General - Spencer v. Zant Drafts

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 82-8408 

  

JAMES LEE SPENCER, 

Petitioner-Appellant, 

- against - 

WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification 

Center, 

Respondent-Appellee. 

  

On Appeal From The United States District Court 

For The Southern District of Georgia 
Augusta Division 

  

THIRD SUPPLEMENTAL BRIEF FOR PETITIONER- 

APPELLANT ON REHEARING EN BANC 

  

BARRINGTON D. PARKER, JR. 

CLAUDIA J. FLYNN 

MARTIN S. HIMELES, JR. 

415 Madison Avenue 
New York, New York 10017 

EDWARD P. TOLLEY 
304 East Washington Street 

Athens, Georgia 30601 

JACK GREENBERG 

JAMES M. NABRIT, III 

JOHN CHARLES BOGER 

TIMOTHY K. FORD 

89 Hudson Street 

New York, New York 10013 

ANTHONY G. AMSTERDAM 

New York University Law School 
40 Washington Square South 
New York, New York 10012 

TTORNEYS FOR PETITIONER-APPELLANT 

 



  

( 

TABLE OF CONTENTS 
  

  

  

  

  

Page 

Table of Authorities 
PW ER EHR he tA fll eid 

i 

Introduction 
RETR 

TE 2 TNE T LL RR Rd htt 
lien, gh 1 

I. The Data And Analyses That The McCleskey 

Opinion Held Should Have Been Offered Can 

Be Presented In A Hearing On Remand In 

This Case rts 
E INSTA S08 8000849 20990 

2 

A. petitioner Has Offered To GO Beyond 

The Statistical Proof Considered In 

McCleskey To Present Historical : 

Evidence Generally, And In Burke 

County AS well PRR GE SO WT TE 8 TEE TE TC SR A 0 J8 Je tlh id 3 

B. The Processes Of Discovery, Which 

Were Limited in McCleskey, Are Avail- 

able On Remand In This Case To Resolve 

Any Questions About The Accuracy Or 

Reliability Of The Data Compiled By 

professor BaldusS ..cececccscccccnscccces 
6 

C. Petitioner Has Offered TO Present 

statistical Evidence Of Discrimination 

From Other Sources, Using Other Methods, 

Than Those Criticized In McCleskey cee 8 

De petitioner's Proffer Of The Baldus 

study Includes Evidence which Could 

Answer Many Of The Questions Raised 

In The McCleskey Opinion ILSell svssneins 11 

II. Petitioner Spencer's Case Differs From 

McCleskey's In Several Respects Found 

Critical In McCleSkey ecceecceccccoccccocccccce 
14 

  

CONCLUSION r
d 

16, Sods Maid soi + Bi eal ll ut Co 17 

 



  

Table of Authorities 
  

Cases: 
Page: 

Berry v. Cooper, 577 F.2d 322 (5th Cir. 1978) .... 5 

Broadway v. Culpepper, 439 F.2d 1253 (5th 

Cir. 1971) PEPE rea WR ES EE R A EE AE BR bo) 

Columbus Board of Education Vv. Penick, 443 U.S. 449 

(1979) CP EPO BO TED SEEING 
0 6068.09 988 4 

Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975) cue 5 

Gibson v. Zant, 705 F.2d 1543 (llth Cir. 1983) ... 5 

Johnson v. Uncle Ben's, Inc., 628 F.2d 419 

(5th Cir. 1980), vacated 451 U.S. 902, 

modified in part, 657 F.2d 750 (5th Cir. 

1981), cert. denied, 103 S.Ct. 293 {1982) seen 7 

Jones v. Georgia, 389 U.S. 24 (1967) .ececceccocen 5 

Lodge v. Buxton, 639 F.2d 1358 {5th Cir. Unit B 

1981), affirmed sub nom. Rogers v. Lodge, 

458 U.S. 613 (1982) .ceeescsccccccscscscccccscs 5, 16 

Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979) sus 5 

McCleskey v. Zant, No. 84-8176 ...ccocecccccccccns passim 

McCorgquodale v. Balkcom, 705 F.2d 1553 {llth Cir. 

1982), adhered to, 721 F.2d 1493 {(1lth Cir. 

1983) PLB SOPRA BEEBE SEBS PEST S98 9.0'88.0646.0.099 9 

Turner v. Fouche, 396 U.S. 346 (1970) ..... ar a 5 

Washington v. Davis, 426 U.S. 229 (1976) voncesene 4 

Whitus v. Georgia, 385 U.S. 545 £1967) wnnnsiersane 5 

Authority: 
  

Advisory Committee Note to the Rules Governing 

Section 2254 Cases in the United States 

District Court ® © © oo © © © & 0 Oo ® © 8 © © 5 © © © © © 5 © 0 °° 8 0 0 0 7 

- 1 - 

 



  

Introduction 
  

The Court has ordered the decision in this case to be with- 

held pending submission and consideration of McCleskey v. Zant, 
  

  

1 
No. 84-8176,~ a case which raises a similar 1ssue concerning 

racial discrimination in Georgia's capital sentencing system. As 

this Court is aware, in McCleskey another district court granted 
  

an evidentiary hearing on the racial discrimination issue, but 

ultimately resolved it against that petitioner. The evidence 

presented in McCleskey included some of the same evidence peti- 
  

tioner Spencer proffered below in support of his discrimination 

claim: the research findings of Professor David Baldus and his 

colleagues, in the most extensive study ever conducted of the 

administration of the death penalty in Georgia. 

Yet the district court in McCleskey held that the petitioner 
  

had failed to prove his case, because of supposed deficiencies 

both in the data utilized in the Baldus study, and the analyses 

conducted on that data. We believe the McCleskey opinion is 
  

gravely in error, fundamentally misunderstanding the nature of 

statistical proof and misreading the complex and voluminous 

body of evidence before it. We will not attempt here to argue 

McCleskey's case, however; the misconceptions and oversights 

of the McCleskey opinion will be fully detailed in the Cross- 
  

Appellant's Brief in that case. 

  

1/ Spencer v. Zant, No. 82-8408 (llth Cir., March 28, 1984) 

(order withholding decision). 

 



  

If McCleskey is reversed by this Court, that opinion will 
  

clearly control this case, and petitioner will be entitled to a 

remand to attempt to establish that the same impermissible racial 

factors in McCleskey influenced the sentencing decision in his 
  

case as well. Yet the converse does not necessarily follow. 

Even if McCleskey is affirmed, we submit that petitioner Spencer's 
  

case still should be remanded for a hearing on the racial dis- 

crimination claim. For the district court's McCleskey opinion 
  

turns wholly on its view of the facts: data and analyses that the 

court believed were significant, but which it held had not been 

adequately presented; and aspects of McCleskey's own case that, 

in the district court's view, diminished the significance of 

the racial disparities shown there. Even if the district court's 

factual findings and conclusions were correct, and McCleskey 

somehow has failed to prove his case, it does not follow that 

Spencer should be denied the opportunity to prove his. Spencer's 

case differs from McCleskey's in several of the very points the 

McCleskey opinion identifies as significant; and Spencer's 
  

proffer encompasses evidence the McCleskey court did not consider. 

I. THE DATA AND ANALYSES THAT THE McCLESKEY OPINION HELD 

SHOULD HAVE BEEN OFFERED CAN BE PRESENTED IN A HEARING 

ON REMAND IN THIS CASE. 

  

  

The proffer on discrimination made in this case included 

the Baldus study examined in McCleskey. It went beyond that 
  

  study in several important respects, however. See Spencer V. 

Zant, No. 82-8408, First Supplemental Brief for Petitioner- 

Appellant on Rehearing En Banc, at 14-19. As the panel opinion 

 



  

noted, Spencer V. Zant, 715 F.24 1562, 1581-82 (11th Cir. 1983), 

because Professor Baldus' research was incomplete at the time of 

the hearing below, it was proffered in only the most summary form. 

Similarly, because the district court below rejected all evidence 

of discrimination, petitioner had no opportunity to fully set 

forth his evidence, or to meet any objections raised to it. But 

it is clear that a hearing on remand in his case could encompass 

much more than the McCleskey opinion considered. Petitioner's 
  

additional data and analyses could address many of the questions 

the district court there held to have been unanswered. 

Petitioner does not ask this Court to accept such an assertion 

on faith. Though they do not fully spell it out, the records of 

" the cases before this Court establish that such evidence exists, 

and can be presented in this case if the McCleskey opinion were 
  

to be affirmed by this Court. We will briefly outline here, with 

reference to those records, what that additional evidence would be. 

A. petitioner Had Offered To Go Beyond The Statistical Proof 

Considered in McCleskey To Present Historical Evidence 

Generally, and In Burke County AS Well 
  

The crux of the legal analysis in McCleskey was that peti- 
  

tioner's case was based on "cratistics alone." McCleskey Vv. Zant, 
  

No. C81-2434A, slip op. at 11 (N.D. Ga., February 1, 1984) (here- 

inafter "McCleskey Order"). The district court held that, given 
  

a purely statistical case, the petitioner was required to show a 

"disparate impact ... SO strong that the only permissible inference 

is one of intentional discrimination." Id. The proof in McCleskey's 

case was so limited, however, because the district court itself 

had restricted it prior to trial -- holding that general evidence 

 



  

of racial discrimination in the Georgia criminal justice system, 

and in Fulton County, was inadmissible, and outside the scope of 

discovery, because it was "irrelevant." See McCleskey Vv. Zant, 
  

  

supra, Order of June 2, 1983. As a result, at the hearing in 

McCleskey no evidence was presented, as a supplement to the sta- 

  

tistical showing, by way of "historical background,” Washington 
  

v. Davis, 426 U.S. 229, 265-66 (1976), providing nonstatistical 

evidence that the apparent racial discrimination was real, fore- 

seeable, and known. Yet such evidence is plainly admissible to 

support a statistical case of discrimination, and it might make 

a critical difference in a court's ultimate assessment of the 

sufficiency of such a case. Ibid.; see e.g., Columbus Board of 
  

Education v. Penick, 443 U.S. 449, 464-65 (1979). 
  

Nonstatistical evidence was clearly included in the proffer 

in petitioner Spencer's case. Petitioner offered to prove 

below "specific facts evidencing intentional discrimination 

against [him] on the basis of race.” He expressly noted that he 

had contemporaneously asserted a claim of jury discrimination in 

Burke County, and referred to "courtroom practices at the 

time of the trial involving informal segregation." Spencer 

v. Zant, Federal Hearing, January 26, 1981, at 39 (hereinafter 

"Spencer Hrg."):; petitioner's Memorandum of Law in Support of His 

Motion to Alter or Amend the Judgment, at 4. Indeed, the panel 

found that Spencer had made "a colorable claim of discrimination 

in the selection of jurors in Burke County™ in 1975, and noted 

the conclusion in another case that "the 1976 Burke County 

grand and traverse jury lists were unconstitutionally composed 

 



  

with respect to blacks and women." Spencer v. zant, supra, 

715 F.2d at 1567 and n.4. That brief finding, however, only 

  

hints at the pervasive depth of racial prejudice in Burke County 

at the time of Spencer's trial. This Court has elsewhere noted 

the sad facts that, even in the early 1970s, " [t]he vestiges of 

racism encompass[ed] the totality of life in Burke County." 

Lodge v. Buxton, 639 F.2d 1358, 1381 (5th Cir. unit B, 1981), 

aff'd sub nom. Rogers v. Lodge, 458 U.S. 613 (1982). More 
  

generally, racial discrimination permeated much of public life in 

the State of Georgia in the past, its criminal system in partic- 

2 . : ; : co : : : 
ular.?/ Such evidence of historic discrimination 1s plainly 

relevant to petitioner's claim and would be offered on remand in 

  
this case. Yet the McCleskey opinion makes no mention of that 

fact, and the McCleskey record contains no evidence of it. 
  

We do not ask the Court to decide, in this case, whether 

the failure of the district court in McCleskey to consider 
  

that evidence was due to error, or rather to a failure of proof 

by the petitioner there. Whichever it was, the fact remains that 

the petitioner in this case included such evidence in his offer of 

proof, and the court below declined to hear it. That offer must 

be included in the calculus that determines petitioner's right to 

a hearing in this case, whatever the outcome of McCleskey. 
  

  

s/ See, e.g., Turner v. Fouche, 396 U.S. 346 (1970); Jones v. 

Georgia, 389 U.S. 24 (1967); Whitus v. Georgia, 385 U.S. 545 

(1967); Gibson v. Zant, 705 F.2a 1543 {11th Cir. 1983): Berry 

v. Cooper, 577 F.2d 322 (5th Cir. 1978); Foster v. Sparks, 506 

F.2d 805 (5th Cir. 1975); Broadway Vv. Culpepper, 439 F.2d 1253 

  

    

(5th Cir. 1981); Mann v. Cox, 487 F. Supp. 147 {(s.D. Ga. 

1979). 

 



  

B. The Processes of Discovery, which Were Limited In McCleskey, 

Are Available On Remand In This Case To Resolve Any GUEST IRAs 

About the Accuracy or Reliability of The Data Compiled By 

Professor Baldus 
  

One major basis of the decision in McCleskey was the district 
  

court's uncertainty about the accuracy and completeness of the 

data base analyzed by Proffesor Baldus. See McCleskey Order, 
  

25-41. The opinion points out that the Baldus data was not 

derived directly from sources that set out all of the facts of 

which the prosecutors or juries in each individual case might 

have been aware, id. at 26, that there were a few data entries 

that appeared to be incorrect, id. at 34, and that it was impossi- 

ble to determine from the official records consulted whether or 

not some of the variables Baldus included in his study were 

present in all of the cases, ig. at 41. Although the unrebutted 

testimony at the McCleskey hearing was that Baldus carefully a 

observed the most advanced and sophisticated social science 

methods, McCleskey Tr. 1766, and that none of these random imper- 
  

fections biased Baldus' results, the McCleskey opinion nevertheless 
  

concluded from those ostensible deficiencies that the "petitioner 

has failed to establish by a preponderance of the evidence that 

[the data base] ... is essentially trustworthy.” McCleskey 
  

Order, at 41. 

We believe that the district court's conclusion == reached 

in the face of uncontradicted expert testimony that Baldus' data 

gathering methods were accepted and, indeed, "state of the art,” 

(McCleskey Tr. 853), and without any showing that these imperfec- 
  

tions did, or could have, biased Baldus' conclusions -- was 

seriously in error. It is not a petitioner's burden, in a case 

 



  

like this, to show that his evidence is perfect; rather it is the 

respondent's burden to demonstrate "total unacceptability of 

[the] plaintiff's statistical evidence.” Johnson v. Uncle Ben's, 
  

Inc., 628 F.2d. 419, 424 (5th Cir. 1980), vacated, 451 U.S. 902 

(1981), modified in part, 657 F.24 750 (5th Cir. 1981), cert, 
  

denied, 103 s.Ct. 293 (1982). But again, we do not here argue 

McCleskey's case. Even if the district court in McCleskey was 
  

  

right that the petitioner should have shown his data to be rigor- 

ous and accurate beyond the best social science methodology, 

such a standard of proof can be met on remand in this case, by 

use of discovery devices designed to settle unresolved questions 

in the litigation process. 

Petitioner Spencer never obtained discovery on this issue, 

since the district court rejected his discrimination claim as a 

3 ; 
matter of 1aw.3’ Discovery was begun in McCleskey, and 

  

petitioner there requested the State to set forth "all objections, 

criticisms or deficiencies of the data base,” McCleskey v. Zant, 
  

Supra, Petitioner's First Interrogatories, at 4, and to provide 

particular data about individual cases included in the Baldus 

study, id. at 5-6. The district court did not require respondent 

to provide the latter information, however, except by making any 

records it had available to the petitioner for inspection. 

McCleskey Vv. Zant, supra, Order of June 22, 1983. 
  

  

  

3/ Requests for discovery in habeas proceedings "normally 

follow the granting of an evidentiary hearing shen: Advisory 

Committee Note to Rule 6 of the Rules Governing Section 2254 

Cases in the Unitea States District Courts. 

 



  

Although the respondent in McCleskey was required to present its 
  

objections to petitioner's data base, ang ostensibly did so 

through interrogatory answers submitted up to the date of the 

hearing, those few answers that identified specific inaccuracies 

in the data gathered by Professor Baldus were addressed by 

petitioner's testimony at the McCleskey hearing. In those 
  

instances where inaccuracies had been found, changes were made; 

none of them affected Baldus' results. (See McCleskey Tr. 
  

1693-1720.) 

Despite this, the district court in McCleskey rested its 
  

opinion, in part, on the possibility that additional information 

should have been sought to reflect more accurately the "real” 

facts of the cases studied, which were allegedly known to, or 

believed by, the decisionmakers involved. If that proof is 

indeed required, it can be obtained both through depositions and 

through examination of whatever additional state records exist 

that reflect it. Though the process of so doing would be difficult 

and cumbersome -- and though there is no good reason to believe 

it would make any difference in the results -- if that is what is 

needed, it can be done, and should be on the remand of this 

case. 

Ce petitioner Has Offered to Present Statistical Evidence 

Of Discrimination From Other Sources, Using Other Methods, 

Than Those Criticized in McCleskey. 
  

The McCleskey opinion limits its analysis entirely to the 
  

statistical evidence of discrimination presented in the Baldus 

 



  

study. That limitation reflects the restrictions imposed on the 

evidence by the district court. It specifically rejected other 

statistical studies which reached similar conclusions based on 

different data sources, holding them to be "irrelevant" since the 

methodologies they used were not as elaborate and controlled as 

those employed by Professor Baldus. See e.g. McCleskey Tr. 1318- 
  

20. Those excluded studies included the findings of Professors 

Wiliam Bowers and Glen Pierce (McCleskey Tr. 742-45) -- which 
  

were available to and proffered by the petitioner below, Spencer 

Hrg. at 39-40 -- as well as an additional study by Samuel Gross 

and Robert Mauro that refined similar data through analyses more 

elaborate than those Bowers and Pierce used. McCleskey Tr. 
  

1318-20. Though this latter study was not available at the time 

of the district court proceedings below, petitioner informed the 

court that this same kind of work was ongoing, and included it as 

part of his proffer. Spencer Hrg., at 40; Petitioners' Ccnsoli- 

dated Memorandum in Support of Renewed Motions for an Evidentiary 

Hearing (S.D. Ga., January 13, 1981), at 21. 

The district court in McCleskey refused to consider this 
  

evidence. It first noted correctly that the Bowers and Pierce 

study had been held insufficient, standing alone, to establish 

racial discrimination in the Georgia capital sentencing system, 

McCorquodale v. Balkcom, 705 F.24 1553, 1556 (llth Cir. 1982), 
  

adhered to, 721 F.2d 1493 (llth Cir. 1983) (en banc), but jumped 
  

from that fact to the incorrect conclusion that, since these data 

were insufficient alone to prove the case, they were irrelevant. 

(See McCleskey Tr. 742-45.) Because the excluded studies were 
  

  

 



  

admittedly less comprehensive in most respects than Baldus, the 

error in that conclusion might have been harmless. But the 

McCleskey opinion itself made them relevant and essential: for 
  

these studies reached conclusions similar to Baldus', employing 

methods that avoided many of the questions raided by the district 

court in McCleskey. 
  

One of those questions involved the same issue discussed 

apove: the concern that Baldus' data did not directly reflect 

what was known to the police and prosecuting authorities in each 

case. McCleskey Order at 29, 32-44. While the testimony at the 
  

McCleskey hearing showed the sources Professor Baldus used -= 

principally Georgia parole board files -- adequately provided that 

information, McCleskey Tr. at 1341-44, the district court was 
  

correct that the Baldus data was not drawn directly from the 

original police files. But the two other studies offered and 

rejected at the McCleskey hearing were derived from precisely 

that source: FBI Uniform Crime Reporting Supplementary Homicide 

Reports, on homicides known to state police. See McCleskey EX. 
  

RM2 at 20; DB 18 at 591. 

similarly, because the data utilized in these studies came 

from official local sources, certain kinds of potential coding in- 

consistencies the McCleskey court alluded to (McCleskey Order, at 
  

33) should not be a factor influencing the analytic results. For 

a different reason -- because they considered only the relatively 

few variables identified by the FBI as key factors differentiating 

types of homicides -- the supposed "problem" of multicollinearity 

discussed by the McCleskey court, see id., 51-53, is nonexistent 
  

in these studies. 

 



  

Although neither of the studies included the full range of 

careful controls, or the vast amount of information encompassed by 

the Baldus study, they provided imporant confirmation of Baldus' 

findings. Id. at 144-45. 

These other studies, however, remain available for full pre- 

sentation on remand in this case; they were encompassed by the 

general proffer below. Whatever the propriety of the decision to 

reject them in McCleskey, if the opinion there is upheld because 
  

of doubts about the Baldus studies, the alternative analyses 

remain available to dispel them at a hearing in this case. 

D. Petitioner's Proffer of the Baldus Study Includes Evidence 

Which Could Answer Many of the Questions Raised in the 

McCleskey Opinion. 
  

Despite the extensive testimony and evidence in the McCleskey 
  

hearing, the district court's opinion raised a number of questions 

about potential analyses the court thought might be important that 

had not been conducted. Because McCleskey prevailed and was 

granted a new trial on another issue, there was no occasion in his 

case to respond by supplemental proffers of evidence, or additional 

briefing, pointing out to the court where, in the record its 

concerns were addressed. 

Some of those answers are actually contained in the McCleskey 
  

record itself, in exhibits and testimony the district court over- 

looked, or refused to consider. For example, the district court 

suggested (contrary to the expert testimony at the McCleskey hear- 
  

ing) that Baldus' determination to code "unknown" factors as non- 

existent was incorrect, contending that "it would seem that the 

more rational decision would be to treat the 'U' factors as being 

“iid fiw 

 



  

present. This coding decision pervades the data base." Id. at 

35. Yet, in part of the record the district court refused to 

consider -- Professor Baldus summary report == the alternative 

analysis prescribed by the court was, in fact, conducted. See 

McCleskey Ex. DB 113, Appendix I, Schedule 1, esp. Table X (miss- 
  

ing coded 1). The results of this analysis showed that the court's 

alternative coding formula, if followed, made no difference in 

the racial disparities. See also id. at Table X (missing deleted), 
  

fnte. a. A subsidiary analysis within this Schedule answered a 

related question the McCleskey court raised, concerning the treat- 
  

ment of the handful of cases where race was unknown. McCleskey 
  

Order, at 40. That alternative analysis, too, showed the racial 

disparities were unchanged. McCleskey Ex. DB 113, App. I, 
  

Schedule 1, Table X, fnte. a. 

While the McCleskey court insisted that the analytical models 
  

employed by Baldus did not "meet the criterion of having been val- 

idated by someone knowledgeable about the inner workings of the 

decision-making process," McCleskey Order, at 61, it never men- 
  

tioned that Professor Baldus offered to test his discrimination 

hypothesis employing any statistical model that the respondent or 

the court might suggest. McCleskey Tr. 1473-61; 1800-05. More- 
  

over, although respondent declined the offer, the court itself 

did propose such a model -- which Baldus then tested, and found 

to confirm the significant, persistent racial disparities observed 

in his other models. Affidavit of David C. Baldus, dated September 

15, 1983. Yet this model -- the district court's own -- warrants 

no mention at all in the decision rejecting Baldus' results. 

