Post Hearing Brief on Behalf of Respondent
Public Court Documents
November 14, 1983

97 pages
Cite this item
-
Case Files, McCleskey Legal Records. Post Hearing Brief on Behalf of Respondent, 1983. 193850ad-5ba7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0d208e1d-9a56-4c5b-b92c-ea3173b751ac/post-hearing-brief-on-behalf-of-respondent. Accessed July 30, 2025.
Copied!
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN MCCLESKEY, Petitioner, CIVIL ACTION NO. C81-2434A Vv. WALTER D. ZANT, WARDEN, HABEAS CORPUS * * * * ¥ * X % * Respondent. POST-HEARING BRIEF ON BEHALF OF RESPONDENT Comes now Walter D. Zant, Respondent in the above-styled action and submits the instant post-hearing brief in opposition to the granting of federal habeas corpus relief. The only issues which will be addressed in this brief are those which have been addressed in the final briefs submitted on behalf of the Petitioner. For a discussion of the remainder of the issues, Respondent relies on those briefs previously submitted. Certain issues addressed in this brief have previously been addressed in other briefs and the majority of those arguments will not be repeated at this time, but references will be made to the prior briefs for the court's convenience. Pp I. NO AGREEMENT OR DEAL EXISTED BEWTEEN THE STATE AND WITNESS OFFIE EVANS AND EVEN IF THERE WERE SOME UNDERSTANDING, NO CONSTITUTIONAL ERROR EXISTS IN THE INSTANT CASE BASED ON THE FAILURE TO DISCLOSE SAID ALLEGED UNDERSTANDING. {Claim A). Offie Gene Evans testified on behalf of the state in rebuttal at Petitioner's trial in 1978. Evans had been incarcerated in the Fulton County jail at the same time as the Petitioner and provided testimony as to statements made by the Petitioner while he was incarcerated. The testimony related sol the Petitioner's statements concerning the shooting of the police officer. During closing arguments, the prosecution referred to the testimony of Evans briefly on two occasions. (TT. 969, 974). Petitioner asserts that an understanding existed between Evans and Detective Sidney Dorsey and asserts that such understanding was not revealed to the Petitioner and the jury. Petitioner asserts that this constitutes a constitutional violation. Offie Evans testified before the state habeas corpus court concerning this particular issue. Mr. Evans testified that there was an escape charge existing in the federal system at the time of his testimony in Fulton County. Mr. Evans testified that he had talked with Officers Harris and Dorsey prior to the time of his testimony and also that he had talked to Russell Parker of the district attorney's office. (H.T. 118). Mr. Evans also testified that he did not tell Mr. Parker that he had escape charges pending, although Mr. Evans later testified that when asked by Mr. Parker why he was in jail, he told him it was because of an escape. (H.T. 120). Evans also testified that he thought that he had been told either in August or September that the charges were going to be dropped against him and that he had been before the committee at the Federal Penitentiary concerning the charges. (H.T. 121). The court then asked Mr. Evans the following specific questions: "At the time that you testified at Mr. McCleskey's trial, had you been promised anything in exchange -for your testimony?" (H.T. 122). In response, Mr. Evans stated the following, "No, I wasn't. I wasn't promised nothing about -- I wasn't promised nothing by the D.A. but the Detective told me that he would -- he said he was going to do it himself, speak a word for me. That was what the Detective told me." (H.T. 122). That is the extent of the testimony from Mr. Evans concerning any understanding or agreement he might have had. In addition to this testimony, the deposition of Russell Parker was presented to the state habeas corpus court. Mr. Parker testified that he was not aware of any understandings d n > < between the Atlanta Police Department and witness Evans. (Parker Deposition at 10). Mr. Parker further testified that he was not aware of any deals made with Evans and that he never asked anyone to drop any charges against Evans. In regard to this allegation, the state habeas corpus court made the following findings: Mr. Evans at the habeas hearing denied that he was promised anything for his testimony. (H.T. 122). He did state that he was told by Detective Dorsey that Dorsey would "speak a word" for him. {(B.7.-122), * %%* The prosecutor at Petitioner's trial, Russell J. Parker, stated that he was - unaware of any understandings between Evans and any Atlanta Police Department detectives regarding a favorable recommendation to be made on Evans' federal escape charge. (Parker Deposition, p. 9). Mr. Parker admitted that there was an opportunity for Atlanta detectives to put in a good word for Evans with federal authorities. (Id., p. 19). However, he further stated that when any police officer has been killed and someone ends up testifying for the State, putting his life in danger, it is not surprising that charges, like those against Evans, will be dropped. (Id.). State habeas corpus order at 7-8. Based on these conclusions and findings, the state habeas corpus court determined that it could not conclude that an agreement existed "merely because of the subsequent disposition of the criminal charges against the witness for the State." (State Habeas Corpus Order at 8). Therefore, that court concluded that the allegation was without merit. In Napue v. Illinois, 360 U.S. 264 (1959), the United States Supreme Court recognized that a new trial would be granted in cases in which false evidence known to be false by the prosecution went uncorrected at trial. In Giglio v. United —— States, 405 U.S. 150 (1972), this holding was extended to include evidence which related to the credibility of a witness. The Court determined that if the false testimony in any reasonable likelihood could have affected the judgment of the jury, then a new trial should be granted. In that case, the knowledge of one prosecutor was imputed to another prosecutor because “the prosecutor's office is an entity and as such it is a spokeman for the Government." Id. at 154. The Court specifically focused on the point that reliability in that case of the particular witness could well have been determinative of guilt or innocence. In United States v. Antone, 603 F.2d 566 (5th Cir. 1979), the court declined to draw a distinction between different agencies of the federal government and again imputed the knowledge to the prosecutor. The court concluded that because the prosecutor should have known of the falsehood, the standard was whether it was reasonably likely that the truth would have produced a different verdict. Id. at 570. In that case, the court determined that the evidence would not have produced a different verdict, primarily based upon the fact that the witness' background was exposed during his testimony at trial and it was clear to the jury that the witness was motivated primarily by self-interest. The Fourth Circuit Court of Appeals addressed a similar question in examining whether evidence concerning threats by an F.B.I. agent should have been disclosed in United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976). The court noted in that case that the testimony of the witness in question "turned the government's circumstantial case into an overwhelming one . . . the prosecution falsely assured the jury that no one threatened Cannon (the witness)." Id. at 1241. In that case, the court noted that without the testimony of that particular witness, there was no evidence indicating that the defendant had a purpose of robbing the bank except for the bizarre circumstances in the case which were not necessarily inconsistent with the possibility of innocence. Id. at 1242. Similarly, in United States v. Barham, 595 F.2d 231 (5th Cir. 1979), the court noted that due to the conflicting stories presented, the credibility of the witnesses was all important. Id. at 239. In that case, the court noted that promises were made and the jury never learned of them. In fact, the jury received the opposite impression. The court concluded: In this case, in which credibility weighed so heavily in the balance, we cannot conclude that the jury, had it been given a specific resson to discredit the testimony of these key Government witnesses, would still have found that the Government's case and Barham's guilt had been established beyond a reasonable doubt. Id. at 243. A similar circumstance was presented in another case relied upon by the Petitioner in which the court concluded that the jury was confronted with two irreconcilable stories, each of which had been corroborated. Therefore, the credibility of the witnesses was all important. Blanton v. Blackburn, 494 F. Supp. 895, 898 (M.D. La. 1980). In the instant case, Respondent initially asserts that there was no actual promise or agreement in existence between the state and the witness in question. The witness testified at the original trial in Fulton County that the assistant district attorney had not promised him anything in exchange for his testimony. The witness acknowledged that an escape charge was pending, but gave his explanation as to why he did not even consider it to be actually an escape. (T. 868). The witness also specifically testified that he was hoping he would not be prosecuted for the escape and further stated, "What they tell me, they ain't going to charge me with escape no way." (T. 868). The witness did not contradict this testimony in the state habeas corpus proceeding. His testimony indicated that he thought that the charges had been dropped prior to trial and did not think that he would be charged with them. The most he indicated was that Detective Dorsey would "speak a word" for him. Respondent asserts that this is clearly insufficient to conclude that any understanding or agreement existed which should have been disclosed to the jury. - Respondent additionally urges this Court not to impute any knowledge of any "understanding" to the prosecution. Mr. Parker testified that he was not particularly aware that Detective Dorsey was participating in the investigation of this case; therefore, he could not have known that Detective Dorsey might have made any statements whatsoever to the Petitioner. Finally, if this Court concludes that there was an understanding and that the knowledge of the understanding was imputable to the prosecution, Respondent asserts that there is insufficient evidence to conclude that a new trial is justified. First of all, it is important to note that Offie Evans testified only in rebuttal at trial and was not part of the initial case presented by the state. Secondly, as in the case of United States v. Antone, there was more than adequate evidence presented at trial which would have allowed the jury to conlude that Mr. Evans had been impeached. The district attorney specfically elicited testimony from Mr. Evans concerning his other sentences. It was revealed that Mr. Evans was presently in the Atlanta Federal Penitentiary and was serving a six year sentence for forgery. Mr. Evans also indicated that he had been convicted in 1953 of burglary, 1955 of larceny from a house, 1959 of carrying a concealed weapon and carrying a pistol without a license, in 1961 of burglary, 1962 of forgery, and in 1967 of theft from the United States mail. He also testified that he had been arrested. for escape in 1978. Therefore, as noted by the Court in United States v. Antone, supra, the background of this particular witness was sufficiently exposed so that the jury could determine the motivation and credibility of the witness without needing any further knowledge. No false testimony was presented from the witness in any manner. He testified that he did not believe he was even going to be charged on the escape charge and that he hoped he would not be so charged. Based on all of this information, Respondent asserts that one more factor concerning the credibiity of the witness was not sufficient to conclude that this evidence would be reasonably likely to have produced a different verdict from the jury. United States v. Antone, supra at 570. Respondent also notes that in the instant case the credibility of this witness was not critical as in the other cases in which reversal has been mandated. In Giglio v. United States, supra, the Court noted that when reliability of a given witness may be determinative of guilt or innocence, then non-disclosure of the evidence affecting credibility would require a new trial, but not if the evidence was not likely to change the verdict. Similarly, in United States v. Sutton, the Fourth Circuit Court of Appeals specifically found that the one witness in question changed a circumstantial change into a case involving overwhelming evidence. Without the testimony of that one particular witness, there was no evidence indicating a purpose to rob a bank. In United States v. Barham, supra, the stories presented were conflicting and credibiity was essential. In Blanton v. Blackburn, the petitioner had called numerous alibi witnesses and there was an obvious conflict in the stories which enhanced the importance of the credibility of the witnesses. The court specifically relied upon the fact that there were two irreconcilable stories, each one of which had been corroborated. In the instant case, the credibility of this one witness would not have affected the decision of the jury. Although Mr. «10 Li Evans did present some evidence indicating that the Petitioner was the triggerman and some evidence showing malice, there was clearly an abundance of evidence to establish these factors without the testimony of Mr. Evans. Aside from other circumstantial evidence, there is the testimony of Ben Wright, the co-defendant in this case. Mr. Wright's testimony alone was sufficient to establish that the Petitioner was the triggerman. In regard to this, it is clear that, being presented in rebuttal, Mr. Evans' testimony was at most cumulative of testimony already presented. Therefore, the credibility of this witness did not fall within the same category as that of witnesses in other cases in which the credibility of the one witness in question was the key factor in determining guilt or innocence. Clearly, the credibility of this one witness had been sufficiently drawn into question for the jury and one statement concerning whether a detective would "say a word" for him would not be sufficient to affect the jury's verdict. Therefore, Respondent submits that this allegation is clearly without merit. -11~ THERE WAS NO CONSTITUTIONAL ERROR IN THE FAILURE OF THE TRIAL COURT TO GRANT FUNDS FOR A BALLISTICS EXPERT. (Claim B) Petitioner asserts under Claim B that the trial court should have granted funds for an independent expert to make a ballistics examination. Petitioner asserts that the testimony concerning the identification of the two bullets was subject to varying expert opinion. Therefore, Petitioner asserts that an independent expert should have been appointed. Prior to trial, counsel for the Petitioner filed a motion to proceed in forma pauperis and a motion for funds for expert witnesses. (R. 33). In that motion, although counsel did indicate that the state had used the services of numerous experts, including a ballistics expert, the Petitioner only asked for a professional criminal investigator to assist in developing exculpatory and impeaching evidence and for a trained psychologist or psychiatrist to testify concerning the alleged coercion of the Petitioner's statements. (R. 33-34). No request was made for a ballistics expert. At trial, Kelly Fite testified on behalf of the state concerning the identification of certain bullets. Mr. Fite examined State's Exhibit No. 23 and testified as follows concerning the identification of that bullet: Well, I measured the bullet and it showed it was approximately .357 inches in diameter, which indicated to me that it was probably fired from a .38 Special or a .357 Magnum revolver. I then looked at the lands and grooves structure impressed on the bullet by the bore of the weapon it was fired from. It shows six grooves with a right-hand twist. The grooves on this bullet are approximately .1125 inches which indicates to me that it was probably fired from a Rossi .38 Special revolver. {T. 213). When asked why he thought it was fired from a Rossi, Mr. Fite indicated that it was the only weapon with a specific land width of that dimension. Mr. Fite did indicate that there were several hundred makes of .38 caliber weapons but that the Rossi was the only one that he had found with that type of twist and lands and grooves. (T. 413). Mr. Fite also testified concerning a comparison he did of State's Exhibit No. 5 and State's Exhibit No. 23. He made such a comparison and concluded that "the lands and grooves structure in the small gross and microscopic similarities were identical in both State's Exhibit No. 5 and State's Exhibit No. «13. 