Robert Lee Willie
(died December 28, 1984) was a convict on Death Row at
Louisiana State Penitentiary. He was reached out to by
Sister Helen Prejean, one of the sisters of St Joseph of
Medailles, who based her book Dead Man Walking on
He also provided the
inspiration for the Sean Penn character, Matthew
Poncelet, in the film Dead Man Walking. He was
executed in the electric chair for the May 28, 1980
kidnap, rape, and murder of 18 year old Faith Hathaway
in Mandeville, Louisiana.
Robert Lee Willie
was executed on December 28, 1984. Willie was convicted of the rape
and murder of Faith Hathaway south of Franklinton on May 28, 1980.
Hathaway was raped by both Willie and his co-defendant Joseph J.
Vaccaro and then stabbed to death; each man said the other did it.
convicted of other violent crimes, including kidnaping and rape, and
said that he had committed other murders as well. He was also
featured in Sister Helen Prejean's Dead Man Walking.
Willie's last words
were addressed to the parents of the Faith Hathaway, Vernon and
Elizabeth Harvey, who became known as Louisiana's most ardent
supporters of the death penalty:
"I would just like
to say, Mr. and Mrs. Harvey, that I hope you get some relief from my
death. Killing people is wrong. That's why you've put me to death.
It makes no difference whether it's citizens, countries, or
governments, killing is wrong."
When the hood was
placed over his head, Willie asked that it be removed, and he winked
at Sister Helen, who was present as his spiritual advisor. Then the
hood was replaced.
Victim's parents watch Willie
By Jason DeParle -
December 28, 1984
ANGOLA, La. -- Robert Lee Willie, who
raped and killed an 18-year-old Mandevile woman, was executed Friday
morning after telling the victim's parents, "I hope you get some
relief from my death."
Willie, 26, who was pronounced dead at 12:15 a.m.,
became the sixth Louisiana man executed in the past 13 months, and
the 32nd nationwide since executions resumed in 1977.
Vern and Elizabeth Harvey, the stepfather and
mother of murder victim Faith Hathaway, were among eight people
witnessing the execution. The Harveys have been vocal supporters of
the death penalty and have demonstrated in support of capital
punishment at other executions.
The Harveys did not move or show emotion as
Willie spoke to them.
But within a half-hour after the execution, a
smiling Vern Harvey poured a drink for himself and his wife in their
van parked outside the state penitentiary's main gate.
"Do you want to dance?" he asked a reporter. "First
thing I'm gonna do is have a drink, then go home and get some rest."
Willie, who had said earlier that he was not
afraid of the electric chair, was led into the death chamber just
after midnight. He was wearing jeans, a white sweatshirt, and white
slippers; and was escorted by six guards.
"I would just like to say Mr. and Mrs. Harvey
that I hope you get some relief from my death," he said. "Killing
people is wrong. That's why you've put me to death. It makes no
difference whether it's citizens, countries, or governments. Killing
He was strapped into the chair and a hood was
placed over his head.
Then, he asked Angola State Penitentiary Warden
Frank Blackburn to remove the hood, and he winked at Sister Helen
Prejean of New Orleans, his spiritual advisor.
Prejean was praying, and said, "Forgive those who
At 12:07, Willie was jolted by 2,000 volts of
electricity for 10 seconds, and then 500 volts for 20 seconds. The
sequence was repeated.
West Feliciana Parish Coroner Alfred Gould
examined Willie at 12:13 and pronounced him dead at 12:15.
On his last day, Willie visited with his mother,
Elizabeth Oalman of Covington, four brothers, and Prejean.
Blackburn said that Willie was served the last
meal he requested -- fried fish, oysters and shrimp -- as well as
some french fries and a salad.
Blackburn said Willie's mood before the execution
was "quiet and somber ... appropriate to the occasion. He doesn't
seem scared, but he's not lighthearted."
Outside the prison, Hathaway's sister, Lizabeth,
14, demonstrated for the death penalty along with a half-dozen
members of Parents of Murdered Children, a group the family founded.
Death penalty opponents did not demonstrate at
Angola, as they have in the past, but staged a vigil outside the
Governor's Mansion in Baton Rouge. As they prayed, tourists took
photos of the governor's 40-foot Christmas tree.
Before the execution, Vern Harvey said he
regretted that Willie would not feel much pain from the
"It's going to be quick for him. I'd rather it
would be a lot slower. I think he deserves the painful death she
Willie sometimes said he's sorry for his crimes,
but couldn't understand "why everybody keeps bringing it up." He
said Harvey shouldn't dwell on the murder.
"It's like he's a glutton for punishment over her
death," Willie said.
In interviews last week, Willie recounted his
life of drugs, booze, and violence in remorseless terms, and said he
was not afraid to die.
"Electric chair don't worry me, man," he said. "I
have a lot of pride, I don't run from nothing."
Willie said he and a friend, Joseph Jesse
Vaccaro, were "loaded" at 4:30 a.m. May 28, 1980, when they say
Hathaway walking alongside Mandevile road. Hathaway was returning
from a celebration on the night before she was scheduled to enter
Willie and Vaccaro blindfolded her, raped her,
and drove her to a remote section of Washington Parish.
"She just kept saying, 'I won't identify y'all or
nothing,'" Willie said. "She kept saying 'Don't hurt me.'"
Willie and Vaccaro offer different accounts of
the stabbing that ensued, blaming each other for the 17 knife wounds
that took Hathaway's life.
Willie said Vaccaro, unexpectedly began stabbing
Hathaway and that he helped by holding her hands. But Vaccaro, who
was sentenced to life imprisonment for his role in the murder, said
at trial that "Willie jugged her and jugged her until she begged us
to kill her."
Eight days later, Willie and Vaccaro kidnapped a
Madisonville couple from a wooded lovers' lane and drove them to
Alabama. They raped the 16-year-old girl, and then stabbed and shot
her boyfriend, 20-year-old Mark Brewster, leaving him tied to a tree.
Brewster survived, but is paralyzed from the
waist down, At trial, Willie mocked the victims by blowing kisses at
the woman he raped and drawing his finger across his throat in a
menacing fashion when Brewster took the stand.
After his conviction for Hathaway's murder,
Willie pleaded guilty to the 1978 killing of Dennis Hemby near
Covington. Willie said he and his cousin, Perry Wayne Taylor, beat
and drowned Hemby and stole $10,000 worth of marijuana from him.
Taylor plead guilty to manslaughter and is
serving a 21-year-sentence.
Willie was also given six life sentences stemming
from those crimes.
John Willie, 53, the condemned man's father,
served 27 years at Angola for cattle theft, aggravated battery, and
manslaughter. He said that his son and Vaccaro both deserve to die.
"I believe more in capital punishment than those
people on the juries," he said. "I'd like to pull the switch myself
or shoot them down."
Wiring of chair account retracted
The father of convicted murderer Robert Lee
Willie said Thursday he did not wire the electric chair at the state
penitentiary at Angola in which his son was to be executed early
John Willie retracted an earlier account in which
he claimed to have wired the chair when he was an inmate electrician
in 1982. That claim was published in an article Thursday in The
Times-Picayune/The States Item.
Angola Warden Frank Blackburn said Thursday the
chair was wired before 1982 and that Willie was not an electrician
and did no work on it. An inmate would not have been used for the
job, Blackburn said.
Willie, responding to Blackburn's statement, said
that while he was an inmate at the prison in 1982 he watched
electricians work on the chair, but did none of the work himself.
LOUISIANA: A MURDER, A
MOVIE AND A WINK
By Christopher Buchanan,
The first thing Elizabeth Harvey said to me when
I walked into her home in Mandeville, Louisiana was, "Of all the
people who have come to talk with us about Faith's murder, you're
the first one who has gone down there to see where they stabbed her
It had been a chilling experience, shrouded in
the early February morning fog.
In Louisiana less than a day, it was already
quite clear to me this story of murder and capital punishment was
filled with layers and dimensions, facts and opinions that would
need a lot of untangling: First, the grisly murder 16 years ago,
then a number of trials, an execution, a book, "Dead Man Walking,"
and finally a movie of the same name.
The movie, based on the book by Sister Helen
Prejean, combined the stories of the first two men she counseled on
Louisiana's death row: Elmo Patrick Sonnier and Robert Lee Willie.
In rather broad strokes, it is fair to say the film captures
Sonnier's crime and Willie's character.
The actual crimes took place years and miles
apart. Sonnier and his younger brother, Eddie, killed two teenagers
Loretta Bourque and David LeBlanc on November 4 1977 in an Iberia
Parish sugar cane field, in the heart of Louisiana's Cajun country.
Just as portrayed in the movie, the girl was raped and both were
shot in the back of the head. Three years later, May 28, 1980,
Willie and a friend, Joe Vaccaro, picked up Faith Hathaway as she
was walking home alone from a bar in Mandeville, Louisiana, on the
north shore of Lake Ponchartrain. Stoned on a variety of drugs, they
took her to a remote wooded ravine in Washington Parish, where they
raped and stabbed her repeatedly in the neck.
Robert Lee Willie proved an excellent choice for
the actor Sean Penn to use in creating the character of Matthew
Poncelet. A cocky, self-assured high school dropout, Willie was well-known
to the police in St. Tammany Parish long before he was arrested for
Faith Hathaway's murder. He had a reputation for being a "knife man,"
carrying with him almost proudly a string of arrests that began at
age 14 with a shoplifting charge and included burglary, assaulting a
police officer, and breaking out of jail. A Sheriff's deputy showed
me his rap sheet, still on file in St. Tammany Parish. It covers
four, single-spaced pages. But most of the mug shots of Willie - a
substitute family photo album that would show him becoming a man -
have disappeared, probably souvenirs for those who worked on various
cases against one of the area's most notorious criminals.
Across the 23-mile Lake Ponchartrain Causeway
from New Orleans, people in St. Tammany and Washington Parishes
don't need a movie to remind them of Robert Lee Willie. It is still
a common family name in the area. Willie Road runs right by the
cemetery where young Willie lies buried next to his father. For
Robert, John Willie was a role model of the worst kind. "If you saw
John Willie coming," a prosecutor told me, "most people would go the
other way. He was one mean son of a bitch, who'd just as soon stab
you as look at you." A guard at Angola State Penitentiary, where
John Willie spent more than half his life for manslaughter and other
crimes, remembers him as "Snitchin' Willie," a man eager to rat on
anyone in order to get a small prison favor.
Jo Anne Smith, who works in the criminal division
for the Washington Parish Clerk of Court, attended almost every hour
of Robert Willie's murder trial in October, 1980. Seeing Sean Penn
in the movie, she said, took her right back to those days in the
small basement courtroom. Sean Penn is physically bigger than
Willie, but otherwise, the similarity was almost frightening. "Remember
in the movie when he makes that motion like he's slitting his throat?"
Smith asked as we looked around the now-empty courtroom.
"That motion came straight from Willie. When he
saw that young man he'd kidnapped and left to die, he looked right
at him and made that slicing motion across his neck. Then he
grinned. It just sent shivers down my back."
That 20 year-old boyfriend, who Willie and
Vaccaro had kidnapped along with Debbie Morris three days after
killing Faith Hathaway, did not testify at any of the trials. His
throat had been cut so deeply that five months later he still could
not speak. Now, 16 years later, he has recovered enough physically
to hold a steady job.
Arriving in Louisiana as the movie was opening in
the suburban theaters outside of New Orleans, interest in the real
story was suddenly re-emerging. Mike Varnado, the Deputy Sheriff who
investigated the murder, and Bill Alford, the prosecutor, were
considering an angry letter to the editor of a local newspaper
attacking Helen Prejean for "propagating the lies of two murderers."
