Trial Proceedings Transcript Vol. 5

Public Court Documents
August 12, 1983

Trial Proceedings Transcript Vol. 5 preview

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  • Case Files, McCleskey Legal Records. Trial Proceedings Transcript Vol. 5, 1983. 7d6cfec3-5aa7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/234e8fc7-80af-4aad-9c55-3ab6ef422b88/trial-proceedings-transcript-vol-5. Accessed April 28, 2025.

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    { 

| 247 

; 
2 IN THE UNITED 3TATES DISTRICT COURT 

3 FOR THE NORTHERN DISTRICT OF GEORGIA 

a ATLANTA DIVISION 
: ig 

&  |WARREN MCCLESKEY ) DOCKET NO. CB1 2434A 

7 ) | 

PLAINTIFF, ) ATLANTA, GEORSIA | 

: | 5 ) AUGUST 12, 1983 

[WALTER D. ZANT, WARDEN, ) 
13 ) 

| ) 
ty DEFENDANT. ) 

2 BAT 
wid VOLUME V 

: 14 | TRANSCRIPT OF PROCEEDINGS     
: 4 

! 

ib | JUDGE. 
| 

i 

| 
| 

ig APPEARANCES OF COUNSEL: i 

” | 
w 19 FOR THE PLAINTIFF: JOHN CHARLES BOGERY TIMOTHY K. FORD 

| AND ROBERT H. STROUP, 

20h | | 
| 

21  |FOR THE DEFENDANT: MARY BETH WESTMORELAND AND SUSAN V. 
| BOLEYN. | 

22 ae | 

23 | 
| JIM PUGH ; 

ol GRE | OFFICIAL COURT REPORTER 

ROOM 23467, 7% SPRING STREET: T.W. 

23 ATLANTA, SEORGIA 20303 

  | 

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aad WITNESSES 

DIRECT ©CROSS REDIRECT RECROSS 

WITNESSES FOR THE PLAINTIFF: 

BALDUS, DAVID C. 834 

  

        
 



  

      

  

  

  

    

549 

1 DOCUMENTARY EVIDENCE 

2 MARKED RECEIVED 

3 | DB-86 ome 872 
| pB-87 a72 27s 

4 DE-8% ars £85 
NB=90 881 88% 

5 DBE-91 £os S64 
® DB-92 ag7 893 

& DB-93 394 902 
DB-94 896 202 

7 DB-95 204 214 
DB-96 216 022 

8 DB-97 232 938 
DB-96A 934 938 

9 DB-98 929 9240 
DB-99 : 943 

10 DB-100 047 
DB-101 953 

11 DB-102 954 
DE-103 261 963 

12 DB-104 264 972 
DB-10% 973 974 

13 DB-1064 978 979 
DB-107 280 o81 

14 DB-108 . 983 285 
DB-109 $92 993 

15 DB-110 997 98 
DB-111 1000 100% 

16 | 

17 

18 

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21 | 

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830 

1 (ATLANTA, FULTON COUNTY, GEORGIA AUGUST 12, 1983, 

2 IN OPEN COURT.) 

THE COURT: LET ME STATE TO YOU THE OPINION OR THE 

THOUGHT THAT I HAVE, AND THEN GET YOUR COMMENTS ON IT. 

3 

4 

S 

& BECAUSE OF THE CARE YOU AND MR. FORD HAVE TAKEN IN 

7 AUTHENTICATING OR ACCREDITING DOR WHATEVER THE PROFER WORD IS THE 

38 EVIDENCE YOU“RE PRESENT ING. WE HAVE SPENT A LOT OF TIME ALREADY 

@ AND 1 HAVE NOT BEEN ABLE YET TO FULLY UNDERSTAND THE POSITION OF 

10 |THE STATE WITH REFERENCE TO THIS DATA. 

i1 I KNOW SOME THINGS THAT THEY FEEL. BUT I DON’T KNOW ALL 

12 THE THINGS THAT THEY FEEL, AND PARTICULARLY BEYOND A GENERAL 

13. RELEVANCY OBJECTION WHICH IS, ALL THIS IS REAL INTERESTING, BUT 

14 IT DOESN‘T SHOW THAT MCCLESKEY WAS DISCRIMINATED AGAINST. 

15 AND I AM UNABLE TO REALLY APPRECIATE AND YOU MAY BE, 

16 TOO, THE MAJOR PROBLEMS THAT THEY FEEL ARE IN THE STATISTICAL 

17 STUDY. 

18 I THINK IT WOULD PROBABLY BE MOST EFFICIENT AND ORDERLY 

Ww 19% IF YOU WOULD FINISH WITH THIS WITNESS, FINISH WITH THE 

20 STATISTICIAN THAT COLLABORATED WITH HIM, AND NOT PUT ON YOUR 

21 SECOND EXPERT —- I DON’T KNOW IF YOU HAVE ANYTHING ELSE. BESIDE 

22 PROFESSOR BALDUS AND THE STATISTICIAN -—- AND THEN LET“5 HEAR 

23 WHAT THE STATE HAS TO SAY ABOUT THE VALIDITY OF THE STUDY; SAVE 

24 YOUR SECOND EXPERT AS A REBUTTAL WITNESS S0 THAT WE CAN DEAL 

23 WITH HIM ONLY ON THOSE THINGS WHICH ARE IN ISSUE.       
 



  

  
  

  

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MR. BOGER: LET ME CONFER WITH CO-COUNSEL FOR A MOMENT, 

[ YOUR HONOR. 

YOUR HONOR. THAT SEEMS ACCEPTABLE TO US. 

THE ONE QUESTION I WOULD HAVE. AS YOU KNOW, PROFESSOR 

BERK HAS BEEN UNDER THE RULE. IF PROFESSOR BERK IS TO BE A 

REBUTTAL WITNESS, ALTHOUGH WE DON’T KNOW WHEN HE WOULD BE HERE, 

IF THE STATE-"S CASE GOES FORWARD, WE WONDER WHETHER THERE WOULD 

BE ANY PROBLEM UNDER THOSE CIRCUMSTANCES. HAVING HIM EXEMPTED 

FROM THE RULE SO HE CAN HEAR WHAT THE STATE HAS TQ SAY AND 

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TESTIFY AS A REBUTTAL WITNESS. 

11 THE COURT: THE FROPOSITION HAS SOME APPEAL. MS. 

12 WESTMORELAND. WHAT SAY YE. 

13 MS. WESTMORELAND: YOUR HONOR, I WOULD STILL HAVE THE 

14 SAME CONCERNS THAT 1 HAVE ABOUT THE WITNESS REMAINING IN THE 

15 COURTROOM TO HEAR OUR ENTIRE TESTIMONY, BECAUSE I UNDERSTAND HIS 

146 TESTIMONY IS BASICALLY IN RELATION TO HIS REVIEW OF PROFESSOR 

17 BALDUS” REPORT AND HIS CONCLUSIONS. 

13 THE COURT: WHAT IS HIS EXPERTISE? 

oo 19 MR. BOGER: YOUR HONOR, MR. FORD COULD SPEAK TO THAT. 

20 MR. FORD: YOUR HONOR, PROFESSOR BERK IS A FROFESS0OR. I 

21 BELIEVE, IN THE DEPARTMENT OF SOCIOLOGY, UNIVERSITY OF 

22 CALIFORNIA AT SANTA BARBARA. 

23 | IN BRIEF HE IS. AMONG OTHER THINGS. ONE OF THE TWELVE 

24 ~~ |PEOPLE WHO WAS ON A NATIONAL ACADEMY CF SCIENCE REVIEW BOARD OF 

23 ALL THE LITERATURE RELATIVE TO RACIAL DISCRIMINATION IN           
  

  

 



  
  

  

  

852 

1 SENTENCING.   | ME‘S ALSO VERY EXPERIENCED IN THIS KIND OF DATA 

| GATHERING AND ANALYSIS. 

HE IS FAMILIAR AT THIS POINT WITH PROFESSOR BALDUS 

& WORK, AND UF TO AND INCLUDING HIS MOST RECENT REPORTS WHICH ARE 

BEFORE THE COURT AND COMING IN BEFORE THE COURT, AS WELL AS 

~~
 

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DOCTOR KATZ REPORT CRITICIZING THOSE, AND AS THE COURT HAS 

INDICATED OR AS MR. BOGER”S INDICATED. WE HAVE KEPT HIM UNDER 

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THE RULE PURSUANT TO THE COURT’S SUGGESTION REGARDING ANY 

10 INFORMATION AS TO WHAT HAS TRANSPIRED IN COURT. 

11 BUT IT WAS OTHER ANTICIPATION THAT BECAUSE I THINK 

12 DIFFERENT CONSIDERATIONS THE COURT MAY APPLY TO DOCTOR KATZI® -—— 

13 THE COURT: YOU HAVEN‘T ANSWERED MY QUESTION, COUNSEL. 

14 MR. FORD: I-“M SORRY, 

13 | THE COURT: WHAT IS HIS EXPERTISE AND HOW IS IT GOING TO 

16 BE USED IN THIS CASE? 

17 MR. FORD: HIS EXPERTISE IS BOTH WITH REGARD TO THE 

ig SPECIFIC STATISTICAL AND DATA GATHERING TECHNIQUES THAT HAVE 

@ 12 BEEN UTILIZED HERE: THE ANALYTICAL TECHNIQUES AND THE BROAD 

20 PERSPECTIVE OF THE QUALITY OF THIS STUDY WITH REGARD TO THE 

21 TOTAL PICTURE, AND WITH REGARD TO, INSOFAR AS IT'S A REBUTTAL 

22 WITNESS, 1 THINK WE WILL SHOW THAT HE IS PARTICULARLY QUALIFIED 

23 TO ADDRESS SOME OF THE SPECIFIC ANALYTICAL CONCERNS THAT HAVE 

24 BEEN RAISED BY DOCTOR KATZ” REPORT. 

25 THE COURT: HE HAS NOT INDEPENDENTLY PERFORMED ANY OF       
  

 



  

  

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MANIPULATION OF THE DATA? 

MR. FORD: THAT-S CORRECT. YOUR HONOR. MY 

UNDERSTANDING, HE HAS REVIEWED —- 

THE COURT! AND IS HERE PRIMARILY TO VALIDATE THE 

METHODOLOGY? 

MR. FORD: THATS CORRECT, YOUR HONOR. 

MR. BOGER: YOUR HONOR, -- | | 

MR. FORD: AND TO GIVE THE COURT SOME PERSPECTIVE AS TO 

WHERE THIS FITS IN THE TOTAL SCHEME OF POSSIBLE THINGS THAT CAN 

BE DONE AND HAS BEEN DONE IN THIS KIND OF RESEARCH. 

MR. BOGER: YOUR HONOR, 1 BELIEVE 1 NEED TO TALK A 

LITTLE BIT FURTHER WITH MR. FORD ABOUT THIS. BUT THAT PROFESSOR 

BERK MAY AT SOME POINT LOOKED AT SOME OF THE DATA. AND I DON‘T 

KNOW THE EXTENT OF THAT, BUT WE MIGHT WANT TO CONFER A LITTLE 

MORE ON THAT BEFORE GIVING YOU A FINAL ANSWER. 

THE COURT: AFTER FOUR DAYS OF TESTIMONY, WHERE WE ARE 

IS THAT A STATE-OF-THE-ART STUDY HAS BEEN DONE WHICH SHOWS THAT 

RACE OF THE VICTIM HAS SOME EFFECT. ALTHOUGH IT DOES NOT OPERATE 

UNIFORMLY THROUGHOUT THE SYSTEM AND IS NOT THE SOLE EFFECT IN 

PREDICTING WHO MIGHT GET THE DEATH PENALTY. THAT’S WHAT WE-VE 

GOT AFTER FOUR DAYS, AND I THINK AT THIS POINT IN TIME. IT MOVES 

FROM THE SOCIAL SCIENCE FIELD INTO THE LEGAL FIELD. 

1/M JUST GIVING YOU AN IMPRESSION. HAVING ONLY HEARD 

YOUR SIDE OF THE STORY. AND HAVING NOT EVEN HEARD ALL OF 

THAT. 

  

  

  

 



  
  

  

  

  

  

RALDUS - DIRECT 

1 I THINK I WOULD BE INCLINED TO LET HIM OUT FROM UNDER 

2 THE RULE, AND RESTRICT YOU TO THE USE OF HIM SOLELY AS A 

3 REBUTTAL EXPERT. 

4 MR. BOGER: ALL RIGHT, YOUR HONOR. 

. MR. FORD: THANK YOU. 

A 6 THE COURT: WHICH MEANS THAT HE REBUTS WHAT THE STATE 

3 SAYS. 

8 MR. BOGER? FINE, YOUR HONOR. I THINK THAT’S 

9 ACCEPTABLE. 

10 THE COURT: ALL RIGHT. GO AHEAD. 

11 MR. FORD: IF THE COURT PLEASE, WITH REGARD TO MY 

12 PREVIOUS REMARKS, MAY I BE HEARD FOR JUST A MOMENT? I HAVE NOT 

12 AT THIS TIME GOTTEN TO THE POINT OF FULLY PREPARING PROFESSOR 

14  |BERK, AND IF I MISSTATE ANYTHING ABOUT WHAT HE ULTIMATELY 

15 |TESTIFIES TO, IT“S SIMPLY MY LACK OF PREPARATION AT THIS POINT. 

16 | eel 

17 DAVID C. BALDUS, 

13 BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND 

ww 19  |TESTIFIED FURTHER AS FOLLOWS: 

20 | DIRECT EXAMINATION (CONTD) 

21 |BY MR. BOGER: 

22 A. PROFESSOR BALDUS, I BELIEVE AT THE CLOSE OF THE TESTIMONY 

23 YESTERDAY. YOU HAD BEGUN TO EXPLAIN WHY YOU HAD FOCUSED IN ON 

24 CERTAIN SUB-CATEGORIES OF CASES WITHIN YOUR DATA BASE CASES, I 

25 BELIEVE YOU TESTIFIED, IN WHICH THE DEATH SENTENCING RATES WERE     
  

 



  

  
  

  

BALDUS ~ DIRECT 

1 HIGHER THAN IN SOME OTHER CATEGORIES. AND MORE SFECIFICALLY 

2 THAN THAT, ON THE B2 AND B7 AGGRAVATING CIRCUMSTANCE CASES. 

WOULD YOU PLEASE BRIEFLY REVIEW FOR US THE SIGNIFICANCE 

OF DB-85 IN THAT REGARD? 

3 

4 

5 A. YES. THE PURPOSE OF THE PARTICULAR FOCUS ON B7 AND B2 CASES 

& WAS THAT THOSE CASES ACCOUNT FOR A VERY HIGH PROPORTION OF ALL 

7 THE DEATH SENTENCES THAT ARE IMPOSED IN THE GEORGIA DEATH 

8 SENTENCING SYSTEM. 

2 I WAS PARTICULARLY CONCERNED ABOUT HOW CASES WERE 

10 TREATED WITHIN THAT CATEGORY. AND TABLE 34, WHICH IS FROM THE 

11 REPORT, WHICH IS EXHIBIT DB-85. PRESENTS AN OVERVIEW OF THE 

32 RESULTS OF THE STATISTICAL ANALYSES THAT WERE DONE ON THE CASES 

13 FALLING IN THE B2 AND B7 CATEGORIES. 

14 AND WHAT IS APPARENT IS THAT WITHIN THE B2 CASES, WE 

13 SEE RACE OF VICTIM EFFECTS. WE SEE THEM ALSO IN THE B7 

16 CATEGORY; AND WE SEE, AS WE WILL, STRONG RACE OF DEFENDANT 

17 EFFECTS IN THE B7 CATEGORY OF CASES. 

18 @. WE THEN TURNED TO DB-8&, MARKED FOR IDENTIFICATION, AND YOU 

19 WERE GOING TO EXPLAIN TO US HOW YOU HAD DONE SOME 

20 SUBCATEGORIZATION, I BELIEVE, WITHIN THE B2 GROUP OF CASES. 

21 CAN YOU CONTINUE THAT ANALYSIS? 

= A. YES. THE, THE METHOD WE USED TO COLLECT DATA INVOLVED THE 

23 PREPARATION OF A DETAILED SUMMARY OF EACH CASE, AND IT FROVIDED 

24 AN OPPORTUNITY TO ANALYZE IN A MORE FINE-GRAIN FASHION. USING 

23 QUALITATIVE JUDGMENTS AS WELL AS SIMPLY STATISTICAL JUDGMENTS       
  

 



  

  

  
  

  
  

  

356 
BALDUS - DIRECT 

ABOUT THE FACTORS THAT SHOULD BE USED TO CONTROL FOR THE FACTORS 

THAT MIGHT AFFECT THE DEATH SENTENCING DECISIONS. 

'@. HOW DID YOU BREAK THOSE CASES QUT? 

A. WE STARTED IN THIS ANALYSIS. I WOULD SAY WE CONDUCTED THIS 

ANALYSIS WITH RESPECT TO FOUR OR FIVE OF THE SPECIFIC STATUTORY 

AGGRAVATING FACTORS. 

| THEY WERE PARTICULARLY IMPORTANT WITH REGARD TO 

STATUTORY AGGRAVATING FACTORS WHERE THE SAMPLE SIZE WAS SO SMALL 

THAT A STATISTICAL ANALYSIS WAS NOT POSSIBLE, FOR THE PURPOSES 

OF CONTROLLING FOR BACKGROUND FACTORS. 

WE FOCUSED HERE ON A LARGER POOL OF CASES, BECAUSE 

THESE ARE EXTREMELY IMPORTANT IN TERMS OF DETERMINING WHO 

RECEIVES A DEATH SENTENCE. 

@. BY LARGER POOL YOU MEAN? 

A. THE B2 CASES. 

@. ALL RIGHT. 

A. WE PULLED THE B2 CASES OUT OF THE CHARGING AND SENTENCING 

STUDY THAT WE HAD IDENTIFIED AND WE PULLED ALL THE B2 CASES OUT 

OF THE PROCEDURAL REFORM STUDY. AND AS A CONSEQUENCE, WE WERE 

ABLE TO OBTAIN A SAMPLE OF 438 CASES. 

WE CALCULATED RACIAL EFFECTS WITHIN THAT GROUP, AND WE 

SAW THEM. THEY ARE PRESENTED IN ROW 1 OF DB-8&, SHOWS A, A 

STRONG RACIAL DISPARITY WHICH 1S. HAS A HIGH LEVEL OF 

STATISTICAL SIGNIFICANCE. 

HOWEVER, THERE IS A LOT OF VARIETY AMONG THE B2 CASES,     
  

 



    

  

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| BALDUS - DIRECT 

50 WE SOUGHT TO CONTROL FOR THE FURTHER DIMENSIONS OF THOSE 

PARTICULAR CASES. 

AND WE DID SO FIRST BY SORTING OUT THE ARMED ROBBERY 

CASES, AND THOSE ARE REPRESENTED IN ROW 2. PART 2, RATHER. OF 

DB-86. AND YOU CAN SEE THAT WHEN YOU LOOK AT ALL ARMED ROBBERY 

CASES ALONE, THAT THE STRONG RACIAL EFFECT WITH RESPECT TO THE 

RACE OF THE VICTIM PERSISTS. THERES A 29 PERCENTAGE POINT 

DIFFERENCE IN THE RATE AT WHICH DEFENDANTS INVOLVED IN ARMED 

ROBBERY RECEIVE DEATH SENTENCES BETWEEN WHITE AND BLACK VICTIM 

CASES. 

THE COURT: WHAT ARE YDU CONTROLLING FOR HERE? 

THE WITNESS: JUST ARMED ROBBERY. YOUR HONOR. 

THEN WE CONTINUED TO SUB~CATEGORIZE ARMED ROBBERY. 

| DOWN UNDER PART 2, Bl, WE SORT THE ARMED ROBBERY CASES INTO 

FURTHER SUB-CATEGORIES. THE FIRST CATEGORY IS ARMED ROBBERY 

WITH KIDNAP, ARSON OR BURGLARY. 

THE NEXT CATEGORY IS ARMED ROBBERY WITH MULTIPLE 

VICTIMS. 

NEXT IS ARMED ROBBERY WITH SOME OTHER CONTEMPORANEOUS 

OFFENSE. | 

AND YOU CAN SEE THAT THESE TEND TQ BE THE MORE 

AGGRAVATED TYPE OF ARMED ROBBERY CASES AND THE RACIAL EFFECTS 

PERSIST, ALTHOUGH ONE NOTES THAT AGAIN THE SAMPLE SIZES START TO 

DIMINISH WHICH IS INEVITABLY THE CASE WHEN YOU BEGIN TO CONTROL 

FOR A NUMBER OF FACTORS USING THIS KIND OF METHODOLOGY OF CROSS         
  

  

 



  

  

  

  

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BALDUS ~ DIRECT 

1 | TABULATION, YOU BEGIN TO LOSE SAMPLE SIZE. 

rN
 HOWEVER, I THINK IT’S IMPORTANT TO NOTE THAT THE KEY 

| 

3 | CHARACTERISTIC OF THESE TABLES IS THE PATTERN. THAT EVEN THOUGH 

3 YOU LOSE STATISTICAL SIGNIFICANCE AS THE SAMPLE SIZE DROPS. YOU 

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STILL SEE THE PATTERN OF THE EFFECT. IT”S NOT THE LACK OF 

& EFFECT THAT LOSES THE SIGNIFICANCE, BUT IT’S THE LACK OF THE 

? SAMPLE SIZE. THE DROP IN THE SAMFLE SIZE THAT AFFECTS THE LEVEL 

8 OF STATISTICAL SIGNIFICANCE. 

? I MAKE THAT COMMENT AS A GENERAL OBSERVATION ABOUT 

0 INTERPRETING DATA WHEN ONE IS TRYING TO CONTROL FOR FACTORS. AND 

11 IN THE PROCESS REDUCES THE SAMPLE SIZE. THE PURPOSE OF A TEST 

12 OF STATISTICAL SIGNIFICANCE IS TO GIVE YOU A SENSE OF THE 

12 LIKELIHOOD THAT WHAT YOU‘RE SEEING IS THE RESULT OF CHANCE 

14 FACTORS. RATHER THAN REAL EFFECTS IN THE SYSTEM. 

15 A TEST OF STATISTICAL SIGNIFICANCE SPEAKS TO ONE 

1& SAMPLE. WHEN ONE SEES A PATTERN OF RESULTS ACROSS MANY SAMPLES 

17 WITH THE SAME EFFECT DEMONSTRATED, THAT IS ADDITIONAL EVIDENCE 

18 THAT SUGGESTS THAT IS NOT A CHANCE RESULT, EVEN THOUGH ALL WERE, 

w 19 A NUMBER OF THEM MAY NOT THEMSELVES INDEPENDENTLY ACHIEVE 

20 STATISTICAL SIGNIFICANCE. 

21 FINALLY. WE GOT DOWN TO THE GROUP WHERE WE HAD ARMED 

22 ROBBERY AND THERE WAS NO OTHER CONTEMPORANECUS OFFENSE. AND THAT 

23 CONSTITUTES A FAIRLY LARGE POPULATION OF CASES. THOSE ARE THE 

24 CASES SPECIFIED UNDER 2B SUBR4 ON THE BOTTOM OF THE FIRST PAGE OF 

Fa] DB-846, AND THIS PROVIDED AN OPPORTUNITY TO FURTHER SUBDIVIDE THE     
  

 



  

  

  

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8389 

BALDUS -~ DIRECT 

CASES, AND CONTROL ON THE BASIS OF QUALITATIVE JUDGMENTS ABOUT 

WHAT WERE THE IMPORTANT FACTORS IN THESE CASES THAT WOULD 

DETERMINE THEIR DEGREE OF DEATH WORTHINESS. AND WE ESTABLISHED 

A SYSTEM FOR CATEGORIZING THESE CASES. 

THE COURT: "MAY I ASK YOU A QUESTION -- 

THE WITNESS: YES, YOUR HONOR. 

THE COURT: ~—- BEFORE YOU LEAVE WHAT YOU JUST TESTIFIED 

TQ. 

IF 1“M READING THIS CHART RIGHT, THE COLUMN, OR LINES 

ROMAN NUMERAL II, CAPITAL A AND B THROUGH IV DO SHOW A PATTERN 

OF DISCRIMINATION BASED ON THE RACE OF THE DEFENDANT, BUT DO NOT 

ON BALANCE SHOW A PATTERN BASED ON RACE OF THE VICTIM. 

IS THAT FAIR? 

THE WITNESS: NO, YOUR HONOR. THE, THE WAY THIS TABLE 

IS CONSTRUCTED IS AS FOLLOWS: 

THE COLUMN C AND D, IF YOUR HONOR WOULD LOOK AT THE 

‘CAPTION ON COLUMN C AND D, YOU CAN SEE THERE THE WAY WE 

DESCRIBED THIS, THIS IS A COLUMN THAT MERSURES RACE OF VICTIM 

EFFECTS CONTROLLING FOR THE RACE OF THE DEFENDANT. THAT IS. IN 

THESE TWO COLUMNS, WE HAVE IDENTIFIED THE CASES THAT INVOLVE A 

BLACK DEFENDANT AND A WHITE VICTIM AND A BLACK DEFENDANT AND A 

BLACK VICTIM. BY DOING THAT WE SAY WE HAVE CONTROLLED ON, 

BLOCKED ON THE RACE OF THE DEFENDANT. 

THE THING THAT VARIES BETWEEN THESE TWO SUBSETS OF 

CASES IS THE RACE OF THE VICTIM. THE RACE OF THE DEFENDANT IS     
  

    

 



    

  

  

  

  

  

8460 

BALDUS - DIRECT 

1 (CONSTANT IN THE CASES, AS IS ALSO CONSTANT THE TYPE OF OFFENSE 

AND THE OTHER CHARACTERISTICS THAT ARE SPECIFIED IN THE 2 

3 LEFT-HAND MARGIN. SO THIS MEASURES, THIS TABLE, 38B, MEASURES 

4 RACE OF VICTIM EFFECTS, AND YOU CAN SEE QVER ON THE RIGHTHAND 

3 SIDE OF DB-8&. COLUMNS G AND H. THERE WE ARE CONTROLLING AGAIN 

a & |FOR THE RACE OF THE DEFENDANT BY —- 

~J
 THE COURT: THATS WHAT I THOUGHT I WAS LOOKING AT. 

© NOW. LET ME COME BACK AT YOU, LOOKING AT YOUR DATA 

? ANOTHER WAY. 

10 THE WITNESS: YES. 

11 THE COURT: WE HAVE TWO RACIAL VARIABLES. ONE IS THE 

12 DEFENDANT, AND ONE IS THE VICTIM. 

13 IN A SOCIETY WHERE YOU MAKE THE ASSUMPTIONS THAT YOU 

14 MAKE BASED ON THE LITERATURE, WHICH I BELIEVE IS THE NICE WAY 

15 YOU HAVE PUT IT HERETOFORE, IF SOCIETY WERE REALLY SELECTING 

16 KILLERS OF WHITES TO THE EXCLUSION OF BLACKS AND YOU CONTROLLED 

17 FOR THE RACE OF THE DEFENDANT, THEN YOU SHOULD SEE THAT WHERE 

18 THE DEFENDANT IS WHITE AND THE VICTIM IS WHITE AND BLACK. BUT 

19 IF I’M READING THIS TABLE RIGHT, THE IMPOSITION OF THE DEATH 

20 PENALTY RATE IS THE SAME. UNDER 5 AND H, WHERE YOU'VE GOT A 

21 WHITE DEFENDANT. 

22 SO WOULD IT BE FAIR TO SAY THAT THIS TABLE SAYS THAT 

23 SOCIETY GETS UP TIGHT WHEN A BLACK DEFENDANT KILLS A WHITE 

24 VICTIM, WHICH MAY BE WRONG, BUT ISN-T. ARE NOT WE SAYING 

23 SOMETHING MORE THAN IT JUST GETS UPSET WHEN THE VICTIM IS WHITE?         
  

 



  

  

    

  

  

  

BALDUS - DIRECT 

THE WITNESS: WELL, YOU CAN SEE COVER HERE, YOUR HONOR, 

WHEN YOU LIMIT THE INQUIRY TO WHITE DEFENDANT CASES, IN G AND H, 

AND WE EXAMINE THE IMPACT OVER THERE OF THE RESPONSE OF THE 

SYSTEM IN HANDLING WHITE VICTIM CASES AND BLACK VICTIM CASES, 

WHEN THE DEFENDANT IS WHITE, -- 

THE COURT: THERE-S NO DISPARITY. 

THE WITNESS: WELL, THE OVERALL EFFECT SHOWS A SLIGHT 

DISPARITY. IT‘S MUCH LESS STABLE. YOU CAN SEE THE WHITE ON 

WHITE CASES. YOUR HONOR, THE DEATH SENTENCING RATE IS SLIGHTLY 

HIGHER. IF WE LOOK UP IN THE TOP COLUMN, TOP ROW, ROW ONE, AND 

YOU AGGREGATE THE CASES. YOU CAN SEE THAT THERE IS A DIFFERENCE 

IN THE, IN THE RATE, 12 PERCENTAGE POINTS. IT/S NOT AS LARGE TO 

BE SURE. 

THE OTHER POINT IS THAT IT CONSTITUTES A MUCH SMALLER 

POPULATION IN THE SENSE THAT YOURE DEALING WITH RELATIVELY FEW 

WHITE DEFENDANT-BLACK VICTIM CASES. 

ALSO IN TERMS OF WHAT WE WOULD EXPECT, YOUR HONOR, THE 

LITERATURE SUGGESTS THAT CASES THAT INVOLVE INTERRACIAL CRIMES 

WOULD BE EXPECTED TO PRODUCE A SLIGHTLY MORE PUNITIVE RESPUNSE., 

REGARDLESS OF THE RACE, THE DEFENDANT-VICTIM RACIAL COMBINATION, 

THATS ANOTHER PATTERN ONE SEES IN THE LITERATURE. 

THE COURT: THAT IS SURPRISING TO ME. 

THE WITNESS: PARDON ME? 

THE COURT: THAT IS SURPRISING TO ME. 

THE WITNESS: AND THAT COMBINED WITH THE FACT THAT 

  

  

  

 



  

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BALDUS - DIRECT 

YOURE DEALING WITH A VERY SMALL PROPORTION OF WHITE ON BLACK 

CASES HERE, YOUR HONOR, THE, AND I THINK IT’S THE COMBINATION OF 

THOSE TWO EFFECTS THAT EXPLAINS WHY YOU FIND INSTABILITY IN 

THESE EFFECTS. | 

BUT, THERE CERTAINLY DOES NOT SUGGEST THAT THE BLACK 

VICTIM CASES ARE TREATED MORE PUNITIVELY, WHEN THE, THE VICTIM, 

|PARDON ME, WHEN THE DEFENDANT IS WHITE. I MEAN THATS CERTAINLY 

NOT WHAT G AND H ARE TELLING ME. 

THE CQURT: I“M TRYING TO USE WHAT YOU“RE TELLING ME TO 

USE, AND THAT 1S THE PERSISTENCY OF THE PATTERN. 

THE WITNESS: YES. 

THE COURT: AND IM LOOKING DOWN COLUMNS I AND J, YOUR 

PROPOSITION IS SUPPORTED IN THE FIRST LINE: IT IS NOT IN THE 

SECONDS IT IS NOT IN THE THIRD: IT IS IN THE FOURTH: IT IS NOT 

IN THE FIFTH; AND IT IS IN THE SIXTH. 

THE WITNESS: THAT'S RIGHT. 

THE COURT: AND THERE AIN’T NO PATTERN THERE. 

THE WITNESS: THAT’S RIGHT. THOSE RESULTS ARE MIXED. 

NO, I QUITE AGREE WERE YOU. BUT YOQU-RE DEALING WITH A VERY 

SMALL POPULATION. 

THE COURT: WELL, THAT WOULD BE A STANDARD OBJECTION 

ANYTIME YOU DO IT. BUT WHAT YOU'RE TRYING TO TELL ME IS THAT 

I CAN LOOK AT FERSISTENCY THROUGHOUT A NUMBER OF STATISTICALLY 

INSIGNIFICANT, OR ANALYSIS WHICH, EACH ONE OF WHICH WOULD BE IN 

AND OF THEMSELVES STATISTICALLY INSIGNIFICANT. IF I SEE AR 

  

  

 



  

  

  
  

8463 

BALDUS ~ DIRECT 

PATTERN PERSIST, THEN I MAY CREDIT THE FACT THAT THAT PATTERN IS 

THERE. AND WHAT I-M TELLING YOU, THAT DOESN’T SHOW THAT. 

IF THE ANALYTICAL FRAMEWORK YOU HAVE GIVEN ME IS TRUE, 

YOUR CONCLUSION IS WRONG AS TO THE DATA ON THIS FIRST PAGE, I 

THINK. NOW, YOU TELL ME WHY IT ISN“T. 

THE WITNESS: I WILL TRY TO, YOUR HONOR. 

AS 1 SUGGESTED YESTERDAY, THE PRINCIPAL SOURCE OF THE 

RACE OF THE VICTIM DISPARITIES IN THE SYSTEM IS THE BLACK 

DEFENDANT CASES. THAT’S THE PRINCIPAL SOURCE. 

THE WAY THOSE CASES ARE TREATED, THEY CONSTITUTE THE 

BIGGEST BULK OF THE CASES IN THE SYSTEM. IT’S THE WAY THOSE 

CASES ARE TREATED AS BETWEEN THE WHITE VICTIM AND BLACK VICTIM 

CASES THAT IS THE PRINCIPAL SOURCE OF THE OVERALL DISPARITIES 

THAT WE SEE IN THE, AVERAGE DISPARITIES THAT WE“RE MEASURING IN 

THE RACIAL CO-EFFICIENTS. I THINK THIS -- 

THE COURT: SAY THAT AGAIN, THE PRINCIPAL SOURCE -— 

THE WITNESS: THE PRINCIPAL SOURCE OF THE RACE OF 

VICTIM DISPARITY. 

THE COURT: IS IN COLUMN B, IN ESSENCE.   THE WITNESS: YES. IT’S THE MEASURE YOU SEE IN COLUMN E 

AND F. YOUR HONOR. 

YOU“LL SEE HERE THAT THESE DISPARITIES ARE 

SUBSTANTIALLY LARGER THAN ANY DISPARITIES WE SEE REFLECTED IN AN 

OVERALL REGRESSION ANALYSIS, AND WHAT YOURE OBSERVING IS THAT 

INDEED AS YOU POINT OUT THE EFFECTS ARE NOT CONSISTENT ACROSS 

    
  

  
  

  

 



    

    

  

  

  

8464 

BALDUS - DIRECT 

1  |EACH SUB-GROUP OF CASES WHEN YOURE TALKING ABOUT WHITE 

DEFENDANT CASES. 

THATS VERY PLAIN AND IT’S PLAIN IN EVERY TYPE OF 

ANALYSIS WE DO. 

HOWEVER, WHEN YOU TAKE AN AVERAGE OF ALL THESE EFFECTS. 

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YOU CONTINUE TO SEE A STRONG PERSISTENT OVERALL EFFECT. 

7 WHEN YOU LOOK AT THE SUB-GROUP OF CASES. WHICH PROVIDE 

a THE SOURCE OF THESE DISPARITIES, THAT IS, THE BLACK DEFENDANT, 

9 THERE YOU SEE MUCH LARGER EFFECTS, AND LARGER AND PERSISTENT. 

10 AND USING THE RULE THAT I WAS SUGGESTING TO YOUR HONOR, 

11 IF YOU LOOK OVER THE ENTIRE TABLE, 38B, YOU LOOK DOWN COLUMNS E 

12 AND F IN THE ENTIRE TABLE, YOU FIND ONLY ONE PLACE THAT THE 

13 PATTERN DOES NOT EXIST, OR TWO PLACES. AT ONE SPOT WHERE THE 

14 DEFENDANT IS NOT THE ACTUAL KILLER, ON THE BOTTOM OF PAGE 2 OF 

15 DB-B6, YOU SEE THE RACIAL EFFECTS DISAPPEAR. AND SIMILARLY» ON 

16 THE PAGE 3 OF THIS, THE RACIAL EFFECTS DISAPPEAR IN A CLASS OF 

17 CASES WHERE THERE ARE NO DEATH SENTENCES. 

18 THIS 1S PERFECTLY CONSISTENT WITH THE PATTERN, IN THE 

@ 19 LOW AGGRAVATED CASES. YOU DON’T SEE RACIAL EFFECTS. IT’S ONLY IN 

20 THE MORE AGGRAVATED CASES AND IN THOSE CASES, IT’S PRINCIPALLY A 

21 REFLECTION OF THE DISPARITY IN TREATMENT OF BLACK DEFENDANTS 

22 WHEN THE VICTIM IS WHITE AND WHEN THE VICTIM IS BLACK. 

23 | THE COURT: 1 HEAR YOU AND I AM WONDERING IF WE'RE NOT 

z4 AGREEING ON THE BASIC PROBLEM. BUT DISAGREEING ON HOW THAT IS 

<3 CHARACTERIZED.         
  

 



  

  

  

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12 

13 

  
  

2635 

BALDUS - DIRECT 

IT WOLD BE FAIR TO SAY FROM LOOKING AT COLUMN C AND D 

THAT SOCIETY IS NOT STRONGLY SANCTIONING THE CRIME OF A BLACK 

KILLING A BLACK, AND IT IS IN MANY CASES MORE STRONGLY 

SANCTIONING A BLACK KILLING A WHITE. AND THAT PATTERN SEEMS TO 

BE PERSISTENT. 

BUT IF YOU BREAK THEM DOWN LIKE YQU-“VE DONE IT HERE, I 

BEGIN TO WONDER ABOUT THE OVERALL PREMISE THAT IT IS THE RACE OF 

THE VICTIM THATS CONTROLLING. 

IN ANY EVENT, I HAVE YOUR POINT. I HAVE THAT QUESTION 

WHICH YO MIGHT FIND SOME WAY TO ADDRESS IN ANOTHER AREA. 

BY MR. BOGER: 

?. PROFESSOR BALDUS. FOR CLARITY. WHAT WAS THE PURPOSE FOR 

CONDUCTING THIS BREAKDOWN IN DB-847 

A. OH, THIS IS, YOU’RE REFERRING, COUNSEL, TO PART 2, SUB-B., 

SUB 47 

@. NO, I WAS IN GENERAL ASKING WHY YOU WERE UNDERTAKING THIS 

KIND OF ANALYSIS. WHAT WERE YOUR OBJECTIVES? 

THE COURT: I THINK I KNOW WHERE HE WAS GOING, LET ME 

MAKE SURE I PICKED UP ON IT, BECAUSE IT WAS INTERESTING. WITH 

WHAT YOU SAID THE OTHER DAY. AND THAT IS, THAT DISPARITY 

DECREASES AS THE AGGRAVATING OFFENSES DECREASE, AND IS THAT ONE 

OF THE THINGS YOU WERE LOOKING FOR HERE? 

THE WITNESS: YES, SIR. 

THE COURT: ALL RIGHT. G0 AHEAD WITH THAT IDEA, THEN. 

MR. BOGER: FINE.     
  

 



  

  

  

8&b6 

BALDUS - DIRECT 

THE WITNESS: YES, YOUR HONOR. 

THE PURPOSE OF THIS ANALYSIS WAS TO TEST THIS GENERAL 

HYPOTHESIS ABOUT THE RELATIONSHIP BETWEEN THE LEVEL OF RACIAL 

DISPARITY OBSERVED AND THE SERIOUSNESS OF THE CASES. THAT'S 

BEEN A COMMON THEME THAT WE“VE EXPLORED. 

IN ADDITION, HERE THE OBJECTIVE WAS TO USE AN 

ALTERNATIVE METHODOLOGY TO EXPLORE THE QUESTIONS THAT WE HAVE 

HERETOFORE EXPLORED STRICTLY WITH STATISTICAL METHODOLOGY 

BECAUSE HERE WERE ACTUALLY LOOKING AT CASES, THAT IS, SUMMARIES 

OF CASES, AND MATCHING THEM, PAIRING THEM TOGETHER. ALL THESE 

PAIRINGS WERE MADE WITHOUT ANY KNOWLEDGE OF THE RACE OF THE 

VICTIM. AND WITHOUT ANY KNOWLEDGE OF THE SENTENCE, THE PEOPLE 

THAT WERE INSTRUCTED TO DQ THIS WERE ASKED TO DO THIS IN A 

COMPLETELY BLIND FASHION WITH RESPECT TO THESE VARIABLES. AND -- 

BY MR. BOGER: 

RN. WE’RE TALKING NOW ABOUT THE SORTING ON PAGE 2 OF DB-387 

A. THAT'S RIGHT. IN TERMS OF TRYING TO EXAMINE THESE CASES, 

AND DETERMINE WHAT THE FACTORS WERE THAT WOULD BE IMPORTANT IN 

SEPARATING THE MORE AND LESS AGGRAVATED CASES. 

WHAT WE CAME UP WITH. YOUR HONOR. AND THIS ENABLES US TO 

FURTHER REFINE THE DEFINITION OF A POOL OF COMPARABLE OR SIMILAR 

CASES. IT RECOGNIZES THAT THERE ARE LIMITS ON WHAT STATISTICAL 

ANALYSIS CAN DO IN THIS AREA AND WE WANTED TO SEE IF WE DID THIS 

IN A MORE-FINE GRAIN FASHION. IN A MANNER MORE COMPARABLE TO 

QUALITATIVE TYPE OF CASE MATCHING. WHETHER WE WOULD SEE     
  

 



  

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8467 

BALDUS - DIRECT 

| COMPARABLE RESULTS, AND WE ESTABLISHED A SET OF CRITERIA TO 

BREAK THE CASES INTO 3 CATEGORIES. WE USED 3 CATEGORIES 

BASICALLY BECAUSE IF WE SLICED IT UP MUCH MORE FINELY. WE WOULD 

LOSE ALL SAMPLE SIZE AND THESE SEEMED INTUITIVELY SENSIBLE AND 

| COMPREHENSIBLE IN TERMS OF, AT LEAST MY JUDGMENT, TO THE OVERALL 

SERIOUSNESS OF THESE CARES. 

fl. WHAT WERE THE STANDARDS OR MEASURES OF LESS AGGRAVATED ARMED 

ROBBERY CASES. TYPICAL ARMED ROBBERY CASES, AND MORE AGGRAVATED 

ARMED ROBBERY CASES THAT YOU EMPLOYED? 

A. YES. THE, TO JUST GIVE AN OVERVIEW, WE'RE STARTING NOW WITH 

ARMED ROBBERY CASES. WAS THE FIRST VARIABLE WE WERE SORTING ON, 

AND WE RESTRICTED TO A CLASS WHERE THERE WAS NO OTHER 

CONTEMPORANEOUS OFFENSE. 

| WE THEN FURTHER SORTED THOSE CASES INTO A CATEGORY OF 

MORE AGGRAVATION, MORE TYPICAL AND LESS, WERE THE THREE 

CATEGORIES. 

THE MORE AGGRAVATED CASES CONSISTED OF THOSE THAT HAD 

ONE OR MORE oF THE FOLLOWING. 

MULTIPLE VICTIMS, PRIOR HISTORY OF ARMED ROBBERY OR 

HOMICIDE. CLEAR PREMEDITATION TO MURDER, GRATUITOUS INFLICTION 

OF PAIN, MUTILATION, HELPLESS VICTIM. THE DEFENDANT ON ESCAPE OR 

ON PAROLE. THAT’S WHAT RESULTED IN THE CLASSIFICATION OF A CASE 

IN THE MORE AGGRAVATED CATEGORY. 

THEN WE IDENTIFIED THE MITIGATING FACTORS THAT SEEM TO 

JUSTIFY DISTINGUISHING CASES FROM THE TYPICAL, RUN OF THE MINE         
  

  

 



    

    

  

  

BALDUS ~ DIRECT 

r3 3 CASE, AND THOSE WERE CASES IN WHICH THE DEFENDANT WAS NOT THE 

TRIG0ER MAN, THERE WAS NO INTENT TO KILL ON THE PART OF THE 

DEFENDANT, THERE WAS EVIDENCE THAT THE DEFENDANT ACTED TO DEFEND 

HIMSELF IN SOME WAY ALTHOUGH IT WAS NOT SUFFICIENT TO OBVIOUSLY 

SUSTAIN A THEORY OF SELF-DEFENSE. DEFENDANT HAD NO PRIOR FELONY 

CONVICTIONS, DEFENDANT WAS UNDER THE INFLUENCE CLEARLY OF 

ALCOHOL OR DRUGS, WITH A, THE DEFENDANT WAS MENTALLY DEFICIENT. 

0 
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| WE SORTED THOSE CASES TOGETHER INTO A CATEGORY THAT WE 

? CALL LESS AGGRAVATED. 

10 THE COURT: I DON’T HAVE THAT. HOW MANY PAGES IS THIS 

11 EXHIBIT SUPPOSED TO BE? 

$2 THE WITNESS: OH, IT’S NOT EXHIBIT. YOUR HONOR. I HAVE 

13 A COPY OF IT HERE. | 

14 THE COURT: GO AHEAD. 

13 BY MR. BOGER: 

16 R. I THINK IT’LL BE PART OF YOUR FINAL REPORT. FROFESSOR 

17 BALDUS? 

18 A. YES. 

w 19 @. DID YOU DO THE SORTING OF CASES, A PRIORI AND THEN DEVELOP 

20 THE CATEGORIES THAT YOU‘VE JUST DEFINED AND SEPARATE THEM. OR 

21 DID YOU DEVELOP THE CATEGORIES AND THEN SORT THE CASES ON THE 

22 BASIS OF THESE CRITERIA? 

23 A. WELL, IT’S AN INTERACTIVE PROCESS. YOU START WITH A SET OF 

24 CATEGORIES THAT YOU THINK WILL SORT THESE CASES. CATEGORY THAT 

25 WE DEVELOPED IN OTHER CASES, BUT WE FOUND WHEN WE STARTED LOOKING     
  

  

 



  

  

  

  

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BALDUS ~ DIRECT 

AT THESE CASES THAT THEY HAD SOME NUANCES THAT THE OTHER CASES 

THAT WE HAD LOOKED AT USING THIS SAME PROCEDURE DID NOT. 

SO YOU MODIFY THEM. BUT THE OBJECT IS TO TRY AND 

IDENTIFY THE CHARACTERISTICS OF THE CASES THAT PROVIDE SOME 

MEASURE OF OVERALL CULPABILITY AND WE BELIEVE THEY WOULD BE 

PERCEIVED IN THE SYSTEM. 

@. WHAT TOOL DID YOU USE TO EXAMINE THE CASES THEMSELVES? 

A. THE SUMMARY OF THE CASES. THAT IS, WE HAD A TYPED COPY OF 

EACH OF THE SUMMARIES OF THESE CASES THAT WERE PROVIDED BY THE 

CODERS AS A RESULT OF THEIR RESEARCH. 

2. AND WHAT DO THOSE RESULTS SHOW? 

A. WELL, THEY SHOW FIRST OF ALL THAT OUR JUDGMENTS ABOUT THE 

CASES WHICH ARE MORE SERIQUS IS REFLECTED BY THE ACTUAL PATTERN 

OF SENTENCING DECISIONS IN THE SYSTEM, THAT IS, THE CASES IN THE 

LESS AGGRAVATED CATEGORY, AS IS REFLECTED IN COLUMN B OF PAGE 2 

OF DB-84, SHOWS A 13 PERCENTAGE RATE, 13 PERCENT DEATH 

SENTENCING RATE, THAT’S SIX OUT OF FORTY-FIVE OFFENDERS IN THAT 

CATEGORY. 

THE COURT? WHAT LINE ARE YOU ON? 

THE WITNESS: THIS IS PAGE 2, YOUR HONGR, LINE 4, IT’S 

CALLED “LESS AGGRAVATED ARMED ROBRERY WITH NO OTHER OFFENSE." 

THE COURT: OKAY. 

THE WITNES3: AND WE LOOK IN THERE AMONG THE, AT THE 

AVERAGE DEATH PENALTY CASE, RATE, RATHER, AMONG THOSE CASES, AND 

WE SEE THAT SIX OF THOSE OFFENDERS RECEIVED A DEATH SENTENCE OUT 

  

    

  

 



  

— — ar areas S———— 

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870 

BALDUS - DIRECT 

OF FORTY-FIVE. 

AND THEN WE LOOK AT THE TYPICAL CATEGORY AND WE SEE A 

SLIGHT ELEVATION IN TERMS OF THE OVERALL DEATH SENTENCING RATE 

FICKS UP NOW TO 18. 

AND THEN WE LOOK IN THE MORE AGGRAVATED CATEGORY. THOSE 

CASES HAVING THE CHARACTERISTICS THAT 1 DEFINED, PUT THEM IN 

THAT CATEGORY AND WE SEE A SHARP INCREASE IN THE DEATH 

| SENTENCING RATE AMONG THOSE CATEGORIES. 

THEN IF YOU LOOK OVER, YQUR HONOR, INTO, UNDER COLUMN 

E, YOU SEE THE SAME PATTERN THAT 1 POINTED OUT IN OTHER 

OCCASIONS. THAT IS, AS THE DEATH SENTENCING RATE RISES. SO DOES 

THE RACE OF VICTIM DISPARITY AMONG THIS CLASS OF CASES, AMONG 

BLACK DEFENDANT CASES. 

AND THAT 5 A MAIN THEME OF THE, OF THIS. THATS A MAIN 

PATTERN THAT EMERGES FROM THIS, AND ALL OF THE ANALYSIS THAT WE 

HAVE DONE, AND THE IDEA HERE IS TO SEE WHETHER OR NOT THIS SORT 

OF PATTERN EMERGES WHEN WE USE THIS NON-STATISTICAL QUALITATIVE 

METHOD OF SORTING CASES. 

AND WE SEE FINALLY IN THIS CATEGORY WHERE THE DEFENDANT 

WAS NOT THE ACTUAL TRIGGER MAN. THAT ACTUALLY: THIS IS SLIGHTLY 

MISLEADING HERE, YOUR HONOR. THAT IS NOT ONE OF THE 

SUB-CATEGORIES HERE. THAT'S A WHOLE DIFFERENT CATEGORY WHERE 

THE DEFENDANT IS NOT THE TRIGGER, WE SEE THE DEATH SENTENCE RATE 

1S VERY LOW AND THE RACE OF VICTIM DISPARITIES IN THIS CATEGORY 

DISAPPEAR.   
  

  

  

 



          

  

  

871 

pALDUS ~ DIRECT 
pb

 AND THEN FINALLY. ON 43, WE LOOK AT THE OTHER BZ 

CONTEMPORANEOUS OFFENSES. AND HERE WE LIMITED THE ANALYSIS 

SIMPLY TO CONTROL FOR THOSE SEPARATE FACTORS. THAT IS. THE 

PRESENCE OF THOSE FACTORS IN THE CASE. 

AND AGAIN, YOU SEE A PATTERN THAT IS CONSISTENT WITH 

WHAT THE PATTERN WAS IN THE EARLIER ANALYSIS. 

BY MR. BOGER: 

@. PROFESSOR BALDUS, DO YOUR EXPERT OPINIONS RELY SOLELY ON 

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THIS MODE OF ANALYSIS? 

10 A. NO. THIS IS JUST ONE OF A VARIETY OF DIFFERENT ANALYSES. 

11 AND THEY CONFIRM WHAT THE STATISTICAL ANALYSIS SHOWS. AND 

12 THATS WHAT GIVES ME CONFIDENCE IN THE RESULT. YOUR HONOR. IS 

13 THAT. THAT THE ANALYSIS WITH RESPECT TO THE RACE OF THE VICTIM 

14 PRODUCES COMPARABLE RESULTS. NO MATTER HOW WE SLICE THE DATA. 

13 IF I WERE TO LOOK AT THESE WITHOUT DOING A STATISTICAL 

16 ANALYSIS, I WOULDN‘T HAVE, I HAVE QUESTIONS. IF I DID THE TIME 

17 STATISTICAL ANALYSIS WITHOUT LOCKING AT THE QUALITATIVE. 1 

13 WOULD. IF I DID ONE STATISTICAL ANALYSIS AND IT SHOWED ONE 

w 19 THING AND ANOTHER, ANOTHER RESULT, I WOULD HAVE QUESTIONS ABOUT 

20 THERE BEING ANY SYSTEMATIC EFFECT IN THE SYSTEM. ITS THE 

| 
| 

| 
{ 
PATTERN THAT TELLS THE STORY, IN MY OPINION. 

