Theodore Robert BUNDY
Number of victims: 14 +
Date of murders: 1973 - 1978
Date of birth:
Victims profile: Girls and young women
Method of murder:
Beating with metal bar
Location: Washington/Colorado/Utah/Oregon/Florida/Idaho/Vermont, USA
electrocution in Florida on January 24,
Bundy, 589 P.2d 760 (Utah, 1978) (Aggravated
The defendant was charged with, and convicted of, the
crime of Aggravated Kidnapping. The trial was to the court sitting
without a jury. An 18 year old girl was in a Shopping Mall where she was
approached by a man who told her that someone had been trying to break
into her automobile. She thought that he was a police officer. The man
asked her to accompany him to the car to see if anything was missing.
Upon reaching the car the girl looked in and determined nothing was
missing. He eventually asked her if she could go to the station to make
Later at a lineup, she identified the
appellant as her assailant immediately upon his entering the room
because of, among other things, his manner of walking. She also observed
that at the time of the offense he was wearing dark patent leather shoes,
and that he was slim, weighing about 160 pounds, had greased back hair,
and had a dark mustache. She walked with the man to a nearby laundromat
and when the man could not get in, she became suspicious and asked to
see an ID. The man produced a wallet with a badge inside. She then got
into his car, which she descibed as a white or beige Volkswagen with a
rip on the top of the backseat.
They drove a couple of blocks to a school where
appellant abruptly stopped. When the girl nervously asked him what he
was doing, the man grabbed her left arm and forcefully placed a pair of
handcuffs on it. She grabbed the door on her side, managed to open it
and get one foot out. The man grabbed her by the arm and around the neck.
She kept screaming. He then pulled out a gun, pointed it at her, and
said he was "going to blow her head off."
She managed to get out of the car but the man pursued
her. They struggled outside the vehicle as she tried to free herself.
She felt what she thought was a crowbar in his right hand. She recalled
scratching the assailant during the fighting because she remembered
noticing that all her fingernails were broken. She finally succeeded in
breaking away, and ran into the street, the handcuffs still dangling
from her arm. She managed to get a car to stop for her and they drove
her directly to the police station.
Approximately nine months after the assault, at 2:30
a. m. on August 16, 1975, Bundy was driving his Volkswagen in a
residential area. When a Utah Highway Patrol officer approached, Bundy
took off at a high rate of speed with his headlights off. The officer
stopped him and observed a crowbar in the back floorboard of the
Volkswagen. Bundy consented to a search and a pair of handcuffs and the
crowbar were found inside.
At first, Bundy told officers that he had been to a
movie and then had gone for a drive. He later told them that the reason
he had sped away was because he was "smoking dope" and did not want to
be caught doing something illegal. His final version of the events of
that evening was that he was eating dinner and watching television until
12:00 midnight or 12:30 a. m., at which time he decided to visit a
friend. Upon arriving at his friend's house, he noticed the lights were
out. He decided not to awaken her and proceeded to drive around for a
while, ending up in the Granger area where he decided to smoke some
581 F.2d 1126
Theodore Robert BUNDY, and Millard C. Farmer, Jr.,
John RUDD et al., Defendants-Appellees.
United States Court of Appeals
For the Fifth Circuit
Oct. 2, 1978.
Appeal from the United States District
Court for the Northern District of Florida.
Before RONEY, GEE and FAY, Circuit
The denial of requested relief and
dismissal entered by the Trial Court is affirmed on the basis of the
unpublished Order entered by Judge William Stafford on September 15,
1978, appended hereto.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS
Before the court are plaintiffs'
motion for preliminary injunction and demand for permanent injunctive
and declaratory relief and defendants' motion to dismiss or, in the
alternative, to strike.
The procedural history of this
action, as relevant here, unfolds as follows. On July 24, 1978, the
Public Defender for the Second Judicial Circuit of Florida moved in
Leon County Circuit Court on behalf of Theodore Robert Bundy, co-plaintiff
in this case, for leave to have co-plaintiff Millard C. Farmer, Jr.
appear with the Public Defender to represent Bundy in the state grand
jury proceedings scheduled to commence in Tallahassee on July 25.
