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TABLE OF CONTENTS I. FACTS PERTINENT TO THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS A. Background 1113 B. Counsel's Pretrial Preparation 1116 C. The Trial 1120 D. Sentencing Phase of the Trial 1125 E. Post Trial Matters 1126 1. The Michael Pitts/Jimmy Fields/Tommy Willoughby Testimony 1126 2. The Ramsey-Patterson Testimony 1127 F. Habeas Proceedings H83 II. FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO THE INEFFECTIVE ASSISTANCE CLAIMS A. Pretrial Investigation and Preparation 1134 1. Interviews with Family Members U35 2. Interviews with Police and Other State Witnesses 1137 3. The Search for Witnesses? 1137 4. Discovery 1138 5. Photographs of House’s Bruises 1138 6. Miscellaneous 1141 B. The Effect of the Atkinses’ Deficient Pretrial Investigation on House's Conviction 1141 C. Trial 1144 D. The Effect of the Atkinses' Failings on House’s Death Sentence 1145 E. The Atkinses’ Failure to File a Motion for a New Trial Based on the Ramsey/Patterson Testimony 1146 III. OTHER CLAIMS ASSERTED BY HOUSE A. Voluntariness of the Confession 1148 B. The Alleged Guilt Prone Jury 1150 C. Exclusion of 18 to 21 Year Olds from the Jury Pool 1150 IV. SUMMARY H51 ORINDA D. EVANS, District Judge. I. FACTS PERTINENT TO THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS Because House claims that his trial counsel were ineffective in many respects before, during and after trial, a lengthy statement of the facts is essential. A. Background At 1:00 a.m. on April 15, 1973, the dead bodies of Johnny Ray Smith and Robbie Dunn, seven-year old boys, were found in a wooded area off DeFoor Avenue in Atlanta. The discovery followed a search which began when one of the boys’ fathers had ascertained they were gone at about 3:00 p.m. on April 14. (Tr. 110). The police had been called at 6:00 p.m. (Tr. 110). Detective C.E. Landrum and Sergeant Richard L. Fitzgerald of the Atlanta Police Departmeñt were present when the bodies were discovered. On the morning of April 15, the police picked up Jack House, who lived a couple of blocks from the wooded area, for questioning. House was picked up at approximately 11:30 a.m. at his mother-in-law’s home in Stoekbridge, Georgia, by Sergeant Fitzgerald and Detective C.W. Smegal. They told House they wanted to question him about his whereabouts during the time when a crime had been committed in his neighborhood. According to Sergeant Fitzgerald, House responded he would be more than happy to cooperate, although he knew nothing. (Tr. 286). After the group arrived at the station, House was advised of his rights and at 12:55 p.m. he signed a waiver of rights form indicating he did not want a lawyer. House participated in a lineup. (Tr. 216). Thereafter House was taken to an interrogation room in the Homicide Office where he was questioned. The questioning began at around 2:30 or 3:00 p.m. and was conducted by Detective D.S. McCoy, who handles investigation of major sex crimes. (Tr. 152-156). Sergeant Fitzgerald was present also. Additionally, House and others testified that during the period of the interrogation, Detective Landrum, Officer D.V. Lee, and possibly other officers, entered and exited the room a number of times. Neither the trial transcript nor evidence taken at House’s habeas hearings clearly shows at what point he indicated he wanted to confess. At some point photographs were taken. At about 4:00 p.m. blood samples were taken from House at Grady Hospital. (Tr. 359; February 7, 1983 habeas Tr. 50). At about 5:00 p.m. fingernail scrapings were taken by medical personnel at the police department. (Tr. 359). At about 4:30 House’s clothes were turned over to crime lab personnel so they could be examined for trace evidence (e.g., for hair or fibers matching those of the victims) (Tr. 358-360), and so that a blood spot which appeared between the left hip pocket and waistband of his trousers could be analyzed. (Tr. 445-446, 366, 371). In any event, at 5:55 p.m. House signed a written confession. According to Detectives Smegal and McCoy, who were present at that time, House dictated the confession to a female secretary who typed it up for his signature. (Tr. 135-136). Specifically, Detective Smegal testified: Q Let me show you what has been marked as State’s Exhibit Number 25. Can you now identify that? A This is the statement that Jack Carlton House dictated to our secretary in the presence of Detective McCoy and myself. Q Did the secretary, female assistant there actually typed that out? A Yes, sir, she did. Q Who gave her the information to put into that statement? A Jack Carlton House. (Tr. 135-136). The text of House’s confession, in its entirety, is as follows: Fulton County Atlanta, Georgia April 15, 1973 1750 Hrs, Sunday 5:50 PM STATEMENT OF: Jack Carlton House, WM, 25, 1764 DeFoors Ferry Road, NW, Phone: None I went to the Liquor Store around Noon on Saturday, April 14, 1973; the Liquor Store on Collier Road, and bought a half-pint of Karloff Vodka, costing $1.60. After buying this I had about fifty cents left in my pocket. I went back down Clairmont St. towards DeFoor Avenue; then I cut across some Apartment Yard located on Collier Road. Then I was walking down Clairmont and these two little boys come up and asked me if I was drunk. They were on their bicycles. I had fallen down and then I got up and just kept walking. Then I went up to the Little Store at DeFoor and Mantissa to pay James ... Camel who is the owner of the Store for a pack of cigarettes that I thought I had got from him the day before without paying, but as I got to the Store I remembered that I owed Mr. Bass up at the other store on DeFoor Avenue. Then I went across the street; which is DeFoor and into the woods. The little boys were behind me and they were carrying on but I was not paying much attention to them. After I got across the street I went into the woods where the little boys followed me. I had with me a coke bottle which I had poured what was left from the half-pint that I had bought. I then sat down and finished what I had in the Coke Bottle. At this time the boys had followed me down into the woods and they were still picking at me. I told them to go on and leave me alone but they wouldn’t. So I reached up and grabbed one of them by the neck and got up and grabbed the other (I’m not sure how I grabbed him). They were hollering and screaming. I told them to quit hollering and made them take their clothes off. I then made them bend over; holding both of them. Then I screwed one of them in the ass-hole and then screwed the other. I can’t remember if I had a sexual climax in one or both of them, and they kept . .. hollering. Then I choked them to death. Then I took the bodies up to the Railroad Tracks by carrying one on each shoulder like a sack of flour. After getting up close to the Railroad Tracks I threw the bodies down, and I then ran out of the woods by the Dump and out Davis Circle. I then ran home. After I got home I went to bed. I got up a few minutes later and sat around awhile, and then my Mother-in-law, Vada Myers, came along and we drank some there at the house and then we went down to my Mother-in-law’s house at Stockbridge, Georgia. And then this morning I got up and the Detectives came to the house and got me and brought me back to Atlanta. I was wearing green pants and a blue shirt with white stripes and a black felt hat with a Gold Band around it. This statement is given freely