Marion Albert Pruett told a Mississippi jury, under oath, how he killed Peggy Lowe. On September 17, 1981, he robbed the Unifirst Savings office in Jackson, where Opal H. “Peggy” Lowe worked, took her from the building, and drove her about a hundred miles east on Interstate 20, across the state line into Sumter County, Alabama. On a country road off the highway he took her into the woods, left her there while he went back to the car for a shot of cocaine, and then, by his own account, made her kneel and repeat her husband’s telephone number and shot her in the back of the head. Because she died in Alabama, his lawyers argued that Mississippi had no power to try him for her murder. On February 23, 1983, the Supreme Court of Mississippi held that the kidnapping which began in Jackson made the killing a crime there, and affirmed his conviction and death sentence.
The five opinions collected here come from three courts and follow Pruett through the aftermath of a single autumn. He had left federal prison in 1979, released from a twenty-three-year bank robbery sentence after testifying against a man he had served time with, and he was living under a new name in New Mexico in the Federal Witness Protection Program when his wife was found beaten and burned in April 1981. The Supreme Court of New Mexico affirmed his conviction for her murder and his life sentence on January 31, 1984, rejecting his claims that he had been rushed to trial and that the confession he gave a Jackson police officer had been bought with a promise of cocaine. The Mississippi case went on to federal habeas corpus: a district court found error at the guilt phase in 1986, and in 1987 the state supreme court refused to bar a retrial even though the 120 days the federal court had allowed had run out. The 1990 opinion concerns only the fees owed to the lawyers the state had appointed to defend him.
The last word came from the Eighth Circuit, on August 7, 1998, in the case that killed him. In the early hours of October 12, 1981, Pruett abducted Bobbie Jean Robertson from the Convenience Corner store in Fort Smith, Arkansas, drove her to a wooded spot called Horseshoe Bend, and shot her as she turned back to ask for her purse. A federal district court had granted him habeas relief in 1997, holding that pretrial publicity and the hypnotically refreshed testimony used against him at sentencing had denied him a fair trial. The Eighth Circuit reversed and dismissed the petition. Arkansas executed him at the Cummins Unit on April 12, 1999.
Every fact these courts state about the killings comes from the trial records, and in the Lowe case much of it from Pruett’s own sworn testimony. The 1998 opinion summarizes a criminal history that goes well beyond its own case, including the murders of two store clerks in Colorado, James R. Balderson and Anthony Taitt, to which he pleaded guilty, and it presents that history as background, not as findings. The federal habeas rulings of 1986 and 1997 are described here only through what these courts say about them; the documents themselves are not part of this page.
The Eighth Circuit names Pruett’s wife as Pamela Sue Carnuteson, and her surname is printed in other accounts of the case as Barker. We have not found a primary record, such as her death certificate or the New Mexico indictment, that settles which name she was using when she died, and both courts that tried or reviewed her case are quoted here exactly as they printed it. The New Mexico opinion itself does not give her name.
All five opinions are public records. Peggy Lowe, Bobbie Jean Robertson, Pamela Sue Carnuteson and the two Colorado clerks keep their names, as do the officers, prosecutors, defense lawyers and judges. The jurors discussed in the 1983 opinion’s review of jury selection are given initials, and so are a bank teller, a woman identified only as Miss B., and the man a Crimestoppers informant named to the police in New Mexico, whom the defense wanted to call. The text is the Caselaw Access Project’s scan, and its misprints are kept: Pruett is printed three times as “Praett,” and at Horseshoe Bend he parks “his ear”. We closed words the printer had split across lines where the whole word appears elsewhere in the text; nothing has been spell-checked.
Marion Albert PRUETT v. STATE of Mississippi.
No. 54000.
Supreme Court of Mississippi.
Feb. 23, 1983.
Rehearing Denied March 16, 1983.
Binder, Kirksey & DeLaughter, William B. Kirksey, Alvin M. Binder, Jackson, for appellant.
Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
[OPINION BY BOWLING, Justice, for the Court: type=majority]
BOWLING, Justice, for the Court:
Appellant Marion Albert Pruett was indicted in the Circuit Court of the First Judicial District of Hinds County for the crime of capital murder. Venue was moved to Lowndes County and in a bifurcated trial, as required by statute and prior decisions of this Court, he was found guilty of the crime at the conclusion of the guilt phase. After presentation of the penalty phase to the jury, it found that appellant should be put to death as the penalty for his crime. On appeal to this Court, appellant assigns four alleged reversible errors as follows:
I. THE LOWER COURT ERRED IN ASSUMING JURISDICTION AND VENUE OVER APPELLANT ON THE CHARGE OF CAPITAL MURDER; IN OVERRULING APPELLANT’S MOTION TO QUASH THE INDICTMENT, DIRECTED VERDICT AND PEREMPTORY INSTRUCTION; AND IN GRANTING THE STATE’S INSTRUCTION S-l.
II. THE LOWER COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS EVIDENCE AND ADMITTING CONFESSIONS INTO EVIDENCE WHICH WERE ELICITED FROM APPELLANT BY PROMISES OF DRUGS FROM AUTHORITIES.
III. THE LOWER COURT ERRED IN SEATING MR. SIDNEY GRAHAM (JUROR # 8) ON THE JURY AND APPELLANT WAS DENIED THE OPPORTUNITY TO EXERCISE PEREMPTORY CHALLENGES IN AN INTELLIGENT AND KNOWLEDGEABLE MANNER BECAUSE OF SAID JUROR’S MISSTATEMENTS DURING VOIR DIRE.
IV. THE LOWER COURT ERRED IN ADMITTING AN EDITED TELEVISION INTERVIEW INTO EVIDENCE AT THE SENTENCING PHASE OF THE TRIAL.
Appellant was indicted under Mississippi Code Annotated, Section 97-3-19(2)(e) (Supp.1982), which provides as follows:
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
* * * * * *
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies;
The punishment phase of the bifurcated trial was conducted pursuant to the provisions of MCA § 99-19-101 (Supp.1982). It should first be noted that no error is assigned because of any alleged failure to follow the provisions of the statute.
The facts of the crime are practically admitted in their entirety, except for one instance; that is, the events immediately prior to appellant shooting the deceased, Peggy Lowe. All underlying occurrences were testified to by appellant as his only witness during the guilt phase of the trial. There is no contention or indication that Pruett was mentally incompetent. In fact, the entire record and history of this particular case, as well as Pruett’s prior activities, clearly reveal that he is a very intelligent and crafty person. The circumstances leading to the death of Peggy Lowe were clearly revealed by appellant’s sworn testimony at the trial. Early on the morning of September 17, 1981, appellant appeared at the branch office of Unifirst Savings & Loan Association located in the Metrocenter shopping area where Peggy Lowe worked with three other female employees. According to appellant, he picked out this business because no male employees were present, stating that men would be more likely to give him trouble than women. Appellant had stayed the prior night at a motel not very far from the area. The purpose of appellant entering the savings and loan association branch office admittedly was to commit an armed robbery and to take a hostage for the purpose of making his escape. During the progress of the armed robbery, Mrs. Lowe received a call from her son and made an engagement to meet him for lunch. Appellant decided that it would suit his purposes better to take Mrs. Lowe as hostage rather than the other person originally selected.
The armed appellant then took the money and Peggy Lowe to her car and drove to another part of the shopping center. He then placed her in his car, drove around several streets in the area, and then drove to Interstate # 20 and approximately 100 miles, without stopping, to Sumter County, Alabama. This county is adjacent to the Mississippi-Alabama state lines. During this entire ride appellant forced Mrs. Lowe to stay on her knees on the floorboard of the passenger front of the car, with her shoulders, arms and head downward on the seat. Whenever passing another vehicle or being passed, appellant would place his coat over Mrs. Lowe so she would not be seen. At one point during the ride, at the request of Mrs. Lowe, appellant permitted her to say a prayer.
After driving into Alabama, appellant left the interstate highway, traveled on a gravel road for a distance and then turned onto a small country road where he stopped. Mrs. Lowe was taken from the car and carried into the woods. According to appellant, he then forced her to disrobe, except for her underclothes. The purpose of this was to keep her under his control so that she would not leave the area. Appellant testified he then went to his car, took a shot of cocaine and went back to check on his prisoner. He found that she had moved from the area. He then, by his own sworn testimony, instructed her to get on her knees, put her face down and repeat her husband’s telephone number so that he could be called. Mrs. Lowe was in the process of doing this when appellant, according to his sworn testimony, shot her in the back of the head at close range. Appellant then drove away in his car and visited other parts of the country prior to being apprehended.
POINT I. THE LOWER COURT ERRED IN ASSUMING JURISDICTION AND VENUE OVER APPELLANT ON THE CHARGE OF CAPITAL MURDER; IN OVERRULING APPELLANT’S MOTION TO QUASH THE INDICTMENT, DIRECTED VERDICT AND PEREMPTORY INSTRUCTION, AND IN GRANTING THE STATE’S INSTRUCTION S-l.
The underlying contentions of appellant under the issues raised regarding this point are that appellant could not be indicted, tried and convicted for the crime of capital murder because the killing of Mrs. Lowe occurred in the State of Alabama.
Appellant filed a motion attacking the jurisdiction of the Hinds County, Mississippi, court and a hearing was had under stipulation by the state and appellant. This stipulation was as follows:
That Opal H. Lowe, a/k/a Peggy Lowe, died on or about September 17, 1981. That Opal H. Lowe, a/k/a Peggy Lowe, died in Sumter County, Alabama. That said death was caused by a gunshot wound to the back of the head as more fully shown by the autopsy report; that the instrumentality causing the gunshot wound to Opal H. Lowe, a/k/a Peggy Lowe was inflicted in Sumter County, Alabama, on or about September 17, 1981. That said gunshot was fired in the State of Alabama, and the fatal injury as aforesaid, was sustained in the State of Alabama; that Opal H. (Peggy) Lowe had been taken by force, held hostage, and kidnapped in Jackson, Hinds County, Mississippi, on the 17th day of September, 1981, and transported against her will across the Mississippi-Alabama state line into Sumter County, Alabama, where the said Opal H. Lowe, a/k/a Peggy Lowe, sustained the aforesaid gunshot wound. That the body of Opal H. (Peggy) Lowe was found in Sumter County, Alabama, on the 27th day of October, 1981.
Appellant contends that the killing of Mrs. Lowe was “murder” that occurred in the State of Alabama for which only Alabama had jurisdiction. He contends that the indictment and trial of appellant for “capital murder” did not change the act of killing from one single crime consummated in Alabama. Appellant cites several cases regarding venue and jurisdiction from courts of several states. We have examined those cases and find they have no application here. Unquestionably, the State of Alabama could have indicted and tried appellant for murder in that state. It did not do so. The first indictment returned against appellant was in Hinds County, Mississippi, from which county Mrs. Lowe admittedly was kidnapped.
As hereinbefore stated, appellant was indicted under the provisions of MCA § 97-3-19. Under that section the crime of “murder” is defined as the killing of a human being without authority of law by any means or in any manner in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being.
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.
(c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson or robbery, or in any attempt to commit such felonies.
The specific indictment returned against appellant was that of “capital murder” under the provisions of MCA § 97-3-19(2)(e) which as hereinbefore set out required conviction for the killing of a human being without the authority of law by any means or in any manner, when done with or without any design to effect death by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery or any attempt to commit such felonies.
The instrument under which appellant was indicted reads as follows:
That Marion Albert Pruett in said District, County and State on the 17th day of September A.D., 1981, was then and there engaged in the commission of the crime of kidnapping of Opal H. Lowe, a/k/a Peggy Lowe, by he (sic) the said Marion Albert Pruett then and there feloniously without lawful authority, forcibly seizing and confining the said Opal H. Lowe, a/k/a Peggy Lowe, with his intent to cause said Opal H. Lowe, a/k/a Peggy Lowe to be confined against her will, contrary to Section 97-3-53, Mississippi Code of 1972, annotated and amended, and while so engaged in said kidnapping, he, the said Marion Albert Pruett, did then and there, without authority of law, feloniously kill and murder Opal H. Lowe, a/k/a Peggy Lowe, a human being, contrary to and in violation of Section 97-3-19(2)(e), Mississippi Code of 1972, annotated and amended.
Indisputably, the first element of the crime of “capital murder” under the indictment was the kidnapping of Mrs. Lowe. This underlying and necessary to be proved felony continued unbroken until the wooded area in Alabama was reached. We then find the only possible controversy in the record regarding the acts constituting the crime. Appellant testified after making Mrs. Lowe disrobe, he was away from her about fifteen minutes before deciding to kill her. Appellant makes the argument that this period of time broke the chain of events constituting the “capital murder.” In addition to this, more than one witness, who visited the scene of the killing with appellant after his apprehension, testified that appellant told them he got no more than around 10 to 15 feet from Mrs. Lowe the entire time. We therefore have two separate admissions. At least it was for the jury to determine whether appellant abandoned the kidnapping and then resumed the act as a mere “murder.” In our opinion under appellant’s own testimony, he kept complete control of Mrs. Lowe. That was the reason he forced her to disrobe. This control existed until appellant shot Mrs. Lowe in the back of her head. As said above, assuming this to be a finding of fact, the testimony of the witnesses contradicted appellant’s testimony that he went to his car for about fifteen minutes before returning and killing Mrs. Lowe. He told them he only went approximately 10-15 feet from her which easily could have resulted in a resolving of the extent of the kidnapping control by the jury.
The killing of Mrs. Lowe in Alabama could not have been capital murder unless she first had been kidnapped. The acts are inseparable under that crime. Appellant contends that the actual pulling of the trigger was the primary element of the capital murder. If this is true, then there would be no kidnapping by appellant and he would have only had a dead body to steal. He stole the live body activating the elements of the crime of capital murder.
Long before the capital murder statute was enacted by the legislature, our statutes included MCA § 99-11 — 17, which provides as follows:
Offenses commenced in and consummated out of state.
Where an offense is commenced in this state and consummated out of it, either directly or by the accused or by any means or agency procured by or proceeding from him, he may be indicted and tried in the county in which such offense was commenced or from which such means or agency proceeded.
It is inescapable that the essential and, indeed, underlying element of the crime of capital murder started in Hinds County, Mississippi, when appellant, with a gun drawn and the money sack in his hand, forcefully took Peggy Lowe from her place of employment and admittedly committed the acts hereinbefore set out regarding the kidnapping and killing.
Appellant attempts to raise an issue regarding his request for, and the court granting, an instruction on the lesser included offense of murder. He contends that if the jury had returned such a verdict, it would have been void and for this reason the jurisdictional question should be decided in his favor. Our first reaction to this contention is that appellant may be correct in principle, but his argument is not reasonable. In Bell v. Watkins, 692 F.2d 999 (5th Cir.1982), the lower court refused to grant the accused an instruction on the lesser included offense of murder. The Fifth Circuit Court held that the instruction should be granted in a capital murder case, “if the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” The appeals court then went on to say, however, “There is no due process violation, however, unless there is some evidence to support an instruction on the lesser included offense.” Furthermore, the appellate court said, “In Mississippi no murder committed during the course of a robbery can be simple murder. Since Bell testified to the robbery any murder committed had to be capital.” We have the same situation here. Although appellant contends that in his view, he was away from the deceased, after stripping her of clothing to keep her in hand, for fifteen minutes before actually killing her, it is our opinion that as a matter of law the underlying felony of kidnapping never ceased under the testimony. We are forced to the conclusion, therefore, that as the kidnapping was admitted by appellant, the killing could not have been simple murder under the Mississippi statute. We do not have the element as in Bell, i.e., a lack of definition of armed robbery. We have the actual sworn testimony of appellant regarding the undisputed kidnapping. We are forced to the conclusion therefore, that even had the lower court in the case sub judice refused the lesser included offense instruction, any error would have been harmless under the Bell decision.
We have to go further and recognize as stated above that the lesser included offense instruction was actually given. A clear answer to this is as stated in Bell. “[N]o rational jury could have acquitted him of kidnapping or robbery on the evidence presented.” In the case sub judice, no rational jury could have acquitted Pruett of kidnapping, even until the time the bullet entered the back of the head of the deceased.
We, therefore, have a situation where appellant voluntarily requested and was given an instruction to which he was not entitled. If wrong in this, however, such does not change a decision of the case. Even if by some strange jury finding, it had returned a verdict of “not guilty” of capital murder but guilty of simple murder, the verdict merely would have been void. Appellant would, therefore, have benefitted from something to which he was not entitled. He was given more than that to which he was entitled and therefore cannot complain.
POINT II. THE LOWER COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS EVIDENCE AND ADMITTING CONFESSIONS INTO EVIDENCE WHICH WERE ELICITED FROM APPELLANT BY PROMISES OF DRUGS FROM AUTHORITIES.
Prior to trial appellant filed a motion to suppress evidence and quash the indictment. This motion recited that appellant was apprehended by law enforcement officers in Stratford, Texas, on October 17, 1981. He was thereafter taken into custody by two officers of the Federal Bureau of Investigation, Agents T. Scott Hendricks and Thomas G. Wagner. The motion does not address any question as to the guilt or innocence of appellant, it already having been assumed by everyone that he was guilty of killing Mrs. Lowe. The motion only addressed whether or not appellant voluntarily agreed to lead officers to her body. Appellant contended in the motion that the two agents offered him cocaine to tell them where the body was located.
Other than the allegations regarding the two FBI agents in Texas, appellant complained that the promises were tendered by O.T. McAlpin of the Jackson Police Department, Detective Monroe and another Jackson police officer, whose name he did not know at that time. The motion stated that these three Jackson police department officers made essentially the same promises as the two FBI agents in Texas. Appellant further contends in the motion that Jackson Police Chief Jim Black and Detective Willie H. Covington ratified the drug promises.
At the pretrial hearing on the motion to suppress, all of the above named officers testified positively on behalf of the state that the allegations of the motion were untrue and all testified in much detail, both on direct and cross examination, as to what actually happened in their relations with Pruett from the time he was arrested until he finally decided to take them to Mrs. Lowe’s body in Sumter County, Alabama. The appellant testified regarding promises of cocaine. He now contends that the state should have reintroduced all the persons he named in his motion to reaffirm their testimony given on direct examination denying ever making any promises of any kind, drug production or otherwise, to appellant. In propounding this contention appellant relies on Agee v. State, 185 So.2d 671 (Miss.1966), and Holt v. State, 348 So.2d 434 (Miss.1977).
It suffices to say that every required element in Agee and Holt, supra, was met. Appellant had filed his petition setting out only the contention that he had been promised drugs to reveal the location of Mrs. Lowe’s body. As hereinbefore stated all persons connected with this contention and named by appellant testified, consuming many pages of testimony denying this contention in detail and explaining everything that occurred. The law does not require foolish actions. This would have been the case had the state been required to resubmit all these officers to repeat everything already testified to under oath including extensive cross examinations.
The personal sworn testimony of appellant as the only defense witness in the guilt phase of the trial, is inconsistent with his contention in the motion to suppress. He testified that the reason he finally decided to lead officers to Mrs. Lowe’s body was so that her family could give her a Christian burial. His testimony was positive that this decision to do this was not based on any promises whatever from anyone.
Under this point appellant contends that the testimony of U.S. Marshals Leonard and Crumpton should have been excluded at the trial. These marshals from the Jackson, Mississippi, office accompanied the entourage that appellant escorted to Mrs. Lowe’s body. It is first noted, as before stated, that the motion to suppress only encompassed the alleged offenses from the time of the appellant’s arrest in Texas until his incarceration in the Jackson, Mississippi, jail. He made no complaint of confessions under duress during his trip from Jackson to the scene of the killing. It is readily apparent that the testimony of United States Marshals Leonard and Crumpton were not required on the hearing on the motion to suppress as they had nothing to do with the allegations of the motion.
As a precaution, however, when appellant’s attorneys objected to the two marshals testifying about what occurred on the trip to Alabama, the trial court wisely excluded the jury and heard the testimony out of the jury’s presence. They were extensively cross examined and any possible error was thereby cured. We reiterate the admission of their testimony at the prior hearing was not required.
On the issue of whether or not appellant, as he testified, voluntarily decided to lead officers to Mrs. Lowe’s body, we have the unusual set of circumstances that he did this by leading them through country back roads in the nighttime hours and straight to Mrs. Lowe’s body, even though he had been at that location and over those roads one time; that is, the day the kidnapping and killing of Mrs. Lowe occurred. We say this to emphasize the intelligence of appellant and the fact he knew what he was voluntarily doing and was not under the influence of drugs. This, of course, was never suggested.
POINT III: THE LOWER COURT ERRED IN SEATING MR. SIDNEY GRAHAM (JUROR #8) ON THE JURY AND APPELLANT WAS DENIED THE OPPORTUNITY TO EXERCISE PEREMPTORY CHALLENGES IN AN INTELLIGENT AND KNOWLEDGEABLE MANNER BECAUSE OF JUROR’S MISSTATEMENTS DURING VOIR DIRE.
During the course of the trial judge’s voir dire questioning of the jury panel members individually, one juror, S.G., stated that he could vote guilty of the crime of capital murder but under no circumstances could he vote for the death penalty. After completion of the voir dire examination, which was done thoroughly by the trial judge, the prosecuting attorney and competent defense attorneys, the jury was selected and placed in the jury box with two alternates. Admittedly, the prosecuting attorney realized that he had made a mistake and confused the ilumber of juror S.G. with another. He had selected S.G., although he was definitely opposed to the death penalty. The prosecutor requested the trial court to allow him to amend his jury striking and either voir dire other jurors or permit an alternate to take the place of Mr. S.G.. The court refused permission to do this, saying it came too late, the state already had accepted the fourteen jurors.
During the above set out request by the prosecuting attorney, the attorneys for appellant vigorously objected to the court granting the prosecutor’s request and vigorously objected to juror S.G. being excused. The trial judge agreed with them. Of course, it does not take much trial experience to know the defense accepted Mr. S.G..
Appellant now contends that the court was in error in not dismissing Mr. S.G.. It should suffice to say that this was vigorously tried to be accomplished by the state over equally vigorous opposition by appellant’s attorneys, who now are trying to put the court in error for seating the juror. The state went so far as to try and secure the sentencing hearing of the bifurcated trial by another jury. This request of the state was refused by the trial court.
