Full opinion text
MEMORANDUM AND OPINION BOWEN, District Judge. These three suits petition the Court for relief in the nature of habeas corpus. They were filed separately in forma pauperis under 28 U.S.C. § 2254. Each petitioner was convicted of murder and is now under sentence of death by electrocution; each petitioner challenges the constitutionality both of his conviction and of the sentence imposed. The three suits were not consolidated, but, because many issues raised were common to all three, they have been treated together at most phases of the litigation to conserve the time and resources of both the Court and of the parties. Consistent with this treatment, this memorandum will examine the three petitions in two stages; the common issues will be discussed together in one section, and the issues individual to each [>etition will be discussed separately in later sections. I A. Legal History William “Billy” Mitchell entered a guilty plea to the charge of murder on November 5, 1974, before a judge of the Superior Court of Worth County, Georgia. A presentence trial was held as required by Georgia law. Ga.Code Ann. §§ 27-2503, 27-2528, 27-2534.1. After imposition of the sentence of death, the conviction was affirmed on direct appeal to the Georgia Supreme Court. Mitchell v. The State, 234 Ga. 160, 214 S.E.2d 900 (1975) (Gunter, J., dissenting without opinion), cert. denied 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976). Petitioner then filed a petition for the writ of habeas corpus in the Superior Court of Tattnall County, Georgia. A hearing was held in January, 1977, after which Judge Paul E. Caswell denied the petition by order of April 6, 1977. This denial was affirmed in Mitchell v. Hopper, 239 Ga. 781, 239 S.E.2d 2 (1977), cert. denied, 435 U.S. 937, 98 S.Ct. 1513, 55 L.Ed.2d 534 (1978). Willie X. Ross was convicted of armed robbery,. kidnapping and murder after a jury trial in the Superior Court of Colquitt County, Georgia, on March 3, 1974. Sentences of life imprisonment, twenty years and death were imposed on June 26, 1974. The conviction and sentence were affirmed by the Georgia Supreme Court in Ross v. The State, 233 Ga. 361, 211 S.E.2d 356 (1974) (Gunter, J., dissenting without opinion), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1217 (1976). After a hearing in the Superior Court of Tattnall County, the petitioner’s suit for state habeas corpus relief was denied by Judge Paul E. Caswell on March 22, 1977. This decision was affirmed in Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850 (1977), cert. denied, 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397 (1978). James Lee Spencer was convicted of murder, aggravated assault and escape after a jury trial in the Superior Court of Richmond County, Georgia, in January, 1975. Sentences of death for the murder and ten years running concurrently on the other two charges were imposed. The convictions and sentences were affirmed by the Georgia Supreme Court on appeal. Spencer v. The State, 236 Ga. 697, 224 S.E.2d 910 (1976) (Gunter J., dissenting without opinion), cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 302 (1976). An evidentiary hearing was held in the Superior Court of Tattnall County, Georgia, on Spencer’s petition for state habeas corpus relief. This was denied by order of Judge James E. Findley on August 18, 1978. This denial was affirmed in Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). Three hearings have been held before this Court. On January 26, 1981, a hearing was held in Savannah, Georgia, pursuant to notice to counsel and in accordance with 28 U.S.C. § 2254(d) to determine the necessity for an evidentiary hearing. This first hearing was confined to the issues common to all three petitions. See Part II, below. The Court heard argument on the sufficiency of the record made in the courts of Georgia, the sufficiency of their findings of fact and allowed the petitioners to make offers of proof relating to evidence they would present at an evidentiary hearing. At the conclusion of this hearing, the Court announced its ruling as to the issues upon which evidence would be received, and the scope of the evidence permitted. Evidence was taken at an evidentiary hearing the following day in accordance with this ruling. The third hearing was held in Augusta, Georgia, to determine the necessity under 28 U.S.C. § 2254(d) for an evidentiary hearing on the individual issues raised in the three petitions. See Parts IIIA, IIIB and IIIC, below. Consistent with the procedure of the first hearing, the Court heard argument from counsel on the sufficiency of the record and the findings of fact made by the Georgia courts to determine the necessity for an additional evidentiary hearing. The Court has concluded that no further hearings are mandated except as noted below. B. The Crimes The Court here recites the facts surrounding the crimes of which the petitioners were accused and convicted. This section is not meant to add gloss to a proceeding which could be perceived as a dry, antiseptic legal exercise. To the contrary, an atmosphere of calm is crucial to the proper function of our system for dispensing justice. However, the following descriptions are included to provide necessary.perspective about the business in which we are engaged. The ancient writ of habeas corpus ad subjiciendum serves the modern and noble purpose of providing a remedy for those whose conviction or incarceration was obtained outside the bounds of the law. Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837 (1963). The doctrine that no person may be illegally deprived of his liberty is a cornerstone of our legal system and of our society. However, during a proceeding to determine whether the letter of the law has been followed in a criminal proceeding, the issue of the actual guilt or innocence of the defendant can be obscured by the examination of the legalities involved. This Court is not commenting here on the propriety of this obfuscation. Rather the Court deems it important and appropriate to remember that the source of our due process guarantees is the principle that no innocent person should ever be deprived of his liberty. The legalities examined by the courts in habeas proceedings were formulated to achieve this goal to the extent it is humanly possible. The crimes for which these petitioners were convicted are not relevant to the existence vel non of constitutional infirmities in their trials and sentences. However, our criminal justice system works a delicate balance between the constitutionally protected liberty of the individual, and the interest of society as a whole in the efficient curtailment and punishment of crime. The following recitation will emphasize the gravity of this balance here, for while the very lives of the petitioners are at stake, society has been grievously wronged as well by individual acts of premeditated and brutal violence. William “Billy" Mitchell On Sunday morning, August 11, 1974, at 7:00, Mrs. James Carr and her fourteen-year-old son Christopher opened I.G.A. Store Number 13, a convenience grocery store in Worth County, Georgia. About fifteen minutes later, while the two were preparing the store for the business day, Mitchell entered the store. He