Attached to the motion was a certificate of Farmer's good standing as
an attorney from the Georgia Supreme Court. The Circuit Court reserved
ruling on that motion. The Leon County Grand Jury then indicted Bundy
for various offenses including first degree murder and burglary. At
Bundy's first appearance on these charges on July 28, he moved the
County Court to allow Farmer to represent him solely during that
proceeding. That motion was denied by the County Judge, defendant
Charles M. McClure. Bundy was arraigned in Circuit Court July 31; at
that time Farmer requested the right to represent Bundy Pro hac vice
solely for the arraignment but that request was denied by the Circuit
Judge, defendant John A. Rudd. At an August 2 hearing on the State's
motion to extend time for speedy trial, Farmer once again renewed his
motion to represent Bundy Pro hac vice. Judge Rudd granted Bundy ten
additional days to oppose the motion of the state (represented by
defendants Harry Morrison and Larry Simpson) for extension of time and
orally denied Bundy's August 2 motion requesting Judge Rudd to
disqualify himself. A written order to that effect was entered the
next day by Judge Rudd along with an order denying Farmer the right to
represent Bundy Pro hac vice. Bundy filed a Pro se petition for writ
of common law certiorari with the Supreme Court of Florida on August
4, 1978, requesting an order from that court directing the state to
show cause why he was being denied his Sixth Amendment right to
counsel. Also on August 4 Bundy and Farmer filed this 42 U.S.C. § 1983
action, requesting preliminary and permanent injunctions along with
declaratory relief, the gravamen of the complaint alleging a denial of
plaintiffs' rights to due process, to equal protection and to counsel.
Chief Judge Arnow of this court denied plaintiffs' respective motions
for a preliminary injunction following a hearing on August 11. On
August 14 plaintiffs filed their joint petition with the Florida
Supreme Court seeking writs of certiorari, mandamus and prohibition,
with both Farmer and Bundy alleging violations of their First, Fifth,
Sixth and Fourteenth Amendment rights. On August 21, 1978, the Supreme
Court of Florida denied all of plaintiffs' writs without opinion. On
August 23 defendants filed a motion to dismiss in this case, and on
August 28 both plaintiffs renewed their requests here for preliminary
injunction. This court held a hearing on all pending motions on
September 6, at which time counsel announced that all evidence, legal
authority and pleadings were before the court and that this matter was
ripe for disposition.
Defendants claim that plaintiffs
amended their complaint the second time without receiving, or even
seeking, leave of court as required by Rule 15(a) Fed.R.Civ.P. Inquiry
at the September 6 hearing demonstrated no prejudice to defendants
from allowing the amendment, and, accordingly, plaintiffs were then
granted leave to file their second amended complaint.
Plaintiffs advance two separate
theories in this case. In spartan terms, plaintiff Bundy requests
relief from an alleged denial of his Sixth Amendment right to counsel,
while plaintiff Farmer contends that he was denied the essentials of
due process required prior to deprivation of liberty or property
interest under the Fourteenth Amendment.
Defendants, in turn, seek dismissal
of all claims here, contending alternatively that this court should
abstain in deference to the state court, that Farmer has been accorded
whatever due process he is entitled to receive, and that plaintiffs'
proper remedy, in any event, is to seek review in the United States
Supreme Court under 28 U.S.C. § 1257.
The claims of each plaintiff will be
Plaintiff Bundy, indicted for
numerous state felonies, including capital offenses, asks this federal
court to order the state trial court to allow plaintiff Farmer, not a
member of The Florida Bar, to represent Bundy in his pending criminal
cases. The Public Defender's office was appointed by the Florida state
courts to represent Bundy; however, with the appearance of plaintiff
Farmer on the scene, Bundy has now refused the services of the Public
Defender. The Public Defender remains available to represent Bundy,
but Bundy wants Farmer to be his lawyer. Farmer is equally anxious to
represent Bundy. To refuse these mutual requests, says Bundy, is to
deny him his Sixth Amendment right to counsel.
To grant Bundy's request would
result in this court's ordering the state trial judge before whom the
criminal case is pending to permit a Pro hac vice appearance by an
attorney already refused such admission by that same state judge, a
direct interference with the ongoing state criminal prosecution.