There is no question involved in this assignment regarding the propriety of the extensive voir dire examination of the jury panel. The next question, therefore, is why was there a unanimous jury verdict sentencing appellant to death? We do not need to do much surmising in arriving at a conclusion regarding this question. In the first place, it is obvious and also impressive that eleven jurors other than Mr. S.G. were unanimous in their verdict after hearing the testimony shown in the record. There is absolutely no accusation of fraud on the part of juror S.G..
As heretofore seen, appellant was indicted in the First Judicial District of Hinds County, Mississippi, the most heavily populated county, located in the central-western section of the state and the state capital. Prior to trial, appellant’s attorneys filed a motion to change venue of the trial because of extensive publicity, mainly through television and press media. ' The trial court agreed with this motion and changed the venue of the cause to a county in the northeast part of the state, which county is indisputably out of the range of all Hinds County television stations. We have to surmise as to what information, if any, juror S.G. had about the case prior to the trial. It is entirely possible that he had never read or heard of the heinousness of appellant’s actions and entirely possible that he had not had any experience with similar heinous crimes. We, therefore, are led to the reasonable probability that his opinion regarding the death penalty was derived from experiences foreign to the case with which we are now involved.
If any person would ever change his mind regarding a prior opinion against the death penalty in any case, this was a typical case for that change to have been made. Juror G. sat close by appellant when he gave his testimony regarding the details of the robbery, kidnapping and the actions toward Mrs. Lowe up to the time he put a bullet in the back of her head. He heard appellant tell of other murders and robberies. He sat closely to appellant during the entire trial observing and seeing a man who would do what appellant admittedly did in this case and would commit other murders as appellant readily admitted during his testimony. How can it now be said then that Juror G. violated his oath and that because of such violation, appellant is entitled to a new trial. There is nó indication that anything occurred except that the juror changed his mind. There is nothing to indicate duress, undue influence by other jurors, or any other wrong. We find no reversible error here.
POINT IV: THE LOWER COURT ERRED IN ADMITTING AN EDITED TELEVISION INTERVIEW INTO EVIDENCE AT THE SENTENCING PHASE OF THE TRIAL.
Appellant alleges reversible error by the trial court in permitting portions of a taped television interview with appellant in the Jackson, Mississippi, jail the day after he led officers to Mrs. Lowe’s body. The trial court admittedly edited this tape and permitted parts of it to be shown together with sound during the sentencing phase of the bifurcated trial. Appellant’s main contention is that as the tape was used along with other evidence to secure a change of venue, it was thereby improper for it to be presented to the jury in the county to which the case was changed.
The obvious answer to the above contention is that the taped interview was used in the hearing on the motion to change venue solely to show that television viewers in the Hinds County, Mississippi, area would have seen and heard the interview. As above stated, the television range of Hinds County television stations did not reach Lowndes County, where the case was tried, a far distance from Hinds County. There was no evidence whatever that the taped interview was seen by anyone in the Lowndes County area.
A transcription of the questions and answers during the taped interview appears in the record and an examination thereof does not begin to compare with appellant’s sworn testimony at the trial and could not possibly have done him as much harm as his personal testimony before the jury reciting the gory details of his killing of Mrs. Lowe.
Appellant also contends that introduction of the partial video tape in the sentencing phase was error as it was in essence a confession by appellant. As stated, above, this so-called confession was minimal compared to the prior testimony heard by the jury from appellant’s own mouth on the witness stand as to the details of the commission of the crime. We find no merit to this alleged assignment of error.
CONCLUSION
This Court has carefully considered the entire record in the cause together with all briefs, instruments appearing as evidence, exhibits, and everything required of an appellate court. The jury was fully, properly and fairly instructed in both phases of the bifurcated trial. No alleged error is raised in that regard other than on the motion to suppress, and we can find none after a complete review. We have compared this record with prior cases involving the af-firmances of the death penalty by this Court. We have placed in'our minds the facts of all such death cases since this Court’s opinion in Jackson v. State, 337 So.2d 1242 (Miss.1976). A study of these cases include, but are not limited to the following: Washington v. State, 361 So.2d 61 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978); Jordan v. State, 365 So.2d 1198 (Miss.1978); Gray v. State, 375 So.2d 994 (Miss.1979); Culberson v. State, 379 So.2d 499 (Miss.1979); Reddix v. State, 381 So.2d 999, (Miss.1980); Bullock v. State, 391 So.2d 601 (Miss.1980); Edwards v. State, 413 So.2d 1007 (Miss.1982); Johnson v. State, 416 So.2d 383 (Miss.1982); Smith v. State, 419 So.2d 563 (Miss.1982); Wheat v. State, 420 So.2d 229 (Miss.1982); King v. State, 421 So.2d 1009 (Miss.1982); and Evans v. State, 422 So.2d 737 (Miss.1982).
We find after careful examination that the evidence fully supports the jury’s finding of statutory aggravating circumstances as enumerated in MCA § 99-19-101. We find that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in the similar cases considering both the crime and the defendant.
We cannot say with any degree of emphasis that the sentence of death was imposed under the influence of bias, prejudice or any other arbitrary factor.
We have reviewed and fully considered the sworn testimony of appellant confessing to and relating in detail his actions in kidnapping Mrs. Lowe and forcibly carrying her to the wooded area hereinabove described and placing a bullet in her head. The principal reason given by him in confessing all crimes regarding Mrs. Lowe and other murders and armed robberies was that he had become a Christian. A careful reading of appellant’s testimony both direct and on cross examination is not convincing that the jury verdict of death should be set aside for that reason, if true. Also, the record reveals the rebuttal testimony of Lowndes County Deputy Sheriff Luther James Williams during the sentencing phase and after appellant’s testimony to the effect that during the nighttime while he was dispensing medication to the inmates of the Lowndes County Detention Center, he overheard appellant telling a trusty that “he [Pruett] had eleven more places to go to and out of those eleven places someone was gonna make a mistake and that he was — that— that he was gonna make his move then and if anyone got in his way, it was more than likely gonna be their skin instead of his because he was trying to save his own hide.” The jury certainly had the privilege to weigh the above statement of appellant against his prior confession allegedly because of religious convictions.
Regarding the attorneys appointed by the trial court to represent appellant, we feel it our duty to find the following as facts. The attorneys appointed by the court were those of much experience particularly in defending persons accused of crimes both in this state and other states. They are experienced trial attorneys. Their reputation is that of high competence both in preparation and trial. A thorough study of the record reveals that they performed a thoroughly adequate defense of appellant in the trial court. The briefs and arguments before this Court were highly competent. From our knowledge of trial attorneys and particularly the defense of cases such as the one sub judice, it would be hard to secure more competent and experienced attorneys and ones who would have conducted a better defense than was given appellant. They were not “effective” in securing an acquittal, but that was not because they failed to provide appellant competent, proper and fully adequate legal services.
The cause is affirmed and the 13th day of April, 1983, is hereby set for the execution of the death sentence of appellant as provided by law.
AFFIRMED.
WALKER, P.J., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.
PATTERSON, C.J., and BROOM, P.J., concur in part, and dissent in part.
[OPINION BY BROOM, Presiding Judge, type=concurring-in-part-and-dissenting-in-part]
BROOM, Presiding Judge,
concurring in part and dissenting in part:
As to the jury’s finding Pruett guilty as charged, I concur fully with the majority in its affirmance. I would add that a more horrifying and brutish killing cannot be imagined. The act justifies the sentence if properly fixed according to law, but here serious difficulties are manifested by the record insofar as the jury’s fixing the death penalty is concerned. For the following reasons, another jury, properly qualified and constituted should set the penalty.
TRUTH has long been the capstone of all judicial proceedings in western civilization. This is so regardless of whether the issue may be a $10.00 loan owed a lender, or the guilt of one who appears to have perpetrated the most heinous and calloused killing. In the early stage of Pruett’s trial while jurors were being qualified, juror S.G. was voir dired and the following is excerpted from his testimony:
BY MR. GRAHAM: I — I could — could not vote for the death penalty even though he was guilty.
BY THE COURT: What about a vote of guilty as explained to you?
BY MR. GRAHAM: Right, I could vote guilty. For life in prison without pardon.
A little later, the district attorney, Mr. Peters, propounded questions to juror S.G. as shown by the following excerpt from the record:
BY MR. PETERS: You said on your form when they asked “What do you think of the death penalty?”, you put “yes”. When the Judge asked you, you said you could not vote for the death penalty even though guilty. I don’t mean — I’m asking—
BY MR. GRAHAM: On the — on—
BY MR. PETERS: Did you make a mistake on the form?
BY MR. GRAHAM: On the first part, I could convict him, but on the last part, I could give him life — sentence him without — to life imprisonment without pardon, but according to my conscience, I couldn’t give him the death penalty.
BY MR. PETERS: You could not vote for the death penalty in any circumstances?
BY MR. GRAHAM: Right.
BY MR. PETERS: And you would not be able to follow the law and put aside your personal convictions and vote for the death penalty in a proper case.
BY MR. GRAHAM: No, sir.
After the state failed to peremptorily excuse juror S.G., he was accepted by the defense. Later the district attorney, the Honorable Ed Peters, stated, “We have made an error beyond all errors”, and he unsuccessfully sought to have juror S.G. replaced by an alternate. S.G. was left by the trial judge on the jury and concurred with the other jurors in fixing the death penalty. In so doing, S.G.’s action was in direct contradiction to what he stated under oath when questioned in open court by the circuit judge and district attorney who later confessed “error beyond all errors”.
Majority of the Court takes the position that juror S.G. had the right to change his mind after hearing the testimony. If that be in keeping with justice based upon untarnished truth, then why inquire of jurors about their present philosophy concerning death penalty, as we have done through the years before prospective jurors are allowed to become one of the “sacred twelve”? Jurors must be accepted or challenged on what their philosophy is prior to hearing any proof even though testimony may persuade a juror to abandon his or her philosophy. My view is that the trial judge, the prosecutors, and defense lawyers should be able to rely upon what a prospective juror states under oath as to his feelings or philosophy about an issue which is presently to be tried, whether death penalty or some other matter such as whether a juror believes in the law of self defense, etc. Stated differently, the judicial process should not be so concerned with a juror’s right to change his mind as with the confidence of a litigant (including counsel) to accept as true what a prospective juror states concerning his convictions regarding justice and rectitude. This Court should not accept less than fidelity to his oath on the part of a juror. Suppose in another case self-defense is an issue, under the majority opinion a juror might begin his service in a trial saying he believed in the right of self-defense and then change his mind.
No case is cited by the majority opinion or by the state in its brief which removes the “taint” resulting in the present trial by the inadvertent error of the prosecution. In order that the “taint” be expiated, the punishment of the defendant should be determined by another panel of jurors who will themselves, with fidelity to their solemn oaths, discharge their duty as fair and impartial jurors.
PATTERSON, C.J., joins in this opinion.
675 P.2d 418
STATE of New Mexico, Plaintiff-Appellee, v. Marion A. PRUETT, Defendant-Appellant.
No. 14912.
Supreme Court of New Mexico.
Jan. 31, 1984.
Paul Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Martha A. Daly, Rothstein, Bailey, Bennett & Daly, Santa Fe, for defendant-appellant.
[OPINION BY WALTERS, Justice. type=majority]
OPINION
WALTERS, Justice.
Defendant, convicted of first degree murder and sentenced to life imprisonment, raises two issues on appeal: (1) Whether the trial court’s denial of a continuance was an abuse of discretion; and (2) Whether the confession given by defendant to a Jackson, Mississippi, police officer should have been suppressed. We affirm.
1. Defendant was arraigned on September 14,1982, at which proceeding he announced that he would represent himself with assistance from the public defender. Trial was set for December 13th. At a continuance motion hearing on December 7th, a conflict appeared and the trial court directed appointment of new counsel. In January another continuance was requested, and the trial date was set for February 7, 1983.
Defendant contends that the State’s extended witness list, many whose addresses or telephone numbers were not shown on the list, made it impossible for defendant to find and interview all of the anticipated witnesses in the time between appointment of counsel and date of trial. Additionally, the name of the Crimestoppers informant was not known, and defendant argues that because he was unable to track down the informant, he was denied the opportunity to impeach the State’s principal witness, B.S., who was named by the Crimestoppers informant as the murderer.
Defendant also claims that the time constraint prevented him from discovering information contained in FBI reports and documents of the federal witness protection program until after the verdict was returned. All of those incidents contributed, says defendant, to a denial of his right to adequately prepare his defense, in contravention of the Sixth Amendment and of N.M.Const. art. II, § 14.
The State’s witnesses for whom addresses and telephone numbers were not provided were not called to testify. Defendant asserts that their mere listing “establishes their involvement in some aspect of the case” and, therefore, information from any of them “could” have benefited his defense. But, as in State v. Perez, 95 N.M. 262, 620 P.2d 1287 (1980), no one had the slightest notion when or whether these witnesses would have been located or made available for trial testimony. Perez indicates that continuance for a “reasonable” time to find a witness is not improper. With eight weeks between the time counsel was appointed and the date of trial, and no assurance that locating the witnesses was imminent or that their information would assist the defense, we cannot say that the court abused its discretion in refusing a continuance on that ground.
With regard to the information sought from federal records, it appears that defendant in January, 1983, requested some material through the Freedom of Information Act that was not forthcoming. On February 2, 1983, at defendant’s request, the trial court signed an order directing the U.S. Marshal to produce certain files for inspection on. February 7th. On February 8th, the U.S. Attorney appeared in court and advised that defendant’s subpoenaes did not comply with federal regulations. Two days after the verdict was received, and following compliance with the federal requirements, the requested documents were delivered to the court. The FBI records were made available to counsel but were not included in the record on appeal; the others were sealed by the court.
The above summary discloses the lack of due diligence exercised by defendant in attempting to obtain the federal records. See Perez. Whether defendant was prejudiced by his inability to review the sealed federal documents before the trial ended is a matter of pure speculation but, in any event, it was failure to follow proper procedure that delayed their delivery. We note, also, that denial of his motion for a new trial, at which hearing the FBI records were cited, is not appealed. We can therefore assume that the FBI documents presented at that hearing were insufficient to persuade the trial court that they contained newly discovered material evidence or that their absence caused unfairness in the first trial.
The grant or denial of a motion for continuance based on absence of evidence rests in the sound discretion of the trial court. State v. Brewster, 86 N.M. 462, 525 P.2d 389 (Ct.App.1974). Defendant has the burden not only of showing an abuse of that discretion, but that it was to his injury or prejudice. State v. Nieto, 78 N.M. 155, 429 P.2d 353 (1967). No such showing was made in the instant case.
2. Defendant's attack on the admissibility of his confession to Mississippi authorities is grounded in his claim that he would have doné or said anything to obtain cocaine and that he had been promised a supply of the drug if he would confess. His version of the confession circumstances differed in that respeét from other evidence received by the trial court. The Mississippi officer testified that defendant had been read his rights; that he told the officers that he knew his rights better than they did; that he refused to sign a waiver but, nevertheless, he did confess to commission of several crimes, including the one he was tried for. The court believed the officer’s version, thus resolving the conflict in the evidence against defendant after a full hearing on its voluntariness. State v. Armstrong, 82 N.M. 358, 482 P.2d 61 (1971). There was evidence to support the trial court’s determination of admissibility. State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976).
The defendant’s conviction is AFFIRMED.
RIORDAN and STOWERS, JJ., concur.
Marion Albert PRUETT v. STATE of Mississippi.
No. DP-27.
Supreme Court of Mississippi.
Sept. 2, 1987.
Stephen B. Bright, Palmer Singleton, Atlanta, Ga., Dennis C. Sweet, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Felicia C. Adams, Sp. Asst. Atty. Gen., Jackson, for appellee.
[OPINION BY ANDERSON, Justice, type=majority]
ANDERSON, Justice,
for the Court:
I.
This case is before us on the application of Marion Albert Pruett for entry of an order requiring that he be discharged from custody and that the State be barred from prosecuting him further on the charge of capital murder. The grounds of the motion are that Pruett was ordered released from custody by the United States District Court for the Northern District of Mississippi pursuant to his application there for writ of habeas corpus, unless the State retried Pruett within 120 days. Everyone agrees that the 120 day period expired on April 3, 1987, without Pruett having been put on trial again.
Pruett presented this claim to the Circuit Court of the First Judicial District of Hinds County which denied him relief and ordered that he stand trial once again on the charge of capital murder. His present application to this Court invokes a variety of procedural devices — writ of habeas corpus and/or writ of prohibition and/or writ of mandamus. In substance, Pruett is simply appealing the Circuit Court’s refusal to hold that his retrial is precluded by violation of the 120 day time limitation imposed by the United States District Court for the Northern District of Mississippi.
II.
Petitioner, Marion Albert Pruett, was indicted for the September 17, 1981, capital murder of Opal H. Lowe a/k/a Peggy Lowe by the Grand Jury of the Circuit Court of Hinds County, Mississippi, First Judicial District. Pruett’s case was transferred to the Circuit Court of Lowndes County, Mississippi, where he was found guilty of capital murder and sentenced to death. This Court affirmed on February 23, 1983. Pruett v. State, 431 So.2d 1101 (Miss.1983). A petition for rehearing was denied on March 16, 1983. Pruett filed a petition for writ of certiorari which was denied on March 28, 1983. Pruett v. Mississippi, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).
Upon denial of certiorari, Pruett filed an application for leave to file a petition for writ of error coram nobis with this Court. On January 11, 1984, in a written opinion this Court denied the application. Pruett v. Thigpen, 444 So.2d 819 (Miss.1984).
Pruett then filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi. On March 21, 1986, the District Court entered its memorandum opinion granting habeas relief for a guilt phase error and ordering the State to release petitioner from custody or retry him within 120 days, 665 F.Supp. 1254.
Both the State and Pruett appealed this decision to the United States Court of Appeals for the Fifth Circuit. The Court of Appeals affirmed the judgment of the District Court on November 7, 1986, in an unpublished opinion. Pruett v. Thigpen, 805 F.2d 1032 (5th Cir.1986). A petition for writ of certiorari was taken from this ruling by the State. That petition was denied on April 28, 1987. Thigpen v. Pruett, — U.S.-, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987).
On May 18, 1987, Pruett filed with the Circuit Court of Hinds County, Mississippi, a Motion to Dismiss Prosecution and Discharge from Custody. During a hearing on May 18, 1987, the Circuit Court set a trial date of July 13, 1987. Briefs were filed by both sides and oral argument was heard in June 16, 1987. The Circuit Court denied the motion after consideration of the briefs and hearing arguments. The petitioner also filed a Motion to Stay Further Proceedings Pending Interlocutory Review and Final Determination of Whether Mississippi May Retry the Defendant. The Court also denied this motion on June 16, 1987.
On June 18, 1987, petitioner, in an attempt to get the Circuit Court to reconsider its ruling of June 16, 1987, filed a Petition for Writ of Habeas Corpus or Other Appropriate Relief Barring Petitioner’s Retrial. This petition was denied by the Circuit Court on June 18, 1987, “for the reasons expressed in th[e] court’s ruling of June 16, 1987.” The present proceedings before this Court have followed.
III.
Pruett raises two questions in this emergency petition for remedial relief. First, that the trial court erred in holding that the state could retry him even though the State did not retry him within 120 days after the mandate of the Fifth Circuit went into effect and, second, that his federal plea agreement and the memorandum between himself and the federal government prohibit his retrial in Mississippi.
A. The 120 Day Question
Pruett contends that since the state did not retry him within 120 days it has lost the right ever to do so. Section 28 U.S.C. § 2254(a), states in part that a writ of habeas corpus may be filed on behalf of a “person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Where a defendant has sustained his right to be discharged in habeas, it is because a court has determined some federal right has been denied, such as denial of counsel. Such a finding does not reflect on the determination of guilt or innocence, but reflects solely the fairness of his earlier criminal trial. The habeas corpus court, unlike an appellate court in a criminal case cannot grant a new trial in the criminal case, it can only vacate the conviction or sentence that holds a defendant in custody.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the United States Supreme Court restated the parameters of habeas corpus. The Court stated:
Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. Re Medley, 134 U.S. 160, 173, 10 S.Ct. 384, 33 L.Ed. 835 (1890). [Emphasis added]
372 U.S. at 431, 83 S.Ct. at 844, 9 L.Ed.2d at 864.
Here the United States District Court for the Northern District of Mississippi, in granting habeas corpus relief conditioned the State’s continued custody of Pruett on the State retrying him within 120 days. Clearly, he vacated the conviction and sentence, but he did not quash the indictment under which Pruett was charged nor did he find the arrest of Pruett invalid. Pruett is still properly in the custody of the State of Mississippi on the basis of the valid indictment lodged against him and the detainers placed on him by other states and jurisdictions. Pruett is a habeas releasee and can be dealt with as any other prisoner who has not yet been tried. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Carter v. Rafferty, 781 F.2d 993 (3d Cir.1986).
The federal habeas corpus courts have long used the conditional grant of writs of habeas corpus in cases of this nature. Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 288, 68 L.Ed. 549, 557 (1923). A conditional grant is one that simply requires the states to release a defendant from custody based upon the invalid conviction unless he were retried within a certain number of days or months. This allows the state to retain the person in custody pursuant to the invalid conviction for this period without releasing him. A conditional grant of habeas does not prevent the state from retrying after the expiration of the time set in the order of the court, it only requires that the defendant be released from custody on the basis of the conviction that was vacated.
In the case of Fisher v. Rose, 757 F.2d 789 (6th Cir.1985) the Circuit Court of Appeals, in a situation much like that presented here, held that the “district court abused its discretion in barring retrial by the state.” In reaching this conclusion the court analyzed the law as follows:
While Congress has entrusted to the federal courts the power to dispose of petitions for writs of habeas corpus “as law and justice require,” 28 U.S.C. § 2243; Irvin v. Dowd, 366 U.S. 717, 728-29, 81 S.Ct. 1639, 1645-46, 6 L.Ed.2d 751 (1961); Levy v. Dillon, 415 F.2d 1263, 1265 (10th Cir.1969), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978). A conditional grant of a writ of habeas corpus requires the petitioner’s release from custody if new proceedings are not commenced by the state within the prescribed time period. United States ex rel. Brown v. Rundle, 427 F.2d 223, 224 (3d Cir.1970). However, the state is not precluded from rearresting petitioner and retrying him under the same indictment. Irvin, 366 U.S. at 728, 81 S.Ct. at 1645. United States ex rel. Craig v. Myers, 329 F.2d 856, 860 (3d Cir.1964); United States ex rel. Lowry v. Case, 283 F.Supp. 744, 745 (E.D.Pa.1968).