walked over to the soft drink cooler, then returned to the check-out counter near the door. There he confronted Mrs. Carr and Christopher, and demanded “all the money.” This demand was repeated, and Mitchell produced a small pistol from his coat pocket, pointing it at Mrs. Carr from across the counter. She handed him about one hundred fifty dollars in bills from the cash register. Mitchell then demanded and received the money Mrs. Carr and her son had in their personal possession. Mitchell then ordered the two to go to the back of the store. They were marched into the storage area in the rear at gunpoint, walking through a meat room to a door leading to a cooler. Christopher was carried into the cooler by Mitchell. He stepped back out, saying to Mrs. Carr, “I’ve never had a white bitch before,” and shoved her towards the adjoining bathroom. When Mrs. Carr cried out, “Oh my God, no!” the petitioner ordered her into the cooler, and pushed her inside with her son. Both got on the floor, Christopher sitting and his mother squatting. Facing her son (with Mitchell behind her) Mrs. Carr heard a shot and saw a red hole appear on her son’s chest. Then, she felt a jolt and a burning sensation in her head. Mrs. Carr testified that she heard the petitioner leave the cooler, then return in a few minutes. She had slumped to the floor, and saw only the legs of the assailant. Christopher, now lying on the floor of the cooler, was shot again in the back of the head, and Mrs. Carr was shot three more times in the arms and back. The petitioner left the cooler again. Mrs. Carr was able to get up and go to a telephone which was by the door of the cooler. She called the police and an ambulance. In the front of the store, two boys had entered to find Mitchell behind the counter. They were ordered to the rear. Mitchell pointed his gun at one and pulled the trigger several times, but it did not fire, apparently out of ammunition. Mitchell took about six dollars from one of the boys and marched them into the cooler with Mrs. Carr and Christopher. He again attempted to shoot one of the boys, and the gun again did not fire. Leaving his four prisoners, Mitchell closed the door to the cooler and left the store. The police arrived shortly thereafter, and Mitchell was taken into custody a few hours later. Christopher was dead. Willie X. Ross August 23, 1973, Willie X. Ross, Freddie Lee King, Rudy Turner and the petitioner’s brother, Theodore Ross, planned to rob the Clover Farms Highway Grocery in Moultrie, Georgia. Pursuant to this plan, they drove to Moultrie from Madison, Florida, to stake out the store. When the store closed for the evening, the four followed the man who had closed the store to a nearby house in which J. R. Stanford and his family lived. They then returned to Madison. The following evening, the four men returned to the Stanford home wearing stocking masks. Entering the house, they held the Stanford family at gunpoint while they ransacked their home. They collected money) jewelry and Mr. Stanford’s .32 caliber pistol, then demanded the grocery store money. They were told that it was in the possession of Robert Lee, who lived nearby, and that Wendell Norman, Stanford’s son-in-law and Lee’s partner in the grocery store, would be returning to the Stanford home with his wife later that night. The four robbers waited, and when Norman and his wife arrived, Norman was overpowered and ordered to take Theodore Ross and King to the Lee house to get the money. Ross and King left with Norman and Stanford’s fourteen-year-old stepdaughter, leaving the petitioner Ross and Turner with the Stanford family. Theodore Ross, King, Norman and the girl arrived at the Lee residence, entered the home and proceeded to Lee’s bedroom. Norman switched on the light, Lee awakened, and Norman informed him that Ross and King were there to get the money from the store. Lee reached for his pistol and began firing into the hallway at Ross and King. One of these two returned fire and grabbed one of the two small Lee boys present, threatening to kill the boy if Lee did not stop firing and hand over the money. Lee complied, and Norman handed King the cash box, which contained approximately $20,000.00 in cash and checks. When Ross and King fled on foot, Norman telephoned the police to inform them of the robbery and that the Stanford family was being held at gunpoint at their home. Moultrie Police Lieutenant Tommie Meredith gallantly responded to the call, arriving at the Stanford home within a few minutes, with Officer Frank Lynch close behind in a separate car. Meredith entered the kitchen door armed with a shotgun, and confronted Turner, who was armed with a pistol, crouching at the opposite end of the dining room table. Ross, armed with Stanford’s pistol, was positioned in front of a refrigerator located in the dining room. Turner said to Meredith, “I’ve got them right here,” indicating the Stanford family and motioning for one of them to come to him. As words were exchanged between Meredith and Turner, the Stanfords fled to a bedroom. Both Stanford and Lynch testified that two shotgun rounds were fired, followed by a single pistol shot. The petitioner and Turner ran from the house and through the back yard, Lynch firing at them as they fled. Lynch found Meredith’s body on the kitchen floor, shot through the chest at point blank range. Turner’s pistol was found fully loaded in the back yard, and the cartridge in the firing chamber bore an indentation indicating it had misfired. The .32 caliber pistol, which had been in Ross’ possession, was found next to the back-yard fence, one round having been fired. It was determined that Meredith had been killed with this weapon. Shortly after this incident, the appellant told his brother Theodore, who testified for the state, that he had shot a policeman and that Turner’s gun had misfired. Petitioner also told another witness, Bobby Gamble, that he believed he had killed a policeman. Petitioner was apprehended several months later and indicted for the kidnapping of Wendell Norman, the armed robbery of Robert Lee, and for the murder of Lieutenant Tommie Meredith. James Lee Spencer On October 31, 1974, Chief Deputy Sheriff L. 0. Beazley of Richmond County was assigned to transport a prisoner, the petitioner, from the Richmond County Jail to the Georgia State Prison in Reidsville, Georgia. He picked up Spencer at the jail at 9:45 in the morning and placed him in the back seat of the transfer vehicle. A heavy wire mesh separated the front seat of the car from the back seat. Then Beazley picked up his father-in-law, Lett Williams, who was to accompany Beazley on the trip to Reidsville and back. Beazley had left Augusta and was driving toward Millen, Georgia. The radio dispatcher reported, “Chief, the passenger you’ve got is supposed to have a gun.” At that point, the petitioner shot Beazley three times. Beazley stopped the car and was shot in the head as he attempted to unlatch the door. This shot blinded him. Beazley managed to get the passenger door open, pushed his father-in-law out and crawled out himself. Leslie Padgett was traveling on the Millen Highway about 10:15 when he saw a car stopped in the right lane. An elderly man stood at the rear of the automobile