In the Matter of Isaac Sims, Jr., in the Matter of Richard Abrams

389 F.2d 148

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 28, 1967
• Docket: 24272_1
• Status: Published

Opinions

GODBOLD, Circuit Judge:

These are appeals from orders of the United States District Court for the Southern District of Georgia denying appellants’ motions, filed under F.R.Civ.Proc. 27, to perpetuate testimony.

Appellants were imprisoned in Georgia penal institutions. They expected, if necessary for what they conceive to be preservation of their rights, to commence federal habeas corpus actions against state officials on the ground their convictions and sentences to death on charges of raping white women had resulted from state policy and practice of racial discrimination in violation of the 14th Amendment to the United States Constitution. They could not bring habe-as corpus actions at the time because they bad not exhausted state remedies (28 U.S.C.A. § 2254).¹

Appellant sought authority to depose three residents of California, alleged to have participated in field research in Georgia,² handling data taken from trial transcripts and other sources regarding rape prosecutions in various parts of Georgia over an extended period. The survey was designed to determine what factors account for imposition of the death penalty in some cases of rape, or related offenses, and not in others, by exhaustively examining the facts of a large sample of cases.³ The testimony was sought as a predicate to introduction in evidence of the survey and as expert testimony concerning statistical computations based on data in the survey. Each deponent was to be examined on how he was selected as a researcher, his qualifications as such, the nature of his training and the manner, accuracy and objectivity of the actual conduct of the research. Appellants’ reason for perpetuating the testimony of witness Farnsworth, stated to be a “field captain” of the survey, was his imminent departure for Peru with a possible loss of his testimony before appellants’ habeas corpus actions could be brought. Perpetuation at the same time and place of testimony of witnesses Olson and Davis was sought on the basis they too were residents of California and money and effort would be saved by handling all of the depositions together.

The petitions met the five substantive requirements of Rule 27(a) (1), except that the names and addresses of the expected adverse parties apparently were not complete.

The court denied the petitions holding: “After due consideration, the Court finds that there has been no sufficient showing of necessity that Farnsworth, the California resident about to depart for Peru, be deposed or either justice fail or be delayed, inasmuch as it is not shown that his testimony, based on his position as a field researcher, would be other than cumulative to the testimony of the other two California residents whom it is not shown will not be available for deposing in the event an action is brought later in this Court.”

The fundamental premise of the District Court, that Farnsworth’s testimony was not shown to be other than cumulative to that of Olson and Davis who were not shown to be unavailable if an action ever was filed, is plainly erroneous. The petition indicates that Farnsworth’s testimony would not be merely cumulative⁴

The appellants did not comply with the 20-day notice provision of Rule 27(a) (2), stating their attorney had been notified of Farnsworth’s imminent departure too late to comply. In fact the period of time from the filing of the petitions, the hearing thereon, and the date on which the depositions were proposed to be taken all was less than 20 days.⁵

Upon giving the names and addresses of expected adverse parties, and compliance with notice and service provisions of Rule 27, appellants are entitled to an order allowing perpetuation.

After the court denied the orders sought appellants perpetuated the testimony of the three witnesses, without further notice of their intent to do so, at the time and place originally named, and filed copies with the District Court pending disposition of this appeal. It has been made known to this court on oral argument that the testimony thus taken is brief, and counsel for appellees has been furnished copies thereof. While no party is bound to do so, in the interest of avoiding further expenditures of time, effort and expense by parties, attorneys, and courts to preserve evidence which may be material and competent in further actions which may be filed, it is suggested that the parties explore fully all reasonable possibilities of the testimony taken to date being utilized insofar as consistent with the rights of all and not genuinely prejudicial to the rights of any.

Nothing said in this opinion is to be taken as indicating the materiality, competency, admissibility or weight in any proceeding (state or federal) that may be filed, of the evidence sought to be perpetuated. All that is before us are questions of how to make a record of testimony, not what may be done with it.

Remanded for proceedings consistent with this opinion.

1 . Sims’ conviction was then in the Supreme Court of the United States for review on writ of certiorari. Abrams’ conviction is stated to be on appeal to the Georgia Supreme Court. Sims’ case has subsequently been reversed and remanded for a determination of voluntariness of his confession. Sims v. Georgia, 221 Ga. 190, 144 S.E.2d 103 (1965), cert. granted, 384 U.S. 998, 86 S.Ct. 1953, 16 L.Ed.2d 1013 (June 20, 1966), rev’d, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (Jan. 23, 1967), on remand, 223 Ga. 126, 153 S.E.2d 567 (Feb. 23, 1967).

2 . The research is stated to have been conducted by Professors Marvin Wolfgang and Anthony Amsterdam of the University of Pennsylvania.

3 . The results of a similar study are now before the Eighth Circuit. William L. Maxwell, a Negro under death sentence for rape of a white woman, unsuccessfully contested the validity of imposition of the death penalty upon him on the ground the penalty was discriminatorily applied in rape cases. Maxwell v. Stephens, 229 F.Supp. 205 (E.D.Ark., 1964), aff’d., 348 F.2d 325 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965). A second habeas corpus petition was filed alleging the same ground (among others); the results of a survey conducted by Prof. Marvin Wolfgang in Arkansas were introduced as evidence. Relief was denied by the District Court, Maxwell v. Bishop, 257 F.Supp. 710 (E.D.Ark., 1966) and both the District Court and the Court of Appeals for the Eighth Circuit denied Maxwell the certificate of probable cause essential to an appeal from a denial of a petition for a writ of habeas corpus. The Supreme Court, in a per curiam opinion, reversed and remanded the case to the Eighth Circuit with directions to issue the certificate. 385 U.S. 650, 87 S.Ct. 768, 17 L.Ed.2d 671 (1967).

4 . We need not decide whether the fact the testimony is cumulative would alone be sufficient ground for denial, nor whether an applicant for an order must show that witnesses would be unavailable to depose after the expected action is filed.

5 . It is not necessary for us to decide in this case whether the 20-day time limit of Rule 27(a) (2) may be shortened (Compare: Moore, Federal Practice, § 2714; Barron and Holtzoff, Federal Practice and Procedure, § 673), for that time long since has elapsed. Nor need we decide whether service requirements of Rule 27(a) (2) were complied with.