If there was ever a doubt as to the
propriety or wisdom of federal district court intrusion into pending
state criminal proceedings, that doubt was removed by the decision of
the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971). Citing first the traditional
equitable principle that "courts of equity should not act, and
particularly should not act to restrain a criminal prosecution, when
the moving party has an adequate remedy at law and will not suffer
irreparable injury if denied equitable relief" Id. at 43-44, 91 S.Ct.
at 750, the Court then articulated
an even more vital consideration, the notion of "comity,"
that is, a proper respect for state functions, a recognition of the
fact that the entire country is made up of a Union of separate
governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are
left free to perform their separate functions in their separate ways.
Id. at 44, 91 S.Ct. at 750.
The late Justice Hugo Black, writing
for the majority in Younger, analyzed the historic and contemporary
application of this concept:
The concept does not mean blind deference to "States'
Rights" any more than it means centralization of control over every
important issue in our National Government and its courts. The Framers
rejected both these courses. What the concept does represent is a
system in which there is sensitivity to the legitimate interests of
both State and National Governments, and in which the National
Government, anxious though it may be to vindicate and protect federal
rights and federal interests, always endeavors to do so in ways that
will not unduly interfere with the legitimate activities of the States.
It should never be forgotten that this slogan, "Our Federalism," born
in the early struggling days of our Union of States, occupies a highly
important place in our Nation's history and its future.
Id. at 44-45, 91 S.Ct. at 750.
The fact that the defendants also
seek a declaratory judgment, ostensibly a less onerous intrusion on
the state criminal proceedings, is of no moment. Samuels v. Mackell,
401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), decided the same day
as Younger, holds that whether the relief sought is declaratory
judgment or injunction, the federal interference with the pending
state criminal prosecution is the same.
In its August 23, 1978 decision in
Gibson v. Jackson, 578 F.2d 1045, the Fifth Circuit Court of Appeals,
while cautioning that the abstention doctrine of Younger and its
progeny is to be applied on a case-by-case basis and "determined by
principled discretion not doctrinaire adherence," nevertheless vacated
the judgment of the federal district court which had ordered the State
of Georgia to furnish court-appointed counsel and other monetary
assistance in state habeas corpus proceedings to a state defendant
sentenced to death. Perhaps apropos in the context of this case is the
special concurring opinion of two of the three judges in Gibson, that
opinion expressing the view that cases where the death penalty is
involved should not be governed by a special category of safeguards
different from those cases where a lesser penalty is imposed.
Application of the principles of
Younger and Gibson to the case at bar mandates that this court stay
its hand as to Bundy's claims.
Plaintiff Farmer seeks a hearing in
the state court, alleging that the proceedings there to date did not
afford him due process and resulted in a denial of his property and
liberty interests. Defendants deny that Farmer has such interests,
maintaining that whatever due process rights he had were protected by
the state court. Defendants would also have this court apply Younger -type
abstention to his claims.
Merely ordering the state court to
hold a further hearing on Farmer's own claims would not prejudice, or
interfere with, the conduct of Bundy's trial on the merits. Gerstein
v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
The "equitable restrictions" of Younger are not aimed at collateral
issues in state criminal proceedings; therefore, Younger principles
will not dispose of Farmer's contentions. Accordingly, the court turns
to his due process claim.
Plaintiff Farmer has asserted an
interest he characterizes as a deprivation of a "substantial right or
status." If by that allegation he attempts to establish a property
interest sufficient to invoke due process, then he fails in that
Protected interests in property are normally 'not
created by the Constitution. Rather, they are created and their
dimensions are defined' by an independent source such as state
statutes or rules entitling the citizen to certain benefits.
Goss v. Lopez, 419 U.S. 565, 572, 95
S.Ct. 729, 735, 42 L.Ed.2d 725 (1975). See, e. g., Mathews v. Eldridge,
424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Thurston v. Dekle,
531 F.2d 1264 (5th Cir. 1976), Vacated 436 U.S. ---, 98 S.Ct. 3118, 57
L.Ed.2d 1144, On remand, 578 F.2d 1167 (1978).
