Correspondence - General Vol. 2 of 6 (Redacted)
Correspondence
March 31, 1983 - December 13, 1983
96 pages
Cite this item
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Case Files, McCleskey Correspondence. Correspondence - General Vol. 2 of 6 (Redacted), 1983. 27fb8077-06ca-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/31631874-c786-4067-b4e2-7dcfdc56f4c2/correspondence-general-vol-2-of-6-redacted. Accessed April 06, 2025.
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JOHN R. MYER ) E 1515 HEALEY BUILDING
+ 57 FORSYTH ST., N. W.
ROBERT H. STROUP : ATLANTA, GEORGIA 30303
GARY FLACK
404/522-1934
ATTORNEYS AT LAW
December 13, 1983
Jack:
I propose filing this the afternoon of 12/14, after
some additional corrections that I see are necessary.
Unless I hear from you before 3 PM on 12/14, I will
understand that this is all right for filing as is.
If you wish to make corrections, or tell me to hold
off until you have an opportunity to make changes,
let me hear from you before 3.
TReobt—
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION FILE
vs. NO. C81-2434A
WALTER ZANT, Warden
Georgia Diaanostic and
Classification Center,
Respondent.
H
K
X
X
X
X
X
X
X
X
N
X
PETITIONER'S PROPOSED FINDINGS OF FACT WITH RESPECT
TO EVIDENCE THAT DEATH PENALTY IN GEORGIA
IS IMPOSED IN RACIALLY DISCRIMINATORY MANNER
Comes now the petitioner, WARREN MCCLESKEY, through his
undersigned counsel, and files the following proposed findings of
fact with respect to his claims that the death penalty in Georgia
1s imposed in a racially discriminatory manner. These proposed
findings of fact are submitted to assist the Court, in light of
the recently-available transcript. Findings, including record
cites, for petitioner's other claims, are found within the text
of the briefs previously submitted.
I. The Two Studies Conducted By Professors Baldus,
Woodworth and Pulaski
1. A number of studies of death sentencing rates, including
death sentencing rates in Georgia, had been conducted prior to
those conducted by Dr. Baldus. (Tr. 134-144).
2. Baldus relied upon these earlier studies to refine his
work, and to improve upon methodological problems innareht in the
earlier studies. (Tr. 145-46, 147-48).
3. Prior to the start of his own studies, Dr. Baldus
engaged in an extensive review of the legal an social science
literature regarding the criminal justice system, and particular-
ly, the sentencing process. (Tr. 130).
4. Beginning in 1978 Dr. Baldus conducted two different
studies related to the death penalty in Goorais. {Tr.. 321-22,
127).
A. The Procedural Reform Study, Generally.
5. The first study, .called the Procedural Reform Study,
looked at offenders who had been convicted of murder at a guilt
trial, (Tr. 122).
6. Baldus's Procedural Reform Study considered the dispari-
ties in the rates at which prosecutors advanced murder cases to
penalty trial so that a Savy was given a choice as to whether or
not the death penalty would be imposed. (Tr. 122). The
Procedural Reform Study also considered the disparities in the
rates at which juries imposed death sentences in those cases
which were advanced to jury trials. (Tr. 122-23, 166, 167).
7. The disparities considered in both studies were dispari-
ties based upon race of defendant and race of victim. (Tr. 123).
8. The Procedural Reform Study focused upon the prosecu-
torial decision to advance (or not to advance) a case to a
penalty trial, and the jury decision to recommend a life sentence
or to recommend death in those cases where the protacitor has
elected to seek the death penalty. (Tr. 122-23, 166-67).
9. The Procedural Reform Study considered a universe of 594
murder cases. (Tr. 169).
10. The time period covered by the Procedural Reform Study
was the effective date of the current Georgia Death Penalty
statute, March 28, 1973 through June 30, 1978. (Tr. 170). Any
persons arrested prior to June 30, 1978 were included within the
study. (Tr. 170).
11. The Procedural Reform Study relief, as principal
sources of information upon the crime and the defendant, the
records of the Georgia Supreme Court, including briefs of the
Attorney General and briefs of the defense counsel, transcripts
of the trial, when available, and background information
contained in the files of the Georgia Department of Offender
Rehabilitation. (Tr. 175).
12, Included in the records of the Department of Offender
Rehabilitation was information on the age and race of the
offender, and information on the prior record of the accused.
{Py. 116).
13. Also available to Dr. Baldus for both studies were
records of the Bureau of Vital Statistics, which contained
information reaarding homicide victims, including their race,
age, and occupation. (Tr. 1276, 591).
14. Included in the information gathered for the first
study was information regarding the defendant, the victim, and
circumstances surrounding the crime, such as contemporaneous
offenses, method of killing, number of victims killed, role of
co-perpetrators, and procedural history of the case. (Tr. 196-
200, DB-27, DB-35).
15. Included among the sources of information consulted by
Dr. Raldus were summaries of life sentence cases prepared by the
Georgia Supreme Court and used in its proportionality reviews.
{Tr. 203). 2
16. The Georgia Board of Pardons & Paroles maintains
records which give detailed information on the characteristic of
the offender, characteristics of the crime, and offender's prior
record. {Tr. 1717).
17. This information from the Board of Pardons and Parole
files were available for a portion of Baldus's first study, and
for his entire second study. (Tr. 176, 293).
18. In collecting the date for both of his studies, Dr.
Baldus sought to create a data set that would allow him to
control for legitimate characteristics of each case that one
could reasonably expect to affect decision-making regarding
imposition of the death sentence. (Tr. 195).
19. Prior to development of the questionnaires used for
gathering the date, extensive research was conducted in the
criminal justice area in an effort to uncover all possible
variables or case characteristics that might reasonably affect
the decision making process. (Tr. 195).
20. Dr. Baldus, along with his co-researchers, sought the
advise of a number of faculty members who were involved in the
criminal justice area. (Tr. 195).
21. For both studies to obtain information regarding the
status of defense counsel, and to otherwise gather missing
information Baldus corresponded directly with the prosecution and
defense counsel. (Tr. 206, 587-88).
22. Efforts were also made to include as much information
as possible regarding the circumstances of the crime, aggravating
and mitigating circumstances, through the use of the question-
naires developed for the two studies, and the use of a case
narrative which would describe the major features of the case and
any factors of importance noted in the records and not otherwise
reflected in the questionnaires. (Tr. 238-39).
23. Dr. Baldus made extensive efforts to assure uniformity
in entry on the questionnaires for both studies. (Tr. 221-301;
DB-34, 240-41).
24. After the information for the 594 cases in the
Procedural Reform Study as gathered, a single file with all of
the cases was created and used for Dr. Baldus's analysis. (Tr.
245-47). |
B. Charging Sentencing Study.
25. Planning for the second study, the Charging and
Sentencing Study, was begun in late 1980. (Tr. 258-261).
26. The Charging and Sentencing Study (hereinafter, C&S
Study) differed from the Procedural Reform Study in that it
considered people who were convicted of murder or voluntary
manslaughter, sentenced to state prison. (Tr. 123).
27. Secondly, the C&S Study looked at additional points in
the decision making process leading up to imposition or non-
imposition of the death penalty, considering any differentials
that appeared along racial lines in (i) the indictment decision,
(11) the decision to permit defendant to plead out to a lesser
included offense, that is voluntary manslaughter, or to plead to
murder in exchange for a walver or a death penalty trial, and
(iii) the jury's decision to convict of murder or to a lesser
offense, as well as the decision point covered by the Procedural
Reform Study.
28. The second study also differed from the first in that
Baldus developed measures of the strength of the evidence. (Tr.
126).
29. One of the primary goals of the Charging and Sentencing
Study was to focus on each individual step in the criminal
justice decision making process and be able to estimate racial
effects at each stage of the process, as well as overall. (Tr.
261-62).
30. The universe of cases studies for the Charging and
Sentencing study was a sample of offenders convicted of murder or
voluntary manslaughter whose crime occurred after March 28, 1973,
and who were arrested prior to December 31, 1978. (Tr. 263-65).
31. To assure a representative sample, a sampling plan was
developed which stratified the cases, to assure representative-
ness in terms of outcome (i.e., whether murder-death; murder-life
or manslaughter), and by judicial circuit within the State of
Georgia. (Tr. 267-69).
32. The sampling plan used were consistent with generally
accepted procedures for survey samples. (Tr. 269).
33. The questionnaire developed for the second study
included additional information over and above that gathered in
the first. Including in the expanded information was additional
material on aggravating and mitigating circumstances (Tr. 274),
expanded information regarding prior criminal record, (Tr. 274),
and additional information regarding the strength of the
evidence. (Tr.:275). |
34. Extensive efforts were made to gather all relevant
information related to the death worthiness of the particular
case in the Charging and Sentencing Study, drawing upon the
experience gained in the prior Procedural Reform Study. (Tr.
274-77).
35. Date gathering for the second study began in May 1981
{Tr. 308).
36. Included in the information gathered for the Charging
and Sentencing study was such matters as the procedural history
of the case, the charges brought against the defendant and their
disposition, characteristics of the defendant, prior record of
the defendant, contemporaneous offenses, characteristics regard-
ing the victim(s), special aggravating and mitigating circum-
stances of the crime, information on CO-perpetiators, nunber of
victims, and strength of the evidence. (Tr. 380-85, DB-38).
37. A narrative summary of the highlights of each case were
summarized in the Charging and Sentencing Study, as was done in
the Professional Reference Study. (Tr. 290-91).
38. For the Charging and Sentencing Study, the principal
source of information concerning the offender, the offense and
the victim was the files of the Georgia Department of Pardons and
Paroles. (Tr. 293).
pt
39. Extensive efforts were made with the Charging and
Sentencing Study to assure uniformity in the information gather-
ing process. (Tr. 308-313).
40. Defense counsel and prosecutors were contacted after
the close of the data-gathering which occurred in Georgia in the
summer in 1981, for purpose of providing information not avail-
able in the Board of Pardons and Paroles files, (Tr. 587-88): and
race of victim information was obtained from the Bureau of Vital
Statistics. (Tr. 591).
41. Once the data was gathered in Georgia for the Charging
and Sentencing Study, it was entered onto a computer tape by
personnel with the Political Science Laboratory of the University
of Iowa. Substantial precautions were taken to assure the
accuracy of the entry process. (Tr. 595-609).
42. Extensive efforts were made to check the accuracy of
the data relied upon by cross checking information which was
available for cases which appeared in both studies, as well as
measuring for internal inconsistencies through frequency distri-
bution analyses. (Tr. 615-16).
C. Data Gathering - Pardons and Parole Reports.
43. The Board of Pardons and Paroles reports, which were
relied upon by Dr. Baldus for development of factual information
regarding the nature of the crime in his second study, including
evidence of aggravating and mitigating circumstances, are
developed for use by the Board of Pardons and paroles in making
decisions regarding parole, and the purpose of the reports is to
provide as much relevant information as possible regarding the
circumstances of the crime. (Tr. 1330 LW-1).
44. Guidelines in effect call for investigating officers to
"extract the exact circumstances surrounding the offense. Any
aggravating or mitigating circumstances must be included in the
report." (1¥W-}, at 93.02).
45, Among the public records routinely consulted by Pardons
and Parole personnel in developing the reports are criminal
records, clerk of court records, and police reports. (Tr. 1330-
31).
46. The investigations by the Board of Pardons and Parole
are routinely conducted shortly after a conviction. (Tr. 1331).
47. In homicide cases, police officers who handled the
case, as well as the district attorney, would routinely be
consulted by Pardons and Parole investigators prior to writing
thelr report. (Tr. 1332).
48. As to circumstances of the offense, Pardons and Parole
guidelines call for the information to be obtained from the
indictment, the District Attorney's office, the arresting
officers, witnesses, and victim. A word picture, telling what
happened, when, where, why, how and to whom, should be prepared.
(Tr. 1326, 1w-1, 43.02, $9).
- ead
49. The Pardons and Parole guidelines also require that
investigating officers be as thorough as possible with persons
convicted of more serious crimes, including the categories of
convictions which were the subject of Dr. Baldus's study. (Tr.
1337).
D. General Terms - Multivariate Study.
50. The type of study used by Dr. Baldus and Dr. Woodworth
in their studies, a retrospective examination of results, is a
research design regularly used in scientific studies. (Tr.
153-54.)
51. The principal methods used by Drs. Baldus and Woodworth
to control for background factors were cross-tabulation methods
and regression methods. (Tr. 671).
52. A background factor, as used in Dr. Baldus's analysis,
is a factor that influences the outcome of interest. {152).
-3 0)
53. When one controls a background factor in multivariate
analysis, one adopts a procedure which allows those factors to be
held constant with respect to the factor whose impact is being
assessed, (152).
54. A multivariete procedure such as those used by Dr.
Baldus and Dr. Woodworth in their studies is one that will hold
constant background factors and produce a situation where one can
view all of the people considered in the analysis as being
comparable in terms of specific factors having an obvious effect
on the death sentencing results. (Tr. 143).
=
55. A cross tabulation method takes all the cases, and
looks at two specific variables. The universe of cases is broken
into four subgroups =-- those being cases where both variables are
present, cases where neither variable is present, and two other
subgroups, each with one variable present and the other variable
absent. (Tr. 683-DB-64).
56. Dr. Baldus and Dr. Woodworth used the last squares
regression analysis and the logistic regression analysis through-
out the Charging and Sentencing Study. (Tr. 671).
