The principal issue before this panel is whether appellant Ross should be allowed to submit additional evidence to this court after issuance of a panel opinion and scheduling of en banc argument. The issue was presented the day preceding en banc rehearing of the case, by Ross' motion to supplement the record with affidavits based on information obtained by attorneys in an unrelated case. Subsequent to the filing of the motion, and en banc argument, the court affirmed the district court's denial of federal habeas corpus relief on all grounds except the one relating to the motion to supplement the record. Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (en banc). The en banc court did not address the motion, but remanded the case to this panel for consideration of the motion and reconsideration of Ross' claim of unconstitutional jury composition. Id. at 1494.

Appellant Ross, a black male, was convicted of the murder of a white policeman, armed robbery, and kidnapping,1 and sentenced to death by an all white and all male jury on March 13, 1974. The Georgia Supreme Court affirmed his conviction and sentence on direct appeal. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1217 (1976). In 1976, Ross filed in state court a petition for habeas corpus relief consisting of twenty-one claims, including an allegation that the grand jury which indicted him and the traverse jury which convicted and sentenced him were selected through procedures that systematically excluded blacks and women in violation of the sixth and fourteenth amendments. At the state court hearing, Ross' attorney, Herbert Phipps,2 explained that when he had gone to the office of the Colquitt County clerk and requested the 1973 jury lists from which the jury venires for 1974, the year in which Ross was indicted and tried, had been picked, the clerk told him that the lists had been destroyed. Phipps also filed an affidavit, dated October 13, 1976 (Exhibit F state habeas petition), with the state court averring that although the 1973 Colquitt County jury lists were no longer available, he had personally examined the lists in connection with other cases he had handled since 1971 and had found unconstitutional underrepresentation of blacks and women. The state habeas court rejected the merits of Ross' jury composition claim due to lack of evidence. The Georgia Supreme Court affirmed, stating it had fully considered all of Ross' contentions but found that he was fairly tried and convicted. Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850, 853 (1977), cert. denied, 435 U.S. 1018, 98 S. Ct. 1890, 56 L. Ed. 2d 397 (1978).

In 1978, Ross filed a petition for federal habeas corpus relief, raising twelve claims, again including an allegation of unconstitutional jury composition, and requested an evidentiary hearing. In December, 1979, after the court granted his motion for discovery, Ross subpoenaed and deposed both the county clerk, Wilbur Murphy, who was custodian of the records, and a former member of the jury commission, Thomas Norman.3 Murphy testified that the jury commissioners revised the lists every two years and that his office kept the one copy of the current jury lists but discarded the old lists when the new ones were completed. He explained that was why he did not have any of the lists from 1970 through 1974. Murphy also stated that the commissioners revised the lists earlier than usual in 1977 in anticipation of an upcoming criminal drug case. He testified that he did not know why the trial judge ordered the early revision, that he believed it was just to make sure the lists were proper, and that he was not aware of any party having requested the revision. Murphy produced no documents in response to the subpoena seeking the jury lists from 1970 through 1974 and other documents identifying the race or sex of jury members in those years, but provided the 1975 and 1977 lists stating they were the only ones he had. Norman testified that the clerk was the sole custodian of the lists and that none of the jury commissioners ever had in his or her possession the entire lists, but only the portions containing the geographic area for which that commissioner was responsible and which were always returned to the clerk. He explained that the jury commissioners started afresh each time they revised the jury lists and did not simply amend the old lists. Norman corroborated Murphy's testimony as to the selection procedures. He added that the early 1977 revision was aimed at getting a closer percentage according to race and sex, and resulted in an increase of women and blacks on the lists although he could not make an accurate estimate as to the degree of increase since 1973 because he did not have the 1973 lists and could not recall the percentage of blacks or women on those lists. He stated that his best guess was that the judge ordered the early revision. Norman did not produce any documents in response to his subpoena which requested the same documents as Murphy's subpoena.

