Eurus Kelly Waters v. Walter Zant, Warden Georgia Diagnostic and Classification Center

At 4:33 P.M. on Friday, April 25, 1980, EMT's (Emergency Medical Technicians) with the Jekyll Island Fire Department received a call reporting a shooting at a Phillips 66 station on Jekyll Island. When they arrived at the station, Kathryn Culpepper was sitting in a red AMC Gremlin automobile. She had a gunshot entry wound in her chest and an exit wound in the area of her left kidney. A pair of handcuffs was fastened to her left wrist. . . .

A state trooper who had also responded to the call asked Ms. Culpepper what had happened. She told him that while she and a girlfriend had been fishing, a white male had pulled a gun on them, made them march into the woods, handcuffed them, sexually assaulted her, and then shot both of them. She thought the other woman was dead.

The body of the other woman, Anita Paseur, was found approximately two miles south of the Phillips 66 station in what is known as the New Marina area of Jekyll Island. She was lying on her back, clothed from the waist up, with her bathing suit bottom and shorts pulled down to her ankles. She had a bullet wound in the upper left part of her chest. A later autopsy showed that Ms. Paseur's death resulted from the gunshot wound. A .38 caliber bullet was removed from her during the autopsy. A [Georgia Bureau of Investigation ("GBI") agent,] using a metal detector at the crime scene, found another .38 caliber bullet under some leaves about 10 feet from where Ms. Paseur had been found.

GBI agent Scott Curley talked to Ms. Culpepper in the hospital. He obtained a description of the killer, his car, his gun and holster, and Ms. Culpepper's missing pocketbook. Agent Curley then posted a lookout for a white male in his late thirties, of average height, with light brown hair and light blue eyes, having a country accent, and wearing a light blue shirt, dark blue pants and black shoes; for an older model white, 4-door Pontiac or Buick automobile with a Georgia tag; for a .38 or .357 police-type revolver; for aPage 1476black leather holster; and for a burgundy colored, John Romain shoulder bag containing personal items belonging to Kathryn Culpepper.

Kathryn Culpepper died April 30. The cause of her death was excessive fluid around the heart and the pericardium, caused by the trauma directly beneath her heart, in the liver and pancreas, which in turn was caused by the bullet wound.

Eurus Kelly Waters was a cab driver in Waycross. He worked half a day Wednesday, April 23 and Thursday, April 24. He did not work at all on Friday.

Dorothy Googe was lying by herself on the beach at Jekyll Island early Friday afternoon. A fully dressed man, wearing long, dark pants, a blue shirt, and black shoes, walked by her toward the picnic area. . . . Ms. Googe later identified Waters, by means of a photographic lineup, as the man on the beach.

Between 4:30 and 5:00 P.M. Friday, Brantley County Deputy Sheriff Jerry Rowell was travelling west on Highway 84. As he came over the top of the Satilla River Bridge, he had to slow down to 20 miles per hour behind a white 4-door 1974 Chevrolet. After following the car for a while, Deputy Rowell, suspecting the driver was intoxicated, stopped the car. When the driver opened his door, Rowell saw a Motorola policetype radio on the transmission hump and asked the driver if he worked for a timber company. The driver told him no, he was a part-time cab driver in Waycross. Deputy Rowell decided the driver was not intoxicated and let him proceed. He later identified Waters, by means of a photographic lineup, as the driver of the car.

On the afternoon of Thursday, May 1, 1980, Ms. Culpepper's burgundy colored, John Romain shoulder bag, containing various credit cards but no cash, was found on the west bank of the Satilla River just under the Satilla River Bridge. The Satilla River Bridge is 33.2 miles from the New Marina area of Jekyll Island.

Waters told his wife, Helen, when he got home the evening of the 25th that he was late because he had got stuck in the swamp. He went back to work Saturday. Next Tuesday, April 29, Helen Waters read an article in the paper about the murders on Jekyll Island. The article gave a description of the suspect. She turned to her husband and said, "Kelly, this murder, these things that's happened on Jekyll Island, this description fits you." Waters looked at her for a few seconds and then said, "call Judy." When Judy Petty, Waters' sister, arrived, Waters stated crying and said, "Sister, I think I may have killed some people. If I have done this thing, I want to die." He continued crying for most of the rest of the evening. Ms. Waters got her husband's gun, which was fully loaded, out of the bedroom dresser and hid it under the sink. . . . After some discussion, the family decided not to call the police at that time; Ms. Petty would try to get in touch with a friend of hers, Ed Dixon, a Glynn County policeman, and ask him what to do.