57. The least squares regression analysis used by Dr.
Baldus and Dr. Woodworth results in a regression co-efficient
which is analogous to the arithmetic difference in death sentenc-
ing rates for cases with and without the particular variable(s)
being considered. (Tr. 670).
-11-=
58. In contrast, the logistic regression procedure used by
Drs. Baldus and Woodworth produces a regression coefficient
which, upon final analysis, represents a measure of the number of
times one's chances of receiving a death sentence are increased
by the particular variable being considered. (Tr. 670).
59. The value in a regression method is that it produces a
single number which reflects the impact of the presence or
absence of a variable in cases, while holding constant other
background factors that need to be controlled for. (Tr. 692).
60. The least squares regression coefficient represents a
measure of the average increasing death sentencing pats across
the cases with a variable present when compared with all cases
lacking the particular variable. (Tr. 693-94).
61. In the kind of least squares regression used by Baldus
and Woodworth, an increase in the regression coefficient repre-
sents a percentage {norease in the probability that the death
penalty will be imposed. (Tr. 765).
62. A multiple regression analysis, through a method of
algebraic adjustment, identifies groups of cases which are
similar, and within those subgroups of cases, the racial effects
are calculated. Conceptually, it is a process similar to trying
to replicate, retrospectively, what would be done in a controlled
experiment, so as to get cases where everyone is the same with
respect to all factors, except the factor whose impact is being
estimated. {Tr. 792-94),
-12-
63. One of the purposes of iwultivariate analysis is to pull
apart the casual effect of variables when they are correlated.
(Tr. 1730).
E. General Statistics Regarding Homicides in Georgia.
64. Petitioner's Exhibit DB-21 correctly traces the steps
in the decision-making process with respect to processing of
criminal charges arising out of homicides in the State of
Georgia. (DB=-21; Tr. 165-66).
65. Petitioner's Exhibit DB-57 reflects the number of
murders and non-negligent homicides in Georgia during the period
1974 through 1979, and the disposition of those cases. (Tr.
629-633, DB-57).
66. Petitioner's Exhibit DB-57 shows relative stability
over this time period with respect to the observed outcomes.
{Tr. 630-31).
67. Petitioner's Exhibit DB-58 accurately depicts at each
step of the criminal justice decision-making process the total
number of cases remaining in the system for disposition. (Tr.
634-638, DB-58).
68. The figures in DB-58 suagest that a large proportion of
the homicide cases in Georgia are disposed of at relatively early
stages in the criminal justice system, and further, the most
critical decision-making, in terms of risk of death sentence, are
the last two decision in the process--the decision of the
prosecutor to advance cases to penalty trial following a murder
conviction and the decisions by the jury at a penalty phase as to
impose the death penalty or not. (Tr. 636-637).
-13-
69. Exhibit DB-58 accurately depicts the risk of receiving
the death penalty at each of the stages of the criminal justice
decision-making process. (Tr. 655-657).
F. Race of Victim Race of Defendant Effects - Statewide.
70. The expert studies presented by petitioner showed a
pattern which ran throughout--that is the cases become more
aggravated, because of the presence of aggravating circumstances,
the death sentencing rate goes up. As the death sentencing rate
rises, so does the disparity in sentencing based upon race of the
victim. {Tr. 748),
Pt
71. The sentencing system in Georgia does not show uniform
discrimination on the bases of race of defendant or race of
victim; rather, in areas where most discretion is exercised by
decision makers, that is the cases where aggravation levels are
mid-ranae, the racial discrimination is greatest. (Tr. 841-42). -
72. Evidence of discriminatory application of the death
penalty appeared, generally, in the middle range of cases with
aggravated circumstances. In cases of very low aggravation, the
death penalty was rarely imposed. And in cases with the very
highest levels of aggravation, racial disparities in the
frequency of imposition disappeared. (Tr. 777-78).
73. Dr. Baldus's analysis shows that the race of victim is
a factor which contributes to death sentencing outcomes in
Georgia, even when the effect of the legitimate factors repre-
sented by the statutory aggravating circumstances are considered.
(Tr. 782-84, DB-78).
-14-~
74. Dr. Baldus's analysis showed that the race of victim
has more impact on the sentencing outcome observed Inthe Georgia
system than some of the statutory aggravating circumstances.
{Tr. 786-87).
75. In viewing overall death sentencing outcomes for cases
indicted for murder, Petitioner's Exhibit DB-78 reflects the
coefficients found for race of victim, race of defendant and the
nine statutory aggravating factors, along with a variable for
prior record, controlled for simultaneously. (DB-78).
76. When the nine statutorily-aggravating circumstances,
and 75 mitigating circumstances are controlled for, race of
defendant and race of victim disparities in sentencing outcomes
remained evident. In fact, race of victim and race of defendant
disparities appeared stronger than when evidence of mitigating
circumstances were not considered. (Tr. 797-99, DB-79).
77. Petitioner's Exhibit DB-79 accurately sets forth the
race of victim and race of defendant disparities, while control-
ling for the 10 statutory aggravating factors and 75 mitigating
circumstances. (DB-79).
78. When sentencing outcomes across the universe are
considered while controlling for nine important background
factors, race of victim remains a strong influence on the system.
The average likelihood that death would be imposed increased 7%
with white victim cases when those nine background factors were
held constant. The nine background factors considered in this
phase of Dr. Baldus's study were (1) felony circumstances; (2)
serious prior record; (3) presence of a family-lover-liquor-bar
Lr
room quarrel; (4) multiple victims; (5) whether the victim was a
stranger; (6) whether the defendant was the triggerman; (7)
whether there was physical torture; (8) whether there was mental
torture, and (9) whether there was a serious aggravating circum-
stance accompanying a contemporaneous offense. Those observed
numbers were also statistically significant. (Tr. 801-802, DB-
80).
79. Similarly, when sentencing outcomes across the universe
are considered while controlling for more than 230 non-racial
background factors, race of victims remains a strong influence on
the system. The average likelihood that death would be imposed
increased 6% with white victim cases when those nine background
factors were held constant. That observed outcome was statistic-
ally significant. (Tr. 802-804, DB-80).
80. The actual race of a victim effects in the cases in the
middle-range of aggravation (where the racial effect manifests
itself) is substantially higher than the average 6-7% observed
cases suppress the average, as no racial effect is shown in those
cases. (Tr. 803).
81. Dr. Baldus ran a number of alternative studies of the
data, using a number of different background variables which he
believed, given his understanding of the criminal justice system,
might offer an alternative explanation for sentencing outcomes,
without race of victim continuing as an operative force in the
system, In each of the alternative studies by Dr. Baldus, race
of victim remained a strong influence on the sentencing outcome.
{Tr. 808-802, 320-3), DB-80, DB-83.)
thw
82. During the courses of the trial, the District Court
itself developed a "Lawyer's Model" of variables which, in the
Court's view might explain in legitimate, non-discriminatory
terms the functioning of the sentencing system. (Tr. 1475-76).
However, when that model was used, race of victim and race of
defendant were strong influences on sentencing outcome. (Baldus
affidavit, filed 9/16/83.)
83. When Dr. Baldus selected 39 background factors which
other studies suggested were the most plausible non-racial
explanations for death sentencing results, and held those factors
constant, race of victims eFroct remained strong and statistic-
ally significant. (Tr. 815-819, DB-81, DB-82).
84. Dr. Baldus found that the statutory aggravating
circumstances contributing the largest number of death sentencing
in Georgia were the B-2 and B-7 factors. When those cases were
analyzed separately, strong race of victim effects appeared in
statistically significant numbers (increasing the probabilities,
across the universe, 6%-10% if race of victim was white).
Significantly, in Be? cases, where decision-maker discretion was
relatively high, given the subjective nature of the B-7 circum-
stance, race of defendant effects appeared high and in statistic-
ally significant numbers. In B-7 cases, race of defendant
discrimination increased the probabilities of the death sentence,
across the universe of B-7 cases, 13%. (DPB-85; Tr. 839-42, 855).
85. When B-2 cases were categorized into different groups,
based level of aggravation, the greatest race of victim effect
exist with black defendants. In those situations, the likelihood
-i7=
of death being imposed increases 24 to 36 percentage points, when
a black defendant is charged with killing a white, as opposed to
black victim.
86. Similarly, when B-2 cases were categorized by level of
aggravation, race of defendant disparities exist generally in
white victim cases, with black defendants receiving the death
sentences at a rate generally ranging from 5 to 32 percentage
points greater than Ales defendants. {HhB-87, Tr. B72«75).
87. A study of cases at the highest levels of aggravation,
controlling for relevant background factors, showed statistically
significant race of victim disparities. (DB-89, Tr. 876-80).
88. When the 472 most aggravated cases were themselves
grouped according the likelihood of receiving the death penalty,
given the background factors present, race of victim disparities
in the range of 16% to 33% existed. It is in this category of
cases that the evidence showed decision-maker discretion was
being exercised, and being in a racially discriminatory manner.
(Tr. 881-884, DB-90).
89. Similarly, when the 472 most aggravated cases were
considered, race of defendant disparities existed in statistic-
ally significant numbers, enhancing the probability the death
sentence would be imposed in white victim cases 15% to 27%.
(DB-91, Tr. 885-86).
90. Although white victim cases are themselves generally
more aggravated, that does not explain the racial effects shown
in the system. When black and white victim cases with similar
legitimate aggravating circumstances are considered, the results
-18-
show that the system responds more severely to white victim cases
then to comparable black victim cases with the same Teqitinsts
aggravating circumstances. (DB-92, Tr. 887-893).
91. The evidence shows that substantial race of victim
effects are caused by the prosecutor's decision whether or not to
seek a death penalty after a quilt verdict is returned on a
murder indictment. Race of defendant disparities also exist at
that decision-making point in the process. (DB-95, Tr. 906-14).
92. Some evidence exists that race of victim discrimination
is contributed by the jury decision on whether to impose the
death penalty or not. {DB-95, Tr. 906-14, DB~-97, Tr. 934).
93. Dr. Baldus's analysis showed that the race of victim
and race of defendant effects remained even after the appellate
function of the Georgia Supreme Court was considered. (Tr. 953-
06)
94. The evidence showed that the pattern of race of victim
and race of defendant discrimination was not isolated to any
particular time period within the 1973-79 period studies, but
rather, remained present throughout that period. (DBR-103, Tr.
961-64).
95. The evidence showed that black and white victim cases
at the same level of aggravation show different death sentencing
rates. {Tr. 1297, Gu-5),
1D
96. The "midrange" model, in which petitioner's experts had
the greatest confidence, showed that, on average, the white
victim-black victim case is exposed to an additional 7 to 15%
higher death sentencing rate than if the victim were black. (Tr.
1294, 1300-1302, GW-5).
97. Existing technical literature in the area of criminal
sentencing suggests that the retrospective study conducted by
Baldus would likely understate racial effects. (Tr. 1768).
G. Race of Victim/Race of Defendant Effect in Fulton
County.
98. As for Fulton County, the jurisdiction is which the
petitioner was sentenced, the evidence shows that the likelihood
of a death sentence is higher in white victim cases than in black
victim cases. (Tr. 978-993, DB-106, DB-109).
99. When thirty-two of the most aggravated Fulton County
cases were studied, the evidence showed disparities based upon
race of the victim within groups of cases with similar levels of
aggravation. (DB-109, Tr. 992-914)
100. The Fulton County disparities reflected patterns
similar to that found statewide, including evidence that dispari-
ties were, in part, the result of prosecutorial discretion to
advance the case to a penalty trial after the return of a guilty
verdict at a murder trial. {rr. 1002-1005, DB-~111)}.
Gs
101. The evidence showing racial effect in Fulton County
sentencing was supported by a regression analysis taking into
account the non-racial factors with a statistically significant
relationship to outcome at each particular state in the process.
(DB-114, Tr. 1037-43).
102. In Fulton County since 1973, there have been 10 police
homicides, with charges in those homicides brought against 17
defendants. Only one person, the petitioner, has been sentenced
to death. (Tr. 1051-1052, DB~115).
103. Of seven persons, including petitioners, who were
accused of being involved in a serious contemporaneous offense,
as well as being the triggerman resulting in the homicide of a
police officer, three of those charged pled guilty to murder, and
no penalty trial followed the quilty plea; two went to trial on
murder charges and were convicted, but no penalty trial was held
thereafter, and two were convicted and had a penalty trial. The
one case which went to a penalty trial and life sentence was
imposed involved a black victim; the one case which went to a
penalty trial and a death sentence was [petitioner's] involved a
white victim. ATr. 1050-57: DB~115).
104. No written guidelines exist which set forth standards
for decision-making within the Fulton County District Attorney's
office regarding the disposition of death-eligible cases from
indictment through the decision to seek a death penalty after a
jury returns a verdict of guilty in a murder trial. (Lewis
Slaton Deposition, 10-12, 26, 31, 41, 58-59),
“l-
105. Murder cases in the Fulton County District Attorney's
office are assigned at different stages to one of a Aoton or more
assistant district attorneys, and there is no one person who
invariably reviews all decision on homicide disposition. (Slaton
Deposition, 15, 45-48, 12-14, 20-22, 28, 34-38).
106. The decision-making process in the Fulton County
District Attorney's office, with respect to seeking a death
penalty, has changed little or none from the pre-Furman time
period. (Slaton Deposition, 59-61).
107. The District Attorney who prosecuted Warren
McCleskey's case was white (Deposition 43, Exhibit pei}, and
generally, all but one or two of the trial district attorneys
responsible for handling death cases in Fulton County since 1973
have been white. (Tr. 43-50).
