General - Working Files, Vivian Berger's Vol. 1 of 4
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August 29, 1986 - December 23, 1987
175 pages
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Case Files, McCleskey Background Materials. General - Working Files, Vivian Berger's Vol. 1 of 4, 1986. a809d976-5aa7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/549fb2d6-0860-4a2c-84c5-d2d14e5cdc3f/general-working-files-vivian-bergers-vol-1-of-4. Accessed May 21, 2025.
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No. 84-6811
OO)
Vv
In The
Supreme Court of the United States
October Term, 1985
0.
J
WARREN MCCLESKTY,
Petitioner,
Y.
RALPH KEMP, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
OO)
hd
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
~~
ERIZEF FOR RESPONDENT
ND
J
Mary Bere WESTMORELAND
Assistant Attorney General
Counsel of Reeord for Respondent
MicmAEL J. BOWERS
Attorney General
Marion O. GorpoN
First Assistant Attorney General
Woriam B. Hoo, Jz.
Senior Assistant Attorney General
Mary BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
QUESTIONS PRESENTED
1,
Is the statistical analysis which wag presented to the district court Inadequate to prove a constitutional viola- tion, both as a matter of fact and as a matter of law?
2.
Are the arbitrariness and capriciousness concerns of Furman ». Georgia, 408 U.S. 238 (1972), removed when a state properly follows a constitutional sentencing proce- dure?
3.
In order to establish a constitutional violation based on allegations of discrimination, must a petitioner prove intentional and purposeful diserimination?
QUESTIONS PRESENTED
STATEMENT OF THE CASE
SUMMARY OF THE ARGUMENT
ii
TABLE OF CONTENTS
ARGUMENT
I STATISTICAL ANALYSES ARE INADE-
IL
IL
Iv.
CONCLUSION
QUATE AS A MATTER OF FACT AND LAW
TO PROVE DISCRIMINATION UNDER THE
FACTS OF THY INSTANT CASE. eines
THE STATISTICAL ANALYSES IN THE -IN-
STANT CASE ARE INSUFFICIENT TO
PROVE RACIAL DISCRIMINATION. ...n
THE ARBITRARINESS AND CAPRICIOUS-
NESS CONCERNS OF FURMAN V. GEOR-
GI4, 408 U.S. 238 (1972), ARE REMOVED
WHEN A STATE PROPERLY FOLLOWS A
CONSTITUTIONAL SENTENCING PROCE-
DURE.
PROOF OF DISCRIMINATORY INTENT IS
REQUIRED TO ESTABLISH AN EQUAL
PROTECTION VIOLATION.
j
t
[=
r
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]]
16
iii
TABLE OF AUTHORITIES
Cases CiTeED:
Bazemore v. Friday, — U.S. —, 106 S.Ct. 3000
Page(s)
(1986) 10, 20
Britton v. Rogers, 631 F.2d 572 (5th Cir. 1980),
cert. demed, 451 U.S. 939 (1981) 8
Caldwell v. Mississippr, 472 U.S. —, 105 S.Ct. 2633
(1985) 13
California v. Ramos, 463 U.S. 992 (1983) 28
Castaneda v. Partida, 430 U.S. 482 (1977) wire 22
Eastland v. Tennessee Valley Authority, 704 F.2d
613 (11th Cir. 1983) 11
Eddings v. Oklahoma, 4565 U.S. 104 (1982) wo. 13
Enmund v. Florida, 4568 U.S. 782 (1982) 27
Equal Employment Opportunity Commission wv.
Datapowmt Corporation, 570 F.2d 1264 (5th Cir.
1978) 10
Estelle v. Gamble, 429 U.S. 97 (1976) 24
Furman v. Georgia, 408 U.S. 238 (1972) .........8, 24, 25,27,
73,29, 30
Godfrey v. Georgia, 446 U.S. 420 (1980) ero. 27
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......33.35
Gregg v. Georgia, 428 U.S. 153 (1976) ..... 25, 26, 27, 28, 29
Ingraham v. Wright, 430 U.S. 651 (1977) 24
International Brotherhood of Teamsters v. Umited
States, 431 U.S. 324 (1977) 9
Johnson v. Uncle Ben’s Inc., 628 F.2d 419 (5th Cir.
1980) 11
Lockett v. Oho, 438 U.S. 586 (1978) 13. 28,27
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Louistana ex rel. Francis v. Resweber, 329 U.S.
459, rhmg. demied, 330 U.S. 853 (1947) 24
Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968),
remanded on other grounds, 398 U.S. 262 (1970) ..... 12
Mayor of Philadelphia v. Educational Equality
League, 415 U.S. 605 (1974)
McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985)
(en banc) 4
McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga. 1984) .... 1,32
3, 4,17, 18, 20. 23
McCorquodale v. Balkcom, 525 F.Supp. 408 (N.D.
Ga. 1981), affirmed, 721 F.2d 1493 (11th Cir. 1983)... 13
19
6
McGautha v. California, 402 U.S. 183 (1971) eee 12
Oyler v. Boles, 368 U.S. 448 (1962) 31
Persommel Adwmimistrator of Massachusetts v.
Feeney, 442 U.S. 256 (1979) 33
Proffitt v. Florida, 428 U.S. 242 (1976) 26
Pullman-Standard v. Swint, £56 U.S. 273 (1982) ..... 7
Rogers v. Lodge, 4568 U.S. 613 (1982) 33
Shaw v. Martin, 733 F.2d 304 (4th Cir. 1984) eee. 13
Smath v. Balkcom, 660 F.2d 584 (5th Cir. 1981), on
rehearing, 671 F.2d 858 (5th Cir. Unit B, 1982) ...... 13
Spwmkellink v. Wainwright, 578 F.2d 582 (5th Cir.
1978) 13
Stephens v. Kemp, — U.S. —, 104 S.Ct. 562 (1983) .... 28
Trop v. Dulles, 356 U.S. 86 (1958) 14.24
Turner v. Murray, — U.S. —, 106 S.Ct. 1683 (1986) .... 4
United States v. Iromworkers Local 86, 443 F.2d
344 (9th Cir. 1971) 10
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. United States Gypsum Co., 333
U.S. 364 (1948) 17
Valentino v. United States Postal Service, 674
F.2d 56 (D.C.Cir. 1982) 11
Village of Arlington Heights v. Metropolitan Hous-
mg Development Corp., 429 U.S. 252 (977) “as 32, 33
Wade v. Mississippi Cooperative Extension Ser-
vice, 528 F.2d 508 (5th Cir. 1976) 10
Washington v. Davis, 426 U.S. 299 (1078) 31, 32
Wayte v. United States, — U.S. —, 105 S.Ct. 1524
(1985) : 33
Whitus v. Georgia, 385 U.S. 545 (1967) 31
Wilkerson v. Utah, 99 U.S. 130 (1878) 23
Wiikins v. University of Houston, 654 F.2d 388
(5th Cir. Unit A 1981) 1
Witherspoon v. Illinois, 391 U.S. 510 (1068) wii 14
Woodson v. North Carolina, 428 U.S. 280 (1978)... .. Woglic
Yick Wo v. Honkins, 118 T.S. 356 (1886) 31,33
OTHER AUTHORITIES:
Baldus & Cole, 4 Comparison of the Work of Thor-
sten Sellin and Isaac Ehrlich on the Deterrent
Effect of Capital Punishment, 85 Yale L. J. 170
(1975)
15
Fisher. Multiple Regression in Legal Proceedings,
80 Colum. L.Rev. 702 (1980) 15, 20
A. Goldberger, Topics in Regression Analysis ( 1968). 15
vi
TABLE OF AUTHORITIES—Continued
Page(s)
McCabe, The Interpretation of Regression Analy-
sis Results mm Sex amd Race Discrimination
Problems, 34 Amer. Stat. 212 (1980) 16
Smith and Abram, Quantitative Analysis and Proof
of Employment Discrimination, 1981 U.Ill. L.Rev.
33 (1981) 15
G. Wesolowsky, Multiple Regression Analysis of
Variance (1976) 15
No. 84-6811
9)
FF
In The
Supreme Court of the United States
October Term, 1985
O
v
WARREN MCCLESKEY,
Petitioner,
Y-
RALPH KEMP, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
0
hd
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Fa}
Ad
BRIEF FOR RESPONDENT
HH
J
STATEMENT OF THE CASE
In addition to the statement of the case set forth by
the Petitioner, Respondent submits the following regard-
ing the district court and circuit court proceedings:
Two different studies were conducted on the criminal
justice system in Georgia by Professors Baldus and Wood-
worth, that is, the Procedural Reform Study and the
Charging and Sentencing Study. See McCleskey v. Zant,
580 F.Supp. 338, 353 (N.D.Ga. 1984). The Petitioner pre-
sented his case primarily through the testimony of Pro-
fessor David C. Baldus and Dr. George Woodworth. Peti-
tioner also presented testimony from HEdward (Gates as
1
well as an official from the State Board of Pardons and
Paroles. The state presented testimony from two expert
statisticians, Dr. Joseph Katz and Dr. Roger Buford.
The district court made the following specific factual
findings regarding the trustworthiness of the data base:
[T'1he court is of the opinion that the data base has
substantial flaws and that the petitioner has failed to
establish by a preponderance of the evidence that it
is essentially trustworthy. As demonstrated above,
there are errors in coding the questionnaire for the
case sub judice. This fact alone will invalidate several
important premises of petitioner’s experts. Further,
there are large numbers of aggravating and mitigat-
ing circumstances data about which is unknown. Also,
the researchers are without knowledge concerning the
decision made by prosecutors to advance cases to a
penalty trial in a significant number of instances. The
court’s purpose here is not to reiterate the deficien-
cies but to mention several of its concerns. It is a
major premise of a statistical case that the data base
numerically mirrors reality. If it does not in substan-
tial degree mirror reality, any inferences empirically
arrived at are untrustworthy.
McCleskey v. Zant, supra, 580 F.Supp. at 360 (emphasis
in original). (J.A. 144-5).
The distriet court found as fact that ‘“nome of the
models utilized by the petitioner’s experts were sufficient-
ly predictive to support an inference of discrimination.”’
McCleskey v. Zant, supra at 361. (J.A. 149).
The district court also found problems in the data due
to the presence of multicollinearity. The distriet court
noted that a significant fact in the instant case is that
white victim cases tend to be more aggravated, that is
correlated with aggravating factors, while black vietim
cases tend to be more mitigated, that is correlated with
mitigating factors. Every expert who testified, with the
exception of Dr. Berk, agreed that there was substantial
multicollinearity in the data. The district court found,
“The presence of multi-colinearity substantially dimin-
ishes the weight to be accorded to the circumstantial statis-
tical evidence of racial disparity.” McCleskey v. Zant,
supra at 364. (J.A. 153). The court then found Petitioner
had failed to establish a prima facie case based either on
race of victim or race of defendant. Id.
Additionally, the district court found ‘that any racial
variable is not determinant of who is going to receive the
death penalty, and, further, the court agrees that there is
no support for a proposition that race has any effect in
any single case.”” McCleskey v. Zant. supra at 366 (empha-
sis in original). (J.A. 157). ““The best models which
Baldus was able to devise which account to any significant
degree for the major mom-racial variables, including
strength of the evidence, produce no statistically signifi-
cant evidence that race plays a part in either of those de-
cisions [by the prosecutor and jury] im the State of
Georgia.” McCleskey v. Zant, at 368 (emphasis in origi-
nal). (J.A. 159).
Finally, the district court found that the analyses did
not ‘compare identical cases, and the method 1s mcapable
of saying whether or not any factor had a role in the de-
cision to impose the death penalty in any particular case.’’
McCleskey v. Zant at 372 (emphasis in original). (J.A.
168). “To the extent that McCleskey contends that he was
dewied either due process or equal protection of the law.
his methods fail to contribute anything of value to his
4
cause.”’ McCleskey v. Zant at 372 (emphasis in original).
(J.A. 169).
The court also found the Respondent presented direct
rebuttal evidence to Baldus’ theory that contradicted any
prima facie case of system-wide discrimination, if one had
been established. McCleskey v. Zant at 373.
In examining the issues, the Eleventh Circuit Court of
Appeals assumed, but did not decide, that the research
was valid because there was no need to reach the question
of the validity of the research due to the court’s legal
analysis. The court specifically complimented the district
court on its thorough anaylsis of the studies and the evi-
dence. The Eleventh Circuit observed that the first study,
the Procedural Reform Study, revealed no race of de-
fendant effects whatsoever and revealed unclear race of
victim effects. McCleskey v. Kemp, 753 F.2d 877, 887 (11th
Cir. 1985) (en bamc). As to the Charging and Sentencing
Study, the court concluded, ‘‘ There was no suggestion that
a uniform institutional bias existed that adversely affected
defendants in white vietim cases in all circumstances, or a
black defendant in all cases.”” Id. Finally, the court con-
cluded the following in relation to the data specifically re-
lating to the county in which the Petitioner was convicted,
that ig, Fulton County. Georgia:
Because there were only ten cases involving police
officer victims in Fulton County, statistical analysis
could not be utilized effectively. Baldus conceded that
it was difficult to draw any inference concerning the
overall race effect in these cases because there had
been only one death sentence. He concluded that based
on the data there was only a possibility that a racial
factor existed in MeCleskey’s case.
Id. at 887 (emphasis in original).
(W
]]
Any further factual or procedural matters will be
discussed as necessary in the subsequent portion of the
brief.
Q
SUMMARY OF THE ARGUMENT
Although the petition in the instant case lists five
questions presented, the main foeus of this case is simply
one of whether there has heen racial discrimination in the
application of the death penalty in Georgia and, in par-
ticular, whether there was racial diserimination in the im-
position of the death penalty upon the Petitioner. An-
other way of looking at this issue is whether the Petitioner
was selectively prosecuted and sentenced to death based
on his race and that of the victim or whether Petitioner’s
sentence is disproportionate. Regardless of the standard
to be applied, an appropriate consideration is the intent
of the decision-makers in question. A review of the cases
of this Court dealing with death penalty statutes shows
that the general arbitrariness and capriciousness which
concerned the Court in 1972 is no longer a consideration f
S
if a state follows a properiv drawn statute and if the
jury’s discretion is properly channeled. Thus, the focus
in an Bighth Amendment analysis becomes a question of
whether the sentence in a given case is ‘‘arbitrary’’ in the
sense of being an aberration. The evidence in the instant
case shows that the Georgia statutory scheme is funection-
ing as it was intended to function and that those cases
which are more severe are receiving stronger penalties
while the less severe cases are receiving lesser penalties.
There is no evidence to show that the Petitioner’s sentence
in the instant case was arbitrary or capricious and no evi-
dence to show that either the prosecutor or the jury based
their decision on race.
In relation to an equal protection context, it has al-
ways been recognized that intentional and purposeful dis-
crimination must be established for a constitutional viola-
tion to be proven. Although intent may be inferred from
circumstantial evidence, the circumstantial evidence must
be sufficient to establish a prima facie case of diserimina-
tion before intent will be inferred. Even if a prima facie
case is shown, the Petitioner would still have the ultimate
burden of proof after considering any rebuttal evidence.
In evaluating facts and circumstances of a glven case,
the court must consider the totality of the circumstances
in determining whether the evidence is sufficient to find
intentional and purposeful diserimination. Although sta-
tistics are a useful tool in many contexts, in the sitnation
presented involving the application of the death penalty,
there are simply too many unique factors relevant to each
individual case to allow statistics to be an effective tool in
proving intentional discrimination. Furthermore, the Peti-
tioner’s statistics in the instant case were found to be inval-
id by the district court, which was the only court making
any factual findings in relation to those statistics. Thus,
the clearly erroneons standard should apply to those factu-
al findings. Furthermore, when a plausible explanation is
offered, as it was in the instant case, that 1s, that white
victim cases are simply more aggravated and less miti-
gate’! than black vietim cases and that various factors
tainted the statistics utilized, statistics alone or a disparity
alone is clearly insufficient to justify an inference of dis-
crimination. Furthermore, the statistics in question fail
to take into consideration significant factors. Thus, the
statistics in the instant case do not give rise to an infer-
ence of discrimination.
When reviewing all of the evidence in the instant case,
it is clear that the findings of fact made by the distriet
court are not clearly erroneous and that the statistical
study in question should not be concluded to be valid so
as to raise any inference of discrimination. The Peti-
tioner failed to make a prima facie showing of discrimina-
tion and did not carry the ultimate burden of proof on the
factual question of intent. Furthermore, Petitioner simply
failed to show that his death sentence was arbitrary or
capricious or was the result of racial discrimination either
on the part of the prosecutor or on the part of the jury.
ARGUMENT
I STATISTICAL ANALYSES ARE INADE.
QUATE AS A MATTER OF FACT AND LAW
TO PROVE DISCRIMINATION UNDER THE
FACTS OF THE INSTANT CASE.
Respondent submits that the type of statistical an-
alyses utilized in the instant case are not appropriate in a
death penalty case when trying to evaluate the motivation
behind a prosecutor’s use of his discretion and the jury’s
subsequent exercise of discretion in determining whether
or not a death sentence should be imposed.! Each death
penalty case is unique and even though statistics might he
useful in jury composition cases or Title VII employment
discrimination cases where there are a limited number of
factors that are permissibly considered, in the instant case
where the prosecutor has discretion to pursue a case
through the criminal justice system and can consider any
number of subjective factors and where a jury has com-
plete discretion with regard to extending mercy, the sub-
jective factors cannot be accounted for in a statistical
analysis such as that utilized by the Petitioner in the in-
stant case. Thus, Respondent would submit that this
Court should completely reject the use of this type of sta-
tistical analysis as inappropriate in this case.
Even in the cases that have utilized statistical analysis
in a context other than that present in the instant case, the
courts have acknowledged various concerns with these
analyses. This Court has recognized in another context,
‘Statistical analyses have served and will continue to
serve an important role as one indirect indicator of racial
diserimination in access to service on governmental bod-
ies, particularly where, as in the case of jury service, the
duty to serve falls equally on all citizens.” Mayor of
Philadelphia v. Educational Equality League, 415 U.S.
Respondent submits that a claim of discrimination based
on race of victim is not cognizable under the circumstances of
the instant case. At least one circuit court has specifically re-
jected statistical evidence based on the race of the victim, find-
ing that the defendant lacked standing. Britton v. Rogers, 631
F.2d 572, 577 n.3 (5th Cir. 1980), cert. denied, 451 U.S. 939
(1981). Even those justices raising a question of possible racial
discrimination in Furman v. Georgia, 408 U.S. 238 (1972), seemed
to focus on race of the defendant and not race of the victim.
Thus, Respondent submits that the instant claim is not cognizable
due to the lack of standing.
605, 620 (1974) (emphasis added). In the instant case,
however, there is no such uniform ‘“duty’’ as in the jury
composition cases, as all citizens are certainly not equally
eligible for a death sentence, nor are even all perpetra-
tors of homicides or murders equally eligible for a death
sentence.
A central case regarding the use of statistics by this
Court arises in International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977). Again, this was in the
context of a Title VII action and not in a case such as the
instant one involving so many subjective factors. The
Court noted prior approval of the use of statistical proof
‘““where it reached proportions comparable to those in this
case to establish a prima facie case of racial diserimination
in jury selection cases.”” Id. at 339. The Court also noted
that statistics were equally competent to prove employ-
ment discrimination, which once again is different from
the type of discrimination sought to be proved in the in-
stant case. The Court specifically concluded, ‘‘ We caution
only that statistics are not irrefutable; they come in in-
finite variety and like any other kind of evidence, they
may be rebutted. In short their usefulness depends on all
of the surrounding facts and circumstances.’’ Id. at 340.
Thus, it is imperative to examine all of the facts and cir-
cumstances to determine whether the statistics in a given
case are even useful for conducting the particular analy-
sis. In Teamsters, supra, the Court also had 40 specific
instances of discriminatory action to consider in addition
to the statistics and noted that even ‘‘fine tuning of the
statistics could not have obscured the glaring absence of
minority line drivers.’’ Id. at 342 n.23. Thus, the Court
did not focus exclusively on the statistics.
10
Problems have also been noted revolving around the
particular use of statistics in any given case, many of
which occur in the studies presented to the district court
in the case at bar. In Bazemore v. Friday, — U.S. —, 106
S.Ct. 3000 (1986), the Court examined regression analyses
and concluded that ‘‘the omission of variables from a re-
gression analysis may render the analysis less probative
than it otherwise might be’’ while noting that this would
not generally make the analysis inadmissible. Id. at 3009.
The Court did go on to note that there could be some cases
in which the regression was so incomplete as to be inad-
missible as irrelevant.
Circuit courts have also utilized statistics but have
continually urged caution in their utilization even in jury
selection and Title VII cases. Also, the courts frequently
had other data on which to rely in addition to the statisti-
cal analyses. See United States v. Ironworkers Local 86,
443 F.2d 544 (9th Cir. 1971) : Wade v. Mississippi Coopera-
tive Extension Service, 528 F.2d 508 (5th Cir. 1976). The
circuit courts have also recognized that statistical evidence
can be part of the rebuttal case itself. The Fifth Circuit
Court of Appeals examined a Title VII case in which the
statistics relied upon by the plaintiff actnally formed the
very basis of the defendant’s rebuttal case, that is that
there was a showing that the statistics were not reliable.
Equal Employment Opportunity Commission v. Datapoint
Corporation, 570 F.2d 1264 (5th Cir. 1978). In that case,
the court noted ‘‘while statistics are an appropriate
method of proving a prima facie case of racial diserimina-
tion, such statistics must be relevant, material and mean-
ingful, and not segmented and particularized and fash-
ioned to obtain a desired conclusion.” Id. at 1269. See
11
also Johnson v. Uncle Ben’s Inc., 628 F.2d 419 (5th Cir.
1980).
Circuit courts have also noted that due to the ““in-
herently slippery nature of statisties’’ they are also sub-
ject to misuse. See Wilkins v. University of Houston, 654
F.2d 388 (5th Cir. Unit A 1981). In particular, that court
focused on the fact that even though multiple regression
analysis was a sophisticated means of determining the
effects of factors on a particular variable, such an analy-
sis was subject to misuse and should be employed with
great care. Id. at 402-3. Other courts have emphasized
that even though every conceivable factor did not have to
be considered in a statistical analysis, the minimum ob-
jective qualifications had to be included. in the analysis
(in an employment context). ‘‘[WThen the statistical evi-
dence does not adequately account for ‘the diverse and
specialized qualifications necessary for [the positions
In question],’ strong evidence of individual instances of
discrimination becomes vital . . . .’’ Valentino v. United
States Postal Service, 674 F.2d 56, 69 (D.C.Cir. 1982).
The Eleventh Circuit Court of Appeals has examined
statistical analyses and noted that the probative value of
multiple regressions depends upon the inelusion of all
major variables likely to have a large effect on the de-
pendant variable and also depends on the validity of the
assumptions that the remaining effects were not corre-
lated with independent variables included in the analysis.
The court also specifically questioned the validity of step-
wise regressions, such as those used in the instant pro-
ceedings. Eastland v. Tennessee Valley Authority, 704
F.2d 613, 621 n.11 (11th Cir. 1983). The court emphasized
12
that a study had to begin with a decent theoretical idea of
what variables were likely to be important.
Thus, examining a statistical analysis depends in part
on the question of whether the analysis incorporated the
requisite variables and whether there is an appropriate
theoretical base for the incorporation of the variables. As
found by the district court in the instant case, none of the
models utilized by Professor Baldus necessarily reflected
the way the system acted and specifically did not include
important factors, such as credibility of the witnesses,
the likelihood of a jury verdict, and subjective factors
which could be appropriately considered by a prosecutor
"and by a jury. Thus, the district court properly rejected
the statistical analyses in question.
More difficult problems arise with the attempted use
of statistics in death penalty cases. In 1968 problems were
" found with the utilization of statisties, specifically pre-
sented by Marvin Wolfgang. The circuit court concluded
that the study presented in that case was faulty for vari-
ous reasons, including failing to take variables into account
and failing to show that the jury acted with racial dis-
crimination. The court also emphasized that it was con-
cerned in that case with the defendant’s sentencing out-
come and only his case. The court concluded that the sta-
tistical argument did nothing to destroy the integrity of
the trial. Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968).
remanded on other grounds, 398 U.S. 262 (1970).
An additional factor in the death penalty situation
comes from the unique nature of the death sentence it-
self and the capital sentencing system. In McGautha v.
California, 402 U.S. 183 (1971), the Court noted the diffi-
13
culty in identifying beforehand those characteristics which
could be utilized by a sentencing authority in imposing
the death penalty and the complex nature of those fac-
tors. Other circuit courts have rejected statistical an-
alyses due to just such a reason. See Spinkellink v. Wain-
wright, 578 F.2d 582 (5th Cir. 1978) ; Smith v. Balkcom,
660 F.2d 584 (5th Cir. 1981), on rehearing, 671 F.2d 858
(5th Cir. Unit B, 1982); McCorquodale v. Balkcom, 525
F.Supp. 408 (N.D.Ga. 1981), affirmed, 721 F.2d 1493 (11th
Cir. 1983).
In cases upholding the constitutionality of various
death penalty schemes, the Court has recognized that it is
appropriate to allow a sentencer to consider every aspect
regarding the defendant and the crime in question in exer-
cising the discretion as to whether to extend mercy or im-
pose the death penalty. Thus, in Eddings v. Oklahoma,
455 U.S. 104 (1982) the Court noted that the rule set down
in Lockett v. Ohio, 438 U.S. 586 (1978) was a product of a
‘history reflecting the law’s effort to develop a system
of capital punishment at once consistent and principled
hut also humane and sensible to the uniqueness of the indi-
vidual.”” Eddings, supra at 110.
Other factors that have been recognized by courts as
being appropriate in a death penalty case and in the prose-
cutor’s discretion are the willingness of a defendant to
plead guilty. as well as the sufficiency of the evidence
available. Shaw v. Martin, 733 F.2d 304 (4th Cir. 1984).
As recently as 1986, this Court has acknowledged that in
a capital sentencing proceeding the jury must make a
‘““highly subjective, ‘unique, individualized judgment re-
warding the penalty that a particular person deserves.’ ’’
Caldwell v. Mississippi, 472 U.S. -—, 105 S.Ct. 2633, 2645-6
14
n.7 (1985); Turner ». Murray, — U.S. —, 106 S.Ct. 1683
(1986). In this context, ‘‘it is the jury that must make the
difficult, individualized judgment as to whether the de-
fendant deserves the sentence of death.” Turner v. Mur-
ray, supra 106 S.Ct. at 1687. This focuses on what has
long been recognized as one of the most important funec-
tions that a jury can perform, that is, ‘to maintain a link
between contemporary community values and the penal
system—a link without which the determination of punish-
ment could hardly reflect ‘the evolving standards of de-
cency that mark the progress of a maturing society.’ »’
Witherspoon v. Illinois, 391 U.S. 210, 519 n.15 (1968),
quoting, Trop v. Dulles, 356 U.S. 86, 101 (1958).
Thus, the myriad of factors that are available for
consideration by a prosecutor in exercising his discretion
and by a jury in determining whether to extend mercy to
a given defendant simply makes the utilization of these
types of statistical analyses unworkable in a death penalty
context. It is simply impossible to quantify subjective
factors which are properly considered both by the prosecu-
tor and by the jury in reaching these determinations. In
fact, the evidence in the instant case fails to take into ae-
count these subjective factors, including the information
known to the decision-maker, the likelihood a jury would
return a verdict in a particular case, the possible credi-
bility of individual witnesses. the availability of witnesses
at the time of trial, the actual sufficiency of the evidence
as determined by the prosecutor himself as well as num-
erous other factors.
In addition to all the above. commentators have also
recognized that many of the factors present in the instant
case cause problems with utilizing statistical analyses.
15
Professor Baldus himself has noted that ‘statistical so-
phistication is no cure for flaws in model construction and
research design.”” Baldus & Cole, 4 Comparison of the
Work of Thorsten Sellin and Isaac Ehrlich on the Deter.
rent Effect of Capital Punishment, 85 Yale L. J. 170,173
(1975). In that same article, Professor Baldus acknowl.
edged that the deterrent effect of capital punishment was
just such a type of study that would be best suited by
simpler methods of study than statistical analysis. Id.
Other authors have questioned the validity of statistical
methods which include inappropriate variables in the analy-
sis as well as those which fail to include necessary vari-
ables. See Finkelstein, The Judicial Reception of Muiti-
ple Regression Studies in Race and Sex Discrimination
Cases, 80 Colum. I.Rev. 737, 738 (1980). Other authors
have also agreed with the testimony of the experts in this
case regarding the problems presented by multicollinearity
as well as the problems in utilizing stepwise regressions.
See Fisher, Multiple Regression in Legal Proceedings, 80
. Colum. L.Rev. 702 ( 1980) ; See also G. Wesolowsky, Multi-
ple Regression Analysis of Variance (1976): A. Gold-
berger, Topics in Regression Analysis (1968).