Waters and his wife spent Tuesday night with Judy Petty in Brunswick. The next morning, the three of them went to the mental health clinic in Way-cross that had been treating Waters since 1978. He was given a shot of Prolixin Decanoate, a long term major tranquilizer.

Ms. Petty finally reached Ed Dixon Saturday, May 3. Sunday afternoon, Waters' pistol was given to Dixon, who turned it over to GBI agent Curley. Monday afternoon Agent Curley and Detective Wofford went to the Waters' residence in Waycross and asked Waters to accompany them to the State Patrol station in Waycross, two or three miles from Waters' house. There, after advising Waters of his rights, Agent Curley interrogated him. Waters said he couldn't really remember what he had done Friday afternoon but thought he may have got stuck in a swamp. He remembered that he had been wearing a light blue shirt, dark blue trousers and black boots. He admitted owning the .38Page 1477caliber pistol that had been given to Agent Curley. He admitted owning a black leather holster and a pair of handcuffs, but he couldn't remember where the cuffs were. He agreed to go back to the house to allow Agent Curley to look at the clothes, the holster and the ammunition for the gun.

They went back to Waters' house. Helen Waters got the ammunition and the holster and gave them to Agent Curley. Waters retrieved a light blue shirt and dark blue pants that he identified as being the ones worn by him on April 25th. At 4:15 P.M., Monday, May 5, 1980, Waters was placed under arrest.²

Q: And is it fair to say that by the time you got to the trial you felt that you were trying the case to save this man's life rather than to get a not guilty verdict?

Q: Is it fair to say that you didn't expect to succeed on an insanity defense?

A: I expected — as a lawyer, as a realistic lawyer, I hoped that the matter of his competence would result in a verdict of a life sentence and not of a death sentence.⁴

Q: If we could move now to the sentencing phase of the trial, if you could describe to the Court any effort to prepare for the sentencing phase.

A: Well, we really didn't have any special preparation for that phase. We — knowing the facts of the case it appeared that Mr. Waters probably would be found guilty based upon his testimony and other evidence. So we considered the totality of the trial. We didn't think well, let's talk about the guilt/innocence phase versus let's talk about the penalty phase. We viewed it as a whole and approached the trial from that standpoint. And we felt that any witnesses that we put up during the guilt/innocence phase, their testimony would be essentially the same in that phase as it would be in the penalty phase. So if we got the testimony in or attempted or tried to in the guilt/innocence, we felt it just be redundant to call those same, very same, witnesses in the penalty case. So we did not call any witnesses in the penalty phase.⁵

A [by Dr. Bosch]: . . . As far as the question of his condition at the time of the alleged offense, I dealt with that many times in trying to figure out what was wrong, and I could not put it together, the crime and the mental illness. You know, you're talking about insanity. You're talking about right from wrong and from delusional compulsions, but when we do this kind of work, when we see these people and talk to them and see the crime that they committed, the question that we ask in ourselves, is this connected with this illness, is this a result of this illness.

A: And my — And I couldn't find any connection. That's the reason that I stated to the District Attorney that it is my opinion that at the time of the offense, at the time of the alleged murder that he knew what he was doing.

Q: Well, let me ask you this: How do you reconstruct the feeling of the emotion that Kelly Waters felt at the time the crime was committed? How do you, in your mind, reconstruct that?

A: I would like to answer the question, but not with the jury present.

Q: Well, we — You will have to . . . defer to our wishes in the matter. I asked you to answer it.

A: . . . To answer the question, I would have to get into the, what I consider as, I don't know, it's confidential between me and your client, and the Defendant. And I would have to say something that, what he said to me and I don't know if I should say that in front of the ladies and gentlemen or not. I have some doubt about it.

