Trial Proceedings Transcript Vol. 3
Public Court Documents
August 10, 1983
210 pages
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Case Files, McCleskey Legal Records. Trial Proceedings Transcript Vol. 3, 1983. d35eb077-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0288279a-4445-4fad-b1b4-a84abb5c4314/trial-proceedings-transcript-vol-3. Accessed August 19, 2025.
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1 IN THE UNITED STATES DISTRICT COURT
x, OR THE NORTHERN DISTRICT OF DEORGIA
3 | ATLANTA DIVISION
4 e's we
| 5 | WARREN MCCLESKEY ) DOCKET NO. C31 2434A
= | )
J @ & J |
| PLAINTIFF, ) ATLANTA, GEORGIA |
7 ) |
| -VS- ) AUGUST 10, 1983 |
io | ) |
WALTER D. ZANT, WARDEN ) |
9 ) i
)
10 DEFENDANT. ) |
11 -—- |
12 | VOLUME III
13 | TRANSCRIPT OF PROCEEDINGS |
14 | BEFORE THE HONCRABLE J. OWEN FORRESTER. UNITED STATES DISTRICT
15 | JUDGE.
17 APPEARANCES OF COUNSEL:
13 FOR THE PLAINTIFF: JOHN CHARLES BOGER: TIMOTHY K. FORD
y AND ROBERT H. STROUP. |
&® 1% |
| |
20 |FOR THE DEFENDANT: MARY BETH WESTMORELAND AND |
| SUSAN V. BOLEYN.
21 | |
or i
|
| JIM PUGH |
vv NFFICTAL COURT REPORTER |
| | ROOM 2267. 75 SPRING STREET: S.W. |
zai | ATLANTA, GEORGIA 30303 |
7 | WITNESSES |
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DIRECT CROSS REDIRECT RECROSS
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WITNESSES FOR THE PLAINTIFF:
GATES, EDWARD RAYMOND 434 337 S80
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1 DOCUMENTARY EVIDENCE
2 MARKED RECEIVED
3 | EG-6A 437
4 |EG-4B 437
5 | DB-45 590
pt & | DB-46 591 |
7 | DB-47 595 |
3 | DB-50 606
$ | DB-51 609
10 |DB-54 619
11 DB-55 619 620
12 | DB-S6& 627
13 | DB-57 633
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434
GATES - DIRECT
1 (ATLANTA, FULTON COUNTY, GEORGIA: AUGUST 10, 1983.
2 IN OPEN COURT.)
3 - i
THE COURT: ALL RIGHT, MR. FORD, CONTINUE.
MR. FORD: THANK YOU, YOUR HONOR.
4
5
&
7 EDWARD RAYMOND GATES.
8 BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
9 TESTIFIED FURTHER AS FOLLOWS:
0 DIRECT EXAMINATION (CONT”D)
11 BY MR. FORD:
12 @. MR. GATES. I BELIEVE YESTERDAY, WHEN WE FINISHED WE HAD JUST
13 TURNED TO THE DOCUMENT IN YOUR, IN THE EXHIBIT BOOK MARKED
14 EG-6A, GEORGIA SUPREME COURT, GEORGIA PAROLE BOARD
15 QUESTIONNAIRE, 4/5/81 WITH SOME HANDWRITING ON IT, XEROX COPY,
146 APPARENTLY, WITH, NOT VERY CLEAR.
17. IS THAT --
18 A. THAT’S RIGHT.
w 19 @. DO YOU RECALL THAT? DO YOU HAVE THAT BEFORE YOU?
20 A. YES. 1 DO.
21 R. DO YOU RECOGNIZE WHAT THAT IS?
22 A. YES. THAT'S A GUESTIONNAIRE THAT WAS FILLED QUT BY JOHN
23 GREEND, OR A COPY OF A QUESTIONNAIRE. IN THE SUMMER OF 1981.
24 Mm. HOW CAN YOU TELL IT WAS FILLED OUT BY MR. GREENO?
23 A. IN THE TOP LEFT-HAND CORNER IT HAS HIS NAME.
435
GATES = DIRECT
1 @. ARE YOU FAMILIAR WITH HIS HANDWRITING?
2 A. YES, I AM,
3 @. SEEN IT A NUMBER OF OCCASIONS?
4 A. YES.
5 Q@. AND HAVE YOU HAD A CHANCE TO REVIEW THE COPY YOU HAVE THERE?
% 6 A. YES. I HAVE.
7 @. AND DOES IT APPEAR TO BE. OR ARE YOU ABLE TO TELL WHETHER
f IT’S AN EXACT COPY OF THE ORIGINAL THAT WAS DONE AT SOME POINT?
9 A. IT APPEARS TO BE.
10 @. DO YOU RECALL ANYTHING ABOUT THIS, HAVING SEEN THIS
11 PARTICULAR ONE PRIOR TO THE PREPARATION FOR THIS TRIAL?
12 A. NO, I DON’T.
13 @. NOW, ASKING YOU TO TURN TO THE BACK OF 6A, EG-6A, JUST
14 BEFORE THE BLUE SHEET, YOU FIND A TYPEWRITTEN PIECE OF PAPER?
13 A. YES. 1 DO.
164 |®. AND CAN YOU TELL WHAT THAT IS?
17 A. YES. THAT'S A SUMMARY OF ONE OF THE CASES THAT WAS CODED.
18 ITS IN THE GENERAL FORMAT THAT THE CODERS WERE INSTRUCTED TO
pe i WRITE THE SUMMARIES.
20 @. DO YOU KNOW WHETHER THAT S AN EXACT COPY OF THE SUMMARY FOR
21 THIS CASE OR WHETHER. CAN YOU TELL ANYTHING ABOUT THAT?
22 A. I CAN ONLY TELL BASED ON THE CODING ON THE INSIDE OF THE
23 QUESTIONNAIRE PROPER WHETHER OR NOT IT“S A, IT REPRESENTS THE
24 CODING OF THE QUESTIONNAIRE. BUT I CAN'T TELL IF THIS IS AN
23 EXACT COPY OF HIS HANDWRITTEN SUMMARY.
eg, nae peer —t RR —————— —— So————————————-——— T—— S———,—— ———— —— ——— ——— ———. — A —— ———
4346
GATES - DIRECT
1 R. AND ALSO. MAYBE WE CAN TURN BACK ONE PAGE.
£ THE PAGE I HAVE BEFORE THAT IS 337
3 A. YES.
4 3. NOW. DO YOU HAVE ANY ADDITIONAL PAGES THERE AT THE END OF
THAT COPY OF &A7 a
A. NO, I DON‘T. 5
7 @. OKAY. AND WOULD THERE ORDINARILY BE, WOULD THAT BE THE
8 | ORDINARY FORM OF A QUESTIONNAIRE FOR STUDY NUMBER 2, WOULD THAT
9 BE THE LAST PAGE? WHAT WOULD BE AT THE END THERE?
10 A. ORDINARILY THERE WOULD BE 3 MORE PAGES. THERE WOULD BE ONE
11 PAGE THAT WAS A PAGE WHERE YOU COULD CODE AMBIGUITIES. THAT YOU
12 | HAD ENCOUNTERED IN CODING THE FILE, AND THERE WOULD BE A PAGE
13 | FOR THE SUMMARY, AND THEN THERE WOULD BE A PAGE THAT WAS A WORK
14 SHEET. IT CONTAINED INFORMATION ABOUT THE DEFENSE ATTORNEY.
15 PROSECUTING ATTORNEY, SO ON.
16 @. WITH THAT EXCEPTION. GENERALLY. DOES YOUR COPY OF EG-6A
17 APPEAR TO BE THE KIND OF THING THAT YOU WERE REVIEWING MANY MANY
18 OF IN THE SUMMARY OF 19817
% 19 A. YES.
20 @. AND THEN TURNING TO 6B» WHICH IS, IMMEDIATELY FOLLOWS EG-6B.
21 WHAT DOES THAT APPEAR TO BE?
22 A. THAT ALSO APPEARS TO BE A COPY OF ONE OF THE QUESTIONNAIRES
23 THAT WAS FILLED OUT IN THE SUMMARY OF 1931.
24 0. NOW. AGAIN TURN TO THE BACK OF THAT DOCUMENT. WHAT DO YOU
25 FIND THERE?
437
GATES - DIRECT
A. LIKEWISE I FIND A SUMMARY THAT’S IN THE GENERAL FORMAT OF
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THE SUMMARIES AS THEY WERE WRITTEN BY THE CODERS THAT SUMMER,
AND ALSO I FIND THE ABSENCE OF THE LAST 3 PAGES OF THE
QUESTIONNAIRE, WHICH WOULD HAVE BEEN THE SUMMARY. THE AMBIGUITY
SHEET AND THE WORK SHEET.
@. OTHERWISE, DOES THAT DOCUMENT APPEAR TO BE THE KIND OF THING
YOU WERE REVIEWING IN THE SUMMER OF 19817
A. YES.
MR. FORD: YOUR HONOR, AT THIS TIME. I WOULD OFFER 6A
AND 4B, I THINK FOR JUST ILLUSTRATIVE PURPOSES IN REVIEWING THE
PI
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QUESTIONNAIRE AND THE MANNER IN WHICH IT WAS FILED OUT.
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N MS. WESTMORELAND: YOUR HONOR, IF THESE ARE ONLY BEING
13 OFFERED AS EXAMPLES OF QUESTIONNAIRES. I HAVE NO PARTICULAR
14 OBJECTION. I DO NOTE THAT MR. GATES DID NOT FILL OUT EITHER ONE
13 OF THESE QUESTIONNAIRES AND WOULD NOT BE ABLE TO NECESSARILY
16 VERIFY THE ACCURACY. BUT I UNDERSTAND THAT IT’S JUST FOR
17 EXAMPLE AND ILLUSTRATIVE PURPOSES, AND FOR THAT. I HAVE NO
18 OBJECTION.
w 19 THE COURT: ALL RIGHT, THEY WILL BE ADMITTED.
20 BY MR. FORD:
23 @. MR. GATES, I DON’T KNOW IF I ASKED YOU THIS YESTERDAY. HOW
22 MANY QUESTIONNAIRES DID YOU ACTUALLY FILL QUT YOURSELF DURING
23 THE SECOND STUDY? |
24 A. I THINK I FILLED OUT ONE.
23 @. HOW MANY DID YOU REVIEW AND CHECK AGAINST THE FILE?
— ————— ———. S—— S————— — —————— — —— ——-
GATES ~ DIRECT
1 A. 1 REVIEWED APPROXIMATELY 230.
@. AND YOU DON‘T KNOW WHETHER EITHER ONE OF THESE WAS ONE OF
THE ONES YOU REVIEWED?
A. NO, I DONT.
A
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@. DO YOU KNOW WHAT. DO THESE TWO HAVE ANY SPECIFIC
SIGNIFICANCE, OR HOW THEY HAPPEN TO BE HERE, RATHER THAN SOME
~
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OTHER EXAMPLE OF THAT WORK?
8 A. ONLY WHAT IVE BEEN TOLD. I —
Ed @. WHAT’S YOUR UNDERSTANDING WITH REGARD TQ THAT?
10 MS. WESTMORELAND: I OBJECT TO THAT AS BEING HEARSAY
11 UNLESS HE HAS SOMETHING OF HIS OWN PERSONAL KNOWLEDGE WHY
12 THEYRE THERE.
13 MR. FORD: WELL. I“M NOT ACTUALLY OFFERING IT FOR THE
14 TRUTH OF HOW IT GOT HERE, YOUR HONOR. I“M JUST TRYING TO GET AN
15 ANSWER FROM MR. GATES WHETHER THESE WERE SOMEHOW SELECTED FOR
16 SOME PARTICULAR NEFARIOUS PURPOSE.
17 THE COURT: YOU ARE OFFERING IT FOR THE PROOF OF THE
18 MATTERS ASSERTED THEREIN, AND I SUSTAIN THE OBJECTION.
ft 19 BY MR. FORD:
20 Q. DO YOU KNOW IF THESE WERE SELECTED FOR ANY -— WELL YOU DON-T
21 KNOW HOW THEY WERE SELECTED, I GUESS. OKAY. THE —-
22 MR. FORD: PERHAPS COUNSEL WILL STIPULATE THAT THESE
23 TWO QUESTIONNAIRES WERE SPECIFICALLY REQUESTED BY THE STATE
24 RECENTLY FROM DOCTOR BALDUS, SO THE COURT COULD AVOID SOME
23 CONFUSION AND SOME WASTE OF TIME LATER ON IN TYING THAT UP
GATES - DIRECT
THROUGH TESTIMONY.
THE COURT: YOU CAN WORK THAT OUT AT THE NEXT BREAK.
LET“S GO AHEAD.
MR. FORD: PARDON?
THE COURT: I SAY YOU CAN WORK THAT OUT AT THE NEXT
BREAK. LETS GO AHEAD.
MR. FORD: THANK YOU, VERY MUCH, YOUR HONOR.
BY MR. FORD:
Q@. MR. GATES, LETS START ON THE FIRST PAGE OF THIS EG-&4A, AND
CAN YOU GENERALLY DESCRIBE WHAT KIND OF INFORMATION IS CONTAINED
ON THAT PAGE?
A. YES. GENERALLY THAT INCLUDES INFORMATION LIKE THE OFFENDER”S
NAME, THE DATE OF THE OFFENSE AND HIS ARREST, DATE OF THE
SENTENCE, CONVICTION. AND WHO THE JUDGE WAS, WHO THE DISTRICT
ATTORNEY WAS, AND THE STATUS OF DEFENSE COUNSEL.
@. SIMILAR SORT OF THING AS TO WHAT WAS IN STUDY NUMBER ONE AT
THE BEGINNING, SAY?
A. THAT’S CORRECT.
@. AND TURNING TO PAGE 2, QUESTION NUMBER 10 AT THE TOP.
CAN YOU DESCRIBE WHAT THAT PAGE ENTAILS?
A. YES. THIS IS AN IMPROVEMENT OVER THE PRIOR QUESTIONNAIRE,
AND WHAT THIS QUESTION ALLOWS ME TO DO IS TO CODE FOR THE CRIMES
THAT THE OFFENDER WAS INDICTED FOR, AND THE DISPOSITION OF, OF
THOSE INDICTMENTS.
THE WAY IT’S SET UP, IF YOU NOTICE. IN THE FAR
a —— —n goed ote S—t gy Freee. — —— ——e————————— —— —— ——— ————. ——— —— —— f——— —————————— —————. ———
450
GATES - DIRECT
LEFT-HAND COLUMN, IT LISTS CRIME NUMBER 1. 2, 3, 4. IN THIS
Py
CASE, MY COPY IS, IS NOT A GOOD COPY. I DONT KNOW IF THAT'S
THE SAME ON YOURS. BUT I CANT REALLY READ THE FIRST TWO COLUMNS
UP AT THE TOP.
ANYWAY, THAT WOULD ORDINARILY BE CODED, IS THAT UNDER
COLUMN ONE, THE CRIME THAT THE PERSON WAS INDICTED FOR, IN THIS
CASE, IT WAS MURDER.
AND THEN UNDER COLUMN 2, THE NUMBER OF COUNTS THAT THE
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OFFENDER WAS INDICTED FOR, WAS ONE.
10 COLUMN 3 ALLOWS YOU TO DESCRIBE WHETHER OR NOT THE
11 DEFENDANT PLED GUILTY OR NOT GUILTY, AND AS IT INDICATES HERE.
12 20 IS A NOT GUILTY PLEA.
13 IN COLUMN 4, THAT DESCRIBES WHAT THE JURY OR THE BENCH
14 DECISION WAS IN THE CASE. AND HERE THE JURY. BENCH DECISION WAS
13 1,» AND THAT REPRESENTS MURDER.
16 IF YOU HAD CODED A "2" THERE THAT WOULD REPRESENT THAT
17 THE JURY OR BENCH DECISION WAS VOLUNTARY MANSLAUGHTER
18 CONVICTION.
R 19 AND THE WAY YOU CAN DISTINGUISH WHETHER OR NOT IT WAS A | 20 JURY OR BENCH DECISION, IF YOU TURN BACK TO PAGE 1, QUESTION &.
21 THAT ALLOWS YOU TO CODE THAT INFORMATION IN. |
22 COLUMN NUMBER 5 ALLOWS YOU TO CODE THE NUMBER OF COUNTS
23 OF THAT CRIME THE OFFENDER WAS CONVICTED OF. AND COLUMN NUMBER
24 & ALLOWS YOU TO CODE THE TERM OF THE SENTENCE.
235 @R. NOW, WITH REGARD TQ THE TOP OF THE PAGE, THEN, WHAT KIND OF
441
GATES ~ DIRECT
1 INFORMATION IS UP THERE? THERE’S QUITE A BIT OF WRITING.
2 A. WELL. THERE‘S TWO PARTS. THE FIRST PART, THE LIST OF
3 NUMBERS THAT GOES FROM 1 UNTIL 16 ARE THE POSSIBLE CATEGORIES OF
4 CRIMES THAT YOU CAN ENTER INTO THIS MATRIX DOWN BELOW.
3 AND THE SHORT PARAGRAPHS THAT ARE NEXT TO NUMBERS 2, 3»
p é '4 AND & DESCRIBE THE PROPER METHOD FOR CODING THAT INFORMATION
7 INTO THE MATRIX BELOW.
8 @. DO YOU KNOW IF THERE WERE ANY ADDITIONAL INSTRUCTIONS THAT
? WERE UTILIZED DURING THE STUDY FOR FILLING THIS PARTICULAR PART
10 OUT, OTHER THAN ALL THESE CODES UP AT THE TOP? :
11 A. YES. IN THE GENERAL INSTRUCTIONS THERE’S., I BELIEVE, TWO
12 PAGES OF INSTRUCTIONS THAT JUST DEAL WITH THE FROPER WAY OF
13 CODING ALL THIS INFORMATION INTO THIS MATRIX.
14 QR. AT THIS TIME. MR. GATES, -—
13 MR. FORD: ~-- MAY I APPROACH THE WITNESS, YOUR HONOR?
16 THE COURT: YES. SIR.
17 BY MR. FORD:
13 @. I CALL YOUR ATTENTION TO EXHIBIT NUMBER DB-43 THAT’S ALREADY
» 19 BEEN ADMITTED. THE TITLE, "INSTRUCTIONS FOR CODING THE GEORGIA
20 PAROLE BOARD QUESTIONNAIRE. MAY, 1931."
21 AND I“D LIKE YOU TO TURN TQ PAGE 6 OF THAT DOCUMENT.
22 PLEASE.
23 IM SORRY, IM SORRY. COULD YOU TURN TO PAGE 4 OF THAT
24 DOCUMENT, THAT PAGE NUMBERED 4 AT THE TOP, DIRECTIONS FOR |
23 FILLING OUT THE PAROLE BOARD RUESTIONNAIRE. |
GATES - DIRECT
Pa
DOWN AT THE BOTTOM THERE, GOING ON TO THE NEXT PAGE. 5»
THE NEXT PAGE, &, AND ON TO THE TOP OF THE NEXT PAGE. 7.
CAN YOU JUST DESCRIBE GENERALLY WHAT THAT I37
A. WELL, WHAT 1 HAVE BEFORE ME ARE NOT -- THEY ARE INSTRUCTIONS
THAT INCLUDE THE INSTRUCTIONS FOR THE QUESTIONS 1 THROUGH 10 OF
THE QUESTIONNAIRE.
QR. THAT'S ON PAGE 47?
A. STARTING AT THE. STARTING AT THE BOTTOM OF 4, I HAVE
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INSTRUCTIONS ON HOW YOU RESOLVE AMBIGUITIES.
@. SORRY. I THINK I“VE GOT MY DOCUMENTS MIXED UP. [w
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12 @. I THINK I DID MEAN é&.
13 MR. FORD: I APOLOGIZE TO THE COURT. THERE‘S A LOT OF
14 NUMBERS AROUND HERE. HOPEFULLY I-M NOT, MR. GATES IS MUCH
15 BETTER AT IT THAN I.
16 BY MR. FORD!
17 @. THE, ON PAGE NUMBER &, 7, TO THE TOP OF 37
18 A. YES. THOSE ARE THE INSTRUCTIONS THAT 1 REFERRED TO THAT.
y 15 THAT LAY OUT IN EXACT TERMS THE WAY THAT YOU CODE THIS MATRIX ON
20 PAGE 2 OF THE QUESTIONNAIRE.
21 @. I°D ASK YOU TO KEEP WITH YOU EXHIBIT 43 THERE, SO WE CAN
22 PERHAPS, IF WE NEED ANY ADDITIONAL CROSS REFERENCES AND I“LL TRY
23 TO KEEP IT MARKED S0 I DON’T LOSE MY PLACE AS WE MOVE ON TO THE
24 NEXT QUESTIONS IN THE INSTRUCTIONS OR IN THE QUESTIONNAIRE. IN
23 SA.
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GATES - DIRECT
1 A. YES.
2 @. COULD YOU TURN TO PAGE 3 OF bA7?
3 WHAT KIND OF INFORMATION, GENERALLY. IS CONTAINED ON
4 THAT PAGE?
> A. THE INFORMATION CONTAINED ON THAT PAGE IS INFORMATION
6 CONCERNING PENALTY TRIALS.
7 @. AND IN THIS PARTICULAR CASE, THERE APPEARS TO BE A 1 AT THE
8 TOP, ON MY COPY. AND A NUMBER OF BLANKS.
Ly CAN YOU EXPLAIN WHAT THAT INDICATES?
0 A. YES. AS THE CODE INDICATES. A "1" IS AN ANSWER YES, TO THE
11 RUESTION, WAS THERE A PENALTY TRIAL.
12 @. WHY WOULD THE REST OF ALL THOSE VARIABLES BE BLANK THERE? 13 A. WELL, ORDINARILY. IF A QUESTIONNAIRE WAS FILLED OUT AT THE
14 DEPARTMENT OF PARDONS AND PAROLES. WE WOULDN’T HAVE THE
13 INFORMATION OF THE PENALTY TRIALS AVAILABLE TO US THERE. SO WE
16 WOULD LEAVE THIS INFORMATION BLANK TD BE LATER FILLED IN BY
17 PROFESSOR BALDUS.
18 @. OTHER THAN THAT PARTICULAR INFORMATION ABOUT THE PENALTY
19 TRIAL, AGGRAVATING CIRCUMSTANCES, IN THE COURSE OF YOUR REVIEW,
20 I BELIEVE YOU SAID YESTERDAY OF A HUNDRED OR 50 CASES WHERE YOU 21 LOOKED AT BOTH THE GEORGIA SUPREME COURT AND PAROLE BOARD FILES,
22 THERE WERE A NUMBER OF CASES WHERE IN EACH CASE YOU ACTUALLY |
23 LOOKED AT BOTH FILES?
24 A. IT WAS LESS THAN THAT. IT WAS MORE LIKE FIFTY.
23 @. WHERE YOU WOULD LOOK AT BOTH FILES IN THE SAME CASE?
444
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GATES - DIRECT
1 A. YES.
Q. BASED ON THAT AND YOUR OTHER EXPOSURE, WAS THERE ANY OTHER
[8
3 SYSTEMATIC DIFFERENCE BETWEEN THE TWO SOURCES IN TERMS OF THE
4 KIND OF INFORMATION ABOUT THE OFFENSE. THE OFFENDER THAT IT
WwouLD GIVE YOU? wu
A. NO. THE TWO SOURCES CONTAINED THE SAME INFORMATION.
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@. THE, TURNING THEN ON EG-4 TO PAGE 4, DOWN UNDER
3 "CHARACTERISTICS OF THE DEFENDANT."
¥ FIRST LINE 14, THE DEFENDANT’S AGE.
10 LETS TALK ABOUT 17.
11 WHAT DOES 17, QUESTION NUMBER 17 INDICATE THERE?
12 A. THAT ALLOWS YOU TO CODE THE DEFENDANT’3S LIVING ARRANGEMENTS
13 PRIOR TO HIS OR HER APPREHENSION. AND THE CODES THAT YOU CAN
14 USE THERE ARE 1, 2, BLANK AND U.
13 IN THIS CASE, FOIL NUMBER 49 IS CODED 1. WHAT THAT
16 MEANS, IT WAS EXPRESSLY STATED IN THE FILE THAT THE DEFENDANT
17 WAS LIVING WITH SPOUSE AND CHILDREN.
18 YOU“LL ALSO NOTE THAT THE OTHER FOILS IN THAT QUESTION
» 19 ARE BLANK, AND IF IT WAS EXPRESSLY STATED THAT THE DEFENDANT WAS
20 LIVING WITH SPOUSE AND CHILDREN, THEN IT“S INCONSISTENT WITH THE
21 INFORMATION IN THE FILE THAT THE DEFENDANT WOULD BE DOING ANY OF
22 THOSE OTHER THINGS.
23 MP. WHAT OTHER ALTERNATIVES COULD THERE BE IN FILLING DUT THIS
24 SECTION, THE 2 AND THE U, WHAT WOULD THOSE MEAN?
23 A. THE 2 MEANS SUGGESTED BY THE FILE BUT NOT SPECIFICALLY
445
GATES - DIRECT
1 INDICATED. AN EXAMPLE OF THAT MIGHT BE IN THE PERSONAL HISTORY
EVALUATION IN THE DEPARTMENT OF PARDONS AND PAROLES FILES. THERE
MIGHT BE SEVERAL STATEMENTS BY THE DEFENDANTS WIFE, AND THEN AN
INDICATION THAT HE HAS SEVERAL CHILDREN, AND BASED ON THAT KIND
OF INFORMATION. IT WOULD BE SUGGESTED BY THE FILE THAT THE
DEFENDANT WAS LIVING WITH HIS SPOUSE AND CHILDREN.
@. AND THE U, WHAT WOULD THAT MEAN. THERE?
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A. AND THE U SIMPLY MEANS THAT YOU CAN‘T CLASSIFY THIS, 1, 2,
e OR BLANK.
10 @. THAT UJ WOULD GO. WOULD THERE BE JUST ONE U FOR THE WHOLE
11 QUESTION 17 OR WOULD THAT GO TO ANY PARTICULAR FOIL?
12 A. OH NO. YOU WOULD ANSWER EACH PARTICULAR FOIL IN THAT
13 RUEST ION.
14 THE COURT: WITH A U7?
135 THE WITNESS: WITH A Us IF IT WAS APPROPRIATE.
16 BY MR. FORD:
17 R. SO THE BLANKS HERE ARE ACTUALLY ANSWERS. YOU SAY ITS
18 INCONSISTENT. IS THAT FAIR TO SAY, THEY RE NOT JUST EMPTY?
d 19 A. YES. IT’S IN ANSWER TO EACH SPECIFIC QUESTION THAT S THERE.
20 AND IT INDICATES THAT THE ANSWER IS THAT IT’S INCONSISTENT WITH
21 THE INFORMATION IN THE FILE THAT THAT HAPFENELD.
22 @. NOW, I NOTICE THAT THERE IS ON THE FOILS 49, 350, 51, THERE'S
23 SOME REFERENCE TO SPOUSE, AND PARAMOUR MORE, AND THOSE KINDS OF
24 THINGS.
23 IS THERE ANY KIND OF DEFINITIONS GIVEN THERE FOR
446
GATES - DIRECT
1 AMBIGUITY SITUATIONS AT ALL, DO YOU REMEMBER?
2 |A. YES, THERE WERE. IF WE CAN REFER BACK TQ THE INSTRUCTIONS.
3 | DB-43, ON PAGE 9, QUESTION 17, IN FACT, THERE‘S ONE INSTRUCTION
4 | THATS RELATED TO THE FOIL THAT WAS CODED IN THIS CASE, AND THAT
5 IS THE SECOND PARAGRAPH UNDER 17. WHERE IT SAYS. WHEN IT IS
& | STATED THAT THE LIVING ARRANGEMENT IS A COMMON LAW MARRIAGE
7 | CODE THIS AS LIVING WITH SPOUSE.
8 |@. IF TWO PEOPLE WERE JUST LIVING TOGETHER. BUT IT WAS UNCLEAR.
9 |OR WAS NOT STATED THEY WERE COMMON LAW, WOULD THAT BE CLASSIFIED
10 |AS SPOUSE OR NOT?
11 A. NO. IT WOULD ONLY BE CLASSIFIED 30 IF IT WAS STATED THAT THE
12 |LIVING ARRANGEMENT WAS A COMMON LAW.
13 |@. IS THAT IN THE INSTRUCTIONS ALSO?
14 A. THAT IS IN THE INSTRUCTIONS. IT SAYS WHEN IT IS STATED THAT
15 |THE LIVING ARRANGEMENT --
16 |@. THEN UP ABOVE THAT. IS THAT A PARAGRAPH DIRECTLY ABOVE THAT,
17 |WHERE IT’S STATED. DOES THAT STATE THE OTHER RULE YOU JUST
18 |MENTIONED. WITH REGARD TO LIVING TOGETHER SITUATIONS?
% 19 |A. YES, IT DOES.
20 @. LET’S MOVE ON TO THE NEXT PAGE OF THE QUESTIONNAIRE. PAGE 57?
21 A. YES. |
22 Q. OKAY. OCCUPATIONAL SKILL OF THE DEFENDANT. CODED HERE ON MY |
23 COPY, 11.
24 WHAT DOES THAT MEAN?
25 A. THAT’S WHERE YOU CODE THE OCCUPATIONAL SKILL OF THE
GATES - DIRECT
1 DEFENDANT. AND WHAT‘S ENTERED HERE IS 11, WHICH MEANS THAT THIS
2 DEFENDANT WAS A BLUE COLLAR WORKER. AND BLUE COLLAR WORKER IS
DESCRIBED RIGHT THERE ON THE QUESTIONNAIRE. AND I BELIEVE IT’S Gl
4 ALSO DESCRIBED IN THE INSTRUCTIONS, TOO.
in
@. NOW, I NOTICE ON THE BOTTOM OF QUESTION 18, THERE'S A PART
b 2. IN THIS CASE, THERE’S NO, NOTHING FILLED QUT THERE.
7 CAN YOU EXPLAIN HOW THAT PART WORKS?
8 A. YES.
4 THE DESIGN OF THE QUESTIONNAIRE WAS SO THAT YOU
10 WOULDN’T LOSE ANY INFORMATION THAT WAS IN THE FILE. SO THERE
11 WERE SOME CASES WHERE A SPECIFY OCCUPATION WASN’T PRECISELY
12 STATED IN THE, IN THE FILE. BUT THERE WAS MAYBE GENERAL
13 CATEGORY OF OCCUPATIONS SUGGESTED BY THE FILE.
14 FOR EXAMPLE. IF. IN SEVERAL PLACES IT LISTED. IT LISTED
15 THAT THE DEFENDANT’S WORK WAGE WAS A DOLLAR FIFTY AN HOUR OR
16 SOMETHING LIKE THAT, FROM THAT YOU WOULD BE ABLE TO INFER THAT
37 THAT PERSON WASN’T IN A PROFESSIONAL OR MANAGERIAL CAPACITY.
18 SO WHAT THE SECOND PART OF THAT DID. AFFORDED YOU, WAS
19 THE OPPORTUNITY TO. TO MAINTAIN WHATEVER INFORMATION WAS IN THE |
20 FILE ABOUT THAT DEFENDANTS WORK HISTORY. |
21 J. NOW, I NOTICE ON PART 2, THE CODING THERE AGAIN IS THE FORM
22 OF 1, EXPRESSLY STATED IN FILE, 2, SUGGESTED. BLANK,
23 INCONSISTENT, AND U, UNABLE TO CLASSIFY. SO THERE COULD BE EVEN
24 MORE VARIABLES WITHIN THOSE KIND OF SITUATIONS?
23 A. YES.
443
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po
e ANOTHER EXAMPLE MIGHT BE. IF YOU LOOK AT THE CATEGORY
B, WHERE IT SAYS, LAW ENFORCEMENT. AND MILITARY, IT’S POSSIBLE
THAT THATS, THAT’S WHAT WAS SUGGESTED BY THE FILE, THAT THIS
PERSON, OR MIGHT EVEN HAVE BEEN SPECIFICALLY STATED, THIS PERSON
WAS INVOLVED IN LAW ENFORCEMENT OR SOMETHING LIKE THAT. AND YOU
COULDN’T CODE 5S, &, OR 7 BECAUSE IT DIDN'T EXACTLY FIT. 30
WHAT YOU WOULD DO. YOU WOULD CODE A 27 UP TO FOIL &1. AND THEN
GO DOWN TO PART 2 AND CODE EXPRESSLY STATED UNDER CATEGORY B.
Q. I NOTICE THESE, ON THIS ONE, THEY RE BLANK, WHICH WOULD BE
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THOSE INSTRUCTIONS.
12 A. WELL, IF YOU ANSWER PART A, THEN IT’S NOT NECESSARY TO
13 ANSWER PART 2. YOU JUST GO ON TO THE NEXT QUESTION.
14 R. THAT’S STATED ON THE PAGE?
'A. NO. THAT’S STATED, RIGHT ON THE PAGE. AND IS STATED IN THE
16 INSTRUCTIONS.
17 @. MOVE ONTO PAGE 6 OF THE QUESTIONNAIRE.
18 TOP LINE“S EMPLOYMENT STATUS: SEEM TO BE TEN VARIABLES
¥ 19 AND A "U" FOR UNKNOWN.
20 ANYTHING TECHNICAL ABOUT THAT?
21 A. NOTHING SPECIAL ABOUT IT. IT“S PRETTY SELF-EVIDENT. YOU
22 CAN CODE WHETHER OR NOT HE WAS EMPLOYED FULLTIME, PART-TIME. YOU |
23 KNEW HE WAS EMPLOYED BUT YOU‘RE NOT SURE WHETHER IT WAS FULL OR
24 PART-TIME, ET CETERA.
23 @R. I.@. LET-S 00 DOWN TO THE CRIMINAL RECORD SECTION. JUST
449
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1 BELOW THE “DEFENDANT’S I.Q."
2 CAN YOU EXPLAIN, I GUESS THE NEXT THREE OR FOUR
3 QUESTIONS DEAL WITH NUMBER OF PRIOR FELONY ARRESTS. RELIABILITY
OF THIS ANSWER, NUMBER OF PRIOR MISDEMEANOR ARRESTS, AND
RELIABILITY OF THIS ANSWER.
CAN YOU EXPLAIN TO THE COURT WHAT. HOW THAT WAS USED?
A. YES.
WHAT WE WANTED WAS A RELIABILITY RATING OF THE
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OFFENDERS PRIOR CRIMINAL RECORD, BECAUSE THESE FILES WERE OFTEN
10 SO HARD TO INTERPRET. S50 WHAT WE DID, IF YOU LOOK AT QUESTION
11 NUMBER 21. IS WE HAD FOUR CODES THERE:
12 FILE COMPLETE - EXHAUSTIVE LIST: FILE
13 INCOMPLETE — LIST RELIABLE; FILE INCOMPLETE — LIST UNRELIABLE;
14 OR,» U, UNABLE TO MAKE A JUDGMENT.
13 AND A "U" WOULD APPLY ONLY IF THE FILE WAS INCOMPLETE,
16 AND YOU COULDN’T JUDGE WHETHER IT WAS RELIABLE OR UNRELIABLE.
17 @. OKAY. NOW THIS ONE IS CODED A "2", FILE INCOMPLETE - LIST
18 RELIABLE.
19 CAN YOU EXPLAIN HOW THAT WORKS?
20 A. YES. THAT COULD BE FOR A COUFLE OF REASONS.
21 "FIRST LET ME JUST DESCRIBE WHAT A COMPLETE LIST IS. A
22 | COMPLETE LIST MEANS YOU WOULD HAVE THE F.B.I. REPORT, YOU WOULD |
23 HAVE THE LOCAL CRIMINAL HISTORY OF THE OFFENDER, AND THEN YOU
24 WOULD HAVE THE SELF REFORT BY THE OFFENDER OF HIS CRIMINAL
25 HISTORY.
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IF YOIJ HAD ALL 3 OF THOSE THINGS. YOU WOULD ENTER A "1"
THERE. YOU HAD THE EXHAUSTIVE LIST. THERE WERE NO BETTER
SOURCES OF INFORMATION.
IF YOU DIDN’T HAVE EITHER ONE OF THOSE THREE THINGS,
THERE WAS A PRESUMPTION THAT THE LIST WAS UNRELIABLE.
NOW. A WAY TO OVERCOME THAT PRESUMPTION WAS IF IN THE
CASE OF FELONY ARRESTS. YOU HAD AN F.B.I. REPORT. WELL, THAT
WAS REALLY OUR MOST RELIABLE SOURCE FOR FELONY ARRESTS. SO YOU
WOULD CODE A "2" THAT THE LIST WAS RELIABLE, EVEN THOUGH IT WAS
INCOMPLETE FOR FELONY ARRESTS, AS LONG AS THERE WAS AN F.B.I.
RAP SHEET.
ANOTHER WAY YOU COULD OVERCOME THAT PRESUMPTION IS IF
THERE WAS A STATEMENT. FOR EXAMPLE, BY A SHERIFF IN THE FILE.
THAT SAYS I“VE KNOWN THIS DEFENDANT ALL HIS LIFE, HE HAS NEVER
BEEN IN ANY TROUBLE BEFORE, HE“S NEVER HAD ANY ARRESTS. OR
THINGS LIKE THAT, SO YOU MIGHT NOT HAVE A COMPLETE FILE: BUT
BASED ON THAT STATEMENT, YOU WOULD CODE NUMBER “2," EVEN THOUGH
YOUR FILE WAS INCOMPLETE. THE WAS RELIABLE.
@. IS THAT ALL SET OUT IN THE INSTRUCTIONS IN DB-437
A. YES, IT IS.
RA. IS THAT, NUMBER 21 IS ON PAGE 107
A. THAT'S RIGHT.
2. MISDEMEANORS THEN WORK THE SAME WAY, I TAKE IT, EXCEPT WITH
THE, SOMETHING ABOUT THE F.B.I. REPORT? WAS A LITTLE DIFFERENCE
IN THE WAY MISDEMEANORS WERE TREATED?
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A. YES. IN THE CASE OF MISDEMEANORS. AN F.B.I. REPORT WOULDN®T
OVERCOME THE PRESUMPTION OF AN UNRELIABLE LIST, BECAUSE IT WAS
OUR EXPERIENCE THAT MISDEMEANORS WERE VERY OFTEN NOT REFORTED ON
THE F.B.I. RAP SHEET. SO THAT TO REBUT THAT PRESUMPTION. YOU
WOULD HAVE TO HAVE A COMPLETE LOCAL CRIMINAL HISTORY OF THE
OFFENDER.
@. NOW, MOVING DOWN TQ -- THE NEXT SEVERAL NUMBERS ARE CODED
"N" HERE, DATES, AND AGES OF THE DEFENDANT AT THE TIME OF
ARREST, THOSE KINDS OF THINGS. ANYTHING TECHNICAL ABOUT THOSE?
A. NO: NOTHING, NOTHING TECHNICAL.
@. S0 COULD WE GO TO PAGE 7. TOTAL NUMBER OF YEARS |
INCARCERATED. APPARENTLY A LETTER CODE OR AN "N" HERE FOR NOT
APPLICABLE.
28A; EITHER ONE OF THOSE THINGS HAVE ANY TECHNICAL
NATURE TO THEM? ARE THEY PRETTY MUCH SELF-EXPLANATORY?
A. THEY'RE SELF-EXPLANATORY. THE ONLY THING IS THERES A
SFECIAL CODE WHERE IF YOU DON‘T KNOW THE EXACT NUMBER OF YEARS,
THEN YOU HAVE THE OPPORTUNITY TO ENTER A LETTER WHICH REPRESENTS
A RANGE OF YEARS.
@. THAT’S UNDER. THAT“S THE LETTERS THAT ARE LISTED UNDER 287?
A. 28.
@. 29 THEN, DID THE HOMICIDE OCCUR WHEN THE DEFENDANT WAS
ENGAGED IN THE COMMISSION OF ANOTHER OFFENSE, WHETHER OR NOT THE
DEFENDANT WAS CHARGED AND CONVICTED OF THE OFFENSE.
HERE IT“S CODED "1," NO CONTEMPORANEOUS OFFENSE.
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WHAT SOURCE DID YOU HAVE FOR DEFINING WHAT OTHER
OFFENSES MIGHT BE GOING ON? DID YOU HAVE ANY SOURCE MATERIAL
AVAILABLE TO YOU TO MAKE THAT DETERMINATION OF WHETHER THE
ELEMENTS OF ANOTHER OFFENSE WERE POTENTIALLY AVAILABLE. IF IT
HAD NOT BEEN CHARGED?
IN OTHER WORDS, -——
A. YES. WE HAD THE CRIMINAL INVESTIGATIVE REPORT IN THE FILE.
IF THATS WHAT YOU MEAN.
Q. WELL. LET ME START OUT, PERHAPS, WITH THESE DEFINITIONS. ARME]
ROBBERY. RAPE, ET CETERA, I WOULD ASSUME, WHOSE LAW WOULD THAT
BE DEFINED BY?
A. OH. I SEE. THAT’S DEFINED BY GEORGIA LAW, AND RIGHT IN THE
PAROLE HEARING ROOM, THERE IS A SMALL LIBRARY THERE, AND IN THAT
LIBRARY WAS A CURRENT COPY OF THE GEORGIA CODE.
@. OTHER THAN THAT LEGAL JUDGMENT THAT WAS MADE BY, I GUESS.
LAW STUDENTS THERE AND YOURSELF, BASED ON THE READING OF THE
GEORGIA CODE WITH REGARD TO THESE AND THE REST OF THE FILE. IF
THERE WAS A CHARGE OF A CONTEMPORANEOUS OFFENSE WOULD THAT
ALWAYS BE CODED OR DID YOU SECOND GUESS THE PROSECUTOR ON WHETHER OR NOT THE ELEMENTS WERE REALLY THERE?
IF THE OFFENSE WAS ACTUALLY CHARGED, WOULD THAT ALWAYS |
BE CODED?
A. DOH, YES, IF IT WERE CHARGED, IT WOULD BE CODED.
THE CONVERSE ISN‘T TRUE. IF IT WASN'T CHARGED. THAT
DOESN'T MEAN IT WOULDN“T BE CODED. IF ONE OF THESE THINGS
4353
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CLEARLY OCCURRED FROM THE FACTS, WE WOULD CODE IT IN THIS
QUESTION, REGARDLESS OF WHETHER IT WAS CHARGED.
@. OKAY. ARE THERE ANY SPECIFIC INSTRUCTIONS IN DB-43 WITH
REGARD TQ NUMBER 297
A. YES, THERE ARE. THEY ARE AT PAGE 11.
@. DOWN ON THE BOTTOM. WHERE IT DISCUSSES WHAT’S MEANT BY
CONTEMPORANEOUS WITH THE HOMICIDE?
A. YES.
@. IS THAT ONE OF THOSE THINGS THAT WAS DISCUSSED, WRITTEN OUT,
AND KEPT AMONG THE CODERS?
A. THAT’S CORRECT.
fl. MOVE TO AGE 87
THE COURT: WAIT JUST A SECOND.
MR. FORD: I“M SORRY.
THE COURT: ALL RIGHT.
THE WITNESS: LET ME JUST EXPLAIN SOMETHING.
QUESTION NUMBER 10 INCLUDES THE COMPLETE HISTORY CF
| WHAT THE PROSECUTOR CHARGED, AND WHAT HAPPENED WITH THOSE
CHARGES IN THE COURSE OF THE PROSECUTION OF THE CASE.
QUESTION 29 WAS ASKING A DIFFERENT QUESTION.
BY MR. FORD:
QA. IF THERE WAS AN ACTUAL CHARGE, THEN IT WOULD OCCUR BOTH
PLACES, IS THAT RIGHT?
A. YES.
R. MOVE ON TO PAGE 8 OF THE RUESTIONNAIRE. THIS IS IN
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DEFENDANT“S PRIOR RECORD, IS THAT RIGHT. NUMBER OF FRIOR
CONVICTIONS AND SENTENCES?
A. YES, IT IS. IT“S BLANK.
@. ON -—- PERHAPS WE CAN MOVE -- LOOK ON THIS ONE.
MR. FORD: YOUR HONOR, ON THIS ONE AND A FEW OF THE
OTHERS. THE SECOND NUMBER, NUMBER B, HAS I THINK SOME BETTER
EXAMPLES, AND WE EXPECT TO DISCUSS THOSE LATER IF THE COURT
PERMITS.
BY MR. FORD:
@. SO COULD WE MOVE ONTO NUMBER 9 AT THIS POINT, PACE #, IM
SORRY.
CHARACTERISTICS OF VICTIM NUMBER 1. SEEMS TD HAVE
NAME, SEX, RACE. I NOTICE THAT ON NUMBER 1, I“M SORRY, FOIL
111, QUESTION 37. VICTIMS AGE, SOMETHING SEEMS TO BE CROSSED
OUT. CAN YOU TELL WHAT THAT IS?
A. YES. AS IN ONE OF THE OTHER RUESTIONS I DESCRIBED WHERE YOU
DON’T KNOW A SPECIFIC NUMBER, YOU CAN ENTER A LETTER THAT
REPRESENTS A RANGE, AND IT APPEARS THAT THE CODER HAD ENTERED A
LETTER "C" THAT THAT PERSON WAS A YOUNG ADULT, FROM 20 TO 34,
AND I PRESUME THAT PROFESSOR BALDUS FOUND OUT MORE ACCURATE
INFORMATION FROM THE DEPARTMENT OF VITAL STATISTICS, AND ENTERED
THE ACTUAL NUMBER.
@. THEN MOVING TO PAGE 10 OF THE QUESTIONNAIRE. OCCUPATIONAL
SKILL OF THE VICTIM.
A. THE FORMAT OF THAT QUESTION IS EXACTLY LIKE THE THE FORMAT
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GATES — DIRECT
OF THE QUESTION REGARDING THE OCCUPATIONAL SKILL OF THE
DEFENDANT.
@. I NOTICE A "U" IS CODED HERE. SO WHAT DOES THAT MEAN?
A. IT MEANS THERE WAS NO INFORMATION AT ALL ABOUT THE
OCCUPATION OF THE VICTIM.
AND THE “U" SPECIFICALLY MEANS HERE THAT. THAT YOU SKIP
TO QUESTION 39.
A. 31 NOTICE —~
A. SKIP TO QUESTION 40.
@. NOW, I NOTICE THAT RIGHT ABOVE "uU", THERE-S A "27" JUST, I
GUESS, AS THERE WAS BEFORE, SO THERE'S A SLIGHT SHADE OF
DIFFERENCE BETWEEN THOSE KINDS OF UNKNOWNS. UNKNOWN WHETHER THE
VICTIM HAD EVER WORKED AND UNKNOWN WHAT THE VICTIM’S OCCUPATION
WAS, BUT APPARENTLY KNOWN THAT THE VICTIM WORKED, IS THAT
CORRECT?
A. THAT”S RIGHT. 27 IS THAT THE VICTIM HAS WORKED. BUT THE
PRECISE SKILL IS UNKNOWN. AND THE "U" REPRESENTS THAT IT’S
UNKNOWN WHETHER THE VICTIM HAS EVER WORKED AT ALL.
@. I TAKE IT THROUGHOUT THESE QUESTIONNAIRES, IN A LOT OF THESE
QUESTIONS, THE. "U" DOESN‘T JUST MEAN UNKNOWN, BUT IT’S MORE
PRECISELY DEFINED IN EACH QUESTION AND SOMETIMES SLIGHTLY
DIFFERENTLY DEFINED FOR EACH QUESTION, IS THAT WHAT WAS
FOLLOWED?
A. THATS WHAT WAS FOLLOWED, AND YOURE RIGHT.
@. ON PAGE NUMBER 11, THEN, THE EMPLOYMENT STATUS OF THE
GATES - DIRECT
VICTIM. AGAIN, I GUESS THATS THE SAME LIST WE THOUGHT WAS
PRETTY MUCH SELF-EXFLANATORY THERE?
A. UH HUH.
@. PAGE -- NUMBER 40, ON PAGE 11, VICTIM’S STATUS AND
RELATIONSHIP TO THE DEFENDANT. HERE. MY COPY IS PRETTY FOGGY.
IT APPEARS TO SAY "09", FRIEND OR EX?
A. YES. THAT INDICATES THAT THE RELATIONSHIP WAS FRIEND OR EX.
AND LIKEWISE IN THIS QUESTION, YOU HAVE THE OPPORTUNITY IF YOU
DON“T KNOW THE PRECISE RELATIONSHIP TO ENTER "22" AT FOIL NUMBER
121, AND MOVE TO PART 2 AND ENTER A SUGGESTED CATEGORY.
@G. AND AGAIN ITS THE FORM WHERE THE CATEGORY COULD BE
EXPRESSLY STATED BUT NOT PRECISELY STATED ENOUGH TO GET INTO
PART 1 OR IT COULD BE JUST SUGGESTED, THAT SAME SORT OF THING WE
RAN INTO BEFORE?
A. EXACTLY.
@. AND WITH REGARD TO SOME OF THESE TERMS. OTHER ACRUAINTANCE,
CASUAL ACQUAINTANCE, DEFENDANT KNOWN TO VICTIM, VICTIM KNOWN TO
DEFENDANT, THOSE KINDS OF THINGS. DO YOU RECALL IF THERE WERE
ANY DEFINITIONS OF THOSE IN THE INSTRUCTIONS AS WELL?
A. YES, THOSE ARE, THOSE ARE DESCRIBED. DEFINED ON PAGES 12 AND
13.
@. THATS OF DB-437
THE COURT: PAGES WHAT? 12 AND 137?
THE WITNESS: THAT”S RIGHT.
BY MR. FORD:
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Q. 1S THAT WHERE IT STARTS OFF AT THE BOTTOM OF 12, FOIL 11 AND
GOES ON TO FOIL 13, 14, 18, 197?
A. THATS CORRECT. SIR.
@. MOVE TO PAGE 12 THEN?
THE COURT: WAIT A MINUTE.
MR. FORD: SORRY.
THE WITNESS: THIS QUESTION DESCRIBES —-
MR. FORD: EXCUSE ME.
THE COURT: LOOK AT THE SUMMARY AND I WANT TO ASK YOU A
QUESTION ABOUT NUMBER 40. FOIL 121.
THE WITNESS: OKAY.
THE COURT: WOULD YOU INFER, I REALIZE ALL YOU CAN DEAL
WITH IS A SUMMARY. THAT THIS IS PROPERLY CODED FROM THE SUMMARY?
THE WITNESS: THAT THE VICTIM/S STATUS AND RELATION TO
THE DEFENDANT WAS FRIEND?
THE COURT: UH HUH.
THE WITNESS: YES. THE LAST SENTENCE OF THE FIRST
PARAGRAPH SAYS THE VICTIM WAS A WHITE FEMALE. AND THE LAST PART
OF THAT SENTENCE SAYS, A FRIEND OF THE DEFENDANTS.
THE COURT: ALL RIGHT. OKAY. I SEE WHAT MY PROBLEM IS.
ALL RIGHT, GO AHEAD.
BY MR. FORD:
{8 MOVE TO PAGE 12 NOW?
A. OH, YES, I WAS ABOUT TO DESCRIBE QUESTION 41, WHICH IS,
WHICH DESCRIBES WHERE THE HOMICIDE OCCURRED. AND THERE-S 28
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1 POSSIBILITIES, AND THIS IS ALSO AN IMPROVEMENT OVER THE OTHER
2 QUESTIONNAIRE, AS ARE ALMOST EVERY QUESTION THAT WE“VE DISCUSSED
3 THIS MORNING.
4 @. IF I RECALL. THERE WAS SOMETHING SIMILAR TO THIS ON THE
STUDY NUMBER 1. WITH THE DIFFERENT PLACES THAT THE CRIME COULD Ua
6 HAVE OCCURRED?
7 A. IT’S SIMILAR. IT DOESN’T GIVE YOU AS MANY POSSIBILITIES,
a8 AND ADDITIONALLY. IT DOESN“T HAVE PART 2 WHICH ALLOWS YOU TO NOT
9 ONLY ANSWER WHERE THE HOMICIDE OCCURRED, BUT IF IT WAS IN A |
10 BUILDING OR SOMETHING LIKE THAT, IT ALLOWS YOU TO DESCRIBE HOW
11 THE DEFENDANT GAINED ENTRY TO THAT PLACE.
12 @. HERE IT INDICATES "3" WHICH WOULD BE INITIAL ENTRY WITH
13 PERMISSION?
14 A. THAT’S RIGHT.
15 THE COURT: THIS IS SHOWN AS COMMITTED IN OTHER
16 RESIDENCE. WOULD YOU COMMENT ON THE POSSIBILITY OF USING THAT
17 CODING VERSUS NUMBER 47
18 THE WITNESS: ACTUALLY, IF I MIGHT ADD, I THINK THE
tt 19 PROPER CODE IN THIS CASE IS NUMBER 3.
