Maddox v. Claytor Brief for Plaintiffs-Appellants
Public Court Documents
April 6, 1984
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Case Files, McCleskey Legal Records. Trial Proceedings Transcript Vol. 7, 1983. 396cfec3-5aa7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/63918462-0a5e-4d12-8a9e-530868d0ab1d/trial-proceedings-transcript-vol-7. Accessed May 03, 2025.
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WALTER D.
JUDGE.
WARREN MCCLESKEY,
BEFORE THE HONORABLE J. OWEN FORRESTER. UNITED STATES DISTRICT
APPEARANCES OF COUNSEL:
FOR THE PLAINTIFF: JOHN CHARLES BOGER; TIMOTHY K. FORD
FOR THE DEFENDANT: MARY BETH WESTMORELAND AND PAULA K.
IN THE UNITED STATES DISTRICT CGURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DOCKET NO. C81-2434A
PLAINTIFF, ATLANTA, GEORGIA
fe AIsY 16, 1983
ZANT: WARDEN, \
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RESPONDENT.
vaLuMe VII
TRANSCRIPT OF PROCEEDINGS
AND ROBERT H. STROUP.
SMITH.
JIM PUGH
OFFICIAL COURT REPORTER
ROOM 2347, 73 SPRING STREET. S.W.
ATLANTA, GEORGIA 30303
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1 WITNESSES
2 DIRECT CROSS REDIRECT RECROSS
3 WITNESSES FOR THE PLAINTIFF:
WOODWORTH, GEORGE GORDON 1244 1303
MYERS, BETTY JEAN 1313
WARR. L. G. 1325 1340 o
KATZ. JOSEPH LAUREN 1344
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DOCUMENTARY EVIDENCE
PLAINTIFF’S EXHIBIT GW-3
GW—4
GW-3
GW-5A
GW-5B
LiW-1
RESPONDENT “3 EXHIBIT 146
17
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1250
1243
RECEIVED
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1244
WOODWORTH ~ DIRECT
(ATLANTA, FULTON COUNTY, GEORGIA; AUGUST 16, 1933,
IN OPEN COURT.)
MR. BOGER: GOOD MORNING, YOUR HONOR.
THE COURT: YES. SIR.
GEORGE GORDON WOODWORTH,
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT”D)
BY MR. BOGER:
@. GOOD MORNING, PROFESSOR WOODWORTH.
A. GOOD MORNING.
@. YESTERDAY, AS YOU MAY RECALL, WE WERE JUST ABOUT TO TURN TO
A DISCUSSION IN YOUR TESTIMONY OF THE NOTION OF STATISTICAL
SIGNIFICANCE.
1°D LIKE YOU TO BEGIN BY GIVING THE COURT YOUR
TESTIMONY OF WHAT STATISTICAL SIGNIFICANCE IS.
A. STATISTICAL SIGNIFICANCE IS A METHOD OF COMPUTING THE
PROBABILITY THAT A DISPARITY COULD BE PRODUCED BY CHANCE.
©. AND WHAT”S THE IMPORTANCE OF STATISTICAL SIGNIFICANCE IN
EVALUATING CO-EFFICIENTS IN REGRESSIONS SUCH AS THOSE THAT ARE
REFLECTED IN THE REPORT AND TESTIMONY HERE BEFORE THE COURT?
A. WELL, STATISTICAL SIGNIFICANCE IS THE TEST OF THE RIVAL
HYPOTHESIS. THERE‘S A POSSIBILITY THAT A DISPARITY OR INDEED A
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1245
WOODWORTH - DIRECT
REGRESSION CO-EFFICIENT COULD BE PRESENT IN A. A SAMPLE PURELY
BY CHANCE, BY THE CHANCE COMBINATION OF BAD LUCK IN DRAWING A
SAMPLE, OR CHANCE COMBINATION OF, OF EVENTS IN THE CHARGING AND
SENTENCING PROCESS THAT MAY PRODUCE AN ACCIDENTAL DISPARITY
WHICH IS NOT SYSTEMIC.
NOW THE STATISTICAL SIGNIFICANCE COMPUTES THE
PROBABILITY THAT SUCH A DISPARITY COULD HAVE ARISEN BY CHANCE.
AND THEREFORE IT TESTS THE RIVAL HYPOTHESIS THAT CHANCE ACCOUNTS
FOR THE RESULTS THAT WERE OBTAINED. .
R. WERE LEVELS OF STATISTICAL SIGNIFICANCE COMPUTED OR
CALCULATED FOR THE CO-EFFICIENTS REFLECTED IN YOUR REPORT AND IN
THE TABLES USED IN THE TESTIMONY BEFORE THE COURT?
A. YES, THEY WERE.
@. NOW, ARE THERE ANY THREATS TO THE VALIDITY OF THOSE
COMPUTATIONS OF STATISTICAL SIGNIFICANCE LEVELS?
A. THERE ARE MANY THREATS TO THE VALIDITY OF THESE
COMPUTATIONS. THE PRINCIPAL THREATS ARE, LET ME, LET ME BACK UP
AND PREFACE THOSE REMARKS BY SAYING THAT STATISTICAL
SIGNIFICANCE IN HOW THE REGRESSION CO-EFFICIENT IS CALCULATED BY
WHAT WE REFER TO AS THE "T" TEST OR THE "ZI" TEST, WHICH CAN BE
SIMPLY DESCRIBED AS THE TWO-STANDARD DEVIATION OR THE
THREE-STANDARD DEVIATION RULE.
IN OTHER WORDS. WE COMPUTE THE STANDARD DEVIATION OF
THE REGRESSION CO-EFFICIENT. AND THEN DETERMINE IF THE
REGRESSION CO-EFFICIENT ITSELF IS MORE THAN TWO STANDARD
WOODWORTH — DIRECT
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DEVIATIONS DEVIANT FROM ZERO.
2 THEREFORE, THE VALIDITY OF A TEST OF SIGNIFICANCE RESTS
3 ON THE VALIDITY OF OUR CALCULATION OF THE STANDARD DEVIATION OF
4 THE REGRESSION CO-EFFICIENT.
bs @. LET ME ASK YOU JUST BRIEFLY TO EXPLAIN WHAT A STANDARD
» b DEVIATION IS?
7 A. STANDARD DEVIATION IS A MEASURE OF OUR UNCERTAINTY IN THE
8 ESTIMATE OF A REGRESSION CO-EFFICIENT.
9 IF I COULD USE MY EXAMPLE AGAIN. --
10 ®@. THE EXAMPLE, YOURE REFERRING TO. JUST FOR THE RECORD AGAIN.
33 OUR MODEL OF THE STRAWS AND STYROFOAM?
i2 A. GW-3A.
13 YOU RECALL WHAT REGRESSION DOES IS TRY TO APPROXIMATE
14 THE DATA BY A SURFACE, A PLANE, WHERE THE SLOPES IN EACH
13 DIRECTION ARE THE REGRESSION CO-EFFICIENTS.
16 | NOW, IF THERE IS, NOW NATURALLY THERES GOING TQ BE
17 VARIATION IN THE SAMPLE DATA AT EACH OF THESE POINTS, AND THAT
13 VARIATION WILL DRIVE THE PLANE, WILL MAKE IT WIGGLE A LITTLE
12 BIT. AND AS THE PLANE WOBBLES FROM DATA SET TO DATA SET. THAT
20 CHANGES THE SLOPE IN EACH DIRECTION.
21 NOW THE AMOUNT OF THAT CHANGE IS WHAT WE CALL THE
22 STANDARD DEVIATION IN THE SLOPE.
23 &. ALL RIGHT. ARE THERE ANY STATISTICAL CONVENTIONS ABOUT WHAT
24 STANDARD DEVIATIONS ARE ACCEPTABLE IN TERMS OF HAVING CONFIDENCE
23 IN OR RELYING UPON THE MEASURE OF THE CO-EFFICIENTS THAT YOU-VE
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WOODWORTH — DIRECT
MADE™
A. YES, THERE ARE. THE USUAL CONVENTION THATS USED IN
STATISTICS IS EXPRESSED IN TERMS OF THE STATISTICAL
SIGNIFICANCE.
$0 FOR EXAMPLE, WE MIGHT SAY A RESULT IS
SIGNIFICANT AT THE FIVE PERCENT LEVEL, MEANING THAT THERE’S ONLY
ONE CHANCE IN TWENTY THAT THAT PARTICULAR DISPARITY COULD HAVE
COME ABOUT BY CHANCE.
NOW, THIS TRANSLATES INTO. IT’S A, IF THE SAMPLE IS
SUFFICIENTLY LARGE, THIS TRANSLATES INTO A TWO-STANDARD
DEVIATION DISPARITY.
IN OTHER WORDS. IF THE DISPARITY IS MORE THAN TWO
STANDARD DEVIATIONS THEN APPROXIMATELY. AT LEAST, THERE-’S ONLY
ONE CHANCE IN TWENTY THAT THAT RESULT CAME ABOUT BY ACCIDENT.
@. AND WHAT’S THE PERCENTAGE EQUIVALENT TO THE THREE-STANDARD
DEVIATION POINT?
A. I DON’T CARRY THAT FIGURE AROUND IN MY HEAD, BUT ITS
SMALLER THAN ONE CHANCE IN A HUNDRED.
@. WELL, WITH A .01 LEVEL AS APPROACHING. AT LEAST. THE
THREE-STANDARD DEVIATION?
A. IT’S SOMEWHAT SMALLER THAN THAT, BUT AS I SAY, 1T7S NOT ONE
OF THE FIGURES 1 CARRY ABOUT IN MY HEAD.
R. NOW I ASKED YOU TO COMMENT ON THE POSSIBLE THREATS TO THE
VALIDITY OF THE COMPUTATIONS THAT ONE HAS MADE OF LEVEL
STATISTICAL SIGNIFICANCE IN THE REGRESSIONS THAT ARE BEFORE THE
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1243
WOODWORTH — DIRECT
1 COURT?
2 A. PARDON ME. COUNSEL. WOULD YOU REPEAT THE QUESTION?
3 2. YES.
4 WHAT POSSIBLE THREATS WOULD THERE BE TO CALCULATIONS OF
3 STATISTICAL SIGNIFICANCE, GIVEN THE KIND OF DATA SET YOU’VE
6 EMPLOYED AND THATS BEFORE THE COURT?
7 A. THERE ARE TWO KINDS OF THREATS. ONE IS THE FACT THAT WE
3 HAVE USED A STRATIFIED SAMPLE. AND THE INTRODUCTION OF
9 STRATIFICATION DOES MEAN THAT THE, THE STANDARD ERRORS AS
10 CALCULATED BY A COMPUTER PROGRAM ARE NOT QUITE CORRECT IN
11 THEORY.
12 THE OTHER CHALLENGE TO THE THEORY IS THE PHENOMENON I
13 MENTIONED OF THE POSSIBILITY THAT THE RESIDUAL VARIATION MAY NOT
14 BE THE SAME AT ALL. AT ALL, IN ALL REGIONS OF THE DATA.
13 @. NOW, IS THAT TESTIMONY YOU’RE REFERRING TO, WHICH OF THE
16 | REGRESSION MODELS?
17 A. IT REFERS CHIEFLY TO LEAST SQUARES REGRESSION.
13 @. DID YOU TAKE ANY STEPS TO EVALUATE WHETHER THESE POSSIBLE
A 19 THREATS TO THE MEASURES OF THE LEVEL OF STATISTICAL SIGNIFICANCE
20 POSED A GENUINE THREAT IN THESE CASES?
21 A. YES. SIR. I PERFORMED A NUMBER OF DIAGNOSTIC MEASURES TO
22 DETERMINE WHETHER OR NOT THE RESULTS THAT WE OBTAINED WERE DUE
23 TO ERRORS, RATHER THAN TO INVALIDITY IN THE COMPUTATIONS OF STANDARD
24 DEVIATIONS.
PB)
Ch @. WHAT CHIEF METHOD DID YOU RELY UPON?
WOODWORTH ~ DIRECT
1 A. THE CHIEF METHOD THAT I RELIED UPON WITH REGARD TO STANDARD
2 DEVIATIONS IS A METHOD DEVELOFED BY NOEL CRESSIE. WHICH HE
3 REFERS TO IN THE TITLE OF HIS PAPER AS "PLAYING SAFE."
THEREFORE. I CALL THESE THE SAFE STANDARD DEVIATIONS.
WHAT IVE DONE IS APPLIED CRESSIE‘S METHOD TO THE
PRESENT SITUATION AND USED IT TO CALCULATE SLIGHTLY CONSERVATIVE
4
3
&
7 ESTIMATES OF THE STANDARD DEVIATIONS OF THE REGRESSION
8 CO-EFFICIENTS.
9 @. BEFORE WE GET TO TABLES THAT MAY REFLECT THOSE CALCULATIONS,
0 LET ME ASK YOU TO TURN TO WHAT“S BEEN MARKED FOR IDENTIFICATION
11 AS GW-3 AND I‘LL ASK YOU TO IDENTIFY THAT DOCUMENT?
12 A. GW-3 IS A, AN APPENDIX FROM OUR LARGE REPORT, WHICH COVERS
13 MY INVESTIGATION OF A NUMBER OF CHALLENGES TO THE VALIDITY OF
14 THE STATISTICAL ANALYSIS.
15 ONE SECTION OF THIS CONCERNS THE COMPUTATION OF
16 STANDARD DEVIATIONS. BY THE WAY. I USED THE TERM STANDARD ERROR
17 IN REFERRING TO THE STANDARD DEVIATION OF THE REGRESSION
18 CO-EFFICIENT, WHICH IS IN KEEFING WITH THE STATISTICAL. WITH THE
w 19 TERMINOLOGY USED IN THE STATISTICAL PROFESSION.
20 @. LET ME DIRECT YOUR ATTENTION TO PAGE & OF THIS DOCUMENT,
21 FOOTNOTE 1, IF YOU COULD TELL US WHAT THAT IS?
22 A. FOOTNOTE 1 IS THE TECHNICAL EXPLANATION OF CRESSIE-S
23 METHOD AS APPLIED TQ WEIGHTED REGRESSION.
24 @. HAVE YOU EXAMINED FOOTNOTE 1 IN ITS ENTIRETY?
23 A. WELL. I WROTE IT, AND YES, I HAVE EXAMINED IT SEVERAL TIMES.
| WOODWORTH - DIRECT
1 @. DOES IT ACCURATELY REFLECT CRESSIE“S METHOD AND HOW IT
2 SHOULD BE EMPLOYED. IN A TECHNICAL SENSE?
3 A. YES. IT DOES.
4 @. I WILL NOT ASK YOU ANY FURTHER QUESTIONS ABOUT PARTICULAR
S COMPUTATIONS.
* 6 1S THERE ANYTHING ELSE WITHIN GW-3 THAT REFERS TO
7 CRESSIE’S METHOD?
3 A. THERE IS. YES. THERE IS. IT’S SCHEDULE 2, WHICH IS ENTITLED
4 "COMPUTATION OF SAFE STANDARD ERRORS."
10 THIS IS A COMPUTER PROGRAM ILLUSTRATING HOW I PERFORMED
11 THESE COMPUTATIONS.
12 @. THAT'S THE LAST DOCUMENT IN THE GROUP OF DOCUMENTS THAT --
13 A. NEXT TO THE LAST. SCHEDULE 2, IN GW-3.
14 @. AND DID YOU USE THE PROGRAM THAT. THAT-S SET FORTH HERE TO
13 DO THESE CALCULATIONS THEN USING CRESSIEZS METHOD?
16 A. THIS IS AN EXAMPLE OF THE PROGRAMS THAT I USED.
17 EACH RUN WOULD INVOLVE SELECTING A DIFFERENT SET OF
13 VARIABLES.
® 19 @. ALL RIGHT, LET ME ASK YOU TO IDENTIFY, IF YOU WOULD, GW-47
20 A. GW-4 IS MY SUMMARY OF THE DIAGNOSTIC TESTS THAT I PERFORMED
23 ON THE REGRESSIONS. BOTH LINEAR AND LOGISTIC, WHICH WERE USED IN
22 OUR ANALYSIS.
23 @. LET’S TURN TO TABLE 1, THE FOLD-OUT TABLE THAT FOLLOWS THE
24 WRITTEN PORTION OF THAT MATERIAL. CAN YOU IDENTIFY THAT TABLE?
23 A. YES. THIS IS A SUMMARY TABLE SHOWING THE DIAGNOSTIC
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WOODWORTH — DIRECT
ANALYSES THAT I DID ON FIVE MODELS THAT WERE REPORTED IN OUR. IN
OUR REPORT.
@. ARE THESE SOME OF THE MODELS THAT PROFESSOR BALDUS HAS
TESTIFIED ON DURING THE PAST THREE OR FOUR DAYS?
A. SOME OF THEM ARE, YES. THE MID-RANGE MODEL. FOR EXAMPLES
THE SEVEN VARIABLE MODEL; THE ALL STATUTORY AGGRAVATING AND 73
MITIGATING MODEL. THATS TO THE BEST OF MY RECOLLECTION, HES
TESTIFIED TO ALL THESE MODELS. |
QA. ALL RIGHT. DO YOU WANT TO TELL US NOW WHAT YOU DID, EXPLAIN
THESE TABLES IN TERMS OF THE CALCULATION OF SAFE STANDARD MEANS
OF STATISTICAL SIGNIFICANCE LEVELS?
A. OKAY. IF WE COULD FOCUS ON THE MID-RANGE MODEL, WHICH IS
THE LAST ONE ON THE FIRST PAGE, THE ROW MARKED "WLS" REFERS TO
WEIGHTED LEAST SQUARES. THIS IS THE LINEAR REGRESSION THAT IVE
BEEN TALKING ABOUT.
THE COLUMN MARKED "CO-EFFICIENT", WHICH IS THE SECOND
COLUMN OF NUMBERS, CONTAINS THE NUMBER .076. .076 IS THE
REGRESSION CO-EFFICIENT ATTACHED TO THE RACE OF VICTIM VARIABLE.
NOW THE REGRESSION CO-EFFICIENT, OF COURSE. IS THE
AMOUNT OF CHANGE ON AVERAGE IN THE DEPENDENT VARIABLE FOR A ONE
STEP CHANGE IN THE INDEPENDENT VARIABLE.
CONSEQUENTLY. THIS SAYS THAT IF WE GO FROM A BLACK
VICTIM WHICH WAS CODED ZERO TO A WHITE VICTIM, WHICH IS CODED 1.
THATS A ONE STEP CHANGE IN THE INDEPENDENT VARIABLE. AND THAT
PRODUCES A .074 CHANGE ON AVERAGE IN THE DEPENDENT VARIABLE.
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1252
WOODWORTH - DIRECT
IN OTHER WORDS. A 7.6 PERCENT RISE IN THE DEATH
SENTENCING RATE.
SO IN THAT SENSE, THE REGRESSION CO-EFFICIENT IS A
PERCENTAGE. IT’S A PERCENTAGE WHEN THE INDEPENDENT VARIABLE IS
A ZERD ONE VARIABLE.
NOW THE NEXT COLUMN IS THE STANDARD ERROR, AS COMPUTED.
WHICH IS THE STANDARD DEVIATION. AS COMPUTED BY THE STATISTICAL
PACKAGE THAT I USED TO RUN THIS DATA.
@. LET ME ASK YOU JUST A QUESTION OR TWO ABOUT THAT.
WHERE DID THIS STANDARD ERROR APPEAR WHEN YOU RAN A
REGRESSION?
A. WHEN YOU RUN A REGRESSION, IT TYPICALLY PRINTS OUT A COLUMN
MARKED "CO-EFFICIENT" OR POSSIBLY MARKED "PARAMETER," AND NEXT
TO THAT WILL BE A COLUMN MARKED “STANDARD ERROR" OR "STANDARD
DEVIATION."
'R. ALL RIGHT. NOW WHAT DOES THE .02 REFLECT WITH RESPECT TO
THE CO-EFFICIENT?
A. IT REFLECTS WITH RESPECT TO CO-EFFICIENT., IT REFLECTS THREE
STANDARD DEVIATIONS AWAY FROM ZERO. SO IT IS HIGHLY
SIGNIFICANT.
R. HOW IS THAT CALCULATED?
A. WELL, ONE WOULD DIVIDE THE CO-EFFICIENT .076 BY THE STANDARD
DEVIATION, .02., AND YOU GET A NUMBER LARGER THAN 3, THAT NUMBER
1S REFERRED TO AS THE "T" RATIQ, AND IF THAT NUMBER EXCEEDS TWO
OR THREE. THEN WE HAVE SATISFIED THE TWO OR THREE STANDARD
1233
WOODWORTH - DIRECT
1 DEVIATION TEST. :
2 Q. NOW.» HOW WAS THE STATISTICAL SIGNIFICANCE LEVEL REFLECTED
ACTUALLY IN THE REGRESSION TABLES AND FIGURES?
A. WELL. MOST PROGRAMS WILL ALSO COMPUTE THE STATISTICAL
SIGNIFICANCE ASSOCIATED WITH A DEVIATION OF THAT MANY STANDARD
@. ALL RIGHT. WHERE DOES CRESSIE‘S SAFE TEST THAT YOU
PERFORMED DIAGNOSTICALLY TO CHECK THE LEVEL OF STATISTICAL
3
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® 6 ‘DEVIATIONS.
7
8
? SIGNIFICANCE COME IN?
10 |A. IT CHECKS IT BY DETERMINING WHETHER OR NOT THE STANDARD
11 |ERRORS, AS REPORTED BY THE COMPUTER. CAN BE RELIABLY USED.
12 IN THIS CASE. WE SEE THAT THE SAFE STANDARD ERROR IS
13 |.023, AND YOU MUST RECALL THAT I SAID THAT WAS A CONSERVATIVE
14 |ESTIMATE. WHICH MEANS IT’S SLIGHTLY ON THE LARGE SIDE. WHICH
1S |MAKES IT MORE DIFFICULT TO ACHIEVE A TWQ STANDARD DEVIATION RULE
16 |AND THEREFORE WHEN WE DO ACHIEVE IT, WE KNOW WE-VE REALLY
17 |ACHIEVED IT. |
18 |@. AND DO WE IN THIS EXAMPLE YOU’VE GIVEN US?
w 19 |A. WELL. INDEED, TWO STANDARD DEVIATIONS WOULD BE .046 AND THE
20 |CO-EFFICIENT IS .07&, WHICH IS WELL ABOVE TWC STANDARD
21 DEVIATIONS.
22 |l@. DID YOU RUN THIS CRESSIE SAFE STANDARD ERROR PROCEDURE ON
23 |ANY OTHER OF THE DIAGNOSTIC MODELS?
24 |A. WELL, I. WHILE, WHILE THEORETICALLY THE WEIGHTED LEAST
25 SQUARES IS THE CORRECT METHOD OF ANALYSIS AS IT GIVES UNBIASED
1254
WOODWORTH — DIRECT
ESTIMATES. I DID RUN AN UNWEIGHTED AS WELL JUST TO MAKE SURE
THAT THE WEIGHTING WAS NOT ITSELF PRODUCING THE RACE OF VICTIM
EFFECT, AND IN POINT OF FACT WE SEE IN THE SECOND LINE, THE
"OLS", ORDINARY LEAST SGUARES, MEANS UNWEIGHTED, THAT WE GET AN
EVEN LARGER ESTIMATE OF THE RACE OF VICTIM EFFECT THERE. SO
IT'S STILL SIGNIFICANT.
R. WHAT’S THE EFFECT THERE?
A. IT SAYS ON AVERAGE TEN PERCENTAGE POINTS. BUT THAT WOULD BE
A BIASED ESTIMATE.
@. WHAT'S THE STANDARD ERROR THERE?
A. .025, NOMINALLY. AS PRODUCED BY THE COMPUTER. AND .0346 AS
COMPUTED BY CRESSIE’S METHOD. AGAIN WE EXCEED TWO STANDARD
DEVIATIONS BY EITHER RULE.
@. HAVING EMPLOYED THE CRESSIE SAFE METHOD IN THE INSTANCES
REFLECTED IN THIS TABLE. DID YOU REACH A PROFESSIONAL CONCLUSION
ABOUT WHETHER THE LEVELS OF STATISTICAL SIGNIFICANCE WERE
APPROPRIATELY CALCULATED IN THE REGRESSIONS THAT APPEAR IN YOUR
REPORT, AND AS HAVE BEEN TESTIFIED TO BEFORE THE COURT?
A. YES. THE LEVELS OF SIGNIFICANCE AS COMPUTED BY PROFESSOR
BALDUS ARE VALID. THIS INDICATES THAT THOSE LEVELS ARE VALID.
AND CAN BE RELIED UPON.
@. NOW, DID YOU CONDUCT ANY FURTHER DIAGNOSTIC TEST OF THE
STATISTICAL PROCEDURES THAT WERE USED IN THIS REPORT, AND IN THE
TESTIMONY BEFORE THIS COURT?
A. YES. I DID.
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1255
WOODWORTH — DIRECT
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QR. WHAT WERE THEY?
A. THE NEXT ONE THAT I. THAT IS REPORTED HERE. IS WHAT I CALL
THE WORST CASE ANALYSIS. THE IDEA HERE IS TO TAKE THE CASES IN
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WHICH THERE“S UNKNOWN INFORMATION, IF THE, IF THE UNKNOWN
INFORMATION REFERS TO AN AGGRAVATING CIRCUMSTANCE, THEN I WILL
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RECODE IT 1, AS BEING PRESENT RATHER FOR DEATH CASES AND AS
BEING ABSENT FOR LIFE CASES.
IF THE MISSING. IF THE. IF THE MISSING PIECE OF
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INFORMATION REFERS TO A MITIGATING CIRCUMSTANCE I CODE IT ZERO
10 FOR A DEATH CASE. THAT IS TO SAY. ABSENT IN A DEATH CASE AND
11 PRESENT IN A LIFE CASE.
12 @. WHAT“S THE LOGIC OF THOSE CODINGS?
13 A. THE LOGIC OF THOSE CODINGS IS THAT IT MAKES THE PRESUMPTION
14 THAT THE DECISIONS IN THE SYSTEM ARE, WERE JUSTIFIED BY THE
135 UNKNOWN INFORMATION, WOULD HAVE BEEN JUSTIFIED BY THE UNKNOWN
16 INFORMATION.
17 @. IN OTHER WORDS. IF THE INFORMATION IS UNKNOWN. AND IT’S A
1& DEATH CASE, IT“S GOING TO BE MORE AGGRAVATED AND LESS MITIGATED?
w 17 A. CORRECT. IF WE ASSUME THAT DEATH WAS FOUND, THE CASE WAS
20 MORE AGGRAVATED.
21 |@. ALL RIGHT. WHAT DO THE RESULTS OF THAT DIAGNOSTIC TEST
22 REFLECT?
23 A. THE RESULTS OF THAT DIAGNOSTIC INDICATE THAT WHEN WE ALLOW,
24 WHEN WE ASSUME THAT THE UNKNOWNS WOULD EXPLAIN THE RESULTS, WE
23 STILL SEE A RACE OF VICTIM EFFECT. ALTHOUGH IT’S SOMEWHAT
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WOODWORTH - DIRECT
| ATTENUATED, BUT NEVERTHELESS STILL STATISTICALLY SIGNIFICANT. pa
THE CO-EFFICIENT NOW IS .057, AND THAT IS TG SAY
ABOUT SIX PERCENTAGE POINTS INSTEAD OF ABOUT .3 PERCENTAGE
POINTS.
@. ALL RIGHT. DID YOU PERFORM ANY OTHER DIAGNOSTIC TEST?
A. ANOTHER ISSUE IN REGRESSION WHICH HAS ATTRACTED SOME
ATTENTION OVER THE PAST. OH, PERHAPS FIVE YEARS, IS THE ISSUE OF
INFLUENTIAL DATA IN REGRESSION.
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NOW THE NOTION THERE IS THAT ITS QUITE POSSIBLE THAT A
10 SIGNIFICANT RESULT IN A REGRESSION CAN BE PRODUCED BY ONE OR TWO
11 ANOMALOUS OBSERVATIONS.
12 TO ILLUSTRATE HOW THIS MIGHT COME ABOUT. REFERRING TO
13 MY STRAW FIGURE, IF A DATA POINT WERE LOCATED EXTREMELY FAR AWAY
i4 FROM THE OTHER DATA POINTS, IT CAN EXERT A GREAT DEAL OF WHAT IS
15 TECHNICALLY REFERRED TO AS LEVERAGE ON THE SLOPE.
16 : FOR EXAMPLE, IF THERE WERE A POINT QUT HERE. AND IT HAD
17 A SMALL AMOUNT OF ERROR IN IT, THAT SMALL AMOUNT OF ERROR WOULD
13 EXERT QUITE A BIT OF LEVERAGE. THAT“S WHAT WE REFER TO AS AN
- 19 INFLUENTIAL OR A LEVERAGE POINT IN THE REGRESSION.
20 WHAT I DID WAS DO A COMPUTER RUN WHICH IDENTIFIED THE
21 MOST INFLUENTIAL, THE CASES WITH THE MOST LEVERAGE ON THE
22 REGRESSION CO-EFFICIENTS FOR THE RACIAL VARIABLES. AND REMOVED
23 THOSE FROM THE DATA SET, AND RERAN THE REGRESSION TO SEE IF
24 THAT STOOD UP. IN OTHER WORDS, WERE TRYING TO TO SEE IF THE
23 EFFECT IS SYSTEMATIC RATHER THAN CONCENTRATED IN A FEW ANOMALOUS
WOODWORTH - DIRECT
CASES. AND INDEED WHEN WE REMOVED THE 43 MOST INFLUENTIAL
CASES. THE REGRESSION CO-EFFICIENT DOES DROP TO A CERTAIN
EXTENT. BUT IT STILL REMAINS SIGNIFICANT.
@. LET ME ASK YOU, I NOTICE IN THE DIFFERENT MODELS. THE SEVEN
VARIABLE MODEL. THE ELEVEN VARIABLE MODEL. THE MID-RANGE MODEL. THE ALL STATUTORY AGGRAVATING MODEL, AND THE ALL AGGRAVATING
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PLUS 73 MITIGATING, YOU HAVE DIFFERENT NUMBERS LISTED. 40 MOST
INFLUENTIAL IN ONE, 4& IN ANOTHER. 48 IN ANOTHER.
WHY THESE DIFFERENCES IN NUMBER?
A. THAT’S BECAUSE I USED THE OBJECTIVE RULE TO ELIMINATE
LEVERAGE POINTS. MY GOAL WAS TO ELIMINATE ANY POINT WHICH WOULD
HAVE CHANGED THE REGRESSION CO-EFFICIENT BY MORE THAN A TENTH OF
A STANDARD DEVIATION.
Q. S0 IF SOMETHING DID CHANGE BY MORE THAN A TENTH. YOU
EMPLOYED IT IN YOUR MOST INFLUENTIAL CASES?
A. THAT’S CORRECT.
@. ALL RIGHT. WHAT WERE THE RESULTS OF THESE TESTS THROUGHOUT
THE SYSTEM WHERE YOU LOOKED AT THE DIFFERENT MODELS?
A. WELL. IN NO CASE DID THEY CHANGE THE SIGNIFICANCE OR
NON-SIGNIFICANCE OF A CO-EFFICIENT, OF A RACIAL CO-EFFICIENT.
@. NOW WHAT OTHER DIAGNOSTIC —-
THE COURT: WAIT JUST A SECOND, MR. BOGER. BEFORE YOU
G0 AHEAD. 1M KIND OF INTERESTED IN THAT CONCEPT.
I UNDERSTAND THAT YOU ARE REMOVING 48 MOST INFLUENTIAL
CASES?
1258
WOODWORTH — DIRECT
THE WITNESS: RIGHT.
THE COURT: HOW DID THEY BECOME INFLUENTIAL?
THE WITNESS: THEY BECAME INFLUENTIAL BY HAVING A
UNIQUE COMBINATION OF FEATURES THAT TAKES THEM AWAY FROM THE
MAIN BODY OF CASES.
THE COURT: CAN YOU GIVE ME A CONCRETE EXAMPLE?
THE WITNESS: WELL. THE ONLY EXAMPLE THAT I EXAMINED IN
DETAIL, BY THE WAY I MISSPOKE EARLIER. IN THE, IN THE
AGGRAVATING MODEL, THE MODEL THAT HAD THE TEN STATUTORY
AGGRAVATING CIRCUMSTANCES IN IT, THE EFFECT OF REMOVING THE
40 MOST INFLUENTIAL CASES WAS, THAT DID ELIMINATE THE RACE OF
VICTIM EFFECT.
THE COURT: WHERE IS THAT?
THE WITNESS: THAT’S PAGE 2 OF THE TABLE HERE. WE SEE
WHEN WE REMOVE THE 40 MOST INFLUENTIAL CASES, THE RACIAL EFFECT
BECOMES .013, WHICH IS SMALLER THAN ONE STANDARD ERROR.
NOW, I DID EXAMINE THE REASON FOR THAT. AND IT TURNED
OUT THAT THE REASON FOR THAT WAS THERE WERE NINE CASES WHICH
WERE MODERATELY AGGRAVATED IN TERMS OF THE PRESENCE OF THE B1
THROUGH B10 FACTORS, HAD WHITE VICTIMS BLACK DEFENDANTS. AND
RECEIVED THE DEATH SENTENCE.
IN OTHER WORDS, WE HAVE SOME POINTS HERE WHICH ARE NOT.
WE HAVE, WE HAVE. WHAT WE’RE SAYING IS. THAT IN THIS PARTICULAR
ANALYSIS THE SIGNIFICANCE OF THE RACIAL EFFECT WAS PRODUCED BY
THESE NINE CASES WHERE WE HAD WHITE VICTIM AND BLACK DEFENDANT,
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WOODWORTH - DIRECT
AND MODERATE LEVEL OF AGGRAVATION.
BY MR. BOGER:
Q. PROFESSOR BALDUS, EXCUSE ME. WOODWORTH. WHAT KIND OF CASE,
CONCRETELY. WOULD YOU EXPECT TO HAVE A GREAT DEAL OF LEVERAGE OR
THERE TO BE AN INFLUENTIAL CASE, JUST SORT OF DESCRIBED
HYPOTHETICALLY?
A. DESCRIBED HYPOTHETICALLY. A LEVERAGE CASE IS A CASE WHICH.
WELL. IT MIGHT BE THE QUINTESSENTIAL CASE, LIKE AN AGGRAVATED.
MODERATELY AGGRAVATED WHITE VICTIM BLACK DEFENDANT CASE. THE
CASE WHICH SO TO SPEAK MAKES THE POINT.
NOW, YOU HAVE TO EXCUSE ME. THAT MY. MY WAY OF
EXPLAINING THIS IS MORE THEORETICAL AND LESS CONCRETE THAN MAY
BE APPROPRIATE HERE, BUT THE IDEA IS. IF WE CAN IMAGINE A
STRAIGHT LINE REGRESSION WHERE WE HAVE AN X VARIABLE. ON THE
HORIZONTAL AXIS, AND A Y VARIABLE ON THE VERTICAL; THEN LET’S
SAY THE HORIZONTAL AXIS IS LEVEL, THAT. THAT IS THE ACCUMULATION
OF SOME AGGRAVATING FACTORS. PERHAPS. THE VERTICAL AXIS I “l
DEATH SENTENCING RATE, THEN A LEVERAGE POINT IS GOING TO BE ONE
WHICH IS HIGHLY AGGRAVATED AND GOT A DEATH SENTENCE.
IN OTHER WORDS, IT“S GOING TO BE A POINT THAT THIS
STRAIGHT LINE IS TRYING TO MEET.
NOW IF WE REMOVE THIS POINT SITTING QUT HERE, AND THEN
LEAVE A CLOUD SITTING OVER HERE AT LOWER LEVELS OF AGGRAVATION,
THE LINE HAS A LITTLE MORE LIBERTY TO MOVE AROUND.
@. IN OTHER WORDS, YOU WOULD EXPECT A VERY HIGHLY AGGRAVATED
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12460
WOODWORTH ~ DIRECT
CASE, MULTIPLE VICTIMS. TORTURE. THAT KIND OF THING. THAT ALSO
—-
2 GOT DEATH, TO BE AMONG THE MOST INFLUENTIAL CASES?
3 A. WELL, YOU HAVE TO SAY INFLUENTIAL ON WHAT. NOW, ITS
4 INFLUENTIAL ON A REGRESSION CO-EFFICIENT.
3 @. RIGHT.
® é A. NOW, THE CASES THAT ARE GOING TO BE INFLUENTIAL ON RACE OF
7 VICTIM CO-EFFICIENT ARE THOSE THAT HAVE WHITE VICTIMS.
3 2. OKAY.
4 THE COURT: LET ME MAKE SURE I UNDERSTAND.
10 I HAVE AN X Y COORDINATE IN MY MIND WITH LOTS OF LITTLE
11 POINTS.
32 THE WITNESS: YEAH.
13 THE COURT: AND NO LINE AT THIS POINT IN TIME.
14 ARE YOU REMOVING THOSE IN THE MID-RANGE OR THOSE AT THE
13 EXTREMES?
16 THE WITNESS: WAY OUT AT THE EXTREME.
17 THE COURT: HIGH EXTREME ONLY. OR HIGH AND LOW?
13 THE WITNESS: EITHER ONE.
w i? THE COURT: EITHER OR BOTH?
20 THE WITNESS: EITHER OR BOTH ARE INFLUENTIAL.
21 THE COURT: DO YOU KNOW WHETHER YOU REMOVED EITHER OR
22 BOTH?
23 THE WITNESS: IN THIS CASE. NO, I DIDN’T DQ ANY
24 DETAILED EXAMINATION OF WHICH ONES I WAS REMOVING.
23 THE COURT: I WAS JUST CURIOUS.
JE NOH en eee e—— eet eee. See, —— eee. See teen S—— | | SE 1
1261
WOODWORTH - DIRECT
1 THE WITNESS: NOW. JUST ONE REMARK ON THIS. ONE MODEL
WHERE WE DIDN’T HAVE THE EFFECT. WE DON‘T SERIOUSLY CONSIDER nN
THAT TO BE A MODEL OF THE SYSTEM. IN THE MODELS WHICH WE DO
+
FEEL GIVE REALISTIC VIEWS OF THE SYSTEM. THE EFFECT OF THE
INFLUENTIAL POINTS IS NOT TO CHANGE THE SIGNIFICANCE. 4
) ,@. DID YOU PERFORM ANY OTHER DIAGNOSTIC TEST ON THIS
7 STATISTICAL SIGNIFICANCE LEVELS?
8 A. YES. 1 ALSO PERFORMED DIAGNOSTIC TESTS WITH REGARD TO
¢ |SIGNIFICANCE ON THE LOGISTIC REGRESSIONS.
Q R. WHAT DID THEY IN FACT REVEAL?
3 A. THE TESTS I PERFORMED WERE VARIATIONS ON CRESSIE’S.,
12 ADAPTATIONS OF CRESSIE’S TEST TO A LOGISTIC SETTING. AND AS YOU
13 CAN SEE FROM THE ROW MARKED "UNWEIGHTED LOGISTIC" AND "WEIGHTED
14 LOGISTIC" THAT IN EFFECT, THE STANDARD DEVIATIONS PRODUCED BY
15 THE COMPUTER ARE VERY CLOSE TO THOSE PRODUCED BY CRESSIE’S
146 METHOD.
17 FOR EXAMPLE, THE UNWEIGHTED LOGISTIC FOR THE MID-RANGE
18 MODEL, COMPUTER PRINTS .42 AND CRESSIE PRODUCED .45 AS THE
w 19 STANDARD DEVIATION OF THE LOGISTIC REGRESSION CO-EFFICIENT.
20 @. LET ME ASK YOU, I NOTICE THERE‘S A ROW HERE THAT SAYS "WLS
21 WITH SECOND ORDER INTERACTIONS." WHAT IS THAT REFERRING TO?
22 'A. PARDON ME. YOULL RECALL THAT I MENTIONED THAT ONE OF THE
23 ASSUMPTIONS OF LEAST SRUARES IS THE EFFECT OF, SAY. RACE OF
24 VICTIM IS CONSTANT QVER ALL LEVELS OF AGGRAVATION.
23 THE PURPOSE OF THIS RUN WAS TO INTRODUCE SOME MORE
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WOODWORTH = DIRECT
FLEXIBILITY INTO THE MODEL. INTO THE REGRESSION, TO ALLOW IT TO.
TO, TO PRODUCE ESTIMATES OF DEATH SENTENCING RATES IN WHICH THE
IMPACT OF A VARIABLE DEPENDED UPON THE LEVEL OF OTHER VARIABLES,
AND PARTICULARLY ON THE LEVEL OF AGGRAVATION.
@. ALL RIGHT. WHAT DID THE RESULTS OF THAT DIAGNOSTIC TEST
SHOW?
A. THE RESULTS OF THAT DIAGNOSTIC TEST SHOW IN GENERAL THAT
THE. THE RESULT OF, IF EXPANDING THE MODEL. MAKING IT MORE
FLEXIBLE, ALLOWING IT TO HAVE CURVATURE IN IT, AND ALLOWING IT
TO HAVE INTERACTION, STILL DID NOT REMOVE THE RACE OF VICTIM
EFFECT. IT STILL EMERGED AS SIGNIFICANT.
'®. NOW, FINALLY, YOU HAVE SOMETHING DOWN HERE THAT SAYS
"MODIFIED MANTEL-HAENSZEL." WHAT DOES THAT REFER TO?
A. THAT IS WHAT PROFESSOR BALDUS REFERS TO AS THE INDEX METHOD.
THIS IS ANALOGOUS TO THE ROW MARKED WLS WITH SECOND
ORDER INTERACTIONS.
THIS IS A TEST IN WHICH WE ALLOW MUCH MORE FLEXIBILITY
IN THE LOGISTIC MODEL. WE ALLOW IT TO HAVE CERTAIN KINDS OF
CURVATURE IN IT, AND CERTAIN KINDS OF INTERACTIONS TO SEE IF
THOSE COULD ACCOUNT FOR THE RACE OF VICTIM EFFECT.
AND AGAIN WE SEE QUITE SIGNIFICANT RACE OF VICTIM
EFFECTS. THE TEST HERE, BY THE WAY. EMERGES IN THE FORM OF
CHI-SQUARED STATISTIC. AND THE, WITH ONE DEGREE OF FREEDOM. AND
THE, WHAT WOULD CORRESPOND TO THE TWO-STANDARD DEVIATION RULE
THERE, WOULD BE A CHI-SQUARED EQUAL TO FOUR.
WOODWORTH — DIRECT
1 S0 AS WE CAN SEE, THE CHI-SQUAREDS FOR THE RACE OF
2 VICTIM EFFECT UNDER THE MODIFIED MANTEL-HAENSZEL PROCEDURE ARE
3 QUITE. QUITE IN EXCESS OF WHAT IS EQUIVALENT TO THE TWO-STANDARD
4 DEVIATION RULE.
bo @. SO THIS MANTEL-HAENSZEL IS USED ONLY FOR LOGISTIC
&® 1) REGRESSIONS?
7 A. THAT’S CORRECT. IT’S THE DIAGNOSTIC FOR THE LOGISTIC
8 REGRESSIONS.
2 Q. WHERE DOES IT COME FROM? CAN YOU TELL US?
10 A. ITS GENEALOGY IS AS FOLLOWS.
33 THE ORIGINAL SUGGESTION TO LUISE THIS PROCEDURE WAS MADE
12 BY BISHOP, FIENBERG AND HOLLAND.
13 |@. I5 THAT REFLECTED SOMEWHERE IN GW-37
14 A. YES, IT IS. I“M TRYING TO FIND THE REFERENCES.
15 THE REFERENCES COME AFTER THE FOOTNOTES IN GW-3. THE
14 FIRST REFERENCE THERE IS MARKED BFH, BISHOP, FIENBERG AND
17 HOLLAND. THIS IS THE BIBLE OF DISCRETE MULTIVARIATE ANALYSIS
18 WHICH PRACTITIONERS IN THE FIELD CONSULT WHEN THEY WANT TO KNOW
» 1% THE CORRECT WAY OF DOING A DISCRETE MULTIVARIATE ANALYSIS SUCH
20 AS WERE DOING HERE.
21 SO, I TOOK A SUGGESTION THEY HAD MADE AND COMBINED THAT
22 WITH THE TECHNIGUE DEVELOPED BY GRIZZLE, STARMER AND KOCH IN THE
23 REFERENCE GSK. FROM 1949, AND FROM THAT DEVELOPED A MODIFICATION
24 OF THE MANTEL-HAENSZEL PROCEDURE WHICH IS IN EFFECT A SAFE TEST
23 OF THE SIGNIFICANCE OF THE LOGISTIC REGRESSION CO-EFFICIENT.
WOODWORTH — DIRECT
'@. LET ME DIRECT YOUR ATTENTION TO THE NEXT PAGE OF GW-3. WHAT
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IS THAT SCHEDULE 17?
A. O0W-3, DOH. SCHEDULE 1 IS A SEMI-ENGLISH EXPLANATION TO A
COMPUTER PROGRAMMER OF HOW TO RUN THE MODIFIED MANTEL-HAENSZEL
PROCEDURE.
@. LET“S MAKE IT CLEAR FOR THE RECORD, WHO MADE THE
MODIFICATIONS FOR THE MANTEL-HAENSZEL PROCEDURE?
A. 1 MADE THE MODIFICATIONS.
s
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. EMPLOYING YOUR EXPERTISE?
10 A. EMPLOYING MY SKILLS AS A MATHEMATICAL STATISTICIAN.
ii @. AND IS THIS THE DIRECTIONS THAT YOU GAVE TO THE COMPUTER
12 PROGRAMMER ON HOW TO USE THAT METHOD?
13 A. THESE ARE. YES.
14 @. LET ME TURN YOUR ATTENTION NOW, TO SCHEDULE 3 IN GW-37
13 A. SCHEDULE 3 IS ENTITLED "REGRESSION DIAGNOSTICS."
16 THIS IN POINT OF FACT CONTAINS MOST OF THE. IN ONE
17 PROGRAM, CONTAINS MOST OF THE DIAGNOSTICS THAT I RAN. FOR
13 EXAMPLE, THE INFLUENCE DIAGNOSTICS ARE IN LINE 40 ON PAGE Z2.
- 19 | THE TEST FOR NONLINEARITY INTERACTIONS IS ON 70.