and voluntarily, and I have been advised by the Detectives that anything I say may be used against me; that I have a right to remain silent; that I may have an Attorney present during questioning, and that if I can not afford an Attorney that one would be appointed for me. After being advised of these Constitutional Rights the Detectives asked me if I fully understood them, and I told them that I did, and I then freely and voluntarily signed a Waiver of Counsel and gave this statement. I have read this statement and it is true to the best of my knowledge. /s/ Jack Carlton House Jack Carlton House, WM, 25 WITNESSED: /s/ C. W. Smegal /s/ D S McCoy_ Sergeant Fitzgerald did not witness House sign the confession. He had gone off duty at 4:30 or 5:00 p.m. (Tr. 211, 216; ef. Tr. 135, 155, 255). After House had signed the confession, Detectives McCoy and Smegal and Sergeant D.V. Lee took House in an automobile to his neighborhood. They went to his home for the purpose of executing a search warrant and also picked up some extra clothes and shoes. (Tr. 337). According to Detective Smegal, they asked House to show them the scene of the crime. He stated House then directed them along DeFoor Avenue to the point where his statement indicated he had entered the woods and at that point asked the officers to stop the car. (Tr. 338). Detective Smegal then testified in response to the prosecutor’s questions as follows: * ** * * * * A .... He then — we got out of the car and he directed us through the woods from here through to a little path that leads off into the woods and directed us to this point here (indicating) and then came over and directed us here (indicating) and said, “This is where I put their clothes.” Q All right. Who was leading and who was following and exactly how was this done? A All right. We were with him and letting him walk down the trail ahead of us. Q All right. When he indicated where the clothes were found did he point out a general area or exactly what did he do if you recall? A No, he walked over to the area and he said, “This is where I put the clothes.” Q What, if anything, was there where he pointed? A I didn’t work the scene but that is where the clothes were, some of the underwear was— MR. ATKINS: Your Honor, if he didn’t work the scene I object to all of this testimony except what the man told him. The — he contends that he took him over there and told him something but now he is up there testifying that this was where they found so and so even though he didn’t work the scene and I object to all of that as being hearsay. MR. HAYES: I won’t insist on that, Your Honor. Q (By Mr. Hayes) I am referring to the time you went there with him, was there anything physically in the area where he pointed? A There was a pine tree, a tree limb that was lying over the area near where he said this is where he had put the clothes. Q Did he walk right up to that spot? A Yes, sir, he walked right up to the spot and said, “This is where I put the clothes.” Q All right. Where did you go from there? A We then asked him what he was talking about. He said in his statement that he had carried the bodies from there and we asked him to show us where he carried them to and he then directed us down this trail to a point here (indicating) and said, “Go over to the right there,” and we went over to the right and he stopped here and said, “This is where I put the bodies.” Q All right, sir. This line going here, what is that? A It’s a trail through the woods. Q All right. Does that trail end here at this No. 14 or does it— A No, sir, the trail continues, this was just woods, you couldn’t distinguish it, make a distinction between it and any of the other woods along in here. He just stopped at this point and he said, “It’s off to the right, right over there,” and he walked over to this point and said, “this is where I put them.” Q Did anybody indicate to him where to turn or anything? A No, he indicated all of this. He walked directly to the place where the clothes were found and to the place where the bodies were found. Q All right, sir. Was there any hesitating as he walked through the woods there? A No, sir, he walked directly to each of the two places. (Tr. 338-341). B. Counsel’s Pretrial Preparation On Thursday, April 19, 1973, House was visited at the city jail by Mrs. Dorothy D. Atkins, an attorney who had been hired by House’s mother to represent him. (Tr. 195, 228). House told her he had not killed the boys. (November 16, 1982 habeas Tr. 51). He told her he had been beaten by the police until he signed some papers. (Tr. 195-196). Dorothy Atkins testified at trial that House showed her a “red place” on his ear and on his face during that first meeting which he contended the police had inflicted. (Tr. 527). Apparently House told Mrs. Atkins very little about the events of April 14, the date on which the crimes were committed. In response to a question on that subject during one of the habeas hearings, Mrs. Atkins said: A I talked to him about where he was and what he was doing, and he stated that he was drinking on Saturday, that he did not know anything else, and that on Sunday he went out of town with his wife. Q Did he tell you at that time that on the Saturday in question when the crimes were committed that he was in the wooded area? A No he didn’t. He didn’t tell me. Q What exactly did he tell you about his activities on that Saturday? A He said that he was in the area, the entire area of where he was living, and then he was a little bit vague as to what — he stated that he had been drinking. He stated this very definitely, and that he was in the area around the neighborhood on Saturday. Q Well, did you all go over the details of what happened on that day from the time he got up onward? A No Ma’am. Q Well what else did you talk about that related to his case? A That was about the main thing we talked about, about his drinking on Saturday, and he was a little vague about in the area he said around the house, and around the neighborhood, and that he went out of town, and that he was brought back into the jail on Decatur Street, and that he was beaten, and that was the main thing. He showed me his bruises. (November 16, 1982 habeas Tr. 52-53). Jack House did not tell his counsel about the spot on his pants or that the police had taken his clothes for lab analysis (February 7, 1983 habeas Tr. 129), although he knew the police suspected the spot was a blood spot. (Tr. 446). Following their initial meeting, Mrs. Atkins waived the committal hearing and House was transferred to the Fulton County Jail on the same day, April 19. (Tr. 527). On April 20 or possibly April 21, Benjamin S. Atkins, law partner and husband of Dorothy Atkins, visited House at Fulton County Jail. (Tr. 529; November 16, 1982 habeas Tr. 24). Ben Atkins testified that the facial bruises his wife had seen on the preceding day were gone (Tr. 531; May 28, 1980 habeas Tr. 86-87); however, it had been his experience that bruises disappear rather quickly. (Tr. 531). However, Atkins testified at the trial that he viewed a round spot on House’s chest “where he had been punched with something.” (Tr. 199-200). Ben Atkins further testified that at his request, House “pulled down his breeches, I had him pull down his breeches and show me right in here (indicating) bruised places on his legs and up to his groin. There were several, I didn’t count them, but there were several blue bruised spots there.” (Tr. 199-200). Ben Atkins