20 THE COURT: NO, RESIDENCE OF CO-PERPETRATOR.
21 THE WITNESS: THATS, BASED ON THE SUMMARY THAT S THE
22 WAY I WOULD CODE IT. I WOULD FEEL ILL AT EASE TO SAY IT WAS AN |
23 INCORRECT CODE, BECAUSE I DON'T HAVE THE AMBIGUITY SECTION AND
24 THAT MIGHT HAVE BEEN DISCUSSED THERE.
25 THE COURT: ALL RIGHT.
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MR. FORD: I DON’T KNOW, PERHAPS, YOUR HONOR, I DONT
KNOW IF WE TOOK ENOUGH TIME, I MAY HAVE FORGOTTEN TO REVIEW THE
SUMMARY. IT APPEARS YOUR HONOR HAS BEEN ABLE TO DO THAT. OR. I
DON’T KNOW IF THE COURT WANTS TO TAKE THE TIME TO GO BACK OVER
1Te 1 JUST —=
THE COURT: WHATS YOUR RUESTION? I“VE READ THE
SUMMARY. WHAT’S YOUR QUESTION?
MR. FORD: THAT WAS MY QUESTION, YOUR HONOR.
THE COURT: ALL BUT THE FIRST PARAGRAPH. WHICH THE
WITNESS POINTED OUT TO ME I HAD NOT READ.
MR. FORD: I THINK I WAS JUST NOTICING YOUR HONOR
APPEARED TO HAVE AND I HAD FORGOTTEN TO PROVIDE THE TIME. SO
THANK YOU, VERY MUCH.
BY MR. FORD:
@. PAGE 137
A. UH HUH.
@. NUMBER 43, THE DEFENDANTS MOTIVE. HERE WE HAVE WRITTEN IN
| HANDWRITTEN, APPARENTLY ON MY COPY, ENCODED IN, "INSURANCE."
NUMBER "1."
A. THE REASON THAT-S HANDWRITTEN IN IS BECAUSE IF YOU NOTICE ON
PAGE 1 OF THE GUESTIONNAIRE, IT DOESN“T HAVE THE SUP, AFTER THE
DATE, UNDER GEORGIA PAROLE BOARD RUESTIONNAIRE, AND WHAT
HAPPENED IS, PROFESSOR BALDUS DESCRIBED. WE PRINTED MANY MANY
QUESTIONNAIRES AND NEGLECTED TQ PUT THESE FOILS IN THEM. 50 THE
CODERS JUST WROTE THOSE FOILS IN EACH TIME.
a ——— S— —————. ——— S—— —— —— ee —— —— — S————— ———— ————— ————— ————— — ——— ——
4450
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THERES ACTUALLY ANOTHER ONE, MITIGATING CIRCUMSTANCES.
fe
2 I THINK IT“S REGARDING THE VICTIM‘S BEHAVIOR, WHERE "BAD
3 REPUTATION" IS WRITTEN IN.
4 THE COURT: I NOTICE ON THE ONE I HAVE YOU“VE GOT A
3 142A, INSURANCE, AND A 142B, RACIAL.
pd 6 AND I TAKE IT THAT WASNT THE MOTIVE IN THIS CASE. SO
7 THAT WOULD INDICATE TO ME THAT THE CODER HAD MADE THESE ENTRIES
3 BEFORE, MADE THE CORRECTIONS BEFORE HE DEALT WITH THE FORM. IS
by THAT WHAT WAS GOING ON?
10 THE WITNESS: NO. THEY WOULD DO THIS AS THEY CODED IT.
11 WHEN THEY GOT TO THIS QUESTION, THEY WOULD WRITE IN "INSURANCE"
12 AND WRITE IN "RACIAL."
13 THE COURT: EVEN IF IT WAS NOT APPLICABLE. THEY WROTE
14 IN THE w=
13 THE WITNESS: OH, EVEN IF IT WASN’T APPLICABLE. JUST
146 SO THAT SOMEONE WOULD KNOW THAT THEY HAD CONSIDERED THOSE AS
17 POSSIBILITIES.
18 BY MR. FORD:
pe 12 | A. LATER ON, YOU SAID THERE WAS A SUP QUESTIONNAIRE. DID THAT
20 ACTUALLY HAVE THOSE TYPED IN THEN?
21 A. THAT HAD THOSE TYFED IN.
22 MR. FORD: AGAIN. YOUR HONOR, THIS IS ONE OF THOSE THAT
23 I THINK ON THE STRICKLAND CASE MIGHT BE A LITTLE EASIER TO GET
24 THE DETAILS OF.
23 AND PERHAPS 44 AS WELL, SINCE THERE’S NOTHING DOWN AT
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ALL. SPECIAL PRECIPITATING EVENTS.
BY MR. FORD:
@. THE. PAGE 14.
A. CAN I SAY ONE THING ABOUT THAT?
QR. SURE?
A. I JUST WANT TO POINT OUT WHAT ALL THE BLANKS ON THOSE PAGES
MEAN. THOSE ARE SPECIFIC ANSWERS TO EACH ONE OF THOSE
STATEMENTS, AND THEY ALL MEAN THAT THAT ANSWER IS INCONSISTENT
WITH THE INFORMATION IN THE FILE. THANK YOU.
@. 14, METHOD OF KILLING. AT THE TOP, PAGE —-— NUMBER 45 AN PAGE
14.
THIS I BELIEVE, ALS0, RESEMBLES SOMETHING THAT WAS ON
| THE FIRST STUDY, DOES IT NOT?
A. YES. THIS IS ONE OF THE FEW QUESTIONS THAT’ SZ VERY MUCH LIKE
THE QUESTION IN THE FIRST STUDY. I BELIEVE THIS HAS MORE
POSSIBLE ENTRIES. OTHER THAN THAT. IT’S THE SAME.
@. I NOTICE THERE~S 3 FOILS, IN THIS CAZE, THEY FILLED THEM UP.
WHAT IF THERE WERE MORE, WHAT IF THERE WAS ACTUALLY A FOURTH
METHOD USED, IF THAT'S POSSIBLE?
A. IF THERE WAS A FOURTH METHOD USED. THEN THAT WOULD BE
CLEARLY INDICATED IN THE SUMMARY THAT THERE WAS ANOTHER METHOD
AND THERE WAS NO ROOM TO CODE THAT IN THE QUESTIONNAIRE FROPER?
THE COURT: SO WHAT DID YOU DO? IF THERE HAD BEEN A
FOURTH METHOD, HOW WOULD THAT HAVE GOTTEN INTQ THE DATA BASE?
THE WITNESS: THAT COULD HAVE ONLY GOTTEN INTO DATA
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BASE BY A REVIEW OF THE SUMMARY BY PROFESSOR BALDUS.
THE COURT: LET ME ASK YOU THIS: IN THIS CASE, IT’S I
GUESS, CLEAR BEYOND PREADVENTURE, I DON’T KNOW WHETHER I CAN SAY
IT THAT STRONGLY OR NOT. THAT NEITHER THE STRIKING ON THE HEAD
WITH THE CRESCENT WRENCH NOR THE REDUCING THE PERSON TO
UNCONSCIOUSNESS BY SMOTHERING WAS THE METHOD OF KILLING IN THE
LITERAL SENSE OF THE WORD: IT WAS THE DROWNING. FROM THE
SUMMARY. THAT WAS CLEARLY THE OPERATIVE ACT THAT CAUSED THE
KILLING.
WHAT PHILOSOPHY WAS BEHIND THE WAY YOU APPROACHED THIS?
I THINK YOU COULD ARGUE IT AROUND THE SGUARE. AND THIS IS WHAT
IM TRYING TO UNDERSTAND. CERTAINLY FOR A JURY TO BE
CONSIDERING MITIGATING FACTORS, I THINK THEY“RE GOING TO
PROBABLY REACT TO THE HITTING, THE SMOTHERING, THE DROWNING.
WHEREAS THE MEDICAL EXAMINER IS NOT GOING TO MENTION THOSE
THINGS AS BEING CAUSE OF DEATH.
WHAT PHILOSOPHICALLY WERE YOU TRYING TO GET HERE?
THE WITNESS: YOU’D HAVE TO ASK PROFESSOR BALDUS ABOUT
THAT.
THE COURT: WELL, WHAT DID YOU TELL THE CODERS?
THE WITNESS: I WOULD HAVE TO REFER TO THE INSTRUCTIONS
IN THIS QUESTION FIRST.
THE COURT: BE MY GUEST.
THE WITNESS: THANK YOU.
MR. FORD: PAGE 14.
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THE WITNESS: ITS ON PAGE 14 BUT IT”S NOT CLEAR. YOUR
HONOR, IT“S SIMPLY BEEN TOO LONG FOR ME TQ RECALL THAT. WHAT I
WOULD HAVE TO DO IS LOOK AT SEVERAL OF THE SUMMARIES WHERE THERE
WERE MULTIPLE CODES TONIGHT, AND TQ DECIDE WHETHER OR NOT THIS
CODING WAS THE PROPER WAY TO DO IT. I JUST DONT RECALL.
BY MR. FORD:
Q. DO YOU RECALL WHETHER, EXCUSE ME, DO YOU RECALL WHETHER THE
CODING TECHNIQUE IN THAT REGARD CHANGED BETWEEN THE TWG STUDIES?
I KNOW SOMETIMES IT MAY BE HARD TO KEEP THEM STRAIGHT, BUT WAS,
FOR INSTANCE IN THE HARDY CASE, WASN’T THERE A SIMILAR
SITUATION, WHERE THERE WAS MULTIPLE MEANS USED. BUT ONLY ONE
ACTUAL FINAL CAUSE OF DEATH?
A. YES, THERE WAS IN THAT CASE. THE RATIONALE OF THIS
QUESTIONNAIRE WAS TQ REPRESENT THE INFORMATION THAT WAS IN THE
FILE. AND FOR, FOR THESE THINGS THAT HAVE BEEN LISTED. CODE
NUMBER 4, WHICH IS BEATEN WITH A BLUNT OBJECT, AND CODE NUMBER
$, SMOTHERED. THOSE ARE AGGRAVATING FEATURES OF A CRIME THAT I
THINK CAN BE PICKED UP IN OTHER PLACES IN THE QUESTIONNAIRE. SO
MY INSTINCT RIGHT NOW IS THAT THE WAY HE SHOULD HAVE CODED
QUESTION NUMBER 45 IS TO ENTER THE METHOD OF KILLING THAT
ACTUALLY LED OR CONTRIBUTED TO THE CAUSE OF DEATH OF THE VICTIM.
THATS MY RECOLLECTION. BUT AS I SAY, WHAT I WOULD HAVE TO DO
IS REVIEW SOME OF THE FILES TO SEE IF THAT RULE WERE
CONSISTENTLY FOLLOWED.
@. AT LEAST WITH REGARD TO THAT FILE. IT AFPEARS THAT EACH
4564
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1 ASSAULTIVE ACT WAS CODED?
2 A. THAT’S CORRECT.
3 @. $0, IS IT POSSIBLE YOUR RECOLLECTION ISN‘T AS GOOD NOW, OR
3 ISN“T PERFECT ON THAT SUBJECT NOW, THEN?
- A. OH, ABSOLUTELY. THAT”S WHY I SAY I WOULD HAVE TO REVIEW THE
Re 6 CODING.
7 ©. MOVE DOWN TO 46. SEE SPECIAL AGGRAVATING CIRCUMSTANCES?
8 NOW, IS THIS SOMETHING THAT IS, ANOTHER ONE WHERE
9 THERE’S DIFFERENT ALTERNATIVES IN TERMS OF WHAT CAN BE FILLED
10 IN.
11 A. THAT’S RIGHT. EACH QUESTION CAN BE SPECIFICALLY ANSWERED
12 AND THERE“S MORE POSSIBLE WAYS OF ANSWERING IT.
13 |@. HERE WE HAVE DEFENSELESS BECAUSE OF GROSS PHYSICAL
14 DISPARITY?
15 A. THAT‘S RIGHT. THAT’S CODED EXPRESSLY STATED IN THE FILE,
14 AND IF YOU READ ON. IT SAYS THAT THE DEFENDANT IS MUCH LARGER OR
17 THERE“S TWO OR MORE PEOPLE AGAINST ONE. WHICH IS CONSISTENT WITH
18 THE FACTS OF THIS CASE.
w 12 @. PERHAPS WE CAN TALK ABOUT SOME OF THOSE OTHERS IN THE
20 STRICKLAND, CASE TOO, WHICH I THINK HAS SOME MORE THERE.
21 MOVE ON TO PAGE 15, SPECIAL AGGRAVATING FEATURES OF THE |
22 OFFENSE. WE HAVE FOUR CODED.
23 A. WHAT”S CODED HERE IS 9A, OTHER MODE OF LETHAL OR PAINFUL
24 ATTACK. AND THAT CODING IS, IS DESCRIBED IN THE INSTRUCTIONS
23 AND WHAT IT DOES IS WHERE THE PRESENCE OF SEVERAL OF THE ABOVE
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FACTORS EXIST. OR, OR EVEN OTHERS THAT ARE NOT INCLUDED IN THE
QUESTIONNAIRE ABOVE, WHERE IT“S A MULTIPLE MOTIVE LETHAL ATTACK.
THEN YOU CODE 9A, INSTEAD OF THE SPECIFIC ONE.
@. IN THE INSTRUCTIONS, 43, WOULD THAT BE. I GUESS THAT'S WHERE
47 BEGINS?
A. YES, THAT’S CORRECT.
@. DOWN AT THE BOTTOM THERE, 9A. INCLUDES MULTIPLE MODES OF
ATTACK?
A. UH HUH.
R. AND TURNING TO THE NEXT PAGE, NUMBER 10 I NOTICE ON TURNING
THE NEXT PAGE. IM SORRY, OF THE INSTRUCTIONS, PAGE 18 OF THE
INSTRUCTIONS AT THE TOP, THERE-S A DISCUSSION OF, AFTER THE
NUMBER 10. IF THE POLICE REPORT SAYS THE SCENE WAS BLOODY OR THE
VICTIM WAS LYING IN A POOL OF BLOOD. ET CETERA, DO YOU FIND
THAT?
A. YES.
G. AND AGAIN THAT --
A. THAT’S A SPECIFIC INSTRUCTION OF THE WAY THAT YOU, THE WAY
THAT YOU CODE THE. THE VARIABLE "BLOODY."
QR. SO THAT WAS NOT JUDGMENT CALL OF WHETHER THE PERSON WHO WAS
CODING THOUGHT THIS WAS A PARTICULARLY AWFUL CRIME, OR SOMETHING
THAT HAD TO DO WITH THE APPEARANCE OF A WORD IN THE POLICE
REPORT OR SUMMARY?
A. THAT-S CORRECT. WELL, THE INSTRUCTIONS WERE THAT IF THE
FILE SPECIFICALLY SAID THAT IT WAS BLOODY THATS WHEN YOU WOULD
A ——— ——— —— —" —— — —— —— i ——
4466
GATES - DIRECT
1 CODE "BLOODY."
2 @. AND THE OTHER TWO THAT ARE CODED THERE. ATTEMPT TO DISPOSE
3 OF /CONCEAL BODY. AND LURING. AMBUSHING, LYING IN WAIT?
4 A. THOSE ARE CODED AND ARE CONSISTENT WITH MY READING OF THE
3 SUMMARY .
» b @. THE PART B DOWN THERE AT THE BOTTOM, WE HAVE SOME. I GUESS
7 THIS IS STILL UNDER THE SAME GENERAL CATEGORY?
A. OKAY. AND THE FORMAT OF THE QUESTION HAS CHANGED. AND YOU
w
@ CAN ANSWER EACH OF THESE QUESTIONS SPECIFICALLY.
10 Q. AND AGAIN HERE. WE HAVE SEVERAL, THE PLANNING, THE EXECUTION
11 STYLE HOMICIDE. VICTIM BEATEN BEFORE KILLING, VICTIM PLEADED FOR
12 LIFE, ALL MARKED "1", S50 APPARENTLY THAT WAS EXPRESSLY STATED?
13 A. THAT’S CORRECT.
14 @. AND ANY OF THOSE TERMS, DO YOU RECALL ANY INSTRUCTIONS?
135 A. I THINK THEY’RE ALL DEFINED IN THE INSTRUCTIONS.
16 THE COURT: HOW ABOUT 176A? SHOULDN'T THAT PROPERLY
17 HAVE BEEN CODED A "172%
18 THE WITNESS: WHAT WAS THE CONTEMPORANEQUS OFFENSE?
» 19 THE COURT: INTENT TO DEFRAUD THE INSURANCE COMPANY.
20 THE WITNESS: THIS ACTUALLY CAME UP.
21 THE COURT: ACTUALLY -- I SEE, I THINK I UNDERSTAND THE
22 LOGIC.
23 THE WITNESS: WE DISCUSSED THIS. THE CODERS. THERE WAS
24 A LOT OF INPUT DURING THIS WHOLE TRAINING FROCESS, AND THERE
23 WERE SIX PEOPLE, "WELL. WHAT ABOUT THIS." AND "WHAT ABOUT THAT."
4467
GATES — DIRECT
AND THAT CAME UP, AND PROFESSOR BALDUS JUST DECIDED THAT IN
THESE INSURANCE CASES, WE DID NOT WANT TO COLLECT THE
INFORMATION THAT THERE WAS AN INTENT TO DEFRAUD THE INSURANCE
COMPANY.
THE COURT: ALL RIGHT.
BY MR. FORD:
@. WOULD THESE OTHERS THAT ARE A LITTLE MORE AMORPHOUS.
PERHAPS, THAN JUST PERHAPS THE ORDINARY JARGON OR COMMON USAGE.
EXECUTION STYLE, HOMICIDE, VICTIM BEATEN BEFORE KILLING. VICTIM
PLEADED FOR LIFE, THOSE ON PAGE 19 OF THE INSTRUCTIONS?
A. OH, YES, THERE-‘S SPECIFIC DEFINITIONS FOR EACH ONE OF THOSE
THINGS.
@. MOVE ON THEN TO PAGE 146 OF THE FORM. SPECIAL AGGRAVATING
FEATURES OF THE OFFENSE SPECIFICALLY ATTRIBUTABLE TO THE
DEFENDANT.
AGAIN THIS IS ONE OF THE ONES WITH THE FOUR
ALTERNATIVES FOR EACH FOIL.
NOW I NOTICE HERE WE HAVE SOME "U-3" IN THAT SITUATION,
ON 183 AND 1347
A. THAT’S CORRECT. AND THAT WOULD INDICATE THAT THE CODER WAS
UNABLE TO CLASSIFY THAT AS 1, 2 OR OR BLANK.
THE COURT: THAT MEANS HE HAD SOME QUESTION BUT WHAT
THIS BRAGGING AS I THINK MAY APPEAR COULD HAVE BEEN BRAGGING, I
THINK IT SAYS HE TOLD FOUR OTHER PEOPLE ABOUT IT, IS THAT RIGHT?
YES. DEFENDANT TOLD AT LEAST FOUR OTHER PEOFLE OF THE
GATES - DIRECT
1 MURDER.
2 I‘M TRYING TO TRACK A THOUGHT FROCESS. HE COULD HAVE
3 THEREFORE BRAGGED ABOUT IT, WHICH WOULD UNDER 184 PERHAPS MEAN
4 AN EXPRESSION ON THE HOMICIDE: ON THE OTHER HAND, IT WOULD HAVE
5 BEEN AN EXPRESSION OF REMORSE. S0 THEREFORE HE COULD REALLY NOT
% é MAKE A JUDGMENT. THERE WAS SOME EVIDENCE THAT COULD BE
7 INTERPRETED EITHER WAY. AM I ACCURATELY TRACKING WHAT THE
3 THOUGHT PROCESS SHOULD HAVE BEEN?
? THE WITNESS: YOU'RE PROBABLY TRACKING WHAT THE
10 THOUGHT PROCESS WAS. WELL, THIS IS, THIS IS VERY CLOSE TO BEING
11 ON THE LINE. IN GENERAL. WHEN THERE WAS SOME EVIDENCE ABOUT
12 SOMETHING BUT IT WAS INCOMPLETE EVIDENCE, EVIDENCE POINTING IN A
13 CERTAIN DIRECTION, BUT IT JUST WASN’T ENOUGH TO SAY IT WAS
14 SUGGESTED BY THE FILE. WHAT THE CODER WAS INSTRUCTED TO DO WAS
135 RESOLVE THAT AMBIGUITY TO LEGITIMIZE THE SENTENCE THAT WAS
16 GIVEN.
37 50, IN OTHER WORDS, -—
18 THE COURT: IN A DEATH CASE, WE SHOULD HAVE RESOLVED
J 19 THE AMBIGUITY IN FAVOR OF SAYING THE DEFENDANT SHOWED NO REMORSE
20 AND EXPRESSED PLEASURE. THATS OBVIOUSLY NOT WHAT YOU MEAN.
21 THE WITNESS: I WOULDN“T GO SO FAR AS AS SAY EXPRESSED
oc FLEASURE.
23 BUT AS FAR AS SHOWING NO REMORSE, IT MIGHT BE
24 SUGGESTED. BUT GIVEN THE FACTS, AND THE WAY YOU INTERPRETED
25 THEM, THAT 3S THE WAY I WOULD HAVE CODED BOTH OF THOSE, UNKNOWN,
469
GATES - DIRECT
1 THAT YOU COULDN’T TELL BASED ON THAT. WHAT THE DEFENDANT WAS
DOING. [3
3 BY MR. FORD:
4 @. LET ME ASK ONE MORE QUESTION. GIVEN JUST THE SUMMARY THAT’S
THERE, THAT SAYS THE PERSON TOLD FOUR OTHER PEOPLE HE KILLED a
6 THEM, PERIOD, NO INDICATION OF ANY NUANCE THERE, IS THERE ANY
7 OTHER WAY THAT THAT REALLY COULD BE CODED? WOULD IT FIT A 1 OR
3 2 OR BLANK OR A "“U" ON EITHER ONE OF THOSE TWO. I MEAN A 1 OR Z2
9? OR BLANK, IM SORRY, RATHER THAN A “U"?
10 A. OH NO. IT COULDN’T BE A "1." WELL, I MEAN I JUST DISCUSSED
11 THE POSSIBILITY OF IT BEING A "2" BUT I DON'T THINK "2" IS A
12 CORRECT CODE. AND THERE IS ANOTHER PLACE IN THE QUESTIONNAIRE
13 THAT CODES THAT SPECIFIC INFORMATION. THE INFORMATION ISN’T
14 LOST. AND THAT AVOIDS THE JUDGMENT. THERE'S A PLACE IN THE
13 STRENGTH OF THE EVIDENCE PORTION OF THE QUESTIONNAIRE WHICH
146 SPECIFICALLY ASKS WHAT DID THE DEFENDANT SAY TO OTHER FEOFLE.
17 @. SO WHEN YOU SAY YOU WOULD RESOLVE AN AMBIGUITY IN FAVOR OF
ie THE LEGITIMACY OF THE CONVICTION OR SENTENCE, IN THIS CASE. 19 | REALLY THERES NO AMBIGUITY, YOU WOULD HAVE TO ADD SOMETHING.
20 ISN’T THAT RIGHT? |
21 A. IN A SENSE YES. |
22 EF TO SAY THAT THERE WAS REMORSE OR TO SAY THAT THERE WAS |
| |
23 | PLEASURE. THAT WOULDN’T BE THE —- YOU WOULDN’T ACTUALLY BUMP IT |
24 OVER FROM A CLEAR "U"™ TO A BLANK OR A 1 OR 2, BECAUSE OF THAT.
<5 IS THAT, DO I CORRECTLY UNDERSTAND THAT? |
470
GATES - DIRECT
A. I THINK YOU’RE RIGHT. I THINK THAT IT SAYS HE REVEALED
pb
THIS TO SOME OTHER PEOPLE AND THERES REALLY NO INDICATION OF
WHETHER OR NOT THERE WAS REMORSE OR PLEASURE EXPRESSED, AND, BUT
THAT WAS ENOUGH TO RAISE THE QUESTION ABOUT IT.
RR. S00 THEN IT BECOMES —-
A. ON LEGITIMIZING THE SENTENCE THAT WAS GIVEN.
@. SO IT’S NOT EXPRESSLY STATED, IT-S NOT SUGGESTED ONE WAY OR
THE OTHER. AND IT’S NOT INCONSISTENT?
WO
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A. THAT’S RIGHT.
P
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o ®@. PERHAPS TO BE A “"U".
11 CO~PERPETRATDRS, SAME PAGE. ON PAGE 16 OF THE
12 QUESTIONNAIRE. YES, NO, NUMBER. ANYTHING SPECIAL ABOUT THOSE?
13 A. NO.
14 @. OKAY. THEN ON PAGE 177
15 A. PAGE 17 —~-
16 Q. 17 OF THE QUESTIONNAIRE. 48B, WHAT DOES THAT PAGE DESCRIBE?
17 A. THAT PAGE DESCRIBES THE DEFENDANT’S ROLE IN THE HOMICIDE AND
138 IN ANY CONTEMPORANEOUS OFFENSE. AND YOU CAN SEE THAT THERE’S
® 19 FOUR CATEGORIES ON THE LEFTHAND SIDE: ACTS OF VIOLENCE BY THE
20 DEFENDANT: THE INTENTION TO USE DEADLY FORCE; DEFENDANTS ROLE
21 IN PLANNING; AND DEFENDANTS PRESENCE.
22 AND YOU ALSO NOTE THERE-S TWO COLUMNS OF PLACES TO |
23 ENTER ANSWERS. ONE IS ON THE LEFTHAND SIDE, AND AT THE BOTTOM |
24 HALF OF THE PAGE, THERE‘S A COLUMN UNDER SOMETHING CALLED |
23 CONTEMPORANEOUS OFFENSE FOR ENTERING ANSWERS. AND THE WAY THIS
471
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WORKS, THAT IF THERE WAS A HOMICIDE AND A CONTEMPORANEOUS
OFFENSE, THEN YOU COULD CODE ANSWERS WITH RESPECT TO BOTH OF
THOSE, ON THE SAME PACE.
@. SO HOW DOES THIS RELATE TO THE KIND OF DESCRIPTION WE HAD IN
THE CODING IN THE FIRST STUDY ON THIS GENERAL SUBJECT?
A. THIS IS FAR SUPERIOR TO ANYTHING WE HAD IN THE FIRST STUDY.
@. IN TERMS OF?
A. IN TERMS OF PRECISELY DEFINING THE DIFFERENCES BETWEEN THE
ROLES THAT THE DIFFERENT ACTORS IN THE CRIME PLAYED.
@. S0, MAYBE WE CAN GO DOWN VERY QUICKLY DOWN THE CODING HERE?
A. OKAY. IN THIS CASE AT FOIL 193 IT SAYS THAT THE DEFENDANT
COMMITTED OR PARTICIPATED IN THE ACT THAT CAUSED THE DEATH OF
THE VICTIM. THAT WAS EXPRESSLY STATED IN THE FILE.
UNDER COLUMN B, IT’S EXPRESSLY STATED IN THE FILE THAT
THE DEFENDANT INTENDED TO USE DEADLY FORCE.
THEN IN, RATHER CATEGORY C, IT WAS SUGGESTED BY THE
FILE THAT THE DEFENDANT WAS NOT THE PLANNER. BUT WAS AWARE OF
THE PLAN TO COMMIT THE HOMICIDE.
AND IN CATEGORY D, IT’S EXPRESSLY STATED THAT THE
DEFENDANT WAS PRESENT AT THE SCENE OF THE HOMICIDE.
@. PRESENT AT THE SCENE OF THE HOMICIDE. DO YOU RECALL IF
THERE WAS ANY DEFINITION ON THAT SUBJECT. WHAT THE SCENE AND THE
HOMICIDE WAS, NOT IN THIS CASE MAYBE, BUT IN ANOTHER CASE WHERE
IT MIGHY BE '-—
A. IT’S EASILY ILLUSTRATED IN A BANK RUBBERY. YOU KNOW, WHERE
472
GATES - DIRECT
1 THERE“S A PLANNER, WHICH IS AT HOME, AND THERE-S A DRIVER OF THE
2 CAR WHO NEVER GOES INTO WHERE THE ACTUAL HOMICIDE OCCURRED: AND
3 THEN THERE’S THE PEOPLE THAT WERE THERE ON THE SPOT. AT THE
4 SCENE OF THE HOMICIDE. AND THIS CODING REFLECTS THOSE KINDS OF
3 DIFFERENCES.
Ke & @. FOR MORE AMBIGUOUS KINDS OF SITUATIONS WHERE A PERSONS
7 ' AROUND THE BLOCK OR JUST OUTSIDE THE DOOR OR THAT KIND OF THING.
3 DO YOU RECALL IF THERE’S A SPECIFIC INSTRUCTION ON THAT SUBJECT?
? A. ID HAVE TO REFER TO THE INSTRUCTIONS.
10 @. PAGE 207? ABOUT HALFWAY DOWN THE PAGE?
11 A. SURE, THERE‘S A HALF A PAGE WORTH OF INSTRUCTION THAT
12 GENERALLY ASSISTS YOU IN THIS PART OF THE QUESTIONNAIRE. AND IN
13 REFERENCE TO, TO YOUR POINT, IN THE MIDDLE OF THE PAGE, IT SAYS
14 | "PRESENCE" MEANS IN A POSITION WHERE THE DEFENDANT COULD SEE THE
13 CO-PERPETRATOR KILLER AT THE MOMENT OF THE HOMICIDE. THAT'S THE
1&6 KIND OF SPECIFICITY IN THE INSTRUCTIONS.
17 @. AND AGAIN THATS SOMETHING THAT WAS USED. DISCUSSED, MADE
18 AVAILABLE TO ALL THE CODERS, AND USED BY YOU IN YOUR REVIEW?
pl 19 A. YES.
20 @. MOVE ONTO PAGE 18, ROLE OF CO-PERPETRATORS, I GUESS WE'RE
21 WITHIN THE SAME SUBJECT HERE, 48C7? |
22 A. THAT’S CORRECT. |
23 AND THIS. THIS QUESTION DEALS WITH THE CO-PERPETRATOR, |
24 AND ITS A WAY TO CODE CO-PERPETRATORS INVOLVEMENT IN THE. IN
23 THE HOMICIDE, AND IN A CONTEMPORANEOUS CRIME IF THERE WAS ONE.
——— ———— —— ———— —————— A ——" TP. —
47
GATES - DIRECT
1 WE WILL JUST GO THROUGH THE CODES IN THIS CASE. AND
2 UNDER THE CATEGORY. ACTS OF VIOLENCE, IT“3 CODED 1. AND IF YOU
LOOK DOWN BELOW TO CODE A, IT SAYS THAT THE CO-FERPETRATOR
COMMITTED OR PARTIFPATED IN THE ACT THAT CAUSED THE DEATH OF THE
VICTIM.
3
4
Ss
a b AND UNDER CATEGORY 3. WHICH IS CODE B, THERE-S A "1"
7 CODED, AND GOING DOWN, THAT SAYS THAT THE CO-PERFETRATOR
8 INTENDED TO USE DEADLY FORCE. AND THEN UNDER CATEGORY 4, CODE
9 C, THE HOMICIDE, THAT'S THE CO-PERFETRATOR WAS THE PRIME MOVER
10 IN PLANNING THE HOMICIDE.
11 AND UNDER CATEGORY 5. AS TO THE SCENE OF THE HOMICIDE,
12 ~ | THAT'S CODE D, AND THERE A "1" THERE. AND THAT'S THE
13 CO-PERPETRATOR WAS PRESENT AT THE SCENE OF THE HOMICIDE.
14 Q@. AGAIN, WERE THERE ADDITIONAL INSTRUCTIONS ON THAT, DO YOU
15 THINK. ON PAGE 20 OF THE INSTRUCTIONS? I GUESS WE HAVE SOME OF
164 |THIS OR PERHAPS NOT. THERE’S NOT ANY MORE SPECIFIC THINGS ON
17 THOSE, THAN JUST THIS LIST?
18 A. YEAH, BUT THOSE ARE GENERAL INSTRUCTIONS, --
p 19 @. I SEE?
20 A. -- ABOUT BEING PRESENT, AND ABOUT WHAT ARE ACTS OF VIDLENCE,
21 SO THAT APPLIES TO ALL THE QUESTIONS, IN GUESTION 48, A THROUGH
23 '@. 1 SEE, THATS WHAT IT SAYS ON THE TOP OF PAGE. 43 THROUGH
25 NEXT PAGE, 19, DISPOSITION OF THE CO-PERFETRATOR’S
M
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10
--
©
a74
GATES - DIRECT
CASE.
A. THIS IS AGAIN LAID OUT THE WAY THE OTHER QUESTIONS WERE.
WITH RESPECT TO THE CO-PERPETRATOR, AND WE“LL JUST RUN THROUGH
IT REAL FAST. INDICTMENT. WHICH IS CATEGORY A, AND YOU CAN LOOK
DOWN TO "A," HE WAS INDICTED FOR MURDER. AND THE MANNER OF
DISPOSITION, WHICH IS CODE B, AND THAT'S A NUMBER 2. HE HAD A
JURY TRIAL AND THAT WAS A SEPARATE TRIAL FROM THE DEFENDANT.
CATEGORY C» WHICH IS CODE C., THERE“S A "1", AND THATS
THAT THE CONVICTION WAS FOR MURDER.
AND CATEGORY D ASKS IF THERE WAS TESTIMONY GIVEN. AND
THIS INDICATES THAT IT WAS UNKNOWN. IF THERE WAS TESTIMONY BY
THE CO-PERPETRATOR.
AND CATEGORY E, DESCRIBES THE SENTENCE. AND THAT'S A
99, AND THAT REPRESENTS A DEATH SENTENCE.
THE COURT: IN SOME OF THESE, AND I MAY NOW BE CONFUSED
ABOUT THE STUDY. YOU HAD THE TRANSCRIPTS AVAILABLE. IF YOU HAD
HAD THE TRANSCRIPT AVAILABLE THERE WOULD BE NO QUESTION ABOUT
WHETHER THE CO-PERPETRATOR TESTIFIED.
AM I TO ASSUME THAT YOU DID NOT HAVE THE TRIAL
TRANSCRIPTS AVAILABLE HERE?
THE WITNESS: WELL, I CAN‘T TELL WITHOUT THE WORKING
SHEET, THOSE 3 SHEETS 1 DESCRIBED, ONE OF THEM THAT IS MISSING.
ENCODES THE SOURCE FROM WHICH THIS CASE WAS CODED. SO IF IT WAS
CODED AT THE DEPARTMENT OF PARDONS AND PAROLES WE WOULDN'T HAVE
HAD THE TRIAL TESTIMONY AVAILABLE TO US.
a ——— a— ——
—— C—O A ——
4735
GATES - DIRECT
ADDITIONALLY. IT’S TALKING ABOUT THE TESTIMONY OF THE
po
CO-PERPETRATOR, AND UNLESS YOU HAVE, PARDON ME, UNLESS YOU HAD
THE CO-PERPETRATOR’S FILE, IT WOULD BE ONLY ONE QUESTION THAT
YOU COULD ANSWER, AND THAT IS DID THE CO-PERFETRATOR TESTIFY FOR
THE DEFENDANT. SEE THESE OTHER POSSIBILITIES UNDER CODE D ARE
TESTIFIED AT HIS OWN TRIAL. ON HIS OWN BEHALF. SO IF YOURE
CODING A DEFENDANT'S FILE AND YOU DON’T HAVE THE
CO-PERPETRATOR”S FILE WITH YOU, YOU COULDN’T ANSWER THAT
¥
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A
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QUEST ION.
fb
o THE COURT: MY QUESTION, WAS IT AVAILABLE DURING THE
11 PROCESS OF THIS STUDY? I REMEMBER THE TESTIMONY ABOUT BEING AT
12 ARCHIVES AND HAVING ACCESS TO SUPREME COURT RECORDS.
13 DID YOU ALL IN COMPILATION OF YOUR SECOND STUDY
14 UTILIZE THE SUPREME COURT RECORD OR WAS THAT JUST IN THE FIRST
15 STAGE?
146 THE WITNESS: IT WAS IN BOTH, BUT TO DIFFERENT DEGREES.
$17 IN THE FIRST STUDY, TO FILL OUT THE SUPREME COURT QUESTIONNAIRE
13 OUR PRIMARY SOURCE WAS THE SUPREME COURT DOCKETS.
® 19 IN THIS SECOND STUDY, OUR PRIMARY SOURCE WAS THE PAROLE
20 BOARD FILES. PLUS IF THERE WAS AN APPEAL IN THE CASE,
<1 PROFESSOR BALDUS WOULD HAVE PROVIDED US WITH THE SUPREME COURT
22 OPINION AND ANY OTHER DOCUMENTS LIKE THE YORK FILE OR THE YORK |
23 CARD. THAT SORT OF THING THAT HE HAD AVAILABLE.
24 IN CASE OF DEATH SENTENCE CASES. UNLESS THERE WAS A
23 CO~-PERPETRATOR, WHO RECEIVED A LIFE SENTENCE, OR UNLESS THE
476
GATES ~ DIRECT
1 DEFENDANTS DEATH SENTENCE WAS SUBSEQUENTLY REDUCED TO LIFE. THE
DEPARTMENT OF PARDONS AND PAROLES WOULD NOT HAVE A CRIMINAL 2
3 INVESTIGATION DONE ON THAT PARTICULAR CRIME BECAUSE THEY DIDNT
4 CONSIDER THAT THE DEATH CASES WERE PART OF THEIR RESPONSIBILITY.
3 THEY WERENT GOING TO ENROLL THOSE PEOPLE. SO IN THAT CASE. WE
é WOULD GO TO THE SUPREME COURT AND USE THE SUPREME COURT RECORDS
7 TO CODE THOSE CASES.
8 THE COURT: LET’S TAKE A RECESS FOR ABOUT TEN MINUTES.
9? MR. FORD: THANK YOU.
10 — s -
11 (RECESS TAKEN.)
12 THE COURT: ALL RIGHT, MR. FORD, GO AHEAD.
13 i"
14 EDWARD RAYMOND GATES.
13 BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
16 TESTIFIED FURTHER AS FOLLOWS:
17 DIRECT EXAMINATION (CONT D)
13 BY MR. FORD:
gp 19 R. I THINK WE“RE ON PAGE 19. 20 WITH REGARD TO THIS QUESTION WITH REGARD TO TRIAL
21 TRANSCRIFTS, WHERE IT MIGHT BE NECESSARY TO REFER TQ THE |
22 TRANSCRIPT OF A CO-PERPETRATOR’S SEPARATE TRIAL IN ORDER TO FIND
23 CERTAIN ITEMS OF INFORMATION, WAS THAT EVER DONE?
24 A. YES, IT WAS. IN THE CASE WHERE THE CODER WAS CODING A DEATH
23 SENTENCE CASE, AT THE SUPREME COURT, WELL THEN THE
477
GATES - DIRECT
1 CO-PERPETRATOR’S FILES WERE READILY AVAILABLE AND IN CODING THAT
2 CASE. THAT CASE WOULD HAVE BEEN PULLED AND THE CODER WOULD HAVE
3 REFERRED TO THAT FILE.
4 THE COURT: THATS THE CASE HERE. ISN‘T IT?
i» BY MR. FORD:
6 @. WHY WOULD THAT NOT HAVE OCCURRED HERE. IF THAT WERE THE
7 CASE?
3 A. IT COULD NOT HAVE OCCURRED HERE IF, IF ANY ONE OF THE
? SENTENCES OF THE CO-PERPETRATORS IN THIS CASE WAS REDUCED TO A
10 LIFE SENTENCE, THEN THE DEPARTMENT OF PARDONS AND PAROLES” FILE
11 WOULD HAVE A COMPLETE CRIMINAL INVESTIGATION OF WHAT CCCURRED.
12 @. WHAT IF THIS DOCUMENT ITSELF WERE ACTUALLY CODED AT THE
13 DEPARTMENT OF PARDONS AND PAROLES, RATHER THAN --
14 a. THATS WHAT I MEANT.
13 Q. SO THEN IN THOSE CASES YOU WOULDN‘T GO OVER TO THE SUPREME
16 COURT AND GET THE TRIAL TRANSCRIPT OF THE CO-PERFPETRATOR WHEN
17 YOU WERE NOT AT THE --
18 THE COURT: UNDER COLUMN E, IT SAYS. 9%, DEATH
® 19 SENTENCE. IS THERE ANYTHING IN THE QUESTIONNAIRE THAT SUGGESTS
20 THAT IT WAS REDUCED? |
21 THE WITNESS: NO, THERE ISNT.
22 |BY MR. FORD: |
23 |@. PERHAPS 1 CAN CLARIFY A BIT.
24 IF 1 RECALL. WHEN, BACK A COUPLE PAGES, THERE WAS SOME
23 INFORMATION ABOUT THE TRIAL PROCESS. PENALTY PHASE. AGGRAVATING
473
GATES - DIRECT
1 CIRCUMSTANCES FOUND, THOSE KINDS OF THINGS, AND I BELIEVE THERE
2 WERE A NUMBER OF BLANKS.
3 A. UH HUH.
4 @. YOU RECALL THAT?
S A. UH HUH.
% 6 @. I BELIEVE YOU INDICATED THAT THAT SUGGESTED THAT THIS WAS,
7 THAT THIS DOCUMENT WAS CODED AT 'THE DEPARTMENT OF PARDONS AND
PAROLES, RATHER THAN THE SUPREME COURT. WHERE THAT APPEAL
v
©
INFORMATION WAS NOT AVAILABLE?
10 A. THAT“S CORRECT.
11 @. AND THOSE BLANKS WERE LEFT TO BE FILLED IN AT A LATER TIME,
12 IF 1 RECALL YOUR TESTIMONY?
13 A. THAT’S CORRECT.
14 THE COURT: THIS IS WHAT'S TROUBLING ME.
135 THE WAY I UNDERSTAND THIS TESTIMONY IT IS THIS:
16 THE WITNESS: YES, SIR.
17 THE COURT: IF IT WAS A DEATH PENALTY CASE, THE PARDONS AND
18 PAROLES BOARD DID NOT HAVE A CRIMINAL INVESTIGATIVE FILE, BECAUSE
» 19 THEY DIDN’T CONSIDER THAT THEY HAD ANY RESPONSIBILITY TQ PAROLE Ti
20 PEQPLE.
21 THIS IS A DEATH PENALTY CASE. THEREFORE IF THE
22 TESTIMONY IS CONSISTENT. THE PARDONS AND PARCLES BOARD WOULD NOT
23 HAVE HAD THE INFORMATION REQUIRED TD FILL OUT ALL THE REST OF
24 THIS STUFF WHICH YOU WOULD HAVE GOTTEN FROM THE INVESTIGATIVE
23 REPORT.
47%
GATES - DIRECT
CLEARLY THEY GOT IT FROM SOMEPLACE. --
EITHER THE STATEMENT THAT PARDONS AND PAROLES BOARD DID
NOT HAVE CRIMINAL INVESTIGATIVE REPORTS IN DEATH PENALTY CASES
IS NOT ENTIRELY CORRECT, OR THEY WENT TO THE SUPREME COURT IN
THIS CASE, OR THEY USED A DIVINING ROD. I DON’T KNOW WHAT IT
IS, BUT THERE‘S SOME PROBLEM THERE, SOMEPLACE.
THE WITNESS: CAN I JUST TRY TO CLARIFY SOMETHING?
BY MR. FORD:
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Q KNOWING FROM YOUR OWN PERSONAL RECOLLECTION WHERE THIS WAS
—
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CODED?
12 le. NG 1 DON-T,
12 |@. OTHER THAN BY THE INFERENCES IN THE FILE?
14 |A. THAT'S CORRECT.
1S |@. DO YOU KNOW THE PROCEDURAL SUBSEQUENT HISTORY OF WHAT
16 | HAPPENED TO MR. BROWN? DO YOU HAVE ANY INFORMATION ABOUT THAT?
17 |A. NO. I HAVE NO INFORMATION.
18 MR. FORD: IF IT’S NECESSARY, YOUR HONOR, I‘M IN A
pe 19 |SITUATION WHERE MY WITNESS CANT FILL IN A GAP THAT I THINK IS
20 | JUDICIALLY NOTICEABLE IF THE COURT WISHES THE SUSPENSE
21 |ELIMINATED.
22 THE COURT: WELL. WHY DON-T YOU SUGGEST IT, AND LET ME
23 |SEE IF I-LL NOTICE IT.
24 MR. FORD: I BELIEVE, PERHAPS, WE COULD AGREE, |
25 CERTAINLY THERE“S NO ONE IN THE WORLD MORE EXPERT THAN MS.
——— —— ———
GATES - DIRECT
WESTMORELAND IN THESE SITUATIONS. AND THAT IT IS MY
fe
UNDERSTANDING THAT MR. BROWN‘S SENTENCE WAS REDUCED, ULTIMATELY
(8)
3 I BELIEVE, THROUGH SOMETHING OTHER THAN THE APPEAL PROCESS,
4 WHICH WOULD HAVE ENDED HIM UP AT THE DEPARTMENT OF PARDONS AND
S PAROLES. I BELIEVE THAT IS MY UNDERSTANDING. AND IF S50. THAT
© & WOULD BE REFLECTED IN JUDICIAL DOCUMENTS. IT COULD BE NOTICED,
7 BUT PERHAPS WOULD STIPULATE TO THAT IF SHES AWARE OF THAT FACT
8 AS WELL.
? MS. WESTMORELAND: YOUR HONOR. IT HAPPENS TO BE THAT
10 IM FAMILIAR WITH THE CASE OF JACK ALDERMAN. I HANDLED THAT
11 CASE. AND I KNOW OF THE CO-PERPETRATOR’S CASE. MR. ALDERMAN WAS
12 UNDER DEATH SENTENCE UNTIL WITHIN THE LAST YEAR.
13 AS FOR MR. BROWN, MY ONLY KNOWLEDGE IS THAT HES STILL
14 SERVING A LIFE SENTENCE IN THE STATE PRISON SYSTEM. I DO NOT
15 RECALL ANYTHING ABOUT HIM EVER HAVING BEEN UNDER A DEATH
16 SENTENCE AND THAT HAVING CHANGED. I KNOW HE“S UNDER A LIFE
17 SENTENCE AT THIS TIME. THAT’S THE ONLY STIPULATION I CAN ENTER
18 INTO BECAUSE I JUST DON’T KNOW ANYTHING MORE ABOUT THE FACTS
% 19 THAN THAT.
20 THE COURT: WELL. I WON‘T NOTICE OR STIPULATE, BUT THAT
21 AT LEAST SUGGESTS THIS MAY NOT BE A DEATH PENALTY CASE AS I WAS
22 ASSUMING. GO AHEAD.
23 BY MR. FORD:
24 QR. WITH REGARD, CLARIFYING THE EXTENT OF YOUR PERCEPTION OF
25 THESE THINGS FROM SOMETHING OTHER THAN APPELLATE RECCRDS. DO YOU
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12
13
431
GATES - DIRECT
RECALL WHILE YOU WERE AT THE DEPARTMENT OF PARDONS AND PAROLES.
ENCOUNTERING CASES WHICH HAD PREVIOUSLY BEEN DEATH FENALTY CASES
AND BECAME TERMS OF YEARS, WITHIN THEIR JURISDICTION, DID THAT
FROM TIME TO TIME OCCUR?
A. YES.
@. AND IN ORDER OF TIME, IF I RECALL YOUR TESTIMONY, IT WAS YOU
WENT TO THE BOARD OF PARDONS AND PAROLES FIRST, THEN TO THE
SUPREME COURT.
A. THAT-”S CORRECT.
@. NOW, A MINUTE AGO I WAS ASKING YOU ABOUT THAT PAGE 2 WHERE
THERE WERE A BUNCH OF BLANKS LEFT BECAUSE THE INFORMATION WAS
NOT THERE. AND AT LEAST IT WAS YOUR UNDERSTANDING THAT THOSE
WOULD LATER BE FILLED IN FROM SOME OTHER SOURCE BECAUSE THE
APPELLATE OR TRIAL RECORD INFORMATION WAS NOT ALL IN THE BOARD
OF PARDONS AND FAROLES?
A. THAT’S CORRECT.
THE COURT: LET ME ASK ONE QUESTION: AM I CORRECT IN
UNDERSTANDING THIS QUESTIONNAIRE, THAT THIS QUESTIONNAIRE SHOWS
THAT BROWN RECEIVED A DEATH PENALTY?
THE WITNESS: THAT'S RIGHT.
THE COURT: OKAY.
BY MR. FORD:
@. WITH REGARD TO ANY. WITH REGARD TO THIS FOIL. SAY, 237,
COULD THE SAME THING HAVE OCCURRED WITH REGARD TO THE LATER
INFORMATION BEING FILLED IN FROM OTHER RECORDS THAT WERE NOT
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1 PART OF THE PARDONS AND PAROLES BOARD” S RECORDS, SAME THING WE
2 DISCUSSED ON PAGE 2 WHERE BLANKS WERE LEFT. BECAUSE TRIAL
3 PROCEDURAL INFORMATION WAS NOT AVAILABLE IN THOSE RECORDS?
4 A. THATS NOT VERY LIKELY?
3 @R. YOU DON’T KNOW WHETHER OR NOT SUBSERUENT INFORMATION WAS
Ww b OBTAINED OR NOT ON THESE PARTICULAR SUBJECTS, THOUGH?
7 A. NO.
3 @. I GUESS THEN THERE WAS A DISTINCTION WITH REGARD TO THE, YOU
by JUST DIDN’T, WAS IT FOR LOGISTICAL REASONS OR FOR WHAT REASONS
10 FOR. HAVING THE DIFFERENCE, WHERE YOU WOULD GO TO THE
11 CO-DEFENDANT“S WHEN YOU ARE AT THE SUPREME COURT, BUT YOU
12 WOULDN’T 50 TO THE CO-DEFENDANT’S RECORD OVER AT THE SUPREME
13 COURT WHILE YOU WERE AT THE PARDONS BOARD? WAS IT JUST A MATTER
14 OF, OF YDUR PROCEDURES OR WHAT?
13 A. 1 REALLY THINK THAT WE“VE MUDDLED A VERY SIMPLE ISSUE.
16 RQ. I“M PRETTY GOOD AT THAT SOMETIMES. SEE IF YOU CAN EXPLAIN
17 IT ONE MORE TIME?
13 A. OKAY. THE PROCEDURE FOR CODING CO-PERPETRATORS WAS IF THERE
w 19 WAS A CO-PERPETRATOR IN THE CASE, THEN YOU WOULD HOLD THAT FILE
20 ASIDE, GENERALLY. WE GIVE IT TO THE FILE PULLER, AND HE WOULD
2 FIND THE CO-PERPETRATOR’S IN THE CASE. AND THEN THOSE
22 CO-PERPETRATORS WOULD BE CODED TOGETHER, EITHER BY THE SAME
23 PERSON OR SOMETIMES BY DIFFERENT PEOPLE WHO WERE WORKING
24 TOGETHER.
235 NOW, THE SAME PROCEDURE WAS FOLLOWED AT THE SUPREME
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1 COURT, WHEN WE WENT TO THE SUPREME COURT TO PULL THOSE FILES.
2 WHETHER OR NOT A CO-PERPETRATOR TESTIFIED AT A
3 DIFFERENT TRIAL. WAS NOT THE KIND OF INFORMATION THAT WAS AS A
4 GENERAL RULE IN THE DEPARTMENT OF PARDONS AND PAROLES FILES.
bw WHEN THE CODERS WENT TO THE SUPREME COURT TO SUPPLEMENT
THE INFORMATION THAT WAS UNAVAILABLE AT THE DEPARTMENT OF
PARDONS AND PAROLES, WHEN THEY GOT TO THIS QUESTION ABOUT
&
7
e TESTIMONY. THEY WOULD NOT HAVE, UNLESS IT WERE READILY AVAILABLE
? TO THEM. HAVE STARTED SPENDING A HALF HOUR SEARCHING THROUGH
0 FILES, HAVING PERSONNEL GO GET A FILE THAT ALREADY HAD BEEN
11 CODED OR SOMETHING LIKE THAT, JUST TO ANSWER THIS ONE QUESTION.
12 CIT JUST WOULDN’T HAVE HAPPENED.
13 WITH REGARD TO THIS PARTICULAR FILE, I DONT HAVE THE
14 LAST PAGE. THE LAST PAGE ALWAYS INDICATES WHERE THE
135 INFORMATION, WHERE THE GUESTIONNAIRE, WHERE THE INFORMATION, THE
16 SOURCE OF THE INFORMATION, SO WE WOULD KNOW IF THE LAST PAGE
17 WERE THERE, WHETHER IT WAS CODED AT THE SUPREME COURT OR
18 DEPARTMENT OF PARDONS AND PAROCLES.
pe 19 @. PERHAPS WE CAN MOVE ON THEN. TO PAGE 20 AT THE TOP OF THE
20 PAGE, NUMBER OF VICTIMS KILLED. IN THIS CASE. ONE. 21 A. THAT’S RIGHT. THE RUESTION 4% INDICATES THAT THAT'S THE
22 NUMBER OF VICTIMS KILLED FOR WHOM THE DEFENDANT WAS EITHER THE
23 TRIGGER MAN OR PHYSICALLY PARTICIPATED IN THE ACT.
24 AND IN GUESTION NUMBER S50. THAT INDICATES THAT THERE
23 WERE NO VICTIMS FOR WHICH THE DEFENDANT WAS NOT A TRIGGER MAN OR
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PHYSICALLY PARTICIPATING IN THE ACT.