23." (TP. 415). Mr. Pite indicated that in his opinion State's Exhibit No. 5 was also fired from a .38 Special Rossi. On cross-examination, counsel for the Petitioner emphasized the fact that the witness stated "probably." Mr. Turner, counsel for the Petitioner, asked why Mr. Fite used the word "probably" and he indicated that this was the only weapon match found on the computer. (T. 419). Based upon this testimony, it is clear that Mr. Fite did not make a positive identification and did not state positively that the bullets were fired from a .38 Rossi, but only indicated that they were probably fired from such a weapon. The deposition of Mr. Fite was taken for purposes of the state habeas corpus hearing. At that time, Mr. Fite testified that he would still say that the bullet fragments were probably fired from a .38 Rossi and that the chances were somewhere between 51 percent and 99 percent. He indicated that it was possible that the murder weapon was one other than a .38 Rossi. He noted that there were a couple of weapons with the same groove structure as the Rossi, one being a Taurus revolver, but he specifically noted that the slippage pattern is somewhat different from a Rossi. Later in his testimony, Mr. Fite also indicated that some early Charter Arms weapons were similar. (Fite Deposition at 6-7). None of this testimony contradicts anything that was stated by Mr. Fite at trial. Once again, Mr. Fite never conclusively stated what the murder ny 1 weapon was, but indicated what his opinion was based on terms of a "propvability." In reviewing this allegation, the state habeas corpus court found as follows: As to a ballistics expert, the State's witness, Kelly Fite, testified that the murder weapon was probably a .38 Rossi, but no weapon was ever recovered or introduced at trial. (BE.T7. 44-43). Mr. Pite stated that his opinion was based on an accumulation of data for several years, plus a check with the F.B.I. record file in Washington. (Fite Deposition, p. 4). Mr. Fite also stated that only two other type weapons were possibilities. (Id., p. 79. Even if another expert had testified, it is doubtful that such testimony could have sufficiently refuted the totality of the evidence against Petitioner. State habeas corpus order at 10. The state habeas corpus court then concluded that Petitioner had demonstrated no special need for the appointment of an investigator and Petitioner had not requested the appointment of a ballistics expert. Therefore, the court w15= concluded that in the absence of a showing of abuse, the decision by the trial court was a proper one. The former Fifth Circuit Court of Appeals considered the issue of the appointment of experts in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975). In that case, the defendant had specifically asked permission of the trial court to allow inspection of the murder weapon and bullet by a ballistics expert of his own choosing. Apparently, the state's expert identified the murder bullet as having been fired by a specific pistol traced to the defendant's possession. Under these facts, the court established the principle requiring the appointment of an expert to "examine a piece of critical evidence whose nature is subject to varying expert opinion.” Id. at 746. The instant case is clearly distinguishable from that in Barnard, supra, in that no specific request for a ballistics expert was made in the instant case and further, the bullet in question in the instant case was not specifically identified as coming from any weapon directly traced to the Petitioner, but was only given a probable identification. Therefore, Respondent submits that the instant case is distinguishable from Barnard v. Henderson, supra. The Fifth Circuit Court of Appeals again addressed the question of the appointment of experts in White v. Maggio, 556 F.2d 1352 (5th Cir. 1977). Once again, the question involved the examination of bullets. In that case, however, a specific “Gwe request had been made prior to trial for access to the bullets in question, unlike the instant case. After concluding that the principles set forth in Barnard v. Henderson were retroactive, the court went on to consider the requirements under Barnard and noted that the writ would issue "only if the state prevented Arsoecticn by defense experts of tangible evidence that is both 'critical' to the conviction and subject to varying expert opinion." White v. Maggio, supra at 1356. The court went on to discuss the meaning of the word "critical" in this context and defined critical evidence for purposes of the due process clause as evidence that "when developed by skilled counsel and experts, could induce a reasonable doubt in the minds of enough jurors to avoid a conviction. (Footnote omitted). When the defense makes a specific request for such evidence, the request should be granted.” Id. at _1357-8. Therefore, in order for evidence to be critical, it must be shown that the evidence could induce a reasonable doubt in the minds of a sufficient number of jurors to avoid a conviction. The court also noted that the defense made a specific request. In the instant case, no specific request was made either for a ballistics expert or for access to the bullets in question. Furthermore, as the testimony by the state's expert was not definite, but only gave a probability, further testimony that the bullets could have been fired from another type of weapon would not be sufficient so as to induce a reasonable doubt in S17 the minds of a sufficient number of jurors to avoid a conviction. Therefore, the evidence in the instant case is not critical within this definition. The court in White v. Maggio went on to note that the court in Barnard established a second prong to the test. "If the evidence were not subject to an interpretation contrary to that of the State, then inspection and testing by the defense would be a useless exercise. The fact-finding process at trial could not be altered." Id. at 1358 n. 7. In the instant case, the Petitioner has asserted that the evidence was subject to varying opinion. This would be a relevant consideration if the state's expert had made a positive identification of the bullet as coming from no weapon other than a .38 Rossi; however, the state's expert indicated that the bullet only "probably" came from a .38 Rossi and did not make a positive identification. Therefore, this is not a relevant issue for consideration in this case. The most that has been asserted is that another expert would testify that the bullets could possibly have come from another weapon. As this does not directly contradict the testimony of Mr. Fite at trial, this does not establish the second prong requiring that the evidence be subject to contrary interpretation. Therefore, no rights were violated under either prong of the test set forth in Barnard, supra. The holding in White v. Maggio was reemphasized by the court in Hoback v. Alabama, 607 F.2d 680 (5th Cir. 1979). That on, Te court noted again the standard requiring that the evidence be such as to have induced a reasonable doubt in the minds of enough jurors so as to avoid a conviction. Id. at 682. Respondent submits that it has been clearly shown that no due process violation has occurred. First of all, Petitioner did not make a specific request for a ballistics expert or for the right to examine the bullets in question. Secondly, Petitioner has not made the required showing that the evidence was "critical" because it has not been shown that evidence would have induced a reasonable doubt in the minds of enough jurors to avoid a conviction. Finally, based on the nature of the testimony given by the state's expert, that is, not being a positive identification, but identifying the bullets as "probably" coming from a certain type of weapon, Respondent submits that this is not testimony as to which an expert would differ. Therefore, no due process violation has been shown and this allegation is without merit. III. THE CHARGE ON INTENT WAS NOT IMPERMISSIBLY BURDEN-SHIFTING. (Claim CC). Petitioner challenges the court's charge at the trial on intent and asserts that the charge given was impermissibly burden-shifting. Petitioner further asserts that none of the decisions since the previous briefs affect the ruling this case. 1G In considering an allegation concerning the charge of the court, it is essential to consider the charge as a whole. Therefore, Respondent will cite pertinent portions of the charge at this time. At the veginning of the charge, the court charged on the presumption of innocence and instructed the jury that the state had the burden of proving each element beyond a reasonable doubt. (T. 988). The court subsequently defined reasonable doubt for the jury. After explaining conspiracy and parties to a crime, the court then proceeded to explain the use of the confession. After these charges were given, the court gave the following instructions concerning criminal intent: Now, in every criminal prosecution, ladies and gentlemen, criminal intent is a necessary and material ingredient thereof. To put it differently, criminal intent is a material and necessary ingredient in any criminal prosecution. I will now try to explain what the law means by criminal intent by reading you two sections of the criminal code dealing with intent and I will tell you how the last section applies to you, the jury. 3 0) One section by law says that the acts of a person of sound mind and discretion are presumed to be the product of a person's will. And a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but both of these presumptions may be rebutted. I charge you, however, that a person will not be presumed to act with criminal intention, but the second code section says that the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted. Now, that second code section I have read you has the term the trier of facts. In this case, ladies and gentlemen, you are the trier of facts, and therefore it is for you, the jury, to determine the question of facts solely from your determination as to whether there was a criminal intention on the part of the defendant, considering the facts and circumstances as disclosed by the evidence ie 3: 1 1 and deductions which might reasonably be drawn from those facts and circumstances. (T. 996-7). Subsequently, the court charged on alibi as a defense. The court then gave a detailed charge on murder, including both felony murder and malice murder. (T. 999). Before relief may be granted in a collateral attack based upon an alleged erroneous jury instruction, it must be found that the instruction so infected the entire trial that the resulting conviction violated due process. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). In making such a determination, it is axiomatic that the trial court's charge must be considered as a whole, with careful intention being afforded to the words actually spoken to the jury. Cupp v. Naughten, 414 U.S. 141, 147 (1973). In examining the instructions for constitutional violations, it is necessary for the court to determine "whether a reasonable jury might fail to understand from the entire charge, that there was a rebuttable presumption of intent or malice and that they were free to weigh all of the evidence." Corn v. Zant, 708 F.2d 549, 558 (llth Cir. 1983), citing, Sandstrom v. Montana, 442 U.S. 510 (1979). Petitioner asserts that this instruction is dissimilar from that in Lamb v. Jernigan, 683 F.2d 1332 (llth Cir. 1982), due to the use of the language "is presumed" rather than "may be presumed." Although the charge in Lamb, supra, is not -22- identical, comments by the court in that case are particularly relevant to the charge in the instant case. In evaluating the charge in that case, the court in Lamb noted that even patently erroneous instructions must be considered in light of the remainder of the entire charge and the entire trial. The court then went on to note the following: The instructions preceding the one at issue informed the jury of the presumption of innocence, and the state's burden of proof beyond a reasonable doubt. (Footnote omitted). Moreover, the jury was specifically instructed that intent is an essential element to be determined by it from the evidence produced at trial . . . . Although these prior instructions were not entirely inconsistent with a conclusive or burden-shifting presumption, cf., Sandstrom v. Montana, 442 U.8. at 518 n. 7, 99 S5.Ct. at 2546 n. 7, they reduced the likelihood that the jury might misinterpret the following instruction as such. In any event, the instruction in this case was not identical to that invalidated in Sandstrom, and we conclude that the differences were constitutionally significant. We 0 Lamb, supra at 1339 (emphasis in original). Although the terms used in the instant case on one occasion did state that intent would be presumed, in considering the charge as a whole, it is clear that this charge, as the charge in Lamb, supra, "was unlikely to be interpreted by reasonable jurors as requiring them to draw an inference of intent." Lamb, supra at 1340 (emphasis in original). The court clearly explained to the jury that the first part of the charge did not necessarily pertain to them, but explained that the second portion of the charge specifically stating that a person would not be presumed to act with criminal intention did apply to the jury. Therefore, the trial court made it clear that the decision as to intent was a factual one to be made by the jury after considering all of the evidence. Therefore, Respondent asserts that the charge in the instant case was not impermissibly burden-shifting as the jury would naturally conclude from the charge as a whole that they were not required to presume intent. Alternatively, Respondent asserts that the charge in the