Farmer has referred this court to no such independent source. Without
"more than an abstract need or desire . . . (o)r a legitimate claim of
entitlement" to represent Bundy, Board of Regents v. Roth, 408 U.S.
564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1977), Farmer's claim
cannot rise to the level of a property right.
Alternatively, in his attempt to
assert a denial of liberty sufficient to invoke due process, Farmer
alleges an injury to his "professional reputation and character," a "badge
of infamy" and "contamination" to his reputation. Dennis v. S & S
Consolidated Rural H. S. Dist., 577 F.2d 338 (5th Cir. 1978),
elaborated upon the liberty interest test discussed in Paul v. Davis,
424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Fifth Circuit
calling it "stigma-plus."
To establish a liberty interest sufficient to
implicate Fourteenth Amendment safeguards, the individual must be not
only stigmatized but also stigmatized in connection with a denial of a
right or status previously recognized under state law.
Dennis at 341. Assuming, Arguendo,
that Farmer has been stigmatized by not being allowed to represent
Bundy in the state criminal proceedings, it is difficult to determine
what previously recognized right or status under state law he has been
denied. Indeed, Farmer has not pointed to any such right or status.
Certainly, his claimed Pro hac vice appearance in other Florida courts
does not create a sufficient "plus" to make his reputation a
constitutionally protected liberty interest. See Bishop v. Wood, 426
U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Codd v. Velger, 429
U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (employment termination
cases). This claim of Farmer's likewise must fail.
Farmer maintains, however, that he
is entitled to relief here because of the Sixth Circuit holding in
Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978), Appeal docketed, 46
U.S.L.W. 3723 (May 23, 1978). In Flynt the out-of-state attorneys had
already been admitted Pro hac vice by one state court judge to
represent the defendants, when suddenly the judge to whom the case was
assigned for trial summarily, without notice, without hearing and with
no reason given, revoked their admission and would not allow them to
participate further as counsel in the case. The out-of-state attorneys
in Flynt had previously appeared as trial counsel in the same judge's
court without incident and were found by the Sixth Circuit "to have
exemplary academic and professional qualifications." Flynt at 876.
Without deciding what the nature of these attorneys' interest was when
they originally sought admission, the Sixth Circuit found that once
the state court had authorized them to act, their interest had
advanced to the stage where they could not be denied the right to
further appear for their clients "without a meaningful hearing, the
application of a reasonably clear legal standard and the statement of
a rational basis for exclusion." Flynt at 879. Finding that none of
these due process requirements were present and rejecting the Younger
abstention argument, the Sixth Circuit affirmed the district court
which had enjoined the state prosecution until the attorneys were
granted a due process hearing. This is the same relief Farmer seeks
from this district court.
What occurred in Flynt is far
different from the case at bar. Farmer has never been admitted to
practice in the state courts of Leon County, and particularly has not
been permitted to appear Pro hac vice in his representation of Mr.
Bundy by any judge in Leon County. He had, thus, not acquired the
status as counsel of record as the out-of-state attorneys in Flynt had
done. Further, the state court had before it a reported decision
reflecting adversely upon Mr. Farmer's conduct as trial counsel in the
State of Georgia where he is admitted to practice. In Farmer v. Holton,
146 Ga.App. 102, 245 S.E.2d 457 (1978), the Georgia Court of Appeals
reviewed the judgment of the trial court which found Mr. Farmer guilty
of direct criminal contempt twice in connection with the same
proceeding. In affirming Mr. Farmer's convictions of contempt the
Georgia Court of Appeals found that Mr. Farmer's " continuous
disregard of the court's instruction, his question to the court, . .
., his verbal assault on the court charging it with malicious and
arbitrary reasoning on rulings made during voir dire," and his other
assertions were "insulting, contemptuous and contumacious." The
Georgia Court of Appeals, therefore, found that such conduct presented
"criminal contempt clearly and beyond a reasonable doubt." On
September 14, 1978 the Georgia Supreme Court denied Mr. Farmer's
petition for writ of certiorari. The state court judge applied to this
finding of contemptuous conduct the American Bar Association Standards
Relating to the Function of the Trial Judge, § 3.5 (1972), which reads
3.5 Attorneys from other jurisdictions.
If an attorney who is not admitted to practice in
the jurisdiction of the court petitions for permission to represent a
defendant, the trial judge may
(a) deny such permission if the attorney has been
held in contempt of court or otherwise formally disciplined for
courtroom misconduct, or if it appears by reliable evidence that he
has engaged in courtroom misconduct sufficient to warrant disciplinary
action; . . .