  
22 MR. POGER: YOUR HONOR, AT THIS TIME I MOVE THE 

23 ADMISSION OF DB-8& INTO EVIDENCE. 

24 MS. WESTMORELAND: YOUR HONOR, AT THIS POINT ON THIS 

23 EXHIBIT, I STATE ALL THE OBJECTIONS I-VE HAD FOR THE PRECEDING     
  

  

 



  
  

  

  

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BALDUS - DIRECT 
Pa

. EXHIBITS. 

THE COURT: I WILL ADMIT IT, NOTING THIS FOR COUNSEL. 

THAT I HAVE LESS CONFIDENCE IN THE PROBATIVE VALUE OF THIS 

EXHIBIT THAN I DO SOME OF THE OTHERS THAT I°VE ACTUALLY ADMITTED 

IN EVIDENCE. TWO REASONS: IM NOT ENTIRELY SURE OF THE 

CRITERIA. ON PAGE 4 I HEARD WHAT IT SAID, BUT I“M NOT SURE 

WHAT 1S MORE OR LESS AGGRAVATING, AND ALSO NOTING THAT THERE IS 

NO EFFORT MADE TO CONTROL FOR SOME VARIABLES WHICH I THINK I 

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HAVE LEARNED ARE ALMOST ALWAYS GOING TQ OBSCURE THE RESULTS. 

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 BUT IT“S ADMITTED. 

MR. BOGER: THANK YOU, YOUR HONOR. PS
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fo
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i2 BY MR. BOGER: 

13 @. PROFESSOR. LET ME ASK YOU TO TURN TQ DB-87 MARKED FDR 

14 IDENTIFICATION. WHAT DOES THIS DOCUMENT DO? 

15 A. THIS DOCUMENT IS A PRESENTATION OF THE RACE OF THE DEFENDANT 

146 DISPARITIES IN THE SAME CATEGORIES OF CASES WE JUST LOOKED AT IN 

17 DB-26. 

18 : VERY SIMPLY, WHAT WE DID WAS REARRANGE THE COLUMNS 

Ww 19 CONCERNING THE DEFENDANT-VICTIM RACIAL COMBINATIONS SO THAT. FOR | 

20 EXAMPLE, IN COLUMNS C AND D, WE’RE NOW CONTROLLING FOR THE RACE 

21 OF THE VICTIM. AND DEMONSTRATING THE DIFFERENTIAL TREATMENT IN 

22 THE RACE OF THE DEFENDANT. 

>3 AND HERE OUR PARTICULAR FOCUS WAS ON THE TREATMENT OF 

<4 BLACK OFFENDERS IM THE CONTEXT OF A WHITE VICTIM CASE, BECAUSE 

23 THATS WHERE ALL OF OUR EVIDENCE UP TO THIS POINT HAD SUGGESTED     
  

  

 



    

  

  

{ 
| 

  

BALDUS - DIRECT 

WAS THE SOURCE OF ANY OF THE RACE OF DEFENDANT DISPARITIES THAT 

WE MIGHT OBSERVE IN THE SYSTEM. 

AND WHEN YOU EXAMINE THIS ANALYSIS YOU) SEE THE SAME 

PATTERN, YOU SEE DISPARITIES BASED UPON THE RACE OF THE 

DEFENDANT IN THIS CATEGORY OF CASES. BUT THEY AREN‘T NEARLY AS 

STRONG AS RACE OF VICTIM EFFECTS, AND THERE-S A CERTAIN AMOUNT 

OF INSTABILITY IN THOSE RESULTS. 

WE LOOK DOWN COLUMNS E AND F, ACROSS THESE 3 PAGES, YOU 

SEE SOME SITUATIONS WHERE THE RATE FOR THE BLACK DEFENDANT IS, 

WITH A WHITE VICTIM IS LOWER THAN IT IS WITH A WHITE DEFENDANT 

WITH A WHITE VICTIM. 

BUT OVERALL YOU GET A SENSE THAT THERE IS A PATTERN 

REFLECTING A CERTAIN LEVEL OF DISADVANTAGE FOR A BLACK DEFENDANT 

WITH A WHITE VICTIM VIS-A-VIS A WHITE DEFENDANT WITH A WHITE 

VICTIM. 

THE COURT: THIS PROBABLY HAS NOTHING TO DO WITH THE 

LAWSUIT, BUT 1 WOULD OBSERVE THAT THIS TABLE COMES CLOSER TO 

PREDICTING SOUTHERN LORE THAN ANY IVE SEEN IN ANY OF THE 

STUDIES. THE LORE WOULD BE THAT THE SOUTH DOES NOT TOLERATE 

BLACK AGGRESSIVE ACTS AGAINST WHITES. AND THAT OTHER THINGS 

BEING EQUAL AND THAT NOT BEING THE SITUATION, IT HOLDS WHITE 

DEFENDANTS TO A HIGHER STANDARD THAN IT HOLDS BLACK DEFENDANTS. 

AND I THINK THAT TABLE MAY DEMONSTRATE SOME OF THAT. 

| LOOKING AT THE FIRST PAGE. WHERE YOU HOLD THE RACE OF 

THE VICTIM CONSTANT, IF I READ THIS TABLE RIGHT, THE SYSTEM     
  

  
      

 



  

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| 

| BALDUS - DIRECT 

| 
RESPONSE IS TO HOLD THE WHITE DEFENDANT MORE CULPABLE OR AT 

LEAST TO IMPOSE A STRONGER PENALTY THAN AGAINST THE BLACK 

DEFENDANT. IS THAT RIGHT? 

THE WITNESS: THE COMPARISON OF C AND D, YOUR HONOR, 

YOU“RE TALKING ABOUT, IN THE -- 

THE COURT: NO. IM LOOKING AT G AND H, WHERE WE HAVE A 

BLACK VICTIM AND WE’RE STUDYING HOW THE SYSTEM RESFONDS TO THE 

KILLING OF A BLACK VICTIM, IT WOULD, WOULD IT NOT. BE FAIR TO 

SAY, BASED AT LEAST ON PAGE 1, AND I GUESS TO SOME EXTENT ON THE 

OTHER PAGES. THAT WHERE THE RACE OF THE VICTIM IS BLACK, AND THAT 

DOESN’T BRING UP ANY STEREOTYPES OR THAT SORT OF THING, BUT THE 

SYSTEM IS HOLDING DR IMPOSING A GREATER PUNISHMENT ON THE 

WHITE DEFENDANT THAN ON THE BLACK DEFENDANT RATHER REGULARLY 

DOWN THROUGH PAGE ONE. 

THE WITNESS: YES. 

THE COURT: AND TO SOME EXTENT ON PAGE 2. AND MIXED BUT 

NOT GUITE SO TRUE ON PAGE 3. 

THE WITNESS: WELL, IF THAT IS. THAT. AS YOU DEFINE IT 

AS SOUTHERN LORE. IN THE LITERATURE, THAT S RECOGNIZED AS 

CROSSING LINES, CROSSING CAST LINES. CROSSING RACE LINES. THE 

PEOFLE WHO DO CROSS LINES ARE GOING TO BE SANCTIONED MORE 

HEAVILY. THAT THEORY WOULD TEND TO RECONCILE THE COMPARISON OF 

G AND H. THAT IS, THE INTERRACIAL, INTERRACIAL CRIME IS GOING TO 

BE TREATED MORE HARSHLY THAN INTRARACIAL CRIME. AND YOU CAN SEE 

THAT BY COMPARING C AND D. IN "D" YOU HAVE AN INTERRACIAL: IN     
  

 



    

  

  

      

  

BALDUS - DIRECT 

| “D AN INTRARACIAL. AND IN H AND G, YOU HAVE THE SAME PATTERN, 

INTER- AND INTRARACIAL. AND IN EACH CASE. IT’S THE INTERRACIAL 

CRIME THAT SHOWS A SLIGHTLY MORE PUNITIVE RESPONSE, AND THAT IS 

CONSISTENT WITH THE GENERAL SOCIOLOGICAL THEORY ABOUT THE 

BEHAVIOR OF GROUPS. 

THE COURT: I WON‘T BURDEN THE RECORD ANY FURTHER. BUT 

I THINK YOU“VE GOT PART OF THAT WRONG. AS A SOUTHERN BOY. of 

BE GLAD TO TELL YOU OVER A CUP OF TEA AFTER THIS IS ALL OVER. 

MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-87 

INTO EVIDENCE. 

THE COURT: WITH THE NOTATIONS THAT I MADE ON THE 

PREVIOUS EXHIBIT, IT-LL BE ADMITTED. 

MR. BOGER: THANK YQU 

YOUR HONOR, AT THIS TIME, I HAD INTENDED TO HAVE 

PROFESSOR BALDUS IDENTIFY SOME NOTEBOOKS FROM WHICH HE DID 

THESE TWO STUDIES. WE“VE JUST MENTIONED THAT ONE OF THOSE 

NOTEBOOKS IS NOT WITH US THIS MORNING. I MAY WELL BRING THAT IN 

THIS AFTERNOON, BUT SIMPLY WANTED TO ALERT YOU WHY WERE MOVING 

OVER BEYOND DB-38. 

THE COURT: ALL RIGHT. 

BY MR. BOGER: 

A. PROFESSOR BALDUS, HAVE YOU DONE ANY OTHER ANALYSIS, HAVE YOU 

THOUGHT OF ANY OTHER METHOD THAT MIGHT PERMIT YOU TO DISTINGUISH 

CASES BASED UPON THE RISK THAT THOSE CLASSES OF CASES MIGHT 

RECEIVE A DEATH SENTENCE, IN ORDER TO DETERMINE WHAT THE RACIAL 

  
  

  

 



  

        

  

  

BALDUS - DIRECT 

1 EFFECTS ARE?   
2 1A. YES. 

3 RA. WHAT KIND OF ANALYSIS? 

4 A. THE NEXT ANALYSIS THAT I UNDERTOOK WAS TO IDENTIFY THOSE 

CASES IN THE ENTIRE SYSTEM THAT APPEARED TO BE AT GREATEST RISK ou
 

WITH THE, WITH RESPECT TO THE POSSIBILITY OF RECEIVING A DEATH 

-w
 

Bb
 

SENTENCE. OUR CROSS TABULATION ANALYSES EARLIER HAD INDICATED 

THAT WHEN THE LIKELIHOOD OF A DEATH SENTENCE IS VERY VERY LOW 

0 
© 

BECAUSE THE CASE IS SIMPLY NOT AGGRAVATED AT ALL, THAT YOU 

10 CANNOT REALLY CET A PICTURE OF HOW DISCRETION IS BEING 

11 EXERCISED. 

12 AND WE DEVELOPED A METHOD THAT WOULD ENABLE US TO 

13 COMBINE A SUBSTANTIAL NUMBER OF BACKGROUND VARIABLES INTO AN 

14 ANALYSIS IN WHICH WE WERE ABLE TO CONTROL FOR MANY BACKGROUND 

13 FACTORS, SIMULTANEOUSLY. AND ASSESS THE SERIOUSNESS OF THE CASES 

16 CONTROLLING FOR THESE BACKGROUND FACTORS. 

17 AND THE BASIC PROCEDURE IS TQ DEVELOP A REGRESSION 

1a ANALYSIS, MULTIPLE REGRESSION ANALYSIS, AND TD TAKE THE FACTORS | 

w 19 THAT THE MULTIPLE REGRESSION ANALYSIS SUGGESTS ARE IMPORTANT 

=0 PREDICTORS OF WHO RECEIVES A DEATH SENTENCE; THEN TO SCORE THE 

ire) CASES IN TERMS OF THE PRESENCE OR ABSENCE OF THOSE FACTORS THAT 

22 TEND TO MAKE A CASE MORE AGGRAVATED OR MORE MITIGATED. AND TO 

23 THEN SORT THE CASES ACCORDING TO THE LEVEL OF AGGRAVATION OR 

24 MITIGATION OR TO PUT IT MORE PRECISELY. THE PREDICTED LEVEL OF A 

23 DEATH SENTENCE THAT ONE WOULD EXPECT, QRIVEN THE CHARACTERISTICS         
  

 



  

  

  

  

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| 877 
BALDUS ~ DIRECT 

OF EACH CASE. 

SEE, ONCE ONE DOES ONE OF THESE ANALYSES WHERE THE 

REGRESSION FROCEDURE INFORMS YOU OF WHAT THE SYSTEM SEEMS TO BE 

RESPONDING TO, YOU CAN LOOK AT ONE INDIVIDUAL CASE AND SAY, 

GIVEN OUR EXPERIENCE THROUGH ALL OF THESE. HOW LIKELY IS IT THAT 

YOU THINK THIS PARTICULAR CASE WOULD RECEIVE A DEATH SENTENCE. 

WE THEN TAKE THOSE CASES AND, AND RANK CRDER THEM 

ACCORDING TO THIS PREDICTED LIKELIHOOD THEY WOULD RECEIVE A 

DEATH SENTENCE, AND THEN BREAK THEM DOWN INTO SUB-GROUPS. AND 

THE RESULTS THAT WE HAVE —- 

@. BEFORE YOU REACH THE RESULTS, LET ME ASK YOU A QUESTION 

ABOUT THE METHOD. 

IS THERE ANY PRECEDENT FOR THAT KIND OF APPROACH TO 

|THIS SORT OF QUESTION? 

A. YES. THE, THE PRECEDENT THAT WE RELIED ON IN USING THIS IS Th 

HALOTHANE STUDY THAT I MENTIONED IN MY EARLIER TESTIMONY. 

AND YOUR HONOR WILL RECALL THAT WAS THE, THE STUDY THAT 

WAS DONE TO TRY AND DETERMINE WHETHER HALOTHANE WAS DANGEROUS. 

AND THEY HAD THE SAME PROBLEM THAT WE DID HERE IN THE SENSE THAT 

THEY WERE TRYING TO DETERMINE HOW FREQUENTLY A FAIRLY RARE EVENT 

OCCURS, WHILE CONTROLLING FOR A VARIETY OF BACKGROUND FACTORS 

THAT BEAR UPON THE LIKELIHOOD THAT THAT WILL OCCUR, THAT IS, THE 

CONDITION OF THE PATIENT, TYPE OF OPERATION, ET CETERA. ALL 

iE 

  
THOSE BACKGROUND FACTORS. 

50, THE PROCEDURE THEY USED WAS NOT IDENTICAL TO THIS,         
  

  

 



  

  

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873 

BALDUS - DIRECT 

BUT IT WAS COMPARABLE CONCEPTUALLY TO THIS, WOULD BE TO DEVELOP 

Hii INDEX THAT WOULD TELL YOU HOW LIKELY A PERSON WOULD DIE FROM 

OTHER FACTORS, AND TO SORT THOSE CASES INTO COMPARABLE 

CATEGORIES. AND THEN YOU LOOK AT THOSE THAT HAD HALOTHANE AND 

THOSE THAT USED SOME OTHER ANESTHETIC AND GET SOME SENSE OF WHAT 

EFFECT THAT HALOTHANE WAS LIKELY HAVING IN THE PROCESS. 

WE DID THE SAME THING HERE. WE LOOKED AT THE 

BACKGROUND FACTORS THAT HAD A STRONG PREDICTIVE EFFECT IN THE 

SYSTEM AND THEN SORTED THE CASES ACCORDING TO THOSE WHERE THE 

PREDICTED LIKELIHOOD OF A DEATH SENTENCE WAS COMPARABLE, GIVEN 

ALL THE LEGITIMATE NON-RACIAL BACKGROUND FACTORS. AND WE COULD 

LOOK AT THE DIFFERENT RACIAL DISPARITIES WITHIN THESE 

SUB~GROUPS. 

| TO GIVE YOUR HONOR A SENSE OF WHAT THIS IS ANALOGUS TO, 

I WOULD LIKE TO REFER BACK TO AN EARLIER FIGURE, IF I COULD. 

YOUR HONOR, WHICH IS IN DB-74&. IF YOU’LL NOTE ALONG THE ROTTONM 

OF DB-76 WE HAVE FOUR CATEGORIES OF CASES. AND THOSE INDICATE 

THE DEATH SENTENCING RATES AFTER CONTROLLING FOR TWD BACKGROUND 

FACTORS. 

THE TABLE. TABLE 40, WHICH IS PRESENTED IN DB-89, 

PRESENTS A COMPARABLE SORT OF PICTURE AFTER CONTROLLING FOR A 

MUCH LARGER GROUP OF BACKGROUND FACTORS, 14 BACKGROUND FACTORS 

THAT HAVE AN IMPORTANT IMPACT IN THE SYSTEM. SQ THAT ONE CAN 

VIEW EACH OF THESE LEVELS ON THIS SCALE HERE FROM ONE TQ EIGHT 

AS COMPARABLE TO THE. TO THESE SUB-GROUPS OF CASES IN FIGURE 2,         
  

 



  

  
  

  

87? 

BALIUS - DIRECT 
fo
l | AFTER YOU CONTROL FOR THESE VARINUS BACKGROUND FACTORS, YOU SEE 

i 

ry
 THE CASES BECOMING MORE AND MORE AGGRAVATED AS MEASURED BY THE 

WAY THE SYSTEM SEEMS TO BE RESPONDING TO THEM. 

H
W
 

AND YOU CAN SEE THAT THE DEATH SENTENCING RATES IN 

THESE LOW LEVEL CATEGORIES FROM ONE TQ SIX ARE VERY SMALL. 

THERE ARE VIRTUALLY NO DEATH SENTENCES IN THESE CATEGORIES OF 

CASES. 

1 
EE
G 

TH
 

S
R
L
 
7 

A. YOU RE REFERRING AT THIS POINT TO DB-8%7 

v A. CORRECT. THE LOW POINTS ON THE SCALE. ONE THROUGH SEVEN, IN 

10 FACT, THE DEATH SENTENCING RATE IN THOSE CATEGORIES NEVER RISES 

11 ABOVE, ONLY IN ONE CASE DOES IT RISE ABOVE TWO PERCENT.   iz THE DEATH SENTENCING CASES ARE RESERVED FOR THIS TOP 

13 |CATEGORY. 

14 S50 AS A CONSEQUENCE. WE CAN SEE FROM THIS THAT THERE 

13 ARE RELATIVELY FEW CASES IN THE ENTIRE SYSTEM THAT ARE GENUINELY 

16 AT RISK WITH RESPECT TO RECEIVING A DEATH SENTENCE. AND THOSE 

17 ARE THE CASES THAT ARE CLASSIFIED HERE IN CATEGORY 8. 

18 AND ONE STEP OF THE ANALYSIS WAS TO ATTEMPT TO ESTIMATE 

Ww 19 THE RACIAL DISPARITIES WITHIN THESE SUB-GROUPS. AND THAT WAS 

20 DONE BY JUST SELECTING OUT THE CASES IN EACH OF THESE SUB-CGROUPS   
21 WHERE THERE WERE DEATH SENTENCING RATES OF ANY TYPE, AND 

rar DETERMINING WHETHER WITHIN THIS CLASS OF CASES THAT WE SAW ANY 

23 RACIAL EFFECTS AT ALL WHEN WE DID IT. A MULTIPLE REGRESSION 

24 ANALYSIS, AND THOSE ARE THE RESULTS THAT ARE REPORTED IN COLUMNS 

ors C AND D OF DB-89.       
  

  

 



  

  

  

  

a
]
 

230 

BALDUS - DIRECT 

1 AND THE SHORT OF IT IS YOU CAN SEE THE RACIAL EFFECTS   
2 ARE CONCENTRATED IN THIS CATEGORY WHERE THE DEATH SENTENCING 

3 'RATE IS ELEVATED: REFLECTS THE SAME THEME. IF YOU HAVE A LOW 

4 DEATH SENTENCING RATE. YOURE VERY UNLIKELY TO HAVE MUCH OF A 

bo! RACIAL DISPARITY APPARENT, AND THAT PATTERN IS REPEATED HERE. 

& THIS IS A CATEGORY IN WHICH YOU FIND 107 OF ALL 128 

7 DEATH SENTENCES THAT ARE INCLUDED IN OUR SAMPLE. 

8 I. YOU MEAN CATEGORY 8% 

4 A. I’M SORRY. I MEANT CATEGORY 8. 

10 @. NOW, DID YOU DO ANY ANALYSIS TO FURTHER SUBDIVIDE OR SORT 

11 OUT THESE CASES BY A LEVEL OF AGGRAVATION TO CONTINUE THIS KIND 

12 OF ANALYSIS? 

13 A. YES. THE PRIOR RESEARCH WOULD, SUGGESTED THAT IT WAS 

14  |PROBABLY INAPPROPRIATE TO TREAT THE CASES IN CATEGORY 8, SAY, AS 

15 ‘A STRICTLY COMPARABLE GROUP OF CASES. THERE PROBABLY WOULD BE A 

i& LOT OF VARIATION IN THOSE CASES IN TERMS OF CHARACTERISTICS THAT 

37 WERE USED TO SORT OUT THE CASES THAT ARE IN DB-29. 

18 S00 WHAT WE DID WAS TO FOCUS IN ON CASES THAT LOCKED 

WW 19 LIKE THEY WERE THE BEST CANDIDATES TO RECEIVE A DEATH SENTENCE, 

20 GIVEN THE FACTS OF THEIR CASES. AND THAT RESULTED IN THE 

21 IDENTIFICATION OF APPROXIMATELY FIVE HUNDRED CASES. 1 MADE THAT 

22 JUDGMENT ON THE BASIS OF LOOKING AT THIS, THIS TABLE. 

23 R. WHICH TABLE DO YOU MEAN? 

24 A. DB-8% AND 1 SAID WELL, THE TOP TWO LEVELS THERE IS PROBABLY 

2% WHERE WE-“LL SEE THE BEST SENSE OF WHERE THE LIKELIHOOD OF A       
  

 



  

  

  

  

agsl 

BAL.DUS - DIRECT 

1 DEATH SENTENCE TAKES HOLD, UP TO THE PQINT OF WHERE THE 

2 LIKELIHOOD OF A DEATH SENTENCE IS VERY HIGH. 

3 AND I FOCUSED IN ON THOSE CASES, AND IF YQU WILL. SORT 

OF ENLARGED THE BREAKDOWN WITHIN THOSE CASES. EXPANDED THE 

SUBDIVISION OF CASES WITHIN THAT SUB-GROUP. 

@. AND LET ME DIRECT YOUR ATTENTION TO DB-90 MARKED FOR 

4 

5 

& 

? IDENTIFICATION. CAN YOU IDENTIFY THAT DOCUMENT? 

8 A. YES. DB-90 IS THE RESULT OF THAT ENLARGEMENT OF THAT TOF 

7 CATEGORY OF APPROXIMATELY FIVE HUNDRED CASES. 

0 @. YOU’RE TALKING OBVIOUSLY NOT ABOUT AN ENLARGEMENT OF NUMBER 

11 OF THOSE CASE, BUT AN ENLARGEMENT OF A MICROSCOPIC VIEW, IF YOU 

12 WOULD, OF HOW THOSE CASES ARE SORTED? 

13 A. YES. PUTTING IT MORE PRECISELY. RA FURTHER SUBDIVISION OF 

14 THE CASES ALONG THE SAME INDEX THAT WAS USED TO CREATE DB-89. 

1%  |Q. WHAT DOES DBE~®0 REVEAL? 

146 A. DB-90 PRESENTS THE RACE OF VICTIM DISPARITIES CONTROLLING 

17 FOR THE RACE OF THE DEFENDANT. 

18 AND WHAT WE SEE HERE IS IN COLUMN B, COLUMN A. AN 

o 1? IDENTIFICATION WHICH IS PRESENTED IN COLUMN A OF THE LEVELS OF 

20 PREDICTED LIKELIHOOD, THAT IS. WE GO FROM LEVEL ONE TO EIGHT, 

21 FROM THE LEAST LIKELY PREDICTED DEATH SENTENCE TO THE MOST 

22 LIKELY PREDICTED DEATH SENTENCE, GIVEN THE FACTORS THAT WERE 

23 BEING USED. THESE ARE THE FACTORS THAT TEND TO EXPLAIN THE 

24 RESULTS. 

23 AND YOU CAN SEE IN COLUMN B THE ACTUAL DEATH SENTENCING       
  

  
  

 



  

    

  

  

BALDUS - DIRECT 
>
 RATE AMONG THESE SUB-CATEGORIES OF CASES. AND THESE 

BB CATECORIES WERE DEFINED IN TERMS OF EGUAL NUMBERS OF CASES. 

'1I TRIED TO MAKE THE CATEGORIES EQUAL. BUT BECAUSE OF THE. WHERE 

THE SCORES BROKE, SOMETIMES THE CATEGORIES WERE NOT THE SAME AND 

I WANTED TO KEEP EACH CASE WITH AN IDENTICAL SCORE IN THE SAME 

CATEGORY. THAT'S WHY THE CATEGORIES VARY AS THEY DO IN SIZE. 

AND I CALCULATED FIRST THE DEATH SENTENCING RATE AMONG 

| THOSE CATEGORIES. SO YOU CAN SEE EVEN WITHIN THIS TOP FIVE 

HUNDRED GROUP OF CASES THAT STILL THE DEATH SENTENCING RATES DO 

T
y
 

ZY
 

N
G
 

0 
~ 

A
 
B
W
 

NOT BEGIN TO RISE TO A VERY HIGH LEVEL UNTIL YOU GET UP INTO 

[W
Y 

Fo
y THE TOP FOUR CATEGORIES. AND EVEN THERE THEY ARE NOT VERY HIGH. 

12 IT’S NOT REALLY UNTIL YOU GET UP INTO THE VERY HIGHEST 

13 CATEGORY, EIGHT, THAT THE DEATH SENTENCING RATE SHARPLY RISES. 

14 ILL MENTION To You, ALTHOUGH IT’S NOT REPORTED HERE. THAT AMONG 

15 THAT TOP 58, IF YOU LOOK AT THE TOP 40 IN THAT CATEGORY, MY 

16 RECOLLECTION IS THAT EVERY ONE OF THOSE OFFENDERS RECEIVED THE 

17 DEATH SENTENCE. THOSE ARE THE MOST AGGRAVATED CASES. 

18 NCW, THIS TABLE PRESENTS IN C AND D THE DEATH 

WW 19 SENTENCING RATE AMONG BLACK AND WHITE VICTIM CASES. IN THOSE 

20 CASES INVOLVING A BLACK DEFENDANT. 

21 AND ONE CAN SEE THAT IN THE LOWER CATEGORIES HERE WHERE 

<2 THE DEATH SENTENCING RATE IS NOT ELEVATED, THAT THE RACIAL   23 DISPARITIES ARE NOT GREAT BECAUSE THERE ARE NO, THERE’S NO DEATH 

24 SENTENCING RATE BASICALLY. 

23 BUT ONCE THE DEATH SENTENCING RATE BEGINS TO RISE.   
    
 



  

  

  
  

BALDUS - DIRECT 

| YOU“LL NOTE THAT IT RISES FIRST IN THE WHITE VICTIM CASES. IT 

RISES THERE MORE SHARPLY THAN IT DOES IN THE BLACK VICTIM CASES. 

THAT CAN BE SEEN BY COMPARING. IF YOU MOVE DOWN C AND D, 

COMPARING THE COMPARABLE FIGURES AT EACH LEVEL ALONG THE WAY. 

YOU CAN SEE THAT THE NUMBERS RISE MORE SHARPLY AT EACH STEP 

ALONG THE WAY IN COLUMN C THAN THEY DO IN COLUMN D. AND WHEN 

YOU MAKE A COMPARISON OF THOSE NUMBERS. AS WE HAVE DONE IN E AND 

F, YOU GET SOME MEASURE OF THE RACE OF VICTIM DISPARITY. 

AND THE OTHER FEATURE OF THIS IS THAT WE START OUT WITH 

SUBSTANTIALLY EQUAL TREATMENT IN THE CASES WHERE THE DEATH 

SENTENCING RATE IS LOW, THE DEATH SENTENCING RATE RISES, AND THE 

DISPARITIES RISE. 

BUT ONCE THE CASES BECOME QUITE AGGRAVATED. THATS UP 

IN THIS CATEGORY 8, THE DEATH SENTENCE. THE DEATH SENTENCING 

RATE GOES UP QUITE HIGH, BUT THE DISPARITIES BEGIN TO DECLINE. 

AND WE-LL NOTE HERE IN THIS TOP CATEGORY, IT DROPS DOWN TO .16. 

‘BUT AS 1 MENTIONED EARLIER, IF YOU FURTHER SUBDIVIDED THAT YOU 

WOULD FIND THAT AMONG THE TOP FORTY OF THESE CASES. THE DEATH   
| 
SENTENCING RATE IS THE SAME FOR THE BLACK AND THE WHITE VICTIM 

CASES, BECAUSE IN THAT CATEGORY, EVERYBODY IS GETTING A DEATH 

SENTENCE. 

| WHAT THESE NUMBERS SUPPORT IS THE HYPOTHESIS THAT'S 

BEEN DEVELOPED IN EARLIER RESEARCH, MOST NOTABLY IN THE WORK OF 

HARRY CALVIN, AND HANS ZEIZEL WHO FUBLISHED A VERY EXTENSIVE 

ANALYSIS OF JURY DECISION MAKING IN A BOOK CALLED "THE AMERICAN 

| 

  

  
  

  

  

 



  

  
  

  

  

834 

BALDUS ~ DIRECT 

i JURY." IT WAS PUBLISHER IN 1946. 

2 | AND IN THAT BOOK, THEY DEVELOPED A HYPOTHESIS, A TESTED 

HYPOTHESIS, WHAT THEY CALL THE LIBERATION HYPOTHESIS AND IN 

SHORT WHAT IT WAS, THAT THE EXERCISE OF DISCRETION IS 

CONCENTRATED IN THE AREA WHERE THERE-“S REAL ROOM FOR CHOICE. IF 

2 

4 

3 

iB & THE IMPOSITION OF A PENALTY OR A CONVICTION IS NOT THINKABLE 

7 BECAUSE THE. EVIDENCE IS JUST NOT THERE. THOSE ARE THE CASES THEY 

8 ‘WERE DEALING WITH, GUILT CONVICTIONS AT TRIAL, OR THE EVIDENCE 

? IS OVERWHELMING, THAT NO REASONABLE PERSON COULD DISAGREE THAT 

10 THIS PERSON COULD BE CONVICTED, THEY SAW NO RACIAL EFFECTS, NO 

11 EFFECTS OF ANY ARBITRARY FACTORS IN THE DECISION PROCESS. 

12 i BUT WHEN YOU LOOK AT THE CASES IN THE MID, WHAT THEY 

13 CALL THE MID-RANGE. WHERE THE FACTS DO NOT CALL CLEARLY FOR ONE 

14 CHOICE OR ANOTHER, THAT THATS WHERE YOU SEE THERES ROOM FOR 

15 THE EXERCISE OF DISCRETION. THEY CHARACTERIZE IT, IF YOU WILL. 

146 THE FACTS LIBERATE THE DECISION MAKER TO HAVE A BROADER FREEDOM 

17 FOR THE EXERCISE OF DISCRETION, AND IT IS IN THE CONTEXT OF 

13 THOSE DECISIONS THAT YOU SEE THE EFFECTS OF ARBITRARY OR 

Ww 19 POSSIBLY IMPERMISSIBLE FACTORS WORKING. 

20 AND THAT’S THE PATTERN WE SEE HERE IN THIS TABLE, WHERE 

21 THE RACE. THE DISPARITIES RISE AS WE MOVE INTO THIS GREY AREA, 

<2 WHERE THE FACTS ARE NOT CLEAR, AND THE EVIDENCE THAT THE FACTS 

23 ARE NOT CLEAR ON CULPABILITY IS THAT AMONG THESE CLASSES OF 

24 CASES THE DEATH SENTENCING RATE IS NOT HIGH. 

23 BUT ONCE THE CASES BECOME QUITE AGGRAVATED. THEY REACH       
 



  

  

N
S
E
 

S
O
R
E
N
 
SR

 
R
t
 

RE
E 

10 

11 

  

  

  
  

883 

BALDUS -~ DIRECT 

i 
| 

A POINT WHERE NO REASONABLE PERSON COULD DISAGREE THAT IF WE'RE 

GOING TO HAVE A DEATH SENTENCE, THESE ARE THE CASES THAT DESERVE 

IT. THEN THE DISPARITIES DISAPPEAR. 

MR. BOGER: YOUR HONOR, AT THIS TIME, I MOVE THE 

ADMISSION OF DB-8% AND DB-?0 INTO EVIDENCE. 

MS. WESTMORELAND: SAME OBJECTION. 

THE COURT: ALL RIGHT, THEY LL BE ADMITTED. 

MR. BOGER: THANK YOU. YOUR HONOR. 

BY MR. BOGER: 

Q. PROFESSOR BALDUS. HAVE YOU DONE THE SAME SORT OF ANALYSIS 

WITH RESPECT TO THE RACE OF DEFENDANT DISPARITIES. AMONG THESE 

HIGHLY AGGRAVATED CASES? 

A. YES. THE, THE, A COMPARABLE ANALYSIS, YOUR HONOR, FOR THE 

RACE OF DEFENDANT DISPARITIES IN THE CONTEXT QF WHITE VICTIM 

CASES, IS SHOWN IN DB-91, AND IT SHOWS THE SAME SORT OF PATTERN. 

BASICALLY, WHAT WE“VE DONE HERE IS RELOCATE THE COLUMNS 

'C, D, G AND H THAT WERE PRESENTED IN DB-90. WE JUST REORDERED 

THEM SO WE WERE ABLE TO CONTROL FOR THE RACE OF VICTIM AND NOW 

MEASURE DISPARITIES IN TERMS OF THE RACE OF THE DEFENDANT.   | AND COLUMNS C AND D SHOW THOSE DISPARITIES, AND AS ONE 

GOES DOWN COLUMNS C AND D. YOU CAN SEE THAT THE, AS THE CASES 

BECOME MORE AGGRAVATED, THE DEATH SENTENCING RATES RISE MORE 

SHARPLY IN THE CASES INVOLVING BLACK OFFENDERS THAN THEY DO IN 

THE CASES INVOLVING THE WHITE OFFENDERS. AND THAT IS WHAT 

PRODUCES THE DISPARITIES THAT ARE APPARENT IN COLUMNS E AND F. 

    

  
  

  

 



    
  

  

FE 

  

| BALDUS ~- DIRECT 

AND AGAIN WE SEE EVIDENCE OF THE LIBERATION HYPOTHESIS 
| 
| 
| 
| 
| 
| 

{ i { 
1 HERE. THE DISPARITIES ARE WEAK, OR NON-EXISTENT VIRTUALLY IN 

MN
 

3 |THE LESS AGGRAVATED CASES. IN THE CENTRAL RANGE IS WHERE WE SEE 

4 THEM. THE MID-RANGE OF CASES IS WHERE THERE IS MORE AMBIGUITY AS 

(iL
 T0 THE APPROPRIATENESS OF A DEATH SENTENCE. AND THEN THEY 

5 A DISAPPEAR IN THE HIGH LEVEL CATEGORY. UP IN THIS CATEGORY WHERE 

7 88 PERCENT OF THE PEOPLE RECEIVING THE DEATH SENTENCE. THERES 

§ [VIRTUALLY NO DISPARITY. THOSE ARE CASES THAT APPARENTLY ARE 

9  |SUCH THAT CONSIDERATIONS OF RACIAL FACTORS ARE JUST OVERWHELMED 

10 BY THE FACTS IN THE CASES. AND WE SEE NO EFFECTS IN THOSE 

11 CONTEXTS. THAT’S WHAT THE DATA SUGGESTS TO ME. 

12 MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-91 

13 INTO EVIDENCE, 

14 THE COURT: IF THERE'S NO ADDITIONAL OBJECTION, IT WILL 

15 BE ADMITTED. 

16 MS. WESTMORELAND: THE ONES I STATED PREVIOUSLY, YOUR 

17 HONOR. 

12 THE COURT: IS 82 A DIFFERENT TACT THAN 227? 

w 19 MR. BOGER: PARDON? 

20 THE COURT: IS 92 A DIFFERENT TACT? 

21 MR. BOGER: YES, YOUR HONOR, 92 IS A DIFFERENT TACT. 

22 THE COURT: ALL RIGHT, LET’S TAKE A TEN-MINUTE BREAK. 

23 ick yn | 

24 (RECESS TAKEN.) 

23 THE COURT: ALL RIGHT. MR. BOGER, GO AHEAD.       
 



      

  

  

  

287 

BALDUS - DIRECT 
Pr
y MR. BOGER: THANK YOU, YOUR HONOR. 

DAVID C. BALDUS, 

BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND 

TESTIFIED FURTHER AS FOLLOWS: : 

DIRECT EXAMINATION (CONT D) 

BY MR. BOGER: 

®t. PROFESSOR BALDUS, DID YOU AT ANY POINT UNDERTAKE ANY 

EY
 

H
R
 
B
E
 

1 
S
E
 
p
a
 

Ln
 

© 
Da
d 

ANALYSIS TO DETERMINE WHY THESE CASES WERE BEING TREATED 

10 DIFFERENTLY? 

11 THE COURT: BEING WHAT? 

12 MR. BOGER: BEING TREATED DIFFERENTLY. 

13 BY MR. BOGER? 

14 QR. AT THESE DIFFERENT POINTS IN THE SYSTEM, OR HOW THAT WAS 

13 HAPPENING? 

1& A. WELL, THE ANALYSIS WE JUST LOOKED AT SUFPFORTS THE BROAD 

17 CONCLUSION THAT LEVELS OF AGGRAVATION IN CASES THAT ARE 

13 SIMILARLY SITUATED ARE EVALUATED DIFFERENTLY IN THE SYSTEM. 

ww 1% @. LET ME DIRECT YOUR ATTENTION TO DB-92 MARKED FOR 

20 IDENTIFICATION. 

=1 CAN YOU IDENTIFY THAT DOCUMENT? 

22 Ae YES, DB-92 PRESENTS THE RESULTS OF AN ANALYSIS WHICH WAS 

23 DESIGNED TO FOCUS MORE SHARPLY ON WHY WE WOULD OBSERVE. OR TO 

24 DEVELOP MORE EVIDENCE ON THE QUESTION OF WHETHER DR NOT THE 

2% [FACTORS THAT TEND TO AGGRAVATE CASES ARE INDEED EVALUATED       
 



  
  

  

  

  

288 

BALDUS - DIRECT 

1 DIFFERENTLY IN WHITE VICTIM AND BLACK VICTIM CASES. 

[ AND THE WAY THIS WAS DONE WAS TO IDENTIFY THE CASES 

THAT APPEAR TO BE IMPORTANT IN THE SYSTEM. AND THAT WAS THE. WE 

W
w
W
 

STARTED WITH A LIST OF 39 VARIABLES THAT WE PRESENTED IN A TABLE 

3 YESTERDAY. 

Ri & 2. EXCUSE ME, PROFESSOR BALDUS. YOU SAID TO IDENTIFY THOSE 

7 CASES THAT WE IDENTIFIED AS IMPORTANT IN THE SYSTEM. DO YOU 

a {MEAN -— 

? A. YES, EXCUSE ME, I MEAN TQ IDENTIFY THE VARIABLES THAT APPEAR 

0 TO BE IMPORTANT IN THE SYSTEM. 

11 AND WE STARTED OUT WITH THE HYPOTHESIS THAT IF THE 

12 SYSTEM WERE INDEED EVALUATING IMPORTANT AGGRAVATING AND 

13 MITIGATING FACTORS THE SAME, THAT WOULD TEND TO MEAN THAT THE 

14 CASES WERE BEING, CASES THAT WERE SIMILAR WOULD BE TREATED THE 

15 SAME. 

16 IF INDEED COMPARABLE CASES. IN TERMS OF AGGRAVATING AND 

17 MITIGATING FACTORS. WERE BEING TREATED THE SAME, THEN WITHIN A 

13 CATEGORY OF WHITE VICTIM CASES YOU WOULD EXPECT THOSE 

Ww 19 AGGRAVATING FACTORS TO HAVE AN EFFECT ON THE DISPOSITION OF 

20 BLACK VICTIM CASES TO BE COMPARABLE TO THE EFFECT THEY WOULD 

at HAVE ON WHITE VICTIM CASES. 350 WE SEPARATED THE DATA SET INTO 

2% TWO POPULATIONS. ONE, THE POPULATION OF WHITE VICTIM CASES AND 

23 THE OTHER THE POPULATION OF BLACK VICTIM CASES. AND CONDUCTED 4 

24 SEPARATE MULTIPLE REGRESSION ANALYSIS WITHIN EACH POPULATION. 

23 AND IDENTIFIED THE AGGRAVATING FACTORS THAT APPEARED TO BE       
 



      

  

  

  

BALDUS - DIRECT 

1 IMPORTANT IN EACH OF THOSE ANALYSES. 

2 WE THEN DETERMINED THE VARIABLES THAT WERE AGGRAVATING 

3 THAT APFEARED TO BE MORE IMPORTANT IN WHITE VICTIM CASES THAN 

4 WAS THE CASE IN THE BLACK VICTIM CASES AND AS A RESULT OF DOING 

Rh
 

THAT SORT, WE FOUND THAT MANY MORE OF THE AGGRAVATING FACTORS 

R 6 THAT APPEARED TO BE IMPORTANT IN THE SYSTEM, PLAYED A MORE 

7 IMPORTANT ROLE IN THE WHITE VICTIM CASES THAN THEY DID. IN THE 

0)
 

BLACK VICTIM CASES, AND DB-92 PRESENTS THE RESULTS OF THIS 

2 ANALYSIS. 

10 AND IT SHOWS IN COLUMN B THE MAGNITUDE AND STATISTICAL 

BISNIEICANCE OF THE CO-EFFICIENTS THAT WERE ESTIMATED, USING A 

i2 LEAST SQUARES REGRESSION ANALYSIS FOR THE AGORAVATING FACTORS. 

13 THE COLUMN C SHOWS A SIMILAR SORT OF ANALYSIS WITH 

i4 RESPECT TO THOSE SAME AGGRAVATING FACTORS AMONG THE BLACK VICTIM   
15 | CASES. 

16 | AND WHEN ONE READS DOWN COLUMN B, YOU CAN SEE THAT A 

17 GOODLY NUMBER OF THOSE CASES ARE, CORRECTION, A GOODLY NUMBER OF 

18 THOSE VARIABLES ARE LARGE AND STATISTICALLY SIGNIFICANT, WHEREAS 

& Poy AMONG THE BLACK VICTIM CASES, THE CO-EFFICIENTS ARE SMALLER, AND 

20 ARE LESS LIKELY TO ACHIEVE STATISTICAL SIGNIFICANCE.   
| TO MAKE THE COMPARISON SOMEWHAT MORE PRECISE. WE 

| 
| 
| 
} 

<3 REGRESSION CO-EFFICIENTS, AND ALSO CALCULATED THE 

CALCULATED THE DIFFERENCE IN THOSE. THE MAGNITUDE OF THOSE 

24 STATISTICAL SIGNIFICANCE OF THE DIFFERENCE IN THE MAGNITUDE OF 

23 THOSE RATES, AND THOSE RESULTS ARE PRESENTED IN COLUMNE D AND       
  

  

 



  

  

  

290 

BALDUS - DIRECT 

E. D SHOWS THE ARITHMETIC DIFFERENCE. D SHOWS, CORRECTION. E 

  SHOWS THE RATIO. 
| 
| 

AND AS YOU CAN SEE, THESE AGGRAVATING FACTORS THAT ARE 

LISTED AT THE TOP OF THIS TABLE, HAVE A MUCH MORE SUBSTANTIAL 

IMPACT IN THE WHITE VICTIM CASES THAN THEY DO IN THE BLACK 

VICTIM CASES. 

@. WHAT DOES THAT MEAN IN TERMS OF THE WAY THE SYSTEM MIGHT 

OPERATE? 

A. THAT MEANS IF YOU LOOK AT A SET OF CASES THAT ARE COMPARABLE 

IN TERMS OF THESE STATUTORY AGGRAVATING FACTORS AND OTHER | 

NON-STATUTORY AGGRAVATING FACTORS, THAT THE SYSTEM RESPONDS MORE 

SHARPLY TO THE PRESENCE OF THESE FACTORS IN WHITE VICTIM CASES 

THAN IT DOES IN BLACK VICTIM CASES. 

THATS WHAT THESE DISPARITIES IN THESE REGRESSION 

CO-EFFICIENTS REFLECT. IT TELLS YOU IN SOMEWHAT MORE DETAIL THE 

SAME STORY THAT DB-90 AND DB-%?1 TOLD YOU. THERE, THE INDEX THAT 

WAS USED AGGREGATED THE COMBINED EFFECTS OF ALL OF THESE 

VARIABLES TO SPECIFIED GROUPS OF SIMILARLY SITUATED CASES, AND 

WE SAW DIFFERENT DEATH SENTENCING RESULTS AMONG THOSE DIFFERENT 

GROUPS OF COMPARABLE CASES. 

HERE THE FOCUS IS ON THE SPECIFIC AGGRAVATING FACTOR. 

AND THIS ANALYSIS PROVIDES EVIDENCE THAT IN WHITE VICTIM CASES, 

THESE SPECIFIC AGGRAVATING FACTORS COUNT MORE AGAINST A 

DEFENDANT THAN THEY DO IN WHITE VICTIM CASES. AND IT JUST 

PROVIDES FURTHER DETAIL ON THE SOURCES OF THE DISPARITIES THAT         
  

  

 



  

  
  

[3
 

[8
 

  

BALDUS - DIRECT 

WE SEE WHEN WE EXAMINE THE OVERALL RACE OF VICTIM EFFECTS IN THE 

SYSTEM. 

@. BUT I THOUGHT YOU TESTIFIED EARLIER THAT IN GENERAL, WHITE 

VICTIM CASES ARE MORE AGGRAVATED THAN BLACK VICTIM CASES. 

‘A. THAT”S TRUE. WHITE VICTIM CASES ARE SUBSTANTIALLY MORE 

AGGRAVATED THAN BLACK VICTIM CASES. 

WHAT THIS ANALYSIS SHOWS ONE IS THAT EVEN WHEN THE SAME 

FACTORS ARE PRESENT IN THE CASES, HOWEVER, WHEN THE CASES ARE 

COMPARABLE, THAT THE SYSTEM RESPONDS DIFFERENTLY TO THE CASES 

THAT HAVE AGGRAVATING FACTORS WHEN THE VICTIM IS WHITE AND WHEN 

IT IS BLACK. 

THE SOURCE OF THE DISPARITIES THAT WERE SEEN IN THE 

SYSTEM IS THE TREATMENT OF CASES THAT ARE COMPARABLE WITH 

RESPECT TO THE KEY AGGRAVATING AND MITIGATING FACTORS IN THE 

SYSTEM. 

AND IT IS TRUE, TO BE SURE, THAT ON THE WHOLE. THE 

WHITE VICTIM CASES ARE SUBSTANTIALLY MORE AGGRAVATED, BUT THAT 

IS NOT WHAT PRODUCES THE RACE OF VICTIM EFFECTS THAT WE SEE. 

IT’S THE WAY THE SYSTEM TREATS THOSE GROUPS OF CASES THAT ARE 

COMPARABLE WITH RESPECT TO AGGRAVATING AND MITIGATING FACTORS 

AND INDEED THERE ARE SUBSTANTIAL NUMBERS OF CASES IN THE SYSTEM     
(WHICH ARE COMPARABLE IN TERMS OF THESE FACTORS. AND THATS THE 

SOURCE OF THE RACE OF VICTIM EFFECTS THAT WE SEE PRODUCED BY OUR 

MEASURES. 

MR. BOGER: YOUR HONOR, AT THIS TIME. I MOVE DB-%2 INTO   i   
  

    

 



    

  

  

  

BALDUS - DIRECT 

1 EVIDENCE.   
THE COURT: LET ME ASK YOU A QUESTION, PROFESSOR 

BALDUS. 

IF I UNDERSTAND WHAT YOU JUST TESTIFIED TO. YOU HAVE 

3 

4 

= SELECTED THE VARIABLES IN COLUMN A, BASED ON AN 

& ANALYSIS OF THE WHITE VICTIM CASES. AND YOU HAVE FOUND THAT 

7 THESE ARE IN YOUR VIEW, STRONG MOTOR POWER FOR SELECTION OF A 

3 DEATH PENALTY. 

? THE WITNESS: NO, THEY WERE BASED ON ANALYSIS GF ALL 

10 ‘THE CASES. YOUR HONOR. 

11 THE COURT: THAT'S WHAT I MISUNDERSTOOD. 

12 THE WITNESS: THESE ARE THE VARIABLES THAT WERE 

13 REFLECTED IN THE ANALYSIS PRESENTED YESTERDAY, YOUR HONOR, IN 

14 TABLES 31A, AND 31B. I INDICATED YESTERDAY THAT WE STARTED WITH 

135 ‘A POOL OF 3% VARIABLES AND BOILED THEM DOWN. THIS IS THE SAME 

16 GROUP OF THOSE VARIABLES. 

17 MR. BOGER: THAT’S DB~81 AND DB-22, IS THAT CORRECT? 

18 THE WITNESS: YES, THAT'S RIGHT. 

Ww 1? ANOTHER THING THAT WAS INTERESTING TD ME ABOUT THIS 

20 ANALYSIS, YOUR HONOR. WAS THAT WE LOOKED AT THE WAY THE SYSTEM 

21 EVALUATES MITIGATING FACTORS. AND THAT PART OF THE ANALYSIS IS 

22 PRESENTED ON THE LAST PAGE OF DB-%2, 

23 ; AND IF YOU-LL LOOK ON THAT PAGE, YOUR HONOR, IT”3 PART 

24 24, LAST PAGE OF THIS EXHIBIT, YOU SEE HERE, WE HAVE THE. WE 

23 HAVE LISTED HERE THE MITIGATING FACTORS THAT, WHEN EXAMINED IN         
 



  

  

  

  

BALDUS -~ DIRECT 

1 | THE CONTEXT OF ALL THE CASES, HAVE THE MOST STATISTICAL EFFECT 

2 | IN PREDICTING DEATH SENTENCES. 

3 AND WE DID THIS SAME ANALYSIS WITH THESE VARIABLES. IN 

FACT THEY WERE INCLUDED IN THE ANALYSIS WITH THE AGGRAVATING 

AND AS YOU SEE, AS YOU GO DOWN COLUMNS B AND C OF PART 
& 

3 

= FACTORS THAT WE JUST LOOKED AT. 

6 

7 2A OF DB-92, YOU 3EE THAT THE MITIGATING FACTORS APPEAR TO HAVE 

A MORE SIGNIFICANT EFFECT IN THE WHITE VICTIM CASES THAN IN THE 0 

? BLACK VICTIM CASES. 

10 THE EVIDENCE HERE IS PLAIN, THAT THRQUCHOUT THE SYSTEM. 

11 THE MITIGATING FACTORS HAVE MUCH LESS INFLUENCE IN DETERMINING 

12 RESULTS THAN DO THE AGGRAVATING FACTORS. BUT AMONG THOSE THAT 

13 DO HAVE AN EFFECT, WHAT IS STRIKING HERE, I THINK, IS THAT THE 

14 EFFECT IS STRONGER IN THE WHITE VICTIM CASES. AND I PUZZLED 

15 {OVER THAT. AND IT, IT APPEARS TO ME THAT WHAT IT SUGGESTS IS 

16 THAT WHEN THE SYSTEM IS DEALING WITH BLACK VICTIM CASES. THAT 

17 THEY SIMPLY DO NOT RECEIVE THE SAME LEVEL OF SCRUTINY THAT THE 

18 WHITE VICTIM CASES RECEIVE. THAT THE AGGRAVATING FACTORS DON’T 

w Bc COUNT AS MUCH, AND SIMILARLY, THE MITIGATING FACTORS DON'T 

20 APPEAR TO COUNT AS MUCH WHEN THOSE CASES ARE PROCESSED THROUGH   
THE SYSTEM. 

| MR. BOGER: YOUR HONOR, ILL RENEW MY MOTION TO ADMIT 

23 |pB-92. 

24 THE COURT: ALL RIGHT. UNLESS THERE‘S ANY ADDITIONAL 

ite OBJECTION, IT WILL BE ADMITTED.       
  
  

 



  

  

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10 

11 

  

  

2324 

BALDUS - DIRECT 

MS. WESTMORELAND: NO ADDITIONAL OBJECTION. 

  | MR. BOGER: THANK YOU, YOUR HONOR. 

BY MR. BOGER: 

@. PROFESSOR BALDUS WE TALKED EARLIER —— 

| THE COURT: WAIT JUST A SECOND. GO AHEAD. 