“YD 

 



  

In the same way, the McCleskey decision repeatedly suggests 
  

that there may be factors, or nyariables,"” other than the 500 which 

Baldus included in his study, that might systematically effect 

sentencing outcomes and explain the apparently discriminatory 

results. McCleskey Order, 44-46. Yet neither in discovery nor 
  

at trial did the respondent or the court specifiy a single such 

factor that the Baldus study had omitted; nor does the decision 

itself. Professor Baldus testified that his regressions included 

every factor that he found to have any affect on sentencing outcome 

(McCleskey Tr. 734, 808-09) -- and the respondent's witnesses in 
  

McCleskey identified no important omitted factors, despite hundreds 
  

of hours spent manipulating and analyzing Baldus' data. 

There are admittedly some questions raised by the McCleskey 
  

decision which are not directly answerable from the McCleskey 
  

record itself -- because they were not raised until after the 

hearing. But these questions now posed, can readily be addressed 

by additional analyses == just as were all the similar guestions 

raised by the respondent's pretrial objections in McCleskey, none 
  

of which turned out to make any difference. See e.g., McCleskey 
    

Tr. 1705-20. We strongly question the fairness of these kinds of 

post hoc objections, complaining of a lack of evidence never 
  

suggested during the hearing to be relevant, after the possibility 

of presenting that evidence is past. But that issue will be 

resolved in McCleskey's own case. Whether or not this Court 
  

concludes that this decision was fair, or legally correct, an 

affirmance cannot mean that this petitioner should be denied the 

wo 13m 

 



  

chance to put on what another court has found critically missing. 

As the testimony in the McCleskey case repeatedly demonstrated, 
  

Professor Baldus' data can be subjected to a variety of analyses. 

We believe every reasonable analysis that the respondent or the 

court suggested before or during the hearing in that case has been 

conducted -- and that none contradict the basic, pervasive finding 

of discrimination Professor Baldus made. But if still more analyses 

are needed, they can be presented. Their absence from the McCleskey 
  

record cannot justify a refusal to allow Spencer to present them 

in this case. 

IX. PETITIONER SPENCER'S CASE DIFFERS FROM MCcCLESKEY'S 

IN SEVERAL RESPECTS FOUND CRITICAL IN THE McCLESKEY 

OPINION ITSELF 

  

  

There is a second basic reason that a decision affirming the 

district court's McCleskey opinion could not have controlling 
  

effect in this case: in significant part, the McCleskey opinion 
  

turns on facts peculiar to that case, facts which the district 

court there held would preclude a finding that McCleskey haa 

peen the subject of intentional racial discrimination. Those 

facts included the nature of McCleskey's case, its treatment in 

the Baldus study, and the jurisdiction in which it was tried. 

In each of these respects, Spencer's case aiffers. To the 

extent the McCleskey decision turns on those facts, it cannot 
  

control the issue here. 

The difference between the crimes for which Spencer and 

McCleskey were convicted are important largely because of the 

focus of the district court's McCleskey opinion on the specifics 
  

of that case. While both McCleskey and Spencer are black, and 

Wd ee 

  

 



  

both their victims were white, although both had prior records, 

and both were found to have committed their crimes to avoid 

arrest, the district court's McCleskey opinion focused on other 
  

aspects of that case which the Baldus data showed to be signifi- 

cant to the death sentencing decision, which are not present here. 

McCleskey's crime was found to have been committed in the 

course of a felony; the homicide victim was a police officer. 

McCleskey Order, at 76. That meant, the court noted, that 
  

McCleskey's case included all "three statutory aggravating factors 

which [the Baldus data showed] are most likely to produce the 

death penalty." Ibid. Two of those three factors were absent in 

Spencer's case; they thus cannot similarly explain his sentence. 

  More important, perhaps, in terms of the McCleskey opinion, 

is the fact that the court there found there were errors in 

coding McCleskey's individual case in the Baldus study. McCleskey 
  

Order, at 42. Those "errors" constituted, in part, minor incon- 

sistencies between McCleskey's questionnaire and that of his co- 

defendant, McCleskey Tr. 1113, which were not shown to have had 
  

any effect on the racial disparities found by Professor Baldus. 

Indeed, the district court pointed to only one suppcsed "error" in 

the Baldus analysis of McCleskey's case, which it speculated might 

have affected the showing of "disparity in sentencing rates as a 

function of the race of the victim” in McCleskey's case. McCleskey 
  

order, at 79. (That "error," remarkably, lay in the failure of the 

questionnaire on McCleskey to reflect the testimony of Offie 

“15 - 

 



  

Evans, that McCleskey had "bragged about the killing while in 

jail," id. -- the selfsame testimony by Evans that the McCleskey 

court held elsewhere contained significant "falsehoods" which re- 

quired reversal of McCleskey's conviction. Id., 96-99.) Regard- 

less of the logic or validicy of that criticism, to the extent it 

underlay the finding that McCleskey had not proved his discrimina- 

tion claim, it distinguishes this case. For Spencer has offered 

to show sentencing disparities in cases like his, similar to or 

greater than what McCleskey showed, see id. at 79, Second Supple- 

mental Brief of Petitioner-Appellant on Rehearing En Banc, at 10; 

and no such "errors" have been shown or alleged in Baldus' coding 

of Spencer's own case. 

The McCleskey opinion similarly expresses doubts about the 
  

validity and persuasiveness of Baldus' findings of discrimination, 

as applied to urban areas of Georgia in general, and the Atlanta 

Judicial Circuit, where McCleskey was tried, in particular. 

McCleskey Order, 81, 83-88. As we have noted above, Spencer 
  

was tried in rural Burke County, in a part of Georgia in which 

historical evidence of race discrimination is the strongest. 

Lodge v. Buxton, supra. As the McCleskey court noted, under at 
  

  

least one of Baldus' analyses, racial effects were found to be 

significant in rural areas, but not urban. Id. at 81. Others of 

Saldus' results showed statistically significant racial influences 

when focused solely on purely rural judicial circuits. See 

McCleskey Ex. DB 104. Because those were irrelevant to the issue 
  

15 

  

 



  

in McCleskey, they were not examined by that court; because there 
  

was no reason for the McCleskey evidence to focus on Burke County, 
  

no evidence directed at that jurisdiction was presented in the 

McCleskey hearing. 
  

The evidence would, of course, have relevance to the issue 

in this case. It is enconpassed by Spencer's proffer here. See 

Second Supplemental Brief of Petitioner-Appellant on Rehearing En 

Banc, at 9-10. It is strongly supplemental by the historical evi- 

dence of racial discrimination in Burke County generally, and in 

his case in particular. That evidence, too, remains to be consid- 

ered in Spencer's case, regardless of the outcome of McCleskey. 
  

CONCLUSION 
  

The district court's decision denying a hearing on Spencer's 

claim of racial discrimination should be reversed, and the case 

remanded for a full evidentiary hearing on this issue. 

Dated: April 27, 1984 

Respectfully submitted, 

BARRINGTON D. PARKER, JR. 

CLAUDIA J. FLYNN 

MARTIN S. HIMELES, JR. 

415 Madison Avenue 

New York, New York 10017 

EDWARD P. TOLLEY 

304 East Washington Street 

Athens, Georgia 30601 

JACK GREENBERG 
JAMES M. NABRIT, III 

JOHN CHARLES BOGER 

TIMOTHY K. FORD 

99 Hudson Street 

New York, New York 10013 

 



  

ANTHONY G. AMSTERDAM 

New York University Law School 

40 Washington Sguare South 

New York, New York 10012 

ATTORNEYS FOR PETITIONER-APPELLANT 

  

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the counsel for petitioner= 

appellant James Lee spencer in this action, and that I served the 

annexed Third Supplemental Brief for Petitioner=-Appellant On Re- 

hearing En Banc on respondent-appellee by placing copies in the 

United States mail, first class mail, postage prepaid, addressed 

as follows: 

william B. Hill, Jr., Esq. 

First Assistant Attorney General 

132 State Judicial Building 

40 Capitol Square S.W. 

Atlanta, Georgia 30334 

All parties required to be served have been served. Done 

this 27th day of April, 1984. 

(Wom Crd fy 
  

N\_/  JOEN CHARLES BOGER 

 



  

STATEMENT REGARDING PREFERENCE 
  

This is an appeal from the denial of habeas corpus 

relief sought under 28 U.S.C. S§§ 2241-2254 from the judgment 

of a state court. This appeal should be given preference in 

processing and disposition pursuant to Rule 12 and Appendix 

One (a) (3) of the Rules of the Court. 

nd 
19} Sugplowne-tid 

res   

 



  

STATEMENT REGARDING ORAL ARGUMENT 
  

The Court directed oral argument en banc in its 

order of December 13, 1983. 

 



  

TABLE OF CONTENTS 
  

  

Page 

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .,.... 5 

INTRODUCTION $9 3.9 3 3 90 3% PTO ETT ST PTS VITESSE SYST TID 2 

STATEMENT OF THE CASE 2 2 8S 8 8 9% BS 8 8 2 BS 3 PEST ES PSE SS BR 6 

A. Course of Prior Proceedings «tseevsvssss 6 

1. State Habeas Proceedings .isessssss 6 

2, Federal Habeas Proceedings «sve: 13 

3. The Baldus Studies sssssr3s srr vv 19 

B., Standard of Review sesvrrvsrrsvrrrsrrrrs 22 

SUMMARY OF ARGUMENT ®T 3 8 8 FT FT SS FST PST BT SE SST BE YP RRP SYR EB FTE 22 

STATEMENT OF JURISDICTION 2 $$ 8 8 8 8 8 5S 8 9B ST STP SOS SC PE EB PTR 25 

ARGUMENT IEEE EEE IE Ir I EE TE I IE EE BE JE IE EEE IE IE I IE RE BE I EE IEE J 25 

I. Petitioner Is Entitled Under Townsend 
v. Sain, 372 0.8. 293 (1963), and 28 
U.S.C. § 2254(4d) to An Evidentiary 

Hearing on His Claims of Arbitrariness 
and Racial Discrimination ssecsesssrrrerrens 25 

11. This Court Should Decline to Resolve 
Either the Factual or the Legal Merits 
of Petitioner's Claims on a Barren 
Record 2 8 9 8 9 FB ST FST SPS BT FT EP PT EC BT TET TBE ET BLT ST BP BP BP 32 

111. If This Court Chooses to Reach the 
3roader Legal Issues on the Present 
Record, It Should Hold: (i) That Syste- 

matic Discrimination in Capital Sen- 
tencing Based Upon Either the Race of 
the Defendant or the Race of the Victim 
Violates the Fourteenth Amendment; 
(ii) That Both Arbitrariness Under the 
Eighth Amendment and Intentional Dis- 
crimination Under the Fourteenth Amend- 
ment May Be Proven by Statistical Evi- 

dence; and (iii) That Arbitrary or 
Discriminatory Imposition of Capital 
Statutes Violates the Eighth Amendment .... 35 

(1) 

 



  

CONCLUSION 

APPENDIX A: 

Systematic Discrimination in 
Capital Sentencing Based Upon the 
Race of the Defendant or the Race 

of the Victim Violates the 
Fourteenth Amendment ..vesovev sss ess 009s 36 

1, The Historical Purpose of the 
Amendment $7 994 9 3 3% 3 30 4 3S 09RD 36 

2, Traditional Equal Protection 
Principles THE TE BE NE IE BE RE IE NE BE I BE IE BE BE EE IE EE BE BE ER J 39 

3. Race as an Aggravating 
Circumstance $ 3 8 9 OS FS % OS FB OS ECE ST BS SE PSE OS POSTE 43 

Intentional Discrimination Under 
the Fourteenth Amendment May Be 
Proven by Statistical Evidence ssssss4. fh 

Arbitrary or Discriminatory 
Imposition of Capital Statutes 
Violates the Eighth Amendment ,.:::¢s444 51 

FEE NE IE I I TE I I I I BE IE JE RE NE NE BE BE BE BE NE I BE BE BE I BE BE BE BE BE NE EE NE BE BE J 54 

"Statement of Facts" From 

Petitioner's Post-Hearing 
Memorandum of Law in Support of 
His Claims of Arbitrariness and 
Racial Discrimination, McCleskey 

v. Zant, No, C-81-2434A (N.D, 

Ga., filed September 26, 1983) 

  

(ii) 

 



  

TABLE OF AUTHORITIES 
  

Case 

Adams v. Wainwright, 709 F.2d 1443 (llth Cir, 
1983) PF 8 PT SST SPP PSP CE ES ST OT PTE PTE SE ST PE PSE PEE IGE 

  

Alabama State Federation of Labor v. McAdory, 
325 1.5. 450 (1945) 2 $ 8 9 OC ¢ SS ¢ 9 FP BT ST OS OS OS BT PTS TD BET OBE 

  

Alexander v. Louisiana, 405 U.S. 625 (1972) ..., 
  

Ashwander v. Tennessee Valley Authority, 297 

U.S. 288 (1936) $ $$ 8 2 FF OP ET SF SP BT BT TT BS EST PT SB SE PT SP SOE OS 

  

Ballard v. United States, 329 U.S. 187 (1946) 
  

Borden's Farm Products Co. v. Baldwin, 293 
0.5. 194 (1934) $ 8 FT 8S S$ 9 4 6 9 FT BP ST OE CTS PSE TET BB SC ST SP SB OG B® 

  

Briscoe v. Lahue, 103 8S. Ct. 1108 (1983) +4e¢14> 
  

Brown v. Board of Education, 347 U.S. 483 
(1954) (IE IE BE I I I I I JAE IA INE JOE BNE IE BE BN BE BN BE Bh IE Bh BE BE BB RE BE EE REE EE RE 

  

  

Castaneda v, Partida, 430 U.S. 482 (1977) «s+. 

Chastleton Corp, v. Sinclair, 264 U.S, 543 
(1924) ENE NE BE BE I I I I NE J IE I Bh BE J EE NE DN IEE BE REE BR NE BE IE RE EE EB BE EE 

  

Cleveland Board of Education v. LaFleur, 414 
U.S. 632 (1974) $ 8 8 9% 8 5S PS PSF BT BT B® SS PBR PS PRT CE PO 

  

Coker v. Georgia, 433 U.S. 584 (1977) sss vsrers 
  

Coleman v, Zant, 708 F.24-541 (llth Cir, 1933) 
  

Cuyler v. Sullivan, 446 U.S. 335 (1980) css 
  

Dickerson v. Alabama, 667 F.2d 1364 (llth 
Cir.), cert, denied, 103 S. Ct. 173 (1982) .: 
  

  

F.S. Royster Guano Co, v. Virginia, 253 U.S. 
412 (1920) . HE BE TE NR NE NE NE EE GE ER BE EE BE EE UE BR EE EE Se BE EE BE ER AR SE EE BE i BE BE AE A BE 

  

(111) 

: 

$ 

% 

Page 

21 

34 

50 

33n 

42 

24 

38 

34 

48, 50, 

5n 

24, 33 

40 

51 

26n, 29 

22 

35 

39 

 



  

Page 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

Furman v, Georgia, 408 U.5, 238 (1972) crrrsnssens 29,32, 

36, 50n, 
51, 32 

General Building Contractors Association, Inc. 
v. Pennsvlvania, 458 U.S. 375, 102 Ss, Ct. 
3141 (1982) $ 2% $$ % 8 8 % 8 8S BF OO OSB SC FT BR BT BOSE YP PTR BST EL SBT TT PO ECE 38 

Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 
1978), cert, denied, 439 0.53. 1119 (1979) sassss+ 27n, 28n 

Godfrey v. Georgia, 446 U.S. 420 (1980) ss1s+1++2 25, B51, 
53 

Gomillion v, Lightfoot, 364 U.S. 339 (1960) ,+43+4+ 33n 

Gregqyg v. Georgia, 428 U.5. 153 (1976) +s irrvrrresrss 42, 51, 
82s 53 

Griffin v., Illinois, 351 0.8, 12 (1958) ssersvrasrs» -41n 

Guice v. Fortenberry, 661 F.2d 496 (5th Cir, 
1981) (en banc) 2 $$ 3 8 7% 8% ® 3 9 OP 9 OS B&F & FT SB OS BT CE SP OS TH EN J 26n 

Hernandez v. Texas, 347 U.8. 475 (1954) +ss1s1v1+ 50 

International Brotherhood of Teamsters v. 
United States, 431 U.854+ 324 (1977) ssrsarsnrvasnss 40 

Jackson v, Virginia, 443 0.8. 307 (1979) sis erss 22 

Johnson v. Zerbst, 304 U.8. 458 (1938) wvssrssrres 39 

Jurek v, Estelle, 593 P.24 672 (5th Cir, 
1979), vacated and reaffirmed on other 
grounds en banc, 623 F.2d 929 (5th Cir. 
1930), cert, denied, 450 0.5. 1001, 1014 
(1981) CN NE BE EE BE BE NE BN BE SE BE BE RE BE NE BY RE NE BE BE NN EE UE BE BN EE BE BE Sh Bh NE BE EE BE BE BE BE SE Eh A J 48, 52 

Liverpool, New York, & Philadelphia Steamship 
Co, v. Commissioners of Emigration, 113 U.S. 
33 (1885) § ¢ % 8 SS 9 ¢ % 8 5 % 8 FT ® OS BT BH OC BV OB ET BOL OE OT PD SZ S& % HBS OP BPE 33 

Loving v., Virginia, 388 0.8. 1 (1967) .aressrrssins 36, 43 

Mav v. Anderson, 345 U.S: 528 (1953) ssssrersrsnsy: 39N 
  

(iv) 

 



  

Page 

McCleskey v. Zant, No, C-81-2434A (N.D, Ga:) ¢+¢s+« 5, 5n, 

19, 19n, 
21n, 24, 
31, 34, 
35, 54-55 

  

McGautha v, California, 402 0.84 183 (1971) ,sx23» 41n 
  

Norris v. Alabama, 294 U.8. 587 (1935) sscsvssrrss. 50 
  

Parker v, Los Angeles County, 338 U.S. 327 
(1949) (SE BIE J BE BN BE BE BNE BE I BE NE Nh BE BE EE A BE Nh BE A EE Bh BE NE EE DE A EE BE BE BE EE EE BE BE BE BE EE J 33 

  

Penick v. Columbus Board of Education, 583 
F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 
449 (1979) ® $$ #3 FT PS 2 OS 8 PT BT AE PP SBT SE STS EPS PTET PE SY 

  

Proffitt v. Florida, 228 U.8., 242: (1976) sv srssrvsr Bl, 52 
  

Proffitt v., Wainwright, 685 F.2d 1227 (llth 
Cir. 1982), cert, denied, 52 U.S.L.W. 3423 
(U.S. Nov, 29, 1983) COE NEE I I NE 2 BE RE I NE NE I I NE BE NE NE NE RE BE IE IE NE A 53 

  

  

Reid Vs Covert, 354 DS : 8 {1957) 2 % 2 8 9% PP 2 OT PSP OST OBST OS BFS 41n 

  

Roe V » Wade, 410 U.S. 113 (1973) 2.3393 3.93 9.33395 % 3% 23D 40 
  

Rogers v. Lodge, 458 U.S. 613, 102 8, Ct. 3272 
(1982) A BE OBE OBE NE BE SE UR BR OBE GE BN EE Ne So GE BE Sh Bh BE Sk Bu SR BE UR SE BE Sn BE GE BE Ne Sn Sh Rt Be Sh NE a BE 27n, 45 

  

Rose vi; Mitchell, 443 0,8, 545 (1979) sess rreswen 42 
  

San Antonio Independent School District wv. 
Rodriguez, 411 U.S. 1 (1973) $823 2 2 8 28 PS ELT SDN 33-34 

  

  

Screws v, United Stateg, 325 U.S. 91 (1945) .4:+3+ 39n 
  

Searcy v., Williams, 656 F.2d 1003 (5th Cir, 
1981), aff'd sub nom., Hightower v, Searcy, 
455 U.B% 984 (1982) $ ® $$ $$ ¢ % & 3 3 $$ ¢ 8 ¥ OB OS 5S & % 3 FOS STE OS ST BS 2 45-46 

  

  

Skinner Vv. Oklahoma, 316 U8. : 535 (1942) 2axsrsrs+vr. 40, 41 
  

Smith v. Balkcom, 660 F.24 573 (Sth Cir. 
1981), modified per curiam, 671 F.2d 858 
(53th Cir.), recalled, 677 F.24 20 (5th 
Cir.), cert. denied, 103 8, Ct, A811 (1982). ..+s es 17, 18, 

18n, 20, 
235; 24, 
3in, 32, 
44, 52n 

  

  

  

  

(v) 

 



  

Smith v. Balkcom, No, 5588 (Super. Ct, Butts 
CO., Ga., June 25, 1982) 4 FT PT PT TSE YT SEES PTT PTE TET SP 19n, 31n 

  

Smith Vs Texas, 311 U.S. 128 (1940) $3 99 3 FYISETE NOE 42 
  

Spencer v. Hopper, 243 Ga, 532, 255 S.,E.2d 1, 

cer, denied, 444 U.8, 885 (1979) res vsnnsavese 12 
  

  

Spencer v. Zant, 7135 F.2d 1362 (llth Cir, 1983) .+ 2, 30, 31 
  

Spinkellink v. Wainwright, 578 F.2d 582 (5th 
Cir. 1978), cert, denied, 440 U.S. 976 
(1979) THESE IE BE TE I IE J I TE BE I IE BEE INE NE DEE IN INE NE BNE BEN INE BEE EE IE INE IEE BE BEE DEE DEE BNE NE BEE OE NR IEE I BE J 17, 18, 

  

  

Stanley v. Illinois, 405 U.8. 645 (1972) ..+s1+:++ 40 
  

Stephens v. Kemp, 52 U,S.L.W. (U.S. Dec. 
13, 1983) ? 9 8 TP PT ST TT ST HT BT ST BET BR PT BBE BPP STE PEP ET BED 46n 

  

Stephens v. Kemp, No. 83-8844 (llth Cir, Dec. 
13, 1983) P % 5 ¢ 2B SS PT SS 5 TS PS 6B BS SC SE PP BS OP SOS CT PTE SPT HS ET SF OED 3, 3n 

  

Strauder v, West Virginia, 100 U.S. 303 (1880) ... 41 
  

Thomas v. Zant, 897 F.24 977 411th Cir. 1983) +++ 23, .26n, 
  

  

29 

Townsend Vv. Sain, 372 U.S: 293 {1983) svsvrsrrsves- 14, 23, 
25,29, 
26n, 27, 
27n, 23, 

32 

United States v. Texas Education Agency, 579 
F.2d 910 (5th Cir, 1978), cert, denied, 443 
U.S, 915 (1979) ¢ $$ 9 8 5 * ® 5 8 OB SF STS 8 PT OS ST SBT RTS OBE SEP PT SOF OPE 48, 49 

  

  