A: Well, You Honor, do I have to answer the question? Do I have the right to refuse to answer his questions? . . . Your Honor, this is my point: I do have — I can answer his question. I do have the answer. There's no question about it. I can answer his question and hope that he'd be satisfied, but based on my confidential relationship between me and Mr. Waters, I prefer not to answer that question. But I do have the answer. If you ask me to give it to him, I will do it.

THE COURT: All right. All right. He has waived his privilege, Dr. Bosch.

A: Well, Mr. Davis, this is the answer to your question, and I wrote it down.

A: It's not something that I'm saying to you today. Now, this is related to the alleged offense. He related to me that he went from Waycross to Brunswick, that he saw two women fishing in that area over there. That he saw the women were getting ready to leave, that he had a gun in his car, that he pulled the gunPage 1480on those women. And he has stated to me that the reason that he did it was because he wanted to have sex with them, but he could not have sex with them. And he said that he had oral sex with one of the women.

A: He said that he put the the handcuffs on both of them, and I believe on the left and right side of the other one, and then he said that after that — He said that he put the handcuffs on the ladies because they were trying to over power him. And then he shot the older lady, and then he shot the second one, the other one. And then he left, went back to Waycross. He said that he was stopped by a deputy or a state patrol on the road, who checked on him to see if he was drinking, and they let him go. And then later on he got back home. That's what he said to me about the alleged offense.

Q: Yes. Well, I don't object to your reading that. I'm quite happy to have it in the record, but my question didn't quite address that point. My question is: How do you reconstruct the emotional processes that lead to that act that you've just read about?

A: I mean, you — I believe that I got an idea what you're trying to, what you're looking for. You're trying to, asking me how I was able to give an opinion about that he was not . . .

Q: No, I'm not trying to work my way back to anything. I'm just saying, — Awhile ago, for example, you were describing the emotional processes that led to his attempted suicide.

Q: Now, I'm trying to ask you to give us your opinion of the emotional processes that led to the event you just read about.

A: Well, most likely, he was in a kind of stage, or emotional condition, more or less, like I saw him in the Liberty County Jail. Maybe he was a little bit tense or a little bit depressed. He had a few drinks on that date. And that he was, maybe like he was going to, when I talked to him, that he was able to relate, able to talk, that he understood my questions and . . .

A: Yeah, that's what I said. And I'm sure that his emotional state, whatever he worries about, being maybe a little bit apprehensive, a little bit nervous, a little bit depressed on that date, and because of all of this background that he had, maybe after the first lady, the oldest lady got shot, between that one and the second one, maybe he got a little more apprehensive or a little more fears about what was going on and more, you might say, tight, emotional state, between the shooting between the two ladies, and plus, I'm sure that after the whole incident that, the whole incident, maybe he got a little more tight, a little more upset. And I don't know if that takes care of your question.

Q: No, it doesn't. What I'm driving at is, what — Do you think that the whole episode was trying to do something for his own ego or some other reason?

A: My feeling is like I wrote, and I believe that, like I said before, he seemed to be honest with me when he answered my questions. And one of the — I believe the key to the whole thing is that he wanted to have sex. You know, when you drink — Alcohol, like I said, is a sedative. But, you know, alcohol relieves the sexual desire, but take away the performance. When people are drunk — When people drink, they want to have sex, but alcohol takes away the performance from them, and that was the case in this one, was a little bit of sexual impulse was released, but couldn't perform. And this is related to alcohol. But I believe the main reason, when he saw those two women, that he had some kind of sexual stimulus that he wanted to have sex with. And to me, that's what the key of the whole thing. And again, the episode when one of the women was trying to overpower him and — That's what he said. And again, I believe what he said.

Q: All right. I'll ask you if you had occasion to examine the Defendant in this case, Kelly Waters, in the past?

A: I saw him the first time the date that he was admitted to the Forensic Services Division in August the 21st, 1980.

Q: And then did you see him more than that one time?

A: I saw him on rounds, mostly once a week, and also, I saw him when he was at Stafford for competent, to decide he was competent to stand trial when he was released from the Binion building.

Q: And over what period of time did you see him once a week?

A: Four times in one round, and I got two or three interviews with him.