20 AND THE BFH VERSION OF THE MANTEL-HAENSZEL FROCEDURE
21 WHICH I SHORTENED TO THE MODIFIED MANTEL-HAENSZEL PROCEDURE,
22 STARTS ON LINE 77%.
23 QR. ALL RIGHT. THESE ARE ACTUAL INSTRUCTIONS THAT YOU GAVE THE
24 COMFUTER?
23 A. THIS IS A PROGRAM WRITTEN BY ME TO PRODUCE THE OUTPUT THAT'S
1265
WOODWORTH — DIRECT
"REPORTED IN TABLE 1.
i
3 @. NOW, PROFESSOR WOODWORTH. DO YOU HAVE ANY OPINION. BASED
3 UPON YOUR CONDUCT OF THESE DIAGNOSTIC TESTS, ON WHETHER THE
4 STATISTICAL PROCEDURES FOR CALCULATING STATISTICAL SIGNIFICANCE
LEVELS IN YOUR REPORT AND IN THE STUDIES BEFORE THE COURT ARE wu
) VALID AND ACCEPTABLE?
7 A. MY OPINION IS THAT THE STATISTICAL PROCEDURES USED IN
y
PREPARING THE REPORT ARE VALID, YES.
0 @. AND WHAT, THEREFORE, IS YOUR OPINION, IF ANY, ON THE ISSUE
10 IN QUESTION ABOUT RACE OF VICTIM?
11 A. MY OPINION IS THAT ON THE BASIS OF A VARIETY OF ANALYSES.
12 AND THE CONVERGENCE OF DIFFERENT FORMS OF EVIDENCE THAT THE RACE
13 OF VICTIM EFFECT CANNOT BE EXPLAINED BY ERRORS IN STATISTICAL
14 TECHNIGUE.
13 @. I HAVE ONE OR TWO ADDITIONAL MATTERS I WANT TO ASK YOU
1&6 ABOUT, PROFESSOR WOODWORTH.
17 ONE IS THIS WHOLE QUESTION OF R-SQUARE WHICH I THINK WE
13 INDICATED YESTERDAY WE WERE GOING TO GET TO. LET“S TURN BACK TO
w 12 TABLE 1, IN GW-4
20 | I NOTICE YOU HAVE A COLUMN THERE, IT’S ADJ R-SQUARE.
21 WHAT DOES THAT REFER TO?
22 A. THAT’ S ADJUSTED R-SAUARE. THAT IS AN ESTIMATE OF WHAT
23 PORTION OF THE VARIANCE, VARIATION IN THE DEPENDENT VARIABLE IS
24 ~~ |ACCOUNTABLE IN TERMS OF THE VARIABLES IN THE MODEL.
235 THE COURT: WHERE ARE YOLI?
WOODWORTH ~ DIRECT
MR. BOGER: IM SORRY. WE“RE BACK ON TABLE 1 WHERE WE
WERE DOING ALL THE DIAGNOSTIC TESTS, ON GW-4.
THE WITNESS: IF, FOR EXAMPLE, YOU LOOK AT THE
MID-RANGE MODEL AGAIN, WHICH IS THE ONE THAT GIVES US THE BEST
R-SQUARED, WE SEE THE FIGURE .35 OPPOSITE WLS.
THAT MEANS THAT 35 PERCENT OF THE VARIATION IN THE
SENTENCING. IN DEATH SENTENCING, IS ACCOUNTABLE. IT CAN BE
EXPLAINED IN TERMS OF, OF THE VARIABLES IN THIS MODEL.
WHICH INCLUDES. BY THE WAY, THE RACIAL VARIABLES.
BY MR. BOGER:
Q. WHAT WOULD A HIGH NUMBER MEAN? WHAT-S THE HIGHEST NUMBER
YOU CAN GET?
A. THE HIGHEST NUMBER YOQU CAN CET IS 1.00.
@. AND WHAT DOES THAT MEAN?
A. THAT MEANS THAT ONCE YOU KNOW THE INDEPENDENT VARIABLES.
THEN YOU KNOW, YOU CAN PREDICT PERFECTLY WHETHER A DEATH
SENTENCE OR A LIFE SENTENCE WOULD BE ATTAINED IN THAT CASE.
@. THAT WOULD BE A PERFECTLY PREDICTIVE MODEL?
A. PERFECTLY PREDICTIVE MODEL. YES.
@. WHAT DOES THE FACT THAT THE NUMBERS HERE LOOK LIKE THEY
RANGE FROM 39 TO 15 REFLECT?
A. THAT COULD INDICATE ONE OF SEVERAL THINGS. WHAT I SUSPECT
IT INDICATES IS THAT WHATEVER DOES ACCOUNT FOR THE DEATH
SENTENCING IS IN EFFECT RANDOM, THAT IS TO SAY, UNIGUE TO EACH
CASE DOESN‘T REPRESENT ANYTHING SYSTEMIC. IT SAYS THAT THE
— — — — J —— —— — f—————————— f——— ———— ———— ——————————————— ————————
| WOOLWORTH = DIRECT
1 SYSTEM IS LARGELY RANDOM FROM A STATISTICAL POINT OF VIEW.
< @. IS IT POSSIBLE FOR A SET OF VARIABLES --
3 THE COURT: WAIT, WAIT.
4 MR. BOGER: OKAY.
5 THE COURT: LET ME MAKE A NOTE OR TWO.
ii & MR. BOGER: SURE, YOUR HONOR. .
7 THE COURT: ALL RIGHT. IF I UNDERSTAND YOUR PROFESSOR —-
(= YOUR TESTIMONY. PROFESSOR. OF THE DIFFERENT MODELS THAT ARE
? SHOWN ON TABLE 1, PAGES 1 AND 2, THE MID-RANGE MODEL. WHATEVER
10 THAT IS, ACCOUNTS STATISTICALLY FOR ONLY 35 PERCENT OF THE
11 FACTORS WHICH CAUSE THE IMPOSITION OF THE DEATH PENALTY.
12 THE WITNESS: 39 PERCENT OF THE VARIATION IN THE DEATH
13 PENALTY IS THE WAY I WOULD STATE IT.
14 THE COURT: 39 OR 337
135 THE WITNESS: 35 PERCENT. 3% IF YOU COMPLICATE THE
16 MODEL SLIGHTLY.
17 BY MR. BOGER:
18 @. THAT'S THE WLS WITH SECOND ORDER INTERACTIONS THAT'S .397
19 A. YES. THE SAME VARIABLES ARE INVOLVED IN BOTH MODELS. IT’S
20 JUST THAT THE MODEL IS A LITTLE MORE FLEXIBLE IN THE SECOND
22 THE COURT: CAN YOU USE WEIGHTED LEAST SQUARES OR
23 LOGISTIC REGRESSION TO EXPLAIN A NON-RANDOM SYSTEM? I MEAN TO
24 EXPLAIN A RANDOM SYSTEM?
3)
th
THE WITNESS: YES, SIR. ONE CAN USE STATISTICAL
WOODWORTH ~ DIRECT
1 MODELING IN GENERAL TO EXPLAIN A RANDOM SYSTEM. THE POINT IS
2 THAT ONE CAN’T EXPLAIN RANDOMNESS. IF I COULD USE A —-
3 THE COURT: YOU CAN USE STATISTICAL TECHNIQUES TO SEE
A WHETHER OR NOT IT IS RANDOM.
5 THE WITNESS: EXACTLY.
® 6 THE COURT: IF THE SYSTEM IS RANDOM. IT WOULD BE ERROR
7 TO CONCLUDE THAT IT WAS ACTING ON RATIONAL VARIABLES: WOULDN‘T
8 IT?
9 THE WITNESS: NO, THE SYSTEM CAN ACT ON RATIONAL
10 VARIABLES AND YET ALLOW FOR UNIQUE FEATURES IN EACH INDIVIDUAL
11 CASE THAT CANNOT BE ACCOUNTED IN ANY SYSTEMATIC WAY.
12 | THE COURT: CANNOT BECAUSE THE SYSTEM IS TOTALLY RANDOM
13 DR CANNOT BECAUSE YOUR MODEL DOESN‘T MODEL THE SYSTEM?
14 THE WITNESS: EITHER INTERPRETATION IS POSSIBLE.
15 THE WAY ONE MAKES A DISTINCTION BETWEEN WHICH OF THOSE
1&6 TWO POSSIBILITIES IS THE TRUE ONE, IS TO ATTEMPT TO FIND
17 ADDITIONAL VARIABLES THAT WILL EXPLAIN MORE OF THE VARIATION.
18 THE COURT: DID YOU DO THAT?
w 19 THE WITNESS: PROFESSOR BALDUS DID THAT.
20 THE COURT: ALL RIGHT. DID YOU ALL RUN ANY R-SGUARE
21 COMPUTATIONS ON ANY OTHER MODEL, OTHER THAN THE ONES SHOWN ON
22 TABLE 17?
23 THE WITNESS: R-SQUAREDS ARE. I BELIEVE, ARE REFORTED
24 FOR ALL OF THE MODELS WE RAN.
23 THE COURT: IF THEY ARE. I HAVEN‘T BEEN NOTICING IT.
——— —— S—— —— ———— — ——— JR ee So—— —
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WOODWORTH — DIRECT
1 DO YOU KNOW WHICH MODEL WAS FOUND TO MOST CLOSELY MODEL
2 THE SYSTEM. THAT IS, TO PREDICT VARIATIONS?
3 THE WITNESS: I COULDN‘T SAY WITH ANY CERTAINTY. YOUR
4 HONOR. WHICH ONE DID.
5 THE COURT: DO YOU KNOW, COUNSEL?
i & MR. BOGER: MY IMPRESSION, YOUR HONOR, IS IT“S THE
7 MID-RANGE MODEL THAT‘3 REFLECTED HERE, HAS THE LARGEST R-SQUARE.
8 THE COURT: ASK DOCTOR BALDUS IF HE KNOWS OF A BETTER
? ONE.
10 MR. BOGER: I“LL CHECK WITH HIM.
11 THE COURT: PROFESSOR BALDUS. I“M GOING TO GIVE YOU
12 THAT DOCTORATE ANYHOW. WHY DONT YOU GO AHEAD AND TAKE IT?
13 MR. BOGER: YOUR HONOR, PROFESSOR BALDUS REPORTS THAT
14 THE 230-PLUS VARIABLE MODEL THAT WAS TALKED ABOUT SEVERAL TIMES
13 I THINK DURING PROFESSOR BALDUS- TESTIMONY PRODUCED AN R-SHUARE
16 OF BETWEEN 446 AND 43 PERCENT. HE“3S NOT ENTIRELY SURE. BUT IT IS
17 IN THAT RANGE.
13 THE COURT: SOMETIME BEFORE THIS HEARING IS OVER WITH.
w 19 GET THAT PROPERLY INTO THE RECORD.
20 MR. BOGER: WE-LL NAIL THAT NUMBER DOWN, YOUR HONOR.
23 THE COURT: IF IT’S ON ONE OF THE EXHIBITS THATS
22 SATISFACTORY. BUT IF IT’S NOT, THEN —
23 MR. BOGER: FINE.
24 BY MR. BOGER:
23 QA. PROFESSOR WOODWORTH. I WANT TO ASK, IS IT POSSIBLE FOR A SET
WOODWORTH — DIRECT
1 OF VARIABLES TO HAVE AN R-SGQUARE OF 392 OR 446 AND YET STILL
2 ACCOUNT FOR ALL THE SIGNIFICANT VARIATION APART FROM THE
3 RANDOMNESS?
4 A. YES.
be WHAT WE’RE DEALING WITH HERE IS WHAT WE CALL
® 4 PROBABILISTIC PREDICTION. THERE ARE MANY PHENOMENA IN THE WORLD
7 WHICH SIMPLY HAVE A RANDOM KNUB THAT CAN‘T BE REMOVED IN ANY
8 SENSIBLE WAY.
? R. LET ME ASK YOU FOR AN ILLUSTRATION, IF THERE IS ONE?
10 A. WELL, A SIMPLE ILLUSTRATION, IT’S A HYPOTHESIS CALIFORNIA.
i1 BUT A SIMPLE ILLUSTRATION NEVERTHELESS, IS THIS.
12 WE CAN IMAGINE A CLUB THAT, TO WHICH EQUAL NUMBERS OF
13 MEN AND WOMEN APPLY FOR MEMBERSHIP, AND LETS SAY THAT THE WAY
14 OF DECIDING WHETHER A PERSON GETS ADMITTED IS TO ROLL A
13 SIX-SIDED DIE.
16 IF IT’S, FOR THE MEN, IF THE DIE COMES UP 3, 4, 5 OR 6,
17 ANY ONE OF THOSE FOUR NUMBERS, THEN THE MAN WILL BE ADMITTED.
13 S0 THE MEN WILL HAVE A 67 PERCENT CHANCE OF BEING ADMITTED. 67
w 19 PERCENT OF THE MEN ON THE AVERAGE WILL BE ADMITTED.
20 FOR THE WOMEN ON THE OTHER HAND, ADMISSION IS ACHIEVED
21 ONLY IF THEY GET A S OR A 4 ON THE ROLL. SO ONLY 33 PERCENT OF
22 THEM WILL BE ADMITTED.
23 SO IF WE DID STATISTICS ON THIS, IF WE DID A RATE OF
24 ADMISSION FOR WOMEN AND RATE OF ADMISSION FOR MEN, WE WOULD SEE
25 33 PERCENT FOR WOMEN AND 6&7 PERCENT FOR MEN.
—— ——— —— —— ———— ———— — ——— A— —— — f—
1271
WOODWORTH — DIRECT
1 NOW IF WE DID A REGRESSION ON THIS WHERE THE
2 INDEPENDENT VARIABLE IS THE SEX, AND IF WE LET X EQUAL 1 FOR MEN
3 AND EQUALS ZERO FOR WOMEN, THEN THE REGRESSION WOULD FRODUCE A
4 MODEL THAT SAYS "Y", WHICH IS THE AVERAGE ADMISSION RATE, EQUALS
3 ONE-THIRD PLUS ONE-THIRD TIMES "X". IN OTHER WORDS. THE
® & REGRESSION CO-EFFICIENT ON "X" IS ONE-THIRD. THAT IS TO SAY,
7 THAT THE DISPARITY BETWEEN MEN AND WOMEN IS 33 FERCENT. WHICH IS
8 WHAT WE JUST SAW.
2 NOW THE R=SQUARED FOR THAT MODEL IS .11, I HAVE
10 CALCULATED IT PREVIOUSLY. HAS A VERY LOW R-SQUARED. BUT
11 NEVERTHELESS THE REGRESSION MODEL DESCRIBES ALL THERE IS TO BE
12 DESCRIBED ABOUT THAT SYSTEM. THERE’S THIS RANDOM KNUB IN HERE
13 WHICH IS DETERMINED BY THE ROLL OF THE DIE. WHICH YOU SIMPLY
14 {CANNOT ACCOUNT ON ANY RATIONAL BASIS.
13 NOW, OF COURSE, THIS IS A DETERMINISTIC UNIVERSE. ONE
146 PRESUMES. AND THEREFORE THE ROLL OF THAT DIE IS ACCOUNTABLE. I
17 MEAN IT’S ACCOUNTABLE BY HOW MANY TIMES IT SPINS THROUGH THE
18 AIR, AND HOW, WHAT ANGLE IT HITS THE TABLE, AND HOW ROUGH THE
iw A7 TABLE IS AND ALL THOSE THINGS. BUT IT WOULD BE FRUITLESS TO
20 SEARCH FOR THOSE ADDITIONAL EXPLANATORY VARIABLES BECAUSE THEY
21 DON’T ACCOUNT FOR THE DISPARITY BETWEEN MEN AND WOMEN. WHAT
oe ACCOUNTS FOR THAT IS THE ADMISSION POLICY. OR. IN STATISTICAL
23 TERMS. THE SEX OF THE APPLICANT ACCOUNTS FOR THE DISPARITY.
24 §0, THE PURFOSE OF THIS ILLUSTRATION IS TO SAY THAT ONE
23 CAN EASILY IMAGINE HYPOTHETICAL SYSTEMS IN WHICH THERE I3 THIS
WOODWORTH — DIRECT
1 RANDOM KNUB. NOW, IT“S NOT REALLY RANDOM, IT-S DETERMINISTIC IN
2 A CERTAIN SENSE. BUT THE THINGS THAT ARE DETERMINING IT ARE NOT
ASSOCIATED WITH THE SEX OF THE APPLICANT. THEY HAVE NOTHING TO
DO WITH THAT.
@. THATS THE THROW OF THE DIE?
3
4
5S
® 4 A. THAT'S RIGHT, WHATEVER DETERMINES HOW THAT DIE LANDS.
7 THE COURT: OTHER THAN AN ABERRANT EXAMPLE SUCH AS THAT,
8 IS THERE A VALID METHOD OF HOW ACCURATELY YOUR MODEL IS MODELING
9 REALITY. OR SHOULD I JUST DISREGARD IT COMPLETELY?
10 THE WITNESS: OH, NO. YOU SHOULDN‘T DISREGARD IT
COMPLETELY. IT SUGGESTS THAT TO BEST OF OUR KNOWLEDGE. THERE IS
12 A RANDOM KNUB IN THE SYSTEM THAT CANNOT BE ACCOUNTED BY
13 RATIONAL, LEGALLY BASED VARIABLES.
14 BY MR. BOGER:
15 @. DOES THE RANDOMNESS HAVE TO NECESSARILY REFLECT COMPLETE
16 ABRITRARINESS?
17 A. NO.
18 @. COULD IT REFLECT IDIOSYNCRACIES IN THE PARTICULAR CASE?
w 19 A. EXACTLY. THAT RANDOM ELEMENT, THE WORLD REALLY ISN'T
20 RANDOM. WHEN WE SAY SOMETHING IS RANDOM, WE SIMPLY MEAN ITS
21 UNACCOUNTABLE, AND THAT WHATEVER DOES ACCOUNT FOR IT IS UNIQUE
22 TO EACH CASE. $0 THAT RANDOMNESS THERE —-—
23 | THE COURT: THAT MEANS THAT IT’S RATIONAL.
24 THE WITNESS: IT COULD MEAN THAT IT’S RATIONAL. IT
235 COULD MEAN THAT IT’S RELATED TO THINGS, LIKE CASE LOAD
16
17
12
WOODWORTH — DIRECT
PRESSURES.
THE COURT: I MEAN IT HAS AN EXPLANATION OTHER THAN
PURE RANDOMNESS.
THE WITNESS: IT HAS AN EXPLANATION OTHER THAN PURE
RANDOMNESS. THIS RANDOMNESS THAT WE USE IS A TAG THAT
PHENOMENA WHICH ARE UNPREDICTABLE ON THE BASIS OF VARIABLES WE
HAVE OBSERVED.
WHAT WOULD BE IMPORTANT ABOUT THIS RANDOMNESS IS
WHETHER OR NOT YOU’RE WILLING TO ASSUME THAT IT ACCOUNTS FOR THE
RACIAL EFFECTS.
BY MR. BOGER:
@. DO THE R-SQUARES THAT ARE REFLECTED IN THE TABLE 1 AND THE
OTHER R-SQUARES COMPUTED FOR THESE TABLES AND FIGURES EMPLOYED
IN THE REPORT. AND TESTIFIED TO HERE IN COURT. DIMINISH YOUR
CONFIDENCE AS A STATISTICIAN IN THE RACIAL EFFECTS THAT ARE
REFLECTED IN THE CO~EFFICIENTS?
A. NO, INDEED. FOR EXAMPLE, IN THE HALOTHANE STUDY. WHEN WE
TOOK INTO ACCOUNT A NUMBER OF BACKGROUND VARIABLES DETERMINING
POST SURGICAL DEATH. WE TOOK INTO ACCOUNT THE AGE. THE PHYSICAL
STATUS OF THE PATIENT. THE LENGTH OF THE OPERATION. IN FACT, THE
TYFE OF OPERATION. WE DISTINGUISHED BETWEEN GALL BLADDERS AND
APPENDECTOMIES. WHEN WE ACCOUNTED FOR ALL THESE RATIONAL
REASONS TO EXPLAIN THE DISPARITIES IN DEATH RATES, THERE WERE
STILL RANDOMNESS. WHETHER OR NOT YOU DIE AFTER SURGERY, EVEN
AFTER ACCOUNTING FOR ALL THESE FACTORS IS TO A CERTAIN EXTENT
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WOODWORTH — DIRECT
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THE TOSS OF A COIN.
NOW IT“S NOT REALLY THE TOSS OF A COIN. THERE ARE
THINGS THAT CAUSE THAT. BUT THOSE THINGS ARE PROBABLY UNRELATED
TO THE ANAESTHETIC THAT WAS USED IN THE SYSTEM. AND THEY
PROBABLY ARE UNIQUE TO EACH PARTICULAR PIECE OF SURGERY.
WEATHER PREDICTION, WEATHER IS DETERMINED BY PHY3ICS OF
THE ATMOSPHERE. NEVERTHELESS TAKING INTO ACCOUNT ALL THE
VARIABLES THAT WE“RE CAPABLE OF TAKING INTO ACCOUNT RIGHT NOW.
ALL WE CAN OFFER IS A PROBABILITY PREDICTION. WHETHER OR NOT
ITS GOING TO RAIN TOMORROW. WE MIGHT KNOW THERE IS A 30 PERCENT
CHANCE OF RAIN TOMORROW, BUT WHETHER OR NOT IT ACTUALLY OCCURS
IS A COIN TOSS, BECAUSE WERE SIMPLY INCAPABLE OF OBSERVING THE
FACTORS WHICH ACTUALLY DETERMINE RAINFALL TOMORROW.
THE COURT: I REMEMBER AN OLD PROBLEM FROM LOGIC WHERE
YOU WERE PUT IN A ROOM AND YOU COULD ASK TWO GUESTIONS AND ONE
OF THE DOORS LED TO FREEDOM AND ONE OF THEM LED TO CERTAIN DEATH.
AND YOU COULD ONLY ASK ONE QUESTION TO FIND OUT WHETHER YOU GOT
OUT OR NOT. BUT THE POINT IS IF YOU WENT OUT OF THE DOOR. YOU
ALWAYS GOT DEATH. IF YOU WENT OUT THE WRONG DOOR, YOU ALWAYS
GOT DEATH.
THE WITNESS: RIGHT.
THE COURT: IF YOU WENT OUT THE RIGHT DOOR YOU ALWAYS
GOT LIFE.
IF I UNDERSTAND WHAT YOU ARE TELLING ME. SOMEWHERE IN
THE HIGH 30“S TO A MID-40 RANGE IS THE BEST THAT YOU CAN ACCOUNT |
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1275
WOODWORTH ~ DIRECT
FOR THE VARIATIONS IN THE DEATH PENALTY, WHICH IS TO SAY. IN
TOTO, INCLUDING PROPER AND IMPROPER CONSIDERATIONS, THE TOTAL
NUMERICAL EFFECT. IF YOU WILL, IS, YDU CAN ONLY ACCOUNT FOR THE
RESULT IN 35 PERCENT OF THE CASES COR YOU CAN ONLY ACCOUNT FOR 35
PERCENT OF THE VARIATION IN WHATEVER. THE. UNLIKE THE ALWAYS.
THE INEVITABLE CONCLUSION FROM X PLUS Y PLUS Z EQUALS SO AND SO.
THE BEST YOU CAN DO IS TO ACCOUNT FOR IN THE 3075S, 403 OF WHEN
SOMEBODY IS GOING TO GET THE DEATH PENALTY.
THE WITNESS: WELL, LET ME TRY TO CLARIFY EXACTLY WHAT
WE MEAN.
WE CAN’T ACCOUNT FOR THE DEATH PENALTY IN ANY CASES.
WHAT WE HAVE BEEN ABLE TO DO IS IDENTIFY CLASSES OF SIMILARLY
SITUATED DEFENDANTS, AND WHEN I SAY SIMILARLY SITUATED. I MEAN
WITH RESPECT TO AGGRAVATING AND MITIGATING CIRCUMSTANCES AND
WITH RESPECT TO THE RACIAL COMBINATION.
WE CAN IDENTIFY CLASSES OF SIMILARLY SITUATED CASES
WHERE WE KNOW ON AVERAGE THE DEATH SENTENCING RATE. 350 WE CAN
PREDICT THE DEATH SENTENCE IN THE FOLLOWING
SENSE:
WE CAN PLACE A DEFENDANT IN A CATEGORY OF DEFENDANTS IN
WHICH THE DEATH SENTENCING RATE IS SAY NINETY PERCENT.
NOW, BY ANYBODY’S STANDARDS THATS PRETTY GOOD
PREDICTION. AND IN FACT, IF YOU, IF YOU TALLY OUR RESULTS BY
THE NUMBER OF CORRECT PREDICTIONS WE MAKE. AND WHERE YOU COUNT A
CORRECT PREDICTION AS PREDICTING DEATH IF WE PLACE THEM IN A
-
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1276
WOODWORTH — DIRECT
FIFTY PERCENT OR HIGHER CATEGORY. IN PREDICTING LIFE IF WE PLACE
THEM UNDER FIFTY, WE PREDICT IN THE HIGH 90“S. THE R-SQUARED IS
NOT THE ONLY MEASURE OF HOW WELL THIS MODEL IS DOING.
ONE CAN ALSO JUDGE THE ACCURACY OF THIS MODEL BY HOW,
BY WHETHER WE PLACE MOST CASES IN, IN A CATEGORY WHERE WE HAVE A
FAIRLY HIGH, WERE PREDICTING DEATH WITH A FAIRLY HIGH
PROBABILITY.
SEE. R-SQRUARED IS A TRICKY STATISTIC WHEN ONE IS
DEALING WITH A ZERO - 1 VARIABLE. ESPECIALLY WHEN ONE IS DEALING
WITH A RARE EVENT.
THE COURT: WHAT IM TRYING TO UNDERSTAND, THE R-SQUARE
IDEA, IN TERMS OF, GOING BACK TO MY EXAMPLE, IF YOU HAD SOMEBODY
GOING THROUGH THE SAME DOOR, WHICH IS THE VARIABLE, WHICH DOOR
YOU GO THROUGH, AND IF THEY INVARIABLY WENT THROUGH ONE DOOR.
YOU WOULD ALWAYS BE ABLE TO PREDICT THE OUTCOME. AND THEN FAIRLY
EASY FOR ME AS A JUDGE TO SAY THAT THE DOOR IS MAKING THE
DIFFERENCE.
HERE, YOU HAVE LOOKED AT ALL THE DIFFERENT DOORS THAT
THE PEOFLE WENT THROUGH. BOTH PROFERLY CONSIDERED DOGRS AND
IMPROPERLY CONSIDERED DOORS. AND STILL, YOU CAN‘T EXPLAIN ON
BALANCE WHAT HAPPENS TO THEM.
THE WITNESS: WE CAN EXPLAIN ON AVERAGE WHAT HAFPENS TO
THEM. WE CAN SAY, TRY AS HARD AS —--
THE COURT: YOU CAN‘T EXPLAIN BASED ON THE DOORS THAT
THEY WENT THROUGH. I.E.. THE VARIABLES, HOW THEY GOT LIFE OR
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1277
WOODWORTH — DIRECT
DEATH. DON BALANCE.
THE WITNESS: NO, BUT WE CAN SAY THAT IF THEY GO
THROUGH CERTAIN DOORS THEY HAVE A GREATER RISK OF DEATH. THAT'S
WHAT WERE SAYING.
THE COURT: AND THAT MAKES IT A RATIONAL SYSTEM, I
THINK.
THE WITNESS: RATIONAL IF THOSE DOORS ARE LEGALLY
PERMISSIBLE.
THE COURT: WELL, RATIONAL IN THAT IT IS. IT CAN BE
EXPLAINED BY RELATIONSHIF TO HOW THE SYSTEM IS THINKING ABOUT
THINGS -
THE WITNESS: CORRECT.
THE COURT: -—— AND REACTING TO STIMULI AS OPPOSED TO
PURELY RANDOM.
THE WITNESS: THAT'S CORRECT.
NO, THE SYSTEM IS DEFINITELY NOT PURELY RANDOM. THIS
SYSTEM VERY DEFINITELY SORTS PEOFLE INTO CATEGORIES ON RATIONAL
GROUNDS. AND THOSE DIFFERENT CATEGORIES RECEIVE DEATH AT
DIFFERENT RATES.
THE COURT: ALL RIGHT.
BY MR. BOGER:
'@. PROFESSOR WOODWORTH. THE JUDGE HAS INDICATED THAT HES NOT
ENTIRELY SURE WHICH MODELS WE“RE TALKING ABOUT, THE 7. ELEVEN,
MID-RANGE AND S0 FORTH. IS THERE ANY NOTE NEXT TO THIS TABLE
THAT MIGHT REFLECT WHAT MODELS WE“RE SPEAKING OF?
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WOODWORTH — DIRECT
A. WELL, THERE-“S NOTES FOLLOWING THE TABLE WHICH DEFINE THE
ROW, STUBS IN A COLUMN, THE ROW LABELS AND THE COLUMN HEADS. AND
ALS0 LISTS THE VARIABLES IN THE MODELS.
NOW, THIS IS IN COMPUTERESE. I’M SORRY TO SAY. BUT THIS
CAN BE TIED BACK TO ONE OF PROFESSOR BALDUS” EXHIBITS, THE ONE
WE CALL THE TECHNICAL APPENDIX.
@. DO YOU HAVE, DO YOU KNOW WHICH GROUPS ARE TIED TQ WHICH
APPENDICES OR EXHIBITS?
THE COURT: WE CAN DO THAT IN BRIEFS, OR OTHERWISE, WE
DONT NEED TO DO THAT.
MR. BOGER: ALL RIGHT. YOUR HONCR.
THE COURT: I DIDN‘T MEAN TQ SAY THAT IT WAS
'UNLEARNABLE, I MEANT TO SAY THAT I SIMPLY DIDN’T RECALL WHICH
TABLE IT WAS IN.
BY MR. BOGER:
‘A. NOW YOUYVE TALKED ABOUT THE SAMPLING PLAN AND YOU HAVE
{
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TALKED ABOUT THE METHODS USED, LEAST SQUARES REGRESSION,
LOGISTIC REGRESSION, INDEX METHOD: YOU-VE TALKED ABOUT THE TEST
FOR STATISTICAL SIGNIFICANCE; YOUVE TALKED ABOUT R-SGUARE.
LET ME ASK YOU DONE OR TWO OTHER QUESTIONS ABOUT THE
METHODS AND PROCEDURES THAT YOU HAVE USED.
WHAT STATISTICAL PROGRAM DID YOU USE TO CONDUCT THE
COMPUTER ANALYSIS OF THESE DATA?
A. MOST OF THEM WERE DONE ON THE STATISTICAL ANALYSIS SYSTEM
PACKAGE, OR SAS FOR SHORT.
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—— — —— —————| —— —————— —— ——— ——— — —— — —— ————
279
WOODWORTH -~ DIRECT
RA. IS THAT 5-A-57
A. YES, S-A-S.
AND THE LOGISTIC RUNS. MY LOGISTIC RUNS WERE RUN USING
BMDP, UNIVERSITY CALIFORNIA AT LOS ANGELES.
@. ARE THOSE ACCEPTABLE STATISTICAL COMPUTING TECHNIQUES OR
SOFTWARE PROGRAMS?
A. THOSE TWO THAT I MENTIONED ARE THE ONES THAT ARE CONSIDERED
THE MOST ACCURATE, AND WELL WRITTEN BY THE PROFESSIONAL
STATISTICAL COMMUNITY.
@. NOW. BEFORE WE REACH THE LAST FIGURES WE“RE GOING TO BE
DISCUSSING, I WOULD LIKE TO ASK YOU BRIEFLY TQ EXPLAIN THE
PROBLEM OF COLLINEARITY THAT YOU ALLUDED TO YESTERDAY?
A. COLINEARITY IS ACTUALLY A SIMPLE CONCEPT. IT. WELL, LET'S
TAKE THIS EXAMPLE. AGAIN.
@. YOU’RE REFERRING TO YOUR STRAW MODEL?
A. YEAH. LET ME TALK IN GENERAL TERMS. WE HAVE, IF YOU
RECALL, TWO INDEPENDENT VARIABLES REPRESENTED BY THIS AXIS. AND
THIS AXIS: AND A DEPENDENT VARIABLE REPRESENTED BY THE HEIGHT OF
THE STRAW HERE.
AND THE FIGURE SHOWS THAT THE POINTS ROUGHLY FOLLOW A
PLANE WHICH HAS A CERTAIN SLOPE IN ONE DIRECTION AND A CERTAIN
SLOPE IN THE OTHER DIRECTION. IN OTHER WORDS. REGRESSION
CO-EFFICIENTS.
NOW WHAT COLINEARITY MEANS. WELL COLINEARITY MEANS
LYING ON THE SAME STRAIGHT LINE, AND WHAT IT MEANS IS THAT THE
1230
WOODWORTH - DIRECT
TWO INDEPENDENT VARIABLES. NOW HERE, LOOKING AT THE END VIEW, WE
SEE THE DISTRIBUTION OF THE INDEPENDENT VARIABLES, WHAT
COLINEARITY MEANS IS THAT THE INDEPENDENT VARIABLES ARE
THEMSELVES HIGHLY CORRELATED.
NOW FOR CONCRETENESS. LET“S SAY THAT THIS IS SOME INDEX
OF PRIOR RECORD. AND THAT THIS IS SOME INDEX OF THE SERIOUSNESS
OF. THE CRIME IN QUESTION.
NOW. IN THIS DIAGRAM. WE SEE THAT THERE ARE CASES WHICH
ARE, COMMITTED SERIOUS CRIMES. THEY’RE OVER HERE ON THIS END OF
THIS AXIS, BUT THEY DON‘T HAVE MUCH OF A PRIOR RECORD. THIS
GROUP OF CASES RIGHT HERE. FOR EXAMPLE.
AND WE ALSO HAVE CASES AT THE OTHER EXTREME WHICH HAVE
QUITE A SERIOUS PRIOR RECORD, BUT DIDN‘T COMMIT A VERY SERIOUS
CRIME IN THE PRESENT INSTANCE.
S0 THIS BASE IS NOT VERY COLINEAR.
ON THE OTHER HAND, ONE COULD IMAGINE A SITUATION IN
WHICH THE SERIOUS CRIMES WERE COMMITTED BY THE PEOFLE WITH
SERIOUS RECORDS, AND MINOR CRIMES WERE COMMITTED BY PEOPLE WITH
RELATIVELY UNEVENTFUL PRIOR RECORDS. AND THAT DATA SET WOULD
LOOK SOMETHING LIKE -——
THE COURT: WAIT A MINUTE, YOURE DESTROYING EVIDENCE.
THE WITNESS: AM I? ILL RESTORE THE EVIDENCE. YOUR
HONCR.
IT'S JUST A STRAW IN THE WIND.
THIS IS A COLINEAR DATA SET IN WHICH THE TWO VARIABLES
1231
WOODWORTH — DIRECT
1 ARE HIGHLY CORRELATED WITH EACH OTHER.
2 NOW NOTICE WHAT WE‘VE DONE IS INSTEAD OF BEING ABLE TO
3 HAVE A WIDE VIEW OF THIS SURFACE, NOW FROM THE POINT OF VIEW OF
4 THE DATA, THE ONLY PART OF THIS SURFACE WE GET TO SEE IS THE
= PART THAT-S RIGHT OVER THE DATA.
b BUT THAT DOESN’T CHANGE THE SLOPES. SEE, BY LOOKING AT
7 A SMALL SECTION OF THE SURFACE YOU DON’T CHANGE THE SLOPES IN
8 EITHER DIRECTION. SO COLINEARITY DOESN” T INHERENTLY BIAS THE
? REGRESSION CO-EFFICIENTS. IT DOESNT PRODUCE ANY PREDICTABLE
0 CHANGE IN THE REGRESSION CO-EFFICIENTS.
11 HOWEVER, WHAT IT DOES IS THE FOLLOWING. SEE. NOW WERE
12 TRYING TO BALANCE THIS SURFACE ON A SAW BLADE, $0 IT’S GOING TO
13 WOBBLE IN THE NARROW DIRECTION, THAT IS TO SAY, IT’S GOING TO BE
14 MORE SENSITIVE TO VARIATION IN THE DATA.
15 AND THEREFORE WHAT HAPPENS. WHAT THE MULTI-COLINEARITY
146 PROBLEM PRODUCES IS THAT IT RAISES THE STANDARD DEVIATION OF THE
17 REGRESSION CO-EFFICIENTS., IT DOES NOT BIAS THE CO-EFFICIENTS
13 THEMSELVES. THE SLOPES THEMSELVES ARE STILL ESTIMATED IN AN
w 19 UNBIASED WAY. BUT THEIR SIGNIFICANCE WILL BE REDUCED BECAUSE AS
20 YOU RECALL. THE SIGNIFICANCE 1S OBTAINED BY DIVIDING THE SLOFE,
21 THE REGRESSION CO-EFFICIENT. BY ITS STANDARD ERROR AND THEREFORE
22 IF THE STANDARD ERRORS INCREASE, THEM THOSE RATIOS WILL BECOME
23 SMALLER, BECOME MORE DIFFICULT TO SATISFY THE TWO-STANDARD
24 DEVIATION RULE.
23 BY MR. BOGER:
WOODWORTH — DIRECT
1 @. WHAT IS THE EFFECT OF POSSIBLE MULTI-COLINEARITY ON
2 SOMETHING LIKE THE RACIAL EFFECT?
3 A. WELL, THE ONLY EFFECT WOULD BE TO REDUCE THE SIGNIFICANCE OF
4 IT. IN THE SENSE WE FOUND IT TO BE SIGNIFICANT THAT MEANS THAT
5S DESPITE COLINEARITY. OF COURSE. WE STILL HAVE SIGNIFICANT RACIAL
i é EFFECT.
7 THE OTHER EFFECT. BY THE WAY, LET ME MENTION, I3 THAT
8 COLINEARITY IS THE VERY ISSUE AT HAND. WHEN WE“RE TALKING ABOUT
? A RACIAL EFFECT. WE’RE SAYING, CAN THE CORRELATION BETWEEN RACE
10 OF VICTIM AND, SAY. THE LEVEL OF AGGRAVATION OF THE CRIME
11 ACCOUNT FOR THE RACE OF VICTIM EFFECT.
12 AND THE LINEAR. BY INTRODUCING VARIABLES RELATING TO
13 THE LEVEL OF AGGRAVATION OF THE CRIME. WE ADJUST THAT REGRESSION
14 CO-EFFICIENT FOR THE EFFECTS OF THOSE VARIABLES.
15 HAVING ADJUSTED FOR THE EFFECTS OF THOSE VARIABLES,
16 COLINEARITY WITH ADDITIONAL VARIABLES ADDED TO THE EQUATION WILL
17 NOT BIAS THE CO-EFFICIENTS.
18 @. SO IF ONE HAD TO TESTIFY THAT COLINEARITY HAD A HEIGHTENING
w hg EFFECT ON RACIAL VARIABLES OR A DAMPENING EFFECT, WHICH WOULD
20 IT RE?
21 A. IT WOULD DAMPEN THEM. THE THEORETICAL EFFECT IS TO DAMPEN
22 THE RACIAL EFFECTS BY INTRODUCING COLLINEAR VARIABLES.
23 @. SO IF RACIAL EFFECTS ARE REFLECTED IN THE TABLES AND
24 REGRESSIONS, WHAT CAN ONE CONCLUDE ABOUT THE COLINEARITY
235 PROBLEM?
WOODWORTH - DIRECT
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A. ONE CAN CONCLUDE THAT IT“3 NOT RELEVANT.
THE COURT: YOU WENT THROUGH A PROCESS IN YOUR
SCREENING OF THROWING OUT THE MOST INFLUENTIAL CASES.
THE WITNESS: YES, SIR.
THE COURT: IT SEEMS FROM JUST JUDICIALLY EXAMINING THE
MODEL THAT THIS MODEL WOULD EVEN BE MORE SUBJECT TQ -—-
THE WITNESS: RIGHT.
THE COURT: ~- THAT SORT OF THING, AND IT MAY BE
EXPLAINED TO SOME EXTENT BY STANDARD DEVIATION BUT I PRESUME
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THATS KIND OF A MEAN OR AVERAGE OR SOME SORT OF THING.
1} DID YOU RUN ANY TESTS WHERE YOU THREW OUT THE MOST
12 INFLUENTIAL CASES IN A COLLINEAR SITUATION TO SEE WHAT WOULD
13 HAFPEN, OR DO YOU THINK YDU’VE ALREADY DONE THAT?
14 THE WITNESS: WE ARE IN A COLINEAR SITUATION, YOUR
13 HONOR.
16 THE COURT: WE ARE?
17 THE WITNESS: YES. THE DATA DO HAVE EXTENSIVE
13 COLINEARITIES, SO THAT MY WORK, MY INFLUENCE, MY THROWING OUT
w 19 THE MOST INFLUENTIAL POINTS DID IN FACT -—-
20 THE COURT: YOQU-VE DONE THAT. THEN?
21 THE WITNESS: IN EFFECT. YES.
<2 MR. BOSER: YDUR HONOR. AT THIS TIME. BEFORE WE REACH
23 PROFESSOR WOCODWORTH’S LAST EXHIBIT, I MOVE THE ADMISSION OF GW-3
24 AND GW-4 INTO EVIDENCE.
23 THE COURT: WELL, UNDER MY BASIC APPROACH THERE ARE
1284
WOODWORTH — DIRECT
1 SOME PORTIONS OF THOSE THAT ARE NOT ADMISSIBLE, AND SOME WHICH
2 MAY BE.
3 MR. BOGER: I WAS PREPARED TO REMOVE PORTIONS OF THEM.
LET ME IDENTIFY, YOUR HONOR. IN GW-3, WE“RE
PARTICULARLY INTERESTED IN PAGE 4, FOOTNOTE 1, WHICH IS THE
MATHEMATICAL CALCULATION OF THE CRESSIE SAFE METHOD. FOR
4
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7 WHATEVER THAT MAY BE WORTH. WE WOULD BE INTERESTED ——
8 THE COURT: AND?
; 4 MR. BOGER: WE WOULD BE INTERESTED IN THE REFERENCE
0 PAGE WHERE PROFESSOR WOODWORTH MADE REFERENCE TO THE SOURCES
11 UPON WHICH HE RELIED IN CONSTRUCTING THE CRESSIE METHOD AND THE
2 MODIFIED MANTEL-HAENSZEL METHOD. THAT’S THE PAGE THAT PRECEDES
13 THE SCHEDULES.
14 AND THEN THE SCHEDULES THEMSELVES AS HE TESTIFIED
13 REFLECT HIS SEMI-ENGLISH INSTRUCTIONS ON THE MODIFIED
16 MANTEL-HAENSZEL PROCEDURE. AND THE EXAMPLES OF THE COMPUTER
¥7 INSTRUCTIONS THAT HE’S GIVEN BOTH WITH RESPECT TO CRESSIE’S
13 METHOD AND MODRIFIED MANTEL-HAENSZEL.
& 19 THE COURT: WHAT SAY YOU, MS. WESTMORELAND?
20 MS. WESTMORELAND: YOUR HONOR, I PRESUME FOOTNOTE 1
23 WOULD BE ADMITTED, IS BEING SUBMITTED BASICALLY AS A STATEMENT
a2 THIS IS WHAT PROFESSOR WOODWORTH RELIED UPON IN MAKING HIS
23 CALCULATIONS. IF THAT IS THE PURPOSE FOR IT. THEN I HAVE NO
24 PARTICULAR OBJECTION TO THAT.
23 1 BELIEVE HE REFERRED TO THE REFERENCES IN HIS
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WOODWORTH — DIRECT
TESTIMONY. I DON'T SEE NECESSARILY THE NEED FOR A LIST OF
REFERENCES IM THAT REGARD.
AND I DON’T SEE THE RELEVANCE OF THE SCHEDULES. EXCEPT
ONCE AGAIN, I SUPPOSE IT IS ILLUSTRATIVE OF THE THINGS HE MAY
HAVE RELIED UPON IN CONDUCTING HIS CALCULATIONS. IF THAT'S THE
PURPOSE, FOR THAT LIMITED PURPOSE I WOULD NOT HAVE PARTICULAR
OBJECTIONS TO THOSE DOCUMENTS.
MR. BOGER: I THINK WE DO OFFER THE SCHEDULES AS FROOF
OF THE METHODS. NOT SIMPLY THAT HE RELIED UPON, BUT THE METHODS
HE CARRIED OUT. USING THE COMPUTER TO CONDUCT THESE ANALYSES.
THE COURT: LET ME ASK YOU ABOUT SCHEDULE 1.
IS THAT IN FACT WHAT YOU COMMUNICATED TO THE COMPUTER
OPERATOR OR IS THAT AN EXHIBIT PREPARED FOR LITIGATION BASED ON
YOUR RECOLLECTION OF WHAT YOU TOLD THE COMPUTER OPERATOR?
THE WITNESS: THAT’S WHAT I DICTATED TO PROFESSOR
BALDUS OVER THE TELEPHONE SOME MONTHS AGO IN SYRACUSE AND WHICH
HE PASSED ON TO HIS COMPUTER PROGRAMMER.
THE COURT: ILL ADMIT SCHEDULE 1.
AND WHAT DOES SCHEDULE 2 SHOW?
BY MR. BOGER:
R. PROFESSCR BALDUS, WOODWORTH, EXCUSE ME?
A. SCHEDULE 2, PARDON ME, THIS SHOWS THE CRESSIE‘S METHOD, AS
PROGRAMMED BY ME.
THE COURT: IF YOU SAY <0.
THE WITNESS: YES.
WOODWORTH — DIRECT
1 THE COURT: OKAY.
2 THE WITNESS: IT WOULD BE INTELLIGIBLE TO A SAS
3 PROGRAMMER.
4 THE COURT: OKAY, SCHEDULES 1 AND 2 ARE ADMITTED.
S I WILL NOT ADMIT THE OTHERS.
