robbery May 17 led to the capture of four men charged in the slayings of six members of a Georgia family.”
An article in the August 8 edition of The Atlanta Journal described a committal hearing for three of the four suspects. The article generally contained no prejudicial information, except the article did note that Coleman, Dungee, and Carl Isaacs were escapees from a Maryland prison. This is also true of an article headlined “Grand Jury Next in Alday Case” in the August 9 edition of The Atlanta Journal which described how three of the suspects had been bound over for action by the grand jury. A similar article appeared in the August 9 edition of The Atlanta Constitution under the headline “3 in Alday Slayings Bound Over,” but the article reported that petitioner Coleman “reportedly admitted that he shot [Pennsylvania youth] Miller” as well as noting that he, Dungee, and Carl Isaacs were escapees from a Maryland prison. An October 10 article appearing in The Atlanta Constitution entitled “Trial Set Dec. 31 in Alday Case” described how the trial judge had set trial to begin on December 31, 1973, and it also noted that three of the four men indicted by the grand jury were escapees from a Maryland prison. Other articles which reported procedural maneuverings in the case also indicated that three of the four suspects were escapees from a Maryland prison. See “Alday Slay Suspect, 16, Refused Juvenile Trial,” Atlanta Journal, Oct. 2, 1973; “Trial Shift Denied in Alday Case,” Atlanta Journal, Oct. 11, 1973; “Alday Case Trial Order Not Known,” Atlanta Journal, Dec. 19, 1973. Another article appeared in what is apparently the December 23, Sunday edition of The Atlanta Constitution and was headlined “Boy, 16, Gets 40 Years in Alday Case.” The article began by describing how Billy Isaacs received a 40-year sentence upon entry of his guilty pleas to charges of burglary and armed robbery. According to the article, Billy Isaacs was “expected to be a key witness for the prosecution, according to a reliable source.” This article also noted that the three remaining suspects were escapees from a Maryland prison.
An article which appeared in the December 31 edition of The Atlanta Journal was headlined “Trial Jury Sought in Alday Slayings.” The article began by describing how the process of jury selection had begun in Carl Isaacs’ trial. This article noted that the three suspects were arrested following a holdup at a country store in Virginia, that Coleman had admitted shooting Pennsylvania youth Richard Miller, and that all three remaining suspects were escapees from a Maryland prison.
A December 31 article which appeared in The Atlanta Constitution was headlined “Alday Jury Selection Press Ban.” The article described how the press had been barred from the courtroom during the process of jury selection. The article also described the other precautions taken by the trial judge to keep certain equipment used by the press outside the courtroom. In addition, the article noted that Billy Isaacs had pleaded guilty to burglary and armed robbery and was “expected to testify against his brother and the other defendants.”
The January 2 edition of The Atlanta Constitution contained a front-page article which was headlined, “Isaacs’ Prints Found at Alday Slay Scenes.” The article began by noting that Carl Isaacs’ fingerprints had been found at the crime scene. The article also noted that petitioner Coleman’s fingerprints were also found on the car abandoned in the woods near where Mary Alday’s body was found. The article recounted how a West Virginia state trooper testified that he took a wristwatch from Dungee that was identified by a family member as belonging to Mary Alday.
A front-page article in the January 4 edition of The Atlanta Constitution described how the jury had returned a guilty verdict in just over an hour and had sentenced defendant Carl Isaacs to death in the electric chair after another 38 minutes of deliberation. The article quoted extensively from closing arguments for prosecution and defense counsel. Another article in the January 4 edition of The Atlanta Constitution was headlined “Alday Family Hoped for Death Penalty, Speak Their Feelings.” According to the article, one family member remarked “[s]o far so good” when the jury returned a guilty verdict in Carl Isaacs’ case. According to the article, the relatives then started a waiting and hoping game — hoping that the seven women and five men on the Seminole County jury would come back with a death penalty for Carl. The article stated that the family “made no attempt to hide their feelings that Carl ought to be put to death for his part in killing six of their blood kin and viciously and repeatedly assaulting 26-year-old Mrs. Mary Alday.” One family member was quoted as stating “[w]e would hope the jury would give him [Carl] everything they can. Whatever punishment he gets won’t be enough.” The article concluded by noting that “[w]hen the jury came back out with its death penalty verdict for Carl, after deliberating only 38 minutes, the wife of one of the Alday victims smiled broadly.”
A front-page article in the January 4 edition of The Atlanta Journal described how the jury sentenced Carl Isaacs to death in the electric chair. The article noted that Billy Isaacs turned state’s evidence in the case and stated that he “described Carl as the ringleader who shot three of the victims personally and laughed when one begged for mercy, and who directed the killings of the other three.” The article also described how relatives of the victims appeared relieved or pleased when the death sentence was announced. The article quoted one family member who asked not to be identified as stating “I’ve said all the time they [the four suspects] would be found guilty and they’d be sentenced to death.”
An article which appeared in the January 7 edition of The Atlanta Journal was headlined “Second Alday Jury Sought.” The article indicated that the jury selection process was proceeding in George Dungee’s case. According to the article, special prosecutor Geer planned to call the same witnesses who testified in the previous week’s trial. The article stated that Billy Isaacs “testified that Dungee shot and killed Mary Alday after the young housewife was driven to a wooded clearing some miles from her husband’s mobile home where the other family members were murdered.”
A headline in the January 8 edition of The Atlanta Constitution read “Alday Slay Confession Disputed.” The article described how defense attorneys for George Dungee planned to object to an alleged confession made by Dungee to the murder of six members of the Alday family. According to the article, Dungee’s attorney “had discussed the possibility of changing Dungee’s innocent plea to guilty but he said prosecutor Geer had ‘objected’ to it.” A similar article headlined “Second Trial on in Alday Killings,” appeared in the January 8 edition of The Atlanta Journal. Another front page article in the January 8 edition of The Atlanta Journal was headlined “Testimony Places Dungee at Aldays?” The article reported that a Georgia law enforcement official had testified that fingerprints belonging to Dungee and the three other suspects were found at the crime scene. The article specifically stated that petitioner Coleman’s fingerprints were found in the mobile home, in Mary Alday’s automobile, and in a car stolen in Pennsylvania which was found near Ms. Alday’s body.
The headline for a front-page article in the January 10 Atlanta Constitution read “Dungee Given Death in Slaying of Aldays.” The article told how defendant George Dungee was found guilty and sentenced to death for his part in the slayings of the Alday family, and described briefly the closing arguments of both parties.
An article on page 8A of the January 10 edition of The Atlanta Constitution contained the headline “Plea Against Death Penalty Awes Lawyers.” In the article, special prosecutor Geer praised the efforts of defense attorneys for George Dungee to avoid imposition of the death penalty in their closing argument. The article quoted extensively from portions of attorney Sheffield’s closing argument.
Of the newspapers read by the residents of Seminole County, the Bainbridge Post-Searchlight probably had the least circulation in Seminole County. See Deposition of Waldo L. McLeod at 7. Two editorials from the May 17, 1973, edition of the Bainbridge Post-Searchlight merit discussion. One editorial, entitled “Corner the Mad Dog,” stated:
In the editorial parlance of early American newspapers, it was not uncommon for the editor to suggest that the perpetrator of a heinous crime “should be shot down like a dirty dog.”
We never liked that particular phrase, because even the meanest dogs we have ever known would in no way compare with the guilty person or persons who committed the violent, outrageous, atrocious, vicious, and beastly murders of six members of the Alday family in Seminole County sometime last Monday night.
To make such a comparison would be speaking disparagingly of dogs in general, and they are more entitled to consideration than the maniac or maniacs who snuffed out the lives of six human beings, five men and one woman during the course of the evening and in addition, criminally assaulted the woman before she was killed. At least, the record shows she was criminally assaulted either before or after death.
Fellow citizens, this is not Chicago or Hell’s Kitchen. This happened in South Georgia. Even the Mafia would refrain from the magnitude of such a crime.
A sex maniac is running free in our area. A mad dog is on the “loose.”
We are staunch believers in law and order, and we believe those who commit capital felonies should be brought before the bar of justice, but this is one case where we hope the guilty will resist arrest, and will be felled where they are cornered.
We must find this criminal or criminals if we have to track them to the four corners of the world. We must bring the ghoul or ghouls to bay and the guilty must be removed from our society just as a dog with rabies is removed. Permanently.
Another editorial in the same edition of the Bainbridge Post-Searchlight was entitled, “A Case for Capital Punishment.” The editorial stated:
It is remarkable how anyone could be aware of atrocities such as the Alday murders and still contend that capital punishment is too harsh, that it has no place in modern society, or that it is not an effective deterrent to criminals.
Three of the men who are suspected to have murdered the Aldays in an unhurried manner are escapees from a Maryland prison____
When a man is convicted beyond a reasonable doubt of crimes such as the Alday killings, there is nothing else that can be done for him. It is ridiculous to accept the premise that he can be made to see the error of his ways. As long as he lives, he is a threat to society. If he is imprisoned, he has the opportunity for escape, and even for parole. If he is executed, society has nothing more to fear.
The September, 1973 issue of Front Page Detective contained an article entitled “Too Evil to Be Called Animals.” The record indicates that at most 300-450 people purchased the September issue of Front Page Detective. A sentence in large caption type which appeared on the first page of the article stated that the “beast who gunned down the five God-fearing Alday men and then sexually assaulted and slaughtered pretty Mary Alday were, in the words of a lawman, lower than dogs and they seemed determined to prove it.” The article described how the bodies of the five Alday men were found in the trailer and indicated that Mary Alday “had been repeatedly raped and subjected to a hideous ordeal of sexual torture.” According to the article, “[ejven after death, there was reason to believe, the killers had continued to violate the young woman’s body.” The article also noted that fingerprints found at the scene of the crime, and in an automobile belonging to a missing Pennsylvania youth had been positively identified as those of Coleman, Carl Isaacs, Billy Isaacs, and George Dungee. The article quoted Sheriff Dan White as stating:
There’s talk around here of lynching if they’re found and brought back. The pitiful, pitiful thing about it is they might never be brought back. Those people will go some other place, commit crimes there and get convicted and never be brought back here for trial.
Of course, if we get them back here, I think they’ll be safe — not that I don’t share the community’s feelings that they’re animals and should be treated as such. Actually, I would hesitate to call them animals. What are you going to compare them with. They’re lower than a dog. You take that poor woman. They assaulted her, killed her, left her lying there nude____ Can you name me any animal that doesn’t protect its females?
If I had my way about it, I would have me a large oven and I’d pre-cook them several days, just keep them alive and let them punish. And I don’t think that would satisfy me.
But it’s not my job to prejudge the case. Let me just be the one to catch them. Let’s leave it to the court and jury to do the rest.
The article continued, giving the arrest record of each of the four suspects. The article also described how the suspects were arrested after they robbed a grocery store in Slate Creek, Virginia, and attempted to run a police roadblock. The article also indicated that credit cards belonging to Chester Alday and a jacket which belonged to missing Pennsylvania youth Richard Miller were found in the automobile in which the four suspects were traveling. The article also noted that after his arrest, petitioner Coleman allegedly admitted that the four had killed Pennsylvania youth Richard Miller. Coleman was quoted as stating that “[w]e killed him, because we didn’t want any witnesses.” An attorney appointed to represent one of the four suspects was quoted as stating that “[i]t’s the worst thing that’s ever happened to me.” Another stated, “I’ve done everything I can to get out of it.”
The cover of the November issue of Detective Files magazine was captioned “Sex Ghouls in Georgia, ‘Six For the Grave ... One For Us.’ ” The first page of the accompanying article contained official mug shots of the four suspects and in large type stated’ that “[i]n an effort to satisfy their depraved lust, the foursome didn’t shrink from wantonly disposing of anyone who happened to get in their way. As it turned out, six members of a single family were completely obliterated.” Devon, Six for the Grave — One for Us, Detective Files, Nov. 1973, at 12. The article, describing the four suspects, stated that it “seems likely they came from Hell.” Id. at 14. According to the article, “they were of that breed which cares nothing for anything except its own brutal needs.” Id. The article further stated that the four suspects got out of their car at the Alday trailer, “grinning that hard-faced intentness that is known by instinct to all females.” Id. The article continued and was generally a dramatized account of how the murders might have taken place. Our disposition of the case does not, however, rely upon this particular magazine article at all since, as far as the record indicates, only a few of the magazines were sold because some local merchants removed the magazine from their shelves, deeming it “gross” and “misleading.”
Another article captioned “Seminole Sheriff Isn’t Letting Feelings Come Before His Job” was distributed to an uncertain number of individuals in Seminole County who contributed to the Georgia Sheriff’s Boys’ Ranch, an orphanage. The article consisted primarily of a series of quotes from Seminole County Sheriff Dan White. In the article, he stated:
If I had my way about it, I’d have me a large oven and I’d pre-cook them for several days, just keep them alive and let them punish. And I don’t think that would satisfy me.
Whenever I’m protecting them, I’m going to do my job and bring them to court, and I hope they’ll get justice.
I don’t see where they could put up any plea for mercy. The acts of these men are lower than animals.
If a citizen gets out of hand and starts shooting people up, there’s only one way to arrest and that’s with a shotgun.
Any man that believes in God believes in capital punishment. I could throw the switch to the electric chair and never lose a minute’s sleep.
Virtually the only account of publicity generated through the broadcast media that is in the record consists of a transcript of news broadcasts on the Georgia Network News from May 15, 1973 through January 15, 1974.
Apparently, WAZA in Bainbridge was the only radio station in the Seminole County listening area which carried the Georgia Network News. The record indicates that WAZA broadcast into parts of Seminole County and could be received in Donalsonville and Iron City, the major towns in Seminole County. Surveys or ratings showing the exact listening audience in Seminole County were unavailable because WAZA is located in a small community and does not regularly commission such studies. Deposition of William Roy Simpson at 3-4.
The initial broadcasts on May 15, 1973 identified the victims and contained little information concerning the suspects other than to note that they were “hippy type[s].” On the afternoon of May 15, however, the Georgia Network News reported that authorities were looking for “three whites and a black male that were escapees from Pennsylvania prison, and they had left a car with Pennsylvania tag down there.” A subsequent May 15 broadcast stated that authorities “know who they’re looking for in connection with the murders.” The report stated that:
[T]he escapees came to the Alday home where Mrs. Alday was. They abducted her, then methodically shot the Alday men as they returned to the home from farm work in nearby fields. They then took Mrs. Alday about five miles from the mobile home to a wooded area, where they were believed to have raped and shot her in the head and back. They abandoned the stolen car at the scene and fled in Mrs. Alday’s car.
In a May 16 broadcast, the director of the Georgia Division of Investigation, William Beardsley, stated that he felt that “we have some very valid prints.” In a subsequent May 16 broadcast, Beardsley indicated that fingerprints were found “in the trailer and some on the automobile that was abandoned, where the woman’s body was found.” Each of the May 16 broadcasts also theorized that the rape of Mrs. Mary Alday was the only motive in the case. The May 16 broadcast noted that authorities were still lacking “the main lead, where the three Maryland prison escapees went after they reportedly shot and killed the six Aldays.” The May 16 broadcast also theorized that the four suspects might be connected with some murders in Florida.
The first broadcast on the Georgia News Network of May 17 stated that “fingerprints which state agents found virtually all over the place at the crime scene outside Donalsonville and in an abandoned car have helped police firmly identify the suspects as three Maryland prison escapees and the brother of one of them.” Subsequent broadcasts on May 17 described how Ms. Mary Alday’s car was found in Livingston, Alabama. Virtually all of the May 17 broadcasts identified the suspects as Maryland prison escapees.
The initial broadcast on May 18 described how George Dungee had been taken into custody in West Virginia and that authorities were continuing their search for the other three suspects. The report noted that the “four are believed to be the killers of six members of a Donalsonville, Georgia, family last Monday night.” A subsequent May 18 broadcast described how police in West Virginia captured the three remaining suspects with bloodhounds. In another May 18 broadcast, Sheriff Dan White reportedly stated that “he thinks the people in his county are so incensed at the shootings that there may be a try at mob violence if the four suspects are brought to the area.” Another May 18 broadcast reported that “the McDowell County, West Virginia, Sheriff said today that a fugitive taken into custody yesterday, 35 year old George Dungee, confessed to complicity in the South Georgia incident, but charged that 26 year old Wayne Coleman, another of the fugitives, shot the six Aldays.” Sheriff White was again reported as having said that “there is a possibility that if the suspects were brought to Donalsonville for jailing prior to trial, that the enraged population, at least some members of it, would attempt mob violence, meaning a lynching.” In a broadcast during the afternoon of May 18, West Virginia Sheriff Archie Day was quoted as stating that “[t]hey [the suspects] have — the colored boy did confess to me that they were the ones that killed these people down there.” That report also noted that Seminole County officials feared mob violence if the suspects were brought back there to be jailed. In a subsequent broadcast on the afternoon of May 18, Sheriff White was quoted as stating:
It’s a relief to us that we’ve got these men and we’ll bring them to justice. We have a — we have a fair courts [sic] here, good a’ courts as there is in the nation, and our people here believe in God and they believe in law and order. You got to believe in God if you believe in law and order. You got to believe in cap — if you believe in God, you got to believe in capital punishment.
Another broadcast during the afternoon of May 18 repeated the quotation in which Sheriff Archie Day described how George Dungee confessed. The report also repeated Sheriff White’s “God, law, and order” quotation noted above, which was broadcast earlier in the day.
The initial broadcast on May 21 described how the four suspects were being taken to Donalsonville for a preliminary hearing. The broadcasts stated that “[p]olice and state troopers in the southwest Georgia town of Donalsonville will be out in force today to protect the four from potential mob action, which the sheriff, Dan White, says is a real potential.” In the same broadcast, E.A. appealed to residents to keep their heads because “enough folks have been hurt already.” In a subsequent broadcast on the morning of May 21, the Georgia Network reported that “purchases of handguns in the small Southwest town of Donalsonville has [sic] skyrocketed.” Another May 21 broadcast described how William Isaacs “reportedly laughed and smirked during the court hearing in Donalsonville.” The report also indicated that immediately following the preliminary hearing, one of the prisoners would be taken to Pennsylvania to assist in the search for the body of Pennsylvania youth Richard Miller. When Georgia Division of Investigation Director William Beardsley was asked about the possibility of mob action, he stated, “Oh, no, no, uh-uh. These are very sophisticated people down here. We didn’t anticipate anything, and I’m just sure there won’t be anything.” A broadcast on the evening of May 21 described the suspects’ preliminary hearing and again noted that William Isaacs “reportedly laughed and smirked during the court hearing.” In the broadcast, a police officer was quoted as describing the young Isaacs as “the meanest bastard of them all.” This report also indicated that “one of the four accused killers will be going back to Pennsylvania, where he reportedly stole a car and killed the driver of that car, Wayne Miller.”