Finally, certain authors have questioned the utilization
of statistical analyses even in employment diserimination
cases noting ‘‘it may be impossible to gather data on many
of these differences in qualifications and preferences.
Consequently, there will likely be alternative explanations,
not captured by the statistical analysis, for observed dis-
parities. . . . These alternative explanations must he taken
into consideration in assessing the strength of the in.
ference to be drawn from the statistical evidence.”” Smith
16
and Abram. Quantitative Analysis and Proof of Employ-
ment Discrimination, 1981 U.Ill. L.Rev. 33, 45 (1981).
Respondent submits that a consideration of the sta-
tistical analysis in the instant case reflects that it simply
fails to comply with the appropriate conventions utilized
for this type of analysis in that it fails to include appropri-
ate variables, fails to utilize interaction variables, fails
to specify a relevant model and has other fallacies, includ-
ing multicollinearity which render the analysis nonpro-
bative at best. As noted by a statistician in an article re-
garding race and sex discrimination and regression analy-
Sis:
It should be again emphasized that a statistical analy-
sis provides only a limited part of the total picture that
must be presented to prove or disprove diserimina-
tion. . . . “No statistician or other scientist should
ever put himself/herself in a position of trying to
prove or disprove discrimination.’’
McCabe, The Interpretation of Regression Analysis Re-
sults in Sex and Race Discrimination Problems, 34 Amer.
Stat. 212, 215 (1980).
II. THE STATISTICAL ANALYSES IN THE IN.
STANT CASE ARE INSUFFICIENT TO
PROVE RACIAL DISCRIMINATION.
As noted previously. courts and commentators have
expressed reservations about the use of statistics in at-
tempting to prove discrimination. Respondent submits
that even if the Court concludes statistical analysis is ap-
propriate in a death penalty context. the ‘““statistics’’ pre-
sented to the district court are so flawed as to have no pro-
17
bative value and, thus, cannot satisfy the Petitioner’s bur-
den of proof.?
Petitioner claims that the studies in question are the
product of carefully tailored questionaires resulting in the
collection of over 500 items of information on each case.
The Respondent has proven, and the district court found,
that the data bases are substantially flawed, inaccurate
and incomplete.
As noted previously, statistical analyses, particularly
multiple regressions. require accurate and complete data
to be valid. Neither was presented to the district court.
Design flaws were shown in the questionnaires utilized to
gather data. There were problems with the format of
critical items on the questionnaires, such that there was
an insufficient way to account for all factors in a given
case. ‘“An important limitation placed on the data base
was the fact that the questionnaire could not capture every
nuance of every case.”’ McCleskey v. Zant, supra at 356.
(J.A. 136).
Further, the sources of the information were notice-
ably incomplete. Even though the Petitioner insisted that
*It is clear that the findings by the district court in regard
to the question of intent and the evaluation of the statistical
analysis are subject to the clearly erroneous rule. In United
States v. United States Gypsum Co., 333 U.S. 364 (1948), the
Court acknowledged that the clearly erroneous rule set forth in
rule 52(a) of the Federal Rules of Civil Procedure applied to
factual findings. “A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the en-
tire evidence is left with the definite and firm conviction that a
mistake has been committed.” Id. at 395. This principle has been held to apply to factual findings regarding motivations
of parties in Title VII actions and it has been specifically held
that the question of intentional discrimination is 2 pure question of fact. Pullman-Standard v. Swint, 456 U.S. 273, 287-8 (1982).
18
he relied on State sources, obviously those sources were not
designed to provide detailed information on each case. As
found by the district court, ‘‘the information available to
the coders from the Parole Board files was very summary
in many respects.’”’ ¥ cCleskey v. Zant, supra at 356. (J.A.
137). These summaries were brief and the police reports
from which the Parole Board summaries were prepared
were usually only two or three pages long. (F.H.T. 1343:
J.A. 137). As found hy the district court:
Because of the incompleteness of the Parole Board
studies, the Charging and Sentencing Study contains
no information about what a prosecutor felt about the
credibility of any witnesses. R 1117. It was occasion-
ally difficult to determine whether or not a co-perpe-
trator testified in the case. One of the important
strength of the evidence variables coded was whether
or not the police report indicated clear guilt. As the
police reports were missing in 75% of the cases, the
coders treated the Parole Board summary as the po-
lice report. R 493-94. Then. the coders were able to
obtain information based only upon their impressions
of the information contained in the file. R 349.
McCleskey v. Zant, supra at 357. (J.A. 137).
Furthermore, questionaires were shown to be mis-
coded. It was also shown there were differences in judg-
ment among the coders. (F.H.T. 387).
Respondent also established that there were numerous
inconsistencies between the coding for the Procedural Re-
form Study and the Charging and Sentencing Study. (J.A.
77-80; S.E. 78; Respondent’s Exhibit 20A). These oc-
curred in some variables generally considered to be im-
portant in a sentencing determination.
19
A further problem with the data base is due to the
large number of unknowns. Although Petitioner claims to
have collected information on over 500 variables relating
to each case, the evidence showed that in the Charging and
Sentencing Study alone there are an average of at least 33
variables coded as unknown for each questionnaire. (.J.A.
139). A review of Respondent’s Exhibits Nos. 17A and 18A
shows the extent to which unknowns pervade the so-called
complete data base. For example, in the Charging and
Sentencing Study there are 445 cases in which it was un-
known if there was a plea bargain. (S.E. 73-74; J.A. 69-
74). Further complicating the data is the fact that Baldus
arbitrarily coded unknowns as if the information did not
exist without any knowledge as to whether the information
was known to the prosecutor or jury.
Even though attempts were made in the district court
to discount the unknowns, Petitioner did not succeed. In
fact the district court concluded the so-called ‘worst case’’
analysis failed to prove that the coding decisions on the
unknowns had no effect on the results. (J.A. 142). The
Respondent also introduced evidence that the correct sta-
tistical technique would be to discard the cases with un-
knowns in the variables being utilized in the analvsis and
not utilize the cases in the analysis.
The district court also concluded that no models of-
fered by the Petitioner were sufficiently predictive as to
be probative. (J.A. 149). As noted previously, regres-
sions must include relevant variables to be probative. See
3This is precisely the reason no independent model or re-
gression analysis was presented by the Respondent. The data
base was simply too flawed and eliminating cases with un-
knowns reduced the sample size to the extent that a valid
analysis was futile.
20
Bazemore 1». Friday, Supra. No model wag used which accounted for sever] significant factors because the in- formation was not in the data base, i.e., credibility of wit- nesses, likelihood of a jury verdict, strength of the evi- dence, ete.4 Many of the small-scale regressions simply
for their inclusion. Even the large-scale 230-variable re- gression has deficiencies. “It assumes that al] of the in- formation available to the data-gathers was available to each decision-maker in the system at the time that deci. sions were made, ’’ McCleskey ». Zant, supra at 361. (J.A. 146). This is simply an unrealistic view of the criminal justice system which fails to consider simple issues such as the admissibility of evidence. Further the adjusted
pendent variables in the model, even in the 230-variahle model, is only approximately OD. (JA. 147). Petitioner also fails to show the coefficients of a variables in the regressions.
Major problems are also presented due to multi- collinearity in the data. See Fisher, supra. (J.A. 105-111). Multicollinearity will distort the regression coefficients in an analysis. (J.A. 106). It was virtually admitted that there is a high correlation between the race of the vietim variable and many other variables in the study. According to the testimony of Respondent ’s experts. this was not accounted for bv any analysis of Baldus or Woodworth. Various experiments conducted by Dr. Katz confirmed the
ee —————————————
‘Although the second study purports to include strength of the evidence variables, there are such a high number of un-
«3
21
correlation between aggravating factors and white victim
cases and mitigating factors with black victim cases. See
F.H.T. 1472, et seq.; Respondent’s Exhibits 49-52. The
distriet court specifically found neither Woodworth or
Baldus had sufficiently accounted for multicollinearity in
any analysis.
Petitioner has asserted that there is an average twenty
point racial disparity in death sentencing rates which he
asserts should constitute a violation of the Eighth or Four-
teenth Amendments. As noted previously, the statistical
analyses themselves have not been found to be valid by
any court making such a determination; thus, this analy-
sis is questionable at best. Furthermore, focusing on the
so-called ‘‘twenty percentage point’’ effect misconstrues
the nature of the study presented. The twenty percentage
point ‘‘disparity’’ occurred in the so called ‘‘mid-range’’
of cases. This analysis attempted to exclude the most ag-
gravated cases from its consideration as well as the most
) mitigated cases. The analysis did not consider whether the
cases were actually eligible for a death sentence under state
law, but was a consideration of all cases in the study which
have been indicted either for murder or voluntary man-
slaughter.
A primary problem shown with the utilization of this
‘““mid-range’’ analysis is the fact that Petitioner failed to
prove that he was comparing similar cases in this analysis.
By virtue of the previously noted substantial variables
which were not included in the analysis, it can hardly be
determined that the cases were similar.
Further, this range of cases referred to by the Pe-
titioner was constructed based on the index method uti-
lized extensively by Professors Baldus and Woodworth.
+ 22
Dr. Katz testified for the Respondent concerning this in-
dex method and noted that an index is utilized to attempt
to rank different cases in an attempt to conclude that cer-
tain cases had either more or less of a particular attribute.
(J.A. 87). The numbers utilized in the comparisons men-
tioned above were derived from these indices and the num-
bers would ‘‘purport to represent the degree for a level of
aggravation and mitigation in each case for the purpose
of ranking these cases according to those numbers.’’ Jd.
Dr. Katz noted that Professor Baldus had utilized re-
gression analysis to develop the indices and had used a
predicted outcome to form the index for aggravation and
mitigation. Through a demonstration conducted by Dr.
Katz utilizing four sample regressions, it was shown that
the index method could he shaped to give different rank-
ings from the same cases depending on what variables
might be included in a particular regression. Through the
demonstration. Dr. Katz showed that by including dif-
ferent variables in the model, the actual values for the
index would change. [TThe purpose of this was to show
that at any stage, what is happening with the regression
in terms of the independent variables it has available to
it, is that it is trying to weigh the variables or assign co-
efficients to the variables so that the predicted outcomes
for the life sentence cases will have zero values and the
predicted outcomes for the death sentence cases will have
one value, regardless of the independent variables that
it has to work with.’’ (J.A. 98-9). The examination of
this testimony as well as the exhibits in connection there-
with shows that the index method itself is capable of mis-
use and abuse and. depending on the particular regression
equation ntilized, the index values can be different. No
23
adequate explanation was provided for the particular var-
lables included in the regression analysis so as to justify
utilizing the index values. Thus, it was simply not shown
that the cases being compared to develop this ‘‘mid-range’’
were actually similar. See McCleskey v. Zant, supra at
375-6. (J.A. 175).
Additionally, the .06 figure referred to by the Petition-
er does not represent a true disparity. The .06 so-called
‘‘disparity’’ does not reflect any particular comparison
of subgroups of cases. Further the .06 figure is a weight
which is subject to change when variables are added to
or subtracted from the model. (J.A. 233).
Regardless of the standard applied or the propriety
of utilizing statistics in the instant case, the above shows
that the data base is substantially flawed so as to be in-
adequate for any statistical analysis. Any results of any
such analysis are thus fatally flawed and prove nothing
about the Georgia criminal justice system.
III. THE ARBITRARINESS AND CAPRICIOUS.
NESS CONCERNS OF FURMAN V. GEORGIA,
408 U.S. 238 (1972), ARE REMOVED WHEN A
STATE PROPERLY FOLLOWS A CONSTITI. (~~
TIONAL SENTENCING PROCEDURE.
Throughout the history of Eighth Abendment juris-
prudence this Court has recognized, ‘‘[d]ifficulty would
attend the effort to define with exactness the extent of the
constitutional provision which provides that cruel and un-
usual punishments shall not be inflicted . ...”” Wilkerson
v. Utah, 99 U.S. 130, 135-6 (1878). Furthermore, ‘‘[t]he
cruelty against which the Constitution protects a con-
victed man is cruelty inherent in the method of punish-
En
ment, not the necessary suffering involved in any method
employed to extinguish life humanely.’’ Louisiana ex rel.
Framcis v. Resweber, 329 U.S. 459, 464, rhng. denied, 330
U.S. 853 (1947). Members of the Court have not agreed
as to the extent of the applicability of the Eighth Amend-
ment. In Trop v. Dulles, 356 U.S. 86 (1958), the Court de-
termined that the question was whether the penalty under
examination in that case subjected the individual to a fate
‘‘forbidden by the principle of civilized treatment guaran-
teed by the Eighth Amendment.”” Id. at 99. The Court
also went on to note that the Eighth Amendment was not
a static concept but that the amendment ‘‘must draw its
meaning from evolving standards of decency that mark
the progress of a maturing society.’”’ Id. at 101.
The Eighth Amendment embodies ‘‘broad and idealis-
tic concepts of dignity, civilized standards, humanity and
decency . . . .”” Estelle v. Gamble, 429 U.S. 97 (1976). In
Ingraham v. Wright, 430 U.S. 651 (1977), the Court
acknowledged that the Eighth Amendment prohibition
against cruel and unusual punishment circumscribed the
criminal process in three ways: (1) it limits the particular
kind of punishment that can be imposed on those con-
vieted; (2) the amendment proscribes punishment that
would be grossly disproportionate to the severity of the
‘erime; (3) the provision imposes substantive limits on
what can be made criminal and punished as such.
Not until Furman v. Georgia, 408 U.S. 238 (1972), was
the Court squarely confronted with a claim that the death
penalty itself violated the Eighth Amendment. The hold-
ing of the Court in that case was simply that the carrying
out of the death penalty in the cases before the Court con-
stituted cruel and unusual punishment. Id. at 239.
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In Gregg v. Georgia, 428 U.S. 153 (1976), this Court
specifically examined the Georgia death penalty scheme.
In so doing, the Court examined the history of the Eighth
Amendment and the opinion in Furman v. Georgia. The
Court noted that the Eighth Amendment was to be inter-
preted in a flexible and dynamic manner and that the
Eighth Amendment was not a static concept. The Court
went on to note, however, that the Eighth Amendment
“must be applied with an awareness of the limited role
played by courts.’” Id. at 174. In upholding the Georgia
statute, the Court acknowledged that Furman established
that the death sentence could not be imposed by sentencing
proceedings ‘‘that created a substantial risk that it would
be inflicted in an arbitrary and capricious manner.” Id. at
188. The Court compared the death sentences in Furman
as being cruel and unusual in the same way as being struck
by lightning would be cruel and unusual. The Court fur-
ther noted that Furman mandated that where discretion
was afforded to a sentencing body, that discretion had to
be suitably directed and limited so as to minimize the risk
of wholly arbitrary and capricious action. Finally, the
Court acknowledged that in each stage of the death sen-
tencing process an actor could make a decision which would
remove the defendant from consideration for the death
penalty. ‘‘Nothing in any of our cases suggests that the
decision to afford an individual defendant mercy violates
the Constitution. Furman held only that in order to mini-
mize the risk that the death penalty would be imposed on
a capriciously selected group of offenders, the decision
to impose it had to be guided by standards so that the
sentence authorized would focus on the particularized eir-
cumstances of the crime and defendant.” Gregg, supra
26
at 199. The Court further emphasized that ‘‘ [t]he isolated
decision of a jury to afford mercy does not render uncon-
stitutional a death sentence imposed upon defendants who
were sentenced under a system that does not create a sub-
stantial risk of arbitrariness or caprice . ... The propor-
tionality review substantially eliminates the possibility
that a person will be sentenced to die by the action of an
aberrant jury.”” Id. at 203. The Court finally found that
a jury could no longer wantonly and freakishly impose a
death sentence as it was always circumscribed by the
legislative guidelines.
The same time as the Court decided Gregg v. Georgia,
supra, it also decided Proffitt v. Florida, 428 U.S. 242
(1976). The Court again noted that the ‘‘requirements
of Furman are satisfied when the sentencing authority’s
discretion is guided and channelled hy requiring the ex-
amination of specific factors that argue in favor of or
against the imposition of the death penalty, thus eliminat-
ing total arbitrariness and capriciousness in its imposi-
tion.”’ Id. at 258.
Subsequently, the Court actually criticized states for
restricting the discretion of the juries, thus, outlawing
statutes providing for mandatory death sentences upon
conviction of a capital offense. See Woodson v. North
Carolina, 428 U.S. 280 (1976). The Court has also pro-
hibited death penalty procedures which restrict the con-
sideration of mitigating circumstances, consistently em-
phasizing that there must be an individualized considera-
tion of both the offense and the offender before a death
sentence could be imposed. Thus. in Lockett v. Ohio, 438
U.S. 587 (1978), the plurality noted that the joint opinion
in Gregg, Proffitt and other cases concluded that in order
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to comply with Furman the ‘‘sentencing procedure should
not create a substantial risk that the death penalty was
inflicted in an arbitrary manner, only that the discretion
be directed and limited so that the sentence was imposed
in a more consistent and rational manner. . ..”” Lockett,
supra at 397.
This Court has considered death penalty cases in an
Eighth Amendment context, but from a different perspec-
tive than the arbitrary and capricious infliction of a pun-
ishment as challenged in Furman. In Godfrey v. Georgia,
446 U.S. 420 (1980), the Court was concerned with a par-
ticular provision of Georgia law and the question of
whether the Georgia Supreme Court had followed the
statute that was designed to avoid the arbitrariness and
capriciousness prohibited in Furman. This Court essen-
tially concluded that the state courts had not followed
their own guidelines. This Court concluded that the death
sentence should appear to be and must be based on reason ~
rather than caprice and emotion. As the Georgia courts
had not followed the appropriate statutory procedures in
narrowing discretion in that case, the Court concluded
that the sentence was not permissible under the Eighth
Amendment. The Court did not deviate from its prior
holding in Gregg, supra, that by following a properly
tailored statute the concerns of Furnian were met.
The Court considered the death penalty in an Eighth
Amendment context in Enmund v. Florida, 458 U.S. 782
(1982). The Court, however, did not consider the ‘‘arbi-
trary and capricious’’ aspect but focused on the question
of the disproportionality of the death penalty for En-
mund’s own conduct in that case. Thus, the Court essen-
28
tially concluded that the death penalty was disproportion-
ate under the facts of that case.
In California v. Ramos, 463 U.S. 992, 999 (1983), the
Court noted that ‘‘ [i]n ensuring that the death penalty is
not meted out arbitrarily or capriciously, the Court’s prin-
cipal concern has been more with the procedure by which
the State imposes the death sentence than with substantive
factors the State lays before the jury as a basis for im-
posing death. . . .”” Thus, the Court again focused on the
state procedure in question and noted that excessively
vague sentencing standards could lead to the arbitrariness
and capriciousness that were condemned in Furman.
Further, in particular reference to the study in the
instant case, Justice Powell observed :
No one has suggested that the study focused on this
case. A ‘‘particularized’’ showing would require—
as I understand it—that there was intentional race
diserimination in indicting, trying and convicting [the
defendant], and presumably in the state appellate and
state collateral review that several times followed the
trial. . . . Surely, no contention can be made that the
entire Georgia judicial system, at all levels, operates
to discriminate in all cases. Arguments to this effect
may have been directed to the type of statutes ad-
dressed in Furman. As our subsequent cases make
clear, such arguments cannot be taken seriously un-
der statutes approved in Gregg.
Stephens v. Kemp, — U.S. —, 104 S.Ct. 562 n.2 (1983)
(Powell, JJ., dissenting from the granting of a stay of exe-
cution). Justice Powell went on to note ‘‘claims based
merely on general statistics are likely to have little or no
merit under statutes such as that in Georgia.” )Id.
29
Respondent submits that reviewing all of the Court’s
Eighth Amendment jurisprudence, particularly in the death
penalty context reflects that in order to establish a claim
of arbitrariness and capriciousness sufficient to violate
the cruel and unusual punishment provision of the Eighth
Amendment, it must be established that the state failed to
properly follow a sentencing procedure which was suffi-
cient to narrow the discretion of the decision-makers. As
long as the state follows such a procedure, the arbitrari-
ness and capriciousness which were the concern in Fur-
mam v. Georgia, supra, have been minimized sufficiently to
preclude a constitutional violation, particularly under the
Eighth Amendment. An Eighth Amendment violation
would result in the ‘‘arbitrary and capricious’’ context,
only if the statutory procedure either was insufficient it-
self or the appropriate procedures were not followed. Other
death penalty cases under the Highth Amendment deal
with different aspects of the cruel and unusual punish-
ment provision, such as disproportionality or excessive
sentences in a given case. That is simply not the focus
of the inquiry here. Under the circumstances of the in-
stant case. the Petitioner has not even asserted that Geor-
gia’s procedures themselves are unconstitutional, nor has
the Petitioner asserted that those procedures which were
approved in Gregg v. Georgia, supra, were not followed in
the instant case. Thus, there can be no serious contention
that there is an Highth Amendment violation under the
circumstances of this case. This is particularly true in
light of the testimony of Petitioner’s own expert that the
Georgia charging and sentencing system sorts cases om
rational grounds. (F.H.T. 1277; J.A. 154).
30
Insofar as the Petitioner would attempt to assert some
type of racial discrimination under the Eighth Amendment
provisions, there should be a requirement of a focus on
intent in order to make this sentence an ‘‘aberrant’’ sen-
tence so as to classify it as arbitrary and capricious. A
simple finding of disparate impact is insufficient to make
a finding of arbitrariness and capriciousness such as was
the concern in Furman, supra, particularly when a prop-
erly drawn statute has been utilized and properly followed.
Only a showing of purposeful or intentional discrimina-
tion can be sufficient to find a constitutional violation un-
der these circumstances.
No Eighth Amendment violation can be shown in the
instant case as Petitioner’s own witness testified that the
system acted in a rational manner. As shown by the
analyses conducted by Professor Baldus and Dr. Wood-
worth, the more aggravated cases were moved through the
charging and sentencing system and the most aggravated
cases generally received a death sentence. The more miti-
gated cases on the other hand dropped out at various
stages in the system receiving lesser punishments. Thus,
this system does function in a rational fashion. Further-
more, it has not been shown that the death sentence in the
instant case was arbitrary or capricious in any fashion.
The jury found beyond a reasonable doubt that there were
two statutory aggravating circumstances present. The
evidence also shows that the victim was shot twice, inelud-
ing once in the head at fairly close range. The evidence
tended to indicate that Petitioner hid and waited for the
police officer and shot him as the officer walked by. This
was an armed robbery by four individuals of a furniture
31
store in which several people were, in effect, held hostage
while the robbers completed their enterprise. It was thor-
oughly planned and thought out prior to the robbery occur-
ring. Furthermore, the Petitioner had prior convictions
for robbery before being brought to this trial. One of
Petitioner’s co-perpetrators testified against him at trial
and a statement of the Petitioner was introduced in which
he detailed the crime and even boasted about it. (J.A. 113-
115). Thus, under the factors in this case it is clear that
Petitioner’s sentence is not arbitrary or capricious and
there is clearly no Eighth Amendment violation.
IV. PROOF OF DISCRIMINATORY INTENT IS REQUIRED TO ESTABLISH AN EQUAL PROTECTION VIOLATION.
It is well recognized that “[a] statute otherwise neu-
tral on its face, must not be applied so as to invidiously
discriminate on the basis of race.” Washington v. Davis,
426 U.S. 229, 241 (1976), citing Yick Wo ©. Hopkins, 118
U.S. 356, 369 (1886). This Court has consistently recog-
nized, however, that in order to establish a claim of dis-
crimination under the Equal Protection Clause, there must
be proof that the challenged action was the product of dis-
criminatory intent. See Washington v. Davis, supra.
In 1962, the Court examined what was essentially an
allegation of selective prosecution and recognized, “the
conscious exercise of some selectivity in enforcement is not
in itself a federal constitutional violation.” Oyler v. Boles,
368 U.S. 448, 456 (1962). In cases finding an equal pro-
tection violation, it is consistently recognized that the hur-
den is on the petitioner to prove purposeful discrimination
under the facts of the case. See Whitus v. Georgia, 385
32
U.S. 545 (1967). The Court specifically has recognized
that the standard applicable to Title VII cases does not
apply to equal protection challenges. “We have never held
that the constitutional standard for adjudicating claims of
invidious racial discrimination is identical to standards
applicable under Title VIL. . ..” Washington v. Davis,
supra, 426 U.S. at 239. The Court went on in that case to
note that the critical purpose of the equal protection clause
was the “prevention of official conduct discriminating on
the basis of race.” Id. The Court emphasized that the
cases had not embraced the proposition that an official
action would be held to be unconstitutional solely because
it had a racially disproportionate impact without regard
to whether the facts showed a racially discriminatory pur-
pose. It was acknowledged that disproportionate impact
might not be irrelevant and that an invidious purpose
could be inferred from ‘the totality of the relevant facts,
including impact, but ‘‘[d]isproportionate impact . . .
is not the sole touchtone of an invidious racial diserimina-
tion forbidden by the Constitution. Standing alone it does
not trigger the rule [cit.] that racial classes are to be sub-
jected to the strictest serutiny. ...” Id. at 242.
Again in Castaneda v. Partida, 430 U.S. 482, 493
(1977), the Court held that “an official act is not uncon-
stitutional solely because it has a racially disproportionate
impact.” (emphasis in original). Further, “[p]lroof of
racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” Village
of Arlington Heights v. Metropolitan Housing Develop-
ment Corp., 429 U.S. 252, 265 (1977). In Washington v.
Davis the Court held that the petitioner was not required
to prove that the decision rests solely on racially diserim-
&
inatory purposes, but that the issue did demand a ‘‘sensi-
tive inquiry into such circumstantial and direct evidence
of intent as may be available.” Id; Village of Arlington
Heights, supra. “Absent a pattern as stark as that in
Gomillion’ or Yick Wo, impact alone is not determinative,
(footnote omitted) and the court must look to other evi-
dence.” Id. at 266. “In many cases to recognize the lim-
ited probative value of disproportionate impact is merely
to acknowledge the ‘heterogeneity’ of the Nation’s popu-
lation.” Id. at 266 n.135.
The Court also acknowledged that the Fourteenth
Amendment guarantees equal laws, not necessarily equal
results. Whereas impact may be an important starting
point, it is purposeful discrimination that offends the Con-
stitution. Personnel Administrator of Massachusetts v.
Feeney, 442 U.S. 256, 273-4 (1979). A diseriminatory pur-
pose “implies more than intent as volition or intent as -
awareness of the consequences. . . . It implies that the
decision makers selected or reaffirmed a particular course
of action at least in part because of not merely in spite
of its adverse effects on the identified group.” Id. at 279;
see also Wayte v. United States, — U.S. —, 105 S.Ct. 1524,
1532 (1985). The Court reemphasized its position in Rog-
ers v. Lodge, 458 U.S. 613 (1982), in which the Court rec-
ognized “the invidious quality of a law claimed to be ra-
cially discriminatory must ultimately be traced to a racially
discriminatory purpose,” and acknowledged that a showing
of discriminatory intent was required in all types of equal
protection cases which asserted racial diserimination.
SComillion v. Lightfoot, 364 U.S. 339 (1960).
He
Thus, it is clear from all of the above that a diserim-
inatory purpose, requiring more than simply an awareness
of the consequences, must be established in order to make
out a prima facie showing of discrimination under the
Equal Protection Clause, regardless of the type of equal
protection claim that is raised. The burden is on the in-
dividual alleging this discriminatory selection to prove the
existence of the purposeful discrimination and this includes
the initial burden of establishing a prima facie case as
well as the ultimate burden of proof.
In relation to the question of an Equal Protection vi-
olation, Petitioner has also failed to show intentional or
purposeful discrimination. The Petitioner presented evi-
dence to the district court by way of the deposition of
the district attorney of Fulton County, Lewis Slaton.
Throughout his deposition, Mr. Slaton testified that the
important facts utilized by his office in determining wheth-
er to proceed with a case either to indictment, to a jury
trial or to a sentencing trial, would be the strength of the
evidence and the likelihood of a jury verdict as well as
other facts. Mr. Slaton observed that in a given case there
could exist the possibility of suppression of evidence ob-
tained pursuant to an alleged illegal search warrant which
would also affect the prosecutor’s decision. (Slaton Dep. at
18). In determining whether to plea bargain to a lesser of-
fense, Mr. Slaton testified that his office would consider
how strong the case was, how the witnesses would hold up
under cross-examination, what scientific evidence was avail-
able, the reasons for the crime the mental condition of the
parties, prior record of the defendant and the likelihood of
what the jury might do. Id. at 30. As to proceeding to a
35
death penalty trial, Mr. Slaton testified that first of all the
question was whether the case fell within the ambit of the
statute and then he examined the atrociousness of the
crime, the strength of the evidence and the possibility of
what the jury might do as well as other factors. Id. at 31.
He also specifically noted that his office did not seek the
death penalty very often, for one reason because the juries
in Fulton County were not disposed to impose the death
penalty: Id. at 32. He also specifically testified he did
not recall ever seeking a death penalty in a case simply
because the community felt it should be done and did not
recall any case in which race was a factor in determining
whether to seek a death penalty. Id. at 78.
