Florida, T, 1986

go--often threatening violence." O'Connor, "It's 1982 and
Slavery Remains an Issue." (App. I). One television
documentary reported the actual sale of a migrant worker
from one crew leader to another. "Prisoners of the
Harvest." -AAgp. FF).

24. The white lawyers who represented Daniel Thomas
came from a different world. They knew blacks as servants
and laborers, not as schoolmates, colleagues, or fv tends.
(Affidavit of John R. Howes, App. J). Blacks were still
commonly referred to as "niggers" or "nigras" or
"colored". Few blacks held positions of high social
status in Polk County. Even today, only seven out of 140
teachers in Winter Haven High School are black.
(Affidavit of Robert Austin, App. FF. No black person
has ever been elected to the Polk County Commission. Id.
There has never been a black judge on the bench in the

Circuit Court in and for Polk County.

Public Perception of the "Ski Mask Gang"

25. After a series of robberies in October of 1975
attributed by the press and law enforcement to a single
all-black gang, the news media throughout Central Florida

provided almost daily coverage of the progress of the

“investigation of the "gang" as well as any new incidents

attributed to the group. These reports noted that in

31


every case the assailants were black and the victims were
white. Early on, reporters speculated about racial
motivations for the attacks. Articles described the ski
mask gang as "Black Kluxers". Officials recklessly told
the press that the apparent motive for the attacks was not
pecuniary gain, but the infliction of terror (speculation
joined in by Mr. Thomas' court-appointed psychologist).

26. The public response to this publicity was
intense. Gun dealers reported selling out, as angry
homeowners purchased weapons for self defense. The
Sheriff's Office in Lake County advised parents to keep
their children in on Halloween because of vigilante
activity. "Clermont All Quiet", Channel 8 News, WFLA
(Exhibit 8). Headlines repeated over and over again the
words "terror" and "terrorist", evoking powerful currents
of fear and vengeance in the community.

27. Although some crimes were committed by a single
individual, others by two people, and others by three or
four, news reports attributed all of the crimes to an
undifferentiated "gang". The Ku Klux Klan offered a
reward for information leading to the apprehension of the
gang. Because of the longstanding tension between blacks
and whites in Polk County, it was inevitable that the

pattern of black assailant and white victim further

32

aroused public anger. When arrests were finally made, the
sheriff's office and the courts took special security
measures, not to prevent an escape, but to avoid a
lynching. (Affidavit of John R. Howes, App. U; R. 941).
Community hostility ran so high that the Public Defender
for the Tenth Circuit, Jack 0. Johnson, warned assistants
assigned to represent alleged members of the ski mask gang

to be careful of their own personal safety. (App. K).

Pretrial Publicity

28. NewS coverage intensified once arrests were
made. Central Florida newspapers, radio, and television
noted daily developments in legal proceedings. They
reported new charges as they were filed, and described
each of the numerous court proceedings, from the entry of
written not guilty pleas to the verdicts in each trial.
Public fascination with the case was so great that even
trivia received front page attention, for example, a story

in the Lakeland Ledger about a high school principal's

lack of memory of two former pupils accused of being
members of the gang. The ski mask cases were treated
unlike any ordinary criminal case, even a serious
homicide. Polk County bondsmen were quoted expressing

unwillingness to post bond for any of the "ski mask"

aa

suspects, no matter how low the bond was set, because of
community reactions. "Bondsmen Unwilling to Post for

Terror Suspects", Tampa Tribune, Feb. 13, 1976. (Exhibit

2).

29. News stories repeatedly emphasized the link
between each particular offense and the other fifteen or
aixhach crimes attributed to the "Ski mask" or "terror"
gang. They also focused special attention on the reputed
"leader" of the group, Daniel Morris Thomas. Although
early news reports described the assailant who committed
the solo attacks as between 18 and 23, the press quickly
shifted responsibility to the 27-year-old Thomas.

30. The level of press coverage rose and fell with
each new indictment and each new trial. Daniel Thomas was
tried with Lee O. Martin and Larry Marshall for robbery,
burglary and sexual assault charges arising from an
October 21, 1975 break-in at the home of the Smith family
in Avon Park in May 1976. The jury found all three
defendants guilty of lesser included offenses, provoking a
public outcry against the jury's "confusion" and mistake.
"hesser Verdicts Elicit Passionate Reaction in Polk,"

Tampa Tribune, May 15, 1976. (Exhibit 2). Daniel Thomas

was tried alone for charges involving the Stephenson

family and convicted on September 13, 1976. He was tried


for it from an undercover informant. (Tr. 823). The ski
mask found in Lee 0. Martin's house was medium blue, while
a mask found at 115 Wheeler Street, where Daniel Thomas
was living with his ex-wife, was black. (Tr. 837, 871).
Lee O. Martin's brother admitted on cross examination that
the medium blue mask belonged to his brother. (Tr. 923).

7. The identification testimony was so vague that it
was of little value, although it was inconsistent with
Daniel Morris Thomas in some important respects. It
strongly implicated him in only one respect: the State
introduced evidence, that Daniel Thomas, like the intruder
who killed Mr. Anderson, had scars on his legs. (Tr.
1021, 1031-32). What the State did not reveal was that
two other members of the ski mask gang were known to have
scars on their legs as well.

8. Prison records compiled on October 28, 1976, six
months before the trial of the Anderson homicide charge,
show that Lee 0. Martin was known to bear scar tissue on
his right lower leg. (App. O). This was never revealed
to the defense. Affidavits from Lee O. Martin, his
mother, Ida Jordan, and Larry Marshall, another member of
the ski mask gang, prove that Lee 0. Martin does indeed
have scars on his leg. Had the jury known this, it would

have concluded that the other evidence was not sufficient

76

A. No, just nigger odor.

Williams: What type of impression did you
get as for his age?

A. I couldn't tell you, I just couldn't tell

you the age of a negro, I just couldn't. I'm

an ex-bank teller, but I couldn't begin to

tell you the ages of niggers. I just

couldn't.
Pretrial identification statement of Betty Anderson,
Bartow, Florida, January 2, 1976 (App. xX).

4. Prison records demonstrate that Mr. Thomas is six
feet tall (App. M). Yet Mrs. Anderson was quite certain
about her estimate of the man's height, based upon
comparison with the height of her son-in-law. (R. 1014).
Prison records also show that Lee 0. Martin is 6'2",

(App. N).

5. Mrs. Anderson testified she did not think the man
had any facial hair. A photograph taken of Daniel Thomas
two weeks prior to his arrest depicts him with a full
mustache extending below his upper lip. (App. 0). A
photograph of Lee 0. Martin taken the same day shows that
he was clean shaven. Both photographs were taken only a
week after the assault on the Andersons. (App. 0).

6. The murder weapon was found in a search of 108
Wheeler Street, where Lee 0. Martin lived. (Tr. 863).

Lee 0. Martin arranged the sale of a .38 caliber pistol

stolen from the Anderson residence and accepted payment

75

to exclude the hypothesis that Lee 0. Martin was the
guilty party, not Daniel Morris Thomas. Indeed, with this
evidence, the most powerful piece of evidence pointing to
Daniel Thomas rather than Lee 0. Martin was neutralized.
9. The State had this information in its possession,
not only from the jail record identified above, but from
physical examinations conducted at the Polk and volusia
County Jails. (Statement of Lee 0. Martin, App. P;
Affidavit of Lee 0. Martin, App. P). Nevertheless, the

State withheld this valuable evidence from the defense and

apparently from the trial court as well.

10. Defense counsel first learned that Lee 0. Martin
had scars on his legs after trial, and immediately sought
an in camera inspection of the State's files to determine
whether the State had violated its disclosure obligations
under the Florida Rules of Criminal Procedure and the

doctrine of Brady v. Maryland, 373 U.S. 83 (1963). The

trial court agreed to conduct an in camera inspection.
Although the court did not respond to the specific
questions posed in the defense Request on In Camera
Inspection, it did state "that the State did not fail or
refuse to disclose any material exculpatory evidence in
their possession to the defense." (R. 1612). The court

could not have reached such a conclusion had material

77


documenting the visual inspection of Lee 0. Martin's body
been provided.

ll. Even more damning, the State withheld a Federal
Bureau of Investigation report of an examination of the
murder weapon for latent fingerprints. This examination
disclosed two prints matching those of Lee 0. Martin.
There were no prints matching those of Daniel Morris
Thomas (App. Q). Not only should this information have
been disclosed to the defense before trial, because it
plainly linked Martin to the Anderson homicide, it was the
subject of a specific inquiry after trial. Defense
counsel after trial also learned from a confidential
source within FDCLE that such a report existed and sought
confirmation by this Court through an in camera
inspection. Although FDCLE had such a document in its
possession, it evidently did not provide the report to the
Court. Had FDCLE done so, this Court plainly could not
have concluded that no Brady violation ocurred.

12. Counsel has recently obtained two copies of this
FBI report. One was provided by the FBI through the
Freedom of Information Act. This copy is barely legible,
because it is a facsimile of a carbon copy. A second copy
of the report was released by the FDLE, the successor to

FDCLE, in response to a subpoena served on April 9, 1986.

78


Mental Health Center of Polk County, Inc., had previously
collaborated with the police in the same case. Prior to
Mr. Thomas' arrest, Dr. Kaplan had participated in police
efforts in the case by developing a profile of the mental
condition and background of possible suspects. (Appendix
S).

2. Dr. Kaplan submitted a report of his examination
in the form of a letter addressed to the court, with
copies to the state and defense counsel. According to Dr.
Kaplan's report, Mr. Thomas "did not respond verbally to
the examiner" at any point during the one hour interview.
"Upon entering the room Mr. Thomas shook his head 'no!
three times, seated himself, and looked away from the
examiner." Nevertheless, based on Dr. Kaplan's
observation of Mr. Thomas' appearance and "a discussion
with several jailors," Dr. Kaplan advised the trial court
that it was his conclusion that Mr. Thomas was competent
to stand trial. Dr. Kaplan's report was not placed in
evidence by defense counsel or the state, nor did either
call Dr. Kaplan as a witness. The report received no
mention in either the guilt or sentencing phase of the
trial. Notwithstanding the fact that the report was
ordered and rendered solely on the question of competency,

in the trial court's findings in support of the death

123

sentence, the judge relied on the report in rejecting
other evidence of extreme mental or emotional distress as
a mitigating circumstance. The trial judge's use of the
pre-trial competency report in support of his
determination to impose the death penalty constitutes a
compelling violation of the fifth, sixth, and eighth
amendments as well as the due process clause of the

fourteenth amendment.

OTHER REQUIRED INFORMATION

1. Each of the grounds for relief has been
previously presented to the Supreme Court of Florida and
each has been rejected.

2. There are no appeals pending in any state or
federal courts relating to the judgment and sentence under
attack, other than a petition for writ of certiorari from
the decision of the Florida Supreme Court denying state
habeas corpus relief.

3. Petitioner has been represented by the following

counsel:

(a) At trial by Daniel P. Brawley, 2015 South
Florida Avenue, Lakeland, Florida 33803 and John R. Howes
of Fort Lauderdale, Florida.

(b) On appeal, initially be James Marian

124


Moorman, of Bartow, Florida. Mr. Moorman is currently the
Public Defender for the Tenth Judicial Circuit, but was in
private practice when appointed to represent Mr. Thomas,
Mr. Moorman was replaced as counsel by Lex Taylor, Post
Office Box 1064, Lakeland, Florida 33802, and John
Laurent, Post Office Box 574, Bartow, Florida 33830.
(c) On a writ of certiorari, by Robert E.
Henke of Neenah, Wisconsin.
(d) In post-conviction proceedings in 1982, by
Douglas Duncan, 406 North Dixie, West Palm Beach, Florida
33401.
(e) In post-conviction proceedings in 1986, by
undersigned counsel.
WHEREFORE, Petitioner prays:
1. That a writ of habeas corpus be directed to
Respondents;
2. That the State of Florida be required to appear
and answer the allegations of the petition;

3. That Petitioner be accorded a de novo

evidentiary hearing on the allegations set forth above, at
which he is present, since he did not receive a full and
fair evidentiary hearing concerning these issues in state

court, as required by Thomas v. Zant, 697 F.2d 977 (llth

Cir. 1983);


4. That, after full hearing, Petitioner be
discharged from his unconsittutional sentences;

5. That Petitioner, who is indigent, be granted
sufficient funds to secure expert testimony and lay
testimony necessary to prove the facts alleged in this
petition;

6. That Petitioner be granted the authority to

proceed in forma pauperis, including the right to obtain

subpoenas in forma pauperis for witnesses and documents

necessary to prove the facts as alleged in the petition;

7. That Petitioner be allowed a period of sixty
days, which shall commence after the completion of any
hearing this Court determines to conduct, in which to
brief the issues of law raised by this petition;

8. That Petitioner be allowed to amend this petition
up to and including the commencement of the hearing
requested herein;

9. The issuance of an order vacating and setting
aside Petitioner's judgment of conviction;

10. The issuance of an order vacating and setting
aside Petitioner's death sentence;

ll. An opportunity to conduct necessary discovery
in support of his claims, and the availability of

compulsory process to secure the attendance of witnessses,

126


He kind of went into himself and stopped talking. This
quietness took him over. Dan went into a shell."
(Affidavit of Arthur Thomas, App. D). One of Daniel's
sisters, Earlene Semington, remembers how their father
died: "My father was in such horrible pain that the
doctor sent my mother out of the room while he gave my
father the 'black bottom' shot, an injection to kill him.
Then the doctor let my mother come back in the room and be
with him when he died. It was the day after Christmas,
1952. Mother was never the same." (Affidavit of Earlene
Semington, App. D). The loss of the main support of the
family led Mrs. Thomas and the children into an immediate
downward economic and social spiral, and they all lived in
constant fear the family would be broken up by the county
welfare agency---a fear that would soon become reality.

7. After Moses Thomas' death, the children took care
of themselves (Affidavit of Earlene Semington, App. D),
and the younger children were taken care of by their older
brothers. The older brothers would beat Daniel, Scotty
and Roger, the younger ones; they would torture them by
sticking hot iron rods to their skin and slapping them on
the head. (Affidavit of Arthur Thomas, App. D). Pearl
Thomas, a widow at age 32, and mother of eight children in

the home, lost all control after her husband's death. She

17

worked for a while as a maid for two dollars a day. She
began spending money on moonshine "that made her crazy".
(Affidavit of Earlene Semington, App. D). Welfare records
report:

The mother never seem [sic] to manage her
children or the sum of money that was
received from her husband's death and would
accept no help in budgeting her income. She
has moved many, many times. During the
summer of 1956, it was thought that she had
learned her lesson in right living. She
refurnished her home, bought play equipment
for her children and said she was going to
marry another preacher. This did not
happen. She formed friendship [sic] with Tom
Hutton. He refused to marry her. A child
was born to them. The mother was dropped
from the Welfare role. Tom did not support
the family. Mrs. Bouchillon, welfare agent,
was kind enough to give the family
commodities,

(App. A).

8. For five years after the death of their father,
the younger children, Daniel included, lived in a world of
unbelievable poverty, malnutrition, abuse and neglect:
they went hungry for days, had to steal food from garbage
cans, and were jailed and tortured just because they had
no decent place to live. Earlene Semington described the
experience;

- « « We went to bed hungry many nights.
things got worse and worse. Daniel and my
brothers would go out searching for food for

us. They would have to steal from white
people's garbage cans or sneak into stores

18


What particularly saddened and appalled us
were the developmental anomalies and
diseases that we know once were easily
correctable, but now are hopelessly
consolidated; bones, eyes, vital organs that
Should long ago have been evaluated and
treated are now beyond medical assistance, if
it were available. In some cases we saw
children clearly stunted, smaller than

their age would indicate, and drowsy or
irritable,

In sum, children living under unsanitary
conditions, without proper food, and with a
limited intake of improper food, without
access to doctors or dentists, under crowded
conditions, in flimsy shacks, pay the price
in a plethora of symptoms, diseases, aches,
and pains. No wonder that in Mississippi
(where Negroes comprise 42% of the state's
population) the infant mortality rate among
Negroes is over twice that of whites; and
while the white infant mortality rate is
dropping, the rate for Negroes is rising.

Hunger and Malnutrition at 46-47 (prepared statement of

Dr. Brenner, et al.).

3. Malnutrition, poverty, racial discrimination, and
fear were everyday realities for young Daniel Thomas. He
is a classic product of the system in which he was born.

4. Daniel Thomas is the seventh of eight children of
Moses and Pearl Thomas (App. A). His father was 55 and
his mother 15 when the first child, Ida Thomas, was born
to the family in 1935. As a psychologist noted in
Mississippi Public Welfare Records, "The children of this
family were born to an old father and a young immature

mother. Due to the differences in their ages the mother

15

was treated as a child and never learned to accept the
responsibilities of motherhood." (Public Welfare Records,
December 7, 1959, page 2, App. A).

5. Young Daniel's father, Moses, worked as a janitor
and part-time minister at a local church (Public Welfare
Records at 2, App. A), while his mother, Pearl, worked as
a maid for a white woman. (Affidavit of Arthur Thomas,
App. D). Those early years, until Daniel reached the age
of four, were marked by poverty, but other family members
fondly recall the close family ties. (Affidavit of Arthur
Thomas, App. D; Affidavit of Jessie Thomas, App. D). In
1952, when Daniel was three years old, a tragedy struck

the family that was to profoundly alter all of their

lives.
6. Mr. and Mrs. Thomas were returning from church
when the car they were in crashed. Both were

hospitalized. (Affidavit of Arthur Thomas, App. D;
Affidavit of Earlene Thomas Semington, App. D). Pearl
Thomas was released after a time, but Moses Thomas
remained for six weeks in the hospital. While both
parents were in the hospital, a tornado struck, in what

Arthur Thomas describes as a "frightening nightmare."

Daniel, as a child, at that time had hallucinations that a

fire ball had hit the house and "he was never the same.

16

request for a continuance, (Tr. 1226). Only one witness
testified for the defense. Detective Willie T. Richardson
testified that Daniel Thomas told him he was beaten by a
prison guard back in Meridian, Mississippi, until he could
not walk and that Daniel cried when he showed the
detective the scars from that beating. (Tr. 1252). The
court allowed this testimony over the State's objection,
"just for the purpose of showing maybe he was under
extreme mental emotional disturbance because of these
acts." (Tr .7 Best)...

51. The jury recommended a sentence of death. (Tr.
1277). On April 15, 1977, the court denied defense
motions for a new trial and for a pre-sentence
investigation and imposed a death sentence. The court
entered written findings of fact in support of the death

penalty. (R. 1592-95).

CLAIM I
A.

THE TRIAL OF DANIEL THOMAS WHILE HE WAS
INCOMPETENT VIOLATED THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION

His failure to assist in this defense was
thus not a rational or volitional decision on
his part at all, but was the manifestation

49


of his schizotypal personality disorder and
psychotic-like and paranoid thinking...

From Evaluation of Dr. Harold Jordan, April 8, 1986, (App.
Vv).