MR. BOGER: THANK YOU. YOUR HONOR, 

BY MR. BOGER: 

‘RQ. PROFESSOR BALDUS. WE TALKED EARLIER, AND I BELIEVE THE JUDGE 

SPECIFICALLY ASKED YOU ABOUT THE WAY IN WHICH RACIAL DISPARITIES 

IN TREATMENT MIGHT BE EXHIBITED AT DIFFERENT STAGES OF THE 

CHARGING AND SENTENCING SYSTEM. 

DID YOU DO ANY ANALYSES THAT EXAMINED RACIAL 

DIFFERENCES OR DISPARITIES AT DIFFERENT STAGES OF THE SYSTEM? 

A. YES. 

'R. LET ME ASK YOU TO TURN TO DB-93 MARKED FOR IDENTIFICATION 

AND ASK You TO IDENTIFY THAT DOCUMENT. IF YOU CAN? 

A. YES. DB-93 IS TABLE 43 FROM OUR REPORT, AND IT PRESENTS THE 

PROPORTIONS OF WHITE VICTIM CASES —— 

(0. EXCUSE ME, PROFESSOR BALDUS. DID YOU SAY DB-43 DR —- 

A. I’M SORRY, IF I DID. NO, ITS TABLE 43B, FROM THE TABLE 

WHICH IS DB-93. 

IT PRESENTS THE PROPORTION OF WHITE VICTIM CASES THAT 

ARE FOUND AT EACH LEVEL OR AT EACH STAGE IN THE PROCESS AS THE 

CASES PROCEED FROM POINT OF INITIAL INDICTMENT TO DEATH ROW. 

AND TABLE, PARDON ME, COLUMN B SHOWS THOSE PROPORTIONS.     
  

 



  

  

hd
 

5 

3 

  
  

    

BALDUS - DIRECT 

IT INDICATES THAT 39 PERCENT, OR .3% OF THE OFFENDERS INDICTED 

FOR MURDER OR VOLUNTARY MANSLAUGHTER HAD WHITE VICTIMSZ. 

OF THOSE INDICTED FOR MURDER, .40 HAD WHITE VICTIMS. SO 

ON AND S0 FORTH, UNTIL YOU REACH THE POPULATION OF OFFENDERS 

SENTENCED TO DEATH. AND ONE CAN SEE THAT THE PROPORTION OF WHITE 

VICTIMS HAS RISEN TO .84. 

COLUMN C PRESENTS A SIMILAR ANALYSIS WITH RESPECT TO 

THE PROPCRTION OF CASES INVOLVING BLACK DEFENDANTS AND WHITE 

VICTIMS, AT SUCCESSIVE STAGES, AND THERE YOU CAN SEE BY 

COMPARING ROWS ONE AND EIGHT THAT THE PROPORTION OF CASES 

INVOLVING BLACK DEFENDANTS AND WHITE VICTIMS, ELEVATES FROM ,09 

AT THE POINT OF INDICTMENT TO .39 TO THE, IN THE POPULATION OF 

OFFENDERS SENTENCED TO DEATH. 

THE PURPOSE OF THIS ANALYSIS IS TO GIVE ONE AN OVERVIEW 

oF THE RATE AT WHICH WHITE AND BLACK VICTIMS RESPECTIVELY DROP 

QUT OF THE SYSTEM AS THE CASES ARE WINNOWED AND MOVED TO THE 

DEATH SENTENCING HEARING. 

THERE“S NO BACKGROUND CONTROLS IN THIS ANALYSIS, 

WHATEVER. 

THE ANALYSIS DOES, HOWEVER, -—-— 

THE COURT: LET ME ASK YOU A QUESTION. 

COLUMN C SAYS PROPORTION OF CASES WITH BLACK DEFENDANTS 
| 
i 

AND WHITE VICTIMS. 

THE WITNESS: RIGHT. 

THE COURT: SO THIS DOESN/T SHOW THE DROPOUT OF BLACK     
  

 



  

  

  

BALDUS - DIRECT 

1 VICTIMS, DOES IT? 

2 THE WITNESS: WELL. COLUMN B DOES, YOUR HONOR. WHAT 

3 £4 DOING HERE IN THIS TABLE IS FOCUSING ON TWO GROUPS. THE 

4 COLUMN B SHOWS AT THAT .39, CORRECTION. .3% OF THE CASES AT THE 

3 POINT OF INDICTMENT. INVOLVE WHITE VICTIMS AND QTHERS WERE BLACK 

b VICTIMS. AND THERES A, THE COMPLEMENT TO EACH ONE OF THESE IS 

7 THE DIFFERENCE BETWEEM THIS PROFORTION AND ONE. 

HOWEVER, THAT DOES NOT HOLD TRUE OVER HERE WITH RESPECT 

v
o
 

© 

TO COLUMN C. THERE WE FOCUSED ON ONE OF THE FOUR 

10 | DEFENDANT-VICTIM RACIAL COMBINATIONS, THAT IS, BLACK DEFENDANT 

11 |AND WHITE VICTIM. BUT YOU CAN SEE THAT IN CONTRAST TO THE OTHER 

12 RACIAL COMBINATIONS OF DEFENDANTS AND VICTIMS THAT BLACK 

13 DEFENDANTS WITH WHITE VICTIMS TEND TO REMAIN IN THE SYSTEM AT A 

14 HIGHER RATE THAN DO THE OTHER COMBINATIONS. 

15 IN A PERFECTLY EVEN HANDED SYSTEM. WHERE ALL CASES WERE 

16 EQUALLY DEATH ELIGIBLE, ONE WOULD EXPECT THAT THE PROPORTION OF 

17  |CASES AT EACH STAGE WITH DIFFERENT RACIAL CHARACTERISTICS WOULD 

13  |BE THE SAME. 

W 19  |BY MR. BOGER! 

20  |@. HAVE YOU DONE ANY MORE REFINED ANALYSIS OF THE 

21 |VICTIM-DEFENDANT RACIAL BREAKDOWNS AT THE VARIOUS STAGES OF THIS 

22 [CHARGING AND SENTENCING SYSTEM? 

23 1A. YES. 

24  '@. LET ME DIRECT YOUR ATTENTION TO WHAT’S BEEN MARKED AS DE~94 

25 AND ASK YOU TO IDENTIFY THAT DOCUMENT?     
  

 



  

  

  
  

  

BALDUS - DIRECT 

1 ‘A. DE-24, WHICH IS TABLE 44 IN OUR REPORT, PRESENTS A 

2 DISTRIBUTION OF THE RATES OF SELECTION OF OFFENDERS FOR CERTAIN 

DISPOSITIONS AT SIX SUCCESSIVE STAGES IN THE PROCESS. 

IN ADDITION, WELL, ROW 7 SHOWS THE COMBIMED EFFECTS OF 

ALL THE DECISIONS IN THE SYSTEM. AND THE PURPOSE OF THIS TABLE 

3 

4 

5 

& & 1S TO PROVIDE MORE DETAIL ON THE WAY IN WHICH CASES ARE DISPOSED 

v J OF AT DIFFERENT STAGES IN THE FROCESS. 

a "AND COLUMN B INDICATES THE RATES OF DISPOSITION AT EACH 

2 OF THESE VARIOUS STAGES. AND I THINK, I SAY BY WAY OF 

10 BACKGROUND AGAIN THAT THESE DATA DO NOT PRESENT ANY MEASURES OF 

i DISPARITY AND THERE ARE NO ADJUSTMENTS. IT-S SIMPLY TQ PROVIDE 

12 AN OVERVIEW AND TO SUGGEST WHERE YOU MIGHT FIND THE LIKELY 

13 SOURCE OF THE RACIAL EFFECT THAT WE SEE AND HAVE SEEN WHEN WE 

14 EXAMINE THE COMBINED EFFECTS OF ALL THE DECISIONS IN THE SYSTEM. 

15 AND THE FIRST SUGGESTION IS PROVIDED IN ROW 2, WHERE WE 

16 LOOK AT THE GUILTY PLEA TO VOLUNTARY MANSLAUGHTER AMONG CASES 

17 THAT HAVE BEEN INDICTED FOR MURDER. AND IF YOU SEE THERE. IF YOU 

18 LOOK AT THAT ROW OVER IN COLUMNS C. D. E AND F, PARTICULARLY 

. i? FOCUSING ON COLUMN F, WE SEE THAT THE, AMONG THE BLACK 

20 DEFENDANT-BLACK VICTIM CASES. THAT OVER FIFTY PERCENT OF THOSE 

21 CASES MOVE OUT OF THE SYSTEM AT THIS STAGE IN THE FORM OF A 

22 GUILTY PLEA TO VOLUNTARY MANSLAUGHTER. 

23 | WE SEE ~~ 

24 @. YOURE REFERRING THERE TO COLUMN E? 

25 Ae npn, YES.       
  
    

 



  
  

  

  

  

399 
BALIUS — DIRECT 

1 WE SEE THAT IN CONTRAST —-- 

2 THE COURT: THAT S NOT WHAT COLUMN E SAYS. IS THAT 

2 |WHAT’S BOTHERING YOU, MR. BOGER? 

3 MR. BOGER: I THOUGHT I HEARD HIM TALK ABOUT BLACK AND 

5 BLACK COMBINATIONS IN COLUMN F, AND —-— 

& THE COURT: AND MORE THAN FIFTY PERCENT AND -- YOU“RE 

7 TALKING ABOUT "E"? 

8 THE WITNESS: YES. 

? THE COURT: OKAY. 

10 THE WITNESS: IF I SAID "B", I APOLOGIZE. YES, “E", 

11 THE COLUMN I WAS REFERRING TO. AND WE SEE THAT HALF OF THOSE 

12 CASES DROP OUT OF THE SYSTEM AT THIS STAGE, WITH A PLEA TO 

13 VOLUNTARY MANSLAUGHTER. 

14 THE NEXT POINT, I THINK, THATS WORTH NOTING HERE IS AS 

15 BETWEEN BLACK AND WHITE OFFENDERS WHO HAVE WHITE VICTIMS, YOU 

16 CAN SEE HERE THAT AMONG THOSE WHO PLEAD OUT OF THE SYSTEM. THIS 

17 IS A COMPARISON OF COLUMNS C AND D, IN ROWS 2 AND 3, YOU CAN SEE 

18  |THAT THE WHITE OFFENDERS. THE WHITE VICTIMS ARE MUCH MORE LIKELY 

a 19 TO GO OUT ON A PLEA TO VOLUNTARY MANSLAUGHTER THAN ARE THE BLACK 

20 OFFENDERS WITH A WHITE VICTIM: AND THAT AMONG THE BLACK 

21 OFFENDERS WITH A WHITE VICTIM PLEADING OUT, THEY TEND TO BE MUCH 

22 MORE LIKELY TO GO OUT ON A PLEA TO MURDER THAN DO THE WHITE   <3 OFFENDERS. 

24 THE NEXT POINT OF INTEREST THAT SUGGESTS WHAT MAY BE 

23 THE SOURCE OF DISPARITIES IS PROVIDED IN ROW 5S, WHICH LOOKS AT 

    
  

 



    

  

  
  

  

BALDUS - DIRECT 

1 THE RATES AT WHICH CASES THAT RESULTED IN A MURDER CONVICTION 

2 TRIAL AND ARE ADVANCED TO A PENALTY TRIAL. 

3 AND HERE, WE SEE A SHARP DIFFERENCE IN THE RATES AT 

4 WHICH BLACK OFFENDERS WHO HAVE BEEN FOUND GUILTY OF MURDERING A 

5 WHITE GO TO A PENALTY TRIAL AS CONTRASTED WITH THE RATE IN CASES 

& WITH A WHITE DEFENDANT AND A WHITE VICTIM. : 

7 ALSO WE CAN SEE THAT THE RATE FOR WHITE VICTIM CASES 

3 GENERALLY IS SUBSTANTIALLY HIGHER THAN IT IS FOR BLACK VICTIM 

2 CASES. 

10 FINALLY, WHEN WE REACH LEVEL 4. WHERE WE LOOK AT THE 

12 IMPOSITION OF DEATH SENTENCE AT PENALTY TRIAL, HERE WE SEE A 

12 | CHANGE IN THE PRECEDING PATTERN. THAT IS, THAT HERE, WHILE THE 

13 OFFENDERS WHO HAVE KILLED A WHITE APPEAR TO BE TREATED THE SAME 

14 AS BLACK OFFENDERS, INDEED THE RATE OF DEATH SENTENCE IS A 

13 FRACTION LOWER, FOUR PERCENTAGE POINTS LOWER. 

16 HOWEVER, WHEN WE COMPARE THE WHITE VICTIM CASES WITH 

17 THE BLACK VICTIM CASES, WE SEE A SLIGHT DISPARITY IN THESE 

ie UNADJUSTED FIGURES. THAT IS. A COMPARISON OF THE .43 IN COLUMN 

iw 19 E FOR THE BLACK DEFENDANT-BLACK VICTIM CASES AS CONTRASTED WITH 

20 THE SOMEWHAT HIGHER LEVELS AMONG THE WHITE VICTIM CASES. AGAIN 

Z1 I MENTION THESE ARE ALL WITHOUT ADJUSTMENTS FOR BACKGROUND 

22 FACTORS. 

£3 | THE COURT: WHAT THAT SAYS, IF I UNDERSTAND IT. AND LET 

24 ME JUST STATE IT, IS THAT A BLACK DEFENDANT WITH A WHITE VICTIM 

Pit) HAS GOT A FOUR PERCENT HIGHER CHANCE OF CETTING THE DEATH       
  

 



  

  

  

  

S00 

BALDUS — DIRECT 

PENALTY IF ADVANCED THAN A WHITE. 

  
AND THEN UNDER E AND F, A BLACK DEFENDANT WITH A BLACK 

VICTIM HAS A SEVEN PERCENT LESS CHANCE OF GETTING THE DEATH 

PENALTY THAN A WHITE-BLACK, IS THAT RIGHT? 

THE WITNESS: I DID NOT -- I LOST THE TRAIN OF WHERE 

YOUR HONOR WAS HEADING THERE AT THAT POINT. YOUR HONOR. 

THE COURT: I“M LOOKING AT LINE &, I“M NOT GOING —- 

THE WITNESS: YES. OKAY. 

THE COURT: ~~ ANYWHERE, IM JUST TRYING TO UNDERSTAND 

WHATS HERE. 

WE“VE GOT A SIXTY PERCENT PROBABILITY RATE —— 

THE WITNESS: THATS RIGHT. 

THE COURT: ~—- FOR BLACK~-WHITE, AND A 3&6 PERCENT FOR   WHITE-WHITE. 
| THE WITNESS: THAT’S RIGHT. YOUR HONOR. 

THE COURT: THE WHITE HAS A LITTLE BIT OF AN ADVANTAGE 

THERE. 

THE WITNESS: THAT’S RIGHT. 

THE COURT: AND THE ADVANTAGE FLIP FLOPS WHERE THE RACE 

OF THE VICTIM IS BLACK. IN OTHER WORDS, THE ADVANTAGE GOES TD 

THE BLACK DEFENDANT WHERE THE VICTIM IS ELACK. 

THE WITNESS: OH, YES. 

THE COURT: OKAY. I“M READING IT. I WANTED TO MAKE 

SURE 1 WAS READING IT RIGHT. 

THE WITNESS: YES.     
  

 



  

  

  

701 

BALDUS - DIRECT 

1 BY MR. BDGER: 

4 @. WHAT CAN YOU CONCLUDE FROM DB-93 AND -4, VIEWED TOGETHER? 

A. WELL, IT SUGGESTS A HYPOTHESIS. THE HYPOTHESIS SUGGESTED IS 

THAT THE DECISION TO TAKE CASES CUT ON VOLUNTARY MANSLAUGHTER 

PLEAS MAY BE AN IMPORTANT POTENTIAL SOURCE OF THE OVERALL RACE 

OF VICTIM EFFECT THAT WE SEE, AND THAT THE DECISION TO ADVANCE A 

CASE TO A PENALTY TRIAL APPEARS AS A LIKELY CANDIDATE TO EXPLAIN 

MUCH OF THE RACE OF VICTIM EFFECT, AND POSSIBLY THE RACE OF 

B
R
 
BE
 

S
E
 

E
E
 

DEFENDANT EFFECT WITHIN WHITE VICTIM CASES, AND THAT THE 

10 UNADJUSTED NUMBER SUGGESTS THE HYPOTHESIS THAT THE RACE OF THE 

11 VICTIM MAY HAVE SOME EFFECT IN THE DEATH SENTENCING DECISIONS AT 

12 PENALTY TRIALS. IT DOES NOT SUPPORT MUCH CONFIDENCE THAT ONE   13 WOULD FIND A RACE OF DEFENDANT EFFECT AT THAT STAGE, HOWEVER. 

14 | MR. BOGER: YOUR HONOR, AT THIS TIME I WOULD MOVE THE 

13 ADMISSION OF DB-93 AND -94 INTO EVIDENCE. 

16 MS. WESTMORELAND: YOUR HONOR, I WOULD ADD AN 

17 = ADDITIONAL OBJECTION TQ THESE 2 EXHIBITS. IT SEEMS TO ME THESE 

is GET BACK TQ THE PROBLEM OF SOME OF THE EARLIER EXHIBITS, IN NOT 

Ww 15 ACCOUNTING FOR ANYTHING EXCEPT FOR THE SENTENCING OUTCOME. AS 

20 RACE OF THE DEFENDANT AND RACE OF VICTIM. THAT MAKES THESE   
21 DOCUMENTS EVEN LESS RELEVANT THAN SOME OF THE INTERVENING 

22 DOCUMENTS. 

23 | MR. BOGER: YOUR HONOR, MY RECOLLECTION OF THE SMITH 

=4 VERSUS BALKCOM FOOTNOTE IS THAT THE FIFTH AND ELEVENTH CIRCUITS 

23 INDICATED INTEREST NOT ONLY IN THE POWER OF POSSIBLE RACIAL       
 



  

  

  

BALDUS ~ DIRECT 

1 FACTORS CONTROLLING FOR A WIDE VARIETY OF OTHER FACTORS. BUT   
2 INTEREST IN HOW THE CASES WERE DISPOSED OF AS THEY MOVED THROUGH 

3 THE SYSTEM FROM INDICTMENT TO GUILTY PLEA. TO ADVANCEMENT TO 

4 GUILT TRIAL AND PENALTY TRIAL. 

hv’ 1 WOULD SUGGEST THAT DB-93 AND 94 DO PRECISELY THAT. 

a 6b as FROFESSOR BALDUS MADE IT IN CLEAR IN HIS TESTIMONY, THERE ARE 

7 NO CONTROLS AT THIS POINT, BUT THE FLOW OF CASES THROUGH THE 

38 SYSTEM AND THE POSSIBILITY THAT THE FLOW ITSELF WOULD FULLY 

? ACCOUNT FOR RACIAL VARIABLES IS SOMETHING THAT THESE TABLES DO 

10 ADDRESS IS, I SUBMIT IS RELEVANT. 

11 THE COURT: I WILL ADMIT IT, AND THE REASON THAT I WILL 

12 ADMIT IT IS PRIMARILY FOR WHAT IS SHOWN ON ROW &. I THINK IT 

13 HAS LITTLE IF ANY PROBATIVE WEIGHT OF ANY HYPOTHESIS AS TO WHAT 

14 IS PRESENTED PARTICULARLY IN 1, 2, 3, 4, BUT .IT IS A BASIS FROM 

13 WHICH I EXPECT. BASED ON THE PATTERN YOU-VE ESTABLISHED, THAT HE 

146 DECIDED TO GO A STEP FURTHER. AND FOR PROCESS PURPOSES I WILL 

17 LET IT COME IN IN TOTO. AND FOR EVIDENCE ON THE FROOF OF THE 

18 MATTERS ASSERTED IN LINE &, I WILL LET IT IN. 

Ww 19 MR. BOGER: WELL, I HAD MOVED ALSO 93. AS WELL. YOUR 

20 HONOR. I THANK YOU FOR YOUR RULING ON 94, BUT -- 

21 THE COURT: EITHER %3 DOESN’T FROVE ANYTHING OF ANY 

<2 SIGNIFICANCE OR I DON’T YET UNDERSTAND IT. I DON“T KNOW WHICH. 

23 MR. BOGER: EITHER WOULD TROUBLE ME, YOUR HONOR. BUT —— 

24 I BELIEVE WHAT PROFESSOR BALDUS WAS DOING AT THAT POINT WAS 

23 SIMPLY TRYING TO SKETCH OUT VERY QUICKLY IN A SIMPLE TABLE THE         
 



  

  

  

  

  

  

| 203 

BALDUS ~ DIRECT 

OVERALL RATE AT WHICH WHITE VICTIM CASES AS OPPOSED TO BLACK 

VICTIM CASES PROCEEDED THROUGH THE SYSTEM. AND THE OVERALL RATE 

{oR PROPORTIONS AT WHICH BLACK DEFENDANT-WHITE VICTIM CASES 

STAYED WITHIN THE SYSTEM. 

MY SUGGESTION IS THAT HE. THE TABLE REFLECTS. FOR 

EXAMPLE. THAT IN THAT COLUMN C, WHAT YOUVE GOT ARE BLACK 

DEFENDANT-WHITE VICTIM CASES AT THE OUTSET OF THE SYSTEM 

CONSTITUTING ROUGHLY 10 PERCENT OF THE TOTAL POOL OF CASES 

INDICTED. AND THAT THEY WIND UP BEING ROUGHLY 40 PERCENT DOWN IN 

ROW 7. SO WHAT WE SEE IS THAT WHERE THEY ARE A SMALL GROUP AT 

THE START. AT THE WINNOWING OUT PROCESS CONTINUES THROUGH THE 

SYSTEM, THEIR PROPORTION RELATIVE TO THE WHOLE INCREASES BECAUSE 

THEY REMAIN IN THE SYSTEM DISPROPORTIONATELY WHERE OTHER CASES 

ARE DROPPED OUT. AND THE SAME IS TRUE WITH RESPECT TO THE WHITE 

VICTIM CASES ANALYZED IN COLUMN B. 

THE COURT: MR. BOGER, I WILL ADMIT IT TQ THE EXTENT 

THAT IT SETS THE FOUNDATION FOR A NEXT STEP. I DONT THINK IT 

DEMONSTRATES ANY FACT OF CONSEQUENCE IN THE CASE WITH SUFFICIENT 

RELIABILITY TQ ADMIT IT. | 

MR. BOGER: RIGHT, YOUR HONOR. 

BY MR. BOGER: 

PD. NOW, PROFESSOR BALDUS, THE JUDGE, I THINK, HAS ANTICIPATED 

THAT YOU MIGHT WELL HAVE DONE SOME FURTHER ANALYSES THAT 

REFLECTED MORE PARTICULARLY ON THE PROSECUTORIAL DECISIONS TO 

MOVE A CASE TO THE DEATH PENALTY STAGE AND THE JURY DECISIONS     
  

 



    
  

  

  

  

04 

BALDUS - DIRECT 

i 

| 
| 

! 
| 

| THEN OF WHETHER OR NOT TO IMPOSE DEATH. 

kJ)
 

i 1D LIKE TO DIRECT YOUR ATTENTION TO WHATS BEEN MARKED 

| 
'AS DB-95 FOR IDENTIFICATION —— 

S
S
 

MR. BOGER: -— AND AT THE SAME TIME INFORM THE COURT 

A THAT IN DUR REVIEW LAST EVENING OF DB-95., A TYPOGRAPHICAL ERROR 

WAS NOTED. 

I HAVE SUBSTITUTE PAGES OF BOTH DB-93 AND DB-%6 WHICH 1 

& 

7 

a WOULD LIKE TO SUBSTITUTE AT THIS TIME, IF I MIGHT. 

9 I'LL GIVE THE COURT REPORTER A COPY FOR THE RECORD AND 

0 A COPY FOR THE COURT. 

11 THE COURT: FINE. THANK YOU. THAT IS -935 AND -94&7 

}2 MR. BOGER: THAT'S RIGHT, YOUR HONOR. 

13 : THE COURT: HAVE YOU SEEN THE NEW ONE, MS. 

14 WESTMORELAND? 

hy MS. WESTMORELAND: NO. I HAVEN‘T. 

16 MR. BOGER: I-M GIVING COPIES TO COUNSEL FOR THE STATE 

17 [RIGHT NOW. 

13 BY MR. BOGER: 

w 19 Q. PROFESSOR BALDUS, DO YOU HAVE DB-95 AS AMENDED? 

20 THE COURT: WAIT JUST A MINUTE. 

21 MR. BOGER: FORGIVE ME. 

22 THE COURT: IF I MOVE MY HAND, MY WHOLE BOOK COMES 

23 APART IN MY LAP. 

24 WHAT IS 957 IS THAT TABLE 4467 

23 THE WITNESS: YES. YOUR HONOR.       
 



  

  

  
  

  

203 

BALDUS - DIRECT 

1 | THE COURT: ALL RIGHT. GQ AHEAD TO -- WAIT A MINUTE. 

Zz I HOPE I PUT THE RIGHT ONES BACK IN. 

3 WHERE I3 THE TYPOGRAPHICAL ERROR? 

4 THE WITNESS: ITS ON DB-9S. IS THAT THE ONE YOU -- 

4]
 THE COULRT: TABLE 447? WHERE IS IT? 

& THE WITNESS: ITS OVER IN COLUMN E., IF IT SAYS “IF 

7 STATISTICALLY SIGNIFICANT AT .10," TYPED IN, YOU‘VE GOT THE 

8 RIGHT ONE. 

4 MR. BOGER: YOUR HONOR. ILL BE HAPPY TD HAVE SOMEONE 

10 TAKE IT AND ~- 

11 THE COURT: THAT'S ALL RIGHT. ILL DO IT AT —- 

12 THE WITNESS: THAT .10, YOUR HONOR, THATS THE ONLY 

13 TYPO ON THAT PAGE. 

14 THE COURT: ILL JUST MAKE THAT BY HAND. 

15 oKAY. GO AHEAD. 

1&6 BY MR. BOGER: 

17 @. PROFESSOR BALDUS, DO YOU HAVE THE AMENDED COPY OF DB-937 

1a A. YES. 

he 19 QR. CAN YOU IDENTIFY THE DOCUMENT? 

20 A. YES. DB-95 IS TABLE 44 FROM OUR REPORT AND IT REPORTS THE   
| 

21 RESULTS OF MULTIPLE REGRESSION ANALYSES. IN WHICH WE CONTROL FOR 

| 

22 VARIETY OF BACKGROUND FACTORS. 

23 | THESE ANALYSES FOCUS ON THE FPROSECUTORIAL DECISION TO 

<4 ADVANCE THE CASE TO A PENALTY TRIAL IN CASES WHERE A CONVICTION 

25 OF MURDER HAS BEEN OBTAINED AT A GUILT TRIAL.     
  

      

 



  

  

  

  

  

a
]
 

P06 

BALDUS - DIRECT 

1 THIS IS THE FIRST TABLE THAT WE HAVE PRESENTED THAT 

< INCLUDES THE RESULTS FROM BOTH THE CHARGING AND SENTENCING, AND 

3 PROCEDURAL REFORM STUDIES. 

4 WE INCLUDE THE RESULTS FROM OUR ANALYSES IN THE 

S PROCEDIJRAL REFORM STUDY HERE, BECAUSE THAT STUDY ALLOWS US TO 

& |FOCUS ON THESE LAST TWO STAGES OF THE CHARGING AND SENTENCING 

7  |PROCESS. 

8 PART 1 OF DB-9S PRESENTS THE RESULTS OBTAINED IN THE 

9  |ANALYSES IN EACH OF THESE STUDIES WITH RESPECT TO THE 

10 PROSECUTORIAL DECISION TO ADVANCE THE CASE TO A PENALTY TRIAL. 

11 PART A OF SECTION 1 INDICATES THE RACE OF VICTIM 

12 EFFECTS ESTIMATED IN THE ANALYSES, WHEREAS PART B PRESENTS THE 

13 RACE OF DEFENDANT EFFECTS ESTIMATED, 

14 WE STARTED WITH A RELATIVELY SMALL NUMBER OF BACKGROUND 

15 CONTROL VARIABLES. AND THEN PROCEEDED TQ INCLUDE MORE VARIABLES. 

14 THE RESULTS FOR THE SMALLER ANALYSIS ARE FRESENTED IN 

37 COLUMN B, AND THEY INDICATE WITH RESPECT TO THE RACE OF VICTIM, 

13 THAT IS, IN ROW ROMAN NUMERAL IA, THAT IN THE CHARGING AND 

Ww 19 SENTENCING STUDY, AFTER SIMULTANEOUS ADJUSTMENT FOR ALL THE 

20 STATUTORY AGGRAVATING FACTORS. THAT WHITE VICTIMS HAD A 24 

=1 PERCENTAGE POINT HIGHER CHANCE, CORRECTION, WHITE VICTIM CASES 

22 HAD A 24 PERCENTAGE POINT HIGHER CHANCE OF ADVANCING TO A 

23 PENALTY TRIAL THAN DO DEFENDANTS WITH BLACK VICTIMS. 

24 THE SECOND ROW LABELED “PROCEDURAL REFORM STUDY" SHOWS 

Piel THE CO-EFFICIENT ESTIMATED IN AN IDENTICAL ANALYSIS IN THAT       
 



  
  

  

  

  

  

| 207 
BALDUS - DIRECT 

1 STUDY. 

2 THE PRINCIPAL DIFFERENCES IN THE DATA INVOLVED IN THESE 

3 | TWD ANALYSES ARE THAT THE CHARGING AND SENTENCING STUDY HAS 

4  |APPROXIMATELY FIFTY MORE PENALTY TRIAL CASES IN THE ANALYSIS, 

S AND THE ADDITIONAL VARIABLES THAT WERE NOT AVAILABLE IN THE 

6 PROCEDURAL REFORM STUDY. 

7 MOVING ACROSS THE PAGE TO COLUMN C. WE SEE THE RESULTS 

8 OBTAINED WHEN WE CONTROL FOR ALL OF THE STATUTORY AGGRAVATING 

® FACTORS, AS WELL AS A LARGE NUMBER OF MITIGATING FACTORS. 

10 THESE ARE THE SAME VARIABLES THAT WE USED IN THE 

11 ANALYSIS THAT WAS DISCUSSED YESTERDAY, OF STATUTORY AGGRAVATING 

12 FACTORS AND A SUBSTANTIAL PORTION OF MITIGATING FACTORS IN THE 

13  |FILE. AND HERE YOU CAN SEE THAT IN THE CHARGING AND SENTENCING 

14 STUDY, THE RACE EFFECTS AT THIS STAGE ARE NOT AFFECTED. THEY 

15 SLIGHTLY INCREASED. 

16 IN THE PROCEDURAL REFORM STUDY. THEY’RE SUBSTANTIALLY 

17 |THE SAME AS WELL: A DECLINE OF ONE OR TWO FERCENTAGE POINTS. 

13 FINALLY, WHEN WE MOVE OVER TO D AND E, WE SEE THAT IN 

w 19 COLUMN D, THE RESULTS WHEN ALL THE FACTORS IN THE FILE WERE   20 INCLUDED AS SIMULTANEOUS BACKGROUND CONTROLS -- THAT IS, IN 

| 
21 COLUMN D, WE CONTROLLED SIMULTANEOUSLY FOR SOME 230 VARIABLES 

5 

22 AND IN THE PROCEDURAL REFORM STUDY. WE INTRODUCED BACKGROUND 

<3 CONTROLS FOR OVER APPROXIMATELY TWO HUNDRED BACKGROUND 

24 VARIABLES, ALL SIMULTANEOUSLY CONTROLLED IN ONE ANALYSIS. AND 

23 ONE CAN SEE THAT THE INTRODUCTION OF THOSE ADDITIONAL BACKGROUND       
  

 



  

  

(&
 

rJ
 

N
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o
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  — p————— ———— ——————— ———_ —_. — » - = bn 

  

08 

BALDUS - DIRECT 

CONTROLS REDUCES THE RACE EFFECT ASSOCIATED WITH THE VICTIM, BUT 

THAT IT STILL IS SUBSTANTIAL AND STRONG. 

FINALLY,» IN COLUMN E, WE SEE THE RESULTS OBTAINED WHEN 

WE PRODUCED A SLIGHTLY MORE PARSIMONICUS MODEL THAT WAS 

GENERATED THROUGH A STEPWISE REGRESSION ANALYSIS. LIMITING THE 

BACKGROUND FACTORS OF THOSE NON-RACIAL VARIABLES THAT WERE 

STATISTICALLY SIGNIFICANT AT THE .10 LEVEL, AND WE SEE THERE 

RACE EFFECTS PERSIST STRONGLY WITH A HIGH LEVEL OF STATISTICAL 

SIGNIFICANCE. 

THE STRIKING THING ABOUT THESE ANALYSES, I BELIEVE, IS 

THAT THE PATTERN ACROSS ALL THESE ANALYSES IS BASICALLY THE SAME 

IN THE TWO STUDIES. THE MAGNITUDE OF THE EFFECTS IS LARGER IN 

THE CHARGING AND SENTENCING STUDY, BUT THE CONSISTENCY ACROSS 

THESE ANALYSES WHICH ARE BASED ON ENTIRELY DIFFERENT DATA SETS 

DEVELOFED WITH DIFFERENT INSTRUMENTS FROM DIFFERENT SOURCES OF 

DATA, IS STRIKING EVIDENCE IN MY OPINION OF THE EFFECT THAT RACE 

OF VICTIM HAS AT THIS STAGE IN THE CHARGING AND SENTENCING 

PROCESS. 

NOW. YOUR HONOR, --— 

BY MR. BOGER: 

@. NOW, THIS STAGE IS THE STAGE WHERE THE PROSECUTOR DECIDES 

WHETHER OR NOT TO GO ONTO A PENALTY PHASE AFTER A CONVICTION? 

A. YES. 

IM NOT SUGGESTING THAT THAT DECISION IS ALWAYS MADE BY 

THE PROSECUTOR ALONE. ALL IM SAYING, WHATEVER IS INVOLVED IN       
  

 



  
    

  

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BALDUS - DIRECT 

MAKING THAT DECISION, BECAUSE SOME OF OUR CORRESPONDENCE WITH 

ATTORNEYS SUGGEST THAT IN, AND SUGGESTIONS HAVE BEEN MADE BY 

PROSECUTORS IN CORRESPONDENCE, THAT IN SOME OCCASIONS THE JUDGE 

PLAYS A ROLE IN THAT DECISION AS WELL. IT IS NOT STRICTLY A 

PROSECUTORIAL DECISION. BUT IT’S PLAIN THAT THE PROSECUTOR MUST 

INITIATE THE ACTION IN THE FIRST PLACE. 

THE COURT: YOU MEAN SOMETHING LIKE, “MR. DISTRICT 

ATTORNEY, YOU DON‘T SERIOUSLY MEAN TO TELL ME THAT YOU-RE GOING 

TO ASK FOR THE DEATH PENALTY IN THIS CASE." OR -- 

THE WITNESS: THAT'S PRECISELY ~-- 

THE COURT: ~—— SOMETHING THAT THAT? 

THE WITNESS: EXACTLY. THE RECORD WILL SHOW THAT A 

JUDGMENT OF GUILT WAS ENTERED, BY THE JURY, AND THE JUDGE 

ENTERED A LIFE SENTENCE, PERIOD, END OF REPORT. NO MORE IN THE 

FILE THAN THAT. YOUR HONOR. 

SO IT MAY, ITS NOT STRICTLY. I THINK, A PROSECUTORIAL 

DECISION. 

THE ONLY EVIDENCE WE HAD IS WHETHER OR NOT THERE WAS A 

PENALTY TRIAL. 

BY MR. BOGER: 

| 

QR. DID YOU CONDUCT A SIMILAR ANALYSIS. SAY, FOR THE RACE OF THE 

DEFENDANT AS WELL? 

A. YES, WE DID. AND THOSE RESULTS ARE PRESENTED IN PART i, 

SUB-B, SUB—~1 AND SUB-2 OF DB-9% AND THEY SHOW IN THE CHARGING 

AND SENTENCING STUDY SUBSTANTIAL RACE OF DEFENDANT DISPARITIES       
  

    

 



      

  

  

  

P10 

BALDUS ~ DIRECT 

i REGARDLESS OF THE BACKGROUND FACTORS CONTROLLED FOR. 

  2 THE PROCEDURAL REFORM STUDY. IN CONTRAST, SHOWS MUCH 

3 SMALLER RACIAL EFFECTS ASSOCIATED WITH RACE OF DEFENDANT. NONE 

4 OF WHICH ACHIEVED A LEVEL OF STATISTICAL SIGNIFICANCE. 

3 I MIGHT ADD IN CONNECTION WITH THE PROCEDURAL REFORM 

STUDY DATA HERE, YOUR HONOR, THAT THOSE, THAT THAT ANALYSIS 

INCLUDED ALL THE DATA SO THAT. THAT IN ALL THE DATA CONCERNING 

PENALTY TRIALS, AND THOSE MEASURES OF STATISTICAL SIGNIFICANCE.   

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GIVE US SOME ESTIMATE. HOWEVER. OF THE LIKELIHOOD THAT THE 

10  |RANDOM CHANCE FACTORS OPERATING IN THE SYSTEM MIGHT BE THE 

11 SOURCE OF THOSE DISPARITIES. 

12 AGAIN, I THINK ITS IMPORTANT TO EXAMINE THE PATTERN 

13 [THAT ALL OF THESE CO-EFFICIENTS RUN IN THE SAME DIRECTION. AND 

14 THAT THEY PERSIST ACROSS EACH SEPARATE ANALYSIS, SUGGESTING THAT 

15 THE RACE OF DEFENDANT DOES HAVE AN EFFECT AT THIS STAGE, BUT 

16 AGAIN BECAUSE THE EFFECTS ARE NOT SYSTEMATIC AND STRONG ACROSS 

17 EVERY ANALYSIS. THE EVIDENCE DOES NOT SUGGEST THEY ARE NEARLY AS 

18 STRONG OR PERSISTENT AS WE OBSERVED WITH RESPECT TO THE RACE OF 

w 19 VICTIM. 

20 THE COURT: AND UNLIKE THOSE FOR THE VICTIM, I NOTICED 

21 YOUR STATISTICAL SIGNIFICANCE LEVELS ARE NOT GENERALLY AS GOOD. 

22 THE WITNESS: THATS TRUE, YOUR HONOR. THAT’S QUITE 

23 RIGHT, ESPECIALLY WITH RESPECT TO THE PROCEDURAL REFORM STUDY, 

24 THEY DO NOT APPROACH .0S5 LEVEL OF SIGNIFICANCE. 

23 THE. THE ONLY. AGAIN I EMPHASIZE WE HAVE HERE ALL THE       
  

 



  

  

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BALDUS - DIRECT 

CASES. THE QUESTION IS WHETHER THERE-“S AN EFFECT OUT THERE IS. 

IS IN PART ANSWERED BY THE FACT THAT YOU GET THESE SAME, THE 

SAME DIRECTION OF THOSE CO-EFFICIENTS., THAT IS. THAT EACH ONE IS 

IN A POSITIVE DIRECTION. IF THERE WERE NO EFFECTS OUT THERE, IT 

WOULD BE LIKELY YDU WOULD SEE THESE CO-EFFICIENTS BOUNCING 

ABOUT, SOME POSITIVE AND SOME NEGATIVE. THAT” S SOME EFFECT. BUT 

AS WE HAVE EMPHASIZED THROUGHOUT. THE EVIDENCE ON THE RACE OF 

THE DEFENDANT IN THIS SYSTEM, WHEN YOU LOOK AT IT AS A WHOLE, IS 

MUCH LESS SYSTEMATIC, MUCH LESS STRONG THAN IT IS WITH RESPECT 

TO THE RACE OF THE VICTIMS. THAT’S WHAT THE NUMBERS TELL US. 

THOSE ARE THE CONCLUSIONS THAT ARE SUPPORTED BY THESE DATA. 

NOW WHEN WE LOOK DOWN AT THE JURY SENTENCING DECISIONS 

WE SEE A DIFFERENT PATTERN. WE SEE WITH RESPECT TO THE RACE OF 

THE VICTIM THAT IN BOTH THE CHARGING AND SENTENCING STUDY. AND 

THE PROCEDURAL REFORM STUDY, THAT THERE ARE RACE OF VICTIM 

EFFECTS IDENTIFIED. 

IN THE ANALYSIS INVOLVING ALL THE STATUTORY AGGRAVATING 

FACTORS AND IN THE SUBSEQUENT ANALYSIS INVOLVING THE LARGE 

NUMBER OF MITIGATING FACTORS, AS WELL. 

THESE EFFECTS ARE REDUCED IN TERMS OF THEIR LEVEL OF 

STATISTICAL SIGNIFICANCE WHEN WE EXAMINE ALL OF THE FACTORS IN 

THE FILE. WE DID THIS BY WAY OF A STEPWISE REGRESSION, BECAUSE 

THE NUMBER OF BACKGROUND FACTORS YOUR HONOR. IS SO LARGE THEY 

WOULD COMPLETELY QUVERWHELM AN ANALYSIS WHERE THEY WERE ALL 

INCLUDED IN THE ANALYSIS AT ONE TIME. AND THE NUMBER OF     
  

  

  
  

  

 



  

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BALIUS - DIRECT 

BACKGROUND FACTORS CLOSELY APPROXIMATE THE NUMBER OF CASES IN 

EACH OF THE SAMPLES, IN FACT, IT EXCEEDS THE NUMBER OF CASES IN 

THE PROCEDURAL REFORM STUDY SAMPLE. THEREFORE. FOR TECHNICAL 

REASONS. YOU CAN‘T CONTROL FOR ALL OF THEM ALL SIMULTANEOUSLY. 

AGAIN, I THINK THE EVIDENCE HERE SUGGESTS THAT THERE 

ARE RACE OF VICTIM EFFECTS AT THIS LEVEL. THEY ARE NOT NEARLY 

AS STRONG OR PERSISTENT AS WHAT WE SEE AT THIS LEVEL, WHERE THE 

DECISIONS ARE TAKEN TO ADVANCE A CASE TO A PENALTY TRIAL. 

FINALLY, WE LOOK DOWN AT THE RACE OF DEFENDANT EFFECTS. 

AND HERE YOU SEE THE EXAMPLE OF A SYSTEM WHERE THERE APPEAR TO 

BE NO SYSTEMATIC EFFECTS AT ALL. 

YOU“LL NOTICE THAT THE CO-EFFICIENTS BOUNCE AROUND FROM 

POSITIVE TO NEGATIVE, IN FACT MOST OF THEM APPEAR ON THE 

NEGATIVE SIDE. AND NONE OF THEM EVEN BEGINS TO APPROACH A HIGH 

LEVEL OF STATISTICAL SIGNIFICANCE, OR EVEN A MODEST LEVEL, AND 

THESE ARE THE KINDS OF RESULTS THAT WOULD CLEARLY LEAD ONE TO 

CONCLUDE THAT THESE DISPARITIES YOU SEE HERE ARE VERY LIKELY THE 

RESULT OF CHANCE FACTORS OPERATING IN THAT SYSTEM, RATHER THAN 

|THE RESULT OF ANY REAL EFFECT IN THE SYSTEM. AND IF THERE IS 

ANY EFFECT, IT’S A VERY MODEST ONE. 

BY MR. BOGER: 

RA. PROFESSOR BALDUS, DO YOUR REMARKS WITH RESPECT TO THE JURY 

SENTENCING DECISION ON RACE OF DEFENDANT REFLECT THAT THERE IS 

NO RACIAL DISPARITY ON THE, ON DEFENDANT PARAMETER ANYWHERE IN 

THE SYSTEM OR ONLY AT THIS DECISION POINT? 

  

  

  

 



  
  

  

  
  

  

13 

BALDUS ~ DIRECT 

1 A. NO. THIS ANALYSIS FOCUSES ONLY ON BEHAVIOR OF THE JURORS 

2 WHO HAVE AN IMPORTANT EFFECT TO BE SURE IN THE PROCESS, BUT THEY 

3 OBVIOUSLY ARE NOT THE SOURCE OF THE RACIAL DISPARITY THAT WE SEE 

WHEN WE LOOK AT THE COMBINED EFFECTS OF ALL THE DECISIONS IN THE 

PROCESS. 

THE ANALYSIS THAT WE LOOKED AT FOR THE LAST DAY SHOW. 

REFLECTS THE DISPARITIES AND THE LIKELIHOOD THAT BLACK OFFENDERS +- 

PARDON ME —- THAT THE LIKELIHOOD THAT OFFENDERS OF BLACK AND 

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WHITE VICTIMS INDICTED FOR MURDER WILL END UP RECEIVING A DEATH 

10 SENTENCE. 

i1 IT APPEARS FROM THIS THAT THE JURY. THE JURIES IN THE 

12 PENALTY TRIALS HAVE A, TAKE RACE OF THE VICTIM INTO ACCOUNT TO A 

13 CERTAIN EXTENT. THATS WHAT‘S SUGGESTED BY 2 SUB A. BUT WITH 

14 SPECT TO THE DEFENDANT, IF ANYTHING, THEY HAVE A CORRECTIVE   
13 EFFECT IN TERMS OF ANY ADVERSE EFFECT OF EARLIER DECISIONS ON 

14 BLACK DEFENDANTS. IF ANYTHING, THESE DATA CONCERNING THE BLACK 

37 DEFENDANT AT A PENALTY TRIAL SUGGEST THAT THE BLACK DEFENDANTS 

18 |MAY BE SLIGHTLY BETTER OFF, BUT THE DISPARITIES ARE SO SMALL 

wo 1® THAT ONE CANT DRAW ANYTHING FROM THEM REALLY. 

20 THE COURT: AND THE SIGNIFICANCE OF ALL THE FIGURES IN 

21 “Ev COLUMN IS NOT AS GDOD AS ONE WOULD HOPE FOR. 

22 THE WITNESS: WELL, —— 

23 : THE COURT: NOT NEARLY SO SIGNIFICANT AS SOME OF THE 

24 OTHER FIGURES YOU‘VE BEEN ABLE TO PRODUCE -- 

2% THE WITNESS: THAT'S RIGHT.         
  

  

 



  

  
    

  

  

  

214 

BALDUS - DIRECT 

1 | THE COURT: --— AT THE JURY LEVEL. 

THE WITNESS: RIGHT, AT THE JURY LEVEL. THE EFFECTS ARE 

MUCH SMALLER. VYOU’RE TALKING ABOUT A FIVE PERCENTAGE POINT 

2 

3 

4 DIFFERENCE ON AVERAGE IN THESE FIGURES. 

S AND AGAIN I EMPHASIZE THAT THESE DISPARITIES REFLECT 

& THE AVERAGE EFFECT ACROSS ALL OF THE CASES, AND THE ANALYSES 

7 THAT WE“VE DONE WITH THE JURIES IN WHICH WE BREAK THEM OUT 

a ACCORDING TO HOW SERIOUS THEY ARE, HOW SERICUS THOSE CASES ARE. 

? SUGGEST THAT HERE ALSO, THAT THESE EFFECTS TEND TO BE 

10 CONCENTRATED IN THE MORE AMBIGUOUS. 

33 IN THE MID-RANGE OF CASES WHERE IT-S NOT SO CLEAR, IN 

12 JURY DECISION MAKING AS WELL, WITH RESPECT TO THE RACE OF THE 

13 VICTIM, WHEN THE CASES ARE REALLY HIGHLY AGGRAVATED, THERE IS 

14 ABSOLUTELY NO SIGN OF RACE OF THE VICTIM EFFECT. WHEN THEY RE 

13 NOT AT ALL NOT AGGRAVATED, THERE’S NO SIGN OF THE RACE OF THE 

1&6 VICTIM EFFECT. 

17 WHAT YOU’RE SEEING IN HERE ARE THE AVERAGE EFFECTS OF 

183 THOSE RELATIVELY SMALL POCKET OF CASES IN THE MIDDLE, AMONG ALL 

FS 19 THE CASES THAT COME BEFORE JURIES, WHERE THERE IS EVIDENCE OF A 

20 RACE OF VICTIM EFFECT. THATS WHAT WE SEE THE RESIDUE OF IN 

21 THESE OVERALL CD-EFFICIENTS HERE. 

za THE COURT: LET ME ASK YOU A QUESTION AT THIS POINT. 

23 ARE YOU FAMILIAR WITH ANY LITERATURE THAT WOULD SUGGEST 

24 AT AN EARLIER TIME PERIOD WHAT THE "EE" COLUMN MIGHT HAVE LOOKED 

25 LIKE UNDER JURY SENTENCING DECISIONS?       
  

 



  

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BALDUS - DIRECT 

THE WITNESS: YES, YOUR HONOR. I‘M FAMILIAR WITH THE 

LITERATURE, AND I“M ALSO FAMILIAR WITH SOME OF MY OWN ANALYSIS. 

THE COURT: WELL. I AM WONDERING IF THE SUPREME COURTS 

INSISTENCE ON CONSTITUTIONALLY DRAWN JURIES IS HAVING ANY EFFECT 

IN YOUR VIEW ON THE EVENHANDEDNESS OF JURY DECISION MAKING. 

THE WITNESS: WELL. IT IS MY OPINION THAT IT HAS HAD AN 

EFFECT. I BASE THAT OPINION ON -- 

THE COURT: A POSITIVE EFFECT? 

THE WITNESS: YES. 1 BASE THAT OPINION ON AN ANALYSIS 

OF JUST THE FIGURES YOU REFER TO. YOUR HONOR, ON A SAMPLE OF 

CASES DRAWN IN THE PRE-FURMAN PERIOD IN THIS STATE. AND IT’S A 

MUCH SMALLER SAMPLE TO BE SURE, SO I DON’T WANT TO MAKE TOO MUCH 

OF IT. IT“S MUCH SMALLER THAN THESE SAMPLES WE’RE DEALING WITH 

HERE. : 

BUT IT SHOWS IN TERMS OF JURY SENTENCING, IT SHOWS 

QUITE SIGNIFICANT RACE OF DEFENDANT EFFECTS. 

INTERESTINGLY, HOWEVER, IT DOESNT SHOW QUITE AS STRONG 

RACE OF VICTIM EFFECTS AS SOME OF THESE ANALYSES DO IN THE 

POST~-FURMAN PERIOD. 

THAT IS, THE DATA SUGGESTS BY THIS EARLIER WORK, WHICH 

1s NOT INCLUDED, I MENTION IN PASSING, IN OUR REPORT HERE, BUT 

THAT SUGGEST THAT THE RACE (OF DEFENDANT EFFECT IS DIMINISHED IN 

JURY SENTENCING IN THIS POST-FURMAN PERIOD, AND I BELIEVE ON THE 

BASIS OF MY STUDY OF THE SUBJECT THAT IT IS IN SIGNIFICANT PART 

ATTRIBUTED TO THE FACTS YOU ALLUDED TO, PLUS CHANGES IN     
  

  

 



  

  
  

  

  

  

BALDUS - DIRECT 

1 ATTITUDES. POPULATION. VARIETY OF FACTORS THAT WOULD PRODUCE 

  2 THAT EFFECT. PERHAPS AS WELL AS SOME IMPACT OF THE STATUTE. I 

3 DONT KNOW. 

4 BUT THE RACE OF THE VICTIM EFFECTS. HOWEVER, SEEM TO BE 

. LARGER THAN THEY WERE IN THE PRE-FURMAN PERIOD. THAT’S THE 

il b THING THAT STRUCK ME IN TERMS OF MAKING THAT COMPARISON. 

7 THE COURT: THAT IS CURIOUS. 

8 MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-93 

9 INTO EVIDENCE. | 

10 THE COURT: I WILL ADMIT IT UNLESS YOU HAVE ANY 

11 |PARTICULAR OBJECTION —- 

12 MS. WESTMORELAND: NO NEW OBJECTION. 

13 THE COURT: -- NEW OBJECTION BEYOND THOSE PREVIOUSLY 

14 (STATED. 

15 MR. BOGER: THANK YOU. 

16 THE COURT: ALL RIGHT, GO AHEAD, MR. BOGER. 95 IS 

17  |ADMITTED. 

13 MR. BOGER: THANK YOU. YOUR HONOR. 

w 19 BY MR. BOGER1 

20 |G. NOW, PROFESSOR BALDUS. HAVE YOU EMPLOYED ANY OTHER 

21 |STATISTICAL METHODS TO ANALYZE PROSECUTORIAL DECISION MAKING IN 

22 |THE CHARGING AND SENTENCING SYSTEM? 