Another local paper ran a multi-part series on Faith Hathaway's
murder, a crime 16 years earlier that convinced people of Washington
Parish to start locking their doors at night.
The day I went looking for Debbie Morris just
happened to be the same day she first met Sister Helen. In the years
since her abduction and rape, Debbie had kept a low profile. Because
she was a minor, she was never publicly identified in court or in
newspaper articles. Some of her closest friends knew of her ordeal,
but most didn't. That led to some awkward moments when people around
her started talking about Willie and whether or not they thought he
should be executed. "I usually just kept my mouth shut," she said.
But now she felt ready to talk. In our first
meeting with Debbie, while her son played with his grandparents in
another room, she began talking, tentatively at first, about the 30
hours she was held captive by Willie and Vaccaro. Gradually small
details came back. "These guys were not rocket scientists," she
remembered, recalling the moment when she became fed up with the
loud acid rock tape they kept playing. "I had a splitting headache
and finally just couldn't take hearing that song any more. So I
reached over and pushed the button that turned off the tape player.
This was when push buttons were pretty new in cars, and they
couldn't figure out how to turn it back on."
It was Debbie's close attention to detail that
made her such a compelling witness in the trials that followed. And
although at the time Willie kidnapped Debbie he called her his "girlfriend"
and later told his jailer he decided not to kill her because "she
was too damn pretty," once Willie was on death row, he changed his
tune. He is reported to have told fellow inmates at Angola, "If I
ever get out of here, I'm gonna cut that bitch up into so many
pieces even her mother won't recognize her." Debbie's relief at
Willie's execution is, therefore, not at all surprising.
What is surprising to some is that Willie's
partner, Joe Vaccaro did not also receive a death sentence. In
trying to find out why two men, involved in the same crime, each
accusing the other of doing the stabbing, would get different
sentences, we heard two theories.
Although aggravated homicide is a capital offense
in Louisiana, the death penalty is not mandatory. Some believe
Vaccaro received a life sentence because Willie, not Vaccaro, took
the lead. Contrary to what Helen Prejean writes in her book based on
her death row conversations with Willie, Debbie Morris testified
that Willie was clearly in charge. "Joe was so brain dead from
drugs, he couldn't figure anything out," Debbie told us. "There's no
question in my mind that Willie was in charge."
The second theory centers around jury selection.
Willie and Vaccaro were tried at the same time in the same court
house. The jurors in both trials came from the same jury pool. While
selecting the jury for Willie's case, each potential juror was asked
whether he or she could vote for the death penalty if the defendant
was found guilty. One woman said she could not and was excused. A
short time later, in the larger, upstairs courtroom where Vaccaro's
case was being tried, the same juror was asked the same question.
She apparently changed her answer enough to be seated on the jury.
Four days later when the guilty verdicts were returned in both
cases, the jurors were polled. In the Willie trial, all 12 jurors
and two alternates responded "yes," when asked if they wanted the
death penalty. In Vaccaro's case, both alternates and 11 of the 12
jurors went for the death penalty. But the juror who was excused
from the Willie jury and then seated on Vaccaro's was the lone hold
out. Because a death sentence requires a unanimous jury, Joe Vaccaro
is alive today and serving multiple life sentences in a federal
Willie would most likely still be in a federal
penitentiary as well had it not been for the intervention of Ronald
Reagan. In addition to the murder trial, for which he received the
death penalty, Willie also had to stand trial for the kidnapping and
rape charges. In November 1980, in a state court in Baton Rouge, the
prosecution presented its case against the pair, forcing Debbie,
then a high school junior, to testify once again about her horrible
experience. Then, surprising even their own court appointed
attorneys, Willie and Vaccaro admitted their guilt, saying, "Yea,
we're guilty. We just wanted to put y'all through this." They were
each sentenced to four consecutive life sentences.
But that wasn't all. Because they took Mark and
Debbie across state lines, through Mississippi and Alabama, Willie
and Vaccaro faced federal kidnapping conspiracy charges as well. To
those charges, Willie and Vaccaro simply pled guilty, and received
additional life sentences. Although he may not have known how to
turn on a tape deck, Willie was smart enough in the ways of the law
to know that federal time is served before state time. Facing a life
sentence at the maximum security federal penitentiary in Marion,
Illinois, Willie figured he was protected from Louisiana's electric
He guessed wrong.
Elizabeth and Vern Harvey were intent on seeing
that the death sentence was carried out. One day they decided to
contact their congressman, Louisiana Republican Bob Livingston.
According to Elizabeth Harvey, Livingston's office put in a call to
the White House, and not long after, President Ronald Reagan signed
papers releasing Willie from the federal prison. He was free to go
... back to Louisiana and death row. It was like drawing a "get out
of jail free" card and a "go directly to jail" card in the same turn
On November 7, 1983, Mike Varnado's father, also
a deputy sheriff, drove Willie back to Louisiana. Less than fourteen
months later, he was executed as Helen Prejean, Elizabeth and Vern
Harvey and Mike Varnado looked on. Another witness, a news reporter,
said later that after the executioners placed the black hood over
Willie's head, he asked that it be raised up one last time. That's
when he winked at Helen Prejean.
Was it a wink that transcended the reality of his
execution, as Helen Prejean would like to think, suggesting his last
thoughts on earth were ones of love and being at peace? Or was it a
wink of defiance and contempt, the view held by the Harveys and Mike
Varnado, convinced to the end that Robert Lee Willie had no remorse
for what he had done?
No one will ever know.
Madisonville native Debbie Morris shares the
story of how she came to forgive Robert Lee Willie, the man who
kidnapped and raped her when she was 16.
Allen Johnson Jr
March 27, 2001
"... if you do not forgive men their sins, your
Father will not forgive your sins." -- Debbie Morris, crime survivor,
quoting the Bible (Matthew 6:15)
The fear comes in parking lots," Debbie Morris, a
37-year-old native of Madisonville, La., says, quietly.
It also appears anywhere she stops while driving
alone at night. Taking her two young children to an empty park near
their Cincinnati-area home is out of the question, even during
daylight hours. When she is with her husband, Morris becomes anxious
if they sit too long in a parked car.
The nightmares are fewer and further between,
however. And the fear, she's convinced, weakens its grip as her
faith gets stronger. And she will assert herself and correct others
who refer to her as a "victim" of one of Louisiana's most notorious
"I am a crime survivor," Morris says, with steel
in her voice.
It's been more than two decades since Morris was
16-year-old Debbie Cuevas, kidnapped from her Northshore hometown
and raped by two armed ex-convicts, who then took her on a three-state
The men also abducted her then-boyfriend Mark
Brewster, 20, who they left alone to die -- tortured, stabbed and
shot in the head -- tied to a tree in the Alabama woods off
Brewster and Morris survived. Today, one of their
tormentors is dead; the other, in prison.
Robert Lee Willie was executed in 1984 for the
rape and murder of Faith Hathaway, a 19-year-old Mandeville woman
killed by Willie and accomplice Joseph Vaccaro shortly before they
kidnapped Brewster and Morris. Willie's execution was depicted in
the Oscar-winning movie Dead Man Walking, based on the book
by Sister Helen Prejean, a New Orleans nun and spiritual adviser to
Willie at the Louisiana State Penitentiary at Angola.
Vaccaro is serving three life sentences for his
crimes at a federal penitentiary in Kansas. Morris says Brewster
does not give interviews. Morris, meanwhile, ended years of
anonymity with her 1998 book, Forgiving the Dead Man Walking
-- an autobiographical response to both the movie and Prejean's
A former special education teacher, Morris has a
Web site (www.debbiemorris .net) and a television movie deal in the
works. She now lectures widely on faith-based healing, forgiveness,
and crime victim rehabilitation.
"Crime victims and their families need to
understand our own healing is not contingent upon what happens to
the predator of that crime," she says. "We have the freedom and the
ability to heal and to find joy in life, regardless of what happens
to the perpetrator of the crime. It's not his punishment or lack of
punishment that ultimately matters."
A devout Southern Baptist and self-described
conservative, Morris favors school prayer, opposes gun control and
considers the American Civil Liberties Union "a useless
organization." She supports life sentences for rapists and child
predators. But unlike most other conservatives, she opposes the
death penalty and mandatory minimum-sentencing for drug offenders;
she also sees little utility in crime victims' rights groups.
She and her husband, Brad, a commercial airline
pilot/trainer, try to help prisoners by corresponding with them
through a faith-based national "Pen Pal" network. Morris says she
has corresponded with Vaccaro and hopes to visit him in prison. She
says she has passed a criminal background check, but federal prison
officials have yet to bless her request to visit her convicted
Morris also plans to visit Angola prison in
September with a prison ministry group. "I have a special desire to
go there because Robert Lee Willie was there," she says. And she
wants to move her family back to Madisonville, her hometown and
cradle of her worst nightmares.
On the night of May 31, 1980, Debbie Cuevas, 16,
and Mark Brewster, 21, were sitting in his car on the scenic
Tchefuncte riverfront in Madisonville. It was hot that night. They
were facing each other, each with a back to a car door, talking and
Debbie knew she had violated the 11 p.m. curfew
set by her mother. Friday night had become Saturday morning.
Two men parked a white pick-up truck nearby, got
out and walked toward their car. "You know these folks?" Debbie
asked. Her date turned, but too late. One man put a revolver to
Brewster's head. Then Debbie felt the hand of the other man around
her neck. He pressed a sawed-off shot gun against her cheek.
The men forced the couple into the back of
Brewster's car, promising to release them outside of Covington. When
they stopped, however, they pistol-whipped Brewster and locked him
in the trunk of the car.
Robert Willie turned to Debbie. "Time to get in
the back seat, blondie," he said. "And take off your clothes."
Willie raped her. Joseph Vaccaro held the gun.
The two men then drove their hostages to Alabama. Turning off
Interstate 10, they found a remote dirt road leading into the woods.
They stopped the car and took Brewster out of the trunk. They
ordered Debbie to take his place. "Anything ya'll want to say to
each other before he goes?" asked Willie. The tone was mocking,
She continues: "Mark looked at me and said very
softly, 'I'm so sorry.'
"I tried to smile. 'Everything's going to be OK.
Don't worry about me.'"
The men marched Mark into a clearing and tied him
to a tree. They burned his body with cigarettes, stabbed him once in
the side, cut his throat, shot him in the head and left him to die.
They returned to the car, laughing and making "animal-like" screams
that echoed in the woods. They put their remaining hostage back in
the car and eventually drove back to Louisiana to look for drugs.
At one point, Vaccaro began rambling, Morris
recalls. "I sure hope what happened to our last girlfriend doesn't
happen to you," he said.
"Why? What happened?" she asked.
"Oh! It was terrible!" His voice took on a
strange, trance-like tone. "I don't know what happened, but it was
"Shut up!" Willie interrupted. "Ain't no need to
talk about that."
But Vaccaro continued, spilling the details about
a woman who was "all cut up and stabbed in the chest." The murdered
woman was later identified as Faith Hathaway. They had dumped her
body near Fricke's Cave, near the Bogue Chitto River off Highway 25,
and south of Franklinton.
This time, Willie and Vaccaro returned to the
remote area with Morris. "Relax," Willie told her. "We're just
looking for a place." He did not elaborate.
En route, however, an elderly black man and young
boy -- on foot and with fishing poles -- appeared at a bend in the
road. The old man smiled and waved, unnerving her abductors. Willie
cursed the potential witnesses. "Oughta run them niggers over," he
said. But he drove on.
Morris never saw the old man and the boy again.