did not take photographs of House’s alleged bruises. He later explained to the jury at trial that he had thought about it but “... I decided against taking a picture of it for the simple reason that I didn’t want to bring his private organs which would have been involved, a picture of all that into court, and I assumed that a jury would take my word that he was bruised and from somewhere in this neighborhood (indicating) up.” (Tr. 530). Dorothy Atkins, Ben Atkins and Jack House have all testified they have no clear recollection of their further meetings prior to trial. House testified there were, at the most, three or four meetings including the initial meeting. (November 16,1982 habeas Tr. 29). He testified he did remember .talking to Ben Atkins a couple of days before the trial. (November 16, 1982 habeas Tr. 33). Dorothy Atkins testified she believed she did not see House again between their initial meeting and the trial. (November 6, 1982 habeas Tr. 56). Ben Atkins said he thought he saw House a total of one or two times prior to trial. (January 14, 1983 habeas Tr. 13). Although the matter of what information House gave the Atkinses is of critical importance to House’s claim that their pretrial investigation was deficient, it is virtually impossible to determine on the record before the Court what further information, if any, House gave the Atkinses concerning the events of April 14, 1973 beyond the vague information he gave Dorothy Atkins\ on April 19. This is primarily a function of the substantial time lapse between the trial and the habeas hearings. Ben and Dorothy Atkins discussed House’s case. They have testified they believed he did not kill the boys. This belief was stated to be based on their acceptance of House’s story and their feeling that it would be physically impossible for one drunk man to physically control, sodomize and kill two seven-year old boys. Also, they said they felt the crimes could only have been committed by a homosexual. Mrs. Atkins discussed House’s case with his family, including his wife, but according to Mrs. Atkins: A Well I talked to his family mainly because he had no further information that we could gather, and I talked with his family to see what information I could get, and ask them and they cooperated to the best of their ability, but there was seemingly a lack of full communication in getting proof of his activities and what happened. Maybe because of the drinking problem. I do not know, but we could not get or ended up not getting any witnesses other than the family on his behalf. Q Did you talk to Mrs. Judy House about what Mr. House’s activities had been on the Saturday when the crimes were committed? A I did, but she stated she was not with him. Q Was she able to provide you with any information? A About Saturday, no, not that I remember. I remember she said she asked him to go with her on Sunday. (November 16, 1982 Habeas Tr. 56-57). The Atkinses did not consult a medical expert prior to the trial in order to determine whether or not an inebriated man could physically control, sodomize and kill two seven-year old boys. They did not visit the crime scene prior to the trial, or canvass House’s neighborhood for witnesses who might help in establishing his whereabouts on the afternoon of April 14. A two-count murder indictment was returned against House by a Fulton County Grand Jury on April 27,1973. The witnesses listed on the indictment included the fathers of the two victims, the county medical examiner who had performed the autopsies, a State Crime Lab technician, a Grady Hospital physician, a neighbor of House’s and Detectives Landrum, McCoy and Smegal of the Atlanta Police Department, as well as Sergeants Fitzgerald and Lee. Although the Atkinses had a copy of the indictment, they did not interview any of the witnesses listed on it prior to the trial. Had the Atkinses chosen to interview the crime lab witnesses, they would have learned that both the blood spot on House’s trousers and the blood of Robbie Dunn were type A, positive for M antigen of the M-N series, but that House’s blood was type O. Although Ben Atkins has testified that he did not act as counsel for House until the day of trial, the Superior Court records show that he entered an appearance of record as House’s counsel on May 4, 1973. In 1973 in Georgia only so-called “Brady” material, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was discoverable by right. Formal discovery motions were unknown. (May 30,1980 habeas Tr. 428). The prosecutor had no absolute obligation to give the Atkinses a copy of House’s confession or tell them about the lab test results. However, the prosecutor, Thomas W. Hayes, testified that due to the particular gravity of this case, he decided to give a copy of the confession, plus the blood test results, to Ben Atkins. (February 7, 1983 habeas Tr. 8-9). He recalls meeting with Ben Atkins and giving him a copy of the confession, plus at least telling Atkins about the match between the blood spot and one of the victims’ blood types. (February 7,1983 habeas Tr. 9-10). Ben Atkins has testified somewhat equivocally that he does not recall this with certainty, although he does not deny it either. (May 29, 1980 habeas Tr. 10-11; 34-35; 71-73). Hayes’ testimony is credited. The Court infers that this meeting took place on or after June 28, 1973, however. Ben Atkins was never asked at the habeas hearings whether he confronted Jack House with information that the blood spot matched the blood of one of the victims to see if House could provide a possible explanation for the source of the blood spot. Presumably, if he were asked he would state he cannot remember. At the same time, Jack House testified at a habeas hearing that he did not recall the blood spot being mentioned until trial. (November 16, 1982 habeas Tr. 35). Dorothy Atkins convincingly stated she did not know about the blood spot prior to trial (November 16,1982 habeas Tr. 65), which must mean she did not inform Jack House about it. This state of the evidence makes a finding on the critical. issue of whether the Atkinses told Jack House about the blood spot prior to trial difficult. Clearly, they had a duty to tell him. But did they? Ben Atkins met with Jack House shortly before the trial, apparently after he had received information from the prosecutor about the blood spot match. This would have been a logical time for Atkins to report the blood spot information to House. House’s testimony that he didn’t recall hearing about the spot until trial was not particularly convincing. On the other hand, there is no evidence which tends to prove that Atkins in fact did tell House about the blood spot. Given this state of affairs, the Court elects to make no finding of fact on this issue. However, it will assume, without deciding, for the balance of this Order that the Atkinses did not tell Jack House about the results of the blood spot tests prior to trial. House has not claimed that he suggested an explanation to the Atkinses before trial as to the origin of the blood spot. His position appears to be that he had no reason to suggest a possible explanation because he did not think the spot on his pants was blood. On June 28, 1973, Ben Atkins filed on House’s behalf a Motion to Suppress Confession, contending his confession was the product of police brutality and coercion. This motion was heard out of the presence of the jury near the beginning of House’s trial in the Superior