SCOTUS, No. 84-6811 - Social Science Amicus Brief Vol. 2 of 2 (Redacted)

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SCOTUS, No. 84-6811 - Social Science Amicus Brief Vol. 2 of 2 (Redacted) preview

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  • Case Files, McCleskey Background Materials. SCOTUS, No. 84-6811 - Social Science Amicus Brief Vol. 2 of 2 (Redacted), 1986. f3830561-6acc-ef11-8ee9-7c1e5218011c. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/23931eb3-af5b-499d-a4e6-08dfecd69381/scotus-no-84-6811-social-science-amicus-brief-vol-2-of-2-redacted. Accessed June 17, 2025.

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    IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 84-8176 

  

WARREN McCLESKEY, 

Petitioner-Appellee, and 
Cross-Appellant, 

-against- 

WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification Center, 

Respondent-Appellant, and 
Cross—-Appellee.   
  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 

— ——— —— —— —— — — i WED WE WT WE — — —— — ——— CD — —— ———  —)—— — — w= —— wes wm we ——- ——— 
EE EE EE TE IE TE Tu Th Son wn nin — — — —— — — ——— ————— — — — — — — —— —— ——— — —— 

EN BANC BRIEF FOR PETITIONER McCLESKEY 
AS APPELLEE AND CROSS-APPELLANT 

(HABEAS CORPUS) 

—— —— — — —— — — — —— — —— — — — —— — — — = ——— 1 ——— —— = —— —— ln ——h = ww ctw w=. = = 
EE EE EE EE TE EE EE ER EE NE EE ER EE EE EE Cm =m von =o 0 =n =m wos = — —. — — — —— — — — — — —— ———— — — — 

ROBERT H. STROUP 

L/ 1515 Healey Building 
Aeoktery Atlanta, Georgia 30303 

7) JACK GREENBERG 

/ JAMES M. NABRIT, III 
7 JOHN CHARLES BOGER 

.- id 99 Hudson Street 
New York, New York 10013 

TIMOTHY K. FORD 

600 Pioneer Square 
Seattle, Washington 94305 

  

ANTHONY G. AMSTERDAM 

New York University Law School 
40 Washington Square South 
New York, New York 1012 

ATTORNEYS FOR PETITIONER-APPELLEE 
AND CROSS-APPELLANT 

 



  

tions of the District Court's judgment denying relief on all 

other claims should be reversed. Alternatively, the case should 

be remanded to the District Court for a further evidentiary hear- 

ing on petitioner's claims respecting the ineffective assistance 

of counsel at trial, the arbitrary and racially discriminatory 

» 
imposition of his capital sentence, and the prosecution-proneness 

4 of his trial jury. 

: Dated: May 8, 1984 Respectfully submitted, 

TIMOTHY K. FORD ROBERT H. STROUP 

600 Pioneer Square 1515 Healey Building 

Seattle, Washington 94305 Atlanta, Georgia 30303 

ANTHONY G. AMSTERDAM JACK GREENBERG 

New York University JAMES M. NABRIT, III 

Law School JOHN CHARLES BOGER 

40 Washington Square South 99 Hudson Street 

New York, New York 10012 New York, New York 10013 

ATTORNEYS FOR PETITIONER~APPELLEE 

~ & CROSS-APPELLANT 

  

ii a rt 
By tee hiatal 

te 
V
a
n
a
 

¥ 

a 5 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the attorneys for 

petitioner-appellee Warren McCleskey, and that I served the 

annexed En Banc Brief for Petitioner McCleskey as Appellee and 

Cross-Appellant on respondent by placing copies in the United 

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

follows: 

Mary Beth Westmoreland, Esq. 

Assistant Attorney General 
132 State Judicial Building 
Atlanta, Georgia 30334 

All parties required to be served have been served. Done this 

8th day of May, 1984. 

  

” » 
in C7 A 

rd 
go [UN en ate 2 Fi 
\ 7 JOHN CHARLES BOGER 

 



  

STATEMENT REGARDING PREFERENCE 
  

These are cross-appeals by the parties from the judgment of 

the United States District Court in a habeas corpus action, 

entered February 2, 1984, seeking relief under 28 U.S.C. §§ 2241- 

2254 from the judgment of a state court. 

The cross-appeals should be given preference in processing 

and disposition pursuant to Rule 12 and Appendix One (a)(3) 

of the Rules of this Court. 

 



STATEMENT REGARDING ORAL ARGUMENT 
  

The Court directed oral argument en banc in its order of 

March 28, 1984. 

  
q % 

Y 

< re  



  

  

-
 »

 
x
)
 

Statemen 

Statemen 

Statemen 

Statemen 

(1) 

(ii) 

(iii) 

Summary 

Statemen 

Argument 

I. 

Il. 

111. 

Iv. 

TABLE OF CONTENTS 
  

Regarding Preference ....:civrrvsvneevs 

t Regarding Oral Argument ...icsesevese oy 

t of the Issues Presented for Review .... 

tof the Case ....ccceve Fe RAE a ie 

Course of Proceedings in the State 
Courts and in the Court Below ,....cesver 

SEAL OMANT OF PaCS vt sc tv ts vc edinnissimcnns 

Statement Of ReViGW ... ovis srsreniinsonse 

of ‘Argument... ec... Gis wun ainiaieinis vane sy es 

of of Jurisdiction 0. ® 9 ¢ O 0 0 0.0 0 0 0-0 O 0 0. 0 * oo ° 0 

The District Court Correctly Concluded 
That The State's Failure To Disclose To 
Petitioner's Jury A Promise By Atlanta 
Police Detective Dorsey To Witness Offie 
Evans In Exchange For His Critical Test- 
imony Against Petitioner Contravened 
The Due Process Clause Of The Fourteenth 
ANen@mant i... ees saiviires TI Pe EE Sr 

A, Facts Supporting The Giglio Claim ... 

B.. The Legal Standard ........ FER ING ELE 

The district Court Erred When It Rejected 
Petitioner's Claims That Trial Counsel 

Failed To Render Effective Assistance Of 
Counsel Jo. cv veo cee sa ieinnies iets sie eieis 

The District Court Erred When It Rejected 
Petitioner's Claim That His Jury Instruc- 
tions Contravened The Due Process Clause. 

In Rejecting Petitioner's Claim That 
Substantial Racial Disparities Persist In 
Georgia's Capital Sentencing System, The 
District Court Misapplied Controlling 
Legal Precedent, Misunderstood Basic 

Statistical Principles, and Ignored Clear 
Becord BV idence vans rr arse rinsss 

A. Introduction: Petitioner's Constitu- 
ional Cla imMS i i sear serena 

10 

12 

24 

25 

25  



  
Ba. 

47 

L 

4 

Y 
D. 

  

TABLE OF CONTENTS 
  

Page 

The Facts: Petitioner Has Made Out A 
Compelling Prima Facie Case of Racial 
Discrimination In Capital Sentencing 27 

(i) Petitioner's Experts Were Well- 
Qualified i. tics sce ra 27 

(ii) Petitioner's Data-Gathering 
Effort Was Carefully Conducted 31 

(a) The integrity of the data 
SOULCSS cts vivetesownosnsies 32 

(b) The quality of the data- 
gathering instrument ....... 36 

(c) The care employed in 
COBING ci ies vei chica 39 

(d) The basic coding conven- 
ol sb ERR aR I Cebus 41 

(iii) The Statistical Methods Were 
Valid and Appropriate .......... 44 

(iv) The Results Make Out A Prima 
Facie Case of Racial Discrimi- 
RAEION iis esse tis ese 46 

The Law: The District Court Misapplied 
The Law In Rejecting Petitioner's Prima 
PACLe CBSE i vis sins nsnivinnesvnnnos 

(1) 

(ii) 

Petitioner's Data Clearly Exceed 
Minimum Evidentiary Standards For 
Use in Regression Analysis ..... 

Multiple Regression Analysis Is 
An Appropriate Means of Proof .. 

(iii) The Models Employed by Peti- 
tioner Were Statistically 
ADDO IBLE  . ese savcies ancien 

The State Presented No Significant 
RebuttralrCase ive ieie ot onavssese 

V. The District Court Improperly Rejected 
Petitioner's Prosecution-Proneness Claim 

Conclusion 

  

LA I SE A A EE EE I JE REN BEY EN RE NEE EE REE BEE REN RE NEE UE NEY NEY REE TEE REY NEY NE NEE NEE NEY TY TEE NE TE NE 

56 

57 

39 

63 

67 

70 

70



TABLE OF AUTHORITIES 

    
  

Page 

Cases: 

Adams v. Wainwright, 709 F.2d 1443 (llth Cir. 1983) 27 

Arlington Heights v. Metropolitan Housing Authority, 429 
eS. 252: (1977) 27 

Arnold v., State, 236 Ga. 534, 224 S.E.24 3856 (1776) 14 

Bell v. Georgia, 554 P,24 1360 (5th Cir, 1977) 19 

Castaneda v. Partida, 430 U.S, 482 (1977) 69 

Columbus Board of Education v. Penick, 443 U.S. 449 
{1979) 26 

Curran v. Delaware, 259 F.2d 707 (1958) 12 

Cuyler v, Sullivan, 446 U.S. 335 (1980) 6 

Detroit Police Officers' Ass'n v. Young, 608 F.2d 671 
(6th Cir. 1979), cert. denied, 452 U.S. 938 (1981) 58,68 

Douglas v, Wainwright, 714 F.2d 1432 (llth Cir. 1983) 18 

Eastland v. Tennessee Valley Authority, 704 F.2d 613 
{llth Cir. 1983) 8,46 

: 81,63,67 
Enmund v, Florida, 458 U.S. 782 (1982) 34 

Franklin v, Francis, 720 F.2d 1206 (llth Cir. 1983) 6 

Preeman v. State of Georgia, 399% P.24 65 (Sth Cir. 
1979) 12 

A Purman v, Georgia, 408 U.S. 238 (1972) 25 

3 Gaines v. Hopper, 375 P.2d 1147 (5th Cir, 1978) 19 

Y Giglio v. United States, 405 U.S. 150 {1971) 1,5,6,6 

: 32,20,70 
Godfrey v. Georgia, 446 U.S. 420 (1980) 8,26 

Goodwin v. Balkcom, 684 F.28 794 (llth Cir, 1932), 
cert. denied, 0.8. 103 S.Ct. 1798 (1933) 17,18 

Gregg v. Georgla, 428 U.S. 153 (1978) 25,29,3) 

3 House v,. Balkcom, 725 P.2&8 608 (11th Cir. 1984) 18 

   



  

International Brotherhood of Teamsters wv. United 

  

  

States, 431 U.S, 324 (1977) 58 

Jackson v, Virginia, 443 U.S. 307 (1979) 6 

Johnson v. Uncle Ben's Inc., 628 F.2d 419 (5th Cir. 
1980), cert. denied, B.S. 103 8.Ct. 293 (1982) 8,67 

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) (en 
banc) 6 

Ring v. Strickland, 714 P.28 1481 (llth Cir, 1983) 18 

Maxwell v. Bishop, 398 F.28 138 (8th Cir. 1968), rev'd 
on other grounds, 398 U.S. 262 (1970) 29 

Moore v. Zant, 722 P.24 640 (llth Cir. 1983) 12 

Napue v. Illinois, 360 U.S. 264 (1959) 12 

Nero v. Blackburn, 597 F.24:991 {sth Cir, .1979) 21 

Palmes v. Wainwright, 725 F.2d 1511 (llth Cir. 1984) 6 

Proffitt v. Wainwright, 683 F.2d 1227 (llth Cir, 1982) 26 

Pullman-Standard v. Swint, 456 U.S. 273 (1982) 6 

Pyle v. Kansas, 317 U.S. 213 (1942) 7.12 

Rogers v. Lodge, 458 U.S. 613 (1982) ; 26 

Rummel v. Estelle, 590 F.24 103 (3th Cir. 1979) 17 

Schneider v. Estelle, 352 F.2d 393 (5th Cir. 1977) 12 

Scott v. Wainwright, 698 F.2d 427 (llth Cir, 1983) 18 

Smith v. Balkcom, 660 P.24 573 (52h Cir. Unit B (1981) 3 

Smith v. Balkcom, 671 F.28 858 (5th Cir, Unit B 1982) 
(on rehearing) 27 

Smith v. Remp, 715 F.2d 1459 (llth Cir. 1983) 12 

smith v. State of Plorida, 410 P.24 1349 (5th Cir. 
1969) 12 

Spencer v. Zant, No. 82-8408 (llth Cir.) 26 

Spinkellink v, Wainwright, 578 P.2d4 ‘582 (5th Cir, 1978) 5,8,25 

Trout vv. Lehman, 702 F.24 1094 (D.C, Cir. 1983) 58,68,69 

Dnited States v. Antone, 603 P.24 566 (5th Cir. 1379) 14 

-"vi =  



  

United States v. Barham, 625 PF.24 1221 (5th Cir. 1980) 14 

United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980) 14 

United States v. Nixon, 634 F.2d 306 (5th Cir. 1981) 14 

United States v. Poitier, 623 F.24 1017 (5th Cir. 1980) 14 

United States v. Tucker, 404 U.S. 443 (1972) 21 

Valentino v. United States Postal Service, 674 F.2d 56 
(D.C. Cir. 1982) 63 

Von Moltke v, Gillies, 332 U.S. 708 (1948) 17. 

Vuyanich v. Republic Nat'l Bank of Dallas, 505 F. Supp. 
224 (N.D. Tex. 1980), vacated, 723 P.24 1195 (Sth 
Cir. 19384) 36,58 

61,68 
Wade v. Mississippi Cooperative Extension, 528 F.2d 508 

{Sth Cir. 1976) 62 

Washington v. Davis, 426 U.S. 229 (1976) 27 

Washington v, Watkins, 655 F.28 1346 (5th Cir. Unit A 1981) 18 

  

  

Weidner v. Wainwright, 708 P.24 614 (llth Cir. 1983). 18,19 

Wilkins v, University.of Houston, 654 F.2d 383 (5th Cir. 
1981), vacated & remanded, v.85. _ , 103 8.Ct. 
34 (1932) 62 

Williams v, Brown, 609 F.2d 216 (5th Cir. 1980) 12 

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 8,26 

Young v., Zant, 677 F.2d 392 {llth Cir. 1982) 19 

Zant v. Stephens, __u.s. Ces 103 8.00. 2733 (1983) 21 

Zant v. Stephens, 456 U.S. 410 (1982) 8,26 

Statutes: 

PR. Civ. P. 52a) 8 

Former GA. CODE ANN. § 77-512 33 

0.C.G.A. § 15-1~-314) 20 

o.C.G.A. § 17-10~2 20 

0.C.C.A. § 42-55-50 20 

- vii -  



  

Other Authorities: 
  

Baldus, "Welfare as a Loan: An Empirical Study of the 
Recovery of Public Assistance Payments in the United 
States,” 25 STAN. L., REV. 123 (1973) 28 

Baldus & Cole, "A Comparison of the Work of Thorstein 
Sellin and Isaac Ehrlich on the Deterent Effect of 
Capital Punishment," 85 YALE L.J. 170 (1975) 29 

D. BALDUS & J. COLE, STATISTICAL PROOF OF DISCRIMINATION, 
(1980) 28 

Baldus, Pulaski & Woodworth, "Proportionality Review of 
Death Sentences: An Empirical Study of the Georgia 
Experience," J. CRIM. L. & CRIMINOLOGY (forthcoming 
1984) 29 

Baldus, Pulaski, Woodworth & Kyle, "Identifying Compara- 
tively Excess Sentences of Death," 33 STAN. L. REV. 
801 (1977) 29 

Bowers & Pierce, "Arbitrariness & Discrimination under 
Post-Furman Capital Statutes," 26 CRIME & DELINQ. 563 
(1980) 46 

Finkelstein, "The Judicial Reception of Multiple Regression 
Studies in Race and Sex Discrimination Cases," 80 COLUM. 

Li. REV. 737 (1980) 63 

Fisher, "Multiple Regression in Legal Proceedings," 80 COLUM. 
L. REV, 702 (1980) 61 

65,66 
J. GUILFORD & B. FRUCHTER, FUNDAMENTAL STATISTICS IN 

PSYCHOLOGY AND EDUCATION, 6th ed. (1969) 66 

Halinski & Feldt, "The Selection of Variables in Multiple 
Regression Analysis, 7 J. EDUC. MEASUREMENT 151 (1970) 53 

H. RKALVEN & H. ZEISEL, THE AMERICAN JURY (1966) 51 

J. NETER & W. WASSERMAN, APPLIED LINEAR STATISTICAL MCDELS 

(1974) 61 

Special Edition, "A Study of the California Penalty Jury in 
Pirst Degree Murder Cases,” 21 STAN. L, REV, 1297 (1969) ag 

Taylor, "Analyzing Qualitative Data," in P. ROSSI, J. WRIGHT 
& A. ANDERSON, eds., HANDBOOK OF SURVEY RESEARCH (1979) 61 

Wolfgang & Riedel, "Race, Judicial Discretion and the Death 

Penalty," 407 ANNALS 119 (1973) 29 

- viii -  



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 84-8176 

  

WARREN McCLESKEY, 

Petitioner-Appellee, and 
Cross-Appellant, 

-against- 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center, 

Respondent-Appellant, and 

Cross-Appellee. 

  

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 
  

Whether the State's failure to correct false testimony 

by a key prosecution witness, denying that he had been 

promised assistance in exchange for his testimony, 

deprived petitioner of due process under Giglio wv. 