757 F.2d at 791.
See also Martin v. Rose, 787 F.2d 591 (6th Cir.1986); and Rose v. Engle, 803 F.2d 721 (6th Cir.1986).
The order of the United States District Court for the Northern District of Mississippi dated March 21, 1986, required the State of Mississippi to release Pruett from custody at the conclusion of 120 days if it had not retried him. As in Fisher, this was a conditional grant of habeas corpus requiring the petitioner be released from custody pursuant to the invalid conviction if new proceedings were not commenced within the prescribed time period. The order of the United States District Court does not preclude the State of Mississippi from retrying petitioner on the indictment.
B. The Federal Plea Agreement
Pruett further contends this trial is also prevented by his agreement with the federal government. It is clear that the agreement does not prevent the retrial of Pruett on the charge of capital murder and neither binds nor purports to bind the State of Mississippi in any way in its prosecution of Pruett because the State of Mississippi was not a party to that agreement. The agreement simply provides for an .orderly succession of custody among the various jurisdictions with an interest in Pruett. By virtue of this agreement, if Pruett’s sentence is reversed or voided the “defendant shall be transferred to whichever jurisdiction then has an outstanding valid sentence.” This transfer requirement in no way extinguishes Mississippi’s right to retry Pruett. In fact the agreement signed by Pruett, his counsel and the United States Attorney clearly states:
[T]he United States will transfer the defendant to the other state jurisdictions and thereafter other federal jurisdictions which may now have or hereafter have pending criminal charges against the defendant; upon the completion of all pending criminal matters in all jurisdictions the United States will return the defendant to the State of Mississippi to await execution of the sentence heretofore rendered against the defendant by the State of Mississippi; should said sentence be reversed or otherwise rendered void for any reason, the defendant shall be transferred to any other jurisdiction with an outstanding sentence on said defendant.
* * * # * *
This agreement shall not bind any authority to any act which is contrary to law and it shall not act as a stay to prevent imposition of a sentence upon the defendant which may be greater than the one he may be serving.
This agreement and the Order of the Southern District Court, entered pursuant thereto on May 13, 1982, required that the petitioner be “transferred to whichever jurisdiction then has an outstanding valid sentence.” Nothing in District Court s Order contemplates that Pruett could not be retried on the outstanding indictment in Hinds County, Mississippi.
The language of Defendant’s Exhibit E succinctly states that Pruett can be transferred to any jurisdiction “which may have or hereafter have pending criminal charges against the defendant.” Mississippi now has pending criminal charges against Pruett.
Neither the order of the United States District Court for the Southern District nor the agreement between Pruett and the United States Government will be violated by retrying Pruett on the capital murder indictment pending in the Circuit Court of Hinds County, Mississippi, First Judicial District.
If Pruett believes there has been a violation of the memorandum of understanding or the plea agreement he entered into with the federal government, his remedy is to attack his plea of guilty in the federal court.
PETITION FOR WRIT OF HABEAS CORPUS AND/OR WRIT OF PROHIBITION AND/OR WRIT OF MANDAMUS REQUIRING TRIAL COURT TO DISCHARGE PETITIONER AND BAR CAPITAL MURDER RETRIAL DENIED
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, and GRIFFIN, JJ., concur.
ROBERTSON, PRATHER and SULLIVAN, JJ., dissent.
[OPINION BY ROBERTSON, Justice, type=dissent]
ROBERTSON, Justice,
dissenting:
With respect, the majority today ignores the laws of the United States and of grammar when it holds that Marion Albert Pruett may be retried in the Circuit Court of Hinds County, notwithstanding conceded violation of a final order of the United States District Court for the Northern District of Mississippi which reads:
That the State of Mississippi release the Petitioner [Pruett] from custody pursuant to the aforesaid conviction unless the State elects to retry Petitioner on such charge within one hundred twenty (120) days....
Everyone agrees that the 120 day period expired on April 3, 1987, without any retrial having commenced.
When federal habeas corpus relief is granted, it has long been the custom that the U.S. District Court order the petitioner discharged from custody unless the state retry him within “a reasonable time.” See, e.g., Rogers v. Richmond, 365 U.S. 534, 549, 81 S.Ct. 735, 744, 5 L.Ed.2d 760, 771 (1961). It is the function of the District Courts to state specifically just what such a reasonable time consists of and within what time retrial is allowable. See, e.g., Irvin v. Dowd, 366 U.S. 717, 729, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751, 759-60 (1961). Although I find no case which has expressly so stated, it seems apparent that at least one function of the time limitation upon retrial is to implement the Sixth Amendment right to a speedy trial, or, as in cases such as these, speedy retrial.
In any event, the order of the United States District Court stands. Any hint of authority we may have had to ignore its terms is withdrawn by the Supremacy Clause, U.S. Const. Art. VI, § 2. Sanders v. State, 429 So.2d 245, 248, 251 (Miss.1983); Bolton v. City of Greenville, 253 Miss. 656, 666, 178 So.2d 667, 672 (1975).
We have two expressions on this point from the United States Court of Appeals for the Fifth Circuit. Hammontree v. Phelps, 605 F.2d 1371, 1381 (5th Cir.1979) holds that, absent state retrial within “a reasonable time,” the State “must permanently discharge him from custody.” 605 F.2d at 1381; see also Tifford v. Wainwright, 588 F.2d 954, 957 (5th Cir.1979) (affirming release of petitioner where state failed to comply with conditional writ requiring retrial within ninety days).
There is other authority to like effect. See Grasso v. Norton, 520 F.2d 27, 37-38 (2d Cir.1975) (affirming discharge where failure to comply with conditions of writ); Tyler v. Croom, 288 F.Supp. 870, 874 (E.D. N.C.1968) (order releasing petitioner from “all custody and restraint” entered after state failed to act within reasonable time concerning court’s order); United States Ex Rel. Jones v. Morris, 430 F.Supp. 478, 481 (N.D.Ill.1977); Homan v. Sigler, 283 F.Supp. 404, 407 (D.Neb.1968) (petitioner order “released and permanently discharged from the custody of the respondent” when respondent failed to comply with conditional writ); Gray v. Swenson, 302 F.Supp. 1162, 1169 (W.D.Mo.1969) (failure of Missouri to comply with court’s order within ninety days will result in permanent discharge of petitioner), aff'd. 430 F.2d 9 (8th Cir.1970); Renfro v. Swenson, 315 F.Supp. 733, 745 (W.D.Mo.1970) (permanent discharge ordered unless state provides hearing within ninety days).
I am aware that there are cases — all, I might add, outside the Fifth Circuit — suggesting that the State’s right to retry a federal habeas petitioner is not impaired in the sense that the grant of the federal writ merely vacates the conviction under which the petitioner is held, not the indictment. At most, these cases suggest that the State in the case at bar had a legitimate grounds for appeal of the 120 day limitation imposed in the order of the United States District for the Northern District of Mississippi. No such appeal was taken, and without doubt the order is now final. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).
The State is now procedurally barred from complaining of that which it had the opportunity to challenge but for whatever reason failed to do so. We have no qualms about invoking procedural bars when it means the defendant must die. See, e.g., Evans v. State, 485 So.2d 276, 280-81 (Miss.1986); Evans v. State, 441 So.2d 520, 522 (Miss.1983). I do not see why the court should gag at invoking a legally analogous bar where in consequence life may be preserved.
More to the point, I simply cannot follow the logic of Fisher v. Rose, 757 F.2d 789, 791 (6th Cir.1985) and the other cases cited by the prosecution. The reasonable time rule, if thought about, fudges a little bit on behalf of each party. It fudges on behalf of the State in that it prevents the petitioner’s immediate discharge, the remedy one is traditionally thought entitled to when a writ of habeas corpus is granted. It fudges in favor of the defendant by making concrete and specific the time limitations within which the petitioner may be retried.
Accepting, for the sake of argument, the arrid logic that granting the writ vacates the conviction, but not the indictment, this does not, and rationally cannot, empower the State to retry the petitioner. Of course, the State had the right to hold him under the outstanding indictment, for it is that indictment which is a constitutionally procedural requisite to Pruett’s retrial within 120 days. At the end of that 120 days the force of the indictment was spent. It becomes an indictment technically valid but constitutionally important, for there is no way in logic or in law the 120 day viability of the indictment may be bootstrapped into a retrial thereafter.
But in reality today’s question is not whether the indictment was constitutionally infirm but whether the State had the authority to retry him under any circumstances. The Supremacy Clause instructs that this question may be answered only by reference to the valid and enforceable final order of the United States District Court. The order entered March 21,1986, provides the State of Mississippi two options: (1) “release the petitioner from custody” or (2) “retry the petitioner on such charge within 120 days.” That these are the only options available is made clear by the subsequent order of the District Court of April 8, 1986. That is the order which stayed the March 21, 1986, order pending appeal. In the April 8 order the District Court referred to its March 21 order as one “requiring the State to either release petitioner or retry him within 120 days.” Thereafter, the same order again characterized the March 21 order as one “discharging the petitioner ... [or] requiring the State to grant him a new trial within 120 days.”
The State of Mississippi has no more authority to ignore the time limitations imposed here that it had with respect to those directed in Gates v. Collier, 501 F.2d 1291 (Miss.1974), affirming 849 F.Supp. 881 (N.D.Miss.1972); or Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); or Meredith v. Fair, 306 F.2d 374 (5th Cir.1962). That this is so is a function of the Supremacy Clause.
As all know in recent years the State has missed few opportunities to invoke procedural bars against the criminally accused or to claim that defendants have waived constitutionally secured rights. I would have the State hoist upon its own petard.
PRATHER and SULLIVAN, JJ., join in this opinion.
Marion Albert PRUETT v. STATE of Mississippi.
No. 89-CA-0814.
Supreme Court of Mississippi.
Dec. 27, 1990.
Clive A. Stafford Smith, Stephen B. Bright, Palmer Singleton, Atlanta, Ga., for appellant.
Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Jackson, for appellee.
[OPINION BY SULLIVAN, Justice, type=majority]
SULLIVAN, Justice,
for the Court:
This appeal was argued on the same day as Wilson v. State, 574 So.2d 1324 (Miss.1990), and 574 So.2d 1338 (Miss.1990), and is controlled by our holding therein.
Mississippi Code Annotated § 99-15-17 (Supp.1990), is not unconstitutional and this case is reversed and remanded for a proper hearing on expenses under the statute.
REVERSED AND REMANDED FOR A HEARING ON THE APPROPRIATE AMOUNT OF EXPENSES.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON and BLASS, JJ., concur.
ROBERTSON, J., concurs by separate written opinion.
ANDERSON, J., dissents.
PITTMAN, J., not participating.
[OPINION BY ROBERTSON, Justice, type=concurrence]
ROBERTSON, Justice,
concurring:
Our statutory cap on fees and expenses for court appointed counsel has been on the books for years, and I think it apparent to all who will see that the statute is unconstitutional and unenforceable as applied. I say this in the sense that, not only in capital cases, the statute in a major way inhibits the state’s discharge of its Gideon -based duty to provide each criminally accused effective assistance of counsel. I have no doubt of our authority and responsibility under the principles articulated in Hosford v. State, 525 So.2d 789 (Miss.1988), to strike the statute and order reasonable compensation for court appointed counsel. If an adequate courthouse is essential to the administration of justice, so are competent counsel. I concur in the rationale articulated by Justice Anderson in his separate opinion insofar as it follows Hosford.
The Takings argument seems more problematical. For one thing, it is at odds with the dominant theme of federal takings jurisprudence. Lawyers like others must endure the petty larceny of the police power. Federal law suggests to my mind that there is no taking unless the lawyer is effectively put out of business, see First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), although concede the phrase “or damaged” in this state’s Takings Clause makes the point more viable. I am also dubious of the Equal Protection argument.
If I appreciate correctly the practical effect of the majority’s reading of the statutory phrase “actual expenses”, it will effectively empower our circuit courts to order the public treasurer to deliver to court appointed counsel a sum somewhat in excess of $25.00 per hour. Whether this delivery be called a payment or a reimbursement is a matter of semantics without economic or constitutional significance. The majority effectively skins the cat, and, although I would prefer Justice Anderson’s Hosford based approach, I concur in the majority’s holding and rationale.
[OPINION BY ANDERSON, Justice, type=dissent]
ANDERSON, Justice,
dissenting:
Today the majority has determined that § 99-15-17 is neither unconstitutional nor unreasonable. The majority comes to this conclusion while erroneously relying on Young v. State, 255 So.2d 318 (Miss.1971) and Board of Supervisors of George County v. Bailey, 236 So.2d 420 (Miss.1970). Moreover, the majority refuses to respect this Court’s obligation and authority as explained most recently in Hosford v. State, 525 So.2d 789 (Miss.1988). What concerns me more, however, is that the majority comes to this bizarre conclusion when the parties, the appellants and the State, have virtually stipulated that the statute is unreasonable. Furthermore, trial judges in this state also have recognized that this statute has infringed upon their duty to appoint and adequately compensate counsel involved in capital litigation.
When counsel, such as those involved in these cases, have dedicated this extraordinary amount of time, effort, energy and expertise to the representation of those, who people believe deserve the least help because of the crimes they have allegedly committed, this Court must not hesitate to assure that counsel be compensated at a level that would not be confiscatory. Of course the Court must be concerned with the economics involved, but we can not fall short of our obligation to provide an indigent defense system that works.
With these thoughts, I present the following opinion which was prepared initially as the majority opinion. Because this opinion failed to maintain a majority, I submit it in its entirety as a dissent.
In this consolidated appeal with Wilson v. State, 574 So.2d 1338 (Miss.1990), this Court has been called upon to address the constitutionality of Mississippi Code Annotated, Section 99-15-17 (Supp.1990), which states:
The compensation for counsel for indigents as provided in Section 99-15-15, shall be approved and allowed by the appropriate judge and in any one (1) case may not exceed one thousand dollars ($1,000.00) for representation Provided, however, in a capital case two (2) attorneys may be appointed, and the compensation may not exceed two thousand dollars ($2,000.00) per case In addition, the judge shall allow reimbursement of actual expenses. The attorney or attorneys so appointed shall itemize the time spent in defending said indigents together with an itemized statement of expenses of such defense, and shall present same to the appropriate judge. The fees and expenses as allowed by the appropriate judge shall be paid by the county treasurer out of the general fund of the county in which the prosecution was commenced.
In these two cases, the appellants have presented several arguments attacking the constitutionality of this statute. The State, on the other hand, has failed to rebut sufficiently any of these arguments presented in both cases. As a matter of fact, the State only presented a cursory response in its brief to this major subject. Moreover, in its brief and at oral argument, the State has conceded, confessed, and basically stipulated that the limitation provided in § 99-15-17 is unreasonable. In light of the appellants’ arguments and the State’s confession, we conclude that trial courts as provided in Hosford v. State, 525 So.2d 789 (Miss.1988), have the right and the obligation to compensate counsel representing indigent defendants at the rate that we establish today.
On this day, we issue an in depth opinion because there are many concerns which impact adversely on our indigent defense system, and we are compelled to address these issues. Our system is crying for help, and this Court must step forward to provide the antidote for the cure or at least provide the necessary assistance to get temporary relief. In prescribing this relief, we note that the State, by stipulation, confession, and by failing to address adequately the issue in both of its opportunities, has consented to the reasonableness of our solution.
I.
DEATH IS DIFFERENT
Before discussing the assignments, however, it is proper to emphasize the nature of capital cases in general.
The punishment given to defendants convicted of capital crimes is death, the only punishment that may involve the conscious infliction of physical pain. Furman v. Georgia, 408 U.S. 238, 288, 92 S.Ct. 2726, 2751, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). Throughout the capital jurisprudence since Furman every Supreme Court justice has insisted or at least endorsed the notion that death is different. See, e.g. Spaziano v. Florida, 468 U.S. 447, 468, 104 S.Ct. 3154, 3166, 82 L.Ed.2d 340 (1984) (Stevens, J., concurring in part and dissenting in part) (“In the 12 years since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), every member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique stan-dards_”) (footnote omitted); California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983) (majority opinion authored by O’Connor, J., and joined by Burger, C.J., and White, Powell, Rehnquist, JJ.,) (“Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.”) Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (Stevens and Powell, JJ., concurring) (“Death as a punishment is unique in its severity and irrevocability.”) Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980) (majority opinion authored by Stevens, J., and joined by Burger, C.J., and Brennan, Stewart, Blackmun and Powell, JJ.) (“As we have often stated, there is a significant constitutional difference between the death penalty and lesser punish-ments_”) Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980) (majority opinion authored by Rehnquist, J., and joined by Burger, C.J., and Stewart, White and Blackmun, JJ.) (“This theme, the unique nature of the death penalty for purposes of eighth amendment analysis, has been repeated time and time again in our opinions.” (citations omitted)); Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 1098, 84 L.Ed.2d 53 (Burger, C.J., concurring) (In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases.); Saffle v. Parks, — U.S. -, -, 110 S.Ct. 1257, 1262, 108 L.Ed.2d 415, 427 (1990) (majority opinion authored by Kennedy, J., and joined by Rehnquist, C.J., White, O’Connor, and Scalia, JJ.) (“[ljongstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary.”) citing Woodson v. North Carolina 428 U.S. 280, 303-05, 96 S.Ct. 2978, 2990-92, 49 L.Ed.2d 944 (1976) (plurality opinion); Murray v. Giarrantano, 492 U.S. 1, -, 109 S.Ct. 2765, 2777, 106 L.Ed.2d 1, 19 (1989) (Stevens, J., dissenting and joined by Brennan, Marshall, Blackmun, JJ.) (“The unique nature of the death penalty ... necessitates additional protections during pretrial, guilt and sentencing phases, ...” (footnote omitted)); (emphasis added) Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 2721, 101 L.Ed.2d 702 (1988) (Scalia, J., dissenting) (referring to “death is different” theme as a “motto”); Clemons v. Mississippi, — U.S.-, 110 S.Ct. 1441, 108 L.Ed.2d 725, 753 (1990) (Blackmun, Brennan, Marshall and Stevens, concurring and dissenting) (By now it is settled law that death is different and this difference calls for greater degree of reliability). See also, Bonnie, The Dignity of the Condemned, 74 Va.L.Rev. 1363, 1364-365.
This Court also has emphasized and reiterated the fact that “the penalty of death is different in kind from any other punishment imposed under our system of criminal justice.” Jackson v. State, 337 So.2d 1242, 1252 (Miss.1976) (citation omitted); see also, Griffin v. State, 557 So.2d 542, 552 (Miss.1990) (In capital murder cases this Court has applied a heightened standard of review) (emphasis added); Williamson v. State, 512 So.2d 868, 872 (Miss.1987) (“What may be harmless error in a case with less at stake becomes reversible error when the penalty is death.”) (quoting Irving v. State, 361 So.2d 1360, 1363 (Miss.1978); Smith v. State, 499 So.2d 750, 756 (Miss.1986) (“where the death penalty has been imposed, thoroughness and intensity of review are heightened.”); West v. State, 485 So.2d 681, 690 (Miss.), cert. denied, 479 U.S. 983, 107 S.Ct. 570, 93 L.Ed.2d 574 (1986) (Anderson, J., dissenting, joined by Walker and Roy Noble Lee, P.JJ.,) (“[i]n death penalty cases our responsibility is awesome and we will turn every stone to assure the accused a fair trial.”) (emphasis added); Pinkton v. State, 481 So.2d 306, 308 (Miss.1985) (Because of the terrible character of this penalty, we have long taken a different approach in reviewing capital cases.) (Emphasis added) Fisher v. State, 481 So.2d 203, 211 (Miss.1985); Fuselier v. State, 468 So.2d 45, 50 (Miss.1985); Jones v. State, 461 So.2d 686, 690 (Miss.1984) (“This theme, the unique nature of the death penalty, has been repeated time and time again.” [citations omitted]). Moffett v. State, 456 So.2d 714, 721 (Miss.1984); Billiot v. State, 454 So.2d 445, 454 (Miss.1984); Neal v. State, 451 So.2d 743, 750 (Miss), cert. denied 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984); Williams v. State, 445 So.2d 798, 810 (Miss.1984), cert. denied 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985); Laney v. State, 421 So.2d 1216, 1217 (Miss.1982). See also, Augustine v. State, 201 Miss. 731, 29 So.2d 454, 454 (1947) (“we have searched the record in vain for some ground on which to reverse the conviction ... [b]eeause we have felt it our duty to reverse the case if we could find grounds for so doing.”).
A.
WHAT DOES A LAWYER HAVE TO DO IN REPRESENTING AN ACCUSED?
Not only is the penalty different from all punishments imposed in this society, but the legal proceedings involved with capital litigation distinguish it from most other proceedings tried in our courts. Counsel must have particular skills for competent representation in a capital case because these cases involve' “extraordinary circumstances and unusual representation.” White v. Board of Commissioners, 537 So.2d 1376, 1380 (Fla.1989) (quoting Makemson v. Martin County, 491 So.2d 1109, 1110 (Fla.1986), cert. denied Martin County Florida v. Makemson, 479 U.S. 1043, 107 S.Ct. 908, 93 L.Ed.2d 857 (1987)) Criminal law itself is a “demanding, rapidly changing and complex specialty.” Jewell v. Maynard, 383 S.E.2d 536, 542 (W.Va.1989). But, capital cases “raise complex additional legal and factual issues beyond those raised in an ordinary felony trial.” People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994 (1985). In fact, “death penalty litigation has become so highly specialized that few attorneys have ‘even a surface familiarity with seemingly innumerable refinements put on Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and progeny.’ ” Irving v. State, 441 So.2d 846, 856 (Miss.1983), cert. denied 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985) (citation omitted).
Representation of the accused in a capital case involves a complex body of constitutional law and unusual procedures that do not apply in other criminal cases. Probably one of the most distinctive factors of the proceeding is that a bifurcated trial is necessitated. During the guilt phase counsel must consider and strategically plan what type of defense he will present during the guilt phase. Inevitably whatever defense he uses during this phase will have some affect on the jury during the sentencing phase as well. For example, if his defense is one of denial, then if the jury still finds him guilty, it is likely that the jury will not look or listen too favorably to the evidence that the defendant produces during the sentencing phase. Therefore, “at a minimum, counsel has a duty to interview potential witnesses and make an independent investigation of the facts and circumstances of the case.” State v. Tokman, 564 So.2d 1339, 1342 (Miss.1990).