23 |A. YES. WE’VE UNDERTAKEN A SERIES OF ANALYSES USING LOGISTIC 

24 REGRESSION PROCEDURES. 

bh
 

A Q. LET ME ASK YOU TO TURN TD DB-%& MARKED FOR IDENTIFICATION,       
  

 



  

  

  

  
  

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BALDUS - DIRECT 

THE AMENDED COPY. AND IF YOU WOULD, STATE THE DIFFERENCE BETWEEN 

THE AMENDED COPY OF DB-94 AND THE ORIGINAL THAT WE SUBMITTED 

EARLIER IN YOUR EVIDENCE BOOK? 

A. YES. THE DIFFERENCE IS THAT IN COLUMN A IN THE FOURTH ROW 

BELOW THE LINE, THE TEXT WAS NOT PROPERLY ADJUSTED. THAT SHOULD 

BE A “C" WHICH FOLLOWS AFTER "A" AND "B". IT WAS INADVERTENTLY 

GIVEN A SEFARATE NUMBER IN THE ORIGINAL OF THIS EXHIBIT.. 

@. ALL RIGHT, CAN YOU IDENTIFY THE AMENDED VERSION, THEN, OF 

DB~967 

A. YES. IT IS A PRESENTATION OF THE RESULTS OF THE LOGISTIC 

REGRESSION ANALYSES THAT WERE CONDUCTED OF THE DECISION TO 

ADVANCE A CASE TO A PENALTY TRIAL WITH BACKGROUND CONTROLS 

INTRODUCED, WERE A VARIETY OF LEGITIMATE NON-RACIAL FACTORS. 

THE RESULTS ARE FROM SUCH ANALYSES IN BOTH THE CHARGING AND 

SENTENCING AND PROCEDURAL REFORM STUDY. 

THE DIFFERENCE HERE IS IN THE TYPE OF REGRESSION 

ANALYSIS USED, AND THE LOGISTIC APPROACH HAS PARTICULAR 

RELEVANCE TO THE ANALYSIS IN THIS PROCEEDING, YOUR HONOR, 

BECAUSE THIS IS A PROCEDURE THAT RESTS ON A SOMEWHAT DIFFERENT 

ASSUMPTION THAN THE LEAST SQUARES ANALYSES DID. 

IT ASSUMES THAT THE EFFECTS OF VARIABLES ARE GOING TO 

BE MUCH LIKE THE EFFECTS THAT WE SEE IN CUR ANALYSIS OF THE 

DIFFERENT LEVELS OF SERIOUSNESS IN THE CASES. THAT IS, THE 

ASSUMPTION OF A LOGISTIC ANALYSIS IS THAT THE EFFECTS ARE GOING 

TO BE MORE IMPORTANT IN THE MIDDLE RANGE OF CASES, THAT IS, 

  

  

 



  

  
  

    

  

918 
BALDUS — DIRECT 

WHERE THE PROBABILITY OF SELECTION IS NOT AS HIGH. WE‘LL SEE A 

GREATER EFFECT. THAT'S A PROPERTY OF THE REGRESSION PROCEDURE. 

| WHEREAS, THE LEAST SQUARES REGRESSION ANALYSIS ASSUMES 

THAT THE EFFECT IS GOING TO BE THE SAME ACROSS ALL CATEGORIES OF 

RISKS PRODUCED BY OTHER FACTORS, THE LOGISTIC PREMISE LOOKS LIKE 

A CURVE LIKE THIS, IT RISES IN THE MIDDLE, DROPS AT EITHER END. 

AND SUGGESTS THAT THE FACTORS, NOT JUST THE RACIAL FACTORS, BUT 

ALL FACTORS WILL HAVE THEIR BIGGEST IMPACT IN THIS CATEGORY OF 

CASES. | 

SO FOR THAT REASON. IT HAS PARTICULAR APPLICABILITY IN 

|ANALYSIS OF DATA OF THE TYPE WE HAVE HERE. 

AND YOU CAN SEE IN LOOKING AT DB~96 THAT THE RESULTS OF 

THIS LOGISTIC ANALYSIS WITH RESPECT TO THE RACE OF VICTIM SHOW 

IN BOTH STUDIES, BOTH STUDIES, THE RESULTS IN BOTH STUDIES ARE 

IDENTIFIED IN COLUMN A, CHARGING AND SENTENCING STUDY, AND BELOW 

THAT THE PROCEDURAL REFORM STUDY. SHOW VERY SUBSTANTIAL RACE OF 

VICTIM CO-EFFICIENTS IN ALL OF THESE ANALYSES, AND HIGH LEVELS 

OF STATISTICAL SIGNIFICANCE. 

Gl. WHAT PROSECUTORIAL DECISION MAKING FUNCTIONS DOES THIS 

ANALYSIS FOCUS UPON? 

A. THIS FOCUSES ON THE DECISION TO ADVANCE THE CASE TO A 

PENALTY TRIAL. 

Q. ALL RIGHT. 

A. NOW, COLUMNS D AND E SHOW THE CO-EFFICIENTS IN THE DEATH 

ODDS MULTIPLIERS CALCULATED FROM THOSE CO-EFFICIENTS THAT RELATE       
  

 



  

  
  

  
  

  

212 

BALIUS - DIRECT 

TO THE RACE OF THE DEFENDANT. AND THEY ARE CONSISTENT WITH THE 

RESULTS WE SAW FROM THE LEAST SQUARES ANALYSIS EARLIER. THAT 

IS, IF THE CHARGING AND SENTENCING STUDY WE SEE EFFECTS THAT ARE 

NOT AS STRONG AS THE, THOSE ESTIMATED IN CONNECTION WITH THE 

RACE OF THE VICTIM, BUT THEY REACH LEVELS OF STATISTICAL 

SIGNIFICANCE, WHILE IN THE PROCEDURAL REFORM STUDY WE SEE VERY 

MODEST EFFECTS WHICH DO NOT ACHIEVE LEVELS OF STATISTICAL 

SIGNIFICANCE. 

SO THIS ANALYSIS PRESENTS MUCH THE SAME PICTURE THAT WE 

saW IN THE PREVIOUS EXHIBIT, DB-95, WHICH USED A DIFFERENT 

MULTIPLE REGRESSION PROCEDURE, THAT RESTS ON SOMEWHAT DIFFERENT 

TECHNICAL ASSUMPTIONS. 

MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-%26 

INTO EVIDENCE. 

MS. WESTMORELAND: SAME OBJECTIONS. YQUR HONOR. 

THE COURT: THIS IS FOCUSING ON THE DECISION MAKING AT 

THE POINT WHERE IT IS UP TO THE PROSECUTOR. THEORETICALLY. TO 

ADVANCE IT TO A PENALTY PHASE? 

THE WITNESS: YES. YOUR HONOR. 

THE COURT: THE FIVE LEGITIMATE FACTORS ARE THE FIVE 

AGGRAVAT ING CIRCUMSTANCES, OR CAN YOU —— 

THE WITNESS: NO, NO. THOSE FIVE LEGITIMATE FACTORS, 

YOUR HONOR, ARE THE FIVE THAT I REFERRED TO YESTERDAY. 

THE COURT: PRIOR FELONY OR SOMETHING. 

THE WITNESS: YES, YOUR HONOR. 

  

  
  

  

 



  

  

  

20 

BALDUS - DIRECT 
jo

o THE COURT: WILL YOU REFRESH MY RECOLLECTION OF WHAT 

2 THEY ARE? 

3 THE WITNESS: CERTAINLY. CERTAINLY. 

a THE COURT: WELL, YOU DON‘T HAVE IT EITHER, DO YOU? 
? 

THE WITNESS: WELL, I -—- (&
 

6 THE COURT: WAIT A MINUTE. WAIT A MINUTE. IT SEEMS TO 

7 ME FOR MY PURPOSES THAT ROMAN NUMERAL II. LINE ROMAN NUMERAL II 

8 AND LINE ROMAN NUMERAL “D* MIGHT BE THE MOST INTERESTING. SO 

? LETS TALK ABOUT THOSE FOR A MINUTE. 

0 THE WITNESS: ALL RIGHT, YOUR HONOR. 

3s THE COURT: GIVE ME SOME SORT OF AN IDEA OF THIS 

12 NON-ARBITRARY FACTOR. THAT IS A TERM THAT I DON’T KNOW THAT 

13 WE’VE DISCUSSED. WHAT DOES THAT REFER — 

14 THE WITNESS: THAT REFERS. YOUR HONOR. TO THE APFROACH 

13 THAT WE USED THAT WAS INSPIRED BY GODFREY V. GEORGIA, WHEREIN WE 

1&6 SOUGHT TO LIMIT THE BACKGROUND CONTROLS TO FACTORS THAT WERE 

17 FIRST, FROM AN A PRIORI STANDPOINT WERE LEGITIMATE TO CONSIDER. 

18 THAT 1S, WOULD NOT INCLUDE SUSPECT FACTORS THAT RELATED TO 

W 17 OFFENDERS SEX. INTELLIGENCE, SOCIO-ECONOMIC STATUS, ITS | 

20 LIMITED TO JUST TO LEGITIMATE MITIGATING-AGGRAVATING FACTORS. 

21 IT ALSO LIMITED THE VARIABLES TO AGGRAVATING FACTORS 

22 THAT HAD AN AGGRAVATING EFFECT IN THE ANALYSIS, AND MITIGATING 

23 FACTORS THAT HAD A MITIGATING EFFECT IN THE ANALYSIS. IF IT 

<4 WERE A VARIABLE THAT WAS PERCEIVED FROM THE STANDPOINT OF LAW TO 

23 HAVE A MITIGATING EFFECT, OR PRODUCE AN AGGRAVATING EFFECT. THAT     
  

 



  

  

  

  

221 
BALIUS ~ DIRECT 

WOULD NOT BE PERCEIVED FROM THIS PERSPECTIVE TO BE APPROPRIATE 

OR RATIONAL BASIS FOR IDENTIFYING SIMILAR CASES. IT WAS BASED 

ON THE JUDGMENT IN GODFREY. THAT THERE ARE CERTAIN CASES THAT 

CANNOT RATIONALLY BE USED TD DETERMINE WHAT CASES ARE COMPARABLE 

FOR PURPOSES OF EVALUATING ARBITRARINESS AND EVENHANDEDNESS OF 

TREATMENT OF CASES IN THE SYSTEM. 

MR. BOGER: YOUR HONOR, I HAVE COPIES OF THE TECHNICAL 

APPENDIX WHICH WOULD INCLUDE. I THINK, IT LOOKS LIKE SCHEDULE 8. 

THE LIST OF FACTORS THAT PROFESSOR BALDUS IS REFERRING TO. 

THE COURT: REFERRING TO NON-ARBITRARY FACTORS, QUOTE. 

UNQUOTE? 

MR. BOGER: THAT‘S CORRECT, YOUR HONOR. 

THE COURT: PASS IT UP AND LET ME LOOK AT IT. 

MR. BOGER: BE GLAD TO. 

THE COURT: IS IT IN ENGLISH? 

MR. BOGER: WE WORKED LAST EVENING. I THINK IT IS IN 

ENGLISH, YOUR HONOR. 

PROFESSOR BALDUS, I BELIEVE, HAS A COPY. AND I“LL GIVE 

A COPY TO THE CLERK, AND SUGGEST I‘M NOT GOING TO ADMIT IT, 

ITLL COME IN WITH THE FINAL REPORT. BUT FOR THESE PURPOSES IT 

CAN BE MARKED AS DB-96A FOR IDENTIFICATION. 

THE COURT: WHAT PAGE IS IT? 

THE WITNESS: THIS IS ON —-— IN THE APPENDIX, YOUR 

HONOR? 

THE COURT: WHAT PAGE AM I SUPPOSED TO LOOK AT?     
  

  

  

 



  

  

  

222 

BALDUS ~ DIRECT 
Fe
y THE WITNESS: SCHEDULE 12, YOUR HONOR. 

2 THE COURT: WHAT IS DEFENDANTS STATUS SYMPATHETIC 

3 MEASURE? 

a THE WITNESS: THAT IS A PERSON WHO IS RETIRED OR A 

5 STUDENT, YOUR HONOR. IT HAS A STATISTICAL EFFECT ON THE 

4 b BEHAVIOR OF THE PEOPLE IN THE SYSTEM IS THE REASON IT’S 

7 INCLUDED. 

8 THE COURT: OKAY. 

9 I DON’T KNOW, DO YOU INTEND TO OFFER THIS WHOLE PACKAGE 

10 YOUVE HANDED ME AS AN EXHIBIT? 

11 MR. BOGER: YOUR HONOR, IT‘S PART OF A TECHNICAL 

12 APPENDIX FOR PROFESSOR BALDUS” REPORT. WE INTEND TO OFFER THE 

13 ENTIRE REFORT. 

14 THE COURT: I HAVEN'T SEEN THAT AND I HAVE NO IDEA 

15 WHETHER I-LL ADMIT IT OR NOT. 

16 MR. BOGER: I RECALL YESTERDAY YOUR HONOR ASKED FOR 

17 ENGLISH DEFINITIONS OF SOME 75 FACTORS, AND WE WORKED TO PUT 

13 THAT TOGETHER, AND WE DIDN‘T KNOW WHAT ELSE MIGHT COME UP, SO 

w 19 WE PUT THE WHOLE PACKAGE BEFORE THE COURT. 

20 THE COURT: ALL RIGHT. WELL, THE RECORD OUGHT TO SHOW 

- THAT SCHEDULE 12 OF THE TECHNICAL APPENDIX AS TRANSLATED INTO 

22 ENGLISH IS NEEDED FOR THE UNDERSTANDING OF DB-946 AND AT LEAST 

23 SCHEDULE 12 IS ADMITTED. 

24 ALL RIGHT. NOW, THIS BRINGS UP A POINT THAT YOU HAVE 

5 MENTIONED SEVERAL TIMES. THIS DOES NOT TAKE INTO ACCOUNT A       
  

 



    

  
  

  

BALDUS - DIRECT 

1 FACTOR WHICH I WOULD IMAGINE VIRTUALLY EVERYBODY FAMILIAR WITH 

2 THE CRIMINAL JUSTICE SYSTEM WOULD SAY WOULD BE HIGHLY OPERATIVE 

3 AT THIS LEVEL. AND THAT“S STRENGTH OF THE EVIDENCE. 

4 DO WE ADDRESS THAT LATER? 

3 THE WITNESS: NO. IN THIS ANALYSIS. YOUR HONOR, WE 

4 & HAVE CONTROLLED FOR THE STRENGTH OF THE EVIDENCE BY LIMITING THE 

~4
 CASES TO THOSE THAT RESULTED IN A MURDER CONVICTION AT A JURY 

3 TRIAL. THIS ANALYSIS DOES NOT CONTAIN ANY INDEPENDENT MEASURES 

? OF THE STRENGTH OF EVIDENCE. WE DO NOT HAVE SUCH MEASURES IN 

10 THE PROCEDURAL REFORM STUDY. 

11 | HOWEVER, IN THE -- 

12 THE COURT: LET ME GIVE YOU A CLASSIC EXAMPLE. 

13 THE WITNESS: RIGHT. 

14 THE COURT: I DON‘T KNOW OF A MURDER CASE THAT IS MORE 

15 EXACERBATED THAN THE MURDER OF THE 20. 20, 40, HOWEVER MANY IT 

16 WAS. BLACK CHILDREN WE HAD IN ATLANTA A YEAR OR SO AGO. IF I 

17 UNDERSTAND WHAT WENT ON IN THAT CASE. THE DEATH PENALTY WASN-T 

18 SOUGHT. AND THE REASON THE DEATH PENALTY WASN'T SOUGHT WAS THAT 

w» 19 THEY DIDN‘T THINK THE EVIDENCE WAS STRONG ENOUGH TO ASK FOR IT. 

20 | MY ARMCHAIR VIEW IS THAT THAT OPERATES AN AWFUL LOT ON 

| 
21 THE PROSECUTORS DECISION MAKING. AND MY QUESTION TO YOU SIMPLY 

22 (IS, BEYOND WHAT YOQU’VE JUST SAID TO ME. HAVE YOU USED ANY OF THE 

23 STRENGTH OF EVIDENCE DATA THAT YOU DID COLLECT TO TRY TO LOOK AT 

24 IT AT THIS LEVEL? 

ra
 

n
 THE WITNESS: YOUR HONOR, -——     
  

  
  

 



      

  

  

BALDUS - DIRECT 

1 THE COURT: I KNOW YOU DIDN’T WITH THIS, THAT'S CLEAR, 

2 BUT HAVE YOU IN A SUBSEQUENT --— 

THE WITNESS: ACTUALLY THE PRECEDING ANALYSIS THAT WE 

4 EXAMINED USING THE LEAST SQUARES ANALYSIS. YOUR HONOR, DID 

3 INCLUDE CONTROLS FOR ALL OF DUR EVIDENTIARY FACTORS. THOSE WERE 

4 6 INCLUDED = . : 

7 THE COURT: TO THE EXTENT THEY WERE STATISTICALLY 

8 SIGNIFICANT. 

? THE WITNESS: NO, NO, YOUR HONOR. IN DB-95, -- 

10 THE COURT: IN COLUMN E? 

11 THE WITNESS: WELL. ACTUALLY, YOUR HONOR. IN COLUMN D. 

12 IT INCLUDED THEM ALL. WHETHER THEY WERE STATISTICALLY 

13 SIGNIFICANT OR NOT. THE ENTIRE FILE OF EVIDENTIARY VARIABLES 

13 THAT WE HAD —-. 

13 THE COURT: WHAT 1“M SUGGESTING TO YOU IS THAT ON THAT 

16 SORT OF BASIS IS IT WEIGHED EACH AND EVERY FACTOR EQUALLY. 

17 THE WITNESS: EACH AND EVERY FACTOR WENT INTO THE 

18 ANALYSIS. THEN THE ANALYSIS DETERMINES, ESTIMATES THE 

w 19 CO-EFFICIENT FOR EACH OF THOSE EVIDENTIARY FACTORS. AND GAVE IT | 

20 A WEIGHT, DEPENDING UPON ITS IMPORTANCE IN PREDICTING THE 

21 DECISION TO SEEK A DEATH PENALTY. 

22 THIS ANALYSIS THATS REPORTED HERE IN COLUMN D., YOUR 

23 HONOR, DB-95, ADJUSTS SIMULTANEOUSLY FOR ALL THE AGGRAVATING AND 

24 MITIGATING FACTORS AS WELL AS ALL THE EVIDENTIARY FACTORS, 

23 EVIDENTIARY VARIABLES THAT ARE IN OUR ANALYSIS. THEY ARE         
 



  

    
  

  

225 

BALDUS - DIRECT 

1 INCLUDED IN THIS ANALYSIS HERE. 

2 THE COURT: I UNDERSTAND THAT. 

3 BUT IF I UNDERSTAND WHAT YOU HAVE TOLD ME, JUST SEIZING 

ON THE WILLIAM WILLIAMS CASE AS AN EXAMPLE, MAYBE YOU CAN a 

3 RESPOND TO IT. I WOULD IMAGINE, AND LET”S JUST TAKE IT AS TRUE, 

& & THAT THE ONLY REASON THE DEATH PENALTY WASN‘T SOUGHT IN THAT 

iT CASE WAS THE STRENGTH OF THE EVIDENCE. 

8 AT THAT POINT IN TIME THAT BECOMES MORE EQUAL THAN ALL 

@ THE OTHER VARIABLES. 

10 NOW, I HAVE AN OPINION THAT THAT IS PROBABLY MORE 

11 IMPORTANT THAN ANY OTHER SINGLE VARIABLE ONCE YOU HAVE GOTTEN A 

12 MURDER CONVICTION, 

13 WILL WHAT YOU DID IN COLUMN D ON DB-93 TAKE INTO 

14 ACCOUNT THE FACT THAT THAT FACTOR MAY BECOME MORE IMPORTANT THAN 

15 ANY OTHER FACTOR, AT LEAST CONSCIOUSLY MAY BECOME MORE IMPORTANT 

1&6 THAN ANY OTHER FACTOR AT THAT LEVEL, AND GIVE DUE CONSIDERATION 

17 TO IT. IN OTHER WORDS, IF I REMEMBER YOUR HALOTHANE ANALYSIS, 

1a YOU SHOULD HAVE COME UP WITH THESE FIGURES BASED ON LITTLE 

w 12 CLUSTERS OF SIMILAR CASES WHERE EVERYTHING WAS SIMILAR, 

20 INCLUDING STRENGTH OF THE EVIDENCE? 

21 : THE WITNESS: THAT’S RIGHT. YOUR HONOR. 

22 THE COURT: MY QUESTION TQ YOU IS, DO YOU THINK YOU 

23 HAVE ADJUSTED IN "D" FOR THIS KIND OF VARIABLE WHICH MAY BE S0 

24 SUBSUMING OF ALL OTHER VARIABLES? HAS THAT BEEN GIVEN ADEQUATE 

29 ATTENTION IN “D" IN YOUR VIEW OF THE STATISTICAL TECHNIWUES       
  

  
  

 



  

  

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BALDUS ~ DIRECT 

INVOLVED? 

THE WITNESS: I BELIEVE, IT HAS, YOUR HONOR, IN THE 

SENSE WE HAVE A VARIETY OF VARIABLES THAT MEASURE EXACTLY THE 

KIND OF VARIABLE RELATING TO EVIDENCE THAT WERE INVOLVED IN THE 

WILLIAMS CASE. THAT IS, WHAT KIND OF SCIENTIFIC EVIDENCE DID 

THEY HAVE WITH THEIR WITNESSES. ALL THE FACTS THAT GO TO THE 

STRENGTH OF THE EVIDENCE, THOSE ARE ALL INCLUDED IN THE ANALYSIS 

THAT PRODUCED THE FIGURES IN DB-9%5, AND, AND WITH RESPECT TO THE 

WAY THE REGRESSION ANALYSIS WORKS AND IN THAT KIND OF CONTEXT. 

INDEED THESE DISPARITIES ARE DISPARITIES ACROSS ALL THE CASES IN 

CATEGORIES WHICH CONCEPTUALLY ARE EQUIVALENT TO BEING MATCHED ON 

ALL THESE BACKGROUND FACTORS. INCLUDING ALL THESE EVIDENTIARY 

FACTORS. 

THE COURT: ALL RIGHT. WELL, I HAVE YOUR TESTIMONY. 

WHAT ARE WE ON, 267 

MR. BOGER: THATS RIGHT. YOUR HONOR. 

THE COURT: ALL RIGHT. I WOULD NOTE FOR THE RECORD 

JUST AS A NOTE TO MYSELF, AND TO YOU ALL, I THINK I SAID ROMAN 

NUMERAL II LINE, AND 3D LINE ARE PROBABLY THOSE I WOULD BE, WHAT 

I WOULD BE MOST INTERESTED IN AND BECAUSE OF MANY CONCERNS, 

INCLUDING THE ONE I WAS JUST DISCUSSING WITH PROFESSOR BALDUS, 1 

AM TROUBLED BY THIS EXHIBIT, BUT I THINK IT IS SOPHISTICATED 

ENOUGH TO ALLOW IT IN AND THEN WE LL JUST HAVE TO LOOK AT THE 

WEIGHT OF IT IN THE CONTEXT OF WHAT FOLLOWS. 

IT’S A GOOD TIME FOR A LUNCH BREAK. 

  

  

 



  

  

  

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927 

BALDUS - DIRECT 

DO YOU OUT-OF-CITY LAWYERS HAVE TRAVEL PLANS WHICH 

WOULD, ARE YOU TRYING TO CATCH A PLANE TO GO HOME, AND WOULD YOU 

LIKE TO LEAVE AT 4:307 I DON’T WANT TO DO IT JUST TO KNOCK OFF 

EARLY BUT IF YOU’RE TRYING TO CATCH A PLANE AND TO KNOCK OFF AT 

4:30 WOULD HELP, I WOULD CONSIDER IT. 

MR. BOGER: I APPRECIATE IT. YOUR HONOR. WE HAD 

ANTICIPATED WE WOULD BE INTO NEXT WEEK AND WE ARE HERE FOR THE 

WEEKEND. 

THE COURT: ALL RIGHT. WELL PLAN ON RUNNING ON UP TO 

F100 OR 5:30 TONIGHT. 

| WELL BE IN RECESS UNTIL QUARTER OF TWO. 

(COURT RECESSED FOR LUNCH.) 

THE COURT: DO YOU HAVE A PREDICTION OF WHEN YOULL BE 

THROUGH WITH YOUR DIRECT CASE? 

MR. BOGER: DIRECT CASE OR PROFESSOR BALDUS, YOUR 

HONOR? 

THE COURT: DIRECT CASE. 

MR. BOGER: I THINK THAT PROFESSOR BALDUS- DIRECT THIS 

AFTERNOON WILL TAKE ANOTHER TWO, TWO AND A HALF HOURS, AT THE   
QUTSIDE. 

AND THEN I SUSPECT PROFESSOR WOODWORTH WILL BE HALF A 

DAY, TO THREE-QUARTERS QF A DAY. 

UNDER YOUR HONOR‘S SUGGESTION THAT PROFESSOR BERK BE A 

REBUTTAL WITNESS, WHICH WE HAVE CONCURRED IN, WE MIGHT HAVE ONE 

    
  

 



  
  

  

  

BALDUS - DIRECT 
-
 OTHER SHORT WITNESS IN ADDITION TO THE MCCLESKEY TESTIMONY 

< RELATING TO, TO THE INEFFECTIVE ASSISTANCE OF COUNSEL. S50 I 

3 | WOULD SUSPECT THAT WE WOULD BE GOING INTO TUESDAY. MAYBE EVEN 

4 INTO THE BEGINNING OF WEDNESDAY, IF THERES A SUBSTANTIAL 

| 3S CROSS-EXAMINATION OF PROFESSOR BALDUS OR PROFESSOR WOODWORTH. 

® & [THE COURT: I THINK I WOULD LIKE TO COMPARTMENTALIZE 

7 |THE TRIAL SO WE DON’T DO THE INEFFECTIVE ASSISTANCE OF COUNSEL 

8 ISSUE UNTIL WE“RE COMPLETELY -— 

? MR. BOGER: IT WILL BE INTO TUESDAY. 4:00, 4:30. I 

10 DON’T KNOW WHETHER MS. WESTMORELAND COULD FINISH HER CROSS TODAY 

11 EVEN IF WE GET WELL UNDERWAY. I REALLY HAVE NO IDEA. [I SUSPECT 

12 WE“D BE INTO MONDAY ON THE CROSS-EXAMINATION OF PROFESSOR 

13 BALDUS. 

14 I THINK DIRECT AND CROSS OF PROFESSOR WOODWORTH IS 

15 PROBABLY A DAY. AGAIN DEPENDING ON A ROUGH ESTIMATION OF CROSS. 

16 : THE COURT: OKAY. HOW LONG DO YOU THINK YQU-RE GOING 

17 TO BE? 

18 MS. WESTMORELAND: ON OUR CASE. YDUR HONOR, OR ON —-— 

w 19 THE COURT: YOU WANT TQ ESTIMATE AS TO HOW LONG YOU ARE 

20 GOING TO CROSS PROFESSOR BALDUS? 

21 MS. WESTMORELAND: DEFINITELY I WOULD NOT FINISH WITHIN 

22 AN HOUR THIS AFTRERNOON. THAT'S AR FAIR ESTIMATE, YOUR HONOR. 

23 AND PROBABLY. DEPENDING ON HOW FAR WE DO GET TODAY, I DONT 

24 ANTICIPATE THAT IT WOULD TAKE THE WHOLE DAY MONDAY. OTHER THAN 

23 THAT, I’M A LITTLE AT A LOSS AT THIS POINT TO DEFINE HOW LONG IT       
 



  

146 

    
  

  

P27 

BALDUS - DIRECT 

| WOULD TAKE. PERHAPS THREE-FOURTHS OF A DAY IS A ROUGH ESTIMATE. 

FOR THE PRESENTATION OF THE CASE, FOR THE PRESENTATION 

OF THE CASE.» I WOULD ANTICIPATE. NOT COUNTING THE 
| 

CROSS~-EXAMINATION, PROBABLY TWO TO THREE DAYS. 

  | THE COURT: ALL RIGHT. I’M GOING TO TAKE NEXT 

WEDNESDAY AFTERNOON OFF. I“VE GOT TO PRETRY A CASE THEN SO IT 

WILL BE READY FOR TRIAL IN SEPTEMBER. WE WON‘T RUN WEDNESDAY 

| AFTERNOON. 

ALL RIGHT. GO AHEAD. 

DAVID C. BALDUS, 

BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND 

TESTIFIED FURTHER AS FOLLOWS: 

DIRECT EXAMINATION (CONT-D) 

BY MR. BOGER: 

@. PROFESSOR BALDUS, -- 

MR. BOGER: =-- ACTUALLY THIS I3 DIRECTED TO THE COURT, 

IM AFRAID I MAY HAVE CONFUSED THE RECORD MORE THAN 1 CLARIFIED 

IT BY OFFERING A SUBSTITUTE DOCUMENT WHICH IS HARD TQ GET INTO 

THE DOCUMENT FOLDERS.   
YOUR HONOR HAD SAID THAT A FORTION OF THE, DB-96 WHICH 

WAS MOST PROBATIVE AND OF MOST INTEREST WAS THE PORTION ROMAN 

NUMERAL II WHICH I TAKE IT, YOUR HONOR, TO BE THE FORTION THAT 

DEALT WITH STATISTICALLY SIGNIFICANT "P" IS LESS THAN .10, 

NON-ARBITRARY FACTORS, THAT COLUMN. UNFORTUNATELY. ON OUR 

    
  

  
  

 



  

  

  

  

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BALDUS - DIRECT 
IY

 

(REVISED VERSION THAT GOT MISLETTERED AS ROMAN NUMERAL I-~C. SO 

2 THERE REALLY IS NO ROMAN NUMBERAL II ON THE SECOND VERSION. 

3 | THE COURT: I THINK I SUCCEEDED IN PUTTING THE BAD ONES 

4 BACK IN THE BOOK IN BOTH CASES. 

2 MR. BOGER: WELL, THE BAD ONE MAY HAVE BEEN THE GOOD 

ae & ONE, UPON SECOND THOUGHT. AS LONG AS THE RECORD IS CLEAR THAT 

7 IN THE REVISED DB-96 IT’S I-C, I BELIEVE. AND IN THE EARLIER 

8 VERSION WAS ROMAN NUMERAL II, -- 

4 THE COURT: OKAY. WELL. THATS, I THINK WE‘RE TALKING 

10 ABOUT THE SAME THING. 

11 | MR. BOGER: ALL RIGHT. 

12 BY MR. BOGER? 

13 @. PROFESSOR BALDUS, LET ME ASK YOU ONE QUESTION ABOUT THE I-C, 

14 REVISED VERSION, ROMAN NUMERAL II IN THE OTHER VERSION. 

15 THE JUDGE HAD ASKED YOU PRIOR TO THE LUNCH BREAK 

16 WHETHER RACE, EXCUSE ME, WHETHER STRENGTH OF EVIDENCE FACTORS 

17 WERE INCLUDED WITHIN THAT COLUMN. 

| 18 DO YOU HAVE AN ANSWER FOR THAT, TO THAT QUESTION NOW? 

Ww i . ih. YES. 

20 THE COURT: WE WERENT TALKING ABOUT THESE EXHIBITS 

2 WITH THAT CONCERN, WERE WE? 

22 MR. BOGER: MY IMPRESSION IS, YOUR HONOR. THAT YOU WERE 

23 INTERESTED IN WHETHER STRENGTH OF EVIDENCE WAS INVOLVED THERE. 

24 I MAY HAVE MISUNDERSTOOD. 

23 THE COURT: YES. ALL RIGHT. YES. OKAY.     
  

 



  
  

  

  

BALDUS ~ DIRECT 

1 | THE WITNESS: YES, YOUR HONOR ASKED ME ORIGINALLY ABOUT 

[ THE ANALYSIS REFLECTED IN 3D, AND I INDICATED WE HAD NO 

3 INDEPENDENT MEASURES ON THE STRENGTH OF THE EVIDENCE IN THE 

4 PROCEDURAL REFORM STUDY. 

HOWEVER, IN THE CHARGING AND SENTENCING STUDY WE HAVE A (4
 

6 SUBSTANTIAL VARIETY OF SUCH MEASURES, AND THE GROUP OF VARIABLES 

7 THAT WERE USED AS BACKGROUND CONTROLS AT WHAT IS NOW I-C AND 

a WHAT WAS FORMERLY ROMAN NUMERAL 11 ON DB-94, INCLUDED THREE SUCH 

7 MEASURES. 

10 THE ONE WAS A COUNT, A VARIABLE WHICH COUNTED THE 

11 NUMBER OF MAJOR INCRIMINATING EVIDENTIARY FACTORS IN THE CASE. 

12 AND ANOTHER ONE WAS WHETHER OR NOT THERE WAS AN I.D. WITNESS OF 

13 THE CO-PERPETRATOR AT OR NEAR THE SCENE OF THE CRIME. AND THEN 

14 ANOTHER ONE WHICH DID NOT MEASURE STRENGTH OF THE EVIDENCE 

15 DIRECTLY, BUT IS A PROXY FOR IT, AND THAT IS WHETHER OR NOT THE 

16 CO-PERPETRATOR RECEIVED A LESSER SENTENCE. THAT VARIABLE 

17 FIGURES IN A SERIES OF OUR ANALYSES AS AN AGGRAVATING FACTOR. 

13 AND WHAT I BELIEVE IT REPRESENTS IS THAT IN MOST OR A BIG 

w» 19 PROPORTION OF THOSE CASES, THE CO-PERPETRATOR PROVIDED EVIDENCE 

=0 AGAINST THE DEFENDANT. 

<1 THAT IS NOT A DIRECT MEASURE, THAT IS ONLY A FROXY FOR 

22 IT. BUT THE OTHER TWO ARE DIRECT MEASURES TAKEN SRAUARELY FROM 

23 THE FILES OF THE PAROLE BOARD WITH RESPECT TO WHAT THE IMPORTANT 

<4 EVIDENTIARY FACTORS WERE. 

25 SO THAT INDEED THE SUGGESTION THAT AS FOR THIS         
  

 



BALDUS ~ DIRECT { 
| 

| 

[DECISION THOSE EVIDENTIARY 
FACTORS ARE IMPORTANT 13 RECENTLY 

| BORNE OUT BY THE ANALYSIS THAT WE DID IN THIS PARTICULAR 
STAGE 

jo THE REPORT. 

THE COURT: ALL RIGHT. LET/S GO AHEAD. 

| MR. BOGER: FINE. 

BY MR. ROGER? 

12 PROFESSOR paLDUS, DID you CONDUCT ANY ANALYSIS OF THE 

DECISION BY THE JURY USING LOGISTIC ANALYSIS TO DETERMINE 

WHETHER THERE WERE RACE OF THE DEFENDANT DISPARITIES 
AS WELL? 

A. YES. WE DID. WE CONDUCTED AN ANALYSIS OF THE JURY DECISION 

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—
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MAKING WITH LOGISTIC REGRESSION 
PROCEDURES. 

(Ge LET ME DIRECT YOUR ATTENTION TO DB-97 MARKED FOR 

{ 

| IDENT IFICATION. can YOU IDENTIFY THAT DOCUMENT? 

a. ves.  UE-97 1% 6 TAGE 48 FROM OUR REPORT, AND IT REFLECTS 

he RESULTS OF SEVEN SUCH ANALYSES. 

o can YOU BRIEFLY TELL US WHAT THE RESULTS. OR ACTUALLY WHAT 

(ANALYSES YOu CONDUCTED, AND THEN WHAT THE RESULTS ARE? 

a. VES. PART 1 REFLECTS THE ANALYSIS FROM THE CHARGING AND 

| SENTENCING STUDY. AND PART 2 REFLECTS THE RESULTS FROM THE 

| PROCEDURAL REFORM STUDY. 

AND IT INDICATES 
THAT IN THE CHARGING AND SENTENCING 

  

STUDY THAT THERE ARE RACE OF ViCTIM EFFECTS cSTIMATED 
IN EACH 

| 

: 

OF THESE ANALYSES. 
HOWEVER: IN ONLY ONE OF THEM po THOSE 

Frrecys RISE TO A LEVEL OF STATISTICAL
 SIGNIFICANC

E BEYOND THE 

|.03 LEVEL. 

| 

| 

  

 
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BALDUS - DIRECT 
Pa
y IN OUR ANALYZES OF JURY DECISION MAKING, WE FOUND 

FREGUENTLY THAT WHEN WE ONLY INCLUDED A HANDFUL OF VARIABLES, 

RACE EFFECT IS NOT APPARENT: AND IT GENERALLY DOES NOT APPEAR 

UNTIL THERES A SIGNIFICANTLY LARGER GROUP OF BACKGROUND 

CONTROL VARIABLES. 

THE RACE OF VICTIM EFFECTS PRESENTED IN PART 2 OF THAT 

TABLE ARE DRAWN FROM THE PROCEDURAL REFORM STUDY, AND THOSE 

ANALYSES SHOW RACE OF VICTIM EFFECTS. BUT THEY ARE NOT AS STRONG 

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AS THE RACE OF VICTIM EFFECTS THAT WERE SHOWN IN THE LEAST 

po
h o SRUARES REGRESSION ANALYSES. 

11 WHEN ONE TURNS TO COLUMNS D AND E OF DB-97, HERE AGAIN 

12 YOU CAN SEE A PATTERN IN WHICH THE CO-EFFICIENTS ARE UNSTABLE. 

13 AND THEY TEND, IN FACT, OVERALL TO SUPPORT THE PROPOSITION THAT 

14 CONTROLLING FOR ALL THE BACKGROUND FACTORS AND THE RACE OF THE 

15 VICTIM, THAT BLACK OFFENDERS ARE AT AN ADVANTAGE WHEN ONE VIEWS 

16 THE STATE AS A WHOLE AT THE PENALTY TRIAL PHASE, ALTHOUGH NONE 

37 OF THESE CO-EFFICIENTS REACHES A SUBSTANTIAL LEVEL OF 

13 STATISTICAL SIGNIFICANCE. 

A 12? A. LET ME ASK YOU, PROFESSOR BALDUS, ONCE AGAIN, DOES, DO THESE 

20 CO-EFFICIENTS REFLECT THE RESULTS OF ANY DISCRIMINATION THAT 

21 MIGHT HAVE OCCURRED OR ANY DISPARITIES THAT MIGHT HAVE RESULTED 

22 IN EARLIER PHASES IN THE SYSTEM? 

23 A. NO. THEY DO NOT TAKE INTO ACCOUNT ANY EFFECTS OTHER THAN 

<4 THOSE PRODUCED AT THE PENALTY TRIAL ITSELF. THEY INDICATE THAT 

23 THE. WITH RESPECT TO THE RACE OF THE DEFENDANT. THAT PLAINLY THE       
  

 



  

  

— — — — —— | — ——— ——— ——" ——p— — —   

  

934 
BALDUS - DIRECT 

  
OVERALL EFFECTS THAT WE-VE SEEN IN CUR COMPARISONS OF DEATH 

SENTENCING RATES OF OFFENDERS INDICTED FOR MURDER ARE NOT THE 

PRODUCT OF JURY SENTENCING DECISIONS WITH RESPECT TO THE RACE OF 

THE DEFENDANT. 

THEY ALS0 SUGGEST THAT WITH RESPECT TO THE RACE OF THE 

VICTIM THAT THE EFFECT THERE IS ONLY PARTIALLY THE PRODUCT OF A 

JURY DEATH SENTENCING DECISION AT PENALTY TRIALS. 

@. NOW WITH RESPECT TO THE DIFFERENT ANALYSES YOU RAN, USING 

THIS LOGISTIC METHOD. ARE THE FIVE LEGITIMATE FACTORS IN 1A THE 

SAME THAT YOU TESTIFIED TO PREVIOUSLY? 

A. YES, THEY ARE.   
2. AND THE NINE LEGITIMATE FACTORS, YOU/VE PREVIOUSLY GIVEN 

INDICATION ABOUT NINE AT ONE POINT. IS IT THE SAME GROUP THAT'S 

EMPLOYED HERE? 

A. YES. THOSE ARE RESPECTIVELY THE FIVE LEGITIMATE FACTORS 

THAT ARE IN TABLE 22 OF THE, OUR REPORT, AND THE NINE FACTORS 

ARE IN TABLE 222A OF THAT REPCRT. u 

@. NOW, IN IC YOU MENTIONED 146 STATISTICALLY SIGNIFICANT 

NON-ARBITRARY FACTORS. 

MY RECOLLECTION IS NOT CLEAR ON WHETHER YOUVE ACTUALLY 

REFERRED TO THIS GROUP PRIOR TO NOW IN YOUR TESTIMONY. 

A. NO, I HAVE NOT. THOSE ARE IN SCHEDULE ¥?., OF THE TECHNICAL 

APFENDIX OF OUR REPORT. 

@. THAT TECHNICAL APPENDIX HAS BEEN MARKED AS DB-956A FOR 

IDENTIFICATION. COULD YOU DIRECT US TO WHAT THOSE 16 ARE. USING   

    
  

  

 



  

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BALDUS -~ DIRECT 

THAT APPENDIX? 

A. YES. WOULD YOU LIKE ME TO READ WHAT THOSE FACTORS ARE. 

COUNSEL? 

lo. IF YOU WOULD, QUICKLY? 

A. YES. THE FIRST ONE -- FIRST, I“M READING FROM SCHEDULE ¢ OF 

THE TECHNICAL APPENDIX. 

THE COURT: I DON’T HAVE THAT. 

MR. BOGER: I THOUGHT WE PASSED A COPY UP TU YOUR 

HONOR. I THINK THE CLERK HAS A COPY. 

THE COURT: I HAVE 8 AND I HAVE 10 -- OKAY, IT’S JUST 

OUT OF ORDER. 

MR. BOGER: SORRY FOR THAT, YOUR HONOR.   
THE WITNESS: MAY I PROCEED? 

BY MR. BOGER: 

@. OF COURSE. 

A. THE FACTORS HERE THAT ARE IMPORTANT IN PREDICTING JURY DEATH 

SENTENCING DECISIONS THAT WERE PRODUCED WITH THIS ANALYSIS ARE 

THE FOLLOWING. 

WHETHER OR NOT THE DEFENDANT WAS THE TRIGGER MAN, 

WHETHER OR NOT A B2 STATUTORY ACGRAVATING 

CONTEMPORANEOUS OFFENSE WAS PRESENT. 

WHETHER THE DEFENDANT HAD A Bl PRIOR RECORD. 

WHETHER OR NOT THE VICTIM WAS WITH OR WITHOUT CLOTHING. 

MULTIPLE HEAD SHOTS. 

WHETHER THE DEFENDANT HAD BEEN RELEASED FROM PRISON   {   
  

  

 



  

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36 

BALDUS - DIRECT 

WITHIN THE PRECEDING YEAR. 

WHETHER DEFENDANT CLAIMED COERCION. 

| WHETHER THERE WAS A REVENGE MOTIVE. 

WHETHER THE DEFENDANT HAD A HISTORY OF DRUG ABUSE. 

WHETHER THE DEFENDANT HAD A MITIGATING MOTIVE. 

WHETHER THERE WAS AN INSURANCE MOTIVE. 

THE NUMBER OF MAJOR AGGRAVATING. NON-STATUTORY 

| AGGRAVATING FACTORS IN THE CASE. 

DEFENDANT “3S AGE AT THE TIME OF FIRST FELONY ARREST. 

DEFENDANT INVOKED THE SANITY DEFENSE OR NOT. 

DEFENDANT PANICKED IN THE COURSE OF A BURGLARY. 

AND THE NUMBER OF MAJOR AND INCRIMINATING EVIDENTIARY 

FACTORS IN THE CASE. 

@. HOW WERE THESE 14 FACTORS DERIVED? 

‘A. THESE WERE DERIVED IN THE SAME MANNER THAT I REFERRED TO 

EARLIER WITH RESPECT TO THE ABBREVIATED LIST THAT WAS USED IN 

THE ANALYSIS OF THE PROSECUTORIAL DECISIONS. 

WE IDENTIFIED FACTORS THAT WERE STATISTICALLY 

SIGNIFICANT AT THE .10 LEVEL IN EXPLAINING THE JURY SENTENCING 

DECISIONS. 

WE FURTHER LIMITER THE GROUP OF VARIABLES TO THOSE THAT 

WERE LEGITIMATE AGGRAVATING AND MITIGATING FACTORS, AND FURTHER 

TO AGGRAVATING FACTORS THAT HAD AN AGGRAVATING EFFECT IN THE 

ANALYSIS, AND TO MITIGATING FACTORS THAT HAD A MITIGATING EFFECT 

IN THE ANALYSIS.       
  

 



  

  

  

  

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BALDUS - DIRECT 

'Q. FINALLY. LET ME ASK YOU ABOUT PART 2; THE FIVE AND NINE 

LEGITIMATE VARIABLES, RESPECTIVELY. IN "A" AND "B", ARE THOSE 

THE FIVE AND NINE TO WHICH WE PREVIOUSLY REFERRED? 

A. I AM NOT SURE THAT THEY ARE THE. THE FIVE VARIABLES REFERRED 

THERETO ARE ON SCHEDULE 10 OF THE TECHNICAL APPENDIX: THE 

NINE-VARIABLE LIST IS FOUND IN SCHEDULE 11 OF THE TECHNICAL 

APPENDIX: AND THE ELEVEN STATUTORIALLY SIGNIFICANT NON-ARBITRARY 

FACTORS THAT I REFERRED TO IN THE PART 2 HERE, WHICH RELATES TO 

THE PROCEDURAL REFORM STUDY, ARE FOUND IN SCHEDULE 3 OF THE 

TECHNICAL APPENDIX. 

MR. BOGER: YOUR HONOR, FOR THE CLARITY OF THE RECORD 

WE CAN EITHER HAVE PROFESSOR BALDUS GO THROUGH THOSE OR WE CAN 

ADMIT GENERALLY THE TECHNICAL APPENDIX, WHICH ITSELF. I THINK 

ADDS NO MORE EVIDENCE. BUT SIMPLY REFLECTS WHAT HE“S RELIED UPON 

IN 97 AND EARLIER IN 96. 

THE COURT: ALL RIGHT, LET”S DO THAT. DO YOU HAVE ANY 

OBJECTION, MS. WESTMORELAND? 

MS. WESTMORELAND: NOT FOR THAT PURPOSE. YOUR HONOR. 

THE COURT: ALL RIGHT. 

MR. BOGER: YOUR HONOR, I MOVE THE ADMISSION OF DB-24A 

INTO EVIDENCE AND MOVE AT THE SAME TIME THE ADMISSION OF DB-97 

INTO EVIDENCE. 

MS. WESTMORELAND: YOUR HONOR, IN ADDITION TO THE SAME 

OBJECTIONS: I WOULD NOTE THAT I THINK THE SAME CONCERNS ARE 

PRESENT IN THIS TABLE, AS IN THE PREVIOUS TABLE, WHETHER THESE 

  

  
    

  
  

 



  

  

  

  

a3 

BALDUS - DIRECT 

1 PARTICULAR FACTORS THAT ARE BEING ACCOUNTED FOR ACTUALLY HAVE 

  < ANY RELEVANCE TO THE ISSUE THAT IS BEING PRESENTED IN THE CASE. 

3 FOR THE MERE CONSIDERATION OF FIVE FACTORS OR NINE FACTORS OR 

SIXTEEN FACTORS 1S SUFFICIENT TO SHOW, MAKE A STATISTICAL 

SHOWING NECESSARY. : 

MR. BOGER: YOUR HONOR, I THINK PROFESSOR BALDUS’ 

TESTIMONY HAS BEEN HES EMPLOYED A NUMBER OF DIFFERENT METHODS, 

AS YOU KNOW, TO TRY TO SEE WHETHER THE RACIAL FACTORS CAN BE 

3 
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ACCOUNTED FOR AND THE EXTENT TO WHICH THEY CAN BE, HES NOT 

10 RELIED ON ANY ONE METHOD AND INDEED HIS WHOLE APPROACH HAS BEEN 

11 0 SET AS MANY METHODS AS HE COULD BEFORE THE COURT. AND THESE 

i2 ARE SIMPLY OTHER METHODS THAT HE“S USED AND ON WHICH HE’S RELIED 

13 IN REACHING HIS FINAL CONCLUSIONS. I DO THINK THEY'RE QUITE 

14 RELEVANT, ALTHOUGH PERHAPS NONE OF THEM IN ITSELF IS SUFFICIENT. 

13 | THE COURT: I WILL ALLOW IT, NOTING THAT I, AT THIS 

146 MOMENT. HAVE LESS CONFIDENCE IN THIS THAN I DO IN SOME OF THE 

17 OTHERS I“VE SEEN. NO USE GOING INTO THAT. 

13 S0 97 WILL BE ADMITTED. 

w 19 MR. BOGER: THANK YOU, YOUR HONOR. 

20 BY MR. BOGER: 

<1 a. PROFESSOR BALDUS,. DID YOU CONDUCT ANY ANALYSES THAT LOOKED 

22 AT THE COMBINED EFFECTS OF BOTH THE PROSECUTORIAL DECISION TO 

23 SEEK A DEATH SENTENCE AND THE JURY DECISION ON WHETHER TO IMPOSE 

24 A LIFE OR DEATH SENTENCE?       
    

 



  

    

  

  

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939 
BALDUS —- DIRECT 

a. LET ME DIRECT YOUR ATTENTION TO WHAT S BEEN MARKED AS DB-%3 

FOR IDENTIFICATION. CAN YOU IDENTIFY THAT DOCUMENT? 

A. YES. DB-98 IS TABLE 48A FROM OUR REPORT. AND IT PRESENTS 

|THE, THE RESULTS OF A SERIES OF LEAST SQUARES REGRESSION 

ANALYSES AND LOGISTIC REGRESSION ANALYSES. AND THIS ANALYSIS 

EMPLOYS DATA FROM THE PROCEDURAL REFORM STUDY. AND IT FOCUSES 

ON THE COMBINED EFFECTS OF THE DECISION TO ADVANCE THE CASE TO A 

PENALTY TRIAL, AND THE JURY SENTENCING DECISION. 

SPECIFICALLY, rr ADDRESSES THE RUESTION, AMONG THE 

POPULATION OF OFFENDERS CONVICTED OF MURDER AT TRIAL, IS THERE A 

DIFFERENCE IN THE RATES AT WHICH OFFENDERS WERE WHITE OR BLACK 

VICTIMS ARE SENTENCED TO DEATH, AFTER ADJUSTMENT FOR BACKGROUND 

FACTORS. 

AND COMMENCING WITH ROW 1. WE CAN SEE THE EFFECTS OF 

CONTROLLING FOR A SMALL NUMBER OF CONCEPTUALLY IMPORTANT 

BACKGROUND FACTORS. WE SEE THAT IN COLUMN Bs, THE. THERE IS A 

NINE PERCENTAGE POINT DIFFERENCE IN THOSE RATES AT WHICH THE TWO 

GROUPS RECEIVE DEATH SENTENCE, WITH WHITE VICTIM CASES RECEIVING 

AT MORE ELEVATED DEATH SENTENCING RATE. 

THE NEXT COLUMN, LABELED "DEATH ODDS MULTIPLIER" 

REFLECTS THE NUMBER OF TIMES ONE-S ODDS ARE INCREASED. ARE 

ESTIMATED TO INCREASE IN THIS ANALYSIS IF ONE’S VICTIM IS WHITE. 
| 
| 

AND THEN THE FINAL COLUMN PRESENTS THE LOGISTIC 

REGRESSION CO-EFFICIENT FROM WHICH THAT WAS CALCULATED. 

THE SUCCEEDING ROWS HERE LIST AN EVER INCREASING NUMBER     
  

  

 



  

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$40 
BALDUS — DIRECT 

OF STATUTDRY AGGRAVATING, MITIGATING, NON-STATUTORY AGGRAVATING 

  FACTORS, IN EVER INCREASING NUMBER, AND ONE CAN SEE THAT AS ONE 

Fre DOWN THE TABLE, THAT THE OVERALL DISPARITIES PERSIST 

REGARDLESS OF THE BACKGROUND FACTORS THAT ARE CONTROLLED FOR 

SIMULTANEOUSLY IN THE STATISTICAL ANALYSIS. 

AGAIN, THESE ANALYSES PRODUCED FROM THE PROCEDURAL 

REFORM STUDY SHOW THAT WHEN YOU COMBINE THE IMPACT OF THE TWO 

FACTORS, TWO DECISION POINTS, THAT THERE IS A STRONG AND 

PERSISTENT RACE OF VICTIM EFFECT. 