Rd b MR. BOGER: I DIDNT GET YOUR HONOR‘S RULING ON ——
7 THE COURT: I ONLY ADMITTED SCHEDULES 1 AND 2.
8 MR. BOGER: ALL RIGHT.
? THE COURT: AND THAT WAS —-- THE WHOLE BULK OF THAT
10 COMPUTERESE IN BACK OF THE EXHIBIT IS ALL SCHEDULE 2, ISNT IT?
33 MR. BOGER: THERE-“S A SCHEDULE 3 THERE THAT REFLECTS
12 THE REGRESSION DIAGNOSTICS.
13 THE COURT: THAT IS THE SAME THING -- IS THAT A
14 COMPUTER FROGRAM?
135 THE WITNESS: YES.
16 THE COURT: DO YOU OFFER IT?
17 MR. BOGER: YES, YOUR HONOR.
12 THE COURT: OKAY. IT“S ADMITTED.
WwW 19 MR. BOGER: AND WITH RESPECT TO GW-4, WE HAVE, OF
20 COURSE, HAVE OFFERED THE WHOLE THING, AND WE ARE AWARE, AND OF
21 COURSE WILL ABIDE BY YOUR HONOR‘S RULING ON THAT.
22 WHAT WE'RE PARTICULARLY INTERESTED IN IS TABLE 1 AND
23 THE NOTES WHICH FOLLOW IT. THAT SIMPLY DEFINE THE TERMS AND
24 ABBREVIATIONS USED IN TABLE 1.
23 THE COURT: 1I“M DISPOSED TO ADMIT TABLE 1 WITH NOTES
=
10
1287
WOODWORTH — DIRECT
UNLESS YOU HAVE SOME PARTICULAR OBJECTION.
MS. WESTMORELAND: NOTHING OTHER THAN OUR CONTINUING
OBJECTION. YOUR HONOR.
THE COURT: ALL RIGHT.
MR. BOGER: THANK YOU. YOUR HONOR.
THE COURT: NUMBER 1 WITH NOTES TO GW-4 WILL BE
ADMITTED.
WHY DON’T WE TAKE OUR MORNING RECESS FOR ABOUT FIFTEEN
MINUTES, BECAUSE 1 UNDERSTAND WE-“RE ABOUT TO MOVE TO THESE
CHARTS. |
MR. BOGER: THAT’3 CORRECT. YOUR HONOR.
THE COURT: ALL RIGHT.
(RECESS TAKEN.)
GEORGE GORDON WOODWORTH,
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT D)
BY MR. BOGER:
@. PROFESSOR WOODWORTH. BEFORE WE REACH YOUR FINAL EXHIBIT. LET
ME ASK YOU ONE OR TWO MORE QUESTIONS ABOUT THE R-SGUARE GUESTION
THAT WE HAD RAISED EARLIER.
THE TABLE 1 IN GW-4 TO WHICH WE“VE MADE REFERENCE
THROUGHOUT YOUR TESTIMONY REFLECTS SOME DIAGNOSTICS THAT YOU HAD
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1288
WOODWORTH ~ DIRECT
| RUN.
DID YOU RUN THESE SAME DIAGNOSTIC TESTS ON OTHER POINTS
WITHIN THE SYSTEM?
A. YES. I RAN THESE SAME TESTS AT OTHER DECISION POINTS IN THE
SYSTEM.
THE COURT: R-SQUARE TEST?
THE WITNESS: EVERYTHING YOU SEE HERE IN THIS TABLE.
YOUR HONOR.
THE COURT: INCLUDING R-SQUARE?
THE WITNESS: INCLUDING R-SGUARED.
THE COURT: ALL RIGHT.
BY MR. BOGER:
@. WHAT ACTUAL POINT IN EFFECT WAS REFLECTED IN TABLE 17
A. WELL. THIS IS THE, THIS IS THE RESULTANT OF ALL OF THE
DECISIONS THROUGHOUT THE SYSTEM.
@. IN OTHER WORDS, THIS REFLECTS THE SENTENCING OUTCOME, GIVEN
WHAT, THE INDICTMENT?
A. GIVEN INDICTMENT, YES. GIVEN THE ENTIRE DATA SET.
@. DID YOUR OTHER DIAGNOSTIC TESTS RUN AT DIFFERENT DECISION
POINTS THROUGHOUT THE SYSTEM WITH THESE MODELS PRODUCE SIMILAR
RESULTS?
A. SUBSTANTIALLY THE SAME PATTERN OF RESULTS. YES.
@. DID THE R-SQUARE VARY AT VARIOUS DECISION POINTS?
A. OH, YES. THERE ARE SOME DECISION POINTS WITH HIGHER
R-SQUAREDS. I CAN‘T QUOTE THE FIGURES PRECISELY FOR YOU. BUT
WOODWORTH —- DIRECT
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YES, THERE ARE OTHER DECISION POINTS AT WHICH THE R-SQUARED IS
HIGHER. Nn
R. OKAY.
THE COURT: APPRECIABLY, OR JUST HIGHER?
THE WITNESS: APPRECIABLY IS MY RECOLLECTION, YOUR
(HONOR. THE FROBLEM WITH R-SQUARED IS THAT IT’S A VERY
UNRELIABLE MEASURE WITH ZERO - 1 DATA.
BY MR. BOGER:
@. WHAT DO YOU MEAN BY ZERO - 1 DATA?
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PROBLEM IS THAT. PARTICULARLY WHEN ONE IS DEALING WITH
13 COMPARATIVELY RARE EVENT SUCH AS A DEATH SENTENCE, THAT THE
14 R-SAUARED LEVELS WILL BE ARTIFICIALLY LOW COMPARED TO WHAT THEY
15 WOULD BE IF ONE WERE DEALING WITH A CONTINUOUS OUTCOME VARIABLE,
146 SUCH AS LENGTH OF SENTENCE.
17 THERES AN ADJUSTMENT WHICH IS SOMETIMES MADE WHICH IS
18 CALLED THE BISERIAL CORRELATION. BISERIAL, B-I-S-E-R-I-A-L,
gl 19 CORRELATION. WHICH PRODUCES AN ADJUSTED FIGURE WHICH SHOWS WHAT
20 LEVEL OF CORRELATION IN A CONTINUOUS OUTCOME VARIABLE WOULD
21 PRODUCE THE SAME DEGREE OF PREDICTIVE FOWER.
oa NOW, JUST A ROUGH BACK-OF-THE-ENVELCOFE CALCULATION IN
23 THIS PARTICULAR CASE SUGGESTS THAT THE BISERIAL CORRELATION IN
24 THIS CASE WOULD BE ABOUT TWICE AS BIG AS WHAT WE’RE GETTING
23 HERE.
WOODWORTH — DIRECT
i |@. WHAT WOULD THAT MEAN, FOR EXAMPLE. FOR AN R-SQUARE HERE OF
2 {.397
3 |A. IN PRACTICAL TERMS IT MEANS THAT THIS MODEL DOES AN
4 |EXCELLENT JOB OF PREDICTING THE OUTCOME, OR PREDICTING ABOUT 93
5 |PERCENT OF THE OUTCOMES CORRECTLY WITH THIS MODEL.
& I MISSPOKE EARLIER WHEN I SAID IN THE HIGH 90-3.
7 $0, IN OTHER WORDS, THIS MODEL WILL CORRECTLY CALL 3
& |PERCENT OF THE CASES.
9 THE COURT: THE MID-RANGE MODEL?
10 THE WITNESS: YES. IT WILL.
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y BY MR. BOGER:
12 @. LET US TURN NOW, PROFESSOR WOODWORTH, TO YOUR GW-3.
13 BEFORE I ASK YOU TO IDENTIFY IT. I WOULD LIKE TO ASK
14 WHETHER YOU CONSTRUCTED ANY FIGURES TO DEMONSTRATE THE WAY IN
13 ‘WHICH THE LIKELIHOOD OF A DEATH SENTENCE MIGHT VARY WITH THE
16 PRESENCE OF ALL OTHER VARIABLES?
17 A. THIS ILLUSTRATES A, WHAT TO ME IS A REASONABLY GOOD PICTURE
13 OF THE AVERAGE DEATH SENTENCING RATE IN VARIOUS CLASSES OF
Ww 19 DEFENDANTS, AND IT WAS BY THE WAY, BY THE WLS WITH SECOND ORDER
20 INTERACTIONS MODEL. THE ONE THAT PRODUCED AN R-SQUARED OF .3%.
21 @. WHEN YOU SAY THIS, LET ME HAVE YOU TURN NOW TO GW-3 AND
22 IDENTIFY THAT DOCUMENT?
23 A. YES, EXCUSE ME. THIS DOCUMENT IS ENTITLED "APPENDIX 1,
24 NONLINEAR REGRESSION MODELS," AND IT IS SIMPLY A DESCRIPTION OF
25 THE PARTICULAR REGRESSION REPORTED IN THE LINE OF TABLE 1 THAT I
—— ——— — ——— p—— ——— —
WOODWORTH ~~ DIRECT
1 REFERRED TO.
2 G. I'M GOING TO ASK YOU TO TURN TO FIGURE 2 OF THAT SW-3 AND
EXPLAIN WHAT THIS FIGURE REPRESENTS TO US?
A. FIGURE 2 REPRESENTS THE AVERAGE DEATH SENTENCING RATE.
ACCORDING TO A LEVEL OF AGGRAVATION SCALE.
3
4
S
& NOW THIS LEVEL OF DEATH SCALE WAS PRODUCED BY A
7 WEIGHTED REGRESSION USING THE VARIABLES IN THE MID-RANGE MODEL.
38 QA. WHAT DOES A .& MEAN RELATIVE TO 1.0 ON THAT HORIZONTAL
@ SCALE?
10 A. THE HORIZONTAL SCALE, THE INTERVALS ON THE HORIZONTAL SCALE
11 REFLECT THAT PERCENTAGE INCREASE IN THE AVERAGE DEATH SENTENCING
12 RATES. S0 IN GOING FROM .4 TO .8 THE AVERAGE FOR THE DEATH
13 SENTENCING RATE AS MODELED GOES UP BY TWENTY PERCENTAGE POINTS.
34 @. THAT“S THE DEATH SENTENCING RATE ON THE HORIZONTAL AXIS?
13 A. NO, THAT“S THE LEVEL OF AGGRAVATION, BUT IT“S BEEN SCALED IN
16 SUCH A WAY THAT IF ONE MOVES .1 UNIT ON THE THAT SCALE. THEN ON
37 AVERAGE THE DEATH SENTENCING RATE GOES UP BY .1 UNIT.
18 @. WHAT DDES THE VERTICAL SCALE REPRESENT?
W 19 A. THE VERTICAL SCALE IS THE AVERAGE DEATH SENTENCING RATE.
20 @. ALL RIGHT. AND WHAT DO THESE LINES IN THE MIDDLE REPRESENT?
21 A. THOSE ARE WHAT ARE REFERRED TD AS 95 PERCENT CONFIDENCE
22 BANDS. BANDS, B-A-N-D-5. THE WIDTH OF EACH BAND REPRESENTS PLUS
23 OR MINUS TWO STANDARD DEVIATIONS AROUND WHERE WE THINK THE
24 AVERAGE DEATH SENTENCING RATE WOULD BE, IS, IN THIS, IN THIS
23 DATA SET.
WOODWORTH — DIRECT
SO, FOR INSTANCE, FOR WHITE, BLACK DEFENDANTS. EXCUSE
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ME, WITH WHITE VICTIMS, IF THE LEVEL OF AGGRAVATION IS .4, THEN 8)
3 THE AVERAGE DEATH SENTENCING RATE IS SOMEWHERE BETWEEN ABOUT,
4 LOOKS LIKE .4 AND .é4.
3S @. AND WHAT DOES THE OTHER BAND -- OF OTHER --
& THE COURT: IS THIS FIGURE 2 OR FIGURE 17
7 MR. BOBER: WE-RE LOOKING AT FIGURE 2, YOUR HONOR.
=] THE COURT: ALL RIGHT.
? THE WITNESS: WOULD IT HELP FOR ME TO POINT WITH THESE -+
10 BY MR. BUGER:
11 R. LET MY ASK IF YOU’VE EXAMINED WHAT I HAVE MARKED FOR
12 IDENTIFICATION AS GW-SA AND -B?
13 HAVE YOU EXAMINED THOSE CHARTS?
14 A. YES, THOSE ARE REPLICAS, BLOWUPS, OF THE FIGURES 1 AND 2 IN
13 CW-5.
16 MR. BOGER: YOUR HONOR, COULD THE WITNESS BE PERMITTED
17 To LEAVE THE STAND?
18 THE COURT: SURELY.
12 MR. BOGER: AND USE THE POINTER TO EXPLAIN, FIRST.
20 SW-5A, WHICH IS FIGURE Z.
21 THE WITNESS: THE, THESE BANDS AS I SAID. ARE, WERE 23
22 PERCENT CONFIDENT IN THE SENSE THAT THESE ARE PLUS OR MINUS TWO
23 STANDARD DEVIATIONS AROUND WHERE WE PREDICT THE DEATH
24 SENTENCING RATE 1S FOR DEFENDANTS AT VARIOUS LEVELS OF
25 AGGRAVATION.
WOODWORTH — DIRECT
SO FOR EXAMFLE AT .4 HERE. WE, ACCORDING TO THE
STATISTICAL ANALYSIS, THE AVERAGE DEATH SENTENCING RATES FOR
BLACK DEFENDANTS WITH WHITE VICTIMS IS SOMEWHERE BETWEEN THE .25
AND LOOKS LIKE ABOUT .30.
BY MR. BOGER:
R. WHAT DO THESE TABLES REFLECT WITH RESPECT TO THE DIFFERENCES
IN BLACK DEFENDANT CASES, BASED UPON THE RACE OF THE VICTIM?
A. WELL. THEY ILLUSTRATE SEVERAL THINGS. THE MOST STRIKING
FEATURE OF THIS IS THE GAP IN THE MIDDLE RANGE OF AGGRAVATION
BETWEEN WHITE VICTIM CASES. AND BLACK VICTIM CASES.
THIS IS WHAT IS STATISTICALLY REFERRED TO AS AN
INTERACTION.
IT SAYS THAT THE EFFECT OF LEVEL OF AGGRAVATION IS
DIFFERENT FOR BLACK DEFENDANTS, SORRY, FOR WHITE VICTIM CASES
AND FOR BLACK VICTIM CASES.
@. AND WHAT DO THE DIFFERENCES MEAN IN PRACTICAL TERMS? WHAT
DOES THE LINE REFLECT THERE. THE DIFFERENT LINES?
A. SIMPLY DESCRIBING THE BEHAVIOR OF THE LINE. ONE CAN SAY
THAT THE AVERAGE DEATH SENTENCING RATE FOR BLACK DEFENDANT CASES
REMAINS FAIRLY FLAT.
R. I’M SORRY. YOU SAID BLACK DEFENDANT CASES.
A. BLACK VICTIM CASES REMAINS FAIRLY FLAT UNTIL WE REACH A
CERTAIN THRESHOLD OF AGGRAVATION. AND THEN IT RISES AND CATCHES
UP AS FAR AS WE CAN TELL WITH THE WHITE VICTIM RATES.
WHEREAS THE WHITE VICTIM RATES RISE STEADILY WITH LEVEL
WOODWORTH — DIRECT
1 |OF AGGRAVATION.
2 |@. IF YOU COMPARE SIMILARLY SITUATED CASES. ONE BLACK VICTIM OR
5 | ONE GROUP BLACK VICTIM AND ONE GROUP WHITE VICTIM AT SAY A .4
4 |LEVEL OF AGGRAVATION. DOES THIS FIGURE REFLECT THAT THEY ARE
BEING TREATED DISSIMILARLY OR DIFFERENTLY?
A. THIS FIGURE REFLECTS THE FACT THAT AT THIS LEVEL OF
AGGRAVATION, THAT IS A CERTAIN COMBINATION OF THE VARIABLES IN
THE MODEL, THE. ON AVERAGE THE WHITE VICTIM CASE IS EXPOSED TO
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Ah ADDITIONAL ROUGHLY FIFTEEN PERCENT HIGHER DEATH SENTENCING
10 RATE.
11 @. LET ME ASK YOU TO TURN YOUR ATTENTION TO WHATS BEEN
12 IDENTIFIED AS GW-5B, FOR IDENTIFICATION, FIGURE 1.
13 AND IF YOU CAN EXPLAIN THAT CHART.
14 A. SB 1S QUITE SIMILAR TO SA, BUT REFERS NOW TO WHITE
13 DEFENDANTS, RATHER THAN BLACK DEFENDANTS. WE SEE ESSENTIALLY
16 THE SAME PICTURE, THAT FOR WHITE VICTIM CASES IN THE MIDILE
17 RANGE, THE AVERAGE DEATH SENTENCING RATE IS HIGHER THAN FOR
18 BLACK VICTIM CASES. :
w 19 WE ALSO SEE STRIKINGLY IN THIS DIAGRAM AND ALSO IN THIS
20 ONE. THAT AS IS WELL KNOWN, THE WHITE VICTIM CASES ARE MORE
21 AGGRAVATED, THAT IS TO SAY, THE, THERE EXIST WHITE VICTIM CASES
22 AT HIGHER LEVELS OF AGGRAVATION IN THE SYSTEM, IN BOTH CASES.
23 THE CUTOFF OF THESE CURVES HERE IS THE ACTUAL CUTOFF
24 THAT CQCCURRED IN THE DATA. WE SIMPLY DID NOT FIND ANY
23 BLACK VICTIM CASES AT LEVELS OF AGGRAVATION ABOVE ABOUT .7.
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WOODWORTH — DIRECT
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S @. DOES THAT HAVE ANY SIGNIFICANCE FOR THE TREATMENT OF
SIMILARLY SITUATED BLACK AND WHITE VICTIM CASES?
A. NO, BECAUSE THERE ARE NO SIMILARLY SITUATED WHITE VICTIM,
EXCUSE ME, BLACK VICTIM CASES AT THESE HIGH LEVEL AGGRAVATIUNS.
NO COMPARISON IS POSSIBLE IN THAT. WHAT IT DOES SHOW, THAT AT
INTERMEDIATE LEVELS OF AGGRAVATION, WHERE THERE ARE CASES OF
BOTH TYPES TO BE COMPARED. THAT ON AVERAGE, THE WHITE VICTIM
CASES IN EACH GROUP ARE GETTING DEATH AT A HIGHER RATE.
THE COURT: THOSE CHARTS SEEM TO INDICATE THAT THERES
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A HIGHER DEATH PENALTY RATE POSSIBLE THAN ONE HUNDRED.
11 THE WITNESS: YES. AS YOUR HONOR MAY RECALL I MENTIONED
12 YESTERDAY THAT THAT STATISTICAL MODEL DCESN’T INCORPORATE ALL OF
13 THE CURLS AND WRINKLES IN THE DATA. THE STATISTICAL MODEL. LIKE
14 MODEL AIRPLANES DON’T HAVE STEWARDESSES, AND STATISTICAL MODELS
15 ARE NOT INTENDED TO FOLLOW EVERY LITTLE CURLECUE OF DATA. IN
1&4 POINT OF FACT. THERE ARE JUST NOT VERY MANY CASES DOWN HERE. SO
17 THE MODEL DOESN‘T TRY VERY HARD TO FIT THEM VERY WELL.
1a SIMILARLY, OUT IN THIS RANGE, THERE ARE NOT TOO MANY
po 19 CASES EITHER.
20 NOW, IN PRACTICAL TERMS, THE WAY A STATISTICIAN WOULD
21 INTERFRET THIS IS TO SAY THAT AS FAR AS THE MODEL CAN TELL. AS
22 FAR AS THE STATISTICAL PROCEDURE CAN TELL. THE DEATH SENTENCING
23 RATE STAYS FLAT IN THIS RANGE. THAT WOULD BE THE PRACTICAL
24 INTERPRETATION, IT STAYS FLAT AND THEN RISES STEADILY AND THEN
23 STAYS FLAT AGAIN.
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WOODWORTH - DIRECT
THE POINT IS THAT THE STATISTICAL MODEL PAYS ATTENTION,
TRIES TO FIT THE DATA WHERE IT’S MORE ABUNDANT. AND THE DATA IS
MOST ABUNDANT ABOUT RIGHT IN HERE.
@. DID YOU CONSTRUCT ANY FIGURE THAT OVERLAID THE BLACK
DEFENDANT WHITE VICTIM AND BLACK DEFENDANT BLACK VICTIM CASES
WITH THE WHITE DEFENDANT, WHITE VICTIM, AND THE WHITE DEFENDANT.
BLACK VICTIM CASES?
A. YES. THERE IS A SMALL RACE OF DEFENDANT. THE EFFECT WHICH,
HOWEVER, IS NOT STATISTICALLY SIGNIFICANT.
BUT IT IS. THIS OVERLAY DOES STATE HOW THE, WHAT THE
EFFECT CONSISTS OF. YOU CAN SEE -— I HAVE TO APOLOGIZE FOR THE
FACT THAT THESE TWO GRAPHS. IN ONE OF THESE THE VERTICAL SCALE
IS STRETCHED COMPARED TO THE OTHER, SO THESE SHOW A LITTLE
STEEPER RATE.
BUT AS YOU CAN SEE. THE BLACK DEFENDANT CASES ARE
SYSTEMATICALLY A LITTLE BIT HIGHER IN DEATH SENTENCING RATES
THAN THE WHITE DEFENDANT CASES.
BUT AS YOU CAN SEE THESE TWO-STANDARD DEVIATION BARS
OVERLAP, S0 THE DIFFERENCE IS NOT STATISTICALLY SIGNIFICANT.
THE COURT: IS THE VERTICAL AXIS HIGHER ON CONE OF THOSE
CHARTS THAN THE OTHER?
THE WITNESS: YES. IT”S STRETCHED SQ THAT THESE GO UP
A LITTLE MORE STEEPLY.
YOU CAN GET A MORE ACCURATE PICTURE IF YOU OVERLAY THE
TWO GRAPHS THAT ARE IN. IT’S JUST A MATTER OF, OF SLIGHT
WOODWORTH - DIRECT
1 MISDRAWING. THESE WERE TRACED FROM THE COMPUTER OUTPUT. IF YOU
2 LINE THEM UP, YOU CAN SEE THE GRAPH BEHIND IS A LITTLE BIT
3 HIGHER THAN THE GRAPH IN THE FRONT, INDICATING A SLIGHT
ESTIMATED RACE OF DEFENDANT EFFECT, WHICH, HOWEVER, IS NOT
STATISTICALLY SIGNIFICANT.
BY MR. BOGER:
Q. WHAT GENERAL CONCLUSIONS CAN YOU DRAW ABOUT THE DATA YOUVE
LOOKED AT AS REFLECTED IN THESE FIGURES?
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A. WELL, A NUMBER OF CONCLUSIONS. ONE OF THEM IS THAT THE
10 HIGHER LEVELS OF AGGRAVATION OF WHITE VICTIM CASES ARE SIMPLY
11 NOT RELEVANT TO THE ISSUE.
12 THE ISSUE IS WHETHER BLACK AND WHITE DEFENDANT CASES AT
13 THE SAME LEVELS OF AGGRAVATION SHOW DIFFERENT DEATH SENTENCING
14 RATES.
15 THE FACT THAT THERE ARE SOME WHITE VICTIM CASES OUT
1&6 HERE AT THESE HIGH LEVELS OF AGGRAVATION IS SIMPLY NOT RELEVANT
17 TQ THE ISSUE.
13 THE OTHER POINT IS THAT THIS ILLUSTRATES A POINT I MADE
w 19 EARLIER, THAT THE LINEAR MODEL. THE LEAST SQUARES MODEL. DESPITE
20 THE FACT THAT IT ASSUMES THAT THE RACE OF VICTIM EFFECT IS
21 CONSTANT, NEVERTHELESS GIVES A FAIRLY ACCURATE APPROXIMATION OF
22 WHAT GOES ON WHERE THE DATA IS MOST ABUNDANT.
23 WHAT I MEAN BY THAT, THE LEAST SGUARES REGRESSIONS
24 WOLD PRODUCE CHARTS IN WHICH WE HAD TWO PARALLEL LINES LIKE
23 THAT, YOU SEE TWO PARALLEL LINES, GIVE A FAIR REPRESENTATION OF
WOODWORTH — DIRECT
1 THE DATA.
2 R. YOU’RE TALKING ABOUT THE DATA IN THE MIDDLE PART OF THE
3 SYSTEM, FOR THE RECORD?
4 A. CORRECT. YOU RECALL I TESTIFIED THAT THE REGRESSION
9 CO-EFFICIENT FOR THE RACE OF VICTIM IN LEAST SQUARES REGRESSION
6 IS THE AVERAGE OF THESE DISPARITIES, AVERAGED OVER LEVELS OF
7 AGGRAVATION, AND AS YOU CAN SEE, TO AVERAGE THESE DOES NOT
8 DISTORT THE FICTURE. BECAUSE IN FACT. WE HAVE NO EVIDENCE THAT
9 THE BLACK VICTIM CASES EVER RISE ABOVE THE WHITE VICTIM CASES IN
0 DEATH SENTENCING RATES.
11 SO YOU CAN SEE THESE BARS DO OVERLAP UP IN THIS RANGE.
12 WHICH MEANS THERES NO STATISTICAL EVIDENCE FOR THE BLACK VICTIM
13 CASES EVER BECOMING LARGER THAN WHITE VICTIM CASES IN DEATH
14 SENTENCING RATES.
13 THE COURT: DO YOU KNOW WHERE MCCLESKEY FALLS ON THOSE
16 CHARTS? |
17 THE WITNESS: I COULD EASILY FIND OUT. I DON'T KNOW,
13 THOUGH. MCCLESKEY IS, @ COULDN‘T SAY. ILL GET THAT
Ww 19 INFORMATION FOR YOU.
20 BY MR. BOGER:
21 R. HOW DO THESE FIGURES COINCIDE WITH THE GENERAL PROPERTIES OF
22 THE LOGISTIC REGRESSION ANALYSIS?
23 A. THEY DISPLAY MANY OF THE SAME FEATURES.
24 A LOGISTIC ANALYSIS DRAWN ON THIS SAME GRAPH WOULD LOOK
29 QUITE A BIT LIKE THAT, EXCEPT IT WOULD SHOW THE FPLATEALING OUT
299
WOODWORTH — DIRECT
1 IN HERE. BUT THEY WOULD LOOK VERY MUCH THE SAME.
2 MR. BOGER: ALL RIGHT, YOUR HONOR, I MOVE THE ADMISSION
3 |OF GW-S, GW-SA AND GW-SB INTO THE EVIDENCE.
ANTICIPATING THAT THERE MAY BE SOME PROBLEMS WITH THE
FIRST PAGE, WERE PARTICULARLY INTERESTED IN THE FIGURES
THEMSELVES.
4
5
&
7. THE COURT: MS. WESTMORELAND?
8 MS. WESTMORELAND: I WOULD OBJECT TO THE FIRST PAGE
? YOUR HONOR, ON THE SAME BASIS AS PREVIOUS EXHIBITS.
10 THE OTHER EXHIBITS, I WOULD HAVE THE CONTINUING
31 OBJECTIONS INSOFAR AS THEY ILLUSTRATE, SERVE TO ILLUSTRATE
12 PROFESSOR WOODWCORTH’S TESTIMONY. IN THAT REGARD, I WOULD HAVE
12 NO PARTICULAR ADDITIONAL OBJECTION.
14 THE COURT: ALL RIGHT. THEY WILL BE ADMITTED.
15 MS. WESTMORELAND: YOUR HONOR. MAY I ASK IF ADMITTING
14 |THE FIGURES OR THE ENTIRE GW-57?
17 THE COURT: I HAVE NOT ADMITTED APPENDIX 1, AND DONT,
18 HAVEN‘T HEARD ANY FOUNDATION WHICH WOULD ALLOW IT TO BE
19 |ADMITTED. |
20 MS. WESTMORELAND: THANK YOU,
21 MR. BOGER: YOUR HONOR, I THINK APFENDIX 1 DOES CONTAIN
22 AS PART OF IT THE TWO FIGURES THAT ARE REFLECTED.
23 THE COURT: I MEANT THE TEXTURAL PORTION PAGE 1 OF
24 APPENDIX 1. I“M ADMITTING THE TWO FIGURES AND BLOWUP OF THE TWO
23 FIGURES.
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WOODWORTH — DIRECT
MR. BOGER: THANK YOU. YOUR HONOR.
BY MR. BOGER:
0. PROFESSOR WOODWORTH. BASED UPON YOUR EXPERT OPINION, DO YOU
HAVE CONFIDENCE THAT THE APPROPRIATE STATISTICAL METHODS HAVE
BEEN USED IN THIS STUDY AND THAT THE CONCLUSIONS REACHED ARE NOT
MARRED BY ERRORS OR UNACCEPTABLE STATISTICAL METHODS?
A. YES.
MR. BOGER: I HAVE NO FURTHER QUESTIONS, YOUR HONOR.
THE COURT: IF 1 UNDERSTAND. THE UNDERREPRESENTATION OF
BLACK DEFENDANT BLACK VICTIM CASES IN DEATH PENALTIES OCCURS
FROM ABOUT THE 2.5 LEVEL, ON THE 3.0 LEVEL ON THE REGRESSION,
AGGRAVATION SCALE. TO ABOUT THE .65, TO .7 LEVEL ON THE
AGGRAVATION SCALE.
THE WITNESS: ROUGHLY. YES.
THE COURT: THE AVERAGE. DO YOU KNOW WHAT THE AVERAGE
DIFFERENCE IN THE VALUE IS IN THAT RANGE?
THE WITNESS: NOT IN A RANGE, BUT OVERALL. IT WOULD BE
GIVEN BY THE .074 REGRESSION CO-EFFICIENT FOR WEIGHTED LEAST
SAUARES IN TABLE 1.
sO IT SEEMS TO AVERAGE .0764, AND PEAKS OUT AT ABOUT
FIFTEEN, 1 BELIEVE. 1% MEASURED IT WITH THUMB AND FOREF INGER.
THE COURT: IF I“M INTERPRETING THAT DATA, AND THIS IS
WHAT I ASKED PROFESSOR BALDUS REPEATEDLY. THIS DATA WOULD
SUGGEST THE POSSIBILITY OR PROBABILITY OR WHATEVER OF THE BLACK
DEFENDANT WHITE VICTIM, DEFENDANT GETTING THE DEATH PENALTY AT
1301
WOODWORTH - DIRECT
-
BETWEEN SEVEN AND FIFTEEN PERCENT GREATER THAN IF IT’S BLACK
2 VICTIM, THAN IF HIS VICTIM HAD BEEN BLACK IN THE MID-RANGE?
3 THE WITNESS: THAT-S, THAT’S THE INTERPRETATION OF IT.
4 IT’S AN AGGREGATE STATEMENT, OF COURSE, WHICH DOESN‘T APPLY TO
ow’ ANY SINGLE DEFENDANT. IT APPLIES TO AGGREGATES.
hi & THE COURT: I UNDERSTAND THAT.
7 IN YOUR VIEW, WOULD I BE FACTUALLY CORRECT IN SAYING,
8 IN TRYING TQ QUANTIFY THE EFFECT. THE RACE OF THE VICTIM EFFECT.
4 AS SAYING THAT IT IS IN THE SEVEN TO FIFTEEN PERCENT ORDER OF
10 MAGNITUDE RANGE, INCREASING PROBABILITIES?
11 THE WITNESS: I WOULD SAY THAT THE ACCURATE STATEMENT
12 IS THAT IT AVERAGES IN THIS PARTICULAR MODEL ABOUT SEVEN PERCENT
13 AND IT PEAKS. AND THIS IS A VERY ROUGH EYEBALL, AT ABOUT FIFTEEN
14 PERCENT. YES.
15 THE COURT: WELL, THE OPERATIVE WORD I“M TRYING TO GET
146 YOU TO COMMENT ON, IS PROBABILITY.
17 THE WITNESS: YES, IT IS A PROBABILITY. THAT'S THE
18 DIFFERENCE IN THE PROBABILITY AS ESTIMATED OF RECEIVING DEATH.
w 39 THE COURT: LOOKS TO BE ABOUT THE SAME ON FIGURE 1.
20 THE WITNESS: IT’S THE SAME ON FIGURE 1 AND THE REASON
21 FOR THAT IS THE STATISTICAL PROCEDURE DIDN‘T FIND ANY EVIDENCE
22 THEY WERE DIFFERENT.
23 THE COURT: NO, BUT I MEAN THE ORDER OF MAGNITUDE IS 7
24 TQ 15 PERCENT.
25 THE WITNESS: ITS GOING TO BE EXACTLY THE SAME ON
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WOODWORTH — DIRECT
EITHER ONE. YES.
THE COURT: OH, ONE OTHER QUESTION THAT WAS NOT
ESTABLISHED IS THE DEFINITION OF LEVEL OF AGGRAVATION.
DO YOU KNOW?
THE WITNESS: YES. SIR. ITS, IT WAS COMPUTED BY
RUNNING THE WEIGHTED LEAST SQUARES, USING THE VARIABLES,
INCLUDING THE RACE VARIABLES. AND THEN FORMING A WEIGHTED
COMPOSITE OF THE NON-RACIAL VARIABLES USING THE REGRESSION
CO-EFFICIENTS FROM THAT WEIGHTED LEAST SQUARES AS THE WEIGHTS.
THE COURT: I HAD BEEN LED TO BELIEVE THAT THE
CO-EFFICIENTS WERE BEING EXPRESSED IN PERCENTAGE TERMS.
THE WITNESS: THE LEVEL OF AGGRAVATION YOU MEAN?
THE COURT: NO, GENERALLY THROUGHOUT. THAT THE
| CO-EFFICIENTS WERE PERCENTAGES OF SOMETHING.
THE WITNESS: CO-EFFICIENTS OF ZERO - 1 VARIABLES ARE
DIRECTLY INTERPRETABLE AS PERCENTAGES.
THE LEVEL OF AGGRAVATION IS A COMPOSITE. CONTINUOUS
VARIABLE. IT HAS MANY LEVELS. S0 ITS CO-EFFICIENT IS A SLOPE.
IN OTHER WORDS. IT SAYS FOR ONE UNIT CHANGE IN THE LEVEL OF
AGGRAVATION, HOW MUCH DOES THE DEATH SENTENCING RATE RISE.
NOW, THE REGRESSION CO-EFFICIENT FOR LEVEL OF
AGGRAVATION IS 1, FROM THE WAY I CONSTRUCTED IT. IT HAS A SLOPE
OF 1, IN OTHER WORDS. S0 EVERY TENTH OF A UNIT RISE IN LEVEL OF
AGGRAVATION PRODUCES A TENTH OF A UNIT RISE IN THE AVERAGE DEATH
SENTENCING RATE.
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WOODWORTH - CROSS
1 S0 I FORCED IT TO BE INTERPRETABLE AS PERCENTAGES BY
2 THE WAY I SCALED IT.
THE COURT: ALL RIGHT. THANK YOU, MR. BOGER.
MR. BOGER: THANK YOU. YOUR HONOR.
THE COURT: ALL RIGHT, MS. WESTMORELAND.
3
4
S
a é& CROSS-EXAMINATION
7 BY MS. WESTMORELAND:
3 @. IF I COULD BACKTRACK JUST SLIGHTLY BACK TO SOME OF THE
2 INITIAL WORK YOU MAY HAVE DONE IN REGARD TO THE DATA ITSELF?
10 A. UH HUH.
11 2. WHEN YOU RAN YOUR VALIDITY CHECKS. AND I BELIEVE YOU SAID
12 YOU RAN SEVERAL CONCERNING THE DATA FOR PERHAPS IMPROPER CODING,
13 THINGS THAT WERE CODED THAT REALLY DIDN‘T FIT IN THAT CATEGORY,
14 AND WERE IMPROPER CODES.
1% A. YES.
16 @. AND OTHER TYPES OF VALIDITY CHECKS.
17 A. YES.
13 R. WERE YOU RUNNING CHECKS ON THE DATA AS GIVEN TO YOU?
w 19 A. YES. THEY WERE ALL, THE PURPOSE OF THOSE CHECKS WAS TO
20 COMPARE THE DATA WITH WHAT WAS ON THE QUESTIONNAIRE.
3 ADDITIONALLY: TO DETERMINE IF THERE WERE ANY
22 IMPERMISSIBLE CODES WRITTEN ON THE QUESTIONNAIRES. FOR EXAMPLE,
23 IF WE HAD AN ITEM THAT PERMITTED THE CODES 1, 2, BLANK OR "U",
24 AND IF WE FOUND A "7" IN THAT FIELD, THEN WE WOULD KNOW
23 SOMETHING HAD GONE WRONG SOMEWHERE AND WOULD GO BACK AND SMOKE
|
| 1304
| WOODWORTH — CROSS
OUT THE SOURCE OF THAT WILD CODE AS WE CALL THEM. Pa
@. SO YOUR TESTS REALLY WEREN’T FOR THE VALIDITY OF THE MN
3 UNDERLYING DATA ITSELF, BUT RATHER FOR --
4 A. CONSISTENCY OF KEY PUNCHING, AND CONSISTENCY OF FILLING IN
b= THE BLANKS ON THE QUESTIONNAIRE.
Nid & @. IN REGARD TO THE ENTIRE, BOTH STUDIES AND THE ANALYSES THAT
7 HAVE BEEN DONE, AND IN TESTING THE OVERALL HYPOTHESIS. IS THE
& HYPOTHESIS THAT IS BEING TESTED FOR FOCUSED ON THE PARTICULAR
9 TIME PERIOD IN WHICH THE DATA WAS GATHERED. OR IS IT A
10 PREDICTIVE TYPE OF HYPOTHESIS THAT“S BEING TESTED FOR?
11 THE COURT: IF HE UNDERSTANDS THAT QUESTION HE’S WAY
12 AHEAD OF ME AND HE MAY BE.
13 THE WITNESS: 1 THINK I UNDERSTAND THE QUESTION, YOUR
14 HONOR.
13 WE, FIRST OF ALL, WITH REGARD TO THE INVESTIGATION OF
16 COURSE IS REFERRING TO THE TIME PERIOD OVER WHICH WE GATHERED
37 DATA.
13 BUT SECOND, HOWEVER, WE BELIEVED THE INFERENCES REFER
12 TO THE CHARGING AND SENTENCING SYSTEM THAT PRODUCED THESE DATA.
20 BY M3. WESTMORELAND:
<1 @. SO IT HAS BEEN A TEST BASED OR HYPOTHESIS BASED ON AN
22 INTERPRETATION THAT THIS DATA REFLECTS HOW THE SYSTEM NOT ONLY
23 WORKS DIJRING THIS TIME PERIOD, BUT WILL ALSO WORK IN THE FUTURE?
24 A. NO. WE MAKE NO PREDICTION ABOUT THE FUTURE.
23 @. WHEN YOU DRIGINALLY, IN YOUR CHARGING AND SENTENCING STUDY
J a ————eamsmd Ht er a — ———— terete See, ———. —
| WOODWORTH — CROSS
1 BEGAN WITH THE SAMPLING PROCESS, DO YOU RECALL HOW MANY
2 OFFENDERS YOU BEGAN WITH IN THE UNIVERSE?
3 A. HOW MANY OFFENDERS? OF WHAT TYPE?
4 @. TOTAL. WHAT WAS THE TOTAL UNIVERSE SIZE?
3 A. 1 HAD TO RELY, OF CDURSE. UPON FIGURES PROVIDED BY THE
& DEPARTMENT OF OFFENDER REHABILITATION, PLUS ADDITIONAL CASES
7 DISCOVERED BY PROFESSOR BALDUS THROUGH HIS USE OF LEGAL DATA
a BASES, BUT THE FIGURE I HAVE HERE IS ABOUT TWENTY-FIVE HUNDRED.
? THIS WAS IN MY GW-2.
10 RQ. IF THAT SAMPLE SIZE CHANGED IN SOME WAY, WOULD THAT AFFECT
11 THE ACTUAL CASES SELECTED? NOW IF THE UNIVERSE SIZE CHANGED,
12 EXCUSE ME, WOULD THAT AFFECT THE ACTUAL CASES SELECTED IN YOUR
13 SAMPLING PROCESS?
14 |A. WOULD YOU CLARIFY THE QUESTION, PLEASE?
13 @. I BELIEVE YOU INDICATED YOU DID SOME CODING WHERE YOU, THAT
146 SET UP NUMBERS AND YOU HAD LISTED NUMBERS DOWN BY THE NAMES OF
17 THE OFFENDERS?
13 A. UH HUH.
w 19 R. AND THESE NUMBERS WERE THE DESIGNATIONS FOR THE CODERS AS TO
20 WHICH CASES THEY WERE TO CHOOSE?
21 A, OH, YES.
22 @. IN DOING THAT PROCEDURE, IF THE SIZE OF YOUR UNIVERSE HAD
23 CHANGED, WOULD THOSE NUMBERS ALSO CHANGE. THUS AFFECTING THE
24 PARTICULAR CASES THAT WERE DRAWN?
23 A. TO THE BEST OF MY KNOWLEDGE, THEY WOULDN’T HAVE. BUT ALSO
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WOODWORTH — CROSS
TO THE BEST OF MY KNOWLEDGE, CHANGES IN THE UNIVERSE WERE
MARGINAL.
@. WHEN YOU BEGAN YOUR STRATIFIED SAMPLING IN THE CHARGING AND
SENTENCING STUDY, IF I UNDERSTAND IT CORRECTLY, IT“S STRATIFIED
ON TWO POINTS, ESSENTIALLY. WOULD THAT BE CORRECT?
FIRST OF THOSE BEING THE SENTENCING CUTCOME, AND THE
SECOND BEING THE JUDICIAL CIRCUIT?
A. RIGHT. |
@. SO YOU STRATIFIED ON SENTENCING OUTCOME FIRST, ESSENTIALLY.
IS THAT CORRECT?
A. WELL, NO, THE STRATIFICATION IS SIMULTANEDUS.
@. AND IN DOING THE STRATIFICATION YOU HAD FOUR SENTENCING
OUTCOMES TO LOOK AT?
A. THAT’S CORRECT.
@. WHEN YOU DETERMINED THE WEIGHT TO BE ASSIGNED TO THE CASES
IN YOUR SAMPLE. WHAT WOULD HAVE BEEN THE WEIGHT THAT WAS
ASSIGNED TO A DEATH SENTENCE CASE IN A PARTICULAR JUDICIAL
CIRCUIT?
A. THE WEIGHTS WERE ALL 1 WITH ONE EXCEPTION. IN ONE CIRCUIT
WHERE WE COULDN-T FIND THE RECORDS ON ONE DEATH CASE.
@. AND WHAT WOULD THEN BE THE WEIGHTS FOR THE LIFE SENTENCE
PENALTY TRIAL CASES?
A. THE LIFE SENTENCE PENALTY TRIAL CASES, WE ASSIGNED THEM A
WEIGHT OF 1, ALSO.
@. AND THEN WOULD THE WEIGHTS FOR THE LIFE SENTENCE NO PENALTY
1307
WOODWORTH — CROSS
1 TRIAL CASES VARY FROM CIRCUIT TO CIRCUIT?
2 A. RIGHT.
3 R. IF YOU HAD A LIFE SENTENCE CASE WHICH YOU HAD CLASSIFIED AS
A NO PENALTY TRIAL CASE, BUT IN FACT, IT WAS A PENALTY TRIAL
CASE, WOULD THAT THE AFFECT THE WEIGHTS?
A. YES. ONCE SUCH A CASE WAS DISCOVERED. IT WAS PLACED IN THE
LIFE PENALTY TRIAL CATEGORY, AND THE WEIGHTS WERE RECOMPUTED.
@. SO THE POSSIBLE UNKNOWNS COULD HAVE SOME EFFECT IF IT WERE
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DETERMINED THAT THESE WERE ACTUALLY PENALTY TRIAL CASES, THEY
10 COULD AFFECT THE WEIGHTS THAT WOULD BE UTILIZED THEN?
11 A. THAT’S CORRECT.
12 @. IN MAKING YOUR STRATIFICATION BASED ON JUDICIAL CIRCUIT. DID
13 YOU FIND ANY REASON TO BELIEVE THAT THIS PARTICULAR
14 STRATIFICATION ON JUDICIAL CIRCUITS WOULD IMPROVE THE ESTIMATION
15 PROCESS AS OPPOSED TO JUST A RANDOM SAMPLE?
16 A. THAT WAS NOT THE PURPOSE OF THE STRATIFICATION.
17 @. AND WAS THE PURPOSE MERELY TO OBTAIN A STATEWIDE SAMPLING OF
18 INDIVIDUALS, INDIVIDUAL CASES?
Ww 19 A. WITH RESPECT TO STRATIFICATION ON CIRCUITS, YES.
20 WITH RESPECT TO STRATIFICATION ON CATEGORY OF SENTENCE,
21 THE PURPOSE WAS TQ IMPROVE THE PRECISION OF THE ESTIMATE.
22 R. YOU HAD INDICATED WHEN YOU DISCUSSED THE WEIGHTED LEAST
23 SQUARES REGRESSIONS THAT, AND I DONT RECALL IF YOU INDICATED
24 YOU DID TESTING OR TESTING COULD BE DONE TO DETERMINE IF THESE
23 REGRESSIONS COULD BE MISLEADING.
1308
WOODWORTH - CROSS
1 DID YOU DO SUCH TESTING WITH REGARD TO THE WEIGHTED
ry
LEAST SAUARES REGRESSIONS?
3 A. YES. 1 JUST TESTIFIED TO IT THIS MORNING.
4 @. DID YOU DO THAT WITH ALL THE REGRESSIONS THAT YOU UTILIZED.
ALL THE WEIGHTED LEAST SQUARES REGRESSIONS? (&
& A. NO. 1 TOOK A SPECTRUM OF REGRESSIONS AND WAS SATISFIED FROM
7 THAT SET THAT THE RESULTS WERE RELIABLE IN THE OTHERS.
3 R. IN DETERMINING WHETHER A PARTICULAR INDEX IS RELIABLE AND,
? WELL, I“LL LEAVE IT AT THAT.
0 IN DETERMINING WHETHER A PARTICULAR INDEX IS RELIABLE,
11 WHAT CRITERIA WOULD BE UTILIZED IN MAKING THAT DETERMINATION?
12 |A. CAN YOU CLARIFY WHAT YOU MEAN BY RELIABLE?