On the morning of May 22, the Georgia Network reported that “[a]s the sun comes up on McConnellsburg, Pennsylvania, today, police will remove a 26-year-old Alday murder suspect, Wayne Coleman, from a jail cell to look for a dead man. Coleman reportedly told Georgia authorities he killed the driver of a car he and three others stole before coming to Georgia last week.” In numerous other broadcasts on May 22, Georgia Division of Investigation Director William Beardsley indicated that evidence against the four suspects was not yet complete but nonetheless expressed his confidence that the evidence would be sufficient when the four came to trial. Another May 22 broadcast noted that former Lieutenant Governor Peter Zack Geer had been retained as a special prosecutor in the case by the Alday family.
In a May 23 broadcast, the Georgia Network reported that Pennsylvania police were still looking for the body of a Pennsylvania youth. The report stated that “[p]olice say they believe the original four murder suspects from Maryland stole the car after Coleman killed the driver, and used the car as their transportation to Georgia before the Alday murders of Donalsonville.” A subsequent broadcast on May 23 noted that Pennsylvania authorities were “looking for the body of a man Coleman allegedly told police he killed.” Subsequent broadcasts on May 23 also focused on petitioner Coleman’s assistance in the search for the body of the Pennsylvania youth.
On May 25, the Georgia Network News focused on several attorneys’ reluctance to act as defense attorneys for the suspects. In one May 25 broadcast, state Senator Julian Webb of Donalsonville was quoted as stating:
The Alday families, both Ned and Aubrey, were friends of mine for many years. Ned Alday’s farm is just north of my farm, and Aubrey Alday’s farm is just south of mine. And secondly, I sponsored the death penalty law which is now on the statute books, and apparently these crimes fall squarely within the provisions of that statute.
According to the report, Senator Webb deemed the appointment a “conflict of interest,” and he stated that the four suspects could get fair trials in Seminole County-
The next broadcast in the case apparently came on June 4 when the Georgia Network News reported that Maryland police had found the body of Richard Miller. According to the report, “[o]ne of the alleged Alday murderers, Wayne Coleman, reportedly told police that he and his three companions shot and killed Miller after stealing his car. Authorities speculate that the four killed Miller because they did not want any witnesses.”
Until December, when the actual trial began, reports on the Georgia Network were primarily factual and contained no prejudicial information although reports on June 20 and on September 4 identified three of the four suspects as prison escapees from Maryland. Otherwise, the broadcasts simply recounted procedural events in the case.
On December 24, however, the Georgia Network reported that Billy Isaacs “is expected to be a star witness for the prosecution against his brothers and a third companion when their murder trials begin in Donalsonville December 31st.” The report continued noting that “Isaacs may well be the only eyewitness to the crime available to the prosecution. He has reportedly issued a statement to lawmen describing the slayings of Ned Alday, his three sons, Jimmy, Jerry and Chester, his brother Aubrey, and daughter-in-law, Mary Campbell Alday.” Subsequent reports on December 24 repeated this information.
Broadcasts on December 28 also noted that Billy Isaacs “is believed to have turned State’s evidence, and may provide eyewitness testimony to the slayings.”
Broadcasts on December 31 on the Georgia Network noted that jury selection in Carl Isaacs’ case was proceeding, and many of the broadcasts noted that one of the suspects who had already pleaded guilty was expected to turn state’s evidence in the case against Carl Isaacs.
January 1 broadcasts on the Georgia Network indicated that special prosecutor Peter Zack Geer promised to produce an eyewitness to the killings and also noted that a local resident had identified Carl Isaacs as the driver of an automobile seen leaving the Alday trailer on the day of the murders in his testimony.
A January 2 broadcast on the Georgia Network described Billy Isaacs’ testimony as follows:
A teenager has testified at Donalsonville that his brother and two other men wiped out a farming family of six in an isolated trailer last May, killing five men and one woman, one by one. But 16 year old Billy Isaacs, the State’s star witness, denied that he killed or assaulted anyone. He testified against his own brother, 19 year old Carl Isaacs, the first of the three defendants to be tried for the murders of six members of the Ned Alday family. Young Isaacs said that his brother gave the orders for the killings as the Alday men showed up during their burglary of the trailer.
On the evening of January 2, another Georgia Network News broadcast further described Billy Isaacs’ testimony as follows:
With his brother sitting directly in front of him, Billy spelled out in a flat, unemotional voice the details of that day of horror last May. Billy said that over the course of an hour, Carl Isaacs took three of the Alday men and one at a time shot them in the head. Billy also said two other Alday men and Mary Alday were similarly murdered by the two other suspects in the case. Those other suspects will be tried separately.
A broadcast on the morning of January 3 repeated this information and noted that closing arguments in the case were expected that morning. Another broadcast on the morning of January 3, describing Billy Isaacs’ testimony, stated that “Billy told how over an hour, Carl methodically shot three Alday men in the head, laughing when one begged for mercy.” Subsequent broadcasts on January 3 described how the jury brought back a guilty verdict against Carl Isaacs.
On the morning of January 4, the Georgia Network reported that Carl Isaacs had been sentenced to death the previous day after being found guilty on six counts of murder. The report stated that “Isaacs is said to have yawned while the prosecutor was asking for the death penalty.” Subsequent reports on January 4 noted the guilty verdict and death sentence announced in Carl Isaacs’ case and indicated that George Dungee was set to go on trial the following Monday.
On January 7, numerous reports on the Georgia Network News indicated that jury selection was proceeding in George Dungee’s case and also reminded listeners that Carl Isaacs had been found guilty and sentenced to death the previous week.
In a morning broadcast on January 8, the Georgia Network News reported that defense attorneys for George Dungee planned to object to a “legal confession” that special prosecutor Peter Zack Geer said he hoped to introduce at the trial. Subsequent broadcasts on the morning of January 8 repeated the information with respect to the alleged confession of Dungee, and another January 8 broadcast stated that “[yjoung Billy Isaacs is expected to take the stand later today to describe Dungee’s part in the killing of six members of the Alday family last May.” In the afternoon of January 8, the Georgia Network News reported that a Georgia law enforcement official testified that George Dungee’s fingerprints were found on a beer can outside of the mobile home where the crime occurred. The official was also reported as having testified that four prints were found inside the mobile home and that fingerprints were also found on the 1970 Chevrolet which was found in Livingston, Alabama, that belonged to Mary Alday. Subsequent reports on the afternoon of January 8 reiterated the fact that “fingerprints at the scene of the Alday murders in Donalsonville put George Dungee at the scene.”
Broadcasts on the morning of January 9 described how Billy Isaacs testified that George Dungee “pulled the trigger on the gun which took the life of Mrs. Mary Alday.” The reports also indicated that Carl Isaacs had previously been found guilty and sentenced to death by a Seminole County jury. On the afternoon of January 9, the Georgia Network News reported that George Dungee was the second defendant in the case to be convicted and receive the death penalty. Similarly, reports on January 10 indicated that Dungee was the second of the defendants to receive the death penalty and that the trial of the third and final defendant, Wayne Coleman, was scheduled to begin the following Monday.
Testimony developed in the evidentiary hearings on remand in the district court clearly establishes that word-of-mouth communication constituted one of the major means in which Seminole County residents received their news. Mr. Alto Lee, an attorney who assisted in the prosecution of the case at trial, testified that as regards the Alday murders, “because of the number of people involved in this and the attention that it received from elsewhere, I don’t know exactly how I could categorize it, sir. Things were known in Seminole County. It’s a small, rural county. It’s not a large county. And when something happened, it was pretty well known down there, be it the Alday case or be it other cases, other matters like that. Yes, sir, the word got around.” 4th Supp. Record on Appeal, vol. 2 at 62.
Undoubtedly, the most colorful description of word-of-mouth communication in Seminole County came from Ms. T.H., a lifetime resident of Seminole County and a juror in the Dungee case. According to Ms. H., news of the murders “scattered just like fire in broom sage.” Id. at 176. As regards the electronic media, Ms. H. testified that after the murders occurred, “everybody listened more than usual.” Id. at 177. When asked whether local residents talked about the crimes a great deal, Ms. H. stated, “My Lord. They’d have had to have lockjaw not to because that was the topic or the subject around a little town like Donalsonville there, and everybody was so excited and upset over it.” Id. at 186. Ms. H. described the way word was transmitted through the community as “just like chaff in the wind.” Id. at 195. She stated, “[rjadio, television, mouth-to-mouth and friend-to-friend. Everybody was talking about it.” Id.
One of the most disturbing portions of Ms. H.’s testimony, however, is her description of the community attitude existing at the time of trial. The colloquy reveals the following:
Q. Okay. And everybody was upset about it?
A. Why, sure.
Q. What do you mean by that?
A. Well, they were nice people, religious people, and good citizens, and they hated to see people like that did kill them do it.
THE COURT: In other words, the people in the county were not in favor of it?
THE WITNESS: That’s what I’m trying to say. That's exactly. Appreciate your straightening it out for me.
BY MR. BRIGHT: Q. Right.
A. No, nobody condoned it at all.
Q. And did people indicate what they thought ought to be done about it?
A. Mighty right they did.
Q. What did they say?
A. Fry’em, electrocute ’em.
Q. What else?
A. That’s about all I heard, and that’s what should be done for ’em.
Q. But that was the community sentiment, fry ’em or electrocute ’em?
A. Everybody felt that, yes.
Q. Everybody?
A. Yes.
Id. at 187-88.
Ms. H.’s testimony on cross-examination by the state’s attorney also reveals the following:
Q. Ms. H., isn’t it true that members of the Seminole County and Donalsonville area that you talked to said the defendants should be electrocuted or fried, as you’ve said, if they were the ones that had committed the crimes?
A. Everybody had that sentiment, I think.
Q. Isn’t that with the ones that had committed it though, Ms. H.? A. Yes.
Q. They should not be punished if they had not done the crime though, should they?
A. Well, everybody knew they did it though.
Q. How did they know that, Ms. H.?
A. All the circumstantial evidence.
Id. at 197.
Another local resident, W.L., testified that the Alday murders were the biggest news story he could remember during the fifty years he had lived in Donalsonville. Id. at 201. Mr. L. also described the victims’ family as “one of the most prominent families in Seminole County.” Id. at 202. When asked whether he was aware of anyone who had not heard about the cases by the time they came to trial, Mr. L. stated, “No, sir, not that I know of because it’s a small place and news gets around, you know. And people like to keep up on things like that down there.” Id. at 203. Although indicating he would be afraid to say what people in the community thought ought to happen to the guilty parties, when pressed, Mr. L. stated: “Well, I mean most of them that I heard thought it was a terrible thing and that they ought to get a severe penalty out of it.” And when asked what he meant by “severe penalty,” he continued: “Well, I don’t know. They didn’t say executed. You know how a small town is. But that’s probably what they had in mind.” Id. at 204.
Mr. Bobby Nichols, the clerk of the trial court in which the defendants were convicted, stated that he knew of no other trial in Seminole County during the period of time in which he had been acting as clerk of the court which received any more publicity than this trial. Id. at 224. Mr. Nichols also testified that the only news event that received as much publicity at the outset was a hotel fire that had occurred several years earlier. Id. at 225. Mr. Nichols also testified that before Coleman’s trial began, he formed an opinion that the suspect was guilty. Id. at 230. Mr. Nichols also testified that after Carl Isaacs’ trial was complete, he decided that if the other defendants were subsequently convicted, they should also receive the death penalty. Id. at 231.
Mr. Bill Montgomery, a reporter with The Atlanta Journal who was in Seminole County shortly after the crimes were committed and interviewed local residents to get a sense of the reaction of the community, testified that “from personal interviews that I had with people and hearing conversation on the streets, from interviews, they wanted the defendants caught and they wanted them executed.” Id., vol. 3 at 46-47. Mr. Montgomery testified that he never heard any different attitude expressed by anyone in the community and stated that the “general attitude to my recollection all along was that if they were guilty they should be executed.” Id. at 48. When asked whether he met anyone who had a contrary opinion, Mr. Montgomery stated “I can’t recall anybody — the people that I talked to were — the people that I talked to seemed to feel that these were the right people, that these defendants had committed the murders and that they wanted them executed, the people that I talked to.” Id. at 69.
Dave Harrison was a reporter with The Albany Herald and covered a five-county area, including Seminole County from 1972 to 1977. Mr. Harrison described Seminole County as a “very tight knit community,” id., vol. 6 at 470, in which “everybody knows everybody. Everybody is almost kin to everybody else in the county. It’s that type community. Everybody considers everybody else neighbors.” Id. at 471. Although The Albany Herald was a daily paper, Mr. Harrison felt that word-of-mouth communication in the community was such that the majority of the people in the county knew about the crime before The Albany Herald got to the county. Id. at 477. Mr. Harrison also stated that the “talk” that he heard with respect to the perpetrators of the Alday murders was that the “people who killed the Alday family should be given the same type justice that the Alday family was given.” Id. at 479. In Mr. Harrison’s opinion, the Alday murders were “the biggest news story that’s ever happened in that county.” Id. at 482. Mr. Harrison indicated that neither the publicity that he saw nor the conversations that he heard contained any information that was favorable to the suspects in any way. Id. at 483. In describing the hostility the community felt towards the suspects, Mr. Harrison stated that “people were just very angry about it, and they wanted the people who had done this to pay for it. They wanted revenge.” Id. at 484. Mr. Harrison also testified that there was a “general community opinion” that whoever was guilty of the Alday murders should receive the death sentence. Id. at 486. Mr. Harrison did testify, however, that he heard some rumors in the community that individuals who were associated with a man previously found guilty of a robbery in the area might have been responsible for the Alday murders. Mr. Harrison also testified that he heard rumors to the effect that individuals in a religious organization which was located in Seminole County and which consisted primarily of blacks from New York and New Jersey might have been involved in the Alday murders. Id. at 498-99. Mr. Harrison also agreed that some members of the community spoke out in the press and said they wanted to make sure the defendants got a fair trial “because they didn’t want them to get off.” Id. at 499.
Mr. Bill Cotterell, a reporter for United Press International, was also in Seminole County shortly after the crimes were committed and again during the trials. In describing the types of media available to the residents of Seminole County, Mr. Cotterell stated, “I’d say radio, television, the daily newspapers. The time I spent there I would also feel that just word-of-mouth in such a small place. Word got around fairly fast and not always accurately, but major events were common knowledge very quickly throughout the community.” Id. at 510. In preparing his news stories, Mr. Cotterell stated that he spoke with numerous residents of Seminole County. Id. According to Mr. Cotterell, the general opinion in the community seemed to be that the four suspects were guilty, and he never heard anyone express a contrary opinion. Id. at 514. Although Mr. Cotterell did not remember asking the citizenry’s opinion as to the appropriate punishment, he testified that “usually as a continuum in a sentence people would say people like that ought to be executed.” Id. Although Mr. Cotterell testified that he never heard anybody directly threaten the lives of the four suspects, he stated that he “heard frequent expressions of an attitude that ‘isn’t it too bad that when they get these guys and when they’re convicted it’s going to take forever for justice to be done, and wouldn’t it be better if we could just do it on the spot.’ ” Id. at 515.
On the Saturday following the murders, Mr. Cotterell stated that he was in Donalsonville for a scheduled arraignment which never took place. Mr. Cotterell described how a crowd had gathered in downtown Donalsonville and stated that “there was a persistent opinion expressed that if the judge just released them on recognizance and bound it over for trial, that justice would then be swiftly done within the community.” Id. at 516. Mr. Cotterell further testified that when he returned to Donalsonville for the trial of Carl Isaacs there was no change in attitude and that he “heard no one express any doubt that they were guilty and that they deserved to be executed.” Id. at 522. On cross-examination, Mr. Cotterell agreed that the community wanted the defendants to receive a fair trial. Id. at 530.
Gil Kelley, owner of the local radio station in Donalsonville, gave what is probably the most favorable testimony to the state. As the events surrounding the Alday murders were unfolding, Mr. Kelley testified that “the biggest job that my station had, I had, was keeping the true identity of the people of Seminole County. Seminole County is not a South Georgia, back-woods, red-necked community. It’s a cultured community. It’s a refined community.” Deposition of Gilbert M. Kelley at 14. Mr. Kelley stated that the Alday murders were not the biggest news story that his radio station had ever broadcast nor was it one of the most important news stories. Id. at 16. Nonetheless, Mr. Kelley admitted that the common feeling among residents in the county was that most probably, the authorities had arrested the proper parties in the case, and he also stated that he was not personally aware of any sentiment in the community which desired an acquittal in the case. Id. at 21. On cross-examination, however, he responded affirmatively to a question as to whether the defendants could get a fair trial at that time in Seminole County, id. at 50, and stated that the trial was not a foregone conclusion. Id. at 51.
Waldo McLeod, editor of the Donalsonville News, agreed — “[i]n all honesty, I think affirmative” — that the general feeling in the community was “that the persons who had been charged with this crime were the ones who had committed it,” and “that the law enforcement officials had arrested the right people.” Deposition of Waldo L. McLeod at 27. Moreover, Mr. McLeod agreed that the Alday murders were really the biggest news story that came out of Seminole County. Id. at 31. Later, Mr. McLeod stated that he believed they had a fair trial. Id. at 33.
III. APPLICATION OF THE PRESUMED PREJUDICE STANDARD
At the outset, we emphasize the fact that the presumptive prejudice standard recognized in Rideau is only “rarely” applicable, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976), and is reserved for an “extreme situation.” Mayola v. State of Alabama, 623 F.2d 992 (5th Cir.1980). In short, the burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.
