Response of the United States to Defendants' Motion for Modification of Desegregation Plan

    MEMORANDUM 

To: Anthony G. Amsterdam 

From: Robert Nelson 

Re: The discrimination claim in cases like McCleskv 

Date: December 22, 1985 

Questions Presented 
  

[. Whether the jurv selection equal protection standard can be applied 
  

outside of the jurv selection context? 
  

11. Whether under the jurv selection standard there exists an affirmative 
  

constitutional dutv bv public officials to prevent discriminatory results? 
  

111. Whether the legislative history of 18 USC. 8242 suggests that the 
  

  

framers of the Fourteenth Amendment did not contemplate that 

discriminatorv purpose would be an essential requisite of equal protection 
  

claims involving punishment? 
  

IV. Whether the same standard utilized 10 make out a violation of 42 USC. 
  

$1983 was originally intended 10 applv 10 Fourteenth Amendment 
  

violations? 
  

Introduction 
  

 



  

This memorandum attempts to answer some of the questions raised 

by my memorandum of October 20, 1985. It exclusively addresses the 

traditional equal protection claim involving a showing of discrimination, as 

opposed to the arbitrariness claim. 

The first two questions presented focus on the jury selection standard. 

The first question considers whether the requirement that a jury be a 

representative body of a defendant's peers is the basis for treating jury 

selection differently from other equal protection areas. If the representative 

requirement is the basis for treating jury selection differently, then the jury 

selection standard could not be applied to cases like McClesky where there 

exist no fair representation requirement. To prove that this requirement is 

not the basis for the jury selection standard. the memo traces the history of 

the jury selection standard and concludes that the modern jury selection 

standard has existed only since Castaneda v. Partida, while the requirement 
  

of a representative jury has existed for one hundred years. This 

representative requirement cannot. then. constitute the basis of the modern 

jury selection standard. As noted in the first memorandum. the 

justifications for the mosdern jury selection standard were set out in Davis, 

and those justifications apply with ample force outside of the jury selection 

context and to cases like McCleskv. 

  

The second question considers the possibility of an affirmative 

constitutional duty to prevent discriminatory results under the jury selection 

standard. While there does in fact exist a constitutional duty "not to pursue 

a course of conduct [that] operates to discriminate on racial grounds,” the 

duty has been interpreted to mean, in effect, a duty not to discriminate 

purposefully. Importantly, however, this duty has not been re-examined 

2 

 



  

since Castaneda and the onset of modern jury selection standard. Prior to 

Castaneda, a showing of discriminatory purpose was required. [n the post- 

  

Castaneda world which does not require a showing of discriminatory purpose 

to make out an equal protection claim. it is possible that the duty today 

could have more teeth to it. 

The last two questions presented consider the the requirement of 

discriminatory purpose in historical perspective. Neither the Civil Rights Act 

of 1866, the statute upon [8 US.C. §242 is based. nor the Klan Act of [871], 

upon which 42 US.C. §1983 -- the civl law counterpart of 18 US.C. 8242 -- is 

based, expressly required a showing of willful discrimination to find a 

statutory violation. [n fact, it is likely that something markedly less than 

discriminatory purpose established an equal protection violation under the 

Reconstruction statutes. As these statutes or their immediate predecessors 

were enacted to enforce the Fourteenth Amendment. it may be possible to 

infer that the framers of the Fourteenth Amendment also did not 

contemplate that willful discrimination would be an essential requisite to a 

prima facie equal protection claim. 

I. Whether the jurv selection standard can be applied outside of the jurv 

selection context? 
  

  

If we apply the jury selection standard outside of the jury selection 

context, we must grapple with the argument that the jury selection equal 

protection standard is necessarily different from other equal protection 

areas precisely because a jury must be composed of a representative body of 

one's peers. Given this representative requirement, it makes good sense that 

the standard would be less accepting of discriminatory results than other 

equal protection areas where there exists no requirement of 

3 

 



  

  

representativeness. If it is true that the justification for the jury selection 

standard is the need for representative juries, then the jury selection 

standard most likely cannot be applicable outside of the jury selection 

context: the standard's raison d'etre would be applicable only to jury 

selection. 

The history of the jury selection standard does not, however, support 

this argument. The history suggests that while the requirement of a 

representative jury has existed for 100 years. it has only been in the last 10 

years, since Castaneda v. Partida, 450 US. 482 (1977). that the jury selection 

  

standard has moved away {rom the purpose requirement characteristic of 

other equal protection areas. The jury selection standard most likely 

cannot, then. be due simply to the requirement of a representative jury. for 

the requirement of a representative jury has existed long before a 

substantively different equal protection standard attached to jury selection. 

Since Strauder v. West Virginia, 100 US. 303 {1880), the Supreme 
  

Court has recognized that a jury must be composed of "peers of equals of the 

person whose rights it is selected or summoned to determine: that is. of his 

neighbors. fellows, associates. persons having the same legal status in society 

as that which he holds.” Id. at 308. Racial discrimination that results in the 

systematic exclusion of otherwise qualified groups is at war with our basic 

concepts of a democratic society.” Smith v. Texas, 511 US. 128. 150 (1940). 

  

Such exclusion contravenes the very idea of a jury -- ‘a body truly 

representative of the community.” Id! 

  

| Wainwright v. Witt, 53 USL W. 4108 4121 (Brennan, J. dissenting on 

other grounds); Rose v. Mitchell, 443 US. 545, 556 (1979); Tavior v. 

Louisiana, 414 US. 522. S28 i19795); Carter v. Jury Commission, 396 US. 320, 

330 (1970); Glasser v. US. 315 US. 60, 85 (1942). 

  

  

  

  

  

 



  

Yet despite these expansive pronouncements about the need for a 

representative jury which could certainly serve as the basis [or treating jury 

selection differently from other equal protection cases, the Court did not. 

prior to Castaneda, apply a markedly different equal protection standard to 

  

jury selection. Equal protection violations were found where cases involved 

either a showing of purposeful discrimination or a discriminatory jury 

selection procedure. In Neal v. Delaware, 103 US. 370 (1881), for example, 
  

the Court quashed the indictment of a black man by an all white jury from 

which blacks had been excluded. No black had ever been summoned as a 

juror although its black population exceeded 26,000 in a total population of 

less than 150.000. [d at 377. This showing of disparate impact was, 

however, accompanied by testimony from jury selection officers that they 

had excluded blacks justifiably since blacks were “utterly disqualified. by 

want of intelligence, experience, or moral integrity. to sit on juries.” Id. 

In Smith v. Texas, 311 US. 128 (.1940), five out of 384 grand jurors 

during the period from 1931-38 were black in a district in which 3.000 to 

6.000 blacks met the legal qualifications for sitting on a jury. Asin Neal, the 

Court also found evidence of purposeful discrimination to justify its finding 

am equal protection violaiton. Even though the jury commissioners who 

testified stated that they did not intentionally or systematically discriminate 

against blacks, some commissioners also stated that they did nt know any 

blacks and therefore would not select blacks. Id at 131-132. The Court held 

that "discrimination can drige {rom commissioners who Know no negroes ds 

well as from commissioners who know but eliminate them.” Id. at 152. 

While the Court in Smith called this Kind of discrimination 

‘ingenuous’ discrimination. id. the Court has characterized such 

discrimination as ‘intentional discrimination. For example. in Cassel v. 

 



  

Texas, 339 US. 282 (1950), a case similar to Smith involving disparate 

  

impact and the defense by the jury commissioners of not knowing any 

qualified blacks, the Court stated: "The statements of the jury commissioners 

that they chose only whom they knew, and that they know no eligible 

Negroes in an area where negroes made up [13.5%] of the population prove 

the intentional exclusion that is discrimination in violation of petitioner's 

constitutional rights.” Id. at 290.2 In these and other jury selection cases 

more than disparate impact was required. “A purpose to discriminate must 

be present...” Akins v. Texas, 316 US. 400, 403 (1945). In Fay v. New York, 
  

  

332 US. 261 (1947). the Court, relying on Smith, held that a jury selection 

equal protection claim cannot be established by a "mere showing” of 

disparate pac but only by “a clear showing that [a group's absence on a 

juryl was caused by discrimination.” Id. at 284. 

In cases where an equal protection violation was found absent a 

showing of discriminatory purpose. the jury selection procedure was found 

to be unduly susceptible to abuse. See, e.g. Alexander v. Louisiana, 405 US. 
    

625 (1972): Whitus v. Georgia, 385 US. 545 (1967); Avery v. Georgia, 345 US. 

5359. 

  
  

The Court could conclude. then. in Apodaca v. Oregon, 406 US. 404 
  

(1972): "All that the Constitution forbids. however, is systematic exclusion of 

identifiable segments of the community from jury panels and from the juries 

ultimately drawn from those panels: a defendant may not. for example. 

challenge the make up of a jury merely because no members of his race are 

on the jurv. but must prove that his race has been systematically excluded. 

  

2 The Court found an equal protection violation in Eubanks v. Louisiana, 356 
  

US. S84 (1958), a similar case in which the jury commissioners attributed the 
disparate impact on ‘local tradtion.” 

 



  

  

Id. at 413, citing Swain v. Alabama, 380 US. 202, 208-209 (1965); Cassel v. 

Texas, 339 US. at 286-287; Akins v. Texas, 316 US. at 403-404. 

    

These cases suggest that the jury selection standard prior to 

Castaneda was not very different from traditional equal protection analysis 

outside of the jury selection context.3 Discriminatory purpose or a 

discriminatory procedure alongside a discriminatory result was a 

prerequisite to a prima facie equal protection claim. So despite the 

importance of a representative jury of ones peers recognized first in 

Strauder and continually since. the cases demonstrate that the desire for a 

representative jury did not lead to a jury selection standard that did not 

require a showing of discriminatory purpose. Thus any justification for 

today treating jury selection differently from other equal protection 

violations cannot rely solely. if at all. on the need for a representative jury of 

One's peers. 

The reasons for the change in the standard were, ironically. 

established in Washington v. Davis, 426 US. 229 (1976). the case that firmly 
  

established the purpose requirement outside of the jury selection context, 

and were first implemented in Castaneda. In Castaneda, the Court expressiv 
    

relied on Washington v. Davis and Arlington Heights to show that an equal 
    

protection violation had been shown. 430 US. at 493-494. According to 

Davis, jury selection should be treated differently because |) systematic 

exclusion of blacks from a jury is “itself such an equal application of the law . 

_. as to show intentional discrimination”; 2) and the discrimination is very 

difficult to explain on other grounds.” 426 US 24[-242. Based solely on 

  

3 But see Peters v. Kiff, where justice White, concurring, stated that Congress 
  

put exclusions from jury service on grounds of race "in a class by 
themselves.” 407 US. at 505. See infra at 20. 

 



  

these justifications -- no mention was made in Castaneda or Davis about the 
  

requirement of a representative jury as being a justification for a different 

jury selection standard -- the Court in Castaneda fashioned the modern jury 

selection rule. First, the person must be 2 member of a group that is a 

recognizable class and is singled out for different treatment by application of 

the law; second, the degree of underrepresentation must be substantial and 

must be demonstrated by comparing the proportion of the group in the total 

population to the proportion cdiled to serve as grand jurors, over a 

significant period of time; third. the Court required that the selection 

procedure be susceptible to abuse or that it be racially non-neutral. 430 US. 

at 494. The Court concluded that "{olnce the defendant has shown 

substantial underrepresentation of his group. he has made out a prima facie 

case of discriminatory purpose.” Id. at 495. In Castaneda, perhaps for the 

first time, the Court found an equal protection violation without finding 

discriminatory purpose by public officials or a jury selection procedure that 

was flagrantly subject to abuse. 

Because the Davis justifications for treating jury selection differently 

and the Castaneda requirements for making out a prima facie claim all apply 

to the facts of McClesky,* it 1s possible to argue that the jury selection equal 

protection standard can apply outside of the jury selection context and to 

cases like McClesky. 

II. Whether under the jurv selection standard there exists an affirmative 

constitutional duty bv public officials to prevent discriminatorv results? 
  