This is a case in which the Petitioner has in effect by
statistics alone sought to prove intentional discrimination.
Although Petitioner has alleged anecdotal evidence was
submitted, in fact, little, if any, was presented to the dis-
“trict court outside the deposition of Lewis Slaton and one
witness who gave the composition of Petitioner’s trial
jury. As noted previously, Respondent submits that sta-
tistics are not appropriate in this type of analysis and the
Petitioner’s statistics in this case are simply invalid: how-
ever, regardless of that fact any disparity noted is simply
not of the nature of such a eross disparity as to compel an
inference of diserimination, unlike earlier cases before the
court. See e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960).
Absent the ‘‘inexorable zero’’ or a gross disparity similar
to that, this type of evidence under the unique cirecumstane-
es of a death penalty situation should not be sufficient to
find an inference of discrimination, particularly when hoth
lower courts have found that no intentional discrimination
was proven. Thus, Respondent submits that regardless of
36
the standard utilized, Petitioner has failed to meet this
burden of proof.
Regardless of the standard used for determining when
a prima facie case has been established, it is clear where
the ultimate burden of proof lies. Under the circumstances
of the instant case, it is clear that the ultimate burden of
proof rested with the Petitioner and he simply failed to
meet his burden of proof either to establish a prima facie
case of discriminatory purpose or to carry the ultimate
burden of proof by a preponderance of the evidence.
37
CONCLUSION
For all of the above and foregoing reasons, the con-
victions and sentences of the Petitioner should be affirmed
and this Court should affirm the decision of the Eleventh
Circuit Court of Appeals.
Respectfully submitted,
Mary Bere WESTMORELAND
Assistant Attorney General
Counsel of Record for Respondent
MicHAEL J. BowErs
Attorney General
Marron O. Gorpon
First Assistant Attorney General
Worm B. Hor, Jr.
Senior Assistant Attorney General
Mary Bere WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 3033+
(404) 656-3349
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY, :
Petitioner,
vs. : CIVIL ACTION
NO. C87-1517A
RALPH M. KEMP, Superintendent
Georgia Diagnostic and
Classification Center, 2 fi
Respondent. : (ve ha,
or
I. INTRODUCTION.
Petitioner Warren McCleskey, convicted and sentenced to
death in October 1978 for the murder of Police Officer Frank
Schlatt during the course of a furniture store robbery! petitions
this court for a writ of habeas corpus on seven separate grounds:
(1) that the state's non-disclosure of critical impeachment
evidence violated his due process rights (the Giglio claim); 3
that his capital sentence was tine product of intentional racial
discrimination in violation of hi; eighth amendment and equal
protection rights (the intentionecl discrimination claim): (3)
that the trial court's denial of fuads to employ experts in his
defense violated his due process rights (the Ake claim); (¢) that
the use of the petitioner's alleged statements to a jailhouse
informant violated his sixth amendment and due process rights
(the Massiah claim) i (p) that the state's failure to correct a
AO 72A ©
(Rev. 8/82)
witness's misleading testimony violated his eighth amendment and
due process rights (the Mooney claim); (6) that the state's
reference to appellate review in its closing argument violated
his eighth amendment and due process rights (the Caldwell claim);
and ©. that the state's systematic exclusion of black jurors
violated his sixth amendment and equal protection rights (the
Batson claim).
For the reasons discussed below, the petition for a writ of
habeas corpus will be granted as to the Massiah claim but denied
as to all other claims. In Part 11 of this order the court will
detail the history of the petitioner's efforts to avoid the death
penalty. Then, because the successive nature of this petition
dominates the court's discussion and will be dispositive of many
of the issues raised by the petition, Part III will set out the
general principles of finality in habeas corpus actions. Next,
the court will address each of the seven claims raised in this
petition; first, the successive claims in Part IV (the Giglio,
intentional discrimination, and Ake claims) and then the new
claims in Part V (the Massiah, Mooney, Caldwell, .and Batson
claims). Finally, in Part VI, the court will address the peti-
tioner's other pending motions -- a motion for discovery and a
motion to exceed page limits.
II. HISTORY OF PRIOR PROCEEDINGS.
The petitioner was convicted and sentenced in the Superior
Court of Fulton County on October 12, 1978. The convictions and
sentences were affirmed by the Supreme Court of Georgia.
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McCleskey v. State, 245 Ga. 108 (1980). The United States
Supreme Court then denied a petition for certiorari, McCleskey v.
Georgia, 449 U.S. 891 (1980). On December 19, 1980, the peti-
tioner filed an extraordinary motion for a new trial in Fulton
County Superior Court, but no hearing has ever been held on that
motion. On January 5, 1981 the petitioner filed a petition for
writ of habeas corpus in the Butts County Superior Court. On
April 8, 1981, that court denied all relief. On June 17, 1981
the Georgia Supreme Court denied the petitioner's application for
a certificate of probable cause to appeal. The United States
Supreme Court again denied a petition for a writ of certiorari.
McCleskey v. Zant, 454 U.S. 1093 (1981).
McCleskey filed his first federal habeas corpus petition in
this court on December 30, 1981. This court held an evidentiary
hearing in August and October 1983 and granted habeas corpus
relief on one issue on February 1, 1984. McCleskey v. Zant, 580
F. Supp. 338 (N.D.Ga. 1984). The Eleventh Circuit reversed and
cer.ied the habeas corpus petition on January 29, 1985. McCleskey
Vv. Kemp, 753 F.2d 877 {llth Cir. 1985) (en banc)... This time the
United States Supreme Court granted certiorari and affirmed the
Eieventh Circuit on April 22, 1987. McCleskey v. Kemp, U.S.
’ ey. 107 8.Ct, 1736, Deticion for rehearing denied, U.S.
107 S.Ct. 3199 (1987). McCleskey filed a successive petition for
a writ of habeas corpus in the Butts County Superior Court on
June 9, 1987, and a First Amendment to the Petition on June 22,
1887 (Civil Action No. 87-V-1028). That court granted the
AQ 722A ©
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state's motion to dismiss the petition on July 1, 1987. The
Georgia Supreme Court denied the petitioner's application for a
certificate’ of probable cause to appeal on July 7, 1987 (Ap-
plication No. 4103). ) ?
this court issued an order on June 16, 1987 making the
mandate of the Eleventh Circuit the judgment of this court and
lifting the stay of execution that had been entered when the
first federal habeas corpus petition was filed. OA July 7, 1987
McCleskey filed the present petition for a writ of habeas corpus,
a request to proceed in forma pauperis, a motion for discovery,
and a motion for a stay of execution. The court granted the
request to proceed in Sous Hal 5 and held an evidentiary
hearing on the petition on July and 9, 1987. At that time, the
court granted the motion for a stay of execution. The court took
further evidence in a hearing af AuguseTo, 1987 and, at the
close of the evidence, requested post-hearing briefs from the
parties. Those briefs have since been filed and the petitioner's
claims are ripe for determination.
ITI. THE DOCTRINE OF FINALITY IN HABEAS CORPUS PETITIONS.
Although successive petitions or a writ of habeas corpus
are not subject to the defense of res judicata, Congress and the 58 OF Iss 1
courts have fashioned a Ah doctrin € finality” which
precludes a determination of erits of a successive petition
under certain circumstances. Bass v. Wainwright, 675 F.2d 1204,
1206 (llth Cir. 1982). In particular, Congress has authorized
‘the federal courts to decline to address the merits of a peti:ion
AQO72A ©
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if the claims contained therein were decided. upon the merits
previously or if any new grounds for relief that are asserted
should have been raised in the previous petition. 28 USC
§2244(a) & (b). The habeas rules have described these distinct
applications of the doctrine of finality as follows:
A second or successive petition may be
dismissed if the judge finds that it &&ils to
~——allege new or eer Mh rcunags for relief
andthe prt i on was on the merits
a if new and different grounds are alleged,
the judge finds that the failure of the
petitioner to assert those ds—in a prior
petition constituted an afuse of the FE.
28 USC foll. $2254, Rule 9(b).
A purely successive petition or successive claim raises
issues which have been decided adversely on a previous petition.
The court may take judicial notice of allegations raised by a
previous petition. See Allen v. Newsome, 795 F.2d 934, 937 (llth
Cir. 1986). Rule 9(b) requires that the issue raised by the
previous petitio ave been decided d&dversel to the
petitioner on the me before the doctrine of finality obtains.
A merits determination need not be a determination made after «n
evidentiary hearing if the facts material to the successive cla:m
were undisputed at the time of the previous petition. Bass, €75
F.24 at 1
successive petition may be distinguished from the
doctrine:
second category of petitions subject to the finalit
petitions alleging new claims that may be an Yabuse of the writ."
28 USC §2244(b); 28 USC foll, $2254, Rule 9(Dbh). ate: has
AC T2A ©
(Rev. 8/82)
the burden of pl urden then shifts
to the petitioner to show that he has not abused the writ. Price
33 . ; see also Allen v.
¥, ‘Johnston,
Newsome, 795 P.24 934, 938-39 (llth Cir. 1986). To meet his
burden, a petitioner must "give a glood excuse for not having
raised his claims previously.’ oN Alle 794 P.24 at 939... An
_evidentiary hearing on an abuse of the writ defens not
necessary if the reco ords an adequate basis for decisio
Price, 334 U.S. at 292-93,
As this circuit has articulated the issue presented by an
abuse of the writ defense, "la] district court need not consider
i ——
a Claim raised for the Fires time in a sec
abeas petition,
unless the petitioner establishes that the failure to rai he
claim earlier was not the result of intentional abandonm or
" Adams v. Dugger, 816 F.2d
hholding or inexcusable negle
1493, 1494 (llth Cir. 1987) (citations omitted). See also Moore
Vv. Kemp, 824 P.24 847, 851 {llth Cir. 1987). There are a number
of instances in which failure to raise an iss
peti:ion is xcusabils’ a retroactive change in t
8 USC foll. §2254, Rule 9
in a prior
law and newly
discovered ing are examples.’
Advisory Committee Notes. See, e.g., Ritter v. Thigpen, 828 F.2d
662, 665 (llth Cir. 1987): Adams, 816 F.24 at 1493. Of course,
failure to discover evidence supportive of a claim prior to the
first petition may itself constitute inexcusable neglect or
AQ72A © (Rev. 8/82)
deliberate bypass. Cf. Freeman v. Georgia, 599 F.2d 65, 71-72
(5th Cir. 1979) (no procedural default where petitioner was
misled by police and could not have uncovered evidence supportive
ssive or, dfcit is
ourt may consider the
of a claim in any event).?
"Even if a particular claim\is truly succe
a new claim, is an ab
merits of the claim if "the\ends of justige" would be served
thereby. See Sanders v. Unite es, 1373 L.S. 1, 16 (1963)
(Successive claim); id. at 18 (nev slain); Smith v. Kemp, 715
P.2d 1459, 1468 (llth Cir. 1983) (successive claim); Moore v.
Kemp, 824 F.2d at 856 (new claim). The burden is upon the
Retr, :
“ petitiones to show that the ends of justice would be served.
Sanders, 373 U.S. at 17.
The "ends of justice" exception has been subject to dif-
fering interpretations. The Court in Sanders suggested some
circumstances in which the "ends of justice" would be served by
re-visiting a successive claim:
If factual issues are involved, “the_applicant
is entitled to a new hearing upon a
that the evidentiaiy h g on the
application was not £ and fair
canvassed the criteria of a and fair
evidentiary hearing recently in Townsend v.
Sain, [372 0.8. 293 {1963)), and that
discussion need not be repeated here. If
purely legal questions are involvedy ©
applicant may be itle new hearing
upon showing an El aw
or some other justification for having failed
.to raise a crucial point or argument in the
prior application. vas [T]he foregoing
enumeration is not intended to be exhaustive;
the test is "the ends of justice" and it
cannot be too finely particularized.
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(Rev. 8/82)
373 U.S. at 16-17. This circuit has traditionally followed the
Sanders articulation of the "ends of justice" exception. See,
e.g., Moore.v. Kemp, 824 F.24 at 856; Smith v. Kemp, 715 F.24 at
1468.
‘A plurality/of the Supreme Court recently challenged this
open-ended definition of "the ends of justice," arguing that a
successive claim should not be addressed unles
"supple s his constitutional claim with a cslorable owing of
l inngetnce." Kuhlmann v. Wilson, U.S. ; 106 S.Ct.
2616, 2627 (1986) (Opinion of Powell, J., joined by Burger,
Rehnquist, and O'Connor, JJ.). Under this definition of the
"ends of justice," the petitioner "must make his evidentiary
showing even though ... the evidence of guilt may have been
unlawfully admitted.” Id. That is, petitioner must "show a fair
probability that, in light of all the evidence, including that
alleged to have been illegally admitted (but with due regard to
any unreliability of it) and evidence tenably claimed to have
been wrongfully excluded or to have become available only after
trial, the trier of facts would have entertained a reasonable
doubt of his guilt." Id. n. 17 (quoting Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 3¢
U.Chi.L.Rev. 142 (1970)).
‘Following Kuhlmann, "[i]t is not certain what standards
should guide a district court in determining whether the 'ends of
justice' require the consideration of an otherwise dismissable
successive habeas petition." Moore, 824 F.2d at 856. The
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Eleventh Circuit, in Moore, declined to decide "whether a
colorable showing of factual innocence is a necessary condition
— rr ——
: . . . Er . .
demand consideration of the mer of a claim on a ccessive
peti where there is a ‘olorable showing ef—factual imno-
cence." / Id.
i. PETITIONER'S SUCCESSIVE CLAIMS.
Three of the petitioner's claims in this second federal
habeas petition duplicate claims in the first federal petition
and are therefore truly successive claims that should be dis-
missed according to the dictates of Rule 9(b) nless the peti-
tioner can show that the "ends of justice" justify re-visiting
the claims. gach claim will be discussed in turn.
A. Giglio Claim.
Petitioner's Giglio claim is based upon the state's failure
to disclose its agreement with a witness, Offie Evans, which led
him to testify against petitioner at trial. McCleskey argues
that the state's failure to disclose the promise by a police
detective to "speak a word" for Offie Evans with regard to an
escape charge violated McCleskey's due process rights under
Giglio v. United States, 405 U.S. 150 (1971). Giglio held that
failure to disclose the possible interest of a government witness
will entitle a defendant to a new trial if there is a reasonable
likelihood that the disclosure would have affected the judgment
of the jury. - Id. at 154. This court granted labeas corpus
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(Rev. 8/82)
relief on this claim in passing upon the first federal habeas
petition, but the Eleventh Circuit reversed en banc. McCleskey
v. Zant, 580 P. Supp. at 380-84, rev'd sub nom. McCleskey'v,
Kemp, 753 F.2d at 885.
respenditer
‘McCleskey argues that the ends of justice require re-
visiting his Giglio claim for three reasons. He argues that the
discovery of a written statement by Offie Evans provides new
evidence of a relationship between Offie Evans and the state
supportive of a finding of a quid ‘pro gug for Offie Evans’
testimony. He also proffers the affidavit testimony of jurors
ie ———
who indicate that they might have reached a different verdict had
they known the real interest of Offie Evans in testifying against
petitioner. Finally, petitioner contends that there has been a
change in.tas-law regarding the materiality standard for a
finding of a Giglio violation. il |
None of these arguments is sufficient to justify re-visiting
the Giglio claim. The written statement of Offie Evans offers no
new evidence of an agreement hy state authorities to do Offie
Evans a favor if he would testily against petitioner. Conse-
quently, the conclusion of the Eleventh Circuit that the de-
tective's romise did not amount to a romise of lenienc Pp p
triggering Giglio is still valid. See McCleskey v. Kemp, 753
F.2d at 885. Because the threshold showing of a promise still
has not been made, . the ends of justice would not be served by
allowing petitioner to press this claim again.
“10
Petitioner also has no newly discovered evidence with
respect to the materiality of the state's failure to disclose its
arrangement with Offie Evans. The affidavit testimony of the
jurors is not evidence that petitioner could not have obtained at
the time of the first federal habeas petition. In any event, a
juror is generally held incompetent to testify in impeachment of
a verdict. Fed. R. Fvid. 606{(b); Proffitt 'v, Wainwright, 685
P.2d11227,:1255 (11th Cir. 1982). ‘See densrally McCormick on
Evidence §608 (3d Ed. 1984).
Finally, petitioner can point to no change in the law on the
standard of materiality. The Eleventh Circuit concluded in this
case that there was "no 'reasonable likelihood' that the State's
failure to disclose the detective's [promise] affected the
judgment of the jury." McCleskey, 753 F.2d at 884. The same
standard still guides this circuit in its most recent decisions
on the issue. See, e.qg., United States v. Burroughs, No.
86-3566, Slip Op. at 381 (lith Cir., Nov. 33,1987): Browr, 785
F.2d at 1464 (citing McCleskey v. Kemp, 753 F.2d at 885).
B. Intentional Discrimination Claim.
Having lost in the Supreme Court3 on his contentions re-
garding the Baldus Study, the petitioner nevertheless—tretied—it-
Qut to support the more narrow contention that McCleskey was
singled out both because he is black and because his victim was
white. AOT2A © -" ~~
(Rev. 8/82) hi
AO72A ©&
(Rev. 8/82)
The Baldus Study is said to be the most ambitious yet. It
is. The part of it that is ambitious, however -- the 230-vari-
able model structured and validated by Dr. Baldus -- did not
adduce one smidgen of evidence that the race of the defendants or
the acd of the victims had any effect on the Georgia prose-
cutors' decisions to seek the death penalty or the juries'
decisions to impose it. The model that Dr. Baldus testified
accounted for all of the neutral variables did not produce any
"death-odds multiplier" of 4 or 6 or 11 or 14 or any of the other
numbers which the media have reported.
To be sure, there are some exhibits that would show discrim-
ination and do‘'contain such multipliers. But these were not
produced by the "ambitious" 230-variable model of the study. The
widely-reported "death-odds mult] produced instead by
1 irk y-dtnk
m——
arbitrarily structured li gressions that
accounted for only a few variables. They are of the sort of
statistical analysis given short shrift by courts and social
scientists alike in the past. They prove nothing other than the
ruth of the adage that anything may be proved by statistics. —
™
The facts are that the only evidence of over-zealousness or
pa
improprieties by any person(s) in the law enforcement estab-
lishment points to the black case officers of the Atlanta Bureau
of Police Services, 4 which was then under the leadership of a
black superior who reported to a black mayor in a majority black
city. The verdict was returned by a jury on which a black person
‘sat and, although McCleskey has adduced affidavits from jurors on
=12=- /
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(Rev. 8/82)
other subjects, there is no evidence that the black juror voted
for conviction and the death penalty because she was intimidated
by the white jurors. It is most unlikely that any of these black
citizens who played vital roles in this case charged, convicted
or sentenced McCleskey because of the racial considerations
alleged.
There is no other evidence that race played a part in this
case.
Ce Ake Claim.
Petitioner's last truly successive claim is based upon the
trial court's denial of his request for the provision of funds
for experts, particularly for a ballistics expert. Petitioner
alleges that this ruling by the trial court denied him his right
to due process of law as guaranteed by the fourteenth amendment.
Petitioner raised this same claim in the first federal habeas
petition and this court held that the claim was without merit.
McCleskey v. Zant, 580 F. Supp. at 388-89 (citing Moore v. Zant,
722: 7.24 640 (llth Cir. 1983)). At that time the law held that
the appointment of experts was generally a matter within the
discretion of the trial :jidge and could not form the basis for a
due process claim absent a showing that the trial judge's
decision rendered the defendant's trial fundamentally unfair.
Moore, 722 F.2d at 648. With that case law in mind, this court
concluded that the state trial court had not abused its dis-
cretion because the petitioner had the opportunity to subject
-1l3-
the state's ballistics expert to cross-examination and because
there was no showing of bias or incompetence on the part of the
state's expert. McCleskey v. Zant, 580 F. Supp. at 389.
Arguing that the ends of justice require re-visiting the
claim, petitioner points to the cases of Ake v. Oklahoma, 470
U.S. 68, 83 (188%) and Caldwell v. Mississippi, 472 U.S. 320, 323
n. 1 (19835) (plurality), as examples of a change in the law
regarding the provision of experts. It may be that these cases
did change the law; this matter, which was traditionally thought
to rest within the dlsCretion of state trial judges, now has
heightened constitutional significance. Compare Moore v. Zant,
722 7.24 at 643, with Moore v-—Kemp, 809 E.2d 702, 709-12 {11th
Cir. 1987).
Even so, this new law does not justify re-vigiting this
claim. e new Supreme Court Cases require "that a defendant
must show the trial court that there exists a rgdsona roba-
bility Both that an expert would be of assistance to the defense
and ial of expert assistance would result Tanda
ee a Thus, if a defendant wants an exper: to
assist his attorney in confronting the prosecution's DEgoL: ... he
must inform the court of the nature of the prosecution's case and
how the requested enphEt would be Sere: "—Moore v. Kemp, 809
/F. 2a at 27 A review of the state trial record indicates
petitioner did nothing more than generally refer to the extensiv
7 CL am—
expert testimony available to the state. Petitioner then
specif [CETL requested the Conc intent of a psychiatric expert.
AOT2A © -14- (Rev. 8/82) 7
AOA ©
(Rev. 8/82)
The petitioner never specifically requested the appointment of a
ballistics expert, nor did he make the showing that this circuit
has held is required by Ake and Caldwell. The state trial court
could hardly have been expected to appreciate the importance of a
ballistics expert to petitioner's case if petitioner himself
neither requested such an expert nor explained the significance
of such an expert to the court.
V. PETITIONER'S NEW CLAIMS.
A. Massiah Claim.
l. Findings of Fact.
Petitioner relies primarily on the testimony of Ulysses
Worthy before this court and the recently disclosed written
statement of Offie Evans to support his Massiah claim. Ulysses
Worthy, who was captain of the day watch at the Fulton County
Jail during the summer of 1978 when petitioner was being held
there awaiting his trial for murder and armed robbery, testified
before this court on July 9 and August 10, 1987. The court will
set out the pertinent parts of that testimony and then summarize
the information it reveals.
On July 9, Worthy testified as follows: He recalled
"something being said" to Pvars by Police Officer Dorsey or
another officer about engaging in conversations with McCleskey
yIT or, 147-49).5 He remembered a conversation, where Detective
Dorsey and perhaps other officers were present, in which Evans
was asked to engage in conversations with McCleskey (II Tr. 150).
w}5w
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Later, Evans requested permission to call the detectives (II Tr.
151). Assistant District Attorney Russell Parker and Detective
Harris used Worthy's office to interview Evans at one point,
which could have been the time they came out to the jail at
Evans’ request (Id.).
In other cases, Worthy had honored police requests that
someone be placed adjacent to another inmate to listen for
information (II Tr. 152); such requests usually would come from
the officer handling the case (Id.); he recalled specifically
that such a request was made in this case by the officer on the
case (IT Tr. 153). Evans was put in the cell next to McCleskey
at the request of the officer on the case (Id.); "someone asked
[him] to specifically place Offie Evans in a specific location in
the Fulton County Jail so he could overhear conversations with
Warren McCleskey," but Worthy did not know who made the request
and he was not sure whether the request was made when Evans
first came into the jail (Il Tr. 153-54); he did not recall when
he was asked to move Evans (II Tr. 155-56).
On August 10, 1987 Worthy testified as follows: Evans was
first brought to his attenticn when Deputy Hamilton brought Evans
to Worthy's office because Evans wanted to call the district
attorney or the police with "some information he wanted to pass
to them" (III Tr. 14). The first time the investigators on the
Schlatt murder case talked to Evans was "a few days" after Evans’
call (III Tr. 16-17). That meeting took place in Worthy's office
(III Tr. 17). Worthy was asked to move Evans "from one cell to
lB
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another” (TIX Tr. 18). Worthy was RAR Sake’ whe asked, "but it
would have had ... to have been one of the officers," Deputy
Hamilton, or Evans (III Tr. 18-19). Deputy Hamilton asked
Worthy to move Evans "perhaps 10, 15 minutes" after Evans'
ntsctiav with the investigators (III Tr. 20). This was the
first and only time Worthy was asked to move Evans (Id.). Deputy
Hamilton would have been "one of the ones" to physically move
Evans (III Tr. 22). Worthy did not know for a fact that Evans
was ever actually moved (Id.). The investigators later came out
to interview Evans on other occasions, but not in Worthy's
presence (III Tr. 23). Neither Detectives Harris, Dorsey or
Jowers nor Assistant District Attorney Parker ever asked Worthy
LO. move Evans (III Tr. 24).
On cross-examination, Worthy re-affirmed portions of his
July 9 testimony: He overheard someone ask Evans to engage in
conversation with McCleskey at a time when Officer Dorsey and
another officer were present (III Tr. 32-33). Evans requested
permission to call the investigators after he was askec to Sn35Ca
in conversation with McCleskey (III Tr. 33). Usuall’ the case
officer would be the one to request that an inmate be: moved and
that was the case with Evans, though he does not know exactly who
made the request (III Tr. 16-48), Worthy also cont iiiekay
portions of his July 9 testimony, stating that the interview at
which Assistant District Attorney Parker was present was the
first time Evans was interviewed and that Worthy had not met
Officer Dorsey prior to that time (III Tr. 36). On further
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.. McCleskey had been saying, and that he had been asking McCle
cross—-examination, Worthy testified as follows: Deputy Hamilton
was not a case officer but was a deputy atthe jail (111 Tr. 49).
When Worthy testified on July 9 he did not know what legal issues
were before the court (III Tr. 52-53). After his July rents ~
~~.mony he met with the state's attorneys on two occasions /for a
—————
Te — —— —
total of forty to fifty minutes (III rr. 53- 4% After his
or
Ce —
July 9 testimony he read a local newspaper actiole gentioning him
(IXI Tr. 56).
In response to questions from the court, Worthy stated that
he was satisfied that he was asked for Evans "to be placed near
McCleskey's cell," that "Evans was asked to overhear™ cCleskey
talk about this case," and that Evans was a
information from" MoT TERI (ITT To. 64-43). Worthy walHTETY d
that these requests were made on the date that Assistant
District Attorney Parker interviewed Evans, but he could not |
explain why the investigators would have requested a move on the
same day that Evans had already told the investigators that he
was next to McCleskey, that he had been listening -to what
~~
~~
questions—III Tr. 64). ar
In summary, Worthy never wavered from the fact that someone,
The request to move Evans, the move, Evans'
nce:
call the investigators, the Parker interview, and other late
interviews. Worthy's August 10 testimony indicates a differen
-18~=
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len that he was already in the cell adjacent to McCleskey's.
sequence: Evans' request to call the investigators, the Parker
interview, the request to move Evans by Deputy Hamilton, and
: ¥,
other later interviews. Worthy's testimony is inconsistent on
oe
Officer Dorsey's role in requesting the move, on whether Deputy
Hamilton requested the move, and on whether the request to move
Evans preceded Evans' request to call the investigators. Worthy
has no explanation for why the authorities would have requested
to move Evans after the Parker interview, at which Evans made it
rer
All of the law enforcement personnel to whom Worthy informed
-- Deputy Hamilton, Detectives Dorsey, Jowers and Harris, and
Assistant District Attorney Parker -- flatly denied having
requested permission to move Evans or having any knowledge of
such a request being made (III Tr. 68-71; 80-81, 95; 97-98;
102-037 111-12, 116). It is undisputed that Assistant District
Attorney Parker met with Evans at the Fulton County Jail on only
one occasion, July 1, 1978, and that Evans was already in the
cell next to McCleskev's at that time { I Tr. 11314; 71
Petitioner also relies on Eva
twenty-one ement
to the Atlanta Police Department, dated August: 1, 1978, in
support of his claim that the authorities deliberately elicited
incriminating information from him in violation of his sixth
amendment right to counsel. Evans' statement relates conversa-
tions he overheard between McCleskey and McCleskey's co-defendant
DuPree and conversations between himsels and McCleskey from
July 9 to July 12, 1978. McCleskey's statements during the
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course of those conversations were hi§hly ri Tg In
support of his argument that the authorities instigated Evans'
information gathering, McCleskey points to the methods Evans used
to secure McCleskey's trust and thereby stimulate incriminating
conversation. Evans repeatedly lied to McCleskey, telling him
that McCleskey's co-defendant, Ben Weight, was. Evans' nephew;
that Evans' name was Charles) that Ben had told Evans about
McCleskey; that Evans had seen Ben recently; that Ben was
accusing McCleskey of falsely identifying Ben as the "trigger
man" in the robbery; that Evans "used to stick up with Ben too;"
that Ben told Evans that McCleskey shot Officer Schlatt; and that
Evans was supposed to have been in on the robbery himself.
