Amicus Briefs in Support of Respondent

    N 

  
 



No. 84-6811 

  
  

IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1986 

WARREN MCCLESKEY, 
Petitioner, 

V. 

RALPH M. KEMP, Superintendent, Georgia Diagnostic & 
Classification Center, 

Respondent. 

On Writ of Certiorari to the United States Court of Appeals 

for the Eleventh Circuit 

BRIEF AMICUS CURIAE 
OF THE WASHINGTON LEGAL FOUNDATION 

~~ AND THE ALLIED EDUCATIONAL FOUNDATION 
IN SUPPORT OF RESPONDENT 

DANIEL J. POPEO 

GEORGE C. SMITH * 

WASHINGTON LEGAL FOUNDATION 

1705 N Street, N.W. 

Washington, D.C. 20036 
(202) 857-0240 

Attorneys for Amici Curiae 

Washington Legal Foundation 

and 

Allied Educational Foundation 

* Counsel of Record 

Dated: September 19, 1986 

  

  

WILSON - EPES PRINTING CoO., INC. - 789-0096 - WASHINGTON, D.C. 20001  





QUESTIONS PRESENTED 

1. Whether a state’s system for imposing capital pun- 
ishment which has been otherwise upheld as constitu- 
tional in all respects may be held unconstitutional merely 
because the collective sentencing results it has produced 
during a given period of years do not conform to sub- 

jective notions of racial proportionality in sentencing. 

2. Whether, in the absence of any evidence of inten- 
tional race discrimination causing the petitioner’s in- 
dividual death sentence, that sentence may be set aside 
as unconstitutional merely because the collective sen- 
tencing results of the past do not conform to subjective 
notions of racial proportionality in sentencing. 

3. Whether a claim that the death penalty has been 
unconstitutionally imposed due to race discrimination 
can succeed without the necessity of proving purposeful 
or intentional discrimination by state actors merely by 
asserting the claim under the Eighth Amendment instead 
of under the equal protection clause of the Fourteenth 
Amendment. 

4. Whether a claim that the death penalty has been 
unconstitutionally imposed due to race discrimination 
can be based upon evidence of disparities in sentencing 
associated solely with the race of the victim, as dis- 
tinguished from the race of the defendant. 

5. Whether the district court’s factual finding that 
the studies relied upon by petitioner were too flawed and 
untrustworthy to constitute cognizable evidence of ac- 
tionable sentencing discrimination was clearly erroneous. 

(1)  





TABLE OF CONTENTS 

QUESTIONS PRESENTED ............ cco cisiraniisnssns son 

TABLE OF AUTHORITIES... dill... 

INTERESTS OF AMICUS CURIAE ......................... 

STATEMENT OF THE CASE... 

SUMMARY OF ARGUMENT 

ARGUMENT 

1 

11 

MERE FAILURE TO MAINTAIN AN “AC- 
CEPTABLE” DEGREE OF RACIAL PROPOR- 
TIONALITY IN CAPITAL SENTENCING 
PROVIDES NO GROUNDS FOR STRIKING 
AN OTHERWISE VALID CAPITAL PUNISH- 
MENT SYSTEM coin iicimn iim. 

A. A Death Sentence’s Constitutionality De- 

pends Upon its Conformity with Governing 

Legal and Procedural Standards, Not upon 

its Conformity to Statistical Notions of 

Racial Proportionality 

B. The Statistical Disparities Alleged Cannot 

Prove Discriminatory Intent, Which has 

been Consistently Required by the Courts as 

a Necessary Element of a Race-based Attack 

On a. Death Sentence... c..oc..cnviii ce onions 

C. The Standard of Statistical Proportionality 

Advocated Here is Unreasonable, Unwork- 

able, and Unjust when Applied to the Out- 

come of the Criminal Sentencing Process ..._. 

EVEN IF A DISPARATE IMPACT STAND- 
ARD WERE APPROPRIATE IN THE CRIM- 
INAL SENTENCING CONTEXT, PETI- 
TIONER FAILS TO MAKE A PLAUSIBLE 
CASE ON THAT BASIS ASWEIL............... 

