Trial Proceedings Transcript Vol. 2
Public Court Documents
August 9, 1983
213 pages
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Case Files, McCleskey Legal Records. Trial Proceedings Transcript Vol. 2, 1983. ae7c269c-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4d587e24-4d67-45ac-a65c-9667f3406714/trial-proceedings-transcript-vol-2. Accessed May 12, 2025.
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2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE NORTHERN DISTRICT OF GEORGIA
4 ATLANTA DIVISION
. ii
& | WARREN MCCLESKEY. ) DOCKET NO. CS81-2434
:
PLAINTIFF, ) ATLANTA, GEORGIA
2 ~\G= ) AUGUST 9. 1983
> | WALTER D. ZANT, WARDEN, s
10 )
j )
11 DEFENDANT. )
ih | ---
13 VOLUME II
14 _ TRANSCRIPT OF PROCEEDINGS
15 | BEFORE THE HONORABLE J. OWEN FORRESTER, UNITED STATES DISTRICT
16 | JUDGE.
18 APPEARANCES OF COUNSEL:
|
|
|
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19 | FOR THE PLAINTIFF: JOHN CHARLES BOCER: TIMOTHY K. FORD
AND ROBERT H. STROUP. |
20 |
21 | FOR THE DEFENDANT: MARY BETH WESTMORELAND AND SUSAN V.
BOLEYN. |
22 |
i
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JIM PUGH
24 CFFICIAL COURT REPORTER
ROOM 2367, 75 SPRING STREET, 3S.W.
23 ATLANTA, GEORGIA 30303
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Hl TNESSES
DIRECT CROSS
WITNESSES FOR THE PLAINTIFF:
DAVID C. BALDUS 220
EDWARD RAYMOND GATES 323
WITNESSES FOR THE DEFENSE:
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DOCUMENTARY EVIDENCE
MARKED RECEIVED
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294 293
296 298
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325 327
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(ATLANTA, FULTON COUNTY, GEORGIA3 AUGUST 9, 1983,
IN OPEN COURT.)
THE COURT: ALL RIGHT, MR. BOGER. YOU MAY PROCEED.
MR. BOGER: THANK YOU, YOUR HONOR.
DAVID C. BALDUS,
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT-D)
BY MR. BOGER:
Q. PROFESSOR BALDUS., AT THE CLOSE OF YOUR TESTIMONY ON
YESTERDAY AFTERNOON, I BELIEVE THE QUESTION HAD JUST ARISEN
ABOUT WHERE THE SUPREME COURT RUESTIONNAIRES WERE ACTUALLY
FILLED OUT, WHETHER IN GEORGIA OR IN IOWA.
CAN YOU TELL THE COURT WHERE THAT TOOK PLACE?
A. THE QUESTIONNAIRES WERE COMPLETED AT THE UNIVERSITY OF IOWA
COLLEGE OF LAW DURING THE 1979, 1980, ACADEMIC YEAR.
. THE MATERIALS THAT FRED KYLE AND HIS ASSOCIATES PUT
TOGETHER IN GEORGIA. WERE SHIPPED BACK TO IOWA. AND I ENGAGED
LAW STUDENTS AT THE UNIVERSITY OF IOWA TO DO THE ACTUAL CODING
OF THE QUESTIONNAIRES.
Q. WHEN WE SPEAK OF THE WORD "CODING," YOU MEAN BY THAT SIMPLY
WHAT?
A. THE STUDENTS WOULD READ OVER THE SUMMARY MATERIALS THAT
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WERE SENT BACK, AND THE SUPREME COURT OPINION, AND THE YORK
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2 MATERIALS, AND ON THE BASIS OF THAT. MAKE A DETERMINATION OF HOW
3 EACH QUESTION IN THE QUESTIONNAIRE SHOULD BE ANSWERED. THEN
4 THEY WOULD ENTER THE APPROPRIATE ANSWER FOR EACH QUESTION.
3 Q. THE MATERIALS YOURE SPEAKING OF ARE THE MATERIALS WE
é DISCUSSED YESTERDAY IN DB-29 THROUGH -33 THAT WE DISCUSSED
® 7 YESTERDAY, IS THAT CORRECT, OR SIMILAR MATERIALS FOR EACH CASE?
Se Ae YES.
9 A. LET ME ASK A LITTLE, THEN, THE INFORMATION WAS COLLECTED.
10 AS IT WERE, IN THIS FORM IN GEORGIA, AND THE INFORMATION WAS
11 ACTUALLY CODED ONTO THE SUPREME COURT QUESTIONNAIRE IN IOWA?
12 A. YES.
13 A. HOW DID YOU SELECT THE STUDENTS TO DO THE CODING?
14 Ae 1 SELECTED THE STUDENTS ON THE BASIS OF THEIR INTELLIGENCE
15 AND WILLINGNESS TO DO DIFFICULT DETAIL WORK THAT WOULD REQUIRE
16 AN INTENSE AMOUNT OF CONCENTRATION.
17 EACH OF THESE STUDENTS. THEY WERE LAW STUDENTS.
18 GENERALLY SECOND AND THIRD YEAR LAW STUDENTS, ALL OF THEM HAD
HAD A BASIC COURSE IN CRIMINAL LAW AND SEVERAL OF THEM HAD HAD
_-
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20 ADVANCE COURSES IN CRIMINAL LAW.
21 I PICKED THEM ON THOSE CRITERIA.
22 a. WERE THEY PAID OR WERE THEY VOLUNTEERS?
23 A. THEY WERE PAID THE MINIMUM WAGE. THAT IS WHAT THE LAW
24 STUDENTS WERE PAID AT THAT TIME.
23 Wd. WAS THERE ANY TRAINING GIVEN TO THEM BEFORE THEY BEGAN
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CODING THESE QUESTIONNAIRES?
A. YES. CHARLES PULASKI.» WHO WAS AT THE UNIVERSITY OF IOWA AT
THAT TIME. AND I. GAVE THESE STUDENTS AN EXTENSIVE BRIEFING ON
THE LAW UNDERLYING THE STUDY. ON THE PURPOSES OF THE STUDIES,
AND ALSO WE HAD THE STUDENTS RUN THROUGH DRY RUNS OF THE
QUESTIONNAIRES. AND WE REVIEWED THEIR WORK. AND THEN --
@. LET ME ASK YOU TO CLARIFY THAT. WHAT DO YOU MEAN BY DRY
RUNS?
A. THAT IS. WE WOULD ASK EACH ONE OF THEM TO PREPARE A
QUESTIONNAIRE AND I WOULD CHECK QUESTIONNAIRE AGAINST THE
ORIGINAL MATERIALS THAT THEY WERE WORKING FROM. AND AFTER THAT
HAD BEEN DONE. AND IT APPEARED TO ME THAT THE STUDENTS HAD A
SUFFICIENT GRASP OF WHAT THEY WERE ABOUT, WE THEN COMMENCED, AND
THE STUDENTS WOULD BE ASSIGNED A FILE AND A QUESTIONNAIRE AND
THEN THEY WOULD COMPLETE IT.
Q. WAS THERE ANY CHECKING OF THEIR WORK, ONCE IT WAS
COMPLETED? |
A. YES. THE CHECKING WAS DONE BY ME ON A SPOT BASIS. I WOULD
CHECK EVERY FIFTEENTH OR TWENTIETH QUESTIONNAIRE THAT WAS DONE.
BUT 1 HAD A STUDENT WHO EMERGED AS THE MOST SKILLFUL AND ABLE,
HIS NAME WAS RALPH ALLEN, WHO BECAME MY SUPERVISOR AND HE WOULD
CHECK EACH ONE OF THE QUESTIONNAIRES AGAINST THE UNDERLYING
FILE.
IN ADDITION. GUIDANCE WAS PROVIDED THROUGH REGULAR
MEETINGS BETWEEN ME AND THE STUDENTS. AT THE OUTSET WE MET
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EVERY WEEK, AND THE STUDENTS WOULD COME AND PRESENT QUESTIONS.
PROBLEMS OF INTERPRETATION THAT THEY MIGHT BE HAVING WITH ANY OF
THE VARIABLES. AND THEN WE WOULD DISCUSS AMONG OURSELVES WHAT
THE DIFFERENT APPROACHES WERE THAT WERE TAKEN TO THAT. AMD AT
EACH POINT ALONG THE WAY, I WOULD HEAR WHAT PEOPLE WERE DOING
AND DECIDE WHAT THE STANDARD APPROACH WAS. AND THAT‘S THE POLICY
THAT WE WOULD ADOPT.
Q. PROFESSOR BALDUS, IF You DISCOVERED DISCREPANCIES BETWEEN
THE WAYS IN WHICH VARIOUS CODERS HAD INTERPRETED THE QUESTION OR
DONE CODING DURING THESE MEETINGS -— HOW OFTEN WERE THESE
MEETINGS HELD?
Ae AT THE BEGINNING THEY WERE HELD EVERY WEEK, BUT THIS
PROJECT OF CODING THE QUESTIONNAIRES WENT ON THROUGHOUT THE FALL
INTO THE NEXT SUMMER. 1980. AND IF -- I“M SORRY.
a. IM SORRY. I INTERRUPTED MY OWN QUESTION WITH ANOTHER
QUESTION. BUT IF YOU DISCOVERED DISCREPANCIES, HOW WERE THEY
DEALT WITH?
A. IF IT TURNED OUT THERE WAS A DISCREPANCY IN THE WAY THE
CODERS WERE TREATING A QUESTION, THEY WOULD GO BACK, AFTER WE
RESOLVED THE ISSUE, THEY WOULD GO BACK AND MAKE SURE THAT THE
QUESTIONNAIRES THAT HAD BEEN CODED WERE CONSISTENT WITH THE NEW
RULE. IT WASN‘T THAT BIG OF AN ASSIGNMENT, BECAUSE ANY ONE
VARIABLE WOULD APPEAR NORMALLY TO BE A QUESTION IN A SMALL
NUMBER OF CASES. AND STUDENTS WOULD GO BACK AND SIMPLY CHECK
THOSE VARIABLES ON THE CASES THEY HAD CODED AND MAKE THEM ALL
BALDUS - DIRECT
CONFORM TO THE RULE.
a. BY THAT PROCEDURE, WOULD EVERY QUESTIONNAIRE CODED
EVENTUALLY BE CORRECTED OR TRANSFORMED TO THE SAME CODING
INSTRUCTIONS THAT YOU DEVELOPED OVER TIME?
Fra YES: THAT WAS THE OBJECTIVE OF THE PROCEDURE.
Ql. ALL RIGHT. YOU TESTIFIED EARLIER YESTERDAY THAT THE
PROCEDURAL REFORM STUDY INVOLVED MORE THAN ONE DATA GATHERING
OCCASION, THAT YOU HAD STUDENTS GO IN THE FIELD IN GEORGIA IN
1979. WHEN WAS THE NEXT OCCASION IN WHICH PEOPLE CAME TO
GEORGIA TO COLLECT ACTUAL DATA?
Fe IN 1980, I HIRED TWO PEOPLE TO WORK FULLTIME ON THIS
PROJECT TO CODE QUESTIONNAIRES IN GEORGIA THROUGHOUT THE ENTIRE
FALL SEMESTER.
QR. AND WHO WERE THOSE PEOPLE?
Fre THEY WERE EDWARD GATES. AND CATHY CHRISTIAN.
QR. HOW DID YOU LOCATE THOSE INDIVIDUALS?
A. THROUGH FRED KYLE“S CONTACTS IN GEORGIA, HE HAD LEARNED
THAT NORTHEASTERN UNIVERSITY HAS AN EXTERN PROGRAM WHEREBY
STUDENTS TAKE A SEMESTER OFF FROM THEIR ACADEMIC WORK TO GET
PRACTICAL EXPERIENCE, AND I THOUGHT THAT MIGHT BE A GOOD SOURCE
OF PERSONNEL FOR THIS JOB. SO I CALLED NORTHEASTERN AND LEARNED
THAT CATHY CHRISTIAN WAS WORKING AT NORTHEASTERN. AND WAS
INTERESTED IN THIS OPPORTUNITY AS PREPARATORY TO HER GOING TO
LAW SCHOOL. AND I HIRED HER ON THE BASIS OF CHECKING HER
REFERENCES, AND THEN SHE REFERRED ME TO EDWARD GATES. AND I
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HIRED HIM SUBSERUENTLY. AFTER CHECKING HIS REFERENCES.
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2 |@. WHAT. WHAT WERE THE CRITERIA FOR SELECTION?
5 |A. THE CRITERIA WERE THE SAME. THAT IS. A RECORD OF WORK
a | EXPERIENCE WITH HIGH RECOMMENDATIONS FOR DILIGENCE. ABILITY TO
s | GET ALONG, WILLINGNESS TO WORK LONG HOURS. AND METICULOUS WORK.
4 |@. HOW DID YOU CHECK THE REFERENCES OF THESE INDIVIDUALS?
® 2 |a. I CALLED THE FORMER EMPLOYERS’ OF THE TWO PEOPLE AND THEY
8 | BOTH RECEIVED RAVE REVIEWS FROM THEIR FORMER EMPLOYERS.
9 |@. YOU INDICATED THAT CATHY CHRISTIANSON WAS WORKING AT
10 | NORTHEASTERN UNIVERSITY.
11 DO YOU RECALL IN WHAT CAPACITY?
12 |A. YES. ACTUALLY, CATHY CHRISTIAN WAS HER NAME.
13 |@. FORGIVE ME.
14 |A. SHE WAS IN AN ADMINISTRATIVE CAPACITY, THE PRECISE NATURE
1S | OF WHICH I DONT RECALL.
16 Q. DO YOU REMEMBER WHAT ED GATES” EMPLOYMENT HAD BEEN?
17 A. YES. ED WAS WORKING IN A MEDICAL RESEARCH FACILITY, I
18 BELIEVE, AT YALE UNIVERSITY AT THE TIME.
pe 19 a. DID YOU OBTAIN BACKGROUND INFORMATION BEYOND THAT ON THEIR
20 RESUMES OR INFORMATION ABOUT WHERE THEY HAD BEEN UNDERGRADUATES?
21 A. CERTAINLY, 1 HAD RECEIVED COPIES OF THEIR RESUMES. AND THEY
22 BOTH HAD GOOD ACADEMIC BACKGROUNDS. AND THEN I PURSUED -— THE
23 THING THAT WAS MOST IMPORTANT TO ME WAS WHAT KIND OF RECORD THEY
24 HAD FOR DOING DETAIL WORK UNDER TIME PRESSURE, AND DIFFICULT
25 CIRCUMSTANCES, WHICH I KNEW THEY WOULD BE ENCOUNTERING WHEN THEY
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UNDERTOOK THIS WORK.
(r J8 AFTER YOU HAD IDENTIFIED, THEN. THESE WORKERS FOR THE 1980
EFFORT THAT YOU WERE GOING TO UNDERTAKE TO COLLECT DATA IN
GEORGIA. WERE THESE EMPLOYEES GIVEN ANY TRAINING FOR THE
RESPONSIBILITIES THEY WERE TO UNDERTAKE?
A. YES: IN THE LATTER PART OF AUGUST, I BELIEVE IT WAS. IN
1980, I CAME TO GEORGIA AND SPENT FOUR DAYS WORKING WITH ED AND
CATHY. WE MET IN THE OFFICES OF THE PAROLE BOARD WHERE THE, NO,
CORRECT THAT. IT WAS IN THE OFFICE OF BOTH THE PAROLE BOARD AND
OF THE SUPREME COURT. THEY WERE GOING TO BE COLLECTING DATA IN
BOTH PLACES. I FAMILIARIZED THEM WITH THE DOCUMENTS THEY WOULD
BE WORKING WITH IN BOTH PLACES. AND THEN WE BEGAN TO DO SOME DRY
RUNS, AGAIN A DRY RUN IS A PRACTICE RUN, TO FAMILIARIZE THEM
WITH THE QUESTIONNAIRES.
BEFORE THEY CAME TO GEORGIA, I HAD SENT EACH ONE OF
THEM A COPY OF ABSTRACTS OF CASES, TWO CASES, AND HAD REQUESTED
EACH ONE TO COMPLETE THE QUESTIONNAIRE AND STUDY IT IN DETAIL
BEFORE THEY CAME, WHICH THEY DID. AND UPON THEIR ARRIVAL, WE
WENT OVER THEM. IN FACT, THEY HAD BEEN SENT TO ME. IS MY
RECOLLECTION, AND I HAD REVIEWED WHAT THEY HAD DONE BEFORE I GOT
THERE SO WE COULD IMMEDIATELY FOCUS ON THE AREAS THAT SEEMED TO
BE PRESENTING PROBLEMS.
WE THEN STARTED TO GO THROUGH THE ACTUAL CASES IN THE
SUPREME COURT AND IN THE PAROLE BOARD AND THEY WOULD PREFARE THE
CODING FOR THE CASES. AND THEN I WOULD CHECK THEM AGAINST THE
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BALDUS - DIRECT
UNDERLYING DOCUMENTS. AND THIS IS WHAT WE DID FOR FOUR DAYS.
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2 Q. ALL RIGHT. DID YOU AT ANY TIME GIVE THEM WRITTEN
3 INSTRUCTIONS ON HOW TO PROCEED?
4 Fre YES, I DID.
3S THE EXPERIENCE I HAD WITH THE STUDENTS AT IOWA HAD
é RESULTED IN A SERIES OF DECISION RULES THAT THEY WOULD USE TO
® 7 RESOLVE ISSUES INVOLVING CODING THE SUPREME COURT QUESTIONNAIRE.
8 @. LET ME JUST ASK YOU TO CLARIFY. BY DECISION RULES YOU MEAN
v WHAT?
10 A THAT IS. IF WE FOUND THAT CERTAIN ISSUES AROSE WITH RESPECT
11 TO CODING PARTICULAR VARIABLES AND WHEN THOSE ISSUES AROSE, WE
12 WOULD SETTLE THEM IN THE MANNER I DESCRIBED EARLIER. AND WE
13 WOULD COMMIT THOSE RULES TO WRITING.
14 WE HAD THOSE IN A ROUGH NOTEBOOK FOR THE USE OF THE |
15 STUDENTS IN IOWA, BUT I THOUGHT IT WOULD BE DESIRABLE TO |
16 INTEGRATE THAT MATERIAL. TO CREATE A RESTATEMENT. IF YOU WILL,
17 OF THE RULES THAT HAD DEVELOPED EARLIER. AND I SENT THOSE TO
18 CATHY AND ED.
(~ 8 WHAT WAS THE PURPOSE OF MEMORIALIZING THOSE RULES?
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20 A TO MAINTAIN CONSISTENCY IN THE CODING BETWEEN THE WORK THAT
21 HAD BEEN DONE IN IOWA AND THE WORK THAT WAS TO BE DONE IN
22 GEORGIA.
23 Gl. LET ME ASK YOU. PROFESSOR BALDUS, TO TURN TO WHAT”S BEEN
24 MARKED AS DB-34 FOR IDENTIFICATION, AND I“LL ASK YOU IF YOU CAN
23 IDENTIFY THAT DOCUMENT?
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BALDUS — DIRECT
A. YES, DB-34 IS A MEMO DATED AUGUST 13. 1980, FROM ME TO
CATHY CHRISTIAN AND ED GATES, AND THE SUBJECT WAS THE COMPLETION
OF THE QUESTIONNAIRES ON GEORGIA SUPREME COURT CASES.
@. IS THAT THE SET OF CODING INSTRUCTIONS THAT YOU INDICATED
EARLIER YOU HAD MEMORIAL IZED?
A. YES, IT IS.
a. IF YOU WOULD, TELL ME BRIEFLY WHAT THIS DOCUMENT CONTAINS,
WHAT ITS STRUCTURE 1S?
A. IT DESCRIBES FIRST THE SOURCES OF INFORMATION THAT THEY
WOULD BE DEALING WITH IN THE CODING OF THE SUPREME COURT
QUESTIONNAIRES.
IT MAKES REFERENCE TO THOSE MATERIALS IN SOME DETAIL.
THEN IT PROVIDES AN OVERVIEW OF THE SOURCES OF DATA
WITH RESPECT TO THEIR RELIABILITY FOR THE PURPOSES OF OUR STUDY.
THAT 1S. NOT NECESSARILY THE RELIABILITY BUT THE HIERARCHY OF
SOURCES.
PAGE 3 OF THIS, I MENTIONED. IF THERE ARE ANY
INCONSISTENCIES BETWEEN VARIOUS SOURCES OF INFORMATION, THEY
SHOULD FOLLOW THE ORDER LAID OUT HERE WHERE THE SUPREME COURT
OPINION TAKES THE HIGHEST PRIORITY AND THE DEPARTMENT OF
CORRECTIONS TAKES THE LOWEST PRIORITY.
THEN IT GETS DOWN TO MORE SPECIFIC QUESTIONS ABOUT THE
| CODING OF UNKNOWNS, THE CODING OF NOT APPLICABLES AND SPECIFIC
RULES ON INDIVIDUAL VARIABLES WHICH IS THE SUBJECT MATTER OF THE
BALANCE OF THE PAPER.
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QA. WERE THERE ANY ATTEMPTS MADE BEYOND THE TRAINING THAT YOU
HAVE DESCRIBED TO STAY IN TOUCH WITH OR OVERSEE THE DATA
COLLECTION EFFORT IN 19807
A. YES.
QA. CAN YOU DESCRIBE THOSE FOR THE COURT?
A. YES. DURING THE FIRST MONTH OR SO OF THE OPERATION. I HAD
A DAILY CONSULTATION WITH ED AND CATHY —— IT WAS USUALLY WITH
ED, HE BECAME THE SPOKESMAN FOR THE TWO, AND WE HAD A DATE EVERY
AFTERNOON AT FOUR 0“CLOCK ON THE TELEPHONE FROM EITHER THE
PAROLE BOARD OR THE ARCHIVES OF THE STATE OF GEORGIA HERE IN
ATLANTA, AND HE WOULD RAISE ANY ISSUES THAT THEY WERE
CONFRONTING AT THAT TIME. AND WE WOULD DISCUSS THEM AND THEN I
WOULD DECIDE WHAT APPROACH WOULD BE TAKEN WITH RESPECT TQ ANY OF
THESE ISSUES.
AND AS TIME WENT ON, THE NUMBER OF ISSUES GREW LESS. AS
IS THE GENERAL EXPERIENCE IN A PROJECT OF THIS TYPE.
MY RECOLLECTION IS THAT THE LONGEST PERIOD OF TIME NEAR
THE END THAT I WENT WITHOUT A TELEPHONE CONSULTATION WITH THEM
WAS ON THE ORDER OF FOUR OR FIVE DAYS, FOUR OR FIVE WORKING
DAYS.
Ra LET ME ASK YOU IF YOU HAD A DISCUSSION WITH ED GATES ABOUT
A CODING QUESTION, AND YOU DISAGREED WITH HIS JUDGMENT ON IT,
HOW WAS THAT RESOLVED?
A. WELL, WE NORMALLY DIDN‘T HAVE DISAGREEMENTS. HE WOULD POSE
THE ISSUE AND STATE THE REASONS FOR THE POSSIBLE DIFFERENCE OF
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INTERPRETATION AND THEN I WOULD DECIDE WHAT WE SHOULD DO.
Q. AND UPON YOUR DECISION. WHAT WOULD HAPPEN? WERE THERE ANY
INSTRUCTIONS?
Adi YES, IT WAS TO FOLLOW THE RULE AND TO CONFORM ANY OF THE
PRIOR QUESTIONNAIRES THAT WERE CODED CONSISTENT WITH THE RULE.
A. SO ALL PREVIOUS QUESTIONNAIRES THAT HAD BEEN CODED IN ANY
OTHER FASHION WERE RECHECKED. IS THAT CORRECT?
A. THAT WAS MY INSTRUCTION, THAT’S CORRECT.
Q. I NOTE FROM DB-28A. WHICH IS REPLICATED IN THE BOOK AS
DB-28, THAT IN 1980, THE INSTRUMENT USED FOR CODING BY ED GATES
AND CATHY CHRISTIAN WAS ACTUALLY MORE THAN ONE INSTRUMENT, IT
WAS IN FACT TWO INSTRUMENTS. IT SAYS “SUPREME COURT
QUESTIONNAIRE, PROCEDURAL REFORM STUDY."
TO WHAT DOES THAT REFER?
A. THE CASES CODED BY CATHY AND ED WERE DONE WITH TWO
INSTRUMENTS.
THERE WERE 87 CASES WHICH ARE LABELED "B" ON DB-23A,
WHERE THE CASES WERE CODED WITH BOTH THE SUPREME COURT
QUESTIONNAIRE AND ANOTHER QUESTIONNAIRE. CALLED THE PROCEDURAL
REFORM STUDY QUESTIONNAIRE.
Gl. THAT WAS A SEPARATE DATA COLLECTION INSTRUMENT?
A. YES.
A. WHEN WAS THAT DEVELOPED?
A. THAT WAS DEVELOPED DURING THE 1979-1980 ACADEMIC YEAR.
Qe BY WHOM?
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Fre BY ME. AND CHARLES PULASKI, AND GEORGE WOODWORTH.
Qo. FOR WHAT PURPOSE DID YOU DEVELOP THIS ADDITIONAL
RUESTIONNAIRE?
A. WELL, WE HAD LEARNED FROM OUR EXPERIENCE WITH FRED KYLE’S
EFFORTS IN 1979 THAT THE ORIGINAL QUESTIONNAIRE HAD A FORMAT
THAT MADE IT EXTREMELY TIME CONSUMING TO COMPLETE. AND WE
WANTED TO SIMPLIFY THE FORMAT FOR THE PURPOSE OF SPEEDING UP THE
CODING PROCESS.
ONLY IN THAT WAY, I BELIEVE. COULD WE OBTAIN A
REASONABLE SAMPLE SIZE WITH THE RESOURCES THAT WE HAD AVAILABLE.
IN ADDITION. THERE WERE SOME SECTIONS OF THAT
QUESTIONNAIRE THAT WE FOUND WE WERE UNABLE TO COMPLETE. FOR
EXAMPLE, YOU’LL NOTE THE ORIGINAL QUESTIONNAIRE ——
Gl. WHICH IS --
A. WHICH IS AT DB-27, THAT WITH RESPECT TO THE AGGRAVATING AND
MITIGATING FACTORS OF THE CASE, THERE IS A QUESTION THAT FOLLOWS
EACH SUBSTANTIVE QUESTION THAT ASKS WHETHER THE SENTENCING JURY
WAS AWARE OR UNAWARE OF THAT INFORMATION.
WE FOUND THAT IT WAS NOT FEASIBLE. GIVEN THE DOCUMENTS
THAT WE HAD AVAILABLE TO US IN THE SUPREME COURT. TO MAKE THOSE
SORTS OF DIFFERENTIATIONS AND WE DROPPED THAT MATERIAL FROM THE
SUBSEQUENT QUESTIONNAIRE.
ALSO THERE WAS MATERIAL IN THIS ORIGINAL RUESTIONNAIRE
CONCERNED WITH SUCH THINGS AS VOIR DIRE THAT WE DECIDED TO
DELETE FROM THE QUESTIONNAIRE. IT WAS OUR JUDGMENT THAT THE
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BALDUS - DIRECT
MATTERS OF PRINCIPAL CONCERN TO US WERE THE LEGITIMATE
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2 AGGRAVATING AND MITIGATING FACTORS OF THE CASE. SO PROCEDURAL
3 MATTERS OF THAT SORT WERE STRICKEN FROM THE SUBSEQUENT
4 QUESTIONNAIRE.
5S IN ADDITION. WE FOUND THAT THERE WERE DETAILS IN THE
é CRIGINAL QUESTIONNAIRE THAT WERE NOT NECESSARY FOR THE PURPOSES
» 7 OF DEFINING GROUPS OF SIMILAR CASES.
8 I CONCLUDED —
? Q. CAN YOU GIVE ME SOME EXAMPLES OF THAT?
10 Ae CERTAINLY. I CONCLUDED THERE WAS EXCESS OF DETAIL IN THE
11 INSTRUMENT.
12 IF YOU COULD TURN, YOUR HONOR. TO THE SUPREME COURT
13 QUESTIONNAIRE, YOU WILL SEE ON PAGES --
14 THE COURT: WHATS THE NUMBER?
15 THE WITNESS: THAT’S DB- —-
16 MR. BOGER: 27.
17 THE COURT: ALL RIGHT.
18 THE WITNESS: ON PAGE 21 OF THAT QUESTIONNAIRE, IT
BEGINS A SECTION ON THE CAUSE OF DEATH. AND IT IS IN EXTENSIVE
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20 DETAIL AND GOES ON FOR A SUBSTANTIAL NUMBER OF PAGES. AND WHEN
21 IT GETS INTO THE QUESTION OF SHOTS. HOMICIDE BY FIREARMS, OVER
22 ON PAGE 24, 25, 26, 27. WE FIND HERE SOMETHING ON THE ORDER OF
23 FIFTEEN CASES CONCERNED WITH THE MINUTE DETAILS OF THE NUMBER OF
24 SHOTS. AND THE PARTS OF THE BODY INTO WHICH THEY WERE FIRED.
29 BY MR. BOGER:
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BALDUS - DIRECT
Ql. EXCUSE ME, PROFESSOR BALDUS. YOU SAID FIFTEEN CASES?
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2 |A. I’M SORRY. FIFTEEN QUESTIONS. PARDON ME. FIFTEEN
3 | QUESTIONS DEALING WITH THE INTIMATE DETAILS OF HOW THE WEAPON
4 | WAS DISCHARGED AND WHERE IT WAS DISCHARGED.
= WE HAD CODED SOME OF THIS INFORMATION THAT WAS RETURNED
4 | TO US AND CODED IN IOWA, AND DONE SOME PRELIMINARY ANALYSES. AND
% 7 | WE SAW THAT THIS INFORMATION PROVIDED VERY LITTLE IN THE WAY OF
8 | EXPLAINING WHO RECEIVED DEATH SENTENCES AND WHO DIDN‘T, AND
5 | THEREFORE WE DECIDED TO CONSOLIDATE THIS SECTION INTO A MORE
10 | ABBREVIATED FORM, SOME FIFTEEN PAGES OF THIS QUESTIONNAIRE ARE
11 |NOW REDUCED IN THE PROCEDURAL REFORM STUDY TO ONE PAGE. AND, IN
12 | THAT DOCUMENT.
13 |@. WHEN YOU SPEAK OF THE PROCEDURAL REFORM STUDY, THAT’S THE
14 | NAME YOU GAVE TO THE SECOND QUESTIONNAIRE USED IN WHAT’S BEEN
5 | CALLED OVERALL THE PROCEDURAL REFORM STUDY OR THE FIRST STUDY,
16 | IS THAT CORRECT?
17 |A. YES.
13 Wo. OKAY, LET“S TURN TO DB-35 AND I‘LL ASK YOU TO IDENTIFY THAT
19 DOCUMENT, HOLDING DB-27 IN HAND AS WELL. .
20 A. DB-3% IS A COPY OF THE QUESTIONNAIRE THAT WAS USED TO
21 COLLECT DATA IN THE SECOND STAGE OF THE PROCEDURAL REFORM STUDY.
22 Qe THIS IS THE REVISED QUESTIONNAIRE THAT YQU- VE BEEN |
23 TESTIFYING CONCERNING?
25 A. YES. SIR.
23 MR. BOGER: YOUR HONOR. I MOVE DB-35 INTO EVIDENCE AT
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BALDUS - DIRECT
THIS POINT.
| MS. WESTMORELAND: NO OBJECTION. YOUR HONOR.
THE COURT: IT WILL BE RECEIVED.
MR. BOGER: THANK YOU, YOUR HONOR. (WHEREUPON
PLAINTIFF'S EXHIBIT NUMBER DB-35 WAS ADMITTED IN EVIDENCE.)
BY MR. BOGER:
a. PROFESSOR BALDUS, I NOTE THAT DB-35, AS YOU INDICATED. THIS
QUESTIONNAIRE, PERHAPS 13, 16, 17 PAGES IN LENGTH, AND THE
SUPREME COURT QUESTIONNAIRE IS WELL OVER A HUNDRED PAGES.
HOW MUCH INFORMATION DID YOU LOSE? YOU’VE GIVEN US THE
ONE EXAMPLE OF LOSING INFORMATION ABOUT HOW LONG RANGE OR SHORT
RANGE THE SHOT TO THE HEAD OR THE GENITALS OR THE OTHER PARTS OF
THE BODY WERE, WHAT OTHER INFORMATION DID YOU LOSE IN THIS
COMPRESSION?
A. THAT WAS THE ONLY INFORMATION THAT WAS LOST. WAS THAT SORT
OF DETAIL, PLUS THE INFORMATION ABOUT THE, WHETHER THE JURY WAS
AWARE OF IT AND THE STATE OF THEIR AWARENESS. THAT INFORMATION
WAS DROPPED OUT, WE WEREN’T ANSWERING THOSE QUESTIONS. AND
PROCEDURAL INFORMATION.
IN FACT, IT INCLUDES INFORMATION ON SOME QUESTIONS THAT
WERENT INCLUDED IN THE SUPREME COURT QUESTIONNAIRE. THERE WERE
A FEW. IN FACT, IN SPITE OF THAT VOLUME IN THE SUPREME COURT
QUESTIONNAIRE THAT WE FOUND THERE WERE A FEW MATTERS THAT
APPEARED THAT WE THOUGHT WOULD BE APPROPRIATE TO INCLUDE.
THE COURT: MAY I ASK A QUESTION AT THIS POINT? IT
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MIGHT HELP ME UNDERSTAND WHAT’S HAPPENING.
MR. BOGER: SURE, YOUR HONOR.
THE COURT: I WOULD SUPPOSE THAT ALL OF THOSE SORTS OF
QUESTIONS THAT MR. BOGER WAS JUST TALKING ABOUT THAT YOU DROPPED
PROBABLY WOULD BE RELATED ONLY TO THE AGGRAVATING CIRCUMSTANCE
OR THE SPECIALLY VILE, GIVE ME THE WORDS, YOU KNOW WHAT I’M
TALKING ABOUT.
MR. BOGER: OUTRAGEOUSLY VILE OR HORRIBLE.
THE COURT: SHOW ME IN THE NEW STUDY WHERE YOU GATHERED
INFORMATION THAT MIGHT RELATE TO THE WAY IN WHICH THE HOMICIDE
WAS COMMITTED.
THE WITNESS: CERTAINLY.
THE FIRST QUESTION THAT DEALS WITH THAT. YOUR HONOR. IS
ON PAGE &, TALKS ABOUT WHERE THE HOMICIDE OCCURRED. QUESTION 23.
QUESTION 24 CONCERNS WHETHER THERE WAS A
CONTEMPORANEOUS OFFENSE. THAT MATERIAL IN QUESTION 26 COVERED
ABOUT THREE OR FOUR PAGES IN THE OTHER QUESTIONNAIRE.
THE, 27 CONCERNS THE DEFENDANTS MOTIVE. THAT
COMPRESSED 8 TO 10 PAGES IS MY RECOLLECTION. MATERIAL IN THE
OTHER QUESTIONNAIRE.
SPECIAL PRECIPITATING EVENTS IS ON 28.
29 IS THE METHOD OF KILLING.
BY MR. BOGER:
@. YOU’RE SPEAKING OF 29, NOW. THAT'S ITEM 29 ON PAGE 3 OF
THE QUESTIONNAIRE?
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A. YES. 29. PAGE 8S.
THE COURT: WAIT JUST A SECOND.
THE WITNESS: THE METHOD OF KILLING.
THE COURT: ALL RIGHT.
BY MR. BOGER:
Q. EXCUSE ME. PROFESSOR BALDUS, ARE THERE ANY CHANGES ACHIEVED
BETWEEN THE SUPREME COURT QUESTIONNAIRE. AND THE PROCEDURAL
REFORM QUESTIONNAIRE. SIMPLY BY WAY OF FORMAT DIFFERENCES. THAT
ACCOUNT FOR DIFFERENCES IN LENGTH?
A. YES, THE. A PRINCIPAL REASON WHY THE OTHER QUESTIONNAIRE
WAS SO LONG IS THAT THE CODERS WERE EXPECTED TO MAKE THE YES-NO
ENTRY WITH RESPECT THE EACH ONE OF THE EVENTS THAT MIGHT HAVE
OCCURRED.
FOR EXAMPLE ON PAGE 8, QUESTION 29 OF DB-33, YOU CAN
SEE THAT THERE ARE TWENTY-FIVE, APPROXIMATELY. CHOICES THAT ONE
HAS. AND IN THE EARLIER QUESTIONNAIRE THE CODERS WERE REQUIRED
TO MAKE A ENTRY FOR EACH ONE OF THOSE TO INDICATE WHETHER THEY
OCCURRED.
HERE, IF ONLY ONE OF THESE OCCURRED AS THE SOURCE OF
| THE KILLING, CAUSE OF THE KILLING, RATHER, THEY WOULD JUST MAKE
ONE ENTRY.
THE COURT: LET ME ASK YOU A QUESTION, SO I CAN COME TO |
A FEELING OF HOW YOU WORKED THIS.
ARE YOU FAMILIAR WITH THE RECORD IN THE COURT
MCCORQUODALE CASE?
237
BALDUS - DIRECT
ES
THE WITNESS: IVE READ SOME OF THAT CASE. YES, SOME OF
2 | THE RECORD OF IT.
3 THE COURT: 1 BELIEVE. AND YOU CORRECT ME. MR. BOGER.,
4 | IF I MISSTATE THE EVIDENCE. THAT THE SUPREME COURT‘S STATEMENT
Ss | OF FACTS WOULD INDICATE THAT MR. MCCORQUODALE FIRST STRANGLED
6 | THE VICTIM WITH A ROPE, THEN WITH HIS HANDS. AND AFTER SHE WAS
» 7 | DEAD. STOMPED OR BEAT OR WHATEVER, TO MAKE THE BODY FIT INTO A
8 | BOX.
9 UNDER PAGE 8, NUMBER 29.» HOW WOULD THAT BE CODED?
10 THE WITNESS: WELL, IT WOULD BE CODED STRANGULATION
11 |WITH HANDS WOULD BE CODED NUMBER 8.
12 STRANGULATION WITH ROPES —-
13 |BY MR. BOGER:
14 |@. PROFESSOR BALDUS, TO BE CLEAR ON THIS, WHAT WOULD YOU DO
15 |WITH THAT?
16 |A. 1 SEE WHAT YOU MEAN. YOU SEE OVER THERE. YOUR HONOR,
17 QUESTION 29, THERE ARE WHAT WE CALL FOILS. THEY’RE A, B., C, D.
18 Q. AND THAT’S IN WHAT PART OF THE DOCUMENT?
19 A. PAGE 8 OF THE DOCUMENT, ON THE RIGHTHAND SIDE OF THAT PAGE.
20 THOSE NUMBERS 28 AND 29, 30 AND 31, ET CETERA. THAT
21 TELLS YOU WHERE ON THE I.B.M. CARD THAT INFORMATION WILL BE
22 ENTERED WHEN IT“S FINALLY PUT INTO THE COMPUTER, ON S8O0-FIELD
23 CARD.
24 IF THE CODER WOULD READ A CASE. AND IT WOULD SAY
25 STRANGULATION BY HANDS. THE CODER WOULD ENTER AN "8" IN THE
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BALDUS - DIRECT
FIRST CATEGORY.
IF THERE WAS ALSO STRANGULATION WITH ROPES. THEY
WOULD ENTER NUMBER 10.
IF IT ALSO INVOLVED A GUNSHOT WOUND OR IN THE CASE OF
MCCORQUODALE, KNIFE WOUND, A "2" WOULD BE ENTERED AS WELL.
BY MR. BOGER:
Q. PROFESSOR BALDUS, -—
| THE COURT: WHAT I“M TRYING TO GET AT IS IF THE STUDENT
DID IT RIGHT, HE WOULD HAVE CODED ALL OF THE DIFFERENT MEANS BY
WHICH THE HOMICIDE WAS COMMITTED, NOT JUST MAKING A VALUE
JUDGMENT ON WHICH ONE WAS THE CAUSE OF DEATH OR THAT SORT OF
THING.
THE WITNESS! THATS RIGHT, YOUR HONOR.
THE COURT: ALL RIGHT.
THE WITNESS: S0 THEY WOULD ALL BE ENTERED.
BY MR. BOGER:
QR. LET ME ASK YOU, PROFESSOR BALDUS. IF IN FACT. WAS THERE
ANYWAY TO CAPTURE INFORMATION ON THE CAUSE OF DEATH. OR THE
METHOD OF KILLING, IF MORE THAN FOUR METHODS WERE EMPLOYED. IF
MORE THAN FOUR WERE APPLICABLE?
A. YES. THE, ONE OF THE MOST IMPORTANT DOCUMENTS THAT OUR
CODERS PRODUCED WAS THE NARRATIVE SUMMARY OF THE CASE. AND TO MY
KNOWLEDGE IN PREVIOUS RESEARCH OF THIS TYPE, PEOPLE WOULD GO
LOOK AT THE FILES AND CODE THE DOCUMENT, CODE THE QUESTIONNAIRE,
AND THEN THEY LEAVE THE SITE.
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BALDUS -~ DIRECT
WHAT WE DID WAS PRODUCE AN EXTENSIVE NARRATIVE SUMMARY
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OF THE CASE. WE WERE INSPIRED TO DO THIS BY THE WORK DENNIS
YORK HAD DONE. I HAD NEVER SEEN SUMMARIES OF THAT TYPE. WE
FOUND FROM LOOKING AT DENNIS YORK’S SUMMARIES WE COULD GET A
TREMENDOUS AMOUNT OF INFORMATION PACKED INTO A VERY SMALL
DOCUMENT. LITTLE ONE-PAGE SUMMARY THAT HE HAD.
SO WE REQUESTED THE CODERS TO INCLUDE ANY, TO FIRST DO
A SUMMARY OF THE ENTIRE CASE. GENERALLY THIS WAS DONE BEFORE
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STUDENT WOULD BE DISCIPLINED TO WRITE OUT A SUMMARY OF THE CASE
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12 HELP THEM IN ACTUALLY CODING THE QUESTIONNAIRE.
13 AND AS YOU CAN SEE ON PAGE 16 OF THIS QUESTIONNAIRE.
14 YOUR HONOR, DB-3S, THE LAYOUT HERE FOR THE WRITING OF THE
15 SUMMARY. AND YOU’LL SEE AT THE END, IT SAYS, “PLEASE HIGHLIGHT
16 FACTORS NOT COVERED IN THE ANSWERS TO THE PRECEDING QUESTION."
+7 WE HAD NO ILLUSION THAT OUR QUESTIONNAIRE COULD CAPTURE
18 EVERY NUANCE OF EVERY CASE. BUT WE WANTED TO BE ABLE RECORD
12 THAT SOMEHOW.
20 S0. WE ENTERED THAT INFORMATION ON THESE
21 QUESTIONNAIRES, SUMMARIES.
22 Q. WERE THOSE SUMMARIES PRESERVED FOR YOUR STUDY?
23 A. YES.
24 Qe. 80 YOU HAVE AVAILABLE NARRATIVE SUMMARIES FOR ALL THESE
23 CASES. AS WELL AS THE QUESTIONNAIRES, IS THAT CORRECT?
240
BALDUS — DIRECT
1 |A. YES.
2 MR. BOGER: I WANT TO, IF I MIGHT, YOUR HONOR. TO
3 | DIGRESS MOMENTARILY.
3 PROFESSOR BALDUS HAD DISCUSSED THE CODING INSTRUCTIONS
S | THAT WERE GIVEN TO CATHY CHRISTIAN AND ED GATES AS DB-34. LET
6 | ME MOVE THAT DOCUMENT‘S ADMISSION INTO EVIDENCE AT THIS TIME.
Rr 7 THE COURT: THAT’S THE WRITTEN INSTRUCTIONS THAT HE
8 |SENT ALONG?
p MR. BOGER: THATS CORRECT. YOUR HONOR.
10 ‘MS. WESTMORELAND: YOUR HONOR, INSOFAR AS ONLY
11 |RECOGNIZING THAT PROFESSOR BALDUS HAS GIVEN THESE INSTRUCTIONS,
12 | WE ARE NOT AGREEING THAT THEY MIGHT HAVE BEEN RECEIVED OR
( 13 | FOLLOWED» WITH THAT LIMITATION ON THE DOCUMENT ITSELF, I SEE NO
14 |OBJECTION TO IT.
15 THE COURT: ALL RIGHT, THEY WILL BE ADMITTED.
16 MR. BOGER: THANKS YOU, YOUR HONOR. (WHEREUPON
17 | PLAINTIFF‘S EXHIBIT DB-34 WAS ADMITTED IN EVIDENCE.)
18 |BY MR. BOGER: % 19 @. PROFESSOR BALDUS, LET ME DO A FOLLOWUP QUESTION ON THAT
20 | SCORE, HOWEVER. |
21 DID YOU EVER DISCUSS WITH MR. GATES OR MISS CHRISTIAN
22 ABOUT WHETHER OR NOT THEY RECEIVED THESE DOCUMENTS?
23 A. YES. 1 PERSONALLY DELIVERED THEM TO THEM AT ONE TIME. WHEN
24 I ARRIVED IN GEORGIA. I SENT THEM EARLIER AND I SENT ADDITIONAL |
25 COPIES, AND WE SPENT AN EXTENSIVE AMOUNT OF TIME DISCUSSING THE :
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BALDUS ~ DIRECT
1 DOCUMENT.
2 QA. SO YOU’RE IN POSITION WHERE YOU ALL THREE WERE TOGETHER
WITH THE DOCUMENT IN HAND?
A. YES. FOUR DAYS.
@. OKAY. THANK YOU.
3
4
S
é PROFESSOR BALDUS, YOU DESCRIBED WHY IT WAS THAT YOU HAD
7 MOVED FROM THE SUPREME COURT QUESTIONNAIRE TO THE PROCEDURAL
8 REFORM STUDY QUESTIONNAIRE.
9 WHAT DID ED GATES AND CATHY CHRISTIAN THEN DO THAT
10 SECOND SUMMER? DID THEY CODE ONE OR THE OTHER?
11 Fhe WELL, ACTUALLY. MR. BOGER. IT WAS IN THE FALL.
12 Qe FORGIVE ME.
13 A. ALL RIGHT. FALL OF 1980. AND FOR 87 CASES, WHICH ARE
14 IDENTIFIED AS GROUP B ON DB-28A, THEY COMPLETED A SUPREME COURT
135 QUESTIONNAIRE AND A PROCEDURAL REFORM STUDY QUESTIONNAIRE.
16 THOSE WERE COMPLETED IN THE SUPREME COURT FILES.
17 XR. NOW. YOU HAVE TESTIFIED THAT IN THE 197% DATA COLLECTION
18 EFFORT WHAT IN FACT WAS DONE BY CODERS IN GEORGIA WAS TO DICTATE
19 A NARRATIVE SUMMARY WHICH WAS SENT BACK TO IOWA AND CODED IN |
20 I0MWA.
21 WAS THE SAME PROCEDURE FOLLOWED IN 19807
22 A. NO. IN 1980, CATHY AND ED CODED THE QUESTIONNAIRES, THAT
23 1S, THEY COMPLETED THE QUESTIONNAIRES ON THE SCENE, IN THE
24 ARCHIVES.
23 Gl. ALL RIGHT. WHY DID, WHY DID YOU MAKE THIS DISTINCTION
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BALDUS - DIRECT
BETWEEN THE 87 CASES IN WHICH THERE WERE CODING BY BOTH
INSTRUMENTS, AND AS WE NOTE IN "ge OF THE PROCEDURAL REFORM
STUDY CHART. OUR DB-28A. A CATEGORY IN WHICH APPARENTLY ONLY THE
PROCEDURAL REFORM STUDY QUESTIONNAIRE. THE SECOND QUESTIONNAIRE.
WAS USED?
A. THE CASES IN CATEGORIES A AND B CONSTITUTE A POPULATION OF
330 CASES WHICH WERE APPEALED TO THE GEORGIA SUPREME COURT, AND
DECIDED BY THAT COURT ON OR BEFORE JUNE 30, 1978.
WE AT THAT TIME WERE INTERESTED IN RE-EXAMINING CASES
| FOR, FOR THE ISSUE OF PROPORTIONALITY REVIEW. AND THAT WAS A
SEPARATE SET OF CASES, CODED IN THE SUPREME COURT FORMAT THAT WE
INTENDED TO USE FOR SPECIFIC ANALYSIS OF HOW THE SUPREME COURT
CONDUCTED PROPORTIONALITY REVIEW.
IN ADDITION, WE WANTED TO USE THOSE CASES PLUS THE
OTHER 264 CASES TO BE ABLE HAVE A FILE WHICH INCLUDED ALL MURDER
CASES. DURING THIS PERIOD. WHETHER OR NOT THEY HAD BEEN APPEALED
TO THE GEORGIA SUPREME COURT, SO THAT WE COULD EVALUATE
QUESTIONS OF DISCRIMINATION AND ARBITRARINESS AS IT AFFECTED ALL
CASES, NOT SIMPLY THOSE THAT HAD BEEN APPEALED.
THE CASES IN GROUP A AND B OF DB-28A, ARE SIMPLY CASES
THAT HAVE BEEN APPEALED TO THE GEORGIA SUPREME COURT.
Q. THAT WAS A SUBSET OF CASES ON WHICH YOU WANTED TO EXAMINE
ONE OF THESE TRIFURCATED QUESTIONS YOU HAD PREVIOUSLY
IDENTIFIED?
A. THATS CORRECT.
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BALDUS - DIRECT
1.
THE COURT: LET ME MAKE SURE I UNDERSTAND. THE
2 CONVERSE BEING THAT "C" CASES. THE 264 CASES IN "C" WERE NOT
3 APPEALED.
4 THE WITNESS: SOME OF THEM WERE APPEALED. YOUR HONOR.
5 BECAUSE THE WAY WE DEFINED THE UNIVERSE SOME OF THE CASES IN
é THAT GROUP HAD ALSO BEEN APPEALED. BECAUSE THAT GROUP OF CASES,
% 7 EXTENDED TO A LATER TIME.
8 TO EXPLAIN PRECISELY, THE CASES IN A AND B MUST HAVE
9 BEEN APPEALED, HAD THE APPEAL DECIDED BY JUNE 30, “78.
10 THE ENTIRE UNIVERSE WAS DEFINED IN TERMS OF PEOPLE WHO
11 WERE ARRESTED FOR THEIR CRIME BEFORE JUNE 30, “78. SO A NUMBER
12 OF THOSE CASES RESULTED IN LATER CONVICTIONS THAT WERE APPEALED.
13 BUT ALSO. THERE WERE A NUMBER OF CASES THAT HAD RESULTED IN
14 |CONVICTIONS BEFORE JUNE 30, “78 THAT HAD NOT BEEN APPEALED. AND
15 | SOME THAT HAD RESULTED FROM ARRESTS AND CONVICTIONS AFTER ‘78
16 | AND HAD BEEN APPEALED.
17 SO, BASICALLY, IT REPRESENTED A BROAD EXTENSION OF THE
18 | POPULATION AND PICKED UP BOTH APPEALED AND UNAPPEALED CASES.
19 BUT MOST IMPORTANTLY IT PICKED UP ALL THE UNAPPEALED
20 |CASES THAT PARALLELED THE 330 IN GROUPS A AND B THAT HAD BEEN
21 APPEALED.
22 |BY MR. BOGER:
23 |@. NOW, I ALSO NOTE ON DB-28A., AND IN DB-28 FIGURE 2 IN DUR
24 |EVIDENCE BOOK THAT IT INDICATES THAT THERE ARE SOME CASES THAT
23 WERE APPARENTLY CODED USING THE PROCEDURAL REFORM STUDY IN 1931.
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BALDUS - DIRECT
CAN YOU EXPLAIN THAT?
A. YES. THERE WERE APPROXIMATELY 80 CASES THAT WE DID NOT
COMPLETE THE CODING ON DURING THE FALL OF 1980. AND THOSE CASES
WERE SUBSEQUENTLY CODED IN 1981 WHEN WE UNDERTOOK OUR SECOND
DATA COLLECTION EFFORT.
SO THE CONSEQUENCE WAS THAT THIS ENTIRE FILE WAS NOT
PUT TOGETHER UNTIL THE FALL OF 1981.
@. DID YOU USE DIFFERENT CODERS FOR THE 1981 PORTION OF THE
PROCEDURAL REFORM STUDY QUESTIONNAIRE?
A. NO, THAT CODING WAS ALL DONE BY ED GATES.
@. ALL RIGHT. SO IN OTHER WORDS, I NOTE ON YOUR CHART THAT ED
GATES AND CATHY CHRISTIAN ARE NOTED AS DATA GATHERERS FORTH “C"
PORTION, PROCEDURAL REFORM STUDY ONLY PORTION, OF THE DATA
GATHERING, IT SAYS. DATE. 1980-/81.
MISS CHRISTIAN DID NOT ENGAGE IN THE “81 CLEANUP OF THE
LAST EIGHTY CASES. IS THAT CORRECT?
A. NO. SHE DID NOT, TO THE BEST OF MY RECOLLECTION. NO, SHE
MAY HAVE, MY RECOLLECTION IS THAT SHE MAY HAVE BEEN HERE IN
GEORGIA FOR THE FIRST MONTH OR SO OF JANUARY OF 1981, AND HAD
DONE A LITTLE WORK JUST FINISHING UP WHAT HAD BEEN DONE BEFORE.
BUT THOSE EIGHTY CASES THAT HAD BEEN MISSED AND HADN’T BEEN
COMPLETED, SHE HAD NO ROLE IN CODING THEM.
@. DID MR. GATES FOLLOW THE SAME PROCEDURES IN 1981, TO YOUR
KNOWLEDGE, THAT HAD BEEN ENGAGED IN IN 19807
A. YES.
BALDUS — DIRECT
Wd. DID YOU DISCUSS THOSE EIGHTY WITH HIM DURING ANY FERIQD?