United States Department of Agriculture v, 

Moreno, 413 3.5, 528 {1973) tT $$ 2 9% $$ $$ % OS FFT SS ¢ POST BT CST PGCE CTS 39 

  

Village of Arlington Heights v. Metrooolitan 
Housing Development Corpo., 429 U.S, 252 
(1977) $$ % 8 2 8 % 5 8 3 BS OP OS BT BT PS PST PST PT SB PET ETS PPB ST PE 8 PET 27n, 49 

  

  

(vi) 

 



  

In re Wainwright, 678 P.24 951 (llth Cir, 1982) ,. 26n 
  

Washington v. Davis, 426 U.S. 229 (1976) +s233+3++ 42, 47-48 
  

Williams v. Dekalb County, 582 F.2d 2 (5th 
Cir, 1978) (en banc) 2 $$ 32 8 8 0 2 5 SS 5 5 2 TPT PDS ET SBS BT BEY BTS 45 

  

Williams v, Seorgia, 349 U.5: 375 (1935) .,.s9133++ 4ln 
  

Wilshire Oil Co, v. United States, 295 U.S. 
109 (1935) JEL HL ER SR BE EE BE ER DE SO NR BE Bh BE Be Be BN BE 0 a EE Ni ER RE An SR SE UR Ee Se BE SR SE BE SN Sk 33 

  

Yick Wo v, Hopkins, 118 U.5. 356 (1886) .revvsveses. 330,35, 
39n-40n, 

45, 49, 
50n 

  

Zant Vv, Stephens, 456 U.8. 410 (1982) «svsrrrrversev 25, 51, 
54 

  

zant v, Stephens, 103 8S, Ct. 2733 (1983) sess sssss 41ln, 43- 

44, 50n 
  

Statutes 
  

18 U.S.C. § 3006A LE TE I TE I I I BE JN NE EE BE NE NI BE INE NE BE I EE I I 13n 

28 D.8.C. § 2253 EERE EREERE SEES EI EEE EE 25 

28 D.8.0, § 2254 2333.33 89 33.325. 93 55 4 LE NEN 27n 

28 U.S.C. § 2254(4) $2 3 FT 3S PEE A PP ES PE SET PDD ESD 14, 23, 

25,248, 
27,29, 
32 

28 D.8.C+.8 2254(4)(1) ERE JE J I SA IE BE BER I EB I I BE I BE BE 3 26 

28 U.S.C. § 2254(48)(2) 23-303 27 

28 J.8.C. § 2254 (4d) (3) +9 PF SBP PORT ETE ES TT PS NESS 28, 29 

42 JS... § 1981 £ 3 0% 8 8 BB ST ETE EE TE PY STOLE EPS 45 

Federal Rules of Appellate Procedure 
Rule 10(e) $ 8 8 5 8 5 8 8 3 8 8 PPP PS PEST ET 5S BEE SS SS 35 

Rules Governing Section 2254 Cases 
BULLS 7 vorvunnnsss taser ened vr snses eiatinns 35 

(vii) 

 



  

Page 

Other Authorities 
  

Report of the Joint Committee on Reconstruc- 
tion, at the First Session, Thirty-Ninth 
Congress (1866) $ #3 FF OB OS OBR OSE ETS SET BR SE EB PST 4% ST FT BR OFS BOE ECT ODE 37n, 38n 

  

  

  

Bikle, Judicial Determination of Questions of 
Fact Affecting the Constitutional Validity 
of Legislative Action, 38 Harv. L. Rev, 6 
(1942) $8 9 3 8 5 6 8 8 8 8 TTT PI ETE EET TPES SST LTE ET SETS TTD 34 

  

  

  

Bowers & Pierce, "Arbitrariness and Discrimi- 
nation under Post-Furman Capital Statutes,” 
16 Crime & Deling. 563 (1980) TT $$ 8 $$ % OFT PD OB OS SF BP OT EST $0 15 

Darst, Legislative Facts in Constitutional 
Litigation, SuD. Ct, Rev, 75 (1960) .ss2verrevss 34 
  

  

Wolfgang & Riedel, "Race, Judicial Discretion 
and the Death Penalty," 407 Annals 119 
(1973) $8 9 9 9 9 PPT PDE DEE SPT SEB STP OR TTT PRT STE SDN 8 

Wolfgang & Riedel, "Race, Rape and the Death 

Penalty in Georgia," 45 Ma. J. Ortho. 658 
(1975) $ 8 8 9% 2 2 0% 3 8 9 FE 5S PPT PBT SS SP 5 SC 8 POST ET ES CET PT TE SPP SE BT PGCE 8-9 

(viii) 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 82-8408 

  

JAMES LEE SPENCER, 

Petitioner-Appellant, 

~ against - 

WALTER D, ZANT, Superintendent, 
Georgia Diagnostic & Classification 

Center, 

Respondent-Appellee. 

  

On Appeal From The United States District Court 

For The Southern District Of Georgia 

Augusta Division 

  

FIRST SUPPLEMENTAL BRIEF FOR PETITIONER- 

APPELLANT ON REHEARING EN BANC 

  

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 
  

1. Did the District Court err in refusing to order 

an evidentiary hearing on petitioner's claim that the death 

penalty is being imposed in an arbitrary and discriminatory 

manner in the State of Georgia? 

2. Did petitioner's multiple efforts to inform the 

District Court of the inadequacy of the state court record 

and the nature of his evidence on those claims constitute a 

 



  

sufficient proffer to require a hearing or, at a minimum, to 

require further investigation by the Court? 

3, Other claims concerning the composition of the 

jury panel, the adequacy of the trial court's jury charge, 

the standard for determining competence to stand trial and 

the exclusion of jurors, are raised by this appeal. (See 

specifically the Statement of Issues at PP. 1-2 of Petition- 

er's opening sriet.) Petitioner's opening and reply briefs, 

supplemented by his letter to the panel dated March 16, 1983, 

set forth his position on those issues. We believe that each 

of those claims entitles petitioner to relief, and we commend 

our prior submissions to the attention of the Court, 

INTRODUCTION 
  

On September 30, 1983, a panel of this Court held 

that petitioner James Lee Spencer had been deprived of his 

right to a federal hearing on the merits of two constitu- 

tional claims: (i) "that blacks and women were grossly un- 

derrepresented on the jury array from which his jury was se- 

lected," and (ii) "that Georgia administers its death penal- 

ty statute in an arbitrary and discriminatory manner." The 

panel remanded the case to the District Court for an eviden- 

tiary hearing. Spencer v., Zant, 715 F.2d 1562, 1567, :1578 
  

{11th Cir, 1983). 

That disposition was consistent with -- and, indeed 

required by -- well-settled law applicable to habeas peti- 

 



  

tions. The remand did not announce new principles or contra- 

vene prior precedents. The full Court, however, by order 

entered December 13, 1983, vacated the panel's opinion and 

directed rehearing en banc, 

In this first supplemental brief, we will confine 

our presentation to the general question (elsewhere identi- 

fied as significant by several members of the Court): "whe- 

ther a proffer of the Baldus study requires an evidentiary 

hearing, "1! realizing that, as this Court has suggested, the 

"question may very well include consideration of the merits 

of the issue of discriminatory application of the death pen- 

alty and other related issues." Stephens v. Kemp, No. 83- 
  

8844, at 2 (11th Cir. Dec. 13, 1983) (Godbold4, Ch, J,, dis~ 

senting), ? 

At the outset, however, we respectfully urge that 

the evidentiary record in this case -- as it presently stands 

-- is not a satisfactory predicate for determining broad 

constitutional questions about discriminatory application of 

  

1 Stephens v. Kemp, No, 83-8844, at 2 (llth Cir, Dec. 13, 
1983) (Godbold, Ch. J., Johnson, Hatchett, Anderson & 

Clark, JJ., dissenting from denial of suggestion for re- 

hearing en banc); id. at 4 (Xravitch, J., dissenting). 

  

> Petitioner's response to ten specific questions posed by 
this Court will be contained in a second supplemental 
brief to be filed by January 11, 1984, Counsel received 
notification from the Court of its specific interest in 
those questions only shortly before this first supple- 
mental brief was to be filed and could not adequately 
incorporate their answers to those questions into this 
orief by the filing deadline, 

 



  

the death penalty, an issue of consummate significance to the 

administration of justice in this Circuit. Since the eviden- 

tiary hearing that petitioner has sought was denied by the 

District Court and has not occurred, the record does not 

contain the studies and findings of Baldus and his col- 

leagues, nor have those studies been subjected on this record 

to examination, cross-examination, or review and analysis by 

the state's witnesses. 

The relevant facts developed by the Baldus studies, 

though compelling, are necessarily detailed and complex. 

Since legal judgments on questions of such complexity ought 

to be shaped only by a full and clear understanding of actual 

facts, we urge this Court not to determine at this time, as a 

matter of law, such issues as how strong the pattern of 

racial disparity must be in capital sentencing to establish 

cognizable discrimination, whether a persistent pattern of 

random sentencing violates the Eighth Amendment's proscrip- 

tion of arbitrariness, or what the constitutional signifi- 

cance of pervasive race-of-victim discrimination should be. 

Such determinations should be postponed until the parties can 

provide the Court with a complete picture of just how strong 

those patterns of discrimination are in the State of Georgia, 

just how random capital sentencing has become, and how un- 

shakable are the racial disparities, 

 



  

That picture should be available shortly. The 

Baldus studies have recently been the subject of a two-week 

evidentiary hearing, held August 8-19, 1983, in another capi- 

tal habeas proceeding in the United States District Court for 

the Northern District of Georgia, McCleskey v. Zant, No, C- 
  

81-2434A (N.D. Ga. 1983). The substantive constitutional 

claims asserted in McCleskey are virtually identical to those 
  

asserted here. In that case both the State of Georgia and 

the petitioner were afforded ample pre-hearing discovery. 

Interrogatories were served and answered, subpoenas duces 

tecum honored, and opposing experts deposed. At trial the 

parties offered comprehensive testimony from Professor 

Baldus, from his colleagues and from independent experts who 

reviewed Baldus' methodology, analyses, and conclusions, 

After extensive post-hearing briefing, the case was submitted 

on November 14, 1983, and is awaiting decision. 

Since a better record is imminent, we urge this 

Court to remand the present case to the District Court on the 

narrow grounds recognized by the panel, or to hold its con- 

sideration and decision pending an expedited appeal by the 

unsuccessful party in McCleskey v, Zant, Because the Court 
  

  

3 Alternatively, the Court could exercise its authority 

under Rule 10(e) of the Federal Rules of Appellate Pro- 

cedure and Rule 7 of the Rules Governing Section 2254 

Cases to expand the present record on appeal by includ- 

ing the transcript and exhibits in McCleskey v. Zant. 
  

 



  

may not be disposed to that approach, however, we address 

below the questions raised by the Court, 

STATEMENT OF THE CASE 
  

A. Course of Prior Proceedings 
  

l, State Habeas Proceedings 
  

Petitioner commenced state habeas corpus proceed- 

ings in March of 1977. In his first petition he specifically 

alleged that, 

"the death penalty is in fact administered and ap- 

plied arbitrarily, capriciously, and whimsically in 

the State of Georgia,” 

(State Petition § 10A) and that, 

"petitioner's death is being exacted pursuant to a 

pattern and practice of Georgia prosecuting au- 

thorities, courts, juries and Governors to discrim=- 

inate on grounds of race . , » in the administra- 

tion of capital punishment" 

(State Petition 4 12), 

Prior to his state habeas hearing, petitioner filed 

a motion for appointment of experts. He stated that he was 

an indigent and alleged that the cases he cited in Attach- 

ment A, which were 

"the result of a factual investigation petitioner's 

counsel was able to conduct, in the time and with 

the resources available to them, by reading and 

analyzing the appellate cases reported in the 

Georgia reports, establis[h] a prima facie showing 
  

that the death penalty in Georgia is being adminis- 

tered arbitrarily and capriciously. Because of his 

indigence, petitioner is unable to conduct the fur- 

ther investigation which would enable him to estab- 

lish conclusively that the administration of the 

Georgia capital punishment statute violates the 

Eighth Amendment of the Constitution of the United 

 



  

States and that it is discriminatorily imposed 

against black and indigent defendants in violation 

of the Fourteenth Amendment to the United States 

Constitution. Petitioner respectfully submits that 

before he is executed, the Due Process and Equal 

Protection Clauses of the Fourteenth Amendment to 

the Constitution of the United States entitle him 

to the assistance of a state-supported factual 

investigation." 

(Petitioner Spencer's Motion at 1-2) 

At the outset of Spencer's state habeas corpus 

hearing, his counsel sought to address the court on the mo- 

tion, but was instructed instead to begin with his presenta- 

tion of evidence. (St. Hab. Tr. at 24)4 rpollowing the com- 

pletion of that evidence, counsel again addressed the motion: 

"[T]lhis Motion is an attempt to provide this indi- 

gent petitioner with a factual investigation of the 

manner in which the death penalty has actually been 

imposed in Georgia since the enactment of the 1973 

statute," 

"We have presented what we think is a orima facie 

case today in support of the claims in our peti~ 

tion. The Petitioner is indigent . . ., ,» We think 

there is a great deal more factual data which we 

could obtain if we had funds for an adequate inves- 

tigation + + +» + We think that the production of 

this evidence would enable us to establish clai[m] 

10, [arbitrariness, racial discrimination] in a way 

that, simply because of a lack of funds, we are not 

able to now," 

(St, Hab. Tr. at 221-22) (pauses omitted), Petitioner subse- 

quently filed a memorandum of law in support of his request. 

  

4 Each reference to the transcript of the hearing held in 

this case in the Superior Court of Tattnall County on 

May 12, 1977, and duly 13, 1977, will be indicated by 

the abbreviation "St, Hab. Tr." 

 



  

On July 13, 1977, during the second day of hear- 

ings, the state court overruled petitioner's motion: 

"The Court rules that it will not appoint investi- 

gators, nor allow , . » or order that State funds 

be appointed for investigators or for experts and 

for the extent that a continuance is requested in 

that regard for the appointment of experts and for 

experts to do their work, if appointed + + + +" 

(St. Hap, Tr, at 268-69) 

During his state hearing, petitioner produced all 

the evidence available to him in 1977 on those claims: 

(i) the transcript of another capital habeas hearing, in 

which a volunteer expert, Dr. Tobe Johnson, had given brief 

testimony; > and (ii) the testimony of Stephanie Auerbach, 

Dr. Johnson, a professor of political science at Morehouse 

College, explained that although he had himself conducted no 

studies on racial discrimination in capital sentencing in 

Georgia, he had reviewed research studies conducted by other 

social scientists on that issue (Ross St. Hab, Tr. at 111~ 

12), Dr. Johnson testified that he had reviewed two particu- 

larly relevant studies that focused on the State of Georgia: 

one by Marvin E., Wolfgang and Mark Riedel entitled "Race, 

Judicial Discretion and the Death Penalty," 407 Annals 119 

(1973), and the other by Marvin E. Wolfgang and Mark Riedel, 

  

5 That testimony, originally given in the case of Ross Vv. 

Hopper, was admitted as Petitioner's Exhibit 3, Each 

Teference to the transcript of Dr, Johnson's testimony 

will be indicated by the abbreviation "Ross St. Hab. 

Tr.," followed by the number of the page on which the 

reference may be found. 

 



  

"Race, Rape and the Death Penalty in Georgia," 45 Am. J. 

Ortho, 658 (1975) (Ross St, Hab. Tr. at 111-13; Pet, Exhibits 

9 & 10), On the basis of those studies he had formed an 

expert opinion, Neither of those studies, however, involved 

data gathered in Georgia since 1965 (Ross St. Hab. Tr. at 

113). 

Although the court permitted Dr. Johnson to be 

qualified as an expert (Ross St. Hab. Tr. at 125), and +o 

render his expert opinion that "the most significant factor 

and probably the most predictive factor related to the actual 

execution of the death sentence in the State of Georgia is 

the race of the defendant and the race of the victim" (Ross 

St, Hab. Tr. at 141), the court sustained the State's repeat- 

ed objections to testimony by Dr, Johnson concerning the 

findings reported by Wolfgang and Riedel, thereby precluding 

the admission of evidence on the principal factual bases 

underlying Dr. Johnson's opinion. (Ross St, Hab. Tr. at 

134-35; see also id. at 128-31, 135), Moreover, the state 
  

court declined petitioner's offer of proof concerning Dr, 

Johnson's testimony on data presented in the Wolfgang and 

Riedel studies (Ross St. Hab. Tr. at 137). Although the 

state court eventually received those studies, it did so for 

record purposes only, "as exhibits, not as to what is con- 

tained in the exhibits" (Ross St. Hab, Tr, at 140). On 

cross-examination, the State obtained an acknowledgment from 

 



  

Dr. Johnson that his expert opinion could not rest solely on 

the limited data that the state court had permitted into 

evidence,   
In addition to Dr, Johnson's testimony, petitioner 

of fered the volunteer testimony of Stephanie Auerbach, the | 

author of a Georgia Department of Corrections report, nCapi~ | 

tal Punishment in Georgia: An Empirical Study 1943-1965," 

which set forth the case histories of condemned Georgia in- 

mates during the 1943-1965 period whose sentences had been 

commuted and who had eventually been paroled.       
The State objected to the introduction of Ms. 

—
—
_
—
_
—
_
—
 

Auerbach's report, contending that it was inadmissible hear- 

say and that it was irrelevant in part because the study cov- 

ered only cases from 1943 to 1965 (St. Hab. Tr. at 181-82). 

In response, counsel for petitioner stated: 

"Now with respect to the , , . allegation that it 

is outdated, as [co-counsel] stated at the begin- 

ning of the hearing today, we have a Motion for 

Further Research and for Further Study pending in 

this Court, which we will ask the Court to rule 

upon, I couldn't agree more that we need more re- 

search, and that there is more material that we 

could have. This, however, is the one item that we 

do have at the moment, and it does tell us quite a 

bit about what has been the past practice in the 

State of Georgia and [I] think sheds some light at 

least on the subject,” 

(St, Hab. Tr. at 183). With some reluctance the state court 

eventually admitted the Auerbach Report (St. Hab. Tr. at 

 



  

185-86; Pet, Exhibit 7). Ms. Auerbach testified, on the 

basis of her study, that it appeared that: 

"Black persons were having the death sentence ap- 

plied to them with greater frequency and that it 

was being carried out finally against them with 

greater frequency than White persons,” 

(St, Hab. Tr. at 193) 

In its order dismissing the petition, filed 

August 18, 1978, the state court addressed petitioner's arbi- 

trariness and racial discrimination claims under the general 

rubric "the constitutionality of the death penalty." The 

court made no factual findings on the pattern of imposition 

of capital sentences under Georgia's post-Furman capital 

statutes because no evidence had been available and none had 

been presented, 

The court observed that expert testimony from other 

habeas cases had been submitted, but found that "the studies 

conducted by the experts who testified in the case sub 

judice, while covering time frames more recent than those who 

testified in Ross and [John Eldon] Smith, do not furnish evi- 

dence which establishes as fact that the administration of 

the death penalty under the Georgia Statute is not constitu- 

tionally permissible in every respect." (St, Hab. Tr. at 4) 

As its legal conclusion, the state court noted that 

both of the other cases in which similar testimony had been 

 



  

initially offered had been affirmed by the Georgia Supreme 

Court and then held: 

"Testimony of the experts in the cases sub judice, 
added to that of the experts in Ross and Smith, 
cannot be substituted for the legislative voice on 

the subject authorized by the Constitutions of 

Georgia and the United States as interpreted in 
Gregg v. Georgia, supra, and more recently in Coker 

v. Georgia, 433 U.S. _ ." 
  

  

(St. Hab, Tr, at 12) 

On appeal petitioner raised both the denial of 

substantive relief on those claims and the denial of his mo- 

tion for funds. (See Brief for Petitioner-Appellant at 30- 

41). The Supreme Court of Georgia affirmed the lower court's 

order in Spencer v. Hopper, 243 Ga. 532, 255 S.E.,2d 1, cert, 
  

denied, 444 U.S. 885 (1979). Addressing the substantive 

question, the Georgia court held that those claims "have all 

been considered and rejected by this court, or by the United 

States Supreme Court, or both." Spencer v. Hopper, 255 
  

S.E.2d at 5. The court also held that "a defendant has no 

right to receive or spend state funds for the appointment of 

experts or investigators in habeas corpus proceedings, even 

in death penalty cases." Id. at 4. 

 



  

29 Federal Habeas Proceedings 
  

In his federal petition, filed November 10, 1979, 

Spencer alleged arbitrariness and racial discrimination in 

terms virtually identical to those in his state petition 

(Fed. Pet. §Y 16-23; R, 9-11),° 

Following a period of discovery on other issues, 

and after an administrative change of judges, petitioner and 

the State submitted a Joint Status Report to the Court in 

early May 1980, (R. 109-21) In that Report both parties 

identified one disputed issue of fact (whether petitioner had 

challenged the composition of his grand and traverse juries) 

and six disputed issues of law, one of which was the consti- 

tutionality of Georgia's statutory scheme for the imposition 

of the death penalty. (R. 110) Petitioner requested an 

evidentiary hearing on at least four of those issues, includ- 

ing the issue of the arbitrary and discriminatory imposition 

  

6 Within three weeks of filing his federal habeas peti- 

tion, he also filed a motion "for the appointment of ex- 

perts and investigators" (R. 95), which sought, pursuant 

to 18 U.S.C. § 3006A, an order "authorizing the expendi- 

ture by petitioner of reasonable funds . . . to cover 

out-of-pocket travel expenses and reasonable witness 

fees for the following witnesses . . » (ii) Glenn Pierce 

of Northeastern University, a professional sociologist 

and statistician who has studied extensively the pat- 

terns of application of capital sentences in Georgia 

. wv. v:{and} (iil) Dr. David -Baldus of the University of 

Iowa School of Law, a law professor and social scientist 

who is studying Georgia's system of appellate review of 

capital sentences" (R. 95-96). At a brief hearing on 

November 30, 1979, the District Court reserved ruling on 

petitioner's motion for funds (R. 2), ultimately denying 

it on December 29, 1981 (R. 143), 

 



  

of the death penalty. (R., 110-11) The Joint Status Report 

requested that those issues be consolidated for purposes of 

an evidentiary hearing with other death penalty cases then 

currently pending in the Southern District of Georgia. 

{R. 111) | 

On May 27, 1980, petitioner followed the Joint 

Status Report with an extensive memorandum of law in support 

of an evidentiary hearing, outlining the course of state 

habeas proceedings (R. 124-26). He noted that those proceed- 

ings "were characterized by an absence of funds for investi- 

gation, for expert witnesses and for out-of-pocket expenses" 

(R, 124), and explicitly stated that "independent forensic 

and social science research conducted since petitioner's 

state habeas corpus hearing in 1977 makes available to this 

Court significant new findings which bear directly on peti- 

tioner's claims and which were previously unavailable” 

(R., 126). In support of that factual proffer, petitioner 

cited both Townsend v. Sain, 372 U.S. 293 (1963), and 28 
  

U.S.C. § 2254(d) standards (R. 133-34). 