1. Daniel Thomas was incompetent to stand trial. tt
is undisputed and has been central to the previous
litigation that Mr. Thomas communicated with no one
connected with his case: his own attorney, psychologist,
or the Court, before or during trial. Unquestionably,
this bizarre conduct impaired the defense in a very real
way. His trial attorney so testified. (3.850 Tr. 40-41).
Until now, every court reviewing this matter has placed
the onus of blame for Mr. Thomas' failure to talk to his
attorney on his shoulders as if it was a rational decision
On hig. part.) “Wt “fe anly now that we know Mr. Thomas had
no choice in the matter at all. He was suffering at the
time of trial from a disabling mental condition which

prevented him from communicating with counsel, assisting

in his defense, or understanding the nature of the legal
proceedings against him. There was a total absence of
rational decisionmaking or understanding on his part at
the time of the trial.

2. Mr. Thomas, at the request of counsel, has
recently been examined by Dr. Howard Jordan, a

distinguished psychiatrist who is the former commissioner

50


Martin's house and Martin had been convicted of the
robbery in which the gun had been stolen. The court would
not permit the defense to prove this fact in the guilt or
innocence phase of the trial through Lee 0. Martin's own
confession. (R. 1384). Lee O. Martin was the one who
arranged the sale of the .38 pistol stolen from the
Andersons and the one who accepted the proceeds from this
transaction. Daniel Thomas was not even present when
Martin sold the gun to an undercover informant. The
evidence at trial provided the jury with only two bases
for rejecting the hypothesis that Lee Martin had committed
the crime. The first evidence was the testimony of Lee
Martin's brother, Cody Martin, who testified under an
agreement with the State. Cody Martin testified that he
went with Daniel Thomas to "case" possible sites for
future robberies on January 1. The defense impeached
Martin with prior inconsistent statements, as well as with
his interest in currying favor with the government in
Order to avoid prosecution for battery ee to obtain a
favorable plea bargain on robbery charges. The second
piece of evidence which appeared strongly to implicate
Daniel Thomas was testimony that two police investigators
had exanined’ tee legs following his arrest and found

bruises or welts. Mrs. Anderson testified that her

47

assailant had welts or scars on his legs and that during
the sexual assault she had been forced to feel him "all
over." In closing, the prosecutor argued that the welts
Proved beyond a reasonable doubt that Daniel Thomas had
been the one who committed the homicide. (Tr. 1106).

49. The jury found Daniel Thomas guilty of first

degree murder. (Tr. 1216).

H. The Penalty Phase

50. Through an FDLE agent with no personal knowledge
of any of the things to which he testified, the State
proved that Daniel Thomas had previously been convicted of
three "ski mask" crimes, each involving the use or threat
of violence. A defense objection on hearsay grounds was
overruled. (Tr. 1230) The State also introduced the
hearsay testimony of a Winter Haven detective describing a
previous robbery conviction. The defense sought a
continuance to obtain the testimony of Wilbert Lee, one of
two men wrongfully convicted of murder, sentenced to
death, and cleared after spending twelve years on Death
Row. The State objected to Lee's proffered testimony on
the ground that "there is nothing in the statute under the
mitigating circumstances that would permit this kind of

testimony." (Tr. 1225). The trial court denied the

48

evidence to show that the race of the decisionmaker does,
indeed, influence decisions in which race is a factor, as
it inevitably was in this case. Studies have shown that
white juries are more likely to find a black person guilty
than a white person, based upon the same evidence.

Johnson, Black Innocence and the White Jury, 83 Mich. L.

Rev. 1611, 1625-1634 (1985) (surveying recent experimental
literature). The race of the victim has been shown to
influence the determination of guilt "such that a black
defendant on trial for a crime against a white victim is
doubly disadvantaged." Id. at 1634. Studies specifically
of capital sentencing have shown that the killing of a
white victim increased the odds of receiving a death
sentence in Florida by a factor of 4.8. Gross & Mauro,

Patterns of Death: An Analysis of Racial Disparities in

Capital Sentencing and Homicide Victimization, 37 Stan. L.

Rev. 27, 78, 95-96 (1984). See also Gross, Race and

Death: The Judicial Evaluation of Evidence of

Discrimination in Capital Sentencing, 18 U.C. Davis L.

Rev. 1275, 1278 (1985); Zeisel, Race Bias in the

Administration of the Death Penalty: The Florida

Experience, 95 Harv. L. Rev. 456 (1981); Radelet, Racial

Characteristics and the Imposition of the Death Penalty,

46 Am. Soc. Rev. 918 (1981).

115

"awesome responsibility" for a capital defendant's life or
death renders the jury's verdict intolerably unreliable.

Caldwell was decided in 1985, after Mr. Thomas' trial and

appeal, and after his previous petition for a writ of
habeas corpus.

2. The court advised the jury that it had a role to
play in sentencing. Indeed, this was the only reason for
death qualifying the jury. See Claim VB, Supra. Instead
of accurately informing the jury that he was required to
give "great weight" to the jury's recommendation, however,
the trial judge told the jury that "[t]Jhe ultimate
decision remains with the Court notwithstanding the jury's
recommendation." (R. 290). This implied that the judge was
free to disregard the jury's recommendation entirely, when

as a matter of Florida law, this was not so. Tedder v.

State, 322 So.2d 908, 910 (Fla. 1975).

3. The Court emphasized the point in conversations
with individual jurors. For example, when Juror Gray
expressed reservations about capital punishment, the Court
reminded the juror that the jury's sentence was only
advisory.

MS. GRAY: I feel like I could justifiably
grant somebody guilty, but I am not sure how

my feelings would be about sentencing. And I
am just being real honest with you.

118

41. Pretrial publicity stirred the community against
anyone implicated in any "ski mask" crimes. There was
public support for proposals to punish break-ins involving
violence with the death penalty, without any homicide.
There was a substantial risk that Daniel Thomas might be
convicted and sentenced to death purely based upon his
association with the ski mask gang. The prosecutor's
exercise of peremptory challenges to remove black
prospective jurors eliminated a distinct group within the
community and deprived Mr. Thomas of his right to trial by
a fair and impartial jury.

42. The Florida Supreme Court has already declared a
prosecutor's systematic exercise of peremptory challenges
a violation of the Florida Constitution, however it has

not applied that rule retroactively. State v. Neil, 457

So.2d 481 (Fla. 1984).
43. The constitutionality of the racially
discriminatory use of peremptory challenges is currently

before the United States Supreme Court in Batson v.

Kentucky, Docket No. 84-6263. In addition to the issue

presented to the Supreme Court in Batson, this case
presents the additional question whether a higher level of
scrutiny should be applied to the discriminatory use of

peremptory challenges in a capital case.

116

44, The eighth amendment requires greater
reliability of capital sentencing verdicts. Racial
prejudice may have a powerful influence upon sentencing
decisions, and that is especially true in a case such as
this one. The exclusion of black jurors not only removes a
potential voice in opposition to such prejudice from the
jury room, it also serves as an official endorsement of
racial prejudice. The systematic removal of black jurors
conveys the unmistakable message that the administration
of justice is a matter for whites only.

45. The guilty verdict and sentencing recommendation
in this case are intolerably tainted by the effects of the
exclusion of black jurors, in violation of the eighth,
sixth, and fourteenth amendments to the United States

Constitution,

CLAIM VI

THE TRIAL JUDGE DIMINISHED THE JURY'S
SENSE OF RESPONSIBILITY FOR SENTENCING
AND MISINFORMED THE JURY ABOUT THE WEIGHT
ATTACHED TO ITS VERDICT, IN VIOLATION OF
EIGHTH AND FOURTEENTH AMENDMENTS AS
APPLIED IN CALDWELL v. MISSISSIPPI,

105 S.Ct. 2633 (1985)

1. In Caldwell v. Mississippi, U.S. , 105: S.Ct.

2633 (1985), the United States Supreme Court recently held

that misinformation which diminishes a jury's sense of its

Liy

The Supreme Court of Florida denied relief, Brown v.

Wainwright, 392 So.2d 1327 (Fla. 1981), and the Supreme

Court of the United States denied certiorari, Brown v.

Wainwright, 454 U.S. 1000 (1981).

B. Mr. Thomas applied to the Governor of
Florida for executive clemency. Clemency was denied on
September 28, 1982, and a death warrant was signed. Mr.
Thomas was scheduled to be executed on October 22, 1982.

C. On October 6, 1982, Mr. Thomas filed a
motion for post-conviction relief to vacate his judgment
and sentence pursuant to Fla. R. Cr. P. 3.850 in the
Circuit Court in and for Polk County. In connection with
this motion, Mr. Thomas also filed pleadings seeking a
stay of execution, discovery, fees and expenses for expert
witnesses, and an evidentiary hearing. The circuit court
granted the request for an evidentiary hearing on only the
issue of "ineffective assistance of counsel" and summarily
denied all other issues without hearing. On October 14,
1982, the court held an evidentiary hearing and denied the
motion without entering a stay. Mr. Thomas immediately
appealed to the Florida Supreme Court and
contemporaneously filed a petition for a writ of habeas
corpus and an application for stay of execution to the

Florida Supreme Court. On October 21, 1982, the Supreme

Mississippi, U.S. pa 0S: 8. Ce 6 2633 > (188s):

cree

VII) The trial judge improperly relied on Mr.
Thomas' post-arrest silence and a hearsay report never
subjected to rebuttal or confrontation to find an absence

of mitigating circumstances.

PROCEDURAL HISTORY

1. The name and location of the court which entered
the judgments of conviction and sentences under
consideration is the Circuit Court of the Tenth Judicial
Circuit, in and for Polk County, Florida.

2. Judgments of conviction were entered on April 8,
1977 (R. 1490, 1559). Sentence was imposed on April 15,
1977. (Rs 4577).

3. The court imposed sentences of deaht by
electrocution for first degree murder (Count I); life
imprisonment for sexual battery to be consecutive to any
other sentence (Count III); life imprisonment for burglary
(Count IV), consecutive to any other sentence; and life

imprisonment for robbery, consecutive to any other

*
References to the Record on Appeal in Thomas v. State,

Docket No. 51,692, are cited "R. ." References to the
transcript of the hearing on Mr. Thomas' previous motion
under Fia. R. ‘Cf, 0PR...3:850 are cited "3.850 Tr. _”


Court of Florida denied the petition for writ of habeas
corpus and the application for stay of execution and
affirmed this Court's denial of the motion for post-

conviction relief. Thomas v. State, 421 So. 2d 160

(228.2)5
D. On October 19, 1982, Mr. Thomas filed a
petition for writ of habeas corpus and an application for

a stay of execution in this Court, Thomas v. Wainwright,

Case No. 82-1166 Civ. T-H. On October 21, 1982, the this
Court granted Mr. Thomas's application for a stay of
execution. On November 21, 1983, the Court denied the
petition for a writ of habeas corpus.

E. Mr. Thomas appealed the denial of his
petition to the United States Court of Appeals for the
Eleventh Circuit on June 20, 1984, and a certificate of
probable cause was issued on July 12, 1984. On July 17,
1985, the Eleventh Circuit affirmed the denial of the

habeas corpus petition. Thomas v. Wainwright, 767 F.2d

738 (llth Cir. 1985). The United States Supreme Court
denied certiorari, 106 S.Ct. 1241 (1986).

F. On March ll, 1986, the Governor of Florida
Signed a death warrant, effective from noon on April 9,
1986, to noon on April 16, 1986. Mr. Thomas is currently

scheduled to be executed at 7:00 a.m. on April 15, 1986.


gentence (Count: JI).  (R. 1585).

4. The offense involved four counts: first degree
murder (Count I); robbery (Count II); sexual battery
(Count III); and burglary (Count Iv).

5. Mr. Thomas entered a plea of not guilty.

6. Trial of guilt or innocence was had before a
jury, which also rendered an advisory sentence to the
court following a separate penalty phase hearing. (R.
£553).

7. %Mr. Thomas did not testify in the guilty or
innocence or the penalty phase of his trial.

8. Mr. Thomas appealed from the judgments of
conviction and sentences to the Supreme Court of Florida,

which affirmed on July 26, 1979. Thomas v. State, 374

So.2d 508 (Fla. 1979). Rehearing was denied on September
24, 1979. The United States Supreme Court denied

certiorari. Thomas v. Florida, 445 U.S. 972 (1980).

9. Mr. Thomas has filed the following actions with
respect to this judgment:
A. Mr. Thomas joined 122 other inmates
sentenced to death in an original class action habeas
corpus proceeding in the Supreme Court of Florida,

challenging that court's practice of reviewing ex parte,

non-record material in affirming the inmates' sentences.


documents in response to subpoenas. The defense also
filed a motion on March ll, 1977, (R. 1562), for
individual voir dire of prospective jurors on the subject
of pretrial publicity, so that it would be possible to
interrogate prospective jurors in some detail about what
they had seen or heard about the case without exposing the
entire panel to damaging information. Despite Judge
Langston's earlier ruling transferring the Smith burglary
trial to Sarasota for trial because of the extent of
pretrial publicity, the court deferred ruling on the new
motion until after the trial began (R.185). The court
denied the motion for individual voir dire and granted

each side 28 peremptory challenges.

PF. Jury Selection

35. Trial commenced on April 4, 1977. The
questioning of prospective jurors centered on two issues:
pretrial publicity and the death penalty. The Court
acknowledged from the outset that some exposure to
pretrial publicity was presumed.

I am sure that if you have lived in Polk
County you have seen some of it on
television, heard some of it on the radio and
you have read some of it in, something about

it in the newspapers, and everybody is
expected to have.

(R. 338). The voir dire bore out this expectation. Every

a


again, with Lee 0. Martin, for another burglary, of the
Sowers residence, and convicted on October 28, 1976.

31. A continuing theme in the press coverage of the
"ski mask" cases, especially in Polk County, was the
State's failure to identify and charge the person
responsible for the slaying of Charles L. Anderson, a
resident of Polk City, killed on January 1, 1976. Not
until December 21, 1976, did the grand jury return an
indictment against Daniel Morris Thomas for that offense.

E. Judicial Proceedings Before Trial

32. The Public Defender for the Tenth Judicial
Circuit was appointed to represent Daniel Thomas in Case
CF76-2498, the Anderson homicide, on January 20, 1977.
Assistant Public Defenders had been assigned to represent
Mr. Thomas before each of his three previous trials. As
the public clamor against him intensified, Daniel Thomas
became increasingly dissatisfied with the representation
he was receiving. He did communicate with Assistant
Public Defender Dennis Maloney, now a Circuit Judge, who
represented him in the first burglary trial in May of
1976. The relationship grew turbulent in September, when
Mr. Thomas testified without any advice or assistance by
his counsel, Assistant Public Defender P. Douglas

Brinkmeyer, and expressed his unhappiness with his

35

lawyer's efforts from the witness stand. When Kingswood
Sprott, the Assistant Public Defender appointed to
represent Mr. Thomas in October, came to see him, Mr.
Thomas immediately sought to remove him, and represented
himself. The Public Defender's Office sought, and
received, permission to withdraw as Mr. Thomas' counsel on
appeal in Case No. 76-1553 (Fla. 2d DCA) because of a
conflict of interest.

33. Mr. Thomas refused to speak to Dan Brawley,
the Assistant Public Defender assigned to the Anderson
homicide case, when Brawley came to see him on January 21,
1977. Brawley did not come again until February 16th.
Immediately after seeing Mr. Thomas, Brawley filed a
motion to withdraw, based.upon an irreconcilable conflict
between the Public Defender's Office and his client. (R.
20). The circuit court denied the motion to withdraw
after a hearing on February 23, 1977. (R. 91).

34. On March 21, 1977, the trial court held an
evidentiary hearing on a motion for change of venue. (R.
175-76). Judge Langston, who presided over the first Polk
County trial in May of 1976, granted a motion for change
of venue because he recognized how pervasive pretrial

publicity had been. Fifteen news organizations,

newspapers, and radio and television stations, produced

36

prospective juror had some knowledge of the "ski masked

gang" and the series of crimes attributed to the gang. R.

383 (Pattey); 385 (Mathews); 389 (Bridges); 393 (Ayers);
397 (Cunningham); 400 (Watson); 402 (Bryant); 406
(Bennett); 406-407 (Lane); 409 (Adams); 412 (Johnston) ;
414 (Gray); 489 (Burgess); 491 (Messer); 495 (Johnson);
498 (Ritter); 523 (Lefevre and Walker); 526 (Davis and
Tatum); 586 (Dean); 588 (Pippin); 590 (Lawrence); 592
(Booth); 594 (Wiggins); 596 (Taylor); 628 (Lawrence); 638
(Gordon); 643 (Watkins); 647 (Leland); 683 (Fullington);
692 (McCall); 724 (Cobb); 722 (Roberts); 726-7 (Clark);
753 (Burns); 757 (Ringler); 758 (Tyler); 776 (Schwenck);
785 (Collins); 791 (Bagley); 803 (DeMarcillac); 818-19
(Brown); 824 (Eisaman). AS Mr. Bridges put it, "I don't
think there would be anybody in Polk County that hasn't

heard about it, its just that simple." (R. 391).

36. It was also not surprising that in a close-knit,

predominantly rural community like Polk County,

prospective jurors learned about the ski mask gang and the

offense they had been summoned to try from more intimate

sources than the press. Juror Tatum's wife was a member

of the same tennis club as Betty Anderson, the wife of the

homicide victim (R. 526). Juror Wiggins knew relatives of

the Andersons and talked to them after he learned that he

38

the jury to convict and to recommend a death sentence; and
(C) the prosecutor's use of peremptory challenges to
remove black jurors from the venire also unfairly shifted
the balance away from the defendant in this racially
charged capital case.

4. The evidence in this case convincingly proved
that Daniel Morris Thomas had participated in robberies
attributed to the "ski mask gang". There was little
evidence, however, that he had committed the robbery and
murder of Charles Anderson. The jury which found him
guilty and sentenced him to death for this crime was not
impartial, and its verdict is unreliable.

A. THE BIASING EFFECT OF MASSIVE PUBLICITY

5. For eighteen months before Mr. Thomas was tried
for the Anderson homicide, the news media which serve Polk
County had saturated the community with sensational
stories about a "terrorist" gang which invaded homes in
rural areas and committed violent crimes. These stories
described the group responsible for these attacks as "the
ski mask gang," "the ski mask terrorist gang," "the
Sadistic bandits," or "the masked marauders." On one
occasion an article described the group as "Black
Kluxers," referring to the Ku Klux Klan.

6. Many of these stories explicitly attributed

81

13. This report demonstrates that the in camera
inspection upon which defense counsel relied as proof that
no such report existed, despite information from a
confidential FDLE source, was false. This Court, the
Florida Supreme Court, and the federal courts which have
considered this case, were all hoodwinked. An obvious
Brady violation occurred and has not yet been corrected.

14. Due process requires the State to disclose to
the defense any material exculpatory information in its

possession, with or without a specific request. Bagley v.

United States, U.S. , 87 L.Ed.2d 481 (1985).