calling for help. As Padgett was getting his pistol, the old man, Mr. Williams, ran over to the car and put his head inside the window. One shot was fired by the petitioner. It hit Williams in the head from point blank range. Petitioner then kicked out a window of the rear compartment and climbed out of the car. Fortunately, he was apprehended by a state patrolman as he attempted to flee. Mr. Williams died of the head wound he sustained. Deputy Beazley lives, but is permanently blind in his left eye. There was evidence that Spencer had planned his escape several days in advance. Thomas Yancey, a former prisoner at the Richmond County Jail, testified that he and Spencer had discussed escaping. The day Spencer was to be transferred to Reidsville, Yancey saw him strap a pistol to his leg, then cover it with his sock. Yancey also testified that as Spencer passed him on the way out that morning, he said, “This here is the day.” J. B. Dykes of the Richmond County Sheriff’s Department testified that the petitioner had a homemade handcuff key concealed in his mouth on the day of the escape attempt. The key was recovered when the petitioner spit it into an officer’s hand at an Augusta hospital. II. THE COMMON ISSUES These three petitions each present seven issues which are substantially identical. All, of course, claim constitutional deprivations which depend on the facts unique to each case. However, the facts pertinent to each alleged violation do not vary substantively among the three petitions, and the legal analysis by which they must be examined is identical. Accordingly, these issues have been treated together by the Court, and will be examined together here for purposes of economy. The issues are: (1) whether the death penalty is being imposed in an arbitrary and discriminatory matter in the State of Georgia; (2) whether the death penalty is being imposed pursuant to a pattern and practice of discrimination based upon race, sex and poverty; (3) whether the systematic exclusion for cause from the petitioners’ juries, at the guilt phase of their trials, of prospective jurors with conscientious or religious scruples against the death penalty resulted in juries which were not comprised from a representative cross-section of the community and which were biased against petitioners in resolving questions of guilt or innocence [Spencer and Ross only]; (4) whether the appellate sentencing review procedures followed by the Supreme Court of Georgia suffice to meet sixth and eighth amendment standards for review of capital cases; (5) whether electrocution as a means of capital punishment is unnecessarily cruel and torturous; (6) whether the failure by the state to give notice prior to trial of the aggravating circumstances necessary for imposition of the death penalty denied the petitioners’ due process of law; (7) whether the grand and petit juries placed upon the petitioners were unconstitutionally composed. Extensive findings of fact were made in the courts of Georgia on all the issues in these three cases, and after extensive hearings; the combined records fill an entire drawer of a legal-size filing cabinet. It has been the consistent stance of the respondent that no further evidence need be taken in these cases, that the record is sufficient to compel a determination on all the issues where the facts, rather than legal precedent, are controlling. The petitioners, of course, maintain otherwise. The Court heard argument from the parties in Savannah, Georgia, on January 26, 1981, on the applicability in these cases of the presumption of correctness created by 28 U.S.C. § 2254(d). See footnote 4, above. A review of the record and the various findings of fact made by the Georgia Supreme Court and the superior courts hearing the state post-conviction petitions reveals that these findings are, on their face, entitled to this presumption of correctness; the record is extensive, none of the proscriptions enumerated in section 2254(d)(1) through (7) appear to have been violated, and the findings are fairly supported by the evidence. In light of this preliminary appearance, the Court deemed it the responsibility of the petitioners to make an offer of proof which could override this presumption before a full evidentiary hearing would be necessitated. The petitioners argued that the hearings below were not full and fair hearings because they were not allowed to fully develop the pertinent facts. They contend that this occurred because the state denied motions made in all three cases for money to be allotted to the use of the indigent petitioners for the gathering and presentation of evidence on the first two issues enumerated above. Two factors require this argument to fail. The first is that the record actually contains facts sufficient to uphold a determination on the issues, with the exceptions noted below. This is so especially in light of precedent which controls most of the issues. The United States Court of Appeals for the Fifth Circuit in Spenkelink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), rehearing denied, 441 U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 (1979) considered issues substantially identical to most of those raised here. As discussed below, the holding in that case severely limits the type of evidence which would be relevant here. Secondly, the petitioners come prepared to present the same or similar evidence they claimed they could not present at the state level, and do this despite the denial of a similar request for money in this Court. Petitioners were represented at the state habeas corpus hearings by the same counsel who represent them here. While the issue need not be reviewed in detail in light of the conclusions mandated by the Spenkelink case, the Court will note that the fact of petitioner’s ability to present evidence here when faced with the same purported lack of funds they faced during state proceedings casts the failure to present that evidence in the courts of Georgia in the light of strategic default. It is the Court’s determination that the refusal by the state of Georgia to provide funds for the use of the petitioners in their state suits did not affect the adequacy of their hearings. A. Arbitrary and discriminatory imposition of the death penalty The petitioners allege that the death penalty in Georgia is being imposed in an arbitrary and discriminatory fashion. They assert that the Georgia death penalty statutes designed to eliminate eapriciousness in the imposition of capital punishment do not, in fact, accomplish this goal. In support of this allegation, the petitioners offered evidence which they asserted would show that the death penalty is disproportionately imposed when considering factors such as the race of the defendant, the race of the victim and the locality of the crime. This evidence was offered in the form of statistical studies and proposed testimony of various social scientists to demonstrate discrimination as well as the ineffectiveness of the present statutes in correctly channeling the discretion of prosecutors, juries and judges. The respondent rebuts on two levels. Construed as a selective prosecution claim, he asserts that the petitioners have not satisfied the two-prong test that (1) others