Subsequently, on January 15, 1981, petitioner filed 

an additional memorandum of law, again recounting the inade- 

quacy of state habeas proceedings (R., 225-30) and setting 

forth the legal basis for a hearing (R. 236-38). He also 

made a written proffer of all then-available social scien- 

tific evidence, specifically directing the District Court's 

wi 14 

 



  

attention to the published work of William Bowers and Glenn 

Pierce (R. 231), Petitioner appended to the memorandum a 

prepublication draft of the article, eventually published as 

Bowers & Pierce, "Arbitrariness and Discrimination under 

Post-Furman Capital Statutes," 16 Crime & Deling. 553 (19380). 

During a hearing called by the District Court on 

January 26, 1981, to determine whether or not to hold an evi- 

dentiary hearing, counsel for petitioner outlined in detail 

the grounds on which the state hearing had been inadequate 

(Fed. Tr. at 14-31),7 and explicitly contended that the "fact 

finding procedures employed were not adequate, the material 

facts were not adequately developed, not a full and fair 

hearing, failure to provide financial assistance by the State 

rendering] the defendants incapable of a fair hearing.” 

(Fed. Tr, 17) 1In that proffer counsel contended that "signi- 

ficant social science work has been done by a number of auth- 

orities who have examined the pattern and practice of the 

imposition of capital sentences in the State of Georgia 

[which] . . . was not available in 1977 and was not even 

underway," (Fed. Tr, at 21), and expressly assured the Court 

that there was nothing in the 

"state hearing to suggest there was evidence avail- 
able on the arbitrariness issue or the racial dis- 
crimination issue which was not presented to those 

  

7 Each reference to the transcript of the hearing held in 
the District Court on January 25, 1981, will be indi- 
cated by the abbreviation "Fed, Tr." 

15 

 



  

State Courts. In fact, I will state in my place® 

that there was none. There was no social science 

work underway at that time on those issues.” 

(Fed. Tr. at 25) Counsel also made an offer of proof that 

post-Furman studies of capital sentencing patterns in Georgia 

show racial and geographical arbitrariness, even when factors 

such as the presence or absence of a contemporaneous felony 

or the sex and age of the victim have been statistically con- 

trolled (Fed. Tr. at 33-39). Specifically, petitioner prof- 

fered: 

"[W]e offer to prove that capital sentencing con- 

tinued to be grossly disproportionately imposed 

against black defendants who killed white victims 

[in the post-Furman era]. Indeed, against anyone 

who is an offender, regardless of race, who kills 

white victims or against black offenders, if the 

race of their victim is held constant, 

We OM SE 

"We would also offer to prove that this systematic 

sentencing disparity is not diminished by the ap- 

pellate sentencing review which is required under 

the Georgia statute. We would offer to prove that 

this disproportionate racial sentencing is of an 

extreme magnitude or pervasive over successive 

stages of the judicial process, from arrest for- 

ward:, , +a 

(Fed. Tr. at 38-39) Counsel also directed the Court to the 

Bowers and Pierce article appended to petitioner's January 

1981 memorandum of law, which included numerous statistical 

tables showing racially disparate sentencing patterns in 

Georgia (Fed. Tr, at 39-40). 

  

8 In Georgia, an attorney's statement to a Court "in his 

place" is the equivalent of a sworn statement. 

 



  

The District Court denied petitioner's motion for 

an evidentiary hearing at the close of the January 26 hearing 

(Fed. Tr. at 133-34). In a subsequent written order entered 

April 1, 1982, the Court dismissed the claims. (R. 318-68) 

The Court first stated without elaboration that "[e]xtensive 

findings of fact were made in the courts of Georgia on all 

the issues" (R. 331), and found that "the record actually 

contains facts sufficient to uphold a determination on the 

issues . . . especially in light of precedent which controls 

most of the issues" (R. 332). 

Turning to that precedent —-- chiefly the Fifth 

Circuit's decision in Spinkellink v. Wainwright, 578 P.28 582 
  

(5th Cir. 1978), cert. denied, 440 U.S. 976 (1979), and its 
  

initial opinion in Smith v. Balkcom, 560 ¥.24 573 (5th Cir. 
  

1981) -- the District Court concluded that the arbitrariness 

and racial discrimination "issues have been effectively fore- 

closed to the petitioners by judicial decisions in Gregg Vv. 
  

Georgia, Spinkelink [sic] v. Wainwright, and Smith v. 
  

  

Balkcom" (R. 337). The District Court, noting petitioner's 

proffer of statistical evidence, explained: 

"They would show that sentencing patterns under the 

new statute still reveal glaring disparities in the 

imposition of the death penalty based upon race, 

sex and poverty. This allegation may be true, and, 

if so, would be sad and distressing, but this al- 

legation does not alone show any infirmity in a 

wil7 = 

 



  

statute otherwise found to be acceptable under the 

Constitution.” 

(R. 337). 

Petitioner thereafter filed a timely motion under 

Rule 59 of the Federal Rules of Civil Procedure specifically 

adverting to two important, related developments (R. 380-81). 

The first was the modification, on rehearing, by the Smith v. 
  

Balkcom panel of its original opinion, which had rejected the 

significance of statistical evidence of capital sentencing 

disparities. In its opinion on rehearing the Smith panel 

replaced a crucial paragraph of the original opinion with an 

alternative paragraph clarifying the Court's actual holdings 

in Spinkellink and Smith. The holdings as clarified were 
  

directly contrary to the District Court's interpretation of 

them. 

The second development was the intervening availa- 

bility, for the first time anywhere, of the extensive re- 

search of Professor David Baldus, who in 1979 had undertaken 

two exhaustive studies of the Georgia system. Petitioner 

proffered to the District Court that 

"Dr. Baldus has also completed additional research 

on Georgia's capital sentence patterns, which peti- 

tioner specifically proffers to this Court, that 

reinforces and expands upon the evidence of racial 
  

9 As modified, Smith stated: "In some instances, 

circumstantial or statistical evidence of racially 

disproportionate impact may be so strong that the 

results permit no other inference but that they are the 

oroduct of a racially discriminatory intent or purpose." 

Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982). 
  

 



  

discrimination identified by Bowers and Pierce. 

Dr. Baldus' evidence demonstrates that statistical- 

ly significant racial discrimination is present in 

Georgia's capital sentencing system, based upon the 

race of the defendant and the race of the victim, 

The discrimination persists even when only those 

homicides resulting in murder indictments are exam- 

ined, including that subset of murder indictments 

accompanied by aggravating circumstances. The dis- 

crimination persists even in the subset of those 

cases submitted to a jury at a capital sentencing 

phase. The absence or presence of mitigating 

circumstances in the various cases does not provide 

a sufficient basis rationally to explain the dis- 

crimination found." 

(R. 380-81 n.l) That proffer directly met the evidentiary 

criteria articulated on rehearing by the Smith panel. The 

District Court nevertheless denied petitioner's Rule 59 

motion on May 10, 1982 (R. 387-91), and reiterated its 

reliance on Spinkellink (R. 390-91). 
  

3s The Baldus Studies 
  

The evidence that petitioner proffered in late 

April of 1982 has not yet been published in written form, 10 

It was presented at length during the two-week McCleskey Vv. 
  

Zant hearing in August 1983, at which time petitioner also 

offered over 130 exhibits, many of them complex statistical 

  

10 A twenty-nine page preliminary draft report was filed in 

a state habeas proceeding on behalf of a Georgia capital 

inmate in June 1982. See Smith v. Balkcom, No. 5588 

(Super. Ct. Butts Co,., Ga., June 25, 1982) (Successor 

Petition, Appendix D). A similar preliminary draft was 

filed as part of a Rule 59 motion on June 25, 1982 in 

McCleskey v. Zant, No, C-81-2434A (N.D. Ga.). A more 

extensive draft report was tendered in August 1983 as 

petitioner's Exhibit D 113 in McCleskey Vv. Zant, but was 

  

  

  

refused by the District Court in lieu of live testimony. 

 



  

tables and summaries, We have contended (pp. 32 to 35, 

infra) that this Court should not, on the present record, 

decide the factual merits of petitioner's claims or antici- 

pate and address the constitutional issues that they impli- 

cate. From an outline of the content and scope of that 

prof fered evidence, it is readily apparent that the evidence 

is qualitatively superior to any sentencing study ever done, 

and that it addresses all of the major factual issues that 

this Court has suggested, or implied, might be important in 

proving such claims. tl 

A principal criticism of previous empirical studies 

of capital sentencing was that they left "untouched countless 

racially neutral variables," Smith v. Balkcom, $71 F.24 at 
  

859, including the presence or absence of aggravating Circum- 

stances, mitigating circumstances, possible acquittals or 

reductions to lesser charges. Id, at 860 n.33. This Court 

has expressed skepticism about studies unless "the evidence 

of disparate impact is so strong that the only permissible 

  

11 The 1983 Baldus draft report was provided to Dr. Richard 

Berk, a member of a select panel of the National Academy 

of Sciences, which, during a two-year period, examined 

virtually every major empirical sentencing study ever 

undertaken and formulated criteria for the future con- 

duct of sentencing research. He testified during the 

McCleskey hearing that the Baldus studies are "far and 
  

away the most complete" ever conducted, employing "state 

of the art diagnostics" on data of extremely high 

quality. 

 



  

inference is one of intentional discrimination." Adams Vv. 
  

Wainwright, 709 F.2d 1443, 1449 (11th Cir. 1983). 
  

Petitioner's proffer meets such standards. As the 

annexed Appendix al2 shows, the Baldus studies, employing the 

most careful and sophisticated methodology and drawing the 

data from the State's own files, have uncovered significant 

and persistent racial disparities. For example, if the 

victim is white, the AVeEaTs likelihood of a defendant 

receiving a death sentence increases by 10 points (.10) on a 

scale of 0 to 100. If the defendant is black, the average 

likelihood of a death sentence increases by 7 points (.07), 

also on a scale of 0 to 100. Those statistics are signifi- 

cant at the one-in-one thousand level (p = .001) and one-in- 

one hundred level (p = .01), respectively. Even when, for 

each case, Professor Baldus simultaneously analyzed over 230 

variables relating to statutory and nonstatutory aggravating 

factors, mitigating factors, the facts of the crimes, and the 

strength of the evidence, disparities statistically signifi- 

cant at the one-in-one hundred level (p = .0l) persisted in 

both categories. The race of the victim is as powerful a 

  

12 Appendix A comprises the excerpted Statement of Facts 

from Petitioner's Post-Hearing Memorandum of Law in Sup- 

port of His Claims of Arbitrariness and Racial Discrimi- 

nation, filed September 26, 1983, in McCleskey v. Zant, 
  

C-81-2434A (N.D. Ga.). That statement, prepared from 

lawyers' notes prior to receipt of the transcript, 

though devoid of extensive discussion of Baldus' statis- 

tical evidence, is the only written description of that 

hearing. 

 



  

determinant of sentencing outcome in Georgia as whether the 

defendant had committed a prior capital felony, whether a 

criminal offense was committed contemporaneously with the 

homicide, or whether the victim was a police officer. 

The Baldus studies, in sum, provide a thorough, 

comprehensive portrait of Georgia's capital sentencing 

system, and display strong and persistent evidence of linger- 

ing racial discrimination. Before this Court determines 

whether those facts establish a violation of the federal 

constitution, it should permit petitioner to make a full 

record in the District Court, and this Court should then 

evaluate his claims on the basis of that record. 

B. Standard of Review 
  

Each of petitioner's federal claims requires the 

Court to interpret or apply federal statutory provisions gov- 

erning habeas corpus procedures and/or to reassess independ- 

ently the application of federal constitutional principles to 

record facts. See, e.qg., Cuyler v. Sullivan, 446 U.S. 335, 
  

341-42 (1980); Jackson v. Virginia, 443 U.S. 307, 318 (1979), 
  

SUMMARY OF ARGUMENT 
  

Petitioner was unable to develop evidence in sup- 

port of his federal constitutional claims that the death 

penalty in Georgia is being administered in an arbitrary and 

discriminatory pattern during state habeas proceedings in 

1977. That failure was not due to procedural default or to 

 



  

the deliberate bypass of state proceedings. Rather, it 

stemmed from petitioner's lack of funds, the absence of any 

independent resources, the refusal of the state habeas courts 

to provide any experts or financial assistance, and the fact 

that the most compelling independent evidence was not then 

available. Since 1977, however, material evidence directly 

responsive to the Court's evidentiary criteria outlined in 

Smith v. Balkcom, 671 F.2d 858 (5th Cir, 1982) (on rehear- 
  

ing), has become available, Petitioner proffered that evi- 

dence to the District Court as soon as it was known. Under 

the standards enunciated in Townsend v. Sain, 372 U.S. 293 
  

(1963), and 28 U.S.C. § 2254(d4), the District Court was obli- 

gated to afford him an evidentiary hearing, especially since 

the state courts had resolved those claims without careful or 

extensive factual findings and under a serious misapprehen- 

sion of the applicable constitutional principles. 

Moreover, had there been serious doubts about 

whether petitioner might have been able to present that evi- 

dence at an earlier time absent inexcusable neglect, the 

District Court should have explored those doubts at a sepa- 

rate hearing. See Thomas v. Zant, 697 F.2d 977 (11th Cir. 
  

1983), Petitioner's case should now be remanded under 

Townsend and Thomas for a full evidentiary hearing. 
  

If the Court is disposed to address the broader 

factual or legal questions posed by petitioner's constitu- 

Wd Le 

 



  

tional claims, it should do so only after a full factual 

record is properly before it for review. Difficult constitu- 

tional issues arising on a complex factual background ought 

not be resolved until the relevant facts have been clearly 

presented, Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-49 
  

(1924), especially "if there is a reasonable likelihood that 

the production of evidence will make the answer to the [con- 

stitutional] questions clearer," Borden's Farm Products Co. 
  

v. Baldwin, 293 U.S. 194, 213 (1934) (Stone and Cardozo, JJ., 
  

concurring opinion). If the Court does not immediately 

remand this case for an evidentiary hearing, it should defer 

any decision until resolution of McCleskey v. Zant, No. C- 
  

81-2434A (N,D, Ga.), the only case in which the relevant 

facts have been developed on a full record. 

If the Court is, however, disposed to address the 

legal merits of petitioner's claims, it should hold that in- 

tentional discrimination in the imposition of capital sen- 

tences based upon the race of the defendant or the race of 

the victim violates the Egual Protection Clause of the Four- 

teenth Amendment. Moreover, the Court should reaffirm its 

prior holdings in Smith v. Balkcom, 671 F.2d 858 (5th Cir, 
  

1982) (on rehearing), that statistical evidence of disparate 

racial treatment can suffice to establish a violation of both 

the Eighth and Fourteenth Amendments and of the Equal Protec- 

tion Clause. Finally, it should modify the panel holding of 

FA 

  

  

 



  

the Fifth Circuit in Spinkellink v. Wainwright, 578 F.2d 582 
  

(5th Cir. 1978), cert. denied, 440 U.S. 976 (1979), and 
  

recognize, in light of Furman v. Georgia, 408 U.S. 238 
  

(1972), Godfrey v., Georgia, 446 U.S. 420 (1980), and Zant v. 
  

Stephens, 456 U.S. 410, 413 (1982), that a capital statute 
  

that, in practice, permits the capricious imposition of the 

death penalty violates the Eighth Amendment. 

STATEMENT OF JURISDICTION 
  

This appeal is taken from an order and judgment 

entered on April 1, 1983, in the United States District Court 

for the Southern District of Georgia, Augusta Division. The 

District Court granted a certificate of probable cause on 

July 1, 1982. Jurisdiction of this Court lies pursuant to 28 

0.8.C, § 2253. 

I 

PETITIONER IS ENTITLED UNDER TOWNSEND V. SAIN, 

372 U.S. 293 (1963), AND 28 U.S.C. § 2254(4), 

TO AN EVIDENTIARY HEARING ON HIS CLAIMS OF 

ARBITRARINESS AND RACIAL DISCRIMINATION 

  

  

Whether a federal court must hold an evidentiary 

hearing in federal habeas corpus proceedings is governed by 

Townsend v. Sain, 372 U.S. 293 (1963), as subsequently codi- 
  

fied, in large part, by 28 U.S.C. § 2254(4d). In Townsend Vv. 
  

Sain, the Supreme Court held that, 

"a federal court must grant an evidentiary hearing 

to a habeas applicant under the following circum- 

stances: If (1) the merits of the factual dispute 

were not resolved in the state hearing; (2) the 

state factual determination is not fairly supported 

“on. 

 



  

by the record as a whole; (3) the fact-finding pro- 

cedure employed by the state court was not adequate 

to afford a full and fair hearing; (4) there is a 

substantial allegation of newly discovered evi- 

dence; (5) the material facts were not adequately 

developed at the state-court hearing; or (6) for 

any reason it appears that the state trier of fact 

did not afford the habeas applicant a full and fair 

fact hearing.” 

Townsend v. Sain, 372 U.S. at 313 (the numbered standards are 
  

  

hereinafter referred to as "Townsend #_").13 

On this record, petitioner's claims of systemwide 

arbitrariness and racial discrimination in the application of 

Georgia's capital statute meet virtually every branch of the 

Townsend and § 2254(d) standards. 
  

The factual merits of petitioner's claims were not, 

and could not realistically have been, "resolved in the state 

hearing" in 1977, see Townsend # (1); 28 U.S.C. § 2254(4){1), 
  

since petitioner lacked the resources at that time to bring 

the relevant facts before the state courts, Petitioner him- 

self identified that problem at the outset of his state hear- 

ing and formally moved for funds to gather the very evidence 

necessary to resolve his claims. When the state court 

declined his motion, petitioner made a good faith effort to 

present all of the evidence at his disposal. The state 

  

13 This Court has faithfully followed the teachings of 

Townsend in its own subsequent decisions. See, e.9.., 

Guice v. Fortenberry, 661 F.2d 496 (5th Cir, 1981) (en 

banc); Thomas v. Zant, 697 F.2d 977 (11th Cir. 1983); 

Coleman v., Zant, 703 F.2d 54) (11th Cir, 1383); cf. £ 

re Wainwright, 678 F.2d 951 (llth Cir. 1982). HH 

  

  

  

  

  

  

WT A 

 



court, however, observing that the three studies proffered by 

petitioner related to the pre-Furman period in Georgia, found 

them irrelevant, Thus no body of facts on the application of 

Georgia's capital statutes in the post-Furman period was ever 

considered by the state court, l4 

Petitioner has also shown that state fact-finding 

procedures were "not adequate to afford a full and fair hear- 

ing," see Townsend # (3); 28 U.S.C. § 2254(d) (2), since he, 
  

though an indigent, was denied funds to develop the evidence 

necessary to prove his claims. The proper inquiry under this 

branch of Townsend and § 2254(d) is, of course, not whether 
  

the State proceedings are blameworthy or constitutionally 

inadequate, but only whether they were "adequate to afford a 

full . . . hearing" in the case before the federal court, 1d 

  

14 As a legal matter, we believe that evidence of pre-Furman 

discrimination is clearly relevant to petitioner's claims, 

because it demonstrates a pattern of prior behavior that can 

shed useful light on present conduct, See, e.9., Rogers v. 
Lodge, 458 U.S. 613, 102 S. Ct. 3272 (1982); Village of 
Arlington Heights v. Metropolitan Housing Development Corp., 
429 U.S. 252, 266-68 (1977). However, we readily acknowledge 

that pre-Furman studies alone cannot be dispositive of claims 
of discrimination or arbitrariness under Georgia's revised 

statutes, 

  

  

  

For example, in Gibson v. Jackson, 578 F.2d 1045 (5th 
Cir. 1978), cert, denied, 439: 0.8, 1119 (1979), the 
Fifth Circuit abstained from deciding whether the 
Constitution requires financial assistance to an 
indigent capital inmate in state habeas proceedings. 
However, citing Townsend v, Sain, Judge Rubin noted 
that, as a federal statutory matter under 28 U.S.C. 
§ 2254, "[i]f the failure to provide counsel or other 

assistance results in less than a full and fair state 
(footnote continued) 

  

  

  

   



  

Because petitioner was unable to bring forward the critical 

evidence on his claims and the State chose not to assist him, 

it is clear that the procedures were not adequate to ensure a 

full hearing. 

Perhaps the most clearly applicable of the Townsend 
  

and § 2254(d) standards are those requiring a hearing when- 

ever there is a "substantial allegation of newly discovered 

evidence," Townsend # (4), or when "the material facts were 
  

not adequately developed at the state-court hearing,” 

Townsend $ (5); 28 U.S.C. § 2254 (d) (3). Here, there is more 
  

than a "substantial allegation" of new evidence: no post- 

Furman evidence was available to petitioner at all in 1977, 

Yet, now there exist two comprehensive, meticulous studies 

that have already been the subject of a two-week federal 

evidentiary hearing in another Georgia case. 

The new evidence is, furthermore, "newly discov- 

ered" within any fair sense of that term. The data comes 

from the file of State -- the Georgia Department of Offender 

Rehabilitation, the Georgia Board of Pardons and Paroles, and 

the Georgia Supreme Court -- which were not then, and are not 

now, generally available, Professor Baldus was first given 

access to those files, as a social science researcher, in 

  

(footnote continued from previous page) 
court proceeding, petitioner will be entitled to an 
evidentiary hearing de novo in federal court" Gibson v. 
Jackson, 578 F.2d at 1052 (Rubin, J., addendum). 

  

IG 

 



  

1979, two years after completion of petitioner's state habeas 

proceedings. 

Even if petitioner had somehow been able to gain 

access to these closed files, access alone would have been 

useless to him in proving his claims without the hundreds of 

thousands of dollars necessary to read through each file on 

each case, extract from those files several hundred items of 

data for each case, compile and transform that data into com- 

puter-readable form, and perform the complex and extensive 

computer analyses that alone could render it probative as 

evidence, In short, the evidence in 1977 was not only una- 

vailable to petitioner, it did not exist in its present usa- 

ble form at all. Only several years of time and effort by 

Professor Baldus and his colleagues, working independently of 

petitioner, transformed state records, drawn from three sep- 

arate sources, into the studies petitioner now stands ready 

to present to the courts. 

To evalute whether the material facts were "ade- 

quately developed" under Townsend # 5 and § 2254(4) (3), pe- 
  

titioner must show that a fact was material and "that failure 

to develop that material fact at the state proceeding was not 

attributable to petitioner's inexcusable neglect or deliber- 

ate bypass." Thomas v. Zant, 697 P.24 977, 986 (llth Cir, 
  

1983); accord Coleman v, Zant, 708 F.2d at 545-48, 
  

 



  

The "materiality" of petitioner's evidence is read- 

ily apparent, since the facts proffered here constitute the 

only statistical evidence of how Georgia has been applying 

its statutes since Furman. If such statistical evidence is 

probative of petitioner's claims (see Point IX1(b), infra), 

then this massive body of evidence is surely "crucial to a 

fair, rounded development of the material facts." 