United States, 405.0.8. 150 (1972) at his gullt and 
  

sentencing trials for murder and armed robbery? 

Whether the failure of petitioner's trial counsel to 

conduct any meaningful pretrial investigation, even 

though he was aware that potentially damaging State's 

evidence might be introduced and that useful defense 

leads remained to be pursued on both guilt and sen- 

tencing issues, violated petitioner's Sixth Amendment 

right to effective assistance of counsel? 

et  



3. VWnether the trial court's instructions on the critical 

element of malice could have been viewed by a reasonable 

juror as shifting the burden of proof to petitioner in 

violation of Sandstrom v. Montana, 442 U.S. 510 (1979), 
  

and whether in a case where malice was seriously in 

dispute, such a constitutional error could ever be 

harmless beyond a reasonable doubt? 

4. Whether the District Court erred in dismissing as a 

matter of law petitioner's Eighth Amendment Claim that 

the death penalty in Georgia is being applied in an 

arbitrary and capricious manner? | 

5S. Whether the District Court misapplied well-established 

legal standards, charting an errant legal course in 

rejecting petitioner's comprehensive statistical evidence   of racial discrimination in Georgia capital sentencing 

system? 

6. Whether the District Court erred in dismissing petitioner's 

challenge to the death-qualification of his trial jury 

as a matter of law? 

STATEMENT OF THE CASE 
  

i (1) Course of Proceedings In The State Courts And In The 

- Court Below 
  

Petitioner Warren McCleskey, a young black man, was convicted 

in the Superior Court of Fulton County, Georgia on October 12, 1978 

-- by a jury comprised of eleven white jurors and one black juror 

{Fed., Hab, 7T. 1316). -—- of the murder of Police Officer Frank 

  

1/ Each reference to the transcript of the evidentiary hearing 

(Continued)  



  

Schlatt, and of two counts of armed robbery. (Petitioner McCleskey 

alone, among seventeen defendants indicted in Fulton County between 

1973 and 1980 for the murder of a police officer, received a death 

sentence for his crime.) (Fed. Hab. Tr. 1050-52: DB 115, 116.)2/ 

He was sentenced to death for murder and to separate life sentences 

for armed robbery. 

After state habeas corpus proceedings had been completed, peti- 

tioner filed a federal habeas corpus petition in the Northern 

District of Georgia, Atlanta Division, on December 30, 1931. The 

District Court entered an order on June 10, 1982 denying a motion 

for an evidentiary hearing, and dismissing the petition without 

prejudice, citing petitioner's ostensible failure to exhaust one 

constitutional claim (R. 248). Petitioner filed a timely motion 

to alter or amend the judgment (R. 261), and on October 8, 1982, 

the District Court entered a further order, directing an evidentiary 

hearing (R. 475). 

Upon the State's motion (R. 498), the hearing was continued 

while respondent Zant pursued discovery. On April 7, 1983, peti- 

tioner also filed a motion for discovery, seeking to serve inter- 

rogatories, to obtain production of documents, and to depose re- 

  

in the United States District Court for the Northern District of 
Georgia, Atlanta Division, on August 8-22, 1983, wil be indicated 
by the abbreviation "Fed. Hab. T." Each reference to the transcript 
of petitioner's state trial will be indicated by the abbreviation 
Le Tr." References to the transcript of petitioner's state 
habeas corpus hearing will be indicated by the abbreviation "St. 
Hab, Tr." 

2/ Each reference to petitioner's exhibits introduced during 
the federal evidentiary hearing will be indicated by the initials 
of the witness through whose testimony the exhibit was introduced 
(e.g9., Professor David Baldus becomes "DB") followed by the 

exhibit number.  



  

° 

spondent's Sinents. {(R. 541.) On June 3, 1983, the Digtrict 

Court entered an order which: (i) granted the depositions peti- 

tioner had sought; (ii) directed respondent to list all objections 

or criticisms of petitioner's data base, and analyses; but (iii) 

denied as "not relevant to any issue presented by the petitioner" 

those interrogatories which sought information about discrimination 

in the criminal justice system and about prosecutorial plea bargaining 

: 4/ 
practices.” 

Subsequently on July 21, 1983, petitioner was forced to file 

a motion to compel respondent to respond in full to his request 

for all objections to the Baldus studies. Thereafter, petitioner 

filed a request for respondent to admit the accuracy of the data upon 

which Professor Baldus conducted his analyses, except insofar as 

respondent had noted objections (R. 593). 

During a pretrial conference held on July 29, 1983, the 

  

3/ continued 

cases in which petitioner lacked this information; (ii) on the 

race of the victim in designated cases; (iii) on whether a penalty 

that had been held in designated cases; (iv) on all "private, judi- 

cial, administrative or agency challenges made against [Fulton] County 

grant or traverse juries" on grounds of racial discrimination, as well 

as all actions challenging prosecutorial use of premptory challenges, 

all challenges to police or prosecutorial actions in Fulton County 

because of alleged racial discrimination in the administration of 

criminal justice; and (v) on the percentage of blacks employed in a 

range of city, county and state positions related to the criminal 

justice system (R. 556-62). Petitioner also requested respondent to 

"[l]ist all objections, criticisms or deficiencies of the data base, 
date-gathering methods, analyses and conclusions" of petitioner's 
expert Professor David Baldus (R. 566). 

4/ The Court also initially denied as irrelevant petitioner's 
request for access to documents revealing Fulton County prosecu- 
torial practices and rationales in homicide case (R. 596). 
Subsequently, in a pretrial conference, the Court reconsidered 
this portion of its June 3rd order and allowed petitioner to 
depose Lewis Slayton, the District Attorney for the Atlanta 
Judicial Circuit. 

“d=  



  

  

District Court ordered respondent to file a complete list of its 

objections by August 3, 1983. A modified order was entered on 

August 5, 1983 (R. 716). Respondent did not fully meet this 

schedule, as petitioner's counsel noted at the outset of the 

August 8, 1983 hearing (Fed. Hab. Tr. 10-11) .2/ 

The evidentiary hearing itself comprised over two weeks of 

testimony, from August 8-22, 1983. A further hearing on statisti- 

cal issues was later held on October 17, 1983. The District Court 

entered an order and judgment on February 2, 1984, granting habeas 

relief on petitioner's due process claim under Giglio v. United 

States, 405 U.S. 150 (1971), and otherwise dismissing petitioner's 

Claims (R. 1129). 

(ii) Statement of Facts 
  

In view of the number and complexity of the issues presented 

on these cross-appeals, the page constraints imposed, the need to 

avoid repitition, and the statement of facts already presented by 

respondent (see Resp. Br. 4-33 ,%/ petiticner will set forth facts 

necessary for the consideration of his claims as part of the 

argument on each of those claims. 

(iii) Standard of Review 
  

(a) As respondent concedes (Resp. Br. 8), petitioner's 

  

St On several occasions during the hearing, respondent acknow- 

Tedged that it had not identified alleged deficiencies in the 
data base (which would have permitted petitioner's experts to 
correct them and rerun its analyses) (Fed. Hab. Tr. 648-52; 
gee algo id. 1385: 1417). 
  

6/ Each reference to the Brief of Respondent-Appellant, dated 
April 10, 1984, will be identified by the abbreviation "Resp. 
Br." followed by the number of the page on which the reference 
may be found. 

 



  

  

due process claim under Giglio v. United States is a mixed ques- 
  

tion of fact and law requiring independent review by this Court; 

See e.g., Cuyler v., Sullivan, 446 US. 335, 341-42 (1980). 
  

  

(b) Petitioner's claim that his counsel was ineffective 

is also a mixed question of fact and law, requiring independent 

review. See, e.g., Palmes v. Wainwright, 725 F.2d 1511, 1519 
    

{11th Cir, 19384), 

(c) Petitioner's due process challenge under Sandstrom 
  

v. Montana, 442 U.S. 510 (1979), requires this Court's independent 

application of legal principles to record facts. See, e.g., 
  

Franklin v. Prancis, 720 F.24 1206 (11th Cir. 1983). 
  

(d) Petitioner's claim that the death penalty in the 

State of Georgia is being imposed in arbitrary and discriminatory 

patterns raised some factual issues, reviewable under F. R. Civ. 

P. 52(a), see e.qg,, Pullman-3tandard v. Swint, 455 U.85. 273 
  

(1982); many mixed questions of fact and law, requiring independent 

review by this Court, see, e.g., Cuyler v. Sullivan, supra; and 
    

several questions of federal constitutional law, requiring inde- 

pendent appellate determination, see, e.q., Cuyler v. Sullivan, 
    

supra. 

(e) Two panels of this Court have previously held that 

petitioner's challenge to the death-qualification of his jury 

raised solely a legal issue. See Smith v. Balkcom, 660 F.2d 573, 
  

578 & n.12 (5th Cir. Unit B 1981) Spinkellinlk v, Walnwright, 578 
    

F.24 582, 593-96 (5th Cir, 1978). We respectfully disagree, 

believing it raised both factual and legal questions requiring a 

full evidentiary hearing and independent review by this Court. 

 



  

  

SUMMARY OF ARGUMENT 
  

The District Court correctly concluded that the State's fail- 

ure to disclose a promise to one of the State's key witnesses 

contravened the Due Process Clause. Giglio v. United States, 405 
  

U.S. 150 (1972). The Supreme Court had held that the State has 

an obligation to disclose such a promise, made as it was in this 

case, by a police officer. Pyle v. Kansas, 317 U.S. 213 (1942). 

Because of the critical nature of the witness' testimony, it 

was likely that jury deliberations would have been affected if 

the promise had been disclosed. 

The District Court erred in rejecting petitioner's ineffec- 

tive assistance of counsel claim. Trial counsel's failure to 

interview State witnesses, to review the State's documentary 

evidence, and to interview witnesses who supported a defense 

theory presented at trial, all constituted ineffective assistance 

of counsel which resulted in actual and substantial prejudice to 

petitioner, Moreover, trial counsel's performance at the penalty 

phase also fell below Sixth Amendment standards. 

The District Court improperly rejected petitioner's Sandstrom 
  

claim. The instruction given to his trial jury suggested that 

petitioner had the burden of proof, and failed to specify what 

burden lay on petitioner to rebut the presumption on intent and 

malice which the trial court included in its charge. The en banc 

court should hold that a Sandstrom violation is harmless only when 
  

the instruction has no bearing on the offense for which the defend- 

ant is convicted, or when the defendant has, by his own actions, 

taken the issue of intent away from the jury. Alternatively, the 

- 

 



  

Court should hold that, on the facts presented herein, the 

Sandstrom violation was not harmless beyond a reasonable doubt. 
  

The District Court, relying in Spinkellink v. Wainwright, 578 
    

PF.24 582 (5th Cir. 1978), rejected as a matter of law petitioner's 

Eighth Amendment claim that Georgia's capital statutes are being 

applied in an arbitrary and capricious manner. Yet the Supreme 

Court has made clear the legislation valid on its fact can be 

found discreiminatory in its application. Yick Wo v. Hopkins, 118 

U.S. 356, 373-74 (1886). Capital statutes, even in the post-Furman 

era, are no exception. See Godfrey v. Georgia, 446 U.S. 420, 428 
  

(1980); Zant v. Stephens, 456 U.S. 410, 413 (1982). Therefore, 
  

the refusal even to entertain petitioner's comprehensive statis- 

tical evidence was clear constitutional error. 

The District Court did permit petitioner to place his statis- 

tical evidence before the Court in support of a Fourteenth Amend- 

ment equal protection claim. However, the Court departed radically 

from prior precedents in evaluating that evidence. Rejecting 

multiple regression analysis as a valid mode of proof, refusing 

to take seriously any but large-scale statistical models which 

contained every possible variable, measuring petitioner's data 

against unattainable standards of perfection, the District Court 

adopted novel and unjustifiable standards totally at odds with 

this Court's prior teachings on the evaluation of statistical 

proof. See, e.g.; Eastland v. Tennessee Valley Authority, 704 
    

F.24 613 (11th Cir. 1983): Jonnson-v. Uncle Ben's Inc., 628 F.24 
  

419 (5th Cir. 1980), The Court's opinion on this claim is suf- 

fused with both factual misunderstandings and legal misconceptions, 

a  



  

requiring this Court to vacate and remand for further proceedings 

under appropriate legal standards. 

The Court's rejection as a matter of law of petitioner's claim 

that exclusion of death-scrupled jurors unconstitutionally dent ived 

him of a fair and impartial jury, drawn from a representative cross- 

section of his community, was error. See, e.g., Grigsby v. Mabry, 
    

569 P. Supp. 1273 (E.D. Ark. 1983), appeal pending No. 83~2113-EA 
  

{8th Cir.). 

STATEMENT OF JURSIDICTION 
  

The judgment of the District Court was entered on February 2, 

1984. The District Court entered orders granting a certificate 

  

of probable cause to appeal and leave to proceed in forma pauperis 

on March 12, 1984. The Court has jurisdiction of these cross- 

appeals pursuant to 28 U.S.C. § 2253. 

ARGUMENT 
  

1. THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE 

STATE'S FAILURE TO DISCLOSE TO PETITIONER'S JURY 
A PROMISE BY ATLANTA POLICE DETECTIVE DORSEY TO 
WITNESS OFFIE EVANS IN EXCHANGE FOR HIS CRITICAL 
TESTIMONY AGAINST PETITIONER CONTRAVENED THE DUE 

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 
  

The District Court concluded that the State's failure to dis- 

close to the jury an understanding between Atlanta Police detective 

Sidney Dorsey and trial witness Offie Gene Evans contravened the 

Due Process Clause of the Fourteenth Amendment. (R. 1218-25.) 

The District Court's conclusion is consistent with precedents 

established by the United States Supreme Court and faithfully 

followed by the panel decisions of this Court.  



  

A. Facts Supporting the Giglio Claim 
  

Offie Evans was a key State witness in Warren McCleskey's 

trial. Evans' testimony explained certain inconsistencies in the 

eyewitness identifications of McCleskey as one of the robbers of 

the Dixie Furniture Store. More critically, Evans told the jury 

that McCleskey had confessed to him that he had shot Officer 

Schlatt and would have done the same thing if it had been twelve 

police officers. Evans' testimony was the centerpiece of the 

prosecutor's argument to the jury that McCleskey had committed 

the shooting with malice. (R. 1222). 

The District Court correctly found that Evans testimony 

before the trial jury was false and evasive. Evan's federal 

prisoner described his "escape" from the Federal Halfway House in 

Atlanta as nothing more than a misunderstanding between himself 

and the Halfway House administrators, and when he stated that no 

promises had been made to him concerning his escape charges in 

exchange for his cooperation with the McCleskey prosecution. (R. 

1220.) Evans' misleading testimony to petitioner's jury was as 

follows: 

#1) You do have an escape charge still pending, is that 
correct? 

A: Yes, sir. I've got one, but really it ain't no escave, 
what the peoples out there tell me, because something 
went wrong out there so I just went home. I stayed at 

home and when I called the man and told him that I 
would be a little late coming in, he placed me on 
escape charge and told me there wasn't no use of me 
coming back, and I just stayed on at home and he come 
and picked me up. 

QO: Are you hoping that perhaps you won't be prosecuted for 
that escape? 

A: Yeah, I nope I don't but I don't -- what they tell me, 
they ain't going to charge me with escape no way. 

(TT. Tr. 3568), 

30  



This testimony is directly contradicted by federal records 

7/ 
detailing the circumstances surrounding Evans' escape.” 

Evans' trial testimony was also wholly misleading regarding 

his expectations of help from State authorities in exchange for 

  

. his cooperation in the McCleskey prosecution. As the District 

Court correctly found, the jury was left with the impression by 

Evans' testimony that no promises had been made concerning the 

pending escape charges. (R. 1220). His actual testimony before 

¢ the trial court was: 

Q: [Assistant District Attorney] Have you asked me to try 

to fix it so you wouldn't get charged with escape? 

A: No, sir. 

Qs: Have I told you I would try to fix it for you? 

A: No, sir, 

(T. Tr., 868-69). On cross-examination Evans expanded upon his 

evasion regarding promises made by the State: 

Ys Okay. Now, were you attempting to get your escape 

charges altered or at least worked out, were you 

expecting your testimony to be helpful in that? 

A: I wasn't worrying about the escape charge. I wouldn't 

have needed this for that charge, there wasn't no 

escape charge. 

{T. Tr. 882), 

That testimony, as the District Court found, is directly 

contradicted by Evans' testimony to the State habeas court 

J that "the Detective told me that he would -- he said he was going 

to do it himself, speak a word for me. That was what the Detective 

told me." (St. Eab. Tr. at 122). 

  

7/ Those records show that Evans had been told by federal person- 

nel that disciplinary measures would be taken against him because 

of his use of drugs. In describing his activities during his 

escape, Evans had told federal prison authorities that he had gone 

to Florida as part of an investigation dealing with drugs, and 

that he expected to be well paid for his part. (R. 333, R. 1206). 

~11m 

 



Bs The Legal Standard 
  

Applicable Supreme Court authority supports the District 

Court's conclusion that the State's failure to disclose its 

promise to witness Offie Gene Evans, made by Atlanta Police 

Detective Sidney Dorsey, contravened the Due Process Clause. 

It is the obligation of the State =-- not simply the prosecuting 

Te attorney -- to reveal all promises or understandings between a 

5 witness and agents of the State which might affect the jury's   judgment as to the witness' credibility. Napue v. Illinois, 360 
  

U.S. 264, 269 (1959) expressly holds that 

it is established that a conviction obtained through 
use of false evidence, known to be such by representatives 
of the State, must fall under the Fourteenth Amendment. 
(Citations omitted). The same result obtains when the 
State, although not soliciting false evidence, allows it to 
be uncorrected when it appears. 

