Anguish in Georgia : Ruling Cast Shadow on Jury System

There never was much doubt who murdered six members of the Alday family near here one afternoon in May of 1973.

Authorities found the four killers on foot, running from a roadblock. Their fingerprints matched those in the Alday trailer and their guns matched bullets in the victim’s heads. They had Alday family jewelry in their pockets.

Sheriff Dan White said it was up to the court and jury to handle them, but “if I had my way about it, I would have me a large oven and I’d pre-cook them several days, just keep them alive and let them punish. And I don’t think that would satisfy me.”

Testifies Against Others

The defense lawyers asked for a change of venue. Superior Court Judge Walter Geer said no, we’ll try these cases right here in Donalsonville. Prospective jurors drawn from this rural southwestern Georgia county of 7,000 swore they could be impartial.

One defendant, Billy Isaacs, pleaded guilty to armed robbery and burglary, drew a 40-year sentence and testified against the others. The three who faced juries offered no defense at their separate trials, and two later confessed. In January, 1974, Carl Isaacs, Wayne Coleman and George Dungee were convicted of murder and sentenced to die in the electric chair.

Shocked and angry and bereaved, folks here took comfort in telling themselves that at least justice had been done.

Or so it seemed to them, for a good long time.

Last Dec. 9, twelve years after the murders, a three-judge panel of the U.S. 11th Circuit Court of Appeals ruled that justice had not been done at all.

Although the evidence of their guilt certainly was overwhelming, and their crimes horrible, the accused had been denied fair trials before impartial juries, the judges said. They should never have been tried in Seminole County, where almost everyone knew the victims and had been exposed to waves of word-of-mouth and news media reports about the crime.

To uphold these convictions, the judges said, “would mean an obviously guilty defendant would have no right to a fair trial before an impartial jury.” The killers would have to be tried over again some place else.

To many here, the judges’ reasons for calling the trials unfair were even more upsetting than the reversal.

The court focused not on a technicality, but on matters as fundamental as any to this country’s judicial system.

The judges essentially said they do not always trust the way in which jurors are selected in the courtrooms of this land. They declined to accept the answers given by prospective jurors during the voir dire screening process that preceded the three Alday murder trials.

Some Factors Intervene

The majority of the jurors had known the victims, the judges pointed out, and the Aldays are a respected family with roots in the community going back more than 100 years. Some jurors had attended the funeral or stopped by to pay respects. The special prosecutor hired by the Alday family was the nephew of the trial judge. A string of defense attorneys had balked at being appointed to defend the accused. Mutterings about a lynching had flared up here and there.

We have no direct evidence that establishes actual prejudice among jurors, the judges said, but given the overall situation in Seminole County, we presume there had to be prejudice. We presume this even though the jurors swore they were unbiased.

The decision has kicked up a firestorm of emotions here equal to what followed the murders themselves.

Hundreds of furious Georgians have phoned the federal court clerk in Atlanta to denounce the ruling. Three different groups are circulating tens of thousands of petitions seeking the appeals judges’ impeachment. Local newspaper editors, with rare exception, have thundered in rage. The state attorney general, Michael Bowers, has appealed to the U.S. Supreme Court, after the full 12-member 11th Circuit on Jan. 30 denied his request to rehear the case en banc.

“Not a fair trial?” said Bo McCleod, editor of the local Donalsonville News. “But they’re guilty. They confessed. If they’re guilty and are found guilty, then it’s a fair trial. That’s the way it is in my book.”

“In effect, they say I lied under oath,” said Billy Grantham, a juror in the Coleman trial who since has become a practicing lawyer. “It’s sort of insulting. They’re trying to look into my brain. You have to assume a man who swears under oath is telling the truth. The whole system is based on that.”

‘Undermining the System’

“We look at this ruling and say, Oh God, what does this mean for so many other cases,” said Susan Boleyn, the assistant attorney general representing the state on appeal. “They are undermining the whole system of jurisprudence.”

Others argue that just the opposite is true. In this region, though, their numbers are few and their voices low just now.

“It is perfectly possible that a trial could be accurate in its verdict and still be unfair,” said Donald E. Wilkes Jr., a University of Georgia law professor who helped in the appeals for a time. “You can’t just say we would have gotten the same result if we had stayed within the Constitution. You just can’t go down that road.”