In Patton v. Yount, 467 U.S. 1025, —, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847, 857 (1984), the Supreme Court held that where the partiality of an individual juror is challenged, the statutory presumption of correctness due a state court’s factual findings under 28 U.S.C. § 2254(d) is fully applicable. With respect to the actual prejudice issue — i.e., whether prejudice has invaded the actual panel of twelve jurors— the Patton v. Yount majority questioned the conclusion that it was a mixed question of fact and law. However, without definitively resolving the issue, the Court applied the Irvin “manifest error” standard, intimating that there may be “little practical difference between the Irvin ‘manifest error’ standard and the ‘fairly supported by the record’ standard of the amended habeas statute.” Id. at-n. 7, 104 S.Ct. at 2889 n. 7, 81 L.Ed.2d at 854 n. 7. With respect to the somewhat different presumed prejudice inquiry under Rideau, we need not decide whether presumed prejudice is a mixed question of fact and law or a pure question of fact, because applying any of the relevant legal standards, be it “manifest error,” “fairly supported by the record,” “clearly erroneous,” or independent review of a mixed question of fact and law under the extremely high Rideau standard, we conclude that Coleman has met the standard.
Applying the extremely high standard of review, our review of the record in the instant case leads to the inescapable conclusion that petitioner Coleman was denied his right to a fair trial before an impartial jury. Indeed, this case is a close case only because of the extremely high standard that must be met. If there were no constitutional right to a change in venue in the instant case, then one can conceive of virtually no case in which a change of venue would be a constitutional necessity.
In determining whether petitioner Coleman’s jury met the constitutional standard of “a panel of impartial ‘indifferent’ jurors,” Irvin v. Dowd, 366 U.S. at 722, 81 S.Ct. at 1642, we must examine the totality of the circumstances surrounding the petitioner’s trial. See Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). In examining the totality of the circumstances surrounding petitioner Coleman’s trial, we emphasize the fact that no single factor is dispositive. Instead, we have weighed each element of the prejudicial publicity, taking into consideration the pervasiveness of the circulation thereof, and how that publicity contributed to the totality of the circumstances. Although residents of Seminole County may have been exposed to more than one of the several media, i.e., newspaper, broadcast and word-of-mouth, our evaluation has recognized the obvious fact that no one person would have read, for example, all of the newspapers summarized in this opinion, or all of the publicity in any single newspaper. Thus, we have been careful to discount accordingly the overwhelming cumulative weight of the description in Part II of this opinion.
After reviewing the record in the instant case, the manifest picture that emerges is a community that was deeply prejudiced as to both guilt and sentence. As soon as petitioner Coleman and his co-indictees were identified as suspects in the case, law enforcement officials announced that circumstantial evidence against the suspects was “overpowering,” and that “there’s no point in looking for anybody else.” The press revealed that the suspects’ fingerprints had been found at the scene of the crime. The fact that petitioner Coleman and his co-indictees were escapees from a Maryland prison was reported along with their prior criminal records, including the crime spree along the Eastern Seaboard of which the instant murders were a part. Petitioner Coleman was rarely identified as a suspect in the case without the article noting that he had confessed to the murder of Pennsylvania youth Richard Miller. All of the foregoing was widely reported in all of the newspapers serving Seminole County, and in what the record discloses of the broadcast media. It was repeated time and again. The details of the testimony of Coleman’s own half-brother, Billy Isaacs’, describing explicitly the horrible manner in which Coleman and the others murdered the six Alday family members, were widely and repeatedly reported in Seminole County immediately prior to Coleman’s trial. In short, there was an overwhelming showing in the press of petitioner Coleman’s guilt before his trial ever began.
In addition, there was publicity that was either calculated to provoke hostility or reflective of an atmosphere of hostility; including, inter alia, the “precook” and other egregious remarks by the county’s chief law enforcement officer, Sheriff White; the newspaper description of the defendants as smirking and other characterizations of remorselessness and other derogatory characterizations; the remarks of the defendants’ own mother suggesting that mercy was inappropriate; the efforts and statements of numerous attorneys to avoid appointment, both reflecting their assessment of the community atmosphere and aggravating same; and the direct testimony of several residents and newsmen, whose job included assessment of the community atmosphere, to the effect that the community had prejudged the case.
Further aggravating the atmosphere was the evidence that the community was of the opinion that death was the only appropriate penalty for those found guilty of the Alday murders. The fact that the family wanted the death penalty pervaded the community. This was particularly prejudicial because Seminole County is a small community in which the victims’ family was well known and respected, and the voir dire revealed that several jurors knew the family. One knew five of the six victims personally and attended their funeral. Another had known the victims for eight years and had worked with two of them. A third went to the trailer to pay his respects to the family two days after the victims’ deaths. It was common knowledge in the community that special prosecutor Geer was retained by the surviving family members to prosecute the case. This fact coupled with his appeal to the jury to impose death conveyed the unmistakable implication to the jury that the family hoped that the defendants would receive the death penalty. Moreover, shortly before petitioner Coleman’s trial it was widely reported that family members were pleased with the death sentence returned in Carl Isaacs’ case. Significantly, the community’s ranking law enforcement officer made widely reported and outrageous statements as to the need for vengeance, retribution, and capital punishment, all in the name of “justice.” Finally, editorials called for the death penalty, and reports of comments from attorneys and other news articles repeatedly suggested the appropriateness of the death penalty.
The clear picture that emerges from the publicity itself — that the community was predisposed as to both guilt and sentence— is borne out by the testimony of several local residents and by the testimony of several journalists whose jobs included reporting the atmosphere of the community at the time. See supra 1532-1536. As Ms. H. testified: everyone knew they were guilty and everyone knew they should be electrocuted.
Under such circumstances, it is inconceivable to think that petitioner Coleman received an impartial assessment of his guilt or innocence on the basis of the evidence, and the detached weighing of aggravating and mitigating circumstances which the Georgia death penalty system contemplates.
The description of the publicity set out earlier in this opinion leaves no doubt but that this small community was overwhelmed and saturated with prejudicial and inflammatory publicity.
The showing made by petitioner Coleman in the instant case equals that made in Rideau. As summarized above, the press saturated the community with overwhelming evidence of Coleman’s guilt. The explicit details of the inculpatory and eyewitness testimony of Coleman’s own half-brother, Billy, together with the other publicity in this case, approaches the prejudicial impact of the televised confession in Rideau. In some respects, the instant conviction is even more vulnerable than Rideau. Many of the widely publicized facts were not admissible at Coleman’s trial, e.g., his confession to the murder of the Pennsylvania youth, the fact that he was an escaped convict and his participation in a crime spree along the Eastern Seaboard. Also there was strong additional evidence here, but not in Rideau, that the community was inflamed, e.g., the sheriff’s egregious remarks, the direct testimony of residents and newsmen, and the other evidence summarized above. In addition, Seminole County’s population of 7,000 was much smaller than the Calcasieu Parish population of 150,000, the significance of which is magnified by the evidence of the community’s and the jury’s friendship and sympathy for the victims and their family. Finally, the instant case is stronger than Rideau in that there was no evidence of prejudice as to sentence in Rideau, whereas there was very strong evidence in this case, as summarized above.
We conclude that petitioner has adduced evidence of inflammatory and prejudicial pretrial publicity that so pervaded the community as to render virtually impossible a fair trial before an impartial jury. Just as it is inconceivable that Rideau could have received an impartial assessment of his guilt in the community in which his televised confession was broadcast, it is inconceivable that petitioner Coleman could have received either an impartial assessment of his guilt or innocence or a detached weighing of aggravating and mitigating circumstances in Seminole County. The district court’s finding to the contrary is clearly erroneous, and any finding to the contrary would be manifest error.
The state argues that there was no “nexus” between the pretrial publicity and the guilty verdict and death sentence returned by the jury. In Rideau, however, the Supreme Court specifically rejected the view that a habeas petitioner must establish a “substantial nexus” between the pretrial publicity and the petitioner’s trial. See 373 U.S. at 729, 83 S.Ct. at 1420 (Clark, J., dissenting). The reason for such a rule is clear: when the extremely high showing required by Rideau is made, prejudice is manifest and thus is presumed.
The state also repeatedly argues that there was overwhelming evidence of the petitioner’s guilt and also argues that the facts proved at trial were such that death was the only appropriate sentence. We believe that there was, in fact, overwhelming evidence of the petitioner’s guilt adduced at trial. Nonetheless, we conclude that that fact cannot be dispositive in assessing petitioner’s change of venue claim. In Rideau, the evidence of guilt was also overwhelming; the Supreme Court nevertheless presumed prejudice. To hold otherwise would mean an obviously guilty defendant would have no right to a fair trial before an impartial jury, a holding which would be contrary to the well established and fundamental constitutional right of every defendant to a fair trial. In Irvin v. Dowd, the Supreme Court noted that a “fair trial in a fair tribunal is a basic requirement of due process” and stated that “[tjhis is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.” 366 U.S. at 722, 81 S.Ct. at 1642. Even if the Supreme Court precedent allowed us to consider harmless error as to guilt, the absolute discretion of a Georgia jury to grant mercy for any reason, Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982), would make it anomalous to apply the overwhelming evidence concept to the sentencing phase.
The state also argues that there was a substantial “cooling off” period between the commission of the crimes and petitioner Coleman’s trial. Although there was some slackening of the publicity from July until November, several factors persuade us that there was not a sufficient change in the nature or amount of the publicity to conclude that “the feelings of revulsion that create prejudice have passed.” Patton v. Yount, 467 U.S. 1025, -, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847, 856 (1984). First, much of the procedural publicity during this time also reminded readers of the facts of the crimes, the suspects’ escape from a Maryland prison, or the murder of Pennsylvania youth Richard Miller, and petitioner Coleman’s confession to that murder. The first crime magazine, Front Page Detective, came out in August, during the supposedly cool period, and sold an unusually large number. Finally, there was intense publicity in the several weeks prior to petitioner Coleman’s trial, recapitulating the details of the prejudicial publicity which had previously been reported, and adding the publicity of the recent trials and death sentences of Carl Isaacs and Dungee and the explicit details of Billy Isaacs’ testimony.
The state argues that the voir dire record in this case rebuts any finding of presumed prejudice. Assuming that there can be such a rebuttal, we conclude that the voir dire record in this case does not rebut the presumption of prejudice. We begin by detailing the manner in which the voir dire examinations were conducted. The trial judge called prospective jurors into the jury box in panels of twelve. The record indicates that all other members of the venire were in the courtroom while the panel of twelve was the subject of questioning. Questioning began with the prosecutor, who put a number of questions to the panel of twelve en bloc. Typically, special prosecutor Geer asked the prospective jurors if they had any prejudice or bias in their minds either for or against the defendant. Then the special prosecutor asked them if their minds were perfectly impartial between the state and the accused. After special prosecutor Geer finished with the en bloc questions, the trial court permitted the prosecutor and defense counsel to ask questions of the prospective jurors individually. The trial judge did not limit defense attorneys either in terms of the time to ask questions or in terms of the nature of the questions that they could ask. However, the voir dire is subject to question for several reasons. First, prospective jurors were examined in the presence of prospective jurors who had not yet been examined. In light of the significant possibility of prejudice, preferable voir dire procedures would have followed the ABA Guidelines:
If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure shall take place outside the presence of other chosen and prospective jurors.
ABA Standard for Criminal Justice, § 8-3.-5(a) (2d ed. 1980) (quoted in C. Wright, 2 Federal Practice & Procedure § 381 at 337 n. 10 (2d ed. 1982)). In Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961), the trial court apparently used similar procedures in selecting jurors. In Irvin, the Supreme Court criticized the practice and stated:
No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.
Id. In Patton v. Yount, 467 U.S 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court was faced with an actual prejudice claim similar to that presented in Irvin. In Patton, the Court specifically noted the “significant difference” in the voir dire procedures where veniremen were brought into the courtroom alone for questioning. Although not deemed controlling, that fact was nonetheless “not an insubstantial distinction.” Patton v. Yount, 467 U.S. at-n. 10, 104 S.Ct. at 2890 n. 10, 81 L.Ed.2d at 857 n. 10.
Another problem with the voir dire in petitioner Coleman’s case is that the prospective jurors were not asked questions which were calculated to elicit the disclosure of the existence of actual prejudice, the degree to which the jurors had been exposed to prejudicial publicity, and how such exposure had affected the jurors’ attitude towards the trial. See Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); cf. Patton v. Yount, 467 U.S. at-n. 10, 104 S.Ct. at 2890 n. 10. Instead, leading questions and conclusory answers were typical of the manner in which Coleman’s voir dire was conducted. For example, special prosecutor Geer began the individual questioning of prospective jurors and typically asked whether the juror understood “that this defendant, Wayne Carl Coleman, is presumed innocent until proven guilty to a moral certainty and beyond all reasonable doubt by the state of Georgia.” Trial Record, Vol. 1 at 85. Geer also typically asked the juror whether he understood that the defendant “is innocent at this moment under the law.” Id. Geer often asked, “Would the fact that you might have read something about this case from any source influence your mind one way or the other?” Id. Other typical questions included, “Would you go by the evidence in the case and the charge of court given you by the court?” Do you understand that the defendant doesn’t have to prove anything?” and “The burden is on the state to prove him guilty beyond a reasonable doubt?” Id. at 86.
Similarly, although the questions posed by defense attorneys were somewhat more effective, they too tended to be eonclusory. For example, the defense attorney would typically elicit the fact that the potential juror had read or heard about the crimes, i.e., some exposure. However, that would too often be followed up by a merely conclusory question: “Now, from having read about the homicides and also having read of the persons accused and having also seen this on television, is your mind now perfectly impartial between the state and the accused?”
Despite these problems with the voir dire in petitioner Coleman’s case, almost one-half of the jurors who were questioned as to whether they had formed an opinion, were stricken for cause for having a fixed opinion.
For the foregoing reasons, and in light of the overwhelming evidence that the community had prejudged both guilt and sentence, we are satisfied that the eonclusory protestations of impartiality in the voir dire are not sufficient to rebut the presumption of prejudice. Cf. Irvin v. Dowd, 366 U.S. at 728, 81 S.Ct. at 1645 (“No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father”).
IV. CONCLUSION
We thus conclude that petitioner Coleman’s evidentiary showing meets the extremely high standard necessary for a successful claim of presumed prejudice. We conclude that the district court’s finding to the contrary is clearly erroneous, and that any decision to the contrary would be manifest error and would not be supported by the record. Accordingly, the decision of the district court is reversed and the case is remanded to the district court with instructions to issue the writ of habeas corpus conditioned on the state’s right to retry the petitioner within a reasonable time.
REVERSED and REMANDED.
Additional facts are noted in Coleman v. State, 237 Ga. 84, 226 S.E.2d 911, 913-14 (1976), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977).
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209.
The record does not contain a few of the issues of The Donalsonville News that were published between the commission of the crimes and the petitioner’s trial. We assume that these issues are not a part of the record because they contained no prejudicial information concerning the petitioner’s case. We make the same assumption with respect to the missing issues of the other relevant newspapers.
News reports conflict on the subject of which of Governor Carter’s relatives attended the funeral. The Atlanta Constitution reported that his mother, Mrs. Lillian Carter, attended. See p. 1519, infra.
The page on which the article appeared cannot be ascertained from the record.
The page on which the article appeared cannot be ascertained from the record.
The page on which the article appeared cannot be ascertained from the record.
The page on which the article appeared cannot be ascertained from the record.
The record contains no articles from The Dothan Eagle subsequent to the September 28 edition mentioned above. The change of venue hearing was held on September 27.
Articles appearing in The Atlanta Journal and The Atlanta Constitution are discussed together.
Pages on which many Atlanta Journal and Atlanta Constitution articles appeared cannot be ascertained from the record. Page citations are made when available.
The state argues that the actual distribution of the September issue of Front Page Detective in Seminole County may have been less than this because residents from other counties may have purchased an unspecified number of the magazines from Seminole County merchants. It seems equally plausible, however, that Seminole County residents may have purchased copies of the magazine from merchants outside Seminole County. Moreover, except for the article’s inflammatory title and subtitle, the substance is in most respects cumulative of publicity which clearly saturated the community. In any event, to be conservative, we have discounted the reported circulation and our reliance on the article.
In evaluating each element of the publicity and the degree of its contribution to the totality thereof, we have endeavored to take into consideration the degree to which the particular element was widely publicized or not. In this vein, we have accorded no weight to the November issue, given its removal from the shelves.
The tapes of television broadcasts made during the relevant period were unavailable because the respective television stations did not retain copies of the tapes beyond a period of one to two years. In the state habeas hearings, the editor of The Albany Herald testified that "the electronic media played ... [the case] very high." Another reporter with the United Press International testified that as regards UPI wire services, the broadcast wire service stories, designed for radio and television, and the newspaper wire stories concerning the Alday case were “factually the same." Supp. Record on Appeal at 504. Similarly, Mr. Gilbert Kelly, owner of the local radio station, testified that he used the UPI wire reports in his station’s coverage of the events. Deposition of Gilbert M. Kelly, at 10. Since no media source that we have examined was entirely nonprejudicial, and all carried approximately the same material, it would be reasonable to assume, although we need not do so, that television stations also broadcast prejudicial information concerning the petitioner. We need not make any assumptions concerning the content of television broadcasts because the record discloses the other sources which clearly saturated the community with highly prejudicial publicity. We also note that the state is not entirely without fault as regards the unavailability of the television transcripts. At the time of petitioner’s state habeas hearing, the state habeas court’s subpoena power extended only to within 150 miles of the hearing or trial situs. Oral depositions were also precluded because the petitioner was indigent, and the state habeas court refused to provide the funds necessary for a court reporter to transcribe the depositions. Finally, in federal district court, the state opposed the petitioner’s attempt to secure an evidentiary hearing, and this court was forced to remand the case to the district court to allow the petitioner an opportunity to make an evidentiary showing with respect to pretrial publicity. Coleman v. Zant, 708 F.2d 541, 548 (11th Cir.1983). Thus, the ensuing delay cannot be deemed to be entirely of the petitioner's own making. In this regard, we note that the state makes no argument based on any alleged delay by petitioner.
Although this is a significant concession from a witness who was even more "unfriendly” to petitioners than other witnesses (most of whom were understandably unfriendly), since Mr. Nichols, as clerk, actually sat through the earlier trials, his tendency to prejudge naturally would have been greater than that of the general public. On the more relevant issue of the opinions of others in the community that he might have heard, Mr. Nichols was more equivocal, although he did "assume that they felt like the punishment was just,” and he did say that community sentiment was that the guilty parties should be punished and that the people wanted "justice to be done." Id. at 233. Moreover, earlier in his testimony Mr. Nichols had refused to affirm that the news accounts before trial had given the impression that Coleman, et ak, were guilty; he would acknowledge only the impression that they were "accused" and that they were "good suspects.” Id. at 227-28. Mr. Nichols’ testimony is sufficiently equivocal that Coleman cannot place much reliance on it.