108. All but three of the judges in Fulton Superior Court
since 1973 have been black, and during the 1973-79 time period,
not more than one of the eleven judges on the Fulton Superior
Court bench at one time was black (Slaton Deposition, 52-58,
Exhibit P-1). The judge who presided at Warren McCleskey's trial
was white. (Deposition Tr. 52-58, Exhibit P-1).
H. Warren McCleskey's Case And Racial Effects Observed In
Defendant's Cases Of Comparable Aggravation.
109. Petitioner Warren McCleskey, who is black, was tried
by a jury consisting of eleven whites and one black. (Tr. 1316).
The person seated to hear petitioner's case, (including one white
juror who was excused) were eleven whites and one black. { Tr.
136).
le a
110. The evidence showed that at the time of Warren
McCleskey's trial, the population of Fulton County was 47-50%
black (Tr. 1776-78). The probability that a panel of jurors
which was eleven white and one black would be drawn from such a
population, by chance, is approximately .005. The probability
that a panel of jurors which was twelve white and one black would
be drawn from such a population, by chance, is approximately
«003, (Tr. 1777).
111. Petitioner Warren McCleskey's ca%a fell within a class
of cases where there is roughly a twenty percentage point
disparity between black victim dates and white victim cases in
sentencing outcomes. (Tr. 1735, GW-8).
1. Confidence In The Observed Results.
112. Drs. .Baldus and Woodworth used an approach to their
data termed "triangulation." That approach suggests that if a
researcher employs a variety of different methods to analyze the
same question, and each of the different methods come up with a
similar conclusion, one has greater confidence in the conclusion
reached. In this case, two different date sets were used, though
similar results were generally obtained. Further, different
regression analyses were used, focusing upon varying subsets of
cases at varying stages in the decision-making process, with
generally a similar conclusion reached, which is, that in the
mid-range of the highly-aggravated cases, where the greatest
amount of discretion is being exercised, racial effects are
evident. (Tr. 1081-1083, 1736-40).
J. Diagnostic Tests.
-23~
113. Appropriate statistical tests were conducted upon
regression coefficients found in Dr. Baldus's and Pe. Woolworths
study to assure that the observed disparities did not occur by
chance. These statistical tests were a method of testing the
rival hypothesis that the observed results occurred by chance.
(Tr. 1244-46). |
114, Statistical tests, or diagnostic measures, were also
run to assure that the observed results were not due to errors in
statistical technique or to bias built in to the regression
analyses used. (GW-40, Tr. 1248-52, 1265, 1300).
115. Diagnostic tests run assured that the results obtained
showing race of victim discrimination were not a result of the
weighting system used in the analysis. (Tr. 1253-54, 1711-1715,
1727).
116. A number of different analyses were conducted which
assured that unknown information did not alter the racial effects
observed. In those analyses, race of victim effects remained
strong and statistically significant. (GW-4, Tr. 1255-1256, DB-
120-124, Tr. 1694-1708).
117. Diagnostic tests also showed that the race of victim
effects were not caused by a few anamalous cases, but rather,
were systemic. (GW-4, Tr. 1256-60).
K. State's Objections.
118. The State did not demonstrate or seek to demonstrate,
that the date on Dr. Baldus's tapes used for his analysis did not
substantially reflect reality. (Tr. 652).
-24-
119. Tests were run by petitioner's experts indicated that
the respondent's criticisms of Dr. Baldus's coding practices did
not affect the race of victim coefficients. (Tr. 1677-1678).
120. The evidence showed that, to the extent there were
errors in the data base, they were likely to have occurred on a
random basis, and therefore, could not have created the race of
victim or race of defendant effects observed. (Tr. 1727-28).
121. Dr. Richard Berk, one of petitioner's expert called in
rebuttal, indicated that, in his experience, if missing data were
a problem, two things would have happened that were not observed
in Baldus's and Woodworth's work: (1) the aggravating and
mitigating circumstances wouldn't have shown effects on outcome;
and (2) very minor changes in which variables were included would
have resulted in flipping the important effects from positive to
negative and positive back again. (Tr. 1764-65).
122. Dr. Rerk further testified that in other research
studies he has observed in the criminal justice area, missing
data of the magnitude of 10 to 15 percent almost never makes a
difference in the analysis. (Tr. 1766). The missing date in
Baldus's study were well below this ranqe. (Tr. 1766).
123.2 In comparison to the hundreds of studies on sentencing
reviewed by Dr. Berk, he was of the opinion that Dr. Baldus's
study was far and away the most complete and thorough. (Tr.
1766).
Lie Multicolinearity.
-25
124. To the extent that race of victim and level of
aggravation are related to each other (i.e., colinear), the
effect of such on the coefficients would be to produce a lower,
rather than higher, race of victim effect. The existence of a
statistically significant race of victim coefficient, even though
there is some relationship between race of victim and level of
aggravation, indicates that the race of victim effect cannot be
explained by the fact that white victim cases tend to be more
aggravated. (Tr. 1281-1283, 1659).
125. The major risk in a study with many variables which
are correlated with each other (i.e., there is much "multi-
colinearity") is that is will be difficult to distinguish the
regression co-efficients from change; in other words, one loses
statistical powers. But, the regression co-efficients achieved
will be unbiased. (Tr. 1782).
M. Summary.
126. On the basis of Dr. Baldus's study of sentencing
patterns in the State of Georgia, he was of the opinion that:
(1) systematic and substantial disparities exist in the
penalties imposed upon homicide defendants in the State of
Georgia, based upon the race of the homicide victims;
(2) disparities in death sentencing rates do exist based
upon the race of the defendant, but they are not as substantial
and not as systematic as the race of victim disparities;
IG
(3) disparities in both race of victim and race of
defendant persist, even when the aggravating circumstances
defined by Georgia's capital punishment statute are taken into
account;
(4) these disparities exist even when one controls
simultaneously for statutory and non-statutory aggravating and
mitigating circumstances and measures of the strength of the
evidence;
(5) that race of victim disparities persist within the
jurisdiction of Fulton County, Georgia, wherein petitioner Warren
McCleskey was tried;
(6) that other legitimate factors not controlled for in
Dr. Baldus's analysis could not plausibly explain the persistence
of these racial ‘disparities in the State of Georgia and in Fulton
County; and
(7) that racial factors have a real effect in the capital
charging and sentencing system of the State of Georgia and in
Fulton County. (Tr. 726-728, DB=-12).
27
127. The Court finds the opinions of Dr. Baldus to be
supported by the evidence in this case.
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBURG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
TIMOTHY XX. FORD
600 Pioneer Building
Seattle’, Washington 98136
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY:
ROBERT H. STROUP
ATTORNEYS FOR PETITIONER
- flee
The Department of Lam
State of Georgia
; Atlanta
i MICHAEL J. BOWERS 302334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
| ‘November 9, 1983
is Honorable J. Owen Forrester, III
| United States District Judge
2367 United States Courthouse
Atlanta, Georgia 30303
Re: Warren McCleskey v. Walter D. Zant,
Case No. (81-2434A
Dear Judge Forrester:
As I noted in my letter dated November 4, 1983, I planned to file
my brief within one week after receipt of the brief from Mr.
Boger in the above-styled case. Although he placed our copy
in the mail on November 1, 1983, apparently due to the delay
in the mail system, I did not receive the brief until November 7,
1983. Based upon this, I plan to file my brief on Monday,
November 14, 1983. This is in compliance with my understanding
that I had one week to file my brief after receiving the
supplemental brief from Mr. Boger.
Thank you for your time and consideration in this regard.
Sincerely,
Macybech Weehnecedara
MARY BETH WESTMORELAND
Assistant Attorney General
MBW/bh
cc: Mr. John Charles Boger
16th Floor, 99 Hudson Street
New York, New York 10013
Mr. Robert H. Stroup
1515 Healey Building
Atlanta, Georgia 30303
Mr, Ben Carter, Clerk
United States District Court
Northern District of Georgia
Atlanta, Georgia 30334
: NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC
jund 10Columbus Circle, New York, N.Y. 10019 ¢ (212) 586-8397
July =19, 19383
To: Tim Ford
Dave Baldus
George Woodworth
Richard Berk
Robert Stroup
From: Sam Laufer
i AL Jack's recuest, I'm enclosing a list
of texts referred to by Dr. Katz during
the course of his deposition.
He was frequently unclear about whether
a text was used for undergraduate or
graduate studies. In those cases I have
used my own judgement. Best regards.
Sincerely,
Snitbdss
*%
Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget.
October 13, 1983
Hon. Ben H. Carter, Clerk
United States District Court
2211 U.S. Courthouse
75 Spring Street
Atlanta, Georgia 30335
Attention: Ms. Regina Martin
Re: Warren McCleskey v. Walter D. Zant
No. C81-2434A
Dear Mr. Carter:
Enclosed at the request of Ms.
Regina Martin of your office is a duplicate
copy of the corrected memorandum of law
filed by petitioner McCleskey in this
case.
Best regards.
Sincerely,
Zdnd fo
n Charles Boger
cc: Mary Beth Westmoreland, Esq.
JCB: agf
enc.
10 COLUMBUS CIRCILE 212) 586-8397 NEW YORK, N.Y. 10019
TM EMORANDUM
TO: Jack Boger & McCleskey File
FROM: Robert H. Stroup Re.
DATED: October 21, 1983
RE: Judge Forrester's Concern Regarding Multiple
Regression Analyses :
Subsequent to our conversation of yesterday, I decided
to pursue a bit of additional research with respect to Judge
Forrester's concern regarding use of Multiple Regression Analy-
ses. Picking up on his comment in the hearing on Monday to
the effect that a model shouldn't be relied upon if it didn't
reflect reality, I tracked down the Eleventh Circuit decision
he had pointed to earlier as authority. That case is Construc-
tion Aggregate Transport, Inc. v. Florida Rock Industries, Inc.,
710 F. 2d 752. That decision is not particularly on point and
should not be particularly troublesome. It is a treble damage
antitrust action. The language that Forrester has focused on
is at 789:
"At retrial, therefore, the trial court should
reconsider its decision to admit Dr. Raffa's
testimony based upon the pro forma unless CAT
sufficiently explains the apparent inconsistencies
in its pro forma and its failure to consider the
evidence of actual costs."
The Eleventh Circuit then goes further and gives a string
cite of three cases which are generally described as standing
for the position that it is incorrect to rely upon expert testi-
mony when such is not based upon correct statistics or does not
meet minimum probative value.
Construction Aggregate Transport simply involves a question
of projection of future profits in a case where the expert testi-
mony did not take into account available actual information re-
garding actual costs. All the Eleventh Circuit is saying in that
case is that the plaintiff expert's testimony which was based on
a "pro forma"" (that is, a two-page prediction of what actual
earnings were expected to be once the business got going) analysis:
rather than relying on actual costs incurred during the course
of running the business, was inappropriate.
Obviously, in this case we have shown that Baldus and
Woodworth's work is based upon evidence that comes from actual
experience. Had Baldus and Woodworth based their study not
upon actual cases but rather, I suppose, upon some textbook
description of what you would anticipate the murder cases would
look like, then Construction Aggregate would be analogous. It
is simply not analogous, however, in this situation.
On the other hand, one recent Eleventh Circuit decision
and another Fifth Circuit Unit A decision from 1981 do deal with
Multiple Regressions in an employment discrimination context and
do, I believe, provide important standards for us to look to in
putting this factual brief together.
The Eleventh Circuit decision is Eastland v. TVA, 704 F.
2d 613 (llth Cir. 1983). The Court's discussion of regression
is at 622 through 625. Most important, I think, is the dis-
cussion at 623 and 624 where the primary authority is Baldus and
Cole. It would seem to me at the very least our brief should
tell the judge how our study meets the criteria set out at those
two pages.
Although Wilkins v. University of Houston, 654 F. 24d 388
(5th Cir. , Unit A, 1981), 1s not binding authority on the Eleventh
Circuit, its discussion of Multiple Regression is important. That
discussion is centered at pp. 402-405. The Wilkins decision
notes at footnote 183, pp. 402, that ". .~.1f properly used,
Multiple Regression analysis is a relatively reliable and accurate
method of gauging classwide discrimination."
It is also of some significance that both Eastland and
Wilkins involve appellate court rejections of the particular
regression analyses used.
Returning for a moment to Eastland, I just wanted to note
in particular this quotation: "The strength of the factual founda-
tion supporting a regression model may be a factor in assessing
whether the group status coefficient indicate discrimination or the
influence of ligitimate qualifications which happen to correlate
with group status." Citing Baldus and Cole, §8.021, at 66 (1982)
Supp.). Then, at 624, fn. 16, "Baldus and Cole have recognized that
one should consider interaction variables which take account of
possible interactions between the primary qualification variables."
It would seem to me given who our expert is that it is
incumbent upon us to show the judge at least indirectly how
our models meet the requirements of Eastland. If Judge For-
rester doesn't know about Eastland by the time of his decision,
the Eleventh Circuit certainly will by the time of its decision.
(I have attached relevant portions of the three decisions).
TIMOTHY K. FORD
COUNSELLOR AT LAW
600 PIONEER BUILDING
SEATTLE, WASHINGTON 98104
206/622-5942
October 6, 1983
Jack Boger
NAACP LDF
10 Columbus Circle, Suite 2030
New York, NY 10019
Dear Jack:
Enclosed are some bills, and a recap of McClesky expenses to
date. You will notice that one bill does not relate to any
particular case or state. It is for time and expenses regarding
the statute book, and my 9/7 trip to New York (expenses only).
Thanks.
Sincerely,
TKF : mm
Encl.