Following the depositions, Ross filed a renewed motion for an evidentiary hearing with a supporting legal memorandum arguing that the discovery depositions revealed significant new evidence on his jury claim entitling him to a hearing. At the court's request, Ross subsequently joined in a consolidated legal memorandum supporting his motion for a hearing with two petitioners in unrelated habeas cases, addressing five common constitutional claims. On January 26 and 27, 1981, the district court held a consolidated hearing to determine what evidence the three petitioners could present and added the jury challenges to the list of common claims. The petitioners' joint evidence consisted of studies showing the unique harm that capital defendants experience when blacks and women are excluded from their juries because members of these two groups are statistically less likely to vote for the death penalty. As a result of the January hearing, the parties understood that the court had limited the evidence which the petitioners could present individually on the jury claims at the May 1981 hearing to showings of cause and prejudice.

After the hearings, the district court denied Ross' petition for habeas corpus. It held that Ross had had a full and fair opportunity to present his jury claim to the state court and had not overcome the presumption of correctness accorded state court findings in federal habeas proceedings under 28 U.S.C. Sec. 2254(d). Ross v. Hopper, 538 F. Supp. 105 (S.D.Ga.1982).4 This panel of the court of appeals affirmed the district court's denial on this ground as well as other grounds. Ross v. Hopper, 716 F.2d 1528, 1537-39 (11th Cir.1983). The full court subsequently granted Ross' motion for rehearing en banc, 729 F.2d 1293, and scheduled oral argument for June 12, 1984.

On June 11, 1984, appellant Ross filed a motion to supplement the record of his habeas petition with four documents, copies of which have been lodged with this court. Two of the documents are depositions taken in conjunction with the district court proceedings: Murphy deposition dated December 6, 1979; Cole deposition dated December 7, 1979 relating to a different claim. The other two documents are affidavits outlining statistical evidence relevant to Ross' claim of unconstitutional composition of Colquitt County's 1973 grand and traverse jury venires: Friedman affidavit dated June 8, 1984; Jenkins affidavit dated June 10, 1984.

Ross now seeks a full hearing on the merits of his jury composition claim in order to develop this evidence, and argues in the alternative that we should grant relief on the merits of his jury composition claim because the proffered evidence presents a prima facie case of unconstitutional jury composition and the state has not suggested any "serious rebuttal testimony." The state argues that the motion to supplement should be denied, or in the alternative, remanded to the district court.

No single alternative correctly resolves all the issues raised by the motion. We find that proper disposition of the motion requires consideration of the request to supplement the record with the 1979 depositions apart from consideration of the request to supplement it with the 1984 affdavits.

According to Ross' memorandum in support of his motion, the Murphy and Cole depositions were two of several taken by Ross' attorneys in connection with the federal district court proceedings that they expected would be automatically filed with the district court pursuant to Fed.R.Civ.P. 30(f)(1) and the Southern District of Georgia's Local Rules. In an affidavit (Boger affidavit dated June 8, 1984) filed in support of Ross' motion to supplement the record, one of Ross' attorneys stated that he and his co-counsel believed that the depositions had been automatically filed with the court and that there had not been a conscious decision to omit them from the record. He explained that they did not file these two depositions as part of their written proffers in 1981 under the then-recently changed Federal Rules5 because they assumed that the depositions were already a part of the record in accordance with the requirements of the Federal Rules in effect at the time of the taking of the depositions.

The state argues that appellant Ross should not be allowed to supplement the record with the deposition of Wilbur Murphy because there was no showing that it could not have been presented to the state habeas corpus court and because the deposition was never submitted to the federal district court. We reject the first argument: whether Murphy's testimony could have been presented to the state court is relevant to whether the evidence conforms to one of the categories of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), requiring the district court to hold a full evidentiary hearing. At this juncture, however, we only decide whether the Murphy deposition should be included in the record, as the Norman deposition is, to be part of the evidentiary proffer aimed at persuading the district court to hold such a hearing. The second argument is without merit because the record as well as the Federal Rules of Civil Procedure in effect at the time of the taking of the deposition reveal that it was reasonable to believe that the Murphy deposition had been filed with the court.

The record reveals that Ross' attorney explained to deponent Murphy during his deposition that the original transcript of the deposition would go directly from the court reporter to the federal court, and could be held by the court reporter for only 30 days during which the deponent could check for errors. No objection nor statement to the contrary was made by the state. The explanation was consistent with Fed.R.Civ.P. 30(e) and (f) in effect on that date which provided for automatic filing of depositions with the court by the officer before whom the deposition was taken. We find that Ross' attorney was justified in relying on the Rule and the understanding of those present at the deposition that this procedure would be followed.