instant case can be found to be harmless error. The Fifth Circuit Court of Appeals has recognized that even a burden-shifting instruction does not necessarily require an automatic reversal if there is evidence before the jury of objective conduct demonstrating criminal intent or evidence of guilt that is so overwhelming that the error could not have been a contributing factor in the jury's decision to convict. See Mason v. Balkcom, 669 F.2d 222, 227 (5th Cir. 1982). The United States Supreme Court also has recognized that under certain circumstances a burden-shifting instruction could be harmless error. See Connecticut v. Johnson, U.S. , 103 S.Ct. 969 (1983). As noted by that Court, "in presenting a defense such as alibi, insanity, or self-defense, a defendant may in some cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless." Id. at 978. In the instant case, the primary defense asserted was one of alibi and mistaken identity. Lack of intent was not a defense utilized at trial. The Petitioner has asserted that he did not commit the crime in question. Therefore, _.as intent was not a primary issue, even if the charge were impermissibly pburden-shifting, it would be harmless error under the facts of this case. Therefore, this allegation is clealy without merit. IV. THE INSTRUCTIONS AT THE SENTENCING PHASE WERE CONSTITUTIONAL. (Claim E). Petitioner asserts that the instructions given at the sentencing phase concerning non-statutory aggravating evidence impermissibly allowed the jury to consider all evidence Oe 10 received throughout the trial. This issue has previously been addressed by the Respondent in the brief in support of Respondent's answer and response dated April 29, 1982. As noted at that time, Petitioner had relied primarily upon Florida cases and Respondent established that the Georgia statute was substantially different from that of Florida. Therefore, the same considerations would not apply. This conclusion has been recently affirmed by the United States Supreme Court in Zant v. Stephens, U.S. 7 +03 S.Ct. me meE—— 2733 (1983). Petitioner intially complains of the consideration of evidence pertaining to other robberies of which Petitioner has not been convicted. It has been clearly shown that this evidence was admitted during the guilt-innocence portion of the trial, not to show that Petitioner was predisposed toward the commission of criminal acts but to establish identity, common plan or scheme, state of mind, motive and intent. (T. 665-666, 723-727, 738-752). The evidence was also admitted to show where Petitioner could have obtained the murder weapon. Furthermore, after Petitioner had taken the witness stand and placed his own character into issue, certified copies of his prior convictions for armed robberies were admissible for impeachment purposes. See Timberlake v. State, 246 Ga. 488(6), 271 S.E.2d 792 (1982). Evidence concerning the participation in the robbery of Dot's Produce was submitted by the state in SG rebuttal only after the Petitioner had previously taken the witness stand and specifically denied his participation in the robbery. (T. 837). The evidence shows that Petitioner was identified as a participant in both the robbery of Dot's Produce and the robbery of the Red Dot Grocery Store. The trial court gave limiting instructions to the jury relating to the consideration of both of these robberies. (T. 673-4, 885). Prior to the deliberations of the jury during the guilt-innocence phase of the trial, the court specifically instructed the jury concerning its use of prior criminal acts. (T. 992-3). Petitioner has noted that the trial court at the sentencing phase instructed the jury to consider "all of the evidence received in court, presented by the state and the defendant throughout the trial." (T. 1028). Neither the Petitioner nor the state presented additional evidence during the sentencing phase of the trial. Petitioner asserts that these particular instructions are impermissible because they allow the jury to consider these prior convictions in aggravation even though they were admitted only for a limited purpose at the guilt-innocence phase. In considering instructions by the trial court, it is imperative that instructions be examined as a whole and in context of the overall trial. United States v. Park, 421 U.S. 658, 674 (1975); Cupp v. Naughten, 414 U.S. 141, 147 (1973). Relief should not be granted in federal habeas corpus “7 proceedings unless the instructions are so defective as to deprive the Petitioner of due process and a fundamentally fair trial. Henderson Vv. Kibbe, 431 U.S. 145, 154 (1977): Bryan Vv. Wainwright, 588 F.2d 1108, 1111 (5th Cir. 1979). In considering these instructions as a whole, it is clear that the trial court had previously instructed the jury as to its consideration of these other crimes. It is essential to consider all portions of the charge, including that given at the guilt-innocence phase. At no time did the court instruct the jury to disregard instructions previously given. Therefore, the jury would clearly understand that the same limitations applied as had applied during the guilt-innocence phase of the trial. Therefore, this court should conclude that the jury properly understood that it was limited in its consideration of these additional crimes at the sentencing phase of the trial. Petitioner also challenges the admission into evidence of specific convictions of other armed robberies. Petitioner makes a general allegation that "the evidence now before this Court suggests that these convictions and life sentences were infirm because of a search and seizure which controvened the Fourth Amendment." (Petitoner's Brief at 7). Respondent submits that the mere suggestion of a possible infirmity in a search and seizure is clearly insufficient to find that the evidence was improperly admitted at trial. Short of a specific <3 | collateral attack on those convictions, and a finding that the convictions were unconstitutional, Respondent submits that this is simply an insufficient showing to justify a conclusion that the evidence was improperly admitted at trial. Further, Petitioner has further cited no authority for the proposition that a subsequent reversal of a conviction utilized as impeachment evidence at trial would justify the reversal of the overall conviction and sentence. In Zant v. Stephens, U.S. , 103. 8.0t. 2733 (1983), the Court noted the Georgia law provided for a wide scope of evidence in regard to aggravation and mitigation. The Court cited to the decision by the Georgia Supreme Court in Fair v. State, 245 Ga. 868, 873, 268 S.E.2d 316 (1980), in which the Georgia Supreme Court noted, "Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of the statute." Under this provision, the evidence in question was clearly admissible at trial, both as impeachment evidence and as evidence in aggravation. Therefore, Respondent submits that all evidence submitted at trial was properly considered by the jury in aggravation of punishment. The jury was authorized to consider any evidence presented at the guilt-innocence phase and was properly instructed as to its consideration of the evidence. The instructions given at the guilt-innocence phase were clearly continuing as to the manner in which certain evidence could be considered. Therefore, Respondent submits that this allegation is without merit. PETITIONER HAS NOT SHOWN THAT THE DEATH PENALTY IS ARBITRARILY AND DISCRIMINATORILY APPLIED. (Claims G and H). Petitioner has asserted that he is entitled to relief based on the administration and application of the death penalty in Georgia. Petitioner has based this on a systemwide challenge to the application of the death penalty in this state. It is well-recognized that "a statute otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race." Washington v. Davis, 426 U.S. 229, 241 (1976), citing, Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). In making a challenge to an action as discriminatory, however, the challenge must go further than simply identifying a disparate impact. There must be proof that the challenged action was a product of discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, supra at 240-42. The Court in Village of Arlington Heights also recognized that it must be established that the challenged decision was at least partially motivated by a discriminatory purpose. Id. at 266. The Fifth Circuit Court of Appeals initially addressed the question of challenges of this nature in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978). The court analogized the challenge to the discriminatory application of the death penalty to an allegation that the death penalty was imposed arbitrarily and capriciously. The court noted the following: To allege discriminatory application of the death penalty, as meant in the context of this case, is to argue that defendants who have murdered whites have received the death penalty when other defendants who have murdered blacks and who are equally or more deserving to die, have received life imprisonment. In order to ascertain through federal habeas corpus proceedings if the death penalty has been discriminatorily imposed upon a petitioner whose murder victim was white, a district court would have to compare the facts and circumstances of petitioner's case with the facts and circumstances of all other Florida death penalty cases involving black victims in order to determine if the first degree =31~ murderers in those cases were equally or more deserving to die. The petitioner thus requests the same type of case-by-case comparison by the federal judiciary that we have previously rejected in considering the petitioner's contention that Florida's death penalty is being imposed arbitrarily and capriciously. We need not repeat the myriad of difficult problems, legal and otherwise, generated by such federal court intrusion il into the substantive decision making of the sentencing process which is reserved to the state courts . . . As we previously noted, this Court reads Furman, Gregg, Proffitt, Jurek, Woodson and Roberts as holding that- if a state follows a properly drawn statute in imposing the death penalty, then the arbitrariness and capriciousness -- and therefore the racial discrimination =-- condemned in Furman (footnote omitted) has been conclusively removed (footnote omitted). Id. at 613-614. The court then went on to address the equal protection claims raised by the Petitioner. The court noted the decisions 3D by the United States Supreme Court in Washington v. Davis, supra and Village of Arlington Heights, supra, in particular the holding of the Supreme Court of the United States in Washington v. Davis that "the central purpose of the Equal Protection Clause of the Fourteenth Amendment is prevention of official conduct discriminating on the basis of race. Our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." Washington v. Davis, supra at 236 (emphasis in original). The Court went on to note that an invidious discriminatory purpose could be inferred from the totality of the relevant facts, but went on to state the following: Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not ~33- trigger the rule . . . that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. Washington v. Davis at 426, quoted in Spinkellink, supra at 615. The United States Supreme Court again reaffirmed the position that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact" in Village of Arlington Heights, supra at 265. The Court specifically concluded that "proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Id. More recently, the Fifth Circuit Court of Appeals addressed the ruling in Spinkellink and concluded, "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 product of. a racially discriminatory intent or purpose." Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. Unit B 1982). Finally, the Eleventh Circuit Court of Appeals again addressed this issue in Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 1983). In that case, the Eleventh Circuit Court of Appeals held: ~34~- Disparate impact alone is insufficient to establish a violation of the Fourteenth Amendment. There must be a showing of an intent to discriminate . . . only if the evidence of disparate impact is so strong that the only permissible inference is one of intentional discrimination will it alone suffice. The court in that decision noted that the Florida statute, like the Georgia statute, was unquestionably neutral on its face and that the petitioner had not shown any evidence that the death sentence in his case was the product of intentional discrimination. Therefore, the court concluded that the allegation was without merit. yi From all the above cases, it is clear that the standard which must be applied in this Court is one requiring proof that the death sentence in the instant case is the product of intentional discrimination. Evidence of disparate impact will only be sufficient if it is so strong that no other possible inference can be drawn except one of intentional discrimination. Respondent asserts that the evidence presented to this Court clearly falls far short of creating a showing of disparate impact so strong as to require the inference of intentional discrimination. Furthermore, Petitioner has not 35 shown any evidence that the death sentence in his case was the product of intentional discrimination. In support of the allegations asserted by the Petitioner, Petitioner introduced the testimony of Professor David C. Baldus and Professor George Woodworth. The testimony indicated that the professors had conducted two separate studies concerning the application of the death penalty in the State of Georgia. Respondent produced evidence analyzing the studies conducted. In conducting the analysis, the Respondent has proposed, as did the state of Florida in the case of Spinkellink v. Wainwright, supra, that the higher proportion of death sentences in white victim cases is caused by legally relevant factors, including the fact that black victim cases are qualitatively different from white victim cases. Therefore, there does exist a lawful explanation unrelated to race for any disparity that exists. In the following protions of this brief, Respondent will analize the various aspects of the studies conducted by Professors Baldus and Woodworth which were presented to this Court. ~36~ A. QUESTIONNAIRE DESIGN. In analyzing the studies of Professors Baldus and Woodworth, it is necessary to analyze the various portions of those studies. The first analysis is directed to the design of the questionnaires utilized. It is essential to examine the way the questions are phrased and the format of proper responses to determine if there are ambiguities and other factors which could reflect on the accuracy and relevancy of the data. 1. The foil method. In the first study utilized by Professor Baldus, that is the Procedural Reform Study, all information was gathered on the questionnaire by use of the foil method. (See Respondent's Exhibit No. 2). For example, in question 26 of Respondent's Exhibit No. 2, the coder of the questionnaire is instructed to enter up to three foils for allegations of whether an offender was engaged in the commission of another offense at the time of the murder. No provision was made for cases in which more than three contemporaneous offenses occurred. Although Professor Baldus