(iii) 

13 

 



  

iv 

TABLE OF CONTENTS—Continued 

. Petitioner’s Basic Contention is Based on a 

Myth oii Td hl aS 

. The Theory of Victim-based Discrimination 

is Legally and Logically Invalid .._........_......... 

. The Findings of the District Court on the 

Study’s Invalidity Should be Affirmed........... 

. The Myriad Individualized Factors and Com- 

binations of Factors Which Influence A Death 

Sentence are not Susceptible to Quantification 

or Precise Comparative Analysis. ___............__. 

CONCIUSION ..... or JE LT Es 

Page 

17 

19 

21 

22 

25 

   



Vv 

TABLE OF AUTHORITIES 

Cases Page 

Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 

1988). Cui nin BORER ARS Sahel 9,19 

AFSCME v. State of Washington, 578 F. Supp. 

846 (D. Wash. 1984), rev’d, 770 F.2d 1401 (9th 

Clr. 1085) cna nim alall cranes) oh 17 

Andrews v. Shulsen, 600 F. Supp. 408 (D. Utah 

1983), appeal pending, No. 84-2781 (10th Cir. 

1986) .....c.... esi Da 9, 19, 24-25 
Britton v. Rogers, 631 F.2d 571 (8th Cir. 1980), 

cert. devied, 451 U.S. 939 (1981) ..................... 10, 16, 20 
Brogdon v. Blackburn, 790 F.2d 1164 (5th Cir. 

YOBB) os iii i ne aes 9 
Caldwell v. Mississippi, 105 S.Ct. 2633 (1985) 13 

City of Cleburne v. Cleburne Living Center, 105 

SOL 8249 (1988)... ..... 16 
Furman v. Georiga, 408 U.S. 238 (1972) ................ 5-8 

Godfrey v. Georgia, 446 U.S. 420 (1980) ................ 5 

Gregg v. Georgiv, 428 U.S. 153 (1976) ............. .... 5 

McCleskey v. Zant, 580 F. Supp. 338 (1984) passim 
Prejean v. Maggio, 765 F.2d 482 (5th Cir. 1985) .. 9 

Pulley v. Harris, 104 S.Ct. 871 (1984) ............... 8-9, 12-13 

Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985) ...._.. 59 
Show v. Martin, 733 F.2d 804 (4th Cir.), cert. de- 

wed, SSLLEA. 2d 1530 (1934)... .. 9 
Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 

1978), cert. denied, 440 U.S. 976 (1979)............. 7.9, 20 
Stephens v. Kemp, 104 S.Ct. 562 (1983) ................ 7 

United States v. General Dynamics, 415 U.S. 486 

ET ns Re a cbs SE LR a Ee 22 
Washington v. Davis, 426 U.S. 229 (1976)... 10-11 

Whitley v. Albers, 106 S.Ct. 1078 (1986) 12 

Woodson v. North Carolina, 428 U.S. 280 (1976). 15 

Zant v. Stephens, 462 U.S. 862 (1983) .................... 5,13 

Other Authorities 

Ped R. Civ. P.82(ny...... oo. 0 22 
R. Berger, DEATH PENALTIES (Harv. Press 1982) .. 10  



  

vi 

TABLE OF AUTHORITIES—Continued 

Page 

Bureau of Justice Statistics Bulletin, Capital Pun- 

ishment 1984, NCJ-98399 (August 1985) ......_. 4, 18-20 

Note, Discrimination and Arbitrariness in Capital 

Punishment: An Analysis of Post-Furman Mur- 

der Cases in Dade County, Florida, 1973-76, 33 

STANPORD:L.. BEV. 75 (1980) o.oo Las 18-19 

 



IN THE 

Supreme moet of the United States 
OCTOBER TERM, 1986 

No. 84-6811 

WARREN MCCLESKEY, 
Petitioner, 

V. 

RALPH M. KEMP, Superintendent, Georgia Diagnostic & 
Classification Center, 

Respondent. 