13 @. PARDON ME.
14 MS. WESTMORELAND: I“M SORRY YOUR HONOR, I HAVE A SORE
13 THROAT.
16 BY MS. WESTMORELAND:
17 @. IN THE SENSE OF A STATISTICALLY ACCURATE. I SUPPOSE. WOULD
18 BE THE BEST CLARIFICATION THAT I COULD PUT ON THAT TERMINOLOGY.
we %) A. TO ME THE RELIABILITY OF IT IS A QUESTION OF WHETHER IT
20 CORRECTLY RANKS ALL THE CASES IN TERMS OF THEIR LEVEL OF
21 AGGRAVATION. TO SAY IF THIS INDEX, IF ONE CASE IS MORE
2 (AGGRAVATED THAN THE OTHER, DOES THE INDEX SAY SO, IT SEEMS TO ME
23 THE CRITERION, AND WE DID DO SOME INVESTIGATION OF THAT EARLY
24 ON. THIS CONSISTED OF CALCULATING RANK CORRELATION
2 CO-EFFICIENTS BETWEEN INDICES ARRIVED AT BY A DIFFERENT METHOD.
— — ———— S—— — m———— — ——— —— — — —— ————— ————————— — —— ——. | ——
WOODWORTH - CROSS
1 '@. WOULD YOU JUST REFER BRIEFLY TO GW-3. SCHEDULE 27?
¥) P I HAVE IT.
3 @. DO YOU RECALL WHEN THAT PROGRAM WAS RUN, IN TERMS OF THE
4 TIME PERIOD OF THE ANALYSIS?
A. IT WAS PROBABLY RUN SOMETIME LAST WEEK. (R]
®. DO YOU HAVE A REASON TO BELIEVE THAT IT WAS? YOU INDICATED
PROBABLY, THAT WAS THE REASON FOR MY QUESTION.
A. WELL, I WAS DOING THESE RUNS LAST WEEK, SOME OF THEM. 1
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DIDN’T BEGIN THEM LAST WEEK. I WAS DOING SOME MINOR CHANGES.
10 DIFFERENT SETS OF VARIABLES, SO ON, LAST WEEK.
11 THE COURT: LAST WEEK?
12 THE WITNESS: YES, SIR.
13 THE COURT: WHAT COMPUTER DID YOU USE?
14 THE WITNESS: I HAVE A PORTABLE TERMINAL BACK IN MY
15 OFFICE THAT I PLUG INTO THE TELEPHONE AND DIAL BACK TO IOWA.
146 THE COURT: 11 SEE. THAT’S A VARIABLE THAT WE HAVEN'T
17 DISCUSSED THEN. WE MAY HAVE SOME WAR GAMER PLAYING WITH YOUR
18 DATA.
w» 19 THE WITNESS: NO, THEY CAN‘T GET ACCESS TO THE DATA.
20 MS. WESTMORELAND: THAT'S WHAT THEY THOUGHT IN THE
21 MOVIE, TOO.
22 THE WITNESS: PASSWORD PROTECTED.
23 BY MS. WESTMORELAND:
24 Q. DURING THE ANALYSIS STAGES AFTER THE ORIGINAL, AFTER YOU HAD
23 TAKEN THE DATA AND ACTUALLY CREATED THE FILES ON THE COMPUTER,
| WOODWORTH — CROSS
WHERE WAS THE DATA SET MAINTAINED DURING THE ANALYSIS STAGES?
te
A. IM SORRY, I DIDN‘T HEAR THE FIRST PART OF THE QUESTION.
@. AFTER YOU HAD DONE THE MERGING OF THE DATA, CREATING THE
VARIOUS FILES, THE FILES OF THE CHARGING AND SENTENCING STUDY,
AND THE PROCEDURAL REFORM STUDY, WHERE WAS THE ACTUAL DATA SET
MAINTAINED?
A. 1 MAINTAINED IT BRIEFLY AT IOWA. EXCUSE ME. ON MAGNETIC
DISC, AND AFTER I COMPLETED THE FINAL UPDATES THAT PROFESSOR
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BALDUS HAD ASKED ME TO RUN, I COPIED THE DATA SET ONTO A
10 MAGNETIC TAPE. AND MAILED IT TO SYRACUSE. FROM THAT
11 POINT ON IT WAS MAINTAINED AND UPDATED BY MR. BRICH LITTLE. WHO
12 IS PROFESSOR BALDUS” DATA PROCESSOR.
12 R. IF YOU COULD REFER TO GW-4, TABLE 1 IN GW-4. THE You
14 DISCUSSED THE R-SQUAREDS ——
15 A. YES.
16 Qe ics IN SOME DETAIL ON YOUR DIRECT EXAMINATION.
17 AND YOU INDICATED A POSSIBILITY. I BELIEVE. THAT I
18 THINK YOU REFERRED TO IT AS A RANDOM KNUB COULD EXPLAIN. COULD
- 19 BE A FARTIAL OR AN EXPLANATION FOR THE LOW R-SQUAREDS IN SOME OF
20 THESE INSTANCES.
2) A. YES.
22 @. COULD OTHER FACTORS EXPLAIN THE LOW R-SQUAREDS AS WELL. SUCH
23 AS, LET ME PROVIDE AN EXAMPLE WITH THE QUESTION.
24 COULD SOMETHING SUCH AS MISSING. A MISSING EXPLANATORY
25 |VARIABLE EXPLAIN A LOWER R-SQUARED?
1311
WOODWORTH — CROSS
1 ‘A. CONCEIVABLY.
ba P WOULD INCORRECT DATA ALSO ACCOUNT FOR A LOW R-SQUARED?
3 A. INCORRECT DATA WOULD HAVE AN UNPREDICTABLE EFFECT ON
i R-SRUARED.
'R. NO PREDICTABLE EFFECT? a
5 A. NO. :
7 @. THEN REFERRING TO. I BELIEVE, GW-SA AND -5B, FIGURES 1 AND
8 2.
? IN MAKING YOUR ANALYSIS OF THESE TWO FIGURES. AND THE
10 CONCLUSIONS THAT YOU HAVE MADE, IS IT AN UNDERLYING PRESUMPTION
: 9 OF YOUR ANALYSIS THAT THE CASES YOU ARE COMPARING ARE SIMILARLY
12 SITUATED?
13 A. IS IT AN UNDERLYING ASSUMPTION OF THE ANALYSIS.
14 . |A. YES?
135 A. NO PRESUMPTION IS MADE. THEY ARE SIMILARLY SITUATED AS
146 DEFINED BY OUR LEVEL OF AGGRAVATION.
17 @. IN ORDER TO MAKE THIS COMPARISON. YOU WOULD HAVE TO
18 DETERMINE THAT THE CASES, BY YOUR ANALYSIS, ARE SIMILARLY
W 4 SITUATED BEFORE ANY OF THIS REALLY COULD BE DONE OR COULD BE
20 RELEVANT? WOULD THAT BE A SAFE STATEMENT?
21 A. NO. THEY COULD BE DISSIMILAR IN TERMS OF COLOR OF THEIR
22 HAIR, FOR EXAMPLE, AND IT WOULDN’T BE RELEVANT TO THE ANALYSIS.
23 THEY COULD BE DISSIMILAR IN TERMS OF LEGALLY
24 IMPERMISSIBLE CHARACTERSTICS, AND AGAIN IT WOULDN‘T BE RELEVANT
23 TO THE ANALYSIS.
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1312
WOODWORTH —- CROSS
THE COURT: HOW ABOUT IF YOU HAD F. LEE BAILEY VERSUS
JOE COLLEGE?
THE WITNESS: WELL, I WOULD SUSPECT, WELL, I“M NOT A
LAWYER, BUT ==
THE COURT: WHAT I“M GETTING AT IS AREN’T YOU ASSUMING
EACH ONE OF THESE FOLK HAD THE SAME QUALILTY OF DEFENSE COUNSEL
AND THE PROSECUTOR HAD THE SAME ABILITY, FOR EXAMPLE?
THE WITNESS: EXCUSE ME. I DON'T KNOW THAT WE'RE
PRESUMING THAT. WE SIMPLY HAVEN’T USED THAT AS A VARIABLE IN
MATCHING.
I WOULD SUSPECT DOWN DEEP THAT WE DON’T PRESUME THAT.
THAT THAT’S ONE OF THE MECHANISMS BY WHICH A RACE OF DEFENDANT
EFFECT MIGHT WELL MANIFEST ITSELF.
THE COURT: ONLY IF YOU HAD POOR DEFENDANTS?
THE WITNESS: CORRECT.
THE COURT: SO IT WOULDM“T BE RACE, IT WOULD BE
| POVERTY.
THE WITNESS: POVERTY. WE HAVE DONE SOME RUNS THAT DO
ADJUST FOR A PROXY FOR POVERTY. WHICH STILL FAILED TO ACCOUNT
FOR THE EFFECT.
THE COURT: GETTING INTO WHAT SHE WAS ASKING, IF I
UNDERSTAND THE QUESTION, IT IS, FOR THE PURPOSES OF WHAT YOU-VE
DONE IN FIGURE 1 AND FIGURE 2, YOU NECESSARILY HAVE ASSUMED THAT
THE VARIABLES YOU HAVEN‘T CONTROLLED FOR ARE ALL THE SAME IN ALL
THE CASES.
— ——— tn rete iat a——— Si——— i —— —— ey Fea Ee HT — | S—— ST — ———S——— YY — S——— T——— Ne —— =
1313
WOODWORTH - CROSS
1 THE WITNESS: I WOULDN“T PUT IT QUITE THAT WAY. I
2 WOULD SAY THAT EITHER THEYRE ALL THE SAME. OR THEY RE LEGALLY
3 IMPERMISSIBLE.
MS. WESTMORELAND: CAN I HAVE JUST A MOMENT, YOUR
HONOR? .
BY MS. WESTMORELAND:
@. IN CONSTRUCTING THE TWO FIGURES THAT WE HAVE. OW-35A AND -5B.
WERE THESE BASED ON THE CONSTRUCTION OF AN INDEX?
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A. YES.
10 @R. DO YOU HAPPEN TO KNOW OR DID YOU MAKE A DETERMINATION OF THE
11 R-SQUARED FOR THAT INDEX?
32 A. YES. ITS INDICATED IN THE, TABLE 1, .35.
13 MS. WESTMORELAND: THOSE ARE ALL THE QUESTIONS I HAVE,
14 YOUR HONOR.
13 THE COURT: ANY REDIRECT?
146 MR. BOGER: NO QUESTIONS, YOUR HONOR.
17 | THE COURT: THANK YOU. YOU MAY GO DOWN.
13 (WITNESS EXCUSED)
w 19 MR. STROUP: YOUR HONOR, AT THIS TIME. THE PETITIONER
20 WOULD CALL BETTY MYERS. SHE“S A VERY BRIEF WITNESS.
21 THE COURT: 1S SHE RELATED TO YOUR LAW PARTNER?
22 MR. STROUP: NO, SHE IS NOT, YOUR HONOR.
23 THE COURT: GO AHEAD.
24 MS. WESTMORELAND: YOUR HONOR, COULD I ASK ONE
25 QUESTION?
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1314
WOODWORTH ~ CROSS
I UNDERSTAND THAT THE PERSON SUBPOENAED FROM THE
DEPARTMENT OF PARDONS AND PAROLES IS ALSO GOING TO BE CALLED.
HE IS ON A TEN, FIFTEEN MINUTE CALL BASIS. IT WOULD TAKE A
PHONE CALL TO HIS OFFICE AND GET HIM UP HERE. I DIDN‘T KNOW IF
IT WAS ANTICIPATED WE WOULD GET TO HIM BEFORE LUNCH OR —-
MR. STROUP: I WOULD ANTICIPATE MRS. MYERS” TESTIMONY
TO NOT EXCEED FIVE MINUTES, YOUR HONOR.
MS. WESTMORELAND: THE QUESTION THEN -——
THE COURT: DO YOU HAVE ANOTHER WITNESS AVAILABLE FOR
us?
MR. STROUP: NO, THE REMAINING WITNESS IS THE
BOARD OF PARDONS AND PAROLES WITNESS, YOUR HONOR.
THE COURT: WHAT IS THAT WITNESS GOING TO ADD TQ THIS | MR. STROUP: WE ANTICIPATE HE WILL JUST CLARIFY SOME
i
(QUESTIONS REGARDING HOW THE BOARD OF PARDONS AND PAROLES
DEVELOPS THE REPORT THAT DOCTOR BALDUS RELIED UPON FOR THE
QUESTIONNAIRES. THE INFORMATION THAT THE BOARD OF PARDONS AND
PAROLES SEEKS OUT, THEIR SOURCES OF INFORMATION, THE DETAIL WITH
WHICH THEY SEEK TO OBTAIN INFORMATION.
| THE COURT: ALL RIGHT. WELL, GO AHEAD AND CALL MRS.
MYERS. AND THEN WE’LL SEE WHERE WE ARE.
THE REASON. LET ME TELL YOU WHAT”S GOING ON, SO YOU ALL
|cAN STRUCTURE YOUR LIFE ACCORDINGLY.
IVE GOT TO RECESS AT 12:30 FOR PURELY PERSONAL
———— —————— —— ——— b—— —— — ————————. —— —————————
MYERS - DIRECT
1 REASONS. AND S0. I DONT MIND RECESSING A LITTLE EARLIER AND
HAVING A LONGER LUNCH BREAK. BUT I DON’T WANT TO RECESS AND [3]
3 THEN COME BACK ON THE BENCH BEFORE LUNCH, IF THAT MAKES ANY
4 DIFFERENCE ON WHETHER YOU CALL THIS PERSON OR NOT.
SO WHAT IM GETTING AT IS, I GUESS WE OUGHT TO FINISH (4
RA & UP WITH MRS. MYERS AND THEN HAVE A LONG LUNCH OR SOMETHNG.
7 MS. WESTMORELAND: THAT WILL BE FINE AND ILL CALL AND
MAKE SURE HES HERE AFTER LUNCH. {0
2 THE CLERK: IF YOU WILL RAISE YOUR RIGHT HAND, MA“AM.
10 DO YOU SOLEMNLY SWEAR THE EVIDENCE YOU SHALL GIVE IN THE
13 TRIAL NOW BEFORE THIS COURT SHALL BE THE TRUTH. THE WHOLE TRUTH.
12 AND NOTHING BUT THE TRUTH. SQ HELP YOU GOD?
13 THE WITNESS: 1 DO.
14 THE CLERK: HAVE A SEAT ON THE WITNESS STAND, MA“ AM,
15 AND STATE YOUR FULL NAME FOR THE RECORD.
16 THE WITNESS: MY NAME IS BETTY JEAN MYERS.
37 —-
18 BETTY JEAN MYERS,
Ww 19 CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, BEING FIRST
20 DULY SWORN. TESTIFIED AS FOLLOWS:
21 DIRECT EXAMINATION
22 BY MR. STROUP:
23 @. MRS. MYERS. WOULD YOUU STATE WHAT YOUR RELATIONSHIP IS TO THE
24 PETITIONER IN THIS CASE, WARREN MCCLESKEY?
235 A. IM HIS SISTER.
1316
MYERS - DIRECT
'@. DID YOU HAVE OCCASION IN OCTOBER OF 1973 TQ ATTEND YOUR
BROTHER’S TRIAL IN THE SUPERIOR COURT OF FULTON COUNTY?
A. YES.
@. OF THE FOUR DAYS OF TRIAL, DO YOU RECALL HOW MANY DAYS YOU
ATTENDED?
A. THREE.
@. DID YOU HAVE OCCASION WHILE ATTENDING HIS TRIAL TO OBSERVE
THE JURORS WHO HEARD THE FACTS IN YOUR BROTHER’S CASE?
A. YES.
@. DO YOU RECALL HOW MANY WHITE AND HOW MANY BLACK JURORS HEARD
YOUR BROTHER’S CASE?
A. I KNOW THAT IT WAS ONLY ONE BLACK AND THE REST OF THEM WAS
WHITE.
@. DO YOU ALSO RECALL THAT ON THE FIRST DAY OF THE TRIAL. ONE
OF THE WHITE JURORS WAS EXCUSED AND THE FIRST ALTERNATE WAS
CALLED TO TAKE HER PLACE?
A. YES.
@. ALL RIGHT. DO YOU RECALL THE RACE OF THE FIRST ALTERNATE?
A. WHITE.
Q. ALL RIGHT.
MR. STROUP: THAT’S ALL I HAVE. YOUR HONOR.
MS. WESTMORELAND: I HAVE NO QUESTION. YOUR HONCR.
THE COURT: THANK YOU, MRS.MYERS.
ARE WE GOING TO BE HEARING AGAIN FROM MRS. MYERS?
MR. STROUP: NO, YOUR HONOR.
1317
MYERS ~ DIRECT
1 THE COURT: IN THE OTHER PART OF THE CASE?
2 MR. STROUP: NO.
3 THE COURT: YOURE EXCUSED.
4 (WITNESS EXCUSED)
2 THE COURT: IF I UNDERSTAND YOU CORRECTLY. THATS ALL
& THE EVIDENCE YOURE, PREPARED TO PRESENT AT THIS TIME? :
7 MR. STROUP: YES, YOUR HONOR. WE WILL BE CALLING THE
8S GENTLEMAN FROM THE PARDONS AND PAROLES --
? THE COURT: I“M TALKING ABOUT RIGHT AT THIS MINUTE.
10 MR. STROUP: THATS CORRECT.
11 THE COURT: ALL RIGHT, WE‘LL RECESS UNTIL QUARTER OF
12 TWO. AND WE’LL HAVE THAT PERSON HERE. AND THEN YOULL REST AS 1
13 UNDERSTAND IT.
14 AND YOU WILL BE READY TO GO FORWARD WITH ENOUGH
13 TESTIMONY TQ FILL UP THE DAY?
16 MS. WESTMORELAND: YES, YOUR HONCR.
17 MR. STROUP: I THINK. YOUR HONOR, THERE MAY BE SOME
13 ADDITIONAL DOCUMENTARY EVIDENCE TO BE OFFERED AT THAT TIME. BUT
w 19 THE ONLY OTHER WITNESS WE INTEND --
20 THE COURT: CAN WE CROSS THAT BRIDGE RIGHT NOW?
21 MR. BOGER: BE GLAD TO, YOUR HONOR.
22 WE WOULD LIKE TO SUBMIT UNDER RULE 7 OF THE HABEAS
23 CORPUS RULE THE ORIGINAL OF THE DEPOSITION OF LEWIS SLATON WHICH
24 YOUR HONOR PERMITTED US TO TAKE. © WE DON’T WANT TO CALL MR.
25 SLATON AGAIN AND BURDEN HIM. AND STATE WAS PRESENT AND
1318
1 | CROSS-EXAMINED HIM. I THINK THESE DOCUMENTS. THIS DOCUMENT IS
2 RELEVANT AND WOULD ADMIT IT -- OFFER IT FOR ADMITTANCE.
MS. WESTMORELAND: I HAVE NO OBJECTION.
THE COURT: IT WILL BE ADMITTED.
MR. BOGER: WHY DONT WE CALL THAT LETTER LS-1 FOR
3
4
3
a 1) IDENTIFICATION.
7 THE COURT: ALL RIGHT. |
3 MR. BOGER: WE ALSO YOUR HONOR, HAVE DOCUMENTS HERE
S THAT HAVE BEEN PROVIDED TO THE STATE. AS YOU MAY RECALL WE
10 ORIGINALLY INTENDED TO PUT ON FIVE WITNESSES. ONE OF THE
11 WITNESSES WE MENTIONED IN OPENING ARGUMENT WAS ROBERT MORROW,
12 WHO IS FROM THE WEST COAST. FROM STANFORD.
13 MR. MORROW AND FROFESSOR SAMUEL GROSS OF STANFORD LAW
14 SCHOOL HAD PRODUCED A REPORT OF THEIR OWN STUDIES OF THE GEORGIA
13 SYSTEM: IT’S BEEN PROVIDED TO THE STATE. IT’S A REPORT THATS
16 SOMEWHAT DIFFERENT IN APPROACH THAN PROFESSOR BALDUS” AND
17 WOODWORTH”S. IT BEARS SOME SIMILARITIES TO THE KIND OF APPROACH
13 THAT BOWERS AND PIERCE HAD UNDERTAKEN. HOWEVER. IT CORRECTS A
w 19 SIGNIFICANT NUMBER OF THE DEFICIENCIES THAT HAD BEEN PREVIOUSLY
20 IDENTIFIED IN BOWERS AND PIERCE“S REPORT. LARGER SAMPLES.
21 THERE“S SEVERAL SCORES, MULTISCORES, NOT JUST ONE SCORE GIVEN,
22 LONGER TIME SPAN THAT INCLUDES ALL THE DEATH SENTENCES. BUT IT
23 DOES DRAW FROM THAT BODY OF SUPPLEMENTING HOMICIDE REPORTS AS
24 THE UNIVERSE FROM THE WHICH THE DEATH SENTENCING CASES ARE
23 COMPARED.
131%
WHAT WE HAVE IN LIEU OF MR. MORROW‘S LIVE TESTIMONY,
2 WHICH IN VIEW OF THE WAY THE HEARING HAS PROCEEDED AND THE
LENGTH OF IT THUS FAR IS AN AFFIDAVIT FROM MORROW SAYING YES.
THIS IS MY REPORT AND I“VE LOOKED AT IT AND ITS ACCURATE.
1 SUBMIT IT TO THE COURT ON THAT BASIS. IT INCLUDES
HIS VITAE. WE“RE AWARE, OF COURSE. THAT THE COURT HAS BEEN
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ILL-DISPOSED TO ADMIT DOCUMENTARY EVIDENCE OF THIS SORT, BUT
WE WOULD PROFFER IT UNDER RULE 7 OF THE FEDERAL HABEAS RULES. AS A
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DOCUMENT THAT-S RELEVANT TO THESE PROCEEDINGS AND IN VIEW OF THE
10 WAY WE ARE PROCEEDING IN THIS TWO-WEEK HEARING AS AN ACCEPTABLE
11 SUBSTITUTE FOR HIS LIVE TESTIMONY.
12 MS. WESTMORELAND: YOUR HONOR. THE AFFIDAVIT IS NOT MY
13 CONCERN IN ITSELF. 1 DO HAVE A PROBLEM WITH THE REPORT ITSELF
14 IN THE SAME LIGHT AS THE OTHER REPORTS THAT HAVE BEEN SUBMITTED.
13 I ALSO NOTE THERE WAS A COLLABORATOR ON THE REPORT.
14 PROFESSOR GROSS. AND I UNDERSTAND THAT CERTAIN CONTRIBUTIONS
17 WERE MADE BY HIM. S0 MR. MORROW CANNOT ATTEST TO THE
13 SUFFICIENCY OR THE ACCURACY OF THOSE FINDINGS.
19 ON THAT BASIS AND THE BASIS OF THE REPORT —-— WOULD BE
20 HEARSAY. 1 OBJECT TO ITS INTRODUCTION AT THIS TIME.
21 THE COURT: I SUSTAIN THE OBJECTION.
i MR. BOGER: MAY WE MAKE IT PART OF THAT PACKAGE
2 FROFFER, WITH THE REPORT OF PROFESSOR BALDUS, SIMPLY SO THAT IF
24 ITS DEEMED THAT AT SOME POINT APPROPRIATE THAT IT SHOULD HAVE
23 BEEN CONSIDERED, IT’S THERE. I MEAN, SEALED?
po
t THE COURT: NO.
MR. BOGER: NO. ALL RIGHT. YOUR HONOR.
THE COURT: THE ONLY REASON THAT I KNOW OF FOR LETTING
YOU PROFFER SOMETHING IS IN THE EVENT THAT I HAVE MADE AN
ERRONEOUS EVIDENTIARY RULING, AND THERE-“S NO QUESTION IN MY MIND
ABOUT THAT. °
FURTHER, MR. BOGER, I AM CONCERNED THAT THIS CASE BE
DECIDED ON CAREFULLY EXAMINED EVIDENCE, AND NOT ON AN INVITATION
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FOR ALL THE LITERATURE IN THE FIELD THAT IS NOT BEING TESTED IN
TA
Y < THE ADVERSARIAL SYSTEM AND YOU CAN‘T TEST THAT WHICH YOU CAN’T
11 CROSS~-EXAMINE, THAT WHICH SHE HAS NOT HAD A CHANCE IN DETAIL TO
12 CONDUCT DISCOVERY WITH, AND WITHOUT EVEN KNOWING WHAT THE REPORT
13 SAYS, AS A LAWYER WOULD LOOK AT THE DATA, I THINK IT WOULD BE
14 OUTRAGEOUS TO CONSIDER THAT SORT OF THING.
13 I REALIZE THE SUPREME COURT HAS DONE IT. I“M TALKING
14 ‘AS A TRIAL JUDGE. IF THEY WANT TO READ LAW REVIEW ARTICLES TO
17 FIND FACTS. THATS THEIR BUSINESS. I DON’T DO THAT SORT OF
18 THING.
WW 19 MR. BOGER: LET ME JUST MAKE CLEAR FOR THE RECORD THAT
20 |I CERTAINLY WILL, OF COURSE, ABIDE BY YOUR HONOR‘S RULING, THAT
21 MR. MORROW’S NAME WAS GIVEN TO THE STATE IN JANUARY THIS YEAR AS
22 ONE OF THE WITNESSES WE EXPECTED TO CALL.
23 THAT HIS REPORT WAS GIVEN TO THEM WITHOUT THEIR REQUEST
24 BY US DURING THE DISCOVERY PERIOD. IT’S NOT THE QUESTION OF A 25 DOCUMENT THAT COMES AS A SURPRISE, OR A WITNESS THAT COMES AS A
'SURFRISE TO THEM. pt
Mr
THE COURT: IF YOU WANT TO CALL HIM. I“LL BE GLAD TO
3 LET YOU PRESENT HIM.
4 MR. BOGER: ONE MOMENT, YOUR HONOR, IF I MIGHT CONFER.
.. YOUR HONOR, MIGHT WE MAKE THAT DECISION, AND INFORM
& YOUR HONOR RIGHT AFTER LUNCH ABOUT THAT?
7 THE COURT: IF HES HERE, I‘LL BE GLAD TO HEAR FROM
8 HIM. |
wv MR. BOGER: THANK YOU.
10 THE COURT REPORTER ASKED ME ABOUT A NUMBER FOR THIS.
11 IN VIEW OF YOUR HONOR‘S RULING. I SUSPECT A NUMBER IS NOT
12 AFPFROPRIATE OR DO YOU NEED ONE?
13 THE CLERK: YES.
14 MR. BOGER: IT WAS OFFERED AS RM—-1 FOR IDENTIFICATION.
15 IT IS MY UNDERSTANDING WERE NOW WAITING FOR THE PAROLE
16 BOARD WITNESS TO COME.
17 THE COURT: IN OTHER RESPECTS YOU ARE THROUGH?
13 MR. BOGER: THAT’S CORRECT, YOUR HONOR.
- i? YOUR HONOR KNOWS AT THE COURT’S SUGGESTION WE“VE TAKEN
20 PROFESSOR BERK, WHO WE ANTICIPATED TO BE A SUBSTANTIVE WITNESS,
21 AND WE“RE GOING TO HOLD HIM TILL AFTER THE STATE’S PRESENTED
22 THEIR CASE.
23 WITH THAT EXCEPTION. I CAN SAY WE ARE THROUGH.
< THE COURT: ALL RIGHT. LET ME MENTION ON THAT. MAKE
25 THE RECORD CLEAR ON IT, THE COURTS VIEW IN MANAGING THE
|
1 WITNESSES AND ORDER OF TESTIMONY IS THAT IT WOULD BE A BURDEN
2 UPON THE RECORD TO ALLOW REPETITIVE TESTIMONY CONCERNING MATTERS
| WHICH ARE NOT SUBSTANTIALLY CHALLENGED BY THE STATE AND TO THAT
EXTENT. I DIRECTED YOU TO USE HIM AS A REBUTTAL WITNESS TO
BOLSTER OR WHATEVER ELSE YOU WANT TO CALL IT. YOUR CASE AS THAT
SO THAT’S THE DIRECTION I HAVE GIVEN MR. BOGER AND
3
4
S
& CASE IS CHALLENGED BY THE STATE.
7
8 THAT’S THE REASON FOR CALLING THE WITNESS AT THAT TIME.
? AS THIS CASE GOES, THAT’S THE END OF THAT SUBJECT. AS
10 THIS CASE GOES ALONG, I HAVE BEEN TRYING TO THINK OF WHAT LEGAL
13 MODEL TO USE TO ANALYZE WHAT I“VE HEARD, ASSUMING THAT I
12 CREDITED EVERYTHING THAT YOU HAVE PUT INTO THE RECORD.
13 AND I THINK THE MOST GENEROUS DESCRIPTION OF YOUR.
14 LET”S CALL IT INSTITUTIONAL ASSAULT, I.E.» INFERENCES THAT YOU
135 WOULD DRAW FROM THE APPLICATION OF THE DEATH PENALTY IN GEORGIA
146 TO MCCLESKEY WITHOUT LOOKING AT FULTON COUNTY OR MCCLESKEY’S CASE
37 PARTICULARLY, OR SORT OF THING, WOULD BE THAT THIS IS NOT A
13 SITUATION WHERE EVERY CHINESE LAUNDRY IS CLOSED DOWN OR
ww 19 WHATEVER AND EVERY WHITE LAUNDRY STAYS OPEN. SO IT GETS TO BE A
20 MATTER OF AGREE. AND FROM THE LAST WITNESS’ TESTIMONY I
21 UNDERSTAND THAT DEGREE TO BE SOMETHING WELL LESS THAN HALF OF
22 ALL THE CAUSES. AND FROM DOCTOR BALDUS”S AND FROM THE LAST
23 WITNESS” TESTIMONY. I UNDERSTAND YOU CANNOT FREDICT IN ANY GIVEN
24 CASE WHETHER IT WAS OPERATIVE. WHETHER IT WAS OPERATIVE AT ALL
25 OR WHETHER IT WAS MORE COMPELLING THAN ANYTHING ELSE IN THE CASE
ry ee. eet. ‘eet. pee etree ee. —— | —
1 NR WHATEVER, S0 THERE ARE THOSE PROBLEMS.
2 IT DOES. NEVERTHELESS. RAISE SOME INFERENCE. AND THE
3 DEGREE OF THAT INFERENCE IS SOMETHING THAT WE‘VE GOT TO DEAL
4 WITH.
I AM CURIOUS AND WOULD LOVE TO HAVE YOUR THOUGHTS AT a
Ra & SOME POINT AS WE GO ALONG ABOUT WHAT LEGAL BALL PARK WE'RE
7 PLAYING IN, WHETHER WE‘RE PLAYING IN A MCDONALD-DOUGLAS SORT OF
3 A BALL PARK DOR WHETHER WE“RE PLAYING IN A MOUNT HEALTHY BALL
? PARK OR WHETHER WE’RE PLAYING IN A NO-NEVER-NOT-ONE BALL PARK,
10 WHICH I“M TRYING TO THINK OF A GOOD, I GUESS THE, THE VOTER
11 CASES, THE JURY SELECTION CASES: WHERE YDU HAVE THE COURT NOT
12 TOLERATING MUCH DISPARITY, WOULD BE THE CLOSEST THAT I COULD
13 THINK OF OFF THE TOP OF MY HEAD TO THE NO-NEVER-NOT-ONE SORT OF
14 NOTION.
15 I WOULD LOVE TO HAVE YOUR VIEWS ON WHICH WAY THE
16 PETITIONER THINKS IT WORKS AND WHICH WAY THE RESPONDENT THINKS
17 IT OUGHT TO WORK.
13 IF YOU GO MCDONALD-DOUGLAS. THAT MEANS YOU PUT ON
w 19 STATISTICAL EVIDENCE WHICH MAKES A PRIMA FACIE CASE; SHE OFFERS
20 NON-DISCRIMINATORY REASONS, AND THEN YOUVE GOT TO PROVE THOSE
<1 ARE PRETEXTURAL., IF I REMEMBER IT.
22 IN MOUNT HEALTHY, IF THERE ARE A NUMBER OF FACTORS AT
23 WORK, AND ONE OF THEM IS IMPERMISSIBLE. THEN IF SHE PROVES IT
z24 COULD HAVE HAPPENED OR WOULD HAVE HAPPENED EVEN IN THE ABSENCE
23 OF THE IMPERMISSIBLE CRITERIA. THEN NO FROBLEM.
pe ns retat—— ———— ret ——. rr
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13
AND THEN WE KNOW ABOUT THE VOTER CASES AND THE JURY
SELECTION CASES AND BASICALLY THERE IS SOME BAND OF
DISCRIMINATION THAT’S BEEN ALLOWED IN THOSE CASES. I WOULD KIND
OF LIKE TO KNOW WHERE YOU“RE GOING IN THOSE VIEWS. MAYBE IT°S
NONE OF THOSE AT ALL.
MR. BOGER: ID BE HAPPY TO REFLECT ON THAT. AND EITHER
SUBMIT SOMETHING ORALLY OR IN WRITING TO THE COURT DURING THIS
WEEK.
THE COURT: I WON‘T HOLD YOU TO IT, BECAUSE I‘M
OBVIOUSLY GOING TO LET YOU HAVE A CHANCE TO BRIEF IT. BUT ANY
INSIGHTS AS TO WHERE YOU ALL, NOT JUST YOU, BUT YOU AND MS.
WESTMORELAND, THINK YOURE GOING IN TERMS OF WHICH ANALYSIS TO
APPLY, WOULD, WHERE YOU ARE AT THE MOMENT WOULD BE HELPFUL TO
ME.
MR. BOGER: I SUSPECT WE'RE GOING TQ SAY IN A SENSE
IT’S SUA GENERIS SITUATION BUT TO DRAW ON SOME OF THOSE
ANALOGIES TO WHICH THE COURT HAS POINTED. BUT WELL GET BACK TO
YOU ON THAT.
THE COURT: ALL RIGHT. WE-“LL BE IN RECESS UNTIL
FIFTEEN MINUTES OF TWO.
MS. WESTMORELAND: YOUR HONOR, BEFORE THE RECESS, COULD
I ASK ONE FURTHER QUESTION?
IS MY UNDERSTANDING CORRECT WE-RE STILL GOING TO BE
ADJOURNING FOR TOMORROW AFTERNON, AND NOT HAVING COURT TOMORROW
AFTERNOON?
1323
WARR = DIRECT
1 THE COURT: THAT’S CORRECT. WE-LL PROBABLY RUN UNTIL
2 ABOUT 12:00 OR 12:15, SOMETHING LIKE THAT.
3 MS. WESTMORELAND: MY CONCERN IS ——
4 THE COURT: WAIT JUST A SECOND. THE REASON I TOOK THE
S RECESS EARLY YESTERDAY AFTERNOON, MR. PUGH’ S BROTHER-IN-LAW DIED
& UNEXPECTEDLY, AND HE-S GOT TO GO TO A FUNERAL. AND IVE GOT TO
7 PRETRY A CASE.
3 WE“LL PROBABLY RUN INTO THE 12:30 RANGE AND WE WON'T
> RECONVENE AFTER LUNCH TOMORROW. SO I CAN PRETRY THIS
10 CONSTRUCTION CASE FOR SEPTEMBER. IF THIS CASE I3 OVER BY
11 SEPTEMBER.
12 ALL RIGHT. WE-LL BE IN RECESS UNTIL QUARTER OF TWO.
13 ge —
14 (RECESS TAKEN.)
15 MR. STROUP: PETITIONER CALLS L. G. WARR.
14 THE CLERK: IF YOU WILL RAISE YOUR RIGHT HAND, SIR.
17 DO YOU SOLEMNLY SWEAR THE EVIDENCE YOU SHALL GIVE IN THE
18 TRIAL NOW BEFORE THIS COURT SHALL BE THE TRUTH, THE WHOLE TRUTH,
Ww 12 AND NOTHING BUT THE TRUTH. S0 HELP YOU GOD?
20 THE WITNESS: 1 DO.
21 THE CLERK: HAVE A SEAT ON THE WITNESS STAND, SIR,
22 AND STATE YOUR FULL NAME FOR THE RECORD.
23 THE WITNESS: MY NAME IS L. G. WARR.
24 dy
25 Le Ge. WARR.
WARR = DIRECT
1 CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, BEING FIRST
2 DULY SWORN, TESTIFIED AS FOLLOWS:
3 DIRECT EXAMINATION
4 BY MR. STROUP:
be @. WOULD YOU PLEASE SPELL YOUR LAST NAME?
id b A. W-A-R-R.
7 @. MR. WARR, WHEN YOU WERE SERVED WITH A SUBPOENA LAST WEEK.
8 WERE YOU REQUESTED TO BRING A COPY OF GUIDELINES FOR THE FIELD
2 OPERATION?
10 A. YES. I WAS.
11 R. DID YOU BRING A COPY OF THAT WITH YOU TODAY?
12 A. YES, SIR.
13 QR. COULD I HAVE IT, PLEASE?
14 WOULD YOU BRIEFLY DESCRIBE YOUR EDUCATIONAL BACKGROUND.
13 PLEASE.
16 A. I HAVE A B.S. IN CRIMINAL JUSTICE. MASTERS IN EDUCATION,
17 REHARILITATION, COUNSELING.
13 2. WHEN DID YOU RECEIVE THE B.S. DEGREE?
a 19 Ae 1972,
20 @. AND THE MASTERS DEGREE?
21 ‘A. ABOUT 1978.
is RQ. WHERE ARE YOU CURRENTLY EMPLOYED?
23 A. HERE IN ATLANTA.
24 2. WITH WHAT AGENCY? |
25 A. STATE BOARD OF PARDONS AND PAROLES. |
—— — —— —— —— —— ——— ————— —— eer res te.
1327
WARR — DIRECT
pa
‘0. WHATS YOUR CURRENT POSITION WITH THE BOARD OF PARDONS AND
2 PAROLES?
3 A. FIELD OPERATIONS OFFICER.
4 @. WHAT ARE YOUR RESPONSIBILITIES AS A FIELD OPERATIONS
S OFFICER? : |
=] 'A. I REVIEW THE DELINQUENT REPORTS FROM FIELD OFFICERS, ISSUE
7 WARRANTS.
3 @. WHAT REPORT DO YOU REVIEW FROM THE FIELD OFFICERS?
@ A. DELINGQUENT REPORTS, PROGRESS AND CONDUCT REPORTS.
10 QR. IM SORRY. I MISSED THE FIRST WORD.
tg) THE COURT: DELINGQUENT REPORTS.
12 THE WITNESS: DEL INQUENT.
13 BY MR. STROUP:
14 QR. HOW LONG HAVE YOU HELD THIS POSITION IN ATLANTA?
13 A. SINCE MAY 1 OF “83.
16 @. WHAT POSITION DID YOU HOLD PRIOR TO YOUR ASSUMING THESE
17 RESPONSIBILITIES ON MAY 17?
13 A. I WAS PAROLE OFFICER 3,» IN AUGUSTA, GEORGIA.
w 19 @. HOW LONG WERE YOU A PAROLE OFFICER 3 IN AUGUSTA?
20 A. APPROXIMATELY TWD YEARS OR THREE YEARS. I CAN‘T REMEMBER
21 EXACTLY.
22 @. WHEN DID YOU FIRST BECOME EMPLOYED BY THE BOARD OF PARDONS
23 AND PAROLES?
24 A. I“VE BEEN WITH THE STATE SINCE 1972.
25 PARDONS AND PAROLES BOARD AND DEPARTMENT OF OFFENDER
WARR — DIRECT
1 REHABILITATION WERE COMBINED AT THAT TIME, 30 SINCE “72, I
2 GUESS.
3 Q. WHAT —- FROM 1972 UP UNTIL MAY OF 1933, DID YOUR
3 RESPONSIBILITIES WITH THE BOARD OF PARDONS AND PAROLES OR ITS
5 PREDECESSOR ORGANIZATION CHANGED?
& A. IN 1974, I THINK THE BOARD SEPARATED FROM THE DEPARTMENT OF
7 OFFENDER REHAB.
3 Q. HOW ABOUT YOUR OWN WORK RESPONSIBILITIES? HAVE THEY
9 CHANGED, DID THEY CHANGE BETWEEN THE PERIOD 1972 AND 19837?
10 A. IN ABOUT 1976. |
11 QR. ALL RIGHT, IN WHAT FASHION DID THEY CHANGE?
12 A. PRIOR TO “76 WE WERE DOING REPORTS FOR THE SUPERIOR COURT
13 JUDGES, BECAUSE WE WERE UNDER OFFENDER REHAB.
14 AND IN 1976, WHEN WE WERE PUT UNDER THE JURISDICTION OF
15 THE PARDONS AND PAROLES BOARD. WE STARTED DOING INVESTIGATIONS
16 JUST FOR THEM.
17 Q. PRIOR TO 197&, DID YOU DO ANY FUNCTIONS AT ALL THAT WERE
18 SIMILAR TO WHAT YOU DID FOR BOARD OF PARDONS AND PAROLES AFTER
w 19 19767
20 A. THE PRESENTENCE INVESTIGATIONS THAT WE DID ARE BASICALLY THE
21 SAME AS THE INVESTIGATIONS WE DO WITH THE BOARD.
22 |@. OKAY. BEFORE WE FOCUS ON THE REPORTS YOU DO FOR THE BOARD,
23 LET ME ASK YOU JUST A COUPLE MORE PRELIMINARY QUESTIONS.
24 ARE YOU FAMILIAR WITH THE EDUCATIONAL REQUIREMENTS
r)
a NECESSARY FOR BEING HIRED IN THE PAROLE OFFICER POSITION?
— — et et a Ra —— — —— —— — —— — ———
132%
WARR — DIRECT
1 A. YOU HAVE TO HAVE AN UNDERGRADUATE DEGREE.
2 @. AND IS IT YOUR UNDERSTANDING THAT ALL PAROLE OFFICERS HAVE
3 THAT UNDERGRADUATE DEGREE BEFORE THEY‘RE HIRED?
4 A. AT THIS TIME, THEY ARE.
S @. ALL RIGHT. DO YOU KNOW HOW LONG THAT REQUIREMENT HAS BEEN
b IN EFFECT?
7 A. NO, SIR, I SURE DON’T.
3 Q. OKAY. NOW, FOCUSING ON THE REPORTS THAT YOU WERE INVOLVED
9 WITH IN PREPARING FOR THE BOARD OF PARDONS AND PAROLES, SINCE
10 1976, 1 THINK YOU INDICATED. IS THAT CORRECT?
11 A. RIGHT.
12 @. WHAT: IS THAT THE FRIMARY RESPONSIBILITY OF THE FIELD
13 REPRESENTATIVE, OR THE, I GUESS YOU CALLED IT A PAROLE OFFICER,
14 JOB TITLE?
i5 A. THE FIELD PAROLE OFFICERS DO INVESTIGATIONS AND SUPERVISION
14 OF PAROLEES.
17 @. WHAT IS INVOLVED IN THE, IS THERE AN INVESTIGATION REPORT
18 THAT IS DONE ON PERSONS WHO BECOME SUBJECT TO THE STATE
WW 19 CORRECTION SYSTEM?
20 A. WE DO AN INVESTIGATION ON» I GUESS. JUST ABOUT EVERYBODY
21 THAT GOES INTO THE SYSTEM NOW.
22 |R. ALL RIGHT. JUST SO THAT THAT’S CLEAR, WOULD THAT INCLUDE
23 EVERYONE WHO HAS ENTERED A PLEA OR WHO WAS CONVICTED OF A MURDER
24 CHARGE?
25 A. I THINK THAT WOULD BE ACCURATE. YES. SIR.
——— ———— <——— ——————————— ———— ——" ———— T—, S—
WARR - DIRECT
1 @. AND HOW ABOUT THE SAME WITH RESPECT TO VOLUNTARY
2 MANSLAUGHTER?
3 A. WE WOULD STILL DO AN INVESTIGATION.
4 @. ALL RIGHT. WHAT IS THE PURPOSE OF THE INVESTIGATION THAT
3 You DO?
R i3 = A. JUST TO PROVIDE INFORMATION TO THE PAROLE BOARD ABOUT A
7 PARTICULAR CRIME THAT WAS COMMITTED.
3 @. ALL RIGHT. EXCUSE ME. NOW, WHAT TIME IS THE, WHAT’S THE
4 TIMING OF THIS INVESTIGATION?
10 LET ME ASK THAT QUESTION AGAIN.
11 WHEN; I THINK YOU SAID THAT, LET ME BACK UP. AND BE
12 CLEAR.
13 WHEN YOU WERE DOING REPORTS. YOU WERE DOING THEM IN
14 AUGUSTA DURING YOUR WHOLE TIME PERIOD?
15 A. RIGHT.
16 |@. OKAY. WHEN YOU, WOULD YOU JUST BRIEFLY DESCRIBE THE PROCESS
17 IN DEVELOPING AN INVESTIGATION WHEN YOU WERE IN AUGUSTA DOING
13 THESE REFORTS?
ww 19 A. WE RECEIVED A REQUEST FROM OUR RECORDS DEPARTMENT TO CONDUCT
20 AN INVESTIGATION. THE LEGAL INVESTIGATION -- YOU WANT ME TO GO
21 INTO DETAILS ON IT?
22 Q. PLEASE, JUST GENERALLY DESCRIBE THE STEPS INVOLVED IN
23 PREPARING THE REPORT? THE LEGAL. WHAT YOU CALL THE LEGAL
24 REPORT?
25 A. WE CHECK LOCAL CRIMINAL RECORDS. WE GO TO THE CLERK OF
WARR - DIRECT
COURT, GET SENTENCE INFORMATION, INDICTMENTS, JAIL TIME
AFFIDAVITS, WE GET POLICE REPORTS FROM THE AGENCY THAT HANDLED
THE CASE.
AND WE WRITE UP A REPORT WITH THAT INFORMATION IN IT
AND SUBMIT IT TO THE BOARD.
@. ALL RIGHT. IN TERMS OF THE TIMING OF THIS. HOW SOON AFTER A
CONVICTION WOULD YOU ROUTINELY BE CONDUCTING AN INVESTIGATION?
Pa JUST A SHORT TIME. I DON’T KNOW EXACTLY. AS SOON AS THE
CLERK OF COURT SUBMITS THE CONVICTION DATA TO THE DEPARTMENT.