TIMOTHY K. FORD
COUNSELLOR AT LAW
600 PIONEER BUILDING
SEATTLE, WASHINGTON 98104
206/622-5942
MC CLESKY v. ZANT
EXPENSES
Photocopies 321.07
Long distance phone 463.07
Postage 46.50
Airfare (Atlanta RT - Ford) 738.00
Lodging (Atlanta - Ford) 170.98
Food (Atlanta) 187.11
Park, car rental, gas & taxi (Atl.) 1002.47
Witness lodging and travel 710.46
Food (NYC) 50.00
Taxi, etc. (NYC) 46.00
Total expenses to date 3,135.66
CREDITS
9/14/84 (2000.00)
9/19/83 (Deposited to Trust Account) (2000.00)
Balance in Trust for future expenses 264.34
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
egal efense und 10 Columbus Circle, New York, N.Y. 10019 e (212) 586-8397
October 4, 1983
2 Ed Gates
Z5 _Burrouglis Street
Jamaica Plain, Mass. 02130
Dear Mr. Cates:
According to the records of:-our
Finance Department, your check in the amount
of $699.00 was mailed to you on September 21,
1983.
I hope you've received 1t by
this time and will refrain from making
any remarks about our postal service.
Sincerely,
Cues, no
Audrey G. Fleher
Secretary to John Charles Boger
Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget.
oO Cek 2% 1195
a. act |
Sony Eo Aoudnle hd Lath. cocls
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eo teumburtemnt 0 tipo. Be I
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my fliget lls pon wnt dorimandetion
oh oPpreCilake o Guch dope on Xo
i hope atl “oval Tee oRVZ
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that 7 al 74
JOHN R. MYER 1515 HEALEY BUILDING
S7 FORSYTH ST., N. W,
ROBERT H. STROUP ATLANTA, GEORGIA 30303
GARY FLACK
404/522-1934
ATTORNEYS AT LAW
September 29, 1983
John Charles Boger, Esq.
Suite 2030
10 Columbus Circle
New York, New York 10019
Re: McCleskey v. Zant
Dear Jack:
I enclose for your processing some additional charges
related to the McCleskey hearing - some long distance
calls for the months of June, July and August, a
miscellaneous charge for Xeroxing incurred during the
hearing, and Janet Caldwell's bill for typing the most
recent brief on the merits.
I appreciate your assistance with these charges.
Very truly yours,
(Zeb
Robert H. Stroup
RHS/1
Encls.
JOHN R. MYER
ROBERT H. STROUP
GARY FLACK
ATTORNEYS AT LAW
4-26-8%
1515S HEALEY BUILDING
S57 FORSYTH ST., N. W.
ATLANTA, GEORGIA 30303
404/522-1934
The University of lowa COPY
lowa City, lowa 52242
College of Law
September 15, 1983
Robert Stroup, Esq.
1515 Healey Bldg.
57 Forsyth Street
Atlanta, GA 30303
Dear Bob:
In Re: W. McClesky
Enclosed is the affidavit I promised you on the Judge's Model -- one
copy for you, and the original for the Court.
Would you please send me a copy of Salton's deposition when it is
published. I hope all is well with you.
Best regards,
David C. Baldus
DCB/mss
Enclosures
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC
10 Columbus Circle, New York, N.Y. 10019 e (212) 586-8G¢
September 12, 1983
Professor David C. Baldus
College of Law
University of Iowa
Iowa City, Iowa 52242
Dear Dave:
Enclosed are coples of the District
Court's recent Grigsby v. Mabry opinion, our
list of capital cases decided by the Supreme
Court since Furman v. Georgia, 408 U.S. 238
(1972), and my collection of early Eighth Amend-
* ment opinions from the Supreme Court.
Best regards.
4
John’ Ch rles Boger
— (Fo rer
\
Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Ad ar~ement of Colored People although it
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate boar¢ program, staff office and budget.
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
10 Columbus Circle, New York, N.Y. 10019 e (212) 586-8397
July 13, 10873
Professor Samuel R. Gross
Post Office Box 16
Glendale, Massachusetts 01229
Dear Sam:
Enclosed are copies of the materials that you
requested in order to begin thinking on McCleskey v. Zant,
and %o begin working -on-the Avery brief, to wit:
(i) the Okun and Bliss memoranda; ( wall anno Sepalelsy
: (ii) other articles on discrimination and
arbitrariness; ( will aanive sepuilth
(111) “the Kaitz deposition;
(iv) the Hovey opening and reply briefs; (lu adres
(v) the Smith opening brief and petition for
certiorari; ol
(vi) the Appelbaum affidavits;
(vii) the North Carolina pleadings and arguments
in Avery;
(viii) the Grigsby/Hulsey briefs, findings and
conclusions;
(ix) . the Hovey opinions;
(x) the Fields/Alcala brief; and
{23 ) the' Word/Sparks petition ‘to the California
Supreme. Court.
: Have fun reading. Best regards to yourself, Phoebe
and Sacha.
Sjncerely,
JCB:agf
encs. Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
- was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget.
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC
10 Columbus Circle, New York, N.Y. 10019 e (212) 586-8397
June: 28, 1983
Dietrich & Bendix
343 Riverside Mall
Suite 400
Baton Rouge, Louisiana 70801
Re: Warren Mc Cleskey v. Walter D. Zant, CA NO. C81-2434A
Attention: Charlotte Speratos
Dear Ms, Speratos:
As you requested when we arranged today for a
certified court reporter to take a deposition on July
5th at 10:00 a.m., I am enclosing the Notice of Deposition.
Please note, however, that the location at which
the deposition will be taken has been changed from the United
States District Courthouse (indicated in the Notice of Depo-
sition) to: :
Economic & Industrial Research, Inc.
Suite 400, 4664 Jamestown Avenue
Baton Rouge, Louisiana
2 Thank you very much for your assistance in this
matter,
Sincerely,
Audrey G." Fleher
Secretary to John Charles Boger
enc.
Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget.
TIMOTHY K. FORD
COUNSELLOR AT LAW
600 PIONEER BUILDING
SEATTLE, WASHINGTON 98104
206/622-5942
August 26, 1933
TO: Jack Boger
From: Tim Ford
Enclosed are (1) a copy of the transcript; (2) a copy of a letter
order from the 11th Circuit; (3) some notes I found and the papers
I had of Baldus' testimony; (4) a letter from me asking for an
advance for costs; (5) draft assignments of error and issues
presented; and (6) an envelope with your $21 bill from the Attorney
General's office and your checks.
On the last of these, I did not pay Gene Guerrera, and I don't even
remember what that was supposed to be for. Purolator picked up all
the stuff and is ground delivering it to Baldus and to you.
Presumably, they will bill the Fund. The other check, I think, was
for the xeroxing at the office next to Bob Stroud's. We never
quite got worked out what the numbers were, and I didn't get back
to them before 5:00 Thursday. By our count, we made 2437 copies.
I think they said it was 6 or 7 cents per page. If you can work
things out from there, through Stroud's office, that might be the
simplest thing.
On the apartment rental, you are supposed to be getting the $350
back in the mail. Julia, I think, has the receipt which said
everything was OK.
Stay well.
JOHN R. MYER 1S15 HEALEY BUILDING
S57 FORSYTH ST., N. W,
ROBERT H. STROUP ATLANTA, GEORGIA 30303
GARY FLACK
404/522-1934
ATTORNEYS AT LAW
August 31, 1983
John Charles Boger, Esq.
Suite 2030
10 Columbus Circle
New York, New York 10019
Re: McCleskey v. Zant
Dear Jack:
I enclose for processing a bill for out-of-pocket expenses
incurred over the past two months, primarily for McCleskey.
The copying charges do include some copying for John Smith,
though it is not possible to break down the two cases as
people were not regularly recording the amount of copying
being done. The 10,000 total is arrived at by comparing our
regular copying for a two-month period (which runs not in
excess of 5,000 copies for that time period) with the total
for the past two months, which is right at 15,000 copies.
Therefore, the 10,000 copy figure is, it seems to me, a fair-
ly accurate figure, given the massive amount of copying that
was done here. For example, there are specific entries for
August 20 and 21 for John Smith, totaling 2,833 coples for
those two days.
I would appreciate your doing what you can to expedite payment
of these amounts.
Very truly yours,
i’
Robert H. Stroup
RHS/1
Encls.
P.S. I have not included any long distance phone calls, which
will be sent along subsequently.
R.H.S.
SE ————
TACK:
3
early alle-at lous relating to. the juky——Farnol sure iT
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I understand it in other cases to. a negative conclusion.
Q
trial. Jury?
JT thine what happened ds thant the Proscouloy struck most of thon,
as Liic
2 1 Huow there was some. black people onthe panel. b) } }
Rr — C—T TT arent Na
F
i
r
e
.
rand and ipa verse Jury--I mean, I think there
something in there about the. jury.
NO.
Why was that?
Well, in the~--well, again, Fulton County: hai one
liberal Jury policies nd on that basis, 1 juct
k that there would be anything frultful or anything
be gained by that. It's been dealt wiih before as
~ Do vou recaly Lhe yYacial composition of Pelitioner's
No, . ft don't, I bolleve there were some bhlack
FY moet 11
a on
WHat
is
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asst) bey. Yogue, Lhe Jaey innmen dl Ahink are
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27
,
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=i
ECONOMETRIC RESEARCH, Inc.
1101 Fourteenth Street, N.W. @ Third Floor ® Washington D.C. 20005 e [202] 283-8600
MEMORANDLUHN
TO: David Baldus, Esq.
Syracuse University College of Law
FROM: Timothy Wyant, Senior Statistician
Econometric Research, Inc.
RE: Technical Material Relating to lcClesky
DATE: July 18, 1983
Here are some of the technical items we discussed last
week. I will send some additional material in the next two
days.
Resumes
I have enclosed current resumes for myself and Stephan
Michelson.
Presentation of IL.ogit Results
I have enclosed a copy of a report we wrote for Mateza v,
Polaroid that presents logistic regression results in a manner
more analogous to ordinary least squares results. The
appropriate formulas appear in the appendix describing logit
analysis. (The judge decided in favor of Polaroid in this
case.)
continued...
David Baldus, Esq.
July 18, 1983
Page 2
istic ssi iagnostics
I have enclosed a copy of an article by Daryl Pregibon that
represents, to my knowledge, the most recent work on logistic
regression diagnostics. The word "diagnostic" conveys something
a little different in this context than in your book.
Pregibon's diagnostics are aimed at finding "weird" data points
(outliers) or data points that have undue influence on the fit
(high leverage points). He also suggests ways to "resistantly"
fit a logit using weighted likelihoods, so that no individual
points will greatly influence the final equation. (This method
of weighting is not analogous to the weighting you have been
doing to adjust for different sampling fractions.)
Pregibon's diagnostics are more akin to those provided by
SAS Proc REG than to the diagnostics discussed in your book.
Outlier and leverage detection methods and resistant fits are
trendy subjects in statistics these days. See the book by
Belsley, Kuh, and Welsch referenced in the REG procedure.
I include Pregibon's paper so you will be alerted to the
existence of these methods in the literature. I do not suggest
that you plan to apply these diagnostics by August 8. Pregibon
does say that "in a properly designed computer package" the
diagnostics are "free for the asking." But his opinion that no
continued...
David Baldus, Esq.
July 18, 1983
Page 3
logistic regression program that has the audacity to exclude his
diagnostics should be deemed acceptable has not exactly swept
the statistical programming industry off its feet to date.
Pregibon himself, as far as I know, does his programming using
the GLIM package from England. This package is not widely
available in the States. SAS and BMDP procedures do not
currently provide these diagnostics, though Frank Harrel's next
release of Proc LOGIST, due out this summer, will include them.
It is possible to program this stuff in SAS. We have been
planning to do it for some time because of our own interest in
the subject. But lit is not feasible to lay it out for Bruce; it
would take several days of programming and testing here to get a
procedure in which we would have confidence.
Weighting OLS Regressions
I am including a SAS program to do iterative reweightings
of OLS using Proc NLIN. Using NLIN is superior to the method I
gave you in Syracuse in that it can do repeated iterations with
less printout and fewer programming statements. But be aware
that there 1s no guarantee that such iterative reweichting will
converge, In such cases, I recommend that you do a one or
two-step welchting just to demonstrate that the heterosceda-
sticity in your OLS fits with a dichotomous variable does not
affect the your conclusions.
continued...
David Baldus, Esq.
July 18, 1983
Page 4
-
ison of Models
I have enclosed a SAS program to compare OLS and logit
results using the relative likelihoods. The model with the
higher likelihood is the model under which it is more likely
that we will see the observed results. The method follows those
generally laid out in Likelihood, by A.W.F. Edwards, Cambridge
University Press, 1972, and in G.E.P.. Box and D.R. Cox, "An
Analysis of Transformations," Journal of the Royal Statistical
Society, Series B, 26, pg. 211. But neither of these articles
discusses specifically the comparison of linear with logit
results. I suggest that you may want to calculate this
statistic to have in your hip pocket if you are asked if there
is any empirical comparison of the goodness of fit of the two
models, but you cannot cite any literature recommending this
exact method for this exact problem.
Inference in the Face of Low R-Square
Both Stephan and I have searched for references that would
strongly support your specific position, without success. Nor
have we found any that disclaim your position. The strongest
statement that we have found so far appears in Franklin Fisher's
Law Review article, and it generally supports your view, it
notes (as you and I discussed last week) that the absolute level
of R-squared should be viewed with caution, as it can be
continted...
David Baldus, Esq.