The record also reveals irregularities in the filing of the Norman deposition that indicate that the omission of the Murphy deposition was not deliberate and that the parties could reasonably have believed it had become part of the record.6 Finally, both the appellant7 and appellees8 relied on the Murphy deposition in their pleadings. According to circuit precedent, it is appropriate to supplement the record with a deposition upon which parties relied even though for some unexplained reason it was not filed below. McDaniel v. Travelers Insurance Co., 494 F.2d 1189 (5th Cir.1974);9 see also Clay v. Equifax, Inc., 762 F.2d 952, 955 n. 2 (11th Cir.1985) (district court correctly considered deposition testimony that was presented in briefs and motions even though deposition not filed with court).

We find, therefore, that the Murphy deposition should be made part of the record on appeal. Our actions are authorized under Fed.R.App.P. 10(e). Under Rule 10(e), "[i]f anything material to either party is omitted from the record by error or accident ..., the court of appeals, ... of its own initiative, may direct that the omission or misstatement be corrected...." Murphy's deposition is undoubtedly material to Ross' jury composition claim since Murphy, as the Colquitt County clerk, was the official custodian of the county's jury lists. We therefore grant Ross' motion as to the Murphy deposition. The deposition shall be made part of the record.

The state does not address in its brief the issue of whether or not Ross should be allowed to supplement the record with the Cole deposition and may have read the en banc court's remand of this case to the panel to be limited to the jury composition claim and evidence relevant thereto. The Cole deposition relates to Ross' claim that the state deprived him of the due process guarantees set forth in Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). We have previously reviewed the relevant parts of the Cole deposition in our original panel opinion, Ross v. Hopper, 716 F.2d at 1536 n. 6, in connection with Ross' Giglio claim which we denied. This holding was reinstated by the en banc court. Ross v. Kemp, 756 F.2d at 1486. In light of the limited nature of the remand and the fact that the issue to which this deposition relates has already been resolved by this court, we deny the motion to supplement as to the Cole deposition.

The two 1984 affidavits consist of statements by a statistician (Friedman), and a criminal defense attorney (Jenkins), who were involved in a challenge to the validity of the 1975 jury lists in Colquitt County during pretrial proceedings in a 1977 criminal action (i.e., State v. Nicolai, Crim. No. 5886 (Indictment No. 11977 Super.Ct. Colquitt Co.)). Friedman sets forth in his affidavit the statistics for the racial and sexual composition of the Colquitt County jury lists in 1973 and 197510 and states that he obtained this information from either the clerk or a jury commissioner after he was retained in 1977 by Jenkins to analyze the Colquitt County jury lists that were to be used in the Nicolai case. Jenkins explains in his affidavit that he retained Friedman in 1977 and how he happened to be contacted by Ross' attorneys in 1984.11

Appellant does not claim that the omission from the record of the evidence contained in the 1984 affidavits was a mistake or oversight. Rather, Ross argues that his attorneys attempted to obtain the 1973 jury lists and statistics of the race and sex of those listed from state officials in 1976 and again in 1979, but were told by the state custodian of the records that the 1973 lists had been discarded in 1975. Ross' attorneys only discovered by chance, during their preparation for argument before the en banc court in June of 1984, that the information still existed in Friedman's files. We are faced, therefore, with a situation demanding a different analysis than the request to add the 1979 depositions to the record. Because the information in the affidavits was not before the district court in any form, and because neither of the parties relied on the evidence at an earlier point in the proceedings, Fed.R.App.P. 10(e) is inapplicable to this portion of the motion to supplement.12 Appellant requests that this court exercise its inherent equitable authority to supplement the record on appeal.