Whatever penalty is chosen by the jury in a capital case is often determined by defense counsel’s ability to present a “motion picture” of his client’s life to rebut the gruesome “snapshot” that the prosecution has projected during the guilt phase and reiterates during the sentencing phase. See, Sherrell, Successive Chances for Life: Kuhlmann v. Wilson, Federal Habeas Corpus and the Capital Petitioner, 64 N.Y.U.L.Rev. 455, 477 (1989). In presenting the motion picture of the now convicted defendant, counsel must also present whatever mitigating evidence he can find. This is so critical that the Supreme Court has consistently emphasized that a defendant can present any mitigating evidence that might persuade the sentencer to vote for a life sentence. See, Skipper v. South Carolina, 476 U.S. 1, 4-9, 106 S.Ct. 1669, 1670-74, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); Accord. Turner v. State, 573 So.2d 657, 674 (Miss.1990); Leatherwood v. State, 473 So.2d 964, 970 (Miss.1985). Jordan v. State, 518 So.2d 1186 (Miss.1988).
The only way counsel can discover this mitigation evidence is through extensive pretrial investigation. Counsel has
a duty to investigate the client’s life history, and emotional and psychological make-up, as well as the substantive case and defenses. There must be an inquiry into the client’s childhood, upbringing, education, relationships, friendships, formative and traumatic experiences, personal psychology, and present feelings. The affirmative case for sparing the defendant’s life will be composed in part of information uncovered in the course of this investigation, and the thoroughness and care which it is conducted, cannot be overemphasized.
Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.J.U.L.Rev. 299, 323-24 (1983). See also, Tokman, 564 So.2d 1339.
Another commentator has noted:
[i]t is essential that the defense counsel interview as many of these individuals [i.e., doctors, ministers, co-workers, family members] as possible and question them about the extent of their knowledge of the defendant, specific encounters they can recall and their willingness to testify for the defendant during the penalty hearing. Each potential witness will need to understand the background of the case, the nature of the penalty proceedings, the importance of mitigating factors, and the relevancy of her testimony. Expert testimony may also be necessary to establish mitigating circumstances during the penalty phase.
Completing this type of preparation prior to the guilt phase of a capital trial would tax the time and resources of any practitioner ... Financial restrictions often compel attorneys to focus on the guilt phase initially with the hope that a good performance at that stage would obviate the need for a penalty phase. While it is essential that counsel maintain a consistent strategy throughout both phases of a capital trial, the qualitative difference in the evidence needed at either stage of the trial can make it difficult to complete preparation for both phases prior to the beginning of the guilt phase.
Abrams, A Capital Defendant’s Right to a Continuance Between the Two Phases of a Death Penalty Trial, 64 N.Y.U.L.Rev. 579, 599-600 (1989) (footnotes omitted) (emphasis added).
After gathering this information counsel must then prepare to present this evidence to the jury to demonstrate that he has human qualities both good and bad. Consequently,
‘Avoidance of the death penalty may rest largely on the jury’s perception of the character and personal history of the defendant. Thus, an important aspect of the right to present mitigating evidence lies in the defense’s ability to present the defendant to the jury in human terms.’
People v. Robbins, 45 Cal.3d 867, 892, 248 Cal.Rptr. 172, 187, 755 P.2d 355, 370 (1988), cert. denied Robbins v. California, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 981 (1989) (Musk, J., concurring) (quoting Sullivan, The Capital Defendant’s Right to Make a Personal Plea for Mercy, 15 N.M. L.Rev. 41, 60 [1985]).
It is this type of extensive pretrial investigation that is deemed critical and crucial in capital cases. As one judge, speaking on the essential nature of investigation, declared:
The lawyer ... has a substantial and very important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant himself. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships and the like will be relevant as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions.
Proffit v. Wainwright, 685 F.2d 1227, 1271 (11th Cir.1982) (Clark, J., concurring in part and dissenting in part); cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983) (emphasis in the original) quoting A.B.A. Project on Standard for Criminal Justice, Standard’s Relating to: The Prosecution Function and the Defense Function 277 (1970).
We have emphasized the paramount importance of investigation because this must be done before any pretrial motion is filed; before any brief in support of a pretrial motion is drafted; before selection of the jury; and before the trial itself. Moreover, many of these same motions are renewed after the guilt phase of the trial. Careful investigation takes time because there are so many things that counsel must search and scrutinize critically.
Now we turn to the case sub judice to see what the attorneys for Marion Albert Pruett did in representing their client.
B.
WORK HABITS OF PRUETT’S COUNSEL
Pruett was represented by two attorneys: Stephen Bright and Palmer Singleton. Bright documented 449.5 hours work on Pruett’s case, while Singleton documented 482.5 hours. This is not Pruett’s first time before this Court. This Court originally affirmed his conviction for capital murder and sentence of death. Pruett v. State, 431 So.2d 1101 (Miss.1983), cert. denied 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). This Court denied him leave to file a petition for writ of error coram nobis. Pruett v. Thigpen, 444 So.2d 819 (Miss.1984). After extensive appeals the Federal District Court for the Southern District of Mississippi subsequently granted habeas corpus relief. Pruett v. Thigpen, 665 F.Supp. 1254 (S.D.Miss.1986), aff’d, 805 F.2d 1032 (5th Cir.), cert. denied, 481 U.S. 1033, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987).
Mississippi was not the only state that had an interest in Pruett’s prosecution for various crimes. He faced a pending death sentence in Arkansas, two capital murder convictions in Colorado, another murder conviction in Mexico, and a plethora of other priors from all across the country. As was their obligation, Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), Pruett’s counsel investigated each with a view to excluding them from the retrial.
Prior to the retrial of the case, appointed counsel also undertook substantial appellate litigation on Pruett’s behalf. Among this litigation included two interlocutory appeals accepted by this Court. In one of these appeals, counsel alleged before this Court that the state had delayed more than the 120 days permitted by the federal district court for retrial. In a written opinion, this Court denied Pruett’s petition to bar his retrial. Pruett v. State, 512 So.2d 689 (Miss.1987). This was not a frivolous matter. Id. at 693 (Robertson, J., dissenting, joined by Prather and Sullivan, JJ.) Counsel also appeared in defense of the trial court’s order closing pretrial proceedings, which this Court affirmed unanimously. See, Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163 (Miss.1987). Counsel also brought other matters to this Court for decision. These included applications for review of the trial court’s denial of his double jeopardy motion, his motion to re-cuse the trial judge and his motion to disqualify the district attorney.
We must remember that the above proceedings included the appellate aspect of the trial. As with all capital litigation, numerous pretrial motions were heard. In particular, over 100 motions were filed and litigated in the pretrial proceedings. Each one of these pretrial motions required investigation, research and writing far beyond that required in the average criminal case. For example, this case presented the question of the admissibility of testimony of witnesses who had been hypnotized; review of videotapes and FBI documents and extensive consultation with experts.
Pruett’s investigation and pretrial motions also involved the admissibility of as many as twelve statements to law enforcement officers and the media. Counsel obviously challenged these statements on varied legal grounds. The record reflects that counsel required extensive preparation in various fields of expertise, including hypnotism, pathology, psychiatry and psychology-
While preparing for trial, counsel also conducted a thorough investigation to find witnesses in Pruett’s favor. Because Pruett is not a native Mississippian, his counsel were required to go to other states to investigate his history and background. Of course, their investigation was to assist in both the guilt and penalty phases of the trial.
The actual trial from voir dire through the verdict consumed over four weeks. The selection of the jury itself lasted eleven days. Pre-trial hearings lasted over nine days. As a matter of fact, each attorney spent almost 200 hours in the courtroom. Just for court time, the attorneys were paid slightly more than $5 per hour. This handsome rate decreases substantially when time for trial preparation is factored in.
Pruett’s counsel paid the price, unlike anyone else involved in this case. For example the trial court authorized payment of up to $5,000 for investigative services in the case. For 5½ hours’ work, one investigator was paid $275 or $50 per hour. A second investigator received $2,610, more than both attorneys involved, for time expended on the case. To emphasize the point further, the defense mental health experts were paid $2,545 and $3,154 respectively. The defense pathologist was paid $2,875 and Pruett’s hypnosis expert was paid $3,250. A far more startling fact is that the court reporter was paid far more than defense counsel. See, Brief of Appellant at 6, n. 10; see also MISS.CODE ANN. § 25-7-65 (Supp.1990) (jurors are to be paid not less than fifteen dollars and no more than forty dollars per day).
Counsel for Pruett are not alone. Other members of the Mississippi bar who participate in capital proceedings are rewarded with imminent financial ruin. In Mississippi, for example, a lawyer paid $25.36 per hour on overhead in 1988. See, 35 Mississippi Lawyer, No. 5, at 45 (March-April, 1989). Therefore, counsel may well have lost over $23 for every hour worked on the case.
This has impacted adversely upon the legal profession in this state. Because of the extreme financial hardship that capital proceedings bring with it, 82% of trial counsel who have represented indigent defendants in a capital murder case would either not accept another appointed case, or would be very reluctant to do so. For the trial judges of this state, this renders the difficult task of persuading competent counsel to take capital eases virtually impossible. As explained by the trial judge in this very case:
An experienced attorney cannot adequately represent a defendant in a capital murder case. There are a limited number of lawyers with sufficient legal experience and criminal practice experience to adequately represent defendants in capital murder cases. In the Seventh Judicial District, this pool of attorneys has been exhausted for appointments to defend capital murder cases. * * * Because of the economic consequences to these lawyers caused by the $1,000.00 statutory fee limitation, I cannot repeatedly appoint these lawyers to defend capital murder cases. Because of the statutory fee limitation, therefore, there is a crisis in obtaining the appointment of adequate and competent counsel to represent indigent defendants in capital murder cases in this Circuit Court district.
See, Wilson v. State, 574 So.2d 1338, Vol. —, T. 55-6 (Affidavit of William F. Coleman at 11113, 5) (emphasis added).
It is against this backdrop that Pruett and Wilson appeal to this Court asserting that the limitation of the attorney fees is unconstitutional. The appellants suggest that we should rule that § 99-15-17, which requires a one thousand dollar limitation for counsel involved in capital cases, violates the state and federal constitutions when applied to a complex capital trial. They each give several theories to support this position.
In the end, we recognize the attorneys’ responsibility to provide services to indigent criminal defendants. We, however, also recognize that the limitations outlined in § 99-15-17 are grossly inadequate and unreasonable. Therefore, trial courts must use their inherent powers to assure that counsel are appropriately compensated. Just as Judge Coleman asserts, the limitation has created a crisis that we must remedy. Before we address any issue, we reiterate that the Mississippi Constitution provides the sole adequate and independent state grounds for us to reach this conclusion.
II.
THE LIMITATION VIOLATES THE DOCTRINE OF SEPARATION OF POWERS.
Unlike the federal constitution, the state constitution specifically incorporates the doctrine of separation of powers:
Section 1. The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
Section 2. No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others....
Miss.Const. Art. 1 §§ 1, 2 (1890).
The doctrine of separation of powers as expressed in the 1890 Constitution cannot be overemphasized. See, Alexander v. State, by and through Allain, 441 So.2d 1329, 1335 (Miss.1983); see also, Dye v. State, ex rel. Hale, 507 So.2d 332, 342-3, n. 17 (Miss.1987). At the heart of this doctrine is that no officer of one department of government may exercise power at the core of the power constitutionally committed to one of the other departments. Hall v. State, 539 So.2d 1338, 1345 (Miss.1989). Stated another way, since “the whole of the legislative power has been vested in the legislature ... [and] the whole of the executive has been vested in a separate and distinct [executive] department of our government,” then the remaining branch, the judiciary, must remain independent and cannot be curtailed by any of the other two branches. Alexander, 441 So.2d at 1339.
Since Newell v. State, 308 So.2d 71, 76 (Miss.1975), this Court has expressed time and time again its inherent power to make rules that affect the Court. See, e.g., In re Mississippi Judicial Information System, 533 So.2d 1110 (Miss.1988) (establishing judicial information system); Southern Farm Bureau Casualty Ins. Co. v. Holland, 469 So.2d 55, 62 (Miss.1984) (Anderson, J., specially concurring, joined by Prather, Robertson and Sullivan, JJ.,) City of Mound Bayou v. Ray Collins Construction Co., 457 So.2d 337, 342 (Miss.1984) (Supreme Court rule supersedes statute); Glenn v. Herring, 415 So.2d 695, 696 (Miss.1982) (statute requiring disposition of cases by judges within six months unconstitutional); Jackson v. State, 337 So.2d 1242, 1253 (Miss.1976) (since death penalty statute was unconstitutional, Court promulgated guidelines for bifurcated trial in capital cases); See also, State v. Caldwell, 492 So.2d 575, 576 (Miss.1986), judgment vacated, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987) (court has “inherent power to procedurally control its business.”); Riely v. State, 562 So.2d 1206, 1211 (Miss.1990) (statute is constitutional on its face as construed and complemented by this opinion). Moreover, this Court has adopted the principle that even if a law or procedure is efficient, convenient and useful in facilitating functions of government it cannot be spared when it is contrary to the constitution. Alexander, 441 So.2d at 1339 (quoting INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 2780-81, 77 L.Ed.2d 317, 340 (1983)).
A.
SUPREME COURT MAY MAKE THE RULES BUT WHAT ABOUT ' THE MONEY?
As a corollary of the duty to promulgate rules governing practice in the courts, this Court has the “duty to protect itself, the judiciary and the citizens of this State * * * [and] it is the duty of this Court to assure such financing so its agencies can properly and meaningfully discharge the ‘jurisdiction and lawful powers as are necessary to conduct a proper and speedy disposition of any complaint’ ...” In the Matter of the Mississippi State Bar, 361 So.2d 503, 506 (Miss.1978) (citation omitted) (emphasis added). Accord Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 52, 274 A.2d 193, 197, cert. denied, 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971) (courts “must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities and its power and duties to administer Justice”).
We have reasserted our authority to guarantee adequate financing for the judiciary. In Hosford v. State, 525 So.2d 789, 797-8 (Miss.1988), this Court, speaking through Presiding Justice Hawkins, had this to say concerning responsibilities of the legislature and judiciary in adequately financing the courts:
The same Constitutional requirement for our courts to exist obviously carries with it the duty on the part of the Legislative branch to provide sufficient funds and facilities for them to operate independently and effectively. Any holding otherwise would emasculate the constitutional mandate for three separate and co-equal branches of government by reducing the courts to supplicants only of the Legislature.
Of course, courts very largely are supplicants of the Legislative branch, with that branch providing the funds and facilities for courts to operate. And, it is not what judges individually or collectively think they should receive which controls, but what the legislature in its wisdom decides. The discretionary authority of the legislature is wide indeed, but it does not cover quite all of the spectrum. If it fails to fulfill a constitutional obligation to enable the judicial branch to operate independently and effectively, then it has violated its Constitutional mandate, and the judicial branch has the authority as well as the duty to see that courts do not atrophy. No court created by the Constitution is required to accept conditions which prevent it from operating independently and effectively. Such court also has the duty under our governmental system to protect its own integrity. It likewise has the inherent authority as part of a separate and co-equal branch to make such orders to insure that independence and integrity....
••• [I]f [the Legislature]fails in its constitutional mandate to furnish the absolute essentials required for the operation of an independent and effective court, then no court affected thereby should fail to act. It is the absolute duty of a court in such latter circumstances to act, and act promptly.
* * * [TJhere is no fourth branch of government to turn to for protection and the judiciary can protect itself,
(emphasis added).
Since the court can order renovation of the courthouse, the physical structure where the judiciary determines the fate of criminal defendants, we also must have some say in determining the method or factors involved in guaranteeing adequate payment to the attorneys who represent those criminal defendants. Our authority is reinforced because the courts are under a constitutional obligation to provide the accused in a felony case with counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See also, MISS.CODE ANN. § 99-15-15; Unif.Crim. R.Cir.Ct.Prac. 1.05; Cf. In the Matter of the Court Reorganization Plan of Hudson County, 161 N.J.Super. 483, 391 A.2d 1255, 1259 (1978), aff'd 78 N.J. 498, 396 A.2d 1144 (1979) (a court has the inherent power to provide the facilities, personnel and resources reasonably necessary for the performance of the judicial functions in the county. “And as a corollary thereof [a judge] must have the power to compel the appropriation and expenditure of funds by the coequal executive and legislative branches of government to accomplish such purpose, subject only to the bounds of reasonable discretion”) (citations omitted); see also, State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80, 82 (1981) (courts possess inherent powers to effectuate an orderly and efficient administration of justice without being financially or pro-eedurally inhibited by the General Assembly); Pena v. District Court of Second Judicial District, 681 P.2d 953, 956 (Colo.1984) (the general rule is that the judicial branch of government possesses the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities); Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir.1978) (“Among the courts’ administrative type functions is the appointment of attorneys in criminal cases”); Washington v. Estelle, 648 F.2d 276, 281 (5th Cir.1981), cert. denied 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981) (same).
Based on the foregoing, it is clear that it is the court’s perogative, not the legislature’s, to fulfill that function. We, however, are mindful of Young v. State, 255 So.2d 318, 321 (Miss.1971). In that case, this Court held that the matter of compensation for an attorney appointed to defend an accused in a criminal matter is a legislative matter rather than a judicial matter. In discussing that central concern this Court held:
the amount of compensation provided of counsel for the appellant was not so low that it was tantamount to denying appellant due process, and we reaffirm our previous holding that the matter of compensation of an attorney appointed to represent an indigent defendant is a matter that rests solely with the legislature as a legislative function.
255 So.2d at 322 (emphasis added); see also, Board of Supervisors of George County v. Bailey, 236 So.2d 420 (Miss.1970).
Before arriving at that conclusion, however, the Court said:
[Representation of indigents under a court order, without a fee except as modified by statute, is a condition which lawyers are licensed to practice in the State of Mississippi as officers of the court. Since the right to practice law is a privilege that is conferred by the State, attorneys can be required to make a reason able contribution of their time and services as an aid to the effective administration of justice.
Id. at 321 (emphasis added).
Our decisions in Newell, supra, 308 So.2d 71 and progeny virtually have nullified Young’s holding. In any event, were we to continue to subscribe to the language in Young, we would simply ask this question: Was compensation in the cases sub judice so low that it amounted to a denial of due process? In answering that question we have to answer the question in the affirmative. Therefore, the matter of compensation would not rest solely with the Legislature. Newell and its progeny notwithstanding, we would still have to reach a different conclusion than the one reached in Young.
We recognize our inherent power “to allow ... departure from the statute’s fee guidelines ...” White v. Board, 537 So.2d at 1378 (quoting Makemson, 491 So.2d at 115). It necessarily follows that the legislative body responsible for funding the courts may be “obliged to appropriate and thus provide sufficient funds ... to sustain the public advocacy system.... ” Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 762 (Ky.App.1984); Accord State v. Robinson, 123 N.H. 665, 465 A.2d 1214, 1217 (1983); Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55, 66 (1976); Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761, 765 (1975). See also People v. Randolph, 35 Ill.2d 24, 30, 219 N.E.2d 337, 340 (1966) (inherent power to appoint counsel “necessarily includes the power to enter an appropriate order ensuring that counsel do not suffer an intolerable sacrifice and burden.”); Smith v. State, 118 N.H. 764, 394 A.2d 834, 838-39 (1978) (“It is peculiarly within the judicial province to ascertain reasonable compensation when the person who performs the services is acting under court appointment as an officer of the court”); Bias v. State, 568 P.2d 1269, 1271-72 (Okla.1977) (inherent power to appoint counsel includes power to ensure counsel does not suffer an intolerable sacrifice; extraordinary professional time and expenses to be compensated); State v. Lehman, 137 Wis.2d 65, 403 N.W.2d 438, 447 (1987) (court’s inherent power to appoint counsel carries with it the power to order payment). But see, State v. Ruiz, 269 Ark. 331, 335, 602 S.W.2d 625, 627 (1980); Huskey v. State, 743 S.W.2d 609 (Tenn.1988).
The courts are constitutionally required to appoint counsel, and it is this Court’s function to establish all the procedures without “trespass” by the Legislature. Dye v. State Ex rel. Hale, 507 So.2d at 343. “There is no right more essential than the right to assistance of counsel.” Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978). And, because death is different, the statutory limitation as applied is an infringement upon this Court’s authority.
This Court must exercise its inherent authority. We take this route rather than declaring the statute unconstitutional. We, however, do believe the statute impinges upon several other fundamental rights; therefore, it is absolutely necessary that we use our inherent authority mandated by our Constitution. Hosford, 525 So.2d at 798. In addressing the following issues, we note that the clashes between the statute and the exercise of fundamental rights also have persuaded this Court to invoke its inherent obligation.
B.
THE LIMITATION IMPINGES UPON THE CONSCIENTIOUS ATTORNEY’S FIFTH AMENDMENT RIGHT TO PROPERTY
The Fifth Amendment to the U.S. Constitution forbids government expropriation of private possessions stating, “nor shall private property be taken for public use, without just compensation.” U.S. CONST. AMEND. V. Section 17 of the Mississippi Constitution 1890, on the other hand, provides that
private property shall not be taken or damaged for public use except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.
As a consequence of this language, in discussing the cases sub judice on this ground, we do so relying solely on our state constitution without reaching the federal question. Cf. DeLisio v. Alaska Superior Court, 740 P.2d 437, 439 n. 3 (Alaska 1987) (Alaska’s constitution affords property owner broader Fifth Amendment protection than the Federal Constitution; therefore, no need to consider federal claim).
Under the federal constitution, “the right to practice law has been held to be a property right within the meaning of the due process and equal protection provisions of the Fourteenth Amendment....” Weiner v. Fulton County, 113 Ga.App. 343, 148 S.E.2d 143, 145, cert. denied 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304 (1966) (citing Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957)). As a matter of federal law, “[f]rom this it follows that an attorney from whom services are demanded and by whom they are given has a property right in his fee for those services which ... should be based on their just and reasonable value.” Weiner, 148 S.E.2d at 145; Bias v. State, 568 P.2d 1269, 1270 (Okla.1977); Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d 193, 195 (1968); Warner v. Commonwealth, 400 S.W.2d 209, 211 (Ky.1966), cert. denied 385 U.S. 858, 87 S.Ct. 108, 17 L.Ed.2d 85 (1966); State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976); Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405, 408 (1940). But Cf. DeLisio, 740 P.2d at 443 (measure of value will not necessarily reflect any specific attorney’s normal rate of compensation, but rather will reflect the compensation received by the average competent attorney operating on the open market); Makemson, 491 So.2d at 1113 (Petitioners seek only “reasonable” and not “market value” compensation. Token compensation is no longer an alternative.) (emphasis added).