THE COURT: I DON‘T KNOW WHETHER THE SECOND
ILLUSTRATION WILL DEAL WITH THIS OR NOT, BUT HARKENING BACK TO
THE POKER GAME CASE WE HAD ON THE FIRST STUDY.
DO YOU HAVE AN OPINION. BASED ON YOUR OBSERVATIONS. AS
TO HOW THE DEFENDANT IN THAT CASE WOULD HAVE BEEN CODED UNDER
THE RULES AND PROCEDURES EMPLOYED IN THE SECOND STUDY?
THE WITNESS: THE RULE WAS THE SAME. IF CO-DEFENDANTS
PARTICIPATED IN THE ACTS OF VIOLENCE THAT CAUSED THE VICTIM’S
DEATH, THEN THE CODER WOULD HAVE FOLLOWED THE SAME PROCEDURE.
THE COURT: IF I REMEMBER THE FACTS CORRECTLY. AND SO
WERE OPERATING ON THE SAME FACTS, THE DEFENDANT IN THE POKER
GAME CASE PHYSICALLY ASSAULTED THE VICTIM: HE WAS TAKEN TO SOME
OTHER PLACE. SHOT BY A CODEFENDANT AND BURNED BY SOMEBODY OTHER
THAN HIMSELF. S0 THAT HE NEVER DID ANYTHING WHICH IN A MEDICAL
SENSE WOULD HAVE CAUSED THE DEATH. ALTHOUGH 1 UNDERSTAND LEGALLY
HE WAS ACCOUNTABLE.
UNDER THOSE FACTS, WOULD THEY HAVE CODED THE ANSWER TO
49 AT FOIL 249 AS THOUGH THE DEFENDANT WERE THE TRIGGER MAN, OR
PHYSICALLY PARTICIPATED IN THE KILLING?
BY MR. FORD:
@. DO YOU RECALL IF THERES A RULE ON THIS. AND IF IT IS IN THE
INSTRUCTIONS AT ALL?
A. I DON’T RECALL. LET ME JUST -- THERE’S NOT A SPECIFIC RULE
THAT ADDRESSES THIS CASE.
~~
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435
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THE BEAUTY OF THIS QUESTIONNAIRE IT ALLOWS YOU TO
DISTINGUISH THOSE SITUATIONS, AND YOU COULDNT DISTINGUISH THOSE
SITUATIONS IN THE FORMER QUESTIONNAIRE.
IF YOU TURN BACK TO QUESTION NUMBER 42, PARTICULARLY
43B.
THE COURT: 43B, AS IN BQY?
THE WITNESS: YES. THIS WHOLE PAGE ALLOWS YOU TO
DISTINGUISH BETWEEN THE ACTUAL PHYSICAL ACTS THAT THE DIFFERENT
CO-PERPETRATORS, WELL, THIS ADDRESSES THE DEFENDANT. AND THEN
THE OTHER PAGES ADDRESS THE CO-PERPETRATORS, BUT THESE QUESTIONS
ALLOW YOU TO DISTINGUISH BETWEEN THE PRECISE ACTS THAT THE
DEFENDANT ACTORS IN THE CRIME CONTRIBUTED.
THE COURT: ALL RIGHT. I NOTICE 193 IS ESSENTIALLY THE
SAME QUESTION AS THAT WHICH WE ARE DISCUSSING AT 24% OR THAT,
YES, 247.
MY QUESTION IS THE SAME:
UNDER THE RULES OR PRACTICE, WOULD YOU HAVE FOLLOWED
THE SAME PROCEDURE AS THAT WHICH YOU FOLLOWED IN THE POKER GAME
CASE IN STUDY 1 AND CODED THAT. 1 AT 193, AND 1 AT 2497
THE WITNESS: NO, I DON'T THINK WE WOULD.
BY MR. FORD:
@. WOULD YOU PERHAPS GO DOWN, BACK ON PAGE 17. GO DOWN THE FOUR
DIFFERENT CATEGORIES. AND IF YOU CAN, JUST BASED ON REVIEW OF
THE RULES. RECOUNT HOW THESE WOULD HAVE BEEN CODED. THE HARDY
CASE, THE POKER GAME CASE WOULD HAVE BEEN CODED ON 48B7
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A. YES. KENNETH HARDY WHO WAS THE PERSON WHO PULLED THE
TRIGGER OF THE SHOTGUN, AND S0 ON, HE WOULD HAVE BEEN CODED 1 AS
COMMITTING THE ACT THAT CAUSED THE DEATH. AND 1 THAT HE
INTENDED TO USE DEADLY FORCE. AND I“M NOT SURE IF HE WERE THE
PRIME MOVER OR NOT, I WOULD HAVE TQ -—-
THE COURT: THE PRIME MOVER?
THE WITNESS: THE PRIME MOVER.
IN THAT CASE, IT MIGHT BE CODED, AS IT WAS SUGGESTED,
THAT THE DEFENDANT WAS CO-EQUAL IN PLANNING OR SOMETHING LIKE
THAT.
AND THEN FINALLY. HE WOULD GET A 1, THAT THE DEFENDANT
WAS PRESENT AT THE SCENE OF THE HOMICIDE.
BY MR. FORD:
@. THEN FOR THE INDIVIDUAL WHO COMMITTED ASSAULTIVE ACTS BUT
NOT THE FINAL HOMICIDAL ACT, HOW WOULD HE BE CODED?
A. HE WOULD BE CODED AS EXPRESSLY STATED IN THE FILE. UNDER 194,
WHERE THE DEFENDANT DID NOT COMMIT THE ACT, BUT COMMITTED ACTS
OF VIDLENCE, AGAINST THE VICTIM.
AND THAT‘S HOW YOU DISTINGUISH THOSE SITUATIONS.
@. AND OTHERWISE, INSOFAR AS YOURE ABLE TO DETERMINE FROM THE
RECOLLECTION OF THOSE SUMMARY FACTS IN THAT CASE. WOULD THE
CODES BE THE SAME FOR THE REST OF 43B, FOR THE INDIVIDUAL WHO
COMMITTED ASSAULTIVE ACTS, BUT NOT THE HOMICIDAL ACT, GOING DOWN
JUST THROUGH THE REST OF 48B? I WONDERED IF THERE WERE ANY
DIFFERENCES THERE.
————— Sr— ——
@
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A. YES, THERE MIGHT BE. UNDER SECTION B., WHETHER OR NOT THE
DEFENDANT INTENDED TO USE DEADLY FORCE. BUT 198 SAYS THE
DEFENDANT WAS AWARE OF THE INTENTION BY CO-PERPETRATORS TO USE
DEADLY FORCE.
AND IN THAT CASE. IT MAY HAVE BEEN THAT KENNETH HARDY
NEVER INTENDED TO PULL THE TRIGGER OF THE GUN.
@. YOU CAN‘T TELL ON THE BASIS OF YOUR RECOLLECTION?
A. NO.
@. IN EACH OF THESE AREAS, YOU WOULD HAVE THE POSSIBILITY OF
THE EXPRESSLY STATED OR SUGGESTED, OR BLANK, INCONSISTENT, OR
"UJ", UNABLE TO CLASSIFY AS 1, 2 OR 3,» IS THAT RIGHT?
A. THAT’S CORRECT.
@. AND I TAKE IT IN TERMS OF 49 AND 50. QUESTIONS 4% AND 350
BACK ON PAGE 20, ARE THOSE CODES DIFFERENT, TALKING ABOUT THE
NUMBER OF VICTIMS. RATHER THAN THE KINDS OF ACTS THAT A
DEFENDANT COMMITTED. IS THAT WHAT THAT DEALS WITH, IS THAT THE
REASON THESE ARE NOT JUST THE SAME THING OVER AGAIN?
A. IT IS PART OF THE SAME THING OVER AGAIN, BUT THE ADDITION IS
THAT IT’S THE NUMBER OF VICTIMS YOU-RE IDENTIFYING THAT THAT
DEFENDANT WAS RESPONSIBLE FOR KILLING.
Q@. IN CALLING YOUR ATTENTION TO PAGE 20 OF THE INSTRUCTIONS,
ABOUT TWO-THIRDS OF THE WAY DOWN THE PAGE. AFTER THE NUMBER 49.
THERE SEEMS TO BE A RULE THERE HAVING TO DO WITH THE USE OF
THESE CODES, "u", "I", WITH REGARD TO SOME OF THESE
CO-PERPETRATOR SITUATIONS IN THOSE TWO FOILS?
—— ——— ———— ———— {—— —— — —————" ——————{ ——" —— ———
438
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1 A. THAT'S CORRECT. THAT STATES IF THE DEFENDANT WAS A CO-EQUAL
2 IN COMMITTING A SINGLE HOMICIDE, ENTER U-1 FOR THE DEFENDANT,
3 AND U-1 FOR THE CO-PERPETRATOR, IN QUESTION NUMBER 350.
SO THAT SPECIFICALLY ADDRESSES THE SITUATION WHERE TWO
PEOPLE PARTICIPATE IN THAT VIOLENT ACT THAT CAUSES DEATH, THEN
WHAT YOU WOULD CODE THERE IS, IS THE U-1, AND THAT'S A DIFFERENT
CODE THAN WAS USED IN THE PRIOR QUESTIONNAIRE.
A. SEVERAL QUESTIONS, THE REST OF THAT PAGE, NUMBER OF PERSONS
J
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INJURED OTHER THAN THE DECEASED. NUMBER OF SHOTS FIRED. DID THE
10 | DEFENDANT CREATE A RISK OF DEATH TO ONE OR MORE PECQPLE. IN A
11 PUBLIC PLACE, THOSE KINDS OF THINGS, DONT SEEM TO BE APPLICABLE
12 TO THIS CASE. BASED ON WHAT'S WRITTEN IN HERE.
13 ANYTHING TECHNICAL NEEDS PARTICULAR ELUCIDATION ABOUT
14 THOSE QUESTIONS?
13 A. NO, I DONT THINK S50.
16 @. LET“S MOVE THEN TO PAGE 21, MITIGATING CIRCUMSTANCES.
17 DEFENDANTS BEHAVIOR.
18 A. AGAIN THE FORMAT OF THIS QUESTION IS SUCH THAT YOU CAN
1% ANSWER EACH ONE OF THESE PARTICULAR QUESTIONS IN FOUR POSSIBLE
20 WAYS.
21 Q. OKAY. SO I FIND ON MY COPY A "U" ON FOIL 259. SO WHAT DCES
22 THAT MEAN?
23 A. THAT INDICATES IT WAS UNKNOWN IF THE DEFENDANT USED ALCOHOL
24 OR DRUGS IMMEDIATELY PREVIOUS.
25 THE COURT: UNKNOWN OR UNABLE TD CLASSIFY?
439
GATES - DIRECT
THE WITNESS: I“M SORRY, UNABLE TO CLASSIFY, IS 1, 2 OR
BLANK.
THE COURT: WHICH WOULD BE CONTROLLED UNDER THE SAME
SORT OF DISCUSSION WE HAD?
THE WITNESS: THATS RIGHT. THAT’S RIGHT.
BY MR. FORD:
@. THEN I FIND A 2 SUGGESTED BY THE FILE ON HISTORY OF
EMOTIONAL ILLNESS.
IS THERE ANY SPECIFIC DEFINITIONS ON THAT IN THE
INSTRUCTIONS WITH REGARD TO WHAT THAT HISTORY OF MENTAL ILLNESS
WOULD BE?
A. I THINK THAT THERE IS.
@. PAGE 21 OF THE INSTRUCTIONS?
A. PAGE 21, FOIL 2461. AND MANY OF THESE HAVE SPECIFIC
INSTRUCTIONS AND THAT ONE PARTICULARLY SAYS, MUST INVOLVE ACTUAL
TREATMENT IN A MENTAL INSTITUTION COR BY A CERTIFIED PSYCHIATRIST
OR PSYCHOLOGIST.
@. THEN OVER IN THE RIGHT-HAND COLUMN. I SEE 2, SUGGESTED BY
THE FILE. AND HIS OR HER ACTS WERE NOT THE SOLE CAUSE OF DEATH.
1, COOPERATED WITH AUTHORITIES. APPARENTLY EXPRESSLY
STATED.
"J", UNDER ACTING UNDER DURESS.
"J", UNDER HISTORY OF DRUG ABUSE? IS THAT "UY" —-
APPEARS TO BE A "U".
1M SORRY, MOVING DOWN, 274A7
43Q
GATES - DIRECT
1 A. YES.
2 RQ. SAME RULES?
A. SAME RULES.
@. CALLING YOUR ATTENTION TO PAGE 227
THE COURT: LET ME ASK A QUESTION ABOUT FOIL 273.
THE COURT: SINCE YOU DID NOT HAVE THE TRANSCRIPT OF
THE TRIAL OF THE CO-PERPETRATOR, I DON’T KNOW HOW YOU KNEW IF HE
3
4
S
6 : MR. FORD: YES, SIR.
.
3
14 TESTIFIED FOR THE PROSECUTION. THAT IS ONE QUESTION.
10 SECOND QUESTION IS. WOULD YOU CODE THAT AS A "1" IF HE
11 CONFESSED?
12 1 OR 27
13 THE WITNESS: YOUR HONOR. TO ANSWER YOUR FIRST
14 QUESTION, VERY OFTEN IN THE FILES OF THE DEFARTMENT OF PARDONS
13 AND PAROLES THAT WOULD INCLUDE INFORMATION LIKE THAT. IF THE
16 DEFENDANT CONFESSED AND TESTIFIED. THESE —--—
17 MR. FORD: IM SORRY.
18 THE WITNESS: THESE ARE POST CONVICTION INVESTIGATIONS,
= 19 THAT THEY DO. SO THEY VERY OFTEN HAVE THAT INFORMATION AVAILABLE
20 TO THEM.
21 I JUST WANT TO QUALIFY AGAIN, THAT WITHOUT HAVING SEEN
22 THE LAST PAGES ON THAT, ON THIS QUESTIONNAIRE, I REALLY CAN-T
23 TELL WHERE IT WAS CODED. I CAN DRAW INFERENCES. BUT I JUST
24 DON“T KNOW.
23 BY MR. FORD:
421
GATES - DIRECT
@. YOU’RE TALKING ABOUT THE SOURCE OF THE INFORMATION?
ry
2 |A. YEAH.
3 |@. 1 BELIEVE THE JUDGE WAS ASKING WITH REGARD TO WHETHER A
4 |CONFESSION WOULD QUALIFY —-
5 THE COURT: THAT WAS MY SECOND QUESTION.
4 |BY MR. FORD:
7 |@. -- AS COOPERATION OR -— I“M SORRY --
8 THE COURT: IF THE FILE SHOWS ONLY THAT HE CONFESSED,
9 | ADMITTED HIS OWN GUILT, WOULD YOU CODE THAT AS COOPERATION.
10 THE WITNESS: YES.
11 BY MR. FORD:
12 BG. IS THERE A RULE ON THAT?
13 A. YES, FOIL 273.
14 R. WHERE DOES THAT APPEAR?
13 A. 22, PAGE 22, AND THE LAST SENTENCE THERE SAYS IT CAN INCLUDE
14 ANYTHING THE DEFENDANT DOES TO AID INVESTIGATORS THAT HAS THE
17 POTENTIAL TO INCRIMINATE THE DEFENDANT. AND I THINK A
18 CONFESSION WOULD QUALIFY AS THAT.
pM 19 @. I NOTICE ON SAME PAGE 22 OF THE INSTRUCTIONS, THERE’S A
20 DEFINITION ON, NEXT TO FOIL 276A WITH REGARD TO HISTORY OF DRUG
21 AN ALCOHOL ABUSE.
22 A. YES.
23 @. AGAIN. IS THAT. DOES THAT COMPORT WITH THE RULE THAT WAS
24 DISCUSSED. USED, AND MADE AVAILABLE? 23 A. YES.
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Q. MOVE TO PAGE 22. THESE APPEAR TO BE ALL BLANK. I SEE TWO
wysg", 1 GUESS, ONE BY BAD REP, WRITTEN IN IN THE TOP COLUMN:
ONE ON CRIMINAL RECORD. SAME CODING FORM, I GUESS. IS THAT
RIGHT?
A. THATS RIGHT, SAME CODING FORMAT.
@. THEN THE BLANKS ARE ALL. STATEMENT THAT THAT’S INCONSISTENT
WITH THE FILE, THAT ALL THESE OTHER VICTIM ACTIONS ARE
INCONSISTENT WITH THE FILE?
A. THAT’S CORRECT.
@. AND THE "U“S", UNABLE TO CLASSIFY?
A. THAT“S RIGHT.
A. PAGE 23. DEFENDANT’S DEFENSE AND LIABILITY.
WHAT DOES THAT DEAL WITH?
A. THAT DEALS WITH STATEMENTS OR SUGGESTIONS BY THE FILE ON
WHAT, WHAT THE DEFENDANT’ S DEFENSE AND LIABILITY WAS.
STATEMENTS, THESE WOULD BE STATEMENTS THAT HE MADE THAT
WOULD HAVE BEEN CONTAINED IN THE POLICE REPORTS THAT OCCURRED
CLOSE TO THE TIME OF THE HOMICIDE. IF HE SAID I WASN’T THERE, I
DIDNT DO IT. THEN YOU WOULD CODE AN ALIBI.
@. SO THESE WERE CASES WHERE YOU DIDN‘T HAVE THE TRIAL
TRANSCRIPT, TO HAVE TO DO WITH WHAT THE ACTUAL TRIAL DEFENSE
WAS?
A. THIS DOESN’T ADDRESS WHAT THE ACTUAL TRIAL DEFENSE WAS.
THIS ADDRESSES WHAT DEFENSE WAS SUGGESTED BY STATEMENTS MADE BY
THE DEFENDANT AT OR ABOUT THE TIME OF THE CRIME, OR THAT SORT OF
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INFORMATION.
THE COURT: WHAT. MR. FORD, WOULD BE THE SIGNIFICANCE
OF THAT?
MR. FORD: THE SIGNIFICANCE OF —— YOUR HONOR, I. I
THINK PERHAPS PROFESSOR BALDUS COULD ANSWER THAT QUESTION MUCH
BETTER THAN I.
THE COURT: BUT IN ANY EVENT, IF IT IS SIGNIFICANT IT
DID NOT COME FROM THE TRIAL TRANSCRIPT.
THE WITNESS: THAT’S CORRECT.
BY MR. FORD:
@. ARE YOU SAYING THEN IF THERE WAS A TRIAL TRANSCRIPT WHEN YOU
DID THE SUPREME COURT ONES, THAT WOULDN’T GO IN HERE, EVEN IF
THE DEFENDANT TESTIFIED?
A. I’M SORRY. 1 DIDN‘T MEAN TO IMPLY THAT.
WHEN YOU HAVE THE TRIAL TRANSCRIPT, THAT‘S THE ONLY
SOURCE, THAT MEANS THAT YOU DIDNT HAVE RECORDS AT THE
DEPARTMENT OF PARDONS AND PAROLES. AND 50, AS I RECALL, THE
CODERS WOULD HAVE CODED IN WHATEVER DEFENSE THE DEFENDANT WAS
EXERCISING AT THE TRIAL.
@. NOW, I GUESS AT THE BOTTOM OF PAGE 23. BEGIN A SECTION
CALLED THE STRENGTH OF THE EVIDENCE.
FIRST ITEM IN THAT SECTION IS NUMBER 59, POLICE REPORT,
INDICATES CLEAR GUILTY. VYES-NO, NO POLICE REPORT IN FILE.
NOW. WITH REGARD TO YOUR, I THINK YOU TESTIFIED
YESTERDAY TO THE BEST OF YOUR GENERAL RECOLLECTION AT THIS
0.
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POINT, THERE WERE ABOUT A QUARTER OF THE CASES THAT HAD POLICE
REPORTS IN THIS PAROLES BOARD FILE?
A. THATS CORRECT.
9. DOES MEAN THAT "U" WOULD BE CODED IN ALL THOSE CASES WHERE
THERE WAS NONE. ACTUAL POLICE DOCUMENT. OR WERE THERE ANY OTHER
DOCUMENTS USED IN THAT?
A. NO. YOU ANSWERED THAT QUESTION, BASED ON THE INFORMATION IN
THE POLICE REPORT OR THE SUMMARY OF THE POLICE REPORT BY THE
DEPARTMENT OF PARDONS AND PAROLE PERSONNEL.
THE COURT: S0. THATS NOT. YOU DIDN’T CODE IT ON THE
BASIS OF WHAT IT SAYS HERE. IF THERE WAS NO POLICE REPORT IN
FILE, BUT IF THERE WAS A SUMMARY DONE BY A PAROLE OFFICER, THEN
YOU WOULD CODE IT AS THOUGH THERE WERE A POLICE REPORT IN FILE?
THE WITNESS: THAT’S RIGHT.
BY MR. FORD:
a. SO ESSENTIALLY YOU TREATED THE SUMMARIES OF THE POLICE
REPORTS THAT WERE MADE OUT BY THE PAROLE OFFICER, FOR THIS
PURPOSE ANYWAY. AS EQUIVALENT TO A POLICE REPORT ITSELF?
A. THAT‘S CORRECT.
2. AND IN THE OCCASIONS WHERE NEITHER EXISTED YOU WOULD USE THE
wy", 1S THAT RIGHT?
A. THAT’S RIGHT.
a. NEXT. 60, FILE INDICATES THERE‘S AN IDENTIFICATION WITNESS.
HERE IT SAYS NO, IS THAT RIGHT, 2, NO?
A. THAT”S RIGHT.
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Q. DO YOU RECALL IF THERE WAS A RULE ABOUT THE. WHETHER THE
CO-PERPETRATOR WOULD QUALIFY THERE?
A. YES. FDR THE PURPOSES OF QUESTION &0 YOU DID NOT CODE A
CO-PERPETRATOR AS A WITNESS. THERE“S ANOTHER QUESTION LATER ON
WHERE IT ADDRESSES THE ISSUE OF WHAT. WHAT THE CO-PERPETRATORS
SAID ABOUT IMPLICATING THEMSELVES OR THE DEFENDANT IN THE CRIME.
@. DOES THAT RULE APPEAR ON PAGE 23 OF THE INSTRUCTIONS?
A. YES. IT DOES, NEXT TO 460A.
@. &0 AND 460A ARE INTERLINKED?
A. UH HUH.
A. IS THAT
A. JUST LET ME DESCRIBE QUESTION &0A.
@. WELL, PERHAPS. I NOTICE THAT HERE THIS INFORMATION IS ALL
BLANK, APPARENTLY BECAUSE THERE WAS NO SUCH WITNESS. IS THAT
RIGHT?
A. THAT’S RIGHT.
MR. FORD: WE DO HAVE SOME INFORMATION ON THAT IN THE
STRICKLAND FILE, YOUR HONOR. THAT’S ONE OF THE FEW I WOULD LIKE
TO DO FROM THERE.
80 PERHAPS WE COULD SKIP OVER &0A AT THIS POINT.
BY MR. FORD:
@. PAGE 25 INDICATES THAT A WITNESS DID, I‘M SORRY, WHO
IDENTIFIED THE ACCUSED, MADE AN IDENTIFICATION, YES-NO, AGAIN WE
HAVE NO HERE. SO PERHAPS WE COULD TALK ABOUT THAT IN THE
STRICKLAND FILE AS WELL.
496
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24 ALSO. NOTICE DOWN ON THE BOTTOM OF PAGE 26. LINE &3»
FIRST THING THAT APPEARS. THERE WAS A STATEMENT BY THE DEFENDANT
AS INDICATED HERE. IS THAT RIGHT?
A. YES.
@. AND THEN DOWN BELOW THAT ON 393, WE HAVE, LOOKS LIKE THERE’S
BEEN A CHANGE THERE?
A. LOOKS LIKE IT’S A CHANGE FROM A "2" TO A "1".
@. 1S THAT ONE OF THOSE AREAS —-- WERE THESE KIND OF THINGS, HOW
WOULD THAT HAVE OCCURRED, JUST BASED ON YOUR EXPERIENCE. THAT
THAT CHANGE WOULD HAVE BEEN MADE?
A. WELL, IT COULD HAVE OCCURRED IN THREE POSSIBLE WAYS. IT
COULD HAVE OCCURRED BY THE CODERS THEMSELVES WHERE THEY HAD
WRITTEN SOMETHING DOWN AND THEN UPON REFLECTION, WENT BACK AND
CHANGED IT.
IT COULD HAVE OCCURRED DURING MY REVIEW OF THE FILE.
OR IT“S POSSIBLE THAT IT OCCURRED EVEN IN IOWA. IN
PROFESSOR BALDUS’ REVIEWS OF THE FILES.
@. BASED ON PERHAPS SUPPLEMENTAL INFORMATION?
A. UH HUH.
Q. WOULD YOU GO THEN TO PAGE 27. STATEMENTS, &3, STATEMENTS TO
POLICE BY DEFENDANTS OR CO-PERPETRATOR.
CAN YOU KIND OF DESCRIBE JUST WHAT THE FORMAT OF THIS
IS? THIS LOOKS A LITTLE DIFFERENT FROM SOME OF THE FORMATS
WE“VE SEEN.
A. DKAY, IF YOU, FIRST WILL NOTE THE CODE, THE 01 THROUGH 03.
497
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1 11 THROUGH 13, 21 THROUGH 23 AND 31 THROUGH 33, THAT IDENTIFIES
THE KIND OF STATEMENT THAT WAS MADE TO THE POLICE, WHETHER IT
WAS ORAL.» AT THE SCENE, BEFORE THE SCENE, WITHIN 24 HOURS. 30
2
3
4 CN.
S THEN MOVING FURTHER DOWN THE PAGE. UNDER CONCERNING THE
& EVENT. THERE IS TEN OR TWELVE DIFFERENT POTENTIAL STATEMENTS
7 THAT THE DEFENDANT OR CO-PERPETRATOR COULD HAVE MADE. PLUS A
8 | PLACE TO ENTER AN "OTHER" IF NONE OF THOSE ABOVE APPLY.
9 AND THEN IN THE LEFT-HAND COLUMN YOU ENTER THE NUMBER
10 REFERRED TO IN THE CODE ABOVE FOR THE STATEMENT THAT WAS MADE BY
11 THE DEFENDANT.
12 AND IN THE RIGHT-HAND COLUMN, YOU DO THE SAME FOR THE 13 CO-PERPETRATOR.
14 HERE, WHAT THIS INDICATES. AT THE 393, FOIL 393, THAT
13 THE DEFENDANT ADMITTED A DELIBERATE HOMICIDE WITH THE DEFENSE
16 CLEARLY ASSERTED AND THAT THAT STATEMENT WAS WRITTEN OR
17 TRANSCRIBED BUT IT WAS UNCLEAR WHEN.
18 THEN MOVING TO THE RIGHT-HAND COLUMN AT FOIL NUMBER
p 19 414, THAT INDICATES THAT THE CO-PERPETRATOR CLAIMED AN ALIBI,
20 AND THAT THAT WAS ORAL. NOT AT THE SCENE, WITHIN 24 HOURS OF THE |
21 HOMICIDE AND AFTER CUSTODY.
|
|
22 R. COMPLEX, BUT ESSENTIALLY IN TERMS OF THE TERMINOLOGY
23 UTILIZED, NON-TECHNICAL. IS THAT RIGHT?
24 A. RIGHT.
25 @. BUT QUITE A NUMBER OF POSSIBLE ALTERNATIVES HERE, IS THAT
498
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RIGHT?
A. THAT’S CORRECT.
MS. WESTMORELAND: YOUR HONOR, I HATE TO INTERRUPT. AND
I HAVENT UP TO THIS POINT. BUT COULD I ASK MR. FORD NOT TO
LEAD HIS WITNESS QUITE SO MUCH? I KNOW HE“S TRYING TQ SPEED
THINGS ALONG, BUT I WOULD LIKE TO ASK HIM NOT TO LEAD QUITE AS
MUCH IF HE CAN HELP IT.
THE COURT: THAT’S A FAIR QUESTION.
BY MR. FORD:
@. WITH REGARD TO THIS QUESTIONNAIRE, I‘M JUST, MESMERIZED BY
THIS PARTICULAR ITEM.
YOU TESTIFIED EARLIER WITH REGARD TO CHECKING FOR
ERRORS, FINDING ERRORS, ANY ONE OF THESE TWELVE POSSIBILITIES
WERE MISCHOSEN OR WAS PLACED IN THE WRONG ONE OF ANY ONE OF
THESE TWENTY DIFFERENT ALTERNATIVES, OR TEN, I GUESS, ON EACH
SIDE, IS THAT WHAT YOURE TALKING ABOUT AS AN ERROR?
A. COULD YOU REPEAT THAT?
@. WOULD THAT COUNT AS AN ERROR YOU WOULD FIND OR NOT?
A. PLEASE REPEAT THE QUESTION.
MR. FORD: I GUESS THAT WAS A LEADING QUESTION, YOUR
HONCR, I JUST --
BY MR. FORD:
Geli IF w-
A. LET ME SAY THIS MUCH.
@. IF INSTEAD OF 33 AND &3A, ASSUMING THAT 33 IS THE CORRECT
49
GATES - DIRECT
ANSWER WRITTEN OR TRANSCRIBED BUT UNCLEAR WHEN, IF SOMEBODY HAD
WRITTEN IN 21, AND YOU HAD CHECKED, WOULD YOU HAVE COUNTED THAT
AS AN ERROR?
A. I WOULD NOT HAVE COUNTED THAT AS A SIGNIFICANT ERROR.
BUT IF THEY HAD WRITTEN IN AN ORAL STATEMENT AS OPPOSED
TO A WRITTEN STATEMENT. WHICH PROFESSOR BALDUS REGARDED AS MUCH
MORE DAMAGING. THEN. I WOULD HAVE REGARDED THAT AS A SIGNIFICANT
ERROR, THAT THEY HAD MISREAD THE INFORMATION IN THE FILE, AND I
WOULD HAVE REQUIRED THAT THEY GO BACK AND CHECK ALL THEIR CASES
THEY HAD CODED FOR THE DAY.
THE COURT: WHICH TYPE OF STATEMENT DID PROFESSOR
BALDUS THINK WAS MORE DAMAGING?
THE WITNESS: A WRITTEN, WRITTEN, SIGNED STATEMENT AS
OPPOSED TO AN ORAL STATEMENT.
THE COURT: IN PASSING, I WILL NOTICE THAT I WOULD MUCH
RATHER HAVE AN ORAL STATEMENT THAN A WRITTEN ONE. I HAVE NEVER
SEEN A WRITTEN STATEMENT THAT COULDN“T BE IMPEACHED.
BY MR. FORD:
@. WELL, WITH REGARD TO YOUR CODING, YOUR CONCERN WAS NOT WHICH
WAS MORE OR LESS IMPORTANT. BUT SIMPLY WHAT WAS ACCURATE?
‘A. THAT’3 RIGHT.
@. DID YOU HAVE ANY, NEVER MIND.
MOVING ONTO PAGE 28. PLEASE. CONCERNING MOTIVE, I
GUESS, IS THIS A NEW QUESTION OR A CONTINUATION OF THE PREVIOUS
ONE?
{
GATES - DIRECT
A. THIS IS A CONTINUATION OF THE PREVIOUS QUEST JON. AND YOU
EMPLOY THE SAME CODE AS NUMBERS 1 THROUGH 33 AND YOU ENTER THE
INFORMATION IN THE SAME WAY.
@. OKAY, SO THEN A SINGLE STATEMENT COULD CONTAIN MORE THAN ONE
RELEVANT ITEM HERE IN TERMS OF ITS SUBSTANTIVE CONTENT? I TAKE
IT BY THESE 33S, THE FACT THERE’S THREE 33“S HERE. WHAT DOES
THAT INDICATE, ON THE LEFT-HAND COLUMN OF THESE TWQ PAGES?
A. I THINK ACTUALLY THAT THERE IS A DIFFERENCE BETWEEN THOSE
TWO QUESTIONS. IN FACT, WITH REGARD TO SUBSECTION B, CONCERNING
MOTIVE, YOU WOULD ENTER IN AS MANY AS APPLIED ON THAT PAGE.
WITH REGARD TO SUBSECTION A, CONCERNING THE EVENT, I
BELIEVE THAT, THAT THESE QUESTIONS WERE ORGANIZED IN A
HIERARCHY. AND THAT YOU WOULD ENTER THE ONE THAT WAS, THE
STATEMENT THAT THE DEFENDANT MADE THAT WAS HIGHER ON THE LIST,
EXCEPT IN THE CASE WHERE THERE WERE STATEMENTS THAT WERE CLEARLY
CONFLICTING AND THEN YOU WOULD ENTER BOTH OF THE STATEMENTS.
@. PAGE 23 OF THE INSTRUCTIONS, DOWN, DOWN AT THE BOTTOM OR
ABOUT TWO-THIRDS OF THE WAY DOWN TO THE BOTTOM, BY &43A?
A. THAT REFLECTS WHAT I JUST SAID.
@. THANK YOU.
BOTTOM OF 28, SOME MORE. WHAT ARE THOSE, SECTION C,
CONCERNING STATEMENTS, JUST BRIEFLY AND GENERALLY, WHAT DOES
THAT DEAL WITH, IF ANYTHING?
THE COURT: OBVIOUS TO ME EXCEPT 43D.
MR. FORD: THANK YOU, YOUR HONOR.
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THE COURT: IN VIEW OF WHAT YOU SAID EARLIER, I WOULD
LIKE TO HEAR THE WITNESS COMMENT ON THE CODING DECISION.
THE WITNESS: 43D WOULD ONLY BE ANSWERED IF 63 WERE
ANSWERED AFFIRMATIVELY.
THE COURT: 63 WHAT?
THE WITNESS: JUST 43, WITHOUT ANY LETTER AFTER IT.
THE VERY FIRST QUESTION, DOES THE FILE INDICATE THAT
THE STATEMENT WAS MADE TO AUTHORITIES BY THE DEFENDANT.
NOW. THE FILE INDICATED SUCH A STATEMENT. AND THAT. IN
THAT CIRCUMSTANCE, YOU WOULD ANSWER 43D.
THE COURT: D, WE’RE TALKING ABOUT, DOG?
THE WITNESS: YES.
THE COURT: D - DOG. IF I UNDERSTAND WHAT HAS BEEN
DISPLAYED EARLIER, HE HAS A STATEMENT WITH A DEFENSE CLEARLY
ASSERTED. THAT IS SHOWN IN FOIL 393.
AT 43D, WHICH IS FOIL 429A, THE QUESTION, WERE THE
DEFENDANT”S STATEMENTS CONSISTENT WITH THE THEORY OF DIMINISHED
RESPONSIBILITY, I.E., VOLUNTARY MANSLAUGHTER OR INVOLUNTARY
MANSLAUGHTER. AND THE CODER HAS SAID. NO.
THERE IS A FOSSIBILITY UNDER WHICH THAT COULD BE THE
RIGHT ANSWER AND ANOTHER POSSIBILITY UNDER WHICH THAT COULD BE
THE WRONG ANSWER, BUT I DON’T WANT TO SPECULATE. I WANT YOU TO
TELL ME WHAT YOU THINK BASED ON THE WAY THEY WERE SUPPOSED TO BE
CODING THEM. ABOUT THE CODING DECISION MADE ON THAT CASE.
THE WITNESS: OKAY. WELL, DOESNT IT SEEM THAT THEY
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COULD HAVE ANSWERED THAT -- YES, YES. IN THIS CASE, THE
DEFENDANT WAS CLAIMING THAT. I THINK, THAT THERE WAS A MATTER OF
COERCION THERE, SO HE ADMITTED THAT HE COMMITTED THE HOMICIDE.
BUT THAT HE WAS FORCED, UNDER THREAT OF HIS LIFE OR SOMETHING
LIKE THAT TO DO IT.
THE COURT: COMPULSION.
THE WITNESS: PARDON ME?
THE COURT: CONPULSION.
THE WITNESS: COMPULSION.
THE COURT: AND S07?
THE WITNESS: AND I DON’T THINK THAT THAT STATEMENT IS
CONSISTENT WITH A THEORY OF VOLUNTARY OR INVOLUNTARY
MANSLAUGHTER: ALTHOUGH IM NOT --
THE COURT: THAT/S PROBABLY THE RIGHT ANSWER ON THE
MULTI-STATE. BUT I WANT TO KNOW WHETHER THAT IS THE WALKING
ORDERS UNDER WHICH THE CODERS WERE OPERATING. THAT’S A FAIRLY
SUBTLE CRIMINAL LAW DISTINCTION, AND I SEE IT, AND I THINK
THATS A FAIR ANSWER, BUT I“M TRYING TO FIND OUT WHETHER THE
CODERS WERE MAKING THAT SUBTLE A DISTINCTION OR WHETHER HE JUST
LOST HIS CONCENTRATION AND FORGOT ABOUT THE COMPULSION DEFENSE.
BY MR. FORD:
R. MAY I ASK A ——
THE WITNESS: YOU‘RE ASKING FOR SOME REAL SPECULATION.
THE COURT: WELL. I“M REALLY GOING AT IT IN THE SENSE
YOU TESTIFIED EARLIER, THERE WAS A LAW BOOK THERE, AND THAT SORT
GATES - DIRECT
OF THING. WERE Y- ALL MAKING LEGAL JUDGMENTS LIKE THIS, WHICH IS
fi
A PRETTY FINE LEGAL JUDGMENT FOR A SOCIAL SCIENCE STUDY. WERE
Y7ALL MAKING THAT FINE LEGAL JUDGMENT?
THE WITNESS: WELL, WHERE IT AROSE IS THAT THEY WOULD
BE CONFRONTED WITH THIS. AND THERE WAS WAS A CRIMINAL CODE
THERE, AND IF THERE WAS A QUESTION ABOUT WHAT INVOLUNTARY OR
VOLUNTARY MANSLAUGHTER WAS UNDER THE CODE. THEN THEY WERE
INSTRUCTED TO CONSULT THE CODE.
THE COURT: ALL RIGHT.
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@. DO YOU KNOW WHETHER YOU CAN GET TO VOLUNTARY OR INVOLUNTARY
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12 MANSLAUGHTER UNDER GEORGIA LAW, THROUGH A COERCION THEORY?
13 A. I DON‘T HAVE ANY IDEA RIGHT NOW.
14 @. WE“RE PROBABLY THE ONLY TWO PEOPLE IN THE COURT WHO DON’T.
13 DO YOU KNOW IF UNDER GEORGIA LAW DIMINISHED
16 RESPONSIBILITY IS A SPECIFIC DEFENSE HAVING TO DO WITH SOME KIND
17 OF MENTAL DEFECT OR INTOXICATION, OR IS IT A MORE GENERAL TERM?
18 DO YOU RECALL THAT AT THIS TIME?
i 19 A. NO, I DON’T RECALL THAT.
20 MR. FORD: PERHAPS WE CAN CLEAR THAT UP, YOUR HONOR.
21 BY MR. FORD:
22 @. PAGE 29, FILE INDICATES THE CO-PERPETRATOR GAVE A STATEMENT
23 IMPLICATING THE DEFENDANT, SOME STATEMENTS ABOUT THAT. I GUESS,
24 WHERE ARE WE, CO-PERPETRATOR STATEMENT. I GUESS. 664A AND B., THE
25 CODING ON THAT?
204
GATES - DIRECT
1 A. THAT WOULD BE NO, THE CO-PERPETRATOR NEVER GAVE A STATEMENT
2 IMPLICATING THE DEFENDANT. THATS WHY THATS CODED "2".
@R. THEN 6357
A. THEN THIS QUESTION ASKS WHETHER OR NOT THERE IS A WITNESS
WHO HEARD AN INCRIMINATING REMARK BY THE ACCUSED OR A
3
4
3
® & CO-PERPETRATOR. AND THE ANSWER TO THAT WAS YES. AND THE WAY TO
7 CODE THE QUESTION IS IF YOU LOOK AT THE CODE WHICH IS LISTED
8 UNDER &5A AND B, THAT LISTS THE TYPES OF STATEMENTS THAT THE
@ DEFENDANT COULD HAVE MADE; THERE‘S FIVE CONCRETE POSSIBILITIES
10 AND THEN ONE GENERAL CATEGORY. WHERE YOU CAN SPECIFICALLY WRITE
11 SOMETHING IN.
12 AND THEN 465A REFERS TO REMARKS BY THE DEFENDANT,
13 AND 65B, REFERS TO REMARKS BY THE CO-PERFETRATOR. AND
14 AS INDICATED WITH RESPECT TO THE DEFENDANT, THERE IS A WITNESS
15 WHO HEARD AN ADMISSION OF A KILLING, AND THERE WAS A WITNESS WHO
146 HEARD SOMETHING CONCERNING THE KILLING.
17 AND WITH RESPECT TO THE CO-PERPETRATOR. THERE'S A
18 WITNESS WHO HEARD AN ADMISSION OF KILLING.
RS 19 @. PAGE 30, SCIENTIFIC EVIDENCE. WOULD YOU BRIEFLY GO DOWN
20 WHAT THIS FILE REFLECTS ON THRT?
21 A. YES.
22 THIS FILE REFLECTS THAT THERE WAS SCIENTIFIC EVIDENCE.
23 AND IF YOU“LL NOTE THE TWO COLUMNS IN THE LOWER PORTION OF THE
24 PAGE WHERE YOU ENTER EVIDENCE AGAINST THE DEFENDANT ON THE
25 LEFT-HAND SIDE, AND EVIDENCE AGAINST THE CO-PERPETRATOR ON THE
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RIGHT-HAND SIDE. AND THERE WAS EVIDENCE OF TIRE TRACKS AT THE
SCENE WHICH LINKED BOTH THE DEFENDANT AND THE CO-PERPETRATOR TO
THAT CRIME.
AND THEN THERE WAS EVIDENCE OF, TRACE EVIDENCE THAT,
SPECIFICALLY BLOOD ON CLOTHES, THAT LINKED THE CO-PERPETRATOR TO
THE CRIME.
Q. PAGE 31. TOP OF THE PAGE, &6B, APPARENTLY THAT SOMEHOW IS
LINKED WITH THE PREVIOUS QUESTION?
A. YES. THAT“S A CONTINUATION. IT ASKS THE QUESTION HOW WAS
THAT PROPERTY CONNECTED TO THE ACCUSED, AND THE PROPERTY IS, THE
CODE ON THE PREVIOUS PAGE. EITHER WOULD HAVE BEEN 4, 6. 7 OR 8.
IN OUR CASE, IT WAS 4, THE BLOOD ON THE CLOTHES. AND
CODE IS 3. THAT IS. IT WAS FOUND ON THE DEFENDANT’S PERSON.
@. NUMBER 47. 48, 49, 70, I’M SORRY. 49. DOWN AT THE BOTTOM OF
THAT PAGE, ANYTHING TECHNICAL ON THAT PART?
A. NO, THAT’S PRETTY STRAIGHTFORWARD.
@. PAGE 32. TOP, FIRST TWO ENTRIES ARE MORE FARTS OF 6%.
GENERALLY WHAT DO THOSE DEAL WITH?
A. THOSE ARE A CONTINUATION OF THE QUESTION ON THE OTHER PAGE
ABOUT THE MURDER WEAPON, AND THE TWO AT THE TOP, THE FIRST ONE,
69B, ASKS HOW DID THE POLICE GET WEAFON..
AND THEN THERE“S A SERIES OF ANSWERS THAT YOU COULD
GIVE. THERE’S EIGHT SPECIFIC POSSIBILITIES. AND THEN THERE'S A
GENERAL CATEGORY, IN CASE THERE‘S A POSSIBILITY NOT COVERED BY
THOSE ABOVE.
—— ——— ——— —— ——— ——— ————— ———. —————— ————— — ————— P——————— ————" —— ————— ———— ri
S506
GATES - DIRECT
1 69C, THEN IT ASKS HOW WAS THAT MURDER WEAPON CONNECTED
p TO THE DEFENDANT OR THE CO-FERPETRATOR, AND IT’S SET UP LIKE THE
3 OTHER QUESTIONS WHERE THERE’S A SPECIFIC COLUMN TO ANSWER FOR
EVIDENCE AGAINST THE DEFENDANT, AND EVIDENCE AGAINST THE
CO-PERPETRATOR.
ONCE AGAIN, THERE-’S SPECIFIC POSSIBILITIES. AND THEN
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THERE IS A GENERAL CATEGORY FOR ANSWERING THAT.
@. 70 IS A BALLISTICS REPORT. ANYTHING TECHNICAL THERE?
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A. NO.
10 @. BUT AGAIN. SEVERAL ALTERNATIVES AS TO WHAT COULD HAVE
11 HAPPENED.
12 71, MEDICAL EVIDENCE IN THE FILE. CLARIFYING THE CAUSE
13 OF DEATH. WHAT WAS THAT DEALING WITH?
14 A. WELL, VERY OFTEN THERE WAS A REFORT OF THE MEDICAL EVIDENCE
13 IN THE SUMMARY OF THE POLICE FILES, AND THE QUESTION THAT IS
1&6 ASKED, DID THAT MEDICAL REPORT LINK THE CAUSE OF DEATH TO THE
17 ACCUSED OR THE CO-PERPETRATOR.
13 @. DOES IT ALSO INDICATE ANYTHING ABOUT THE CAUSE OF DEATH
pe 19 ITSELF?
20 A. OH, YES. THE QUESTION, THE QUESTION IS ASKED. WAS THERE A
21 REPORT OF MEDICAL EVIDENCE IN THE FILE THAT CLARIFIES THE CAUSE
22 OF DEATH.
23 @. 72, NATURE OF THE ARREST. I HAVE A "U" FOR THE DEFENDANTS
24 CO-PERPETRATOR IS A "S", APPREHENDED WITHIN 24 HOURS. ANYTHING
23 TECHNICAL THERE?
GATES - DIRECT
A. NOTHING TECHNICAL.
@. PAGE 73 AND 74, TOP OF —--I‘M SORRY -— QUESTION 73 AND 74.
WITNESS WITH INFORMATION ON PREPARATION OR PRECIPITATING EVENTS.
CODED, NOs THE REST OF THE CODING IS BLANK?
A. THE FORMAT OF THIS QUESTION IS VERY SIMILAR TO THE FORMAT OF
THE QUESTIONS WE’VE SEEN BEFORE, AND IF THERE WAS A WITNESS WITH
INFORMATION ON PREPARATION OR PRECIPITATING EVENTS, YOU COULD
ANSWER SPECIFICALLY OR ANSWER IN THE GENERAL CATEGORIES
SUPPLIED.
@. I NOTICE ON MY COPY OF 34 AND ALSO PAGE 35 AT THE TOP, FIRST
RESPONSE IS A NEGATIVE ANSWER. IS THAT A NO, CODED 2, AND THE
REST OF THE PAGE IS BLANK, IS THAT RIGHT?
A. YES. THE SPECIFIC INSTRUCTIONS THERE. ARE TO, AND THEY'RE
VERY OFTEN SPECIFIC INSTRUCTIONS ARE OVERLOOKED WITH RESFECT TO
EACH OF THESE QUESTIONS, BUT ITS DESIGNED SO THAT THEY ASK THE
QUESTION. AND IF IT’S NO, THEN YOU JUST SKIP THE REST OF THE
GUESTION.
@. AND IN THIS ONE, THAT WAS DONE.
MR. FORD: PERHAPS WE CAN THEN, VERY BRIEFLY GO TO THE
STRICKLAND CASE AND A FEW ITEMS THERE THAT WEREN‘’T COVERED HERE,
UNLESS THE COURT WISHES TO HAVE A RECESS.
THE COURT: ALL RIGHT, LET”S BREAK FOR ABOUT TEN
MINUTES, AND WE-LL COME BACK AND WORK UNTIL ABOUT RUARTER TO
ONE.
MR. FORD: THANK YOU, YOUR HONOR.
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GATES - DIRECT
2 {RECESS TAKEN.)
3 THE COURT: ALL RIGHT. SIR, I PRESUME WE“RE GOING TO
4 EG-6B, FOR ILLUSTRATION, THAT YOU MOVE IN EVIDENCE FOR THAT
9 PURPOSE?
b MR. FORD: YES, YOUR HONOR, I DID.
7 THE COURT: MS. WESTMORELAND, YOU HAVE NO OBJECTION?
8 MS. WESTMORELAND: THAT S CORRECT. YOUR HONOR.
? THE COURT: ALL RIGHT, MR. FORD, LET’S SEE, IF WE CAN
10 | JUST DWELL ON THOSE THINGS WHICH WE HAVEN‘T EXPLAINED
11 |PREVIOUSLY.
12 MR. FORD: THANK YOU, THAT’S WHAT WE INTEND, YOUR
13 | HONOR.
14 Sie
15 EDWARD RAYMOND GATES,
16 |BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
17 | TESTIFIED FURTHER AS FOLLOWS:
13 DIRECT EXAMINATION (CONT/D)
é 19 |BY MR. FORD:
20 |@. THE LAST PAGE OF THIS DOCUMENT IS. I THINK YOU PREVIOUSLY
21 | TESTIFIED. A TYPEWRITTEN QUESTIONNAIRE?
22 |A. THAT“S CORRECT.
23 |@. AND HAVE YOU HAD A CHANCE TO REVIEW THAT?
24 |A. YES. I HAVE.
29 @. I BELIEVE YDU-“VE TESTIFIED BEFORE IT APPEARED TO BE SIMILAR
309
GATES - DIRECT
THE KINDS OF THINGS THAT WOULD BE IN A SUMMARY?
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A. THAT’S RIGHT.
@. YOU NEED A MINUTE TO REVIEW IT AGAIN NOW?
A. I WOULD LIKE THAT. YES.
THE COURT: THIS EMBODIES THE TEXAS DEFENSE.
MR. FORD: PERHAPS NOT A COMPLETE DEFENSE IN GEORGIA.
YOUR HONOR.
THE COURT: ONLY PARTIAL.
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BY MR. FORD:
10 @. CALLING YOUR ATTENTION TO THE COVER PAGE OF THAT DOCUMENT,
11 AND JUST FOR CONVENIENCE SAKE, LET'S START AT 1, ARE YOU WITH
12 ME AT 1 ON 5B-6 -- EG-B&6 —-— EG—-6B?
13 A. YES.
14 THE COURT: I HAVE THE SAME PROBLEM.
135 MR. FORD: THANK YOU. YOUR HONOR.
16 BY MR. FORD:
17 Q. CAN WE THEN TURN THROUGH THAT QUESTIONNAIRE TO PAGE 8.
18 NUMBER OF PRIOR CONVICTIONS AND SENTENCES. VERY BRIEFLY WE SEE » 19 SOME CODING IN THIS PARTICULAR ONE. HOW DOES THAT RELATE TO THE
20 KEY INFORMATION UP ON THE TOP OF THE. OF THAT PAGE?
21 A. WELL, STARTING AT THE MATRIX IN THE CRIME CODE. WHICH IS |
22 CATEGORY 1. THE "4", IF YOU LOOK UP TO THE TOP. INDICATES THAT
|
23 THERE“S A PRIOR CONVICTION OF ARMED RUBBERY. |
|
24 AND THEN MOVING ACROSS THE PAGE. AT FOIL NUMBER 82,
23 COLUMN NUMBER 2, YOU ENTER THE ACTUAL NUMBER OF CONVICTIONS. SO
—— ——— Se—— ———— f————— P———— S——" S—————— ———A—— ——— —— — | —
GATES ~ DIRECT
1 THERES ONE PRIOR CONVICTION OF ARMED ROBBERY.
< AND CONTINUING ON, 5 REPRESENTS THE ACTUAL PRISON
3 SENTENCE THAT THE OFFENDER RECEIVED.
4 AND THEN IN COLUMN NUMBER 4, IN THE CASE OF THAT
3 SENTENCE, WAS A PROBATED SENTENCE OR EVEN A SUSPENDED SENTENCE.
® & WE COULD CODE THAT INFORMATION IN BY PUTTING A "P" AFTER THE
7 NUMBER IN THAT COLUMN. SO INSTEAD OF HIM GETTING A FIVE-YEAR
8 JAIL SENTENCE, HE GOT A FIVE-YEAR PROBATED SENTENCE, IN COLUMN 4
9 YOU“D ENTER SP.
10 @. THEN WITH REGARD TO THE TWO ROWS BELOW THAT. 13 AND 147
11 A. THEY REFER TO GENERAL CATEGORIES. 13“S PERSONAL VIOLENT
12 MISDEMEANORS: AND 14°S OTHER MISDEMEANORS. NON-HOMICIDAL AND
13 NON-OMVI TRAFFIC OFFENSES.
14 THE COURT: THIS QUESTION MAY BE FOR IDLE CURIOSITY TOY
13 THAN ANYTHING ELSE. BUT GEORGIA HAS GOT JUST AN INCREDIBLE
1& NUMBER OF EUPHEMISMS FOR ASSAULT WITH INTENT TO COMMIT MURDER.