Gi. AND THAT DOES NOT TAKE ANY ACCOUNT OR DOES IT, PROFESSOR 

BALDUS, OF ANY EFFECTS, THE DISPARITIES THAT MAY HAVE OCCURRED 

EARLIER IN THE SYSTEM? 

A. NO, IT DOES NOT. THESE ARE JUST THE EFFECTS ASSOCIATED WITH 

THE TWO DECISION POINTS THAT I JUST REFERRED TO, THE DECISION TO 

ADVANCE THE CASE TO PENALTY TRIAL AND THE DEATH SENTENCING 

DECISION. 

MR. BOGER: YOUR HONOR. I MOVE THE ADMISSION OF DB-98 

INTO EVIDENCE. 

MS. WESTMORELAND: SAME OBJECTIONS AS PREVIOUSLY NOTED. 

YOUR HONOR. | 

THE COURT: ALL RIGHT, ILL RECEIVE IT. 

MR. BOGER: THANK YOU, YQUR HONOR. 

BY MR. BOGER: 

QR. PROFESSOR BALDUS, YOU’VE INDICATED THROUGHOUT YOUR TESTIMONY 

NOW, THAT RACIAL EFFECTS, RACE OF THE VICTIM, RACE OF THE         
  

 



    

  

  

241 
BALDUS — DIRECT 

1 |DEFENDANT, HAVE AN ACTUAL IMPACT ON GEORGIA‘S CHARGING AND 

2 SENTENCING SYSTEM. 

3 ARE THERE ANY MEANS THAT YDU KNOW OF WHEREBY TO 

4 ESTIMATE THE LIKELY SENTENCING OUTCOMES IF RACIAL FACTORS DID 

= NOT PLAY ANY ROLE IN THE GEORGIA SYSTEM? 

1) A. ONE CAN NEVER KNOW FOR SURE, OF COURSE. WE MADE AN ATTEMPT 

7 TO ESTIMATE THE RESULTS THAT ONE WOULD LIKELY SEE IF THE 

a EXERCISE OF DISCRETION IN THE SYSTEM WERE REDUCED. 

? @. HOW DID YOU GO ABOUT THAT ESTIMATION? 

Q A. WE DID IT IN THIS WAY. WE HYPOTHESIZED THE SYSTEM IN WHICH 

11 ALL DEFENDANTS CONVICTED OF MURDER WOULD HAVE THEIR CASES 

12 AUTOMATICALLY ADVANCED TO A PENALTY TRIAL AND THE JURY 

13 SENTENCING THEM ON A LIFE OR DEATH DECISION, WOULD SENTENCE THEM 

14 AT THE AVERAGE RATE WHICH JURIES CURRENTLY SENTENCE OFFENDERS 

15 WHILE CONTROLLING FOR THE VARYING AGGRAVATION LEVELS OF THE 

15 CASES THAT WERE ADVANCED TO THIS HYPOTHETICAL PENALTY TRIAL. 

37 NOW THIS WAS DONE SPECIFICALLY BY TAKING THE CASES IN 

13 WHICH A MURDER CONVICTION HAD BEEN OBTAINED AND DETERMINING HOW 

» 1? LIKELY IT WOULD BE THAT A JURY. FACED WITH THE FACTS OF THAT 

20 CASE, WOULD IMPOSE A DEATH SENTENCE IN THAT CASE. 

21 SPECIFICALLY, =-— 

22 R. EXCUSE ME. HOW DID YOU MAKE THAT -— 

232 A. WE MADE THAT DETERMINATION BY EXAMINING THE RESULTS OF THE 

24 REGRESSION ANALYSIS WHICH ARE INCLUDED IN SCHEDULE 2? OF THE 

2% TECHNICAL APPENDIX.       
 



  

  

——— ——— —— ——_ —— ————— —— — ——  —— » : Se 
  

  

942 
BALDUS - DIRECT 

THOSE WERE THE FACTORS THAT BEST EXPLAINED THE JURY'S 

SENTENCING DECISION, THE LEGITIMATE FACTORS BEST EXPLAINING THE 

| JURY DEATH SENTENCING DECISION. 

AND ON THE BASIS OF THOSE FACTORS, AND THE 

CO-EFFICIENTS THAT WERE ESTIMATED FOR THOSE VARIABLES. WE WERE 

ABLE TO EXAMINE EACH OF THESE OFFENDERS IN THE SYSTEM THAT WERE 

SENTENCED TO,» CORRECTION. WHO WERE CONVICTED OF MURDER. EITHER 

BY PLEA OR AT TRIAL, AND DETERMINE HOW SERIOUS THOSE CASES WOULD 

BE CONSIDERED IN THE EYES OF A JURY, THE EYES OF THE AVERAGE 

JURY IN GEDRGIA, IF YOU WILL, AS REFLECTED BY THIS REGRESSION 

ANALYSIS WHICH IS SUGGESTED IN SCHEDULE 9, SUGGESTED BECAUSE I 

ONLY HAVE LISTED THERE THE VARIABLES THAT WERE INCLUDED IN THE 

MODEL. 

S50 THIS HAD THE EFFECT OF PRODUCING A BREAKDOWN OF ALL 

OF THE OFFENDERS CONVICTED OF MURDER INTO VARIOUS SUB-GROUPS 

WHICH INCREASED IN THEIR LEVELS OF AGGRAVATION AS MEASURED BY 

THIS ANALYSIS. 

MOREOVER. WE KNEW WHAT THE ACTUAL JURY DEATH SENTENCING 

RATE WAS AMONG EACH OF THOSE SUB-GROUFS OF CASES BY VIRTUE OF 

WHAT THE JURIES HAD ACTUALLY DONE IN THE 253 CASES WHERE THEY 

HAD PASSED OM, PASSED ON A LIFE OR DEATH DECISION. 

WE WERE THEN ABLE TO ESTIMATE WHAT THAT DEATH 

SENTENCING RATE WAS AMONG THOSE ACTUAL CASES AND THEN WE APPLIED 

THAT DEATH SENTENCING RATE TO THE HYPOTHETICAL POPULATION OF 

CASES THAT WOULD HAVE COME BEFORE A DEATH SENTENCING JURY IN THE         
  

   



  

  

  
  

  

  

  

BALDUS - DIRECT 

ABSENCE OF INTERVENTION BY THE PROSECUTOR WHICH WOULD HAVE 

REDUCED THE NUMBER OF CASES COMING BEFORE THE PENALTY TRIAL 

JURIES. 

‘Qn. LET ME ASK YOU TO TURN TO DB-99 MARKED FOR IDENTIFICATION. 

CAN YOU IDENTIFY THAT DOCUMENT? 

A. YES. DB-99 IS TABLE 60 FROM OUR REPORT. AND IT SHOWS THE 

RESULTS OF THIS ANALYSIS. THE FIRST ~—— 

R. WHAT DOES COLUMN B REPRESENT? 

A. COLUMN B REPRESENTS THE NUMBER OF DEATH SENTENCES THAT WOULD 

OCCUR. WE ESTIMATE WOULD OCCUR UNDER THIS HYPOTHETICAL DEATH 

SENTENCING SYSTEM, AND IT ALSO INDICATES THE DISTRIBUTION OF 

THOSE DEATH SENTENCES ACCORDING TO THE DEFENDANT-VICTIM RACIAL 

COMBINATION. 

THE FIRST THING THAT WAS CLEAR FROM THIS HYPOTHETICAL 

ANALYSIS WAS THAT IT STRONGLY SUGGESTED THAT IF ALL OF THE CASES 

THAT RESULTED IN MURDER CONVICTIONS WERE TAKEN BEFORE A DEATH 

SENTENCING JURY, THAT THE NUMBER OF DEATH SENTENCES IMPOSED 

WOULD DRAMATICALLY INCREASE. AS ONE CAN SEE BY EXAMINING THE 

NUMERATOR OF THE FRACTIONS LISTED IN COLUMN B, THAT ESTIMATED 

NUMBER OF DEATH SENTENCES WAS 301. 

@. EXCUSE ME, PROFESSOR BALDUS. YOU SAID NUMERATORY 

A. PARDON ME. I MEAN DENOMINATOR. PARDON ME. THAT THE 

DENOMINATOR WOULD BE 201. 

AND WE CAN SEE THAT IN THIS HYPOTHETICAL SYSTEM. THAT 

72 OF THOSE 301 DEATH SENTENCES WOULD HAVE BEEN IMPOSED IN CASES     
  

    
  

 



  

  

  

944 
BALIWS ~ DIRECT 

1 "IN WHICH THE DEFENDANT WAS BLACK AND THE VICTIM WAS WHITE. 

  
2 SIMILARLY, WE OBSERVE IN THIS HYPOTHETICAL SET OF 

| 

3 RESULTS, 128 DEATH CASES AMONG CASES WHERE —— DEATH SENTENCES. 

4 RATHER, AMONG CASES WHERE THE DEFENDANT WAS WHITE, AS WAS THE 

VICTIM. (4
 

AND ONE CAN SEE BY EXAMINING ROWS 1A THROUGH -D THE 

DISTRIBUTION OF DEATH SENTENCES BY THE DEFENDANT-VICTIM RACIAL 

COMBINATION IN THE HYPOTHETICAL SYSTEM. 

9 
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MOVING DOWN TO PART 2, WE PRESENT THE DISTRIBUTION BY 

10 RACE OF VICTIM IN THE HYPOTHETICAL SYSTEM. AND THEN FINALLY IN 

11 PART 3, THE DISTRIBUTION IS PRESENTED ACCORDING TO THE RACE OF 

12 THE DEFENDANT. 

13 NOW, TO BE ABLE TO PRODUCE SOME ESTIMATE OF THE IMPACT 

14 THAT THE EXERCISE OF DISCRETION THAT THESE TWO POINTS MIGHT BE 

13 HAVING, WE COMPARED THESE HYPOTHETICAL RESULTS WITH THE ACTUAL 

14 RESULTS THAT OBTAINED IM THE SYSTEM. AND THOSE ARE PRESENTED IN 

17 COLUMN C. 

18 AND THERE WE SEE THE RACIAL DISTRIBUTION WITHIN OUR 

w 19 FOUR PRINCIPAL CATEGORIES OF THE DEATH SENTENCES ACTUALLY 

20 IMPOSED IN OUR SAMPLE. 

21 WE THEN COMPARED THOSE TWD, AND THOSE RESULTS ARE 

22 PRESENTED IN COLUMN D. 

23 AND COLUMN D INDICATES THAT THE NUMBER OF DEATH 

24 SENTENCES IMPOSED IN THE CATEGORY OF BLACK DEFENDANT-WHITE 

23 VICTIM WOULD DROP TD A POINT THAT THE PROFORTION OF ALL DEATH       
 



  

  

  

  

BALDUS ~ DIRECT 

1 | SENTENCE CASES WITH A BLACK DEFENDANT AND WHITE VICTIM WOULD 

DROP FROM 24 PERCENT, PARDON ME, WOULD DROP FROM 3% PERCENT TO 

24 PERCENT IN THE HYPOTHETICAL SYSTEM. REPRESENTING A DECREASE 

OF FIFTEEN PERCENTAGE POINTS IN THE REPRESENTATION OF THAT CLASS 

OF CASE. 

Q. IS IT YOUR TESTIMONY, PROFESSOR BALDUS, THAT THE NUMBER OF 

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BLACK DEFENDANT-WHITE VICTIM CASES RECEIVING A DEATH SENTENCE 

WOULD DROP OR THE PROPORTIONS OR BOTH? 

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A. NO, IT WAS THE. IT’S THE PROPORTION THAT WOULD DROP. THE 

10 NUMBER. ACTUALLY. WOULD SLIGHTLY INCREASE. AS DO ALL, AS DO 

13 DEATH SENTENCES IN EACH CATEGORY OF CASE. IT“S THE PROPORTION 

0% THAT WOULD DROP AMONG ALL OF THOSE WHO RECEIVED DEATH SENTENCES. 

13 WE ALSO SEE A SLIGHT DROP IN THE PROPORTION OF DEATH 

ia SENTENCES THAT WOULD GO TO DEFENDANTS WITH WHITE DEFENDANTS. AND 

135 WHITE VICTIMS. BUT AS ROW IC, COLUMN D SUGGESTS, THERE WOULD BE 

16 A, AN INCREASE IN THE REPRESENTATION OF BLACK DEFENDANTS WITH 

17 BLACK VICTIMS IN THIS HYPOTHETICAL SYSTEM. 

ig DROPPING DOWN TO ROW 2, WE CAN SEE THAT WHEN YOU LOOK 

w 19 AT IT STRICTLY IN TERMS OF RACE OF THE VICTIM, THAT THERE WOULD 

20 EE AN 18 PERCENTAGE POINT DROF IN THE REPRESENTATION OF WHITE 

21 VICTIMS IN THIS HYPOTHETICAL DEATH ROW, AND A TWENTY FERCENT -- 

22 TWENTY PERCENTAGE POINT INCREASE IN THE PROPORTION OF BLACK 

<3 VICTIM CASES. 

24 FINALLY, THE PROPORTION OF BLACK DEFENDANTS IN THE 

23 ENTIRE POPULATION WOULD CHANGE VERY LITTLE, AS IS SUGGESTED BY       
 



  

  

        

  

  

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246 

BALDUS - DIRECT 

ROW 2A AND —-B, ONE PERCENTAGE POINT CHANGE. 

Gl. WHAT CONCLUSIONS IF ANY, DO YOU DRAW FROM THIS KIND OF 

| TABLE? 

A. THIS GIVES ONE A SENSE OF THE PRACTICAL CONSEQUENCES. 

PRACTICAL IMPACT THAT THE RACIAL FACTORS APPEAR TO BE HAVING IN 

THE SYSTEM IN THE SENSE THAT THE EXERCISE OF THE DISCRETION BY 

PROSECUTORS AND EXERCISE OF DISCRETION BY JURIES PRODUCE AN 

DVERREPRESENTATION OF WHITE VICTIM CASES ON DEATH ROW. AND IN 

PARTICULAR, AN OVERREPRESENTATION OF CASES INVOLVING BLACK 

DEFENDANTS AND WHITE VICTIMS. THAT'S WHAT IS SUGGESTED BY THIS 

ANALYSIS. 

R. HAVE YOU THOUGHT OF ANY OTHER WAY ONE MIGHT HYPOTHESIZE THE 

EFFECTS OF THE ABSENCE OF RACIAL FACTORS ON SENTENCING OUTCOMES 

IN GEORGIA? 

1A. YES. 

@. CAN YOU TELL US WHAT THAT ALTERNATIVE HYPOTHETICAL SYSTEM 

WOULD DO? 

A. YES. 

THE COURT: LET. ARE YOU GOING TO ANOTHER TABLE? 

MR. BOGER: YES, YOUR HONOR. 

THE WITNES3: YES. SIR. 

THE COURT: IT IS, IM SURE, TOQ FACILE TO SAY THAT, 

THIS, BUT IT MAY BE THE INVERSE OF WHAT YOURE SAYING. 

HAVING TAKEN RACE, RACIAL CONSIDERATIONS OUT OF THE 

SYSTEM, WE WOULD THEN GIVE THE DEATH PENALTY TO SUBSTANTIALLY     
  

 



      

  

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47 

BALDUS - DIRECT 

MORE PEOPLE, AND BLACK PEOPLE, KILLERS OF KIND OF PERSON, WHICH 

IN A WAY SUGGESTS THAT RACE I5 SOMEHOW RESTRAINING THE SYSTEM 

FROM IMPOSING THE DEATH PENALTY. 

MR. BOGER: THAT-S WHY 1 WAS TRYING TO HURRY ON TO 

ANOTHER TABLE AND ANDTHER HYPOTHESIS. BECAUSE THERE ARE 

DIFFERENT WAYS IN WHICH ONE CAN LOOK AT WHAT THE RESULTS WOULD 

BE. AND I HAD PROPOSED BEFORE WE OFFER EITHER TABLE TO GET TO 

THE OTHER ONE, TO SEE WHAT THE OTHER HYPOTHESIS IS, BUT ILL BE 

GLAD TO HAVE -—- 

THE COURT: 00 AHEAD AND LET’S SEE WHAT THE OTHER ONE 

IS. 

MR. BOGER: ALL RIGHT. 

BY MR. BOGER: 

Qt. YOU INDICATED, PROFESSOR BALDUS, THAT YOU HAD ANOTHER 

HYPOTHETICAL SYSTEM THAT HAD NO RACIAL FACTORS WITH IMPACT. 

CAN YOU TELL US WHAT THAT SYSTEM WOULD DO? 

A. YES. WHAT WE HYPOTHESIZED IN THIS SYSTEM, IN DB-100 IS A 

SYSTEM IN WHICH THE RATE OF DEATH SENTENCING WOULD NOT INCREASE. 

WHAT PRODUCED THAT SUBSTANTIAL INCREASE IN THE NUMBER OF DEATH 

SENTENCES THAT WE SAW IN THE PREVIOUS TABLE WAS THE RESTRAINT 

IMPOSED UPON THE EXERCISE OF FROSECUTORIAL DISCRETION, 

PROSECUTORS SCREEN TWO-THIRDS OF THE MURDER CONVICTIONS QUT OF 

THE SYSTEM, AND THAT IS WHY WE HAVE SO MANY DEATH SENTENCES 

UNDER THE HYPOTHETICAL SYSTEM. 

BUT WE THOUGHT THAT YOU COULD MAKE A SHARPER AND 

  

  

  

    
  

 



      

  

  

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“43 

BALDUS - DIRECT 

TIGHTER COMPARISON IF I HYPOTHESIZED THE SYSTEM THAT PRODUCED 

THE SAME NUMBER OF DEATH SENTENCES AS 1S PRODUCED IN THE CURRENT 

SYSTEM. AND THEN ESTIMATE WHAT THE DISTRIBUTION OF THOSE 

OFFENDERS WOULD BE BY DEFENDANT-VICTIM RACIAL COMBINATION. AND 

THIS WAS DONE VERY SIMPLY BY TAKING THE PRESENT NUMBER OF CASES 

AND REALLOCATING THEM ACCORDING TO THE DISTRIBUTION THAT WAS 

ESTIMATED IN DB-99 AS A RESULT OF OUR HYPOTHETICAL SYSTEM. 

AND WHAT WE SEE IS IN DB-100 THE DISTRIBUTION THAT WE 

WOULD EXPECT TO SEE IF THERE WERE 128 DEATH SENTENCES IMPOSED IN 

THE HYPOTHETICAL SYSTEM AS CONTRASTED TO THE ACTUAL 128 CASES 

THAT WERE IMPOSED. "B" PRESENTS THE HYPOTHETICAL RESULTS. MC 

SHOWS THE ACTUAL RESULTS IN TERMS OF THE NUMBERS OF PEOPLE IN 

EACH ONE OF THESE CATEGORIES. AND WHAT WE SEE IS. BY 

COMPARING "B", COLUMNS B AND C., THE DIFFERENCE WHICH IS 

REPRESENTED IN COLUMN I,» WE SEE THAT THERE WOULD BE AN ESTIMATED 

NINETEEN FEWER PEOPLE ON DEATH ROW WHO WERE BLACK AND HAD A 

WHITE VICTIM, FOUR FEWER PEOPLE WHO WERE WHITE AND HAD A WHITE 

VICTIM, BUT AN INCREASE OF TWENTY BLACK OFFENDERS WHO HAD A 

BLACK VICTIM, AND AN INCREASE OF 3 PEOPLE WHO HAD. AN INCREASE 

OF 3 WHITE DEFENDANTS WHO HAD A BLACK VICTIM. SO THAT WHEN YOU 

AGGREGATE THOSE DATA, IT SHOWS THAT THERE WOULD BE A SUBSTANTIAL 

DROP IN TERMS OF THE NUMBERS, THAT IS, 23 PEOPLE, IN TERMS OF 

THE NUMBERS OF OFFENDERS WHO HAD WHITE VICTIMS. 

FINALLY, WHEN ONE LOOKS AT ROW 3, YOU SEE THAT THERE 

WOULD BE A CHANGE OF ONLY ONE IN TERMS OF THE NUMBERS OF BLACK     
  

 



  

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42 

BALIUS - DIRECT 

| DEFENDANTS ON DEATH ROW. BUT THE INTERESTING POINT IS THAT THE 

IDENTITY OF THOSE BLACK OFFENDERS ON DEATH ROW WOULD BE 

SUBSTANTIALLY CHANGED. BECAUSE THERE WOULD BE NINETEEN BLACK 

OFFENDERS WHO WOULD NOT BE THERE. THOSE OFFENDERS WHOSE VICTIMS 

WERE WHITE, AND THEY WOULD BE REPLACED RY ANOTHER GROUP OF 

OFFENDERS WHO RECEIVED LIFE SENTENCES, SOME TWENTY OF THEM. WHO 

WOULD NOW FIND THEMSELVES ON DEATH ROW, ACCORDING TO THIS 

ANALYSIS OF OUR HYPOTHETICAL SYSTEM. 

Q. ARE YOU ABLE, PROFESSOR BALDUS, TO SAY WHICH OF THE TWO 

ALTERNATIVE HYPOTHESES MIGHT OBTAIN IF THERE WERE NO RACIAL 

FACTORS AT WORK IN THE SYSTEM? 

A. I’M SORRY, COUNSEL, WHICH OF THE TWO?   R. WHICH OF THOSE TWO HYPOTHESES WOULD ACTUALLY CONTROL OR 

Govern THE SYSTEM. IF THERE WERE NO RACIAL FACTORS? ARE YOU 

ABLE TO GIVE SUCH TESTIMONY? 

A. WELL, THIS, THIS ANALYSIS INDULGES TWO ASSUMPTIONS. ONE, 

THAT THE PROSECUTORS HAVE NO CONTROL OVER WHO GDES TO A PENALTY 

TRIAL. NUMBER ONE. AND NUMBER TWO, THAT THE JURIES WILL TREAT 

THEM IN AN EVENHANDED FASHION. AND THOSE ARE THE TWO 

ASSUMPTIONS THAT UNDERLIE THIS ANALYSIS. 

ITS FOSSIBLE TO DO THIS ANALYSIS UNDER A, DIFFERENT 

SETS OF ASSUMPTIONS. BUT THAT'S, THOSE ARE THE TWO THAT UNDERLIE 

THIS, SO I CAN ONLY SPEAK TO THE HYPOTHETICAL RESULTS PRODUCED 

IN THIS WAY. 

1 CAN SUGGEST TO YOU THAT WE COULD HAVE DONE AN 

    
  

  

 



  

  

  

  

  

230 

BALDUS - DIRECT 

1 ALTERNATIVE ANALYSIS IN WHICH THE, INSTEAD OF USING THE AVERAGE 

2 DEATH SENTENCING RATE. OR USE THE WHITE VICTIM DEATH SENTENCING 

3 RATE, USE THE BLACK VICTIM DEATH SENTENCING RATE. IF YOU USE 

THE WHITE VICTIM DEATH SENTENCING RATE, THE NUMBERS OF PEOPLE ON 

DEATH ROW COES UP, HIGHER THAN WHAT WE HAVE HERE. 

WHEN YOU USE THE BLACK VICTIM DEATH SENTENCING RATE, IT 

GOES DOWN. 

THE POINT, HOWEVER. IS THAT REGARDLESS OF WHICH DEATH 

Ww
 

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SENTENCING RATE YOU USE, THE DISTRIBUTION OF DEATH ROW PERSONNEL 

10 UNDER THE HYPOTHETICAL SYSTEM IS THE SAME AS IS ESTIMATED IN 

11 THIS HYPOTHETICAL CONTEXT. 

12 '@. IN OTHER WORDS. NO MATTER WHICH OF THE HYPOTHETICALS YQOU 

13 USE, THE PERSONNEL. TO USE YOUR TERM, ON DEATH ROW WOULD CHANGE? 

14 A. YES, THAT'S RIGHT. 

13 MR. BOGER: YOUR HONOR, AT THIS TIME. I MOVE THE 

16 ADMISSION OF DB-99 AND DB-100 INTO EVIDENCE. 

17 MS. WESTMORELAND: YOUR HONOR, ILL OBJECT TO BOTH OF 

13 THESE EXHIBITS. [I FAIL TO SEE THE RELEVANCY WHATSOEVER OF THE 

12 HYPOTHETICAL SYSTEM AS PROPOSED. 

20 THE COURT: I THINK WE HAVE GONE FROM THE STONE AGE TO 

21 THE IRON AGE TO THE MODERN AGE TO THE TWILIGHT SEASON. 

22 IM NOT SURE WHETHER YOU WANT THESE IM AND I“M NOT SURE 

23 WHETHER I WANT THEM IN, AND IM NOT SURE WHAT THEY PROVE. 

24 YOU KNOW, ITS KIND OF PICK YOUR OWN TEXT FOR 

20 DEMAGOGUERY AT THIS STAGE. I MIGHT SUGGEST UNDER DB-9% MR.       
  

 



  

  

r
m
 

  

BALDUS - DIRECT 

1 MCCLESKEY AND A WHOLE LOT OF OTHER FOLKS WOULD BE ON DEATH ROW. 

2 AND YOU MIGHT SUGGEST THAT MR. MCCLESKEY MAY OR MAY NOT BE. AND 

3 ALL WE’RE DOING IS REALLY GETTING INTO THE TWILIGHT ZONE. I 

4 DONT THINK THEY’RE —— THEY“RE INTERESTING, THEY EXPAND THE MIND 

S AND I THINK THEYRE PROBABLY GOOD SOCIAL SCIENCE SORT OF WORK 

4 PRODUCT, BUT I DON’T THINK THEY PROVE ANYTHING IN THE CASE. AND 

7 I WILL NOT ADMIT THEM. 

3 | MR. BOGER: YOUR HONOR, IF I COULD ADDRESS THAT FOR A 

9 MINUTE. 

10 WHAT WE HAD HOPED THEY WOULD INDICATE IS THAT IN THE 

11 ABSENCE OF RACIAL FACTORS WE‘D HAVE SOME DIFFERENT SYSTEM THAN 

12 WE HAVE NOW, WITH SOME PEOPLE ON DEATH ROW WHO ARE NOT NOW ON 

13 DEATH ROW, AND OTHERS NOW ON DEATH ROW WHO ARE NOT. 

14 AND QUR SUGGESTION WOULD BE THAT LIKE IN SOME 

15 EMPLOYMENT DISCRIMINATION SITUATIONS WHERE THE EFFECT OF A 

16 PRACTICE MIGHT NOT HAVE ANY IMPACT, THAT HERE THE EFFECT OF THE 

17 RACIAL FACTORS DOES HAVE IMPACT ON WHO ACTUALLY IS ON DEATH ROW 

1a AND THE ABSENCE OF RACIAL FACTORS WOULD ALSD AFFECT THE   - 1? COMPOSITION OF THAT ROW. 

20 AND THAT-S THE SIGNIFICANCE OF THE HYPOTHETICALS. 

2} THE COURT: THE SIGNIFICANCE OF THE HYPOTHETICALS ~— IT 

22 DOESNT SHOW THAT, THOUGH. AS IT RELATES TO ANY ONE PERSON. IF 

23 YOU COMPARE $9 WITH ONE HUNDRED, 99 SUGGESTS THAT THE SAME 

24 PEOPLE WOULD BE THERE, PLUS MORE. A HUNDRED SUGGESTS THAT 

23 NINETEEN PEOPLE WOULD LEAVE, OR WHATEVER. YOU KNOW, I DON'T         
 



    

  

  

BALDUS - DIRECT 

1 | THINK IT”S PROBATIVE OF ANYTHING. 

< YOU MAY ARGUE THAT AS A CONCLUSION, THAT BUT FOR THESE 

3 FACTORS SOMEBODY MIGHT NOT BE ON DEATH ROW, BUT I DON’T THINK 

4 THIS ANALYSIS, WITH THE GREAT TEMPTATION THAT IS PRESENTED 

be’ THEREIN. TO USE THAT AS A TEXT FOR ESSENTIALLY DEMAGOGUERY IS 

b SUFFICIENTLY RELIABLE FOR ADMISSIBILITY. . | 

7 : MR. BOGER: I HOPED. YOUR HONOR, IT WAS GOING TQ FALL A 

8 LITTLE SHORT OF DEMAGOGUERY., BUT —-— 

2? THE COURT: WELL, THERE‘S A CERTAIN AMOUNT OF BLOODY 

0 SHIRT THAT’S IN ALL OF THIS, BUT DEPENDING ON WHICH SIDE OF THE 

i1 AISLE YOU’RE ON. YOU CAN TAKE 99 OR ONE HUNDRED AND PROVE 

12 ANYTHING YOU WANT TO PROVE. AND I THINK THATS A FAIRLY GOOD 

13 INDICATION THAT IT NEITHER PROVES NOR DISPROVES ANY FACT AT 

14 ISSUE IN THIS CASE. 

15 MR. BOGER: ALL RIGHT. 

16 BY MR. BOGER?: 

17 Q. PROFESSOR BALDUS., OF COURSE, YOU KNOW THAT GEORGIA HAS AN 

18 APPELLATE REVIEW SYSTEM. AND THE APPELLATE REVIEW SYSTEM 

po. 12 GOVERNING CAPITAL CASES INCLUDES AN APPELLATE SENTENCE REVIEW. 

20 HAVE YOU TAKEN INTO ACCOUNT IN YOUR ANALYSIS THE EFFECT 

21 OF THAT REVIEW PROCESS ON THE RACIAL IMPACT THAT WE“VE BEEN 

22 TALKING ABOUT? 

23 A. YES, I HAVE. 

<9 1. HOW DID YOU BEGIN THAT ANALYSIS? 

23 A. I BEGAN THE ANALYSIS BY CALCULATING THE PROPORTIONS OF DEATH       
  

 



  

or
 

  

  

  

BALDUS - DIRECT 

SENTENCE CASES THAT WERE REVERSED BY DECISION OF THE GEORGIA 

SUPREME COURT. I EXAMINED THE GEORGIA REPORTS AND FOUND THAT 

GEORGIA SUPREME COURT HAS NOT REVERSED ANY OF THESE CASES ON THE 

| GROUNDS THAT RACIAL FACTORS WERE PRESENT IN THEM, OR IN THE 

SYSTEM GENERALLY. 

2. YOU MEAN EXPRESSLY REVERSED ON THOSE GROUNDS? 

A. RIGHT, NONE WAS EXPRESSLY REVERSED ON THOSE GROUNDS. 

NEVERTHELESS, THE OEORGIA SUPREME COURT HAS A RECORD OF 

REVERSING APPROXIMATELY A QUARTER OF THE DEATH SENTENCE 

DECISIONS THAT IT REVIEWS. MANY ON. OR A NUMBER ON BASIC 

REVERSALS OF THE CONVICTION, BUT BY AND LARGE BECAUSE OF 

REVERSALS OF DECISIONS TAKEN AT PENALTY TRIAL. 

AND DB-101 FRESENTS A DISTRIBUTION OF THE REVERSAL 

RATES BY THE DEFENDANT-VICTIM RACIAL COMBINATION. 

@. WHAT DOES DB-101 REFLECT? 

A. IT REFLECTS THAT IN THE CATEGORY OF WHITE VICTIM CASES THAT 

THERE“S APPROXIMATELY A 27 PERCENT REVERSAL RATE, AND IN THE 

BLACK VICTIM CASES. THAT IT’S APPROXIMATELY 14 PERCENT. 

©. DID YOU DO ANY FURTHER ANALYSIS OF THESE UNADJUSTED FIGURES 

OF RACIAL -—   
A. YES, THE OBJECT OF THE ANALYSIS WAS TO DETERMINE WHETHER THE 

IMPACT OF THESE DECISIONS HAD THE EFFECT OF MINIMIZING THE 

RACIAL EFFECTS THAT WE HAD OBSERVED IN QUR EARLIER ANALYSIS. 

TO MAKE ADJUSTMENTS FOR THAT FACT, 1 REANALYZIED THE 

DATA. TREATING EACH DEATH SENTENCE CASE AS A LIFE SENTENCE CASE, 

    
  

      

 



  

  

  

  

254 

BALDUS ~ DIRECT 

1 IF THE GEDRGIA SUPREME COURT HAD REVERSED THE DECISION ON 

  
< APPEAL, THAT IS, THE DEATH SENTENCING DECISION ON APFEAL. 

| 
SO THIS CONSTITUTED A NEW CODING OF THE DEATH SENTENCE (8

 

DECISION FOR ALL TME CASES, AND THOSE THAT HAD THEIR CASES 4 

be’ SUSTAINED. DEATH SENTENCES SUSTAINED WERE TREATED AS DEATH   

G-
 

SENTENCES AND THOSE IN WHICH IT HAS BEEN VACATED WERE TREATED 

~4
 AS LIFE SENTENCE CAZES. 

8. AND THATS YOUR REASON. PERSPECTIVE OF THE REASON FOR REVERSAL? 

I A. THATS RIGHT. 

10 @. LET ME DIRECT YOUR ATTENTION TO DB-102 FOR IDENTIFICATION 

11 AND ASK YOU TO IDENTIFY THAT DOCUMENT? 

12 A. ALL RIGHT. DB~-102 IS A TWO-PAGE DOCUMENT. IT IS TABLE 62 

13 FROM OUR REPORT. AND IT SHOWS THE REGRESSION CO-EFFICIENTS THAT 

14 WE ESTIMATED IN A VARIETY OF DIFFERENT ANALYSES FIRST BEFORE 

13 ADJUSTMENT WAS MADE FOR APPELLATE REVIEW. AND THEN AFTER AN 

14 ADJUSTMENT WAS MADE FOR APPELLATE REVIEW. 

17 AND ONE CAN SEE IN PART 1 OF THIS TABLE THAT WHEN YOU 

13 CONSIDER THE BACKGROUND, CORRECTION. THAT WHEN ONE CONSIDERS THE 

w 1? DISPARITIES ESTIMATED IN DEATH SENTENCING RATES AMONG OFFENDERS 

20 INDICTED FOR MURDER, THAT THERE IS A MODEST DECLINE IN THE 

21 MAGNITUDE OF THE RACIAL DISPARITIES THAT ARE OBSERVED AMONG 

22 THOSE CASES. 

23 FOR EXAMPLE. RACE OF THE VICTIM DISPARITY DROPS FROM .07 

<4 TO POINT .04, AND RACE OF THE DEFENDANT DISPARITY DROPS FROM .07 

23 TQ POINT .04 AS WELL.       
 



      

  

  

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BALDUS ~ DIRECT 

WHEN, WHEN WE EXAMINE THE JURY DEATH SENTENCING 

DECISIONS, THE EFFECT IS GREATER IN THE CHARGING AND SENTENCING 

STUDY. 

'®%. I’M SORRY, WHERE DO WE LOOK TO EXAMINE THE -- 

A. I“M SORRY. PART 1B, IN A STEPWISE REGRESSION IN WHICH WE 

CONSIDERED FOR POSSIBLE ENTRY INTO THE ANALYSIS ALL OF THE 

VARIABLES IN OUR LARGE FILE OF VARIABLES IN THE CHARGING AND 

SENTENCING STUDY AND ORIGINAL RACE OF VICTIM EFFECT OBSERVED IN 

THE JURY SENTENCING DECISIONS WASHED OUT COMPLETELY. 

IN, IN THE PROCEDURAL REFORM STUDY, THOSE RESULTS ARE 

REPORTED ON TABLE 2, HERE WE SEE THE, AN ANALYSIS OF THE 

COMBINED EFFECTS OF THE PROSECUTORIAL DECISION TO ADVANCE CASES 

TO PENALTY TRIAL AS WELL AS THE JURY DECISION AND HERE WE SEE IN 

THIS ANALYSIS THAT THE RACE OF VICTIM DISPARITIES ARE NOT 

AFFECTED BY THIS ADJUSTMENT FOR BACKGROUND FACTORS, AND THAT IN 

THE, FURTHERMORE. IN PART 2B, AT THE BOTTOM, WE SEE THAT THE 

RACE OF VICTIM DISPARITIES OBSERVED IN THE JURY SENTENCING 

DECISIONS IN THE PROCEDURAL REFORM STUDY ARE REDUCED BY 

APPROXIMATELY FIFTY PERCENT. 

THE COMBINED IMPRESSION IS, RATHER THE OVERALL 

IMPRESSION LEFT BY THIS ANALYSIS IS THAT BECAUSE THE REVERSAL 

RATE IS, IN THE GEORGIA SUPREME COURT IS HIGHER IN THE WHITE 

VICTIM CASES THAN IT IS IN THE BLACK VICTIM CASES, THAT WE 3EE 

AS A CONSEQUENCE OF THOSE APPELLATE DECISIONS SOME REDUCTION IN 

THE MAGNITUDE OF THE RACIAL EFFECTS THAT WE HAVE OBSERVED IN THE 

  

  
    

 



  

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PEs 

BALDUS - DIRECT 

VARIOUS ANALYSES. BUT THAT THEY ARE NOT EXPLAINED AND THAT THEY 

REMAIN APPARENT IN THE ANALYSIS. 

THE COURT: THEY ARE TEN PERCENTAGE POINTS HIGHER. ON 

THE ORDER OF TEN PERCENTAGE POINTS HIGHER. 

YOU DON‘T SUGGEST THAT THAT DISPARITY IN RATE AT THE 

APPELLATE LEVEL IS AS A RESULT OF ANY RACIAL FACTOR, DO YOU? 

THE WITNESS: NO, YOUR HONOR. I DO NOT. OUR ANALYSIS 

|BOES NOT SPEAK TO THAT AT ALL. 

BY MR. BOCER: 

@. WELL. THE EFFECTS THAT YOU SEE IN DB-102, LET ME ASK, DO YOU 

TAKE ACCOUNT THERE FOR THE POSSIBILITY THAT SOME OF THE REVERSED 

CASES CAN THEMSELVES LATER BE GIVEN A DEATH SENTENCE? 

A. OH, YES, THAT, NO. STRIKE THAT. 

THIS ANALYSIS DOES NOT TAKE THAT INTO ACCOUNT WHEN WE 

LOOK AT THE OVERALL EFFECTS OF THE SYSTEM. THAT IS, TABLE 42, 

PART 1, THAT ANALYSIS IS LIMITED TO CASES. THE FIRST, THAT WENT 

THROUGH THE SYSTEM FOR THE FIRST TIME. 

@. IN OTHER WORDS. IF THE CASE WITH A DEATH SENTENCE WERE 

VACATED ON AN EVIDENTIARY PRINCIFLE, WENT BACK TO A SENTENCING 

HEARING AND RECEIVED A DEATH SENTENCE AND WAS ULTIMATELY 

AFFIRMED, THE ADJUSTMENT REALLY WOULD UNDERESTIMATE THE 

CORRECTIVE EFFECT OF THE APPELLATE REVIEW SYSTEM? 

A. THAT'S TRUE. AND, IN FACT, OF THE 128 CASES IN OUR STUDY, 

THERE ARE TWELVE OF THEM THAT WERE RESENTENCED. ELEVEN. I 

BELIEVE, IM NOT SURE, ELEVEN OR TWELVE WERE IN FACT   
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957 
BALDUS — DIRECT 

1 RESENTENCED TO DEATH AFTER THE INITIAL VACATION OF THE DEATH 

ha
 SENTENCE. 

3 THE SECTION HERE, 1B, DEALING WITH JURY SENTENCING 

4 DECISIONS. ALSO PART 2B, THAT SIMILARLY DEALS WITH JURY 

SENTENCING DECISIONS, THAT INCLUDES ALL FENALTY TRIAL CASES. SO 

IT DOES NOT HAVE THAT CHARACTERISTIC TO THE SAME DEGREE AS THE 

“
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8)
 

ANALYSIS IN PART 1. 

3 MR. BOGER: YOUR HONOR. AT THIS TIME I MOVE THE 

9  |ADMISSION OF DB-101 AND 102 INTO EVIDENCE. 

10 M3. WESTMORELAND: YOUR HONOR, I DON‘T SEE THE 

11 RELEVANCE OF EITHER ONE OF THESE PARTICULAR EXHIBITS AT THIS 

12 TIME. 

13 MR. BOGER: YOUR HONOR. IF THE STATE WOULD BE WILLING 

14 TO STIPULATE THE APPELLATE REVIEW PROCEDURES CANNOT AND DO NOT 

1s CORRECT ANY RACIAL DISCRIMINATION THATS FOUND AT THE TRIAL 

14 LEVEL, ID BE HAPPY TO WITHDRAW BOTH EXHIBITS. 

17 IF THE STATE WON‘T SQ STIPULATE,. THEN WE ANTICIPATE 

18 THEY RE GOING TO ARGUE THAT APPELLATE REVIEW MAY HAVE SOME 

12? CORRECTIVE EFFECT, IT SEEMS TO ME THIS IS EVIDENCE THATS QUITE 

20 RELEVANT. 

21 | MS. WESTMORELAND: YOUR HONOR , IT’S AUITE OBVIOUS THAT WE 

<2 WOULD NOT S0 STIPULATE, AND I DON‘T SEE THESE EXHIBITS PROBATIVE 

23 OF WHAT MR. BOGER HAS ASSERTED AT THIS POINT. 

24 MR. BOGER: YOUR HONOR, IF I MAY ADDRESS THE MATTER 

23 BRIEFLY? SOMETIMES I HAVE A FEELING THAT WHEN I ADDRESS THE       
  

 



      

  

  

  

758 

BALDUS - DIRECT 

i COURT WHEN IT-S IN THE MIDDLE OF THINKING THAT I“M NOT HELPING 

IT AT ALL. 

IF THE STATE WILL NOT STIPULATE AS IT SAID THAT THE 

APPELLATE REVIEW PROCESS MIGHT NOT CORRECT. THEN IT APPEARS 

IMPORTANT FOR US TO SHOW THAT IN FACT THE APPELLATE REVIEW 

PROCESS DOESN'T CORRECT FOR ANY RACIAL DISPARITIES THAT EXIST. 

THEY DO SO AFTER CONTROLLING FOR 250 VARIABLES. STEPWISE 

OH
 

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T
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REGRESSION WITH TWO HUNDRED VARIABLES. IN OTHER WORDS, ALL THE 

2? KINDS OF CONTROLS THAT THE FEDERAL COURTS LOOK FOR IN THIS KIND 

10 OF CASE. IT SEEMS TQ ME IT“S RIGHT ON POINT. 

11 1 REALLY DON’T UNDERSTAND. THE STATE MAY WANT TO ARGUE 

12 AGAINST THE WEIGHT OF THIS EVIDENCE. BUT ITS PROBITY OR ITS 

13 ADMISSIBILITY CERTAINLY SHOULD NOT BE IN GUESTION. 

14 THE COURT: I TAKE IT IT’S USEFUL EVERY NOW AND THEN TO 

13 TRY TO REMEMBER WHAT ISSUE IT IS YOURE TRYING TO PROVE. 

16 WHAT ISSUE ARE YOU TRYING TO PROVE? 

17 MR. BOGER: WE“RE TRYING TO PROVE. YOUR HONDR, THAT THE 

18 SYSTEM OF CHARGING AND SENTENCING IN THE STATE OF GEORGIA 

a i? TOLERATES OR CONTAINS RACIAL FACTORS THAT AFFECT THE OUTCOME OF 

<0 SENTENCES IN CAPITAL CASES. 

4 FCI THE, BOTH THE FURMAN V. GEDRGIA CASE AND THE GREGG 

22 VERSUS GEORGIA CASE SUGGESTED. OR PARTICULARLY THE GREGG 

<3 CASE, THAT ONE OF THE FEATURES THAT SAFEGUARDED THE SYSTEM. THAT 

24 MADE IT POSSIBLE TO BELIEVE THAT THERE WEREN‘T ARBITRARY OR 

23 DISCRIMINATORY FACTORS AT WORK WAS APPELLATE REVIEW. 

| 
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259 

BALDUS ~ DIRECT 

THEREFORE, THE SUPREME COURT, IT APPEARS TO ME, COUNTED 

EXPRESSLY ON THE EFFECT OF GEORGIA SUPREME COURT’S SENTENCE 

REVIEW IN MITIGATING OR DISSIPATING ANY ABRITRARY FACTORS THAT 

MIGHT HAVE APPEARED. 

IT SEEMS TO ME THIS TABLE SPEAKS DIRECTLY TO THAT 

ASSUMPTION, ASSUMPTION OF WHETHER APPELLATE REVIEW WILL 

ELIMINATE ANY FACTOR THAT MAY CREEP IN IN DIFFERENT PARTS OF THE 

STATE. IT SUGGESTS THAT THE GEORGIA SUPREME COURTS REVIEW DCES 

NOT CORRECT THOSE PROBLEMS, AND THEREFORE —- 

THE COURT: ARBITRARY AND CAPRICIOUS LIE UNDER THE 

EIGHTH OR 14TH? 

MR. BOGER: THAT”S AN 8TH AMENDMENT THEORY. YOUR HONOR. 

THE COURT: I WILL ALLOW YOU TQ PROFFER IT IN THAT I 

HOPE THIS RECORD WILL DO FOR ALL THE TRIAL JUDGES IN THE 

FEDERAL JUDICIARY. IT WILL REMAIN WITH THE RECORD. I DON’T 

THINK IT“S ADMISSIBLE FOR ANYTHING THAT IS RELEVANT IN THIS 

CIRCUIT, I.E., THAT MCCLESKEY WAS SINGLED QUT BECAUSE oF 

IMPERMISSIBLE CRITERIA. 

MR. BOGER: ALL RIGHT, YOUR HONOR. 

THE COURT: S00. AS TO THOSE DEALING WITH THE EFFECT OF   
THE APPELLATE. WHAT IS THAT. 1017 

MR. BOGER: 101 AND 102, YOUR HONOR. 

THE COURT: THEY ARE MOT ADMITTED, BUT THE CLERK WILL 

RETAIN THEM WITH THE PROFFERED EVIDENCE IN A SEPARATE. SEALED 

FILE.     
  

  

 



  
  

  

  

  

260 

BALDUS - DIRECT 
po

te
 

MR. BOGER: YOUR HONOR, MIGHT I HAVE A MOMENT TO CONFER 

(3)
 WITH COUNSEL? 

THE COURT: ARE YOU CLOSE TO BEING DONE? 

MR. BOGER: VERY CLOSE, YOUR HONOR. WERE THREE OR 

FOUR TABLES AWAY FROM FULTON COUNTY. 

THE COURT: WE DO GET THERE, THOUGH? 

MR. BOGER: WE DO INDEED. 

THE COURT: IM TRYING TO RESIST TURNING TO THE LAST 

PAGE OF THE NOVEL TO SEE HOW IT ENDS. 

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4
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Fo
r MR. BOGER: I“M AFRAID THE LAST PAGE OF THIS NOVEL IS 

i1 GOING TO BE OUR PROFFERED REPORT. WHICH HAS COT SO MANY PAGES 

12 THAT YOU WON’T COUNT IT A PAGE. 

13 BUT I WANT TO CORRECT ONE THING. 

14 BY MR. BOGER: | 

15 0. 1 WAS ASKING YOU, PROFESSOR BALDUS, ABOUT WHETHER THE EFFECT 

16 |OF RESENTENCING ON SOME OF THESE CASES WHERE THERES BEEN A 

17 REVERSAL MIGHT LEAVE YOUR DB~102 UNDERESTIMATING THE OVERALL 

19 RACIAL EFFECT. 

WW 19 | IS THAT YOUR TESTIMONY? 

20 A. MY TESTIMONY IS IT COULD HAVE THAT EFFECT WITH RESPECT TO 

21 PART 1. 

sa, AND IT COULD PART 1A. BECAUSE THAT DOES NOT TAKE ANY 

23 ACCOUNT OF SUBSEQUENT JURY DECISIONS AT RETRIAL, WHEREAS PART 1B 

24 DOES INCLUDE SUBSEQUENT RETRIALS FOR THOSE CASES THAT HAVE HAD 

23 TIME TO COME BACK INTO THE SYSTEM AND FALL WITHIN THE FRAMEWORK           
  

 



  

  
  

  

P61 

BALDUS ~ DIRECT 

OF NUR STUDY. 

IT MAY ALSO BE THAT IT MAY UNDERCOUNT THEM TO THE 

EXTENT THAT SOME OF THE LATER CASES THAT ARE INCLUDED IN THE 

| 

ANALYSIS IN 1B ARE VACATED AND COME BACK IN AND RECEIVE DEATH 

SENTENCES WHICH THEMSELVES ARE NOT VACATED AT A LATER TIME. 

BUT I THINK THE UNDERESTIMATION OF THOSE EFFECTS OF 

REVERSALS IS GREATER TO THE EXTENT IT EXISTS IN PART 1A THAN IT 

DOES IN PART 1B. BECAUSE WE HAVE MANY OF THE RETRIAL CASES IN 

THE 1B. 

D. ALL RIGHT. THANK YOU. 

NOW,» DID YOU CONDUCT ANY ANALYSIS TO SEE WHETHER THE 

EFFECTS OF RACIAL DISPARITIES THAT YOU HAD UNCOVERED MIGHT BE A 

FUNCTION OF A PARTICULAR SUB-PERIOD WITHIN THE GROUP OF YEARS 

DURING WHICH YOUR STUDY WAS CONDUCTED? 

A. YES, 1 DID. 

9. LET ME ASK YOU TO TURN TO DB-103 AND IDENTIFY THAT DOCUMENT? 

‘A. DB-103 IS A. IS TABLE &3 FROM THE CHARGING AND SENTENCING 

STUDY. 

@. WHAT DOES IT REFLECT? 

A. IT REFLECTS ANALYSES OF DATA FROM PARTICULAR TIME PERIODS   
| DURING THE TIME FRAME OF OUR STUDY. 

THERES A OROWING BODY OF LITERATURE IN THE AREA OF 
{ 
i 
[ 

SENTENCING WHICH FOCUSES ON THE QUESTION OF TEMPORAL CHANGES IN 

THE IMPACT OF ILLEGITIMATE AND SUSPECT FACTORS IN SENTENCING 

SYSTEMS. IT IS KNOWN THAT THERE ARE MANY FACTORS INFLUENCING       
  

  

  

 



ee amas Soo—_——————p———" —— TE — L.A — S— S————————. TYE | A ——— ——————. S———_ T——_ JE S——— S— ST ———_" TE - SR m—r— — — 
  

  

  

BALLS - DIRECT | 
| 
c MANGES IN SYSTEMS. CHANGING IN ALTITURES., CHANGES IN PERSONNEL, 

2 THERE ARE MANY FACTORS THAT INFLUENCE A SYSTEM. AND BEFORE ONE 

can MAKE ANY ASSESSMENT ABOUT THE SYSTEM AS A WHOLE IT’S 

IMPORTANT TO DISAGGREGATE THE DATA AND LOOK AT DURING DISCREET 

TIME PERIODS. 

HAL S WHEAT WE DID HERE. WE COMPARE HERE THE 

REGRESSION CO-EFFICIENTS FOR RACE OF VICTIM AND RACE OF 

DEFENDANT ESTIMATED WITH WEICHTED LEAST SQUARES. FIRST. AS THE 

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BENCH MARK FOR COMPARISON, ARE THE CO-EFFICIENT ESTIMATED FOR 

10 THE ENTIRE PERIOD. AND THEN WE BROKE THE DATA DOWN INTO TWO-YEAR 

11 PERIODS, AND ESTIMATED CO-EFFICIENTS FOR THEM. 

12 'Q. THESE ARE UNADJUSTED OR ADJUSTED? 

13 A. THESE ARE ADJUSTED CO-EFFICIENTS. 

34 THE COURT: ADJUSTED FOR WHAT? 

15 THE WITNESS: ADJUSTED FOR THE. IN A STEPWISE 

14 REGRESSION PROCEDURE, YOUR HONOR, THAT SCREENS THROUGH THE 

17 ENTIRE FILE OF OVER TWO HUNDRED AND SOME VARIABLES. MOST OF   13 THESE ANALYSES ENDED UP WITH FROM 4Q TO, 30 TO FIFTY VARIABLES 

w 1? IN THEM. THE SAME TYPE OF PROCEDURE, STEPWISE PROCEDURE THAT 

20 WAS USED IN THE PRINCIPAL PART OF THE ANALYSIS EARLIER. YOUR 

23 HONOR. 

ae AND THE RESULT SHOWS THAT THERE IS A CERTAIN AMOUNT OF   
(INSTABILITY IN THE RACIAL EFFECTS THAT ARE OBSERVED OVER THIS, 

| 

24 THESE DIFFERENT TIME PERIODS, AND THAT. BUT THAT THERE IS NO 

23 STRONG TREND, I GUESS WOULD BE THE POINT, IT EMERGES MOST 

                
 



  

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4 

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@ 

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263 

BALDUS - DIRECT 

CLEARLY. THERES NO TREND EITHER UPWARD OR DOWNWARD IN THESE 

DATA. IT SUGGESTS THAT THESE FACTORS, THE PROPERTIES OF THE 

SYSTEM THAT ARE PRODUCING THESE EFFECTS APPEAR TO HAVE BEEN 

WORKING IN ONE DEGREE OR ANOTHER THROUGHOUT THE PERIOD COVERED 

BY THE STUDY. 