THE DEPARTMENT OF CORRECTIONS, THEY IN TURN NOTIFY US. SO IT’S A
SHORT TIME.
@. ALL RIGHT. ARE THERE ANY CATEGORIES OF INFORMATION THAT ARE
ROUTINELY CONTAINED IN POLICE REPORTS THAT WOULD BE OMITTED BY
YOU IN YOUR REPORTS?
A. NOT THAT I KNOW OF.
THE COURT: EXCUSE ME, COUNSELOR. BUT AS WE ARE TALKING
ABOUT REFORTS GENERATED DURING THE MID-70“S AND AVAILABLE IN THE
‘80--21 PERIODS, YOU PROBABLY NEED TO MAKE SURE THIS WITNESS IS
FOCUSED ON THE TIME PERIQD.
MR. STROUP: ALL RIGHT. SIR.
BY MR. STROUP:
R. WITH RESPECT TO THE REPORTS THAT YOU PREPARED FOR THE PAROLE
BOARD, FOR USE BY THE PAROLE BOARD, AND I THINK YOU INDICATED
THAT WAS THE PERIOD 19746 THROUGH. UP UNTIL AND UNTIL 1983, IS
THAT CORRECT?
— —————— ——. T—————————— ————— —— ¥ em ———————_ A r—
WARR — DIRECT
lA. YES. fe
rs
rd
@. ALL RIGHT. WITH RESPECT TO THOSE REPORTS. WOULD THERE BE
ANYTHING CONTAINED IN THE POLICE REPORTS THAT YOU WOULD
ROUTINELY OMIT?
A. NOT THAT I’M AWARE OF.
R. ALL RIGHT.
MR. STROUP: EXCUSE ME ONE MOMENT, YOUR HONOR.
BY MR. STROUP:
@. ALL RIGHT, IN DESCRIBING GENERALLY THE PROCESS THAT WAS
O
N
0
N
e
W
—
INVOLVED IN OBTAINING THE REPORTS FOR THE PAROLE BOARD DURING
[W
Y
—-
THE PERIOD THAT YOUYVE JUST IDENTIFIED. WHAT, IF THE CASE
_ 8)
INVOLVED A HOMICIDE, WHAT OTHER SOURCES OTHER THAN THE POLICE
13 |REFORT AND THE CLERK’S OFFICE WOULD YOU ROUTINELY CONTACT?
14 A. IF QUR REPORT. IF WE DIDN’T THINK THE REPORT HAD ALL THE
13 INFORMATION THAT WE THOUGHT WE NEEDED, WE MAY INTERVIEW THE
16 ‘OFFICERS THAT WERE INVOLVED IN THE CASE.
17 @. ALL RIGHT?
13 A. AND THAT PARTICULAR TYPE CASE, WE FROBABLY WOULD.
& 19 G. YOU PROBABLY WOULD?
20 A. YEAH.
21 RA. ALL RIGHT. ARE THERE EVER ANY OCCASIONS IN FREPARING THE
22 REPORT WHEN YOU CALLED UPON OTHER LOCAL OFFICIALS RELATED TO THE
23 TRIAL OF THE CASE?
24 A. OKAY. WE POSSIBLY WOULD TALK TO THE DISTRICT ATTORNEY THAT
23 HANDLED THE CASE.
1333
WARR - DIRECT
3. IN WHAT SITUATIONS WOULD YOU DO THAT?
A. IN MURDER CASES, RAPE CASES, ARMED ROBBERY, THE MORE SERIOUS
OFFENSES.
@. AND WHAT WOULD BE THE INFORMATION SOUGHT FROM THE DISTRICT
ATTORNEY?
A. JUST HIS COMMENTS CONCERNING THE CASE.
@. CAN YOU TELL OF ANY EXAMPLES OF COMMENTS FROM THE DISTRICT
ATTORNEY THAT YOU WOULD RECEIVE?
A. NOT IN PARTICULAR.
@. WELL, WOULD IT GO TO HIS IMPRESSIONS REGARDING WHAT HAPPENED
AT THE. INVOLVING THE PARTICULAR CRIME?
A. YES, SIR, IT COULD.
@. ALL RIGHT. CAN YOU TELL OF ANY OTHER EXAMPLES?
A. NO, SIR.
@. WERE THERE ANY GUIDELINES IN EFFECT THAT DIRECTED THAT.
DIRECTED YOU IN THE STEPS THAT YOU SHOULD TAKE IN CONDUCTING
THIS INVESTIGATION FOR THE PAROLE BOARD REPORT?
A. THE MANUAL THAT YOU HAVE.
RQ. ALL RIGHT.
THE COURT: WAS THAT MANUAL IN EFFECT IN THE MID-7Q0757%
THE WITNESS: WE HAD A MANUAL. I THINK THAT PARTICULAR
MANUAL THERE WAS NOT COMPLETED UNTIL AROUND “7%, I THINK. I
DONT REMEMBER THE EXACT DATE.
THE COURT: AFTER IT WAS COMPLETED. DID YOU GO BACK AND
CONFORM THE REPORTS THAT HAD BEEN PREVIOUSLY SUPFLIED TO THE
[3
(4)
Lon
)
WARR — DIRECT
PAROLE BOARD WITH THE MANUAL OR DID THE OLD REFORTS REMAIN AS
|
PREPARED UNDER THE OLD PROCEDURE?
THE WITNESS: AS FAR AS THE PROCEDURE FOR CONDUCTING
OUR INVESTIGATION. I DON’T THINK THAT WAS CHANGED. IT WAS JUST
THAT THEY UPDATED THE MANUAL, IF I UNDERSTAND YOUR RUESTION.
THE COURT: WELL. FOR EXAMPLE, DID YOU GENERATE SUCH
REPORTS AS YOU’VE BEEN TESTIFYING ABOUT IN “72, “73, “747
THE WITNESS: YES, SIR, THE BOARD, SINCE IT WAS
CREATED, THEY, YOU KNOW, WE“VE HAD TO SUBMIT OR OFFICERS HAVE
HAD TO SUBMIT THE SAME TYPE INVESTIGATION.
THE COURT: DID YOU FOLLOW THE SAME PROCEDURES IN “72,
“73, “74 AS ARE OUTLINED IN THAT MANUAL?
THE WITNESS: YES, SIR, AS WELL AS I CAN REMEMBER.
t
i
BY MR. STROUP: @. LET ME DIRECT YOUR ATTENTION TO PARAGRAPH 3.02 OF THOSE
GUIDELINES, IF I MIGHT?
A. OKAY.
Q. WOULD YOU —— IS IT YOUR RECOLLECTION THAT THOSE GUIDELINES
WERE IN EFFECT THROUGHOUT THE TIME PERIOD, “72 THROUGH 19837
A. AS WELL AS I CAN REMEMBER.
R. ALL RIGHT?
A. I CAN‘T SAY FOR SURE. I DIDN“T DEAL DIRECTLY WITH THE
PAROLE BOARD AT THAT TIME.
a. ALL RIGHT. BUT FROM 1974, YOU DID, ISNT THAT CORRECT?
A. YES. SIR.
WARR - DIRECT
1 @. ALL RIGHT. AND WHAT DOES THAT GUIDELINE AT PARAGRAPH 3.02
STATE WITH RESPECT TO THE NEED OF THE PAROLE BOARD TO HAVE
COMPLETE INFORMATION REGARDING THE CRIME THAT HAS OCCURRED?
A. YOU WANT ME TO READ A PARTICULAR PART?
2
3
4
5 @. WELL, IT -— IF YOU SEE A PART IN THERE THAT ADDRESSES THAT.
[3
7 A. TALKING ABOUT THE THOROUGHNESS OF THE REPORT?
8 @. YES. WHAT DOES, WHAT DO THE GUIDELINES CALL FOR?
9 A. I HAVE THREE WHOLE PAGES.
0 @. ALL RIGHT. IF YOU WOULD JUST READ THE, BEGINNING "THE
11 IMPORTANCE OF THIS REPORT" SENTENCE?
12 A. OKAY. “THE IMPORTANCE OF THIS REPORT CANNOT BE
13 OVEREMPHASIZED. AND WHERE THE OFFENDER HAS BEEN CONVICTED OF
14 CRIMES AGAINST THE PERSON, IT IS IMPERATIVE THAT OFFICER EXTRACT
13 THE EXACT CIRCUMSTANCES SURROUNDING THE OFFENSE."
146 @. AND THE NEXT ONE?
17 A. "ANY AGGRAVATING OR MITIGATING CIRCUMSTANCES MUST BE
18 INCLUDED IN THE REPORT."
Ww Yd @. AND THEN LET ME DIRECT YOUR ATTENTION TO PARAGRAPH 2 ON THAT
20 SAME PAGE. WITH REGARD TO WHAT IS THOUGHT REGARDING PRIOR
23 OFFENSES?
22 DOES IT CALL FOR A, AS COMPLETE A DOCUMENTATION AS
23 POSSIBLE WITH RESPECT TO PRIOR OFFENSES?
24 A. I DON‘T SEE IT IN THAT PARTICULAR PARAGRAPH.
23 @. MAYBE I MISREAD IT.
1336
WARR - DIRECT
1 THAT PARAGRAPH IN FACT GOES TOWARD THE DETAIL WITH
2 RESPECT TO PARTICULAR OFFENSES. IS THAT CORRECT?
A. YES» SIR. Ww
4 @. ALL RIGHT. TURNING TO PARAGRAPH 9 ON THE NEXT PAGE, DOES
S THAT INDICATE WHAT SHOULD BE INCLUDED IN THE REPORT WITH RESPECT
0 THE CIRCUMSTANCES OF THE PARTICULAR OFFENSE?
A. YES, SIR.
@. ALL RIGHT. COULD YOU JUST READ WHAT THAT PARAGRAPH CALLS
M
L
N
FOR?
10 A. "CIRCUMSTANCES OF THE OFFENSE. THIS SHOULD BE OBTAINED IN
11 NARRATIVE FORM. IT SHOULD BE TAKEN FROM THE INDICTMENT, THE
12 DISTRICT ATTORNEY” S OFFICE. THE ARRESTING OFFICERS. WITNESSES
13 AND THE VICTIM. A WORD PICTURE TELLING WHAT HAPPENED. WHEN,
14 WHY, WHERE. HOW AND TO WHOM SHOULD BE PREPARED. OTHER
13 INFORMATION TO PROVIDE INCLUDES THE DATE OF ARREST. DATES IN
16 JAIL FROM TIME OF ARREST TO DATE OF CONVICTION ON PRESENT
17 OFFENSE. IF THE SUBJECT IS ON BOND, ON ESCAPE OR IN A MENTAL
13 INSTITUTION DURING PART OF THIS TIME, THIS SHOULD ALSO BE SHOWN
w 19 BY GIVING APPROPRIATE DATES. IF THE OFFENDER WAS ARRESTED AND
20 HELD IN JAIL IN ANOTHER STATE IN CONNECTION WITH THIS OFFENSE,
ey THE DATE IN CUSTODY EITHER IN THE OTHER STATE OR IN GEORGIA
22 SHOULD BE GIVEN. IF HE WAS ARRESTED ON OTHER CHARGES. THE DATE
23 HE WAS RELEASED ON THE OTHER CHARGE MUST BE SHOWN."
24 R. WAS THERE ALSO ANY REQUIREMENT IMPOSED BY THE GUIDELINES OR
25 SUGGESTED BY THE GUIDELINES THAT INDICATION SHOULD BE GIVEN IN
| 1337
| WARR — DIRECT
1 THE REPORT AS TO THE SOURCE OF THE INFORMATION?
2 A. YES, SIR.
3 R. IS THAT PARAGRAPH 107 A. YES. SIR.
@. AND IT INDICATES THAT THE SOURCE OF THE INFORMATION SHOULD
BE IDENTIFIED?
A. YES, SIR.
@. AND THEN WITH RESPECT TO THE GUIDELINES AGAIN. IS THERE ANY
0
OO
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+
>
PARTICULAR COMMENT IN THE GUIDELINES WITH RESPECT TO PERSONS WHO
10 HAVE RECEIVED LIFE SENTENCES OR SENTENCES IN EXCESS OF FIFTEEN
11 YEARS?
12 I DIRECT YOUR ATTENTION TO THAT?
13 A. OKAY.
14 QR. WHAT DOES IT READ?
15 A. "PAROLE OFFICERS SHOULD BE AS THOROUGH AS POSSIBLE WHEN
146 CONDUCTING POST-SENTENCES ON PERSONS WHO HAVE RECEIVED LIFE
17 SENTENCES OR SENTENCES IN EXCESS OF FIFTEEN YEARS."
1& @. ALL RIGHT, SIR. WHEN YOU CONDUCTED REPORTS, DID YOU,
pe 12 YOURSELF, ATTEMPT TO FOLLOW THE GUIDELINES AS DESCRIBED IN THE
20 OFERATIONS MANUAL?
21 A. YES I DIN.
22 MR. STROUP: IF I MIGHT CONFER WITH CO-COUNSEL FOR ONE
23 MOMENT?
24 WILL YOU IDENTIFY THIS AS LW-17
23 BY MR. STROUP:
1338
WARR — DIRECT
p
n
Q. LET ME JUST FOR THE RECORD SHOW YOU A DOCUMENT THATS BEEN
LABELED LW-1 AND ASK YOU IF YOU RECOGNIZE THAT DOCUMENT?
A. YES, SIR.
@. AND WHAT IS THAT?
FIELD OPERATIONS MANUAL.
@. ALL RIGHT. OF THE BOARD OF PARDONS AND PAROLES?
A. YES, SIR.
@. ALL RIGHT. AND I BELIEVE IT WAS YOUR TESTIMONY EARLIER THAT
TH
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AT LEAST WITH RESPECT TO THE GUIDELINES RELATED TO THE
10 PREPARATION OF THE REPORT REGARDING THE CIRCUMSTANCES OF THE
11 CRIME, YOUR RECOLLECTION IS THAT THERE ARE NO CHANGES IN THIS
12 GUIDELINE FROM THE ONE THAT EXISTED PREVIOUSLY?
13 A. TO MY KNOWLEDGE, THERE“S NONE.
14 MR. STROUP: YDUR HONOR. PETITIONER OFFERS LW-1.
15 MS. WESTMORELAND: YOUR HONOR, AT THIS POINT ILL
16 OBJECT TO THE INTRODUCTION. FIRST OF ALL, I SEE NO RELEVANCE OF
17 THIS ENTIRE DOCUMENT. THE PERTINENT PORTIONS HAVE APPARENTLY
13 BEEN READ INTO THE RECORD PREVIOUSLY. BESIDES THE CONCERNS OF
w 19 UNDULY BURDENING THE RECORD, WE ALSO HAVE NO SHOWING THAT THESE
20 GUIDELINES WERE NECESSARILY FOLLOWED BY ANY PARTICULAR PAROLE
21 OFFICER; JUST THAT THESE ARE GUIDELINES AS THEY EXISTED IN 1979,
22 AND SUPPOSEDLY AS THEY EXISTED PRIDR TO THAT TIME.
23 | MR. STROUP: IF I MIGHT SPEAK TO THAT BRIEFLY. YOUR
24 HONQCR.
23 I THINK THAT THIS WITNESS HAS STATED THAT HE DID FOLLOW
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WARR - DIRECT
THOSE GUIDELINES. AND I THINK THAT IT“S VALUABLE FOR THE COURT
IN MAKING SOME ASSESSMENT OF THE RELIABILITY OF THE INFORMATION
UPON WHICH DOCTOR BALDUS” RUESTIONNAIRES THEMSELVES WERE BASED.
THE COURT: PRIOR TQ 1979, YOU SAY YOU BELIEVE IT’S
THE, THE PRACTICES DESCRIBED IN THAT SET OF GUIDELINES WERE
FOLLOWED? .
DID YOU UNDERSTAND THAT THE PRACTICES THAT WERE BEING
FOLLOWED WERE THE ORDERS. DIRECTIVES, POLICIES OR WHAT HAVE YOU.
OF THE BUREAU THAT YOU WERE WORKING FOR AT THE TIME?
THE WITNESS: YES, SIR.
THE COURT: WHAT, DID THIS SIMPLY CODIFY WHAT EVERYBODY
WAS DOING?
THE WITNESS: WE HAD A MANUAL AT THAT TIME. IF THAT'S
WHAT YOURE ASKING, I'M ——
THE COURT: WHAT MR. STROUP READ YOU. IS THAT OUT OF
THIS MANUAL? DOES THAT MIRROR WHAT WAS IN THE OLD MANUAL TQ THE
BEST OF YOUR KNOWLEDGE?
THE WITNESS: I CAN‘T REMEMBER EXACTLY WHAT WAS IN THE
OLD MANUAL. THE FORMS WE HAVE NOW MIGHT HAVE CHANGED A LITTLE
BIT, BUT I COULDN’T SAY FOR SURE HOW THEY CHANGED, ITS BEEN A
GOOD WHILE AGO. BASICALLY I THINK IT’S THE SAME TYPE OF
INFORMATION THAT WE PROVIDED BACK THEN.
THE COURT: SO WHAT YOU‘RE ASKING ME TO DO IS TO DRAW
THE INFERENCE THAT THE EMPLOYEES OF THE BOARD FOLLOWED THEIR OWN
REGULATIONS. THE PROBLEM IS WE DON’T KNOW WHAT THE EMFLOYEES
1340
WARR - CROSS
THOUGHT THE REGULATIONS WERE IN THE APT PERIOD EXCEPT TO THE
EXTENT THAT YOU AND I BOTH HEARD THE TESTIMONY. WHICH IS A
LITTLE EQUIVOCAL.
I WILL ALLOW IT. I WOULD SAY THAT I WOULD PREFER TO
SEE THIS REDACTED SO WE DON’T NECESSARILY HAVE TO HAVE THE WHOLE
THINK?
MR. STROUP: I-M SORRY, YOUR HONOR?
THE COURT: I SAY I WOULD PREFER TO SEE YOU REDACT IT
JUST TO GET THE PORTIONS OUT IF IT’S JUST A COUPLE PLACES S50 WE
DON’T ADD THAT VOLUME OF PAPER TO THE ARCHIVES.
MR. STROUP: I UNDERSTAND THAT. YOUR HONOR, AND WE-RE
OPERATING AT SOMEWHAT OF A DISADVANTAGE IM THAT WE WERE ONLY
ABLE TO LOOK AT THE GUIDELINES FOR THE VERY FIRST TIME THIS
AFTERNOON IN THE COURTROOM.
THE COURT: I WILL ALLOW YOU TO INTRODUCE THE ENTIRETY
OF THE GUIDELINES. WITH THE ADMONITION AND HOFE THAT YOU WILL GO
BACK THROUGH AND FIND OUT WHAT PARTS YOU REALLY WANT TO
DESIGNATE FOR THE RECORD AND WITHDRAW THE BALANCE. AND
SUBSTITUTE COPIES FOR THOSE PAGES.
MR. STROUP: THANK YOU, YQUR HONOR.
THE COURT: ALL RIGHT, DO YOU HAVE ANY QUESTIONS OF MR.
WARR?
CROSS-EXAMINATION
BY MS. WESTMORELAND:
2. MR. WARR, IN RELATION TO THIS REPORT THAT YOU WERE
WARR - CROSS
1 DISCUSSING THE PREPARATION OF, THE PAROLE OFFICER‘S REPORT. AT
2 WHAT STAGE IN THE PROCEEDING AGAINST A PARTICULAR OFFENDER IS
3 THIS REPORT PREPARED?
A. AFTER HE’S CONVICTED.
@. SO AFTER HES, WOULD THAT BE AFTER HE-S ENTERED THE STATE
FRISON SYSTEM?
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7 |A. HE’S ALREADY ENTERED THE STATE SYSTEM. WE“RE NOT NOTIFIED
8 |UNTIL AFTER HE“S ENTERED THE STATE SYSTEM AND BECOMES, HE’S
9 |ASSIGNED A NUMBER. INSTITUTION NUMBER, AND CORRECTIONS NOTIFIES
0 |US WHEN THEY PICK HIM UP.
11 |@. S50 YOUR INFORMATION WOULD REFLECT THE TOTAL INFORMATION
12 |THAT’S BEEN ACCUMULATED DURING BOTH PRIOR TO THE TRIAL AND
13 |DURING THE TRIAL AND AFTER THE TRIAL. INSTEAD OF JUST
14 | INFORMATION THAT WAS KNOWN PRIOR TO TRIAL, WOULD THAT BE
15 |CORRECT?
16 A. RIGHT. ANY, ANY INFORMATION, YEAH, I SAY YES.
17 |l@. IN MAKING. WHEN YOU INDICATED THAT YOU, I BELIEVE, SOLICITED
18 COMMENTS FROM THE DISTRICT ATTORNEYS IN MAKING THESE REPORTS,
19 WAS THAT ACCURATE AS WELL?
20 |A. YES.
21 |@. DID YOU ASK, WERE YOU GIVEN A FORM FOR A, SPECIFIC
22 INQUIRIES, SPECIFIC QUESTIONS TO BE ASKED OF THE DISTRICT
23 ATTORNEYS OR WAS IT JUST A GENERAL QUESTION?
24 |A. IT WAS A GENERAL QUESTION, IF THEY HAD ANY COMMENTS ABOUT A
2= PARTICULAR CASE.
WARR - CROSS
1 '@. SO THERE WERE NO SPECIFIC AREAS THAT YOU WERE INSTRUCTED TO
2 ASK ABOUT?
3 A. NO.
4 @. AS FAR AS GOING BACK AND TALKING TO THE POLICE OFFICERS
3 INSTEAD OF JUST RELYING ON THE POLICE OFFICER REPORTS, WAS THAT
b ROUTINELY DONE IN SPECIFIC CATEGORIES OF CASES?
7 A. I WOULDN’T SAY ROUTINELY. THAT”S SORT OF LEFT UP TO THE
8 INDIVIDUAL OFFICERS.
4 THE COURT: WELL, WERE DEALING WITH MURDER CASES HERE,
10 S00 IF YOU WOULD RESTRICT YOUR ANSWERS TO YOUR PERCEPTIONS OF
i1 WHAT HAPPENED IN THE HOMICIDE AND MURDER CASES.
12 THE WITNESS: THE GUIDELINES, I THINK, SAY, THE POLICY
i3 IS THAT WE WOULD PROBABLY, OR THE BOARD WOULD WANT TO CONTACT
14 |THE OFFICERS THAT HANDLED THE CASE. BUT IF WE HAD A THOROUGH
13 ENOUGH INVESTIGATION, OFFENSE REPORT, FILED BY THE LAW
16 ENFORCEMENT OFFICERS, IF IT WAS DETAILED, AND WE WOULDN'T
17 NECESSARILY CONTACT THEM.
18 BY MS. WESTMORELAND:
@ 19 MS. WESTMORELAND: THAT-S ALL THE QUESTIONS. I HAVE.
20 THANK YOU.
23 MR. STROUP: NO QUESTIONS. YOUR HONOR.
22 THE COURT: WAIT JUST A MINUTE. I GUESS YOURE
23 PRINCIPALLY FAMILIAR WITH THE REPORTS TURNED OUT BY THE RICHMOND
24 COUNTY CONSTABULARY THOSE ARE THE ONES THAT YOU SAW MOST OFTEN,
23 IS THAT RIGHT?
WARR ~ CROSS
1 THE WITNESS: YES. SIR.
THE COURT: WHAT FORMAT WERE THOSE POLICE REPORTS? [8
3 THE WITNESS: THE REPORTS THAT THE OFFICERS FILED?
4 IT’S IN A, THEY“VE GOT A FORM THAT THEY FILL IN VITAL
wm
STATISTICS ON, AND THEN, THEY. THERE-S OPEN SPACE AFTER THAT
& ‘WHERE THEY ACTUALLY WRITE QUT THE OFFENSE REPORT.
Yi THE COURT: HOW LONG IS THAT?
8 THE WITNESS: I GUESS IT WOULD BE ACCORDING TO THE
4 INDIVIDUAL CASE. I GUESS THAT’S THE EASIEST WAY TQ ANSWER IT.
0 IT WOULD BE ACCORDING TO THE INDIVIDUAL CASE.
11 THE COURT: DO YOU HAVE A FEELING OF WHAT YOU TYPICALLY
12 "ENCOUNTERED IN HOMICIDE AND MURDER CASES? WAS IT ALWAYS GREATER
13 THAN TEN PAGES. ALWAYS LESS THAN TWO?
14 THE WITNESS: I NEVER SAW ONE THAT WAS TEN PAGES LONG.
15 I SAY PROBABLY A COUFLE PAGES. 3 PAGES. MAYBE.
14 THE COURT: MY PERSONAL IMPRESSION FROM HAVING LOOKED
17 AT POLICE REPORTS IN OTHER POSITIONS. IS THAT THEY VERY DFTEN
18 ARE KIND OF LIKE INVESTIGATIVE SUMMARIES OF WHAT THE OFFICER IN
w 19 |CHARGE OF A CASE DISCOVERED.
20 IS THAT A FAIR CHARACTERIZATION OF WHAT YOU SAW?
gi] THE WITNESS: YES, SIR. WE. THERE WOULD BE, I WOULD
= THINK, SEVERAL REPORTS. THE ARRESTING OFFICERS, OR THE FIRST
23 OFFICER AT THE SCENE WOULD USUALLY FILE, YOU KNOW, A REAL SHORT
24 REPORT. THEN IT WOULD BE TURNED OVER TO THE INVESTIGATORS, AND
23 THEY WOULD GIVE A, MORE DETAILED INFORMATION.
1344
WARR ~ CROSS
1 THE COURT: HAVE YOU EVER SEEN AN F.B.I. REPORT?
2 THE WITNESS: NO. SIR.
3 THE COURT: ANY OTHER QUESTIONS OF THE WITNESS?
3 MR. STROUP: NO, YOUR HONOR.
THE COURT: ALL RIGHT. ANY REASON MR. WARR CAN‘T BE
a 3 EXCUSED?
7 MR. STROUP: NO REASON. YOUR HONOR.
a THE COURT: THANK YOU FOR ATTENDING. YOU‘RE EXCUSED.
9 THE WITNESS: YES. SIR. YOU WANT ME TO LEAVE THIS UP
10 HERE?
11 THE COURT: LEAVE IT WITH US. IF PETITIONER DOES WHAT
12 I HOPE HE“LL DO, HE’LL GIVE YOU THAT BACK AND SUBSTITUTE THESE
13 PAGES IN THE RECORD. WE ARE APPROACHING FIVE HUNDRED POUNDS, I
14 THINK, IN THIS CASE.
1% | MR. STROUP: YES, YOUR HONOR.
15 | (WITNESS EXCUSED)
17 THE COURT: ALL RIGHT. NOW. I UNDERSTAND THAT HAVING
18 |PREVIOUSLY MADE THE DOCUMENT TENDERS. THAT COMPLETES YOUR
w 19 | PRESENTATION, SUBJECT TO YOUR REBUTTAL CASE?
20 MR. BOGER: THAT’S CORRECT. YOUR HONOR.
21 THE COURT: ALL RIGHT. FINE.
22 ALL RIGHT, MS. WESTMORELAND. LET ME HEAR FROM WHAT YOU
23 HAVE TO SAY.
24 MR. BOGER: YOUR HONCR, PERHAPS ONE WORD. YOUR HONOR
23 REJECTED THE REPORT OF ROBERT MORROW EARLIER TODAY. I JUST WANT
1345
WARR - CROSS
1 TO INFORM THE COURT OF SOMETHING 30 THERE NOT BE ANY
2 MISUNDERSTANDING LATER ONs WE ANTICIPATE THAT DURING THE
3 CROSS-EXAMINATION OF ONE OF THE STATE’S WITNESSES WE MAY MAKE
4 REFERENCE TO THAT REPORT, AND ASK THE EXPERTS OPINION ABOUT IT,
3 "IT MAY COME UP IN SOME REBUTTAL TESTIMONY. I HOPE THATS NOT
4 OUTSIDE THE COURT‘S GUIDELINES. IT’S SEEMS TO US THAT THATS
7 THE NORMAL THING WHERE YOU ASK THE EXPERT IF HE“S READ SOMETHING
8 IN THE FIELD.
? THE COURT: IF YOU ESTABLISH IT“S A LEARNED TREATISE,
10 |YOU MAY DO IT.
11 MR. BOGER: FINE. I JUST DIDN’T WANT THE COURT TO BE
12 |SURPRISED BY THAT, AND HAVE US LOOK AS IF WE TRIED TO SLIP
13 SOMETHING BY. THANK YOU.
14 THE COURT: I DO NOT MEAN TO OFFER AN OPINION AS TO
1S |WHETHER I THINK YOU“RE TRYING TO GET IT IN THE BACK DOCR OR NOT.
16 |BUT IN ANY EVENT. IF YOU ESTABLISH IT IS A LEARNED TREATISE, YOU
17 CAN CERTAINLY DO IT.
18 MR. BOGER: THANK YOU YOUR HONOR.
Ww 19 MS. WESTMORELAND: YOUR HONOR, AT THIS TIME, I CALL
20 DOCTOR JOSEPH KATZ TO THE STAND.
21 THE COURT: ALL RIGHT. COME UP AND BE SWORN.
22 HOW ABOUT GETTING ME ANOTHER FAD?
23 THE CLERK: IF YOU WILL RAISE YOUR RIGHT HAND, SIR.
24 DO YOU SOLEMNLY SWEAR THE EVIDENCE YOU SHALL GIVE IN THE
23 TRIAL NOW BEFORE THIS COURT SHALL BE THE TRUTH, THE WHOLE TRUTH,
1346
KATZ - DIRECT
AND NOTHING BUT THE TRUTH. SO HELF YOU GOD? Ty
THE WITNESS: I DQ.
THE CLERK: HAVE A SEAT ON THE WITNESS STAND. SIR.
AND STATE YOUR FULL NAME FOR THE RECORD.
THE COURT: DON’T SAY MUCH OF ANYTHING UNTIL I GET ANOTHER P
ALL RIGHT. GO AHEAD.
THE WITNESS: MY NAME IS JOSEPH LAUREN KATZ.
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JOSEPH LAUREN KATZ,
10 CALLED AS A WITNESS ON BEHALF OF THE DEFENDANT. BEING FIRST
11 DULY SWORN, TESTIFIED AS FOLLOWS:
12 DIRECT EXAMINATION
13 BY MS. WESTMORELAND:
14 @. WOULD YOU STATE YOUR NAME FOR THE RECORD. PLEASE?
13 A. YES. MY NAME IS JOSEFH LAUREN KATZ.
16 MS. WESTMORELAND: YOUR HONOR, WE FROFDSE TO QUALIFY
17 |DOCTOR KATZ AS AN EXPERT IN ANALYZING DATA, IN RESEARCH DESIGN.
12 AS AN EXPERT IN STATISTICS, STATISTICAL ANALYSES AND IN
& 19 QUANTITATIVE METHODS.
20 THE COURT: ALL RIGHT.
21 BY MS. WESTMORELAND:
22 R. DOCTOR KATZ, WOULD YOU STATE YOUR PRESENT OCCUPATION FOR US,
23 PLEASE?
24 A. I”M AN ASSISTANT FROFESSOR AT GEORGIA STATE UNIVERSITY IN
25 THE DEPARTMENT OF QUANTITATIVE METHODS.
| KATZ - DIRECT
!
[e
y @. AND LET ME HAND YOU WHAT WE HAVE ALREADY MARKED AS
2 RESPONDENTS EXHIBIT NUMBER 14 AND ASK IF YOU WILL IDENTIFY
3 THIS, PLEASE?
4 A. YES. THIS IS A COPY OF MY VITA.
S @. DID YOU PREPARE THAT YOURSELF, DOCTOR KATZ?
ae & A. YES. 1 DID.
Z @. AND TO YOUR KNOWLEDGE, IS THAT VITA CURRENT?
8 A. YES.
? @. AND IS IT UP TO DATE AS OF WHAT DATE? DO YOU RECALL?
10 A. AS OF A FEW DAYS AGO.
13 @. DOCTOR KATZ, I WOULD LIKE TO JUST BRIEFLY GO THROUGH SOME OF
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YOUR BACKGROUND, WITHOUT DUPLICATING WHATS IN THE VITA IF
13 POSSIBLE.
14 AND I NOTICE FROM THE VITA THAT YOU OBTAINED YOUR B.S.
13 DEGREE IN MATHEMATICS. AND WOULD YOU TELL US WHAT THE EMPHASIS
16 WAS IN THAT DEGREE. IN YOUR UNDERGRADUATE WORK IN MATHEMATICS?
17 'A. IN MY UNDERGRADUATE WORK, I TOOK A VARIETY OF MATHEMATICS
13 COURSES RANGING FROM HONORS CALCULUS, THROUGH REAL ANALYSIS.
, 19 NUMERICAL ANALYSIS. GRAFH THEORY. VECTOR ANALYSIS, COMPLEX
VARIABLES AND OTHER COURSES.
21 | MY FOCUS WAS ESSENTIALLY MATH COURSES DURING THAT
22 PERIOD.
23 @. AND WHAT TYPE OF FOCUS DID THE MATH DEPARTMENT HAVE AT
24 L.S.U.? THEORETICAL OR APPLIED?
23 A. YES. THE MATH DEPARTMENT AT L.S5.UJ. I3 A THEORETICAL MATH
1348
KATZ - DIRECT
3 DEPARTMENT. AND MY FOCUS AT THAT TIME WAS MORE ON THEORY.
2 G. AND WHAT WAS YOUR PRIMARY INTEREST DURING YOUR UNDERGRADUATE
3 WORK OR DID YOU HAVE ONE?
4 A. IN MY UNDERGRADUATE WORK I TRIED TO GET A BALANCED. ROUNDED
3S EDUCATION, WITH AN EMPHASIS IN MATH COURSES, AND QUANTITATIVE
é COURSES. .
7 @. AND AFTER YOU RECEIVED YOUR B.S. IN MATHEMATICS. WHAT COURSE
3 WORK OR AREA DID YOU PURSUE AT THAT TIME?
4 A. THEN I PURSUED A BACHELORS DEGREE IN COMPUTER SCIENCE AT
10 LOUISIANA STATE UNIVERSITY.
11 @. AND WHAT WAS THE FOCUS OF YOUR COURSE WORK DURING THAT
12 PERIOD?
13 A. THE FOCUS OF THE COURSE WORK WAS COMPUTER SCIENCE COURSES
14 RANGING FROM BASIC COMPUTER SCIENCE COURSES, PROGRAMMING
15 LANGUAGES. COMPUTER HARDWARE. OPERATING SYSTEMS. DISCRETE
146 STRUCTURES. AND OTHER COURSES.
17 @. DURING THIS TIME, ACTUALLY I GUESS IT’S A FOUR-YEAR PERIOD
18 IN WHICH YOU OBTAINED TWO BACHELORS DEGREES, WERE YOU A MEMBER
w 1% OF ANY HONORARY ORGANIZATIONS?
20 A. YES, 1 WAS SELECTED TO THE HONORARY COMPUTER SCIENCE
21 FRATERNITY WHEN I WAS A COMPUTER SCIENCE MAJOR.
22 @. AND DID YOU HAVE ANY COURSES IN THE AREA OF STATISTICS
23 DURING YOUR UNDERGRADUATE WORK IN EITHER OF THESE DEGREES?
24 A. DURING MY UNDERGRADUATE WORK, I HAD TWO COURSES. ONE COURSE
23 WAS AN INDUSTRIAL ENGINEERING COURSE IN STATISTICS. THE SECOND
KATZ — DIRECT
fre
t COURSE WAS A QUANTITATIVE METHODS COURSE DEALING WITH OPERATIONS
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RESEARCH. AN INTRODUCTION TO OFERATIONS RESEARCH.
Q. AFTER YOU RECEIVED YOUR BACHELOR DEGREE IN COMPUTER SCIENCE.
WHAT CAREER COURSE DID YOU PURSUE AT THAT TIME?
A. 1 THEN ATTENDED LOUISIANA STATE UNIVERSITY GRADUATE SCHOOL.
MAJORING IN MATHEMATICS.
Q. AND WHAT WAS THE GENERAL COURSE WORK THAT YOU TOOK DURING
THAT TIME PERIOD? ; |
A. AGAIN, THE MATHEMATICS DEPARTMENT. LOUISIANA STATE
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UNIVERSITY, IS A THEORETICAL MATHEMATICS DEPARTMENT. I SPENT A
33 LOT OF TIME TAKING COURSES IN ABSTRACT ALGEBRA, TOPOLOGY AND
12 REAL ANALYSIS: WITH SOME COURSES IN COMBINATORICS, AND AUTOMATIC
13 FORMS, WHICH IS A FORM OF COMBINATORICS.
14 THE COURT: WAIT. WAIT. YOU NEED TO SPEAK UP AND
15 ENUNCIATE. I’M HAVING TROUBLE HEARING AND UNDERSTANDING YOU.
16 MR. FORD: YOUR HONOR, SINCE WERE OFF THE RECORD, I
17 DON‘T KNOW IF THIS NEEDS TO BE, BUT JUST A COUPLE THINGS I WOULD
18 LIKE THE COURT INFORMED OF.
w 19 PROFESSOR WOODWORTH 1S AT COUNSEL TABLE WITH ME. I
20 JUST WANT THE COURT TO KNOW THAT AND THE COURTS FERMISSION.
21 ALSO FOR THE COURTS INFORMATION, PROFESSOR BERK IS IN
22 THE COURTROOM, HAS BEEN JUST THIS AFTERNOON. WE WANTED THE
23 COURT TO KNOW.
24 THE COURT: THANK YOU.
23 GO AHEAD.
| 1350
KATZ - DIRECT
'BY MS. WESTMORELAND: Pa
y
2 @. DOCTOR KATZ, I BELIEVE YOU MENTIONED A COURSE IN
3 COMBINATORICS. WOULD YOU SPELL THAT FOR THE COURT REPORTER.
PLEASE. IF YOU RECALL?
A. C-0-M-B-1-N-A-T-0-R-I1-C-S.
@. AND YOU INDICATED, I BELIEVE. THAT ONE OF THE COURSES YOU
WERE TAKING WHILE WORKING ON THE WHAT DEGREE?
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A. MY GRADUATE MATHEMATICS DEGREE.
0 2 » MASTERS DEGREE?
10 A. MASTERS DEGREE. YES.
11 QB. WERE YOU WORKING ON ANY KIND OF ASSISTANTSHIP OR ANYTHING OF
12 THAT SORT AT THAT TIME?
13 A. YES. AT THAT TIME I WAS A TEACHING ASSISTANT. AND I TAUGHT
14 UNDERGRADUATE MATH COURSES.
15 @. AND WHEN DID YOU RECEIVE YOUR MASTERS DEGREE?
1& ‘A. 1 RECEIVED MY MASTERS DEGREE IN 1975. I BELIEVE IT WAS
17 AUGUST. 1973.
13 @. AND THEN DID YOU PURSUE FURTHER EDUCATION AT THAT TIME?
19 A. YES. AT THAT TIME, I BECAME VERY INTERESTED IN
20 APPLICATIONS. I DID NOT WANT TO CONTINUE IN THE THEORETICAL
21 VEIN THAT 1 HAD PURSUED UP TO THAT POINT, S00 I ENTERED THE
22 DEPARTMENT OF QUANTITATIVE METHODS AT LOUISIANA STATE
23 UNIVERSITY.
24 @. WHAT WAS THE DIFFERENCE IN THE FOCUS IN THE TWO DEPARTMENTS
235 AT LOUISIANA STATE?
1331
KATZ - DIRECT
1 ‘A. IN THE MATHEMATICS DEPARTMENT. THE FOCUS WAS HIGHLY
2 THEORETICAL MATHEMATICS, TAKING TOFICS TQ HIGHER AND HIGHER
3 LEVELS OF ABSTRACTION.
IN THE QUANTITATIVE METHODS DEPARTMENT, THE EMPHASIS
WAS PARTLY ON THE THEORY, BUT A LOT ON THE APPLICATIONS OF THE
THEORY. MODELING. AND ESPECIALLY IN MODELING BUSINESS PROBLEMS.
@. AND IN DOING YOUR COURSE WORK FOR YOUR PHD, WHAT TYFE OF
COURSE WORK DID YOU DO?
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A. I TOOK THE GENERAL COURSES IN STATISTICS. AND OPERATIONS
10 RESEARCH INCLUDING GRADUATE COURSES; STATISTICAL THEORY ONE AND
i: TWO.
12 TWO COURSES IN EXPERIMENTAL DESIGN AND MULTIPLE
13 REGRESSION: SAMPLING THEORY; SIMULATION. OPERATIONS RESEARCH
14 COURSES. AND POSSIBLY SOME OTHER COURSES.
13 ®@. WHAT, WERE YOU ALSO WORKING UNDER AN ASSISTANTSHIP AT THIS
14 TIME OR SOMETHING OF THAT SORT?
17 A. YES, I WAS A TEACHING ASSISTANT IN THE QUANTITATIVE METHODS
13 DEPARTMENT, AND I WAS TEACHING THE UNDERGRADUATE STATISTICS
Pd 19 COURSES AND OPERATIONS RESEARCH COURSES AT THE TIME.
20 @. AND I PRESUME, I NEGLECTED TO MENTION, BUT I PRESUME YDU DID
21 A THESIS FOR YOUR MASTERS DECREE?
22 A. YES.
23 R. AND IS THAT LISTED ON YOUR VITA?
24 A. YES. IT IS.
23 @. AND DID YOU ALSO THEN DO A DISSERTATION FOR YQUR PHD?
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KATZ - DIRECT
A. YES. I DID. I WORKED UNDER PROFESSOR ROGER BURFORD AND MY
DISSERTATION TITLE IS "THE INSENSITIVITY OF LEONTIEF,
L-E-0-N-T-I-E-F, MULTIPLIERS TO RANDOM INPUT OUTPUT MATRICES
WITH FIXED COLUMNS ZONES."
@. AND WAS A PORTION OF THIS WORK LATER PUBLISHED?
A. YES.
I HAVE CONTINUED THE RESEARCH IN THIS AREA AND IM
USING STATISTICAL METHODS TO DEVELOP SHORTCUT FORMULAS FOR THESE
INPUT OUTPUT MULTIPLIERS. AND I“M CONTINUING IN THIS RESEARCH
WITH PROFESSOR BURFORD.
@. AND WAS THAT PUBLISHED AFTER YOU DID FURTHER RESEARCH ON
THAT WORK? |
A. YES.
@. AND IS THAT ONE OF THE PUBLICATIONS LISTED IN YOUR VITA?
A. YES. A SERIES OF PUBLICATIONS DEALING WITH THIS TOPIC ARE
LISTED IN MY VITA.
@. DID YOU DO ANY RESEARCH WORK OF ANY KIND WHILE YOU WERE
WORKING ON YOUR PHD OR YOUR MASTERS DEGREE?
A. OTHER THAN FOR MY DISSERTATION?
2. YES?
A. 1 DID DO SOME WORK DEALING WITH ANALYSIS OF DATA FOR
PROFESSOR BURFORD DURING MY TIME AS A GRADUATE STUDENT IN
QUANTATIVE METHODS DEPARTMENT.
AND I SPENT A LOT OF TIME DISCUSSING THINGS,
STATISTICAL QUESTIONS WITH PROFESSOR BURFORD.
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1353
KATZ - DIRECT
'@. AFTER YOU RECEIVED YOUR FHD, WHAT COURSE DID YOU PURSUE IN
YOUR CAREER AT THAT TIME?
A. AFTER I RECEIVED MY PHD, I STAYED AT LOUISIANA STATE
UNIVERSITY FOR ONE YEAR AS AN ASSISTANT FROFESSOR.
R. WHAT DID YOU TEACH?
A. I TAUGHT COURSES IN STATISTICAL. BASIC STATISTICS. AND
OPERATIONS RESEARCH, CALCULUS, THEORY OF LINEAR PROGRAMMING. AND
INTRODUCTION TO OPERATIONS RESEARCH. A GRADUATE COURSE FOR MBA
STUDENTS.
@. AND AFTER YOU TAUGHT FOR THAT ONE YEAR. WHAT DID YOU DO?
A. THEN I MOVED TO THE UNIVERSITY OF ARIZONA, WHERE I BECAME
ASSISTANT PROFESSOR IN THE DEPARTMENT OF MANAGEMENT.
@. DEPARTMENT OF MANAGEMENT?
A. YES. THAT“S WHERE THE STATISTICS COURSES WERE LOCATED AT
THAT TIME.
@. WHAT COURSES WERE YOU TEACHING? WHAT WAS THE NATURE OF THE
COURSES YOU WERE TEACHING?
A. AGAIN I WAS TEACHING STATISTICS COURSES FOR THE
UNDERGRADUATE AND FOR THE GRADUATE MBA COURSES.
QR. DID YOU DO ANY OUTSIDE RESEARCH DURING YOUR TIME AT ARIZONA?
A. YES, I PURSUED THE COURSE OF MY RESEARCH IN SHORTCUT
MULTIPLIER FORMULAS. AND HAD SOME PUBLICATIONS AT THIS TIME.
R. WERE ANY OF THOSE PUBLICATIONS IN REFEREED JOURNALS?
A. YES, AND THEYRE LISTED ON MY VITA.
@. AFTER YOU COMFLETED YOUR, AFTER YOU LEFT THE UNIVERSITY OF
KATZ - DIRECT
1 | ARIZONA, DID YOU THEN MOVE TO YOUR PRESENT PLACE OF EMPLOYMENT?
2 A. YES, I DID.
3 @. AND COULD YOU JUST BRIEFLY TELL US WHAT YOUR DUTIES HAVE
4 BEEN SINCE BECOMING ASSOCIATED WITH GEORGIA STATE UNIVERSITY?
>] A. AT GEDRGIA STATE UNIVERSITY. MY. IVE TAUGHT COURSES IN
1) SAMPLING, IN STATISTICAL THEORY ONE AND TWO, MATHEMATICAL TOOLS
7 FOR STATISTICS, AND ALSO THE GRADUATE MATH COURSE FOR MBA’S.
8 MOST OF THESE COURSES DEAL WITH MULTIPLE REGRESSION, AND I
2 TAUGHT THAT MANY TIMES.
10 I AM ALSO COORDINATOR OF THE UNDERGRADUATE STATISTICS
11 COURSES, THERE ARE TWO COURSES WHICH I COORDINATE. AND IVE BEEN
12 ASSOCIATED WITH REFEREEING ARTICLES FOR JOURNALS. ANNALS OF
13 REGIONAL SCIENCE, WHICH IS THE JOURNAL I PUBLISH IN, AND I HAVE
14 BEEN ASSOCIATED WITH A PHD STUDENT. MEMBER OF THEIR COMMITTEE AS
15 THE STATISTICAL CONSULTANT.
16 RQ. SO YOU, YOU SAY YOUVE WORKED WITH PHD STUDENTS?
13 Q. WAS THAT AS PART OF A DISSERTATION COMMITTEE?
w 19 A. YES.