has indicated that this information has subsequently been filled in, it does not appear that this has been done based on a reanalysis of the original data sources, but has «37 Li been done based on the case summaries. Therefore, the reliability and completeness of this data is questionable. An additional problem present in the use of the foil method occurs when it cannot be determined whether or not, for example, a contemporaneous offense is committed. In those cases the coder was instructed to complete the foils to indicate that the occurrence of a contemporaneous offense was unknown. The problem with this method is that in the later data analysis, it is impossible to determine whether it was simply unknown as to where one particular contemporaneous offense such as kidnapping occurred, but that it was known that armed robbery did not occur, in contrast to simply being unknown as to whether any contemporaneous offense occured. A similar problem can occur in another circumstance. An example would be if a data collector knew that armed robbery occurred at the time of the murder, but did not know whether rape also occurred. The coder oan indicate that armed robbery occurred, but could not transmit the fact that the occurrence of rape was unknown. Therefore, the case would be coded as if rape simply did not occur, rather than a more accurate unknown status. The data collector cannot differentiate between contemporaneous offenses that did not occur and those whose occurrence is unknown. Therefore, it would seem to indicate that in those cases in which unknowns are reflected, the data collector has only partial knowledge of the cases. This is substantiated by ~38 Respondent's Exhibit 17A which was a table of the unknowns present in the Procedural Reform Study. Although some of these unknowns may not oe significant in the analysis being conducted, it is relevant to know the number of unknowns in order to establish whether the underlying data base is sufficiently accurate to be used in statistical analyses. As this foil method was utilized throughout the Procedural Reform Study questionnaire, it is impossible to tell how many more unknowns actually exist than those listed in Respondent's Exhibit No. 17A. This factor has been corrected somewhat in the questionnaire for the Georgia Charging and Sentencing Study. (See Respondent's Exhibit No. 4). The foil method is still utilized, however, in two exceedingly important questions, that is, question 29, relating to contemporaneous offense at the time of the murder and question 47, part A, relating to special aggravating features of the offense. Therefore, it is quite possible that many cases are actually more aggravated than is reflected in the study. 2. "Other" designation. A second problem in the questionnaires utilized for both Procedural Reform Study and the Charging and Sentencing Study is the use of the "other" designation available for many questions in the studies. An example of this can be found in “-3Q- question 27 of the questionnaire from the Procedural Reform Study which is in the record as Respondent's Exhibit No. 2. Under this question the coder can enter a response as number 17 which provides for "other" motives. The coder then has the option of filling in what the other motive may be. Depending on the case, this code might represent either an aggravated or mitigated motive in this particular question and could be important in explaining the aggravation and mitigation levels of each case. Professor Baldus acknowledged that he had not identified new variables to encompass all of the other designations utilized in the questionnaires. Therefore, it is clear that potentially important aggravating and mitigating factors have not been utilized in the studies. Although the argument is made that these factors do not occur enough times to justify their inclusion, Respondent would assert that one particular factor could be sufficient in any given case to explain the outcome: therefore, it is imperative to include all possible aggravating and mitigating factors. This design problem occurs in numerous questions in the Procedural Reform Study and was also utilized in the Charging and Sentencing Study. 3. Coding of Coperpetrators. Another weakness in the questionnaire design for both studies comes as a direct result of the fact that many murders dil) are committed by two or more coperpetrators. The testimony before this Court was unclear as to the instructions and the intent in the coding of the coperpetrators. Although certain questionnaire items are addressed to the involvement of each coperpetrator, they are not in sufficient detail to differentiate the role of a particular defendant and the extent of his participation in each aggravating circumstance. Given the nature of the data, it is difficult to isolate defendants who might have played a minor role in the murder. A prime example of this coding flaw occurs in the instant case. The Petitioner, Warren McCleskey, was included in the Procedural Reform Study. David Burney, one of the coperpetrators of the offense along with the Petitioner was also included in the Procedural Reform Study. Both questionnaires for the Procedural Reform study were submitted into evidence before this Court. (See Respondent's Exhibits Nos. 1 and 2). An analysis of these two questionnaires is illustrative of the problems created in the coding of coperpetrators. In analyzing these two questionnaires, an example of the problem occurs in question 27 in the motive of the defendant. In both the questionnaire for the Petitioner and for David Burney, two motives were coded, that is, to facilitate obtaining money and to prevent arrest or recapture. In the instant case, as the Petitioner was the only one who “dd Yi participated in the murder, attributing the motive of preventing arrest to David Burney would unduly aggravate the case of the coperpetrator. An examination of question 30 relating to special aggravating and mitigating features of the offense also reflects the problem of coding coperpetrators. In this instance, an examination of Respondent's Exhibit No. 1 shows that David Burney was coded as having an aggravating feature of number "13" which is a case involving a contemporaneous felony and the killing was unnecessary to complete the crime. In Ci examining Respondent's Exhibit No. 2, it can be seen that this particular aggravating feature of the offense was not attributed to the Petitioner in this case, although the Petitioner was the triggerman. Furthermore, the Petitioner was coded with the offense being "bloody" while this aggravating feature of the offense was not attributed to Burney. A further example can be found in question 36 of both questionnaires. This question concerns how many persons were knowingly exposed to a great risk of death by the conduct of the defendant. In Warren McCleskey's case, this particular question was coded as unknown, whereas, in the case of David Burney, this question was coded as seven persons being exposed. This great discrepancy clearly affects the aggravation level attributed to the Petitioner in this case. Furthermore, in the later coding utilized by Professor Baldus, hem this question was utilized in determining if the third statutory aggravating circumstance existed. Under this coding, the Petitioner would not be given this aggravating circumstance, but his coperpetrator, who was not the triggerman, would be given this additional aggravating circumstance. Based upon these coding differences between the two coperpetrators it is clear that great inacearacies exist in the coding of at least these two coperpetrators. This is sufficient to justify a conclusion that other inaccuracies exist in regard to other coperpetrator cases. Even if they do not exist in regard to other cases, these are sufficient discrepancies in regard to the Petitioner's case to justify a conclusion that his data is inaccurate. 4, Coding of Petitioner's Questionnaires. In addition to the above noted discrepancies in the coding of Petitoner's questionnaire in the Procedural Reform Study, discrepancies exist between the coding of the questionnaires in the Procedural Reform Study and the Charging and Sentencing Study. As Professor Baldus still presents data from the Procedural Reform Study, it cannot be discounted. Further, discrepancies are relevant to show the inaccuracy of the underlying data. Furthermore, items are omitted which should reasonably be coded based on the record before this Court from yi Petitioner's trial. In question 30 from the questionnaire of the Procedural Reform Study (Responent's Exhibit No. 2), it previously has been noted that Petitioner was not coded as having a contemporaneous felony with the killing being unnecessary to complete the crime, which could appropriately be coded in the instant case. Furthermore, Petitioner's case also could be accurately coded as having the aggravating feature of "multiple shots to the body." This can be found from the record in the instant case which indicates that the victim was shot in the head and that a second shot was fired hitting the victim in the chest, although it did strike his cigarette lighter. Further, this question does not provide for a situation in which the killing was premeditated, although it may have not been planned for more than five minutes. An arbitrary cutoff point is established pertaining to premeditation which is not justified by any rational factor. An examination of Respondent's Exhibit No. 4, which is the questionnaire from the Charing and Sentencing Study for the Petitioner also shows coding errors. Under question 43 relating to the motive of the defendant, the Petitioner was coded as having panicked at the time of the crime. This is questionable coding based on certain evidence at trial which indicates that the Petitioner may have specifically hidden and ambushed the victim rather than being surprised and panicking. This could be a particular factor which might have included the “44 Petitioner in the lawyer's model submitted by this Court if his case had been coded without this factor. Furthermore, under question 47, part A, there is evidence which should justify coding as a special aggravating feature multiple gunshot wounds. Even though the bullet fired at the chest might not have wounded the victim, there was an attempt to wound the victim with the gunshot. A further aggravating factor which is not included is the fact that the victims of the armed robbery were bound, even though the victim of the murder was not. NO provision is made for this response in the questionnaire. Based on all the above, it can be seen that there are serious problems involved in the questionnaire design in both studies. Not only are the questionnaires themselves flawed in the design, but the coding of the Petitioner's case, in particular, is flawed. This has a serious effect -on the accuracy of the data and should call into question the underlying data base and any resulting analysis conducted using this data base. B. EFFECT OF UNKNOWN ITEMS AND "OTHER" ITEMS IN THE PROCEDURAL REFORM STUDY AND THE CHARGING AND SENTENCING STUDY. In the tables presented by the Respondent in the hearing before this Court, the unknown and "other" items have been listed for both studies. (See Respondent's Exhibits 17A, 18A 45 and 19). Professor Baldus has claimed that both the Procedural Reform Study and the Charging and Sentencing Study are complete and accurate. Based on the unknowns in both studies and the number of "other" items that have not been considered in either study, Respondent submits that the accuracy and completeness of the data are called into serious question. The accuracy is further called into question by noting the number of items in which there are nonmatches between the two studies. While not necessarily asserting that any particular item is inaccurate, Respondent merely points this out as a further indication that the data are not totally reliable and accurate as different items have been coded differently between the two studies. In regard to the unknown items, Professor Baldus has testified that these responses were consistently recoded to have zero values in analyzing the data. Atlhough-it has been asserted that this is a statistically accepted method, Respondent asserts that in the type of study conducted in the instant case where the accuracy and reliability of the data is critical, the recoding unknown values consistently to be zero is not a reliable procedure. What is important in the instant study is what is known to the decision-maker at the time the decision is made. To consistently code unknown items, which appear to be unknown to the coder from the limited information he has available, as zero, i.e., as not occuring, merely assumes that if it is unknown to the coder then it simply did dG "other" itesms into the variable set creates the potential of misrepresentation of the nature of each individual case. Therefore, Respondent would urge this Court to conclude that the data set is insufficiently reliable to be used in making the analysis suggested by Professor BRaldus. C. DATA ANALYSIS IN THE PROCEDURAL REFORM STUDY After recognizing that severe data problems exist in the Procedural Reform Study, Respondent further asserts that even if all of the data assumptions and conventions utilized by Professor Baldus are accepted, the studies have still not provided valid statistical evidence of discrimination based on race of the victim and defendant in the Georgia charging and sentencing system. No valid statistical evidence has been presented which would suggest that a dual sentencing system exists in the State of Georgia based on the race of the victim and defendant. In the testimony presented before this Court, Dr. Joseph Katz testified on behalf of the Respondent. Dr. Katz identified Respondent's Exhibit No. 23, which is a table of variable definitions used by Dr. Katz in his analysis of the Procedural Reform Study. Dr. Katz also identified Respondent's Exhibit No. 24 which is a table of Z values, and comparative p values which he utilized. Professor Baldus generally refers to p values and Dr. Katz refers to Z values although both are not exist and that the decision maker had no information concerning this factor. This overlooks the fact that prosecutors may have information in their files that was unknown to the coder and that juries may have made assumptions from the evidence which the coder concluded represented an unknown. Therefore, the recoding of these unknown values causes potential misrepresentation of the nature of each case in which unknowns exist. In the Georgia Charging and Sentencing Study, despite improvements in the questionnaire design, the additional information provided by the improvements is not utilized in defining variables. In the questionnaire design, there are questions and responses provided to allow for items which are "suggested by the file" and "expressly present in the file." In coding these particular variables, however, the. four available responses are converted into two responses, thereby ignoring the additional information available from the questionnarie. Respondent asserts that the manner of treatment of the unknowns and the "other" items clearly shows that the accuracy and reliability of the data base utilized by Professor Baldus is highly questionable. Although Professor Baldus did apparently make an attempt to gain complete and accurate data, he simply was unable to do so in many areas. The failure to properly consider unknowns and to properly incorporate the dT - accepted statistical methods for showing statistical significance. In general, in the analysis done by Dr. Katz a postive Z score indicates that a higher percentage of white victim cases than black victim cases had a given variable, while a negative Z score indicates the opposite. If the observed percentage difference for a variable yields a Z score greater than 1.645, there is less than a five percent chance that the higher observed percentage of the attribute in white victim cases is caused by random variation. A Z score greater than 2.33 indicates that there is a less than one percent chance that the percentage difference is due to random variation. Similarly, a Z score less than -1.645 means that there is less than a five percent chance that the observed higher percentage of black victim cases with the attribute is due to random variation, whereas a Z score of less than -2.33 indicates less than a one percent chance that the percentage difference is due to random variation. The larger the number is for the positive Z score or the more negative the Z score is, the smaller the probability is that the observed percent difference is due to random variation. Statistically speaking, variables whose Z values are greater than +1.645 or less than -1.645 are said to be significant at the .05 level of significance and variables whose Z values are greater than +2.33 or less than -2.33 are said to be significant at the .0l level of signficiance. 