This is sufficient to satisfy the
Flynt requirement that the denial of admission to appear Pro hac vice
be based upon "a reasonably clear standard and a statement of reasons."
Flynt at 877. Other sections of the same ABA standards were quoted
with approval by the Fifth Circuit in United States v. Dinitz, 538
F.2d 1214 (5th Cir. 1976).
Flynt also discusses the need for a
hearing, and in this context consideration of the Fifth Circuit
decisions in In re Evans, 524 F.2d 1004 (5th Cir. 1975) and Dinitz,
Supra, is appropriate. Read together, Dinitz and Evans suggest that
"fundamental fairness may require . . . a hearing in most . . .
situations" where admission Pro hac vice is denied.
Farmer has already been heard by the Florida state court judge, but
claims that that hearing was not adequate. Farmer's situation presents
an instance where the Dinitz rationale would not require a further
hearing in the Florida state court because the only purpose such a
further hearing would serve would be to permit Mr. Farmer to
relitigate in the Florida courts the underlying issues resulting in
the judgments of contempt against him in Georgia. He clearly is
estopped from doing this. Thus, requiring the state court to hold a
further hearing on these issues would be both unnecessary and
The court, having considered all of
the claims pursued by Farmer, finds that he, like Bundy, cannot
prevail in this case.
Accordingly, it is ORDERED:
1. Plaintiffs' motion for
preliminary injunction and their demands for permanent injunctive and
declaratory relief are hereby DENIED.
2. Defendants' motion to dismiss is
3. This cause is dismissed with
prejudice with each party to bear his own costs.
4. The clerk of this court will
enter judgment accordingly.
State, 455 So.2d 330 (Fla. 1984) (Chi Omega
This cause is before the Court on appeal from a
circuit court judgment adjudicating Theodore Robert Bundy guilty of two
counts of first-degree murder, three counts of attempted first-degree
murder, and two counts of burglary. For the two crimes of first-degree
murder the trial judge imposed sentences of death.
During the early morning hours of Sunday, January 15,
1978, an intruder entered the Chi Omega sorority house, adjacent to the
campus of Florida State University in Tallahassee, and brutally attacked
four women residing there. Margaret Bowman and Lisa Levy were killed,
and Kathy Kleiner and Karen Chandler sustained serious injuries. Within
approximately an hour of the attacks in the Chi Omega house, an intruder
entered another home nearby and attacked a woman residing there, Cheryl
Thomas. All five women were university students. All were bludgeoned
repeatedly with a blunt weapon.
The evidence that was placed before the jury at the
trial established the following facts. On January 7, 1978, appellant
rented a room at The Oak, a rooming house near the Florida State
University campus. One week later, during the evening hours of Saturday,
January 14, Bundy was seen in a barroom adjacent to the campus and next
door to the Chi Omega sorority house. Three women testified that they
were in the bar that night, and two of them identified appellant as
having been there.
At approximately 3:00 a.m. on Sunday, January 15,
1978, Chi Omega house resident Nita Neary arrived home from a date and
entered the house by the back door. She proceeded toward the front
entrance hall of the house, where the main stairway was located. While
moving through the house toward this front entrance hall, she heard the
sounds of someone running down the stairs. When she arrived at the front
entrance hall, Ms. Neary saw a man standing at the front door. The man
held a club in his right hand, had his left hand on the doorknob, and
was in the process of leaving the house. Ms. Neary saw a right-side
profile of the man's face. She was able to look at him for several
seconds before he left. Nita Neary described the man to her roommate
wearing light-colored pants, a dark jacket, and a skiing cap, had a
protruding nose, and carried a large stick with cloth tied around it.