Millard Farmer, the Atlanta defense attorney who won the reversal, believes “the very thing that people think is being maligned is what’s being protected. I think the sanctity of the jury is what’s at stake here. It’s not that jurors lie. They’re just not in touch with the reality of how they’ll behave.”

In this troubled fashion, an understandably anguished community filled with a deep sense of right and wrong has come into conflict with a group of lawyers and judges defending what they consider the highest principles of justice.

It is a wrenching conflict in which opposing sides cannot easily understand each other’s viewpoint.

Although younger and more affluent newcomers have taken to settling around nearby Lake Seminole in recent years, most of the residents here can still proudly say they were born and raised in the region.

Warm Type of People

There are not many more than 2,000 households in the whole county. Greetings and conversations are traded from table to table by the families eating fried catfish and hush puppies at roadside cafes on Route 27.

Folks here resent the suggestion that they are backwoods rednecks, a suggestion they sense in the court’s ruling and the national journalists’ questions. The resentment can be understood. People here are more likely to be found with a Bible or fishing pole in their hands than a rifle or length of rope.

“If Seminole County had not been such a good Christian community, those defendants would never have made it to trial,” said Helen Dunlar, the front desk clerk at a local motel.

Carl Isaacs, then 19, his half-brother Coleman, 26, and Dungee, 36, were on the run when they drove into Seminole County in May, 1973, escapees from a minimum-security prison in Towson, Md. They had picked up Carl’s younger brother, Billy, then 15, along the way. Their police records were filled with assorted burglary, breaking-and-entering and larceny charges.

They needed money for gasoline. The Alday trailer sat isolated out in the peanut and cotton fields where the family worked. The back door was unlocked.

It looked like an easy burglary, but then the Aldays starting coming home, singly and in pairs.

Ned Alday, 62, and his son Jerry, 35, were taken to separate bedrooms and shot in the head several times.

Another son, Jimmy, stopping by later, was forced to lie on the living room couch, where he was shot through the head.

Jerry’s wife, Mary Alday, 25, arriving home from her job at the county welfare office, was held at gunpoint in the bathroom.

More Are Shot to Death

Ned’s brother Aubrey, 58, and another son, Chester, 32, walking in moments later, were forced to lie on the beds beside their dead relatives, where they too were shot through the head.

At least two of the killers then raped Mary Alday on the kitchen floor, drove her tied and blindfolded to a wooded area six miles away, raped her again, beat and mutilated her, then shot her in the base of the skull.

When Sheriff White reached the scene at 2:30 a.m. the next morning, the first thing he saw was a beer can on the ground near the trailer. Thank God, he thought. Evidence. The Aldays don’t drink. You got to know your people.

Days later, authorities found a car abandoned just short of a West Virginia roadblock. The killers were tracked down as they traveled on foot through the nearby mountains.

The then-governor of Georgia, Jimmy Carter, called the crime the most heinous murder spree in the history of the state.

A week after the capture, a few townsfolk came to Bud Alday, Ned’s only surviving son, and told him they would take care of these boys if he gave the word.

Reporters covering the story also heard such talk.

Bill Cotterell, then a UPI reporter from Tallahassee, Fla., later testified at a hearing that he heard frequent expressions along the lines of “Isn’t it too bad that when they get these guys and when they’re convicted it’s going to take forever for justice to be done, and wouldn’t it be better if we could just do it on the spot.”

Yet there were also some voices of more tempered reason heard in the community.

Asked for Calm

Bud Alday, in fact, told his neighbors not to do anything rash. “I talked myself blue in the face,” he later told a reporter. “Society, the courts had to be given a chance.”

News about the case filled the pages of McCleod’s paper and others in the region. A review of the coverage suggests most stories were straightforward. Not all of what was reported, however, would be admissible at the trials.

The defendants were regularly referred to as escaped convicts. Repeated articles reported that Coleman had confessed to an earlier killing in Pennsylvania.

Journalists tracked down the Isaacs’ mother, who was quoted as saying: “They’re old enough to know right from wrong and deserve what they get. They never had any respect for me or those people in Georgia and how can they expect any from us.”

More than one defense attorney balked in public at being appointed by the court to represent the killers.