40 In analyzing the data in the Procedural Reform Study, Respondent proposes that the logical conclusion from Professor Baldus' hypothesis is that a higher degree of aggravation will be tolerated in black victim cases than in white victim cases, this being the logical extension of the theory that white victim cases are punished more severely than black victim cases. Therefore, if the hypothesis of Professor Baldus holds true, then one would expect that as cases are moved through the system, black victim cases with higher levels of aggravation will not be punished as severely as white victim cases. Therefore, at the same level of punishment, under the theory of Professor Baldus, until a death penalty is reached, black victim cases should be more aggravated than white victim cases because the more aggravated white victim cases would have been punished more harshly. : his Dr. Katz made an examination of the data from this prospective. The tables introduced concerning the Procedural Reform Study indicate that the contrary is true. Respondent's Exhibit No. 25 was introduced to show the initial tabulations done concerning black victim cases and white victim cases utilizing the variables previously set forth in Respondent's Exhibit No. 23. Comparisons were simply done to examine the presence or absence of aggravating and mitigating factors. As is shown in Respondent's Exhibit No. 26, more aggravating factors appear more often in white victim cases than in black -50- victim cases with the percentage difference being statistically significant in quite a number of variables. In contrast, mitigating factors appear more often in black victim cases as is shown by the number of mitigating variables whose percent difference is statistically significant. Based on this calculation, it appears that overall, white victim cases are more aggravated and black victim cases are more mitigated. Under this calculation, it appears that the data in the Procedural Reform Study, even if it is accepted as accurate, shows that white victim cases are systematically and significantly more aggravated and less mitigated than black victim cases and, thus, are qualitatively different. A key factor in the analysis conducted by Professor Baldus relates to the matching of similar cases in terms of relevant factors. Dr. Katz conceded that this could be an-acceptable statistical method for testing for disparate treatment between groups; however, due to the fact that white victim cases are systematically worse than black victim cases, and given the assumptions utilized in defining variables in the Procedural Reform Study, he concluded it is difficult to determine that the populations are matched as closely as possible on aggravating and mitigating factors. Professor Baldus initially compared cases based on the statutory aggravating factors. This Court noted that this comparison by itself was clearly insufficient to make any We relevant showing. In examining this analysis, it is clear that white victim cases and black victim cases are not matched by utilizing only the statutory aggravating factors. Comparison of the variables in the cases in which statutory aggravating factor B2 occurred clearly shows that the white victim cases are still more aggravated and less mitigated than the black victim cases. (See Respondent's Exhibit No. 28). Thus, the fact that these extreme differences in mitigation and aggravation levels exist between black victim and white victim cases prevents any significance from attaching to any disparity that may exist in the sentencing rate when the analysis is done based on the statutory aggravating factors. Similar comparisons were done by Dr. Katz on cases with other aggravating factors and the same results were obtained. (See Respondent's Exhibits Nos. 29, 30, 31, 32, 33 and-34). Therefore, this method of case comparison clearly does not produce cases which are similar and does not provide a reliable basis for making any kind of analysis of any race of victim effect. Furthermore, as was noted earlier in the discussion of the questionnaire design in the Procedural Reform Study, the aggravating factors may tend to be understated; therefore, it is highly likely that there may be more aggravating factors in which the percentage difference is statistically significant in the direction of white victim cases. <5. Professor Baldus next examined cases and attempted to compare cases based on the number of statutory aggravating circumstances present. Again, a disparity was noted in the sentencing rate between white victim cases and black victim cases in certain areas. Only cases in which three or four statutory aggravating factors were present is the difference statistically significant at the .05 level. (See Respondent's Bxhibit No. 35), A further breakdown of these two particular categories shows once again that white victim cases are systematically more aggravated than black victim cases. Respondent's Exhibits 36 and 37 clearly show that even in cases in which exactly three statutory aggravating circumstances occurred or exactly four statutory aggravating circumstances occurred, the white victim cases have systematically more aggravating-features than the black victim cases. In the mitigating factors examination there are some mitigating factors which appear more often in white victim cases and some in which the difference is statistically significant in favor of the black victim cases when there are three statutory aggravating circumstances. When there are four statutory aggravating circumstances, again, the white victim cases have a few more aggravating factors with statitstically significant differences than do black victim cases and black victim cases have more mitigating factors with statistically significant differences than do white victim cases. -B Sm Professor Baldus and his co-authors utilized two other analyses in evaluating the data, that is, the index method and the multiple regressions. Multiple regression is a technique that attempts to predict the outcome variable by assigning weights to the predicting variables in a manner that minimizes the sum of the squared error between the actual outcome and the predicted outcome. According to Dr. Katz, however, regression cannot be reasonably applied to build aggravation and mitigation indexes in the instant case. One of the main problems encountered in using multiple regression is the fact that multiple regression is a "data intensive” technique which requires accurate and complete data on each outcome and predictor variable. As was indicated previously, many variables in the Procedural Reform Study are completely unknown and other factors are present which call into question the accuracy and reliability of the data. Thus, multiple regression does not appear to be an appropriate technique to be used in evaluating the data in question. There is also a theoretical or conceptual problem with using predicted outcomes from a regression model to build an aggravation and mitigation index. Regression is a multivariate technique that attempts to explain an outcome variable, in this case sentencing outcomes, by weighting the set of predictor variables that are provided by the analyst. The criteria that the regression uses in assigning these weights is based on minimizing the sum of the square of the differences between the actual outcomes and the predicted outcomes or index values. Essentially, as Dr. Katz testified, the regression procedure weights the available predictor variable to make the predicted outcomes or index values as close as possible to the actual outcomes regardless of the sense of the variables. As testified by Dr. Katz, if the regression model is completely successful in accomplishing this objective, then the resulting predicted outcome or index value will exactly equal the actual sentencing outcomes. In fact, the relative position of the index values for individual cases can significantly change depending on the set of predictor variables that are made available to the regression equation as independent variables. Therefore, Dr. Katz' testimony indicates that the index utilized by Professor Baldus is not statistically meaningful. Dr. Katz utilized an experiment to illustrate the point made. The results of this experiment are shown in Respondent's Exhibit No. 39. Dr. Katz specifically testified that this experiment was not meant to be meaningful, but was only utilized as an example to show how regressions work. As testified by Dr. Katz, the R-square which is indicated in Respondent's Exhibit No. 39 is a measure of how close the predicted outcomes are to the actual sentencing outcomes. Therefore, the higher the R-square of a regression model, the more likely it is that the predicted outcomes will have been SEB. separated out so that all the death sentence cases have predicted outcomes close to one and all life sentence cases have predicted outcomes close to zero. Dr. Katz also compiled tables of potential predicted outcomes utilizing his experimental regressions. As noted in these tables, the relative aggravation or mitigation level switches between cases from one regression to the next. The table present in Respondent's Exhibit No. 40 clearly shows that the switching of index value levels is a common occurrence. As Dr. Katz noted, relative index values will be affected by the set of predictor variables that were available to the regression and the proportion of variation accounted for by the regression equation, as the higher the R-square value, the more the predicted outcomes will approximate the actual outcomes. Thus, the index value utilized by Professor Baldus can be influenced to a great degree by the choice of independent variables that are used in the model and the resulting size of the R-square value. Professor Baldus also utilized a cross-tabulation method in his analysis. As noted by Professor Baldus, as you examine the cases and include more factors, the sample size becomes sO small that any differences are not statistically significant. Based on the sample size in question, a cross-tabulation method is not useful as the cell sizes do not have sufficient numbers of cases to make any realistic statistical examinations. -56- Dr. Katz testified that he conducted a separate analysis on the data in the Procedural Reform Study, even though he cautioned that the analysis could be tainted due to the high level of unknowns and the internal inconsistencies. In making the analysis, Dr. Katz broke the cases down according to sentencing outcome and examined the cases to determine if the Georgia charging and sentencing system assigned death penalties to more aggravated cases or whether the death sentences were given arbitrarily without regard to aggravating and mitigating circumstances. Respondent's Exhibit No. 41 shows an examination of life sentence and death sentence cases in the Procedural Reform Study based on the aggravating and mitigating factors previously defined in Respondent's Exhibit No. 23. Based on this breakdown, it does appear that the death sentence cases as a population appear to be systematically more aggravated and less mitigated than the life sentence cases. As noted previously by the Respondent, if indeed a discriminatory system as hypothesized by Dr. Baldus did exist, then higher levels of aggravation would be tolerated for the defendants in black victim cases than defendants in white victim cases. Therefore, a natural conclusion would be that defendants of aggravated black victim cases who deserved more severe sentences would have received lesser sentences, 1i.e., life sentences. If prosecutors and juries have overpursued S87 defendants in white victim cases, thereby tolerating low levels of aggravation, then logically the white victim cases that remain as life sentence cases would appear to be highly mitigated in comparison to the black victim cases with life sentences. As noted earlier, the logical conclusion under this hypothesis would be that the black victim life sentence cases would be significantly more aggravated than white victim life sentence cases. The exhibits submitted by the Respondent clearly show that this hypothesis is not supported by the data. Respondent's Exhibit No. 42 shows an analysis of white and black victim cases in which the defendants received life sentences. Respondenils myinit No. 43 breaks down the percentage differences in the variables based on statistically significant differences. It can be seen from this exhibit that in those cases in which life sentences were imposed, white victim cases are still systematically more aggravated and less mitigated than black victim cases. Threfore, it is clear that the more aggravated black victim cases are not being left behind as life sentence cases. A similar comparison was made on life sentence cases in which there was no penalty trial and the same result was obtained. (See Respondent's Exhibits Nos. 44 and 45). Thus, in examining the analysis conducted by Dr. Katz, the only logical conclusion to be reached from the Procedural Reform Study, even if the data is considered to be accurate and “58. the convention of recording unknowns to be zero is allowed, is that white victim cases are more aggravated and less mitigated overall than black victim cases. This factor alone is sufficient to be at least a possible explanation for the higher death sentencing rate in white victim cases due to the qualitative difference in white and black victim cases. No testing by Professor Baldus and his co-authors has disproved this hypothesis. Therefore, Respondent asserts that, as to the data in the Procedural Reform Study, this alternate possibility serves as a rebuttal to the evidence presented by the Petitioner. -590- D. CHARGING AND SENTENCING STUDY 