Although this Court has not explicitly stated so, we have recognized for a long time that lawyering, as well as other vocations, is a fundamental right for
[ljiberty, in its broad sense, must consist of the right to follow any of the ordinary callings of life without being trammeled ... The right to follow any of the common occupations of life is an inalienable right.... It was formulated as such under the phrase ‘pursuit of happiness’ in the [Declaration of [Independence ... This right is a large ingredient in the civil liberty of the citizen.
Wilby v. State, 93 Miss. 767, 772-73, 47 So. 465, 466-67 (1908) (quoting State v. Smith, 42 Wash. 237, 84 P. 851, 854 (1906)); see also Moore v. Grillis, 205 Miss. 865, 39 So.2d 505, 511 (1949).
By virtue of this language, it is obvious that the attorneys’ work must be property. Therefore, if an attorney is “compelled to part with his property for public use, [it is] only on full payment for it and any right in relation to it.” Sarphie v. Mississippi State Highway Commission, 275 So.2d 381, 383 (Miss.1973) (emphasis in the original). Cf. Delisio, 740 P.2d at 439 (the intent of the Alaskan “takings clause” is “to ensure that individuals are not unfairly burdened by disproportionately bearing the cost of projects intended to benefit the general public”).
We, however, remain mindful of our decision in Young, 255 So.2d at 321, which addressed this takings issue and followed the position that the Alaskan Supreme Court announced in Jackson v. State, 413 P.2d 488 (1966). Aside from the fact that we have impliedly overruled the dicta in Young, supra, the Alaskan Supreme Court has taken the additional step and expressly overruled Jackson. See, DeLisio, 740 P.2d at 439. In Young, this Court noted that an attorney, as an officer of the court, is obligated to provide services for indigents without payment. The Court indicated that this principle “is so firmly established in the history of the courts and the legal profession that it may be said to be a condition under which lawyers are licensed to practice as officers of the court.” 255 So.2d at 321 quoting Jackson, 413 P.2d at 490.
While reflecting on that same language, the DeLisio Court held that “[w]e are how convinced that the attorney may not be denied reasonable compensation on the basis of this tradition.” 740 P.2d at 441. Today, we likewise see no reason why tradition alone should prohibit an attorney from receiving reasonable compensation for services rendered to the public.
While further addressing this takings issue in Young, the only other case that this Court principally relied on was United States v. Dillon. Quoting from Dillon, this Court stated:
Appellant’s brief contains a very complete and scholarly treatise which in our view establishes an obligation on the part of the legal profession to represent indigents upon court order, without compensation ... [T]he obligation of the legal profession to serve indigents on court order is an ancient and established tradition, and that appointed counsel have generally been compensated, if at all, only by statutory fees which would be inadequate under just compensation, and which are usually payable only in a limited types of cases ... [T]he vast majority of the courts which have passed on the question have denied claims of appointed counsel for nonstatutory just compensation, pointing out that representation of indigents under court order, without a fee, is a condition under which lawyers are licensed to practice as officers of the court, and that the obligation of the legal profession to serve without compensation has been modified only by statute. An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’
255 So.2d at 320-21 quoting Dillon, 346 F.2d 633, 635, cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966) (citations omitted).
As noted in Jewell, however, “the historical argument advanced in Dillon was decimated in a law review article by Professor David Shapiro, The Enigma of the Lawyers’ Duty to Serve, 55 N.Y.U.L.Rev. 735, 740-53 (1980).” 383 S.E.2d at 543 (emphasis added). Accord. Stephan v. Smith, 747 P.2d at 841 (The later cases reflect a definite trend toward recognizing that the historical condition which the duty to provide free legal services evolved no longer exists in modern America); DeLisio, 740 P.2d 437, 441 (“[cjompulsory representation of indigent defendants without full compensation ... is neither as traditional nor as venerable as had been previously supposed. More importantly ... tradition alone, regardless of this venerability, cannot validate an otherwise unconstitutional practice”). Another court has explained it this way:
An attorney who is appointed to represent an indigent without compensation is effectively to give away a portion of his property — his livelihood, other professionals, merchants, artisans, and state licensees, are not similarly required to donate services and goods to the poor.
The lawyer’s stock in trade is intangible — his time fortified by his intellectual and personal qualities, and burdened by his office expenses. To take his stock in trade is like stripping the shelves of the grocer or taking over a subdivision of the builder.
Cunningham, 177 Cal.App.3d at 348-49, 222 Cal.Rptr. at 862 (quoting Cheatham, Availability of Legal Services: The Responsibility of the Individual and of the Organized Bar, 12 U.C.L.A.L.Rev. 438, 444 (1965); see also, Comment, The Uncompensated Appointed Counsel System: A Constitutional and Social Transgression, 60 Ky.L.J. 710, 715 (1972); see also Lynch, 796 P.2d at 1156-57. Cf. Family Division Trial Lawyers v. Moultrie, 725 F.2d 695 (D.C.Cir.1984) (attorneys’ pro bono requirements do not constitute a taking; however, an unreasonable amount of required uncompensated service might so qualify. Moreover, at some point the burden on a particular attorney could become so excessive that it might rise to the level of a taking of property).
In light of these fundamental principles, it is obvious and we so hold that just compensation was not paid to Messrs. Bright, Singleton, Horn and Powell, and others like them. In a different context we have determined that “[vjalue ... refers to the familiar appraisal and economic concept of fair market value.” Trustees of Wade Baptist v. Mississippi State Highway Commission, 469 So.2d 1240, 1244 (Miss.1985); see also Mississippi State Highway Commission v. Owen, 808 So.2d 228, 230 (Miss.1975) {[value equals] difference between fair market value before and after taking); Mississippi State Highway Commission v. McArn, 246 So.2d 512, 514 (Miss.1971).
The money counsel received in the cases sub judice amounted to no more than token compensation, and it simply was confiscatory of their time, energy and talent. Makemson, 491 So.2d at 1115. The effect of the statutory limitation has impinged upon counsel’s services, their property. See, Morris, Constitutional Law: Validity of Attorney Fee Caps in Indigent Cases: Mississippi’s Challenge, 9 M.C.L.Rev. 373, 390 (1989). So that other counsel will not be compelled to sacrifice as counsel in these cases, we do establish appropriate guidelines. Before detailing these guidelines, however, we must discuss other concerns which require that we act.
C.
THE LIMITATION IMPINGES UPON THE INDIGENT DEFENDANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
Each state has a constitutional obligation to provide indigent defendants in all felony cases with assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right has been interpreted to mean the right to effective assistance of counsel for the state has a compelling interest to ensure “that the defendant at the trial [is] given a realistic and meaningful opportunity to assert and enjoy all rights secured to him by the Constitution and laws.” Read v. State, 430 So.2d 832, 837, 841 (Miss.1983). Cf. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (“Both stages of the prosecution, [trial and appeal], although perhaps involving unique legal skills, require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over.”); see also, Waldrop v. State, 506 So.2d 273, 275 (Miss.1987); accord Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The state’s interest is even more compelling in capital cases. See, supra, 1344-1346. According to Pruett, “[t]he failure to provide adequate funding for court-appointed counsel tends inevitably to curtail this most fundamental right.” (Brief of Appellant at 22).
Although the issue in this case remains the same — the right to effective assistance of counsel — the analysis of the constitutional claim in the case sub judice differs considerably from the usual post-conviction ineffectiveness challenge. When an appellate court reviews counsel’s performance in a post-conviction proceeding, the strong judicial interest in finality precludes the court from acting the Monday morning quarterback.
Under the Strickland standard, “[j]udi-cial scrutiny of counsel’s performance must be highly deferential.” 466 U.S. at 689, 104 S.Ct. at 2065. Accord. Evans v. State, 485 So.2d 276, 281 (Miss.1986). Moreover, requiring intensive scrutiny of counsel during post trial performance would adversely affect his performance and even his willingness to serve. Stated another way, “rigid requirements for acceptable assistance [made after trial] could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between the attorney and client.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Simply put, when retrospectively reviewing counsel’s performance, the court’s purpose “is not to improve the quality of legal representation although that is a goal of considerable importance to the legal system.” Id. at 689, 104 S.Ct. at 2065 (emphasis added). But, it is crucial that the “defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Id. at 692, 104 S.Ct. at 2067.
On the other hand, when this Court acts in its role of supervising the judiciary, very different concerns control the evaluation under the Sixth Amendment and Section 26. Cf. BRIEF OF APPELLEE in Wilson v. State, at 48-9 (State’s most demanding and far reaching responsibility in criminal law is to protect the innocent, to prosecute and punish the guilty, and in all cases to see that justice is done in accord with constitutional imperative). Now, there is no issue of finality — except insofar as better legal representation would better assure finality in capital cases. Cf. State v. Tokman, 564 So.2d 1339 (Miss.1990) (counsel found ineffective); Leatherwood v. State, 539 So.2d 1378 (Miss.1989) (same); Jones v. Thigpen, 788 F.2d 1101 (5th Cir.1986). Furthermore, the financial disincentives in the current system for appointing counsel act to discourage the acceptance of assigned cases, dampen the ardor of counsel, and reduce the quality of legal representation. Cf. Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir.1988) (“[S]ixth [A]mendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the [Strickland] ‘ineffectiveness’ standard may nonetheless violate a defendant’s rights under the [S]ixth [Amendment”).
For this reason, in order to show a constitutional violation in the system as applied, it is not necessary that it be shown that all defendants who are represented by inadequately funded attorneys, were provided with assistance below the minimum standards set forth in Strickland. This Court finds that the statutory scheme adversely affects the right to counsel without finding that counsel’s performance in this case fell below the minimum standards. It is important to note as one court held:
even though the record in this particular case does not indicate that the defendant was inadequately represented[, t]he fact that one felony defendant out of 149 felony defendants was given minimum adequate representation does not mean that others were properly represented.
State v. Smith, 140 Ariz. 355, 681 P.2d 1374, 1381 (1984). Because these are capital cases, this Court ensures that all defendants in capital cases are effectively represented.
The evidence provided in this case suggests that the current statutory scheme encourages the appointment of less qualified lawyers to capital cases. As Judge William F. Coleman notes in his affidavit:
An inexperienced attorney cannot adequate [sic] represent a defendant in a capital murder case. There are a limited number of lawyers with sufficient legal experience and criminal practice experience to adequately represent defendants in capital murder cases. In the Seventh Judicial District, this pool of attorneys had been exhausted for appointments to defendant capital murder cases.
* * * * * *
Criminal defense lawyers are solo practitioners or from small law firms. Because of the economic consequences to these lawyers caused by the $1,000.00 statutory limitation, I cannot repeatedly appoint these lawyers to defend capital murder cases. Because of the statutory fee limitation, therefore, there is a crisis in obtaining the appointment of adequate and competent counsel to represent indigent defendants in capital murder cases in this Circuit Court district.
Affidavit of William F. Coleman (Wilson Record at 55-6) (emphasis added). The financial trauma which results from taking a capital case is effectively eliminating most experienced attorneys from ever taking another case.
Undoubtedly the statutory limitation on fees has created this predicament that Judge Coleman and other circuit judges face. We cannot deny that “[i]n our pecuniary culture the caliber of personal services rendered usually has a corresponding relationship to the compensation provided.” Makemson, 491 So.2d at 1114-115 (quoting MacKenzie v. Hillsborough County, 288 So.2d 200, 202 (Fla.1973) (dissenting, opinion)).
The one thousand dollar limitation acts as an obvious disincentive to the lawyers involved. For every additional hour’s work, the hourly fee decreases, until it finally slips below the minimum wage. Cf. Jewell, 383 S.E.2d at 544 (“[I]t is unrealistic to expect all appointed counsel with office bills to pay and families to support to remain insulated from the economic reality of losing money each hour they work.”); Cunningham, 177 Cal.App.3d at 355, 222 Cal.Rptr. at 866 (“The more conscientiously the attorney fights for the indigent’s cause, the greater chance of the attorney’s financial loss.”); see also, Stephan v. Smith, 747 P.2d at 835 (A lawyer has a right to make a living). While conscientious lawyers might take one capital case every few years, as a quasi-pro bono commitment, financial pressures militate against lawyers regularly taking cases, thereby building specialized knowledge in this most complex legal field.
A defendant’s right to effective representation and the attorneys right to fair compensation is “inextricably interlinked.” Makemson, 491 So.2d at 1112. This point has been emphasized on numerous occasions. See, e.g. Ferri v. Ackerman, 444 U.S. 193, 199, 100 S.Ct. 402, 406-07, 62 L.Ed.2d 355 (1979) (Congress established reasonable compensation for lawyers in the Criminal Justice Act of 1964 “[i]n response to evidence that unpaid appointed counsel were sometimes less diligent or less thorough than retained counsel ... ”) (footnote omitted); Strickland v. Washington, 466 U.S. at 708, 104 S.Ct. at 2075 (Marshall, J., dissenting) (“It is an unfortunate but undeniable fact that a person of means ... usually can obtain better representation than that available to an indigent defendant ... ”); see also, White v. Commissioners of Pinellas County, 537 So.2d 1376, 1380 (“[Relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored”); Cunningham, 177 Cal.App.3d at 355, 222 Cal.Rptr. 866 (“it may be unrealistic to expect the satisfaction which arises from performing a charitable act [ie., free services to the indigent] to constitute the sole motivation to expend maximum effort.”); Jewell, 383 S.E.2d at 540 (“[L]ow hourly fee may prompt an appointed lawyer to advise a client to plead guilty, although the same lawyer would advise a paying client in a similar case to demand a trial.”); Cf. McLaughlin v. Royster, 346 F.Supp. 297, 300 (E.D.Va.1972) (Attorney admitted that had he “been employed and paid to represent [defendant] he would have proceeded in the case differently ... [and] interviewed more people”); In the Matter of Dale, 37 N.C.App. 680, 681, 247 S.E.2d 246, 248 (1978) (Attorney failed to file an appeal for indigent client sentenced to death because “I didn’t have a savings account or any funds in the bank that I could live on. It was just a matter of me having to live and placing my priority on living instead of doing what I should have been doing ...”); In the Matter of Hunoval, 294 N.C. 740, 741, 247 S.E.2d 230, 231 (1977) (Attorney who represented indigent defendant at trial in a capital case, later won a stay of execution, but he never filed a petition for certiorari and supporting brief to the United States Supreme Court because he was dissatisfied with the fee allowed in prosecuting the appeal, and “[he] [could] not justify working for nothing or at a rate less than that received by a garage mechanic.”).
Even if we were to deny relief on the other propositions presented thus far, this point — that the statutory cap curbs criminal defendants’ right to effective assistance of counsel can not be refuted. As Makemson pointed out:
... [W]e find that the statutory maximum fees, as inflexibly imposed in cases involving unusual or extraordinary circumstances, interfere with the defendant’s [S]ixth [Ajmendment right ‘to counsel for his defence.’ The statute, as applied to many of today’s cases, provides for only token compensation. The availability of effective counsel is therefore called into question in those cases when it is needed most.
491 So.2d at 1112 (emphasis added).
Consequently, Mississippi’s inflexible statutory limitation frustrates indigent defendants’ rights to effective assistance of Counsel. This is particularly so in capital trials, which consist of two separate trails. Moreover, the fee has the affect of encouraging counsel to perform deficiently. Because our system has created these deficiencies, we must act or we would fail in upholding our Constitutional mandate.
D.
THE LIMITATION ACTS IN VIOLATION OF THE EQUAL PROTECTION CLAUSE
In laying the foundation for this proposition, Pruett argues “[s]ince the right to assistance of counsel is constitutionally guaranteed, it is clearly a fundamental interest. Thus the indigent defendant’s claim that the state action (providing uncompensated counsel) impinges upon that fundamental right should be subject to intensive judicial scrutiny under traditional equal protection analysis.” (BRIEF OF APPELLANT at 26) quoting Note, Uncompensated Appointments of Attorneys for Indigent Criminal Defense: The Need for Supreme Court Standards, 14 S.W.U. L.Rev. 389, 403 (1984) (footnote omitted).
As to the indigent defendant, “[tjhere can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). As a matter of fact, “all people charged with [a] crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’ ” Id. at 17, 76 S.Ct. at 590. The appellants assert that when court-appointed counsel is so woefully underpaid this equality does not exist.
Pruett and Wilson also raise a secondary argument in support of this contention. They explain that § 99-15-17 also implicates counsel’s fundamental right to property and for this reason it also “enter[s] the realm of strict judicial scrutiny, [where] there can be no doubt that ‘administrative convenience is not a shibboleth, the mere recitation of which dictate constitutionality.’ ” City of Richmond v. Croson, Co., 488 U.S. 469, 509, 109 S.Ct. 706, 729, 102 L.Ed.2d 854, 891 (1989) (quoting Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973).
When an attorney engages in his profession (ie., criminal defense) he is “exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest is unconstitutional.” Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969) (emphasis in original). Obviously, the state has a strong interest in providing legal services to the poor, but it is neither necessary, nor permissible, for the cost of this program to be shouldered by a small group of lawyers without offending the equal protection clause. As the court in Lynch noted, a lawyer’s calling is different from other licensed professionals. 796 P.2d at 1157. But, this, in no way, should allow the public to shirk the responsibility of providing right to counsel to the indigent. That responsibility can not be borne entirely by the private bar. Stephan v. Smith, 747 P.2d at 841. “While ... attorneys are not required to serve indigent defendants without compensation, the effect is similar if their overhead and out-of-pocket expenses are not covered by the compensation they receive.” Id. at 844. There is no way the meager compensation allowed by the statute could cover the overhead or out of pocket expenses of counsel involved in these cases.
In addition to Stephan v. Smith, supra, and Cunningham, supra, other courts have found the application of stringent fee limitations similar to ours as a violation of the equal protection clause. See, e.g., Lynch, supra, 796 P.2d 1150; In the Interest of D.B., 385 So.2d 83, 92 (Fla.1980); State v. Rush, 46 N.J. 399, 412-13, 217 A.2d 441 (1966); see also Menin v. Menin, 79 Misc.2d 285, 359 N.Y.S.2d 721 (1974) (due process clause). We agree with the appellants in these causes. Our statute binds attorneys to perform a gargantuan task, and it also forces them to shoulder entirely the public’s burden of financing our indigent defense system. Accord BRIEF OF APPELLEE in Wilson at 48 (The burden of defending capital litigation has been placed on the private bar in Mississippi “even where a public defender may have been provided for indigent defense generally”).
Because the appellants in these cases have provided in detail numerous reasons which justify this Court to act on this critical matter, we now put forth a remedy.
III.
WHAT ARE ATTORNEYS TO BE PAID ?
We have noted our obligation to assure that indigent criminal defendants have counsel appointed to them. We also have indicated that lawyers must be paid for their services, and we cannot expect counsel to be effective advocates without adequate and reasonable compensation. The token compensation allowed by our statute simply is not enough to allow courts to uphold their constitutional mandate.
In devising a scheme that adequately compensates court appointed counsel, we first note that the Legislature has been put on notice that a problem exists with our indigent criminal defense system. In 1980, the Mississippi Judicial Council sponsored a report critical of our system of assigned counsel. The report recommended that Mississippi adopt a more efficient public defender system and standardize compensation for auxilary assigned counsel “based on prevailing rates for private counsel.” See, Brief of Amicus Curiae Mississippi State Bar Association, citing Mississippi Courts: Organization and Management Analysis, in. V Mississippi Court Finance Study 71-108 (Ernest H. Short and Associates, Inc. March 1980). Following the release of this study, the Legislature refused to authorize a requested interim study commission to review the extensive finding of the Judicial Council. See, Lefstein, Criminal Defense Services for the Poor, 58, A-50 (1982). Since that time, however, the Legislature established the limits effective in § 99-15-17. These limits have been in place since 1980, and they have remained until today.
As the Attorney General recognized in his brief, the possibility that the statute would remain in tact as is exists because “most recently ... Senate Bill 2264 and House Bills 582 and 628, all of which sought in one form or another to increase compensation for appointed counsel including compensation for defense of captial litigation, died in committee in the 1989 legislative session.” BRIEF OF APPELLEE at 48, n. 33. We, therefore, take this opportunity, as we are sworn to do, to establish guidelines which give equal justice to the poor and the rich.
Before doing so, however, we first reject the state’s proposal to place a statutory cap of $25 an hour for counsel representing an indigent criminal defendant during capital litigation. Not only would the state place a cap on the hourly rate, but it also recommends that those attorneys could only be paid for no more than two hundred hours. This in essence allows for a maximum of $5,000.
Arbitrarily limiting the number of hours that an attorney can work (and be paid for) in representing criminal defendants raises grave constitutional concerns. See, supra, at 1355-1358. We already have emphasized the nature of criminal proceedings in general and capital litigation in particular. Were we to subscribe to this proposal, counsel for Pruett would go uncompensated for a total of 532 hours, and Wilson’s counsel would not be compensated for 541.2 hours. Because of our serious role in this type of litigation, we can not put a limitation on the number of hours that an attorney can be paid for in in representing an indigent defendant defendant, who is facing incarceration or death.
■ In suggesting that there be a $25 hour cap for counsel representing indigent criminal defendants, the state calculates this hourly wage by equating defense counsel’s rate to that of a district attorney. MISS. CODE ANN. § 25-3-32 sets the district attorney’s salary at 90% of the circuit judge’s salary. Therefore, his salary is $59,580.00 and based on a 40-hour work week the district attorney earns $28.64 per hour. An Assistant District Attorney’s salary ranges from $15,000 to 85% of the salary of the district attorney. Consequently, the highest paid assistant district attorney would make $50,643.00. Based on these figures assistant district attorneys make between $7.21 and $24.35 per hour. See, MISS.CODE ANN. § 25-31-5(4) (Supp.1990).