Harold Lambert, who defended Coleman at trial, when he was appointed said: “This is the worst thing that’s ever happened to me professionally. There’s just no way I can get out of it.”

J. Willis Conger said: “I’d like very much to be relieved. I don’t know of any lawyer in Georgia who would want that case. I don’t know of anybody who would want it. I feel the feeling in Seminole County and this part of Georgia is such that I don’t want it.”

The Alday family, meanwhile, decided to hire a special prosecutor to augment the district attorney’s efforts, something that is allowed under Georgia law. They selected Peter Zack Geer, a tall, powerfully built former Georgia lieutenant governor with a deep, resonant voice and a swept-back shock of straw-colored hair.

He was a well known figure in this region, a fellow from southern Georgia who had made it in state politics. As it happens, he also was the nephew of the trial judge, Walter Geer, now deceased.

Procedures Were Routine

The motions for change of venue, and the voir dire of prospective jurors, were not matters that drew uncommon attention in the days preceding the trials. Yet fundamental issues were at stake.

By focusing on these procedures in their decision, the 11th Circuit panel has touched a raw nerve in the legal system, one that most lawyers and jurists prefer to leave alone.

The legal system often relies on what is finally a rudimentary method to screen out biased jurors and those influenced by prejudicial publicity.

Judges and lawyers during voir dire ask prospective jurors if they can set aside what they know about the case and render a fair and impartial verdict. If they answer yes under oath, they often are taken at their word.

Yet many judges, legal commentators and social scientists believe this is a dubious method. They suggest that judging what is inside a prospective juror’s mind is finally a matter of intuition bordering on speculation. It is not that prospective jurors intentionally lie, they say. They are just unknowingly conditioned toward certain responses, driven by a desire to appear fair and to be selected.

The American Bar Assn. Standards for Criminal Justice lists three reasons for the legal and academic communities’ guarded evaluation of voir dire:

--”Inadequate understanding of the way pretrial publicity influences the thought processes of prospective jurors.”

--”The tendency among a significant number of prospective jurors to underplay the importance of exposure to prejudicial publicity and to exaggerate their ability to be impartial.”

--”Persistent concern about the ability of attorneys and trial judges to discern bias, particularly at the subconscious level, even when the prospective juror is being completely candid.”

The ABA standards, which derive from a special committee report published in 1968, say that a change of venue is the more effective way to assure an unbiased jury. The ABA emphasizes that changes of venue should turn on the probability of prejudice, not a showing of actual prejudice.

Quality of Testimony Doubted

To determine this probability, the ABA standards say, judges need not extensively consider the testimony of persons in the community, for such testimony “is likely to be self-serving and no more reliable” than the court’s own evaluation.

Most judges, however, resist granting motions for change of venue. Even an extensive voir dire is more manageable and less costly.

“Courts have shied away from these issues,” said Craig Haney, a psychologist and lawyer who teaches at the University of California at Santa Cruz and often testifies as an expert during change of venue hearings. “The social scientists haven’t helped either. The fact is, asking a juror whether he can set aside what he knows and feels and be impartial is a charade, a legal fiction. I don’t know if the juror can do that, but neither does the judge. Or the juror himself.”

No one now can say for sure why the late Judge Geer denied motions for a change of venue. Grantham thinks “he just wanted to show that the people here could handle something like this fairly.”

So the lawyers set out to pick 36 jurors for the three trials. All of the prospective jurors sat in the courtroom listening as a dozen at a time were questioned.

A look at the voir dire record in the Dungee trial provides an example of how this was done.

Five basic questions were presented by the prosecutors not to individual citizens, but to 12 prospective jurors as a group.

Jurors in the group were asked to stand if they were related to those involved in the case, or had formed any opinion or felt prejudice about the case, or if they were conscientiously opposed to capital punishment.

Then each prospective juror was questioned separately, for periods ranging from five to 20 minutes.

One such session, more or less typical, involved Mrs. W.V. Harrington.

Do you understand that the burden is on the state to prove guilt? asked defense attorney Lowery S. Stone, who is now a local Superior Court judge.

“Yes sir,” she said.

Do you know the Alday family?

“I know some of them.”

Did you know any of the deceased?

“I knew Ned Alday.”