Court of Fulton County on July 9, 1973. The Court heard testimony from Sergeant Fitzgerald and Detective McCoy. They described the interrogation and flatly denied having abused or coerced House in any way. House took the stand and testified that Sergeant Fitzgerald and Detective Landrum had beaten, kicked, and slapped him repeatedly during the interrogation. (Tr. 173-181). Dorothy Atkins testified that House indeed had reported to her that he had been beaten by the officers (Tr. 195), though she did not state she had seen any bruises. Ben Atkins testified that he had seen several bruises in House’s groin area, and a “round spot” on House’s chest. (Tr. 200). Detective Smegal also testified at the Jackson v. Denno hearing. He described the manner in which he had advised House of his constitutional rights, including his right to have an attorney and to remain silent. He said House verbally indicated he understood his rights and that he did not have any questions about them. Detective Smegal further testified that House then stated he wanted to talk to the officers without having an attorney present and that House then signed a Waiver of Rights form (State’s Exhibit No. 24; copy included in Appendix). Detective Smegal described House’s demeanor and appearance at the time the waiver was signed. He stated that he was not present during House’s interrogation, but that he subsequently heard House dictate his oral confession to a secretary. Smegal further confirmed that he had witnessed House sign the confession. House admitted dictating part of the confession, but contended the incriminating part regarding what happened after he entered the woods was not dictated by him. (Tr. 186-188). He stated he signed the confession out of fear. Judy House took the witness stand and testified initially that her husband had been drinking “a little” when the police had picked him up on April 15. However, in response to a further question from defense counsel, she stated he had had a good bit to drink before he was picked up. (Tr. 193). During Jack House’s Jackson v. Denno testimony, he had given the following testimony relative to his mental state: Q Then the officers are telling the truth when they say you weren’t drinking anything that they know of? A No, I was half drunk, but my mind was clear. Q Well— A I mean, in my own physical fitness, I was half drunk but I knew what I was mostly doing. (Tr. 169). House claimed he had asked to see a lawyer before he signed the confession. (Tr. 169). After hearing the foregoing evidence, Judge Sam Phillips McKenzie ruled that the confession was freely and voluntarily given. (Tr. 254). At the time the trial opened, the Atkinses determined that Ben Atkins would assume the lead role. C. The Trial The evidence presented to the jury at the trial beginning on July 9, 1973, unfolded as follows: Thomas H. Reid, Jr., who lived in an apartment complex near the corner of Collier and DeFoor Avenue, testified that he saw a suspicious looking individual wearing a dark hat lolling about in the area at mid-afternoon on April 14. He placed a call to the police, although there apparently was no response. He saw the individual, who was staggering, turn the corner and start down DeFoor Avenue. (Tr. 95-102). John Allen Dunn, father of one of the victims, testified he was in his front yard on Claremont Street that afternoon and at around 2:30 saw an individual staggering down the street going toward Mantissa Street. He stated his son Robbie and Robbie’s friend, Johnny Ray Smith, started to run out in the street “to play with him or something, and I pulled my belt off and made them get back in the yard.” (Tr. 104). A few minutes later, after the man had gone down the street, the two boys got on their bicycles and rode in the direction in which the man had gone. According to Mr. Dunn, the individual was wearing a black western style hat with some type of band on it. (Tr. 106-107). Next, Theron C. England testified. He stated he lived near the corner of Mantissa Street and DeFoor Avenue. He stated that at approximately 3:00 p.m. on April 14, he saw a man wearing a black hat with a fairly wide brim cross DeFoor Avenue and enter the wooded area directly across from his house. Specifically, he said .... I saw this guy go across the street and then the little Dunn boy along with another little boy, which at the time I did not know his name, came across the street about twenty feet behind the guy with bicycles. (Tr. 111-113). Mr. England further testified that he heard one of the boys say, “Let’s leave our bicycles here, we can’t keep up if we ride them down through the woods.... ” (Tr. 114). He stated then he saw the children enter the woods in the same direction as the individual in question. T.J. Whitfield, who lived at 1140 Davis Circle, N.W., testified that at approximately 4:00 p.m. on April 14, he observed a man walking unsteadily down Davis Street. He testified this individual had come from the west on Davis Street and was walking east (see State’s Exhibit 22, included in Appendix). He stated the individual then went up Davis Place toward Davis Circle. He was wearing a black hat. (Tr. 122-125). The Jack House residence was located at the corner of Davis Circle and DeFoor Avenue. James T. Smith, father of Johnny Ray Smith, described his search for his son on April 14 after he learned he was missing. Officer R.M. Dale of the Atlanta Police Department testified about being in the wooded area with him when the childrens’ clothing and bodies were discovered. (Tr. 255-258). Sergeant Richard L. Fitzgerald then testified about being called to the scene at 1:00 a.m. along with Detective C.E. Landrum (Tr. 260-263) and about his subsequent investigation. He described for the jury how House was advised of his rights at the police station and that House was then turned over to Detective McCoy for interrogation. He stated he was present and that numerous police officers were in and out of the room during the interrogation. (Tr. 292-293). He denied mistreating House in any way. He stated he had turned House’s clothes over to Kelly Fite of the State Crime Lab. Fitzgerald took the position in response to questions from the prosecutor that House’s interrogation had taken place in what he described as the homicide “squad room,” which apparently was a room near the public access areas on the detective floor. In response to a question from the prosecutor, he testified as follows: Q Is the squad room the normal place for interrogations? A It’s the only place we have to interrogate an individual. (Tr. 300). Detective Smegal was called next and stated he advised House of his rights at the time he arrived at the police station. He said he had watched House sign the waiver of rights. (Tr. 304). He said House appeared coherent and able to understand his rights. (Tr. 306). Detective McCoy then took the stand and told the jury about conducting the interrogation of Jack House. He denied having made any promises to House, or having subjected him to any abuse. (Tr. 310). He said House ultimately told him that he had killed the two boys. (Tr. 311). He said after House had made these admissions, he had the oral statement reduced to writing (Tr. 312); he said House read the confession and signed it in his presence. (Tr. 312). Officer Marion M. McDonald, Jr. then testified about the preparation of State’s Exhibit No. 22, the chart of the scene of the crime and surrounding neighborhood. He also testified