Ever since then, she has been hard-pressed to deny the existence of
After deliberating with Vaccaro by the river,
Willie raped Debbie again. They drove her to the trailer home of a
third man, Tommy Holden, where Vaccaro raped Debbie at Willie's
insistence. Holden also made advances but panicked when Cuevas told
him she had been kidnapped and raped by his cohorts. Holden later
forced an argument about her fate.
Morris heard Willie say they should lock her in
the trunk and set the car on fire. Later, he agreed to take her
home. "We're making a big mistake," she heard him say. "We're all
going to end up in prison over this!"'
Willie threatened to kill Morris if she went to
the police. The men released her near a Madisonville area cemetery,
and sped off.
Throughout her ordeal, Morris had the presence of
mind to memorize landmarks and road-markers. She helped the police
find Mark, critically wounded, but alive.
Holden, Willie and Vaccaro were later captured in
Arkansas. Willie and Vaccaro were returned to Louisiana to stand
trial for the murder of Hathaway. FBI agents asked Willie why he had
not killed Debbie, too. "He said when he looked in my eyes, he saw
love." Morris recalls. "He said, 'I just couldn't kill her.'"
But Willie changed his tone after she testified
against him. "He made a lot of threats against me," Morris says, her
voice breaking. "He told someone in an adjoining cell that his
ambition was to get out and kill me. He was going to escape. He was
going to find me and cut me into little pieces so my own mother
wouldn't recognize me."
At the Hathaway trial, Willie tormented the
victim's mother and stepfather -- Elizabeth and Vernon Harvey -- by
declaring in court how much he enjoyed raping their daughter.
A jury convicted Willie of first-degree murder
and sentenced him to death. Newspaper accounts hailed the 16-year-old
girl from Madisonville, whose testimony put Willie in the electric
chair on Dec. 28, 1984. Vaccaro went to prison for his role in the
crimes. Several years after the trial, Holden committed suicide by
On the night of Willie's execution, nearly four
years after the kidnapping, Morris decided to forgive her rapist for
his crimes against herself only.
"As much as I hated the thought of him dying
hating me," she writes in her book, "I realized it might be just as
bad for him to die with me hating him."
'"There was no one to tell -- but God. Lying
there in bed in the dark, I began to pray. Lord, please help me deal
with whatever happens tonight. I really do forgive Robert Willie. As
best I can, anyway. If the execution goes on, please make it fast
and painless. I don't want him to suffer anymore. If he dies
tonight, help his death to heal the Harveys and their pain. Amen.
"With that prayer pronouncing my forgiveness of
Robert Willie, I gained an emotional release, a sense of freedom.
... Somehow, it cut me loose from the control Robert Willie had over
me all those years. I fell asleep."
After Willie's execution, Morris says she learned
that forgiveness is "not an event, but a process." And she found it
easier to forgive Willie, than her mother, God -- and herself.
"It's the people that we love the most that we
have the hardest time forgiving," Morris says.
"I trusted God. I trusted my Mom. I thought they
would take care of me." Her mom had been out on a date the night she
was kidnapped. Morris was angry that she did not know until the next
day that her daughter was gone. Her mother just assumed Debbie got
home safe and was spending the night with her grandparents, who
lived next door. Morris harbored the anger for years.
And, she says, she felt abandoned by God.
Like her mother, now a recovering alcoholic,
Morris began to drink heavily, often in New Orleans. She also
battled depression. After several drinking "blackouts," she joined
Alcoholics Anonymous. She earned a degree at LSU and took a job as a
teacher in St. Tammany Parish. She returned to church and renewed a
friendship with Brad Morris. They married in 1991.
Dead Man Walking was published in 1993;
the movie followed in '95. The film led to a rapport between Morris
and Sister Prejean. "I owe a lot of gratitude to her," Morris says
of the nun, who later earned a Nobel Prize nomination for her
crusade against the death penalty. "She did something for Robert
Willie that I never could have done. She went to him and personally
told him about God ...
"She never saw the brutal, disgusting person that
I saw. And I didn't see the person she knew in prison." Unlike the
movie character, however, Willie expressed no remorse for his crimes
Dead Man Walking moved Morris to write her
own book with a message -- "the hope of forgiveness." She dedicated
it to her children, Conner, 6, and Courtney, 3.
In 1998, the year her book was published, Morris'
message was put to the test. She received an unexpected visit from
an intermediary -- for Joseph Vaccaro.
It was the week of Thanksgiving. Morris was
signing her book at a Books-a-Million bookstore in Gretna. A "very
non-threatening looking" woman waited until nobody else was around.
Then, she approached the author. "She said this is probably going to
come as a surprise to you," Morris recalls. It did.
The woman participated in a church-based
correspondence program with prison inmates. She was a "pen pal" of
Joseph Vaccaro. "She said he wanted to send me a letter and he
wanted my permission to do that," Morris recalls. "He wanted to know
if he could send it through my publisher. He made it clear he didn't
want any personal information about me."
Morris agreed. The bookstore encounter turned out
to be a "gift." "Joseph Vaccaro wrote me a letter, asking me to
forgive him," she says.
She has communicated with the convicted kidnapper
several times since then. "He has been extremely respectful of me.
And he has never sent me a letter or anything without asking for
She decided a little over a year ago that it's
time to visit Vaccaro in prison. "I want to tell him to his face
that I forgive him," she says. "And I want to share with him, more
importantly, God's forgiveness."
She stresses, however, that "forgiving him
doesn't mean I excuse what he did to me, to Mark, and most of all,
to Faith Hathaway."
She would oppose his parole if it came up. She
thinks he's a "long shot" for rehabilitation. However, she says, he
has learned to read and write in prison. "The person I knew when he
kidnapped me would never been able to express the way he has to me
in those letters."
A convict's con game? Morris thinks not. She has
faith. "I have no fear of Joseph Vaquero," Morris says, the steel
returning to her voice. "And I really do not believe he has any
animosity toward me."
Debbie Morris' conservatism appears to defy any
"I believe first and foremost in the value of
every person; it doesn't matter to me what crimes they have chosen
to commit. I don't think most conservatives would say that."
To Morris, the tone of many victims' rights
groups is too militant and angry. "What I needed was not for someone
else to be angry, but for someone else to say that I was OK, that I
wasn't doing anything wrong, that I was still a good person, that I
was still lovable," Morris says. "Helen Prejean told Robert Willie
'you're a child of God and that is enough.' No one said that to me
after I was kidnapped."
She agrees with arguments that individual victims
should not be the final arbiter of clemency for prisoners. "I
forgive Joseph Vaccaro. I don't feel he is in any way a threat to
me, but I don't presume to say he is rehabilitated either," she
says. "There are still consequences for what he did. His crime was
against all of us in society. That is why victims should not have
the right to decide the punishment. ...
"The nature of the crime is important to
consider," Morris adds, noting that there is a difference in being
"young and stupid and doing irresponsible things" and committing
cold-blooded crimes. "Sometimes it just doesn't matter what [violent
criminals] did after their crime. They forfeited their lives.
"These things are difficult for me to say,
because I believe in redemption and I believe in forgiveness, but I
also believe that all of our actions have consequences."
As for rehabilitation, Morris doesn't believe it
comes from any system or program. "I think rehabilitation of violent
criminals has to involve a change of heart," she says. "And we never
know the heart of another person. The best guide that we can see ...
is the fruit of that person, the things that they do."
Morris opposes the death penalty and says that
race and wealth often determine who gets punished and who goes free.
She says she would have been more outspoken if Willie's execution
were today and feels partly responsible for his death. His execution
"sickens me as much as what Robert Lee Willie did to Faith Hathaway.
Two wrongs don't make a right."
Still, there are people, she believes, who can
never re-pay their debt to society. "Robert Willie paid the greatest
price that could be paid, and it did not pay out the debt that he
owed. That is why we need the grace and forgiveness of God."
It's been more than 16 years since Robert Lee
Willie was executed. And Joseph Vaccaro has been locked up for more
than 20 years. Yet, Debbie Morris works hard to face the lingering
fears from the attack-- in parking lots, parks and other public
She still has nightmares, particularly when her
husband is out of town, but with less frequency and less intensity.
"Robert Willie had a lot of power over me for a long time," she says.
"As soon as I awake, he no longer has power over me. I have power
She longs to reclaim her Louisiana hometown. "I
miss the food and the weather and my family. I would love to be able
to live back in Madisonville. Some people find that hard to believe
-- and I would want to live on the riverfront."
She warms to memories of Mardi Gras and seafood
po-boys. She laughs freely; the steel is gone from her voice.
737 F.2d 1372
Robert Lee Willie,
Ross Maggio, Jr., Warden,
Louisiana State Penitentiary,
Circuits, 5th Cir.
Appeal from the United States
District Court for the Eastern District of
Before REAVLEY, RANDALL and WILLIAMS, Circuit
RANDALL, Circuit Judge:
Robert Lee Willie was
convicted in a Louisiana court of the murder of
Faith Hathaway and sentenced to die. After
exhausting his state remedies, Willie filed an
application for federal habeas relief. On March
29, 1984, the district court denied Willie's
application for federal habeas relief and a
certificate of probable cause to appeal. On
March 30, 1984, we granted Willie's motion for a
certificate of probable cause and stayed
Willie's scheduled execution to allow him an
opportunity to address the merits of his appeal.
For the reasons set forth below, we affirm the
district court's denial of the writ of habeas
I. FACTUAL AND PROCEDURAL
Willie was convicted in the
Twenty-Second Judicial District Court of
Washington Parish, Louisiana, of the murder of
Faith Hathaway and received the death sentence.
The Louisiana Supreme Court conditionally
affirmed Willie's conviction but vacated his
sentence. The court remanded the case to the
district court to determine whether a printed
note found near the murder scene created a
reasonable doubt about Willie's guilt. If no
such doubt was created by the note, the district
court was directed to hold a new penalty hearing.
State v. Willie, 410 So.2d 1019 (La.1982).
The trial court conducted an
evidentiary hearing and found that the note had
no significance, and therefore did not create a
reasonable doubt about Willie's guilt. A new
penalty hearing was held, and Willie was again
sentenced to death. On appeal, the Louisiana
Supreme Court affirmed Willie's conviction and
sentence. State v. Willie, 436 So.2d 553
(La.1983). The United States Supreme Court
denied Willie's petition for a writ of
certiorari. --- U.S. ----, 104 S.Ct. 1327, 79
L.Ed.2d 723 (1984).
Willie twice applied for
habeas relief in state district court, and the
court denied both of his petitions without
issuing any opinion. Willie then sought habeas
relief in the Louisiana Supreme Court, but his
petition was also denied without opinion.
Willie then filed a petition
for federal habeas relief and an application for
a stay of execution in the court below. The
district court held an evidentiary hearing on
Willie's claims. In an oral ruling from the
bench, the court denied Willie's petition and
refused to grant a certificate of probable cause
The gruesome details of the
murder that resulted in Willie's conviction can
be briefly summarized here as follows: At
approximately 4:30 a.m. on the morning of May
28, 1980, Willie and Joseph Vaccaro offered a
ride to the victim, Faith Hathaway, outside of
the Lakefront Theatre, a discotheque in
Mandeville, Louisiana. Hathaway, an eighteen-year
old woman, had been celebrating her last night
as a civilian before entering the United States
Instead of taking the victim
home, as she had asked, Willie and Vaccaro took
Hathaway to Fricke's Cave, a heavily wooded,
secluded gorge south of Franklinton, Louisiana.
Willie or Vaccaro, or both, raped Hathaway, and
then one of the men repeatedly stabbed the
victim in the throat while the other held her
hands. On June 1, 1980, Hathaway's clothes and
purse were found approximately one hundred and
fifty yards from her body. The victim's body was
discovered on June 4, 1980. State v. Willie, 410
So.2d at 1023.
