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 him.
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
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.
Willie was 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
"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
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 - The
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
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 is wrong."
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
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
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
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
"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
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 to death."
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
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
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
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
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 chair.
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 in Monopoly.
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.
Forgiving Her Rapists
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
"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 crime spree.
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
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
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 sipping milkshakes.
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
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
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
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 hanging.
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
"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
"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
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 against Morris.
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
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 permission first."
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
"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
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
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
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 over him."
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, Petitioner-Appellant,
Ross Maggio, Jr., Warden, Louisiana State Penitentiary,
Docket number: 84-3219
Federal Circuits, 5th Cir.
September 7, 1984
Appeal from the United States District Court for
the Eastern District of Louisiana.
Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.
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 BACKGROUND.
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
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
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
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 to appeal.
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 Army.
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 violated.
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 so.
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
We consider each of Willie's contentions in
III. GUILT PHASE OF THE TRIAL.
A. Jurors at the Vaccaro Voir Dire.
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 principals.
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 like that?
Id. at 176. After asking the veniremen a few
more questions, Vaccaro's attorney explained:
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 Hathaway.
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
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 was violated.
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. denied,
393 U.S. 1120 , 89 S.Ct. 996, 22 L.Ed.2d 124 (1969).
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
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
During the Vaccaro voir dire, however, neither
the prosecutor nor counsel for the defense disclosed any facts or
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 against them.
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 trial.
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
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 Peremptory
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
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
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), cert. denied,
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 Violation.
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 (5th Cir.1984).
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 being present.
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 him.
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 transcribed.
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 unrelated crimes.
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 enforcement officials.
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
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 Jury.
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. denied,
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),
440 U.S. 976 , 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979),
and need not dwell on it further.
IV. PENALTY PHASE OF THE TRIAL.
A brief review of the evidence adduced at
Willie's second penalty hearing will serve to place his
contentions in context.
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
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 303 (1981).
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. Hoffman,
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 142 (1971).
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
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
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
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.
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),
455 U.S. 1003 , 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982).
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 imprisonment?
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
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 am undecided.
Id. at 50-51.
The court then asked Magee and another
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, supra.
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 Willie.
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.
Unquestionably, the 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.
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 857 (1980).
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. denied,
400 U.S. 905 , 91 S.Ct. 145, 27 L.Ed.2d 142 (1970).
Louisiana employs a bifurcated trial procedure
that confers upon the jury the responsibility of imposing the
death penalty. The jury considers relevant statutory aggravating
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
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 1411 (1983).
D. Ineffective Assistance of Counsel.
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 333 (1980).
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 Court held:
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. at 2068.
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.
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
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 were
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 Supp.1983).
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 863 (1981).
Moreover, we do not believe that the prosecutor's erroneous
argument had any material effect on the jury's recommendation. See
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 proceeding.
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 incidents.
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
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
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 2071.
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 proceeding.
E. Louisiana's 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
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 Cir.1974).
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.
Robert Lee Willie