In addition, McCleskey argues that Evans' knowledge that
McCleskey and other co-defendants had told police that co
defendant msiane was the trigger person demonstrates Evans'
collusion with the police since that fact had not been made
public at that time. Finally, McCleskey points to two additional
pieces of evidence about Evans' relationship with the police:
Evans testified at McCleskey's trial that he had talked to
Se about the case before he talked to Assistant
Distrid orney Parker (Pet. Exh. 16 at 119); and Evans had
acted as an informant for Detective Dorsey before (II Tr. 52-3).
e factual issue for the court to resolve is sim
Either the authorities moved Evans
McCleskey's in an ef
eA 1 TO
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Evans was not moved, that he was in the adjoining cell fortu-
itously, and that his conversations with McCleskey preceded his
contact with the authorities. orthy's testimony is often
confused and self-contradictory, it is directly contrary to the
cost ilony of Deputy Hamilton and Detective Dorsey, it is contrary
to Evans' testimony at McCleskey's trial that he was put in the
adjoining cell "straight from the street" (Trial Tr. 873), and it
is contrary to the opening line of Evans' written statement
which says, "1.am in the Fulton County Jail cell #1 north 14
where I have been since July 3, 1978 for escape." Worthy himself
testified that escape risks where housed in that wing of the jail
{III Pr. "13=14). Moreover, the use of Evans as McCleskey
alleges, if it occurred, developed into a complicated scheme to
violate McCleskey's constitutional rights -- its success required
Evans and any officers involved to lie and lie well about the
circumstances. For these reasons, the state asks this court to
reject Worthy's testimony that someone requested permission to
move Evans next to McCleskey's cell. fiom
oo -
After carefully considering the substance of Worthy's
/
testimony, his demeanor, and the other relevant evidence in /this
A \
case, the court concludes that it cannot reject Wor Ss testi-
mony about the fact of a request t € Evans. The: fact
that someone, at some point, requested his permission to move
Evans is the one fact from which Worthy never wavered in his two
days of direct and cross-examination. The state has introduced
no affirmative evidence that Worthy is either lying or mistaken.
-21- /
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e lack of corroboration by other witnesses is not surprisingy
the other witnesses, like Assistant District Attorney Parker, had
Dorsey, had an obvious interest in concealing any such ar
t
ST
Worthy, by contrast, had no apparent interest or bias that men
would explain SRY consolods deception. Worthy's testimony that
he was asked to move Evans is further Con by Evans'
testimony that he talked to Detective Dorsey before he talked to
Assistant District Attorney Parker and by Evans' apparent
knowledge of details of the robbery and homicide known only to
the police and the perpetrators.
Once it 1s accepted that Worthy was asked for permission to
move Evans, the conclusion follows swiftly that the sequence of
ee
events to which Wo testified originally must be-the correct
\\
i<€., the request to move Evans, the move, Exans'
sequence;
t to call the investigators, the Parker interview, and
ter interviews. There are two other possgib con~-
clusions about the tiiing of ETE euest to move Evans, but
neither is tenable.( Tiurgt, the request to move Evans could have
come following Evans' meeting with Assistant District Attorney
Parker, as Worthy seemeil to be testifying on August 10 (III Tr.
20). However, a request at that point would have been non-
sensical because Evans was already in the cell adjoining
McCleskey's. Second, it could be that Evans was originally in the
cell next to McCleskey, that he overheard the incriminating
‘statements prior to any contact with the investigators, that
== /
McCleskey was moved to a different cell, and that the authorities
then requested permission to move Evans to again be adjacent to
McCleskey. As the state concedes, this possibility is mere
speculation and is not supported by any evidence in the record.
Post-Hearing Brief ‘at 53.
For the foregoing reasons, the court conclude
fn has established by a/preponderance of the evide
following sequence of events: inally in the
cell adjoining McCleskey's; prior to July 9, 1978, he was moved,
pursuant to a request approved by Worthy, to the adjoining cell
for the purpose of gathering incriminating information; Evans was
probably coached in how to approach McCleskey and given critical
facts unknown to the general public; Evans engaged McCleskey in conversation and eavesdropped on McCleskey's conversations with
DuPree; and Evans reported what he had heard between July 9 and
July 12, 1978 to Assistant District Attorney Parker on July 12. 2. Abuse of the Writ Questions.
The state argues that petitioner's Massiah claim in this
glect. As was
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First, petitioner cannot be said to have Rion ionatiy
aband is claim. Although petitioner did raise a Massiah
claim in his first state petitions that claim was dropped because
it was obvious that it could\not succeed given the then-known
er his first federal etition, petitioner was
unaware of Evans' written sta , which, as noted above,
——————
contains strong indications ship between
Evans and the—authorities. Abandoning a claim whose suppor
—
—
only later become evident is not an abandonment that "faqQr
trategic, tactical, or any. other reasons ... can fairly
descri he—deliberate by-passing of state procedures." Jay
v. Noiz, 372 0.8. 391, 439 (1963), SOE irPortervr ile, 63%
F.28 727, 743 (5th Cir. 1 Petitioner's Massiah claim is
therefore IL no evidence showld
re
p=
een taken. This 1s not a case where petitioner hals
ved his proof or deliberately withheld his claim for/a
second petition. Cf. Sa —United-States,
(1963). Nor is the petitioner now raising an issue foshyLasl to
one he earlier considered without merit. Cf. Booker v. Wain-
wright, 764 P.24 1371, 1377 (11th Cir. 1983),
ol petitioner's failure to raise this claim in his
first fe eral habeas petition was not due to his inexcusable
negisht. When the state alleges imexcusable
is on tehespericionse’s conduct and kn
re
glect, the focus
edge at e time of the
— federal application. .e. He is chaygsable with
=
-24-
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[the time of the first petition.” Moore, 824 F.2d at 851. Here,
petitioner did not have Evans' statement or Worthy's testimony at
the time of his first federal petition; there is therefore no
inexcusable neglect unless "r&zsonably competent counsel” wguld
have discovered the evidence prior to the first federal petition.
This court concluded at the evidentiary héaring that petitioner's
counsel's failure to discover Evans’ written statement was(not
Tr —— . Ww Ne i
inexcusable RegisTR.I2 Tr. 118-19)- The same is true of coun-
Z ( Sl hn RE Te a ;
sel's failure to discover Wogthy's testimony. Petitioner's
counsel represents, and the state has not disputed, that counsel
did conduct an investigation of 2scosiibie Massiah claim prior to
the first federal petition, including interviewing "two or three
jailers." Petitioner's Post-Hearing Reply Brief at 5. The state
has made no showing of any reason that petitioner or his counsel
should have known to interview Worthy specifically with regard to
the Massiah clain. The state argues that petitioner's counsel
should have at lei¢st interviewed Detectives Harris and Dorsey and
Deputy Hamilton. Given that all three denied any knowledge of a
request to move kvans next to McCleskey, it is difficult to see
how conducting such interviews would have allowed petitioner to
assert this claim any earlier. See Ross v. Kemp, 785 F.2d 1467,
1478 (llth Cir. 1986) (remanding for evidentiary hearing on
Hh Lap
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inexcusable neglect where petitioner's counsel may have relied on
misrepresentations by the custodian of the relevant state
records). | of
. /
In short, the petitioner's Massiah dlaim as it is currently
[ >
framed is not an abuse of the writ because it is distinct from
the Massiah claim-originally raised in his first state petition
and because it is based on new evidence. Petitioner's failure to
discover this evidence earlier was not due to —inexcusable
neglect. Because this claim is not an abuse of the ala not
a successive) petition under section 2244(b) and therefore the
Wd :
court need not inquire whether the petitioner has made a color-
able showing of factual innocence, if that showing is now the
equivalent of the "ends of justice." . Kuhlmann, 106 S.Ct. at
2628 n. 18.
3. Conclusions of Law.
The Eleventh Circuit recently summarized the petitioner's
burden in cases such as this:
In order to establish a violation of :he
Sixth Amendment in a jailhouse informant
case, the accused must show (1) that a fellow
inmate was a government agent; and (2) taat
the inmate deliberately elicited incrim-
inating statements from the accused.
Lightbourne v. Dugger, 8292 F.2d 1012, 1020 (llth Cir. 1987). The
coincidence of similar elements first led the Supreme Court to
conclude that such a defendant was denied his sixth amendment
right to assistance of counsel in Massiah v. United States, 377
U.S. 201 (1964). In that case, the defendant's confederate
-26=-
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cooperated with the government in its investigation and allowed
his automobile to be "bugged." The confederate subsequently had
a conversation in the car with the defendant during which the
defendant made incriminating statements. The confederate then
testified about the defendant's statements at the Setendanits
trial, The Supreme Court held that the defendant had been
"denied the basic protections of [the sixth amendment] when it
was used against him at his trial evidence of his own incrim-
inating words, which federal agents had deliberately elicited
from him after he had been indicted and in the absence of his
counsel." *4. at 206.6
The Supreme Court applied its ruling in Massiah to the
jailhouse informant situation in United States v. Henry, 447 U.S.
264 (1980). In that case, a paid informant for the FBI happened
to be an inmate in the same jail in which defendant Henry was
being held pending trial. An investigator instructed the
‘informant inmate to pay particular attention to statements made
by the defendant, but admonished the inmate not to solicit
‘information from the defendant regarding the defendant's in-
|
i
i
H
i
1 dictment for bank robbery. The inmate engaged the defendant in
conversations regarding the bank robbery and subsequently
i ————— tu, oe
Te ————————————
testified at trial against the defendant based upon these
conversations. The Supreme Court held that the inmate had
deliberately elicited incriminating statements by engaging the
defendant in conversation about the bank robbery. Id. at 271. It
-Z7-
was held irrelevant under Massiah whether the informant ques-
: are La Wi
tioned the defendant about the crime or merely engaged in general
conversation which led to the disclosure of, incriminating
statements about the crime. : Id. at 271-72 n.s10. Although the
. a —— -
government insisted that it should not be held responsible for
the inmate's interrogation of the defendant in light of its
specific instructions. to the: contrary, the Court held that
employing a paid informant who converses with an unsuspecting
™ Ste Lr Se,
inmate while both are in custody amounts to "intentionally
—— S—
creating a situation likely to induce [the defendant] to make
incriminating statements without the assistance of counsel." Id.
es lished a Massiah violation here. It is clear from Evans'
———
Statement that he did much more than merely engage
petitioner in conversation about petitioner ] . As
discussed earlier, Evans repeatedly lied to petitioner in order
to gain his trust aid to draw him into incriminating statements.
Worthy's testimon:® establishes that Evans, in eliciting the
incriminating statements, was acting as an agent of the state.
This case is complately unlike Kuhlmann v. Wilson, 106 S.Ct. 2616
(1986), where the Court found no Massiah violation because the
inmate informant had been a passive Listenet and had not de-
TM —— an
liberately elicited incriminating statements from the defendant.
Fd AOT2A © “3%
(Rev. 8/82)
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Here, Evans was even more active in eliciting incriminating.
statements than was the informant in Henry. The conclusion is
inescapable that petitioner's sixth amendment rights, as inter-
preted in Massiah, were violated.
‘However, "[n]ot every interrogation in violation of the rule
set forth in Massiah ... mandates reversal of. a conviction."
gnited States v. Rilrain, 566 F.2d 979, 982 (Sth Cir. 1978).
Instead, "the proper rule [is] one of exclusion of tainted
evidence rather than a per se standard of reversal if any
constitutional violation hal[s] occurred." Id. n. 3, citing
Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977); United States
V. HBavies, 471 PFP.24 788, 793, cert. denied, 411 U.s. 969 (Sth
Cir. 1973). In other words, "certain vidlations of the right to
counsel may be disregarded as harmless error." United States v.
Morrison, 449 U.S. 361, 365 (19381), citing Chapman v. California,
386 U.S. 18, 23 n. 8 (1967). To avoid reversal of petitioner's
conviction the state must "prove beyond a reasonable doubt that
the error complained of [the use at petitioner's trial of his own
incriminating statements obtained in vicletion of his sixth
amendment rights] did not contribute to the verdict obtained."
Chapman, 386 U.S. at 24. See also Brown Vv. Jugger, No. 85-6082,
—
Slip Op. at 511-12 (11th Cir. November 13, 1987)=—
ot fact of the Massiah violation in this case is
(accepted, it is not possible to find that the error was har
BORA ot TT ———— NY TTT -
A review of the evidence presented at the petitioner's trial
“20
AO T2A ©
{Rev. 8/82)
reveals that Evans' testimony about the petitioner's incrim-
inating statements was critical to the state's case. There were
no witnesses to the shooting and the murder weapon was never
found. The bulk of the state's case against the petitioner was
three pronged: (2h sevidanie that petitioner carried a particular
gun on the day of the robbery that most likely fired the fatal
bullets; (of vestinony by co-defendant Ben Wright that petition
pulled the trigger; and 5% i testimony abou £3 tila
incriminating statements. As petitioner points out, the evidence
on petitioner's possession of the gun in question was conflicting
and the testimony of Ben Wright was obviously impeachable.8 The
state also emphasizes that Evans testified only in rebuttal and
for the sole purpose of impeaching McCleskey's alibi defense. But
the chronological placement of Evans' testimony does not dilute
its impact -- "merely" impeaching the statement "I didn't do it"
with the testimony "He told me. he did do it" is the functicnal
equivalent of case in chief evidence of guilt.
For the foregoing reasons, the court concludes that peti-
tioner's sixth amendment rights, as interpreted in Massiah, were
violated by the use at trial of Evans' testimony about the
petitioner's incriminating statements because those statements
were deliberately elicited by an agent of the state after
petitioner's indictment and in the absence of petitioner's
attorney. Because the court cannot say, beyond a reasonable
doubt, that the jury would have convicted petitioner without
-30~
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Evans' testimony about petitioner's incriminating statements,
petitioner's conviction for the murder of Officer Schlatt must be
reversed pending a new trial.?
Unfortunately, one or more of those investigating Officer
Schlatt's murder Steoped out of ‘line. Se vetninadt Trmavense his
re the investigator(s) violated clearly-establishe case
law, however artificial or ill-conceived it might have appeared.
In so doing, the investigator(s) ignored the rul law that
Officer Schlatt gave his life in protecting and thereby tainted
tl.e prosecution of his killer.
B. Mooney Claim.
Petitioner's Mooney claim is based upon the state's use at
trial of misleading testimony by Offie Evans, which petitioner
contends violated his eighth amendment rights and his right to
due process of law under the fourteenth amendment. See Mooney v.
Holohan, 294 U.S. 103, 112 (1935) (criminal conviction may not be
obtained using testimony known to be perjured). In particular,
petitioner contends that the state failed to correct Evans'
misleading testimony regarding his real interest in testifying
against petitioner, regarding the circumstances surrounding his
cooperation with the state, and regarding petitioner's confession
of having shot Officer Schlatt. Petitioner alleges that the
newly discovered statement of Offie Evans reveals these mis-
leading elements of Offie Evans' testimony at trial.
/
33
AOT2A ©
(Rev. 8/82)
Petitioner's allegation that the state misled the jury with
Offie Evans' testimony that he was a disinterested witness is
actually a restatement of petitioner's Giglio claim. The
allegation that the state misled the jury with OILisi Evans!
testimony that he happened to inform the state of petitioner's
incriminating statements, when in fact the evidence suggests that
Offie Evans may have been an agent of the state, 1s a restatement
of petitioner's Massiah claim. Consequently, only t allega-
tions of misleading testimony regarding the\actual shooting need
to be addressed as allegations supportive of ate Mooney
claim.
As a preliminary matter, the failure of petitioner to raise
this claim in his first federal habeas petition raises the
question of abuse of the writ. Because this claim is based upon
the newly discovered statement of Offie Evans, the same con-
clusion reached as to the Massiah claim obtains for this claim.
It was not an abuse of the writ to fail to raise the Massiah
claim earlier and it was not an abuse of the writ to have falled
to raise this claim earlier.
However, on its merits the claim itself .s unavailing. In
order to prevail on this claim, petitioner must establish that
the state did indeed use false or misleading evidence and that
the evidence was "material" in obtaining petitioner's conviction
or sentence or both. Brown v. Wainwright, 785 F.2d 1457, 1465
(llth Cir. 1986). The test for materiality is whether there is
"any reasonable likelihood that the false testimony could have
~33-
affected the judgment of the jury." Id. at 1465-66 (quoting
United States v. Bagley, 0.8. tr 105 '8.C,..3375, 3382
(1985) (plurality)). Petitioner's allegations of misleading
testimony regarding his confession fail for two reasons.
‘First, no false or misleading testimony was admitted at
trial. A comparison of Offie Evans' recently discovered state-
ment and his testimony at trial reveals substantially identical
testimony regarding McCleskey's confession that he saw the
policeman with a gun and knew there was a choice between getting
shot by the policeman or shooting the policeman. Compare Pet.
Exhibit E, at 6 with Trial Tr. at 870. While Offie Evans did use
the word "panic" in his written statement when describing this
dilemma, the addition of this word adds nothing to the substance
of the trial testimony, which conveyed to the jury the exigencies
of the moment when petitioner fired upon Officer Schlatt. second,
even if the omission of this one phrase did render the testimony
of Offie Evans misleading, this claim would fail because there is
no reasonable likelihood that the jury's judgment regarding peti~-
tioner's guilt and his sentencing would have been altered by the
addition of the phrase "panic" to otherwise substantially
identical testimony.
C."" Caldwell Claim.
‘Petitioner's third new claim is based upon references by the
prosecutor at petitioner's trial to appellate review of the jury
sentencing decision and to the reduction on appeal of prior life AOT2A © -33-
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AO T72A ©
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sentences imposed on petitioner. These references are said to
have violated petitioner's eighth amendment rights and right to
due process of law as guaranteed by the fourteenth amendment.
laims that the referdfice to the
of prior life sentences\was constitutionally impermis-
se
To the ext petitioner
reductio
sible in that it led the jury to impose the death penalty for
improper or irrelevant reasons, see Tucker v. Francis, 723 F.2d
1504 (llth Cir. 1984), this claim comes toc late in the day.
Petitioner was aware of these comments at the time he filed his
first federal habeas petition but did not articulate this claim
at that time, Because the state has pled abuse of the writ,
petitioner must establish that the failure to rdlse this claim
during the first federal habeas proceeding was not due to
intentional abandonment ou inexcusable neglect. Petitioner has
offered no excuse for not raising this claim before. He was
represented by competent counsel at the time and should not be
heard to argue that he was unaware that these facts would support
the claim for habeas relief. Indeed, this court recognized the
potential for ‘uch a claim when passing upon the first federal
habeas petition and concluded "it has not been raised .by fully
competent counsel." McCleskey v. Kemp, 580 F. Supp. at 388 n.
27. .
‘Successive petition and abuse of the writ problems also
plague this claim to the extent that petitioner is arguing that
the prosecutor's reference to the appellate process somehow
diminished the jury's sense of responsibility during the To
=34-
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(Rev. 8/82)
whether the comments likely caused
he.
N
tencing phase. | This claim if dus pidosas terms was presented to
this court-by “the first federal habeas petition and rejected.
McCleskey v. Zant, 580 F. Supp. at 387-88 (citing inter alia Corn
v. Zant, 708 F,28 849, 857 (11th Cir. 1983)). Detitioner haw
offered no reason that the ends of justice would be served by
re-visiting this due process claim.
Petitioner also argues that reference to the appellate
process violated his $ignsh am ment rights. Although peti-
tioner did not articulate Shits eighth amendment claim at the time
of the first federal habeas proceeding, the failure to raise the
claim at that time does not amount to an abuse of the writ. Only
after this court ruled upon the first federal habeas petition did
the Supreme Court indicate that it is a violation of the eighth
amendment "to rest a death sentence on a determination made by a
sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests
elsewhere." Caldwell v, Mississippi, 472 U.S. 320, 328-29
(1985). This circuit has recently held that failure to raise a
Caldwell claim in a first federal habe s petition filed before
the decision does not amount to abuse of the writ because there
has been a change in the ‘substantive- Tewo—Adams v. Dugger, 816
F.24 1493, 149 Tien Cir. 1987) (per curiam).
‘Although this court must reach the merits of the Caldwell
rong of this claim failed. The essential question
-35-
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~»
consequences to their deliberations on the death penalty. See
McCleskey v. Zant, 580 F. Supp. at 388. A review of the prose-
cutor's actual comments at petitioner's trial does not reveal any
impermissible suggestions regarding the appellate process which
would have led the jury to believe that the responsibility for
imposing the death penalty rested elsewhere. . As this court
observed when passing upon the due process claim raised by the
first petition,
The prosecutor's arguments in this case did
not intimate ‘to the Jury that a death
sentence could be reviewed or set aside on
appeal. Rather, the prosecutor's argument
referred to petitioner's prior criminal
record and the sentences he had received. The
court cannot find that such arguments had the
q effect of diminishing the jury's sense of
responsibility for its deliberations on
petitioner's sentence. Insofar as petitioner
rr claims that the prosecutor's arguments were
impermissible because they had such an
effect, the claim is without merit.
McCleskey v. Zant, 580 F. Supp. at 388.
D. Batson Claim.
Petitioner's final claim rests upon the alleged systematic
exclusion of black jurors by the prosecutor at petitioner's
trial. This exclusion is said to have violated petitioner's
right to a representative jury as guaranteed by the sixth and
fourteenth amendments.
"This claim was not raised during the first federal habeas
proceedings. However, failure to raise this claim could not be
said to constitute abuse of the writ because prior to the Supreme
36m
Court's decision in Batson v. Kentucky, U.S. 0107 S.Ct,
708 (1987), petitioner could not have made out a prima facie
claim absent proof of a pattern of using preemptory strikes to
exclude black jurors in trials other than petitioner's. See id.
at 7i10-1l-(citing Swain v. Alabama, 380 U.S. 202 41965)).
Although petitioner did not abuse the writ by failing to
raise this claim earlier, the claim itself lacks merit. The
holding In Batsol, WHITH =IIoWs defendants to make the prima
facie showing of an unrepresentative jury by proving a systematic
exclusion of blacks from their own jury, has not been given
retroactive application. The Batson decision does not apply
retroactively to collateral attacks "where the judgment of
conviction was rendered, the availability of appeal exhausted,
and the time for petition for certiorari had elapsed" before the
Batson decision. Allen v. Hardy, U.s. + 106-8.Cv. 2878,
2880 n. 1 (1986) (per curiam). Although the Allen decision did
not involve a habeas petitioner subject to the death penalty,
— this ci it—has specifically held that Batson may not be app ied
retroac ively even to a habeas petitioner subject to the ath
J Ey
Peralty— See Lindsey v. Smith, 820 F.2d 1137, 1145 (llth Cir.
1987); iigh v. Kemp, 819 F.2d 988, 992 (llth Cir. 1987).
VI. OTHER MOTIONS.
“Also pending before this court are petitioner's motions for
discovery and for leave to exceed this court's page limits. The
court presumes that the above resolution of the petitioner's
various claims and the evidentiary hearing held in this case
AOT72A © :=37-
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obviate the need for any further discovery. Petitioner's motion
for discovery, filed before the evidentiary hearing, does not
provide any reason to think otherwise. The motion for discovery
is therefore DENIED. The motion to exceed page limits is
GRANTED.
VII. CONCLUSION.
In summary, the petition for a writ of habeas corpus is
DENTED as to petitioner's Giglio, intentional discrimination, and
Ake claims because those claims are successive and do not fall
within the ends of justice exception. The petition for a writ of
habeas corpus is DENIED as to petitioner's Mooney, Caldwell and
Batson claims because they are without merit. Petitioner's
motion for discovery is DENIED and his motion to exceed page
limits is GRANTED. The petition for a writ of habeas corpus is
GRANTED as to petitioner's Massiah claim unless the state shall
re-try him within 120 days the receipt of this order.
SO ORDERED, this Z 2% ny of uy, 1987.
Cl ly
J. /OWEN FOLKRESTER
UNITED STATES DISTRICT JUDGE
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FOOTNOTES
1 petitioner was also convicted on two counts of armed robbery
and sentenced to two consecutive life sentences.
—————— a ——————————
ts — — sm
1 ————"
rtt—.
2 Another distinct ground for finding excusable neg
showing that the petitioner did not realize that the fact
which he had knowledge could constitute a basis for which fe
“habeas corpus relief —— Booker v. Wainwright, 764
F.2d 1371, 1376 (llth Cir. 1985). Although "[ t]he exact scope of
this alternative exception to the abuse of writ doctrine lacks
adequate definition," id., it would appear fr the cases that it
@3 5
applies only when the petitioner appeared in presenting
the first habeas petition. See, e.g., Haley ¥Y—Estelle, 632 F.2d
1273, 1276 {5:h'Cix. 3980).
3 "... [W]e hold that the Baldus study does not demonstrate a
constitutionally significant risk of racial bias affecting the
Georgia capital-sentencing process." (Powell, J., for the
majority). McCleskey v. Kemp, U.S. t. 107. 8.Ct.. 1759 at
1778 :{1887).
4 See the discussion of McCleskey's Massiah claim infra.
b References to the transcripts of the July 8, July 9, and
August 10, 1987 hearings will be to "I TR.," "II Pr.,» and "III
Tr.," respectively.
6 Dissenting Justice White, joined by Clark and Harland, JJ.,
protested the new "constitutional rule ... barring the use of
evidence which is relevant, reliable and highly probative of the
igsue which the trial court has before it." 377 U.S. at 208. The
dissenters were "unable to see how this case presents an un-
constitutional interference with Massiah's right to counsel.
Massiah was not prevented from consulting with counsel as often
as he wished. No meetings with counsel were disturbed or spied
upon. Preparation for trial was in no way obstructed. It is
only a sterile syllogism -- an unsound one, besides -- to say
that because Massiah had a right to counsel's aid before and
during the trial, his out-of-court conversations and admissions
must be excluded if obtained without counsel's consent or
presence.” Id. at 209.
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The dissenters highlighted the incongruity of overturning
Massiah's conviction on these facts. "Had there been no prior
arrangements between [the confederate] and the police, had [the
confederate] simply gone to the police after the conversation had
occurred, his testimony relating Massiah's statements would be
readily admissible at the trial, as would a recording which he
might have made of the conversation. In such event, it would
simply be said that Massiah risked talking to a friend who
decided to disclose what he knew of Massiah's criminal activi-
ties. But if, as occurred here, [the confederate] had been
cooperating with the police prior to his meeting with Massiah,
both his evidence and the recorded conversation are somehow
transformed into inadmissible evidence despite the fact that the
hazard to Massiah remains precisely the same -- the defection of
a confederate in crime." Id. at 211.
7 Justice Rehnquist, dissenting, questioned the validity of : gq : io! Y
Massiah: "The exclusion of respondent's statements has no
relationship whatsoever to the reliability of the evidence, and
it rests on a prophylactic application of the Sixth Amendment
right to counsel that in my view entirely ignores the doctrinal
foundation of that right." 447 U.S. at 289. Echoing many of the
concerns expressed by Justice White in Massiah, id. at 290,
Justice Rehnquist argued that "there is no constitutional or
historical support for concluding that an accused has a right to
have his attorney serve as a sort of guru who must be present
whenever an accused has an inclination to reveal incriminating
information to anyone who acts to elicit such information at the
behest of the prosecution." Id. at 295-96. ‘Admitting that the
informants in Henry and in Massiah were encouraged to elicit
information from the respective defendants, Justice Rehnquist
"doubt[ed] that most people would find this type of elicitation
reprehensible.” Id. at 297,
pra—
rorifticism of Henry oF Extending Massiah "despite “that
ecision's: doctrinal emptiness" and for giving Massiah "a firmer
place in tae law than it deserves," see Salzburg, Forward: ©
low and Ebb of Constitutional Criminal Procedure in the Warren
2n3 Susger Soul gourts, 69 Geo.L.J. 151, 206-03 (1980). J
oi
8 There is 22 i ET it hat un iid Ss testimony on the
fact of the murder would have been admissible at all absent
corroboration by Evans' testimony. See 0.C.G.A. §24-4-8 (un-
corroborated testimony of an accomplice not sufficient to
establish a fact). But see McCleskey v. Kemp, 753 F.2d at 885
(Wright's testimony corroborated by McCleskey's admitted par-
ticipation in the robbery; corroboration need not extend to every
material detail). :
ii
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{Rev. 8/82)
9 Here, as in Massiah and Henry, the evidence is excluded and
the conviction consequently reversed despite the fact that the
evidence is "relevant, reliable and highly probative" of peti-
tioner's guilt. Massiah, 377 U.S. at:208 (White, J., dis-
senting). There is no question that petitioner's incriminating
statements to Evans were made voluntarily and without coercion.
Had Evans been merely a good listener who first obtained
McCleskey's confession and then approached the authorities,
Evans' testimony would have been admissible. The substance of
the evidence would have been no different, McCleskey's risk in
speaking would have been no different, and McCleskey's counsel
would have been no less absent, but the evidence would have been
admissible si ecause the state di intentionally seek to
While this court has grave doubts :
and rational validity of the Supreme Court's pre
pretation of the sixth amendment, those doubts have bee
iculated ably in the dissents of Justice White and Justic
ehnquist. See supra, notes 4 and 5. Until the Supreme Court
repudiates its present doctrine this court will be obliged/to
ch the result it reaches today.