  

  

(Emphasis added). Accord, Giglio v. United States, 405 U.S. 150 
  

(1972); Pvle v. Ranszasg, 317 U.S. 213 (1942). 

Panels of this Circuit have repeatedly held that an undis- 

closed promise of favorable treatment, made by a pollce officer 

to a government witness, is subject to the protections of the 

Due Process Clause. Smith v. State of Florida, 410 F.2d 1349 (5th 
  

Cir. 1969); Schneider v,. Estelle, 552 P.2d 893 (Sth Cir. 1977); 
  

Freeman v, State of Georgia, 599 F.2d 65 (5th CIr. 1979); Williams 
    

v, Brown, 609 F,.28 216 (5th Cir. 1980); Smith v. Remp, 713 F.24 

1549 (11th Cir. 1983); Moore v. Zant, 722 F.24 B40 (11th Cir. 1983). 

The District Court, furthermore, properly concluded that 

there was a reasonable likelihood that disclosure of the promise 

of favorable treatment to Evans would have affected the judgment 

of the jury on the murder indictment (R. 1223-25), since Evans' 

“fo  



  

  

testimony was critical to the State theory at trial (R. 1222): 

First, he [Evans] alone of all the witnesses for the prosecu- 
tion testified that McCleskey had been wearing makeup on the 
day of the robbery. Such testimony obviously helped the 
jury resolve the contradictions between the descriptions 
given by witnesses after the crime and their in-court 
identifications of petitioner. Second, Evans was the 
only witness, other than the co-defendant, Ben Wright, to 
testify that McCleskey had admitted to shooting Officer 
Schlatt. No murder weapon was ever recovered. No one 
saw the shooting. Aside from the damaging testimony of 
Wright and Evans that McCleskey had admitted the shooting, 
the evidence that McCleskey was the triggerman was entirely 
circumstantial. 

* * * 

The court's conclusion ... is bolstered by the fact that the 
trial judge, in charging the jury as to murder, instructed 
the jury that they could find the defendant guilty as to 
either malice murder or felony murder. After approximately 
two hours of deliberation, the jury asked the court for 
further instructions on the definition of malice. Given the 
highly damaging nature of Evans' testimony on the issue of 
malice, there is a reasonable likelihood that disclosure 

of the promise of favorable treatment to Evans would have 
affected the judgment of the jurv on this issue. 

{R. 1222-23) 

The District Court also correctly found that Evans' testimony 

resolved contradictions in the eyewitness' testimony that McCleskey 

was one of the robbers. Evans testified that McCleskey told him 

he had been wearing makeup at the time of the robbery, thereby 

offering an explanation to the jury as to why the description 

given to police officers by one of the primary eyewitnesses _ 

varied so radically from McCleskey's physical appearance at 

trial. 

Evans' testimony that McCleskey had admitted shooting 

Officer Schlatt was obviously critical. No one saw the shooting, 

and McCleskey's statement given to police indicated only that he 

had participated in the robbery. While Ben Wright, one of the 

-i3= 

 



  

co-defendants, testified that iMcCleskey had admitted the shooting, 

under Georgia law, the testimony of an accomplice must be corrobo- 

rated. Arnold v, Stare, 236 Ga. 534, 224 s.EBE.2d 336- (1976), 
  

and Wright nad a clear interest in casting blame on a co-defendant. 

Because the State tried the case to the jury on the theory 

that McCleskey was the triggerman and sought the death penalty on 

2% that ground (T. Tr. 973), Evans' testimony was critical to the 

Y State's case. The State's argument that Offie Evans was not a 

key witness is contrary to the express findings of the District 

8/ gourt. It is also contrary to the principal argument the 

  

8/ This case is unlike those wherein this Court has found no 
likelihood that the deliberations of the jury would have been 
affected by revelation of the undisclosed material. In both United 
States v. Poitier, 623 F.2d 1017 (5th Cir. 1980) and United States 
V. Nixon, 632 7.24 306 (5th Cir. 1981), the State failed to 

provide information regarding a promise, but the jury nonetheless 
learned the details of the State's understandings with the witness 
during the trial. In petitioner's case, the jury never learned 
of the promise to Evans, nor of any of the evidence which the 

District Court found to be highly impeaching in character. (See 
R. 1255.) In United States v, D'Antignac; 628-P.24-428--(5th- Cir. 
1930), this Court held that failure to disclose an understanding 
would not have affected jury deliberations because a series of 
other promises were revealed to the jury. In United States v. 
Barham, 625 F.2d 1221 (5th Cir. 1980), the Court reached the same 
result because most of the details of the agreement were revealed 

to the jury, although certain inconsistencies in testimony 
existed. The jury in petitioner McCleskey's trial heard no 
evidence indicating any promises made to Evans. 

Finally, in United States v. Antone, 603 F.2d S66 (5th Cir. 
1979), a panel of this Court found no reasonable likelihood that 

' jury deliberations would have been affected by the failure of the 
State to correct false testimony by a witness regarding the State's 
agreement to pay certain of his attorney's fees. The Court noted 
that the witness "background was exposed to the jury in considerable 
detail." Included in the evidence presented to the jury in Antone 
was evidence of numerous felony convictions; the witness use of 
addictive drugs; his previous treatment for mental illness, his 

prior inconsistent statements about matters which were the 
subject of his trial testimony; and the details of his plea 
bargain with the Government. In this case, by contrast, Evans' 
packground was not exposed to the jury. The jury did not learn 
of the agreement with Dorsey, nor of Evans' history of drug 
abuse, or the drug-related nature of his escape. 

“ld 

  
  

  

  

  

  

 



promise of favorable treatment would have affected the judgment 

of the jury on the issue of petitioner's conviction for malice 

murder. 22/ 

11. THE DISTRICT COURT ERRED WHEN IT REJECTED 
PETITIONER'S CLAIMS THAT TRIAL COUNSEL FAILED 
TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL 
  

In the District Court, petitioner contended that trial 

counsel had failed to render effective assistance of counsel 

before, during and after McCleskey's state trial. In rejecting 

those claims, the District Court committed a number of legal and 

factual errors.   Prior to petitioner's trial, which began on October 9, 

1978, petitioner's trial counsel had interviewed none of the 96 

witnesses listed by the State as potential witnesses at McCleskey's 

  

8A/ The District Court, however, concluded that there was no 
reasonable likelihood that the jury would have reached a different 
verdict on the charges of armed robbery. (R. 1222-23). The 
Court reasoned that Evans' testimony regarding petitioner McCleskey's 
participation in the armed robbery, as distinguished from Evans’ 
testimony regarding McCleskey's intent to commit malice murder, 
was cumulative of other testimony. The Court refused to grant 
petitioner a new trial or a new sentencing phase in light of the 
jury's decision to impose consecutive life sentences at the 
penalty phase. (R. 1266). Petitioner does not appeal from the 

. Court's determination regarding the armed robbery convictions; he 
: does, however, contend that the District Court erred when it 

failed to set aside the consecutive life sentences for armed 
robbery and order a new penalty phase on these convictions. 

  

It is likely the jury deliberations on the sentencing for 
armed robberies would have been different had the jury known of 
the impeaching evidence regarding Evans. The jury's decision was 
based on its judgments about petitioner, influenced as they were 
by the testimony of Offie Gene Evans, that petitioner's role in the 
armed robberies including the murder of Officer Sclhatt. If the 
jury had disbelieved Evans on that point, it may well have imposed 
a lesser penalty for the armed robbery convictions. The District 
Court erred, therefore, in failing to grant a new penalty trial 
on the armed robbery convictions. 

-15-  



  

or the co-defendant's crisis Among those whom trial counsel 

failed to interview were: (i) the victims of the Dixie Furniture 

Store robbery; (ii) a Fulton County Sheriff's Deputy and an 

inmate at the Fulton County Jail, who testified regarding circum- 

stances surrounding an alleged confession by McCleskey to the 

inmate; and (iii) the State's Crime Lab expert, who gave his 

opinion regarding the identity of the murder weapon. 

Nor were potential defense witnesses interviewed prior to 

trial. Among the victims of the robbery at the Dixie Furntiure 

Store were four witnesses whose statements to police called into 

question the State's circumstantial evidence that only one of the 

robbers was in the front of the Store at the time of the shooting, 

and therefore, he was the one who shot Officer Schlatt. None of 

these witnesses, who could have supported petitioner's defense 

was ever interviewed, much less presented at trial. Nor were 

potential leads to character witnesses for the sentencing 

phase pursued by defense counsel. 

Defense counsel also failed to investigate the State's docu- 

mentary evidence. Although the prosecution advised trial counsel 

that it intended to introduce into evidence, as aggravating cir- 

cumstances at the penalty phase, evidence of McCleskey's prior 

convictions on armed robbery counts and sentences to three life 

terms in Douglas County, Georgia in 1970 (State Court R. at 47), 

trial counsel conducted on inquiry into the circumstances surround- 

ing those sentences, thereby failing to discover that they had 

  

9/ Of the 24 witnessed called by the State at McCleskey's trial, 

only four had testified at the preliminary hearing. (St. Hab. Tr. 
28.) 

lf  



been set aside by the prosecutor's agreement to a new trial in 

1971, and failing to discover that the reason the prosecutor con- 

sented to a new trial was that key evidence introduced at the 

trial had been seized without a valid search warrant in contra-   vention of the Fourteenth Amendment. (Fed. Hab. Tr 1817-18; 

1821-24.) 

The District Court held that, although McCleskey's trial 

vy counsel had concluded, prior to trial, that the State's case 

would likely include testimony of an alleged "jailhouse confession" 

by McCleskey, trial counsel had no duty to investigate because 

petitioner himself steadfastly denied making such a confession 

{R. 1255) .18/ That conclusion was contrary to this Circuit's 

principles regarding the obligations of trial counsel to conduct 

an independent investigation into the facts of the case. Goodwin 

v. Balkcom, 684 F.2d 794, at 805 (11th Cir. 1982); Rummel v. 

Estelle, 590 F.24 103, 104 (5th Cir, 1979), quoting Von Moltke v, 
  

  

10/ Trial counsel admitted that his "only conclusion" once he 
Tearned that a Fulton Deputy had been listed by the State as a 
witness was that someone was going to testify regarding a jailhouse 
confession, (St. Hab. Tr. 76.) This conclusion by trial counsel 
was bolstered by his knowledge that the prosecutor had a statement 
from an undisclosed person which had not been given to defense 
counsel. (St. Hab. Tr. 77.) Yet trial counsel never interviewed 
the Fulton County Deputy nor took any other available steps to protect 
his client against the risk of false testimony regarding a 
subject as potentially damaging as a jailhouse confession. 

The District Court's reasoning that it "would be anomalous 
the, for this court to grant McCleskey habeas corpus relief on 
the grounds that McCleskey's counsel was ineffective because he 
did not disbelieve petitioner and undertake an independent 
investigation" (see R. 1253) is faulty. Trial counsel's duty 
to investigate the circumstances surrounding a confession does 
not turn on whether his client admitted he gave the confession. 
Rather, the duty to investigate arises when trial counsel has a 
reasonable belief that a confession will be offered by the State, 
which 1s what the District Court found to be the case here. 
  

Ry  



  
Gillies, 332 U.S. 708, 721 (1948). 

Viewing the facts "from the perspective of counsel, taking 

into account circumstances known to counsel at the time," Douglas 

v. Wainwright, 714 P.24 1432, 1554 (11th Cir. 1983); Houss v,. 
  

Balkcom, 725 P.24 808, 619 (11th Cir, 1984), trial counsel failed 

to investigate when his own understanding about the facts called 

for an investigation. This Court has repeatedly held that trial 

counsel has an obligation to conduct an investigation into 

possible defenses as well as evidence in support of the State's 

case. Goodwin v. Balkcom, supra, at 810-12, 817; Scott v. 
  

Walnwright, 698 P.2d4 427 (11th Cir. 1983); Weidner v. Wainwright, 
    

708 P#.24 614 (11th Cir. 1983). 

Furthermore, the District Court acknowledged that prejudice 

resulted from trial counsel's failure to conduct an investigation 

once he had concluded that testimony regarding a confession 

would be part of the State's evidence: 

Evans' testimony was certainly very damaging to petitioner 
and a pretrial investigation as to what his testimony may 
have uncovered the details of his escape from a halfway 
house and the pending federal charges against him, his 
"understanding" with an Atlanta police detective, his 
history of drug abuse, and his imaginative story that he 
had gone to Florida and participated in an undercover drug 
investigation during his escape. Discovery of such 
evidence would have had substantial impeachment value. 

(R. 1255.) Presentation of this testimony to the jury would 

likely have had a substantial impoact, both at the guilt and 

sentencing phase. 

The District Court also rejected petitioner's claim that 

trial counsel was ineffective when he failed to interview and 

subpoena for trial four crime scene witnesses whose testimony 

“lB  



"might have cumulatively created a reasonable doubt as to 

whether petitioner was the triggerman." (R. 1254.) The 

District Court incorrectly found that trial counsel, as a matter 

of strategy, chose to offer only one defense at trial -- that of 

alibi. (R. 1254.) Examination of trial counsel's testimony 

before the State habeas court shows this finding is clearly 

erroneous. Trial counsel testified that he chose to develop two 

defenses at trial -- one of alibi, and another that more than one 

of the co-defendants was in the front of the store at the time of 

the shooting: 

I would ... state that was part of the theory if the 

defense in that information was developed during the 

cross examination of several of the State's witnesses 

and one of the theories that the defense put forth was 

the fact that Ben Wright had come from the back into 

the front and was in fact the person who shot Officer 

Schlatt. 

(St. Hab, Tr. 45-48).   
The District Court's finding that trial counsel pursued 

only one line of defense is thus erroneous. Rather than assess 

trial counsel's failure to interview as though trial counsel had 

rejected this line of defense, the appropriate analysis was one 

based on trial counsel's decision to present the defense at 

trial. 

Judged in this light, it was ineffective to fail to inter- 

view prior to trial, and subpoena for trial, available witnesses 

who would have offered support for one of petitioner's 

defenses. Davis v. Alabama, supra; Gaines v. Hopper, 575 F.2d 
  

1147 (5th Cir. 1978); Weidner v. Wainwright, supra; cf, Young v. 

Zant, 677 .F.28 392 {11th Cir. 1982) 1% 

  
  

  

12/ As the District Court noted, the testimony of the four 

witnesses who were not called by the defense could have created 

(Continued) 

a i Ta  



  

The District Court agreed that trial counsel's failure to 

object to introduction of evidence of three life sentences which 

had been imposed upon McCleskey in September, 1970, constituted 

ineffective assistance of counsel. (R. 1256-57). The Court 

further concluded, however, that petitioner could not show 

actual and substantial prejudice (apparently at the guilt phase) 

and that, as to the penalty phase, while the petitioner was 

prejudiced, the Court was unprepared to grant a new trial, at 

least in part because the Court had done so on the Giglio claim. 

(R. 1257). While the Court correctly concluded that counsel was 

ineffective in failing to object to entry of the evidence of the 

three life sentences, the District Court erred when it concluded 

that no relief should be granted. 

Evidence introduced during McCleskey's trial, and used at 

the penalty phase, showed that a Douglas County jury had 

imposed three life sentences upon petitioner in September, 1970. 

(Exh. JT-2). Yet, before the federal court petitioner showed 

that those three convictions and life sentences had been set 

aside upon the consent of the District Attorney to a new trial 

in December, 1971. (Exh. WM-2). Under both Georgia law, and 

federal law, introduction of the evidence of the three life 

sentences was error. Under Georgia law in effect at the time of 

petitioner's trial, the sentences were not admissible because 

they were not based upon final judgments. O0.C.G.A. § 16-1-3(4) 

and 42-5-50 (R. 900-01). 

  

(Continued) 

a cumulative doubt as to whether McCleskey was the triggerman. 

Statements by each of them contained in the prosecutor's file 

indicated, contrary to the State's circumstantial evidence 

presented at trial, that at least one of the co-defendants had 

left the rear of the Store, and had gone to the front, prior to 

the firing of the shots that killed Officer Schlatt. Relevant 

excerpts are set out at R. 886-87. 

=30~  



  

Under federal law, evidence of convictions tainted with 

unconstitutionality is inadmissible. Zant v. Stephens, 
  

U.S. + 103. 8.Ct, 2733 at 2748, n. 23 (1983); United Staces 
  

v. Tucker, 404 U.S. 443 (1972). Because trial counsel conducted 

no investigation whatsoever into the State's evidence of the 

three Douglas County life sentences (Fed. H. Tr., 1817-18, 

1821), he failed to object to their admission. This constituted 

ineffective assistance of counsel. 

McCleskey suffered actual and substantial prejudice at 

the sentencing phase from this failure. The District Court 

recognized that knowledge of the invalid convictions and life 

sentences would likely have affected jury deliberations. (R. 

1257). The Court's determination in this regard is amply sup- 

13 
ported by the facts in the case 

  

13/ The District Attorney's argument to the jury was grounded 
on the three life sentences. He asked the jury to consider 
particularly, in their deliberations, the three life sentences 
which McCleskey had already received. (T. Tr., 1019-20). He 
also advised the jury that if they wished the sentence on the 
armed robbery counts to be served consecutively, they should 
specify on their verdict. (7. Tr., 1018). 