Q: During the course of those interviews, were you able to form a medical opinion as to his mental condition?

Q: Did you consult his records to find that he had been diagnosed as a paranoid type schizophrenic?

A: I got some information that he was diagnosed as a paranoid schizophrenic.

A: It's a neurosis characterized by the feelings of anxiety and . . .

A: That was my diagnosis. No, it was not my diagnosis. I was agree with the diagnosis, but the diagnosis was done by a psychiatrist the Binion Building, that he was assigned to a psychiatrist for mental evaluation. He made the diagnosis. And I, as the medical director of the Forensic Division, I need to check, I review all the diagnoses in the Forensic Service Division to see if they are correct. So we make another type of evaluation to see if we are agreed with the diagnoses offered by the psychiatrist before sending the people to the court.

A: I was agreed with the diagnosis of anxiety neurosis done in the Binion Building.

Q: Would you explain to the jury how an anxiety neurosis differs from a schizophrenic condition?

A: The anxiety neurosis, the people in anxiety, when the person feels anxious, there's not too much difference with the schizophrenia.

A: Not much difference because the people that feel anxious react different than normal people, exaggerate his actions, become violent at times. At timesPage 1482he feels depressed. It's mixed symptoms of different types of mental illnesses, but the person always is in good contact with reality.

Q [by the prosecutor]: Dr. DeLatorre, did I understand you to say that you found that Kelly Waters was in good contact with reality?

If I had been called as a mitigating witness on Mr. Waters' behalf I could have offered the following testimony. I believe that although Mr. Waters did have the capacity to distinguish right from wrong, he was a deeply troubled man. I know that different people offered different diagnosis in his case. At least one diagnosis held that Mr. Waters suffered from schizophrenia, a major psychiatric disorder. Whatever the correct specific diagnosis, however, the nature of Mr. Waters' illness was such that I believed it would have affected his conduct on Jekyll Island on the day of the murders. In my opinion, during that period Mr. Waters' thinking would have been characterized by paranoid illness. It would be consistent with what I know of his condition for him to have been hallucinating. Similarly, it would have been consistent with his condition for him to have been having difficulties in perceiving reality and for his judgment to have been impaired.

In my extensive study of Mr. Waters' record, and in my careful interviews of Mr. Waters, I discovered nothing which would lead me to believe that he was prone to direct violence against other people. It would be a fair characterization of his conduct on Jekyll Island (if indeed he did commit the murders) that it was an appreration response to a stressful situation. That response is not justified or excused by Mr. Waters' mental illness; it may well have been influenced by it.¹⁵

Mr. Waters' attorney never discussed with me the possibility of my testifying during the penalty phase of his trial. If I had been asked to testify at that time, I would have said that Mr. Waters was suffering from a serious mental disorder that is called schizophrenic disorder which should be considered a strong mitigating factor. Furthermore, during my evaluation sessions with Mr. Waters, hePage 1483was always real polite and cooperative. Also, it was my feeling that Mr. Waters' personality does not reflect him having a criminal type personality. It was therefore quite a surprise to me that he was facing two counts of murder.¹⁶

One example of this happened one night when Momma came home late. She had been visiting the neighbor's whose husband died. Daddy got home about five minutes after Momma did. When he saw that dinner wasn't ready he got mad. Then he started drinking. After Momma had finished cooking dinner and had put it up on the table Daddy went over and picked up the food off the table and heaved it out the back door. He then went into the bedroom where Kelly was. He loaded his automatic shotgun. I said to Momma, "Daddy's getting the gun!" Momma grabbed me and my sisters and we all ran out the back door and across the woods. Daddy was yelling after us, saying he was going to shoot all of us. He did shoot at us once as we were running. We spent the night at a neighbor's house.

Kelly was 14 years old when our mother died. . . . .¹⁷

My brother has had a problem since he was a child with trying to make people look up to him. It's like `spells' that come over him in which he would tell anything, true or not, to impress someone. During these times he would be argumentative if challenged on the truth of the issue and defend his words as though he believed them to be the absolute truth. We soon learned that it was useless to argue with him at these times, knowing that as soon as the `spell' passed, he would be back to his old self. He has never, so long as I have known him, ever struck out at anyone or tried to hurt anyone, even at times when it would have been understandable to do so.