  

The jury selection standard does provide some basis upon which it can 

be argued that the Equal Protection Clause requires public officials to 

  

1 See my memorandum of October 20, 1985. at 14-29. 

 



  

exercise a duty to prevent discriminatory results. The origins of this 

possible affirmative duty are in Smith v. Texas 311 US. 128 (1940), where 

jury commissioners testified that they did not select any blacks to sit on a 

grand jury because they did not know any blacks.> The Court found that 

where jury commissioners limit those from whom grand juries are selected 

to their own personal acquaintances. ‘discrimination can arise from 

commissioners who know no negroes as well as from commissioners who 

know but eliminate them. Id. at 1532. The Court concluded: "If there has 

been discrimination, whether accomplished ingeniously or ingenuously, the 

conviction cannot stand.” Id That the jury commissioners denied that they 

intentionally. arbitrarily or systematically discriminated against black jurors 

was irrelevant in light of the “ingenuous” discrimination. [d. Smith may be 

  

the first case where an equal protection violation was found absent a 

showing of actual discriminatory purpose. 

In Hill v. Texas, 316 US. 400 (1942). jury commissioners testified that 
  

they did not know any qualified blacks who could serve as jurors. Yet they 

had made no effort to ascertain whether any blacks were qualified to serve 

as jurors. According to the Court, the jury commissioners failed to perform 

their constitutional duty -- recognized by §4 of the Civil Rights Act of March 

  

5 See supra at 5-6. 

 



  

{18756 and fully established since our decision in 1881 in Neal v. Delaware, 
  

103 US. 370 (1881) -- not to pursue a course of conduct in the 

administration of their of fice which would operate to discriminate in the 

selection of jurors on racial grounds.” Hill, 316 US. at 404. Therefore, the 

Court found, "no State is at liberty to impose upon one charged with crime a 

discrimination in its trial procedure which the Constitution and an Act of 

Congress passed pursuant to the Constitution, alike forbid.” Id. at 406. The 

essence of this duty in Hill seems to mean a duty not to discriminate 

purposefully on the basis of race or to utilize procedures which necessarily 

discriminate -- hardly helpful for equal protection claims like McClesky's 

that involve far more subtle forms of discrimination. The Court in Hill 

concluded that "it is our duty as well as the State's to see to it that 

throughout the procedure for bringing [the defendant] to justice he shall 

enjoy the protection which the Constitution guarantees.” Id. at 406. While 

framed in the affirmative. this definition of the duty simply begs the 

question, for its meaning is dependent on what the Constitution “guarantees.” 

  

6 18 Stat. 336, now codified at 18 US.C. §243. This section provides: No 

citizen possessing all other qualifications which are or may be prescribed by 

law shall be disqualified for service as a grand or petit juror in any court of 

the United States, or of any state on account of race, color, or previous 

condition of servitude: and whoever, being an officer or other person 

charged with any dutv in the selection or summoning of jurors, excludes or 
fails to summon any citizen for such cause, shall be fined no more than 
$5.000." It should be noted that this section, like the other Reconstruction 
statutes noted below in questions III and IV of this memorandum, did not 

expressly contain a requirement of purpose. The statute since its inception 

has, however, only applied to the situation where discriminatory purpose 

has been shown. See eg. Neal v. Delaware 103 US. 370 (1881), where a 
showing of extreme disproportionate impact was found (no blacks ever on a 

jury) alongside the testimony of jury selection officers who stated that they 
had excluded blacks justifiably since blacks were “utterly disqualified. by 
want of intelligence, experience, or moral integrity, to sit on juries.” Id. at 

377. 

  

10 

 



  

More importantly, if the duty is simply a duty not to do what the 

Constitution forbids, then the duty does not add any substantive limits to the 

standard. : 

The nature of this constitutional duty was next considered in Cassel v. 

Texas, 339 US. 282 (1950). a similar case involving jury commissioners who 

claimed that they knew no qualified black jurors. Here the Court required 

jury commissioners to take affirmative steps to prevent discrimination: 

"When the commissioners were appointed as judicial administrative officials. 

it was their duty to familiarize themselves fairly with the qualifications of 

the eligible jurors of the county without regard to race or color.” Id at 289. 

As noted in Question | above, this kind of discrimination was characterized 

as ‘intentional’ discrimination. Id. at 290. So here, too, it seems the duty to 

prevent discrimination Kicked in because the selection procedure was so 

obviously flawed that an inference of purposeful discrimination had to be 

drawn. [t's important to note that the Court required the jury 

commissioners take affirmative steps to correct the procedure. 

This duty was found alongside slightly different facts in Alexander v. 
  

Louisiana, 405 US. 625 (1972). In Alexander. the Court found that at two 
    

separate points in the jury selection procedure racial identfications were 

visibly attached to questionnaires; at these two points blacks were 

disproportionately excluded. and no blacks were on the grand jury that 

indicted the defendant.” While the progressive decimation of potential black 

grand jurors was “striking.” the Court did not find a prima facie violation 

  

7 In Alexander, 21% of the parish was black; 14% of the blacks responded to 

a questionnaire from which jurors were selected. After the two culling out 

procedures when racial identifications the commissioners had attached to the 

forms were visible, the pool was reduced to 400, of whom 27, or 7% were 

black. It was from this pool that the grand jury was selected. 

  

11 

 



  

based on the procedure. Id. at 630. Instead the Court engaged in a factual 

inquiry that took into accout “all possible explanatory factors.” Id. at 630. 

The Court noted that the ‘result bespeaks discrimination, whether or not it 

was a conscious decision on the part of any individual jury commissioner.”8 

Id. at 632. The Court then went on to quote verbatim fom Hill about the 

duty of jury commissioners "not to pursue a course of conduct ... which 

would operate to discriminate ...~ Id. The Court concluded by quoting 

from Whitus v. Georgia, 385 US. 545 (1967). noting that the "opportunity for 
  

discrimination was present and [that it cannot be said] on this record that it 

was not resorted to by the commissioners.” Id. at 632. Here there was an 

opportunity to discriminate and a duty was found not to discriminate. Based 

on the record, the Court concluded that that duty was violated. 

In Alexander, then. the “course of conduct” did not involve the 

"ingenuous” and obviously discriminatory action reminiscent of Hill, Smith 

  

and Cassell. Yet the jury selection procedure in Alexander was structurally 
  

  

flawed. That fact, alongside the disparate impact, proved determinative. 

Surely we would have a hard time showing that Georgia's death statute is 

similarly structurally flawed. Still. however, the administration of the death 

penalty is subject to abuse; indeed. the race of the victim of the capital 

crime is apparent to public officials involved in the death sentencing 

procedure. This fact. alongside a “result [that] bespeaks discrimination.” may 

  

8 The Court was quoting here from Hernandez v. Texas, 347 US 475, 482 

(1954). 
  

 



  

  

constitute a sufficient factual basis to violate a constitutional duty that may 

exist to prevent discrimination.’ 

So not unlike Alexander. then, the discrimination in McCleskv is not 

  

purposeful in the Hill sense, and the discriminatory result is based upon a 

statistical showing of disparate impact alongside a procedure that is at least 

to some degree susceptible to abuse. Thus it is possible that the requisites 

of a prima facie violation of this duty may exist in McClesky. Yet because 

no court would find Georgia's death statute structurally defective to the 

same degree as the jury selection utilized in Alexander, Whitus, or Avery, 

    

the task in McClesky is to argue that the duty is to prevent discriminatory 

results. and that duty is violated when any public conduct leads to 

discriminatory results. Surely this reading is consistent with the plain 

language of the duty. But if the duty is violated only by flagrantly 

discriminatory actions or by procedures flagrantly subject to abuse -- a 

  

9 It should be noted that in Peters v. Kiff, 407 US. 493 (1972), Justice White, 
concurring, quoted extensively from Hill. Id. at 506. He stated that where 

jury commissioners disqualify citizens on the grounds of race, they fail to 

perform their constitutional duty...” Id. Thus he implied that the duty is 

simply not to discriminate intentionally. It is not known in what fact pattern 

he would invoke the duty in Peters because the Kind of discrimination was 
not made known in the case. (The issue was whether a white defendant 

could suffer a Fourteenth Amendment violation if blacks were systematically 

excluded from the jury, not whether he did in that particular case. The 
evidence of discrimination was never presented.) 

  

  

13 

 



  

reading which is entirely consistent with the cases -- then the duty would 

not be violated in McClesky.!0 

One explanation why this duty does not seem to be very helpful in 

establishing an equal protection claim absent a showing of purpose is that 

the modern jury selection equal protection standard that does not require a 

strong showing of discriminatory purpose or an obviously discriminatory 

procedure did not exist prior to Castaneda v. Partida. As noted in Question | 
  

above, the jury selection standard prior to Castaneda was not all that unlike 

the equal protection standard outside of the jury selection context. Read in 

light of this history, the duty recognized in Hill, Cassel, and Alexander 

becomes important in the evolution of the standard; these are the first cases 

that began to compromise the purpose standard, if only marginally. It could 

be that the duty only marginally changed the jury selection standard 

because the standard was constrained within the old purpose framework. 

Now that that framework has been rejected in jury selection, perhaps it is 

possible to argue that the duty requirement should today be read to limit 

further constitutional actions under the modern standard. If the duty 

requirement limited constitutional actions under the jury selection standard 

prior to the Castaneda standard. why then should it not do the same in the 

post Castaneda world -- i.e. limit constitutional actions so that the duty is 

  

10 [n light of the possible applicability of this duty requirement to McClesky., 
it is important to note that the ingenious/ingenuous distinction has been 

utilized outside of the jury selection context. In Cooper v. Aaron, 358 US. 1. 
17 (1958), the Court noted, "In short, the constitutional rights of children not 
to be discriminated against in school admission on grounds of race or color . . 

. can neither be nullified openly and directly by state legislators or state 

executives or judicial officers, nor nullified indirectly by them through 
evasive schemes for segregation, whether attempted ingeniously or 

ingenuously.” Again, however, as in Smith, discrimination was inferred from 

egregious facts. 

  

14 

 



  

violated by the existence of discriminatory results. The Court in Castaneda 

did not say that the standard it enunciated reached the constitutional limits 

of the jury selection standard. Perhaps. then. we could argue that the 

constitutional duty not to pursue a course of conduct that operates to 

discriminate on racial grounds should be read today to mean a duty to 

prevent discriminatory results. Of course we are on very shaky legal turf 

here. 

[11. Whether the legislative history of 18 USC. 824211 suggests that the 
  

framers of the Fourteenth Amendment did not contemplate that 
  

discriminatory purpose would be an essential requisite of equal protection 
  

claims involving punishment? 
  

§2 of the Civil Rights Act of 1866.!2 made it a crime for any person 

under color of any law to “subject, or cause to be subjected [freed blacks] to 

... different punishment.” Senator Trumbull, chairman of the Senate 

Judiciary Committee which reported the Civil Rights Bill, stated that the Bill's 

purpose was to "to protect all persons in the United States in their civil 

  

It 18 USC 8242 provides: Whoever, under color of any law, statute, 
ordinance, regulation, or custom. willfully subjects any inhabitant of any 
State, Territory, or District to the deprivation of any rights, privileges, or 

immunities secured or protected by the Constitution or laws of the United 

States, or to different punishments, pains, or penalties, on account of such 
inhabitant being an alien or by reason of his color, or race, than are 
prescribed for the punishment of citizens, shall be fined not more that 

$1.000 or imprisoned not more than one year, or both; and if death results 
shall be subject to imprisonment for any term of years or for life.” Pub L. 

90-234 
1214 Stat. 27. 

 



  

rights, and furnish means of their vindication.”!3 It would, according to 

Trumbull, destroy the discrimination against blacks in the laws of the 

Southern states and enforce the 13th Amendment.!® In 1870. after the 

enactment of the Fourteenth Amendment, the statute was amended by 8817 

and 18 of the Act to Enforce the Provisions of the Fourteenth Amendment of 

May 31, 1870.15 The clause "subject or cause to be subjected” remained in 

the statute. The prohibition against the "deprivation of any rights, 

  

I3 Cong. Globe, 39th Cong., 1st Sess. p. 211. 

14 Flack, The Adoption of the fourteenth Amendment (1908) at 21. The Civil 
Rights Act of 1866 was hotly debated and was passed over two Presidential 

vetoes. Many thought that it was unconstitutional, as it usurped the powers 

of the states. Among those Republicans who objected most strongly to the 

Bill was Thaddeus Stevens. See id. 