Evidence that Lee 0. Martin had a scar on his leg was
exculpatory, and could easily have changed the jury's
verdict. In combination with proof that Lee Martin, and
Only Lee Martin, could be connected to the murder weapon,
any reasonable juror would have voted to acquit.

15. The delay in presenting this claim is solely
attributable to the State, for it was until 1986 that

these facts were deliberately withheld, although both

should have been discovered during the trial court's in

camera inspection immediately following the trial. As

importantly, the material should have been released pre-

‘trial.

79

CLAIM V
MR. THOMAS WAS DENIED HIS RIGHT TO A TRIAL
BY A FAIR AND IMPARTIAL JURY, IN VIOLATION
OF THE SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS
l. The State and Federal Constitutions guarantee
every criminal defendant the right to a trial by an

impartial jury. Fla. Const. Art. I, Sec. 16; U.S. Const.

Amend VI; Duncan v. Louisiana, 391 U.S. 145 (1968)

(applying jury trial right to the states).

2. An impartial jury is a prerequisite to a fair
trial. This is especially true in a capital case, in
which the jury bears responsibility for deciding difficult
and emotional questions in order to arrive ata
recommendation for life imprisonment Or death.

3. The jury's deliberative process was distorted in
favor of the prosecution in this case in three different
ways: (A) community awareness of the "Ski mask gang" was
pervasive in Polk County; the trial jury, like any jury
which could have been selected in Polk County at the time,
was eager to convict and to punish any member of the "ski
mask gang," regardless of his guilt or innocence of a
particular crime; (B) the process of death qualification
and the exclusion of every juror who expressed

reservations about imposing the death penalty predisposed

80

racial motivations to these attacks. The press noted that
all of the victims of the attacks were white, and that the
assailants were black. Indeed, one victim expressed
concern that others would retaliate against "the colored
people" in Clermont, in retaliation for the attacks,
"Black Kluxers? ... Whoever They Are They Have Left a

Trail of Terror in Central Florida", Tampa Tribune,

January 16, 1976. (Exhibit 2).

7. The dominant theme in press coverage of the ski
mask gang was "terror", Virtually every headline included
the words "terror" or "terrorist." Not surprisingly, one
prospective juror, during voir dire, confused the ski mask
gang with the Patty Hearst case. (R. )«

a. Articles published in the Orlando Sentinel

(Exhibit 1) included:
"Guns Tied to Area Terrorism"
"Gun Linked to Terror; 4 Arrested"
"Terrorist Murder Charges to Be Filed"

"Terrorist Charges Filed Against Two; 5th
Jailed"

"Terrorist Charges Planned"
"No Regrets, Informant in Terrorist Case Says"
"Parole of Terrorism's Mr. X To Be Considered"

"Defender Gets Terror Suspect Help"

82


"Police Seeking Another Suspect in Terror Probe"
"Pifth Suspect Charged in Terror Probe"

"Two Indicted for Murder in Ski Mask Terrorism"
"Terror Suspect, 16, Adult Hearing Today"
"Terrorist Suspect to Be tried As Adult"

c. The Polk County Democrat published its first

"Extra" edition in its history headlined BARTOWANS

ARRESTED AS SUSPECTS IN SKI MASK TERRORIST ATTACKS, .and

filled the entire front page with stories related to the

dad. The Auburndale Star (Exhibit 5) used the

label "Marauders" in its coverage of the ski mask cases.

"Sheriff's Dept. on Full Alert for Marauders"
"Marauder Suspects Captured"
"No Marauders Charged in Anderson Murder"

e. Headlines in the Lake Wales Daily Highlander

(Exhibit 6) included:

"Central Florida Terrorists Expected to
Continue"

"Hillsborough Incident Tied to Terrorists--
Marauder Reward Fund Increases"

"Two Men, Women, Juvenile Jailed--Four Arrested
in Marauder Case"

"Additional Charges Expected in Marauder Case --
Officials Confident About Arrests"

"Charged in Connection with Polk Terrorists--
Martin to Stand Trial as Adult"

85

"Charged in Connection with 16 Attacks--Terror
Suspects Plead Innocent"

"Trial Begins Today for Ski Mask Gang"
"Ski Mask ‘Terrorist Attack' Security Heavy"
"2 Terror Suspects Charged for Murder"
"More Charges Filed in Ski Mask Case"

"Sentencing Scheduled Friday for Convicted
Terror Suspects"

"Terror Suspects Get Maximum Sentences"

"Ranging from Sexual Battery to Attempted
Murder--New Charges Filed in Terror Cases"

"Convicted for Attack on Winter Haven Family--
Terrorist to Be Sentenced Today"

"Ski Mask Terrorists Get 100 Years"

f. WVFM repeatedly used the phrases "terror"
and "ski mask gang" in its reports. (Exhibit 10).

g. WGTO TV also used "Ski mask gang" in its
coverage. (Exhibit ll).

h. WIPC radio referred to the "Ski mask gang",
"terrorist attacks", and a "wave of terrorism." (Exhibit
12).

i. WONN and WPCV radio coverage also adopted
the "terrorist" and "ski mask gang" labels. (Exhibit 13).

j. WDBO referred to the "notorious ski masked
bandits", and the "terrorists." (Exhibit 14).

k. WZNG also referred to "masked bandits

86


"4 plead Not Guilty of Terrorism"

"Accused Terrorists' Attorney to See State's
Evidence"

"Judge in Terrorist Case Says State Dragging
Feet"

"Deadline Set for More Data on Terror Suspects"

"Some Charges Dropped by State in Terrorism
Case"

"3 Plead Not Guilty in Avon Park Terror Attack"
"Trial Set in Sarasota for Terror Suspects"
"Judge Won't Sequester Jury in Terror trial"

"3 Guilty of Burglary in Home Terror Raid"
"Polk Jury to Get Terrorist Case"

"Woman Identifies Man as Terrorist"

"3 In Terror Raid Given Terms of 20 to 30 years"
"2 Terrorist Suspects Enter Innocent Pleas"
"Trial Begins Today for Polk Terrorist"

"Jury Finds Thomas Guilty in Terrorism"

"Terror Trial Defense Counsel Fired"

b. The Tampa Tribune's (Exhibit 2) coverage

included:

"Sadistic Bandits Roam Central Florida; Lake, Orange
Citizens Arm Selves"

"Terror Gang Arrest Near"
"Terror Wave Causes Requests for Lights"

"Sadistic Bandits May be Spreading"

83

"Lake Sheriff Clears Three Sadism Suspects"

"Sadistic Terrorists Said Certain to Strike
Again" |

"15 Deputies Assigned to Terrorist Case"

"State Task Force Goes After 'Savage' Central
Florida Gang"

"Terror Gang Suspects Caught"

"Terror Gang Possible Suspects in Several Area
Crimes"

"Black Kluxers?... Whoever They Are They Have
Left a Trail of Terror in Central Florida"

"Attackers Leave Terror trail"

"Terrorist Gang Feared in Hillsborough Rapes"
"Principals Forget Once Quiet Terror Suspects"
"Rural Residents Scared--And Armed"

"Terror Suspects Facing New Charges"
"Terrorism Probe Continues"

"Four Terror Suspects Said Quiet Workers"
"Four are Arrested in Terror Probe"

"Terrorist Suspect Implicated Two Others"
"Feared Gang Sought in County"

"Terror Suspects Set for Court"

"Agents Watched Terror Gang Suspect Last Year"
"Bond Cut Sought By Terrorist Suspects"

"FBI Gets Evidence in Terrorism Cases"

"Terror Suspect's Brother is Sought"


terrorizing", to terror, and terrorist attacks in its
coverage. (Exhibit 15).

8. The media organizations listed above and others
which covered the "ski mask gang" stories in detail
collectively reached a vast number of people in Polk
County, in effect destroying Mr. Thomas' chance for a fair

and impartial trial. The Ledger, with a circulation of

39,450 in Polk County, submitted newspaper articles
related to Mr. Thomas' case in compliance with a subpoena

issued by defense counsel (R. 136-37), as did the Polk

County Democrat, and the Leader, with a combined

circulation of 5,000 (R. 139), the Auburndale Star, with a

circulation of 2,712 (R. 141), and the Daily Highlander,

with a circulation of 4,200 (R. 143). On an even broader
scale, and thus more damaging to Mr. Thomas' case, was
television and radio coverage, beginning with stories of
the "ski mask gang" in 1975, and extending into 1977 (R.
145-72). WTVT, Tampa, reached 96,000 Polk County homes
with its coverage (R. 145), and WSIR radio, Winter Haven,
broadcast 53 news stories and an editorial to 135,000
homes (R. 149). WONN Radio in Lakeland and WPCV radio in
Winter Haven aired the same 46 news stories to a combined
listening audience in 150,000 homes in Polk County (R.

163-64). The diligence, intensity, and frequency with

87

which the incidents related to Mr. Thomas case were
covered is emphasized by the fact that even WFLA-TV,
Tampa, which has only an 8,000 home viewing audience in
Polk County, broadcast about 55 different stories in
reference to the case from 1975 to 1977 (R. 147-48).

9. Given the nature of media coverage, which
consistently linked a series of fifteen or sixteen crimes
together and attributed them to the ski mask gang, and
Which did little to distinguish individual charges or
individual defendants, it was not in the least persuasive
for members of the jury venire at Mr. Thomas's trial to
profess to recall few "details" of what they had read.
The jury which tried Mr. Thomas was saturated with
headlines screaming "Terror", and with radio and
television broadcasts on the same theme. The attention of
the community, and its desire for revenge, was focused on
the gang.

10. Professor Michael Radelet, of the Department of
Sociology at the University of Florida, an expert in the
"content analysis" of documents, such as newspapers, which
reflect community sentiments, examined the news reports
introduced as evidence in support of the defendant's
Motion for Change of Venue before trial. Dr. Radelet

concluded, that "[t]Jhe bulk of the headlines about these

88


defendants lumped together both them and the alleged
crimes. This was usually done with the inclusive heading
"Ski Mask Gang'. Such reporting could lead members of the
community to charge ‘guilt by association'--that is, if a
defendant is guilty of one crime he is guilty of them
eo

ll. Press coverage of Mr. Thomas' first trial also
undoubtedly had an intimidating effect on subaceuent:
juries. In this case, tried in Sarasota after a change of
venue, the jury found the defendants guilty of lesser

included offenses. After the convictions, the Tampa

Tribune described the people of Polk County as "unhappy,
frustrated and scared", and reported "[i]n random
interviews throughout the county [Polk], people responded
with bitterness, with anger and with fright at why the
defendants were convicted of lesser crimes than those for
which they were charged." (Radelet Report, Appendix kK).

12. A State representative announced plans to
cosponsor a bill making burglaries in which violence
occurs a capital felony, reflecting a belief in the
community that the "terrorist attacks" should be punished
by death, whether or not a homicide was committed.
-(Radelet Report, Appendix kK).

13. The intensity of the community response to the

89


"ski mask gang" is reflected not only in the repeated use
of the words "terror", "terrorist", "sadistic", and
"savage" in accounts of the cases, but also in reports of
vigilante activities. (Radelet Report, Appendix K). Gun
sales increased, and many dealers were sold out.

14. Individual jurors reported that the attacks
"created a lot of fear in the area." R. 383 (Pattey); "had

to go buy bars to go on my front door and put extra chains

up because my family was so frightened, not only my family
but the City of Auburndale." R. 568 (Tatum); and recalled
"big black bold letters of the ski mask gang terrorizing."
R. 643 (Watkins).

15. During voir dire, prospective jurors
acknowledged the pervasiveness of pretrial publicity. As
Mr. Lane put it, stories about the ski mask gang were
"Dretty well blasted on the air" R. 408. Mr. Bridges
agreed, "I don't think there would be anybody in Polk
County that hasn't heard about it, its just that simple."
R. 391 (emphasis added). Indeed, the trial judge assumed
that every one of the prospective jurors knew about the
ski mask gang. (R. 338).

16. Reports that the crimes had been racially
motivated, and the fact that all of the victims of crimes

attributed to the ski mask gang were white intensified the

90


Sentinel, June 8, 1976 (Exhibit 1); "Jury Finds Thomas

Guilty in Terrorism," Orlando Sentinel, September 2, 1976

(Exhibit 1); "Ski Mask Leader Gets 822 Year Term," Orlando

Sentinel, September 14, 1976 (Exhibit 1); "Four Are

Arrested in Terror Probe," Tampa Tribune, January 21, 1976

(Exhibit 2); "Jury Deliberates 90 Minutes--Ski Mask Gang

Member Found Guilty," Daily Highlander, September 2, 1976

(Exhibit 6); "Trial Set for Ski-Mask Gang Member," Daily

Highlander, January 21, 1977 (Exhibit 6); WVFM news report

no date (Exhibit 10); WGTO-TV news reports dated September
1, September 15, and December 22, 1976 (Exhibit 11); WIPCc
radio reports dated June 23, 1976, September 15, 1976,
October 29, 1976, December 22, 1976 (Exhibit 12); WONN and
WPCV radio reports dated June 23, 1976, March 20, 1977
(Exhibit 13); WBRO news report, no date (Exhibit 14); WZNG
radio news reports dated June 8, 1976; June 24, 1976;
September 2, 1976; September 13, 1976; September 14, 1976
(Exhibit 15).

18. Community feeling ran so strongly against
everyone implicated in the ski mask cases that special
security measures were ordered to prevent someone from
killing the defendants while they were in court. Indeed
the FDLE agent who arrested Mr. Thomas took precautions to

prevent him from being harmed by white officers (R. 1242).

92


No bondsman would post bond for anyone charged with these
offenses, no matter how low bond was set. "Bondsmen

Unwilling to Post for Terror Suspects’, Tampa Tribune,

February 13, 1976. (Exhibit 2).

Lo... The racial character of the "ski mask" crimes,
the "terrorist" label, and the attribution of collective
responsibility for a series of offenses dominated media
accounts of these cases. The feelings generated were so
intense that the Public Defender warned the assistants
representing the defendants in ski mask cases to be
careful of their personal safety (App. K). At oral
argument on direct appeal, Mr. Thomas' counsel
acknowledged that it had been nearly impossible to find a
lawyer willing to endure the public censure associated
with the ski mask gang.

20. News reports of Daniel Thomas' "confession" and
his conviction of other "ski mask" charges erased the
presumption of innocence. Although this evidence was
admitted at trial for the limited purpose of showing that
Mr. Thomas might have had access to the murder weapon, the
jury was exposed to dramatic accounts of his pretrial
Statements without the benefit of any limiting
instructions. "Other crimes" evidence, never admitted at

trial, dominated the guilt or innocence phase through

93

community's reaction to the offenses. (Radelet report,

Appendix L). See also "Victims Tell Their Stories", Tampa

Tribune January 23, 1976. (Exhibit 2). One rural
resident was quoted as saying: "Anybody comes up to this
door better be identified. I don't go to the door
anymore. I go to the window. With the gun. Especially
if it is a nigger. I'll aim the gun right at him till I
know who he is." "Rural Residents Scared--And Armed,"

Tampa Tribune, January 17, 1976. (Exhibit 2).

17. Many articles identified Daniel Morris Thomas as
the leader of the "Ski Mask Gang". Countless articles
identified Daniel Thomas as the leader of the "ski mask
gang." E.g., "Ski Mask Gang Member Faces More Criminal
Charges; Polk Woman Identifies Thomas," Ski Mask Defendant
Asks for Trial Site Change," "Ski Mask Defendants Plead
Not Guilty," "Gang Leader Guilty," "Ski Mask Gang Leader
Given 99 years," "Convicted Ski Mask Member Identified as

Haven Attacker," "Ski Mask Leader Arraigned," Lakeland

Ledger (Exhibit 3). These reports increased the
likelihood that a jury saturated with press accounts of
"terrorist attacks" would hold Daniel Thomas responsible
for and would punish him for every "ski mask" crime,
whether or not he personally took part in the attack.

"Thomas Faces Charges in Winter Haven Attack," Orlando

91

pretrial publicity.

21. Other articles noted that Daniel Thomas had been
on parole for prior robbery convictions and stated that he
was implicated in a total of sixteen violent crimes,
including the homicides.

22. Community awareness of, and hostility to Daniel
Thomas was so great that a fair trial was impossible. Mr.
Thomas was denied his right to trial by a fair and |
impartial jury, in violation of the sixth, eighth, and
fourteenth amendments to the United States Constitution,
and Article I, Section 16 of the Florida Constitution.

23. No court, during the previous post-conviction
proceedings, considered the evidence of the nature and
extent of the pretrial publicity submitted here, Although
this evidence was admitted in support of Mr. Thomas'
Motion for Change of venue, the exhibits were never

transmitted to the Florida Supreme Court on direct appeal,

Docket Sheet, Thomas v. State, Case No. 51,692, nor was

this evidence discussed in the briefs submitted to that
Court. No court has ever considered the relation between
the pretrial publicity in this case and the strained and
hostile relations between blacks and whites in Polk County
at the time of trial. Nor has any court ever considered

the analysis of community attitudes towards Mr. Thomas,

94

phase ever began, and could not have been excused
peremptorily as well as for cause; (2) the death
qualification process itself created expectations that the
death penalty was appropriate in this case, and that the
defendant's guilt was a foregone conclusion.

25. Extensive empirical research has been conducted
into the effects of death qualification on the behavior of
juries. This evidence shows that, regardless wherther any
individual "death qualified" juror can promise to be fair
in deciding guilt or innocence, death qualified juries in
the aggregate are more likely to convict than the kinds of
juries which ordinarily try criminal cases. This evidence
is currently before the United States Supreme Court in

Lockhart v. McCree, Docket No. 84-1865 (argued January 13,

1986). In Lockhart, the Court will render a landmark

decision resolving an issue left open eighteen years ago

in Witherspoon v. Illinois, 391 U.S. 510 (1968).

26. The voir dire of Mr. Thomas' trial jury extended
over two days and more than five hundred pages of
transcript. The questioning focused on the prospective
jurors' understanding of the procedures used to determine
the sentence in a capital trial, and upon their attitudes
towards capital punishment. The voir dire communicated a

number of messages to the jury about their role in

96

(R.

MR. FANNING: I want you to please search

your mind----

MS. GRAY: I could say no to all of the
previous questions, when it comes to the

death penalty if

I were upholding the law I

could vote for it, but I am very much afraid

afterwards, I am

a very sensitive person,

that I might worry about it personally.

MR. FANNING: In

other words, you think

because of that you would have reservations

about finding the individual guilty?

MS. GRAY: Well,

I don't have reservations

about that but probably later on, 1 am afraid
that it would bother me. So I am not sure
when it came to the last minute whether I

could, you know,

you asked if there is any

possibility and I have a problem and I am
answering you very honestly.

MR. FANNING: I believe that, and I

appreciate that.

MS. GRAY: If it
to serve, I will

is necessary that I do have
do whatever is necessary. I

am afraid afterwards it might bother me.

MR. FANNING: In

other words, you couldn't

lay aside your convictions and listen to the
law which the Court instructs you and listen

to the evidence,

which would be presented.

