Full opinion text
ORDER B. AVANT EDENFIELD, District Judge. The Court this date enters the attached Orders in these habeas corpus capital punishment actions. Each case is unique, and, accordingly, each Order has been developed and is intended to be construed individually. Moreover, many broad questions which these cases might suggest have been reserved for possible future consideration in other contexts. Nonetheless, I am fully cognizant of the unique public concern which attaches to cases such as these. The Court also recognizes their broader significance in the development of law in this field and particularly with respect to United States Supreme Court decisions like Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), which in fact extensively discusses the Georgia Supreme Court’s analysis in Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977). Furthermore, the Court concludes that, precisely because these cases do present varied legal and factual questions, they offer a valuable opportunity for general comment on the development of the law of capital punishment. The Court also believes that its own experience in considering these cases may provide some useful insight into the practical possibilities and limitations of judicial review in this unique field. Accordingly, the Court attaches, as an appendix to these Orders, certain broad comments on the problems and, in this Court’s view, likely outcome of this on-going process of judicial and legislative development. Of course, these comments are, and must be, general and to some extent tentative, though they are certainly not unconsidered. Thus, I in no way intimate any settled view as to issues which may be presented to the Court in some future proceeding. Nor do these reflections constitute any part of the bases for the Court’s holdings with respect to the individual habeas petitions. CV480-251 Before the Court is a petition for writ of habeas corpus for review of the judgment of the Superior Court of Chatham County, Georgia, and the conviction and sentence of death imposed upon the petitioner. Numerous arguments have been raised by petitioner, but the Court will review only two in detail here: petitioner’s allegations of ineffective assistance of counsel, (1) in both the guilt and sentencing phases of trial because of a lack of expert psychiatric opinion in the development and presentation of his defense of insanity, and (2) at the sentencing phase of trial because of counsel’s failure to consider or develop possible mitigating circumstances. For reasons discussed below, the Court finds that both of these arguments must be sustained. Therefore, petitioner’s conviction and sentence of death will be vacated, and the case remanded for new trial on all issues, or release, within 120 days. Background Petitioner Joseph James Blake was tried in the Chatham County Superior Court for the murder of Tiffany Lowery, a two-year old child and the daughter of Jacquelyn Lowery whom Mr. Blake had been seeing for some time. The child was killed November 15,1975. Petitioner was brought to trial and convicted February 14, 1976. The death penalty was imposed February 18, 1976. Conviction and sentence were both upheld by the Georgia Supreme Court in Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977). Petitioner then filed for certiorari to the Supreme Court of the United States. This motion was denied November 14, 1977. Blake v. Georgia, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). On March 7, 1978, petition for writ of habeas corpus was filed in the Superior Court of Tattnall County. A hearing was held on May 24, 1978, with the petition denied by an Order of August 17, 1978. Petitioner’s application for certificate of probable cause to appeal was denied by the Supreme Court of Georgia on January 11, 1979. Petitioner also filed a motion for extraordinary relief which was heard in the Superior Court of Chatham County on May 13, 1979. Subsequently, this motion was denied and denial affirmed by the Georgia Supreme Court on October 16, 1979. Blake v. State, 244 Ga. 466, 260 S.E.2d 876 (1979). Petitioner then filed for writ of certiorari in the United States Supreme Court seeking review of the denial of this extraordinary motion. This petition was denied June 2, 1980, with rehearing also denied on August 11, 1980. Thereafter, a second state habeas corpus petition was filed in the Superior Court of Butts County. This action was dismissed as successive on September 2, 1980. The Georgia Supreme Court denied application for certificate of probable cause September 4, 1980. On September 5, 1980, this Court granted a stay of execution, to permit consideration of the present petition for habeas corpus relief, which was also filed September 5, 1980. A hearing was conducted on December 12, 1980. The respondent presented no evidence at this hearing. However, testimony was received from certain witnesses for petitioner, notably Mr. Reginald Haupt, Jr., who represented the petitioner at trial and subsequently in all other steps through denial of extraordinary relief by the Georgia Supreme Court. The Court also entertained argument at this hearing, and by prior written memoranda. Facts The circumstances leading up to the death of Tiffany Lowery are generally not in dispute. In November, 1975, Jacquelyn Lowery and the decedent child were living with her mother, Mrs. Florence Smith, and several of Mrs. Smith’s other children. Jacquelyn and Mr. Blake had dated for about nine months and planned to be married. The petitioner asked Jacquelyn to go out with him the evening of November 14,1975, but she told him that she planned to go out with a girlfriend, Denise Walker, instead. Nonetheless, Mr. Blake persisted and, finally, after meeting her at the Walker home, Jacquelyn agreed to let the petitioner take her out drinking. Jacquelyn’s mother kept Tiffany while Jacquelyn, Ms. Walker, the petitioner and several other persons went first to one bar and then another. During the course of the evening, a dispute developed between Mr. Blake and Jacquelyn, perhaps because of her interest in another man. Petitioner struck Ms. Lowery on the side of the head with his fist. He was ejected from the lounge at that time and again around midnight when he tried to return. Mrs. Smith testified that Tiffany and the other children had gone to bed shortly after 9:30 p. m. Mrs. Smith left the house to visit friends around 10:15 p. m. and returned about two hours later. She then noticed that the window next to the front door had been opened, and the curtains pulled back. However, Mrs. Smith did not believe anything was seriously amiss at that time. At approximately 1:00 a. m., Mr. Blake called Mrs. Smith. He asked whether Jacquelyn was home. When told that she was not, Mr. Blake informed Mrs. Smith that he had taken Tiffany. Mrs. Smith began scolding him for having the child out so late on a cold evening. Mr. Blake then hung up without saying anything more. However, it does not appear that Mr. Blake’s having the child was in itself a source of major concern. He had taken the child out alone several times in the past, and his relations with her as well as the rest of the family had been good. Petitioner testified that, after he had been thrown out of the bar the second time, he had gone back to Jacquelyn’s home. When no one answered, he opened the window, unlocked