$ii
%
%
74
28
=
"This paper, by Prof. Wm. Wilbanks, was presented at a Fanel
at the Law & Society Meetings in Washington, D.C. on June
14, 1987. The panel also included David Baldus of the U.
of Iowa and author of the studied relied upon by McCleskey;
Jack Boger, one of McCleskey's attorneys; Samuel Gross of
Stanford, a death penalty researcher; and Michael Radelet
of the U. of Florida, a death penalty researcher.
ny GEORGIA"
In 1972 the U.S. Supreme Court struck down all state capital
punishment laws on the ground that death was being "wantonly" and
MREACTIONS TO
"freakishly" imposed. The majority opinion suggested the death penalty
might still be constitutional i+ state law provided for "guided"
discretion. In response, several states passed legislation that
restricted the death penalty to certain kinds of premeditated murder;
provided for guidance to judges and juries through lists of acceptable
aggravating and mitigating factors; and required automatic appellate
review to determine if the death sentence was "excessive" given similar
Case,
In 1976 the U.5. Suprene Court upheld the state death penalty
statutes (in Georgia, Texas and Florida) that provided statutory
criteria for the imposition of the death penalty and appellate review
for proportionality. The Court expressed the view that the guidelines
and appellate review would eliminate or reduce the arbitrariness in the
imposition of the death penalty so that such factors as race would not
play a determining role in the imposition of the death penalty. But the
ruling of the Supreme Court was based on theory rather than practice in
that 1t was assumed or theorized (in the absence of data) that
guidelines and review would reduce discretion and djscrimination.
The theory of the Court spurred numerous researchers to examine the
practice of those states whose death penalty laws were approved by the
court. A number of statistical studies have been published in recent
vears that challenge the optimistic view of the U.5. Supreme Cowt that
arbitrariness and discrimination in the imposition of the death penalty
could be significantly reduced by guidelines and review.
Pn April 22, 1987, the U.S. Supreme Court, in a %-4 vote, upheld
the conviction of a black man, Warren McCleshkey, who shot and killed a
white police Diticer in a 1978 Atlanta furniture store robbory, Lawyers
for McCleskey had claimed that he was the victim of a system that tends
to impose the death sentence on those who - murder whites
disproportionately more often than on people convicted of killing
blacks. Many constitutional scholars believe that the McCleskey
decision. was the last broad challenge to the death penalty that could
heave affected hundreds of death-row cases nationwide The U.S. Supreme
Court clearly refused to abolish the death BARELY and thus future
challenges are likely to be limited to issues limited to a single case.
The most controversial part of the McCleskey decision was the
rejection by the Court of the conclusions (of racial bias by race of
victim) of a statistical study by David Baldus “and colleagues), a
University of Iowa law professor. Baldus® study of almost 2,500
homicide cases in Georgia from 1973 to 1979 indicated that those who
killed white victims were 11 times as likely-to be given the feath
penalty as those who killed blacks. Furthermore, the Louwt. majority
ruled that McCleskey would have to prove direct racial digerimination in
iis case rather than infer discrimination in Georgia, via statistics
Juke Baloun atudyy, dn other oO : i :
: Ihe Supreme Court's decigion in Mcllesk®y hag been stron oly
creitenived by many in the resesrch/scademic community and the media. An
Fuample of this crite ism 1s seen in the lead paragraph ot & syndicated
column by Anthony Lewis on the MoCleskey decisions
Contronted with powerful evidence that racial feelings play a large
part in determining who will live and who will die, the U.S.
Supreme Court closed its eyes. It effectively condoned the
expression of racism in a profound aspect of our law.
§ the purpose of this paper is to both defend and criticize the McCleskey
3 (ruling—---it is, as the title implies, "Reflections on McCleskey Vs.
: Georgia".
First, critics of the Court ruling have either misread or purposely
: distiortatic the majority opinion by Justice Fowell. The Court did not
3 "accept the validity of the (Baldus) study” in the sense suggested by
3 critics. A close reading of the majority opinion by Justice Lewis
Fowell clearly indicates that the Court viewed the Baldus study as only
indicative of a correlation between race of victim and the death
penalty-——not necessarily a race bias. Fowell wrote that even if the
statistics were valid the conclusions by Baldus (i.e., that there was a
ann on ao a sae ron — midi lia Wits
race bias, not simply a correlation between race and outcoms) did not
necessarily follow. The Fowell opinion stated that "at most, the Ealdus
study indicated a discrepancy that appears to correlate with race.”
Eut critics have left the erroneous impression that the majority
cpinion upheld the Georgia death penalty even though it acknowledged
that racial discrimination had been clearly proven in the Baldus study.
This istortion of the Court ruling is strategic in that it places the
Court Gi Ao its supporters) in the untenable position of upholding the
death penalty in spite of clear proof of racism in its imposition.
However, this misreading of the ruling is partly the fault of a poorly
worded opinion by Justice Powell where language such as "we assume the
validity of the statistics” could be easily misinterpreted if not read
in. context: of "the entire opinion. The media can be excused for
misinterpreting the opinion given the wording utilized by the Court.
But, in. my view, academic critics of the deci®ion have purposely
distorted the ruling in order to portray the Court majority as being
unconcerned about racism.
grapple with the evidence presented in Baldus. It should be noted that
the ERBaldus study was found to be seriously flawed by the U.S. District
Court which, firef considered the statistical "proot" presented for
McCleskey via Baldus. After hearing the evidence from statisticians
from both sides, the District Court judge ruled that "the data base has
substantial flaws” and that McCleskey "failed to establish by a
preponcerance of the evidence that it is essentially trustworthy". The
Judge pointed out that the greater likelihood of receiving death if the
victim were white rather than black was reduced from 11:1 to 4.3:1 when
some tactore (e.g., the "aggravation level” of the homicide, number of
Second, the Supreme CLourt should be criticized for failing to
yictims? were taken into account. The judge also noted that the
fFfemaining difference (4.3:1) was not statistically significant; that the
(model accounted for less than S0% of the variance; and important control
tactors (2. Guy whether the defendant was offered a plea bargain) tha
might have further reduced the 4.3:1 disparity were not utilized.
Clearly, the Federal District Court judge did not see Baldus® study as
"proof" of racial discrimination.
The U.S. Court of Appeals and the U.S. Supreme Court failed toc rule
orn the District Court's evaluation of the Baldus study. Ferhaps they
were "scared off" by the specter of a federal judge, who was clearly an
Ni amateur in statistics and methodologysy "refereeing" an argument among
prominent statisticians. The briefs filed for McCleskey clearly pointed
out some of the errors in fact and interpretation of the District Judge.
It is likely that the two higher courts decided they were not going to
get involved in a statistical quagmire-—-they would simply bypass the
statistical evidence and base their ruling=on other grounds (e.g., that
no discrimination had been suggested or proven in MeSlesnsy = case).
| —
= That decision was, in my view, a "cop-out" and a mistake. 1
believe the proper course of action (as suggested by two Of the
Justices) was to remand the case to the Court of Appeals for a ruling on
eae esa ——
~~
o“
EB a 3 LS
the validity of the Baldus study's methods and conclusions. The court
should have directly confronted the evidence in Baldus rather than just
suggested that the study was indicative only of a correlation, not a
race effect. The Cots t did not fully explain Tony the Splaus sauay did
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Faldus while conceding inat the statistics of Bate were Sos The
Supreme Court thus said, on one hand, that it would not rule on the
validity of the Baldus study, while at the same time it adopted the
District Court's (and the State's) position that the conclusions (of a
: : race effect) of the study were unjustified. Thus the Supreme Court
i implicitly adopted the conclusion of the District Court without getting
i into a statistical debate.
The Supreme Court, perhaps realizing that it had accepted the
tate‘'s contention that PBaldus did not prove a '"race- effect" while
refusing to grapple with the data and methodology of the study to
explain its rejection of the Baldus conclusions, then presented a "back-
4 up position". Powell suggested that even if one could prove (which they
claimed EBaldus did not) a race effect in "other cases", there was no
| evidence of direct racial discrimination in McCleskey’'s case. It is as
if the Court was trying to end what might become an endless statistical
debate by ruling on the death penalty in a way that would eliminate the
possibility of some later statistical study overcoming the defects
pointed out by the District Court. Thus the Court was saying, in
effect, "let's end this debate over the death penalty—---let’s rule in a
way that will preclude future challenges based on statistical evidence."
Unfortunately, the decision to require proof of direct
discrimination in a particular case flies in the face of prior decisions
and establishes & burden that will be difficult, if not impossible, to
meet. How can anyone prove that discrimination occurred in a particular
case uWwnless someone admits to making a decision baged on race? This
standard has not been imposed in other spheres such as 1n employment
figcnialnati on and Jury discrimination so it is difficult to see why
uch a stringent standard should be applied in death penalty cases.
Third, it appears that the overriding concern of the Court majority
was to preserve the death penalty process and the criminal Justice
system against constitutional challenges based on disparity in outcome
Ev race (or some other illegitimate factor). This desire led the court
to "create" the new Constitutional burden of having to prove direct
discrimination in a& particular case rather than allowing discrimination
in & svstem to be inferred from statistical data. The Fowell opinion
i it clear that if the Court agreed with McCleskey that race of wm
victim was a determinant in outcome and thus invalidated the Georgia
death penalty system, a whole series of challenges would follow.
The court specifically mentioned the sex factor. Though males are
arrested at a ratio of approximately 7 to 1 compared to females, males
y outnumber females on death row by approximately 82 to 1. Thus the death
penalty system in the U.S. appears to favor females over males at a
jratic of over 11:0 ls R11 male killers would argue that, given the
ruling in. McCleskey, their conviction and/or sentence should be
overturned since female killers are treated more leniently.
And if the death penalty process, with all of its statutory
[Phas pes and safeguards, is overtwned there is the likelihood that
noncapital sentences would be even more likely to be infected with
illegitimate disparities in outcomes and thus subject to comstitutional
challenge. The court decided that the best way to ‘end such challenges
was to reject evidence of inferred racism via statistical evidence and
thereby eliminate similar claims for sexism, etc. - - =.
: fourth, there are grounds to reject the cenclesions of Ealdus
if that study were directly confronted by the courts - Raldus concluded
‘that racism permeated the Georgia death penalty system in that those who
killed white rather than black victims were more likely to receive the
death penalty. Thus racism is inferred in decision-makers (e.g. .,
prosecutors, Juries) in the Georgia system from the race of victim
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disparities presented by Baldus. This "theory" by Baldus implicitly
suggests that white decision-makers exercised racial discrimination
against blacks by devaluing black life via leniency to those who killed
blacks rather than whites. And yet Raldus presented no evidence on a
critical variable---the race of prosecutors and juries. We do not know
how many prosecutors involved in the Georgia cases were white vs. black
nor do we know the extent to which all-white juries vs. bi-racial juries
voted for the death penalty in the cases studied by Baldus. The Supreme
Court could have refused to invalidate the death penalty in Georgia
solely on. the failure to establish that the "accused" (e.qgQ., white
prosecutors and jurors) were in fact white (as implicitly suggested by
Baldus).
There has been much discussion about how the Ealdus study
controlled for over 200 variables and yet still found a race of victim
disparity. The great number of control variables is a smokescreen in
that it is seldom mentioned that the factors considered most important
by the actual decision-makers (e.g., prosecutors) and critics of the
death penalty were not utilized as controls. If prosecutors are asked
what factors most influence their decision to seek a death penalty they
wil! mention strength of evidence, whether the jury was likely to
convict, and whether the defendant was willing to accept a plea bargain
{McCleskey was not willing to plead). None of these factors were
measured by Baldus. Furthermore, critics of the death penalty system
\ Often suggest thal the bias of all-white juries is one of the greatest
dangers in the system. And yet the Baldus study did not control for
race of jurors. What if all-white juries and bi-racial juries made
similar decisions with respect to race of victim? Rould that not
undermine the argument of McCleskey?
It seems to me that good social science would demand that the
dispositions of ck vs. white decision-makers be compared before
jumping to the conclusion that decisions by whites are Critically
/different from decisions by blacks. For example, there are a number of
studies that look at decisions by black vs. white police officers,
prison guards and judges and most have not found that race of decision-
maker was significant. Surely the Supreme Court should not overturn the
death penalty on the unproven assumption that the decisions by white vs.
black prosecutors and jurors are substantially different. | Again, the
Baldus study did not even establish the race of the decision—-makers——-—
ard iE certainly did not establish that white prosecutors and jurors
differed in thelr decisions from black prosecutors and Jurors!
3
What good would 1t do to compare decisions by white vs. black
decision-makers? Baldus claims that he controlled for al critical
variables and that a 4.3:1 disparity by race of victim remained. Thus
he infers that race of victim must explain the 4.353:1 disparity. My
point 1s that the negative inference (of racism) would not be made if
decision-makers were black as well as white. Suppose that the same
disparity existed in decisions made by all-white and bi-racial Juries.
It would then be difficult to claim that black—Jjuwrors, like white
Jurors, exercised a subtle racial bias against those who killed white
victims.
Ard 1+ the statistics still indicated .a disparity by race of victim
even when race of decision-maker was considered one might consider some
non—-racial factors that might be correlated with race of victim. For
example, it is likely that social class of victim is an important factor
in seeking the death penalty in that the office of the prosecutor feels
more pressured (via phone calls, pressure groups like Farents of
Murdered Children) when more "prominent" people are killed. This factor
alone might explain why black on white killings seem to receive more
severe treatment than black on black killings. It would appear that
many killings of whites involve middle .and=upper class victims while
most killings of blacks involve offenders and victims of the lower
Class. Thus what appears to be race of victim bias may actually be &
cless bias. This is not to justify greater consideration by prosecutors
to victims ot higher social classes. It is only to suggest that what
might appear to be a race of victim factor in decision-making might
actually be a class of victim factor. Raldus did not exclude this
possibility (likelihood?) since he did not control for social class of
victim.
Fifth, the failure of Ealdus to include controls for—xace of
decision-maker » and social class of victim and his failure to even
\ . = . ————— el RE - »
mention the possible importance of such factors raises another important
point that should be considered by any court—-—-—-— the possible bias of the
researcher, Researchers are as subject to bias ag are Supreme Court
justices, prosecutors or jurors. Eut whereas judges and jurors are
supposed to be "neutral" prosecutors and defense attorneys, along with
the statisticians on their side, are part of the adversary system and
thus tend to present "one-sided" views of the evidence. Since the
Baldus study was intended for presentation by McCleskey it is possible
that the evidence was "slanted". In fact, isn’t that the purpose of the
adversary system? :
I am not suggesting that researchers like Baldus purposely falsify
their data. But the possibility remains that researchers who are
advocates of a particular position (e.g., for or against the death
penal ty) might slant the evidence to better support the abolitionist
Cause. As noted above it would not help "the cause" to mention the
failure to measure race of decision-maker or social class of victim———it
is better to suggest that the only inference to be drawn from the data
is that of racism. There are many ways that researchers can slant or
bias a study to make a stronger case for a particular position.
I am not suggesting that this bias is always conscious. Ferhaps 1t
ie "subtle". Remember that BRaldus and others have suggested that the
racial bias of prosecutors and jurors is likely "subtle" rather than
conscious and direct. If prosecutors and jurors can exercise a subtle
bias in their decisions why cannot researchers exergise a similar subtle
bias im the design, implementation and interpretation of their studies?
Surely it is hypocritical to suggest that researchers are free from bias
while prosecutors and jurors-—and Supreme Court Justices—-—are not.
Ferhaps the adversary system is a poor forum for the presentation
of statistical data. If so, "truth" might be better served if the
Supreme Court turned over all the data to some body such as the National
Ppcademy of Sciences and asked both sides to make their case to that
frody. The Academy could then give its opinion on the validity oft the
statistics and the conclusions of the researchers to the Court. Surely
the Academy 1s more qualified and less biased (since they are less
ikely to be as emotionally involved in the issue) than the researchers
or the Court? Fut that will never happen because the Court {and
researchers) will never admit that its bias influences its decisions.
The perception of bias is also one-sided when one considers the
impact of bias on the part of the Supreme Court Justices. I believe
that the Court majority decided to uphold the death penalty and then
marshaled its evidence and logic in support of that decision. Critics
of the death penalty will agree. But I also believe that the dissenting
Justices decided to rule for McCleskey and that thie decision influenced
their view of the validity of the Ealdus study. F .doubt if. tdeath
penalty critics will agree with that assessment. Bub why is. iC that
"they" (supporters of the death penalty, includimg the Court majority)
are biased while "we" (critics of the death penalty, including the
dissenting Justiees) are not? In my view, prejudice is the attribution
of negative traits and motives to "them" and positive traits and motives
Eo "us. : rho LC ~ : I |
I wonder what. "abolitionists would say if a study funded by the
National District Atterney’'s Association (NDAA) found no evidence - of
racial bias in the” death penalty. Surely, it would be argued that the
study was possibly influenced by bias. It should be noted that the
"Baldus study was funded in part by the Legal Defense Fund of the NAACF.
\
J
Did that support influence the research? If not, why would one doubt a
study funded by the NDAAT
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or N
i
[controle a 4.3:1 disparity remained (though this disparity was
A few years ago both the International Association of Chiefs of
Falice (IACP) and the National Urban League sponsored research to
determine if there was a racial bias in the use of deadly force by the
police. The IACF found no such bias while the Urban League reported the
opposite conclusion. Does anyone doubt that both were biased?
I am an ardent advocate of gun control and I know that there is a
strong temptation to "slant" my research to support my position. I have
no doubt that a similar bias is evident in research supported by the
National Rifle Association. 1 have noted that most of the researchers
who are involved in death penalty research are abolitionists, some being
so ardent in their support of this cause that they appear publicly to
denounce the death penalty. Are we supposed to believe that this
advocacy does not influence their research? I am the first to admit
that my position on gun control, the death penalty, etc., does influence
my research.
I get the distinct impression from critics of the McCleskey
decision that they believe all "competent" social scientists agree that
the Baldus study has resolved the "race effect" issue. But 1 “am’ nat
convinced when the McCleskey defense team selects one or more prominent
social scientists to tell the Supreme Court that everyone agrees with
the methods and conclusions of Baldus. {It should be noted that
|
competent statisticians testified for the State of Georgia that the
Faldus study was not valid.) If that is the case why isn’t this issue
turned over to a more neutral body of social scientists? Many prominent
social scientists do not agree that the BRaldus study proves what it
urports to prove. Certainly I do not believe that. My Aen is that
the issue of racial bias by race of victim in the death penalty is
unresolved. ne Onl |
Sixth, one test of a research methodology is to see if it would be
accepted by its advocates 1+ applied to a differed issue where the
ensuing "proof" would go against the bias of the researcher. The Baldus
methodology involved the use of regression analysis to control for
various factors to determine if the 11:1 race of victim disparity in the
Georgia death penalty could be accounted For by such legitimate
considerations as type of homicide, aggravation level, whether torture
was used, etc. After a number of these variables were utilized as
statistically significant?) and that remaining disparity was viewed as a
FEY TTR Ter, many statisticians would call the remaining
variation after controls the "unexplained" variation—-——-though it might
include a true race effect.
The statisticians employed by the state pointed out that such
important controls as str th of evidence, whether the defendant was
ctfered (or willing to accept) a plea bargain, etc. , were not utilized.
Thus the court was faced with a dis € between the statisticians for
the State of Georgia and McCleskey as to how to interpret disparity in
outcome that remained after controls. The State said the variation
remaining after controls was "unexplained variation" while McCleskey
claimed it represented a "race effect".
Suppose one used the type of regression analysis utilized by Raldus
to explain the disparity in grading in classes taught by the Baldus
research team and found that black students (or males, etc.) received
lower grades than white students. Does anyone believe that the team
would agree that racism was present in their grading? I would imagine
that they would argue that the "model did not fit the decision process”
or that "important control variables were not utilized” (these arguments
have been raised by critics of the Baldus death penalty study). ie
{J
y
|
It is also interesting to note that the black/white disparity
(20:1) in the National Basketball Association (NBA) is greater than =the
black/white digparity by race of victim in the Georgia death penalty
(311). Suppose I used the same type of analysis as that used by Haldus
and found that a 4.3:1 disparity still remained (after controlling for
such factors as vertical leap, points per game, rebounds, assists,
BE
ha
He
fi:
g
3
S
T
O
7
5
E
E
\ tL
etc. YY. Would the remaining disparity (4.3:1) be the "race factor”
indicating that whites were being discriminated against? Or perhaps we |
could infer "racial superiority" (for blacks) from this data? If intent
can be inferred from statistical disparity it appears that one «could
"prove" any theory (e.g., type of intent or "cause") from the disparity
in outcome that remains after controls (e.g., allegedly after "all other
things are equal).
The remaining disparity may be due to factors not measured and
controlled (e.g., interest in the game, other career opportunities,
quickness, "heart", etc.); to the failure of the statistical model to
simulate the decision process; to a race factor; or to a combination of
these factors. Baldus only accounted for S04 of the variance in his
model indicating either that many important decision factors were not
included or that the mind of criminal justice officials does not work in
the simple fashion utilized in the statistical model.
And why is it that when studies reach a conclusion favored by
abolitionists (e.gQ., like the study by William Bowerg that found a
"brutalization effect" rather than a deterrent effect for the death
penalty), one listens in vain for criticisms of the methodology? Was
Eowers’® methodology really that much more valid than that of Isaac
Ehriich (who said that each execution deters 8 murders) or was the
criticism directed against the methodology of Ehrlich (but not Rowers)
based on a disagreement with his conclusions? After all, why criticize
"aur side" when it might hurt "the cause". Abolitionists criticize the
logic of the U.S. Supreme Court in McCleskey because the Court came to
the "wrong” conclusion. Eut when the Massachusetts Supremes Court
invalidated that state's death penalty based on data suggesting racial
discrimination in other states (no one was even on death row in Mass. at
the time), abolitionists did not criticize the court's logic since the
\|Eeurt came to the "right" decision. »
Seventh, McCleskey would have the U.S. Supreme Court adopt a theory
of racial discrimination that is inferred from the remaining variation
atter controle that is guite vague. Just how does race of victim enter
into the consciousness (or unconsciousness) of prosecutors and Juries,
ezpecially when race of defendant appears to have little or no impact.
It would seem that those who propose such & theory should spell out the
mechanisms in some detail and account for the "facte" that are known.
Ferhaps the most elaborate attempt to describe the actual
psychological mechanism 1s that by Gross and Mauro. — After describing
the cursory prior attempts at developing a ‘discrimination theory",
Gross and Mauro set forth an explanation that attempts to. account for
the fact that race ot defendant appears not to pe a factor in’ Jury
ing while race of victim does. They hypothesize that white
Jurore are aware ot the possible biasing effect of race of detendant and
thus attempt to counteract that bias. However , the race of victim
operates more subtly on the voting (for life or death) of Jurors. ke
are told that white jurors, not being alert to the dangers of bias by
race of victim, may empathize or identify more with white victims and
thus be more horrified by the murder of whites thus seeing those cases
as more deserving of the death penalty. :
Mo evidence 1s presented to substantiate this theory of racial
discrimination. The obvious solution, if the theory is valid, is for
the court to alert white Jurors to the danger of race of victim bias so
they can consciously counteract that subtle bias as they do for the more
direct bias that may occur by race of defendants X -
Any theory set forth has to explain why_race of defendant does not
appear to impact on white jurors while race of ¥ictim dees. But if
racism 1s as pervasive as McCleskey argues, how can it be so easily
overcome with respect to race of defendant. — And if the counteracting
canbe accomplished by an act of will why can’t that same will overcome
the bias by race of victim? If the Grose and Mauro theory is correct we
don't need to abolish the death penalty—-——we just need to issue a
cautionary warning to Jurors about the dangers of bias bv race of
. —~
victim. math FE eae
Furthermore, how does this theory explain why there 1s no
significant race of victim disparity in such states as New Jersey,
Fennsylvania, North Carolina and Delaware in the imposition of the death
penalty? Would McCleskey agree that since there is no race of victim
disparity in these (and possibly other) states, there is no racism in
the imposition of the death penalty in these states? McCleskey appears
to argue that the death penalty cannot be imposed in a racist society
without racial bias. But if that ‘is the case how does one explain why
there appears to be no racial disparity in some states by the same type
cf statistical evidence that is used to indicate a racial disparity in
Georgia? I would predict that the response of death penalty critics
would be that though there is no statistical evidence of racial bias in
some states, it probably operates on a more "subtle" level. That sounds
like a non—falsifiable thesis doesn't it? If we find evidence of a race
cf victim disparity, that proves racism. If we find no race of victim -
disparity, that does not disprove racism. In fact, the latter proves
hat racism has only gone "underground" and is more subtle.
I have faced this kind of argument in response to my book, The Myth
:¥ a Racist Criminal Justice System. When I point out that conviction
rates and sentencing patterns in most studies indicate no disparity by
‘race of defendant I am told that racism is still there but operating
subtly. Thus if the data indicates no race disparity we are told that
does not indicate an absence of racism but if the data does indicate
race disparity that is proof of racism. Thus it would appear that
statietics are a handy tool---they can help your argument but they can’t
Eighth, I am concerned about what I see as a type of "moral
arrogance” and "elitism" on the part of abolitioniste in viewing those
who support the death penalty. One gets the strong impression that
abolitionists see the public view (and those who support it) in favor of
the death penalty as being on a more "primitive" moral level. Surely
there 1s room For debate on the issue of the morality of the death
penal ty? Why do those who poke fun at the moral absolutism of & Jerry
Falwell take the view that abolitionists are on a& higher moral plane in
refusing to dive in to the bloodthirsty masses? Where 1s the '"matural
law” or God-given code that forbids the death penalty”
Abolitionists say they are as concerned about the victims of murder
as anyone else but do not believe that executions achieve a useful
OUFrDOSE. But if that 1s the case why are Abolitionists generally
present at candlelight vigils at executions but rarely at candlelight
vigile to commemorate the victims of killers? It is bad enough that the
families of murder victims have to endure a lifetime of griet. Buk: it
is deeply insulting to them to be portrayed as "moral primitives" by
those posing as the "moral elite”. I tail to see how a higher morality
is evidenced by those who plead for mercy for killers rather than Dy
those who plead +or Justice for the families of victims.
by William Wilbanks, Fh.D., Dept. of Criminal Justice, Florida
International University. -
S|, WILLIAM WILBANKS, Ph.D.
- FE a < TT -
= S8 KAS PROFESSOR Te ae
= ? SEad ES School of Public Affairs and Services -
= vox ¥ Criminal Justice Department _ =z ; 3 > Diz
- We ne A
Se FLORIDA INTERNATIONAL UNIVERSITY
BAY VISTA CAMPUS, AC-1, 282-A
N. MIAMI, FLORIDA-33181
: TELEPHONE (305) 940-5851
(305) 920-5850
- HOME (305) 595-6102
BLACK LEADERSHIP FORUM
1120 G Street. NW.
Suite 900
Washington. D.C. 20005
(202) 628-2990
FOR AM RELEASE, JULY 16, 1987
CONTACT: Jane Cabot AT LDF: Tanya Coke
Public Interest Public Relations 212/219-1900
212/736-5050
BLACK LEADERSHIP FORUM DENOUNCES RACISM IN CRIMINAL JUSTICE
Leaders Unveil Plan to Oppose Death Penalty
Washington, D.C., June 16, 1987 -- National civil rights
leaders of the Black Leadership Forum called on federal and state
officials to end racial discrimination in the administration of
the death penalty. The announcement, detailed in a two page
resolution, came on the same day that the House Subcommittee on
Criminal Justice will hold hearings on the widely criticized
Supreme Court decision which upheld Georgia's death penalty,
despite strong evidence that it is applied in a racially
discriminatory manner.
In denouncing the ruling, the Black Leadership Forum declared
that "(r)acial discrimination in the administration of criminal
justice is a violation of the basic rights of equality and
humanity."
The 19 black leaders who signed the resolution, led by
of Negro Women, and Julius Chambers, Director-Counsel of the NAACP
Legal Defense Fund, which brought the Georgia race bias suit,
———
-~MORE--
-2-
executions until the effects of racial discrimination have been
eradicated.
Other Forum members are: Councilman John Barnes, President,
National Black Caucus of Local Elected Officials; Willie T. Barrow,
Executive Director, Operation PUSH, Inc.; Steve Davis, Executive
Director, National Newspaper Publishers Association; Congressman
Mervyn Dymally, Chairman, Congressional Black Caucus; Richard G.
Hatcher, Mayor of Gary, Indiana; Norman Hill, Executive Director of
the A, Philip Randolph Institute; M. Carl Holman, President,
National Urban Coalition; Benjamin Hooks, Executive Director,
NAACP; John Jacob, President, National Urban League; Ada Jackson,
President, Greek Letter Organizations; Elton Jolly, President and
CEO, 0ICs of America; Coretta Scott King, widow of the slain civil
rights leader Martin Luther King; Dr. Joseph Lowery, President,
Southern Christian Leadership Conference; William Lucy, Secretary-
Treasurer, American Federation of State, County and Municipal
Employees; Rev. Leon Sullivan, Chairman, OICs of America; Donald
Tucker, Chairman, National Black Caucus of Local Elected Officials;
and Eddie Williams, President, Joint Center for Political Studies.