17 SUCH AS DISCHARGING A FIREARM IN THE CITY LIMITS; POINTING A
13 PISTOL AT ANOTHER. THOSE ARE A COUPLE.
h 19 DO YOU REMEMBER NOW WHETHER OR NOT YOU CHARACTERIZED
20 THOSE AS PERSONAL VIOLENT MISDEMEANORS?
21 THE WITNESS: WELL. WE HAVE THE GEORGIA CLASSIFICATION
22 OF VIOLENT PERSONAL FELONIES AND NON-VIOLENT PERSONAL FELONIES,
23 AND THEY“RE INCLUDED WITH THE INSTRUCTIONS. I DON’T KNOW IF
24 THEY ARE WITH DB-43 OR WITH THE EARLIER SET OF INSTRUCTIONS.
23 THE COURT: OH, I REMEMBER THAT.
S11
GATES - DIRECT
1 BY MR. FORD:
2 @. I THINK THEY'RE APPENDED TO EG-4, IS THAT RIGHT. IN YOUR
COPY, MR. GATES?
THE COURT: PAGE 57?
THE WITNESS: YES.
3
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5
® 6 THE COURT: OF THE APPENDIX?
7 MR. FORD: WOULD BE —-
a THE COURT: OKAY, I SEE MY ANSWER. GO AHEAD.
9 |BY MR. FORD:
10 |@. WE MOVE AHEAD THEN. ANYTHING ELSE TECHNICAL, NEEDS
11 |EXPLAINING ON THAT PAGE 97
12 |A. IF I COULD POINT OUT TWO THINGS JUST FOR CLARIFICATION.
13 ONE THAT IF THE PERSON WERE CONVICTED OF FOUR ARMED
14 |ROBBERIES. AT FOUR DIFFERENT TIMES, THE PROPER CODING IN THE
1S | QUESTIONNAIRE WOULD BE A "4" AT FOIL 81, AND IF IT WAS FOUR
16 | DIFFERENT TIMES, YOU WOULD STILL CODE "4" FOR THE NUMBER OF
17 | CONVICTIONS. THAT WAY, YOU COLLAPSE A LOT OF INFORMATION INTO A |
18 | SINGLE PAGE.
® 19 AND THEN ALSO A MATTER OF CLARIFICATION, QUESTION 31
20 |DISTILLS OUT SOME OF THAT INFORMATION THAT YOU JUST LOST IN
51 | COLLAPSING THAT. GND IT ASKS THE QUESTION WHAT ARE THE NUMBER OF
22 TIMES THAT THE PERSON HAS BEEN INCARCERATED FOR A FELONY. NOW.
23 WHAT THAT MEANS, AND I THINK THESE INSTRUCTIONS ARE EMBODIED IN
24 THE INSTRUCTIONS IN THE QUESTIONNAIRES, BUT WHAT THAT MEANS IS
23 THAT IF YOU COMMITTED THREE CRIMES AT ONE TIME AND WERE
GATES - DIRECT
CONVICTED OF ALL THREE. AND THEN SENTENCED TO PRISON FOR THE
COMMISSION OF THOSE CRIMES, THAT WOULD COUNT AS ONE TIME,
INCARCERATED FOR A FELONY.
AND SO WHAT THESE REPRESENT ARE SEPARATE COURT
PROCEEDINGS, WHERE YOU WERE CONVICTED AND SENTENCED TO PRISON,
SEPARATE TIMES.
@. I THINK THAT’S CLEAR.
THEN COULD WE TURN AHEAD. THEN, SEVERAL PAGES TO PAGE
NUMBER 13, DEFENDANT“S MOTIVE, WHERE THERE APPEAR TO BE A NUMBER
OF ENTRIES ON MY COPY.
CAN YOU JUST BRIEFLY GQ DOWN THOSE. AND ELUCIDATE WHAT
THOSE NOTATIONS REFLECT?
AS WE DESCRIBED BEFORE, YOU ANSWER EACH OF THESE
QUESTIONS INDIVIDUALLY. AND THERE’S FOUR POSSIBLE ANSWERS 1. 2,
BLANK OR "U". AT FOIL 145, THAT INDICATES THAT IT WAS UNCLEAR.
THAT IT WAS, THAT THE CODER WAS UNABLE TO CLASSIFY AS 1. 2 OR
BLANK, WHETHER OR NOT THERE WAS LONG-TERM HATRED INVOLVED AS A
MOTIVE.
LET ME SAY COLLECTIVELY THAT WHEREVER THERES A BLANK,
THAT MEANS IT WAS INCONSISTENT WITH THE INFORMATION IN THE FILE.
THAT ANY OF THOSE WERE MOTIVES IN THIS CASE.
THE TWO OTHER "US" ARE AT JEALOUSLY AND RACIAL
ANIMOSITY.
AGAIN, THE CODER WAS LINABLE TO CLASSIFY THIS 1, 2, OR
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BLANK.
@. DID YOU NOT JUST ASSUME THAT PEOPLE WHO WERE INVOLVED IN A
LOVERS” TRIANGLE THAT THERE PROBABLY WAS NOT A RACIAL ELEMENT?
A. A RACIAL --
@. THESE PEOPLE WERE MORE LIKELY OF THE SAME RACE THAN
DIFFERENT RACES?
A. NO. WE NEVER ASSUMED ANY QUESTION LIKE THAT. THERE’S
PROBABLY AN UNKNOWN THERE BECAUSE THE CODER DIDN’T KNOW THE RACE
OF ONE OF THE PARTICIPANTS. IT WASN‘T STATED, SO HE WOULD CODE
THAT "“U".
THE COURT: WELL, THIS WOULD BE AN INSTANCE WHERE THERE
WAS NOTHING IN THE FILE TO SUPPORT THE INFERENCE, UNLIKE THE
OTHER CASE. WHERE THEY HAD HIM TELLING FOUR DIFFERENT PEOPLE AND
| YOU MIGHT BE ABLE TO DRAW INFERENCES ABOUT WHAT HE SAID. BUT
HERE YOU HAVE ABSOLUTELY NOTHING TO INDICATE DIFFERENT RACES.
BUT BECAUSE YOU DON’T HAVE COMPLETE INFORMATION TO DISREGARD
THAT AS A POSSIBILITY. YOU HAVE SHOWN IT AS A "U".
THE WITNESS: THAT'S RIGHT.
THE COURT: I WONDER ~—-—
THE WITNESS: I MIGHT ADD ——
THE COURT: I WONDER IF YOU DON‘T THINK THE ENTRY AT
138 IS UNDULY CONSERVATIVE?
THE WITNESS I DONT THINK IT IS, ACTUALLY. ON A
READING OF THE SUMMARY, IT’S, IT’S AT LEAST SUGGESTED BY THE
DEFENDANT THAT THE VICTIM WAS ESTRANGED FROM HIS WIFE, AND IT
GATES - DIRECT
1 MIGHT HAVE BEEN VERY CLEAR THAT THE WIFE’S LOYALTIES LAY WITH
2 THE DEFENDANT. SO HE WOULDN‘T NECESSARILY HAVE BEEN JEALOUS WITH
3 THE, JEALOUS VICTIM.
4 THE COURT: ALL RIGHT.
be BY MR. FORD:
, 6 @. QUESTION 40. WE DO HAVE THIS EXPRESSLY STATED. IMMEDIATE
7 RAGE. IS THAT RIGHT?
8 A. YES.
? @. SPECIAL PRECIPITATING EVENTS, AGAIN EXPRESSLY STATED, SAME
10 |KIND OF CODING?
11 |A. THAT’S CORRECT. AND THIS. THE KIND OF SUBTLETY YOU WERE
12 | INTERESTED THERE IS EMBODIED IN THIS QUESTION, WHERE THEY CODED
13 | THAT THERE WAS A LOVERS’ TRIANGLE. THERE WERE THREE PEOPLE
14 | INVOLVED. BUT YOU COULDN’T NECESSARILY MAKE THE INFERENCE ABOUT
1S | JEALOUSY, BUT YOU STILL HAVE THE INFORMATION THAT WAS THE
16 |SITUATION IN THIS CASE.
17 |@. LET’S MOVE ON TO PERHAPS TO PAGE 15, THEN, SPECIAL
18 | AGGRAVATING FEATURES OF THE OFFENSE. WE HAVE “2" CODED THERE ON |
R 19 |MY COPY, © AND 207 |
20 |A. THATS CORRECT. 9 REPRESENTS —-—
21 THE COURT: EXCUSE ME, COUNSEL. LET ME MAKE A NOTE
22 | BEFORE WE GO AHEAD.
23 MR. FORD: CERTAINLY. YOUR HONOR.
24 THE COURT: NOW, WHAT PAGE ARE YOU ON?
23 MR. FORD: 13.
GATES - DIRECT
1 BY MR. FORD:
2 Bl. TWO CODINGS., 9 AND 207?
3 A. THAT’S CORRECT. 9, WELL, 172 REPRESENTS MULTIPLE STABBING.
AND SO THAT THE INFORMATION WOULDN“T BE LOST FROM THE CODING
PROCESS, THERE’S A SPACE NEXT TD THAT QUESTION, WHERE YOU CAN
CODE IN THE NUMBER OF STABBINGS. AND THE INSTRUCTIONS CLEARLY
SET OUT THAT "MULTIPLE" MEANS MORE THAN ONE, BUT THAT YOU SHOULD
ENTER THE SPECIFIC NUMBER AT THAT PLACE IN THE
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RUESTIONNAIRE.
10 AND THEN 20 REPRESENTS VICTIM KILLED IN PRESENCE OF
11 FAMILY MEMBERS OR CLOSE FRIENDS, AND THATS CLEAR FROM THE FILE.
12 Q. DO YOU RECALL IN THE DEFINITION THERE WE TALKED A LITTLE BIT
13 ABOUT PRESENCE BEFORE, DO YOU RECALL IN THE INSTRUCTIONS IF
14 |THERE’S A SPECIFIC DEFINITION OF "PRESENCE" FOR THIS PURFOSE.
15 PRESENCE OF FAMILY MEMBERS?
16 A. I WOULD HAVE TO CHECK TO 3EE IF IT“S THE SAME.
17 @. REFER YOU TO PAGE 18 OF DB-43, DOWN TOWARD THE BOTTOM.
18 NUMBER 207
p 19 A. YES. THERE'S A SPECIFIC DEFINITION FOR "PRESENCE" THERE.
20 "PRESENT" --, "PRESENCE" MEANS TO SEE THE ACT THAT KILLED THE
21 VICTIM, OR TO BE VERY CLOSE, AND ALTHOUGH NOT SEEING THE ACT.
22 SEEING THE VICTIM DYING.
23 @. FART B, I HAVE AN ENTRY, A "U" ON FOIL NUMBER 179, VICTIM
24 PLEADED FOR LIFE?
23 A. THAT’S CORRECT.
—— S—. S—— —— ———————
GATES — DIRECT
1 @. COULD WE TURN BACK FOR A MOMENT TO DB-43 AT PAGES. PAGE 13
2 OF DB-43. DOWN ABOUT TWO-THIRDS OF THE WAY. DOWN THE PAGE.
3 THERE ARE A SERIES OF VARIABLES. DO YOU FIND A STATEMENT TO
4 THAT EFFECT?
3S A. YES, I DO.
& Q. CAN YOU SUMMARIZE FOR THE COURT WHAT THAT SECTION OF THESE
7 INSTRUCTIONS DEALS WITH? DOES THAT APPLY TO THESE QUESTIONS
3 WE'RE TALKING ABOUT BACK IN THE QUESTIONNAIRE?
2 A. YES, IT DOES.
10 @. CAN YOU DESCRIBE TO THE COURT WHAT IT SAYS, OR PERHAPS THE
11 COURT WOULD LIKE A MOMENT TO READ IT. I DON’T THINK THERE’S A
12 NEED TO SUMMARIZE.
13 THE COURT: WELL, THAT SEEMS TO GO BACK TO OUR LOVERS’ TRIAN
14 SITUATION, PAGE 1357
15 MR. FORD: YES. YDUR HONOR. I1-°VE GOT LOVERS” TRIANGLE.
146 ON 15S. BUT I’M REFERRING THE WITNESS DOWN A COUPLE PARAGRAPHS
17 FROM THERE TO A LARGER BLOCK PARAGRAPH. BEGINNING THERE ARE A
18 SERIES OF VARIABLES WHERE IT IS DIFFICULT TO DETERMINE IF THE
ro 19 | APPROPRIATE CODING SHOULD BE A BLANK OR "U".
20 THE COURT: ALL RIGHT.
21 MR. FORD: PERHAPS ‘IT 1S. DOES THAT SECTION GO ON FOR A
22 PAGE OR TWO?
23 THE WITNESS: YES, IT DOES. IT GOES TO THE BOTTOM OF
24 PAGE 16.
25 BY MR. FORD:
=17
GATES = DIRECT
1 @. YOU THINK YOU CAN MORE BRIEFLY SUMMARIZE THAT RULE AS STATED
2 THERE. THAN TO PICK OUT EVERY LINE OF IT, OR PERHAFS WE SHOULD
3 WAIT A MINUTE?
A. I THINK IT’S CLEAR THAT'S STATED THERE.
THE COURT: ALL RIGHT, LET’S MOVE AHEAD, MR. FORD.
MR. FORD: WELL, I WAS DOING SOME READING MYSELF, YOUR
BY MR. FORD:
4
5
5
7 HONOR.
8
bd @. IS THERE AN ERROR WITH THIS "U" REGARDING THAT RULE AND
0 STATED ON THOSE PAGES AND THE SUMMARY. —.
11 THE COURT: THE "U" AT 149 —= 1797
22. 4] MR. FORD: THE "U" AT 179, VICTIM PLEADED FOR LIFE.
13 THE WITNESS: WELL, --
|
14 BY MR. FORD:
13 R. CAN YOU APPLY THAT RULE?
14 A. AGAIN, I FEEL AT A LOSS WITHOUT THE AMBIGUITY SECTION,
17 BECAUSE THAT’S THE PLACE THAT DIFFERENT CODING IS MEANT TO BE
18 EXPLAINED. BUT IT’S POSSIBLE THAT IT IS AN ERROR.
bs 19 AND THE WAY THAT YOU WOULD APPLY THE RULES IN THIS
20 SITUATION, IS THAT IF THERE WERE NO WITNESSES AT THE SCENE OF A
21 HOMICIDE, THEN THERE. IT WOULD BE VIRTUALLY IMPOSSIBLE TO TELL
22 WHETHER OR NOT THE VICTIM PLED FOR LIFE, UNLESS THE DEFENDANT
23 OFFERED YOU THAT INFORMATION.
24 IN THAT CASE, WHERE THERES NO WITNESSES WHO COULD HAVE
23 HEARD IT, THEN YOU WOULD ALMOST ALWAYS CODE A "UU", NEXT TQ
GATES - DIRECT
1 VICTIM PLEADED FOR LIFE.
2 IF, ON THE OTHER HAND, THERE WERE SEVERAL WITNESSES AT
3 THE SCENE, AND YOU KNOW THAT THOSE WITNESSES GAVE STATEMENTS,
WHAT THIS SET OF INSTRUCTIONS DOES IS DIRECTS YOU TO CORE IT AS
INCONSISTENT WITH, WITH THE FILE THAT THE VICTIM PLEADED FOR
LIFE, BECAUSE HAD THE VICTIM PLEADED FOR LIFE, THAT WOULD BE THE
KIND OF INFORMATION THAT THE WITNESSES WOULD HAVE LIKELY
REPORTED TO THE POLICE AND IT WOULD HAVE MADE ITS WAY INTO THE
,
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FILE.
10 THE COURT: AND IN THIS CASE, THERE WAS A WITNESS, I
11 GUESS THIS IS WHAT MR. FORD IS SUGGESTING, THAT AS THERE WAS A
12 WITNESS AND AS THERE IS NOTHING AT LEAST ON THE SUMMARY THAT
13 SUGGESTS THAT THERE WAS A PLEA FOR LIFE, THEN IT SHOULD HAVE
14 BEEN CODED INCONSISTENT WITH INFORMATION IN THE FILE. IS THAT
15 YOUR SUGGESTION?
16 MR. FORD: WELL, I“M CERTAINLY NOT TRYING TO SUGGEST
17 THAT, BUT I ——
13 THE COURT: IS THAT YOUR CONCERN?
® 19 MR. FORD: MY MAIN CONCERN IS TO ILLUSTRATE THE RULES
20 AND I WOULD LIKE TO ASK MR. GATES WHAT HE THINKS ABOUT THAT.
21 THE WITNESS: WELL, LIKE I SAID, I CANT TELL WITHOUT
22 READING THE AMBIGUITY SECTION, BECAUSE MY UNDERSTANDING OF THE
23 CRIME IS THAT THEY PULLED INTO THE SISTER OR SISTER-IN-LAW’S
24 DRIVEWAY AND THE DEFENDANT GOT OUT OF THE CAR AND HE HAD A
25 KNIFE, AND THE VICTIM WAS UNARMED AND I DONT KNOW IF THE OTHER
GATES ~ DIRECT
PERSON GOT OUT OF THE CAR OR WATCHED FROM THE CAR, DR WHAT KIND
I
OF A VIEW THEY HAD OF IT.
AND S50, THERE'S NO INDICATION AT THE TIME VICTIM WAS
ARMED HERE, SO IT CERTAINLY RAISES THE POSSIBILITY IN MY MIND
THAT IF THE DEFENDANT JUST WALKED UP TO HIM BRANDISHING A KNIFE.
THE VICTIM MIGHT SAY, DON’T DO IT. BUT IF SOMEONE WAS IN THE
CAR, AND I DON’T KNOW IF THE WINDOWS WERE UP OR DOWN, THAT THEY
WOULDN’T BE ABLE TO TELL. AND THATS WHY WE’VE GOT THE
AMBIGUITY SECTION. THATS DIFFICULT FOR ME TO INTERPRET THIS.
@. BUT IN ANY EVENT. THAT ILLUSTRATES HOW YOU WOULD GENERALLY - S
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APPLY THE RULE, AND TRY AND GET IT AS PRECISE AS POSSIBLE?
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A. THAT’S CORRECT. .
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13 @. WE MOVE ON, THEN. A FEW PAGES?
14 THE COURT: I WANT TO ASK ONE QUESTION ABOUT THAT. I
13 WANT TO BE CERTAIN THAT I UNDERSTAND THAT THAT RULE WAS
16 OPERATING ON OFFICIAL VERSION SUMMARIES PREPARED FROM THE POLICE
17 REPORT BY PAROLE OFFICERS?
18 THE WITNESS: THAT’S CORRECT.
8 19 THE COURT: SO YOU’RE DRAWING AN INFERENCE THAT
20 SOMETHING DID NOT OCCUR BECAUSE IT WAS NOT MENTIONED IN THE
21 POLICE REPORT, BUT IN THE LARGE MAJORITY OF CASES, YOU DID NOT
22 HAVE THE POLICE REPORT, BUT INSTEAD ONLY HAD A PAROLE OFFICER’S
23 SUMMARY OF THE POLICE REPORT?
24 THE WITNESS: I“M SORRY, MAYBE I MISUNDERSTOOD YOUR
23 RAUESTION.
me ert © gtara— P— —e————————————. S—— ———— ——— rp——— ——. — ————— —— ———————— —— ST ———— T—— Y——
GATES - DIRECT
1 THE COURT: UNDERLYING THE RULE IS THE HYPOTHESIS THAT
2 THIS IS AN IMPORTANT SORT OF THING, AND IF IT“S NOT MENTIONED IN
3 THE POLICE REPORT, THEN IT MUST NOT HAVE HAPPENED.
4 THE WITNESS: THAT’S CORRECT.
3 THE COURT: OKAY. THAT HYPOTHESIS, HOWEVER. GOES ON TO
w & SAY, AND SINCE IT’S IMPORTANT, THE PAROLE OFFICER IN HIS SUMMARY
7 WOULD HAVE PICKED IT UP, SO THEREFORE. IF IT IS NOT IN THE
3 PAROLE SUMMARY, IT DIDN‘T HAPPEN.
? THE WITNESS: THAT’S CORRECT.
10 THE COURT: ALL RIGHT.
11 BY MR. FORD:
12 @. OF COURSE, FOR CLARIFICATION, IF YOU DREW THE INFERENCE. IF
13 BY APPLYING THAT RULE YOU DREW THE INFERENCE THAT IT DIDN‘T
i4 OCCUR. WHAT WOULD BE THE CODING, WOULD THAT BE A "U" OR A BLANK?
15 A. IT WOULD BE BLANK.
16 @. THE "U" WOULD OCCUR THEN. WHEN?
17 A. THE WAY HE STATED TO ME, I THOUGHT. WAS THAT IF YOU DREW THE
13 INFERENCE THAT IT DID NOT OCCUR, THEN IT WOULD BE BLANK, THAT
19 WOULD BE INCONSISTENT WITH THE INFORMATION IN THE FILE.
20 A "U" WOULD OCCUR FOLLOWING THE RULES. IF YOU COULDNT
21 CODE IT AS BLANK, OR 1 OR 2. THAT AFTER DRAWING THAT INFERENCE.
22 THAT”S THE SITUATION THAT YOU‘RE LEFT IN. THAT YOU CAN‘T CODE IT
23 1, 2 OR BLANK.
24 THE COURT: I UNDERSTAND THAT. BUT LET ME MAKE SURE.
25 IF IT IS NOT MENTIONED, IF ITS THE KIND OF INFORMATION
GATES - DIRECT
THAT WERE TALKING ABOUT UNDER THIS RULE, AND IT“S NOT MENTIONED
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IN THE FILE AT ALL. THE PROCEDURE, THE PROTOCOL DIRECTS YOU TO
ASSUME THAT SINCE IT“S NOT IN THE FILE. IT DID NOT OCCUR. SO
THEREFORE YOU LEAVE IT BLANK, YOUR CODING IS BLANK?
THE WITNESS: THAT“S RIGHT, BUT THAT’S A LIMITED
STATEMENT OF THE RULE IN THAT THE RULE ISN‘T JUST IF IT”S NOT A
FIT FILE: THE RULE IS, IF THERE WERE WITNESSES PRESENT WHO WOULD
LIKELY HAVE SEEN THE INFORMATION, OR IF IT”S PHYSICAL EVIDENCE
THAT THE POLICE LIKELY WOULD HAVE BEEN ABLE TO VIEW. GET THEIR
HANDS ON, AND THAT SORT OF THING, WITH THAT QUALIFICATION. IF
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11 IT’S NOT IN THE FILE. THEN TREAT IT AS THOUGH IT -— AS THOUGH IT
12 DIDNT EXIST.
13 THE COURT: I UNDERSTOOD THAT.
14 THE WITNESS: OKAY.
15 THE COURT: ALL RIGHT.
146 BY MR. FORD:
47 R. JUST IN GENERAL, WE'VE HAD A LITTLE DISCUSSION OF THESE
18 PAROLE OFFICER REPORTS AND SUMMARIES. THE POLICE REFORTS. ABOUT
ay HOW LONG AND DETAILED WERE THOSE, IN GENERAL, BASED ON YOUR
20 EXPERIENCE WITH THE NUMBERS OF THEM YOU’VE SEEN?
21 A. WELL. THEY REALLY VARIED WITH THE, PRETTY MUCH WITH THE
22 AGGRAVATION OF THE HOMICIDE, AND IF YOU HAD A VEHICULAR
23 HOMICIDE, YOU MIGHT GET A PARAGRAPH THIS LONG. THAT'S ABOUT 3
24 INCHES LONG.
23 WHEREAS. IF YOU HAD A VERY AGGRAVATED CASE, THIS. OF
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GATES - DIRECT
COURSE, COULD GO ON FOR FOUR OR FIVE PAGES. SINGLE SPACED.
TYPEWRITTEN.
@. NOW, WITH REGARD TO THE PHILOSOPHY BEHIND THIS, RATHER THAN
THE APPLICATION OF IT WITH WHICH YOU WERE INVOLVED, WHOSE
RESPONSIBILITY WAS THAT, INTERPRETATION OF THIS DATA?
A. PROFESSOR BALDUS”.
Q@. AND WITH REGARD TO THE INFERENCES THAT WERE DRAWN AND THE
QUESTION OF WHETHER THOSE INFERENCES APPLIED TO THE ACTUAL FACTS
OR THE FACTS AS KNOWN BY THE DECISION MAKERS IN THE CASE. WHOSE
RESPONSIBILITY WAS IT TO DETERMINE THAT ULTIMATE --
A. PROFESSOR BALDUS.
R. =—— CONCLUSION?
MR. FORD: MAY WE MOVE ON THEN, YOUR HONOR?
THE COURT: PLEASE.
BY MR. FORD:
@. PAGE 22.
A. OKAY, 1 THINK WE‘VE SEEN THIS KIND OF CASE BEFORE, AND THE
EXAMPLES OF HOW YOU CODE THEM.
AS APPLIED TO THIS PARTICULAR CASE. ON —-
THE COURT: WHAT PAGE?
MR. FORD: PAGE 22.
BY MR. FORD:
@. FIRST MAY I ASK YOU, I SEE A NUMBER OF "U’S" HERE. NOW
REFERRING BACK TO THE INSTRUCTIONS WE WERE JUST TALKING ABOUT ON
15 AND 14, WERE THESE VARIABLES COVERED BY THAT SPECIFIC RULE WE
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GATES — DIRECT
JUST GOT DONE DISCUSSING, JUST TQ KEEP THINGS CLEAR? WERE THEY
WITHIN THE AMBIT OF THAT PARTICULAR INSTRUCTION WITH REGARD TO
THE MEANING OF THE LETTER "UU"? OR A DIFFERENT RULE?
A. NO, THEY/RE NOT. EXCEPT FOR VARIABLE 296.
THE COURT: THEY ARE NOT COVERED BY THAT RULE?
BY MR. FORD:
@. HOW CAN YOU, FOR THE COURTS INFORMATION, PERHAPS. HOW ARE
YOU ABLE TO DETERMINE WHICH PARTICULAR VARIABLES ARE COVERED
BY THE PARTICULAR RULE WE JUST DISCUSSED?
A. AT THE BOTTOM OF PAGE 14, IT DESCRIBES THE, THE FOILS THAT
ARE SUBJECT TO THAT RULE.
Q. THAT’S PAGE 14 OF THE INSTRUCTIONS? \
A. YES.
@. S0 IT APPLIED TO THAT RULE. THESE ONES THAT ARE NUMBERED
THERE, HOW DOES IT DESCRIBE THEM, BY NUMBER?
A. FOIL NUMBER 162, 143, 1&6, 1&66A, 169, 170, 170- ——
@. I WAS JUST ASKING ABOUT THE MANNER?
A. I’M SORRY.
@. NOT THE NUMBERS. I“M SORRY. THANK YOU.
PERHAPS, WELL, LET“S GO BACK. YOU SAID 2946 WAS ALSO
SUBJECT TO THAT RULE, THAT’S THE ONLY ONE ON PAGE 22, VICTIM HAD
A CRIMINAL RECORD?
A. THAT'S CORRECT.
@. CAN YOU MAKE ONE MORE RUN THROUGH THAT PARTICULAR RULE. AS
APPLIED TO THAT PARTICULAR VARIABLE? HERE WE HAVE A "U", I
GATES - DIRECT
NOTICE. $S0 HOW DO YOU APPLY THAT RULE?
A. THE WAY THAT THIS FITS INTO THAT RULE IS THAT THIS IS, THIS
1S SIMPLY THE TYPE OF CIRCUMSTANCE THAT WE WOULD NOT BE LIKELY
TO COME ACROSS IN THE FILE, IN THE SAME WAY THAT IT’S NOT THE
KIND OF EVIDENCE THAT WOULD BE LIKELY TO BE REVEALED IF THERE
WEREN’T WITNESSES OR SOMETHING LIKE THAT.
WELL, INFORMATION ABOUT THE VICTIM’S CRIMINAL RECORD IS
THE KIND OF INFORMATION THAT WE JUST WOULD LIKELY NOT COME
ACROSS IN THE FILE. |
Q. DO YOU RECALL IF THAT POLICY OR THAT ASSUMPTION OR, WITH
REGARD TO THE VICTIM’S CRIMINAL RECORD APPEARING IN THE FILE.
WAS THAT SOMETHING YOU RECALL BEING FOLLOWED, OR DO YOU RECALL
ANYTHING ABOUT THAT?
A. DH NO.» THAT WAS FOLLOWED.
@Q. SO I TAKE IT THROUGH THE REST OF THESE VARIABLES ON THIS
PAGE 22 WERE NOT COVERED BY A SPECIAL RULE BUT, WHAT RULE THEN
CONTROLLED THE REST OF THOSE "U-S"?
A. THE GENERAL RULE WAS IT EXPRESSLY STATED IN THE FILE. WAS IT
SUGGESTED BY THE FILE, WAS IT INCONSISTENT WITH THE INFORMATION
IN THE FILE, OR UNABLE TO CLASSIFY. THOSE THREE.
R. THAT AS STATED?
A. AS STATED IN THE DIRECTIONS FOR THIS QUESTION.
@. SO BY GENERAL, YOU MEAN THE GENERAL ONE FOR THIS QUESTION AS
STATED THERE?
A. THAT’S CORRECT. WELL BY GENERAL I MEANT THAT APPEARS IN MANY
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GATES - DIRECT
QUESTIONS THROUGHOUT THE QUESTIONNAIRE. THE FORMAT.
@. LET ME JUST ASK ONE LAST QUESTION ON THIS TO CLARIFY.
; WOULD YOU CONSIDER THIS MATTER. THE SET OF ASSUMPTIONS
THAT WE JUST WENT OVER IN THESE TWO VARIABLES. IS THAT A
SEPARATE DIFFERENT RULE, OR 1s THAT SOMETHING THAT JUST
SUPPLEMENTED THESE KIND OF SPECIFIC CODING INSTRUCTIONS? DID
YOU FIND AN INCONSISTENCY BETWEEN THOSE OR ——
A. NO. I DON’T FIND ANY INCONSISTENCY BETWEEN THEM. IN FACT,
THE WAY I VIEW THAT RULE IS A SPECIFIC WAY OF POINTING OUT SOME
OF THE DIFFICULT FOILS. PARTICULARLY POINTING TO DIFFERENT
PLACES IN THE FILE THAT ARE GOING TO BE DIFFICULT TO CODE
BECAUSE OF VARIATIONS IN AVAILABILITY OF DATA IN THE FILES. AND
I VIEW THAT RULE AS BEING CONSISTENT WITH THE WAY THAT THE REST
OF THE QUESTIONNAIRE WAS CODED, BUT THAT. THAT IT IS REALLY SET
OUT LIKE THAT 30 IT’S CLEAR AND IT CAN POINT TO THOSE REALLY
TOUGH PLACES.
@. AGAIN, THAT WAS ONE OF THOSE THINGS THAT WAS DISCUSSED. MADE
AVAILABLE, FOLLOWED. IN YOUR EXPERIENCE?
A. ABSOLUTELY.
@. ANYTHING PARTICULARLY TECHNICAL OR DIFFICULT, OTHER THAN THE
FACT THAT APPARENTLY A LARGE NUMBER OF THESE VARIABLES COULDN'T
BE CLASSIFIED ON THIS. THE REST OF 227
A. NO.
I MEAN THERE ARE SPECIFIC INSTRUCTIONS FOR, FOR
PARTICULAR ITEMS ON THIS LIST.
—— > ————————_ —— Yr ———" {r—— p—— — — — —— p——— ——— ———— — —
3526
GATES - DIRECT
-
@. WITH REGARD TO, I SEE, I HAVE 1, 2 IN COLUMN, IN THE
LEFT-HAND COLUMN, HISTORY OF BAD BLOOD. 2, SUGGESTED BY THE
FILE, BUT NOT SPECIFICALLY INDICATED. DO YOU HAVE ANY PROBLEM
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WITH THAT ON THIS SUMMARY?
A. WELL. IN FACT. I MIGHT. AGAIN I WISH I HAD THE AMBIGUITY L]
SECTION SO I COULD MAKE A BETTER DETERMINATION. BUT WHATS
HAPPENED HERE 1S THAT THE DEFENDANT HAS CLAIMED POST CONVICTION
THAT THE VICTIM HAD PREVIOUSLY THREATENED HIM.
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ITS NOT CLEAR FROM THE SUMMARY HOW MANY TIMES THAT HAD
10 BEEN OR ANYTHING LIKE THAT.
11 AND RIGHT AFTER THAT IT SAYS NEITHER INCIDENT IS
12 SUBSTANTIATED BY THE POLICE REPORT.
13 NOW, I DON‘T KNOW IF THAT MEANS THE INCIDENT DOESN-T
14 EXIST IN THE POLICE REPORT OR THAT THERE-S CONFLICTING EVIDENCE
15 IN THE POLICE REPORT. IT SEEMS TO ME IT PROBABLY JUST DIDN”T
16 EXIST IN THE POLICE REPORT.
17 @. CALLING YOUR ATTENTION TO PAGE 22 OF THE INSTRUCTIONS DOWN
18 ALMOST TO THE BOTTOM. NEXT TO FOIL 283, YOU FIND A SPECIFIC
19 INSTRUCTION ON BAD BLOOD. IT“S NOT AN OVERLY TECHNICAL TERM?
20 A. NO IT”S NOT, IT’S CLEAR.
21 @. YOU FIND IT THERE?
22 A. YES.
23 @. WITH REGARD, YOU MENTIONED SOMETHING ABOUT THE DEFENDANTS
24 STATEMENT, GENERAL, I DON’T KNOW IF YOU MENTIONED --
25 A. OH» YES.
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GATES —- DIRECT
Q. WHERE DID THE DEFENDANT-S STATEMENTS IN YOUR HIERARCHY, OF
CREDIBLE INFORMATION, WHERE DID DEFENDANT’S STATEMENTS RANK FOR
THIS SORT OF THING?
A. THERE“S A SEPARATE RULE. AND THAT IS THE DEFENDANTS MAKE
POST CONVICTION STATEMENTS THAT ARE IN THEIR PERSONAL HISTORY
EVALUATIONS AND SO ON, AND THE RULE FOR THAT CIRCUMSTANCE IS
THAT IF THE DEFENDANT SAYS SOMETHING OCCURRED. WHAT IT DOES IS,
IT RAISES A POSSIBILITY. BUT YOU JUST PLAIN DON‘T BELIEVE IT.
UNLESS IT’S AN INCULPATORY STATEMENT. SO FOR ALL EXCULPATORY
STATEMENTS. IF THE DEFENDANT SAID SOMETHING LIKE I WAS REALLY
DRUNK DOR SOMETHING LIKE THAT. THAT WOULD RAISE THE ISSUE, AND
YOU WOULD CODE THAT FOIL A "U", AS AN UNKNOWN.
THE COURT: UNLESS IT WAS CORROBORATED.
THE WITNESS: THAT’S RIGHT.
NOW. WHEN YOU WERE ASKING ME ABOUT THE "2" HERE. AND
THE REASON I WISH I HAD THE, THE AMBIGUITY SECTION IS THAT. I
MEAN IN ALL THE CASES IN THIS FILE, THE CODERS CODED "“U" IN ALL
THOSE CASES WHERE THOSE ISSUES WERE RAISED. IT WAS UNKNOWN IF
THERE WAS A PHYSICAL ASSAULT, OR PHYSICAL THREAT OR SOMETHING
BEFORE, AND SHE PARTICULARLY HAS TAKEN ONE OF THOSE THINGS AND
CODED A "2" THERE AND SAID THEY DID HAVE A HISTORY OF BAD BLOOD.
sO IT IS BASED ON THE OTHER CONSISTENT CODING IN THE
QUESTIONNAIRE, THERE-S AN INFERENCE TO ME THAT SHE HAD A REASON
FOR DOING THAT AND THAT WAS SOMEHOW CORROBORATED SOMEWHERE IN
THE FILE.
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GATES - DIRECT 2
BY MR. FORD:
@. BUT AS A “2" IT SUGGESTED NOT EXPRESSLY STATED?
A. THAT'S RIGHT.
R. THANK YOU. THAT WINDS THAT UP.
CAN WE MOVE TO PAGE 247? I THINK THAT GETS US INTO THE
STRENGTH OF EVIDENCE SECTION, AND I BELIEVE THAT’S ONE OF THOSE
QUESTIONS THAT WE DIDN’T HAVE ANYTHING TO WORK WITH IN TERMS OF
YOUR ANALYSIS ON THE PREVIOUS QUESTIONNAIRE.
CAN YOU GO BRIEFLY OVER THE CODING THERE?
A. YES, I CAN.
THE CODING IN THIS. FOR THIS PARTICULAR QUESTIONNAIRE
IS AT FOIL NUMBER 324, WHICH IS COLUMN NUMBER 2. THE CODING IS
2, AND WHAT THAT INDICATES IS THAT THERE WERE TWO CIVILIAN
WITNESSES WHO, AND IF YOU LOOK TO THE CATEGORY THAT THAT'S
ASSOCIATED WITH. IDENTIFIED THE ACCUSED AS THE PERSON COMMITTING
THE ACT THAT RESULTED IN A HOMICIDE.
AND AS YOU CAN SEE, THERE ARE VARIOUS LEVELS OF THINGS
THAT THE WITNESS COULD HAVE IDENTIFIED. THEY COULD HAVE
IDENTIFIED THE ACCUSED AS SOMEONE WITH A WEAPON AT OR NEAR THE
TIME OF HOMICIDE OR SOMEONE WHO IS JUST NEAR THE SCENE OF THE
HOMICIDE. DIFFERENT POSSIBILITIES.
MOVING TO COLUMN NUMBER 3, FOIL 325, THE CODE THERE IS
1 AND THAT‘S UNDER THE CATEGORY OF TYPE OF I.D.., AND IF YOU MOVE
DOWN TO THE BOTTOM OF THE PAGE IT SAYS ON THE LEFT, TYPE OF
I.D., COLUMNS 3 AND 7, AND A "1" INDICATES THAT THE WITNESS
GATES - DIRECT
OBSERVED THE FACE OF THE ACCUSED.
AND THEN MOVING TO COLUMN 4, FOIL 324, THERE'S ALSO A
"1" THERE, AND IF YOU GO DOWN TO COLUMNS 4 AND, THE
INSTRUCTIONS FOR COLUMNS 4 AND 8 AT THE BOTTOM OF THE PAGE. A
ni" INDICATES THAT THE WITNESS KNEW THE ACCUSED PRIOR TO THE
OFFENSE.
THAT’S A GENERAL RUN THROUGH IT, YOU CAN SEE THAT YOU
CAN IDENTIFY DIFFERENT. DIFFERENT THINGS THAT THE WITNESS MAY
HAVE SEEN THE DEFENDANT DO AND YOU CAN IDENTIFY THE TYPE OF
IDENTIFICATION THAT THE WITNESS COULD MAKE, FACE, GAIT, CLOTHING
AND WHETHER OR NOT THEY KNEW THE ACCUSED PRIOR TO THIS HAPPENING
OR HAD EVEN SEEN HIM BEFORE.
@. COULD WE MOVE ON TO THE NEXT PAGE FROM THAT. PAGE 25. BY
THE WAY, PERHAPS BEFORE WE DO, DO YOU SEE ANY INCONSISTENCIES IN
THIS RECORD ‘BETWEEN THE CODING THERE AND WHAT --
A. NO, THATS A SENSIBLE CODING.
@. TOP OF 2%. NUMBER, QUESTION NUMBER &1. WHAT DOES THAT DEAL
WITH?
A. THIS DEALS WITH WHETHER OR NOT THERE IS A WITNESS WHO MADE
AN IDENTIFICATION TO THE AUTHORITIES, AND IN THIS CASE, THE
ANSWER TO THAT WAS, YES.
AND THEN POSSIBLE CODES ARE 1, 2, 3, 4, 5, I“M SORRY,
NOT THE POSSIBLE CODES, THE TYPES OF IDENTIFICATIONS ARE LISTED
IN THOSE PARAGRAPHS IN THE CENTER OF THE PAGE AND THE CODE
THATS CODED HERE. "UNCLEAR", WHICH STANDS FOR, IS A GENERAL
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CODE WHICH MEANS THERE'S AT LEAST ONE, BUT THEY DON’T REALLY
KNOW HOW MANY.
AND WHAT THAT INDICATES IS THAT THOSE WITNESSES
REPORTED, THAT THOSE WITNESSES REPORTED THAT THE DEFENDANT WAS
THE PERSON WHO COMMITTED THE HOMICIDE IN A WAY THAT’S DIFFERENT
FROM THOSE FIVE THAT ARE LISTED ABOVE. THAT’S A GENERAL
CATCH-22 CATEGORY AT THE BOTTOM,
AN EXAMPLE OF WHAT THAT MIGHT MEAN IS THAT SOMEONE JUST
CALLED THE POLICE AND SAID. SQ AND SO DID IT, OR SOMETHING LIKE
THAT.
@. THERE ARE MANY OTHER PERMUTATIONS POSSIBLE, OBVIOUSLY. ON
THAT ONE?
A. OKAY.
@. NUMBER &2 DOWN AT THE BOTTOM. THAT FORMAT IS A LITTLE
DIFFERENT THAN THESE OTHERS. WHAT DOES THAT "1" MEAN?
A. THE "i" IS A YES, MEANS THAT THERE WAS A, THAT THE FILE
CONTAINED INFORMATION CONCERNING FRIMARY WITNESS.
@. 1 NOTICE THAT IT SEEMS AT THE END OF EACH OF THOSE PHRASES
THERE’S AN "OR," SO IF ANY OF THOSE CAPITAL A THROUGH E EXISTED.
THEN YOU WOULD HAVE A "YES?"
A. WELL, I THINK THE KEY TO GET YOU INTO ANSWERING THIS
QUESTION IS THAT THERE WAS A PRIMARY WITNESS.
@. ALL RIGHT.
A. AND THAT WAS UNDERSTOOD TO THE CODERS.
@. THEN &2A, PERHAPS I DIDN/T UNDERSTAND, I“M NOT LEADING. &Z2A
GATES - DIRECT
oo
k IS KIND OF AN INTRODUCTION, OR 62 IS KIND OF AN INTRODUCTION TO
&2A ON THE NEXT PAGE. IS THAT WHAT -—-—
A. IT’S AN INTRODUCTION TO A, B, C., D, AND E AND THOSE LETTERS
WE SAW ON THE PRIOR PAGE REFERRING TO EACH OF THOSE QUESTIONS.
@. CAN YOU BRIEFLY GO DOWN THE CODING ON THAT?
A. YES. AT FOIL 385, IT INDICATES THAT THE RELATIONSHIP BETWEEN
-=- IS CIVILIAN, AS OPPOSED TO A POLICE OFFICER OR UNKNOWN.
MOVING TO QUESTION —— AND THE NAME OF THE PRIMARY WITNESS IS
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IM STARTING AT FOIL 385, THE "1" INDICATES THAT THE
11 RELATION OF THE PRIMARY WITNESS AND THE DEFENDANT IS THAT OF
12 FAMILY.
13 FOIL 386 INDICATES THE RELATION OF THE PRIMARY WITNESS
14 TO THE VICTIM IS UNKNOWN.
13 SKIPPING DOWN TO THE NEXT QUESTION. THE PRIMARY WITNESS
16 STATUS, "1" INDICATES IT’S A CIVILIAN, AS OPPOSED TO POLICE
17 OFFICER OR UNKNOWN. 18 | MOVING TO, AND THE NAME OF THE PRIMARY WITNESS IS
ws 19 STATED THERE.
20 MOVING TO 62C, THE "2" CODED THERE INDICATES THAT THE
21 PRIMARY WITNESS” STATEMENT WAS CORROBORATED BY A CIVILIAN
22 WITNESS.
23 MOVING TO 62D, THE CORING "2" INDICATES THAT THE FILE
24 DOES NOT INDICATE THERE WAS ANY PROBLEMS WITH THE WITNESS”
25 CREDIBILITY.
GATES - DIRECT
p
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42E, THE "2" THERE INDICATES THERE WAS NOT A WRITTEN
2 COPY OF THE PRIMARY WITNESS” STATEMENT IN THE GEORGIA PAROLE
3 BOARD FILES.
4 THE COURT: WHAT KIND OF PRUBLEMS WOULD YOU BE ABLE TO
3S OBSERVE CONCERNING CREDIBILITY OF THE PRIMARY WITNESS?
& THE WITNESS: I THINK THERE’S A SPECIFIC INSTRUCTION
7 FOR THAT. LET ME JUST CHECK.
3 YES, THERE IS. PAGE 23, AT 62D, AND YOU ONLY ANSWER
? THAT AFFIRMATIVELY IF IT”S STATED EXPLICITLY IN THE FILE.
10 THE COURT: WHAT SORT OF STATEMENTS DID YOU FIND?
11 THE WITNESS: YOU WOULD FIND A STATEMENT ABOUT THE
12 REPUTATION OF THAT PERSON, MIGHT INDICATE THAT THEY ARE. THAT
13 THEY ARE A PROSTITUTE OR SOMETHING LIKE THAT. AND SAY. STATED
14 SPECIFICALLY IN THE FILE, I“M NOT SURE IF THIS IS, YOU KNOW. A
13 BELIEVABLE ACCOUNT, OR SOMETHING.
16 THE COURT: LET’S TAKE PROSTITUTE FOR A MINUTE.
17 IF THE FILE SAID THE PRIMARY WITNESS, A PROSTITUTE.
18 STATED THAT THE DEFENDANT STABBED THE VICTIM TWICE.
® 19 WOULD YOUR CODER ENCODE A YES ANSWER TO 42D7
20 THE WITNESS: NO. THE CODER WOULD ONLY CODE IT IF THE
21 FILE SPECIFICALLY STATED THAT THERE WAS A PROBLEM WITH THE
22 CREDIBILITY OF THE WITNESS.
23 THAT WAS JUST THE RULES WE WERE FOLLOWING. WE DIDN'T
24 WANT THE CODERS MAKING INDEPENDENT JUDGMENTS ABOUT THE
23 CREDIBILITY OF PEOPLE IN DIFFERENT PROFESSIONS OR THAT SORT OF
GATES - DIRECT
1 THING.
MN
THE COURT: YOU MAY NOT KNOW THE ANSWER TO THIS
3 QUESTION, BUT I‘M CURIOUS TO KNOW IF YOU DO.
4 IF YOU HAD ANY APPRECIABLE NUMBER OF FILES WHEREIN
COMMENT ON THE WITNESS‘ CREDIBILITY WAS, DID APPEAR? &]
THE WITNESS: A HANDFUL. Oo
THE COURT: ALL RIGHT.
BY MR. FORD:
v
u
QR. DO YOU KNOW IF THAT COULD BE DETERMINED?
10 A. WELL, THAT CAN EASILY BE DETERMINED. WHEN WE WROTE THIS
11 QUESTIONNAIRE, -——
12 @. HOW WOULD YOU DETERMINE HOW MANY OF THOSE CASES, HOW MANY OF
13 THE TOTAL CASES INCLUDED COMMENTS ON THE WITNESS” CREDIBILITY?
14 HOW WOULD YOU FIND THAT OUT AT THIS POINT?
13 A. WELL, PROFESSOR BALDUS OR PROFESSOR WOODWORTH COULD EXAMINE
16 THE RECORDS AND DETERMINE THAT. 17 THE COURT: ALL RIGHT. ANYBODY HUNGRY?
18 MR. FORD: YES, YOUR HONOR.
AS] 19 THE COURT: ARE YOU ABOUT THROUGH? |
<0 MR. FORD: PRETTY CLOSE. |
21 THE COURT: BECAUSE OF THE HOUR, LET“S GO AHEAD AND BREAK.
22 AND COME BACK AND FINISH UP. MAYBE WE‘LL HAVE YOUR CROSS OF
23 THIS WITNESS.
24 ALL RIGHT. WE’LL BE IN RECESS FOR AN HOUR.
2% i ..
534
GATES ~- DIRECT
NS
(RECESS TAKEN.)
2 THE COURT: ALL RIGHT, SIR, GO AHEAD.
3 MR. FORD: THANK YOU, YOUR HONOR.
3 -i-
5 EDWARD RAYMOND GATES.
& BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
7 TESTIFIED FURTHER AS FOLLOWS:
a DIRECT EXAMINATION (CONT’D)
? BY MR. FORD:
10 @. MR. GATES, I BELIEVE BEFORE THE BREAK, WE WERE DEALING WITH
11 PARTS OF THE STRENGTH OF EVIDENCE SECTION ON THE STRICKLAND.
2 BILLY STRICKLAND QUESTIONNAIRE, EG-6B.
13 IF YOU WOULD TURN TO PAGE 31 OF THAT. PLEASE. IF YOU’RE
14 NOT ALREADY THERE?
13 AND CAN YOU BRIEFLY RUN DOWN WHAT THE CODING ON THAT
16 ENTRY, BEGINNING WITH NUMBER 49, DID THE HOMICIDE INVOLVE THE
17 USE OF A WEAPON. PARENTHESES, OTHER THAN HANDS AND FEET.
18 WILL YOU BRIEFLY RUN DOWN WHAT THAT CODING INDICATES.
» 19. ia. ves.
20 FOIL NUMBER 463 INDICATES THAT THE HOMICIDE DID INVOLVE
21 THE USE OF A WEAPON OTHER THAN HANDS AND FEET.
22 AND QUESTION NUMBER &%9A, FOIL NUMBER 464, INDICATES
23 THAT THAT WEAFON WAS FOUND.
24 @. TURNING TO PAGE 327
25 A. THEN FOIL 445 INDICATES THAT THE POLICE FOUND THAT WEAPON AT
GATES ~ DIRECT
1 THE SCENE, OR NEARBY.
2 AND THEN FOIL 4% ASKS THE QUESTION, HOW IS THAT WEAPON
CONNECTED TO THE DEFENDANT, AND THE CODING AT FOIL 44& INDICATES
THAT SOMEONE SAW THE DEFENDANT WITH THAT WEAPON AT THE SCENE OF
THE CRIME.
3
4
S
& BG. AGAIN, THAT WAS QUESTION &%C, FOIL 4667
7 A. THAT’S CORRECT.
3 @. ANY INCONSISTENCY BETWEEN THAT AND THE SUMMARY AS YOU RECALL
9 IT?
10 A. NOT AS I RECALL.
11 @. ANY PARTICULAR TECHNICAL ASPECTS TO THE CODING ON THOSE
12 QUESTIONS, AND FOILS, NEED ELABORATION BEYOND THE LIST OF
13 VARIABLES THAT ARE THERE?
14 A. ONLY ONE, AND THAT IS, YOU SHOULD KNOW THAT QUESTION &% AND
15 649A, THAT THERE IS INSTRUCTIONS TO SKIP CERTAIN QUESTIONS,
16 DEPENDING UPON YOUR ANSWER AT THAT PARTICULAR FOIL.
17 @. ©S0 BLANK IN THOSE QUESTIONS WOULD INDICATE IT’S NOT
18 APPLICABLE IN THIS PARTICULAR CIRCUMSTANCE, IS THAT RIGHT?
BE 19 A. THAT’S RIGHT.
20 @. CAN WE GO ON, THEN. TO PAGE 34. I BELIEVE THAT’S ONE WE DID
21 NOT COVER IN SUBSTANCE IN THE PREVIOUS QUESTIONNAIRE, STARTING
22 WITH QUESTION 737
23 A. OKAY. THE QUESTION ASKS WHETHER THE FILE INDICATES THAT A
24 WITNESS HAD INFORMATION ON PREPARATION OR PRECIPITATING EVENTS,
25 AND CODED FOIL 477A IS YES.
——— ———————— S—— ———_ go ————— ————— SS — p———— —————— ———— ——— ————————————————— V———————————" —————— ——_ ———=
GATES - DIRECT
1 NOW IF YOU CODE THAT FOIL YES, THEN YOU ANSWER 73A. IF
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THE ANSWER WERE CODED NO, THEN YOU WOULD GO ON TO THE NEXT
3 RUESTION.
4 AND FOIL 431 INDICATES THAT TWO PEOPLE DESCRIBED THE
VICTIM AS THE AGGRESSOR IN PROVOKING A FIGHT, THAT TWO PEOPLE wu
DESCRIBED THE ACCUSED AS ARMED AND TWO PEOPLE SAID THAT THE Ua
ACCUSED COULD HAVE RETREATED FROM THE SCENE, BUT DIDN'T.
AND DOWN BELOW AT 497. TWO PEOPLE TESTIFIED THAT THE
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VICTIM, I“M SORRY, TWO PEOPLE HAD INFORMATION THAT THE VICTIM
10 CHASED THE DEFENDANT IN A CAR CHASE FOR FIFTEEN OR TWENTY
11 MINUTES.
12 @. ANYTHING IN THAT FOIL SET THAT’S NOT PRETTY WELL
13 SELF-EXPLANATORY FROM ALL THE INSTRUCTIONS AND QUESTIONS THAT
14 ARE THERE?
13 A. NO, I DON‘T THINK 30.
16 2. AND PAGE 3%. QUESTION 74 AND 74A, CAN YOU RUN THAT DOWN,
17 PLEASE?
18 A. THAT QUESTION. THE DESIGN OF THAT QUESTION IS THE SAME AS
RI 19 QUESTION 73 AND THIS IS CODED AT THE FOIL S18 THAT THERE IS A
20 WITNESS WITHIN INFORMATION CONCERNING MOTIVE.
21 AND 74A, FOIL S26. INDICATES. THAT’S. MIGHT BE UNCLEAR |
22 FROM THE HANDWRITING, BUT THATS A "UC" AND WHAT THAT MEANS IS
23 THAT THERE WAS ONE, THERE WAS AT LEAST ONE, BUT THE CODER WASN’T
24 CERTAIN HOW MANY MORE THAN ONE THERE WERE. THAT KNEW OF BAD
23 BLOOD BETWEEN THE ACCUSED AND THE VICTIM. EXCUSE ME.
r——- ———— ———— ————_
337
GATES - CROSS
AND FOIL 328 INDICATES THAT THERE WERE TWO WITNESSES
WHO HAD INFORMATION THAT THE DEFENDANT WAS QUT WITH THE VICTIM’S
WIFE AND THAT THE VICTIM CHASED THE DEFENDANT IN A CAR FOR
FIFTEEN OR TWENTY MINUTES.