15 16 Stat. 14. The statule provided, in pertinent part: "That any person 
who, under color of any law, statute, ordinance, regulation, or custom, shall 

subject, or cause to be subjected, any inhabitant of any State or Territory to 
the deprivation of any right secured or protected by the last preceding 

secotion of this act.m or to differnt punishment, pains, or penalties on 

account of such person being an alien, or by reason of his color or race, than 
is prescribed for the punishment of citizens, shall be deemed guilty of a 

misdemeanor. and. on conviction. shall be punished by fine not exceeding 

one thousand dollars, or imprisonment not exceeding one year, or both, in 

the discretion of the court.’ ; 
The preceding section referred to provided: "That all persons within 

the jurisdiction of the United States shall have the same right in every State 

and Territory in the United States to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit of all laws and 

proceedings for the security of person and property as is enjoved by white 

citizens. and shall be subject to like punishment, pains penalties, taxes, 

licenses, and exactions of every Kind, and none other, any law, statute, 
ordince, regulation, or custom to the contrary notwithstanding. No tax or 
charge shall be imposed or enforced by any State upon any person 
immigrating thereto from a foreign country which is not equally imposed 

and enforced upon every person immigrating to such State from any other 

foreign country; and any law of any State in conflict with this provision is 

hereby declared null and void.” (emphasis supplied) 

16 

 



  

privileges, or immunities, secured or protected by the Constitution and laws 

of the United States” was added in 1874.18 Like its predecessors. the 1874 

revision was applicable to any person who under color of law “subjects. or 

causes to be subjected” any inhabitant to the deprivation of any rights, etc. 

[t was not until 1909 that the requirement of a “willful” violation was 

introduced to the Criminal Code.!” "Willfully” was added to the Revised 

Statutes §5510. according to Sen. Daniel. to make the section “less severe.'!8 

Other than this statement by Sen. Daniel. [ have come across no other 

legislative history that helps explain why Congress made this express change 

in the Criminal Code. Neither the Senate!? nor House Reports2? of the bill 

provide any insight into the basis for the change to willfulness. The Senate 

Report did not even recommend adding the willfulness requirement into 

this section of the Code 2! 

Still, the fact that an express requirement of willfulness was added 

more than 40 years after the law was first passed, and that the change in 

the statute was to make the law “less severe,” suggest that the law was more 

severe between [866-1909 -- i.e that it was easier for persons to be 

prosecuted under the statute. During this period, it is likely that a cause of 

action could have been contemplated under the statute without showing a 

  

1& Revised Statutes $5510, at 1068. 
17 Act of March 4, 1909, 35 Stat. 1092. 

18 43 Cong. Rec., 60th Cong.. 2d Sess., p. 3599 (March 2, 1909). The statute 
was then codified at 18 USC 1940 ed. 852. 

19 Senate Report 10, Criminal Code Bill for Revision, S. 2982, 60th Cong., 1st 

Sess. 

20 House Report 2, Criminal Code Bill for Revision, HR. 11701, 60th Cong., Ist 

Sess. 

21 The only change the Senate committee recommended was to change 
"Every person who under color of state law... "to "Whoever under color of 

any law..." 

17 

 



  

willful violation of the law. As the 1870 Act was expressly enacted to 

enforce the protections afforded by the Equal Protection Clause, it may be 

possible to infer that the framers of the Fourteenth Amend ment also did not 

contemplate that a showing of willful or purposeful discrimination was 

required to make out a prima facie equal protection claim. A similar, more 

“severe” standard, may have been intended. 

This interpretation is not inconsistent with Screws v. United States 

  

  

3295 US. 91 (1945). where the Court attempted to define the willfulness 

requirement in §20 of the Criminal Code.22 There, §20 of the Criminal Code 

was attacked as unconstitutionally vague.23 Justice Douglas argued that the 

requirement of a "specific intent to deprive a person of a federal right” 

would avoid those consequences which may otherwise render a vague or 

indefinite statute invalid. [d. at 101-103. Such a requirement “saves” the 

Act from any charge of unconstitutionality on the grounds of vagueness. [d. 

at 103. 

However, Justice Douglas found that this construction was consistent 

with the history of the statute. This was true, he found, since the word 

“willfully” was added to make the section’less severe.” 1d. Prior to 1909, 

Congress intended that one who deprived a person of any right protected by 

the Constitution should be liable "without more.” [d. This was the pattern of 

criminal legislation which has been sustained without any charge or proof of 

  

22 §20 of the Criminal Code was codified as 18 US.C. [940 ed.. §52 [Derived 
from RS. 85510]. In 1948, 18 US.C. §242 was enacted. 

23 The claim was made that a local law enforcement could violate §20 and 

commit a federal offense if he does an act which some court later holds 

deprives a person of due process of law or equal protection. Those who 

enforced local law today might not know for many months whether what 
they did deprived someone of due process of law. The enforcement of a 
criminal statute so construed would cast law enforcement agencies "loose at 

their own risk on a vast uncharted sea.” Id at 97-98%. 

18 

  

  

 



  

  

scienter. 1d.24 The Court concluded that since the section was amended to 

be "less severe,” it is permissible to infer that that its severity was to be 

lessened by making it applicable only where the requisite intent to deprive a 

person of a federal right was present. 1d. at 103. Discriminatory purpose 

was not a requisite of the statutory claim. Thus it would appear that 

something broaching an effects or results based standard existed prior to 

1909. 

Justice Douglas did note that prior to the willfulness requirement, §20 . 

"would have been susceptible” to this more severe interpretation. But he 

added that the Equal Protection Clause was not susceptible to such an 

interpretation prior to §20 since “purposeful discrimination’ must be 

shown.” Id. at 103, quoting Snowden v. Hughes, 321 US. 1, 8-9. [tis 
  

significant for us that his support for this claim is prior case law as opposed 

to legislative history. Justice Douglas is not, | don't think, suggesting that 

the framers of the Fourteenth Amendment had something different in mind 

for the due process or privileges and immunities clauses. Nor is there any 

indication that Congress intended this statute to enforce different provisions 

of the Fourteenth Amendment differently. Most probably a unitary 

constitutional standard was contemplated, and it was solely judicial 

interpretation that made the equal protection standard a less severe 

standard. Thus despite this statement by Justice Douglas in Screws, the 

  

legislative history of 18 US.C. §242 may still be helpful in understanding 

what standard the Reconstruction Congresses had in mind for the Fourteenth 

Amendment. [tis at least an open question whether the lack of scienter 

standard was intended to apply to the Equal Protection Clause. 

  

24 The Court cited Shevlin-Carpenter Co v. Minnesota, 218 US. 57; US. v. 

Balint 2358 US. 250 
  

19 

 



  

That the Civil Rights Act of [866 was successively amended in the 

1870s after the enactment of the Fourteenth Amendment tends to suggest 

that rigorous scrutiny should attach to Fourteenth Amendment violations. 

Simply the fact of the statutes is important. Reconstruction Congresses were 

apparently so concerned about the problem of racially discriminatory 

punishment that they considered it necessary 10 enact a criminal statute to 

do ostensibly what the Constitution set out to do. If punishment were so 

important an issue, it could be that when the discrimination involved 

punishment, the framers of the Fourteenth Amendment thought a more 

severe standard was necessary to guard against even the result of unequal 

punishment. This would have meant that something less than a 

discriminatory purpose was required. 

This reading of the statutes is perhaps also consistent with the way 

some would argue the jury selection standard has evolved. The jury 

selection statute, 18 US.C. §24325, which came out of the Reconstruction era, 

has. arguably, had something to do with the more severe standard that jury 

selection now enjoys in the equal protection context. In Peters v. Kiff, 407 
  

US. 493 (1972). Justice White, concurring, noted that "{bly this unambiguous 

provision, now contained in 18 U.S.C. 8243, Congress put cases involving 

exclusions from jury service on grounds of race in a class by themselves.” He 

then quoted from Fay v. New York, 332 US. 261, 282-283 (1947): "For us the 
  

majestic generalities of the Fourteenth Amendment are thus reduced to a 

concrete statutory command when cases involve race or color which is 

wanting in every other case oi alleged discrimination.” In light of this, 

perhaps we should argue that Congress also wanted discrimination in 

punishment to enjoy 4 more severe equal protection standard; that 

  

253 See supra note 6. 

 



  

command, we should argue, can only be met today by a standard that 

dispenses with the purpose requirement 2® 

Thinking along these lines taps in well with #3 of Eric Multhaup's 

memorandum of November 25, 1985. He argues there that in the post-Gregg 

universe, courts should be particularly “alert,” rather than “deaf” to counter- 

currents of applied discrimination in the otherwise unobjectionable capital 

statutes. If the framers considered discrimination in punishment so 

important an issue that an additional statute was necessary to enforce the 

Constitution, then such claims of discriminatory punishment should be held 

to the highest level of scrutiny. This arguably would compel the Equal 

Protection Clause to ensure against the situation where public officials 

simply condone the discriminatory implementation of the death penalty. 

Certainly drawing analogies from 18 US.C. §242, a criminal statute. to 

the Equal Protection Clause is a strained exercise. Yet this history should 

not be altogether discounted. It suggests that a statute which was meant Lo 

enforce the Fourteenth Amendment had a more severe standard than the 

usual criminal standard of purpose. The [act that 18 USC. 8242.15 a 

criminal statute does not seem problematic. {tis in the criminal context 

where the least severe standard of discrimination would apply: indeed, the 

fact that §20 was a criminal as opposed to a civil statute was a major factor 

in Justice Douglas decision to require a showing of specific intent under the 

statute. Perhaps we can infer from this that the framers intended the 

Fourteenth Amendment -- which also attempts to prevent discrimination in 

punishment -- to have a qualitatively more severe standard, one that goes 

  

26 [t is important to note that this argument is inconsistent with the 

argument noted in Question | that the modern jury selection standard 
evolved from Davis and was {irst implemented in Castaneda, and that it had 
nothing to do with Congressional statutes. 

  

21 

 



  

  

beyond a purpose requirement and approaches a duty on public officials to 

prevent even the effects of discrimination. 

1V. Whether the same standard utilized to make out a violation of 42 USC. 

§1983 was originally intended to apply to Fourteenth Amendment 

violations? 

  

  

  

  

  

42 US.C. 5198327 is the civil law counterpart to 18 US.C. §242. 

Although 42 US.C. §1983 does not expressly refer to punishment, it provides 

a civil remedy to those who have been deprived of rights secured by the 

Constitution or laws of the United States. In Parratt v. Taylor, 451 US. 527 
  

(1981). the Court noted that "42 US.C. §1983, unlike its criminal counterpart 

[18 US.C. 8242]. has never been found by this Court to contain a state-of - 

mind requirement,” citing Monroe v_ Pape, 365 US. 167 (1961). In Monroe, 
  

the Court distinguished Screws and the finding there of a specific intent to 

deprive a person of a federal right under 18 US.C. $242 because the word 

"willfully" does not appear in 42 US. C. §1983 and because §1983 provides a 

civil and not a criminal remedy that could be challenged on vagueness 

  

grounds. Monroe, 365 US. at 187. Instead of a state-of -mind requirement, 

31983 “should be read against the background of tort liability that makes a 

man responsible for the natural consequences of his actions.” Id. at 187. 

Under §1983, then, public officials who could reasonably forsee that their 

actions could result in discrimination would be liable for their discriminatory 

  

27 42 USC. 81983 provides: "Every person who, under color of any statute, 
ordinance, regulation, custom, or usage. of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any citizen of the 
United States or other person within the jurisdiction thereof to the 
deprivation of any rights. privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action at iaw, 
suit in equity, or other proper proceeding for redress. 

 



  

  

actions. Perhaps this standard could be construed to mean that public 

officials have a duty to prevent discrimination if a discriminatory result is 

the forseeable consequence of their actions. 

In Monroe, the Court traced the history of the42 US.C. §1983 before 

  

concluding that a tort liability standard, as opposed to an intent standard. 

was appropriate. The statute was first enacted as §1 of the Klan Act of April 

20. 1871.28 This statute. like the Enforcement Act of 1870, was passed 

pursuant to §5 power of the Fourteenth Amendment. Sen. Edmunds. chair of 

the Judiciary Committee that reported the Bill. noted that the first section of 

the Act “is merely carrying out the principles of the Civl Rights Bill which has 

since become a part of the Constitution.” Indeed, the Act was also known as 

"An Act to Enforce the Provisions of the Fourteenth Amendment to the 

Constitution.” Thus this statute, like the precursors of 18 US.C. 8242, was 

meant expressly to enforce the Equal Protection Clause, and statute never 

required a showing of discriminatory purpose. Also, according to Justice 

Douglas. its aim was to provide a federal remedy where the state remedy, 

though adequate in theory, was not available in practice; id. at 174: the 

statute was not intended to create new rights or remedies (other than 

providing a federal forum. but only those which the Fourteenth Amendment 

already contemplated. 