Mr. Montgomery also testified that he did some investigative work in Seminole County in connection with a story written five years after the crimes occurred. Mr. Montgomery interviewed Mr. E.A. in connection with his story. According to Mr. Montgomery, Mr. Alday said "that some individuals — he didn’t say who they were, as I recall wouldn’t say who they were — but some individuals came to him that week after the defendants had been captured in West Virginia and had told him something to the effect that, you know, you give the word and this quote — I remember the direct quote — said something, if you give the word, we’ll take those boys when they're brought back for arraignment. And he said that 'I told them not to, I talked myself — as I recall, he said something like, ‘I talked myself blue in the face’ and said that 'society, the courts had to be given a chance.’ ” 4th Supp. Record on Appeal, vol. 3 at 109-10. We place no reliance on this post-conviction revelation.
The law of this circuit has treated the presumed prejudice issue as a mixed question of fact and law. United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980); United States v. Williams, 523 F.2d 1203, 1208 (5th Cir.1975).
Although beside the point in light of our analysis, it is clear from the previous appeal in this case, Coleman v. Zant, 708 F.2d 541 (11th Cir.1983), that the "fairly supported by the record” standard would be inapplicable. Because material facts were not adequately developed at the state court hearing, and because petitioner was unable to adduce live testimony due to state procedural limitations and lack of funds, there is little doubt that the state court hearing was not full and fair. Id.
In view of our disposition of the case, we need not decide whether the state should be deemed to have waived any argument that the issue is one of pure fact, because of the state's concession in its brief that the issue is a mixed question of fact and law. See Supplemental Brief filed June 24, 1985, at 17.
The state suggests there is contrary evidence, noting that some individuals made appeals for a fair trial for the four suspects. However, these appeals are subject to question. Almost all of the appeals for a fair trial were made in a context of an effort to calm down the community to avoid the fear of mob violence, or in a context of a desire that the trials be held in Seminole County and not transferred elsewhere, or in a context of following all the procedural steps, thus equating a fair trial with one in which the procedural steps were followed even if the outcome were a foregone conclusion. See editorial, Donalsonville News, May 2, 1973, supra at 11.
Because of our disposition of the case, we need not address the argument that the district court on remand erred in excluding the proffer of expert testimony by Dr. Nobles analyzing the pretrial publicity.
Although the defendant's televised confession in Rideau was not admitted in evidence at trial, oral and written confessions made on the night of his arrest were admitted in evidence. See Rideau, 373 U.S. at 730, 83 S.Ct. at 1421 (Clark, J., dissenting).
In Murphy v. Florida, 421 U.S. 794, 800 n. 4, 95 S.Ct. 2031, 2036 n. 4, 44 L.Ed.2d 589 (1975), the Supreme Court distinguished "mere familiarity with the petitioner or his past” from an "actual predisposition against him.” The Court also noted the distinction between "largely factual publicity” and "that which is invidious or inflammatory.” In Murphy, the Supreme Court found that the general community (metropolitan Dade County) atmosphere was not inflamed and that the publicity, which itself was largely factual in nature, had occurred almost entirely at least seven months before trial. By contrast, the instant record reveals a small rural county barraged with prejudicial publicity continuing up to the time of the trial, as well as other evidence, all as described in the text, supra, inescapably reflecting an atmosphere of predisposition as to the guilt and sentence. The actual trial in this case was conducted by Judge Geer with decorum and dignity. Thus, there was no "circus atmosphere” which might have aggravated the atmosphere generated by the pretrial publicity, as in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). To the contrary, the trial atmosphere here was a positive contribution to the totality of the circumstances.
The question could also be posed as one of whether harmless error analysis should apply to the petitioner’s change of venue claim. In its opinion on direct appeal, the Georgia Supreme Court noted that one reason for concluding that the trial judge did not abuse his discretion in denying the motion for a change of venue was that the state presented overwhelming evidence of the petitioner’s guilt. The court also suggested that any error that may have existed would have been harmless because "no other verdict could have reasonably been returned by a jury regardless of the locale of the trial.” Coleman v. State, 237 Ga. 84, 226 S.E.2d 911, 918 (1976), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977). However, the constitutional guarantee of a fair trial before an impartial jury is a fundamental constitutional right which cannot be the subject of harmless error analysis. See Rideau, supra (implicitly so holding, since there was overwhelming evidence of Rideau’s guilt); Irvin v. Dowd, 366 U.S. at 722, 81 S.Ct. at 1642 (quoted in text infra). Moreover, as pointed out in the text, Georgia’s sentencing scheme, which vests in the jury absolute discretion to grant mercy for any reason, renders it virtually impossible to apply the harmless error concept to the sentencing phase on the basis of overwhelming evidence.
We do not read Rideau to imply that the voir dire cannot rebut a presumption of prejudice. The Supreme Court held that due process required that the defendant be granted a change of venue "without pausing to examine a particularized transcript of the voir dire examination of the members of the jury.” 373 U.S. at 727, 83 S.Ct. at 1419. It might be argued that the threshold showing required to presume prejudice is so high that any rebuttal is inconceivable. However, without expressly deciding the issue, we decline to read Rideau in this fashion, see Mayola v. Alabama, 623 F.2d 992, 1000 (5th Cir.1980) (dicta) (“Rideau did not go so far as to indicate that voir dire had no role in the paradigm of presumptive prejudice”); Pamplin v. Mason, 364 F.2d 1, 6 n. 9 (5th Cir.1966), and we assume that there can be such a rebuttal.
An example illustrating the inadequacy of the voir dire occurred in the companion case involving Dungee. See Isaacs v. Kemp, 778 F.2d 1482 (11th Cir.1985), published simultaneously with this opinion. The voir dire of juror H. was conducted by the parties, including Dungee’s counsel, in a eonclusory manner, as in this case, not conducive to eliciting the existence of exposure to prejudicial publicity or the existence of actual prejudice. No evidence of actual prejudice was elicited, and H. sat as one of the twelve jurors in Dungee’s case. However, in a later evidentiary hearing, it was disclosed that juror H. had actually sat through most of the trial of Carl Isaacs, which trial took place in the week preceding Dungee’s. It was established that juror H. heard Billy Isaacs testify in the Carl Isaacs trial (which testimony also implicated Dungee) and thus had been exposed to the most damaging evidence against Dungee before Dungee’s trial ever began.
No one familiar with the facts of this case and the overwhelming evidence of guilt could fail to have sympathy for the prolonged suffering of the families of these victims. The fatal error of trying this case in Seminole County was not their decision. Similarly, the unwarranted delay in the final disposition of this matter is not their fault. However, under the law it is not relevant to the issues before us (and no one has suggested it is) how the responsibility for that delay is allocated or shared among the petitioner, the state (see note 14 supra) and the system itself. Moreover, it is of small consolation to them that more recently there are beginning to be some improvements in the system itself with respect to such delay. Also the law requires that even the obviously guilty are entitled to a fair trial. Minimal standards of due process require a fair trial "regardless of the heinousness of the crime — [or] the apparent guilt of the offender.” Irvin v. Dowd, 366 U.S. at 722, 81 S.Ct. at 1642.
Carl J. ISAACS and George Elder Dungee, Petitioners-Appellants, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. Carl J. ISAACS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. Wayne Carl COLEMAN, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. George Elder DUNGEE, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee.
Nos. 82-8017, 85-8277, 82-8310 and 85-8202.
United States Court of Appeals, Eleventh Circuit.
Jan. 31, 1986.
[OPINION BY HILL, Circuit Judge, type=rehearing]
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinions December 9, 1985, 11 Cir., 1985, 778 F.2d 1482, 778 F.2d 1487).
The Petition for Rehearing is DENIED and the Suggestion for Rehearing En Banc is also DENIED.
HILL, Circuit Judge,
dissenting from denial of rehearing en banc, in which FAY, Circuit Judge, joins:
The court has ordered that these cases not be reheard en banc. From that order, I respectfully dissent.
I do not presume to dissent from the panel’s judgments ordering that the writs be granted in these cases. Had we proceeded, en banc, to the further analysis I suggest below, the judgments might well have been the same. I would make no judgment on the merits absent counselling which should be offered to the full court. In my view, however, the full court could and should take the opportunity that these cases provide to clarify an area of constitutional law that is presently murky.
I have little doubt that the state court should have ordered a change of venue in these cases. The administration of justice must be even-handed and should be so perceived. Were we considering these cases on direct appeal from convictions in a federal court, I have little or no doubt that, in the exercise of our supervisory power, they should be reversed. In these habeas cases, however, we are required to determine whether state court proceedings were constitutional — nothing more.
It is clear to me that the panel undertook to exercise just this limited function. The panel obviously labored long and hard in the review of a massive record. The thorough re-creation of the publicity preceding the trials is a tribute to the court and to counsel. The judgment granting the writs rests upon the particular facts of these particular cases. We should, I submit, provide an analysis which would be helpful in future cases. Publicity — and the community feelings thereby expressed and engendered — should be more thoroughly analyzed for its constitutional significance than has been done in these cases or was done in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), the leading authority thus far in the field.
The media plays an important role in our free society. I doubt that it would be contended that a well-informed forum is one that cannot conduct a constitutional criminal trial. When, if ever, does the accurate reporting of fact offend the administration of justice? I suppose that responsible media organizations and people would like to know. Clearly, judicial officers dedicated to the provision of fair trials would like to know. These issues are presented in these cases, and I regret our decision not to undertake a more helpful analysis.
The intensive review detailed in the panel opinion reveals several distinct categories of public reporting of what I take to be essentially accurate facts. Their accuracy, at least, is not questioned. I touch on a few of those categories. I suggest that we could and should analyze them separately.
The Crime
Initially, the media reported how the law had been broken. Six members of the community had been systematically murdered. One had, before her execution, been repeatedly raped. Much of what was said then and thereafter concerned the details of the criminal acts which had taken place. The crimes were horrible, and those who read about them or heard about them and reported upon them were outraged.
I submit that it is meet and proper that our society and its members be outraged at the commission of crimes such as were committed by the petitioners in these cases. A community ought not be constitutionally disqualified as a forum for the administration of criminal justice because its people are conscious of crimes committed in the community and outraged by them. It does not offend the Constitution for public awareness of the consequences of crime to be heightened by reports of crimes— whether multiple murders, distribution of controlled substances, or driving while under the influence of drugs or alcohol. We ought never leave the impression that the Constitution demands a forum where the people are not biased or prejudiced against criminal conduct. A juror need not feel “neutral” about whether or not people should rob banks in order to sit in judgment on one accused of bank robbery.
These cases could never be tried before a jury unaware of the horror of the offenses for which the petitioners were on trial. The facts of the crime will inevitably be made known to the jurors at any trial, anywhere. Moreover, I find nothing improper in concern, even anger, on the part of potential jurors about crimes such as those at issue in this case. The publicity reporting the murders of the members of the Alday family and the strong feelings of outrage in the community over those crimes should be treated differently than other types of publicity that might more plausibly have affected the outcomes of the trials. I believe this category of publicity should be given little, if any, weight in determining whether a criminal defendant has received a fair trial. I acknowledge that our panel apparently considered this category only to the extent that it found it to be evidence of prejudgment, contributing to a conclusion that the community was so inflamed that a fair trial could not be had. That may be proper. Yet, inasmuch as no jurors can serve in these cases, anywhere, without being immediately exposed to knowledge of the crimes, I feel that the full court should have reheard and, upon rehearing, determined whether or not any weight should be given to this community bias against crime.
The Accused
While bias and prejudice against crime does not, in my view, disqualify a community from administering justice in a case in which the state has accused an individual of committing a crime, bias or prejudice against the accused stands on a different footing. We should have, therefore, examined publicity about the accused — the petitioners here — as a separate category of publicity. Further, I would identify and distinguish within that category two subcategories of publicity — (1) information that later is made known to the jury at trial, and (2) information that is not.
(1)
It appears that, in the discharge of their responsibility, the media reported diligently upon the work of law enforcement officials investigating the crimes, including the apprehension of those suspected of committing them. Evidence leading to the arrests and indictment of these individuals was made public as it came to light. In this area, a tension often develops between free press and fair trial concerns. It might better serve our desire to ensure the clinical sterility that we feel is most likely to result in a fair trial to allow no pretrial reporting of the results of ongoing criminal investigations. Were that so, however, the people would suffer a lack of valuable information about whether public officials were discharging their responsibilities in a satisfactory manner. We tend in this nation to trust and believe in the value of an informed citizenry. In this case, the tension between free press and fair trial values was great, because the information obtained by law enforcement officials strongly supported the thesis that those arrested were in fact guilty.
We should have analyzed and evaluated the significance of this kind of publicity as a subcategory of publicity that is distinct in important respects from the category first discussed above. I apprehend that we should have done so with this fact in mind: Most of that which was reported, second hand, by the media was later properly reported, in detail, by those with first hand knowledge of the facts, as testimony before the juries that heard the cases; inevitably, it will be so reported to any jury, anywhere, if the cases are retried. It is entirely proper for the jury to be made aware of this kind of information. It is its wide dissemination in advance of trial that is perceived to be the problem. Such publicity may be likened to a premature opening statement made by a prosecutor who says what the state will prove, but which is not proved save by evidence properly admitted at trial. Such pretrial publicity should be appraised as a separate category from that which does not bear on the guilt or innocence of the defendants. Only after carefully examining each such item of publicity, aided by counsel, should we determine the weight it should be accorded in deciding whether a fair trial has been denied, perhaps placing heavy emphasis on whether the admitted information was disputed at trial. Here, again, the panel considered publicity in this category to the extent that it felt that the publicity demonstrated community prejudgment. The full court, by applying the analysis I suggest, could have attributed appropriate weight to it for future reference.
(2)
We should have taken particular note of that distinct subcategory of potentially prejudicial publicity concerning one or more of the defendants that was not admitted as evidence at trial. One defendant was said to have confessed to an earlier murder that occurred in Pennsylvania or Maryland. Unlawful earlier activities of the defendants said to have constituted a “crime spree” were reported. Although evidence of these events might properly have been introduced to show a motive for murdering the Aldays, who might otherwise have aided in the earlier apprehension of petitioners,, or might have been introduced for some other reason at the sentencing hearing, it appears that they were not. Fair trial-free press tensions are most apparent in this area. When the law demands that certain facts — because they are not material and might prejudice the defendant, or because they have been suppressed to vindicate important constitutional rights — be kept from jurors to insure a fair trial, yet they are widely reported in media that is read, heard and watched by potential jurors, a problem exists. The problem is not addressed by restraining the media; it is sometimes addressed by change of venue. Usually it is appropriately handled by proper instructions of the court to the jury, confining the jurors to the evidence admitted at trial. We should afford this subcategory of publicity the greatest weight in determining whether individuals such as the petitioners in this case have been denied a fair trial.
Precautions
Neither the media nor the state court was unaware of fair trial concerns. As the panel observed, at least one widely read newspaper reminded its readers in a front page editorial of the importance of ensuring that the defendants received a fair trial. The panel also notes that the trial in Coleman, and presumably in the other cases, was conducted “with decorum and dignity.” 778 F.2d at 1540 n. 23. The trial court judge put squarely to the venirepersons the question whether they could sit on the jury without bias or prejudice against the accused, and only those who, under oath, responded that they could do so were found qualified to serve. As the panel recognized, this kind of voir dire is a time-honored and valued ingredient in our jury system; it ought not often be found insufficient. The full court should have given these precautions by the press and the trial court appropriate weight in the overall analysis.
Conclusion
In short, I feel strongly that the full court should have reheard those cases. The authority for the “presumed prejudice” analysis that was applied in this case is the Supreme Court’s decision in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). We have failed to take advantage of the opportunity provided by these cases to articulate a set of guiding principles to engraft upon the rather bare bones of that case. While the first amendment gives much license to the media, I apprehend that responsible men and women in that profession would be pleased to know our views in order that free press-fair trial tensions, although perhaps inevitable, might be lessened. Judges dealing with cases which attract media attention ought to have the benefit of an analysis they might adopt.
Had we reheard the cases, I would reach any final conclusions about this case only after counselling in the form of en banc briefs and argument. Presently, I apprehend that I would find nothing to criticize in reports of public outrage about the crime; little to criticize in factual reports of the investigation; much to concern me in widespread reports of information that is detrimental to any defendant and is not admissable at trial or sentencing; much to commend in public reminders of the importance of ensuring a fair trial; and much to credit in the voir dire responses of the jurors under oath. Nevertheless, as stated before, I am certainly not prepared to say that I would ultimately conclude that writs of habeas corpus ought not be granted in these cases.
The panel has, sincerely and with commitment to the Constitution, done much. The full court should have finished the job they have begun.
; Dissents from orders denying rehearing en banc have proliferated in our court, see, e.g., Bowen v. Kemp, 778 F.2d 623 (11th Cir.1985); Stephens v. Kemp, 722 F.2d 627, 628, 629 (11th Cir.1983); Jaffree v. Wallace, 713 F.2d 614, 615 (11th Cir.1983); United States v. Hastings, 704 F.2d 559, 560 (11th Cir.1983); Woodson v. Schweiker, 671 F.2d 118 (5th Cir.1982); Debra P. v. Turlington, 654 F.2d 1079, 1080, 1086 (5th Cir.1981); Gates v. Collier, 641 F.2d 403 (5th Cir.1981); Dearborn Marine Service, Inc. v. Chambers & Kennedy, 512 F.2d 1061, 1062 (5th Cir.1975); United States v. Miller, 508 F.2d 588, 589 (5th Cir.1975); Allen v. City of Mobile, 466 F.2d 122, 131 (5th Cir.1972); Novak v. Beto, 456 F.2d 1303, 1304 (5th Cir.1972), and in other courts of appeals, see, e.g., Prejean v. Maggio, 765 F.2d 482, 487 (5th Cir.1985); Dronenburg v. Zech, 746 F.2d 1579, 1581 (D.C.Cir.1984); Williams v. Nix, 700 F.2d 1164, 1175 (8th Cir.1983); Boraas v. Village of Belle Terre, 476 F.2d 806, 824 (2d Cir. 1973); Lee Fook Chuey v. Immigration & Naturalization Service, 439 F.2d 244, 251 (9th Cir.1971), to the point where the practice may be said to have become institutionalized. Its growth appears to have coincided with the increase in the number of published dissents from orders denying certiorari in the Supreme Court. Not all judicial officers have found the latter appropriate. See Singleton v. Commissioner of Internal Revenue, 439 U.S. 940, 942, 99 S.Ct. 335, 337, 58 L.Ed.2d 335 (1978) (opinion of Stevens, J., respecting the denial of the petition for writ of certiorari). When the court has been polled on a petition for rehearing en banc, and a majority votes against, it may be appropriate that a simple order reciting that fact be the end of the issue. The proposition has sufficient merit that, were the practice of dissenting from such orders not now commonly accepted, I have no doubt that I would not initiate it.