the door, and entered. He found everyone except Tiffany asleep. Mr. Blake testified that he asked Tiffany if she wanted to go with him. She agreed and they left by the back door. Mr. Blake indicated that his intention was to take the child away because her mother did not deserve the child and had mistreated her in a variety of respects. Mr. Blake testified further that he first intended to run away with Tiffany and, accordingly, crossed the Talmadge Memorial Bridge as the quickest exit route. Mr. Blake stated that he drove as far as Buford, South Carolina. However, he realized at some point that he could not simply run away with the child without being chased by the authorities. Initially, he reacted to this fact by deciding to kill himself and Tiffany there in Buford. Petitioner later decided to return to Savannah. He testified that he stopped on the bridge. There he and Tiffany prayed about going to “another world” and being together forever “on the other side.” Petitioner then dropped the child off the bridge to her death, which occurred on impact or very shortly thereafter. Mr. Blake explained that he postponed his own trip to “the other side” so that he could tell the child’s mother what had happened and why. Thus, petitioner did not in fact make any effort to conceal his actions. Quite the opposite, he contacted the police almost immediately after the incident, and began giving them substantially the same account of Tiffany’s death that he testified to at trial, emphasizing that “I know I did wrong, but in another way I did right,” T. 139, while never once indicating that he thought that the child had been harmed or killed. T. 147. Arguments Presented Petitioner here has raised numerous arguments as grounds for relief with respect to the guilt-innocence phase of the trial, as well as the sentencing proceeding. Several of these arguments relate to ineffective assistance of counsel. In particular, petitioner asserts constitutional error in that his attorney (1) failed to have closing arguments transcribed; (2) failed to prepare properly for the sentencing phase of trial; and, (3) did not and could not obtain expert psychiatric assistance in the development and presentation of the defense of insanity. Petitioner alleges constitutional error in several other respects as well: (1) that the jury’s discretion in passing sentence was not sufficiently guided by the trial court’s instruction and statutory language, particularly that relating to “depravity of mind” as an aggravating circumstance; (2) that petitioner was prejudiced at both stages of the trial by introduction of evidence of a prior misdemeanor conviction which was not relevant to his guilt or permissible as an aggravating circumstance; and (3) that the jury did not believe that their finding would lead to petitioner’s execution. More generally, petitioner argues (1) that administration of the death penalty in the manner prescribed in Georgia is unconstitutionally cruel and particularly so here in view of petitioner’s present mental disability; (2) that the death penalty is inflicted arbitrarily under Georgia law; (3) that infliction of the death penalty is based on impermissible factors such as race, sex, and poverty; (4) that no theoretical justification for the death penalty exists; and, (5) that persons having scruples against capital punishment were improperly excluded from the trial jury. Because the Court finds petitioner’s second and third arguments with respect to ineffective assistance of counsel determinative, only these issues will be considered below. Analysis (1) The Court will consider first whether Mr. Blake was afforded constitutionally adequate representation in the sentencing portion of his trial. The circumstances surrounding this proceeding were testified to in some detail at the December hearing in this case. Mr. Haupt indicated that he represented the petitioner as a court-appointed attorney. Mr. Haupt is an experienced trial lawyer having defended in as many as a hundred or more capital cases. However, Mr. Haupt testified that, as was then his custom, he did not prepare in any way to present mitigating factors in the event petitioner was convicted. Counsel explained that he had not proceeded to trial expecting or planning for the conviction which did come. Of course, in other cases where no bifurcated procedure was involved, Mr. Haupt’s policy would have created no problem. And, according to Mr. Haupt, under present policies of the Chatham County Superior Court, this approach would also have been adequate, because a continuance is generally permitted to allow preparation for the sentencing phase of trial. However, when Mr. Blake was tried, the custom was to proceed directly to the question of sentence. Thus, Mr. Haupt testified that, when the jury went out after closing arguments, he could “feel” that a verdict of guilty was likely. During the jury’s deliberations, he approached the trial judge and asked for a continuance to prepare for the sentencing phase. In line with prevailing policy, he was told that no continuance would be granted. Thus, even though no formal motion appears on the record, Mr. Haupt’s uncontradicted testimony is that he was forced by his own strategy and court policies to proceed to sentencing with no prior preparation or consideration whatsoever. No witnesses had been interviewed and no thought given to how counsel might show the jury “something good” about Mr. Blake. Mr. Haupt merely presented oral argument presumably not much different from that which had already failed in the prior phase of trial. No evidence in mitigation was presented, though the trial court did indicate that a psychiatrist’s report which was already in evidence could be considered by the jury. The broad legal standard for evaluating performance of counsel in this or other contexts is easily articulated. A defendant is entitled to an attorney likely to render and, in fact, rendering reasonably effective assistance, whether that attorney be retained or court-appointed. Kemp v. Leggett, 635 F.2d 453 (5th Cir. 1981). This standard is, of course, to be applied with particular care in capital cases. See Voyles v. Watkins, 489 F.Supp. 901, 910 (N.D.Miss. 1980); Smotherman v. Beto, 276 F.Supp. 579, 586 (N.D.Tex.1967). As the United States Supreme Court has noted, death is a unique penalty “both in its severity and its finality.... It. is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (Stevens, Stewart, Powell, JJ.). Furthermore, the importance of the attorney’s role does not diminish at the sentencing stage. Quite the opposite, “sentencing is a critical stage of criminal proceeding at which [the defendant] is entitled to effective assistance of counsel.” Id. at 358, 97 S.Ct. at 1204. Effective assistance at this stage requires “zealous, and not merely perfunctory or pro forma representation.” Voyles, supra, at 912. In the present case, this Court is confronted with conduct that falls far short of the requirement that reasonably adequate assistance in fact be rendered. Mr. Haupt’s uncontradicted testimony establishes that, through a combination of his own lack of foresight and trial policies which have since been abandoned, substantially no effort was made to prepare any defense for the petitioner in the sentencing phase of trial. To be sure, there is no reason to conclude that Mr. Haupt did not attempt or, in fact, accomplish a reasonably cogent argument before the jury. Cf. Voyles, supra, at 912. However, it is apparent that this argument could do little more than repeat what had already proven ineffective once before. Mr. Haupt in no way used or even considered additional evidence which might have been available to support the defendant’s cause. Such a performance hardly comports with the notion that the sentencing phase be in fact a distinct procedure where the jury’s attention is focused not just on the circumstances of the crime, but also on “special facts about this defendant that mitigate against imposing capital punishment (e. g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime).” Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1975) (Stewart, Stevens, Blackmun, Powell, JJ). Counsel’s failure to make distinct preparation here is particularly significant in light of the fact that “much of the information that is relevant to the sentencing decision may have no relevance to the question of guilty, or may even be extremely prejudicial to a fair determination of that question.” Id., at 190, 96 S.Ct., at 2933. There is authority for the proposition that ineffective assistance of counsel need not be grounds for new trial without some additional showing that prejudice resulted. In Davis v. Alabama, 596 F.2d 1214 (5th Cir. 1979), vacated as moot 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980), the court required a demonstration of harm arising through counsel’s failure to develop a possible insanity defense. However, Davis also makes clear that a showing of prejudice is not always required. “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice resulting from its denial.” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). The Supreme Court has apparently never applied the harmless error doctrine to a case involving ineffective assistance. of counsel, and, in fact, several recent cases do not even inquire into prejudice. See Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), rev'g. United States V. Fink, 502 F.2d 1 (5th Cir. 1974); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). See also Davis, supra, at 1221-22. Furthermore, the Court has held that, when a defense attorney puts on what amounts to no defense at all, it would “not stop to determine whether prejudice resulted.” Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961). The present case closely approaches a situation where effectively no defense at all was presented at the sentencing phase. To be sure, there was some effect from the prior cross-examination of the state’s psychiatrist, Dr. Bosch, though this was in itself seriously inadequate for reasons to be discussed shortly. Similarly, Mr. Haupt’s argument may have had some persuasive value. But, the uncontraverted evidence now before this Court establishes that Mr. Haupt simply made no independent effort to develop facts which might have established “something good” about Mr. Blake. Nonetheless, petitioner has made a credible if hardly overwhelming showing of prejudice. Several witnesses presented at the December hearing indicated that they knew the petitioner and would have testified in his behalf. These or other witnesses might conceivably have demonstrated to the jury that the petitioner was not the totally reprehensible person they apparently determined him to be. Certainly, they would have provided some counterweight to evidence of bad character which was in fact received. In any event, this Court is unwilling to engage in “nice distinctions” concerning what witnesses might have been available and precisely what testimony might have been given to what effect. Now, five years after petitioner’s trial, such fine calculations simply do not seem realistic. Petitioner has demonstrated that no favorable evidence was sought and that some was in fact available. This showing seems to the Court sufficient to support a new trial on the issue of sentence. Counsel’s conduct was clearly not “harmless beyond a reasonable doubt.” Davis, supra, at 1221, quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). (2) Petitioner’s allegation that effective assistance of counsel was denied by his attorney’s inability to obtain expert psychiatric advice and testimony is a source of particular concern to the Court. There is no question that the sanity of the petitioner was seriously in issue in this case. The very circumstances of the crime may be seen as creating real doubt as to Mr. Blake’s mental competence. Thus, on voir dire, the prosecution consistently asked potential jurors “Do you have any idea, any preconceived idea, that a person that would do something like this has got to be insane?” V.D., at 14. And, in fact, one potential juror was excluded because he was of the opinion that “anybody who would drop a baby off the Talmadge Bridge has got to be mentally deranged.” V.D., at 6. Furthermore, in his opening statement, the prosecutor specifically indicated that “the State’s case and a lot of the evidence you will hear will be directed toward the idea of motive and giving you an explanation of why this happened.” T., at 4. Counsel indicated that the state intended to show “a basis, a rational basis, behind his (Mr. Blake’s) actions,” T., at 7; and, Mr. Haupt joined the issue, claiming that “you will not find any rationalization; you will not find any rational basis or (sic) anything that occurred in the incident which you are about to try.” T., at 8. In this case, virtually the sole substantial issue at trial was the sanity of the defendant when the homicide occurred. This was well-recognized by both sides. It was also well-appreciated by the trial court which in fact ordered a psychiatric examination of Mr. Blake. This examination was performed under then-prevailing policies for indigent defendants in Chatham County. Mr. Blake was taken to Central State Hospital in Milledgeville, Georgia, for examination in the state-operated facility for the criminally insane. The stated purposes of this examination were to determine: (1) the defendant’s psychiatric condition at the time of the crime; (2) whether the defendant was competent to stand trial; (3) recommendations which might be appropriate, presumably for the defendant’s treatment; and, (4) any mitigating circumstances which might be present. T., at 109. The exact nature and extent of the examination which was performed is not easily determined from the present record. However, it appears that it included a personal interview with Dr. Miguel A. Bosch, director of the Forensic Psychiatric Center (the maximum security hospital) who then prepared a report which was the basis of his testimony at trial. Relying upon his interview with the defendant, and perhaps other information, Dr. Bosch testified that based upon on my examination and evaluation, what I saw it, to me this man is not suffering from a psychotic condition. He’s not suffering from what is called a schizophrenia reaction, paranoid type. He is not suffering from what is called a manic psychosis. He doesn’t have that kind of illness. He does have problem; he does have — again; he was upset, he was having financial difficulty.. .. T. 118. Dr. Bosch thus concluded that the defendant was not insane at the time of the interview. However, Dr. Bosch also found that Mr. Blake was then suffering from a “reactive-depressive