On Writ of Certiorari to the United States Court of Appeals 

for the Eleventh Circuit 

BRIEF AMICUS CURIAE 
OF THE WASHINGTON LEGAL FOUNDATION 

AND THE ALLIED EDUCATIONAL FOUNDATION 
IN SUPPORT OF RESPONDENT 

INTERESTS OF AMICI CURIAE 

The Washington Legal Foundation (“WLF”) is a non- 
profit public interest law and policy center based in 
Washington, D.C., with over 80,000 members nation- 

wide. WLF engages in litigation, administrative proec- 
eedings, and policy advocacy in support of the legal and 
constitutional values and principles on which America 
was founded. 

WLEF devotes substantial effort to asserting the rights 
of victims of crime and supporting effective law en- 
forcement measures. WLF has also been a leading 
voice in support of the legitimacy of the death penalty  



  

2 

from both a constitutional and policy standpoint. The 
Foundation’s experience and expertise on this issue are 
reflected in the amicus curiae briefs it has filed in many 
of the leading Supreme Court decisions on capital pun- 
ishment. E.g., Zant v. Stephens, 462 U.S. 862 (1983); 
Strickland v. Washington, 104 S. Ct. 2052 (1984); Ed- 
dings v. Oklahoma, 455 U.S. 104 (1982). WLF attorneys 
have also been repeatedly invited to testify before the 
U.S. Congress on capital punishment issues. 

WLF believes the instant case is of critical importance 
for its potential impact on not only capital punishment 
law but on many broader areas where claims of racially 
disparate impact may be raised. If petitioner prevails 
here, the jurisprudence of racial and ethnic proportion- 
ality will be carried to unprecedented extremes in the 
governance of this nation. The notion that the duly con- 
victed murderer of a policeman could escape an other- 
wise valid death sentence by invoking the race of his 
victim as a defense is repugnant to any decent sense 
of law and justice. 

The Allied Education Foundational (“AEF”), estab- 

lished in 1964, is a non-profit charitable and educational 
foundation based in Englewood, New Jersey, and devoted 
to the pursuit of knowledge, education, and the broad 
public interest. 

As part of its education and public interest efforts, 
AEF also supports the publication of books and studies 
on issues of law and law enforcement. Recently, for ex- 
ample, AEF joined with WLF in publishing a scholarly 
legal study on the death penalty, Capital Punishment 
1986: Last Lines of Defense. A chapter of that study 
directly challenges the theory of discrimination in capital 
sentencing reflected in petitioner’s argument in this case. 
Because AEF believes that petitioner’s argument here is 
not only profoundly erroneous as a matter of law, but 
profoundly misleading in its portrayal of the American 

   



3 

criminal justice system, AEF’s commitment to the spread 
of knowledge and to the rule of law have motivated it to 
join WLF in the following brief. 

STATEMENT OF THE CASE 

In the interests of judicial economy, amicus adopts and 
incorporates by reference the statement of the case set 
forth in the Brief of the Respondent. 

SUMMARY OF ARGUMENT 

1. Georgia’s statutory scheme for imposing the death 
penalty has been repeatedly upheld as constitutional un- 
der the exacting standards imposed by this Court. That 
indisputably constitutional system was fairly applied in 
petitioner’s case, and there was no evidence that inten- 
tional race discrimination caused or influenced his death 
sentence. The mere fact that petitioner submits a study 
purporting to show that the collective sentencing out- 
comes of other Georgia capital cases fail to conform to 
subjective notions of racial proportionality provides no 
valid basis for questioning petitioner’s sentence under 
these circumstances. Allowing death sentences to be re- 
versed solely on the basis of disparate impact data, and 
without proof of actual discriminatory motive, would be 
unjust, unworkable, and a source of disastrous upheaval 
for the entire criminal sentencing process. 

2. Even if an authentic and substantial race-based 
disparity in sentencing could be viewed as a valid basis 
for invalidating a death sentence, petitioner could not 
prevail on the facts of this case. Official government 
statistics demonstrate that, if anything, the death sen- 
tence has been disproportionately imposed on white mur- 
der defendants. Petitioner’s attempt to evade that fact 

by shifting his claim to wictim-based racial disparities 
cannot salvage his case. This Court has not endorsed 
that oblique theory of discrimination, and there is no just 

   



  

4 

or principled basis for it to do so now. Finally, the Dis- 
trict Court’s findings that the sentencing studies relied 
on by petitioner were fatally flawed and invalid were not 
clearly erroneous. They should be affirmed by this Court. 