Do you know of the Isaacs verdict and sentence? (Isaacs’ trial had preceded Dungee’s).

“Why, sure.”

Do you know Dungee is accused with Isaacs and others in this matter?

“Yes sir.”

If the state should fail to prove the guilt of Dungee beyond a reasonable doubt, would you find a verdict of not guilty?

“Yeah.”

With that, Harrington was sworn in as a juror.

The trials lasted only days, as Billy Isaacs repeated a horrifyingly detailed account of the murders before each jury. Bobby Nichols, the Superior Court clerk, listened each time and thought it the most morbid thing he ever had heard.

A confession of sorts by Coleman was introduced at his trial. More chilling were confessions Carl Isaacs offered to a television documentary team and to Albany Herald reporter Charles Postell some time later.

“I don’t feel bad,” he said. “The only thing the Aldays ever did that stood out was getting killed by me. . . . I was in hysterics (during the shootings). I was just caught up in it and getting my kicks. I don’t blame the Aldays if they want revenge. I’d feel the same way. But then again, I’d like to get out and kill more of them. They represent the type of society I don’t like. . . .”

It is fair to say these were not popular cases to pursue on appeal.

One reason law professor Wilkes said he eventually withdrew was the public pressure brought to bear against his employer, the University of Georgia.

Several other lawyers participated in the lengthy process, but in the forefront stood Farmer and his Team Defense Project, a foundation-funded group that represents indigent defendants in capital punishment cases.

Not Good Public Relations

Farmer knew going in that this was not an opportunity to improve his public relations. He thought these murders were as awful as anything he had ever dealt with. But he also felt that a system of justice that protects everyone can never be allowed to break down.

Although the Alday cases would eventually highlight fundamental legal principles, that was not how Farmer saw the matter. He could not recall another case in the past 50 years that was tried under similar conditions.

He would simply lay out the facts and not advance fancy legal philosophies, he reasoned.

“The judge lived down there, had to run for office. He didn’t have the strength to do what was right--change the venue,” Farmer said recently. “That’s what it boils down to. If the state at any point just stopped and said, let’s go try this in Macon, this would be over. But they didn’t.”

The defense lawyers harbored no notions that they could have reached anything other than a guilty verdict elsewhere. They were less willing to concede the death sentences, but even that was besides the point. Due process was the point.

The first judges the defense attorneys turned to were not impressed with their arguments.

The Georgia Supreme Court in 1976 upheld the convictions and sentences. The state high court was perfectly satisfied to rely upon the voir dire.

The court noted that the voir dire record “establishes beyond doubt that the jurors selected stated that nothing they had seen, heard or read had caused them to form an opinion for or against the appellant and that they had no fixed opinion as to the appellants’ guilt or innocence.”

The judges also said, essentially, that even if the trial should have been held elsewhere, this was a harmless error, for given the evidence, the result would have been the same. “No other verdict could have reasonably been returned by a jury regardless of the locale of the trial,” the court ruled.

Appeals Denied Repeatedly

In the following years, the state supreme court denied another appeal, the U.S. Supreme Court twice declined to accept the case, and U.S. District Judge Robert Elliott, sitting in Columbus, Ga., rejected a petition for federal habeas corpus relief.

The turning point came when the 11th Circuit in June of 1983 returned the case to Elliott, saying he had to hold an evidentiary hearing on the issue of whether or not a change of venue should have been granted because of prejudicial pretrial publicity.

This allowed the defense attorneys to subpoena and question witnesses.

When a representative from Farmer’s office showed up at Dan White’s doorstep, the retired sheriff glowered. Tall, broad-chested, and garrulous, a straw hat covering his balding head, White as usual did not hesitate to speak his mind.

“If you want me to answer your questions, you have to answer mine first,” he said, slamming three Bibles onto his kitchen table. “Tell the truth. If you can put your hand on any one of these books and show me where God is against capital punishment, I’ll eat it.”

Other witnesses proved more helpful to Farmer’s cause. During a four-day hearing in November of 1984, it emerged that one juror at the Coleman trial was living then with Marilyn Alday, a relative of the victims, and has since married her.

Nothing that unfolded during the hearing, however, was quite as revealing as the testimony of Thelma Harrington, now 77, the juror in the Dungee case who during her pretrial voir dire had been asked six cursory questions.