similarly situated have not been prosecuted, or (2) that the government’s prosecution of the petitioners is selectively invidious or based upon impermissible considerations such as race, religion or the exercise of some constitutional right. See United States v. Hayes, 589 F.2d 811, 819 (5th Cir. 1979), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979). Second, the respondent asserts that the claim is disposed of by the Spenkelink decision. The Court disagrees with the respondent’s characterization of the petitioners’ claim as one of selective prosecution. The allegation is broader than that, asserting not that the jjetitioners were individually singled out on the basis of race, sex or poverty, but rather that the statutory system employed by the Georgia courts to impose the death penalty does not control the discretion of prosecutors, judges and juries sufficiently to prevent the capricious and arbitrary imposition of this sanction disproportionately upon groups of which the petitioners are members. However, the Court agrees that the argument is controlled by judicial precedent. Georgia’s death penalty statutes were framed as they now exist in response to the United States Supreme Court’s judgment in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Concern was expressed there that the penalty could be imposed by courts and juries in Georgia without significant guidance, and therefore capriciously and arbitrarily. See Furman v. Georgia, 408 U.S. at 313, 92 S.Ct. at 2764 (White, J., concurring). The present statutory scheme was designed to remove caprice from the system by affording guidance to the sentencing body, whether jury or judge. This system was given prima facie approval by the Supreme Court in Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976). Petitioners assert, as did the petitioner in Gregg v. Georgia, 428 U.S. at 198, 96 S.Ct. at 2936 that the new statutory scheme in Georgia only appears to have removed caprice from the system, that in fact the arbitrariness and discrimination condemned by Furman persist, and that the holding of Gregg creates only a rebuttable presumption that the revised statutes are constitutionally sound. The Court disagrees with this interpretation of Gregg. In that ease, the Supreme Court examined and rejected arguments raised here by the petitioners. Gregg specifically holds that the residue of discretion in the imposition of the death penalty necessarily left to prosecutors, juries and judges is properly channeled by the statutes so as to eliminate caprice. 428 U.S. at 199, 96 S.Ct. at 2937. Further, the Court held that the automatic judicial supervision and fact-finding role assigned to the Georgia Supreme Court by Ga.Code Ann. § 27-2537 provides the mechanism by which the application of the aggravating circumstances by juries necessary for imposition of a death sentence may be supervised and checked. 428 U.S. at 200-206, 96 S.Ct. at 2937—40. Gregg holds, in short, that the caprice and arbitrariness proscribed in Fur-man have been conclusively removed from capital cases under the revised statutes, and that defendants properly tried and sentenced under that statute have been visited no constitutional violation. 428 U.S. at 206-207, 96 S.Ct. at 2940-41. The United States Court of Appeals for the Fifth Circuit supports this interpretation in Spenkelink v. Wainwright, supra. Speaking of the Gregg decision and the other death penalty cases considered by the Supreme Court in the same term, the Fifth Circuit court opined: We understand these decisions to hold that capital punishment is not unconstitutional per se, and that a state, if it chooses, can punish murderers and seek to protect its citizenry by imposing the death penalty — so long as it does so through a statute with appropriate standards to guide discretion. If a state has such a properly drawn statute — and there can be no doubt that Florida has — which the state follows in determining which convicted defendants receive the death penalty and which receive life imprisonment, then the arbitrariness and capriciousness condemned in Furman have been conclusively removed. 582 F.2d at 605. There can be no doubt, similarly, that Georgia has such a properly drawn statute as well. Smith v. Balkcom, 660 F.2d 573, 584-86 (F. 5th Cir. 1981). The petitioners’ statistical evidence as proffered, and the evidence presented in the state courts of Georgia, do not override this finding. They would show that sentencing patterns under the new statute still reveal glaring disparities in the imposition of the death penalty based upon race, sex and poverty. This allegation may be true, and, if so, would be sad and distressing, but this allegation does not alone show any infirmity in a statute otherwise found to be acceptable under the Constitution. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Spenkelink, supra, 612-616. Of course, a petitioner may show specific acts of invidious discrimination which would invalidate a conviction and death sentence, Spenkelink, supra, 578 F.2d 614 n. 40, but the petitioners’ proffered evidence does not show this, nor are any acts of individual discrimination alleged by any of the three petitioners. Similarly, the petitioners could show that their convictions and sentences were imposed outside the limits set by Georgia law, that the statutes were not followed for some reason or that the courts were derelict in their duties. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Again, no petitioner alleges this, nor does such appear to be the case from the record in these suits. The Court must conclude that the first two issues have been effectively foreclosed to the petitioners by judicial decisions in Gregg v. Georgia, Spenkelink v. Wainwright, and Smith v. Balkcom. Similarly, the Court finds that the issue regarding an allegedly infirm system of appellate review of death cases is foreclosed by these decisions as well. B. The Witherspoon Issues Petitioners Ross and Spencer challenge the exclusion for cause of jurors who expressed opposition to the death penalty under the holding of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). That case states that a defendant’s sixth amendment right to an impartial jury is violated when the trial jury was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty, or expressed conscientious or religious scruples against its infliction. The challenge is on two fronts. The exclusion for cause of several jurors is directly challenged. Secondly, petitioners seek to expand the Witherspoon holding to proscribe as partial juries composed largely of those without conscientious or religious scruples against the death penalty. Petitioners cite their proffered evidence, scientific studies, which indicates that such juries are prosecution prone. Witherspoon bans the exclusion for cause of jurors who voice general objections to the death penalty, or conscientious or religious scruples against its infliction. 391 U.S. at 522, 88 S.Ct. at 1776. This ban does not prevent a state from excluding for cause: . . . [Tjhose who make unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. 