Furthermore, there has been no serious indication 

that petitioner was "inexcusably neglectful" in failing to 

adduce that proof in 1977, much less that he deliberately 

bypassed the opportunity to do so. As we have shown, the 

evidence was beyond the means of petitioner in 1977. He 

nevertheless timely asserted the underlying constitutional 

claims, called the state court's attention to the need for 

further factual investigation, and sought necessary as- 

sistance for that task, a request that was refused. The 

panel accurately observed that, 

"any suggestion of strategic default is flatly con- 

tradicted by the fact that Dr. Baldus had not even 

begun to gather his data until after Spencer's 
state habeas proceedings had run their course 
«iv ss Other than his failure to obtain Dr. 
Baldus's data at an earlier time, the district 
court pointed to no other evidence to suggest 

deliberate bypass. The district court acknowledged 

as much in its discussion. 538 F. Supp. at 89 

n.10. Therefore, we conclude that the record does 

not support a finding of deliberate bypass.” 

Spencer Vv. Zant, 715 F.2d at 1580. The state has never 
  

seriously argued to the contrary. 

 



  

Nor has there been any suggestion that Professor 

Baldus' work was not brought to the District Court's atten- 

tion at the earliest opportunity. His studies, as the panel 

noted, were, in April 1982, "not then available except by 

live testimony." Spencer v, Zant, 715 F.2d at 1582. Those 
  

studies had not been mentioned or proffered in any other 

forum -- federal or state —-- prior to petitioner's proffer of 

them to the District Court in late April 1982,16 

Nevertheless, the District Court, guided by a nar- 

row or misinformed view of Spinkellink v. Wainwright, held 
  

that even if petitioner's evidence "would show that sentenc- 

ing patterns under the new statute still reveal glaring dis- 

parities in the imposition of the death penalty based upon 

race . . .» [such an allegation, though] sad and distressing, 

[would] . . . not alone show any infirmity in a statute 

otherwise found to be acceptable under the Constitution.” 

  

16 As indicated earlier, the most preliminary written 

report concerning the Baldus findings was not filed in 

any Court until June 1982, Smith v. Balkcom, No. 5588 

(Super. Ct. Butts Co., Ga,, June 25, 1982), and 

McCleskey v. Zant, No, C-81-2434A (N.,D. Ga.) (Supplement 

to Rule 59 motion filed June 25, 1982). 

  

  

The specific proffer made by petitioner in this case, 

however, informed the District Court that the Baldus 
data would control for the very factors -- aggravating 

circumstances, mitigating circumstances, stage of the 

criminal justice process -- that this Court had identi- 
fied as important in Smith v, Balkcom, in its opinion on 
rehearing. In his proffer petitioner explicitly di- 

rected the District Court to Smith, which had been de- 

cided less than one month earlier, 

  

- BY iw 

  

 



  

Unaided by this Court's clarifying opinion on rehearing in 

Smith (which was announced only two days before its own opin- 

ion), the District Court foreclosed petitioner's right to a 

hearing as a matter of law. The panel, recognizing that 

Spinkellink did not control the ultimate issue, applied 
  

well-established Townsend and § 2254(d) principles in direct- 
  

ing that petitioner's hearing should take place. The full 

Court should now adopt that course and permit petitioner an 

opportunity to prove nis federal claims. 

II 

THIS COURT SHOULD DECLINE TO RESOLVE 

EITHER THE FACTUAL OR THE LEGAL MERITS 
OF PETITIONER'S CLAIMS ON A BARREN RECORD 
  

A remand to the District Court for an evidentiary 

hearing is not only appropriate under Townsend v. Sain and 
  

§ 2254(d); it will provide this Court with the only adequate 

foundation upon which eventually to resolve the substance of 

petitioner's constitutional claims. The present record con- 

tains no statistical evidence, and little other substantial 

evidence, to indicate how Georgia has applied its capital 

statutes since 1973. Whether, as petitioner has alleged, 

those statutes continue to operate in a discriminatory pat- 

tern, as did the statutes struck down in Furman v. Georgia, 
  

408 U.S, 238 (1972), has thus yet to be examined in the nec- 

essary adversary context, The Court should not prematurely 

grapple with difficult constitutional questions and make 

~'33 - 

 



  

binding legal pronouncements until the evidentiary context in 

which they arise has become clear,l” 

Two important principles counsel this approach. 

The first is that courts ought "not to entertain constitu- 

tional questions in advance of the strictest necessity." 

Parker v. Los Angeles County, 338 U.S. 327, 333 (1949); 
  

  

accord Wilshire 0il Co. v. United States, 295 U.S. 100 

(1935); Liverpool, New York & Philadelphia Steamship Co, v. 
  

Commissioners of Emigration, 113 U.S, 33, 39 (1885). 
  

The second is that "the facts [relevant to both the 

interpretation and the application of constitutional guaran- 

tees] should be accurately ascertained and carefully weighed" 

before the constitutional issues are finally determined. 

Chastleton Corp, Vv. Sinclair, 264 U.S. 543, 549 (1924). 
  

Expert testimony and empirical data have played a significant 

part in the development of constitutional law, see, 2.g9., San 
  

  

17 "The fact that it would be convenient for the parties 

and the public to have [a legal question] promptly de- 

cided," Justice Brandeis cautioned, cannot justify a 

federal court in reaching out prematurely to determine 

it. Ashwander v. Tennessee Valley Authority, 297 U.S. 

288, 345 (1936) (Brandeis, J., concurring). Gomillion 
v. Lightfoot, 354 U.S, 339 (1960), for example, was not 

decided solely on abstract Fourteenth Amendment princi- 
ples, but on the Court's encounter with an "uncouth, 

twenty-eight-sided figure," id. at 340, that constituted 

the legislatively redrawn boundaries of Tuskegee, Ala- 

bama. Likewise, the constitutional holding in Yick Wo 

v. Hopkins, 118 U.S. 356 (1886), was the child of a 

Court familiar not only with equal protection principles 

but with statistical details on selective enforcement of 

San Francisco's law governing laundry construction 

standards. 

  

  

  

  

33% 

 



  

Antonio Independent School District v. Rodriguez, 411 U.S. 1, 
  

23-25 (1973); Brown v. Board of Education, 347 U.S. 483, 484 
  

n.ll (1954); Alabama State Federation of Labor v. McAdory, 
  

325 U.S. 450, 460-461 (1945). Yet "[jludges make constitu- 

tional law as they make other kinds of law, on the basis of 

facts proved and assumed. They are likely to do a better job 

when their assumptions rest on information rather than 

hunch." Darst, Legislative Facts in Constitutional Litiga- 
  

tion, Sup. Ct. Rev, 75 (1960); see also Bikle, Judicial 
    

Determination of Questions of Fact Affecting the Constitu- 
  

tional Validity of Legislative Action, 38 Harv. L. Rev, 6 
  

(1942). 

In this case, where the factual evidence is exten- 

sive and sophisticated, where there is little by way of com- 

parable prior evidence or legal precedent to guide the 

Court's judgment, where the operation of Georgia's capital 

system as a whole may be implicated, and, where, as a prac- 

tical matter, an adequate factual foundation has already been 

developed in another capital case soon to come before the 

Court, the temptation to address the broader factual or legal 

issues now, on the present record, should be avoided. 

If the Court wishes to use this case to resolve 

those broader issues, it could readily do so by deferring 

decision until the District Court rules in McCleskey v., Zant, 
  

and by consolidating the inevitable appeal in that case with 

- 34. 

 



  

Spencer. Alternatively, the Court could obtain a factual 

record on which to base its deliberations by expanding peti- 

tioner's record on appeal, pursuant to Rule 7 of the Rules 

Governing Section 2254 Cases and Rule 10(e) of the Federal 

Rules of Appellate Procedure, see, €.9., Dickerson v. 
  

Alabama, 667 F.2d 1364, 1367 (llth Cir.), cert. denied, 103 
  

S. Ct. 173 (1982), to include the transcript and exhibits 

from McCleskey v. Zant. Although deferral is by far prefer- 
  

able to expansion of the record under Rule 10(e), either of 

these alternative courses would constitute, we submit, a far 

better approach than reaching constitutional issues on the 

basis of the present record. 

111 

IF THIS COURT CHOOSES TO REACH THE BROADER LEGAL 
ISSUES ON THE PRESENT RECORD, IT SHOULD HOLD: 
(i) THAT SYSTEMATIC DISCRIMINATION IN CAPITAL SEN- 
TENCING BASED UPON EITHER THE RACE OF THE DEFENDANT 
OR THE RACE OF THE VICTIM VIOLATES THE FOURTEENTH 
AMENDMENT; (ii) THAT BOTH ARBITRARINESS (NDER THE 
EIGHTH AMENDMENT AND INTENTIONAL DISCRIMINATION 
UNDER THE FOURTEENTH AMENDMENT MAY BE PROVEN BY 
STATISTICAL EVIDENCE; AND (iii) THAT ARBITRARY OR 
DISCRIMINATORY IMPOSITION OF CAPITAL STATUTES 
VIOLATES THE EIGHTH AMENDMENT 
  

Because the Court has indicated that it may con- 

sider the merits of petitioner's constitutional claims, we 

will briefly set forth our position on several of the most 

important issues. 

 



  

A. Systematic Discrimination in Capital 
Sentencing Based Upon the Race of the 
Defendant or the Race of the Victim 
Violates the Fourteenth Amendment 
  

The unequal enforcement of criminal statutes based 

on the race of the defendant violates the Fourteenth Amend- 

ment, because such distinctions would have "no legitimate 

overriding purpose independent of invidious racial discrimi- 

nation , . . [justifying the] classification,” Loving v. 
  

Virginia, 388 U.S. 1, 11 (1967); Yick Wo v. Hopkins, 118 U.S. 
  

  

355 (1886); cf. Furman v. Georgia, 408 U.S. 238, 242-57 
  

(1972) (Douglas, J. concurring). 

Petitioner has proffered evidence establishing that 

‘the application of Georgia's capital statutes have resulted 

in inequality in Georgia's treatment of black offenders, 

More compelling, however, is the proffered evidence of 

capital decisionmaking with a different focus: the race of 

the victim, Discrimination based upon the victim's race, 

similar to discrimination based on the defendant's race, 

violates the Equal Protection Clause, under at least three 

different lines of Fourteenth Amendment authority. 

1s The Historical Purpose of the Amendment 
  

The language and legislative history of the Equal 

Protection Clause show that its framers specifically intended 

it to prohibit the unequal administration of state criminal 

laws based upon the race of the victim. Indeed, the text of 

“30 

 



the clause providing "nor shall any state deprive any person 

within its jurisdiction of the Equal Protection of the law," 

speaks more directly to the imposition of criminal sanctions 

than to any other form of discrimination, 

The framers of the Fourteenth Amendment unquestion- 

ably intended to proscribe differential punishment based on 

the race of the victim. Prior to the Civil War, statutes 

regularly punished crimes less severely when the victim was a  



  

relevant to the sentencing process, such as for 
example the race, religion, or political affilia- 
tion of the defendant. . . . If the aggravating 
circumstance at issue in this case had been invalid 
for reasons such as these, due process of law 

should require that the jury's decision to impose 

death be set aside. 

103 Ss. Ct, at 2747. Yet, in a real sense, that is precisely 

what the State of Georgia has authorized and what the prof- 

fered evidence shows Georgia juries and prosecutors have in 

practice done: "attached the aggravating label" to the race 

of the defendant and of the victim. 

On all three of the above-stated grounds, evidence 

of discrimination based on the race of the defendants and the 

race of the victim, if proven, would establish a violation of 

the Fourteenth Amendment. 

B. Intentional Discrimination Under 
The Fourteenth Amendment May Be 
Proven By Statistical Evidence 
  

This Circuit has previously held that an equal pro- 

tection challenge to the administration of capital sentencing 

statutes may be supported by statistical evidence of dispro- 

portionate impact that gives rise to the inference of dis- 

criminatory intent on the part of decisionmakers. See Smith 
  

v., Balkcom, 671 F.2d at 868. The holding in Smith is fully 
  

consistent with equal protection law in other areas: 

[D]iscriminatory intent need not be proven by di- 
rect evidence, "Wecessarily, an invidious dis- 
criminatory purpose may often be inferred from the 
totality of the relevant facts, including the fact, 
if it is true, that the law bears more heavily on 
one race than another," [Citing Washington v. 

  

- AN 

 



  

Davis, 426 U.S. 229 (1976)]. Thus determining the 

existence of discriminatory purpose "demands a sen- 

sitive inquiry into such circumstantial and direct 

evidence of intent as may be available." [Citing 
Village of Arlington Heights v, Metropolitan 
Housing Authority, 429 U.S. 252 (1977).] 
  

  

Rogers v. Lodge, 102 S. Ct. 3272, 3276 (1982). 
  

Cases in which race is not an overt criterion, but 

in which the record leaves race as the only plausible expla- 

nation for the demonstrated inequities, nearly always turn on 

circumstantial proof, See, e.g., Williams v. Dekalb County, 
  

582 F.2d 2, 3 (5th Cir. 1978) (en banc) (statistics may be 

used to prove discrimination under 42 U.S.C. § 1981, which 

requires same burden of proof as the Fourteenth Amendment). 

That principle has been recognized since Yick Wo v. Hopkins, 
  

118 U.S. 356 (1886), when the Supreme Court found discrimina- 

tion on the basis of statistical proof. This Court held in 

Searcy v. Williams, 656 F.2d 1003 (5th Cir. 1981), aff'd sub 
  

  

nom., Hightower v. Searcy, 455 U.S. 984 (19282): 
  

Turner v. Fouche, [396 U.S. 345 (1970)] and Yick Wo 
v. Hopkins, [118 U,S. 356 (1886)] represent a line 
of cases in which statutes challenged as unconsti- 
tutional are constitutional in apparent purpose, 
but utilized in a manner to discriminate against a 
certain segment of the population. See L. Tribe, 
American Constitutional Law, Section 16-18, p. 1028 
(1978). In these cases the fatal discriminatory 
purpose is inferred from the overwhelmingly con- 
vincing statistical evidence of unexplained dis- 
parity. See also Castaneda v. Partida, 430 U.S. 
482 , , . (1977). The challenged application of 
the statute often involves discretion or subjective 
criteria utilized at a crucial point in the 
decision-making process. For example, in Yick Wo 
v. Hopkins the board of supervisors exercised 
absolute discretion in granting exceptions, and the 
jury commission in Turner v, Fouche applied sub- 

  

  

  

  

  

  

jective criteria to create the jury list from which 

 



  

grand jury members were chosen, These cases, al- 
though not entirely on point with the present case, 
are relevant to our inquiry because the statute in 
the present case, based on overwhelming convincing 
statistics, has been discriminatorily applied 

* » Rd * 

656 F.2d at 1007-08 (footnote omitted); see also Internation- 
  

al Brotherhood of Teamsters v. United States, 431 U.S. 324, 
  

339-40 (1977) ("statistical analyses have served and will 

continue to serve an important role" in cases in which the 

existence of purposeful discrimination is at issue). Those 

principles, of course, remain the law, 22 

  

22 In his dissenting opinion in Stephens v. Kemp, No. A-455 
(U.S. Dec, 13, 1983) (order in pending case), Justice 
Powell noted that 

  

if the Baldus study is similar to the several 
studies filed with us in the Sullivan case, the 
statistics in studies of this kind dating as far 
back as 1948 are merely general statistical surveys 
that are hardly particularized with respect to any 
alleged 'intentional' racial discrimination. Sure- 
ly no contention can be made that the entire Geor- 
gia judicial system, at all levels, operates to 
discriminate in all cases. Arguments to this ef- 
fect may have been directed to the type of statutes 
addressed in Furman v. Georgia, 408 U.S. 238 

(1972). As our subsequent cases make clear, such 
arguments cannot be taken seriously under statutes 

approved in Gregg. 

  

  

  

Id., slip op. at 6 n.2 (Powell, J., dissenting). 

We do not read Justice Powell in Stephens to controvert 
the numerous prior holdings of the Supreme Court that 

statistics may be used to provide proof of intentional 
discrimination, but rather to express his impression 
that the Baldus studies had not been profferred for the 
purpose of proving intent. That is precisely the pur- 

(footnote continued) 

  

- 46 - 

 



  

The Supreme Court has readily applied that analy- 

sis, for example, in the jury cases, another area in which a 

showing of discriminatory impact is the only practical -- 

indeed usually the only possible -- evidentiary means of 

demonstrating an equal protection violation: | 

It is also clear from the cases dealing with racial 

discrimination in the selection of juries that the 

systematic exclusion of Negroes is itself such an 

"unequal application of the law . . . as to show 

intentional discrimination," [citation omit- 
ted]. + +. ». It is also not infrequently true that 

the discriminatory impact -- in the jury cases for 

example, the total or seriously disproportionate 

exclusion of Negroes from jury venires -- may for 

all practical purposes demonstrate unconstitution- 

ality because in various circumstances the discrim- 

ination is very difficult to explain on nonracial 

grounds. 

Washington v. Davis, 426 U.S. 229, 241-42 (1976). 
  

Inquiry into the results arising from a statute's 

operation is critical, especially where the governmental 

action involves complex processes, in which numerous influ- 

ences are at work. Thus, 

[fl requently the most probative evidence of intent 
will be objective evidence of what actually hap- 
pened rather than evidence describing the subjec- 
tive state of the mind of the actor. For normally 
the actor is presumed to have intended the conse- 

quences of his deeds. This is particularly true in 

the case of governmental action which is frequently 
  

(footnote continued from previous page) 
pose, however, for which petitioner Spencer proffers 
those studies as part of his Equal Protection claim in 

thise case. Justice Powell's initial skepticism that 
Georgia's post-Furman statutes could work to permit such 

a result does not, of course, preclude petitioner, armed 

with the Baldus studies, from offering substantive evi- 

dence to the contrary. 

 



  

the product of compromise, of collective decision- 

making, and of mixed emotion. 

Washington v. Davis, 426 U.S, at 253 (Stevens, J., concur- 
  

ring). As the Court asserted in assessing an equal protec- 

tion challenge to school board procedures analogous to peti- 

tioner's challenge here: "The most effective way to deter- 

mine whether a body intended to discriminate is to look at 

what it has done." United States v. Texas Education Agency, 
  

579 F.2d 910, 914 (5th Cir. 1978), cert. denied, 443 U.S. 915 
  

(1979). 

The role of circumstantial evidence -- such as 

statistical proof -- is particularly crucial in cases such as 

this that involve a multitude of decision-makers. In such 

cases the evidence need not identify an intentional discrimi- 

natory act or malevolent actor. See Jurek v. Estelle, 593 
  

F.2d 672, 685 n.26 (5th Cir. 1979), vacated and reaffirmed on 
  

other grounds, 623 F.2d 929 (5th Cir. 1980) (en banc), cert. 
  

denied, 450 U.S. 1001 (1981); United States v. Texas 
  

Education Agency, 579 F.2d 910, 913-14 & nn.5-7 (5th Cir, 
  

1978), cert. denied, 443 U.S. 915 1979. 
  

The presence of numerous decisionmakers in the jury 

cases and the school board cases has appropriately triggered 

judicial reliance upon circumstantial evidence as the most 

appropriate proof of discriminatory intent. Castaneda v, 
  

Partida, 430 U.S. 482 (1977) (jury selection); Penick v. 
  

- 48 = 

 



  

Columbus Board of Education, 583 F.2d 787 (6th Cir, 1978), 
  

aff'd, 443 U.S. 449 (1979) (school desegregation); United 

States v. Texas Education Agency, 579 F.2d 910 (5th Cir, 
  

1978), cert, denied, 443 U.S. 915 (1979) (school 
  

desegregation). 

The reliance upon statistical evidence for a show- 

ing of "discriminatory intent" turns on the discretionary 

nature of the governmental procedures at work. In Yick Wo, 

the Supreme Court emphasized that the ordinance at issue 

there 

confer[red], not a discretion to be exercised upon 
a consideration of the circumstances of each case, 
but a naked and arbitrary power to give or withhold 

consent . . . as to persons. , . ,» The power given 

[to the decisionmakers] is not confided to their 
discretion in the legal sense of that term, but is 
granted to their mere will. It is purely arbi- 
trary, and acknowledges neither guidance nor 

restraint. 

Yick Wo v. Hopkins, 118 U.S. at 366-67. Equal protection 
  

violations based on statistical showings, which fall short of 

the extreme pattern demonstrated in Yick Wo, were condemned 

in the jury cases precisely "[blecause of the nature of the 

jury-selection task," Village of Arlington Heights v. Metro- 
  

politan Housing Development Corn., 429 U.S. at 266 n,13 
  

(1977). That task rests on a subjective process that 

presents at every juncture "the opportunity to discriminate” 

such that "whether or not it was the conscious decision on 

the part of any individual jury commissioner," the courts 

AD - 

 



  

have been confident, when presented with a showing of dispar- 

ate impact, in concluding that "[t]he result bespeaks dis- 

crimination.” Alexander v. Louisiana, 405 U.S. 625, 632 
  

(1972); see also Hernandez v, Texas, 347 U.S. 475, 482 
  

(1954); Norris v. Alabama, 294 U.S. 587, 591 (1935). "[A] 
  

selection procedure that is susceptible of abuse or is not 

racially neutral supports the presumption of discrimination 

raised by the statistical showing," Castaneda v. Partida, 430 
  

U.S. 482, 494 (1977) (citing Washington v, Davis, 426 U,S. at 
  

241), 

Since the sentencing system in Georgia involves a 

multitude of decisionmakers, each with substantial discre- 

tion23 and each involved in a governmental process that has 

the severest impact on individual life and liberty, the 

required prima facie showing of discriminatory intent is 
  

satisfied by significant statistical disparities resulting 

  

23 Petitioner recognizes that the Supreme Court in Zant v, 
Stephens, 103 S. Ct. 2733 (1983), held that the discre- 
tion permitted by the Georgia death penalty statutes did 
not render them unconstitutional on their face under 
Furman v. Georgia, 4908 U.S. 238 (1972). But that clear- 
ly does not mean that the substantial discretion granted 
by those statutes to prosecutors and to juries is ir- 
relevant to the discrimination claim here. The Court, 
in Castaneda v, Partida, 430 U.S, 482 (1977), similarly 
noted that "[tlhe facial constitutionality of the key- 
man system, of course, has been accepted by this 
Court. +. +» . Revertheless, the Court , vv » noted that 

the system is susceptible to abuse as applied," 430 U.S. 
at 497, and held that its discretionary nature supported 
a finding of discrimination, id. at 494; see also Yick 
Wo. v. Hopkins, 113 U.S. 356 (1835), 

  

  

  

  

  

- BO - 

 



  

from the discretionary process. That is precisely the 

evidence petitioner has proffered. 