Could you do that?

MS. GRAY: Yes.

MR. FANNING: And if the aggravating
circumstances outweighed the mitigating
circumstances, could you recommend to the
Court sentence be death by electrocution?

MS. GRAY: Yes, but I am afraid afterwards it

would bother me,

MR. FANNING: Thank you.

328-30; Tr. 77-79).

The prosecutor excluded Ms.

98

Gray

based upon the media coverage, discussed in the report of
sociologist Dr. Michael Radelet. The interests of justice

require consideration of this new and compelling evidence.

B. THE DEATH QUALIFICATION PROCESS PREDISPOSED THE JURY IN
FAVOR OF CONVICTION AND A DEATH SENTENCE.

24. Before the jury heard any evidence to prove Mr.
Thomas guilty of a crime, the judge, the prosecutor, and
defense counsel asked each prospective juror about his or
her attitude towards capital punishment. During voir
dire, the jury acquired both accurate and grossly
inaccurate information about the penalty phase of the
trial. Death qualification denied Mr. Thomas an impartial
jury in two ways: (1) it enabled the judge and prosecutor
to remove every juror who expressed reservations about
capital punishment. Since numerous studies have shown
that persons with scruples about capital punishment are
likely to be less prosecution-prone than jurors who favor
the death penalty, the exclusion of these jurors removed a
significant group within the community and denied Mr.
Thomas of his right to a trial by a fair and
representative cross section of the community. But for
the court-authorized death qualification procedure, these

jurors would not have been identified before the penalty

95

sentencing; some of these cues were true, others, as we
will show, were completely inaccurate. The one message
which did come across loud and clear to the jurors who
were selected to sit in judgment upon Mr. Thomas' guilt or
innocence and upon his life or death, was that capital
punishment was appropriate in this case, and that the
determination of guilt or innocence was merely a prelude
to the more important penalty phase of the trial.

27. The message hit home most forcefully when the
trial judge and the prosecutor excused every single
prospective juror who expressed qualms about imposing the
death penalty. The prosecutor began to weed death-
scrupled jurors from the panel from the beginning of the
voir dire. Prospective jurors Gray, Colvin and Ritter
expressed reluctance to impose a death sentence, for
example, although each of them said their views on capital
punishment would not influence their verdict on guilt or
innocence,

Veniremember Gray said:

MR. FANNING [Prosecutor]: You heard the
questions that I asked your fellow jurors--

MS. GRAY: Yes, I did.
MR. FANNING: --about the death penalty.

MS. GRAY: Yes.


MS. GRAY: If it was up to the Court to
decide and not me personally.

4. When another prospective juror expressed a
reluctance to participate in the penalty phase, the
prosecutor reassured the juror that the ultimate
responsibility for sentencing belonged to the judge. (R.
464-65), and reminded the jury panel that the Court does
not have to follow what "you twelve people recommend,"
(R.469).

5. The Court repeated its earlier explanation of the
jury's role in the penalty phase when new prospective
jurors were seated. (Tr. 263). It did not correct the
impression that the judge could simply disregard the
jury's recommendation entirely. The prosecutor also
reminded the jury that it was only asked to render "an
advisory verdict", (Tr. 349). When yet another juror
revealed an unwillingness to vote for a death sentence,
the prosecutor again minimized the importance of the
jury's sentencing responsibility. (Tr. 404).

6. Likewise, when prospective juror Clark explained
that he could be fair in deciding guilt or innocence
despite his unwillingness to vote for a death sentence,
the Court explained to Clark that it was free to override

a life recommendation without any restriction. (Tr. 491).

120

This was manifestly incorrect. A judge is authorized to
override a jury's recommendation of a life sentence only
if "virtually no reasonable person could differ." Tedder,
supra. Based upon this misinformation, juror Clark stated
that the possibility of a death sentence would affect his
judgment in the guilt or innocence phase of the trial.
Had Clark been properly informed of the "great weight"
attached to a life recommendation, he might well have have
been willing to ignore sentencing in his decision in the
guilt or innocence portion of the trial.

7. ‘The Court's preliminary instructions to the jury

in the penalty phase reaffirmed the Court's sole

responsibility for sentencing. (Tr. 1226). Although
defense counsel argued that the trial judge would give the
jury's recommendation "great weight", this information was
presented as a matter of judicial discretion rather than a
binding legal principle. (Tr. 1265).

8. The jury was repeatedly led to believe that its
role in sentencing was less important than it really was

under Florida law. Caldwell recognizes that with the

power to participate in capital sentencing, must come a
sense of personal responsibility. The jurors must feel
that the decision for life or death is in their

conscience. In this case, however, the jurors were led to

121

believe that the only moral responsibility for sentencing
fell on the trial judge, since the jury's recommendation
carried no independent weight in the sentencing process,
The risk that, as a consequence, the jury's deliberations
over the proper sentence were less deliberate and careful
than they would have been if the juror properly understood
its role, renders the jury's verdict, and the judge's
sentence imposed in reliance upon that verdict,
"intolerably unreliable", in violation of the eighth and

fourteenth amendments.

CLAIM VII

THE TRIAL COURT'S IMPERMISSIBLE RELIANCE ON A

PRE-TRIAL COMPETENCY REPORT NOT SUBJECTED TO

ADVERSARIAL TESTING IN DETERMINING SENTENCE

VIOLATED MR. THOMAS' RIGHT TO REMAIN SILENT

AND TO CONFRONTATION AND CROSS-EXAMINATION,

CONTRARY TO THE FIFTH, SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION

1. Before trial the court ordered a psychiatric
examination of Mr. Thomas for the sole purpose of
determining competency to stand trial. The examination
was conducted by a court-appointed psychiatrist, and,
although originally requested by defense counsel, was

provided directly to the court. (Appendix S). In fact,

the court-appointed psychiatrist, Dr. Burt K. Kaplan of

122


THE COURT: Do you understand that your
sentence would be an advisory sentence to the
Court?

MS. GRAY: No, I didn't understand that.

THE COURT: OK. Do all of you understand
that if you are chosen to sit on the
sentencing portion of the jury, and in all
probability it will be the same jury that
heard the facts, you will hear certain things
presented to you after the trial is over.
There will be two trials in the event the man
is found guilty. I thought I explained that.
If you do find him guilty, there will be
another trial, a shorter trial in which there
will be presented some other evidence about
mitigating factors and aggravating factors,
and then it will be the duty of the jury to
render an advisory verdict, an advisory
sentence to the Court, either recommending
the death penalty or recommending life
imprisonment. And then it will be up to the
Court to decide whether or not to follow the
recommendation of the jury. Do all of you
understand this?

OK. MS. Gray, are you saying that you have
such feelings or beliefs, knowing that the
death penalty is a possibility that you would
not be able to find any person guilty of a
capital offense because of your feelings or
scruples or beliefs.

MS. GRAY: I guess not, if the Court would
decide it and not me personally.

THE COURT: OK. But whatever feelings that
you have, do you feel that you would be able
to lay those aside and render an opinion or
recommendation based upon the law of the case
in this particular case?

Are you shaking your head?

MS. GRAY: I guess so, Your Honor.

THE COURT: OK.

119

and bring us out food. Sometimes they would
be gone for days. When they came back they
would be bloody. If the white boys on the
east side found them, they would beat them up
and call the police. Then the police would
come, put my brothers in jail, and beat them
up more there. Daniel was five or six.

(Affidavit of Earlene Semington, App. D). Daniel's
brothers, Jessie and Arthur, went with him foraging for
food, and like Daniel, could never forget those years.
Jessie Thomas would have testified to the ten to twelve
mile treks taken by him and Daniel every single day just
so they could find food: "At night if we walked far from
home, we'd just drop and sleep wherever we were--under
houses, in barns, up under trestles, on the ground. Our
house was so bad, it didn't make much difference whether
we slept in it or out of it." (Affidavit of Jessie
Thomas, App. D). His brother, Arthur Thomas, recalls the
children going to bed at night with their bellies aching:
"Sometimes we would beg white people for pennies or
nickels so we could buy something to eat. Sometimes they
would give us a few pennies. Most times they would just
yell at us and call us 'niggers' and tell us to get off
the streets." (Affidavit of Arthur Thomas, App. D).

9. The children were abused and beaten by white kids
in the neighborhood and by police officers.

The white boys in the project would call us

burr heads and niggers and go around

1§

buildings and sneak up on us and attack us.
(Affidavit of Jessie Thomas, App. D). The beatings by
police officers produced head injuries and other serious
trauma to Daniel in his youth:

I remember one detective in particular who
did a lot of damage to Daniel, David and me.
He'd always say, 'Niggers, what you doing in
this white neighborhood?' and lock us up in
the cell. At midnight or one in the morning
when we would be groggy, he'd come and get us
out of the cell. A couple other detectives
would be with him. They would take us up to
the office up front and start slamming
Daniel's fingers in the desk drawers,
slapping and kicking on us. Daniel would cry
and we'd be hollering for mamma. They liked
to kick us on the front of our legs. Now
remember that Daniel was only a child--7, 8
years old at the most. One detective would
make him sit up and get his full attention
real close and another would sneak around him
and bust him right in the bottom of his head
at the back of the neck.

The detectives would tell Daniel and us they
were going to put us in the trash piles on
the mountain, cover us with garbage, use
gasoline and set us on fire. Then they would
tell us they'd just bulldozer over us and no
one would miss the Thomas niggers. That's
the kind of life Daniel lived through.

There was another big-stomached, short white
man who was the police. He wouldn't hit us.
He'd come in and say your father was a good
man so I don't want to hurt you. Then he'd
ask the detective, 'what you going to do with
these niggers?' The detective would say, if
they don't tell us the truth, we're going to
put them in the electric chair in the back.'
They'd ask us if we wanted to see the
electric chair and we'd start crying and
saying no. They'd say, 'Well tell us the
truth or we're gonna put you in it.' Then

20

the big stomached guy would leave. The other
detectives would just start beating and
kicking on us again.

(Affidavit of Jessie Thomas, App. D).

10. The family was eventually broken up when Daniel
was about nine years old. They were adjudged to be
neglected children on April 15, 1958 (Order, App. A), and
removed from their home. This is the clinical description
of the breakup from public welfare records:

It is said that this woman [Daniel's mother]
not only encourages her children to steal,
but steals herself. In the youth court she
was adjudged an unfit mother and custody
given to the Department of Public Welfare.

John D., the older boy, was sentenced to
Oakley Training School and remained from
August 19, 1950, to October 23, 1954. He was
discharged August ll, 1955.

At present he is serving a sentence in the
county jail for burglary, committed 1947.

Jessie and David were sent to Oakley
September 21, 1954, for stealing from several
stores. They were paroled August 13, 1956.
Because they had been arrested for stealing,
the counseler asked that their parole be
extended. They were discharged October 18,
Loo

Jessie had been sent to the county roads on
two counts of burglary. David has been
returned to Oakley for the same offense,

Eilene [Earlene] was arrested for stealing
clothes twice and on October 1, 1957, with
her brothers, Arthur, Daniel and Scott
[Caboose] admitted entering a cafe, taking
candy, cookies, toothpaste and similar
articles. Arthur has been arrested several

al

(App.

times for stealing and is now at Oakley.

Daniel and Caboose have also been arrested
many times for stealing. The older boys
carried the younger ones so that they might
crawl into gratings and windows and open
doors for the others. These little boys have
spent many nights sleeping on the ground. On
Christmas Day their mother did not know where
they were. They were placed in jail. It was
found that two of them had second degree
burns where their feet had touched embers
while they slept.

Hattie Jane Hutton, the baby, is left in the

care of the younger boys while their mother
works.

THESE CHILDREN WERE PLACED IN THE HAYNES
FOSTER HOME 5/3/58.

A).

ll. The family that had feared being separated even

more than they feared facing the suffering that was their

daily fare for five years, can now express, and could have

earlier had they been contacted, the traumatic effects the

separation had on each member. One by one, each child and

Pearl Thomas, the mother, were placed into institutions.

Earlene Semington: "One day my mother called

us all and told us that we were going to be
sent away by the welfare people. She said
she had tried to get the welfare people to
let us stay home and together, but they said
no. She said she loved us. The next day,
Mrs. Bessie Beal came and took me to a foster
home. They beat me at the foster home and
cut my face bad. I found Mrs. Beal and told
what they had done to me. Mrs. Beal had me
sent to Ellisville State Hospital.
Ellisville is for insane, retarded,
handicapped, crippled and unwanted women and

22

his family. He kept, and still keeps,
notebooks reflecting a "code language." His
use of a separate language is strikingly
consistent with schizophrenic-type conduct--a
total mental separation from society.

(Jordan report at 3, App. Vv).

4. The Diagnostic and Statistical Manual of Mental
Disorders, III, summarizes the features of the Schizotypal
Personality Disorder diagnosed by Dr. Jordan. It relates
in clear terms the gross impairment of Mr. Thomas' mental
functioning at the time of trial:

301.22 Schizotypal Personality Disorder

The essential feature is a Personality
Disorder (p. 305) in which there are various
oddities of thought, perception, speech,

and behavior that are not severe enough to
meet the criteria for Schizophrenia. No
Single feature is invariably present. The
disturbance in the content of thought may
include magical thinking (or in children,
bizarre fantasies Or preoccupations), ideas
of reference, or paranoid ideation.
Perceptual disturbances may include recurrent
illusions, deperSonalization, oF
derealization (not associated with panic
attacks). Often, speech shows marked
peculiarities: concepts may be expressed
unclearly or oddly or words used deviantly,
but never to the point of loosening of
associations of incoherence. Frequently, but
not invariably, the behavioral manifestations
include social isolation and constricted or
inappropriate affect that interferes with
rapport in face-to-face interaction.

Associated features. Varying admixtures
of anxiety, depression, and other dysphoric
moods are common. Features of Borderline
Personality Disorder (p. 321) are often
present, and in some cases both diagnoses
may be warranted. During periods of extreme

os

stress transient psychotic symptoms may be
present. Because of peculiarities in
thinking, individuals with Schizotypal
Personality Disorder are prone to eccentric
convictions, such as bigotry and fringe
religious beliefs.

Impairment. Usually some interference
with social or occupational functioning
occurs.

Complications. Psychotic disorders such
as Brief Reactive Psychosis may occur.

prevalence and sex ratio. No
information.

Familial pattern. There is some

evidence that chronic Schizophrenia is more

common among family members of individuals

with Schizotypal Personality Disorder than

among the general population.
Diagnostic and Statistical Manual III at 312 (emphasis
Supplied).

5. Dr. Jordan has noted Mr. Thomas' psychotic and
paranoid thinking which is a part of his mental
disturbance and critically impaired his ability to stand

trial. These features are well-recognized in the

literature. In the Comprehensive Textbook of Psychiatry

IV, Kaplan and Sidock, the authors note "[t]he clinical
features of a schizotypal personality represent the
borderline between schizoid personality and schizophrenia.

In schizotypal personality disorder, perceiving, thinking,

and communicating are disturbed. Like schizophrenics,

schizotypal personalities may not know their own feelings,

54


of the Tennessee Department of Mental Health and Mental
Retardation and presently the chairman of the Psychiatry
Department at Meherry Medical College. His credentials
are well-documented and contained in his Curriculum vitae,
Which is attached as Appendix V and incorporated by
reference.

3. After a thorough clinical interview and
evaluation and consideration of Mr. Thomas' background and
history, Dr. Jordan has concluded that Mr. Thomas was

suffering at the time of trial from Schizotypal

Personality Disorder with Psychotic-like Features and

paranoia, and was incompetent to stand trial. (Report of

Dr. Jordan at 4-7). Mr. Thomas' background and history is
catalogued and documented in the Appendix accompanying this
Motion, and included are those features which cause and
indicate a developing mental illness. His summary is
well-documented:

Without recounting this history in
detail, there are several features which the
scientific literature, and my experience,
recognize as hallmarks of environmental
factors which produce mental disorders.

1. Malnutrition: There is no question
that at even an early age Daniel Thomas was
malnourished. Vitamin and protein
deficiencies in early childhood, research
teaches us, directly result in nonrecoverable
damage to brain tissue. Young Daniel's
abnormally small physical structure at the

ae


age of eight is noted in welfare reports, and
is tangible evidence of his suffering from
malnutrition in his critical early
developmental years.

2. Physical Abuse, Neglect and Family
Dissolution: The repeated blows to the head
suffered by Daniel Thomas as a child, other
incidents of physical abuse, the neglect, and
break up of his family are documented in the
literature as producing schizotypal
personality disorders,

3. Early Retardation: The diagnosis of
retardation when Mr. Thomas was nine years
old reflects stunted emotional and mental
development. His low IQ., 69, (high grade
defective to low borderline) reflects that he
had suffered from a learning disability from
an early age. (current DSM = educably
mentally retarded).

4. Family History of Mental Illness:
Mr. Thomas’ mother, sister, and brother, have
all been institutionalized at some point in
their lives because of mental disturbances, a
history recognized as suggestive of mental
illness in other siblings and close
relatives.

5. Racism: Daniel Thomas was subjected
to an oppressive and racist environment in
his developmental years which naturally
caused him to have severe identity problems
and fundamentally affected his view of his
role in society. Racial discrimination, if
not the cause of his environmental
conditions, undoubtedly, exacerbated pre-
existing disabling conditions.

6. Relationships and Other Objective
Manifestations of Personality Structure. My
review of diaries and notebooks kept by
Daniel Thomas, and of family accounts, shows
the following: Daniel Thomas spoke with his
brother Scottie in a language different from
that used by those in the society at large,
and incomprehensive even to other members of

52


now on death row, Mr. Thomas took the stand
and was subjected to what he feels was racist
questioning about pictures in his possession
of white women. He was under intense
emotional stress prior to his trial in this
case, and had been totally decimated by what
he felt was a discriminatory justice system,
having been found guilty in the case tried
before this one. This series of events
triggered a deep and powerful emotional
reaction directly related to his longstanding
personality disorder and experiences in his
childhood. HIs sister, Earlene Semington,
reports his severe withdrawal and lack of
communication even with her during this time.
His failure to assist in his defense was thus
not a rational or volitional decision on his
part at all, but was the manifestation of his
schizoid typical personality disorder and
psychotic-like and paranoid thinking, that
the "system," his white attorney included,
were conspiring to "get" him.

In view of the above, it can clearly be
determined, in the opinion of this examiner,
that Daniel Thomas was incompetent to stand
trial in this case. He had no ability to
consult with his lawyer with a rational
degree of understanding and did not have a
rational, as well as factual, understanding
of the proceedings against him.

Using the specific factors relevant to
this determination, I conclude:

It is clear that he did not appreciate |
the range and nature of possible penalties
because of his disorder,

It is likely that he understands ina
cognitive sense, the adversary nature of the
legal proceedings but could not participate
because his paranoid and psychotic-like
mental condition forced him to believe his
attorney was acting on behalf of the white
system to convict him.

This examiner would also conclude the

56

Oe ee a ae ee er ee

B.