@. ALL RIGHT. THEN THAT WOULD COMPLETE THE QUESTIONNAIRE,
EXCEPT FOR THE AMBIGUITIES, SUMMARY SECTIONS, AND THE SECTION ON
THE LOCATION OF THE CODING THAT WE DON‘T HAVE FOR THESE
PARTICULAR ONES?
A. AND THE WORK SHEET. YES.
@. AND THE WORK SHEET.
ANYTHING ELSE SIGNIFICANT THAT COMES TO YOUR MIND ABOUT
THE CODING OF THESE QUESTIONNAIRES THAT WE HAVEN'T COVERED IN
RUNNING THROUGH THESE TWO EXAMPLES?
A. NOTHING THAT COMES TO MIND.
Q. HOW IT WAS DONE AT THE TIME?
A. YES.
MR. FORD: THAT’S ALL THE QUESTIONS I HAVE. YOUR HONOR.
THE COURT: ALL RIGHT, MS. WESTMORELAND. YOU MAY
CROSS-EXAMINE.
CROSS-EXAMINATION
| BY MS. WESTMORELAND:
@. MR. GATES, BEFORE YOU BEGAN YOUR INITIAL WORK. TO BACKSPACE
A LITTLE BIT TO THE BEGINNING OF YOUR TESTIMONY, IF WE COULD,
DID YOU HAVE ANY PRIOR KNOWLEDGE OR EXPERIENCE IN THE AREA CF
CRIMINAL LAW?
538
GATES - CROSS
1 A. NONE AT ALL. :
2 Q@. DID YOU HAVE ANY PRIOR KNOWLEDGE OR EXPERIENCE CONCERNING
3 GEORGIA LAW. IN PARTICULAR?
4 A. NONE AT ALL.
5 Q. IN GOING TO YOUR CODING THAT YOU ACTUALLY DID WITH REGARD TO
5 THE PROCEDURAL REFORM STUDY, THE FIRST STUDY, YOU ACTUALLY CODED
7 QUESTIONNAIRES IN THAT STUDY, IS THAT CORRECT?
A. THAT”S CORRECT.
Ss
Z Q. HOW OFTEN DID YOU REFER TO THE TRANSCRIPTS IN CODING THE
0 QUESTIONNAIRES?
11 A. IN THE SUPREME COURT STUDY. WHICH IS THE FIRST CASES THAT I
12 EVER CODED, WE WERE CODING FROM THE APPELLATE BRIEFS AND THE
13 TRANSCRIPTS.
14 @. DID YOU REFER TO THE TRANSCRIPTS THEN IN CODING EVERY CASE?
15 A. YES.
16 @. IN DOING CODING, YOU, WERE YOU ASSIGNED SPECIFIC CASES
17 BETWEEN YOU AND MS. CHRISTIANSON, OR WERE THEY JUST DIVIDED UP
13 BETWEEN THE TWO OF YOU IN A RANDOM FASHION?
BB 19 A. THAT’S CORRECT.
20 @. WHEN YOU LOOKED AT THE FILES IN THE GEORGIA SUPREME COURT,
21 AND THIS WOULD BE WITH REGARD TO THE SUPREME COURT
22 QUESTIONNAIRE, AND YOUR FILLING OUT OF THAT QUESTIONNAIRE, DID
23 EACH FILE ALWAYS HAVE THE SAME INFORMATION PRESENT IN THE FILE?
24 8. NO.
25 @. WERE THERE SOME FILES THAT, FOR INSTANCE. MAY NOT HAVE HAD A
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BRIEF FROM THE DISTRICT ATTORNEY OR SOMETHING OF THAT NATURE?
A. NONE THAT I RECALL. WHAT WAS NOT ALWAYS AVAILABLE WAS THE
SUPREME COURT OPINION WHERE THEY HAD NOT REACHED THEIR DECISION.
@. DO YOU RECALL WHAT PERCENTAGE OF CASES THAT MIGHT HAVE BEEN
THAT DIDNT HAVE THAT OPINION?
A. JUST A HANDFUL.
@. AND I BELIEVE ALSO, DID YOU USE DENNIS YORK’S QUESTIONNAIRES
AND INFORMATION WITH THE SUPREME COURT QUESTIONNAIRE OR JUST THE
PROCEDURAL REFORM STUDY QUESTIONNAIRE?
A. IT WAS USED FOR BOTH.
@. AND I BELIEVE YOU INDICATED THAT YOU DID NOT ALWAYS HAVE
INFORMATION FROM HIM ON EACH CASE, WAS THAT CORRECT?
A. THATS CORRECT.
@. DO YOU HAVE ANY IDEA OF HOW MANY CASES YOU HAD INFORMATION
FROM MR. YORK?
A. I DON‘T RECALL.
R. WHAT SPECIFICALLY, IN CODING THE SUPREME COURT
QUESTIONNAIRE, DID YOU READ IN READING THE FILE AND IN
EVALUATING THE FILE? WHAT SPECIFIC INFORMATION WOULD YOU LOOK
AT?
|A. WELL. WHERE IT WAS AVAILABLE, WE ALWAYS LOOKED AT THE YORK
FILE AND THE YORK CARD. OR IF THERE WAS A TRIAL JUDGES REPORT
WE ALWAYS LOOK AT THAT.
THEN WE READ THE SUPREME COURT OPINION. AND READ THE
AFPELLATE BRIEFS FOR BOTH SIDES.
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AND THEN WE WOULD SUPPLEMENT THAT INFORMATION BY
REFERENCE TO THE TRIAL TRANSCRIPT ITSELF.
@. BUT YOU DID NOT DO A THOROUGH READING OF THE TRIAL
TRANSCRIPT THEN, IS THAT CORRECT?
A. THAT’S CORRECT. |
@. FROM WHAT YOU‘RE SAYING, I UNDERSTAND THE TRIAL TRANSCRIPT
WAS USED TO SUPPLEMENT WHEN YOU HAD MISSING INFORMATION. FOR
INSTANCE?
A. CORRECT.
@. AND IF YOU HAD NO REASON TO ASSUME THAT CERTAIN FACTS MIGHT
BE MISSING, YOU DID NOT REFER TO THE TRANSCRIPT, THEN, WOULD
THAT BE CORRECT?
A. I“M NOT SURE I UNDERSTAND.
@. MY UNDERSTANDING IS THAT YOU WOULD REFER TO THE TRIAL
TRANSCRIPT IF IT WAS OBVIOUS, FOR INSTANCE, THAT YOU COULD NOT
TELL WHETHER A PENALTY TRIAL OCCURRED AND THAT MIGHT BE A
PURPOSE FOR REFERRING TO TRIAL TRANSCRIPT. IS THAT A FAIR
STATEMENT OF A TIME YOU WOULD REFER TO THE TRANSCRIPT?
A. IF WE WERE UNABLE TO ANSWER A QUESTION THAT WAS ON THE
QUESTIONNAIRE. THEN WE WOULD REFER TO THE TRIAL TRANSCRIPT.
@. BUT IF YOU WERE ABLE TO ANSWER THE QUESTION, FOR INSTANCE,
IN REGARD TO SPECIFIC FACTS OF THE CRIME, IF YOU HAD A SUMMARY
OF THE FACTS AND YOU HAD THE COURT“S OPINION AND THAT TYFE OF
INFORMATION AND COULD ANSWER THE QUESTIONS, OR AT LEAST FELT YOU
COULD ANSWER THE QUESTIONS FROM THAT, THEN YOU DID NOT
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REFER TO THE TRIAL TRANSCRIPT. IS THAT CORRECT?
A. THAT’S CORRECT, EXCEPT WITH THE EXCEPTION THAT WE ROUTINELY
REFERRED TO THE TRANSCRIPT AND READ THE MEDICAL REPORT.
@. WAS THE MEDICAL REPORT, THEN. THE ONLY THING YOU READ
ROUTINELY OUT OF THE TRANSCRIPT ON EACH CASE OR WAS THERE
ANYTHING ELSE?
A. NO. I MEAN THERE WERE INSTANCES IN EVERY SINGLE CASE WHERE
WE REFERRED TO THE TRIAL TRANSCRIPT, BUT THAT WAS THE ONLY. THAT
WAS THE ONLY PIECE OF INFORMATION THAT WE KNEW EXACTLY WHERE WE
COULD FIND IT IN THE FILE, SO WE ROUTINELY WENT THERE TO LOOK
FOR IT.
‘Gl. DID YOU LOOK AT THAT, THEN, IN EVERY CASE?
A. YES.
R. WHEN YOU GOT TO THE TIME PERIOD WHEN YOU WERE CODING BOTH
THE SUPREME COURT QUESTIONNAIRE AND THE PROCEDURAL REFORM STUDY
QUESTIONNAIRE, AND I UNDERSTAND THAT WAS WHEN YOU CAME INTQ IT.
WHEN BOTH OF THOSE WERE BEING CODED, IS THAT CORRECT?
A. THAT”S RIGHT.
R. WHICH QUESTIONNAIRE WOULD YOU CODE FIRST WHEN YOU WERE DOING
A GIVEN CASE?
A. I WOULD CODE THE SUPREME COURT QUESTIONNAIRE FIRST.
©. WOULD YOU THEN CODE THE PROCEDURAL REFORM STUDY BASED ON
YOUR CODING OF THE SUPREME COURT QUESTIONNAIRE, OR WOULD YOU GO
THROUGH THE FILE AGAIN?
A. NEITHER.
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GATES - CROSS
po
i @. WHAT APPROACH DID YOU TAKE?
A. WE WOULD CODE THE SUPREME COURT GUESTIONNAIRE AND THEN nN
IMMEDIATELY CODE THE PROCEDURAL REFORM QUESTIONNAIRE, BASED ON
OUR FRESH RECOLLECTION OF WHAT WE HAD JUST READ.
THE COURT: IF YOU HAD NO RECOLLECTION. WHAT DID YOU
THEN REFER TO?
THE WITNESS: TO THE SAME DOCUMENTS THAT WE HAD JUST
REVIEWED, WHICH IS THE SUPREME COURT OPINION AND THE BRIEFS, THE
YORK INFORMATION AND THE TRIAL TRANSCRIPT.
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y BY MS. WESTMORELAND:
11 @. WERE ANY ISSUES RESOLVED CONCERNING MAYBE ANY AMBIGUITIES
13 THAT MIGHT HAVE EXISTED BETWEEN YOU AND MS. CHRISTIAN? DID
13 Y/ALL DISCUSS THE ISSUES, I GUESS, IS WHAT I°M ASKING FIRST. AND
14 THEN DID YOU RESOLVE THEM?
15 A. YES, WE DID. WE DISCUSSED THEM. BUT THE FIRM RULE WAS WE
14 WERE NOT TO RESOLVE ANY ISSUES, AND WE HAD A DAILY, FOUR O7CLOCK
17 PHONE CONVERSATION WITH PROFESSOR BALDUS, AND HE RESOLVED IT,
18 ANY ISSUES THAT AROSE.
® 10 @. WHEN YOU WERE CODING QUESTIONNAIRES. WOULD IT BE A FAIR
20 STATEMENT TO SAY THAT THE MORE QUESTIONNAIRES YOU CODED THE
21 EASIER IT GOT TO CODE TO QUESTIONNAIRES?
23 @. AND WOULD IT ALSD BE FAIR TO SAY THAT YOU GOT MORE
24 PROFICIENT THE LONGER YOU HAD BEEN CODING GUESTIONNAIRES?
— ———_——— ——— i Si re —————_——" —— T———— TT ——_————
GATES - CROSS
1 @. WHEN YOU RECEIVED A CHANGE IN INSTRUCTIONS OR A CHANGE IN
THE RULINGS AS TO HOW THE CODING WAS TO TAKE PLACE. FOR [3
3 INSTANCE, DUE TO AN AMBIGUITY, WOULD THEN. WOULD YOU THEN GO
4 BACK TO EACH SPECIFIC CASE AND LOOK AT THAT PARTICULAR POINT IN
bv’ EACH CASE?
"n & A. I’M NOT SURE THAT THAT HAPPENED THE WAY YOU’RE SAYING IT.
7 @. 1 BELIEVE YOU HAD INDICATED THAT IF A QUESTION CAME UF AS
3 YOU WERE CODING, AND IT NEEDED TO BE RESOLVED AND THEN IT WAS
9 RESOLVED THROUGH CONVERSATIONS WITH PROFESSOR BALDUS. PERHAPS,
0 AND THEN IT WAS CODED. I BELIEVE YDU INDICATED SOMETHING TO THE
11 EFFECT THAT THE PRIOR QUESTIONNAIRES WERE CHECKED AS TO THAT
12 POINT?
13 A. 1 UNDERSTAND.
14 : IF AN AMBIGUITY AROSE IN A SINGLE CASE, THE RESOLUTION
13 OF THAT AMBIGUITY MIGHT NOT AFFECT ANY RULE. THAT MIGHT BE
16 SPECIFIC FOR A SPECIFIC SET OF CIRCUMSTANCES. AND THEN
17 PROFESSOR BALDUS WOULD RESOLVE THAT, AND THEN WE WOULD CODE IT
13 IN THE QUESTIONNAIRE.
w 19 IF THERE WAS ANY ELABORATION OR MODIFICATION OF A RULE
20 THAT PROFESSOR BALDUS HAD GIVEN TO US, THEN WE WOULD GO BACK
21 THROUGH EVERY RUESTIONNAIRE AND GO.» READ THE SUMMARY AND GO TO
22 THE APPROPRIATE QUESTION, AND MAKE SURE THAT IT WAS CODED THE
23 RIGHT WAY.
24 @. WHEN YOU WENT TO THE STATE BOARD OF PARDONS AND PAROLE TO
23 BEGIN CODING QUESTIONNAIRES, IN THEIR OFFICES, I BELIEVE YOU
———— ——Y— S——A— TH ——. f—— T——(———— ————f—— ———. H————————————— ————— f————
GATES - CROSS
INDICATED PREVIOUSLY ABOUT TWENTY-FIVE PERCENT OF THE CASES HAD
NN
2 | POLICE REPORTS. WAS THAT CORRECT?
2 |A. ves.
4 |@. AND THE REMAINDER DID NOT, THEN.
s DID ALL THOSE CASES HAVE A REFORT BY THE PAROLE OFFICER
4 |BASED ON POLICE REPORTS?
7 |A. ALL THE FILES?
38 |@. YES?
9 |A. YES. EVERY FILE HAD A, YES, EVERY FILE HAD A REPORT BY THE
10 | PROBATE OFFICER. BUT AS I RECALL. A PAROLE BOARD OFFICER MIGHT
11 |REFER YOU TO A PARTICULAR DOCUMENT THAT HE HAD ATTACHED FOR MORE
12 | DETAILED ELABORATION OF THE CRIMINAL CIRCUMSTANCES.
13 |@. DO YOU KNOW HOW MANY OCCASIONS THAT OCCURRED?
14 |A. A SMALL PERCENTAGE.
1S |@. IN THOSE CASES IN WHICH YOU ONLY HAD THE REPORT OF PAROLE
16 |OFFICER, THEN YOU HAD NO ACTUAL FIRSTHAND KNOWLEDGE OF WHAT THE
17 |POLICE MIGHT HAVE FOUND IN A GIVEN SITUATION. ISN‘T THAT
18 | CORRECT?
1% A. THAT’S CORRECT. |
20 ©. I BELIEVE YOU ALSO INDICATED THAT IF YOU WERE NOT PROVIDED
21 WITH THE SUPREME COURT OPINION FROM PROFESSOR BALDUS THEN YOU
22 | PRESUMED THERE HAD BEEN NO APPEAL. IS THAT A CORRECT STATEMENT?
22 |A. IN THE PROCEDURAL REFORM STUDY, YES.
24 |@. IF YOU WOULD REFER TO EG-3A FOR A MOMENT, PLEASE. ON PAGE 7
25 OF THAT DOCUMENT, 1 BEG YOUR PARDON. LOOK ON PAGE %.
545
GATES - CROSS
1 THIS REFERS TO QUESTION 30 ON SPECIAL AGGRAVATING AND
> | MITIGATING FEATURES, AND I BELIEVE YOU CODED THIS DOCUMENT,
3 | YOURSELF, DID YOU NOT?
4 |A. THAT‘S CORRECT.
@. AND I NOTICE WHEN YOU TALKED EARLIER, I BELIEVE THAT YOU 4
ADDED IN NUMBER 30 AND 33 OVER ON THE RIGHT-HAND SIDE.
DID YOU HAVE ANY PARTICULAR ORDER IN INDICATING
E
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INFORMATION ON THE FOILS THAT WERE PROVIDED? WERE THEY
? INDICATED, FOR INSTANCE, IN ORDER OF IMPORTANCE?
10 A. I DON’T THINK SO.
11 @. DOES THAT MEAN THAT THERE WAS NO PARTICULAR ORDER?
12 A. YES. IN GENERAL,» AND IT’S ILLUSTRATED BY THE WAY I CODED IT
13 HERE. YOU CAN SEE THEYRE ALMOST CHRONOLOGICAL. SO WHAT I. IT
14 APPEARS AS THOUGH THE WAY I WAS DOING THIS WAS JUST READING EACH
15 ONE DOWN THE LIST, AND AS I CAME TO ONE THAT APPLIED. THEN 1
16 CODED IT.
17 @. IF YOU HAD MORE, IN THIS CASE. AGGRAVATING OR MITIGATING |
18 FEATURES, DID YOU ALWAYS HANDWRITE OR WRITE IN THE ADDITIONAL |
p 19 ONES BEYOND THE SIX FOILS PROVIDED? |
20 A. I DON’T RECALL IF I ALWAYS DID THAT OR NOT.
21 1 ALWAYS INCLUDED THE INFORMATION ON THE SUMMARY.
22 ©. IF YOU FLIP BACK TQ PAGE 15 TO THE NARRATIVE SUMMARY OF THIS
23 CASE, ON THE SECOND LINE OF YOUR SUMMARY, YOU INDICATED ON
24 DIRECT EXAMINATION THAT THE WORD AT THE END OF THAT LINE. WHERE
23 IT DESCRIBES THE VICTIM AS WHITE. HAD APPARENTLY BEEN ADDED IN
et “a—— h —— — ———— ern. | —— _ Soe’. Woette; freee. ft. Sp—— S—
GATES - CROSS
1 AT A& LATER TIME. DO YOU HAPPEN TO KNOW WHO MIGHT HAVE ADDED
2 THAT IN?
3 A. YES. I BELIEVE THAT, WELL, I DON’T KNOW EXACTLY WHO. IT
4 WOULD HAVE BEEN ADDED IN UNDER THE DIRECTION OF PROFESSOR
5 BALDUS.
p & @. AND WOULD THAT HAVE BEEN CODED BACK IN THE EARLIER PART OF
7 THE QUESTIONNAIRE, RELATING TO THE RACE OF THE VICTIM?
©
A. THAT, I WOULDN’T KNOW BECAUSE THE QUESTIONNAIRES WERE BEYOND
9 MY CONTROL AT THAT TIME.
10 @. ON PAGE 3B, I BELIEVE, IS THAT NOT WHERE RACE OF VICTIM IS
11 INDICATED?
12 A. THAT’3 ONE PLACE, BUT IT”S ACTUALLY INDICATED IN TWO FLACES.
13 Ql. WHERE WOULD THE SECOND PLACE BE?
14 A. THE SECOND PLACE IS ON PAGE 4, FOIL NUMBER 6&6.
13 @. AND WHY WOULD IT BE CODED UNKNOWN, OR AS I READ THE
16 QUESTIONNAIRE, CODED AS UNKNOWN DON 3B AND THEN CODED ON PAGE 4
17 AS WHITE?
13 A. WELL, AS YDU CAN SEE UP ABOVE, I“M SORRY, ON PAGE 3B.
® 12 UNDERNEATH DATE OF DEATH. AND COUNTY OF DEATH. IT SAYS ENTER
20 ONLY IF RACE IS UNKNOWN. SO I MADE A ENTRY THERE.
21 AND THEN YOU, IF YOU LOCK DOWN NEXT TO VICTIM NUMBER ONE
22 AND GO TOD THE END, IT INDICATES IT’S UNKNOWN. THAT'S THE WAY 1
23 WOULD HAVE CODED THAT. AND CONSISTENT WITH THAT, I WOULD HAVE
24 CODED FOIL NUMBER 646 AS BEING UNKNOWN, SO THAT THE FRESENCE OF A
23 wi" THERE INDICATES TO ME THAT SOMEONE DID, WHEN THEY FOUND OUT
CATES - CROSS
THE RACE OF THE VICTIM, GO BACK AND CHANGE THE, THE DOCUMENT.
@. DOES IT APPEAR THAT PAGE 4, FOIL 46. WAS CHANGED? DO YOU
HAVE ANYTHING THAT INDICATES IT WAS CHANGED OR THAT IT WAS
ORIGINALLY CODED AS A "1"?
A. THE ONLY INDICATION IS WHAT I JUST SAID, THAT INFORMATION
THAT 1 CODED UNKNOWN ON THE OTHER PAGE. AND THEN IT APFEARS THAT
"WHITE" WAS HANDWRITTEN ON THE SIDE, DUTSIDE OF THE FRAME OF THE
SUMMARY PAGE.
OTHER THAN THAT. I CAN‘T TELL FROM THIS COPY.
@. CAN YOU TELL IF YOU WROTE THE NUMBER IN FOIL 46 OR IF IT WAS
WRITTEN BY SOMEONE ELSE?
A. NO.
@. IN THE CASE SUMMARY. ONCE AGAIN, AND I APOLOGIZE FOR JUMPING
BACK AND FORTH, ON PAGE 1S, YOU REFER DOWN TO THE BOTTOM TO
KENNETH HARDY AND LEWIS HARDY, CO-FPERPETRATORS IN THIS OFFENSE.
HOW DID YOU OBTAIN OR WHERE DID YOU OBTAIN THE
INFORMATION REGARDING THESE TWO INDIVIDUALS?
A. LET ME CHECK AND SEE WHAT MY SOURCE WAS FIRST.
OKAY THE SOURCE OF THIS INFORMATION IS FROM THE FARDONS
AND PAROLE FILES.
SO I WOULD HAVE OBTAINED THAT INFORMATION ABOUT THEM
DIRECTLY FROM THE FILES OF THE DEPARTMENT OF PARDONS AND
PAROLES.
@. WOULD THAT HAVE BEEN FROM THE PAROLE OFFICER’S REPORT OR
| FROM SOME OTHER DOCUMENT IN THE FILES?
S48
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Ty
A. ACTUALLY RIGHT ON THAT REPORT THAT INCLUDES THE SUMMARY OF
THE POLICE FILES, WHEN THERE'S CO-PERPETRATORS, AS A RULE. RIGHT
AT THE TOP, IT STATES THAT THERE ARE CO-PERFETRATORS. WHAT THEIR
NAMES ARE AND WHAT INMATE NUMBERS ARE. AND DIRECT YOU RIGHT TO
THE FILE.
Q. ON PAGE 4, QUESTION 22. REGARDING THE RELATIONSHIP OF THE
VICTIM TO THE DEFENDANT. I BELIEVE IN THIS CASE, YOU CODED A 21
FOR A STRANGER?
A. THATS CORRECT.
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G. HOW WOULD YOU DEFINE A STRANGER WHEN YOU WERE CODING THESE
11 CIRCUMSTANCES? WHAT DEFINITION WERE YOU TO UTILIZE?
12 A. TWO PEOPLE THAT HAD NOT MET BEFORE THE TRANSACTION THAT
13 RESULTED IN THE HOMICIDE.
14 @. HAD NOT MET?
13 A. THAT’S CORRECT.
16 @. SO IF THEY HAD PERHAPS MET THE DAY BEFORE THE HOMICIDE, THEN
17 THEY WOULD NOT BE CODED AS STRANGERS. IS THAT CORRECT?
18 A. THAT’S CORRECT.
a 19 @. IN THAT CASE. WOULD THEY BE CODED AS OTHER ACQUAINTANCE OR
20 SOMETHING OF THAT NATURE?
21 A. YES.
22 @. OVER ON PAGE & WHEN YOU WERE CODING THE OTHER OFFENSES. I
23 BELIEVE YUU INDICATED THAT YOU HAD THE GEORGIA CODE PRESENT IN
24 THE ROOM WITH YOU WHEN YOU WERE CODING.
23 DID YOU READ THE STATUTORY DEFINITIONS BEFORE YOU BEGAN
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po
e CODING FOR THESE DIFFERENT CRIMES.
2 A. YES. AS I RECALL PROFESSOR BALDUS HAD GIVEN US A LIST OF
3 THESE.
4 @. A LIST OF THE CRIMES OR THE DEFINITIONS OF THE CRIMES?
S A. NO, THE DEFINITIONS.
% & @. SO YOU READ THROUGH THEM BEFORE YOU BEGAN CODING EACH
7 QUESTIONNAIRES, OR BEFORE YOU BEGAN CODING QUESTIONNAIRES, I
8 GUESS?
? A. THAT'S WHAT I RECALL. BUT THE SAME PROCEDURE IS THAT WE
10 WERE CODING IN THAT SAME ROOM THAT HAD THE GEORGIA CODES
11 AVAILABLE TO US, SO IF THERE WAS ANY QUESTION ABOUT WHETHER OR
12 NOT WE UNDERSTOOD THE DEFINITION, WE READ THE CODE.
13 @. BUT IF YOU READ THE FACTS AND DID NOT HAVE A QUESTION ABOUT
14 IT. THEN YOU DID NOT REFER TO THE CODE SECTION, WOULD THAT BE
—-
ut
| CORRECT?
16 A. THATS CORRECT.
17 MAY I ADD —-
18 QR. CERTAINLY?
Gr 19 A. THAT AGAIN, WE WERE CODING IN THIS CENTRAL ROOM WHERE WE
20 WERE SURROUNDED BY THE PROFESSIONALS AT THE DEPARTMENT OF
21 PARDONS AND PAROLES. SO WE HAD A CONSTANT SOURCE OF INFORMATION
2 FROM THEM, TO ASSIST US. |
23 @. AND DID YOU RELY ON THEM IN ANY WAY IN DECIDING WHAT FACTS
24 MIGHT CONSTITUTE A PARTICULAR CRIME?
29 A. YES, I THINK AT TIMES WE DID.
GATES - CROSS
1 @. DO YOU HAPPEN TOD KNOW IF ANY OF THE PEOPLE YOU WERE
2 DISCUSSING THIS WITH WERE ATTORNEYS?
3 A. NO, I DON'T.
4 @. ON QUESTION 30 ON PAGE 9, I BELIEVE THAT YOU CODED ITEM 7,
5 WHICH WOULD BE "BLOODY."
6 DID YOU HAVE A SPECIFIC, AND I RECALL YOU MENTIONING
7 THIS IN REGARD TO THE CHARING AND SENTENCING STUDY: I DON’T
3 RECALL AS TO THIS ONE; BUT DID YOU HAVE A SPECIFIC WAY OF
? DETERMINING WHEN A CRIME WAS BLOODY AND WHEN IT WAS NOT?
Q A. AS I RECALL, WE WERE, AS I RECALL, WE WERE FOLLOWING THE
11 SAME RULE. THAT IF THE FILE STATED IT WAS BLOODY, THEN WE WOULD
12 CODE "BLOODY."
13 @. BY THE FILE. DO YOU MEAN THE POLICE REPORT IN THIS CASE. OR
14 THE PAROLE OFFICERS REFORT, WHICHEVER?
135 A. THAT'S CORRECT.
16 @. SO YOU WERE BASING THAT DETERMINATION ON A DETERMINATION
1? MADE BY A POLICE OFFICER OR A SUBSEQUENT PAROLE OFFICER. THEN,
13 WOULD THAT BE CORRECT?
pg io A. THAT'S CORRECT.
20 @. AND THEY WOULD THEN HAVE TO INDICATE THE WORD "BLOODY" IN
21 THEIR REPORT BEFORE YOU WOULD CODE IT IN THE QUESTIONNAIRE?
22 A. POOL OF BLOOD, BLOOD, SPATTERED BLOOD.
23 @. IN PURSUING THAT JUST A LITTLE FURTHER. THEN, IF THEY JUST
24 INDICATED BLOOD SPOTS. WOULD THAT BE SUFFICIENT TQ GET "BLOODY?"
25 A. "BLOODY."
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LET ME QUALIFY THAT. IF IT SAID THERE WAS A SPECK OF
BLOOD ON THE PERSON‘S JACKET AND THAT WAS EVIDENCE THAT
CONNECTED HIM TO THE CRIME OR SOMETHING LIKE THAT, I WOULD NOT
HAVE CODED THAT "BLOODY."
@. IN CODING A CO-PERPETRATOR IN THIS PARTICULAR STUDY, I
BELIEVE YOU INDICATED AT ONE POINT IN IN YOUR TESTIMONY IT
DEPENDED ON CERTAIN FACTORS AS TO WHETHER OR NOT YOU ASSIGNED
ALL FACTORS OF AN OFFENSE OR ALL CIRCUMSTANCES OF AN OFFENSE TO
EACH INDIVIDUAL CO-PERPETRATOR. WAS THAT CORRECT?
MR. FORD: EXCUSE ME, YOUR HONOR. IS THERE A REFERENCE
TO A SPECIFIC PART OF THIS?
MS. WESTMORELAND: NO. JUST IN GENERAL. REFERRING TO
THE CODING OF CO-PERPETRATORS IN THIS STUDY.
THE WITNESS: THERE WAS A SPECIFIC RULE THAT I STATED.
BY M3. WESTMORELAND:
@. COULD YOU REPEAT THE RULE FOR ME AGAIN? IM SORRY?
A. YES. WITH RESPECT TO THE QUESTION THAT ASKS FOR THE NUMBER
OF PERSONS KILLED, AND THATS QUESTIONS NUMBER 31 AND 33. WHERE
THERE WERE CO-PERPETRATORS. AND THE CO-PERPETRATORS PARTICIPATED
IN THE VIOLENT ACTS THAT CULMINATED IN THE DEATH OF THE VICTIM,
THEN FOR THE PURPOSES OF THE QUESTIONNAIRE. YOU WOULD CODE
AFF IRMATIVELY THAT THE DEFENDANT, WHOSE QUESTIONNAIRE YOU WERE
CODING, WAS RESPONSIBLE FOR THE DEATH OF THE VICTIM.
Q. AND THAT WOULD BE IN A CASE WHERE HE PARTICIPATED IN THE
ACTION. YOU WOULD CODE IT THAT WAY. IS THAT CORRECT?
i}
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1 A. THAT“S CORRECT.
2 Q. S50 THEREFORE. IN THIS CASE. INVOLVING BILLY HARDY. YOU CODED
3 31 AS ONE PERSON ACTUALLY KILLED BY THE OFFENDER. IS THAT
CORRECT?
A. THATS CORRECT. 1]
@. EVEN THOUGH YOU INDICATED IN THE SUMMARY THAT KENNETH HARDY
4
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7 | WAS PROBABLY THE TRIGGER MAN, --
8 A. THAT’S CORRECT.
J @. -—- IS THAT CORRECT?
10 AND I BELIEVE ON QUESTION 41, ON PAGE 12, EXCUSE ME,
i1 THERE ARE ALSO REFERENCES TO CO-PERPETRATORS.
12 AND I UNDERSTAND THAT YOU ALSO HAVE CODED HERE THAT
13 THIS PARTICULAR DEFENDANT PARTICIPATED DIRECTLY AS A CO-EQUAL IN
14 THE MURDER, IS THAT CORRECT?
16 Q. ONCE AGAIN, IN SPITE OF THE FACT YOU HAD INDICATED THAT
17 KENNETH HARDY WAS THE TRIGGER MAN IN THE SUMMARY OF THE FACTS
18 YOU HAD DONE, IS THAT CORRECT?
pl 19 A. THATS CORRECT.
20 Q. ON PAGE 13, WHICH IS QUESTION 42, YOU CODED THAT THE
21 DEFENDANT HAD USED ALCOHOL OR DRUGS PRIOR TO THE TIME OR |
ae IMMEDIATELY PREVIOUS TO THE CRIMES, AND ALSO INDICATED THAT |
23 THE EFFECT WAS SLIGHT.
24 HOW DID YOU DETERMINE WHAT EFFECT ALCOHOL HAD ON THE
23 DEFENDANT? HOW DID YOU DETERMINE THESE PARTICULAR CATEGORIES?
GATES - CROSS
1 A. BY DRAWING A REASONABLE INFERENCE BASED ON A FULL READING OF
2 THE INFORMATION IN THE FILES.
3. WHAT WOULD THEN BE. I GUESS MAYBE MY APPROPRIATE QUESTION
WOULD BE. HOW DID YOU DETERMINE IT WAS SLIGHT AS OPFOSED TO
MODERATE. AS OPPOSED TO SUBSTANTIAL?
3
4
s
» é6 A. SIMPLY A JUDGMENT CALL.
7 @. WERE YOU PROVIDED WITH ANY DEFINITIONS TO UTILIZE IN MAKING
8 THIS JUDGMENT OR WERE YOU JUST MAKING A JUDGMENT CALL FROM THE
9 FACTS OF THE CASE?
1Q A. NO. AGAIN. PROFESSOR BALDUS HAD COMPLETE CONTROL ALL OF
11 THIS. WE WOULD DESCRIBE A PARTICULAR FACTUAL CIRCUMSTANCE TO
12 HIM. AND THEN. THEN HE WOULD CATEGORIZE WHAT WE HAD DESCRIBED
13 AS, YES, THAT’S AN EXAMPLE OF SUBSTANTIAL: OR I THINK THAT’S AN
14 EXAMPLE OF SLIGHT. OR THAT SORT OF THING. SO WE’RE REALLY
15 FOLLOWING HIS DIRECTION. |
16 Q. DID YOU CHECK WITH HIM IN EVERY CASE IN WHICH THE USE OF
37 ALCOHOL WAS PRESENT?
1s A. IN ANY CASE WHERE IT WASNT CLEAR FROM COUR PAST
pe 19 CONVERSATIONS WITH HIM WHAT THE PROPER CODE WAS, THEN WE WOULD
20 CHECK WITH HIM.
21 @. IF YOU HAD HAD PRIOR CONVERSATIONS THEN YOU WOULD MAKE A
22 JUDGMENT CALL THAT THAT WAS PERHAPS CONSIDERED TO BE SIMILAR TO
23 A PRIDR CASE THAT YOU HAD HAD?
24 A. THAT’S RIGHT.
23 @R. AND CODE IT YOURSELF. THEN.
354
GATES - CROSS
1 WE MOVE TO THE CHARGING AND SENTENCING STUDY. YOUR
2 PARTICIPATION IN THAT STUDY.
3 I BELIEVE, IF I RECALL. YOU MAY HAVE SAID YOU CODED ONE
4 QUESTIONNAIRE IN THAT STUDY, IS THAT CORRECT?
bw A. YES.
6 @. DID YOU THEN READ FULL FILES FOR THE FIRST ONE HUNDRED
7 CASES?
8 A. YES. I DID.
> Q. YOU STATED THAT AFTER THAT WAS DONE, FOR THE NEXT WEEK AND A
0 HALF YOU REVIEWED TWQ FILES A DAY FOR EACH CODER.
11 AT THAT TIME. WERE THERE FIVE CODERS?
12 A. FIVE AND A HALF.
13 Q. WITH THE SIXTH PERSON CODING A FEW FILES AT A TIME?
14 A. AS 1 SAID BEFORE, WHEN JACK BARKER HAD FREE TIME, WHEN HE
13 WASNT CONSUMED BY THE RESPONSIBILITY OF PULLING ALL THESE FILES
14 FIRST, THEN HE WOULD CODE CASES.
17 @. SO YOU WERE REVIEWING APPROXIMATELY TEN FILES A DAY DURING
18 THIS WEEK AND A HALF, OR, TWO PER CODER. TIMES FIVE CODERS?
® 19 A. THAT S SUBSTANTIALLY CORRECT.
20 I REMEMBER I WAS REVIEWING, I CAN REVIEW NEARLY TEN
21 FILES A DAY, BUT AS IT. AS IT, WAIT A MINUTE, LET ME THINK ABOUT
22 THIS A SECOND.
23 OKAY, FOR THE FIRST ONE HUNDRED FILES I WANTED TO MAKE
24 SURE THAT 1 REVIEWED EVERY SINGLE FILE THAT WAS CODED, BECAUSE 1
bd
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WANTED TO HAVE A, OR IN CONSULTATION WITH PROFESSOR WOODWORTH
5995
GATES - CROSS
1 AND PROFESSOR BALDUS, I WANTED TO. WE WANTED TO HAVE A DATE WHEN
2 WE WERE CONVINCED THAT THE CODING WAS GOOD BEFORE WE STARTED NOT
3 CHECKING EVERY SINGLE FILE.
4 NOW. AS IT TURNS OUT, I WAS UNABLE TO CHECK THE CODING
S OF THE QUESTIONNAIRE AGAINST THE FILE IN THE FIRST HUNDRED
w é CASES, KEEPING UP TO DATE WITH THE CODERS.
7 WHAT 1 WANTED TO KEEP UP TO DATE WITH WAS MAKING SURE I
3 WAS REVIEWING FILES OF THEIRS EVERY SINGLE DAY, AND 50. BY THE
2 TIME WE GOT TO THE STAGE WHERE THEY WERE CODING AROUND TWO FILES
10 A DAY, AND I WAS REVIEWING TEN FILES. AND I WAS REVIEWING
11 THOSE CURRENT FILES, BUT THERE WAS A SLUG OF MAYBE TWENTY CASES
12 THAT I HAON’T GOTTEN TO YET THAT I INTENDED TO REVIEW COMPLETELY
13 WITH THE FILES OF THE DEPARTMENT OF PARDONS AND FAROLES.
14 Q. WHEN YOU WERE REVIEWING THESE TWO FILES A DAY FOR EACH
15 CODER. WITH YOU REVIEWING THE ENTIRE FILE AND THE QUESTIONNAIRE
16 DONE BY THE CODER?
17 A. THIS IS WHERE MY RECOLLECTION GETS A LITTLE HAZY.
13 PROCEDURALLY WHAT I DID IS I WOULD ALTERNATE. AND
» iv? WITHIN ONE DAY I WOULD READ THE WHOLE FILE AND CHECK IT, THE
20 CODING OF THE QUESTIONNAIRE, AND ON ANOTHER DAY I WOULD READ THE |
21 SUMMARY THEY WROTE AND CHECK THE CODING OF THE QUESTIONNAIRE.
22 Q. WAS THIS DURING THAT FIRST WEEK AND A HALF YOU WERE TALKING
23 ABOUT?
24 A. THATS WHAT I“M NOT SURE OF.
25 9. AT ANY RATE. YOURE SAYING THAT ON CERTAIN DAYS, YOU DID AT |
GATES ~- CROSS
LEAST REVIEW APPROXIMATELY TEN FILES?
A. THAT'S RIGHT.
@. AND WHAT KIND OF A REVIEW DID YOU DO? I GUESS THAT'S THE
QUESTION IM TRYING TO GET AT?
A. WELL, AT THE START, I REVIEWED EVERYTHING. I REVIEWED THE
AGE OF THE DEFENDANT AND THE DATE OF THE CONVICTION AND ALL
THOSE VERY STANDARD THINGS THAT I KNEW YOU COULD FIND IN
SPECIFIC SPOTS IN THE FILE.
BUT AS TIME WENT ON», AND AS I BECAME CONVINCED THAT
THEY COULD FIND AND COMPUTE THE AGE OF THE DEFENDANT, THOSE
SORTS OF THINGS I DIDN-T INCLUDE IN MY REVIEW.
FIRST, BECAUSE THAT WAS A SIMPLE TASK, AND I WAS SURE
THAT THEY COULD DO THAT.
AND SECONDLY. AS A MATTER OF TIME I WANTED TO SPEND AT
LEAST FORTY-FIVE MINUTES ON EVERY SINGLE FILE, AND GIVE THE
DIFFICULT PORTIONS OF THE FILE PROPER ATTENTION.
@. WERE YOU REVIEWING THESE THE DAY AFTER THEY HAD BEEN CODED?
A. NO. I WAS REVIEWING THEM THE DAY THAT THEY WERE CODING THEM.
AS SOON AS THEY CODED A CASE, THEY PUT IT DOWN ON MY DESK, AND I
JUST WENT RIGHT AFTER IT. S0 THAT I AT LEAST CODED ONE CODE, 1
AT LEAST REVIEWED ONE CASE A DAY FOR EACH OF THE CODERS ON THAT
DAY.
@. AND I BELIEVE YOU SAID YOU TRIED TO SPEND ABOUT FORTY-FIVE
MINUTES ON A CASE?
A. YES.
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@Q. IF YOU WOULD LOOK AT EXHIBIT EG~4A WHICH WAS THE COMPLETED
QUESTIONNAIRE ON JOHN ATRHUR BROWN YOU PREVIOUSLY REFERRED TO.
IF I RECALL YOUR DIRECT TESTIMONY CORRECTLY IN REGARD
TO THE CRIMINAL RECORD, YOU DISCUSSED THE FACT THAT IF THE
F.B.1. RAP SHEET WAS THERE, THEN THE CRIMINAL RECORD WAS
PRESUMED RELIABLE, OR YOU TOOK THE RECORD AS BEING RELIABLE IF
THE F.B.I. RAP SHEET WAS PRESENT?
A. NO, JUST THE FELONY RECORD.
@. JUST THE FELONY RECORD?
A. THAT'S RIGHT.
@. SO THE FELONY RECORD, IF THE RAP SHEET WAS THERE, THEN IT
WAS PRESUMED TO BE A RELIABLE SOURCE OF INFORMATION?
A. THAT’S CORRECT.
@. WOULD THAT BE CORRECT?
A. THAT’S CORRECT.
THE COURT: IS THAT WHAT YOU TESTIFIED TO BEFORE?
THE WITNESS: YES, BUT WITH RESPECT TO THE RELIABILITY
SCALES, --
THE COURT: IT WAS FILED INCOMPLETE. LIST RELIABLE.
THE WITNESS: THAT’S RIGHT.
THE COURT: OKAY.
BY MS. WESTMORELAND:
@. ON QUESTION 22, ON THE SAME PAGE, THERE IS WRITTEN BELOW IT,
CODE DOUBLE ZERO EQUALS NONE?
IS THAT JUST CODING INDICATION SO THAT IF THERE ARE
GATES - CROSS
# NONE, YOU RECORD TWO ZERDES INSTEAD OF ONE OR -——
2 A. SORRY?
3 @. WHAT IS THE SIGNIFICANCE OF THAT. I GUESS?
4 |A. TWO ZEROES AS OPPOSED TO ONE?
Ss [@ VYES? :
Cr & |A. 1M NOT SURE. I THINK IT HAS SOMETHING TO DO WITH DATA
7 |ENTRY.
a |@. I JUST WONDERED IF THERE WAS THE SIGNIFICANCE OF WHAT THAT
0 PARTICULAR STATEMENT WAS. IT WAS JUST SO THAT TWO ZEROES WOULD
10 BE CODED ON THAT PARTICULAR RUESTION. THEN?
11 A. THAT MEANS NONE.
12 @. QUESTION 23, WHICH IS ON PAGE 7, YOU INDICATE THERE’S A
13 SPACE FOR TOTAL NUMBER OF YEARS INCARCERATED IN JAIL OR PRISON,
14 AND ALSO A CODE FOR WHAT AMOUNTS TO NEVER INCARCERATED.
15 WHAT SOURCE WAS USED TO OBTAIN THIS INFORMATION?
16 A. THIS IS BASED ON THE SAME INFORMATION THAT, THAT YOU USE TO
17 ANSWER THE QUESTION FOR 40.
18 Q. WHAT PARTICULAR DOCUMENT OR WAS THERE A PARTICULAR DOCUMENT?
% 19 A. THE F.B.I. RAP SHEET.
20 THE INVESTIGATION OF LOCAL CRIMINAL HISTORY.
21 | : THE INFORMATION IN THE DEPARTMENT OF CORRECTIONS FILES
22 THAT GENERALLY ADDRESS THE CRIMINAL HISTORY OF THE DEFENDANT.
23 AND HIS PERSONAL ACCOUNT.
24 @. DO YOU KNOW IF THESE FILES WOULD NECESSARILY REFLECT
23 INCARCERATION IN COUNTY JAILS? c
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339
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A. YES, I DO.
WHAT THE PAROLE PERSONNEL DID IS INVESTIGATE IN THE
AREA WHERE THE HOMICIDE OCCURRED AND IN THE, I BELIEVE IN THE
AREA WHERE THE HOMICIDE OCCURRED, BUT I“M SURE IN THE AREA WHERE
THE OFFENDER LIVED. THEY INVESTIGATED THE LOCAL POLICE FILES.
QA. 350. FROM THAT —-
A. IT’S MY UNDERSTANDING THEY WOULD REFLECT WHETHER OR NOT THAT
OFFENDER HAD BEEN INCARCERATED IN A COUNTY JAIL.
@. FROM WHAT YOU“RE SAYING, AM I TO UNDERSTAND YOU RELIED ON
THE PAROLE OFFICER‘S REPORT THEN TO OBTAIN THIS INFORMATION?
A. AS TO WHETHER OR NOT SOMEONE WAS INCARCERATED IN A LOCAL
COUNTY JAIL?
QR. YES?
A. THAT'S CORRECT.
Gl. HOW WOULD YOU OBTAIN INFORMATION. FOR INSTANCE. IF HE WERE
INCARCERATED IN A COUNTY OTHER THAN THE COUNTY WHERE THE CRIME
DCCURRED?
A. WE WOULDN’T KNOW ABOUT THAT.
IM SORRY, YOU SAID, YOU SAID OTHER THAN A COUNTY WHERE
THE CRIME OCCURRED?
@. OR IN THE COUNTY WHERE HE LIVED, EITHER ONE OF THOSE TWO?
A. OKAY. FINE.
@. SO YOUR ANSWSER IS YOU WOULDN‘T KNOW ABOUT THAT?
| Aa WE WOULDN’T KNOW ABOUT THAT.
Q. QUESTION 40, WHICH IS ON PAGE 11. THERE-“S A CODING FOR THE
GATES - CROSS
1 VICTIM’S STATUS IN RELATIONSHIP TO THE DEFENDANT. AND I THINK
2 THIS WAS DISCUSSED BRIEFLY OM DIRECT EXAMINATION.
BUT I SEE INDICATED IN QUESTION 40 THAT IT IS CODED AS
A "9" AS A FRIEND OR AN EX.
AND THE FACTUAL SUMMARY IN THE FIRST PARAGRAPH SEEMS TO
ME TO INDICATE THAT THE, ACTUALLY IT WAS A CO-PERPETRATOR WHO
WAS THE FRIEND OF THE DEFENDANT.
DOES THAT SEEM TO BE AN INCONSISTENCY, OR COULD THAT BE
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ONE OF THOSE THINGS THAT MIGHT BE REFLECTED ELSEWHERE?
10 A. ARE YOU SAYING WHAT THAT MEANS IS THAT THE VICTIM WAS THE
11 WIFE OF A CO-PERPETRATOR, AND SHE WAS. OH I SEE, THE
12 CO-PERPETRATOR IS --—
13 THE COURT: WHAT PAGE ARE YOU ON?
14 MS. WESTMORELAND: YOUR HONOR, THE QUESTION IS ON PAGE
15 11 AND THE FACTUAL SUMMARY IS AT THE VERY END, THE LAST SHEET.
16 THE WITNESS: COULD YOU REPEAT THE QUESTION?
17 BY MS. WESTMORELAND:
13 @. IN COMPARING THE TWO, THE FACTUAL SUMMARY AND THE RESPONSE
19 TO QUESTION 40, DOES IT APPEAR INCONSISTENT TO YOU, THE ANSWER
20 GIVEN, THAT THE RELATIONSHIP BETWEEN THE VICTIM AND THE 21 DEFENDANT WAS THAT OF A FRIEND. WHEREAS THE FACTUAL SUMMARY
22 APPEARS TO INDICATE THAT IT WAS THE CO-PERPETRATOR WHO WAS A
23 FRIEND OF THE DEFENDANT RATHER THAN THE VICTIM?
24 A. IT IS DIFFICULT TO DETERMINE THAT. I CAN“T, I CAN-"T TELL.
23 @. ON PACE 13, QUESTION 43, I SEE THAT A "1" IS CODED BY THE
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HANDWRITTEN INSURANCE PROVISION. AND IN READING THE FACTUAL
SUMMARY AGAIN, IT APPEARS THAT IT’S THE CO-PERPETRATOR WHO WAS
ACTUALLY PERHAPS THE BENEFICIARY OF THE INSURANCE. BUT WAS GOING
TO PAY THE FUNDS TO THE PARTICULAR DEFENDANT.
WOULD THAT BE CLASSIFIED AS INSURANCE MOTIVE. RATHER
THAN A MONEY MOTIVE?
A. YES. BECAUSE IT’S JUST A MORE SPECIFIC CODING. IT SAYS IN
THE SUMMARY AT THAT PLACE WHERE THERES THREE STARS THAT THE
DEFENDANT, THAT THERE WAS A LIFE INSURANCE POLICY ON THE VICTIM,
NAMING THE DEFENDANT AS BENEFICIARY.
AND SO IN A CASE LIKE THAT. THE CODER WOULD CODE THAT
WAY.
THE COURT: HOW WOULD YOU CODE A MURDER FCR HIRE CASE
IN QUESTION 437
THE WITNESS: I THINK I NEED TO CONSULT THE
INSTRUCTIONS ON THAT. THE REASON I HESITATED WAS BECAUSE THAT
| CODING HAS OCCURRED BEFORE. AND IT’S HAPPENED IN SEVERAL OF THE
CASES, AND SO THERE IS A SPECIFIC ANSWER TO IT, I DON’T RECALL
RIGHT NOW, BUT IT WAS EITHER CODED UNDER "OTHER." 14% AND WRITE
IN "MURDER FOR HIRE," OR A DIFFERENT RULE. BUT THAT PARTICULAR
QUESTION WAS SPECIFICALLY ADDRESSED.
THE COURT: WHAT WOULD BE WRONG IN USING 1427
THE WITNESS: THERE WOULDN’T BE ANYTHING WRONG WITH IT.
THERE WOULD ONLY BE SOMETHING WRONG WITH IT IF WE HAD DESIGNATED
A SPECIFIC CODE FOR IT.
|
GATES - CROSS
PE
WHAT WE WERE TRYING TO DO IS SEPARATE. DISTINGUISH
SITUATIONS AS SPECIFICALLY AS WE COULD, AND 30 IF THERE WAS AN
INSTANCE LIKE MURDER FOR HIRE THAT OCCURRED FREQUENTLY ENOUGH,
THAT WOULD BE A REASON WHY WE WOULD DESIGNATE A SPECIFIC CODE
FOR IT.
BY MS. WESTMORELAND:
@. ON PAGE 15, QUESTION 47, PART B, THERE“S A PROVISION FOR
EXECUTION STYLE HOMICIDE WHICH WAS CODED IN THIS CASE. AND IN
of
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PARENTHESES, IT INDICATES HOMICIDE AGAINST SUBDUED OR PASSIVE
Py
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Py
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WAS THAT THE GENERAL RULE OR INSTRUCTION GIVEN FOR
12 CODING EXECUTION STYLE HOMICIDE?
13 A. I THINK THERE-“S MORE INSTRUCTION.
14 THE COURT: WHAT’S THAT?
15 THE WITNESS: IN DB-43.
16 THE COURT: WHATS YOUR PAGE?
17 MS. WESTMORELAND: PAGE 1S, YOUR HONOR.
5 18 THE WITNESS: OKAY, THERE‘S AN EXAMPLE STARTING AT THE
pA 19 TOP OF PAGE 19 IN THE INSTRUCTIONS AND THEN THERE‘S A SPECIFIC
20 DEFINITION THAT SAYS THE VICTIM SUBMITS TO THE WILL OF THE
21 DEFENDANT AND MAKES NO ATTEMPT TO RESIST, ESCAPE OR INTERFERE.
22 AND THEN THERES ANOTHER EXAMPLE.
23 THE COURT: YOU“RE ON PAGE?
24 THE WITNESS: 19 OF THE INSTRUCTIONS.
23 BY MS. WESTMORELAND:
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146
GATES - CROSS
@. THE SUBSEQUENT PAGES -— YES?
A. 1 WAS JUST GOING TQ SAY I THINK THAT THERE“S A, SECOND
SENTENCE OF THOSE INSTRUCTIONS. THE DIVIDING LINE, IT JUST HELPS
TO CLARIFY THE DEFINITION, THE DIVIDING LINE IS AN INTENTION OF
THE KILLER TO PUT THE VICTIM IN A THOROUGHLY DEFENSELESS
POSITION.