The Forum members also called on Congress to enact
federal 1sgisiagion that ‘would bar states from carrying out
executions antil they assure that race is not a factor in death
sentencing. A total of hirteen men have been put to death in Georgia,
—————— ———————————————————
ruled on April 22, in McCleskey v. Kemp, that capital ponighnent
-~-MORE--
Seven of the 13 executeg were black; all but two of the condemned had white victims,
Julius Chambers saig of the resolution: "The Supreme Court has declined to address Overwhelming evidence of discrimination in the death Penalty. It is Clearly time for the state ang federal
BLACK LEADERSHIP FORUM
1120 G Street, NW.
Suite 900
Washington, D.C. 20005
(202) 628-2990
RESOLUTION
OF THE
BLACK LEADERSHIP FORUM
WHEREAS, the United States Constitution guarantees equal
protection of the law =-- including criminal laws -- to every citizen of
the nation, regardless of race or national origin;
WHEREAS, the administration of society's ultimate sanction =-- the
death penalty -- is a profound measure of the racial equality truly
afforded by a system of criminal justice;
WHEREAS, notwithstanding the provisions of the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution,
blacks and other racial minorities have historically suffered the
penalty of death in numbers disproportionate to their representation in
the population, while similar crimes against victims of minority groups
have received lesser punishments;
WHEREAS, the death penalty is today imposed in a pattern that
reveals the continuing influence of racial bias against criminal
defendants of color and against victims of color, as typified by the
record of the State of Georgia, where between the years of 1973 and
1980, 22% of blacks charged with the murder of whites were sentenced to
death, while 3% of whites accused of killing blacks received the death
penalty;
WHEREAS, the United States Supreme Court has decided that a
pattern of racially disproportionate sentencing, however striking or
persistent, does not offend the Constitution of the United States, and
has condoned the operation of an entire criminal justice system that
produces such sentences;
NOW THEREFORE BE IT RESOLVED, that the Black Leadership Forum
affirms that racial discrimination in the administration of criminal
justice is a violation of the basic rights of equality and humanity,
and that discrimination exists whenever black people are treated
differently than white people or whenever crimes against black people
are treated differently than crimes against white people;
-2=-
-- that the Black Leadership Forum insists that the
responsibility to root out racial discrimination in the administration
of criminal justice is an unavoidable obligation of all public
officials and of citizens of all races;
-- that the Black Leadership Forum declares that evidence cf
widespread racial discrimination in the administration of the death
penalty cannot be ignored or trivialized;
-- that the Black Leadership Forum calls upon Congress to
enact federal legislation which will be adequate to assure against
racial discrimination in the administration of the death penalty;
-- that the Black Leadership Forum calls upon Governors and
legislators to examine whether death sentences in their States have
been imposed discriminatorily, to cease executing people during this
examination, and to forbid the resumption of executions until the
eradiation of any racial discrimination is assured.
: -- that the Black Leadership Forum calls for continuing study
of the workings of the criminal justice system, so that racial
discrimination in every area of its administration and not merely in
death cases can be exposed and eliminated.
No. 84-6811
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1986
WARREN McCLESKEY,
Petitioner.
-against-
RALPH M. KEMP, Superintendent,
Georgia Diagnostic &
Classification Center.
Respondent,
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
PETITION FOR REHEARING
JULIUS L. CHAMBERS
JAMES M. NABRIT, IxT
*JOHN CHARLES BOGER
DEVAL L. PATRICK
VIVIAN BERGER
S9 Hudson Street
New York. New York 10013
(212) 219-1900
ROBERT H. STROUP
141 Walton Street
Atlanta, Georgia 30308
TIMOTHY XK. FORD
60C Pioneer Building
Seattle, Washington 98104
ANTHONY C. AMSTERDAM
New York University
School of Law
40 Washington Sg. Scuth
New York, New York 10012
ATTORNEYS FCR PETITIONER
Attorney of Record
CERTIFICATE OF GOOD FAITH
As attorney of record for petitioner Warren McCleskev,
I hereby certify, in accord with Rule 51.2 of the Rules of
the Court. that this petition for rehearing is presented in
good faith and not for delay.
Fy B
A 4 F . 5 E] % p
¥ ¥ Ey
% h
n.,
Dy rf i
\ Be Fl ; FN,
1 2 NJ p Py -
ER A PLY SN EN wl We bh !
JOHN CHARLES BOGER
-
IZ.
ITI.
CONCLUSION
TABLE OF CONTENTS
Petitioner's Ineffective Assistance of
Counsel Claim Could Be Significantly
Affected bv the Court's Resolution of
BURNOSY VV. SSMD Li vie vis miei ain Fine idly
This Case Presents a Francis v. Franklin
Issue Similar to That Raised in Burger v.
The Resolution of Petitioner's Giglio
Claim By The Court of Appeals 1s
Contrary To This Court's Decision In
United States v. Bagley and Other Cases
A. The Pertinent Facts o.oo. condense
B. The Questions Presented For Review
9 WB 8s a a's 88 8 8 88 8 A'S 8 8 8 se sss es a ae 8s sess "es @ a“ 8 ales
Table of Authorities
Bianton V. Bliasckphurn, 494 F.Supp. 895 (M.D. La. 1880) ...us: 14
Boone V. Paderick, 541 F.28 447 {4th Cir. 1978) 34, 15
Brady v, Marvliang, 373 U).8. B83 (1983) 16
Burger v. Kemp, v.88... , "55 U.8.L.W., 3318 (U.S... Nov,
4 19868) (No. 86-5375) ‘ 1:,2.7:8,10,17
DuBose v. Lefebre, 619 F.2d 973 (24 Cir. 1980) 14
Francis v. Franklin, U.8. , 85 L.2¢.24.344 (1385) 8.9,10
Giglio v. United States, 405 UJ.S. 150 (1972) 10.13 ,14°,17
Kimmelman v. Morrison, J.8. 91 L.EQA.28 305 (19386)... 2,7
Napue v. Illinois, 360 U.S, 284 (1359) 13,14.,15,17
Rose v. Clark, U.S... ,.92 L.FE.2¢ 460 (1988) 10
Smith v. Murray. 7.8. ©, 91 L.BG.24 434 {19088) aE
Strickland v. Washington, 466 U.S. 568 (1984) nin iD
Ternary v. Murray, J.8. °° , 90 L.B4d.24 27 {1986) 18
United States v, Bagley, D.s. B86 L.BEA.24 (19858)...110,14.17
gnited States v. Bigeleisen, 625 F.24 203 {8th Cir. 1980)... 15
United States v. Burler, 587 F.24 885 (9th Cir. 19178) 15
United States v. Hasting, 461 U.S. 499 (1983) i0
zant v. Stechens 482 U.S. 862 (1983) 6
- 3ii ~
SUPREME COURT OF THE UNITED STATES
October Term. 1886
WARREN McCLESKEY,
Petitioner,
RALPH M. KEMP, Superintendent,
Georgia Diagnostic &
Classification Center,
Respondent,
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
PETITION FOR REHEARING
Petitioner Warren McCleskev respectfully moves the
Court, pursuant to Rule 51 of the Rules of the Court, for an
asm a——
order granting a rehearing of this case. Petitioner submits
the following in support of his motion:
:
: PETITIONER'S INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM COULD BE SIGNIFICANTLY AFFECTED BY
THE COURT'S RESOLUTION OF BURGER V. KEMP
On November 3, 1986, the Court granted certiorari in
Burger vy. Kemp v.s. +88 7.8.L.W. 3318 {(0.8.,. Nov. 4
1986) (No. 86-5375) to consider. among other issues, whether
a death-sentenced Georgia inmate had been "denied the right
to the effective assistance of counsel, due to trial
counsel's failure to investigate and present available
~
A
mitigating evidence.’ Byisf for Petitioner at 1, Burger Vv,
emp. In Burger, the affirmative obligation of a defense
attorney to investigate relevant facts prior to trial -- an
issue touched upon only briefly in Strickland v. Washington,
466 U.S. 668, 685 (1984) and Kimmelman v. Morrison, 11. S.
81 L.BE4.24 308, 328 (1986) -~ is thus a major guestion
likely to be resolved before the end of the present Term.
A very similar issue was presented and decided below in
Warren McCleskev's case. l The subseguent grant of
certiorari 'in Burger constitutes an "intervening
circumstance of substantial or controlling effect" under
tid in naam
Rule 81.2.2 The Court should therefore either grant
Item
rehearing on this issue or, at a minimum, hold McCleskev v.
Kemp pending its resolution of Burger.
A. The Ineffective Assistance Claim in McCleskev
Petitioner McCleskey contended both in the District
Court and in the Court of Appeals that his trial attorney.
John Turner, utterly falled to render him the effective i
assistance guaranteed by the Sixth and Fourteenth
Amendments. Turner acknowledged during state post-conviction
proceedings that he interviewed none of the 96 persons
identified by the State prior to trial as potential
ic . . .
2 among them: (1) the surviving
\ witnesses (St. Hab. Tr. 31),
1 Sea J A. nN
23-32: 273-185.
nN
)
Although petitioner McCleskey did not include this
claim in his original petition for sceririorari
filed in June of 1985. the intervening resolution
of Kimmelman and the grant of certiorari in Burger
v. Kemp make this an appropriate issue for
consideration on. rehearing. See, e.g., White vw.
Taxas, 309 U.S. 631 (1839); id., 310 U.S. 530 {1940).
w
Each reference to the transcript of proceedings
held in tha Superior Court of Butts County, on
January 30, 1981, on petitioner's state habeas
corpus petition, wil} be indicated by the
abbreviation "St. Hab. Tr.”
victims of the furniture store robbery where the homicide
occurred: (ii) Ophie Evans, an inmate at the Fulton County
jail who testified that McCleskey confessed the murder to
him: and {(4ii) 5 ballistics expert whose testimony
ostensibly tied McCleskev to the murder weapon. (St. Hab.
Tr. 33). Instead, Tavlior relied on hie review--
approximately 4 days before the trial began (St. Hab. Tr.
35) -- of witness statements from the prosecutor's file (St.
Hab. Tr. 34), and on his brief cross-examination of four
witnesses during a preliminary hearing. (St. Hab. Tr. 35).
Defense attorney Turner also failed to prepare any
sentencing defense at all. Although on notice that the
State, as part of its case in aggravation, intended to
introduce several prior armed robbery convictions from an
adjoining county, Turner never checked to determine whether
those convictions had been set aside. Nor did he make an
independent effort -- beyond possibly speaking with
McCleskey and one sister -- to identify or present any
mitigating evidence at all on McCleskey's behalf.#4
dt ~~
4McCleskevy testified during a state habeas corpus :
hearing that he and Turner never discussed a penalty
phase defense:
Gg. What discussions did you have with John
Turner regarding putting on evidence at
your penalty phase?
A. That was new to me, too. TI didn't Know
anvthing about the penalty phase. It
was my assumption at that time that once
vou were found guilty. that was it, vou
know. I didn't find out until later as.
I was incarcerated that there was a
sentencing phase where you could present
witnesses in order to mavbe lessen the
penalty.
Q. What conversation did you have -- once
there was a verdict of guilty returned
by the jury. what conversations if an £ Vv
did you have with John Turner regarding
the next phase?
2
The District Court and the Court of Appeals reasoned
that none of these omissions resulted in prejudice to
McCleskey's defense. Both discounted Tavlior's failure to
interview any of the furniture store witnesses because
Taylor had examined four of them during the preliminary
hearing, and because Turner had reviewed the prosecutor's
witness statements four days before trial. (J.A. 227-28;
274). Yet this evaluation overlook is the crucial fact
that two of the four witnesses changed their testimony and
were able positively to identify McCleskey at trial, despite
earlier testimony at the preliminary hearing that they could
not identify him. (Tr. T. 296-300; 231-42).% John Turner's
guilt-phase defense of alibi rested heavily on the premise
that no State's witnesses would be able to identify
A. Okav. When the jury came out and they
found ‘a verdict of guilty, they was
about to go back out to deliberate
whether to give me life or death. So
Mr. Turner said, "if there is anything
you want to say to them, now is the
time." And I didn't know what to say
that I could possibly change their
minds. S50 I said, "I don't know what to
say . rn
ist. Hab. Tr. 153-54). Warren McCleskevy's sister
likewise testified that defense attorney Turner failed
to inform her about the sentencing phase or to seek her
help in obtaining mitigating witnesses. (St. Hab. Tr.
136-37; 143)
Turner himself testified that he had discussed possible
sentencing evidence both with McCleskey and with his sister
prior to trial, but that neither had identified any helpful
witnesses. (St. Hab. Tr. 80-82). It is undisputed that
Turner never independently sought out any additional
sentencing witnesses. He also admitted he never once even
discussed with McCleskey whether McCleskey should testify on
his own behalf during the sentencing hearing. (St. Hab. Tr.
83-84).
5 Each reference to the transcript of the trial of
the case, held in the Superior Court of Fulton
County on October 9-12, 1978, will be indicated by
the abbreviation "Tr. PT."
5
McCleskey as one of the ronbery participants. (St. Hab. Tr.
59-62). His failure even to interview those witnesses prior
to. trial thus deprived hin of information that would
radically have changed his entire guilt-phase strategy.®
The failure to interview the Fulton County Jail
->
witnesses, especially inmate Ophie Evans, was even more
prejudicial. The District Court explicitly found that
Evans testimony was certainly very damaging to
petitioner, and a pretrial investigation as to
what his testimony would be may have uncovered the
details of [Evans'] escape from a halfway house
and the pending federal charges against him, his
"understanding" with an Atlanta police detective,
his history of drug use. and his imaginative story
that he had gone to Florida and participated in an
undercover drug investigation during his escape.
Discovery of such evidence would have had
substantial impeachment value.
(J. A. 228.) Although John Turner admitted that he had
recognized the names of the Fulton County Jail witnesses on
the State's withess -llst (St. Hab. Tr. 73] and had
nsuspected that a jailhouse confession might De
forthcoming,” (J.A. 228), the District Court excused his
failure to investigate this damaging potential evidence on
the ground that Turner had nothing to worry about, since
petitioner had told Taylor that he had made no incriminating
statement. (J.A. 228). This analysis overlooked the obvious i
point that Evans' testimony -- especially if fabricated from
whole cloth -- needed to be anticipated and effectively
refuted by defense counsel.’
6 The District Court specifically noted that one of
the two witnesses, Mamie Thomas, changed her
testimony immediately after the preliminary
hearing. The Court found that "a later interview
with her may have disclosed the change of
testimony." {(J.4A., .228 n.38).
7 The Court of Appeals also discounted Tavlor's
failure to investigate Evans on another ground, to
be addressed infra, that Evans' testimony did not
affect the jury's verdict. {(J.A. 274). See
e
m
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—
—
| before McCleskey's jury had in fact been set aside on appeal
6
1 Turner's failure to investigate the State's aggravating
evidence was likewise extremely prejudicial to McCleskev,
since the three armed robbery convictions the State placed
-
| and were no longer valid. (St. Hab. Tr., Ex. WM-2). Under
| Georgia law in effect at the time of McCleskey's trial, the
convictions were inadmissible, since not based on "final
judgments." See 0.C.G.A. §§ 16-1-3(4) & 42-5-50. Under
federal law, moreover, the convictions were inadmissible
under Fant Vv, Stephens, 462 U.S. 8682 (1983); cf. Smirh wv.
Murrav, B.S. ; 91 L.Ed.2d 434, 457-58 (1986) (Stevens,
J., dissenting). The prosecutor in fact relied heavily on
the life sentences that had been imposed in these cases,
arguing to McCleskey's jury that any life sentence they
might impose in McCleskev's murder case could later be
overturned, on appeal, just as had these three prior
sentences. (Tr. T. 1019-20)
The District Court assumed that Taylor's failure to
challenge these convictions constituted ineffective
assistance (J.A. 229-30), but held that this issue was
"moot" in light of its grant of habeas relief to petitioner
on another ground (J.A. 230). The District Court also noted
that petitioner had eventually pleaded guilty to the prior
armed robberies and been given 18-year sentences: for that
reason, the District Court concluded that it was "unprepared
to say that in the context of all the evidence, the failure
of counsel to object to the introduction of this evidence
warrants petitioner a new trizl."” (J.A. 230). The Court of
Appeals similarly dismissed the impact of these prior
————— rp ——
Sr ————
convictions and life sentences. (J.A. 276). x
discussion at pp. 13-17.
7
Finally, McCleskey demonstrated that substantial
mitigating evidence would have been available on his behalf.
He offered the affidavits of local church members and high
school personnel (see St. Hab. Tr. 157-58; 225-26; 231-32;
227-30) as well as an affidavit, excluded by the District
Court, given by McCleskey's family minister (R. 264; 322-
23) to establish prejudice from Taylor's failure to conduct
an adequate penalty phase investigation.
Taylor acknowledged that, prior to trial, he had
concluded that the State "had almost an airtight case
against" McCleskey at the guilt phase (St. Hab. Tr. 58).
His failure to conduct any meaningful investigation to
prepare for the penalty phase -- bevond possible brief
conversations with McCleskey and his sister -- was thus
bonstitutionally indefensible. Through his inaction he "put
|
{] at risiy Both the defendant's right fo an 'Yample
opportunity to meet the case of the prosecution,”"'". . . and
In the reliability of the adversarial testing process.
A A a,
sn” _— dia \ —— a
a eo te IIA PA AA WHA -
immelman v.. Morrison, supra, 81 L.,E4.24 at 3 A)
Nn
McCleskev's jury was presented with absolutely no mitigating
1 evidence at all on McCleskev's behalf, even though
substantial mitigating evidence existed and was available
through sources that were Rnown to Taylor. (3t. Hab. Tr,
801). The District Court nevertheless held that Tavior's
actions constituted "a resonable effort to uncover
mitigating evidence.” (3.4. 231). The Court of Appeals
(agreed. (Td. 275),
The facts and constitutional issues before this Court
in Burger Vv. Hemp 3re sufficiently similar to those
presented by McCleskey v. Kemp that a grant of rehearing is
mere so —————————— —
appropriate. The Court should, at a minimum, hold McCleskey
ho
8
pending its decision in Burger. If vyelief is granted in
that case, rehearing should be granted in McCleskev to
| SS
determine whether a remand to the Court of Appeals for
further consideration would be warranted.
xz
THIS CASE PRESENTS A FRANCIS V. FRANKLIN
ISSUE SIMILAR TO THAT RAISED
IN BURGER wv. KEMP
Petitioner McCleskey's petition for certiorari to the
Court presents a second question identical to one on which
certiorari has subsequently granted in Burger v. Kemp:
whether "the trial court's instruction to the jury on the
element of intent -- an instruction virtually identical to
the one condemned in Francis v. Franklin. v.g. , B83
U.S.L.W. 4495 (U.S. April 30, 1985) -- was harmless error
beyond a reasonable doubt.” Petition for Certiorarl at i,
McCleskev v. Kemn., No. 84-6811.8
There is no dispute at all over whether the instruction
given to petitioner McCleskevy's jury was unconstitutional.
The District Court noted that "[tlhe charge at issue [in
McCleskevy] ... is virtually identical to those involved in
{Francis Vl] Franklin and in Tucker" (J.A. 199). The Court
of Appeals concurred (J.A. 277): it expressly assumed "that
the intent instruction in this case violated Sandstrom and
proceeded] to the issue of whether that error was
8 Compare Brief for Petitioner at i. Burger v. Kemp
No. 86-5375 ("Whether in this capital case, the
trial court's Jury instruction on malice and
intent. an instruction in all material respects
identical to the one found constitutionally
deficient in Prancis wv. Franklin, was harmless
beyond a reasonable doubt despite substantial
record evidence that at the time of the offense
Petitioner was intoxicated and was acting under
the direction and domination of his co-indictee?"
Ans
harmless." {(J.A. 278).
A majority of the Court of Appeals, observing that
McCleskey had mounted an alibi defense (J.A. 281), reasoned
a aa
that McCleskey had thereby "effectively conceded the issue
—————.—— Ao Aer sas
of intent, thereby rendering the Sandstrom violation
Rem ————— M————————
harmless. Y (J.0.. 282), The majority stopped short of a
ees n..
holding that Sandstrom violations are always harmless under
such circumstances; it relied here not only on McCleskey's
alibi defense, but also on the "overwhelming evidence of an
a ——— wo — —
82).
i S————————a ri
intentional killing. {J.A. (N
]
Judge Frank Johnson, writing in dissent for three
members of the Court of Appeals, strongly disagreed with the
majority's reasoning:
[Tlhe only way for intent to be 'not at issue' in
a murder trial is if the evidence presented by
either side provides no possible issue of fact
( with regard to- intent... I cannot agree with the
majority that no juror, based on any reasonable
interpretation of the facts, could have had a
reasonable doubt regarding intent.
Several factors in this case bear on the issue of
intent. The shooting did not occur at point- -blank
range. Furthermore, the of fficer was moving at the
time of the shooting. On the basis of these facts
and other circumstances of the shooting, a Juror
could have had a reasonable doubt as to whether
the person firing the weapon intended to kill.
{J.A, 3113. 3
Petitioner McCleskey contends that, as in Francis
itself, the behavior of his jury during its deliberations
lends "substance to the conclusion that the evidence of
intent was far from overwhelming." Francis wv. Franklin,
P.S. , 288. L.Bd.28 344, 3581 {1%85). After over two hours
A —————————
of deliberations, McCleskey's jury returned to the courtroom
to request further instructions on one issue: malice. { Ty.
ee eress————— ——————— ps —————————
T. 1007). After the trial court had re-read its malice
10
instruction to the jury. the Jury returned to . tha Jury room.
Less than 10 minutes later (TIr...T.-1009}) it returned to
—
apnounce a verdict of guilty of "malice murder.” (Tr. T.
1010). Compare Francis v, Franitlin, 85 L.24.24 at 352, 381
(error not harmless when jury requested re-charge on malice
and then returned with guilty verdict 10 minutes later).
In Rose v. Clark, 0.8. , 92 L..FBd.2d 460 (19886),
the Court observed that "our harmless error cases do not
turn on whether the defendant conceded the factual issue on
which the error bore" but rather "whether. on the whole
iC
record ... the error ... [is] harmless beyond a reasonable
doubt oo NL, .EE8.24 at 474, cuoting United Stares vy.
Hasting, 481 U.S. 499, 5:10 [1983). Here. where the State's
evidence of malice and intent was far from overwhelming, and
where the jury engaged in protracted deliberations: on the
SS ——————
issue of malice, the Sandstrom/Francis error cannot be
deemed harmless. At a minimum, the Court should decide the
issue only after it has resolved the related question now
pending in Burger v. Kemp.
THE COURT OF APPEALS' RESOLUTION OF
PETITIONER'S GIGLIO CLAIM IS CONTRARY TO THIS
COURT'S DECISION IN UNITED STATES wv. BAGLEY
AND OTHER CASES
A. The Pertinent Facts
Not a single witness saw the shooting of Atlanta police
officer Frank Schlatt, for whose homicide petitioner
McCleskey has been sentenced to death. To support lte
contention that McCleskey was the triggerman, the State at
——
trial relied upon two witnesses -- both of whom alleged that
McCleskey had confessed “the homicide to them -- as well as
A ——— a SUES a
upon certain circumstantial evidence linking petitioner to
yen,
the murder weapon {which itself was never found).
banana PRU UP—
e
r
[
a
One of the two witnesses against McCleskey was co-
defendant Ben Wright, -- a dominant actor in the armed
robbery (Tr. T. 651-57) and the most likely other suspect in
Ra
the shooting. Wright was himself strongly linked to the
murder weapon.
2 The only apparently unbiased evidence concerning the
identity of the triggerman thus seemed to be testimony from
a detainee at the Fulton County Jail, Ophie Evans, who
testified that McCleskey had admitted the shooting while
awaiting trial. Evans in fact gave crucial testimony on
three points: (i) he told the jury about McCleskey's
"confession"; (ii) he alleged that McCleskey "said ... he
would have tried to shoot his way out ... if it had been a
dozen” police officers (Tr. T. 87)) =—-- a statement which
later became a major foundation for the prosecutor's
argument to the jury on the issue of "malice" (see Tr. T.
974); and (iii) he singlehandedly cleared up a glaring
inconsistency in the testimony of one of the State's
pringteal witnesses.10
Evans was specifically asked both by the prosecutor and
by defense attorney Turner about any promises made in
exchange for his testimony. He denied any deals or other
9 Wright had personal possession of the weapon for
several weeks prior to the crime (Tr. T. 682), and
Wright's girl friend told police when Wright was
arrested that Wright had been carrving the weapon
on the day of the crime. (Tr.iT. 6831-32).
10 One of two store emplovees who placed McCleskey at
the scene -- a part-time beauty shop operator who
gave facials and testified on the stand that she
"never forgets a face" (Tr. T. 303) =-- described
the perpetrator as someone with "bumps" (Tr. T.
301) as well as a "blister scar on the left side
of his face.” (Tr. T. 304). McCleskey was: in fact
smooth-faced. Ophie Evans, alone among the
State's witnesses, testified that McCleskey had
acknowledged using make-up on the day of the
crime. Tr. 7. SI0-T1yr"
3
(\
]
arrangements. His actual testimony before the trial court
was:
Q: [Assistant District Attorney]: Mr. Evans, have I
promised you anvthing for testifying today”?
A: NG gir, vou ain't.
QO
Have you asked me to try to fix it so you wouldn't
get charged with escape?
A: No. sir.
Q: Have I told vou JT would try to fix it for you?
A: No, ‘sir.
(T. Tr., 868-69). On cross-examination Evans
expanded upon his evasion regarding promises made by the
State:
Ra S—— i
Jz Okay. Now, were you attempting to get vour escape
charges altered or at least worked out, were you
expecting your testimony to be helpful in that?
A: I wasn't worrying about the escape charge. I
wouldn't have needed this for that charge, there
wasn't no escape charge.
(T. Tr. 882).
Evans subsequently gave flatly contradictory testimony
before the state habeas court, admitting that he "wasn't
promised nothing by the D.A. Buf the [Atlanta police]
Defective told me that he would -- he said he was going to
do it himself, speak a word for nme. That was what the
Detective told me.” (St. Han, Tr. 122). (emphasis added).
The escape charges had indeed been dropped with the State's
assistance after McCleskey's trial. (St. Hab. Tr. 129).
The District Court, after identifving at least three
——
reasons why Evans' testimony had been critical to the
State's case {(J.A. 18%), concluded that the fallure to
disclose Evans' arrangement required a new trial under
familiar due process principles:
13
[G]liven the circumstantial nature of the evidence
that McCleskey was the triggerman who killed
Officer Schlatt and the damaging nature of Evans'
testimony as to this issue, the court does find
that the jury may reasonably have reached a
different verdict on the charge of malice murder
had the promise of favorable treatment been
disclosed. The court's conclusion in this respect
is bolstered by the fact that the trial judge. in
charging the jury as to murder, instructed the
jury that they could find the defendant guilty of
either malice murder or felony murder. After
approximately two hours of deliberation, the jury
asked the court for further instructions on the
definition of malice. Given the highly damaging
nature of Evans' testimony on the issue of malice,
there is a reasonable likelihood that disclosure
of the promise of favorable treatment to Evans
would have affected the judgment of the jury on
this issue.
{J.A. 190). On appeal, former Chief Judge Godbold, writing
for four members of the Court of Appeals, agreed with the
District Court that Evans' false testimony required habeas
corpus relief. (J.A. 287-89).
A majority of the Court of Appeals, however, held that
the detective's arrangement with Ophie Evans "falls far
——
short of the understandings that constitute 'promises'
——————
within the meaning of Napue v. Illinois. 360 U.S. 264 (1959)
and Giallo v. United States, 405 U.S. 180 {41972)." {J.4.
240-42). Alternatively, the majority concluded that the
nondisclosure was harmless error, since the jurv had learned
Pr.
that Evans had a prior criminal record, which itself exposed
Evans' credibility, the majority reasoned, "to substantial
impeachment." (J.A. 242).
B. The Questions Presented for Review
The majority of the Court of Appeals began its analysis
with a statement that this Court "has never provided
definitive guidance on when the Government's dealings with a
prospective witness so affect the witness' credibility that
they nust be disclosed at trial.” (J.A. 241). Petitioner
14
McCleskevy has contended to the contrary that Napue and
Giglio plainly indicate that the Due Process Clause reaches
informal or contingent agreements with government agents, ( ——————————.
a EN P— hed A ————_s
Se®,. 8.,.4dg., Napue v, Illinois, 380.0.8S. at 26868 ("as
recommendation for a reduction of ... sentence would be made
and, if possible, effectuated"), whether made with the
prosecuting attorney in charge of the case or with other
hy PO
prosecutors or police officers. See, e.g., Giglio v. United
States, 405 U.S. at 154.