She knew of the Aldays as “good honest Christian country people,” she said. News of the murders had spread “like fire in broom sage.”

She said she had known the Geers, prosecutor and judge, for a long time. She thought perhaps they were brothers, but was unsure.

Did people talk much about the case around town? asked Steve Bright, a lawyer working with Farmer.

“My Lord. They’d have had to have lockjaw not to because that was the topic around a little town like Donalsonville and everybody was so excited and upset.”

Did people indicate what they thought ought to be done about it?

“Might right they did.”

What did they say?

“Fry ‘em. Electrocute ‘em.”

What else?

“That’s about all I heard, and that’s what should be done for ‘em.”

That was the community sentiment, fry ‘em or electrocute ‘em?

“Everybody felt that, yes.”

Assistant Atty. Gen. Boleyn, on cross-examination, tried vainly to limit the damage. Didn’t Mrs. Harrington mean the feeling was fry them “only if they were the ones that had committed the crimes. . . . They should not be punished if they had not done the crime, should they?”

“Well, everybody knew they did it though,” Harrington said.

Judge Elliott, unswayed, last March for a second time denied the habeas corpus petition. Farmer, however, had used the evidentiary hearing not to change Elliott’s mind, but to create a record to present to the 11th Circuit. This he did late last year.

One three-judge federal appeals panel heard the arguments in Coleman’s case, while a second panel considered the other two together. Two judges sat on both panels, however, and both, as it happens, were appointed to the appellate bench by a Georgian--Jimmy Carter.

Of the two, Frank Johnson Jr., is the best known nationally, for his path-breaking decisions forcing school desegregation while sitting as a U.S. district judge in Alabama. It was R. Lanier Anderson, however, who would write the panel’s opinion. Lawyers on both sides considered the former tax lawyer from Macon to be meticulous, thorough and thoughtful.

Unlike Georgia state supreme court justices, who must face the voters, the federal appeals judges are insulated through life appointments. So where the state judges have been criticized for bowing to political and emotional pressures in the Alday case, the federal judges have been charged with being abstract theorists out of touch with real life.

The appeals judges were, in fact, inclined to focus their attention on the legal issues. When Boleyn, the assistant attorney general, tried to recite the horrendous facts of the killings during an 11th Circuit oral hearing, one judge chastised her, saying they didn’t want to hear that.

Wisdom or Fault?

To some, this represents the wisdom of the federal appeals system, and to others, its most glaring fault.

The 11th Circuit issued its 133-page opinion last Dec. 9. Looking at the news coverage, the comments, and the conditions in Seminole County reminded the judges of a landmark 1962 U.S. Supreme Court case, Rideau vs. Louisiana.

There the high court had overturned a murder conviction because it “presumed” juror prejudice. It did so not because of anything said during voir dire but because the justices decided pretrial publicity had so saturated the community that selecting an impartial jury was made impossible.

Since then the concept of presumed prejudice had been invoked only rarely, but the 11th Circuit panel decided it applied to the Alday trials.

“Our review of the record in the instant case leads to the inescapable conclusion that (Coleman) was denied his right to a fair trial before an impartial jury,” the judges said. “Indeed, this case is a close case only because of the extremely high standard that must be met. If there were no constitutional right to a change of venue in the instant case, then one can conceive of virtually no case in which a change of venue would be a constitutional necessity.”

It does not matter that the defendants are obviously guilty, the judges said. They believed there was, in fact, “overwhelming evidence” of guilt. But that cannot affect the right to a change of venue.

The judges faced head-on the matter of the jurors and voir dire.

They did not like how the jurors had been questioned as a group, with others listening, and they did not think the jurors had been asked questions calculated to uncover prejudice. They brought up the example of Harrington, the elderly women juror whose testimony at a 1984 hearing had contrasted sharply with her voir dire answers.

That the jurors in Donalsonville had sworn they were impartial simply was “not sufficient to rebut the presumption of prejudice,” the court concluded.

Court Expresses Sympathy

In a footnote, the judges added a final thought: “No one familiar with the facts of this case and the overwhelming evidence of guilt could fail to have sympathy for the prolonged suffering of the families of these victims. The fatal error of trying this case in Seminole County was not their decision.”