20 @. AND WHAT WAS YOUR EXPERTISE IN SITTING ON THAT COMMITTEE?
21 A. IN THE METHODOLOGY. THE STATISTICAL METHODOLOGY THAT WAS
22 USED IN THE DISSERTATION.
23 @. DOCTOR KATZ, DO YOU BELONG TO ANY PROFESSIONAL ASSOCIATIONS
24 AT THIS TIME?
2% A. YES, I DO. I BELONG TO THE AMERICAN STATISTICAL
KATZ - FOIR DIRE
1 ASSOCIATION. THE AMERICAN INSTITUTE OF DECISION SCIENCES WHICH
2 1S ACTUALLY HOUSED IN THE QUANTITATIVE METHODS DEPARTMENT AT
3 GEORGIA STATE. THE INSTITUTE OF MANAGEMENT SCIENCE, AND THREE
‘REGIONAL SCIENCE ASSOCIATIONS.
@. I BELIEVE YOU MENTIONED SOMETHING ABOUT REFEREEING JOURNAL
3
S
4 6 ARTICLES.
7 WHAT WAS THE NATURE OF SOME OF THOSE ARTICLES. OR HOW
8 WERE YOU CONTACTED TO REFEREE THOSE ARTICLES?
9 A. WELL, THEY WERE SENT TO ME FOR MY BACKGROUND INPUT AND
10 OUTPUT MODELS, AND MY STATISTICAL BACKGROUND. THOSE ARTICLES
11 WERE BOTH INPUT-OUTPUT MODEL ARTICLES, PLUS STATISTICS.
12 MS. WESTMORELAND: YOUR HONOR, AT THIS TIME, I WOULD
13 LIKE TO INTRODUCE RESPONDENTS EXHIBIT NUMBER 16 INTO EVIDENCE
14 WHICH DOCTOR KATZ HAS IDENTIFIED AS HIS VITA.
13 MR. FORD: YOUR HONOR, -—-—
1& MS. WESTMORELAND: I BELIEVE WE“VE SUPPLIED A COPY
17 ALREADY.
13 MR. FORD: NO OBJECTION, YOUR HONOR.
w 19 THE COURT: ALL RIGHT.
20 | MS. WESTMORELAND: AT THIS TIME, WE WOULD SUBMIT DOCTOR
21 KATZ AS AN EXPERT IN THE AREAS OF RESEARCH DESIGN. ANALYZING
22 DATA, STATISTICAL ANALYSES. STATISTICS AND QUANTITATIVE METHODS.
23 THE COURT: DO YOU WISH TO VOIR DIRE. MR. BOGER?
24 MR. FORD: MAY I VOIR DIRE. YOUR HONOR?
23 VOIR DIRE EXAMINATION
1356
KATZ - FOIR DIRE
BY MR. FORD:
9. DOCTOR KATZ. AS I UNDERSTAND IT. YOU ARE A STATISTICAL
EXPERT. IS THAT RIGHT?
A. YES.
8. AND THAT MEANS YOU‘RE TRAINED TO ANALYZE DATA. IS THAT FAIR?
A. YES,
a. AND SPECIFICALLY. THE KINDS OF DATA THAT YOU DEAL WITH ARE
PRIMARILY IN THIS AREA OF WHAT’S CALLED OPERATIONS RESEARCH, IS
THAT RIGHT?
A. OPERATIONS RESEARCH IS AN AREA OF ANALYSIS. ITS, IT USES
STATISTICAL TECHNIQUES. I PROBABLY WOULD SAY THE TYPE OF DATA
1M USED TO 1S DATA DEALING WITH BUSINESS SITUATIONS.
G0. YOU DON’T HAVE ANY TRAINING IN THE LEGAL AREA, AT ALL. IS
THAT RIGHT?
A. NO, I DON’T.
Q. OR SOCIAL SCIENCE AS SUCH?
A. WELL. I BELIEVE I HAD AN UNDERGRADUATE COURSE IN SOCIOLOGY.
Q. THAT WAS THE INTRODUCTORY UNDERGRADUATE COURSE. IS THAT
RIGHT?
A. YES.
@. BUT NOTHING SINCE THAT TIME, IS THAT CORRECT?
A. CORRECT.
Q. AND NOTHING IN POLITICAL SCIENCE ON THE GRADUATE LEVEL?
A. THATS CORRECT.
@. AND NOTHING IN CRIMINAL JUSTICE. OR —-—
KATZ - FOIR DIRE
1 A. THATS CORRECT.
2 @. —— CRIMINAL LAW?
3 AND SPECIFICALLY IN CAPITAL PUNISHMENT COURSES?
4 A. CORRECT.
bo R. NO COURSE WORK THERE.
i 6 HAVE YOU EVER TESTIFIED AS AN EXPERT BEFORE?
7 ‘A. ND, I HAVEN'T.
8 @. HAVE YOU EVER BEEN QUALIFIED AS AN EXPERT WITNESS IN ANY
4 COURT?
10 A. NO.
13 QR. AS I TAKE IT. THEN. YOU DON’T PURPORT TO HAVE ANY EXPERTISE
12 IN THE AREA OF CRIMINAL JUSTICE OR CRIMINOLOGY, IS THAT RIGHT?
13 A. THAT’S CORRECT.
14 @. IN FACT. YOUR EXPERIENCE AND KNOWLEDGE OF THAT AREA IS
13 LIMITED TO WHAT'S BEEN CONVEYED TO YOU BY THE LAWYERS IN THIS
146 CASE, ISN‘T THAT CORRECT?
17 A. PLUS WHAT I READ FROM PROFESSOR BALDUS‘ REPORTS.
13 @. AS I UNDERSTAND IT. YOUR ELEMENTARY AND SECONDARY EDUCATION
& 19 WAS IN CANADA. WHICH IS YOUR --
21 @. S0 YOU DIDN‘T HAVE, EVEN AT THE HIGH SCHOOL LEVEL, CIVICS
22 COURSES OR ANYTHING LIKE THAT IN AMERICAN GOVERNMENT --
22 A. NO. I DIDNT.
2 R. == OR ANYTHING LIKE THAT.
23 A. NO.
KATZ - FOIR DIRE
1 '@. WITH REGARD TO AMERICAN HISTORY, OR THE HISTORY OF RACE
2 RELATIONS, HAVE YOU EVER HAD ANY COURSE WORK IN THAT?
3 A I HAVEN‘T HAD A COURSE IN AMERICAN HISTORY. I HAVE HAD
4 COURSES IN WORLD HISTORY. WHERE AMERICAN HISTORY WAS PART OF IT,
S BUT NOTHING SPECIFIC ABOUT RACE RELATIONS.
é @. IS THAT LIKE AT THE COLLEGE LEVEL OR WHAT LEVEL?
7 A. AT THE COLLEGE LEVEL AND HIGH SCHOOL LEVEL.
8 @. WITH REGARD TO YOUR ASSOCIATIONS, YOU‘RE NOT A MEMBER OF THE
? LAW AND SOCIETY ASSOCIATION, ARE YOU?
10 A. NO,
11 @. OR THE AMERICAN SOCIETY OF CRIMINOLOGY?
12 A. NO.
13 @. OR THE OPERATIONS RESEARCH SOCIETY?
14 A. NO, 13 @. OR THE ECONOMETRICS SOCIETY?
146 ‘A. NO.
17 @. OR THE AMERICAN SOCIAL SCIENCE ASSOCIATION?
18 A. NO.
“ 19 @. OR THE AMERICAN ECONOMICS ASSOCIATION, IS THAT RIGHT?
20 A. RIGHT.
21 @. NOW, YOU ARE A MEMBER OF THE AMERICAN STATISTICAL
22 ASSOCIATION, IS THAT CORRECT?
23 A. YES.
28 QR. WHAT’S REQUIRED FOR THAT MEMBERSHIP?
23 A. TO BE A MEMBER OF THE AMERICAN STATISTICAL ASSOCIATION, YOU
13359
KATZ - FOIR DIRE |
i
‘MUST BE SPONSORED BY ANOTHER MEMBER OF THE AMERICAN STATISTICAL
T
y
2 ASSOCIATION.
3 a. AND IS THAT ASSOCIATION MADE UP PRIMARILY OF PEOPLE WHO HAVE
GRADUATE LEVEL DEGREES IN STATISTICS AREAS?
‘A. I WOULD IMAGINE S0. I DON‘T KNOW SPECIFICALLY WHAT THE
REQUIREMENTS ARE. I DON’T KNOW WHAT THE DISTRIBUTION OF THE
3
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6
7 DEGREES ARE IN THE SOCIETY.
8 1R« HAVE You PARTICIPATED IN ANY PROCEEDINGS OF THE AMERICAN
¢ STATISTICAL ASSOCIATION THAT HAVE ANYTHING TO Do WITH THE KINDS
0 OF STUDIES THAT ARE INVOLVED IN THIS CASE?
11 A. YOU MEAN LEGAL STUDIES?
12 RA. SOCIAL SCIENCE OR ANYTHING LIKE THAT?
13 A. NO.
14 @. AND DID YOU ATTEND A MEETING OF THE AMERICAN STATISTICAL
13 ASSOCIATION DIVISION ON LAW AND JUSTICE STATISTICS IN TORONTO
16 THIS WEEKEND?
17 A. NO, I DIDN'T.
1& @. DO YOU READ THE AMERICAN STATISTICAL ASSOCIATION JOURNAL?
W 19 A. I READ THE AMERICAN STATISTICIAN.
20 @. AND YOU READ IT ALL. OR DO YOU READ JUST THOSE FARTS THAT
23 ARE IN YOUR AREAS OF INTEREST.
22 A. JUST THOSE PARTS THAT ARE IN MY AREAS OF INTEREST.
23 @. DID YOU HAPPEN TO READ PROFESSOR RICHARD BERK”S ARTICLE ON
24 ANALYZING SOCIAL EXPERIMENTS THAT WAS IN THE MARCH EDITION THIS
23 | YEAR?
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KATZ - FQIR DIRE
A. NO.
@. NOW, I NOTICED ON YOUR VITA, IS YOUR VITA, THAT IS CORRECT
AND COMPLETE AND UP TO DATE. IS THAT RIGHT?
A. AS FAR AS I KNOW. YES.
@. YOU’VE GIVEN SOME PRESENTATIONS AT DIFFERENT, I BELIEVE,
REGIONAL SCIENCE MEETINGS. IS THAT RIGHT?
A. YES.
R. WERE THOSE INVITED PRESENTATIONS?
A. YOU MEAN, YOU’RE MAKING A DISTINCTION BETWEEN INVITED AND
CONTRIBUTED?
&@. YES?
A. SOME WERE INVITED. I THINK ONE WAS INVITED.
@. WHICH ONE WAS THAT?
A. THE ONE IN AUSTRALIA.
'@. WAS THAT WITH DOCTOR BURFORD?
A. YES.
a. HAVE YOU EVER GIVEN ANY PRESENTATIONS, EITHER INVITED OR
CONTRIBUTED, ALONE?
AR. YES.
@. IS THAT LISTED IN YOUR VITA?
A. EXCUSE ME, BY ALONE, DO YOU MEAN IF I MADE THE ACTUAL
RE SENTATION, DR ~~
@. NO. I MEAN WHERE YOU WERE THE SOLE AUTHOR OF THE WORK THAT
WAS BEING PRESENTED?
A. I WOULD HAVE TO CHECK MY VITA.
1361
KATZ — FOIR DIRE
'@. WOULD YOIJ PLEASE?
A. ACCORDING TO MY VITA, I HAVEN’T MADE ANY PRESENTATIONS WHERE
I WAS THE SOLE AUTHOR.
@. NOW. AM I CORRECT IN INFERRING FROM READING YOUR VITA THAT A
NUMBER OF THE PRESENTATIONS INVOLVED ESSENTIALLY THE SAME
MATERIAL THAT WAS INVOLVED IN SOME OF THE PUBLICATIONS THAT ARE
LISTED IN YOUR VITA, IS THAT RIGHT?
A. YES.
@. AND THE JOURNALS IN WHICH THOSE PUBLICATIONS APPEAR. THEY
ALL RELATE REGIONAL SCIENCE? ARE THOSE ALL REGIONAL SCIENCE
JOURNALS?
A. YES.
@. ASIDE FROM YOUR MEMBERSHIP IN THE COMPUTER SCIENCE
FRATERNITY AS AN UNDERGRADUATE. HAVE YOU RECEIVED ANY ACADEMIC
HONORS AT ALL. AT ANY STAGE OF YOUR EDUCATION?
A. NO.
@. WITH REGARD TO THE QUESTION OF CRIMINAL JUSTICE. HAVE YOU
EVER PARTICIPATED IN OR DONE ANY RESEARCH IN THAT AREA AT ALL
BEFORE WHATEVER INVOLVEMENT YOU-“VE HAD IN THIS CASE?
A. NO.
@. HAVE YOU EVER WRITTEN ANYTHING AT ALL?
A. BEFORE THIS CASE?
A. NO.
@. TAUGHT ANY COURSES IN THAT AREA?
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KATZ - FOIR DIRE
A. NO.
@. DO YOU READ THE JOURNALS THAT ARE PUBLISHED IN THAT AREA?
A. IN THE AREA OF CRIMINAL JUSTICE?
Q. CRIMINAL JUSTICE OR SOCIAL PROBLEMS RELATED TO CRIMINAL
JUSTICE?
A. NO. I DONT.
MR. FORD: IF I MAY APPROACH THE WITNESS. YOUR HONOR.
BY MR. FORD:
@. CALLING YOUR ATTENTION TO THE EXHIBIT MARKED AND ADMITTED AS
DB-113 WHICH IS A BIBLIOGRAPHY OF, I BELIEVE. 102 DOCUMENTS
PREVIOUSLY TESTIFIED TO BY DOCTOR. PROFESSOR BALDUS, IF I COULD
FIRST ASK YOU, DOCTOR KATZ, YOU’VE BEEN IN COURT AT COUNSEL
TABLE THE ENTIRE, THROUGH THE ENTIRE COURSE OF THIS PROCEEDING,
IS THAT CORRECT?
A. YES.
@. AND YOU HEARD PROFESSOR BALDUS” ENTIRE TESTIMONY?
A. YES.
?. COULD YOU REVIEW THAT BIBLIOGRAPHY BRIEFLY AND SEE IF THERE
ARE ANY ENTRIES IN THAT THAT YOU RECOGNIZE HAVING READ?
A. I ONLY RECOGNIZE THREE.
@. WHAT WOULD THOSE BE?
A. ITEM 3, BALDUS, D. AND COLE. J., STATISTICAL PROOF OF
DISCRIMINATION.
4, BALDUS, PULASKI, WOODWORTH AND KYLE. IDENTIFYING
|
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COMPARATIVELY EXCESSIVE SENTENCES OF DEATH.
1363
KATZ - FOIR DIRE
1 | AND BOWERS AND PIERCE. ARBITRARINESS AND DISCRIMINATION
2 UNDER POST-FURMAN CAPITAL STATUTE, CRIME AND DELIQUENCY. 5&3.
3 @. AND WITH REGARD TO THOSE 3 ARTICLES. DID YQU READ THOSE IN
CONNECTION WITH YOUR PREPARATION FOR TESTIMONY IN THIS CASE?
A. YES.
@. AND DO YOU RECALL WHEN IT WAS THAT YOU READ THE BOWERS AND
PIERCE ARTICLE? |
A. I BELIEVE I READ IT IN ITS ENTIRETY APPROXIMATELY DECEMBER,
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1982, AND I HAVE REFERRED TO IT OCCASIONALLY SINCE THEN.
10 @. HAVE YOU BEEN PRESENTED IN THE COURSE OF THIS LITIGATION
11 WITH A DRAFT PAPER, PREPARED BY SAMUEL GROSS AND ROBERT MORROW
12 FROM F.B.I. UNIFORM CRIME REPORTS STATISTICS, RELATING TO
13 THE QUESTIONS OF RACIAL DISCRIMINATION IN THE STATE OF GEORGIA
14 AND ELSEWHERE?
15 A. NO.
146 Q. YOU VE NOT SEEN THAT?
17 A. I HAVE SEEN IT BUT I“VE NOT BEEN GIVEN IT.
13 @. WHERE HAVE YOU SEEN THAT?
W 19 A. WITH MS. WESTMORELAND“S OTHER DOCUMENTS.
20 @. YOU SAW IT IN MS. WESTMORELAND’S POSSESSION?
23 A. YES.
22 @. DO YOU RECALL WHEN THAT WAS, THE FIRST TIME?
23 A. APPROXIMATELY A WEEK OR TWO AGO,
24 BH. BUT YOU HAVE NEVER READ IT?
23 A. NO.
146
13464
KATZ - FOIR DIRE
RR. DID YOU ASK TO READ IT AT ANY TIME?
A. WELL, I ASKED IF I WAS GOING TO BE GIVEN IT TO BE READ. AND,
BUT THATS -—-
@. THAT DIDNT OCCUR?
A. RIGHT.
Q. I”M SHOWING YOU DOCUMENT THATS BEEN MARKED JK NUMBER ONE.
XEROX OF A PAPER, VOLUME ONE, RESEARCH ON SENTENCING. SEARCH FOR
REFORM.
DO YOU RECOGNIZE WHAT THAT I37
A. NO.
@. HAVE YOU EVER READ OR BEEN MADE AWARE OF A NATIONAL ACADEMY
OF SCIENCES REVIEW OF THE AVAILABLE LITERATURE AND RESEARCH ON
SENTENCING ISSUES IN THE CRIMINAL JUSTICE AREA?
A. NO.
|
a. CALLING YOUR ATTENTION TO THE SECOND PAGE OF THAT SET OF
XEROX COPIES, PERHAPS THE THIRD PAGE. I°M SORRY. DO YOU FIND A
BIBLIOGRAPHY OF DOCUMENTS THERE?
4. ves.
2. AM I CORRECT FROM THE PREVIOUS QUESTION THAT YOU RECOGNIZE
DOCUMENTS PRIMARILY BY AUTHOR? THATS, WOULD IT, I‘M JUST
ASKING, I GUESS, IS IT POSSIBLE FOR YOU TO BRIEFLY REVIEW THAT
NUMBER OF PAGES THERE AND SEE IF THERES ANY DOCUMENTS IN THAT
AREA DR IN THAT LIST THAT YOU FIND THAT YOU“VE READ?
A. OKAY.
THE COURT: WHERE ARE WE GOING, MR. FORD, AND WHY?
KATZ - FOIR DIRE
MR. FORD: I-M TRYING TO ESTABLISH THE SCOPE OF DOCTOR
KATZ’ EXPERTISE, YOUR HONOR. AND THE. RAISING THE QUESTION oF
WHETHER OR NOT. TD —— THE EXTENT TO WHICH HE’S QUALIFIED TO
ANALYZE THE METHODOLOGY AND THE RESULTS IN THIS CASE.
THE COURT: I DON‘T UNDERSTAND THAT SHES TRIED TO
QUALIFY HIM AS A SOCIAL SCIENTIST OR A LAWYER. SHE’S SOUGHT TO
QUALIFY HIM AS A STATISTICIAN.
HE’S GOT MORE TRAINING THAN I DO, AND I‘M GOING TO
QUALIFY HIM. SO YOU MIGHT AS WELL GO AHEAD AND DQ IT. I“VE HAD
A GOOD NUMBER OF STATISTICS COURSES. BUT HE“S HAD MORE THAN I
HAVE, AND I“M GOING TO LET HIM TESTIFY.
MR. FORD: THANK YOU, YOUR HONOR. SINCE THE DOCTOR HAS
HAD A CHANCE TO REVIEW THE DOCUMENT, MAY I ASK HIM IF HE
RECOGNIZED ANY ENTRIES IN THAT?
THE WITNESS: I RECOGNIZE THE BOWERS AND PIERCE
ARTICLE. AND I RECOGNIZE A FEW ECONOMETRIC AND STATISTICAL TEXTS
THAT I1-“VE REFERRED TO.
THE COURT: WHAT I’M TRYING TO DEMONSTRATE. MR. FORD.
LET ME SEE IF I CAN BE TEMPERATE. I HEARD BOWERS AND PIERCE
TESTIFY. AND IF THEY’RE SUPPOSED TO BE EXPERTS IN THE FIELD ON
WHICH ONE REGULARLY RELIES AND HE HASNT RELIED ON THEM, I
CONSIDER HIM FAR AHEAD OF THE GAME. THAT WAS ACADEMICALLY THE
MOST DISHONEST PRESENTATION I EVER HEARD IN MY LIFE.
NOW. I DON’T KNOW WHAT SORT OF GAME WE-RE PLAYING.
HES OBVIOUSLY QUALIFIED, AND YOUR MAN IS OLDER AND MORE
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| 1366
| KATZ - FOIR DIRE
|
EXPERIENCED THAN HE IS, AND IVE GOT THE POINT.
LETS GO AHEAD AND MOVE ON WITH THE CASE.
MR. FORD: I DIDN‘T INTEND TO TAKE SO MUCH TIME. YOUR
HONOR.
FOR THE RECORD, YOUR HONOR, COULD I OFFER JK-1 AT THIS
TIME?
THE COURT: SURE.
MS. WESTMORELAND: YOUR HONOR, I WILL OBJECT TQ THE
ADMISSION OF THE ARTICLE. I DON’T SEE THE RELEVANCY.
THE COURT: LET ME SEE IT, COUNSEL.
FOR WHAT PURPOSE DO YOU OFFER IT? ALL THIS IS IS
REFERENCES. IT’S NOT EVEN AN ARTICLE.
MR. FORD: NO. YOUR HONOR, IT IS A LIST OF REFERENCES
WHICH DO, I THINK, BEAR DIRECTLY ON THIS AREA. AND AGAIN, IT IS.
THE QUESTION BEFORE THE COURT. AS I UNDERSTAND, ON VOIR DIRE. IS
NOT ONLY THE, WHETHER THE INDIVIDUAL IS AN EXPERT, BUT THE SCOPE
OF HIS EXPERTISE. AND I THINK THAT MAY BE A CRITICAL QUESTION
THE COURT HAS TO CONFRONT ON THIS, AND THAT’S WHAT THIS GOES TO.
THE COURT: WHAT DOES THIS PROVE?
MR. FORD: AS I UNDERSTAND IT. DOCTOR KATZ” ARTICLE
PROVES THAT HE, OUT OF THAT LONG LIST OF DOCUMENTS, HAS READ THE
BOWERS AND PIERCE ARTICLE, AND I BELIEVE HE SAID ECONOMETRIC AND
STATISTICAL ENTRIES. A FEW OF THEM. BUT THAT HE IS NOT FAMILIAR
WITH THE REST OF THAT LITERATURE.
THE COURT: WHAT EVIDENCE IS THERE THAT HE SHOULD BE?
——— Se——————_ p—— S——ti——— ————— \p———. F_———————— ——— T————— ———T———— —— ———— T—————————— ———" ————————
KATZ - FOIR DIRE
1 | MR. FORD: I GUESS ALL I CAN SAY AT THIS TIME. YOUR
2 HONOR, IS THAT WE HAVE A REPORT FROM DOCTOR KATZ WHICH APPEARS
TO US TO GO SOMEWHAT BEYOND THE NARROW AREA IN WHICH HE MAY HAVE
EXPERTISE IN TERMS OF THE MANIPULATION OF DATA. AND WE ARE
CONCERNED ABOUT THE SPECIFIC SCOPE OF HIS EXPERTISE IN THOSE
3
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5
A & AREAS IN WHICH IT GOES BEYOND THAT.
7 THE COURT: WELL, TO THE EXTENT HE GETS BEYOND BEING A
& STATISTICIAN ILL BE GLAD TO HEAR FROM YOU SPECIFICALLY ON THE
9 SUBJECT.
10 I DON’T SEE ANYTHING, THERE IS NOTHING WHICH SAYS THIS
31 1S REQUIRED READING FOR ANYBODY THATS GOING TO HAVE TO TESTIFY.
12 LOOKING AT SOME OF THE SOURCES, THEY/RE ENTIRELY NEUTRAL. HAVE
12 YOU READ THE F.B.I. UNIFORM CRIME REPORTS, LATELY. OTHERS MIGHT
14 BE POLITELY DESCRIBED AS ADVERSARIAL, OTHERS ARE REMOTELY
15 RELATED TO THE SUBJECT. OTHERS I RECOGNIZE AS BEING OUTSTANDING
16 TREATISES ON THE SUBJECT WHICH YDUR EXPERT HAD NOT READ, I
17 HAFPEN TO HAVE READ, S0 I THINK IT’S AN OUTSTANDING EXPERT, YOU
13 KNOW.
ww 19 BUT WHAT I“M SAYING IS, FOR THE PURPOSES OF BEING A
20 STATISTICIAN, I DON’T KNOW THAT HE HAD TO HAVE READ THESE ANY
21 MORE THAN DOCTOR WOOLWORTH HAD TO HAVE READ THEM. IF SHE'S
22 PUTTING HIM ON TO BE A SOCIAL SCIENTIST, I AGREE: HE AIN‘T
23 QUALIFIED.
24 MR. FORD: COULD I HAVE A MOMENT, YOUR HONOR?
23 PERHAPS THEN, IF I COULD TURN TO THE QUESTION OF
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"KATZ - FOIR DIRE
STATISTICAL ANALYSIS AND SOME SPECIFICS THEREIN. AS TO DOCTOR
KATZ.
THE COURT: LET ME MAKE SURE I UNDERSTAND MS.
WESTMORELAND.
I UNDERSTAND THAT HE IS YOUR COUNTERPART TO DOCTOR. 1
MS. WESTMORELAND: WOODWORTH.
THE COURT: WOODWORTH. HE IS YOUR COUNTERPART TO
DOCTOR WOODWORTH.
MS. WESTMORELAND: THATS CORRECT.
THE COURT: HE DOES NOT CLAIM TO HAVE ANY EXPERTISE IN
CRIMINAL JUSTICE OR SOCIAL SCIENCE WHICH WOULD ALLOW HIM TO BE
ABLE TO ADD ANY DIMENSIONS TO RAW DATA IN THOSE FIELDS BEYOND WHA]
ANY STATISTICIAN WOULD BE, PERHAPS BE ABLE TO DO BY VIRTUE OF
TRAINING AS A STATISTICIAN, IS THAT RIGHT?
MS. WESTMORELAND: THAT WOULD BE CORRECT, YOUR HONOR.
MR. FORD: YOUR HONOR, =--
THE COURT: TO THE EXTENT THAT THAT’S WHAT SHE'S
OFFERING HIM FOR, SOME OF WHAT YOU“VE BEEN ASKING DOESN‘T SEEM
TO 00 TO IT.
TO THE EXTENT THAT YOU THINK SHE’S OFFERING HIM FOR
MORE THAN THAT, I HAVEN'T HEARD ANYTHING TO MAKE ME BELIEVE THAT
HES AN EXPERT IN MORE THAN THAT. AND AGREE HES NOT QUALIFIED
TO GIVE HIS OPINIONS IN MORE THAN THAT. BUT I DON‘T UNDERSTAND
THAT HE INTENDS TO.
136%
KATZ - FOIR DIRE
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AS I TOLD MR. BOGER THE OTHER DAY, LET“S MOVE ON. I
CAN READ A CURRICULUM VITA BUT 1 AM MORE IMPRESSED ON THE BASIS
OF WHAT HE SAYS AND WHY HE SAYS IT THAN WHAT HE HAS ACCOMPLISHED
IN THE GREAT GAME OF ACADEMIA.
MR. FORD: I BELIEVE I UNDERSTAND THE COURT“3 RULING.
1 GUESS ANY OF THE REMAINDER OF MY QUESTIONS THEN WOULD GO TO
WEIGHT.
THE COURT: YOU MAY EXAMINE HIM TO THE EXTENT THAT YOU
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FEEL IS NECESSARY TO DEMONSTRATE TO ME I SHOULD NOT TRUST HIS
10 JUDGMENT IN THE AREA OF STATISTICS.
11 MR. FORD: I THINK I CAN FOCUS IN ON THAT, YOUR HONOR.
12 BY MR. FDRD:
13 @. WITH REGARD TO THE RESEARCH DESIGN QUESTIONS, DOCTOR KATZ.
14 AM I CORRECT IN UNDERSTANDING THAT THE ONLY TWO COURSES THAT YOU
13 HAVE TAKEN IN THAT AREA WERE IN THE QUANTITATIVE METHODS
146 DEFARTMENT AT THE LOUISIANA STATE UNIVERSITY, IS THAT RIGHT?
17 A. THAT’S A DIFFICULT QUESTION TO ANSWER, BECAUSE MANY OF THE
18 COURSES DEAL WITH RESEARCH DESIGN STATISTICAL ANALYSIS. ITS,
w 17 THOSE TWO COURSES FOCUSED PRIMARILY ON THAT.
20 BUT IN OTHER COURSES, THOSE TOPICS CAME UP.
21 @. PERHAPS WE SHOULD MAYBE FOCUS SOMEWHAT ON WHAT WERE TALKING
22 ABOUT ON RESEARCH DESIGN.
23 IS IT FAIR TO SAY THERE“S ONE PART OF RESEARCH DESIGN
24 WHICH IS SETTING UP A STUDY AND GATHERING DATA, AND THERE’S
25 ANOTHER PART OF RESEARCH DESIGN WHICH IS SETTING UP AT LEAST
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KATZ - FCIR DIRE
WITHIN STATISTICS. A MODEL BY WHICH TO ANALYZE THE DATA? IS
THAT A FAIR DIVISION?
A. WELL, YOU CAN DIVIDE IT THAT WAY, BUT WE USUALLY LIKE TO
THINK OF IT AS ONE BIG PACKAGE, BECAUSE THE WAY YOU DESIGN THE
EXPERIMENT WILL AFFECT THE WAY YOU CAN ANALYZE THE
EXPERIMENT. ° :
Q. HAVE YOU HAD ANY COURSES THAT DEALT WITH THE QUESTION OF HOW
TO GATHER THE DATA IN THE CONTEXT OF A SOCIAL SCIENCE PROBLEM
RATHER THAN A BUSINESS PROBLEM OR AN ECONOMICS PROBLEM?
A. MY SAMPLING COURSE WAS IN TERMS OF BUSINESS PROBLEMS.
THE COURT: THAT COVERS A MULTITUDE OF SIN. I DON'T
KNOW, I DO NOT NOW REMEMBER THE PROPER TERMINOLOGY. BUT IT
OCCURS TO ME THAT ONE KIND OF PROBLEM IS PRESENTED IN SAMPLING
NUMERICAL DATA AND ANOTHER KIND OF PROBLEM IS. PRESENTED IN
SAMPLING HUMAN ACTION.
AND DO YOU MEAN THAT YOU DID A RANDOM SAMPLE OF
NUMERICAL RESULTS ON A BALANCE SHEET OR A PROFIT AND LOSS
STATEMENT, OR IN LABOR RELATIONS CONTEXT. AND MADE SOME
JUDGMENTS BASED ON NUMERICAL RESULTS OR WERE YOU DEALING MORE
WITH THE MORE DIFFICULT TO QUANTIFY HUMAN ACTION SORT OF THING?
THE WITNESS: GENERALLY, THEY WERE NUMERICAL RESULTS
THAT WERE EASY TO QUANTIFY, BUT MAY BE DIFFICULT TO COLLECT.
THEY WEREN“T GENERALLY INFORMATION THAT WAS GATHERED BASED ON
PERSONS” MOTIVES, ALTHOUGH I DID HAVE SOME EXPOSURE TO THOSE
KINDS OF QUESTIONS.
KATZ - FOIR DIRE
PA
Y THE COURT: ALL RIGHT.
2 BY MR. FORD:
3 a. THAT WAS EXPOSURE IN YDUR COURSE WORK?
4 A. YES.
2 '®. AT THE UNDERGRADUATE OR GRADUATE LEVEL?
iB & A. GRADUATE LEVEL.
7 RQ. WAS THAT AGAIN IN THE CONTEXT, BROAD UMBRELLA OF BUSINESS
a AREA. IS THAT CORRECT? |
? A. YES, AND MY ASSOCIATION WITH PROFESSOR BURFORD.
10 @. NOW, HAVE YOU EVER ACTUALLY DESIGNED AN EMPIRICAL STUDY
11 INVOLVING AS THE JUDGE SAID, HUMAN ACTIONS, I BELIEVE WAS THE
12 COURTS PHRASE?
13 THE COURT: THAT MAY NOT BE A TERM OF ART. THATS THE
14 ONLY WAY I KNOW HOW TO DESCRIBE IT.
15 MR. FORD: THAT SUITS ME. YOUR HONOR.
164 THE WITNESS: NO.
17 BY MR. FORD:
13 @. HAVE YOU EVER PARTICIPATED IN THAT KIND OF STUDY?
“ 19 A. No.
20 G@. HAVE YOU EVER GATHERED DATA FOR THAT KIND OF STUDY?
21 A. NO.
23 Q@. HAVE YOU EVER GATHERED DATA FOR ANY KIND OF STUDY AT ALL? |
23 A. YES.
24 QR. WHAT WAS THAT?
25 A. I WORKED WITH PROFESSOR BURFORD ON A PROJECT THAT HE WAS
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KATZ ~ FOIR DIRE
| CONSULTING FOR. FOR A GREYHOUND BUS LINE. AND I COLLECTED
ECONOMIC DATA AND DEVELOPED VARIABLES TO RUN REGRESSIONS.
@. WHERE DID YOU COLLECT THAT ECONOMIC DATA?
A. IN THE LIBRARY. CENSUS DATA.
@. HAVE YOU EVER SUPERVISED THE GATHERING OF DATA FOR THAT KIND
OF RESEARCH OR FOR THE HUMAN ACTION KIND OF RESEARCH BY OTHER
PEOPLE?
A. NO.
@. HAVE YOU EVER TAKEN A COURSE IN MULTIVARIATE ANALYSIS?
A. NO.
@. I BELIEVE YOU INDICATED IN YOUR DIRECT EXAMINATION THAT YOU
HAVE PARTICIPATED IN SOME. OR SUPERVISING SOME PHD OR ADVANCED
DRORER DISSERTATIONS AND BEEN PART OF A PANEL ON THAT. IS THAT
| CORRECT?
@. AND YOUR FOCUS WAS SPECIFICALLY ON THE STATISTICAL ASPECT OF
THAT. IS THAT RIGHT?
@. AND THERE WOULD BE OTHER INDIVIDUALS WHO WOULD DEAL WITH THE
APPLICATION OF THOSE STATISTICS, TO THE SUBSTANTIVE KIND OF
‘PROBLEM OR AREA THAT WAS INVOLVED IN, IS THAT RIGHT?
A. RIGHT.
@. AND INSOFAR AS INTERPRETING THE ULTIMATE SIGNIFICANCE OF THE
DATA, RATHER THAN JUST THE NUMERICAL SIGNIFICANCE, THOSE KIND OF
INDIVIDUALS WOULD BE NECESSARY FOR YOU TO TRANSLATE YOUR
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KATZ —- FOIR DIRE
STATISTICAL EXPERTISE INTO THAT SUBSTANTIVE AREA, IS THAT RIGHT?
A. I“M SORRY, I DON’T UNDERSTAND YOUR QUESTION.
@. IN TERMS OF DRAWING ULTIMATE CONCLUSIONS IN THAT KIND OF
RESEARCH, YOU WOULD NEED A PERSON WHO WAS EXPERT IN THIS
SUBSTANTIVE AREA TO FOCUS THE QUESTIONS REGARDING THE
SUBSTANTIVE AREA SO THAT YOU COULD DQ THE STATISTICAL
MANIPULATIONS ACCORDINGLY. IS THAT FAIR?
A. THAT WOULD DEPEND ON WHAT THE PARTICULAR QUESTIONS WERE. AND
HOW MUCH UNDERSTANDING I HAD OF THE AREA.
@. IF THEY DEALT. SAY, WITH AN AREA THAT WAS OUTSIDE OF YOUR
EXPERTISE IN TERMS OF THE SUBSTANTIATE MATTERS AT ISSUE?
A. GENERALLY WHEN I WAS PART OF THESE COMMITTEES, I LEARNED
ABOUT THE QUESTIONS THAT WERE BEING RESEARCHED. AND DID NOT JUST
DEAL WITH ONE SMALL ASPECT OF THE STUDY, WHICH IS THE
STATISTICS, AND THEN LET IT GO AT THAT.
@. BUT PRIOR TO THIS TIME YOU‘VE NEVER DONE THAT WITH ANY --
NONE OF YOUR REVIEW COMMITTEES HAVE HAD ANYTHING TO DO WITH THE
CRIMINAL JUSTICE AREA. IS THAT RIGHT?
A. THAT’S CORRECT.
R. AND IN TERMS OF YOUR LEARNING IN THE CRIMINAL JUSTICE AREA
AND WITH REGARD TO THIS CASE, THAT’S COME FROM THE ATTORNEYS
YOUVE WORKED WITH IN THIS CASE, IS THAT CORRECT?
A. PARTLY THAT, AND PARTLY THE INFORMATION I-VE GATHERED FROM
THE OUTSIDE READINGS THAT I“VE DONE. AND THE INFORMATION, THE
REPORTS THAT I“VE GOTTEN FROM PROFESSOR BALDUS.
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1374
KATZ - FOIR DIRE
@. BY THE OUTSIDE READINGS. YOU MEAN PROFESSOR BALDUS AND
BOWERS AND PIERCE ARTICLES, IS THAT CORRECT?
A. 1 BELIEVE THERE WAS ANOTHER ARTICLE THAT I READ, BUT I DONT
RECALL ITS TITLE. I THINK IT WAS AUTHORED BY PROFESSOR BALDUS.
MR. FORD: THANK YOU, VERY MUCH.
YOUR HONOR. I GUESS THE COURT’S RULING IS THAT IF, THAT
DOCTOR KATZ IS RUALIFIED AS A STATISTICIAN IN TERMS OF THE
MANIPULATIONS QF DATA AND EVALUATION OF DATA. :
IF THAT’S THE SOLE PROFFER, I DON’T BELIEVE WE HAVE ANY
OBJECTION TO HIS EXPERTISE ON THE ACTUAL ANALYSIS AND THE
PROCESS OF DOING THAT.
WITH REGARD TO THE SHAPING OF RESEARCH. I BELIEVE
COUNSEL’S STATEMENT WAS RESEARCH DESIGN, AND ANYTHING HAVING TO
DO WITH THE CRIMINAL JUSTICE SYSTEM. ANALYZING AND APPLYING DATA
IN THAT AREA, ALONE, WE WOULD OBJECT TO HIS EXPERTISE AND ASK
THAT HE NOT BE QUALIFIED.
THE COURT: WHAT DO YOU SAY ABOUT THAT. MS.
WESTMORELAND?
MS. WESTMORELAND: YOUR HONOR, I THINK THE QUESTION
THATS FOCUSED AT THIS TIME IS NOT A QUESTION OF WHETHER WE RE
DEALING WITH SOCIAL SCIENCE OR WHAT KIND OF FIELD WERE DEALING
WITH.
WERE TALKING ABOUT BASIC FRINCIPLES INVOLVED IN
RESEARCH DESIGN, BASIC PRINCIPLES AND THEORIES INVOLVED. AND
STATISTICAL TECHNIQUES THAT ARE BEING UTILIZED IN ANALYZING DATA
1375
KATZ - FOIR DIRE
1 OF WHATEVER TYPE IT MAY BE.
2 AND GRANTED, SOME OF THE, PERHAPS, LACK OF EXPERIENCE
3 IN SOCIAL SCIENCE MAY GO TO THE WEIGHT OF SOME OF THE TESTIMONY,
4 BUT I THINK IT DOES NOT KEEP HIM FROM BEING QUALIFIED AS AN
ba EXPERT IN THESE PARTICULAR AREAS. BASED ON HIS EDUCATIONAL
& BACKGROUND AND HIS EXPERIENCE AS WELL.
7 THE COURT: WELL, I DON’T KNOW WHAT YOU WANT TO ASK
8 HIM. AND, OF COURSE. THAT’S ALWAYS A TROUBLE IN RULING ON
? SOMETHING LIKE THAT AT THIS FOINT.
10 BUT I THINK I AGREE WITH THE POINT THAT PERHAFS MR.
11 FORD WAS TRYING TO SUGGEST. ALTHOUGH HE MIGHT HAVE BEEN
12 OVERDOING IT A BIT, AND THAT IS THAT THERE ARE DISCRETE PROBLEMS
13 WITH TRYING TO MEASURE HARD TO QUANTIFY DATA. SUCH AS THE SORTS
14 OF THINGS THAT WE“RE DEALING WITH HERE. AS OPPOSED TO DEAL ING
13 WITH AND MANIPULATING DATA THAT’S ALREADY EXPRESSED NUMERICALLY.
146 SOMEBODY IN THIS ROOM COULD PROBABLY TELL ME THE
17 DISTINCTION I’M DRAWING BECAUSE I“M SATISFIED I HAVEN‘T USED THE
18 TERMS OF ART.
el 19 I HAVE DONE BOTH MYSELF, AND I THINK I UNDERSTAND THAT
20 THERE IS A DISTINCT PROBLEM, AND I“M NOT TRYING TO USE MYSELF IN
21 TERMS OF QUALIFYING THE EXPERT AS TD WHETHER HE‘LL HELP ME OR
22 NOT, BECAUSE I REALIZE SOMEBODY ELSE IS GOING TO SEE THIS CASE.
23 BUT THE POINT BEING, I HAVEN’T HEARD HE HAS HAD ANY EXPERIENCE
24 THAT WOULD ENABLE HIM TO COMMENT BY VIRTUE OF COURSE WORK, OR
25 |PRACTICAL WORK ON THE DESIGN OF THE QUESTIONNAIRE, THE
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KATZ - FGIR DIRE
RELIABILITY OF THE DECISIONS THAT ARE SUBJECT TO CRITICISM WHERE
WE TURNED SOFT RESPONSES INTO HARD RESPONSES. A LOT OF OTHER
THINGS THAT WERE DONE IN THIS TO GET SHARP EDGED DATA. I DONT
UNDERSTAND FROM ANYTHING THAT YOU’VE PUT ON OR THAT MR. FORD”S
DEVELOPED THAT HE“S HAD ANY EXPERIENCE IN ANY OF THOSE AREAS.
NOW, ONCE WE GET TO COUNTING THE NUMBERS AND TELLING ME
WHAT R-SGUUARE MEANS IN HIS VIEW. AND WHETHER LOGISTIC REGRESSION
ANALYSIS REALLY DOES WHAT DOCTOR WOODWORTH SAYS, I WOULD BE GLAD
TO HEAR FROM HIM BECAUSE I HAVE NO KNOWLEDGE OR EXPERTISE IN ;
THOSE SUBJECTS AND I“M SATISFIED IF HE KNOWS ANYTHING HE
PROBABLY KNOWS A LITTLE BIT MORE THAN I DO.
BUT I AM NOT SURE THAT I COULD QUALIFY HIM, BUT I DONT
KNOW WHAT YOU WANT TO ASK HIM ABOUT RESEARCH DESIGN.
MS. WESTMORELAND: YOUR HONOR, MY BASIC PURPOSE IS A
GENERAL FOCUS ON GENERAL PRINCIPLES INVOLVED IN THE
GUESTIONNAIRE DESIGN, WITH, NOT NECESSARILY FOCUSED EITHER WAY.
THATS NOT THE PURPOSE OF THIS FOCUS. THE FOCUS IS ON
QUESTIONNAIRE DESIGN, DATA GATHERING PROBLEMS THAT MAY RESULT
| THEREFROM AND THEN PRIMARILY WHAT DOCTOR KATZ HAS DONE HAS BEEN
BASED ON THE DATA RECEIVED.
S0 WERE NOT ANALYZING ANYTHING NEW. HE HAS BEEN
TESTING THE THINGS THAT HAVE BEEN DONE BY PROFESSOR BALDUS FROM
A STATISTICAL POINT OF VIEW. AND IN SUPPORT OF HIS STATEMENTS
REGARDING WHAT HE HAS DONE WE FEEL IT WILL BE NECESSARY TO
DEVELOP HIS OPINIONS AS TO THE UNDERLYING METHODOLOGY UTILIZED
—— —— —————— S——— J——— —— en ——
1377
KATZ —- FOIR DIRE
IN THE DATA GATHERING TECHNIQUES. AND THE THINGS DONE WITH THE
DATA.
AND IT WOULD BE FROM THAT PERSPECTIVE THAT HE WOULD BE
TESTIFYING.
THE COURT: WELL, I HAVE SOME RESERVATIONS. BUT ILL
HAVE TO SEE WHAT. YOU PLAN TO ASK HIM BEFORE I CAN PUT PARAMETERS
ON THOSE RESERVATIONS.
S80. UNDERSTANDING THAT. I DONT KNOW HOW ™ RULE ON
YOUR OBJECTION EXCEPT TO SAY RENEW IT WHEN YOU’RE CONVINCED HE'S
FAR AFIELD.
MR. FORD: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
MS. WESTMORELAND: YOUR HONOR. SOME OF THE TESTIMONY
MAY VERY WELL RELATE THINGS THAT ARE NOT NECESSARILY A MATTER OF
HIS EXPERT OPINION. BUT THINGS THAT WOULD INVOLVE WHAT HE HAS
DONE AND PROCEDURES HE‘S UTILIZED IN DEVELOPING HIS ANALYSIS.
THE COURT: HAS HE MANIPULATED THIS DATA HIMSELF?
MS. WESTMORELAND: TO AN EXTENT, YES, YOUR HONOR.