Beating victim Karen Chandler then came out of her room. They discovered
Lisa Levy and Margaret Bowman had been killed; Karen Chandler and Kathy
Kleiner had been severely beaten. The surviving victims were attacked in
their sleep and could not describe their attacker.
Lisa Levy and Margaret Bowman were killed by
strangulation after receiving severe beatings with a length of a tree
branch used as a club. Margaret Bowman's skull was crushed and literally
laid open. The attacker also bit Lisa Levy with sufficient intensity to
leave indentations which could clearly be identified as human bite marks.
In the course of their investigation police technicians made numerous
photographs of the bite on the victim's body.
While the police were taking statements and searching
for evidence at the Chi Omega house, another attack was taking place
only a few blocks away. Police later discovered a severely beaten Cheryl
Thomas lying in her bed. She had been attacked in her sleep and could
not describe or identify her attacker.
At approximately 5:00 a.m. on Sunday,
January 15, two men who knew Bundy saw him standing in front of the
rooming house where they lived. One week later, Ms. Neary was placed
under hypnosis and questioned. In April, 1978, Neary selected the photo
of Bundy from a photographic array, and positively identified him at
Bundy was arrested in Pensacola on February 15, 1978
under the following circumstances. At about 1:30 a.m. on February 15, a
Pensacola police officer stopped the car being operated by Bundy and
attempted to arrest him for car theft. As the officer tried to handcuff
Bundy, he struck the officer and fled. The officer fired at Bundy, then
pursued, overtook, and subdued him.
A forensic hair and fiber analyst testified that she
removed several human head hairs from the knotted pantyhose found in
Cheryl Thomas' room and subjected them to microscopic examination and
comparison with sample hairs from the head of Bundy. The expert
concluded that the human hairs found on the pantyhose had the same
characteristics as Bundy's and could have come from him.
There was also testimony from two forensic dental
experts who testified concerning analysis of the bite mark left on the
body of Lisa Levy. The experts both expressed to the jury their opinion
that the indentations on the victim's body were left by the unique teeth
State, 71 So.2d 9 (Fla. 1985) (Victim:
This is an appeal by Theodore Robert Bundy from his
conviction in Orange County on a change of venue of first-degree murder
and from the trial judge's imposition of the death sentence after the
jury had recommended death.
On February 9, 1978, Kimberly Leach, age 12, was
reported missing from her junior high school in Lake City, Florida. Two
months later, after a large scale search, the Leach girl's partially
decomposed body was located in a wooded area near the Suwanee River,
Suwanee County, Florida.
The victim was a junior high school
student taken at her Lake City Junior High School 9 and 10 am on
February 9, 1978. Her deteriorated body was found in a hog pen
approximately 45 miles from the scene of abduction on April 7, 1978. The
victim died of homicidal violence to the neck region of the body. At the
time the body was found it was unclothed except for a pullover shirt
around the neck. There were semen stains in the crotch of her panties
found near the body.
The events and evidence leading to the investigation,
trial, and conviction of Bundy are as follows:
On February 15, 1978, Bundy was arrested in Pensacola,
Florida, after fleeing from a stop made by an officer whose suspicions
had been aroused. At that time Bundy identified himself to the officer
as one Kenneth Misner. Over the next several days Bundy was extensively
interviewed by officers from the Pensacola and Tallahassee Police
Departments and the Leon County Sheriff's Office.
During this time he revealed his true identity. It
was learned that Bundy was wanted for escape and homicide in Colorado
and was a suspect in thirty-six sex-related murders in the northwest
During these interviews and thereafter, Bundy also
became the prime suspect in the January 1978 murders of the Chi Omega
Sorority members in Tallahassee. Later Bundy was indicted, convicted,
and sentenced to death for the Chi Omega murders. The state offered the
testimony of two Lake City Holiday Inn employees and the state's
handwriting expert, John McCarthy. These witnesses established that
Bundy had registered at the Lake City Holiday Inn on February 8, 1978,
under another name.
Prior to Bundy's indictment on July 21, 1978, for the
Leach murder and kidnapping, only one witness placed Bundy and the white
van at the scene of the Lake City Junior High School on the morning of
February 9, 1978. Chuck Edenfield, a school crossing guard at the junior
high school, testified that he saw a man whom he identified as Bundy
driving a white van in front of the school. The state's one eyewitness
to the abduction of Kimberly Leach was Clarence Anderson.