-
2 A. YES. WE DISCUSSED THEM. BUT AT THAT POINT, OUR DISCUSSIONS
3 WERE NOT EXTENSIVE. BECAUSE ED GATES HAD TREMENDOUS CONTROL OVER
4 THIS CODING PROCESS BY THAT POINT.
3 BUT WE DID DISCUSS THESE CASES WHENEVER ANY ISSUES
é& AROSE.
% 7 Qe. NOW. WE“RE GOING TO DISCUSS DATA ENTRY ON THE COMPUTERS AT
8 A LATER MOMENT. BUT THERE’S ONE MATTER THAT SEEMS TO ME TO
9 LOGICALLY FALL HERE.
10 YOU HAVE NOW COLLECTED DATA ON WHAT LOOKS LIKE 954
11 CASES, WHICH, EXCUSE ME, 594 CASES, BUT YOU‘VE USED ONE DATA
12 COLLECTION INSTRUMENT FOR 243 OF THEM, YOU USED ANOTHER DATA
13 COLLECTION INSTRUMENT FOR 244 AND You HAVE USED BOTH DATA
14 COLLECTION INSTRUMENTS ON 87.
15 HOW WAS IT POSSIBLE TO, WITH THESE DIFFERENT KINDS OF
16 QUESTIONNAIRES TO ASSEMBLE ONE FILE FOR ANALYSIS?
17 A. IT WAS ESSENTIAL THAT THE DATA ALL BE CODED IN THE SAME
18 FORMAT TO BE ABLE TO ANALYZE ALL THESE CASES.
XQ. LET ME CLARIFY, PROFESSOR BALDUS. YOU USED THE WORD
20 "CODE." NOW WE“VE TALKED ABOUT THE WORD "CODE" TO MEAN ENTER
21 | ITEMS ON THE QUESTIONNAIRE.
22 ARE YOU USING THE CODE IN A DIFFERENT SENSE?
23 A. 1M USING THE CODE IN THE SENSE OF THE FORMAT THAT THE
24 ANSWERS THAT FOLLOW MUST BE THE SAME. THAT IS, WE OBSERVED WHEN WE
23 LOOKED AT THE SUPREME COURT QUESTIONNAIRE THE ANSWERS TO THE |
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BALDUS ~ DIRECT
QUESTIONS FOLLOW ONE FORMAT. IN THE PROCEDURAL REFORM STUDY
THEY FOLLOWED ANOTHER FORMAT. THE SAME INFORMATION IS THERE BUT
THEY“VE GOT A DIFFERENT FORMAT.
TO BE ABLE DO A MACHINE ANALYSIS YOU HAVE TO HAVE AN
IDENTICAL FORMAT. SO IT WAS ESSENTIAL FOR US TO TAKE THE
INFORMATION ON THESE 243 CASES AND TRANSFER IT INTO THE FORMAT
THAT WAS USED ON THE CASES IN B AND C OF DB-28A.
AND THAT WAS DONE WITH A COMPUTER PROGRAM. I WROTE THE
SPECIFICATIONS FOR THE PROGRAM WHICH IDENTIFIED THE
EQUIVALENCIES OF THE VARIABLES OR THE EQUIVALENCIES OF THE
QUESTIONS, RATHER. IN THE SUPREME COURT QUESTIONNAIRE. AND
LINKED THEM UP TO THE QUESTIONS IN THE PROCEDURAL REFORM
RUESTIONNAIRE.
a. HOW DID YOU DO THAT. SPECIFICALLY?
A. I WENT THROUGH EVERY QUESTION IN THE SUPREME COURT
QUESTIONNAIRE AND FOUND ITS MATCH IN THE PROCEDURAL REFORM
QUESTIONNAIRE. IT WAS ON THE BASIS OF THAT EXERCISE THAT I
REALIZED THAT THE INFORMATION IN THE SUPREME COURT QUESTIONNAIRE
WAS SUBSTANTIALLY CONTAINED IN THE PROCEDURAL REFORM
RUESTIONNAIRE.
THEN PROFESSOR WOODWORTH HAD A PROGRAM WRITTEN AND THE
COMPUTER MADE THE TRANSFORMATION OF THE DATA FROM ONE FORMAT. TO
THE OTHER.
ad. AT THAT POINT, DID YOU HAVE A SINGLE FILE WITH ALL OF THE
%94 CASES IN THE PROCEDURAL REFORM STUDY IN THE SAME FORMAT ON
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BALDUS - DIRECT
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o THE SAME MAGNETIC TAPE. IN EFFECT?
A YES.
Q. AND IS THAT THE BASIS OF THE DATA THAT WAS COLLECTED THAT
WAS USED TO ANALYZE MATTERS IN THE PROCEDURAL REFORM STUDY?
A. YES, WITH ONE SMALL ADDITION.
WE HAD TO ADD TO THE FILE THE INFORMATION THAT WE HAD
OBTAINED FROM THE DEPARTMENT OF CORRECTIONS THAT I DESCRIBED
EARLIER, AND THAT INFORMATION WHICH WE REFER TO AS PART A, OR
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PART 1 OF THE PROCEDURAL REFORM STUDY WAS ADDED TOGETHER INTO
10 THE FILE WITH THE INFORMATION FROM THE PROCEDURAL REFORM
11 QUESTIONNAIRE. WHEN THOSE TWO SETS OF DATA WERE MERGED BY
12 PROFESSOR WOODWORTH. THEN WE HAD A COMPLETE FILE ON EACH CASE.
13 Ql YOU TALKED ABOUT MERGER. HOW WAS THAT ACCOMPLISHED?
14 A. THAT WAS DONE BY PROFESSOR WOODWORTH THROUGH A COMPUTER
15 PROGRAM THAT LINKED UP THE CASES IN THE TWO STUDIES TO MAKE A
16 SEPARATE FILE FOR EACH, SO THAT THE INFORMATION WE HAD OBTAINED
17 EITHER FROM THE SUPREME COURT AND PAROLE BOARD WHICH FOCUSED ON
i8 THE CHARACTERISTICS OF THE OFFENSE, THAT INFORMATION WAS LINKED
4 19 UP FOR EACH OFFENDER IN THE FILE THAT FOCUSED ON THE RECORD OF
20 THE OFFENDER AND THE INFORMATION CONCERNING THE PERSONAL
21 CHARACTERISTICS OF THE OFFENDER TYPE OF INFORMATION THAT WAS
22 AVAILABLE IN THE DEPARTMENT OF CORRECTIONS FILES.
23 Ql. NOW. YOU MENTIONED YESTERDAY IN YOUR TESTIMONY THAT SOURCES
24 OF THE DATA FOR THE PROCEDURAL REFORM STUDY, INCLUDED NOT ONLY
23 THE GEORGIA SUPREME COURT AND THE PARDON AND FAROLE BOARD. AND
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BALDUS -~ DIRECT
DEPARTMENT OF OFFENDER REHABILITATION, BUT ALSO LAWYERS AS WELL.
CAN YOU EXPLAIN WHAT INFORMATION THEY PROVIDED?
A. YES. IN A NUMBER OF CASES, WE DID NOT KNOW THE STATUS OF
THE DEFENSE COUNSEL. THAT IS, WHETHER THE ATTORNEY HAD BEEN
APPOINTED OR RETAINED.
ALSO IN A NUMBER OF CASES, WE DID NOT KNOW WHETHER
THERE HAD BEEN A PENALTY TRIAL.
IN UNAPPEALED CASES, OUR ONLY RECORD WAS THE RECORD IN
THE DEPARTMENT OF PARDONS AND PAROLES. AND THE INVESTIGATORS WHO
PUT TOGETHER THE FILES IN THE DEPARTMENT OF PARDONS AND PAROLES
ARE BY AND LARGE NOT SENSITIVE TO THE PROCEDURAL DEVELOPMENT OF
THE CASE IN THE COURT SYSTEM. SO IF A PERSON RECEIVED A LIFE
SENTENCE AS A RESULT OF A MURDER CONVICTION, THE RECORD
GENERALLY WOULD NOT INDICATE WHETHER THERE HAD BEEN A PENALTY
TRIAL. AND EVEN IF IT DID SUGGEST IT, WE DID NOT FEEL THAT THAT
WAS A PARTICULARLY RELIABLE SOURCE OF INFORMATION ON A TECHNICAL
PROCEDURAL QUESTION OF THAT TYPE.
S0, FOR THOSE CASES, WE FELT IT INCUMBENT TO GET VALID
INFORMATION TO SEND LETTERS TO ATTORNEYS AND TO DISTRICT
ATTORNEYS TO TRY AND ANSWER THOSE QUESTIONS.
QR. DID YOU DEVELOP SOME REGULAR FORMAT FOR SOLICITING THAT
INFORMATION?
A. YES, WE DEVELOPED A SERIES OF LETTERS AND QUESTIONNAIRES
THAT WE SENT TQ DEFENSE ATTORNEYS AND PROSECUTORS.
IN EACH OF THESE CASES, THE FILE OF THE CASE IN THE
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PAROLE BOARD WOULD INDICATE WHO DEFENSE COUNSEL WAS IN THE CASE,
AND IT WOULD ALSO INDICATE WHO THE PROSECUTOR HAD BEEN IN THE
CASE. SO WHEN WE WOULD SEND THE COMMUNICATION TO THE
PROSECUTOR, VERY OFTEN WE WOULD FIND THE PERSON WAS NO LONGER
THE PROSECUTOR. AND THEY WOULD REFER US TO THE INCUMBENT AND
THATS HOW WE WOULD GET THE INFORMATION IN THOSE CASES.
IF WE SENT IT TO DEFENSE COUNSEL, THEN THEY WOULD
ANSWER IT ON THE BASIS OF THEIR RECORDS.
Q. LET ME ASK YOU TO TURN TO DB~34& FOR IDENTIFICATION AND ASK
YOU TO IDENTIFY THOSE DOCUMENTS, IF YOU CAN?
Ae YES. THIS IS A SAMPLE OF A LETTER SENT TO DEFENSE COUNSEL
IN A PARTICULAR CASE REQUESTING INFORMATION ON A DEFENDANT BY
NAME OF CHARLES YOUNG WHOM THE PAROLE BOARD FILES INDICATED HAD
BEEN REPRESENTED BY THE ADDRESSEE OF THIS LETTER, WILLIAM HILL.
AND MR. HILL RETURNED THE QUESTIONNAIRE, WHICH IS THE
SECOND, PAGE OF THIS, INDICATING THAT HE HAD BEEN RETAINED. THAT
THERE HAD BEEN NO PENALTY TRIAL, GIVING THE REASON WHY THERE HAD
BEEN NO PENALTY TRIAL.
Re DID YOU TELL DEFENSE COUNSEL OR THE PROSECUTORS PRECISELY
WHAT THE RESEARCH OBJECTIVES OF YOUR STUDY WERE?
A. WELL, IT INDICATES THAT WE ARE CONDUCTING A SENTENCE OF HOW
GEORGIA COURTS ADMINISTER THE GEORGIA DEATH SENTENCING STATUTE
IN MURDER CASES. THAT’S WHAT WE INFORMED THEM OF, AND WHO WAS
FUNDING THE RESEARCH, AND WHERE ELSE WE HAD OBTAINED
INFORMATION, AND EXPLAINING THAT WE HAD MOST OF THE INFORMATION,
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BUT WE JUST NEEDED THIS LITTLE BIT OF ADDITIONAL INFORMATION.
Q. DID YOU GIVE THEM ANYMORE INFORMATION ABOUT YOUR
OBJECTIVES? FOR EXAMPLE. WHAT YOU HOPED TQ SHOW, WHAT YOU
EXPECTED THE OUTCOMES TQ BE, THAT SORT OF, OR WHAT IN EFFECT THE
SIGNIFICANCE OF THE INFORMATION THEY WOULD BE PROVIDING TO YOU
WOULD BE FOR THE OVERALL STUDY?
A. NO.
Q. LET ME ASK YOU TO LOOK BEYOND THE FIRST TWO PAGES OF WHATS
BEEN MARKED AS DB-34 AND ASK YOU TO IDENTIFY THAT DOCUMENT?
IT WILL BE THE THIRD PAGE.
A. THE THIRD PAGE OF DB-347?
Qe THATS CORRECT?
A. THAT’S AN ALTERNATIVE FORM THAT WAS SENT TO DEFENSE
ATTORNEYS. WE USED, WE WANTED TO SAVE RESOURCES. AND WE
COMBINED THE QUESTIONS ONTO THE SAME PAGE WITH THE LETTER.
THAT'S WHY THIS FOLLOWS A SLIGHTLY DIFFERENT FORMAT. BUT IT ASKS
THE EXACT SAME QUESTIONS.
Q. IN OTHER WORDS, YOU USED MORE THAN ONE FORMAT OF QUESTIONS
OVER THE PERIOD OF TIME? HOW LONG WERE THESE LETTERS SENT OUT?
WAS THIS DONE IN A MATTER OF WEEKS OR ——
A. NO, THIS IS A PROCESS THAT WENT ON FOR THREE YEARS, THREE
AND A HALF YEARS COLLECTING THIS INFORMATION.
Qe WERE ANY SUBSTANTIVE CHANGES MADE IN THE QUESTIONS THAT
WERE PUT TO THE PROSECUTORS. THE DEFENSE COUNSELS. OR IN THE
FORMAT OF THE LETTER?
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BALDUS - DIRECT
A. NO. THOSE ARE THE ONLY THREE QUESTIONS WE EVER ADDRESSED TO
2. LET ME ASK YOU TO LOOK AT THE THIRD DOCUMENT IN DB-36 AND
WE‘LL GO BRIEFLY THROUGH THEM. BUT I WANT YOU TO IDENTIFY THEM.
THIS IS A DOCUMENT DATED SEPTEMBER 14. 1981.
A. YES, THIS IS A COPY OF A LETTER SENT TO A DISTRICT ATTORNEY
WHO HAD, WHO THE RECORDS INDICATED HAD PROSECUTED THIS CASE TO
ASK WHETHER THERE HAD BEEN A PENALTY TRIAL IN THE CASE.
THIS WAS THE FORMAT THAT WE WERE USING AT THIS TIME TO
SOLICIT THIS INFORMATION FROM DISTRICT ATTORNEYS.
9. WERE THERE SOME CASES IN WHICH YOU KNEW THE STATUS OF THE
DEFENSE COUNSEL AND THEREFORE WOULD ASK ONLY THE QUESTION ABOUT
PENALTY, OR DID YOU ALWAYS ASK BOTH QUESTIONS? HOW WAS THAT
DONE?
A. NO, THE, WE SENT OUR FIRST INQUIRY TO THE DEFENSE ATTORNEY.
FREQUENTLY, THE DEFENSE ATTORNEY WAS NOT TO BE FOUND, OR THE
ADDRESS, WE COULDNT FIND THE DEFENSE ATTORNEY. THEN WE WOULD
SEND THE LETTER TO THE PROSECUTOR. WE WOULD ONLY SEND AN
INQUIRY RELATED TO THE INFORMATION WE DIDNT HAVE. OUR
OBJECTIVE WAS TO GET AS MANY ANSWERS AS WE COULD, AND MAKE THE
QUESTIONNAIRES AS SHORT AS POSSIBLE. AND SO EACH LETTER WAS
TAILORED TO THE INFORMATION THAT WE HAD IN THE FILE. AND WHETHER
OR NOT WE KNEW WHO THE DEFENSE ATTORNEY WAS. IF WE DIDN’T KNOW
THE DEFENSE ATTORNEY. WE WOULD SEND A LETTER TO THE PROSECUTOR.
a. LET'S LOOK QUICKLY AT THE NEXT THREE DOCUMENTS. AND HAVE
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YOU IDENTIFY THOSE?
A. WELL, THE NEXT THREE DOCUMENTS —-
QR. WITHIN DB-36, PROFESSOR BALDUS?
A. YES, THE NEXT DOCUMENT THAT STARTS "THIS IS TO REQUEST YOUR
ASSISTANCE" IS AN ALTERNATIVE FORM OF LETTER, SENT TO DEFENSE
COUNSEL REQUESTING INFORMATION SIMPLY ABOUT THE STATUS OF
DEFENSE COUNSEL IN THAT CASE. THAT MEANT WE HAD INFORMATION ON
WHETHER THERE HAD BEEN A PENALTY TRIAL AND ALL WE WANTED
INFORMATION ON WAS WHETHER OR NOT THE PERSON HAD BEEN APPOINTED
OR RETAINED.
THE NEXT PAPER. AGAIN, IS A LETTER SENT TO DISTRICT
ATTORNEYS.
AND THE FOLLOWING ONE IS THE SORT OF FOLLOWUP LETTER WE
WOULD SEND.
WE FOUND THAT THE DEFENSE ATTORNEYS AND PROSECUTORS
WERE VERY HELPFUL IN RESPONDING TO THE QUESTIONNAIRES, BUT CFTEN
A FOLLOWUP LETTER WOULD INCREASE THE RETURN RATE SUBSTANTIALLY.
80 WE SENT THE RETURN, FOLLOWUP LETTERS FREQUENTLY.
a. WHAT ARE THE LAST THREE ——
A. THE LAST THREE ARE THE VERY EARLIEST QUESTIONNAIRES THAT WE
SENT OUT TO PROSECUTORS IN 1979. AND ONE OF THEM IS A BLANK AND
THE LAST TWO ARE AN EXAMPLE OF THE FORM OF THE ANSWERS THAT UWE
WOULD RECEIVE ON THESE QUESTIONNAIRES THAT THEY WERE RETURNED.
YOU CAN SEE IN ONE CASE, KENNETH HARDY. IT INDICATES THERE WAS A
PENALTY TRIAL IN THE CASE.
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BALDUS —- DIRECT
AND THE NEXT ONE IN THE DAYS OF DANNY MARTIN, WE
OBTAINED THE SAME INFORMATION.
a. PROFESSOR BALDUS. DO YOU KNOW OF ANY OTHER EXAMPLES OF THE
DIFFERENT FORMATS THAT WERE USED IN SOLICITING THIS INFORMATION
FROM PROSECUTORS OR DEFENSE COUNSEL DURING THIS 3-YEAR PERIOD?
A. NO. AS A RESULT OF THE SEARCH I DID OF MY RECORDS RECENTLY
IN ANTICIPATION OF THIS TESTIMONY, THESE ARE THE EXAMPLES I WAS
ABLE TO FIND. ;
MR. BOGER: YOUR HONOR. I MOVE DB-36 INTO EVIDENCE AS
EXAMPLES OF THE FORMAT THAT PROFESSOR BALDUS USED IN SOLICITING
THIS ADDITIONAL INFORMATION FOR THE PROCEDURAL REFORM STUDY.
MS. WESTMORELAND: AS EXAMPLES, 1 HAVE NO OBJECTION,
YOUR HONOR.
THE COURT: IT WILL BE ADMITTED.
BY MR. BOGER:
9. 90 YOUR TESTIMONY. PROFESSOR BALDUS, NOW, CONCERNING THE
DATA GATHERING PROCESS. AND WE’VE CLEARED UP THIS LAST POINT
ABOUT DATA FROM PROSECUTORS AND DEFENSE COUNSEL. IS THAT THE 594
CASES THAT WERE EVENTUALLY CODED USING THESE TWO QUESTIONNAIRES,
SUPPLEMENTED BY THE OTHER ITEMS THAT WE‘VE MENTIONED, WERE THE
BASIS FOR YOUR ANALYSIS IN THE PROCEDURAL REFORM STUDY?
A. THE ONLY ADDITIONAL SOURCE OF INFORMATION WAS FROM THE
BUREAU OF VITAL STATISTICS. I ALLUDED TO THAT YESTERDAY. BUT
THAT WAS ONE ADDITIONAL PLACE WE HAD TO OBTAIN INFORMATION. THE
GREAT BULK OF THE FILES, CLOSE TO FIFTY PERCENT, PERHAPS THIRTY
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BALDUS - DIRECT
PERCENT OF THE FILES IN THE PAROLE BOARD WOULD NOT INDICATE WHAT
THE RACE OF THE VICTIM WAS. SO WE OBTAINED THE RACE OF THE
VICTIM FROM THE FILES. GENERALLY THE NAME WOULD BE THERE. AND
THE INDICTMENT WOULD BE IN THE RECORDS. WE OBTAINED THE NAME OF
THE VICTIM,» AND THE OF DATE OF DEATH AND COUNTY OF DEATH, AND
THEN SEEK TO OBTAIN THAT INFORMATION FROM THE BUREAU OF VITAL
STATISTICS. THAT WAS THE ONLY OTHER BIT OF ADDITIONAL
INFORMATION THAT WE WOULD GET.
MR. BOGER: YOUR HONOR, JUST FOR YOUR INFORMATION, I
THINK LATER WELL HAVE A SAMPLE OF THAT VITAL STATISTICS
INFORMATION IN CONNECTION WITH THE CHARGING AND SENTENCING
STUDY. BUT WE DON’T HAVE ONE FOR THE PROCEDURAL REFORM STUDY.
AT THIS TIME, I WOULD LIKE TO MOVE THE ADMISSION INTO
EVIDENCE OF DB-28 WHICH ARE THE TWO SCHEMATIC DRAWINGS OF THE
INFORMATION SOURCES THAT WERE USED FOR THE SUPREME COURT
QUESTIONNAIRE, THE PROCEDURAL REFORM QUESTIONNAIRE AND THE SMALL
VERSION OF THE DIAGRAM THAT’S BEFORE YOUR HONOR AS 28A TO
ILLUSTRATE PROFESSOR BALDUS“ TESTIMONY. HE‘S RELIED ON THEM
EXTENSIVELY, I THINK, DURING HIS TESTIMONY.
MS. WESTMORELAND: YOUR HONOR, MY ONLY OBJECTION WOULD
BE THAT I DON’T REALLY SEE THE RELEVANCY AT THIS POINT.
PROFESSOR BALDUS, AS MR. BOGER HAS JUST NOTED, HAS TESTIFIED
EXTENSIVELY CONCERNING BOTH DOCUMENTS. AND I THINK HE’S ALREADY
SET FORTH ALL THE INFORMATION CONTAINED IN THOSE DOCUMENTS. I
THINK THEY’RE MERELY CUMULATIVE OF THE TESTIMONY GIVEN. AND I
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BALDUS ~- DIRECT
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SEE NO PURPOSE FOR THE DOCUMENTS THEMSELVES BEING ADMITTED.
THE COURT: THEY MAY ASSIST THE READER OF THE TOTAL
RECORD IN UNDERSTANDING THE PROFESSOR‘S TESTIMONY AND ILL LET
THEM GO ALONG WITH THE RECORD AS DEMONSTRATIVE OF THE TESTIMONY.
I THINK PROFESSOR BALDUS” TESTIMONY IS CONTROLLING ON HOW THE
DATA WAS GATHERED. I THINK THIS IS, AS I SAY, DEMONSTRATIVE OF
THE CONCEPTULIZATION, VISUALIZATION OF WHAT HE SAID.
MR. BOGER: THANK YOU. $0 THEY’RE ADMITTED, YOUR
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BY MR. BOGER:
12 (* 8 PROFESSOR BALDUS, WE“VE TALKED ABOUT THE PROCEDURAL REFORM
13 STUDY EFFORT.
14 DID THERE COME A TIME WHEN YOU UNDERTOOK A SECOND DATA
13 COLLECTION EFFORT IN STATE OF GEORGIA?
16 THE COURT: ARE YOU CHANGING SUBJECTS?
17 MR. BOGER: WE ARE INDEED.
18 THE COURT? ALL RIGHT. LET‘S TAKE A RECESS FOR ABOUT
% 19 TEN MINUTES.
20 --—-
21 {RECESS TAKEN.)
22 THE COURT: ALL RIGHT. MR. BOGER.
23 -—--
24 DAVID C. BALDUS,
23 BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
BALDUS - DIRECT
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT’D)
BY MR. BOGER!
0. PROFESSOR BALDUS, I WAS JUST ABOUT TO BEGIN AN INQUIRY INTO
THE GENESIS OF YOUR SECOND STUDY. THE CHARGING AND SENTENCING
STUDY.
WHEN DID YOU FIRST BEGIN TO DEVELOP PLANS FOR THAT
STUDY? 9
A. IN THE SPRING OF 1980. I RECEIVED A PHONE CALL FROM ANN
DOWLING, WHO IS AN EMPLOYEE OF THE LEGAL DEFENSE FUND IN NEW
YORK, AND SHE INDICATED TO ME THAT THE L.D.F. WAS CONTEMPLATING
THE SUBMISSION OF A GRANT PROPOSAL TO THE EDNA MCCONNEL CLARK
FOUNDATION TO SEEK FUNDS FOR THIS STUDY OF CAPITAL SENTENCING IN
THE UNITED STATES. AND SHE ASKED ME WHAT I THOUGHT WOULD BE AN
APPROPRIATE APPROACH TO TAKE IN SOLICITING FUNDS.
AND I TOLD HER WHAT I THOUGHT THE IMPORTANT ISSUES WERE
AND HOW SHE MIGHT PRESENT THOSE ISSUES TO THE FUNDING
FOUNDATION.
AND LATER I LEARNED THAT THEY HAD SUBMITTED THIS
PROPOSAL AND HAD RECEIVED SOME FUNDING.
1 RECEIVED A FURTHER CALL ASKING IF I WOULD BE
INTERESTED IN UNDERTAKING ANY RESEARCH WITH THESE FUNDS.
I SAID THAT I WOULD BE INTERESTED IN TALKING ABOUT
THAT, AND IN AUGUST OF 1980, I MET IN NEW YORK WITH JACK BOGER.
COUNSEL IN THIS PROCEEDING, AND WE DISCUSSED THE TERMS ON WHICH
257
BALDUS - DIRECT
I MIGHT BE WILLING TO UNDERTAKE SOME RESEARCH WITH THE FUNDS THEY
-
HAD OBTAINED .FROM THE EDNA MCCONNELL CLARK FOUNDATION.
Q. WHAT WERE THOSE TERMS? DO YOU REMEMBER?
A. YES. THE TERMS WERE THAT THEY WOULD PROVIDE ME WITH THE
FUNDS TO CONDUCT THE RESEARCH. AND THAT I WOULD HAVE COMPLETE
CONTROL OVER THE CONDUCT OF THE RESEARCH. AND THE USE OF THE
RESULTS OF THE RESEARCH. REGARDLESS OF THE OUTCOME.
1 TOLD THEM THAT IF THE OUTCOME OF THE RESEARCH WAS
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14 PUBLISH THE INFORMATION WHERE I CHOSE. ok
15 Q. WERE YOU OFFERED ANY COMPENSATION FOR YOUR SERVICES BEYOND
16 THE OUT-OF-POCKET EXPENSES YOU WOULD INCUR?
17 A. NO.
138 oe. AND HAVE YOU RECEIVED ANY FROM US AT ANY TIME, BEYOND
% 19 oUT-CF —POCKET EXPENSES FOR YOUR RESEARCH?
20 A. NO.
21 Ga WERE THERE FURTHER DISCUSSIONS ABOUT THE SHAPE OF THE
22 RESEARCH ITSELF, OR THE GENERAL OBJECTIVES OF IT?
23 A. WELL, I EXPLAINED TO MR. BOGER AND THE OTHER PEOPLE THAT
24 WERE AT THE MEETING THAT I WASNT AT ALL SURE WHAT THE RESEARCH
23 WOULD PRODUCE. I HAD SPENT OVER A YEAR ANALYZING DATA IN
BALDUS - DIRECT
CONNECTION WITH OUR COMPARATIVE EXCESSIVENESS ARTICLE THAT WAS
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2 PUBLISHED IN THE STANFORD LAW REVIEW FROM THE STATE OF
3 CALIFORNIA, AND THOSE DATA SHOWED NO RACIAL EFFECTS WHATEVER.
4 AND I EXPLAINED THAT TO THEM.
S AND I ALSO POINTED OUT THAT THE EARLY ANALYSIS THAT I
& HAD DONE ON THE SUPREME COURT DATA THAT 1 COLLECTED, THOSE WERE
3 a THE DATA IN PART A OF THE EXHIBIT DB-28A. THAT I HAD DONE A
8 PRELIMINARY ANALYSIS ON THOSE DATA. AND THEY SHOWED NO RACE OF
9 | DEFENDANT EFFECTS WHATEVER. AND THAT THEY SHOWED VERY UNCLEAR AT
10 THAT STAGE RACE OF VICTIM EFFECTS. 1 HAD NOT ANALYZED THE DATA
11 IN ANY DETAIL. THAT WAS SORT OF A FIRST SHOT OF IT, BUT I SAID I
12 WANT YOU TO KNOW THAT THE RESULTS MAY NOT AT ALL BE WHAT YOU
13 MIGHT WANT TO SEE, BUT THAT THOSE WERE THE TERMS UNDER WHICH I
14 WOULD UNDERTAKE THE WORK.
15 Q. AND WAS THERE ANY FURTHER MEETING HELD BETWEEN PEOPLE OF
16 THE LEGAL DEFENSE FUND AND YOURSELF ABOUT THIS PROJECT?
17 A. YES. I ATTENDED A MEETING IN STANFORD, CALIFORNIA, AT THE
18 STANFORD LAW SCHOOL IN THE FALL OF 1980 WHERE THE SUBJECT OF THE
DISCUSSION WAS WHERE THE RESEARCH WOULD BE CONDUCTED. -
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© Gl. DO YOU REMEMBER WHO WAS PRESENT AT THAT MEETING?
21 A. YES. YOU WERE PRESENT AT THE MEETING.
22 TIM FORD WAS PRESENT AT THE MEETING.
23 DEBORA FINN.
24 TONY AMSTERDAM.
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BALDUS - DIRECT
JOEL BERGER, SAM CROSS WERE PRESENT. ps
2 Q. LET“S IDENTIFY FOR THE RECORD WHO THOSE PEOPLE ARE. WHO
3 WERE JOEL BERGER AND DEBBIE FINN?
4 Ae THEY ARE ATTORNEYS EMPLOYED BY THE LEGAL DEFENSE FUND.
te AND ANTHONY AMSTERDAM WAS A PROFESSOR OF LAW AT
1 STANFORD UNIVERSITY AT THE TIME.
* 7 AND --
8 Oo. TIM FORD?
? A. TIM FORD IS AN ATTORNEY FROM THE STATE OF WASHINGTON, WHO
10 WAS: WHO IS PARTICIPATING IN THIS PROCEEDING.
11 AND CHARLES PULASKI IS A CO-AUTHOR. WHO WAS AT ARIZONA
12 STATE UNIVERSITY IN THE LAW SCHOOL AT THE TIME.
13 AND SAM GROSS IS AN ATTORNEY WHO AT THE TIME. I
14 BELIEVE, WAS TEACHING AT STANFORD LAW SCHOOL, AS WELL, THOUGH
15 IM NOT CERTAIN OF THAT.
16 r WHAT WAS THE PURPOSE OF THE STANFORD MEETING, AS YOU
17 RECALL? |
18 A. TO IDENTIFY A SITE FOR THE CONDUCT OF THE NEXT PHASE OF
% 19 THIS RESEARCH.
20 Ge AND WHAT WERE THE CONSIDERATIONS INVOLVED IN SELECTION OF A
21 JURISDICTION?
22 A. WELL, THE PRINCIPAL CONSIDERATION WAS TO FIND A
23 JURISDICTION THAT WOULD HAVE AN ADEQUATE SAMPLE SIZE S0 THAT WE
24 COULD DRAW A, PROPER INFERENCES FROM THE DATA.
23 A JURISDICTION WHERE THERE WERE DATA AVAILABLE SO THAT |
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WE COULD COLLECT THE INFORMATION THAT WE NEEDED.
AND ALSO. A JURISDICTION THAT WAS OF INTEREST TO THE
L.D.F. THIS WAS A JOINT DECISION MADE BY THEM AND ME.
@. YOU’VE INDICATED THAT THE DECISIONS ON THE CONDUCT OF THE
RESEARCH WERE YOUR DECISIONS ALONE, IS THAT CORRECT?
A. YES, THE EXECUTION OF THE RESEARCH ONCE THE SITUS WAS
IDENTIFIED WERE MY DECISIONS ALONE, BUT THE QUESTION AS TO WHERE
THE RESEARCH WOULD GO FORWARD WAS A JOINT DECISION.
Q. NOW, WAS ANY DECISION REACHED AT THAT MEETING ABOUT
JURISDICTION?
A. NO.
@. DO YOU RECALL WHEN SUCH A DECISION WAS MADE?
A. IT IS MY RECOLLECTION THAT IT WAS MADE BEFORE THE END OF
THE YEAR. AND THE DECISION WAS MADE TO CONDUCT THE RESEARCH IN
GEORGIA.
@. AFTER, AFTER THAT DECISION HAD BEEN AGREED UPON, WHAT WERE
YOUR NEXT STEPS IN BEGINNING TO UNDERTAKE THIS CHARGING AND
SENTENCING STUDY?
A. MY NEXT STEP WAS TO DEVELOP AN INSTRUMENT THAT WE COULD USE
TO COLLECT THE INFORMATION. BY INSTRUMENT I MEAN SIMPLY THE
QUESTIONNAIRE.
Q. LET ME ASK YOU FIRST, WAS THERE A TIME AT WHICH YOU
DEVELOPED SOME METHODOLOGICAL DESIGN, SAMPLE THAT YOU WERE GOING
TO COLLECT DATA ON?
A. YES, THAT’S RIGHT. WE IDENTIFIED A BASIC RESEARCH DESIGN
261
BALDUS - DIRECT
TO APPROACH THE STUDY, AND SELECTED A UNIVERSE OF CASES. AND
DEVELOPED A SAMPLING STRATEGY.
ol. YOU HAD ALREADY UNDERTAKEN A PROCEDURAL REFORM STUDY
RESEARCH IN GEORGIA AND HERE YOU WERE COMING BACK TO GEORGIA
AGAIN.
WHY DIDN‘T YOU FOLLOW THE IDENTICAL RESEARCH DESIGN?
A. THE FIRST STUDY FOCUSED ON THE LAST TWO STAGES IN THE TRIAL
PROCESS, THAT IS, THE DECISION OF THE PROSECUTOR TO ADVANCE THE
CASE TO A PENALTY TRIAL. AND THE DECISION OF THE JURY.
THE OBJECT OF THIS CASE WAS TO ENLARGE OUR INQUIRY, AND
ENLARGE IT IN THIS WAY. WE WANTED TO BE ABLE TO EXAMINE EARLIER
DECISIONS IN THE PROCESS BY WHICH THE CASES PROCEED THROUGH THE
SYSTEM FROM THE POINT OF INDICTMENT TO THE POINT OF PENALTY
TRIAL.
THAT MEANT WE HAD TO EXPAND OR USE DIFFERENT CASES
BEYOND WHAT WE HAD ORIGINALLY STUDIED IN THE PROCEDURAL REFORM
STUDY.
a. WHAT WAS THE PURPOSE OF EXPANDING THE UNIVERSE IN THAT
DIRECTION TO CAPTURE THESE EARLIER DECISIONS?
A. THE PURPOSE WAS TO ENABLE US TO ESTIMATE RACIAL EFFECTS
THAT WERE THE PRODUCT OF THE COMBINED EFFECTS OF ALL THE
DECISIONS FROM THE POINT OF INDICTMENT TO THE POINT OF THE FINAL
DEATH SENTENCING DECISION.
IN ADDITION, WE WANTED TO BE ABLE TO FOCUS ON EACH
INDIVIDUAL STEP IN THE PROCESS AND BE ABLE TO ESTIMATE RACIAL
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EFFECTS AT EACH ONE OF THOSE POINTS IN THE PROCESS.
Ql. WERE THOSE DESIGN DECISIONS MADE BY THE LEGAL DEFENSE FUND
IN COOPERATION WITH YOU, OR WERE THEY YOUR DESIGN DECISIONS
ALONE?
A. THOSE WERE MY DECISIONS BASED UPON WHAT I THOUGHT WOULD
PRODUCE THE MOST, MOST IMPORTANT SORT OF INQUIRY THAT ONE COULD
CONDUCT.
| THE LITERATURE AT THAT POINT, THE SCIENTIFIC
LITERATURE, CONCERNING SENTENCING WAS EMPHASIZING VERY HEAVILY
THE IMPORTANCE OF LONGITUDINAL STUDIES. THAT IS, BEING ABLE TO
FOCUS ON EACH STAGE IN THE PROCESS. AND THAT WAS MY MAIN
INTEREST IN UNDERTAKING THIS WORK FROM A SCHOLARLY STANDPOINT.
WAS TO BE ABLE TO EXPAND THE WORK IN THAT DIRECTION.
THE OTHER IMPORTANT DIRECTION THAT I HOPED WE COULD
EXPAND THIS WORK WAS WITH RESPECT TO THE MEASURES WE HOPED TO
DEVELOP ON THE RACE OF, PARDON ME. ON THE STRENGTH OF THE
EVIDENCE IN THE CASES.
UP TO THIS POINT, YOUR HONOR, THERE HAS BEEN VERY
LITTLE WORK DONE ON STRENGTH OF THE EVIDENCE IN THE CASES.
THERES ONLY A HANDFUL OF ARTICLES THAT HAVE BEEN PUBLISHED AND
THEY“ RE QUITE RUDIMENTARY. NO SYSTEMATIC SERIES UP TO THIS
POINT HAD BEEN DONE IN TERMS OF MEASURING THE STRENGTH OF THE
EVIDENCE, AND WE BELIEVED THAT IT WAS CRITICAL IN THIS STUDY TO
BE ABLE TO DEVELOP GOOD MEASURES OF THE STRENGTH OF THE
EVIDENCE, AND THAT WAS A FURTHER CHALLENGE IN THIS STUDY BECAUSE
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BALDUS ~ DIRECT
IF WE WERE GOING TO GO BACK AND LOOK AT THOSE EARLIER DECISIONS.
-
2 WE CONSIDERED IT IMPORTANT TO BE ABLE TO HAVE ADEQUATE MEASURES
3 ON THOSE CHARACTERISTICS.
4 @. WHEN WE REACH DISCUSSION OF THE QUESTIONNAIRE THAT YOU
5 DESIGNED ITSELF. I“M GOING TO ASK YOU IN MORE DETAIL TO INDICATE
& WHERE THOSE STRENGTH OF THE EVIDENCE MEASURES ARE PRESENT.
4 7 NOW. I WANT TO, BEFORE WE GET TO THAT, ASK YOU A FEW
B QUESTIONS ABOUT THE UNIVERSE OF CASES ON WHICH YOU WERE GOING TO
9 CONDUCT RESEARCH.
10 CAN YOU DEFINE OR DESCRIBE FOR US THAT UNIVERSE?
11 A. YES. THE UNIVERSE THAT WE SETTLED ON CONSISTS OF ALL
12 OFFENDERS WHO WERE CONVICTED OF MURDER, OF VOLUNTARY
13 MANSLAUGHTER. AND WHO WERE ARRESTED FOR THEIR CRIME BEFORE
14 DECEMBER 31. 1978,» AND ALSO HAD A CRIME THAT OCCURRED AFTER
15 MARCH 28, 1973, WHICH IS THE EFFECTIVE DATE OF THE POST-FURMAN
16 GEORGIA STATUTE.
17 Go. NOW DO THESE INCLUDE PEOPLE —
18 THE COURT: WHAT WAS THAT LAST DATE?
% 19 THE WITNESS: THAT THIS UNIVERSE IS LIMITED ALSQ TO
20 PEOPLE WHOSE HOMICIDE OCCURRED AFTER MARCH 28, 1973, WHICH IS
21 THE EFFECTIVE DATE OF THE NEW GEORGIA STATUTE FOLLOWING THE
22 DECISION OF FURMAN V. GEORGIA.
23 BY MR. BOGER:
248 Qe. DOES THIS INCLUDE ONLY PEOPLE INDICTED FOR MURDER?
23 A. IT TURNS OUT THAT OF THAT POPULATION OF PEOPLE, WHICH WAS
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ABOUT TWENTY-FIVE HUNDRED PEOPLE, THAT 150 OF THEM HAD
ORIGINALLY BEEN INDICTED FOR VOLUNTARY MANSLAUGHTER, BUT THE
REST OF THEM, ABOUT 95 PERCENT OF THEM. HAD ORIGINALLY BEEN
INDICTED FOR MURDER.
@. AND DID THIS STUDY FOLLOW THOSE CASES WHETHER OR NOT THEY
RESULTED IN A CONVICTION OF MURDER OR A CONVICTION FOR VOLUNTARY
MANSLAUGHTER?
A. YES. THE PURPOSE OF THE RESEARCH DESIGN WAS TO ENABLE US TO
FOLLOW THE FLOW OF CASES THROUGH THE SYSTEM. AND TRACK THOSE
CASES THAT WENT OUT ON VOLUNTARY MANSLAUGHTER. PLEAS OR
CONVICTIONS, THOSE THAT WENT OUT ON MURDER PLEAS. OR MURDER
CONVICTIONS, WHERE DEATH WAS NOT SOUGHT AS PUNISHMENT, AND TO
END UP WITH THE CASES WHERE DEATH WAS SOUGHT AS A PUNISHMENT
AFTER CONVICTION.
@. DID YOU INCLUDE ANY --
THE COURT: SO THE UNIVERSE IS ALL OFFENDERS INDICTED
FOR, NOT CONVICTED OF.
THE WITNESS: NO» YOUR HONOR, THE ACTUAL UNIVERSE THAT
WE WERE ABLE TO GET INFORMATION ON CONSISTED ONLY OF PEOPLE WHO
WERE CONVICTED OF ONE OF THOSE CRIMES. BECAUSE WE WERE
RESTRICTED IN COLLECTING INFORMATION TO PEOPLE WHO WERE ACTUALLY
IN THE STATE PENITENTIARY SYSTEM. AND THERE OBVIOUSLY WERE SOME
PEOPLE WHO WERE INDICTED FOR MURDER OR VOLUNTARY MANSLAUGHTER
WHO WERE LATER CONVICTED OF A LESSER INCLUDED OFFENSE OF ONE
SORT OR ANOTHER OR MAY HAVE BEEN ACQUITTED, AND THOSE PEOPLE ARE
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NOT IN OUR UNIVERSE --
THE COURT: ALL RIGHT.
THE WITNESS: -—— FOR PURPOSES OF THIS STUDY.
BY MR. BOGER:
GQ. YOU MENTIONED A TOTAL NUMBER OF CASES THAT WHILE NOT BEING
DEFINED BY THIS DESCRIPTION, BUT WHAT -- DO YOU RECALL WHAT THAT
NUMBER WAS?
A. THE, YES, IT’S 2484 CASES,» I BELIEVE.
Q. NOW. IN YOUR PROCEDURAL REFORM STUDY. YOU COLLECTED DATA ON
ALL 594 PEOPLE WHO MET THE CRITERIA FOR INCLUSION IN THE
UNIVERSE.
DID YOU ADOPT THE SAME PROCEDURE IN THE CHARGING AND
SENTENCING STUDY?
A. NO, WE DID NOT.
IN THIS STUDY WE ADOPTED THE SAMPLING PROCEDURE. THE
IDEA WAS THAT WE HAD INSUFFICIENT RESOURCES TO COLLECT
INFORMATION ON THAT LARGE A GROUP OF CASES AND AS IS GENERALLY
DONE IN SIMILAR SITUATIONS IN SURVEY RESEARCH. ONE DRAWS A
SAMPLE OF THE POPULATION, AND THEN MAKES INFERENCES ABOUT THE
LARGER UNIVERSE AND ABOUT THE PROCESS THAT THEY WENT THROUGH. ON
THE BASIS OF THE SAMPLE. AND THAT’S WHAT WE DID IN THIS CASE.
Qe. LETS BE CLEAR FOR THE RECORD. WHAT IS A SAMPLE, AND HOW
DOES ONE DRAW A SAMPLE?
A. A SAMPLE IS MERELY A SUBPOPULATION OF A LARGER GROUP OF
CASES IN WHICH YOU HAVE A PRINCIPAL INTEREST. AND ONE DRAWS
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BALDUS - DIRECT
THIS SUBPOPULATION THROUGH ESTABLISHED SCIENTIFIC PROCEDURES.
THE PRINCIPAL COMPONENT OF WHICH IS THAT THEY ARE DRAWN
RANDOMLY. THAT ASSURES THAT YOU GET A REPRESENTATIVE SELECTION
OF CASES TO EXAMINE.
Ql. WHATS THE PURPOSE OF EMPLOYING THE, THESE STANDARDIZED
PROCEDURES?
A. THE PURPOSE OF IT IS TO INSURE THAT THE SAMPLE THAT YOU
HAVE IS REPRESENTATIVE OF THE LARGER POPULATION FROM WHICH THE
SAMPLE WAS DRAWN.
a. WHAT DOES THAT PERMIT YOU TO DO, IF ANYTHING?
A. YOU CAN MAKE INFERENCES THEN, FROM LOOKING AT THE SAMPLE
YOU CAN MAKE INFERENCES ABOUT WHAT THE CHARACTERISTICS OF THE
LARGER POPULATION ARE FROM WHICH THE SAMPLE WAS SELECTED.
I MEAN IF YOU DRAW A SAMPLE THAT HAS A CERTAIN
PERCENTAGE OF ARMED ROBBERIES INVOLVED IN IT AS CONTEMPORANEOUS
OFFENSES WITH THE HOMICIDE, SAY TWENTY PERCENT. YOU’RE ABLE TO
MAKE AN ESTIMATE OF WHAT THAT POPULATION OF ARMED ROBBERIES,
CONTEMPORANEOUS OFFENSES, IS IN THE LARGER UNIVERSE OF CASES.
YOU‘RE ABLE TO MAKE ESTIMATES.
Q. ARE THERE STATISTICAL PROCEDURES THAT WOULD PERMIT ONE TO
DEVELOP A CERTAIN DEGREE OF CONFIDENCE IN THE ACCURACY OF THE
SAMPLE?
Fra YES, THERE ARE, AND WE USED SUCH PROCEDURES THROUGHOUT THE
STUDY.
Qe. ALL RIGHT, WELL TALK ABOUT THOSE MORE LATER.
2
BALDUS - DIRECT
‘DID YOU FOLLOW THESE ESTABLISHED SCIENTIFIC PROCEDURES
TY
IN DRAWING YOUR SAMPLE FOR THE CHARGING AND SENTENCING STUDY?
A. YES, THE DETAILS OF THE SELECTION OF THE SAMPLE WERE
UNDERTAKEN BY MY COLLEAGUE, PROFESSOR WOODWORTH, BUT I CAN SAY
THAT THE GENERAL STRATEGY OF THE SAMPLING PLAN WAS TO STRATIFY
THE CASES. WHAT I MEAN BY THAT IS WE STRATIFIED THE CASES ON
TWO DIFFERENT DIMENSIONS.
FIRST, WE BROKE THE CASES DOWN IN TERMS OF WHETHER THEY
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WERE DEATH SENTENCE. WHETHER THEY WERE MURDER CASES WITH A LIFE
SENTENCE OR WHETHER THEY WERE VOLUNTARY MANSLAUGHTER CASES.
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13 A. THAT“S IN TERMS OF THE OUTCOME. THAT’S AT THE TIME OF
14 CONVICTION AND SENTENCE.
15 SO WE LOOKED AT THE OUTCOME OF THE CASES AND BROKE THEM
146 DOWN INTO 3 CATEGORIES. AND OUR OBJECTIVE WAS TO GET A
17 REPRESENTATIVE SELECTION FROM EACH OF THOSE CATEGORIES, SO WE
18 STRATIFIED ON THAT DIMENSION.
& 19 ol. LET’S BE SURE, AND PROFESSOR WOODWORTH WILL GIVE MORE
20 TESTIMONY ON THIS, BUT JUST FOR CLARITY AT THIS POINT. WHAT DO
21 YOU MEAN BY STRATIFIED?
22 A. THAT 1S, WE WENT AT THE OUTSET AND WE DREW A RANDOM SAMPLE.
23 AND WE DREW A RANDOM SAMPLE OF MURDER CASES. TWENTY-FIVE PERCENT
24 RANDOM SAMPLE OF MURDER CASES, WE DREW A TWENTY-FIVE PERCENT
23 RANDOM SAMPLE OF MURDER CASES WITH LIFE SENTENCES AND THEN A
268
BALDUS - DIRECT
1 RANDOM SAMPLE OF VOLUNTARY MANSLAUGHTER CASES.
2 THAT'S THE PROCESS KNOWN AS STRATIFICATION. YOU
3 RESTRICT YOUR SAMPLING PROCEDURE TO A CERTAIN SUBSET OF CASES,
4 AND ONE OF THE PURPOSES OF THAT IS TO INSURE WE HAVE IN CUR
3 FINAL SAMPLE A GOOD REPRESENTATIVE, REPRESENTATION OF CASES FROM
6 EACH OF THOSE CATEGORIES.
a 7 TO ILLUSTRATE IT, IN THIS SAMPLE THAT WE DREW. WE HAD
8 ONLY A HUNDRED DEATH SENTENCE CASES. IF WE HAD NOT STRATIFIED
9? IN THIS WAY, THERE IS A POSSIBILITY WE WOULD HAVE SO FEW DEATH
10 SENTENCING CASES IT WOULD BE HARD TO MAKE INFERENCES. THAT IS,
11 WHEN YOU DRAW A RANDOM SAMPLE OUT OF TWENTY-FIVE HUNDRED CASES
12 AND YOU ONLY HAVE A HUNDRED DEATH SENTENCE CASES, THERE’S A
13 CHANCE YOU WOULD HAVE ONLY A HANDFUL OF DEATH SENTENCE CASES AND
14 THEREFORE YOU WOULDN’T BE ABLE TO MAKE ANY INFERENCES ABOUT HOW
15 THEY WERE TREATED VIS-A-VIS THE OTHER CASES. SO0 THAT THE
16 STRATIFIED SAMPLING PROCEDURES ENABLE YOU TO GET MORE
17 INFORMATION, OR GET INFORMATION ABOUT EACH OF THESE SUBGROUPS
18 THAT WILL ENABLE YOU TO MAKE COMPARISONS. |
% 17? Q. DOES THE PROCESS OF STRATIFICATION ITSELF VIOLATE ACCEPTED
20 PROCEDURES OR METHODS --
21 A. YES, 1T7’S NILELY =
22 a. EXCUSE ME, PROFESSOR BALDUS.
23 A. YES, SIR.
24 QA. 1 ASKED DOES THE PROCESS OF STRATIFICATION VIOLATE ACCEPTED
23 PROCEDURES OR STANDARDS FOR THE CONDUCT OF THIS RESEARCH? R
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BALDUS - DIRECT
A. NO. IT’S A GENERALLY ACCEPTED PROCEDURE FOR THE SELECTION
OF SURVEY SAMPLES.
QA. ALL RIGHT. ARE THERE IN FACT METHODS OR PROCEDURES THAT
ONE FOLLOWS IN STRATIFYING THAT ARE ACCEPTED --
A. YES.
Q. =— THROUGHOUT THE PROFESSION?
A. YES, TO THE BEST OF MY KNOWLEDGE. AND ON THE BASIS OF
THAT STATEMENT, I HAVE TO DEFER TO MY COLLEAGUE. PROFESSOR
WOODWORTH.
ol. ALL RIGHT, YOURE IN THE MIDDLE OF DESCRIBING ONE KIND OF
STRATIFICATION, STRATIFICATION BY SENTENCING OUTCOME.
WAS THERE ANOTHER LEVEL OF STRATIFICATION OF THESE
CASES?
A. YES, THE OTHER LEVEL OF STRATIFICATION WAS ON THE STATE
JUDICIAL CIRCUIT LEVEL. IT WAS OUR DESIRE IN THIS RESEARCH TO
INSURE THAT WE HAD GOOD REPRESENTATION FROM ALL SECTIONS OF THE
STATE. CASES FROM EVERY PART OF THE STATE. SO, TO ACHIEVE
THAT, WE DEVELOPED A SAMPLING STRATEGY THAT LED US INTO EACH
CIRCUIT AND TO COLLECT A MINIMUM OF 18 CASES IN EACH CIRCUIT,
BECAUSE WHEN YOU COMMENCE THE ORIGINAL SAMPLE, IF YOU DO JUST A
STRAIGHT RANDOM SAMPLE, EVEN IF STRATIFIED IN TERMS OF THE
SENTENCING OUTCOMES, THE RESULT MIGHT BE THAT SOME OF THE
SMALLER CIRCUITS WILL BE BADLY UNDERREPRESENTED IN THE SAMFLE.
AND WE FELT IT IMPORTANT TO INSURE GOOD COVERAGE OF THE WHOLE
STATE AND THEREFORE WE SUPPLEMENTED THE CIRCUITS WHERE THE
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BALDUS - DIRECT
ORIGINAL RANDOM SAMPLE HAD NOT PRODUCED AT LEAST 13 CASES.
THE COURT: LET ME ASK YOU THERE, DOCTOR BALDUS, FULTON
COUNTY. OF COURSE. CONTRIBUTES AN ENORMOUS SHARE OF ANY SAMPLE,
I“M SURE, INVOLVING CONVICTED FELONS.
DID THE SAMPLE THAT YOU TOOK. FOR EXAMPLE, FROM THE
RURAL COUNTIES CAUSE ANY DISPROPORTIONATE REPRESENTATION OF
RURAL VERSUS URBAN OR RURAL VERSUS FULTON COUNTY OR WOULD YOUR
SAMPLE THEN BE WEIGHTED BY CONTRIBUTION FROM AN AREA ——
THE WITNESS: YES, THE SAMPLES WERE WEIGHTED. YOUR
HONOR. THAT’S AN ADDITIONAL PROCEDURE THAT’S USED WHEN ONE
CONDUCTS THIS SORT OF RESEARCH.
THE COURT: SO IN TOTO, THE NUMBER COMING FROM FULTON
COUNTY IN YOUR SAMPLE WOULD BE REPRESENTATIVE OF THE UNIVERSE OF
THE PROPORTION THAT FULTON COUNTY CONTRIBUTES TO THE UNIVERSE.
THE WITNESS: NOT IN THE SAMPLE. BUT IN THE ANALYSIS.
THE COURT: YOU ADDED A WEIGHTING FACTOR AFTER YOU DID
THE ANALYSIS?