Subsequent to petitioner's submission of his petition
for certiorari, the Court decided United States v. Baglev,
‘g.8.;. ,%868 L.B4.24 {1988), explicitly holding that
[tlhe fact that the [consideration offered to the
testifying witness] was not guaranteed through a
promise or binding contract but was expressly
contingent on the Government's satisfaction with
The end result, served only to strengthen any
incentive to testify falsely in order to secure a
conviction.
86 L.Ed.2d at 197. Bagley echoes the rationale expressed by
the Fourth Circuit in Boone Vv. Padericlz, 541 F.28 447 {4th
Cir. 1978), that
[rlather than weakening the significance for
credibility purposes of an agreement of favorable
treatment, tentativeness may increase its
relevancy. This is because a promise to recommend
leniency (without assurance of it) may be
interpreted Dy the promlisee as contingent upon the
quality of the evidence produced -- the more
\ uncertain the agreement, the greater the incentive hi
\ to make the testimony pleasing to the promisor. ’
Id. ‘at 451. Other circuits which have considered this
guestion have all adopted the rule of Bagley and Boone.
E.G.» DuBose V, Lefabre, 619 F.28 973, 977 (24 Cir. 1980)
I
fT
{prosecutor agreed to "do the right thing" for witness
——————— YA
regarding pending indictment); Blanton v. Blackburn, 494
F.Supp. 895. 901 (M.D. Ia. 1980), aff's, 654 F.28 719 {5th
Cir. Unit A. 1980) (imprecise agreements reached with four
~~
158
of five kev witnesses); United States v. Bigeleisen, 625
F.2& 203, 205 {8th Cir. 1980) (promecutor agreed to "make
witness' cooperation known to authorities”); United States
v. Butler, 567 F.2d 885, 888 (9th Cir. 1978) (agents told
witness "they were going to do everything they could to help
him"). On this issue, therefore, the McCleskey majority is
squarely in conflict with other circuits as well as with the
4 ER ™ —
most recent pronouncement of this Court. \
PC
The majority's alternative holdings. that any error was
harmless, is based largely upon its failure to appreciate
the central insight of Bagley and Boone: uncertain or
i
Noa
tentative promises provide especialy strong incentives for a
"im ——— a ——— - : SII
witness to lie, and are therefore particularly important to
— Rt i SA ih hci ct a E — . - pa tC
a jury. Moreover. the majority's "harmless error" analysis
involves another critical error, for it assumes that the
general impeachment value provided by evidence of Evans'
prior crimes rendered irrelevant undisclosed proof of a
specific incentive for Evans to lie in McCleskey's
particular case. The evidence of Evans' prior crimes,
however, went solely to his general bad character. By
contrast, the promise made to him by a police detective
provided a strong, immediate motivation to testify falsely.
Considering a far less crucial distinction in Napue Vv.
Tllinois, this Court held that "the fact that the jury was
apprised of other grounds for believing that the witness
may have had an interest in testifving against petitioner
Ne tmacmimmem—r
[did not turn] what was otherwise a tainted trial into a
3 11 lp) 3 fair one." 360 U.S. at 270 (emphasis added). 5 A IR
——
In sum, the fact that McCleskey's jury learned about
Bvans' prior criminal record simply 4id not excuse the
State's failure to reveal Evans' understanding that a State
16
official would help clear up his then-pending federal escape
charge if he agreed to testify against McCleskey. The jury
weighing life or death should have been told how very. very
slender was the support for the State's contention that
McCleskey had been the triggerman.
ry
The majority's harmless error analysis appeared fatally
jflawed in yet 2a third way. The majority acknowledged (1)
— a
eit "the only other testimony which indicated [that
McCleskey] pulled the trigger came from his co-defendant,
Ben Wricht" (J.A. 242), and (iil) that, under Georgia law,
"an accomplice's testimony alone ... is insufficient to
Ne p— ES ——— dt a id A AA Yet CA aa Ai
establish a fact." {(1l&.) It nevertheless discounted the
VV c—
importance of Evans' testimony, by concluding that "Wright's
testimony ... Was corroborated by McCleskey's own
confession." (Id.) Yet, as the dissenters recognized
Wright's testimony [that McCleskey had confessed]
could not be-used to corroborate Wright's
otherwise insufficient accomplice testimony
The other 'confession' was made to Evans ... Thus
Evans' is not a minor incidental witness. Evans'
testimony, describing what McCleskey "confessed"
to him is the ‘corroboration "of the only
eyewitness, Wright."
{J.A. 289)
It is inconceivable that Evans' testimony, which in
this capital case bore heavily both on guilt of malice
murder and on the propriety of a death sentence, see
generally Brady v. Marvland, 373 U.S. 83 (1963) (suppressed
evidence could have affected sentence, but not guilt): cf.
TUrnéry Vv. Murray, ¥.5. 90 -LuRd.28 27, 35 (1988),
could be found harmless beyond a reasonable doubt.
On these extraordinary facts, with Warren McCleskevy's
life in balance, the Court should grant this petition for
rehearing. grant certiorari, and either consider this claim
on the merits or summarily reverse on the authority of
—— TE ————————
17
Bagley, Giglio and Napue.
CONCLUSION
The Court should (i) grant petitioner's motion to
rehear this matter and should either (ii) grant certiorari
on the issues presented in this petition, {111) hold this
De —
petition until the Court's disposition of Burger v. Eemp,
No. 86-5375; or (iv) summarily reverse in light of gnired
rene
States v. Baglev.
Dated: May 16, 1987 Respectfully submitted,
JULIUS L. CHAMBERS
JAMES M. NABRIT, 111
* JOHN CHARLES BOGER
DEVAL L. PATRICK
VIVIAN BERGER
99 Hudson Street
New York, New York 10013
(212) 219-1900
ROBERT H. STROUP
141 Walton Street
Atlanta, Georgia 303083
TIMOTHY X. FORD
600 Pioneer Building
Seattle. Washington 98104
ANTHONY C. AMSTERDAM
New York University
School of Law
40 Washington Sg. South
New York, New York 10012
ATTORNEYS FOR PETITIONER
*Attorney of Record
CERTIFICATE OF SERVICE
I hereby certify that I am the attorney of record in
this action, and that I am a mambey of the bar of this
Court. I served the annexed petition for rehearing on
respondent by placing copies in the United States mail,
first class mail, postage prepaid, addressed as follows:
Mary Beth Westmoreland, Esqg.
Assistant Attorney General
132 State Judicial Bldg.
40 Capitol Square S.W.
Atlanta, Georgia 30334
All parties required to be served have been served. Done
this day of May. 1987.
(had Bp
JOHN CHARLES BOGER
HARVARD LAW SCHOOL
CAMBRIDGE - MASSACHUSETTS - 02138
January 18, 1987
Dear Napoleon,
Thank you very much for sending me the briefs in U.S. v.
Paradise. They were a big help for the students who prepared and
presented the argument in that case. The class voted 17 to 2 to
support the district court's one to one interim quota on
promotions...although during the conference there were
expressions of concern about "innocent victims" and the perhaps
unnecessary harshness of the order. Reminding them of these
expressions a few days later, I read from the enclosed clipping
about the lengths to which certain police officials in Boston
were willing to go to prevent blacks from promotion to positions
they had earned the hard way.
Thanks also for the transcript of the McCleskey v. Kemp
argument. I copied it for the class and wrote the covering memo,
a copy of which is attached. The students wanted to join me in
expressing our appreciation to you for these materials.
Sincerely,
Derrick Bell
MEMORANDUM
January 19, 1987
TO: Members, Supreme Court Decision Making Course
FROM: D. Bell
SUBJECT: McCleskey v. Kemp oral argument
Given our experience with this case, I think you will find
this transcript of the oral argument quite interesting...though
the questions are less meaningful because for the most part, the
judicial questioners are not identified. I think both advocates
did well...in traditional terms, but I wonder whether you will
agree with me that both could have strengthened their cases by
more candid references to the "inner factors" in the case, i.e.,
the potential significance of this decision however the Court
decides it.
Suppose in his impressive opening, Mr. Boger had been able
to address directly and forcibly the Court's concern that if he
wins, the whole death penalty must fall?! Or, if General
Westmoreland had been able to suggest a standard of proof for
death cases that would not distort the burden of proof in other
discrimination issues beyond any possibility of proof? She
hardly took much of a risk as she finally conceded that if the
disparity were 20 times greater that a black killing a white
would get the death penalty, that might make out a prima facie
case (p. 48). Note her urging for a case like Yick Wo or
Gomillion v. Lightfoot, "where there's simply no other conclusion
that can be drawn." (p. 48). Unhappily, that is about the only
statistical evidence the Court seems ready to accept as proof of
discrimination. :
Actually, comparing the points discussed in the transcript
with those by counsel Yeh, Barr, and Kravitz, I found few points
we did not address. The Court, like us, was hampered in having
to rely on argument rather than first-hand evaluation as to the
validity and worth of the Baldus-Woodworth study. Note how about
one half of each argument was devoted to questions addressing the
validity of the study.?
1 see p. 17, where Boger waffles in response to direct
question re whether he sought the abolition of the death penalty.
2 I saw little indication that the Court's familiarity with
statistics had much improved over the last two decades since
Justice White wrote the majority opinion in Swain v. Alabama, 380
U.S. 202 (1965). In that jury discrimination case, the
The
Je
pk
ne
-
Lee,
»™
.
.
Rather clearly, Boger's position is undercut by what
McCleskey was convicted of doing, a murder that seemed to have no
white counterparts of similar severity. Westmoreland properly
focused on the facts in this case. Note how much better his
position on the legal points would be if his clients were the
Sweets, a black family in the 1920s, all of whom were charged
with murder after one of a mob of violently rioting whites was
killed by a shot fired from the Sweet house.3
Given the facts, the real question is less the one asked
Boger, p. 27, whether he wasn't seeking more death penalties for
those convicted of capital crimes, but whether a defendant, like
McCleskey should be able to benefit from the fact that the murder
of blacks is far less likely than the murder of whites to result
in the death penalty,4 and (as I assume the study shows) unless
they kill whites in circumstances posing a threat to white
domination, blacks are less likely than whites to receive the
death penalty.
Keep in mind that this heated debate over the significance
of statistical support for what we all really know about the
impact of racism on the imposition of the death penalty is a
constitutionally-sensitive lever for the far more pervasive
problem: that only the poor or the lower classes (white and
black) are ever sentenced to death regardless of the aggravated
circumstances of their homicidal actions.
>
defendant, contending that for 20 years blacks had been severely
underrepresented on grand and petit jury panels in the county,
showed that black adult males were 26 percent of the adult male
population, but made up only 10 to 15 percent of the people
chosen to be on the panels. Dismissing the argument, White said
that the underrepresentation of blacks was only 10 percent.
Actually, the disparity was close to 50 percent of the eligible
blacks.
3 The Sweets were represented successfully by Clarence
Darrow. His verbatim summary argument to the jury is reproduces
in Attorney for the Damned 229 (A. Weinberg, ed (19).
4 See, p. 42 only 20 death sentences resulted from the
killing of 1,500 blacks, while out of about 970 white victims,
there were over 100 death sentences.
n
m
.
{
i
|
|
i
}
-on April 21, 1986, failed to reflect the Court's limitation of
the issues to a single question. The summary, as corrected, is
reprinted below:
85-6461 MARTIN v. OHIO
elf-defense — Burden of proof.
Runs below (Ohio SupCt, 21 OhioSt3d 91, 38 CrL 2383
(1986)):
Murder defendants who assert self-defense may constitution-
ally be required to prove, by preponderance of evidence, truth
of that defense, which does not negate any essential element of
crime charged.
Question presented: Can state constitutionally require ac-
cused who defends against murder charge on grounds of self-
defense to prove himself not guilty?
Petition Tor certiorari fited-3/3/86, by James R. Willis, of
Cleveland, Ohio.
IN-CHAMBERS OPINION
On October 15, 1986, Justice Scalia issued the following
opinion in his capacity as Circuit Justice for the U.S. Court of
Appeals for the Sixth Circuit.
A-247 (86-572) Kentucky v. Stincer. On application for stay.
I doubt the conclusion of the Kentucky Supreme Court that
the Confrontation Clause of the Sixth Amendment gives an
accused child-molester the right to be present at the hearing
inquiring into the competency of his child victim to testify. I
see, moreover, at least a “fair prospect” that a majority of this
Court would find that conclusion erroneous. See Rostker v.
Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in cham-
bers). However, approximately one month after this case was
decided the Kentucky Legislature enacted a statute providing
specific procedures for securing the testimony of young victims
of sexual abuse. See Ky.Rev.Stat. §421.350 (Supp. 1986). The
Supreme Court of Kentucky has upheld the validity of that
statute, even though it does not require presence of the accused
at the competency hearing. See Commonwealth v. Willis,
S.w.2d (July 3, 1986). Since, therefore, it is unlikely
that the issue presented by this case will arise again in
Kentucky, and since 1 am unaware of any other State which
has resolved the issue as did the Kentucky Supreme Court, see,
e.g., State v. Taylor, 103 N.M. 189, , 704 P.2d 433, 449
(App. 1985); Moll v. State, 351 N.W.2d 639, 644 (Minn. App.
1984); People v. Breitweiser, 38 Ill. App.3d 1066, 1067-1068,
349 N.E.2d 454, 455-456 (1976); State v. Ritchey, 107 Ariz.
552, 555, 490 P.2d 558, 561 (1971), I cannot discern “a
‘reasonable probability’ that four Justices will ... [vote] to
grant certiorari. ...” Rostker v. Goldberg, supra, at 1308
(citations omitted). The application for stay of the Common-
wealth of Kentucky is accordingly
Denied.
ARGUMENTS HEARD
CAPITAL PUNISHMENT — EQUAL PROTECTION
— RACE-OF-VICTIM BIAS
The Supreme Court recently heard arguments in a
pair of cases that pose one of the last remaining broad
challenges to state capital punishment schemes in the
equal protection areg. In both cases, condemned defen-
dants ask the Court to rule that statistical evidence
demonstrating that capital defendants whose victims are
white receive the death penalty significantly more often
than those whose victims are black is enough to establish
the unconstitutionality of the sentencing scheme
McCleskey v. Kemp, No. 84-6811; argued 10/15/86.
In the first case, from Georgia, the defendant present-
ed at a federal habeas corpus hearing detailed statistical
studies suggesting that a capital defendant in that state
is far more likely to be sentenced to die if his victim is
white. These studies, which were conducted by Universi-
“®y of Iowa Professor David C. Baldus, noted that black
defendant-white victim cases were nearly 11 times more
likely to result in a death sentence than were cases in
which both the defendant and victim were black. Em-
ploying multiple regression analysis, which controlled for
hundreds of other factors that might possibly be contrib-
uting to the disparity, the studies found that the overall
odds of receiving the death penalty were more than four
times greater for those whose victims were white than
for those whose victims were black. The district court
rejected the defendant's argument, and the Eleventh
Circuit affirmed, 753 F2d 877, 36 CrL 2429 (1985),
holding that, regardless of the constitutional peg on
which such a claim is hung, a showing of racially
discriminatory intent must be made.
ed that the disparities found in th
great as to create a presumption that Georgia’
unconstitutional.
10-22-86 0011-1341/86/$00.50
UNCONSTITUTIONAL EFFECT
John Charles Boger, of New York City, began his
argument on behalf of the defendant by noting that
Georgia's death penalty statute would clearly be uncon-
stitutional if it provided harsher penalties just because
the defendant was black or the victim was white. The
state once had such laws, he said, but the Fourteenth
Amendment put an end to that. However, old habits die
hard, Boger suggested. Evidence shows that, under Georg
gia’s statutory scheme, a black defendant goes*tt wg
with a disadvantage. We have documented the role Tze
has played in sentencing black defendants, counsel said.
Even after taking all other possible sources of error
into account, Boger contended, defendants who kill
whites are four times more likely to receive the death
penalty than those who kill blacks. The Baldus studies
are very reliable, he asserted. and they provide a power-
ful indictment of Georgia's capital punishment system.
Yet the state has not tried to disprove the notion that
racial discrimination is the basis for the disparity docu-
mented in the studies, nor has it tried to advance a
paramount state interest that would justify the result.
Rather, the state’s answer has been a narrow attatk on
the procedure used in the studies.
Justice White: Who read the data underlying the
studies?
Boger: Law students, but under strict supervision and
pursuant to established protocols.
Justice White: Didn't the district court question the
validity of the data in the studies?
Boger: Yes, but Professor Baldus went back in each
instance and reworked the figures, and showed that the
changes in the results would have made no significant
difference.
Justice O'Connor: Getting to the constitutional issue,
rf] $v 4c elias WEL s ac a Aaland 1f the study 1s assumed to be valid, what does a defend-
40 CrL 4061
ant have to show to demonstrate a violation of the Equal
Protection Clause or the Eighth Amendment? Doesn’t
he have to show intentional discrimination?
Boger: Yes, but I believe we've done that. Inferential-
ly, of course. :
Justice O'Connor: Is there any case in which a court
has recognized such an argument on the basis of a
statistical study?
Boger: Washington v. Davis, 426 U.S. 229 (1976), for
instance.
Justice O'Connor: Isn't this, though, actually a case of
alleged discrimination on the basis of the victim's race?
I'm not sure that establishes discrimination against the
defendant.
Boger: Well, if Georgia had a statute that had this
effect, it would clearly be unconstitutional.
Justice O'Connor: What is the remedy? To execute
more people? To abolish the death penalty altogether?
You don’t suggest that Georgia's statute is facially
unconstitutional, do you?
Boger: No, but it is in its effect.
The Chief Justice: Don’t you have to show that this
jury discriminated?
Boger: We have made that showing. We have shown a
pattern. ..
The Chief Justice: But not in this case. Is Bazemore v.
Friday, 106 S.Ct. 3000, 54 LW 4972 (1986), consistent
with your position?
Boger: Yes.
Justice Powell: What were the, aggravating circum-
stances in this case? .
Boger: Killing in the course of a robberyggnd killing a
police officer. This is a serious crime, of course, but this
is not the sort of crime that generally resgimin the dgath
penalty in Fulton County or in the state of Georgia.
Justice Stevens: I assume your argument would extend
to convictions as well as to sentences.
Boger: We haven't seen such a pattern in the context’
of convictions.
Justice Stevens: 1 assume that the discrimination dr-
gument would extend to other characteristics of defen-
dants. such as those who are shifty-eyed, for example.
Boger: No, there is no heightened protection where a
mere physical characteristic is concerned.
But this is not some sort of statistical fluke or aberra-
tion. Bog® emphasized. We have shown a pattern of
discrimination.
Justice O'Connor: This is a curious claim. A capital
defendant usually comes before this Court seeking mer-
cy. But you basically argue that not enough defendants
are being executed. Are our cases giving capital juries
more discretion erroneous?
Boger: No, but the line must be drawn at racial
discrimination.
NO INFERENCE CREATED
Assistant Georgia Attorney General Mary Beth West-
moreland noted that the Baldus study characterized
ase as a “mid-range” capital murder case, even
killing occurred during a robbery in broad
a
in which a police officer was slain and seven persons
were held hostage. Just on the basis of this, the study is
of questionable validity, she contended.
40 CrL 4062 0011-1341/886/$00.50
= Ea as SOIL Liss Eagan
Justice Stevens: Were there any mitigating
circumstances?
Westmoreland: No.
Justice Stevens: Are there many other cases like this
in which death was not imposed?
Westmoreland: I don’t believe that the study really
shows this. There were some police-killing cases, but the
circumstances were entirely different in those cases. In
fact, the Eleventh Circuit agreed that there were no
factually similar mid-range cases.
Justice Stevens: Is this a legal issue or an evaluation of
factual findings? If we disagree that the legal point is in
your favor, shouldn’t we send the case back for factual
findings on the validity of the study?
Westmoreland: That is one alternative.
Contrary to the defendant’s contentions, Westmore-
land continued, the Baldus study is neither accurate nor
complete.
Justice Marshall: Did the state put on expert testimo-
ny before the district court, or did you simply set
yourselves and the court up as experts on statistics?
Westmoreland: No, we put on two statistical experts
to evaluate the methods used in the study.
Our central point, she declared, is that each case is
different on its facts and therefore cannot be validly
compared on the basis of statistics.
Justice Stevens: Your position is that the disparity
shown in the study is entirely attributable to the fact
that the white-victim cases are consistently the more
serious ones, is that correct?
Westmoreland: Yes. The qualitative difference in the
two types of cases explains™®®disparity.
Justice O'Connor: What if we accept the study and
address the legal argument discussed by the Eleventh
Circuit? ;
Westmoreland: We submit that no intentional dis-
crimination can-be shown and that this is the proper
legal standard. RB ” ¢
Justice O'Connor: What about the argument that
prosecutors discriminate in deciding when to seek the
death penalty? an se
Westmoreland: This is too subjective«a. process to be
quantified. :
Justice Stevens: What if we assume that the statistics
are right: a black defendant who kills a white is 11 times
more likely to be sentenced to death than one who kills a
black?
Westmoreland: That does not establish a prima facie
case of discrimination.
Justice Stevens: What would?
Westmoreland: There may be a point, but it was not
reached here.
I reiterate, counsel stated, that it is not appropriate to
use statistical analysis where so many individual circum-
stances play a role and the jury is involved in the process
of expressing the community's outrage. The evidence
esented in this case was insufficient to create the
ference of discrimination that the Court has drawn in
contexts, she concluded.
Wainwright, No. 85-6756; argued
The other case. from Florida, involved a similar alle-
gation. based on statistical analysis, that that state's
10-22-86
capital sentencing system is infected with race-of-victim
bias. The Eleventh Circuit rejected this contention here
as it did in McCleskey. 770 F2d 1514, 38 CrL 2013
(1985). On another issue as to which the Supreme Court
also granted certiorari, the court of appeals further held
that the defendant was not entitled to be resentenced
because Florida statutory law at the time discouraged
the introduction of non-statutory mitigating factors at
capital sentencing hearings. Florida law in effect at the
time of the defendant's trial confined consideration of
mitigating factors to those enumerated in the statute, as
Cooper v. State, 336 So2d 1133 (Fla 1976), made clear.
The trial occurred before Lockett v. Ohio, 438 U.S. 586
(1978), held that the sentencer in a capital murder case
may not be precluded from considering any aspect of the
defendant’s character or offense in mitigation. The Elev-
enth Circuit ruled that this sort of claim must be
addressed on a case-by-case basis, and then went on to
decide that nothing in the record indicated that the
admission of non-statutory mitigating evidence would
have resulted in the imposition of a different sentence.
JURY'S DISCRETION HAMPERED
Craig S. Barnard, of West Palm Beach, Florida,
arguing for the defendant, focused first on the mitigat-
ing circumstances issue. He asserted that the unconstitu-
tionality of the Florida death penalty statute at the time
of the defendant’s trial resulted in a restriction of de-
fense counsels ability to present mitigating factors.
Justice O'Connor: But defeif® counsel did introduce
non-statutory mitigating factors in this case. How can
we know that other mitigating evidence would have been
presented if the statute had been différent?
Barnard: The key is not the effect of having mitigat-
ing factors in the record.
The Chief Justice: Then what is the key?
Barnard: It has to do with what can be considered by
the sentencer under the statutory framework.
Justice Scalia: But isn’t your argumentthat the judge
didn’t let in certain mitigating factors, because he in-
structed the jury that it could only consider the mitigat-
ing factors listed in the statute?
Barnard: Yes, but I also want to address the factual
argument. BE. oF
The defense lawyer in this case was “on a leash.”
Barnard said. He didn’t present non-statutory mitigating
factors as reasons to grant a life sentence, but only
commented that he was presenting themfor the jury to
consider for whatever purpose they found appropriate.
The statutory mitigating factors, on the other hand, were
presented in great detail.
Justice Scalia: But if, as the state argues, the statute is
vague concerning whether non-statutory mitigating fac-
tors can be considered, isn’t there a difference between a
case where counsel is denied an opportunity to present
any non-statutory factors and one in which he is permit-
ted to introduce some?
Barnard: Yes.
Justice Marshall: Doesn't it end with the fact that the
defendant didn’t proffer any non-statutory mitigating &
far ~ =
faclors.:
10-22-86 0011-1341/86/800.50
The Florida statute operated to bar very relevant
evidence regarding the defendant's character, which is a
factor at the very core of a capital sentencing determina-
tion, Barnard maintained.
PRIMA FACIE CASE
Turning to the racial discrimination issue, Barnard
commented that this case is more or less the same as
McCleskey. We have established a prima facie case of
discrimination, he asserted, in view of the overall sen-
tencing disparity revealed by statistical studies. the
unique opportunity for racial discrimination in death
penalty cases, and the well-established pattern of racial
discrimination in Florida.
NO LIMITATION
Sean Daly, Assistant Florida Attorney General, ar-
gued that the jury instruction in this case did not really
limit the jury’s consideration of mitigating factors.
Justice Scalia: I read the instruction to limit the jury’s
discretion in deciding what factors to rely on.
Daly: While the judge did tell the jury that it could
consider the mitigating factors listed in the statute. he
did not preclude the consideration of non-statutory ones.
Justice White: Assume the judge did limit consider-
ation of non-statutory factors. Wouldn't this be a prob-
lem under Lockett, and shouldn’t we reverse?
Daly: Yes, but we don’t agree with that interpretation.
The parties here did not view themselves as being limited
by the Cooper-Lockett problem. As a matter of fact, the
Eleventh Circuit has sent back cases in which the trial
judge gave some sort of indication that he felt limited:
but 1t did not do s6 in this case.
Justice White: Aren’t you making a harmless error
argument? .
Daly: Yes.
Justice White: Then you concede that there was error.
Justice White also asked who, in counsels view, has
the burden in this situation of showing the impact on the
sentence imposed. Daly said that burden is on the
defendant. :
STATISTICS INAPPROPRIATE
Addressing next the issue of race-of-victim bias, Daly
commented that the defendant mounts an attack on the
entire Florida capital punishment system, asking the
Court to shut down the system and look back in ten or
15 years to see where the problem was. This, he contend-
ed, is entirely inappropriate in an area where highly
individualized facts govern the decision.
Daly said that the state would ask for a bright-line
rule: Multiple regression statistical analysis can never
serve as a basis for even an evidentiary hearing on a
discrimination claim. Such an approach can never work,
he suggested, because we can’t have a mandatory death
penalty, given the discretion that the sentencer must be
accorded in capital cases. Statisticians cannot control
other factors enough to be abie to say that a particular
system is unconstitutional, he asserted
A possible solution where ial bias is suspected,
Daly noted, is for defense counsel to thoroughly question
r potential jurors on the issue before they are
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No. 84-6811
Ix ==
Supreme Cmut of the Hnited States
OcroBer Tru, 1985
WakreN McCLESEEY,
Petitioner,
JOE.
Rarrz JM. Keup, Superintendent,
Georgia Diagnostic & Classification Center.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR TEE ELEVENTH CIRCTIT
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND BRIEF AMICI CURIAE FOR DR. FRANKLIN M. FISHER.
DR. RICHARD O. LEMPERT, DR. PETER W. SPERLICH.
DR. ARVIN E. WOLFGANG, PROFESSOR HANS ZEISEL
& PROFESSOR FRANKLIN E. ZIMRING IN SUPPORT
OF PETITIONER WARREN McCLESKEY
EE eee ——————————
eT ————————
Miczaen O. FINm=rsTzIv
Miptvy F. Ricguax®
BABRETT SMITE SCELPIRO
Spioy & ARMSTRONG
26 Broadway
New York, New York 10004
(212) 422-8180
Attorneys for Amici Curiae
*(Counsel of Record
TABLE OF CONTENTS
TABLE OF AUTHORITIES + ¢ o + o vv +s a
MOTION FOR LEAVE TO FILE BRIEF AMICI
CORIAE wile +s er vie a on ow.» i
BRIEF AMC NaN o shel ein ow wi wie X
SUMMARY OF ARGUMENT . . . . . . . if
ARGUMENT . . . ; > elie" lof Fete 8
I. THEE BALDUS STUDIES
DEMONSTRATE THAT IN THE
STATE OF GEORGIA, THE
RACE OF THE HOMICIDE
VICTIM HAS BEEN AN
IMPLICIT AGGRAVATING
CIRCUMSTANCE WITH A
SUBSTANTIAL IMPACT ON
THE RATE OF CAPITAL
SENTENCING « + vo oo ‘si i6 0 tailie 8
IT. THE BALDUS STUDIES
EMPLOYED EXCELLENT,
PROFESSIONAL METHODS OF
EMPIRICAL RESEARCH AND
PRODUCED STRONG,
RELIABLE FINDINGS ON
THE ROLE OF RACE IN
GEORGIA'S CAPITAL
SENTENCING SYSTEM “. + '¢ « 20
CORCIUSION vo ov. sifie 0 é oo sien 39
TABLE OF AUTHORITIES
Cases Pages
Ballew v. Georgia, 435 U.S.