The jury imposed a sentence of death, rather than life, 
on the murder count, and two consecutive life sentences on the 

armed robbery counts (State Trial R., at 56). The sentences 

imposed were the most severe options open to the jury. 

Because the jury improperly considered in its deliberations 

on penalty, for the robbery as well as the murder convictions, 
the prior life sentences which had been set aside, it is likely 
that the jury imposed a greater penalty than they would have 
otherwise. A panel of this Court has previously held that per- 
mitting the State to admit prior invalid convictions constituted 
ineffective assistance of counsel and that 

[wle can hardly imagine anything more prejudicial 
to Nero [the petitioner] than allowing the jury in 
his armed robbery case to hear the prosecutor's 
comments that Nero had been convicted twice before 
of burglary and once on drug charges. 

Nsro v. Blackburn, 597 F.24 891 (5th Cir. 1979) 
  

lf  



The District Court also concluded that trial counsel had 

not been ineffective at the sentencing phase, since he made 

inquiries of McCleskey and McCleskey's sister about the avail- 

ability of character witnesses who could have testified on 

McCleskey's behalf (R. 1258). However, trial counsel failed to 

pursue other avenues clearly known to him at the time, which 

would have led to favorable character testimony from witnesses 

willing to testify on McCleskey's behalf. The District Court's 

conclusion ignoring that failure is error, and petitioner is 

entitled to a new penalty phase hearing on the robbery and 

murder convictions. 

The State habeas record shows that trial counsel's only 

efforts to contact character witnesses for the sentencing phase   
amounted to conversations with petitioner while he was incar- 

cerated, and a telephone conversation or meeting with one of 

petitioner's family members. (St. Hab, 80). Although clearly 

aware of other potential sources of information which he left 

untouched--including the minister of the McCleskey family 

church in the community wherein McCleskey grew up--trial 

counsel apparently did not contact them and personnel at the 

high school which McCleskey attended. (St. Hab. 90, 83). 

Had he done so, he would have been immediately placed in 

touch with church members who were neighbors of the petitioner 

: 14 
when he was growing up et They would have been able to 

  

14/ Petitioner sought to expand the federal habeas record below 
to include an affidavit from Reverend Johnson showing that he 
had been in touch with trial counsel, but that trial counsel had 

(Continued) 

   



present a positive picture to the jury of McCleskey. Similar 

testimony was available, had trial counsel sought it out, from 

other church members as well as Lemon Street High School personnel. 

Their affidavits are a part of the State habeas record. See, 

2.3. (St. Hab. R. 225-28; 231-32; 227-30). 

Trial counsel's failure to pursue these available avenues 

to sentencing phase witnesses was not a matter of strategic 

choice. He indicated his desire to have character witnesses for 

the sentencing phase (St. Hab. 82). Rather, his failure was 

simply a reflection of his abdication of his client's cause 

at the pre-trial investigatory phase. +> Beyond conversations with 

his client and one of his sisters trial counsel simply conducted 

no pretrial investigation whatsoever. 

For the foregoing reasons, the District Court erred when it 

failed to grant petitioner a new trial on the ineffective assist- 

ance of counsel claim.   
  

14/ (continued) 

never asked for names of persons who could have testified regard- 
ing petitioner's background, which Reverend Johnson could have 
supplied. (R. 264, 322-23), The Court denied that motion. 
To the extent this Court finds the Reverend Johnson evidence 
critical to disposition of this question, petitioner submits the 
District Court's refusal to make it, and the accompanying affi- 
davit of petitioner's former wife, a part of the record, was 
erroneous. 

15/ Had trial counsel conducted an independent investigation, 
when he asked the jury on McCleskey's behalf to reflect on his 
humanity (T. Tr. 1024), the jury would have been in a position 
to consider McCleskey's devotion as a father; the close relation- 
ship he had with his daughter; and the positive manner in which 
acquaintances described him. Trial counsel's plea that the 
jury consider his humanity would have had an evidentiary founda- 
tion. In the absence of any pretrial investigation the plea 
was a hollow one. 

23  



  

III. THE DISTRICT COURT ERRED WHEN IT REJECTED PETI- 
TIONER'S CLAIM THAT HIS JURY INSTRUCTIONS CON- 
TRAVENED THE DUE PROCESS CLAUSE 
  

The District Court rejected petitioner's claim that jury 

instructions contravened due process guarantees as defined in 

Sandstrom v. Montana, 442 U.S. 510 (1979) and Mullaney v. Wilbur,   

  

421 U.S. 684 (1975). (Relevant portions of the instructions 

are set forth in the District Court's order, at R. 1266-68, 

  

n.21.) Under Sandstrom v. Montana, 442 U.S. 510 (1979), a jury 

instruction is unconstitutional if it ‘could be interpreted by 

the jury as creating a mandatory, rather than permissive, presump- 

tion on an element of the crime. Moreover, even if a trial court 

suggests that the presumption may be rebutted, the instruction 

ls unconstitutional if it fails to advise the jury that the 

presumption may be rebutted by "the defendant's simple presenta- 

tion of 'some' evidence," Id, ar 2455, 

The jury instruction here created a mandatory presumption, 

and thus the District Court erred when it concluded that no 

Sandstrom violation was present. 
  

The District Court concluded that, in the alternative if 

  

there was Sandstrom error, it was harmless (R. 1230). That 

holding was also error. Under the erroneous instruction, peti- 

tioner's jury could well have concluded that the burden had 

shifted to McCleskey to rebut the State's case once there was 

circumstantial evidence, however weak, that the shooting occurred 

with malice. Even if the jury had disbelieved McCleskey's 

co-defendant and Evans, the presumption filled in the gap for the 

State, shifting the burden to McCleskey. 

-24- 

   



It thus cannot be said, on the basis of the facts presented 

to the jury, that the instruction was harmless beyond a reason- 

able doubt. The District Court erred in failing to grant peti- 

tioner a new trial on the murder count because of erroneous 

instruction. 

: IV. IN REJECTING PETITIONER'S CLAIM THAT SUBSTANTIAL 
* RACIAL DISPARITIES PERSIST IN GEORGIA'S CAPITAL 

SENTENCING SYSTEM, THE DISTRICT COURT MISAPPLIED 

CONTROLLING LEGAL PRECEDENTS, MISUNDERSTOOD BASIC 
STATISTICAL PRINCIPLES, AND IGNORED CLEAR RECORD 
EVIDENCE   
  

A. Introduction: Petitioner's Constitutional Claims 
  

Petitioner alleged that Georgia's capital sentencing system, 

under which his death was imposed, has been administered "arbi- 

trarily, capriciously and whimsically," (R. 17), and "pursuant to 

a pattern and practice ... to discriminate on the grounds of 

race," in violation of the Eighth Amendment and the Equal Pro- 

tection Clause of the Fourteenth Amendment (R. 18). The District 

Court, relying on Spinkellink v. Wainwright, 578 PFP.2d4 582 (5th 
    

Cir. 1978), held that petitioner's Eighth Amendment claim was 

not cognizable, irrespective of his proof, since Georgia's 

capital statutes had been found valid in Gregg v. Georgia, 428 

U.S..153 (1976) (BR. 255, 1133). 

In so holding, the District Court misread both Gregg v. 

Georgia, supra, and Furman v. Georgia, 408 U.S. 238 (1972), upon 
  

which Gregg is grounded. The Supreme Court did no more in Gregg 

than to uphold Georgia's capital stautes on their face. It has 

long been clear that a law "fair on its face and impartial in 

appearance" may nevertheless violate the Constitution in its 

-25=  



application, Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (188s), 

and the Supreme Court has expressly held that the Eighth Amend- 

ment imposes on a State the constitutional responsibility both 

"to tailor and apply its [capital punishment] law in a manner 
  

that avoids the arbitrary and capricious infliction of the death 

penalty," Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (emphasis 
  

added); accord, Zant v. Stephens, 456 U.S. 410, 413 (1982); see 
    

38180, Proffitt v. Wainwright, 685 P.24 1227, 1262 n.52 (11th 
    

Cir. 1982). Since petitioner's challenge is to the application 

of Georgia's capital statutes, the District Court erred in 

rejecting his Eighth Amendment claim as a matter of 1a. 

The District Court did permit petitioner to present evidence 

in support of his Fourteenth Amendment claim. Yet, in denying 

as "irrelevant" petitioner's discovery requests related to prior 

discriminatory conduct in the criminal justice system in Fulton   County and the State of Georgia, the District Court erred again, 

for such anecdotal evidence is plainly relevant to an Equal 

11/ 
Protection claim.— 

  

16/ Page constraints prevent petitioner from setting forth here 
a full constitutional argument in support of his Eighth Amendment 
claim. He agrees with and adopts the arguments advanced to this 
Court on behalf of James Lee Spencer. See Spencer v. Zant, No. 
82-8408, First Supplemental Brief for Petitioner-Appellant on 
Rehearing En Banc, dated December 28, 1983 (hereinafter "Spencer 
ist Br.") 51-54 (11th Cir.), and Second Supplemental Brief for 
Petitioner-Appellant on Rehearing En Banc, dated January 11, 
1984 (hereinafter "Spencer 24 Br.") 21-23, 27-28 (11th Cir.). 

    

17/ The District Court's insistance that prior discriminatory 
conduct -- especially by actors integrally involved in the admin- 
istration of the criminal justice system -- was "irrelevant" to 
petitioner's Equal Protection claim constitutes clear legal error. 
See, e.g., Rogers v. Lodge, 458 U.S. 613,624-27 (1983); Columbus 

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

  

  

(Continued) 

hw  



  

Nevertheless, we submit that the statistical case alone is 

sufficient to warrant relief. This Court has recognized that 

"[i]ln some instances, circumstantial or statistical evidence of 

racially disproportionate impact may be so strong that the 

results permit no other inference but that they are the product 

of a racially discriminatory intent or purpose," Smith v. 

Balkcom, 671 F.2d 858, 859 (5th Cir. Unit B 1982)(on rehearing); 

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

Petitioner's comprehensive statistical evidence on the operation 

of Georgia's capital statutes from their inception in 1973 

through 1979, demonstrating substantial, pervasive disparities 

based upon the race of the homicide victim and the race of the 

defendant, constitutes just the sort of "clear pattern, unex- 

plainable on grounds other than race," Arlington Heights v. 
  

Metropolitan Housing Authority, 429 U.S. 252 266 (1977), that 
  

the Supreme Court has held to establish an Equal Protection 

violation. It is to petitioner's evidence that we now turn. 

B. The Facts: Petitioner Has Made Out A Compelling 
Prima Facie Case Of Racial Discrimination In Capital 
Sentencing 
  

(i) Petitioner's Experts Were Well Qualified 
  

The statistical case-in-chief for petitioner was pre- 

  

17/ (continued) 

Washington v. Davis, 426 U.S. 229, 265-66 (1976). Having denied 
petitioner access to the records from which such discriminatory 
acts might have been proven, moreover, (R. 596; see Fed. Hab. 
Tr. 1797-99), the District Court should not have faulted peti- 
tioner for failure to introduce such non-statistical evidence as 
part Of its case~in-chief. (See R. 1141). If this Court's 
review of petitioner's substantial statistical evidence leaves 
the Court with any doubts about petitioner's prima facie claim, 
it should remand the case to the District Court for the receipt 
of this significant nonstatistical evidence. 

  

le  



sented through the testimony of two experts eminently qualified 

to investigate the very matters at issue. Professor David 

Baldus, petitioner's chief researcher, testified concerning his 

background and training in law as well as his extensive experi- 

ence in the development and use of social science methods to 

examine legal issues. Educated in political science at Pittsburgh 

and in law at Columbia and Yale Law Schools (Fed. Hab. Tr. 

39-42), Baldus has pursued a distinguished research and teaching 

career, focused upon the applications of social science methods 

to legal issues. His first major research effort, on the impact 

of certain social welfare laws, has subsequently "been reprinted 

in a number of books, and it's used in courses in sociology 

departments and in law schools to illustrate [time series] ... 

methodology as a way of trying to determine the impact the   
enactment of laws ha(s]," (id. $3=53).18/ 

As a result of consultations on that first project with 

Professor James Cole, a statistician, Baldus began an extended 

research collaboration with Cole on how courts should employ 

statistical evidence in evaluation of claims of discrimination 

(id. 54-55). The ultimate fruit of that effort is an authorita- 

tive tex: in the field, D., BALDUS & J. COLE, STATISTICAL PROOF 

: OF DISCRIMINATION (1980) (id. 68), widely relied upon by the 

federal courts in evaluating the quality of statistical evidence 

(Fed, Hab, Tr. 74-75; See DB6). 

As part of his research for that work, Baldus happened to 

  

18/ Baldus, "Welfare as a Loan: An Empirical Study of the 
Recovery of Public Assistance Payments in the United States," 25 
STAN. L. REV. 123 (1973). 

-28-  



obtain and reanalyze an extensive data set on capital punishment 

patterns collected in the mid-1960's by Professor Marvin Wolfgang 

Subsequently, Baldus also obtained and reviewed a second major 

data set on capital punishment patterns collected at Stanford 

University during the late 1950's and early 1960's (id.). 20/ 

Baldus further pursued his interest in capital punishment in a 

critical evaluation of the methodologies employed in two key 

studies on the deterrent value of capital punishment, published in 

a special 1975 symposium on the death penalty in the Yale Law 

2Y/ 
Journal.— 

Professor Baldus' research interest in capital punishment 

intensified after Gregg v. Georgia in 1976 into a principal focus 

of his work: 

During the succeeding seven years, Baldus devoted a major 

portion of his research (id. 84-100), writing (id. 85-90) 22/,   
and teaching energies (id. 90) to the post-Gregg capital punish- 

ment statutes and their administration, reviewing every Supreme 

Court case on capital sentencing and studying the professional 

  

19/ See Wolfgang & Riedel, "Race, Judicial Discretion and the 
Death “Penalty, 407 ANNALS 119 (1973). 

. 20/ See Special Edition, "A Study of the California Penalty 
i Jury in First Degree Murder Cases," 21 STAN. L. REV. 1297 
. (1969). 

s 21/ Baldus & Cole, "A Comparison of the Work of Thorsten Sellin 
and Isaac Ehrlich on the Deterrent Effect of Capital Punishment," 
85. YALE L. J. 170 (1975). 

22/ See DB 1 at 2; e.g., Baldus, Pulaski, Woodworth & Ryle, 
"Identifying Comparatively Excessive Sentences of Death," 33 
STAN. L. REV. 601 (1977); Baldus, Pulaski & Woodworth, "propor- 
tionality Review of Death Sentences: An Empirical Study of the 
Georgia Experience," J. CRIM. LAW & CRIMINOLOGY (forthcoming 
19833). 

DG  



literature on sentencing patterns in both capital and non-capital 

cases (id. 130-31; see DB 13) as part of his preparation for the 

two studies that formed the basis of petitioner's statistical 

case Selo. oY 

Petitioner's other expert on his case-in-chief was Dr. 

George Woodworth, an Associate Professor of Statistics at the 

Univeristy of Iowa. Dr. Woodworth testified that he had been 

trained as a theoretical statistician (id. 1195), specializing 

in nonparametric analysis of categorical data (the very sort of 

data at issue in petitioner's two studies) (id. 1197, 1200). 

While teaching at Stanford University, Dr. Woodworth developed 

an interest in applied statistics (id. 1200), and was invited by 

the National Research Council and its chief statistician, 

Frederick Mosteller, to conduct a formal review of the statisti- 

cal methodology used in a major national research project (id. 

1200-01) (which employed many of the methods Baldus and Woodworth 

ultimately incorporated into their own studies) (id. 154-58).   
Dr. Woodworth also served as the Director of Iowa's Statistical 

Consulting Center, advising researchers on appropriate statistical 

techniques for over eighty empirical studies (id. 1203-04). He 

has published widely in statistical journals (see GW 1, at 2-3), 

and is a member of the Committee on Law and Justice Statistics of 

the American Statistical Association (id. 1194) .2%/ 

  

23/ Baldus also served as a consultant on capital sentencing 
review to two state supreme courts (id. 94-96) and was at the 
time of the 1983 hearing a principal consultant to a Task Force 
of the National Center for State Courts, charged with developing 
appellate capital sentencing methods and standards (id. 97-100). 

24/ The District Court qualified Professor Woodworth in the 
"theory and application of statistics, and in the statistical 
vse @8nalysis of discrete] outcome data," (id. 1206). 

3)  



(ii) Petitioner's Data-Gathering Effort 
Was Carefully Conducted 
  

Petitioner's experts testified that they undertook 

two overlapping studies of the administration of Georgia's 

capital sentencing system in the post-Furman era. The first 

of these, designated the Procedural Reform Study ("PRS"), 

was designed to examine whether disparities in treatment, 

based upon race, could be found at two key "decision points" 

in the Georgia eysten: the prosecutor's decision, following 

a murder conviction, on whether to proceed to a penalty | 

trial, where a death sentence might be imposed, or to accept 

the automatic life sentence that follows any murder conviction 

under Georgia law; and the jury's decision, in those cases 

advancing to a penalty trial, on life imprisonment or death.   (id. 165-67)23/ The universe for the PRS was defined to 

include all defendants arrested between the enactment of 

Georgia's post-Furman capital statute on March 28, 1973 and 

June 30, 1978, who were subsequently convicted of murder - 

some 594 individuals (id. 170-71; 192). 