I think it important to note here a truism that is easily forgotten — that the Constitution only demands of a criminal trial that constitutional rights, including the right to due process of law, be respected. The right to a fair trial is only a right to due process of law, and does not include a right to advantages at trial that might aid a particular criminal defendant a great deal simply because of the overwhelming evidence against him. Thus a trial may appear very one-sided but yet be a fair trial, and not offend the Constitution, as long as the defendant is afforded the basic protections of due process of law.
Strictly speaking, one can easily imagine a case in which publicity reporting certain facts of an incident that are entirely unrelated to a particular defendant might aid the prosecutor and prejudice the defendant on trial, by convincing the community from which the jury is drawn that a crime in fact occurred when the corpus delicti is in doubt. In the cases here under investigation, however, there can be no question that the prosecutor could not have been materially aided in proving the corpus delicti by the widespread publicity reporting the facts of these murders.
The panel opinion in Coleman acknowledged that "there was, in fact, overwhelming evidence of the petitioner’s guilt adduced at trial.” Coleman v. Kemp, 778 F.2d 1487, 1541 (11th Cir. 1985). This included principally the testimony of Billy Isaacs and fingerprint evidence that placed the petitioners at the scene of the crimes.
It is not contended that these reports were not even-handed. That is, the media did not report information tending to show guilt and suppress that tending to exonerate the defendants. There was simply none of the latter to report, and the defendants offered none at trial.
The editorial read in part as follows: There is a wide difference in the question of whether the people here could give the suspects a fair trial, and in our wanting to see the guilty ones punished and removed from being able to commit the same outrages again, a few years from now, on other innocent people. But our people want to be sure that the suspects now being held in jail are the ones who committed the crimes. We don’t want to see four innocent men punished, if they should turn out to be innocent of the charges against them, and the other charges to come. The editorial criticizes the "few screwballs among us who get a thrill out of talking dumb and sounding off about what all they’d like to do to the four men." It also notes that the surviving Aldays wished .for justice to run its due course. The editorial concludes as follows: And there’s no room for error here. The only thing any kind of mob action, or inciting troublesome thoughts can bring is more sorrow. Think about this often, as the long, drawn-out trial days go slowly along. It’s a hard fact of life, and there's no profit in forgetting it. The law must be obeyed. As the panel opinion notes, “[t]he district court viewed [this] front-page editorial in the May 24 Donalsonville News as typical of the publicity surrounding the crime.” Coleman v. Kemp, at 1492. .. It is suggested in the panel opinion in Coleman that the question there was not adequately put. Coleman v. Kemp, at 1541-43. Many potential jurors, however, candidly acknowledged their disqualification for bias. They apparently understood what they were being asked.
44061.
44062.
44063.
ISAACS v. THE STATE. DUNGEE v. THE STATE. COLEMAN v. THE STATE.
(355 SE2d 644)
[OPINION BY Per curiam. type=majority]
Per curiam.
Appellants Isaacs, Dungee, and Coleman are accused of murdering six members of a family in Seminole County in 1973. They were convicted of the murders and sentenced to death, but habeas relief was granted by the United States Court of Appeals for the Eleventh Circuit. Their cases have been remanded, and the state is again seeking the death penalty. All of the judges from the Pataula Judicial Circuit, which includes Seminole County, recused themselves, and a superior court judge from another judicial circuit, the Honorable Walter C. McMillan, Jr., has been assigned to conduct their trials. The instant appeals concern motions to recuse which each of the co-defendants has brought against Judge McMillan. Another superior court judge, the Honorable A. Blenn Taylor, Jr., was assigned to hear the motions to recuse, and after conducting an evidentiary hearing Judge Taylor entered an order denying the motions. Appellants applied to this court for interlocutory review, which we granted. We reverse the judgment denying the motions to recuse.
At the commencement of the recusal proceedings Judge McMillan attempted to participate as a party defendant, but Judge Taylor disallowed his attempt and excluded him from the courtroom under the rule of sequestration. An attorney whom Judge McMillan had retained as counsel was allowed to stay in the courtroom. During the remainder of the trial the attorney observed the proceedings, attended bench conferences, conferred with attorneys for the state, and supplied those attorneys with suggested questions to pose to witnesses. The appellants contend that Judge McMillan’s impartiality may reasonably be questioned based on this conduct. See Code of Judicial Conduct, Canon 3 (C) (1).
Our determination of this issue depends on what is the proper role of a judge at whom a motion to recuse is directed once the motion has been reassigned for hearing. The procedure for determining recusal motions was adopted in State v. Fleming, 245 Ga. 700 (267 SE2d 207) (1980), and later was codified in Uniform Superior Court Rule 25, eff. July 1, 1985. However, Rule 25 is silent on whether the challenged judge may participate in the hearing. As there is no express guideline, it is our task to fashion an appropriate rule based on the public policy which Rule 25 and the Code of Judicial Conduct are designed to serve.
There are strong arguments against allowing a judge to participate as a party defendant. The fact that a judge’s impartiality might reasonably be questioned is sufficient for disqualification. Birt v. State, 256 Ga. 483 (4) (350 SE2d 241) (1986); King v. State, 246 Ga. 386, 390 (7) (271 SE2d 630) (1980). A judge may not become so involved in a controversy that his objectivity could reasonably be questioned. See In re Crane, 253 Ga. 667 (1) (324 SE2d 443) (1985) (contumacious conduct directed at a judge). A judge has no interest in sitting on a particular case; at most, his interest lies in protecting his own reputation. His efforts at defending himself against a motion to recuse will inevitably create an appearance of partiality. One reason is that if he defends himself he becomes an adversary of the movant for recusal. This adversarial posture may create an antipathy which persists after the motion to recuse is denied.
Decided April 29, 1987
Reconsideration denied June 4, 1987.
Jackson & Schiavone, G. Terry Jackson, Michael G. Schiavone, for appellant (case no. 44061).
Stephen B. Bright, Carla J. Friend, Michael Kennedy McIntyre, for appellant (case no. 44062).
Kenneth Kondritzer, Charles C. Grile, for appellant (case no. 44063).
Charles M. Ferguson, District Attorney, William B. Hill, Jr., Susan V. Boleyn, Special Assistant District Attorneys, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, for appellee.
We recognize that judges may be sorely tempted to respond to motions to recuse which they perceive as gratuitously defamatory. We also recognize that a judge who actively resists recusal may be fully capable of even-handedly presiding if the motion is denied. Nevertheless, we think that these factors are heavily outweighed by the necessity of preserving the public’s confidence in the judicial system. We therefore hold that after a legally sufficient motion to recuse has been assigned for hearing, the judge against whom the motion is directed may not oppose the motion.
In the cases under consideration, Judge McMillan was not a party per se to the motions to recuse, but his attorney actively opposed the motions. Because of this activity, Judge McMillan’s impartiality might reasonably be questioned. Accordingly, Judge Taylor erred in denying the motions to recuse, and the cases must be remanded for reassignment to another judge. The remaining contentions of the appellants are without merit.
Judgments reversed.
All the Justices concur. Weltner, J., disqualified.
Spivey, Carlton & Edenfield, J. Franklin Edenfield, amicus curiae.
Isaacs v. State, 237 Ga. 105 (226 SE2d 922) (1976); Dungee v. State, 237 Ga. 218 (227 SE2d 746) (1976); Coleman v. State, 237 Ga. 84 (226 SE2d 911) (1976).
Isaacs v. Kemp, 778 F2d 1482 (11th Cir. 1985) (Isaacs and Dungee), reh. den. 782 F2d 896 (1986); Coleman v. Kemp, 778 F2d 1487 (11th Cir. 1985), reh. den. 782 F2d 896 (1986).
See generally Comment, Disqualification of Federal Judges for Bias or Prejudice, 1978, 46 U.Chi.L.Rev. 236; Note, Disqualification of a Federal District Judge for Bias — The Standard under Section 144, 1933, 57 Minn.L.Rev. 749; Note, Disqualification of Judges and Justices in the Federal Courts, 1973, 86 Harv.L.Rev. 736; Note, Caesar’s Wife Revisited — Judicial Disqualification after the 1974 Amendments, 1977, 34 Wash. & Lee L.Rev. 1201; Comment, Disqualification of Federal District Judges — Problems and Proposals, 1976, 7 Seton Hall L.Rev. 612; Note, Judicial Disqualification in the Federal Courts: A Proposal to Conform Statutory Provisions to Underlying Policies, 1982. See also 13A Wright, Miller & Cooper, Federal Practice and Procedure, §§ 3541 to 3553 (2d ed. 1984 and 1986 pocket pt.).
45101.
ISAACS v. THE STATE.
(364 SE2d 567)
[OPINION BY Clarke, Presiding Justice. type=majority]
Clarke, Presiding Justice.
The sole issue in this case is whether the trial court erred in denying appellant’s plea in abatement and motion for acquittal pursuant to OCGA § 17-7-53.1.
The state argues that this appeal should be dismissed for lack of jurisdiction because the court order is not a final judgment within the meaning of OCGA § 5-6-34 (a) and because no certificate for immediate review has been granted by the trial court. The state further insists that this appeal does not come within the court’s ruling concerning the immediate appealability of the denial of a double jeopardy plea in Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). Here, we deal not with double jeopardy, as in Patterson, but judicial economy is best served by holding that the order complained of is subject to direct appeal as a final order.
Decided February 5, 1988.
Jackson & Schiavone, G. Terry Jackson, Michael G. Schiavone, for appellant.
A Seminole County Grand Jury indicted Isaacs in 1973 for six counts of murder as well as kidnapping, rape, armed robbery, and burglary. After his conviction and a subsequent grant of new trial by the federal courts, Seminole County again indicted Issacs for the same crimes in 1986. Following a change of venue, the trial court quashed all the Seminole County indictments and a Houston County Grand Jury indicted Issacs for six counts of murder on August 17, 1987. Isaacs filed a plea in abatement/motion for discharge and acquittal pursuant to OCGA § 17-7-53.1. He appeals the trial court’s denial of the motion and plea.
OCGA § 17-7-53.1 provides that if upon the return of two true bills of indictment or presentment the indictments or presentments are quashed for the second time by a ruling on a motion, demurrer, special plea or exception, or other pleading of defendant or upon the court’s own motion, this shall be a bar to further prosecution of defendant for the offenses charged in the indictments. Appellant insists that this statute, which was effective July 1,1987, before the quashing of the two Seminole County indictments, is clear on its face and requires the reversal of the trial court’s denial of appellant’s motion. He contends that the trial court was bound to follow the mandate of the statute and that the state is barred from proceeding upon the Houston County indictment returned on August 17, 1987.
However, Section 2 of the uncodified sections of the act, Ga. L. 1987, p. 529, provides that the act shall apply to indictments or presentments returned on or after the effective date of July 1,1987. Since the indictments quashed were all returned before that date, appellant is not within the group of defendants who may claim the benefit of the statute.
Appellant claims that the application of the statute only to indictments quashed on or after July 1, 1987, deprives him of equal protection and due process in that it creates an arbitrary category of defendants who will benefit from OCGA § 17-7-53.1. Because the statute treats all persons indicted on or after July 1, 1987, alike and because the statute presents no equal protection or due process problems, the constitutional claims of appellant do not provide ground for relief.
Judgment affirmed.
All the Justices concur. Weltner, J., disqualified.
Charles M. Ferguson, District Attorney, Michael J. Bowers, Attorney General, William B. Hill, Jr., Susan V. Boleyn, Senior Assistant Attorneys General, Stephen B. Bright, Michael Kennedy McIntyre, for appellee.
46719.
ISAACS v. THE STATE.
(386 SE2d 316)
[OPINION BY Hunt, Justice. type=majority]
Hunt, Justice.
This is a death penalty case. The defendant, Carl J. Isaacs, was originally convicted in Seminole County and sentenced to death in 1974. His conviction and sentence were affirmed on direct appeal to this court. Isaacs v. State, 237 Ga. 105 (226 SE2d 922) (1976). However, the Eleventh Circuit Court of Appeals granted habeas relief. Isaacs v. Kemp, 778 F2d 1482 (11th Cir. 1985). Isaacs was retried in Houston County Superior Court and again was convicted and sentenced to death. We affirm.
1. In May of 1973, Carl Isaacs escaped from a Maryland penal institution and, accompanied by his younger brother Billy Isaacs, his half-brother Wayne Coleman and a friend, George Dungee, drove to Florida. On the afternoon of May 14, 1973, they were in Seminole County, Georgia, and their car was almost out of gas. They thought they saw a gas pump behind the rural mobile home belonging to Jerry Alday and Mary Alday and stopped to investigate it. They discovered there was no pump; however, the trailer was empty, and they decided to burglarize it. Dungee remained in the car while the defendant and Wayne Coleman entered the trailer. While they were inside, Billy Isaacs warned them two men were approaching in a jeep.
Jerry Alday and his father Ned Alday pulled in behind the trailer, unaware that it was being burglarized. Carl Isaacs met them and ordered them inside at gunpoint. After their pockets were emptied, Jerry Alday was taken into the south bedroom of the trailer while Ned was taken to the north bedroom. Carl Isaacs shot and killed Jerry Alday, and then both he and Coleman shot and killed Ned Alday.
Soon afterward, Jimmy Alday (Jerry Alday’s brother) drove up on a tractor, walked to the back door, and knocked on the door. Coleman answered the door, “stuck a pistol up in the guy’s face,” and ordered him inside. He was taken into the living room and forced to lie on the sofa. Carl Isaacs shot and killed him.
After Carl Isaacs went outside to move the tractor, which was parked in front of their car, Mary Alday (Jerry Alday’s wife) drove up. Carl Isaacs entered the trailer behind her and accosted her. Meanwhile, Chester Alday (Jerry Alday’s brother) and Aubrey Alday (Jerry Alday’s uncle) drove up in a pickup truck. Leaving Coleman and Dungee to watch Mary Alday, Carl and Billy Isaacs went outside to confront the two men, and forced them at gunpoint into the trailer. Once inside, Aubrey was taken to the south bedroom where Carl Isaacs shot and killed him, while Chester Alday was taken to the north bedroom and killed by Coleman.
Coleman and Carl Isaacs raped Mary Alday on her kitchen table. Afterward, they drove to a heavily wooded area several miles away where Mary Alday was raped again. Dungee killed her. They abandoned their car in the woods and took Mary Alday’s car, which they later abandoned in Alabama. They stole another car there, and were arrested a few days later in West Virginia, in possession of guns later identified as the murder weapons, and property belonging to the victims.
After his original trial, Carl Isaacs was interviewed by a film maker who was producing a documentary about the case. The defendant admitted shooting Jerry, Ned, Aubrey and Jimmy Alday, raping Mary Alday, and burglarizing the trailer. These admissions were introduced in evidence at the retrial.
Carl Isaacs was convicted of six counts of murder. The evidence supports the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. In his first six enumerations of error, Isaacs complains of the grand jury deliberations. Specifically, he contends that he was entitled to a grand jury free from exposure to pretrial publicity and that the trial court erred in refusing to voir dire the grand jurors extensively or to give them special instructions about their deliberations. He contends, in addition, that he should have been provided a transcript of the grand jury proceedings, that the indictment may have been based upon hearsay testimony and that the evidence was insufficient to support a true bill.
(a) We note:
Generally, in the absence of a controlling statutory provision, a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation or has even formed or expressed an opinion as to the guilt of the accused, or by his interest in a prosecution other than a direct pecuniary interest. [Footnotes omitted.] [38 AmJur2d 951, Grand Jury, § 7.]
Our Code provides for a change of venue in a grand jury criminal investigation “when it appears that a qualified grand jury cannot be had... .” OCGA § 15-12-82 (a). However, bias, prejudice, and exposure to pretrial publicity are not mentioned in the Code as possible grounds for disqualification of grand jurors. Moreover, the grand jury generally is entitled to act upon its own information, however acquired. See Groves v. State, 73 Ga. 205 (1884).
But assuming, without deciding, that remedial action may be necessary in some cases of alleged grand jury bias, we hold that the trial court’s response in this case was sufficient. First, the court quashed the Seminole County indictment after granting a change of venue, and Isaacs was indicted in Houston County. Second, before any evidence was presented to the Houston County grand jury, the court conducted a limited voir dire of the grand jury concerning possible bias and excused one grand juror who had signed a petition in connection with the case. There was no error.
(b) Relying upon United States v. Estepa, 471 F2d 1132 (2nd Cir. 1972), Isaacs contends it is improper to base an indictment on hearsay evidence. In Estepa, the defendant’s conviction was reversed and the indictment dismissed where the government introduced hearsay evidence in a manner that misled the grand jury into believing that it was first-hand evidence instead of hearsay. The reversal was not a consequence of the mere use of hearsay, but the misleading use of hearsay. Estepa, of course, is not binding authority in this state. See Conner v. State, 251 Ga. 113 (5) (303 SE2d 266) (1983). Moreover, “Estepa has not been met with great enthusiasm by the other courts of appeal.” Moore’s Federal Practice (2nd ed.), Vol 8 at 6-104. The rule in this state is:
[Wjhere ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged. [Felker v. State, 252 Ga. 351, 366 (2 a) (314 SE2d 621) (1984) (quoting Summers v. State, 63 Ga. App. 445 (3) (11 SE2d 409) (1940)).]
Accord Costello v. United States, 350 U. S. 359 (76 SC 406, 100 LE 397) (1956) (holding that a contrary rule “would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by the technical rules.” Id. 350 U. S. at 364).