ARGUMENT 

Preliminary Statement 

This case addresses the extraordinary argument that 
a state’s otherwise valid system for imposing the death 
penalty should be declared unconstitutional solely because 
it fails to allocate death sentences in conformity with 
theoretical notions of racial proportionality. Neither the 
presence of meticulously fair sentencing standards nor 
the absence of any discriminatory intent is considered 
pertinent under this argument. All that counts is the 
racial breakdown of collective sentencing statistics. 

Moreover, the petitioner rests his claim on the curious 
premise that juries would discriminate primarily on the 
basis of the slain wvictim’s race, rather than that of the 

criminal defendant in the dock—despite the contradictory 

circumstance that the victim is perforce absent from the 
trial and the victim’s race is rarely a matter of relevant 
concern at trial. Petitioner’s reliance on this contrived 
theory of “victim-based” discrimination is at least under- 
standable, however, in light of the fact that the more 

plausible theory of direct discrimination against black de- 
fendants does not stand up. Official studies comparing the 
sentencing of white and black perpetrators now establish 
that it is actually white murderers who disproportion- 
ately receive the death penalty. See Bureau of Justice 
Statistics Bulletin, Capital Punishment 1984, pp. 7, 9, 
Tables 11, A-1, A-2 (August 1985). This inescapable 
fact refutes petitioner’s sweeping factual claim that the 
death penalty discriminates against minorities. His legal 
theory fares no better. 

   



  

5 

I. MERE FAILURE TO MAINTAIN AN “ACCEPT- 
ABLE” DEGREE OF RACIAL PROPORTIONAL- 
ITY IN CAPITAL SENTENCING PROVIDES NO 
GROUNDS FOR STRIKING AN OTHERWISE 
VALID CAPITAL PUNISHMENT SYSTEM 

A. A Death Sentence’s Constitutionality Depends Upon 

Its Conformity With Governing Legal And Proce- 

dural Standards, Not Upon Its Conformity To 

Statistical Notions of Racial Proportionality 

Petitioner, the duly-convicted murderer of a policeman 

in Fulton County, Georgia, was sentenced to death by a 
judge following the binding recommendation of a jury. 
He now claims that his death sentence should be set aside 
because he is black, the policeman he murdered was 
white, and a study he cites purports to show that death 
penalties are disproportionately imposed on killers of 

white people. 

The dispositive flaw in petitioner’s argument is that it 
utterly discounts the significance of the extensive legal 
safeguards incorporated in the Georgia death penalty 
scheme in conformity with post-Furman capital sen- 

tencing requirements. Georgia’s current death penalty 
statute and practice have been reviewed, refined, and ap- 

proved under this Court’s exacting constitutional seru- 
tiny. Gregg v. Georgia, 428 U. S. 153 (1976); Godfrey 
v. Georgia, 446 U.S. 420 (1980) ; Zant v. Stephens, 462 
U.S. 862 (1983). Those cases, together with numerous 
lower court decisions upholding Georgia death sentences 
against other forms of attack, e.g., Ross v. Kemp, 756 
F.2d 1483 (11th Cir. 1985), establish that the Georgia 
capital sentencing system has satisfactorily eliminated 
the kind of standardless, arbitrary sentencing discretion 
originally condemned in Furman v. Georgia, 408 U.S. 
238 (1972). It does so by, inter alia, enumerating objec- 
tive aggravating circumstances which genuinely narrow 
the class of persons eligible for the death penalty and 
by providing for “individualized determination and ap- 
pellate review at the selection stage.” Zant v. Stephens, 

 



6 

462 U.S. at 879-80. The Georgia system even exceeds 
constitutional requirements by providing for a form of 
‘proportionality review’ by the Georgia Supreme Court 
in each case. Id. at 880 n. 19. 