MR. BOGER: YDUR HONOR, AT THIS TIME I MOVE THE 

ADMISSION OF DB-103 INTO EVIDENCE. 

MS. WESTMORELAND: YOUR HONOR, I FAIL TO SEE THE 

RELEVANCE OF THIS PARTICULAR EXHIBIT. ONCE AGAIN WE'RE 

CONCERNED WITH THIS PARTICULAR CASE AND NOT WHAT MAY HAVE TAKEN 

PLACE IN 1974, “78 OR ANY PARTICULAR YEAR. 

THE COURT: IT-S A BOOTSTRAPPING OR DATA VALIDATING OR 

WHATEVER ELSE HE WANTS TO CALL IT. I DON'T THINK IT PROVES ANY 

FACT IN ISSUE, INSOMUCH AS IT ADDRESSES THE RELIABILITY OF THE   STUDY. AND TO THE EXTENT THAT ANYTHING WE-“VE HEARD ABOUT THE 

RELIABILITY OF THE STUDY IS ADMISSIBLE, I THINK THAT IT IS FOR 

ret REASON. 

MR. BOGER: THANK YOu, YOUR HONOR. 

I MIGHT ADD THAT I CERTAINLY FEAR IF WE HAD NOT 

  INCLUDED SUCH A CHART, THE STATE WOULD WELL HAVE SAID, -- 

| THE COURT: I“M SURE THEY WOULD, IF THEY THOUGHT ABOUT 

IT. 

BY MR. BOGER: 

@. PROFESSOR BALDUS, DID YOU CONDUCT ANY ANALYSIS THAT LOOKED 

AT DIFFERENTIAL TREATMENT IN URBAN AND RURAL AREAS WITHIN THE 

    
  

 



  

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4 

764 

BALDUS ~ DIRECT 

STATE OF GEORGIA. AS A POSSIBLE EXPLANATION FOR THE RACIAL 

DISPARITIES THAT MIGHT EXIST IN THE SYSTEM? 

'A. YES. WE DID. 

Q@. LET ME ASK YOU TO DIRECT YOUR ATTENTION TO DB-104 MARKED FOR 

IDENTIFICATION, ASK YOU TO IDENTIFY THAT DOCUMENT? 

A. DB-104 IS TABLE 6& FROM OUR REPORT. AND IT PRESENTS URBAN 

AND RURAL RESULTS PRODUCED IN A SERIES OF DIFFERENT ANALYSES. 

Q. NOW WHY WERE YOU INTERESTED IN A RURAL~URBAN BREAKDOWN? 

A. WELL, BASICALLY, OUR CONCERN WAS SOMEWHAT BROADER THAN 

SIMPLY THE RURAL-URBAN BREAKDOWN. WE WERE INTERESTED IN TESTING 

THE PLAUSIBILITY OF A RIVAL HYPOTHESIS. JUST AS IN THE LAST   
ANALYSIS A PLAUSIBLE IS THE RACIAL DISPARITIES THAT YOU SEE ARE 

CONCENTRATED IN A PARTICULAR PERIOD OF TIME AND THEREFORE THEY 

THREATEN THE VALIDITY OF ANY ASSERTION THERES A SYSTEM-WIDE 

EFFECT. 

SIMILARLY, THERE IS A PLAUSIBLE HYPOTHESIS THAT ONE 

NEEDS TO TEST IN THIS KIND OF RESEARCH. AND IT IS AS FOLLOWS. 

THIS IS A DECISION MAKING SYSTEM THATS HIGHLY 

DECENTRALIZED. DECISIONS ARE MADE IN COUNTIES. BUT THE 

PRINCIPAL ADMINISTRATIVE OFFICER WHO HAS INFLUENCE IN THIS 

SYSTEM IS THE PROSECUTOR. THE PROSECUTORS OPERATE ON A 

DISTRICT- OR CIRCUIT~WIDE LEVEL WITHIN THE STATE JUDICIAL 

CIRCUIT, OF WHICH THERE ARE FORTY-TWO. 

NOW IT IS ENTIRELY PLAUSIBLE THAT. THAT IN FACT THE 

SYSTEM OPERATES IN A PERFECTLY EVENHANDED FASHION WITH RESPECT 

        
  

 



  
  

  
  

  

P65 

BALDUS - DIRECT 

1 TO THESE FASHION FACTORS. RACIAL FACTORS. BUT THERE ARE CERTAIN 

2 CIRCUITS WHERE PROSECUTORS AND JURIES ARE HEAVILY INCLINED TO 

3 IMPOSE DEATH SENTENCES AND DEATH SENTENCES ARE IMPOSED AT 

4 SIGNIFICANTLY HIGHER RATES IN THOSE CIRCUITS THAN OTHER 

= CIRCUITS. IN THOSE CIRCUITS. EVERYONE IS TREATED IN AN 

b  EVENHANDED FASHION, AND FURTHERMORE, THOSE ARE THE CIRCUITS 

4 WHERE YOU FIND MOST OF THE WHITE VICTIM CASES. WHITE VICTIM 

a CASES ARE HEAVILY CONCENTRATED IN THOSE CIRCUITS, AND THAT WOULD 

? HAVE TO AFFECT, WHEN YOU LOOK AT THE DATA STATEWIDE, OF 

10 SUGGESTING RACE OF VICTIM EFFECTS THROUGHOUT THE JURISDICTION. 

11 WHEN IN FACT. THERE IS AN EVENHANDED TREATMENT WITHIN THE 

12 | SYSTEM.   13 | THERE“S A VERY IMPORTANT ARTICLE IN THE LITERATURE THAT 

14 ILLUSTRATES THIS PHENOMENON. IT“S KNOWN AS SIMPSON’S PARADOX. 

13 AND ITS ILLUSTRATED BY A VERY INTERESTING STUDY THAT SOMEONE 

14 DID. 

17 SOMEONE WAS CLAIMING THAT BERKELEY UNIVERSITY WAS 

18 DISCRIMINATING AGAINST FEMALES IN ADMISSION TO GRADUATE SCHOOL. 

ww 19 INDEED WHEN YOU LOOK AT THE AGGREGATE ADMISSION DATA IN BERKELEY   20 UNIVERSITY. THAT WOMEN WERE ADMITTED AT A MUCH LOWER RATE THAN 

21 MEN AND IT WAS ON THE BASIS OF THOSE DATA WHICH COVERED THE 

22 ENTIRE SYSTEM THE CLAIM OF SEX DISCRIMINATION WAS ADVANCED. 

23 BERKELEY UNIVERSITY OPERATES LIKE THE GEORGIA CHARGING 

24 AND SENTENCING SYSTEM. IT-5S HIGHLY DECENTRALIZED INTO THE 

23 DEPARTMENTS WITHIN THE UNIVERSITY.       
 



  
  
  

  

  

| Db 
BALDUS ~ DIRECT 

1 | AN INVESTIGATION OF THE DATA AT THE DEPARTMENTAL LEVEL 

2  |SHOWED THAT THE REASON FOR THE OVERALL DISPARITIES WAS THAT 

3 EN PRINCIPALLY APPLIED TO THE DEPARTMENTS THAT HAD VERY LOW 

4 |OVERALL SELECTION RATES. EVERYBODY WAS BEING TREATED EQUALLY, 

5 FOR EXAMPLE, IN THE ENGLISH DEPARTMENT. BUT THERE WERE 

& PRINCIPALLY WOMEN APPLICANTS AND THE SELECTION RATE FOR PEOPLE 

7 IN THAT DEPARTMENT WAS EXTREMELY LOW. THE STANDARDS WERE VERY 

& (HIGH. SO MOST OF THE WOMEN APPLYING THERE WERE REJECTED WHEREAS 

9 IN THE ENGINEERING DEPARTMENT, FOR EXAMPLE. THE ACCEPTANCE RATES 

10 WERE VERY HIGH. THOSE DEPARTMENTS OF THAT TYPE, WHERE THERE 

11 WERE HIGH ACCEPTANCE RATES. HAD PRINCIPALLY MALE APPLICANTS. AND 

iz IN BOTH OF THOSE DEPARTMENTS, IN FACT, THE WOMEN TENDED TO BE 

13  |FAVDRED SLIGHTLY OVER THE MEN, BOTH IN THE ENGINEERING 

14 [DEPARTMENT WHERE THE RATES WERE HIGH, AND ALSO IN THE HARD 

15 DEPARTMENTS WHERE THE HIGHER STANDARDS WERE IMPOSED, WHERE THE 

14 WOMEN WERE PRINCIPALLY APPLYING. 

17 S0 THE CONSEQUENCE WAS, WHEN YOU AGCGREGATE THE DATA 

18 TOGETHER, THE OVERALL EFFECT SUGGESTS THAT WOMEN ARE BEING 

Ww 19 DISADVANTAGED IN THE SYSTEM, BUT WHEN YOU GO DOWN AND LOOK IN 

20 THE INDIVIDUAL DECISION MAKING UNITS, WHERE DISCRETION IS 

21 ACTUALLY BEING EXERCISED, YOU FOUND JUST THE CONTRARY, NOT 

22 STRONGLY BUT CERTAINLY THERE WAS NQ EVIDENCE OF ANY.BIAS AGAINST 

23 WOMEN. 

24 S0 THAT IS ALWAYS A POTENTIAL RIVAL HYPOTHESIS WHENEVER 

23 YOU’RE DEALING WITH A HIGHLY DECENTRALIZED SYSTEM OF THE TYPE       
 



  

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967 
BALDUS ~- DIRECT 

WERE CONCERNED WITH HERE IN THE STATE OF GEORGIA. 

SO, TO. TO TEST THE PLAUSIBILITY OF THAT HYPOTHESIS, WE 

EXAMINED THE DEATH SENTENCING RATES IN THE VARIOUS JUDICIAL 

CIRCUITS. 

WE DID IT AS WELL IN THE COUNTIES, BUT THE COUNTIES 

HAVE, MOST OF THE COUNTIES HAVE SO FEW CASES IT“S VERY HARD Ta 

MAKE ANY SORT OF JUDGMENT, SO WE PRINCIPALLY CONCENTRATED THE 

ANALYSIS IN THE JUDICIAL CIRCUITS. 

AND WITHOUT ANY ADJUSTMENT FOR BACKGROUND FACTORS. WE 

LOOKED AT THE DEATH SENTENCING RATES AMONG THE JUDICIAL 

CIRCUITS. AND DID SIMPLE CROSS TABULATIONS WHICH RELATED THE 

PROPORTION OF WHITE VICTIM CASES IN THOSE CIRCUITS WITH THE 

DEATH SENTENCING RATES IN THOSE CIRCUITS. 

WE DIDN’T FIND ANY EVIDENCE THAT WHITE VICTIM CASES 

WERE HIGHLY CONCENTRATED IN THE CIRCUITS WHERE THE HIGHEST RATES 

WERE, THERE WAS NOTHING TO SUPPORT THAT. 

WE ALSO FOUND THAT IN THE CIRCUITS THAT HAD, THAT. AT 

THIS LEVEL OF ANALYSIS, THERE WERE DISPARITIES IN TERMS OF THE 

RATES. AT THE CIRCUIT LEVEL. BUT A MORE PROBATIVE WAY TO LOOK 

AT THAT IS TO AGGREGATE THE DATA. THATS WHY WE DID THE 

URBAN-RURAL ANALYSIS BECAUSE IT MAY VERY WELL BE THERE ARE 

SHARFER DIFFERENCES IN TERMS OF DEATH SENTENCING RATES IN 

URBAN-RURAL SETTINGS IN GEORGIA, IN FACT, THERE ARE. THE DEATH 

SENTENCING RATE IS SUBSTANTIALLY HIGHER IN THE RURAL AREAS THAN 

IN THE URBAN AREAS OF THE STATE. AND WE MIGHT SEE SOME EVIDENCE     
  

    

 



  

  
      

  

  

F683 

BALDUS ~ DIRECT 

OF SIMPSON-3 PARADOX IN THAT CONTEXT. THAT WAS THE REASON WE 

MADE THIS COMPARISON BETWEEN THE URBAN AND THE RURAL CIRCUITS. 

AND WHEN WE DID $0, WE FOUND THE EVIDENCE THAT IS 

REPORTED HERE IN DB-104, AND IT SUGGESTS THAT. THAT WE FIND RACE 

OF VICTIM DISPARITIES ARE NOT CONCENTRATED STRICTLY IN ONE 

PARTICULAR AREA OF THE STATE, BUT THAT THERE ARE RACE OF VICTIM 

EFFECTS APPARENT IN BOTH URBAN AND RURAL AREAS, ALTHOUGH THEY 

ARE LARGER AND MORE STATISTICALLY SIGNIFICANT IN RURAL AREAS. 

AND WE FIND THAT THE RACE OF DEFENDANT EFFECTS ARE 

FRINCIFPALLY A PRODUCT OF DECISION MAKING IN RURAL AREAS. 

THAT CAN BE SEEN MORE CLEARLY IF ONE WILL LOOK AT PART 

2 OF DB-104, HERE WE SEE A COMPARISON AMONG THE. THE 

APPROXIMATELY FIVE HUNDRED CASES WITH THE HIGHEST RISK OF 

RECEIVING A DEATH SENTENCE, WHERE I BELIEVE THERE’S THE GREATEST 

ROOM FOR THE EXERCISE OF DISCRETION, THIS IS THE POPULATION 

WHERE I THINK YOU WOULD HAVE THE MOST. THE GREATEST LIKELIHOOD 

OF SEEING A RACIAL EFFECT. 

AND WHEN WE LOOK INTO THIS POOL OF CASES AND SUBDIVIDE 

1T BETWEEN URBAN AND RURAL AREAS, WE SEE THE RESULTS IN PART 2 

OF DB~104. ROW A OF PART 2, SHOWS THAT THE RACE OF VICTIM 

EFFECT IS SUBSTANTIALLY LARGER IN THE RURAL AREAS. IT HAS A 

HIGHER LEVEL. HIGHER DEGREE OF STATISTICAL SIGNIFICANCE. 

WHEN YOU LOOK AT THE NEXT COLUMN OVER. WHERE IT SAYS 

RACE OF DEFENDANT, ALL CASES, YOU MAKE A COMPARISON. YOU SEE 

THAT THE DISPARITY IS MUCH LARGER IN THE RURAL AREAS. 

  
  

    

 



    
  

  

  

  

  

6? 

BALDUS - DIRECT 
Pr
os
t AND THEN WHEN YOU FOCUS IN ON THE WHITE VICTIM CASES 

ONLY. AND AS WE HAVE BEEN SUGGESTING HERE, THE EVIDENCE SUGGESTS IX
 

3 THAT RACE OF DEFENDANT EFFECTS ARE PRINCIPALLY THE PRODUCT OF 

4 |THE PROCESSING OF WHITE VICTIM CASES, YOU SEE HERE A VERY SHARP 

3 DIFFERENCE IN TERMS OF THE URBAN AND RURAL SCENE. IN THE URBAN 

o
n
 SCENE THERE'S A VERY MODEST IMPACT THAT'S NOT STATISTICALLY 

® . 

7 SIGNIFICANT WHEREAS IN THE RURAL CONTEXT YOU SEE A VERY 

a SUBSTANTIAL EFFECT WHICH IS HIGHLY SIGNIFICANT FROM A 

bs STATISTICAL STANDPOINT. 

10 THE COURT: ONE -- ARE YOU DONE? 

11 THE WITNESS: YES, YOUR HONOR, 

12 THE COURT: ONE OF THE THINGS THAT BOWERS AND PIERCE 

13 DID THAT I THOUGHT WAS INTERESTING, AND I GUESS THERE’S A 

14 CERTAIN AMOUNT OF INTUITIVE VALIDATION OF THIS, THEY DID A STUDY 

13 ON REGIONAL, SUBREGIONAL VARIATIONS, AND FOUND THAT THERE WAS A 

146 SUBSTANTIAL DIFFERENCE IN SENTENCING RATES, IMPOSITION RATE, 

17 WITHOUT REFERENCE TO RACE PERHAPS. BETWEEN SQUTH CEORGIA. MIDDLE 

13 GEORGIA, NORTH GEORGIA AND ATLANTA. AND THERE ARE SOME. THERE 

w iP 15 SOME RATIONALE FOR THAT SORT OF A STRATIFICATION.     20 DID YOU MAKE A BREAKDOWN IN THE RURAL BEYOND JUST RURAL 

21 |AND URBAN, AND WHAT IS YOUR DEFINITION OF RURAL AND WHAT I3 YOUR 

2 (DEFINITION OF URBAN? 

23 | THE WITNESS: THE, THE DEFINITION OF URBAN USED HERE, 

248 YOUR HONOR, IS THAT MORE THAN FIFTY PERCENT OF THE POPULATION 

23 LIVES IN AN URBAN PLACE AS DEFINED BY THE BUREAU OF THE CENSUS,     
  

      

 



  

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| 270 
BALDUS - DIRECT 

THE WAY WE SPECIFIED IT. OVER FIFTY PERCENT OF THE PEOPLE IN 

  
|THE CIRCUIT LIVE IN AN AREA, A PLACE DEFINED BY THE BUREAU AS 

HRGA. 

THE COURT: YOU'RE TALKING ABOUT STANDARD METROPOLITAN 

AREA WOULD BE, ANY COUNTY IN A STANDARD METROPOLITAN AREA WOULD 

BE CLASSIFIED AS URBAN? 

THE WITNESS: I DON‘T KNOW THE ANSWER TO THAT, YOUR 

HONOR, WHETHER IT WOULD OR NOT. WE WERE GUIDED BY THE CENSUS 

BUREAUS DEFINITION OF URBAN. CERTAINLY ALL THIS AREA HERE, 

ATLANTA IS URBAN. 

THE COURT: ANYBODY WHO KNOWS ANYTHING ABOUT ATLANTA 

WILL TELL YOU THAT THE TRUE URBAN AREA IS PROBABLY A TWO-COUNTY 

AREA, AND UNDER THE GREATEST STRETCH OF THE IMAGINATION IS NO 

GREATER THAN A FIVE-COUNTY AREA. 

BUT THE CENSUS FOLKS THINK IT’S A 31-COUNTY AREA. AND 

ANY SIMILARITY BETWEEN THE ATTITUDES IN FAYETTE COUNTY ARE 

PURELY COINCIDENTAL AND NEITHER ONE OF THOSE WOULD COINCIDE WITH 

THE ATTITUDES IN THE ATLANTA JUDICIAL CIRCUIT. I THINK I 

COULD ALMOST JUDICIALLY NOTICE THAT. 

THE WITNESS: WELL, WHAT WE DID, YOUR HONOR. WE DID 

REPLICATE BOWERS AND PIERCE’S ANALYSIS, USING THE FIVE REGIONS 

"OF THE STATE. WE BROKE DOWN THE AREA INTO THE REGIONS THEY DID. 

WE TRACKED THEIR CIRCUIT-WIDE BREAKDOWN. 

THE COURT: DOES THAT COME UP OVER HERE A LITTLE BIT? 

THE WITNESS: NO, IT IS NOT INCLUDED IN THIS REPORT.     
  

  

 



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| 

71 

BALDUS - DIRECT 

THE COURT: WELL, YOU KNOW, THAT WAS INTERESTING TO ME 

BECAUSE IF I REMEMBER THE FIGURES, WHAT THEY DEFINED I THINK AS 

MIDDLE GEORGIA HAD THE HIGHEST INCIDENCE OF IMPOSITIONS WHAT 

THEY CLASSIFIED AS SOUTH GEORGIA HAD THE SECOND HIGHEST: WHAT 

THEY CLASSIFIED AS ATLANTA HAD THE NEXT HIGHEST? AND WHAT THEY 

CLASSIFIED AS NORTH GEORGIA HAD THE NEXT HIGHEST, WHICH WOULD 

SUGGEST THAT WITHIN RURAL, THERE I5 A SUBSTANTIAL DIFFERENCE IN 

ATTITUDE OF SOMEBODY, PROSECUTORS, JURY, SOMEBODY IN THE SYSTEM. 

AND I THINK A LOT OF PEOPLE WHO GREW UP IN GEORGIA PROBABLY 

THINK THAT THERE ARE A LOT OF DIFFERENCES IN ATTITUDE AS PERHAFS 

BETWEEN EAST AND WEST IOWA. NORTH AND SOUTH IOWA, WHATEVER. 

THATS INTERESTING. 

ALL RIGHT. 

THE WITNESS: I JUST WANTED TO MENTION ONE OTHER 

ANALYSIS THAT WAS DONE, YOUR HONOR, TO TRY AND DEAL WITH THIS 

POTENTIAL PROBLEM WHERE WE’RE SEEING THE EFFECTS OF HIGH DEATH 

SENTENCING RATES IN PARTICULAR JURISDICTIONS WHERE THERE ARE A 

LOT OF WHITE VICTIMS. 

ANOTHER WAY OF DEALING WITH THIS IS TO INTRODUCE INTO A 

REGRESSION ANALYSIS A VARIABLE THAT STANDS FOR EACH COUNTY, AND 

1 
} 

WE DID THAT. WE DID REGRESSION ANALYSES CONTROLLING FOR   LEGITIMATE FACTORS BUT ALSO INCLUDING IN THE ANALYSIS FORTY-TWO 

VARIABLES. EACH ONE STANDING FOR A CIRCUIT IN THE STATE. AND 

WHAT THAT HAS THE EFFECT OF DOING IS ALLOWING THE EXPLANATORY 

POWER OF THESE CIRCUITS WHICH HAVE HIGH DEATH SENTENCING RATES, 

    
  

  

  

 



  

    

  

  

272 

BALDUS - DIRECT 

3 DEATH SENTENCING RATES THAT ARE ABOVE AVERAGE. TO EXPLAIN THE 

  
2 VARIATIONS IN DEATH SENTENCING RATES, AND THIS PHENOMENON THAT 

3 '1“M DESCRIBING WERE REALLY AT WORK, THAT WOULD TEND TO ELIMINATE 

4 THE RACIAL EFFECTS, AND WHEN WE DID THAT SORT OF ANALYSIS, IT 

3 DID NOT HAVE ANY EFFECT ON THE RACIAL EFFECT. THAT WAS JUST 

A & ANOTHER WAY OF TESTING THE HYPOTHESIS THAT WHAT WE MIGHT BE 

7 SEEING ARE THE EFFECTS OF SIMPSON’S PARADOX. 

8 MR. BOGER: YOUR HONOR, AT THIS TIME, I WOULD MOVE THE 

? ADMISSION OF DB-104 INTO EVIDENCE. 

10 MS. WESTMORELAND: YOUR HONOR, ILL OBJECT TO DB-104 

11 FOR THE SAME REASONS PREVIOUSLY GIVEN AND ALSO ADDITIONALLY I 

12 WOULD OBJECT, I DON‘T SEE ITS RELEVANT TO THE DISCUSSION AT 

13 HAND, PARTICULARLY IN THE LIGHT OF THE DEFINITIONS UTILIZED FOR   
14 URBAN AND RURAL. 

| THE COURT: I AM TROUBLED BY THE LACK OF KNOWLEDGE AS 

16 TO WHAT URBAN MEANS AND WHAT RURAL IS, BUT I WILL ADMIT IT. 

17 MR. BOGER: THANK YOU, YOUR HONOR, 

18 BY MR. BOGER: 

w 19 Q. FINALLY, BEFORE WE REACH FULTON COUNTY, PROFESSOR BALDUS, 

20 yoy HAD TESTIFIED EARLIER THAT A NUMBER OF DEFENDANTS IN THE 

21 CAPITAL SYSTEM HAD PLEADED GUILTY TD MURDER. AND THEN RATHER 

22 THAN BINDING THEMSELVES TO LIFE SENTENCE, HAD GONE ON TO PENALTY 

23 TRIALS, JUDGE TRIALS, AT WHICH THE JUDGE IMPOSED THE SENTENCE OF 

<4 LIFE OR DEATH.   23 DID YOU DO ANY ANALYSIS TO IDENTIFY THE POSSIBLE     
  

 



  

  

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23 

  

    

  

  

73 

BALDUS - DIRECT 

| SENTENCING OUTCOMES IF ONLY JURY SENTENCING DECISIONS WERE 

CONSIDERED AND THE JUDGE SENTENCINGS WERE OMITTED? 

‘0. LET ME DIRECT YOU TO DB-105 MARKED FOR IDENTIFICATION AND 

AND I WILL ASK YOU TO IDENTIFY THAT DOCUMENT? 

A. YES, DB-~10%, WHICH IS TABLE 6&7 FROM OUR REPORT, PRESENTS THE 

RESULTS OF ANALYSIS CONDUCTED WITH DATA FROM THE CHARGING AND 

SENTENCING STUDY. | 

THE NUMBER OF CASES IN WHICH A DEFENDANT IS, 

DEFENDANTS CASE IS ADVANCED TO A PENALTY TRIAL AFTER THE ENTRY 

OF A GUILTY PLEA IN A MURDER CASE IS VERY SMALL, REPRESENTS LESS 

THAN FIVE PERCENT OF THE CASES, MURDER CASES, RATHER PENALTY 

{TRIAL CASES BY MY ESTIMATE, AND NEVERTHELESS WE FELT IT 

IMPORTANT TO CONTROL FOR THE POSSIBILITY THAT IT WAS JUDICIAL 

DECISIONS THAT MIGHT BE PRODUCING THIS EFFECT, RATHER THAN JURY 

DECISIONS OR VICE VERSA. WE THOUGHT IT WAS IMPORTANT TO ATTEMPT 

TO DISENTANGLE THE RESPECTIVE ROLES OF JUDGE AND JURY IN THE 

JURISDICTION. 

S0, WE CONDUCTED ONE ANALYSIS INCLUDING ALL OF THE 

PENALTY TRIAL CASES AND THEN AN ALTERNATIVE ANALYSIS RESTRICTING 

THE DATA TO CASES IN WHICH THERE WAS A JURY PENALTY TRIAL 

DECISION, AND THE RESULTS ARE PRESENTED HERE IN DB-103. 

2. WHAT DO THEY REFLECT? 

A. THEY REFLECT THAT AT THE. THEY REFLECT OVERALL THAT IT MAKES 

NO DIFFERENCE IN THE ANALYSIS, THAT WHEN YOU LOOK AT THE       
  

  

 



  

  

  

  

974 

BALDUS - DIRECT 
po

ey
 

DISPARITIES ESTIMATED AMONG ALL DEFENDANTS INDICTED FOR MURDER, 

3 THAT YOU SEE NO EFFECT. AND WITH RESPECT TO THE RACE OF THE 

VICTIM, JUST A TRACE OF EFFECT WITH RESPECT TO THE RACE OF 

DEFENDANT, AND THAT WITH RESPECT TO THE DEATH SENTENCING 

DECISION OF THE JURY, YOU SEE VERY LITTLE CHANGE AS WELL. 

OUR CONCLUSION IS THAT BECAUSE THE BENCH PLAYS SUCH A 

SMALL ROLE IN THIS PROCESS OF SENTENCING, THAT THE, IT HAS NO 

REAL EFFECT ON IT. AND THAT THE ANALYSES THAT WE HAVE CONDUCTED 

THAT INCLUDE BOTH JURY AND BENCH DECISIONS ARE BASICALLY 

l
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B
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i
 REPRESENTATIVE OF JURY BEHAVIOR. 

11 MR. BOGER: YOUR HONOR, AT THIS TIME I WILL MOVE THE 

12 ADMISSION OF DB-10S INTO EVIDENCE. 

13 MS. WESTMORELAND: YOUR HONOR, I OBJECT. I FAIL TO SEE 

14 | THE RELEVANCE TO THIS CASE. THE INSTANT CASE IS CLEARLY NOT ONE 

13 IN WHICH A JUDGE MADE ANY SENTENCING DECISION. THIS IS JURY 

16 SENTENCING CASE. 

37 MR. BOGER: IN A SENSE I THINK THAT 3 THE POINT, YOUR 

13 HONOR. WE WANTED TO DEMONSTRATE THAT. 

W 1%? THE COURT: ILL ADMIT IT. 

20 WE“LL TAKE A TEN-MINUTE BREAK UNTIL ABOUT 3:20. 

3 MR. BOGER: THANK YOU, 

22 J" yo 

23 (RECESS TAKEN.? 

24 MS. BOLEYN: YOUR HONOR, IF THE COURT PLEASE, AND MR. 

29 BOGER. I°VE ALREADY ASKED HIS PERMISSION, IF 1 COULD BRING ONE       
  

 



  
    

  

  

  

975 

BALDUS ~ DIRECT 

1 MATTER TO THE COURT’S ATTENTION? 

< AS THE COURT KNOWS, THE ATTORNEY GENERALS OFFICE ALSO 

3 | REPRESENTS THE STATE BOARD OF PARDONS AND PAROLES AND THIS 

4 MORNING AT 10130 A SUBPOENA WAS SERVED ON MR. WARR, W-A-R-R, OF 

3 THE STATE BOARD OF PARDONS AND PAROLES BY MR. STROUP ACTING FOR 

o
>
 THE PETITIONER, SUBPOENA DIRECTED HIM TO APPEAR AT TWO 0-CLOCK 

7 | THIS AFTERNOON. | 

3 AND HAVING BEEN HERE THIS MORNING AND HEARD THE COURTS 

9  |COMMENTS ABOUT THE AGENDA FOR TODAY, I ASKED MR. WARR TO REMAIN 

10  |IN OFFICE AND BE ABLE TO BE ON CALL AND TO BE ABLE TO BE HERE IN 

11 |CASE MR. BOGER OR STROUP WANTED HIM. HE IS AVAILABLE THIS 

12 |AFTERNDON, BUT AT SOME POINT I°D LIKE TO SEEK THE OUIDANCE OF 

13 |THE COURT AND THE COUNSEL FOR THE PETITIONER TO KNOW WHETHER 

14  |OR NOT WE CAN RELEASE HIM. HE IS WAITING IN HIS OFFICE PURSUANT 

1%  |TO THE SUBPOENA AND WE CAN HAVE HIM OVER HERE AT ANY TIME. 1 

16  |WAS JUST UNCERTAIN AS TO WHETHER OR NOT HE WOULD BE NEEDED TODAY 

i7 AT ALL.   18 MR. STROUP: YOUR HONOR, I CAN SPEAK TO THAT. I HAVE 

Eo 19 TRIED TO BE IN TOUCH WITH MR. WARR AND HAVE BEEN UNABLE TO REACH 

20 HIM. 

WE HAD THOUGHT THERE MIGHT BE SOME POSSIBILITY OF 

§ 

| 
| 

REACHING HIM THIS AFTERNOON. THAT WAS AT LEAST OUR READING 

22 EARLY THIS MORNING. AND I HAVE TRIED TO REACH HIM TO ADVISE HIM 

24 SIMPLY TO BE ON CALL FOR MONDAY, BUT HAVE BEEN UNABLE TQ DO 

25 S0.       
  

  

 



  

  

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P76 

BALDUS ~ DIRECT 

THE COURT: YOU ARE GOING TO CROSS PROFESSOR BALDUS? 

MS. WESTMORELAND: WHEN MR. BOGER FINISHES, YES, YOUR 

Joncn. 

THE COURT: YOU WANT THIS FELLOW FROM FARDONS AND 

PAROLES AFTER PROFESSOR BALDUS AND BEFORE THE STATISTICIAN OR 

AFTER THE STATISTICIAN? 

| MR. BOGER: WELL, YOUR HONOR, I THINK OUR THOUGHT ON 

THIS WAS ONE OF NOT KNOWING EXACTLY WHEN WE WOULD BE FINISHED 

WITH PROFESSOR BALDUS AT THE OUTSET OF THE DAY, AND NOT KNOWING 

HOW LONG THEY WERE GOING TO TAKE ON CROSS. BUT HAVING THE 

FEELING IT MIGHT BE A PERIOD OF ABOUT AN HOUR OR TWO AT THE END 

OF THE DAY WHICH OBVIOUSLY WON‘T BE NOW, WHEN WE COULD BRING 

THIS PERSON IN FROM THE BOARD OF PARDONS AND PAROLES. 

S00 WITH THAT IN MIND, I THINK MR. STROUP PUT HIM UNDER 

SUBPOENA FOR TWO O'CLOCK AND WAS IN FACT QUT IN THE HALL HOPING 

TO MEET HIM AT TWO O“CLOCK AND SAY YOURE DISMISSED TILL 

MONDAY. 

THE COURT: GET TO THE FOINT. WHEN DO YOU WANT HIM? 

MR. BOGER: WE DON’T WANT HIM TODAY. WE PROBABLY DON’T 

NEED HIM UNTIL AFTER THE STATISTICIAN TESTIFIES. 

THE COURT: ALL RIGHT. PUT HIM ON CALL AND INDICATE TO 

HIM THAT HE WON‘T BE REACHED MONDAY AND HE SHOULD BE AVAILABLE 

TUESDAY, WEDNESDAY AND THURSDAY. 

MS. BOLEYN: THANK YOU, YOUR HONCR. 

MR. BOGER: THANK YOU, YOUR HONOR.     
  

  

 



  

  

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977 

BALDUS - DIRECT 

DAVID C. BALDUS, 

BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND 

TESTIFIED FURTHER AS FOLLOWS: 

DIRECT EXAMINATION (CONT’D) 

BY MR. BOGER: 

@. PROFESSOR BALDUS, AS YOU'RE AWARE, THE PETITIONER IN THIS 

CASE IS WARREN MCCLESKEY. WHO WAS TRIED, CONVICTED AND SENTENCED 

IN FULTON COUNTY HERE IN GEORGIA. 

DID YOU AT ANY POINT RECEIVE A REQUEST FROM ME OR 

ANYONE ELSE TO CONDUCT ANY ANALYSES DIRECTED ONLY TOWARD FULTON 

COUNTY, EMPLOYING THE DATA YOU‘D COLLECTED IN YOUR CHARGING AND 

SENTENCING AND PROCEDURAL REFORM STUDIES? | 

A. YES, 1 RECEIVED SUCH A REQUEST. 

Q. AND DID YOU IN FACT CONDUCT ANY ANALYSIS? 

A. YEE, I DID. 

2. WHAT WAS THE NATURE OF YOUR ANALYSIS? HOW DID YOU PROCEED? 

A. WELL, THE OBJECT OF THE ANALYSIS WAS TO DETERMINE WHETHER 

THE SENTENCING PATTERNS THAT WE HAD OBSERVED STATEWIDE WITH 

RESPECT TO RACE OF VICTIM AND RACE OF DEFENDANT DISPARITIES ALSO 

[PERTAINED IN FULTON COUNTY. AND WHETHER THE EVIDENCE CONCERNING 

FULTON COUNTY SHED ANY LIGHT ON THE QUESTION OF WHETHER WARREN 

MCCLESKEY-S DEATH SENTENCE WAS AN ABERRANT DEATH SENTENCE. OR 

WHETHER RACIAL CONSIDERATIONS MAY HAVE PLAYED A ROLE IN THE 

DISPOSITION OF HIS CASE.       
  

  

 



  
    

  
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78 

BALDUS - DIRECT 

1 RQ. HOW DID YOU BEGIN YOUR ANALYSIS? 

  
2 ki WE BEGAN THE ANALYSIS BY REPRODUCING, OR REPLICATING THE 

3 TYPE OF ANALYSIS THAT WE HAD DONE STATEWIDE WITHIN THE 

4 CONFINES OF FULTON COUNTY AND THAT WAS DONE IN THE. WITH, 

bo’ RATHER, THE DATA FROM THE CHARGING AND SENTENCING STUDY. 

) WE SIMPLY IDENTIFY THE CASES IN WHICH SENTENCE WAS 

7 IMPOSED IN THIS COUNTY AND PROCEED WITH THE ANALYSIS OF THOSE 

8 CASES. 

4 QA. LET ME DIRECT YDUR ATTENTION NOW TO DB-106 MARKED FOR 

0 IDENTIFICATION. ILL ASK YOU IF YOU CAN IDENTIFY THAT DOCUMENT? 

11 A. YES. THIS IS A BREAKDOWN BY STAGE IN THE PROCESS OF THE 

12 CASES IN FULTON COUNTY. AND IT, IT INDICATES THE RATES AT WHICH 

13 CASES ARE DISPOSED OF AT EACH STEP IN THE PROCESS. AND FINALLY 

14 LOOKING AT THE FOOT OF COLUMN B, IT INDICATES THE OVERALL DEATH 

15 SENTENCING RATE IN THE COUNTY. 

16 FURTHERMORE, IT PRESENTS THESE RATES AT EACH STAGE IN 

17 THE PROCESS, BROKEN DOWN BY THE DEFENDANT-VICTIM RACIAL 

18 COMBINATION. 

w 1% RN. WHAT DOES DB-1046 REFLECT? 

20 A. DB-104 SHOWS THAT WHEN YOU LOOK AT THE COMBINED EFFECTS OF 

23 CECISIONS AFTER MURDER INDICTMENTS RESULTING IN A DEATH 

<2 SENTENCE, THAT THE LIKELIHOOD OF A DEATH SENTENCE IS HIGHER IN 

23 WHITE VICTIM THAN BLACK VICTIM CASES. 

24 IT ALSO SUGGESTS THAT AT SOME OF THE EARLIER STAGES IN 

25 THE PROCESS, THAT DEFENDANTS WITH WHITE VICTIMS HAVE A HIGHER       
 



        
erer——— ——— ———————— — 

  

  

  

RTP 

BALDUS - DIRECT 

1 CHANCE OF BEING RETAINED IN THE SYSTEM AND CONTINUING TO RUN A 

RISK OF CAPITAL PUNISHMENT. 

Q. DOES DB-10& THEN SUGGEST ANY HYPOTHESIS ABOUT RACIAL IMPACTS   
IN FULTON COUNTY? 

tla YES. IT DOES SUGGEST A HYPOTHESIS THAT RACIAL FACTORS, 

SPECIFICALLY THE RACE OF THE VICTIM, MAY PLAY A ROLE IN THE 

DECISION MAKING PROCESS HERE. 

8 IT DOES NOT. HOWEVER. TEND TO SUPPORT ANY SUGGESTION 

S  |THAT THE RACE OF THE DEFENDANT DOES. 

0 |@. DOES THIS TABLE TO DB-104 REFLECT UNADJUSTED NUMBERS OR HAVE 

11 |YOU ADJUSTED FOR ANYTHING THERE, BEYOND THE RACIAL 

12 |VICTIM-DEFENDANT COMBINATIONS? 

13  |A. NO. THESE ARE STRICTLY UNADJUSTED DATA PROVIDED FOR PURPOSES 

14 |OF GIVING ONE AN OVERVIEW OF THE SYSTEM AND SUGGESTING 

1S  |HYPOTHESES ABOUT THE POTENTIAL ROLE OF RACIAL FACTORS IN THE 

14 |svsvem. 

17  '@. WAS THIS YOUR FIRST STEP IN THE ANALYSIS OF FULTON COUNTY? 

12 lA. YES. IT WAS. 

» 19 MR. BOGER: YOUR HONOR, 1 MOVE THE ADMISSION OF DB-106 

20 INTO EVIDENCE.   
21 | THE COURT: FOR THE PURPOSE OF DEMONSTRATING THE 

22 PROCESS OF ANALYSIS, IT WILL BE ADMITTED, NOT FOR THE TRUTH OF 

23 THE MATTER ASSERTED THEREIN. 

24 BY MR. BOGER? 

2% A. NOW. PROFESSOR BALDUS, DID YOU THEN GO ANY STEP FURTHER AND       
  

    

 



  

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280 

BALDUS - DIRECT 

1 SHARPEN OR FOCUS YOUR ANALYSIS TO BEGIN TO TEST THE HYPOTHESIS 

BJ
 SUGGESTED BY DE-1067 

a Ia. YES. 1 DID. 

3 @. HOW DID YOU DO THAT? 

(&
 A. 1 FOCUSED ON THE HYPOTHESIS SUGGESTED BY THE PRECEDING 

ANALYSIS, AND THE RESULT OF THAT ANALYSIS IS PRESENTED IN 

{Q. WHAT DOES DB-107 SHOW? 

y
o
 

S
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BR
E 

1 

A. DB-~107 SHOWS UNADJUSTED DISPARITIES IN THE DISPOSITION OF 

10 CASES AT SIX POINTS IN THE CHARGING AND SENTENCING PROCESS IN 

11 FULTON COUNTY. 

12 IT SHOWS THAT AT EACH STAGE IN THIS PROCESS THAT THERE 

13 IS A DIFFERENTIAL TREATMENT IN THE DISPOSITION OF WHITE AND 

14 BLACK VICTIM CASES. 

13 I CAN ELABORATE ON THAT. AT GUILTY PLEA STAGE. BLACK 

146 VICTIM CASES HAVE A HIGHER LIKELIHOOD OF RESULTING IN A 

17 VOLUNTARY MANSLAUGHTER PLEA FOLLOWING A MURDER INDICTMENT. 

i2 @. WHAT’S THE DIFFERENCE THERE? 

w 19 A. ITS MINETEEN PERCENTAGE POINTS DIFFERENCE. 

20 AND WITH RESPECT TO GUILTY FLEAS TO MURDER, THE RATE. 

21 THE WHITE VICTIM CASES RESULT IN PLEAS TO MURDER AT A HIGHER 

22 RATE THAN DO BLACK VICTIM CASES, WHICH IS JUST THE OFFOSITE WITH 

23 RESPECT TO THE PLEAS TO VOLUNTARY MANSLAUGHTER. 

24 AT THE GUILT TRIAL. THE CONVICTION RATE IS HIGHER FOR 

23 WHITE VICTIM CASES FOR MURDER. OUR DATA, AS THEY RELATE TO THIS       
 



  
    

  
  

  

  

BALDUS = DIRECT 

1 DECISION POINT. ONLY ALLOW FOR AN ANALYSIS OF TWO DECISIONS. 

2 THAT 1S. WHETHER THERE WAS A MURDER CONVICTION OR A VOLUNTARY 

3 MANSLAUGHTER CONVICTION. AND THERE IS A NINETEEN PERCENTAGE 

4 POINTS HIGHER RISK OF A MURDER CONVICTION IN A WHITE VICTIM 

> CASE. 

8 & IN TERMS OF THE ADVANCEMENT OF THE CASES TO PENALTY 

¥ TRIAL, THE. RATE IS SOME ELEVEN POINTS HIGHER IN WHITE VICTIM 

8 CASES. 

4 AND IN TERMS OF DEATH SENTENCING DECISIONS IT’S HIGHER 

10 BY SOME 48 PERCENTAGE POINTS. 

11 THE OVERALL EFFECT IN THE SYSTEM IS APPROXIMATELY FIVE 

12 PERCENTAGE POINTS, AND THAT DISPARITY IS STATISTICALLY 

13 SIGNIFICANT AT THE .0S5 LEVEL. THAT IS. THE EFFECTS OF THE, THE 

14 DISPARITIES CALCULATED IN TERMS OF THE COMBINED EFFECTS OF ALL 

1S  |OF THESE DECISION POINTS. 

16 AGAIN 1 ADD, HOWEVER, THAT THESE ARE DISPARITIES 

17 CALCULATED WITHOUT ADJUSTMENT FOR ANY BACKGROUND FACTORS. 

18 MR. BOGER: YOUR HONOR, AT THIS TIME, I MOVE THE 

Ww 319 ADMISSION OF DB-107. 

20 MS. WESTMORELAND: YOUR HONOR, I HAVE THE SAME 

21 (OBJECTIONS. THIS APPEARS AGAIN TO BE, I PRESUME A FOUNDATION 

«2 DOCUMENT AS THE ONE BEFORE IT, SIMILAR TO THE ONE BEFORE IT. 

23 | THE COURT: YES. TO DEMONSTRATE PROCESS. IT WILL EE 

24 ADMITTED, NOT FOR THE PROOF OF THE MATTERS ASSERTED THEREIN. 

25 MR. BOGER: YOUR HONOR, I SUPPOSE 1 SHOULD RENEW OUR       
  
  
    

 



  

  

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82 

BALDUS - DIRECT 

CONTENTION WHICH WE MADE EARLIER AND WHICH I“M AWARE YOUR HONOR 

OVERRULED, THAT ITEMS SUCH AS THIS, WHICH DON’T CONTROL FOR A 

SIGNIFICANT NUMBER OF BACKGROUND FACTORS ARE NOT ADMITTED FOR 

ALL PURPOSES, AT LEAST THAT’S WHAT I UNDERSTAND TQ BE YOUR 

HONORS PREVIOUS RULINGS. 

WE NOW HAVE FOCUSED DOWN FROM THE STATEWIDE SYSTEM ON 

TO FULTON COUNTY. AND IT“S MY SUBMISSION TO THE COURT THAT EVEN 

IF YOUR HONDR’S RULING IS CORRECT WITH RESPECT TO THE STATEWIDE 

RULING, AND. OF COURSE, WE HAVE DISAGREED ON THAT» THAT WHEN ONE 

REACHES A COUNTY LEVEL SUCH AS THIS. EVEN UNADJUSTED DATA OF 

THIS SORT IS RELEVANT AND SHOULD BE ADMITTED FOR THE TRUTH 

THEREDF, AS WELL AS TO SHOW THE PROCESS THAT FROFESSOR BALDUS 

HAS FOLLOWED. 

I THINK WE’RE GOING TQ FIND THAT BECAUSE OF SMALLER 

NUMBER OF CASES. THAT THE DIFFERENT RULES PERHAPS SHOULD APPLY 

AT THIS STAGE THAN APPLY AT A STATEWIDE STAGE WHERE THERE’S A 

LARGER BASE TO DRAW FROM. THAT S MY CONTENTION. 

THE COURT: I UNDERSTAND IT. I HAVE NOT ADMITTED IT. 

MR. BOGER: ALL RIGHT, YOUR HONOR, FINE. WE“LL 

CERTAINLY ABIDE BY THAT. 

BY MR. BOGER: 

QR. NOW, PROFESSOR BALDUS, DID YOU INTRODUCE ANY BACKGROUND 

CONTROLS IN LOOKING AT THESE RACE OF VICTIM DISPARITIES IN 

FULTON COUNTY? 

A. YES. WE STARTED THE PROCESS BY CONTROLLING FOR ONE 

  

  

 



  
    

  

  
  

  

283 

| BALDUS ~- DIRECT 
P
Y
 | STATUTORY AGGRAVATING FACTOR AT A TIME. AND THE RESULTS OF 

THOSE ANALYSES ARE PRESENTED IN DB-108, WHICH IS TABLE 4 FROM 

THE FULTON COUNTY REPORT. 

E
E
 

'Q. WHAT DO THOSE RESULTS SHOW? 

A. THNSE RESULTS SHOW A CLEAR PATTERN OF RACE OF VICTIM a 

& DISPARITIES IN DEATH SENTENCING RATES AMONG THE CASES WHICH OUR 

7 ANALYSIS SUGGESTED WERE DEATH ELIGIBLE UNDER EACH OF THESE 

3 INDIVIDUAL FACTORS. AND THE NUMBERS, THE NUMBER OF THE 

° CATEGORIES ARE NOT VERY LARGE, BUT WE‘RE DEALING WITH A VERY 

0 SMALL NUMBER OF DEATH SENTENCES, ONLY TEN DEATH SENTENCES IN THE 

11 SAMPLE, SO THAT THE IMPORTANT THING HERE IS TO EXAMINE THE 

12 PATTERN, AND THE PATTERN, I THINK, IS PLAIN, THAT THERE ARE 

13 DISPARITIES IN THE DISPOSITION OF THESE CASES THAT TEND TO TREAT 

14 THE, TREAT THE WHITE VICTIM CASES MORE PUNITIVELY THAN THE BLACK 

135 VICTIM CASES. 

146 A. LET ME DIRECT YOUR ATTENTION PARTICULARLY. PROFESSOR BALDUS, 

12 TQ THE B2 AGGRAVATING CIRCUMSTANCE AND THE BS AGGRAVATING 

18 CIRCUMSTANCE. 

ye 17 CAN YOU INDICATE THE RESULTS IN THOSE TWD AREAS? 

20 A. YES. THE ESTIMATED EFFECTS IN TERMS OF THE B2 ANALYSIS IS 

21 NINE PERCENTAGE POINTS DIFFERENCE. AND THE ESTIMATED DISPARITY 

lL | IN THE BS CATEGORY IS TWENTY PERCENTAGE POINTS. 

23 | BUT PARTICULARLY IN THIS LATTER CATEGORY » I WANT TO 

24 [EMPHASIZE THAT THOSE ARE VERY SMALL NUMBERS. HOWEVER, IN THE BZ 

23 CATEGORY, THE ESTIMATED NUMBERS ARE LARGER, ALTHOUGH THERE, THE       
  

 



  

<0 

  

  

  

¥84 

BALDU3 - DIRECT 

DISPARITY BETWEEN THE TWO RATES IS NOT, IT’S SIMPLY NINE POINTS. 

@. LET ME LOOK AS WELL AT B10, KILLING TO AVOID ARREST, WHICH 

yOu HAD INDICATED IN YOUR PREVIOUS TESTIMONY WAS CORRELATED WITH 

THE B8 FACTOR? 

A. YES. WHAT WE SEE THERE IS A NINETEEN PERCENTAGE POINT 

DIFFERENCE IN THE DEATH SENTENCING RATES. 

@. AND IN ALL THESE THREE THAT WE-’VE LOCKED AT, B2, E28 AND B10, 

‘WHICH CATEGORY OF OFFENDER RUNS THE GREATEST RISK OF A DEATH 

SENTENCE AS REFLECTED IN THESE FIGURES? 

A. OH, IN THESE FIGURES IT SUGGESTS THAT THE WHITE VICTIM CASES 

"RUN A HIGHER RISK OF RECEIVING THE DEATH SENTENCE. 

MR. BOGER: YOUR HONOR. 1 MOVE THE ADMISSION OF DB-108 

INTD EVIDENCE. | 

MS. WESTMORELAND: SAME OBJECTION AS NOTED TO THE LAST 

TWO, YOUR HONOR. 

THE COURT: SUSTAIN THE OBJECTION. 

RATHER THAN PLAYING CAT AND MOUSE WITH YOU, UNTIL YOU 

GET INTO BALANCING THE SUBSTANTIAL FACTORS AS DEMONSTRATED 

EITHER BY A KNOWLEDGE OF THE CRIMINAL JUSTICE SYSTEM OR BY ANY 

OTHER RELIABLE STATISTICAL TECHNIQUE, ONE OF WHICH MAY BE THE 

STEPWISE, I DON’T THINK WE‘RE DEALING IN MUCH OF PROBATIVE 

VALUE. 

HAVE YOU GOT SUCH? 

MR. BOGER: YOUR HONOR, I THINK WE HAVE THINGS THAT 

WILL ADVANCE US A GREAT DEAL FURTHER ALONG IN THAT DIRECTION.     
  

 



  

  

  

  

  

| 983 

BALIUS - DIRECT 

1 IM NOT TRYING TO TO PLAY CAT AND MOUSE EITHER. 1 DQ 

2 WANT THESE EXHIBITS INTO EVIDENCE AND I UNDERSTAND YOUR HONORS 

3 RULING AND JUST FEEL A NEED TD MAKE THE RECORD ON THAT AS WELL. 

4 AND DO THINK THESE DO ADVANCE THE ANALYSIS. 

ba THE COURT: HE CAN MAKE HIS OPINION BASED ON ANYTHING 

5 HE WANTS TO, BUT I“M NOT GOING TO LET THEM IN EVIDENCE IF 

7 | THEYRE NOT MINIMALLY ADJUSTED TO FACTORS WHICH EVERYBODY KNOWS 

8 COME INTO PLAY BEYOND THE FEW FACILE THINGS THAT WE“VE DONE SO 

? FAR. 