THE WITNESS: YES. YOUR HONOR. AND WE HAVE AN EXHIBIT
THAT DEMONSTRATES PRECISELY HOW THAT’S DONE, YOUR HONCR.
MR. BOGER: ALL RIGHT, AND WE“LL GET IT COVERED IN SOME |
DETAIL, YOUR HONOR.
BY MR. BOGER:
Gl. LET ME ASK YOU TO TURN TO DB-37, FOR IDENTIFICATION,
PROFESSOR BALDUS, AND IDENTIFY IT. IF YOU CAN?
Ae YES, DB-37 IS ENTITLED "SAMPLING AND WEIGHTING PROCEDURE
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BALDUS - DIRECT
FOR THE CHARGING AND SENTENCING STUDY." THIS IS A DOCUMENT
WRITTEN BY GEORGE WOODWORTH IN COLLABORATION WITH ME WHICH
DESCRIBES THE GENERAL OUTLINES OF THE SAMPLING FLAN.
THIS DOCUMENT IS ACTUALLY THE INTRODUCTION OF A MORE
EXTENSIVE REPORT THAT WAS PREPARED BY PROFESSOR WOODWORTH. IN
COLLABORATION WITH ME.
Ql. ALL RIGHT.
MR. BOGER: YOUR HONOR, WE INTENDED TO INTRODUCE
THROUGH PROFESSOR WOODWORTH THE ENTIRE SAMPLING PLAN, BUT MOVE
THE ADMISSION OF DB-37 HERE WHICH PROFESSOR BALDUS HAS TESTIFIED
HE COLLABORATED IN AS PART OF THE BASIC OVERVIEW FOR THE
UNIVERSE AND SAMPLE OF THE CHARGING AND SENTENCING STUDY.
MS. WESTMORELAND: YOUR HONOR, I WOULD OBJECT TO DB-37,
PARTICULARLY IN LIGHT OF THE STATEMENT THAT THE ENTIRE SAMPLING
PLAN IS GOING TO BE INTRODUCED AT A LATER PERIOD. I THINK IT’S
CUMULATIVE.
FURTHERMORE, THIS HAS GEORGE WOODWORTH’S NAME ON IT.
AND PROFESSOR BALDUS‘ NAME DOES NOT APPEAR ON THE DOCUMENT. HE
HAS TESTIFIED AS TO THE GENERAL PURPOSE OF SAMPLING DESIGN AND I
THINK THAT IS SUFFICIENT FOR THE PURPOSE AT THIS TIME. THE
DOCUMENT DOES NOT APPEAR TO BE RELEVANT AT THIS POINT.
THE COURT: DID THIS DOCUMENT EXIST AT THE TIME THE
SAMPLE WAS DRAWN?
THE WITNESS: NO, YOUR HONOR. IT DID NOT.
THE COURT: I SUSTAIN THE OBJECTION.
24
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BALDUS - DIRECT
BY MR. BOGER:
(A PROFESSOR BALDUS. ONCE YOU HAD IDENTIFIED A SAMPLE OF CASES
OR SAMPLING PLAN, HOW DID YOU MOVE TO THE CHOICE OF INDIVIDUAL
CASES?
EXACTLY WHAT WAS THE PROCESS BY WHICH YOU MOVED FROM
SOME THEORY OF SAMPLE TQ THE CASES THAT YOU ACTUALLY LOOKED AT?
A. WE OBTAINED FROM THE DEPARTMENT OF CORRECTIONS A COMPUTER
LISTING OF ALL OFFENDERS IN THEIR FILES WHO MET THE
QUALIFICATIONS FOR INCLUSION IN THE STUDY THAT I DESCRIBED
EARLIER. |
AND WE THEN ORGANIZED THOSE NAMES BY CIRCUITS AND THEN
PROFESSOR WOODWORTH DREW A RANDOM SAMPLE OF THOSE CASES. AND
THEN HE SPECIFIED THE PROCEDURE BY WHICH WE WOULD SUPPLEMENT
THOSE CASES TO INSURE FULL COVERAGE OF ALL SECTIONS OF THE
STATE.
THE COURT: YOUR SOURCE DATA AGAIN WAS D.O.R.7?
THE WITNESS: THE SOURCE OF THE NAMES. YOUR HONOR. WAS
D.0.R.
LET ME ADD, HOWEVER, THAT WE SUPPLEMENTED THAT SOURCE
OF INFORMATION WITH RESPECT TO DEATH SENTENCE CASES.
AS I MENTIONED TO YOU EARLIER, THE DEATH SENTENCE CASES
ENTER THE DEPARTMENT OF CORRECTIONS SYSTEM LESS QUICKLY THAN DO
LIFE SENTENCE CASES. SO WE DID AN EXTENSIVE SEARCH OF THE
GEORGIA REPORTS FOR CASES THAT HAD GONE TO A PENALTY TRIAL. THAT
FELL WITHIN THE FRAMEWORK OF OUR SAMPLE. BUT THAT HAD NOT BEEN
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BALDUS - DIRECT
PICKED UP YET IN THE DEPARTMENT OF CORRECTIONS. I.
2 WE ALSO MADE INQUIRY IN THE SUPREME COURT OF GEORGIA.
3 SPECIFICALLY ED GATES MADE INQUIRY, TO THE STAFF OF THE SUPREME
4 COURT TO SEE WHETHER THERE WERE ANY CASES PENDING IN THE SYSTEM
S THAT MIGHT FALL WITHIN THE FRAMEWORK OF OUR STUDY.
6 AND AS A RESULT OF THAT SUPPLEMENTAL INVESTIGATION. WE
» 7 PRODUCED 28 DEATH SENTENCE CASES WHICH WERE ADDED TO THE FINAL
i SAMPLE, AS WELL AS 3 OTHER CASES THAT HAD GONE TO A PENALTY
? TRIAL BUT ENDED UP IN A LIFE SENTENCE.
10 THE COURT: THESE WERE ADDED TO THE SAMPLE OR TO THE
11 UNIVERSE?
12 THE WITNESS: WELL. THEY WERE ADDED TO THE SAMPLE. AND
13 THEY WERE ALSO ADDED TO THE UNIVERSE. AS WE DEFINED IT.
14 THE UNIVERSE AS WE ORIGINALLY DEFINED IT WAS DEFINED BY
15 BY THE DOCUMENTS PRODUCED BY THE D.O.R.. BUT AS WE FOUND THESE
16 PEOPLE. WE CONCEPTUALIZED THEM AS FALLING WITHIN THE UNIVERSE.
17 BECAUSE HAD THE DEPARTMENT OF CORRECTIONS HAD THESE PEOPLE IN
18 THEIR SYSTEM AT THE TIME, THEN THEY WOULD HAVE BEEN INCLUDED ON
19 THAT LIST AS WELL.
20 BY MR. BOGER:
21 a. NOW. YOU’VE DEVELOPED RESEARCH DESIGN, YOUVE GOT A
22 SAMPLING PLAN, YOUVE DRAWN THE SAMPLE AND HAVE ACTUAL CASES ON
23 WHICH TO COLLECT DATA.
24 DID YOU AT SOME POINT THEREAFTER DEVELOP A
23 QUESTIONNAIRE TO COLLECT THAT DATA?
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BALDUS - DIRECT
1 jas ves.
2 | @. HOW WAS THAT DONE?
3 |A. WE STARTED WITH THE QUESTIONNAIRE THAT HAD BEEN USED IN THE
4 | PROCEDURAL REFORM STUDY, AND SOUGHT TO EXPAND IT SO IT WOULD BE
s | MORE SUITABLE FOR THIS PROJECT. AND IT WAS AT ABOUT THIS TIME
4 | THAT 1 ENGAGED EDWARD GATES TO UNDERTAKE SUPERVISION OF THE DATA
% 2 | COLLECTION EFFORT THAT WE WERE PLANNING FOR THE SUMMER OF 1981
8 |HERE IN GEORGIA.
9 AND PREPARATORY TO THAT. ED CAME TO IOWA, SPENT ABOUT
10 | SIX WEEKS WORKING WITH ME ON THE DEVELOPMENT OF THE
11 | QUESTIONNAIRE AS WELL AS GENERAL PLANNING ON THE LOGISTICS AND
12 | DETAILS OF HOW WE WERE GOING TO COLLECT THE DATA IN GEORGIA.
13 AND OUR FIRST TASK WAS TO MODIFY THE QUESTIONNAIRE.
14 | AND THE PRINCIPAL —-
45 |@. WHEN YOU SAY MODIFY THE QUESTIONNAIRE, YOU MEAN MODIFY THE
16 | PROCEDURAL REFORM QUESTIONNAIRE? |
17 |A. YES, THAT WAS THE DOCUMENT THAT WE HAD FINISHED THE LAST |
18 STUDY WITH AND WE TOOK OFF FROM THAT POINT.
19 AND OUR OBJECTIVE, OUR OBJECTIVE IN MODIFYING IT WAS
20 THREEFOLD. ONE WAS TO INCLUDE ADDITIONAL INFORMATION WITH
21 RESPECT TO LEGITIMATE AGGRAVATING AND MITIGATING FACTORS THAT WE
22 HAD FOUND MIGHT PROPERLY BE ADDED TO THE QUESTIONNAIRE ON THE
23 BASIS OF OUR PRIOR EXPERIENCE.
24 IN THAT REGARD, OUR SECOND AND PARTICULAR OBJECTIVE WAS
23 TO EXPAND THE COVERAGE OF THE MATERIAL RELATING TO PRIOR RECORD.
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AND THEN FINALLY WE WANTED TO ENLARGE THE SECTION
CONCERNING STRENGTH OF THE EVIDENCE. AS I INDICATED TO YOU
EARLIER, THE PROCEDURAL REFORM STUDY HAD ONLY A FEW QUESTIONS
THAT BORE ON STRENGTH OF THE EVIDENCE.
WE HOPED TO BEEF UP THE QUESTIONNAIRES SUBSTANTIALLY IN
THAT DIRECTION, WHICH WE DID.
Wd. HOW LONG DID THE PROCESS OF DEVELOPING A QUESTIONNAIRE
TAKE?
A. WELL, IT TOOK, TOOK THREE MONTHS. AT LEAST.
| Qa WAS ANYONE ELSE INVOLVED IN ITS DEVELOPMENT BESIDES
YOURSELF, AND EDWARD GATES?
A. WELL. GEORGE WOODWORTH WAS INVOLVED, AS WAS CHARLES
PULASKI, BUT ALSO THE ATTORNEYS, LEGAL DEFENSE FUND WOULD
RECEIVE DRAFTS OF THE GUESTIONNAIRE AS WE WORKED THROUGH IT.
(r DID THEY MAKE ANY SUGGESTIONS FOR CHANGES?
A YES. THE SUGGESTIONS THAT THEY MADE CONCERNED SUCH MATTERS
AS WHETHER A PARTICULAR NEW VARIABLE SHOULD BE INCLUDED. ON THE
BASIS OF THEIR EXPERIENCE, THEY BELIEVED THAT IT WOULD BE
AFPROPRIATE TO CONSIDER AN ADDITIONAL VARIABLE. FOR EXAMPLE, I
REMEMBER ONE TIME MR. BOGER SUGGESTED THAT ON THE BASIS OF HIS
EXPERIENCE IN SOME RECENT CASES THAT HE HAD HANDLED THAT THE
VARIABLE SHOOTOUT WOULD BE AN APPROPRIATE ONE TO INCLUDE ON THE
QUESTIONNAIRE.
WE HAD IN THE EARLIER QUESTIONNAIRE INFORMATION THAT
BORE ON THAT FROM A NUMBER OF DIFFERENT DIRECTIONS BUT IT DIDN'T
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BALDUS - DIRECT
SPEAK TO THAT SITUATION DIRECTLY. THOSE ARE THE KINDS OF
SUGGESTIONS THAT WERE MADE, AND MOST OF THEM WE ADDED INTO THE
QUESTIONNAIRE AS WE CONSIDERED THEM REASONABLE PROPOSALS.
@. WHO MADE THE FINAL DECISIONS ON THEIR INCLUSION?
A. I MADE ALL THE FINAL DECISIONS ON WHAT WENT IN.
@. DID YOU SOLICIT ADVICE OR SUGGESTIONS FROM ANYONE OTHER
THAN ED GATES, OR THE LEGAL DEFENSE FUND OR YOUR OTHER
CO-AUTHORS? | :
A. VES, THERE WERE A NUMBER OF COLLEAGUES AT THE UNIVERSITY OF
IOWA THAT WERE AWARE OF THIS PROJECT AND HAD A KEEN INTEREST IN
IT, AND I SOLICITED THEIR ADVICE. AND ASKED THEM TO READ THE
QUESTIONNAIRE, AND GET THEIR RESPONSES.
AND CHARLES PULASKI,» IF MY RECOLLECTION IS CORRECT, DID
THE SAME THING AT ARIZONA STATE UNIVERSITY WHERE HE WAS LOCATED
AT THAT TIME.
@. WHAT WAS YOUR PURPOSE IN SOLICITING THESE SUGGESTIONS FROM
OTHER PEOPLE?
A. WELL, THE GOAL IN THE CONSTRUCTION OF THIS QUESTIONNAIRE AS
WAS THE GOAL IN THE CONSTRUCTION OF OUR PREVIOUS QUESTIONNAIRES
WAS TO INCLUDE ALL INFORMATION THAT WE THOUGHT WOULD BE
AVAILABLE IN THE FILES THAT WE WOULD BE CONSULTING THAT MIGHT BE
RELEVANT IN EVALUATING THE DEATH WORTHINESS OR GENERALLY THE
SERIOUSNESS OF CASES. BECAUSE IN THIS STUDY WE WERE INTERESTED IN
MORE THAN SIMPLY ANALYZING THE DEATH SENTENCING QUESTION. THIS
DATA SET WE WERE PLANNING TQ COLLECT ALLOWS US TO MAKE
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DIFFERENTIATIONS BETWEEN THE PEOPLE THAT WERE PICKED FOR
VOLUNTARY MANSLAUGHTER AS OPPOSED TO MURDER: DIFFERENTIATE
BETWEEN PEOPLE WHO RECEIVED DIFFERENT SENTENCES AMONG THE
POPULATION OF PEOPLE CONVICTED OF VOLUNTARY MANSLAUGHTER.
FOR MY PROFESSIONAL PURPOSES. THE FOCUS ON CAPITAL
PUNISHMENT WAS ONLY ONE PART OF THE ENTIRE ANALYSIS THAT I
PROPOSED TO DO ON THIS DATA SET. $0 WE WERE INTERESTED IN
COLLECTING A LOT OF INFORMATION THAT WOULD FOCUS ON THE OVERALL
CULPABILITY LEVELS OF THE CASES WITH RESPECT TO MANY DECISIONS
IN THE SYSTEM. NOT SIMPLY THE QUESTION OF DEATH WORTHINESS.
Qe DID ED GATES BRING ANY PARTICULAR EXPERTISE OR HELPFULNESS
TO THE DEVELOPMENT OF THE QUESTIONNAIRE?
A. YES, HE BROUGHT A TREMENDOUS KNOWLEDGE OF TWO THINGS. ONE
WAS THE EXPERIENCE OF AND THE PROBLEMS CONCERNED WITH CODING THE
INSTRUMENT IN THE FILES THAT WE WERE GOING TO BE WORKING FROM.
Q. WHERE DID HE DRAW THAT EXPERIENCE?
A. ED HAD WORKED IN GEORGIA FOR THE LAST FOUR MONTHS AND HAD
CODED OVER TWO HUNDRED CASES IN THE FILES THAT WE WERE PLANNING
TO OBTAIN OUR INFORMATION FROM IN THE CHARGING AND SENTENCING
STUDY, SO HE HAD ——
Wd. HE HAD CODED FOR WHAT STUDY?
A. THE PROCEDURAL REFORM STUDY.
a. ALL RIGHT.
A. AND HE HAD A WEALTH OF EXPERIENCE ABOUT THE PRACTICAL
PROBLEMS OF CODING QUESTIONNAIRES. NOT IN GENERAL. BUT ON THIS
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BALDUS - DIRECT
PARTICULAR DATA SET AND WITH RESPECT TO THIS PARTICULAR
QUESTIONNAIRE, OR EXTENSION OF IT.
THE SECOND POINT WAS THAT ED KNEW INTIMATELY WHAT
INFORMATION WAS AVAILABLE IN THE FILES THAT, BOTH IN THE FILES
OF THE PAROLE BOARD AND ALSO IN THE FILES OF THE GEORGIA SUPREME
COURT. SO THAT ANYTIME A SUGGESTION WAS MADE THAT A PARTICULAR
VARIABLE SHOULD BE INCLUDED IN THE QUESTIONNAIRE, WE WERE ABLE
INFORMATION THE CODERS WOULD LIKELY ENCOUNTER WHEN THEY
COMMENCED THE ACTIVITY THAT SUMMER.
SO I WOULD STUDY THE LITERATURE AND COME UP WITH IDEAS
AND ED WOULD DRAFT THESE IDEAS IN TERMS OF WHAT HIS EXPERIENCE HAD
BEEN.
Ql. LET ME ASK YOU AT THIS TIME TO TURN TO WHAT’S BEEN MARKED
AS DB-38 IDENTIFICATION AND ASK IF YOU CAN IDENTIFY THE
DOCUMENT?
A. YES, DB-338 IS THE QUESTIONNAIRE THAT WAS USED TO COLLECT
INFORMATION IN THE PAROLE BOARD IN THE SUMMER OF 1981 FOR THE
CHARGING AND SENTENCING STUDY.
A. THATS YOUR SECOND STUDY?
A. THATS RIGHT.
Q. NOW. I NOTICE AT THE VERY TOP OF THAT DOCUMENT ON ITS FIRST
PAGE, THERE IS SOMETHING WRITTEN IN IN PENCIL OR PEN.
CAN YOU TELL ME WHAT THAT ISY
Ae YES. THAT DESIGNATES THIS IS THE LAST VERSION OF THE
24
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BALDUS - DIRECT
QUESTIONNAIRE.
IT’S UP AT THE TOP, YOUR HONOR, --
THE COURT: WHERE IT SAYS "SUP?"
THE WITNESS: "SUP." EXACTLY.
WHAT HAPPENED WAS, WE DRAFTED THE CRIGINAL
QUESTIONNAIRE IN. I THINK IT WAS MAY OF 1981, AND THEN WE RAN
OFF AN ENORMOUS NUMBER OF COPIES, EIGHT HUNDRED OR SO
COPIES, AND BROUGHT THEM TO GEORGIA TO COMMENCE THE CODING
OPERATIONS. AND WE LEARNED THAT THROUGH OVERSIGHT IN TYPING
THAT WE HAD OMITTED THREE OR FOUR VARIABLES. AND THOSE
VARIABLES HAD TO BE WRITTEN IN BY HAND BY THE CODER DURING THE
SUMMER.
FINALLY, WHEN THOSE QUESTIONNAIRES WERE USED UP, WE HAD
ANOTHER EDITION WITH THOSE VARIABLES TYPED IN. AND THATS WHAT
THAT "SUP" MEANS, THAT THIS IS THAT ADDITION.
BY MR. BOGER:
Qa SO THE SAME INFORMATION WAS COLLECTED BOTH ON THE CASES
CODED UNDER THE FIRST VERSION OF THIS QUESTIONNAIRE, AND THE
SECOND VERSION?
A. YES.
Q. BUT IT WAS HANDWRITTEN IN THE FIRST ONE AND TYPED IN THE
SECOND ONE, IS THAT CORRECT?
A. THATS CORRECT.
Re IF WE COULD, LET’S GO THROUGH THIS QUESTIONNAIRE. NOT IN
GREAT DETAIL. BUT JUST IN GENERAL, SO THAT THE FORMAT OF IT IS
PETS SI ISS ELL ES, Le A —— o———— rt — +. Sio—" F———— —
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CLEAR?
Ae. THE FIRST PAGE OF THE QUESTIONNAIRE GIVES A PROCEDURAL
OVERVIEW, WHERE THE OFFENSE OCCURRED. STATE, COUNTY OF
CONVICTION, WHO THE PARTICIPANTS WERE. AND THE JUDICIAL PROCESS
THAT HANDLED THE CASE.
PAGE 2 IS DETAILED ACCOUNT OF THE CHARGES THAT WERE
BROUGHT AGAINST THE OFFENDER. AND WHAT THE DISPOSITION OF EACH
OF THOSE CHARGES WAS.
IN MANY OF THESE CASES. THERE ARE MULTIFLE COUNTS,
VARIETY OF OFFENSES CHARGED. AND WE CONSIDERED IT IMPORTANT TO
BE ABLE TO CAPTURE THAT DETAIL.
THE COURT: CRIME ONE, CRIME TWO, THEN, DOES NOT REFER
TO PAST RECORD, IT REFERS TO COUNTS OF THE INDICTMENT?
THE WITNESS: YES, YOUR HONOR, THAT“S RIGHT. THESE ARE
ALL THE OFFENSES CHARGED IN THE INSTANT CASE THAT WERE
ANALYZING.
PAGE 3 AGAIN RELATES TO MORE PROCEDURAL MATTERS.
WHETHER THERE WAS A PENALTY TRIAL, IF THE CASE RESULTED IN A
MURDER CONVICTION.
THEN QUESTIONS 39, CORRECTION, QUESTIONS 40 THROUGH 43
GO TO THE QUESTION OF WHETHER OR NOT THERE WAS A PLEA BARGAIN IN
THE CASE.
BY MR. BOGER:
Qe. LET ME BE CLEAR FOR THE RECORD ON THAT. YOU REFERRED TO
QUESTIONS 40 THROUGH 43. I NOTE NUMBER ON THE LEFT SIDE OF THE
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PAGE AND NUMBERING ON THE RIGHT UNDERNEATH THE FOIL?
A. LET ME CLARIFY, YOUR HONOR.
THE NUMBERS COMING DOWN THE LEFT SIDE OF THE PAGES IN
THIS QUESTIONNAIRE WE REFER TO AS QUESTION NUMBERS.
THE NUMBERS DOWN THE RIGHT SIDE THAT ARE UNDERNEATH THE
BARS THOSE ARE WHAT WE REFER TO AS VARIABLE NUMBERS.
THE COURT: AS WHAT?
THE WITNESS: VARIABLE NUMBERS.
S0, I ACTUALLY MISSPOKE A MOMENT AGO WHEN I REFERRED TO
QUESTION 40. WHAT 1 SHOULD HAVE REFERRED TO WAS VARIABLE 40
WHICH RELATES TO QUESTION 14.
AND VARIABLES 40 THROUGH 43 RELATE TO WHETHER OR NOT
THERE WAS A PLEA BARGAIN OFFERED OR ACCEPTED.
AT THE VERY BOTTOM OF THIS PAGE, THERE IS INFORMATION
THAT APPLIES ONLY TO PENALTY TRIAL CASES, INDICATING WHAT
FACTORS WERE CHARGED, WHAT FACTORS WERE FOUND IF INDEED THERE
HAD BEEN A PENALTY TRIAL IN THE CASE.
THEN THE FINAL BIT OF PROCEDURAL INFORMATION IS ON PAGE
4 THAT RELATES TO WHETHER OR NOT THERE HAD BEEN AN APPEAL AND IF
SO, WHAT THE OUTCOME OF THE APPEAL, AND WHAT THE CITATION IN
THE GEORGIA REPORTS OF THE OPINION WAS.
THEN WE COMMENCE ON 4 WITH CHARACTERISTICS OF THE
DEFENDANT. THIS QUESTIONNAIRE DOES NOT EMBRACE ALL THE RELEVANT
CHARACTERISTICS OF THE DEFENDANT BECAUSE WE INCLUDED IN THE
ULTIMATE FILE INFORMATION FROM THE DEPARTMENT OF CORRECTIONS.
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BUT THIS WAS INFORMATION THAT WAS AVAILABLE IN THE PAROLE BOARD
ABOUT THE CHARACTERISTICS OF THE DEFENDANT, AND IT WAS RICHER
INFORMATION THAN WE COULD FIND IN THE DEPARTMENT OF CORRECTIONS,
AND THATS THE REASON WE HAVE THIS HERE AT THIS STAGE.
ON PAGE &, WE BEGIN AN EXTENSIVE SECTION DEALING WITH
THE PRIOR RECORD OF THE DEFENDANT. VARIABLES 71 THROUGH 80.
AND THEN THAT IS INTERRUPTED ON PAGE 7. YOUR HONOR.
YOU‘LL SEE THERE WHERE THE VARIABLES JUMP FROM 80 TO 131.
THOSE QUESTIONS THERE RELATE FROM 131 TO 134A, RELATE
TO THE GUESTION OF CONTEMPORANEQUS OFFENSES THAT WERE COMMITTED.
THOSE ARE OUT OF ORDER SIMPLY FOR EASE IN COMPLETION OF THE
QUESTIONNAIRE AND THE ADMINISTRATION OF PUTTING THE
QUESTIONNAIRE TOGETHER.
THE FOLLOWING PAGE. 8, PICKS UP AGAIN ON PRIOR RECORD,
AND HERE THESE CODES RELATE TO ACTUAL PRIOR OFFENSES THAT YOU
SEE ON THE TOP OF PAGE 8.
AND ED GATES WILL EXPLAIN TO YOU IN MORE DETAIL.
EVENTUALLY. HOW THE MECHANICS OF COMPLETING THIS ARE, OF COURSE,
YOUR HONOR. I“LL BE DELIGHTED TO ANSWER ANY QUESTIONS YOU HAVE
ABOUT THE MECHANICS OF HOW ONE MIGHT CODE ONE OF THESE, IF 1
COULD PROVIDE THAT INFORMATION NOW.
BUT THIS PROVIDED US WITH THE VEHICLE TO ENTER A VERY
RICH SET OF INFORMATION ABOUT THE PRIOR RECORD OF THE OFFENDER.
ON PAGE 9 WE COMPLETE THE MATERIAL CN THE RECORD OF THE
OFFENDER.
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BOTTOM OF 9 OVER THROUGH PAGE 11. WE PICK UP DETAILED
INFORMATION ON THE FIRST VICTIM IN THE CASE.
BY MR. BOGER:
QA. 1S THERE ROOM IN THIS QUESTIONNAIRE IF THERE WERE MULTIPLE
| VICTIMS TO GIVE INFORMATION ABOUT THE STATUS OF THOSE VICTIMS?
A. YES, WE HAD A SUPPLEMENTAL SCHEDULE FOR MULTI-VICTIM CASES.
THOSE SCHEDULES. YOUR HONOR, ARE AT THE END OF THIS
EXHIBIT, AND THEY INCLUDE A RELATIVELY BRIEF SERIES OF QUESTIONS
CONCERNING THE VICTIM’S CHARACTERISTICS.
THEN PAGE 12. WE START ON THE CHARACTERISTICS OF THE
OFFENSE, AND THESE SECTIONS OF THE QUESTIONNAIRE TRACE,
CORRECTION, TRACK THE. MUCH THE SAME FORMAT THAT WAS USED IN THE
PROCEDURAL REFORM STUDY DEALING WITH THE METHOD OF KILLING.
SPECIAL AGGRAVATING CIRCUMSTANCES OF THE VICTIM ON 14.
THE COURT: WAIT JUST A SECOND.
THE WITNESS: 1 BEG YOUR PARDON, YOUR HONOR.
THE COURT: 1I“M CATCHING UP WITH YOU.
THE WITNESS: OH. THEN 15 --
THE COURT: WAIT JUST A SECOND, LET ME LOOK AT 14.
THE WITNESS: CORRECT.
THE COURT: ALL RIGHT.
THE WITNESS: THEN OVER ON 15 WE HAVE THE SPECIAL
AGGRAVATING FEATURES OF THE OFFENSE. THESE ARE THE FACTORS THAT
ARE MOST RELEVANT TO THE STATUTORY AGGRAVATING CIRCUMSTANCES OF
WANTONLY VILE, AND INHUMAN. THEY“RE ESSENTIAL TO THE
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QUESTIONNAIRE FOR THE PURPOSES OF EVALUATING DEATH SENTENCING
CASES.
THOSE AGGRAVATING FACTORS CONTINUE OVER ONTO PAGE 16»
TOP OF THE PAGE.
AND THEN WE PICK UP THE MATERIAL ON THE
CO-PERPETRATORS. THE NUMBER OF CO-PERPETRATORS.
AND THEN ON PAGE 17, THERE ARE A SERIES OF DETAILED
QUESTIONS WHICH DELINEATE THE OFFENDER‘S ROLE IN THE CRIME,
VIS-A-VIS CO~-PERPETRATORS. WHEN THERE ARE CO-PERPETRATORS
PRESENT.
THE NEXT SECTION, RATHER. PAGE, 18, IDENTIFIES THE
CO-PERPETRATORS BY NAME, THEIR ROLE IN THE VIOLENCE, AND THE
CONTEMPORANEOUS OFFENSE.
ON PAGE 19 WE HAVE INFORMATION CONCERNING DISPOSITION
OF THEIR CASES, WHETHER THEY WERE INVOLVED IN TESTIMONY OR INVOLVED
IN PROCEEDINGS THAT AFFECTED THE INSTANT CASE THAT'S BEING
CODED.
ON PAGE 20 WE HAVE AN OVERVIEW OF THE NUMBER OF PEOPLE
KILLED, BOTH BY THE DEFENDANT AND BY CO-DEFENDANTS, OR RATHER
CO-PERPETRATORS, NUMBER OF PEOPLE INJURED, THE AMOUNT OF FIRING
OF SHOTS.
THEN WE MOVE INTO. ON PAGE 21, WE MOVE INTO MITIGATING
CIRCUMSTANCES. THOSE RELATED TO THE DEFENDANT WERE LAID OUT ON
PAGE 21, THOSE RELATED TO THE BEHAVIOR OF THE VICTIM ARE
PRESENTED ON PACE 22.
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THEN ON PAGE 23 WE HAVE A SECTION THAT DEALS WITH THE
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DEFENDANTS DEFENSE AT THE GUILT TRIAL OR WHETHER OR NOT THE
CASE EVER WENT TO A TRIAL, WHAT THE RECORD SUGGESTED WAS THE
DEFENSE ON THE MATTER OF LIABILITY ASSERTED BY THE DEFENDANT. IF
ONE WAS ASSERTED.
IN SOME CASES. AS VARIABLE 321D THERE INDICATES. IN A
NUMBER OF CASES THERE IS GUILT ADMITTED STRAIGHTAWAY WITH NO
DEFENSE ASSERTED. HOWEVER, IN A MAJORITY OF THE CASES. THE
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DEFENDANT ASSERTS A DEFENSE IN ONE SORT OF WAY OR ANOTHER.
10 THEN AT THE BOTTOM OF 23. WE BEGIN THE SECTION ON THE
11 STRENGTH OF THE EVIDENCE WHICH PROCEEDS FROM 23 ALL THE WAY
12 UNTIL THE END OF THE QUESTIONNAIRE, I BELIEVE.
13 BY MR. BOGER:
14 Q. LET ME ASK YOU BEFORE WE LOOK AT THIS SPECIFICALLY, --=
15 A. YES.
16 Q. -- PROFESSOR BALDUS. YOU TESTIFIED EARLIER THAT THERE WAS
17 VERY LITTLE LITERATURE ON THE STRENGTH OF THE EVIDENCE.
18 HOW DID YOU GO ABOUT. THEREFORE, CONSTRUCTING THIS
& 19 PORTION OF THE QUESTIONNAIRE?
20 Ae. WELL, I READ THE LITERATURE, AND I SPOKE ON THE PHONE WITH
21 THE PEOPLE WHO HAD WORK IN PROGRESS ON THE SUBJECT TO TRY AND
22 FIND OUT WHAT THE LATEST DEVELOPMENTS WERE AND GET COPIES OF
23 THEIR INSTRUMENTS. AND ON THE BASIS OF THAT INQUIRY, I GOT A
24 PICTURE OF WHAT THE STATE OF THE ART WAS, SO TO SPEAK, IN TERMS
23 OF CODING VARIABLES RELATED TO THE STRENGTH OF THE EVIDENCE. AND
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I FOUND THAT STATE OF THE ART WAS NOT TERRIBLY ADVANCED AT THE
MOMENT, AND THEN 1 DREW ON ED’S EXPERTISE ABOUT WHAT INFORMATION
WAS AVAILABLE IN THESE FILES. ACTUALLY WE HAD MORE INFORMATION
AVAILABLE IN THESE FILES THAT RELATE TO THE STRENGTH OF THE
EVIDENCE THAN MOST INVESTIGATORS HERETOFORE WHO HAVE SOUGHT TO
MEASURE STRENGTH OF THE EVIDENCE HAD HAD AVAILABLE TO THEM. SO
I SAW THIS AS AN OPPORTUNITY FOR US TO BE ABLE DEVELOP ON A MUCH
MORE COMPREHENSIVE SET OF MEASURES ON THE STRENGTH OF THE
EVIDENCE THAN HAD BEEN HERETOFORE UNDERTAKEN. THAT WAS THE
BASIC PROCEDURE THAT WAS USED.
QR. DID YOU DRAW ANY RESOURCES OF EXPERTISE, PEOPLE IN THE
CRIMINAL JUSTICE SYSTEM OR OTHERS, ABOUT WHAT MADE FOR STRENGTH
OF THE EVIDENCE?
A. YES. 1 HAD READ A SUBSTANTIAL BODY OF THE LITERATURE,
THERES NOT THAT LARGE LITERATURE, BUT THERE ARE EMPIRICAL
STUDIES THAT HAVE BEEN SUPPORTED BY L.E.A.A. AND OTHERS ON THE
MATTER OF STRENGTH OF EVIDENCE AND WHAT THE MATTERS YOU ARE THAT
PROSECUTORS TAKE INTO ACCOUNT IN MAKING THESE DECISIONS.
AND ALSO THERE“S A THEORETICAL LITERATURE ABOUT IT OR
MORE OF AN IMPRESSIONISTIC LITERATURE ABOUT WHAT PROSECUTORS AND
JURIES TAKE INTO ACCOUNT IN MAKING DETERMINATIONS. FOR EXAMPLE,
IN THE DEATH SENTENCING CONTEXT. THE NOTION OF A LINGERING
DOUBT. THE IDEA THAT IF THERE IS A LINGERING DOUBT ABOUT THE
GUILT OF THE OFFENDER THAT THAT MIGHT AFFECT THE DECISION THAT'S
TAKEN ON THE QUESTION OF WHETHER OR NOT CAPITAL PUNISHMENT MIGHT
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BE IMPOSED. AND WE WANTED TO TRY TO CAPTURE THAT SORT OF THING
IN OUR ANALYSIS.
80 1 CONSULTED THE LITERATURE GENERALLY,» AND THEN
CONSULTED ED AS TO WHAT AVAILABLE INFORMATION ON THESE QUESTIONS
WE COULD GET FROM THE PAROLE BOARD FILES.
a. WHAT KIND OF FACTORS DID YOU COME UP WITH AS WE PROCEED
THROUGH THE QUESTIONNAIRE. NOW?
A. WELL, WE START OFF WITH THE FIRST QUESTION OF WHAT THE
POLICE REPORT SAYS.» AS TO WHETHER OR NOT THE PERSON WAS GUILTY
OR NOT. AND MOST OF THESE CASES WERE CHARGED WITH MURDER. AS I
INDICATED, AND YOU CAN LOOK AT A POLICE REPORT, AND PRETTY
QUICKLY MAKE AN INFERENCE AS TO WHETHER OR NOT THE PERSON AT
LEAST WHO WROTE THE REPORT STRONGLY BELIEVED THAT THE PERSON WAS
GUILTY ON THE BASIS OF WHAT THEY KNEW.
Q. WHERE WERE THE POLICE REPORTS AVAILABLE?
A. NOW, THE POLICE REPORT IS ONE OF THE BITS OF INFORMATION
THAT WAS AVAILABLE IN THE FILES OF THE DEPARTMENT OF PARDONS AND
PAROLES. IT WAS ONE OF THE MOST IMPORTANT SOURCES OF
INFORMATION WE HAD. AND THIS IS SOMETHING THAT ED GATES CAN
TESTIFY IN MUCH MORE DETAIL ABOUT, SINCE HE WAS, HAD HIS HANDS
ON HUNDREDS OF THESE.
BUT 1°VE READ A NUMBER OF THEM MYSELF, AND YQU CET THE
PICTURE PRETTY QUICKLY AS TO WHAT THE VIEW OF THE GUILT OF THE
OFFENDER WAS, AT LEAST FROM THE PERSPECTIVE OF THE POLICE
OFFICERS WHO COMPLETED THE REPORT. SO THAT WAS ONE MEASURE OF
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STRENGTH OF THE EVIDENCE.
THEN WE WANTED TO TRY AND MAKE MORE DETAILED
DIFFERENTIATIONS IN TERMS OF THIS QUESTION. THE FIRST WAS WHAT
SORT OF IDENTIFICATION, THE BASIC STRUCTURE OF THIS IN TERMS OF
KINDS OF WITNESSES YOU HAVE, THE KINDS OF ADMISSIONS YOU HAVE,
KINDS OF SCIENTIFIC EVIDENCE YOU HAVE. THESE GENERAL CONCEPTUAL
CATEGORIES WERE WHAT I DREW OUT OF THE EXISTING LITERATURE. THE
EXISTING SCIENTIFIC LITERATURE ON THE SUBJECT. THESE WERE THE
PRINCIPAL DETERMINANTS. KINDS OF THINGS THAT INFLUENCE DECISIONS
OF PROSECUTORS IN DETERMINING WHETHER TO PLEA BARGAIN OR TO
PROCEED AHEAD WITH THE TRIAL OF THE CASE. $50, THE ——
Q. I SUSPECT THE RECORD PROBABLY DOESN‘T NEED THIS
CLARIFICATION, BUT JUST ON THE OFF CHANCE THAT IT DOES. IS IT
YOUR TESTIMONY, EXAMPLE, THE MORE WITNESS STATEMENTS THERE WERE
AND THE MORE CLEARLY THE BALLISTICS EVIDENCE OR FORENSIC
EVIDENCE POINTED TOWARD THE DEFENDANT, THE STRONGER THE STRENGTH
OF EVIDENCE MEASURE WOULD SHOW UP AS A RESULT OF THIS
QUESTIONNAIRE?
Ae. YES. THE RESEARCH THAT HAS BEEN DONE SHOWS THAT IF YOU HAD
TWO WITNESSES OR IF YOU HAD A POLICE OFFICER AS A WITNESS, SAY,
THAT THAT REALLY STRENGTHENED THE CASE SUBSTANTIALLY. THAT WAS
AN IMPORTANT MEASURE OF THE STRENGTH OF THE EVIDENCE.
SIMILARLY IF YOU HAD ADMISSIONS BY THE OFFENDER, OR
DEFENDANT IN THE CASE. THAT OBVIOUSLY WAS EXTREMELY IMPORTANT AS
WELL.
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1 SO WE WERE GUIDED BY THIS PRIOR RESEARCH THAT HAD
2 | INDICATED THE THINGS THAT APPEARED TO BE MOST IMPORTANT TO THE
PROSECUTORS.
THATS THE REASON YOU CAN SEE. YOUR HONOR, PAGE 24, WE
MAKE A DIFFERENTIATION BETWEEN THE WITNESS, WHO THE WITNESS WAS.
3
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6 WHETHER IT WAS A POLICE OFFICER OR CIVILIAN, THE TYPE OF
7 IDENTIFICATION THAT WAS MADE. WHETHER IT WAS IN THE ACT OF THE
8 HOMICIDE, SOMEBODY NEAR THE CRIME, SCENE OF THE CRIME BEFORE OR
9 AFTER, WHETHER OR NOT IT WAS AT A LINE-UP. THAT SORT OF THING,
10 THE NATURE OF THE, NATURE OF THE IDENTIFICATION. I“M SORRY. THE
11 NATURE OF THE IDENTIFICATION, EXCUSE ME. IS ON PAGE 25, YOUR
12 HONOR. IT’S, 25 SPECIFIES THE TYPE OF IDENTIFICATION THAT WAS
13 ACTUALLY INVOLVED.
14 THEN WE WERE CONCERNED ON THE BASIS OF THE EXISTING
15 RESEARCH, THAT, YOU KNOW, IF THE WITNESS. WHAT THE RELATIONSHIP
16 OF THE WITNESS AND THE OFFENDER WERE, COULD AFFECT THE STRENGTH
37 OF THE EVIDENCE. WHETHER OR NOT THERE WERE CORROBORATING
18 WITNESSES, WRITTEN COPIES IN THE FILES OF THE PAROLE BOARD.
W 19 NEXT. VERY IMPORTANT CATEGORY OF EVIDENCE WAS ON PAGE
20 27, WHICH CONCERNED STATEMENTS BY THE DEFENDANT AND
21 CO~-PERFPETRATORS TO POLICE.
22 AND PAGE 28 SPEAKS TO THE SUBJECT MATTER OF THOSE,
23 WHETHER THEY RELATED TO MOTIVE, FORM OF THE STATEMENT.
24 29, WE HAVE INFORMATION ON INCRIMINATING REMARKS MADE
23 BY CO-PERPETRATORS.
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THEN ON 30, WE MOVE INTO THE CATEGORY OF SCIENTIFIC
EVIDENCE. WHICH IN OUR LATER ANALYSES EMERGED TO BE IMPORTANT.
THESE ARE THE TRADITIONAL TYPES OF SCIENTIFIC EVIDENCE THAT
WOULD BE AVAILABLE. SOME OF IT IS NOT SO SCIENTIFIC, YOU KNOW.
JUST POSSESSION OF ARTICLES OBTAINED FROM THE DEFENDANT.
PAGE 31 TALKS ABOUT THE RELATIONSHIP OF THE PROPERTY
FOUND ON THE DEFENDANT, OR IN HIS PREMISES.
AND FINALLY, WE HAVE OUR MISCELLANEOUS ITEMS ON THE
MIDDLE OF 31, AND DOWN AT THE BOTTOM, THE MURDER WEAPON, WHICH
IS OBVIOUSLY OF CENTRAL IMPORTANCE IN SUCH LITIGATION.
AND AGAIN, SCIENTIFIC EVIDENCE RELATING TO A BALLISTIC
REPORT 1S REFERRED TO ON PAGE 32.
MEDICAL REPORTS REFERRED TO ON PAGE 33.
33 ALSO TALKS ABOUT THE NATURE OF THE ARREST, OF THE |
ACCUSED AND CO-PERPETRATORS.
THEN FINALLY. 34 TALKS ABOUT THE LESS WEIGHTY. BUT
SOMETIMES VERY IMPORTANT TYPES OF EVIDENCE. EVIDENCE OF
PREPARATION OR PRECIPITATING EVENTS. AND THE KINDS OF WITNESSES
THAT MAY HAVE OBSERVED THE DEFENDANT INVOLVED IN ANY OF THESE
ACTIVITIES WHICH WOULD PROVIDE CIRCUMSTANTIAL EVIDENCE AS TO THE
DEFENDANT “S INVOLVEMENT, AND MOTIVE IN THE CRIME. AND HOMICIDE.
AND FINALLY WE COME TO PAGE 36. WE COME TO THE SUMMARY
OF THE CASE.
@. WAS THERE A SUMMARY COMPLETED IN THE SAME MANNER THAT HAD
BEEN REQUESTED FOR THE PROCEDURAL REFORM STUDY QUESTIONNAIRE AND |
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THE SUPREME COURT RUESTIONNAIRE?
2 A. YES, AND HERE 1 WAS ADVISED BY ED THAT THE NORMAL PRACTICE
3 WOULD BE TO FILL OUT THE SUMMARY BEFORE THE INSTRUMENT WAS
4 CODED. BUT SOMETIMES THAT PRACTICE WOULD BE VARIED. BUT THAT
35 WAS THE GENERAL PRACTICE.
é BUT IN ALL CASES, THIS SUMMARY WAS COMPLETED AND ED
» 7 WILL EXPLAIN TO YOU HOW HE EVALUATED THESE SUMMARIES AGAINST THE
8 QUESTIONNAIRES AND THE RECORDS. THESE SUMMARIES WERE ABSOLUTELY
J ESSENTIAL TO OUR SUBSEQUENT WORK, AND AS IS NOTED HERE ON THE
10 INSTRUCTIONS THAT THE CODERS WERE ASKED TO EMPHASIZE ANY SPECIAL
11 CIRCUMSTANCES NOT PICKED UP IN THE PRECEDING QUESTIONS. EVEN
12 WITH A QUESTIONNAIRE AS ELABORATE AS THIS, THERE ARE NUANCES IN
13 THE CASE WHICH WOULD NOT BE REFLECTED IN THE QUESTIONNAIRE
14 | PROPER.
1s |@. BEYOND THE END OF THE QUESTIONNAIRE, I NOTE ON PAGE 37 AND
16 |ON PAGE 38, WOULD YOU EXPLAIN WHAT THOSE WERE?
17 |A. YES. THESE WERE NOTES THAT THE CODERS WERE ASKED TO MAKE
18 | CONCERNING THE. ANY AMBIGUITY THEY FOUND IN THE FILE, AND HOW
® 19 | THEY RESOLVED THEM.
20 |@. WHAT WAS THE PURPOSE OF LISTING THESE AMBIGUITIES?
21 |A. TO ENABLE US AT A LATER TIME IF WE CAME TO A POINT OF |
22 |MAKING CLOSE FACTUAL COMPARISONS OF THE CASES TO BE ABLE TO
23 |WEIGH THE IMPORTANCE OF THESE FACTORS, THAT IS, IF THERE WERE
24 | QUESTIONS ABOUT WHETHER SOMETHING EXISTED AT A LATER TIME WHEN
23 WE WERE MATCHING CASES, WE WOULD BE ABLE TO MAKE SOME FURTHER
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DETERMINATION.
ONE OF OUR PURPOSES HERE. YOUR HONOR. WAS TO BE ABLE TO
GET GROUPS OF ACTUAL SUMMARIES OF THE CASES TOGETHER. SO WE
WOULDN’T BE RELYING SIMPLY ON A STRICTLY STATISTICAL METHOD OF
ANALYZING CASES. BUT BE ABLE TO LOOK AT THESE CASES AND SORT
THEM INTO CATEGORIES THAT WOULD REFLECT SOME JUDGEMENT AS TO THE
RELATIVE CULPABILITY, AND MAKE COMPARISONS BETWEEN CASES.
Gl. WHEN YOU SAY LOOK AT THESE CASES. YOU MEAN LOOK BEYOND
NUMBERS TO CHARACTERISTICS, THAT SORT OF THING?
A. YES. YOU WANTED TO BE ABLE TO LOOK AT THE CASES IN THE SAME
WAY THAT A PROSECUTOR WHO HAD RECEIVED A REPORT ON A CASE
PRESENTED TO HIM MIGHT LOOK AT THE CASE, AND WE WANTED TO
CAPTURE THE NUANCES THAT MIGHT BE AVAILABLE.
Q. PAGE 38, WHAT DOES THAT REFLECT?
Aa 38, YOUR HONOR IS A WORKSHEET THAT WE PREPARED IN CASES
WHERE WE HAD MISSING INFORMATION ON THE RACE OF THE VICTIM. BUT
ALSO IT WAS A WORKSHEET THAT WE PREPARED IN EVERY CASE TO GIVE
US A PERMANENT RECORD OF WHO THE DEFENSE ATTORNEY WAS. WHAT THE
ADDRESS OF THE DEFENSE ATTORNEY WAS. IF IT WAS IN THE RECORD.
THAT INFORMATION WAS USUALLY IN THE RECORD OF THE PAROLE BOARD.
AND ALSO INDICATED WHO THE DISTRICT ATTORNEY WAS, AND THE NAME
OF THE ASSISTANT DISTRICT ATTORNEY WHO ACTUALLY TRIED THE CASE.
SO IF WE NEEDED INFORMATION ON, ADDITIONAL INFORMATION, WE COULD
CET THAT.
OUR GENERAL STRATEGY WAS TO USE QUESTIONNAIRES WHICH
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ILL DESCRIBE IN A MINUTE TO FIND OUT ABOUT PLEA BARGAINING FROM
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2 | THE DEFENSE ATTORNEYS AND THE PROSECUTORS.
3 AND THAT'S WHY WE NEEDED THE NAMES OF DEFENSE ATTORNEY
3 AND PROSECUTOR IN EACH CASE SO WE WOULD BE ABLE TO SEND THEM A
s | QUESTIONNAIRE TO GET INFORMATION ABOUT WHAT PLEA BARGAINING HAD
& | GONE ON IN THE CASE. AND THAT“S WHAT THIS WAS USED FOR, TO PUT
» 7 | TOGETHER THE MAILINGS THAT WE ULTIMATELY SENT OUT TO THOSE
2 PEOPLE. ;
9 MR. BOGER! YOUR HONOR, AT THIS TIME, 1 MOVE THE
10 | ADMISSION OF DB-38 INTO EVIDENCE.
11 MS. WESTMORELAND: NO OBJECTION. YOUR HONOR.
12 THE COURT: IT WILL BE ADMITTED.
13 | BY MR. BOGER:
14 |@. PROFESSOR BALDUS, WE’VE GOT SOME SENSE NOW OF THE KIND OF
15 | VARIABLES THAT YOU WERE PLANNING TO COLLECT ON THESE CASES. THAT
164 | YOU IDENTIFIED THROUGH THE SAMPLING TECHNIQUE FROM THE
17 | DEPARTMENT OF OFFENDER REHABILITATION.
18 WHAT SOURCES DID YOU INTEND TO DRAW ON TO COLLECT THESE
19 DATA?
20 A WE INTENDED TO COLLECT THESE DATA FROM THE SAME SOURCES
21 THAT WE HAD USED IN THE LATTER HALF OF THE SECOND PART OF THE
22 PROCEDURAL REFORM STUDY. THAT IS, THE PRINCIPAL SOURCE OF
23 INFORMATION CONCERNING THE OFFENDER. THE OFFENSE, AND THE VICTIM
24 WERE TO BE OBTAINED FROM THE RECORDS OF THE GEORGIA DEPARTMENT
235 OF PARDONS AND PAROLES.
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THOSE WERE TO BE SUPPLEMENTED WITH INFORMATION FROM THE
BUREAU OF VITAL STATISTICS. QUESTIONNAIRES TO LAWYERS AND
PROSECUTORS, AND IN SOME CASES. WITH INFORMATION FROM THE
RECORDS OF THE GEORGIA SUPREME COURT, AND THEN ALL OF THESE
FILES, THIS ENTIRE FILE OF INFORMATION WOULD BE MERGED WITH THE
LARGE FILE OF INFORMATION FROM THE DEPARTMENT OF CORRECTIONS,
WHO AGREED TO GIVE us A TAPE ON THE HANDFUL OF VARIABLES THAT WE
HAD REQUESTED THAT INFORMATION ON FROM THEM.
QA. LET ME ASK YOU TO TURN TO DB-3%9 MARKED FOR IDENTIFICATION,
AND ASK YOU TO IDENTIFY IT?
Fe YES. THIS DOCUMENT, CALLED "SOURCES OF DATA" PRESENTS A
SCHEMATIC REPRESENTATION OF THE VARIOUS SOURCES OF INFORMATION
THAT WE USED IN THIS STUDY.
Qo. DOES IT ACCURATELY REFLECT THOSE SOURCES?
A. IT ACCURATELY REFLECTS IT WITH ONE EXCEPTION. WHERE IT
SAYS "DEPARTMENT OF OFFENDER REHABILITATION" IT NOTES BELOW
“MAGNETIC TAPE 1 AND MAGNETIC TAPE 2." I THINK THAT'S A
TYPOGRAPHICAL ERROR. THERE WAS ONLY ONE MAGNETIC TAPE THAT WE
OBTAINED.
Q. OTHERWISE, IS IT AN ACCURATE SCHEMATIC?
A. YES, IT 18S.
MR. BOGER: YOUR HONOR. I MOVE DB-3% INTO EVIDENCE. TO
ASSIST IN EVALUATION OF PROFESSOR BALDUS” TESTIMONY. AND IS
ILLUSTRATIVE OF IT.
THE COURT: I DON’T SEE ANY REASON NOT TO.» UNDER THE
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SAME NOTION AS EARLIER, IF YOU WILL SUBMIT A CORRECT ONE.
PS
2 MS. WESTMORELAND: THAT WAS GOING TO BE MY ONLY
3 | QUALIFICATION, YOUR HONOR.
4 MR. BOGER: ILL BE HAPPY TO DO THAT. YOUR HONOR.
s THE COURT: MR. BOGER, LET ME TAKE A TEN-MINUTE BREAK
& | AND WE‘LL COME BACK AND RUN TILL QUARTER OF ONE.
» 7 MR. BOGER: FINE.
. -
9 (RECESS TAKEN.)
10 ---
11 DAVID C. BALDUS,
12 | BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
{ 13 | TESTIFIED FURTHER AS FOLLOWS:
| 14 DIRECT EXAMINATION (CONT”D)
15 | BY MR. BOGER:
16 |@. PROFESSOR BALDUS, ONCE YOU HAD IDENTIFIED THE SOURCES OF
17 | DATA THAT YOU WANTED TO EMPLOY, DID YOU GO THROUGH MUCH THE SAME
13 | PROCEDURE AS IN THE PROCEDURAL REFORM STUDY TO OBTAIN ACCESS TO
15 | DATA. FOR EXAMPLE. FROM THE DEPARTMENT OF OFFENDER
e 20 |REHABILITATION?
21 A. YES. I HAD. WROTE TO THE DEPARTMENT AND OBTAINED
22 PERMISSION FROM THEM IN THE SAME WAY AS WE HAD DONE EARLIER. AND
23 THEN SUBMITTED A SPECIFIC REQUEST FOR DATA.
24 ACTUALLY. WE SUBMITTED REQUESTS EARLIER TO GET A
25 LISTING OF THE OFFENDERS WHO WERE IN THE SYSTEM HAVING BEEN
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CONVICTED OF MURDER OR VOLUNTARY MANSLAUGHTER TO GET A SENSE OF
HOW BIG A POPULATION OF PEOPLE WE WERE DEALING WITH.
AND THERE WAS SUBSTANTIAL CORRESPONDENCE THAT WENT BACK
AND FORTH BETWEEN ME AND THE DEPARTMENT ON REQUESTS FOR THOSE
SORTS OF RUNS.