Kelly shot himself shortly after our Daddy died and his first wife left him with their baby. He was very depressed. After he got well, and for the next few years, he believed he was unable to hold a job and through the Rehabilitation Program, we sent him to Augusta and to Milledgeville for evaluations. He went voluntarily. During these years he was frequently in one of his `spells'. . . .

Before I left Waycross in 1979, I knew [Kelly] was having trouble with the spells again. I saw Kelly the weekend before the shooting. . . . I know he was in one of his spells because his eyes were bright and glassy looking as they are during these times.¹⁸

Q: Mr. Waters, until the time of your arrest, you lived with your wife in Waycross?

Q: And you've now been in jail since early in May of 1980?

Q: I'll ask you, Mr. Waters, if during the course of your lifetime you have ever attempted to kill yourself?

A: The first time I attempted to take my life was a gunshot wound. The — I shot myself in the stomach with a .22 caliber rifle. On the second occasion, I taken some poisonous medicine which consisted of a bottle of rubbing alcohol and white linament.

Q: Now, your marriage to the present Mrs. Waters, Helen Waters, is your second marriage, is it not?

Q: Mr. Waters, you were formerly, were you not, a cab driver in Waycross?

Q: I'll ask you if you can tell us something about the events on and around the date of April the 25th, 1980, involving visits by you to Jekyll Island? For example, now, April the 25th, 1980, was on a Friday. Can you recall the Wednesday before that Friday going to Jekyll Island?

A: Yes, sir, I believe I went to Jekyll Island fishing that day.

Q: On that particular day, can you remember anything that happened?

Q: And how did you get it, were you fishing or lying on the beach, or just . . .

Q: And can you remember what happened after you left Jekyll that day?

A: The only thing that I remember, you know, that would be considered — I stopped by my sister's house and drank some tea.

A: Which the sister I'm talking about in question is Georgia Rainey.

Q: All right. Now, then, about the next day, which would have been a Thursday, was there anything unusual about that day that caused you to remember that day?

Q: Then on Friday, you remember, of course, that day, Friday?

Q: Yes. Would you state to the Court what happened? Start out at the beginning of the day and state what happened on that Friday.

A: Mr. Davis, the best of my recollection is that the first thing that I remember as to happening on Friday was taking my wife to work.

Q: All right. And when you took her to work, what did you do?

Q: Can you tell us what time of day it was when you got to Jekyll that day?

A: Well, I can't be sure, but I would say sometime in the late morning.

Q: Now, you've, of course, sat through this trial, as you're entitled to do under the law. You heard a lady take the stand by the name of Mrs. Googe from Darien.

A: Yes, I believe I did talk to her on the beach that day.

Q: You heard what she had to say about the conversation that was had between you and her. Was that . . .

Q: . . . in accordance with the way you remember it?

Q: And then following that, can you tell us what happened next?

A: The only thing that — The next thing that comes to my mind, Mr. Davis, is that I was drinking, that I was drinking some alcohol, some whiskey. And in regard to the rest of the day, the only thing that I remember is just what is in the statement that I made to Mr. Curley.

Q: Well, now, we're going to have to go through that. But first I'll ask you a question or two. What were you drinking on that occasion?

Q: Well, what — All right. You don't know. Well, what size bottle was it in?

Q: Did you wear it in your pocket when you weren't drinking out of it, that bottle?

Q: In your car. Can you remember before the occasion where you encountered the two women who were killed, before that? Can you remember — Did you buy a chaser or go to a store or anything along that line at all?

A: Yes, sir, I believe that I bought some Gatorade, and some coffee, and also cigarettes, at the little Zippy Market, or whatever the name of it is, on Jekyll Island.

A: In the shopping plaza as you go into Jekyll, go onto the island.

Q: Do you know the area that people call the New Marina over there?

Q: Did you go later after you'd been to this Zippy Mart, or Zippy Market, did you go over to the area of the New Marina?

Q: And when you got to that — What were you driving?

Q: When you got over there, what did you see, if anything?