Given these two facts -- i.e. that the statute was meant 10 enforce the 

provisions of the Fourteenth Amendment, and that it was not intended to 

create new rights -- it would not be unreasonable to argue that the 

standards of proof contemplated under the Constitution and statute. laws 

passed with three years of one another, were similar if not identical. As the 

Court in Monroe found that $1983 has ‘never’ been found to have a state-of - 

  

23 [7 Stat. 13. 

 



  

mind requirement, perhaps it is possible also to infer that a state-of -mind 

requirement was not intended by the framers to attach to Fourteenth 

Amendment violations. 

A review of the legislative history of the 1871 Act does suggest that 

something less than a discriminatory purpose could satisfy a statutory claim. 

Congresspersons who spoke about the statute focused on the impact of the 

discrimination. and not the discriminatory purpose. For example, Burchard 

of Illinois stated: 

But if the statutes show no discrimination, yet in its judicial tribunals 

one class is unable to secure that enforcement of their rights and 

punishment for their infraction which is accorded to another, or if 

secret combinations of men are allowed by the Executive to band 

together to deprive one class of citizens of their legal rights without a 

proper effort to discover, detect, and punish the violations of law and 

order, the state has not afforded to all its citizens equal protection of 

the laws.2? 

Rep. Beatty of Ohio stated: 

[Mlen were murdered, houses were burned, scourged, and officers of 

the law shot down: and the State made no successful effort to bring 

the guilty to punishment or afford protection or redress to the 

outraged and innocent. The State, from lack of power or inclination, 

practically denied the equal protection of the [aw to these persons.30 

Again echoing the equal protection theme, Mr. Hoar of Massachusetts stated: 

Now, it is an effectual denial by a State of the equal protection of the 

laws when any class of officers charged under the laws with their 

administration permanently and as a rule refuse to extend that 

protection. If every sheriff in South Carolina refuses to serve a writ 

for a colored man and those sheriffs are kept in office year after vear 

by the people of South Carolina, and no verdict against them for their 

  

29 Cong. Globe, 42d Cong ist Sess at 31). 

30 Id. at 428. 

 



  

failure of duty can be obtained before a South Carolina jury. the State 

of South Carolina, through the class officers who are its 

representatives to afford the equal protection of the laws to that class 

of citizens, has denied that protection.3! 

Mr. Lowe of Kansas said, "While murder is stalking abroad in disguise, while 

whippings and lynchings and banishment have been visited upon 

unoffending American citizens, the local administrations have been found 

inadequate or unwilling to apply the proper corrective."32 

When public officials did not, for whatever reason, vigorously enforce 

the Constitution or the laws of a state, these Congresspersons contemplated 

that those officials would be liable to the victims of discrimination. They 

contemplated a duty of officials to guard against discriminatory application 

of the laws, under both the 1871 Act and the Fourteenth Amendment. 

Justice Douglas concluded after reviewing this legislative history: "It is 

abundantly clear that one reason the legislation was passed was to afford a 

federal right in federal courts because, by reason of prejudice, passion, 

neglect, intolerance or otherwise, state laws might not be enforced and the 

claims of citizens to the enjoyment of rights, privileges, and immunities 

guaranteed by the Fourteenth Amendment might be denied by the state 

agencies.” Id. at 180. He also noted the Act was meant as a remedy against 

State officials who were "unable or unwilling to enforce state law.” Id. at 176 
  

(emphasis in original). Discriminatory purpose was not an essential 

requisite to establish a statutory violation. Indeed, if the state were, for 

whatever reason, ‘unable’ to prevent discrimination, the legislative history 

of the statute strongly suggests that the state would be liable under the 

statute. 

  

 



  

In light of this history, and the de-emphasis of a requirement of 

discriminatory purpose, it is important to remember that the Act was meant 

expressly to enforce the Fourteenth Amendment. [ndeed, the 

Congresspersons who spoke to the Act considered it in relation to the Equal 

Protection Clause, and nowhere did they distinguish between standards 

necessary to establish either an equal protection violation or a violation 

under the Act. Perhaps we can conclude. therefore, that a requirement of 

discriminatory purpose under the Equal Protection Clause was not 

contemplated by the framers of the Fourteenth Amendment. 

Conclusion 

Application of the jury selection standard outside of the jury 

selection context and to cases like McClesky ought not be rejected simply 

because the requirement of representativeness is unique to jury selection. 

The requirement of a representative jury has been around for one hundred 

years. and it has only been within the last ten years since Castaneda that a 
  

 gualitatively different equal protection standard attached to jury selection. 

The basis for the change in the standard was not rooted in the 

representative requirement. 

It is possible, then, that the constitutional duty recognized under the 

jury selection standard not to pursue a course of conduct that operates to 

discriminate on racial grounds could also appiy outside of jury selection 

context. As interpreted, this duty seems to have added little to the pre- 

Castaneda standard beyond making ‘ingenuous’ forms of discrimination 

unconstitutional. For the duty to be applicable to cases like McClesky, it 

must be construed to prevent {ar more subtle forms of discrimination. One 

26 

 



  

way to do this is to argue under the post-Castaneda standard. the duty 

should jnterpreted to be, like the standard, far more expansive, so that it 

works to ensure that public officials act to prevent discriminatory results. | 

am not persuaded by this argument. 

The Reconstruction statutes strongly support the possibility that the 

framers of the Fourteenth Amendment did not contemplate that a showing 

of discriminatory purpose would necessarily accompany successful equal 

protection claims. Importantly, the precursors of both 18 USC 8242 and 42 

US.C 51983. most of which were enacted expressly to enforce the provisions 

of the Fourteenth Amendment, did not require a showing of discriminatory 

purpose to make out a statutory violation. The fact that Congress passed 

several criminal laws specifically designed to address the problem of 

discriminatory punishment also suggests that Congress intended that a 

severe standard ought apply to claims of unequal punishment. Certainly the 

Fourteenth Amendment was also aimed at stamping out discrimination in 

punishment. and it is not unreasonable to infer that a similarly severe 

standard was contemplated under the Equal Protection Clause. 

27 

 



  

November 3, 1982 

The Honorable J. Owen Forrester 

United States District Judge 

2367 United States Courthouse 

Atlanta, Georgia 30303 

Re: Warren McCleskey v. Walter D. Zant 

Civ. Action No. C81-2434A 
  

Dear Judge Forrester: 

I am writing as co-counsel for Warren 

McCleskey to request a continuance of several 

weeks in the evidentiary hearing presently 

scheduled in McCleskey's case for November 19, 

1632. .Counsel would nol suggest a delay inthis 

case except with the greatest reluctance and 

under the unusual circumstances set forth 

below: 

(1). 'Y have four other commitments 1in 

capital cases between now and November 19th, 

including (a) a successive state habeas corpus 

hearing on November 8, 1982 in John Smith/Machetti 

v. Zant in the Superior Court of Butts Counly; 

(b) a further evidentiary hearing on November 16, 

1982 in House v. Balkcom in The United States 

Digtrict Court for the Northern District of 

Georgia; (co) an opening brief due November 22, 

1082 in ‘Ross v. Hopper in the United States 

Court of Appeals for the Eleventh Circuit; and 

(d) an opening brief due November 22, 1982 in 

Spencer v, Zant, alsco'in the Eleventh Circuit. 

  

  

  

  

id) @n light of my other commitments 

cutlined above, it will be extremely difficult, 

if not impossible, for me to be adequately prepared 

to examine Professor Baldus and other expert wit- 

nesses on the extremely complex and extended social 

scientific and statistical evidence they have 

assembled. Although possessed of a general famil- 

jarty with their studies, their methodologies, and 

their conclusions, I fear that without sufficient 

  

+} 0 COLUMBUS CiRCILE fz 12) B'3S-8397 N EV Y OR W., NY 10019 

 



  

The Honorable J. Owen Forrester 

Page. 2. 

November 3, 1982 

time to educate myself on the significant details 
of the analysis which are necessary to provide a 
complete record on this issue, my presentation may 
compromise the clarity and comprehensiveness of 
Professor Baldus' findings. 

(111) Finally, I note that the hearing 
is scheduled to begin on the Friday before 
Thanksgiving. It is certain that our direct case 
will require more than one day's presentation, and 
lt is possible that if will require three to five 
days of direct testimony. Both for the Court and 
for out-of-state witnesses, an uninterrupted hearing 
during successive days might be a more convenient way 
to proceed. While this consideration alone would, of 
course, not be controlling, nevertheless in conjunction 
with the points sel forth above it is apn additional 
factor to be considered. 

Thank you very much for considering 

this request. Best regards. 

  

John Charles Boger 

JCB:agf 

  

10 COL IMB US CrRICLE {212}:586-83897 NEWYORK, N.Y P90 195 

 



  

  
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g 

   





  

National Officers 

William T. Coleman, Jr. 
Chairman of the Board 

Robert H. Preiskel 
President 

Barrington DD. Parker, Jr. 
Vice President 

Harriet Rabb 
Secretary 

Eleanor S. Applewhaite 
Treasurer 

Executive Officers 

Julius LeVonne Chambers 
Diirector-Counsel 

James M. Nabrit HI 
Associate Divector-Counsel 

Elaine R. Jones 
Deputy Director-Counsel 

Charles Stephen Ralston 
Deputy Ditector-Counsel 

Board of Directors 

Billye Suber Aaron 
Atlanta, Georgia 

Anthony G. Amsterdam 
New York, New York 

Clarence Avant 3 
Los Angeles, California 

Mario L. Baeza 

New York, New York 

John T. Baker 
Bloomington, Indiana 

Alice M. Beasley 
San Francisco, California 

Mary Frances Berry 
Washington, D.C. 

Anita Lyons Bond 
St. Louis, Missouri 

William H. Brown HI 
Philadelphia, Pennsylvania 

Helen L. Buttenwieser 
New York, New York 

Jack G. Clarke 
New York, New York 

LH. Clayborn 
Dallas, Texas 

William K. Coblentz 
San Francisco, California 

Theodore L. Cross 
New York, New York 

Talbot D’Alemberte 
Tallahassee, Florida 

Allison S. Davis 
Chicago, Hlinots 

Ossie Davis 
New Rochelle, New York 

Peter J. Deluca 
White Plains, New York 

Adrian W. DeWind 
New York, New York 

Anthony Downs 
Washington, D.C. 

Robert F. Drinan 
Washington, D.C. 

Charles T. Duncan 
Washington, D.C. 

  

“COMMITTEE OF 100” Chairman, BISHOP PAUL MOORE, JR. 

Henry Aaron Dighann Carroll Marilyn Horne Eleanor Holmes Norton 
Steve Allen James E. Cheek John H. Johnson Richard L. Ottinger 
Arthur R. Ashe 
Lown Baez 

irch Bayh 
Yad Beamon 
Harry Belafonte 
Saul Bellow 
on C. Bennett 

rone Bemett, Jr. 
Viola W. Bernard 
Leonard Bernstein 
Hans A. Bethe 
ulian Bond 
{enry T. Bourne 
George P. Brockway 
Yvonne Brathwaite Burke 
Helen L. Buttenwieser 

Kenneth C. Edelin 
Boston, Massachusetts 

Marian Wright Edelman 
Washington, D.C. 

Christopher F. Edley 
New York, New York 

Helen G. Edmonds 
Durham, North Carolina 

David E. Feller 
Berkeley, California 

Clarence Finley 
New York, New York 

Norman C. Francis 

New Orleans, Louisiana 

Marvin E. Frankel 
New York, New York 

John Hope Franklin 
Durham, North Carolina 

J. Thomas Franklin 
Boston, Massachusetts 

Ronald T. Gault 
New York, New York 

Nannette B. Gibson 
Princeton, New Jersey 

Jack Greenberg 
New York, New York 

Gordon G. Greiner 
Denver, Colorado 

Lucy Durr Hackney 

Philadelphia, Pennsylvania 

Charles V. Hamilton 
New York, New York 

Louis Harris 

New York, New York 

Eliot Hubbard III 
Lincoln, Massachusetts 

Ann Hutchinson 
New York, New York 

Patricia L. Irvin 

New York, New York 

Herman Johnson 
Kansas City, Missouri 

Anna Faith Jones 
Boston, Massachusetts 

Jetta N. Jones 
Chicago, Hlinois 

Quincy Jones 
Los Angeles, California 

Anna J. Julian 
Oak Park, llinois 

Harry Kahn 
New York, New York 

Nicholas DeB. Katzenbach 
Morristown, New Jersey 

David E. Kendall 
Washington, D.C. 