Q. LET ME ASK YOU TO TURN TO WHAT’S BEEN MARKED FOR
IDENTIFICATION, DB-40 FOR IDENTIFICATION. I“LL ASK YOU TO
IDENTIFY THOSE DOCUMENTS.
A. YES. DB-40 CONSISTS OF A SERIES OF COMMUNICATIONS THAT I
HAD WITH THE DEPARTMENT OF CORRECTIONS DURING THE EARLY PART OF
1981 IN WHICH I REQUESTED INFORMATION ON THE NAMES OF PEOPLE
CONVICTED OF VOLUNTARY MANSLAUGHTER AND MURDER SO THAT WE COULD
GET AN UNDERSTANDING OF HOW LARGE A POPULATION WE WERE DEALING
WITH.
THEN FINALLY. OVER ON THE FIFTH DOCUMENT IN THIS
EXHIBIT, CONSISTS OF THE FORMAL REQUEST THAT 1 PRESENTED TO THE
DEPARTMENT OF CORRECTIONS. IT’S A LETTER DATED JUNE 11, 1981,
TO MARSHA CHALKER IN THE DEPARTMENT. AND IT SPECIFIED BY WAY OF
APPENDIX A THE PRECISE VARIABLES ON WHICH WE WERE REQUESTING HER
TO PREPARE A TAPE.
Qe. AND HOW HAD YOU ARRIVED AT THAT LIST OF VARIABLES?
A. THE DEPARTMENT OF CORRECTIONS SENT ME A COPY OF THEIR FULL
FILE ON EACH OFFENDER. ACTUALLY THERE HAD BEEN A LOT OF CHANGES
MADE IN THE RECORD KEEPING SYSTEM IN THE DEPARTMENT SINCE OUR
LAST REQUESTS FOR INFORMATION FOR THE PROCEDURAL REFORM STUDY.
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BALDUS - DIRECT
SHE SENT ME THAT DOCUMENT AND EXPLAINED TO ME WHAT EACH VARIABLE
MEANT. IF IT WASN‘T SELF-EXPLANATORY. AND THEN I PICKED OUT THE
VARIABLES I THOUGHT WERE RELEVANT FOR OUR STUDY, AND SPECIFIED
THEM IN APPENDIX A.
AND THEN SHE PICKED THOSE VARIABLES OFF THEIR LARGE
MASTER TAPE AND PUT THEM IN THE FILE FOR ALL THE OFFENDERS THAT
WE HAD REQUESTED THE INFORMATION ON.
Wd. SO YOU DID RECEIVE THE DOCUMENTS OR THE TAPE THAT YOU
REQUESTED?
Ae YES.
MR. BOGER: YOUR HONOR, AT THIS TIME, I MOVE DB-40 INTO
EVIDENCE AS REFLECTING THE DOCUMENTS BACK AND FORTH BETWEEN
PROFESSOR BALDUS AND THE DEPARTMENT OF OFFENDER REHABILITATION
WHICH RESULTED IN HIS RECEIPT OF THE MAGNETIC TAPE.
MS. WESTMORELAND: YOUR HONOR. I THINK THE ONLY
RELEVANT POINT FROM THIS IS THAT PROFESSOR BALDUS DID RECEIVE
THE DATA FROM THE DEPARTMENT OF OFFENDER REHABILITATION.
VARIOUS COMMUNICATIONS THAT TOOK PLACE IN OBTAINING THAT DATA
DON‘T SEEM TO HAVE ANY RELEVANCY AT THIS TIME. SINCE THE DATA
HAS APPARENTLY BEEN OBTAINED.
MR. BOGER: YOUR HONOR, THE PREVIOUS SIMILAR DOCUMENTS,
I BELIEVE, WERE ADMITTED IN EVIDENCE WITH RESPECT TO THE
PROCEDURAL REFORM STUDY AND I THINK THE REASONING OF THE COURT
IN THAT INSTANCE WAS A GOOD ONE. THIS TENDS, IF YOU WOULD, TO
SHOW THE TRAIN OF CUSTODY OF THESE DOCUMENTS, REFLECTS HOW
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PROFESSOR BALDUS CAME TO OBTAIN THEM FROM THE STATE AND ITS
WEIGHT MAY NOT BE GREAT BUT ITS RELEVANCE IS CLEAR.
THE COURT: ILL ADMIT IT.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
Q. PROFESSOR BALDUS, DID YOU NOTIFY ANYONE ELSE IN THE STATE
OF GEORGIA, BEYOND THE DEPARTMENT OF OFFENDER REHABILITATION AND
DEPARTMENT OF PAROLES AND PROBATIONS THAT YOU WERE ABOUT TO
UNDERTAKE COLLECTION OF DATA IN THE CHARGING AND SENTENCING
STUDY?
Ae. YES, I DID.
Qe. WHO?
A. I SENT A COMMUNICATION TO THE ATTORNEY GENERAL OF THE STATE
OF GEORGIA IN MAY OF 1981 --
Q. AND WHAT —-- EXCUSE ME.
A. -— EXPLAINING THAT WE WERE ABOUT TO UNDERTAKE THIS STUDY.
IT OCCURRED TO ME EARLIER THAT SINCE THERE WAS A POSSIBILITY
THAT THESE RESULTS FROM THE STUDY WE WERE UNDERTAKING MIGHT BE
USED IN SOME FUTURE LITIGATION INVOLVING THE STATE OF GEORGIA,
THAT IT WOULD BE APPROPRIATE TO PUT THEM ON NOTICE TO THAT
EFFECT, THAT WE WERE UNDERTAKING THE STUDY. TO GIVE THEM A SENSE
OF WHAT WE WERE DOING. AND THE, IF YOU, MR. BOGER. AGREED WITH
THE IDEA, AND AS A CONSEQUENCE I SENT THEM THIS COMMUNICATION.
Qe WHEN YOU SAY THIS COMMUNICATION. LET ME AS YOU TO TURN TO
DB-41 MARKED FOR IDENTIFICATION. ILL ASK IF YOU CAN IDENTIFY
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BALDUS - DIRECT
THE DOCUMENTS THERE.
A. DB-41 IS A LETTER OVER MY SIGNATURE DATED MAY 13, 1981, TO
THE ATTORNEY GENERAL OF THE STATE OF GEORGIA. AND AS
ATTACHMENTS TO THAT LETTER WERE A BRIEF DOCUMENT CALLED "THE
RESEARCH PLAN FOR STUDY OF GEORGIA HOMICIDE SENTENCING PROCESS.
1973-772."
IN ADDITION, WE INCLUDED IF MY RECOLLECTION SERVES ME
CORRECTLY A COPY OF THE QUESTIONNAIRE WE HAD PROPOSED TO USE.
6. WHAT DID YOU INFORM THE STATE IN THIS LETTER OF MAY 13.
19817
Ae THIS LETTER AND THE APPENDICES INFORMED THEM OF OUR
INTENTION TO UNDERTAKE THIS STUDY, AND THE RESEARCH PLAN THAT
WAS ATTACHED LAID OUT THE GENERAL DESIGN OF THE STUDY. WHAT A
SAMPLING PLAN WAS, AND HOW WE INTENDED TO COLLECT THE DATA. AND
WHERE WE INTENDED TO COLLECT IT. AS WELL AS A PLAN OR RATHER
CITATION TO THE AUTHORITIES WOULD INDICATE HOW WE HAD EVENTUALLY
PLANNED TO ANALYZE THE DATA.
a. DID YOU INFORM THE STATE OF THE FUNDING SOURCE OR --
Ae. YES, I DID. I INDICATED THAT THIS, THESE DATA WERE BEING
SUPPORTED BY A GRANT FROM THE EDNA MCCONNELL CLARK FOUNDATION
AND THAT THE RESEARCH WAS SPONSORED BY THE N.A.A.C.P. LEGAL
DEFENSE FUND.
QA. WAS THE STATE GIVEN ANY OPPORTUNITY. TO OBTAIN FURTHER
INFORMATION ABOUT THE STUDY AT THAT TIME PRIOR TO THE DATA
COLLECTION IF IT SOUGHT SUCH?
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A. YES. I STATED IN THE LETTER THAT IF THEY WANTED ANY
FURTHER INFORMATION, 1 WOULD BE PLEASED TO PROVIDE IT FOR THEM.
Qe. DO YOU RECALL WHETHER YOU EVER RECEIVED ANY RESPONSE TO
THAT LETTER? |
A. YES. 1 RECEIVED A LETTER IN LATE MAY, DATED MAY 22, 1981,
WHICH IS PART OF EXHIBIT DB-41, OVER THE SIGNATURE OF MARY BETH
WESTMORELAND, ASSISTANT ATTORNEY GENERAL. IN THAT LETTER. SHE
ACKNOWLEDGED RECEIPT OF THE INFORMATION THAT I HAD SENT HER
EARLIER AND SAID SHE WOULD APPRECIATE BEING INFORMED OF FUTURE
DEVELOPMENTS.
Q. DO YOU RECALL IF THERE WERE ANY SPECIFIC OBJECTIONS AT THAT
TIME MADE TO THE DESIGN OF YOUR STUDY OR TO THE ADEQUACY OF YOUR
QUESTIONNAIRE OR ANY OTHER MATTERS WITH RESPECT TO YOUR RESEARCH
UNDERTAKING?
MS. WESTMORELAND: YOUR HONOR, I OBJECT TO THAT
QUESTION. I DON‘T THINK IT’S RELEVANT AT THIS POINT IN TIME AND
I DON’T BELIEVE ANY OF THIS INFORMATION INDICATES THAT IT WAS
PRESENTED FOR THAT PURPOSE AT THAT TIME.
MR. BOGER: YOUR HONOR, I THINK IT IS RELEVANT. IF THE
STATE HAD OBJECTIONS AT THAT TIME AND FORWARDED THEM TO
PROFESSOR BALDIUS, IT MIGHT BEAR ON THE UNDERLYING RELIABILITY OF
HIS PROCEEDING IN THE ABSENCE OF CONCERN FOR THOSE OBJECTIONS.
I CERTAINLY DON’T DENY THE STATE’S FAILURE TO MAKE
OBJECTIONS AT THE TIME IS AN ESTOPPEL TO THEIR OBJECTION LATER,
‘NOW HERE AT THIS HEARING. BUT IT DOES SEEM TO BE RELEVANT TO
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BALDUS - DIRECT
1 KNOW WHETHER OR NOT THEY SAID TO PROFESSOR BALDUS AT THAT TIME.
2 "WAIT A MINUTE, THAT’S THE WRONG KIND OF STUDY AND WE THINK IF
YOU GO FORWARD WITH IT, IT WILL HAVE SERIOUS PROBLEMS."
THE COURT: THE STATE HAD NO OBLIGATION TO MAKE ANY
SUCH COMMENT AS THAT.
3
4
2
3 ILL SUSTAIN THE OBJECTION.
7 MR. BOGER: YOUR HONOR, AT THIS TIME, I WOULD MOVE THE
8 ADMISSION OF DB-41 INTO EVIDENCE.
9? MS. WESTMORELAND: YOUR HONOR, I WILL OBJECT TO DB-41.
10 I DON’T SEE IT HAS ANY RELEVANCE WHATSOEVER TO ANY OF THE DATA
11 COLLECTION METHODS OR THE CHAIN OF CUSTODY, SO TO SPEAK, OF ANY
12 OF THE DATA ITSELF THAT WAS RECEIVED. THIS IS MERELY INFORMING
13 THE ATTORNEY GENERAL THAT THIS WAS TAKING PLACE. AND I DONT
14 SEE IT HAS ANY RELEVANCE TO THE STUDIES THAT WERE CONDUCTED.
13 THE COURT: I SUSTAIN THE OBJECTION.
16 BY MR. BOGER:
37 Q. PROFESSOR BALDUS, ONCE YOU HAD INFORMED EVERYONE OF WHAT
18 vou WERE PLANNING TO DO, HOW DID YOU GO ABOUT GETTING THE PEOPLE
1% ACTUALLY TO CARRY OUT THE WORK OF CODING?
20 |A. 1 DECIDED TO RECRUIT LAW STUDENTS AND TO DO SO, I SENT QUT
23 A LETTER TO SOME 35 OR 40 DEANS AT LAW SCHOOLS AROUND THE UNITED
22 STATES EXPLAINING THE NATURE OF THE RESEARCH PROJECT IN VERY
23 GENERAL TERMS. AND INDICATING THAT I WAS INTERESTED IN ENGAGING
24 STUDENTS TO WORK IN GEORGIA FOR THE SUMMER TO CODE THE CASES
23 THAT WERE GOING TO BE USED IN THE STUDY.
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Q. DID YOU RECEIVE ANY RESPONSES TO THOSE QUESTIONS?
Aa YES. I RECEIVED FROM 30 TO 40 RESPONSES FROM STUDENTS WHO
EXPRESSED AN INTEREST, PLUS THESE WERE WRITTEN RESPONSES AS WELL
AS TELEPHONE INQUIRIES. AND FROM THAT GROUP OF PEQPLE WE. WE,
BEING ED GATES AND I, HE WAS INVOLVED IN THIS PROCESS AT THE
TIME, THIS IS WHEN HE WAS IN IOWA HELPING ME PREPARE THE
QUESTIONNAIRE AND THE FINAL PLANNING FOR THE PROJECT, WE CHECKED
OUT THE REFERENCES OF THE PEOPLE WHO EXPRESSED STRONGEST
INTEREST AND HAD THE STRONGEST RESUMES.
Gl. DID YOU THEN OBTAIN RESUMES FROM A NUMBER OF THE PEOPLE?
A. YES, EVERYBODY WHO EXPRESSED AN INTEREST WAS REQUESTED TO
SUBMIT A RESUME, AND WE ENDED UP WITH APPROXIMATELY 30 RESUMES.
AND WE TOOK THE ONES THAT LOOKED STRONGEST. AND DID A
CAREFUL SCREENING OF THEIR REFERENCES.
(rN WHAT WERE THE BASES FOR YOUR JUDGMENT THAT ONE WAS STRONGER
THAN ANOTHER. WHAT WERE YOU LOOKING FOR IN THESE CODERS?
A. WELL, AS I INDICATED EARLIER, THE PRINCIPAL QUALITIES THAT
1 BELIEVE WERE REQUIRED TO DO THIS WORK PROPERLY WERE. NUMBER 1.
INTELLIGENCE.
NUMBER 2, DILIGENCE.
SO I WAS VERY MUCH INFLUENCED BY THE PAPER RECORD THAT
THE STUDENTS HAD. WHAT KIND OF ACADEMIC CREDENTIALS THEY HAD.
BUT BEYOND THAT. AGAIN I WAS VERY INTERESTED IN THEIR
PRIOR WORK HISTORY, WHETHER THEY HAD DONE WORK IN CHALLENGING
ENVIRONMENTS THAT REQUIRED THEM TO PAY ATTENTION TO DETAIL, AND
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BALDUS - DIRECT
THEN THAT THEY DEMONSTRATED A WILLINGNESS TO WORK HARD UNDER
>
DIFFICULT CIRCUMSTANCES.
THOSE WERE THE QUESTIONS ED GATES AND I WOULD PUT TO
THE FORMER EMPLOYERS OF THESE APPLICANTS.
A. LET ME ASK YOU TO TURN TO WHAT’S BEEN MARKED AS DB—-42 FOR
IDENTIFICATION. CAN YOU IDENTIFY THOSE DOCUMENTS. PROFESSOR
BALDUS?
A. YES. THESE ARE THE RESUMES OF THE LAW STUDENTS THAT WE
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HIRED IN THE SPRING OF 1981 TO PARTICIPATE IN THIS PROJECT AS
10 DATA COLLECTORS.
11 XA. HOW MANY STUDENTS DID YOU HIRE?
12 A. WE HIRED FIVE LAW STUDENTS AND WE ALSO HIRED AN
LC: 13 UNDERGRADUATE STUDENT FROM DUKE UNIVERSITY, WHO, WHOSE JOB WAS
14 TO PULL FILES IN THE PAROLE BOARD.
13 THE PRINCIPAL CODERS, HOWEVER, WERE THESE FIVE LAW
16 STUDENTS WHO WORKED UNDER ED GATES‘ SUPERVISION.
17 a. LET ME DIRECT YOU TO A FEW MATTERS WITHIN THESE DOCUMENTS.
18 I NOTICE SOME OF THEM HAVE WHAT APPEAR TO BE COURSE GRADES OR
TRANSCRIPTS OF GRADES.
20 DID YOU OBTAIN THOSE ON ALL THE STUDENTS?
21 A. NO, THOSE WERE OBTAINED ONLY FROM THE UNIVERSITY OF
22 VIRGINIA WHICH HAS A PRACTICE OF SENDING OUT GRADES TO ANYBODY
23 WHO REQUESTS INFORMATION ABOUT THEIR STUDENTS.
24 | Q. LOOK AT THE SECOND RESUME, THAT OF MATTHEW ESTES. I NOTICE
25 SOME HANDWRITING DOWN UNDERNEATH "WORK EXPERIENCE." LOOKS LIKE A
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TELEPHONE NUMBER.
WHAT DOES THAT REFLECT?
A. THAT IS THE NAME OF THE PERSON FOR WHOM HE WORKED. AND THE
PHONE NUMBER, AND I CAN TELL THAT’S ED GATES” HANDWRITING. AND
REFLECTS THE FACT THAT HE CALLED THAT PERSON TO INQUIRE ABOUT
THEM.
Q. SO YOU MADE ACTUAL TELEPHONE INQUIRIES TO REFERENCES OF
THESE PEOPLE, BEFORE YOU ACCEPTED THEM?
A. YES, FOR EACH ONE.
MR. BOGER: ALL RIGHT, YOUR HONOR, I MOVE THE ADMISSION
OF DB-42 INTO EVIDENCE.
MS. WESTMORELAND: YOUR HONOR, I OBJECT TO THE
ADMISSION OF THESE DOCUMENTS. WE HAVE NO WAY OF KNOWING IF
THESE ARE IN FACT RESUMES FROM THESE PARTICULAR PEOPLE. THEY‘RE
NOT HERE TO INDICATE SO, AND WE HAVE NO WAY OF TESTING THE
VALIDITY OF ANY OF THE FACTS THAT MAY BE IN THESE DOCUMENTS.
MR. BOGER: YOUR HONOR, THESE ARE THE DOCUMENTS THAT
PROFESSOR BALDUS TESTIFIED HE RECEIVED AND RELIED UPON. HE IN
FACT MADE TELEPHONE INQUIRIES TO ASK ABOUT THESE PEOPLE. AND
THEIR BACKGROUNDS.
THE STATE HAS FORMERLY OBJECTED IN ONE OF ITS ANSWERS
TO INTERROGATORIES THAT WE POSED TO THEM ABOUT OBJECTIONS TO
THIS STUDY ON THE BASIS THAT THE CODERS LACKED QUALIFICATIONS.
WE HAVE HERE THINGS THAT REFLECT THAT THESE CODERS WERE
ENGAGED IN LAW SCHOOL, THEY HAVE BEEN VALEDICTORIANS AT THEIR
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BALDUS - DIRECT
HIGH SCHOOLS AND THAT SORT OF THING. AND I THINK THESE
-
DOCUMENTS ARE RELEVANT TO PROFESSOR BALDUS’ JUDGMENT ABOUT THEIR
QUALIFICATIONS TO SERVE AS CODERS.
THE COURT: I DON’T UNDERSTAND THAT HER OBJECTION IS TO
RELEVANCY.
MS. WESTMORELAND: I THINK THESE DOCUMENTS ARE JUST
PLAIN HEARSAY WITHOUT SOME BASIS THAT WE KNOW WHO THEY CAME
FROM, AND WHAT THESE INDIVIDUALS HAVE TO SAY ABOUT THEIR OWN
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QUALIFICATIONS. THAT'S MY OBJECTION.
10 THE COURT: IT’S A HEARSAY OBJECTION.
11 MR. BOGER: YOUR HONOR, I THINK THERE‘S AT LEAST
12 SEVERAL EXCEPTIONS TO THE HEARSAY RULE THAT APPLY. THESE ARE
13 RECORDS THAT PROFESSOR BALDUS HAS KEPT IN THE COURSE OF THE
14 CONDUCT OF HIS STUDY, AND, THEREFORE, I THINK THEY ARE IN EFFECT
15 BUSINESS RECORDS EXCEPTIONS TO THE HEARSAY RULE. WE“RE NOT
146 OFFERING =-- YOUR HONOR DISAGREES. I THINK I CAN TELL.
17 THE COURT: I DON’T THINK THEY“RE BUSINESS RECORDS.
13 THEY MAY OR MAY NOT BE ADMISSIBLE. BUT I DON’T THINK THEY'RE
19 BUSINESS RECORDS.
20 MR. BOGER: I CAN ASK PERHAPS PROFESSOR BALDUS A FEW
21 ADDITIONAL QUESTIONS ABOUT THEM BEFORE YOUR HONOR RULES.
22 BY MR. BOGER:
23 Q. PROFESSOR BALDUS, DID YOU SPEAK WITH ANY OF THESE PEOPLE
24 INDIVIDUALLY CONCERNING THEIR ACADEMIC BACKGROUNDS?
23 Fe 1 CAME TO KNOW EACH ONE OF THESE PEOPLE THROUGH THE TIME
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THAT I SPENT IN GEORGIA TRAINING THE STUDENTS. I CAME HERE ON
TWO DIFFERENT OCCASIONS, ONCE FOR A WEEK, ONCE FOR 3 DAYS, TWO
OR THREE DAYS. I HAD EXTENSIVE TELEPHONE CONVERSATIONS WITH
THESE PEOPLE, SPENT MANY HOURS TALKING WITH THEM ABOUT THEIR
PAST. AND THEIR EXPERIENCE, AND I CAN REPRESENT TO YOU THAT ON
THE BASIS OF MY BEST KNOWLEDGE AND BELIEF, AT LEAST WITH RESPECT
TO THE ACADEMIC RECORDS THAT ARE REFLECTED IN THESE RESUMES THAT
THESE ARE A CORRECT REPRESENTATION OF THE ACADEMIC BACKGROUNDS.
PARTICULARLY AS IT RELATES TO LAW SCHOOL. OF EACH ONE OF THESE
APPLICANTS.
THIS WAS THE BASIS ON WHICH I EXERCISED THE
PROFESSIONAL JUDGMENT TO ENGAGE THESE PEOPLE AS RESEARCH
ASSISTANTS DURING THE SUMMER OF 1981.
Q. LET ME ASK YOU FURTHER, PROFESSOR BALDUS, IS IT COMMON
WITHIN THE SOCIAL SCIENCE DISCIPLINE FOR ONE TO HIRE EMPLOYEES
SUCH AS CODERS BASED ON RESUMES OF THIS SORT?
A. YES. IT IS.
MR. BOGER: YOUR HONOR, I WILL RENEW MY OFFER. I
SUBMIT THESE DOCUMENTS IN EVIDENCE.
I MIGHT ADD THAT THEY‘RE BEING ADMITTED BOTH IN
THEMSELVES, AND ALSO AS EVIDENCE OF THE CARE THAT PROFESSOR
BALDUS TOOK IN SELECTING CODERS.
"MS. WESTMORELAND: YOUR HONOR. I WOULD RENEW MY
OBJECTION, AND STILL INSIST THAT THESE DOCUMENTS ARE HEARSAY AND |
PROFESSOR BALDUS. WHATEVER HE MAY HAVE DISCUSSED WITH THE CODERS,
BALDUS -~ DIRECT
THESE INDIVIDUALS LISTED IN THE RESUME, WOULD STILL BE HEARSAY.
F
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2 MR. BOGER: YOUR HONOR, I THINK I“VE GIVEN YOU AN
3 ALTERNATIVE BASIS. WE DO NOT THINK THEY FALL WITHIN THE HEARSAY
4 RULE, BUT IF THEY DID. IT’S THE TRUTH OF THE MATTERS CONTAINED
3 THEREIN. WE SUBMIT ARE ADMISSIBLE TO SHOW THE CARE AND CONCERN
: & WITH WHICH PROFESSOR BALDUS OBTAINED THE PERSONS WHO WORKED FOR
% 7 HIM THAT SUMMER.
8 THE COURT: I GO THROUGH AN ANNUAL EXERCISE OF HIRING
? LAW CLERKS. I HAVE TO FUNCTION IN THE FIRST INSTANCE ON THE
10 BASIS OF RESUMES. MY EXPERIENCE HAS BEEN THAT THE ABILITY OF A
11 LAW CLERK IS SELDOM ASCERTAINABLE FROM THE FACE OF THE RESUMES.
12 I SUSPECT THE SAME IS TRUE AS TO THE ABILITIES OF A
13 CODER, WHICH REQUIRE DIFFERENT SKILLS.
14 I WILL ALLOW THEM UNDER 803(24), SUBJECT TO A MOTION TO
15 STRIKE, IF YOU CARE, MS. WESTMORELAND, DURING THE COURSE OF THE
16 HEARING OR THEREAFTER. TO SHOW THAT THEY ARE IN FACT UNRELIABLE
17 | IN ANY DETAIL. I WILL BE GLAD TO STRIKE THEM. OTHERWISE. I WILL
18 | ADMIT THEM FOR WHATEVER THEY SHOW. INDICATING TO YOU THAT I
PS 19 | REALIZE THEY ARE THE SORT OF THING THAT WE ALL WORK WITH, BUT
20 | THEIR RELIABILITY. EVEN IF EVERYTHING. WHAT THEY PROVE ABOUT THE
-1 | COMPETENCY OF THE CODERS. EVEN IF EVERYTHING ASSERTED THEREIN
22 |WAS TRUE IS SUBJECT TO DEBATE PERHAPS.
23 MS. WESTMORELAND: THANK YOU, YOUR HONCR.
24 MR. BOGER: THANK YOU. YOUR HONOR.
2%. - BY MR. BOGER:
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Q. PROFESSOR BALDUS, NOW YOU‘VE GOT FIVE CODERS, YOU’VE GOT ED
GATES IN CHARGE OF THEM. YOU“VE INDICATED YOU HAD ONE DUKE
UNIVERSITY UNDERGRADUATE STUDENT WHO IS GOING TO PULL FILES.
WHEN DOES THE DATA GATHERING PROCESS IN GEORGIA GET
UNDERWAY? :
A. IT COMMENCED IN THE LAST WEEK, I BELIEVE. OF MAY, 1931.
THE STUDENTS ASSEMBLED HERE. AND WE MET FOR A WEEK IN THE
OFFICES OF THE PAROLE BOARD.
a. WHEN YOU SAY WE. WHO WAS PRESENT?
A. WELL, THE FIVE STUDENTS THAT WE HAD ENGAGED WERE:
MARTHA MCGILL: MATTHEW ESTES; JOHN GREENO:; ORI CORB3
LEANNE DIGRACIA: AS WELL AS THE UNDERGRADUATE STUDENT THAT I
REFERRED TO EARLIER, AND WE COMMENCED TRAINING.
Wo. YOU SAY WE AGAIN. BEYOND THE STUDENTS. WHO WAS PRESENT?
Ae OH, ED GATES. OF COURSE, WAS PRESENT.
Q. AN WERE YOU?
A. YES. I WAS PRESENT.
Qo. YOU CAME FROM IOWA?
A. YES, I FLEW HERE FROM IOWA TO TRAIN THE STUDENTS.
Q. AND HOW DID THE TRAINING PROCESS PROCEED?
A. IT PROCEEDED ALONG THE SAME LINES THAT I HAD USED IN
TRAINING ED AND CATHY CHRISTIAN FOR THE FIRST STUDY.
1 GAVE A PRESENTATION ABOUT THE BACKGROUND OF THE
STUDY. THE CONSTITUTIONAL LAW THAT INSPIRED IT. THE REASONS FOR
IT, THE QUESTIONS THAT WE WERE INTERESTED IN ANSWERING -- THAT
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DIDNT TAKE VERY LONG.
WE GOT DOWN TO THE MECHANICS OF DEALING WITH THE
INSTRUMENT FOR CODING, THAT IS. THE QUESTIONNAIRE, AND GOING
OVER FILES. AND THE STUDENTS AGAIN WOULD DO DRY RUNS WITH FILES
AND THEN ED AND I WOULD CHECK THEM, AND WE WOULD CHECK EACH
OTHER’S WORK AGAINST WHAT THE STUDENTS HAD DONE.
AND WE DEVELOPED DURING THAT WEEK THE BASIC PATTERN
THAT ED LATER USED TO TRY AND PROMOTE CONSISTENCY. EVERYONE
WOULD CODE THE SAME CASE, THEN WE WOULD MAKE COMPARISONS TQ SEE
THE DEGREE OF CONSISTENCY THAT WAS EMERGING BETWEEN THE RESULTS.
Gl. I’M SORRY. YOU MEAN THAT ALL FIVE STUDENTS WOULD CODE THE
SAME CASE?
A. THAT“S RIGHT. WED GET ONE FILE THAT ON THE BASIS OF OUR
EXPERIENCE, OR MY EXPERIENCE. WAS AN ILLUSTRATIVE FILE THAT HAD
A CERTAIN AMOUNT OF COMPLEXITY BUT WAS NOT OVERWHELMING. AND
THAT’S HOW WE BEGAN. AND EACH STUDENT CODED THOSE FILES, AND
THEN WE, WE BEING ED AND I, WOULD CHECK WHAT WAS DONE, AND --
Q. EXCUSE ME?
A. NO. THAT’S ALL RIGHT.
Qe DID YOU HAVE ANY DISCUSSION SESSIONS WHERE YOU DISCUSSED
PROBLEMS THAT EMERGED OR CODING AMBIGUITIES?
A. THIS TRAINING WAS DONE IN A LARGE ROOM THAT WOULD
APPROXIMATE THIS COURTROOM, AND STUDENTS SAT UP ON, BEHIND A
BENCH, AND DID THE CODING AND ED AND I SAT DOWN IN FRONT, AND WE
DISCUSSED THE PROBLEMS FROM MORNING TILL NIGHT. THERE WERE NO,
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BALDUS - DIRECT
THERE WAS NO SHORTAGE OF ISSUES AND WE GRADUALLY CAME TO FOCUS
DURING THAT FIRST WEEK ON THE AREAS WHERE WE NEEDED GUIDANCE.
AND GUIDELINES. AND WE ACHIEVED SOME SENSE OF HOW WE WERE GOING
TO PROCEED DURING THAT FIRST WEEK.
Qe. WERE THE STUDENTS EVER GIVEN WRITTEN INSTRUCTIONS AS WELL
AS THIS ORAL SET OF INSTRUCTIONS THAT CONTINUED DURING THE WEEK?
A. YES, THEY RECEIVED A WRITTEN SET OF INSTRUCT IONS AT THE
OUTSET.
A. LET ME ASK YOU TO TURN TO DB-43 MARKED FOR IDENTIFICATION.
CAN YOU IDENTIFY THAT DOCUMENT, PROFESSOR BALDUS?
Fe YES, THIS IS A DOCUMENT ENTITLED “INSTRUCTIONS FOR CODING
GEORGIA PAROLE BOARD QUESTIONNAIRE. MAY, 1981."
THIS. HOWEVER. IS NOT THE DOCUMENT THAT WAS HANDED TO
THE STUDENTS AT THAT TIME. THIS REPRESENTS THE DISTILLATION AND
RESTATEMENT OF ALL THE RULES THAT HAD EMERGED FROM THE CODING
PROCESS OVER THE COURSE OF THE SUMMER.
QR. LET ME ASK YOU TO CLARIFY THAT?
A. THE -- GO AHEAD.
Wo. WELL, THE BEGINNING OF THE SUMMER THEY RECEIVED A DOCUMENT
THAT HAD FEWER INSTRUCTIONS THAN THIS ON IT?
A. YES, IT WAS ABOUT A FIFTH OF THE SIZE OF THIS DOCUMENT, AND
IT LAID OUT THE GENERAL GUIDELINES. BUT DID NOT HAVE THE DETAIL
THAT THIS ONE DOES. AND WHAT HAPPENED OVER THE COURSE OF THE
SUMMER WAS THAT AS ISSUES AROSE. THEY WERE PHONED BACK TO ME IN
IOWA. I WOULD LOOK AT ALL THE ISSUES. AND ED CATES WOULD REDUCE
BALDUS - DIRECT
1 THE CODING RULE TQ BE APPLIED TO WRITING, AND THE STUDENTS THEN
2 BUILT A NOTEBOOK OF ALL THESE RULES. AT THE END OF THE SUMMER.
3 ED PUT THE RULES TOGETHER INTO A RESTATEMENT, AND THAT'S
4 DB-43 IS, A FINAL STATEMENT OF THE PROCEDURES THAT WERE FOLLOWED
oS BY THE STUDENTS IN GEORGIA. :
Qe WHAT WAS THE PURPOSE OF SUCH A WRITTEN SET OF INSTRUCTIONS,
PROFESSOR BALDUS?
A. TO PROVIDE GUIDELINES FOR THE STUDENTS IN THEIR CODING
“
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DECISIONS AND TO, THE ULTIMATE PURPOSE WAS TO INSURE CONSISTENCY
10 IN THE CODING BY THE DIFFERENT STUDENTS.
11 QW. AND WHAT WAS DONE IF A RULE WAS MADE BY YOU AT SOME POINT
232 DURING THE SUMMER SAY IN JULY OR AUGUST OF 1931, DID THAT
13 AFFECT ANY OF THE QUESTIONNAIRES THAT HAD PREVIOUSLY BEEN CODED?
14 Fre MY INSTRUCT ION, WHEN WE WOULD MAKE SUCH A RULE. WOULD BE TO
13 PUT IT IN THE SET OF PROCEDURES AND THEN FOR THE STUDENTS TO GO
16 BACK AND CHANGE OR CHECK, FIRST, ANY OF THE EARLIER CASES THAT
17 HAD BEEN CODED TO INSURE THAT THOSE CASES HAD BEEN CODED IN A
13 MANNER THAT WAS CONSISTENT WITH THE RULE THAT HAD JUST BEEN
19 ESTABLISHED.
® 20 Q. LET ME ASK YOU, -—-
21 MR. BOGER —-- AT THIS TIME. YOUR HONOR, I MOVE THE
22 ADMISSION OF DB-43 INTO EVIDENCE.
23 MS. WESTMORELAND: YOUR HONOR, I OBJECT TO DB-43. MY
<4 UNDERSTANDING FROM THE TESTIMONY IS THAT THIS DOCUMENT ITSELF
25 WAS NOT EVEN PREPARED UNTIL AFTER THIS SUMMER SESSION TOOK
¥
BALDUS - DIRECT
PLACE. IT DOES NOT REFLECT IN ITSELF WHAT WAS TOLD TO THE
IY
CODERS. EITHER AT THE BEGINNING OF THE SUMMER NOR DOES IT
REFLECT WHICH OF THESE WERE TOLD WHEN DURING THE SUMMER.
THIS DOCUMENT ITSELF APPARENTLY WAS NOT PRESENTED TO
THE CODERS. AND WOULD BE IRRELEVANT AT THIS TIME.
THE COURT: FOR THE PURPOSES THAT YOU’RE OBJECTING TO
IT, YOU’RE PROBABLY RIGHT. IT IS NOT EVIDENCE OF WHAT THE
CODERS WERE GIVEN, TOLD OR WHATEVER. IT MIGHT BE A
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10 FOR THE PURPOSES OF DEMONSTRATING WHAT RULES THE
31 PROPONENT OF THE STUDY BELIEVES WERE APPLIED IN ENCODING THE
12 DATA, OR FORMING THE DATA BASE. I THINK IT’S PROBABLY
13 ADMISSIBLE.
14 MS. WESTMORELAND: WITH THAT LIMITATION. YOUR HONOR.
13 THAT WOULD BE FINE. 16 MR. BOGER: SO IT’S ADMITTED IN EVIDENCE?
17 THE COURT: THAT’S RIGHT.
13 MR. BOGER: THANK YOU, YDUR HONOR.
é 19 BY MR. BOGER:
20 R. PROFESSOR BALDUS, YOU MENTIONED THAT YOU WERE IN ATLANTA
21 FOR A WEEK WITH STUDENTS AT THE OUTSET OF THE SUMMER ENGAGED IN
22 SOME TRAINING PERIOD.
23 WHAT DID YOU DO THEREAFTER?
24 DID YOU REMAIN IN GEORGIA?
25 A. NO. I RETURNED TO THE UNIVERSITY OF IOWA, AND THEREAFTER
313
BALDUS - DIRECT
KEPT IN DAILY CONTACT WITH THE STUDENTS, SPECIFICALLY IN DAILY
TY
2 | CONTACT WITH ED GATES, WHO WAS THE SUPERVISOR HERE.
3 AND AT THE BEGINNING WE HAD CONVERSATIONS THAT WERE
4 | FREQUENTLY MORE THAN ONCE A DAY, BUT AS TIME WENT ON. WE WOULD
s | DEVELOP A REGULAR POINT FOR MEETING, AND RESOLVE ANY ISSUES THAT
56 | CAME UP.
% 2 |@. AND DID THIS CONTINUE THROUGHOUT THE COURSE OF THE SUMMER?
8 A. ‘ves. Ir oto.
9 AS THE SUMMER WORE ON» THE FREQUENCY OF THE MEETINGS
10 | AND CONVERSATIONS WAS REDUCED.
11 BUT WE MAINTAINED PERIODIC CONTACT AND ED WOULD COLLECT
12 |THE PROBLEMS. AND HOLD THEM TOGETHER, AND THEN WHEN WE WOULD
13 TALK HE WOULD PRESENT THEM TO ME.
14 AND ON ONE OTHER OCCASION, I VISITED GEORGIA AGAIN
15 DURING THE SUMMER.
16 Q. WHEN WAS THAT?
17 A. THAT WAS IN THE LATTER PART OF JULY. 1981.
18 Q. WHAT WAS THE PURPOSE OF COMING BACK TO GEORGIA?
19 A. WELL, THE PURPOSE WAS TO CHECK AGAIN TO BE SURE THERE WERE
20 NO IMPORTANT PROBLEMS THAT HAD ARISEN, AND NONE HAD.
21 MR. BOGER: YOUR HONOR, AT THIS TIME. WE HAVE NO
22 FURTHER QUESTIONS OF PROFESSOR BALDUS.
23 WHAT WE PROPOSE TO DO IS LET HIM LEAVE THE STAND AND
24 CALL EDWARD GATES WHO WAS IN CHARGE OF THE CODING DURING THE
23 SUMMER OF 1981 AND WHO HAD DONE CODING HIMSELF IN 1920. IN
314
BALDUS = DIRECT
1 TERMS OF THE PRESENTATION OF THE CASE, THIS SEEMS TO US THE BEST
2 THING TO DO. WE WOULD BE PERFECTLY HAPPY TO HAVE THE STATE
EITHER CROSS-EXAMINE PROFESSOR BALDUS AT THIS TIME ON HIS
TESTIMONY TO DATE OR TO RESERVE THEIR CROSS-EXAMINATION.
WE, OF COURSE. INTEND TO RECALL HIM AFTER ED GATES HAS
3
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& FINISHED DESCRIBING THIS DATA COLLECTION PROCESS. AND PROFESSOR
7 BALDUS AT THAT POINT WOULD MOVE INTO DATA ENCODING AND DATA
8 ANALYSIS WHICH WOULD COMPLETE HIS TESTIMONY AT SOME LATER
| PERIOD.
10 BUT OUR OBSERVATION IS THAT HIS TESTIMONY ON DATA
11 ANALYSIS MIGHT ITSELF BE SUFFICIENTLY LENGTHY THAT AT THAT POINT
12 TESTIMONY FROM THE CODER BACK IN THE SUMMER OF “81 WOULD SEEM
13 STALE AND QUT OF ORDER.
14 SO WE’RE REALLY AT THE STATES DISPOSAL ON WHETHER THEY
15 WISH TO CROSS-EXAMINE PROFESSOR BALDUS NOW, OR TO RESERVE THEIR
146 CROSS-EXAMINATION AND WHICH WILL GIVE THEM FULL RIGHT TO DO.
17 UNTIL THE END OF ALL PROFESSOR BALDUS” TESTIMONY.
18 THE COURT: LET ME ASK YOU A QUESTION. WE HAVE SPENT A
19 DAY AND A HALF AND I HAVEN’T HEARD ANY EVIDENCE YET ABOUT THE
20 ISSUES HERE.
21 ARE YOU CONCERNED THAT THE STATE CHALLENGES THE |
22 RELIABILITY OF YOUR DATA BASE OR ARE YOU JUST DOING THIS TO BE
23 CAUTIOUS AND PRECISE?
24 MR. BOGER: WELL, I THINK PERHAPS A LITTLE OF BOTH.
23 YOUR HONOR.
BALDUS - DIRECT
MY BRIEF EXPOSURE TO THE LITERATURE. IF YOU WOULD. OF
pa
LITIGATION IN THIS AREA SUGGESTS THAT ONE CANNOT BE TOO
CAUTIOUS. AND OFTENTIMES. WHEN ONE COMES IN EVEN WITH GOOD
DATA, IMPORTANT DATA. THAT AT SOME STAGE, EITHER AT TRIAL LEVEL
OR ON APPEAL, SOMEONE BEGINS TO OBJECT THAT WE DON’T KNOW ENOUGH
ABOUT THE FOUNDATION FOR HOW THIS DATA WAS, WERE COLLECTED OR
WHETHER THE CODERS WERE ADEQUATELY’ INSTRUCTED, OR WHETHER
CAREFUL PROCEDURES HAD BEEN FOLLOWED. AND, OF COURSE. THAT’S
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BEEN THE MOTIVATION FOR WHAT WE‘VE GONE THROUGH.
10 THE COURT: IT SEEMS TO ME THE PROOFS IN THE
11 ~~ | PUDDING, ISN‘T IT, MR. BOGER?
12 MR. BOGER: WELL, I WISH THAT WERE THE CASE. WE WOULD
13 HAVE STARTED WITH THE PUDDING.
14 BUT VERY OFTEN SOMEONE CAN SAY THAT THE NUMBERS LOOK
15 WONDERFUL BUT THEY MAY HAVE BEEN COLLECTED BY DRUNKS ON THE
14 WEEKEND, THAT KIND oF THING. AND SO IN DATA COLLECTION AND
17 PRESENTATION EFFORTS OF THIS SORT IT’S BEEN OUR OBSERVATION IN
18 COURT CASES AND IN THE LITERATURE THAT ONE HAS TO AT LEAST MAKE
P) 19 CLEAR TO THE COURT, DECIDING PARTY BELOW AND ON APPEAL, IF IT
20 COMES TO THAT.
21 THE COURT: WELL, I THINK IN ACADEMIC LITERATURE THAT'S
22 PROBABLY NECESSARY BECAUSE THE READER HAS NO WAY OF HAVING
23 ACCESS TO THE DATA BASE AND COMPARING IT WITH ORIGINAL DATA TO
249 SEE WHETHER IT“S WELL DONE.
23 I DON‘T KNOW WHETHER YOUVE GOT TO DO THAT IN A COURT
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BALDUS - DIRECT
CASE UNLESS ITS CHALLENGED. WHAT I“M TRYING TO FIND OUT IS IS
THE DATA BASE BEING CHALLENGED?
MR. BOGER: MY UNDERSTANDING IS THAT DATA COLLECTION
PROCEDURES HAVE BEEN SUBJECT TO SOME CHALLENGES IN THE
OBJECTIONS THAT THE STATE HAS MADE. IT’S A LITTLE UNCLEAR AS TO
WHETHER THEY HAVE CHALLENGED AS SPECIFICS OF THE DATA BASE,
BECAUSE THEIR OBJECTIONS ARE SOMEWHAT VAGUE AND AMBIGUOUS. WE
TALKED ABOUT THAT PROBLEM A LITTLE BIT IN THE PRETRIAL
CONFERENCE. AND I‘VE REALLY NOT GOTTEN A FULL STATEMENT FROM
THE STATE ON, SPECIFICALLY OF THE ITEMS OF EVIDENCE OR ITEMS OF
DATA THAT THEY CHALLENGE, BUT I DO KNOW THERE’S BEEN SOME
SUGGESTIONS THAT THE PROCEDURES FOLLOWED IN DATA COLLECTION WERE
NOT AS STRICT AS THEY MIGHT HAVE BEEN.
THAT’S BEEN THE MOTIVATION FOR MUCH OF THE TESTIMONY.
BUT IN TERMS OF OUTLINING WHERE WE WOULD EXPECT TO GO.
ONCE MR. GATES TESTIFIED AS TO WHAT HAPPENED IN THIS SUMMER IN
DATA COLLECTION, PROFESSOR BALDUS HAS A VERY MINIMAL AMOUNT OF
TIME TO TALK ABOUT HOW YOU PUT THE DATA ON THE MACHINE. WE’RE
AT DB-44 AND HE STARTS AT ABOUT DB-30 TO DESCRIBE HIS RESULTS OF
HIS ANALYSIS AND THE WHOLE REST OF HIS TESTIMONY IS THE PUDDING |
THAT I HOPE WILL BE THE PROOF FOR YOUR HONOR. |
WE OBVIOUSLY HAVE NOT MEANT TO EXTEND THIS HEARING
BEYOND ITS NECESSARY LENGTH BUT —-
THE COURT: I WAS JUST THINKING ABOUT WHETHER IT WAS
MORE LOGICAL FOR YOU TO PRODUCE THE PUDDING AND THEN TO GO INTO |
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BALDUS - DIRECT
THE PROCESS IN DIRECT RESPONSE OR IN REBUTTAL OR NOT. I GUESS
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WE’VE STARTED OUT THIS WAY. WE MIGHT AS WELL FINISH UP THIS WAY.
AND I THINK YOUR SUGGESTION IS ACCEPTABLE TO ME UNLESS MS.
WESTMORELAND CAN POINT OUT SOME FLAW IN IT.
MS. WESTMORELAND: NO, YOUR HONOR.
THE COURT: VYOU’RE GOING TO WANT TO HEAR FROM MR. GATES
BEFORE YOU CROSS-EXAMINE BOTH OF THEM ARE DO YOU WANT TO
CROSS-EXAMINE DOCTOR BALDUS FIRST, OR HOW DO YOU WANT TO DO
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10 MS. WESTMORELAND: I THINK I WOULD JUST RESERVE MY
11 CROSS-EXAMINATION OF PROFESSOR BALDUS AND DO MY ENTIRE
12 CROSS~EXAMINATION AT ONE TIME.
13 THE COURT: OF HIM?
14 MS. WESTMORELAND: OF PROFESSOR BALDUS, YES.
135 THE COURT: CAN YOU DO IT EARLIER?
16 MS. WESTMORELAND: SUBJECT TO NOT WISHING TO WAIVE
17 | SOMETHING THAT MAY COME TO MY ATTENTION LATER, I PERHAPS COULD,
18 | YOUR HONOR. YES, IF THAT —— IF THE COURT IS CONCERNED ABOUT
ORDERLY PROCEDURE AND NOT JUMPING ARGCUND TOO MUCH, I CAN
20 |APPRECIATE THAT.
21 THE COURT: MR. BOGER IS TRYING TO COMPARTMENTALIZE HIS
22 |RECORD AND THAT DOESNT HELP SUBSEQUENT FOLKS WHO HAVE TO DEAL
23 |WITH THIS RECORD, UNLESS YOU COMPARTMENTALIZE. TOO.
24 1 DON‘T GUESS I HAVE A STRONG OBJECTION TO THAT.
23 SO YOU’RE GOING TO CALL MR. GATES AFTER LUNCH, THEN?
218
BALDUS ~ DIRECT
1 MR. BOGER: I GUESS THAT'S RIGHT, YOUR HONOR.
2 THE COURT: AND WHEN WE ARE DONE WITH YOUR DIRECT. AND
3 THEN HER CROSS OF HIM, IF THATS ALL YOU’RE GOING TO PUT HIM ON
4 FOR, 1S DATA GATHERING. THEN WE WILL RETURN TO PROFESSOR BALDUS.
S MR. BOGER: THAT'S RIGHT.
THE COURT: FOR THE PUDDING.
MR. BOGER: AND THE STORY WILL CONTINUE, WE HOPE. i
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8 ALTHOUGH TIM FORD, MY COLLEAGUE. WILL ACTUALLY BE EXAMINING
9 EDWARD GATES. HE’S PREPARED THAT WITNESS, AND I WILL THEN TAKE
0 PROFESSOR BALDUS BACK THROUGH THE REST OF HIS STORY.
11 THE COURT: ALL RIGHT. THAT’S AGREEABLE.
12 MR. BOGER: THANK YOU, YOUR HONOR.
13 THE COURT: LET“S GO AHEAD AND GO TO LUNCH WHILE WE“RE
14 IN RECESS.
15 MR. FORD, DO YOU HAVE A QUESTION?
16 MR. FORD: YES, I DO, YOUR HONCR.
17 DURING THE LUNCH HOUR I ANTICIPATE TRYING TO GET IN
18 TOUCH WITH PROFESSOR BERK WHO WILL BE ONE OF THE WITNESSES WE é 19 MENTIONED YESTERDAY, AND YOUR HONOR HAD ME A RULING WITH REGARD
20 TO THE RULE ON WITNESSES, I GUESS DEFERRED RULING ON THAT
21 SUBJECT.
22 I INFORMED PROFESSOR BERK CONSISTENT WITH YOUR HONOR’S |
23 RULING LAST NIGHT THAT HE WAS NOT TO AT THIS POINT SPEAK WITH
24 PROFESSOR BALDUS OR WOODWORTH ABOUT THE TESTIMONY OR ANYTHING,
25 REALLY WITHOUT SOMEONE THERE. IN A STRUCTURED ENVIRONMENT. THAT
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BALDUS - DIRECT
WASN’T GOING TO HAPPEN ANYWAY, AT THIS POINT.
MY QUESTION NOW IS WHETHER PROFESSOR BERK IS GOING TO
COME OUT HERE AS PREVIOUSLY SCHEDULED, WHICH IS TOMORROW NIGHT.
GIVEN THE POSSIBILITY THAT PERHAPS I THINK PROFESSOR WOODWORTH
AND EVEN PROFESSOR BALDUS MIGHT BE ON FOR MUCH OF THURSDAY,
OUR INTENTION WAS THAT HE BE IN COURT TO HEAR THAT
TESTIMONY, AND IN A SENSE. PROFESSOR BERK IS REALLY OUR DOCTOR
KATZ. HE IS OUR CONSULTING EXPERT, RATHER THAN OUR EXPERT WHO
IS AN ACTOR IN THE PROCESS, AND FOR THAT PURPOSE, I THINK
CLASSICALLY HE’S THE KIND OF EXPERT WHO OUGHT TO BE IN COURT TO
HEAR THESE DISPUTES BROUGHT OUT. HE CERTAINLY HAS NOT BEEN
PRIVY TO ALL THE THINGS THAT HAVE HAPPENED ALONG THE WAY, HES
READ THE REPORTS ON BOTH SIDES, BUT HE IS THE KIND OF EXPERT WHO
I THINK NEEDS TO BE IN THE COURTROOM TO ADVISE THE COURT AND TO
DEAL WITH THOSE KINDS OF QUESTIONS.
SO 1 WOULD ASK THAT THAT BE PERMITTED, AND THAT THE
COURT ADVISE US NOW. SO IN CASE THAT CAN‘T BE PERMITTED. WE CAN
ADVISE HIM ABOUT HIS SCHEDULE IN COURT BECAUSE I DON’T THINK HE
WANTS TO COME TO ATLANTA AND SIT IN THE HALL.
THE COURT: IS HE GOING TO TESTIFY ABOUT ANY REVIEW
THAT HE HAS CONDUCTED OF THE DATA OR PROCESSES EMPLOYED BY
PROFESSOR BALDUS, ET AL?
MS. BOLEYN: HE IS. YOUR HONOR, AND HE“S GOING TO
COMPARE THOSE TO THE DATA AND PROCESSES EMPLOYED BY, GENERALLY
IN THE FIELD OF STATISTICS. AND ALSO IN THE WIDE RANGE OF
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CRIMINAL JUSTICE RESEARCH OF A SIMILAR NATURE. ET CETERA. THAT
HE“S BEEN RESPONSIBLE FOR REVIEWING OVER THE LAST COUPLE OF
YEARS.
THE COURT: IF HE IS GOING TO TESTIFY CONCERNING THE
WORK PRODUCT AND HE HAS PREVIOUSLY EXAMINED THE WORK PRODUCT,
THEN I WISH HIM TREATED AS A SEQUESTERED WITNESS.
IF HE IS GOING TO TESTIFY BASED ONLY ON WHAT HE HEARS
HERE IN COURT. THAT’S ANOTHER MATTER.
| MR. FORD: I GUESS THAT WOULD MEAN THAT HE IS A
SEQUESTERED WITNESS, YOUR HONOR.
THE COURT: IM NOT REALLY UP TIGHT ABOUT IT, BUT LET
ME TELL YOU THAT ALTHOUGH I“M A JUDGE. I AM BASICALLY A
HUMAN BEING, AND I‘M THE FINDER OF THE FACT IN THIS CASE. AND IF
YOUU WANT TO HAVE HIM SIT HERE IN COURT. AND LISTEN TO THE EXTENT
TO WHICH THE STATE THROWS LANCES AT THIS WITNESS AND THE OTHER.
AND THEN PUT HIM ON THE STAND, I WON‘T BE REAL TENSE ABOUT IT.
BUT I PROBABLY WON‘T BELIEVE HIM EITHER. OR I WILL SAY I WILL
LOOK AT HIM SOMEWHERE BETWEEN A CRITICAL AND CYNICAL EYE.
SO I DON’T KNOW. IF YOU WANT ME TO CONSIDER HIM AS AN
INDEPENDENT EVALUATOR OF DOCTOR BALDUS” AND PROFESSOR ——
MR. BOGER: WOODWORTH.
MS. WESTMORELAND: WOODWORTH. YOUR HONCR.
THE COURT: WOODWORTH’S WORK, THEN I WOULD JUST AS SOON
HIM NOT KNOW ANYMORE ABOUT THE DEFECTS THAN HE NOW KNOWS. AND
HAVE NOT SEEN OR LEARNED HOW THEY WERE EXPLOITED BY THE STATE.