A trial jury has found Carl Isaacs guilty beyond a reasonable doubt. Even if there was some error in the grand jury proceedings, the “verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendant! ] with the offenses for which [he was] convicted.” United States v. Mechanik, 475 U. S. 66, 67 (106 SC 938, 89 LE2d 50) (1986). Hence, any possible error has been rendered harmless.
(c) A defendant is not entitled to a transcript of the grand jury proceedings. Frazier v. State, 257 Ga. 690 (6) (362 SE2d 351) (1987).
3. In enumerations of error 7 through 13, Isaacs raises issues concerning the grand and traverse jury arrays.
On November 2, 1987, the trial court heard evidence on the defendant’s challenges to the jury arrays. The defendant contended, inter alia, that active-duty military personnel and their dependents are underrepresented on the grand and traverse jury lists in Houston County. At the conclusion of the hearing, the defendant asked that the evidence be held open so he could supplement his presentation. The court agreed to do so, ultimately setting December 28, 1987, as the deadline for supplementing the evidence on this issue.
At the December 28 hearing, the defendant asked for more time to “take the rough figures that we have been able to gather [as to the underrepresentation of military personnel] to get a qualified expert to put them in a statistical form that would be acceptable to the court and subject to cross-examination.” The defendant conceded that he planned to present no evidence that military personnel are a cognizable group, and the court refused to grant a further continuance on this issue.
(a) Citing Guest v. State, 186 Ga. App. 318 (1) (367 SE2d 105) (1988), Isaacs contends the court erred by setting a deadline for disposing of his jury challenges because (he says) a jury challenge is timely filed any time prior to voir dire.
We agree that in the absence of a timely trial court directive to the contrary, a challenge to the traverse jury array is timely filed any time before the voir dire begins. Guest v. State, supra. However, trial courts retain the discretion — and commonly exercise it — to set a time certain by which pretrial motions must be filed and heard. See, e.g., Rule 7.3 of the Superior Court Rules, Ga. Ct. & Bar Rules, p. 3-17. We do not find an abuse of discretion in this case. The issue was heard on November 2. The defendant had almost two additional months to supplement the record. We agree with the trial court “that the defense... had an adequate opportunity to support the motion.”
Even if the record had been held open, the defendant could not have prevailed absent proof, which he concededly did not plan to offer, that active-duty military personnel are a cognizable group. See, e.g., Willis v. Kemp, 838 F2d 1510 (I) (11th Cir. 1988). Moreover, although it may not be determinative of the cognizability issue, it is persuasive that active-duty military personnel are barred from federal jury service by 28 USC § 1863 (b) (6), and, to our knowledge, no court has ever found a violation of the fair cross-section requirement based upon this exclusion.
The trial court did not err by denying Isaac’s motion for continuance and by denying his challenges to the grand and traverse jury arrays. Frazier v. State, 257 Ga., supra at (2).
(b) The manner in which grand jury forepersons are selected in Houston County provides no basis upon which to reverse the defendant’s conviction or dismiss his indictment. Ingram v. State, 253 Ga. 622 (1 c) (323 SE2d 801) (1984).
4. We decline to reconsider our holding in Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988), concerning the effect of OCGA § 17-7-53.1.
5. OCGA § 15-12-164 is not unconstitutional for any reason asserted. See Skipper v. State, 257 Ga. 802 (8) (364 SE2d 835) (1988); Jefferson v. State, 256 Ga. 821 (4) (353 SE2d 468) (1987).
6. The appointment of assistant attorney general William Hill as a special assistant district attorney in this case was authorized under Rule 42.1 of the Uniform Superior Court Rules. Ga. Ct. and Bar Rules, p. 3-59. We perceive no conflict between Rule 42.1 and Article V, Sec. Ill, Par. IV of the Georgia Constitution. Cf. State v. Cook, 172 Ga. App. 433 (3) (323 SE2d 634) (1984).
7. Our death penalty laws are not unconstitutional for any reason alleged. The trial court did not err by refusing to appoint an additional attorney to assist the defendant in answering questions pursuant to the Unified Appeal Procedure. Blankenship v. State, 258 Ga. 43 (1) (365 SE2d 265) (1988). We do not agree with the defendant’s contention that giving him the opportunity “to raise questions or objections concerning his counsel’s assistance... .” Sliger v. State, 248 Ga. 316, 319 (282 SE2d 291) (1981), requires him “to make legal determinations that only a trained and experienced lawyer can do [sic]... .” Appellant’s brief at p. 158.
8. Isaacs filed a pretrial motion for bail, relying upon OCGA § 17-7-50, which provides that a defendant is entitled to bail as of right if he is not indicted within 90 days of confinement. Because Isaacs was indicted within 90 days of his original arrest, and because less than 90 days elapsed between the time the Seminole County indictments were quashed and Isaacs was reindicted in Houston County, OCGA § 17-7-50 plainly did not entitle Isaacs to bail as a matter of right. The trial court properly denied the defendant’s § 17-7-50 motion for bail.
Isaacs now argues that the trial court erred by “summarily” denying bail, pointing out that even if he was not entitled to bail as of right, under OCGA § 17-7-50, the superior court may grant bail in a capital murder case pursuant to OCGA § 17-6-1 (e), provided the court can make certain findings relative to the risk of allowing the defendant’s release on bail.
It is settled that “[a] court may... refuse bail in capital cases.” United States v. Salerno, 481 U. S. 739 (107 SC 2095, 2104, 95 LE2d 697) (1987). Given Isaac’s history of escapes and attempted escapes, his pretrial statement that he would continue trying to escape, and the “considered presumption of generations of judges that a defendant in danger of execution has an extremely strong incentive to flee,” United States v. Salerno, supra at 2110 (fn. 6) (Marshall, J., dissenting), the trial court would plainly have been entitled under OCGA § 17-6-1 (e) to deny bail on the record before it absent any compelling evidence to the contrary, which the defendant did not even try to present, since he did not invoke the provisions of OCGA § 17-6-1 at trial.
The trial court’s denial of bail was not error.
9. Isaacs was interviewed about this crime by television reporter Mark Piccard after the original trial but before the retrial. Isaacs stated that if he had it to do over, he would commit the crime again. The state offered this evidence at the sentencing phase of the trial to show the defendant’s lack of remorse.
Contrary to the defendant’s contention, the defendant’s remorse or lack thereof is a permissible area of inquiry during sentencing. Fair v. State, 245 Ga. 868 (4) (268 SE2d 316) (1980). Compare, cf., United States v. Reed, 882 F2d 147, 150-51 (5th Cir. 1989) (approving federal sentencing guidelines provision for reduction of sentence when defendant demonstrates “affirmative acceptance of personal responsibility” manifested by “sincere contrition” (emphasis supplied)).
Piccard’s testimony was not otherwise inadmissible. See Division 30, post.
10. Consistent with the requirements of the Unified Appeal Procedure, the district attorney stated before the defendant was arraigned that he intended to seek the death penalty. There is no requirement that this announcement be furnished in writing to the defendant. See Rule II (A) (1) of the Unified Appeal Procedure, Ga. Ct. & Bar Rules, p. 9-4.
11. Isaacs contends that exculpatory evidence known to the prosecution but unknown to the defense was suppressed. See Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).
Billy Isaacs was interviewed in West Virginia by the FBI on May 18, 1973. His statement was reduced by the FBI to a six-page typewritten summary. A page and a half of this summary describes the Seminole County murders that are the subject of this trial. The district attorney stated at trial that he was unaware Billy Isaacs had given a statement to the FBI until he testified in this trial.
Some courts have held
that the prosecution cannot respond to a specific request for clearly material and exculpatory material in the possession of some totally independent agency by simply noting that it has no control over that agency; the prosecution has an obligation to at least make a good faith effort to seek defense access to that evidence. [Emphasize supplied.] [LaFave and Israel, Criminal Procedure, Vol. 2, § 19.5 (1988 pocket part at 135).]
Even if that were the rule in this state, Isaacs did not make a specific pretrial request for statements given by Billy Isaacs to the FBI. Absent a specific request directing the prosecutor’s attention to such material, we will not impute to a Georgia prosecutor knowledge of evidence in the possession of the Federal government where the record shows no actual knowledge by the prosecutor that such evidence existed. United States v. Meros, 866 F2d 1304 (1) (11th Cir. 1989).
As for other information Isaacs contends was suppressed: A pretrial statement by co-defendant Coleman was not exculpatory; notes from which the official case report was made were cumulative of the information the defendant already had access to and do not create a reasonable doubt that did not otherwise exist; and the existence of a federal civil action concerning death-row inmate access to chaplain visits simply is not Brady material. See Williams v. State, 250 Ga. 463 (298 SE2d 492) (1983).
There was no Brady violation in this case.
12. The trial court properly denied the defendant’s request for disclosure of the confidential prison and parole file of Billy Isaacs, which the defendant claimed would be useful for impeachment purposes when Billy Isaacs testified. OCGA § 42-9-53; Potts v. State, 259 Ga. 96 (10) (376 SE2d 851) (1989); Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987).
13. In his 16th through 32nd (and part of his 11th) enumerations of error, Isaacs complains of the denial of funds.
Isaacs requested funds for an independent psychiatric evaluation; a pathologist; investigative assistance by a representative of the National Center on Institutions and Alternatives in Alexandria, Virginia; a statistician to help with his jury challenges; a fingerprint expert; a ballistics expert; and an investigator. The trial court granted funds for an independent psychiatric evaluation, and there is no issue about this request for funds. The court did not specifically award funds on any of the other requests, but did authorize the payment of $4000 to the defense, to use as it saw fit in the preparation and investigation of the case.
With these funds, Isaacs retained the services of Hans Selvog, the director of the Southeastern Regional Office for the National Center on Institutions and Alternatives. Selvog conducted a comprehensive background investigation of the defendant and testified on the defendant’s behalf at the sentencing phase of the trial. Isaacs also obtained the services of the Center for Rehabilitation and Therapy, Inc., to assist him with his challenges to the jury arrays and with the selection of the trial jury.
(a) Equal protection doctrine does not require that an indigent defendant be provided funds for expert assistance simply because the state is assisted by experts. See Pope v. State, 256 Ga. 195 (8) (345 SE2d 831) (1986). However, as we have noted, in an appropriate case, based upon a sufficient showing of need, the denial of funds for expert assistance might violate due process. Crawford v. State, 257 Ga. 681 (5) (362 SE2d 201) (1987).
(b) Isaacs obtained the services of an expert to assist him with his challenges to the jury array and with the selection of the jury, and obtained the assistance of the National Center on Institutions and Alternatives. No necessary assistance was denied here. See Jarrells v. State, 258 Ga. 833 (15) (fn. 3) (375 SE2d 842) (1989).
(c) Two attorneys were appointed to represent Isaacs over a year before the trial. They had a copy of the transcript of the previous trial, as well as access to the state’s file. No limit was placed on the hours they would be paid for investigating and preparing for the case.
Five of the victims in this case were shot in the head. One was shot in the spine. Isaacs does not suggest how the autopsist’s testimony about the cause of death of each of these victims might have been erroneous or questionable, or how a defense pathologist might have contributed information or analysis critical to the defense.
Likewise the defendant has not shown the necessity for a defense ballistics or fingerprint expert. Such necessity is not shown merely by noting that the defendant’s attorney is not himself an expert and suggesting in general terms that a defense expert could help the defendant cross-examine the state’s expert. Cf. Moore v. Kemp, 809 F2d 702, 712 (11th Cir. 1987).
Isaacs has not shown a reasonable probability that the assistance of a pathologist, ballistics expert, fingerprint expert, or an investigator (in addition to the investigative assistance provided by the National Center on Institutions and Alternatives) was necessary to his defense or that without such assistance his trial was rendered unfair. Roseboro v. State, 258 Ga. 39, 41 (fn. 3) (365 SE2d 115) (1988).
14. There was no error in the denial of continuance. The record shows that the defendant had ample time to prepare for trial and was prepared for trial.
15. As noted previously, in Div. (2 a), ante, a change of venue was granted and the case was moved from Seminole County to Houston County for trial. After the move, Isaacs again sought a change of venue, claiming that because of pretrial publicity, he could not get a fair trial in Houston County.
Isaacs contends the “presumed prejudice” standard should apply here as it did to the original Seminole County trial. See Isaacs v. Kemp, 778 F2d, supra; Coleman v. Kemp, 778 F2d 1487 (11th Cir. 1985). We disagree. As is noted in Coleman, the “presumed prejudice standard is ‘rarely’ applicable... .” Coleman v. Kemp, supra at 1490. Houston County was not subjected to an inundation of inflammatory pretrial publicity comparable to that which pervaded Seminole County before the original trial in this case. Moreover, the crime was not committed in Houston County, and was 15 years old when the case was tried the second time. Compare Patton v. Yount, 467 U. S. 1025 (104 SC 2885, 81 LE2d 847) (1984). The defendant comes close to contending his case is so notorious it can never be tried anywhere in this state. We do not agree, and find the presumed prejudice standard inapplicable.
Where the presumed prejudice standard does not apply, the defendant can prevail on a motion for change of venue based on excessive pretrial publicity only if he can show actual prejudice “from the jury selection process itself — the voir dire examination and qualification of prospective jurors.” Lee v. State, 258 Ga. 82, 86 (365 SE2d 99) (1988).
After an extensive and thorough voir dire examination of the prospective jurors, during which less than a fourth of the total number were excused for cause as a result of bias, prejudice, or fixed opinion, the trial court denied the defendant’s motion for change of venue, ruling that “a fair and impartial jury has been impanelled to try this case” and that “this defendant may be fairly and impartially tried in Houston County.” This finding is entitled to great deference, and we do not find it to be erroneous. Compare Devier v. State, 253 Ga. 604 (4) (323 SE2d 150) (1984).
16. On July 28, 1980, four death-row inmates escaped from custody. Carl Isaacs masterminded the escape but did not join the escapees because he was transferred to another prison less than two hours before the inmates had planned to leave. Isaacs was interviewed several times about his part in the escape attempt, and wrote a 46-page statement outlining his participation. In the introductory paragraphs, Isaacs stated:
Herein lies the truthful story of one of the greatest escapes that has ever been recorded in the annuls [sic] of history, perhaps it could even be the greatest.
Isaacs went on to describe how he had befriended persons on the outside, including a woman who had seen his picture in the paper and had “fallen in love” with him. He enlisted the aid of other inmates; some of whom he managed to have moved into his cellblock. Relying upon his outside acquaintances and theirs, they successfully smuggled into prison hacksaw blades, pajamas, shoes, belts and other items. The plan was to cut enough bars that all the prisoners involved could get out of their cells, through a fire escape door onto a catwalk, and then through another window which led to a roof. They concealed the cuts in the bars with bubble gum, cardboard and paint until they were ready to go. In the meantime they made guard uniforms to wear during the escape, dyeing shoes, belts, and pajamas, making imitation badges and nightstick holders, and obtaining real flag patches from sources inside the prison.
On the morning of the escape, each man involved was to proceed to the catwalk, where he would be issued his “uniform.” After donning their uniforms, the escapees were to proceed to the roof, where they would wait until 4:45 a.m., when a car would drive by to create a “diversion.” They would climb or jump down to the first floor roof and wait until 4:50, when the car would drive by again, and they would jump to the ground. There was a shift change about this time, and they would simply walk in their guard uniforms to a car that was to be left for them in the parking lot and drive away.
At 3:30 a.m. on the day of the escape, a guard came to Isaacs’ cell and told him to pack; he was going to be transferred. Rather than jeopardize the others’ chance to escape, Isaacs decided to let himself be transferred.
In 1985, Isaacs was caught in another escape attempt. This attempt was similarly intricate, and involved smuggling hacksaw blades, paint, glue and other material into prison. He cut into a ventilation duct and planned to get from there outside the prison building. After cutting through the fence, he planned to proceed to an area a mile or so away where a friend had left him a “stash.” He was caught when a guard noticed the vent in his cell was not quite the same color as the rest of the cell.
Isaacs was interviewed about this escape attempt by the GBI. The statements given by Isaacs about his two escape attempts were introduced in evidence at the sentencing phase of the trial.
(a) Isaacs contends the statements were not voluntary, and were given because he was afraid for his life. As the state points out, the statements themselves are compelling evidence that they were voluntarily given by one who was proud of his accomplishments. Moreover, one of his own witnesses at the Jackson-Denno hearing testified:
Your client [Isaacs] is lying to you and lying to this court. Man, there ain’t nobody ever threatened that man. As a matter of fact, he’s one of the best assets anybody has got on death row. They get him in a cell block and they love him because he’s an escape risk and everybody thinks he’s a genius....
He ain’t never been forced to give a statement. He ain’t never been forced to do nothing. He had so many guards on death row that loved him....
Before Isaacs was interviewed by the GBI, he was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The trial court did not err by finding the statements to have been given voluntarily, after a knowing, intelligent and voluntary waiver of his Miranda rights.
(b) Isaacs also contends the statements were improperly admitted in aggravation because they were evidence of crimes for which the defendant has not been convicted.
However:
As we held in Devier v. State, 253 Ga. 604 (9) (323 SE2d 150) (1984), a prior crime may be proven in aggravation despite the lack of a conviction, so long as there has not been a previous acquittal. See Fugitt v. State, 256 Ga. 292 (1 d) (348 SE2d 451) (1986). [Jefferson v. State, 256 Ga. 821, supra at (8 b).]
See also Potts v. State, 259 Ga. at (14). Evidence of the defendant’s escape attempts was properly admitted in evidence at the sentencing phase of the trial. Hicks v. State, 256 Ga. 715 (19 c) (352 SE2d 762) (1987).
17. Before the original trial, Billy Isaacs reached an agreement with the state that, in exchange for his testimony against the other defendants in the case and his guilty plea to burglary and armed robbery, the other charges against him would be dropped and he would receive immunity from prosecution on any and all other criminal offenses committed within this state as of November 1, 1973.
The defense was aware of this agreement prior to the retrial, but filed a motion seeking the revelation of any further “deal” for Billy Isaacs’ testimony at the retrial. The prosecutor stated there was none, and Billy testified at trial:
The very first time I met Mr. Ferguson, I asked him if there was some way that he would make a deal with me for me to be turned loose. The man stated... no, he could not, that he was not going to make any deals, promises, or insinuations in any way whatsoever.
The defendant contends a letter Billy Isaacs wrote after the trial to the Governor of Maryland (where he has additional time to serve after he completes serving his Georgia sentences), proves there was an understanding between the state and Billy Isaacs, the suppression of which entitles him to a new trial.