On June 3, 1980, Willie and
Vaccaro were arrested in Hope, Arkansas for
unrelated crimes. On June 10, 1980, both men,
still in custody in Arkansas, confessed to
Louisiana police officers that they had abducted
Hathaway, but each accused the other of raping
her and slashing her throat. Id.
II. ISSUES ON APPEAL.
Willie presents nine issues
for review in this appeal. The first four relate
to the guilt phase of his trial. He contends
that his constitutional rights were violated
because: (1) four of the jurors who convicted
Willie participated in the voir dire held during
the trial of his codefendant, Vaccaro; (2) he
was required to exercise two of his peremptory
challenges against jurors who should have been
excused for cause; (3) his confession should
have been suppressed because it was obtained in
violation of the Supreme Court's decision in
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981); and (4) the trial
court's exclusion of jurors who were
unambiguously opposed to imposing the death
penalty resulted in a biased and unfair jury.
Willie's five remaining
contentions center around his resentencing
proceeding. Willie argues that he is entitled to
habeas relief because: (1) the trial court
failed to change the venue of trial; (2) the
trial court improperly excused a juror who did
not unambiguously state that he was incapable of
voting to impose the death penalty; (3) the
prosecutor's closing argument was so prejudicial
that Willie was denied a fundamentally fair
trial; (4) Willie received ineffective
assistance of counsel at his second penalty
hearing; and (5) Willie was not given the
opportunity to prove to the court below that
Louisiana imposes the death penalty in an
invidiously discriminatory manner.
In spite of the fact that
several of the claims raised by Willie are
difficult, the district court denied most of
Willie's claims without setting forth any
findings of fact or conclusions of law upon
which it based its decision, holding only that
none of Willie's constitutional rights had been
We have thus been deprived of
the benefit of the district court's reasoning in
denying Willie's claims. We recognize that the
district court was operating under severe time
constraints because of the imminence of Willie's
execution, and we also recognize the importance
of the district court's functioning within those
constraints if it is possible responsibly to do
More important, however,
particularly in a capital case, is the
requirement that the district court set forth,
albeit briefly and perhaps orally, those
specific findings of fact and conclusions of law
that underlie its ultimate conclusion to grant
or deny relief. Those findings and conclusions,
while they may initially be the source of some
delay, ultimately serve the state's interest (as
well as the petitioner's) by facilitating prompt
and effective appellate review.
We consider each of Willie's
contentions in turn.
III. GUILT PHASE OF THE TRIAL.
A. Jurors at the Vaccaro
Willie initially contends
that he was denied a constitutionally fair trial
because four of the jurors in his trial heard
prejudicial remarks about Willie during the voir
dire conducted at the trial of his co-defendant,
Vaccaro. The trials of Willie and Vaccaro were
severed and held simultaneously in the same
courthouse, with Vaccaro being tried upstairs
and Willie being tried downstairs. As more
veniremen were needed for the voir dire at
Willie's trial, potential jurors that were
present at Vaccaro's voir dire were sent to the
downstairs courtroom, along with veniremen who
had been peremptorily challenged.
Four of the jurors who were
present during part of the voir dire in
Vaccaro's trial served on the jury that
convicted Willie. While present at the Vaccaro
voir dire, they heard the prosecutor explain
Louisiana law on principals, La.Rev.Stat.Ann.
Sec. 14:24 (West 1974), which provides that all
persons concerned in the commission of a crime,
whether or not they directly committed the act
constituting the offense, are held liable as
Vaccaro Trial Transcript Vol. 5 at 43. However,
the prosecutor later clarified to the jury that
"if all the state does is prove that Joe Vaccaro
was there and we don't prove that he knew what
was going on or was in any way involved in it, I
tell you that is not enough for you to convict
him." Id. at 173.
Shortly thereafter, Vaccaro's
counsel posed the following to the jury:
Let me give you another
example, let's say Mr. Vaccaro was there and
let's say he is drunk or on pills or whatever,
and not himself, and let's say that Robert
Willie says hold her hands and Joe doesn't know
what's going on, he holds her hand and Mr.
Willie comes up to her and kills her. Mr.
Vaccaro didn't know he was going to kill her. My
question to you is, in that situation, would you
automatically vote first degree murder on a case
Id. at 176. After asking the
veniremen a few more questions, Vaccaro's
The burden of proof is on the
State therefore to prove the guilt of Joseph
Vaccaro beyond any reasonable doubt. Not only
must they show that Joseph Vaccaro was there and
Joseph Vaccaro might have killed her or taken
part in it, not only must they prove that he
probably took part in it or killed her, they
must prove beyond any reasonable doubt that he
did do it. Now again, it is not enough for the
State to prove that a crime was committed. It is
not enough to prove that Robert Willie killed
Faith Hathaway, but the State must prove that
Joseph Vaccaro was a principal and that he
intended it and that he participated in it.
Id. at 185.
The foregoing excerpts from
the Vaccaro voir dire are examples only of
questions and statements, both by the prosecutor
and by defense counsel, that appear throughout
that voir dire. A reading of that voir dire
indicates to us that any venireman who sat
through very much of it, as the four jurors at
issue here did, would have come away with the
understanding that Vaccaro's defense would be
that it was Willie, not Vaccaro, who stabbed
Faith Hathaway, while Vaccaro sat by, totally
surprised by the events that unfolded, perhaps
intoxicated or drugged or both.
During the guilt phase of
Willie's trial, Willie did not take the stand,
but the tape recorded statement he gave to
Louisiana officials in Arkansas was played to
the jury. In his statement, Willie admitted that
he and Vaccaro had abducted Hathaway. However,
Willie not only claimed that Vaccaro stabbed the
victim, but also asserted that Willie was under
the influence of drugs and alcohol, and that he
did not know that Vaccaro was going to kill
During closing argument,
Willie's counsel reiterated that it was Vaccaro
who killed Hathaway, and that Willie was so
heavily influenced by the effects of alcohol
that he was incapable of possessing the specific
intent to murder Hathaway and thus, that Willie
could not be held liable for her murder.
At the voir dire in Willie's
trial, the trial judge individually asked each
of the four jurors who had been present at the
Vaccaro voir dire whether he or she had read or
heard about the case and whether he or she had
formed any opinion or notion as to Willie's
guilt. None of the four jurors stated that he or
she had formed any opinion as to Willie's guilt,
and each juror affirmed that he or she would
decide the case solely on the evidence presented.
I Willie Trial Transcript Vol. 6 at 276-82.
Despite the fact that none of
these jurors evinced any indication of actual
bias against Willie, Willie now claims that
because four of the jurors that convicted him
had heard Vaccaro's lawyer assert that Willie
stabbed Hathaway, these jurors should be
presumed to have been prejudiced against him.
If Willie can sustain this contention, he would
be entitled to habeas relief because his sixth
amendment right to a trial by an impartial jury
A juror is presumed to be
biased when he or she is apprised of such
inherently prejudicial facts about the defendant
that the court deems it highly unlikely that the
juror can exercise independent judgment, even if
the juror declares to the court that he or she
will decide the case solely on the evidence
presented. See, e.g., United States v. Brown,
699 F.2d 704, 708 (5th Cir.1983); United States
v. Haynes, 398 F.2d 980, 984 (2d Cir.1968), cert.
393 U.S. 1120 , 89 S.Ct. 996, 22 L.Ed.2d
For instance, in Leonard v.
United States, 378 U.S. 544, 84 S.Ct. 1696, 12
L.Ed.2d 1028 (1964) (per curiam), the defendant
was convicted in separate trials of forging
government checks and of transporting forged
instruments in interstate commerce. The two
cases were tried in succession. The jury in the
first case announced its guilty verdict in open
court in the presence of the jury panel from
which the jurors who were to try the second case
were selected. When five jurors from this panel
were selected to serve on the jury in the
defendant's second trial, the defendant objected
but was overruled.
The Supreme Court reversed,
holding that prospective jurors who have heard a
verdict returned against an individual prior to
that person's trial on a similar charge should
be automatically disqualified. Similarly, in
Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct.
1417, 10 L.Ed.2d 663 (1963), the Court presumed
that the jury was prejudiced where a twenty-minute
film of the defendant's confession was broadcast
three times by a television station in the
community where the crime and the trial took
place. Thus, when jurors have participated in a
defendant's prior conviction, or his guilt,
either past or present, appears to have been
conclusively established in their presence,
prejudice may be inevitable.
We note, however, that the
Supreme Court has long held that in order to
have an impartial jury, "[i]t is not required
... that the jurors be totally ignorant of the
facts and issues involved" in a case. Irvin v.
Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6
L.Ed.2d 751 (1961). In Irvin the Court noted
that important cases can be expected to arouse
the interest of the community, and hardly any
prospective juror will not have some impression
or opinion about the merits of the case. 366
U.S. at 722, 81 S.Ct. at 1642.
Thus, the Court held that the
mere existence of any preconceived notion as to
the guilt or innocence of an accused, without
more, is insufficient to rebut the presumption
that a prospective juror is impartial if the
juror can lay aside his or her impression and
render a verdict based on the evidence presented
in court. Id. at 723, 81 S.Ct. at 1642.
The Court will not readily
presume that a juror is biased solely on the
basis that he or she has been exposed to
prejudicial information about the defendant
outside the courtroom. See Smith v. Phillips,
455 U.S. 209, 210-11 n. 1, 102 S.Ct. 940, 948 n.
1, 71 L.Ed.2d 78 (1982) (O'Connor, J.,
concurring). For instance, in Marshall v. United
States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d
1250 (1959), the defendant was convicted of
dispensing certain drugs without a prescription.
During the trial, seven of
the jurors were exposed to various news accounts
disclosing that Marshall had previously been
convicted of forgery, that he and his wife had
been arrested for other narcotics offenses, and
that he had practiced medicine without a license.
Noting that the jurors had been exposed to this
information, the Court reversed Marshall's
conviction, despite the jurors' assurances that
they could be impartial.
In Murphy v. Florida, 421
U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975),
the Court noted, however, that Marshall's
conviction was reversed in the Court's exercise
of its " 'supervisory power to formulate and
apply proper standards for enforcement of the
criminal law in the federal courts,' and not as
a matter of constitutional compulsion." Id. at
797, 95 S.Ct. at 2035 (quoting Marshall v.
United States, 360 U.S. at 313, 79 S.Ct. at
1173). The Murphy Court made it clear that, in
the context of federal habeas proceedings, the
fact that a juror was "exposed to a defendant's
prior conviction or to news accounts of the
crime with which he is charged" does not "presumptively
deprive[ ] the defendant of due process." Id. at
799, 95 S.Ct. at 2036.
In the instant case, we do
not believe that what the four jurors heard
during the Vaccaro voir dire was prejudicial
enough to infer that these jurors were biased.
We do think it is fair to conclude that they
came away from the Vaccaro voir dire having
heard a theory of Vaccaro's defense to the
murder of Faith Hathaway, advanced by Vaccaro's
lawyer primarily in the form of hypothetical
questions, that ultimately turned out at
Willie's trial to be antagonistic to the defense
advanced by Willie.
During the Vaccaro voir dire,
however, neither the prosecutor nor counsel for
the defense disclosed any facts or evidence.
Contrary to Willie's contention, those Willie
jurors who were present during part of Vaccaro's
voir dire did not learn that Vaccaro had
confessed to Hathaway's abduction, but blamed
Willie for the stabbing.