Reginald F. Lewis 
New York, New York 

Connie S. Lindau 
New York, New York 

George E. Marshall, Jr. 
Los Angeles, California 

Robert McDougal, Jr. 
Chicago, Hlinois 

   
   

Shirley Chisholm 
Ramsey Clark 
Aaron Copland 
Bill Cosby 
Maxwell Dane 
Ossie Davis 
Ruby Dee 
Victoria Delee 
Ralph Ellison 
John Hope Franklin 
Mrs. A. G. Gaston 
Kenneth A. Gibson 
Roland B. Gittelsohn 
Charles E. Goodell 
Richard G. Hatcher 
Theodore M. Hesburgh 

‘Mrs. Percy Julian 
Horace M. Kallen 
Ethel Kennedy 
James Lawrence, Jr. 
Max Lemer 
W. Arthur Lewis 
John A. Mackay 
‘Horace S. Manges 
Henry L. Marsh III 
William James McGill 
Linda B. "McKean 
Karl Menninger 
Charles Mernll 
Arthur Mitchell 
Paul Newman 
Anthony Newley 

Paul Moore, Jr. 
New York, New York 

James M. Nabrit, Jr. 
Washington, D.C. 

Martin D. Payson 
New York, New York 

Stephen J. Pollak 
Washington, D.C. 

Glendora Mcllwain Putnam 
Boston, Massachusetts 

Daniel L. Rabinowitz 
Newark, New Jersey 

C. Carl Randolph 
New York, New York 

Gilbert T. Ray 
Los Angeles, California 

Henry T. Reath 
Philadelphia, Pennsylvania 

Norman Redlich 
New York, New York 

Charles B. Renfrew 
San Francisco, California 

Harvey C. Russell 
Yonkers, New York 

William H. Scheide 
Princeton, New Jersey 

Frederick A. O. Schwarz, Jr. 
New York, New York 

Bernard G. Segal 
Philadelphia, Pennsylvania 

Jacob Sheinkman 
New York, New York 

George C. Simkins, Jr. 
Greensboro, North Carolina 

Wayman F. Smith III 
St. Louis, Missouri 

Michael I. Sovern 
New York, New York 

Bonnie Kayatta-Steingart 
New York, New York 

Chuck Stone 
Philadelphia, Pennsylvania 

Jay Topkis 
New York, New York 

Cyrus R. Vance 
New York, New York 

James Vorenberg 
Cambridge, Massachusetts 

John W. Walker 
Little Rock, Arkansas 

Robert C. Weaver 
New York, New York 

M. Moran Weston 

New Rochelle, New York 

Roger W. Wilkins 
Washington, D.C. 

Karen Hastie Williams 
Washington, D.C. 

E. Thomas Williams, Jr. 
Bronx, New York 

Andrew Young 
Atlanta, Georgia 

Honorary Board Member 

Dorothy Rosenman 
New York, New York 

Leon E. Panetta 
Gordon A. B. Parks 
Sidney Poitier 
Joseph L. Rauh, Jr. 
Carl T. Rowan 
John L. Saltonstall, Jr. 
William H. Scheide 
Arthur Schlesinger, Jr. 
Charles E. Silberman 
John P. Spiegel 
‘William Styron 
Telford Taylor 
Robert Penn Warren 
Robert C. Weaver 
Tom Wicker 
Myrlie Evers Williams 

The “Committee of 100,” a voluntary cooperative group of individuals headed by Bishop Paul Moore, Jr., 

has sponsored the appeal of the NAACP Legal Defense and Educational Fund, Inc. since 1943 to enable the 

Fund to put into operation a program designed to make desegregation a reality throughout the United States. 

As of April 1989 

 



  

  

WARREN McCLESKEY 

Petitioner, 

vs. . HABEAS CORPUS 

2 NO. 
  

RALPH M. KEMP, Superintendent 

Georgia Diagnostic and 

Classification Center, 

Respondent. 

  

MOTION FOR LEAVE TO PROCEED IN FORMA PAUGPERIS 
  

The petitioner, WARREN MCCLESKEY, bv his undersigned 

counsel, moves the Court for leave to file his petition for 

habeas corpus, without prepayment of costs, and to proceed in 

forma pauperis. An affidavit by petitioner in support of this 
  

motion is attached hereto. 

Respectfully Submitted, 

  

ROBERT H. STRODP 

141 Walton Street 

Atlanta, Georgia 30303 

 



  

IN THE SUPERIOR COURT OF BUTTS 

STATE OF GEORGIA 
  

WARREN McCLESKEY st y 
Petitioner, Civil Action No. 

  

  

D-0023035 ’ 
Inmate Number Habeas Corpus 
  

vs 

RALPH KEMP, , Warden 
  

Georgia Diagnostic & Clgssification Center, 

Name of Institution 
Respondent. 

  

  

Request to Proceed in Forma Pauperis 
  

I, WARREN McCLESKEY , being first duly sworn, depose and 
  

a that I am the plaintiff in the above entitled case; that in 

support of my motion to proceed without being required to prepay 

fees, costs or give security therefor,I state that because of my 

poverty I am unable to pay the costs of said proceeding or to give 

security therefor; that I believe I am entitled to redress. 

I further swear that the responses which I have made to ques- 

tions and instructions below are true. 

l. Are you presently employed? Yes ( ) No (4) 

a. If the answer is yes, state the amount of your 

salary or wages per month, and give the name and 

address of your employer. 

  

  

  

AOC-6 
(7-1-85) 

 



be. If the answer is no, state the date of last 

  

employment and the amount of the salary and wages 

per month which you received. 

pe — ’ & a? — Jo - 

~ 

  

  

  

3 Have you received within the past twelve months any 

money from any of the following sources:. 

a, Business, profession or form of self-employment? 

Yes ( ) Ro (+) 

b. Pensions, annuities or life insurance payments? 

Yes ( ) No (+) 

Ce Rent payments, interest or dividends? 

Yes ( ) No.  () 

a, Gifts or inheritances? 

Yes ( ) No (=) 

e. Any other sources? 

Yes (4) NoO=:L.) 

If the answer to any of the above is yes, describe each 

source of money and state the amount received from each 

during the past twelve months. 

= pe 2 Fiat = ! 4 =) 

on
 

  

  

3. Do you own any cash, or do you have money in a checking 

or savings account? Yes (+) No ( ) (Include any 

funds in prison accounts) 

If the answer is yes, state the total value of the items 

owned. 

Ae A . - 
  

AOC-6 2 Ss 
(7-1-85) 

 



  

4, Do you own any real estate, stocks, bonds, notes, auto- 

mobiles, or other valuable property (excluding ordinary 

household furnishings and clothing)? 

Yes ( ) No (-) 

If the answer is yes, describe the property and state 

its approximate value. 

  

  

  

5 List the persons who are dependent upon you for finan- 

cial support; state your relationship to those persons, 

and indicate how you contribute toward their support. 

  

  

  

  

I understand that a false statement or answer to any ques- 

tion in this affidavit will subject me to penalties for perjury 

and that state law provides as follows: 

(a) A person to whom a lawful oath or affirmation 
has been administered commits the offense of 
perjury when, in a judicial proceeding, he 
knowingly and willfully makes a false state- 
ment material to the issue on point in question 

(b) A person convicted of the offense of perjury 
shall be punished by a fine of not more than $1000 
or by imprisonment for not less than one or more 
than ten years, or both....0.C.G.A.§16-10-70 

  

Signature of Petitioner 

AOC-6 
(7-1~-83) = 3m 

 



  

VERIFICATION 

State of Georgia, County of BUTTS 
  

Personally appeared before me, the undersigned officer authorized 
by law to administer oaths, the undersigned affiant, who having 
first been duly sworn, says under oath: That he is the plaintiff 
in this action and knows the content of the above Request to 
Proceed in Forma Pauperis; that the answers he has given are true 
of his own knowledge, except as to those matters that are stated 
in it on his information and belief, and as to those matters he 
believes them to be true. Affiant further says under oath that 
he has read the perjury statute set out above and is aware of the 

penalties for giving any false information on this form. 

/ 4 2 r 
4 ny 

Signature of Affiant Petitioner 
  

Subscribed and sworn to before me 

this i day of Moo pid | IE 
    

- - re t £, - I [} Tas 
— 

  

{Notary Public or other person authorized 

by law to administer oaths.) 

Notary Public. Fulion County Caorgid 
4 ; - A “rm NOY OY 

Mv Commission Expires May 30, 1990 
CERTIFICATION 

I hereby certify that the Plaintiff herein has an average 
monthly balance for the last Sustve U2 months of $§ 77 ¢ C 
on account to his credit at the A 
institution where he is confined. I further certify that Plain- 
tiff likewise has the following securities to his credit accord- 
ing to the records of said 

  

  

  

  

. ZZ 9 

Institution: “77 nn LR 
~~ 

=> 

x 7 7) 
  

If not confined for a full twelve (12) months, specify the number 
of months confined. Then compute average monthly balance on that 
number of months. 

  

if > 

  

| or 2, / in? nell ee /7 2 
Authorized Officer of] Institution Date 
  

(Please attach copy of Balance Sheet if available) 
will 

 



  

16 

when pressed by the Court to clarify his remarks. (Fed. III 61- 

64). 

On this record, Worthy’s July 9th testimony is credible and 

consistent; his August 10th testimony on this point is not. The 

Court’s August 10th observation that it "could think of no reason 

to discredit Worthy’s testimony" (Fed. III 119) is warranted on 

the whole; the Court should, however, reject Worthy’s clumsy 

attempt on August 10th to protect Detective Dorsey. 

5. The Testimony of District Attorney Parker   

Assistant District Attorney Russell Parker firmly denied 

ever meeting with Evans prior to July ‘12, 197s, (Fed. I 142; 

Fed. III 109). He also testified that he never requested that 

Offie Evans be moved near McCleskey or that Evans act to overhear 

or elicit information from McCleskey in the cell. (Fed. III 111- 

12). There 1s no reason, we believe, to doubt Mr. Parker on 

these points. Warren McCleskey’s constitutional claim does not 

depend on whether Parker was personally aware of the informant 

relationship. 

Parker never claimed that he possessed full knowledge of all 

steps taken by other officers investigating the case. To the 

contrary, he had no recollection of Detective Dorsey’s role in 

the McCleskey case at all (Fed. I 131: Fed. III 113), and more 

specifically, he did not remember Dorsey’s presence at the July 

12, 1978 meeting, even though his own notes indicate that Dorsey 

attended that meeting. (Ped. T 131; Fed. 113 113). Moreover, 

Parker was not aware of any interviews apart from the ones he 

 



  

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& 
FEDERAL BUREAU OF INVESTIGATION 

7/7/78 Date of tronscription 
  

  

  OFFIE GENE EVANS was interviewed at the Georgia 
Bureau of Investigation (GBI) Headquarters in Atlanta, Georgia. 
EVANS was advised of the official identities of the interviewing 
Agents and that he was being interviewed regarding an alleged 
violation of the Escaped Federal Prisoner Statute. 

EVANS was read his rights as set forth on an 
"Interrogation; Advice of Rights" form. EVANS was presented 
this form which he appeared to read. EVANS stated he understood 
his rights and signed his name to the form. . 

  EVANS admitted his true identity and thereafter 
provided the following information: 

EVANS indicated that on April 2, 1973, he appeared 
in U. S. District Court, Northern District of Georgia, Atlanta, 

and was convicted of forging and uttering a U. S. Treasury 
check and was subsequently sentenced to six years in prison. 
He was paroled from March 1975 until April 6, 1976, at which 
time he was returned to the U. S. Penitentiary in Atlanta, 
Georgia, to do the rest of his sentence. 

  
# 

While at the U. S. Penitentiary in Atlanta, Georgia, 
EVANS assisted DEA Agents and prison officials, specifically 
Lt. GEOUGE and Counselor WHITAIN, on a drug matter. 

At the Federal Community Treatment Center in Atlanta, 
Georgia (FCTC-A) EVANS tried to assist DEA Agents JIM WILLIAMS 
and PERSHING in drug matters. EVANS was not cleared by FCTC-A 
personnel to assist these agents. 