223 (1972) LJ LJ LJ [J ® » LJ » % A +iv.vi
Bazemore v. Friday, 7.5. —— SRI
BRE. 24 (1986). vv ov lt, 35,30
Hazelwood Schecol District v. United
States, 433 U.8. 299 (1977). « « «30
McCleskey v. Kemp, 753 F. 2d 877
{lier Cir. 1088) (enn banc), . «Vv, 186
McCleskey v. Zant, 580 F. Supp.
388 (H.D.- G8. 1384), ov ov ¢ ¢ ¢.21,237
Segar v. Smith,
738 FT. 24 1249 (D.0, Cir. 1984). 30
Teamsters v. United States,
$31 B.S. 324. (1877). vii. a 30
Vuyanich v. Republic National
Bank, 505 PF.Supp.244 {(N.D. T1=X.
1980), vacated on other grounds,
723 7,24 1198 {S&h Clr. 1984). . 30
Statutes
Former Ga. Code Ann.
§27-2834.1(68))Y(2)¢ + aia 10
Other Authorities
Fisher, Multiple Regression
in Legal Proceedings, 80 Colum.
TT. Rev. 702 (1980) Ad B® LJ MM ® LJ 13%
H. Kalven & H. Zeisel, The American
Jury (1966) ® ® © @ LJ ® Ld © NM LJ © i
R. Lempert, An Invitation to Law
and Social Science: Desert,
Disputes and Distribution (1986). iv
No. 84-6811
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1985
WARREN McCLESKEY,
Petitioner,
-
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification
Center.
On Writ of Certiorari To The United States
Court of Appeals for the Eleventh Circuit
MOTION FOR LEAVE TO
FILE BRIEF AMICI CURTAFE
Dr. Franklin M. Fisher, Dr. Richard
0. Lempert, Dr. Petar W. .Sperliich, Dr.
Marvin E. Wolfgang, Professor Hans Zeisel
and Prcfessor Franklin E. Zimring
respectfully move, pursuant to Rule 36.3 of
the Rules of the Court, for leave to file
i
the attached brief enias curiae in support
of the petitioner in this case. The
consent of counsel for petitioner has been
cbtained. The consent of counsel for
respondent was requested but refused,
necessitating this motion.
This case involves one of the most
carefully studied criminal justice
questions to come before the Court. At
issue is research by Professor David Baldus
and his colleagues on the influence of
racial factors in the capital sentencing
system of the State of Georgia. The
underlying constitutional and policy
questions are of great national concern,
and the value of social science evidence is
a central issue in the case.
Amici believe they could be of aid to
the Court in the evaluation of: (i) the
significance of the racial disparities
reported in the Baldus studies and (ii) the
validity of these studies. The competence
ii
of amici to address these issues stems from
their distinguished professicnal work in
the areas of econometrics, statistics,
research methodology and criminal justice
issues.
Dr. Franklin M. Fisher is Professor of
Economics at the Massachusetts Institute of
Technology. He is one of the nation's
foremost econometricians, having taught,
written and consulted on a wide range of
econometric and legal issues for over three
decades. His article Multiple Regression
in Tegal Proceedings, 30 Colum. L. Rev. 702
(1980), has had a major influence on the
judicial use of statistical metheds. His
research on sentencing guidelines and on
the legal context of various economic
issues has provided major empirical
contributions to the fields of law and
economics. He has served as a member of
the National Academy of Sciences Panels on
Deterrence and Incapacitation and on
ii
Sentencing Research.
Dr. Richard 0. Lempert is Professor
of Law and Sociclogy at the University of
Michigan. He has studied and written
widely on a variety of legal and criminal
justice issues, including capital
punishment. He has served on the editorial
boards of several distinguished
professional journals including the Journal
of ILaw and Human Behavior and Evaluation
Review. Dr. Lempert has recently completed
a tarm as the editor of aw § Society
Review. His most recent book 1s An
Tnyitation +o law and Social Sciencs:
Desert, Disputes and Distribution (1986).
His work on jury size was cited by the
Court in Rallsw Vv. Gsoraiz, 438 U.S. 223
(1978).
Dr. Peter W. Sperlich is Professor of
Political Science at the University of
California at Berkeley. Dr. Sperlich has
taught, consulted and published widely on
many criminal justice issues, including the
role of juries and the use of scientific
evidence in legal settings. His writings
were cited prominently by the Court of
Appeals in McCleskey v. Kemp.
Dr. Marvin E. Wolfgang is Professor of
Criminology and Criminal Law and Director
of the Sellin Center for Studies in
Criminology and Criminal Law at the
University of Pennsylvania. During his
distinguished career, Dr. Wolfgang has made
numerous contributions to the development
of empirical research on legal issues. His
pioneering study con the influence of racial
factors in the imposition of death
sentences for rape was the object of
intensive legal examination during the
Maxwell v. Bishop litigation of the 1260s.
He is a former president of the American
Society of Criminology.
Professor Bans Zeisel is Emeritus
Frofagsor of lav and “Sociology and
Associate of the Center for Criminal
Justice Studies at the University of
Chicago. He is co-author of The American
Jury, widely recognized as one of the most
influential empirical studies of the legal
system ever published. Professor Zeisel is
a fellow of the American Statistical
Association and the American Academy of
Arts and Sciences. His empirical research
on the functioning of juries was relied
upon by this Court in Ballew Vv. Georgia,
supra.
Professor Franklin Be. Zimring is
Professor of Law and Director cf the Earl
Warren Institute at Boalt Hall, University
of California at Berkeley. He has written
extensively on criminal justice issues,
including juvenile crime and sentencing,
the deterrent value of punishment, and the
control of firsarms., Professor Zimring
served as Director of Research for the Task
Force on Firearms of the Naticnal
vi
Commission on the Causes and Prevention of
Violence, and has also served as consultant
to many private and public srgantzaticns.
In view of their long-standing
professional interest in the legal use of
social scientific evidence and their
extraordinary professional competence to
address those issues, amici curiae believe
that their views might be of assistance to
the Court. They therefore urge the Court
to grant their motion and permit the
submission of this brief amici curiae.
Dated: New York, New York
August 23, 1988
Respectfully submitted,
MICHAEL O. FINKELSTEIN
MARTIN F. RICHMAN *
Barrett Smith Schapiro
Simon & Armstrong
26 Broadway
New York, N.Y. 10004
(212) 422-8180
ATTORNEYS FOR AMICI CURIAE
BY:
MARTIN F. RICHMAN
*Counsel of Record
vii
No. 84-6811
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1985
WARREN McCLESKEY,
Petitioner,
-—.
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification
Canter.
On Writ of Certiorari To The United States
Court of Appeals for the Eleventh Circuit
BRIEF AMICI CURIAE OF DR. FRANKLIN
M. FISBEER, DR. RICHARD O. LEMPERT,
DR. PETER W. SPERLICH, DR. MARVIN
E. WOLFGANG, PROFESSOR HANS ZEISEL
& PROFESSOR FRANKLIN E. ZIMRING
SUMMARY OF ARGUMENT
The factual questions presented by
this case are among those that can be
tested by established social science
3
methods. At issue waz a series of decisions
and actions carried out in a single state
over a limited period of time. The sources
of information about those decisions were,
in this case, official state files
containing unusually rich and detailed
data. Statistical techniques for the
analysis of such data are well-developed
and reliable. There are established
criteria in the social science professions
for evaluating the findings of such
studies. This is, in sum, the kind of
research that social scientists know how to
do, and to evaluate with considerable
confidence.
The studies at issue in this case were
conducted in the State of Georgia by
Professors David Baldus, George Wocdworth
and Charles Pulaski. The results of the
Baldus studies are that Georgia defendants
whose victims are white, especially black
defendants, face death=-sentencing rates
many times higher than those whose victims
are black. This result is consistent with
a solid body of previous research in this
area. A natural question provoked by such
findings 1s whether other legitimate
sentencing factors might explain what
initially appear to be racial differences.
Yet these striking results did not
disappear after searching statistical
analysis by Baldus and his colleagues.
Neither chance nor any legitimate
sentencing considerations can explain the
powerful influence of these racial factors.
The Baldus studies were conducted in
careful compliance with accepted research
techniques. Their design and execution
wera meticulous and their . analytical
methods were appropriate. They are among
the best empirical studies on criminal
sentencing ever conducted, and their
results are entitled to a high degree of
confidence.
The lower courts nevertheless
displayed a profound and unwarranted
mistrust of the Baldus studies and a
misunderstanding of their results. The
District Court judged +the Baldus data
sources by unrealistic and unjustified
standards. bh quarreled with data
collecticn and coding methods that are
well-established and widely used. I
evinced a hostility towards methods of
statistical analysis =-- especially multiple
regression analysis =-- that is utterly
unwarranted, expressing a skepticism toward
techniques of statistical modeling,
especially analyses conducted with
parsimonious models, that is uninformed and
indefensible. Finally, it faulted Baldus's
results on a variety of minor statistical
grounds that reflect, at best, a partial
understanding of the deficiencies that can
afflict such research and a failure +o
appreciate the negligible extent to which
those problems were likely to affect the
essential findings reported by Baldus. As
a result of this series of errors, the
District Court inappropriately devalued a
first-rate body of research that sheds
significant light on the issues before it.
The Court oF Appeals, by contrast,
purperted to accept the validity of the
Baldus studies and to address the legal
implications of their results. Yet that
court seriously underestimated the
magnitude of the racial effects Baldus
reported =-- misconceiving both the actual
size of the racial disparities and their
relative significance as a force in Georgia
sentencing decisions. Further, even while
purportedly accepting the Baldus research,
the Court of Appeals demanded a level of
certainty that exceeds the powers of any
statistical research to achieve == a level
Of cartainty not approached. in nost
employment discrimination «cases or in
business litigation where such statistical
evidence is routinely received and often
dispositive.
The Baldus results demonstrate that
racial factors =-- race of the defendant in
white=-victim cases and race of the victim
throughout =-- played a real, substantial
and persistent role in death-sentencing
decisions in the State of Georgia during
the period studied. The disparities are so
large that they lead to the conclusion that
in black-defendant, white=victim cases--
of which petitioner McCleskey's is one--
it is more probable than not that the race
of the victim was a determining factor, in
the sense that the defendant would not have
received a death sentence if his victim had
not been white. The State's evidence did
not contradict these strong findings, which
replicate less detailed, though similar
conclusions reached ix othar studies.
Whatever the legal implications of these
facts, they should be accepted as proven to
scientific satisfaction.
ARGUMENT
XL
THE BALDUS STUDIES DEMONSTRATE
THAT IN THE STATE OF GEORGIA,
THE RACE OF THE HOMICIDE VICTIM
HAS BEEN AN IMPLICIT AGGRAVATING
CIRCUMSTANCE WITH A SUBSTANTIAL
IMPACT ON THE RATE OF CAPITAL
SENTENCING :
The unadjusted results reported
by Professor Baldus for the sample of
Georgia cases studied, grouped in
combinations by race-of-defendant and race-
of-victim, are as follows:
Table I
Death Sentences Among Defendants
Convicted of Murder and Voluntary
Manslaughter (DB63)
Number
Race of Receiving Percentages
Defendant / The Death Receiving The
Yickim Penalty Death Penalty
black/white 80 of 223 i
white/white 58 of 748 8
black/black 18 of 1443 1
white/black >of 60 3
%* %* %* %* %* %* Ye %* %*
lRounded to the nearest percentage
point.
Table I (continued)
Number
Receiving Percentage?
Totals by The Death Receiving The
Victim Penalty Death Penalty
white victim 108 of 981 I:
black victim 20 of 1503 1
In particular, as the table shows,
blacks who killed whites were sentenced to
death at nearly 22 times the rate of blacks
who killed blacks, and more than 7 times
the rate of whites who killed blacks. The
capital sentencing rate for all white-
victim cases was almost 11 times the rate
for all black-victim cases. Unless there
is an extracrdinarily perfect confounding
with titer factors correlated with race,
these very large racial disparities
2Rounded to the nearest percentage
Doink,
indicate that race is an: implicit
aggravating factor in the capital
sentencing decisicn.
To test whether the disparities in
capital sentencing rates were due to
factors confounded with race, Professor
Baldus firs made cross-tabulations,
controlling for the most important
sentencing factors that might have been
confounders. In these tests, the racial
disparities did not disappear. For example,
by analyzing all cases that were death-
eligible under statutory aggravating factor
(b).(2)3 == murder by a defendant in the
course of a contempcraneous felony, a
category which included petitioner
McCleskey's case =-—- Professor Baldus found
“hat 38 percent (60 oul of 180) of the
blacks who murdered whites received the
death penalty, while only 14 percent (15
out of 104) of the blacks who murdered
3Former Ga. Code Ann. §27-2534.1(b) (2)
10
blacks received this penalty. (See DB 87)
Thus, blacks who murdered whites were
sentenced to death at more than 2.5 times
the rate of black-on-black cases in this
category.
When Professor Baldus separated out
only those, like McCleskey, whose
contemporary felony was armed robbery; the
disparities were even more pronounced: 34
percent (42/123) of blacks who killed
whites received a death sentence, while
only 5 percent (3/57) of blacks who killed
blacks did. (See DB 87). These cross-
tabulations tell the basic story of the
magnitudes of racial effects. Felony
murders with white victims produce death
sentences in Georgia more than twice as
often as felony murders with black victims.
Thus severe racial disparities in capital
sentencing rates remain after controlling
for the occurrence of contemporaneous
felonies.
%3
Other cross=-tabular data from these
studies not only establish the fact of
racial discrimination but tell us where it
occurs. They reveal noticeably different
treatment of cases, by race, at various
decision points from indictment forward.
The following table, for example,
addressing only Georgia cases in which a
murder conviction had been cbtained,
reveals, by racial category, the rate at
which Georgia prosecutors chose to advance
cases to a capital sentencing hearing--
where a death sentence was a possible
outcome =-- rather than permit an automatic
life sentence.
Table 2
PENALTY TRIALS AMONG DEFENDANTS
CONVICTED OF MURDER (DBS4)
Number Percentage
Advancing Advancing to
Defendant / to Penalty Penalty
Victim Trials Trials
black/white 87 of 124 «20
white/white 99 of 312 +32
black/black 38 of 280 «33
white/black 4:0f 21 eh
12
Thus even among convicted black defendants,
where strength of the evidence factors
presumably no longer played a major role,
Georgia prosecutors advanced black
defendants to a penalty trial, if their
victims were white, at nearly five times
the rate they advanced black defendants
whose victims were black (.70 vs. 15), and
over three times the rate of whites who
Rilled blacks (.70 vs. .19).
Because there were insufficient
numbers of cases, Professor Baldus could
not use cross-tabulations to control
simultaneously for combinations of possible
confounding factors. This is a common
problem in social science research, and to
deal with it, he resorted to multiple
regression analysis, using both weighted
least squares and logistic regression
models. These are standard statistical
rg
methods for this type of analysis®*. Both
forms of analysis showed substantial racial
disparities in capital sentencing rates.
It is important to understand multiple
regression analysis accurately as one tool
for interpreting the data in the Baldus
studies. The regression exercise was
intended principally to check the basic
finding of the cross—-tabular approach
against the possibility that multiple
confounders which correlated with race
might explain the racial disparities even
if the principal ones taken separately did
not 4c so. Multiple regression analysis
4Multiple regression analysis is the
method of choice when multiple causal
factors may be at work and controlled
experiments to isolate their separate
impact are not possible cr would not be
credible. They have become an essential
part of econometrics social science
research, and more recently have been
employed in anti-discrimination class
actions, antitrust damage computations, and
a variety of other legal contexts. The use
cof multiple regression was expressly
apprcved by this Court in Bazemore Vv.
Friday, 'g.s. - (1938).
14
sernithas Baldus to take over 230 factors
simultaneously into account to see whether
any combination of them might explain the
racial disparities.® Among the regression
results reported are many highly
statistically significant regression
coefficients for the race of the victim and
the race of the defendant, employing
scab ightcal models of varying sizes. Based
on those results, he found that white-
victim cases remained more than twice as
likely as black=-victim cases to produce
death sentences after controlling for all
other factors. (See DB 83). These results
demonstrate that racial factors have an
independent influence on death-sentencing
rates after the effects. Of. all other
legitimate sentencing variables included in
Sprofessor Baldus testified that, in
his judgment, a 39-variable model best
captured the essence of the Georgia system
(Fed. Tr. 808); he employed larger models
as part of a comprehensive effort to see
whether any other combinations of variables
might eliminate the racial effects.
35
the models have been taken into account.
In its discussion of the magnitude of
the average race-of-victim effect in
Georgia's capital sentencing system, the
Court of Appeals focused almost exclusively
on what it stvied a "63%" disparity. This
figure was presumably derived from the .06
least squares regression coefficient
estimated for the race-of-victim variable
in the 230-variable large scale multiple
regression model in the Baldus studies.
(DB 83). The court, confusing percent and
percentage point, interpreted this "6%"
average disparity to mean that "a white
victim crime is 6% more likely to result in
the [death] sentence than a comparable
black victim crime." McCleskev v. Kemp, 753
F.2d 877, 896 (llth Cir. 1985) (en banc).
The assumption of the statement is that the
death sentencing rate in vhika~yickin cases
would on average be 6% higher than the rate
for similarly situated black-victim cases.
16
Thus, for example, if the death sentencing
rate in a given class of black-victim cases
were 10%, the white victim rate would be 6%
higher or 10.6%.
Such an interpretation is incorrect
and highly misleading. The .06 race of
victim regression coefficient indicates
that the average death-sentencing rate in
the system is 6 percentage points higher in
white-victim cases than it is in similarly
situated black-victim cases. The
percentage increase in the rate is much
greater than 6 percent at all levels of
aggravation where the death penalty is
given, because the base rates are low.
Having misunderstood the basic results
of the Baldus studies, the lower courts,
not surprisingly, also misunderstood the
implications of those results for
Maclashey's case. To understand these
implications, one has to focus on the
disparity in sentencing rates at
17
OSs 3 an
aggravation levels comparable to those in
McCleskey's case. One can do this by
looking at disparities in capital
sentencing rates at the average aggravation
levels for all white-victim cases (of which
McCleskey's is one) or, more precisely, at
the cases in the mid-range of aggravation
(of which McCleskey's is also one). We
examine both below.
* “The overall death-sentence rate in
white=-victim cases is 11%. Since the
weighted least squares regressicn model
cited by the Court of Acpeals tells us that
the overall rate in comparably aggravated
nlackeviatin cases 1s six percentage points
less, the rate in such cases is estimated
at five percent. Thus, at the average level
of aggravating circumstances represented by
the white-victim cases, the rate of capital
sentencing in a white-victim case is 120%
greater than the rate in a black-victim
case. Or to state the results
18
differently: in six out of every 11 death
penalty cases in which the victim was
white, race=-ocf-victim was a determining
aggravating factor in the sense that the
defendants would not have received the
death penalty if the victims had been
black.
The Court of Appeals properly points
out that the race-of-victim effect is
concentrated at the mid-range, where it is
approximately 20 percentage points. In
that range, the average death sentencing
rakes (calculatad from "DPB 30: "col. Dy,
levels 3-7) 1s 14.4% for black=-victim cases
and 34.4% for white-victim cases, an
increase of 139%. This means that cut of
every 34 death-penalty cases in the mid-
range in which the victims were white, 20
defendants would not have received the
death penalty if their victims had been
black.
McCleskey's case is, a white=-victim
iS
death penalty case that is in the mid-
range in terms of aggravating facts. Since
the statistical results show that in a
majority of such cases the death penalty
would not have been imposed if the victim
were black, one must conclude that in
McCleskey's case (as in others of the same
class) it is more likely than not that the
victim's race was a decisive aggravating
factor in the imposition of the death
penalty. Thus it is more likely than not
that McCleskey would not have received a
death sentence if his victim had been
black.
rr
THE BALDUS STUDIES EMPLOYED EXCELLENT,
PROFESSIONAL METHODS OF EMPIRICAL
RESEARCH AND PRODUCED STRONG, RELIABLE
FINDINGS ON THE ROLE OF RACE IN
GEORGIA'S CAPITAL SENTENCING SYSTEM
The District Court, as well as the
Court of Appeals, appear to have rejected
the Baldus studies in large measure because
of their misapprehensions about the quality
20
of the data gathered or the statistical
methods employed to analyze that data. In
our cpialon: these reservations are
unwarranted: the design of the research
followed accepted scientific practice, the
work was carried out in a careful and
thorough manner, the analytic methods were
appropriate -— and the results,
consequently, are reliable.
The District Court's opinion, in
particular, raised a series of objections
to empirical methods and procedures, almost
none of which is well-founded. It asserts
that Baldus's data base was "substantially
flaw(ed]," McCleskev v. Zant, 580 F. Supp.
338, 360 (N.D. Ga. 1984) (emphasis
omitted), because it "could not capture
every nuance of every case." Id. at 356.
None of Baldus's many models, even those
with Svar 230 variables, was deemed
sufficiently inclusive in the District
Court's eyes, since "the final data base
21
was far from perfect." Id.
These objections are fundamentally
misplaced. As a scientific matter, the
likelihced that any omitted variable could
significantly affect Baldus's robust
findings == especially when so many
legitimate variable were taken into account
-- is negligible.® For any unaccounted-for
variable actually to make a difference in
the Baldus findings, it would have to be
substantially correlated with the race of
the victim and yet substantially
uncorrelated with the 230 variables defined
by Professor Baldus that take into account
every known, conceptually impertant legal
and extra-legal factor that might affect
capital sentencing. It is extremely
unlikely that any factor that powerful has
been overlocked in these studies. The
6We use the term "robust" to indicate
that Professor Baldus's findings do not
appear to be significantly affected by
variations in the specifications of the
statistical mecdels he used.
22
examples given by the lower court--
including "looks, age, perscnality," see
753 F.2d at 899 =-- either were in fact
included in Baldus' analyses or appear
unlikely to meet those qualifications. By
insisting on a standard of "absolute
knowledge" about every single case, the
District Court implicitly rejected the
value of all applied statistical analysis.
Yet, as this Court has correctly pointed
out in Bazemcre, a complainant need only
include the major variables in his
analysis.
The District Court also expressed
general skepticism toward a range of well-
established social scientific methods
employed by Baldus, including multiple
regression analysis, which it found "ill
suited to provide the cours with
circumstantial evidence of the presence of
discrimination." Id. at 372 (emphasis
omitted). Indeed the only statistical
23
‘method that the District Court did seem to
approve is the simple cross-tabular
approach, id. at 354, even though the court
acknowledged that the inherent nature of
the problem under study here makes it
"impossible to get any - statistically
significant results in comparing exact
cases using a cross tabulation method." Id.
(emphasis omitted). This preference for
cross-tabular methods lacks any scientific
foundatien. Baldus's use of multiple
regression analysis is clearly valid and
appropriate to his data. In any event,
Baldus and his colleagues did use cross-
tabular analysis extensively, and their
findings using this method, as we have
seen, are fully consistent with the
regression results.
Finally, in evaluating Baldus's
results, the District Court seized upon a
somewhat confused welter of statistical
issues, including Baldus's conventions for
24
coding "unknown" data, id. at 337-59, the
possible mlticollinearity of his
variables, id. at 363-64, and the reported
R2 of his model, id. at 1381, 381, as
reasons for its ultimate conclusion that
Baldus's results could not be accepted.
However, Baldus and his colleagues
satisfactorily addressed each of these
concerns and demonstrated that the racial
results were not adversely affected by
them. Baldus not only employed the correct
method of treating "unknowns"; he also
conducted alternative analyses to
demonstrate that racial influences
persisted irrespective of the method of
treatment adopted. lticollinearity
undoubtedly did affect some of the larger
models employed by Baldus, but the District
Court . failed to realize that
multicollinearity would not change the
estimate of the reported racial results,
but would only enlarge the standard error
25
of that estimate. The standard errors were
calculated in the usual way in the Baldus
studies (which reflects the effects of
multicollinearity) and as thus calculated,
they did not deprive Baldus's results of
statistical significance. Finally, the
court's concern with the reported R2 of
Baldus's models is unfounded. Apart from
the irrelevance of the R? measure for
logistic models, an R2 of .40 or higher is
quite acceptable for the weighted least-
squares models.
In sum, since the District Court's
opinion was flawed by basic statistical
errors and misunderstandings, its
evaluation of the validity of the Baldus
studies is simply cff-target.
J se *
The Court of Appeals took a different
approach to Baldus's research: it
announced that it would "assum([e] [the
study's] validity and that it proves what
26
it claims to prove," McCleskey v. Kemp,
733 P.2&4 at 386, and would basa its
judgment solely on the legal consequences
flowing from that research. Yet the
skepticism that pervaded the District
Court's analysis continued to dominate the
treatment of Baldus's research by the Court
of Appeals. After first knitting together
citations from several scholarly articles
that caution courts against an unreflective
use of social scientific evidence, id. at
887-90, the cours announced "that
generalized statistical studies are of
little use in deciding whether a particular
defendant has been unconstituticnally
-sentenced to death . . . [and] at most are
probative of how much disparity is
prasant.” Id. at 893. That observation
misses the point: Statistical evidence can
determine with great reliability whether
racial factors are playing a recle in the
sentencing system as a whole and whether
27
the disparities are so great as to tip the
balance of probability that they cperated
in any particular case. Baldus's studies
provide just such evidence.
When the Court turns to the Baldus
studies, it relies primarily upon one
summary figure drawn from the entire body
of results -- a reported .06 disparity by
race of victim in overall death-
sentencing rates. As we showed above, this
was but one of a number of important,
meaningful results indicating a consistent
racial presence in the state of Georgia's
capital sentencing system. More important,
as also demonstrated earlier, the Court of
Appeals seemed fundamentally to have
misunderstood the magnitude and
significance even of this single result
upcn which it focused: it took a pound for
a penny.
Although Baldus and his colleagues
have been consistently conservative in
28
evaluating and reporting their findings,
the adjusted influence cf racial factors on
Georgia's capital sentencing system remains
both clear and sicnificant. Race,
especially the race of the victim, plays a
large and recognizable part in determining
who among Georgia defendants convicted of
murder will be sentenced to life and who
among them will be sentenced to death.
CONCLUSION
The contributions of social scientific
evidence to the resolution of legal issues
has increased significantly in recent
decades, as statistical methods have
improved and the confidence of the courts
has grown. This Court has led the lower
federal courts toward an appreciation of
the nature of statistical evidence, and has
developed legal principles == including
standards of proof for parties presenting
29
such evidence =-- that reflect a clear
understanding of the powerful utility of
valid social scientific evidence. See,
S.C, Bazemore Vv. Fridav, 7.35. A
L.E&.2d , (1586) ; Hazelwood School
Digtrict vv. Duiiasd geabkas. 2433 UT.8. 299
(1977); Teamsters v. United States, 431
U.S. 324 (1977); see also Segar v. Smith,
738 F.2d 1249 (D.C. Cir. 1984); Yuvanich v.
Republic National Bank, S505 F. Supp. 244
(N.D. Tex. 1980), vacated on other grounds,
723 P.24 1198 (Bh Cir, 1984).
The Court of Appeals disregarded
these basic standards of procf fashioned by
the: Court, Its opinion in McCleskev
insists upon a level of methodological
purity in data quality, medel design, and
analysis that cannot be achieved and is
unnecessary. If such standards were to
prevail, the effect would be to choke off
the use of scientific methods of social
research in law. Perceptions of the
30
judicial system and society would still
inform judicial decisions, but they would
be controlled by anecdote and hunch.
Surely the courts can and should do better
than that, particularly in cases, such as
this one, that involve issues of deep
social concern.
The cross-tabular and regression:
analyses of Professor Baldus and his
colleagues were the correct analytical
tools for the research they undertook.
Their studies were undertaken with great
care. Their findings replicate the work of
earlier, less comprehensive studies. The
magnitude of their findings is striking.
This body of research renders it far more
likely than not that racial factors have
played a significant role in Georgia's
capital sentencing system in the post-
Furman era.
Dated: New York, New York
August 29, 1986
Respectfully submitted,
3% !
MICHAEL O. FINKELSTEIN
MARTIN F. RICHMAN *
Barrett Smith Schapiro
Simon & Armstrong
26 Broadway
New York, N.Y. 10004
(212) 422-8180
ATTORNEYS FOR AMICI CURIAE
BY:
MARTIN F. RICHMAN
*#*Counsel of Record
32
CERTIFICATE OF SERVICE
I hereby certify that I am a member of
the bar of this Court, and that I served
the annexed Motion for Leave to File Brief
Amici Curiae and Brief Amici Curiae on the
parties by placing copies in the United
States mail, first class mail, postage
prepaid, addressed as follows:
John Charles Boger, Esq.
NAACP Legal Defense fund, Inc.
99 Hudson Street
New York, New York 10013
Mary Beth Westmoreland, Esq.
132 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Done this day of August, 1986.
MARTIN F. RICHMAN
332