In United States v. Brown,
699 F.2d 704 (5th Cir.1983), the defendant
Brown, a county commissioner, claimed that he
was convicted by a jury that had been prejudiced
by repeated exposure to the voir dires held in
the cases of other commissioners similarly
charged, on similar evidence. Brown also argued
that he was unfairly prejudiced when the trial
judge told the jury that two of the other county
commissioners had pleaded guilty to the charges
During the voir dires in the
other county commissioners' trials that Brown's
jurors witnessed, the prosecutor described the
fraudulent schemes that the commissioners were
charged with, which were similar to the scheme
later proved against Brown at his trial. The
veniremen, who were common both to Brown and to
the other commissioners, were also apprised of
the government witnesses who would testify
against the other commissioners, and those same
witnesses later testified against Brown at his
In refusing to infer bias, we
noted that the Brown jurors had heard no
evidence against any of the other commissioners;
nor did they have the opportunity during the
voir dire to pass upon the credibility of
government witnesses who later appeared in
Brown's trial. We also noted that none of the
Brown jurors had been apprised of the other
commissioners' defenses; whereas here, the four
Willie jurors present at the Vaccaro voir dire
might have discerned that Vaccaro's strategy
would be to accuse Willie. But we find this
distinction alone insufficient to raise a
presumption that Willie's jurors were prejudiced.
In summary, the factors that
the cases have identified as giving rise to a
presumption of prejudice do not exist here. The
four jurors in this case heard no evidence, saw
no witnesses, and were told no facts (as
distinguished from lawyers' hypotheses) at the
Vaccaro voir dire. That these jurors heard a
lawyer's theory of the events that directly
contradicted the theory that Willie advanced at
trial is not sufficient to cause us to presume
prejudice and order habeas relief.
B. Willie's Exercise of
Willie also contends that he
was denied the right to an impartial jury
because he was required to use two of his
peremptory challenges against jurors who
allegedly should have been excused for cause.
At the voir dire in Willie's trial, Mrs. Erroll
Jenkins stated that she had formed an opinion as
to Willie's guilt, but claimed that she could
put her opinion aside and be fair. I Willie
Trial Transcript Vol. 6 at 249-50.
After being peremptorily
challenged by Willie's counsel, Jenkins was sent
to the Vaccaro trial and questioned there the
same day. While Jenkins initially maintained
that, despite the fact that she had formed an
opinion as to Vaccaro's guilt, she could be a
fair juror, she ultimately indicated that she
could not put aside her opinion on that case.
Thus, Vaccaro's attorney
successfully challenged her for cause. Vaccaro
Trial Transcript Vol. 6 at 319-20. A second
venireman, Mrs. Bobby Sue Thomas, also stated
during the voir dire at Willie's trial that she
had formed an opinion as to Willie's guilt, but
claimed that she could still be impartial. I
Willie Trial Transcript Vol. 6 at 149-50, 189.
She was also peremptorily challenged by Willie's
attorney, id. at 203, and was sent upstairs to
the Vaccaro trial. At Vaccaro's voir dire,
Thomas claimed that she did not have any opinion
as to Vaccaro's guilt or innocence. Vaccaro
Trial Transcript Vol. 5 at 129-30.
Willie asserts that based
upon the pretrial publicity about both
defendants, veniremen could not have had an
opinion about Willie's case without having one
with regard to Vaccaro's case as well. Thus,
Willie contends that because Jenkins admitted
that she could not be impartial as to Vaccaro's
guilt, she concealed the fact that she could not
be unbiased in deciding Willie's guilt, and thus
she should have been excused for cause.
Willie also conjectures that
Thomas' inconsistent answers resulted from her
displeasure over being peremptorily challenged
by Willie's attorney. Willie speculates that
after Thomas failed to get on the jury at
Willie's trial, where she admitted having an
opinion but supposedly hid her actual bias,
Thomas allegedly believed that she would succeed
in serving on the Vaccaro jury by denying having
an opinion about that case.
Willie would have us conclude
that Thomas was actually biased against both
defendants, and could not have rendered a fair
decision at either trial. Thus, Willie argues
that because these jurors concealed their bias
and he used his peremptory challenges against
them when he could have challenged them for
cause, our decision in United States v. Nell,
526 F.2d 1223 (5th Cir.1976), requires us to set
aside his conviction.
In Nell, we held that "as a
general rule, it is error to force a party to
exhaust his peremptory challenges on persons who
should be excused for cause, for this has the
effect of abridging the right to peremptory
challenges." 526 F.2d at 1223. We fail to see,
however, how the trial court's conduct of the
voir dire forced Willie to use unnecessarily one
of his peremptory challenges.
There is no allegation here
that the trial court's voir dire of the two
veniremen was inadequate, nor is there any
suggestion that Willie's counsel was in any way
restricted in his questioning of the two
prospective jurors. See, e.g., United States v.
Butera, 677 F.2d 1376, 1383-84 (11th Cir.1982),
459 U.S. 1108 , 103 S.Ct. 735, 74 L.Ed.2d
958 (1983). Nor is there any allegation
that either of the juror's responses to
questions asked during the voir dire revealed
any grounds for challenging them for cause.
Indeed, Willie's counsel himself did not seek to
have either venireman excused for cause.
Because we conclude that our
decision in United States v. Nell was in no way
violated by the trial court here, we cannot
afford Willie relief on this ground.
C. Edwards v. Arizona
Willie also argues that his
confession was obtained in violation of the
Supreme Court's decision in Edwards v. Arizona,
451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378
(1981). In Edwards, the Court held that once a
suspect has "expressed his desire to deal with
the police only through counsel, [he] is not
subject to further interrogation by the
authorities until counsel has been made
available to him, unless the accused himself
initiates further communication, exchanges, or
conversations with the police." 451 U.S. at 485,
101 S.Ct. at 1885. See also Oregon v. Bradshaw,
462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405
(1983); United States v. Cherry, 733 F.2d 1124
On June 3, 1980, Willie and
Vaccaro were arrested in Hope, Arkansas, on
unrelated aggravated rape, aggravated kidnaping,
and attempted murder charges. Following his
arrest, Willie was given his Miranda warnings by
Special FBI Agent Lambert and Lieutenant Duvall
of the Arkansas State Police. Willie was not
interrogated on that date because he refused to
answer Lambert's questions without a lawyer
On June 4, Willie was taken
to Texarkana, Arkansas, and again advised of his
right to an attorney by a United States
Magistrate, who read the charges against him and
set bond. Willie waived his right to an attorney
for the purposes of that hearing and informed
the magistrate that he had an attorney in
Louisiana but did not request his presence.
On June 9, Willie told one of
his jailors that he wanted to talk to Agent
Lambert, who had sought to speak to Willie about
the crimes for which he was arrested in
Arkansas. Willie's request was passed on to
another jailor who, on June 11, apprised Agent
Lambert that Willie wanted to talk to him.
Lambert went to see Willie, advised him again of
his Miranda rights, and took a statement from
Meanwhile, on June 10,
Investigator Varnado of the Washington Parish
District Attorney's Office and Sergeant Sharp of
the St. Tammany Parish Sheriff's Office
interviewed Willie at the jail in Texarkana,
Arkansas, regarding the Hathaway rape and murder.
Before Investigator Varnado and Sergeant Sharp
interviewed Willie, they were informed that
Willie had refused to speak to Agent Lambert
without the services of an attorney about the
federal crimes for which he had been arrested.
Willie was fully advised of his constitutional
rights and expressly stated that he did not want
the advice of an attorney. Willie then gave the
officers an oral statement and a tape recorded
statement that he signed after it was
Willie contends that because
Varnado and Sharp knew that Willie had invoked
his right to an attorney when arrested by Agent
Lambert on June 3, Varnado and Sharp were barred
under Edwards from interrogating him about the
Hathaway rape and murder absent knowledge that
Willie had already reinitiated conversation with
Lambert. We note that Willie does not contest
the Louisiana courts' finding of fact that
Willie reinitiated conversation with Agent
Lambert on June 9.
Willie's argument is, however,
premised on the assumption that once a suspect
invokes the right to an attorney with regard to
questioning about the crime for which he or she
is arrested, Edwards bars all other law
enforcement officials, including those from
other jurisdictions or agencies, from
interrogating the suspect about any related or
Even if we were to assume that Edwards extends
this far, we do not believe that it was violated
in this case; however, we intimate no view as to
whether Willie's assumption is correct.
On June 3, 1980, Willie was
arrested in Arkansas for committing federal
crimes. Once arrested, Willie refused to speak
to the arresting officers about these crimes
unless a lawyer was present. His request was
scrupulously obeyed by the FBI and Arkansas law
On June 9, Willie said that
he wanted to talk to FBI Agent Lambert and later
gave him a statement. Having initially declined
to speak to the FBI about the crimes for which
he was arrested, Willie then reinitiated
communication with Agent Lambert and agreed to
talk to him without counsel.
Thus, Edwards v. Arizona was
obeyed from the time that Willie invoked his
Miranda rights on June 3, until he elected to
make contact with the FBI on June 9. Even if we
assume that the Louisiana officials were subject
to the Edwards rule in this case, once Willie
reinitiated communication with Lambert on June
9, the Louisiana officials were not barred from
questioning Willie about the Hathaway rape and
murder unless he again refused to respond to
such questions without a lawyer. Instead, the
record discloses that he affirmatively waived
counsel and responded to the questions by giving
a statement containing exculpatory aspects.
That the Louisiana officials
were unaware that Willie had decided to
reinitiate conversation with Agent Lambert
before they interviewed him is not dispositive.
The critical inquiry is whether Willie was
further interrogated before he reinitiated
conversation with law enforcement officials. He
was not, and thus Edwards was not violated.
D. Composition of Willie's
Willie next argues that "the
process of excluding from guilt-phase juries
persons who are unwilling to vote for capital
punishment results in guilt-phase juries that
are (a) biased in favor of the prosecution on
the issue of guilt or innocence and (b) not a
fair cross section of the community." Brief for
Petitioner-Appellant at 62.
We rejected this very contention in Sonnier v.
Maggio, 720 F.2d 401, 407-08 (5th Cir.1983),
cert. denied, --- U.S. ----, 104 S.Ct. 1331, 79
L.Ed.2d 726 (1984); see also Smith v. Balkcom,
660 F.2d 573, 575-84 (5th Cir.1981), cert.
459 U.S. 882 , 103 S.Ct. 181, 74 L.Ed.2d
148 (1982); Spinkellink v. Wainwright,
578 F.2d 582, 583-96 (5th Cir.1978), cert.
440 U.S. 976 , 99 S.Ct. 1548, 59 L.Ed.2d
796 (1979), and need not dwell on it
IV. PENALTY PHASE OF THE
A brief review of the
evidence adduced at Willie's second penalty
hearing will serve to place his contentions in
At the hearing, the
prosecution played to the jury Willie's tape
recorded admission that he and Vaccaro had
abducted Hathaway, and that Vaccaro had stabbed
her in the throat. Testimonial and documentary
evidence established that Hathaway was found
dead lying on her back with her legs spread far
apart and with her arms extended over her head.
The doctor who performed the autopsy on the
victim testified that Hathaway must have been
held in this position until she died or lost
consciousness. The doctor also testified that
she had been raped and that she had suffered
extensive wounds in her neck and throat.
Willie took the stand and
testified that when Vaccaro stabbed Hathaway,
Hathaway's back was to Vaccaro, with her head in
his lap. Willie claimed that he was straddled
across her legs and only held her hands when
Vaccaro stabbed her. On cross-examination,
however, the prosecutor suggested that it had to
have been Vaccaro who was holding Hathaway's
hands while she was being stabbed by Willie,
since the doctor's testimony established that
the victim's arms must have been held over her
head until she lost consciousness, and,
according to Willie's own testimony, Vaccaro was
the only one who was in a position to do that.