  
-— 

While assigned to FCTC-A, LAWSON advised EVANS that 
his urine test was positive for quinine. LAWSON restricted 
EVANS to FCTC-A, however, the next day EVANS signed out early 
in the morning and did not come back. The sign-out sheet 
had written across the top that he was restricted to FCTC-A 
but the clerk on duty let him go out anyway. EVANS was supposed 
to be back by 11:00 p.m. that evening, however, he did not make 

it back sole decided to stay out. 

    cs39- 14 
7/3/78 . Atlanta, Georgia 4 AT 76-6502» 

File Interviewed on 

SA BRUCE SI uson 
SA DAVID J. KELSEY/rk 7/6/78 

Date dictated 

  
    

  
  

/ J 

This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to 
your agency; it and its contents are not to be distributed outside your agency. FBI/DOJ  



  

AT 76-6502 

~ EVANS stated that he did not intend to escape 
as he had only 36 days to serve at FCTC-A with only 10 
or 11 left to go. EVANS knew it was against the law not 
to return to FCTC-A and EVANS knew he could be prosecuted 
for not returning to FCTC-A when he was supposed to. 

EVANS stated he figured that what he was doing 
would justify his not returning. 

EVANS telephoned KINNEBREW at FCTC-A last Friday 
and was told to return to FCTC-A but EVANS decided not to. 

EVANS stated he was arrested by GBI Agents at his 
house early this morning. 

Name 

Race 

Sex 

Date of Birth 

Place of Birth 

Height 

Weight 
Scar 

Wife 

Phone 

  

OFFIE GENE EVANS 
Negro 
Male 

August 15, .1935 
Monroe, Georgia 
58 
130 pounds 
One inch scar over 
right eye 

MABLE MURPHY EVANS, 

768-0723 

Hi ana Sarit LPR DEIR fof 40 HEL - Eo 

x . 1 EE ET £3 8 BE APD 5 v RE 

Bo Heb a fe a A gj rao AG SSL HL 
% gest - gy, 238 . Ay 4 54 WR a:b in a 1 « ’ +I 

Td y 3 1% p GSR I 
gorse si RSE we = HE 1335) 3h ES pi 

fou" oh 

% 

  

  

  

  

   



  

      

Nya HO Ue TSM Lua SAMARAS Cp. RT Tm an RN I SS a pela iia 

Se TURN TRG TRUE RY Sal Re SERIA an » Tr te 2) 
" : 

N 
~ 
0 
ph 

3 
Post Office Box 1683 Ios 

Atlanta, Georgia 80301 i 
76-6539 oe 

December 28, 1978 

Mr. ¥illiam L. Harper i 

U. S. Attorney | | 
Northern District of Georgia | 
Atlanta, Georgia 

Fe 
Attention: Mr. James E. Baker ! 

Assistant U. S. Attorney i 
Chief, Criminal Section ied 

| 7% 
Dear Sir: Rie 

RE: OFFIE EUGENE EVANS | ie 
ESCAPED FEDERAL PRISONER fs 

This matter was discussed with Assistant U. S. 
Attorney (AUSA) William F. Bartee, Jr., of vour office oi] 
and Special Agent (SA) David J. Kelsey of our office. hi 
SA Kelsey furnished Mr. Bartee the enclosed letterhead Biiil 
memorandum which sets forth the facts concerning Evans’ Ba 
background, escape, and capture. In addition, Mr. a" 
Bartee was advised of the following: 

{ 
1.) Bureau of Prisons' officials at the U. S. Wil 

Penitentiary in Atlanta, Georgia, have indicated that i 
Evans has furnished information to them regarding criminal | ot 

activities at the U.S. Penitentiary, Atlanta, Georgia. fr 
Wt 

2+) Fulton County Assistant District Attorney po 
Russell Parker advised Evans testified at a murder trial ery 
(in which the victim was a police officer) that he Se 
(Evans) overheard the perpetrator admit to shooting the ] 
police officer. | 

3.) Bureau of Prisons' officials at the U.S. & J 
Penitentiary, in Atlanta, Georgia, have advised that as i 

a result of administrative action taken against Evans 
for escape, Evans' parole date of July 6, 1978, has 

     
By 

Enclosure 
2 / = 

aT NT ge BRL SE a ) OF 
-Addressee HG HE RCE | 

tlanta (76-6539) yo ; 5 278] 

DJK/cg 
Eo alal ex. 

  (2) 2 5 

 



  

    

    

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LJ 

{ 3 

rescinded. Evans is now scheduled for release at an 
undetermined date in 1979. 

Mr. Bartee declined prosecution of Evans for 
violating Title 18, Section 751 and Section 4082(4d), 
U. S. Code, as Evans was in escape status for a very 
short period of time; Evans’ escape was a ''walk away" 
as opposed to an actual escape from a penitentiary, 
and Evans' parole of July 6, 1978, was rescinded. 

Very truly yours, 

BENJAMIN H. COOKE 
Special Agent in Charge 

a 
DECLAN J. HUGHES 
Supervisory Special Agent 

By: 

  
   



UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

GAINESVILLE DIVISION 

  

JOSEPR WILSON, JR. 

CIVIL ACTION NO. (C83-93G 

Petitioner, 

V. 
HABEAS CORPUS 

RALPH KEMP, WARDEN, 

A 
% 

% 
3%

 
% 

¥ 
¥ 

* 
* 

Respondent. 

NOTICE OF FILING   

COMES NOW Ralph Kemp, Warden, Respondent in the 

above-styled action, and submits the instant notice of filing 

and attached exhibit to be submitted as a part of the record in 

the instant case. Respondent submits as Respondent's Exhibit 

No. 8, an affidavit from Joseph I... Katz, Ph.D. Said affldavit 

is submitted pursuant to the hearing held on PeciBer 30, 1983 

before this Court at which time Petitioner requested the 

opportunity to present additional evidence and Respondent 

requested the opportunity to present evidence to supplement 

that presented in McCleskey v. Zant, Civil Action No. C81-4234A 
  

and respond to any evidence submitted by the Petitioner in this 

case. The affidavit submitted from Dr. Katz is specifically in 

response to the brief submitted by the Petitioner in this case 

and specifically supplements the material submitted previously 

in McCleskey v. Zant. 
  

PY) 

 



  

WHEREFORE, Respondent requests that the instant document be 

filed as a part of the record and be considered as substantive 

evidence in this case. 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. 
Atlanta, Georgia 30334 

(404) 656-3349 

Ww. 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 
Executive Assistant Attorney General 

  

  

    

RION O. GORDON X 
irst Assistant Attorney General 

  

A Si 
LLIAM B rd ’ 

Senior resistaf Se rney General 

Dis Lo ibs bvtie lend 
  

ra WESTMORELAND 
AC tant Attorney General 

i 

 



   
STATE OF GEORGIA 

COUNTY OF FULTON 

A FPFPIDAVLIT   

Personally appeared before me, the undersigned, an officer duly authorized 

to administer oaths, JOSEPH L. KATZ, Ph.D., who after first being duly sworn, 

deposes and says: 

l. 

That he is presently under contract with the Department of Offender 

Rehabilitation and has conducted studies and analyses of the data and reports 

Of Professor David C. Baldus pursuant to said contract; 

2% 

That he testified as an expert witness for the Department of Offender 

Rehabilitation in the case of Warren McCleskey v. Walter Zant, Civil Action   

No. CB1-2434A in the United States District Court for the Northern District of 

Georgia; 

3 Ld 2 sf 

That he has conducted further analyses of the data provided by Professor 

David C. Baldqus to be utilized in the case of Joseph Wilson, Jr. v. Ralph   

Kemp, Civil Action No. CV83-93G, presently pending in the United States 

District Court for the Northern District of Georgia, Gainesville Divison; 

RESPONDENT'S EXHIBIT NOC. 8 

 



4. 

  

That he examined the data in both the Procedural Reform Study and the 

Georgia Charging and Sentencing Study for cases in which the defendant was 

convicted in the Superior Court of Forsyth County, Georgia. The Procedural 

Reform Study has three cases from Forsyth County and Joseph Wilson is not one 

of those three cases. The Georgia Charging and Sentencing Study has a total 

of eight cases from Forsyth County which include the three cases from the 

Procedural Reform Study and the case of Joseph Wilson. The defendants in each 

of the eight cases from Forsyth County are classified by Professor Baldus as 

white. Seven of these cases are classified as having white victims with the 

race of victim for the eighth case being indicated as unknown. 

In the analysis that was performed earlier by Professor Baldus on the data 

in the Georgia Charging and Sentencing Study, cases in which the race of the 

victim was unknown were assumed to have the same race as the defendant; 

therefore, the one case out of Forsyth County in which the race of the victim 

is indicated to be unknown would be classified for purposes of Professor 

Baldus' analysis as having a white victim as the case has a white defendant. 

No variation exists in the defendant-victim racial combination in Forsyth 

County; therefore, the effect of race of defendant or race of victim on 
1 

sentencing outcomes cannot be determined. 

 



  

5. 

Affiant further states that the following information is presented to 

supplement the testimony given by affiant in the case of McCleskey v. Zant 
  

before the Honorable Owen Forrester, and is in response to the order in that 

case and the brief of Petitioner in the case of Wilson v. Kemp. The following 
  

is based on affiant's analysis of the data provided by Professor David C. 

Baldus. 

a. The Relationship Between Regression and 
  

Crosstabulation In Controlling For Variables 
  

Crosstabulation is the usual statistical method for measuring the effect 

of one variable after controlling for the effects of several related 

variables. When all the variables of interest take on values of 0 or 1 

exclusively, there also exists a direct relationship between regression and 

crosstabulation methods, which is illustrated by the following example. 

The Georgia Charging and Sentencing Study lists 1,018 defendants who were 

indicted for murder. Professor Baldus defined the variable DPMURIDT to be 1 

for those cases in which the defendant received a death sentence (127 cases) 

‘and O for those cases in which a lesser sentence was imposed (891 cases). 

Overall, death sentences were imposed on 12.0% (127/1018) of the defendants 

who were indicted for murder. In this example, the effects of the three 

variables, MULSH (multiple gunshots), BLVICMOD (family, lover, liquor, barroom 

quarrel) and PREMEDK (killing planned more than five minutes), on death 

sentencing rates have been examined using both the crosstabulation and 

~~ ~~ rd rn a tparey ss rs nn 3 vos ee ne 

 



    

regression techniques. Consider first the effect of the variable MULSH 

(multiple gunshots) on death sentencing rates, which are calculated for cases 

categorized based on the occurrence of the variable MULSH. 

  

  

  

  
  

  

  

Table 1 

1 

. 127%" 

1-11018.! 

32,1200" 

MULSH=1 MULSH=0 

| 1 
2 3 

id 35 : : S92 : 

! 26060 : : 7152 : 

yz, 1316! ! 2,122 
  

  

According to the crosstabulated cells 2 and 3, death sentences were imposed in 

13.16% of the cases in which MULSH occurred (MULSH=1), whereas a death 

sentence was imposed in 12.23% of the cases in which MULSH did not occur 

(MULSH=0). Therefore, the variable MULSH shows little affect on the resulting 

death sentencing rates since the death sentencing rate for those cases in 

which MULSH occurred (.1316) is very close to the death sentencing rate in 

which MULSH did not occur (.1223). Therefore, according to Table 1, the 

occurrence of MULSH in a case tends to increase, on the average, the death 

sentencing ‘rate by only .0093 (.1316 - .1223). 

A regression model can also produce the same information that is deducible 

from the crosstabulations in Table 1. A simple linear regression with 

 



   
dependent variable DPMURIDT and independent variable MULSH produces the 

following equation: 

(1) DPMURIDT = .1223 + .0093(MULSH) 

In equation (1), the constant .1223 is the death sentencing rate when the 

variable MULSH has not occurred, and the coefficient of MULSH .0023 is the 

increase in the death sentencing rate (.1316 - .1223) that is due to the 

occurrence of the variable MULSH. Since the p-value of the variable MULSH is 

.6955 in this regression, it follows that the occurrence of MULSH alone does 

not have a substantial effect on death sentencing rates. 

To control for the second variable BLVICMOD (family, lover, liquor, 

barroom quarrel), the crosstabulation from Table 1 is augmented as presented 

in Table 2. 

  

  

  

  
  

  

  

  
  

        

  
  

  

  

Table 2 

1 

: 12d = 

: 1018. ! 

=. 1200! 

MULSH=1 MULSH=0 

71 
2 3 

: SH ie . O21 

: 66 : : 752 1 

! =,1316! y = 1233! 