1. Sample Dessign. The Charging and Sentencing Study was conducted utilizing a sample, rather than the entire available universe of cases. The Charging and Sentencing Study was designed to include cases in which voluntary manslaughter was also a possible verdict. An attempt was made by Professors Baldus and Woodworth to use a stratified random sampling technique in the Charging and Sentencing Study. This technique attempts to use additional information concerning the population being studied to increase the precision of the estimates of the variable or variables under consideration. The stratified proportion estimate is calculated by weighting the sample proportion in each stratum by the proportion of the total population that each stratum represents. In general, the stratification design will effectively increase the precision of the estimates compared to simple random sampling estimates, if the population can be broken down into components or strata whose observations are similar with respect to the variable of interest within the stratum and observations are generally dissimilar with respect to the variable of interest between stratum. As noted by Dr. Katz the precision of the estimates will be better than simple random sampling only if the stratum are generally homogeneous within and hetrogeneous between the stratum in terms of the variable of interest. Dr. Katz testified concerning the stratification technique. This stratification design requires additional information which is not required for a simple random sampling technique. Proportion or relative weight of a particular stratum to the population must be known beforehand. If the weights for each stratum are not known exactly, they could be estimated from the sample; however, the use of estimated weights rather than exact stratum weights lowers the precision of the stratified estimates. It appears from the sampling technique utilized that the population has been stratified at least partially based on judicial circuit and by sentencing outcome. No reason has been indicated which would justify a stratification based on judicial circuit. Other problems exist with the stratification method utilized because precise information is required in order to calculate the relative weights. If the weights are unknown, much of the increased precision from using a stratified design can be lost. The sampling procedure was designed to collect all life sentence cases that advanced to a penalty trial; however, it is uncertain as to whether all life sentence penalty trial cases were even obtained as there are unknowns in this category. This could affect the weights utilized in the sampling procedure. All of the above calls into question the entire sampling procedure utilized in the Charging and Sentencing Study. -6l1- 2. Analysis of Data in the Charging and Sentencing Study. A similar analysis of the data in the Georgia Charging and Sentencing Study was conducted by Dr. Katz as that done for the Procedural Reform Study. Respondent's Exhibit No. 46 lists the variables utilized in Dr. Katz' later analysis. An examination was also made of the Charging and Sentencing Study for unknown items present in the study similar to that done previously for the Procedural Reform Study. As noted by Dr. Katz, the unknowns of the present study prevent the use of multivariate statistical analysis techniques in any meaningful fashion. Therefore, Dr. Katz analyzed the data based on the same analysis previously used. Initially an examination was made of the data in the Georgia Charging and Sentencing Study based on sentencing outcome. Respondent's Exhibit No. 48 indicates that the population of defendants receiving life sentences for voluntary manslaughter tends to be less aggravated and more mitigated than the population of defendants receiving life sentences. This second population is in turn less aggravated and more mitigated than the population of defendants receiving death sentences. Therefore, as a whole, it appears that defendants received sentences according to the level of aggravation and mitigation present. ty In examining race of victim disparities, Dr. Katz' analysis matched cases by sentence rather than aggravating and mitigating factors, once again based on the logical conclusion that if the hypothesis presented by Professor Baldus holds true, then higher levels of aggravation would be tolerated for defendants in black victim cases as compared to defendants in white victim cases before a more severe sentence would be sought or imposed. The final logical conclusion from this hypothesis is that, if there is actual discrimination based on race of the victim, then the defendants in categories with lower sentences in black victim cases should display systematically more aggravated and less mitigated factors than the defendants in white victim cases with the same sentences. Using the variables previously set forth, a comparison was done of all cases based on the race of the victim. This can be found in Respondent's Exhibit No. 49. In Respondent's Exhibit No. 50, those cases in which the differences were significant are noted. Again it can be seen that white victim cases have a higher proportion of a preponderance of aggravating factors than do black victim cases, while black victim cases have a higher proportion of a preponderance of mitigating factors than do white victim cases. Therefore, again white victim cases appear to be systematically more aggravated and less mitigated than black victim cases. ~63~ The same examination was conducted based on sentencing outcomes. A comparison was done by race of victim for cases receiving sentences for voluntary manslaughter in the Charging and Sentencing Study. Again from Respondent's Exhibit No. 52, it can be seen that white victim cases are systematically more aggravated than black victim cases. The mitigating factors are divided fairly evenly between white victim cases and black victim cases in this particular category. The main consideration to be found from this examination is that black victim cases are clearly not significantly worse than white victim cases; therefore, the more aggravated black victim cases have not been left behind with sentences of voluntary manslaughter, but have been moved through the system as have white victim cases. A similar analysis was conducted on life sentence cases which again revealed that white victim cases were systematically more aggravated and less mitigated than the black victim cases. (See Respondent's Exhibit No. 54). The same conclusion was found in regard to life sentence cases with no penalty trials. (See Respondent's Exhibit No. 56). In this instance, white victim cases are systematically more aggravated, although mitigating factors are fairly evenly distributed as far as those with significant differences between black and white victim cases. (See Respondent's Exhibit No. 58). rh | Life sentence penalty trial cases were also examined. In these cases, variables with significant differences appear both in white victim cases and black victim cases in the aggravating and mitigating areas. The same conclusion can still be drawn, however, that is, black victim cases do not appear to be more aggravated and less mitigated than white victim cases. Therefore, the more aggravated black victim cases are not being left behind in the sentencing process. A final examination of the death sentence cases indicates that white victim cases continue to be more aggravated than black victim cases. Based on all the above and on the testimony of Dr. Katz, it is clear that white victim cases are systematically more aggravated than black victim cases. Even a breakdown by sentencing outcome reveals that the cases are generally pursued through the system based on their levels of aggravation and mitigation. The more aggravated black victim cases are not left behind as voluntary manslaughter cases or life sentence cases, contrary to the logical conclusion to be drawn from Professor Baldus' hypothesis. Therefore, Respondent asserts that the Georgia charging and sentencing system appropriately functions according to the levels of aggravation and mitigation present in each case. In a further analysis, Dr. Katz broke down the cases based on the defendant-victim racial combination. These breakdowns “ES are seen in Respondent's Exhibits Nos. 62, 63, 64, and 65. Again, the same pattern emerges when the cases are broken down on defendant-victim racial combination. The cases with black defendants and white victims tend to be more aggravated than other cases. Thus, Respondent asserts that, similar to the case of Spinkellink v. Wainwright, supra, the showing has been made that cases with black defendants and white victims are qualitatively different from other defendant-victim racial combinations. | Petitioner attempted to break down the data based on Fulton County and establish similar disparities in Fulton County. Although the number of cases is not sufficient to actually make a clear-cut statistical analysis, Bedbondsnt asserts that the data presented by the Respondent clearly shows a continuing pattern in which black defendant-white victim cases are qualitatively different, that is, more aggravated, from other cases. E. GENERAL CRITICISMS OF PROFESSOR BALDUS' ANALYSIS. In the brief submitted to this Court, citations have been made to cases in which the book authored by Professor Baldus has been cited. It is important to note that even in his book Professor Baldus recognized that there are limitations on the use of quantitative proof. "The primary limitation of quantitative proof in the discrimination context is its -66— Li inability to support an inference about the reasons for a particular decision . . a D. Baldus and J. Cole, Statistical Proof of Discrimination, § 0.2 at 5 (1980). It was also noted in the same text, "a second major problem with quantitative proof is its complexity and potential unreliability if improperly applied or interpreted." Id. It was also noted that statistical arguments can also provide the wrong answer to the right question or the right answer to an irrelevant question if improperly used. "The result can distort, oversimplify and misinterpret the facts of the case." Id at 6. Respondent submits that many underlying defects exist in the data base itself which do call into question the reliability of the statistical results obtained by Professor Baldus in his study. This portion of the brief, Respondent will attempt to highlight the major criticisms pertaining to the data base itself. The testimony before this Court indicated that Professor Baldus initially began with a Supreme Court questionnaire. It was specifically testified that later refinements of the questionnaire required the elimination of certain questionnaire items, including what information was known to the decision-maker at the time of the decision. It was conceded that this evidence could be relevant, but it was noted that it was simply too difficult to obtain this information. Clearly, -67- this does suggest the availability of more variables which could be utilized in making the analysis. Furthermore, Professor Baldus added new variables in the Charging and Sentencing Study, again indicating that there are more items available for examination than have been included. Another fundamental problem with the data source is the use of secondary data sources rather than primary ones. Respondent has not attempted to point out inaccuracies per se in the data sources themselves, but merely notes that the more appropriate source or the best source would be the decision-makers themselves, or at least the district attorneys, to obtain the information actually known, rather than some secondary source, such as trial transcripts or reports prepared after the conclusion of trials. These reports do not necessarily reflect what was known at the time the decision was made. - The use of multiple regressions in the instant case creates numerous problems. Multicolinearity causes distinct problems in the use of multiple regressions. It has not been sufficiently shown that these problems were taken into consideration in the use of multiple regressions in this case. Tables of Professor Baldus indicate that race of victim is highly corrolated with certain specific aggravating factors. This can have a distinct effect on the regression coefficients. Professor Baldus and Professor Cole recognized that multiple regression models can never conclusively prove -68—- anything. Statistical Proof of Discrimination § 8.02 at 253. This same book also notes that to the extent that there is error in the measures used or the data analyzed, the validity of the results in multiple regressions will be effected. Professor Baldus also failed to sufficiently define interaction variables. For example, the regressions treat all armed robberies alike, whereas, in reality, there are different "degrees" of armed robbery. Interaction variables can be defined to consider the effect of the presence of another factor, such as, binding and gagging the victims, which would tend to make the armed robbery appear "worse." The failure to sufficiently include such variables creates serious problems with the validity of the analysis. F. CONCLUSION Respondent has previously noted the numerous problems inherent in the studies conducted by Professors Baldus and Woodworth. Additionally, certain problems can logically be seen from a mere examination of the information obtained and utilized. Critical to a determination of the reasoning behind a particular decision is a focus on the decision-maker. In this case, the decision-maker would be either the prosecutor or the jury. In order to ascertain what may have affected that decision, it is imperative to know what information was known -69- to the particular decision-maker at the time the decision was made. For example, if a defendant confessed prior to trial, but such confession was never admitted at the trial, it would be important in determining what affected the jury's decision to know that the jury did not have access to that confession. Professor Baldus has not made breakdowns of the data on this basis. Atlhough the Supreme Court questionnaire initially was designed to obtain data on this point, this idea was abandoned because of the difficulty in chtaning. this information. The mere fact that the information is difficult to obtain is not sufficient to conclude that it is not a vital consideration. Respondent would submit that absent knowledge of what was known to the decision-maker at the time the decision was made, no reliable determination can be made as to what items may have affected that decision. Therefore, Respondent submits that the entire analysis is fatally flawed on this basis. Professor Baldus also submits that he has tested for well over 200 variables in the Charging and Sentencing Study. As noted previously, many items are unknown in certain cases and certain "other" designations have been omitted from consideration in the study. In death penalty cases, as noted by this Court during the hearings, there are likely to be some unique factors present in individual cases which account for the imposition of the sentence. The mere fact that a certain factor occurs in only one case is not sufficient to justify 7 CQ excluding it from consideration in the study as that may be the one factor that accounts for the