as to the manner in which he prepared State’s Exhibits Nos. 1 — 21, which are color photographs of the area portrayed on the chart showing the various position numbers marked on the chart. (Tr. 329-334). Detective Smegal was then recalled to the stand. He told the jury about taking House out to his neighborhood after the confession was signed and how House had led him, Detective McCoy and Sergeant Lee to the place where he had left the victims’ clothes and bodies. (Tr. 338-340). He also stated for the jury’s benefit the testimony he had previously given during the Jackson v. Denno hearing to the effect that House had verbally related his confession to a typist who typed it out as he gave it. (Tr. 342). Smegal’s statement that the typist was female, not male, was challenged by defense counsel on cross examination and Smegal replied he did not think he was mistaken in that regard. He pointed out that they only had one male typist, who did not work in homicide. (Tr. 346-347). The State introduced expert testimony showing that the blood spot found on House’s trousers positively was not his blood. However, the particular type of blood contained in the spot — Type A positive for M antigen in the M-N system — was the same type as that of one of the victims. Elizabeth Thomason, who works for the Georgia State Crime Laboratory, explained to the jury that this particular blood type combination is found in 12% of the population. Kelly Fite of the State Crime Lab testified that all examinations conducted, except for the blood tests, on the items turned over — the clothing and presumably the fingernail scrapings — had yielded negative results. (Tr. 362). He said he was present at Grady at 4:00 p.m. when blood was taken from House. He said he examined House’s hands and took fingernail scrapings at 5:00 p.m. in the interrogation room at the police department. (Tr. 358-359). He said House did not appear to be in any discomfort or pain. (Tr. 359). Next Robert Stivers, Medical Examiner for Fulton County was called for testimony regarding his autopsies of the victims’ bodies. He testified that the bodies were bruised and scratched. He described injuries consistent with asphyxiation by choking. (Tr. 374-379). In response to a hypothetical question from the prosecutor, he stated that he thought an adult male would possess sufficient physical strength to handle two children of the size of the victims. He pointed out that the victims weighed about 45 pounds each and that children of seven years of age are of low muscle strength. (Tr. 384). He stated that the injuries he found on the Dunn boy were consistent with forcible sodomy. (Tr. 384). On cross-examination, Ben Atkins questioned Dr. Stivers concerning the effect of alcohol on male sexual competency. Dr. Stivers’ response was basically that the level of competency depends upon the level of drunkenness. He stated that the degree of drunkenness associated with a staggering gait is not necessarily that degree which would foreclose the ability to maintain an erection and commit sodomy (Tr. 386-391), but that there is a point where an entire range of volitional activity — including running, grasping, and volitional sexual activity — is foreclosed. (Tr. 390, 395). Dr. Stivers further volunteered testimony that “... at this age children are like small animals, they tend to fall to the ground and hide rather than run.” (Tr. 395). The prosecutor read House’s confession to the jury and the State rested. Ben Atkins called as his first witness House’s sister Nancy Jones. She testified House had lived in his neighborhood all his life, was married, and had three children. (Tr. 408-410). She admitted on cross that House drank a lot. (Tr. 414). Next, House’s wife Judy House was called. She testified that she had been shopping on Saturday the 14th of April but returned at 4:00 p.m. and found her husband asleep at home. (Tr. 421). She also testified that on either Saturday or Sunday morning, she and her husband had had sexual intercourse. She testified she was menstruating slightly and that while they were having intercourse, her husband had kept his pants on. She testified she had never known him to be sexually abnormal (Tr. 417), and that they had been married for eight years and had three children. (Tr. 417). She testified that the police officers had picked Jack up at her mother’s house in Stockbridge on April 15 at 1:00 p.m. On cross examination, Mrs. House defended her statement that House had been at home at 4:00 p.m., testifying that she looked at the clock when she got home and it was exactly 4:00 p.m. (Tr. 423). Jack House then took the stand in his own behalf. He was permitted to give a rambling narrative of the events of April 14, 1973. House’s narrative statement was long, detailed, and appears to evidence a good bit of prior reflection on his part. The statement is too lengthy to be set out verbatim herein, but a copy has been included in an Appendix filed contemporaneously herewith for ease of reference. The statement is important because it is the only place in the record where a full version of the facts as told by House appears. House’s statement is summarized as follows: On the morning of April 14, House and his wife did some shopping and various activities. After they returned home he started drinking. He went to his mother’s home for a while and then to a liquor store on Collier Road. He gulped down half of the vodka he purchased and poured the rest into a soft drink bottle. He walked báek down Seaboard Avenue, and then turned on Claremont when he saw two little boys who asked if he was drunk. He walked on going toward a store at the corner of Mantissa and DeFoor Avenue. He looked back and noticed the two small boys coming behind him on their bicycles. House then stated he entered the wooded area on DeFoor Avenue. He lay down and as he shut his eyes he could hear someone talking. He passed out, and when he woke he had no idea what time it was. He left the wooded area the same way he entered, and went down DeFoor Avenue to Davis Street, then on Davis Street to Davis Place, where he turned and went to his home at the corner of Davis Circle and DeFoor Avenue. House stated that later that evening, he went to his in-laws’ home in Stockbridge, Georgia. The next morning the police came and asked to talk to him. He agreed. After they got to the police station House signed a waiver of rights form. House then described in a great deal of detail how he was interrogated and allegedly beaten. House said the police then took his pants, stating they wanted to look into an apparent blood spot on them. He said that at the time he felt it was not a blood spot, as he had been unaware that his wife had been having a period. House testified he finally decided to confess to stop the beating he was receiving. He stated he had dictated a part of the confession to a male typist, but contended that prior to the incriminating part about the killing he stopped dictating. He did not explain how the rest of the confession was physically prepared. He stated he then signed it without reading it. He said: ... I just had no desire to read it, I just sat there and stared at it. I could see my future, I could see my wife, my three kids and all that down the drain. I mean, you can get all the ass you want by the drop of a billfold. (Tr. 459). House then described how he took the officers to the crime scene. He did not contradict Detective Smegal’s trial testimony