MR. THOMAS WAS DENIED AN INDEPENDENT,
COMPETENT AND APPROPRIATE EVALUATION OF HIS
COMPETENCY TO STAND TRIAL, CONTRARY TO THE
FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION

1. Defense counsel thought Mr. Thomas was mentally

ill, and sought a pretrial evaluation. The Court ordered

(pursuant to counsel's request of February 28, 1977)
appointment of Burt Kaplan, Ph.D., to perform that
evaluation. This is what Dr. Kaplan said about Mr.
Thomas' competency to stand trial:

Mr. Daniel Morris Thomas was seen on March
10, 1977, as per your February 25, 1977,
Order for a Mental Evaluation.

During the interview which lasted for
approximately one hour Mr. Thomas did not
respond verbally to the examiner. Upon
entering the room Mr. Thomas shook his head
"no" three times, seated himself, and looked
away from the examiner. For the rest of the
interview he generally ignored the examiner
by studying various aspects of the room;
however, on several occasions Mr. Thomas did
maintain eye contact with the examiner. Mr.
Thomas appeared to be alert and conscious of
the events taking place around him. He
appeared to be well-dressed, clean and
nervous. Upon being informed that the
interview was ended, Mr. Thomas left the room
under his own volition and walked back to the
area of his cell.

A discussion with several of the jailors
revealed that Mr. Thomas has been having
verbal interchanges with them, that he has
not been a management problem in the jail and
that he has been consuming his meals,

58

the


yet they are sensitive to detecting the feelings of
others, especially feelings such as anger." Id. at 972
(emphasis supplied).

They may believe themselves to have special
powers of thought and insight, or claim
unusual mystical, religious, of philosophical
experiences. Although frank thought disorder
is absent, their speech may often require
interpretation. This is due to unusual
usages of words and metaphors or to the
ambiguous meanings that they apply to
everyday terms and ideas. They may admit
that they have perceptual illusions or
macropsia or that people appear wooden and
alike. Paranoid thinking and transient,
circumscribed, psychotic symptoms
occasionally appear. If they communicate
those experiences, they may scare, awe, or
put other people off.

Kaplan and Sadock, id. at 972 (emphasis supplied).

6. The direct consequence of Mr. Thomas' mental
illness was his incompetency to stand trial. These are
Dr. Jordan's findings and conclusions:

COMPETENCY TO STAND TRIAL

I have read the testimony of Mr. Thomas'
attorneys at the time and after trial, and
Mr. Thomas' own account of his relationship
with his attorney, Dan Brawley, before trial.
He did not talk to a psychologist appointed
by the Court, or to his attorney. I have
also been informed of the intense community
interest in the case, and perceptions of its
racial overtones, and involvement of the Klan
in providing a reward. Certainly, it was in
Mr. Thomas' perception that as in his
childhood he was again the focus of intense
community hatred related to his race. [In the
trial just proceeding the one for which he is

ao


young man was not able to disclose to his
attorney pertinent facts surrounding the
alleged offense in view of his psychological
condition. We have testimony from the
attorney that Mr. Thomas would not talk to
him. His inability to talk with the
attorney, as cited above, was the direct
result of his schizotypal disorder and not a
rational decision,

In view of his mental disturbance the
fact that his attorney was a white person,
Mr. Thomas could not trust him and could not
relate to him. His confused thought
processes as indicated above, militated
against his ability to relate appropriately
to his attorney. Consequently he could not
assist the attorney in planning his defense.

In view of the above, he was also unable
to realistically challenge the prosecution
witnesses. Most assuredly, his mental
disorder caused him to believe they were his
natural enemies and that it would be
fruitless to seek to challenge them.

We have no information about his
courtroom behavior.

In view of the defendant's documented
disabling mental disorder, he was unable to
testify relevantly in his behalf, and had
little or no motivation to help himself in
the legal process. The defendant's behavior
has been characterized by an attitude of
severe withdrawal. This is certainly
manifested before and through his trial.

(Jordan Report, 5-7, App. V).
A stay and evidentiary hearing are required, and Mr.

Thomas is entitled to a new trial while competent.

CLAIM I

od

With respect to the above information we
offer the following conclusions and
recommendations.

Lis Mr. Thomas is competent to appear
before the Court. His refusal to cooperate
with his legal proceedings appears to be
voluntary and not the result of
psychopathological processes. His behavior
during the interview and in jail has not been
indicative of individuals suffering from
either psychotic depression or catatonic-
schizophrenia.

2< Since Mr. Thomas refused to
cooperate with the examiner, a definitive
statement concerning his competency at the
time of the offense cannot be offered,
However, our review of available information
concerning the offense does not indicate that
Mr. Thomas was not competent at the time of
the offense,

2. Dr. Kaplan failed to obtain any historical or
background information about Mr. Thomas, information which
is crucial to an accurate diagnosis. It was
unprofessional for any determination of competency to be
made by Dr. Kaplan without the basic historical

information all authorities agree is required for that

evaluation. It is inconceivable he would rely on the non-

communication of a client to make a diagnosis he was

competent.

It is impossible to base a reliable
reconstructive or predictive opinion solely

on an interview with the subject. The thorough
forensic clinician seeks out additional
information on the alleged offense and data

on the subject's previous alleged antisocial
behavior, together with general "historical"

a9


Dr. Kaplan's report was worthless:

it provided a misleading diagnosis that is at

stark odds with the truth of Mr. Thomas'

mental condition at the time of trial.
(Affidavit of Dr. Butts, App. U).

3. The finding that Mr. Thomas was in fact competent
to stand trial without any clinical evaluation or testing,
but instead based on a one hour non-interview and a talk
with jailers is likewise disgraceful and unprofessional.

A clinical interview or mental status examination is the
barest minimum any competent mental health professional

would utilize in making a making a determination of the

mental health of a defendant. Kaplan and Sedock, 482-499;

Affidavit of Dr. Butts, App. U. Mr. Kaplan's failure to

conduct any further inquiry in light of Mr. Thomas'
noncommunication likewise falls below any reasonable
standard of care, (Butts Report, App. U). Certainly the
kind of response Mr. Kaplan was getting from Mr. Thomas
would tip most anyone off that some deep-seated emotional
disorder was at work.

4. Dr. Kaplan's jaundiced and half-hearted non-
evaluation is probably best explained by the fact that he

was a county employee and had previously been retained by

the Florida Department of Law Enforcement to assist in Mr.

‘Thomas' apprehension and prosecution. He had already

offered an opinion about Mr. Thomas' mental condition

61


information on the defendant, relevant
medical and psychiatric history, and
pertinent information in the clinical and
criminological literature. To verify what
the defendant tells him about these subjects
and to obtain information unknown to the
defendant, the clinician must consult, and
rely upon, sources other than the defendant.

Bonnie and Slobogin, The Role of Mental Health

Professionals in the Criminal Process: The Case for

Informed Speculation, 66 U.S. Law Review 427 (1980).
(Emphasis supplied). Accord, Kaplan and Sedock,

Comprehensive Textbook of Psychiatry, at 550. American

Psychiatric Association, "Report of the Task Force on the
Role of Psychiatrists in the Sentencing Process," Issues

in Forensic Psychiatry, 262 (1984); Pollock, Psychiatric

Consultation For the Court, 1 Bull. Am. Accd. Psycl. at

267, 274 (1974); H. Davidson, Forensic Psychiatry, 38-9

(2d Ed. 1965). As Doctor Butts has attested in his report
contained in Appendix U, the dismal failure to obtain
historical data fell well below the standards of the

mental health profession. In this case, Dr. Kaplan's
negligence left him without critical information that

[pointed] uniformly to several classic
precursors to mental illness: malnutrition,
intense economic deprivation, retardation,
early family dissolution, physical and
emotional abuse as a child, the use [by Mr.
Thomas] of an unintelligible language, and
[his] exposure to an incredibly oppressive
and traumatic racist environment throughout
his early life. Without this information,

60


prior to meeting Mr. Thomas. His evaluation was not only

incompetent, but biased. This is what he told the state:

January 15, 1976

Mr. Alfred Albright

Florida Department of Law Enforcement
3319 Maguire

Lexington Building, 2nd Floor, Wing Cc
Suite 258

Orlando, Florida 32803

Dear Mr. Albright:

The following is a summary of our conclusions
based on our evaluations of the reports you
submitted to us concerning the spree of
terrorist crimes in Central Florida. Our
conclusions are tentative and are open to
modification as additional information is
made available to us.

1. The subjects seem to display a
general contempt towards whites but do not
appear to be doing their actions out of a
racist crusade.

aie We could not find any evidence to
indicate that the subjects are acting on the
basis of membership in political or religious
movements,

i We feel that financial gain is one
of the primary motives for the crimes.

4, The subjects appear to be hostile
individuals with a low frustration tolerance,
a need to exploit and to control, anda
tendency towards impulsivity. They appear to
have a general hatred towards both people and
things or society. This is evidenced by
their behavior in ransacking and destroying.
We feel that the actions are fulfilling a
need for both financial gain and for the
expression of hostility and destruction.

62

5. We feel that the sexual attacks are
incidental to the robbery motives and are
basically an expression of the hostility
needs of these individuals.

Ss We feel that the locations chosen
are probably random and that chance has
dictated that all the victims have been
white. As an extension of this line of
thought, there have probably been other B &
E's in which the victims have not been at
home.

% We feel that the subjects probably
live in rural areas.

8. We feel that these are marginal
individuals who have probably been in trouble
with the law previously. They have probably
been dropouts from school and have displayed
in the past patterns of aggression, hostility
and an inability to get along with others.

9. Their behavior patterns can be
likened to similar patterns displayed in the
past by members of such organizations as
motorcyle gangs. What we are referring to
here are the patterns of behaviors displayed
by individuals who live on the margins of
society and who have a general disdain for
both society and other individuals who are
not similar to themselves.

10. We feel that a direction of
possible investigation should center on the
identification of individuals from non-urban
backgrounds who have a past history of
aggressive, hostile, impulsive behaviors
either as juveniles or adults.

Respectfully submitted,

/s/
Burt E. Kaplan
Clinical Psychologist
Director of Forensic Services

BEK/1b

63

C£f-A-0l, the trial court stated:

THE COURT: Counsel, you know, you assert
that. It's so very difficult because of the
apparent limiting language for me to, you
know, to see that there could be a reasonable
interpretation where mitigation was to be
unlimited. All of the words, you know,
really seem to suggest limited aggravating,
limited mitigating. And I understand your
assertion; but I'll tell you, you know, up
front, it's hard for me to see--

MR. BURR [counsel for Mr. Harvard]: Sure.

THE COURT: --that other so-called reasonable
interpretation.

MR. BURR: Right what appeared to Your Honor
was the reasonable interpretation, was that
they were limited.

THE COURT: Right.

Transcript of Hearing of Aug. 26, 1985, at 12-13, State v.

Harvard, No. 74-173-CF-A-01. The trial court made the

same observation in State v. Spaziano, NO. K-75-430-CFA

(Tr. attached).

5. During the 3.850 hearing in this case, the court
will recall trial counsel also testified he felt limited
in his investigations and presentation of mitigating
circumstances at the time of trial. (3.850 Tr. 32).
There are record indications this court also at the time

of trial, thought evidence in mitigation was limited to

those factors in the statute. During initial instructions

to the jury, the court noted there were seven statutory

66

(Apps?.%):.

5. In the face of his previous retention by the

State in this case and pre-formed opinion, Dr. Kaplan

could not have produced an independent evaluation of Mr.
Thomas' competency. In fact, he did not. The
Constitution requires more, even for indigent criminal
defendants.

6. The conclusion that Kaplan's incompetence and
bias prejudiced Mr. Thomas is inescapable. Mr. Thomas
was, in fact, incompetent to stand trial (Report of Dr.
Jordan, App. V). Kaplan didn't know it, not because Mr.
Thomas' mental disorder did not exist, but because Dr.
Kaplan's biased, unreasonable and unprofessional conduct

precluded him from seeing it.

CLAIM II

THE TRIAL COURT WAS UNCONSTITUTIONALLY

RESTRICTED IN ITS CONSIDERATIONS OF

MITIGATING CIRCUMSTANCES CONTRARY TO THE

EIGHTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

1. There has been little dispute that jurists and
attorneys throughout this state reasonably interpreted
Florida's statute to restrict evidence of mitigating

circumstances to those listed at the time Mr. Thomas was

tried in this case.

64

2. During its preliminary consideration of the
initial 3.850 motion, the trial court expressed an
interest in this issue, saying:
THE COURT: Let me ask either one of you with
regard to the mitigating circumstances that
Mr. Thomas claims could have or should have
been raised with regards to the matters in
the motion about his childhood was that
point raised an appeal, that I denied him the
right to introduce those mitigating, not
Statutory mitigating circumstances?

(Tr. of 3.850 proceeding et 13).

3. Since this court first considered the limitation
on mitigating claim, significant decisions of the Florida
Supreme Court and United States Court of Appeals for the
Eleventh Circuit have fundamentally altered the law, and

recognized this is now an. appropriate claim for purposes

of post-conviction relief. Harvard v. State, 1l F.L.W. 55

(Fla. Feb. 6, 1986); Songer v. Wainwright, 769 F.2d 1488

(llth Cir. 1985) (en banc). These cases will be discussed
in detail in the memorandum of law accompanying this
motion,

4. The Florida Supreme court, and trial judges in
this state, have recognized that Florida decisional law
was reasonably interpreted between 1975 and 1978 to limit
mitigating factors which could be considered to those

listed in the statute, In State v. Harvard, No. 74-173-

65

argued to the jury as the major source of mitigation, but
never considered by this court.

b. The testimony of Officer Richardson about Mr.
Thomas's beatings as a child, and his high emotional
reaction. While the court considered such testimony, it

held only that it did not rise to the level of a Statutory

mitigating circumstances it clearly could have been
considered as a non-statutory mitigating circumstance,
c. The privation, poverty, abuse, neglect,
malnutrition and oppressive racist environment to which
Daniel Thomas was subjected as a child, and his
retardation, summarized in the introduction, are all
powerful non-statutory factors in mitigation never
considered in determining the propriety of his death

sentence,

CLAIM III

THE TRIAL COURT AND JURY WERE DEPRIVED OF
CONSIDERING EVIDENCE IN SUPPORT OF NON-
STATUTORY MITIGATING FACTORS BECAUSE OF TRIAL
COUNSEL'S REASONABLE BELIEF HE WAS LIMITED IN
HIS INVESTIGATION AND PRESENTATION OF
MITIGATING CIRCUMSTANCES, CONTRARY TO THE
EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION

1. This claim, like the other "limitation" claim,

was raised in the initial petition. It is clear, however,

68

mitigating factors (R. 467-8). It listed only statutory
mitigating factors in its sentencing order (R. 1592-6),
and instructed the jury only on mitigating factors listed
in the statute (R. 1504), (1546-8). The court also
refused to permit the testimony of Wilbert Lee after
concluding "he did not have information relevant to these
particular cases." (R. 1531-2) It permitted the
testimony of Officer Richardson in penalty phase only

because it thought it might be relevant to a statutory

mitigating circumstance. (R. 1526).
6. Had the court considered non-statutory mitigating
circumstances, it would have found:

a. Doubt as to guilt: The evidence at trial was

entirely circumstantial and pointed equally to another
person. If Lee O. Martin had been sitting where Daniel
Thomas was, he would be the person on death row today.
There was no identification of the perpetrator of the
offense except for welts on his legs and that he was
black. Lee 0. Martin is black, and as later determined,
had welts on his legs. The murder weapon was found in Lee
O. Martin's home, not Daniel Thomas's. The perpetrator
had on a blue ski mask. A blue ski mask was found in Mr.

Martin's home. Only a black cap, with one hole, was found

in the home of Daniel Thomas. Doubt about guilt was

ee

believed the death penalty statute limited
mitigating evidence to those factors listed
in the statute. It was in part because of
this limitation I did not conduct an
extensive inquiry into Mr. Thomas' childhood
and background to attempt to discover and
present mitigating evidence at the penalty
phase of his trial.

3. I have recollected my testimony at the
evidentiary hearing conducted during the
initial Rule 3.850 proceeding in this case to
the best of my ability. During that hearing,
I testified there were reasons for not using
mitigating evidence related to Mr. Thomas'
background. I also testified I would have
used meaningful background information in
mitigation had I known it existed.

4. I have recently examined and reviewed
background information provided to me by Mr.
Malone, who is Mr. Thomas' present attorney.
This material is contained in the soft-bound
volume entitled Index to Background Materials
for Daniel Thomas. That information is as

follows:

a. Juvenile, family and county welfare
records from Clarksdale and Coahoma Counties,
Mississippi, including a psychological
evaluation by Dr. Lillian S. Wolfe,
Psychologist, Division of Child Welfare,
Coahoma County, Mississippi.

b. Affidavit of Jessie Thomas
c. Affidavit of Earlene Semington.
qd. Affidavit of Arthur Thomas.

e. Correspondence and memorabilia of
Daniel Thomas.

£» Studies on nutrition and mental
health,

5. After reviewing the above evidence, I
am absolutely convinced I would have

70

that the Court's decision was, and is, based on a false
premise that has only now been brought to the attention of
the Court.

2. Trial counsel testified during the evidentiary
hearing in this case that he believed, as did most Florida
attorneys, that he was limited to presenting in mitigation
only evidence relevant to factors listed in the death
penalty statute, (3.850 Tr. 32). That fact, standing
alone, would have been sufficient to require a new
sentencing hearing with a showing of prejudice. However,
trial counsel also testified he would not have used the
background evidence he had seen because it would have
lessened his credibility with the jury on his "residual
doubt" defense. (3.850 Tr. 33-34). This alternative
reason is the major basis on which Mr. Thomas' significant
constitutional claim has been rejected. We now know,
however, that trial counsel would have used non-statutory

evidence related to Mr. Thomas' background if he had

known, as he now does, that meaningful evidence existed,

3. Mr. Brawley's affidavit is attached, and he
states the following:
l. I was the attorney who represented
Daniel Morris Thomas in his trial on first-

degree murder and related charges.

2. At the time of trial in April, 1977, I

69


(Tr. 115-216).

The elimination of any juror who opposed the death penalty
continued throughout jury selection. For example, the
Court asked prospective juror Clark:

THE COURT: All right. Now you understand, as
I have explained to the other jurors, about
the two part trial? you have a first trial
where you determine the guilt or innocence,
and then you have a second trial, in the
event you find him guilty of first degree
Murder, to determine what sentence to
recommend. Do you understand that procedure?

MR. CLARK: I understand that procedure, but I
am opposed to capital punishment.

THE COURT: Okay. Do you feel that because of
the beliefs which you have about capital
punishment, do you believe that that would
affect your deliberations in the first part
of the trial?

MR. CLARK: Well, no, sir, it wouldn't.