July 18, 1983
Page 5
strongly influenced by modeling choices that are unrelated to
the question of interest. We will continue to search for other
references.
ti 0} ssions
I have only just received Woodruff's report. We have been
debating the relative merits of weighting and nonweighting here
at Econometric Research, Inc. (ERI) without resolution. We are
doing some interesting computer work on the general subject. I
will send you additional results and references in the next
couple of days.
Given our disagreements at ERI, and Cole's initial
disagreement with Woodruff, I think you are safe in asserting
that the issue is complicated, and statisticians may disagree.
But given that Cole came around to Woodruff's view, and that
Woodruff has had much more time to consider the problem than we
have, if you have to go with one method Woodruff's appears the
more advisable. Of course, the strongest approach is to use
both methods, as you have done, and demonstrate that it makes no
practical difference.
For your information, there is much more agreement on how
to analyze problems where sampling is stratified on the inde-
continted...
David Baldus, Esq.
July 18, 1983
Page 6
pendent variables, or a subset thereof, rather than where
sampling is stratified on the dependent variable, as in your
case. This might be a consideration in your future work. I
will elaborate on this point in a couple of days.
Enclosures
EDUCATION
Ph.D.
M.A.
B.A.
EMPLOYMENT
March 1979
to
Present
April 1978
to
March 1979
STEPHAN MICHELSON
Econometric Research, Inc.
Economics, Stanford University, 1968
Economics, Stanford University, 1962
Economics, Oberlin College, 1960
(with honors)
New York University 1958-1959
Tanglewood, Summer 1956
(Orchestral Conducting)
Colby College (French, Summer 1955)
Econometric Research, Inc.
Washington DC
President:
As Chief Executive Officer, responsible for
management, administration, and quality of
work and presentations. Directs litigation
analyses and other research projects.
The Urban Institute
Washington, DC
Senior Fellow:
Resource person for Urban Institute President
and staff. Conducted research for a book on
social science and the law.
During this period, also served as a con-
sultant in the area of litigation support as
"Michelson Associates."
STEPHAN MICHELSON
Page Two
July 1974 Center for Community Economic Development
to Cambridge, MA
March 1978
Senior Economist/Research Director:
Directed a staff of fifteen performing
research on community based economic develop-
ment. Responsible for conceptualization and
supervision of research.
During this period, also served as a con-
sultant in the area of litigation support as
"Michelson Associates."
September 1972 Center for Law and Education
to Harvard University
April 1974 Cambridge, MA
Research Associate:
The Center for Law and Education is part of
the Legal Services back-up system. Served as
sole professional non-attorney with respon-
sibility for all non-legal litigation support,
such as statistical and economic analysis for
class action cases.
January 1974 University of California
to Irvine, CA
March 1974
Lecturer in Economics:
Taught two economics courses as a visiting
lecturer. Completed book on Public School
Finance.
September 1968 Graduate School of Education
to Harvard University
June 1972 Cambridge, MA
Lecturer:
Joint research and teaching appointment.
Taught research methods, radical economics,
labor economics and human capital. Served on
several Ph.D. orals committees.
STEPHAN MICHELSON
Page Three
Center for Educational Policy Research
Cambridge, MA
Research Associate:
Part of the "Jencks team" that produced the
book, Inequality.
September 1968 Department of Economics
to Harvard University
June 1970 Cambridge, MA
Research Fellow
September 1966 The Brookings Institution
to Washington, DC
August 1968
Research Associate:
Member of the Human Resources group. Wrote
unpublished book, consulted with U.S. Depart-
ment of HEW on the estimated effects of pro-
posed policies.
Summer 1966 Stanford University
Stanford, CA
Visiting Instructor (Economics)
September 1964 Reed College
to Portland, OR
June 1966
Instructor of Economics
BOOKS AND MONOGRAPHS
A Review of the Abt Associates' Evaluation of the Special
Impact Program (Project Director and Senior Author), Center
for Community Economic Development, July 1977.
STEPHAN MICHELSON
Page Four
Children Out of School in America, A Report by the Children's
Defense Fund of the Washington Research Project (multiple
authors), October 1974.
States and Schools: The Political Economy of Public School
Finance, W. Norton Grubb and Stephan Michelson, D.C. Heath
(Lexington Books), 1974.
Inequality: A Reassessment of the Effect of Family and
Schooling in America, Christopher Jencks et al., Basic Books,
1972, and Harper Torchbook, 1973.
An Impact Study of Day Care (multiple authors), Center for
the Study of Public Policy, February 1971.
Educational Vouchers, A Preliminary Report (multiple
authors), Center for the Study of Public Policy, March 1970.
ACADEMIC ARTICLES
"Regulation of Industry Through the Courts," in Fro m
the Organization of American Social Policy Research, edited
by Clark C. Abt, Abt BOOKS, 1930.
"Statistical Determination in Employment Discrimination
Issues." in The Use/Nonuse/Misuse of Applied Social Research
in the Courts, edited by Michael J. Saks and Charles H.
Baron, Abt Books, 1980.
"History and State of the Art of Applied Social Research Used
in the Courts," in The Use/Nonuse/Misuse of Applied Social
Research in the Courts, edited by Michael J. Saks and Charles
H. Baron, Abt Books, 1980.
"The Working Bureaucrat and the Nonworking Bureaucracy,"
American Behavioral Scientist, Vol. 22, No. 5, May/June 1979,
Reprinted in Carol H. Weiss and Allen H. Barton, editors,
Making Bureaucracies Work, Sage Publications, Inc., 1980.
"Community Based Development In Urban Areas," in Central City
Economic Development, edited by Benjamin Chinitz, Abt Books,
1979. Reprinted in Robert Friedman and William Schweke, edi-
tors, Expanding the Opportunity to Produce: Revitalizing the
American Economy Through New Enterprise Development, 1981.
STEPHAN MICHELSON
Page Five
"What is a 'Just' System for Financing Schools: An
Evaluation of Alternative Reforms," Law and Contemporary
Problems, Vol. 38, No. 3, Winter-Spring 1974; pp. 436-438.
"Public School Finance in a Post-Serrano World," with Norton
Grubb, Harvard Civil Rights-Civil Liberties Law Review,
Vol. 8, No: 3, May 1973; pp. 550-570.
"Economics in the Courts: Equal School Resource Allocation,"
Journal of Human Resources, Vol. 3, No. 3, Summer 1972;
Pp. 283-306.
"The Political Economy of Public School Finance," ‘in Martin
Carnoy, editor, Schooling in a Corporate Society, David
McKay, 1972.
"Rational Income Decisions of Negroes and Everybody Else,”
Industrial .and Labor Relations Review, Vol. 23, No. 1,
October 1969; pp. 15-28. Revised and reprinted in Martin
Carnoy, editor, Schooling in a Corporate Society, David
McKay, 1972.
Critique of "Social and Economic Conditions of Negroes in the
United States" (U.S. Government), co-author: Rashi Fein
(called "The Brookings Critique"), The Washington Post,
January 1968. Reprinted in Joseph, Bach and Seeber, editors,
Economic Analysis and Soeial Policy, Prentice-Hall, 1971.
"The Association of Teacher Resourceness with Children's
Characteristics," in Do Teachers Make A Difference?, U.S.
Office of Education, Washington, D.C., 1970.
"The Economics of Real Income Distribution," Review of
Radical Political Economics, Vol. 2, No. 1, Spring 1970.
"On Income Differentials by Race: An Analysis And A
Suggestion," Conference Papers of the Union for Radical
Political Economics, December 1968; pp. 85-121.
NEWSLETTER ARTICLES
Inequality in Education
Newsletter of the Center for Law and Education
"Who Gets To Do What?" with Roger Rice, No. 15,
March 1974.
STEPHAN MICHELSON
Page Six
"Principal Power," No. 5, June 1970.
"Equal Protection and School Resources," No. 2,
December 1969.
CCED Newsletter
Center for Community Economic Development
"On Profit Maximization by SIP Ventures," June-July
31977,
"On Assessing Economic Impact: The Multiplier,"
October-November 1976.
"Projecting Capital Requirements," June-July 1976.
The Expert and the Law
A publication of the National Forensic Center
"When Experts Disagree,” Vol. 3, No. 2, April 29, 1983.
REVIEWS AND DISCUSSIONS
Review of Jonn D. Owen, School Inequality and the Welfare
State, Johns Hopkins University Press, 1974, in Monthly Labor
Review, July 1975.
"The Further Responsibility of Intellectuals," essay review
of Christopher Jencks et al., Inequality, in Harvard
Zducational Review, Vol. 43, No. 1, February 1973;
pp. 92-105.
Review of Guthrie, Kleindorfer, Levin and Stout, Schools and
Inequality, in Educational Studies, Vol. 3, No. 2, Spring
1972; pp. 41-42.
Comment on Lester Thurow's "On Analyzing the American Income
Distribution," American Economic Review, Vol. LX, No. 2, May
1970; pp. 283-285.
STEPHAN MICHELSON
Page Seven
EXPERT TESTIMONY
Shirley Bechtel v. Allstate Insurance Company, C81-105
(Walinsky) N.D. Ohio, June 28-29, 1983. (Discrimination
against females in hiring and assignment. Testimony for
defendants showing sex-neutral offers for sales agent posi-
tions with respect to applicant.)
EEOC v. International Business Machines Corporation. C.A.
80-1408 (Ramsey), D.MD., June 16-17, 1983. (Discrimination
against black professional and managerial personnel, Maryland
facility, in promotion and salary. Por plaintiffs only in
rebuttal of defendant's statistical presentations.)
Pence -v. Shulton and Hart v. Shulton, C.A. 81-2311 and
81-2454 (Sarckin), D.N.J., June 2, 1983. (Discrimination by
age in terminations. For defendants. Jury verdict for
defendants.)
EEO Complaint of Cecily P. Osteen, Library of Congress
Adminstrative Hearing, December 14, 1982. (Discrimination in
promotion against older females. Testimony for defendaats
using stipulated data, showing no non-random selection by age
and sex.)
Robinson et al. 9. Polaroid Corp., C.A. Nos. 77-2520-8,
77-3514-S and 77-1244-S (Skinner), D.MA, November 12, 15, and
16; December 22, 1982. (Discrimination against blacks in
layoffs in 1974 through 1975. Testimony for Defendants
showing that seniority fully explained apparent race
disparity.) Ruling for defendant, June 24, 1983.
Smith v. Lubbers, C.A. 81-1747, D.D.C., May 25, 1982. (Age
discrimination in employment. For defendant, National Labor
Relations Board, showing that individual plaintiff's rejected
applications for transfer to field position were not part of
a discernible pattern of rejection of applicants over age
40.) All allegations dismissed.
EEOC v. D. Justin McCarthy et al. (Framingham State
College), C.A. No. 76-2140 {(Zobell), D.MA, March 16, 1952.
(For plaintiffs who alleged equal pay act violations.
Findings that females were paid equally on hire, but fell
behind thereafter.)
Harrison et al. vv. Lewis, 79 Civ. 1816 {(Opberdorfer), D.D.C.,
February 25 and 26, 1982. (Discrimination in promotion such
that white males were favored over others, alleged by plain-
STEPHAN MICHELSON
Page Eight
tiffs. Testimony for defendants that selection of competi-
tion winners from eligible applicants showed no male-female
differential, nor black-white differentials at high grade
levels, when selections from applicants to posted announ-
cements were examined.) Opinion June 1982, dismissing claims
dismissing claims of sex discrimination, but finding for
plaintiffs in some claims of race discrimination based on
defendant's presentations.
Cain oft al. ve. Trans World Airlines, 78 Civ. 2119 {Sand),
S.D.N.Y., January 1982. (Fifty-seven individual plaintiffs
claiming breach of employment contract. Estimates of damages
presented for plaintiffs in damages phase of bifurcated
case.) Jury awarded $1.75 million in damages, reduced to $1.2
million.
Marson v. Jones & Laughlin Steel Corp., C.A. No. 79-C-493,
E.D. Wisconsin, September 1981. (For plaintiffs, age dis-
crimination in terminations. Rebuttal to correct calculation
errors made by defense expert witness.)
Mateza v. Polaroid Corporation, Superior Court of ’ftassachu-
setts (Middlesex), No. 76-3379 (Murphy), November 1980. (Sex
and age discrimination in pay and promotion. For defense,
both in rebuttal of plaintiff's expert and presenting class-
wide promotion study. All claims dismissed July 30, 1981.)
U.S. Department of Labor v. Pirestone Tire & Rubber (Co.,
Ine., U.S. Department of Labor Administrative Proceeding,
Case No. 80-OFCCP-15 (Sternburg, ALJ), May 1980. (For defen-
dants, who were charged with failing to declare underutiliza-
tion in accordance with regulations.) Decision for defense
May 29, 1980, overruled by Secretary of labor. District
Court upheld original decision in Firestone v. Marshall, E.D.
Texas, 24 FEP Case 1699, February 11, 1981.
U.S. Department of Labor v. Kerr Glass Manufacturing Corpora-
tion, U.S. Department of Labor Administrative Proceeding,
Case No. 77-OFCCP-4, October 29, 1979. (Rebuttal witness for
plaintiffs, who charged that the glass container industry's
job evaluation manual incorporates sex-biased wage differen-
tials.)
U.S. Department of the Treasury v. Harris Trust and Savings
Bank, U.S. Department of Labor Administrative Proceeding,
Case No. 78-0OFCCP-2 (Burrow, ALJ), August and September 1979.