On July 18, 1978, Anderson reported to the Lake City
Police Department that the profile of a person he had seen on a
television newscast bore a striking resemblance to the man that he had
observed with a girl near the Lake City Junior High School several
months earlier. Assistant State Attorney Dekle asked Anderson to undergo
hypnosis to refresh his memory. Anderson agreed and was hypnotized twice.
Thereafter, he stated that on February 9, 1978, he
noticed a man leading a young girl into a white van near the Lake City
Junior High School. Anderson identified the young girl as Kimberly Leach
and the man in the van as Theodore Bundy.
794 F.2d 1485
Theodore Robert Bundy, Petitioner-Appellant,
Louis L. Wainwright, as Secretary, Department of Corrections, State of
Docket number: 86-5509
Federal Circuits, 11th Cir.
July 2, 1986
Appeal from the United States District Court from the
Southern District of Florida.
Before GODBOLD, Chief Judge, VANCE and CLARK, Circuit
BY THE COURT:
The motion of the appellant for a stay of execution
is GRANTED pending further order of this court. The appeal is expedited.
479 U.S. 894
107 S.Ct. 295
93 L.Ed.2d 269
Theodore Robert BUNDY
Supreme Court of the United States
October 14, 1986
On petition for writ of certiorari
to the Supreme Court of Florida.
The petition for a writ of
certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death
penalty is in all circumstances cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments, Gregg v.
Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859
(1976), I would grant certiorari and vacate the death sentence in this
Justice MARSHALL, dissenting from
denial of certiorari.
Petitioner was convicted of first
degree murder and sentenced to death. His conviction was based on
evidence the Florida Supreme Court found constitutionally suspect. The
Florida Supreme Court nonetheless concluded that admission of the
evidence was harmless constitutional error. I would grant certiorari
to review the Florida Supreme Court's application of Schneble v.
Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and
Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171
* Petitioner became a suspect in the
disappearance of Kimberly Leach after local authorities learned that
he was suspected in a number of murders in the northwestern United
States. Leach was reported missing from school on February 9, 1978 and
her body was found two months later, after a highly-publicized search.
The only eyewitness to the abduction was Clarence Anderson. He came
forward on July 18, after seeing petitioner on a television newscast.
At that time, Anderson was unable to identify the date of his
observation, although he thought it was "around April," and he could
not provide a detailed description of the man or the girl he had
observed. App. to Pet. for Cert. 17a-21a. At the request of the
Assistant State Attorney, Anderson underwent two hypnotic
sessions designed to refresh his recollection.
Petitioner moved to suppress
Anderson's testimony due to the lapse of time between Leach's
disappearance and his initial statement, the massive publicity
surrounding her disappearance and petitioner's arrest and indictment
and an alleged misuse of hypnosis by the persons conducting the
sessions. He maintained that these factors rendered Anderson's
identification unreliable under the rule established by this Court's
decision in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972). At the suppression hearing, several experts
testified that a witness whose recollection has been hypnotically
refreshed is unable to distinguish between what he recollected before
hypnosis and any "details" added during hypnosis.
The trial court denied petitioner's
motion to suppress. At trial, Anderson testified that he had observed
a man leading a young girl into a white van near Leach's junior high
school on February 9, 1978. He identified the man as petitioner and
the girl as Kimberly Leach. Anderson's testimony was vital to the
State's case; it supplied "the crucial link in the chain of
circumstantial evidence of [petitioner's] guilt." Bundy v. State,
471 So.2d 9, 23 (Fla.1985) (Boyd, C.J., concurring specially).
On appeal, the Florida Supreme Court
agreed with petitioner's arguments against the use of hypnotically
refreshed testimony. Id., at 18. The court noted that the
highest courts of several other states have categorically excluded
hypnotically refreshed testimony. E.g., People v. Shirley, 31
Cal.3d 18, 723 P.2d 1354, 181 Cal.Rptr. 243, cert. denied, 458 U.S.