Although this rate proposed by the state is slightly less than the district attorney, the fact that the state offers to establish counsel’s hourly rate by tying it to the hourly rate of the district attorney is not an unreasonable approach. Cf. Lynch, 796 P.2d at 1161 (“most even handed approach in setting fees is to tie the hourly rate of the counsel appointed for the indigent defendant to the hourly rate of the prosecutor/ district attorney and the public defenders”). As a matter of fact, the appellants concur that the approach could be the appropriate remedy.
The state’s hourly rate for the district attorney, however, does not include the office’s overhead and litigation expense which the state provides. Stated another way, a district attorney's salary is pure profit to him because he has to pay no expenses from it. This includes the salary of her assistants and any investigator or other investigating officers who assist in investigation the case.
A lawyer in practice must pay his overhead and other expenses from the fees that he earns. Therefore, “[i]n order to place the counsel for defense on an equal footing with counsel for the prosecution, provision must be made for compensation of defense counsel’s reasonable overhead and out of pocket expenses.” Lynch, 796 P.2d at 1161. According to Pruett, a Mississippi lawyer’s average office overhead is $25.36. Consequently, even at this amount that the state insists is reasonable would not cover counsel’s overhead expenses. Inevitably, the state’s remedy would still impinge upon those constitutional guarantees that we have considered. See, supra at 1355-1358. Furthermore, the $25 per hour rate proposed by the state is even less than the $26.12 hourly rate which the Florida Supreme Court characterized as “far from reasonable compensation” for an attorney who has “the dreadful responsibility of trying to save a man from [execution].” White v. Board of Commissioners, 537 So.2d at 1379.
In establishing a proper amount we note that the federal system recognizes the need for adequately compensated counsel for indigent criminal defendants. The Criminal Justice Act of 1964 provides for court appointed counsel to be paid $75 per hour for in court time; $40 for out-of-court time, and the $3,500 maximum may be waived “for extended or complex representation.” 18 U.S.C.A. § 3006A(d) (Supp.1990). The Anti-Drug Abuse Act of 1988 provides that in a post-conviction proceeding seeking to set aside a death sentence, the court is to appoint experienced attorney and pay “such rates or amounts as the court determines to be reasonably necessary.” 21 U.S.C.A. § 848(q)(10) (Supp.1990).
When we turn to our sister states, we find that Mississippi is radically out of step with most other jurisdictions. Of the thirty-seven states that continue to sponsor capital punishment, only Mississippi and Arkansas have a legislatively mandated $1,000 cap. Most states allow counsel to be paid at a reasonable rate, and they do not impose stringent limitations. See, e.g., ALA.CODE § 15-12-21 (Supp.1990) (No maximum for in-court time and $1,00 maximum for out of court time; counsel receives reimbursement for expenses incurred); ARIZ.REV.STAT.ANN. § 13-4013 (1989) (compensation equals amount that court finds reasonable); CAL.PENAL CODE § 987.2 (West 1985) (Supp.1990) (counsel receives reasonable compensation as determined by court); FLA.STAT.ANN. § 925.036 (West 1985) (Supp.1990) (Maximum of $3,500 but the court may waive this amount); GA.CODE ANN. § 17-12-61 (1990) (Maximum set at $150, but court can look to § 17-12-5(b) and find extraordinary circumstances and therefore increase the award). See also, IDAHO CODE § 19-860 (Supp.1990) (court awards reasonable rate of compensation, which is determined by complexity of the issues, time involved and other relevant considerations); MONT.CODE ANN. § 46-8-201 (Supp.1989) (compensated reasonable rate to be determined by the judge); NEB-REV. STAT. § 29-1804.12 (1989) (judge awards all expenses reasonably necessary to permit counsel to effectively and competently represent his or her client. County must pay the full amount determined by the court); NEV.REV.STAT. § 7.125 (1987) ($6,000 maximum but court can waive this amount based on the complexity of the case; number of factual or legal issues; severity of the offense; time necessary to provide adequate defense or other special circumstances); N.C.GEN.STAT. § 7A-452 (1989) (Trial court awards reasonable compensation to be paid by state) (emphasis added); S.D. CODIFIED LAWS ANN. § 23A-40-8, (1988) (reasonable and just compensation fixed by judge for services and for necessary expenses and costs incident thereto); TEX.CODE CRIM.PROC. ANN. § art. 26.05 (Vernon 1989) (reasonable attorney fees based on labor required, complexity of case and experience and ability of appointed counsel); VA.CODE ANN. § 19.2-163 (1990) (trial court has sole discretion to fix amounts which are reasonable and reflective of time and effort expended on case); and WYO.STAT. § 7-6-109 (1987) (court appointed attorney shall be compensated for services with regard to complexity of the issue, the time involved, prevailing local fees of attorneys; the amount reasonably necessary to provide a defense as is required by constitutional process and other relevant consideration as determined by the court).
Aside from the flexible standards provided by the various states and the federal government, the ABA believes that “[e]api-tal counsel should be compensated for actual time and service performed. The objective should be to provide a reasonable rate of hourly compensation which is commensurate with the provision of effective assistance of counsel and which reflects the extraordinary responsibilities inherent in death penalty litigation.” Guidelines in Death Penalty Cases, Guideline 10.1.
In crafting the proper remedy for court appointed counsel, we note that the state can expect attorneys to provide services to the public because they have the key to the courthouse when no one else does. The court is their gathering place where they conduct much of their business. And, this stage, provided at the public expense, is the place where attorneys put on their greatest performances.
Just because they have access to our courts, however, does not mean that we can require attorneys to conduct a grand performance at no charge and at the same time burden them with the state’s responsibility. The services that attorneys provide are part of their business. In our pecuniary culture we neither can not expect nor force attorneys to work at rates that are confiscatory of their time and talent.
Today we hold that attorneys must be paid reasonable compensation when representing an indigent criminal defendant. In any calculation of reasonable compensation, we emphasize that the calculation should factor in the cost of overhead expenses. Moreover, attorneys will have to be compensated for out-of-pocket expenses that are incurred during the course of his representation of the accused.
We are cognizant of what the federal courts provide for counsel in representing indigent criminal defendants, who have become a part of the federal system. In addition, we are also aware of the flexibility in providing reasonable fees allowed by many other jurisdictions. We can not require counties to pay court appointed counsel the fair market rate for their services because there is a pro bono factor. But see, DeLisio, 740 P.2d at 443. In the alternative, however, we agree with the State and we hold that counsel’s hourly rate must be tied to the hourly rate of the district attorney’s office. We also hold that there is no maximum number of hours that counsel can represent an accused. Because we know that assistant district attorneys are paid at an hourly rate that is less than the district attorney, we hold that counsel in death penalty cases must be paid at the rate that the district attorney earns.
Because of our constitutional obligation to see that rich and poor alike are represented adequately; because of the inherent power of the court; and because of the serious role that this court plays in criminal prosecutions, we establish these guidelines to take effect immediately. We still invite the Legislature to address our entire indigent defense system. We know that this approach may impact adversely on some counties so therefore, we encourage the Legislature to consider the possibilities of establishing a criminal and/or capital defense fund project and putting more burden on the state instead of individual counties.
However, until changes are made, which address the problems indictated throughout this opinion, these are the official guidelines to determine the proper pay for attorneys appointed to represent indigent defendants. Although we do not establish a ceiling for counsel hourly rate, we do establish a floor. In no case should counsel for inidigent defendants be paid less than $30 per hour.
At the conclusion of each trial, however, there shall he a hearing. Counsel for defendant can present evidence from numerous sources to establish that he is entitled to be compensated at more than the $30 rate. In the trial court’s determination, he must consider the complexity of the case; the experience of counsel involved; the time and labor involved in representing his client, which includes in-court and out-of-court time; the preclusion of other employment by the attorney due to the acceptance (appointment) of the case; the customary fee for similar work in the community; the undesirability of the case, as most capital cases are undesirable; and any other factor the court deems appropriate. See generally, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714-19 (5th Cir.1974) (twelve considerations to determine a reasonable attorneys fees). Accord Carter v. Clegg, 557 So.2d 1187 (1990). The trial judge’s determination shall be reviewable, however, when supported by sufficient and adequate findings, this decision only will be subject to this Courts familiar manifest error/abuse of discrtetion standard.
We reiterate that courts must be allowed to reasonably, appropriately and adequately compensate attorneys just as they do other things “that are absolutely essential to the performance of their judicial function.” Makemson, 491 So.2d at 1113. See also, Hosford, 525 So.2d 789. Token compensation is not the answer.
IV.
ONE FINAL POINT
The State attempts to distinguish Pruett’s case from Wilson’s by asserting that “nonprofit” or public interest attorneys should be paid less than “regularly” appointed counsel. Moreover, according to the state, “Pruett’s attorneys ... actively sought appointment as his counsel in his retrial ...” Brief of Appellee at 3. Pruett, on the other hand, insists that “Judge Coleman solicited counsel to take responsibility for the trial both because he was having difficulty finding counsel willing to tak on a case as notorious and complex as Pruett’s.” Reply Brief of Appellant at 1.
To briefly address this first point, we emphasize several things about this case. This was an extremely complex case which aroused the community’s outrage. See, Mississippi Publishers, 515 So.2d 1163; see also Pruett v. Thigpen, 444 So.2d at 819. Had Judge Coleman appointed other attorneys, they would have had to familiarize themselves with all the litigation that had transpired in the case before the retrial. They would have had to trace every step already taken by prior counsel. In the end far more money would have been spent in prosecuting this matter. Cf. Murray v. Giarrantano, 492 U.S. 1, -, 109 S.Ct. 2765, 2771, 106 L.Ed.2d 1, 12 (1989) (plurality opinion) (Sensible for state to concentrate resources in providing attorneys for capital defendants during the trial and appellate stages in capital proceedings. “Capable lawyering there would mean fewer colorable claims of ineffective assistance of counsel to be litigated on collateral view.”) Thus, this would have increased the possibility of having ongoing litigation concerning errors made during the course of the trial.
In a second argument the State asserts that these salaried public interest lawyers, who are not personally paying office expenses, should be paid on a scale which takes this into account. As a matter of fact, according to the State, because this organization is “funded by grants and donations [and] offers free representation to death row defendants” this would militate against their receiving any additional compensation for this case. Brief of Appellee at 3-4.
This argument as presented by the state is devoid of a scintilla of merit. The immediate response to this argument is if these attorneys are not permitted reasonable compensation for these reasons then very few attorneys would be entitled to no more than token compensation. For example, every associate in a law firm receives a salary and none pays overhead expenses. In the event that a corporate attorney is qualified to handle a capital case, then to pay an attorney more just because he/she is part of the corporate structure runs afoul of equal protection and equal justice.
Stated another way, to pay a public interest lawyer less just because he/she has chosen to accept the most unpopular cases says a lot about the state’s commitment to assuring that constitutional protections are continued to be of paramount importance in American Democracy. Cf. Stanford Daily v. Zurcher, 64 F.R.D. 680, 681 (N.D.Cal.1974), aff'd 550 F.2d 464 (9th Cir.), rev’d on other grounds Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (“The rationale of awarding reasonable attorneys fees ... springs from the need for placing the legal defense of certain constitutional principles ... on an equal footing with the protection of private interests”). In most instances these are the attorneys who provide the best assistance to defendants and therefore, if there is a distinction to be drawn, they should be the ones who are paid more.
In any event public interest lawyers should be paid no less than private attorneys. This fact just recently has been reiterated by the Supreme Court. The Court explained:
“... fee awards [should not] vary depending on whether [the client] was represented by private counsel or by a nonprofit legal services organization.” That a nonprofit legal services organization may ... have agreed not to charge any fee [from the client] ... does not preclude the award of a reasonable fee [by the government] ... calculated in the usual way.
Blanchard v. Bergeron, 489 U.S. 87, 95, 109 S.Ct. 939, 945, 103 L.Ed.2d 67, 76 (1989) (quoting Blum v. Stenson, 465 U.S. 886, 894, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)).
Reasonable fees should be the yardstick used to determine what compensation is due to an attorney. Courts “must avoid ... decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return”. Blum, 465 U.S. at 895, 104 S.Ct. at 1547 (quoting Stanford Daily, 64 F.R.D. at 681). Therefore, the Supreme Court held:
In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel ... are employed by ... a privately funded nonprofit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.
Blum, 465 U.S. at 895, 104 S.Ct. at 1547 (quoting Davis v. County of Los Angeles, 8 E.P.D. 5047 (¶ 9444), 5048-59 (C.D.Cal.1974)). Accord Alberti v. Sheriff of Harris County, 688 F.Supp. 1176, 1190 (S.D.Tex.1987) order modified, Alberti v. Klevenhagen, 688 F.Supp. 1210, aff'd in part, rev’d in part on other grounds, 903 F.2d 352 (5th Cir.1990) (Reasonable fees are determined by the prevailing market rate; the prevailing market rate is the rate existing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation; prevailing market rate must be the same, irrespective of whether a plaintiff was represented by private counsel or by a nonprofit legal services organization.) (emphasis added). Any amount that is awarded to Pruett’s counsel, even if its determined by market value or reasonableness, cannot be characterized as a “windfall” because:
... [F]ee wards, properly calculated, by definition will represent the reasonable worth of the services rendered ... It is central to the awarding of attorney’s fees ... that the district judge, -in his or her good judgment, make the assessment of what is a resonable fee under the circumstances of the case.
Blanchard, 489 U.S. at 96, 109 S.Ct. at 946, 103 L.Ed.2d at 77.
Based on the foregoing, it is unquestionable that public interest attorneys should be paid at the same rate that private counsel are paid when they are appointed to represent indigent defendants.
CONCLUSION
In the end, we conclude that the statuory rate of compensation adversely impacts on the courts efficient administration of justice. Because of that infringement and because the Court has the obligation of appointing counsel, we adopt the foregoing method in compensating counsel.
See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
A capital case is criminal offense and crime punishable by death or life imprisonment in the state penitentiary. See MISS.CODE ANN. § 1-3-4 (Supp.1990).
The State, however, proposes that there should be a cap on the fees which equalling $25.00 per hour for a maximum of 200 hours.
Woodson specifically states that "the penalty of death is qualitatively different from a sentence of imprisonment however long.... Because of that qualitative difference, there is a corresponding need for reliability in the determination that death is the appropriate punishment in a specific case.” Id. 428 U.S. at 305, 96 S.Ct. at 2991 (footnote omitted).
Other courts similarly have expressed the special nature of death penalty proceedings. For example, in his book, a former justice of the Supreme Court of California gave this discussion: Capital cases, because of their complexity and the high stakes, are enormously costly, both at trial and on appeal; indeed, according to some data, it costs the public more to litigate death penalty cases to execution than it would cost to keep the defendant in prison for life. But the costs are not just monetary; there are costs to the system that cannot be measure in dollars alone. Every lawyer and judge familiar with the field knows that issues of criminal law and criminal procedure tend to be decided differently in the context of a death penalty appeal than otherwise. Death penalty cases require an enormous amount of judicial attention. The appellant records and the briefs all tend to be exceptionally large, the issues tend to be complex, and once the defendant is executed, mistakes cannot be corrected. Most staff lawyers and judges tend to feel a special sense of responsibility to study the record carefully and to consider issues that may not have been raised by defendant’s counsel. Grodin, In Pursuit of Justice, 100 (1989).
As a matter of fact, the ABA has established these guidelines for appointing counsel for these cases: A. Minimum standards that have been promulgated concerning representation of defendants in criminal cases generally, and the level of adherence to such standards required for non-capital cases, should not be adopted as sufficient for death penalty cases. B. Counsel in death penalty cases should be required to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, zealously committed to the capital case, who had adequate time and resources for preparation. American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Commentary to Guideline 11.2 (1989). .In fact, some members of this Court accepted this notion of capital cases: "Representation of one charged with a capital crime is one of the most serious — and most unpleasant responsibilities that may be visited upon a member of the bar.... Timid counsel are of no help in this regard." Pruett v. Thigpen, 444 So.2d 819, 834-35 (Miss.1984) (Robertson, J., specially concurring, joined by Patterson, C.J., Lee Dan and Prather, JJ.), aff'd 805 F.2d 1032 (5th Cir.1986), cert. denied 481 U.S. 1033, 107 S.Ct. 1964, 95 L.Ed.2d (1987).
In his brief Pruett notes that the $1,000 fee paid to each of the attorneys represented $2.22 per hour for Bright and $2.07 for Singleton. Therefore, they were paid less than the minimum wage. Wilson's counsel likewise were paid less than the minimum wage as Dennis Horn expended 562 hours on the case and Barry Powell spent 779.2 hours.
To prepare for this motion, counsel felt obligated to find an expert and, without having the opportunity to secure advance authorization from Judge Coleman, paid $3,250 to Dr. Melvin A. Gravitz for his expert assistance in preparation and testimony. The trial court later denied counsel’s motion for reimbursement for Gravitz’ bill. See, Brief of Appellant at 5.
In addition to motions seeking a determination of the admissibility of the prior convictions, counsel applied for funds to bring a witness from Arkansas for pretrial hearings. For the penalty phase, counsel sought funds for witnesses from North Carolina, as well as from New Mexico, Nevada and Ohio. The investigation necessary to compile this list was far broader. Moreover, counsel also were required to spend several days during the middle of trial investigating an alleged stabbing at the Mississippi State Penitentiary at Parchman. This investigation required interviews with a large number of inmates and personnel at the penitentiary and reviewing volumes of records. See, Brief of Appellant at 5, nn. 6-8. .This fee cap could have been swallowed by a month’s lodging in local accommodations for counsel since they were from out-of-state. Add this to the cost for meals and long-distance telephone calls required during the trial then there is very little money left as payment for handling the case. Counsel, however, were gracious enough not to seek reimbursement for these expenses.
Counsel, however, conducted a heroic performance, and they continue to do so. See, Robertson, The Lawyer as Hero, 53 Miss.LJ. 431 (1983).
The record does not reflect how much the experts for the prosecution were paid. On another note, we do know at the time these cases were filed for appeal, MISS.CODE ANN. § 25-3-32 (Supp.1988) provided that the district attorney’s annual salary shall be $30,000 or 90% of the circuit judge's salary. Circuit judges' salary under MISS.CODE ANN. § 25-3-35 was $61,-200; therefore, the district attorney’s salary eq-ualled $55,080. Today circuit judges’ salary is $66,200 see, MISS.CODE ANN. § 25-3-35 (Supp. 1990); therefore, the district attorney’s salary is $59,580.00. MISS.CODE ANN. § 25-3-32 (Supp.1990).
For example, counsel for Wilson conducted at least three trials, and more than fifty motions were filed. The first trial, which lasted eight days, ended in a hung jury. At this trial thirty-seven witnesses testified and ninety-one exhibits were introduced into evidence. After reindictment, Wilson was convicted in a fifteen-day trial. At this trial sixty witnesses testified. At the conclusion of the guilt phase, a sentencing phase was conducted. The jury was unable to agree upon a sentence; therefore, Wilson was sentenced to life imprisonment. Like Pruett’s counsel, Wilson’s counsel conducted an heroic performance. .See, Death Penalty Questionnaire Responses of those having conducted Death Penalty case, reproduced in Brief of Amicus Curiae Mississippi Trial Lawyers’ Association and Magnolia Bar Association in Support of Petitioner, Wilson v. State, 574 So.2d 1338.
We realize that there are those who believe the judiciary's sole role is to preside over the adjudicative process and that providing manpower for criminal defense is an executive function. See, State v. Lynch, 796 P.2d 1150, 1166 (Okl.1990) (Opala, V.C.J., concurring in part and dissenting in part). But see majority, Lynch, 796 P.2d at 1162-63; and 796 P.2d at 1174 (Sims, J., Dissenting.) Our responsibility, however, goes beyond adjudicating. Cf. O'Coins, Inc. v. Treasure of the county of Worcester, 362 Mass. 507, 510, 287 N.E.2d 608, 611 (1972) (court’s authority is not limited to adjudication, but includes certain ancillary functions, such as rule-making and judicial administration, which are essential if the courts are to carry out their constitutional mandate); see also, State Courts: A Blueprint for the Future, National Center for State Courts 145 (1978) (Judiciary’s role is more complex than simply adjudicating disputes. It takes on "executive funcitons” to the extent that judges are involved with the administration of the litigation system and it has some legislative function in the development of the substantive law within the jurisdiction through the decisional process). See generally, Cratsley, Inherent Powers of the Courts, The National Judicial College (1980).
In the dissenting opinion of Bailey, two justices asserted that: As a matter of public policy the circuit court is vested with inherent power to do any and all things necessary to the end that its processes may be accomplished and that the orderly administration of justice may proceed unfettered and unrestraned. This power includes to require the county to pay the necessary expense of accomplishing its purposes, whether there is a statute specifically authorizing such payments or not. If-it was otherwise the legislature could, if it desired, make it impossible for the court to carry out its constitutional mandate. 236 So.2d at 424 (Inzer, J. and Etheridge, C.J., dissenting). Accord Hosford, supra.
In Young, the specific question before the court was whether 1150.00 for counsel was so inadequate that it is tantamount to denying due process of law. Id. at 320. Young was a case that involved an armed robbery. The fact that the cases sub judice involve capital crimes allows this court to use a higher scrutiny when addressing this issue; therefore, this Court easily can find that $ 1,000 is not an adequate/reasonable amount for time and services provided in this case. And, this limit impacts adversely on the effective administration of justice. Moreover, this Court must not be timid in asserting its perogative. In fact, the Supreme Court of Florida faced this same dilemma and concluded: We are mindful of the potential burden placed on ... treasuries as a result of the departure from the statutory maximum fee cap. However, since the State ... enforces the death penalty, its primary obligation is to ensure that indigents are provided competent, effective counsel in capital cases. White v. Board of County Commissioners, 537 So.2d 1376, 1379 (Fla.1989). See also Makemson v. Martin County, 491 So.2d 1109, 1113 (Fla.1986) ("In order to safeguard that individual’s rights, it is our duty to firmly and unhesitatingly resolve any conflicts between the treasury and fundamental constitutional rights in favor of the latter.”); see also BRIEF OF APPELLEE in Wilson v. State, 574 So.2d 1338 ("[I]f Mississippi’s prosecutors are to execute the will of the people and pursue the death penalty ... then the people must be prepared to shoulder responsibly the expense of reasonable attorney compensation”). Cf. Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985) (where rights of the defendant are weighed against financial imposition on the state, “the State’s interest in its fisc must yield’’); Cunningham v. Superior Court (Ventura County), 177 Cal.App.3d 336,. 351, 222 Cal.Rptr. 854, 864 (1986) (constitutional rights are not measured or limited by monetary considerations).