(R. 727; Tr. 470). The prosecutor questioned Mr. Clark
further about the effect of his opposition to capital
punishment on his ability to be impartial in the guilt or
innocence phase of the trial. After clarifying the
relationship between the guilt or innocence determination
and sentencing, the prosecutor asked:

MR. FANNING: All right. If you were picked

as a juror, sir, you would be sworn, given

an oath, and part of that oath would require

you, Sir, to follow the law that His

Honor would instruct you that is applicable

to this case. Could you follow the law His
Honor tells you that you must follow in this

107

the death penalty to tell the truth about it,
my personal thoughts, I don't think there
should be capital punishment.

THE COURT: You don't think we ought to have
it?

MR. COLLINS: Right.

THE COURT: You say the law is the law and we
do have it?

MR. COLLINS: Right.

THE COURT: Can you accept that regardless of
any personal feelings you have about it?

MR. COLLINS: Right.

THE COURT: Could you sit and decide whether
or not the defendant or any person was or was
not guilty of a crime based upon the facts
you hear, would it influence you to know that
if you found him guilty there was a
possibility that he would go to the

electric chair?

MR. COLLINS: Well, it would be a hard
decision, you know.

THE COURT: ... Would the fact that there is a
possibility of the death penalty being
imposed affect your deliberations as to the
guilt Or innocence in the first part of the
trial?

MR. COLLINS: No, sir.
(R. 789-790, 792; Tr. 532-33, 535). The State then struck

Mr. Collins. (Rv /98:.Tr.541).

32. Overall, the primary focus of the questioning of

110

case or would you have some hesistancy about
it? Even if you didn't agree with the law,
you thought it was wrong, would you follow
the law that his Honor instructed you to
follow?

MR. CLARK: I don't know whether I would or
not.

(R. 737-38; Tr. 480-81). Defense counsel then inquired:

MR. BRAWLEY: Mr. Clark, I will put you on the
Spot. I think what Mr. Fanning is getting at
and what we are all trying to get at is,
throughout the trial you are going to hear
evidence and Mr. Fanning is going to ask
questions of witnesses and I'm going to ask
questions of witnesses, throughout the whole
trial there's going to be a lot of evidence
put in. Now, my client is charged with four
offenses: robbery, burglary, murder in the
first degree, and rape. First degree murder
can be punishable by death. If at the end of
this trial and after all the evidence is in
and the State has proved to you beyond a
reasonable doubt that Daniel Morris Thomas is
guilty of murder in the first degree, could
you find him guilty of first degree murder,
even, notwithstanding the possibility that
the judge might later on give him the death
penalty? If they proved it to you, could you
find him guilty of it even though he might
get the death penalty later? That's the
point we're getting at. Can you Simply, will
you listen to the evidence and bring a
verdict back, you think, if the evidence
proves it?

Mr. CLARK: I imagine so.

MR. BRAWLEY: You think you could do that even
if there is a possibility that the judge
might later on impose the death penalty? you
understand that you don't impose the penalty,
you only make a recommendation to the Court,
and the Court later, not the first part of
the trial, but could you do your duty as your
Sworn to do and find a true verdict based on

108

co ne ee ee le

the evidence in the first trial?

MR. CLARK: Yes sir, if I could in truth find
him guilty.

(R. 738-740; Tr. 481-483). The Court then told the jury
that "regardless of what the jury recommends ... I can
impose the death penalty?" (R. 748; Tr. 491). Based upon
this misleading question, which failed to inform the
jurors of the important role the jury's decision plays in
the sentencing process and the "great weight" it carries
in the judge's determination of the proper sentence, Mr.
Clark then told the judge "That's right" when asked if he
would find the defendant "not guilty for that reason,
because you don't want to see him get, face the
possibility of the electric chair." (R. 749; Tr. 492).
31. The State dvcuses Mr. Clark by a peremptory
Challenge. (R. 750; Tr. 493). It did the same to a
prospective alternate juror, Mr. Collins, who also
expressed opposition to the death penalty. (R. 790; Tr.

533). The Court posed the following questions:

THE COURT:... DO you have such beliefs about
the death penalty or would the fact that the
death penalty is a possibility in this case,
now would that fact interfer[e] with your
decision about whether or not Mr. Thomas was
guilty or not guilty?

MR. COLLINS: It wouldn't interfer[e] with my
decision, but as far as the death penalty, I
have to go against it. I don't believe in

109

Tampa Division. Mr. Thomas is presently scheduled to be
executed on April 15, 1986 at 7:00 a.m. No stay has been
ordered.

Daniel Morris Thomas, by his undersigned counsel,
petitions for a writ of habeas corpus. Respondent's
custody over Mr. Thomas, and the sentence of death to be
carried out on April 15, 1977, are unlawful, for the
following reasons:

I) Mr. Thomas was incompetent to be tried;

II and III) The trial court and jury did not
consider overwhelming evidence in mitigation of sentence
because Florida law appeared to preclude consideration of
non-sSstatutory mitigating circumstances;

IV) The prosecution suppressed exculpatory evidence,

in violation of Brady v. Maryland, 383 U.S. 73 (1963);

V) The trial jury was not fair and impartial; the
deliberative process was biased in favor of the state by
(a) inflammatory pretrial publicity which saturated the
community; (b) the process of death qualification and the
exclusion of every juror who expressed reservations about
capital punishment; (c) the state's systematic exclusion
of black prospective jurors by peremptory challenge;

VI) The trial judge misinformed the jury about its

responsibility for sentencing, in violation of Caldwell v.


>

PETITION FOR WRIT OF HABEAS CORPUS

UNDER 28: U.S.C. SeCrion. 2254

Prisoner's name: Daniel Morris Thomas
Prison number: 033647
Place of confinement: Florida State Prison, Starke, FIL,

EN TRE UNITEDsSTATES DISTRICT COURT
BOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DANIEL MORRIS THOMAS, Civil Action.No.

Petitioner, EMERGENCY:

BAeCULEON LS IMMINENT.
DEATH WARRANT
EFFECTIVE APRIL 9-

16, 1986. EXECUTION
SCHEDULED FOR 7:00

A.M... APRIL 15, 2336

V.

LOUIE L. WAINWRIGHT, Secretary,
Florida Department of Corrections,

Respondent,

eee eee eee eee ae ae

PETITION FOR WRIT OF HABEAS CORPUS
BY PERSON. IN. STATE CUSTODY
To the Honorable William Terrell Hodges, Chief Judge

GE the District Court for.the Middle District of Flori a4.

Klan Leader to Speak at Parents Meeting", Lakeland Ledger,

August 18, 1977. Rogers was the one who presented a Klan
check for one thousand dollars to confidential informant
Samuel Lee Coleman, as a reward for Coleman's efforts to

identify the "ski mask gang", (Transcript of broadcast of

WZNG radio, Winter Haven, Florida, June 10, 1976, Exhibit

15). Even as late as 1979, the Klan maintained a visible

presence in Polk County. "Klan Gathers Peacefully in

Lakeland", October 14, 1979; "Klan to March in Lakeland

With Permission, But No Permit", December 13, 1979; "Klan

|

Plans 'To Let Folks Know We're Around'", January 13, 1979;

"Klan Still Plans to Hold Rally", September 26, 1979.

(App. G).
22. There was other powerful evidence of continuing

discrimination. Some local bars continued to refuse

service to blacks and to "mixed company". "Lounges Admit

Racial Discrimination", Lakeland Ledger, March 3, 1974;

"Amusement Devices Are Key to Civil Rights Case", Lakeland

Ledger, March 4, 1974. Even now, "[t]Jhe quality of life
for black people in Polk County is different from and

lesser than that for white people in all measurable ways,
from unemployment to infant deaths to income." (Affidavit
of James Austin, App. F). In 1977 a black child born in

Polk County was two and one half times as likely to die

29

Caxton Doggett, App. F). When Justice Marshall arrived in
Orlando to begin work on the Groveland case, he was
greeted by a torchlight Ku Klux Klan parade. R. Kluger,

Simple Justice, 561 n.* (1980).

18. Central Florida has responded slowly to the
Civil Rights movement and changes in the law governing

race relations. Despite the historic Brown decision, Polk

County schools did not begin desegregation until 1969.
When a group of blacks announced, shortly after the
passage of the 1964 Civil Rights Act, that they intended
to enforce their rights under the Act, they encountered
strong resistance. (Affidavit of James Austin, App. F;
Affidavit of Robert Austin, App. F). In the 1960's, a
group of thirteen black children went to a movie in Lake
Wales. A mob surrounded the theatre and pelted the
children with rocks and bottles. (Affidavit of James
Auletin, -Appei.:P).

19. Segregation held sway in the courthouse as well
as the movie house. The Rev. J.E. Atkins was the first
black man to sit on the main floor of the courtroom in the
Hall of Justice in Bartow, the city where Daniel Morris
Thomas was tried. The presiding judge told Rev. Atkins

that he should sit up in the balcony, as black people had

always done. (Affidavit of Rev. J.E. Atkins, App. F).

at

before his or her first birthday than a white child. Id.
In 1980, the black unemployment rate was 7.4%; nearly
double the rate for whites. Id. The vast majority of
blacks who found jobs in Polk County found low paying
menial work. In 1970, 64.3% of all employed blacks worked
as laborers or in service occupations. Only 1.9% of
employed whites worked in these jobs. Blacks in Polk
County had completed an average of 10.8 years of
schooling, as compared to 12.4 years for whites. White
students were much more likely to complete their education
and to graduate from high school, even in 1980.

23. Blacks were attracted to Polk County and Central
Florida by the promise of employment, a promise that never
came true. Many of them, like Daniel Morris Thomas, found
themselves working under brutal conditions for meager
wages. Crew chiefs offered jobs with good pay and then
kept workers in camp by force and intimidation when their
offers proved to be untrue. AS one editorial writer
noted, the migrant labor system which existed in Florida
was "tantamount to slavery." Governor's Briefing,
Advisory Council on Farmworker Affairs, January 18, 1984,
Attachment III (App. I). "Modern slavery's most common

form involves migrant workers. They sign on with a crew

leader and when they try to leave, he refuses to let them

30

20. Racial tensions ran high in the early 1970's.
The Ku Klux Klan was very active, and black leaders had to
risk violence. The home of the local NAACP leader in
Winter Haven, Rev. J. E. Atkins, was shot into, and the
home of James Austin, the NAACP president in Lake Wales,
was set afire, (Affidavit of Rev. J.E. Atkins, App. F;
Affidavit of James Austin, App. F). There were riots in
the schools when court-ordered integration began.
(Affidavit of Robert Austin, App. F). Klan leaders called
for a boycott of county schools to protest integration.
"Klan Leader Backs Boycott of Polk Schools on Monday",

Lakeland Ledger, May 16, 1970.

21. The Ku Klux Klan remained active throughout the
1970's. In 1971 the Klan launched a full scale membership

drive. Lakeland Ledger, March 9, 1971. See also "Klan

Trys [sic] Comeback in Polk", Lakeland Ledger, March 7,

1969. Grand Dragon John Paul Rogers, the leader of the
Florida Klan, is from Lake Wales in Polk County. [In 1975
Rogers led a parade through the uakelahd Mall intended to
bring in new recruits for the Klan. "Klan Visits City"

Lakeland Ledger, March 19, 1975. In August of 1977, four

months after the trial of Dan Thomas, Grand Dragon Rogers
was invited to speak to a meeting of Lakeland parents

concerned about a recent desegregation order. "Florida

28

attempted to present much of it in mitigation
at Mr. Thomas' trial. The documented
evidence of his poverty, malnutrition,
neglect, abuse and retardation in his
childhood and youth in public records,
Supported by testimony of family members,
with or without expert psychiatric opinions
would, in my opinion, have been extremely
persuasive to the jury and judge at the
penalty phase of Mr. Thomas' trial. It would
have been consistent with my presentation of
an argument that some doubt as to guilt still
remained, and could have argued that as an
alternative to the jury. Because of the
persuasive value, presentation of this
evidence would not have reduced my
credibility with the jury.

(Affidavit of trial counsel, Appendix R).
4. The affidavit is consistent with Mr. Brawley's
testimony at the 3.850 hearing, in which he states: "If

there had been enough really meaningful information from

him about his background that might have explained why he

did what he did, if the jury believed he committed the
crime, then I would have gone and presented it. But we
didn't have that, based on the information that I had."
(3.850 Tr. at 38). It is also consistent with what
counsel actually accomplished at trial: he called
Detective Richardson to the stand, and elicited from him
information about Mr. Thomas' physical abuse as a child.
That testimony was offered and admitted, however, only
because of its relevance to the statutory mitigating

circumstance of emotional stress at the time of the

7.

offense.

i

Any thoughtful and rational person would be moved

by the magnitude of the privation suffered by Mr. Thomas

as a child, and by the incredibly harsh and brutal

circumstances in which he had to survive. The background

referred to is contained in the Introduction of this

motion.

It is established in powerful fashion not only

through the statements of family, but through documented

records

summary:

1.

2%

made at that time. This is what it shows in

He experienced the traumatic death of his father
at an early age;

He suffered repeated physical abuse;

He had to look for food in garbage cans and beg
for money;

He had no parenting to speak of;

He was malnourished, retarded, and suffered a
Speech impediment;

He was beaten and tortured by every authority
figure with whom he had contact;

He was subjected to the oppressive and racist
conditions which unquestionably existed in
Mississippi;

By the age of six, he had to sleep in the woods,
under houses, or in barns, and would come "home"
bloody and battered;

He was beaten by white police officers and

children, and called a "nigger" throughout his
early life;

72

10. His Mother was an alcoholic and was
institutionalized for a mental illness from
which she later died;

ll. His sister and brother have been diagnosed as
mentally ill from being subjected to the very
conditions to which Daniel was exposed as a
child.

6. The most dramatic proof of the relationship
between Mr. Thomas' deprived and brutal childhood and his
subsequent history is the fact that Daniel Thomas'
brother, Scott Thomas, has been treated on numerous
occasions for severe mental illness. Scott Thomas was on
Alabama's death row in Hollman State Prison, Hollman

Station, Alabama, until his sentence was vacated in light

of Beck v. Alabama, 447 U.S. 625 (1980). (Florida Parole

and Probation Commission Memorandum, App. BE).

7. No sentencer, judge, jury, or appellate court has

ever had an opportunity to review the propriety of a death

sentence in light of the horrible and heart-rending
bestialities to which this young child was exposed. It
would have unquestionably altered the outcome of the

sentencing proceeding.

CLAIM IV
THE STATE FAILED TO DISCLOSE MATERIAL

EVIDENCE, IN VIOLATION OF THE SIXTH, EIGHTH
AND FOURTEENTH AMENDMENTS

3

1. The theory of the defense at trial was that the
attack on the Anderson home, committed by a lone
assailant, had been perpetrated by a member of the ski
mask gang other than Daniel Thomas. This explained the
defendant's access to some of the property taken during
the robbery, and it was entirely consistent with all of
the other relevant physical evidence.

2. Mrs. Betty Anderson testified at trial that the
man who attacked her was 6'2", (Tr. 749). He was
muscular, with broad shoulders and narrow hips. Id. She
could not see any facial hair. (Tr. 750). The man forced
her to touch him all over. On his legs she felt something
that appeared to be scars or welts. (Tr. 751). The man
wore a medium blue ski mask. (Tr. 745).

3. Her statement given to the Sheriff's Department

pretrial starkly demonstrates how tenuous any

identification of a black man by this witness really was:

Q. Ok, and in talking, listening to him
talk, was he, his voice up and down, was it
steady...

A. No, it was rather steady and it was
rather modulated and a_little more educated
than the general run of niggers.

* * *

Williams: Did any others, did [you notice]
any other smells, like any oil or anything
like that, aftershave lotion?

74


(App.

Girls.

The hospital kept black women on one side of
it and white women on the other. I learned
to be alert at all times or else I could get
knocked up side the head or attacked by the
crazy women there. After six months, the
matron said I had to go work in the vegetable
canning plant. I was thirteen. They paid me
35 cents a week. [I stayed there three years.
Each night, they would come and get me and
lock me up again. I kept trying to find my
brothers and sisters by writing letters.

One day the matron said they were sending me
to Jackson State Hospital. She told me that
my Sister had been trying to find me and my
brothers and then she gave me my sister's
address. She made me promise not to tell or
she would get fired. The next day they sent
me to Jackson State Hospital on a special
annex. I found my mother there, They had
locked her up. I smuggled a letter out to my
sister and she came and got Momma and me. We
went home to Meridian."

Jessie Thomas: "I got sent to Parchman for

six years. The white guards at Parchman
would make me climb a tree with no branches
by shooting their guns under my feet. They
put me in punishment. I got half a slice of
bread and water three times a day."

Arthur Thomas: "I was nine and I was put by

myself in a cell a jail cell. I didn't know
what happened to Roger, who was seven and
Daniel. All I knew was that they didn't put
girls in the same cell as boys. I wanted to
know what happened to my brothers and sisters
but no one would tell me."

Pearl Thomas: She was placed in Jackson

State Hospital, and later died of alcohol
induced insanity.

D).

Daniel Thomas: Young Daniel was placed into

23


a foster home along with his brother, Scotty,
when he was eight years old. Upon their
arrival, the psychologist noted neither had
"accepted ways of social living", and that
both "had apparently never been to school nor
even owned a pair of shoes." They learned
employment skills: "As this is the cotton
picking season, they are learning the
importance of work and a healthy aspect
toward gaining a desirable end." By the age
of nine, Daniel Thomas, was finally to "learn
simple reading and spelling", although the
overall prediction for his development into
an adult was "even though these boys have
exhibited much growth in all areas, it is
extremely doubtful if they could ever be
considered adaptable in view of their mental
retardation.”

(App. A) (emphasis supplied).

12. Psychological testing conducted while young
Daniel was in the custody of the welfare board showed he
had an I.Q. of 69--he was mentally retarded. (App. A).
Both Daniel and Scotty also had speech impediments. (App.
A).

13. Notable in the public records at the time was
the tangible evidence of the physical and mental
impairments suffered by Daniel Thomas from years of
malnutrition. Even by July 1969, welfare records show
Daniel Thomas was abnormally small for his age, a clear
Sign of the effects of malnutrition. (Public Welfare
Report of July 2, 1962, App. A).

14. While the official documents describe in

sanguine terms the "improvement" in the social and

24


Haven.

B. Life in Polk County

16. Daniel arrived in Florida, on his own, with no

Skills and little education. He worked in the fields

until he got a job at the Cypress Gardens resort. [In 1968

Daniel responded to a letter from his sister Ida, and
drove back to Meridian, Mississippi, to bring Ida and her
family to Winter Haven with him. Daniel borrowed money
from his boss, found his sister's family a place to live,
and bought them some food to eat, (Affidavit of Ida
Jordan, App. D). Ida earned money as a migrant worker
until she settled on a job in a canning factory.