BLVICMOD=1 BLVICMOD=0 BLVICMOD=1 # BLVICMOD=0 

f i I . i 

) 5 : 29. .! : Bea 2 87 
: 12) : : 145 : : 327 : 3 425 2 

« =.049%96! 3 =.,2000. !1'=_,0153) 1m 204871 
  

  
  

  

  

 



  

The death sentencing rates after controlling for both variables MULSH and 

BLVICMOD are summarized in Table 3. 

  

Table 3 

CELL NUMBER MULSH BLVICMOD DEATH SENTENCING RATE 

4 1 1 4.90% 

5 ) 0] 20.00% 

6 0 : 3 1.53% 

7 0 0] 20.47% 

According to the information in Table 3, the variable BLVICMOD is shown to 

have a mitigating effect on death sevitencink rates. This observation is based 

on the low death sentencing rates 4.96% and 1.53% that are found in cells 4 

and 6 when the variable BLVICMOD occurred in the case, and on the 

substantially higher death sentencing rates 20.00% and 20.47% that are found 

in cells 5 and 7 where the variable BLVICMOD did not occur. The numbers in 

Table 3 may also be explained in the following manner. In cases where neither 

variable MULSH or BLVICMOD occurs, the death Sentencing rite is .2047. 1f only 

the variable MULSH occurs, then the death sentencing rate drops to .2000, 

whereas if only the variable BLVICMOD occurs, the death sentencing rate drops 

to .0153. Therefore, the lone occurrence of the variable MULSH has the effect 

of changing (reducing) the death sentencing rate by -.0047 (.2000 - .2047). 

whereas the lone occurrence of the variable BLVICMOD has the effect of 

changing (reducing) the death sentencing rate by -.1894 (.0153 - .2047). If 

there is only an additive effect on death sentencing rates between the two 

 



   
variables MULSH and BLVICMOD, then the death sentencing rate for the cases 

where both MULSH and BLVICMOD occurred would be .0106 as tabulated below. 

.2047 death sentencing rate when neither MULSH nor BLVICMOD occur 
- .0047 death sentencing rate when MULSH occurs 
- .1894 death sentencing rate when BLVICMOD occurs 

.0106 
  

The actual death sentencing rate for the cell when both MULSH and BLVICMOD 

occur (cell 4) is .0496. Therefore, a two-way interaction effect between the 

two variables MULSH and BLVICMOD is said to exist that increases the death 

sentencing rate by an amount .0390 (.0496 - .0106) when both MULSH and 

BLVICMOD occur in a case. 

This same information can be drawn directly from the regression model that 

appropriately controls for both variables and the two-way interaction effect. 

Let DPMURIDT again be the dependent variable and let MULSH, BLVICMOD, and the 

two-way interaction variable MULSH*BLVICMOD be the three independent 

variables. The two-way interaction variable for MULSH and BLVICMOD, written 

MULSH*BLVICMOD is constructed for each of the 1,018 cases as follows. If both 

MULSH and BLVICMOD occurred in a particular case, that is if both variables 

MULSH and BLVICMOD are 1 for a particular case, then the two-way interaction 

variable is defined to be 1 for that case. Otherwise, the two-way interaction 

variable MULSH*BLVICMOD is 0 for that case. The regression model is presented 

as equation (2). 

(2) DPMURIDT = .2047 - .0047(MULSH) - .1894(BLVICMOD) + .0390 (MULSH*BLVICMOD) 

The constant term, .2047, represents the death sentencing rate when both MULSH 

and BLVICMOD do not occur in the case. The coefficients of the independent 

 



   
variables in equation (2) represent the change in the death sentencing rate, 

.2047, due to the occurrence of the independent variable in the case. For 

example, the occurrence of only the variable MULSH reduces the death 

sentencing rate. from .2047 down to .2000. Therefore, the change in death 

sentencing rates due to the occurrence of MULSH is -.0047 which is exactly the 

coefficient of the independent variable MULSH. Since the variable BLVICMOD did 

not occur, then the value of both the variable BLVICMOD and the two-way 

interaction variable (MULSH*BLVICMOD) would be zero yielding a predicted death 

sentencing rate of .2000 (exactly the appropriate crosstabulated death 

sentencing rate) for cases in that category. A similar interpretation applies 

to the coefficient -.1894 for the variable BLVICMOD as the marginal effect on 

the death sentencing rate .2047 for cases in which BLVICMOD occurred and MULSH 

did not occur. Therefore, the death sentencing rate for those cases in which 

BLVICMOD occurred and MULSH did not occur is .0153 (.2047 - .1894). Finally, 

the coefficient of the two-way interaction variable MULSH*BLVICMOD represents 

the effect on death sentencing rates that results due to the fact that the 

marginal effects of the variables MULSH and BLVICMOD tale perfectly 

additive, as is apparent from the following tabulation: 

> f 

.2047 death sentencing rate when neither MULSH nor BLVICMOD occur 
—- .0047 death sentencing rate when MULSH occurs 

- .1894 death sentencing rate when BLVICMOD occurs 
.0390 coefficient of MULSH*BLVICMOD   
.04926 death sentencing rate when both MULSH and BLVICMOD occur 

 



   
Consider the regression with the same dependent variable DPMURIDT but with 

only the two independent variables MULSE and BLVICMOD as shown in equation (3) 

below: 

(3) DPMURIDT = .2002 + .0128(MULSH) - .1792(BLVICMOD) 

As a result of omitting the two-way interaction variable MULSH*BLVICMOD, the 

coefficients for the constant term and the independent variables are slightly 

distorted as compared to the respective coefficients in the earlier regression 

in equation (2). This distortion in the coefficients is due to the fact that 

there exists a slight interaction effect in the MULSH*BLVICMOD variable for 

which the regression in equation (3) is attempting to numerically compensate. 

In this example, the two-way interaction variable MULSH*BLVICMOD is not 

significantly different than 0; therefore, the distortion that results from 

the omission of this two-way interaction variable is only slight. If a strong 

interaction effect existed, the noninclusion of this interaction effect could 

seriously distort both the size and significance of variables that are 

presented in the regression model. 

Table 4 presents the crosstabulations after controlling for the third 
of 

[> 

variable PREMEDK (killing planned more than 5 minutes). 

 



  

Table 4 

  

  

  

  
  

  

  

    

  

  

    

  

  

    

  

  

    

  
  

  

  

    
  

  

  

1 
JE 
2 Toit 

! =,1200! 

MULSH=1 MULSH=0 
f ~3 
2 3 

7 357 TEE 
ro 9 tog TES. 

tie, 1336) ! =.,1223! 

BLVICMOD=1 BLVICMOD=0 BLVICMOD=1 BLVICMOD=0 
{ ; | 

T A TTT T TET 
ELT t+ Tas. a io F271 1 39 

! '=,0496! ! =.2000! ! =.0153! ' =.2047! 

PREMEDK=1| PREMEDK=0 PREMEDK=1|PREMEDK=0 PREMEDK=1| PREMEDK=0 PREMEDK=1| PREMEDX=0 
| ] | a | 3 RB 

8 9 10 11 12 12 14 15 
PE TRY THY AT av IW OTT TI It 4 Iwi 7 
HEE nr FE a FEE ay FEA WIGITE Ge BTR a 1 ER AY a Ese 

ae. 0857! 1 =. 0349! =.26920 1 £.119400 =.0408! 12.0108! ! =. 8406) I =. 1304! 
  

The death sentencing rates for 

PREMEDK are summarized in Table 5. q 

cases after controlling for the variable 

  

Table 5 

CELL NUMBER MULSH BLVICMOD PREMEDK DEATH SENTENCING RATE 

8 X 1 1 8.57% 

| 1 i 0 3.49% 

10 1 0 l 26.92% 

11 : 0 0 11.94% 

32 0 l 1 4.08% 

13 0) 1 0] 1.08% 

14 0 0 1 34.06% 

15 0 0 0 13.94% 

s.r SAE mre antral et T—————— -. 

«1 0~ 

 



   
The information on death sentencing rates in Table 5 can again be deduced from 

a regression model. Again, the dependent variable is DPMURIDT, whereas seven 

independent variables are required namely, MULSH, BLVICMOD, PREMEDK, 

MULSH*BLVICMOD, MULSH*PREMEDK, BLVICMOD*PREMEDK, and MULSH*BLVICMOD*PREMEDK. 

Of the 7 independent variables, three are original variables, three are 

two-way interaction variables and one is a three-way interaction variable. The 

regression model is given in equation (5). 

(5) DPMURIDT = .1394 - .02(MULSH) - .1286(BLVICMOD) + .2012(PREMEDK) 

+ .0441(MULSH*BLVICMOD) - .0514(MULSH*PREMEDK) - .1712(BLVICMOD*PREMEDK) 

+ .0722(MULSH*BLVICMOD*PREMEDK) 

Again, the coefficients in the regression in equation (5) are directly related 

to the death sentencing rates from the crosstabulations. The constant term, 

.1394, is the death sentencing rate when none of the three variables are 

present in the case. The coefficient of MULSH is equal to ,1194 - .1394 or 

-.02 and represents the marginal effect on death sentencing rates if only 

MULSH occurs and both BLVICMOD and PREMEDK do not occur. As the lone 

occurrence of BLVICMOD has a death sentencing rate of .0108, its coefficient 
pe 

must be (.0108 - .1394) or equal to -.1286. The coefficient for PREMEDK can be 

deduced in a similar fashion. The coefficient of a two-way interaction term, 

such as MULSH*BLVICMOD, is determined by the situation when both MULSH and 

~1i= 

MAAR ATA =~ TAILS ns SA Tn tye Aa Sh Bren ne tm 

 



   
BLVICMOD occur and PREMEDK does not occur. Since the death sentencing rate in 

this situation is .0349, then the coefficient is found as follows: 

.1394 death sentencing rate when all 3 variables do not occur 

- .0200 coefficient of MULSH 
+1280 coefficient of BLVICMOD 

+ coefficient of MULSH*BLVICMOD 
0377. death sentencing rate when only MULSH and BLVICMOD occur 

The solution for x (the coefficient of MULSH*BLVICMOD) is .0441. The 

coefficients for the two other two-way interaction variables are found in a 

similar manner. The coefficient for the three-way interaction variable 

MULSH*BLVICMOD*PREMEDK is computed as follows: 

.1394 death sentencing rate when all 3 variables do not occur 

.0200 coefficient of MULSH 

.1286 coefficient of BLVICMOD 

+ .2012 coefficient of PREMEDK 

+ .0441 coefficient of MULSH*BLVICMOD 

- .0514 coefficient of MULSH*PREMEDK 

- .1712 coefficient of BLVICMOD*PREMEDK 

pe xX coefficient of MULSH*BLVICMOD*PREMEDK 
+ .0857 death sentencing rate when all three variables occur 

i 

Thus the coefficient x for the three-way interaction variable 

MULSH*BLVICMOD*PREMEDK is .0722. 

[; 
Equation (6) displays the regression model if all the two-way and 

three-way interaction variables are omitted. 