@. BEGINNING ON ABOUT, WELL, BEGINNING AT QUESTION 48 ON PAGE
16, THERE ARE SEVERAL PAGES OF QUESTIONS DEALING WITH
CO-PERPETRATORS.
WHERE WAS THE INFORMATION OBTAINED FOR THE
CO-PERPETRATORS IN CODING THESE QUESTIONNAIRES?
A. AS A GENERAL RULE, WHERE THERE WAS A CO-PERPETRATOR AND THE
CO-PERPETRATOR WAS IN THE STUDY, ONE, IT WAS EVIDENT THAT THERE
WAS A CO-PERPETRATOR IN THE CASE, THE CODER WOULD GIVE THAT FILE
TO JACK BARKER, AND HE WOULD PULL THE OTHER FILES, AND SO THE
CODER WOULD HAVE ALL THE FILES TO LOOK FROM, AND THAT'S THE WAY
WE WOULD GET THE INFORMATION ABOUT THE CO-PERPETRATORS.
@. SO THEN YOU WOULD ACTUALLY PULL THE ENTIRE FILE ON THE
CO-PERPETRATOR OR WOULD YOU PULL A GUESTIONNAIRE THAT HAD BEEN
COMPLETED ON THAT CO-PERPETRATOR?
A. NO. THE GENERAL RULE WAS THAT THE CO-PERFETRATOR FILES WERE
CODED AT THE SAME TIME.
?. BY THE SAME PERSON, YOU MEANY
A. NOT ALWAYS.
Q. IN THIS SAME SET OF QUESTIONS ON PAGE 19. YOU DISCUSSED
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UNDER CODE D, THE TESTIMONY OF THE CO-PERPETRATOR.
DID I UNDERSTAND YOU CORRECTLY TO SAY THAT THIS DID NOT
REFER TO THE CO-PERPETRATOR TESTIFYING AT THIS PARTICULAR
DEFENDANTS TRIAL?
A. NO. I WAS TRYING TO ILLUSTRATE THAT UNDER CODE D. 1, 2, 3
AND 4 REPRESENT DIFFERENT SITUATIONS. I WAS JUST TRYING TO
BRING OUT, THAT TO THE COURT“S ATTENTION.
@. FOR INSTANCE. NUMBER ONE WOULD REPRESENT TESTIFYING AT THE
CO-PERPETRATOR’S TRIAL, THEN?
TI
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A. THAT WOULD BE THE CO-PERPETRATOR TESTIFYING ON HIS OWN
i
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S BEHALF AT HIS TRIAL.
12 @. IN ORDER TO DETERMINE THAT INFORMATION, THEN. WOULD YOU PULL
13 THE CO-PERPETRATOR’S FILE TO MAKE THAT DETERMINATION?
14 A. YES. I THINK THAT“S CORRECT. IF THE DEPARTMENT OF PARDONS
15 AND PAROLES. IF THERE WAS A QUESTION THAT CAME UP, AND
16 GENERALLY, YOU HAD ALL THESE FILES WITH YOU AT THE DEPARTMENT OF
17 PARDONS AND PAROLES. SO YOU WOULD BE CONSULTING THEM ALL.
13 @. SKIPPING OVER, IF YOU WOULD, TO PAGE 23.» QUESTION 353.
® 19 DISCUSSING THE DEFENDANT’S DEFENSES.
20 IF I RECALL YOUR TESTIMONY CORRECTLY. YOU STATED THAT
<1 THIS COULD REFER EITHER TO DEFENSES ASSERTED AT TRIAL OR
a ASSERTED IN THE POLICE REPORT OR ASSERTED TO THE POLICE, IS THAT
23 CORRECT? |
24 A. THATS CORRECT.
8)
IT
@. BUT THAT’S NOT BROKEN DOWN IN THIS QUESTION BETWEEN THE TWO
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PLACES?
A. NO. ITS NOT.
Q. PAGE 28, QUESTION 43B. THIS PARTICULAR QUESTION ASKS IF THE
DEFENDANT GAVE CONFLICTING STATEMENTS TO THE POLICE.
WAS THIS STATEMENT CODED "YES" ONLY IF THE DEFENDANT
GAVE MORE THAN ONE STATEMENT AND THEY CONFLICTED?
A. I THINK THAT’S CORRECT.
@. THE OTHER PART OF THAT QUESTION, THEN, WOULD BE IF THE
DEFENDANT WAS GIVING ONE STATEMENT BUT MADE CONFLICTING
STATEMENTS WITHIN THIS PARTICULAR, DIFFERENT SENTENCES WERE
CONFLICTING PERHAPS, HOW WOULD THAT BE CODED ON THAT PARTICULAR
QUESTION?
A. I DON’T RECALL THAT EVER HAPPENING. IN THIS CASE, I“D HAVE
TO CALL PROFESSOR BALDUS AND CONSULT HIM.
Q. ON 630, ON THE SAME PAGE, THE QUESTION REFERS TO A PERIOD OF
DIMINISHED RESPONSIBILITY, AND GIVES EXAMPLES OF VOLUNTARY
MANSLAUGHTER OR INVOLUNTARY MANSLAUGHTER?
A. I’M SORRY, WHAT QUESTION?
QR. 63D. ALSO ON PAGE 28.
ON THAT PARTICULAR QUESTION, WOULD THE ONLY WAY OF
GETTING A "YES" ANSWER BE TO HAVE FACTS WHICH WOULD SUPPORT A
SHOWING OF EITHER VOLUNTARY OR INVOLUNTARY MANSLAUGHTER?
A. WITH A QUESTION LIKE THAT, AT THE TIME I WOULD ALWAYS RELY
ON PROFESSOR BALDUS. I HAD NOT GONE TO LAW SCHOOL AT THAT TIME.
SO WHAT I WOULD DG IS IF. IF THERE WAS A QUESTION OF THE PROPER
— — —— ——— — BE - —_—— ee A —, ——— i ——— ——. S———— —— —— ——— . ———— ———
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WAY TO CODE THAT QUESTION NUMBER 63D, THEN I WOULD BRING IT TO
THE ATTENTION OF PROFESSOR BALDUS.
R. WAS THERE ANY SPECIFIC RULE IN RELATION TO THIS QUESTION
THAT IT HAD TO JUSTIFY A FINDING OF EITHER VOLUNTARY
MANSLAUGHTER OR INVOLUNTARY MANSLAUGHTER? OR WAS THERE SOME
OTHER DEFINITION TO DIMINISHED RESPONSIBILITY?
A. I REALLY DON’T RECALL.
THE COURT: YOU. WHEN WE DISCUSSED THIS QUESTION BEFORE
YOU OR COUNSEL LEFT A SUGGESTION AMONG THE RECORD THAT YOU
REALLY CHECKED THIS ONE “YES" WHEN THERE MIGHT BE A FOSSIBILITY
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11 THAT HE WAS UNDER THE INFLUENCE OF DRUGS OR ALCOHOL OR THAT SORT
12 OF THING.
13 IS THAT WHAT YOU USED THE QUESTION FOR, OR WERE YOU
14 TRYING TO MAKE FINER LEGAL JUDGMENTS?
135 THE WITNESS: NO. I DON‘T THINK WE WERE TRYING TO MAKE
16 FINER LEGAL JUDGMENTS THAN THAT.
17 | THE COURT: WELL, IN ADDITION TO INTOXICATION, CAN YOU
1S | THINK OF SOME OTHER FACTS WHICH MIGHT HAVE APPEARED WHICH MIGHT
® 19 HAVE MADE THESE CODERS CODE THAT "YES?"
20 THE WITNESS: YES. IF THE, FOR EXAMPLE, IF THE
21 DEFENDANT SAID LIKE VICTIM CAME AT ME WITH A KNIFE. OR IF THEY
22 DISCUSSED A HEATED ARGUMENT, SOME AGREE OF PASSION INJECTED INTO
23 THE CIRCUMSTANCES OF THE CRIME.
24 BY MS. WESTMORELAND:
25 @. IF YOU COULD, I WOULD LIKE TQ LOOK AT TWO DIFFERENT
i
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QUESTIONS. THAT APPEAR ON DIFFERENT PAGES.
ON PAGE 24, UNDER GUESTION 43, PART B OF THAT QUESTION
REFERS TO A STATEMENT BEING MADE BY A CO-PERPETRATOR DOWN AT THE
BOTTOM OF THE PAGE.
A. YES.
@. WOULD THAT INFORMATION BE OBTAINED FROM THE PAROLE OFFICER’S
REPORT?
A. THAT’S CORRECT.
Q. THEN ON PAGE 2% AT THE TOP, QUESTION 64 IS A QUESTION
RELATING TO WHETHER THAT STATEMENT OF THE CO-PERPETRATOR
IMPLICATED THE DEFENDANT.
WOULD THAT INFORMATION ALSO BE OBTAINED FROM THE PAROLE
OFFICER‘S REPORT?
A. IT WOULD BE OBTAINED FROM ALL THE SOURCES WE WERE USING. I
MEAN THAT’S NOT THE EXCLUSIVE DOCUMENT THAT WE WERE REFERRING
TO. SO IT WOULD DEPEND ON WHAT OUR SOURCES WERE.
IF THE CASE WERE APPEALED AND WE HAD A SUPREME COURT
OPINION AND THAT CAME FROM THE SUPREME COURT OPINION. THEN
THATS WHERE WE GOT THE INFORMATION.
@. WOULD YOU REFER TO THE CO-PERPETRATOR‘S FILE TQ DETERMINE
THE ANSWER TO THIS QUESTION?
A. LIKE I SAID, WHERE THERE WERE CO-PERPETRATORS THAT WERE IN
THE STUDY, THEN THE CODER WOULD HAVE HAD AVAILABLE IN FRONT OF
THEM BOTH FILES.
@. AND WOULD HAVE REFERRED TO THEM?
P—_. A——————— — ———— r——— - — —— fa———— —— ——. p—— —— ——. A——— A —— ———. A —— A —. — A ——— Pre
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F
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A. CERTAINLY.
@. WHAT WOULD BE THE CASE IN CODING QUESTION &4 IF THE ONLY
INFORMATION YOU HAD WAS THAT A STATEMENT WAS GIVEN BY A
CO-PERPETRATOR BUT YOU HAD NO REFLECTION AS TO WHETHER CR NOT
THAT STATEMENT IMPLICATED THIS DEFENDANT?
A. IN A CASE LIKE THAT. WHAT YOU WOULD DO IS. ON QUESTION
NUMBER 43, YOU WOULD CODE THAT THE CO-PERPETRATOR MADE A
STATEMENT.
AND THEN UNDER "OTHER" CONCERNING THE. HOLD ON A
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SECOND. ALL RIGHT? I TAKE THAT BACK. IT OCCURS TO ME AFTER
11 LOOKING AT QUESTION 44 AGAIN, THAT THE PROPER CODE FOR THAT
12 WOULD BE THAT. YES, THERE WAS A STATEMENT MADE. BUT THEN UNDER
13 VARIABLE. FOIL NUMBER 433, THAT YOU WOULD, YOU WOULD CHECK
13 "UNKNOWN" WHICH INDICATES THAT A CO-PERPETRATOR IMPLICATED THE
15 DEFENDANT IN, AND THAT WOULD BE UNKNOWN.
16 @. SO YOU WOULD INDICATE "YES" TO QUESTION 44 WHICH ASKS IF
17 THERE WAS A STATEMENT GIVEN BY THE CO-PERPETRATOR TO THE
18 AUTHORITIES IMPLICATING THE DEFENDANT, BUT THEN GO DCWN IN &64B
A 12 | AND INDICATE "UNKNOWN" AS TO WHETHER THE DEFENDANT WAS
20 | IMPLICATED?
21 MR. FORD: OBJECTION. YOUR HONOR. I BELIEVE COUNSEL
22 MISREAD WHAT QUESTION 64 SAYS.
23 MS. WESTMORELAND: IF I DID, I APOLOGIZE. I WILL
24 REREAD THE QUESTION, THEN.
23 BY MS. WESTMORELAND:
fo
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10
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Q. QUESTION &4 AS I READ IT INDICATES. STATES THAT THE FILE
INDICATES THERE WAS A CO-PERPETRATOR. WHO GAVE A STATEMENT
TO THE AUTHORITIES, IMPLICATING DEFENDANT.
SO IN THAT SITUATION YOU WOULD CODE "YES" TO THAT
PARTICULAR QUESTION, IS THAT WHAT YOU INDICATED?
A. YOU’RE, YOU“RE STRETCHING MY ABILITY TO RECALL WITHOUT
REFERENCE TO FILES OR THINGS LIKE THAT. IT’S BEEN A LONG TIME.
BUT I DON’T MEAN TO VACILLATE SO MUCH. IT’S BEEN TWO
YEARS SINCE IVE CONSIDERED THIS KIND OF QUESTION.
BUT IT’S VERY LIKELY THAT IN THAT CIRCUMSTANCE WHERE
THE WAY THE QUESTION INDICATES. FILE INDICATES THERE WAS A
STATEMENT IMPLICATING DEFENDANT, HE WOULD SIMPLY ANSWER THAT
GUESTION, NO.
@. WOULD YOU LOOK ON PAGE 20, QUESTION 664A.
UNDER 646A, FIRST OF ALL, COULD YOU JUST EXPLAIN THE
CODING IN THIS QUESTION. AND TELL ME WHAT THIS CODING INDICATES
AS TO THE DEFENDANT AND AS TO THE CO-PERPETRATOR AS IT IS CODED
IN THIS QUESTIONNAIRE?
A. WELL, I CAN TELL YOU WHAT THE CODING INDICATES.
R. THAT”S ALL I‘M ASKING?
A. OKAY. THE CODING INDICATES THAT FOIL NUMBER 4352 THAT THERE
WERE TIRE TRACKS AT THE SCENE OF THE, SCENE OF THE CRIME THAT,
THAT LINKED THE DEFENDANT TO THE COMMISSION OF THAT CRIME.
@. AND THEN IN RELATION TO THE CO-PERPETRATOR. WHAT DOES THAT
CODING INDICATE?
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1 A. SAME THING. AT FOIL NUMBER 45, ONLY AT THIS TIME LINKING THE
2 CO-PERPETRATOR TO THE CRIME.
AND THEN ALSO, UNDER CO-PERFETRATOR. THERES THE CODE
4: THAT THERE WAS TRACE EVIDENCE ON THE CO-PERPETRATOR”S
CLOTHING. AND THAT WAS BLOOD.
3
4
S
rs é @. THEN IF YOU WOULD TURN TO QUESTION 64B ON PAGE 31, IN THE
7 ANSWER TO GIVE TO THAT QUESTION. WAS A "3" WHICH AS I UNDERSTAND
8 MEANS FOUND ON DEFENDANT’S PERSON UPON ARREST. IS THAT CORRECT?
? A. THAT’S CORRECT.
10 Q. AND I SEEM TO RECALL YOUR DIRECT TESTIMONY INDICATING
11 SOMETHING TO THE EFFECT OF REFERRING BACK TO THE BLOOD ON THE
12 CLOTHING. WAS THAT A CORRECT STATEMENT OF YOUR DIRECT
13 TESTIMONY?
14 A. THAT’S RIGHT.
15 @. IS THAT INCONSISTENT WITH &4A. WHICH INDICATES THE BLOOD WAS
16 FOUND ON THE CLOTHING OF THE CO-PERPETRATOR?
17 A. NO. IN THIS QUESTION. IT SAYS HOW IS THE PROPERTY CONNECTED
18 TO THE ACCUSED. AND WE DON’T HAVE A, WE JUST DON'T HAVE A
pe 19 SEPARATE COLUMN FOR DEFENDANT. CO-PERPETRATOR. SO YOU ONLY HAVE
20 ONE CHOICE, ONE PLACE WHERE CAN ENTER THAT IN.
21 THE COURT: HOW DO WE KNOW WHAT PROPERTY YOU'RE TALKING
—e ABOUT?
23 THE WITNESS: OH. I“M SORRY. WELL. UP AT THE TOP, IT
24 SAYS IF THE ANSWER TO QUESTION L6A WAS 4, 46, 7, OR 8, YOU CAN
23 TURN BACK TD &6A AND THE ONLY ONE THATS 4, 6, 7 OR 8 IS NUMBER 6&9
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1 AND THAT RELATES TO CO-PERPETRATOR., NOT TQ THE DEFENDANT.
2 BY MS. WESTMORELAND:
@. WOULD NOT A MORE PROPER CODING OF THAT CASE BE A "4" RATHER (
THAN A "3" UNLESS WE ASSUME THAT THE CO-PERPETRATOR’S CLOTHING
a
WAS FOUND ON THE DEFENDANT, I PRESUME.
& A. I THINK I SEE THE PROBLEM YOURE HAVING.
7 IT’S A DEFECT IN THE QUESTIONNAIRE TO THE EXTENT THAT
a8 IT DOESN‘T REPRESENT TO SOMEONE WHO HAS NEVER SEEN IT BEFORE
? EXACTLY WHAT“S GOING ON HERE. AND NUMBER &é, ALTHOUGH IT SAYS
0 THE DEFENDANT, IT WAS AN OVERSIGHT. IT SHOULD SAY ACCUSED.
t 5 THESE ARE GENERIC FOILS, OR GENERIC POSSIBLE CODES AT
12 THE TOP. AND THEY CAN BE ENTERED WITH RESPECT TQ EITHER THE
13 DEFENDANT OR CO-PERPETRATOR.
14 THE COURT: IT“S HARD NOT TO, IT’S HARD TO KEEP SIGHT
13 OF HOW WE“RE GATHERING THIS INFORMATION, AND I REALLY DON-T
16 KNOW, BECAUSE I HAVEN’T SEEN THE PUDDING AS MR. FORD AND I
37 TALKED ABOUT YESTERDAY. 18 BUT I ASSUME ALL OF THIS IS IN AID OF SHOWING WHAT THE
® 19 CASE WAS AGAINST THE DEFENDANT.
20 WOULD YOU AGREE WITH ME THAT THIS ENTRY SHOWING THAT
21 PHYSICAL EVIDENCE WAS FOUND ON THE DEFENDANTS PERSON IS
22 MISLEADING IF WE“RE TRYING TO UNDERSTAND HOW STRONG THE CASE WAS
23 AGAINST THE DEFENDANT?
24 THE WITNESS: YES, SIR, I THINK THATS S0.
25 BY MS. WESTMORELAND:
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Q@. MR. GATES. WOULD YOU REFER BACK, IF YOU WOULD, TO PAGE 26,
QUESTION 42D.
THAT QUESTION REFERS TO THE, WHETHER THERE WAS ANY
PROBLEM WITH THE CREDIBILITY OF THE WITNESS. AND I BELIEVE YOUR
TESTIMONY PREVIOUSLY ON DIRECT EXAMINATION WAS UNLESS THERE WAS
SOMETHING SPECIFICALLY STATED IN REGARD TO CREDIBILITY, THEN YOU
WOULDN’T HAVE, YOU WOULDN“T KNOW ONE WAY OR THE OTHER, IS THAT
CORRECT. UNLESS IT WAS SPECIFICALLY STATED IN THE FILE. YOU
WOULD NOT CODE IT "YES." IS THAT CORRECT?
A. THAT'S RIGHT.
R. SO OTHER THAN WHAT IS SPECIFICALLY STATED IN, I GUESS, FOR
INSTANCE THE POLICE REPORT OR SOME OTHER DOCUMENT OF THAT
NATURE. YOU WOULD HAVE NO INFORMATION ON CREDIBILITY, WOULD THAT
BE CORRECT?
A. OTHER THAN THE INFORMATION AVAILABLE TO US IN THE FILES, WE
HAD NO OTHER INFORMATION.
THE COURT: I UNDERSTAND YOUR TESTIMONY TO BE THAT YOU
MADE NO INFERENCES FROM ANY FACT APPEARING IN THE FILE
CONCERNING THE CREDIBILITY OF THE WITNESSES. THE EXAMPLE I GAVE
YOU BEFORE LUNCH WAS. WOULD BE THAT THE FILE SAID THE PRINCIPAL
WITNESS, A PROSTITUTE, SAID THAT SHE SAW.
YOU WOULD NOT MAKE ANY INFERENCE ABOUT THE CREDIBILITY
OF THAT WITNESS, BASED ON THE ENGAGEMENT IN FROSTITUTION.
THE WITNESS: NO.
THE COURT: HOW ABOUT IF IT SAID THE PRIME WITNESS. A
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i CONVICTED FELON. SAID THAT HE SAW THE DEFENDANT DO SUCH AND
< SUCH?
3 THE WITNESS: NO. I THINK HE WOULD HAVE CODED THAT
4 AFFIRMATIVELY.
3 BUT THAT SORT OF AMBIGUITY WOULD HAVE EITHER. IF WE
, & KNEW THAT INFORMATION. WOULD HAVE BEEN BROUGHT QUT IN THE
7 SUMMARY OF THE AMBIGUITIES.
8 BUT FOLLOWING THE RULES WE HAD FOR CODING, WE WOULD NOT
@ HAVE CODED THAT AFFIRMATIVELY.
10 Ms. WESTMORELAND: MAY I HAVE JUST ONE MOMENT. YOUR
11 HONOR, PLEASE?
12 THE COURT: WHAT WAS THE QUESTION NUMBER WE WERE JUST
13 DISCUSSING ON THE WITNESS” CREDIBILITY?
is MR. FORD: I BELIEVE IT WAS QUESTION 42D, YOUR HONOR.
15 THE COURT: THANK YOU.
16 MR. FORD: PAGE 26.
17 MS. WESTMORELAND: YOUR HONOR, I HAVE NO FURTHER
13 QUESTIONS, FOR MR. GATES AT THIS TIME.
19 I WOULD LIKE TO ASK THAT WE POSSIBLY HAVE MR. GATES
20 AVAILABLE FOR RECALL AT A LATER PERIOD DURING THIS HEARING.
23 THE COURT: I THOUGHT WE WOULD.
22 MS. WESTMORELAND: THANK YOU.
23 MR. FORD: YOUR HONOR, I DO HAVE SOME REDIRECT. IT LL
24 BE BRIEF, BUT WITH REGARD TO THE LAST MATTER, I“M SURE THE COURT |
235 HEARD MR. GATES IS EMPLOYED, LEGAL INTERN, LAW FIRM IN BOSTON,
et A, S— — | —— p—————- w—— ————— ——— ———————
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1 MASSACHUSETTS. I CERTAINLY HOPE THAT IF COUNSEL POSSIBLY CAN,
ANY QUESTIONS DIRECTED TO HIM, HES BEEN HERE SINCE I THINK
MONDAY.
THE WITNESS: SUNDAY.
THE COURT: I“M SYMPATHETIC, AND I THOUGHT ABOUT IT
MYSELF BEFORE THE BREAK WITHOUT KNOWING WHAT MS. WESTMORELAND” S
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VIEW WAS. HAVING NOT SEEN THE STUDY. AND HAVING, NOT KNOWING
HOW THE, WHICH DATA WAS MASSAGED HOW TO REACH WHAT CONCLUSION. I
3%
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AM NOT IN A POSITION TO KNOW WHETHER THAT PARTICULAR DATA WAS
10 GATHERED IN A RELIABLE FASHION OR NOT. AND UNTIL I KNOW WHAT
11 DATA IS RELIED UPON TO REACH WHICH CONCLUSION I CANT AND I AM
12 SURE MS. WESTMORELAND CAN‘T, DETERMINE WITH UTTER PRECISION WHAT
13 WE NEED TO KNOW. AND IT SEEMS RATHER CLEAR THAT PROFESSOR
14 BALDUS NOR ANYONE ELSE IS AS FAMILIAR WITH HOW THE DATA WAS
13 ACTUALLY CODED AS IS THIS WITNESS. IM SORRY, I JUST CAN’T LET
16 HIM GO IF WE“RE TO HAVE THIS HEARING.
17 MR. FORD: COULD I HAVE A MOMENT, YOUR HONOR?
19 HE IS FREE TO G0 SUBJECT TO RECALL, TO RETURN TO
19 MASSACHUSETTS, SUBJECT TO THE JURISDICTION OF THIS COURT, IF THE
20 COURT ORDERS HIM TO RETURN?
21 THE COURT: WELL, --
22 MR. FORD: IS THERE ANY QUESTIONS I CAN DIRECT TO MR.
23 GATES THAT MIGHT CLARIFY ANY QUESTION IN THE COURT’S MIND THAT
24 COULD FERHAPS ALLOW HIM TO DO THAT, ON THE ASSURANCE HE WOULD
23 COME BACK, AND, UNDER WHICH HIS CIRCUMSTANCES ARE? IF SO, I
575
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1 WOULD ASK PERMISSION TO ASK THEM TO HIM FOR -—-
THE COURT: MR. GATES SEEMS LIKE A FINE FELLOW AND I
BELIEVE HE’LL BE A GOOD AND HONORABLE LAWYER. THAT’S NOT THE
2
3
4 ISSUE. THE ISSUE IS WE ARE HERE TO HEAR THIS EVIDENCE AT THIS
3 TIME. BECAUSE OF THE WAY YOU HAVE CHOSEN TO PUT UP YOUR CASE,
1 AND I DONT MEAN TO MAKE THIS SOUND CREDIBLE, —- OR CRITICAL
7 BECAUSE IT’S NOT —- BUT BECAUSE OF THE WAY WAY YOUVE CHOSEN TO
8 PUT IT UP, SO THAT YOU‘RE PUTTING UP YOUR METHODOLOGY FIRST
? BEFORE YOUR CONCLUSIONS, UNTIL I SEE YOUR CONCLUSIONS AND UNTIL
0 THEYRE PUT UP AND TESTIFIED ABOUT, NOBODY KNOWS WHAT TO THINK
11 ABOUT YOUR METHODOLOGY AS IT MAY IMPACT ON YQUR CONCLUSIONS.
12 I INTEND TO FINISH THIS HEARING FROM DAY TO DAY. AND I
13 DON’T KNOW WHAT YOU“VE GOT PLANNED FOR ME. OR HOW LONG IT WILL
14 TAKE.
15 MR. FORD: PERHAPS THEN A QUESTION DIRECTED TO MR.
16 GATES, NUMBER ONE, CERTAINLY WITH REGARD TO HIS UNDERSTANDING AS
17 TO HIS RESPONSIBILITIES TO RETURN IMMEDIATELY UPON THIS COURT'S
18 ORDER.
pS 12 AND NUMBER TWO, A QUESTION WITH REGARD AS TO HOW FAST
20 HE COULD DO THAT. I BELIEVE HE COULD PERHAPS GET HERE IN A
21 MATTER OF JUST A FEW HOURS. IF THAT DID COME UP, YOUR HONOR.
22 THE COURT: WELL, YOU COULD HELP ME MOST BY LETTING MR. |
23 BOGER SPEAK TO HOW MUCH EVIDENCE, UNDER A FAST TRACK, I“M GOING
24 TO HEAR BEFORE I WILL HAVE HEARD ABOUT THE PUDDING. IN OTHER
23 WORDS, BEFORE I WILL HAVE HEARD IN SOME DETAIL ABOUT HOW THIS
376
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Pa
y DATA WAS USED, AND WHAT’S CONCLUDED FROM IT.
MR. BOGER: YOUR HONOR, WE ARE AT 3:15 NOW, WEDNESDAY
AFTERNOON. MY BEST ESTIMATE IS THAT UPON PROFESSOR BALDUS”
RESUMPTION OF THE STAND, WE ARE BETWEEN AN HOUR, HOUR AND A HALF
AWAY FROM BEGINNING TO TALK ABOUT THE DATA HE COLLECTED.
WE COULD, EXCUSE ME. TALKING ABOUT THE ANALYSIS OF THE
we,
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DATA THAT HE COLLECTED. BEGIN TO TALK ABOUT THE NUMBERS.
HIS EXPERT OPINION COULD BE PUT IN AT THE END OF THE
L
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HEARING, WOULD ACTUALLY PRECEDE THAT ANALYSIS. THOSE EXPERT
10 OPINIONS, OF COURSE, A SUMMARY, THEYRE NOT THE SAME AS THE DATA
11 THAT HE WILL POINT THE COURT TOWARD.
12 BUT MY ESTIMATION IS THAT WE“RE NO FURTHER THAN A DAY
13 AWAY FROM A COURT’S FULL UNDERSTANDING OF THE RANGE OF THE DATA
14 THAT PROFESSOR BALDUS HAS FOR THE COURT.
15 I MEAN BY THAT, WE MAY NOT BE FINISHED BY TOMORROW
16 AFTERNOON, BY 3:30, BUT I THINK THERE WILL BE LITTLE DOUBT IN
17 THE COURT’S MIND OF THE SUBSTANCE OF THE PUDDING, IF YOU WOULD.
18 BY THEN, "IF ==
® 19 MR. FORD: IF THE COURT‘S QUESTION -- PERHAPS COUNSEL
20 AND I HAVING A CONVERSATION HERE WHICH UNFORTUNATELY WE HAVE
21 RARE OPPORTUNITIES TO HAVE ABOUT TIMING, BUT I SHOULD INFORM THE
22 COURT THAT 1 JUST SENT WORD TO PROFESSOR BERK THAT WE DON'T
23 EXPECT TO CALL HIM UNTIL MONDAY, AND HE IS PART OF OUR DIRECT
24 CASE. SO IF THE COURT’S QUESTION IS DIRECTED TO WHEN DO WE
23 EXPECT TO REST. IT IS MY UNDERSTANDING THAT OUR JOINT OPINION IS
377
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Fy
NOT THIS WEEK, HOPEFULLY VERY EARLY NEXT WEEK.
2 THE COURT: WELL, LET ME THINK ABOUT IT SOME. AND AFTER
3 YOU ALL DECIDE WHEN YOU THINK YOU MAY REST ON A LITTLE BIT
4 FASTER TRACK THAN WE“VE BEEN RUNNING, GET MS. WESTMORELAND’S
b= OPINION BASED ON ON WHAT SHE“S SEEN AND HEARD SO FAR, AS TO HOW
& LONG HER CASE MAY BE, AND REPORT BACK TO ME IN ABOUT TEN
7 MINUTES.
3 I SAID IN YOUR ABSENCE YESTERDAY. MR. BOGER. AND IN
? PART OF WHAT I SAID TO MR. FORD GOES ALONG THESE LINES.
10 I DON-T KNOW, BECAUSE I HAVEN’T SEEN THE STATES
11 ANSWERS TO YOUR INTERROGATORIES, NOR HAVE I BEEN PRIVY TO THE
12 DISCUSSIONS THAT YOU HAVE HAD, WHAT PROBLEMS THE STATE HAS WITH
13 THIS EVIDENCE.
14 WE HAVE IN MY VIEW SPENT ENTIRELY TOO LONG INDICATING
15 THAT DOCTOR BALDUS ET AL TRIED TO BE PRECISE ABOUT ALL THIS.
16 AND I GUESS A CERTAIN AMOUNT OF THIS IS CERTAINLY NECESSARY.
17 BUT WHAT I INDICATED TO MR. FORD YESTERDAY, AND I WISH
18 TO INDICATE TO YOU NOW, IS THAT I WANT TO GET OUT FRONT WITH
pS 19 WHAT YOUR EVIDENCE IS, AND FIND QUT WHAT IT IS, AND THEN WE-“LL
20 FIND OUT FROM THE STATE WHAT THEIR PROBLEMS ARE WITH THAT,
21 AND THEN IF YOU NEED TO BOLSTER, YOU CAN DO THATT IN REBUTTAL. |
22 MR. BOGER: WELL, I THINK IN GENERAL TERMS YOUR HONOR, |
23 THATS OUR INTENTION, UPON THE RESUMPTION OF THE STAND BY |
24 PROFESSOR BALDUS., THAT“S WHERE WE“RE HEADED. WE MAY BE AN HOUR
25 AWAY FROM IT IN TERMS OF HOW YOU GET DATA FROM QUESTIONNAIRES
373
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1 INTO ANALYSIS. BUT ANALYSIS WOULD COME THIS AFTERNOON IF WE
2 RESUME THE STAND QUICKLY ENOUGH, WILL CERTAINLY BE THE SUBJECT
OF, I SAY ANALYSIS. I“M TALKING ABOUT TABLES AND FIGURES THAT
PRESENT THEIR CONCLUSIONS AND RESULTS OF THIS STUDY, WILL BE THE
SUBJECT OF THE HEARING TOMORROW.
3
4
3
pi 1) PERHAPS EVEN BE REACHED BY LATE THIS AFTERNOON.
7 PROFESSOR BALDUS“ ANALYSIS ITSELF, THE CONCLUSIONS OF
8 HIS STUDY ARE COMPLEX. HE’S GATHERED SO MUCH DATA AND BEEN ABLE
7 TO LOOK AT IT IN SO MANY DIFFERENT WAYS. I DO NOT THINK YOUR
10 HONOR WILL BE UNSATISFIED BY THE CONCLUSTVENESS OR OUR FAILURE
11 TO REACH THE POINT WHEN YOU HEAR THE TESTIMONY LATER TODAY OR
12 TOMORROW.
13 THE COURT: I“VE BEEN TRYING TO THINK OF THE APT
14 ANALOGY WHETHER IT’S "WAITING FOR GODOT" OR WHETHER YOU AND MR.
13 FORD HAVE BEEN JOHN THE BAPTIST. BUT IN ANY EVENT, THE REPORT
1&6 IS MUCH HERALDED, AND AS YET UNSEEN.
17 MR. BOGER: LET ME JUST ADD, YOUR HONOR. AS I MENTIONED
18 YESTERDAY. OF COURSE, THE REASON WE’VE TAKEN THIS APPROACH, IN
® 1? OUR REVIEW OF THE CASES AND LITERATURE IN WHICH THIS KIND OF
20 EVIDENCE HAS BEEN PREVIOUSLY PRESENTED, THERES OFTEN BEEN A
23 BARRAGE OF CRITICISM LAUNCHED BECAUSE OF LACK OF FOUNDATION
22 LAID. THE STATE HAS RAISED SOME CHALLENGES TO THE FOUNDATION OF
23 THE CONCLUSIONS OF PROFESSOR BALDUS IN ITS OBJECTIONS, THE
24 ANSWERS TO INTERROGATORIES, WHICH YOU INDICATE YOU HAVE NOT
23 SCENE AND THAT HAS LED TO THE JUDGMENT THAT IT“S BETTER TO BED
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SAFE THAN SORRY. AND I HOPE THAT JUDGMENT IS NOT BALANCED THE
OTHER WAY.
1 DO SUSPECT WHILE THE DELAY MAY HAVE BEEN PROLONGED.
THAT AT LEAST 1 HOPE IT WILL BE WORTHWHILE AND YOU WONT DECIDE
YOU“VE LISTENED TO A LOT OF FOUNDATION FOR EVIDENCE THAT IS
PLAINLY ON ITS FACE INSUBSTANTIAL. THE STATE IS GOING TO ATTACK
IT, I TRUST. BY WE WILL PROCEED RAPIDLY.
THE COURT: WELL, I THINK IT’S IMPORTANT AS I TOLD MR.
FORD YESTERDAY, FOR YOU TO MAKE ME BELIEVE THAT A WITNESS. AN
EXPERT WITNESS HAS GOT REASONS FOR STATING HIS OPINION. BUT
THERES FINE LINE BETWEEN DOING THAT. AND IT SEEMS CLEAR JUST
FROM THE DESIGNED STUDY THAT PROFESSOR BALDUS HAS ATTEMPTED IN
AN ACADEMICALLY HONEST WAY TO HAVE A BETTER FOUNDATION FOR HIS
OPINIONS THAN THE PREVIOUS EXPERTS THAT I HAD, AND I UNDERSTAND
THAT THATS AT PLAY.
BUT BEYOND THAT. YOU KNOW. AS TO WHETHER THE STRENGTH
OF THE EVIDENCE FACTORS IN, THERE‘S SOME OF THESE THINGS THAT
YOU HAVE GATHERED. OR THE WAY IN WHICH YOU HAVE GATHERED THE
DATA THAT WOULD MAKE ME THINK THAT ANY FACTORING IN THAT YOU DID
WOULD NOT BE WORTH A DAMN, TO OBJECT POINTED ABOUT IT, WHEREAS
SOME OF THE THINGS THAT YOU DID THERE I THINK ARE VERY CREATIVE
AND DEPENDING ON WHICH DATA YOU USE, MIGHT BE HELPFUL.
BUT AGAIN, UNTIL I SEE THE REPORT I CAN‘T TELL. AND
THIS ALL ADDRESSES TO WHETHER THIS MAN COMES BACK OR NOT.
I WOULD SUPPOSE UNTIL IVE HEARD THE WHOLE THING MAYBE
380
GATES - REDIRECT
1 I COULD LET HIM GO. BUT YOU ALL GIVE ME SOME SORT OF AN IDEA OF
2 WHEN YOU“LL BE THROUGH AND WELL DISCUSS IT.
3 WE‘LL BE IN RECESS FOR ABOUT TEN MINUTES.
4 a -ii
5 (RECESS TAKEN.) :
o ---
7 EDWARD RAYMOND GATES,
§ | BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
9 TESTIFIED FURTHER AS FOLLOWS:
10 REDIRECT EXAMINATION (CONT?D)
11 |BY MR. FORD:
12 |@. MR. GATES. I BELIEVE IN THE CROSS-EXAMINATION MS.
12 | WESTMORELAND ASKED YOU A NUMBER OF GUESTIONS IN REGARD TO THE
14 | DEFINITION OF TERMS USED IN THE FIRST STUDY, THE PROCEDURAL
1s | REFORM STUDY QUESTIONS. ABOUT STRANGER. OR BLOODY, THOSE KIND OF
16 | DEFINITIONS.
17 HOW LONG AGO WAS IT YOU DID THAT STUDY FROM RIGHT NOW,
18 | DID THE WORK ON THAT STUDY?
48 19 |A. JUST ABOUT 3 YEARS AGO.
20 |@. AND WHEN WAS IT YOU DID THE SECOND STUDY?
21 |A. TWO YEARS AGO.
22 @. IN THE FIRST STUDY. WERE THERE THE KIND OF WRITTEN PRECISE
<3 DEFINITIONS OF THESE KINDS OF TERMS WE‘VE TALKED ABOUT IN THE
24 SECOND STUDY?
23 A. IN THE FIRST STUDY, THE DEFINITIONS WEREN'T ELABORATED 350
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GATES - REDIRECT
ARTICULATELY.
@. IS THERE ANY DOUBT IN YOUR MIND AS TO THE EXTENT TO WHICH
THE DEFINITIONS LATER ATTACHED IN THE SECOND STUDY WERE ALSO
EXACTLY THE SAME AS WHAT YOU FOLLOWED IN THE FIRST STUDY?
A. YES, THERE IS.
@. WHAT YOU-VE TESTIFIED IS THE BEST OF YOUR RECOLLECTION BASED
ON THE DOCUMENTS YOU DO HAVE. IS THAT RIGHT?
A. THAT’S CORRECT.
@. NOW, IN DOING THE SECOND STUDY, YOU WERE TALKING AT ONE
POINT ABOUT HAVING REVIEWED A HUNDRED FILES, AND THE FIRST
HUNDRED FILES. AS THE CODERS GOT UP TO A POINT OF CONSISTENCY, I
THINK YOU SAID SOMETHING ABOUT TWENTY FILES YOU DIDN‘T GET TO.
WHAT THAT, I DON’T KNOW IF YOU FINISHED THAT. WAS THAT
AT A POINT OR DID YOU NEVER CET TO THOSE?
A. WHAT I MEANT TO SAY, I SET THEM ASIDE SO I COULD KEEP UP
WITH THE QUESTIONNAIRES THAT THE CODERS WERE CODING ON A DAILY
BASIS. BUT I EVENTUALLY GOT BACK AND CHECKED EACH ONE OF THUSE
QUESTIONNAIRES AGAINST THE FILES THEMSELVES.
@. AND ALSO WITH REGARD TD THE CHARGING AND SENTENCING STUDY.
THAT”S STUDY NUMBER 2, YOU INDICATED THAT SOMETIMES
CO-PERPETRATOR’S FILES MIGHT BE CODED BY TWO DIFFERENT PEOFLE.
WAS THAT. DID THEY DO THAT TOGETHER OR SEFPARATELY?Y
A. THEY DID IT TOGETHER. WHEN, OCCASIONALLY. THEY WOULD DIVIDE
THE RESPONIBILITIES OF CODING A FILE, BUT WHEN CO-FERFETRATOR
FILES WERE DONE THEY WERE DONE AT THE SAME TIME.
EEE
382
GATES -— RECROSS
et
@. THE JUDGE ASKED YOU A QUESTION, I THINK, IN RELATION TO ONE
2 OF THESE FINE POINTS ON THE STRENGTH OF THE EVIDENCE WITH REGARD
3 TO THE DEFENDANT AND THE FERPETRATOR. AND THE PHYSICAL EVIDENCE.
4 AND ON THOSE THINGS 1 THINK AT THE END WITH REGARD TO
3 WHETHER IT WAS MISLEADING AS TO THE STRENGTH OF THE EVIDENCE
. & AGAINST THE DEFENDANT TO CODE SOMETHING WITH REGARD TO THE
7 CO-PERPETRATOR.
2 WAS YOUR JOB TO DETERMINE TO WHAT EXTENT OR WHAT THE
? SIGNIFICANCE OF THESE ITEMS THAT YOU WERE CODING IN WAS TO THE
10 ULTIMATE ISSUE IN THIS STUDY?
11 A. NO, IT WAS NOT.
12 Q. WHOSE JOB WAS THAT?
13 A. THAT WAS PROFESSOR BALDUS” JOB.
14 MR. FORD: THOSE ARE ALL THE QUESTIONS I HAVE AT THIS
13 TIME, YOUR HONOR.
16 THE COURT: ALL RIGHT. ANY RECROSS?
17 MS. WESTMORELAND: JUST ONE QUESTION. YOUR HONOR.
13 RECROSS~-EXAMINAT ION
» 19 |BY MS. WESTMORELAND:
20 @. THIS IS JUST FOR CLARIFICATION OF WHAT YOU JUST SAID. MR.
21 GATES.
22 YOU INDICATED WHEN THE CO-PERPETRATOR FILES WERE THEY
23 DONE AT THE SAME TIME. WAS THAT IN BOTH STUDIES OR WERE
24 YOU REFERRING TO THE CHARGING AND SENTENCING STUDY WITH THAT
23 STATEMENT?
0
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GATES - RECROSS
A. 1 WAS REFERRING TO THE CHARGING AND SENTENCING STUDY.
QR. WAS THAT THE CASE WITH THE PROCEDURAL REFORM STUDY?
A. I DON’T RECALL.
RA. THANK YOU.
MS. WESTMORELAND: THANK YOU. THATS ALL. ;
MR. FORD: YOUR HONOR, OVER THE RECESS, IVE SPOKEN
WITH MR. GATES. HE’S INDICATED TO ME HE HAS BOTH PERSONAL AND
LEGAL,» WELL, EMPLOYMENT BUSINESS IN BOSTON. THAT HE WOULD VERY
MUCH LIKE TO RETURN TO.
HE“S ALSO INDICATED HE BELIEVES HE CAN RETURN TO THIS
COURT ON ONE-HALF DAY’S NOTICE. AND CERTAINLY CONSIDERS AND
UNDERSTANDS HIS OBLIGATIONS AS SO REMAINING IN THE JURISDICTION
OF THIS COURT. EVEN THOUGH HE LEAVES GEORGIA.
ALSO MS. WESTMORELAND HAS INDICATED SHE HAS NO OBJECTION
TO HIM RETURNING TO BOSTON UNDER THOSE CIRCUMSTANCES.
MS. WESTMORELAND: I DON‘T HAVE ANY PARTICULAR PROBLEM
ABOUT THAT. YOUR HONOR, AS LONG AS IT’S CLEAR HE WILL BE
AVAILABLE, WITH THOSE CONSIDERATIONS, WITHIN THE DISCRETION OF
THE COURT, OBVIOUSLY.
THE COURT: ALL RIGHT. LET ME ADD AN ADDITIONAL RUALM,
AND THAT IS. THAT YOU TREAT HIM AS THOUGH HE WERE A WITNESS THAT
YOU WERE GOING TO CALL FOR REBUTTAL, WHICH WOULD MEAN THAT YOU
KEEP HIM ADVISED OF THE STAGE AND THAT HE HAVE TRANSPORTATION
BOOKED BASED ON ESTIMATES OF WHEN HE MAY BE NEEDED. I DON'T
MEAN TO SAY HE“S GOT TO TRAVEL, BUT WHAT I“M TRYING TO SAY IS HE
reegmeee ee. —. gy See ee. A —-. Wt —————" ——— et Sot— S————
BALDUS - DIRECT
1 SHOULD BE MAKING ARRANGEMENTS, INCLUDING BOOKING TRANSPORTATION
2 AND KEEPING HIS CALENDAR CLEAN AND NOT GETTING INVOLVED IN QTHER
3 THINGS, PERSONAL, PROFESSIONAL WHAT HAVE YOU, SO THERE WILL BE
3 NO REASON WHY HE CANNOT COME BACK, IF HE IS ASKED TO COME BACK.
. DO YOU UNDERSTAND WHAT I“M SAYING?
b MR. FORD: I DO, YOUR HONCR.
7 THE WITNESS: YES. YOUR HONOR.
8 MR. FORD: ANY PROBLEM WITH THAT, MR. GATES?
9 THE WITNESS: NO PROBLEM.
10 THE COURT: YOU WILL MAKE YOUR PLANS, TRAVEL AND
11 OTHERWISE, S0 AS TO BE POTENTIALLY AVAILABLE QUICKLY AT THE TIME
12 ITS INDICATED TO YOU WITH CONVERSATIONS WITH MR. FORD AND MR.
13 BOGER.
14 THE WITNESS: THANK YOU,
15 THE COURT: ALL RIGHT. YOU‘RE EXCUSED FOR NOW. |
16 | (WITNESS EXCUSED)
17 THE COURT: ALL RIGHT. MR. BOGER. CALL YOUR NEXT
13 WITNESS.
RL 1? MR. BOGER: WE RECALL PROFESSOR BALDUS, YOUR HONOR. |
20 THE CLERK: SIR, YOU‘RE STILL UNDER OATH. IF YOU'LL |
21 JUST HAVE A SEAT.
22 THE WITNESS: VERY WELL.
23 -
24 DAVID C. BALDUS,
23 BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
S85
BALDUS - DIRECT
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT D)
BY MR. BOGER:
@. PROFESSOR BALDUS, WHEN YOU LAST SPOKE WITH THE COURT, WE HAD
SPOKEN ABOUT YOUR TRAVEL TO GEORGIA, YOUR HIRING OF CODERS, YOUR
TRAINING OF THOSE CODERS, AND YOUR CONTACT WITH ED GATES AND
OTHERS WHO WERE WORKING IN THE STATE OF GEORGIA TO COMPLETE THE
RUESTIONNAIRES.
BY THE END OF THE SUMMER OF 1931. WHAT DID YOU HAVE
AVAILABLE TO YOU FOR DATA ANALYSIS BACK IN IOWA?
A. I HAD A BOX OF QUESTIONNAIRES. IN FACT, I HAD SIX BOXES,
LARGE BOXES, FILLED WITH QUESTIONNAIRES THAT HAD BEEN
TRANSMITTED BY ED GATES FROM GEORGIA.
'®. LET ME DIRECT YOUR ATTENTION TO WHAT IS BEING MARKED BY THE
COURT REPORTER AS DB-44.
CAN YOU IDENTIFY THAT BOX?
A. YES. THAT’S A BOX OF QUESTIONNAIRES. THEY WERE. THEY WERE
NOT SHIPPED FROM GEORGIA IN THAT BOX, BUT LATER STORED IN SUCH A
VESSEL.
@. WERE OTHER SIMILAR BOXES LIKE THAT IN YOUR POSSESSION AFTER
THE SUMMER OF “817
A. YES.
THE COURT: THATS BEEN MARKED AS S35 FOR THE RECORD?
THE CLERK: DID YOU SAY 3357
MR. BOGER: I MAY HAVE SAID A 55 TO THE CDURT REFDRTER.
————. — So —— rec— A———. po ——(——— I———— —— p—p——— — ———————————1 N— ——— —— — ——— Yo——————— —————
BALDUS - DIRECT
1 I NEED TO MARK IT AS DB-44.
< BY MR. BOGER:
3 @. AND HAVE YOU KEPT THOSE QUESTIONNAIRES IN YOUR CUSTODY SINCE
4 THAT TIME?
3 A. YES.
& 2. AND WERE THEY MADE AVAILABLE TO THE STATE?
7 A. YES.
3 @. ALL RIGHT. WERE YOU ABLE TO IMMEDIATELY PROCEED WITH THE
? ANALYSIS OF THOSE QUESTIONNAIRES?
10 A. NO.
11 @. WERE IN FACT THOSE QUESTIONNAIRES COMPLETE IN EVERY RESPECT?
12 A. NO. THEY WERE NOT.
13 @. IN WHAT PARTICULARS WERE THEY NOT COMPLETE. DO YOU RECALL?
14 A. YES, IN THREE MAIN PARTICULARS.
13 APPROXIMATELY THIRTY TO FORTY PERCENT OF THE
14 QUESTIONNAIRES WERE LACKING INFORMATION ON THE RACE OF THE
17 VICTIM.
18 A SIGNIFICANT NUMBER OF THE CASES INVOLVING MURDER
» 19 TRIALS WHERE MISSING INFORMATION.
20 MR. BOGER: FORGIVE ME, YOUR HONOR.
21 THE WITNESS: WITH RESPECT TO WHETHER THE CASE HAD
22 ADVANCED TO A PENALTY TRIAL. AND ALL OF THE QUESTIONNAIRES WITH
23 THE EXCEFTION OF A HANDFUL. LACKED INFORMATION AS TO WHETHER ANY
24 PLEA BARGAIN OFFERS HAD BEEN TENDERED OR ACCEPTED BY THE
23 PROSECUTOR IN THE CASE.
BALDUS - DIRECT
BY MR. BOGER:
@. DID YOU TAKE STEPS TO OBTAIN THIS INFORMATION?
A. YES.
@. CAN YOU DESCRIBE THOSE STEPS TO US, BRIEFLY?
A. YES. THE PROCEDURES THAT WE FOLLOWED IN THIS CASE WERE
COMPARABLE TO THOSE THAT WERE FOLLOWED IN THE PROCEDURAL REFORM
STUDY.
WHEN THE QUESTIONNAIRES WERE CODED IN THE PAROLE BOARD,
THE CODERS INDICATED ON A WORK SHEET THAT WAS ATTACHED TO THE
AUESTIONNAIRE THE NAME OF DEFENSE COUNSEL AND COUNSELS ADDRESS
IF IT WERE AVAILABLE, AS WELL AS THE NAME OF THE DISTRICT
ATTORNEY. AND THE INDIVIDUAL WHO ACTUALLY PROSECUTED THE CASE.
AND AS WAS DONE IN THE EARLIER STUDY, WE SENT
RJESTIONNAIRES TO. FIRST DEFENSE COUNSEL IF WE KNEW THEIR NAME,
AND IN THE ABSENCE THEREOF, WE SENT QUESTIONNAIRES TO THE
PROSECUTOR. QUESTIONNAIRES THAT WE SENT WERE TAILORED
SPECIFICALLY TO THE INFORMATION THAT WAS MISSING WITH RESPECT TO
EACH RUESTIONNAIRE.
I PERSONALLY WENT THROUGH EACH OF THE ONE THOUSAND
SIXTY-0DD QUESTIONNAIRES THAT WE HAD, IDENTIFIED THE INFORMATION
THAT WAS MISSING, SPECIFIED THE SCHEDULE OF INFORMATION THAT WE
WERE TO SEND TO OBTAIN ANSWERS FROM DEFENSE COUNSEL OR THE
PROSECUTOR.
THOSE WERE SENT ALONG WITH RETURN ENVELOPES. AND WE
THEN RECEIVED A STEADY STREAM OF MAIL WITH THOSE RETURN
1&6
588
BALDUS - DIRECT
RUESTIONNAIRES.
THIS PROCESS CONTINUED FOR FOUR OR FIVE MONTHS.
@. LET ME ASK YOU, PROFESSOR BALDUS, TO TURN TO WHATS BEEN
MARKED AS DB-45 FOR IDENTIFICATION. CAN YOU IDENTIFY THE
DOCUMENTS THAT ARE MARKED UNDER THE INDICIA DB-437
A. YES. THE FIRST PAGE OF DB~45 IS A WORK SHEET OF THE TYPE
THAT WAS ATTACHED TO EACH QUESTIONNAIRE.
IT IS ILLUSTRATED. PARDON ME. IT IS INCLUDED HERE FOR
PURPOSES OF ILLUSTRATION. THIS IS ONE THAT RESULTED IN A WORK
SHEET WHICH IS THE NEXT PAGE FOLLOWING, THAT I COMPLETED.
AND THEN THAT RESULTED IN THE SENDING OF A
QUESTIONNAIRE TO COUNSEL IN THAT CASE, AND A COPY OF THE RESUME
THAT WAS RETURNED IS ATTACHED ON THE NEXT PAGE.