17. Winter Haven offered slave wages for menial,
hard, long labor. Polk County was no different from the
rural Mississippi area from which Daniel had come. Polk
County is adjacent to Lake County, the site of the
celebrated Groveland rape case. Justice Thurgood
Marshall, then a young attorney for the NAACP Legal
Defense Fund, came to Lake County to represent four young
black men accused of raping a white woman. Justice
Marshall was not allowed to rent a hotel room in the

county seat. Community feeling was very much against the

defendants, and two of them never even made it to trial;

the sheriff shot them on the way to court. (Affidavit of

26

cultural adjustment of Daniel and Scotty Thomas, the
reality was that these two young, fatherless black
children, supposedly learning to pick cotton to enhance
their character, were performing the equivalent of slave
labor. Daniel and his brother were beaten at this foster
home. (Affidavit of Arthur Thomas, App. D). Records
reflect both Daniel and Scotty complained about their
mistreatment (report of Dec. 11, 1962, App. A), and were
soon told they had "worn out their welcome in this home."
(App. D). It was later recommended they be placed ina
"less formal and strict home." (Rept. of 12/21/62, App.
A). When Daniel tried to run away, he was sent to a
juvenile reformatory, Oakley Training School, May 26,
1964, which also relied on black children to perform
labor. He ran away in 1964. It was during this time
Daniel and Scotty began talking to each other in a
language unintelligible even to close family members.
(Affidavit of Earlene Semington, App. D; Affidavit of
Jessie Thomas, App. D). He uses this "code" language to
this day. (App. W).

15. In August, 1965, at the age of 16, Daniel, along
with his two brothers, John and Arthur, signed up to work
as migrant laborers in New York. The three later moved to

Florida, Arthur and John to Sebring and Daniel to Winter

25

peremptorily (R. 426-27; Tr. 174-75).

28.

Similarly, veniremember Colvin clearly could

have fairly deliberated on guilt:

MR. FANNING: - »« © How do you feel about
the death penalty, ma'am?

MS. COLVIN: How do I feel?

MR. FANNING: Well, providing the State
proves beyond a reasonable doubt Mr. Thomas
is guilty, would you retire and deliberate
and find Mr. Thomas guilty knowing all of the
time, you understand that one of the possible
sentences is that His Honor can impose upon
Mr. Thomas if he is found guilty of murder in
the first degree is death by electrocution;
you understand that?

MS. COLVIN: yes.

MR. FANNING: He could also sentence him to
life imprisonment but he could also sentence
him to death. Would that affect your
deliberations? aa

MS. COLVIN: No.

MR. FANNING: You have mo reservations about
that, even that much, even that much?

MS. COLVIN: (Shakes head).

MR. FANNING: You feel that the State of
Florida and the people of the State of
Florida, if the State of Florida proves
beyond a reasonable doubt this individual is
guilty of murder in the first degree, you
feel that the State of Florida has the right
to take that person's life?

MS. COLVIN: No.
MR. FANNING: You don't think they have that
right?

39


MR. FANNING: All right. Let me ask you
this, Ms. Colvin: if His Honor instructed
you, providing that the twelve of you ladies
and gentlemen do find the defendant guilty
of murder in the first degree--then there's
another proceeding, the proceeding really
doesn't have anything to do with the trial,
it is more of a sentencing proceeding--would
you render an advisory verdict as to whether
or not the defendant either could be
sentenced to death, two alternatives if he
were found guilty of murder in the first
degree, one, he be sentenced to death by
electrocution and the other alternative is
that he receive imprisonment in the state
penitentiary for the rest of his life. Okay?
His Honor is going to instruct you as to the
various things that you take into
consideration in determining whether or not
you render an advisory opinion to the judge
to whether or not he should be electrocuted
or whether he should be sentenced to life
imprisonment. He is going to instruct you as
to what is called aggravating circumstances,
and what I mean by aggravating, I mean
certain factors that make the crime worse.
He is going to instruct you as to mitigating
factors. Certain factors that don't make the
crime so bad. He is going to instruct you
that if you find that the aggravating
factors outweigh or are more than the
mitigating factors, then you should find and
recommend to the Court that the defendant be
sentenced to death. Do you think you could
do that and listen to what the judge said as
to the law and if the State shows that the
aggravating factors are more in number and
outweigh the mitigating factors, could you
render an advisory verdict to His Honor
recommending the defendant be sentenced to
death? Could you do that?

MS. COLVIN: I don't know.
MR. FANNING: You are going, excuse me,

ma'am, but you are going to have to search
your mind because the only way that I know

101

how you think and how you feel is by what

you tell me. When you say I don't know, I'm
no better off than I was before. you think
you could do that? Could you sit in judgment
of somebody knowing they could be executed?

MS. COLVIN: Yes.
(R. 448-453; Tr. 195-99). The State struck Colvin
peremptorily. (R. 504; Tr. 251).

29. Veniremember Ritter was questioned in this way:

MR. FANNING: You remember I explained to you
the ultimate decision as to the sentence of a
person convicted of first degree murder, the
only thing you twelve people would do if you
did find him guilty of that, you would listen
to evidence and make a recommendation to the
Court, to His Honor whether or not you would
either recommend the death penalty or you
would recommend life imprisonment. But His
Honor does not have to follow that
recommendation. His Honor is the one who
makes the final determination as to what the
sentence is. So all you are, if you will,
you act as twelve advisors to the Court. But
His Honor makes the final decision on

whether or not, what the sentence is going to
be,

Let me ask you if the State of Florida
proves, if I prove as a representative of the
State of Florida, that the Defendant was
guilty of murder in the first degree beyond a
reasonable doubt, understand that's what I am
faced with, that burden of proof beyond a
reasonable doubt, and you went back to
deliberate, would you have the thought back
in your mind somewhere way, way back--and be
honest now, please--that if I found that
gentleman guilty of murder in the first
degree, that there was a possibility that he
might die, would you be thinking of that at
all?

MS. RITTER: Yeah.

102

MS. COLVIN: No.

MR. FANNING: Ms. Colvin, I am not trying to
belabor the point, you understand I am not
trying to embarrass you, please understand,
all right?

MS. COLVIN: (Nods head.)

MR. FANNING: But I believe you said that
knowing the person possibly could be
sentenced to death wouldn't have any effect
upon your reaching a verdict, right?

\

MS. COLVIN: No, it wouldn't.

MR. FANNING: Ma'am, are you opposed or do
you approve the death penalty?

MS. COLVIN: Oppose the death penalty.
MR. FANNING: You oppose the death penalty?
MS. COLVIN: (Nods head.)

MR. FANNING: Would that affect you when you
are deliberating after all the evidence is
presented and all the testimony, after all
the argument of the two attorneys and after
His Honor instructs you as to the law that
you have to apply in this case and you go
back, the twelve of you deliberate and you
decide, all twelve of you have to decide, the
twelve of you have to decide guilty or twelve

of you have to decide not guilty, when you
were doing this would you be more, would you
tend more to find Mr. Thomas guilty or not
guilty because of knowing that he could be
electrocuted?

MS. COLVIN: 7 26n’ t think 60.

MR. FANNING: It wouldn't affect you there
but you are opposed to the State taking
somebody's life?

MS. COLVIN: Yes, I am.

100


and travel expenses to secure the testimony of witnesses
who may be outside the jurisdiction; and

12. That Petitioner be allowed other, further and
alternative relief as the Court deems just, equitable and
proper under the circumstances.

Respectfully submitted,

LARRY HELM SPALDING
Capital Collateral Representative

MARK EVAN OLIVE
Litigation Director

STEVEN H. MALONE

Assistant Capital Collateral
Representative

MICHAEL A. MELLO

Assistant Capital Collateral
Representative

DAVID ADAM REISER

Assistant Capital Collateral
Representative

Office of the Capital Collateral
Representative

Independent Life Building

225 W. Jefferson Street

Tallahassee, Florida 32301

(904) 487-4376

uns@l for Petitione

CERTIFICATE OF SERVICE

127

the facts and matters therein set forth and alleged;
and that each and all of these facts and matters are

true and correct.

Sc Cisorrchese: yr4 * uy. ions’)
DANIEL M. THOMAS

SWORN TO AND SUBSCRIBED before me this £© day of

April, 1986.

NOTARY PUBLIC

My Commission Expires:
NOTARY PUBLIC, SiAIZ OF FLORA
My Commissiun Expires Apr, 2, 1989

I hereby certify that a true and correct copy of the
foregoing has been furnished by hand delivery to Theda R,
James, Assistant Attorney General, Park Trammell Building,
1313 Tampa Street, Suite 804, Tampa, Florida, 33602, this

/.2%4%. day of April, 1986.

wa

128

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

Civil Action No,

DANIEL M. THOMAS,

Petitioner,

Vv. EMERGENCY: DEATH WARRANT SIGNED
FOR APRIL 9 - APRIL 16, 1986.
LOUIE L. WAINWRIGHT, EXECUTION PRESENTLY SCHEDULED
FOR 7 A.M., APRIL 15, 1986.
Respondent.
/
VERIFICATION
STATE OF FLORIDA )
) ss.
)

COUNTY OF BRADFORD
BEFORE ME, the undersigned authority, this day
personally appeared DANIEL M. THOMAS, who, being first
duly sworn, says that he is the Defendant in the above
styled cause, that he has read the foregoing Petition

For Writ Of Habeas Corpus and has personal knowledge of


Mississippi that summer. In searching for the bodies of
the Philadelphia victims federal agents found several
unidentified corpses. One of these, the body of a 14-
year-old boy wearing a CORE T-shirt, was found floating in

the Big Black River." H. Raines, My Soul is Rested, 266

n.* (1977). (App. B). Daniel Thomas was six when white
men kidnapped and murdered Emmett Till in Money,
Mississippi, about 100 miles from Meridian. s. Booker,

Black Man's America, 167-68 (1964). (App. C). Brutality

was a fact of life for a black man or boy in Mississippi.
2. Poverty was also pervasive. In 1964, Mississippi
had the highest infant mortality rate in the United
States, 59 percent higher than the nation as a whole. [In
1965, the death rate for black infants was more than
double that for whites and was increasing, while the rate

for white infants was declining. Hunger and Malnutrition

in America, Hearings Before the Subcommittee on

Employment, Manpower and Poverty, Committee on Labor and

the Public Welfare, United States Senate, 90th Cong., lst

Sess. (1967) 13-14 [hereinafter cited "Hunger and

Malnutrition"] (Testimony of Dr. Brenner). Malnutrition
was in large part responsible for the high death rate, as
well as for many chronic health problems afflicting black

children in Mississippi in the early 1960's. "The main

10

G. Mr. Thomas filed an original Petition for a
Writ of Habeas Corpus and an Application for a Stay of
Execution to the Supreme Court of Florida on ADril-4a,
1986. The Court denied the petition on April 7, 1986.

Thomas v. Wainwright, $0.24 (Fla. 1986). Mr.

Thomas has filed a petition for a writ of certiorari to
review this decision in the Supreme Court of the United
States and an application for a stay of execution pending
review of the petition. To date, the Supreme Court has
not acted on the petition or the stay application.

4. On April 10, 1986, Mr. Thomas filed a Motion to
Vacate Judgments and Sentences pursuant to Fla. R. Cr. P.
3.850 in the Circuit Court in and for Polk County. At the
time of this writing, that Court had not acted on the
Motion or the accompanying application for a stay of
execution. No stay has been entered by any court, state

or federal.

Introduction

"These little boys [Daniel and Scotty] have
spent many nights sleeping on the ground. On
Christmas Day their mother did not know where
they were. They were placed in jail. It was
found that two of them had second degree
burns where their feet had touched embers


while they slept,"

Department of Public Welfare records, Re: Daniel and
Scotty Thomas, December 7, 1959. (App. A).

Most times, they would just yell at us and
call us "niggers" and tell us to get off the
streets,

Affidavit of Jessie Thomas, (App. D).
Williams: Did any others, did [you notice]
any other smells, like any oil or anything
like that, aftershave lotion?

A: No, just nigger odor.

Williams: What type of impression did you
get as far as his age?

A: - « »« I'm an ex-bank teller, but I

couldn't begin to tell you the ages of

niggers. I just couldn't.
Pretrial identification given by victim, Betty Anderson,
to Polk County Sheriff's Office, Bartow, Florida, Jan. 2»
1976. (App. X).

The impoverished, brutal, and racially discriminatory
circumstances which Daniel Thomas survived in his
childhood and the racially charged atmosphere in which he
stood trial in this case, are two critical periods in his
life which are relevant to three of the claims Petitioner
raises here: his competency to stand trial, the lack of
individualized sentencing occasioned by the limited
consideration of his background at trial, and the racial

discrimination and partiality infesting his conviction and

sentence of death. Mr. Thomas was convicted in a "they

all look alike to me" prosecution: any black male at
defense table who had any connection to the series of
crimes and convictions preceding this celebrated
prosecution would have been convicted, (Affidavit of John
R. Howes, App. J).

Statement of Facts

The facts recited here are relevant to several of the
claims presented. To avoid repetition, this statement is
incorporated in each of the specific claims for relief.

A. Growing Up in Mississippi

1. Daniel Morris Thomas was born in Meridian,
Mississippi, in Lauderdale County. He grew up in a
Mississippi where white people fiercely resisted any
changes in an age-old system of peonage and oppression.
When Daniel was growing up, black people still worked land
owned by white men, as Sharecroppers or hired help. White
people maintained the social order: white on top and black
on the bottom by the threat, and frequent use, of
violence. Michael Schwerner came to Mississippi in 1964,
when Daniel was 15, to run the CORE office in Meridian,
Daniel's home town. Schwerner, along with James Chaney
and Andrew Goodman, was found dead under an earthen dam
outside Philadelphia, Mississippi, 30 miles from Meridian.

"There was an abundant supply of black bodies in

been identified as a member of the ski mask gang in the
press (R. 317, 570). The vast majority of the prospective
jurors acknowledged subscribing to at least one of the
local newspapers which had covered the ski mask gang and

the subsequent prosecutions in depth, such as the Tampa

Tribune (Pattey (R. 377); Mathews, (R. 385); Bridges (R.

389); Messer (R. 491); McCall (R. 692)), the: Lakeland

Ledger (Mathews (R. 385); Bridges (R. 389); Bryant (R.
402); Adams (R. 409); Lefevre (R. 575); Cobb (R. 724));

and the Orlando Sentinel (Leland (R. 647); Burgess (R.

489); Bryant, (R. 402)). Nevertheless, the court
concluded that a change of venue was not necessary, and
denied the defendant's motion (R. 572).

39. Along with pretrial publicity, the main
preoccupation of the judge and counsel was the penalty
phase. The judge told the prospective jurors that anyone
whose opposition to the death penalty was such that they
could not return a verdict of guilty in a capital case,
was unsuitable to serve as a juror. (Tr. 27, 178, 264,
433).

40. The trial judge repeatedly explained the
bifurcated trial procedure. (Tl, 37, 39e SO,” LTS, 263,

336, 387, 390, 396, 434, 430, 440, 451, 468, 470, 498,

520). He asked each prospective juror if they had

41

had been called for jury service about the case (R. 594).
Juror Leland's brother knew the Andersons as well. (R.
647). After the jury had been sworn, one juror who had
been selected admitted that he was the uncle of Leslie
Smith, a victim in one of the previous ski mask cases and
a State's witness in the Anderson homicide trial (R. 574-
76). He learned that Smith would be a witness after
discussing the case with his mother over the telephone (R.
578).

37. Perhaps the most revealing admission that
publicity had saturated Polk County with information about
the "ski mask gang" came in a joking exchange between the
trial judge and prospective juror Schwenck:

MR. SCHWENK: Your Honor, I have been aware
for over a year of the perpetration of a
Crime or a series of crimes by persons
unknown, and it wasn't until yesterday
morning, when I heard your statement to the
prospective jurors, the details of this case,
THE COURT: Okay, sir. Have you formed or
expressed any opinion about the matter from
anything you heard outside of this courtroom?

MR. SCHWENK: No, Sir.

THE COURT: It's my understanding that you
have not read anything at all about it?

MR. SCHWENK: No, sir.

THE COURT: You haven't seen anything on
television about it?

MR. SCHWENK: No, Sir.

39

THE COURT: And where have you been for the
last year or so?

MR. SCHWENK: I have been busy.
Because the court refused to permit individual voir dire,
defense counsel had to be content with superficial
responses to questions about pretrial publicity. Any
probing question which revealed prejudicial information
would contaminate the entire venire. Most jurors simply
stated that they did not recall any details of the stories
they had heard or read about the "ski mask gang." The
impression many jurors did take away from the press
accounts was one of terror. Juror Bryant recalled he
"wished they would get caught, whoever it was that was
guilty, and they would pay for it" (R. 404). Juror Pattey
recalled "only that it created a lot of fear in the
community" (R. 383). Juror Tatum said he "not only read
about it, as you know, an awful lot of us lived through
it. And never in my life have I had to go buy bars to go
on my front door and put extra chains up because my family
was so frightened, not only my family, but the City of
Auburndale" (R. 568). Juror McCall remembered that the
"Ski mask gang has been terrorizing" homes (R. 692).

38. The end result of the voir dire was that the

jury was repeatedly informed that Daniel Morris Thomas had

40

scruples against the death penalty. (Te. Ary Bly 53,54,
55, 178, 264, 331, 334, 446, 338, 385, 392, 393, 394, 396,
433, 434, 437, 438, 449, 464, 466, 498, 499, 500, 502,
521). The judge told the prospective jurors that anyone
whose opposition to the death penalty was such that they
could not return a verdict of guilty in a capital case was
unsuitable to serve as a juror. (PP coe pe tIS, 264, 433).

41. The voir dire also gave the prosecutor the
opportunity to saturate the jury with a dangerously
inaccurate statement of the law governing the imposition
of capital punishment in the State of Florida, which also
predisposed the jury in favor of a guilty verdict and a
sentence of death. Over and over, the prosecutor asked:
"Do you feel that if the State proves an individual guilty
of murder in the first degree that the people of the State
of Florida has [sic] the right to take that person's
life?" (Tr. 187, 279, 346, 352, 357, 366, 398-9, 407, 448,
508). Florida law, of course, requires a great deal more.
It requires proof beyond a reasonable doubt that specific
aggravating circumstances exist, that those aggravating
circumstances outweigh any mitigating circumstances and
that death is the appropriate punishment. These comments,
however, diverted the jury's energies from the

determination of guilt or innocence to the sentencing

42

MR. FANNING: You would?
MS. RITTER: I think so.

MR. FANNING: Would you be more apt, knowing
that, to find the defendant not guilty?

MS. RITTER: No.

MR. FANNING: Could you obey, and I mentioned
before if you are picked as a juror you are
sworn, His Honor will swear you, and one of
the things you are going to swear is that you
are going to follow the judge, His Honor

will instruct you when the thing is over
before you go to deliberate as to the law in
this particular case, would you feel that you
could follow that law?

MS. RITTER: Yes.

MR. FANNING: Even though you didn't think it
was good law?

MS. RITTER: Yes.

MR. FANNING: Even if you didn't agree with
it?

MS. RITTER: (Nods head.)

MR. FANNING: And we know now, ma'am, you're
not going to agree with one part of it
because he is going to instruct you that if
you find the defendant guilty, remember we
talked about the second part of the thing?

MS. RITTER: (Nods head.)