391 U.S. at 522 n.21, 88 S.Ct. at 1776 n.21. The courts demand strict adherence to these guidelines; a juror may be properly excluded under Witherspoon only if his avowals show unequivocally that he is disqualified under at least one of the two tests. Granviel v. Estelle, 655 F.2d 673, 677-78 (5th Cir. 1981); Burns v. Estelle, 626 F.2d 396, 397-98 (5th Cir. 1980) (en banc). The Court is concerned here with the testimony of one prospective juror in the trial of Ross, and three in the trial of Spencer. Venireman Barker was questioned by the judge in Ross’ trial. The dialogue consisted of the following: THE COURT: Let me ask you this, Mr. Barker. If you were selected as a juror in this case, would you be guided by the law as given you in Charge by the Court as to the alternate penalties that may be assessed, should the defendant be found guilty, and consider all of those alternatives? MR. BARKER: I could not condemn anyone to death. I believe that God gives life and its a precious life and I don’t have the right to take it. THE COURT: The question was asked you earlier during the statutory voir dire questions, if you were conscientiously opposed to capital punishment. MR. BARKER: Yes. THE COURT: Would this opinion that you have as to capital punishment prevent you from assessing the death penalty regardless of what the evidence showed? MR. BARKER: I could not pass judgment and condemn him to death, no, sir. MR. COLE: We challenge the juror for cause. THE COURT: Are you stating to the court that regardless of what the evidence is in this case, what the evidence may show, that you still would refuse to impose the death penalty? MR. BARKER: Yes. (Ross Trial Tr., p. 57-58). This colloquy very clearly shows that the venireman would automatically vote against imposition of the death penalty regardless of what the evidence might have shown at trial. There was no constitutional error in excusing this juror for cause. See Burns v. Estelle, 626 F.2d at 398. Two veniremen at Spencer’s trial made their opposition to the death penalty similarly unambiguous. Mr. Harden was questioned as follows: Q. Yes sir. Now, let me ask the question again. Are you in any way opposed or are you conscientiously opposed to the infliction of the death penalty? A. Do I oppose it? Q. Yes sir. A. I do. Q. You’re opposed to the death penalty? A. I do. Q. Are you — is your opposition to the death penalty such that you don’t feel like you could vote to impose it under any circumstances? A. Do I feel that I would not oppose it? Q. That you would not vote to impose it, that you wouldn’t bring a death verdict under any circumstances? A. Oh, I wouldn’t — I wouldn’t vote that. Q. Regardless of how the evidence turned out, you wouldn’t vote the death penalty? A. No, I wouldn’t. (Spencer Trial Tr., p. 577-78). Juror Martin testified: Q. Are you opposed to capital punishment — conscientiously opposed to capital punishment? A. Yes sir. Q. Is your reservation about capital punishment such that you would not — it would keep you from making an impartial decision in this case as to the defendant’s guilt? A. (No response) Q. You could decide this case whether or not the defendant’s guilty ... A. If he was guilty. Q. ... regardless of what you believe in about capital punishment? A. No sir. Q. Your reservations about capital punishment are such that you could never vote to impose the death penalty, is that correct? A. Yes sir. (Spencer Trial Tr., p. 596). Both of these jurors expressed unambiguous opposition to the imposition of the death penalty, and their firm intention to vote against it regardless of what the evidence showed. They were properly excused under Wither-spoon. This same clear lack of ambiguity is not present in the statement of the third juror so excused in Spencer’s trial. Mr. Kinnard testified: Q. Are you conscientiously opposed to capital punishment? A. Yes. Q. Now, Mr. Kinnard, would your reservations about capital punishment prevent you from making an impartial decision as to the defendant’s guilt in this case? A. It’s quite possible. Q. Your reservations about capital punishment, then, are such that you would never vote to impose the death penalty, is that correct to say? A. I’ve never faced it, but I believe that would be true. Q. That you would not under any circumstances vote the death penalty? A. I believe so. Q. Are your reservations about capital punishment such that you would refuse to even consider its imposition in the case before you under any circumstances? A. Yes. (Spencer Trial Tr., p. 220-21). Mr. Kinnard’s statement leaves no doubt about his opposition to the death penalty. This opposition is not the test, however. The Court of Appeals for the Fifth Circuit has found a juror similarly opposed to the death penalty still to have been prematurely excused, not because her conscientious beliefs were in doubt, but because ambiguity remained as to how this would affect her deliberations as a juror. Burns v. Estelle, 626 F.2d 396 (5th Cir. 1980) (en banc); see also Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981). In Burns the colloquy was as follows: Q. [By the prosecutor] All right. Let me ask you this question, a sentence of life imprisonment or death is mandatory on conviction of a capital penalty case, you understand that? A. Yes, sir, I understand it. Q. All right. And this is a capital felony case. A. I don’t believe in it. Q. Ma’am? A. I do not believe in it. Q. Let me go into it then. You told me just then that you did not believe in death? A. That’s right. Q. All right. Then will the mandatory penalty of death or imprisonment for life affect your deliberation on any issue of fact, which what you just told me it will, in other words the mandatory penalty of death or imprisonment for life will affect the deliberations on any issue of fact in this case, is that correct? A. That’s right. MR. GREEN: All right. Judge, we ask this juror be excused. 626 F.2d at 397 n.2. The court there held that these expressions, strong though they were, did not go far enough to warrant the juror’s exclusion under the two-pronged test of Witherspoon. Mr. Kinnard’s expressions appear at first to be less strong than those of Mrs. Doss, the juror in Burns; where she answered affirmatively to initial inquiries, Mr. Kinnard indicates “It’s quite possible” and “I believe so.” However, the record leaves no doubt that both jurors harbor strong beliefs in opposition to the death penalty. The crucial question asks how these beliefs will affect their deliberations. Mrs. Doss affirmed only that her beliefs would affect her deliberations, not that they would prevent her from performing her duties. Mr. Kinnard was asked a different question. The query put to him was whether his beliefs were such that he would refuse to even consider the imposition of capital punishment under any circumstance. His answer was “yes.” The Court finds no ambiguity in this reply, and accordingly rules the exclusion of Mr. Kinnard proper under Witherspoon. The petitioners next assert that the exclusion for cause of jurors such as Mr. Kinnard results in a trial by a “death-qualified” and prosecution-prone jury in violation of the guarantee by the sixth and fourteenth amendments of an impartial panel. Examining the identical issue, the court in Spenkelink rejected the conclusion implicit in petitioner’s proffered evidence, that a panel so constituted is necessarily a partial one. Assuming, arguendo, the truth of the allegation of prosecution-proneness, that court said: That a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant. 578 F.2d at 594. The record in Spenkelink revealed that, other than a willingness to impose the death sentence if the evidence required it, no juror not excluded for cause expressed any partiality to either side, nor, significantly, any reluctance to acquit. The record here reveals the same. Noting that the state also enjoys the right to impartiality, the court went on to say: [impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. 