In capital cases, counsel has to prepare for two trials. The issues in the trial are different. In order to prepare for both phases counsel must conduct a detailed investigation. This notion itself has prompted the Florida Supreme Court to refine its rule allowing a waiver of the limitation in capital “cases involving extraordinary circumstances and unusual representation.” Makemson, 491 So.2d at 1110. In White v. Board of Commissioners, the court concluded that one would be "hard pressed to find any capital case in which the circumstances would not warrant an award of attorney’s fees in excess of the current fee cap [of |3,500].” 537 So.2d at 1378. See also Bias v. State, 568 P.2d 1269, 1270-271, n. 1 (Okla.1977) (“the expenditure of 255 hours on a murder case clearly is ... burdensome, considering a lawyer has an average of 1,200 billable hours per year.”); Jewell, 383 S.E.2d at 547 (where lawyers losing money on cases, “effective immediately no lawyer in West Virginia may be required to devote more than 10 percent of his normal work year to court-appointed cases.”) (emphasis in original). Because of the exhaustive investigation and preparation necessary for capital litigation, all capital trials involve “extraordinary and unusual” representation. Capital triáis are not alone in requiring extraordinary and unusual circumstances. Indeed other cases which do not involve capital crimes exhaust just as much time as a capital trial. Because we deem those cases as just as important as captial cases, notwithstanding the heightened scrutiny involved in capital cases, we inform trial judges, the bar and the public that this decision is just as applicable to those cases and criminal cases in general. Simply put, in order to prevent the remedy from resulting in a stop-gap measure, we hold that the remedy must be extended to all criminal trials.
This Court has explained that: [p]rior to the adoption of the Constitution of 1890, a citizen was only protected against the taking of his property for public use without due compensation; he had no protection against injuries to his rights ... less than the appropriate of the property itself. The words "or damaged” were inserted in the section of the Constitution ... in order to remedy this wrong, and it was the manifest purpose of the framers of the Constitution to protect the citizen in the use and enjoyment of his property, and to guarantee him those damages which were not embraced within the actual taking of property. Parker v. State Highway Commission, 173 Miss. 213, 215, 162 So. 162, 163 (1935) (emphasis added).
One court has noted that the impact of Dillon is clear. Mississippi and Alaska are two of several states that simply have quoted this language from Dillon without discussion. See, State ex rel. Scott v. Roper, 688 S.W.2d 757, 762, n. 7 (Mo.1985). But, while some courts hold onto Dillon, "[a] substantial minority of courts take the position that an attorney may not be appointed to render gratuitous service.” * * * Moreover, "the majority of commentators also appear to reject the reasoning in [Dillon ]." Id. at 764 (citations and footnote omitted).
We reiterate that this duty rests with the court and not the executive or legislative branches. In Powell v. Alabama, the Supreme Court provided the following discussion: [W]here the defendant is unable to employ counsel ... it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law ... * * * The duty of the trial court to appoint counsel under such circumstances is clear, as it is clear under circumstances such as are disclosed by the record here; and its power to do so, even in the absence of a statute, can not be questioned. Attorneys are officers of the court, and are bound to render service when required by such an appointment.... The United States by statute and every state in the Union by express provision of law, or by the determination of its courts, make it the duty of the trial judge, where the accused is unable to employ counsel, to appoint counsel for him. 287 U.S. 45, 71, 73, 53 S.Ct. 55, 65, 65, 77 L.Ed. 158, 171, 172 (1932) (emphasis added).
One prosecutor has defined the State’s interests as follows: First, given the serious consequences ... a defendant deserves to have decent counsel who can devote time, energy, experience and requisite skill to his client’s cause. Second, from the standpoint of the prosecutor, it is generally preferable to have quality opposition than to have a bumbler. Quality opposition means that we can worry about our case — and not so much about whether all the issues have been raised by the defense.” Van de Kamp, The Right to Counsel: Constitutional Imperatives in Criminal Cases, 19 Loyola of L.A.L.Rev. 329, — (1985).
As has been noted in an analagous context, "[t]olerating a system in which perhaps one innocent man in a hundred is erroneously convicted despite each jury's attempt to make as few mistakes as possible is ... vastly different from instructing a jury to aim at a 1% rate of mistaken convictions." Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329, 1374 n. 143 (1971) (emphasis in original). Similarly, it is one thing to say that this Court will correct a failure in the process, where counsel’s performance is indeed deficient; it is quite another to say that the system should be designed to encourage deficient performance.
We, equally are concerned with the effective representation of all criminal defendants.
Various attorneys with experience in capital cases echoed a similar view. Merrida Coxwell and Percy Stanfield simply cannot "afford to accept appointment to any more capital murder cases.” Dennis Sweet does not feel he can take on another case, "[biased on the economics of the situation.” Wilson v. State, 574 So.2d 1338, Vol. —, T. —. On a similar note, one contract public defender stated that she got 153 cases in three months, and she refused to take any more. Her contract required her to handle anything that came through the door. Her salary was approximately $24,000.00. She was "offered the chance to resign[, and she] took it.” See, Coyle, Strasser & Lavelle, Fatal Defense, National Law Journal at 333, June 11, 1990. .When this happens, the obvious occurs: lawyers can never achieve the level of experience required in this "highly specialized [area ... where] few attorneys have 'even a surface familiarity with the seemingly innumerable refinements....’” Irving v. State, 441 So.2d at 856.
A recent study of six southern states focused on this very issue. One of the key findings concluded that: Wholly unrealistic statutory fee limits on defense representation — such as Mississippi’s flat unwaivable $1,000 cap, equivalent to a fee of about $5 per hour for many lawyers — act as disincentive to thorough trial investigation and preparation. See, Coyle, Strasser & Lavelle, Fatal Defense, The National Law Journal, June 11, 1990 p. 30. See abo Note, Uncompensated Appointments of Attorneys for Indigent Criminal Defense: The Need for Supreme Court Standards, 14 S.W.U.L. Rev. 389, 398 (1984) ("studies and current cases support the correlation between the amount of money that is expended for defense services and the resulting quality of representation received.”); Rural Justice at the Crossroads, 4 Cai-if.L.Rev. 22, 25 (1984) ("modest hourly rates tend to attract well-intentioned but often inexperienced lawyers”); Defenders Underpaid, ABA report says, 67 A.B.A.J. 1107 (Sept.1981) (undercompensation means that "private attorneys often are unwilling to accept appointments or don’t put forth every effort for their clients.”); Feldman, But who will pay the Attorney?. 22 Judges J. 1, 19 (Winter 1983) (undercompensation of attorneys creates "stopwatch justice.”).
All capital cases are unusual or extraordinary. See, White, 537 So.2d at 1380. “Capital trials confront defense attorneys with a unique separate sentencing phase and obligate them to master appellate doctrine that limits review of trial errors as well as anticipate new capital law percolating in courts around the country.” Coyle, Strasser & Lavelle, Fatal Defense at 31. See abo, supra, pp. 1346-1348.
This argument is deflated when this record is examined. Pruett received equal justice. His attorneys performed excellently, as if they were retained with top dollars.
Wilby v. State, 93 Miss. 767, 777, 47 So. 465, 466 (1908). .For example, Pruett’s counsel, who were paid $1,000 each, paid one of their experts $3,250. Other out-of-pocket expenses included housing accomodations, food and long distance telephone calls. .This is in accord with the Mississippi Rules of Professional Conduct which recognize that lawyers are permitted to withdraw from representing a client if "the representation will result in an unreasonable financial burder on th lawyer ..Rule 1.16(b)(5); accord. ABA Guidelines in Death Penalty Cases, commentary to Guideline 10.1 (Low fees make it economically unattractive for competent attorneys to seek assignments and to expend the time and effort a case may require); see also, supra, at 1359-1361.
We are constitutionally obligated to "administer justice without respect to persons, and do equal right to the poor and to the rich." MISS. CONST. Art. 6 § 155 (1890).
In another section of its brief, the Attorney General reiterates that the Legislature has "already declined in its most recent session to proffer a remedy of its own volition, [therefore] it is apparent that this Court may seek amelioration upon its own inherent authority.” Brief of Appellee at 52-3.
The trial court in each instance found that these hours were reasonable in representing the two defendants.
See, White, 537 So.2d 1376 (Fla.1989).
The commentary to that guideline provides that flexible standards for compensation must be created. These standards should take into consideration the number of hours expended plus the effort, efficiency and skill of capital counsel. Among the criteria might be the role and experience of the attorney; less experienced co-counsel might be compensated at a lower rate than lead defense attorneys ... Flat payment rates or arbitrary ceiling should be discouraged since they impact adversely upon vigorous defense. Rather assigned counsel should be provided a rate of hourly compensation which reflects the extraordinary responsibilities and commitment required of counsel in death penalty cases.
We note that there are those who believe that the statute allows for flexibility because it provides that counsel shall be reimbursed for actual expenses although his compensation for services shall not exceed $1,000. Therefore, his compensation may exceed $1,000 as a necessary expense of the litigation. See, Morris, Mississippi’s Challenge, 9 M.C.L.Rev. at-. We, however, believe that the approach presented today will avoid confusion in the future and it will negate endless litigation on a case by case basis.
In non-capital cases, however, counsel can be paid at a lesser rate. Realizing that some non-capital cases are as complex or even more so, upon sufficient showing of the complexity of the issues involved, the experience of counsel, and the time involved, the trial court can determine that counsel should be paid at the rate greater •than assitant district attorneys but no more than the district attorney. In no event should counsel be paid at a rate less than the assistant district attorney in that district with the lowest salary.
In the long run, this Court can save thousands of dollars for the State by reasonably compensating counsel and in investing in effective counsel. "There is a direct and positive impact in states that invest in special training for capital defense lawyers: fewer constitutional flaws_” Coyle, Strasser & Lavelle, Fatal Defense, National Law Journal 41 June 11, 1990. Skilled counsel will not only be able to bargain for and win on a lesser charge. Moreover, because the state has invested in skilled counsel, there may still be appeals, but "fewer cases will come back to be retried because of errors; retrial is very expensive.” Statement of Robert Spagenburg, nationally known expert on indigent defense, quoted in Fatal Defense, supra, at 41. As a matter of course, new decisions are generally applicable only to those cases not yet final. "By ‘final,’ we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93 L.Ed.2d 649 (1987). We adopt this approach today and those petitioners who have raised the issue in court will get the benefit of this rule.
One should remember that this is now a dissenting opinion.
Marion Albert PRUETT, Appellee, v. Larry NORRIS, Appellant. Marion Albert PRUETT, Appellant, v. Lany NORRIS, Appellee.
Nos. 97-2004, 97-2236.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 11, 1998.
Decided Aug. 7, 1998.
Darnisa Evans Johnson, Sr. Asst. Atty. Gen., Little Rock, AR, argued, for appellant.
Thomas M. Lahiff, Jr., New York City; argued, for appellee.
Before WOLLMAN and LOKEN, Circuit Judges, and BOGUE, District Judge.
[OPINION BY WOLLMAN, Circuit Judge. type=majority]
WOLLMAN, Circuit Judge.
Larry Norris, Director of the Arkansas Department of Correction (the State), appeals from the district court’s judgment granting Marion Albert Pruett’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We reverse.
I.
In 1979, Pruett was released from a 23-year federal penitentiary sentence for bank robbery, apparently in exchange for his testimony against an underworld figure with whom he was serving time. Pruett was placed in the Federal Witness Protection Program in New Mexico, where he lived under an assumed identity with his wife, Pamela Sue Carnuteson. In April of 1981, Carnuteson was found murdered, her body beaten with a hammer and burned with gasoline. Before authorities could gather enough evidence against him, Pruett fled and embarked on a cross-country spree of armed robberies, abductions, and murder. Among Pruett’s more brutal offenses were the murder of Peggy Lowe, a savings and loan officer whom he abducted during a robbery in Jackson, Mississippi, and later shot in the back of the head, and the murders of James R. Balderson and Anthony Taitt, two store clerks whom he shot during separate robberies on the same day in two Colorado cities.
On October 11, 1981, Pruett arrived in Fort Smith, Arkansas, and began scouting the city for a place to commit yet another robbery. He looked for a bank or a store, but since it was Sunday and most establishments were closed he decided to park his ear in a secluded, wooded area known as Horseshoe Bend. There, he injected himself with cocaine and consumed whiskey for several hours. Sometime after midnight, Pruett drove to a nearby Convenience Corner grocery mart he had observed on his previous trip to town. Through the window, he could see that Bobbie Jean Robertson, the young woman who worked the 11:00 p.m. to 7:00 a.m. shift, was alone. As Pruett recalled during his confession: “I pulled in and was going to get gas and I seen that there was a girl working there by herself and I said well hell, I think I’ll just rob her and kill her so that’s what I done.”
Pruett entered the store armed with a .38 caliber revolver and instructed Ms. Robertson to place the money from the cash register in a paper bag. He told her to get her pocketbook and then ordered her into his car. As he drove to the secluded area where he had earlier parked, Pruett assured Ms. Robertson that if she cooperated she would be released. When they reached Horseshoe Bend, he instructed Ms. Robertson to get out of the car. She began walking away; then turned and asked if she could have her purse. Still in the car, Pruett raised his revolver and fired. The first bullet struck Ms. Robertson on the upper left thigh, fracturing her femur. As Ms. Robertson struggled and tried to run away, she was struck by a bullet in the right shoulder and fell to the ground. Pruett pulled his car around, got out, and walked over to her. He bent down, pressed the muzzle of his revolver against the young woman’s left temple, and fired the third and fatal shot. Pruett returned to his car and drove off with the pocketbook and approximately $165.00 from the store. The next day, police discovered Ms. Robertson’s body in a thicket of weeds and small brash just a few feet from the dirt road where she had been murdered.
Five days later, Praett was stopped for speeding in Texas. The officer saw the holster containing Pruett’s .38 caliber revolver protruding from beneath the front seat of Pruett’s automobile and arrested him.
Praett was returned to Mississippi, where he was charged in state court with the murder of Peggy Lowe. While awaiting trial in Mississippi, Pruett was interviewed by Detective Larry Hammond of the Fort Smith Police Department, to whom -he provided a detailed confession to the murder of Bobbie Jean Robertson. A jury convicted Pruett of Ms. Lowe’s murder and he was sentenced to death. Praett was then remanded to the custody of the United States and sent to Colorado to be tried for the murders of Balderson and Taitt. Pruett pled guilty to those crimes and received consecutive life sentences.
Pruett was returned to Arkansas to- face charges in Ms. Robertson’s death. He was arraigned on a capital murder charge on June 12, 1982, in the'circuit court of Sebastian County and pled not guilty. The public defender was appointed to assist Pruett, who asked to represent himself. After discussions with counsel, the court set trial for August 30, 1982. In late July, the defense filed a motion for a continuance, which the court denied. In early August, the defense filed a motion for change of venue. At a subsequent pretrial hearing, the defense renewed its motion for continuance. The court again denied the motion, but informed the public defender that it would grant a continuance in all other cases set for trial in which he was involved. Three days later, the court granted the motion for change of venue and transferred the trial to Van Burén in Crawford County, which is adjacent to Sebastian County and in the same judicial district.
On August 30, voir dire began as scheduled. The defense moved to have the jury panel quashed, for continuance, and for a second change of venue. These motions were denied. After voir dire was completed, the defense renewed its motions to quash the jury panel and for a second change of venue. Once again, the motions were denied. On September 9,1982, after a trial that featured Pruett himself delivering a closing argument in which he admitted to having killed Ms. Robertson, the jury found Pruett guilty of capital murder. At the conclusion of the penalty phase of the trial, the jury sentenced Pruett to death by electrocution. The court entered judgment on the verdict and sentence, and set Pruett’s execution for March 10,1983. Pruett was then remanded to New Mexico to face charges for the murder of his wife. Pruett was then returned to Mississippi and placed in the custody of the Mississippi Department of Correction.
Meanwhile, Pruett’s conviction and sentence for Ms. Robertson’s murder were affirmed by the Supreme Court of Arkansas. See Pruett v. Arkansas, 282 Ark. 304, 669 S.W.2d 186, 191 (1984), cert. denied, 469 U.S. 963, 106 S.Ct. 362, 83 L.Ed.2d 298 (1984). The court denied his subsequent petition for posteonvietion relief. See Pruett v. Arkansas, 287 Ark. 124, 697 S.W.2d 872, 879 (1985) (per curiam). In June of 1987, Governor Clinton filed a demand that Pruett be returned to Arkansas to face execution for Robertson’s murder. In March of 1988, Pruett was extradited from Mississippi to Arkansas and remanded to the Department of Correction to await execution of sentence. Execution was set for April 7, 1988. The district court granted Pruett a stay of execution on April 4, 1988, pending a ruling on his petition for writ of habeas corpus filed that day pursuant to 28 U.S.C. § 2254.
Following proceedings that extended over a period of some nine years, the district court granted Pruett’s habeas petition. See Pruett v. Norris, 959 F.Supp. 1066, 1092 (E.D.Ark.1997). The court vacated Pruett’s conviction and sentence and ordered the State to release him or retry him within 120 days. See id. Although denying fourteen other asserted grounds for relief, as well as a challenge to the constitutionality of Pruett’s extradition from Mississippi, the court held that: (1) Pruett had been denied a fair trial because of pretrial publicity, see id. at 1070-81, and (2) the admission of hypnotically refreshed testimony during the penalty phase of his trial violated Pruett’s right of confrontation. See id. at 1081-83. The district court denied the State’s motion to stay its order granting habeas relief. After the State filed its notice of appeal, we stayed the district court’s order pending this appeal.
II.
When considering a state prisoner’s habeas petition to determine whether circumstances mandate postconviction relief, a federal court’s review is limited to determining whether the conviction or sentence was obtained in violation of the Constitution, laws, or treaties of the United States. See Crump v. Caspari, 116 F.3d 326, 327 (8th Cir.1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)); 28 U.S.C. § 2254(a). In making this assessment, we presume state court findings to be correct unless it is apparent that there was some deficiency in the fact-finding process. See Amrine v. Bowersox, 128 F.3d 1222, 1228 (8th Cir.1997) (en banc); 28 U.S.C. §. 2254(d) (1994). The presumption of correctness applies to all factual determinations made by state courts of competent jurisdiction, including trial courts ánd appellate courts. See Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We review the district court’s factual findings for clear error and its legal conclusions de novo. See Hadley v. Groose, 97 F.3d 1131, 1134 (8th Cir.1996).
The State first challenges the district court’s determination that Pruett was denied a fair trial because of pretrial publicity. Specifically, the district court faulted the trial courts refusal to grant Pruett’s motion for a second change of venue and its refusal to grant a continuance that presumably would have allowed Pruett to gather additional evidence to support such a motion. See Pruett, 959 F.Supp. at 1077. Additionally, the district court stated that “[t]he trial judge further erred in accepting at face value the belief of the jurors impaneled that they could ignore what they had read in newspapers, seen on television and heard and give Marion Albert Pruett the fair trial that was and is his right.” Id. These findings, entered some fifteen years after Pruett’s trial, stand in sharp contrast to those of the state trial court. On direct appeal, the Supreme Court of Arkansas, while acknowledging that “publicity was great in Crawford County as well as Sebastian County,” Pruett, 669 S.W.2d at 188, concluded that because the trial court correctly determined that Pruett could receive a fair and impartial trial in Crawford County, it did not abuse its discretion in denying a second change of venue or in failing to grant a continuance. See id. at 188-89.
A.
The Due Process Clause of the Fourteenth Amendment guarantees the Sixth Amendment right of jury trial in state criminal prosecutions. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This right includes the right to trial by an impartial jury. See, e.g., Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
The Supreme Court has discussed claims of constitutional error resulting from pretrial publicity in a number of post-Irvin cases. See, e.g., Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). A petitioner may attempt to prove that pretrial publicity was so extensive and corrupting that a reviewing court is required to “presume unfairness of constitutional magnitude.” Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); see also Snell v. Lockhart, 14 F.3d 1289, 1293 (8th Cir.1994); United States v. Faul, 748 F.2d 1204, 1211 (8th Cir.1984). A petitioner must satisfy a high threshold of proof in order to prove inherent prejudice. See Dobbert, 432 U.S. at 303, 97 S.Ct. 2290 (quoting Murphy, 421 U.S. at 798, 95 S.Ct. 2031) (prejudice from pretrial publicity will not be presumed in absence of “trial atmosphere ... utterly corrupted by press coverage”). We have held that the presumption of inherent prejudice resulting from pretrial publicity is a principle “rarely applicable, being reserved for extreme situations.” Snell, 14 F.3d at 1293; see also Perry v. Lockhart, 871 F.2d 1384, 1390-91 (8th Cir.1989); Clark v. Wood, 823 F.2d 1241, 1244 (8th Cir.1987); Wood v. Lockhart, 809 F.2d 457, 460 (8th Cir.1987); Johnson v. Nix, 763 F.2d 344, 347 (8th Cir.1985). In determining whether a defendant has met the standard of establishing presumed prejudice, “we consider the circumstances preceding his trial.” Snell, 14 F.3d at 1294.
“One who is reasonably suspected of [murder] ... cannot expect to remain anonymous.” Dobbert, 432 U.S. at 303, 97 S.Ct. 2290; see also Mu’Min, 500 U.S. at 429, 111 S.Ct. 1899 (“Any killing that ultimately results in a charge of capital murder will engender considerable media coverage”). An individual’s expectations of privacy and media restraint are lessened when he has resolved to invite the very attention and generate the very publicity of which he later complains. While he was awaiting trial in Mississippi for Lowe’s murder, Pruett elected to make several statements to newspaper and television reporters in which he implicated himself in various crimes and boldly labeled himself a “mad-dog killer.” Not surprisingly, Pruett’s pronouncements did not escape the attention of the Arkansas media.