The uproar the ruling spawned has yet to subside in this region. Most do not so much disagree with the legal issues as plain not see them.

McCleod, thin as a cornstalk, weathered in face and hand, normally mild of manner, never had dealt with anything like this since he first started working at the Donalsonville News as a youth in the 1940s, folding editions in exchange for a free pass to the local movie house.

Now as editor, in between selling classified ads in his one-room storefront office, he writes all the news copy, and he feels particularly offended by the court’s suggestion that his reporting unfairly skewed the trials. He asks himself what he could have done differently. That the accused were escaped prisoners was as much a part of the story as if they had been housewives, the way he saw it.

McCleod also has little patience for outside journalists come to town looking for signs of lynch mobs. They and the court were insulting the community. He felt squeezed in the days after the ruling, reluctant to express anger because someone would use that to prove the county truly was prejudiced. Yet he was not inclined to keep quiet either. He finally poured it all into two lengthy, angry front-page editorials.

“It’s a shame they don’t have an innocent person to put all this effort on,” he said one recent morning, pacing through his office in agitation. “Talk of an overworked judiciary. That’s because they spent so many years on this. What does it matter if our county has 10 million or 10,000? The courtroom’s the same size. Hitler was a fool to kill himself. He should have gone to the 11th Circuit.”

Prosecutor Lets Loose

Geer, then the special prosecutor, now a private attorney in Albany, Ga., at first held his tongue as well, but then let loose: The legal issues were just a smoke screen for judges who were flatly opposed to capital punishment. The crime was reported heavily all over the state, so there’s not a county in Georgia where you could get a better jury. How can the judges play God and presume what was in the jurors’ minds?

“Every judge that voted in favor of the new trials ought to be made to go down to Spring Creek Church, lay down on those six graves and apologize for what they have done,” he thundered.

Curtis Strickland, a soft-spoken sandblasting contractor who travels through three states working with farmers, was born and raised in this region but had never been active in civic affairs.

One night, troubled beyond words by the court ruling, he sat down with his wife and daughter and started reading the Constitution. He looked at the Preamble, and the First Amendment, and the Sixth Amendment, repeating the phrases over and over.

In the Sixth Amendment, he read: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.”

Well, they got all of that, Strickland reasoned. The trial was right in the district where the crime was committed.

These were the very words that had guided the appeals judges to their unpopular conclusion, words they felt duty bound to uphold. But they triggered in Strickland quite a different thought. It occured to him that those appeals judges had twisted the words. They didn’t care about the public and their rights because they didn’t have to answer to them. Maybe folks here should not have been so willing just to sit back and be quiet and let the law do the work.

Petition Gains Support

At first he prepared a solitary statement, something to voice his own opinion. Then others wanted to sign it.

Soon, Strickland found himself the organizer of a region-wide petition drive urging that the 11th Circuit panel be impeached for failing to uphold the Constitution.

The petitions can be found on front counters everywhere around here--retail stores, restaurants, even motels. As Strickland travels on business from town to town, people grab as many copies as he has with him. An estimated 100,000 signatures so far have been forwarded to the local congressman, Democrat Charles Hatcher.

Few here at present can see the unhappy irony in a conflict where all sides yearn for justice, but disagree so mightily over what it is.

Emotions run too deep. The triggering issues involving voir dire and change of venue at some point became lost in an overwhelming wave of discontent at the judicial system in general.

May Leave Legacy

This condition was highlighted by such moments as an interview in which Georgia Atty. Gen. Michael Bowers denounced the court ruling, but then, asked whether venue should have been changed in the Alday trials, said: “I won’t comment on that.”

Yet the lawyers and judges know there will be other trials and other decisions to face involving the same issues. They know rulings in one case affect many others. So they know the 11th Circuit’s judgment may leave another legacy besides baffled and unresolved anguish in a small rural county.

A brief news item appearing in local Georgia papers in early January went largely unnoticed amidst the general tumult. In Gainesville, north of Atlanta, a Hall County Superior Court judge had granted a change of venue in the trial of a man accused of murdering a local woman more than four years ago.

In light of the 11th Circuit ruling in the Alday case, the local district attorney explained, the judge “had no other choice.”