STEPHAN MICHELSON
Page Nine
(For plaintiffs who charged Harris Trust with salary discri-
mination on the basis of sex and race. A contract debarment
proceeding.) Administrative Law Judge finding for plaintiff,
January 30, 1981. Remand by Secretary of Labor May 17, 1983,
31 TEP Cases ‘1223.
Caulfield v. Board of Education of the City of ¥ew York, E.D.
New York, Case No. 77-C-2155 (Weinstein), 21 EPD 30,389, 24
FEP Cases 1418, May 1979. (Local District No. 26, the
teachers' union and others sued the Board and the Office of
Civil Rights of HEW, to overthrow an affirmative action
agreement. For U.S. Attorney in defense.) Decision for
defense, allowing agreement to stand, July 1979. Affirmed
532 F. 24 999, September 22, 1980.
Equal Employment Opportunity Commission v. Tufte Institution
of Learning, D. Massachusetts, C.A. No. 74-5279 (Murray),
January 1977. (For plaintiffs, who charged Tufts with
discriminating against women in faculty salaries.)
Rhode Island Society for Autistic Children, Ine. et al. v.
Board of Regents for Education of the State of Rhode Island,
D.R.I:.; No. 5081 {(Pettine), Bugust 1975. {For plaintiffs who
charged that children were misclassified as retarded based on
race.) Settled for corrective action after trial on merits
had begun.
Morgan ve. Hennigan, 379 F. Supp. 410 (1974) (Garrity), Af'4
509 F2d 580 lst Circuit (1974), Cert. denied 421 US 963
(1975), {Por plaintiffs, who charged that the Boston School
Committee segregated schools and discriminated against
minorities in the hiring of teachers.) Desegregation and
non-discriminatory hiring ordered.
Robinson ». Cahill, 62 NJ 473, 303 A. 2d 273 (1973)... (School
resources in New Jersey allocated by income of community.
For plaintiffs.) Current law found to violate state
Constitution.
Josephe v. Board of Appeals of Brookline, Superior Court of
Norfolk, Norfolk Equity No. 103078 (1971). (Challenge to
planned new construction for inadequate transportation facil-
itiea, For plaintiffs.) Won on appeal.
STEPHAN MICHELSON
Page Ten
Cynthia uv. 0'Xelly, C.A: No. 13714, S.D. Georgia, april 1970.
(For plaintiffs, suing local school board for not applying
for funds under Title I of the Elementary and Secondary
Education Act because, it was claimed, funds would have aided
only black children.) Lost in district court, but won on
appeal.
ANALYSES FILED IN LAWSUITS
"Polaroid Corporation layoffs 1974 through 1975 By Race,”
{two volumes), Robinson et al. v. Polaroid Corporation, CA
Nos. 77-2520-5, 77-3514-5, and 77-1244-5, November 11, 1982.
"An Analysis of the Age of Selections of Transfers from the
Headquarters of the National Labor Relations Board to Field
Positions,” Smith pv. Lubbers, D.D.C., CA. 81-1747, March 17,
1982.
"Employment Practices at the Navy Resale and Services Support
Office, 1974 through 1978," with Timothy Wyant, in Verdell wv.
Xoeher, E.D.N.¥., CA. 76-C-908, March 10, 1982. (Rebuttal
and affirmative case in defense. Plaintiffs withdrew class
claims after receiving this report.)
"A Statistical Analysis of Competitive Appointments at the
Maritime Administration Headquarters," in Harrison 2t al. v.
Lewie, D.D.C., C.A. 79-1816, Pebruary 22, 1982. (Extensive
analysis of selection from applicants for positions at the
U.S. Maritime Administration Headquarters, including parame-
tized random assignment of race to applicants of unknown
race.)
"!'Promotions' at the Navy Regional Data Automation Center: A
Study of Competitive Promotions and Career-Ladder Advancement
March 24, 1972 through May: 15, 1981," assisted by Jay Gruber,
in Trout v. Hidalgo, D.D.C., CT.A. 73-55, October 28, 1981.
"A Study of Promotion Among Salaried, Non-Technical =mployees
at Polarcid, By Sex, 1977-1979," with Timothy Wyant, in
Mateza v. Polaroid Corporation Superior Court of
Massachusetts (Middlesex), Number 76-3379, November 1980.
"Critique of Plaintiffs' Statistical Studies," Matzza v.
Polaroid Corporation, Superior Court of Massachusetts
(Middlesex), Number 76-3379, November 1980.
STEPHAN MICHELSON
Page Eleven
Affidavit filed in Miller v. Staats, D.C.C., CA No. 73-996,
April 1980. (Summary of regression analysis estimating GS
grade levels in two federal agencies. For plaintiffs, who
claimed race and sex discrimination. Settled for $4 million
in relief, 1980.)
"Teacher Transfers to Achieve Compliance with the September
1977 Memorandum of Agreement Between the School Board of the
City of New York and the Office for Civil Rights,
U.S.D.H.E.W.: A Simulation," with Gail Blattenberger, in
Board of Education v. Harris, E.D. New York, January 28,
1980.
Affidavit filed in Sun Ship, Inc. v. Edward Hidalgo et
alt., D.D.C., January 19380, (Analysis of the probability of a
low bidder not being the lowest cost producer. For low bid
plaintiff, challenging contract awarded to another ship
builder. Decision for defense.)
"The Harris Bank: An Analysis of Employee Compensation" in
U.S. Department of Treasury v. Harris Bank, OFCCP Administra-
tive Proceeding, August 6, 1979.
"The Hiring and Assignment of Teachers in the New York City
Public School System," with Gail Blattenberger, in Caulfield
Ys. Board of Zducation, E.D. New York, May 10, 1979,
Written submission (preliminary data analysis supporting
motion for class certification) in Bette 4. Boughton et al.
v. Addison Wesley Publishing Co., D. Massachusetts, C.A. No.
76-3687-T, May 1978. (For plaintiffs, who claimed that
defendants discriminated against women in promotion and pay.
Certification granted. Case settled in 1980.)
"A Statistical Analysis of Faculty Salaries in the College of
Liveral Arts at Tufts Institution of Learning,” in ZEZ0C v.
Tufts, D. Massachusetts, January 1977.
An Analysis of the Racial Consequences of Utilizing the
National Teacher Examination in the Selection of Teachers for
the Boston School System," in Morgan v. Hennigan, D. Massa-
chusetts, February 2, 1983.
Director of Research for plaintiff, author of report referred
to in opinion as "the Michelson analysis," Hobson v. Hansen,
327 F. Supp. 824 (1971). {Complaint that school resources in
the District of Columbia were allocated to favor white and
STEPHAN MICHELSON
Page Twelve
high income children. Analysis showing that "economies of
scale" defense was deficient. Finally for plaintiff, with
order to equalize per pupil expenditures. No appeal.)
ACADEMIC INSTRUCTION (Guest Appearances)
Boston University School of Education
Boston University School of Law
Bucknell University
Howard University
Institute for Social and Policy Studies, Yale University
Massachusetts Institute of Technology
Northeastern University
Trinity College (Hartford, CT)
University of California, Irvine
University of Michigan
University of New Hampshire
Williams College
Woodrow Wilson School, Princeton University
University of Pittsburgh
University of Tennessee, Knoxville
OTHER PROFESSIONAL ACTIVITIES
Invited Speaker, Political Economy Research Association,
University of Utah, May 1983
Guest Speaker, Chicago Chapter American Statistical
Association, March 1983
Panelist, Massachusetts Bar Association, January 1983.
Discussant, Association for Public Policy Analysis and
Management, Panel on Law and Policy Analysis,
October 1980
Panelist, Law and Society Association, June 1980
Panelist, "The Statistician as an Expert Witness,"
Boston Chapter of the American Statistical
Association, February 1980
Co-leader, Workshop (On Statistics) for Judges of the
Fifth Circuit, Federal Judicial Center,
January 1979
Member, Select Panel on Standard for Proof of
Discrimination, U.S. Department of Labor
(OFCCP), 1978-79
Discussant, American Educational Studies Association
Annual Convention, November 1978
Organizer and Chairman of two conferences on Input-
Output Analysis, April 1975 and April 1976
STEPHAN MICHELSON
Page Thirteen
Organizer and Chairman of a Conference for Community
Development Corporation Planners, St. louis,
October 1976
Instructor, "Radical Economics," evening course at the
Cambridge Center for Adult Education: Fall 1973;
Summer and Fall 1974; Summer 1975
National Steering Committee, Union for Radical
Political Economics, 1968-69
Panelist, Symposium on Educational Productivity,
American Education Research Association, April 1974
Chairman of Symposium on Social Mobility, American
Education Research Association, April 1971
Discussant, Econometrics Society Annual Meeting,
December 1972
Discussant, American Economics Association, Annual
Meetings, December 1969 and December 1971
REFEREE AND REVIEW
American Education Research Journal
Growth and Change
Journal of Human Resources
Journal of the American Statistical Association
Sociology of Education
National Science Foundation
Journal of Business and Economic Statistics
PROFESSIONAL ORGANIZATIONS
American Economic Association
American Statistical Association
Union for Radical Political Economics
July 1983
Machine Shorthand Reporting Service
515-520 Loew Building
Vito Lentini, CSR Syracuse, New York 13202
Ed Alweis, CSR
John Gehl, RPR
And Staff
(315) 422-3990
(315) 422-3995
THE RECORD NEVER FORGETS
August 10, 1983
John Charles Boger, Esq.
10 Columbus Circle
New York, N.Y. 10019
Dear Mr. Boger;
Enclosed please find copies of the Errata sheets
as submitted by Professor Baldus, the originals of
which were forwarded to Ms. Westmoreland in Atlanta.
I, of course, didn't know if Professor Baldus
had supplied you with copies and thought you'd want
to complete your file with same.
truly yours,
HF /
0/ = 2 A 747, §
& i
John S.. Gah
90
ERRATA SHEET - Volume I
Dear Prof. Baldus:
In accordance with the rules of procedure governing
depositions you are entitled to read and correct your deposition
before it is filed. Accordingly, please carefully read your
deposition and, on this errata sheet, make any changes or
corrections in form or substance to your deposition that you
feel should be made. You may add additional sheets if necessary
You are to identify these changes/corrections by page and line
number, give the correction or change desired, and state the
reason therefor (or the word "none") PLEASE DO NOT MARK THE
TRANSCRIPT. After completing this, sign at the conclusion of
such changes/corrections (if any) and also sign on the last
page of the transcript. Then kindly return both this Errata
Sheet and the transcript to the individual charged with filing
the transcript with the Court.
PAGE LINE NO. CHANGE/CORRECTION REASONS THEREFQ
R
5 14 to to of All changes are
11 6 conducted to collected transcription or
12 3 Bentley to Bentle typing errors unless
12 2% conversation to conversations otherwise noted,
13 17 Bentley to Bentle.,
20 18 delete sentences and add
sentencing studies
21 Z Insert "in" after office
26 21 Insert "in" after the word pass
28 11 After the word for, insert the
After the word of, ‘insert a
29 19 join the word jurisprudence.
29 2) Insert the word of after application
29 20 Change context to contexts
30 15 Change preceded to read proceeded
21 19 remove comma after the word states
31 20 change Welfare to lower case
3 21 change Welfare. to lower case
32 4 Change expansive to read extensive
33 2 Insert the word the after the word in
35 3 Change the word a to the word the ~~
35 h! Put a period after punishment.
Capitalize the word In
36 9 Inser the A after the word of
36 21 Insert the wor at after poset
38 11 Delete the word a
38 1? Change the word Centers to read Studies
41 15 Change strenghts to read strengths
51 9 Insert the word and after illegitimate
IACHINE
520 LOEW BUILDING
OHORTHAND
en 13202
(315) 422-3985 5 ND \ = ar
ERRATA SHEET - Volume I cont.
CHANGE /CORRECTION
Insert the word of after the word so
Change the word talking to statin
Change the word degree to read year
Change the word Intellect to
read interest :
Insert the word is after the comma
Change the name Fred to Ralph
Change the word mind to read mine
REASONS THEREFOR
All changes are
transcription or
typing errors unless
otherwise noted.
ERRATA SHEET - Volumn 2
PAGE LINE CHANGE/CORRECTION REASONS THEREFOR
11 15 Spelling of the word and : All changes are
16 14 Should be basic instead of basis transcription or
16 23 The word cased should read cases typing errors
17 5 Word should read defined unless otherwise
21 11 Word should read Do . noted.
ol 16 Word should read data instead of date
25 1 Word should read Well
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67 1 Should read - circumstances and criteria
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18 Name is Martha McGill
20 Name should read John Greeno - delete balance of sentence.
68 8 Should read "in earnest to"
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14 Correct the word and
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111 7 Correct the word right
118 3 O(hange it to read NORYILL
4 Change it to read NOVICMIT
119 17 Delete the word not
122 15 Word should read principled
=
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*
7
~
ERRATA SHEET - Volumn 2 cont.
LINE GENE CORRECTION
Add the words were. present after factors.
Insert the a between on and co-author
Delete both of these Iines - without meaning
Insert the words do not after I
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PAGE
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LDFB8 and 1DFRB2.