condition” which the doctor attributed to his obviously difficult position. Dr. Bosch described this condition as involving feelings of guilt, depression, and tension as well as loss of memory and concentration, bad dreams, and other manifestations of distress. T. 91. In sum, Dr. Bosch found that Mr. Blake did have significant psychiatric problems, but that Mr. Blake was not at the time of the examination mentally incompetent. However, Dr. Bosch’s testimony on petitioner’s mental condition at the time of the incident and before is in striking contrast. On cross-examination, Dr. Bosch acknowledged that neither he nor, so far as he knew, any physician had examined Mr. Blake prior to the incident. He also indicated that some or all of Mr. Blake’s symptoms might have been present before Tiffany was killed. T. 98. Dr. Bosch acknowledged that Mr. Blake had told him of having vivid hallucinations at least since being admitted to the hospital. Most important by far, Dr. Bosch acknowledged the accuracy of his own report when it concluded that “[a]s for his [Mr. Blake’s] mental condition at the time of the alleged offense, we would like to state that no opinion could be reached regards to his condition at that time.” T. 109. Dr. Bosch explained the absence of findings on this critical issue by stating that he “couldn’t get any information from him. He claimed he had no memory of doing anything wrong. He said he lacked memory about the particular incident.” T. 124. As I have already indicated, it is not clear from the record whether Dr. Bosch interviewed petitioner on more than one occasion, though it appears that his report and his testimony dealt with only a single contact with Mr. Blake. T. 90-91, 93. However, even had the petitioner been unable to recall the incident when he spoke with Dr. Bosch, prosecutors had available the transcription of a taped confession which Mr. Blake gave at approximately 10:45 a. m., November 15, or only about eight hours after the homicide. T. 102. This statement described in some detail Mr. Blake’s impression of what he had done and why. Moreover, it was completed long before the petitioner had seen an attorney or anyone else who might have been able to “coach” him on the elements of the legal defense of insanity. Inexplicably, neither the tape nor the transcription were provided to Dr. Bosch. Instead, he was given only the police report of the incident, a document which apparently did not provide any direct insight into the petitioner’s mental state at the time of the incident. T. 98. Dr. Bosch’s only analysis of the defendant’s mental condition at the time of the crime — the only expert analysis which has ever been conducted on this central issue— took place at trial, on the witness stand when Mr. Haupt showed him the transcription. Preliminarily, Dr. Bosch indicated that, if the defendant had known what he was doing when he threw Tiffany off the bridge and if the defendant believed that the conduct was “right,” in these circumstances, Mr. Blake would be considered insane. T. 101. After reading the transcript, Dr. Bosch readily acknowledged that Mr. Blake appeared to be “upset.” Dr. Bosch further stated that according to Mr. Blake’s statement, he was indeed doing “something right . . . something that he have to do it (sic).” T. 103. Finally, addressing the question of Mr. Blake’s sanity, the following occurred: Dr. Bosch: There is, as far as I’m concerned there is to me after reading this, I just can’t tell you that was insane or was sane. Nobody can tell you from reading this dissertation that this particular man got to be sane or got to be insane. Just after reading this . .. Mr. Haupt: Would you suspect insanity? Mr. Ryan (the prosecutor): Your Honor, if it pleases the court, that’s sort of probing in the dark, isn’t it? Dr. Bosch: Like I said, I suspect that this is a man who is up&et and who may have an emotional problem or who may have some real problem. But, when you’re talking about insanity, that’s different from an emotional problem or being upset. T. 104. Examination of Dr. Bosch continued for some time. This examination revealed several other points of particular interest. Dr. Bosch admitted that, even though he had previously testified that the defendant had begun hallucinating only after being admitted to the hospital, his own psychiatric report indicated that Mr. Blake had stated that the problem had existed since petitioner sustained a head injury about six years before. Dr. Bosch indicated that such a condition, if established, might well signify brain damage. Furthermore, Dr. Bosch stated that hallucinations often compelled their victims to act. Mr. Haupt also showed Dr. Bosch a note sent by Mr. Blake to the investigating police detective in the case prior to an attempted suicide at the jail, which failed apparently only because the rope Mr. Blake had fashioned broke. This note substantially repeated petitioner’s story that Tiffany was waiting for him on “the other side,” while declaring that the time had come for him to join her. T. 114. Again, this was apparently Dr. Bosch’s first and only examination of the note. But, he did affirm that a bona fide suicide attempt would indicate that Mr. Blake believe his hallucinations. T. 117. Dr. Bosch acknowledged that such a belief would be symptomatic of genuine insanity, rather than mere emotional upset. T. 118. Dr. Bosch’s testimony also occasioned this colloquy concerning how and why his opinions had been so late in coming and based on such limited information, even relative to that which was in the hands of the prosecution: Mr. Ryan: Your question was that he was not asked to do that (determine sanity at the time of the incident). His answer was he was asked to do it, but he could not test that. Mr. Haupt: Well, he had no material. Mr. Ryan: Well, that may be true. Mr. Haupt: I have the court order to ask for that question. The Court: You didn’t send him any material, did you? Mr. Haupt: Well, Judge, I didn’t even have it (the transcription). I didn’t know this was here until yesterday. The Court: All right, well, he’s seen that now. Mr. Haupt: That’s why I wanted him to look at it and to read it. Mr. Ryan: You still can’t use an opinion. The Court: Well, he can’t say one way or the other about his opinion. He says he was upset. T. 110. Dr. Bosch’s testimony concluded without change in the basic points already outlined: (1) Petitioner did not appear to be insane in the doctor’s view when examined; (2) Petitioner had not discussed the incident so as to permit formulation of an opinion regarding his prior sanity; and (3) brief perusal of materials first supplied at trial did not permit any firm conclusion; but, (4) these statements, if sincere, were sufficient to establish that the petitioner was in fact insane at the time of the incident. No other expert testimony was received on the question of petitioner’s mental condition though there was an indication from the officer who first met Mr. Blake after the incident that petitioner appeared to be “reasonably sane.” T. 82. Several other points were developed through Mr. Haupt’s testimony at this Court’s evidentiary hearing. Mr. Haupt indicated that at the time of petitioner’s trial, a court-appointed attorney was not permitted funds for appointment of a private psychiatrist to examine his client. Mr. Haupt testified that he personally sought