Georgia having satisfied this Court’s exacting standards 
of fairness and procedure in capital sentencing, petitioner 
now urges the Court to superimpose a novel and funda- 
mentally different requirement. He contends that the 
state must insure some acceptable (but unspecified) de- 
gree of racial proportionality in the allocation of the 
death sentence. Not only must the state ensure that 
minority murderers receive no more than their “propor- 
tional” share of death sentences, but it must also guar- 
antee that those murderers who choose to kill white vic- 
tims are not disproportionately sentenced to death. This 
approach would require generalized, class-based consider- 
ations to preempt the particulars of the individual crime 
in deciding whether the death penalty is justified. It is 
racial balancing run amuck. 

How the state is expected to achieve and maintain this 
state of fine-tuned racial equilibrium in sentencing is 
not explained or addressed in petitioner’s arguments— 
and for good reason. For to do so would only bring peti- 
tioner, full circle, to the very kind of standards which 
this Court has already established—and which the State 
of Georgia has already satisfied—as a remedy to the arbi- 
trary and standardless sentencing practices struck down 
in the Furman case. Racial discrimination is merely one 
manifestation of the arbitrary and irrational sentencing 
inequities which the post-Furman capital sentencing stat- 
utes were designed to minimize and contain. A capital 
sentencing system which has been carefully reviewed and 
approved by this Court on those terms is no less consti- 
tutional merely because the collective sentencing results it 
produces do not conform to notions of demographic parity. 

Thus, the sufficient answer to petitioner’s contentions 
was stated by the Fifth Circuit in the leading case of 

   



7 

Spinkellink v. Wainwright, 578 F.2d 582, 613 (5th Cir. 
1978), cert. denied, 440 U.S. 976 (1979) :1 

The allegation that Florida’s death penalty is being 
discriminatorily applied to defendants who murder 
whites is nothing more than an allegation that the 
death penalty is being imposed arbitrarily and ca- 
priciously, a contention we previously have consid- 
ered and rejected. 

* * * 

As we previously noted, this Court reads Furman, 
Gregg, Proffitt, Jurek, Woodson, and Roberts as 
holding that if a state follows a properly drawn 
statute in imposing the death penalty, then the arbi- 
trariness and capriciousness—and therefore the ra- 
cial discrimination—condemned in Furman have 
been conclusively removed. 

Petitioner’s contrary approach subordinates the signifi- 
cance of the actual procedures and practices followed in 
his case to the cumulative sentencing results in hundreds 
of remote cases tried years before, involving different 
crimes, different victims, different judges, and different 
juries. Even if validated post-Furman procedures were 
scrupulously adhered to throughout Ais case, and even if a 
perfectly unbiased judge and/or jury decided his sen- 
tence, the constitutionality of that sentence would be die- 
tated by the collective statistical profile of the unrelated 
cases of the past. This is not a rational basis for invali- 
dating a given murderer’s sentence. It is a statistical 
lottery. 

1 This very same point has been echoed in the opinions of mem- 

bers of this Court. E.g., Stephens v. Kemp, 104 S.Ct. 562, 564-65 

(1983) (Powell, J., dissenting), where Justice Powell, joined by 

three other justices, flating asserted, “It should be apparent from 

the decisions of this Court since Gregg was decided that claims 

based merely on general statistics are likely to have little or no 

merit under statutes such as that in Georgia.” [emphasis added]. 

This statement squarely applies to the instant case. 

 



  

8 

Petitioner’s arguments make a mockery of the very 
core of the post-Furman approach to capital punishment 
—1i.e., that the best means of achieving fairness and 
rationality in capital sentencing is by observing objective 
standards and procedures which limit and channel sen- 
tencing discretion without eliminating it altogether. In 
effect, petitioner contends that full and faithful compli- 
ance with such approved standards is futile if it does not 
produce (and maintain) results which conform to conclu- 

sory notions of racially “proportionate” sentencing. This 
“result-oriented” approach is alien to this Court’s post- 
Furman jurisprudence on capital punishment, and should 
be firmly rejected. 