The second study, designated the Charging and Sentencing 

Study ("CSS"), was designed to examine possible racial discrimi- 

nation at all decision points from indictment forward, including 

prosecutorial plea bargaining decisions, jury decisions on 

conviction or acquittal, and the sentencing decisions encompassed 

in the PRS (id. 261). The CSS was framed to include a sample 

of persons indicted for both murder and for voluntary manslaughter 

  

25/ For a description of the statutory options available 
under Georgia law upon conviction for murder, see Gregg v. 
Georgia, supra, 428 U.S. at 162-66. 

  

  

-3 fw  



  

(id.) during the entire period from 1973 through 1978 (id. 

263-84) .28/ 

The data-gathering procedures have been summarized 

elsewhere (see Spencer lst Br., App. A 11-13, 17-23). We 

will here confine our attention to four aspects of that 

process: (a) the integrity of the data sources; (b) the 

strengtns of the data-gathering instruments employed; (c) 

the care and accuracy of the coding process; and the (4d) 

coding conventions employed. 

(a) The Integrity of the Data Sources 
  

Professor Baldus testified that, in choosing a State for 

study, he and his colleagues "were very much concerned about the 

availability of data" (id. 160). Baldus dispatched a colleague 

"to Georgia for a period of two weeks to find out what data were 

here that we could get access to, and he returned to Iowa with a 

glowing report about the many sources of data" (id. 174-75). 

These included not only the records of the Supreme Court of 

Georgia -- which typically contained trial transcripts, trial 

judges' reports, appellate briefs, and a summary card on each 

case (id. 175; 202-04; see, e.g., DB 29-33) -- but also back- 
  

ground information on each defendant in the files of the De- 

partment of Offender Rehabilitation (id. 175: 204-05) and victim 

information from the Bureau of Vital Statistics (id. 176; 205-06; 

see, e.g. DB 47). 
  

  

26/ The PRS does not involve a sample; instead it includes 
every individual within the universe. The CSS, by contrast, 
embraces a universe of 2484 from which a weighted sample of 
1066 cases was drawn by scientifically appropriate procedures 
(id, 265-73). 

“3D  



Most importantly, Baldus and his colleagues eventually lo- 

cated "an extensive file of information on all offenders" in the 

Board of Pardons and Paroles (id. 176), which became the basic 

source for the Charging and Sentencing Study. 

The official Pardons and Parole files, petitioner demon- 

strated to the District Court, are kept pursuant to a stringent 

state statute that requires the Board "to obtain and place in its 

permanent records as complete information as may be practically 

available on every person who may become subject to any relief 

which may be within the power of the Board to grant ... [inclu- 

ding] A. A complete statement of the crime for which such person 

is sentenced, [and] the circumstances of such crime ... E. Copy 

of pre-sentence investigation and previous court record ... [and]   H. Any social, physical, mental or criminal records of such 

person." (Former GA. CODE. ANN. § 77-512). L.W. Warr, a former 

field officer for the Board, now a field supervisor (Fed. Hab. 

Tr. 1327), testified that field officers (all of whom are re- 

quired to be college graduates) (id. 1329), are trained to "check 

local criminal records ... go to the clerk of court, get sentence 

information, indictments, jail time affidavits, we get police 

reports from the agency that handled the case" (id. 1330-31) .2/ 

  

27/ The District Court noted that "the police reports were 
missing in 75% of the cases [and] the coders treated the Parole 
Board summary as a police report" (R. 11671; see 1157). Officer 
Warr testified, however, that whenever the actual police reports 
were not included in Parole Board files, they were always sum- 
marized, and nothing "contained in the police reports ... would 
[be] Toutinely omiti{ted]l" (Fed. Hab. Tr. 1332; accord, id. 1331). 
Furthermore, Warr stated that, especially in homicide cases, field 
officers often went beyond the report to "interview the [police] 
officers that were involved in the case™ (id. 1332). Por this 
reason, the Pardon Board summaries were typically superior sources 
of information to the actual police reports themselves. 

  

-33~  



In homicide cases, moreover, Parole Board officers routinely 

speak, not only with the investigating police officers (id. 1332), 

but also with the District Attorney to obtain "his comments con- 

cerning the case" and "his impression regarding what happened at 

the, involving the particular crime" (id. 1333). The officers 

were guided in their investigation by a Field Operations Manual 

(LW 1), which contained the following instructions, 

among others: 

"3.02 ... The importance of this report cannot 
be over-emphasized; and where the offender 
has been convicted of crimes against the 
person, it is imperative that the Officer 
extract the exact circumstances surrounding 
the offense. Any aggravating or mitigating 
circumstances must be included in the report. 

  
%* * * 

"3.02 ... Circumstances of the offense - 

This should be obtained in narrative form, it 
should be taken from the indictment, the 
District Attorney's Office, the arresting 
officers, witnesses, and victim. A word 
picture, telling what happened, when, where, 
how and to whom should be prepared.” 

* * * 

The Parole Officer should be as thorough .as 
possible when conducting post-sentences on 
persons who have received ... "sentences in 

excess of fifteen years. In cases where 
arrest reports are incomplete the circum- 
stances of the offenses should be obtained as 
thoroughly as possible and the Parole Officer 
should review the transcript of the trial if 
available for detailed information. A per- 
sonal interview with the arresting or investi- 
gating officer is almost always a valuable 
source of information as the officer may 
recall important details and facts which were 
not revealed in the arrest report." 

(Id., at 2-4) The State offered no testimony to suggest that 

these standards were not regularly followed, or that the official 

«3d  



  

Parole Board record contained any systematic errors or omissions 

(id. 648: "we're not in a position at this point to challenge 

the underlying data source ... from the Pardons and Paroles 

Board") =-- much less any information that these files were sys- 

tematically biased according to the race of the defendant or the 

victin, 2 

Baldus acknowledged that some data were occasionally missing 

from the Pardons and Paroles files, as well as from the files of 

other agencies =-- the Georgia Supreme Court, the Department of 

Offender Rehabilitation, and the Bureau of Vital Statistics -- to 

which he also turned (id. 205-06). The only important categories 

of missing data, however, involved information on the race of the 

victim, on whether a penalty trial had occurred, and on whether a 

plea bargain had been offered (id. 586-88) .23/ Baldus took extra- 

ordinary steps to obtain this information from official files, 

even writing systematically to defense counsel and prosecutors to 

secure it where official sources failed (id. 587-88; see DB 

45, 46). Moreover, petitioner sought without success to secure 

  

28/ In light of this uncontradicted testimony, the District 
Court's findings that "[t]lhe information available to the coders 
from the Parole Board Files was very summary," (R. 1160), and 
that "[t]lhe Parole Board summaries themselves were brief" or 
"incomplet(e] (id.), are at least misleading, if not clearly 
erroneous. 

29/ Despite extensive testimony explaining the rationale under 
which the coders were instructed to code certain information as 
"U" or "unknown" in Baldus' questionnaires (see id. 444-45, 524- 
27, 1684-90), and further testimony on the scientific appropriate- 
ness of Baldus' use of the "U" code (id. 1761-64), the District 
Court suggests throughout its opinion that this accepted coding 
convention represents "missing data" (R. 1163-67). We deal with 
the "U" coding issue and its actual effort on Baldus' analyses at 
pages . 

-35-  



these data from respondent during the discovery process (R. 

556; 595-96; 399; 615). 

In the end, the amount of missing data proved scientifically 

insignificant. Only 5 of the 594 cases in the PRS lacked race- 

of-victim information (id. 1096; 1705-06); for the CSS, the 

‘number was 63 of 1066 (id.). Penalty trial information was missing 

in only 23 of the 594 for the PRS (id. 1104), in an estimated 20 

to 30 of 1066 cases in the CSS (id. 1119-21). Plea bargaining 

information -- information not on record facts about whether 

bargains were accepted and pleas entered, but rather more informal 

information on whether pleas had been unsuccessfully sought or 

offered (id. 1152-53) -- was obtained for sixty percent of the 

cases (id. 1153). As petitioner's expert noted (id. 1765-66; 

see Fed. Oct. Tr. 82) and as commentators have agreed, missing   data at a rate of 10 to 12 percent normally does not produce any 

systematic bias in ultimate outcomes, see, e.g. Vuyanich v. 
    

Republic Nat'l Bank of Dallas, 505 F. Supp. 224, 257 (N.D. Tex. 
  

1980), vacated on other grounds, 723 F.2d 1195 (5th cir. 1984).3% 
  

(b) The Quality of the Data-Gathering Instrument 
  

During the data collection effort for the PRS and the..CSS, - 

Baldus and his colleagues developed and employed three separate 

questionnairies -- two for the PRS, and a third, modified and 

improved instrument for the CSS. The initial PRS "Supreme Court 
> 

  

30/ To confirm those theoretical judgment, Baldus testified 
that he performed a wide range of alternative analyses, including 
those specifically recommended as appropriate by respondent's 
experts (id. 1501), precisely in order to see whether these 
missing data might have affected the persistent racial disparities 
that he found (id. 1101; 1694-1708). None did. 

-36=-  



Questionnaire" (see DB 27) was 120 pages in length , devised 

through a lengthy drafting process. "We sought to identify," 

Baldus testified, "any variable that we believed would bear on 

[the] matter of the death worthiness of an individual offender's 

case ... relating to the nature of the crime, the personal charac- 

teristics of offender, characteristics of the victim" (id. 194-95). 

od The initial Supreme Court Questionnaire proved of unwieldy 

length for use in the field (id. 208). Therefore, although 330 

cases in the PRS study were eventually coding using this instru- 

ment (id. 200; see DB 28, at 2), Baldus developed a revised   version, designated the "Procedural Reform Questionnaire" (see 

DB 35). The Supreme Court Questionnaire was actually coded in 

Iowa, by coders who employed copies of original court documents 

obtained from official Georgia files (see, e.g., DB 29-33), as 
  

well from detailed abstracts of the files and a written case 

summary provided on each case by Baldus' Georgia coders, (see DB 

33) (Fed. Hab. Tr. 208-15). However, the 351 Procedural Reform 

Questionnaires were all filled out in Georgia, in the offices of 

the public agencies involved, with "the source document literally 

at [their] fingertips when [they] did the coding" (id. 366). 

One major feature of both PR3 questionnaires (as well as 

the CSS questionnaire) was their inclusion of a "narrative 

summary" section, in which the coders could register important 

information that was not otherwise covered the questionnaire. 

As Professor Baldus explained, "([w]e had no illusion that our 

questionnaire could capture every Auancs of every case. But we 

wanted to be able to record that somehow. So we entered that 

“3 7-  



information on these ... summaries" (id) 2A Baldus also 

created an "other" category for certain questions to permit a 

coder to include unforeseen but possibly relevant information.32/ 

Despite the comprehensiveness of the PRS instruments, the 

CSS questionnaire (see DB 38) marked a substantial improvement 

in several respects. First, Baldus included a number of vari- 

ables to capture the strength of the evidence (Fed. Hab. Tr. 

274-75). Second, he added additional variables on legitimate 

aggravating and mitigating factors (id. 274). Third, Baldus 

virtually abandoned the "foil entry" format employed in the PRS 

questionnaires, under which a coder could occasionally find too 

few foils on which to enter relevant data in response to partic- 

ular questions id.) A   
  

31/ The District Court apparently misconceived Baldus' testi- 
mony concerning these summary documents, stating that "an 
important limitation placed on the data base was the fact that 
the questionnaire could not capture every nuance of every case. 
R. 239" (R. 1159). In fact, the summaries were included pre- 
cisely to permit Baldus to capture such nuances. 

32/ The District Court also treated this "other" coding feature 
as if it were a deficiency in the questionnaire design, not an 
asset (R. 1168). In fact, it permitted Baldus to capture addi- 
tional information and determine whether some unforeseen factor. 
may have had a systematic impact on his analyses (id.- 1708-09). 
Baldus re-analyzed the "other" response in some of—-his alterna- ~=—=- :- 
tive statistical analyses, finding that their inclusion "had no 
effect whatever. It in no way diminished the racial effects. In 
fact, it intensified them slightly" (id. 1710). 

33/ The District Court faulted the questionnaires for their use 
of the foil method (R. 1159-60), without making clear that this 
method was largely a feature of the PRS study =-- which played 
only a minor role in Baldus' analyses. Almost all of the major 
analyses were conducted on the CSS data (id. 1437). Even so, as 
a check on the impact of the foils, Baldus identified some 50 PRS 
cases in which there was "overflow information ... that wouldn't 
fit into the original foils," recoded all of the important 
variables from the PRS in which the foil method had been employed, 
re-ran his analyses and "found that the results were identical, 
and in fact, the race effects became somewhat intensified when 
this additional information was included" (id. 1099-1100). A 
recoding of the only two items on the CSS questionnaire that had 
retained the foil method obtained identical results (id. 1101). 

“38  



The State's principal expert conceded that the CSS instru- 

ment was "an improved questionnaire" (id. 1392); indeed, respon- 

dent never proposed or identified any variables or set of vari- 

ables, not included in the analyses, that might have eliminated 

the racial disparities reported by Baldus (id. 1609). 

(¢c) The Care Employed in Coding 
  

The coding process for both studies employed "state-of-the- 

art" procedures designed to ensure uniform, accurate collection 

of data. Initial coding for the PRS study was overseen by a law 

graduate (id. 207-05) who developed with Baldus a written 

"protocol," a series of careful instructions to coders meant to 

achieve consistent treatment of issues by regularizing coding 

practices (id. 227-23; see DB 34). 

To complete the questionnaire for the CSS study, Baldus 

employed as his supervisor Edward Gates, one of the two coders 

who had earlier worked on the PRS study (id.). He recruited 

five coders in a nationwide law school search (id. 301); Baldus   
flew to Georgia for a week in June of 1981 to train the students, 

/ explain the extensive written protocol (id. 310-1133 ; See DB 

43) and code practice questionnaires with them (id. 309). 

Throughout the summer, Baldus maintained daily telephone contacts 

with Gates and the coders to resolve any issues presented by the 

coding (id. 400). 

The State's expert purported to test the coders' accuracy, 

not by checking questionnaires obtained through discovery 

  

34/ The written protocol, as this Court can observe from even a 

quick review (see DB 43), involved hundreds of instructions on 
both general coding issues and specific issues for particular 
questions. The District Court's statement that "the coders were 
given two general rules to resolve ambiguities of fact" (R. 1157) 
does hardly justice to the care taken in providing guidance to 
the coders. 

-30~  



  

against files in the State's possession, but by running computer 

comparisons on those cases included in both the PRS and CSS 

studies. This computer check generated a list of ostensible 

"mismatches" which the State implied were indicative of multiple 

coding errors. The District Court apparently credited this 

argument (R. 1162). 

The State's expert admitted, however, that in compiling 

"mismatches" he had made no attempt to compare the coding 

instructions from the PRS and CSS protocols, to see whether in 

fact coders had been following identical rules (id. 1447). In 

fact, as Baldus and Gates both testified, instructions for cod- 

ing items in the two studies were often quite different. As a 

general example, in the PRS, coders were required to draw reason- 

able inferences from the file (id. 367); in the CSS, they were 

not (id.). By way of further example, protocols for the coding 

of the (b)(3), (b)(7) and (b) (10) aggravating circumstances were 

very different in the PRS and CSS studies. In short, as the 

State was forced to concede, "I don't believe Dr. Ratz is indi- 

cating either one is necessarily right or wrong in ‘his judgment. 

He's just indicating he's done a computer count and found these 

inconsistencies" (id. 1444). 

Professor Baldus testified on rebuttal that he had performed 

an extensive analysis of the State's alleged mismatches, employ- 

ing the official file materials and the narrative summaries, to 

determine whether the inconsistencies represented coding errors, 

rather than differences in PRS and CSS coding instructions or 

differences due to data sources relied upon (id. 1718-19) (many 

of the PRS cases were coded from Georgia Supreme Court materials, 

“ld One  



  

whereas all of the CSS cases were coded from the Pardons and 

Paroles Board files). Baldus reported that "the 

average mismatch rate was 6 percent, of which one percent ... 

were attributable to either a coding error or a keypunching 

error Or data entry error of one sort or another" (id., 1719). 

Baldus added 

"that translates into an error rate of approximately 
one-half of one percent in each of the two studies. 
However, we found on further examination that ... 
the error rate in the Procedural Reform Study was 
higher than it was in the Charging and Sentencing Study. 

(Id. 1719-20). Since the CSS study was the basis for most of 

Baldus' analyses (id. 1 ), it appears that the actual error 437 
35/ 

rate was extremely low. 

(d) The Basic Coding Conventions 
  

The State vigorously attacked one coding convention relied on 

by Baldus and his colleagues throughout the PRS and CSS studies: 

the use of a "U" or "unknown" code. Edward Gates explained that 

coders were instructed to enter a "1" if a fact were "expressly 

stated in the file" (id. 444), a "2" if the fact were "suggested 

by the file but not specifically indicated" (id. 444-45), a 

blank if the fact were inconsistent with the file, and a "U" if 

  

35/ The District Court noted that there were inconsistencies 

between the coding of "several variables" for petitioner McCleskey 
and his co-defendants (R. 1161). The Court's only reference is to 
testimony indicating that in the PRS study, petitioner McCleskey 
was coded as having three special aggravating factors while 
co-defendant Burney is coded as having only two. Gates testified 
that coding provisions for co-perpetrators in the CSS study were 
"far superior ... in terms of precisely defining the differences 
between the roles that the different actors in the crime played" 
(id. 471). Once again the discrepencies appear to pose no threat 
to Baldus' analyses, which were largely based on CSS data. 
Indeed, although different coders were allowed to code the cases 
Of co-perpetrators in the PRS (id. 1110-13), for the (CSS, Baldus 
developed the practice of having a single coder complete ques- 
tionnaires on all co-perpetrators (id. 1124-25). 

ll Joe  



  

the coder could not classify the item based on the file (id.). 