such authority from the trial judge in private conversation, but was told that only a state-employed psychiatrist would be provided and, further, that formal motion for private examination would be both unwelcome and unavailing. Mr. Haupt also testified that the financial circumstances of Mr. Blake’s family were too limited for him to ask for their assistance and that his personal experience with local physicians had convinced him that no useful testimony or examination could be obtained without payment. Thus, he made no effort to obtain the assistance of a private psychiatric expert. With respect to Dr. Bosch, Mr. Haupt made several criticisms. Mr. Haupt stated and the trial record confirms that Dr. Bosch received his initial medical training in Cuba, though it also appears that he had completed substantial training in the United States and been properly certified to practice psychiatry in this country. T. 87. Mr. Haupt also alleged that Dr. Bosch had serious difficulty in comprehending questions on the witness stand, which had hampered cross-examination and perhaps the examination of Mr. Blake as well. Counsel further stated that he considered Dr. Bosch biased for the prosecution because of his position as an employee of the state and a consultant to the Department of Offender Rehabilitation. Mr. Haupt stated that he believed a private physician at least would have provided “a little bit more in depth psychiatric examination” which would have been useful to the defense at both stages of trial. The circumstances surrounding Dr. Bosch and his testimony present the Court with numerous issues. Certain of petitioner’s allegations seem clearly unsupported by the record. Quotations from Dr. Bosch’s testimony have already suggested that his command of the English language is not perfect. Other passages might easily be found to confirm this impression. However, the Court finds no indication that his understanding was so deficient as to prevent effective cross-examination. Nor was any evidence presented to support the view that Dr. Bosch was unable to converse with the petitioner effectively. Similarly, no competent evidence was presented which would establish actual prosecutorial bias on the doctor’s part, as opposed to a mere appearance or possibility of such attitudes. The Court concludes that Dr. Bosch’s personal characteristics and professional connections might reasonably have led Mr. Haupt to select another expert to examine petitioner had the choice been afforded. However, the Court does not find evidence sufficient to support a determination that fair and adequate expert opinion could not be obtained from Dr. Bosch. Similarly, this Court does not believe that a procedure for examination of indigent defendants at public facilities is necessarily so prejudicial to the defendant’s rights as to fail constitutional scrutiny. Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978). Nor does the Court believe that an indigent defendant is entitled to repeated psychiatric examination after substantial competent evidence has already been obtained. United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953); McGarty v. O’Brien, 188 F.2d 151 (1st Cir. 1951). Obviously, such a holding would allow defendants to engage in endless searches for the “right” diagnosis with considerable expense to the public and only dubious contribution to the legitimate ends of justice. However, in the present case, this Court does not find only objection to a particular psychiatrist or to use of publicly employed psychiatrists per se. Similarly, petitioner does not advance any demand for multiple opinions in the face of already abundant evidence. Here, it appears that no expert opinion at all was received on the central issue of the petitioner’s mental state at the time of the alleged crime. It further appears that almost no lay opinion on this critical issue was received. To be sure, this extraordinary situation may be attributed in some part to the defendant’s memory lapse. Moreover, this lapse might even be ascribed to a conscious effort to avoid diagnosis. T. 181. Nonetheless, Dr. Bosch testified that Mr. Blake was suffering from genuine mental problems at the time of the interviews and, that these problems included loss of memory and concentration. In such circumstances, the Court cannot easily conclude that Mr. Blake’s memory lapse was intentional. Moreover, it is obvious that the state made little or no effort to supply Dr. Bosch and apparently Mr. Haupt as well with such information as the defendant had already voluntarily provided. The state’s failure to produce the transcript of November 15, 1975 was hardly cured by events at trial. Careful analysis of the defendant’s statement would surely require more than a single reading. Yet this one reading was apparently the only expert analysis of the petitioner’s obviously quite bizarre account of the incident that has ever occurred. The Court finds such analysis wholly inadequate, especially where there is little or no indication that serious efforts were made to obtain petitioner’s own first-hand statement after the initial interview had failed. Given petitioner’s willingness to discuss the incident on many other occasions, there is no obvious basis for believing that such efforts would have been futile. The Court finds that, in this case, reasonable efforts were not made to examine the petitioner with respect to his sanity at the time of the alleged crime. The Court further concludes that, even were it impossible to interview the petitioner directly with respect to the incident, reasonable efforts were not made to provide Dr. Bosch with alternative means for consideration of the petitioner’s condition. Consistent with this determination, the Court must also conclude that Mr. Haupt was not provided with adequate expert assistance in the preparation of his case. Apparently, he was afforded no professional opinion on the question of Mr. Blake’s sanity at the time of the incident until Dr. Bosch’s comments were received on the witness stand at trial. At this point, with the presentation of evidence more than half complete and the theory of his defense already outlined for the jury, it was obviously too late for any significant benefit. The exact parameters of an indigent defendant’s constitutional right to expert assistance in the preparation of his defense have not yet been fully developed. Hoback v. Alabama, 607 F.2d 680 (5th Cir. 1980). “The right to counsel is an expanding concept in a developing jurisprudence in the sense that new are being brought within its scope as they are reached factually. Hintz v. Beto, 379 F.2d 937, 943 (5th Cir. 1967). However, the courts have “long recognized a particularly critical interrelation between expert psychiatric assistance and minimally effective representation of counsel.” United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir. 1974). Thus, in Bush v. McCollum, 344 F.2d 672 (5th Cir. 1965), the court upheld habeas corpus relief where a defendant had been sentenced to life imprisonment without benefit of psychiatric testimony. The court thus approved the following language: In order for Bush in the instant case to have the effective aid of counsel, it was necessary for his counsel to have the assistance of a qualified psychiatrist and a trial, without expert evidence as to sanity, which found him sane and resulted in a life sentence is so lacking in fairness as to be a denial of liberty without due process of law, contrary to the Fourteenth Amendment. 