Post Hearing Brief on Behalf of Respondent

    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 

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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 

 



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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~