At an evidentiary hearing held in December of 1994, the district court received testimony regarding the publicity surrounding Pruett’s 1982 trial. According to the court’s findings, the bulk of publicity to which the populations of Sebastian and Crawford Counties were exposed occurred in the weeks immediately following Ms. Robertson’s murder, approximately ten months before Pruett’s trial. As might be expected, interest in the case was rekindled as the trial drew near. The court found that Pruett’s videotaped statement that he was a “mad-dog killer” was played several times by virtually every local television station and numerous radio stations broadcasting in the region, although no time frame is indicated for these references. Pruett, 959 F.Supp. at 1080 n. 12. According to an expert witness retained on Pruett’s behalf, “It became commonplace to talk about Pruett as a ‘self-confessed maddog killer.’ ” Id.
Pruett’s witnesses made no attempt to characterize the impact of the media coverage as particularly inflammatory or prejudicial, but were largely content to simply document the quantum of its existence. See Dobbert, 432 U.S. at 303, 97 S.Ct. 2290 (citing Murphy, 421 U.S. at 798, 95 S.Ct. 2031) (“extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair”). Moreover, a more balanced portrait of the extent and intensity of pretrial publicity in this case emerges when one reviews the testimony of Pruett’s trial attorney:
Q: Did you form any opinions about how the publicity affected the jury?
A: Actually, I was disappointed it was not as extensive as I had been afraid it would be. There were people who said, “Yeah, I’ve heard the phrase ‘mad dog’' and I remember ‘mad dog killer’ but I’m not sure this is the same thing.” There was evidence of — There were some people who had some substantial information. There were people who had a little bit of recollection as to the phrase “mad dog killer” or “mad dog,” because that was a phrase that kept being run through the media.
Q: Okay.
A: But it was not as — As I say, I was somewhat disappointed. I wasn’t going to let the venue issue die. You know, one of the things that Mr. Pruett and I had. talked about when we were talking about the change of venue from Sebastian County to Crawford County was that I didn’t intend to just let it die, but if there was anything over in Crawford County, I was going to make a motion for continuance. I was going to ask for the chance to develop the motion for change of venue. And there was enough for me to make that motion, but I—
Q: But not as much as you would have thought?
A: Not as much as I really had anticipated.
Q: Have you handled other death penalty cases where the publicity was more pervasive?
A: Well, I had two cases where I felt the publicity was more extensive. One was Swindler. That case was a-trial on remand from the Arkansas Supreme Court. And we had 120 jurors ■ questioned and 79 excused for cause, so maybe I was spoiled by that case. But Simmons, I thought there would be an extensive — I thought publicity would be horrendous and I thought the jury — I thought the publicity was horrendous and I thought the impact on the jury would be substantial and I was surprised in the voir dire in that case. And that was in the same courtroom. That was in Crawford County in August of 1981. I was surprised that it wasn’t as substantial and extensive as I had anticipated.
Nothing suggests that the atmosphere surrounding Pruett’s trial was anything other than calm, orderly, and uneventful. The trial had none of the “circus atmosphere” that characterized the trials in Estes and Sheppard. Moreover, the trial was held eleven months after the original crime, long enough for much of any initial shock and hostility in the community to have dissipated. See Simmons v. Lockhart, 814 F.2d 504, 510 (8th Cir.1987) (recognizing benefits of cooling-off period of seven months). The record indicates that media coverage was largely unexceptional, perhaps even less pervasive and inflammatory than publicity generated in similar eases. Although Pruett’s decision to inject his “mad-dog killer” self-assessment into the stream of media may well have had a negative effect upon public opinion, such influences can normally be effectively neutralized by the curative procedural safeguards employed in this case, including a change of venue from the county in which the crime occurred and a thorough, individual voir dire of potential jurors. Accordingly, we conclude that the pretrial publicity in this ease fell short of the showing that must be made before prejudice of a constitutional dimension will be presumed. See, e.g., Snell, 14 F.3d at 1293 (pretrial publicity did not prejudice jury despite expert testimony that it was “as great or greater than the publicity in virtually any other trial they had seen”); Orsini v. Wallace, 913 F.2d 474, 482 (8th Cir.1990) (rejecting argument that pretrial publicity denied petitioner fair trial despite finding that case was “more highly publicized than any other criminal trial in recent Arkansas history”).
B.
Having concluded that the record does not support a finding of presumed prejudice, we turn to the second tier of analysis, which requires a petitioner to demonstrate actual prejudice as a condition to receiving habeas relief. See Murphy, 421 U.S. at 800, 95 S.Ct. 2031; Snell, 14 F.3d at 1294. In making this assessment, a court looks to “indications in the totality of circumstances” to determine if any inference of juror partiality rendered the trial fundamentally unfair. Murphy, 421 U.S. at 799, 95 S.Ct. 2031. In particular, when a petitioner alleges an improper denial of a motion to change venue, we conduct an independent evaluation of the voir dire testimony of the impaneled jurors. See Hill v. Lockhart, 28 F.3d 832, 847-48 (8th Cir.1994).
The Constitution does not require jurors to be ignorant of the facts and issues involved in a case. See Irvin, 366 U.S. at 722, 81 S.Ct. 1639; Cox v. Norris, 133 F.3d 565, 570 (8th Cir.1997). Instead, the relevant question is whether the jurors actually seated “had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton, 467 U.S. at 1035, 104 S.Ct. 2885; see also Mu’Min, 500 U.S. at 430, 111 S.Ct. 1899. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 723, 81 S.Ct. 1639; see also Cox, 133 F.3d at 570; Perry, 871 F.2d at 1390.
The question whether a jury was actually impartial is “plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton, 467 U.S. at 1036, 104 S.Ct. 2885. Because a determination of this kind “is essentially one of credibility, and therefore largely one of demeanor,” the trial court’s resolution of the question is entitled to special deference, id. at 1038, 104 S.Ct. 2885, and may be overturned only for “manifest error.” Id. at 1031-32, 104 S.Ct. 2885; see also Hill, 28 F.3d at 847-48.
The first eleven jurors in Pruett’s trial were selected from an original panel of 65 residents of Crawford County. Each of these jurors was accepted by the defense; none was challenged for cause or sought to be challenged peremptorily. A supplemental panel of twelve’ potential jurors was then summoned, and eight members of this panel were examined before a twelfth juror, G.R., was seated. The defense challenged G.R. for cause, which the court denied. The defense then stated that it likely would have exercised a peremptory challenge against G.R. had it not already exhausted its allotted twelve. The defense made no motion or request for additional challenges.
On direct appeal, the Supreme Court of Arkansas made the following observations regarding the jury selection process:
The number of jurors excused for cause by the trial court indicated that much publicity surrounded this case and that the court meticulously tried to select a fair and impartial jury. Of the 12 members who served on the' jury only three had prior knowledge of the facts of the case. The court utilized individually sequestered voir dire in the jury selection process. This was another precaution which the trial court used to insure proper selection of a jury. The court went so far as to allow the striking of jurors who were already seated.
Pruett, 669 S.W.2d at 188-89. The district court disagreed with these observations, finding that eleven of the twelve jurors had had prior exposure to the facts of Pruett’s case.
The district court’s emphasis on the number of jurors who had been exposed to some measure of information regarding Ms. Robertson’s murder or Pruett’s arrest begs the point of the proper inquiry to be made. “The accused is not entitled to an ignorant jury, just a fair one.” Simmons, 814 F.2d at 510. Here, each juror expressly affirmed that he or she could be impartial and render a verdict based solely on the evidence presented at trial, and nothing in the record suggests otherwise. See Perry, 871 F.2d at 1390 (“Perry points to nothing in the record that suggests that, the jury was partial, as he is required to do”).
We conclude that the record- does not support the district court’s finding that prejudice from pretrial publicity prevented Pruett from receiving a fair trial. Moreover, nothing in the record leads us to believe that the trial court’s factual determination that the jury could be impartial was manifestly erroneous. As a result, we conclude that the refusal to grant a second change of venue and the refusal to postpone the trial in order to allow the defense to gather evidence to support such a motion did not result in constitutional error.
III.
During the sentencing phase of his trial, the State called two witnesses to testify regarding Pruett’s robbery of the Unifirst Federal Savings and Loan Association in Jackson, Mississippi, and the abduction of Peggy Lowe. The State first called B.S., who was working as a teller when the robbery occurred. B.S. testified, in pertinent part:
Q: ... and what were the circumstances of that robbery?
A: ... [A] man came in and got all of our attention and said, hey, you know, this is a hold-up. He said if we set off an alarm, he would blow our damn brains out and he looked around and he wanted to know who the manager was and Miss B. said that she was and he told her that he wanted $100,000.00 out of the vault. She said, we don’t have that kind of money in the vault and he said, how much money do you have. She told him $10,000.00 and he said, get that. Then he looked around and he said, and I’m taking her as hostage and he pointed to me and he told me to get my keys to my car.
A: At that point, a customer came in the other side of the building and went to the other teller for them to .wait. That left Peggy Lowe and Pruett in the lobby. At that point, he had sent the branch manager to get the money and he made Miss Lowe move over to the desk and sit on the inside of the desk like she was waiting on him. He was sitting on the outside. Then someone come [sic] to the drive-in window and he motioned for me to go wait on the drive-in window. The branch manager had the money and about that time, he and Mrs. Lowe went to Mrs. Lowe’s office and her phone rang and he let her answer her phone and he was making her get her keys to her car and it was her son on the phone wanting to come and have lunch with her. Then, he started walking like they were going out of the office and he had the gun behind Mrs. Lowe’s back forcing her — not forcing her, making her go out of the office. Mrs. Lowe came around behind the counter — I left that out — Miss Lowe came around behind the counter and got the money from the branch manager and then put it in a sack that Pruett had given her and then they went out of the office.
Following B.S.’s testimony, the State called Sergeant O.T. McAlphin, a Jackson police officer, who testified that Pruett had confessed to shooting Ms. Lowe and had provided information that allowed police to recover her body. McAlphin also testified that Ms. Lowe had died from “a gunshot wound to the back of the head.” Lastly, the State introduced documents proving that, as a result of the aforementioned events, Pruett had been convicted on federal charges of armed robbery and kidnapping, pursuant to his guilty plea.
By way of mitigation, the defense called Detective Hammond, who related some minor details regarding his investigation of Ms. Robertson’s death, and Dr. Douglas A. Stevens, a clinical psychologist, who testified to his opinion that Pruett was suffering from the combined effects of cocaine and amphetamine psychosis to the point that he was “not clearly in contact with reality” when he killed Ms. Robertson. Pruett chose not to testify on his own behalf.
The jury found that Ms. Robertson’s murder was committed under two aggravating circumstances: (1) that Pruett had previously committed another felony involving “the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person,” and (2) that he had committed the murder of Ms. Robertson for pecuniary gain. Although it found that Pruett presented some evidence that his mental capacity was impaired as the result of drug abuse, the jury ultimately concluded that no mitigating circumstances existed at the time of the murder. Agreeing that the aggravating circumstances outweighed beyond a reasonable doubt any mitigating circumstances, the jury unanimously sentenced Pruett to death.
In 1988, Pruett’s attorneys learned that in September of 1981, B.S. had undergone hypnosis in connection with the FBI’s investigation of the Unifirst robbery. The district court found that the State was unaware of this fact when it called B.S. as a witness at the sentencing phase of Pruett’s Arkansas trial. The district court then found that the admission of B.S.’s testimony violated Pruett’s Sixth and Fourteenth Amendment right to confrontation. See Pruett, 959 F.Supp. at 1081. Concluding that the violation did not constitute harmless error, the court granted Pruett’s petition on this ground. See Pruett, 959 F.Supp. at 1082-88.
The admission of hypnotically refreshed testimony does not invariably result in constitutional error. See Boykin v. Leapley, 28 F.3d 788, 793-94 (8th Cir.1994); White v. leyoub, 25 F.3d 245, 247 (5th Cir.1994) (neither due process nor confrontation clause require per se bar to admission of posthypnotic testimony). A defendant states a Confrontation Clause violation by demonstrating that a reasonable jury might have received a significantly different impression of a witness’s testimony or credibility had the defense been permitted the opportunity to pursue its proposed line of questioning. See Harrington v. Iowa, 109 F.3d 1275, 1277 (8th Cir.1997) (citing Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).
Assuming, without deciding, that B.S.’s testimony violated Pruett’s right of confrontation, we proceed to the issue of whether that error was harmless. See Gee v. Groose, 110 F.3d 1346, 1350 (8th Cir.1997) (Confrontation Clause violations are subject to harmless error inquiry). We review the district court’s harmless error analysis de novo. See Orndorff v. Lockhart, 998 F.2d 1426, 1432 (8th Cir.1993).
In Omdorff, we set forth the following procedure for determining whether a Confrontation Clause violation resulting from hypnotically enhanced testimony was harmless:
We must first compare the pre- and posthypnotic statements to determine if any “significant differences” exist. If no significant differences are found, the error is deemed to be harmless. If, however, significant differences do exist, we must determine if the variations nevertheless are harmless. To accomplish that task, we assume that [the witness] had been cross-examined about the hypnosis, and we also assume that the damaging potential of that cross-examination was fully realized. That is, we assume the jury was made aware of any changes in [the witness’s] story after the hypnosis, as well as the possibility of “confabulation,” “suggestibility,” and “memory-hardening” that is associated with hypnosis. After making these assumptions, we must determine if we can still say that the error was harmless beyond a reasonable doubt.
998 F.2d at 1431-32 (internal citation and footnote omitted).
In conducting its Omdorff analysis, the district court determined that “significant differences” existed between B.S.’s pre- and posthypnotic statements, pronouncing the latter to have been “more detailed, more embellished.” Pruett, 959 F.Supp. at 1082. First, the court was troubled by the fact that in her pre-hypnotic statement B.S. had made no mention to police of the telephone call that Ms. Lowe received from her son during the course of the robbery. The court observed that this added detail “strengthened the prosecutor’s portrayal of Pruett as inhumane.” Id. at 1083. The court also expressed concern that, prior to being hypnotized, B.S. had apparently made no express reference to Pruett’s having held a gun to Ms. Lowe’s back during the commission of the robbery. See id. at 1082.
With all due respect to the district court’s analysis, we conclude that B.S.’s posthypnotic references to Pruett’s use of a gun and to the extraneous detail that Ms. Lowe received a phone call from her son during the robbery do not constitute material or significant differences between her pre- and posthypnotic statements regarding the manner in which Pruett committed the Unifirst robbery. Ms. B.S.’s testimony that Pruett had threatened to “blow our damn brains out,” coupled with Sergeant McAlphin’s testimony that Ms. Lowe had died as a result of a gunshot wound to the back of her head, established beypnd any serious doubt the fact that Pruett had used a gun during the robbery. The posthypnotic reference to the fact that Pruett had held the gun at Ms. Lowe’s back as he took her out of the building pales into insignificance in the light of the overall circumstances of the robbery. (Indeed, it would be an unusual jury that would not assume that; having threatened to blow the employees’ brains out, Pruett in all likelihood had brandished the weapon as he took Ms. Lowe from the building.) The posthypnotic reference to the phone call from Ms. Lowe’s son is of even less significance. Accordingly, any error resulting from the posthypnotic testimony was harmless beyond a reasonable doubt.
IV.
Pruett cross-appeals from the district court’s denial of relief on the ground that the jury was not instructed that the death penalty could not be imposed without a finding that Pruett acted with “reckless indifference to human life.” See Tison v. Ari zona, 481 U.S. 137, 157, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (holding that reckless disregard for human life is sufficiently culpable mental state to support death penalty in felony murder ease). The jury was instructed that Pruett could not be found guilty of capital murder under Arkansas law unless the State proved beyond a reasonable doubt that he “caused the death of Bobbie Robertson under circumstances manifesting an extreme indifference to the value of human life.” We agree with the district court that that instruction satisfies the constitutional requirements set forth in Tison and that it required the jury to make the finding necessary to support the imposition of the death penalty.
The cross-appeal is denied. The order granting Pruett’s habeas petition is reversed, and the case is remanded for entry of judgment dismissing the petition.
The HONORABLE ANDREW W. BOGUE, United States District Judge for the District of South Dakota, sitting by designation.
For a summary of Pruett's record of criminal violence, see Perry v. Norris, 879 F.Supp. 1503, 1538-40 (E.D.Ark.1995), aff'd, 107 F.3d 665 (8th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 15, 138 L.Ed.2d 1047 (1997).
Pruett was charged in federal court with the robbery of a federally insured savings and loan institution and with abducting Ms.'Lowe in connection with that incident, in violation of 18 U.S.C. § 2113(a), (d) & (e). Pruett pled guilty and received consecutive sentences of 25 years and life. .Pruett’s conviction and sentence were affirmed by the Supreme Court of Mississippi. See Pruett v. Mississippi, 431 So.2d 1101, 1110 (Miss.1983) (en banc), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Pruett’s petition for writ of error coram nobis was denied. See Pruett v. Thigpen, 444 So.2d 819, 828 (Miss.1984) (en banc). Subsequently, a district court in Mississippi granted Pruett a new trial, holding that the participation of an admittedly biased juror over the objections of both the defendant and the state entitled him to habeas corpus relief. See Pruett v. Thigpen, 665 F.Supp. 1254, 1266 (N.D.Miss.), aff'd, 805 F.2d 1032 (5th Cir.1986) (table), cert. denied, 481 U.S. 1033, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987). In February of 1988, Pruett was retried in Mississippi and once again convicted of Ms. Lowe’s murder. Because the jury was unable to reach an agreement during the penalty phase of trial, the court imposed a life sentence.
Pruett was convicted of murdering Carnuteson and sentenced to life imprisonment. See State v. Pruett, 100 N.M. 686, 675 P.2d 418 (1984).
Although the substantive standard by which federal courts review state court determinations of law under section 2254 was altered by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1218-21 (April 24, 1996), the Supreme Court has held that those changes do not apply retroactively to cases pending when the Act was signed into law. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); Henderson v. Norris, 118 F.3d 1283, 1288 n. 2 (8th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998). Because Pruett’s petition was filed long before the date of its enactment, the Act’s heightened evidentiary burden on a habeas petitioner’s challenge to a state court's factual findings does not apply in this case. See 28 U.S.C. § 2254(e)(1) (1998).
When Pruett renewed his argument regarding pretrial publicity in his petition for state postconviction relief, the Supreme Court of Arkansas reiterated: "As we said on appeal, the trial court meticulously tried to select a fair and impartial jury. Petitioner's allegations of juror bias arising from pretrial publicity are not substantiated in -this petition and are but a reworldng of arguments made at trial and on appeal.” Pruett, 697 S.W.2d at 878.
Defense counsel also gave the following testimony: Q: Okay. Did you consider when the venue was changed to Crawford County what the emotional impact would have been on those jurors in Crawford County? ... Of the crime, the emotional impact of the crime. A: I didn't feel that the impact would be nearly as direct. It wasn't in Van Burén.... The crime was not committed in Van Burén.
Contrary to the district court's apparent conclusion, this is not a case in which scrutiny of the venire reveals a level of widespread corruption resulting from exposure to pretrial publicity so pervasive and unrelenting as to constitutes inherent prejudice. According to the district court, 22 of the 77 potentialjurors (29 percent) acknowledged during voir dire that they likely could not be impartial or accord Pruett a presumption of innocence. See Pruett, 959 F.Supp. at 1075. In our view, such a figure does not evince a "pattern of deep and bitter, prejudice” against Pruett that would allow prejudice to he presumed. Snell, 14 F.3d at 1295 (constitutional error resulting from pretrial prejudice cohld not be presumed where 18 of 49 potential jurors (37 percent) expressed bias against defendant); see also Faul, 748 F.2d at 1213 (affirming denial of relief on similar grounds where 39 of 78 potential jurors (50 percent) were excluded as potentially partial); Murphy, 421 U.S. at 803, 95 S.Ct. 2031 (fact that 20 of 78 potential jurors (26 percent) were prejudiced against defendant "by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own”).
In order of selection, these eleven jurors were: R.R., D.W., M.R., J.H., M.C., D.B., T.P., C.H., L.W., M.L., and R.A..
The final decision to designate each of these individuals as satisfactory to the defense was apparently made by Pruett himself, acting as co-counsel.
The district court's analysis omitted two jurors while including two members of the venire (J.H. and N.S.) who were excused before selection was completed. See Pruett, 959 F.Supp. at 1078-80. Our review of the voir dire proceedings reveals the following: R.R. reported having read and heard about Ms. Robertson’s murder, but did not know the details of any alleged involvement by Pruett. See. Tr. Vol. III at 917-18. D.W. ‘‘[vjaguely” recalled having heard of the case. Tr. Vol. IV at 1080. M.R. had seen television and newspaper reports about the incident and knew that Pruett had been arrested as a suspect. Id. at 1093-96. J.H. had not seen any television reports, but had read about the murder and knew that "a man had been — been charged with it and that’s all — about all I’ve heard about it.” Id. at 1386-87. M.C. had heard of the incident and seen Pruett's picture on television. She also recognized the phrase "mad-dog killer," although she did not see Pruett’s press conference. Id. at 1397-1400. D.B. said that he had read about the murder and Pruett’s arrest and had seen a videotape of his being brought to the courthouse. Tr. Vol. V. at 1530-32. T.P. stated that she had heard Pruett was accused of the crime. Id. at 1690-91. C.H. was familiar with the incident and "how [Pruett] referred to himself, evidently he was upset and he called himself a mad-dog killer, is what I heard.” Id. at 1740. The trial court specifically questioned Pruett regarding this juror: THE COURT: And having heard all of this, it’s still your desire that she sit on the Jury? MR. PRUETT: Yes, sir, it is. Id. at 1756. L.W. had not heard anything about the case. Tr. Vol. VI at 1819. M.L. had heard about the crime and had seen Pruett "handcuffed” on television. Id. at 1834-35. R.A. had seen some television reports, but did not recall any details. He was under the impression that Pruett had been convicted of "some other crimes of violence.” Id. at 1973-74. As with C.H., Pruett himself expressly affirmed his desire that R.A. serve on the jury after a colloquy with the court. Id. at 1990-91. Lastly, G.R. indicated she had heard that somebody had been murdered and Pruett’s name had been mentioned in connection with the incident. She had seen, however, no television or newspaper reports. Tr. Vol. VIII at 2306.
In most federal habeas actions, a harmless error inquiry consists of assessing "whether the error 'had substantial and injurious effect or influence in determining the jury's verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). When a state court has not conducted its own harmless error analysis on a constitutional issue, however, we apply the Chapman standard, requiring the State to prove that the error "was harmless beyond a reasonable doubt.” Orndorff, 998 F.2d at 1430 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).