231 F.Supp. 560, 565 (N.D.Tex.1964). Bush makes clear that the requirement of expert assistance is not met by hasty, inadequate examination any more than the requirement of representation by counsel can be met by placing a warm body at the defense table. In Bush, the defendant was in fact briefly examined by a qualified psychiatrist on two occasions. Nonetheless, the court found that testimony based on these interviews was “not sufficient to permit the jury to form a meaningful judgment as to whether Bush was sane. . .. ” 231 F.Supp. 564. Moreover, in Bush, the court based its determination that the examination was inadequate upon the opinion of the petitioner’s expert witness. In the present case, the inadequacy of the examination, and the impossibility of forming a proper professional opinion were directly admitted by the state’s witness and the only expert who has ever testified on defendant’s mental condition. Certainly, there can be no doubt that Dr. Bosch’s contacts with the petitioner fell far short of the minimal requirement announced in Bush that the “examination conducted by the psychiatrists must be, of a character they deem sufficient for the purpose of determining the facts required.” 231 F.Supp. 564, quoting Williams v. United States, 250 F.2d 19 (D.C.App.1957). This Court is not prepared to conclude, based on the present record, that responsibility for failure to provide complete psychiatric assistance lies solely with the trial court or the prosecution. I am by no means convinced that, if Mr. Haupt had brought the lack of psychiatric information to the attention of the Court prior to trial, arrangements would not have been made for additional examination. Nor is this Court prepared to conclude that Mr. Haupt made all reasonable efforts to provide Dr. Bosch with materials concerning the petitioner which may have been in his possession. However, I do not find it necessary here to precisely delineate the roles of the various actors in this unfortunate chain of events. The significant point is not what caused this situation but the situation itself. Whatever the source of the circumstances I discuss here, it is apparent that the denial of expert psychiatric assistance was “effectively a suppression of evidence violating the fundamental right of due process of law.” United States v. Pate, 345 F.2d 691, 695 (7th Cir. 1965). Furthermore, it is apparent that adequate time for preparation was not afforded to counsel for the petitioner. “Time for preparation, where mental competency is in question and there is a fair factual basis as here for the question would at least include a reasonable time within which to have a defendant examined and for preparation of such defense as might be based on the facts developed by the examination.” Hintz v. Beto, 379 F.2d 937, 941 (5th Cir. 1967). Furthermore, this consideration is due even where the report finds the defendant sane. Id. In Hintz, time was found inadequate when the defense obtained a report on the morning of trial. Here, the only expert analysis which was received came during trial, and, at that, provided no firm conclusion or careful discussion. Finally, the Court must consider whether prejudice to the petitioner resulted from the absence of expert assistance in the preparation and conduct of his defense. As was indicated above, such a showing has not always been required with respect to ineffective assistance of counsel. Moreover, the present facts do not necessarily appear to fall within the narrow exception to this rule where defense counsel failed to investigate leads favorable to his client. Davis v. State of Alabama, 596 F.2d 1214 (5th Cir. 1980). While Mr. Haupt may indeed have failed to protect Mr. Blake’s interests in adequate examination with proper zealousness, this case does not involve any mere isolated action or inaction by the defense counsel. Mr. Blake’s trial was in all its essentials a sanity proceeding with the subject’s very life hanging in the balance. It seems to this Court difficult if not impossible to say what arguments, or theories, or defenses might have been developed with adequate expert assistance. Mr. Blake received the benefit of no expert help in the preparation of his defense and none in the testing of the prosecution’s case. These circumstances seem to the Court to amount to a situation where essentially no defense at all is presented and, hence, no showing of prejudice required. Hamilton v. State of Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961); Davis v. State of Alabama, supra. Alternatively, the Court finds that prejudice has been shown here where (1) sanity is clearly in issue; (2) statements are in evidence which if understood and accepted by the jury would appear to constitute a legal defense; and (3) no firm expert opinion on the import of these statements was received. Conclusion As I have already indicated, the exact dimensions of an indigent’s right to expert assistance have not yet been fully developed. A recent decision of the Fifth Circuit has suggested that this right may be substantially identical to the right of defendants to expert opinion and assistance pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Ho-back v. State of Alabama, 607 F.2d 680, 681, n.2 (5th Cir. 1979). Under Brady, [fundamental fairness is violated when a criminal defendant ... is denied the opportunity to have an expert of his own choosing ... examine a piece of critical evidence whose nature is subject to varying expert opinion ... The evidence must be both “critical” and “subject” to carrying (sic) expert opinion .. . ‘Critical evidence’ is material evidence of substantial probative fofce that “could induce a reasonable doubt in minds of enough jurors to avoid conviction.” Gary v. Rowley, 604 F.2d 382 (5th Cir. 1979), quoting from Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) and White v. Maggio, 556 F.2d 1352 (5th Cir. 1977). Obviously, Mr. Blake’s account of the incident would seem to readily meet these requirements. Thus, if this standard were to be applied, the failure of the Court to appoint “an expert of his own choosing” would in itself amount to a constitutional violation. However, in the present case, it is unnecessary to go nearly so far. Here, the Court need hold only that, in a capital case, a defendant whose sanity at the time of the alleged crime is fairly in question, has at a minimum the constitutional right to at least one psychiatric examination and opinion developed in a manner reasonably calculated to allow adequate review of relevant, available information, and at such a time as will permit counsel reasonable opportunity to utilize the analysis in preparation and conduct of the defense. I so hold. I hold further that these rights were violated in the present case in a manner and to a degree that requires reversal of both the conviction and sentence returned against the petitioner. I further conclude that retrial on the issue of sentence is independently required in the present case by counsel’s substantially total failure to prepare and present a defense at this stage of trial. Petitioner is therefore remanded to the Superior Court of Chatham County for retrial or release within 120 days. So