that he took the officers to sites where he indicated the victims’ clothes ^nd bodies had been left. He testified that he was able to locate the place where he had laid down because of a piece of plastic in the area, plus a cigarette butt he noticed on the ground. However, he made no specific mention of how he was able to locate the spot where the victims’ clothes had been. House explained he deduced where the victims’ bodies had been found by figuring they must have been near the site where the police contended he was seen exiting the woods. He said he took the police up toward that area, and that he kept examining the ground along the pathway until he saw a spot where the ivy appeared to have been trampled down. Finally House explained how he went to a committal hearing when the judge inquired about the fact that he did not have a lawyer. With that, his narrative statement ended. On cross examination, House admitted that State’s Exhibit No. 23 was his hat and that he had been wearing it oh April 14 and 15. Although State’s Exhibit No. 23 has not been viewed by this Court, it is inferred that it is a black, western style hat. The following colloquy occurred during cross examination: Q Did you say yesterday that you can get all the ass you want by the drop of a billfold? A You sure can. Q Is that what you said yesterday? A That is what I said yesterday. Q And that is the word you used, right, ass? A That is the word I used. Q Mr. House, you can — you stated or have you stated whether or not you can read, sir? A I can read. Q Would you look at— A But can I say something? I was not preferring (sic) to it as you are preferring (sic) to it. Q What am I referring to, sir? A You are trying to go over that statement where it says ass in the statement— Q Yes, sir. A —and that is not the ass I was preferring (sic) to. Q That is very clever, Mr. House. A I knew what you were driving at. Q Is it in that statement? A It s m that statement. (Tr. 493-494). On redirect, Ben Atkins asked House whether he had ever shown him (Atkins) any of his injuries which he received in the beating. House indicated that when Atkins had come to visit him at the jail, he had pulled his pants down and shown Atkins bruises. (Tr. 513-514). Brintley House, brother of Jack House, testified that he had been with Jack House on Saturday afternoon, April 14. He testified they had been at their mother’s home and that Jack House was drunk. At around 2:30 p.m., Jack had left and he did not know where he had gone. (Tr. 517). He further testified that his brother had never had any homosexual tendencies. (Tr. 518). Dorothy Atkins took the witness stand and testified about her initial meeting with Jack House on Wednesday afternoon, April 19, 1973. She stated House had cried and begged her not to let the police beat him any more. (Tr. 526). She also testified that House had shown her a “red place” on his ear and also on his face. (Tr. 527). Ben Atkins then took the stand and testified about seeing the bruises in House’s groin area and the “round mark” on his chest. (Tr. 530-531). With that, the defense rested. The State presented rebuttal evidence to show that House had not made any request for medical assistance while in jail other than a perfunctory request for aspirin. (Tr. 534-544). It further presented a Fulton County deputy’s testimony to the effect that House had stated to him in casual conversation that he was “wild” when drunk. (Tr. 555-556). The State waived opening argument and reserved the right to concluding remarks. Dorothy and Ben Atkins were permitted to divide the closing argument. Dorothy Atkins pointed out that the fingernail scrapings taken from the defendant had been negative. She pointed out that House had no prior criminal record and she complimented the city police force. Ben Atkins then argued, pointing out that House had been interrogated by the police for approximately five hours before he allegedly confessed. He reread the entire confession to the jury. He attempted to discredit the medical examiner’s testimony by pointing out what he felt was improbable testimony. He urged the jury not to judge House harshly merely because he admitted having been drunk and hanging out in the woods. The prosecutor summarized the evidence in his closing argument. He sharply attacked House’s credibility. The jury was charged and brought back a verdict of guilty on both counts. D. Sentencing Phase of the Trial After the guilty verdict had been returned the following colloquy between the court and counsel occurred: THE COURT: All right, Mr. Hayes, any further evidence? MR. HAYES (Assistant District Attorney): No evidence on behalf of the State, Your Honor, I would like to argue. THE COURT: Any further evidence, Mr. Atkins? MR. ATKINS: No sir. Do they go out and deliberate on the sentence? THE COURT: That’s right. Each of you have a right to offer evidence in mitigation or aggravation. Each of you have a right to make closing arguments. You would have a right to the opening and concluding arguments. (Tr. 611). Ben Atkins waived opening argument. The Assistant District Attorney argued that the death penalty should be imposed, pointing out the heinous nature of the crimes. Defense counsel’s closing argument consisted of three sentences. It was: MR. ATKINS: May it please the Court, ladies and gentlemen of the jury, any lawyer who finds himself in this position cannot help but feel somewhere along the way there must be something that he could have done to have brought about a different decision, he always does. I must admit I have never been in this position before. I think there has been enough dramatics already, and all I would like to leave with you for your own sake is, “Vengeance is mine, saith the Lord.” Thank you. (Tr. 611). After deliberating the jury found aggravating circumstances and recommended the death penalty. House was sentenced to death on July 11, 1973. E. Post Trial Matters 1. The Michael Pitts/Jimmy Fields/Tommy Willoughby Testimony Ben Atkins received a number of telephone calls from Jack House’s mother after House had been convicted. In one of these telephone calls, she apparently told him that an individual named Michael Pitts, who she believed was homosexual and who allegedly hung around in the DeFoor Avenue woods, was in the Cobb County Jail. (May 28,1980 habeas Tr. 14). Atkins went to the Cobb County Jail a couple of days later, but Pitts was gone. (May 28, 1980 habeas Tr. 14). Atkins then sent an investigator out looking for Pitts, but the investigator was unsuccessful. (May 28, 1980 habeas Tr. 15). For over a year after that, Dorothy Atkins tried to locate Michael Pitts. (May 28, 1980 habeas Tr. 107). She called the State Board of Corrections, but to no avail. (May 28,' 1980 habeas Tr. 108). Jack House’s sister Eloise Jarrard also testified at a habeas hearing on June 15, 1979, that a Tommy Willoughby had reported to her that “Michael Pitts said that Jack did not do it.” (June 15, 1979 habeas Tr. 107). Ms. Jarrard testified she had talked with her mother and sisters about this, and that they had been reluctant to tell the Atkinses because Willoughby took dope and “they didn’t want to bring the dope in the family.” (June 15, 1979 habeas Tr. 107). In any event Ms. Jarrard further indicated that later Willoughby had come back to see her and told her to disregard his previous statement because “I was drunk at the time I told you.” (June 15,1979 habeas Tr. 108). Although Tommy Willoughby is