A. The Court of Appeals' Inherent Equitable Authority to Supplement the Record

The state does not question this court's authority to supplement the record on appeal. Both parties recognize that this court exercised such authority in Dickerson v. Alabama, 667 F.2d 1364, 1366-68 (11th Cir.), cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982), when we granted the request by the petitioner therein to supplement the record on appeal with a state court trial transcript which the district court had not considered. Furthermore, this court exercised such authority previously in this appeal by our order dated January 7, 1983 granting a motion by the state to supplement the record.13

The state's only argument for denying Ross' motion to supplement is that unlike the request in Dickerson, Ross' motion concerns affidavits containing information "obtained in relation to the trial of a totally distinct case" in which the "instant appellee" was not involved14 and, therefore, never had the opportunity to rebut the evidence. We agree that the state must be provided with an opportunity to rebut the evidence, but we note that a remand to the district court would satisfy this issue.

There are additional concerns, however, that this court must consider before invoking our inherent equitable authority to enlarge the record and consider material that has not been considered by the court below. Such authority is rarely exercised, Dickerson v. Alabama, 667 F.2d at 1367, and this court has not articulated a general rule for when it is appropriate. Rather, we have dealt with such requests on a case-by-case basis.15 We have refused to supplement the record when a party has filed supplemental material without requesting leave of this court or has appended material to an appellate brief without filing a motion to supplement. See Harris v. United States, 768 F.2d 1240, 1242 (11th Cir.1985) (government filed diplomatic note from foreign government with court of appeals without requesting leave to do so); United States v. Bosby, 675 F.2d 1174, 1181 n. 9 (11th Cir.1982) (government attached affidavit to its appellate brief without filing motion to supplement); Mitchell v. Trade Winds Co., 289 F.2d 278, 279 (5th Cir.1961) (Labor Department attached file of correspondence to its appellate brief); see also Kemlon Products & Development Co. v. United States, 646 F.2d 223, 224 (5th Cir.), cert. denied, 454 U.S. 863, 102 S. Ct. 320, 70 L. Ed. 2d 162 (1981) (denial of motion to supplement record with items from related pending litigation between same parties, relying on general proposition that "court of appeals will not ordinarily enlarge the record on appeal to include material not before the district court.").

The cases in which we have allowed supplementation suggest consideration of several factors in deciding whether to exercise our discretionary authority. In Dickerson, we listed three factors that convinced us to exercise our discretionary power. First, acceptance of the proffered material into the record would establish beyond any doubt the proper resolution of the pending issue. 667 F.2d at 1367. Second, remanding the case to the district court for consideration of the additional material would have been "contrary to both the interests of justice and the efficient use of judicial resources." Id. Third, the court cited the unique powers that federal appellate judges have in the context of habeas corpus actions by virtue of 28 U.S.C. Sec. 2254(a). Id. at 1368 & n. 7. The Fifth Circuit acknowledged the significance of these first two factors in Gibson v. Blackburn, 744 F.2d 403, 405 n. 3 (5th Cir.1984), and relied on them to justify its consideration of photographic evidence used in a pretrial identification display that was added to the record after the district court had rendered its final judgment. Both the Eighth Circuit and the District of Columbia Circuit have invoked similar "interests of justice" language. See Turk v. United States, 429 F.2d 1327, 1329 (8th Cir.1970) (authorizing enlargement of record on appeal with preliminary hearing evidence not presented to trial court if it is "in the interest of justice" to do so); Gatewood v. United States, 209 F.2d 789, 792 n. 5 (D.C.Cir.1953) (court of appeals considered transcript of preliminary proceedings which had not been before trial court because it was in interest of both parties and due administration of justice).

This circuit does not consider the same factors in all cases, however. In Erkins v. Bryan, 663 F.2d 1048, 1052 (11th Cir.), cert. denied, 459 U.S. 989, 103 S. Ct. 343, 74 L. Ed. 2d 384 (1982), the panel allowed a party to supplement the record with documentary evidence that had been quoted in part in affidavits, but not presented in its entirety to the trial court. The only stated justification for granting the motion in that case was the fact that the other party had not objected to the motion. Id. at 1052 n. 1. In United States v. Aulet, 618 F.2d 182, 186 (2d Cir.1980), the Second Circuit cited the convergence of the parties' positions, in addition to the first two Dickerson factors, as a reason for allowing the government to supplement the record with copies of Jencks Act statements that had been disclosed to the appellant but had not been presented to the trial court.16