imposition of the death penalty in that particular case. Therefore, this could discount any possible race of victim or race of defendant effects that might otherwise appear. There is no way in doing a statistical study of this sort to account for unique factors in each case which would no doubt affect the decision to impose or not to impose the death penalty. As noted by the United States Supreme Court in Zant v. Stephens, U.S. +103 S.Ct. 2253 (1983), Georgia juries are allowed to consider all factors in aggravation and mitigation. This does not mean that the sentence is arbitrary or capricious, but rather allows the jury, once a statutory aggravating factor has been found beyond a reasonable doubt, to consider anything else that might be relevant to the defendant or the crime in determining whether to impose a death sentence. Due to the fact that this is allowed, one small mitigating factor could be the reason the death sentence was not imposed in a particular case. In a study such as the one undertaken in the instant case, there is no way that these unique factors can be taken into account. A final important factor overlooked in the analysis in the instant case is the subjective factors which cannot be measured by a statistical study. Initially in the decision of the prosecutor, certain factors are obviously important to a decision as to whether to proceed to a trial or to accept a iy ki guilty plea, or whether to seek a death penalty. A prosecutor obviously consider such things as the strength of the evidence. Professor Baldus indicated that they attempted to account for strength of the evidence variables, but very little attention has been paid to these alleged variables. Without knowing what was considered by the prosecutor in his decision no realistic analysis can be made of the decision of the prosecutor. The prosecutor obviously considers the credibility of witnesses, the availability of evidence to impeach prosecution witnesses, the certainty of the identification by a witness, the ability of witnesses to withstand cross-examination from the defense as well as the culpability of the individual defendant. Prosecutors may decide to accept a plea of guilty in exchange for the testimony of a particular defendant when the case against that particular defendant is not particularly strong. These are relevant factors in making the prosecutorial decisions, which are not appropriately accounted for in the study by Professor Baldus. Subjective factors also come into play in the jury's decision as to whether to impose the death sentence. Once again, the jury is allowed to consider all factors in aggravation and mitigation once they find the existence of a statutory aggravating circumstance beyond reasonable doubt. There is RE CAY a statistical study can take into account the jury's evaluation of the defendant as he sits in the courtroom -72- during the trial and his demeanor as it appears to the jury. The jury may well decide from merely observing a particular defendant and his reactions throughout the trial that he is remorseful and does not deserve a death sentence or, on the other hand that he is completely unconcerned about the victim in the case. Such factors as whether a defendant might break down and cry in the courtroom or, to the contrary, fall asleep while witnesses testify, would be factors which a jury would necessarily consider in evaluating the credibility of the defendant and in evaluating his personal culpability in the crime. This same analysis would necessarily be applied by the jurors to those witnesses who testified in making an assessment of their credibility in the case. Once again, there is simply no way to account for these types of considerations in making a statistical analysis. As long as jurors are allowed to consider these types of factors, which are constitutionally permissible, then any study which ignores these totally relevant and pertinent factors can hardly be reflective of factors which affect the sentencing outcome. Respondent submits to this Court that the statistical analysis attempted in the instant case is simply inappropriate for the question presented. Statistical analyses have their place in decision-making situations in which the effects are random or in which there are a finite number variables to be taken into account. In a situation such as the instant case 73 when there are almost an infinite number of small factors which could be taken into consideration by a jury or by a prosecutor in making a decision, particularly in the mid-range of cases, a statistical study attempting to evaluate the charging and sentencing system based on a limited number of factors simply is inappropriate and is insufficient to support a finding of potential discrimination. This is particularly true in light of the evidence presented to show the qualitative difference in the types of crimes committed based on the race of the victim and the race of the defendant. In conclusion, Respondent submits that Petitioner has simply failed to carry his burden of establishing intentional and purposeful discrimination in the instant case. Although disparities in sentencing rates have been established, disparate impact alone is clearly insufficient to establish proof of intentional discrimination. Based on the inadequacies and inaccuracies in the underlying data base, the subsequent statistical analyses are not sufficiently reliable to justify any conclusions relating to any potential discrimination in the system. Therefore, Respondent would urge this Court to conclude that Petitioner has failed to estabish intentional and purposeful discrimination as required by the cases of this Circuit. Whe 7 LW VI. THE IDENTIFICATION TESTIMONY WAS PROPERLY ADMITTED AT TRIAL. (Claim M). Petitioner challenges the admission of identification testimony at trial, asserting that said testimony was impermissibly tainted based on a lineup procedure conducted shortly before trial. Respondent submits that the in-court identifications by various witnesses were properly admitted into evidence and no showing has been made which would justify a conclusion that the in-court identifications were impermissibly tainted. This issue was first presented on direct appeal to the Supreme Court of Georgia at which time the Petitioner had complained that the prosecution conducted an {11e4a} post-indictment lineup without the knowledge, consent or presence of counsel. That court concluded that the record simply did not support that contention. The court found the following: The record shows that four witnesses immediately prior to the call of the case saw the appellant and four other persons sitting in the jury box guarded by deputy sheriffs. Each of these witnesses testified 75 - that they recognized the appellant as one of the robbers at the time they saw him seated in the jury box. There is no indication that the witnesses were asked to view the men seated in the jury box and see if they recognized anyone. No one pointed out the appellant as the defendant in the case, rather it is apparent from the witnesses testimony that each recognized the appellant from having viewed him at the scene of the respective robberies. Therefore, no illegal post-indictment lineup occurred. McCleskey v. State, 245 Ga. 108, 110, 263 S.E.2d 146 (1980). After making this initial factual finding, the court went on to discuss the question of whether the identification procedure prior to trial was impermissibly suggestive. The court concluded that the mere chance viewing of Petitioner prior to trial as he was sitting with other individuals was not impermissibly suggestive. The court also specifically found that the identifications were not tainted by any police jdentification procedures. Respondent submits that these findings by the Supreme Court of Georgia are clearly supported by the record. The mere fact that the Petitioner might have been sitting in the jury box with other individuals and that certain witnesses might have had a chance viewing of him is -76- insufficient to conclude that an inpernissibly suggestive identification procedure took place. No evidence has been shown which would establish that anyone was pointed out to any of the witnesses or that they were specifically asked to view these persons in the nature of a lineup. This is clearly not the type of situation condemned in United States v. Wade, 388 U.S. 218 (1967). As this was a mere chance identification and not a lineup, there was no right to counsel which would have attached to this chance viewing. Even if this Court concluded that the chance viewing was unnecessarily suggestive, there still must be an inquiry as to whether the in-court identification was of a sufficient independent origin so as to avoid a substantial likelihood of misidentification. This determination must be made based on an examination of the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 198-9 (1972). Therefore, it is essential to examine the identification by each witness individually. This analysis was conducted by the Supreme Court of Georgia. In considering witness Classie Barnwell, the Supreme Court of Georgia found the following: Classie Barnwell, an employee of the Dixie Furniture Store testified that the appellant was the man who came in the front door and participated in the robbery. This witness 7 F- had been exposed to photographic lineups on two occasions and had seen the appellant's picture in the paper. However, she testified that she did not recognize any pictures as being the robbery suspect. There is no evidence that the appellant's picture was in any of the photographic lineups. She testified further that although the newspaper picture looked familiar, it was "vague" and she could not recognize the appellant from it. She was able to identify the appellant in person and was certain of her in-court identification. There is no evidence that the photographic identification procedure used by the police with this witness was impermissibly suggestive. The newspaper picture may have been suggestive. However, the question is whether under the "totality of the circumstances" the witness was irrevocably committed to the desired identification by the identification procedure used. (cites omitted). Here the victim based her in-court identification testimony upon her observation of the appellant for some five Wi J x \ to ten minutes during the robbery. Her identification of the appellant had an independent basis other than the viewing of a newspaper photograph that only looked familiar to her. McCleskey v. State, supra at 110-111. Ms. Barnwell also testified at the state habeas corpus hearing. Her testimony in that court showed that she based her in-court identification of the Petitioner upon her observations of him at the scene of the crime. (H.T. 113-114). At trial, Ms. Barnwell stated that she had an opportunity to view the Petitioner on the day of the robbery when he came through the front door and held a gun in her face. She stated that she had a good opportunity to view him and that she gave a description of him to the police. As part of her description Re the police after the robbery, she indicated that Petitioner had a mustache, was light-skinned and was wearing shaded glasses. The record simply does not indicate whether Ms. Barnwell provided the police with any further details of Petitioner's description. Ms. Barnwell testified that she did not go to the Petitioner's preliminary hearing and only participated in one lineup which was held within approximately one week of the robbery. (T. 231, 238). She did not identify the Petitioner from the lineup and there was no evidence that the Petitioner actually participated in that lineup. -79—~- Ms. Barnwell stated that during the morning immediately prior to trial, and while in the courtroom, she did observe three people whom she recognized. (T. 229-231, 232, 240, 248). One of the persons whom she observed in the courtroom was the Petitioner. She recognized him as the man she had seen during the robbery. She also observed two other people sitting near the Petitioner in the jury box. She indicated that these persons had also been in the Dixie Furniture Store prior to the robbery. (T. 229-230). Ms. Barnwell indicated hat when she identified the three individuals in the courtroom prior to trial, the courtroom was not quite full: however, there were two or three times as many people present as there were at the time she was testifying. (T. 248-249). Based upon this above testimony, it is clear that Ms. Barnwell's identification at trial was based on hex observations of the Petitioner at the time of the crime. She clearly had an opportunity to view the Petitioner at the time of the crime and was clearly paying attention at that time. The description that is in the record that was given by Ms. Barnwell is accurate and she demonstrated complete certainty at the time of the confrontation in question. Furthermore, Ms. Barnwell had not made any prior misidentifications. Therefore, it is clear that any possible suggestiveness that could have occurred based on any alleged pretrial identification procedures did not taint the in-court identification by Ms. Barnwell. To I Mr. Paul David Ross also testified concerning an identification of the Petitioner. Mr. Ross was the manager of the Red Dot Grocery Store and testified that Petitioner had participated in a robbery of that store on April 1, 1978. (T. 723, 727). The Supreme Court of Georgia considered the identification by Mr. Ross and found the following: David Ross viewed the appellant in a series of black and white photographs and another series of color photographs. He was able to identify the appellant from the color photographs, but not from the black and white. There is no showing that the array of photographs exhibited to this witness was impermissibly suggestive. (Cite omitted). - This witness saw but did not recognize the picture of the appellant published in the newspaper. He was also one of four witnesses who saw the appellant in the jury box immediately prior to trial. He testified he recognized the Appellant from having seen him as he walked past him immediately prior to the robbery of the Red Dot Grocery Store. His in-court identification of the Appellant had an independent basis other than the photographs and was properly submitted to the jury. nS] - McCleskey v. State, supra, 245 Ga. at 112. The testimony at trial indicates that Mr. Ross had never participated in viewing a live lineup and was not present at Petitioner's preliminary hearing. (T. 736). His first live viewing of the Petitioner was in the courtroom on Monday morning during calendar call. Mr. Ross testified that Petitioner had been sitting in the jury box with five others and that the courtroom was quite crowded. Mr. Ross was positive that the Petitioner was the same man who had robbed the Red Dot. Grocerv. (T. 737). Respondent submits that this evidence clearly shows that Mr. Ross' identification was based on his observations of the Petitioner at the time of the crime and not on any pretrial identification procedure. Mr. Ross had an adequate opportunity to view the Petitioner at the time of this crime and clearly based his identification on that viewing. Mr. Ross did not make any misidentifications prior to trial, but was merely uncertain based on the nature of the photographs he was shown. Mr. Ross did not