C. Arbitrary or Discriminatory Imposition of 
Capital Statutes Violates the Eighth Amendment 
  

The fundamental teaching of Furman v., Georgia, 408 
  

U.S. 238 (1972) -- which struck down, not simply the death 

sentence of William Henry Furman but the capital statutes of 

Georgia, Texas, and, by implication, all other states -- was 

that "the Eighth and Fourteenth Amendments cannot tolerate 

the infliction of a sentence of death under legal systems 

that permit this unique penalty to be . . . wantonly and 

. + +» freakishly imposed," Furman v. Georgia, 408 U.S. at 310 
  

(Stewart, J., concurring). That teaching has been consist- 

ently adhered to by the Supreme Court in its subsequent 

capital decisions. See, e.g., Zant v. Stephens, 456 U.S, 
  

410, 413 (1982); Godfrey v. Georgia, 446 U.S. 420, 427 
  

(1939); Coker v,., Georgia, 433 U.S. 584, 593-37 (1977): Gre 
  

  

In 1978, however, the Fifth Circuit, in Spinkellink 
  

v. Wainwright, 578 F.2d at 599-505, read the Supreme Court's 
  

opinion in Proffitt v. Florida, 428 U.S. 242 (1976), to 
  

preclude, as a matter of law, any Eighth Amendment challenge 

to Florida's application of its capital statutes. "If a 

state has . . . a properly drawn statute," the Spinkellink 
  

panel reasoned, "then the arbitrariness and capriciousness 

 



  

condemned in Furman have been conclusively removed." Id. at 

605,24 

Yet there is no constitutional logic that could 

forbid capital procedures because of their likelihood to pro- 

duce a particular result, unless the result itself is forbid- 

den by the Constitution. And if the result of arbitrary and 

discriminatory infliction of the death penalty is forbidden 

by the Eighth and Fourteenth Amendments -- as Furman, Gregg, 
  

  

Proffitt and Jurek all declared -- then there can be no logic 

at all in denying petitioner the opportunity to prove that 

the revised procedures employed in Georgia, however well- 

intentioned, are actually producing that result. The exis- 

tence of the statutory procedures that the Supreme Court 

sustained "[o]ln their face" in Gregg cannot support such a 

refusal to hear relevant evidence, for as Mr, Justice White 

oointedly observed in Furman: 

[l1l]egislative 'policy' is . . . necessarily defined 
not by what is legislatively authorized but by what 
juries and judges do in exercising the discretion 

. « +» conferred upon them," 

Furman v. Georgia, 408 U.S. at 314 (White, J., concurring). 
  

Spinkellink, we respectfully suggest, is unsup- 
  

ported by reason or precedent, Subsequent decisions of the 

  

24 The Court strongly implied in Spinkellink, see 578 F.2d 

at 612-16, and has subsequently made clear, that chal- 

lenges under the Equal Protection Clause of the Four- 
teenth Amendment are not similarly foreclosed as a mat- 
ter of law, See, e.,9., Smith v, Balkcom, 560 PFP.2d4 573 
{5th Cir. 1981), 

  

  

- 52 - 

 



  

Supreme Court have confirmed that Eighth Amendment challenges 

to the application of capital statutes cannot be foreclosed. 

In Godfrey v. Georgia, for example, the Supreme Court struck 
  

down, on Eighth Amendment grounds, a misapplication of a 

facially valid capital statute. 446 U.S. 420 (1980). 

Justice Stewart, writing for the Court, explicitly stated 

that "if a State wishes to authorize capital punishment it 

has a constitutional responsibility to tailor and apply its 
  

law in a manner that avoids the arbitrary and capricious 

infliction of the death penalty." Godfrey v. Georgia, 446 
  

U.S. at 428 (emphasis added). Accordingly, the Godfrey Court 

examined Georgia's application of a statutory aggravating 

circumstance, (b)(7), that the Supreme Court had specifically 

upheld against a facial attack in Gregg, see Gregg Vv. 
  

Georgia, 428 U.S. at 201, in order to determine whether that 

aggravating circumstance had been misapplied in Godfrey's 

case. Concluding that it had been, the Court vacated 

Godfrey's death sentence, This Court has subsequently ack- 

nowledged that, "[i]ln view of Godfrey, we can only conclude 

that the language in the Spinkellink opinion precluding 
  

federal courts from reviewing state courts' applications of 

capital sentencing criteria is no longer sound." Proffitt v, 
  

Wainwright, 685 P.24 1227, 1262 n.52 (llth Cir. 1982), cert, 
  

denied, 52 U.8S.L.W, 3423 (U.S. Nov. 29, 19383), 

- BY, 

 



  

In Zant v. Stephens, 456 U.S. 410, 413 (1982), the 
  

Supreme Court made even more explicit its understanding "that 

the constitutionality of Georgia death sentences ultimately 

would depend on the Georgia Supreme Court's construing the 

statute and reviewing capital sentences consistently with 

this concern." Under Stephens, if Georgia's statutes, though 
  

facially valid, prove not to be applied in practice "consis- 

tently with [Eighth Amendment] concerns," they are subject to 

constitutional challenge. 

It is just such a challenge that petitioner has 

posed in the present case, based upon the comprehensive 

portrait of the Georgia system afforded by the Baldus 

studies, Whatever questions must subsequently be addressed 

about the degree of arbitrariness that can be tolerated under 

the Eighth Amendment, allegations of arbitrariness raise an 

Eighth Amendment claim. 

CONCLUSION 
  

The Court should either (i) remand this case to the 

District Court for an evidentiary hearing on petitioner's 

claims of jury discrimination and of the arbitrary and ra- 

cially discriminatory imposition of the death penalty in 

Georgia or, alternatively, (ii) hold this appeal pending de- 

cision by the United States District Court for the Worthern 

District of Georgia in McCleskey v. Zant, No. C-81-2434A 
  

 



  

(N.D. Ga.) and, upon the entry of judgment in McCleskey, for 
  

consolidation of any appeal in that case with this appeal. 

Dated: December 27, 1983 

   
Respectfully submitted, 

Und fe 
BARRINGTON D. PARKER, JR. 

: DIA J, FLYNN 
MARTIN S. HIMELES, JR. 

415 Madison Avenue 
New York, New York 10017 

  

EDWARD P, TOLLEY 
304 East Washington Street 
Athens, Georgia 30601 

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 

99 Hudson Street 
New York, New York 10013 

ANTHONY G., AMSTERDAM 
New York University Law School 

40 Washington Square South 

New York, New York 10012 

ATTORNEYS FOR PETITIONER-APPELLANT 

- BB i. 

 



  

Appendix A 
  

"Statement of Facts" from Petitioner's Post-Hearing Memoran- 

dum of Law in Support of His Claim of Arbitrariness and 

Racial Discrimination, filed September 26, 1983 in McCleskey 
  

Ve Zant, No. C-81-2434A (N.D. Gae) 

 



  

4 

On 

MASTaL i 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 82-8408 

  

JAMES LEE SPENCER, 

Petitioner~Appellant, 

- against - 

WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification 

Center, 

Respondent-Appellee, 

  

Appeal From The United States District Court 

For The Southern District of Georgia 

Augusta Division 

  

SECOND SUPPLEMENTAL BRIEF FCR PETITIONER- 

APPELLANT ON REHEARING EN BANC 

  

BARRINGTON D. PARKER, JR» 

CLAUDIA J. FLYNN 

MARTIN S, HIMELES, JR. 

415 Madiscn Avenue 

New York, New York 10017 

EDWARD P, TOLLEY 

304 Rast Washington Street 

Athens, Georgia 30601 

JACK GREENBERG 
JAMES M. NABRITT, III 

JOHN CHARLES BCGER 

99 Hudson Street 
New York, New York 10013 

ANTHONY G. AMSTERDAM 
Mew York University Law Scheol- 

40 Washington Square South 

Hew Zork, New York 10012 

 



  

TABLE OF CONTENTS 
  

QUESTIONS Page 
  

F OHESLION ']L aessrrsrsivseverisvnrissvrasrvervssensves 3 

QUESLLION 2 saver rrsrwrasrrvrsrraresasvsvsvasvasssans 6 

DUASEION 3 assrrssrrrrnsssvsrnsssvassnsrvsrssrrserne 3 

QUBSLION 4 Lavassvrsssnsrvssnnvsnasssrsnvrrsrirseves 10 

QUESLION 5 sis srsrrssssssrvessvsssssvsvsssrsssnsvenrer 14 

OUERELON 6 visas renssrrrresrsssssssrrrnrsssrenvenses 17 

QUASEIONIT snes ssinsdsnsrsnssmnssnssasssessrssrs vars 19 

BTLION B ssnsrrsvesrvsnvarasssssssssrsasunssssenss 23 

OAs ion 3 sii r svar errs viinsssrs rrr rsa reeves OF 

OHBELION 10. sors snes vsasnssarasssssvrsnssrvsessrane 28 

CONCLUSION "EEE EEEREEEREEEIEIE IEEE IEE EE EERE EE EE EEE NE NE EE EE EE IE EE NE NE EE EE EE EE AE EE BE EE EE 34 

  

 



  

TABLE OF AUTHORITIES 

Cases 

Bel v. Hall, 392 PF. Supp. 274 (D, Mass, 1975) +3333 31 
  

Blackledge v., Allison, 431 U.S, 63 (1977) ssss233333> 4n 
  

California v. Ramos, 103 S. Ct, 3446 (1983) +a2s33233+> 21 
  

Castaneda v. Partida, 430 U.S. 482 (1977) sassasssssrss 3, 18 
  

Corn Vv, 2ant, 708 F.24 549 (11th Cit. 1933) a2s3svr32 13 
  

Coleman v. Zant, 708 P.24 341 (11th Cir, 1983) +s3s33 2, 3, 4 
  

Crawford v. Roard of Education, 458 U,S. 527, 

102 Sa iy vic 3211 (1982) P? 9 9 PPP OY PS PY DDI PEDDIE RD 20, 21 

  

Dothard v. Rawlinson, 433 U.S: 321 (1977) ssasssssrrs 13 
  

Eastland v. Tennessee Valley Authority, 704 

Fad 623 {11th Cir, 1983) ® 3% 99 OYE PD PED I DYER YIDD 15 

  

Fetelle iv, Gamble, 420 Us8, 9741076) sscssssrravesss. 3%, 31In 
  

Fay Vs Noia, 372 U.S» 391 (1953) 2 393 3933939 19 
  

Furman v. Georgia, 408 U.8., 238 (1972) (per 

curiam) "TE EEEEEEEEE EEE IE IEEE NE IEEE EE IE EE EE I BE EE NE EE BE BE BE EE BE BE BE BR 5% y 17, 18 

221 23,29, 
30,232, 33, 

34 

  

Gardner v. Florida, 430 U.S. 349 (1977) sassssserssass lL, 32 
  

- Gates v, Collier, 501 2.24 1291 (5th Cir, 1974) .,..5» 31 
  

General Building Contractors Association v. 
Pennsylvania, 4538 U.8. 375, 102 8. Ct, 
3141 (1982) 2 9 3% 3D PIP OSPY PY SDEY DVS IY RP ERD SDI 24 

  

  

Godfrey v. Georgia, 446 U.S. 420 (1980) asav333s33333s ¥1,:12, 1183, 
32 

  

Gregg v. Georgia, 428 U.S, 153 (1978) sasssssrasssass 31, 12,711, 
21-22, 30 

  

id - 

 



  

Hazelwood School District v, United States, 

433 Da.» 299 (1977) PPP PETITIVE DIY Y DY PYIDYIEEIYDD 5-6, 13 
  

International 3rotherhood of Teamsters v, 

® United States, 431 UsSs 324 1877) EE NE BE BB BE BE BE BE BE BE BR BE 54 13 
  

  

Lewis v. United States, 445 U.S. 55 (1980) sssvasssss 9 
  

Louisiana ex rel. Francis v. Resweber, 329 

US» 459 (1947) I EEE EEEEEEEIEI IEEE IEEE EE EE EE EE EE EE EEE EE NE EE EE EE NE EE 33 

  

7 Loving v. Virginia, 388 U.8., 1 (1987) sassvsssrnnsens 24 
  

McClesky Va Zant, NO, C-81-2434A {N.D, Ga, ) 2 39 3 FTP : 35 

  

McLaughlin v., Florida, 379 U,S. 184 (1964) .323v333343 24 
  

Mitchell v, Hopper, 538 7, Supp 77 (S.D. Ga. 1982) .. 7,8 
  

Moore v. Balkcom, 7186 P,24 1511 (11th Cir, 1983) ss+» 22, 27 
  

Moore (Carzell) v. Zant, No, 82-8683 (11th 

Cir, Dec, 20, 1983) » 9% 999 OTST SPP VP DVDR VY DERI 27 

  

Mutual Fund Investors, Inc. v., Putnam Manage- 
ment CO. 553 F,23 520 (9th Cire 1977) ssssvrsrar 4n 
  

  

Newman v. Alabama, 503 P.24 1320 (5th Cir. 1974) 

cert, denied, 421 U.8. 948 (1975) ssrs22v91 34 
  

  

Newman v, Wainwright, 464 P.24 615 (5th Cir, 1972) .. 19 
  

Pace Vv, Alabama, 106 U.S5. 583 (1833) s44ss3ssr2svs33s 24 
  

Personnel Administrator v. Feeney, 442 U.S, 

" 255 (1979) ®» 9 9 99 O99 OP YP SOE SSPE RDP NEP DEDEDE 19, 29, 30 

  

Plyer v. Doe, 437 U.8. 202, 102 8. Ct. 2382 

) (1982) CIEE BE IE RE NE Ok NE IE I Bh Bh Fh Nh Bh BE RE NE BE NE NE Eh BE Bh IE NE NE BE BE BE EE NE BE EE BE EE EE EE BE J 20 

  

Proffitt v. Wainwright, 635 FP.24 1227 (llth Cir, 
1982), cert. denied, 52 1TJ,S.,L.W., 3423 (U.S. Nov. 
23, 1983) Y » 9 9% 9 O%P OP 3 PDS OZ YDS POON 18 

  

  

Rhodes v, Chapman, 452 U.8+:337 (1981) ssssrsrsvsrvs 30 
  

Rogers v, Lodge, 458 (3,8, 813, 102 8, Ct, 3272 

(1982) 2 9 9 93 O39 IYI OY DSS DPD E DY IE PEE VEY SYP Y IIIS 16, 29 

  

-1ii 

 



  

  

  

  

  

    

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

Rose v, Mitchell, 443 U.S. 545 (1979) sass3303vssvss 23, 24 

ROSS v, Hooper, 716 P.24 1528 (11th Cir, 1983) sans 3, 86 

Rozecki v. Gaughan, 459 P.24 6 (lst Cir. 1972) sss3» 31 

Searcy v., Williams, 656 F.2d 1003, aff'd sub 

nom. Hightower v, Searcy, 455 U.S, 984 

(1932) EEE EEEEEEEREEEIE IIE ITE IEEE EE IEEE EE EE EEE EE EE EE EE EE EE NEE EE BE EJ 5 

) Smith v., Balkcom, 671 F.2d 858 (5th Cir.) (per 

Y curiam), mandate recalled, 677 F.2d 20 

{5th Cir.), cert, denied, 103 8S, Ct. 131 : 

(1982), EEE EREEREE IEEE IEEE IE EEE EE EEE EE EE EE EE NE EE EE EE NE NE EE EE EE SE EE J Zr 13, 28 

Spain v, Procunier, 600 PFP.24 1839 (9th Cir, 

1979) JO TE RS RE Bh A Th ak 2% Th Ne BE oe 28 BR BN Gk oh get BE BN i SA I I Sh dh Li 31 

Spinkellink v. Wainwright, 578 F.2d 582 (5th 
Cir. 1978), cert, denied, 440 0.5. 975 

(1979) IEE ERE EERIE IEEE IE IE EEE EE EE EE EE IEEE EE EE EE EE EE IE EE EE EE EE EE EE 12, 3, 17, 

13, 23 

Tavilior v, Louisiana, 419 U.S, 5322 {1975) sssrvansreys 23 

Thomas Vv, Zant, 597 PF.24 977 (11th Cir, 1933) swerrs 25. 2% 3, 4, 
5,8, 2),:23 

26, 28,33 

Townsend v, Sain, 372 U.8. 293 (13583) sssssssrevsavs Yr 2, 2n,:3, 

4d, 4n,:5 

Turner v, Fouche, 396 U,5. 346 (1970) +ss3r2v2ssvess 11in 

United States v, Hobby, 702 F.24 4068 (4th 

is Cir.), Cert, arantsd, 52 U.3.L.W, 3460 
{U+5, Dec, 12, 1933) (No, 82-2140) 399 YPDINN DIN STEDPD 24 

- United States v. Perez-Hzasrnandez, 672 F,2d 

1380 {llth Cir. 1932) ? 2 9% OP POV PY PRD EYED DD PEN 23 

United States v. Texas Educational Agency, 579 
F.2d 910 (5th Cir. 1973), cart, denied, 

443 DeSs 915 (1379) 3 2% % 9 OY ¥ POY RSP SOP ODRYVOPY DY VP OVD 29 

Village of Arlington Heights v. Metrooolitan 
: Housing Development Corp,, 429 UJ,S. 252 

{1977} IIE IE EE IE EE IE PE RE BE PE Bn I In I I I I I INE TER Ih INE JER Jn INE BEE JN DEE BNE INE IE IER JER NR INE IEE IER BR I J 209, 29, 33 

- in ow 

 



  

Washington v. Davis, 426 U.S, 229 (1976) sassssrssss 20, 21 
  

Whitus V » Georgia, 385 C+S» 545 (1967) 23 VIII 1l1ln 
  

  

  

  

  

  

  

. Wilkins v., University of Houston, 654 F.2d 388 

{5th Cir, 1981), vacated, 103 S, Ct, 34 
(1982) ssssrsssssssrsssssssvsssssssssssssssssaa 14, 15, 16 

; Wiltlls v, Zant, 720 F.24 1212 (11th Cir, 1983) wes» 6 

Woodson v. North Carolina, 428 U.S. 280 (1976) ss+s» 30n, 34 

Yick Wo v., Hopkins, 118 U.S, 356 (1886) ssasssssssas 19 

Zant v., Stephens, 103 S. Ct, 2733 (1983) sssssssrsrss 21, 22,27 

Statutes 

28 U.S.C, § 2254(d) s233s33s3ssssssssssssssssssvsass 4n 

Federal Rules of Civil Procedure 56 sssssssssrssasas 4n 

Federal Rules of Civil Procedure 59(C) ssr3vssarsvss 4n 

Laws of Florida, Ps» 24 (1865) +s3s3sv3s333333333032 25 

Laws of Xentucky, ps 42 (1865-66) ssssssvsssrsrsssrns 25 

. Laws of Rentucky, P> 52 (1869) s3ssssssssrrssssrsssras 25 

Legislative Matasrials 
  

Cong. Globe, 39th Cong.,, lst Sess, 2459 (1866) +.4:> 25 

Cong. Globe, 39th Cong., lst Sess. 2961 (1866) ...s4 25 

Cong. Globe, 42nd Cong.,, lst Sess, (1871) sssvssssans 26 

Other Authorities 
  

D, Baldus & J, Cole, Statistical Proof of 
Discrimination (19380 & Supp, 1982) ss3ssavss3 15 
  

  

F, Johnson, The Development of State Legis- 
lation Concerning The Free Negro (1958) sss 25 
  

  

 



  

C. Mangum, The Legal Status of the Negro (1940) .... 25 
  

G. Stephenson, Race Distinctions in American 
  

  

Law (1955) PEER IE IE BE BE B= I I BE BE Bh BE NE BE BE BE BE NE BE Bh BE BE BE ER EE BE BE EE TE EE BE EE EE 25 

1 - 

1 J. Weinstein, Weinstein's Evidence (1982) sass 4 

§ T, Wilson, The Black Codes of the South (1965) +...» 25 
  

- yi = 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

JAMES LEE SPENCER, 

Petitioner-Appellant, 

- against - 

WALTER D, ZANT, Superintendent, 
Georgia Diagnostic & Classification 

Center, 

Respondent-Appellee, 

  

On Appeal From The United States District Court 
For The Southern District of Georgia 

Augusta Division 

  

SECOND SUPPLEMENTAL BRIEF FOR PETITIONER- 
APPELLANT ON REHEARING EN BANC 

  

Petitioner James Lee Spencer submits this second 

supplemental brief to respond directly to each of the ten 

questions propounded by this Court in its memorandum to coun- 

sel of December 23, 1983, 

QUESTION 1: What is the meaning of "materiality" and how 
does that definition Fit with this particular claim of arbi- 
trary and discriminatory application of the death penalty? 

  

  

In Townsend v, Saln, 372 U.S. 293 (1953), the 
  

Supreme Court held that "a federal court must grant an evi- 

dentiary hearing to a habeas applicant" if any of six speci- 

 



  

fic standards apply, One of the six is met "{ilf , , : the 

material facts were not adequately developed at the state 

court hearing." 1d, at 313. The Court stated that the "ma- 

terial facts" standard would require a hearing when "evidence 

crucial to the adegqtiate consideration of the constitutional 
  

claim was not developed at the state hearing." Id. at 317 

(emphasis added). 

This Circuit has confronted the meaning of "mate- 

riality" under Townsend in three recent cases. In Thomas Vv. 
    

2ant, 597 P.2d 977 {11th Cir. 1983), the Court stated that a 

patitioner is entitled to a hearing when a fact that is "cru- 

cial toa air, rounded development of the material facts” 

underlying his constitutional claim has not been presented to 

and adjudicated by hs state court, Id. at 986, The Thomas 

Court held that the petitioner in that case had made a "clear 

showing" that a material fact had not been adequately devel- 

Snel at the state court hearing, because his trial counsel's 

trial strategy had not been disclosed and evaluation of that 

strategy was "indispensable" to an assessment of petitioner's 

ineffective assistance claim, 

In Coleman v. Zant, 708 F.2d 541 (llth Cir. 1933), 
  

petitioner claimed that his constitutional rights had be2n 

  

The Thomas Court noted that the Townsend issue of 
  

whether a fact was adequately developed at a state court 
hearing and whether that fact was material might itselft 

require a federal evidentiary hearing. Thomas v. Zant, 
597 1.24 977, 986. {11th Cir, 1933), 

  

 



  

violated by pretrial publicity, The Court stated that trans- 

cripts of television and radio broadcasts concerning peti- 

tioner's case, depositions of news directors from television 

and radio stations and newspapers in Seminole County, and 

depositions of other persons with knowledge of prejudice 

against petitioner in Seminole County, were facts that were 

"unquestionably material" to petitioner's claim of presumed 

prejudice from pretrial publicity; "these facts would be cru- 

cial in determining the degree to which the publicity was 

prejudicial and the saturation thereof," Id. at 547, 

Most recently, in Ross v, dopper, 716 F.2d 1528 
  

(llth Cir, 1983), this Court examined the "materiality" re- 

quirement as it related to petitioner's constitutional chal- 

lenge to the racial and sexual composition of his grand and 

traverse juries. The Ross Court stated that, under Castaneda 
  

v., Partida, 430 U.S, 482 (1977), petitioner was required to 
  

show underrepresentation on juries of a distinct, recogniza- 

ble class and that the selection procedures either were not 

racially neutral or were susceptible of abuse, Id, at 1538, 

The Court held that because the facts that petitioner al- 

leged, even if proved, "were inadequate to sustain his con- 

stitutional challenge," petitioner was not entitled to an 

evidentiary hearing on his jury challenge claim. Id. 