321
BALDUS - DIRECT
1 THEN I HAVE A CHANCE TO JUDGE A LOT OF THINGS ABOUT HIS
INDEPENDENCE AND CREDIBILITY. IT’S KIND OF, AT ONE STAGE IT’S A
FAIRNESS THING. BUT AT ANOTHER STAGE IT DEPENDS ON WHAT KIND OF
REACTION YOU WANT TO HAVE FROM ME TO HIS TESTIMONY.
2
3
4
3 IF THE GUTS OF IT IS TO GET AN INDEPENDENT. AN
é EVALUATION OF THE PROCESS AND DATA BASE AND CONCLUSIONS AND YOU
7 WANT ME TO BE IMPRESSED WITH HIS INDEPENDENCE AND ALL THAT SORT
8 OF THING, THEN I THINK YOU“LL TREAT HIM AS A SEQUESTERED
9? WITNESS. BEARING IN MIND YOU‘VE GOT A COURTROOM FULL OF EXPERTS
10 HERE ALREADY TO TELL YOU WHATS GOING ON.
11 MR. FORD: OUR PURPOSE IS TO BRING YOUR HONOR THE TRUTH
12 IN EVERY WAY WE CAN. AND WE --
13 THE COURT: OH, I“M NOT SUGGESTING THAT YOU ARE
14 INTENTIONALLY TRYING TO PUT UP FUDGED EVIDENCE. IT“S JUST HUMAN
15 NATURE THAT IF A WITNESS HAS BEEN EXPOSED TO WHAT SORT OF
146 CROSS-EXAMINATION IS COMING, HE“S NECESSARILY NOT GOING TO GIVE
37 HIS MOST CANDID RESPONSE BUT A RETHOUGHT., REFINED. ET CETERA.
18 SORT OF RESPONSE, AND THAT MAKES YOU KIND OF NOT PUT AS MUCH
19 FAITH IN HIM AS YOU DO IN THE WITNESS THAT IS RESPONDING IN THE
20 FIRST INSTANCE TO THE PROBLEM.
21 MR. FORD: I BELIEVE I UNDERSTAND YOUR HONOR’S RULING
22 AND I THINK FOR THE PURPOSES OF -—-
23 THE COURT: AS A MATTER OF LAW, I WOULD PREFER TO TREAT
24 HIM AS SEQUESTERED, NOTING THAT YOU ARE NOT, I DO NOT BELIEVE,
235 DISADVANTAGED IN THAT YOU HAVE GOT A HOST OF EXPERTS THAT I HAVE
322
BALDUS - DIRECT
ALLOWED.
: BEYOND THAT I WILL NOTE THAT IF YOU WANT TO RENEW YOUR
REQUEST, I WOULD SUGGEST TO YOU THAT YOU MIGHT BE IN DANGER OF
LESSENING THE IMPACT OF HIS TESTIMONY ON THE FINDER OF FACT. SO
BALANCING ALL OF THOSE, YOU CAN DECIDE WHETHER YOU WISH TO RENEW
IT AFTER LUNCH OR WHETHER YOU ARE SATISFIED TO DEAL WITH THE
ADVISERS YOU HAVE.
MS. BOLEYN: THANK YOU VERY MUCH, YOUR HONOR.
THE COURT: ALL RIGHT, WITH THOSE COMMENTS WELL BE IN
RECESS UNTIL QUARTER OF TWO.
(RECESS TAKEN.)
THE COURT: ALL RIGHT. MR. FORD, ARE YOU READY TO
PROCEED WITH YOUR NEXT WITNESS?
MR. FORD: WE ARE, YOUR HONOR. OUR NEXT WITNESS IS
EDWARD RAYMOND GATES.
THE COURT: ALL RIGHT, MR. GATES, COME UP TO BE SWORN.
THE CLERK: IF You WILL RAISE YOUR RIGHT HAND, SIR.
|
DO YOU SOLEMNLY SWEAR THE EVIDENCE YOU SHALL GIVE AT THE TRIAL NOW BEFORE THIS COURT SHALL BE THE TRUTH, THE WHOLE TRUTH, |
AND NOTHING BUT THE TRUTH, SO HELP YOU GOD? |
THE WITNESS: I DO.
THE CLERK: HAVE A SEAT ON THE WITNESS STAND. SIR,
AND STATE YOUR FULL NAME FOR THE RECORD.
THE WITNESS: MY NAME IS EDWARD RAYMOND GATES.
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G-A-T-E-S.
EDWARD RAYMOND GATES.
CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, BEING FIRST
DULY SWORN, TESTIFIED AS FOLLOWS:
DIRECT EXAMINATION
BY MR. FORD:
Q. MR. GATES, -——
MR. FORD: -- YOUR HONOR, IN THE SAME FASHION AS WE
PROCEEDED WITH PROFESSOR BALDUS. I HAVE PREPARED TWO BOOKS OF
EXHIBITS, OR SEVERAL BOOKS OF EXHIBITS, TWO OF WHICH I“M HANDING
THE CLERK, ONE FOR THE CLERK’S FILE AND ONE FOR YOUR HONOR-’S
USE.
THEY CONTAIN A NUMBER OF PREMARKED EXHIBITS, MARKED
EG-1 THROUGH EG-4B. COPIES OF THOSE DOCUMENTS HAVE BEEN
PROVIDED TO THE RESPONDENTS COUNSEL. MOST OF THEM WERE
PROVIDED YESTERDAY.
; SOME OF THEM WERE NOT AVAILABLE UNTIL TODAY. AND THE
ONES THAT WERE AVAILABLE TODAY. AND I THINK ALMOST ALL OF THEM
ARE DOCUMENTS THAT HAVE PREVIOUSLY BEEN MADE AVAILABLE TO THE
RESPONDENT AT ONE PQINT OR ANOTHER IN THE REPORTS.
THE COURT: ALL RIGHT. LET ME DO AN ADMINISTRATIVE
MATTER.
1 LIKE THESE BOOKS, AND I HAVE FOUND THEM VERY HELPFUL.
I AM GOING TO DIRECT THE CLERK TO REMOVE FROM THE BOOK THOSE
GATES - DIRECT
EXHIBITS THAT I SPECIFICALLY DO NOT ADMIT.
AT YOUR REQUEST. I WILL SEAL THOSE MATERIALS. AND MAKE
THEM A PART OF THE RECORD AND A PROFFER., $0 IF THE COURT OF
APPEALS REVERSES ME ON A POINT OF EVIDENTIARY LAW, THEY‘LL HAVE
THE EXHIBITS THERE IF THAT’S AGREEABLE TO EVERYONE.
MR. FORD: I BELIEVE THAT WOULD BE OUR DESIRE. YOUR
HONOR.
COULD I ASK THAT WE WAIT UNTIL THE CLOSE OF THE
PETITIONERS DIRECT CASE, IN CASE ANY OF THOSE MATERIALS ARE
CONNECTED UP OR PERHAPS UNTIL THE WHOLE PROCEEDING IN CASE THEY
DO END UP COMING IN, IF THAT --
THE COURT: THAT’S ALL RIGHT. THAT'S AGREEABLE.
MR. FORD: THANK YOU, VERY MUCH.
| BY MR. FORD:
Q. MR. GATES, YOU HAVE GIVEN YOUR NAME AND SPELLED IT.
WHERE DO YOU LIVE, SIR?
A. I LIVE AT 35 BURROUGHS STREET IN JAMAICA PLAIN,
MASSACHUSETTS, 02130,
(= 8 MR. GATES, COULD YOU POSSIBLY MOVE THE MICROPHONE A LITTLE
BIT CLOSER TO YOURSELF, SO ITLL PICK UP YOUR VOICE?
AND WHERE ARE YOU EMPLOYED?
A. RIGHT NOW I WORK FOR A PATENT LAW FIRM IN BOSTON CALLED
WOLF, GREENFIELD AND SACKS.
XR. AND WHAT’ S YOUR CAPACITY THERE?
A. I‘M LAW CLERK THERE.
325
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Qe. AND WHAT KIND OF WORK DO YOU DO AS A LAW CLERK?
-
2 | A. WELL. THEY HIRED ME BECAUSE I HAVE A BACKGROUND IN GENETICS
3 | AND I WORK PRIMARILY WITH CLIENTS THAT ARE INTERESTED IN
4 | PATENTING GENETIC ENGINEERING PRODUCTS.
s |@. THOSE ARE RESEARCH FIRMS IN THE BOSTON AREA?
5 la. VES.
% 7 |@. THAT ARE CLIENTS OF THIS FIRM?
8 {A ves.
9 |@. ARE YOU ALSO IN SCHOOL AT THIS TIME?
10 |A. YES. I AM. I AM CURRENTLY A THIRD-YEAR LAW STUDENT AT
11 |BOSTON UNIVERSITY LAW SCHOOL.
12 |@. YOUR THIRD YEAR WILL BE BEGINNING COME SEPTEMBER?
13 |A. YES.
14 QA. CALLING YOUR ATTENTION IN THE BINDER THAT-S BEEN PROVIDED
15 TO YOU TO THE DOCUMENT MARKED EG-1 AT THE BEGINNING OF THE
16 BINDER, AND I ASK YOU, DO YOU RECOGNIZE WHAT THAT IS?
17 A. YES, I DO. IT’S MY RESUME.
13 Ql. AND DO YOU KNOW, HAVE YOU SEEN IT BEFORE? |
19 A. YES, I
e
20 (FS AND DO YOU KNOW WHO IT“S PREPARED BY?
HAVE.
21 Ae YES, I DO. IT WAS PREPARED BY ME.
22 Q. AND IS IT CURRENT?
23 A. YES. IT IS.
24 Rea IS IT A COPY OR AN ORIGINAL THAT YOU HAVE IN THE BOOK
23 THERE?
326
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A. THIS IS A COPY.
Q. TRUE AND CORRECT COPY OF THE RESUME YOU PREPARED?
A. YES, IT IS.
a. ALL RIGHT.
MR. FORD: YOUR HONOR, AT THIS TIME. I WOULD OFFER
EG-1.
MS. WESTMORELAND: YOUR HONOR, IS THIS BEING OFFERED
JUST AS MR. GATE“S RESUME OR AS ONE HE PRESENTED TO PROFESSOR
BALDUS? I’M SOMEWHAT UNCLEAR ON THE PURPOSE FOR OFFERING THIS
EXHIBIT AT THIS TIME.
MR. FORD: I BELIEVE THE TESTIMONY WAS IT“S CURRENT,
YOUR HONOR.
BY MR. FORD:
Q. WHEN WAS THIS PREPARED. MR. OATES?
A. THIS WAS PREPARED YESTERDAY.
Q. AND WAS IT PREPARED SOLELY FOR THE PURPOSE OF THIS
LITIGATION?
A. YES, IT WAS. I HAD A COPY OF AN OLDER RESUME THAT WAS MORE
THAN A YEAR OLD. I PREPARED THIS, SO THE COURT WOULD HAVE A
CURRENT COPY.
MS. WESTMORELAND: MY CONCERN AT THIS POINT IS I
BELIEVE WHAT MAY BE AT ISSUE IS HIS QUALIFICATIONS AT THE TIME
HE ASSISTED PROFESSOR BALDUS. AND THE QUALIFICATIONS THAT WERE
CONSIDERED BY PROFESSOR BALDUS AT THAT TIME, RATHER THAN THE
CURRENT STATUS OF HIS QUALIFICATIONS.
327
GATES = DIRECT
WE WOULD OBJECT TO IT ON THAT BASIS. Ty
MR. FORD: YOUR HONOR, IT“S MY UNDERSTANDING THE
WITNESS” BACKGROUND AND SITUATION, EMPLOYMENT AND EVERYTHING, IS
ALWAYS A POTENTIAL ISSUE AND IT“S RELEVANT FOR THAT PURPOSE.
THE COURT: I THINK I CAN MAKE OUT BOTH FROM THE
RESUME. IF THAT’S THE ONLY OBJECTION YOU HAVE, MS. WESTMORELAND.
ILL ADMIT IT.
MS. WESTMORELAND: THAT’S THE ONLY OBJECTION. YOUR
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10 BY MR. FORD:
i1 G. MR. GATES, I WOULD LIKE TO ASK YOU A FEW QUESTIONS ABOUT
12 THE THINGS THAT ARE REFLECTED ON THIS RESUME, FIRST OF WHICH IS
13 YOUR SCHOOLING.
14 LET’S FOCUS NOW ON THE TIME PRIOR TO ANY INVOLVEMENT IN
15 THE MATTERS HERE AT ISSUE.
16 WHAT SCHOOLING DID YOU HAVE AS AN UNDERGRADUATE? HAD
17 | YOU COMPLETED THAT AT THAT TIME?
18 A. YES, I HAD. I GOT A BACHELORS OF SCIENCE IN BIOLOGY FROM
% 19 YALE UNIVERSITY IN 1977.
20 Q. AND DID YOU HAVE A MINOR DEGREE IN THAT AS WELL?
21 A. YES, I DID. THE MINOR WAS IN PSYCHOLOGY.
22 RQ. WHAT KIND OF COURSES DID YOU TAKE FOR THE BIOLOGY DEGREE
23 AND THE PSYCHOLOGY MINOR?
24 A. PRIMARILY, COURSES THAT HAD LABORATORY REQUIREMENTS WHEREIN
23 WE WOULD BE REQUIRED TO DO EXPERIMENTATION.
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a. AND DID ANY OF THOSE COURSES INVOLVE COLLECTION OF DATA IN
ANY FORM?
A. NEARLY EVERY ONE OF THE COURSES THAT HAD A LABORATORY
| REQUIREMENT REQUIRED EXTENSIVE COLLECTION OF DATA.
Q. AND THAT WOULD BE IN THE LABORATORY ENVIRONMENT, YOUR OWN
EXPERIMENTS?
A. THAT’S CORRECT.
@. DID ANY OF THOSE INVOLVE QUESTIONS OF STATISTICS?
A. SOME OF THEM DID.
Q. AND WAS THERE. DID YOU EVER TAKE A SPECIFIC STATISTICS
COURSE AT ANY POINT?
A. 1 HAD TAKEN ONE STATISTICS COURSE AS AN UNDERGRADUATE.
@. AND DID ANY OF YOUR COURSES DEAL WITH QUESTIONS OF
EXPERIMENTAL DESIGN DURING THE LABORATORY CONTEXT OR OTHER FORMS
OF DATA COLLECTION.
A. NONE OF THEM DEALT WITH THAT AS A SPECIFIC MATTER BUT IN
THE COURSE OF TAKING LABORATORY, LABORATORY PORTION OF ANY
COURSE. LABORATORY. EXPERIMENTAL DESIGN IS PART OF THE OVERVIEW
THAT YOU GET.
@. WHAT KIND OF GRADES DID YOU HAVE AT THE TIME OF YOUR
GRADUATION FROM YALE?
A. SOLID B.
Q. DID YOU HAVE ANY OTHER ACTIVITIES WHILE YOU WERE IN SCHOOL?
A. YES. 1 PLAYED ON THE VARSITY LACROSSE TEAM.
Q@. AND AFTER YOU GRADUATED FROM YALE IN 1977 BUT BEFORE YOU
|
GATES - DIRECT
BECAME INVOLVED IN THE STUDIES DISCUSSED HERE. DID YOU EVER HAVE
pb
2 ANY ADDITIONAL SCHOOLING?
3 A. YES, I DID. UPON GRADUATION, I WENT AS A SPECIAL STUDENT
4 TO THE UNIVERSITY OF MASSACHUSETTS TO BOLSTER MY SCIENCE
i 3 BACKGROUND. AND I TOOK FOUR SCIENCE COURSES.
& Gl. WHAT KINDS OF COURSES WERE THOSE?
. 7 A. PHYSICAL CHEMISTRY, IMMUNOLOGY, DEVELOPMENTAL BIOLOGY. AND
8 INVERTEBRATE ZOOLOGY.
9 Q. AFTER THAT WAS DONE, DID YOU OBTAIN ANY EMPLOYMENT.
10 IMMEDIATELY THEREUPON?
11 A. YES. ALMOST IMMEDIATELY AFTER THAT. 1 APPLIED FOR AND GOT
12 A JOB AT TUFTS UNIVERSITY MEDICAL SCHOOL IN THE CANCER RESEARCH
13 CENTER THERE.
14 A. WHAT WAS THE NATURE OF YOUR WORK AT TUFTS?
13 A. I WORKED IN A RESEARCH LABORATORY. AND THE PROJECT THAT WE
16 WORKED ON WAS TO CHARACTERIZE THE RECEPTOR MOLECULES ON
17 IMMUNOLOGICAL CELLS.
13 Q. AND WHO WERE YOU WORKING WITH AT THAT TIME?
% 19 A. I WORKED WITH PROFESSOR FRANCIS OWEN. WHO IS A PROFESSOR AT
20 THAT TEACHING HOSPITAL.
21 (nS AND WERE THESE EXPERIMENTS OR WAS THIS HOSPITAL TREATMENT
22 TYPE WORK?
23 A. NO, THIS WAS BASIC SCIENCE. EXPERIMENTATION.
24 Gl. AND DID THIS INVOLVE ANY KIND OF SAMPLING TECHNIQUE OR
25 ANYTHING LIKE THAT?
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A. THE RESEARCH DESIGN OF WHAT WE WERE DOING INVOLVED
CHARACTERIZING THE GENETIC STRUCTURE OF DIFFERENT POPULATIONS OF
MICE, SO SOME OF THE RESULTS OF THE EXPERIMENTATION HAD TO BE
STATISTICALLY ANALYZED BUT THE FOCUS OF THE RESEARCH EFFORT WAS
ON DEVELOPING THE DATA SET.
Q. WAS THAT WHERE YOUR PART OF THE WORK WAS?
Fe YES.
Qe CAN YOU TELL US A LITTLE BIT MORE ABOUT WHAT THAT MEANS?
Fe THAT MEANS ON A DAILY BASIS. YOU DO CELLULAR MANIPULATIONS
AND MEASURE THE CONSEQUENCES OF THOSE MANIPULATIONS, AND OBSERVE
AND RECORD THE DATA. AND THEN OVER A PERIOD OF TIME, ANALYZE
| THAT DATA, AND BASED ON YOUR RESULTS, THAT CHARTS THE COURSE OF
FUTURE EXPERIMENTS THAT YOU DO.
Ge I SEE FROM YOUR RESUME THAT THAT WORK ULTIMATELY RESULTED
IN A PUBLICATION ON THAT EXPERIMENTATION, IS THAT RIGHT?
A. YES, IT DID.
Go. AND THAT’S THE EUROPEAN JOURNAL OF IMMUNOLOGY?
A. YES, I WAS A CO-AUTHOR ON THAT PAPER WITH PROFESSOR OWEN.
Qe NOW. IMMEDIATELY ABOVE THAT ENTRY FOR YOUR WORK AT TUFTS,
ON YOUR RESUME I SEE THAT YOU LIST INVOLVEMENT AS RESEARCH
ASSISTANT, IOWA LAW SCHOOL. IN SOME RESEARCH ON SOME MURDER
TRIALS? |
A. THATS CORRECT.
a. WHEN DID YOU BEGIN THAT WORK?
A. 1 BEGAN THAT WORK IN AUGUST. 1980.
GATES - DIRECT
QA. AND HOW DID YOU BECOME INVOLVED IN THAT?
A. I WAS INTERESTED IN APPLYING TO LAW SCHOOL AND GETTING SOME
EXPERIENCE IN THE LEGAL PROFESSION AND A FRIEND WHO KNEW ABOUT
THE JOB WITH PROFESSOR BALDUS RECOMMENDED ME FOR THE POSITION.
Q. WHO WAS THAT FRIEND?
A. CATHY CHRISTIAN.
Q. WHERE DID YOU KNOW HER FROM?
A. WE WERE HOUSEMATES AT THE TIME.
A. DID YOU KNOW WHERE SHE WAS —- WAS SHE INVOLVED IN SCHOOL AS
WELL?
Ae YES, WELL, SHE WAS WORKING AT NORTHEASTERN UNIVERSITY. AND
HER CAPACITY THERE WAS TO DEVELOP THE COOPERATIVE EDUCATION JOBS
THAT THEY HAVE.
WHAT THAT IS IS THAT NORTHEASTERN HAS A SYSTEM WHERE
YOU SPEND SOME OF YOUR TIME IN SCHOOL AND SOME OF YOUR TIME :
WORKING IN JOBS. AND SHE DEVELOPED THE JOBS FOR THE STUDENTS TO
WORK AT.
Gla DO YOU KNOW WHAT HER EDUCATIONAL BACKGROUND WAS?
Fe SHE HAS A MASTERS IN EDUCATION FROM COLUMBIA.
MS. WESTMORELAND: YOUR HONOR. I OBJECT TO HIS STATING
WHAT HER EDUCATIONAL BACKGOUND IS UNLESS HE CAN GIVE SOME BASIS
FOR HIS OWN PERSONAL KNOWLEDGE OF HER EDUCATIONAL BACKGROUND.
BY MR. FORD:
A. DID YOU EVER KNOW HER WHILE SHE WAS IN SCHOOL?
A. YES.» I DID.
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GATES - DIRECT
DID YOU EVER SEE HER IN CLASS?
NO. SHE WAS IN SCHOOL IN COLUMBIA WHEN I WAS IN BOSTON.
YOU KNEW HER AT THAT TIME?
YES, SIR.
MR. FORD: I THINK IT PERHAPS GOES TO THE WEIGHT. YOUR
OR, BUT NOT THE ADMISSIBILITY.
THE COURT: IT’S CLASSIC HEARSAY, MR. FORD. I DON’T
W THAT IT MATTERS, BUT I SUSTAIN THE OBJECTION.
MR. FORD: THANK YOU, YOUR HONOR.
MR. FORD:
WHO HIRED YOU FOR THE JOB AT IOWA LAW SCHOOL?
PROFESSOR BALDUS DID.
AND WHEN DID THAT OCCUR?
THAT OCCURRED IN JULY OF 1980.
AND DID YOU SPEAK WITH HIM IN PERSON OR OVER THE TELEPHONE.
LETTER? HOW DID YOU COMMUNICATE WITH HIM?
I COMMUNICATED WITH HIM BY LETTER AND OVER THE TELEPHONE.
AND WHAT WERE YOU TOLD YOUR DUTIES IN THIS FUNCTION WOULD
I WAS TOLD THAT THE DUTIES WOULD BE TO COLLECT INFORMATION
M VARIOUS SOURCES IN THE STATE OF GEORGIA.
WERE YOU TO BE PAID FOR THIS WORK?
YES. $5.00 AN HOUR.
AND HOW LONG WAS THE JOB TO LAST?
THREE MONTHS.
333
GATES - DIRECT
Qe I TAKE IT YOU ACCEPTED THE JOB AT THE SAME TIME, ROUGHLY.
TA
OR WAS THERE ANY TRANSITION IN HERE, BETWEEN THE TIME YOU WERE
OFFERED IT AND THE TIME YOU ACTUALLY STARTED WORK?
A. THERE WAS MAYBE A TWO OR THREE WEEK PERIOD WHERE I SENT MY
RESUME TO PROFESSOR BALDUS AND THEN HE CHECKED A REFERENCE. AND
THEN OFFERED ME THE POSITION.
Qe. AND YOU ACCEPTED?
A. YES.
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Wo. WHAT WAS THE FIRST THING YOU DID NOW ON THAT JOB?
10 A. THE FIRST THING I DID WAS IN RESPONSE TO SOME PRACTICE
11 QUESTIONNAIRES THAT PROFESSOR BALDUS SENT TO ME IN BOSTON. AND
12 HE SENT SOME INSTRUCTIONS FOR CODING THE QUESTIONNAIRES, AND
13 ABSTRACTS OF INFORMATION TO BE CODED INTO THEM AND THEN I DID A
14 | COUPLE OF DRY RUNS THROUGH THOSE QUESTIONNAIRES.
13 a. AND YOU DID THAT WHERE?
16 A. IN BOSTON.
17 QR. CALLING YOUR ATTENTION TO THE DOCUMENT MARKED EG-2, IN THE
18 FOLDER THAT’S BEEN PROVIDED TO YOU.
® 19 : DO YOU RECOGNIZE WHAT THAT IS?
20 A. IM NOT SURE IF I HAVE THAT. I HAVE ONE THAT’S PROBABLY
21 EG-2. YOU'D HAVE TO TAKE A LOOK AT IT, THOUGH.
22 Gl. SAYS AT THE TOP, "MEMORANDUM?" 23 a YES.
24 Q. DO YOU RECOGNIZE WHAT THAT IS?
25 A. YES, I DO.
334
GATES - DIRECT '
A. WHAT IS IT?
A. THOSE ARE THE INSTRUCTIONS THAT PROFESSOR BALDUS SENT TO
CATHY CHRISTIAN AND MYSELF.
QR. IS THAT AN ORIGINAL OR A COPY OF THE INSTRUCTIONS?
A. THIS IS A COPY.
ol. DOES IT APPEAR TO BE A TRUE AND CORRECT COPY TO THE BEST OF
YOUR RECOLLECTION?
A. YES. IT DOES.
MR. FORD: MAY I APPROACH THE WITNESS: YOUR HONOR?
THE COURT: YOU MAY.
BY MR. FORD:
(A 8 CALLING YOUR ATTENTION TO A VOLUME OF EXHIBITS PREVIOUSLY
MARKED AND DISCUSSED. PARTICULARLY AN ITEM MARKED DB-34.
DO YOU RECOGNIZE WHAT THAT IS?
A. YES, I DO.
Ra. AND IS THAT THE SAME DOCUMENT?
Ae YES. IT IS.
Qe AND WHEN DID YOU FIRST SEE THAT DOCUMENT. OR THE ORIGINAL
OF IT?
A. I FIRST SAW THAT DOCUMENT SOMETIME IN AUGUST OF 1930.
Q. THAT WAS ONE OF THE DOCUMENTS THAT PROFESSOR BALDUS SENT
YOU AT THAT TIME?
A. THATS CORRECT.
QR. AND YOU USED TO CODE SOME PRACTICE QUESTIONNAIRES OR
DOCUMENTS AT THE, IN BOSTON?
333
GATES - DIRECT
1 Ae RIGHT.
2 QR. DID YOU USE THAT THEREAFTER?
Be YES: I DID.
Q. AND FOR WHAT PURPOSES DID YOU USE IT THEREAFTER?
A I USED THIS FOR THE PURPOSE OF HAVING A SET OF PERMANENT
3
4
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é GUIDELINES TO. AND INSTRUCTIONS TO CODE THE QUESTIONNAIRES. ONCE
7 I WAS IN GEORGIA.
38 MR. FORD: YOUR HONOR, WE“VE GOT A FEW DOCUMENTS THAT
4 ARE DUPLICATES. 1 DON’T KNOW WHAT THE COURT’S PREFERENCE IS
10 WITH REGARD TO THE RECORD.
11 MY RECOLLECTION IS THAT DB-34 WAS ADMITTED FOR A
12 LIMITED PURPOSE DURING PROFESSOR BALDUS” TESTIMONY.
13 I DON’T KNOW IF THE COURT WANTS TWO DOCUMENTS THAT ARE
14 THE SAME IN THE RECORD. THAT MIGHT BE THE SIMPLEST BUT AT THIS
iS POINT I WOULD OFFER EG-2 OR ALTERNATIVELY DB-24 INTO THE RECORD
16 FOR THE PURPOSES DESCRIBED BY MR. GATES” TESTIMONY.
17 MS. WESTMORELAND: YOUR HONOR, I BELIEVE THAT DB-34 WAS
18 ADMITTED WITH THE LIMITATION, I BELIEVE, ASKED BY RESPONDENT
%® 19 THAT IT WAS NOT INDICATED THEY HAD NECESSARILY BEEN FOLLOWED.
20 I SEE NO POINT IN DUPLICATING THE EXHIBIT. IF THAT
21 NOTATION CAN BE CLEARED UP BY THIS WITNESS, I HAVE NO PROBLEM
22 WITH THE EXHIBIT. WE HAVE ONE COPY IN THE RECORD. I SEE NO
23 NEED TO DUPLICATE THAT PARTICULAR ITEM. AS LONG AS, AS I SAID,
24 THE WITNESS CAN CLEAR UP THE LIMITATION PREVIOUSLY REQUESTED.
23 THE COURT: I RATHER NOT HAVE THE DUPLICATION.
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GATES —- DIRECT
MR. FORD: I HAVE NO PREFERENCE, YOUR HONOR.
THE COURT: LETS USE THE SAME IDENTIFYING NUMBER AND
MAKE SURE THAT THE CLERK’S. YOU CAN LEAVE IT IN HIS BOOK, BUT
MAKE SURE THE CLERK’S COPY WHICH WILL BECOME THE RECORD OF THE
COURT SHOWS THAT NUMBER BY WHICH IT WAS ORIGINALLY IDENTIFIED.
MR. FORD: THANK YOU, YOUR HONOR.
BY MR. FORD:
9. AFTER YOU COMPLETED YOUR USE OF THESE INSTRUCTIONS AND YOUR
PRACTICE QUESTIONNAIRES IN BOSTON. WHAT DID YOU DO THEN, WITH
REGARD TO THIS JOB?
A. WELL. CATHY CHRISTIAN AND I WENT TO GEORGIA SOMETIME DURING.
THE SECOND WEEK OF SEPTEMBER, AND THERE WE MET WITH PROFESSOR
BALDUS AND BEGAN OUR TRAINING.
(m8 AND WHAT DID YOUR TRAINING CONSIST OF?
Ae THE FIRST THING THAT WE DID WAS TO REVIEW THE CASES THAT WE
HAD PRACTICED CODING WHILE WE WERE IN BOSTON AND TO DISCUSS ANY .
PROBLEMS WITH THE CODING OR ANY QUESTIONS THAT WE HAD, THAT SORT
OF THING.
I BELIEVE THAT I SENT THE QUESTIONNAIRES THAT I HAD
CODED TO PROFESSOR BALDUS BEFORE GOING TO GEORGIA. I DON'T
SPECIFICALLY RECALL THAT.
Q. WHO WERE YOU WITH IN GEORGIA?
A. CATHY CHRISTIAN, AND PROFESSOR BALDUS.
Qe AND HOW LONG DID THAT TRAINING PERIOD WITH PROFESSOR BALDUS
THERE WITH YOU IN GEORGIA LAST?
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A. IT LASTED THREE OR FOUR DAYS.
2 Q. WHAT DID YOU DO AFTER YOU HAD GOTTEN THROUGH REVIEWING THE
3 PRACTICE QUESTIONNAIRES THAT YOU HAD PREVIOUSLY DONE?
4 A. WELL, THE FIRST THING WE DID WAS TO GO TO THE ARCHIVES
S BUILDING AND THERE PROFESSOR BALDUS INTRODUCED US TO ALL THE
é PERSONNEL THAT WOULD BE ABLE TO HELP US IN OBTAINING THE CASES
% 7 THAT WE GOING TO CODE, AND HE PROVIDED US WITH A LIST OF CASES
8 TO CODE.
? AND THEN AFTER GETTING THE CASES. WE BEGAN CODING THEM.
10 AND WHAT WE WOULD DO IS WE WOULD EACH CODE A CASE. AND THEN
11 DISCUSS THE CODING OF THAT CASE WITH PROFESSOR BALDUS.
12 Qe. NOW WHEN YOU REFER TO THE ARCHIVES BUILDING, CAN YOU BE A
13 LITTLE MORE PRECISE AS TO WHAT THAT WAS?
14 A. ITS THE BUILDING WITHOUT ANY WINDOWS, ACROSS FROM THE
15 COLISEUM. IT’S THE PLACE WHERE THE SUPREME COURT APPEAL RECORDS
14 ARE KEPT.
37: . {fe SUPREME COURT OF THE STATE OF GEORGIA?
18 A. THATS RIGHT.
% 19 Ra HOW LONG DID YOU CONTINUE WORKING THERE AT THE ARCHIVES
20 BUILDING WITH PROFESSOR BALDUS, CODING THESE QUESTIONNAIRES
21 TOGETHER?
22 A. WE WORKED THERE FOR ABOUT A DAY AND A HALF.
23 Gl. AND WHAT DID YOU DO AFTER THAT?
24 A. AFTER THAT. WE WENT WITH PROFESSOR BALDUS TO THE SUPREME
25 COURT BUILDING ITSELF, WHERE HE INTRODUCED US TO THE CLERK
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THERE.
| Qe AGAIN FOR THE RECORD, THE SUPREME COURT IS THE SUPREME
COURT OF GEORGIA?
A. THATS THE SUPREME COURT OF GEORGIA. YES. AND THE PURPOSE
OF THAT WAS TO INTRODUCE US TO THE CLERK THERE SO THAT SHOULD WE
NEED ANY DOCUMENTS THAT WERE IN THE SUPREME COURT THAT WERE NOT
IN THE ARCHIVES. WE WOULD KNOW WHO TO GET THEM FROM.
QA. HOW LONG DID YOU WORK THERE WITH PROFESSOR BALDUS AT THE
GEORGIA SUPREME COURT ITSELF?
A. WE WERE ONLY THERE FOR ABOUT HALF AN HOUR.
Q. AND AFTER THAT WHAT DID YOU DQ?
A. AFTER THAT WE WENT TO THE DEPARTMENT OF PARDONS AND
PAROLES, WHERE AGAIN WE WERE INTRODUCED TO THE PERSONNEL. TAKEN
THROUGH THE FILES TO ILLUSTRATE TO US WHERE THE VARIOUS
INFORMATION OF INTEREST WOULD BE KEPT IN THE FILES, AND THEN WE
DID SOME PRACTICE CODING OF SOME CASES.
Gl. HOW LONG DID YOU DO THAT WITH PROFESSOR BALDUS THERE?
Ae. THAT WAS A DAY AND A HALF.
Q. NOW. WHEN YOU REFER TO CODING SOME QUESTIONNAIRES. WHAT
QUESTIONNAIRES WERE YOU CODING AT THAT TIME DURING THAT TRAINING
PERIOD WITH PROFESSOR BALDUS?
A. AT THE SUPREME. AT THE ARCHIVES BUILDING, WE WERE CODING
TWO QUESTIONNAIRES. WE WERE CODING THE SUPREME COURT
QUESTIONNAIRE AND WE WERE CODING THE PROCEDURAL REFORM
QUESTIONNAIRE.
33%
GATES - DIRECT
Q. CALLING YOUR ATTENTION IN THE VOLUME OF MATERIALS THAT I
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2 HAVE HANDED YOU, THE DOCUMENT MARKED EG-3.
3 DO YOU RECOGNIZE WHAT THAT IS?
4 A. IS THAT EG-3A7?
3S Q. EG~37
é A. I DONT HAVE AN EG-3.
% 7 Gl. WELL, THEN CALLING YOUR ATTENTION IN THE VOLUME OF
8 MATERIALS PREVIOUSLY UTILIZED IN PROFESSOR BALDUS” STUDY, THE
9 DOCUMENT MARKED DB-357 |
10 A. I HAVE THAT.
11 Qe DO YOU RECOGNIZE WHAT THAT IS?
12 A. YES, I DO. THAT“S A COPY OF A PROCEDURAL REFORM
13 QUESTIONNAIRE THAT CATHY CHRISTIAN AND I USED TO CODE
14 INFORMATION INTO IN 1980.
15 MR. FORD: YOUR HONOR, I BELIEVE THAT THAT DOCUMENT HAS
146 BEEN PREVIOUSLY ADMITTED WITHOUT OBJECTION...
17 BY MR. FORD:
18 Q. CALLING YOUR ATTENTION TO THE DOCUMENT IN THE MATERIALS
# 19 UTILIZED DURING PROFESSOR BALDUS” TESTIMONY TO THE ITEM MARKED
20 DB-27, DO YOU RECOGNIZE WHAT THAT IS?
21 A. YES, 1 DO.
22 Q. AND WHAT'S THAT?
23 A. THE FIRST PART OF THAT EXHIBIT IS A PRINTOUT FROM THE
<4 DEPARTMENT OF CORRECTIONS WHICH INCLUDES INFORMATION ABOUT THE
23 OFFENDER.
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AND THE SECOND PART OF THOSE MATERIALS ARE. ARE THE,
SECOND PART 1S THE QUESTIONNAIRE. THE SUPREME COURT
GUESTIONNAIRE THAT WE USED TO CODE INFORMATION INTO FROM THE
SUPREME COURT RECORDS. GEORGIA SUPREME COURT RECORDS.
RQ. SO THE SECOND PART. CAN YOU IDENTIFY BY DESCRIBING THE PAGE
WHAT THAT SECOND PART BEGINS WITH. IS THERE ANYTHING
ON THE TOP THAT IDENTIFIES IT?
Ae IT BEGINS AT PAGE 13.
Q. THOSE ARE THE TWO QUESTIONNAIRES THAT YOU WERE USING IN
THIS TRAINING SESSION WITH PROFESSOR BALDUS?
A RIGHT.
MS. WESTMORELAND: YOUR HONOR, COULD I ASK WHAT THE
EXHIBIT NUMBER WAS ON THAT AGAIN? I MISSED IT.
MR. FORD: DB-27.
MS. WESTMORELAND: THANK YOU.
MR. FORD: WHICH I BELIEVE HAS BEEN ADMITTED. YOUR
HONOR.
BY MR. FORD:
| Qa AFTER PROFESSOR BALDUS., AFTER YOU COMPLETED YOUR WORK WITH
PROFESSOR BALDUS AT THE GEORGIA DEPARTMENT OF PARDONS AND
PAROLES, WHAT HAPPENED THEN?
A. I WENT HOME FOR CHRISTMAS.
Q. I’M SORRY. BY YOUR WORK WITH PROFESSOR BALDUS, I MEAN THE
TWO-DAY TRAINING SESSION?
Re OH» I’M SORRY.
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AFTER THE TRAINING SESSION. PROFESSOR BALDUS LEFT. AND
MISS CHRISTIAN AND I BEGAN CODING CASES AT THE ARCHIVES BUILDING
THOSE CASES WERE PRE-SELECTED FOR US.
Q. AND WHAT HOURS DID YOU WORK OR WHAT PERIOD DID THAT TAKE,
THEN. WHEN YOU AND MISS CHRISTIAN WERE WORKING?
A. THAT TOOK FROM MID-SEPTEMBER TILL LATE OCTOBER.
G. AND THAT WAS THE PERIOD OF TIME YOU WERE WORKING AT THE
ARCHIVES BUILDING?
A. THATS CORRECT.
8. AND WHAT HOURS DID YOU WORK DURING THAT PERIOD?
A. GENERALLY FROM 8100 TILL 4:30.
8. AND HOW DID YOU, WHERE DID YOU PHYSICALLY WORK WITHIN THAT
BUILDING?
A. WITH REGARD TO CERTAIN DOCUMENTS. THERE‘S A SPECIAL AREA
WHERE YOU MUST VIEW THOSE DOCUMENTS AT THE ARCHIVES BUILDING,
AND THE SUPREME COURT DOCUMENTS WERE ONLY ALLOWED TO BE VIEWED
IN THAT AREA. AND THEY HAD TABLES THAT WERE LARGE ENOUGH TO
WORK ON» MAYBE THREE FEET IN DIAMETER. AND WE WERE ABLE TO WORK
AT TABLES NEXT TO ONE ANOTHER THROUGHOUT THAT PERIOD.
8. HOW DID YOU GET THE FILES FROM WHICH YOU WERE FILLING OUT
THESE QUESTIONNAIRES?
A. WE PROVIDED THE PERSONNEL THERE WITH THE OFFENDER‘S NAME
AND THE DATE OF CONVICTION, AND THEY WOULD FIND THE DOCKET
NUMBER AND THEY WOULD RETRIEVE THE CASE.
A. AND YOUR REQUEST WAS BASED ON A DECISION MADE BY YOU OR
WY
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SOMETHING YOU HAD BEEN INSTRUCTED TO DO WITH REGARD TO WHICH
CASES WERE PULLED?
A. NO» WE WERE INSTRUCTED WHICH CASES TO CODE.
G. THE RECORDS THAT WERE PROVIDED TO YOU, WERE THEY
REPRESENTED TO YOU TO BE OFFICIAL RECORDS OF THE SUPREME COURT
OF GEORGIA?
A. YES, THEY WERE.
@. BY PERSONNEL OF THE GEORGIA STATE ARCHIVES?
A. THAT’S CORRECT.
©. WHAT WAS IN THOSE FILES?
YOU CAN GENERALIZE?
A. THERE WAS A TRIAL TRANSCRIPT.
THE BRIEFS FROM THE ATTORNEY GENERAL AND THE
DEFENDANT/S APPELLATE BRIEFS.
PRIMARILY THAT.
@. WERE THERE ANY OTHER DOCUMENTS THAT YOU WERE WORKING FROM
AT THAT TIME. OTHER THAN THOSE OFFICIAL RECORDS?
A. WHEN IT WAS AVAILABLE, PROFESSOR BALDUS PROVIDED US WITH
THE YORK QUESTIONNAIRE AND THE YORK CARD.
@. WHAT DO YOU MEAN BY THE YORK QUESTIONNAIRE AND YORK CARD?
A. IT WAS REPRESENTED TO ME THAT THIS WAS A DOCUMENT THAT WAS
FILLED OUT BY DENNIS YORK WHO WAS WORKING WITH THE SUPREME COURT
OF GEORGIA. AND THEY WERE, THEY SUMMARIZED INFORMATION THAT WAS
RELEVANT TO THE CODING OF THE CASE.
Q. AND WERE THERE ANY OTHER DOCUMENTS THAT PROFESSOR BALDUS
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PROVIDED YOU THAT YOU WORKED FROM TO GET THE INFORMATION AT THAT
TIME?
A. NOT THAT I RECALL. |
Q. WERE ANY OF THESE CASES CASES IN WHICH THE GEORGIA SUPREME
COURT HAD RENDERED A DECISION ON APPEAL?
A. OH, YES. THERE WAS THE SUPREME COURT DECISION OF THE CASE
IN THE FILE.
Q. NOW, RETURNING TO DB-34, THE MEMORANDUM THAT DOCTOR BALDUS
SENT TO YOU WHEN YOU FIRST BEGAN THE JOB.
CAN YOU GENERALLY SUMMARIZE WHAT THAT MEMORANDUM
INFORMED YOU OF AT THAT TIME?
A. GENERALLY IT DESCRIBES SOME OF THE CASES THAT WE WILL BE
CODING.
IT PRIMARILY GIVES US PARTICULAR INSTRUCTIONS ON HOW TO
ENTER THE DATA INTO THE QUESTIONNAIRE.
QA. AND WERE THOSE INSTRUCTIONS FOLLOWED THROUGHOUT THIS
PROCESS OF GATHERING DATA AT THE GEORGIA STATE ARCHIVES?
A. YES, THEY WERE. PROFESSOR BALDUS, IN FACT, PROVIDED US
WITH A NOTEBOOK SIMILAR TO THIS, AND THOSE INSTRUCTIONS WERE
KEPT IN A NOTEBOOK WITH US AS WE WERE CODING ALL THE TIME. WE
EACH HAD OUR OWN COPY.
Q. CALLING YOUR ATTENTION PARTICULARLY TQ PAGE 3 OF THAT
DOCUMENT, IN THE MIDDLE. THE PROVISION THAT INDICATES. WHERE.
THE LAST SENTENCE BEFORE, LIST. NUMBERED LIST, BEGINNING
"HOWEVER. IF THERE ARE INCONSISTENCIES IN THE VARIOUS SOURCES OF
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INFORMATION. THE ORDER OF PRIORITY SHOULD BE AS FOLLOWS,"
BEGINNING WITH SUPREME COURT OPINION AND GOING DOWN ONE THROUGH
FIVE.
WAS THAT RULE FOLLOWED BY YOU THROUGHOUT?
A. YES, IT WAS.
@. DID THAT, WERE THERE, WITH REGARD TO THE RULES. HAVE YOU
HAD AN OCCASION TO REVIEW THIS MEMORANDUM IN THE LAST FEW DAYS,
PREPARATORY FOR YOUR TESTIMONY HERE?
A. YES. 1 HAVE.
Q. WERE THERE ANY RULES WITHIN THAT INSTRUCTION BOOK THAT WERE
NOT FOLLOWED THAT WERE CHANGED OR MODIFIED AT ANY POINT DURING
YOUR WORK EITHER AT THE GEORGIA STATE ARCHIVES OR ELSEWHERE,
GATHERING THIS DATA?
AR. THERE WAS ONLY ONE RULE THAT WAS. THAT WAS MODIFIED. BUT IT
WAS, STRIKE THAT.
THERE WERE SEVERAL RULES THAT WERE MODIFIED BUT THEY
WERE ALL MODIFIED TO REFLECT CHANGES IN THE DIFFERENT
QUESTIONNAIRES THAT WE WERE USING, SO THAT THESE, THESE
INSTRUCTIONS RIGHT HERE SPECIFICALLY TELL YOU HOW TO CODE
INFORMATION INTO THE SUPREME COURT QUESTIONNAIRE.
NOW WHERE THE RULES ARE MODIFIED. THEY ARE MODIFIED IN
SUCH A WAY THAT INSTRUCTS YOU HOW TO CODE THE INFORMATION INTO
THE PROCEDURAL REFORM QUESTIONNAIRE. NOT SUBSTANTIVE CHANGES.
BUT JUST HOW MANY LETTERS YOU ENTER OR THAT SORT OF THING.
Q. WITH REGARD TO THE. FOR INSTANCE BACK ON PAGE 3, THE
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HIERARCHY OF DIFFERENT SOURCES. DID THAT PROTOCOL PERSIST
THROUGH THE QUESTIONING ON THE PROCEDURAL REFORM STUDY AS WELL?
A. YES. NOTHING LIKE THAT WAS CHANGED.
G. AS I UNDERSTAND IT, YOU WERE FILLING OUT BOTH THE
PROCEDURAL REFORM QUESTIONNAIRE AND THE SUPREME COURT
QUESTIONNAIRE AT THE SAME TIME WHILE YOU WERE AT THE GEORGIA
STATE ARCHIVES, IS THAT CORRECT?
A. THATS CORRECT.
a. WERE THERE ANY OTHER RULES. PRACTICES. WITH REGARD TO
FILLING OUT, SAY, PARTICULARLY THE PROCEDURAL REFORM
QUESTIONNAIRE, THE QUESTIONNAIRE IN THE STUDY NUMBER 1 WE“VE
BEEN DISCUSSING HERE AND THAT PROFESSOR BALDUS HAS DISCUSSED.
WERE THERE ANY OTHER RULES DEVELOPED THAT ARE NOT WRITTEN ON
THIS PARTICULAR SET OF INSTRUCTIONS THAT YOU RECEIVED AT THE
QUTSET?
A. THERE ARE PROBABLY SOME THAT WERE DEVELOPED. THEY WOULD
ALL BE COMPLETELY OBVIOUS TO ME NOW. AS PROFESSOR BALDUS
DESCRIBED EARLIER TODAY, MISS CHRISTIAN AND I WOULD CALL HIM AT
FOUR 0“CLOCK EVERY AFTERNOON, ESPECIALLY. IF THAT CHANGED. IT
WOULD BE EVERY OTHER DAY OR SOMETHING LIKE THAT LATER ON. BUT AT |
THE START, WE HAD A LOT OF QUESTIONS ABOUT HOW TO CODE THE
INFORMATION INTO THESE DOCUMENTS, SO PROFESSOR BALDUS WOULD
RESOLVE ANY QUESTIONS THAT WE HAD ABOUT THE PROPER CODING. AND
THOSE RESOLUTIONS WEREN’T ALWAYS RESOLVED, ALWAYS EMBODIED IN A
WRITING.
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Q. THEY WERE ALWAYS DISCUSSED BETWEEN YOU AND PROFESSOR BALDUS
Ty
2 AND MISS CHRISTIAN?
3 A. THATS CORRECT.
4 Q. AND DID YOU HAVE ANY OCCASIONS WHERE THE DECISION WAS MADE
S THAT MIGHT RETROACTIVELY AFFECT DOCUMENTS THAT HAD ALREADY BEEN
6 FILLED OUT?
%® 7 Fe THAT HAPPENED OCCASIONALLY AT THE START.
8 a. WHAT DID YOU DO ON THOSE OCCASIONS?
9? A. ON THOSE OCCASIONS WE WERE INSTRUCTED TO GO BACK THROUGH TO
10 THE RUESTION ALREADY CODED AND TO CHECK AND SEE IF IT WAS
11 NECESSARY TO CHANGE THE CODING ON THOSE QUESTIONNAIRES. AND IF
12 IT WAS NECESSARY. THEN WE DID CHANGE THEM.
13 Re DO YOU KNOW APPROXIMATELY HOW MANY CASES YOU AND MISS
14 . | CHRISTIAN CODED AT THE GEORGIA SUPREME COURT AND GEORGIA SUPREME
15 COURT ARCHIVES? I TAKE IT THERE WAS NO SIGNIFICANT DIFFERENCE
16 EXCEPT FOR THE LOCATION IN TERMS OF THE DOCUMENTS YOU WERE
17 WORKING FROM, IS THAT RIGHT?
18 Ae THATS RIGHT.
é 19 Qe. THOSE TWO PLACES?
20 A. AND WE CODED AROUND A HUNDRED CASES.
21 Q. AND HOW LONG DID IT TAKE YOU TO CODE AN INDIVIDUAL CASE
22 DURING THAT TIME?
23 A. AT THE START, IT TOOK US, ID SAY FIVE TO SIX HOURS TO CODE
24 AN INDIVIDUAL CASE. AND AS WE GOT BETTER AND MORE FAMILIAR WITH
25 THE DESIGN OF THE QUESTIONNAIRE, I THINK WE WE REDUCED THAT TO
347
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BETWEEN THREE AND FOUR HOURS. Py
2 Gl. AFTER YOU HAD FINISHED CODING THESE HUNDRED-ODD CASES AT
3 THE GEORGIA SUPREME COURT AND THE SUPREME COURT ARCHIVES. WHAT
4 DID YOU DO THEN?
b= A. AFTER THAT. WE WENT TO THE DEPARTMENT OF PARDONS AND
é PAROLES, AND BEGAN CODING CASES INTO THE PROCEDURAL REFORM
. 7 QUESTIONNAIRE EXCLUSIVELY.
8 Q. AND WHAT DOCUMENTS DID YOU WORK FROM THERE?
9 A. FROM THERE. WE WORKED WITH THE DEPARTMENT OF PARDONS AND
10 PAROLES FILES.
11 A. CAN YOU DESCRIBE TO THE COURT WHAT THOSE FILES CONTAINED
12 AND WHAT THEY WERE LIKE?
13 A YES. THEY VARIED IN THEIR THICKNESS BUT WHAT THEY
14 SYSTEMATICALLY INCLUDED WAS A POLICE INVESTIGATIVE. A SUMMARY OF
13 THE POLICE INVESTIGATIVE REPORT BY A PAROLE OFFICER.
146 THEY INCLUDED AN F.B.I. RAF SHEET. A PERSONAL HISTORY
17 EVALUATION, AN ADMISSIONS DATA SUMMARY SMEET. AND SEVERAL OTHER
18 DOCUMENTS THAT MIGHT INCLUDE LIKE A WITNESS STATEMENT OR THE
® 19 ACTUAL POLICE REPORT.
20 THOSE ARE THE DOCUMENTS THAT ARE RELEVANT TO. TO THE
21 INFORMATION THAT WE WERE LOOKING FOR.
22 QR. AND WHEN YOU WERE TAKING THAT INFORMATION, WERE YOU PUTTING
23 THAT, WHICH QUESTIONNAIRES WERE YOU PUTTING THAT INFORMATION ON,
24 ~~ |PARDONS AND PAROLES BOARD?
23 A. INTO THE PROCEDURAL REFORM QUESTIONNAIRE.
348
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QA. ONLY. IS THAT RIGHT? po
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2 Ae YES.
3 Q. THAT”S AGAIN DB-33, IS THAT RIGHT?
4 A. YES.
3 Ge HOW, PHYSICALLY HOW DID YOU GET THE FAROLE BOARD FILES?
& A. AT THE START WE SIMPLY REQUESTED FROM THE PEOPLE WHO WORKED
& 7 IN THE FILE ROOM AT THE DEPARTMENT OF PARDONS AND PAROLES THE
3 FILE, WE REQUESTED IT BY THE OFFENDER‘S NAME, AND AS TIME WENT
9 ON, THEY TAUGHT US HOW TO FIND THE FILES OURSELVES. AND SO WE
10 WENT AND GOT THE FILES OURSELVES.
11 Q. AND AGAIN WERE THESE REPRESENTED TO YOU TO BE OFFICIAL
12 DOCUMENTS OF THE STATE OF GEORGIA?
13 A. YES. THEY WERE.
14 a. BY STAFF PERSONNEL OF THE STATE OF GEORGIA?
15 A. THATS CORRECT.
16 THE COURT: DID YOU SAY THAT THESE FILES SOMETIMES
17 CONTAINED A POLICE REPORT?
18 THE WITNESS: YES.
19 THE COURT: DO YOU HAVE A FEELING NOW WHAT PERCENTAGE
20 THAT PERTAINED TO?
21 THE WITNESS: I WOULD SAY APPROXIMATELY TWENTY-FIVE
22 PERCENT OF THE TIME.
23 WHAT WAS ALWAYS THERE WAS AN INVESTIGATION BY THE
24 PAROLE OFFICER AT THE POLICE DEPARTMENT WHERE THEY WERE TO 23 SUMMARIZE THE INFORMATION IN THE POLICE FILES.
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BY MR. FORD:
@. JUMPING AHEAD PERHAPS, JUST A SECOND. MR. GATES. BUT TO
CLARIFY THAT MATTER.
DO YOU RECALL IF ON EITHER THE PROCEDURAL REFORM
QUESTIONNAIRE OR THE LATER GUESTIONNAIRE DONE IN THE SECOND
STUDY, THE CHARGING AND SENTENCING STUDY, THERE WAS AN
OPPORTUNITY TO CODE WHETHER OR NOT THE POLICE REPORT WAS IN THE
FILES? IS THAT A QUESTION THAT WAS ASKED ON THOSE REPORTS?