Willie also told the jury
that he had been convicted of escaping from
prison and burglary. He testified that he was
presently serving three consecutive life
sentences for kidnaping and conspiracy to kidnap.
He explained that he had used drugs from the age
of fifteen, and that on the night of Hathaway's
murder he was heavily under the influence of
drugs and alcohol.
The prosecutor suggested,
however, that despite the alleged impairment of
Willie's senses that night and the following
morning, the statement that Willie gave to
Varnado and Sharp in Arkansas was extremely
detailed as to the events that had transpired on
May 28, 1980.
Willie's aunt also testified
at the penalty hearing, and described Willie's
difficult childhood, including the fact that he
had been shuttled among relatives and that his
father had been imprisoned when Willie was a
child. She also testified that Willie had used
drugs since the age of fifteen.
Following arguments by
counsel and instructions by the court, the jury
retired to deliberate. The jury found two
aggravating circumstances: (1) That the
defendant was engaged in the perpetration or
attempted perpetration of aggravated rape; and
(2) that the offense was committed in an
especially heinous, atrocious, or cruel manner.
See La.Code Crim.Proc. art. 905.4 (West Supp.1983).
The jury recommended the death penalty.
A. Change of Venue.
Willie contends that his
sixth amendment right to an "impartial jury" at
his resentencing trial was violated because the
trial court failed to change the venue.
He asserts that the pretrial publicity resulting
between his first and second trials was so
pervasive that it was impossible for him to
receive a fair trial.
As a general rule, a state
defendant who seeks habeas relief as a result of
pretrial publicity must demonstrate an actual,
identifiable prejudice on the part of members of
the jury that is attributable to that publicity.
Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at
1642; Mayola v. Alabama, 623 F.2d 992, 996 (5th
Cir.1980), cert. denied,
451 U.S. 913 , 101 S.Ct. 1986, 68 L.Ed.2d
Willie does not contend that
members of the jury were actually prejudiced
against him as a consequence of the publicity
preceding his resentencing trial; rather, he
seeks to invoke the rule of presumed prejudice
established in Rideau v. Louisiana, supra. As we
have discussed, in Rideau the Supreme Court
overturned the conviction of a habeas petitioner
whose confession had been broadcast three times
by a local television station to large audiences
in the Louisiana parish from which the jury was
drawn and in which he was tried less than two
months later. In setting aside the state
defendant's conviction, the Court did so "without
pausing to examine a particularized transcript
of the voir dire examination of members of the
jury." 373 U.S. at 727, 83 S.Ct. at 1419.
Thus, in Mayola v. Alabama,
supra, we noted that, under Rideau, "where a
petitioner adduces evidence of inflammatory,
prejudicial pretrial publicity that so pervades
or saturates the community as to render
virtually impossible a fair trial by an
impartial jury drawn from that community, '[jury]
prejudice is presumed and there is no further
duty to establish bias.' " 623 F.2d at 997 (quoting
United States v. Capo, 595 F.2d 1086, 1090 (5th
Cir.1979), cert. denied sub nom. Lukefahr v.
444 U.S. 1012 , 100 S.Ct. 660, 62 L.Ed.2d
641 (1980)). See also Murphy v. Florida,
421 U.S. at 798-99, 95 S.Ct. at 2035; Coleman v.
Zant, 708 F.2d 541, 544 (11th Cir.1983); Calley
v. Callaway, 519 F.2d 184, 204 (5th Cir.1975)
(en banc), cert. denied sub nom. Calley v.
425 U.S. 911 , 96 S.Ct. 1505, 47 L.Ed.2d
760 (1976); Pamplin v. Mason, 364 F.2d 1,
4-5 (5th Cir.1966).
Willie alleges that the
pretrial publicity before his second penalty
hearing was so inflammatory that the jury could
be presumed to be prejudiced because the
parish's leading newspapers carried front-page
stories that disclosed, inter alia, the
following facts that were not introduced in
evidence at Willie's resentencing trial: (1) his
prior death sentence; (2) Vaccaro's counsel's
statement that Willie had stabbed Hathaway; (3)
that a federal prisoner testified at Willie's
initial penalty hearing that Willie had
confessed to killing Hathaway; (4) that Willie
had confessed to committing unrelated crimes of
rape, kidnaping, and attempted murder, and that
he had been sentenced to life imprisonment; (5)
that Willie's mother had disclosed that Willie
had threatened her life; and (6) that the
Louisiana Supreme Court had vacated Willie's
first death sentence because the prosecutor had
improperly argued that Willie might some day be
pardoned or paroled if given a life sentence.
Based on the evidence adduced
at the evidentiary hearing held before the
district court, we do not find that the pretrial
publicity that resulted before Willie's
resentencing trial was so inherently prejudicial
or inflammatory that the jury could be presumed
to be biased.
More than two years elapsed
between the time of the murder and Willie's
conviction, when the crime was given the most
attention and when the parish's citizens were
most likely to have heard about the incident,
and Willie's second penalty hearing. See, e.g.,
Patton v. Yount, --- U.S. ----, 104 S.Ct. 2885,
81 L.Ed.2d 847 (1984) (passage of time between
first and second trial can be highly relevant
fact); United States v. Capo, 595 F.2d at 1090 (trial
began almost a year after the murder).
Of the sixteen newspaper
articles that Willie introduced at the
evidentiary hearing before the federal district
court, ten appeared between October and December
1980, more than a year and a half before
Willie's resentencing trial. See Murphy v.
Florida, 421 U.S. at 802, 95 S.Ct. at 2037 (no
presumption of unfair prejudice where news
articles concerning defendant had appeared more
than seven months before trial).
Moreover, as the district
court found, the news stories were primarily
factual in nature. Id.; see also Calley v.
Callaway, 519 F.2d at 206 ("A prejudicial
publicity claim must be viewed differently when
the news accounts complained of are 'straight
news stories rather than invidious articles
which would tend to arouse ill will and
vindictiveness.' ") (quotingBeck v. Washington,
369 U.S. 541, 556, 82 S.Ct. 955, 963, 8 L.Ed.2d
98 (1962)); Hale v. United States, 435 F.2d 737,
748 (5th Cir.1970) ("no editorials or cartoons
denounced appellant"), cert. denied,
402 U.S. 976 , 91 S.Ct. 1680, 29 L.Ed.2d
While we readily concede that
this gruesome case and its participants achieved
a significant degree of notoriety in Washington
Parish, we note that "the Supreme Court has held
that the constitutional standard of fairness
requires only that the accused 'have a panel of
impartial, "indifferent" jurors,' who base their
decision solely on the evidence produced in
court; it does not require jurors to be wholly
ignorant of the case." Mayola v. Alabama, supra,
at 998 (quoting Murphy v. Florida, 421 U.S. at
799-800, 95 S.Ct. at 2036).
In Mayola v. Alabama, we
noted that because "virtually every case of any
consequence will be the subject of some press
attention ... the Rideau principle of
presumptive prejudice is only 'rarely'
applicable." 623 F.2d at 997 (citing Nebraska
Press Association v. Stuart, 427 U.S. 539, 96
S.Ct. 2791, 49 L.Ed.2d 683 (1976)). We also
observed that only in Rideau has the Supreme
Court reversed a state court conviction on the
basis of presumed prejudice deriving solely from
pretrial publicity. 623 F.2d at 997.
Moreover, in Calley v.
Callaway, supra, we recognized that "[w]e cannot
expect jurors to live in isolation from the
events and news of concern to the community in
which they live." Id. at 205. Willie does not
contend that the jury could be presumed
prejudiced simply because it had been reported
that he had been convicted of the brutal murder
of Faith Hathaway; the jury was apprised of this
fact at the opening of the second penalty trial.
Although the prejudicial
information that Willie has cited was publicized
in Washington Parish, we do not find that these
disclosures were so inherently prejudicial that
a jury formed from the parish's inhabitants
could be presumed to be biased. The prejudicial
impact of these statements was diminished
because they were reported in a straightforward
manner and, in most instances, appeared more
than a year before the resentencing proceeding.
Thus, because this was not a
situation where " 'the trial atmosphere ... [was]
utterly corrupted by press coverage,' " Dobbert
v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290,
2303, 53 L.Ed.2d 344 (1977) (quoting Murphy v.
Florida, 421 U.S. at 798, 95 S.Ct. at 2035), or
where "the press saturated the community with
sensationalized accounts of the crime," United
States v. Capo, 595 F.2d at 1090, we cannot
grant Willie relief on this ground.
B. The Witherspoon Issue.
Willie also attacks the
validity of his death sentence on the ground
that one of the veniremen at his resentencing
trial was improperly excluded for cause in
violation of Witherspoon v. Illinois, 391 U.S.
510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
In Witherspoon, the Supreme
Court set aside a defendant's death sentence
where members of the venire had been excluded
solely because they had conscientious scruples
against capital punishment. The Court held that
a potential juror could not be excused for cause
on the basis of his or her opposition to the
death penalty unless he or she was "irrevocably
committed, before the trial has begun, to vote
against the penalty of death regardless of the
facts and circumstances that might emerge in the
course of the proceedings." Id. at 522 n. 21, 88
S.Ct. at 1777 n. 21.
Witherspoon makes clear that
prospective jurors at Willie's resentencing
proceeding could be excluded only if they made
it unmistakably clear that they would
automatically vote against the imposition of
capital punishment without regard to any
evidence that might be developed at the trial of
the case before them. Id.; Granviel v. Estelle,
655 F.2d 673, 677 (5th Cir.1981), cert. denied,
455 U.S. 1003 , 102 S.Ct. 1636, 71 L.Ed.2d
Willie contends that
venireman Robert Magee's answers to questions
posed at the voir dire showed that he was
uncertain whether he would automatically vote
against the death penalty. In the face of such
ambiguity, Willie argues that the trial court
should not have excluded Magee for cause. During
the voir dire, the trial judge asked Magee:
THE COURT: Mr. Magee, did you
say you did not believe in the death penalty?
JUROR MAGEE: Yes, sir.
THE COURT: Are you telling us
you would therefore automatically vote for life
JUROR MAGEE: Yes, sir.
THE COURT: You wouldn't
consider the death penalty, in other words, you
have two options, and you are telling us you
would not under any circumstances consider one
option, and that would be the death penalty?
JUROR MAGEE: Yes, sir.
THE COURT: No matter what the
facts and circumstances of the case may be?
JUROR MAGEE: No, sir, I am
kind of both sided. I don't know.
THE COURT: Well, are you
saying in this or any case that you would
automatically vote against the death penalty?
JUROR MAGEE: At this time.
II Willie Trial Transcript
Vol. 2 at 46-47.
Shortly thereafter, Willie's
counsel asked Magee:
COUNSEL: Now if the judge
tells you what you have to find before you can
bring back the death penalty, what the
aggravating circumstances, what the mitigating
circumstances are, could you follow the
instructions the judge gives you and consider
the death penalty[?]
JUROR MAGEE: I suppose not. I
Id. at 50-51.
The court then asked Magee
and another prospective juror:
THE COURT: Well, you have to
examine your conscience now and tell us whether
under any circumstances you would be able to
consider bringing back the death penalty or
whether you would automatically exclude or
eliminate the death penalty as a possible
verdict in this case.
JUROR POWELL: I could not
bring it back.
THE COURT: Okay, and is that
the same with you, Mr. Robert Magee?
JUROR MAGEE: Yes, sir.
Id. at 54.