Examining Thomas v, Zant, Coleman v., Zant, and Ross 
  

v. Hopper together, a standard of "materiality" emerges, 
  

 



  

Material facts are those primary, basic, or historical facts 

that bear directly on the disputed issue, without which there 

has been no "fair, rounded development" of the overall facts 

underlying a constitutional claim. Thomas v. Zant, 697 F.2d 
  

at 9379, The proffered facts do not have to be, in and of 

themselves, determinative of the constitutional claim, id. at 

938; rather, they must be relevant to the disputed issue and 

necessary for a court to make an adequate determination of 

petitioner's constitutional claim. Coleman v. Zant, 708 F.2d 
  

at 546; see Townsend v, Sain, 372 U.S. at 117.2 
  

In this case the Baldus study is clearly a "mate- 

rial fact" under Townsend with respect to Spencer's claim 
  

that Georgia's death penalty is being imposed in violation of 

the Eighth and Fourteenth Amendments.3 The Baldus study is a 

  

In that sense the materiality requirzsment is analogous 
to the civil procedure requirement of Rule 56 of the 
Federal Rules of Civil Procedure, See Blackledge v, 
Allison, 431 U.S. 63, 80 (1977) (in habeas cases, "la}s: 
in civil cases generally," summary judgment is a "proce- 
dure whose purpose is to test whether facially adequate 
allegations have sufficient basis in fact to warrant 
plenary presentation of evidence"). Under Rule 56, 
summary judgment is improper -- and a trial or other 
fact-finding hearing nust be held -- if there is a 

genuine issue as to any material fact, See Fed. R. Civ, 
P. 56(c). A material fact, Eor the purposes of Rule 545, 
is one that "may affect the outcome of the litigation." 

Mutual Fund Investors, Inc. v., Putnam Mangement Co,, 553 
$.24:620,. 623 (9tn-Cir., 1977). 

  

  

  

It is important to note, of course, that Spencer's 
proffer of the Baldus study entitles him to an 2viden- 
tiary hearing not only under the "material facts" stan- 
dard of Townsend and 28 U,S.C., § 2254(4d) but also under 
  

two other Townsend standards: that the state fact- 

(footnote continued) 
  

 



  

"state-of-the-art" statistical analysis of over 230 variables 

that could affect decisions to impose the death penalty, 

including all of the factors that this Court has suggested or 

implied might be important in proving an arbitrary imposition 

claim. The Baldus study demonstrates that significant and 

persistent racial disparities do exist with regard to the 

imposition of the death penalty, based on both the race of 

the defendant and the race of the victim. None of that evi- 

dence was in the state court record before the District 

Court, 

Such evidence is plainly "crucial to a fair, round- 

ed development of the material facts" underlying Spencer's 

constitutional claim, Thomas v. Zant, 697 F,2d at 986, and is 
  

"crucial to the adequate consideration” of constitutional 

issues, Townsend v. Sain, 372 U.S. at 317, Evidence of dis- 
  

parate impact is highly material to a claim under the Eighth 

Amendment that punishment is being imposed in an arbitrary 

and discriminatory manner based on race, See Furman v. 
  

Georgia, 408 U.S. 238 (1972), Similarly, because gross sta- 

tistical disparities alone can show a pattern and practice of 

discrimination, see Hazelwood School District wv, United 
  

  

(footnote continued from previous page) 
finding procedures were "not adequate to afford a Full 
and fair hearing" and that there is a "substantial 

allegation of newly discovered evidence." See First 
Supplemental Brief for Petitioner-Appellant on Rehearing 
En Banc, Spencer v. Zant, No, 82-8408, at 27-29 
  

(hereinafter "Pet, First Supp. Brief"), 

 



  

States, 433-0U.S., 299, 307-08, (1977); International Brother— 
  

hood of Teamsters v, United States, 431 U.S. 324, 339-40 
  

(1977): Willis v, Zant, 720 P.24:1212, 1220 n,18 (llth Cir, 
  

1983); Searcy v. Williams, 656 F.2d 1003, 1008-09 (5th Cir, 
  

1981), aff'd sub nom, Hightower v. Searcy, 455 U.S, 984 
  

(1982), the significant racial disparities indicated by the 

Baldus study are- crucial to the adequate consideration and 

development of Spencer's Equal 2rotection claim, Finally, 

because the Baldus study displays strong and persistent evi- 

dence of lingering racial discrimination in Georgia's entire 

capital sentencing system, the study constitutes evidence 

that would warrant habeas relief... See Ross v, Hopver, 716 
  

P.24 at 1534, 

QUESTION 2: Describe the proffer. Is it sufficient for this 
court to determine whether Petitioner has satisfied the mate- 
riality requirement, or is an evidentiary hearing necessary 

on this threshold point? 

  

  

The proffer itself is generally described at Th 

13-19 of Pet. First Supp. Brief, As indicated in that brief, 

the proffer took several forms: (1) written memoranda re- 

- questing an evidentiary hearing, informing the District Court 

that new, previously unavailable social science reasearch had 

been undertaken by Glen Bierce of Northeastern University and 

David Baldus of the University of Iowa School of Law, and 

that new findings had been made "which bear directly on Peti- 

tioner's claims and which were previously unavailable” 

Ia) (R. 126, 231); (2) a written motion requesting the appoint- 

 



  

ment of those two experts, among others, to testify about 

their ongoing studies and their results (R, 95-96); (3) oral 

representations to the District Court, further describing the 

social science evidence sought to be presented, explaining 

its previous unavailability, and describing its general na- 

ture and results; (4) oral representations to the court re- 

garding additional historical evidence of discrimination in 

the judicial system of Burke County; and (5) another written 

proffer, in a timely Rule 59 motion, specifically informing 

the District Court of newly available results from Professor 

Baldus, wnich bore directly on this Court's recently an- 

nounced decision in Smith v. Balkcom, 671 F.2d 853 (5th Cir.) 
  

(per curium) (R. 380-81 n.l). 

The District Court clearly understood the scope of 

petitioner's proffer, recognizing that petitioner's evidence 

might well "show that sentencing patterns under the new 

[post-Furman v, Georgia] statute still [after reveal glaring 
  

disparities in the imposition of the death penalty based upon 

race, sex and poverty," Mitchell v, Hopper, 538 F, Supp. 77, 
  

90 (S.D. Ga. 1982). Nothing in its ruling, or in respon- 

dents' objections to petitioner's request for an evidentiary 

hearing, indicated that any additional detail in petitioner's 

oroffer would have made any difference in the District 

Court's decision. 

 



  

Petitioner believes that, if this Court -adneres to 

  

the definition of ™materiality™ it has followed id Thomas v. 

Zant and other cases, the summary of the orotter available on 

this record is clearly sufficient to demonstrate that peti- 

tioner has met the Thomas requirements. In the event the 

Court constructs a more demanding standard of materiality in 

this context, however, a-threshold evidentiary hearing may be 

required. For example, an evidentiary hearing could ba re- . 

quired if the court were now to hold that extensive detail 

must be proffered on discrimination within the county or ju- 

dicial circuit in which a petitioner was tried. Petitioner 

is prepared to present that evidence, and any other informa-. 

tion relative to those issues which the Court might hold is 

required, at any such "matsriality™ hearing directed by this 

Court, 

  

QUESTION 3: Was Petitioner denied the opportunity to proffer 

all his evidence? 
  

Petitioner was effectively denied the opportunity 

to proffer all of his evidence By the District Court's denial 

of an evidentiary hearing. The District Court clearly ruled 

any statistical evidence of discrimination inadmissible 3% A 

matter of ta. It plainly ruled any such evidence irrele- 

vant, anlaes it involved "specific acts of invidious discrim- 

ination" in a particular case. Mitchell v, Hopper, 538 F. 
  

Supp. 77, 90 (S.D, Ga, 1932), Under ordinary pleading rules, 

 



  

the District Court's rejection of petitioner's claim as a 

matter of law should have excused vetitioner from the duty to 

proffer any additional evidence, "If the judge refuses to 

entertain the legal theory, however, counsel may be held to 

be excused from making an offer of proof," 1 J. Weinstein, 

Weinstein's Evidence 103-34 (1982) (citing Wigmore on Evi- 
    

dence § 17, at 318 (3d ed. 1940) (offer excused when "an en- 

tire class of evidence has been in advance declared formally 

inadmissible") ); cf, Lewis v, United States, 445 U,S, 55, 58 
  

(1980), 

Nonetheless, as soon as it became available, peti- 

tioner made his proffer of the Baldus evidence in as explicit 

and detailed a manner as then possible, The panel noted that 

"the Baldus evidence ,. , . was not then available except by 

live testimony"; therefore, the only full opportunity to de- 

tail the evidence would have been to allow Professor Baldus 

to present his testimony orally. The District Court refused 

petitioner such an opportunity, 

If yes, state in detail the evidence to 
be offered, 
  

As noted in Pet, First Supp. Brief, the Baldus re- 

search is sufficiently extensive and detailed to make it im- 

possible to summarize fully its contents, Petitioner has 

included as an appendix to his First Supplemental Brief, a 

sketch of the evidence in broad outline. In addition to that 

 



  

evidence, and the material summarized in Petitioner's First 

Supp. Brief, op. 19-22, petitioner specifically proffers to 

prove, tf necessary that radial disparities persist within 

Burke County and the Atlantic Judicial Circuit where pa2ti- 

tioner Spencer was tried, and persist at an approximately 20 

point rate for one-at petitioner's level of aggravation, 

Finally, petitioner proffers that there is substantial sup— 

porting evidence of racial discrimination in the criminal 

justice justice of ‘Burke County. 

QUESTION 4: Are statewide regional statistics material to 

claims of arbitrary and discriminatory application of the 
death penalty, or must those statistics be localized to 
satisfy the particularized inguiry? 

  

  

Jader the dsolaions of the Supreme Court and this 

Circuir, statewide statistics ar2 material to a claim of ar- 

BiEratiness and discrimination in the imposition of a state's 

death penalty. Although localized statistics may also be 

used EEA en SEE of discrimination in addition 

to, Or sven. independently of, a statewide pattern and thus 

. may also be ‘material to such a claim, a petitioner need not 

proffer localized statistics in order to present a constitu- 

tional challenge to the imposition of a death penalty stat- 

ute, 

Georgia's death penalty statute prescribes a set of 

statewide procedures, including statutory aggravating cir- 

[ cumstances, to be applied by every jury in every capital case 

 



  

in every county, 4 Petitioner challenges the application of 

that statute, claiming a pattern and practice of discrimina- 

tion based on the race of the defendant and the race of the 

victim, 

The Supreme Court in Gregg v. Georgia, 428 U.S, 
  

153, 187 (1976) (plurality opinion), emphasized that a 

state's capital sentencing statute is the expression of that 

state's "moral consensus." It has repeatedly held that the 

state bears the responsibility for the non-discriminatory 

imposition of its capital sentencing scheme. "[I]f a state 

wishes to authorize capital punishment it has a constitution- 

al responsibility to tailor and apply its laws in a manner 

that avoids the arbitrary and capricious infliction of the 

death penalty." Godfrey v., Georgia, 446 U.S. 420, 423 (1980) 
  

(plurality opinion); see Gardner v. Florida, 430 U.S. 349, 
  

361 (1977) ("the State must administer its capital-sentencing 

procedures with an even hand"). In order to satisfy that 

obligation, the state must give juries "guidance regarding 

the factors about the crime and the defendant that the State, 
  

representing organized society, deems oarticularly relevant 
  

  

It is important to note that this case does not present 
an issue of the validity of purely local procedures or 
practices, such as in a jury composition challenge, 

which necessarily requires more localized proof, See, 
e.,%., Turner v. Fouche, 396 U.S. 345 (1970) (37% black 
jurors in county 60% black); Whitus v. Georgia, 385 U.S, 
545% {1967) (7.8% and 9.1% black jurors in county 27.1% 

black), : 

  

  

11 

 



  

ta the sentencing. decision." Gregg v. Georgia, 428 .U,S. at 
    

192 (plurality opinion) (emphasis added). It is the State 

which "must channel the sentencer's discretion by 'clear and 

objective standards' that provide "specific and detailed gui- 

dance, ' and that 'make rationally reviewable .the process for 

imposing a sentence of death.'" Godfrey v. Georgia, 446 U.S. 
  

at 428 (plurality opinion) (citations omitted).  -- 

The Supreme Court, in deciding the constitutional- 

ity of Georgia's post-Furman death penalty scheme, examined 

Georgia's statutes on a statewide, not a localized basis. 

See Gregg v. Georgia, 428 U.S, at 203 (plurality opinion) 
  

("the isolated decision of.a jury to afford mercy does not 

render unconstitutional death sentences imposed on defendants 

who were sentenced under a system that does not create a sub- 
  

stantial risk of arbitrariness or caprice" (emphasis added)). 

In addition, the Supreme Court found significant the state-. 

wide appellate review of Georgia's death penalties by the 

Georgia Supreme Court. See id, at 167, 198, 203-06 (plural- 

ity opinion), Bath of those factors clearly indicate that 

statewide statistics are not only proper but necessary. 

This Circuit has implicitly recognized the validity 

of statewide statistics as well. In Spinkellink v, Wain- 
  

weight, 578 F.24.582 (5th.Cir.. 1278), cert. denied, 440 U.S, 
  

876 (1979), the Court, while rejecting petitioner's challenge 

to the imposition of Florida's death penalty, nonetheless 

“il7 - 

 



  

looked to petitioner's statewide statistics; the Court stated 

that petitioner's claim would require a comparison of "the 

factors and circumstances of the getitioner’s case with the 

facts and circumstances of all other Florida death penalty 
  

cases," Id. at 613 (emphasis added); see also Corn v, Zant, 
  

708 F.2d 549, 563 (llth Cir. 1983). Moreover, in Smith v,. 
  

Balkcom, 671 F,2d 858 (5th Cir,) (per curiam), mandate re- 
  

called, 677 P.24 20 (5th Cir,), cert, denied, 103 S.,~ Ct. 181 
  

(1982), this Court suggested that a statewide analysis might 

be sufficient to show discrimination, The statistical analy- 

sis in Smith was found improper not because it was statewide 

but because it failed properly to account for other varia- 

ples. See id, at 859 n.33. 

In addition the Supreme Court has approved the use 

of generalized statistics to prove discrimination in other 

contexts, See, e.9., Dothard v. Rawlinson, 433 UJ.S. 321 
  

(1977) (comparison between statutory minimum height and 

weight requirements for Alabama prison guards and national 

statistics on female height and weight); International 
  

Brotherhood of Teamsters v, United States, 431 U,S., 324, 337 
  

& n.l7 (1977) (comparison between percentage of blacks on 

employer's work force and percentage of blacks in general 

area-wide population), Indeed, in Hazelwood School District 
  

v, United States, 433 U.S. 299 (1977), the Supreme Court 
  

noted the appropriateness of the area-wide statistics used in 

~i'Y3 iu 

 



  

Teamsters and indicated that more localized statistics might 
  

be necessary only when the group under examination possessed 

"special qualifications" not found, in the general popula- 

tion,> 14, at 308 n.13. Of course, it is the responsibility 

of the trial court, after evaluating all the facts, to deter- 

mine the appropriateness of the scope of the proffered sta- 

tistics, See id. at 312-13. 

QUESTION 5: If generalized statistical evidence may be used 
to prove discrimination, are there other requirements that 

such evidence must satisfy? If so, is additional proof 

necessary? 

  

  

Petitioner has proffered several statistical stu~- 

dies by Professor David Raldus employing multiple regression 

analysis to analyze over 230 variables that might affect 

Georgia capital sentencing decisions. Petitioner nas demon- 

strated in his First Supplemental Brief (see pp, 44-51) that 

such statistical evidence can properly be used in proving his 

claim of discrimination, In Wilkins wv. University of 
  

Houston, 554 7,23 388 (53th Cir, 19381), vacated on other 
  

grounds, 103 S, Ct. 34 (1982), the Court stated that multiple 

regression analysis "may be the best, if not the only, means 

of proving classwide discrimination with respect to compensa- 

  

The Baldus study accounts for both a general population 
and special factors that might affect that population. 
The Baldus study focuses on the statewide population of 

cases in which the death penalty could be imposed. How- 
ever, 1t also analyzes 230 different variables that 
could or might affect the decision to impose the death 
nenalty., 

 



  

tion" where compensation is affected simultaneously by a num- 

ber of factors. Id. at 403. That language is particularly 

applicable to claims of arbitrary and discriminatory imposi- 

tion of the death penalty, since the decision to impose the 

death penalty is also affected simultaneously by numerous 

variables, 

In Eastland v, Tennessee Valley Authority, 704 F,2d 
  

813 (llth Cir, 1983), this Court stated that: 

[t]he probative value of a multiple regression 
analysis depends in part upon: (1) the inclusion 
of all the major variables likely to have a large 
effect on the dependent variables; and (2) the val- 
idity of the assumption that the remaining effects 
(the influences included in the random disturbance 
term) are not correlated with the independent vari- 
ables included, 

Id, at 621. The Eastland Court relied on Professor Baldus' 
  

book, D, Baldus & J. Cole, Statistical Proof of Discrimina- 
  

tion (1980 & Supp. 1982), in articulating the types of evi- 

dence a court would need to evaluate a regression model, 

Those include testimony as to what factors actually operated 

in the decision-making process, what factors generally oper- 

ate in like decision-making processes, and what factors can 

be expected to influence the process. 704 F.2d. at 623, The 

strength of the factors could in turn affect the determina- 

tion "whether the group status coefficient indicates discrim- 

ination or the influence of legitimate qualifications which 

happen to correlate with group status." Id. 

- 18 = 

 



  

Thus, it is clear that a petitioner should submit 

evidence to support the choice of variables used in the anal- 

ysis, ie 

Ideally, when a multiple regression analysis is 
used, it will be the subject of expert testimony 
and knowledgeable cross examination from both 

sides, In this manner, the validity of the model 
and the significance of its results will be fully 
developed at trial, allowing the trial judge to 
make an informed decision as to the probative value 
of the analysis, 

Wilkins v. University of Houston, 654 F,2d at 403, In this 
  

case the proffered Baldus evidence includes the basis for the 

selection of the numerous variables included, as well as the 

methodology used in analyzing the vast amounts of data. That 

evidence, when presented to the District Court, would demon- 

strate both the validity of the model and the significance of 

its results, 

Beyond this necessary supporting evidence, a peti- 

tioner may, of course, bolster a statistical case by proof of 

specific discriminatory acts, or other evidence of prior re- 

lated patterns of discrimination, See, e.g., Rogers v, 
  

Lodge, 458 U,S., 613 (1982), Such evidence, while sometimes 

useful, is not strictly necessary to establish a claim of 

discrimination. 

 



  

QUESTION 6: After Gregg and Soinkellink, can Petitioner 

challenge the Georgia death penalty as applied on a broader 

basis than simply for individual discrimination? 

  
  

  

Furman v. Georgia, 408 7.5. 238 (1972), squarely 
  

held that state death sentencing statutes could be chal- 

lenged, as applied, on a broader basis than simply for indi- 

vidual discrimination, See 408 U.S. at 253 (Douglas, J.); 

id. at 274 (Brennan, J.); id, at 310 (Stewart, Je): id. at 

313 (White, J.); id. at 364-65 (Marshall, J.). Nothing in 

Gregg v. Georgia, 428 U.S. 153 (1976), overruled that holding 
  

of Furman. Gregg upheld the provisions of "the statutory 
  

system under which Gregg was sentenced to death," id. at 207, 

"[oln their face." Lacking any evidence of the actual pat- 

tern of imposition of death sentences under the revised stat- 

utes, see id. at 224-25 (White, J., concurring), the prevail- 

ing opinions in Gregg had no occasion to question the holding 

of Furman that the arbitrary, capricious, and freakish 

imposition of the death penalty would violate the Eighth 

Amendment, To the contrary, they clearly assumed it would. 

See id. at 206-07 (plurality opinion); id. at 224-26 (White, 

J. concurring). 

Petitioner believes that the panel dictum in 

Spinkellink v, Wainwright that adherence to a facially valid 
  

statute "conclusively remove([s]" arbitrariness and 

capriciousness, 578 F.2d at 505, constitutes a fundamental 

misreading of Furman and Gregg. (See Pet, First Supp. Brief 

ay 

 



  

at 51-54) That holding overlooks the fact that a statute, 

though valid on its face, may nonetheless be "susceptible of 

abuse" and invalid in its application. Castenada v. Partida, 
  

430 U.S. 482, 494, 497 (1977). The Supreme Court's holding 

in Godfrey v. Georgia, 446 U.S. 420 (1980), demonstrates pre- 
  

cisely that principle. As a panel of this Court has ob- 

served, Godfrey clearly undermines the premise of the holding 

of Spinkellink. Proffitt v, Wainwright, 685 F.2d 1227, 1252 
    

(11th Cir. 1982), cert, denied, 52 U.S.L.W. 3423 (U.S, 
  

Novas 29,1983), 

Assuming the existence of statewide statistics 
that show a highly disparate application of 
the death penalty sufficient to prove intent 
under Arlington Heights, could that evidence 

serve as a basis for a statewide attack on the 

death penalty as applied in Georgia? 

  

  

Unquestionably, after a showing of statewide, in- 

tentional discrimination in the imposition of the death pen- 

alty "the equal protection clause of the Fourteenth Amendment 

[would] . .» . forbi[d] continued enforcement of that statute 

in its existing form." Furman v, Georgia, 408 U.S, at 389 
  

n.12 (Burger, C. J., dissenting). Such evidence "could 

serve as the basis for a statewide attack on the death penal- 

ty as applied" in a class action brought by individuals simi- 

larly aggrieved by that discriminatory action. 

This is not such an action, however. Though the 

grant of a petition for habeas corpus based on a finding of 

i KT a 

 



  

statewide racial discrimination might entitle other petition- 

ers to similar relief -- if they were identically situated, 

see Yick Wo wv, Hopkins, 118 U,S, 356 (1886) -- in an individ- 
  

ual habeas corpus action such as this, the issue is limited 

to whether this petitioner "is in custody in violation of the 

Constitution or laws or treaties of the United Sates,” 28 

J,5.C., § 2241(¢c)(3). If so, the only relief possible is to 

release him from that sentence. See Fay v. Noia, 372 U.S. 
  

391 (1963); Newman v, Wainwright, 464 P.24 615, 815 (5th Cir, 
  

1972). 

QUESTION 7: To the extent that the proffered evidence indi- 
cates that a disparate impact on the basis of the race of the 
defendant, does such evidence constitute a material fact 
Thomas v. Zant? 

  

  

Yes, See our answer to guestion one, supra, 

(a) Discuss answer under an Equal Protec- 
tion Analysis. What proof is necessary to 
establish an equal protection violation? 
  