578 F.2d at 596. The court concluded: The jury that emerges after excluding such veniremen, having been carefully examined to exclude also for cause those veniremen who are biased against the defendant, either as to guilt or as to punishment, is impartial. To call it prosecution-prone is to misunderstand the meaning of impartiality. Id. This Court has found the exhaustive examination of the issue, 578 F.2d at 593-96, to be persuasive, and has excluded the petitioner’s proffered evidence as a result. More importantly, the holding by the Spenkelink court is binding authority. Accord, Smith v. Balkcom, 660 F.2d at 575-585. The allegation of these petitioners must fail under these rulings. C. Infliction of the Death Penalty by Electrocution The next issue common to all three petitions is the contention that the means of imposition of the death sentence in Georgia is cruel and unusual within the meaning of the prohibition of the Eighth Amendment. Georgia law provides that those who receive the death penalty shall be executed by electrocution. Ga.Code Ann. § 27-2512. In support of this position they have made an offer to produce evidence showing that this method of execution is unnecessarily tortuous and painful, especially when compared to presently available alternatives such as lethal injection. This issue was examined and rejected by the Court in Spenkelink, relying on the decision of the Supreme Court in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Spenkelink, 578 F.2d at 616. The holdings of the Spenkelink court, rejecting the contention identical to the one at bar, requires the same conclusion here. The allegation is without merit. D. Notice of Aggravating Circumstances The petitioners allege that they were not given timely notice of the specific aggravating circumstances that were used to justify the capital sentence each received under Georgia Code Annotated § 27-2534.1 because these aggravating circumstances were not alleged in their indictments. Briefly, there is no Georgia law, statutory or decisional, which requires the indictment to list the aggravating circumstances upon which a defendant accused of murder can be later sentenced to death. The crime these three petitioners were accused of was murder. The aggravation listed in section 27-2534.1 determines whether a murder, once proved, is the sort for which death may be exacted; the statutory aggravating circumstances are not elements of the crime. This allegation is without merit. Spenkelink, 578 F.2d at 609-10; Blankenship v. State, 247 Ga. 590, 594, 277 S.E.2d 505 (1981); Bowden v. Zant, 244 Ga. 260, 263-64, 260 S.E.2d 465 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1068, 62 L.Ed.2d 788 (1980); Smith v. State, 236 Ga. 12, 20, 222 S.E.2d 308 (1976), cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976); Eberheart v. State, 232 Ga. 247, 253-54, 206 S.E.2d 12 (1974), remanded for resentencing, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977). E. The Jury Challenges All three petitioners raise issues concerning the allegedly unconstitutional composition of grand or petit juries. These are treated as common issues because they are resolved by the same legal analysis. This analysis begins with the Georgia law concerning challenges to grand and petit juries. The Georgia Code relating to habeas corpus petitions states, in pertinent part: ... Except for objections relating to the composition of grand or petit jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently. The right to object to the composition of the grand or travers jury will be deemed waived under this section, unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has otherwise become final. Ga.Code Ann. § 50-127(1). This waiver will be imposed unless the challenges are timely. A challenge to an array must be made when the array is put upon the defendant, Ga.Code Ann. §§ 59-802, 803; Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974); Farley v. State, 155 Ga.App. 188, 270 S.E.2d 361 (1980), and a challenge to a grand jury must be made even before indictment. Durham v. State, 239 Ga. 697, 238 S.E.2d 334, 338 (1977). See Stewart v. Richetts, 451 F.Supp. 911, 914 (M.D.Ga. 1978). If the state has a valid rule of criminal procedure which requires the defendant to object to a grand or petit jury at a certain time, failure to make this objection may preclude consideration of the claim in federal court. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Under these Supreme Court holdings, a petitioner must demonstrate cause for a procedural default and actual prejudice from the error before a federal court may grant relief under 28 U.S.C. § 2254. This Court’s responsibility, then, must first be to determine whether a default has occurred. The record in these cases here makes it abundantly clear that such a default must be overcome by all three petitioners. Billy Mitchell did not voice a challenge to his grand jury until his state habeas corpus proceeding. Under Georgia Code Annotated § 50-127(1), this constitutes a waiver. Additionally, he entered a plea of guilty to the charge of murder. This plea constitutes a permanent waiver of constitutional infirmities which precede the entry of the plea unless it is shown the plea was not voluntarily and intelligently entered. Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235 (1973). This waiver may be overcome by showing he pleaded guilty on advice not “within the range of competence demanded of attorneys in criminal cases.” Id. The Court’s conclusion in a later section of this opinion that he was afforded effective assistance during this phase precludes Mitchell from escaping this consequence of his guilty plea. Petitioner Ross did not raise the issue until his state habeas corpus hearing. Section 50-127(1) imposes a waiver on him as well. James Spencer’s challenge is subjected to lengthy and detailed examination by the Georgia Supreme Court, Spencer v. Hopper, 243 Ga. 532 at 533-37, 255 S.E.2d 1, after which that Court found that Spencer’s challenge was not timely filed, was not supported by the presentation of evidence, was waived before the trial began and was not revived on appeal. 243 Ga. at 536-37, 255 S.E.2d 1. This is a finding of three independent procedural defaults: untimely filing of the challenge, waiver of the challenge by failure to support it with evidence and by a positive relinquishment of it by Spencer’s counsel, and waiver by failure to argue the challenge on direct appeal. Only the second conclusion warrants discussion here; the first and third are well supported by the evidence and are binding on this Court. Immediately prior to the beginning of trial, Spencer was asked by the prosecutor if he insisted upon his jury challenge and a motion for change of venue. Spencer’s attorney, John Ruffin, replied that he was under the impression that the motions had been disposed of, and the trial judge agreed. The prosecutor then asked, “May I inquire as to whether or not the accused insists on them?”