Ross' case ordinarily would not constitute a situation in which it would be appropriate to exercise our inherent authority because, unlike the cases discussed above, Ross did not file his motion to supplement until after a panel of this court had already considered the issue and the parties had submitted briefs for en banc reconsideration. The motion concerns evidence relating to jury lists compiled more than ten years ago--evidence that was not included on Ross' direct appeal, nor in his state or federal habeas proceedings. Also, Ross has not yet established, under Dickerson 's first factor, that acceptance of the proffered material would establish beyond doubt that he is entitled to a full evidentiary hearing on his jury claim under Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). One of the elements that Ross must establish under Townsend17 is that his failure to present the proffered material to the state court was not the result of inexcusable neglect. 372 U.S. at 317, 83 S.Ct. at 759. Taken at face value, the proffered affidavits showing that the defense lawyers in the Nicolai case found the material in early 1977 and convinced the trial judge to order revision of the 1975 lists, suggest that the statistical evidence of jury composition was not so hidden that Ross' attorneys could not have discovered it at the time of the state habeas proceedings in December of 1976. The record as it stands does not explain Ross' failure to subpoena the clerk and the 1973 lists into state court. Furthermore, Ross has not adequately explained why the statistical evidence was not discovered during the federal habeas proceedings through following up on Murphy's and Norman's remarks about the revision of the 1975 list.18

At the same time, however, we are extremely disturbed by the fact that the apparent negligence on the part of Ross' attorneys may have been due to their reliance on misrepresentations by the state official who had legal custody of the records. We are also disturbed by the state official's failure to produce the Nicolai records or any other documents when he was subpoenaed and deposed in 1979 in connection with Ross' federal habeas proceedings. Equally disquieting is the seeming inconsistency in the disclosure of the jury lists to different attorneys in different cases. These unanswered questions and inconsistencies in the record as it stands are even more troublesome viewed in light of the fact that the evidence pertains to a claim which Ross raised as early as 1976 in his state habeas petition and which he continued to pursue in his federal habeas proceedings. Moreover, Ross' proffered evidence, if included in the record, would certainly appear to have a definite impact on his ability to prove the illegal composition of his grand and traverse juries.19 Because of these allegations, we find it appropriate to invoke our inherent authority and remand the motion to supplement the record to the district court for a hearing to resolve the threshold issue of inexcusable neglect. See Thomas v. Zant, 697 F.2d 977, 986 (11th Cir.1983), appeal on other grounds following remand, 766 F.2d 452 (11th Cir.1985) (recognizing that inexcusable neglect issue "may itself require an evidentiary hearing").

Our remand in this case is consistent with the other concerns mentioned in Dickerson. Because of the significance of the alleged constitutional violations, the interests of justice will best be served by remanding for further hearings. The Supreme Court recently reaffirmed its position that discrimination on the basis of race in the selection of grand jurors undermines the fundamental values of the judicial system and of society as a whole to such an extent that in the face of such a practice, the criminal defendant's conviction must be reversed. See Vasquez v. Hillery, --- U.S. ----, 106 S. Ct. 617, 622, 88 L. Ed. 2d 598 (1986).20 This court too, on more than one occasion, has recognized the special importance of a jury representing all segments of the community. We have further noted that "[t]he importance of affording a defendant trial by a representative jury of his peers is magnified in capital cases, where juries are required to consider 'as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.' " Davis v. Zant, 721 F.2d 1478, 1482 (11th Cir.1983), aff'd in relevant part on rehearing en banc, 752 F.2d 1515, cert. denied, --- U.S. ----, 105 S. Ct. 2689, 86 L. Ed. 2d 707 (1985) (quoting in part Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978) (emphasis in original)); Gibson v. Zant, 705 F.2d 1543, 1546 (11th Cir.1983). The remand will also result in efficient use of judicial resources as it will eliminate a successive habeas petition on this claim. See Sanders v. United States, 373 U.S. 1, 22, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) (encouraging flexible handling of petitions for habeas corpus to avoid successive petitions). Finally, we note that in the instant case, this court, like the Dickerson court, is "reviewing the district court's review of the habeas corpus claim of a state prisoner" and as federal appellate judges, we "have been granted unique powers in the context of habeas corpus actions." 667 F.2d at 1368 & n. 7.