A: Nothing stands out in particularly. Now, there was a sailboat there in the river. This marina consists of a large lagoon that makes off from the river. There was a sailboat there and there were some people — I believe it was one black man and one black woman fishing.

Q: All right. Then after you observed that, what next happened?

A: The next thing that stands out to me that I have been able to recall, been able to recollect, was I went around to the far side of the New Marina, which it consists of a dirt, a narrow, dirt road, and there I saw this red car. Now, as to the make of the car, I have no idea.

A: But there were two ladies coming up the — There is a steep incline there going down to the water. And I observed two ladies coming up that incline.

Q: Now, when you say coming up, would that have been from the water to their car, is that what you're . . .

Q: So you were still driving when you saw them coming up?

A: And I got out of the car, my car, and pulled my gun on them.

A: My gun was in my hip pocket, my right hip pocket.

A: No, sir, generally they were on the signal light reflector knob is where they generally were.

Q: All right. You say — Now, you've already said that you pulled your gun on the ladies. Now, . . .

Q: . . . at that time, were you in your car or out of the car?

A: I was out of their car, out of my car and at the rear of their car.

A: At that time, I guess the cuffs were in my pocket.

Q: All right. And what, if anything, was said when you got there and that happened? After that happened, what, if anything, was said?

A: I just — I told them that they were going to go with me. And I marched them across some, something like a hundred yards, to a wooded area where it's real brushy. And I guess my intentions was sex; I don't know. But anyway, Mrs. Culpepper, I believe her name was, put the cuffs on her wrist and Miss Paseur's wrist.

A: I had — I made Mrs. Culpepper undress from the waist down, and I attempted to have oral sex with her.

Q: At that particular time, were they standing, sitting or lying down?

Q: Were they side by side or in some other position?

Q: At any time during that time when you, as you stated you attempted to have oral sex, did you ever unzip your trousers?

Q: Now, when you say you attempted to have oral sex, it's necessary to, for this jury to understand exactly what you mean. Now, when you say that, do you, are you telling the jury that it was your mouth?

Q: Are you saying that it was her private, female part . . .

Q: And during that time, what was Miss Paseur, the younger of the two ladies doing?

A: Well, she was laying side of Mrs. Culpepper, but she was very hysterical and she was screaming at Mrs. Culpepper.

A: The only thing that stands out is she accused Mrs. Culpepper of enjoying what I was doing to her.

A: Then after it was over with, they both got up and attempted to dress, Mrs. Culpepper did, as she had on, I believe it was a pair of shorts. I can't be sure, but I think that's what it was. And as she pulled her shorts up and got them buckled, or got them zipped, or however she fastened them, after she did this, her and Miss Paseur both at the same time made a lunge, and I don't know, I just — I had the gun on them and I pulled the trigger. And I believe that I struck Mrs. Culpepper, and then as she fell back, I shot Miss Paseur.

Q: Well, what length of time was there between the first shot and the second shot?

Q: At the time that you fired the first shot, had Mrs. Culpepper gotten her clothes back on or not?

A: I then left them both in the, on the ground and went back to my car.

Q: Did you do anything, one way or the other, with respect to the clothing of Miss Paseur?

A: Yes, sir, I returned to my car and I passed by their car, or her car, whichever one it belonged to, and I take her pocketbook off the front seat of the car.

A: I threw the pocketbook out somewhere around the Satilla River Bridge.

Q: Now, describe how you went at that. Did you throw it out over the passenger's seat, or on the same side you were, out of the window on your side?

A: I pulled over to the wrong side of the road from which I should have been traveling and tossed it out the window.

Q: The window you tossed it out of, was it the driver's side window?

Q: And did it go over the bannister of the bridge there?

A: I proceeded on towards Nahunta, which just a few seconds, just a few minutes after this, I was stopped by a Brantley County Deputy Sheriff.

Q: You heard him testify. Was that the same man who stopped you?

Q: Meanwhile, had you looked in the pocketbook to see whether there was money in it or not?

Q: Now, you've heard the testimony about what happened following that, and has that testimony been in accordance with your memory of the things that happened after that?

Q: And your memory doesn't tell you any different from what has been testified about, all of these things that happened following that?

A: No, sir, the best that I can remember, I would go in accordance with them.