Billy Isaacs admitted during the trial that
I certainly have a lot of hopes that something will be done for me when this is all over with. That is what has helped me to keep me and my sanity for 15 years — hope.
The letter he wrote to the Governor of Maryland proves no more than that he hoped his cooperation in this trial could help him later.
The defendant has shown no suppression of any understanding or agreement for prosecutorial leniency, Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972), and no grounds for reversal. See Fugitt v. State, 256 Ga. 292 (2) (348 SE2d 451) (1986).
18. Citing March v. State, 458 S2d 308 (Fla. App. 1984) and State v. Delahoussaye, 443 S2d 648 (La. App. 1983), the defendant contends it was reversible error to open the trial with a prayer.
The record shows that at 9:30 a.m. on the first day of the trial proceedings, before the voir dire examination began, and 26 days before the trial ended, there was an invocation. The record does not disclose the contents of the invocation or identify the person delivering it, even though this appeal was remanded to the trial court for completion of the record. See footnote 1, ante.
An invocation is not prejudicial per se, and the defendant has not shown that this particular invocation was prejudicial. United States v. Walker, 696 F2d 277 (V) (4th Cir. 1983).
19. The defendant has shown no error in the manner in which the court excused prospective jurors before trial. Ingram v. State, 253 Ga. 622, supra at (1 e).
20. In enumerations 40 through 53, Isaacs contends that 14 prospective jurors were “factually biased” and should have been excused for cause. We note that one of those prospective jurors (enumeration 48) was excused for cause. Trial transcript at 2097. In addition, the defendant declined the trial court’s offer to excuse another of these prospective jurors (enumeration 46) who was selected as a juror. Trial transcript at 3869.
We find no error in the trial court’s determination that the remaining 12 prospective jurors were qualified to serve. Waters v. State, 248 Ga. 355 (2) (283 SE2d 238) (1981).
21. In enumerations of error 54 through 69, Isaacs contends that 16 prospective jurors should have been excused on “reverse-Witherspoon” grounds, i.e., because they were unable “fairly to consider a life sentence.” Childs v. State, 257 Ga. 243, 249 (7) (357 SE2d 48) (1987).
Initially, we note the trial court excused several prospective jurors on this ground. As in Childs v. State, supra, the “trial court recognized that an inability fairly to consider a life sentence is just as disqualifying as an inability fairly to consider a death sentence.” Ibid. Compare Skipper v. State, 257 Ga. 802, supra at (8).
Two of these 16 prospective jurors (enumerations 58 and 59) were not challenged for cause by the defendant. Another (enumeration 62) was excused for cause, trial transcript at 2097, mooting any possible revers e-Witherspoon error. Having reviewed the voir dire testimony of the remaining 13 prospective jurors, we do not find erroneous the trial court’s finding that they were qualified to serve.
Although their answers were to some degree inconsistent... the trial court did not err by concluding that the “final distillation” (Spivey v. State, [253 Ga. 187, 197 (fn. 3) (319 SE2d 420) (1984)]) of their thought processes did not show a disqualifying bias or predisposition to impose a death sentence. [Curry v. State, 255 Ga. 215, 221 (2 f) (336 SE2d 762) (1985).]
22. In enumerations 70 through 72 and 74 through 81, Isaacs contends the trial court erred by excusing 11 prospective jurors on “ Witherspoon” grounds, i.e., because they were unable fairly to consider the imposition of a death sentence.
The excusáis at issue here were “within the deference due the trial judge’s determination,” Jefferson v. State, 256 Ga., supra at 824 (2). These prospective jurors were properly excused under the standard set in Wainwright v. Witt, 469 U. S. 412 (105 SC 844, 83 LE2d 841) (1985).
23. In enumeration 73, Isaacs contends the court erred by allowing the state to ask a prospective juror whether she personally could “come in and say in open court that I impose a sentence of death by electrocution.”
In Alderman v. Austin, 663 F2d 558 (5th Cir., Unit B 1982), the predecessor to the Eleventh Circuit Court of Appeals held it was improper to excuse a prospective juror on Witherspoon grounds simply because the juror stated she would be unable to write out a verdict of death if selected as foreperson of the jury. The court noted that the juror had shown herself willing to vote for a death sentence, and held that an ability to sign a death sentence as foreperson was immaterial to the Witherspoon inquiry.
Pretermitting the extent to which Alderman v. Austin might still be persuasive now that Wainwright v. Witt, supra, has been decided, see Alderman v. State, 254 Ga. 206 (4) (327 SE2d 168) (1985), we find no error here. It is true that service as foreperson is not “among every juror’s duties,” Alderman v. Austin, supra at 563, but agreeing to a sentencing verdict is a part of every juror’s duty, since a poll of the jury is required at the sentencing phase of a death penalty trial. Unified Appeal Procedure, Rule III (B) (3) (b), Ga. Court and Bar Rules at 9-12. The state’s question was proper.
24. In enumerations 82 through 90, Isaacs contends the court overly restricted the voir dire examination of nine prospective jurors (five of whom are also the subject of one or more enumerations of error dealt with in Divs. 20 and 21, ante).
There was no restriction of the voir dire of the first of these nine jurors (enumeration 82). The defendant’s complaint is that the trial court allowed the state to ask the prospective juror whether it might be “difficult” for the juror to impose a death sentence. We agree with the defendant that an affirmative answer to this question would not be sufficient to disqualify the juror. Alderman v. State, supra, 254 Ga. at 207 (4). However, the juror was not disqualified on this or any other basis, and it was not an abuse of discretion to allow the state merely to ask the question. Curry v. State, supra, 255 Ga. at 218 (2 b).
Nor was there a restriction of the defense voir dire examination of the fourth of these prospective jurors (enumeration 85). The court simply ruled that the defendant himself could not ask a final voir dire question after his attorney had concluded his voir dire examination. This ruling was not error. Although a defendant has a right to represent himself, he does not have the right to act as co-counsel. Hance v. Kemp, 258 Ga. 649 (1) (373 SE2d 184) (1988). Even if the court allows a defendant to act as co-counsel, ibid., the court retains the discretion to require that only one of two or more co-counsel conduct the voir dire examination of each prospective juror.
There was no improper restriction of the voir dire examinations of the fifth of these prospective jurors (enumeration 86). A party is not entitled “to ask a juror to describe the kind of case that, in the juror’s opinion, would warrant a death sentence.” Blankenship v. State, 258 Ga., supra at 45 (6).
Isaacs’ remaining contentions about the restriction of voir dire primarily concern limitations on questioning about parole. The case on which he relies, King v. Lynaugh, 828 F2d 257 (5th Cir. 1987), was reversed in King v. Lynaugh, 850 F2d 1055 (5th Cir. 1988) (en banc). We find the en banc opinion more persuasive than the vacated panel opinion on which the defendant relies, and find no improper restriction of the voir dire examination, which fills over 2000 pages of transcript, not including the jury questionnaires each prospective juror filled out before entering the courtroom. Curry v. State, supra.
25. The state’s use of peremptory challenges to excuse jurors not disqualified under Wainwright v. Witt, supra, does not give rise to a claim under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Cf. Foster v. State, 258 Ga. 736 (2) (374 SE2d 188) (1988).
26. A photograph is authenticated by showing it is a fair and accurate representation of the scene depicted. Johnson v. State, 158 Ga. 192, 198 (2) (123 SE 120) (1924). Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken. Toler v. State, 213 Ga. 12 (3) (96 SE2d 593) (1957). Hence, it was not necessary, as the defendant contends, that a chain of custody have been established for certain photographs admitted in evidence in this case.
27. During the cross-examination of Billy Isaacs, the defendant’s attorney asked about alleged inconsistencies between prior testimony and that given at this trial. After asking Billy Isaacs about his testimony at a hearing involving co-defendant Coleman, and a statement he gave to the FBI, the defendant’s attorney asked, “Have you ever testified under oath that you saw this man half on the floor?” Receiving an affirmative answer, he then asked, “What is the difference?” Billy Isaacs answered:
One thing I would like to point out is that at the time that I testified at my brother’s original trial, I was very scared.
The defendant immediately moved for a mistrial, contending the answer violated the court’s pretrial ruling that the state should instruct its witnesses not to refer to the defendant’s previous trial and conviction. The trial court denied the motion for mistrial but gave curative instructions.
Isaacs contends the court erred by denying the mistrial. We disagree. The defendant’s questioning was not explicitly limited to previous testimony given elsewhere than at the defendant’s first trial, and the witness reasonably could have believed his answer was responsive to the question. As we stated in Felker v. State, 252 Ga., supra at 377 (11), “one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given.”
28. The trial court did not err in qualifying Kelly Fite of the state crime laboratory as an expert in toolmark and firearms examination, nor in admitting in evidence a properly authenticated photograph of a gun — no longer available — that Fite tested before the first trial of this case.
29. For reasons stated in Griffin v. State, 183 Ga. App. 386 (1) (358 SE2d 917) (1987), enumeration 96 is without merit.
30. In 1976, film maker Fleming Fuller interviewed several death-row inmates, including Carl Isaacs, in connection with a public-television documentary called “Murder One” that aired in May of 1977. Later, Fuller considered making a feature film about Isaacs’ crime. He interviewed Billy Isaacs in the spring of 1978, and came to believe that Billy had not killed anyone, contrary to what Carl Isaacs had said to Fuller earlier. Fuller decided to re-interview Isaacs “to compare the stories that Carl and Billy were telling to see how they coincided... .” When he talked to Carl Isaacs again, “he was very open and cooperative, and the stories that he told me did in fact coincide to an extraordinary degree with the story that Billy had told me.” These conversations were recorded by Fuller on an audio cassette tape recorder.
Portions of the tape (relating specifically to the crime on trial) were played to the jury at the guilt phase of the trial.
(a) We find that a proper foundation was laid for playing the tape to the jury. Solomon, Inc. v. Edgar, 92 Ga. App. 207 (3) (88 SE2d 167) (1955). Fuller testified that no changes, additions or deletions had been made to the tape since it was recorded. That the tape recorder was not on the entire time he talked to Isaacs does not mean the tape was inadmissible. The defendant was free to cross-examine Fuller about any portions of the interview that were not recorded. Smalls v. State, 105 Ga. 669 (1) (31 SE 571) (1898).
(b) There is no evidence Fuller was acting as an agent of the state, or that Isaacs’ statement was not voluntary. The court did not err by allowing the tape to be played to the jury. Berryhill v. State, 249 Ga. 442 (10) (291 SE2d 685) (1982).
31. Pretermitting whether the record would even support a finding that Billy Isaacs and three witnesses from the state crime laboratory committed perjury, the record certainly does not demand such a finding. The trial court properly submitted the issue of their credibility to the jury. Fugitt v. State, 256 Ga. 292, supra (6).
32. There is no merit to enumerations 101 through 123. The items involved either were tangible objects, and no chain of custody need have been shown, or were properly admitted after a chain of custody was established. Harper v. State, 251 Ga. 183 (1) (304 SE2d 693) (1983).
33. The admission of two photographs showing, respectively, the bodies of Mary Alday and Ned Alday, was not error. Brooks v. State, 258 Ga. 20, 22 (3) (365 SE2d 87) (1988). See also Hicks v. State, 256 Ga. 715, supra at (13).
34. Evidence that the defendant stole a car in Livingston, Alabama, after abandoning Mary Alday’s car was properly admitted. Moon v. State, 258 Ga. 748 (13) (375 SE2d 442) (1988).
35. In enumerations 128 through 132, Isaacs complains of various portions of the guilt-phase jury instructions.
(a) The court’s instructions on credibility of witnesses were not impermissibly burden-shifting. Noggle v. State, 256 Ga. 383 (4) (349 SE2d 175) (1986).
(b) The trial court instructed the jury that certain inferences could be drawn as to intent. Citing Powell v. State, 187 Ga. App. 878 (4) (372 SE2d 234) (1988), the defendant argues that substituting “inferences” for “presumptions” in a jury charge is not sufficient to remedy a charge otherwise unconstitutional under Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979).
In Powell v. State, supra, the trial court instructed the jury:
“The law infers that a person intends to accomplish the natural and probable consequences of his acts and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being, the law infers the intent to kill. These inferences may be rebutted however.” [Id. at 879.]
We agree that merely substituting “inference” terminology for “presumption” terminology is not necessarily sufficient to “clean up” an instruction invalid under Sandstrom v. Montana, supra, and Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985). That does not mean, however, that a jury instruction containing inference terminology is constitutionally improper.
A presumption or inference is an evidentiary device which authorizes the jury to find the existence of a fact from proof of one or more other facts. Such devices are not invalid per se. See, e.g., Ulster County v. Allen, 442 U. S. 140, 156 (99 SC 2213, 60 LE2d 777) (1979). However, a device may not, consistent with the constitutional requirement that a criminal defendant’s guilt must be proven beyond a reasonable doubt, lessen or shift the state’s burden of proof. Sandstrom v. Montana, supra. Whether an evidentiary device has such an impermissible effect depends upon whether it is permissive or mandatory.
A permissive device is valid if it is rational. Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981). A mandatory inference or presumption concerning an element of the offense is invalid, and this is so whether it is mandatory-conclusive or mandatory-rebuttable. Sandstrom v. Montana, supra, 442 U. S. at 524.
Although the term “ ‘inference’ has tended to be used more frequently [than the term ‘presumption’] for evidentiary devices that are permissive in nature,” Lamb v. Jernigan, 683 F2d 1332, 1335-36 (fn. 4) (11th Cir. 1982), use of either term is not conclusive of whether the device is permissive or mandatory. An “inference” can be mandatory, and a “presumption” may be permissive. Id.
Whether the device is permissive or mandatory may be determined as follows:
A permissive inference is an evidentiary device that permits, but does not require, the jury to infer the elemental fact from proof by the prosecutor of the basic fact. By contrast, a mandatory presumption instructs the jury that it must infer the elemental fact once the state has proved the basic fact. The difference between the two may be found in the presence or absence of “language of command” such as ‘shall be.’ An instruction containing a mandatory presumption commands that the jury reach a particular conclusion, while an instruction couched in terms of an inference merely suggests, but does not command, that the jury do so. Since a permissive inference does not require the jury to reach a certain conclusion, it does not affect the burden of proof, and therefore must meet only the ‘rational connection’ test. A mandatory presumption, however, eases the prosecution’s burden and, therefore, implicates both the ‘rational connection’ test and the requirement that the prosecution prove every element of the offense beyond a reasonable doubt. [Doyel, Burden-Shifting Criminal Jury Instructions in Georgia, 38 Mer. L. R. 1, 4 (1988) (footnotes omitted).]
It can be seen that a jury instruction stating “the law infers fact x from fact y” is just as mandatory as an instruction that “the law presumes fact x from fact y.” In either event, the jury is told that a finding of fact x legally follows from proof of fact y.
Isaacs contends the instructions in this case are as defective as those in Powell v. State, supra, because in both cases the court merely substituted “inference” terminology for “presumption” terminology in instructions otherwise invalid under Sandstrom. However, in Powell, the sole change made to language taken from a pre-Sandstrom case was the substitution of the word “infers” for the word “presumes.” No other changes were made, and the “language of command” was retained. Such “language of command” is absent from the instructions on criminal intent in this case. Phrases such as “intent may be inferred.. .,” or “it is reasonable to infer.. .,” or “you may draw the inference that.. .,” are clearly permissive in nature. There was no violation of Sandstrom. Hill v. Kemp, 833 F2d 927 (11th Cir. 1987).
(c) The court charged the jury:
It is your duty and responsibility to decide the truth of the case from a factual standpoint from the evidence submitted to you. The state contends that the true facts of this matter are one thing, the defendant contends that the true facts are another way. It is your duty to decide what the true facts are from the evidence, and only from the evidence presented before you. in this trial. [Emphasis supplied.]
The defendant argues this charge was improper because the defendant has no burden to contend or prove anything.
The defendant contended he was not guilty when he entered his plea. We do not see how the charge implies anything about the burden of proof, and find no error in the charge.
(d) The court’s charge on flight was not erroneous. Pollard v. State, 249 Ga. 21 (3) (287 SE2d 189) (1982).
36. Isaacs contends that certain slide photographs admitted in evidence at the sentencing phase of the trial were not sufficiently authenticated. We find that the scenes depicted were sufficiently identified to overcome a foundation objection to their admissibility. Cf. Pruitt v. State, 258 Ga. 583 (4) (373 SE2d 192) (1988).
37. As noted previously, Ham Selvog, of the National Center on Institutions and Alternatives conducted a background investigation of the defendant, and testified on behalf of the defendant at the sentencing phase of the trial. His testimony included the presentation of a videotaped interview of the defendant’s father, who now lives in Tennessee, and a summary of information he obtained about the defendant’s childhood from neighbors, social workers, school records, foster parents, juvenile detention records, and other public records. During colloquy about his testimony outside the presence of the jury, the court stated:
Ninety-nine point nine [percent] of what this witness has said is rank hearsay. You know that, I know that, Mr. Ferguson [the D.A.] knows that. If Mr. Ferguson does not object to it, and the court is not suggesting that he should, then the court has no objection to it.
Virtually all of Selvog’s testimony, which fills over 120 pages of the transcript, was admitted without objection.
The defendant complains of two instances in which the court sustained a state’s objection to Selvog’s testimony. In the first instance, the court excluded a letter written to Selvog in 1988 by an assistant principal who once knew Carl Isaacs. This half-page letter contains its author’s hope that it would offer “some type of consolation” to the defendant, and a request that Selvog would tell the defendant he said hello. In the second instance, the court excluded testimony about a 1973 report entitled “A Call for Reform of Maryland’s Training Schools.”
Relying on Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979), Isaacs contends it was error to exclude this evidence. We do not agree. Green does not, as the defendant contends, hold that a defendant’s hearsay evidence must be admitted at the sentencing phase of a death penalty case. Alderman v. State, 254 Ga. 206, supra at (7). In this case the court did not mechanistically apply the hearsay rule to exclude defense evidence in mitigation that the state had considered reliable enough to use in aggravation in a co-defendant’s case. The “unique circumstances” described in Green are not present here, and it cannot reasonably be said that the hearsay rule was “applied mechanistically to defeat the ends of justice.” Id.
38. Any error in the court’s comment while ruling on the admissibility of evidence that the defendant was “present” and could “speak for himself if he chooses” was rendered harmless by the court’s curative instructions.