THE FOLLOWING PAGES INDICATE THE FORMAT OF THE
ALTERNATIVE SCHEDULES THAT WERE SENT. WHEN THE MISSING
INFORMATION WAS OF A SLIGHTLY DIFFERENT ORDER.
I MIGHT ADD ~--
THE COURT: I AM WAY BEHIND YOU.
THE WITNESS: OH, SORRY, YOUR HONOR.
THE COURT: THE FIRST PAGE OF DB-45 IS WHAT?
THE WITNESS: THATS THE WORK SHEET THAT WAS ATTACHED
TO THE QUESTIONNAIRE, ONE DAVID JOE ADAMS.
THE COURT: AND WAS THAT SENT QUT?
THE WITNESS: NO. THAT WAS NOT SENT OUT. YOUR HONOR,
THAT CAME BACK WITH THE QUESTIONNAIRE FROM GEORGIA.
BALDUS - DIRECT
1 THE COURT: WHAT WAS SENT DUT?
MN
THE WITNESS: THEN WHAT WAS SENT OUT WAS THE
3 QUESTIONNAIRE WHICH BEGINS ON THE THIRD PAGE, DB-43, YOUR HONOR.
4 CALLED SCHEDULE 2. THAT WAS SENT ALONG WITH A LETTER EXPLAINING
THE PURPOSES OF THE STUDY AND IT WAS RETURNED WITH A CODING THAT cn
4 YOU SEE THERE ON THAT INSTRUMENT.
7 BY MR. BOGER:
8 @. WHO ENTERED THOSE XS ON SCHEDULE 27
? A. THE ATTORNEY. WHO IN THIS CASE WAS PAUL JONES, JUNIOR.
10 AND THEN. YOUR HONOR, FOLLOWING THAT. YOU SEE SCHEDULE |
11 3, WHICH IS BLANK. |
32 SCHEDULE 1 WHICH IS BLANK. |
13 THOSE ARE JUST SIMPLY ALTERNATIVE FORMS OF THE
14 QUESTIONNAIRE THAT WE SENT.
15 WE WANTED TO SEND THE QUESTIONNAIRES FOR ONLY THE
16 INFORMATION THAT WAS MISSING. AND NO MORE.
17 AND I MIGHT NOTE, IN PASSING, THAT THERE IS ONE OTHER BIT
13 OF INFORMATION THAT WAS FREQUENTLY. THAT WE CONSIDERED IMPORTANT |
19 AND THAT WAS THE STATUS OF DEFENSE COUNSEL. WHETHER RETAINED OR |
20 APPOINTED.
21 BY MR. BOGER:
22 @. PROFESSOR BALDUS, DID YOU FOLLOW THIS FORM OF OBTAINING
23 ADDITIONAL INFORMATION FOR ALL THE QUESTIONNAIRES WHICH LACKED A
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BALDUS ~ DIRECT
MR. BOGER: YOUR HONOR, AT THIS TIME, I MOVE DB—-435 INTO
EVIDENCE AS EVIDENCE OF HOW ADDITIONAL INFORMATION WAS OBTAINED
FOR THE CHARGING AND SENTENCING STUDY.
MS. WESTMORELAND: NO OBJECTION. IF THIS IS SUBMITTED
AS AN EXAMPLE OF THIS KIND OF QUESTIONNAIRE. I HAVE NO OBJECTION
ON THAT BASIS. YOUR HONOR.
THE COURT: IT WILL BE ADMITTED.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
Q. PROFESSOR BALDUS, I-“LL ASK YOU TO RETURN NOW TO THE
DOCUMENTS MARKED FOR IDENTIFICATION AS DB-446. AND DIRECT YOU TO
THEM. AND ASK IF YOU-LL IDENTIFY THEM?
A. YES. DB-44 CONSISTS OF TWO OF THE LETTERS THAT WERE SENT.
THE FIRST TO DEFENSE COUNSEL AND THE SECOND A FOLLOWUP LETTER
THAT WAS SENT TO DEFENSE COUNSEL.
@. WERE THESE ACTUAL LETTERS, THESE COPIES SENT TO DEFENSE
COUNSEL OR ARE THESE MODELS?
A. THESE ARE THE MODELS. THESE ARE THE FORMS THAT WERE USED.
WE SIMPLY TYFED IN THE NAME OF THE ATTORNEY AND SIGNED MY NAME.
AND SENT THEM WITH THE SCHEDULES ATTACHED.
@. DID YOU USE THESE FORMS OR THESE MODELS FOR ALL OF YOUR DATA
COLLECTION?
A. YES.
R. IN THE CHARGING AND SENTENCING STUDY?
A. THAT’S CORRECT.
BALDUS - DIRECT
pb
MR. BOGER: AT THIS TIME. YOUR HONOR, I MOVE FOR THE
> | ADMISSION OF DB-46 IN EVIDENCE AS EXAMPLES OF THE FORMS USED TO
2 | COLLECT DATA FROM DEFENSE COUNSEL AND PROSECUTORS.
4 THE COURT: UNLESS THERE'S OBJECTION, THEY’LL BE
5 | ADMITTED.
Rs 6 MS. WESTMORELAND: THANK YOU. YOUR HONOR.
7 BY MR. BOGER:
@ @. PROFESSOR BALDUS, YOU’VE INDICATED IN YOUR TESTIMONY MONDAY
? AFTERNOON, I BELIEVE, THAT THERE WAS INFORMATION SOMETIMES
10 MISSING ON THE RACE OF THE VICTIM.
11 CAN YOU TELL US HOW THAT INFORMATION WAS OBTAINED ONCE
12 THE QUESTIONNAIRES HAD BEEN RETURNED?
13 A. YES. WE PURCHASED FROM THE BUREAU OF VITAL STATISTICS A
14 HOMICIDE TAPE WHICH INCLUDED THE NAMES OF OVER A THOUSAND
13 PERSONS WHO HAD BEEN VICTIMS OF HOMICIDES IN THE STATE OF
1&6 GEORGIA BETWEEN 1973 AND 197%, AND HAVING OBTAINED THE NAME OF
17 THE VICTIM, GENERALLY FROM THE INDICTMENT, WERE OTHER PAPERS
13 INVOLVED IN THE PAROLE BOARD FILES. WE WOULD THEN SEARCH THOSE
19 RECORDS TO DETERMINE THE RACE OF THE VICTIM. AND OTHER
20 INFORMATION THAT WAS INCLUDED.
21 @. DID YOU MANAGE TO OBTAIN THAT TAPE FROM THE DEPARTMENT OF, |
22 OR BUREAU OF VITAL STATISTICS? |
23 A. YES. THEY REQUESTED THAT WE SUBMIT A SEARCH PROPOSAL, WHICH I
24 DID. A COPY DOF WHICH IS ATTACHED AS THE SECOND PAGE OF DB-47 |
|
23 ADDRESSED TO DOCTOR REBECCA BURGESS.
—— ——— f—————— S———;, S————————. A ———— ———. —— — —— f— S——————— —— —— Cp ———
BALDUS - DIRECT
1 THAT REQUEST WAS APPROVED BY THE RESEARCH COMMITTEE AT
2 THE BUREAU OF VITAL STATISTICS, AND SUBSEQUENTLY--
3 Q. 1S THERE ANYTHING THAT REFLECTS THAT APPROVAL?
4 A. YES.
QR. IN DB-477 4]
A. YES. THE FOURTH PAGE OF DB-47 INCLUDES A FORM NOTICE FROM oc
7 THE DEPARTMENT DATED JUNE 10. 1981.
3 AND THEREAFTER, I COMMENCED CORRESPONDENCE BY PHONE AND
@ WRITTEN COMMUNICATION WITH WILLIAM MCQUADE OF THAT DEPARTMENT.
10 AND HE EVENTUALLY PRODUCED THE TAPE FOR ME LATE IN THE SUMMER OF
11 1971.
12 THE COURT: 19317
13 THE WITNESS: I BEG YOUR PARDON?
14 THE COURT: 19817
13 THE WITNESS: YES, YOUR HONOR, 1981.
16 AND SENT ALONG A CODE BOOK, THE LETTER HERE IS DATED
17 | AUGUST 17. 1981, FROM MR. MCQUADE TO ME, WHICH IS ATTACHED TO
13 |THE TAPE, AND --
| PA 19 |BY MR. BOGER:
20 |@. WHAT WAS THE PURPOSE OF THE CODE BOOK?
21 |A. THE PURPOSE OF THE CODE BOOK WAS TO FIGURE OUT WHERE ON THE
22 |TAPE THE BITS OF INFORMATION THAT WE WERE INTERESTED IN
23 | OBTAINING WERE LOCATED. |
24 THIS IS A STANDARD PROCEDURE IN TRANSMITTING TAPES
23 BETWEEN PEOPLE, TO SPECIFY WHAT THE FIELDS ARE AND HOW THEY
4) 0 0
BALIUS ~ DIRECT
1 RELATE TO THE INFORMATION ONE WANTS TO OBTAIN.
2 @. DID YOU AT SOME POINT EMPLOY ANY OTHER METHOD OF OBTAINING
INFORMATION ABOUT THE RACE OF THE VICTIM FROM THE BUREAU OF
VITAL STATISTICS?
A. YES. THERE WERE A NUMBER OF VICTIMS SPECIFIED IN OUR RECORDS
3
4
S
& WHOSE NAMES WERE NOT ON THIS TAPE, AND TO FIND THOSE. WE
7 FOLLOWED UP WITH FURTHER REQUESTS FOR SEARCHES OF DEATH
8 CERTIFICATES, AND IN SOME CASES WE WERE ABLE TO FIND THE NAME.
? R. CAN YOU TELL ME WHAT THE LAST PAGE IN DB-47 IS?
10 A. YES. THAT“S AN EXAMPLE OF ONE OF THE BIRTH CERTIFICATES.
11 Q. YOU SAID BIRTH CERTIFICATES?
12 A. I’M SORRY. DEATH CERTIFICATES THAT WERE RECEIVED.
13 '@. ALL RIGHT. I THINK THE ONLY PAGE WE HAVENT IDENTIFIED IN
14 DB-47 IS THE FIRST PAGE. CAN YOU TELL US BRIEFLY WHAT THAT IS?
15 A. OH, YES. THE FIRST PAGE WAS THE LETTER THAT I SENT
16 COMMENCING MY SEARCH FOR ACCESS TO THE TAPE ON THE HOMICIDE
17 VICTIMS.
18 @. ARE THE, YOU‘VE INDICATED YOU RECEIVED THE TAPE. AND DEATH
" 19 CERTIFICATES FROM THE BUREAU OF VITAL STATISTICS.
20 DID YOU INCORPORATE THAT INFORMATION INTO THE DATA BASE
21 FOR THE CHARGING AND SENTENCING STUDY?
22 A. YES. FOR EACH CASE WHERE THE INFORMATION ON THE RACE OF
23 VICTIM WAS UNKNOWN. WE PREPARED A CODING UPDATE, AND THAT MEANS
24 THAT WE SPECIFIED THE VARIABLE NUMBER FOR THE RACE OF THE
23 VICTIM, AND THE AGE IF THAT WAS MISSING. AS WELL AS THE
594
BALDUS - DIRECT
1 OCCUPATION IF THAT WAS MISSING AND THAT INFORMATION WAS
2 TAKEN FROM THE PRINTOUT OF THE MATERIAL ON THE TAPE. AND THAT
WAS ENTERED INTO THE FILE BY GEORGE WOODWORTH.
MR. BOGER: YOUR HONOR, AT THIS TIME. 1 MOVE DB-47 INTO
3
4
3 EVIDENCE. AS REFLECTING HOW THE INFORMATION ON VITAL -— VITAL
=) STATISTICS INFORMATION ENTERED THE CHARGING AND SENTENCING
7 STUDY.
3 THE COURT: IS THERE OBJECTION?
? MS. WESTMORELAND: YOUR HONOR, COULD I ASK IF WE
10 IDENTIFIED THE NEXT TO THE LAST PAGE TO THIS EXHIBIT?
11 THE COURT: COMPUTER RUN?
12 BY MR. BOGER:
13 @. PROFESSOR BALDUS, COULD YOU ADDRESS THAT GUESTION?
14 A. CERTAINLY.
135 THE COURT: TALKING ABOUT THE COMPUTER FRINTOUT?
146 MS. WESTMORELAND: YES, YOUR HONOR.
37 THE WITNESS: YES. THAT’S AN EXAMPLE OF THE FRINTOUT OF
18 THE TAPE THAT WE PRODUCED AT THE UNIVERSITY OF IOWA, UPON
Re 19 RECEIPT OF THE TAPE.
20 THIS IS A LISTING. LEFT-HAND COLUMN, LISTS THE NAME OF
21 THE VICTIM. AND THEN THERE’S A CODE FOR THE SEX, RACE. AGE,
22 | COUNTY. STATE AND YEAR.
2a |BY MR. BOGER:
24 |@. WHAT DO THE 1 OR 2 DESIGNATION UNDER RACE MEAN?
23 A. WELL. THAT IS EXPLAINED BY THE CODE. THAT COMES THREE PAGES
S95
BALDUS - DIRECT
EARLIER. IT INDICATES THAT "1" IS WHITE RACE. "2" BLACK, RACE.
MR. BOGER: YOUR HONCR, I RENEW MY MOTION TO ADMITTED
BE 47 INTO EVIDENCE.
MS. WESTMORELAND: YOUR HONOR, WITH THE LIMITATION THAT
THE LAST TWO PAGES ARE EXAMPLES ONLY. I BELIEVE THAT WAS THE
STATEMENT THAT WAS GIVEN, I HAVE NO OBJECTION TO THE DOCUMENT.
THE COURT: FOR THOSE PURPOSES, THEY RE ADMITTED.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
@. PROFESSOR BALDUS, YOU NOW HAVE INFORMATION THAT YOU‘VE SAID
IS IN IOWA IN QUESTIONNAIRE FORM, DEATH CERTIFICATE FORM, SOME
MAGNETIC TAPES. HOW DID YOU BEGIN YOUR ANALYSIS?
COULD YOU BEGIN ANALYSIS ON THE DATA IN THAT FORM?
A. NO. THE DATA HAD TO BE ENTERED ONTO A TAPE. TO BEGIN THE
ANALYSIS.
R. AND WHO ENTERED THAT DATA?
A. THE LABORATORY FOR POLITICAL RESEARCH AT THE UNIVERSE CF
IOWA. THE LABORATORY FOR POLITICAL RESEARCH IS A SECTION OF THE
POLITICAL SCIENCE DEPARTMENT, UNIVERSITY OF IOWA. THEIR
SPECIALTY IS THE CONDUCT OF SURVEY RESEARCH, AND DATA ANALYSIS.
AND THEY PROVIDE RELATED SERVICES, ONE OF WHICH IS THE
ENTRY OF DATA IN LARGE SURVEYS. AND THEY HAVE HAD YEARS OF
EXPERIENCE AND HAVE A NATIONAL REPUTATION FOR HIGH QUALITY WORK
IN THIS AREA. AND I CONSIDERED IT IMPORTANT THAT THIS JOB BE
DONE ACCORDING TO THE HIGHEST STANDARDS. SO I ENGAGED THEM TO
~~
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596
BALDUS - DIRECT
ENTER THE DATA ON THIS JOB.
@. WERE THEY PAID FOR THIS JOB?
A. YES. THEY WERE PAID ABOUT EIGHT OR NINE THOUSAND DOLLARS, I
BELIEVE.
@. CAN YOU TELL ME BRIEFLY WHETHER YOU CONSULTED WITH THEM
PRIOR TO THEIR ENTRY OF YOUR DATA?
A. YES. 1 EXPLAINED TO THEM THE REQUIREMENT FOR ABSOLUTE
HIGHEST STANDARDS OF ACCURACY AND CARE IN THIS TASK, AND THEY
DEVELOPED A PROGRAM TO MEET THE REQUIREMENTS THAT I SPECIFIED.
SPECIFICALLY, THEY, WROTE A COMPUTER PROGRAM WHICH
WOULD FLASH A LIGHT IF AN UNAUTHORIZED CODE WAS ENTERED BY A
KEYPUNCHER.
WHAT 1 MEAN BY AN UNAUTHORIZED CODE IS ONE THAT IS NOT
ONE OF THE SPECIFIED RESPONSES SOMEONE COULD ENTER FOR A
PARTICULAR FOIL SO WE COULD CATCH MISTAKES THAT WERE OUTSIDE THE
RANGE OF THE AUTHORIZED FOIL.
HOWEVER, THAT DID NOT INSURE THAT THERE COULD NOT BE
MISTAKES WITHIN THE CONTEXT OF AN INDIVIDUAL FOIL.
SO TO AVOID RISK OF ERROR IN THAT DEPARTMENT, WE HAD AN
ARRANGEMENT WHERE THEY WOULD ENTER EACH GUESTIONNAIRE INTO THE
MACHINE ON TAPE, THEN THEY WOULD PRODUCE A LISTING OF HOW IT WAS
ENTERED, AND THEN THAT WOULD BE READ BY TWO PEOPLE AGAINST THE
UNDERLYING QUESTIONNAIRE TO INSURE THAT THE INFORMATION IN THE
QUESTIONNAIRE WAS THE SAME AS THE INFORMATION THAT WAS ON THE
TAPE.
S97
BALDUS - DIRECT
Po
h BY MR. BOGER:
kr
0. LET ME ASK YOU TO RETURN TO DB-48 FOR IDENTIFICATION. WILL
3 YOU PLEASE IDENTIFY THAT DOCUMENT. OR THOSE DOCUMENTS, PROFESSOR
4 BALDUS?
3 A. YES. DB-48 INCLUDES THE CORRESPONDENCE THAT I HAD WITH THE
RG & LABORATORY FOR POLITICAL RESEARCH. AND IT INCLUDES MY REQUEST
7 AS WELL AS OUR UNDERSTANDING. AND THEIR STATEMENT OF THE
8 PROCEDURES THAT THEY FOLLOWED.
? @. WELL, LET’S GO THROUGH AND IDENTIFY THE DOCUMENTS
10 SPECIFICALLY, VERY QUICKLY.
11 FIRST DOCUMENT IS WHAT. PROFESSOR BAL DUS?
12 A. THIS IS A LETTER TO ME FROM JOHN KOLF, WHO WAS THE
13 SUPERVISOR IN CHARGE OF THIS JOB AT THE LABORATORY FOR POLITICAL
14 RESEARCH, DATED JUNE 1S AND IT SETS OUT THE NATURE OF OUR
13 UNDERSTANDING, AND STATES THEIR VIEW THAT THIS PROCEDURE WHICH I
146 AGREED WITH DEFINITELY CONFORMS TO ACCEPTED SOCIAL SCIENCE
17 PRACTICES IN TERMS OF THE ACCURACY OF THE ENTRY PROCESS.
138 AND THE NEXT LETTER SPECIFIES THE PERSONNEL WHO WERE
s 1? ACTUALLY INVOLVED IN THE ENTRY OF THE DATA FOR THE LABORATORY.
20 AND THE NEXT LETTER STATES --
21 @R. IS THAT THE LETTER OF OCTOBER 1%, 19317
22 A. YES. OCTOBER 19, AGAIN DESCRIBES THE, THE PROCEDURES THAT 23 WERE USED BY THE LABORATORY IN ENTERING THE DATA, AND EXPRESSES
24 THEIR OPINION, AS A RESULT OF THE PROCEDURES THAT THEY FOLLOWED.
23 THEY HAD HIGH CONFIDENCE THAT THE ERROR RATE AS RESULT OF DATA
BALDUS - DIRECT
ENTRY PROCESS WAS ESTIMATED BY THEM TO BE LES3 THAN ONE-SIXTH OF
ONE PERCENT, A JUDGMENT IN WHICH I CONCURREL.
@. AND SO YOUR DATA WAS ACTUALLY PUT ON COMPUTER TAPES BY THESE
PEOPLE AT YOUR DIRECTION. AND IN ACCORDANCE WITH THE PLAN THAT
YOU HAD WORKED OUT, IS THAT CORRECT?
A. THAT”’S CORRECT. :
MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-48
INTO EVIDENCE, AS REFLECTING HOW THE DATA WAS TRANSFORMED FROM A
WRITTEN FORM TO A TAPE FORM, IN WHICH PROFESSOR BALDUS TESTIFIES
IT WAS ANALYZED.
MS. WESTMORELAND: YOUR HONOR, MY CONCERN WITH THIS
PARTICULAR EXHIBIT DB-48 IS NOT A QUESTION OF WHETHER IT
REFLECTS THAT IT WAS PUT ON COMPUTER TYPE OR NOT. BUT THE THIRD
LETTER SEEMS TO ADDRESS THE QUESTIONS OF ERRORS AND VALIDITY
THEREOF, AND AS SUCH I THINK THAT PARTICULAR LETTER WOULD BE
HEARSAY. WE’VE ALLOWED OTHER LETTERS IN TO REFLECT HOW THE DATA
WAS OBTAINED, BUT I THINK IN THIS CASE THIS LETTER IS HEARSAY
AND IF IT’S BEING SUBMITTED FOR THE PROOF OF WHAT IS CONTAINED
THEREIN, I-LL OBJECT TO IT.
MR. BOGER: YOUR HONOR, MAY I ADDRESS A FEW QUESTIONS
TO PROFESSOR BALDUS ON THIS SCORE?
BY MR. BOGER:
@. PROFESSOR BALDUS, DO YOU HAVE A PROFESSIONAL OPINION ABOUT
THE VALIDITY OF THIS ESTIMATE OF THESE PEOPLE ON WHOM YOU
RELIED?
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BALDUS - DIRECT
A. YES. 1 DO.
@. AND WHAT IS THAT OPINION?
A. MY OPINION ON THE BASIS OF CONSULTING WITH PEOPLE WHO HAVE
WORKED IN THIS FIELD IS THAT THIS IS A, AN EXTREMELY TRUSTWORTHY
PROCESS FOR ENTERING THE DATA AND THAT THIS IS THE, A VALID
ESTIMATE OF THE ERROR RATE THAT IS PROBABLY INHERENT IN THIS
ENTRY PROCESS.
MR. BOGER: YOUR HONOR, I THINK AN EXPERT I3 ENTITLED
TO RELY ON HEARSAY ABOUT MATTERS OF THIS SORT AND THEREFORE MOVE
ITS ADMISSION. |
THE COURT: HE MAY RELY ON IT, BUT THAT DOESN’T MAKE IT
ADMISSIBLE, MR. BOGER.
ILL SUSTAIN THE OBJECTION.
MR. BOGER: YOUR HONOR, IT MAY NOT -—-
THE COURT: HIS OPINION IS IN EVIDENCE. THE LETTERS ARE
NOT.
LETS MOVE ALONG.
BY MR. BOGER:
@. ALL RIGHT, PROFESSOR BALDUS, I“LL ASK YOU TO LOOK AT
SOMETHING I‘M GOING TO HAVE THE THE COURT REPORTER MARK AS DB-47?
IDENTIFICATION.
A. DB-49, YOUR HONOR, IS A COPY OF THE TAPE WHICH INCLUDES THE
FILE OF THE CHARGING AND SENTENCING STUDY, AS WELL AS THE
FROCEDURAL REFORM STUDY.
@R. IS THAT THE FORM IN WHICH THE TAPE WAS TRANSFORMED BY THE
400
BALDUS - DIRECT
1 POLITICAL SCIENCE LABORATORY FROM YOUR QUESTIONNAIRES?
A. YES.
THE COURT: THAT'S THE RAW DATA BASE FOR BOTH STUDIES?
THE WITNESS: YES, YOUR HONOR, THIS IS THE RAW DATA
BASE. HOWEVER, THIS IS A MORE RECENT VERSION OF IT. IT
REFLECTS CHANGES AND CORRECTIONS IN IT. THIS DOES NOT INCLUDE
THE ORIGINAL TAPE THAT WAS PRODUCED BY THEM AT THAT TIME. THIS
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IS AN UPDATED VERSION OF THAT TAPE, THE ONE THAT’S BEEN USED FOR
? THE PURPOSES OF THE ANALYSES WELL BE PRESENTING HERE FOR THE
10 NEXT FEW DAYS.
11 BY MR. BOGER:
12 QR. HAS THE STATE OF GEORGIA BEEN GIVEN ACCESS TO A TAPE OF THIS
13 SORT?
14 A. YES. THEY HAVE AN IDENTICAL COPY OF THIS TAPE.
15 @. NOW, PROFESSOR BALDUS, ONCE YOU HAD THE DATA ON TAPE. WERE
16 ANY CHANGES MADE AT ANY POINT TO THE DATA BASE?
7 A. YES, THERE WERE CHANGES MADE.
13 Q. WHAT WERE THE REASONS THAT YOU MADE CHANGES?
fi 19 A. TO. LET ME SAY THAT FIRST OF ALL, CHANGES WERE MADE AT THE
20 LABORATORY OF POLITICAL SCIENCE IN THE PROCESS OF THEIR CLEANING
21 OPERATION I JUST DESCRIBED TO YOU, AND --
22 @. FOR WHAT REASON WOULD CHANGES OF THAT SORT BE MADE?
23 A. IT’S A PROCESS OF THEIR VERIFICATION PROCEDURE, THEY WOULD
24 MAKE CHANGES IN THE TAPE WHEN THEY WOULD SPOT MISTAKES IN THE
25 TAPES OF THE TYFE 1 DESCRIBED TO YOU A MOMENT AGO.
&01
BALDUS - DIRECT
MS. WESTMORELAND: I WOULD OBJECT TO THE STATEMENT OF
THE WITNESS UNLESS HE CAN TELL US HOW HE FROM HIS OWN PERSONAL
KNOWLEDGE KNOWS THAT THESE CHANGES WERE MADE.
MR. BOGER: THAT’S WHERE I‘M LEADING, YOUR HONOR.
BY MR. BOGER:
@. PROFESSOR BALDUS. LET ME DIRECT YOUR ATTENTION TO DB-350 AND
ASK YOU TO IDENTIFY THAT DOCUMENT.
A. YES. THIS IS A MEMO FROM GEORGE WOODWORTH TO ME WHICH
EXPLAINS THE -- CORRECTION. IT DOES NOT EXPLAIN, IT ILLUSTRATES
THE PROCESS THAT WAS USED AT THE POLITICAL SCIENCE LABORATORY TO
CORRECT AND VERIFY THE ENTRY OF THE DATA. AND IT’S INCLUDED
HERE SIMPLY FOR PURPOSES OF ILLUSTRATION TO SHOW THE WORK SHEET
THAT WAS PRODUCED FOR EACH CASE BY THE LABORATORY, AND ITS
VERIFICATION PARTICULARS PROCESS.
@. WILL YOU IDENTIFY IT FOR US, THE WORK SHEET YOQU’VE JUST
MENTIONED?
A. YES. IT IS THE FOURTH AND FIFTH PAGE OF DB-30.
@. 1S THAT THE EIGHT AND A HALF BY THIRTEEN PAGE THAT FOLDS OUT
TO THE RIGHT SIDE OF THE EVIDENCE BOOK?
A... YES, IT IS.
A. WHAT’ S REFLECTED ON THAT EVIDENCE SHEET OR VERIFICATION
SHEET?
A. WELL, WHAT’S REFLECTED ON IT IS THE NAME OF EACH VARIABLE.
IT ALSO GIVES THE CASE, THE ENTRY THAT WAS THAT WAS MADE ON THE
TAFE. THIS IS A PRINTOUT OF THE TAPE. THE CHECKMARKS NEXT TO
602
BALDUS - DIRECT
PY
EACH VARIABLE ENTRY INDICATE THAT THAT ENTRY WAS CORRECT.
A CIRCLE INDICATES THAT AN INCORRECT ENTRY WAS MADE.
@. WHAT WAS BEING COMPARED, THE PRINTOUT WAS BEING COMPARED
WITH WHAT, WHAT WAS THE METHOD FOR COMPARISON?
A. THE QUESTIONNAIRE WAS BEING COMPARED WITH THE TAPE. AND
THIS IS A REPRODUCTION OF WHAT IS ON TAPE.
@. THE METHOD INVOLVED SOMEONE WHO HAD THIS. THIS PRINTOUT AND
ALSO HAD A PHYSICAL COPY OF YOUR QUESTIONNAIRE, IS THAT CORRECT.
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A. THAT”S CORRECT. AND YOU CAN SEE HERE ON THIS ONE VARIABLE.
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VS7 IN THE LAST COLUMN, OF THE SECOND PAGE OF THE WORK SHEET
12 THAT THERE WAS A "1" THAT SHOULD HAVE BEENG CODED AND IT WAS
13 MISSED, AND THATS WHY THAT "i" IS CIRCLED, AND THAT CORRECTION
14 WOULD HAVE BEEN MADE ON THE TAFE.
13 THE COURT: THAT DOESN’T APPEAR ON MINE.
16 BY MR. BOGER:
17 QR. YOU“RE REFERRING TO TO PAGE 4 OF THE PRINTOUT?
1a A. YES. IT’S CALLED PAGE 4 AT THE TOP OF THE PRINTOUT. YOUR
® 1? HONOR. IT’S OF THE TWO PAGES YOUR HONOR, THE FIRST ONE HAS A --
20 THAT’S RIGHT. IT“S THE SECOND OF THOSE TWO, YOUR HONOR.
21 THE COURT: I SEE IT.
22 THE WITNESS: AS YOU SEE ON THE SECOND ONE, DOWN ABOUT 23 THE MIDDLE OF THE LAST COLUMN ON THE RIGHT, YQU SEE V3 287 THERE
24 AND THERE-“S A "1" CIRCLED. THAT MEANS THAT WAS MISSED. THOSE
23 ARE ENTRIES THAT WOULD BE MADE.
603
BALDUS - DIRECT
Ty
BY MR. BOGER:
8 @. LET ME. LET ME REFER BACK TO THE SHEETS BEFORE THIS
PRINTOUT. IF YOU WOULD, SO WE CAN FURTHER EXPLAIN WHAT WAS DONE
THERE.
CAN YOU EXPLAIN WHAT THESE TWO EARLIER SHEETS ARE?
A. YES. THE FIRST TWO SHEETS CONSIST OF THE FIRST PAGE OF THE
QUESTIONNAIRE TO WHICH THE WORK SHEET THAT I JUST REFERRED TO
RELATES.
THE NEXT PAGE IS THE PAGE OF THE QUESTIONNAIRE WHERE
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THE ERROR THAT I REFERRED TO IS FOUND. THAT WAS INCLUDED FOR
11 THE PURPOSES OF ILLUSTRATING.
2 0. WHAT WAS THE ERROR THAT-S REFLECTED IN THIS VERIFICATION
13 SHEET?
14 A. DOWN AT THE BOTTOM OF THE PAGE THERE, YOU CAN SEE —-
15 0. YOU‘RE TALKING ABOUT THE PAGE OF THE QUESTIONNAIRE THAT HAS
16 "MITIGATING CIRCUMSTANCES" AT THE TOP?
17 A. YES. ON THAT PAGE YOU CAN SEE 292 WAS CODED "1" BY THE
18 CODER, BUT THE VERIFICATION SHEET SHOWS THAT THAT WAS OMITTED BY pl 19 THE DATA ENTRY PERSON WHEN THE DATA WERE PUT IN THE MACHINE. AND
20 THE VERIFICATION PROCESS CAUGHT THAT ERROR.
21 Q. LET ME JUST CORRECT YOUR TESTIMONY ON ONE FOINT IF I MIGHT.
22 YOU EARLIER SAID YOU THOUGHT READING ACROSS THAT THE |
23 ERROR HAD BEEN MADE IN V237.
24 A. OH. I ACCEPT THAT EMENDATION, AND IT WAS IN FACT VARIABLE
23 292 THAT THE ERROR WAS MADE.
604
BALDUS - DIRECT
MR. BOGER: YOUR HONOR, I RENEW MY MOTION TO OFFER IN
EVIDENCE DB-S0 AS EVIDENCE OF HOW VERIFICATION PROCEDURES WERE
CONDUCTED BY THE POLITICAL SCIENCE LABORATORY.
MS. WESTMORELAND: YOUR HONOR, I‘LL ALSO RENEW MY
OBJECTION. I STILL DONT THINK THIS SHOWS THAT THEY WERE IN FACT
DONE, PARTICULARLY NOT ON IN EVERY CASE. I UNDERSTAND PROFESSOR
BALDUS STATED THESE ARE EXAMFLES OF THINGS THEY RECEIVED. I
DON’T BELIEVE 1/VE HEARD ANY TESTIMONY FROM HIM AS TO HOW HE
KNEW THESE PROCEDURES WERE ACTUALLY CONDUCTED.
THE COURT: THERE ARE TWO ISSUES PRESENTED. MS.
WESTMORELAND.
NUMBER ONE IS. CAN YOU OBJECT. AND NUMBER TWO. IS DO
YOU WANT TO OBJECT.
MS. WESTMORELAND: YOUR HONOR, I THINK --
THE COURT: YOUR OBJECTION IS GOOD. I REALLY WANT TO
KNOW IF YOU WANT TO OBJECT.
MS. WESTMORELAND: IT MAY DEPEND ON FOR WHAT PURPOSE
THIS IS BEING OFFERED AT THIS STAGE. YOUR HONOR.
THE COURT: WELL, HE OBVIOUSLY WANTS US TO BELIEVE THAT
THE DATA ON THE ORIGINALS GOT ON THE TAPE IN A FAIRLY RELIABLE
FASHION. I PRESUME THAT’3S WHY YOU'RE OFFERING IT.
MR. BOGER: THAT’S CORRECT. YOUR HONOR.
MS. WESTMORELAND: YOUR HONOR, TO THE EXTENT THAT HE
MAY KNOW THIS BY MEANS OF THE MEMO FROM PROFESSOR WOODWORTH.
THEN I WOULD NOT HAVE AN OBJECTION. IF THATS THE EXTENT THAT
605
BALDUS - DIRECT
WERE REFERRING TO,» TO THE EXTENT OF HIS KNOWLEDGE. I DON’T HAVE
AN OBJECTION ON THAT BASIS.
THE COURT: I DON’T UNDERSTAND WHAT YOU SAID.
MS. WESTMORELAND: I BELIEVE THE MEMO, THE FIRST PAGE.
1S FROM PROFESSOR WOODWORTH, AND HE INDICATES WHAT PROCEDURE WAS
FOLLOWED. AND IF THAT IS ONLY WHAT, IF THAT IS WHAT PROFESSOR
BALDUS IS BASING HIS KNOWLEDGE ON. TQ THAT EXTENT. ILL WITHDRAW
THE OBJECTION TO THE DOCUMENTS.
IM NOT CONCEDING THAT THE MATERIALS ARE COMPLETELY
CORRECT BY ANY STRETCH OF THE IMAGINATION. BUT IF THIS IS HIS
KNOWLEDGE, THEN I“LL ACCEPT IT FOR THAT BASIS.
MR. BOGER: WELL. I MAY WANT TO ASK A FEW QUESTIONS TO
PROFESSOR BALDUS TO FIND OUT.
THE COURT: I“M NOT GOING TO ADMIT IT UNDER SUCH A
CONCESSION AS THAT.
WHAT YOU-RE SAYING IS THAT HE THINKS IT’S RELIABLE. I
THINK IVE LEARNED ENOUGH ABOUT PROFESSOR BALDUS TO KNOW THAT HE
WOULDN’T BE IN HERE IF HE DIDN‘T THINK IT WAS RELIABLE, BUT, I
MAY HAVE ASSUMED TOO MUCH. WE-“LL FIND OUT. THAT”S NOT THE
EVIDENCE.
IF YOU WANT HIM TO PROVE WHETHER OR NOT THAT TAPE IS
RELIABLE, I“LL MAKE HIM PROVE IT, IF YOU-VE GOT ANY SERIOUS
DOUBT ABOUT IT. IF YOU DON‘T HAVE ANY SERIOUS DOUBT ABOUT KEY
PUNCHING FUNCTION, LETS MOVE ON.
MS. WESTMORELAND: YOUR HONOR. I HAVE NO BASIS FOR
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406
BALDUS -~ DIRECT
ASSERTING A SERIOUS DOUBT AT THIS TIME ABOUT THE KEY PUNCHING
FUNCTION THAT WAS CARRIED ON. IM OBVIOUSLY NOT IN POSITION
WHERE I CAN WAIVE THAT PARTICULAR ASSERTION. BUT I HAVE.
THE COURT: HIS TESTIMONY IS IN THE RECORD AS TO WHAT
HE BELIEVES. I HAVE NOT HEARD A MOTION TO STRIKE AND IT WILL
REMAIN IN THE RECORD. AND IF SHE-S GOT SOME PROBLEMS WE’LL HEAR
ABOUT IT LATER.
WELL, I WILL ADMIT THIS IF IT IS TO ILLUSTRATE HIS
TESTIMONY, BUT NOT FOR THE TRUTH OF THE MATTER ASSERTED
THEREIN.
MR. BOGER: THANK YOU. YOUR HONOR.
BY MR. BOGER:
@. PROFESSOR BALDUS, DID YOU RELY ON PROFESSOR WOODWORTH ON
THIS POINT OR DID YOU RELY ON THE POLITICAL SCIENCE LABORATORY?
A. I RELIED ON THE REPRESENTATIONS OF THE POLITICAL SCIENCE
LABORATORY. AND ALSO ON OCCASION I SAW THE PEOPLE WHO DID THIS
WORK WHEN THEY WERE CARRYING OUT THE PROCESS. THE TERMS OF THE
AGREEMENT ON WHICH I RELIED WERE THAT THIS BE DONE IN ALL CASES
AND I HAVE THE COMPUTER PRINTOUT IN MY POSSESSION THAT INCLUDES
THE VERIFICATION SHEET FOR EACH QUESTIONNAIRE.
@. ALL RIGHT, THEN, IS IT CUSTOMARY WITHIN THE SOCIAL SCIENCE
AND ACADEMIC PROFESSION TQ RELY ON SUCH DATA PUNCHERS AS THE
POLITICAL SCIENCE LABORATORY?
A. YES, IT IS.
@. PROFESSOR BALDUS, DID YOU YOURSELF DO WHAT'S CALLED CLEAN
&07
BALDUS - DIRECT
THE DATA, LOOK FOR POSSIBLE ERRORS, ONCE YOU RECEIVED THE
MAGANETIC TAPE FROM THE POLITICAL INDICT LABORATORY?
A. YES, I DID. THE DATA CLEANING PROCESS AS IT IS KNOWN.
INVOLVES THE CONDUCT OF ANALYSES, GENERALLY QUITE SIMPLE AND
STRAIGHTFOWARD ANALYSES, THAT WILL IDENTIFY A MISTAKE IN THE
CODINGS.
TO GIVE YOUR HONOR AN ILLUSTRATION, IF ONE DOES A CROSS
TABULATION BETWEEN QUESTION OF WHETHER OR NOT A CASE WAS
DISPOSED OF AS A VOLUNTARY MANSLAUGHTER CASE OR AS ANOTHER TYPE
OF RESULT, SPECIFICALLY, MURDER, IN THIS CASE, AND THE GQUESTION
OF WHETHER THERE WAS A PENALTY TRIAL. IT APPEARS IN THE CROSS
TABULATION ANALYSIS THAT THERE ARE CASES WHERE THE RESULT WAS A
VOLUNTARY MANSLAUGHTER CONVICTION AND THERE WAS ALSO A PENALTY
TRIAL, ACCORDING TO THE CODINGS YOU KNOW SOMETHING IS WRONG. BUT
YOU KNOW AS A LOGICAL MATTER WITHIN THE SYSTEM THAT THAT OUTCOME
IS IMPOSSIBLE.
SO, WHAT ONE DOES UNDER THOSE CIRCUMSTANCES IS INSTRUCT
THE COMPUTER TO IDENTIFY THE NAME OF THOSE CASES THAT HAVE THOSE
CODES, AND LIST THEM. AND LIST THE VARIABLES THAT YOU HAVE DOUBT
ABOUT, AND THEN GO BACK AND CHECK TQ SEE IF THE CODING IS INDEED
CORRECT.
@. DID YOU PERFORM A SIGNIFICANT AMOUNT OF CLEANING ON THESE
DATA?
A. YES. WE UNDERTOOK EXTENSIVE CLEANING OPERATIONS. USING A
VARIETY OF TECHNIQUES, AND THE WORK WAS DONE AT SYRACUSE
608
BALDUS - DIRECT
1 UNIVERSITY. THIS FILE WAS PUT TOGETHER AT THE UNIVERSITY OF
2 IOWA SHORTLY BEFORE I MOVED TO SYRACUSE, AND THE WORK WAS DONE
3 UNDER THE, UNDER MY SUPERVISION. BUT THE STUDENT WHO DID THE
PRINCIPAL WORK OF READING THE FILES TO DETERMINE WHAT THE
APPROPRIATE CODING SHOULD BE IN THE CASES WHERE IT APPEARED THERE
MIGHT BE SOME PROBLEM WAS A MAN BY THE NAME OF CORRY CORB. WHO
UNDER ED“S SUPERVISION THE SUMMER BEFORE. SO HE WAS INTIMATELY
4
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7 HAD BEEN ONE OF THE CODERS IN GEORGIA, AND HAD WORKED FOR US,
3
9 FAMILIAR WITH THE ENTIRE PROCESS, AND WAS FAMILIAR WITH THE
0 GUIDELINES THAT THE CODERS IN GEORGIA USED TO ASSIST THEM IN
fe THEIR CODING DECISIONS.
12 @. DID YOU INSTRUCT HIM TO RELY ON THOSE GUIDELINES OR
13 PROTOCOLS IN RESOLVING AMBIGUITIES IN DATA WHEN HE WAS CLEANING?
14 A. YES, I DID IT INSTINCTIVELY.
15 G. IF SOMETHING APPEARED TO BE ERRONEOUS FROM THE CLEANING
16 PROCESS, HOW DID YOU, HOW DID YOU CORRECT IT?
17 A. IT’S A SIMPLE PROCEDURE WHEREBY ONE INSTRUCTS A DATA ANALYST
18 TO CHANGE THE CODES THAT ARE IN THE ORIGINAL QUESTIONNAIRE. AND -+
19 @. LET ME DIRECT YOUR ATTENTION QUICKLY TC DB-51 FOR
20 IDENTIFICATION. CAN YOU IDENTIFY THE DOCUMENTS THERE?
21 A. YES. THESE ARE ILLUSTRATIONS, YOUR HONOR, OF THE TYPE OF
22 INSTRUCTION THAT A DATA ANALYST WOULD ENTER INTO A MACHINE TO
23 CHANGE THE CODES ON A PARTICULAR VARIABLE IN THE QUESTIONNAIRE.
24 IF YOU LOOK ON THE FIRST PAGE OF DB-51 DOWN AT THE
23 MIDDLE OF THE PAGE. SAYS IF CASE EQUALS DO-2 OR CASE EQUALS 223.
509
BALDUS - DIRECT
50 FORTH, THE SERIES OF NUMBERS LISTED THERE ARE CASES. WHAT THE
MACHINE DOES IS IDENTIFIES THOSE CASES. THEN THE INSTRUCTION IS
GIVEN THEN DO LDF38 EQUALS 2. THAT WOULD BE AN ENTRY PUT IN TO
CODE THAT VARIABLE "2." THAT IS WHAT WE CALL AN UPDATE, WHICH
WOULD BE UNDERTAKEN AS A RESULT OF FINDING ANY MISTAKES.
@. ARE ALL THE DOCUMENTS INCLUDED HERE EXAMPLES OF COMPUTER
INSTRUCTIONS FOR UPDATING. TO CLEAN INFORMATION?
A. YES.
MR. BOGER: YOUR HONOR, WE MOVE THE ADMISSION OF DB-31
INTO EVIDENCE, AS EXAMPLES OF THE UPDATING OR CLEANING FROCESS
AS TRANSMITTED TO THE COMPUTER TAPE.
MS. WESTMORELAND: YOUR HONOR, I DON’T KNOW THAT THE
ACTUAL COMPUTER INSTRUCTIONS THEMSELVES ARE RELEVANT AS LONG AS
WE HAVE THE TESTIMONY OF CLEANING OPERATION WAS DONE. IF MR.
BOGER WANTS TO PUT THESE IN AS EXAMPLES, HOWEVER, I DON’T REALLY
HAVE ANY OBJECTION FOR THAT PURPOSE.
THE COURT:- ALL RIGHT, FOR THAT PURPOSE THEY“LL BE
ADMITTED.
MR. BOGER: THANK YOU YOUR HONOR.
BY MR. BOGER:
@. PROFESSOR BALDUS, YOU SPOKE ABOUT THE CLEANERS. IF YOU
WOULD, HAVING TO DEAL WITH QUESTIONS OR PROBLEMS THAT MIGHT COME
UP.
WHAT DID THEY HAVE, OR WHAT DID THEY EMPLOY TO CHECK IF
THERE WAS SOME PROBLEM IN THE WAY A QUESTIONNAIRE MAY HAVE BEEN
|
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610
BALDUS - DIRECT
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CODED?
DID THEY HAVE ANY BASE OF INFORMATION AVAILABLE FROM
WHICH TO CHECK THE QUESTIONNAIRE ITSELF?
A. YES. WE HAD AVAILABLE TO US AN EXTENSIVE FILE OF CASE
SUMMARIES WHICH HAD BEEN PRODUCED RY THE CODERS IN GEORGIA, AND
THAT WAS THE RESOURCE WE USED TO CLEAN THE DATA WHENEVER WE HAD
A PROBLEM OF ANY KIND. THESE SUMMARIES INCLUDED A RICH
STATEMENT OF THE FACTS GENERALLY. FACTS OF THE CASE. AND IF
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OF THE PAROLE BOARD HAD INDICATED ABOUT THE PARTICULAR VARIABLE
12 IN QUESTION AND MAKE THE CHANGE.
13 THATS THE BASIS UPON WHICH WE MADE OUR CORRECTIONS.
14 @. IM GOING TO SHOW YOU --—
13 THE COURT: THESE SUMMARIES YOURE TALKING ABOUT. THOSE
16 ARE THE SAME SORT DOF THING WE’VE TALKING ABOUT LAST DAY OR S07?
17 THE WITNESS: YES. YOUR HONOR.
18 BY MR. BOGER:
» 12 Q. I’M GOING TO SHOW YOU, PROFESSOR BALDUS. A DOCUMENT MARKED
20 FOR IDENTIFICATION AS DB-S52 AND I ASK YOU TO LOOK AT IT AND
21 EXAMINE IT, AND IDENTIFY IT.
22 A. DB-52 IS A NOTEBOOK ENTITLED. "CHARGING AND SENTENCING
23 STUDY. TYPED SUMMARY OF DEATH CASES," AND WHAT IT CONSISTS OF IS
24 A, OF THE ORIGINALS OF THE SUMMARIES OF THE DEATH SENTENCE CASES
25 THAT WERE IN OUR SAMPLE.
611
BALDUS ~- DIRECT
@. AND HOW WERE THEY ORGANIZED. BRIEFLY?
A. THEY“RE ORGANIZED ALPHABETICALLY WITHIN THIS FILE.
@. AND DOES THAT FILE CONTAIN ALL THE SUMMARIES IN THE CHARGING
AND SENTENCING STUDY, OR IS IT ITSELF BROKEN DOWN INTO SOME
CATEGORIES?
A. WELL, THIS PARTICULAR NOTEBOOK CONTAINS THE DEATH CASES OR
MOST OF THE DEATH CASES, I BELIEVE, BUT THE ENTIRE FILE OF
SUMMARIES WAS BROKEN DOWN ACCORDING TO DEATH SENTENCE CASES,
LIFE SENTENCE CASES WENT TO PENALTY TRIAL. AND THEN ALL OTHER
CASES WERE PUT INTO A SEPARATE EXTENSION OF THIS SYSTEM.
@. SO THESE SUMMARIES WERE AVAILABLE TO YOU DURING THE DATA
CLEANING PROCESS. ANALYSIS PROCESS, FOR WHATEVER USE THEY MIGHT
BE? |
A. YES. AND WE HAD COMPARABLE SUMMARIES FROM THE PROCEDURAL
REFORM STUDY AS WELL. AND THEY WERE USED FOR CLEANING THE DATA
IN THAT FILE, AS WELL.
@. WE’VE TALKED NOW ABOUT THE DATA ENTRY AND DATA CLEANING
PROCEDURES THAT YOU EMPLOYED IN THE CHARGING AND SENTENCING
STUDY. DID YOU EMPLOY SIMILAR PROCEDURES TO ENTER AND CLEAN THE
DATA FOR THE PROCEDURAL REFORM STUDY?
A. THE ENTRY AND CLEANING PROCESS IN THAT STUDY WAS DIFFERENT
IN ONE PARTICULAR. IN THAT STUDY DID NOT ENGAGE THE LABORATORY
FOR POLITICAL SCIENCE TO ENTER THE DATA. BUT RATHER RELIED ON
THE PROFESSIONAL STAFF AT THE UNIVERSITY OF IOWA COMPUTER
CENTER. THIS IS A STAFF OF PERSONNEL AT THAT CENTER WHOSE JOB
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BALDUS - DIRECT
1 IT IS TO ENTER SURVEY DATA ON FILES FOR FACULTY MEMBERS DOING
2 RESEARCH. AND THAT’S WHO ENTERED THOSE DATA.
3 @. PROFESSOR BALDUS, I“M GOING TO SHOW YOU SOME DOCUMENTS THAT
HAVE BEEN MARKED DURING ED GATES‘ DEPOSITION AS EG-4A AND EG-35.
I BELIEVE. ONE MOMENT.
4
5
4 6 EG-6A AND 6B. LET ME GET THE CLERK’S COPY, UNLESS THE
7 COURT WILL PERMIT ME TO USE COUNSEL-’S COPY?
3 THE COURT: I DON’T HAVE ANY PROBLEM WITH YOU USING
9 COUNSEL “S COPY.
10 MR. BOGER: ALL RIGHT, FINE.
11 BY MR. BOGER:
12 @. AT THE LAST PAGE OF EG-&A, CAN YOU IDENTIFY THE DOCUMENT
i3 THERE?
14 A. YES. THAT'S A SUMMARY IN THE CASE OF JOHN A. BROWN, NUMBER
15 574 IN OUR FILING SYSTEM.
16 @. AND LET ME ASK YOU ABOUT EG-4B, IF YOU‘LL MAKE A SIMILAR
17 IDENTIFICATION ABOUT THE LAST PAGE OF THAT DOCUMENT?
18 A. YES. THAT’S A SUMMARY IN THE CASE OF ONE BILLY STRICKLAND.
% 1? NUMBERED L-31 IN OUR NUMBERING SYSTEM.
20 Q. DO YOU KNOW, PROFESSOR BALDUS, WHEN THOSE SUMMARIES WERE
21 COMPLETED?
22 A. YES. THE SUMMARIES WERE COMPLETED ON THE SITE. IN THE PAROLE
23 BOARD, AND THEN THEY WERE ATTACHED TO THE QUESTIONNAIRES THAT
24 WERE RETURNED TO IOWA. AND THEN THEY WERE TYPED IN IOWA IN THE
23 FALL OF 1981.
BALDUS - DIRECT
1 @. DO YOU KNOW HOW THOSE PARTICULAR SUMMARIES CAME TO BE PART
OF ED GATES” BOOK THERE?
A. YES. COUNSEL FORD IN THE LAST TWO DAYS ASKED ME IF I HAD ANY
COPIES OF THE CHARGING AND SENTENCING QUESTIONNAIRE AND I SAID I
HAD SERIES OF VOLUNTARY MANSLAUGHTER CASES. BUT I ONLY HAD TWO
2
3
4
5
» 64 |MURDER CASES. AND HE EXPRESSED INTEREST IN THE MURDER CASES. SO
7 |1 SAID HERE THEY ARE, TWO THAT HAVE BEEN SENT ON AN EARLIER
8 |OCCASION TO THE ATTORNEY GENERAL IN THIS PROCEEDING, AND THATS
9 |HOW I HAPPENED TO HAND THESE TWO TO HIM.
0 |@. WHY DID YOU HAVE THOSE TWO AVAILABLE?
11 |A. WELL, BECAUSE I HAD KEPT A RECORD OF WHAT I HAD MADE A
12 | PHOTOCOPY OF THE MATERIALS THAT I TRANSMITTED TO THE ATTORNEY
12 | GENERAL.
14 |@. SO THOSE WERE SPECIFIC ONES THAT HAD BEEN REQUESTED DURING
1S |THE DISCOVERY PERIOD BY THE ATTORNEY GENERAL-S OFFICE?
16 |A. YES.
17 |@. ALL RIGHT. THANK YOU.
13 PROFESSOR BALDUS, WERE THERE ANY ADDITIONAL STEPS AFTER
» 19 |THIS DATA ENTERING AND CLEANING PROCESS BEFORE YOU BEGIN
20 |ANALYSIS? WE‘RE VERY CLOSE TO ANALYSIS NOW, BUT I SUSPECT
21 |THERE‘S ONE OR TWO MORE STEPS. CAN YOU TELL ME ABOUT WHAT YOU
22 |HAD TO DO TO GET THE DATA ON THE MAGANETIC TAFE READY FOR YOUR
23 |ANALYSIS?