THE COURT: WELL, LET’3S TAKE A SHORT TEN-MINUTE BREAK
AND THEN WE WILL START WITH HIM.
(RECESS TAKEN.)
THE COURT: ALL RIGHT, MS. WESTMORELAND. AHEAD.
MS. WESTMORELAND: THANK YOU YOUR HONOR.
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1378
KATZ - DIRECT
JOSEPH L. KATZ
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT’D)
BY MS. WESTMORELAND:
Qa. DOCTOR KATZ, HOW DID YOU COME TO BE INVOLVED IN THE INSTANT
CASE?
A. 1 WAS CONTACTED BY MR. NICHOLAS DUMICH. WHO IS AN ASSISTANT
STATE ATTORNEY GENERAL AT THE TIME, IN APPROXIMATELY THE EARLY
PART OF NOVEMBER. 1982.
A. AND WHAT WAS COMMUNICATED TO YOU AT THAT TIME, OR WHAT WAS
THE NATURE OF REQUEST MADE?
A. HE REQUESTED THAT I REVIEW DOCUMENTS WHICH CONSISTED OF
PROFESSOR BALDUS’ PRELIMINARY REPORT. AND TO GIVE MY STATISTICAL
OPINION OF THOSE DOCUMENTS.
Gl. AND DID YOU GIVE AN OPINION AT THAT TIME?
A. I TOLD HIM THAT THERE WAS VERY LITTLE INFORMATION CONTAINED
IN THOSE DOCUMENTS. AND TO EVALUATE WHETHER THE STUDY PERFORMED
BY PROFESSOR BALDUS WAS VALID, I WOULD NEED THE UNDERLYING DATA
TO SEE IF, TO SEE WHAT THE UNDERLYING DATA HAD TO PROVIDE.
'R. AND DID YOU SUBSEQUENTLY OBTAIN UNDERLYING DATA TO UTILIZE?
A. YES, I DID.
@. AND IN DOING THE WORK THAT YOUVE DONE. WHAT PRIMARY
INFORMATION HAVE YOU HAD AT YOUR DISPOSAL?
A. I HAD COPIES OF THE QUESTIONNAIRES FOR BOTH THE PROCEDURAL
— —— — — ——— — A BE — nn wae. F—
1379
KATZ - DIRECT
J
.
REFORM STUDY AND THE GEORGIA CHARGING AND SENTENCING STUDY,
2 WHICH WAS PROVIDED WITH THE PRELIMINARY REPORT.
3 1 HAD FOUR BOXES OF CARDS WHICH REPRESENTED THE.
4 COMPUTER CARDS, WHICH REPRESENTED THE PROCEDURAL REFORM STUDY
S DATA. AND A TAPE WHICH HAD THE CHARGING AND SENTENCING STUDY
i b DATA IN TERMS OF A MASTER FILE, A TASK FILE, WHICH I RECEIVED IN
7 JANUARY.
3 I HAD A DOCUMENT THAT GAVE THE DEFINITIONS OF THE
? VARIABLES USED IN THE PROCEDURAL REFORM STUDY AND THE CHARGING
10 AND SENTENCING STUDY, INCLUDING THE COMPUTER CODES THAT WERE
11 UTILIZED IN DEFINING THESE VARIABLES.
iz I WAS ALSO SENT OR GIVEN A SAMPLE OF THE REGRESSIONS
13 AND INDEXES THAT WERE RUN BY PROFESSOR BALDUS, ALONG WITH THE
14 COMPUTER TAPE AND CARDS.
15 I WAS PROVIDED WITH A LIST OF THE DEPENDENT VARIABLES
146 USED IN THE REGRESSION EXPERIMENT, AND THAT WAS PROVIDED TO ME
17 BY PROFESSOR BALDUS.
18 | PROFESSOR BALDUS ALSO PROVIDED A PRINTOUT OF THE CARD
a 19 IMAGES FOR THE PROCEDURAL REFORM STUDY SINCE THAT DATA HAD BEEN
20 PRESENTED IN TERMS OF CARDS, S0 I COULD CHECK TO SEE WHEN THE
21 CARDS WERE RUN IN THE COMPUTER THAT I HAD EXACTLY THE SAME DATA
22 HE WAS USING.
23 HE ALSO GAVE ME A PRINTOUT OF A CONDESCRIPTIVE FOR THE
24 PROCEDURAL REFORM STUDY, WHICH IS A LIST OF SUMMARY STATISTICS
25 THAT RELATE TO THE VARIABLES IN THE PROCEDURAL REFORM STUDY.
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@. AND WHEN YOU HAD THIS INFORMATION. WHAT INITIALLY DID YOU DO
WITH THAT INFORMATION AND THAT DATA THAT YOU OBTAINED?
A. 1 HAD THE DATA PUT ON THE COMPUTER THAT, FOR THE DEPARTMENT OF
ADMINISTRATIVE SERVICES. I HAD TWO SYSTEMS ANALYSTS TAKE THE
CARDS AND THE TAPE wa
@. EXCUSE ME. IS THAT THE ADMINISTRATIVE SERVICES FOR THE
STATE OF GEORGIA?
A. YES.
@. DID YOU UTILIZE THEIR COMPUTER THROUGHOUT?
A. YES. I DID.
R. ALL RIGHT.
A. THEY LOADED THE COMPUTER DATA FOR THE FROCEDURAL REFORM
STUDY AND THE CHARGING AND SENTENCING STUDY IN A FILE THAT I
COULD THEN PROCEED WITH THE STATISTICAL ANALYSIS OF THE DATA.
a. ONCE YOU HAD THE FILES CONSTRUCTED. DID YOU DO ANY TESTING
ON THOSE FILES FOR VALIDITY?
A. YES, 1 CROSS CHECKED THE DATA FILE FOR THE FROCEDURAL REFORM
STUDY WHICH WAS READ IN OFF OF CARDS TO MAKE SURE I HAD EXACTLY
THE DATA THAT WAS SENT TO ME BY PROFESSOR BALDUS, AND I WAS
ASSURED THAT BASED ON THE FORM OF THE DATA ON THE MAGNETIC TAPE.
THAT EITHER THE COMPUTER WOULD READ ALL OF IT CORRECTLY OR NONE
OF IT, SQ THAT I WAS ASSURED THAT THE INFORMATION FOR THE
CHARGING AND SENTENCING STUDY WAS ALSO CORRECT.
@. DID YOU THEN PROCEED TO ANALYZE PROFESSOR BALDUS” REFORT.
‘BASED ON THIS DATA?
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KATZ - DIRECT
‘A. YES, I DID.
2. IN ANALYZING THE INFORMATION PRESENTED TO YOU. THE DATA. AND
VARIOUS OTHER ITEMS PRESENTED TO YOU, WELL, LET ME BACKSPACE
JUST A LITTLE BIT.
IN DOING STUDIES OF THIS NATURE INVOLVING THE
COLLECTING OF DATA AND THAT SORT OF THING, WHAT WOULD BE THE
IMPORTANCE OF THE QUESTIONNAIRE AND THE QUESTIONNAIRE DESIGN.
JUST IN GENERAL?
A. WELL, TO UNDERSTAND WHAT -—-
MR. FORD: I OBJECT AT THIS TIME. YOUR HONOR. I
BELIEVE THAT'S KIND OF AN OPEN-ENDED QUESTION THAT I THINK DOES
GO POTENTIALLY AT LEAST, WELL BEYOND THE ESTABLISHED SCOPE OF
EXPERTISE AND DOES CALL FOR AN OPINION.
THE COURT: LET ME SEE WHAT HIS ANSWER IS, AND THEN
ILL FIND DUT A LITTLE BIT MORE ABOUT WHAT SHE PLANS TO GO INTO.
MR. FORD.
MR. FORD: THANK YOU, YOUR HONOR.
THE WITNESS: TO UNDERSTAND WHAT THE DATA REPRESENTS
AND HOW VALID THE DATA IS, ONE NEEDS TO INVESTIGATE THE
QUESTIONNAIRE DESIGN TO DETERMINE HOW QUESTIONS WERE ASKED TO
SEE IF ANY BIASES MIGHT HAVE BEEN PRESENTED IN TERMS OF THE
ALLOWABLE RESPONSES THAT WERE ALLOWED FOR EACH GUESTION.
BY MS. WESTMORELAND:
RA. AND WHAT TYPE OF THINGS DO YOU NORMALLY LOOK FOR WHEN YOU
EXAMINE QUESTIONNAIRE DESIGN IN GENERAL?
| KATZ - DIRECT
A. NORMALLY, I LOOK TO SEE THAT THE INFORMATION THAT WAS CODED
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| BASED ON THE QUESTIONNAIRE DESIGN FOR THE VARIABLES IN THE
COMPUTER ARE LOGICALLY AND CONSISTENTLY DEDUCIBLE FROM THE
QUESTIONS THAT ARE ASKED IN THE QUESTIONNAIRE.
@. AND DID YOU MAKE THIS TYPE OF EXAMINATION OF THE
QUESTIONNAIRES PRESENTED TO YOU IN THE INSTANT CASE?
A. YES, I DID. FOR BOTH THE PROCEDURAL REFORM STUDY, AND THE
{CHARGING AND SENTENCING STUDY QUESTIONNAIRE.
“. IN EXAMINING THE, FIRST THE PROCEDURAL REFORM STUDY. WHAT
10 ‘DID YOUR EXAMINATION REVEAL OF THAT PARTICULAR QUESTIONNAIRE?
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11 MR. FORD: OBJECTION, YOUR HONOR. AGAIN, I THINK THAT
12 ITS CLEAR FROM DOCTOR KATZ” ANSWER THAT THE LOGIC OF THE MANNER
13 IN WHICH THE QUESTIONS ARE ASKED IS THE KEY TO THIS ISSUE, AND
14 THAT IT SEEMS TO ME IS A SUBSTANTIVE AREA BEYOND HIS EXPERTISE,
15 GOES WELL BEYOND THE STATISTICAL QUESTION, WHETHER OR NOT
16 THEYRE CODABLE, AND THIS QUESTION, AS WELL.
17 MS. WESTMORELAND: YOUR HONOR. I WOULD SUBMIT THAT THE
18 QUESTION IS DIRECTED TO, FIRST OF ALL, THE FOUNDATION FOR HIS
@ 19 LATER ANALYSIS, AND I THINK THAT EVEN SO FAR AS IT GOES TO THAT
20 EXTENT, THAT IT WOULD BE RELEVANT.
21 AND FURTHER. I THINK WHAT WERE GETTING TO IS GENERAL
22 QVERALL QUESTIONNAIRE DESIGN, AND HOW IT RELATES TO THE
23 UNDERLYING DATA AND THE SUBSEQUENT STATISTICAL ANALYSES. AND I
28 THINK THE COURT WILL FIND THAT WHAT WE'RE DOING IS SHOWING A
23 CONTINUATION OF EFFECT, ESSENTIALLY. AND IN ORDER TO EXFLAIN |
— —— — p— A — —a—— —— ————— A——— YA—— ——— W—— ———— M——" A — ——.. F—— A——— : p—————— T— ——" ————— ——— — —— —— A tt. Sr. tp. S———— .
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1383
KATZ - DIRECT
pb
SUBSEQUENT STATISTICAL ANALYSES. AND PROBLEMS THAT ARISE AT THAT
STAGE. IT’S NECESSARY TO FOCUS ON THE ORIGIN OF THESE PARTICULAR
PROBLEMS, WHICH MAY HAVE ARISEN BACK AT THE ORIGINAL
GUESTIONNAIRE STAGE, AND IT’S FOR THAT PURPOSE THAT I’M ASKING
THE QUESTION IN THIS CASE. ;
THE COURT: THERE ARE SOME FAULTS WITH THE
QUESTIONNAIRE THAT ARE OBVIOUS. THERE ARE SOME FAULTS THAT HAVE
BECOME OBVIOUS THROUGH JUST TRIAL AND ERROR IN THE PROBLEMS THAT
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THE PETITIONER HAS PRESENTED. AND THERE MAY BE SOME OTHER
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PROBLEMS THAT AREN‘T OBVIOUS TO AN EDUCATED LAYMAN.
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MY CONCERN IS THAT NOTHING IN YOUR PRESENTATION
12 REGARDING HIS EXPERIENCES OR TRAINING SUGGESTED EITHER EXTENSIVE
13 TRAINING OR EXPERIENCE IN QUESTIONNAIRE DESIGN BEYOND THAT WHICH
14 IS KNOWABLE TO ANYBODY WITH A RUDIMENTARY KNOWLEDGE OF
15 STATISTICS.
146 AND I DON’T KNOW WHAT HES GODING TO SAY. AND THATS
$7 WHY IM HAVING TROUBLE RULING.
13 IF WERE GOING TO START OETTING INTO ALL SORTS OF
w 19 ESOTERIC PRINCIPLES WITH THE NAMES OF DISTINGUISHED PROFESSORS
20 ATTACHED TO THEM AS THEY RELATE TO COMPUTER, I MEAN TO
23 QUESTIONNAIRE DESIGN, I DOUBT IT’S WITHIN HIS SPHERE TO TESTIFY
22 OR TO EXPRESS OPINIONS THEREIN.
23 IF HE’S GOING TO POINT OUT THE OBVIOUS, THEN HE DOESNT
24 NEED ANY EXPERTISE AND THE QUESTION GETS TO BE WHETHER WE NEED
23 AN EXPERT WITNESS TO TESTIFY ABOUT IT.
1384
KATZ - DIRECT
CAN YOU GIVE ME SOME IDEA OF WHAT, WHERE WERE GOING?
[A
Y
MS. WESTMORELAND: YES, YOUR HONOR. I THINK I CAN GIVE
YOU A FAIRLY CLEAR IDEA OF WHERE WERE GOING, AND I THINK THE
COURT WILL FIND THAT THE, AND THE PURPOSE, PERHAPS, OF THIS, IS
TO LAY A FOUNDATION, MORE THAN ANYTHING ELSE, AND I THINK THAT
THE COURT WILL FIND THAT THE AREAS WERE EMPHASIZING ARE AREAS
THAT ARE, IF NOT IMMEDIATELY APPARENT FROM OBSERVING THE
QUESTIONNAIRE ARE SOMETHING THAT WOULD NOT NECESSARILY TAKE,
IM NOT, WERE NOT TALKING ABOUT ESOTERIC QUESTIONS CONCERNING
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GUESTIONNAIRE DESIGNS.
11 I GUESS. FOR INSTANCE. AN EXAMPLE WOULD BE THE, THE
12 UTILIZATION OF A FOIL METHOD, AND THE FROBLEMS THAT IT CAUSES IN
13 THIS AREA BY ALLOWING FOR UNKNOWNS. AND THE BASIS FOR THESE
14 TYPES OF QUESTIONS IS TO LAY A FOUNDATION FOR WHAT WAS LATER
15 DONE WITH THE DATA AND WHY THIS CAUSED PROBLEMS IN LATER
1& ANALYSES.
17 AND I THINK THE TESTIMONY IS OFFERED NOT SO MUCH AS AN
13 EXPERT OPINION IN THIS AREA, BUT TO ESTABLISH THINGS THAT HE
w 17 OBSERVED JUST FROM EXAMINING THE QUESTIONNAIRES. AND THE REASON
20 FOR OFFERING THAT TESTIMONY IS LIKE I SAID, TO LAY A FOUNDATION
21 FOR HIS LATER TESTIMONY AS TO PROBLEMS THAT WILL DEVELOP IN THE
22 ANALYSES.
23 THE COURT: MR. FORD, I DON‘T KNOW OF ANY OTHER WAY TO
24 DO THIS FAIRLY AND ALLOW MS. WESTMORELAND TO PROTECT HER RECORD
23 THAN TO LET HER RUN A LITTLE BIT MORE AND THEN HEAR YOU OUT ON A
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1385
KATZ - DIRECT
MOTION TO STRIKE, IF HE“S GOTTEN TOO FAR AFIELD.
MR. FORD: THAT“S FINE, YOUR HONOR.
THE COURT: I WAS JUST THINKING ABOUT IT. I DON’T KNOW
REALLY THAT WE HAVE GOT ANY EXPERT TESTIMONY ON EITHER ONE OF
YOUR EXPERTS THAT THEY’RE EXPERT ON THE DESIGN OF A FORMAT.
I DONT EVEN UNDERSTAND YOUR STATISTICIAN TO HAVE
REALLY DONE THE DESIGN. HE MAY HAVE CONSULTED TO SOME EXTENT ON
IT. Ta THE EXTENT THAT THE FORMAT OF THE QUESTIONNAIRE MIGHT
PRESENT STATISTICAL PROBLEMS. I REMEMBER HE WAS PRIMARILY A
THEORETICAL STATISTICIAN HIMSELF.
SO ITS A FINE LINE, AND LET“S JUST SEE WHERE WE GO.
BEFORE I ALLOW HER TO PUT IN THE RECORD THAT THE
QUESTIONNAIRE WAS NOT DESIGNED IN ACCORDANCE WITH GOOD
INFORMATION GATHERING TECHNIQUES, I MOST ASSUREDLY WILL HEAR
FROM YOU, OKAY?
MR. FORD: THANK YOU, YOUR HONOR.
MS. WESTMORELAND: YOUR HONOR, AS I INDICATED. I THINK
AT THIS TIME MY INTENT IS TO POINT OUT PROBLEMS. BUT WE WILL LAY
A FOUNDATION --—
THE COURT: WELL, LET’S JUSE SEE WHERE YODU‘RE GOING.
MS. WESTMORELAND. IVE BEEN TRYING TO SMOKE YOU OUT FOR SIX
DAYS. AND IM ABOUT TO TRY AND BE A LITTLE MORE SPECIFIC.
MS. WESTMORELAND: I“M TRYING, YOUR HONOR.
BY M3. WESTMORELAND:
Q. DOCTOR KATZ. I BELIEVE I-VE ASKED YOU IF YOU EXAMINED THE
Pr
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1386
KATZ - DIRECT
PROCEDURAL REFORM STUDY QUESTIONNAIRE?
A. YES.
G0. AND IN EXAMINING THAT QUESTIONNAIRE, DID YOU DETECT THINGS
THAT MIGHT BE CLASSIFIED AS PROBLEMS WHICH COULD AFFECT LATER
ANALYSES?
A. YES. I DETECTED A PROBLEM THAT WAS THE DIRECT RESULT OF THE
USE OF THE FOIL METHOD, IN THE PROCEDURAL REFORM STUDY
QUESTIONNAIRE.
@. AND BY FOIL METHOD. WHAT ARE YOU REFERRING TO?
A. THE FOIL METHOD IS A METHOD IN WHICH PROFESSOR BALDUS
|UTILIZED. WHICH PROFESSOR BALDUS UTILIZED BY MAKING A LIST OF
SEVERAL ITEMS AND HAVING FEWER FOILS ON THE SIDE OF THAT
QUESTION IN WHICH THE DATA COLLECTORS FILLED IN THE SUPPOSEDLY
APPROPRIATE RESPONSES THAT PERTAINED TO THE CASE IN THOSE FOILS.
@. AND WHAT PROBLEM WAS CREATED IN. THAT WOULD AFFECT YOUR
LATER ANALYSES BY THE UTILIZATION OF THE FOIL METHOD?
A. ONE PROBLEM THAT BECAME APPARENT WAS THAT IN MANY. EXCUSE
ME, IN SOME OF THE QUESTIONS, THERE WERE NOT SUFFICIENT FOILS
FOR ALL THE RESPONSES AS INDICATED BY DATA FROM THE CHARGING AND
SENTENCING STUDY.
@. BY THAT YOU MEAN YOU COMPARED THE DATA IN THE SAME TWO
STUDIES?
A. YES, FOR THE SAME CASE, AND FOUND THAT IN THE CHARGING AND
SENTENCING STUDY THERE WERE OCCASIONALLY CASES IN WHICH MORE
AGGRAVATING CIRCUMSTANCES WERE INDICATED FOR THAT CASE THAN THE
{
| KATZ -~ DIRECT
1 NUMBER ALLOWED FOR, IN QUESTION 30 OF THE CHARGE. EXCUSE ME. OF
2 THE PROCEDURAL REFORM STUDY.
Q. SO WHAT WAS THE PROBLEM THAT WAS CREATED WITH THE PROCEDURAL
REFORM STUDY FROM THIS METHOD?
‘A. BY HAVING INSUFFICIENT FOILS FOR CERTAIN QUESTIONS. SOME
3
4
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Ri & INFORMATION WAS POTENTIALLY LOST FOR THE ANALYSIS.
7 @. IN EXAMINING THIS FOIL METHOD. ASIDE FROM THE PROELEM.
& OBVIOUS PROBLEM WITH NOT NECESSARILY HAVING ENOUGH FOILS, WERE
9 OTHER PROBLEMS PRESENT?
10 A. YES. ANOTHER PROBLEM WITH THE FOIL METHOD RESULTS FROM THE
13 CODER BEING ASKED TO INDICATE MUCH MORE INFORMATION ON THE
12 COMPUTER FOILS THAT ARE AVAILABLE. THAN CAN POSSIBLY BE FROVIDED
13 BY THE METHODS THAT I PRESUME WERE USED.
14 FOR EXAMPLE, QUESTION 26 FROM THE PROCEDURAL REFORM
13 STUDY. THE QUESTION WHICH ASKS, DID THE MURDER OCCUR WHILE THE
16 DEFENDANT WAS ENGAGED IN THE COMMISSION OF A CONTEMPORANEOUS
17 OFFENSE.
13 "AND IN THIS QUESTION, THERE ARE THREE FOILS THAT ARE
ww 19 INDICATED IN WHICH I PRESUME THE DATA COLLECTOR WAS TO INDICATE
20 THOSE CONTEMPORANEOUS OFFENSES THAT OCCURRED.
2% WHEN PROFESSOR BALDUS DEFINED HIS VARIABLES, USING THE
22 INFORMATION FROM THESE FOILS, -——
23 ®. BY DEFINING VARIABLES, WHAT DO YOU MEAN IN THAT CONTEXT?
24 A. THE VARIABLES THAT HE EVENTUALLY USED IN HIS STUDY OR HIS
235 COMPUTER ANALYSIS OF THE PROCEDURAL REFORM STUDY. HE DEFINED THE
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1338
KATZ - DIRECT
pot
e VARIABLE TO BE PRESENT IF THAT CODE WAS PRESENT FOR THIS
QUESTION.
FOR EXAMPLE. THE CODE NUMBER 01 REPRESENTS KIDNAPPING.
WHEN PROFESSOR BALDUS DEFINED HIS VARIABLE AS TO WHETHER THE
VARIABLE KIDNAP WAS PRESUMABLY WHETHER A KIDNAPPING OCCURRED OR
NOT, HE WOULD SEARCH THROUGH THE THREE FOILS TO DETERMINE IF
THAT CODE. 01, WAS PRESENT. :
NOW HE DEFINED MANY VARIABLES DEALING WITH WHETHER A
CONTEMPORANEOUS OFFENSE OCCURRED OR NOT, AND HE ONLY HAD THE
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INFORMATION ON 3 FOILS TO CHOOSE FROM.
11 ONE PROBLEM THAT MAY ARISE IS THAT NOT ONLY INFORMATION
12 CONTAINED IN ALL THE ITEMS MAY BE AVAILABLE TO THE CODER. AND
13 USING THE FOIL METHOD, THERES NO WAY THAT THE DATA COLLECTOR
14 CAN TRANSMIT THIS INFORMATION S0 THAT IT CAN EVENTUALLY BE CODED
13 IN THE COMPUTER AS UNKNOWN.
1&6 FOR EXAMPLE, LET US SUPPOSE THAT THE DATA COLLECTOR
17 INDICATED THAT A KIDNAPPING HAD OCCURRED, AND CODED Ol.
18 AND THEN WAS UNSURE IF RAPE, WHICH IS THE ITEM NUMBER
w 12 3. HAD ALS0 OCCURRED.
20 THERE IS NO WAY THAT I CAN SEE IN CHECKING THE CODES
21 THAT WERE USED FOR THESE 3 FOILS THAT THIS INFORMATION CAN BE
22 TRANSMITTED ON TO THE COMPUTER DATA BASE. AND ANALYZED.
23 THERE'S NO WAY THAT CAN BE DEDUCED FROM THE CODES THAT
24 WERE ALLOWED FOR THE FOILS.
23 THEREFORE. IF A PARTICULAR CONTEMPORANEOUS OFFENSE WAS
KATZ ~ DIRECT
UNKNOWN, THERE IS NO WAY THAT IT CAN BE CODED AS UNKNOWN, GIVEN
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2 JUST 3 FOILS.
3 | THERE’S ALSO A RESPONSE THAT’S POSSIBLE, WHICH IS QO,
4 WHICH REPRESENTS UNKNOWN.
5 I PRESUME THAT IF IT WAS UNKNOWN WHETHER A
& & CONTEMPORANEOUS OFFENSE HAD OCCURRED, THAT THE CODER WOULD CODE
7 ZERO FOR THE FIRST FOIL AND 99 FOR THE TWO REMAINING FOILS.
8 NOW IN THESE CASES, IT’S DIFFICULT TO UNDERSTAND FROM
2? MY PERSPECTIVE WHETHER ALL THESE ITEMS WERE UNKNOWN OR JUST SOME
10 QF THE ITEMS WERE UNKNOWN.
£7 FOR EXAMPLE. CODING THAT, WHETHER A CONTEMPORANEOUS
: OFFENSE HAD OCCURRED IS UNKNOWN MAY BE SOME MISUNDERSTANDING AS
13 TO WHETHER KIDNAPPING OR ARMED ROBBERY OR RAPE HAD OCCURRED.
14 AND SO THAT CODE OF UNKNOWN WAS PRESENT.
15 HOWEVER, THE DATA COLLECTOR MAY HAVE HAD INFORMATION
16 ABOUT SOME OF THE OTHER ITEMS, AS TO WHETHER THEFT HAD OCCURRED
17 OR ITEM 08. PROSTITUTION, COMMERCIAL VICE, NARCOTICS. HAD
18 DEFINITELY NOT OCCURRED.
. 1? IN THAT CASE, THERE“S NO WAY HE CAN USE THE 3 FOILS TO
20 REPRESENT THAT INFORMATION, SO IT COULD BE TRANSMITTED AS A
21 COMPUTER VARIABLE.
22 THE PROBLEM WITH THIS FOIL METHOD IS THAT THERE ARE
23 ONLY 2 FOILS IN WHICH A GREAT DEAL OF INFORMATION HAS TO BE
24 REPRESENTED. AND IT’S IMPOSSIBLE TO REPRESENT ALL THE
23 INFORMATION, ESPECIALLY IN THE MANNER THAT FROFESSOR BALDUS
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KATZ - DIRECT
CODED HIS VARIABLES. WITH ONLY THE 3 FOILS.
@. WERE THERE OTHER PROBLEMS PRESENTED OR THAT YOU FOUND
EXISTING IN THE QUESTIONNAIRE THAT COULD CAUSE PROBLEMS IN THE
SUBSEQUENT DATA SET, IN DEFINING OF VARIABLES?
A. YES, I NOTICED THAT SOME OF THE RUESTIONS HAD AN ALTERNATIVE
ITEM, CALLED "OTHER" IN WHICH THERE WAS A LINE NEXT TO IT, AND
WHICH I PRESUME THE DATA COLLECTOR WAS SUPPOSED TO FILL IN THE
OTHER ITEM THAT APPLIED FOR THAT PARTICULAR CASE.
FOR EXAMPLE. THE QUESTION ON MOTIVE. WHICH I BELIEVE IS
RUESTION 27, —-
@. OF WHAT STUDY ARE YOU REFERRING TO?
A. OF THE PROCEDURAL REFORM STUDY, WHERE IT“S INDICATED THAT --
@. LET ME GET YOU TO REFER TO A SPECIFIC EXHIBIT IN THAT
REGARD, IF I COULD.
WOULD YOU REFER TO DB-35, WHICH I BELIEVE WAS
PREVIOUSLY ADMITTED AND IDENTIFIED AS THE PROCEDURAL REFORM
STUDY QUESTIONNAIRE, AND EXPLAIN PRECISELY WHAT YOU RE TALKING
ABOUT.
THE COURT: LET ME GET TO DB-35S. IS THAT IN VOLUME 1
OR VOLUME 27
MS. WESTMORELAND: VOLUME 2, YOUR HONOR.
THE COURT: ALL RIGHT.
THE WITNESS: QUESTION NUMBER 27. ON DEFENDANT”S
MOTIVE.
BY MS. WESTMORELAND:
1391
KATZ ~ DIRECT
-
'Q. WHAT PAGE IS THAT ON, DOCTOR KATZ?
A. ON PAGE 7, ITEM 17 REPRESENTS "OTHER" AND I BELIEVE TWO
LINES ARE INDICATED ALLOWING THE DATA COLLECTOR TO INDICATE
EXACTLY WHAT THAT MOTIVE IS.
AND ONCE INDICATING THAT. ITEM 17, I PRESUME. WOULD BE
CODED AS ONE OF THE FOILS.
I EXAMINED THE DATA SET THAT I RECEIVED ON THE COMPUTER
TO DETERMINE HOW MANY CASES THERE WERE IN WHICH "OTHER" ITEMS
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—
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12 THIS INFORMATION IN HIS ANALYSIS.
13 @. AND HOW WOULD THAT INFORMATION HAVE BEEN INCLUDED IN A
14 COMPUTER ANALYSIS?
15 A. GENERALLY TO INCLUDE THIS INFORMATION, ONE WOULD TAKE THIS
146 INFORMATION IN THIS CATEGORY, AND CREATE ADDITIONAL ITEMS SO
17 THAT THIS INFORMATION COULD BE INCLUDED IN THE ANALYSIS.
18 @. BY ITEMS YOU MEAN VARIABLES FOR THE COMPUTER?
- io A. VARIABLES OR INSTEAD OF LIMITING THE NUMBER OF ITEMS IN THIS
20 QUESTION TO 18, DEFINE ITEM 19 EQUAL TO ONE OF THE OTHER MOTIVES
21 THAT WAS PRESENT AND SO FORTH, AND TRY AND INCLUDE THIS
22 ADDITIONAL INFORMATION IN THE ANALYSIS.
23 @. AND WHAT DID YOU CONCLUDE FROM EXAMINING THE DATA AND THE
24 CODING GIVEN TO YOU BY PROFESSOR BALDUS?
23 A. AFTER EXAMINING THE DATA. I DIDN‘T SEE ANY ATTEMPT MADE TO
KATZ —- DIRECT
1 TRY AND UTILIZE THIS INFORMATION THAT HE HAD COLLECTED IN THE
l ANALYSIS.
3 @. AND DID YOU MAKE ANY OBSERVATIONS IN THIS REGARD CONCERNING
4 THE QUESTIONNAIRE IN THE CHARGING AND SENTENCING STUDY?
5 A. YES. THE QUESTIONNAIRE IN THE CHARGING AND SENTENCING STUDY
& HAS THIS SAME OPTION AVAILABLE IN MANY OF THE DIFFERENT
7 AREAS. AND AGAIN, I DID NOT SEE ANY ATTEMPT MADE TO TRY AND
8 UTILIZE THIS INFORMATION IN THE ANALYSIS OF THE CHARGING AND
9 SENTENCING STUDY.
10 @. WHAT ABOUT THE FOIL METHOD IN THE CHARGING AND SENTENCING
11 STUDY?
12 A. THE CHARGING AND SENTENCING STUDY IS AN IMPROVED
13 RAUESTIONNAIRE THAN THE ONE USED IN THE PROCEDURAL REFORM STUDY
14 IN THAT MANY OF THE ITEMS SPECIFICALLY ASK FOR A RESPONSE OF
13 EITHER KNOWN, UNKNOWN, EXCUSE ME, WHETHER IT’S OCCURRED,
14 WHETHER IT’S JUST SUGGESTED IN THE FILE. WHETHER ITS NOT ABLE
1? TO BE CLASSIFIED AND WHETHER IT DID NOT OCCUR.
13 HOWEVER. THERE ARE QUESTIONS THAT UTILIZE THE FOIL
w 19 METHOD IN A SLIGHTLY DIFFERENT FORM THAN THE ONES USED IN THE
20 PROCEDURAL REFORM STUDY.
21 FOR EXAMPLE. IN DB-33, RUESTION NUMBER 47. FART A.
22 |®@. AND WHAT ABOUT THE INDICATION YOU FOUND CONCERNING THE, I
23 BELIEVE YOU CALLED THEM "OTHER" ITEMS OR THE PROVISION FOR AN
24 "OTHER" DESIGNATION?
23 | THE COURT: WAIT A MINUTE. I“M NOT WITH YOU YET.
KATZ ~ DIRECT
a MS. WESTMORELAND: I“M SORRY. YOUR HONOR. IT’S DB-33.
2 THE COURT: 28. YOU SAID FOR EXAMPLE ON A MULTI-FOIL.,
3 |FOR EXAMPLE, WHERE?
4 THE WITNESS: PAGE 15. YOUR HONOR.
= THE COURT: 157
kd & THE WITNESS: YES.
7 BY MS. WESTMORELAND:
& |@. SO THAT QUESTION?
9 |A. AGAIN THIS IS A FOIL METHOD QUESTION, AND AGAIN ASKS FOR, I
10 |PRESUME THE DATA COLLECTORS TO INDICATE THOSE ITEMS IN THE
11 |QUESTION THAT APPLY TO THE PARTICULAR CASE.
12 HOWEVER. IN THIS QUESTION, THERE IS NO ITEM FOR AN
13 | "UNKNOWN" RESPONSE, WHEREAS IN THE OTHER QUESTION, THE OTHER
14 QUESTIONS IN THE PROCEDURAL REFORM STUDY. THAT UTILIZED THE FOIL
{5 METHOD. THERE WAS AN ITEM ALLOWING THE "UNKNOWN" RESPONSE.
16 THEREFORE. IF IN FACT IT WAS UNKNOWN WHETHER ANY OF
17 | THESE AGGRAVATING FEATURES OF THE OFFENSE OCCURRED OR NOT, I
18 |WOULD NOT KNOW HOW THAT COULD BE REPRESENTED.
w 19 |G. TAKE BACK UP THE QUESTION I WAS GETTING READY TO ASK A
| 20 |MINUTE AGO.
21 WHAT ABOUT THE PRESENCE OF THE, THESE "OTHER" ITEMS,
22 |THE "OTHER" RESPONSES TO THE GUESTIONS? DID YOU FIND THAT THAT
23 PERSISTED IN THE CHARGING AND SENTENCING STUDY?
24 |A. YES. I DID. FOR EXAMPLE, QUESTION NUMBER S5& ON PAGE 21.
23 RQ. OF DB-32R?
KATZ - DIRECT
A. OF DB-38. THIS GROUP OF QUESTIONS ASKS FOR INFORMATION
CONCERNING MITIGATING CIRCUMSTANCES CONCERNING THE DEFENDANTS
BEHAVIOR. AND ITEM NUMBER 273 IS INDICATED AS "OTHER". AND I
INVESTIGATED THOSE ITEMS AND FOUND NO INDICATION THAT THIS
INFORMATION WAS CODED IN THE COMPUTER VARIABLES THAT I RECEIVED.
AND USED IN THE ANALYSIS.
@. 1 BELIEVE YOU NOTED THAT THE CHARGING AND SENTENCING STUDY
ASIDE FROM THE GUESTIONS WITH THE FOIL METHOD, HAD QUESTIONS
PROVIDING FOR MORE THAN JUST A YES OR NO RESPONSE. GIVING FOUR
AVAILABLE RESPONSES.
DID THAT ASSIST IN THE DATA BASE OR PROVIDE ADDITIONAL
DATA FOR THE DATA BASE AS BEST YOU COULD TELL?
A. 1 BELIEVE THAT MADE THE DATA BASE MORE RELIABLE FOR THOSE
ITEMS, BECAUSE ONE WAS GIVEN A DIRECT MEASURE OF THE RELIABILITY
OF THAT ITEM.
@. HOW WERE THOSE ITEMS TREATED IN THE CODING OF THE VARIABLES?
A. PROFESSOR BALDUS WOULD CODE ITEMS THAT HAD A 1 OR A 2, AS 1
FOR A VARIABLE, GENERALLY INDICATING, I PRESUME, THAT THAT
VARIABLE HAD OCCURRED.
AND ITEMS THAT WERE BLANK OR CODED "U" WERE GIVEN A
ZERO VALUE, PRESUMABLY INDICATING THAT THAT ITEM DID NOT OCCUR
IN THE PARTICULAR CASE.
MS. WESTMORELAND: YOUR HONOR. AT THIS TIME. I HAVE OUR
VERSION OF NOTEBOOKS AT ANY RATE. I HAVE ONE FOR THE CLERK, ONE
FOR THE COURT AND ONE FOR THE =— AND I HAVE GIVEN PETITIONER"S
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KATZ - DIRECT
COUNSEL A COPY OF THESE DOCUMENTS. THEYRE NOT. UNFORTUNATELY.
TABULATED IN THE SAME NICE MANNER, NEITHER IS MY COPY, BUT I
WILL REFER SPECIFICALLY TO ITEMS AS WE GO THROUGH.
THE COURT: ALL RIGHT.
BY MS. WESTMORELAND:
@. DOCTOR KATZ, ILL ASK YOU TO REFER IN THE NOTEBOOK WHICH
1-VE JUST GIVEN YOU AND REFER TO A DOCUMENT LABELED RESPONDENTS
EXHIBIT 17. DO YOU HAVE THAT DOCUMENT IN FRONT OF YOU?
A. YES.
@. COULD YDU IDENTIFY THAT DOCUMENT FOR US. PLEASE?
A. THIS IS TABLE 1, COUNTS OF THE NUMBER OF UNKNOWNS FOR
VARIABLES IN THE PROCEDURAL REFORM STUDY. THIS IS A TABLE THAT
I PREPARED.
I LISTED THE VARIABLES THAT WERE DEFINED ON THE
QUESTIONNAIRE AND THAT IS IN THE LEFT-HAND COLUMN UNDER
"VARIABLE" AND -——
R. AND THESE ARE THE QUESTIONS ON THE QUESTIONNAIRE ITSELF?
A. YES.
R. ALL RIGHT.
A. THEN FOR THE SECOND COLUMN, I LIST A NUMBER OF UNKNOWNS AS
INDICATED BY THE CODERS FOR EACH OF THOSE QUESTIONS.
I RAN A COMPUTER PROGRAM THAT COUNTED THE NUMBER OF
UNKNOWNS FOR EACH CASE. EXCUSE ME.
R. WOULD THAT BE WHERE IT’S SPECIFICALLY DESIGNATED "UNKNOWN?"
A. YES.
1396
KATZ ~ DIRECT
THESE ARE SPECIFICALLY DESIGNATED UNKNOWNS, RATHER THAN
UNKNOWNS THAT COULD BE PRESENT BECAUSE OF THE NATURE OF THE FOIL
DESIGN.
THE CDURT: LET ME MAKE SURE I UNDERSTAND YOU.
AS 1 REMEMBER. WE HAD TWO CODES, ONE WAS "U". WERE YOU
IN HERE WHEN MR. GATES TESTIFIED?
THE WITNESS: YES.
THE COURT: MR. GATES TESTIFIED HE PUT A "U" DOWN WHEN
HE COULD NOT BE ABSOLUTELY CERTAIN OF WHETHER OR NOT IT WAS
PRESENT AND HE PUT A "NOT PRESENT" OR LEFT IT BLANK WHEN THERE
WAS NO MENTION FROM WHICH BY INFERENCE OR OTHERWISE YOU COULD
GATHER THAT THAT WAS PRESENT.
NOW, ARE YOU TALKING ABOUT THE "NOT PRESENT" UNKNOWN,
OR ARE YOU TALKING ABOUT THE "U" UNKNOWN.
THE WITNESS: YOUR HONOR, THIS IS FOR THE PROCEDURAL
REFORM STUDY.
THE COURT: OH. STUDY NUMBER ONE. OKAY.
THE WITNESS: THE UNKNOWNS WERE, THESE ARE THE UNKNOWNS
THAT WERE PRECISELY INDICATED BY THE CODE. ZERO, THEN THE NINES
AS A FILLER ITEM.
THE COURT: OKAY. I THOUGHT YOU WERE TALKING ABOUT THE
SECOND STUDY.
BY MS. WESTMORELAND:
RQ. DOCTOR KATZ, YOU WERE INDICATING THAT YOU HAD RUN A COMPUTER
PROGRAM TO PREPARE THIS TABLE?
1397
KATZ - DIRECT
[u
e (A. YES.
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AND IN THE THIRD COLUMN I HAVE A BRIEF DESCRIPTION OF
THE VARIABLE THAT“S REPRESENTED BY THE QUESTION RELATED IN THE
VARIABLE COLUMN.
@. AND WHERE DID YOU OBTAIN THAT DESCRIPTION?
A. 1 TRIED TO USE THE, THE INFORMATION CONTAINED ON THE
QUESTIONNAIRE AS TO WHAT THAT VARIABLE OR THAT QUESTION WAS
RELATED TO.
@. DID YOU MAKE ANY JUDGMENT AS TO THE DEFINITIONS OR --
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VARIABLE WHICH GIVES THE QUESTION THAT IT RELATES TO, SO THAT MY
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| INFORMATION REPRESENTS OR WHAT THE QUESTION REPRESENTS.
13 '@. AND DID YOU INCLUDE ALL VARIABLES IN RUNNING THIS TABLE?
14 A. 1 DON‘T BELIEVE SO. I JUST INCLUDED MOST OF THE VARIABLES.
17 @. DID YOU HAVE ANY SPECIFIC REASON FOR ELIMINATING SOME
18 VARIABLES?
ww 19 A. SOME OF THE VARIABLES HAD TO DO WITH DATES OF OFFENSE, AND
20 OTHER KINDS OF INFORMATION THAT I DIDNT INCLUDE.
= THERE MAY ALSO BE SOME VARIABLES THAT ARE NOT INCLUDED
2 IN TERMS OF THE CONVICTION RECORDS. THE ACTUAL CONVICTION FOR
23 CERTAIN, CERTAIN OF THOSE VARIABLES. BUT THESE DO GIVE MOST OF
249 THE VARIABLES FROM THE QUESTIONS DEFINED ON THE PROCEDURAL
23 REFORM STUDY.
1398
KATZ - DIRECT
1 |@. DO YOU RECALL WHEN YOU LAST UPDATED THIS TABLE OR RAN THE
2 COMPUTER PROGRAM FOR THIS TABLE?
2 |A. THIS TABLE IS BASED ON THE DATA THAT WAS. THAT I RECEIVED AT
THE END OF JANUARY, SO IT HAS NOT BEEN UPDATED.
@. AND YOU HAVE RECEIVED TAPES SINCE THAT TIME. I FRESUME?
4
S
d & A. YES: I HAVE RECEIVED TAPES SINCE, THAT TIME AND I HAVENT
7 INCORPORATED THE CHANGES IN THOSE TAPES ON THIS TABLE.
a @. HAVE YOU --
? THE COURT: HAVE OR HAVE NOT?
10 THE WITNESS: HAVE NOT. YOUR HONOR.
i1 BY MS. WESTMORELAND:
12 @. HAVE YOU EXAMINED THOSE TAPES OR MADE ANY RUNS ON THOSE
13 TAPES?
14 A. I HAVE HAD A CHANCE TO MAKE A FEW RUNS ON THOSE TAPES. AND I
15 FIND SOME OF THE UNKNOWNS THAT ARE INDICATED IN THIS TABLE HAVE
16 BEEN CHANGED.
17 @. DO YOU HAVE ANY IDEA WHAT PERCENTAGE THAT WOULD BE?
18 A. NO, I HAVEN‘T HAD A CHANCE TO FULLY INVESTIGATE THIS
w ig QUESTION, IN TERMS OF THE MOST RECENT TABLE.
20 @. AND THAT WOULD BE THE TAPE RECEIVED LAST WEEK?
21 A. I BELIEVE IT WAS AUGUST 8, 1983.
x MS. WESTMORELAND: YOUR HONOR, I WOULD LIKE TO SUBMIT
23 RESPONDENTS EXHIBIT NUMBER 17 AS A TABLE IN WHICH DOCTOR KATZ
24 HAS RUN THE COMPUTER PROGRAM, COUNTING THE UNKNOWNS AS THEY
23 EXISTED IN THE TAPE IN THE PROCEDURAL REFORM STUDY AT THE TIME |
—— A... seme. weenie — —. ge — — —— — — ——
KATZ — DIRECT
1 THAT WE RECEIVED THE INFORMATION, AND THAT THE INITIAL ANALYSIS
MN
WAS DONE.
3 MR. FORD: YOUR HONOR, I HAVE A NUMBER OF OBJECTIONS,
4 THE SIMPLEST OF WHICH IS THAT THIS, IF I UNDERSTAND THE DOCTOR’S
TESTIMONY, THIS ISN‘T THE DATA THAT WE“RE TALKING ABOUT. THE ¥
& PREVIOUS DATA SET. AND HE REALLY CAN’T ESTIMATE HOW MUCH IT’S
7 |BEEN CHANGED.
8 I HAVE SEVERAL OTHER OBJECTIONS AS WELL, BUT I THINK
9 |THAT --
10 THE COURT: WELL, IF THAT PROBLEM WEREN‘T PARTIALLY OF
11 YOUR OWN MAKING IT WOULD HAVE JUST A LOT OF APPEAL. LET’S TRY
12 |THE SECOND OBJECTION AND SEE IF IT HAS —-
13 MR. FORD: COULD I HAVE A MOMENT ON THAT, BECAUSE IM
14 |NOT SURE TO THE EXTENT THAT IT IS OF OUR OWN MAKING, YOUR HONOR.
15 MY SECOND OBJECTION, YOUR HONOR, WOULD HAVE TO DO WITH
16 [SIMPLY THE QUESTION OF RELEVANCY OF THIS ISSUE OF NUMBER OF
17 |UNKNOWNS AT THIS POINT.