a relative by marriage of Ms. Jarrard’s (June 15, 1979 habeas Tr. Ill), and she knows where he lives (June 15, 1979 habeas Tr. 108), he has not appeared as a witness at any of the habeas hearings in this case. Also after the trial, information was furnished to Dorothy and Ben Atkins, probably by Jack House’s mother, concerning an individual named Jimmy Fields. (See May 28, 1980 habeas Tr. 15,108). Ben Atkins’ recollection at the habeas hearing was that House’s mother suggested Fields might be in possession of information that would make it appear that Michael Pitts was guilty instead of Jack House. (May 28, 1980 habeas Tr. 15). However, the Atkinses were unable to locate Jimmy Fields. (May 28, 1980 habeas Tr. 15-16). Judy House gave the following testimony about Jimmy Fields at a habeas hearing on May 30, 1980: A He looked like Jack a lot, similar to him, just like him because of the way he walked, you know. Q In what other respects did he look like Jack? A The way he wore his hat similar to the way Jack did. (May 30, 1980 habeas Tr. 355). A neighbor testified that an individual named Jimmy Fields lived on DeFoor Avenue. (May 29, 1980 habeas Tr. 234-237). She said Fields and his family had lived in the neighborhood “all their lives” (May 29, 1980 habeas Tr. 236). She testified Jimmy Fields and Jack House looked a great deal alike. (May 29, 1980 habeas Tr. 237). However, she said she did not recall his wearing a hat. (May 29, 1980 habeas Tr. 238). 2. The Ramsey-Patterson Testimony Ruby Ramsey and Bobby Patterson, longtime residents of the Jack House neighborhood, testified at habeas hearings in 1980. Neither of the women had testified at the trial. Mrs. Ramsey testified she had seen the Smith and Dunn boys playing in her yard at 5:00 p.m. on Saturday; April 14. Mrs. Patterson confirmed that she had seen two boys in Mrs. Ramsey’s yard at or after 5:00 p.m. on that day, although she could not identify the boys by name. The women testified they had called Dorothy Atkins shortly after House’s trial and had given her this information, which they deemed quite relevant in light of their understanding that the crimes had been committed at approximately 3:30 p.m. However, court records reflect that the Atkinses did not file a motion for a new trial based on this new information. On February 7, 1983, the Court heard further testimony concerning this matter. Having considered the evidence, including the transcript of the 1980 testimony, the Court finds the facts are as follows: On the afternoon of April 14, 1973, Ruby Ramsey saw the Smith and Dunn boys playing in the area around her home. She does not recall the exact time, but testified she believed she had first seen them after lunch, and that they were there “for hours.” (May 29, 1980 habeas Tr. 151, 152). Her daughter Kathy saw the boys also and spoke to them a number of times. (May 29, 1980 habeas Tr. 153). In the late afternoon on April 14, Mrs. John Allen Dunn came to the Ramsey residence looking frantically for her son Robbie. (May 29, 1980 habeas Tr. 172). Mrs. Ramsey told her she had seen Robbie and his friend Johnny Smith earlier in the afternoon. Mrs. Ramsey has testified she felt sure Mrs. Dunn inquired when she had last seen Robbie, but does not believe she indicated a time to Mrs. Dunn. Specifically, she said: Q And you don’t think you told her the exact time that you had seen the boys? A I don’t think I would have. I might have said something like a couple of hours ago or a good little while ago---- (May 29, 1980 habeas Tr. 172). Much later the same evening, Mrs. Ramsey heard police loud speakers in the neighborhood, requesting information concerning the whereabouts of the two boys. (May 29, 1980 habeas Tr. 174). She did not call the police. She did, however, call her good friend Bobby Patterson who lived diagonally across the street on Volberg. (May 29, 1980 habeas Tr. 194, 212). Although the record before the Court does not disclose the substance of the conversation, apparently Mrs. Ramsey indicated she or her daughter had seen the Smith and Dunn boys in her yard that day and Mrs. Patterson related in turn that she had seen two young boys, whose names she did not know, playing around Mrs. Ramsey’s yard earlier in the day. (May 29, 1980 habeas Tr. 212). Mrs. Ramsey talked to the police the next morning when they came by in the course of a neighborhood canvass trying to identify a composite drawing. She testified at a habeas hearing that she feels sure she “must have” told the police about seeing the Smith and Dunn boys, although she was unable to give any details at the habeas hearing. (May 29, 1980 habeas Tr. 177). Ruby Ramsey attended Jack House’s trial as a spectator. On July 10,1973, she heard the testimony which indicated that a man in a black hat had entered the wooded area on DeFoor Avenue at about 3:00 p.m. and was seen exiting it at about 4:00 p.m. After she got home that day, she went to see Bobby Patterson and related to her that the evidence indicated the victims had been killed “between three and three-thirty.” (May 29, 1980 habeas Tr. 195). Evidently this caused the two women to further reflect on what they had observed on the afternoon of April 14. It is unclear from the record whether the facts they then recalled on July 10,1973 were first recalled at that time or had been recalled earlier. The Court infers they were recalled for the first time, because it evidently was only at the trial that Mrs. Ramsey obtained information concerning the apparent time of death of the victims. Mrs. Patterson recalled on July 10, 1973, that the two young boys she had seen in the Ramsey’s yard on the afternoon of April 14 had been there after 5:00 p.m. (May 29, 1980 habeas Tr. 195). Mrs. Patterson’s habeas testimony arguably indicates an independent recollection of the time. (May 29, 1980 habeas Tr. 190). However, the Court infers that Mrs. Patterson actually fixed the time by reference to the arrival of her daughter’s family that afternoon. She recalled that her daughter’s family had left Ellijay to drive to Atlanta that day “somewhere around, between two and three” (May 29, 1980 habeas Tr. 191), and she estimated the trip was about a two hour drive. She then appeared to deduce from that that her daughter and grandson must have arrived at 5:00 p.m. or so. (May 29, 1980 habeas Tr. 189-191). Mrs. Patterson stated she distinctly recalled the two boys exited Mrs. Ramsey’s driveway and went up the street shortly after her daughter’s family arrived. (May 29, 1980 habeas Tr. 189-190). At some point Ruby Ramsey decided that the Smith and Dunn boys definitely had been in her yard at 5:00 p.m. on April 14. At the 1980 habeas hearings, she testified as follows: Q Do you recall seeing Robbie Dunn and/or Johnny Ray Smith on the afternoon of April 14th? A. Yes. Q. Can you, please, tell the Court what the circumstances were on your seeing them? A They had played in my yard off and on. I don’t know if they left the yard at any time or not, but they had played. I kept hearing them on the outside there and saw them and they were— we had this little creek in back of my house and my daughter had talked with them several times and they said they were fishing, they had sticks, and were fishing there. But they said they were fishing. Q What time was the last time you recall seeing them on that Saturday afternoon? A At about five minutes after five. Q How do you recall exactly what time it was? A. Because I was going to the grocery