THE COURT: THE GUESTION WAS WHETHER AFTER READING THE
POLICE REPORT, THE WRITER THOUGHT HE WAS GUILTY OR SOMETHING
LIKE THAT.
THE WITNESS: IN ANSWER TO YOUR QUESTION, NO.
YOU“RE CORRECT.
THE COURT: WHEN YOU CONFRONTED THE FILE THAT DID NOT
HAVE A POLICE REPORT IN IT, DID YOU CODE ON THE BASIS OF THE
PAROLE OFFICER‘S OFFICIAL VERSION?
THE WITNESS: THATS CORRECT.
THE COURT: SO YOU READ THE PAROLE OFFICER‘S OFFICIAL
VERSION, AND DETERMINED WHETHER HE WAS GUILTY OR WHETHER THE
PAROLE OFFICER THOUGHT HE WAS GUILTY OR WHAT? JUST EXACTLY WHAT
DID YOU DETERMINE?
THE WITNESS: WE WERE SUPPOSED TO, WHAT WE DID WAS READ
THE PAROLE OFFICER’S SUMMARY OF THE INFORMATION THAT WAS
CONTAINED IN THE POLICE, LOCAL POLICE DEPARTMENT FILES. AND FROM
THAT SUMMARY. WE GAVE OUR IMPRESSION OF WHETHER WE THOUGHT THERE
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WAS CLEAR EVIDENCE OF GUILT IN THE CASE.
BY MR. FORD:
Q. AGAIN THAT'S WITH REGARD TO THE SECOND STUDY, THE CHARGING
AND SENTENCING STUDY?
Be THAT’S CORRECT.
a. WE CAN DISCUSS LATER ON A LITTLE MORE IN DETAIL HOW THAT
WAS DONE. I DIDN‘T MEAN TO JUMP AHEAD THERE.
LET’S GO PERHAPS, MR. GATES. WOULD YOU TURN IN YOUR
BOOK, IN THE VOLUME OF MATERIAL I PROVIDED YOU WITH TO DOCUMENT
MARKED EG-3A?
AND DO YOU) RECOGNIZE WHAT THAT IS?
A. YES, I DO.
q. AND WHAT IS IT?
A. THATS AN EXAMPLE OF A CASE THAT WAS CODED BY ME. NOVEMBER
7, 1980, CODED FROM THE INFORMATION IN THE FILES AT THE
| DEPARTMENT OF PARDONS AND PAROLES.
Ql. AND HAVE YOU SEEN THAT DOCUMENT BEFORE?
A. YES, I SAW IT YESTERDAY, AND I SAW IT WHEN I CODED IT.
Qa. I NOTICE ON THE TOP OF THAT DOCUMENT. IT SAYS GEORGIA
PAROLE BOARD QUESTIONNAIRE, OCTOBER. 1980, FIRST REVISION, IS
THAT CORRECT?
A. THATS CORRECT.
Qe. NOW. I BELIEVE UNDER DB-3S5 IT SAYS GEORGIA PAROLE BOARD
QUESTIONNAIRE, NOVEMBER. 1980,
IS THERE ANY SIGNIFICANT DIFFERENCE BETWEEN THOSE
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DOCUMENTS?
A. NO, IN FACT. THAT’S WHY I CAME ACROSS THIS DOCUMENT WHERE
THE OFFENDER‘S NAME IS BILLY HARDY.
YESTERDAY THE QUESTION AROSE AS TD WHETHER OR NOT THERE
WAS A DIFFERENCE BETWEEN THIS FIRST REVISION, THIS OCTOBER FIRST
REVISION AND THE NOVEMBER QUESTIONNAIRE. AND I SIMPLY DIDNT
RECALL. SO I LOOKED THROUGH THE FIRST BOX OF FILES THAT I FOUND
ON THE FLOOR AND TOOK OUT THE FIRST CASE WHERE I FOUND A FIRST
REVISION. AND THAT WAS THIS CASE. AND I COMPARED THEM. AND
THERE ARE NO DIFFERENCES BETWEEN THE TWO, EXCEPT IN HOW MANY
QUESTIONS ARE ON A PAGE. THINGS LIKE THAT.
THE COURT: EXCEPT WHAT?
THE WITNESS: THE NUMBER, THE FORMAT IS CHANGED. You
CAN SEE ON THE FIRST PAGE OF THE OCTOBER FIRST REVISION THERE'S
ONLY SIX QUESTIONS ON THAT PAGE AND ON THE OTHER ONE, THERES
NINE QUESTIONS. IT WAS PROBABLY TRYING TO COLLAPSE AND USE
FEWER PAGES.
BUT I CHECKED EVERY SINGLE QUESTION AND EACH QUESTION
IS SUBSTANTIVELY THE SAME.
BY MR. FORD:
QR. SO IN OTHER WORDS, THE SECOND —-
THE COURT: WAIT JUST A SECOND. THE GEORGIA PARCLE
BOARD QUESTIONNAIRE, WHICH STUDY DOES THAT FEED INTO?
MR. FORD: STUDY NUMBER 1, YOUR HONOR.
THE COURT: IS THIS WHAT HE REFERRED TO AS THE --
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THE WITNESS: PROCEDURAL REFORM.
THE COURT: -- QUESTIONNAIRE?
THE WITNESS: YEAH.
THE COURT: BUT NOT THE INITIAL SUPREME COURT
QUESTIONNAIRE, BUT THE SUBSEQUENT --
THE WITNESS: THAT’S CORRECT.
THE COURT: ALL RIGHT.
BY MR. FORD:
Q. JUST FOR CLARIFICATION, PERHAPS. CAN WE REFER NOW TO STUDY
NUMBER ONE, PERHAPS LATER, WE CAN GET TO THE CHARGING AND
SENTENCING STUDY, STUDY NUMBER TWO?
A. OKAY.
Ge AS I UNDERSTAND IT, YOU NEVER FILLED OUT ANY GEORGIA
SUPREME COURT QUESTIONNAIRES, WHICH IS TO SAY, NUMBER ONE-HALF
OR SOMETHING, BUT THAT YOU DID NOT ALSO FILL OUT A STUDY NUMBER
ONE QUESTIONNAIRE. IS THAT RIGHT?
A. THATS CORRECT.
a. AND WITH REGARD TO THE DIFFERENCES BETWEEN THIS NOVEMBER
AND OCTOBER VERSION WHERE YOU SAY THERE‘S NINE QUESTIONS ON THE
FIRST PAGE, ALL NINE OF THOSE QUESTIONS ARE ALSO IN THE NEXT
QUESTIONNAIRE, IT’S JUST ON A DIFFERENT PAGE. IS THAT RIGHT?
A. THATS CORRECT.
Qe. SO, BUT YOU HAD PULLED THIS TO CHECK THAT FACT?
A. THAT WAS THE ONLY REASON I PULLED IT.
Q. BUT THIS HAPPENS TO BE ONE YOU DID FILL OUT YOURSELF, IS
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THAT RIGHT?
Ae YES. SIR.
QR. DOES THAT APPEAR TO BE A TRUE AND CORRECT COPY OF THE ONE
YOU FILLED OUT?
A. YES, IT DOES.
MR. FORD: I“D OFFER EG-3A, YOUR HONOR.
MS. WESTMORELAND: YOUR HONOR, I WOULD OBJECT ON THE
BASIS THAT IT SEEMS THAT IF THERE ARE NO DIFFERENCES BETWEEN THE
TWO QUESTIONNAIRES. EG-3A, WHICH WOULD MERELY BE CUMULATIVE OF
DB-3S.
IF THE QUESTIONNAIRES ARE THE SAME, I THINK DB-335
SERVES THE PURPOSE OF GIVING AN EXAMPLE OF THE QUESTIONNAIRE
USED IN THE PROCEDUREAL REFORM STUDY.
MR. FORD: VERY SIGNIFICANT DIFFERENCE. YOUR HONOR.
THIS ONE HAS WRITING ON IT BY GATES. WHICH IS THE PURPOSE OF ITS
OFFER.
THE COURT: WHAT IS IT OFFERED TO PROVE?
MR. FORD: WELL, I WOULD LIKE TO ASK MR. GATES A SERIES
OF QUESTIONS WITH REGARD TO HOW HE FILLED IT OUT AS JUST A RANDOM
CHOSEN EXAMPLE.
THE COURT: FOR THE PURPOSE OF ILLUSTRATING THAT
TESTIMONY. I WILL MORE THAN LIKELY ADMIT IT.
MR. FORD: THANK YOU. YOUR HONOR. PERHAPS I-LL MOVE,
WELL, I THINK IT HAS TO BE ADMITTTED BEFORE I ASK SUBSTANTIVELY
ABOUT IT, DOESN’T IT, YOUR HONOR?
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THE COURT: I WILL ADMIT IT FOR THOSE PURPOSES.
MR. FORD: THANK YOU, YOUR HONOR.
BY MR. FORD:
a. MR. GATES. WOULD YOU JUST START ON THE FIRST PAGE OF THIS
EG-3A AND JUST VERY BRIEFLY GO DOWN WHAT YOUR CODINGS ON THAT
REPRESENT?
A. YES. IN THE TOP RIGHTHAND CORNER THERES SOMETHING CALLED
CASE NUMBER, WHICH IS IDENTICAL TO WHAT’S CALLED VARIABLE NUMBER
1. AND THAT 77 SECTION, THAT WAS THE NUMBER THAT WAS PROVIDED
US BY PROFESSOR BALDUS.
THE NEXT VARIABLE 1S DATE OF OFFENSE. AND THAT’S THE
DATE OF THE OFFENSE. AND THAT WAS INFORMATION THAT
WE TOOK FROM THE SUMMARY OF THE POLICE FILE.
THE NEXT IS THE DEFENDANTS PLEA. IN HERE IT’S CODED
NOT GUILTY, AND THATS ALSO INFORMATION THAT WE TOOK FROM THE
DEPARTMENT OF PARDONS AND PAROLES FILES.
LET ME JUST QUALIFY THIS. ALL OF THIS INFORMATION IS
TAKEN FROM THE DEPARTMENT OF PARDONS AND PAROLES FILES, SO I
DON’T REALLY HAVE TO SAY THAT EVERYTIME.
THE NEXT ITEM IS THE DATE OF THE TRIAL ON GUILT.
THE NEXT ITEM IS THE SENTENCE THAT THE OFFENDER GOT.
THE NEXT ITEM IS THE STATUS OF THE DEFENSE COUNSEL.
4. HOW WOULD YOU DETERMINE THAT LAST ONE, THE STATUS OF
DEFENSE COUNSEL? WHAT KIND OF DOCUMENT WOULD THAT BE REFLECTED
ON IN THE FILE?
GATES - DIRECT
Ae OCCASIONALLY,» BUT NOT ALWAYS, ON I BELIEVE IT WAS THE
Ty
ADMISSIONS DATA SHEET, BUT IT COULD HAVE BEEN ONE OF THE OTHER
DOCUMENTS. BUT THAT INFORMATION WAS JUST SUPPLIED, JUST PRINTED
RIGHT OUT THERE FOR YOU. BUT IT WASN“T REGULARLY FOUND. THAT
WAS INFORMATION THAT PROFESSOR BALDUS GOT BY WRITING LETTERS TO
THE DEFENSE ATTORNEYS.
@. JUST ON THAT QUESTION, HOW MANY OF THESE DID YOU FILL OUT
YOURSELF?
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AT LEAST, WAS OBTAINED BY PROFESSOR BALDUS LATER, IS THAT RIGHT?
12 Ae THAT’S CORRECT. |
13 Qe. IS IT CONCEIVABLE THAT ANY OF THESE ENTRIES MAY HAVE BEEN
14 CHANGED OR PUT IN BY HIM AT THAT TIME?
13 A. YES, 1T 1S.
16 Q. THERE MAY BE AN OCCASIONAL ONE LIKE THAT. AS FAR AS YOU CAN
17 TELL, OR THERE“S NO WAY TO REALLY TELL, I GUESS, EXCEPT BY
18 DIFFERENCES IN HANDWRITING, IS THAT RIGHT?
19 A. THERES ONE OTHER WAY OF TELLING. WE TRIED TO EMBODY ALL
THE RELEVANT INFORMATION ABOUT THE CASE IN THE SUMMARY AT THE
21 END, SO THAT IF, IF FOR EXAMPLE AT THE START WE DIDN‘T RECORD
22 THE RACE OF THE DEFENDANT OR THE VICTIM OR SOMETHING LIKE THAT
23 AND THEN IT WAS CODED IN LATER ON, THAT WAS PROBABLY CODED IN BY
24 PROFESSOR BALDUS.
25 Go. OKAY, NOW, ON PAGE 2 OF THE DOCUMENT, SOME INFORMATION
356
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WHICH INDICATES. HAS TO DO WITH PROSECUTION’S OR THE JUDGE'S
ACTIONS WITH REGARD TO THE PENALTY AND THE PENALTY TRIAL AND THE
APPEAL: IS THAT RIGHT?
A. YES. THIS IS A PERFECT ILLUSTRATION OF THAT WHERE THAT
INFORMATION WAS SELDOM FOUND IN THE DEPARTMENT OF PARDONS AND
PAROLES FILES, AND WE WOULD HAVE LEFT ALL THOSE QUESTIONS BLANK
AND THE NUMBERS THERE WOULD REFLECT ENTRIES BY SOMEONE ELSE
LATER ON.
QA. NUMBER 12. DATE OF SUPREME COURT DECISION. NOT A FAMILIAR
DATE, 00009. WHAT DOES THAT MEAN?
A. THAT CODE INDICATES THERE WAS NO APPEAL IN THIS CASE.
WHAT -—
Ql. NOW. I“M SORRY, WERE YOU GOING TO SAY SOMETHING ELSE?
A. I WAS JUST GOING TO SAY WHEN MISS CHRISTIAN AND I STARTED
CODING THESE CASES, IT WAS OUR UNDERSTANDING THAT THE DEATH
PENALTY CASES HAD ALREADY BEEN CODED AND SO THAT IF PROFESSOR
BALDUUS PROVIDED US WITH A SUPREME COURT DECISION. THEN WE WOULD
KNOW WHETHER OR NOT THERE WAS AN APPEAL. AND SO THE REASON FOR
THAT ENTRY. IF WE DIDN’T HAVE A SUPREME COURT OPINION IN FRONT
OF US IN THE MATERIALS THAT PROFESSOR BALDUS HAD PROVIDED US
WITH, THEN THAT WAS THE APPROPRIATE CODE.
a. PAGE GA. THATS A LITTLE DIFFERENT. WHAT IS THAT? WHAT
DID YOU INCLUDE THERE, JUST IN GENERAL?
A. IN GENERAL, THAT’S JUST INFORMATION ABOUT THE. WHO
PROSECUTED THE CASE, WHO DEFENDED THE CASE ON THE INDICTMENT
337
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NUMBER, AND WHAT COUNTY IT WAS IN. PY
2 THE COURT: PAGE 37
3 THE WITNESS: PAGE 3A.
4 MR. FORD: 3A, YOUR HONOR. IT COMES BEFORE 3 IN MY
5S COPY» ANYWAY.
6 THE COURT: MR. FORD, --
a 7 MR. FORD: YES, SIR.
8 THE COURT: =-- IF 1 REMEMBER CORRECTLY, WE HAVE GONE
ks OVER GENERALLY WHAT THIS CONTAINS, AND, AM I RIGHT ABOUT THAT?
10 MR. FORD: 1 BELIEVE PROFESSOR BALDUS HAS GONE OVER THE
11 GENERAL ASPECTS.
12 FRANKLY, WHAT I“M TRYING TO DO IS MORE SPECIFIC. AND
13 ALSO TO GIVE YOUR HONOR THE OPPORTUNITY TO ASK ANY GIUESTIONS,
14 TRY TO ASK ANY OBVIOUS QUESTIONS MYSELF, WHICH HAVE TO DO WITH
i5 THE INTERPRETATION AND EXECUTION OF THESE THINGS.
16 THE COURT: WHY DON’T YOU GO TO THOSE THAT SEEM TO BE
17 MORE JUDGMENTAL. OR WHERE YOU HAVE SOME OTHER PROBLEM?
13 MR. FORD: THANK YOU, YOUR HONGCR.
» 1% BY MR. FORD: :
20 Q. MOVING TO PAGE 3, FOLLOWS 3A AND -B, NUMBER OF PRIOR
23 ARRESTS, LINE 14, WHERE WOULD THAT INFORMATION BE CONTAINED IN
22 THIS PAROLE BOARD FILE?
23 A. THAT INFORMATION WOULD BE TAKEN FROM THE F.B.I. RAP SHEET.
24 IT WOULD BE TAKEN FROM THE, WHAT I CALL THE POLICE
25 INVESTIGATIVE REPORT, WHICH IS THE SUMMARY OF THE POLICE FILES
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THAT THE PAROLE OFFICER WROTE.
QA. WOULD BOTH OF THOSE SOURCES BE UTILIZED BY YOU IF THEY WERE
AVAILABLE OR WOULD ONE OF THEM BE SUFFICIENT?
A. OH NO, WE ALWAYS CHECKED ALL THE SOURCES OF INFORMATION
ABOUT ARRESTS IN THE FILE. THAT INFORMATION WAS IN THE F.B.I.
RAP SHEET AND THE PAROLE OFFICER WOULD ALWAYS DO A SEARCH OF THE
OFFENDER’S CRIMINAL HISTORY FROM THE LOCAL POLICE RECORDS.
AND IN ADDITION TO THAT, THE PERSONAL HISTORY
EVALUATION WOULD INCLUDE THE OFFENDER‘S ACCOUNT OF WHAT HIS OWN
CRIMINAL RECORD WAS. )
AND YOU CAN SEE ON PAGE 3 THAT WE HAVE SEPARATED THOSE
SOURCES OF INFORMATION ON THE LEFT; WE WOULD BE CODING IN THE
INFORMATION FROM THE F.B.I. RAP SHEETS AND FROM THE POLICE
INVESTIGATIVE REPORTS.
AND ON THE RIGHTHAND SIDE. IF THE INMATE HAD REPORTED
ANYTHING IN ADDITION TO THAT, WE WOULD CODE IT THERE, PRIMARILY
BECAUSE OF A CONCERN FOR THE RELIABILITY OF SOMEONE
SELF-REPORTING THEIR OWN CRIMINAL HISTORY.
THE COURT: LET ME ASK YOU A QUESTION.
IF I UNDERSTOOD DOCTOR BALDUS“ TESTIMONY, HE SAID A |
LITTLE COLUMN HE HAD ON THE SUPREME COURT QUESTIONNAIRE ASKING WHO
KNEW THIS WAS DISPENSED WITH.
WAS THAT DISPENSED WITH BEFORE YOU STARTED DOING THIS
SORT OF WORK?
THE WITNESS: THAT'S CORRECT.
lh rt ptt Start, Jett tnt, etait, Sint. peste. rma reid eit penne See eben . Ponta. eit. | f———
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GATES - DIRECT
THE COURT: $0 YOU HAVE NO INFORMATION ABOUT WHO KNEW
ry
2 WHAT ABOUT THE PRIOR ARREST OR CONVICTION RECORD OF THE
3 DEFENDANT AT WHAT STAGE OF THE PROCEEDING. IS THAT CORRECT OR
4 INCORRECT?
S THE WITNESS: THAT“S CORRECT.
3 BY MR. FORD:
x 7 Q. WITH REGARD TO WHAT YOU HAVE DESCRIBED AS F.B.I. RAF
8 SHEETS. HAD YOU EVER SEEN. HAVE YOU SEEN ONE SINCE?
9 A. YES, 1 HAVE.
10 Qe. STANDARD RAP SHEET, UNITED STATES DEPARTMENT OF JUSTICE,
11 FEDERAL BUREAU OF INVESTIGATION, COMPUTER PRINTOUT, THAT SORT OF
12 THING. SEVERAL DIFFERENT COLUMNS?
13 A. THATS CORRECT.
14 @. DID YOU HAVE ANY TROUBLE SOMETIMES READING THOSE AND
13 FIGURING OUT HOW MANY ENTRIES OR WHETHER THERE WERE ENTRIES THAT
16 WERE DUPLICATIVE?
17 A. THIS WAS VERY DIFFICULT. ESPECIALLY WHERE THE DEFENDANT HAD
18 AN EXTENSIVE CRIMINAL RECORD. WHEN THERE“S -~ LET ME JUST SAY
19 IT TAKES AN ENORMOUS AMOUNT OF EXPERIENCE TO INTERPRET THESE
20 THINGS.
21 WHEN AN OFFENDER IS TRANSFERRED FROM ONE JAIL TO
22 ANOTHER JAIL, THERE WILL BE ANOTHER ENTRY IN THE F.B.I. REPORT,
23 AND IT’S VERY CONFUSING. YOU CANT TELL IF IT“S A NEW CRIME OR
24 IF A CHARGE HAS BEEN REDUCED OR SOMETHING LIKE THAT THERE’S A
23 DIFFERENT ENTRY.
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BUT WE WERE FORTUNATE BECAUSE WE WERE WORKING IN AN
AREA SURROUNDED BY PROFESSIONALS. AND WE WERE ABLE TQ CONSULT AT
ANY MOMENT WITH THE MEMBERS OF THE DEPARTMENT OF PARDONS AND
PAROLES ON HOW TO INTERPRET THESE DOCUMENTS.
Qa AND DID YOU DO THAT?
Aa. WE ALWAYS DID IT.
@. AS A GENERAL MATTER, DID YOU TAKE DOCUMENTS IN WITH YOU?
Ae OH, IF THERE WAS EVER ANY AMBIGUITY. IF IT JUST WASN‘T
CLEAR, THEN WE WOULD TAKE IT TO THEM TO SEE IF THEY COULD RESOLVE
IF THEY COULDN’T RESOLVE IT, THEN WE WOULD ENTER THE INFORMATION
WE WERE SURE OF ON THE QUESTIONNAIRE, AND CODE SOMETHING IN THE
AMBIGUITY SECTION.
Re. THANK YOU. NOW, WITH REGARD TO. WILL YOU MOVE TO PAGE 47
A. UH HUH.
Qe. CHARACTERISTICS OF THE VICTIM. I NOTICE ON PAGE 20 IT
INDICATES THERE A "1", INDICATES THE VICTIM IN THIS CASE WHITE,
IS THAT RIGHT?
A. LOOKS LIKE QUESTION 20.
Q. QUESTION 20, I“M SORRY. PAGE 4, QUESTION 20. PERHAPS WE
SHOULD GET OUR TERMINOLOGY STRAIGHT.
WITH REGARD TO, THERE‘S, ARE YOU ON FAGE 47?
A. UH HUH.
Qe. QUESTION NUMBER 20, RACE? NOW OVER ON THE RIGHT-HAND
COLUMN THERE“S A NUMBER "44" UNDER A LITTLE LINE. DO YOU HAVE A
TERM FOR THAT. THAT SPACE THERE, IS THAT A DIFFERENT, JUST FOR
IT.
3461
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OUR NUMBERING’S SAKE. --
A. I’M SORRY. YOU‘RE REFERRING TO. TO QUESTION NUMBER 20, THE
SMALL NUMBER "66"?
QR. YEAH, WHAT IS THAT CALLED?
A. THAT“S CALLED FOIL NUMBER.
a. FOIL NUMBER 6&6 IS QUESTION NUMBER 20 ON RACE?
A. THATS RIGHT.
a. THE FOIL SAYS 1 WHITE. LOOKING BACK AT 3B, NAME OF THE
INDIVIDUAL, AND THE DATE OF DEATHS IF RACE, ENTER ONLY IF RACE
IS UNKNOWN.
EXPLAIN THE APPARENT INCONSISTENCY THERE.
A YES. I CAN. IF YOU LOOK BACK TO THE SUMMARY, --
THE COURT: WHAT ARE YOU TALKING ABOUT, 3B? PAGE 3B.
MR. FORD: PAGE 3B.
THE WITNESS: PAGE 3B.
MR. FORD: I“VE GOT A LOT OF NUMBERS HERE, YOUR HONOR.
IM SORRY, I“LL TRY TO KEEP THEM STRAIGHTER.
BY MR. FORD:
a. INDICATES THE NAME OF THE INDIVIDUAL IS TO BE ENTERED ONLY
IF THE RACE IS UNKNOWN. AND UNDERNEATH THAT. ALSO ON PAGE 3B.
QUESTION 2A. OVER ON THE FAR RIGHT. THERES A ZERO PLACED BY
"UNKNOWN.
IS THERE ANY INCONSISTENCY BETWEEN THAT AND THE
INFORMATION ON PAGE 4, WITH REGARD TO RACE?
Fe THERE“S A DIFFERENCE. BUT IT“S NOT AN INCONSISTENCY.
A — oA AAAI Spl
362
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AT THE TIME THAT I CODED THIS CASE. I HAD NO
Ts
> | INFORMATION ABOUT THE RACE OF THE VICTIM. AND SO I FILLED OUT
3 | PAGE 3B.
4 SUBSEQUENT TO THAT. I ASSUME PROFFESSOR BALDUS FROM
5 | SOME OTHER SOURCE FOUND OUT WHAT THE RACE OF THE VICTIM WAS. AND
4 | ENTERED OR HAD SOMEONE ENTER THE RACE OF THE VICTIM INTO THE
@ 7 | QUESTIONNAIRE THERE.
3 AND IF YOU LOOK BACK TO PAGE 15 OF THE SUMMARY, ——
9 |@. PAGE 15 OF THIS SAME DOCUMENT?
10 |A. THAT“S RIGHT.
11 |@. NARRATIVE SUMMARY OF THE CASE AND A HANDWRITTEN
12 | DESCRIPTION?
13 |A. YEAH. IF YOU LOOK AT THE SECOND LINE OF THAT. IT LOOKS AS
14 | THOUGH SOMEONE HAS WRITTEN IN AT THE END OF THE SECOND LINE,
15 | "WHITE." |
16 Qe DOES THAT APPEAR TO HAVE BEEN ADDED LATER? \
17 A. YES, IT DOES.
13 Q. PRESUMABLY FROM LATER OBTAINED INFORMATION, THEN.
. 19 NOW THIS SUMMARY SHEET. LET“S STAY THERE A SECOND, IF 20 YOU WOULD.
21 HAVE YOU HAD A CHANCE TO REVIEW THIS SUMMARY?
<2 Ad YES. I HAVE.
23 Qe. CAN YOU VERY GENERALLY DESCRIBE WHAT THIS CASE IS ABOUT?
24 A. I WOULD LIKE TO REVIEW IT AGAIN, THEN. OKAY.
23 Q. PERHAPS WE CAN ALL TAKE A MINUTE TO READ IT OVER, SINCE IT
363
GATES - DIRECT
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MAY HELP IN SUBSEQUENT GRUESTIONS.
2 PERHAPS, I THINK THE COURT’S HAD A CHANCE TO READ IT
3 OVER. LET ME ASK, IS THIS YOUR HAMDWRITING? DID YOU WRITE THIS
4 SUMMARY?
3S A. YES. I DID. :
é Q. THE BOTTOM LINE LOOKS A LITTLE DIFFERENT. DOES THAT APPEAR
% 7 TO BE YOUR HANDWRITING, OR COULD THAT HAVE BEEN ADDED LATER. THE
3 VERY BOTTOM OF THE PAGE. ANOTHER CO-PERPETRATOR?
? A. NO, THATS MY HANDWRITING.
10 Q. THATS YOUR HANDWRITING.
11 SO EVERYTHING OTHER THAN THIS ONE ENTRY OF "WHITE"
12 APPEARS TO BE WHAT YOU WROTE IN HERE?
13 Re UH HUH.
14 MR. FORD: I DON’T KNOW IF THE COURT NEEDS ANY
1S | ADDITIONAL SUMMARY AT THIS POINT.
16 |BY MR. FORD:
17 |@. NOW, WITH REGARD THEN. GOING BACK TO PAGE 4, AFTER THE RACE
18 |OF THE VICTIM, AGE OF THE VICTIM, IS THAT SOMETHING YOU
J; 19 | APPARENTLY HAD AT THAT TIME?
20 |{A. VES, IT 18,
21 |@. SO THAT'S ENTERED IN THE ACTUAL NUMBER, 667
22 |A. THAT’S CORRECT.
23 |@. THEN ON QUESTION 22. RELATIONSHIP OF VICTIM TO DEFENDANT,
24 |WHAT DO THE FOILS OVER ON THE RIGHTHAND SIDE THERE REFLECT?
23 A. THEY REFLECT THAT THE RELATIONSHIP BETWEEN THE DEFENDANT
-
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AND THE VICTIM WAS A STRANGER RELATIONSHIP.
a. HERE YOU‘RE GIVEN BASICALLY 24 ALTERNATIVES, POSSIBILITY OF
UNKNOWN, IS THAT RIGHT?
A. THATS CORRECT.
Q. THEN ON LINE B OF THE FOILS, DIRECTLY BELOW THE ENTRY THAT
INDICATES IT’S A STRANGER. IS THAT 097?
A. THAT INDICATES THAT THERE WAS ONLY ONE OF THE
POSSIBILITIES, THERE‘S ONLY ONE POSSIBLE ANSWER FROM THE FACTS
OF THE CASE. iy
THE REASON THERE’S TWO FOILS, SOMETIMES YOU‘LL HAVE A
SITUATION WHERE THE RELATIONSHIP IS MORE COMPLEX THAN ANY ONE OF
THESE THINGS DESCRIBES. SO YOU MIGHT HAVE FOR EXAMPLE A CODING
OF 20, AND; AND 2, WHERE THEY ARE GANG MEMBERS. AND RELATED IN A
FASHION.
THE COURT: YOUR SUMMARY DOES NOT INDICATE TO ME -— I
MAY HAVE MISSED IT -- WHAT THE RELATIONSHIP IS. FROM THE
CIRCUMSTANCES OF THE OFFENSE. AND THE FACT THAT IT OCCURRED IN A
SMALL RURAL COUNTY, I THINK I MIGHT HAVE ASSUMED THAT IT WASN‘T
A STRANGER.
DO YOU KNOW NOW WHY YOU CLASSIFIED THE RELATIONSHIP AS
BEING THAT OF A STRANGER?
THE WITNESS: I CANT RECALL. I WISH THAT THE
AMBIGUITY SHEET WAS ACCOMPANYING THIS QUESTIONNAIRE. THERE’S, 1
THINK YOU MAY RECALL THAT PROFESSOR BALDUS DECIDED. DESCRIBED
THERE WAS A SHEET THAT COMES RIGHT BEFORE THIS WHERE YOU ARE TO
GATES - DIRECT
PUT ANY AMBIGUITIES IN THE FILE, AND WHAT I WOULD EXFECT IN A
-
2 SITUATION LIKE THAT, IF, IF THERE WERE SOME SORT OF SUGGESTED
3 RELATIONSHIP TO ME I WOULD HAVE CODED IT THERE, AND EXPLAINED
4 WHY I CODED IT THAT WAY IN THE AMBIGUITIES.
S THE COURT: I KNOW THAT EARLIER WE TESTIFIED THAT THE
é& FIRST 243 WERE ACTUALLY CODED BASED ON THE EXTRACTS.
a” 7 YOU WROTE THE SUMMARY FIRST. IF I UNDERSTAND YOUR
8 METHODOLOGY. THEN DID YOU CODE BASED ON LOOKING AT THE SUMMARY
: J OR DID YOU CODE BASED ON LOOKING AT THE DOCUMENTS THAT YOU HAD
10 FROM THE PAROLE BOARD OR WHOEVER?
THE WITNESS: ACTUALLY, THE WAY THAT PROFESSOR BALDUS pb
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12 DESCRIBED THAT WAS REALLY AS A GENERALLY MATTER.
13 WHAT, WHAT I OFTEN DID, BECAUSE THE CRIMINAL HISTORY OF
14 THE OFFENDER WAS OFTEN SO COMPLEX AND BECAUSE THERE WERE SOME
13 REAL YES-NO ANSWERS ABOUT HIM IN THE EARLIER PARTS OF THE FAROLE
16 BOARD FILES, LIKE HIS AGE AND HIS RACE AND THAT SORT OF THING, I
17 WOULD GO AHEAD AND FIGURE OUT HIS CRIMINAL HISTORY AND ENTER
18 THOSE INITIAL VARIABLES RIGHT AT THE START.
19 THEN I WOULD PROCEED TO READ THE WHOLE FILE. AND
20 ENCAPSULATE THAT READING INTO THE SUMMARY.
21 AND THEN AS SOON AS I WAS DONE READING THE SUMMARY JUST
22 CODE THE INFORMATION INTO THE SPECIFIC QUESTIONS.
23 BUT I WOULD NOT CODE THE INFORMATION FROM THE SUMMARY
24 INTO THE. INTO THE FILE. THE SUMMARY JUST REPRESENTED THE WAY I
235 DESCRIBED THE INFORMATION THAT I CAME ACROSS IN THE FILE.
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366
GATES —~ DIRECT
THE COURT: AT A MINIMUM, YOU HAD THE SOURCE DOCUMENT
LITERALLY AT YOUR FINGERTIPS WHEN YOU DID THE CODING.
THE WITNESS: THATS CORRECT.
THE COURT: AND YOU WERE NOT RELYING SOLELY ON THE
SUMMARY AT THE POINT YOU DID THE CODING.
THE WITNESS: OH, NO.
BY MR. FORD:
Qe WAS THE SUMMARY INTENDED TO INCLUDE EACH AND EVERY VARIABLE
THAT WAS IN THE QUESTIONNAIRE ITSELF, OR WAS IT MORE OF A
GENERAL DESCRIPTION OF THE CIRCUMSTANCES?
Ad IT WAS INTENDED TO INCLUDE EACH AND EVERY VARIABLE AS BEST
YOU COULD, BUT WHAT IT WAS REALLY INTENDED FOR WAS TO HIGHLIGHT
PARTS OF THE, PARTS OF THE CRIME THAT WEREN‘T ADEQUATELY CODED
BY THE QUESTIONNAIRE.
Q. OR SIMPLY COULDN’T BE CODED?
A. COULDNT BE CODED.
Q. TURNING TO PAGE 5S, STATUS OF THE VICTIM. 046. I TAKE IT
THERE WAS SOME INDICATION THIS INDIVIDUAL WAS A RETIRED PERSON?
A. YES, SIR.
Ql. NOW WOULD YOU JUST HAVE ASSUMED THAT FROM THE FACT THAT
HE“S && YEARS OLD?
A. NO.
Q. THAT WOULD HAVE TO BE STATED CLEARLY OR HOW WOULD YOU
DETERMINE THAT. THEN?
Aa I WOULD DETERMINE THAT FROM A READING OF THE FILE.
miei teen + tt. ein ett Arbeit —.. S—— tre. Simbad ere tah, ——— i A. Wr A
347
GATES - DIRECT
1 Q. WOULD YOU. WELL. DID YOU HAVE A RULE ABOUT MAKING
2 INFERENCES LIKE THAT?
A. NO. NO, THERE WAS NO RULE ABOUT MAKING AN INFERENCE ON
WHETHER OR NOT SOMEONE WAS RETIRED BECAUSE OF THEIR AGE OR
SOMETHING LIKE THAT.
3
4
5
6 @. WHAT WAS YOUR RULE REGARDING DRAWING INFERENCES OF THAT
7 TYPE? J
a A. OUR RULE WITH REGARD TO DRAWING INFERENCES IN THE
9 PROCEDURAL REFORM STUDY WHICH IS, WHICH RULE IS DIFFERENT FROM
10 THE RULE THAT WE USED IN THE CHARGING AND SENTENCING STUDY, WAS
11 TO DRAW REASONABLE INFERENCES, BASED ON OUR READING OF THE FILE.
12 THE COURT! IN WHICH CASE DID YOU DRAW INFERENCES. IN
13 WHICH STUDY?
14 THE WITNESS: IN THE PROCEDURAL AND REFORM STUDY, STUDY
15 $B |
16 BY MR. FORD:
17 Q. BUT. &6 WOULDN’T BE ENOUGH TO MEET WHAT YOU HELD AS THE
18 STANDARD OF REASONABLENESS IN TERMS OF DRAWING A POSITIVE ON
19 "RETIRED?"
20 A. NO. I MEAN I COULD SPECULATE, I MEAN, IT’S BEEN THREE
21 YEARS SINCE I DID THIS FILE. BUT MY MEMORY OF IT OR MY SENSE OF |
22 IT WAS SOMEONE COMING THROUGH TOWN AND FLASHING A LOT OF MONEY |
23 AND THESE GUYS TRIED TO ENTICE THIS GUY INTO A POKER GAME OR
24 SOMETHING LIKE THAT. I MEAN THAT‘S AT LEAST CONSISTENT WITH THE
235 CODING, BUT I DON’T REALLY RECALL.
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368
GATES - DIRECT
Gl. BUT WITH REGARD TO. JUST ON THE QUESTION OF, YOU KNOW. HOW
MUCH COMMON SENSE 1S COMMON SENSE, IS AN IMPORTANT QUESTION
HERE, HOW MUCH IS A REASONABLE INFERENCE. YOUR SENSE IS 66 IS
NOT ENOUGH FOR "RETIRED?"
A. RIGHT.
A. IT WOULD HAVE TO BE SOMETHING MORE EXPLICIT THAN THAT?
A. YES.
Q. 24, DOWN ON THE BOTTOM -—-—
A. EXCUSE ME. LET ME SAY ONE MORE THING.
WHEN THINGS LIKE THIS CAME UP. KATHY AND I WERE
CONTINUALLY DISCUSSING THESE CASES WITH ONE ANOTHER. SO IF
SOMETHING CAME UP ABOUT WHAT WAS REASONABLE. AND IT REALLY
SEEMED TO CREATE A QUESTION, WE WOULD SAVE THAT FOR THAT NIGHT,
AND ASK DAVE, AND DAVE WOULD ULTIMATELY DETERMINE THE BORDERLINE
CASES OF WHAT WAS REASONABLE AND WHAT WASN‘T REASONABLE.
Q. DOWN ON THE BOTTOM OF PAGE FIVE, SPECIAL AGGRAVATING AND
MITITIGATING CIRCUMSTANCES, --
A. UH HUH.
a. 04, DEFENSELESS BY VIRTUE OF ADVANCED AGE. WOULD THE AGE
BE ENOUGH FOR THAT?
A. YES, THAT HAS A SPECIFIC RULE ATTACHED TO IT. THAT IF THE
VICTIM WAS OVER 45 YEARS OLD, WE WOULD CODE THAT FOIL.
THE COURT: YOU WOULD DO WHAT?
THE WITNESS: WE WOULD ENTER THE POSSIBILITY NUMBER a,
THAT. DEFENSELESS BY VIRTUE OF ADVANCED AGE.
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BY MR. FORD:
Q. THAT WAS A HARD AND FAST RULE?
A. HARD AND FAST RULE.
Q. AND THAT WAS THROUGHOUT?
A. THROUGHOUT THE PROCEDURAL REFORM STUDY.
Q. THE PROCEDURAL REFORM STUDY.
TURNING TO PAGE 4, WHERE THE MURDER OCCURRED. CODED
14, COUNTY ROAD, RURAL AREA.
FROM THE POLICE REPORTS OR PAROLE BOARD OFFICERS
DESCRIPTION OF THE OFFENSE.
A. UH HUH. CORRECT.
(m8 26, DID IT OCCUR WHILE HE WAS ENGAGED IN THE COMMISSION OF
ANOTHER OFFENSE, CODED OVER ON THE RIGHT, ARMED ROBBERY. NUMBER
02, 4, AGGRAVATED BATTERY.
HOW DID YOU MAKE THOSE DETERMINATIONS? AGAIN FROM THE
SOURCE MATERIAL. THE SOURCE MATERIAL IS THE SAME?
Ae. SAME SOURCE MATERIAL.
Ge. DID YOU HAVE ANY SPECIFIC DEFINITIONS WITH REGARD TO THOSE
TERMS? WAS THERE ANY QUESTION IN THIS CASE?
Fe WELL, WITH RESPECT TO AGGRAVATED BATTERY. NO, THERE WASN'T
A SPECIFIC DEFINITION. THIS PERSON WAS SEVERELY BEATEN BEFORE
HE WAS TAKEN OUT IN THAT SECLUDED AREA AND KILLED, AND THATS
WHY THAT WAS CODED.
Q. THAT WOULD BE SOMETHING OTHER THAN WHATEVER BATTERY IS
REQUIRED TO CAUSE THE DEATH ITSELF?
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GATES - DIRECT
A. YES.
od. TURNING —- OH. AGAIN, THE 0% IN THE THIRD FOIL ON THAT PAGE
4; THATS JUST A HOLDING VARIABLE THERE AGAIN?
A. YES.
(2 TURNING TO PAGE 7, THE DEFENDANT’S MOTIVE. CODED TO
FACILITATE OBTAINING MONEY OR OTHER THINGS OF VALUE FROM -— FOR
THE DEFENDANT OR ANOTHER.
A. UH HUH.
Q. AND 1S, TO PREVENT ARREST, OR RECAPTURE THE DEFENDANT OR
ANOTHER.
SAME SOURCE?
A. SAME SOURCE.
AND I MIGHT ADD THAT I MIGHT CODE THAT DIFFERENTLY IF I
WERE CODING IT TODAY.
a. WITH REGARD TO WHAT?
Ae WITH REGARD TO PREVENTING THE ARREST OR RECAPTURE OF THE
DEFENDANT. I THINK INSTEAD I WOULD HAVE CODED IT TO SILENCE A
WITNESS TO CRIME. I THINK THAT’S, ALTHOUGH I HAVEN‘T READ THE
FILE RECENTLY, BUT IT SEEMS TO ME THAT'S -—- i EN
| Qa SO THAT WOULD CONTAIN TWO VARIABLES OF SLIGHTLY DIFFERENT
NUANCE?
A. THAT“S CORRECT.
THE COURT: LET ME ASK YOU A QUESTION.
ON WHAT FACTUAL PREDICATE DID YOU MAKE THAT ASSUMPTION
ABOUT THE ACTION OR THE REASON FOR THE ACT? I MEAN. THE MONEY 1
371
GATES =- DIRECT
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UNDERSTAND, SEEMS TO BE SELF-EVIDENT. FROM YOUR SUMMARY. BUT
WHY DID YOU ASSUME EITHER THAT IT WAS TO SILENCE THE WITNESS OR
TO PREVENT ARREST?
THE WITNESS: I THINK THAT WOULD FALL UNDER WHAT I
WOULD CONSIDER REASONABLE INFERENCE TO DRAW FROM A READING OF
THE FILE. THAT THIS STRANGER COMES INTO TOWN, AND HE INTERACTS
WITH THESE PEOPLE SO THAT HE COULD EASILY RECOGNIZE WHO THEY
ARE, AND HE MIGHT KNOW THEIR NAMES: HE KNOWS WHAT BAR HE MET
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THEM IN THERE WERE OTHER PEOPLE AT THE PLACE WHERE THEY WERE
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DRAW AN INFERENCE THAT IF THEY MURDERED HIM AFTER THAT, AND
12 POURED GASOLINE ALL OVER HIM AND BURNT HIM SO THAT THE BODY WAS
13 BEYOND RECOGNITION, THAT THE PURPOSE OF THAT WAS TG CONCEAL :
14 SOMETHING.
13 BY MR. FORD:
16 Qe. WOULD YOU CODE THAT IN A SITUATION WHERE SOMEBODY WAS, JUST
17 SHOT SOMEBODY IN A HOLDUP. WOULD THAT BE —-—
13 A. NO», NO.
1? A. -—- EITHER THEN OR NOW BE YOUR --
20 A. NO. BECAUSE THERE’S A TON OF REASONS WHY YOU COULD SHOOT
21 SOMEONE IN A HOLDUP. YOU COULD HEAR A NOISE AND PANIC, OR
22 SOMETHING LIKE THAT. SO THIS IS NOT A SITUATION LIKE THAT, IT’S
23 A SITUATION --
24 THE COURT: SUPPOSE THE EVIDENCE SHOWS THAT THE HOLDUP
23 MAN HAD ALREADY GOTTEN THE MONEY. TYPICAL 7-11 ROBBERY. HE
372
GATES - DIRECT
1 ACTUALLY GETS THE MONEY. HAVING IT IN HIS HAND HE THEN SAYS, BANG)»
2 YOU’RE DEAD, TO THE CASHIER. HOW WOULD YOU CODE THAT?
3 THE WITNESS: IN THE PROCEDURAL REFORM STUDY, IT’S
4 POSSIBLE THAT I WOULD, IT“S POSSIBLE THAT I WOULD, DEPENDING ON
3 THE READING OF THE WHOLE FILE, CODE THAT AS SILENCING A WITNESS
é TO A CRIME OR PREVENTING ARREST OR RECAPTURE.
% 7 AND I WOULD EXPLAIN WHY I DID THAT IN THE AMBIGUITY
8 SECTION.
? BY MR. FORD:
10 Qo. WHEN YOURE CODING THESE FROM THE SUMMARIES AND THE PAROLE
11 BOARD, DONE BY THE PAROLE BOARD INVESTIGATIVE OFFICER AND
12 PERHAPS POLICE REPORTS OR WHATEVER OTHER MATERIALS ARE IN THE
13 FILE. TO SOME EXTENT DO INFERENCES LIKE THIS REFLECT INFERENCES
14 THAT MAY BE MADE, OR THOSE INDIVIDUALS WHERE THEY WOULD SIMPLY
13 SAY THIS WAS DONE FOR THIS REASON OR THIS PERSON WAS TAKEN OUT
16 LATER AFTER THE ROBBERY WAS COMPLETED AND HE WAS UNCONSCIOUS,
17 AND THEN KILLED, IS THAT =— WHICH -- |
18 A. IF, IF THE PAROLE BOARD OFFICER HAD DRAWN SUCH AN
19 INFERENCE, BASED ON HIS READING OF THE POLICE FILE. AND STATED
20 IN HIS SUMMARY OF THE POLICE FILES THAT THIS GUY WAS TAKEN QUT
21 BACK TO SILENCE HIM AS A WITNESS TO A CRIME, I WOULD NOT BE ABLE
22 TO RECOGNIZE THAT THAT WAS AN INFERENCE THAT WAS DRAWN BY THE
23 PAROLE BOARD OFFICER AS OPPOSED TO SOMETHING HE WAS REPORTING HE
24 SAW IN A STATEMENT IN THE POLICE FILES. 23 AND I WOULD DEFINITELY CODE IN THAT CASE, TO SILENCE A
373
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1 WITNESS TO A CRIME.
2 Ge WAS YOUR UNDERSTANDING WITH REGARD TO YOUR INSTRUCTIONS AND
3 YOUR DUTIES HERE TO CODE THIS ACCORDING TO WHAT YOU THOUGHT
4 ACTUALLY HAPPENED OR WHAT THE FILE REFLECTED?
A THERE“S A DIFFERENCE BETWEEN THE PROCEDURAL REFORM STUDY iT
AND THE CHARGING AND SENTENCING STUDY.
IN PROCEDURAL REFORM STUDY MY UNDERSTANDING WAS THAT I
WAS TO READ THE FILE AND DRAW REASONABLE INFERENCES ABOUT WHAT
0
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HAPPENED BASED UPON MY READING THE FILE.
10 @. AND THAT RULE WAS CHANGED SOMEWHAT AND TIGHTENED SOMEWHAT
11 FOR STUDY NUMBER 27
12 |A. IT WAS CHANGED A LOT.
r 13 |@. WE’LL GET TO THAT LATER.
14 SPECIAL PRECIPITATING EVENTS. NINE CODES AGAIN, NOT
15 APPLICABLE. APPARENTLY NONE OF THE EIGHT LISTED THERE,
16 | POSSIBILITIES APPLIED.
17 PAGE 8, METHOD OF KILLING CAUSING DEATH. ENTER UP TO
18 FOUR FOILS. |
19 A. UH HUH.
20 @. HERE WE HAVE A "3." GUNSHOT WOUND, BRUISES AND BURNS,
21 ARSON?
22 A. RIGHT.
23 |@. THEN 09 IS A HOLDING VARIABLE.
24 WHAT IF YOU HAD MCRE THAN FOUR, IF THAT’S EVER
23 POSSIBLE? DO YOU THINK THAT WAS EVER POSSIBLE?
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A. IF YOU HAD MORE THAN FOUR, CLEAR INSTRUCTIONS WERE TO MAKE
SURE THAT THAT WAS INCLUDED IN THE SUMMARY.» AND IN THE
AMBIGUITIES, IF THERE WAS NOT ENOUGH ROOM TO CODE THIS
PARTICULAR ONE.
Gd. DOWN AT THE BOTTOM OF THAT PAGE, THE GUNSHOT WOUND IS WHAT
ACTUALLY CAUSED THE DEATH.
IS THAT WRITTEN BY YOU. OR SOMEONE ELSE?
A. THAT IS WRITTEN BY ME.
Wo. AT THE TIME?
As AT THE TIME. YEAH.
Q. PAGE 9, NUMBER 30, SPECIAL AGGRAVATING AND MITIGATING
FEATURES OF THE OFFENSE. ENTER UP TO SIX FOILS?
A. HERE’S AN EXAMPLE OF WHAT YOU WERE JUST TALKING ABOUT. AND
THIS IS, IN THIS INSTANCE, THERE WERE, THERE ARE EIGHT
AGGRAVATING CIRCUMSTANCES, AND THERE WASN’T ENOUGH ROCM TO CODE
THEM IN THE FOILS THAT WAS PROVIDED. SO WHAT I DID IS CREATED A
COUPLE FOILS DOWN BELOW. AND. LET’S SEE WHAT THEY ARE:
ATTEMPTED TO CONCEAL OR DISPOSE OF THE BODY, AND CRIME INVOLVING
AGGRAVATED BATTERY BEFORE THE ACTUAL KILLING, AND BOTH OF THOSE
ARE EMBODIED IN THE SUMMARY AT THE END.
THE COURT: I THINK WE ARE TO GATHER FROM THE ENTRY ON
THE SIDE THAT THOSE NEVER MADE IT INTO THE DATA BASE, HOWEVER.
THE WITNESS: THAT MIGHT HAVE BEEN AN INSTRUCTION GIVEN
TO THE ORIGINAL KEYPUNCHER. I DON‘T KNOW IF IT’S TRUE THEY
NEVER MADE IT INTO THE DATA BASE.
>
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MR. FORD: I THINK WE WILL LEARN MORE OF THAT ANON,
YOUR HONOR. I THINK THAT’S. WERE STILL WORKING ON THE
INGREDIENTS. I THINK THAT’S PART OF THE PUDDING.
BY MR. FORD:
Q. PAGE 10. NUMBER OF VICTIMS. MOST OF THAT IS NOT
APPLICABLE TO THIS CASE. APPARENTLY.
A. OKAY» THIS CODING ILLUSTRATES THE OPERATION OF A RULE THAT
WE WERE FOLLOWING IN CODING THIS QUESTIONNAIRE WHERE YOU CAN SEE
THAT THE, AT THE TOP OF PAGE 10, QUESTION NUMBER 31, THE NUMBER
OF PERSONS KILLED BY THE DEFENDANT. AND THATS ONE PERSON. AND
THEN THE NUMBER OF VICTIMS KILLED BY OTHER CO-PERPETRATORS. AND
THATS CODED AS "NONE."
WELL, IT’S CLEAR FROM THE SUMMARY THAT THE
CO-PERPETRATOR, KENNETH HARDY, IS THE ONE THAT WAS CONSIDERED AS
THE ACTUAL TRIGGER MAN.
OUR RULE WAS IF THERE WERE CO-PERPETRATORS, AND THOSE
CO-PERPETRATORS PARTICIPATED IN THE VIOLENCE THAT LED TO THE
DEATH OF THE VICTIM, THEN FOR THE PURPOSES OF CODING OF THE
QUESTIONNAIRE, WE WOULD CODE THE QUESTIONNAIRE OF THE DEFENDANT
WHOSE QUESTIONNAIRE WE WERE CODING AS HAVING KILLED THE VICTIM.
THAT WAS THE RULE THAT PROFESSOR BALDUS ASKED US TO FOLLOW.
THE COURT: SAID SIMPLY, IF SOMEBODY ELSE WAS THE
TRIGGER MAN, YOU CODED IT AS THOUGH THE DEFENDANT WAS THE
TRIGGER MAN.
THE WITNESS: NO, THAT’S NOT, THAT S NOT QUITE RIGHT.
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IF THERE WERE TWO PEOPLE IN A HOLDUP, OR ROBBERY. AND
ONE KILLED THE OTHER, THE VICTIM. THEN ONLY THAT DEFENDANT WOULD
BE CODED.
YOU SEE, THE OTHER CODEFENDANT DIDNT PARTICIPATE IN
PULLING THE TRIGGER OR DOING ANYTHING. IN THIS CASE. THESE
THREE PEOPLE PLANNED THIS THING, THEY BEAT THE GUY. THEY TOOK
HIM OUT IN THE WOODS, THEY WERE ALL THERE, AS FAR AS I CAN TELL
FROM THE SUMMARY, THEY WERE ALL PARTICIPATING IN THESE ACTS THAT
LED TO THE VICTIM’S DEATH.
THE COURT: WHAT ABOUT A SITUATION WHERE THREE OR FOUR
YOUNG PEOPLE DECIDE THEY/RE GOING TO COMMIT AN ARMED ROBBERY AND
ALL ARE PARTICIPATING IN THE ARMED ROBBERY. DURING THE COURSE OF
WHICH. ONE SHOOTS SOMEONE ELSE.
DO YOU CODE THE CO-~PERPETRATOR WHO DIDN’T DO THE
SHOOTING AS HAVING SHOT?
THE WITNESS: IT DEPENDS ON THE CIRCUMSTANCES. IF THE
OTHER GUYS HAD GUNS, AND IT WAS CLEAR FROM THE FILE THAT THEY
WERE GOING TO KILL THE PERSON, AND ONE GUY HELD THE GUN TO HIM,
SAID, "COME ON, WERE TAKING YOU IN THE BACK ROOM," AND OTHER GUY
PULLED THE TRIGGER, I THINK IN THAT CIRCUMSTANCE I WOULD HAVE
FOLLOWED THIS RULE THAT 1 JUST DESCRIBED.