Now, Members of the Jury, you should, you should consider all evidence submitted in the trial of this case in arriving at your verdict as to the sentences to be imposed. This would include any evidence of mitigating circumstances received by you in this case.

Even if you find beyond a reasonable doubt that the State has proved the existence of an aggravating circumstance or aggravating circumstances in this case which would justify the imposition of a death sentence, you are not required to recommend that the accused be put to death. You would be authorized under these circumstances to recommend the death penalty, but you are not required to do so.²¹

. . . Can any good come out of this case? I'll say it can. I'll say the good that can come out of it would be this. We know what happens to a case similar to Kelly Waters when he refrains from takingPage 1489drugs. We've found out to our sorrow, to the utter shame of the County, to that event which brought so much sadness to the wife, to the families of the victims in this case, to that occasion which brought so much sadness to the family of the Defendant in this case. We found out what would happen. I say if he is allowed to serve a life, a sentence of life imprisonment, he is a living subject that can be studied, that upon whom the effects of drugs can be determine with more certainty than it can be now. He is a prime case of what can happen if he doesn't take drugs and what steps may be needed by society to ensure that a man in his boots needs to take drugs and needs to be put under such circumstances as you either know he's on drugs or else he's in a condition where, where nothing, no harm can come from him if he refrains from taking them. You going to make him responsible for taking them? Well, he's a nut to start with. It happens every day in our lives. You cannot depend on that. But in his case, you can. In his case, he's an ideal subject for the medical profession to say, all right, here is a man, called to God one day, called to a pistol and handcuffs the next day. He's got that kind of split personality. He doesn't know whether to serve the Lord or serve the Devil. He doesn't even know whether he wants to be a person or not. We'll take him. We'll experiment with him. We'll find out more about what can, the limits of activity in his case. We'll use him for the good of society, so that an offense of this nature will not be repeated. That's the human thing to do in this case. It's a socially advisable thing to do. I agree this sort of thing excites the basest emotions I suppose that can be excited in the human breast; revenge, lack of mercy, all of those kinds of emotions are excited in the mind of any normal person that heard this evidence. Of course, it is. But what is the socially acceptable, merciful, biblical, Christian thing to do here? I say don't kill him. Don't rub him out. Don't put him out of existence. Keep him. Study him. Learn about him. Keep him so he can't do anybody else any harm. Maybe from the result of his continued life, the results . . . of continued examination of him and a study of him will make it possible that the lives of more innocent people will not be sacrificed. I ask you to consider that. And I ask you in reaching your verdict to let this man continue to live in the interest of serving, doing your duty as an enlightened citizen facing up to the tremendous responsibility that the law vest upon you in this case.²³

[W]e find that, in light of the ready availability of the evidence and the absence of a tactical justification for its exclusion, the failure by trial counsel to present and argue during the penalty phase any evidence regarding Cunningham's mental retardation, combined with his failure to present and argue readily available additional evidence regarding Cunningham's head injury, his socio-economic background, or his reputation as a good father and worker, fell outside the range of professionally competent assistance.⁵¹

Dr. Barnard, a court appointed psychiatrist, dealt the defense a devastating blow when he testified on cross-examination that Magill was not under the influence of an extreme emotional or mental disturbance at the time of the crime. This testimony, from adefensewitness, virtually precluded the jury from finding that Magill had established one of the statutory mitigating factors.⁵⁷

"If [counsel] did know that his client was going to say that [he was guilty of premeditated murder], then he was ineffective for presenting this testimony and convicting him out of his own mouth. . . . If he did not know, he was ineffective for not knowing."⁶⁰

[A]lthough the jury heard some testimony concerning [the defendant's] mental condition, the jurors were left with no guidance concerning how they might take such facts into consideration in mitigation of punishment.⁶²

Where a defendant has specifically presented mitigating evidence, the absence of any explanatory instructions on mitigation creates a reasonable possibility that the jury misunderstood the meaning and function of the mitigating evidence in the sentencing deliberations.⁶³

[I]n the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of [the defendant's] mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its "reasoned moral response" to that evidence in rendering its sentencing decision.⁶⁴

There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.⁶⁷