At the hearing before the district court on remand, the parties shall present evidence on the issue of inexcusable neglect including the unanswered questions: whether the clerk agrees that in 1976 he advised Ross' attorneys that the 1973 lists already had been destroyed; whether it was the clerk or the jury commissioners who gave the lists to the Nicolai lawyers; why the clerk did not produce the Nicolai records in response to the 1979 subpoena; why the clerk did not disclose during his 1979 deposition that he had testified at the Nicolai hearing; why Ross' attorneys did not subpoena the clerk and the jury commissioner to testify and to produce the 1973 jury lists at the state court habeas hearing; and why Ross' attorneys did not pursue the clerk's reference to the Nicolai case during the federal habeas proceeding by checking the court records and newspaper accounts or by further depositions concerning the Nicolai case. Only after such a hearing will the district court be able to determine whether Ross' attorneys' failure to locate the statistical evidence sooner was inexcusable neglect or whether the negligence was excusable action in reliance on misrepresentations by the custodian of the state records. See Thomas v. Zant, 697 F.2d at 980-83 (analyzing when defendants' and attorneys' actions constitute inexcusable neglect and when they do not).

If the district court finds at the hearing that Ross has shown there was no inexcusable neglect then the court shall allow the record to be supplemented and determine whether the record, as supplemented, is sufficient, under Townsend v. Sain, to entitle Ross to a full evidentiary hearing on the merits of his jury composition claim. In order to prevail on the merits, Ross must present a prima facie case to the district court and to this end should be permitted to present additional testimonial or documentary evidence bearing on the claim. The state would be able to present rebuttal evidence.21 The district court would then determine whether or not Ross was indicted, and/or convicted and sentenced by an unconstitutionally composed jury and therefore entitled to habeas corpus relief.

In conclusion, we hereby GRANT the motion to supplement the record as to the Murphy deposition pursuant to Fed.R.App.P. 10(e), DENY the motion as to the Cole deposition, and REMAND this case to the district court for the limited purposes as set forth in our opinion above.

LYNNE, District Judge, concurring in part and dissenting in part:

I concur in Parts I, II, III, and IV-A of the sensitive and carefully structured opinion of the court. My disagreement with the decision of the majority to remand the motion to supplement the record with the Friedman and Jenkins affidavits is a narrow, but critical one.

As the court acknowledges, one of the elements that Ross must establish under Townsend is that his failure to present the proffered material to the state court was not the result of inexcusable neglect. The only excuse discerned by the court on this record for failure to have to have done so is the single unsworn statement of Phipps, his attorney, at the state habeas hearing on December 9, 1796, as follows:

MR. PHIPPS: Your Honor, on claim 21, we have no evidence to present because when I went to the Clerk's Office in Cloquitt County to examine the jury list that were [sic] in use at that time, I was informed by the Clerk that about a year ago the jury list was revised and the practice is that when they revise they discard the trial list. So the Clerk was unable to find a list that could be identical as the one in use at that time. So we don't have any further evidence on that, uh, claim.

If the two affidavits are to be credited, they establish beyond peradventure that the relevant jury lists were in existence at the time of the state habeas hearing since they were made available to Friedman approximately one month later by either the clerk of the court or by the jury commissioners.

On February 25, 1977, Friedman's statistical study of the jury lists was relied upon by the defendants in the Nicolai case to support their challenge to the jury lists. On that date a front page article in The Moultrie Observer publicized the attack on the Colquitt County grand and petit juries with specific reference to the Friedman statistics.

It is incomprehensible that a lawyer who frequently practiced in Moultrie with a population of approximately fifteen thousand, the county seat of Colquitt County, was not aware of the purported factual basis for a challenge to the jury lists and of an opportunity to move to supplement the record either in the state habeas court or the record on appeal to the Georgia Supreme Court from its judgment. Of compelling significance is the failure to come forward with the Friedman evidence in behalf of Ross at the federal habeas hearing on January 26 and 27, 1981.

Not until the eve of the oral argument before the en banc court was an effort made to supplement the record with material which was never before either the state or federal habeas court. Since in my view inexcusable neglect is so glaringly apparent on the record, I would recognize the motion to supplement for what it is, a last ditch effort to bolster a failing cause. I would forthrightly deny it.

From the order remanding such motion to the district court, I respectfully dissent.