To state a claim under the Equal Protection Clause 

of the Fourteenth Amendment, a plaintiff must make a prima 

facie showing that a state statutory scheme purposefully dis- 

criminates against one group over another, Parsonnel Admin- 
  

  

istrator v, Feeney, 442 U.S. 236, 271-74 (1979), A prima 

facie case of purposeful unconstitutional classification can 

oe shown either by the statute's specific language or, if a 

law 1s neutral on its face, by the statute's disproportionate 

 



  

effect on different groups, Crawford v. Board of Education, 
  

102 8. Ct. 3211, :3221 (1932). Once that prima facie case is 

made, the burden shifts to the State to justify its classifi- 

cation either under a rational basis test or, if the classi- 

fication is "suspect" or infringes upon a fundamental right, 

under a test requiring the State to show that the statute is 

precisely tailored to serve a compelling governmental inter- 

est, Plver v, Doe, 102 8S. Ct, 2382, 2394-935 (19232). 
  

Evidence of purposeful discrimination based on the 

race of the defendant in the operation of a state criminal 

statute, or evidence that a state statute results in 

classifications that impinge on a fundamental right such as 

the right to ‘life, directly supports a finding that that 

statute violates the Fourteenth Amendment, Evidence that a 

facially neutral statute results in a racially disproportion- 

ate impact can sometimes suffice to establish intent, 

Village of Arlington Heights v., Metropolitan Housing Develop- 
  

ment Corp,, 429 U.S. 252, 266 (1977); Washington v, Davis, 
  

  

426 U.S. 229, 242-46 (1976), That evidence bears directly on 

the central issue in an equal protection case -- whether "all 

persons similarly circumstanced are being treated alike," 

Plyer v. Doe, 102 8S. Ct. at 2393, 
  

Under those principles it is clear that evidence 

indicating there is a disparate impact on death sentencing 

rates on the basis of the defendant's race constitutes a 

“30 

 



  

  

material fact under Thomas v. Zant, 697 F.24 977 (11th Cir. 

1983), That evidence is an important starting point for 

showing purposeful discrimination, Crawford v. Board of Edu- 
  

cation, 102 8S. Ct. at 3221, and "for all practical purposes 

[can] demonstrate unconstitutionality because , , . the dis- 

crimination is very difficult to explain on nonracial 

grounds," Washington v, Davis, 426 U,S., at 242, Thus, the 
  

evidence is relevant to the issue of purposeful discrimina- 

tion and, in many cases, sufficient to prove a prima facie 

case that a state statute violates equal protection guaran- 

tees, 

(b) Discuss answers under an arbitrary capri- 
cious analysis of the Eighth Amendment. What 
oroof is necessary to establish an Eighth 
Amendment violation? 
  

To state a claim that a state death penalty statute 

is being applied in violation of the Eighth Amendment, a pe- 

titioner must show that death sentences are being imposed in 

an arbitrary and capricious manner, California v. Ramos, 103 
  

8S. Cb. 3446, 3452 (1983); Zant v, Stephens, 103 §, Ct. 2733, 
  

2741-43 (1983), Death sentences are imposed in an arbitrary 

and capricious manner where the procedures for imposing the 

death penalty "fail adequately to channel the sentencing de- 

cision," or where they permit the jury to exercise unbridled 

discretion in determining whether the death penalty should be 

imposed, Zant v, Stephens, 193 8, Ct, at 2742 (quoting Sr=gq 
  

 



  

v. Georgia, 428 U.S, 153, 195 (1976)). The Supreme Court has 
  

also stated that death sentencing procedures are infirm if 

they allow the jury to consider as aggravating circumstances 

"factors that are constitutionally impermissible or totally 

irrelevant to the sentencing process, such as, for example, 

the race, religion, or political affiliation of the defen- 

dant." Zant v. Stephens, 103 S, Ct, at 2747; accord Moore v, 
    

Balkcom, 716 F.24 1511, 1519, 1522 (11h Cir. 1983) {death 

sentence is unconstitutional if impermissible factors, such 

as race, are considered by the jury as an aggravating factor 

or as a part of its discretionary decisionmaking); see Furman 
  

v., Georgia, 408 U.S, 238, 250-56 (1972) (Douglas, J., concur- 
  

ring). 

Evidence of a statistically significant, persistent 

disparate impact on the basis of the race of the defendant is 

direct evidence that juries, in imposing death sentences, 

have taken into consideration "factors that are constitu- 

tionally impermissible or totally irrelevant to the senten- 

cing process," Zant v, Stephens, 103 S, Ct. at 2747; Moore 
  

v. Balkcom, 716 F.2d at 1522 (reliance on race invalidates 
  

death sentence). Because a showing of intentional discrimi- 

nation is not required under the Eighth Amendment, see Furman 
  

v. Georgia, 408 U,S, 238 (1971), evidence of disparate impact 
  

based on race is not only relevant, it may be the best evi- 

dence of a constitutional violation. 

ly 

 



  

Thus, evidence of disparate impact falls squarely 

within the meaning of "materiality" as used in Thomas v. 
  

Zant, 697 F.2d 977 (llth Cir. 1983), and its progeny. The 

evidence is necessary and essential to petitioner's constitu- 

tional claim that a sentencing jury impermissibly considered 

race in reaching its decision, Proof that race was a factor 

is direct evidence that a sentence was "wantonly and freak- 

ishly imposed," Furman v., Georgia, 408 U.S. at 310 (Stewart, 
  

J., concurring), and was the result of an arbitrary and 

capricious procedure that relied on factors irrelevant to the 

death sentencing process, 

QUESTION 8. To the extent the proffered evidence indicates a 
disparate impact on the basis of the race of the victim, does 

such evidence constitute a material fact? 

  

  

Yes. See our answer to question one, Supra, 

(a) Discuss answer under the equal 
protection analysis. What proof is 
necessary to establish an equal pro- 
tection violation? 
  

Racial distinctions based on discrimination within 

the trial or sentencing process of a criminal defendant vio- 

late the Equal Protection Clause of the Fourteenth Amendment. 

Thus, criminal defendants in state court may challenge the 

discriminatory selection of grand and petit juries under the 

Equal Protection Clause, Rose v, Mitchell, 443 U.S. 545, 556 
  

(1979); Tavlior v. Louisiana, 219 0.8. 522, 527 41975); dnited 
  

States v. Perez—-Hernandez, 672 7.24 1330 (llth Cir. 1932); 
  

 



  

see United States v. Hobby, 702 F.2d 466 (4th Cir.), cert, 
  

granted, 52 U,S.L.W. 3449 (U.S. Dec. 12, 1983) (Wo, 82-2140), 

Similarly, defendants who are subject to death sentencing 

procedures in which the jury discriminates between defendants 

based on the race of their victims are similarly infirm. See 

Loving v. Virginia, 388 U.S. 1, 8-11 (1967); McLaughlin v, 
  

  

Florida, 379 0.5, 184, 188-93 & n.7 (1964) (discussing Pace 

v. Alabama, 106 U.S. 583 (1883)). 
  

That conclusion is firmly supported by the history 

of the Fourteenth Amendment and the Equal Protection Clause, 

as petitioner noted in his First Supplemental Brief, at pp. 

36-38, The Equal Protection Clause of the Fourteenth Amend- 

ment was intended to prohibit discriminatory action by the 

state, Rose v, Mitchell, 443 U.S. at 554-55, and was specifi- 
  

cally directed at eradicating the Black Codes passed by the 

southern states following the civil war. See General Build- 
  

ing Contractors Association v, Pennsylvania, 102 S, Ct, 3141, 
  

3146-49 (1982), In the congressional debates leading up to 

passage of the Fourteenth Amendment, discriminatory legisla- 

tion by the states was continually referred to as the evil 

addressed by the Egual Protection Clause, 

This amendment . . , allows Congress to correct the 

unjust legislation of the States, so far that the 
law which operates upon one man shall operate 

equally upon all. Whatever law punishes a white 
man for a crime shall punish the black man precise- 
ly in the same way and to the same degree. What- 
ever law protects the white man shall afford 
"equal" protection to the black man, +» +» These 
are great advantages over their present codes, Now 

EIA 

 



  

different degrees of punishment are inflicted, not 
on account of the magnitude of the crime, but ac- 
cording to the color of the skin, Now color dis- 
qualifies a man from testifying in courts, or being 
tried in the same way as white men, I need not 
enumerate these partial and oppressive laws. Un- 
less the Constitution should restrain them those 
States will all, I fear, keep up this discrimina- 
tion and crush to death the hated freedmen, 

Statement of Representative Thaddeus Stevens, Cong. Globe, 

‘39th Cong,, lst Sess, 2459 (1865); accord, e.g9., Statement of 
  

Senator Pollard, Cong. Globe, 39th Cong, lst Sess. 2961. 

(1866), Under those state laws, the severity of punishment a 

criminal defendant would receive was often dependent on the 

race of the victim, not of the defendant. For example, 

Florida made it a capital crime to assault a white woman with 

intent to commit rape, but did not make it a capital crime to 

assault a black woman, Laws of Florida, pn. 24 (1855). 

Kentucky also distinguished rape cases based on the race of 

the victim, Laws of Xentucky, pp. 42 (1865-66) & p. 52 
& 

(1869), See generally G,_Stephenson, Race Distinctions in 
    

American Law 274 (1965); T. Wilson, The Black Codes of the 
    

South (1965); F., Johnson, The Develooment of State Legisla- 
  

tion Concerning the Free Negro 84 (1958); C. Mangum, The Le- 
  

gal Status of the Negro 364-70 (1940). It is clear from the 
  

congressional debates that the Equal Protection Clause was 

intended to prohibit those distinctions, E.q., Statement of 

Rep. Thaddeus Stevens, Cong. Globe, 39 Cong., lst Sess. 2459 

(1866). In the debates prior to the passage of the Civil 

 



  

Rights Act of 1871, Representative Bingham, described by Jus- 

tice Hugo Black as the "father" of the Fourteenth Amendment, 

reviewed the history of the Equal Protection Clause and spe- 

cifically stated that it invalidated criminal statutes that 

discriminated based on the race of the victim of the criminal 

activity. 

Under the Constitution as it is . +» » and by force 

of the Fourteenth Amendment, no State , . » can 

. » » ever repeat the example of Georgia and send 

men to the penitentiary, as did that State, for 
teaching the Indian to read the lessons of the New 

Testament. + + 

Statement of Rep. Bingham, Cong. Globe, 42 Cong., lst Sess, 

(1871), reprinted in B. Schwartz, Statutory History of the 
  

  

United States: Civil Rights Part 1 308 (1970). 
  

A death sentencing procedure that discriminates 

based on the race of the victim thus violates the Fourteenth 

Amendment. Accordingly, evidence of such discrimination 

would support a prima facie case that the sentencing proce- 

dure violated the Equal Protection Clause, It bears di- 

rectly on the alleged constitutional infirmity and is rele- 

4 vant, if not essential, to a fair, rounded development of the 

underlying facts, Thomas v, Zant, 697 F.24 at 979, 937-88, 
  

Thus, under Thomas v. Zant that evidence is material. 
  

ER ¥ pe 

 



  

(b) Discuss under an arbitrary-capricious 
analysis of the Eighth Amendment. What proof 
is necessary to establish an Eighth Amendment 

violation? 
  

The same analysis that requires a jury's considera- 

tion of the defendant's race to be held an arbitrary and 

capricious application of the death sentence in violation of 

the Eighth Amendment applies equally to the jury's considera- 

tion of the race of the victim, Both the Supreme Court and 

the Eleventh Circuit have held that race of the defendant is 

a constitutionally impermissible and totally irrelevant fac- 

tor in the death sentencing process, Zant v., Stephens, 103 
  

8. CU. 2733, .2747 (1983); Moore v, Balkcom, 716 7.24 1511, 
  

1519, 1522 (llth Cir. 1983). Consideration of the victim's 

race is equally irrelevant to whether a defendant should re- 

ceive the death penalty and would result in an arbitrary 

classification having nothing to do with the presence of or 

lack of aggravating circumstances. Moore v. Balkcom, 716 
  

F.2d at 1522 (jury reliance on race invalidates a death sen- 

tence), Indeed, within the past month, the Court has reiter- 

ated that neither the prosecution nor the jury can make the 

status of "the victim {the} . + +» Justification for a death 

sentence." Moore (Carzell) v, Zant, No. 82-8683, slip op, at 
  

12 (11th Cir, Dec, 20, 1983). Race is the preeminent example 

of an invidious "status" distinction, and thus evidence that 

the victim's race has constituted a primary consideration in 

 



  

jury decisionmaking is direct, if not crucial, evidence that 

the death penalty is being imposed in an arbitrary and capri- 

cious manner, That evidence is material under Thomas vv. 
  

Zant, 

QUESTION 9: Should such evidence be analyzed only under an 
equal protection analysis, or should it also be analyzed 
under the arbitrary-capricious standard of the Eighth 
Amendment? 

  

  

Petitioner's claim below was based con the Eighth 

and Fourteenth Amendments, He has shown that his proffered 

evidence of race-based discrimination in sentencing supports 

a claim under both those constitutional provisions (see Pet, 

First Supp. Brief at 36-44, 51-54, and answers to questions 

5, 7 and 8, supra), and his evidence should be analyzed ac- 

cordingly. Because neither Spinkellink v., Wainwright nor 
  

Smith v, Balkcom is binding precedent on this Court sitting 
  

en banc, there is no precedental bar to an evaluation under 

the Eighth Amendment as well as the Equal Protection Clause, 

QUESTION 10: Discuss separately with respect to the equal 
protection analysis and the arbitrary-capricious analysis, 
first with respect to any disparity with respect to the race 
of defendant, and then any disparity with respect to the race 
of the victim: 

  

(a) Must there be a showing of intentional 
discrimination? 
  

A Fourteenth Amendment equal protection violation 

cannot be established without a showing of intentional dis- 

 



  

crimination. "[A] showing of discriminatory intent has long 

been required in all types of equal protection cases charging 

racial discrimination.” Rogers v, Lodge, 102 8, Ct. 3272, 
  

3276 (1982). That does not mean, however, that petitioner 

must identify an intentional discriminatory act or malevolent 

actor, see United States v. Texas Educational Agency, 579 
  

  

U.S, 915 (1979), or that racial discrimination was the pri- 

mary or dominant purpose, Village of Arlington Heights v, 
  

Metropolitan Housing Development Corpo,, 429 U.S, at 256, All 
  

that is required is a showing that discrimination "has been a 

motivating factor in the decision," id, and that "the deci- 

sionmaker , . .» selected or reaffirmed a particular course of 

action at least in part 'because,' not merely 'in spite of,’ 

its adverse affects upon an identifiable group." Personnel 
  

Adminigtrator v. Feenev, 442 0.8, 256, 279 (1979). 
  

The Supreme Court's prohibition of arbitrariness 

undér the Eighth Amendment does not require a finding of in- 

tentional discrimination, however. The opinions in Furman v, 
  

Georgia, 408 U.S. 238 (1972), which focused on the unequal 

imposition of the death penalty, specifically disavowed any 

reliance on a finding of invidious intent. Justice Douglas 

said, "[o]lur task is not restricted to an effort to divine 

what motives impelled these death penalties," 408 U,S. at 

253. (Douglas, J., concurring), Justice Stewart "put . , , LO 

~~ 0g 

 



  

one side" the question of intentional discrimination. 408 

U.S, 310 (Stewart, J., concurring). And Justice White even 

assumed the capricious pattern of death sentencing he found 

resulted from "a decision largely motivated by the desire to 

mitigate the harshness of the law." 408 U,S. at 313 

(White, J, concurring) .® 

Furman's central holding found Georgia's capital 

statute unconstitutional solely because it "permit[s] this 

unique penalty to be . , , wantonly and , , . freakishly im- 

posed." Gregg v., Georgia, 428 U,S. 153, 188 (197%) (plurali- 
  

ty opinion) (quoting Furman v., Georgia, 408 U.S, at 309-10 
  

(Stewart, J., concurring))., In Feenev's terms, that means 

the Eighth Amendment prohibits not only death sentences that 

are imposed "because of" race, but also sentences that are 

allowed to stand "in spite of" persistent racial disparities 

in the imposition of the penalty. No showing of intentional 

misconduct is required, 

That is consistent with the law of the Eighth 

Amendment in other contexts, The touchstone of the Eighth 

Amendment is effects, not intentions. See Rhodes v, Chapman, 
  

452 U.8. 337, 364 (1931) (Brennan, J., concurring); id, at 

345-46 (plurality opinion). "The prounibition against cruel 

  

The Court similarly struck down a misdirected statutory 
scheme, partly on the ground that it failed to check 
arbitrary and capricious death sentencing, in Woodson v, 
North Carolina, 428 0.5, 280, 299, 303 (1978) (plurality 

opinion), 

  

  

- 30 

 



  

and unusual punishment contained in the Eighth Amendment 

» » » 18 not limited to specific acts directed at selected 

  

individuals . + 1. +" Gates Va. Collier, 501 F.2d 1291, 1300- 

01 (5th Cir. 1974). "Ths result, not the specific intent, is 

what matters; the concern is with the 'natural consequences’ 

of action or inaction," Rozecki v. Gaughan, 459 F.2d 6, 8 
  

{1st Cir, 1972), 

An intent to punish may be one element in deciding 
whether there has been an eighth amendment viola- 
tion, since the state of mind or purpose of a gov- 

ernment official bears on the question of whether 
imposition of the punishment is a necessary or ra- 
tional means to a permissible end, However, wrong- 
ful intent is not a necessary element for an eighth 
amendment violation, If the physical or mental 
pain that results is cruel and unusual, it is a 

violation of the eighth amendment regardless of the 
intent or purpose of those who inflict it, 

Spain v. Procunisr, #00 F.24 183, 197 (9th Cir, 1979); see 
  

also Bel v. Hall, 392 F, Supp. 274, 276 (D. Mass. 1975) ("the 
  

personal good faith of the defendants is irrelevant to their 

obligation to eliminate unconstitutional conditions"). The 

most that has been required in any Eighth Amendment context 

is a showing of "deliberate indifference" to deprivations of 

constitutional magnitude. Estelle v, Gamble, 429 U,S, 97, 
  

105 (1976).7 

  

Justice Stevens strongly questioned the "deliberate 
indifference" standard in Gamble: 

I believe the court improperly attaches sig- 
nificance to the subjective motivation of the 
defendant as a criterion for determining 

whether cruel and unusual punishment has been 

(footnote continued) 

“:3) =~ 

 



  

The consistent theme in capital sentencing since 

Furman has been that states are strictly accountable for 

inequities in meting out this ultinate penalty. "[Tlae 

Eighth Amendment , , , requires] legislatures to write penal 

laws that are evenhanded, nonselective, and nonarbitrary, and 

+ 3 » requires] Judges to see to it that general laws are 

not applied sparsely, selectively, and spottily to unpopular 

groups." Furman v, Georgia, 408 U.S. at 256 (Douglas, J., 
  

concurring). "[Tlhe state must not arbitrarily inflict . . . 

[this] severe punishment," Id. at 274 (3rennan, .J., concur- 

ring). "[Tlhe State must administer its capital sentencing 

procedures with an even hand." Gardner Vv. Florida, 430 U.S, 
  

349, 361 (1977). "[I]f a state wishes to authorize capital 

ounishment it has a constitutional responsibility to tailor 

and apply its laws in a manner that avoids the arbitrary and 

capricious infliction of the death penalty." Godfrey va. 
  

Georgia, 446 U.S. at 428. "The intent of the executioner 

cannot . » » excuse the result, It was the statutory duty of 

the state officials to make sure that there was no failure.” 

  

(footnote continued from orevious page) 
inflicted, Subjective motivation may well 
determine what, if any, remedy is appropriate 

against a particular defendant. However, 

whether the constitutional standard has been 
violated should turn on the character of the 

punishment rather than the motivation of the 

individual who inflicted it. 

429 y,S, at 115 (Stevens, J., dissenting). 

 



  

Louisiana ex r=2l. Francis v. Resweber, 329 U.S, 459, 477 
  

(1947) (Burton, J, dissenting), 

The standard of proof tg establish an Eighth Amend- 

ment claim and an Equal Protection claim at trial are thus 

different; the latter requires proof of intent while the 

former does not, The evidence to be presented on both is- 

sues, however, might well be similar, as the same pattern of 

statistical disparity may be proffered to prove both claims. 

accordingly, the proffer required to meet the Thomas standard 

of materiality is essentially identical. 

(b) IE so, discuss the mode of proof of 
intentional discrimination. 
  

Intentional discrimination under the Fourteenth 

Amendment can be proven by statistical evidence alone where 

the racial disparities shown are sufficiently glaring or 

where the discretionary nature of the decisionmaking process 

makes that mode of proof particularly relevant, See Village 
  

of Arlington Heights v., Metropolitan Housing Devleopment 
  

emm—— 
corp,, 429 11,8, 252, 2658 & n,13 (1977); gee Pet, Pirst Supp, 

Brief at 44-51. Statistical evidence of discrimination can 

also be supplemented by historical evidence demonstrating a 

history of invidious action. 429 U.S. at 2567-68. Petitioner 

has offered both those kinds of evidence below. 

Furman makes it clear that, under the Eighth Amend- 

ment, a less rigorous showing of factual arbitrariness and 

 



  

caprice suffices to make out a constitutional violation. See 

408 U.S. at 249-52 (Douglas, J concurring); id. at 291-95 

(Brennan, J., concurring); id. at S09-10 (Stewart, J., 

concurring): id, at at 312-13 (White, J., concurring); id. at 

364-66 (Marshall, J., concurring); id. at 389 Nase 

(Burger, Ch, J,, dissenting); see also woodson v., North 
  

Carolina, 428 U.S. at 302-03 (plurality opinion). At most 
  

the Eighth Amendment could be held to require a showing of 

"evidence of rampant and not isolated deficiencies which 

[persist] due to callous indifference," Newman Vv. Alabama, 
  

503 F.2d 1320, 1330 n.,l4 (5th Cir,), gert, denied, 421 U,S. 
  

948 (1975). The statistical evidence proffered by petitioner 

-- especially when combined with his offer to show that dis- 

criminatory patterns have not been corrected by the action of 

the Georgia Supreme Court -- clearly met that standard as 

well, 

(c) Can statistics indicating a disparate im- 

oact on a statewide basis suffice, and, if so, 

under what circumstances; or must suca statis- 

tics relate to a particular geographical unit 
{2.9., county)? 
  

See our answer to question four, supra. 

CONCLUSION 
  

The Court should either (i) remand this case to the 

District Court for an evidentiary hearing or (ii) hold the 

 



  

appeal pending the appeal in McClesky v. Zant, No. C-81—-2434A 
  

{(N.D. Gas)» 

Dated: January 11, 1984 

Respectfully submitted, 

iy pr Lp ro LL 
BARRINGTON D. PARKER, JR, 

CLAUDIA J. FLYNN 

MARTIN S, HIMELES, JR, 

415 Madison Avenue 
New York, New York 10017 

  

EDWARD P, TOLLEY 

304 East Washington Street 

Athens, Georgia 30601 

JACK GREENBERG 

JAMES M. NABRITT, III 

JOHN CHARLES BOGER 
99 Hudson Street 
New York, New York 10013 

ANTHONY G, AMSTERDAM 

New York University Law School 
40 Washington Square South 
New York, New York 10012 

ATTORNEYS FOR PETITIONER-APPELLANT 

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