. Speaking for his client, Mr. Ruffin replied, “Not while I’m under the impression that they have been disposed of.” (Tr. p. 608) The Georgia courts have interpreted Mr. Ruffin’s remark (and Spencer’s silence after it) as an expression of satisfaction with the jury which included several blacks. 243 Ga. 536, 536 n.4, 255 S.E.2d 1. While Mr. Ruffin’s rather cryptic statement might be read to imply a waiver, the statement seems to express, when taken at face value, the simple idea that counsel was not going to belabor a motion he felt had been ruled on. Mr. Ruffin’s testimony before this Court reinforces this point. The Georgia Supreme Court examined two pages of transcript missing from this Court’s copy, and concluded that, indeed, the motions had been ruled on. 243 Ga. at 536 n.3, 255 S.E.2d 1. To insist on a motion which had already been overruled would be futile, and Mr. Ruffin’s statement apparently reflects that logic. Given the ambiguity of Mr. Ruffin’s remark, this Court, however, does not reject the Georgia court’s conclusion of waiver. The Court instead finds that it is unnecessary to resolve the question one way or another. Lack of a waiver would not salvage Spencer’s jury challenge. The facts remain that the challenge was filed late and was abandoned on appeal. These independent procedural defaults require the application to Spencer of the requirements imposed in Francis v. Henderson, supra. All three petitioners must therefore demonstrate cause and actual prejudice resulting from the error they allege. The Court’s determination that none of them can demonstrate sufficient cause precludes examination of any prejudice. On January 27, 1981, this Court held an evidentiary hearing to allow the petitioners to show, among other things, the cause and prejudice required by Wainwright v. Sykes and Francis v. Henderson. No evidence was introduced to show the cause of any of the various defaults involved. Relying on the record, counsel argued on behalf of Ross and Mitchell that trial counsel’s inadvertence or ignorance is a sufficient showing of cause. Tyler v. Phelps, 622 F.2d 172, 177 (5th Cir. 1980) is cited in support of this proposition. This assertion must fail, even ignoring the fact that, at least for Ross, this inadvertence or ignorance was never demonstrated outside the assertions of his counsel. Tyler v. Phelps would support the proposition for which it is cited, except that the case has been reheard en banc. This strips the opinion of any precedential value. U. S. v. Michael, 645 F.2d 252, 254 n.2 (5th Cir. 1981) (en banc), cert. denied, - U.S. -, 102 S.Ct. 489, 70 L.Ed.2d 257 (1981). After rehearing, the Court declined to follow the panel holding that a trial counsel’s ignorance or inadvertence is sufficient “cause” under Wainwright v. Sykes. Tyler v. Phelps, 643 F.2d 1095, 1101 (5th Cir. 1981) (en banc). While the en banc opinion does not hold the opposite, a later case does. In Washington v. Estelle, 648 F.2d 276 (5th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 402, 70 L.Ed.2d 216 (1980), the Court of Appeals squarely holds that an allegation of ineffective assistance of counsel does not alone suffice to demonstrate “cause” under Sykes. 648 F.2d at 278. The logic - behind this holding is clearly stated. Quoting an earlier holding, the Washington court said: [Petitioner has not demonstrated cause for his failing to make a timely challenge. His only allegation in this regard is that his trial attorney provided ineffective assistance of counsel in failing to so object. This assertion must be rejected, however, for, if accepted, it would effectively eliminate any requirement of showing cause at all. If a petitioner could not demonstrate any legitimate cause, he would only have to raise the spectre of ineffective assistance of counsel to get his challenge heard. This we refuse to sanction. 648 F.2d at 278, quoting Lumpkin v. Ricketts, 551 F.2d 680, 683 (5th Cir. 1977), cert. denied 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). This logic is even more compelling when applied to an inadvertent default which falls short of ineffective assistance. Without even the necessity of showing his counsel’s assistance was not constitutionally sufficient, a petitioner could cure any default by merely showing his attorney overlooked a particular point, or forgot to file a particular motion, or simply neglected to pursue a particular strategy because he was too busy. The destructive impact of a holding sanctioning this ability is obvious. This Court accordingly reads Washington to repudiate mere inadvertence as well as mere ineffective assistance of counsel as sufficient “cause” to overcome a default under Wainwright v. Sykes. Supposing then that Ross had shown that his default was the result of inadvertence, his petition must still fail on this point. Similarly, Mitchell’s attorney has testified that he actively considered a jury challenge and elected not to pursue one because in his opinion the jury system in Worth County, which had been recently revised, was constitutionally sound, and that a challenge to the grand jury would have been futile and unnecessary. (Habeas Tr. pp. 18-19; deposition of Clarence Miller, pp. 51-52). His election was an informed decision of trial strategy, deliberately made. This is not “cause” either, and may, in fact, be characterized as a deliberate bypass of an available state remedy under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See Tyler v. Phelps, 643 F.2d at 1101. Additionally, Mitchell’s jury challenge is defeated by the waiver effect of his guilty plea. Tollett v. Henderson, supra. Spencer has similarly made no showing of cause. His silence on the subject at the hearings before this Court requires reliance on the record for evidence of cause. The record offers no support for the petitioner in this regard. Spencer filed his challenges late. For cause he must rely on his right to represent himself and his ignorance of the law requiring timely challenges to juries. However, while he may have had the right to file pro se motions, he also had a court appointed attorney to use as a resource to advise him on the legal effect of these motions. That he declined to do so and effectuated a procedural default as a result is “inadvertence” in the sense discussed above. This Court will not regard it as sufficient cause. Additionally, the challenge, timely or not, was not pursued on appeal. In the absence of any proffered reason for this, the Court need not go so far as to label it a purposeful relinquishment of the issue, but certainly the petitioner’s silence on the issue is, at the least, a failure to uphold the burden placed on him by Wainwright v. Sykes. None of these petitioners have demonstrated cause sufficient under Wainwright v. Sykes to alleviate them of the procedural defaults incurred with regard to their jury challenges. An independent review of the evidence does not show that any of the three can do so. Such a showing is a prerequisite to this Court’s ability to examine the issue formerly abandoned. Failing this showing, there is no need to review the issue of whether actual prejudice has inured to the petitioners. No relief can be granted to any of the three on this issue. III. THE INDIVIDUAL ISSUES A. William “Billy” Mitchell This petitioner raises four remaining grounds which allegedly render his conviction unconstitutional. He asserts: (1) his court appointed attorney rendered ineffective assistance; 2) the insufficiency of justifications for capital punishment; 3) the imposition of the death penalty was inappropriate in his case; and 4) the improper admission into evidence at his sentencing hearing of coerced statements. 