store and I had to look at the clock before I went because I usually went earlier than that. I had a headache and I kept laying around that day. (May 28, 1980 habeas Tr. 136). Q What time did you tell us yesterday that was? A I would say right at five o’clock. Q What pinpoints it in your mind at that time? A That’s when I went to the grocery store. Q You are absolutely positive you went to the grocery store? A Oh, yes. (May 29, 1980 habeas Tr. 154). At a habeas hearing on February 7, 1983, Ruby Ramsey’s daughter Kathy Ramsey testified. She stated that she had gone to the grocery store instead of her mother on April 14, 1973, and that as a result of her discussion with her mother on February 6, 1983, her mother has changed her mind and now agrees with her on this point. (February 7, 1983 habeas Tr. 104). Returning to the chronology, Mrs. Patterson called Dorothy Atkins on or about July 14, 1973. Ruby Ramsey was at her home when she placed the telephone call. Although both women testified at the 1980 habeas hearings that Mrs. Patterson told Mrs. Atkins she had seen the victims at 5:00 p.m. on April 14 (May 29, 1980 habeas Tr. 162) , the Court doubts that was precisely what she said. Dorothy Atkins went the next day to see Mrs. Ramsey and Mrs. Patterson. Michael Shumacher, a young lawyer who was then sharing office space with the Atkinses, went with her. (May 29, 1980 habeas Tr. 163) . He had observed only a small part of the trial, and was only generally familiar with the facts. Mrs. Atkins and Shumacher met with Ruby Ramsey and Bobby Patterson. Also present was Kathy Ramsey, daughter of Ruby Ramsey. Shumacher took notes during the interview. Unfortunately, none of the participants have a ready recall of what was said. Further, there is some lack of certainty as to whether the interview was conducted at one time or in phases. (See May 29, 1980 habeas Tr. 253-254). However, it is clear that after the interview, Michael Shumacher returned to his office and prepared a motion for a new trial. One of the grounds asserted in the motion was the discovery of new evidence. Shumacher also typed up proposed affidavits for Kathy Ramsey and for Bobby Patterson based on his interview notes. He further typed up an affidavit for the signature of Jack House and Dorothy and Ben Atkins, verifying that the new evidence contained in the affidavits could not have been discovered by the exercise of ordinary diligence prior to trial. The three proposed affidavits were attached to the motion. Kathy Ramsey’s proposed affidavit stated that on the afternoon of April 14, 1973 she had seen Johnny Smith and Robbie Dunn in her back yard. Her affidavit then stated the following: I was asked by my mother to go to the grocery store for her. The grocery store closed at 6:00 P.M. that afternoon and my mother was anxious for me to get there before they closed. I have no way of telling what the time was at the time that I was talking to the children in the back yard. I only know they were still playing there when I drove out of the driveway to go to the store. On my way to the grocery store I went down Claremont and saw Jack House walking towards Defoor on Claremont. He was staggering as though he had been drinking. As I passed by Jack I noticed that the parents of one of the boys were standing in their front yard observing Jack House going down the street. The only statement that I can make regarding the time that I saw the boys in my back yard and Jack House on Claremont is that it was after 3:00 P.M. on the afternoon of 14 April 1973. That was on a Saturday and was the same day that the two boys were murdered. Bobby Patterson’s proposed affidavit stated the following in pertinent part: That on the 14th day of April, 1973, a Saturday, she was sitting on the steps on her house at the above address. The time was approximately 5 or 5:30 P.M. that afternoon. That, while sitting on the front steps of her house, she happened to look up and observed two small boys in the driveway of the house at 1914 Volberg St., which is located across the street from her house. That one of the small boys that she observed had platinum blonde hair and wore glasses that appeared to be black or some dark color frames. That she does not know the two boys who were murdered that day and cannot positively identify the two boys that she saw by name. That she did not take any special notice of the two boys that she saw and did not speak when she observed them from a distance of approximately 100 feet. That she placed the time at 5:10 P.M. that afternoon because her daughter and son-in-law had left Ellijay, Georgia at 3 P.M. that afternoon and had arrived at her house some time before she observed the boys in the yard across the street. Taking into consideration the travel time from Ellijay to Atlanta the time that she saw the two boys had to be around 5 or 5:30 P.M. that afternoon. The affidavit prepared for execution by Jack House and the Atkinses’ provided as follows: Personally appeared before the undersigned authority, JACK C. HOUSE, Movant in Motion for New Trial; BEN S. ATKINS and DOROTHY D. ATKINS, Counsel for Movant; and, individually, and collectively state that the newly-discovered evidence as to the testimony of Mrs. Vernon Patterson, and Miss Kathy Ramsey was not known to have existed prior to or at the time of the trial; that Mrs. Patterson telephoned Dorothy D. Atkins at 12:10 A.M. on Saturday, July 14, 1973, stating that she had been away on vacation, had returned, and had heard about the trial and testimony given in the trial; and that same could not be true. The subsequent evidence from both this witness and Miss Kathy Ramsey could not have been discovered by the exercise of ordinary diligence prior to the trial. Ben S. Atkins signed the motion for a new trial prepared by Schumacher. Jack C. House, Ben S. Atkins and Dorothy D. Atkins executed the affidavit prepared for them. Their signatures were notarized by Michael K. Schumacher, Notary Public, on July 24,1973. A copy of the signed motion, notarized affidavit of the Atkinses and Jack House, plus attached copies of the unexecuted affidavits of Kathy Ramsey and Bobby Patterson were served on the State’s attorney. However, the original motion and the affidavits were never filed with the clerk of the court. See affidavit of William Kimsey, Clerk of the Criminal Division of the Fulton County Superior Court Clerk’s office, filed July 9, 1980. Furthermore, the Atkinses never asked Kathy Ramsey and Bobby Patterson to execute their affidavits. Instead, Dorothy and Ben Atkins filed on July 26, 1973 a form motion reciting the general grounds for a new trial. This motion did not mention newly discovered evidence. In addition, on November 19, 1973, Michael Shumacher, acting “for Ben S. Atkins, attorney for defendant,” filed an amended motion for a new trial adding additional grounds for a new trial. This motion did not mention newly discovered evidence either. Shumacher argued the motion for new trial on November 19,1973. He apparently was then under the impression that the motion for new trial which he had originally prepared had been filed, as he testified in a habeas hearing that he had orally informed Judge McKenzie on November 19 that he was withdrawing the portion of the motion for a new trial which related to newly discovered evidence. (May 29, 1980 habeas Tr. 248). This sequence of events presents a number of questions. In the first place, exactly what information was give