10 MR. BOGER: YOUR HONOR, LET ME JUST CLARIFY YOUR RULING 

i1 ON 108, 

12 ON DB-10& AND DB~107 I BELIEVE YOU INDICATED THEY WERE 

13 ADMITTED TO SHOW THE PROCESS BUT NOT FOR THE TRUTH THEREFORE. 

14 IS 108 ALTOGETHER EXCLUDED OR IS IT ADMITTED ON THAT LIMITED 

13 BASIS AS WELL? 

146 THE COURT: I WOULD ASSUME THAT IT IS PART OF THE 

A7 HYPOTHESIS BUILDING FROCESS BECAUSE 1M SEEING THE SAME 

13 RECURRENCE OF STEPS THAT I BELIEVE I SAW EARLIER. AND IF YOU   & 19  |WANT IT FOR THAT REASON, I“LL GIVE IT TO YOU FOR THAT REASON. 

20." MR. BOGER: THANK YOU YOUR HONOR. 
| 

21 |BY MR. BOGER: 

22 RQ. NOW FROFESSOR BALDUS, DID YOU TRY TO CONTROL FOR ANY OTHER 

23 BACKGROUND VARIABLES BEYOND THESE INDIVIDUAL STATUTORY 

24 AGGRAVATING CIRCUMSTANCES CONSIDERED ONE AT A TIME? 

23 8. YES. ‘1 LIN.       
  

 



    

  

  

  

86 

BALDUS - DIRECT 

@. AND HOW DID YOU DO THAT? 

A. WELL, ONE METHOD WAS TO IDENTIFY GROUPS OF SIMILAR CASES, 

[dross OF CASES THAT OUR ANALYSIS SUGGESTED HAD A COMPARABLE 

LEVEL OF OVERALL CULPABILITY AS MCCLESKEY‘S CASE. AND THE WAY 

WE COMMENCED THIS PROCESS OF TRYING TO PULL TOGETHER GROUPS OF 

COMPARABLE CASES WAS FIRST TO SORT THE CASES IN TERMS OF THE 

FACTORS THAT STATEWIDE TENDED TO PREDICT WHO RECEIVED A DEATH 

| SENTENCE. 

AS I INDICATED EARLIER, THESE REGRESSION ANALYSES THAT 

SORTED THE CASES ACCORDING TO THEIR PREDICTED LIKELIHOOD OF A 

DEATH SENTENCE GIVE ONE A ROUGH MEASURE OF THE AGGRAVATION LEVEL 

OF THE CASES THAT ONE IS DEALING WITH, AT LEAST AS MANIFESTED BY 

THE DECISIONS OF THE PROSECUTORS AND JURIES WHO HANDLE THESE 

CASES. 

SO, WE PRODUCED A SORT OF THE CASES FROM FULTON COUNTY 

ON THE BASIS OF THESE INDICES. NOT PLURAL, SINGULAR. THE INDEX 

THAT PREDICTED THE LIKELIHOOD OF A DEATH SENTENCE GIVEN A MURDER 

INDICTMENT. 

Q. HOW WAS THIS INDEX CONSTRUCTED? 

A. THE INDEX IS CONSTRUCTED BY EXAMINING THE STATEWIDE ANALYSIS 

WHICH PREDICTS WHO RECEIVES A& DEATH SENTENCE. 

THEN EXAMINING THE INDIVIDUAL FACTS OF EACH CASE IN 

FULTON COUNTY. AND ASSIGNING IT A SCORE WHICH MEASURES THE 

LIKELIHOOD THAT THAT CASE WOULD RECEIVE THE DEATH SENTENCE, 

GIVEN THE FACTS OF THAT CASE.       
  

 



  

    
  

  
  

  

87 

BALDUS - DIRECT 

1 | THOSE CASES WERE THEN RANK ORDERED ACCORDING TO THE 

2 PREDICTED LIKELIHOOD THAT THOSE OFFENDERS WOULD RECEIVE A DEATH 

SENTENCE, AND WE THEN IDENTIFIED THE CASES AMONG THAT GROUP THAT 

4 WERE COMPARABLE IN TERMS OF A PREDICTED LIKELIHOOD TO MCCLESKEY. 

be @. HOW MANY FACTORS WERE TAKEN INTO ACCOUNT IN DEVISING THIS 

& INDEXING SCORE? 

yj A. THENTY, 

8 RA. WHAT WERE THEY? 

2 A. COUNSEL, THESE ARE LISTED AS A FOOTNOTE IN THE FULTON COUNTY 

10 REPORT. 

11 WOULD YOU LIKE ME TO READ THEM? 

12 A. YES, I WOULD, IF YOU DON‘T HAVE A PRESENT RECOLLECTION? 

13 A. NO, I DO NOT. 

  
14 WAS THERE A RACE HATRED MOTIVE IN THE CASE. 

15 WAS THE DEFENDANT A TRIGGER MAN. 

16 DEFENDANT EXPRESSED PLEASURE WITH THE KILLING. 

17 VICTIM FORCED TO DISROBE. 

13 WHAT WERE THE NUMBER OF STATUTORY AGGRAVATING 

Ww 19  |CIRCUMSTANCES IN THE CASE. 

20 WAS THE MOTIVE TO AVENGE THE ROLE PLAYED BY A D.A. OR 

21 |LAWYER. 

Se WAS THERE AN INSURANCE MOTIVE. 

23 | WAS THERE A KIDNAPPING INVOLVED. 

24] CO-PERPETRATOR RECEIVE A LESSER SENTENCE. 

DID THE DEFENDANT ADMIT GUILT AND ASSERT NO DEFENSE. PJ
 

&]
       

  
  

 



  
  

  

  

  

Fa 

BALDUS - DIRECT 
I.

 WAS THERE AN INSANITY DEFENSE. 

DID THE DEFENDANT FANIC IN THE COURSE OF A BURGLARY. 

| DID THE DEFENDANT HAVE IMPAIRED MENTAL CAPACITY. 

PARDON ME. 

WAS THE VICTIM BEDRIDDEN OR HANDICAPPED. 

THE NUMBER OF MAJOR TYPES OF INCRIMINATING EVIDENCE 

AGAINST THE DEFENDANT. 

NUMBER OF MINOR NON-STATUTORY AGGRAVATING FACTORS IN 

o
.
o
o
 

R
d
 

THE CASE. 

10 NUMBER OF VICTIM-RELATED MITIGATING CIRCUMSTANCES. 

ii WAS THERE TORTURE IN THE CASE. 

12 THE NUMBER OF MAJOR NON-STATUTORY AGGRAVATING FACTORS 

13 IN THE CASE. 

14 AND THE STATUS OF THE VICTIM. 

13 iQ. HOW WERE THOSE PARTICULAR FACTORS SELECTED AGAIN? I WANT TO 

16 BE CLEAR ON THEM. 

17 A. THEY WERE COLLECTED OR IDENTIFIED IN A MULTIPLE REGRESSION 

18 ANALYSIS OF THE CASES IN THE STATE OF GEORGIA. ALL OF THE CASES 

& 19 IN THE STATEWIDE SAMPLE. 

20 THE COURT: AS WHAT? 

21 THE WITNESS: AS FACTORS WHICH PREDICT WHO GETS DEATH 

at SENTENCES THROUGHOUT THE STATE OF GEORGIA. 

a THE COURT: AS THE TWENTY THE MOST PREDICTIVE OR —— 

24 THE WITNESS: YES, YOUR HONOR, THE TWENTY THAT ARE THE 

23 MOST PREDICTIVE, WHICH SATISFACTORY. AGAIN, THE CRITERION WE     
  

 



    

    

  

  
  

Fa? 

BALDUS - DIRECT 

| 

LAID DOWN OF BEING NON-SUSPECT. AND BEING AGORAVATING FACTORS 

THAT HAVE AN AGGRAVATING EFFECT, AND MITIGATING FACTORS THAT 

HAVE A MITIGATING EFFECT. 

BY MR. BOGER?: 

Q@. AND BY NOT SUSPECT. YOU MEAN WHAT? 

A. IT’S NOT THE SEX OF THE DEFENDANT. OR THEIR SOCIO-ECONCMIC 

STATUS OF THE DEFENDANT, MATTERS OF THAT SORT. EDUCATIONAL LEVEL 

OF THE DEFENDANT. 

@. ONCE YOU DEVELOPED THIS INDEX. WHAT DID YOU DO WITH THE 

CASES IN FULTON COUNTY? 

A. HAVING IDENTIFIED THIS. OH. INDEX. WE APPLIED IT TO THE 

FULTON COUNTY CASES. AND AS 1 SUGGESTED EARLIER, THIS PRODUCED A 

LISTING OF ALL THE CASES IN FULTON COUNTY, RANK ORDERED IN TERMS 

OF HOW LIKELY THOSE FACTORS AND THE SCORES THAT HAD BEEN 

GENERATED FOR THOSE FACTORS IN THE STATEWIDE ANALYSIS WERE TO 

RECEIVE A DEATH SENTENCE IN THE FULTON COUNTY SAMPLE. 

2. WHAT METHOD DID YOU EMPLOY TO APPLY THE INDEX TO THE FULTON 

COUNTY CASES? HOW DID YOU DO IT?     
‘A. WELL, WE PICKED THE. AFTER HAVING LISTED ALL THE CASES IN 

FULTON COUNTY. WE IDENTIFIED WARREN MCCLESKEY. AND THEN 

IDENTIFIED THE CASES, 27 CASES THAT WERE CLOSEST TO WARREN 

MCCLESKEY IN TERMS OF THIS PREDICTED LIKELIHOOD OF A DEATH 

SENTENCE. 

WE DEFINED THESE AS THE NEAR NEIGHBORS TO MR. MCCLESKEY 

IN TERMS OF THIS LISTING.           
  

  

 



  

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3 

10 

20 

  

    
    

  

  
  

¥90 

BALDUS - DIRECT 

@. AND WHAT’S THE RATIONALE FOR DEFINING NEAR NEIGHBORS? 

A. THE NOTION HERE IS TO TRY AND FIND OFFENDERS WITH COMPARABLE 

LEVEL OF CULPABILITY IN A CASE. AND THIS IS THE SAME METHOD THAT 

WE USED EARLIER IN OUR ANALYSES, TO TRY AND SORT TOGETHER 

CATEGORIES OF CASES WITH SIMILAR LEVELS OF CULPABILITY. 

AS I INDICATED ONE WAY IS TO MATCH CASES STRICTLY IN 

TERMS DF THEIR FACTUAL COMPARABILITY, BUT IN OUR DATA FILE, WE 

ONLY HAD, THAT IS, THE DATA FILE FROM THE CHARGING AND 

SENTENCING STUDY. WE ONLY HAD A COUPLE OF CASES INVOLVING POLICE 

OFFICERS. S0 WE COULDN‘T FOCUS STRICTLY IN THAT FILE ON CASES IN 

WHICH THE VICTIM WAS A POLICE OFFICER. 

WE HAD TO EXPAND OUR NET, IF YOU WILL. TO TRY AND FIND 

OTHER CASES WHICH HAD AN OVERALL CULPABILITY LEVEL THAT APPEARED 

COMPARABLE TO MCCLESKEY, AND THATS ONE OF THE FUNCTIONS THAT 

THAT INDEX PROCEDURE SERVES. IT ENABLES YOU TO WEIGH THE 

AGGRAVATING AND THE MITIGATING FACTORS OF AN INDIVIDUAL CASE 

AGAINST ONE ANOTHER AND PRODUCE AN OVERALL APPROXIMATION OF WHAT 

THE CULPABILITY LEVEL OF THE CASE IS. 

@. ONCE YOU HAD DONE THAT. WHAT THEN DID YOU DO IN YOUR 

ANALYSIS? 

A. WELL, WE FOUND THAT USING THIS METHOD THAT HAVING FICKED THE 

27 CASES THAT WERE COMPARABLE TO MCCLESKEY., THAT WE FOUND THAT 

THERE WERE ANOTHER FIVE PENALTY TRIAL CASES WHICH DID NOT MAKE 

THEIR WAY ON TO THIS LIST. 

BR. THEIR INDEX SCORE WAS NOT HIGH ENOUGH TO GET ON THE LIST? 

  

  

  

 



  
  

  

  
  

  

BALDUS ~ DIRECT 

1 A. THAT’S RIGHT, THEIR INDEX SCORE WAS NOT HIGH ENOUGH TO GET 

2 ON THE LIST, BUT NEVERTHELESS THEY HAD A PENALTY TRIAL. 

3 AND SINCE OUR OBJECT WAS TO TRY AND IDENTIFY PEOPLE WHO 

4 HAD RUN A COMPARABLE RISK OF RECEIVING A DEATH SENTENCE TO 

3 MCCLESKEY. WE FIGURED. WE DETERMINED THAT IT WAS APPROPRIATE TO 

4 6 INCLUDE THOSE CASES IN THIS CATEGORY OF NEAR NEIGHBORS IN TERMS 

z OF COMPARABILITY ON THE ISSUE OF RISK OF A DEATH SENTENCE. SO 

38 THAT LEFT US WITH A POOL OF 32 CASES, INCLUDING MCCLESKEY. 

? BG. WHAT DID YOU DO WITH THE POOL OF CASES? 

10 A. WE THEN READ THE SUMMARIES. AS I MENTIONED TO YOU EARLIER. 

11 ONE OF OUR PRINCIPAL APPROACHES IN HANDLING THESE CASES WAS TO 

12 LOOK AT THE SUMMARY OF EACH CASE. 

13 WE LOOKED AT THE SUMMARIES OF ALL THESE OFFENDERS AND 

14 DEVELOPED A SYSTEM OF CATEGORIZATION, TO SORT THEM INTO LEVELS 

15 WHICH WE CONSIDERED MORE AND LESS AGGRAVATED THAN MCCLESKEY. 

16 @. HOW WERE THOSE DETERMINATIONS OR BY WHOM WERE THOSE 

17 DETERMINATIONS MADE? 

13 A. THESE DETERMINATIONS WERE DONE BY ME, AND THE, THE WORK OF 

Ww 19 SORTING OUT THE CASES WAS DONE BY A RESEARCH ASSISTANT WORKING   20 WITH ME. BUT THE FINAL DETERMINATION OF WHAT CRITERIA WE SHOULD 

21 USE TO DETERMINE MORE OR LESS AGGRAVATED CASES WAS MADE BY ME. 

| 
22 | THE COURT: LET ME ASK YOU A QUESTION. YOU SAID AND TO 

23 IDENTIFY THEM AS BEING MORE OR LESS AGGRAVATED THAN MCCLESKEY? 

24 THE WITNESS: YES, YOUR HONOR. 

ka
 

a THE COURT: OKAY, 1 SEE. ALL RIGHT. I UNDERSTAND. I       
    

 



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BALDUS ~ DIRECT 
f
y
 WAS LOOKING AT THOSE GOOSE EGGS ACROSS THE BOTTOM. AND WONDERING 

IF YOUU HAD IN FACT CLASSIFIED ANY AS BEING LESS AGCORAVATED. BUT 

THEN 1 SEE YOU HAVE PUT ALL THOSE WHERE THE DEATH PENALTY WAS 

NOT IMPOSED IN THAT CATEGORY. 

BY MR. BOGER: 

R. LET ME DIRECT NOW YOUR ATTENTION, FROFESSOR BALDUS. TO 

DB-109 AND ASK YOU IF YOU CAN EXPLAIN WHAT THIS FIGURE 

REPRESENTS. OR TABLE REPRESENTS? 

v 
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A. DB-109, WHICH IS TABLE 5 IN THE FULTON COUNTY REPORT, 

fo
o o FRESENTS THE UNADJUSTED AND ADJUSTED RACE OF VICTIM DEATH 

Py
 

P
N
 SENTENCING RATES AMONG THE CASES IDENTIFIED AS NEAR NEIGHBORS IN 

i2 THE ANALYSIS THAT I HAVE JUST DESCRIBED. 

13 | THE FIRST ROW SHOWS AMONG THIS CATEGORY OF CASES THAT 

14 THERE WAS A DEATH SENTENCING RATE OVERALL OF .32. 

15 AND THAT THE RATE OF THE WHITE VICTIM CASES WAS .47 AS 

16 OPPOSED TO .13 FOR THE BLACK VICTIM CASES. 

17 AND THAT PRODUCED A DIFFERENCE IN DEATH SENTENCING 

13 RATES OF .34. 

@ 1? NOW THOSE CASES WERE SELECTED ON THE BASIS OF THE 

20 BACKGROUND CONTROLS THAT I JUST DESCRIBED, WHICH WAS EMBODIED IN 

21 THE INDEX CREATED FROM THE VARIABLES, WHOSE NAMES I HAVE JUST 

<2 READ. 

23 AS 1 INDICATED, HOWEVER. WE CONSIDERED IT AFPROFPRIATE 

24 TO DO A FURTHER SUBDIVISION OF THESE CASES, WHICH WE DID, AND 

2% PARTS 2A THROUGH -C OF TABLE 5 PRESENT THESE RESULTS.           
  

 



    

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10 

  
    

  

  

93 

BALDUS ~ DIRECT 

I SHOULD NOTE THAT THIS SYSTEM OF CATEGORIZATION WAS 

GENERATED AS WAS THE SYSTEM OF CATEGORIZATION USED IN THE 

ANALYSIS OF THE B2 CASES WITHOUT REGARD TO RACIAL 

CHARACTERISTICS OF THE CASES OR THE SENTENCING OUTCOME OF THE 

CASE. 

THE RESULTS SHOW THAT AMONG THE MORE AGGRAVATED CASES 

THAN MOCCLESKEY. 1 MENTION PARENTHETICALLY THAT MCCLESKEY IS IN 

CATEGORY 2B. BEING CHARACTERIZED AS THE TYPICAL CASE, THAT THE 

MORE AGGRAVATED CASES, INCLUDED FIFTEEN OFFENDERS, AND THAT 

THERE WAS A FORTY-TWO PERCENTAGE POINTS DISPARITY IN THE RATES 

AT WHICH BLACK AND WHITE OFFENDERS WERE SENTENCED TO DEATH IN 

THAT CATEGORY. 

IN MCCLESKEY“S CATEGORY, 2B. WE SEE THAT THERES A MUCH 

LOWER DEATH SENTENCING RATE, AND THAT THE, MCCLESKEY“S GROUF. 

THERE WERE, INCLUDING MCCLESKEY, THERE WERE TWO QUT OF FIVE WHO 

WERE SENTENCED TO DEATH IN THE WHITE VICTIM CATEGORY, WHERE NONE 

OF THE BLACK VICTIM CASES IN THAT RECEIVED THE DEATH SENTENCING 

RATE. 

AMONG THE LESS AGGRAVATED CATEGORIES. WHICH CONSISTED 

OF TEN CASES, THERE WERE NO DEATH SENTENCES IMPOSED.     
|e. “BEFORE 1 GO ON TO YOUR CONCLUSIONS AS A RESULT OF 

CONSTRUCTING AND ANALYZING THIS TABLE. ID LIKE TO ASK YOU 

WHETHER YOU INCORPORATED YOUR CHOICES OF MORE AND LESS 

AGGRAVATED CASES FROM THE DESCRIPTIONS, THE SUMMARIES THAT YOU 

MARE INTO ANY DOCUMENT? 

    
  

  

 



  
  

  

  

74 

BALDUS - DIRECT 

1 Ph. YES. I RIN. 

+ MR. BOGER: I’D LIKE TO AS THE COURT REPORTER TO MARK 
| 

3 FOR IDENTIFICATION AS DB-110, AN EXHIBIT. 

4 THE COURT: IS THAT YOUR TERMINOLOGY. NEAR NEIGHBORS? 

  

5 THE WITNESS: NO. ITS SOCIAL SCIENCE TERMINOLOGY, YOUR 

6 HONOR. : 

7 THE COURT: THANK YOU. 

gs MR. BOGER: IM NOT SURE ANYBODY WANTS THIS GROUP AS 

9  |NEAR NEIGHBORS. YOUR HONOR. | 

10 |BY MR. BOGER: 

$1 @. CAN YOU IDENTIFY THAT DOCUMENT. PROFESSOR BALDUS? 

12 A. D[OB-110 IS A DOCUMENT WHICH CONTAINS THE SUMMARIES OF THE 

13 CASES AND WORKING PAPERS THAT WERE USED TQ CREATE TABLE 5. 

14 IT ALSO INCLUDES INFORMATION ON OTHER FULTON COUNTY 

13 CASES. 

14 @. NOW, I“M GOING TO ASK YOU TO TALK ABOUT THE FIRST PAGE DF 

17 THAT DOCUMENT AND THE RATIONALE AND PROCEDURE FOR SORTING THAT 

ia IT REFLECTS. 

ww 19 MR. BOGER: I WANT TO COURT TO KNOW IVE GOT A COPY OF 

20 THAT FIRST PAGE, I DIDNT HAVE A COPY MADE OF THE ENTIRE BOOK. 

21 IT DID SEEM LIKE IT WAS ADDING A LOT OF PAPER. RUT IF THE COURT 

22 WANTS TO FOLLOW ALONG FROM THIS FIRST PAGE. WHICH IS THE FIRST 

23 PAGE OF DB-110. 

24 BY MR. BOGER: 

_— R. I WANT IT TO BE CLEAR ON THE RECORD, PROFESSOR BALDUS. JUST         
 



  

  

  

  

  

  
  

| 995 
| BALDUS ~ DIRECT 

EXACTLY HOW YOU DID THE SORTING, WHAT CRITERIA YOU FOLLOWED FOR 

MAKING CASES MORE OR LESS AGGRAVATED? 

A. YES. I‘LL RESTATE IT VERY BRIEFLY. 

THE OBJECT WAS TO PRODUCE SUB-GROUPS OF CASES THAT WERE 

COMPARABLE AND TO ESTIMATE RACIAL EFFECTS WITH RESPECT TO THE 

LIKELIHOOD OF A DEATH SENTENCE GIVEN A MURDER INDICTMENT WITHIN 

‘THOSE SUB-GROUPS OF COMPARABLE CASES. 

THE FIRST SORT WAS BASED UPON THE INDEX THAT REFLECTED 

THE OVERALL LIKELIHOOD OF THE DEATH SENTENCE IN THE STATE OF 

GEORGIA. 

WE. THIS SHOWS THE CASES THAT WERE COMPARABLE TO WARREN 

MCCLESKEY IN THAT REGARD. 

WE FURTHER IDENTIFIED A GROUP OF FIVE PENALTY TRIAL   
CASES THAT DID NOT APPEAR ON THAT LIST. 

| WE TOOK THAT GROUP OF 32 CASES, CLOSELY READ THE 

cionees, AND ON THE BASIS OF THAT READING, MADE A 

DETERMINATION THAT FURTHER CATEGORIZATION OF THOSE CASES COULD 

BE MADE IN TERMS OF THE FACTS OF THE CASES AS THEY RELATE TO 

OVERALL LEVEL OF CULPABILITY OF THE CASES. 

Q@. NOW. ON WHAT BASIS DID YOU PICK THE CRITERIA WHICH REFLECT 

WHETHER A CASE WAS MORE AGBRAVATED? 

A. IF A CASE WAS CLASSIFIED AZ MORE AGGRAVATED, IF IT INVOLVED 

UNNECESSARY PAIN, TORTUE OR TORMENT TO THE VICTIM. 

| OR IF IT INVOLVED A HIRED AGENT. RAPE, MULTIPLE 

VICTIMS, OR HELPLESS VICTIM.         
  

  
  

 



  

ie 
DEFENDANT WHO WAS NOT THE TRIGGER MAN OR AN ACCIDENTAL KILLING. 

  

  

        

  

3 Fob 

BALDUS ~ DIRECT 

A CASE WAS CLASSIFIED AS LESS AGGRAVATED IF IT INVOLVED 

A DEFENDANT AND VICTIM WITHIN A ESTABLISHED RELATIONSHIP CR A 

@. ALL RIGHT. AND ON WHAT BASIS, HOW DID YOU COME UPON THESE 

FACTORS AS SORTING THE AGGRAVATING AND MITIGATING -— THE LESS -- 

THE MORE AGGRAVATED AND LESS AGGRAVATED CASES? 

A. I MADE THE JUDGMENT ON THE BASIS OF MY KNOWLEDGE OF THE LAW. 

ITS PERCEPTION OF WHAT MAKES CASES MORE AND LESS AGGRAVATED, AS 

WELL AS MY ANALYSIS OF DEATH SENTENCING DECISIONS IN GEORGIA AND 

ELSEWHERE. 

R. HAVING MADE THAT ANALYSIS, HAVING SEPARATED THE CASES INTO 

THESE CATEGORIES, AND HAVING OBSERVED DISPARITIES THAT AROSE. 

WHATS YOUR CONCLUSION OR WHAT DO YOU THINK DB-109 REFLECTS? 

‘A. DB-10% REFLECTS IN THE MORE AGGRAVATED CATEGORY, RACE OF, 

RACE OF VICTIM EFFECTS. THE BLACK VICTIM CASES HAVE A LOWER 

LIKELIHOOD OF RECEIVING A DEATH SENTENCE THAN THE WHITE VICTIM 

CASES AND THE SAME THING HOLDS IN THE TYPICAL CATEGORY. 2B. THAT 

A NEXT LESS AGGRAVATED CATEGORY. AND THERE IS, HOWEVER, NO 

DISPARITY IN THE LEAST AGGRAVATED CATEGORY. 

ALSO THIS PATTERN THAT WE SEE HERE WHERE THERE’S NO 

DISPARITY AMONG THE LEAST AGGRAVATED CATEGORY. BUT SOME 

DISPARITY IN. AMONG THE MORE AGGRAVATED CASES IS CONSISTENT WITH 

THE PATTERN THAT WE HAVE OBSERVED THROUGHOUT THE STATE OF 

GECRGIA WITH RESPECT TO THE RACE OF THE VICTIM. 

Q. WHAT DOES IT SUGGEST TQ YOU?       
| 
| 
|   
  

 



  

146 

  
  

  

  

97 

BALDUS - DIRECT 

i 

‘A. WELL. IT SUGGESTS THE SAME THING THAT THE STATEWIDE DATA 

SUGGESTS. THAT THE RACE OF THE VICTIM HAS AN EFFECT IN THE 

DECISION MAKING PROCESS. 

MR. BOGER: YOUR HONOR, AT THIS TIME, I MOVE THE 

ADMISSION OF DB-109 AND DB-110 INTD EVIDENCE. 

MS. WESTMORELAND: YOUR HONOR, I OBJECT TO BOTH 

DOCUMENTS ON SOME OF THE SAME GROUNDS PREVIOUSLY NOTED, BUT ALSO 

ON THE ADDITIONAL CROUND THAT MY CONCERN AS TO THE PARTICULAR 

CHARACTERISTICS THAT HAVE BEEN SELECTED APPARENTLY BY PROFESSOR 

BALDUS BASED ON HIS OWN JUDGMENT IN THE CASES AS TO WHAT MAY OR 

MAY NOT MAKE A CASE MORE AGGRAVATGED OR LESS AGGRAVATED, I’M NOT 

SURE THAT THIS TABLE IS RELEVANT IN LIGHT OF THAT EXERCISE OF 

JUDGMENT. 

THE COURT: HOW HAVE YOU GOT MARCUS WAYNE CHENNAULT 

CHARACTERIZED? 

THE WITNESS: HE“S IN THE MOST AGGRAVATED CATEGORY, 

YOUR HONOR. 

THE COURT: HOW ABOUT HOUSE? 

THE WITNESS: HE’S UP IN THAT CATEGORY, TOO, YOUR 

HONOR. 

THE COURT: MCCORQUODALE? 

THE WITNESS: YES, SIR. THE MOST AGGRAVATED CATEGORY. 

THE COURT: HAVE YOU GOT THE SUMMARIES THERE. 

THE WITNESS: YES, SIR. 

THE COURT: LET ME LOOK AT THEM. HOW HAVE YOU GOT THEM         
  

  
  

 



  

  

  

  

BALDUS - DIRECT 
Pa
y | ARRANGED? 

THE WITNESS: SEE. THEYRE ARRANGED BY THE MOST 

| AGGRAVATED FIRST. YOUR HONOR, AND THEN THEY RE ORGANIZED BY 

NUMBER. 

BUT YOU CAN SEE THEM IN TERMS OF THE LEVEL OF 

AGGRAVATION HERE, SUMMARY, AND THEN HERE ARE THE MORE 

AGGRAVATED, TYPICAL, AND LESS AGGRAVATED. 

MR. BOGER: I MIGHT NOTE FOR THE RECORD, I DIDN‘T 

REALIZE UNTIL I SAW PROFESSOR BALDUS PICK IT UP, BUT DB-110 ALSO 

FW
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CONTAINS SOME ANALYSES OF POLICE OFFICER CASES WHICH WE'RE ALSO 

11 GOING TO OFFER. AND, OF COURSE. THAT PORTION OF THE DOCUMENT 

12 ‘WERE NOT OFFERING AT THIS TIME. 

13 THE COURT: UH HUH. 

14 IM NOT GOING TO SIT HERE AND READ ALL oF THESE. I WAS 

13 JUST TRYING TO CET A FLAVOR. 

16 I THINK THE EASIEST THING TO DO IS TO ALLOW ALL OF THE 

17 EVIDENCE OF CARE TO CREATE A SLIGHT PRESUMPTION. AND THAT IS 

13 SOME DEGREE OF ACADEMIC HONESTY. TO SAY THAT HAVING EXERCISED 

Ww 1? SOME MORE SOPHISTICATED ANALYSIS WITH REFERENCE TO THIS DATA, 1 

20 WILL ADMIT IT. 

«1 1 HAVE LOOKED AT TWO SUMMARIES. AND CAN ALREADY FIND 

22 THAT I WOULD HAVE SOME GUT LEVEL ARGUMENT WITH THE NEAR NEIGHBOR 

23 ANALDGY, BUT I THINK THAT MAYBE GOES MORE TO THE WEIGHT THAN IT 

24 DOES TO THE ADMISSIBILITY. 

25 SO I WILL ADMIT IT.         
—— —— — —— — ——— p————  T— An... SO ———... HO—————" ——————r—— —— —— —— ———— a——— p——. S— ———. ———— _ a— B—————  



  

  

  

  
  

999 
BALDUS - DIRECT 

IF YOU CAN DEMONSTRATE THAT IT IS NOT AS ADVERTISED, I 

WILL BE GLAD TO HEAR FROM YOU ON A MOTION TO STRIKE. 

M3. WESTMORELAND: YOUR HONOR, I BELIEVE WE EXAMINED 

THIS DOCUMENT IN SYRACUSE, IF I‘M NOT MISTAKEN, BUT I HAVEN’T 

SEEN A COPY HERE TODAY. 

MIGHT I PERHAPS REQUEST THAT WE COULD BE PROVIDED WITH 

AN OPPORTUNITY TO LOOK THROUGH IT SOMETIME DURING THE 

PROCEEDING. | 

| THE COURT: I THOUGHT I ASKED BOTH OF YOU TO SWAP 

DOCUMENTS, ABOUT MONDAY. 

MR. BOGER! YOUR HONOR, THIS IS AN ORIGINAL DOCUMENT 

THAT WE SIMPLY. I DON’T HAVE A COPY OF IT MYSELF. THEY 

CERTAINLY HAD ACCESS TO IT IN SYRACUSE. 

THEYVE GOT A REPORT ON THE FULTON COUNTY MATERIAL THAT 

MAKES WIDE REFERENCE TO THIS. WE HAVE SUMMARIES OF —- 

THE COURT: EXCUSE ME, MR. BOGER. I ASKED YOU ON 

MONDAY TO SWAP DOCUMENTS. YOU HAVEN'T. PLEASE DO. 

LET/S GO. 

MR. BOGER: ALL RIGHT. YOUR HONOR. 

BY MR. BOGER?   
| 
Q. PROFESSOR BALDUS, HAVE YOU CONDUCTED ANY OTHER ANALYSES 
| | 
BEYOND THOSE IN DB-109 AND DB-110., OR REFLECTED WITH DB-10%, 

WHICH LOOK AT RACIAL FACTORS IN FULTON COUNTY CONTROLLING FOR 

THE SERIQUSNESS OF THE OFFENSE? 

A. YES. I DID A MULTIREGRESSION ANALYSIS. STEPWIZSE REGRESSION 

    
  

  

 



  
    

  

  

1000 

BALDUS - DIRECT 

1 ANALYSIS IN FULTON COUNTY ON THE QUESTION OF WHETHER OR NOT 

THERE WAS A DEATH PENALTY IMFOSED AMONG CASES FOR MURDER 

| INDICTMENT. AND THE EFFECT OF THAT. THE EFFECT OF THAT ANALYSIS 

DID NOT SHOW ANY RACE OF VICTIM EFFECT. 

QR. CAN YOU EXPLAIN THAT? 

A. YES. THE CONSERUENCE OF THE ANALYSIS WAS THAT THERE WAS A 

«
>
 

s
W
O
N
 

VERY SMALL RACE CO-EFFICIENT ESTIMATED AFTER CONTROLLING FOR 

SOME 40 OR 50 VARIABLES, AND IT WAS NOT STATISTICALLY 

g
 

SIGNIFICANT. 

10 | THE EXPLANATION FOR THAT. I THINK. IS VERY SIMPLY THAT 

i1 IT REFLECTS THE IMPACT ACROSS A WIDE VARIETY OF CASES IN THE 

: Bet JURISDICTION, MOST CASES IN THIS JURISDICTION ARE NOT AT ALL 

13 AGGRAVATED. 

14 I THINK THAT THE POCKETS OF DISPARITY WITH RESPECT TO 

13 THE RACE OF THE VICTIM ARE CONCENTRATED STRICTLY AMONG THE MOST 

16 AGGRAVATED CASES AND THOSE ARE THE CASES THAT ARE EMBRACED IN 

17 THE NEAR NEIGHBOR THAT I JUST PRESENTED. 

18 BUT WHEN YOU LOOK AT THE AVERAGE EFFECT OVER THE ENTIRE 

, 19 SYSTEM, IT DOES NOT PRODUCE A STATISTICALLY SIGNIFICANT 

20 CO-EFFICIENT IN A STEPWISE REGRESSION. 

21 @. LET ME ASK YOU TO LDOK AT WHATS MARKED DE-111 FOR 

22 IDENTIFICATION. 

23 A. UH HUM, YES, DB-1}]1 —— 

24 A. EXCUSE ME. DB-11i7 

Pte A. 1 BEG PARDON. DB-111 IS A, TABLE NUMBER 3 FROM OUR REPORT.     
  

 



  

[8
 

  

      

  

1001 

BALDUS - DIRECT 

| AND WHAT IT SHOWS IS AN ANALYSIS CONDUCTED AT EACH LEVEL IN THE 

CHARGING AND SENTENCING PROCESS IN FULTON COUNTY. AND THIS IS 

AN ANALYSIS THAT ADJUSTS FOR BACKGROUND FACTORS INVOLVED. THAT 

EXPLAIN THE DECISIONS AT EACH OF THESE POINTS IN THE PROCESS. 

I DESCRIBED HERE EARLIER HOW WE CREATED AN INDEX TO 

IDENTIFY COMPARABLE CASES FOR THE CONSTRUCTION OF DB-109. 

I REPEATED THAT ANALYSIS WITH RESPECT TO DECISIONS MADE 

AT THE EARLIER STAGES IN THE ANALYSIS, PARDON ME, THE EARLIER 

STAGES IN THE PROCESS STATEWIDE, AS I CONDUCTED AN ANALYSIS OF 

INDICTMENT DECISIONS THROUGHOUT THE STATE. AN ANALYSIS OF PLEA 

BARGAIN DECISIONS, VOLUNTARY MANSLAUGHTER. MURDER PLEAS. 

DEATH SENTENCING AT JURY TRIAL. LIKELIHOOD THAT A CASE 

WOULD BE ADVANCED TQ A FENALTY TRIAL. 

AND I THEN APPLIED THE RESULTS OF THOSE ANALYSES TO 

RANK ORDER THE CASES IN FULTON COUNTY AT EACH ONE OF THESE 

STAGES IN THE PROCESS AND TO IDENTIFY THE CASES THAT WERE 

COMPARABLE TO WARREN MCCLESKEY, AT EACH STAGE IN THIS PROCESS. 

THE COURT: WHAT ARE YOU TALKING ABOUT, NOW, EXHIBIT 

NUMBER -—-—   THE WITNESS: 111, YOUR HONOR. DB-11l. 

| THE COURT: WELL, WHERE IS YOUR MULTISTEP REGRESSION 

ANALYSIS? 

| : THE WITNESS: THE RESULTS OF THAT ANALYSIS ARE NOT 

\REFORTED HERE. YOUR HONOR. THEY RE NOT STATISTICALLY 

SIGNIFICANT, AND THE CO-EFFICIENT WAS VERY SMALL. 

    
  

  

 



  

  

  

  

a 1002 

BALDUS - DIRECT 

1 THE ACTUAL TECHNICAL REPORT ON IT, THE SIZE OF THE 

2 [CO=EEFICIRNY AND THE LEVEL OF SIGNIFICANCE IS REPORTED IN OUR 

3 FINAL REPORT ON FULTON COUNTY. 

4 THE COURT: IF THE STATE DOESN-T INTEND TO INTRODUCE 

a 17, I WANT IT IN AS PART OF THE RECORD IF WE HAVE TO MARK IT AS 

® 4 COURT 1. 

7 ALL RIGHT. GO AHEAD. 

8 THE WITNESS: THE —— 

9 MR. BOGER: LET ME JUST ADD FOR THE RECORD, YOUR HONOR, 

10 WE HAD INTENDED, OF COURSE. TO INTRODUCE, AND STILL DO, THAT 

11 WHOLE REPORT IF WE CAN AND I SIMPLY WANTED THE RECORD TO BE 

12 CLEAR AS WE MOVED ALONG THIS HAD BEEN DONE AND HADN’T HAD THOSE 

13 |SIONIFICANT RESULTS. 

14  |BY MR. BOGER: 

15  !@. PROFESSOR BALDUS, IF YOU —- 

16 THE COURT: YOU KEEP SAYING THAT. AND I HAVE 

17 | INTENTIONALLY NOT SAID A THING, BECAUSE I DON’T KNOW WHAT YOU“RE 

1& | TALKING ABOUT IN TERMS OF A REPORT. 

& 19 | MR. BOGER: WE ARE ONE DOCUMENT AWAY FROM HAVING A 

20  |DISCUSSION ABOUT THAT MATTER. YOUR HONOR. 

21 THE COURT: WELL, LET’S GET ON TO THAT, AND TAKE A 

22  |BREAK, AND WE-LL COME BACK AND DISCUSS IT. 

23 MR. BOGER: THANK YOU. 

24  |BY MR. BOGER: 

29 2. PROFFESSOR BALDUS, WHAT DOES DB-111 REFLECT?         
    

 



  

  

  

14 

  

1003 

BALDUS - DIRECT 

A. IT REFLECTS THE RESULTS OF THE ANALYSIS, ANALYSES THAT WE 

DID AT EACH STEP IN THE PROCESS. TO SUMMARIZE, WE ESTIMATED IN 

REGRESSION ANALYSIS. AT BEST PREDICTED. DISPOSITION OF CASES AT 

EACH STEP IN THIS PROCESS, AND USING THAT ANALYSIS WE WERE ABLE 

TO RANK ORDER THE CASES IN FULTON COUNTY. WITH RESPECT TO THE 

LIKELILHOOD OF SELECTION AT EACH POINT IN THIS PROCESS. 

ON THE BASIS OF THOSE ANALYSES, WE WERE ABLE TO 

IDENTIFY GROUPS OF NEAR NEIGHBORS AT EACH ONE OF THESE SELECTION 

POINTS. 

AND WE IDENTIFIED WARREN MCCLESKEY-S POSITION IN THE 

ORDERING OF CASES AND PULLED OUT THE 2&6 OR 27 CASES THAT WERE 

MOST COMPARABLE TO MCCLESKEY. 

@. THIS IS THE PROCEDURE YQU’VE ALREADY DESCRIBED? 

A. YES, THAT’S RIGHT. 

AND THEN WITHIN THOSE CASES. WE WOULD DETERMINE THE 

DEATH SENTENCING RATE OR. PARDON ME, NOT DEATH SENTENCING RATE, 

BUT AT EACH STAGE WE WOULD IDENTIFY THE RATES AT WHICH 

SELECTIONS WERE MADE AMONG BLACK VICTIM AND WHITE VICTIM CASES. 

AND THAT'S WHATS PRESENTED IN TABLE 8. 

AND AS YOU CAN SEE, THERE ARE, THERE'S A VERY SLIGHT   
EFFECT. I MEAN ALL THESE CASES, ALL OF THESE ANALYSES SEES SHOW 

RELATIVELY, INVOLVE RELATIVELY SMALL SAMPLES BY VIRTUE OF THE 

METHOD WE USED TO TIGHTEN CONTROL FOR COMPARABILITY IN TERMS OF 

OTHER FACTORS. 

ROW 1 SHOWS A VERY SMALL EFFECT. RACE OF VICTIM EFFECT     
  

  
  

 



  
      

  

  

  

1004 
BALDUS - DIRECT 

i |AT STAGE OF INDICTMENT. NEAR NEIGHBORS. 

2 ©. THATS, THE EFFECT IS IN WHAT COLUMN? 

3 A. OH. IN COLUMN E., RIGHT. 

4 3 O67 

5 A. SIX PERCENTAGE FOINTS HIGHER CHANCE OF SELECTION FOR WHITE 

& VICTIM CASES. 

7 AMONG THE NEAR NEIGHBORS TO WARREN MCCLESKEY., NO ONE 

a RECEIVED A PLEA TO VOLUNTARY MANSLAUGHTER OR WAS ALLOWED TO 

9 PLEA. 

10 THERE WERE AMONG THE NEAR NEIGHBORS TO WARREN 

11 MCCLESKEY, THERE WERE TWO PEOPLE WHO PLED GUILTY TO MURDER, AND 

12 THOSE WERE. THOSE WERE BLACK VICTIM, RATHER THAN WHITE VICTIM 

13 CASES. ALL ARE COMPARABLE DEFENDANTS, WERE CONVICTED OF MURDER, 

14 AND THE COMPARABLE CASES WERE, CASES COMPARABLE TO MCCLESKEY 

15S  |ADVANCED TO PENALTY TRIAL AT ESSENTIALLY THE SAME RATE. 

1&4 HOWEVER, WHEN YOU LOOK AT THE DEATH SENTENCES IMPOSED 

17 AT PENALTY TRIAL, YOU SEE A DISPARITY OF FORTY-FIVE PERCENTAGE 

12 POINTS IN THE RATE THAT DEATH SENTENCES WERE IMPOSED, SEVEN OUT 

19 OF TEN OF THE WHITE VICTIM CASES RESULTED IN DEATH SENTENCE, 

20 WHEREAS ONLY TWO OUT OF THE EIGHT BLACK VICTIM CASES RESULTED IN 

21 A DEATH SENTENCE. 

22 A. WHAT DO THESE RESULTS SUGGEST? 

23 A. THESE. THESE RESULTS SHOW THAT, AT THESE VARIOUS STAGES, 

24 THEY SHOW MILD RACE OF VICTIM EFFECTS. THEY TEND TO EXPLAIN WHY 

23 WE SEE AN OVERALL RACE OF VICTIM EFFECT IN TERMS OF DEATH       
  

 



  

  

  

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100% 
BALDUS —- DIRECT 

SENTENCING RATES IN FULTON COUNTY FOR CASES INDICTED FOR MURDER. 

@. ALL RIGHT. 

MR. BOGER: YOUR HONOR, AT THIS POINT I MOVE THE 

ADMISSION OF DB-112 -- EXCUSE ME ~- 111 INTO EVIDENCE. 

MS. WESTMORELAND: YOUR HONOR, I WOULD LIKE TO ASK ONE 

QUESTION CONCERNING ONE OF THE NUMBERS ON TABLE, IF I MIGHT, 

NUMBER 4. UNDER COLUMN B. SHOULD THAT BE NINE OUT OF EIGHTEEN 

AS OPPOSED TO NINE OUT OF EIGHT, OR AM I READING THE TABLE 

WRONG? | 

BY MR. BOGERS 

G. PROFESSOR BALDUS. DO YOU KNOW WHAT THAT LOOKS LIKE? 

A. WE ACCEPT THE EMENDATION. IT SHOULD BE 18. TYPO. 

THE COURT: WHERE? 

THE WITNESS: ROW 4, YOUR HONOR, NINE OVER 18. IT’S 

OUR MISTAKE. THANK YOU. 

MS. WESTMORELAND: YOUR HONOR, —— 

MR. BOGER: 1 WAS GOING TD SAY AS AMENDED WE MOVE IT 

INTO EVIDENCE. 

MS. WESTMORELAND: OTHER THAN THE FACT THAT IT APPEARS 

DUE TO THE NUMBERS INVOLVED, I WOULD QUESTION THE SIGNIFICANCE 

(OF THE DOCUMENT. 

I HAVE NO OBJECTION OTHER THAN THE ONES PREVIOUSLY 

NOTED THROUGHOUT. 

THE COURT: ILL ADMIT IT. 

MR. BOGER: THANK YOU, YOUR HONOR.     
  

  
  

  

 



  

  rr | sr—_——— ————— m— it 

  

  

1006 

BALDUS - DIRECT 

or THE COURT: IM NOT SURE I UNDERSTAND IT. 

2 BY MR. BOGER: 

3 8: PROFESSOR BALDUS. JUST ONE OR TWO QUESTIONS FOR 

4 CLARIFICATION. 

WHAT IS THE OVERALL POINT OF THIS TABLE? WHAT DOES (8
 

THIS TABLE TRY TO SHOW? 

"la. THE POINT OF THE TABLE WAS TO TRY AND ESTIMATE THE SOURCES 

  

6 

7 

8 |OF THE OVERALL RACE OF VICTIM EFFECT THAT APPEAR WHEN WE COMPARE 

9 |THE DEATH SENTENCING RATES FOR BLACK AND WHITE VICTIM CASES AMONG 

0  |THOSE THAT WERE INDICTED FOR MURDER. THAT PRESENTS THE MEASURE 

11 OF THE STATISTICAL EFFECT PRODUCED BY THE ENTIRE SERIES OF 

12 DECISIONS IN THE PROCESS. 

13 |Q. WHERE DOES IT REFLECT THOSE EFFECTS ARE MOST PROMINENT IN 

14 |THE COURSE OF THE CHARGING AND SENTENCING SYSTEM IN FULTON 

15 COUNTY? 

16 A. THEY APPEAR STRONGEST AT THE. THE PENALTY TRIAL STAGE HERE. 

17 THE COURT: IF I SUGGESTED TO YOU THAT MORE THAN HALF 

18 |OF THE JURORS IN FULTON COUNTY ARE BLACK, WHAT CONCLUSION WOULD 

w 19 |YOU DRAW? 

20  |BY MR. BOGER: 

21 @. PROFESSOR BALDUS? 

22 (A. OH. I THINK THAT’S A FACT, FROM THE BASIS OF WHAT I KNOW, 

23 |AND I WOULD CONCLUDE THAT, THAT, WELL IM NOT SURE WHAT I -- 

24 [CONCLUDE ABOUT WHAT, YOUR HONOR? IT DOESN‘T CHANGE THE NUMBERS, 

29 IN TERMS OF THE RATES AT WHICH THE SENTENCE IS IMPOSED. I THINK       
 



  

    

  
  

1007 

BALIUS ~ DIRECT 
i 

| THAT'S PLAIN. 

| BUT I“M NOT QUITE SURE, YOUR HONOR, WHAT I WOULD 

| 

CONCLUDE WITH RESPECT TO WHAT QUESTION. 

| THE COURT: WOULD YOU CONCLUDE THAT THOSE RATES WERE 

BEING MADE ON THE BASIS OF DECISIONS PRIMARILY MOTIVATED BY 

RACIAL CONSIDERATIONS? 

THE WITNESS: 1 WOULD SAY, YOUR HONOR. THAT THE DATA 

THAT 1 HAVE HERE THAT I PLACED THE GREATEST RELIANCE ON IS THE. 

THE NEAR NEIGHBOR ANALYSIS THAT 1 SHOWED TO YOU EARLIER, AS WELL 

AS THE INFORMATION THAT WERE ABOUT TO CONSIDER WITH RESPECT TO 

THE POLICE QFFICER CASES. 

AND IM NOT SUGGESTING, MY TESTIMONY IS NOT THAT ANYONE 

WAS MOTIVATED BY RACIAL CONSIDERATIONS. WHAT 1M SUGGESTING IS 

THAT THE CASES ARE PROCESSED DIFFERENTLY. THAT DIFFERENT WEIGHTS 

ARE ASSIGNED IN TERMS, IN DETERMINING THE SERIOUSNESS OF THE 

CASES IN THE WHITE AND BLACK VICTIM CATEGORIES. THAT'S WHAT THE 

EVIDENCE SHOWS, I THINK. 

WHY IT SHOWS THAT. THESE DATA DO NOT ADDRESS. YOUR 

HONOR.   BY MR. BOGER: | 

@. PROFESSOR BALDUS. DID YOU OBTAIN ANY INFORMATION ON THE 

COMPOSITION OF MR. MCCLESKEY/S OWN JURY, RACIALLY? 

A. NO. 

THE COURT: DO WE KNOW? 

MR. BOCER: I BELIEVE WITH WE‘RE GOING TD HAVE SOME 

      
  

  
    

  

 



  

  

  

1008 

BALDUS - DIRECT 

1 TESTIMONY ON THAT. YOUR HONCR. 

2 THE COURT: ALL RIGHT, LET'S TAKE A TEN-MINUTE RECESS. 

i hz 

4 {RECESS TAKEN.) | 

3 THE COURT: GO AHEAD. : ; 

i & MR. BOGER: YOUR HONOR, AT THIS TIME, WE INTEND TO 

7 OFFER A FINAL REPORT, WHICH WE‘VE ALLUDED TO SEVERAL TIMES 

8 DURING THE TESTIMONY OF PROFESSOR BALDUS, WHICH INCLUDES AS A 

? PART OF IT A REPORT ON THE FULTON COUNTY CASES. 

10 WHAT I WANTED TO INFORM THE COURT OF IS THAT INTENTION 

11 TO STATE THAT I WOULD LIKE TO ASK A FEW FOUNDATION QUESTIONS OF 

12 PROFESSOR BALDUS, AND I“M AWARE OF YOUR HONOR“S DISINCLINATION 

13 NORMALLY TO HAVE TWO PEOPLE QUESTION A WITNESS. I ASK YOUR 

14 INDULGENCE ON ANY ARGUMENT OF LAW THAT COMES UP, MR. FORD, MY 

15 CO-COUNSEL. HAS DONE A FAIR BIT OF RESEARCH ON WHETHER SUCH A 

14 REPORT IS ADMISSIBLE IN EVIDENCE, AND HAS NOT BEEN ABLE TO POUR 

17 IT IN MY EARS IN THE TEN MINUTES OR $0 WE HAD ON THE BREAK. 30 

13 SINCE ITS NOT A QUESTION OF TWO PEOPLE ARGUING, BUT -- 

w 1? THE COURT: THATS FINE. 

20 MR. BOGER: FINE. 

21 tr 

22 DAVID C. BALIDUS, 

23 BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND 

<4 TESTIFIED FURTHER AS FOLLOWS: 

235 DIRECT EXAMINATION (CONT'D)       
  

 



  

  

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-— 
pat 

16 

  

  

  
  

1009 

BALIUS - DIRECT 

BY MR. BUGER? 

@. PROFESSOR BALDUS, HAVE YOU COMPLETED ANY DOCUMENT TO REFLECT 

THE RESULTS OF YOUR STUDIES AND ANALYSIS, BOTH IN THE CHARGING 

AND SENTENCING STUDY, AND THE PROCEDURAL REFORM STUDY? 

A. YES. 

@. DOES IT CONTAIN AS WELL A REPORT ON THE FULTON COUNTY DATA 

THAT 1 ASKED YOU TO EXAMINE? 

A. YES, IT IT DOES. 

. AND WHO WROTE THAT REPORT? 

A. I WROTE THAT REPORT, IN COLLABORATION WITH GEORGE WOODWORTH 

AND CHARLES PULASKI. 

@. AND HAVE YOU REVIEWED YOURSELF AND VERIFIED ALL THE WRITTEN 

AND NUMERICAL CONTENTS OF THAT REPORT? 

A. YES. 

@. INCLUDING ITS APPENDICES?   
lA. YES. 

a. AND ARE THE CONTENTS ALL TRUE AND CORRECT TO THE BEST OF 

YOUR KNOWLEDGE? 

A. YES. 

Q. COULD YOU RECALL OR WOULD YOU BE ABLE TO TESTIFY TO THE   
| : 

(CONTENTS OF ALL THE FACTS AND NUMBERS IN THAT REPORT YOURSELF? 
| 
| 
A. ON THE BASIS OF MY RECOLLECTION. NO. 