Although it is apparent that
Magee expressed some uncertainty as to whether
he would automatically vote against the death
penalty in any case, we believe that at the
conclusion of the court's voir dire, he
unambiguously asserted that he could not vote
for the death penalty under any circumstances.
Our past decisions have made it clear that even
though a venireman may equivocate initially, "exclusion
comports with our interpretation of Witherspoon
if the juror ultimately concludes that he or she
opposes the death penalty irrevocably." Sonnier
v. Maggio, 720 F.2d at 405 (citing Williams v.
Maggio, 679 F.2d 381, 385-89 (5th Cir.1982) (en
banc), cert. denied, --- U.S. ----, 103 S.Ct.
3553, 77 L.Ed.2d 1339 (1983)).
Thus, we conclude that the trial court properly
excluded Magee under Witherspoon v. Illinois,
C. Prosecutorial Argument.
Willie next asserts that the
prosecutor's closing argument was so
inflammatory and prejudicial that his second
sentencing trial was fundamentally unfair.
Specifically, he notes that the prosecutor
argued to the jury:
Now let me ask you this, and
this is the law. Suppose that through an act of
God that one of you at the moment that Robert
Willie is between her legs and that Joe Vaccaro
is holding her hands, that one of us walked up
on that scene, nude girl, blind-folded, probably
screaming, scared to death, and God willed it
that we had a gun, I think almost everyone of us
without hesitation would have blown them both
away and that we'd have grabbed that little girl
and if we had a blanket we'd have wrapped her,
and we would have hugged her, and we would have
been proud of ourself that we saved her life,
and we wouldn't have had one bit of remorse that
we used the gun and we'd have been right under
the law. The law says that we would have been
right to do exactly what we did. Well, if we
have that right and the law says that we have
that right, as it does, then we also have the
right to impose the ultimate penalty on Robert
II Willie Trial Transcript at
188-89. Willie also contends that the
prejudicial effect of this statement was
magnified since his counsel did not object to it,
thus depriving Willie of a curative instruction
from the court.
prosecutor's argument was improper because it
suggested to the jury that it could impose the
death penalty if it would have been justified in
using lethal force in defense of the victim.
This argument misstates the law regarding
Louisiana's scheme of capital punishment, which
does not allow the jury to impose the death
penalty simply because lethal force could have
been used in defense of the victim. See La.Code
Crim.Proc. art. 905 et seq. (West Supp.1983).
The question is, however, whether this remark
was so prejudicial that it requires Willie's
conviction to be overturned.
Our review of the propriety
of prosecutorial comments made during a state
trial is "the narrow one of due process and not
the broad exercise of supervisory power that [we]
would possess in regard to [our] own trial court."
Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94
S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).
Generally, "we may overturn a state court
conviction only if the complained-of conduct has
made the trial fundamentally unfair." O'Bryan v.
Estelle, 714 F.2d 365, 387 (citing Donnelly v.
DeChristoforo, supra, at 645, 94 S.Ct. at 1872),
cert. denied sub nom. O'Bryan v. McKaskle, ---
U.S. ----, 104 S.Ct. 1015, 79 L.Ed.2d 245
(1984); see also Passman v. Blackburn, 652 F.2d
559, 567 (5th Cir.1981), cert. denied,
455 U.S. 1022 , 102 S.Ct. 1722, 72 L.Ed.2d
141 (1982); Cobb v. Wainwright, 609 F.2d
754, 756 (5th Cir.), cert. denied,
447 U.S. 907 , 100 S.Ct. 2991, 64 L.Ed.2d
Generally, in habeas corpus
cases we have held that in order for a defendant
to establish that the prosecutor's remarks
rendered his or her trial fundamentally unfair,
he or she "must demonstrate either persistent
and pronounced misconduct or that the evidence
was so insubstantial that (in probability) but
for the remarks no conviction would have
occurred." Fulford v. Maggio, 692 F.2d 354, 359
(5th Cir.1982), rev'd on other grounds, 462 U.S.
111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983). See
also Bronstein v. Wainwright, 646 F.2d 1048,
1056 (5th Cir.1981) (weak case against defendant
will cause prosecutor's improper comments to
assume greater significance); Higgins v.
Wainwright, 424 F.2d 177, 178 (5th Cir.) ("statement
complained of did not rise to the level of a
denial of due process when considered in light
of the evidence against appellant"), cert.
400 U.S. 905 , 91 S.Ct. 145, 27 L.Ed.2d
Louisiana employs a
bifurcated trial procedure that confers upon the
jury the responsibility of imposing the death
penalty. The jury considers relevant statutory
and mitigating circumstances.
At least one statutory aggravating circumstance
must be found in order to recommend that the
death penalty be imposed.
If the jury fails to agree on
a recommendation or unanimously finds the
sentence of death inappropriate, the trial court,
which is required to follow the recommendation
of the jury, imposes a sentence of life
imprisonment without benefit of probation,
parole, or suspension of sentence.
See State v. Sonnier, 402 So.2d 650, 657
(La.1981), cert. denied, --- U.S. ----, 103 S.Ct.
3571, 77 L.Ed.2d 1412 (1983).
We do not believe that the
prosecutor's erroneous discussion of the use of
justifiable force was so prejudicial that Willie
was deprived of due process. We reach this
conclusion because, based on our review of the
arguments and evidence presented as a whole, we
do not think that the jury's sentencing
recommendation was influenced by the
prosecutor's improper comments. Although the
jury could have imposed the death penalty in the
presence of only a single aggravating
circumstance, in this case the jury found two:
(1) that the defendant was engaged in the
perpetration or attempted perpetration of
aggravated rape, and (2) that the offense was
committed in an especially heinous, atrocious or
cruel manner. There was little mitigating
Moreover, we note that
immediately following the prosecutor's improper
argument, the trial court correctly instructed
the jury as to the requirements of Louisiana law
for assessing the death penalty, which helped to
compensate for the lack of any contemporaneous
curative instruction. See Bronstein v.
Wainwright, 646 F.2d at 1056. See also State v.
Monroe, 397 So.2d 1258, 1271 (La.1981), cert.
denied, --- U.S. ----, 103 S.Ct. 3571, 77 L.Ed.2d
D. Ineffective Assistance
Willie also seeks to have us
set aside his sentence because he was assertedly
denied effective assistance of counsel during
the second penalty phase of the trial.
Willie alleges that his counsel was ineffective
because (1) he failed to move for a change of
venue or take other protective measures to
shield the jury from the pretrial publicity that
occurred prior to Willie's resentencing; (2) he
failed to object to prejudicial remarks made by
the prosecutor during closing argument; and (3)
he failed to produce evidence of certain
mitigating factors that might have influenced
the jury into recommending life imprisonment.
Willie also asserts that one of his attorneys
had a conflict of interest, and thus that his
sentence has to be aside under Cuyler v.
Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d
In Strickland v. Washington,
--- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the Supreme Court enunciated the
standards to be applied when reviewing a claim
of ineffective assistance of counsel. There, the
A convicted defendant's claim
that counsel's assistance was so defective as to
require reversal of a conviction or death
sentence has two components. First, the
defendant must show that counsel's performance
was deficient. This requires showing that
counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment.
Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that renders
the result unreliable.
Id. at 2064.
In determining whether a
defendant has met his burden of showing that
counsel was ineffective, we need not address
both components of the Strickland v. Washington
test if the defendant makes an insufficient
showing on one. Id. at 2069. The Court
instructed that "[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will
often be so, that course should be followed." Id.
at 2070. Because we do not believe that Willie
suffered sufficient prejudice to warrant setting
aside his conviction, that is the course we
shall indeed take.
An error by counsel, even if
professionally unreasonable, does not require
setting aside a defendant's conviction if the
error had no effect on the judgment. Thus, it is
insufficient for the defendant to show that
counsel's errors had some possible effect on the
verdict. "The defendant must show that there is
a reasonable probability that, but for the
counsel's unprofessional errors, the result of
the proceeding would have been different." Id.
The Court held that when a
defendant challenges a death sentence "the
question is whether there is a reasonable
probability that, absent the errors, the
sentencer--including an appellate court, to the
extent it independently reweighs the evidence--would
have concluded that the balance of aggravating
and mitigating circumstances did not warrant
death." Id. at 2069.
At Willie's second penalty
hearing, Willie's counsel renewed all motions
made at the first trial, which included a motion
for a change of venue. However, counsel failed
to present the trial court with any evidence of
pretrial publicity preceding the second trial
that would support the change of venue motion,
and Willie argues that had counsel done so, the
motion would have been granted.
We disagree. Although
Willie's counsel moved for a change of venue for
Willie's first trial, it was denied and affirmed
on appeal. State v. Willie, 410 So.2d at
1023-24. In affirming the trial court, the
Louisiana Supreme Court noted that "the great
bulk of publicity consisted of straight news
reporting, which occurred nearly two months
before trial." Id. at 1024.
The court also found that
although the crime was "vile and outrageous,"
and had been "thoroughly covered by the news
media," it was not attended by other
exacerbating factors such as racial strife; in
fact, the court noted that Willie and the victim
were of the same race, and that neither was a
resident of the parish in which the crime
occurred and the trial was held. Id.
The court also found that
while almost all of the fifty-two prospective
jurors had read or heard about the case, only
ten said that they had formed any opinion as to
Willie's guilt and, of those ten, six said they
were unable to set aside that opinion and render
a verdict based on the evidence presented at
trial. Id. Had Willie's counsel presented the
trial court with the evidence of pretrial
publicity that was introduced in the district
court, we do not believe that there is a
reasonable probability that the trial court
would have been any more disposed to grant a
change of venue. Most of the pretrial publicity
occurred not two months but over a year before
the second trial. It remained noninflammatory
and primarily factual in nature.
At trial, the court asked
each juror whether he or she had read or heard
anything about the case that would make him or
her incapable of being impartial, and only two
jurors responded that they would not be able to
render a verdict based on the evidence.
Therefore, we do not believe that Willie was
prejudiced in this instance because, absent the
alleged error, we are not convinced that there
is a reasonable probability that the trial court
would have granted a change of venue.
Willie also contends that
counsel's voir dire was inadequate because he
failed to ask the veniremen whether they had
read or heard about the case, whether they had
an opinion and, if they did have an opinion,
whether they could disregard it and be impartial.
However, the trial court
asked each member of the jury whether he or she
had read any newspaper accounts or heard any
discussion of what purported to be the facts of
the case that would prevent him or her from
rendering a verdict based solely on the evidence
presented at trial. Based on the court's
inquiries, some jurors were excused for bias.
Thus, we believe that there is no reasonable
likelihood that counsel would have established
actual prejudice on the part of those jurors who
Willie also asserts that his
attorney's failure to object either at trial or
on direct appeal to the prosecutor's improper
argument during the resentencing proceeding
constituted ineffective assistance of counsel.
However, the lack of such an objection did not
have the devastating impact attributed to it by
Willie. Under Louisiana law, the Louisiana
Supreme Court must review all death sentences to
determine whether they were influenced by "passion,
prejudice, or other arbitrary factors."
La.Sup.Ct.R. 28, La.Code Crim.Proc. art. 905.9 (West
Thus, the lack of an
objection did not preclude review of this issue.
See, e.g., State v. Berry, 391 So.2d 406, 415
(La.1980), cert. denied,
451 U.S. 1010 , 101 S.Ct. 2347, 68 L.Ed.2d
Moreover, we do not believe that the
prosecutor's erroneous argument had any material
effect on the jury's recommendation. See supra
Next, Willie argues that, in
general, counsel's overall performance at the
penalty hearing was deficient. Once again, we
find Washington v. Strickland 's prejudice prong
is dispositive of this argument, because we are
not persuaded that there is a reasonable
probability that Willie's counsel's performance
affected the result of the resentencing
Willie's principal contention
is that his attorney placed too much emphasis on
Vaccaro's culpability, ignoring in the process
other mitigating evidence that allegedly would
have made the difference. Willie contends that
his counsel never contacted numerous relatives
and friends who were prepared to testify about
Willie's troubled childhood. However, both
Willie and an aunt who had cared for him as a
child discussed Willie's difficult childhood and
his drug addiction.