REASONS THEREFOR
©
)
[Volume 3]
56
ERRATA SHEET
Dear Prof. Baldus:
In accordance with the rules of procedure governing
depositions, you are entitled to read and correct your depo-
sition before it is filed. Accordingly, please carefully read
your deposition and, on this errata sheet, make any changes or
corrections in form or substance to your deposition that you
feel should be made. You may add additional sheets, if
necessary. You are to identify these changes/corrections by
page and line number, give the correction or change desired,
and state the reason therefor (or the word "none"). PLEASE DO
NOT MARR THE TRANSCRIPT. After completing this, sign at the
conclusion of such changes/corrections (if any) and also sign
on the last pace of the transcript. Then kindly return both
this Errata Sheet and the transcript to the individual charged
with filing the transcript (Machine Shorthand Reporting) with
the Court,
PAGE LINE CHANGE/CORRECTION REASONS THEREFOR
2 7 Change to read .- Where did you . All changes are
compute it2 Have you documents... transcription or
9 Change to read - I have documents. typing errors
It's on the SAS correlation unless otherwise
3 5 Put the word it before the word does noted.
10 Insert the word the after the word time
7 5 Change to read - populations of cases
7 Change to read - significance, the
9 disparity, the number of factors
controlled on, and sample sizes.
8 12 Change to read - significant, at the
9 4 Change name to Mr. May
18 17 Change to read - correlated with one...
19 8 Change to read - footnote, that death..
23 22 Change the word correlation to collection
25 4 Change to - finds support.
31 2 Change to read - increase in the number of
43 22 Change to read - Dr. Katz
46 12 Change the word impressed to included
47 23 Name is Prof. Bentle's report -
52 12 Change data to date
[VIACHINE
S20 LOEW BUILDING
CHORTHAND SYRACUSE, NEW YORK 13202
(315) 422-3990
OF PORTING Service
(315) 422-3998
§ [A18YS - 3 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC
El mY efense Bi iund 10Columbus Circle, New York, N.Y. 10018 ® (212) 586-8397
via Purolater
July 29, 1983
Professor David C. .Baldus
College of Law
Syracuse University
Syracuse, New York 13210
Dear Professor Baldus:
I have enclosed a copy of a summary
of your preliminary report. 1 hope it is helpful.
If you would like me to elaborate on any of the
points made in the summary it would be my pleasure
todo so.
My apologies for covering certain areas
only briefly; however, this was necessary due to
time constraints.
I hope to have the opportunity of speaking
with you goon. : Best regards.
Sincerely,
Sam Laufer
75 oF
SL;agf
enc.
Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget.
SUMMARY
of
Discrimination and Arbitrariness in
Georgia's Capital Charging and Sentencing System
by Sam Laufer
I. Introduction
The authors explain that the fundamental goal of
their research has been to discover, using empirical scientific
methodology, '"the facts that determine which homicide defendants
are sentenced to death in Georgia's capital charging and sentenc-
ing process." (Discrimination and Arbitrariness in Georgia's
Capital Charging and Sentencing System, p. 1. Hereinafter
cited as "Report.")With this in mind, the authors outline two
areas which they plan to explore:
l) The effect, if any, of the two race variables
(i.e., race of victim, race of defendant) on the death sentenc-
ing decision, while accounting for a significant number of non-
racial factors.
2) The impact of racial and non-racial factors at
each of the stages of the Georgia capital charging and sentencing
process, examining the effect of racial and non-racial factors.
The reader is then presented with a brief discussion of
the statistical analyses involved in the study and is familiarized
with the ten statutory aggravating factors in the Georgia system.
The authors then present brief sketches of Georgia's capital
charging and sentencing process, as well as their death sentence
review process.
Page 2.
II. The General Method of Proof Used in This Study
The authors examine two alternative methodological
approaches employed by the sciences, in order to choose the
most appropriate one for their study.
A. The Controlled Randomized Experiment
A controlled randomized experiment requires both
experimental and control groups, whose random selection 'preclude*
differences other than those created or influenced by the variable(s)
in question (e.g., race). After discussing more thoroughly the
conditions necessary in order to create a controlled randomized
experiment for testing discrimination and arbitrariness in
Georgia's capital charging and sentencing system, the authors
conclude that "for a variety of reasons" this type of experiment
would not be possible. They assert that the more appropriate
means for conducting their research, an "alternative method for
testing causal hypotheses," is the retrospective non-experimental
study.
B. The Retrospective Non-Experimental Study (RNES)
The authors state that for a retrospective non-experi-
mental study to be undertaken "one must first identify all of
the factors that are likely to affect the outcomes of the process
under study. One then selects two groups of cases that are
sufficiently numerous for statistical purposes and are similar
with respect to all relevant factors except the factor to be
examined.” (Report, p. 16.)
Page 3.
The authors us a previously well-conducted RNES,
called the National Halothane Study as an example of how a study
of this type could be carried out.
111. The Design of the Study
The authors use the RNES design of the National
Halothane Study as the basis for two independent yet related
studies which both assess the impact of racial factors on death
sentencing. They are the Procedural Reform Study (PRS) and the
Charging and Sentencing Study (CSS), and together comprise the
study on Discrimination and Arbitrariness in Georgia's Capital
Charging and Sentencing System. The authors outline three basic
differences that distinguish the CSS from the PRS. They are as
follows:
1) Multi-stage analysis of decisions
in the CSS in contrast to a two stage
analysis in the PRS
2) More cases are examined in the CSS
3) "More elaborate research questionnaire" in the CSS
These differences are examined in more detail in the
context of a discussion of the four basic steps underlying both
studies.
A. The Identification of Non-Racial Background
Factors
Non-racial background factors to be used in both
studies were established after extensive research into the
subject (see Report, pp. 20-21).
Page 4.
In addition to over 250 variables examined in both
questionnaires, information concerning "procedural characteristics"
differing across both studies was also gathered, such as the "type
of conviction and sentence" for the CSS and "whether there was a
penalty trial" for the PRS. (See Report, pp. 22-23 for complete
lists)
B. Universe and Sample Specification
i) The CSS
The CSS has a universe of 2474 cases, of which 128
received a death sentence. Two samples make up the CSS, the first
with 1066 murder and voluntary manslaughter conviction cases,
the second with 257 penalty trial decisions. The authors utilized
serveral sampling techniques in order to establish the cases to
be used.
ii) The PRS
The PRS focuses solely on the "penalty trial stage
of Georgia's capital sentencing process," and has a universe of
594 cases. Out of the universe, 203 cases had one or more
penalty trials, with the jury relating a death sentencenin 113
of these.
Cc. Data Collection
i) The CSS/Data Sources
The authors utilized many data sources for this study
including the Georgia Department of Corrections, Board of Pardons
and Paroles, Supreme Court, and Bureau of Vital Statistics. In
some cases, data was collected from either defense counsel or
prosecutors,
Page 5.
ii): The CSS/Coding
The coding of the data occurred "in the summer of
1981 in the offices of the Parole Board." The coders, chosen
after an extensive search, received-a training program in coding
and during the course of the project maintained "an extensive
set of protocols to insure consistency in coding." (Report, p. 31.)
iii) The PRS/Data Sources
Data was collected "from the same sources used in the
CSS." In this study, data collection required several phases,
including the completion of a questionnaire and "a detailed factual
statement."
iv) The PRS/Coding
Data coding took place at the University of Iowa,
where law students with Professor Baldus' guidance, coded the
information. Coding was continually examined for 'consistency
and accuracy'. (Report, p. 33.)
D, Entry of Data Into the Computer
The authors describe three phases involved at this
boint:
1) Initial data from the PRS and CSS questionnaire
is entered into the computer
2) Data in computer is 'merged' with new information
3) Computer file is updated with new data
Page 6.
E. Data Analysis
The authors outline the two stages involved in data
analysis; 1) descriptive; 2) evaluative. The descriptive stage
is discussed in part IV, and the evaluative stage in parts V,
VI, and VII.
lv. The Flow and Characteristics of the Cases
The authors describe the progression of the CSS cases
in the system, charting the proportion of the original 2474 offenders
who progressed through each of the six stages of the charging and
sentencing process. (See pp. 37,38, Report.)
The results indicate that chances for receiving a
death penalty increase as a defendant remains in the system.
Each stage reduces the caseload by different proportions of cases,
with the prosecutorial decision on whether to advance a case to
penalty trial reducing the cases by two thirds (2/3). After this
decision, the risk of receiving a death sentence increases from
17% to 52%.
The authors go on to say that any effort to measure
the impact, if any, of a defendant/and/or victim's race on the
death sentencing decision necessarily involves the identification
of as many non-racial variables as possible. The reader is
offered Table DD which lists "a frequency distribution" of the
case characteristics for the 2474 cases.
Page 7.
V. The Statistical Methodology Used to Assess the Influence
of Race and Illegitimate Factors in the Capital Charging
and Sentencing Process
In this section the reader is offered a discussion
of the statistical methodology used for assessing "the influence
of racial characteristics in Georgia's capital charging and
sentencing process." Using 'legitimate factors' as examples,
the authors discuss the influence of both unadjusted and
adjusted case characteristics on background factors.
A. Unadjusted Measures of the Impact of Case
Characteristics on the Death Sentencing Rate
Here, the unadjusted measure determines the amount
of influence which the presence or absence of a particular case
characteristic (e.g., contemporaneous felony) has on the death
sentencing rate. The extent of influence can be refIected in
four ways. They are: 1) Arithmetic Difference
2) Ratio of death sentencing rates
3) Ordinary Least Squares (0.L.S.)
4) Odds-ratio multiplier
(See Report, pp. 40-45 for a detailed examination of the above
procedures.)
The authors illustrate the four procedures listed
above with examples involving aggravating and mitigating factors.
These examples reveal the responses of the data to each of the
measures applied. In addition, the reader is offered additional
examples of how the four procedures may be utilized "to describe
the impact of particular variables on death-sentencing rates"
using the ten statutory aggravating factors. The results
Page 8.
(see Table EE) indicate that other than the B-3 factor, all the
statutory aggravating factors have a positive, significant effect
on the death sentencing rate.
B. Measure of the Impact of a Case Characteristic
Adjusted for the Impact of One or More Background
Characteristics
The authors assert that the impact of a case character-
istic, assessed using an unadjusted measure "does not necessarily
reflect a causal relationship" (Report, p. 46.) For example,
in cases involving B-8 (Law officer victim), where unadjusted
measures show a disproportionately high death sentencing rate,
aggravating factors which tend to accompany B-8 cases such as
B-2 (contemporaneous offense), may actually be responsible for
most of the perceived impact.
Where the cause of impact is indeterminate, it is
necessary to control for other factors than the one in question.
The authors discuss two procedures for "introducing such controls”
or "adjusting fof the effect of the control variable." They are
cross-tabulation and multiple regression.
1.) Typical Responses Produced by the Introduction
of Controls for Background Variables.
Here, the reader is presented with three common
responses that the subject variable of interest has when a
control variable is introduced. They are as follows:
a) Statistical impact of the variable of interest
declines with use of control variable.
b) Control variable maintains only limited statistical
impact on particular subject variables.
c) Control variable decreases statistical impact with
some variables of interest and increases impact
with others.
Page 9.
Illustrating these three common responses with
examples involving B-2, B-4, and B-7 factors, the authors reach
the important conclusion that B-2 and B-7 factors have the most
impact regarding imposition of a death sentence.
2.) Background Adjustment for Two or More
Control Variables
The authors assert that cross-tabulation and regression
procedures can be employed in order to control for "more than one
background factor” (Report, P. 58). In addition, the use of both
cross-tabulation and regression procedures simultaneously, is
important because either one alone may 'mask' a variable's true
impact.
The authors remark that use of controls usually reduces
the statistical impact from that observed with unadjusted measures.
(See Report, p. 62). If, however, a factor retains its statistical
significance even after several controls have been introduced, it
is evident that the factor has a "real effect on the system.”
{Report,p.62.)
VI. Evidence of the Impact of Race of Victim and of. Defendant
on the Capital Charging and SEntencing Process
Here, the authors use cross-tabulation and multiple
regression to analyze the influence of racial factors in Georgia's
capital charging and sentencing system. They assess the impact
of racial variables over seven different groups of variables
using both unadjusted and adjusted measures. The results are
as follows:
A.) Impact of Race of Victim and of Defendant
before Adjustment for any Background Factors
Data reflect significantly higher likelihood of a
death sentence for cases with white victims, however a lower
probability for black defendants.
B.) Racial Disparities after Controlling for
Race of Defendant and Race of Victim
The results indicate higher odds of receiving a death
sentence for white victims, 13.5 times more than for black victim
cases, and show that black defendants will be sentenced to death three
times: more often than white defendants.
C.) Racial Disparities after Separate Adjustment
for Felony Circumstances, Prior Record, Multiple
Victims, Stranger Victim, and the Presence of
a Family, Lover, Liquor or Barroom Quarrel
Here, race variables are analyzed with the remaining
racial characteristics and the five "factual characteristics" adjusted
for. Although race variables responded to the introduction of each
of the control variables, none of the five explained the strong
disparities completely or even in a significant way.
D.) Racial Disparities after Adjusting Separately
for Statutory Aggravating Factors
Here, even after controlling for each statutory aggravating
factor, race of victim disparities persist, especially in B-7 cases.
E.) Racial Disparities After Simultaneous Adjustment
for Two or More Non-Racial Background Factors
The authors control for different non-racial factors
in order to qualify racial disparities. They use four examples
to illustrate their points.
1) Adjustment for Felony Circumstances, Prior
Record, Family, Lover, or Drinking Quarrel,
Multiple Victims, and Stranger Victim Variables
Even after all these characteristics were controlled,
racial disparities remained, especially among race of victim
variables.
Page 11.
2) Racial Disparities After Controlling for the
Background Effect for all Statutory Aggravating
Factors and Defendant's Prior Record
The results indicate that when the prior record variable
along with all the aggravating factors are controlled for, race of
defendant and victim variables retain their significance through
O0.L.S. procedures, and only the race of defendant loses its
significance with the logistic analyses.