MR. FANNING: The second stage of the
proceeding or whatever, part of the law that
he is going to instruct you is aggravating
and mitigating. If the State shows this is
an especially atrocious heinous crime and
other factors, I believe seven factors, if
the State shows that and those seven factors
outweigh or are of bigger number than the

103

mitigating factors, he is going to tell you
that you should recommend----

MR. BRAWLEY [Defense Counsel]: I am going to
have to object. the numerical reference is
not correct as far as the statement of
aggravating versus mitigating facts.

THE COURT: You mean the number that he
stated is incorrect?

MR. BRAWLEY: Yes, sir. Mr. Fanning seems to
be saying that number wise that if one
outweighs the other----

THE COURT: I don't believe, my recollection
was Mr. Fanning, if I am not wrong, said the
statute provided for about seven types of
circumstances; is that----

MR. BRAWLEY: I believe that Mr. Fanning said
if the aggravating factors outweigh the
mitigating factors or are the greater number,
and I don't believe that is the law.

THE COURT: Okay. I will sustain the
objection to the effect that it really
doesn't make any difference as to the number,
just confine it to the aggravating outweigh
the mitigating and leave it at that,

MR. FANNING: All right, sir.

His Honor is going to instruct you to the
aggravating and mitigating circumstances. If
you find that the aggravating circumstances
outweigh the mitigating circumstances, he is
going to instruct you that you should
recommend, it is only a recommendation, I
just said His Honor is the one who makes the
final determination as to what the sentence
is. He is going to instruct you if the
aggravating circumstances outweigh the
mitigating circumstances that you should
recommend to the Court the defendant be
sentenced to death by electrocution. Would
you follow those instructions or would you
have a little problem?

104


MS. RITTER: I would.

MR. FANNING: You would?

MS. RITTER: (Nods head.)

MR. FANNING: Would it bother you?

MS. RITTER: Yes, it would bother me.

MR. FANNING: When you were discussing it
among the twelve of you, would you be
thinking a week from now or a month from now
you shouldn't have done it or something like

that?

MS. RITTER: No, I just hate to be
responsible for taking anybody else's life.

MR. FANNING: But remember I said----

MS. RITTER: But I could do it.

MR. FANNING: His Honor makes the final
determination.

MS. RITTER: Yes.

MR. FANNING: He doesn't even have to follow
what you twelve people recommend. He's the

one that has the ultimate responsibility. Do

you think you could do that?

MS. RITTER: Yes, I think I could.

MR. FANNING: Do you feel--let me ask you,
I'm not trying to single you out or anything,
you understand that. Like I told someone
else, that is the only way. I wish I was
Clairvoyant but I'm not. This is the only
way I can get to know you people a little
better. How do you feel about this
proposition if the State proves a defendant
Or an individual guilty of murder in the
first degree, do you feel that the State, the
people of the State of Florida has the right
to take that person's life?

105


MS. RITTER: yes, like I said before, I
believe in it but I have to be responsible
for it. I would do it but to say it wouldn't
bother me, I don't think I could, to be
honest.

MR. FANNING: I appreciate that.
(R. 465-70; Tr. 212-17). The prosecutor excluded
veniremember Ritter by peremptory challenge. (R. 504; Tr.
251).

30. The Court likewise excused prospective Juror
Bennett for cause, based on his ambiguous answers to
questions concerning his ability to be an impartial juror
in a case involving the death penalty. Although Mr.
Bennett vacillated when questioned by the prosecutor and
the trial court (Tr. 88, 169-72), he stated that he would
find Mr. Thomas guilty of first degree murder if the
charge was proven:

MR. BRAWLEY: Ok. Mr. Bennett, with regard
to your answers to Mr. Fanning and the
Court's questions regarding the death
penalty, if the State proved my client guilty
to the exclusion of every reasonable doubt,
could you set aside any personal feelings you
have, and just go with the guilt or
innocence, could you find him guilty of first

degree murder? If the State proved his
guilt.

MR. BENNETT: I imagine.

MR. BRAWLEY: Would you do so if the State
proved guilt.

MR. BENNETT: Right.

106

These children would need blood transfusions
before any corrective surgery could be done--
and we found in child after child the need
for surgery; hernias; poorly healed fractures;
rheumatic and congenital heart disease with
attendant murmurs, difficult breathing, and
chest pain; evidence of gastro-intestinal
bleeding, or partial obstruction; severe,
Suppurating, ear infections; congenital or
developmental eye diseases in bad need of
correction.

The teeth of many children were in awful
repair--eaten up by cavities and poorly
developed. Their gums showed how severely
anemic these children are; and the gums were
sometimes infected and foul smelling.

Many of these children were suffering from
degenerative joint diseases. Injuries had not
been treated when they occurred. Bleeding

had occurred, with infections. Now, at seven
Or eight, their knee joints or elbow joints
might show the "range of action" that one
finds in a man of seventy, suffering from
crippling arthritis.

In child after child, we tested for
peripheral neuritis--and found it, secondary
to untreated injuries, infections, and food
deficiencies. These children could not feel
normally--feel pressure or heat or cold or
applied pain the way the normal person does.
What they do feel is the sensory pain that
goes with disease; pricking, burning, flashes
Or sharp pain, or "a deep pain", as one child
put. Te.

The children were plagued with colds and
fevers--in a Mississippi late May--and with
sore throats. They had enlarged glands
throughout the body, secondary to the several
infections they chronically suffer. Some of
them revealed jaundice in their eyes, showing
that liver damage was possible or hemolysis
secondary to bacterial invasion.

14

cause of lack of resistance is malnutrition. The food
available to them lacks the vital components that are
necessary to build healthy bodies that can develop
resistance against disease," Id at 16. The effects of
chronic malnutrition were felt in the mind as well as in
the body. "[O]ne sees how persistently sickness and
hunger in children live on into adults who doubt any
offer, mistrust any goodness or favorable turn of events
as temporary and ultimately unreliable. " Id. at 25
(testimony of Dr. Coles). As one expert put it, "I fear
that we have among us now in this country hundreds of
thousands of people who have literally grown up to be
tired, fearful, anxious and suspicious in some basic and
tragic sense simply unbelieving." Id. Mental disorders
related to malnutrition were common. Id. (Testimony of Dr.
Walwyn). The overall effects of poverty and malnutrition
on black children growing up in Mississippi were

astounding:

MISSISSIPPI'S HUNGRY AND SICK CHILDREN

In Delta counties (such as Humphreys and
Leflore] recently visited by us and elsewhere
in the state (such as Clarke, Wayne, Neshoba,
[adjacent to Lauderdale County] and Green
counties, also visited by us) we saw children
whose nutritional and medical condition we
can only describe as shocking--even to a
group of physicians whose work involves daily
confrontation with disease and suffering. In

ll


child after child we saw evidence of vitamin
and mineral deficiencies; serious, untreated
Skin infections and ulcerations; eye and ear
diseases, also unattended bone diseases
secondary to poor food intake; the

prevalence of bacterial and parasitic disease,
as well as severe anemia, with resulting loss
of energy and ability to live a normally
active life; diseases of the heart and the
lungs--requiring surgery--which have gone
undiagnosed and untreated; epileptic and
other neurological disorders; severe kidney
ailments, that in other children would
warrant immediate hospitalization; and
finally, in boys and girls in every county we
visited, obvious evidence of severe
malnutrition, with injury to the body's
tissues--its muscles, bones, and skin as well
as an associated psychological state of |
fatigue, listlessness, and exhaustion.

We saw children afflicted with chronic
diarrhea, chronic sores, chronic leg and arm
(untreated) injuries and deformities. We saw
homes without running water, without
electricity, without screens, in which
children drink contaminated water and live
with germ-bearing mosquitoes and flies
everywhere around. We saw homes with
children who are lucky to eat one meal a
day--and that one inadequate so far as
vitamins, minerals, or protein is concerned.
We saw children who don't get to drink milk,
don't get to eat fruit, green vegetables, or
meat. They live on starches--grits, bread,
Kool-Aid. Their parents may be declared
ineligible for commodities, ineligible for
the food stamp program, even though they have
literally nothing. We saw children fed
communally--that is by neighbors who give
scraps of food to children whose own parents
have nothing to give them. Not only are
these children receiving no food from the
government, they are also getting no medical
attention whatsoever. They are out of sight
and ignored. They are living under such
primitive conditions that we found it hard to
believe we were examining American children

12

of the twentieth century.

In sum, we saw children who are hungry and
who are sick--children for whom hunger is a
daily fact of life and sickness, in many
forms, an inevitability. We do not want to
quibble over words, but "malnutrition" is not
quite what we found; the boys and girls we
Saw were hungry--weak, in pain, sick, their
lives are being shortened; they are, in fact,
visibly and predictably losing their health,
their energy, their spirits. They are
suffering from hunger and disease and
directly or indirectly they are dying from
them--which is exactly what "starvation "
means.

SPECIFIC MEDICAL OBSERVATIONS

We have the following specific medical
observations to report. They were made--be
it remembered--on children who are not in
hospitals and not declared "sick" by any
doctor. They are, in fact, children who are
getting absolutely no medical care. [In
almost every child we saw in the above six
counties during our visits in the May 27-30
period, we observed clinical evidence on one
Or another parasitic disease. Most children
we saw had some kind of skin disease; dryness
and shrinkage of skin; severe sores;

rashes; boils, abcesses, and furuncles;
impetigo; rat-bites. We saw children ina
state of negative nitrogen balance; that is,
a marked inadequacy of diet has led the body
to consume its own protein tissue. What we
saw clinically--the result of this condition
of chronic hunger and malnutrition--was as
follows: wasting of muscles; enlarged
hearts; edematous legs and in some cases the
presence of abdominal edema (so-called
"Swollen" or "bloated" belly); spontaneous
bleeding of the mouth or nose or evidence of
internal hemorrhage; fracture unrelated to
injury or accident and therefore quite
possibly the result of osteoporosis, a
weakening of the bone structure; fatigue,
exhaustion, and weaknesses.

13

the culprit.

47. Prosecutors linked Mr. Thomas to some of the
proceeds of the robbery. Lattie Mae Thomas testified that
Daniel had given her a watch which fit the description of
the watch stolen from Mrs. Anderson (Tr. 937). A
calculator and a rifle stolen from the Andersons were
found in a search of 115 Wheeeler Street, where Daniel
Thomas lived with his ex-wife. A tackle box was found in
a search of a Chevrolet Monte Carlo registered to Daniel
Thomas. The state also introduced Daniel's admission that
he participated in the robbery of the Smith family, during
which the murder weapon was stolen. The court refused to
admit evidence that Lee 0. Martin had also confessed to
this crime.

48. The evidence introduced was overwhelming proof
that Daniel Thomas had, indeed, been a member of the "Ski
mask gang." Only this would explain his possession of
some of the stolen articles. yet other evidence pointed
away from Daniel Thomas and to Lee 0. Martin. The pubic
hair found in Mrs. Anderson's shower did not match Daniel
Thomas. Mrs. Anderson described the mask her assailant

wore as "medium blue." The mask found in Daniel Thomas'

-house was black. Lee O. Martin was the one who used a

blue ski mask. The murder weapon was found in Lee O.

46


phase.

42. This was not the end of the misinformation about
sentencing conveyed to the jury during voir dire. The
trial judge repeatedly advised the panel that the final
determination of the sentence was solely the province of
the Court, and that the jury's recommendation was not
binding. §(TE.GR, 290, 314; Tr. 54, 83, 177, 263, 336,
391, 491). The prosecutor made the same point. (Tr. 204,
212, 215, 216). While both of these observations were
literally true, they were misleading, because the jury's
recommendation is an important part of the capital
sentencing process, which must receive great weight in the
judge's decision. Similarly, during voir dire the jury
was told that it must return a recommendation by a
Majority vote, although under Florida law six jurors could
recommend life imprisonment. (Tr. 452).

43. Every prospective juror who expressed
reservations about the death penalty was removed from the
jury, either for cause or by peremptory challenge. In
all, the trial judge removed one juror for cause on the
basis of his reservations about capital punishment,
although the juror had éaboraea to a direct question
whether he could find the defendant guilty if guilt was

proven beyond a reasonable doubt with, "Right", (Tr. 115-

43

16), and the prosecutor struck four more. R. 504
(Colvin); R. 504 (Ritter); R. 798 (Collins); R. 750
(Clark).

44. Significantly, the death qualification process
excluded four black jurors: Bennett, Colvin, Clark, and
Collins. (Affidavit of victoria E. Loft, App. W). The
effect of death qualification in this case accords with
studies which have shown that blacks are more likely than
whites to oppose capital punishment and are
disproportionately excluded by death qualification. Louis
Harris & Associates, Inc., Study No. 2016 (1971). No
black juror was chosen to serve on the original jury
panel, although one was selected as an alternate juror and
served when two jurors were disqualified the first day of
trial. R. 610 (Juror Brown sworn). In addition to
Collins, Colvin and Clark, the prosecutor peremptorily
challenged prospective jurors Burgess (R. 334) and Watkins
(R. 658). In all, the prosecutor used six of fourteen
peremptory challenges to remove black jurors from the

panel.

G. The Evidence At Trial

45. The evidence at trial showed that a black male
wearing a medium blue ski mask entered the home of Charles

and Betty Anderson on January 1, 1976. He shot Mr.

44

Anderson with a .22 caliber rifle during a struggle and
then sexually assaulted Mrs. Anderson. The man ransacked
the house, taking a tackle box, a rifle, a .38 caliber
pistol, a calculator, and a watch from Mrs. Anderson.
Investigators lifted fingerprints at the scene, but no
evidence of a print matching those of Daniel Morris Thomas
was introduced (Tr. 738). A Negroid hair was found in the
drain of the Anderson's shower, where the assailant feuced
Mrs. Anderson to wash herself after the assault. fThis
hair did not match samples taken from Mr. Thomas (Tr.
1060). Although it would have been possible to test the
sperm collected from Mrs. Anderson in order to determine
the assailant's blood type, this test was never performed
(Tr. 694). |

46. The assailant did tell Mrs. Anderson he was a
member of the "Ski mask gang" (Tr. 752). The question for
the jury was: which one? Daniel Morris Thomas, as the
jury knew from the voir dire as well as the pervasive
pretrial publicity, had been named as a member of the
gang. At trial, the prosecution introduced evidence that
Daniel Thomas had admitted to two ski mask burglaries.

And yet, the jury heard as much evidence implicating

another convicted member of the "Ski mask gang"--Lee Otis

Martin--as evidence pointing to Daniel Morris Thomas as

45

(Affidavit of Victoria E. Loft, Appendix W). Only one
black juror was not removed from the panel by a peremptory
challenge. She served on the panel after two jurors were
excused for cause after the jury had been sworn. The
removal of black jurors deprived Mr. Thomas of both the
appearance and the reality of a fair trial.

38. The State excused prospective jurors Burgess,
R.334, Colvin, R. 449-52, Clark, R.727-749, nasa, Re
658, and Collins, R. 733. No black member of the venire
was permitted to serve on the panel originally selected to
try Mr. Thomas.

39. This was a racially charged case, which had
aroused a great deal of interest and hostility in Polk
County. The press seeriburee the attacks to racially
motivated terrorism by blacks against whites. Because of
the history of racial conflict in Polk County, the
exclusion of black jurors from the panel removed the
jurors most likely to be sympathetic to mitigating
evidence about Mr. Thomas's background, and least likely
to impose a death sentence based upon non-statutory
aggravating circumstances such as the racial aspect of the
crime.

40. As Mr. Thomas would prove at the evidentiary

hearing he requests in this case, there is overwhelming

114

the prospective jurors concerned their willingness to
impose the death penalty. The trial judge repeatedly
explained the bifurcated trial procedure, (Tr. 37, 53,
56, 176, 263, 336, 387, 390, 396, 434, 430, 440, 451, 468,
470, 498, 520). He asked each prospective juror if they
had scruples against the death penalty. (Tr. 47, 51, 53,
54, 55, 178, 264, 331, 334, 446, 338, 385, 392, 393, 394,
396, 433, 434, 437, 438, 449, 464, 466, 498, 499, 500,
502, 521). The judge told the prospective jurors that
anyone whose opposition to the death penalty was such that
they could not return a verdict of guilty in a capital
case, wasS unsuitable to serve as a juror. (Tr. 27, 178,
264, 433).

33. The voir dire also gave the prosecutor the
opportunity to saturate the jury with a dangerously
inaccurate statement of the law governing the imposition
of capital punishment in the State of Florida, which also
predisposed the jury in favor of a guilty verdict and a
sentence of death. Over and over, the prosecutor asked:
"Do you feel that if the State proves an individual guilty
of murder in the first degree that the people of the State
of Florida has [sic] the right to take that person's
life?" (Tr. 187; 279; 346; 352; 357; 366; 398-9; 407; 448;

508). Florida law, of course, requires a great deal more.

lll

It requires proof beyond a reasonable doubt that specific
aggravating circumstances exist, that those aggravating
circumstances outweigh any mitigating circumstances and
that death is the appropriate punishment. These comments,
however, diverted the jury's energies from the
determination of guilt or innocence to the sentencing
phase,

34. This was not the end of the misinformation about
sentencing conveyed to the jury during voir dire. The
trial judge repeatedly advised the panel that the final
determination of the sentence was solely the province of
the Court, and that the jury's recommendation was not
binding. (Tr. R. 290, 314; Tr. 54, 83, 177, 263, 336,
391, 491). The prosecutor made the same point. (Tr. 204,
212, 215, 216). While both of these observations were
literally true, they were misleading, because the jury's
recommendation is an important part of the capital
sentencing process, which must receive great weight in the
judge's decision. Similarly, during voir dire the jury
learned that it must return a recommendation by a majority
vote, although under Florida law six jurors could
recommend life imprisonment. (Tr. 452).

35. The sentencing phase, the evidence that would be

presented in that portion of the trial, and the

112

unspecified aggravating and mitigating circumstances to
which the prosecutor, the Court, and defense counsel
referred, comprised the theme of the voir dire. The focus
on sentencing--before a single witness had testified--not
only predisposed the jury to convict, but also deprived
Mr. Thomas of his defense in the penalty phase: lingering
doubt about whether the jury had convicted the right man.

36. Because the evidence against Mr. Thomas was, as
the Florida Supreme Court acknowledged, "wholly

circumstantial," Thomas v. State, 374 So.2d 509, 513 (Fla.

1979) and the circumstances pointed equally to someone
other than Mr. Thomas, a jury willing carefully to
scrutinize the evidence for proof beyond a reasonable
doubt was essential. Instead, Mr. Thomas was tried,
convicted, and sentenced to death by a jury selected and
programmed for that purpose, in violation of the eighth,
sixth, and fourteenth amendments to the United States

Constitution.

C. THE EXCLUSION OF BLACK JURORS DEPRIVED MR. THOMAS OF A
FAIR TRIAL.

37. Five black prospective jurors were called to
serve on the original trial jury, and two were called as
alternates. The trial judge excused one black juror for

cause, and the prosecutor struck five peremptorily.

113