As Professor Baldus explained: 

"What an unknown means basically as it's coded in 
the Charging and Sentencing Study is that the ... 
information in the file, was insufficient to 
support an inference as to the occurrences or the 
non-occurrence of the event.... The idea was that if 
the file would not support an inference of an occur- 
rence Or non-occurrence, then we would further presume 
that the person who created that file or who had the 
information that was available in that file would be 
in a state of ignorance with respect to that fact. 

Furthermore, upon the basis of my knowledge of 
decision making and also on the basis. of my prac- 
tical experience, when people are ignorant about 
a fact, that fact does not become a determinant 
in the decision making. 

(Id. 1684-85). 

In sum, while the CSS instrument permitted the coders to 

reflect the distinction between the affirmative non-existence of 

a fact in the file (coded blank), and uncertainty about its 

possible non-existence (coded "U"), once statistical analysis 
  

began, the "U" was properly recoded as not present. 

Baldus offered as an example of this logic the aggravating 

variable that the "victim pled for his life." If there had been 

witnesses present during the crime, a coder would code that . 

variable either present or absent, depending on the witnesses’ 

accounts. But if there were no witnesses or other evidence, 

Baldus reasoned there was no way to make an inference either 

way, and the item would be coded "U" (id. 1685-86; see also id. 
  

36 
1155-58) . = 

  

36/ The District Court's counter-example completely missed the 
point. Twice the Court adverted to a case in which the defendant 
told four other people about the murder, but in which the coder 
was unable to determine from the file whether the defendant had 

(Continued) 

ag  



  

This explanation casts in a radically different light the 

District Court's ominous-looking list of variables coded "U" in 

more than ten percent of the data (R. 1163-65). Many involve 

either state-of-mind or relational variables that are often 

unknown to any outside investigator. For example, while 

"Defendant's Motive was Sex" may be important if known to a 

prosecutor or jury, if the fact can be neither eliminated nor 

confirmed from the evidence, Baldus' rule would be to code it 

"unknown," and ultimately discount its impact either way by 

treating it as non-existent. | 

The District Court appeared to challenge the basic logic of 

this coding treatment: "the decision to treat the "U" factors 

as not being present in a given case seems highly questionable 

«eo. it would seem that the more rational decision would be to 

treat the "U" factors as being present" -(R. 1163). Yet no 

expert in the case -- neither petitioner's (id. 1184-90 (Baldus); 

  

36/ (continued) 

been bragging or expressing remorse. (R. 1160, 1161-62). The 
Court reasoned that "[als the witnesses to his statement were 
available to the prosecution and, presumably, to the Jury, that 
information was knowable and probably known. It was not, 
however, captured in the study" (R. 1160). 

The Court's reasoning assumes that the defendant must have 
either been bragging Or expressing remorse, and that the prose- 
cutor, by interviewing the four witnesses, must have ascertained 
which. It is equally likely, however, that the defendant told 
others about the murder without either bragging or expressing 
remorse. In that case, the file would properly reflect the 
contact with the witnesses, but would not reflect bragging or 
remorse. Under Baldus' rules the coder would code "unknown" and 
the bragging and remorse would ultimately be treated as not 
having occurred. Only if the prosecutor and jury had known of 
bragging or remorse, but the parole officer had somehow failed 
to learn of it in his review of the transcript, in his talks 
with the police and the District Attorney, or in his review of 
police files, would "U" be a misleading code. 

-i3~  



  

1761-63 (Berk)) nor respondent's (id. 1503; (Katz); 1656-58 

(Burford) ) suggested that a "U" should be coded as "1" or "present" 

for purposes of analysis. Indeed, Dr. Berk, petitioner's 

rebuttal expert, testified that the National Academy of Science 

panel on sentencing had expressly considered this issue during 

its two-year study of sentencing research and had endorsed the 

very approach Baldus adopted (id. 1761-63). The District 

Court's conclusion that a contrary code should have been used 

is without foundation in the record. AY 

(iii) The Statistical Methods Were Valid and Appropriate 
  

Having gathered and compiled their data, Baldus 

and his colleagues employed a wide variety of statistical 

procedures to analyze it, including cross-tabular comparisons 

(id. 683, 701-05), unweighted least squares regressions (id. 

689-700) , weighted least squares regressions (id. 1222-25), 

logistic regressions (id. 917-18), index methods (id. 1234-36), 

and qualitative case comparisons, or so-called "cohort" studies 

(id. 1043-59). 

Baldus employed these methods on progressively more elaborate 

"models," or groups of variables chosen to determine whether the 

race-of-victim and race-of-defendant disparities could be reduced 

  

37/ Moreover, Baldus testified that, among a series of alterna- 
tives analyses he conducted to test the effects of his "U" coding 
rules (see generally, Fed. Hab. Tr. 1194-1704 and DB 120-123), 
he recoded unknowns as "1" or "present" just as the Court had 
recommended. The effects on racial disparities "were within a 
percentage point of one another and all the co-efficients that 
were statistically significant in one analysis were in the 
other" (id. 1701). Another alternative analysis, employing 
"list-wise deletion" of all cases with "U" codes, recommended by 
the State's principal expert, (id. 1501-02), also had no adverse 
effect (id. 1695-96); see DB 120); indeed it increased the 
race-of-victim coefficient by two percentage points. 

  

4d  



or eliminated: Baldus explained that no single methods of 

statistical analysis, and no single model, was invariably infall- 

ible, but that if statistical results could persist, no matter 

what methods were employed, a researcher could have great confidence 

that the "triangulated" results reflected real differences: 

It's this widespread consistency that we see in the 
i results ... it's this triangulation approach, if you 
C- will, that provides the principal basis for our 

opinions that there are real racial effects operating 
in the Charging and Sentencing System." 

(Id. 1082-83). 

The District Court failed throughout to appreciate the 

logic of this approach. Instead it rigidly, and petitioner 

submits erroneously, refused to admit "except as to show process” 

a series of relevant models, solely because they did not include   
variables the Court thought should be included (see id. 742-46; 

755; 760; 768; 771-73; 779: 981-82; 984). Indeed, the Court's 

approach throughout the hearing was to fault Baldus' models for 

failure to account for unspecified "unique" factors (e.qg., id. 
38/ 

925; Fed. Oct. Tr. 92). = The Court reasoned -- contrary to 

the expert testimony of Baldus (Fed. Hab. Tr. 808-19); Woodworth 

(Fed, Oct, Tr. 55); and the State's expert Dr. Burford (id. 1673) 

  

38/ The Court also overlooked in its opinion that, at the 
invitation of petitioner's experts, it was able to test its 
own "Lawyer's Model," constructed by the District Court during 
the August 1983 hearing to reflect those factors it believed to 
be most likely to predict the sentencing outcome (id. 810; 1426; 
1475-76; 1800-03; see C-1). Baldus' subsequent analyses employ- 
ing the Court's own model showed sharp differences in sentencing 
outcomes by racial category (R., 735, 738). Strong and statis- 
tically significant race-of-victim effects were reflected upon 
regression analysis, whether employing the least squares (R. 
738) or the logistic approach (R. 739), and Baldus averred that 
these analyses further reinforced his earlier testimony. (See 
generally, R. 731-752). 
  

ll Ge  



  

-- that since Baldus testified that he had identified 230 

variables that might be expected to predict who would receive 

death sentences, "it follows that any model which does not 

include the 230 variables may very possibly not present a whole 

picture” (R. 1171). If respondent had demonstrated that peti- 

tioner's racial disparities only appeared in smaller models, but 

disappeared or were substantially reduced whenever 230-variable 

analyses were conducted, the District Court's position would 

rest on logic and precedent. Since, however, as we will demon- 

strate below, the race-of-victim disparities continue to show 

strong effects in large models as well as small, the District 

Court's position is without support. As a matter of fact, it is 

clearly erroneous; not even the State's expert advanced such a 

contention. As a matter of law, it has no allies. No prior case 

has ever intimated that only large-scale models can constitute 

relevant evidence in a statistical case. See, e.g., Eastland v. 
    

Tennessee Valley Authority, 704 F.2d 613, 622-23 n.14 (11th Cir. 
  

1983). 

(iv) The Results Make Out A Prima Facie Case 

Of Racial Discrimination 
  

To begin his analysis, Baldus first calculated sentenc- 

ing outcomes by race, unadjusted for any additional variables or 

39/ 
background factors.— The pattern he found (DB 63) revealed 

40/ 
marked racial disparities: 

  

39/ Each of these analyses was conducted on the CSS data, unless 
otherwise noted. 

40/ These results closely parallel earlier Georgia findings. 

Bowers & Pierce, "Arbitrariness and Discrimination under 
Post-Furman Capital Statutes," 26 CRIME & DELINQ. 563, 599 
(1980). 

lif  



Black Defendant/ White Defendant/ Black Defendant/ White Defendant/ 

      

White Victim White Victim Black Victim Black Victim 

«22 .08 +0] +03 

(50/228) (58/745) (18/1438) (2/64) 

(id. 730-31) 

However, Baldus made it clear that "[t]his table merely generates 

an hypothesis ... it has no controls. There are many rival 

hypotheses that could explain these relationships" (id. 731). 

Baldus thus began a series of analyses, steadily adding 

background variables to his multiple regression analyses, 

thereby "controlling for" or holding constant the effect of those 

factors, to see if an independent racial effect would persist.   
Baldus found strong racial effects when he controlled for all of 

Georgia's statutory aggravating circumstances (DB 78) and in 

addition, for 75 mitigating factors (DB 79). In DB 80, Baldus 

presented an important table which compared the racial effects 

in several, increasingly complex models. Excerpts from that 

table reveal the following: 

  
    

After further After 
Before After Adjust- Simultaneous Simultaneous 

Adjustment ment for the Controls for Control for 
for any Back- Other Vari- Nine Background 230 + Non Racial 
ground Factors able Racial Variables Factors 

Race of 

Victim +10 «17 «07 .06 
{.0001) (.0001) {.001) {.01) 

Race of 

Defendant -.03 + 10 .04 .06 
{.03) (.001) {.10) {.01) 

: il 41 ty 
Baldus noted that while the coefficients™ for race-of-victim 

declined somewhat as additional background variables were added 

  

41/ Professor Baldus testified that a regression coefficient 
is a summary figure that provides the average disparity, with 

(Continued) 

5 he  



  

to the analysis, and that while the measures of statistical 

significance also declined, 2% both figures remained signifi- 

cant. Baldus explained that it is "quite unusual to see an 

event like that," since so many of the 230 variables were 

themselves correlated with both the race of the victim and the 

sentencing outcome, a fact that could be statistically expected 

to suppress the magnitude of the racial variable (id. 804). 

To examine the relative power of the race-of-victim 

+ and race-of-defendant variables in sentencing decisions, Baldus 

compared them with other important sentencing variables, rank- 

ordered by their coefficients (DB 81, 82). The impact of the 

race-of-victim variable proved of the same order of magnitude 

as major aggravating factors such as whether the defendant had 

a prior record of murder, or whether the defendant was the 

prime mover in the crime (id. 812-15). 

Baldus then continued his analyses, looking at other 

models that might eliminate the racial effects. Petitioner's 

Exhibit DB 83 includes a variety of such models, some employing 

all 230 of Baldus' recoded variables. All of these models show 

  

41/ continued 

and without the presence of a variable, across all the cases 
(id. 690-94). A coefficient of .06 for a variable means that 
the presence of that variable, after controlling for all other 
factors in the model, would increase the outcome of interest 
(here, a death sentence) by an average of six percentage points 
(id. 692-93}, 

42/ Statistical significance, Baldus explained, is a measure 
of the likelihood that, if in the universe of cases as a whole 
there are in fact no disparities, one could have obtained 
disparate results merely by chance (id. 712-15). Normally 
expressed in "p" values, a figure of .01 means the likelihood 
that the coefficient is merely a chance finding is 1-in-100; a 
figure of .0001 would mean 1-in-10,000. 

-lG-  



  

43/ 
strong race-of-victim and race-of-defendant effects. 

I. W.L.S. REGRESSION RESULTS 
  

  

    
  

A B c 

Coefficients and Level 
Non-Racial of Statistical Significance 
Variables in 
The Analysis Race of Victim Race of Defendant 

a) 230 + aggravating, .06 .06 
mitigating, evidenti- {.02) (+02) 
ary and suspect 
factors 

b) Statutory aggravating «07 .06 
circumstances and {.01) (.01) 

126 factors derived 

from the entire file 

by a factor analysis 

¢) 44 non-racial vari- +07 .06 
ables with a statisti- (.0002) (.0004) 
cally significant 
relationship (P<.10) 
to death sentencing 

d) 14 legitimate, non- .06 .06 
arbitrary and statis- (.001) {.001) 
tically (P<.10) sig- 
nificant factors 
screened with W.L.S. 
regression procedures 

e) 13 legitimate, non- .06 .05 
arbitrary and statis- {.001) {.02) 
tically significant : 
(P<.10) factors 
screened with logistic 
regression procedures 

Baldus adopted yet a different approach to analyze 

precisely where in the system the racial effects were having 

their impact. Employing a recognized social science technique, 

  

43/ In light of DB 81 and DB 83, as well as DB 102 and DB 105, 

the District Court was clearly erroneous in asserting that 
"[tlhe best models which Baldus was able to devise which 
account to any significant degree for the major non-racial 
variables, including strength of the evidence, produce no 
statistically significant evidence that race plays a part in 
either of those decisions in the State of Georgia" (R. 1187) 

-td G  



  

the "index method," (see id. 877, 1234-36) he sorted the cases 

into roughly equal groups based upon their predicted likelihood 

of receiving a death sentence (id. 877-79); he then analyzed 

racial disparities within those groups, which included increas- 

ingly more aggravated cases (see DB 89). Noting that the likeli- 

hood of a death sentence rises dramatically in the most aggravated 

groups, Baldus further divided the top groups into eight subgroups 

for analysis. As the excerpted portion of that table (DB 90) 

reveals, there are clear race-of-victim differences -- especially 

in the middle range of cases -- which are statistically significant 

overall at a .01 (1=-in-100) level. 

  

    
  

A | B c 2 E 
Predicted Average 
Chance of Actual Death Sentencing Arithmetic 

a Death Sentencing Rates for Black Difference 
Sentence Rate for Defendant Involving in Rate of 
1 (least) the Cases White Black the Victim 
to 8 at Each Victim Victim Rates 
(highest) Level Cases Cases {Col. C~ Col. DD) 

1 .0 «0 0 

(0/33) (0/9) (0/19) 0 

2 «0 0 .0 0 
(0/55) (0/8) (0/27) 

3 .08 30 11 «19 
(6/76) {3/10) (2/18) 

4 «07 a3 «0 vos 
(4/57) (3/13) (0/15) 

5 $27 «33 vi? +18 
{15/58) (9/26) (2/12) 

6 +17 «35 05 «33 
(11/64) (3/8) (1/20) 

7 .88 «91 75 +16 
(51/58) 120/22) (6/8) 

Baldus observed that there was little disparity in the less 

aggravated cases, "[b]lut once the death sentencing rate 

begins to rise, you'll note that it rises first in the white 

5 J  



victim cases. It rises there more sharply than it does in the 

44 
black victim cases" (id. ss2-83) . 2 Baldus testified that, 

in his opinion, these data supported an hypothesis first advanced 

by Harry Kalven and Hans Zeisel in their work, THE AMERICAN JURY 

164-67 (1966), 

"what they call the liberation hypothesis and in short 
what it was, that the exercise of discretion is concen- 
trated in the area where there's real room for choice. 

[Wlhen you look at the cases in ... the midrange, 
where the facts do not call clearly for one choice or 
another, that's where you see there's room for exercise 
of discretion ... the facts liberate the decision 
maker to have a broader freedom for the exercise 
of discretion, and it is in the context of arbitrary 
decisions that you see the effects of arbitrary or 
possibly impermissible factors working. 

(Id. 844) 

Baldus and Woodworth marshalled a substantial body of 

evidence in support of this liberation hypothesis during the 

evidentiary hearing. The most striking illustration was the 

figure constructed by Woodworth to illustrate the differential   rates at which the likelihood of receiving a death sentence rises 

in Georgia for black victim and white victim cases, given similar 

levels of aggravation. Woodworth noted that, according to this 

graph, petitioner Warren McCleskey's level of aggravation 

"place([s] him in a class of defendants where there is roughly a 

  

44/ The District Court apparently misunderstood those tables. 
It noted, as if the fact were contrary to Baldus' testimony, 
that DB 89 reports "higher racial disparities in the most aggrav- 
ated level of cases," (emphasis added). It also discounted the 
results in DB 90 because, unlike DB 89, it was purportedly not 
"predicated on a multiple regression analysis" (R. 1205). In 
fact, the liberation hypothesis predicts that disparities would 
exist only at the higher levels of DB 89, a table that includes 
all cases -- most of them very unaggravated. It is only in DB 90, 
which comprises the subset of cases in which the risk of a death 
sentence becomes significant, that the disparities in the middle 
range appear. (Fed. Hab. Tr. 882-83) Like DB 89, moreover, DB 90 

was built by employing regression analysis; the Court's surmise to 
the contrary is clearly erroneous. 