Ordered. CV280-114 Before the Court is a petition for writ of habeas corpus for review of the judgment of the Superior Court of Wayne County, Georgia, and the conviction and sentence of death imposed upon the petitioner. Numerous arguments have been raised with respect to both the finding of guilt and imposition of sentence. For reasons developed below, the Court finds merit only in petitioner’s claim that certain defective charges at the sentencing phase may have denied the jury proper guidance in its deliberations. Petitioner’s sentence will therefore be vacated and his case remanded for further proceedings. Background Petitioner Christopher A. Burger was tried before a Superior Court jury in Jesup, Wayne County, Georgia, for the murder of Roger E. Honeycutt, a soldier who, like Mr. Burger, was stationed at Fort Stewart, Georgia. Trial was held on January 23-24, 1978, before the Honorable Robert L. Scoggin. Petitioner was found guilty, and, after a separate sentencing proceeding, the death penalty was imposed. The Supreme Court of Georgia affirmed the finding of guilt by an Order of September 5, 1978. However, the Court also concluded that jury charges with respect to the sentencing phase of the proceedings were defective, and accordingly, the case was remanded for retrial with respect to sentence only. Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978). A second trial limited to the question of sentence was held before Judge Scoggin on July 16, 1979, with the death penalty again imposed by the Court on July 19, 1979, pursuant to the second jury’s determination. On March 14, 1980, the Supreme Court of Georgia affirmed petitioner’s sentence based upon the view that one aggravating circumstance had been properly charged on and found by the jury. Two other aggravating circumstances were invalidated by the Court in light of certain defective charges by the trial judge. Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980). Thereafter, petitioner filed for writ of certiorari in the United States Supreme Court. Petition was denied on June 2,1980. Motion for reconsideration was similarly denied on August 11,1980. On September 16, 1980, the Superior Court of Wayne County, Georgia, set October 2, 1980, as the date of execution. On October 1, 1980, petition for writ of habeas corpus was filed in the Superior Court of Butts County, Georgia. This action was also dismissed on October 1, 1980. Application for certificate of probable cause to appeal and motion for stay of execution were denied by the Supreme Court of Georgia on October 1, 1980, as well. The present action was filed in this Court on October 2,1980. At that time the Court ordered a stay of execution to permit consideration of the various issues raised in the petition. Subsequently, the Court has entertained oral argument from the parties, first at a hearing conducted December 12, 1980, and more recently at another proceeding held on March 7, 1981. At that time, the Court received evidence relating particularly to claims of ineffective assistance of counsel. Certain written materials have also been received and examined by the Court. The results of this analysis are developed below. Facts Christopher Burger was indicted along with Thomas D. Stevens, another soldier at Fort Stewart, for the murder of Roger E. Honeycutt. Evidence developed at trial tended to show that, on September 4, 1977, Burger and Stevens were drinking at a club on post. After exhausting their resources, they decided to raise more money by robbing a taxicab. They then procured a butcher knife and a sharpening tool from the mess hall for use in the robbery and called a cab. They also spoke to a friend and fellow soldier James Botsford. Private Botsford had just arrived at the airport in Savannah after an emergency trip. Petitioner and Stevens agreed to come to the Savannah Airport and bring him back to the base. Shortly thereafter, at around 10:00 P.M., the victim Honeycutt, who was driving at night to supplement his military income, picked up petitioner and Stevens at Fort Stewart. During the trip to the airport, petitioner and Stevens accosted Private Honeycutt with their weapons, forced him to stop the cab, and took sixteen dollars from him. Honeycutt was then placed in the back seat of the taxi, and the trip resumed with petitioner driving. Petitioner and his confederate continued their search for money in the cab as they drove on to the airport. Stevens moved to the back seat of the vehicle. Private Honeycutt was then forced to disrobe while Stevens searched each article of clothing and then discarded it by throwing it out the window of the car. After Honeycutt had been completely disrobed and no additional money discovered, Stevens forced him to participate in acts of oral and anal sodomy. Subsequently, the victim was placed in the trunk of the cab, still nude, and with his hands tied behind his back. Petitioner and Stevens then continued to the airport, and picked up Private Botsford. During the drive back to Port Stewart, they explained what they had done to Botsford in some detail. When Botsford expressed incredulity, they confirmed their story by exchanging brief remarks with Private Honeycutt who could hear and be heard from within the trunk. After some debate, Bots-ford induced his friends to promise that Private Honeycutt would not be harmed, and, in turn, agreed not to notify the authorities. Later, Private Botsford was dropped off at Port Stewart. Petitioner and Stevens drove on to Jesup, and finally to a nearby “borrow pit” which was filled with water. After they had wiped their fingerprints from the car and removing a C.B. radio, Mr. Burger raised the trunk lid and asked Private Honeycutt if he was all right. Honeycutt stated that he was. After closing the trunk, Mr. Burger started the car and drove it into the pond, jumping out as it entered the water. The victim was still alive at this time. Thus the autopsy showed drowning as the cause of death. Petitioner and Stevens then returned to the army base. The next day they contacted Botsford and assured him that the victim had been released unharmed. Private Bots-ford in turn told them that he had not been to the police. However, on September 12, 1977, Botsford contacted the state patrol and authorities on post after he learned that a local taxi driver had been missing for several days. Shortly thereafter, petitioner and Stevens were picked up by military police. After briefly denying all knowledge of the crime, petitioner made a complete confession and described the incident in detail. He also took the authorities to the pit and pointed out where Private Honeycutt’s body could be found. This confession and Private Botsford’s testimony were primary sources of evidence in the subsequent trial. Mr. Burger did not testify. Issues Presented Petitioner has alleged approximately fifteen grounds for reversal of his conviction or sentence or both. Certain of these arguments are so plainly inapplicable to the present case as to demand no discussion here. Many points do however merit some review. First, with respect to the guilt-innocence phase of trial, the Court will consider petitioner’s claims of constitutional error based upon (1) use of petitioner’s confession which was allegedly obtained under circumstances which render it involuntary and, hence, inadmissible; (2) failure to properly advise