13 I DON‘T KNOW IF IT CAN BE TIED IN LATER, BUT IM HOPING
a 19 ITS NOT GOING TO GENERALLY SLIP IN. THE COURT HAS BEEN STRICT
20 WITH REGARD TO THAT QUESTION, AND I DON‘T SEE THE RELEVANCE AT
21 THIS POINT OF THESE NUMBERS.
22 THE COURT: THAT'S A FAIR RUESTIUN.
23 | MS. WESTMORELAND: YOUR HONOR, RELEVANCE AT THIS POINT,
24 AND I THINK IT WILL BE TIED IN IN SOMEWHAT MORE DETAIL IN A
23 LATER DISCUSSION OF THE ANALYSES THAT WERE UNDERTAKEN, BUT AT
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KATZ - DIRECT
THIS POINT WE‘RE SHOWING THE COMPOSITION DF THE DATA BASE
ITSELF, AND TO THAT EXTENT, I THINK THAT THIS DOCUMENT IS
RELEVANT TO HELP ESTABLISH THE COMPOSITION OF THE DATA SET. AND
THE QUESTION OF POTENTIALLY MISSING INFORMATION IN REGARD TO
CERTAIN SPECIFIC ITEMS THAT MAY HAVE BEEN INCLUDED.
THE COURT: MY CONCERNS ARE TWOFOLD.
TO THE EXTENT THAT IT REALLY DOES BECOME RELEVANT. IT
1S RELEVANT ONLY AS A COMMENTARY ON THE DATA BASE USED TO RUN
THE TABLE, AND AS I LUNDERSTAND FROM ALL THE TABLES I“VE ADMITTED
TO BEEN RUN ON THE REVISED DATA BASE.
IS THAT RIGHT?
MR. FORD: THAT IS MY UNDERSTANDING. YOUR HONOR.
THE COURT: BECAUSE THAT IS NOT OF YOUR MAKING. IF YOU
WANT TO RERUN IT, ILL OBVIOUSLY LET YOU SUPPLEMENT THE RECORD
‘ON IT, TO ESTABLISH IT IS OTHERWISE RELEVANT, WHICH I IMAGINE IT
MIGHT BE. IF IT WERE COMPLETE.
SOME OF THE, WELL. IT PROBABLY GOES TO WEIGHT. THERE
ARE A FEW ON HERE WHERE YOU-VE GOT SOME PRETTY GOOD LEVEL OF
UNKNOWN SHOWN THAT PROBABLY FACTORED INTO SOME OF THE MODELS
THEY PRESENTED WHERE THEY CONTROL FOR SOME OF THESE. BUT NOT
MANY, SO I DON‘T KNOW WHAT I‘M TO DRAW FROM THE FACT THAT THE
DEFENDANT“S MILITARY RECORD ISN’T IN THERE.
IS THAT A MITIGATING FACTOR OR —-
MS. WESTMORELAND: YOUR HONOR. PART OF THE PURFOSE, IN
ADDITION TO SHOWING SPECIFIC ITEMS, THE REASON FOR INCLUDING AS
1401
KATZ - DIRECT
1 MANY VARIABLES. IS TO INDICATE THE NATURE OF THE DATA SET
2 ITSELF, RATHER THAN ANY PARTICULAR POINT. AND I BELIEVE WE
3 OBJECTED WHEN WE HAD CONTINUING OBJECTIONS AS TO THE RELIABILITY
4 OF THE UNDERLYING DATA AND THIS IS A PORTION OF OUR ARGUMENT
S ADDRESSED TO THE RELIABILITY OF THE UNDERLYING DATA, BASED ON
=) THE NUMBER OF UNKNOWNS IN VARIOUS CATEGORIES THAT EXISTED. AND
7 PERHAPS THE PARTICULAR VARIABLE ITSELF MIGHT BE A QUESTION AS TO
8 THE WEIGHT TO BE ASSIGNED TO THE, THAT PARTICULAR AREA.
? THE COURT: ALL RIGHT, I“M GOING TO SUSTAIN THE
0 OBJECTION, SIMPLY BECAUSE IT DOESN‘T RELATE TO THE DATA BASE ON
11 WHICH THE TABLES WERE MADE, BUT BECAUSE I REALIZE YOU WERE GIVEN
12 THE TAPE ONLY A BIT BEFORE THE HEARING BEGAN, I WILL ALLOW YOU
13 |THE SAME PRIVILEGE I“VE ALLOWED THEM. THAT IS, TO SUPPLEMENT THE
14 TABLE. IF YOU WISH.
15 MS. WESTMORELAND: YOUR HONOR. WE APPRECIATE THE
14 OPPORTUNITY, AND DOCTOR KATZ HAS BEEN SITTING IN THE COURTROOM
37 SINCE THAT TIME AND HAS BEEN UNABLE TO DO VERY MANY UPDATES. HE
18 HAVE ATTEMPTED TO UPDATE AS MANY AS POSSIBLE AND TO THE EXTENT --
ww 1° THE COURT: WELL, I WAS LOOKING DOWN THERE, AND SOME OF
20 THEM SEEM TO ME TO BE HIGHLY RELEVANT CATEGORIES AND OTHERS
21 REALLY DON’T MATTER. I THINK IT HAS SOME RELEVANCY. I CAN SEE
22 HOW IT MIGHT.
23 GO AHEAD.
24 M5. WESTMORELAND: ALL RIGHT, YOUR HONOR. IN THAT
23 CASE. I WOULD LEAVE THE EXHIBIT PROFFERED AND WE WILL OFFER A
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KATZ - DIRECT
SUBSTITUTE COPY AT A LATER TIME OF AN UPDATED TABLE.
THE COURT: ALL RIGHT.
BY MS. WESTMORELAND:
@. DOCTOR KATZ, DID YOU ALSO RUN A SIMILAR EXAMINATION
CONCERNING THE CHARGING AND SENTENCING STUDY?
A. YES, I DID.
®. AND WOULD YOU REFER TO RESPONDENT'S EXHIBIT NUMBER 13,
PLEASE? |
COULD YOU IDENTIFY THAT EXHIBIT?
A. THAT’S A TABLE. COUNTS OF THE NUMBER OF UNKNOWNS FOR
VARIABLES IN THE GEORGIA CHARGING AND SENTENCING STUDY. AGAIN I
LISTED THE VARIABLE ITEM —--
RR. IS THAT THE QUESTIONNAIRE?
A. THATS A QUESTIONNAIRE ITEM, ON THE LEFTHAND SIDE.
THEN I HAVE A COLUMN OF THE NUMBER OF UNKNOWNS.
HERE 1 INTERPRETED THE "U" RESPONSE FOR THE PARTICULAR
ITEM TO BE UNKNOWN, AND THEN A DESCRIPTION OF THE VARIABLE IN
THE THIRD COLUMN.
@. I NOTE THAT DOWN THE TABLE YOU INDICATE UNDER THE COLUMN
"NUMBER OF UNKNOWNS" YOU HAVE THE RESPONSE, OR INDICATION OF
UNKNOWN BY LDF 131 DASH 134A7
A. THOSE REPRESENT THE FOILS FOR THE QUESTION ON WHETHER. OR
THE SERIOUS CONTEMPORANEOUS OFFENSES THAT OCCURRED -—- EXCUSE ME,
THE CONTEMPORANEQUS OFFENSES THAT OCCURRED, AND IT WAS A FOIL
QUESTION, AND THERE WAS NO ALLOWANCE MADE FOR AN "UNKNOWN"
P
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1403
KATZ - DIRECT
RESPONSE.
I DID FIND SOME CASES IN WHICH AN UNINDICATED RESPONSE
HAD BEEN MADE. EITHER THEY WERE ALL LEFT BLANK OR IN SOME CASES
A "U" WAS CODED AND SUBSEQUENTLY IN MY ANALYSIS I TREATED THOSE
AS UNKNOWNS.
BUT 1 HAVE NO WAY OF TELLING PRECISELY WHAT THE EXTENT
OF THE UNKNOWNS ARE FOR ITEMS IN THAT QUESTION. SO I JUST WENT
THROUGH THAT AS UNKNOWN.
@. WHEN WAS THIS TABLE RUN? DO YOU RECALL?
A. THIS TABLE WAS RUN REPRESENTING THE DATA THAT 1 RECEIVED IN
LATE JANUARY.
@. AND HAVE YOU RECEIVED AN UPDATED TAPE SINCE THAT TIME?
A. YES, I HAVE.
@. AND HAVE YOU MADE ANY COMPARISONS BASED ON THAT?
A. YES, I FIND THAT THERE ARE VERY FEW CHANGES IN THE UPDATED
TAPE. SO THERE ARE SOME OF THESE VARIABLES THAT WILL HAVE A
DIFFERENT NUMBER OF UNKNOWNS, BUT NOT A GREAT MANY OF THEM.
THE COURT: 1S THAT TRUE OF ALL THESE TABLES IN THIS
BOOK?
MS. WESTMORELAND: YOUR HONOR. ILL HAVE TO ASK DOCTOR
KATZ ON THAT, AND I THINK WHAT THE COURT MAY FIND IS THAT THIS
MAY NOT HAVE THAT GREAT EFFECT AT A LATER PERIOD OF TIME, BUT
LET ME ASK HIM TO CLARIFY AT THIS POINT.
BY MS. WESTMORELAND:
R. HAVE YOU RERUN CERTAIN OF THE TABLES BASED ON ANY OF THE NEW
1404
KATZ —- DIRECT
DATA SETS YOUVE OBTAINED?
A. YES. I HAVE.
Q@. AND HAVE YOU RERUN ANY OF THEM BASED ON THE TAPE YOU
OBTAINED ON AUGUST 8, I BELIEVE. THE FIRST DATE OF THIS HEARING?
A. YES, I USED THAT DATA TO RUN SOME ADDITIONAL EXPERIMENTS.
@. AND HAVE YOU UPDATED THE TABLES IN THE NOTEBOOK BEFORE YOU
BASED ON EITHER THAT TAPE OR THE TAPE YOU RECEIVED. I WOULD
ASSUME A WEEK OR TWO WEEKS BEFORE THAT PERIOD OF TIME?
A. I DID NOT HAVE AN OFPORTUNITY TO UPDATE ALL THE TABLES.
WHAT I DID WAS I CREATED SOME ADDITIONAL TABLES THAT
UTILIZE THE INFORMATION CONTAINED IN THE UPDATES.
SOME OF THESE TABLES REFLECT INFORMATION THAT WAS FROM
THE PREVIOUS TAPE THAT I HAD, BUT I HAVE RUN ADDITIONAL
EXPERIMENTS FOR WHAT I BELIEVE ARE IMPORTANT PARTS OF MY
ANALYSIS TO USE IN COMPARISON. AND GENERALLY I FOUND FOR THIS
STUDY THAT THERE ARE VERY FEW CHANGES THAT WERE MADE.
@R. IN THE TABLES THAT YDU RERAN, DID YOU FIND ANY CHANGES THAT
AFFECTED THE ANALYSIS THAT YOU HAD DONE?
A. NO.
THE COURT: I AM TROUBLED ABOUT THAT. I‘M NOT UPSET
WITH YOU, I WISH TO MAKE THAT PLAIN. YOU'RE HAVING TO SHOOT A
MOVING TARGET.
BUT I WANT TO FIND QUT WHAT THE RESPONDENTS. I MEAN
THE PETITIONER’S VIEW IS ON THAT. AND THEY/RE IN CONTROL OF THE
DATA, AND THEY KNOW HOW MANY CHANGES WERE MADE FROM THE JANUARY
et eet. See eee en. eee etree. ree. tr. eee. Nett. $l mp. eee — en. a— ri —— — ————— - ——
14035
KATZ - VQIR DIRE
Po
y TAPE IN THE SECOND STUDY WHICH I UNDERSTAND IS THE BASE STUDY
2 FOR A LOT OF THIS, AND IF YOU CONTEND BASICALLY THAT ANY STUDIES
3 THAT HE HAS RUN ARE NOT ACCURATE BECAUSE THEY RE NOT BASED ON
4 THE MOST RECENT INFORMATION ON WHICH YOU RELIED, THEN I THINK
be WERE GOING To SUSPEND AS LONG AS IT TAKES TO RERUN THE TABLES.
ih & MR. FORD: YOUR HONOR, COULD I ASK PERHAPS A COUFLE
7 VOIR DIRE QUESTIONS OF DOCTOR KATZ? MAYBE I CAN MAKE MY
8 POSITION CLEAR ALL AT ONCE.
9 VOIR DIRE EXAMINATION
10 BY MR. FORD:
fo
s
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y @. DOCTOR KATZ, I UNDERSTAND YOU HAVE PRINTED OUT THIS TABLE
12 FROM UPDATED DATA. IS THAT RIGHT?
13 A. TABLE 27?
14 Gl. YES?
135 A. A COMPUTER PRINTOUT?
16 2. YES?
37 A. YES.
18 GB. THIS ISN'T IT?
Ww 1? A. THAT’S CORRECT, THIS IS NOT THE UPDATED TABLE.
20 @. ISNT IT CORRECT THAT YOU ALSO RECEIVED AN UPDATED TAPE ON
21 THIS DATA BASE SOMETIME IN JULY. AS WELL AS A SECOND UPDATED
22 TAPE IN AUGUST?
23 AR. JULY 30, YES.
24 @. AND HAD YOU RECEIVED OTHER UPDATES BETWEEN JANUARY AND THAT
23 TIME, OR WERE THOSE THE ONLY ONES?
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1406
KATZ - VOIR DIRE
A. THAT WAS THE ONLY ONE.
HOWEVER, THERE WERE PROBLEMS WITH SOME OF THE DATA THAT
WAS CONTAINED IN THE UPDATES THAT I RECEIVED JULY 30.
@. WITH REGARD TO THIS PARTICULAR TABLE, THOUGH, YOU HAVE HAD
TIME TO REPRINT THIS FROM THE MOST RECENT VERSION YOU HAVE. IS
THAT RIGHT?
A. WELL, I RECEIVED ANOTHER TAPE AUGUST 8 AND I WANTED TO USE
THE MOST RECENT DATA, BECAUSE I WASN’T SURE WHETHER THERE HAD
BEEN CHANGES BETWEEN JULY 30 AND AUGUST 87
@. I’M SORRY. MY QUESTION IS WHETHER YOU HAVE A PHYSICAL COPY
OF A PRINTOUT OF THIS SAME TABLE FROM THE AUGUST 8 DATA?
A. YES.
R. COUPLE OF OTHER QUESTIONS.
I AM CORRECT IN UNDERSTANDING THAT THIS IS A PRINTOUT
FROM THE TAPE AND NOT A COMPILATION THAT YOU MADE SOMEHOW FROM
THE QUESTIONNAIRES. IS THAT RIGHT?
‘A. I DON’T UNDERSTAND.
Be. THIS IS A PRINTOUT OF THE —-
THE COURT: THE COMPUTER MADE THIS. INSTEAD OF YOUR
MANUALLY MAKING IT.
THE WITNESS: THATS CORRECT.
THE COURT: IS THAT WHAT YOU MEAN, MR. FORD?
MR. FORD: YES, YOUR HONOR.
THE WITNESS: YES, I RAN A COMPUTER FROGRAM TO
CALCULATE THESE UNKNOWNS.
1407
KATZ - VOIR DIRE
1 BY MR. FORD:
2 Q. WHEN YOU CALL THEM UNKNOWN. THAT'S A LABEL YOU“VE ATTACHED
TO THAT DATA. TO THAT DATUM I GUESS IT’S CALLED, THAT CAME QUT
OF THAT COMPUTER MARKED "U", IS THAT RIGHT?
YES.
@. AND DURING THE, IN THE QUESTIONNAIRE ITSELF FOR THE CHARGING
I
>
AND SENTENCING, THAT DATA MEANT DIFFERENT THINGS ACCORDING TO
THE INSTRUCTIONS AT DIFFERENT POINTS, ISN‘T THAT RIGHT?
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A. I DON’T KNOW THAT.
10 MR. FORD: YOUR HONOR, I OBJECT, AT LEAST WITH REGARD
11 TO THIS TAPE. AND TABLE, AND FRANKLY, I“M NOT COMPLETELY CLEAR
12 ON THE DISCOVERY PROCESS HERE. I CAN’T REALLY ADDRESS THAT AT
13 THIS POINT.
14 BUT 1! DO UNDERSTAND THAT AT LEAST ON THIS TABLE THERE
13 1S BETTER EVIDENCE OF WHAT THE CURRENT INFORMATION SHOWS AND I
16 OBJECT ON THAT GROUND AND ALSO ON RELEVANCY GROUNDS, BOTH WITH
17 REGARD TO THE INTERPRETATION OF UNKNOWNS AND ALSO REGARDING THE
13 ULTIMATE SIGNIFICANCE OF WHETHER THERE ARE, QUOTE, UNKNOWNS,
19 CLOSE QUOTES, IN ANY OF THIS DATA. I DON’T KNOW WHERE THATS
20 GOING TO LEAD US OR WHAT IT“S GOING TO MEAN.
21 THE COURT: I DON‘T KNOW WHERE IT“S GOING TO LEAD US OR
22 WHAT IT’S GOING TO MEAN, EITHER. BUT I DON’T HAVE THE SAME VIEW
23 OF THE EVIDENCE THAT YOU DO AS IT RELATES TO THE USE OF
24 "UNKNOWN". NOW, WHERE IT“S CODED LDF 131 THROUGH 134. HE MAY
2S HAVE TAKEN SOME LIBERTIES, BASED ON HIS TESTIMONY OF WHAT HE HAS
1408
1 DONE WITH THAT DATA SUBSEQUENTLY.
[8
BUT I UNDERSTAND HIS TESTIMONY TQ BE THAT WHERE WE HAVE
3 A DISCRETE NUMBER, HE WAS COUNTING THE NUMBER OF "U’S" FOR THAT
4 CATEGORY OF DATA AS REFLECTED ON THE TAPE.
IS THAT RIGHT? (2)
N iB & | THE WITNESS: YES. YOUR HONOR.
7 THE COURT: WELL, I THINK THAT’S RELEVANT AND I WILL
3 ALLOW IT. BUT I“M GOING TO TAKE A MINUTE OR TWO BREAK, BUT
@ BASICALLY, I DON’T INTEND TO SIT HERE FOR EVEN ANOTHER HOUR
10 LISTENING TO THE STATE‘S CASE IF YOU HAVE PREPARED YOUR CASE
11 BASED ON EVIDENCE DIFFERENT FROM WHAT THEY VE PREPARED THEIRS
12 ON.
13 IM NOT MAD WITH YOU, I“M NOT NECESSARILY MAD WITH
14 ANYBODY, BUT I DON’T INTEND TO GO ON WITH TWO SHIPS PASSING IN
1S |THE NIGHT.
|
146 | YALL TALK ABOUT IT AND LET ME KNOW WHERE WE ARE IN
17 ABOUT TEN MINUTES.
13 mr.
w 19 (RECESS TAKEN.)
20 THE COURT: WHERE‘S YOUR LAWYER, MR. BOGER?
21 MR. BOGER: YOUR HONOR, HES OUT AT THIS MOMENT. BUT 1
22 THINK SO FAR AS DISCOVERY MATTERS HAVE BEEN TOUCHED ON, HIS HOPE
23 WAS THAT I COULD SPEAK TO IT, BUT IF YOUR HONOR FREFERS. WE
24 COULD RUN GET HIM RIGHT AWAY.
23 THE COURT: I DONT CARE, BUT LET ME TELL YOU EXACTLY
1409
1 WHERE I THINK I AM.
2 IF THE PETITIONER IS GOING TO OBJECT EITHER TO THE
3 INTRODUCTION OF THE TABLE PREPARED ON LET“S CALL IT QLD
4 EVIDENCE. OR TO OPINIONS BASED IN WHOLE OR IN PART ON OLD
S EVIDENCE AND UNDERSTANDING, IF YOURE GOING TO OBJECT ON THAT
& BASIS, I WOULD BE INCLINED TO SUSTAIN THAT OBJECTION. WHICH
7 WOULD PROBABLY GUT THE STATE‘S CASE TOTALLY.
8 S0 MY QUESTION TO YOU, AND I DO NOT MEAN TO INFER THAT
, I’M TRYING TO PUT YOU ON THE SPOT, I HAVE INDICATED TO BOTH OF
10 YOU THAT WHEN THIS RECORD GOES UP, IF MR. MCCLESKEY HAS NOT DIED
% 4 OF OLD AGE WHEN WE GET THROUGH WITH THE CASE, I DON‘T WANT THERE
12 TO BE SOME SORT OF NIT-PICKY PROBLEM THAT PREVENTS A DECISION ON
13 THE MERITS TO THE EXTENT IT’S POSSIBLE. I SAID SOMETHING VERY
14 CHARITABLE ABOUT MY FINDINGS ABOUT THE BOWERS STUDY. I DON'T
15 FIND THAT THIS CASE FALLS IN THAT CATEGORY. IT’S A SERIOUS
16 CASE. AND I DON’T WANT THE STATE TO BE DISADVANTAGED AT ALL.
17 AND I DON’T WANT YOU TO BE DISADVANTAGED AT ALL. I“M WITH YOU
18 TO AN EXTENT. I THINK IT’S A FAIR OBJECTION TO OBJECT TO A
KA 19 DOCUMENT PREPARED ON THE JANUARY DATA. I THINK IT’S A FAIR
20 OBJECTION TO AN OPINION BASED IN WHOLE OR IN PART ON JANUARY
<1 DATA. IF YOU INTEND TO MAKE THAT OBJECTION, I INTEND TO SUSTAIN
A IT.
23 YOU TELL ME WHETHER YOU INTEND TO MAKE THEM.
<4 MR. BOGER: LET ME TELL YOU MY THOUGHT PROCESSES NOW.
23 WERE CONFIDENT THAT, FOR THE PETITIONER. THAT THE CHANGES THAT
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1410
HAVE BEEN MADE, THE UPDATING AND CLEANING CHANGES. WILL NOT
AFFECT ULTIMATELY THE SUBSTANTIVE ANALYSIS OR CONCLUSIONS THAT
WE HAVE TESTIFIED TO.
HOWEVER. WE WANT THE RECORD. THE FINAL RECORD THIS
COURT LOOKS AT. AND THE RECORD THE COURT OF APPEALS LOOKS AT, TO
BE A RECORD AND DATA THAT IS CLEAN, DATA THAT WE HAVE BASED DUR
[ANALYSIS ON. AND I HAVE CHECKED AND ALL OF OUR REGRESSIONS WERE
DONE ON THE AUGUST 8 TAPE.
WE HAVE NO OBJECTION TO THE INTRODUCTION OF THE RUNS
THAT PROFESSOR, OR DOCTOR KATZ HAS ALREADY INDICATED HE’S DONE
ON THE AUGUST 8 DATA COMING IN. IN OTHER WORDS, WERE NOT GOING
TO FUSS IF THEYRE NOT IN A NOTEBOOK FORM. MY UNDERSTANDING OF
HIS TESTIMONY IS THAT HE HAS RUN THIS TABLE WE’RE TALKING ABOUT
ON THE UPDATED DATA.
THE COURT: I UNDERSTAND HES RUN THIS ONE --
MS. WESTMORELAND: YOUR HONOR, IF I COULD CLARIFY THAT
POINT BRIEFLY.
WHAT DOCTOR KATZ HAS RUN IS A COMPUTER PRINTOUT. WHICH
THEN TAKES CONVERSION INTO THE TABLE FORMAT. IT“S NOT A NICE
PRINTED OUT TABLE FROM THE COMPUTER. IT”S A PRINTOUT THAT IS
GENERATED BY THE PROGRAM AND THE NUMBERS HAVE BEEN MOVED TQ THE
TABLE FROM THAT PRINTOUT.
THERE ARE SOME OF THE LATER TABLES THAT HAVE BEEN RUN ——
MR. BOGER: THE ONLY —~-
MS. WESTMORELAND: I“M SORRY. GO AHEAD.
- 1411
1 | MR. BOGER: I“M SORRY, YOUR HONOR. THE OTHER
. INFORMATION WE HAVE FROM OUR EXPERTS. WITH SAS, S-A-S PROGRAM,
THAT THE TABLES WE“RE LOOKING AT SHOULD BE ABLE TO PRINTED OUT
IN AN AFTERNOON. IT’S A QUESTION OF GIVING THE COMPUTER CERTAIN
9
INSTRUCTIONS AND QUT THEY COME.
3
4
S
2 & SO, YOU KNOW, IN OTHER WORDS. OUR INFORMATION IS THAT
7 THE STATE SHOULD BE ABLE TO GET THEIR TABLES TOGETHER,
8 REASONABLY QUICKLY, AND WE”D LIKE TO SEE THOSE AND HAVE THE
9 COURT RULE ON THOSE.
10 WE“RE NOT TRYING TO OBSTRUCT THE HEARING ON THE OTHER
11 HAND.
12 THE COURT: NO, I INDICATED TO YOU BY TRYING TO
13 INDICATE TO YOU WHAT MY RULING IS THAT I THINK YOUR POSITION IS
14 SOUND AND WELL TAKEN. IM NOT FUSSING. BUT I DON’T WANT A
15 FLAWED RECORD ANY MORE THAN I CAN DO IT.
16 MR. BOGER: I DON’T KNOW WHAT THE STATE’S POSITION IS.
17 WE DIDN‘T HAVE MUCH TIME TO CONFER ABOUT WHETHER TO RECESS
13 THIS AFTERNOON THEY’D BE IN POSITION TO PUT THEIR TABLES IN ON
w 1° UPDATED MATERIAL. THAT CERTAINLY WOULD AFFECT OUR POSITION. I
20 MEAN WHEN THE PETITIONER HEARS THAT THE OBJECTION WILL BE
21 (SUSTAINED TO WHAT MAY BE A GREAT PART OF THE STATES CASE, IS
22 TEMPTING.
23 ON THE OTHER HAND, WE KNOW THIS CASE IS GOING UP AS
24 WELL. WE DON’T WANT TO SNATCH SOME SORT OF VICTORY OUT ON A
23 TECHNICALITY OURSELVES. IF THE RECORD CAN BE COMPLETE, WE THINK
1412
pt
WE CAN WIN ON THE MERITS, NOT JUST ON A TECHNICALITY.
BUT I AM INTERESTED TO HEAR WHAT THE STATE‘S POSITION
ABOUT HOW QUICKLY THEY CAN ASSEMBLE CURRENT DATA FOR THE TABLES.
THE COURT: WELL, LET ME GET HER FIRST TO ADDRESS MY
ASSUMPTION AND THAT IS THAT DOCTOR KATZ’ ABILITIES, CAPACITIES
TO RUN BASED ON THE NEW DATA HAVE BEEN SUCH THAT A LARGE PORTION
OF ALL THESE TABBED INDICES OR DOCUMENTS THAT I HAVE IN THIS
BOOK, ARE BASED ON OLD DATA: AND THAT ANY OPINIONS HE HAS FORMED
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ARE BASED AT LEAST IN PART ON OLD DATA.
10 MS. WESTMORELAND: THAT”S PROBABLY A FAIRLY ACCURATE
11 STATEMENT, YOUR HONOR. I KNOW SOME OF THE TABLES THAT WE HAVE
12 ARE BASED ON NEWER DATA. I DON’T BELIEVE IT’S, IT”S NOT A
13 MAJORITY OF THEM. THAT WOULD BE AN ACCURATE STATEMENT AS WELL.
14 AS TO THE LENGTH OF TIME THAT IT WOULD TAKE. I THINK
13 THAT A HALF DAY MIGHT BE VASTLY OVERSIMPLIFYING THINGS AND I
16 wouLD HAVE TO ——
17 THE COURT: WELL, WERE NOT GOING TO RUN TOMORROW
18 AFTERNOON FOR THE REASONS IVE PREVIOUSLY TOLD YOU, 50 IF WE
w 19 RECESS RIGHT NOW, WE MIGHT AS WELL NOT RUN TOMORROW. FERIOD.
20 WouLD THAT ACCOMMODATE YOU?
21 MS. WESTMORELAND: YOUR HONOR, ILL HAVE TO LEAVE THIS |
22 TO DOCTOR KATZ BECAUSE I DON’T KNOW PRECISELY WHAT IS INVOLVED,
23 AND PERHAPS IF WE COULD GET AN IDEA FROM HIM GENERALLY WHAT HES
24 GOT TO DO AND HOW LONG HE THINKS IT’S GOING TO TAKE TO DO IT,
23 WERE NOT TALKING ABOUT COMPUTER RUNS, AND WE“VE GOT TO MAKE
1413
KATZ ~ DIRECT
[o
y CONVERSIONS INTO A TABLE FORMAT TO BE PRESENTED, WHICH MAY TAKE
2 |SOME TIME. AND IF I COULD GET DOCTOR KATZ TO INDICATE GENERALLY
3 |WHAT HE ANTICIPATES WILL NEED TO BE DONE TQ USE THE LATEST TAFE.
4 WHAT LENGTH TIME ARE WE TALKING ABOUT.
= | -— =.
J 6 JOSEPH L. KATZ
7 |BEING PREVIOUSLY DULY SWORN. RESUMED THE WITNESS STAND AND
8 | TESTIFIED FURTHER AS FOLLOWS:
9 DIRECT EXAMINATION (CONT’D)
10 |BY MS. WESTMORELAND:
11 @. WHAT HAVE YOU GOT TO DO?
12 A. I HAVE TO RERUN ALL MY PROGRAMS THAT”S RELATED TO THESE
13 TABLES.
14 Q@. HOW MANY PROGRAMS. APPROXIMATELY, WOULD THAT BE?
13 A. POSSIBLY 30 OR 40, AND COMPILE THE RESULTS, AND CHECK FOR
16 ACCURACY.
17 PROBABLY THE MINIMUM AMOUNT OF TIME IT WOULD TAKE WOULD
ia BE ABOUT A WEEK.
a 19 MR. BOGER: YOUR HONOR, I CONFERRED WITH CO-COUNSEL.,
20 WE“RE PREPARED TO GU FORWARD ON THE MERITS, USING HIS TABLES
21 UNDER THOSE CIRCUMSTANCES.
22 IN OTHER WORDS, WE ARE MARTIALED HERE AT SOME
23 CONSIDERABLE EXPENSE AND TROUBLE AND WOULD LIKE FOR THIS
24 PROCEEDING TO GO FORWARD. WERE DISAPPOINTED THE STATE SAYS
23 THEY CAN‘T DO IT MORE QUICKLY THAN THAT. AND FREFER A BETTER
————— ——— —— A —————- e———. YI” r——
| 1414
| KATZ - DIRECT
1 RECORD, INDEED WOULD LIKE TO ASK THE STATE TO SUPPLEMENT THE
2 RECORD WHEN PROFESSOR KATZ HAS HAD HIS OPPORTUNITY TQ GET
UPDATED TABLES. (0
WE DONT THINK THE DIFFERENCES ARE GOING TO AMOUNT TO
ANYTHING, IN FACT WERE CONFIDENT THEY ARE NOT, BECAUSE WE'VE
DONE ANALYSES OF OUR DATA BOTH WAYS. WITH AND WITHOUT THESE
CLEANING CHANGES. WE DON’T THINK ITLL MAKE THAT MUCH
DIFFERENCE.
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THE COURT: IF YOULL WAIVE ANY CONSIDERATION OF WEIGHT
10 OR ADMISSIBILITY. I WILL CONTINUE. OTHERWISE, I WILL NOT.
13 MR. BOGER: YOUR HONOR, LET ME JUST CLARIFY.
12 IS THAT ON THE BASIS THE STATE WILL ULTIMATELY
13 SUPPLEMENT WHEN THEY HAVE THEIR UPDATED TABLES?
14 THE COURT: MY INCLINATION IS TO SAY NQ, BECAUSE I HAVE
15 AN IDEA, AND BOTH OF YOU ARE INVITED TO COMMENT, BUT THE FEELING
146 THAT 1 HAVE IS THAT DOCTOR KATZ’ WORK IS SO THOROUGHLY BASED ON
17 HIS JANUARY DATA BASE, THAT SOME CHANGES ARE BOUND TO OCCUR. TO
; 13 THAT EXTENT, YOU MAY WISH TO INQUIRE AS TO WHAT DID, WHY HE DID,
CS 19 WHATS THE DIFFERENCE, YOU KNOW. WE MAY HAVE ANOTHER
20 MINI-HEARING ON WHAT WE“RE DOING NOW, AND I DON‘T INTEND TO DO
21 IT BUT ONCE.
ls MR. BOGER: WELL, ——
23 MS. WESTMORELAND: YOUR HONDR. I THINK I WOULD ALSO
24 POINT OUT AT THIS POINT, WE ARE IN A LITTLE BIT OF A QUANDARY
23 BECAUSE IT’S HARD TO JUST PICK UP A TAPE AND SAY, WELL, HERE ARE
1413
KATZ - DIRECT
1 THE CHANGES THAT WERE MADE. AND SO THIS IS ALL I“VE GOT TO DO
2 OR THIS IS ALL THAT IT WILL INVOLVE.
3 AND TO BE PERFECTLY ACCURATE, AND TO BE SURE THAT WE
HAD ADDRESSED EVERY CHANGE THAT WAS MADE IN THIS TAPE, THEN IT
WOULD PROBABLY BE NECESSARY TO RERUN EVERY PROGRAM, AND I“M NOT
PARTICULARLY URGING THE COURT —-
Fl
5
6
7 THE COURT: WELL, IF I REMEMBER SOMEBODY’S TESTIMONY,
a EITHER PROFESSOR BALDUS’ OR DOCTOR WOODWORTH S. ONE OF THE
9? PROBLEMS THAT WE“VE BEEN DISCUSSING HERE WITH HAVING TOO FEW
0 FOILS HAS BEEN CORRECTED, AS I REMEMBER IT.
11 DON’T I REMEMBER SOME TESTIMONY OF PROFESSOR BALDUS TO
12 THAT EXTENT, THAT -—-
13 PROFESSOR BALDUS: YES, YOUR HONOR.
14 THE COURT: YOU WENT BACK AND ADDED LOST DATA. SO YOU
15 KNOW, YOU MAY NOT EVEN HAVE THAT TACT ANYMORE.
14 MS. WESTMORELAND: OBVIOUSLY I DON’T WISH TO DELAY
17 PROCEEDINGS, BUT WE ARE ALSO FACED WITH A NECESSITY OF HAVING AN
18 ACCURATE AND COMPLETE RECORD AS WELL.
Wo 17 THE COURT: HOW DID YOU THINK YOU WERE GOING TO GET
20 THIS IN IF IT WASNT BASED ON THE SAME DATA BASE MR. BOGERS”
21 CASE WAS EASED ON. MS. WESTMORELAND?
22 MS. WESTMORELAND: WELL. YOUR HONOR, MY INITIAL
23 UNDERSTANDING WAS THAT THE CHANGES, AT LEAST A PORTION OF THEM,
24 WOULD NOT HAVE A SIGNIFICANT EFFECT ON THE RESULTS AND THE
25 ANALYSIS THAT WAS DONE IN THAT BASIS, AND WE WERE ALSO FACED
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1416
KATZ - DIRECT
WITH THE PROBLEM OF DOCTOR KATZ BEING IN COURT AND BEING UNABLE
TO ACTUALLY DO THE COMPUTER RUNS. HE DOESN’T HAVE ACCESS TO THE
COMPUTER AT NIGHT. IT“S ONLY IN THE DAYTIME. AND WE SHARE TIME
WITH THE STATE IN OTHER AREAS, AS WELL.
THE COURT: WELL, MY REPORTER NEEDS TO LEAVE. WHY
DON“T WE ADJOURN, LET YZALL CAUCUS INDEPENDENTLY AND TOGETHER,
AND BETWEEN NOW AND 5:30, WHEN IVE GOT ANOTHER HEARING. COME IN
AND TELL ME WHAT YOU WANT TO DO, UNDERSTANDING, MR. BOGER THAT
AT THE PRESENT. MY INCLINATIONS ARE. A, I BELIEVE YDUR
POSITIONS WELL TAKEN. ILL SUSTAIN IT.
AND, B, I DON’T INTEND TO LET THE STATE FUT ON ITS
REBUTTAL CASE AND THEN CHANGE ALL THE FIGURES AND THEN DO IT
AGAIN.
AND BEFORE I WOULD, WENT FORWARD WOULD EXPECT. NOW,
WOULD EXPECT A WAIVER NOT ONLY OF A WEIGHT ARGUMENT. BUT OF
ADMISSIBILITY ARGUMENT, WHICH YOU MAY NOT WANT TO DO. I DON'T
MEAN TO SUGGEST YOU QUGHT TO.
MR. BOGER: I UNDERSTAND.
THE COURT: I’M JUST TALKING ABOUT IN TERMS OF JUDICIAL
RESOURCES. I1“VE GOT FOUR HUNDRED OTHER CASES. MANY DOF WHICH
INVOLVE IMPORTANT QUESTIONS OF CIVIL RIGHTS. I“M NOT JUST
TALKING ABOUT SOME BIG BUSINESS CASE. AND THE WHOLE FULTON
COUNTY JAIL IS SITTING OUT THERE LIKE A TIME BOMB, AND I WAS
SUPPOSED TO BE HEARING THAT LAST WEEK. AND I CAN'T HEAR IT
BECAUSE I“M HEARING MCCLESKEY. S50 I GOT THINGS THAT ARE MORE
1417
KATZ = DIRECT
po
t | IMPORTANT TO DDO THAN SIT HERE AND ENGAGE IN A FASCINATING
INTELLECTUAL EXERCISE. BASED ON INCOMPLETE DATA.
MR. BOGER: LET ME ASK YOU ONE ADDITIONAL QUESTION, IF
I MIGHT, YOUR HONOR.
ONE OF THE POSSIBILITIES THAT OCCURRED TO US, WE WANT
TO FIND OUT YOUR HONORZS INITIAL INCLINATION ON IT, WOULD BE TO
LET THE STATE GO AHEAD ON THE EVIDENCE THEY HAVE, NOT OBJECT ON
THE GROUNDS OF ADMISSIBILITY OR WEIGHT PER SE, BUT BE ABLE TO
CROSS-EXAMINE DOCTOR KATZ AND SAY. IN EFFECT. ISN‘T IT TRUE THAT
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WHEN YOU RERUN THIS DATA YOU LOSE A GOOD BIT OF THIS?
i1 IN OTHER WORDS, BY CROSS-EXAMINATION WITH THE UPDATED
12 DATA. UNDERCUT HIS TESTIMONY. THAT”S THE WAY —— NOT INTERESTED
13 IN THAT?
14 THE COURT: NO. I WANT HIS OPINION TO BE BASED ON THE
13 SAME DATA AS YOUR OPINION IS BASED ON.
14 AND CONVERSELY AS I HAVE SAID TO YOU EARLIER AND TRIED
17 TO SET A TONE IN THIS THING BY STARTING QUT EARLIER, I DON'T
13 WANT SOMEBODY TO WIN THIS THING ON A TECHNICALITY. IM GIVING
J YOU THE OPTION SINCE THE STATE WASN’T ABLE TO IDENTIFY ALL THEIR
20 ERROR OBJECTIONS OR BASIC PROCESS OBJECTIONS, IVE TOLD YOU I
21 WOULD LET YOU SUPPLEMENT THE RECORD TO THE EXTENT THEY-VE
22 IDENTIFIED ANY. BUT I DON‘T INTEND, THIS IS LIKE AN ENORMOUS
23 PRETRIAL CONFERENCE WHERE WERE PRETRYING THE CASE AND THEN
24 WERE GOING TO HAVE THE REAL CASE NEXT DECEMBER.
23 MR. BOGER: ONE OTHER FACTOR LET ME JUST MENTION TO THE
24
23
1418
KATZ - DIRECT
|
COURT, AND WE WILL BE BACK AND TALK WITH YOU LATER.
TO BE HONEST. WE HAVE LABORED MIGHTILY AND HARD TO GET
OUR SIDE OF THE CASE READY BY THIS POINT AND THE IDEA OF SOME
TWO-WEEK ADJOURNMENT WHILE THE STATES CASE STARTS UP AGAIN, ALL
OF US OUT OF STATE HAVING TQ COME BACK AND STAY HERE CLOSE BY.
TROUBLES ME BOTH WITH RESPECT TO THE ADVANTAGE IT MIGHT GIVE THE
STATE OF SORTS AND WITH RESPECT TO THE DISADVANTAGE IT GIVES US
HAVING PUT OUR CASE TOGETHER AND THE OVERALL CONFIDENCE THAT THE
NUMBERS ARE RIGHT. SO I JUST --
THE COURT: LET ME REVIEW MY VIEW OF THE EQUITIES AS I
SEE THEM JUST S0 WHOEVER LOOKS AT THE RECORD HEREAFTER WILL
UNDERSTAND.
THIS CASE STARTED. I THINK MR. DUMICH UNDERSTOOD. AND
CERTAINLY YOU AND I UNDERSTOOD, THAT YOU WERE BRINGING A
CHALLENGE OF THE TYPE YOU BROUGHT. BASED ON A MUCH MORE
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SOPHISTICATED STUDY, AND THAT WE WANTED TO BEGIN THE DISCOVERY
PROCESS 50 THAT WE COULD PIN THE FACTS DOWN, KNOW WHAT THE FACTS
WERE, KNOW WHAT EVERYBODYS POSITION WAS PRIOR TO THE HEARING.
IT SEEMS TO ME THAT EVERYBODY HAS BEEN REASONABLY
AGREEABLE.
THE OTHER. GOOD MOTIVE PROBABLY HAS CAUSED THIS MORE
THAN ANYTHING ELSE, FOR, AS I UNDERSTAND IT, AS SOON AS THE
STATE STARTED RAISING OBJECTIONS, DOCTOR BALDUS STARTED
CORRECTING ANY MISTAKE THAT WAS LEGITIMATE. SO THATS GOOD
MOTIVE. I THINK THE MAN‘S TRYING TO BE ACADEMICALLY HONEST. I
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CAN UNDERSTAND THAT. I THINK THAT-3 THE HIGHEST MOTIVE OF A
SCIENTIST.
BUT BETWEEN THE TIME WHEN WE THINK THE FACTS ARE FIXED.
WHEN YOU FILED A MOTION MAKING CERTAIN ALLEGATIONS AND THE TIME
WE COME TO THE HEARING, THE FACTS AREN’T FIXED -- I DON’T KNOW
HOW MUCH. BUT THEY“RE CHANGED. QUT OF GOOD MOTIVE.
S50, HES DOING WHAT A GOOD SCIENTIST OUGHT TO DO AND
REFINING HIS DATA AND REFINING HIS ARGUMENTS TO THE LAST MINUTE.
AND WE’RE., WE HAD A CONFERENCE ON THIS. WHAT, TEN DAYS BEFORE WE
STARTED?
MR. BOGER: THAT“S RIGHT. YOUR HONOR.
THE COURT: AND AT THAT POINT IN TIME, YOU PROMISED
FOUR DAYS HENCE TO HAVE THE NEW DATA BASE THERE. AND YOU DID.
ABOUT FOUR DAYS HENCE, MAYBE FIVE, BUT SOMETHING LIKE
THAT. SO THEN THE STATE SEES IT. AND THEN AS I UNDERSTAND IT.
ON THE DAY OF THE HEARING, YOU GIVE THE STATE SOME NEW DATA.
ALL OF THAT I THINK IN THE VERY BEST. AT LEAST SHE THINKS SHE
GOT NEW DATA. I DON‘T KNOW WHETHER SHE DID OR NOT, BUT THAT’S
SOMETHING WE NEED TO DISCOVER. AT LEAST IN JULY SHE GOT NEW
DATA, I THINK WE“RE CLEAR ON THAT. SO I CAN‘T BE CRITICAL OF
WHY THAT OCCURRED. BECAUSE THAT’S GOOD MOTIVE.
YOU KNOW, I GUESS I COULD AS A JUDGE HAVE BEEN HARDER NOSED
ABOUT IT AND HAVE SAID, OKAY. DOCTOR BALDUS, YOUZRE FROZEN IN
TIME WITH YOUR MISTAKES. BUT I DIDNT, AND HE DIDN’T CHOOSE TO
BE. AND SO THE REFINEMENT PROCESS CONTINUED.
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NOW WE COME TO COURT. AND A GOOD LAWYER IS SUPPOSED TO
DO TWO THINGS. A GOOD LAWYER IS SUPPOSED TO BE. A, READY. AND,
B, ANNOUNCE READY.
M3. WESTMORELAND ACCOMMODATED AT LEAST THE SECOND BY
ANNOUNCING READY. AND SHE MAY HAVE THOUGHT SHE REALLY WAS, BUT
NOW WE, HAVE LEARNED SHE REALLY ISN‘T, IN PART THROUGH ND REAL
CAUSE OF HER OWN, BUT AT LEAST SHE LET ALL OF THIS GET STARTED
WHEN THERE WERE SOME PROBLEMS WITH HER CASE.
SO I THINK THERES GOOD MOTIVE IN TERMS OF TRYING TO
PUSH IT ON THOUGHT. BUT ON THE OTHER HAND, AND THERE‘S A MISTAKE
PERHAPS IN LETTING IT GO FORWARD, BUT THE MISTAKE IS IN PART
GENERATED BECAUSE YOU CHANGED THE FACTS. SO. THAT'S WHY I SAID
I’M NOT MAD WITH ANYBODY. BUT WE‘VE GOT AN IMPORTANT ISSUE, AND
1 PRESUME THE LEGAL DEFENSE FUND AND THE STATE ATTORNEY
GENERALS OFFICE DOESN‘T WANT TO GO THROUGH THIS BUT ONCE. WE
MIGHT AS WELL DO IT RIGHT.
SO GO TALK ABOUT WHAT WE CAN DO TD DO IT RIGHT AND THEN
COME TALK TO ME. OKAY?
MR. BOGER: FINE, YOUR HONOR.
THE COURT: ALL RIGHT.
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{COURT ADJOURNED FOR THE DAY.)
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C-E~-R=T-1-F-I1-C-A-T-E
UNITED STATES OF AMERICA
NORTHERN DISTRICT OF GEORGIA
I. JIM PUGH, OFFICIAL COURT REPORTER OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA. DO HEREBY CERTIFY THAT THE FOREGOING [ PAGES
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CONSTITUTE A TRUE TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE
10 SAID COURT HELD IN THE CITY OF ATLANTA, GEORGIA, IN THE
i1 MATTER THEREIN STATED.
12 IN TESTIMONY WHEREOF I HAVE HEREUNTO SET MY
13 HAND ON THIS C DAY OF C
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JIM PUGH
17 OFFICIAL COURT REPORTER
NORTHERN DISTRICT OF GEORGIA
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