IF ON THE OTHER HAND, FOUR PEOPLE JUST BUST IN A STORE
TO ROB IT AND ONE OF THE FOUR PANICS AND JUST BLOWS HIS GUN OFF
AND KILLS SOMEBODY. WELL. I WOULDN’T IN THAT CIRCUMSTANCE CODE
IT THAT WAY.
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1 BY MR. FORD:
2 (m8 IN THIS SITUATION, IT WAS CLEAR THAT THE SUBJECT HERE
ACTUALLY PHYSICALLY BEAT THIS PERSON, AT LEAST INTO
UNCONSCIOUSNESS AND PRESUMABLY WAS NOT DETERMINED AT LEAST THAT
HE WASN“T DEAD BEFORE THEY THEN SHOT HIM AND SET HIM ON FIRE. IS
3
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6 THAT RIGHT? SO HERE IT’S AS IF TWO PEOPLE HAD BOTH SHOT HIM AND
7 ONE PERSON’S GUNSHOT HAD CAUSED DEATH AND THE OTHER DID NOT. IS
8 THAT RIGHT?
? A. IN A SENSE.
10 MS. WESTMORELAND: YOUR HONOR, I BELIEVE THAT’S A VERY
13 LEADING QUESTION. I ASK COUNSEL NOT TO LEAD HIS WITNESS QUITE
12 S0 MUCH, PLEASE.
13 THE COURT: YOU ARE CORRECT. IT IS A LEADING QUESTION.
14 LET ME MAKE A NOTE OR TWO, AND WE‘LL TAKE A BREAK.
15 THE WITNESS: MAY I RESTATE THE RULE FOR YOU ONCE?
16 MR. FORD: WAIT WHILE THE COURT MAKES SOME NOTES.
17 PLEASE.
18 THE COURT: GO AHEAD.
19 THE WITNESS: IF THE CO-PERPETRATORS PARTICIPATED IN
20 THE VIOLENT ACTS THAT LED TO THE DEATH OF THE VICTIM THEN YOU
21 WOULD FOLLOW THE RULE THAT IVE DESCRIBED.
22 THE COURT: AND?
23 THE WITNESS: AND FOR THE PURPOSES OF THE QUESTIONNAIRE
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24 OF THE DEFENDANT THAT YQU’RE CODING, YOU WOULD CODE HIM AS
235 HAVING BEEN THE. QUOTE. TRIGGER MAN.
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THE COURT: ALL RIGHT. I UNDERSTAND. I“M TRYING TO
UNDERSTAND THE IMPLICATIONS TO THE PUDDING.
MR. FORD: WELL. COULD I ASK A COUPLE MORE QUESTIONS ON
WHICH INGREDIENTS WERE —-—
BY MR. FORD:
QQ. WE’RE TALKING ABOUT STUDY 1 NOW WITH REGARD TQ THIS RULE?
A. THIS IS STUDY 1.
a. IS THE RULE THE SAME ON STUDY 27?
A. NC.
Qa. ILL ASK YOU MORE ABOUT THAT LATER.
THE COURT: LET’S TAKE ABOUT A TEN-MINUTE BREAK.
{RECESS TAKEN.)
EDWARD RAYMOND GATES,
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT’D)
BY MR. FORD:
Q. MR. GATES, THE BOTTOM SECTION OF PAGE 10, I BELIEVE, IS
WHERE WE LEFT OFF.
SERIES OF VARIABLES WITH REGARD TO THE NUMBER OF
PERSONS INJURED CR ENDANGERED. IN THIS CASE, APPARENTLY,
NUMBER 34, QUESTION 234, IS CODED VICTIM’S ONLY PERSON INVOLVED
IN THE INCIDENT. AND THAT’S FOLLOWED THROUGH, IS THAT RIGHT?
- NB p——, ——— bin eet tere, } mein libertine “i v - pr. p——. ——— —— —— Y——
379
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A. YES. THAT’S THE CORRECT CODING FOR THAT FOIL.
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2 a. MOVING THEN TO PAGE 11. STATUS OF THE DEFENDANT.
3 NUMBER OF ALTERNATIVES. AGAIN WHERE WOULD YOU GET THIS
4 INFORMATION? |
3 Aa THIS INFORMATION ALSO FROM THE DEPARTMENT OF PARDONS AND
& PAROLES FILES. THEY KEEP, THEY DO AN INVESTIGATION ON THE
» 7 DEFENDANT ON HIS PERSONAL HISTORY, AND THAT IS WHERE THIS
8 INFORMATION COMES FROM.
? THE COURT: LET ME ASK YOU A QUESTION.
10 I KNOW FROM READING PRESENTENCE REPORTS THAT YOU
11 OCCASIONALLY GET SOME DEFENDANTS THAT HAVE VIRTUALLY NO WORK
12 RECORD, BUT MOST EVERYBODY HAS HAD AT LEAST ONE JOB IN THEIR
13 LIFE, IT MAY HAVE BEEN FOUR MONTHS OR SOMETHING LIKE THAT.
14 LET ME GIVE YOU A HYPOTHETICAL: 27 YEAR OLD MALE.
15 HADN’T WORKED IN FIVE YEARS, BUT THE LAST TIME HE WORKED HE WAS
16 A DITCH DIGGER FOR FOUR MONTHS.
17 HOW DID YOU, HOW WOULD YOU CLASSIFY SOMEBODY LIKE THAT?
18 THE WITNESS: WE WOULD CLASSIFY HIM AS AN UNSKILLED
LABORER, EVEN THOUGH HE HAD NOT WORKED IN FIVE YEARS.
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THE COURT: WHAT HAPPENS IF HE HAS A COLLEGE EDUCATION?
21 THE WITNESS: THAT WILL BE REFLECTED SOMEWHERE ELSE IN
22 THE QUESTIONNAIRE.
23 BY MR. FORD:
24 GQ. IN THIS CASE, BLUE COLLAR WORKER IS DEFINED RIGHT NEXT TO.
23 I TAKE IT, RIGHT NEXT TO VARIABLE NUMBER, I GUESS IT”S VARIABLE
380
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1 NUMBER 18. IT’S LISTED UNDER QUESTION 33, DEFINITION THERE IN
2 PARENTHESES?
3 A. IM SORRY, COULD YOU REPEAT THE QUESTION?
4 n J WITH REGARD TO THE DEFINITION OF BLUE COLLAR WORKER, THAT’S
3S THE DEFINITION YOU FOLLOWED THERE THROUGHOUT THE STUDY. WAS THAT
é CHANGED IN ANY WAY?
7 Re NO, THAT'S CORRECT.
8 Qa. TURNING TO PAGE 12. SERIES OF QUESTIONS. OR FOILS ACROSS FROM
? QUESTION NUMBER 40, CODED AS 02, 04 AND 03.
10 WHAT DO THOSE REFLECT -- PERHAPS THAT’S 40 AND 41. I“M
11 SORRY. ACROSS FROM 40 IS CODED 02. WHAT DOES THAT INDICATE?
12 A. THAT INDICATES THE NUMBER OF CO-PERPETRATCRS.
13 Q. CRIMINALLY INVOLVED ALONG WITH THE DEFENDANT?
14 Ae THATS CORRECT.
15 Q. AND 41 INDICATES 04 AND 0357
16 A. 04 INDICATES THAT THE DEFENDANT PARTICIPATED AS A CO-EQUAL
17 IN THE MURDER.
18 AND NEXT TO C,» OS, INDICATES THAT THE DEFENDANT
= 19 PARTICIPATED DIRECTLY AS A CO-EQUAL IN THE CONTEMPORANECUS
@® 20 CRIME.
21 Q. G0 WOULD THIS INFORMATION RELATE TO THE PREVIOUS
22 INFORMATION WITH REGARD TO TRIGGER MAN?
23 A. YES. I MEAN IT’S CONSISTENT WITH THAT.
24 THE COURT: AND I PRESUME THAT IF THE SHOT APPEARED TO
23 YOU TO BE BY ACCIDENT, NOT PRE-FLANNED OR ANYTHING ELSE. YOU
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MIGHT CODE IT DIFFERENTLY THAN IN AN ARMED ROBBERY WHERE SOMEONE
WAS --
THE WITNESS: OH. YES.
THE COURT: =-— ACCIDENTALLY SHOT.
THE WITNESS: SURELY.
BY MR. FORD:
QA WITH REGARD TO THE WORD "TRIGGER MAN," I NOTICE THAT'S USED
IN THE QUESTIONNAIRE AND THAT IS ALSO USED IN YOUR SUMMARY IN
THIS PARTICULAR CASE WHERE YOU REFER TO THE, KENNETH BEING THE
ACTUAL TRIGGER MAN AND GASOLINE MAN.
IS THE TRIGGER MAN IN YOUR SUMMARY THERE USED IN
EXACTLY THE SAME SENSE AS TRIGGER MAN IN THE INSTRUCTIONS BACK
ON PAGE 10 IN THE PARENTHESES THERE ON THE QUESTION 31 WHERE IT
SAYS, THE SUBJECT WE WERE TALKING ABOUT JUST BEFORE THE BREAK?
A. NO, IN MY SUMMARY. BY "TRIGGER MAN“ I MEAN ACTUALLY THE
PERSON WHO PULLED THE TRIGGER OF A GUN, "TRIGGER MAN" AS USED IF
QUESTION NUMBER 31, IS TRIGGER MAN IN THE GENERIC SENSE. THAT
IS, WHO IS THE PERSON THAT’S RESPONSIBLE FOR THE DEATH OF THE
VICTIM. IT WOULDN’T HAVE TO BE WITH A GUN, IT COULD BE A KNIFE
OR POISON OR WHATEVER.
oe 241A, QUESTION 41A REFLECTS SOME INFORMATION REGARDING THE
TRIAL BEING BEFORE A JURY?
A. THAT”S CORRECT. AND IT INDICATES THAT.
Gl. AND THEN THREE 97S. WHAT ARE THOSE ABOUT?
Ad THIS IS A MISCELLANECUS QUESTION ABOUT WHAT HAPPENED AT THE
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TRIAL, AND THREE 97S ONLY INDICATE THAT. THAT I KNEW NOTHING
MORE ABOUT THE TRIAL WITHIN THOSE POSSIBILITIES THAT I COULD
HAVE LISTED, THAN THAT THE PENALTY TRIAL WAS BEFORE A JURY.
a. WHAT DOES THAT FIVE ZEROES THAT’S TYPED IN THERE. THREE
LINES UP FROM THE BOTTOM. I GUESS. DO YOU KNOW WHAT THAT 1S?
Ae THAT S, THAT’S A SIGNAL FOR THE KEYPUNCHER TO CONTINUE
FILLING THE CARD AND CODE, FIVE ZEROES IN THAT SPACE ON THE
COMPUTER CARD IS ALL THAT IS.
RQ. TURNING TO PAGE 13, MITIGATING CIRCUMSTANCES, A THROUGH H.
THATS EIGHT POSSIBILITIES LISTED, TWO OF THEM ENTERED HERE?
A. THAT“S CORRECT. I“VE INDICATED THAT THE DEFENDANT HAD USED
ALCOHOL IMMEDIATELY PREVIOUS TO THE CRIME AND I INDICATE THAT IT
HAD A SLIGHT EFFECT.
a. AGAIN THAT’S TO THE BEST OF YOUR KNOWLEDGE, BASED ON WHAT
SOURCE OF INFORMATION?
A. TO THE BEST OF MY KNOWLEDGE. BASED ON A COMPLETE READING OF |
THE DEPARTMENT OF PARDONS AND PAROLES FILE.
Re TURNING THEN TO PAGE, I GUESS IT’S 14, MINE‘S CUT OFF, THE
NEXT PAGE, QUESTION 43, RELATING TO VICTIM, ENTER UF TO FIVE
FOILS?
A. I HAVE FOUR FOILS.
Q. 1 HAVE FOUR FOILS, TOO. AND AR DIRECTION TO ENTER UP TO
FIVE FOILS. DO YOU HAVE FIVE FOILS ON YOUR COPY?
A. NO, I HAVE FOUR.
Qe SO DO I. IN THIS CASE, YOU ENTERED THREE?
Bk putamen etme. el meee etre nt ihe. Ser itl ptr hrs. Fontes. rhinitis Wh BR Abit... ti Wp—————, S——— to —— ————— (———
383
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I.
A. ENTERED THREE. 1 ENTERED THAT THE VICTIM AROUSED THE
2 DEFENDANTS RAGE PRIOR TO THE KILLING. I ANSWERED THAT THE
3 VICTIM HAD USED ALCOHOL IMMEDIATELY PREVIOUS TO THE CRIME AND
4 THAT THE EFFECTS OF THAT ALCOHOL WERE SUBSTANTIAL.
3 AND THAT WAS AGAIN BASED ON MY BEST UNDERSTANDING FROM
é READING THE COMPLETE FILE OF THE DEPARTMENT OF PARDONS AND
7 PARDLES.
8 THE COURT: PARDON ME JUST A SECOND. WAIT JUST A
9? SECOND. I WOULD LIKE TO HAVE SOME AMPLIFICATION ON WHY YOU
10 SELECTED AROUSED DEFENDANTS RAGE JUST PRIOR TO THE KILLING.
11 THE WITNESS: WELL, OUR RULE ON THE PROCEDURAL REFORM
12 STUDY, WHICH AGAIN IS DIFFERENT FROM THE RULE IN THE CHARGING
13 AND SENTENCING STUDY. WAS TO CODE ANYTHING IN QUESTION 43, NOW,
14 THIS IS THE QUESTION. RELATES TO THINGS THAT THE VICTIM COULD
135 HAVE DONE THAT WOULD IN SOME WAY POSSIBLY BE MITIGATING TO THE
16 DEFENDANT “S CASE.
17 AND SO OUR, OUR INFERENCE WAS, WAS WE WOULD BE MORE
18 LIKELY TO CODE SOMETHING THERE IF THE POSSIBILITY OF IT EXISTED
\ iv AS OPPOSED TO WHETHER OR NOT WE THOUGHT THAT WAS REASONABLY THE
» 20 CASE.
21 BY MR. FORD:
22 Qe DOES THIS MEAN THAT THE DEFENDANT WAS REASONABLE IN HIS
23 RACE OR -——
24 Re NO, IT HAS NOTHING TO DO WITH WHETHER OR NOT THE DEFENDANT
235 WAS REASONABLE. FROM MY READING OF THE SUMMARY RIGHT NOW, THEY
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INTENDED TO. THEY ENTICED THIS GUY INTC THEIR CARD GAME. AND
ee
THEY WANTED TO ROE HIM, TO STEAL HIS MONEY THROUGH PLAYING
CARDS, AND THAT AS I RECALL, IT MADE THEM VERY ANGRY WHEN HE
BECAME SO INTOXICATED THAT HE COULDN’T PLAY CARDS, AND THAT WAS
PART OF WHAT THEY CONSIDERED THE PROVOCATION FOR BEGINNING TO
BEAT HIM.
THE COURT: 1 SEE.
BY MR. FORD:
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Q. WITH REGARD TO THESE NUMBERS, SAY AT LEAST 1 THROUGH 17
UNDER THIS, WERE YOU MAKING ANY JUDGMENT AS TO WHETHER THIS WAS
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12 OCCURRED THAT FIT THAT DESCRIPTION? WHAT WERE YOU REPORTING?
13 A. IT WAS SOMETHING THAT OCCURRED THAT COULD POSSIBLY BE
14 CONSIDERED AS BEING, IT WAS JUST SOMETHING THAT HAD OCCURRED. |
135 A. WITH REGARD TO NUMBERS 18 THROUGH 20, WHERE THERE’S A
16 BLANK, SAYS OTHER EXTENUATING CIRCUMSTANCES, THAT WOULD BE A
17 PLACE WHERE YOUR JUDGMENT MIGHT COME IN AS TO WHAT WAS
18 EXTENUATING AND WHAT WAS NOT. RATHER THAN JUST WHAT HAPPENED?
19 |A. NO, THAT WAS NOT A CASE OF JUDGMENT. THAT WAS A CASE OF
20 |THE. OH. I‘M SORRY. |
21 VES, IF SOMETHING HAPPENED THAT WASN‘T COVERED BY THESE
22 | OTHER FOILS THAT WE THOUGHT IN ANY WAY COULD BE CONSTRUED AS
23 |BEING MITIGATING TO THE DEFENDANT, THEN WE WOULD HAVE CODED THAT
24 IN THAT AREA.
23 Qe. BUT ON 1 THROUGH 17 AGAIN. EVEN IF YOU FELT THIS MADE THE
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DEFENDANTS CRIME WORSE. IF HIS RAGE WAS AROUSED BY SOMETHING
-
THE VICTIM DID, YOU WOULD RECORD THAT FACT?
A. THATS CORRECT.
Gd. EVEN THOUGH WHATEVER YOU THOUGHT OF THE DEFENDANT FOR
DOING, THAT. IS THAT RIGHT?
A. I HAD NOT THOUGHT ABOUT THAT QUESTION IN THREE YEARS. AND
TO ANSWER THAT. I WOULD HAVE TO TAKE A MINUTE TO REFLECT.
I THINK THAT HAD ANY OF THOSE THINGS OCCURRED. BEEN
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PRESENT UPON A READING OF THE FILE, WE WOULD HAVE SIMPLY CODED
IT WITHOUT MAKING AN INDEPENDENT JUDGMENT AS TO WHETHER OR NOT
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JUDGMENT, IS THAT FAIR?
- a A. THAT’S CORRECT.
16 |@. AND THEN DOWN,» I GUESS 45. OR 45 I GUESS THE SUPPLEMENTAL
17 | VICTIM FORMS?
18 |A. YES. WHAT WE DO THERE, IF THERE WAS MORE THAN ONE VICTIM,
19 | MORE THAN ONE VICTIM IN A CASE. WE WOULD ENTER A VARIABLE OR
. 20 | NUMBER OF VICTIMS THAT THERE WERE AND CODE A SEPARATE
21 | SUPPLEMENTAL SHEET THAT DESCRIBED THE CHARACTERISTICS OF THE
22 |OTHER VICTIMS.
23 |@. AND 45A. THE DEFENDANT/S I.@. WHERE WOULD YOU OBTAIN THAT
24 | INFORMATION?
23 A. WE WOULD ALSO OBTAIN THAT INFORMATION FROM THE DEPARTMENT
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OF PARDONS AND PAROLES FILES.
Q. IS THAT FREQUENTLY AVAILABLE IN THOSE FILES?
A. YES, IT WAS.
QA. NOW. I TAKE IT FROM YOUR TESTIMONY, MR. GATES —— WELL.» WITH
REGARD TO THIS PARTICULAR QUESTIONNAIRE, I GUESS WE’RE THROUGH
IT, WAS THERE ANYTHING. HAVING GONE THROUGH IT AGAIN, IS THERE
ANYTHING PARTICULARLY ABOUT IT THAT SEEMS TO YOU TO BE
UNREPRESENTATIVE OR REPRESENTATIVE, IN ANY WAY DISTINGUISH IT
FROM OTHERS IN TERMS OF THE KINDS OF THINGS THAT YOU CODED IN
AND THE, WHATEVER DIFFICULTIES THERE MAY HAVE BEEN OR WHAT
FACILITY THERE MAY HAVE BEEN IN FILLING IT OUT?
Fa NO, I THINK THIS IS FAIRLY REPRESENTATIVE.
A. AND BASED ON YOUR WORK IN THIS. WAS THERE ANY SYSTEMATIC
DIFFERENCE BETWEEN GROUPS OF CASES YOU WORKED ON WHERE THE
CHOICES IN THESE AREAS OR DECISIONS IN THESE AREAS, IN CODING.
WOULD HAVE BEEN SYSTEMATICALLY DIFFERENT IN ONE GROUP RATHER
THAN ANOTHER?
A. NO. NOT AT ALL.
Q. YOU SAID AT ONE POINT THERE MIGHT BE SOMETHING IN ONE AREA
WHERE YOU WOULD HAVE CODED A THING, AVOID ARREST, AS A SILENCE
VICTIM, THAT KIND OF DIFFERENCE, THAT YOU MIGHT HAVE DONE A
LITTLE DIFFERENTLY. NOW DO YOU THINK IN OTHER QUESTIONNAIRES
THERE MAY HAVE BEEN THOSE SIMILAR KIND OF DIFFERENCES. OF THE
NUMBERS OF VARIABLES IN THIS QUESTIONNAIRE?
AR. YES, THE WAY THE QUESTIONNAIRE‘S CONSTRUCTED. AND THE WAY
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THAT THE RULES ARE FOR CODING THE QUESTIONNAIRE, THERE WERE
--
TIMES WHEN ONE WOULD HAVE TO EXERCISE JUDGMENT, AND THE KINDS OF
THINGS THAT WE HAVE DISCUSSED EARLIER ARE THE KINDS OF
JUDGMENTAL ISSUES THAT WOULD ARISE.
a. WITHIN THE LIMITS OF WHAT YOU COULD DO AND THE DEFINITIONS
OF THIS STUDY, AND THE MATERIALS AVAILABLE TO YOU. WAS THIS
REPRESENTATIVE OF THE LEVEL OF PRECISION AND LEVEL OF DETAIL YOU
WERE ABLE TO OBTAIN THROUGHOUT THIS STUDY, MORE OR LESS. JUST
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NOT HAVING LOOKED AT EVERY OTHER ONE, BUT IN TERMS OF YOUR
10 RECOLLECTION AT THIS POINT?
11 A. IVE REALLY ONLY LOOKED AT THIS ONE, IT WAS THE ONLY ONE I
12 PULLED, SO, IT’S DIFFICULT TO SAY.
13 BUT I THINK THAT THIS FAIRLY REPRESENTS THE CODING.
15 a. MS. WESTMORELAND WANTS TO BRING OUT ANOTHER FOUR HUNDRED
15 QUESTIONNAIRES AND CROSS-EXAMINE YOU ABOUT THEM. YOU THINK SHE
16 MIGHT FIND SOME ERRORS IN AREAS WHERE JUDGMENT MIGHT HAVE BEEN
17 DIFFERENT? |
18 Fi OH, YES. I MEAN THE FACTUAL CIRCUMSTANCES OF THESE CASES
adr b ARE VERY DIFFERENT. AND, AND I‘M SURE THAT SHE WILL FIND SOME
4 20 DIFFERENCES IN JUDGMENT OR SOME MISTAKES IN CODING. THERE WERE
21 JUST AN ENORMOUS, THEYZRE COMPLEX.
22 BUT IF SHE, IF MS. MORELAND, WESTMORELAND PULLED OUT
23. FOUR HUNDRED OR S80, I“M CONFIDENT THAT THEY WOULD BE AS RELIABLE
24 AS THIS QUESTIONNAIRE WAS.
25 @. YOU CODED AT THE GEORGIA SUPREME COURT ARCHIVES. GEORGIA
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SUPREME COURT AND FINALLY, THE PAROLE BOARD.
WHEN DID YOU FINISH ALL THAT WORK?
A. 1 DIDN’T FINISH ALL THE PAROLE BOARD WORK UNTIL THE SUMMER
OF 1981.
a. WELL, WAS THERE A POINT WHEN YOUR FIRST TERM: LET’S PUT IT,
IN GEORGIA, WORKING EXCLUSIVELY ON STUDY NUMBER 1 ENDED?
A. YES. THAT ENDED ON, ACTUALLY IT ENDED EARLY JANUARY OR
MID-JANUARY, 1981,
1 LEFT GEORGIA. STOPPED CODING CASES ON DECEMBER 22.
AND WENT HOME FOR THE HOLIDAYS. AND PROFESSOR BALDUS HAD OFFERED
ME THE JOB OF SUPERVISING THE CODERS FOR THE C.S.S. STUDY FOR
THE SUMMER OF 1981, THAT'S THE CHARGING AND SENTENCING STUDY,
STUDY NUMBER 2, AND I HAD ACCEPTED THAT OFFER, AND AFTER LEAVING
GEORGIA. I BEGAN MY WORK ON REVISING THE QUESTIONNAIRE, THE
PROCEDURAL REFORM QUESTIONNAIRE.
WHAT 1 DID WAS BASED ON MY EXPERIENCE IN CODING OVER
TWO HUNDRED QUESTIONS, I WROTE DOWN A LIST OF SUGGESTIONS FOR
CHANGES IN THAT QUESTIONNAIRE TO MAKE IT A BETTER ONE AND SENT
THAT TO PROFESSOR BALDUS.
@. AND WHEN DID YOU DO THAT?
A. 1 DID THAT IN JANUARY OF 1981.
@. AND WHERE WERE YOU THEN?
A. I WAS IN BOSTON THEN.
Q. AND WAS THERE A SHARP LINE WHERE YOUR WORK STOPPED BEING ON
STUDY NUMBER 1 AND STARTED BEING ON STUDY NUMBER 2 OR DID THE
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TWO KIND OF BLEND INTO EACH OTHER?
A. THE TWO BLENDED INTO EACH OTHER.
@. WHAT. WHEN YOU WERE IN BOSTON. MAKING THOSE REVISIONS, I
TAKE IT THAT WAS FOR THE LATER STUDY, NUMBER 27?
A. THAT WAS FOR THE LATER STUDY.
@. DID YOU DO ANY WORK THAT WAS EXCLUSIVELY DIRECTED AT THE
FINISHING UP STUDY NUMBER i AT THAT TIME IN BOSTON?
A. AS 1 RECALL, I, AS I RECALL. I CODED ONE OR TWO CASES THAT
HAD BEEN MISSED, AND WHAT PROFESSOR BALDUS DID WAS PROVIDE ME
WITH THE YORK QUESTIONNAIRE AND THE YORK CARDS, AND THE SUPREME
COURT OPINION AND THAT SORT OF THING, AND HE SENT ME A WHOLE
PACKET, AND I CODED ONE OR TWO BASED ON THAT.
Q. THEN HOW LONG DID YOU CONTINUE TO DO THIS WORK IN BOSTON?
A. 1 WORKED ON REVISING THE QUESTIONNAIRE MAYBE SIXTY OR
EIGHTY HOURS WORTH WHILE I WAS IN BOSTON. I WAS JUST DOING IT
PARTTIME.
AND THEN PROFESSOR BALDUS REQUESTED THAT I COME TO IOWA
AND DO SOME WORK WITH HIM THERE.
Q. WHEN DID YOU DO THAT?
A. I WENT TO IOWA IN EARLY MARCH OF 1981. y
Q. AND WHAT DID YOU DO WHEN YOU WENT TO IOWA?
A. I HAD SEVERAL RESPONSIBILITIES THAT, FIRST THING THAT WE
STARTED WITH WAS REVISING THE QUESTIONNAIRE AND PREPARING THE
CHARGING AND SENTENCING QUESTIONNAIRE, AND PROFESSOR BALDUS AND
I HAD EXTENSIVE DISCUSSIONS ABOUT HOW IT OUGHT TO BE MODIFIED.
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AND BASED ON THE INFORMATION THAT PROFESSOR BALDUS GAVE ME AND
BASED ON MY EXPERIENCE WITH WHAT INFORMATION WAS IN THE FILES IN
GEORGIA. I STARTED WRITING DRAFTS OF THE QUESTIONNAIRE AND THIS
PROCESS WENT ON OVER A PERIOD OF SEVEN WEEKS. WHERE I WOULD
WRITE A DRAFT AND SUBMIT IT TO DAVE, AND THEN HE WOULD GET BACK
TO ME IN COMMENTS AND THEN I WOULD WRITE SOME MORE.
Q. AND WHAT OTHER FUNCTIONS DID YOU HAVE WHILE YOU WERE THERE
IN IOWA WITH PROFESSOR BALDUS AT THAT POINT?
A. I ALSO ASSISTED PROFESSOR BALDUS IN HIRING THE CODERS FOR
THE SUMMER STUDY.
Re WHAT DID YOU DO IN THAT REGARD?
Ae THE FIRST THING I DID WAS ORGANIZE THE RESUMES OR THE
RESPONSES THAT CAME INTO US. AND I CALLED SOME OF THE CODERS, OR
THE APPLICANTS, AND I BELIEVE THAT PROFESSOR BALDUS CALLED SOME
OF THE OTHERS, AND AFTER A BRIEF CONVERSATION DESCRIBING TO THEM
THE, IN DETAIL THE NATURE OF THE JOB, THEN AFTER THAT. WE
RECEIVED RESUMES FROM ALL THESE PEOPLE. AND THEN I ORGANIZED
THE RESUMES. JUST BASED ON A READING OF THOSE. AND GAVE THEM TO
PROFESSOR BALDUS, AND THEN HE AMENDED MY HIERARCHY THAT I
CREATED.
AND THEN 1 CALLED REFERENCES ON ALL THE PEOPLE, AND
DESCRIBED TO THOSE, THE REFERENCES THAT I SPOKE WITH, DETAILS OF
THE JOB, AND THE CRITERIA THAT PROFESSOR BALDUS WAS PARTICULARLY
INTERESTED IN, AND ASKED QUESTIONS ABOUT THE. THE APPLICANTS AND
WHETHER OR NOT THEY COULD DO THE JOE.
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a. AND ULTIMATELY. HOW MANY PEOPLE WERE HIRED THROUGH THAT
PROCESS?
Ae FIVE PEOPLE WERE HIRED THROUGH THAT PROCESS.
Q. AND DID YOU COME TO KNOW THEM YOURSELF?
as YES, I DID.
a. WHO WERE THEY?
A. THEY WERE JOHN GRENNO, MATTHEW ESTES, ORI CORB. MARTHA
MCGILL. AND LEANNE DIGRACIA.
Q. ABOUT HOW OLD WERE THEY?
A. THEY WERE BETWEEN 22 AND 24 YEARS OLD. AND THEY WERE ALL
SECOND YEAR LAW STUDENTS.
Q. DID YOU, I TAKE IT YOU CAME TO WORK WITH THEM OVER THE NEXT
SEVERAL MONTHS. IS THAT RIGHT?
A. YES, THAT’S CORRECT.
Gl. ABOUT HOW MUCH TIME DID YOU SPEND WITH THEM?
A. OH. I WAS WITH THEM NINE OR TEN HOURS A DAY, FOR TWELVE
WEEKS.
A. HAVE YOU KNOWN A FEW OTHER SECOND YEAR LAW STUDENTS IN YOUR
TIME?
A. YES.
Q. HAVING JUST BEEN ONE?
Au YES.
ol. HOW WOULD THESE COMPARE, IN TERMS OF THEIR INTELLIGENCE,
DILIGENCE, RESPONSIBILITY?
Re. THESE PEOPLE WERE MOTIVATED, THEY HAD ABILITY TO WORK AS A
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TEAM. WHICH WAS VERY IMPORTANT TO THIS RESEARCH EFFORT. BECAUSE
IT REQUIRED GETTING ALONG WITH ONE ANOTHER IN CLOSE QUARTERS.
COMMUNICATING WITH ONE ANOTHER A LOT ABOUT WHAT WE WERE DOING.
AND JUST GENERALLY WORKING LONG HARD HOURS ON TEDIOUS WORK AND
DOING A GOOD JOB. :
@. WERE THEY, THE QUALITIES YOU FOUND IN THEM CONSISTENT WITH
YOUR EXPECTATIONS BASED ON YOUR RESUMES AND THE CALLS YOU MADE
'T0 THEIR REFERENCES AT THE TIME YOU ADVISED PROFESSOR BALDUS ON
HIRING THEM?
A. YES. ABSOLUTELY.
Q. NOW, YOU INDICATED THAT YOU ASSISTED PROFESSOR BALDUS IN
PREPARING AND REVISING QUESTIONNAIRE. DID YOU ASSIST HIM WITH
REGARD TO ANY OTHER DOCUMENT PREPARATION AT THAT TIME?
A. YES. I WAS, I ASSISTED PROFESSOR BALDUS WITH PREPARING ALL
THE LISTS OF THE CASES. OF THINGS THAT WE WOULD BE DOING IN
GEORGIA.
I HAD AN ENORMOUS AMOUNT OF ADMINISTRATIVE
RESFONSIBILITIES THAT ESPECIALLY REQUIRES A GENERATION OF LISTS
OF THINGS,
Q. WHEN YOU SAY YOU ASSISTED HIM WITH PREPARING A LIST OF
CASES TO BE STUDIED. IS THAT RIGHT. THE STUDY SAMPLE?
A. THATS PARTIALLY CORRECT.
SPECIFICALLY. THE KIND OF THINGS THAT I WOULD DO IS
PROCESS MATERIAL AS IT CAME IN FROM THE DEPARTMENT OF
CORRECTIONS AND TAKE AND MAKE COPIES OF IT AND TAKE THAT BULK OF
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MATERIAL TO PROFESSOR WOODWORTH. AND THEN HAVE THE PROFESSOR
pt
WOODWORTH WORK WITH THAT MATERIAL AND THEN GIVE ME BACK THINGS
AND THEN BRING HIM MORE, JUST THAT KIND OF THING.
@. THAT ASPECT OF YOUR WORK WAS A MECHANICAL OR DECISION
MAKING KIND OF THING?
A. JUST MECHANICAL.
QA. DID’ YOU PARTICIPATE IN ANY OF THE WRITING OR DRAFTING OF
DOCUMENTS AT THAT TIME?
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A. YES, I, I WROTE THE DRAFTS OF THE INSTRUCTIONS FOR THE
10 CODERS.
11 Q. CALLING YOUR ATTENTION IN YOUR NOTEBOOK TO DOCUMENT MARKED
12 EG-4, HEADED "INSTRUCTIONS FOR CODING GEORGIA PAROLE
13 QUESTIONNAIRE, PAROLE BOARD QUESTIONNAIRE, —- MAY 1981, BY EDWARD
14 GATES AND DAVID BALDUS." DO YOU FIND THAT DOCUMENT THERE?
15 A. YES. I DO.
146 (FS AND DO YOU RECOGNIZE WHAT THAT IS?
17 A. YES, THAT’S THE FINAL DRAFT OF THE INSTRUCTIONS THAT
18 PROFESSOR BALDUS AND I PREPARED PRIOR TO THE CODERS ARRIVING IN
Ww 19 GEORGIA.
20 Q. AND THATS THE DOCUMENT YOU WERE JUST SAYING YQU
21 PARTICIPATED IN THE WRITING OF?
22 A. THAT’S RIGHT, THIS OCCURRED THE SAME WAY I WAS WRITING THE
23 QUESTIONNAIRE. I WOULD WRITE AN EXTENDED SET OF INSTRUCTIONS
24 AND THEN GIVE THEM TO PROFESSOR BALDUS AND HE WOULD LOCK THEM
<3 OVER AND EDIT THEM. AND WE WOULD DISCUSS IT, AND THEN I WOULD
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WRITE IT AGAIN AND WE CAME UP WITH THE FINAL DRAFT.
Ty
2 Q. DO YOU KNOW WHAT WAS DONE WITH THIS DOCUMENT AFTER IT WAS
3 PREPARED?
4 A. YES. IN THE SAME WAY THAT CATHY CHRISTIAN AND I WERE, WERE
>’ SENT CASES TO PRE-CODE, THESE CODERS WERE SENT CASES ALONG WITH
é THIS SET OF INSTRUCTIONS BEFORE THEY WENT TO GEORGIA.
» 7 a. WHEN WAS THAT. WHAT MONTH AND YEAR?
3 Fe THAT WOULD HAVE BEEN IN LATE APRIL. NO, EARLY MAY OF 1981.
? a. AND DOES THIS APPEAR TO BE AN ORIGINAL OR COPY OF THAT
10 DOCUMENT THAT WAS SENT TO THOSE INDIVIDUALS.
11 A. THIS APPEARS TO BE A COFY.
12 Ql. AND DOES IT APPEAR TO BE A TRUE AND CORRECT COPY. TO THE
13 BEST OF YOUR RECOLLECTION?
14 A. YES. IT IS.
135 FS DID YOU PERSONALLY SEE THIS COPY OR THE ORIGINAL OF THIS
16 DOCUMENT OR SOME OTHER ACCURATE COPY OF THIS DOCUMENT IN THE
17 POSSESSION OF THE OTHER INDIVIDUALS WHO WERE CODING, WHO WERE
18 LATER TO CODE OR WHEN THEY WERE CODING THE STUDY NUMBER 27
2 19 A.
~~
20 GOT TO GEORGIA TO MAKE SURE IF THEY HAD FORGOTTEN THEIR COPY OR
YES, I HAD FIFTEEN OR TWENTY COPIES OF THESE WITH ME WHEN I
21 JUST IN CASE WE NEEDED MORE. AND I SAW A COPY OF THIS SET OF
22 INSTRUCTIONS IN THE HANDS OF EACH ONE OF THE CODERS IN GEORGIA.
23 MR. FORD: I OFFER EG-4. YOUR HONOR.
24 THE COURT: HAS IT BEEN OFFERED UNDER ANOTHER NUMBER?
Rr
Rn MR. FORD: NO, YOUR HONOR. IT HAS NOT. C
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MS. WESTMORELAND: THAT WAS GOING TO BE MY QUESTION,
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2 YOUR HONOR. I REMEMBER SOME OTHER INSTRUCTIONS FOR CODING BEING
3 OFFERED THAT I THOUGHT WERE DATED MAY, 1981, IN THE FORM OF
4 DB-43, I BELIEVE. I DIDN’T KNOW IF THESE WERE THE SAME OR
95 DIFFERENT. IF IT’S A DIFFERENT DOCUMENT. I HAVE NO OBJECTION.
é IF IT’S THE SAME DOCUMENT, I THINK IT WOULD BE CUMULATIVE.
EC 7 MR. FORD: IT IS A DIFFERENT DOCUMENT. IF THE COURT
8 WANTS ME TO CLARIFY THE MATTER NOW, I“M PERFECTLY WILLING TO DO
9 s0. I DON’T MEAN TO LEAVE ANYBODY IN SUSPENSE.
10 THE COURT: IT APPEARS TO BE A DIFFERENT DOCUMENT.
11 ILL ADMIT IT.
12 MR. FORD: THANK YOU, YOUR HONOR.
13 BY MR. FORD:
14 Wo. MR. GATES, JUST SO WE CAN KEEP THINGS CLEAR, CAN YOU TURN
135 TO THE DOCUMENT IN YOUR FILES THAT ARE IN YOUR NOTEBOOK.
146 NUMBERED EG NUMBER 357
17 Ae YES.
13 Gl. DO YOU RECOGNIZE WHAT THAT IS? IT ALSO. IT IS HEADED
® 19 "INSTRUCTIONS FOR CODING OF GEORGIA PAROLE BOARD QUESTIONNAIRE
20 DASH, MAY 1981," BUT DOES NOT HAVE THE BY EDWARD GATES AND DAVID
21 BALDUS IN THE NEXT LINE?
22 Ae. YES. THAT, THAT IS THE FINAL EMBODIMENT OF THE RULES THAT
23 THE CODERS FOLLOWED WHILE THEY WERE CODING THE CASES IN GEORGIA.
25 THE COURT: THAT WAS PREVIOUSLY ADMITTED AS 43. WAS IT
25 NOT?
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MR. FORD: IT WAS.» YOUR HONOR. DO I NEED TO LAY A
FOUNDATION ON THAT OR DOES COUNSEL ——
THE COURT: IF IT’S IN EVIDENCE, IT’S IN EVIDENCE, AND
WE WILL REFER TO IT BY THE NUMBER UNDER WHICH IT WAS ADMITTED,
WHICH IS DB-43, WHICH IS WHAT IT APPEARS TO BE.
BY MR. FORD:
@. CAN YOU CHECK DB-43, JUST SO WE KEEP THE RECORD ABSOLUTELY
CLEAR, MR. GATES? :
A. YES, THAT’S THE SAME DOCUMENT.
G. AND CAN YOU DESCRIBE WHAT DB-43 IS. AND JUST VERY GENERALLY
HOW IT DIFFERS. IF AT ALL, FROM EG NUMBER 4, TWO DIFFERENT SETS
OF INSTRUCTIONS?
A. YES. EG-4 IS THE SET OF INSTRUCTIONS THAT PROFESSOR BALDUS
AND 1 COMPLETED BEFORE GOING TO GEORGIA. ONCE IN GEORGIA. AND
ONCE THE TRAINING OF THE CODERS HAD BEGUN. IN THE EXTENSIVE
DISCUSSIONS THAT WE HAD ABOUT CODING, DIFFERENT ISSUES AROSE
THAT SEEMED TO BE UNCLEAR THAT, IN THE CODERS MINDS ABOUT CODING
THE DIFFERENT QUESTIONS.
IN SUCH CASE. WE WOULD ARTICULATE THE RULE FOR THE
CODERS, AND WHAT THEY HAD WAS THE ORIGINAL SET OF INSTRUCTIONS,
PLUS A QUESTIONNAIRE WITH THEM. THAT THEY CALLED THEIR WORKING
MASTER. | |
WHENEVER WE IN ANY WAY ADDED TO THE RULES IDENTIFIED BY
EG-4, THEY WOULD EITHER WRITE ON THAT DOCUMENT, EG-4, THE
AMENDMENT TO THE RULE, OR THEY WOULD WRITE IT DIRECTLY ON THEIR
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ps
MASTER COPY OF THE QUESTIONNAIRE.
NOW THIS PROCESS OF TRAINING AND AMENDING THE ORIGINAL
INSTRUCTIONS WENT ON WHILE PROFESSOR BALDUS WAS IN GEORGIA OVER
A PERIOD OF A WEEK. AND IT CONTINUED FOR A PERIOD OF TWO WEEKS
| IN THAT AS KATHY CHRISTIAN AND I DID EARLIER, I CALLED PROFESSOR
BALDUS ON A DAILY BASIS AT THE END OF THE DAY TO DESCRIBE TO HIM
ANY QUESTIONS THAT AROSE IN THE PROCESS OF CODING, AND THEN HE
WOULD RESOLVE THAT ISSUE.
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IF IT WAS NECESSARY TO EMBODY THE RESOLUTION OF THAT
PROBLEM INTO THE, INTO A RULE, AND PUT IT INTO THE INSTRUCTIONS
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11 THEN WHAT WE WOULD DO IS GO BACK AND I WOULD HAVE THE CODERS
12 EITHER WRITE INTO THEIR INSTRUCTION MANUAL OR MASTER. THE
13 AMENDMENT TO THE RULE.
14 Q. BUT IN THIS CASE, THEN, THOSE RULES AND RULE CHANGES OR
15 ADDITIONS OR AMENDMENTS WERE WRITTEN DOWN, AND SHARED AMONG THE
146 CODERS?
17 A THAT”S CORRECT.
18 (n 8 NOW, WHEN TO YOUR KNOWLEDGE WAS DB-43., WE REFER TO THAT AS
N 19 THE SUPPLEMENTED SET OF INSTRUCTIONS?
" 20 A. OKAY.
21 Qe AND WILL REFER TO EG-4 AS THE ORIGINAL SET OF INSTRUCTIONS.
22 ARE THOSE FAIR LABELS?
23 A. RIGHT.
24 Q. WHEN WAS THE SUPPLEMENTAL RECEIPT OF INSTRUCTIONS AS
235 REFLECTED AND COPIED IN DB-43 TO YOUR KNOWLEDGE. FINALLY
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WRITTEN?
A. TO MY KNOWLEDGE. IT WAS WRITTEN IN THE FALL OF, OF 19381.
Qe. HOW WAS THAT DONE?
A. WELL. IT WAS DONE AFTER, I BELIEVE IT WAS THE LAST WEEK IN
JUNE, WE DECIDED THAT THERE WOULD BE NO MORE AMENDMENTS TO THE
RULES OF THE QUESTIONNAIRES. BECAUSE WHAT WE WERE DOING. WHEN,
WHEN THERE WAS AN AMENDMENT THAT MIGHT AFFECT THE PRIOR CODING
| OF A QUESTIONNAIRE, THEN WE HAD TO GO BACK AND GO THROUGH ALL
THE QUESTIONNAIRES, AND RECODE A VARIABLE THAT MAY HAVE BEEN
AFFECTED BY THE AMENDMENT TO THE RULE.
AND SO WE SET THE LAST WEEK IN JUNE AS THE LAST DAY FOR
AMENDING THE INSTRUCTIONS TO THE TIME QUESTIONNAIRE.
WHAT I DID AFTER THAT IS COLLECT EVERYBODY”S MASTER
COPY, AND TAKE THE NOTES THAT I HAD FROM MY TELEPHONE
CONVERSATIONS WITH PROFESSOR BALDUS, AND I WROTE A NEW SET OF
INSTRUCTIONS THAT INCLUDED ALL OF THESE AMENDMENTS. ESSENTIALLY
I JUST CUT AND PASTED AND FILLED IN THE EXTRA ONES.
THEN I HELD ONTO THOSE. AND TOWARDS THE END OF THE
| SUMMER 1 PASSED THOSE PAPERS AROUND TO ALL OF THE CODERS AND
ASKED THEM TO COMMENT ON WHETHER OR NOT THAT, THOSE INSTRUCTIONS
EMBODIED THE RULES THAT THEY HAD FOLLOWED THROUGHOUT THE SUMMER.
AND I ASKED THEM TO ADD ANY RULES THAT THEY FELT WERE NOT CLEAR
OR WOULD BE HELPFUL TO SOMEONE TRYING TO INTERPRET THE
QUESTIONNAIRE LATER ON.
SO AFTER PASSING THESE AROUND TO ALL THE CODERS. AND
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1 THEN AFTER GETTING ALL THEIR COMMENTS. AND PASSING AROUND THEM
2 ALL AGAIN SO EACH CODER SAW THE OTHER ONE’S COMMENTS, WE HAD, WE
3 HAD A SET OF PAPERS THAT EMBODIED THE SET OF RULES THAT ALL THE
CODERS FOLLOWED FOR THE WHOLE SUMMER.
I HAD A TYPIST TYPE THOSE UP AND I SENT THEM TO
PROFESSOR BALDUS IN IOWA, AND THEN HE SUBSEQUENTLY WROTE THIS
FINAL DRAFT. | i
Q. DID YOU REVIEW THE FINAL DRAFT, AND WAS THERE A PERIOD OF
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MORE THAN ONE DRAFT BEING WRITTEN AND CIRCULATED AND FINALIZED
10 THAT SORT OF THING OR WAS IT JUST --
11 A. IT WAS UNNECESSARY. I REVIEWED THE FINAL DRAFT AND IT
12 CONFORMED TO THE CHANGES THAT WE HAD MADE. IT WAS SUBSTANTIALLY
13 THE SAME AS WHAT WE SENT.
14 Qe AND IN ADDITION TO BEING WRITTEN DOWN. ON EACH QUESTIONNAIRE,
1S | THE MASTER COPIES AND ON YOUR NOTES FROM TALKING TO PROFESSOR
146 BALDUS. WERE THOSE AMENDMENTS OR DIFFERENCES THAT ARE REFLECTED
17 IN THE SUPPLEMENTED INSTRUCTIONS, WERE THOSE ALSO DISCUSSED WITH
13 EACH AND EVERY ONE OF THE CODERS AT SOME POINT OR DURING THE
- 19 COURSE OF THE CODING PROCESS?
20 IN OTHER WORDS, WAS THE —--
21 A. THE ONLY, THE ONLY CHANGES OR ALL THE AMENDMENTS TO THE
22 INSTRUCTIONS WERE DISCUSSED WITH THE CODERS BEFORE BEING SENT
<3 OFF TO PROFESSOR BALDUS. AND IT WAS ALL TYPED UP.
24 AND WHAT HE DID IS JUST . STRUCTURALLY ORGANIZE THE
23 QUESTIONNAIRE. HE DIDN‘T MAKE ANY SUBSTANTIVE CHANGES IN THE
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RULES. I REVIEWED THAT, AND NONE OF THE CODERS EVER SAW THIS
STRUCTURAL REORGAMIZATION OF WHAT THEY DID.
Q. BUT WHEN YOU DESCRIBED STUDY NUMBER 1 BETWEEN YOURSELF AND
MISS CHRISTIAN, YOU DESCRIBED A PROCESS OF DISCUSSING
AMBIGUITIES. OR CLARIFICATIONS OR PERHAPS CHANGES.
HERE YOU’VE DISCUSSED A PROCESS OF WRITING THEM DOWN.
JUST TO MAKE IT CLEAR, WAS THERE ALSO DISCUSSION WITH
EACH AND EVERY ONE OF THE CODERS OF THOSE CLARIFICATIONS AS THEY
WERE MADE?
A. OH. YES. THAT WAS JUST, THAT WAS ON A DAILY BASIS.
THE CODERS WERE ALWAYS THERE. I CALLED PROFESSOR
BALDUS ROUTINELY BETWEEN FOUR AND FIVE O“CLOCK, AND AS SOON AS I
WAS DONE WITH THE CONVERSATION, THEY WERE EAGER, THEY HAD THE
QUESTIONNAIRES RIGHT IN FRONT OF THEM THEY WANTED TO MAKE ANY
CHANGES NECESSARY OR COMPLETE THEM BASED ON THE WAY THAT
PROFESSOR BALDUS RESOLVED WHATEVER PROBLEMS THAT WE HAD.
Qe NOW, WAS YOUR FOLE, WE‘RE JUMPING AHEAD A LITTLE BIT. BUT
PERHAPS TO CLARIFY THIS PARTICULAR MATTER, WAS YOUR ROLE IN THE
CODING PROCESS IN STUDY NUMBER 2, WERE YOU A CODER OR DID YOU
HAVE A DIFFERENT JOB?
A. NO, I WAS NOT A CODER IN STUDY NUMBER 2. MY PRIMARY
RESPONSIBILITY WAS TO SUPERVISE THE COLLECTION OF THE DATA, AND
DO WHATEVER I COULD TO INSURE THAT THE CODING WAS CONSISTENT
BETWEEN THE CODER AND CONSISTENT WITH THE INSTRUCTIONS.
QR. AND DID YOU IN THE COURSE OF DOING THAT HAVE OCCASION TO
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READ AND REVIEW THE QUESTIONNAIRES THAT WERE DONE BY THE PEOPLE
WHO WERE DOING THE ACTUAL CODING?
A. YES, EXTENSIVELY. THAT CONSUMED AT LEAST FIFTY HOURS A
WEEK OF MY TIME WHILE I WAS IN GEORGIA.
QR. WILL YOU DESCRIBE TO THE COURT HOW MANY OF THOSE
QUESTIONNAIRES YOU ACTUALLY READ YOURSELF?
A. YES.
YOUR HONOR. FOR THE FIRST ONE HUNDRED CASES THAT THE
CODERS CODED, 1 READ THE FULL FILE AT THE DEPARTMENT OF PARDONS
AND PAROLES AND THEN REVIEWED THEIR CODING, BASED ON MY REVIEW
OF THE FILE.
AND THEN WHERE I FELT THERE WERE PROBLEMS WITH THE
CODING. I WOULD DISCUSS THOSE WITH. WITH EACH INDIVIDUAL CODER.
AND DISCUSS ANY MAJOR PROBLEMS OR INCONSISTENCIES, OR THINGS
THAT WOULD ILLUSTRATE A GOOD WAY TO CODE OR THE RIGHT WAY TO
CODE A QUESTIONNAIRE WITH THE GROUP.
AS PROFESSOR BALDUS DESCRIBED THE SITUATION WAS SET UP
LIKE THIS COURTROOM, WHERE THERE WAS A LARGE DESK LIKE THIS
WHERE ALL THE CODERS SAT AT.» AND I SAT RIGHT DOWN BELOW. SO I
WAS REVIEWING FILES ALL THE TIME AND CONTINUALLY HAVING
CONVERSATIONS WITH EACH OF THE CODERS ABOUT THEIR CODING AND
THEN BRINGING UP THE, IF SOMEONE MADE A SLOPPY ERROR OR
SOMETHING LIKE THAT, OR THEY DIDN-T RECORD SOMEONE’S AGE
PROPERLY. THAT’S NOT THE SORT OF THING I WOULD INSIST ON
DISCUSSING WITH ALL THE CODERS.
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8. WHAT WOULD YOU DO IF YOU FOUND A SLOPPY ERROR? WELL, LET'S
DISTINGUISH IN TIME JUST TO GET AN IDEA HOW MANY QUESTIONNAIRES
YOU READ.
YOU CHECKED ALL THE FIRST HUNDRED AGAINST THE PAROLE
BOARD FILE ITSELF, IS THAT RIGHT?
A. THAT’S CORRECT.
Q. DID YOU CHECK ANY AFTER THE FIRST HUNDRED?
A. YES. THEN FOR A WEEK AND A HALF AFTER THAT, BY THAT TIME,
THE CODING WAS DEVELOPING A REAL SENSE OF CONSISTENCY. AND FOR
A WEEK AND A HALF OR SO. AFTER THAT, I REVIEWED TWO FILES A DAY
OF EACH CODER.
NOW THE PROCEDURE FOR ME REVIEWING —-
a. EXCUSE ME MR. GATES, CAN YOU EXPLAIN ABOUT HOW MANY CASES
WOULD BE DONE BY EACH CODER EACH DAY? ABOUT HOW MANY FILES?
A. DURING THAT PERIOD IT WAS BETWEEN TWO AND FOUR, DEPENDING
ON THE COMPLEXITY OF THE CASE.
@. THANK YOU. SORRY.
A. I JUST WANTED TO MAKE CLEAR THAT THE PROCEDURE THAT I
FOLLOWED FOR REVIEWING THESE FILES WAS DEVELOPED BY PROFESSOR
WOODWORTH. AND WHAT HE INSTRUCTED ME TO DO WAS TO CHECK OVER A
CODER’S FILE. THIS IS AFTER THE TIME WHEN I THOUGHT THEY WERE
CODING CONSISTENTLY. AND IF I FOUND ONE SUBSTANTIVE ERROR IN
THE CODING OF THEIR CASE, THEN THAT CODER WAS REQUIRED AT THE
END OF THE DAY TO GO BACK AND REVIEW ALL THE CASES THEY HAD
CODED FOR THAT DAY, QUESTION BY QUESTION, TO GO THROUGH AND MAKE |
403
GATES =~ DIRECT
| SURE THEY DIDN‘T MAKE ANY OTHER MISTAKES. ot
2 Q. SO, AFTER THE FIRST HUNDRED, YOU REVIEWED ABCUT TWO FOR
3 EACH CODER A DAY. ABOUT HALF OF WHAT THEY WERE DOING A DAY AT
4 THAT TIME, AND THEN DID THAT CONTINUE ALL THE WAY THROUGH. OR
be WHAT?