1) Ineffective Assistance of Counsel Mitchell alleges he was denied his right to counsel guaranteed by the Sixth and Fourteenth Amendments by ineffective assistance of his court appointed counsel at both the guilt and the sentencing phases of his trial. He alleges his counsel, Clarence Miller, failed adequately to investigate the facts of the case, did not obtain and review petitioner’s statements given to police, did not investigate or press legal defenses available to Mitchell, and did not present evidences or witnesses to show mitigating circumstances at Mitchell’s sentencing hearing. These allegations were the subject of a lengthy hearing in the Superior Court of Tattnall County, Georgia. Subsequent to that hearing, the Superior Court made detailed findings of fact: Petitioner’s trial attorney was appointed to represent Petitioner on August 12, 1974; the murder had been committed on August 11, 1974. (H.C.T. 11, 23). The attorney testified that the practice of criminal law comprised between one-fourth to one-third of his general practice. (H.C.T. 10). He had represented criminal defendants in over 100 cases, including 30 murder cases, in the seven years he had been a member of the Georgia bar. (H.C.T. 22). He estimated that he met with Petitioner on four to five occasions for rather lengthy interviews. (H.C.T. 21). He personally participated in the lineup identification of Petitioner, including selecting the other participants, shortly after Petitioner’s arrest. (H.C.T. 24). He interviewed the witnesses, particularly the officers involved in taking Petitioner’s statement. (H.C.T. 25). He was able to see the real evidence held by the State, including the pistols used in the murder. (H.C.T. 26). All evidence was readily accessible to him. (H.C.T. 26). This Court finds that Petitioner’s trial attorney had ample time to prepare to defend his client, that he did in fact fully investigate the facts surrounding the murder, that he had lengthy discussions with his client on at least four occasions, that he made an effort to effect a plea bargain with the district attorney, that he fully advised his client of the alternative courses of action available, and that he adequately assisted Petitioner in order to allow him to make an informed decision to plead guilty. Resp. Ex. 3, pp. 9-10. These findings are fairly supported by the record. They are, therefore, binding on this Court under 28 U.S.C. § 2254(d) unless Mitchell can “establish by convincing evidence that the factual determination by the state court was erroneous.” 28 U.S.C. § 2254(d). Mitchell has proffered no such evidence. He has filed depositions purporting to establish that Mr. Miller did not, as the state court found, actually interview all the possible witnesses in the case. The depositions do not, in fact, establish this fact, or even indicate it in a manner sufficient to warrant the substitution of a different version of facts four years after the first habeas corpus hearing and seven years after the crime. In this circuit the constitutional standard for effective assistance of counsel is not errorless counsel or counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Spivey v. Zant, 661 F.2d 464, 477 (5th Cir. 1981). This Court must inquire into the actual performance of counsel in conducting the defense, and a determination whether reasonably effective assistance was rendered must be based on the totality of the circumstances and the entire record. U. S. v. Gray, 565 F.2d 881, 887 (5th Cir. 1978), cert. denied, 435 U.S. 995, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). A review of the record evidence, Miller’s testimony at the Tattnall County hearing and his deposition, show, even independent of the superior court judge’s conclusions, that Miller rendered Mitchell assistance well within the parameters of the constitution. Even assuming the truth of Mitchell’s allegation that Miller did not interview all the witnesses (a conclusion which the record does not support), does not necessarily show ineffective assistance. Miller need only have investigated the case to the point where he was familiar with the facts and the state’s case. He appears without doubt to have done at least this much. Mitchell is silent on why his counsel should have done more. He shows no defense which might have been established and no other way in which his case was prejudiced. Absent some showing of prejudice, this claim even if true, cannot stand. See Davis v. Alabama, 596 F.2d 1214, 1221-23 (5th Cir. 1979), judgment vacated, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980). This discussion concerns the guilt/innocence phase of Mitchell’s trial. While the petition alleges ineffective assistance in the sentencing phase as well, the findings of the state court do not discuss the action of Miller during the sentencing hearing. It is for this Court, then, to make an independent finding regarding the assistance rendered during this last phase of Mitchell’s conviction. This will be accomplished in a later order. 2) Justification for Capital Punishment Mitchell alleges the theoretical justifications for capital punishment are groundless and irrational and that because the penalty fails to serve any rational or legitimate social interests, the harshness of the sentence makes it excessive. Imposition of a capital sentence, thus, would violate the Eighth Amendment prohibition of cruel and unusual punishment. In support of this proposition, the petition alleges that public sentiment is “not so strong as to require or justify use of the death penalty,” that executions do not have an identifiable deterrent effect, that executions induce violence, and that life sentences serve penalogical purposes better than death sentences. As noted above, several hearings have been held for the purpose of determining what evidence it would be necessary or unnecessary to hear in order to resolve the legal questions raised. No mention of the issue is made in the state court findings of fact or in the Georgia Supreme Court opinions in the case, either on direct appeal or on appeal from the denial of habeas corpus relief. No evidence was proffered in support of this allegation in this Court either. In fact, neither party even mentioned it. This default could well be interpreted as an abandonment of the issue, but it is not necessary to so rule. [The Courts] may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people. Gregg v. Georgia, 428 U.S. at 175, 96 S.Ct. at 2926 (Op