-5 lw  



Gwe 

Figure 2: Midrange’ Model With Interactions and Nonlinearities-- 
Black Defendants 

  

  

      
25. 4 

pod ; McCleskey 

» T » be ie be 5 

: 0 .6 8 Lo og 

™ LEVEL OF AGGRAVATION 

a/ re ; 
=’ The curves represent 95% confidence bounds on the average death 

sentencing rate at increasing levels of aggravation (redrawn {rom 

computer output).  



  

twenty percentage point of greater disparity between black victim 

cases [and] ... white victim cases," (id. 1734-35). 

[See GW 8] 

Baldus performed a wide variety of further analyses 

which we cannot fully review within the confines of this brief. 

« A few, however, require additional attention. The District Court, 

unguided by experts for either petitioner or respondent, suggested 

that DB 95 was "perhaps the most significant table in the Baldus 

study," since it "measures the race of the victim and the race of 

the defendant effect in the prosecutorial decision to seek the 

death sentence and the jury decision to impose the death sentence" 

- (R. 1185). The Court noted that "[t]lhe coefficients produced by 

the 230-variable model on the Charging and Sentencing Study data 

base [in DB 95] produce no statistically significant race of the 

victim effect either in the prosecutor's decision ... or in the 

jury sentencing decision" (R. 1186). 

The Court's statement in a literal sense is accurate. 

It disregards, however, that the CSS figure, P=.06, is in fact 

marginally significant; that the equivalent PRS model does pro- 

duce a statistically significant resulta’ that the smaller 

46 
model results were highly significant; 1¢/ and that an analysis 

  

45/ The Court discounted this figure as "totally invalid 
for [the PRS Model] contains no variable for strength 
of the evidence" (R. 1185). In so doing, it ignored Baldus' 
obvious point that strength of the evidence was substantially 
controlled for in the PRS, since the universe was limited by 
definition to cases in which a conviction -- presumably based 
on evidence sufficient beyond a reasonable doubt -- had 
been obtained (Fed. Hab. Tr. 124-25). 

46/ The Court stated that it "knows of no statistical convention 

which would permit a researcher arbitrarily to exclude factors on 
she basis of artificial criteria” (R., 1186). 'Baldus in fact 
testified without contradiction that such a procedure is commonly 
used in statistical analyses. (The State's principal expert 
employed a variant of it throughout his testimony.) (See, e.g9., 
Resp, Ex. 26, 43, 45, 50). 

  

ly 

 



  

of the combined effect of the prosecutorial and jury decision 
  

(see DB 98) showed a series of highly statistically significant 

race-of-victim effects. In truth, what the Court has done is to 

identify one of the very few large model coefficients for the 

race-of-victim variable in either study that is not statistically 

significant, brand it as a key figure, and then disparage all 

collateral evidence that places it in context. Such an approach 

to petitioner's comprehensive statistical evidence constitutes a 

legally insufficient basis to reject petitioner's persistent 

racial tindings 2 

The second series of analyses that require comment 

are those directed toward Fulton County (where petitioner was 

tried) and toward petitioner's own case. Baldus conducted both 

quantitative and qualitative studies of death sentencing rates 

in Fulton County which were reflected in DB 106 through DB 116.32 

Baldus testified that a repetition in Fulton County of the pro- 

gressively more elaborate analyses he had conducted statewide 

"showed a clear pattern of race-of-victim disparties in death 

sentencing rates among the cases which our analyses suggested . 

were death eligible" (id. 983). Regression analyses~at ‘succes= = 

  

47/ The District Court also chose to impugn the integrity 
of petitioner or his experts in discussing this exhibit, 
noting that "we are given no outcomes based on _the larger . .. 
scaled regression," although the Court "does not understand. 
that the analysis was impossible, but instead ... that 
because of the small numbers the result produced may not have 
been statistically significant" (R. 1187). The Court is 
wrong; such analyses employing these small numbers are 
statistically inappropriate. See e.g., Halinski and Feldt, 
"The Selection of Variables in Multiple Regression Analysis," 
7 J. EDUC. MEASUREMENT, 151 (1970). We note, morever, that 
both in this table and elsewhere, petitioner and his experts 
regularly reported non-significant findings even when statisti- 
cal procedures could be appropriately conducted upon them. 

  

48/ The District Court refused to admit DB 106 (id. 979), 
DB 107 (id. 981-92), and DB 108 (id. 984), holding that because 
they did not sufficiently control for background variables they 
were irrelevant. This holding is legally erroneous. 

-53 

 



  

sive stages in the charging and sentencing process revealed highly 

significant racial disparities at two points: the prosecutor's 

plea bargaining decision and the prosecutor's decision to advance 

a case to the penalty phase (id. 1038-39). While Baldus necessar- 

ily tempered his evaluation of these results because of the small 

size of the universe (id. 1040-43), he noted that "these coeffi- 

cients are very large, it's not as if we're dealing with small 

coefficients, these are substantial. So that leads me to believe 

that what you're seeing is evidence of a real efficient" (id. 1044). 

To supplement this statistical picture, Baldus con- 

ducted two eohort studies; one of the "near neighbors" cases, 

those which scored most like petitioner McCloskey in an overvall 

"aggravation index" (id. 986-91). Having identified 32 near 

neighbors, Baldus sorted them into typical, more aggravated, and 

less aggravated groups (id. 991). Computing death sentencing 

rates by race of victim and race of defendant, Baldus found sig- 

nificant disparities; in McCleskey's group, the disparity was 

«40. (14. .993). 

In a second cohort study Baldus examined 17 defendants 

involved in the homicides of police officers. Two among the 

seventeen, including petitioner McCleskey, went to a penalty 

trial. The other defendant, whose police victim was black, 

received a life sentence (id. 1050-62; DB 116); petitioner's 

sentence was, of course, death. "[T]he principal conclusion 

that one is left with," Baldus testified, "is that ... this 

death sentence that was imposed in McCleskey's case is not 

consistent with the disposition of cases involving police 

officer victims in this county" (see also 1085-86). 
  

Finally, Dr. George Woodworth, petitioner's expert 

statistician, testified concerning the likely impact of the 

Bl 

 



  

racial variables on a case at petitioner McCleskey's level of 

aggravation. Woodworth noted that, using his exhibit GW-8, 

he had computed the race-of-victim disparity at petitioner's 

level of aggravation to be 22 percentage points (id. 1738). 

He then turned to DB 90 and observed an 18 percentage point dis- 

parity by race at petitioner's level (id. 1739). Calculated by 

use of an unweighted logistic regression, the racial disparity 

was 23 percent (id. 1740). Woodworth concluded: 

So it would seem that at Mr. McCleskey's level of 
aggravation the average white victim case has approxi- 
mately a twenty percentage point higher risk of receiv- 
ing the death sentence than a similarly situated black 
victim case. 

(1d. 1740). 2% 

Petitioner's final expert was Dr. Richard Berk, 

a highly qualified social scientist (see RB 1) and a frequent 

consultant on criminal justice matters to the United States 

Department of Justice (id. 1753). Berk in fact had served on 

a distinguished National Academy of Sciences panel charged 

with reviewing all previous research on criminal sentencing 

issues in order to set standards for the conduct of such 

research (id. 1761-62). After receiving Baldus' studies, = ==. 

  

49/ Beyond this statistical and qualitative evidence on cases 
like petitioner's, petitioner introduced the deposition of Dis- 
trict Attorney Lewis Slayton (id. 1319). In that deposition, 
Slayton acknowledged that his office has no express written = 
or unwritten policies or guidelines to govern the disposition of 
homicide cases at the indictment stage (Dep., 10-12), the plea 
stage, (Dep. at 26) or the penalty stage (Dep., 31, 41, 58-59). 
Moreover, murder cases in his office are assigned at different 
stages to one of a dozen or more assistant district attorneys 
(Dep., 15, 45-48), and there is no one person who invariably 
reviews all decisions on homicide dispositions (Dep., 12-14, 
20-22, 28, 34-38). Slayton confessed that his office does not 
always seek a sentencing trial in a capital case, even when 
statutory aggravating circumstances are present (Dep., 38-39). 
Slayton testified further that the decisionmaking process in his 
office for seeking a death sentence is "probably ... the same" as 
it was in the pre-Furman period (Dep., 59-61). 

55m 

 



analyzing the data, and reviewing Baldus' preliminary report, 

Berk's opinion on Baldus' study, especially its findings on 

race, was virtually unqualified: 

This has very high credibility, especially compared 
to the studies that [The National Academy of Science 
panel] ... reviewed. We reviewed hundreds of studies 
on sentencing over this two-year period, and there's 
no doubt that at this moment, this is far and away 
the most complete and thorough analysis of sentencing 
that's been done. I mean there's nothing even close. 

(Id. 1766.) 

Berk's conclusion is fully warTAnted. The data was 

reliable and carefully compiled. The regression analyses 

relied upon by petitioner were properly conducted by leading 

experts in the field. These analyses were carefully monitored 

for possible statistical problems, and they have been found 

to be both statistically appropriate and accurate in their 

assessment of the presence and magnitude of racial disparities 

in capital sentencing in Georgia. These disparities are real 

and persistent; they establish petitioner's prima facie case. 

C. The Law: The District Court Misapplied the Law 
In Rejecting Petitioner's Prima Facie Case 
  

We have already pointed out many instances in- which   
the District Court misread the record, overlooked testimony, 

or made findings contrary to the evidence presented by 

both parties -- petitioner and respondent alike. Yet the 

: principal errors committed by the District Court on this 

record stem from its apparent misunderstanding of statistical 

proof, and its misapplication of controlling legal authority. 

In effect, the District Court created for itself a roster of 

new legal standards and principles to judge the quality of 

petitioner's data, the admissibility of his exhibits, the 

appropriateness of his models, and even the usefulness of 

-56~-  



multiple regression as a mode of proof. In fashioning this new 

jurisprudence, the District Court departed from well-established 

Supreme Court and Circuit precedent, requiring this Court to 

vacate and remand for further proceedings in compliance with 

appropriate legal standards. 

(i) Petitioner's Data Clearly Exceed Minimum 
Evidentiary Standards For Use In Regres- 
sion Analysis 
  

In assessing petitioner's statistical case, the 

District Court announced that "[m]Jultiple regression requires 

complete correct data to be utilized" (R. 1169); it clearly pro- 

ceeded to hold petitioner to such a standard. Although acknowl- 

edging that "the researchers attempted to be careful in [their] 

data-gathering," the Court complained that "the final data base   
was far from perfect," (R. 1159), noting that "[a]n important 

limitation" of the data was "that the questionnaire could not 

capture every nuance of every issue" (id.). The Court faulted 

the data sources (erroneously, see id. 1117) because they "con- 

talin] no information about what a prosecutor felt about the 

credibility of any witness" (R. 1160). Indeed, the Court appeared 

to hold that virtually any retrospective study would necessarily 

be insufficient: 

: To the extent that the records of the Parole Board 
- accurately reflect the circumstances of each case, 

they present a retrospective view of the facts and 
circumstances. That is to say, they reflect a view 
of the case after all investigation is completed, 
after all pretrial preparation is made, after all 
evidentiary rulings have been handed down, after 
each witness has testified, and after the defendant's 
defense or mitigation is aired.... Further, the file 
does not reflect what was known to the jury but only 
what was known to the police.... Consequently, the 
court feels that any model produced from the data base 
available is substantially flawed because it does not 
measure decisions based on the knowledge available to 
the decision-maker. 

(Rs 1172.) 

BE  



  

The Court's insistence on such a standard of proof 

was plain error. Statistical evidence of systematic racial 

discrimination in violation of the Fourteenth Amendment simply 

is not held to this pristine standard. To the contrary, it is 

the respondent who must shoulder a "heavy burden" to come forward 

with affirmative evidence that any "errors or omissions bias the 

data [and] ... that this bias alters the result of the statistical 

analysis in a systematic way," Vuyanich v. Republic National Bank, 
    

supra, 505 F. Supp. at 255-56, vacated on other grounds, 732 F.2d 
  

1195 (3th Cir. 1984); accord, Trout v. Lehman, 702 F.2d 1094, 
  

1101-02 (D.C. Cir. 1983); Detroit Police Officers Ass'n v. Young, 
  

608 P.24 671, 687 (6th Cir. 1979), cert, denied, 452 U.S. 938 
  

(1981); cf. International Brotherhood of Teamsters v. United 
  

States, 431 U.S. 324, 340 .n.20 (1977). 

This legal standard is well justified as a matter 

of scientific principle. Dr. Richard Berk indicated that missing 

data or errors "of the order of 10, 15 percent, almost never make 

a difference" in the outcome (Fed. Hab. Tr. 1766) .23/ Both 

Baldus and Woodworth stressed that "errors which are randomly = 

distributed with respect to the race of the defendant, or-the race 

of the victim, are not going to create a race of the victim dis- 

parity. In other words, they're not going to bias the effects" 

(id. 1727-28; gee id. 1720; Fed. Oct. Tr. 82). 

Here respondent offered no plausible explanation of 

how the use of its own official State files might have resulted 

in racial bias. Nor was there evidence that the data base was 

grossly flawed. The Court's chief criticism of the data stemmed 

from its misunderstanding of the logic and appropriateness of the 

"U" or "unknown" coding convention, which we have earlier shown to 

-58-  



  

be scientifically appropriate. The alleged "mismatches" have been 

largely accounted for as well. As for the small percentage of 

missing data with respect to the race of the victim, and on whe- 

ther plea bargaining had been sought and penalty trials held, 

Baldus himself called these to the Court's attention, and pro- 

ceeded to conduct a series of analyses =-- including every test 

suggested by the Court or the State, and others besides -- to 

discern whether "missing data" might affect his principal con- 

clusions. He found the changes in outcome to be uniformly 

insignificant. 

In short, since the District Court applied an incorrect 

legal standard in assessing petitioner's data base, its conclusion 

that the data "is essentially untrustworthy" must be rejected by 

this Court. 

(ii) Multiple Regression Analysis Is an 

Appropriate Means Of Proof 
  

The single gravest error into which the District 

Court fell was its conclusion -- only partially acknowledged 

during many points in its opinion, although plainly stated at 

others -- that multiple regression analysis is an inappropri- 

ate and unacceptable method of proof. At the outset of its __ 

opinion, the Court frankly expressed its preference for a 

simpler form of data analysis, the cross-tabular method: 

To determine whether or not race [is] .... being con- 
sidered [in the Georgia capital sentencing system], it 
is necessary to compare very similar cases. This 
suggests the use of a statistical technique known as 
cross tabulation. Because of the data available, it was 
impossible to get any statistically significant results 
method. R. 705. Accordingly, the study principally 
relies on multivariate analysis. 

(R. 1153.) Petitioner indeed presented the District Court with 

several cross-tabular analyses examining the impact of the racial 

50  



variables (See DB 66, 68, 71, 72, 76) (nearly all of which 

were statistically significant =o 

Yet petitioner's claim required more sophisticated 

proof, which petitioner also placed before the Court. Despite 

a careful attempt to illustrate the principles of regression 

analysis (see Fed. Hab. Tr. 639-700, 709-18, 317-18), the Court 

expressed skepticism throughout the hearing about whether regres- 

sions could actually work. (E.g. "I have: a threshhold concern 

about whether regression analysis is applicable to this aspiry 

[sic]") (Fed. Oct. Tr. at 61); "[Flundamentally, what I am trying 

to say, I don't understand regression analysis well enough to be   
convinced that it demonstrates that equals are treated unequally 

as a reference to any factor" 1d. at 63; see also id. 67, 101). 
  

That basic skepticism, never dispelled, explicitly 

colored the District Court's entire evaluation of petitioner's 

proof. In a subsection entitled, "What a Multivariate Regression 

Can Prove," (R. 1190), the Court purports to contrast what: 

"[Baldus] means when he says that he has 'controlled' for other 

independent variables" with "[w]lhat these terms usually mean" 

(R. 1196), proceeding to describe the "usual" meaning of controls~ - 

solely in terms of the cross tabular method -- "that a researcher 

has compared cases where the controlled-for variables are present 

in each case and where the cases are divided into groups where the 

variable of interest is present where the variable of interest is 

21/ 
not present" (R. 1196-97). The Court continues: 

  

50/ The principal limitation of the cross-tabular approach, as 
Baldus explained, is that it must subdivide its sample as each new 
variable is added to the analysis, quickly depleting all but 
extraordinarily large samples. (Fed. Hab. Tr. 705). 

51/ All of the expert testimony at the hearings confirmed, 
of course, that multiple regressions do control for other 

(Continued) 
50  



With these difficulties, it would appear that multi- 
variate analysis is ill suited to provide the court 
with circumstantial evidence of the presence of dis- 
crimination, and it is incapable of providing the 
court with measures of qualitative difference in 
treatment which are necessary to a finding that a prima 
facie case has been established with statistical evi- 
dence. Finally, the method is incapable of producing 
evidence on whether or not racial factors played a 
part in the imposition of the death penalty in any 
particular case. To the extent that McCleskey contends 
that he was denied either due process or equal pro- 
tection of the law, his methods fail to contribute 

anything of value to his cause. 

  

(Continued) 

background variables (see e.g., Fed. Hab. Tr. 691-96; Fed. 
Oct. Tr. 6-60; 77-79). Multiple regression analysis "is ... 
a substitute for controlled experimentation," Vuyanich v. 
Republic National Bank, supra, 505 F. Supp. at 269; accord, 
Eastland v. TVA, supra, 7/04 F.2d at 621; Fisher, supra, 80 
COLUM. L. REV. at 706. 