'@. ALL RIGHT. TO THE BEST OF YOUR KNOWLEDGE, DO THE DATA IN 

|THE REPORT ACCURATELY REFLECT THE CONTENTS OF THE RECORDS AND 

FILES OF THE GEORGIA DEPARTMENT OF PARDONS AND PAROLES. THE 

    
  

  
  

 



  
—— p———_ — ———  —— —— —" —— — —— —————— . rp— yp ——— 

  

  

  

| 1010 
| BALDUS ~- DIRECT 

1 GEORGIA DEPARTMENT OF OFFENDER REHABILITATION, AND THE GEORGIA 

2 SUPREME COURT, AND THE OTHER DATA SOURCES YOU/VE COLLECTED, 

3  |SUPPLEMENTED BY THAT INFORMATION ABOUT WHICH YOUVE TESTIFIED? 

3 A. THE UNDERLYING DATA FILE THAT WE USED IN THE ANALYSIS 

5 |CORRECTLY REFLECTS THOSE FACTS TO THE BEST OF MY KNOWLEDGE. 

& AND THE REPORT THAT WE PREPARED CORRECTLY REFLECTS THE 

7 RESULTS OF OUR ANALYSIS OF THOSE DATA. 

8 i@. DO YOU KNOW IF COUNSEL FOR THE STATE, THE ATTORNEY GENERAL, 

NF] HAS BEEN PUT ON NOTICE THAT THE CONTENTS OF THOSE FILES IN YOUR 

10 ANALYSES WOULD BE OFFERED OR BE THE SUBJECT OF PROOF IN THIS 

11 CASE? 

12 A. ON THE BASIS -- YES. 

12 f. AND HOW DO YOU KNOW THAT?   
‘A. I°VE BEEN ADVISED BY COUNSEL TO THAT EFFECT. AND ALSO THAT 

15 en A MATTER THAT WAS IMPLICIT IN THE DEPOSITION THAT WAS 

16 CONDUCTED IN SYRACUSE. 

17 #2. THAT WAS THE DEPOSITION OF YOU? 

18 A. YES. 

Ww 19 QR. BY THE ATTORNEY GENERAL? 

20 A. YES, 

23 QR. AND HAVE YOU TURNED OVER TO THE STATE AT ANY POINT THROUGH 

22 COUNSEL COPIES OF YOUR FINAL REPORT WITH AFPENDICES? 

=4 @. LET ME ASK YOU FURTHER. TO YOUR KNOWLEDGE IS IT POSSIBLE FOR 

23 A CITIZEN OR ANYONE TO OBTAIN COPIES OF THE OFFICIAL REPORTS OF         
  

 



  

  

  

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| 

1011 

BALDUS - DIRECT 

THE GEORGIA DEPARTMENT OF PARDONS AND PAROLES. TO WALK OUT OF 

THE OFFICE WITH THEM AND USE THEM AS ONE CHOOSES? 

A. NO, IT’S NOT POSSIBLE. 

@. AND HOW DO YOU HAVE THAT KNOWLEDGE? 

A. BECAUSE I WENT THROUGH THE PROCESS OF TRYING TO GAIN ACCESS 

TO THOSE FILES. WHICH I DID, AND IT REQUIRED THE APPROVAL OF THE 

BOARD OF PARDONS AND PAROLES. 

GB. AND WHEN YOU OBTAINED ACCESS TO THEM. WERE YOU GIVEN LEAVE 

FREELY TO TAKE THOSE DQCUMENTS THEMSELVES. AND BRING THEM 

SOMEWHERE OR TAKE THEM ANYWHERE YOU CHOSE OR REPRODUCE THEM? 

A. NO. THE CIRCUMSTANCES OF OUR ACCESS TO THOSE DATA WAS 

STRICTLY LIMITED TO THE COLLECTION OF DATA ON THE PREMISES, THE 

ENCODING OF THE INSTRUMENTS, AND THE USE OF THEM STRICTLY IN 

ANALYSIS RELATED TO OUR RESEARCH. 

@. COULD YOU DESCRIBE TO THE COURT BEYOND THE ANALYSES WHICH 

YOU HAVE TESTIFIED TO TODAY. THE VOLUME OF ANALYSES THAT ARE 

REFLECTED IN THAT FINAL REPORT? 

A. THE FINAL REPORT REFLECTS A SUBSTANTIAL AMOUNT OF ANALYSIS 

WHICH HAS BEEN ONGDING FOR APPROXIMATELY ONE YEAR. AND ACTUALLY   MORE THAM A YEAR. AND I HAVE CONDUCTED AN EXTENSIVE AMOUNT OF 

ANALYSIS, WHICH IS DISTILLED INTO THIS REPORT. 

@. WE’VE PUT IN SOME, I THINK, FORTY-FIVE OR SQ GRAPHS OR 

FIGURES AND TABLES. ARE THERE ADDITIONAL GRAPHS AND FIGURES AND 

TABLES IN YOUR FINAL REPORT BEYOND THAT? 

A. YES, THERE ARE A SUBSTANTIAL NUMBER PLUS A SUBSTANTIAL BODY     
  

  
  

 



        

  

  

1012 

BALDUS ~ DIRECT 

1 OF TEXT WHICH DESCRIBES THE METHODOLOGY AND THE CONCLUSIONS IN 

2 FULLER DETAIL THAN I HAVE PRESENTED HERE. 

3 @. AND DO YOU RELY ON THOSE ADDITIONAL TABLES AND FIGURES AND 

4 GRAPHS WITH THE METHODOLOGY AS SET FORTH IN PART AS A BASIS FOR 

3 THE EXPERT OPINIONS THAT YOU’VE DELIVERED? 

® Fr ow 
7 R. IN THIS COURT? 

8 A. YES. 

RJ
 @. HAVE ALL YOUR UNDERLYING RECORDS FROM WHICH THIS REPORT WAS 

10 MADE, YOUR DATA PRINTOUTS, AND COMPUTER ITEMS AND SO FORTH. BEEN 

11 MADE AVAILABLE FOR INSPECTION AND COPYING BY THE STATE? 

12 A. YES. 

13 2. WHEN? 

i4 A. IN». IN LATE JUNE OR EARLY JULY OF THIS YEAR. I DON’T RECALL 

15 THE EXACT DATE. 

16 @. AND ARE YOU WILLING TO, NOW TO PRODUCE YOUR RECORDS IF 

17 REQUESTED BY THE STATE OR BY THE COURT? 

13 A. YES. 

w 1% MR. BOGER: EXCUSE ME, ONE MINUTE, YOUR HONOR. 

20 BY MR. BOCER: 

21 R. 1S THERE ANY PRACTICAL WAY BY WHICH YOU COULD BRING ALL 

22 THOSE INTO THIS COURTROOM AND TESTIFY AS TO THEM WITHOUT THE USE 

23 OF A REPORT IN ANY REASONABLE PERIOD OF TIME, AND I AM TALKING 

24 NOW ABOUT A PERIOD LIKE A WEEK OR TWO? 

23 A. NO, NOT THAT I KNOW OF,       
 



  

  

  
  

  

1013 

BALDUS -~ DIRECT 

1 MR. BOBER: YOUR HONOR, AT THIS POINT, I BELIEVE WE 
| 

<2 WOULD MOVE THE ADMISSION INTO EVIDENCE OF PROFESSOR BALDUSC 

3 FINAL REPORT. INCLUDING A FULTON COUNTY REPORT AND THE 

4 APPENDICES, AND AS I HAVE INDICATED, MR. FORD WOULD ADDRESS ANY 

3 LEGAL QUESTIONS THAT MIGHT ARISE ON THIS MATTER. 

Ri & THE COURT: I WOULD LIKE TO SEE ONE BEFORE THE ARGUMENT 

7 BEGINS. 

8 MR. BOGER: I HAVE ONE AVAILABLE FOR THE COURT. 

? THIS IS THE REPORT ITSELF. 

10 THESE ARE THE APPENDICES. 

11 COULD WE MARK THESE FOR IDENTIFICATION AS DB-113, YOUR 

12 HONOR? 

13 THE COURT: ALL RIGHT. 

14 MR. BOGER: PERHAPS DB-113A AND -B, SINCE THERE ARE TWO 

15 VOLUMES. 

14 THE COURT: ALL RIGHT, MR. FORD. 

17 MR. FORD: THANK YOU, YOUR HONOR. 

13 AT THE OUTSET I WOULD LIKE TO MAKE IT CLEAR WHAT OUR 

w 17 PROFFER 1S HERE. 

20 THE REPORT IS AN EXTENSIVE DISCUSSION OF THE STUDY AND 

21 ANALYSIS AND SUMMARY OF PROFESSOR BALDUS” FINDINGS, CONCLUSIONS. 

22 METHODS, AND THEIR BASIS. 

23 | WE OFFER IT AS SUCH. AND AS SUCH, I THINK THE COURT 

24 HAS ADMITTED MANY DOCUMENTS THAT ARE ULTIMATELY CONTAINED IN IT 

23 ALONG THE WAY THROUGH HIS TESTIMONY.       
  
    

 



  

  

  

1014 

BALDUS - DIRECT 

1 WE ALSO OFFER IT AS SUBSTANTIVE EVIDENCE OF THE FACTS 

2 ASSERTED THEREIN. THE FACTS OF THE CASES, THE ACTUAL FACTS OF 

3 THE CASES CONTAINED IN THE STUDY: THE ACTUAL FACTS KNOWN OR 

4 BELIEVED BY THE DECISION MAKERS IN THOSE CASES: THE FACTS OR THE 

3 CONTENTS OF THE OFFICIAL RECORDS FROM WHICH THE STUDY DATA WERE 

& DERIVEDS AND THE FACTS, AS WELL AS THE FACTS CONSIDERED AND 

7 ANALYZED BY PROFESSOR BALDUS IN REACHING HIS FINDINGS AND HIS 

8 CONCLUSIONS. 

2 NOW, OF COURSE, ON NONE OF THESE SCORES IS THIS 

10 EVIDENCE, LIKE ANY OTHER EVIDENCE, CONCLUSIVE. AND LIKE ANY 

31 OTHER EVIDENCE, ITS WEIGHT WITH REGARD TO ANY OF THESE QUESTIONS 

12 IS SUBJECT TO THE COURT’S ULTIMATE CONSIDERATION OF ITS 

13 CREDIBILITY, THE METHODS BY WHICH IT WAS OBTAINED AND ALL THE 

14 MATTERS THE COURT HAS HEARD THAT RELATE TO THOSE IN EACH AREA. 

15 ALSO, I THINK THE LEGAL SIGNIFICANCE OF EACH LEVEL OF 

16 THOSE FACTS. AND THE FACTS RELATED IN THE REPORTS, IS A MATTER 

$7 OF COURSE FOR THE COURTS ULTIMATE DETERMINATION WHEN IT REACHES 

13 ITS CONCLUSIONS AS TO THE LAW GOVERNING THIS CASE. 

A 12 BUT WE BELIEVE THAT ITS IMPORTANT THAT THE RECORD 

20 REFLECT THAT THESE DATA ARE PROPERLY BEFORE THE COURT FOR ITS 

21 CONSIDERATION IN ALL THOSE REGARDS. INSOFAR AS IT FINDS THEM 

22 CREDITABLE AND SUBSTANTIVE AND PERSUASIVE. 

23 NOW BEFORE I TURN TO THE RULES OF EVIDENCE WHICH 

24 OBVIOUSLY ARE GOING TO GOVERN THIS QUESTION AS TO WHETHER THESE 

29 ARE ADMISSIBLE, THERE ARE A COUPLE OF PRACTICAL CONCERNS.             
 



  

  

  

  

1015 

BALDUS - DIRECT 

1 CERTAINLY INSOFAR AS IT REFLECTS PROFESSOR BALDUS” 

<2 ANALYSIS, THERE IS A MATTER OF CONVENIENCE. THIS REPORT DOES 

3 SUMMARIZE AND MAY BE MUCH MORE AVAILABLE TO THE COURT AS IT 

CONSIDERS THIS CASE THAN WOULD BE THE TRANSCRIBED RECORD OR 

PERHAPS UNTRANSCRIBED RECORD. 

THERE ALSO, FRANKLY, IS A CONSIDERATION OF 

4 

bo 

5 

J COMPLETENESS. THE COURTS INDICATED THAT IT HAS A CONCERN THAT 

8 THIS RECORD BE DEFINITIVE OF AT LEAST WHAT IS KNOWN AT THIS 

POINT, WHICH WE BELIEVE IS A STATE OF THE ART DETERMINATION OF 

0 THESE QUESTIONS. 

1! CERTAINLY THAT IS OUR CONCERN, THAT THROUGH THE 

12 COMPLEXITY OF THIS, THROUGH THE LIMITATIONS OF TIME TO COVER 

13 SOMETHING THIS MASSIVE, WE HAVEN’T LOST SOMETHING. 

14 THERE ALSO IS SIMPLY THE PRACTICAL FACT IF WE WERE TO 

13 GO BACK AND SIMPLY ASK PROFESSOR BALDUS TO RE-REVIEW EVERY 

16 SINGLE FACT THAT CONTRIBUTES AND GET IT SUBSTANTIVELY IN, IT 

17 WOULD SIMPLY BE IMPOSSIBLE. 

18 NOW THERE ARE RULES OF EVIDENCE IN THE FEDERAL RULES, 

. | 1? AND WE“VE DONE SOME STUDYING SINCE THE COURT POINTED QUT THAT 

| 20 THERE IS A DIFFERENCE BETWEEN A MATTER BEING CONSIDERED BY AN 

21 EXPERT AND A MATTER BEING IN EVIDENCE, THERE ARE SPECIFIC RULES 

22 OF EVIDENCE WHICH I BELIEVE ADDRESS THE LEGAL QUESTIONS THAT 

23 CONTROL ON EACH ONE OF THESE SCORES. AND I THINK THE RECORD IS 

24 ABSOLUTELY CLEAR THAT SUBJECT TO THE DETERMINATIONS OF WEIGHT. 

23 SUBJECT TD FINAL CONSIDERATION OF RELEVANCE. FOR THE. OF EACH       
  

    

 



  
  

  

  

  

1016 

BALDUS - DIRECT 

1 AND EVERY FACT ANWYAY, THESE ARE ADMISSIBLE EVIDENCE. 

  Ps NOW TO START, 1 BELIEVE ITYS IMPORTANT, BECAUSE AT THE 

3 FIRST LEVEL WERE TALKING ABOUT THE DIFFERENCE BETWEEN THE 

4 ACTUAL FACTS, THE FACTS KNOWN BY THE DECISION MAKERS, AND THE 

or’ FACTS REFLECTED IN THE OFFICIAL RECORDS, I THINK IT’S IMPORTANT 

8 & TO BEGIN WITH RULE OF EVIDENCE 803(8). 

7 AND I PROFFER TO THE COURT AT THIS TIME, AND ASK THE 

COURT TO TAKE JUDICIAL NOTICE OF GEORGIA STATUTE SECTION 77-012 

G
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 0
 

REGARDING THE OBTAINING OF INFORMATION BY THE GEORGIA DEPARTMENT 

10 OF PARDONS AND PAROLES RELATIVE TO THESE CASES. I THINK IT’S 

11 HIGHLY SIGNIFICANT ON THIS QUESTION. COULD I --— 

12 THE COURT: WHAT DOES IT SAY? 

13 MR. FORD: IT SAYS, YOUR HONOR. THAT IT IS THE DUTY OF 

14 |THE ROARD TO OBTAIN AND PLACE IN ITS PERMANENT RECORDS 

135 INFORMATION AS COMPLETE AS MAY BE PRACTICABLE ON EVERY PERSON 

14 WHO MAY BECOME SUBJECT TO ANY RELIEF WHICH MAY BE WITHIN THE 

17 POWER OF THE BOARD TO GRANT. | 

12 THE COURT: LETS CUT THROUGH ALL THIS MR. FORD. 

W 19 THIS IS AN OUT-OF-COURT STATEMENT OFFERED TO FROVE THE 

20 TRUTH OF THE MATTERS ASSERTED THEREIN. 

<1 "EVEN IF I GIVE YOU RELEVANCY AS TO THE ENTIRETY OF IT, 

22 WHICH FOR THE PURPOSES OF THESE ANALYSES. 1 WILL DO, YOU HAVE 

23 NOTED A LOT OF THE REASONS, POLICY REASONS THAT WOULD MILITATE 

24 TOWARD MY LETTING IT IN, AND I“M SURE THE STATE“S GOT SOME OF 

23 ITS OWN, AND SO DO I HAVE SOME POLICY REASONS FOR GOING THE         
  

 



    

  

  

1017 

BALDUS - DIRECT 

1 OTHER WAY. 

BUT LET ME SEE IF YOU HAVE THOUGHT OF HOW THIS REALLY § 

3 BECOMES ADMISSIBLE, ASSUMING ITS RELEVANCY. 

4 MR. FORD: IF I CAN JUMP AHEAD, THE COURT S ASKED ME TO 

JUMP AHEAD FROM THE OFFICIAL RECORDS QUESTION. 4]
 

WITH REGARD TO THE SUMMARY ITSELF, I THINK THE 
& . 

PRINCIPLE, THERE“S 3 BASIC RULES THAT I THINK APPLY HERE -- 

WELL, THERE‘S TWO THAT APPLY TO THE SUMMARY. 

g
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ONE IS RULE OF EVIDENCE 1004, THE OTHER IS RULE OF 

10 EVIDENCE 10046. I THINK THEY BOTH ADDRESS EXACTLY THIS QUESTION, 

11 AND =~ 

12 THE COURT: SUMMARIES? 

13 MR. FORD: ONE IS ON ADMISSIBILITY OF QTHER EVIDENCE OF 

14 THE CONTENTS OF A WRITING. THAT IS IN SPECIFICALLY RULE 1004(3) 

1% WHICH DEALS WITH EVIDENCE OF THE CONTENTS OF WRITINGS THAT ARE 

16 IN THE POSSESSION OF THE PARTY AGAINST WHOM IT IS OFFERED. WHEN 

17 THE PARTY HAS BEEN PUT ON NOTICE THAT THE CONTENTS CF THOSE 

18 RECORDS WOULD BE THE SUBJECT OF PROOF AT A HEARING, AND THE 

K's 1? OTHER PARTY DOES NOT PRODUCE THE ORIGINALS AT THE HEARING. 

20 | THE SECOND IS RULE 1006, WHICH DEALS WITH THE CONTENTS 

21 OF VOLUMINOUS WRITINGS AND RECORDINGS WHICH CANNCOT BE 

22 CONVENIENTLY EXAMINED IN COURT. AND WHICH MAY THEREFORE BE 

23 PRESENTED, I‘M NOT READING EXACTLY, I“M PARAPHRASING. IN THE 

24 FORM OF A CHART SUMMARY OR CALCULATION, WHERE THE ORIGINALS ARE 

235 MADE AVAILABLE AND THE COURT MAY ORDER THEM PRODUCED IN COURT IF           
 



  

  

  

  

  

1013 

BALDUS - DIRECT 
Fe

y IT WISHES. 

rn
 I BELIEVE THAT THOSE ARE THE CONTROLLING LAW. THERE IS 

| 
'A FIFTH CIRCUIT CASE ~-— 

THE COURT: LET ME TELL YOU WHERE YOU’VE CONTROLLED 

YOURS TO. 1 MIGHT VERY WELL SAY, OKAY, THAT’S FINE, COUNSEL. 

$ STRIP THIS DOCUMENT OF EVERY PARTICLE OF ANALYSIS AND THEN I 

WILL CONSIDER IT UNDER THOSE TWO. 

lod DOESN’T GET THE ACCOMPANYING, NEITHER ONE OF THOSE GET 

|THE ACCOMPANYING ANALYSIS INTO EVIDENCE. 

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 MR. FORD: IT SEEMS TO ME. YOUR HONOR, THAT THE 

11 ANALYSIS IS AGAIN. WELL, ANALYSIS, I THINK WOULD CONCLUDE ALL 

i2 THE RUNS THAT PROFESSOR BALDUS HAS MADE AND ALL THE -—— 

13 THE COURT: ASSUMING FOR THE SAKE OF ARGUMENT THAT ANY 

14 NUMBER IN THAT BOOK IS ADMISSIBLE UNDER SOME THEORY OF EITHER 

13 1004 OR 1004. THAT DOESN‘T GET THE EXTENSIVE, THAT'S WHY I 

ié6 WANTED TO LOOK AT A COPY OF IT, THE EXTENSIVE TESTIMONIAL 

17 ANALYSIS INTO EVIDENCE, 

13 MR. FORD: THERE ARE, 1 GUESS MY QUESTION THERE WOULD 

w 1? BE WHETHER THERE’S ANY OBJECTION ON THAT GROUND, BECAUSE IT | 

20 SEEMS TO ME THAT THAT KIND OF PURPOSE HAS BEEN, FOR THAT KIND OF 

<1 PURPOSE, MUCH OF THIS HAS BEEN ADMITTED FOR PURPOSE OF 

22 REFLECTING THOUGHT PROCESSES AND ANALYSIS, IT HAS BEEN ADMITTED. 

rac AND EVEN MUCH OF IT WITHOUT OBJECTION, FOR THAT PURPOSE. 

24 THE COURT: TALKING ABOUT NUMBERS. 

25 MR. FORD: THE NUMBERS SEEM TO ME TO BE THE HARD       
  

 



  

    

    

  

  
  

  

1012 

BALDUS - DIRECT 

1 QUESTION YOUR HONOR, THE QUESTION THE COURT'S NOT YET REACHED. 

2 THE COURT: NO, WHAT 1 HAVE BEEN LETTING IN IS NUMBERS 

3 AS THEY REFLECT PROCESS. AND I HAVE LET SOME OF IT IN. 

4 BUT LET ME TELL YOU FRANKLY WHAT MY DUAL CONCERNS ARE. 

= AND THEY ARE THE OTHER SIDE HAS TWO ADVANTAGES THAT YOU HAVE 

b POINTED QUT. 

7 - AFTER I HAVE HEARD WHAT I HAVE HEARD THIS AFTERNOON, I 

3 AM AT A POINT WHERE I REALIZE I HAD STARTED ON A LABOR OF LOVE 

2 FRANKLY FOR YOU IN THIS CASE, AND I REALIZE THAT MY LABOR HAS 

0 BEEN MORE LOVING THAN 1 THOUGHT. 

11 WE MAY BE A LONG WAY AWAY FROM YOUR DEMONSTRATING UNDER 

12 THE TESTS IN THIS CIRCUIT ANY STATISTICAL EVIDENCE THAT MIGHT 

13 GET YOU A GRANT OF WRIT OF HABEAS CORPUS FOR MCCLESKEY., BECAUSE 

14 A LOT OF GOOD RESEARCH HAS GONE ON IN THIS AREA, AND DOCTOR 

13 BALDUS IS OBVIOUSLY A WELL RUALIFIED PERSON, I HAVE TRIED TO LET 

14 YOU MAKE A FULL RECORD FOR EVERY PURPOSE. NOT JUST FOR THE 

17 PURPOSES OF THIS CIRCUIT. BUT FOR EVERY PURPOSE. 

18 THAT RECORD OUGHT TO BE A LAWYER‘S RECORD, NOT AN 

Ww 1? ACADEMICIAN’S RECORD. THE PERSON THAT REVIEWS THIS RECORD OUGHT 

20 TO HAVE TO REVIEW THAT TRANSCRIPT OF WHAT THIS MAN SAID UNDER 

21 OATH IN OPEN COURT, SUBJECT TO CROSS-EXAMINATION. 

22 | NOW, THERE ARE A BUNCH OF REASONS FOR THAT. THE UNDER 

23 0aTH, I THINK, IS OBVIOUS. THE WAY HE TESTIFIED IS WHAT HE IS 

24 THINKING WHERE HE IS NOW. IT IS HIS THOUGHT. 

25 IT IS THE STRONG NOTICE TO COUNSEL OF WHAT THE ISSUE IN       
  

    

 



  

  

  

| 1020 

BALIWIS - DIRECT 

THE CASE IS. 

WHAT YOURE ASKING ME TO DO IS TO LET THIS IN AS A 

SAFETY NET FOR THINGS YOU-VE MISSED. 

THE OTHER SIDE OF THE COIN IS THAT IF WE DON‘T LITIGATE 

THAT ISSUE AS TO ESSENTIALLY ORAL TESTIMONY IN THIS COURT. 

COUNSEL HASNT HAD NOTICE OF WHAT ISSUE MIGHT BE LURKING IN 

THERE THAT BECAUSE IT DIDN'T COME OUT IN OFEN COURT, SHE DIDNT 

HEAR THE WITNESS TESTIFY TO IT. AND SHE DOESN‘T KNOW WHETHER 

IT’S THERE OR NOT. 

HAVING GLANCED OVER THIS, I THINK I WILL PUT THIS 

ARGUMENT TO A QUICK END BY TELLING YOU THAT I AM NOT GOING TO 

ADMIT IT. I WILL ALLOW YOU TO PROFFER IT, SUBJECT TO THE 

CONDITIONS THAT YOU PREVIOUSLY PROFFERED IT. 1 AM GOING TO SEAL 

IT. AND I PRAY TO GOD THAT NO LAWYER THAT HAS TO LOOK AT THIS 

RECORD OR EVER OPENS IT, BECAUSE I THINK -— I UNDERSTAND WHY 

YOURE DOING IT, AND IF I WERE IN YOUR SHOES I WOULD GO DO THE 

SAME THING. SO I“M NOT BEING CRITICAL OF YOU AS A LAWYER. BUT 

1 CANT IMAGINE A MORE SERIOUS INTERVENTION TO THE WEIGHING AND 

EVALUATING OF EVIDENCE THAN TO BASICALLY SUBSTITUTE A HEARSAY 

STATEMENT FOR TESTIMONY UNDER OATH SUBJECT TO CRNSS-EXAMINAT ION 

THAN TO ALLOW A BOOK LENGTH SUMMARY OF THE WITNESS” TESTIMONY 

IN. 

AND IT IS FOR THOSE ESSENTIAL POLICY REASONS I WILL NOT 

LET IT IN BEYOND THE FACT THAT IT IS NOT ADMISSIBLE AS A HEARSAY 

STATEMENT, AND THATS THE PRINCIPAL PURPOSE DF 17.         
  

 



  

20 

        
  

  

    

  

1021 

BALDUS ~ DIRECT 

IF THERE ARE SOME SUMMARIES OF RECORDS AND DOCUMENTS 

THAT YOU WANT IN, I THINK I HAVE BEEN LETTING A LOT OF THOSE IN. 

TO THE EXTENT THAT THERE®S AN ANALYSIS IN THERE THAT 

DEMONSTRATES ANY FACT OF CONSEQUENCE IN THE CASE, 1 HAVE BEEN 

LETTING THOSE IN. SO I DON’T THINK YOU ARE AT ALL DISADVANTAGED 

BY ME NOT LETTING YOUR RAW DATA OR YOUR SUMMARIES OF YOUR RAW 

DATA OR IN SOME CASES. WHERE SOME SOPHISTICATED ANALYSIS, 

SOMETHING BEYOND JUST PLAIN OLD HIGH SCHOOL. ALGEBRA. OR, I DON'T 

EVEN KNOW WHETHER IT WOULD BE HIGH SCHOOL ALGEBRA. KIND OF 

BEYOND THE BOWERS-PIERCE LEVEL, WHERE SOMETHING HAS BEEN DONE TO 

SUGGEST THAT THIS IS MORE THAN JUST A PURE NUMBERS GAME. I HAVE 

LET THOSE IN TO PROVE THE PROOF OF THE MATTERS ASSERTED THEREIN. 

SO TO THE EXTENT THAT YOU HAVE BURDENS WITH DATA. 

EITHER IN TERMS OF GETTING IN THE UNDERLYING THING, I“LL BE GLAD 

TO HEAR FROM YOU ABOUT YOUR CONCERNS. TO THE EXTENT YOURE 

HAVING TROUBLE GETTING IN ANALYSIS. AS IT BEARS ON THE ISSUE, 

ILL BE GLAD TG DISCUSS THOSE THINGS WITH YOU. IN OTHER WORDS, 

AS TO NUMBERS. AND NUMBERS THAT RESULT FROM ANALYSIS, THATS ONE 

THING. BUT THAT TESTIMONY OR EVIDENCE IS IN NO FASHION GOING 

INTO THIS RECORD. 

MR. FORD: MAY I THEN ADDRESS A SOMEWHAT DIFFERENT 

SUBJECT, THIS MAY BE KIND OF THE FLIP SIDE OF THIS. 

AND IN MY, WHAT, THE LAST FEW DAYS, A NUMBER OF ITEMS 

HAVE COME INTO EVIDENCE FOR LIMITED PURPOSES. THERES BEEN A 

NUMBER OF OBJECTIONS MADE WHICH I“VE NOT CLEARLY UNDER3TOOD. IM 

  

  

  
  

 



    
rr ———————— ————— 

  

  

1022 

BALDUS ~ DIRECT 

1 NOT SURE THE COURTS CLEARLY UNDERSTOOD. THEY “VE NOT BEEN 

2 hl sh ON ANY RULE OF EVIDENCE, AND THE COURT HAS AT TIMES 

LIMITED CERTAIN THINGS TO AN EVIDENTIARY, DIFFERENT EVIDENTIARY 

RULES. AND DOCTOR BALDUS HAS ALSO SPOKEN ORALLY OF CERTAIN 

NUMBERS BUT NOT OTHERS. 

3 

4 

5 

ks 6 WOULD THE COURT, 1 UNDERSTAND THE COURT’S RULING WITH 

7 REGARD TO THE REPORT ITS, S0 THAT WE COULD MAKE A DECISION AT 

3 THIS POINT: WITH REGARD TO ANY HEARSAY-TYPE OBJECTIONS, 

9 PROCEDURAL~-TYFE OBJECTIONS, AND OF COURSE RESERVING THE ULTIMATE 

10 QUESTION OF RELEVANCY AND WEIGHT. WOULD THE COURT ADMIT 

11 SUBSTANTIVELY THE NUMBERS, THE DATA, THE FACTS THAT PROFESSOR 

12 BALDUS HAS SPOKEN OF, AND THAT ARE CONTAINED IN THE EXHIBITS 

13 ‘WHICH HAVE BEEN ADMITTED, FOR SOME PURPOSE? 

14 | THE COURT: IF YOURE TALKING ABOUT RAW DATA: THAT MAY 

15 BE ONE THING. IF YOUYRE TALKING ABOUT ANALYSIS, THAT MAY BE 

16 ANOTHER THING. AND I WILL HAVE TO SIT DOWN AND SEE WHAT YOUR 

17 SPECIFIC CONCERNS ARE. 

12 NOW, LET ME CLEAN UP THE RECORD. 

w 12 AN AWFUL LOT OF WHAT WE-“VE BEEN DOING HERE I5 TO 

20 DEMONSTRATE THAT THIS IS AN INTELLECTUALLY HONEST UNDERTAKING, 

21 AND LOT OF THE BUILDUP A3 MR. BOGER HAS PRESENTED IT TO ME, HAS 

22 TAKEN ME STEP BY STEP. THE ACADEMICIAN, LOOKING AT SOME 

<3 FIGURES, SAYING WHAT DOES THIS SUGGEST. AND THEN IF I LOOK AT 

24 HIS TESTIMONY, AND HE HAS TESTIFIED. I1°VE NOTICED THIS. BECAUSE 

23 I HAD TO JUDGE THE BOWERS-PIERCE TESTIMONY, HE“S TESTIFIED ANY     
  

 



  

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10 

11 

  

  

  

  
  

| 1023 
BALDUS - DIRECT 

NUMBER OF TIMES IN THIS HEARING THAT BASED ON THESE EARLY PIECES 

OF ANALYSIS, HE WOULD NOT GIVE AN EXPERT OPINION THAT THIS WAS   
HAPPENING. 

| WHAT I“M SAYING IS, THAT DOESN‘T PROVE, THAT EARLY 

ANALYSIS. THAT RAW FIGURE, GEE WHIZ, THERE'S A DISPARITY SORT OF 

STUFF. YOUR OWN WITNESS HAS SAID DOESN‘T REALLY PROVE IT, USING 

THE BEST TECHNIQUES OF EITHER STATISTICS OR SOCIAL SCIENCE. 

THEREFORE, IT DOESN’T A MAKE A FACT CONSEQUENCE MORE OR 

LESS LIKELY IN THIS CASE, AND IT’S IRRELEVANT. 

NOW, 1 DON’T KNOW WHAT RAW DATA YOU/RE TRYING TO GET 

IN. BUT IF YOU WILL SHOW ME WHAT RAW DATA YOU NEED IN THE 

RECORD, ILL BE GLAD TO LET YOU PRESENT IT IN A CONVENIENT 

SUMMARY FASHION. BUT I AM NOT GOING TO LET YOU PUT INTO THE 

RECORD UNDER THAT GUISE ANALYSIS THAT COULD BE MISINTERPRETED BY 

ANYONE IN OR OUT OF THE JUDICIAL SYSTEM. 

MR. FORD: YOUR HONOR. PERHAPS IF I COULD JUST SPEAK 

AGAIN TO LET YOUR HONOR KNOW THE CONCERNS WE HAVE. 

MY DOUBT IS. I THINK THE COURT’S BEEN VERY CLEAR ON THE 

RELEVANCE RULINGS AND I‘M NOT MEANING TO ARGUE THOSE AGAIN, I 

THINK WE‘VE MADE OUR POSITION CLEAR AND THE COURT/S MADE ITS 

POSITION CLEAR ON THAT ISSUE. 

BUT WITH REGARD TO WHAT NUMBERS ARE HERE AS REFLECTING 

A REAL WORLD, A REAL STATE. AND A REAL DECISION MAKER, WITH 

WHATEVER SIGNIFICANCE THE COURT FINDS THEY HAVE, GIVEN THE 

MANNER IN WHICH THEY WERE GATHERED, I“M NOT SURE WHAT S IN AND     
  

      
  

 



  

  

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1 1 
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10 

33 

  
  

  

1024 

BALDUS - DIRECT 

WHATS OUT, OF PROFESSOR BALDUS- TESTIMONY. AND OF THESE 

EXHIBITS. AND WHAT IM AFRAID OF, IF THE COURT HAS MADE 

RULINGS ON ONE EXHIBIT IN WHICH PROFESSOR BALDUS READ FOUR 

NUMBERS WHICH WERE NOT OBJECTED TO. BUT THE COURT THEN SAID THIS 

IS IN FOR ANALYSIS ONLY, BUT NOT FOR FACTS, AS I UNDERSTAND THE 

LAW, COUNSEL CAN THEN MAKE ANY EVIDENTIARY OBJECTION THEY WANT 

ON APPEAL TO SUPPORT YOUR HONORS RULING IF THAT’S EXCLUDED. AND 

WERE GOING TO END UP WITH A FACTUAL RECORD THAT LOOKS LIKE | 

SWISS CHEESE. 

WITH REGARD TO DATA, WHAT I WOULD ASK THE COURT. AT 

LEAST SO WE CAN DETERMINE OUR POSITION. I WOULD ASK THE COURT 

THEN AT THIS TIME, TO, IS THE COURT SAYING THAT THE DATA THAT'S 

DISCUSSED BY PROFESSOR BALDUS AND BY, IN THOSE DOCUMENTS THAT 

THE COURT HAS RULED ARE RELEVANT, IS THAT DATA BEFORE THE COURT 

‘AT THIS TIME, FOR SUBSTANTIVE PURPOSES, TO PROVE THESE ULTIMATE 

FACTS? 

THE COURT: I THINK THE ANSWER IZ NO. BUT I HAVENT 

THOUGHT THAT THROUGH. 

I WOULD THINK, MR. FORD, WITHOUT REFLECTING FURTHER, 

THAT TO THE EXTENT THAT I HAVE INTRODUCED THE DOCUMENTS. NOT 

INTRODUCED, ADMITTED THE DOCUMENT FOR PROOF OF THE MATTER 

ASSERTED THEREIN. THAT THE DATA CONTAINED IN THAT DOCUMENT IS IN 

THE RECORD. IT IS IN EVIDENCE AND ONE MAY ARGUE WITH IT AS ONE 

SEES FIT. 

TO THE EXTENT THAT IT IS A SUMMARY OF A VOLUMINOUS     
  

 



  

  

Ww
 

0
s
 

  
  

  

  
  

BALDUS - DIRECT 

RECORD, WRITING OR RECORDING, THEN EVERY PIECE OF DATA WRITTEN 

DOWN ON IT AND THE FAIR INFERENCES FROM IT ARE IN EVIDENCE. 

TO THE EXTENT THAT I HAVE EXCLUDED ANY DF THESE THAT 

DID NOT CONTAIN SOPHISTICATED ANALYSIS OR THE ANALYSIS IS NOT IN 

EVIDENCE. THE DOCUMENT IS NOT IN EVIDENCE. I HAVE ORDERED THOSE 

DOCUMENTS WHICH I HAVE EXCLUDED SEALED. THE DOCUMENT IS ONLY IN 

TO SHOW PROCESS, NOT TO SHOW FACTS. 

IM JUST NOT SURE OF WHAT PIECE OF DATA YOU WANT IN THE 

RECORD THAT IS NOT IN THE RECORD. 

MR. FORD: YOUR HONOR, ILL HAVE TO BE FRANK. I“VE 

NEVER BEEN IN A SITUATION BEFORE IN COURT IN WHICH DOCUMENTS ARE 

MARKED ADMITTED, BUT THEY“RE NOT ADMITTED FOR PURPOSES OF FACTS 

ASSERTED. EXCEPT BEFORE A JURY, WHERE THE INSTRUCTIONS MAKE 

CLEAR WHAT IS IN FOR WHAT PURPOSES. AND THAT'S WHY I THINK 

NE-“RE we 

THE COURT: HAVING HEARD THE WHOLE THING, MR. FORD.» IF 

YOU WISH TO PRESS IT, I WOULD BE GLAD NOW, SINCE I HAVE HEARD 

THE TESTIMONY. AND SINCE I NO LONGER NEED THE EXHIBIT, TO TELL 

YOU THAT I NO LONGER NEED THOSE THAT I HAVE ADMITTED FOR 

PROCESS, AND WILL BE GLAD TO EXCLUDE THEM ALL, AND THEN THERE 

WON“T BE ANY CONFUSION. 1 WAS TRYING TO BE GENEROUS WITH THOSE 

RULINGS, AND YOURE TRYING TO MOUSETRAP ME WITH THEM. 

I DONT NEED THEM. I UNDERSTAND NOW WHAT HE HAS DONE, 

AND UNDERSTANDING WHERE WE ARE NOW, I DON’T NEED THEM. 

THEY ARE A BURDEN ON THE RECORD AND IF THEY ARE A       
  

  

 



  
  

  

  

1026 

BALDUS - DIRECT 

1 BURDEN TO YOU I WILL EXCLUDE THEM.   2 MR. FORD: THE ONLY BURDEN IM ASKING RELIEF FROM IS, I 

THINK I“M GETTING RELIEF FROM. IS UNCLARITY. IF I UNDERSTAND 

CORRECTLY, THEN, PROFESSOR BALDUS” TESTIMONY INSOFAR AS ITS 

BEEN ADMITTED WITHOUT OBJECTION WITH REGARD TO DATA IS BEFORE 

3 

4 

5 

& & THE COURT SUBSTANTIVEVLY, AND THOSE DOCUMENTS THAT HAVE BEEN 

7 ADMITTED SUBSTANTIVELY ARE BEFORE THE COURT SUBSTANTIVELY, AND 

3 OTHER THINGS ARE NOT. IS THAT A CORRECT UNDERSTANDING OF THE 

E COURTS RULING AT THIS POINT? 

10 THE COURT: I THINK IT WOULD FOLLOW, MR. FORD, THAT IF 

11 I SAID THAT THE ANALYSIS AND THE DOCUMENT IS NOT RELEVANT, THAT 

| 

12 TESTIMONY. READING THE DOCUMENT IS LIKEWISE NOT RELEVANT.   13 NOW, WE’RE TRYING THIS CASE NONJURY., AND WHAT I THINK I 

14 HAVE DONE IS TO LET YOU PUT IN THE DOCUMENTS THAT DRAW THE 

13 (CONCLUSIONS, BASED ON MORE SOPHISTICATED SOCIAL SCIENCE AND 

14 STATISTICAL TECHNIQUES. THOSE ARE IN EVIDENCE TO SHOW WHAT THEY 

17 SHOW. 

i3 1 DON’T UNDERSTAND THE STATE TO HAVE SERIOUSLY OBJECTED 

Ww 19 THAT THEY MISREPRESENT THE STATE OF THE DATA ON WHICH THEY ARE 

20 COMPILED. IF THEY DQ. THEN YOU‘VE COT A REBUTTAL CASE WHEN YOU 

<1 CAN DO SOMETHING ABOUT IT. 

22 I DON’T UNDERSTAND THE PROBLEM. AND YOU MAY NOT BE 

23 TELLING IT, YOU MAY EITHER BE TRYING TO GET SOMETHING IN THE 

24 RECORD FOR ANOTHER PURPOSE THROUGH THIS GUISE OR YOU MAY BE 

22% WORRYING ABOUT HAVING SOMETHING IN THE RECORD AND YOURE NOT           
——— c—— — i ———— ————  S—————— —————— ———— A————  ————p———  ——— —————h  ———————— — —— ——  —    



      

  

  

9S
 
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1027 

BALDUS - DIRECT 

TELLING ME THE REASON WHY YOUYRE WORRIED. BUT I DONT 

UNDERSTAND THE PROBLEM. 

MR. FORD: IM NOT, I“M HONESTLY NOT TRYING TQ DO, I 

CAN TELL THE COURT FRANKLY, I, MY MAIN CONCERN RIGHT NOW. I 

THINK THE COURT'S HEARD PROFESSOR BALDUS‘ ANALYSIS. I'M NOT 

CONCERNED IN ANY OF THESE REGARDS AT THIS POINT ABOUT HAVING, 

ABOUT THAT QUESTION. I BELIEVE THAT THAT’S BEFORE THE COURT. 

MY CONCERN IS THAT IN THE APPELLATE COURTS TO WHICH 

THIS CASE 1S LIKELY TO GO WHATEVER HAPPENS, I THINK THE COURT 

HAS ALREADY ACKNOWLEDGED, I HOPE THE RECORD WILL REFLECT THAT 

1 THE COURT HAS A SUBSTANTIVE BASIS FOR FINDING WHATEVER IT FINDS 

WITH REGARD TO THE REALITY OF THE STATE OF CEORGIA DURING THIS 

FERIOD. 

THE COURT: THAT’S ASSUMING THAT THE REALILTY OF THE 

STATE OF GEORGIA IS RELEVANT. 

BUT ASSUMING THAT, MR, BOGER HAS BEEN PRESENT AND YOU 

HAVE NQT BEEN PRESENT, SO YOU'RE NOT AS FAMILIAR WITH THE 

RULINGS. 

I THINK THE LINE I HAVE BASICALLY TRIED TO DRAW IS 

WHERE SOME. SOME DEGREE OF SOPHISTICATION BEYOND JUST APPLYING 

PERCENTAGES TO RAW NUMBERS 1S USED, SOME ADJUSTMENT BASED ON 

SOME PERCEPTIONS OF WHAT GOES ON IN THE CRIMINAL JUSTICE SYSTEM 

BEYOND JUST PERSONS CHARGED AND THINGS FLOW FROM THAT. WHERE ANY 

OF THAT. WHERE ANY DEGREE OF SOPHISTICATION HAS BEEN INVOLVED IN 

TRYING TO ADJUST FOR BACKGROUND FACTORS. I BELIEVE 1 HAVE     
  

  

 



  
  

  

—
 

  

1023 

BALDUS - DIRECT 
po

t ADMITTED EVERY ONE OF THOSE DOCUMENTS. IF I HAVE NOT, I WILL BE 

GLAD TO REVIEW ANY ALONG THOSE LINES THAT I HAVE NOT. 

| WHAT THAT MEANS IS THAT THOSE DOCUMENTS WITH THAT DATA 

IS IN EVIDENCE. 

NOW, THAT DOESN‘T PRECLUDE PROFESSOR BALDUS FROM 

RELYING ON WHATEVER IN THE WORLD HE WANTS TO RELY ON TO EXPRESS 

HIS OPINION. HE CAN RELY ON ANYTHING HE WANTS TO RELY ON TO 

EXPRESS HIS OPINION. 

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BUT THOSE ARE JUDICATIVE FACTS WHICH ARE IN THE RECORD 

—-
 

< CONCERNING WHATEVER DATA IS ON THOSE SHEETS, AND WHATEVER 

Po
s 

fd
s RESULTS COME FROM THE NUMBERS, WHICH MEANS THAT ANYBODY FROM 

12 A JUDGE TO ANOTHER EXPERT CAN PLAY WITH THOSE NUMBERS AND DRAW 

13 CONCLUSIONS. I THINK THAT'S ALL WE'RE DEALING WITH HERE. 

14 MR. FORD: YOUR HONOR, -- 

13 THE COURT: IM NOT SURE THAT YOU NEED ANY OF IT. TELL 

14 ME WHY YOU NEED A SINGLE ONE OF THOSE DOCUMENTS. EXCEPT PERHAPS 

17 TO MAKE THE READER OF THE RECORD SEE IT? 

: 1a MR. FORD: BECAUSE IT SEEMS TO ME, YOUR HONOR, THAT WE 

Eo. 19 HAVE TO PROVE AT SOME LEVEL OF RELIABILITY THAT CERTAIN THINGS 

20 OCCURRED IN THIS STATE DURING THIS PERIOD, AND IN THIS CASE. 

3 AND THOSE DATA ARE THE QUESTIONS I HAVE, AT THIS POINT --— AND 

22 I‘M ADVISED BY MY CO-COUNSEL THAT I“M PERHAPS PRESSING TCO HARD. 

23 BUT ILL BE FRANK WITH THE COURT AND I“M SENSITIVE TO THAT, -— 

29 THE COURT: I APPRECIATE YOUR CANDOR WITH THE COURT. 

23 MR. FORD: LET ME VOICE ONE MORE CONCERN WITH THE       
  

 



  

  

  

  
  

  

BALDUS - DIRECT 

1 COURT. 

¥ I WOULD, COULD THE COURT AT LEAST REQUIRE THE STATE 

3 MAKE ANY EVIDENTIARY OBJECTIONS THAT IT HAS TO THE SUBSTANTIVE 

4 FACTUAL BASIS AND THE SUBSTANTIVE FACTS THAT ARE TESTIFIED TO S50 

5 THAT WE DON’T HAVE A SITUATION WHERE HEARSAY. THOSE KINDS OF 

6 THINGS THAT HAVE NOT BEEN MENTIONED HERE. ARE BROUGHT UP ON 

7 APPEAL AND .THEY’VE NEVER BEEN MENTIONED HERE AND WHEN WE CAN 

3 DEAL WITH THEM HERE, IF THEY’RE REAL PROBLEMS, WHICH WE DON‘T 

9 BELIEVE THEY ARE. WE BELIEVE WE‘VE GOT THERE. 

10 BUT I DON’T WANT TO FIND OUT ON APPEAL THAT THE STATE 

11 TAKES THE POSITION THAT SUPPORTING YOUR HONOR’S RULING BASED ON   12 ANOTHER GROUND, THAT THERE WAS SOME FAILURE OF FOUNDATION THAT 

13 (WE WERE NEVER TOLD ABOUT, AND WHEN I FRANKLY HAVE NOT HEARD THE 

14 STATE MAKE AN EVIDENCE OBJECTION TO THE VAST MAJORITY OF THIS, 

15 THAT 1 UNDERSTAND TO BE AN OBJECTION UNDER THE RULE OF EVIDENCE. 

16 1 BELIEVE THE STATE'S MADE —— 

17 THE COURT: YOU MAY NOT HAVE BEEN IN THE COURTROOM -- 

18 MR. FORD: WELL, =-- 

- 19 THE COURT: -— WHEN MS. WESTMORELAND, WHEN IN DOUBT, 

20 WHATEVER. HAS BECOME HER CONTINUING OBJECTION, AND IF YOU VE   
| 

21 |NEVER HEARD IT, YOU PROBABLY DON’T KNOW WHAT SHE’S BEEN SAYING 

22 [WHEN SHE’S STOOD UP AND OBJECTED WHICH SHE HAS DONE WITH SOME 

23  |REGULARITY. 
| 

24 THAT IS THE MISCHIEF IN LETTING LAWYERS COME AND GO. 

25 SOME OF MY BRETHREN WOULD HAVE FUSSED WITH YOU AND MR. BOGER FOR       
— — ——— —  —— ——  —— - ———  ——— ———————. ——— ————— ———. ——— —— J   — A — ——— AAS tte Aan AA ———-.  



  

  

  

  

1030 

BALDUS - DIRECT 

LEAVING AND LEAVING WITHOUT LEAVE OF THE COURT. I DON’T FUSS, 

  IVE TRIED LAWSUITS AND I“VE DONE EXACTLY WHAT YOU‘VE DONE. BUT 

| 

| THE MISCHIEF IS THAT YOU DON’T HAVE THE FACTUAL PREDICATE ON 

WHICH TO ARGUE THE LAW THAT YOU KNOW, AND MR. BOGER DOESN’T HAVE 

THE LEGAL PREDICATE ON WHICH TO ARGUE THE FACTS THAT HE KNOWS. 

AND THAT PUTS YOU AT SOMEWHAT A DISADVANTAGE. 

IT IS MY INTENT, SHOULD BE CLEAR FROM MY CONVERSATIONS 

WITH MR. BOGER, THAT IF THIS CASE FALLS, IT NOT FALL ON SOME 

SORT OF NIT-PICKY TECHNICAL GROUND. | 

I HAVE INDICATED TQ YOU AND TO MR. BOGER THROUGHOUT 

THAT I DO NOT WISH TO BE TROUBLED WITH UNSOPHISTICATED ACADEMIC 

OPINIONS A LA WHAT I HEARD BEFORE. YOU HAVE BROUGHT ME 

SOMETHING MUCH MORE SUBSTANTIAL THAN THAT. I HAVE TRIED TO LET 

IN THAT MORE SUBSTANTIAL ANALYSIS SO THAT IT IS IN THE RECORD. 

I DON’T KNOW WHAT ELSE YOU WANT IN THE RECORD AND IF 

YOU WILL TELL ME WHAT YOU WANT IN THE RECORD, I WILL BE GLAD TO 

CONSIDER IT ISSUE BY ISSUE. BUT I AM NOT GOING TO LET YOU PUT 

IN MR. FORD’S COUNTERPART TO A SAFETY NET. OKAY? 

MR. FORD: THANK YOU, YOUR HONOR. 

THE COURT: ALL RIGHT. LET“S ADJOURN. 

ARE YOU GOING TQ BE READY? 

YOU“RE THROUGH. RIGHT? 

MR. FORD: YOUR HONOR, -- 

MR. BOGER: I HAVE PERHAPS A HALF HOUR MORE. YOUR 

HONOR.       
  

 



  

  

) 

  

      
  

BALDUS - 

THE 

MR. 

THE 

MR. 

THE 

MS. 

THE 

WESTMORELAND 

DIRECT 

COURT: 

BOGER: 

COURT: 

BOGER? 

COURT: 

  

1031 

HOW MUCH? 

ID SAY HALF HOUR TO FORTY-FIVE MINUTES. 

WELL, ILL LET YOU DO IT MONDAY MORNING. 

ALL RIGHT. 

AND THEN YOU/RE GOING TQ CROSS-EXAMINE? 

WESTMORELAND: YES, YOUR HONOR. 

COURT: ALL RIGHT. LET ME SEE MR. BOGER AND MS. 

IN CHAMBERS, OFF THE RECORD. 

WE-LL BE IN RECESS. 

(COURT ADJOURNED FOR THE DAY.) 

  

  
  

  

   



    

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1032 

BALDUS - DIRECT 

C~E~R=T=1~F=1-C-A-T-E 

UNITED STATES OF AMERICA 

NORTHERN DISTRICT OF GEORGIA 

I, JIM PUGH, OFFICIAL COURT REFORTER OF THE UNITED 

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA. DO 

HEREBY CERTIFY THAT THE FOREGOING [ PAGES CONSTITUTE A TRUE 

TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE SAID COURT HELD IN THE 

CITY OF ATLANTA, GEORGIA. IN THE MATTER THEREIN STATED. 

IN TESTIMONY WHEREOF 1 HAVE HEREUNTO SET MY 

HAND ON THIS [ DAY OF € 

  

JIM PUGH 
OFFICIAL COURT REPORTER 
NORTHERN DISTRICT OF CEORGIA

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