1125, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982); People v. Gonzales,
415 Mich. 615, 329 N.W.2d 743 (1982). The court discussed several of
the problems associated with such testimony, not the least of which is
its effect on the defendant's right under the Confrontation Clause of
the Sixth Amendment to cross-examine witnesses against him. The
Florida court noted the " 'danger of distortion, delusion, or fantasy,'
" as well as " 'the barriers which hypnosis raises to effective cross-examination.'
" Bundy v. State, supra, at 18 (quoting People v. Gonzales,
supra, 415 Mich., at 626-27, 329 N.W.2d, at 748). Furthermore, the
court recognized the danger that, after undergoing hypnosis,
"the subject (1) will lose his
critical judgment and begin to credit 'memories' that were formerly
viewed as unreliable, (2) will confuse actual recall with
confabulation and will be unable to distinguish between the two, and
(3) will exhibit an unwarranted confidence in the validity of his
ensuing recollection." Bundy v. State, supra, at 17 (quoting
People v. Shirley, supra, 31 Cal.3d, at 39-40, 641 P.2d, at 787,
181 Cal.Rptr., at 255).
The Florida Supreme Court concluded,
in a holding to which it gave only prospective effect, that "hypnotically
refreshed testimony is per se inadmissible in a criminal trial
in this state, but hypnosis does not render a witness incompetent to
testify to those facts demonstrably recalled prior to hypnosis."
Bundy v. State, supra, at 18.
Since petitioner was convicted and
sentenced to death after a trial in which the "crucial link" was
supplied by a witness with extremely limited pre-hypnotic memory who
had undergone two hypnotic sessions, the Florida Supreme Court
should have overturned his conviction. Instead, the court somehow
determined that Anderson's testimony was refreshed under hypnosis as
to only three details: the color of the football jersey the
girl was wearing, the numbers on the jersey, and the fact that the man
was wearing a pullover sweater and a shirt. Then, purporting to apply
the "harmless-constitutional-error rule" of Schneble v. Florida,
405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and Fahy v.
Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), the
court concluded that "sufficient evidence does exist, absent the
tainted testimony, upon which the jury could have based its conviction
of Bundy. There is no reasonable possibility that the tainted
testimony complained of might have contributed to the conviction."
Bundy v. State, supra, at 19.
This review for harmless
constitutional error is seriously flawed. First, the Florida court
improperly based its enumeration of tainted testimony on Anderson's
own testimony at trial. App. to Pet. for Cert. 86a-87a. Anderson's
own assessment of the impact of hypnosis on his recollection was
inherently unreliable and was not subject to effective cross-examination,
for the very reasons the court relied upon in holding that such
evidence would in future be inadmissible. The hypnotically refreshed "recollection"
of the precise date of his observation is the most glaring omission
from Anderson's list.
Having identified constitutional error in the admission of
hypnotically refreshed testimony, the Florida Supreme Court was not
free to excise a fraction of that evidence and conclude that the rest
could not have contributed to the conviction. Second, the Florida
court evidently confused review for harmless constitutional error with
review for sufficiency of the evidence, despite this Court's
explanation of the difference in Fahy: "[w]e are not concerned
here with whether there was sufficient evidence on which the
petitioner could have been convicted without the evidence complained
of. The question is whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction."
Id. 375 U.S., at 86-87, 84 S.Ct., at 230. See also Delaware v.
Van Arsdall, 475 U.S. ----, ----, 106 S.Ct. 1431, ----, 89 L.Ed.2d
674 (1986) (applying Fahy standard); Chapman v. California,
386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967) (same).
When the evidence admitted at petitioner's trial is reviewed in this
light it becomes clear that the tainted testimony significantly
bolstered the State's case against him, for the untainted evidence was
far from overwhelming.
"We must recognize that harmless-error
rules can work very unfair and mischievous results when, for example,
highly important and persuasive evidence . . . though legally
forbidden, finds its way into a trial in which the question of guilt
or innocence is a close one." Id., at 22, 87 S.Ct. at 827.
Because the Florida Supreme Court misapplied the harmless
constitutional error rule in such a way as to place in doubt the
reliability of a verdict in a capital case, I would grant the petition