  

  

  

  
  

The District Court raised two other concerns about 
regression analysis: first, that it "requires continuous 
dependent and independent variables" (R. 1194); and 
secondly, that "the size of a regression coefficient ... 
says nothing about the specific degree of disparity" (R. 
1197), and thus "one cannot use the size of the regres- 
sion coefficient as an indication of the relative 
strength of one variable to another" (R. 1197-98). Both 
concerns are misplaced. Dr. Woodworth, an expert in 
dichotomous outcome analysis, testified unequivocally 
that "there is no problem in controlling for a dichotomous 
independent variable" in regression analysis (Fed. Oct. 
Tr. 30). See, e.g., Fisher, "Multiple Regression in Legal 
Proceedings," 80 COLUM. L. REV. 702, 722 (1980) (The 
State's experts did not dispute this point). As for 
the second issue, the experts cited by the Court on the 
difficulties of interpreting regression coefficients say 
only that one must be careful in comparing coefficients 
for continuous variables (e.g. age, number of convictions), 

. with coefficients for dichotomous variables (presence or 
absence of a factor). No such problems attend compar- 
isons solely among dichotomous variables, and Baldus 
carefully observed the distinction in his analyses 
(id. 1782-84) Berk fully endorsed the principle that 
Baldus' coefficients were meaningful. This testimony is 
consistent with the scientific literature. See, e.g., J. 
NETER & W. WASSERMAN, APPLIED LINEAR STATISTICAL MODELS, 

at 229 (1974); Taylor, "Analyzing Qualitative Data," in 
P. ROSSI, J. WRIGHT & A. ANDERSON, eds., HANDBOOK OF 

SURVEY RESEARCH, at 576. 

  
  

-)  



  

2 
(R. 1190-1200) (underscoring opliindy So 

In staking out this extraordinary legal position, 

the District Court has set itself squarely in opposition to 

established legal authority in this Circuit. The former 

Fifth Circuit first adverted to the use of regression analysis 

in 1976, calling it "a sophisticated and difficult method of 

proof in an employment discrimination case," Wade v. Mississippi 
  

Cooperative Extension Service, 528 F.2d 508, 517 (5th Cir. 
  

1976). Five years later, having gained greater familiarity 

with the method, the Court observed that "[m]Jultiple regres- 

sion analysis is a relatively sophisticated means of deter- 

mining the effects that any number of different factors have 

on a particular factor," Wilkins v. University of Houston, 
  

654 F.2d 388, 402-03 (5th Cir. 1981), vacated and remanded on 
  

other grounds U.S. , 103 S.Ct. 34 (1982). The Court held 
  

in Wilkins that "if properly used, multiple regression 

analysis is a relatively reliable and accurate method of: 

gauging classwide discrimination," id. at 402-03 n.18, indeed 

noting that "it may be the best, if not the only, means of 

proving classwide Aiiorintnation ... in a case where a number 

of factors operated simultaneously to influence" the outcome 

of interest. Id. at 403. 

With proper attention to its possible misuse, 

this Court has thus also embraced multiple regression 

  

52/ One of the major reasons why the Court misunderstood 
some of these basic statistical principles may have been 
its refusal to admit Baldus' extensive report into 
evidence (see Fed, Hab. Tr. 1008-31; DB 113), even 
though a copy had been provided to the State's experts 
during discovery, and though Baldus and Woodworth both 
stood ready to submit full cross-examination on its 
contents. Petitioner contends that this exclusion 
was clear error, on each of the grounds he presented to 

the District Court (id. 1008-31). 

fs J  



  

analysis as an appropriate tool for the proof of discrimination 

claims. See, e.g., Eastland v. TVA, supra, 704 F.2d at 621-22; see 
    

also, Valentino v. United States Postal Service, 674 F.2d 56, 70 
      

(D.C. Cir. 1982); see generally, Finklestein, "The Judicial 
  

Reception of Mutiple Regression Studies in Race and Sex Discrim- 

ination Cases," 80 COLUM. L. REV. 737 (1980). 

Whether multiple regression is legally appropriate as 

a means of proof does not, in sum, depend on whether a district 

court is able to understand of the underlying regressions. When 

real, persistent racial differences are presented in a carefully 

conducted statistical analysis, a federal court must take them 

seriously =-- not dismiss them summarily with the wish that a less 

mathematically sophisticated method of proof were available. 

(iii) The Models Employed By Petitioner Were 
Statistically Appropriate 
  

The District Court's third major error in its eva- 

luation of petitioner's case was its set of unfounded assumptions 

about the "models," or sets of variables, that Baldus should have 

used to conduct his analyses. 

On the one hand, the Court apparently believed that 

no model is sufficient unless it can control for all possible 

racially neutral variables, since "any model which does not 

. include the 230 variables may very well possibly not present 

. a whole picture" (R. 1171). The Court did not merely treat 

models with fewer variables as less reliable -- it discounted 

them altogether. Thus Baldus' "worst case" reanalyses, 

conducted to check the effect of "missing data", were dismissed, 

since Baldus "used a 39-variable model [and] ... did not test 

—63= 

 



any of his larger regressions" (R. 1167). Similarly, Woodworth's 

extensive series of diagnostic tests to see if possible statistical 

biases had crept in was Pranded virtually worthless, because 

"[n]Jone of Woodworth's models in which he performed his diagnostics 

are large order regression analyses" (R. 1179). The "triangula- 

tion" approach is unsound, the Court stated, because "Baldus is 

taking his bearings off of many models, none of which are adequately 

inclusive" (R. 1182). Baldus' 39-variable model "is by no means 

acceptable" (R. 1205) 2 

What evidence or legal principle warrants the District 

Court's position? None we can locate. Baldus expressed the 

expert opinion that a 39-variable model best "captured the 

essence of this system in terms of the main determinants ... 

those [39] variables constituted the most plausible rival hypo- 

thesis ... in the sense that they were statistically important   
and also they were important in terms of our general understanding 

of how systems of this type operate" (Fed. Hab. Tr. 808, 815). 

Expanding on this point, Baldus explained that no model is per- 

  

53/ while insisting that only petitioner's large-scale models 
were appropriate, the District Court nevertheless stressed the 

- ostensibly severe problems of multicollinearity associated with 
g large models (see R. 1176-80). The Court's treatment of this 

issue is marked by confusion and error. The Court confuses multi- 

  

collinearity =-- which "reduces the precision of the standard 
. [error of] estimates with respect to the variables that are in- 

terrelated to one another” (Fed. Hab. Tr. 1166-67) =-- with the 
possibility that "racial variables are serving as proxies for 
other permissible factors" (R. 1176). Multicollinearity affects 
only the statistical significance of a result; it does not bias 
the coefficients reported. See, e.g., Fisher, supra, 80 COLUM. 
L. REV, at 713. (Fed, Hab. Tr. 1281-82; accord, 1782.) 
Indeed, since the impact of multicollinearity is to reduce 
the level of statistical significance, racial variables which 
show a statistically significant result in large models are 
2l] the more impressive (id. 1136). 

  

The issue of whether race is serving as a proxy for other 
variables is precisely what a regression analysis, by controlling 
for such other variables, is designed to resolve. Petitioner did 
control for 230 variables, and racial effects remained strong. 

fd  



  

LJ 
AJ 

fect. Very large models present certain "technical concerns" as 

a statistical matter; smaller models raise the concern that an 

important variable has been omitted. It was for that reason, 

Baldus testified, that he employed a variety of models (id. 

830-21). 

Dr. Woodworth testified that the 39-variable or 

"mid-range" model, which he used in all of his diagnostic 

tests, "does an excellent job of predicting the [sentencing] 

outcome ... predicting about 93 percent of the outcomes 

correctly," (id. 1290). Even the State's expert admitted that 

"[i]lt is theoretically possible that a twenty-variable model 

with no interdependency could be more reliable than a 230-vari- 

able model if a lot of the variables were interdependent, or 

interrelated" (Feb. Hab. Tr. 1673). Franklin Fisher makes a 

similar point in his influential article on the legal use of 

regressions: 

Without some theory about which variables are likely to 
matter, throwing a great number of variables into the 
hopper is likely to lead to spurious results ... [W]lhen 
having a study done by an expert, one should not be too 
insistent about covering every possibility at once. 
Rather one should make sure that the expert proceeds 
by estimating a reasonable model including the major 
variables and then goes on to test other possibilities. 
If one insists that all possible variables are likely to 
be of equal importance, one is likely to end up with a 
rather doubtful result." 

Fisher, supra, 80 COLUM. L. REV. at 715.54/ 

The District Court's second erroneous assumption 

about statistical models is, ironically, tied to the first. 

  

54/ Petitioner of course stood ready throughout the August 
1983 hearing, and again at the October hearing, to respond to 
all challenges to its claims. If the Court had then indicated 
any serious reservations about the reliability of petitioner's 
diagnostic tests because of the 39-variable model, petitioner's 
experts had the means available and would have been quite will- 
ing to conduct important analyses with larger models. 

-65=-  



  

Even the 230-variable models, the Court held, were "insuffi- 

ciently predictive to support an inference of discrimination" 

(R. 1173; id. 1174; 1181), since they had a low ve? and did 

not predict all of the outcomes. Indeed, the Court even faulted 

its own "Lawyer Model" on this account: "I tried to suggest [what 

factor are important] in the model I designed and obviously I 

didn't do well because I didn't even predict half of the death 

penalties" (Fed. Oct. Tr. 65). 

The flaw in the Court's reasoning, as Woodworth 

explained, is its assumption that there are no arbitrary or 

random features to the system. If arbitrary or unique factors 

play a part, no number of variables could account for them. 

Woodworth testified that it was "possible for a set of variables 

to have an r-square of .39 or .46 and yet still account for all 

the significant variation apart from the randomness." Moreover, 

Woodworth, an expert on dichotomous outcome analysis, added that 

2 numbers dichotomous data typically produced artificially low r 

2 
-- that, in fairness, the appropriate "biserial r " for such 

ie 
models is roughly double the unadjusted r (id. 1289).33/ 

Employing such recalculations, most of petitioner's models seem 

to have rg of between .70 and .90. 

To summarize, the District Court's unwarranted assump- 

tions about regression models led it into an erroneous legal and 

factual judgment of petitioner's evidence. On this third major 

ground, the judgment of the Court must be reversed. 

  

55/ See, e.9., J. GUILFORD & B. FRAUCHTER, FUNDAMENTAL STATIS- 

TICS IN PSYCHOLOGY AND EDUCATION, 6th ed., at 311 (1969); Fisher, 

supra, 80 COLUM. L. REV. at 7319; 

  

B86  



D. The State Presented No Significant Rebuttal Case 
  

Because petitioner made out a prima facie case, the legal 

burden shifted to respondent to rebut that case in one of three 

ways: (i) "by showing that plaintiff's statistics are mislead- 

ing," Eastland v. TVA, supra, 704 F.2d at 613-19; (il) "by pre- 
    

senting legitimate non-discriminatory reasons for the disparity," 

id.; or (iii) by proving that racial discrimination is justified 

in this context by a compelling state interest. See generally, 
  

Johnson v. Uncle Ben's, Inc., 628 F.24 419, 423-24 (5th Cir. 
  

1980), cert. denied, u.S. 103 S.Ct. 233 (1982). 
  

what did the State do to meet these burdens? It offered 

no alternative model which might have reduced or eliminated the 

racial disparities (Fed. Hab. Tr. 1609). It did not even propose   
-- much less test the effect of -- any additional explanatory 

variables (id.), admitting that it did not know whether the addi- 

tion of other variables "would have any effect or not" (id. 1567). 

The State declined petitioner's invitation to propose a recombina- 

tion of Baldus' variables that might yield a different result 

(id. 1475-76). It performed no multivariate analyses of its own 

to test whether white and black victim cases are being treated 

differently (id. 1615). Nor did it point to any analysis by 

Baldus in which the racial effects disappeared or ran counter to 

L 
[] 

petitioner's claims. 

The State, in short, presented no affirmative statis- 

tical case on rebuttal at aly, 25 

  

56/ In one regard, at least, the failure is unsurprising. 
Neither of the State's experts had background or training in 

any area related to the criminal law (Fed. Hab. Tr. 1356-57; 

Resp. Ex. 75). In its opinion, the District Court clearly 
misread the record by reciting that Dr. Katz "was qualified 
as an expert in analyzing data, in research design, in sta- 
tistics, statistical analysis and quantitative methods. 

(Continued) 
-]  



  
1 

Instead, the State attempted unsuccessfully to attack 

the integrity of petitioner's data sources. But a rebuttal case 

challenging a party's data base as misleading or inaccurate can- 

not succeed without strong evidence that the data are seriously 

deficient and unreliable: 

[A] heavy burden must be met before a party can justify the 
rejection in toto of any statistical analyses on the ground 
of errors or omissions in the data ... the challenging party 
bears the burden of showing that errors or omissions bias 
the data [and] ... that this bias alters the result of the 
statistical analyses in a systematic way. 

Vuyanich v. Republic National Bank supra, 505 F. Supp. at, 255-56; 
    

accord, Trout v. Lehman, 702 P.24 1094, 1101 (D.C. Cir. 1983): 
  

Detroit Police Officer's Ass'n v. Young, 608 F.2d 671, 687 (6th 
  

Cir. 1979); cert. denied, 452 U.S. 938 (1981), The State's 
  

challenges were either trivial in their overall significance or 

based on misunderstandings of petitioner's coding conventions, 

No serious proof was offered by the State to "show|[] that errors 

or omissions bias([ed] the data" or "that this bias alter([ed] the 

result of the statistical analyses in a systematic way." 

The State's expert did present one hypothesis =-- that 

the apparent racial disparities could be explained by the gene- 

rally more aggravated nature of white victim cases. However, 

after assembling a wealth of material to prove that white victim 

cases are more aggravated on the average, Dr. Katz never addressed 

the critical question -- whether white and black victim cases 

  

(Continued) 

R. 1346" (R. 1149). While the State proposed Dr. Katz as 
qualified in all of those areas (Fed. Hab. Tr. 1346), voir 
dire exposed that he had never had training or experience 
gathering empirical data on human behavior, had never taken 
a course in multivariate analysis, and had virtually no 
training in the design of empirical research (id. 1370-74). 
The Court declined to qualify him in these areas (id. 
1375-773 1383). 

  

-68~  



  

at the same level of aggravation are being treated similarly (id. 
  

1664). Dr. Katz, in the other words, never tested his own hypo- 

thesis (id. 1760-61), although on cross-examination he admitted 

"that would have been desirable" (id. 1613). 

This hypothesis is thus precisely the sort of "[u]lnqual- 

ified, speculative, and theoretical objection[] to the proffered 

statistics [that is] properly given little weight by the trial 

  

court," Trout v. Lehman, supra, 702 F.2d at 1102; see e.g., 
  

Castaneda v. Partida, 430 US. 1182, 499 n.19 (i977). The Dis- 
  

trict Court here declined fully to credit the State's theory 

(see R. 1178-79); 1200-01), but it nevertheless called it "plau- 

sible" (R. 1200), and held that it constituted "direct rebuttal 

evidence [which] ... stands to contradict any prima facie case" 

{R. 1201), 

Even standing alone, that assessment would violate 

Trout's cautionary injunction. However, petitioner's experts 

directly addressed this hypothesis (id. 1297; 1729-32), tested ._  . 

it themselves (id. 1291-96; see GW 5, 6, 7, 8; see also DB 92), 
  

and conclusively proved that it does not explain the racial dis- 

parities (id. 1732). Untested by its proponents, refuted by __ 

petitioner, the hypothesis is clearly entitled to no weight as 

rebuttal. 

The State's expert advanced one additional hypothesis, 

that because the statistical significance of Baldus' racial coef- 

ficients dropped when the first variables were added to his 

model, the addition of still further, unspecified variables 

beyond 230 identified by Baldus "might" eventually eliminate all 

the statistical significance of the coefficients (id. 1564-69). 

Dr. Katz once again acknowledged he had not performed any tests 

to confirm this speculation (id. 1566). 

69  



  

Petitioner's statistical experts testified that Dr. 

Katz's "extrapolation is not a reliable statistical tool" (id. 

1729), and that the demonstration "in no way invalidates the 

original results" (id. 1758). Moreover, Dr. Woodworth illus- 

trated the point by presenting an equally plausible demonstra- 

tion under which statistical significance was maintained (id. 

1728-29; see GW 6). 

In sum, the State's rebuttal arguments were themselves 

nothing but uninformed speculations, which petitioner firmly 

countered. Because petitioner's prima facie case was not seri- 

ously challenged, much less refuted, he should have prevailed 

on his constitutional claims. The District Court erred seriously 

in denying relief. 

V. THE DISTRICT COURT IMPROPERLY REJECTED PETITIONER'S 
PROSECUTION-PRONENESS CLAIM 
  

The District Court rejected as a matter of law peti- 

tioner's claim that the exclusion of death-scrupled jurors vio- 

lated his right to be tried by an impartial and unbiased jury 

drawn from a representative cross-section of his community 

(R. 1244). That holding, we respectfully submit, was error. This 

Court sitting en banc should adopt the findings and conclusions 

set forth in Grigsby v. Mabry, 569 P. Supp. 1273 (E.D. Ark. 1983), 

hearing en banc ordered, No. 83-2113 EA (8th Cir., November 8, 

1983) and Keeten v. Garrison, 578 F. Supp. 1164 (W.D.N.C. 1984), 
  

appeal pending, No. 84-6139 L (4th Cir.). 
  

CONCLUSION 
  

That portion of the District Court's judgment granting 

habeas corpus relief to petitioner on his due process claims 

under Giglio v. United States should be affirmed. Those por- 
  

=7 0  



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