indicate that anyone pointed the Petitioner out to him or that anvone suggested that he should make an identification in the courtroom. Therefore, Respondent submits that the identification by Mr. Ross was not tainted by any pretrial identification procedure. The third witness challenged was Ms. Dorothy Umberger. Ms. Umberger buttressed the testimony of Mr. Ross. She testified Wo ge that she was present at the Red Dot Grocery Store on April 1, 1978 when a robbery occurred. (T. 740-742). In her testimony she indicated she was ninety percent certain that the Petitioner was one of the men who had robbed her. (T. 746-747, 754). She based her identification upon her observation of the Petitioner for approximately ten seconds during the course of the robbery. (T. 753). Petitioner was holding a gun to Ms. Umberger's head at the time she observed him. (T. 747). Although the Petitioner was wearing a stocking mask, it was not pulled tight and did not distort his features. (T. 752). On June 20, 1978, Ms. Umberger was shown a photographic display and identified the Petitioner at that time. (T. 745). Ms. Umberger did testify that she viewed the Petitioner in the courtroom on Monday morning immediately prior to trial; however, it is clear from all of her testimony that. her in-court identification was based on her observations during the robbery of the Red Dot Grocery Store and not based on her observations of the Petitioner in the courtroom. Therefore, Respondent submits that this identification was not impermissibly tainted. The only other individual whose testimony might be called into question was Arthur Kiessling. Petitioner has not addressed this witness in the brief most recently submitted to this Court. Therefore, Respondent will rely on the argument previously submitted in Respondent's response to Petitioner's motion for an evidentiary hearing dated April 29, 1982. -83- Based on all the above and foregoing, Respondent submits that there was no impermissible pretrial identification procedure in the instant case. Even if this Court concludes that there was an impermissibly suggestive identification procedure prior to trial, Respondent has shown that the identifications made by the witnesses were based on their identification of the Petitioner at the time of the respective crimes and that the in-court identifications were not impermissibly tainted by any pretrial identification procedure. Therefore, this allegation is without merit. “Gd - VII. PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL. (Claim P). Petitioner asserts various grounds in support of his allegation that he received ineffective assistance of counsel at trial. Only one portion of this allegation has been addressed by any additional evidence before this Court, that is, the allegation that counsel failed to review the report of the trial judge which was submitted to the Supreme Court of Georgia. Respondent has previously briefed the issue of the effectiveness of trial counsel in the response to Petitioner's motion for an evidentiary hearing dated April 29, 1982. Respondent would adopt the argument presented at that time in addition to the argument presented in the instant brief. The issue of the effectiveness of trial counsel was presented to the state habeas corpus court. The following specific factual findings were made by that court: At trial and on appeal, Petitioner was represented by John M. Turner. Mr. Turner has been serving as Assistant District Attorney in Fulton County since January 8, 1981. (B.7. 24). Prior to joining that staff, Mr. Turner was in practice for approximately five years (H.T. 24), a -85- practice which consisted of roughly 80% criminal work wherein he tried approximately 30 murder cases. {(H.7. 82). Prior to entering private practice, Mr. Turner served as Assistant United States Attorney in the Northern District of Georgia for two years. (H.T. 24). He was retained to represent Petitioner a few days after Petitioner was initially arrested, about one week before Petitioner's preliminary hearing. (H.T. 26). State habeas corpus order at 16. These fundamental facts are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Claims of ineffective assistance of counsel must be founded upon allegations of "what are termed, primary, or historical facts; facts 'in the sense of a recital of external events and the credibility of their narrators . . . .'" Townsend v. Sain, 372 U.S. 293, 309 n. 6 (1963); Washington v. Watking, 655 F.2d 1346, 1351 (5th Cir. 1981). Even though the final determination as to the effectiveness of trial counsel is a mixed question of fact and law, the presumption of correctness does apply to those historical and primary factual findings made by the state courts, such as those set forth above. Goodwin v. Balkcom, 684 F.2d 794, 803-804 (llth Cir. 1982). Thus, this presumption of correctness should apply to the above-stated factual findings. “D5 Petitioner initially comments that the state habeas corpus court relied upon an improper standard and comments upon the state habeas corpus court's citation to Mr. Turner's experience. As noted by Petitioner in the footnote, even an experienced attorney can render ineffective assistance of counsel. See Weidner v. Wainwright, 708 F.2d 614, 617 (llth Cir. 1983). However, a determination of the effectiveness of trial counsel is based on an examination of the totality of the circumstances and the entire record. Nelson v. Estelle, 642 F.2d 983 (5th Cir. 1981). Therefore, an examination of the effectiveness of trial counsel in a given case necessarily requires an examination of the totality of the circumstances, which can include looking to the experience of the trial attorney. Therefore, the state habeas corpus court applied a proper standard and the above factual findings were merely a matter of looking at the entire facts and circumstances of the case. The state habeas corpus court also examined specific issues raised by the Petitioner. The court initially addressed the allegation of counsel's alleged failure to contact witnesses. This has also been raised in this Court under an allegation of failure to investigate. The state habeas corpus court made the following findings: Mr. Turner testified at the habeas hearing that he had had fairly extensive pretrial -87~- conversations with the prosecutor and had discussed a good bit of the information contained in the prosecutor's discovery file. (H.T. 29-30). He also had access to the discovery file which contained the statements of all witnesses except Offie Evans (H.T. 34) and had an agreement with the prosecution to obtain copies of actual statements of witnesses for cross-examination purposes. (H.T. 88). Mr. Turner testified that he did not interview any employees of the Dixie Furniture Store prior to trial because he had opportunity to cross-examine the three employees who testified at the preliminary hearing - (H.T. 35) and that the other employees who testified at trial gave testimony periphereal (sic) to the main issue and Petitioner's defense at that point was that he was not in the store during the robbery. (H.T. 37). Counsel did not interview investigative officers because he had full access to their investigative reports contained in the prosecution's discovery £ile. {(H.7. 37). Further, Counsel went over -88- the witness list with Petitioner to see whether Petitioner knew any of the people or the type testimony they could give. (H.T. 34). Finally, Counsel asked Petitioner for the names of alibi witnesses and Petitioner responded with one nickname of a person with whom he had been unable to get in touch. (B.T. 89). State habeas corpus order at 16-17. The court examined the allegation that counsel failed to seek a continuance and an allegation that counsel did not adequately prepare for trial and concluded the following: Counsel testified that he had "fairly extensive" contact with Petitioner prior to both the preliminary hearing and trial, meeting with Petitioner over a dozen times, three times prior to the preliminary hearing. (H.T. 27). He also stated that from his extensive discussions with the prosecution, he had a "pretty good grasp of the facts." (H.T. 43). He also said that although he looked at the prosecution's discovery file only once, he got everything he needed. (H.T. 88). Wen State habeas corpus order at 18. The state habeas corpus court finally examined counsel's performance concerning the preparation for the sentencing phase and found the following as facts: Counsel testified that prior to trial, he went over Petitioner's background with him, schools that he had attended, who he knew. (H.T. 80). He also asked Petitioner if he had any witnesses or anyone to testify as to his character. He also discussed the same matters with Petitioner's sister, who declined to testify and told Counsel that her mother was not able to testify. (H.T. 80). Counsel also testified that __ Petitioner refused to testify in his own behalf during the sentencing phase. (H.T. 94). Petitioner presented conflicting evidence to the extent that Petitioner's sister testified she was not asked to testify or to provide the names of potential character witnesses. (H.T. 136-137). Petitioner also presented the affidavits of five persons who indicated they would have testified for Petitioner had they been asked. «9 ~ Despite the conflicting evidence on this point, however, the Court is authorized in its role as fact finder to conclude that Counsel made all inquiries necessary to present an adequate defense during the sentencing phase. Indeed, Counsel could not present evidence that did not exist. State habeas corpus order at 19-20. Further testimony was presented by Mr. Turner before this Court concerning the report of the trial judge. Mr. Turner indicated before this Court that he reviewed the report of the trial judge. Even at this stage, Petitioner has only shown that the report was incorrect as to factors which were not material, such as whether his father was living and the number of brothers and sisters Petitioner had. The only inaccuracy of any note pointed out is the question of a prior life sentence. This is clearly not sufficient to cause Petitioner any undue prejudice and, therefore, would not be sufficient to find counsel ineffective. To establish that counsel was ineffective for failing to make any corrections to the trial judge's report, Petitioner must show that this failure worked to his actual and substantial disadvantage. Washington v. Strickland, 693 F.2d 1243 (5th Cir. Unit B. 1982) (en banc), cert. granted, U.S. r. 103 S.Ct. 2451 (1983). As this report “OY is only utilized by the Supreme Court of Georgia in its sentence review, this could hardly have worked to the Petitioner's actual and substantial prejudice at trial and would not serve as a sufficient basis for vacating Petitioner's conviction and sentence. Petitioner has not shown that this was a deciding factor in the Supreme Court's sentence review and, therefore, Respondent submits that no actual and substantial prejudice has been shown in this regard. Petitioner asserts that counsel was ineffective and that actual and substantial prejudice has been shown based on counsel's failure to pursue the issue of the testimony of Offie Evans prior to trial. As noted by the Petitioner, counsel stated that Petitioner himself was adamant in the fact that he had not made any incriminating statements or discussed the case with anyone. Counsel was justified in relying on this statement by his client. Counsel is not required to pursue every possible avenue of defense when there appears to be no reason for such action. Furthermore, Petitioner has not shown how counsel would have reacted differently had he known of the specific nature of Offie Evans' testimony prior to trial. Mr. Evans' credibility was called into question at trial and Mr. Evans was thoroughly cross-examined by Mr. Turner. Therefore, Respondent submits that this allegation does not support a finding of ineffective assistance of counsel. GJ Petitioner also asserts that prejudice resulted due to counsel's failure to interview Kelly Fite. Petitioner has not shown how this failure resulted in actual and substantial prejudice to the Petitioner. Counsel did call into question Mr. Fite's testimony concerning the fact that the bullets were "probably" fired from a .38 Rossi. The mere fact that counsel might have been able to do a slightly better job in highlighting this probability is hardly a sufficient basis for a finding of substantial prejudice. Petitioner asserts that counsel erred in failing to interview Mamie Thomas prior to trial. Counsel had the benefit of Ms. Thomas' testimony at the preliminary hearing in 1978 and had the opportunity to cross-examine her at that time. Counsel could hardly be required to interview witnesses that have already testified under cath and whom he has had an- opportunity to cross-examine based upon the remote possibility that their testimony could change before trial. The failure to interview such a witness is hardly sufficient to justify a finding of ineffective assistance of counsel. Petitioner also asserts that counsel did not investigate the file of the district attorney soon enough in the investigation. Mr. Parker testified at his deposition that the notations on his file did not necessarily reflect every occasion that an attorney examined the file. Furthermore, the mere fact that counsel may not have examined the file of the Le district attorney until four days prior to the start of the trial was not sufficient to conclude that counsel was ineffective. Petitioner also makes other allegations relating to failure to investigate or failing to object. Certain of these allegations reflect claims that have previously been addressed and will not be repeated at this time. Other allegations have previously been addressed in the briefs by the Respondent and those arguments will not be repeated. Respondent would simply urge at this point that it has been shown from a totality of the circumstances that Mr. Turner did render reasonably effective assistance of counsel to the Petitioner and that the standard in Washington v. Strickland, supra, requiring a showing of actual and substantial prejudice has not been met in the instant case. Therefore, the instant allegation is without merit. CONCLUSION For all the above and foregoing reasons, and for those reasons previously set forth in the earlier briefs on behalf of the Respondent, Respondent prays that the instant petition be dismissed and that the relief sought be denied. Respectfully submitted, MICHAEL J. BOWERS Attorney General if CERTIFICATE OF SERVICE I do hereby certify that I have this day served the within and foregoing Brief, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: Robert H. Stroup 1515 Healey Building Atlanta, Georgia 30303 John Charles Boger l6th Floor 99 Hudson Street New York, New York 10013 Timothy K. Ford 600 Pioneer Building Seattle, Washington 98136 Anthony G. Amsterdam -- New York University Law School 40 Washington Square South New York, New York 10012 This 14th day of November, 1983. a Fes th tihu -06- JAMES P. GOOGE, JR. Executive Assistant Attorney General i 0 Colm, _ RION O. GORDON irst Assistant Rio rey General | s £4 af LIAM/B. Hitl, JR. Senior Assistant Attorjey General MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square, S. W. Atlanta, Georgia 30334 (404) 656-3349 -05~