petitioner of his Miranda right to appointed counsel which is also alleged to vitiate the confession; and, (3) certain language in the trial court’s charge which allegedly shifted the burden of proof with respect to criminal intent to the petitioner. The Court will next consider other claims of error which impact on both the guilt and sentencing phases of trial: (1) the introduction into evidence in all proceedings of allegedly inadmissible hearsay statements made by Stevens; and, (2) generally ineffective assistance of counsel as allegedly manifested in virtually all aspects of the preparation and conduct of petitioner’s defense. Finally, the Court will review two arguments which relate only to sentencing proceedings against Mr. Burger: (1) the alleged failure of the Georgia Supreme Court to apply a constitutional definition of one aggravating circumstance in its review of the death sentence; and (2) failure of the trial court to instruct fully on the remaining aggravating circumstances. Analysis (1) Mr. Burger contends first that his confession was obtained “through the use of psychological coercion, tricks and ploys. Petitioner was not mentally competent to understand his right against self-incrimination, nor was he competent to waive that right.” In support of these claims, petitioner relies inter alia upon evidence of his sub-normal intelligence, the length and conditions of interrogation, and petitioner’s alleged intoxication at the time of questioning. Petitioner also refers to certain defects in the Miranda warning given by Fort Stewart authorities, which will be considered separately. At trial, a hearing into the circumstances of petitioner’s confession was conducted out of the jury’s presence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963). At this Jackson v. Denno hearing, testimony was received from investigating officers of the Jesup Police Department and the Fort Stewart Criminal Investigation Division (CID), as well as from an expert employed by the defense to perform various psychological tests on Mr. Burger. The testimony of the various police officers indicated that petitioner was picked up by military authorities early in the evening of September 12th, after Private Botsford had gone to these authorities with his information. Questioning began at about 9:20 P.M. At 9:25 petitioner was read his Miranda rights and signed a waiver permitting the interview to continue without counsel. After initially denying any knowledge of the crime, Mr. Burger began detailing the entire incident to investigators. At about 11:10 P.M. he agreed to show the military police where the cab was, because he could not verbally pinpoint the location. At 11:25 P.M., Mr. Burger and military authorities left Fort Stewart to go to the pond. They reached this pit at 12:34 A.M., remained there about thirty minutes, and then returned to Fort Stewart, arriving back at the CID office around 1:54 A.M. The investigating officer then typed out a four-page confession, which required about an hour and a quarter. The confession was signed around 4:00 A.M., after petitioner had sworn to its accuracy. It thus appears that petitioner was in custody for perhaps nine hours before he signed the confession. It also appears that he was in contact with no one except law officers during this period. However, the uncontradicted testimony of these officers indicated that petitioner was “alert and coherent” at all times. T. 174. Furthermore, he appeared to understand his rights, but nonetheless preferred to proceed without an attorney. T. 170. There was no reason suggested for believing that he was under the influence of any drug. T. 175. Nor did any testimony suggest that “tricks or ploys” had been used to elicit the statement. Testimony from petitioner’s psychologist did not call these facts into serious question. This expert stated that Mr. Burger does have limited intellectual capacities. Test results indicated an I.Q. of 82 as well as some possible brain damage. However, it was pointed out that these limitations had not prevented petitioner from successfully completing two courses of military training and otherwise functioning adequately in daily life. The psychologist also testified that petitioner’s limitations were not so profound as to put him “beyond the concept of understanding right from wrong.” T. 250. Furthermore, the psychologist found no reason to believe that the confession had been improperly obtained, or indeed that “tricks and ploys” would have been needed to elicit the statement: I think he would enjoy the idea, frankly. This would be a great opportunity to display his psycho-pathological behavior. He’d probably shout in the wind as much as he could of all the things he might have done. T. 250. It appears then that Mr. Burger is a man of limited capacities. However, he was not incapable of normal functioning in his military role. Nor was he beyond understanding the nature and significance of his crime or his confession. It also appears that he was questioned at some length but not against his will or while under the influence of drugs or otherwise incompetent. Considering the “totality of these circumstances” the trial court found that the confession had not been improperly obtained. T. 268. It was thus submitted to the jury for a second determination, which was apparently also unfavorable to the defendant. The present petition suggests no basis for disturbing this determination, and this Court sees none. Therefore, Mr. Burger is entitled to no relief on this point. LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1972); Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). Second petitioner contends that his confession should have been excluded as having been obtained pursuant to an improper Miranda warning. This point was also argued at length in the trial court. See, e. g., T. 197-98. Here, as at trial, constitutional error is alleged to have developed out of the unusual circumstances of petitioner’s arrest. It is undisputed that petitioner received the standard Miranda warnings accorded all military suspects at the time of his first interrogation. This warning informs the suspect that he may have the services of a military attorney at no cost, or, if he so chooses, that he may retain private counsel at his own expense. It is similarly undisputed that, when petitioner was turned over to the Jesup police, he was given a standard civilian warning that a private attorney would be provided for him if he were indigent and so-requested. T. 200. Error is, however, claimed in that military police failed to inform petitioner of his right to free private counsel as soon as they became aware that the homicide might have been committed off-post and therefore, been subject to civilian jurisdiction. The adequacy of a Miranda warning must be viewed in light of the purpose it is intended to serve. There can be little doubt that this purpose is to provide persons in custody under suspicion with legal advice which might enable them to better know and protect their rights and interests. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1965). In the present case, petitioner was afforded access to the only counsel military authorities had power to provide. Similarly, petitioner was accorded the opportunity to obtain civilian counsel by civilian authorities. At no point was Mr. Burger qu