(6) DPMURIDT = .1552 - .0115(MULSH) - .1529(BLVICMOD) + .1353(PREMEDK) 

A comparison of the coefficients in Table 6 between the regressions in 
& 

equation (5) and equation (6) shows substantial distortion for the variable 

PREMEDK, and slight distortion for the other coefficients Que to the exclusion 

of the interaction variables. 

i SE 

 



  

Table 6 
  

COEFFICIENTS FOR 

REGRESSION WITH 

COEFFICIENTS FOR 

REGRESSION WITHOUT 

  

VARIABLE INTERACTION VARIABLES a INTERACTION VARIABLES 

Constant «1394 «31552 

MULSH - 0200 - «0115 

BLVICMOD - «1286 -1.9 1529 

PREMEDK «2012 1353 

Regression can be used as a complete substitute to crosstabulations as a 

method to control for variables only if all the relevant interaction variables 

are also included in the regression model. If important and significant 

interaction variables are not represented. ih the regression model, and assumed 

to be negligible or zero, there may be a substantial distortion in the 

interpretation of the controlling effect as represented in the regression 

model relative to the actual crosstabulated results. 

b. On The Use of Crosstabulations or Regressions 
  

in the Georgia Charging and Sentencing Study 
  

‘Due to the fact that the Georgia Charging and Sentencing Study has at most 

1,082 observations, either method of controlling for variables, 

crosstabulations or regressions, will be severely limited as to the number of 

variables that could be completely controlled for. For example, if one 

attempted to use the crosstabulation technique to control for 10 variables, 

1024 cells (2 raised to the tenth power) would be generated for the tenth 

level, where all cases would be classified according to the BecRELence Or 

nonoccurrence of the 10 control variables. Since only 1,082 cases are 

3 

 



   
available from the Georgia Charging and Sentencing Study, the expected small 

number of cases in each cell on the controlled tenth level eliminates the 

possibility of meaningful statistical comparisons of these observations within 

the same cell. Similarly, the equivalent regression model with all the 

appropriate interaction variables would require exactly 1023 variables. In 

general, controlling for n variables generates 2 (2 raised to the n power) 

cells for the nth level and 2" - 1 variables for the equivalent regression 

model. Therefore, the use of regression as an equivalent approach to the 

crosstabulation method also suffers from the relative small sample size that 

is available in relationship to the number of potential important controlling 

variables. Professor Baldus has defined over 230 potential aggravating and 

mitigating factors in the Georgia Charging and Sentencing Study that could 

conceivably affect, in his view, death sentencing outcomes. A regression model 

that would control for all 230 variables and that would be equivalent to the 

crogstabulation results would require 2 raised to the 230th power minus 1 ox 

approximately in scientific notation, 1.7 x 10%° (which is equivalent to _the 

number 17 followed by 68 zeroes) variables. The number or interaction terms 

required in the regression model may be reduced somewhat if it can be shown 

that some of the potential interaction effects have negligible or no effect 

with regard to death sentencing rate (that is the coefficient of the 

interaction variable is zero in the regression model). However, affiant's 

analysis of some interaction variables shows the existence of substantial 

interaction effects. The omission of interaction variables can completely 

& 

distort the size, direction, and significance of the regression coefficients 

for. all variables. 

-14- 

 



   
It is unlikely that the Georgia Charging and Sentencing System will ever 

process enough offenders to produce a large enough sample size so that all 230 

potentially aggravating and mitigating factors that were defined by Professor 

Baldus could be controlled for. 

c. Multiple Regression and Crosstabulation 
  

Analysis With An Incomplete Data Set 
  

One critical consideration as to the proper application of any 

multivariate technique rests on the accuracy and completeness of the data set. 

As tabulated in Respondent's Exhibit 18A in McCleskey v. Zant, the Georgia   

Charging and Sentencing Study contains a larde number of unknown values for 

the questionnaire item variables. For example, suppose one attempted to 

perform a multiple regression or crosstabulation experiment that controlled 

for the three variables TRIANGLE (lover's triangle was a special precipitating 

event), EXECUT (execution style murder) and DRESIST (defendant actively 

resisted arrest) in the Georgia Charging and Fontoncing Stay. The data file 

for this study indicates that the occurrence of the variable TRIANGLE was 

unknown in a total of 74 cases, the occurrence of the variable EXECUT was 

unknown in 109 cases, and the occurrence of the vavishie DRESIST was unknown 

in 67 cases. For the three variables listed above, there are a total of 194 

cases which have one or more unknown values for the variables listed above. 

Without the correct information about the true value of these unknowns, it is 

impossible to correctly classify these 194 cases so that they are "similarly 

situated" with regard to the three varizbies listed above. The usual 

statistical method of dealing with unknowns in crosstabulation analysis is to 

iy 1 

 



   exclude cases from the crosstabulations that do not have complete data for 

each of the variables that are controlled for. Obviously, as more variables 

are controlled for, the number of cells in the crosstabulations increases and 

the number of cases with complete data on these variables decreases. 

Similarly, waltiple vegrassion models with TRIANGLE, DRESIST and EXECUT as 

independent variables cannot properly utilize the 194 cases in which the 

unknowns occur since the correct calculation of the regression coefficients 

require the correct assignment of these unknown values. Again, the usual and 

statistically accepted practice, as is also the case for crosstabulation 

analysis, is to exclude cases from the regression analysis in which one or 

more unknowns is present in the set of tpYebendent variables. In order to 

generate any regressions at all, Professor Baldus recoded all the unknown 

variable values uniformly to O. 

d. Examples of Regression Where The Coefficient of the 
  

Race of the Victim Variable Is Not Significant At .05 
  

As affiant testified at the evidentiary hearing in MeCleskey v. Zant, in 
  

August 1983, even if all of this recoded data is accepted at face value, the 

statistical significance of the race of victim recode variable (WHVICRC) that 

is observed in the regressions presented by Professor Halong could be 

completely eliminated if additional aggravating and mitigating effects 

(interaction variables) had been controlled for. As noted earlier, the number 

of possible interaction variables is very large. Affiant has run regression 

models that control for several of these interaction variables-in addition to 

those variables that were defined by Professor Baldus. These experiments have 

-16- 

  

wn A + 3. ah 5 5 TS pa Smeg roe +



   
{ 
| 
| 
| 
| 

  

yielded hundreds of different regressions, both unweighted and weighted, in 

which the coefficient of the race of the victim (WHVICRC) and the coefficient 

of the race of the defendant (BLACKD) are not significant at the .05 level of 

: ted . : 2 
significance. Furthermore, many of these regressions have higher R values 

than those testified to by Professor Baldus in his analysis. As examples, 

Table 7 reports the coefficients and significance levels for three unweighted 

regression models for the indicated dependent variable. The list of variables 

for each regression is recorded in Appendix 1 of this affidavit. 

RACE OF VICTIM COEFFICIENT 

TABLE 7 

RACE OF DEFENDANT 

  

  

  

  

DEPENDENT V1TH STATISTICAL 1.EVEL COEFFICIENT WITH LEVEL UNADJUST! 
VARIABLE OF SIGNIFICANCE OF SIGNIFICANCE R-SQUARE 

Death sentence 02 «01 «65 
given murder (.43) (.68) 
indictment. 

(DPMURIDT) 

Penalty trial of «07 .00 «63 
murder conviction { .23) (.94) 
(PSEEKALL) 

Judge or jury «00 -.01 «58 
imposes death {..99) {.9]1) 
given penalty 
trial (DEATHSNT) 

  

wY7< 

 



   
These regressions, whose set of independent variables are listed in Appendix 

are presented as examples of regressions where both the race of victim 

(WHVICRC) and race of defendant (BLACKD) coefficients are not significant, and 

are not displayed as a model and are not submitted as being representative of 

the Georgia Charging and Sentencing System. 

Lrorh 4 tat; 
gOSEPH IL. KATZ, Ph.DC/   

Sworn to and subscribed 

before me this / day 

EN 

Of J ned ini is XOB4 

el 7 din 0 
Notary Public, 

Hotary Pubiie, Georgia, State at Large 
Hy Cormmission Expires Feh 12, 1985 

y 3 EG 

  

  

18 

 



  

APPENDIX 1 

  

  

This Appendix lists the independent variables that were used in the 
regressions whose results are tabulated in Table 7 of this ®€fidavit. 

  

Dependent Variable = DPMURIDT 

Independent Variables = WHVICRC BLACKD ARMROB KIDNAP DEFLED VWITNESS VDEFOLD 
NONPROPC DPLEAS EXECUT DDULL DLOWIQ MUTILATE NUDE LDFB2 LDFB4 LDFB10 MAJAGFCX 
LDFB7EXP LDFBSUM JEALOUS DEFSUR NOVIOLCR LDFB7F STRANGER DMIDCLAS DPOOR 
VHISTAT SCIEVID DCONFESS INCMDRPT CPSTATEM DLEADER RECCRIM DRECPRIS SLODIE 
NOKILL AVENGE INSMOT RACEMOT VDEFENLS BDGAG BEAT DEFESC MENTORT PREMEDK THROA 
TWOVIC LDFB8 TRIANGLE DEFINTOX DRGHIS RAPE VDEFNSLS VFAMPRES DSELFDEF DCOERCE] 
VPCARBR SMUNDRLG DEATHELG DTHINK FELMUR*DRUGDIS DRUGDIS*PROVPASS RAGE*DEFSUR 
COPERP*SMUNDRLG FELMUR*PROVPASS ARMROB*VICCLOSE RAPE*MUTILATE ARMROB*VWITNESS 
FELMUR*VWITNESS FELMUR*EXECUT FELMUR*UNNECERY TORTURE*PERVER KIDNAP*EXECUT 
ARMROB*RAPE ARMROB*KIDNAP NUDE*MUTILATE NUDE*VICPLEAD EXECUT*VICPLEAD 
FELMUR*VICPLEAD FELMUR*MITMOTVE FELMUR*EMOTION FELMUR*NOKILL 

  Dependent Variable = PSEEKALL 

Independent Variables = WHVICRC BLACKD ARMROB FELMUR KIDNAP DEFLED VWITNESS 
NOVPROV VDEFOLD NONPROPC VSEXUP CONCELBD DPLEAS DRESIST EXECUT DDULL DLOWIQ 
MUTILATE NOCLOTH NUDE PLANCOF UNNECERY VICPLEAD LDFBl1 LDFB2 LDFB4 LDFB10 
MAJAGFCX MINAGFCX LDFB7EXP LDFBSUM MITMOTVE RAGE JEALOUS REVENGE BLVICMOD 
DISFIGHT EMOTION MADLOVER PROVPASS DEFSUR COPERP DEFFEAR SMPROVOK VBADREP 
NOVIOLCR VICDRUG MITCIRX LDFB7F VINJURD STRANGER DMIDCLAS DPOOR VHISTAT 
SCIEVID DCONFESS TWOWITD INCMDRPT CPSTATEM DLEADER RECCRIM DRECPRIS GUN 
DEFWAIT SLODIE DKILLER NOKILL DSHOOT5 VASSAULD VINJDEAR MULHDSHT VIOLENCE FEL 

2VMD SHOOTOUT CLEARID MURPRIOR VBED CPSHOOTS5 DNOINT PHYILL MITCIR POISON 
DEFSURLT AVENGE INSMOT RACEMOT VDEFENLS VDEFENS ADDCRIME BDGAG BEAT DEFESC 
HARMOTH MENTORT NOREMORE NOVICMIT PERVER PREMEDK THROAT TWOVIC LDFB7B LDFRBS8 
HATE DRUGDIS SPOUSESK TRIANGLE VICVERB AIDVICT DEFINTOX DEFREMOR DRGHIS 
MENTILL BDBLOOD VACCUSED VICARMED LDFB7E RAPE RESBKIN VDEFNSLS VFAMPRES 
VSHOMON VICDRUNK STRANGLE DCOERCED DEFHURT VWEAK VPCARBR NOSPAGCR ACCIDENT 
SMUNDRLG DEATHELG DTHINK FELMUR*DRUGDIS DRESIST*DRUGDIS ARMROB*VICCLOSE 
RAPE*MUTILATE ARMROB*VWITNESS KIDNAP*VWITNESS FELMUR*VWITNESS FELMUR*EXECUT 
FELMUR*UNNECERY NUDE*PERVER FELMUR*DPLEAS TORTURE*PERVER KIDNAP*EXECUT 
ARMROB*RAPE ARMROB*KIDNAP ARMROB*RAPE*KIDNAP EXECUT*UNNECERY NUDE*MUTILATE 
NUDE*VICPLEAD EXECUT*VICPLEAD FELMUR*VICPLEAD FELMUR*MITMOTVE FELMUR*EMOTION 
FELMUR*NOKILL FELMUR*PROVPASS PROVPASS*DRUGDIS BLVICMOD*DEFFEAR 
DEFFEAR*DEFINTOX RAGE*DEFREMOR RAGE*DEFSUR JEALOUS*PROVPASS DRUGDIS*NOSPAGCR 
BLVICMOD*NOSPAGCR SMPROVOK*NOSPAGCR DEFFEAR*DRUGDIS BDBLOOD*DRUGDIS 
SMPROVOK*DRUGDIS PROVPASS*VICVERB RAGE*DRUGDIS RAGE*DEFINTOX JEALOUS*DISFIGHT 
BLVICMOD*SMPROVOK BLVICMOD*BDBLOOD EMOTION*DEFSUR NOSPAGCR*RAGE 
NOSPAGCR*DISFIGHT COPERP*SMUNDRLG FELMUR*NOVPROV . 

  Dependent Variable = DEATHSNT 

Independent Variables = WHVICRC BLACKD MAJAGFCX MINAGFCX MITMOTVE DMIDCLAS 
DPOOR DCONFESS INCMDRPT RECCRIM DEFWAIT VINJDEAR AIDVICT DRGHIS 

  

-] Ou