24 THE COURT: LET ME ASK A QUESTION BEFORE YOU ANSWER
25 THAT QUESTION, DOCTOR BALDUS.
6514
BALDUS - DIRECT
1 1 UNDERSTAND FROM YOUR TESTIMONY THAT THE CLEANING THAT
e WAS DONE BY YOU OR MORE PARTICULARLY BY YOUR CODER-LAW STUDENT.
3 WAS LIMITED TO CHECKING FOR INTERNAL INCONSISTENCIES. IS THAT
4 CORRECT?
3 THE WITNESS: NO, YOUR HONOR. IT WENT BEYOND THAT.
® & INCONSISTENCIES IN THIS SENSE, THAT WE CHECKED FOR CONSISTENCIES
7 BETWEEN THE TWQ FILES OF CASES THAT WE HAD.
3 IN THIS STUDY THERE WERE CASES THAT WERE INCLUDED IN
4 BOTH THE CHARGING AND SENTENCING STUDY AND ALSO IN THE
0 PROCEDURAL REFORM STUDY. SO WE MADE COMPARISONS BETWEEN THOSE
31 TWO FILES OF THE CASES THAT WERE FOUND IN BOTH STUDIES.
12 FOR EXAMPLE. IF WE WOULD LOOK AT THE CODING, SAY FOR
13 STATUTORY AGGRAVATING FACTORS, WE DID AN EXTENSIVE CLEANING JOB
14 ON THE STATUTORY AGGRAVATING FACTORS, SO DEFINED, IN THOSE TWO
15 FILES. AND IF WE FOUND INCONSISTENT CODING ON THOSE TWO FILES,
14 WE WOULD IDENTIFY WHAT THOSE CASES WERE, READ THE SUMMARIES. AND
17 DETERMINE WHETHER IT WAS SIMPLY A MATTER OF INTERPRETIVE
1a DIFFERENCES THAT PRODUCED THE INCONSISTENCIES OR WHETHER IT
Ka 19 ACTUALLY HAD BEEN A CODING MISTAKE. AND WE FOUND IN A FEW
20 INSTANCES THAT THERE HAD INDEED BEEN A CODING MISTAKE.
21 BUT ASIDE FROM THAT, WE DID NOT IN THE CHARGING AND
22 SENTENCING STUDY GO BACK AND CHECK EACH, EACH DATA FILE THAT WAS
23 IN THE COMPUTER AGAINST THE SUMMARY.
24 IN THE PROCEDURAL REFORM STUDY, YOUR HONOR. WE DID DO
23 THAT WITH RESPECT TO ALL OF THE CASES THAT HAD BEEN ORIGINALLY
615
BALDUS - DIRECT
CODED IN THE SUPREME COURT QUESTIONNAIRE. I HIRED TWO PEOPLE AT
a
IOWA, TWO ADULT WOMEN, WHOSE JOB WAS TO TAKE EITHER THE
UNDERLYING FILES THAT WE DESCRIBED HERE EARLIER THAT INVOLVED
THE ABSTRACT THAT HAD BEEN PREPARED IN GEORGIA, AND THE DENNIS
YORK FILES AND THE SUPREME COURT OPINION. AND LOOK AT THE CODING
ON EACH OF THE IMPORTANT AGGRAVATING AND MITIGATING FACTORS THAT
WAS IN THAT FILE AND COMPARE IT WITH THE SUMMARY THAT WE HAD.
S0 ONLY IN THAT FILE IS THAT SORT OF CLEANING AB INITIO
8
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DONE AGAINST THE SUMMARY ITSELF.
10 IN THE CHARGING AND SENTENCING STUDY WE ONLY DID THE
11 CLEANING. CROSS CHECKING THESE FILES THAT OVERLAPPED. AND ALSO
12 CHECKING FOR INTERNAL INCONSISTENCIES.
13 THE COURT: APPROXIMATELY HOW MANY MEASURES OF INTERNAL
14 INCONSISTENCIES DID YOU DEVISE TQ CHECK FOR?
13 THE WITNESS: THE, WELL, I CAN TELL YOU THE PRINCIFAL
16 ONE. YOUR HONOR, WAS THAT WE WOULD GO DOWN THROUGH FREQUENCY
*7 DISTRIBUTIONS. FREQUENCY DISTRIBUTION INVOLVES A LISTING OF
13 EACH VARIABLE AND WHAT THE CODES ARE THAT ARE ENTERED FOR IT.
» 19 AND WHEN YOU EXAMINE THAT FREQUENCY DISTRIBUTION. YOU WILL FIND
20 WHAT ARE CALLED WILD CODES, THAT IS, CODES THAT ARE
21 UNAUTHORIZED, OR CODES THAT HAVE MISSING VALUES. WE WANTED TO
22 CHECK CASES WHERE IT WAS CODED "MISSING" THAT WERE NOT THE TYPE
23 OF VARIABLE WHERE YOU WOULD TEND TO FIND A MISSING VALUE. AND
24 WE WOULD GO AND CHECK THOSE.
23 ALSO, WE DID EXTENSIVE CLEANING IN TERMS OF THE
&16
BALDUS - DIRECT
1 OUTCOMES OF THE PROCESS WHERE WE WOULD EXAMINE THE, BREAK THE
2 CASE DOWN IN TERMS OF WHETHER OR NOT IT PLED QUT TO VOLUNTARY
MANSLAUGHTER. THEN OF THOSE THAT DIDN‘T PLEAD OUT TO VOLUNTARY
MANSLAUGHTER, DID IT PLEAD OUT TO MURDER. BUT OF THOSE THAT
DIDN’T PLEAD OUT TO MURDER, WE WOULD DO CROSS TABULATIONS TO
3
3
S
& CHECK THE FLOW OF THE CASES THROUGH THE SYSTEM.
7 THOSE WERE THE PRINCIPAL PROCEDURES THAT WE USED TO TRY
8 AND IDENTIFY INTERNAL INCONSISTENCIES IN THE FILE.
4 THE COURT: ALL RIGHT. GO AHEAD.
10 BY MR. BOGER:
1} Q. PROFESSOR BALDUS, LET ME ASK YOU ONE OR TWO OTHER QUESTIONS
12 | ABOUT INCONSISTENCIES. ABOUT HOW MANY DATA ENTRIES ALTOGETHER
13 WOULD YOU ESTIMATE THERE WERE IN THE CHARGING AND SENTENCING
14 STUDY?
15 I KNOW THIS HAS TO BE AN APPROXIMATE ESTIMATE.
1& A. MY ESTIMATE IS THERE WERE SOMETHING IN EXCESS OF FIVE
17 HUNDRED THOUSAND ENTRIES IN THAT FILE.
18 Q. AND COULD YOU GIVE A ROUGH ESTIMATE OF HOW MANY CLEANING
12 MISTAKES YOU FOUND AND CORRECTED?
20 A. ON THE BASIS OF THE ANALYSES THAT WE DID, I WOULD
21 ESTIMATE WE FOUND TWO HUNDRED. PERHAPS.
22 @. ALL RIGHT. THANK YOU.
23 LETS GO ON NOW TO THIS QUESTIONABLE LAST STEP BEFORE
24 YOU CAN BEGIN YOUR ANALYSIS.
23 IS THERE ANYTHING THAT YOU NEED TO DO ONCE YOU HAVE THE
617
BALDUS - DIRECT
1 DATA ENTERED AND CLEANED BEFORE YOU CAN BEGIN TO GET RESULTS AND
2 FIND OUT WHETHER THE FACTORS YOU“RE INTERESTED IN HAVE ANY
3 SIGNIFICANT IMPACT ON THE SYSTEM?
4 A. YES. THE FORMAT OF THE DATA, AS IT MOVES FROM THE
b= QUESTIONNAIRE ON TD THE TAPE IS NOT SUITABLE FOR THE TYPE OF
4 STATISTICAL ANAYLSIS THAT WE WERE CONTEMPLATING UNDERTAKING.
7 WHEN DATA ARE ENTERED IN A COMPUTER TO BE USED FOR A
8 STATISTICAL ANALYSIS, YOU ‘NEED THE VARIABLES IN WHAT’S KNOWN AS
? DICHOTOMOUS FORM, EITHER YES-NO, OR THE CHARACTERISTIC IS
10 PRESENT OR ISN‘T PRESENT. OR YOU NEED TO HAVE IT ON SORT OF
11 INTERVAL OR COUNTING SCALE, HOW MANY FACTORS ARE PRESENT IN THE
12 FILE OF A CERTAIN KIND, HOW MANY PRISON SENTENCES THERE ARE
13 WOULD BE A GOOD EXAMPLE.
14 THE QUESTIONNAIRE IN ITS ORIGINAL FORM DOES NOT PRESENT
135 THE DATA IN THAT SORT OF FORMAT FOR THAT SCRT OF ANALYSIS.
1& THERE ARE A FEW OF THEM THAT DO, BUT MOST OF THEM DON-T. SO
17 WHATS NECESSARY IS TO UNDERTAKE A RECODING PROCESS BY WHICH ONE
13 SPECIFIES THE VARIABLES THAT YOU ARE INTERESTED IN IN A FORM THAT
® 19 CAN BE USED TO CONDUCT A STATISTICAL ANALYSIS. AND THIS WAS A
20 TASK THAT REQUIRED ANALYZING THE UNDERLYING DATA IN THE
21 QUESTIONNAIRE AND SPECIFYING A RECODE FOR EACH OF THE VARIABLES
22 THAT WE INTENDED TO INCLUDE IN THE STATISTICAL ANALYSIS.
23 @. LET ME DIRECT YOUR ATTENTION TO DB-354 FOR IDENTIFICATION,
24 AND ASK IF YQU CAN IDENTIFY DOCUMENT?
<3 A. YES. DB-S54 IS ONE PAGE OF A MULTI-PAGE DOCUMENT INCLUDED FOR) |
|
|
|
|
418
BALDUS ~ DIRECT
ILLUSTRATION TO DEMONSTRATE HOW THIS RECODING PROCESS WORKS.
IF YOUR HONCR COULD TURN TO PAGE, RATHER TO --
BY MR. BOGER:
@. DB-347?
A. NO. I WAS LOOKING IN THE WRONG BOOK. I WANT TO GO BACK TO
THE CHARGING AND SENTENCING QUESTIONNAIRE PROPER.
THE COURT: ALL RIGHT, I HAVE EG-&6 IN FRONT OF ME.
THE WITNESS: EG-67
THE COURT: YEAH.
THE WITNESS: RIGHT. IF, YOUR HONOR, IN EG-6, YOU
WOULD TURN TO VARIABLE OR FOIL NUMBER 168, WHICH IS ON PAGE 14.
YOU CAN SEE ——
THE COURT: PAGE WHAT?
THE WITNESS: PAGE 14 OF EG-é6.
THE COURT: ALL RIGHT
THE WITNESS: IT’S VARIABLE 148, POLICE OFFICER.
NOW. IN EVALUATING THIS FILE. THE CODERS WOULD CODE A
"1" IF THE FILE SAID THE VICTIM WAS A POLICE OFFICER.
THEY WOULD CODE "2" IF THERE WAS NOT AN EXPLICIT
STATEMENT TO THAT FACT, BUT THE EVIDENCE STRONGLY SUPPORTED THE
INFERENCE THAT THE FACT EXISTED.
SO WE WOULD CLASSIFY ANY CASE WHERE THAT VARIABLE WAS
CODED 1 OR 2 AS A CASE INVOLVING A POLICE OFFICER VICTIM. WHICH
WOULD QUALIFY IT AS A B-8 STATUTORY CASE UNDER THE STATUTORY
AGGRAVATING FACTORS IN THE GEORGIA CODE.
619
BALDUS - DIRECT
1 80, YOUR HONOR, IF YOU WOULD TURN TO DB-34 IN THE
2 MIDDLE OF THE PAGE, YOU CAN SEE WE HAVE CODING FOR THE STATUTORY
3 AGGRAVATING FACTORS HERE. THE FIRST ONE IS STYLED LDFBS3., MIDDLE
OF THE FIRST PAGE. READS LDFBS EQUALS 0. THAT MEANS THAT’S AN
INSTRUCTION FOR THE COMPUTER TO SET ALL CASES TO ZERO UNLESS THE
FOLLOWING OCCURS:
IF LDF168 IS 1 OR 2, EXCUSE ME. THAT’S WHAT IF 1
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IS GREATER THAN OR EQUAL TO 1 OR LESS THAN OR EQUAL TO 2, THEN
? CODE THAT VARIABLE 1. SO THAT WOULD BE THE RECODED VARIABLE FOR
10 WHETHER OR NOT THERE WAS A POLICE OFFICER VICTIM INVOLVED IN THE
12 BY MR. BOGER:
13 @. WHO UNDERTOOK THIS RECODING OF THE VARIABLES IN THE
14 GUESTIONNAIRE INTO MACHINE READABLE FORM?
13 A. I DID THAT.
16 @. ALL RIGHT. WAS THAT DONE BOTH FOR THE PROCEDURAL REFORM
17 STUDY AND THE CHARGING AND SENTENCING STUDY?
» 37 MR. BOGER: YOUR HONOR, I MOVE DB-354 INTO EVIDENCE AS
20 AN EXAMPLE OF THE WAY IN WHICH RECODING WAS COMPLETED.
21 MS. WESTMORELAND: NO OBJECTION, YOUR HONOR.
22 THE COURT: ALL RIGHT. ITLL BE ADMITTED.
23 MR. BOGER: 1 WOULD LIKE THE COURT REPORTER TO MARK AS
24 DB-5S A DOCUMENT THAT ILL SHOW TO PROFESSCR BALDUS.
23 BY MR. BOGER:
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BALDUS - DIRECT
Q. PROFESSOR BALDUS, WILL YOU IDENTIFY THIS DOCUMENT» DB-537
A. DB-55 IS THE DOCUMENT WHICH INCLUDES THE RECODES OF THE TYPE
1 JUST DESCRIBED FOR THE CHARGING AND SENTENCING STUDY.
@. SO THIS WOULD INDICATE HOW THE QUESTIONNAIRES PUT ON
COMPUTER TAPE WERE ACTUALLY TRANSFORMED INTO VARIABLES UPON
WHICH YOU COMPLETED ANALYSIS FOR THE CHARGING SENTENCING STUDY?
A. THAT'S CORRECT. THESE ARE THE VARIABLES THAT UNDERLIE THE
ANALYSIS THAT I WILL BE PRESENTING TO THE COURT.
MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-3S5
INTO EVIDENCE.
MS. WESTMORELAND: I HAVE NO OBJECTION. YOUR HONOR.
THE COURT: IT WILL BE ADMITTED.
IS IT COMPREHENSIBLE?
THE WITNESS: PARTS ARE. YOUR HONOR.
THE COURT: LET’S SEE IT.
THE COURT: FIRST PART ISN‘T IT. WHAT PART IS?
MR. BOGER: I HAVE ANOTHER COPY, YOUR HONOR.
THE WITNESS: FOR EXAMPLE. YOUR HONOR, PAGE 2, TURN TO
PAGE 2, IT SAYS HERE WE HAVE AN ALPHABETICAL LISTING OF THESE
RECODED VARIABLES AND IT SAYS ACCIDENT, THAT MEANS IF LDF
VARIABLE 308 IS CODED 1 OR 2 THEN THAT VARIABLE IS CODED 1. ALL
OTHER CASES ARE CODED ZERO.
BY MR. BOGER:
G0. NOW THESE NAMES ON THE LEFT SIDE GOING DOWN THE COLUMN, LIKE
BAD DEAF AND BAD DID AND BOOD GAG OR WHATEVER. WHAT DO THOSE
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BALDUS - DIRECT
REPRESENT?
A. THOSE ARE WHAT ARE TECHNICALLY KNOW, YOUR HONOR, AS THE
VARIABLE NAMES. THE VARIABLE LABEL IS A SHORT PLAIN ENGLISH
DEFINITION OF WHAT THIS MEANS,
THE PROCEDURE THAT WE USED WOULD ALLOW A MAXIMUM OF
ONLY EIGHT CHARACTERS TO DEFINE THE NAME OF A VARIABLE, SO
THATS WHY THEY’RE IN THIS ABBREVIATED FORM.
BUT WE HAVE AN ADDITIONAL DOCUMENT WHICH IDENTIFIES THE
NAMES OF EACH OF THE VARIABLES OR RATHER PRESENTS THE LABEL FOR
EACH OF THE VARIABLES WHOSE NAMES ARE PRESENTED HERE.
SO WHAT YOU HAVE, YOU HAVE THE VARIABLE NAME AND YOU
HAVE THE CODING OF THE VARIABLE AND THEN YOU HAVE A LABEL FOR
THE VARIABLE WHICH DEFINES WHAT IT IS.
THE COURT: YOUR EXPERTS HAD ACCESS TO THIS CODING BOOK
BEFORE, MS. WESTMORELAND?
MS. WESTMORELAND: YES. YOUR HONOR, WE HAVE.
THE COURT: ALL RIGHT. HERE YOU GO.
THE WITNESS: THANK YOU.
BY MR. BOGER:
@. PROFESSOR BALDUS, YESTERDAY. OR I BELIEVE DAY BEFORE
YESTERDAY, JUDGE FORRESTER ASKED YOU A QUESTION ABOUT WHETHER
YOUR NUMBERS. YOUR CASES IN THE CHARGING AND SENTENCING STUDY
WERE WEIGHTED PRIOR TO ANALYSIS.
I BELIEVE YOU INDICATED TO THE JUDGE THAT THEY WERE
WEIGHTED.
BALDUS - DIRECT
1 WAS THAT A STILL FINAL STEP BEFORE THE ANALYSIS TOOK
2 PLACE?
3 A. YES, IT WAS.
4 @. CAN YOU TURN TO YOUR DB-S5& AND IDENTIFY THAT DOCUMENT?
A. YES. DB-5&, WHICH IS AN APPENDIX TO AN OVERALL SAMPLING FLAN
wu
b THAT DOCTOR WOODWORTH WILL BE SUBMITTING LATER, YOUR HONOR,
7 PRESENTS A SUMMARY OF THE FINAL SAMPLES THAT WE HAVE USED IN
3 THIS ANALYSIS.
4 PAGE 2 OF THE EXHIBIT LISTS IN COLUMN 2 THE CIRCUIT
0 NAME. AND NAME OF THE CIRCUIT. AND THEN IT LISTS THE NUMBERS OF
11 CASES OF VARIOUS TYPES THAT ARE INCLUDED IN THE STUDY.
12 COLUMNS 4 THROUGH 7 RELATE TO VARIOUS DEATH SENTENCE
13 CASES THAT WE HAVE IN THE STUDY.
14 COLUMNS 8 AND 10 LIST THE MURDER CASES THAT WENT TO A
13 PENALTY TRIAL IN EACH CIRCUIT.
14 NUMBER 9, COLUMN 9 LISTS THE UNIVERSE OF CASES OF
17 MURDER THAT WERE NOT PENALTY TRIAL CASES.
18 AND NUMBER 11 LISTS THE SAMPLE OF MURDER CASES THAT DID
19 NOT INVOLVE A PENALTY TRIAL.
20 IF YOU LOOK DOWN AT ATLANTA, CIRCUIT 3, FULTON COUNTY,
21 I CAN ILLUSTRATE HOW THE WEIGHTING PROCEDURE WORKS, YOUR HONOR.
22 THE COURT: ALL RIGHT.
23 THE WITNESS: IF YOU LOOK AT COLUMN 9. ROW 3»
24 YOU”LL SEE THERE A NUMBER 1462. THAT INDICATES THE NUMBER OF
235 MURDER CASES WITHOUT A PENALTY TRIAL THAT WE ESTIMATE EXISTS IN
BALDUS - DIRECT
FULTON COUNTY.
WE HAVE FORTY-TWO SUCH CASES IN OUR SAMPLE. S0 WE
DIVIDE THAT FORTY-TWO INTO 142 AND THAT GIVES US A WEIGHT WHICH
IS INDICATED IN COLUMN 12, 3.857143 FOR EACH CASE THAT'S
INVOLVED IN FULTON COUNTY.
THAT OVERCOMES THE PROBLEM THAT YOUR HONOR REFERRED TO.
THE COURT: WHERE DID YOU GET THE 1462 FROM?
THE WITNESS: THATS THE UNIVERSE OF CASES THAT WAS
DEFINED BY THE LISTING OF THE DEPARTMENT OF CORRECTIONS THAT I
REFERRED TO EARLIER.
THE COURT: THAT IS ADDED TO, IN SOME RESPECTS?
THE WITNESS: WELL. THESE PARTICULAR ONES ARE NOT ADDED
TO. IT WAS ACTUALLY THE DEATH SENTENCE CASES THAT WERE ADDED TO
THAT, YOUR HONOR. THESE ARE MURDER CASES THAT ENDED UP WITH A
LIFE SENTENCE THAT ARE LISTED HERE IN COLUMN 2.
SEE, THE COLUMN 7 LISTS THE TOTAL NUMBER OF DEATH
SENTENCE CASES IN FULTON COUNTY, AND THE DEPARTMENT OF
CORRECTIONS LIST HAD SEVEN DEATH SENTENCE CASES IN FULTON
COUNTY. THOSE ARE INDICATED IN COLUMNS 4 AND 3.
THROUGH OUR SEARCH FOR ADDITIONAL CASES THAT FELL
WITHIN THE TIME FRAME OF OUR STUDY, WE FOUND 3 SUCH CASES IN
FULTON COUNTY. THOSE ARE INDICATED UNDER COLUMN é WHICH
INDICATES, EXCUSE ME, COLUMN 7 SHOWS THE TOTAL OF TEN. SO WE
HAVE TEN DEATH SENTENCE CASES AND ALL THE DEATH SENTENCE CASES
ARE INCLUDED.
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BALDUS - DIRECT
THEN WE HAVE IN ADDITION, NINE DEATH SENTENCE,
CORRECTION, NINE LIFE SENTENCE CASES THAT ADVANCED TC A PENALTY
TRIAL IN FULTON COUNTY. THOSE ARE INDICATED IN COLUMNS & AND
10.
WE HAVE ALL THE CASES WHICH, OF WHICH WERE AWARE IN
FULTON COUNTY WHERE THERE WAS A PENALTY TRIAL.
NOW. WITH RESPECT TO THE MURDER CASES WHERE THERE WAS
NO PENALTY TRIAL, AND WITH RESPECT TO THE VOLUNTARY MANSLAUGHTER
CASES, WE DO NOT HAVE ALL THE CASES. S0 THAT'S WHERE WE
CONDUCTED THE STRATIFIED SAMPLE. THAT PRODUCED THE DIFFERENTIAL
SAMPLING RATES IN THE VARIOUS CIRCUITS. AND THATS WHAT THE
WEIGHTS ARE USED TO ADJUST FOR.
PROFESSOR WOODWORTH WILL EXPLAIN THE THEORETICAL AND
SCIENTIFIC JUSTIFICATION FOR THIS PROCEDURE. BUT I“M CAPABLE OF
EXPLAINING TO YOU THE SIMPLE ARITHMETIC THAT WAS USED TO
CALCULATE THE MATHEMATICS AND IT’S A VERY SIMPLE MATTER.
FOR EACH CASE IN THE ANALYSIS. WHEN A WEIGHTED ANALYSIS
1S DONE. EACH CASE IN FULTON COUNTY IN THE CATEGORY OF MURDER.
WITHOUT A PENALTY TRIAL, RESULTING IN A LIFE SENTENCE IS
MULTIPLIED BY THIS WEIGHT, 3.835 ET CETERA.
AND OVER IN THE VOLUNTARY MANSLAUGHTER CATEGORY. WHERE
WE HAVE 44% CASES IN THE UNIVERSE. AGAIN, YOUR HONOR, THAT
UNIVERSE IS THE LISTING OF CASES THAT WAS IN THE DEPARTMENT OF
OFFENDER REHABILITATION.
OUR RANDOM SAMPLE OF THE WHOLE STATE PRODUCED 112 CASES
23
BALDUS - DIRECT
pb
s IN THE SAMPLE. THAT LED US TO WEIGHT THAT CASE. THOSE CASES. BY
A FACTOR OF FOUR. IT WAS CALCULATED BY DIVIDING THE 448 BY 112.
AND YOU CAN SEE OVER IN THE FINAL COLUMN WHAT THE TOTAL
UNIVERSE OF CASES IS IN THE JURISDICTION, 629. AND THAT 629 IS
THE TOTAL OF THE 112 MULTIPLIED BY THE WEIGHT FOR VOLUNTARY
MANSLAUGHTER, PLUS THE 142 WHICH REPRESENTS THE MURDER. I BEG
YOUR PARDON, STRIKE THAT. IT REPRESENTS THE SAMPLE OF LIFE CASES
WITHOUT A PENALTY TRIAL OF WHICH WE HAVE FORTY-TWO MULTIPLIED BY
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THE WEIGHT FOR THAT CLASS OF CASES, WHICH IS 3.83 ET CETERA.
PLUS THE NINE LIFE PENALTY TRIAL CASES, PLUS THE TEN DEATH
—
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11 SENTENCE CASES, ADDS UP TO THE 629 TOTAL CASES IN THE UNIVERSE
12 FOR FULTON COUNTY.
13 BY MR. BOGER:
14 R. THOSE ARE ESTIMATED CASES?
13 A. NO. THOSE ARE THE ACTUAL CASES.
146 @. ALL RIGHT.
17 A. THAT WERE IN THE UNIVERSE AS DEFINED BY THE DOCUMENTS GIVEN
18 TO US BY THE DEPARTMENT OF OFFENDER REHABILITATION.
» 17? @. NOW. DID YOU PERFORM THIS KIND OF WEIGHTING OPERATION IN THE
20 PROCEDURAL REFORM STUDY?
21 A. NO. WE DID NOT DO THAT IN THE PROCEDURAL REFORM STUDY. YOUR
22 HONOR, FOR THE REASON THAT IN THE PROCEDURAL REFORM STUDY WE HAD
23 ALL THE CASES, SO IT WAS UNNECESSARY TO WEIGHT ANYBODY.
24 @. AND DID YOU USE THE WEIGHTS HERE IN THE ANALYSIS THAT YOU
23 CONDUCTED FOR THE CHARGING AND SENTENCING STUDY?
BALDUS - DIRECT
1 A. WE USED THE WEIGHTS EXTENSIVELY IN OUR ANALYSIS IN THE
2 CHARGING AND SENTENCING STUDY.
IN ADDITION, WE CONDUCTED ALTERNATIVE ANALYSES WHICH DO
NOT EMPLOY THE WEIGHTS. SITUATE INDICATED, YOUR HONOR, WE HAD
DRAWN A TWENTY-FIVE PERCENT RANDOM SAMPLE OF CASES, OF WHICH WE
TWENTY-FIVE PERCENT OF THE MURDER CASES WHO DID NOT RECEIVE A
DEATH SENTENCE, AND TWENTY-FIVE PERCENT OF THE VOLUNTARY
3
4
5
& SELECTED TWENTY-FIVE PERCENT OF THE DEATH SENTENCE CASES.
7
&
? MANSLAUGHTER CASES. THATS AN ALTERNATIVE, SEPARATELY SPECIFIED
10 DATA SET AND TO TEST THE QUESTION OF WHETHER OR NGT THE RESULTS
11 OF OUR ANALYSIS WOULD BE COMPARABLE USING THAT SAMPLE. WHICH
12 DOES NOT INVOLVE WEIGHTS, WITH THE RESULTS THAT WE OBTAINED
13 USING THE WEIGHTING. WE CONDUCTED TWO SEPARATE ANALYSES ON OUR
14 KEY, KEY ANALYSIS IN THE STUDY. SO ACTUALLY WE HAVE TWO
15 ALTERNATIVE METHODS. BUT THE PRINCIPAL METHOD, HOWEVER.
16 INVOLVES THE WEIGHTING PROCEDURE, BECAUSE THAT FROVIDES MORE
17 INFORMATION ABOUT THE CASES IN THE STATE OF GEORGIA.
13 MR. BOGER: YOUR HONOR, I MOVE AT THIS TIME THE
1? ADMISSION OF DB-36 INTO EVIDENCE.
20 MS. WESTMORELAND: YOUR HONOR, I WOULD JUST LIKE TO ASK
21 COUNSEL, I BELIEVE SOME INDICATION WAS GIVEN THAT PROFESSOR
22 WOODWORTH WAS ALSO GOING TO FRESENT THE DOCUMENT.
23 I HAVE NO OBJECTION TO THE DOCUMENT. I WOULD NOT LIKE
24 TO DUPLICATE DOCUMENTS AT SOME LATER POINT. AND I UNDERSTAND
23 THIS MAY BE A PART OF PROFESSOR BALDUS” FINAL REPORT. I“M NOT
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BALDUS -~ DIRECT
CERTAIN ABOUT THAT. IN THE SENSE OF AVOIDING DUPLICATION.
THATS MY ONLY CONCERN.
MR. BOGER: I“M TEMPTED TO SAY. YOUR HONOR, AT THIS
POINT, IT WOULD BE VERY USEFUL IN ILLUSTRATING PROFESSOR BALDUS”
TESTIMONY. I KNOW I WAS HAVING TROUBLE FOLLOWING SOME OF THE
NUMBERS, AND I SUSPECT JUST FOR THAT REASON ALONE, IT’S A SHORT
DOCUMENT. I DON’T THINK IT WILL BURDEN THE RECORD EXTENSIVELY,
AND WOULD SUGGEST FOR THE PURPOSE OF SOMEONE WHO IS REVIEWING
BOTH HIS TESTIMONY WITH EVIDENCE BOOK IN HAND IT MIGHT BE
VALUABLE AT THIS POINT.
THE COURT: I HAVE NO OPINION ON WHETHER THE TESTIMONY
SHOWS WHAT THE DOCUMENT SAYS OR THAT THE DOCUMENT SAYS WHAT THE
TESTIMONY SHOWS. OR WHAT TO DO WITH IT AT THIS POINT. I
UNDERSTAND WEIGHTING, BUT I DON’T UNDERSTAND WHAT I JUST HEARD.
IM GOING TO HAVE TO THINK ABOUT IT. I DON’T THINK IT”S A
REFLECTION ON DOCTOR BALDUS, IT/S BEGINNING TO GRIND SLOWLY. MR.
FORD, AT FIVE 0“CLOCK.
I THINK IF I HEARD MS. WESTMORELAND’S OBJECTION IT WAS
THAT WE NOT HAVE A BUNCH OF DIFFERENT NUMBERS FOR THE SAME
ANIMAL. DB-56, LET’S LET IN.
MR. BOGER: THANK YOU.
BY MR. BOGER:
@. ALL RIGHT, PROFESSOR BALDUS, HERE YOU ARE.
IN THE LATE FALL, WINTER, OF 1981, “82, WITH DATA THAT
HAD BEEN GATHERED AND ENTERED AND CLEANED AND RECODED. AT THIS
BALDUS ~ DIRECT
1 POINT. I SUSPECT YOUR ANALYSIS STARTS.
WHAT KNOWLEDGE AND SKILLS DOES ONE BRING TO THE PROCESS
nN
3 OF ANALYSIS OF DATA LIKE THIS? IS IT SIMPLY A QUESTION OF
4 HAVING NUMBERS SPEW FORTH FROM THE COMPUTER?
a A. NO. IT IS NOT, UNFORTUNATELY.
THE PROCESS OF UNDERTAKING ACTUAL ANALYSIS OF THE DATA
SET OF THIS SORT REQUIRES A COMBINATION OF KNOWLEDGE ABOUT A
VARIETY OF THINGS. AND A VARIETY OF DIFFERENT SKILLS.
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FIRST. ONE NEEDS TO BRING TO THE TASK KNOWLEDGE ABOUT
10 THE UNDERLYING PROCESS THAT YOU‘RE STUDYING, IN THIS PARTICULAR
11 CASE, GEDRGIA‘S CHARGING AND SENTENCING PROCESS.
12 IN THAT REGARD, I DREW VERY HEAVILY ON THE EXPERTISE OF
13 MY CO-AUTHOR, WHO IS NOT HERE WITH US, CHARLES PULASKI. WHO IS A
14 SPECIALIST IN CRIMINAL JUSTICE, GENERALLY. AS WELL AS IN THE
15 AREA OF CAPITAL PUNISHMENT.
16 I DREW ON MY, ON MY OWN EXPERTISE AS A SCHOLAR IN THE
A7 AREA OF CAPITAL PUNISHMENT.
1a ON THE BASIS OF THIS KNOWLEDGE AND EXPERIENCE. OR
s 19 CONSULTATION WITH THE LITERATURE, WE BEGAN TO ADDRESS THE
20 QUESTIONS THAT WE HOPED TO ANSWER THROUGH THIS ANALYSIS.
21 @. WHY ARE THESE OTHER SKILLS IMPORTANT IN CONDUCTING AN
22 ANALYSIS?
23 A. THE OTHER SKILLS THAT I'M —-
24 ©. NO. THE SKILLS YOU JUST MENTIONED, ISN‘T ANALYSIS A PROCESS
23 OF LOOKING AT NUMBERS AND ——
BALDUS - DIRECT
1. THE COURT: DON’T YOU THINK THAT’S SELF-EVIDENT. MR.
2 BOGER?
3 LET“S MOVE ON.
MR. BOGER: ALL RIGHT.
THE WITNESS: THE NEXT CHALLENGE IS TO BE ABLE TO
4
9
%v b& IDENTIFY THE APPROPRIATE PROCEDURES TO ANSWER THE QUESTIONS.
7 AND THAT REQUIRES A KNOWLEDGE OF THE APPROPRIATE STATISTICAL
3 METHODS TO USE IN CONDUCTING THE ANALYSIS AND THEN THE FINAL
? CHALLENGE 1S WHAT TO MAKE OF THE ANSWERS THAT THE ANALYSIS
10 PRODUCES. AND THAT REQUIRES EXPERIENCE IN THE INTERPRETATION OF
11 DATA AS THEY RELATE TO THE PARTICULAR CHARGING AND SENTENCING
12 PROCESS THAT WE WERE CONCERNED WITH.
13 BY MR. BOGER:
14 G. HOW DID YOU START YOUR ANALYSIS OF THE EFFECTS OF THE
13 GEORGIA CHARGING AND SENTENCING SYSTEM?
16 A. WE STARTED THE PROCESS BY EXAMINING THE FREGUENCY OF
17 HOMICIDES IN THE STATE OF GEORGIA TO BEGIN WITH.
18 WE WERE INTERESTED IN SEEING HOW LARGE A POPULATION OF
19 HOMICIDES THERE WERE. WHAT THE DISPOSITION OF THE CASES WAS AS A
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20 RESULT OF THOSE HOMICIDES AND HOW MANY DEATH SENTENCES RESULTED |
21 FROM THOSE HOMICIDES OVER A PERIOD OF TIME. AND TO DO THAT, WE
22 CONSULTED THE F.B.I. RECORDS, WHICH GAVE US THE INFORMATION ON
23 THE TREND OF HOMICIDE IN THIS JURISDICTION, AND THEN CALCULATED
24 THE DEATH SENTENCING FREQUENCIES AMONG THOSE CASES, FROM YEAR TO
25 YEAR, ON A YEAR-TO-YEAR BASIS, FROM THE PERIOD 1974 THROUGH
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BALDUS - DIRECT
197%.
@. SO THIS IS AN EXAMINATION OF THE SENTENCING OUTCOMES
THEMSELVES IN GEORGIA, IN HOMICIDE CASES?
A. YES. THE EXHIBIT IDENTIFIED AS DB-57 PRESENTS THE RESULTS
OF THAT PRELIMINARY ANALYSIS.
THE FIRST PANEL OF THAT EXHIBIT SHOWS THE FREQUENCY OF
MURDERS AND NON-NEGLIGENT HOMICIDES, ON A YEARLY BASIS, DURING
THE PERIOD OF OUR 3TUDY.
PANEL NUMBER 2 OF DB-57 INDICATES THE DISPOSITION OF
THE CASES IN OUR UNIVERSE THAT WE ESTIMATED DURING THIS SAME
PERIOD OF TIME.
I POINT OUT, YOUR HONOR. THAT WHEN WE MAKE REFERENCES
TO THE NUMBERS OF CASES INVOLVED IN THE TABLES THAT RELATE TO
THE CHARGING AND SENTENCING STUDY. THAT WE ARE MAKING ESTIMATES
BASED UPON THE SAMPLES THAT WE HAVE, THAT IS, WE CLASSIFY A
CASE, AND THEN APPLY THE WEIGHTS WE LOOKED AT EARLIER TO
DETERMINE WHAT THE ESTIMATED NUMBER OF CASES IS.
AND THIS SECOND PANEL INDICATES THE NUMBER OF DEATH
SENTENCES PER YEAR OVER THIS PERIOD OF TIME, AS WELL AS THE
NUMBER OF MURDER CONVICTIONS, WITH LIFE SENTENCES AND VOLUNTARY
MANSLAUGHTER CONVICTIONS AND ONE CAN SEE FROM THIS THAT THE
SYSTEM REFLECTS A CERTAIN STABILITY OVER TIME WITH RESPECT TO
THESE OUTCOMES.
FINALLY. IN PANEL 3 WE EXAMINE DEATH SENTENCING RATES.
3A INDICATES THE RATIO OF DEATH SENTENCES EACH YEAR TO THE
631
BALDUS - DIRECT
ry
NUMBER OF MURDERS AND NON-NEGLIGENT HOMICIDES REPORTED TO THE
p F.B.I1. BY THE POLICE OFFICIALS IN GEORGIA EACH YEAR.
3 AND AGAIN. AS YOU LOOK AT THOSE RATES OVER THE PERIOD
4 OF TIME OF THIS STUDY, YOU CAN SEE AS WELL THAT IN TERMS OF THE
bo FREQUENCY OF DEATH SENTENCING, THAT THE SYSTEM ALSO DEMONSTRATES
b STABILITY FROM ONE YEAR TO THE NEXT.
7 THE FINAL ROW OF NUMBERS THERE SHOWS SLIGHTLY HIGHER
8 RATES OR SUBSTANTIALLY HIGHER RATES AND THE REASON IS THAT THE
2? NUMERATORS USED TO CALCULATE THOSE FIGURES ARE CASES IN OUR
0 SAMPLE FROM THE CHARGING AND SENTENCING STUDY WHICH RESULTED IN A
11 MURDER CONVICTION EITHER AT TRIAL OR BY PLEA, AND THEYRE ALSO.
12 EXCEPT FOR THE ONE YEAR OF 1978, THE DEATH SENTENCING RATE FOR
13 | THOSE CASES IS QUITE STABLE.
14 @. IS THIS DB-7 A PART OF YOUR FINAL REFORT IN THE CHARGING AND
15 SENTENCING STUDY?
1& A. YES.
17 MR. BOGER: YOUR HONOR, AT THIS POINT, I MOVE ITS
18 ADMISSION INTO EVIDENCE.
» 19 MS. WESTMORELAND: YOUR HONOR. INSOFAR AS ONCE AGAIN,
20 THE SAME CONCERNS ABOUT DUPLICATING. 1 BELIEVE THIS WILL BE IN
21 THE MIDDLE OF THE FINAL REPORT, 50 IT WILL, WE WILL BE INCLUDING
e. IT AGAIN.
23 THE COURT: IN WHAT FORM ARE YOU GDING TO GIVE ME A
24 FINAL REPORT? ARE YOU GOING TO GIVE IT TO ME PAGE BY PAGE OR
23 ARE YOU GOING TO GIVE IT TO ME IN A NICE LITTLE PACKAGE? A
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BALDUS ~ DIRECT ;
MR. BOGER: AT THIS POINT, THE PACKAGE IS NOT VERY
NICE. BUT I“M TOLD IT WILL BE SOME POINT. THE FINAL REFORT.
YOUR HONOR. 1S SUBSTANTIAL. IT WILL PROBABLY TAKE A VOLUME OR
TWO OF A NOTEBOOK. PROFFESSOR BALDUS AND I HAVE TRIED TO
CONDENSE THE MOST IMPORTANT INFORMATION, INFORMATION WE THINK
WHICH WILL GIVE THE SUMMARY REPORT FOR YOUR HONOR IN THESE
EXHIBITS, DB-57 THROUGH DB-112.
WE INTEND TO PRODUCE THE FINAL REPORT AS DB-113. AND
PROFESSOR BALDUS MIGHT HAVE SOME ADDITIONAL REMARKS ABOUT THAT.
BUT THIS IS THE FORM WHICH WE THOUGHT IT WOULD BE MOST CLEAR TO
PRESENT IT TO THE COURT.
THE COURT: ALL RIGHT. IF I UNDERSTAND WHAT YOU ARE
TELLING ME, IT MIGHT BE POSSIBLE TO GO BACK AT A LATER DATE AND
SAY DB-57 IS PAGE X OF 113%
MR. BOGER: THAT’S CORRECT. YOUR HONOR. ALTHOUGH MY
IMPRESSION IS THAT SOME OF THE PAGES. FOR EXAMPLE, THIS IS A
TABLE A. I DO NOT BELIEVE THAT PAGE IS NUMBERED IN THE FINAL
REPORT. I THINK THE PROBLEM IS THAT THE REPORT IS FREFARED I
THINK FOR EVENTUAL PRINTING AND PUBLICATION, AND THEREFORE
LEAVES A SPACE IN THE MIDDLE OF A TEXT. EXPLANATORY TEXT FOR A
TABLE TO GO IN AND THAT TABLE FOLLOWS IT. AND IT DOES NOT ITSELF
HAVE A NUMBER. S50 FOR THAT REASON. IT SEEMS TO US IT’S QUICKER
TO GET TO DB-57 IN A BOOK LIKE THIS, THAN TO TRY TO FIND IT AMID
LENGTHY TEXT.
THE COURT: WELL, WE‘LL SEE WHAT WE HAVE WHEN WE GET TO
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BALDUS - DIRECT
113.
YOU HAVE NO OBJECTION TO DB-377?
MS. WESTMORELAND: YOUR HONOR, INSOFAR AS I UNDERSTAND
THAT THIS IS APPARENTLY DATA THAT PROFESSOR BALDUS HAS RELIED
UPON IN HIS STUDY. INSOFAR AS ITS BEING ADMITTED FOR THAT
PURPOSE, I HAVE NO OBJECTION.
MR. BOGER: WOULD YOUR HONOR DEFER TO DELAY
CONSIDERATION OF ALL OF THE, I EXPECT TO MOVE THE ADMISSION OF
ALL THESE TABLES IN EVIDENCE, AND WAIT AND SEE 113 AND MAKE A
DECISION AT THAT POINT, THAT’S CERTAINLY SUITABLE TO US. WE
HOPED THIS WOULD BE A CLEAR WAY FOR THE CONVENIENCE OF THE
COURT, BUT --
THE COURT: I DON’T HAVE ANY PROBLEM WITH IT, IM
TRYING TO FIND QUT IF MS. WESTMORELAND HAS ANY PROBLEM WITH IT.
MS. WESTMORELAND: I DON’T HAVE ANY PROBLEM WITH IT,
YOUR HONOR, IN THAT METHOD, EXCEPT FOR BURDENING THE RECORD WITH
TOD MUCH PAPER AT THIS STAGE OF THE GAME.
THE COURT: WELL CROSS THAT BRIDGE WHEN WE GET TO 113,
THEN.
FOR THE MOMENT, S7 IS ADMITTED. IF THATS ALL YOU“VE
GOT TO SAY ABOUT IT.
MR. BOGER: THANK YOU, YOUR HONOR.
| BY MR. BOGER:
@. PROFESSOR BALDUS. IS THERE ANY OTHER WAY IN WHICH YOU LOOKED
AT THESE DEATH SENTENCING RATES AND OTHER SENTENCING RATES AND
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BALDUS - DIRECT
1 HOMICIDES IN THE STATE OF GEDRGIA DURING THE PERIOD OF CHARGING
2 AND SENTENCING STUDY?
A. YES. ANOTHER PRELIMINARY STEP WAS TO FOCUS ON THE
DISPOSITION OF THE CASES, THE OUTCOMES OF THE CASES IN THE
SAMPLE.
3
4
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% & OUR OBJECTIVE HERE WAS TO TRY AND IDENTIFY THE FACTORS
7 THAT INFLUENCE THE QUTCOMES OF THE CASES.
3 ACCORDINGLY. WE CONSIDERED IT IMPORTANT TO CLASSIFY THE
9 CASES IN TERMS OF THE OUTCOMES THAT EACH EXPERIENCED. AND ALSO
10 TO FOCUS SHARPLY ON THE ESSENTIAL DECISIONS THAT PRODUCED THOSE
11 QUTCOMES.
12 AND TO IDENTIFY FURTHER THE DEGREE TO WHICH THE RISK OF
13 A DEATH SENTENCE INCREASED AS ONE MOVED THROUGH THE CHARGING AND
14 SENTENCING PROCESS FROM A POINT OF INDICTMENT TO THE FINAL DEATH
1S SENTENCING DECISION.
16 @. DO YOU HAVE A DOCUMENT THAT REFLECTS THAT PORTION OF YOUR
17 ANALYSIS?
18 A. YES, WE HAVE TWO DOCUMENTS THAT REFLECT THAT.
» 19 @. LET ME DIRECT YOUR ATTENTION TO DB~38.
20 A. YES. DB-353 PRESENTS A FLOW CHART THAT INDICATES HOW THE
21 CASES WERE DISPOSED OF THAT WERE INCLUDED IN OUR SAMFLE.
22 THE BAR AT THE TOP OF THE FIGURE INCLUDES ALL THE CASES
23 IN THE UNIVERSE OF CASES AS SPECIFIED IN THE DEPARTMENT OF
24 OFFENDER REHABILITATION DOCUMENTS.
23 THIS NUMBER, 2484, IS THE UNIVERSE. THAT WE FIND.
mp ——— ee r————————.__t—— A A ———
BALDUS - DIRECT
1 @Q. YOU’RE SPEAKING NOW OF THE NUMBER AT THE LEFT IN PARENTHESIS
2 BELOW THAT TEXT ON THE FIRST BAR?
3 A. EXACTLY. TO THE LEFT, BELOW THE LABEL. ACCOMPANYING THE
4 FIRST BAR.
@. WHAT DOES THE 1.0 WITHIN THE BAR MEAN? 4]
& A. THAT MEANS THAT THAT BAR INCLUDES ALL OF THE CASES WITHIN
7 THE UNIVERSE.
8 THE COURT: AND $4 PERCENT OF THEM WERE INDICTED FOR
? MURDER, AND 55 PERCENT OF THEM, WHATEVER THE NEXT ONE IS, WERE —-
10 THE WITNESS: 94 PERCENT WERE INDICTED FOR MURDER AND
11 AFTER A PENALTY, CORRECTION, AFTER YOU TAKE ACCOUNT OF THE CASES
12 THAT WERE INDICTED FOR MURDER AND PLED TO VOLUNTARY
13 MANSLAUGHTER. THE ORIGINAL POOL OF CASES REDUCED 45 PERCENT. 3595
14 PERCENT OF THE CASES REMAIN AT THAT POINT.
15 THEN OF THOSE CASES THAT REMAIN, A NUMBER PLEAD OUT TO
16 MURDER. AND AFTER YOU REMOVE FROM THE POOL THOSE CASES THAT
17 PLEAD GUILTY TO MURDER WITHOUT A PENALTY TRIAL, YOU’RE LEFT WITH
18 FORTY-FIVE PERCENT OF THE ORIGINAL SAMPLE OF CASES.
% 19 BY MR. BOGER:
20 @. WELL, YOU MOVE DOWN AT SOME POINT IT SEEMS TO .03 WHO
21 RECEIVE SENTENCES TO DEATH. WHAT WAS THE OVERALL SIGNIFICANCE OF
22 DB-58 FOR YOUR ANALYSIS?
<3 A. THE OVERALL SIGNIFICANCE OF IT WAS TO INDICATE THE
24 SIGNIFICANT PROPORTION OF CASES THAT WERE DISPOSED OF AT EARLY
in) STAGES OF THE PROCESS. AND TO DEMONSTRATE THE POINTS AT WHICH
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BALDUS - DIRECT 2
THE DECISION HAD THE GREATEST EFFECT ON THE LIKELIHOOD THAT ONE
WOULD CONTINUE TO RUN A RISK OF RECEIVING A DEATH SENTENCE OR
ACTUALLY RECEIVE ONE.
@. AND WHAT DOES THE DB-38 REFLECT WITH RESPECT TO THAT
QUESTION?
A. DB-53 INDICATES THAT THE POINT AT WHICH THE LARGEST
PROPORTION OF PEOPLE ARE REMOVED FROM THIS PROCESS IS THE
DECISION TO, DECISION OF THE PROSECUTOR TO ACCEPT A PLEA TO A
VOLUNTARY MANSLAUGHTER CONVICTION, FOLLOWING MURDER INDICTMENT.
THAT HAS A SIGNIFICANT EFFECT ON THE POPULATION OF
CASES.
THE MOST CRITICAL DECISIONS IN TERMS OF THE RISK OF A
DEATH SENTENCE, HOWEVER. ARE THE LAST TWO DECISIONS IN THE
PROCESS. AND THAT IS THE DECISION OF THE PROSECUTOR TO ADVANCE
CASES TO PENALTY TRIAL FOLLOWING A MURDER CONVICTION AT THE
GUILT TRIAL.
THERE ARE FEW GUILT TRIALS FOLLOWING MURDER PLEAS; MOST
MURDER PLEAS. IT APPEARS. ARE BASED UPON AN UNDERSTANDING THAT
THE PLEA IS GIVEN IN EXCHANGE FOR A WAIVER OF THE DEATH
SENTENCE. SO THE BIG PROPORTION OF CASES THAT ADVANCE TO
PENALTY TRIALS FOLLOW A DECISION TAKEN BY A PROSECUTOR TO MOVE
THE CASE TO THAT STAGE. FOLLOWING A CONVICTION AT TRIAL.
SO YOU CAN SEE WHEN YOU COMPARE THE GROUP OF DEFENDANTS
CONVICTED OF MURDER AT PENALTY TRIAL. THAT AT THAT STAGE, WE
HAVE 31 PERCENT OR .31 OF THE ORIGINAL UNIVERSE OF CASES WHEREAS
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BALDUS - DIRECT
1 WHEN WE LOOK AT THE PEOPLE WHO END UP IN A PENALTY TRIAL. WE SEE
2 THAT THAT POPULATION IS NOW REDUCED TO TEN PERCENT OF THE
3 ORIGINAL POOL.
4% THE COURT: THAT MEANS THAT ONE IN THREE THAT GO TO
te] TRIAL WILL FACE A PENALTY TRIAL. IS THAT RIGHT?
% 6 THE WITNESS: YES, YOUR HONOR.
7 THE COURT: HALF OF THOSE WILL BE SENTENCED TO DEATH.
8 THE WITNESS: YES. JUST SLIGHTLY IN EXCESS OF HALF,
9? THATS CORRECT.
10 AND OBVIOUSLY, THE MOST IMPORTANT POINT HERE IN THIS
11 DECISION PROCESS OF THE, ARE THE DECISIONS MADE BY THE DEATH
12 SENTENCING JURIES.
13 BY MR. BOGER:
14 @. LET ME ASK YOU ONE QUESTION. PROFESSOR BALDUS, ABOUT YOUR
15 LAST REMARK THERE.
16 IS IT YOUR TESTIMONY ONE IN THREE WHO CGO TO TRIAL WILL
17 ADVANCE TO PENALTY TRIAL OR IS THE FIGURE SOMETHING SLIGHTLY
18 DIFFERENT?
x 19 A. ITS ONE IN THREE WHO ARE CONVICTED OF MURDER AT THE TRIAL.
20 WHO HAVE THEIR CASES ADVANCED TO A PENALTY TRIAL.
21 QR. ALL RIGHT THEN.
22 MR. BOGER: AT THIS TIME, I MOVE THE ADMISSION OF DB-38
23 INTO EVIDENCE.
24 MS. WESTMORELAND: YOUR HONOR, IF I“M CORRECT IN
23 ASSUMING THIS IS BEING OFFERED TO SHOW WHAT THE DATA IN CHARGING
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BALDUS ~ DIRECT
1 AND SENTENCING STUDY SHOW. THEN I HAVE NO OBJECTION.
r I DO NOT NECESSARILY CONCEDE THAT THE DATA BASE IS
3 ACCURATE IN ITSELF, BUT IF THIS IS OFFERED TO SHOW WHAT THE
CHARGING AND SENTENCING SHOWS, I HAVE NO OBJECTION.
THE COURT: WITH THIS THOUGHT I WILL LEAVE YOU TO
PONDER.
ON MY DESK IS A SLIP IN AN ANTITRUST CASE IN THE ELEVENTH
CIRCUIT WHICH SAYS THAT IF DATA BASE IS FLAWED THE EVIDENCE IS
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NOT ADMISSIBLE. IT’S NOT A QUESTION OF WEIGHT, IT’S A QUESTION
10 OF ADMISSIBILITY.
33 I HAVEN’T READ THE CASES THE ELEVENTH CIRCUIT CITES.
12 YOU MAY PONDER THAT AND I“LL SEE YOU ALL TOMORROW
13 MORNING AT 9:30. IF YOU WANT TO COME AROUND. I“LL SHOW YOU THE
14 CASE IM TALKING ABOUT.
13 o-oo
14 (COURT ADJOURNED FOR THE DAY.)