& Ae. THEN, THEN FOR THE REST OF THE SUMMER OR FOR MOST OF THE
% / j REST OF THE SUMMER, 1 REVIEWED ONE CASE A DAY FOR EACH CODER.
8 AND ON DIFFERENT DAYS. I FOCUSED ON DIFFERENT THINGS. AND I
9 WOULD PRETTY MUCH ALTERNATE.
10 ON HALF THE DAYS, I WOULD REVIEW THE WHOLE PAROLE BOARD
11 FILE, AND THEN REVIEW THEIR CODING BASED ON MY UNDERSTANDING OF
12 THE FILE. AND THE EMPHASIS THERE WAS NOT ONLY HOW WELL THEY DID, | HOW
13 WILL WERE THEY CODING IN TERMS OF BEING CONSISTENT WITH THE
14 INSTRUCTIONS AND 30 FORTH. BUT ALSO I WAS BEING CRITICAL OF WERE
15 THEY READING THE FILES, WERE THEY EXTRACTING THE INFORMATION
16 THEY WERE SUPPOSED BE TO BE EXTRACTING FROM THE FILES.
17 ON THE ALTERNATIVE DAYS, I WOULD ONLY READ THEIR
18 SUMMARY, AND THEN I WOULD DO WHAT I CALLED AN INTERNAL
= 19 CONSISTENCY CHECK, AND I WOULD SEE IF THE CODING OF THE
20 VARIABLES IN THE FILE CONFORMED TO THE SUMMARY OF THE CASE.
21 Ge. AND WHEN YOU MADE THOSE REVIEWS AND YOU MADE THE
22 DETERMINATIONS OF THEY DID CONFORM OR WERE CONSISTENT WITH THE
23 PAROLE BOARD, WERE THESE INSTRUCTIONS OR THE, THE RULES
24 REFLECTED BY THE SUPPLEMENTED INSTRUCTIONS, WERE THOSE WHAT YOU
23 FOLLOWED?
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A. YES.
a. AT THAT TIME?
A. YES, THAT’S CORRECT.
Q. DID YOU DO ANYTHING ELSE IN REVIEWING THE ACTUAL WORK AND
ACTUAL FILLING OUT OF THE QUESTIONNAIRES BY THE INDIVIDUAL
CODERS OTHER THAN THESE ALTERNATE CHECKINGS OF EXTERNAL,
INTERNAL. DAY BY DAY THROUGH THE REST OF THE SUMMER?
A. YES.
TWO TIMES DURING THE SUMMER, I DID SPOT CHECKS, THAT
IS, WITHOUT TELLING THE CODERS, 1 MADE SURE OVER THE COURSE OF
TWO DAYS. EACH ONE OF THEM GOT THE SAME FILE. SO THAT WE JUMPED
AHEAD OF THE TRAINING PERIOD, BUT ESSENTIALLY I DID WHAT WE DID
DURING THE TRAINING PERIOD WHEN PROFESSOR BALDUS WAS THERE. AND
THAT IS, TO HAVE EACH CODER CODE THE SAME FILE. AND THEN I WOULD
READ THE FILE AND THEN I WOULD COMPARE THE CODING OF THE CODERS.
AND AFTER THAT, WE WOULD HAVE A DISCUSSION THAT WOULD LAST FOUR
OR FIVE HOURS WHERE WE WOULD GO QUESTION BY QUESTION THROUGHOUT
THE QUESTIONNAIRE TO DISCUSS THE CODING OF EVERY VARIABLE. AND
THE PURPOSE WAS TWOFOLD. ONE WAS AS A MATTER OF CENERAL REVIEW
OF THE INSTRUCTIONS, BECAUSE WE FELT THAT AFTER A MONTH OR SO OF
CODING, PEOPLE MIGHT BE GETTING SLOPPY AND NOT REFERRING BACK TO |
THE INSTRUCTIONS SO WE WANTED TO REFRESH, WE WANTED TO MAKE SURE
THAT THOSE INSTRUCTIONS EMBODIED IN THE SUPPLEMENTAL CODING
INSTRUCTIONS WAS FRESH AND FIRM IN THEIR MIND.
AND THEN THE OTHER FOCUS WAS WHERE THERE WERE CODING
403
GATES - DIRECT
INCONSISTENCIES, TO DISCUSS THEM AND —— Pr
y
Qo. WERE THERE SOME INCONSISTENCIES?
A. YEAH, THERE WERE SOME.
Q. WHAT, IN TERMS OF PERCENTAGE, NUMBERS. CAN YOU RECALL?
A. YEAH. THEY’RE IN THE FIRST INCONSISTENCY CHECK, I MEAN THE
SPOT CHECK THAT I DID, THERE WERE ABOUT 40 INCONSISTENCIES. AND
IN THE SECOND ONE, THERE WERE ABOUT SIXTY.
NOW THIS IS, THERES FIVE HUNDRED SEVENTY SOME-QDD
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PLACES WHERE YOU CAN ENTER AN ANSWER IN THIS QUESTIONNAIRE. AND
10 THEN THERE WERE SIX PEOPLE CODING CASES.
11 Q. S0 THAT'S OUT OF THREE THOUSAND PLUS?
12 A. THREE THOUSAND POSSIBILITIES, AND THERE WERE ONLY ABOUT
13 FORTY PLACES WHERE THERE WERE INCONSISTENCIES.
14 Q. AND WERE THESE MAJOR THINGS LIKE RACE OF THE VICTIM OR
15 WHETHER THE DEFENDANT WAS A TRIGGER MAN OR SOMETHING LIKE THAT?
146 A. NO. THEY WERE, THEY WERE MOSTLY SLOPPY ERRORS LIKE SOMEONE
17 RECORDED THE AGE OF THE DEFENDANT WRONG. YOU KNOW. IT WAS 27
13 YEARS INSTEAD OF 30 YEARS: OR WITH RESPECT TO THE OCCUPATIONAL
® 19 SKILL OF THE DEFENDANT, PEOPLE IN THIS, THIS OCCURRED NOT
20 INFREQUENTLY, HAD TROUBLE DISTINGUISHING BETWEEN WHAT WAS
21 | UNSKILLED AND WHAT WAS SKILLED LABOR, SOMETHING LIKE THAT.
22 @. IN TERMS OF YOUR DAILY CHECKS, INTERNAL AND EXTERNAL.
<3 THROUGH THE SUMMER. DID YOU FIND ERRORS IN THOSE WHERE THE
z45 PERSON WOULD HAVE TO GO BACK AND REDO ALL THEIR FILES FOR THE
23 DAY? WAS THAT A FREGUENT OCCURRENCE?
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406
GATES - DIRECT
A. MORE OFTEN THAN NOT I WOULD, LET ME RESTATE THAT.
AS I RECALL, IT WAS ABOUT FIFTY PERCENT OF THE TIME I
WOULD FIND ONE, WHAT I CONSIDERED SUBSTANTIAL ERROR.
Re AND WHAT WOULD YOU CONSIDER SUBSTANTIAL? SAME KIND OF
THING YOU WERE TALKING ABOUT. AGE OF THE DEFENDANT OR THAT KIND
OF THING?
A. I KNEW THAT THE STUDY WAS FOCUSING ON. YOU KNOW, IMPORTANT
FACTORS, AGGRAVATING FACTORS, MITIGATING FACTORS, AND I WOULD
CONSIDER IT IMPORTANT IF A CODER. IF THERE WERE SEVERAL
AGGRAVATING FEATURES OF THE CRIME AND THE CODER NEGLECTED TO
CODE ONE OF THOSE.
Gl. NEGLECTED TO CODE EVEN ONE?
A. EVEN ONE. I MEAN EVEN IF THERE WERE EIGHT AGGRAVATING
FEATURES, AND THE CODER DIDN‘T CODE ONE OF THEM. THAT WAS ENOUGH
TO MAKE THE CODER GO BACK AND CHECK EVERY SINGLE CASE THEY CODED
THAT DAY.
Re REGARDING THESE KINDS OF ERRORS, WITHOUT JUMPING TOO FAR
AHEAD ON THESE INSTRUCTIONS, IS THERE SOMEWHAT MORE PRECISION,
IS IT FAIR TO SAY SOMEWHAT MORE PRECISION IN THE INSTRUCTIONS
AND DEFINITIONS OF THESE FACTORS AND VARIABLES IN STUDY NUMBER 1
RATHER THAN IN STUDY NUMBER 27
A. THE STUDY NUMBER 2 IS MUCH MORE PRECISE, MUCH MORE
WELL-DEFINED AND THE RUESTIONNAIRE IS MUCH BETTER DESIGNED THE
CAPTURE ALL THE INFORMATION THAT“S IN THE FILES.
LET ME SAY ONE OTHER THING ABOUT THE PROCESS OF
|
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4Q7
GATES - DIRECT
CHECKING THE CODING.
ON SEVERAL OCCASIONS: I WOULD FIND NO INCONSISTENCIES
OR PROBLEMS IN ANY OF THE CASES OF ANY OF THE CODERS FOR THAT
DAY. WHEN THAT OCCURRED I DID NOT CHECK THEIR FILES THE NEXT
DAY.
Q. DO YOU REMEMBER HOW MANY?
A. 1 DON’T RECALL OFFHAND., BUT THERE WERE PROBABLY FIVE OR SIX
DAYS WHEN NOBODY MADE A SINGLE ERROR.
Ge FOUR QUESTIONNAIRES A DAY UP TO THAT POINT BY SIX PEOPLE IS
24 QUESTIONNAIRES.
A WE CAUGHT IT ON THE AVERAGE OF TWENTY.
Qe. TWENTY PER DAY, SOMEWHERE AROUND FIVE HUNDRED VARIABLES.
OVER TEN THOUSAND VARIABLES. NOT A SINGLE ERROR?
A. NOT A SINGLE SUBSTANTIAL ERROR. THERE WERE SLOPPY ERRORS.
LIKE THE AGE: THAT KIND OF THING.
Qe. NOTHING THAT WOULD HAVE ANYTHING TO DO WITH THE STUDY?
A. NO.
a. AN THAT’S ERRORS AS DEFINED BY THESE INSTRUCTIONS. DB
NUMBER 437?
Ae THAT'S CORRECT.
MR. FORD: YOUR HONOR, AT THIS TIME I WOULD OFFER DB
NUMBER 43, WHICH I UNDERSTAND WAS ADMITTED FOR A LIMITED PURPOSE
PREVIOUSLY INTO EVIDENCE FOR THE PURPOSE OF ACCURATELY
REFLECTING THE INSTRUCTIONS THAT WERE COMMUNICATED ORALLY AND IN
WRITING TO THE CODERS. AND FOLLOWED BY THOSE INDIVIDUALS TO THE
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408
GATES - DIRECT
EXTENT THATS BEEN TESTIFIED TO BY MR. GATES THROUGHOUT THE
SUMMER, CONSISTENTLY, IN STUDY NUMBER 1 -- NUMBER 2, THE GEORGIA
CHARGING AND SENTENCING STUDY.
MS. WESTMORELAND: YOUR HONOR, I BELIEVE THE ORIGINAL
LIMITATION WAS THE FACT THAT THIS DOCUMENT WAS MADE UP AT THE
COMPLETION OF THE CODING OF THESE QUESTIONNAIRES AND AS SUCH,
THIS DOCUMENT COULD NOT HAVE BEEN PRESENTED TO THE INDIVIDUAL
PEOPLE CODING THE QUESTIONNAIRES. I BELIEVE THAT WAS THE
LIMITATION MADE, AND IT WAS ADMITTED SUBJECT TO THE PROVISION
THAT THESE WERE THE RULES THAT PROFESSOR BALDUS THOUGHT THEY HAD
BEEN PRESENTED WITH OVER THE SUMMER. AND I THINK THAT
LIMITATION SHOULD STILL APPLY TO SOME EXTENT IN THAT THIS
DOCUMENT WAS NEVER PRESENTED TO THE CODERS AS SUCH.
TO THE EXTENT THAT PERHAPS THE WITNESS COULD TESTIFY AS
TO WHAT PARTS OF IT MAY HAVE BEEN PRESENTED AT VARIOUS STAGES.
THEN IT MIGHT BE MORE RELEVANT, I WOULD SUPPOSE. BUT I WOULD
STILL LIKE SOME LIMITATION OR FURTHER EXPLANATION ON THE
DOCUMENT BEFORE THE LIMITATION IS REMOVED FROM THE ADMISSIBILITY
OF THE DOCUMENT.
MR. FORD: YOUR HONOR. I THINK THERE IS DIRECT
TESTIMONIAL INFORMATION BASED ON PERSONAL KNOWLEDGE TO THE
COURT AS TO THE CONTENTS OF THIS DOCUMENT THROUGHOUT WERE
COMMUNICATED TO THESE INDIVIDUALS AND FOLLOWED BY THEM, BASED ON
THE PERSONAL OBSERVATIONS OF THIS WITNESS. I DON’T BELIEVE
THERE“S ANY BASIS FOR LIMITATION AT THIS POINT. I“M NOT
409
GATES - DIRECT
Tw
OFFERING THIS AS A DOCUMENT THAT WAS SHOWN TO THESE PEOPLE. BUT
2 A DOCUMENT THAT REFLECTS WHAT WAS TOLD THEM, WHAT WAS WRITTEN
3 DOWN AND GIVEN THEM DURING THIS SUMMER IN DIFFERENT STAGES. AND
4 WHAT WAS FOLLOWED BY THEM, ACCORDING TO MR. GATES‘ PERSONAL
S KNOWLEDGE.
6 THE COURT: IT DOESN‘T PROVE THAT THEY FOLLOWED IT. IT
» 7 DOESN” T PROVE THAT THEY WERE INSTRUCTED IN THIS FASHION.
8 IT MAY, I THINK IT’S NEAREST KINSHIP TO AN ADMISSIBLE
4 APPROACH WOULD BE A PAST RECOLLECTION RECORDED IN THAT IT MAY
10 RECORD THIS WITNESS” RECOLLECTION OF WHAT WAS COMMUNICATED TO
13 THE WITNESSES.
12 I WOULD, I“LL ALLOW IT ALONG THOSE LINES.
13 MR. FORD: IN OTHER WORDS, IF I UNDERSTAND YOUR HONOR
14 CORRECTLY, AND FRANKLY I AM TRYING TO SAVE THE COURT SOME TIME,
15 RATHER THAN START WITH MR. GATES AT LINE ONE AND ASK HIM IF EACH
146 AND EVERY ONE OF THOSE FACTS STATED WAS COMMUNICATED. HE HAS
17 TESTIFIED THAT THIS IS HIS BEST RECOLLECTION THAT EACH AND
18 EVERY ONE WAS COMMUNICATED AND EACH AND EVERY ONE WAS FOLLOWED.
" 19 AND THE COURT IS ADMITTING IT FOR THE PURPOSE OF ACCURATELY
20 REFLECTING HIS RECOLLECTION IN THAT REGARD?
21 THE COURT: THAT IT WAS FOLLOWED I THINK IS ENTIRELY
22 ANOTHER MATTER. AND NO SUCH DOCUMENT AS THIS COULD DEMONSTRATE
23 THAT FACT, IN MY OPINION.
. 24 IT IS HEARSAY. LET’S START OUT WITH WHAT IT IS. IT IS
<3 HEARSAY.
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410
GATES ~ DIRECT
IT IS AN OUT-OF-COURT STATEMENT PREPARED AND OFFERED TO
PROVE THE TRUTH OF THE MATTERS ASSERTED THEREIN. THEREFORE IT”S
NOT ADMISSIBLE. ;
LETS THINK A LITTLE BIT ABOUT WHY IT MIGHT BE
ADMISSIBLE. AND LET”S THINK ABOUT WHAT YOURE TRYING TO PROVE
WITH IT.
ONE THING THAT YOU WOULD BE WANTING TO PROVE WITH IT, I
THINK, IS THAT LIKE AN APPENDIX TO A STUDY, THIS IS WHAT THE
AUTHORS OF THE STUDY BELIEVED WAS CONTROLLING IN CODING.
SOMETHING THAT SOMEBODY MIGHT WANT TO KNOW ABOUT THE
METHODOLOGY. WELL I THINK THIS SHOWS SOMETHING ABOUT THE
METHODOLOGY THAT THE STUDY CREATORS BELIEVED WERE EMPLOYED. AND
TO THAT EXTENT, YOU KNOW, IT’S PART AND PARCEL OF THE STUDY,
THEIR BUSINESS. WHATEVER YOU WANT TO CALL IT.
IT DOES NOT PROVE THAT THESE INSTRUCTIONS, THAT THIS
DOCUMENT DOES NOT PROVE WHAT WAS TOLD TQ THE PEOPLE. AND IT DOES
NOT PROVE THAT THEY FOLLOWED THEM.
NOW TO THE EXTENT THAT IT IS A SUMMARY WHICH SAVES
TIME, WHICH I UNDERSTAND THE WITNESS” TESTIMONY TO BE THAT THIS
IS ESSENTIALLY WHAT HE REMEMBERS BEING TOLD IN WRITING. OR
VERBALLY TO THE FOLK, AND THIS IS WHAT HE WAS FOLLOWING WHEN HE
WAS CHECKING FOR ERRORS. IF THAT'S WHAT YOU ARE TRYING TO GET IT
IN FOR, I“LL ALLOW IT SUBJECT TO CROSS-EXAMINATION.
BUT I DON’T WANT THERE TO BE ANY MISUNDERSTANDING ABOUT
THE FACT THAT @ BELIEVE THAT THIS PROVES THAT IT WAS FOLLOWED.
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GATES - DIRECT
I DON‘T. AND WOULDN‘T RECEIVE IT FOR THAT PURPOSE.
I DON’T BELIEVE THAT THIS PROVES THAT THIS WAS GIVEN,
THAT THIS OR ANYTHING CLOSE TO THIS, IN THIS FORM, WAS GIVEN TO
THE FOLK. BECAUSE IT WASN‘T. IF YOU WANT TO INTRODUCE IT AS A
QUICK SUMMARY OF THE WITNESS” TESTIMONY ON THE SUBJECT, THAT'S
FINE.
I REALIZE WHAT I“M DOING IS FUDGING ON THE RULES OF
EVIDENCE. IT“S NOT ADMISSIBLE, BUT LET’S START THERE. BUT IF
YOU WENT THROUGH THE PROPER FOUNDATION, YOU COULD PROBABLY LAY A
FOUNDATION FOR PAST RECOLLECTION RECORDED. WHICH IS ESSENTIALLY
WHAT THIS IS. IT“S NOT IN ITS PUREST FORM BECAUSE HE DIDNT
PREPARE IT. OR HE DIDN‘T PREPARE IT CONTEMPORANEOUSLY. BUT
THATS ABOUT WHAT IT IS. HE CAN VALIDATE THIS AS BEING THAT, SO
WELL JUST MOVE ALONG, WITH THAT.
YOU LOOKED PERPLEXED.
MR. FORD: I DO LOOK PERPLEXED, YOU HONOR. I THINK
THIS IS A VERY IMPORTANT POINT. I THINK THERE WAS ENORMOUS EFFORT
PUT INTO ESTABLISHING A FACT WHICH I DON’T BELIEVE THAT THE
COURT’S RULING PERMITS TO BE ESTABLISHED BY THIS DOCUMENT.
I DO NOT WISH TO WASTE THE COURT’S TIME. I THINK THAT
MR. GATES HAS PERSONAL OBSERVATIONS OF THE FACT OF FOLLOWING
THESE RULES. THAT 1S, AND PERSONAL OBSERVATION OF THE FACT OF
THESE RULES BEING COMMUNICATED., AND LATER OBSERVATIONS OF THEM
BEING FOLLOWED AT THE 98 TO 99 PERCENT LEVEL, THAT IS A CRITICAL
FACT DISTINGUISHING THIS STUDY AS MANY OTHER THINGS DO FROM EVEN
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412
GATES - DIRECT
THE BEST SOCIAL SCIENCE RESEARCH. AND IS SOMETHING THAT I THINK
I WOULD FEEL REMISS IN NOT GETTING INTO THIS RECORD. AND
PERHAPS MY FOUNDATION IS NOT COMPLETE, PERHAPS THE COURT IS
INCLINED TOWARD A RECESS, 1 KNOW MY BACK IS GETTING TIRED, I
KNOW WE“VE BEEN HERE A LITTLE WHILE, IF I COULD HAVE A FEW
MOMENTS. AND CONSULT, AND SEE IF I CAN LAY A LITTLE BETTER
FOUNDATION, I WOULD LIKE ANOTHER OPPORTUNITY.
THE COURT: IF WE COULD PIGEON HOLE WHAT IT IS YOU'RE
TRYING TO ESTABLISH WITH THIS. IT WOULD BE OF SOME HELP.
MR. FORD: 1 THINK WHAT I“M TRYING TO DO, YOUR HONOR,
IS SAVE THE COURT’S TIME AND EXPENSE OF BRINGING EACH AND EVERY
ONE OF THESE INDIVIDUALS IN AND SAYING, YES, THIS IS WHAT I
UNDERSTOOD AND THIS IS WHAT I DID, EACH AND EVERY TIME, I THINK
WE“VE GOT A VERY SUBSTANTIAL BASIS, BASED ON PERSONAL
OBSERVATION THAT THAT OCCURRED.
I AGREE THAT THIS IS A VERY SUMMARY FORM. IN THAT MR.
GATES. PERHAPS UNDER THE STRICT RULES OF EVIDENCE, SHOULD IN
RESPONSE TO A QUESTION BY ME OF WHAT WAS FOLLOWED START AT LINE
ONE AND READ THROUGH PAGE 33, IF THATS HIS TRUTHFUL TESTIMONY
WHICH I UNDRSTAND IT TO BE 23, I’M SORRY, BUT 1 DO BELIEVE
THE FACT HE PERSONALLY OBSERVED THAT BEING FOLLOWED AND
BEING COMMUNICATED IS SOMETHING THAT HAS SOME SIGNIFICANT IMPACT
ON THE WEIGHT TO BE GIVEN THIS STUDY AND I THINK IT’S A
DISTINGUISHING FEATURE OF THIS STUDY.
BUT I MAY HAVE JUST STUMBLED IN LAYING MY FOUNDATION.
413
GATES - DIRECT
THE COURT: I DON’T THINK I“M CLEAR, AND I“M NOT SURE
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< WHETHER MS. WESTMORELAND’S CLEAR FOR WHAT PURPOSE YOU'RE
3 OFFERING IT, AND UNDER WHAT RULE OF EVIDENCE YOQU’RE OFFERING IT,
4 SO I‘LL BREAK FOR TEN MINUTES, AND LET YOU PONDER THAT. WHILE
3S THE REST OF US STRETCH.
6 MR. FORD: THANK YOU. VERY MUCH, YOUR HONOR.
% 7 THE COURT: ALL RIGHT.
8 ri -
by (RECESS TAKEN.)
10 THE COURT: ALL RIGHT, MR. FORD.
11 MR. FORD: YOUR HONOR, I HAVE DONE SOME RESEARCH AND
12 SOME CONSULTATION WITH MY COLLEAGUES. AND I THINK. I HAVE
13 CONCLUDED THE COURT’S CORRECT AND IF POSSIBLE, I WOULD LIKE TO
14 LAY A LITTLE BIT MORE FOUNDATION. AND PERHAPS IDENTIFY THE
135 PURPOSE FOR WHICH I’M PRECISELY OFFERING THIS DOCUMENT.
16 THE COURT: ALL RIGHT.
17 -
18 EDWARD RAYMOND GATES.
rs 19 | BEING PREVIOUSLY DULY SWORN. RESUMED THE WITNESS STAND AND
20 TESTIFIED FURTHER AS FOLLOWS:
21 DIRECT EXAMINATION (CONT-D)
22 BY MR. FORD:
23 Re MR. GATES. CALLING YOUR ATTENTION ONCE AGAIN TO EXHIBIT
24 DB-43, HAVE YOU HAD OCCASION TO READ THAT OVER THE LAST FEW
<3 DAYS?
414
GATES - DIRECT
1 A. YES, I REVIEWED IT VERY CAREFULLY LAST NIGHT.
2 a. HAD YOU SEEN IT BEFORE LAST NIGHT?
3 A. YES. I HAVE.
4 a. WHEN WAS THAT?
S A. I HAVE SEEN IT TWO OR THREE TIMES OVER THE PAST TWO YEARS.
& Q. AND YOU WROTE IT. SUBSTANTIAL PORTIONS OF IT, ALL OF IT,
® 7 HOW MUCH?
8 A. 1 PARTICIPATED IN WRITING SUBSTANTIAL PORTIONS OF IT.
9 a. HOW MUCH OF IT IS ACTUALLY YOUR WORDS OR WORDS THAT YOU
10 WROTE DOWN OR INCLUDED IN YOUR EDITED DRAFT?
11 A. CAN I DO THIS BY PAGE?
12 Xe. YES.
13 THE COURT: LET ME INTERRUPT YOU.
14 EVEN IF HE PREPARED IT, IT’S STILL HEARSAY.
15 MR. FORD: I UNDERSTAND THAT. YOUR HONOR. BUT WHERE
16 IM GOING IS THE DIRECTION THAT THE COURT HAD INDICATED.
17 ALTHOUGH IT IS SOMEWHAT DIFFERENT THAN THE ORDINARY RULE OF PAST
18 RECOLLECTION RECORDED, IT DOES SEEM TO ME, AND THERE PERHAPS MAY
é 1? BE A FOUNDATION IN THAT REGARD, GIVEN THE LAPSE OF TIME HERE. 20 REGARDING SOME OF THE PRECISION AND DETAIL IN THIS.
21 THE COURT: I TOLD YOU I WOULD LET IT IN AS A SUMMARY
22 OF HIS TESTIMONY AS TO WHAT RULES HE BELIEVES WERE COMMUNICATED
23 TO THE CODERS.
24 AND, AS A SUMMARY OF HIS TESTIMONY AS TO WHAT RULE HE
23 BELIEVES. BASED ON THAN THE OBSERVATIONS HE HAS TESTIFIED ABOUT.
415
GATES - DIRECT
WERE FOLLOWED BY THE CODERS. AND I WILL DO THAT UNDER MY
Py
GENERAL AUTHORITY TO ADMIT IT.
BUT THE PURPOSE FOR WHICH YOU OFFERED IT WAS TO
DEMONSTRATE THAT THESE RULES, THAT THIS WAS GIVEN, THESE RULES
WERE GIVEN AND UNDERSTOOD AND APPLIED. FROM THIS TESTIMONY, I
MIGHT INFER THAT, IT’S CIRCUMSTANTIAL EVIDENCE OF THAT. BUT IT
DOES NOT CONCLUSIVELY ESTABLISH THAT.
MR. FORD: I THINK I HAVE PREVIOUSLY MISUNDERSTOOD
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COURTS RULINGS, BECAUSE I THINK THE COURT HAS SIMPLY MORE
10 PRECISELY DEFINED THE PURPOSE FOR WHICH I WAS OFFERING THIS
11 DOCUMENT, AND I ACCEPT THAT. THAT IS THE PURPOSE THAT I WAS
12 OFFERING IT FOR. I GUESS 1 DON’T NEED TO GO ANY FARTHER AT THAT
13 POINT.
14 THE COURT: ALL RIGHT.
135 MR. FORD: I WOULD LIKE TO ASK WITH REGARD TO THIS. AND
16 THERE IS SOME CONCERN, WE DON’T HAVE THOSE OTHER FIVE PEOPLE
17 HERE.
13 AS I UNDERSTAND IT THROUGH THE DISCOVERY, AND THE
19 | REASON FOR THAT. AND OTHER THAN THE EXPENSE AND REDUNDANCY OF
20 DOING THAT, IS THAT TO THIS DATE, DESPITE NUMEROUS DISCOVERY
21 EXCHANGES, NO OBJECTION HAS BEEN NOTED TO MY UNDERSTANDING THAT |
22 WOULD RELATE TO ANY QUESTION OF WHETHER OR NOT THESE INDIVIDUALS
23 FOLLOWED DIFFERENT SETS OF RULES, AND IT WOULD NECESSITATE THEIR
24 COMING TO TESTIFY THAT YES. INDEED. THROUGH THEIR WORK THIS IS
23 WHAT THEY WERE TOLD AND THIS IS WHAT THEY UNDERSTOOD.
416
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AND PERHAPS. I DON’T KNOW IF WE GET INTO IT ON
CROSS-EXAMINATION BUT I CERTAINLY DON’T WANT TO BE IN A
SITUATION WHERE THAT ISSUE IS RAISED LATER AND WE’RE CAUGHT WITH
PEOPLE FINISHING THEIR LAW DEGREES OR PRACTICING LAW, WHEREVER
THEY ARE RIGHT NOW, WHO CAN‘T BE HERE, AND WHO THE COURT
PRACTICALLY, I DON’T THINK, WANTS TO HEAR FROM EACH AND EVERY
ONE OF THEM. IF THE STATE HAS ANY OBJECTION IN THAT REGARD.
THE COURT: I DON’T KNOW, YOU KNOW. YOU ARE OBVIOUSLY
SHADOWBOXING A LITTLE BIT, EVEN WITH ISSUES THAT I DON’T
APPRECIATE. BECAUSE I DON’T KNOW WHAT’S IN YOUR MIND.
BUT GENERALLY SPEAKING, I THINK THAT BEYOND
DEMONSTRATING SOME MENTAL, OR SOME MINIMAL DEFERENCE TO GOOD
SCHOLARSHIP AND RESEARCH TECHNIQUES. YOUR OBLIGATION AT THIS
POINT IS TO PROVE THE ALLEGATIONS IN THE PETITION.
IT IS THEN THE STATEZS BURDEN TO SHOW ME WHY I SHOULD
NOT RELY ON YOUR RESEARCH. AND IF THEY CREATE THE ISSUE. THEN I
WILL GIVE YOU AN OPPORTUNITY TO REBUT WHAT THEY HAVE SAID.
I DON’T KNOW THAT WE NEED TO GO INTO QUITE THE DETAIL
WE HAVE GONE INTO ALREADY, AND I AM QUITE SURE THAT YOU“RE NOT
OBLIGED TO ESTABLISH A PRIMA FACIE CASE TO HAVE THOSE FIVE FOLK
HERE.
YOU HAVE, I THINK, BY HIS TESTIMONY SHOWN SOME CONCERN
WITH PRECISION. BEYOND THAT, I THINK THIS IS A WASTE OF TIME AT
THIS POINT. TO BEAT THAT HORSE. AND GILD THAT LILY. WHATEVER
FIGURE OF SPEECH YOU WANT TO GET INTO, UNTIL WE FIND QUT WHAT
417
GATES - DIRECT
THE STATES PROBLEM IS. Py
MR. FORD: THANK YOU VERY MUCH, YOUR HONOR.
THE COURT: ALL RIGHT.
BY MR. FORD:
Q. NOW, MR. GATES, I THINK YOU TOUCHED BRIEFLY ON THIS BEFORE,
WOULD YOU JUST RELOCATE US IN TIME HERE. IN TERMS OF THE PROCESS
THAT WAS FOLLOWED WITH REGARD TO THE TRAINING OF THE INDIVIDUALS
WHO WERE THE CODERS.
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1 BELIEVE YOU MENTIONED THAT FIVE INDIVIDUALS. ALL TO
10 THE BEST OF YOUR KNOWLEDGE LAW STUDENTS, WERE HIRED FROM IOWA,
11 IS THAT RIGHT?
12 A. THATS CORRECT.
13 de. WAS ANYONE ADDITIONAL ADDED? I THINK WE“VE TALKED ABOUT
14 SIX CODERS. IS THAT RIGHT?
15 A. THAT’S RIGHT.
16 ol. WHO IS THE SIXTH PERSON?
17 A. THE SIXTH PERSON IS JACK BARKER. HE WAS AN UNDERGRADUATE
12 AT DUKE UNIVERSITY AT THE TIME.
% 19 ANTICIPATING A BURDEN PLACED UPON THE DEPARTMENT OF
20 PARDONS AND PAROLES TO PULL TWELVE HUNDRED FILES FOR US FOR :
21 SUMMER. AND NOT WANTING IN ANY WAY TO INTERFERE WITH THE SMOOTH
22 OPERATION OF THEIR AGENCY, WE SUGGESTED TO THEM THAT THEY HIRE
23 ‘SOMEONE WITHIN THEIR OWN SYSTEM TO PULL THE FILES FOR US. IN
24 THAT WAY THEY COULD CHOOSE THAT PERSON AND TRAIN THAT PERSON,
23 AND VERY POSSIBLY HAVE THAT PERSON PERFORM OTHER FUNCTIONS FOR
Y
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418
GATES - DIRECT
THEM BUT THAT WE WOULD PAY THAT PERSON‘S SALARY.
Q. BY THE WAY. WAS EVERYONE IN THIS PAID? THIS WAS NOT
VOLUNTEER WORK?
A. NO, THEY WERE ALL PAID. INCLUDING JACK BARKER, AND PAID AT
$5.00 AN HOUR.
@. AND WERE YOU PAID AS WELL?
A. YES. 1 Was.
Q. AND WHAT WAS YOUR RATE OF PAY?
A. I WAS PAID $10.00 AN HOUR, WHILE I WAS SUPERVISING THE
CODERS.
Q. SO YOU HAD GOTTEN A RAISE SINCE THE PREVIOUS WORK ON STUDY
1, IS THAT RIGHT?
A. YES. 1 STARTED OFF AT $5.00 AN HOUR. AND WHEN I WENT TO
10WA, MAKING PREPARATION FOR GEORGIA, 1 WAS MAKING $3.00 AN
HOUR. AND IN GEORGIA SUPERVISING THE CODERS. I MADE TEN DOLLARS
AN HOUR.
Q. WHEN DID YOU AND THE CODERS. SIX INDIVIDUALS. EVER GET,
WHEN DID YOU FINALLY GET TOGETHER IN THIS ONE SPOT?
A. WE FINALLY GOT TOGETHER IN MID- TO LATE MAY.
0. WHERE WAS THAT?
A. “81, AT THE DEPARTMENT OF PARDONS AND PAROLES.
@. HERE IN ATLANTA?
A. HERE IN ATLANTA.
@. GEORGIA STATE DEPARTMENT OF PARDONS AND PAROLES?
A. 800 PEACHTREE STREET.
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G. AND WHAT DID YOU —— WAS ANYONE ELSE THERE WITH YOU?
A. PROFESSOR BALDUS WAS HERE.
@. AND WHAT WAS THE FIRST ORDER OF BUSINESS?
A. THE FIRST ORDER OF BUSINESS WAS TO CHECK THE CODING OF THE
QUESTIONNAIRES. THE PRACTICE QUESTIONNAIRES THAT HAD BEEN SENT
TO THE CODERS.
@. THIS IS THE TRAINING PERIOD —-
A. YES.
@. ~-- YOU PREVIOUSLY DESCRIBED?
A. THAT’S CORRECT.
@. AND ABOUT HOW LONG DID THAT LAST?
A. THE WHOLE TRAINING PERIOD LASTED FOR FIVE DAYS WHILE
PROFESSOR BALDUS WAS HERE AND THEN FOR THREE DAYS AFTER HIS
DEPARTURE. AND WHAT WE WOULD, WHAT WE WOULD DO ON A DAILY BASIS
IS HAVE ALL THE CODERS CODE THE SAME FILE. AND WHEN THEY WERE
DONE WITH THAT. WE WOULD GO THROUGH THE CORRECT CODINGS FOR EACH
QUESTION. EACH VARIABLE, EACH FOIL IN THE QUESTIONNAIRE.
AND SPEND MAYBE SIX OR EIGHT HOURS DISCUSSING,
DISCUSSING HYPOTHETICALS AND POSSIBILITIES FOR CODING TO EXPLORE
AS MUCH AS WE COULD ABOUT THE DIFFERENT WAYS YOU MIGHT CODE A
CERTAIN QUESTION IN A HYPOTHETICAL.
THE COURT: TALKING ABOUT THE TRAINING IN 1981?
THE WITNESS: THATS CORRECT.
THE COURT: WE’VE COVERED THAT, MR. FORD. LETS MOVE
ALONG.
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420
GATES - DIRECT
MR. FORD: SORRY. YOUR HONOR.
THE WITNESS: MAY I CLARIFY ONE POINT? JACK BARKER WAS
ORIGINALLY HIRED JUST FOR THE FILES. HE WAS HIRED BY THE PEOPLE
AT THE DEPARTMENT OF PARDONS AND PAROLES, AND IT WAS CLEAR FROM
OUR FIRST INTERACTIONS WITH HIM THAT HE WAS A VERY VERY BRIGHT
PERSON. SO WE DECIDED TO HAVE HIM, PROFESSOR BALDUS DECIDED TO
HAVE HIM PARTICIPATE IN THE INITIAL TRAINING. AND IT WAS CLEAR
THAT HE WAS CODING JUST AS WELL AS THE OTHER PEOPLE. AND SO IN
ADDITION TO HIS RESPONSIBILITIES FOR PULLING THE FILES. WHEN HE
HAD EXTRA TIME HE WAS CODING CASES.
BY MR. FORD:
Go. IS HE ANOTHER LAW STUDENT?
A. NO. HE WAS AN UNDERGRADUATE. DUKE UNIVERSITY.
Q. TURNING TO EG-4, COULD YOU TURN BACK TO THAT, THE ORIGINAL
CODING INSTRUCTIONS?
FIRST PAGE OF THAT, I“D JUST LIKE TO DISCUSS WITH YOU A
LITTLE BIT WHAT SOME OF THESE INSTRUCTIONS MEANT. THIS IS THE
DOCUMENT THAT EVERYONE HAD FROM THE OUTSET.
THE COURT: EXCUSE ME MR. FORD. UNLESS IT REALLY WOULD
INTERRUPT YOUR PRESENTATION, IT WOULD BE MUCH MORE HELPFUL IF HE
TESTIFIED WITH REFERENCE TO THE QUESTIONNAIRE AS YOU DID IN THE
FIRST ONE. RATHER THAN JUST SIT HERE AND READ THE RULES.
MR. FORD: WE ARE PREPARED TO DO THAT, THEN, YOUR
HONOR. WE CAN MOVE AHEAD TO THAT. I THINK WE MAY WANT TO COME
BACK AND HIT A COUPLE OF RULES.
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THE COURT: WELL, HIT THE ONES THAT YOU THINK NEED TO
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2 BE BROUGHT OUT. BUT THE REASON I LET THIS THING IN. THE OTHER
3 | ONE IN WAS SO I DIDN‘T HAVE TO SIT.HERE WHILE YOU WENT THROUGH
4 17.
5 MR. FORD: COULD I HAVE JUST A MINUTE OR TWO FOR SOME
6 GENERAL PROPOSITIONS, YOUR HONOR, --—
% 7 THE COURT: SURE.
a MR. FORD: -- OUT OF THESE, JUST TO CLARIFY MATTERS?
9 MIGHT NOT COME UP ON INDIVIDUAL FOILS THROUGH THIS STUDY.
10 BY MR. FORD:
11 Q. THE FIRST PAGE DESCRIBES THE INFORMATION IN THE PAROLE
12 BOARD REPORT. IS THAT RIGHT?
13 Fra YES.
14 @. AND SAME KIND OF STUFF WE. INFORMATION WE TALKED ABOUT IN
15 THE STUDY 17
16 A. THAT’S CORRECT.
17 Q. AND AGAIN. IT APPEARS TO BE A HIERARCHY OF INFORMATION,
18 NOTING THAT ON THE BOTTOM IT NOTES THIS LATTER INFORMATION IS
% 19 OFTEN RECORDED INCORRECTLY. SO YOU HAD A HIERARCHY OF THINGS
20 THAT YOU WOULD FOLLOW. IS THAT RIGHT?
21 A. THATS RIGHT.
22 Ql. IN TERMS OF ANY CONFLICTS?
23 A. THATS CORRECT.
24 a. AND AGAIN YOU HAD THE GEORGIA SUPREME COURT OPINION?
25 A. THATS RIGHT.
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Q. WITH REGARD TO THE GENERAL SETS OF INSTRUCTIONS. WAS THERE
ANY DIFFERENCE BETWEEN THE RULE ON STUDY NUMBER 2 AND STUDY NUMBER
WITH REGARD TO DRAWING INFERENCES?
A. YES.
A. DOES THAT FIRST PARAGRAPH THERE DEAL WITH THAT?
THE COURT: ON PAGE WHAT?
MR. FORD: I“M SORRY. ON PAGE. MY COPY DOES NOT HAVE A
NUMBER ON IT. IT SAYS "CODING INSTRUCTIONS FOR GEORGIA PAROLE
BOARD QUESTIONNAIRE (SUMMER. 1981).°
THE WITNESS: WELL, THERE‘S SOME GENERAL INSTRUCTIONS
AT THE TOP OF THAT PAGE THAT BASICALLY STATE IF THERES AN
AMBIGUITY, DON’T RESOLVE IT YOURSELF.
THE INSTRUCTIONS ARE MUCH MORE SPECIFIC WITH REGARD TO
THE QUESTIONS YOURE ASKING STARTING AT THE NEXT PAGE, PAGE 2
AND 3.
BY MR. FORD:
Qe. STARTING ON TOP OF PAGE 2 OR WHERE?
A STARTING AT SECTION B, CONFLICTING STATEMENTS AND
AMBIGUITIES.
Qe. I NOTICE THAT SETS OUT A COUPLE OF RULES, IS THAT CORRECT. COUPLE OF BASIC GENERAL RULES?
A. THATS RIGHT.
Q. WHAT WAS THE FIRST OF THOSE RULES STATED THERE?
Fe THE FIRST. AND THAT’S WITH REGARD TO CONFLICTING
STATEMENTS, WAS THAT WHERE THERE WERE CONFLICTING STATEMENTS IN
1
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THE RECORD. AND WHERE IT COULDN’T BE RESOLVED ON THE BASIS OF
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2 APPLYING THE HIERARCHY THAT WE HAD WITH RESPECT TO THE SUPREME
3 COURT OPINION BEING FIRST AND FOREMOST. SO ON» WHAT YOU WOULD DO
4 1S RESOLVE THE AMBIGUITY IN THE DIRECTION THAT WOULD SUPPORT THE
S LEGITIMACY OF THE CONVICTION OR THE LENGTH OF THE SENTENCE --
é Ql. 1S THAT
e 7 A. ~— RATHER IT RESOLVED THE CONFLICTING STATEMENT.
8 a. 1S THAT RULE SET OUT ON THE BOTTOM OF THIS PAGE 2 AND
? THROUGH PAGE 3, IS THAT RIGHT?
10 A. THATS CORRECT.
11 Q. SO. IN OTHER WORDS, IF, IT’S IMPOSSIBLE TO SAY BETWEEN TWO
12 POSSIBLE CODING RESPONSES WHICH ONE WAS CORRECT, THE PRESUMPTION
13 WAS IN FAVOR OF THE CORRECTNESS OF THE OUTCOME OF THE CASE. IS
14 THAT THE GENERAL WAY OF STATING IT FOR BOTH?
15 A. THAT'S ALMOST RIGHT. WE NEED TO SEPARATE CONFLICTING
146 STATEMENTS AND AMBIGUITIES.
17 LET ME DO IT BY EXAMPLE:
18 IF TWO WITNESSES WERE REPORTED AS WITNESSING THE CRIME,
Fe 19 AND ONE OF THEM SAID THAT THE DEFENDANT DID IT, AND ANOTHER
20 SAID, THE DEFENDANT DIDNT DO IT. THEN THE WAY YOU WOULD RESOLVE
21 THAT AMBIGUITY IS TO SUPPORT THE DECISION THAT THE FACT FINDERS
22 MADE. THAT IS THAT THE FACT FINDERS CAME TO THE CONCLUSION THAT
23 THE DEFENDANT DID IT.
24 Gl. WOULD THE SAME THING APPLY TO SENTENCE?
23 A. GENERALLY, YES.
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Q. IS THAT STATED OUT ON PAGE 37
2 A. YES. IT 1S.
3 AND IT’S STATED IN THE CONTEXT OF RESOLVING AMBIGUITIES
4 AND BY AMBIGUITIES. WHAT WE MEAN IS WHERE SOME INFORMATION IS
3 PRESENTED IN THE FILE, BUT ITS INCOMPLETE INFORMATION. IT’S
& UNCLEAR, AND SO THE WAY YOU WOULD RESOLVE SUCH AN AMBIGUITY IS
. 7 TO SUPPORT THE, WHAT WE CALL THE LEGITIMACY OF THE SENTENCE,
8 THAT IS, IF, AGAIN LET ME ILLUSTRATE BY EXAMPLE.
? IF YOU KNEW THERE WAS A ROBBERY AND YOU DIDN’T KNOW IF
10 IT WAS AN ARMED ROBBERY OR IF IT WAS A ROBBERY BY FORCE. IF THE
11 PERSON GOT A DEATH SENTENCE, THEN YOU WOULD CODE THAT AS AN
2 ARMED ROBBERY, AND OF COURSE, NOTE IN THE AMBIGUITY SECTION THAT
13 IS WHAT YOU’VE DONE.
14 IF THE PERSON HAD GOTTEN A LIFE SENTENCE. YOU WOULD RESOLVE
15 THAT AMBIGUITY IN THE DIRECTION THAT WOULD BE A LESS AGGRAVATING
16 TYPE OF CRIME.
17 a. SO ALWAYS SUPPORTING WHATEVER THE OUTCOME OF THE CASE HAD
18 BEEN?
* i? A. THATS RIGHT.
20 Q. NOW. STARTING ON PAGE 4, AND GOING ON THROUGH PAGE 11 OF
21 THIS DOCUMENT. SOME MORE SPECIFIC INSTRUCTIONS RELATING TQ EACH
22 QUESTION. IS THAT RIGHT. OR MANY OF THE QUESTIONS. IS THAT
23 RIGHT?
24 A. THATS EXACTLY RIGHT.
23 Q. AND WHEN WE, CAN WE TURN TO, WELL. LET ME ASK ONE OTHER La
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QUESTION, JUST TO MAKE THE RECORD CLEAR.
AFTER THAT PAGE 11 WE SEE AN APPENDIX A, AT LEAST IN MY
COPY. DO YOU HAVE THAT?
Po YES, I HAVE THAT.
a. LISTS A NUMBER OF FELON ~- VIOLENT PERSONAL FELONIES IN
GEORGIA AND OTHER FELONIES IN GEORGIA, ARE THOSE JUST
DEFINITIONS FOR PURPOSES OF THE QUESTIONNAIRE OR WHAT?
Ae YES, AND TWO OF THE QUESTIONS IN THE CHARGING AND SENTENCING
STUDY, THERE’S A FOIL WHERE YOU ENTER WHETHER OR NOT. IF YOU
DON‘T, THERE“S TWO GENERAL CATEGORIES. AND THEY ARE VIOLENT
PERSONAL FELONIES, AND OTHER FELONIES, AND THOSE ARE THE LISTS
OF WHAT THOSE ARE, SO THAT PEOPLE DIDN‘T HAVE TO GUESS.
QR. DEFINITION OF SOME SORT?
A. YES.
a. NOW ON DB-43, THE SUPPLEMENTED INSTRUCTIONS. I GUESS WE
START ON PAGE 5, AT LEAST OF MY COPY, AND GO THROUGH A SIMILAR
| LIST OF INSTRUCTIONS, THOUGH ONE THAT’S MORE LONG, MUCH LONGER.
AND APPARENTLY MORE DETAILED. IS THAT RIGHT?
A. THATS RIGHT.
Q. AND THOSE ARE QUESTION BY QUESTION, AND, KINDS OF THINGS?
A. UH HUH.
@. NOW: DID, AND, ON THAT DB-43. IS THAT APPENDIX OF THE
VIOLENT FELONIES, IS THAT INCLUDED?
A. YES.
QR. CAN WE TURN NOW. PLEASE, TO THE ITEM MARKED EG-éA IN YOUR
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NOTEBOQK®?
THE COURT: IS THAT DIFFERENT FROM THE EG-46?
MR. FORD: 1 BELIEVE EG-4 PERHAPS THE WITNESS COULD
IDENTIFY, BUT I THINK IT IS JUST A COPY OF A BLANK
QUESTIONNAIRE: AND EG-4A IS A COPY OF A FILLED QUT
QUESTIONNAIRE. I DON’T PLAN TO OFFER EG~é BUT IT“S THERE
PARTLY. YOUR HONOR, BECAUSE AS YOU WILL NOTICE, EG-A IS NOT VERY
CLEAR IN SOME PARTS. I THOUGHT IT MIGHT BE HANDY TO HAVE IT
CLOSE BY.
BY MR. FORD:
Q. DO YOU RECOGNIZE WHAT EG—6A IS?
A. YES, 1 DO. THAT’S A QUESTIONNAIRE THAT WAS CODED BY JOHN
GREENO IN IN JULY OF 1981.
Ae AND HAVE YOU EVER SEEN THAT BEFORE TODAY?
A. YES, 1 HAVE.
I SAW IT YESTERDAY.
» 8 DO YOU KNOW IF YOU COULD HAVE SEEN IT DURING THE STUDY
ITSELF?
A. IT’S POSSIBLE THAT THIS IS ONE OF THE CASES I REVIEWED. I
DON‘T KNOW THAT NOW.
Q. DOES THIS APPEAR TO BE A FILLED OUT QUESTIONNAIRE FROM
STUDY NUMBER 27
3. I BELIEVE THAT PROFESSOR BALDUS HAS -—-
MR. FORD: YOUR HONOR, IF I COULD BE FRANK WITH THE
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COURT, I°M VERY TIRED. I DON’T KNOW IF THE WITNESS IS. IN MY
PART OF THE COUNTRY. I DON‘T KNOW A JUDGE THAT GOES TO FIVE LET
ALONE FIVE-THIRTY.
THE COURT: WHAT TIME DO THEY START?
MR. FORD: WE MAY BE ABLE TO MOVE ALONG A LOT FASTER IF
WE COULD BREAK FOR THE EVENING.
THE COURT: WHAT TIME DO YOUR JUDGES START OUT THERE?
‘MR. FORD: OH» WE GENERALLY START AT 9130 AS WELL. YOUR
HONOR. I DON’T THINK WE ARE AS HARD WORKING UP THERE. |
THE COURT: I DON’T BELIEVE THAT FROM EVERYTHING IVE
HEARD ABOUT WASHINGTON.
ILL MAKE YOU A DEAL. IF YOU WON‘T UNNECESSARILY GILD
THE LILY TOMORROW. ILL BE GLAD TO GIVE YOU A RECESS TODAY.
MR. FORD: I‘LL MAKE EVERY EFFORT TO SPEED THINGS UP
FOR TOMORROW OVERNIGHT, YOUR HONOR. :
THE COURT: LET ME SAY THAT I REALIZE THAT THE STANDARD
FOR JUDGING THE WEIGHT TO BE GIVEN TO THE TESTIMONY OF AN EXPERT
WOULD BE AMONG OTHER THINGS THE REASONS THAT HE GIVES FOR HIS
CONCLUSIONS. |
AND I WOULD PRESUME WHERE THAT TEST IS INVOLVED, THAT
INCLUDES METHODOLOGY.
AS 1 TRIED TO INDICATE TO YOU EARLIER, I DON’T MIND
YOUR MAKING SOME SORT OF A RECORD TO PROVE THAT YOU ENDEAVORED
TO ADHERE TO RECOGNIZED TECHNIGUES. BUT THE GREAT DETAIL MAY OR
MAY NOT BE NECESSARY, DEPENDING ENTIRELY ON WHAT THE STATE’S
423
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1 POSITION IS.
2 AT THIS POINT, I’M NOT REALLY CLEAR ON WHETHER THE
STATE WOULD FOR THE PURPOSES OF ORAL ARGUMENT, FOR EXAMPLE.
ADMIT THE CONCLUSIONS OF THE STUDY AND SAY THEY MAKE NO
DIFFERENCE, IN WHICH EVENT WE‘RE WASTING AN AWFUL LOT OF TIME.
3
4
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6 MR. FORD: WE CERTAINLY WOULD. YOUR HONOR.
7 THE COURT: OR WHETHER THEY BELIEVE IT IS FLAWED IN
8 PART OR IN WHOLE OR WHATEVER.
: SO DON’T, DON“T TRY TO ANTICIPATE ALL THE STATE’S
10 PROBLEMS. I UNDERSTAND THAT YOU DO NOT THINK THAT YOU HAVE FULL
11 NOTICE OF ALL OF THEIR PROBLEMS, AND I OBVIOUSLY WILL BE
12 REASONABLY GENEROUS WITH YOU IN REBUTTAL AFTER WE FIND OUT WHAT
13 THEIR POSITION IS.
14 MR. FORD: APPRECIATE THAT.
15 THE COURT: DON’T OVERDO IT.
16 MR. FORD: YOU HONOR. I WOULD ONLY ANTICIPATE -—
17 THE COURT: I“M NOT FUSSING AT YOU, I WOULD MAKE THE
18 SAME COMMENT TO MR. BOGER IF HE WERE HERE. IM IMPRESSED. BUT I
as 19 DON’T KNOW WHAT THE PROBLEMS ARE. UNTIL I FIND OUT WHAT THE
20 PROBLEMS ARE AND WHAT THE CONCLUSIONS ARE, I CAN‘T REALLY DO
21 MUCH WITH WHAT I‘M HEARING EITHER. SO A LOT OF WHAT YOU“RE
22 DOING MIGHT BE SAVED FOR REBUTTAL IS WHAT I“M SAYING TO YOU.
23 MR. FORD: I HOPE TO FINISH UP WITH THIS GUESTIONNAIRE
24 TOMORROW, YOUR HONOR. AND THAT’LL BE IT FOR MR. GATES.
23 THE COURT: WITH THAT DISCUSSION ON THE LAST