Willie also contends that his
counsel failed to produce any evidence of
Willie's mental condition. However, the only
evidence that Willie introduced in the federal
district court regarding his mental state was an
affidavit obtained from a psychiatrist who had
never examined Willie and whose conclusions were
based solely upon representations made to him by
Willie's present counsel, and two affidavits,
from Willie's aunt and a close friend, who had
no medical or psychiatric training, and whose
opinions were not premised on specific facts or
We do not believe that the
outcome of the jury's deliberations, in light of
the state's evidence showing the aggravated
circumstances of the crime, would have been
altered by other defense witnesses who merely
told more about the defendant's troubled
The evidence presented by the
state in support of its request for the death
penalty was not only substantial but undoubtedly
left a deep impression on the jury. A taped
confession given by Willie described how the
victim was repeatedly stabbed in the throat.
A medical doctor graphically
described the victim's wounds, including those
suffered in self-defense, and the fact that her
necklace and locket were found embedded in her
throat. He also described the tear in her vagina
that showed she had been raped, and remarked
that her death had indeed been a painful one.
Willie testified and showed little remorse for
his crime. The jury was also apprised of
Willie's prior convictions, including those of
rape and attempted murder.
In light of the foregoing, we
conclude that even if Willie's counsel had
offered the mitigating evidence that Willie has
discussed in his petition, that there is no
reasonable probability that the omitted evidence
would have changed the jury's conclusion that,
in the face of the overwhelming aggravating
circumstances, the death penalty should be
invoked. Strickland v. Washington, 104 S.Ct. at
Finally, Willie contends that
counsel failed adequately to prepare him to
testify at the penalty hearing. Willie asserts
that this lack of preparation resulted in
Willie's "disastrous" performance before the
jury. However, in light of the overwhelming
aggravating circumstances that are present in
this case, we are not persuaded that there is a
reasonable probability that Willie suffered any
prejudice as a result of his attorney's alleged
failure to prepare him to testify.
Willie's conflict of interest
allegation requires a somewhat different
analysis. In Cuyler v. Sullivan, supra, the
Court held that prejudice is presumed when
counsel is burdened by a conflict of interest.
446 U.S. at 345-50, 100 S.Ct. at 1716-19. See
also Strickland v. Washington, 104 S.Ct. at
2067. But prejudice is presumed "only if the
defendant demonstrates that counsel 'actively
represented conflicting interests' and 'that an
actual conflict adversely affected his lawyer's
performance.' " Strickland v. Washington, 104
S.Ct. at 2067 (quoting Cuyler v. Sullivan, 446
U.S. at 350, 348, 100 S.Ct. at 1719, 1718).
We do not need to deal with
the question whether one of Willie's lawyers at
the second sentencing hearing (who represented
Vaccaro at his trial) actively represented
conflicting interests because we conclude that
Willie has adduced no evidence that the alleged
conflict affected his attorney's performance
either before or during his resentencing
Discriminatory Application of the Death Penalty.
Finally, Willie's petition
alleges that the death penalty in Louisiana is
discriminatorily imposed against males and poor
persons, of which classes Willie asserts himself
a member, and because the death penalty is
imposed in such an arbitrary and capricious
manner, carrying out his sentence would be
However, Willie did not
adduce any evidence to support such an
allegation in the district court, but instead
made a motion for discovery and asked the court
for funds to develop such evidence. He also
moved for a continuance. The district court
denied all of these requests.
Under 28 fol. U.S.C. Sec.
2254 (1982), Rule 6, the district court, in its
discretion, may grant discovery if good cause is
shown. Since Willie made only conclusory
allegations regarding this claim, we do not
believe the district court abused its discretion
in denying discovery.
Moreover, Willie has cited no
authority standing for the proposition that a
habeas petitioner is entitled to funds to
develop such evidence on the basis of mere
conclusory allegations. Finally, we hold that
the district court did not abuse its discretion
in refusing to grant a continuance. Hicks v.
Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981);
Peters v. Kiff, 491 F.2d 967, 968 (5th
We have examined each of
Willie's claims and conclude that he is not
entitled to habeas relief. Thus, the judgment of
the district court is AFFIRMED, and the stay of
execution is VACATED.
Petitioner's rights under the
laws and Constitution of Louisiana and the Sixth,
Eighth and Fourteenth Amendments to the United
States Constitution were violated by the fact
that at least four of the jurors who voted to
convict him had heard Vaccaro's attorney make
the highly prejudicial statements about
Petitioner in the upstairs courtroom.
We note that throughout this
petition, Willie asserts that each alleged
constitutional error, because he has been
sentenced to die, violates his eighth amendment
right to be free from cruel and unusual
All persons concerned in the
commission of a crime, whether present or absent,
and whether they directly commit the act
constituting the offense, aid and abet in its
commission, or directly or indirectly counsel or
procure another to commit the crime, are
We have already noted that
Marshall is not applicable to habeas settings.
In United States v. Williams, we applied
Marshall in a direct criminal appeal, explicitly
recognizing that the Marshall rule afforded the
defendant more protection from prejudice than is
constitutionally required. 568 F.2d at 469.
In his petition for habeas
relief, Willie also asserts that during closing
argument the prosecutor suggested that it was
possible that Willie had given his confession
because he believed that Vaccaro might have
implicated Willie in the murder. Willie contends
that, after hearing this, the four Willie jurors
present at Vaccaro's voir dire would have even
more reason to believe that Vaccaro had told
Louisiana officials that Willie had stabbed
Hathaway. While it was improper for the
prosecutor to even suggest that Vaccaro might
have implicated Willie in the murder, we do not
believe that the prosecutor's comment coupled
with what the four Willie jurors heard at
Vaccarro's voir dire deprived Willie of a trial
by an impartial jury.
Two of Petitioner's twelve
peremptory challenges were used against jurors
who were actually biased against him. This
violated Petitioner's rights under the Sixth,
Eighth and Fourteenth Amendments to the United
The State's principal
evidence against Petitioner at his trial and his
second sentencing proceeding was a statement the
Petitioner made on June 10, 1980, while in
custody, to Investigator Varnado of the
Washington Parish District Attorney's office and
Sergeant Donald Sharp of the St. Tammany Parish
Sheriff's office. At the time they initiated
this interrogation, Investigator Varnado knew
that during the prior week, while in custody,
Petitioner had refused to make a statement to
other law enforcement officials because no
lawyer was present on his behalf and Sergeant
Sharp knew that Petitioner wanted to talk with
an attorney. Petitioner did not in any way
initiate his discussion with Investigator
Varnado and Sergeant Sharp. (Neither of them has
ever claimed to have been aware that on June 9,
1980 Petitioner had expressed an interest in
speaking with an FBI agent. Even the FBI agent
in question did not learn until June 11, 1980,
that Petitioner wished to speak with him.)
[I]t is apparent that the per
se rule of Edwards v. Arizona, bars the use of
Petitioner's statement even though the law
enforcement official to whom Petitioner
expressed his unwillingness to speak without the
presence of an attorney and the law enforcement
officials who obtained Petitioner's statement
were different people, were investigating a
different crime and were from a different
During the selection of the
jury at Petitioner's trial in October 1980,
several prospective jurors were excused by the
Court because of their conscientious or
religious scruples against the death penalty.
The exclusion of these jurors caused
Petitioner's trial jury to be unrepresentative
and biased in favor of the prosecution on the
issue of Petitioner's guilt or innocence of the
crime with which he was charged, in violation of
his rights guaranteed by the Sixth, Eighth and
Fourteenth Amendments to the Constitution of the
The failure to change the
venue of Petitioner's ... second sentencing
proceeding ... violated Petitioner's rights
under the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
Willie's counsel moved for a
change of venue for Willie's first trial, but
this motion was denied by the trial court and
affirmed on appeal. State v. Willie, 410 So.2d
at 1023-24. Although at the second sentencing
trial Willie's counsel secured a ruling from the
trial court that all motions made at the first
trial were considered to be preserved, he
alleged no facts, nor did he introduce any new
evidence regarding pretrial publicity that had
elapsed between the two proceedings
necessitating a change of venue. Our
determination of Willie's claim is based on
exhibits introduced at the district court's
Potential jurors were struck
for cause at Petitioner's second sentencing
proceeding because of their views about capital
punishment. Some of these excusals for cause
violated Petitioner's rights under the Sixth,
Eighth and Fourteenth Amendments to the United
Willie only appeals the
excusing of one juror on this ground.
[T]he trial judge
unconstitutionally excused for cause ...
venireman, Robert J. Magee. Mr. Magee's answers
reflect extreme indecisiveness--not the
unambiguous inability to impose the death
sentence which is required for a proper
Witherspoon excusal.... [W]hen the judge
suddenly returned to Mr. Magee and asked "Okay,
and is that the same with you, Mr. Robert
Magee?", ... Mr. Magee replied "Yes, sir," [and]
the court excused him for cause.
Under the circumstances, the
ultimate question posed to the vacillating
venireman, Mr. Magee, viz, "is that the same
with you," was an insufficient basis for his
Petitioner-Appellant at 54-55 (emphasis in
We have expressly rejected
the proposition that "exclusion of a venireman
is impermissible unless he states in response to
all questions that he absolutely refuses to
consider the death penalty." Williams v. Maggio,
679 F.2d at 386 (emphasis in original). Our
reading of the transcript leaves us with the
firm belief that the trial judge carefully
examined Magee in an effort to ascertain whether
Magee would automatically vote against the death
penalty, and Magee's final answer to the court's
voir dire made it clear that he would not vote
for the death penalty.
If Willie's counsel wished to
rehabilitate Magee by demonstrating that he
could obey the law regardless of his opposition
to the death penalty, it was incumbent upon the
defense to establish on the record Magee's
willingness to do so after Magee had
unequivocally stated that he could not vote for
the death penalty regardless of the evidence
presented at the sentencing hearing. O'Bryan v.
Estelle, 714 F.2d at 376-77. Willie's counsel
failed to do this. Moreover, we note that
Willie's counsel challenged two other jurors on
Witherspoon grounds who were excused with Magee,
but did not object to the court's excusal of
Conduct by the prosecutor
during his rebuttal argument in Petitioner's
second sentencing proceeding was so egregious
that it rendered that proceeding fundamentally
unfair, in violation of Petitioner's rights
under the Eighth and Fourteenth Amendments to
the United States Constitution.
It is justifiable to use
force or violence or to kill in the defense of
another person when it is reasonably apparent
that the person attacked could have justifiably
used such means himself, and when it is
reasonably believed that such intervention is
necessary to protect the other person.
Finally, Willie argues that
the prosecutor improperly argued to the jury
that his office does not "ask for the death
penalty lightly." However, this contention was
not raised in the district court below and thus
will not be considered on appeal. See supra note
Petitioner's trial and
appellate counsel failed to render effective
assistance of counsel as guaranteed by the Sixth,
Eighth and Fourteenth Amendments to the United
States Constitution, during ... the second
sentencing proceeding, and on direct appeal.
Willie's conflict of interest
allegation, infra, was not raised in his habeas
petition. However, Willie testified in the
district court on that subject and both sides
argued the issue to the district court and this
court. The state conceded exhaustion at oral
Robert Lee Willie