3) Racial Disparities Observed After Controlling
for the Background Effect of Statutory Aggravating
Factors and Over 80 Mitigating Factors
The analyses indicate that coefficients for the racial
variables remain basically unchanged, even after limiting the
regression analysis to those aggravating and mitigating factors
"that shane a statistically significant relationship (P. 10)
with the death sentencing result using a backward elimination
regression analysis." (Report, p. 85.)
4) Racial Disparities After Controlling for the
Background Effects of Over 250 Aggravating,
Mitigating, Evidentiary, and Suspect Factors
Even after controls are introduced over all these
variables, the race of defendant and victim variables remain
disparate. In fact, the race variables appear to have as much
influence in the imposition of a death sentence as do several
case characteristics. (Report, p. 90)
F.) Racial Disparities Observed in Limited File
Multiple Regression Analyses
Here, the authors utilize "a series of alternative
regression analyses involving selected background variables
as well as two different regression procedures" (REport, p. 91.)
Throughout each of the measures there were consistent results
Page 12.
which supported the earlier analyses.
G.) The Likelihood That the Inclusion of Non-Racial
Background Variables Omitted From the Analysis
Would Explain the Racial Disparities in Death
Sentencing Rates
The authors assert that they have included all the
variables that could possibly yield any significant influence on
the observed racial disparities.
VII. The Source of Overall Racial Disparities in Death
Sentencing Rates
A. Variations by Type of Case
The authors assert that in those cases involving vague
statutory aggravating factors such as B-3 and B-7, decision-makers
can resort to discretion the most. They give general support for
a "vague standards" hypothesis using objective and subjective
distinctions between the statutory aggravating factors as support.
B. Racial Disparities Among "Al Risk" Defendants
The authors group cases according to their likelihood
of receiving a death sentence. Data support what is termed the
"liberation hypothesis" which states "that the exercise of
discretion is most susceptible to the influence of arbitary
factors when circumstances do not clearly dictate the appropriate
decision.” (Report, p. 113.) Hence, those cases which may or may
not qualify for a death sentence involve the most amount of dis-
cretionary judgment.
C. Racial Disparities at Successive Stages
in the Charging and Sentencing Process
Racial disparities in death sentencing are the result
of six decision-making stages involving juries and prosecutors.
The authors examine racial disparities at each of the decision
Page 13.
making stages using unadjusted measures first and then adjusted
measures.
1) Unadjusted Raclal Disparities at Successive
Stages in the System
As a whole the data reflect disparities in decision-
making at the prosecutorial plea bargaining stage and "the
prosecutorial decision to seek a penalty trial following a
conviction” (Report, p. 119).
2) Racial Disparities Estimated with Multiple
Regression Analyses After Adjustment for Non-
Racial Background Variables
These procedures resulted in somewhat mixed resuls.
There are racial disparities for victims when "prosecutors
seek the death penalty and the juries decide to impose it."
(Report, p. 120.) However, black defendants maintain beneficial
treatment in plea bargaining and at the gullt trial.
3) Supplemental Regression Analyses of the Prosecutorial
Decision to Seek and the Jury Decision to Impose
Death Sentences
The authors assert that victim's race has a significant
effect on treatment by prosecutors and juries. The defendants'
race is not shown to have an influence on jury decision making,
however.
4) Logistic Regression Analysis
The results of these additional analyses of the two
prosecutorial and jury decision making steps support the above
results and again point to "strong race of victim and race of
defendant disparities in the rates at which prosecutors seek the
death penalty and clear race of victim disparities in jury
sentencing decisions.” (Report, pp. 124-125.)
Page 14.
5.) Racial Disparities Among High Risk Cases With
Specific Statutory Aggravating Factors
The authors dwell only on the 20% of the cases most
likely to receive a death penalty. They examine the disparities
across different statutory aggravating factors and the results
indicate huge victim disparities "in the prosecutor's plea
agreement and penalty trial choices." (Report, p. 125.)
Vili. The Impact of Racial Disparities on the Size
and the Racial Characteristics of the Death
Row Population
The authors, taking into consideration the statistics
which have been shown so far,construct a hypothetical death row
population, the result of an even handed decision making process.
The results indicate that "the identity of black defendants on
death row" could change considerably if a fair and equitable
decision making process were instituted.
IX. The Impact of Trial Court and Appellate Review
of Death Sentences on the Racial Disparities
Observed in the Georgia Capital Charging and
Sentencing Process
The authors take into consideration the fact that death
sentences are sometimes vacated by "post-sentence judicial review."
They reanalyze the data from the PRS and CSS to account for these
facts, however "in only one analysis (jury sentencing decisions
in the CSS) did the race of victim disparity entirely disappear."
{Report, p. 133.)
Page 15.
X. Racial Disparities After Adjustment For the Date of Sentencing
The authors test whether the transition between pre- and
post-Furman cases had an impact on the levels of racial disparity.
However, the variation between periods is shown to be minimal.
XI. Racial Disparities in Death Sentencing Rates After Adjusting
for Geographic Differences in Death Sentencing Rates
The reader is presented with the possibility that geo-
graphic differences in sentencing may have skewed the results.
The authors conduct analyses across the different circuits and
along rural and city lines. The data support:-the theory that
"illegitimate" factors, ice. race, are contributing to disparities
in death sentencing.
XII. Racial Disparities in Death Sentencing Rates After
Adjustment for Penalty Trial Sentencing Decisions
by Judges
In some penalty trial cases the judge conducts the
sentencing decisions. The authors. test out the possibility that
this may have distorted the data analyses. After a re-analysis,
little effect on racial disparities is found.
JOHN R. MYER 1515 HEALEY BUILDING
57 FORSYTH ST., N. W.
ROBERT H. STROUP ATLANTA, GEORGIA 30303
GARY FLACK
404/522-1934
ATTORNEYS AT LAW
July 11, 1983
John Charles Boger, Esq.
Suite 2030
10 Columbus Circle
New York, New York 10019
Re: Warren McCleskey v. Walter D. Zant
Civil Action File No. CB1l-243A
Dear Jack:
Please find Request for Payment form with statement
attached for the deposition of Dr. J. L. Katz on
Jane 30, (1983 and July 1, 1983.
Your expeditious attention to this request will be
appreciated.
Very truly yours,
Cel—
Robert H. Stroup
RHS/1
Fricls.
SYRACUSE UNIVERSITY
COLLEGE OF LAW / Center for Interdisciplinary Legal Studies
ERNEST I. WHITE HALL / SYRACUSE, NEW YORK 13210
(315) 423-4108
June_l, 1933
Jack Boger Esg
Legal Defense Fund
10 Columbus Circle
New York, N.Y. 10019
Dear Jack,
Enclosed is a copy of a nearly final draft of our
article on proportionality review in Georgia. Your support,
thoughts and encouragement on this project during the
last year have been a big help.
I have been reviewing the budget for the balance of
the Ceorgia project. On the basis of the responses I have
been getting to the draft, that I sent to you, Sam and
Charles, I am making the final set of computer runs. 1
anticipate that my further out of pocket costs to bring
thi 6Trt>tQ completion will require an additional $7,000
to $8,000.00.) If there are sufficient funds to meet these
o Tease send me a check at your convenience.
I hope to be talking to you soon.
Sincerely,
Doe
DB/ckb
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FEDERAL EXPRESS LOCATION. SHOWN [J RETURN SHIPMENT : |
IN SERVICE GUIDE.
[J THRO PARTY, AGT/PRO ADVANCE DESTINATION
DELIVER
ri 0 cre. To0eL. [1 cHG. TO HOLD
SATURDAY SERVICE REQUIRED
See Reverse (Extra charge applies for delivery.)
RESTRICTED ARTICLES SERVICE (P-1 and
Standard Air Packages only, extra charge)
SSS (Signature Security Service
required, extra charge applies)
DRY ICE
TOTAL STREET ADDRESS
b
C1.REGULAR STOP
[J ON-CALL STO
0 FEC. LOC
TOTAL CHARGES
14
OTHER SPECIAL SERVICE
Federal Express Corporation Employee No.
? 3 je We : iF
RECEIVED BY: (Signature)
ind PART
#2041730700
DATE/TIME For Federal Express Use.
ry Le
F.E.C. EMPLOYEE NUMBER FEC-S-0700 D/0/B | DATEMIMERECEIVED
/ i REVISION DATE 78 4 10/81 GBF
PRINTED U.S.A.
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}, In tender"'g the shipment for carria911 the sr pper agrees tc, these TfRMS AN..,
OONO TIONS OF CONTRACT which no agent or employee of e part,es T>ay �lier
and tMt his Federal Express Atrbill ,s t-lON-NEGOTIABLE and ha� '>eer nr i:-ared
by h•ln or on his behalf by Federal Express
2 The shipper agrees that carriage ,s sub1ect to te, . ,.and con<.• c:,ps c:,t CJI act
statedJlere,n and those terms and cond ons wr ch are also •ated the "lost •e
cent Federal Expr�ss Service Gu1d"?, which 1s available f0r inspec• en ann mcor
porated into this contract by reference
3 In tendering the shipment for carnage THE SHIPPER WARRANTS t at •�e ship
ment is packaged adequately to protect the enclosed gootls ard to , sure � •
transrortat,on with ordinary care and handli! g, and that each package ,s ap
propriately la!Jeled a:hd ,sin good order (except as r•pted) tor carriage s spec1fiect
4. When the destmation of the shipment ,s not w,t•in the Federa Exp,.,ss a,r ter
mInal zone as listed in the most recent Federal Express Setv1ce Guide, Fednnl Ex
press makes �a corim,tment with •espect • J II e of delivery o• th sh,pml)r•
5 In the event of ,nternat,onat carriage of any shipmen• her under !he rules
re,ating I<:' liab1l1ty established by the Co�v nt,on for the Un •,cat, , of Certain
Rules Relatmg to lnternat1cna1 ':arr age by Air signe1 at War>aw PolanQ o Or:• >ber
12, 1929 shall apply to the carnage insofar as t e same ,s governed thereby
6 Federal Transportation Excise Tax Pursuar• •o Secf,or 4271 of the lnte•nal
Revenue Code. a 5°0 tax on air tra1 sporta•,on port,or of th service and the ac•
cessonat services related thereto ts ,ncluded w1thIn the bas1r rl:11•�
7 D,E:CLARED VALlJE AND LIMITAflON OF LIABILITY THE LIABILITY OF
FEDERAL EXPRESS IS LIMITED TO THE SUM OF $100.00 un ess a higher value s
declared tor carriage nere,n and a greater charge paid at IM rate ol 30¢ per $100 00
value. In the case of P· 1 service the maximum higher der arec< value ., $5000.00. In
•he case of Couner Pak or Standard Air Serv ce !he,,. ax,muri higher declared value
,s $2,000.00 In the case Of Ove1n1ght Letter, the maximum c gher cte ed val e s
$500 00 Shipments containing ,terns c extraOrd,nary vah e includir g but not
limited to, drawings, paintings, scu Atures. porcelain c ram C$ furs Jewelry, fur
•rimmed clothing, watches, gems stones, oney bull on ur ency o ns tract;ng
stamps or other extraordinary valuable items, are mite to maxim declar""d
value of $500.00. In the case at P-1 service when multiple sh pments are placed,:,n ,,
single a,rb,11 but the shipper has not spec1f1ed the declared value of each 1nrl1v1dual
�h•priient the declared value for each Ind1v dual shipment w,II e determined by
dividing the total declared value on th rhtll �Y the number of sh pme ts nd �ated
on the airb,11, sub1ect to a $100 00 rein, um declareC: value p�r 1nd1viqual sh pment
n the case of Standarc:, Air Service, when the shipment con ,sts of two or mo,,.
pieces. the declared value for each piece w II be determined by div,d,ng e derare
value on the affb�I by the number of rIeces ,, •re sh,pme The IIabl ,ty of Federa,
Express Is l1m1ted to the declaI d valu. of the hip, ent or • e a,nount al •ass or
damag& actuJlly sustained, whIch<1ver ,s ower
Federal Express ,s not l1abl for oss d mage '1Alay m ,-del,v ry or �or d ivery
not caused by ,ts own neglIgeroe: or any IOS$ damage delay mis- eltvery or non•
delivery caused by the act default or 01 ,ss,ar of e sh, per on$Ignee or ,ry
other party who claims interest in thP. sh,pmer• the nature of the shIpme 01 any
defect, characteristic of 1nhe1ent v•ce t�erel')f v ola• on by• e sh1pper or c-, s,g�e
ol any ol the condII ions of contract co, ta,ned , this airbll " in he F e<1eral f�press
ded
n "Qr
y FEDERAL EXPRESS St:tA�L�OT tlE �tABLE IN ANY EVENT FOR ANY SPECIAL,
NCIDENTAL OR CONS au NTIA� DAMAGE'S, INCLUDING BUT NOT LIM'rl'ED TO
LOSS OF PROFITS OR tNCOME WHETliER OR NOT FEDERAL EXPRESS HAD
KNOWLEDGE THAT SUCli DAMAGES M GliT B INCURRED.
LAIMS WRITTEN NOTICE OF LOSS DUE TO DAMAGE SHORTAGE OR
DE AV MJST BE R BY TliE SH PPER WITHIN 15 DAYS AFTE8 T�E
DE !VERY OF TH "IT WR TTEN NOT C OF LOSS OUE TO NON•
D HIPPER WITHIN 90 DAYS AFTER AC-
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