39. It was not error to allow the state to present the testimony of two witnesses in rebuttal who were not on the state’s list of witnesses. White v. State, 253 Ga. 106 (3) (317 SE2d 196) (1984).
40. A defendant no longer has the right to give an unsworn statement. 1973 Ga. Laws 292, § 2. Isaacs could have testified subject to being cross-examined at the sentencing phase of the trial if he chose, OCGA § 24-9-20, but the court did not err by refusing to allow him to make an unsworn statement.
41. Isaacs
did not object at trial to the prosecutor’s [sentencing-phase] closing argument and, having reviewed the complaints he now makes on appeal, we conclude the prosecutor’s arguments “did not result in the sentence of death being imposed under the influence of passion, prejudice, or any other arbitrary factor.” [Cits.] [Kinsman v. State, 259 Ga. 89, 92 (11) (376 SE2d 845) (1989).]
42. For reasons discussed in Div. 9, ante, there is no merit to enumeration of error 139.
43. In enumerations 140 through 147, Isaacs complains about various portions of the sentencing-phase charge.
(a) “[T]he doctrine of ‘mutually supporting aggravating circumstances’ precludes imposition of two death sentences where the sole statutory aggravating circumstance is that the defendant has committed a double murder.” Putman v. State, 251 Ga. 605, 614 (12) (308 SE2d 145) (1983). However, the jury may impose a death sentence for each murder in a multiple-murder case where each murder is supported by an independent statutory aggravating circumstance. In Putman, for example, both murders were aggravated because they involved the commission of an armed robbery. Ibid. There is no merit, then, to Isaacs’ argument that it was improper to support each death penalty in this case by the statutory aggravating circumstance that each murder was committed by a person who had escaped from lawful confinement, OCGA § 17-10-30 (b) (9), and to support each death sentence by the statutory aggravating circumstance that each murder was committed during the commission of armed robbery and burglary. OCGA § 17-10-30 (b) (2). Compare Lee v. State, 258 Ga. 762 (8) (374 SE2d 199) (1988); Lonchar v. State, 258 Ga. 447 (9) (369 SE2d 749) (1988); Frazier v. State, 257 Ga. 690, supra at (27); Ford v. State, 257 Ga. 461 (1) (360 SE2d 258) (1987); Blanks v. State, 254 Ga. 420 (9) (330 SE2d 575) (1985); Finney v. State, 253 Ga. 346 (7) (320 SE2d 147) (1984); Wilson v. State, 250 Ga. 630 (9) (300 SE2d 640) (1983); Putman v. State, supra.
(b) The court’s charge on the § b (7) statutory aggravating circumstance was not erroneous. West v. State, 252 Ga. 156 (Appendix) (313 SE2d 67) (1984).
(c) The defendant’s request to charge number 4 was covered in substance by the court’s charge. The refusal to give the defendant’s request to charge was not error. Pruitt v. State, 258 Ga., supra at (13).
(d) Enumeration of error number 143 is answered contrary to the defendant’s position by Moon v. State, 258 Ga., supra at 759-60 (33).
(e) The court did not err by refusing to tell the jury that if it could not reach a unanimous verdict, it should notify the court in written form: “We, the jury, are not able to reach a unanimous decision.” Cf. Romine v. State, 256 Ga. 521 (1) (350 SE2d 446) (1986).
(f) The court did not err by telling the jury that although it could properly consider “feelings of sympathy and mercy for the defendant,” Legare v. State, 250 Ga. 875 (2) (302 SE2d 351) (1983), it should not act on “whim or caprice.” Cf. Williams v. State, 258 Ga. 281, 290 (11) (368 SE2d 742) (1988).
(g) Enumeration of error number 146 is answered contrary to the defendant’s position by Spraggins v. State, 255 Ga. 195 (336 SE2d 227) (1985).
(h) The court clearly instructed the jury that its “recommendation” of sentence would be binding on the court. There was no error here. Moon v. State, supra, 258 Ga. at 760 (34).
44. Enumerations 149 through 153 raise issues concerning the jury’s sentencing-phase deliberations.
The jury began its sentencing deliberations at 2:00 p.m. Friday afternoon. At 7:10 p.m., a note was delivered to the court that one juror had become ill, and another was upset. The juror who had become ill was taken to the hospital. Ten of the jurors were sent to supper, and the trial judge, accompanied by a court reporter, entered the jury room and talked to the juror who had been reported to be upset. A transcript of this conversation was furnished to both parties the next morning. It is set out, in full, in Appendix A of this opinion. To summarize, however, the juror stated she was upset because she was not sure she was “capable” of voting for a death sentence. The court told her she was entitled to vote her decision whatever it was, and that she had no reason to be ashamed or feel defensive about it. The juror stated she did not know how she wanted to vote, and the court told her she did not have to make her mind up that evening, and that the deliberations would be adjourned until the morning.
The next morning, the court consulted a doctor concerning the juror who had been taken to a hospital. The doctor’s diagnosis was that she was physically unable to continue. The court excused her and replaced her with an alternate.
The jury was instructed to begin its deliberations anew so the alternate juror could participate in all decisions the jury was to make.
Several jurors complained that it had been too hot in the jury room. The court discovered that the thermostat controlling the temperature in the jury room had been set incorrectly the previous evening, but the temperature was now set correctly.
Jury deliberations began shortly before 9:30 a.m. The jury reached a verdict at 11:20 a.m. The jurors were polled, and all the jurors stated their agreement with the verdict.
(a) Isaacs contends the court erred by refusing to allow him to question the remaining jurors after the court questioned the one juror in the jury room. But all of the jurors and alternates testified at the hearing on the motion for new trial. The defendant was not denied an evidentiary opportunity to develop issues raised by the situation.
(b) Isaacs contends the court erred by replacing the juror who was ill with an alternate juror. We do not agree. According to testimony presented at the hearing on the motion for new trial:
[The juror] had been sick all week long and she was telling us if we can just get through this, you know, then I can hold out. We kept telling her that you need to go to the doctor. She said no, I can hold out, you know, and she kept trying to hold out long enough for the trial to be over....
She fainted, however, on Friday evening. The court properly excused her after she was examined by a doctor who reported to the court that in his opinion she was physically unable to continue.
(c) The court did not improperly limit the defendant’s evidentiary presentation at the motion-for-new-trial hearing. He was allowed to explore all relevant matters. Rushen v. Spain, 464 U. S. 114, 121 (fn. 5) (104 SC 453, 78 LE2d 267) (1983).
(d) The testimony presented at the hearing supports the trial court’s finding that there were no improper communications between the regular jurors and the alternates.
(e) When the juror who was upset talked to the trial judge on Friday evening, she related that “somebody talked about having two sisters killed and the drunk driver got off; then another girl said she was molested.”
The juror who was molested testified that she had not disclosed the information on her jury questionnaire because she simply had not thought about it while she was filling it out. She testified that she had no real memories of it, because she had “totally blocked out most of my childhood” and was “still not real sure what happened.” During the jury deliberations, the juror had told the other jurors only
that just because an individual had been abused as a child didn’t necessarily mean that they would turn to a life of crime... because I myself was abused as a child.
The other juror testified that two of his friends were killed by a drunk driver. Although he had noted on his jury questionnaire that a good friend of his — a former deputy sheriff — had been murdered by an escaped convict, he had not listed the automobile accident on the questionnaire because he did not think about it. He testified that he was not as close to the two friends who had died in the automobile accident as he had been to the one who was murdered.
The defendant contends that if the two jurors referred to had revealed this information during the voir dire examination, he would have moved to strike them for cause, or at least challenged them peremptorily, and that he is entitled to a new trial. We disagree.
To invalidate the result of a 3-week trial because of a juror’s mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.... We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. [McDonough Power Equipment, Inc., v. Greenwood, 464 U. S. 548, 555-56 (104 SC 845, 78 LE2d 663) (1984).]
“Although McDonough was a civil case, its test has been applied in criminal cases. [Cit.]” United States v. O’Neill, 767 F2d 780, 785 (11th Cir. 1985). We find it persuasive.
We agree with the trial court’s finding that neither juror was dishonest during the voir dire examination. Moreover, in view of their overall testimony, including their belief that the incidents did not affect their ability to be fair and impartial jurors, we do not find that either would have been excludable for cause if the information had been disclosed before trial. The defendant is not entitled to a new trial on this ground.
(f) The defendant contends that he nevertheless is entitled to a new trial because the jury considered matters not in evidence during its deliberations. This contention is answered by Hall v. State, 259 Ga. 412 (3) (383 SE2d 128) (1989). As we noted in Aguilar v. State, 240 Ga. 830, 832 (1) (242 SE2d 620) (1978):
What goes on in the jury room is a complicated weighing process, in which the final unanimous verdict is merely the resultant of numerous competing forces. See generally H. Kalven & H. Zeisel, The American Jury (1966). Our statute... prohibits the jurors from impeaching their verdicts.... The purpose of the statute is plainly to prohibit after-the-fact picking at the negotiating positions of the jurors and of their attempts to persuade one another.
(g) Finally, Isaacs contends the court should have declared a mistrial Friday evening on the ground the jury was deadlocked. We held in Romine v. State, 256 Ga. 521, 525 (1 b) (350 SE2d 446) (1986) that “whether a jury is hopelessly deadlocked is an evaluation we commit to the sound discretion of the trial court, subject to appellate review for an abuse of discretion.”
Isaacs contends that the juror who was upset Friday evening may have been coerced into reaching her verdict.
All of the jurors testified at the new trial hearing that it was unmercifully hot and stuffy in the jury room Friday evening. The juror who was upset testified that she felt pressure not from the other jurors, but because she “felt that we had to make a decision that Friday night... and I just wasn’t ready to vote.” After resting Friday night, and returning Saturday morning to a more comfortable jury room, she was prepared to vote. She testified that her verdict was free and voluntary.
The trial court’s refusal to find the jury deadlocked Friday evening was not an abuse of discretion. The denial of a mistrial was not error.
45. The evidence supports the jury’s findings of statutory aggravating circumstances. QCGA § 17-10-35 (c) (2). See Div. 43 (a) of this opinion, ante. Compare Rivers v. State, 250 Ga. 303 (8 d) (298 SE2d 1) (1982).
46. We do not find that the sentences of death were imposed under the influence of impermissible passion, prejudice or other arbitrary factor. QCGA § 17-10-35 (c) (1). The sentences of death are neither excessive nor disproportionate to sentences imposed in similar cases, considering the crime and the defendant. The similar cases listed in the Appendix support the imposition of a death sentence in this case.
Judgment affirmed.
Marshall, C. J., Clarke, P. J., Smith, Gregory, Bell, JJ., and Judge Frank S. Cheatham concur. Weltner, J., disqualified.
Appendix.
Lee v. State, 258 Ga. 762 (374 SE2d 199) (1988); Morrison v. State, 258 Ga. 683 (373 SE2d 506) (1988); Frazier v. State, 257 Ga. 690 (362 SE2d 351) (1987); Ford v. State, 257 Ga. 461 (360 SE2d 258) (1987); Romine v. State, 256 Ga. 521 (350 SE2d 446) (1986); Cargill v. State, 255 Ga. 616 (340 SE2d 891) (1986); Ingram v. State, 253 Ga. 622 (323 SE2d 801) (1984); Finney v. State, 253 Ga. 346 (320 SE2d 147) (1984); Spivey v. State, 253 Ga. 187 (319 SE2d 420) (1984); Roberts v. State, 252 Ga. 227 (314 SE2d 83) (1984); Putman v. State, 251 Ga. 605 (308 SE2d 145) (1983); Mincey v. State, 251 Ga. 255 (304 SE2d 882) (1983); Wilson v. State, 250 Ga. 630 (300 SE2d 640) (1983); Rivers v. State, 250 Ga. 288 (298 SE2d 10) (1982); Jones v. State, 249 Ga. 605 (293 SE2d 708) (1982); Berryhill v. State, 249 Ga. 442 (291 SE2d 685) (1982); Solomon v. State, 247 Ga. 27 (277 SE2d 1) (1981); Dick v. State, 246 Ga. 697 (273 SE2d 124) (1980); Jones v. State, 243 Ga. 820 (256 SE2d 907) (1979); Amadeo v. State, 243 Ga. 627 (255 SE2d 718) (1979); Corn v. State, 240 Ga. 130 (240 SE2d 694) (1977); Peek v. State, 239 Ga. 422 (238 SE2d 12) (1977); Stephens v. State, 237 Ga. 259 (227 SE2d 261) (1976); Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976); Dobbs v. State, 236 Ga. 427 (224 SE2d 3) (1976); Goodwin v. State, 236 Ga. 339 (223 SE2d 703) (1976); Mitchell v. State, 234 Ga. 160 (214 SE2d 900) (1975); Moore v. State, 233 Ga. 861 (213 SE2d 829) (1975); Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974).
Appendix A.
THE COURT: What do you want to tell me?
THE JUROR: Well, we voted on five of the cases and I agreed that everything — you know, they did. Well, I agreed on some of those counts on the paper. But for some reason, I couldn’t vote death. I voted life. And it was one other voted life, too. And to me, I just couldn’t make myself do death. But when I was polled, I thought I could; but when it came time to do it, I couldn’t make myself do it. And I guess I considered his background and everything, and I just feel like I couldn’t do it.
And we talked about it and people told personal things that didn’t have anything to do with the case, and then they told about what the alternates felt, that they would vote guilty. And I just started feeling so like I wasn’t capable of voting, you know, right. I felt that either I was going to vote because they said all four of the alternates, that they told another juror that they would vote guilty. And that somebody talked about having two sisters killed and the drunk driver got off; then another girl said she was molested. And things like that just ride at me so much that I just don’t feel like I’m capable of doing anything no more. I feel like I’m just deadlocked. I don’t know how to deal with it no more. And I don’t know whether I can live with myself if I voted the death. I think it would hurt me in all ways. And then I just don’t feel I’m capable of doing it.
THE COURT: Well, let me ask you this. How would you feel if we stopped for the day and you take a rest tonight? You think you could go on with the deliberations tomorrow?
THE JUROR: I don’t know. I don’t know how —. I don’t know.
THE COURT: Well, let me tell you this. You are entitled to vote your convictions, and you should vote your convictions, whatever they may be. That’s why you’re here. And you have no reason to be ashamed of your convictions, whatever you may, and you have no reason to feel defensive about it. Okay?
Decided November 30, 1989
Reconsideration denied December 20, 1989.
Jackson & Schiavone, G. Terry Jackson, Michael G. Schiavone, for appellant.
Charles M. Ferguson, District Attorney, from Pataula Circuit, Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, Paula K. Smith, Assistant Attorney General, for appellee.
THE JUROR: But I’ve been made to feel like I’m doing something wrong. I don’t know what to do. I don’t know whether I can do it.
THE COURT: Well, everyone has got to make up their own mind. Each juror has got to decide the case for themselves. And whatever your decision may be, you are entitled to it. You don’t need to worry about that and you don’t need to feel defensive about it.
THE JUROR: What if I can’t vote now? What if I can’t?
THE COURT: Well, you don’t have to make up your mind right this minute. You’re upset and you’re tense and I think you need a rest. Now I’ve sent the other jurors on over to the hotel to get something to eat. I know you must be hungry..
THE JUROR: I’m not hungry.
THE COURT: Would you like to simply go back to your room and rest? Would you like to see a doctor?
THE JUROR: I don’t know. I don’t know. I don’t know whether I’ll be voting now my conviction or voting because I’m just voting to get it over with. I don’t know. I’m mixed up. I don’t know.
THE COURT: Well, I think you need some time to think. It’s not a decision that has to be made right this minute. ... I want you to go on back to the hotel with the bailiff. If you want to get some supper, that’s fine. If you don’t want to eat, you don’t have to eat. But j*0g^ _
THE JUROR: I want to go home.
THE COURT: Well, you can’t go home yet. I can’t excuse you from service on the jury just yet. You feeling a little better?
THE JUROR: I just feel hot.
THE COURT: Well, you go back over to the hotel now with the bailiffs, and rest. Okay? And perhaps you’ll be able to know your own mind better in the morning. Okay? That sound better?
THE JUROR: I guess if I have to try.
THE COURT: Okay.
The crime occurred on May 14, 1973. After the grant of habeas relief by the 11th Circuit, the case was returned to Seminole County. Pretrial proceedings resulted in the recusal of the trial judge assigned to preside over the retrial, see Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1987), and Superior Court Judge Hugh Lawson was assigned to the case. Judge Lawson granted a change of venue to Houston County and quashed the Seminole County indictment. Isaacs was reindicted in Houston County on August 17, 1987. The trial began on January 4, 1988, with the commencement of the voir dire proceedings, and ended on January 30, 1988, when the jury reached its verdict on the issue of sentence. A motion for new trial was timely filed, and heard on June 9, June 23 and June 30, 1988. The motion for new trial was denied on July 15, 1988. An appeal originally was docketed in this court on September 16, 1988. On motion by the defendant for a remand to complete the record, the case was remanded for that purpose on November 16, 1988. The case was redocketed in this court on February 27, 1989. Oral arguments were heard on June 13, 1989.
See OCGA §§ 15-12-60 (elected office-holders, convicted felons, and persons under age 18 not qualified) and 15-12-70 (persons related within the sixth degree to “any party interested in the result of the case” are disqualified).
Vasquez v. Hillery, 474 U. S. 254 (106 SC 617, 88 LE2d 598) (1986), cited by the defendant, is inapposite here. United States v. Mechanik, supra at 70 (fn. 1).
See Isaacs v. State, supra, 257 Ga. at 799.
In addition, we note that, especially in light of the defendant’s own statements about the crime (see Div. 30, post), we do not agree that Billy’s “testimony as to who shot the victims... was essential” to establish the defendant’s involvement in the crime.
Seven of these 16 enumerations of error involve prospective jurors dealt with in Div. 20 of this opinion. The defendant contends these seven were both factually biased and impermissibly biased in favor of a death sentence.
Arguably as many as seven were excused on this ground, although some of them were probably disqualified also for other reasons.
There is a possible exception: A mandatory rebuttable presumption that only shifts the burden of production but not the burden of proof might survive constitutional scrutiny. See Williams v. Kemp, 255 Ga. 380, 381 (338 SE2d 669) (1986). In the overwhelming majority of presumption cases, however, this possible exception need not concern us.