The most significant shortcoming of the Baldus Study 
in this context is that it tells us nothing about the fair- 
ness and legal propriety of petitioner’s trial and sen- 
tencing. There is no evidence here showing that McCles- 
key’s conviction and sentencing were actually motivated 
by race discrimination— intentional or otherwise—or by 
any other impermissible considerations. The authors of 
the Baldus study themselves concede as much. 753 F.2d 
at 895. In fact, petitioner’s entire case was conducted in 
faithful conformity to the rigorous procedures required 
for all capital proceedings under federal constitutional 
law and the law of Georgia. 

To invalidate his sentence based upon flawed evidence 
of an unremarkable deviation from racial proportionality 
would be to subordinate settled standards of criminal 
procedure to the vagaries and manipulations of question- 
able social science theory. This Court should decline such 
a dubious invitation. 

In rejecting the closely-related argument in Pulley v. 
Harris that “proportionality review” of all death sen- 
tences is constitutionally required, this Court stressed 
that in light of the many other safeguards incorporated 
in the approved post-Furman death penalty statutes “pro- 

   



9 

portionality review would have been constitutionally 
superfluous.” 104 S.Ct. at 879 [emphasis added]. The 
race-based statistical analysis of past sentences in capital 
cases is but an improvised variant of proportionality re- 
view, and it is redundant and unnecessary for the same 
reasons stated in Pulley v. Harris. 

B. The Statistical Disparities Alleged Cannot Prove 

Discriminatory Intent, Which Has Been Consist- 

ently Required By the Courts As A Necessary 

Element Of A Race-Based Attack On A Death 

Sentence 

Petitioner’s arguments notwithstanding, the federal 
courts have consistently and properly required proof of 
discriminatory intent as a mandatory element of claims 
that the death penalty violates the Eighth and/or Four- 
teenth Amendments by some form of race discrimina- 
tion. The cases so holding are legion. E.g., Spinkellink 
v. Wainwright, supra, 578 F.2d. at 612-15; Adams wv. 
Wainwright, 709 F.2d. 1443, 1449-50 (11th Cir. 1983) ; 
Ross v. Kemp, 756 F.2d 1483, 1491 (11th Cir. 1985); 
Shaw v. Martin, 733 F.2d. 304, 311-14 (4th Cir. 1984), 
cert. denied, 83 L.Ed. 2d. 159 (1984) ; Brogdon v. Black- 

burn, 790 F.2d. 1164, 1170 (5th Cir. 1986) ; Prejean v. 
Maggio, 765 F.2d. 482, 486 (5th Cir. 1985) ; Andrews wv. 
Shulsen, 600 F.Supp. 408, 426 (D.Utah 1983), appeal 
pending, No. 84-2781 (10th Cir. 1986). 

Petitioner now asks this Court to hold that this im- 
posing array of federal precedents is wrong, and that 
discriminatory intent really need not be proven at all. 
(Pet.’s Br. pp. 98-104). Petitioner would effectively eli- 
minate the intent requirement by the simple expedient 
of recasting his equal protection/diserimination claim in 
the guise of an Eighth Amendment claim, and contend- 
ing that discriminatory intent is wholly irrelevant to a 
claim of cruel and unusual punishment. (Pet.’s Br. pp. 
97-103). 

 



  

10 

There are numerous dispositive flaws in this argument. 

Initially, as cogently expressed by the district court 
(McCleskey wv. Zant, supra, 580 F.Supp. at 346-47), 
the Eighth Amendment does not even validly apply to 
death penalty appeals based upon “race of the victim” 
disparate impact theory. Relatedly, the Eighth Circuit 
has held that perpetrators lack standing to assert a claim 
based on disparate sentencing impact in relation to the 
victim’s race. Britton v. Rogers, 631 F.2d 571, 577 n.3 
(8th Cir. 1980), cert. dented, 451 U.S. 939 (1981). See 

also Spinkellink, supra, 578 F.2d at 614 n.839 (“the focus 
of any inquiry into the application of the death penalty 
must necessarily be limited to the persons who receive 
it rather than their victims”). This Court should now 
hold that constitutional attacks on the death penalty 
based on claims of victim-related racial disparities in 
collective sentencing data may be maintained (if at all, 
see Point II.B, infra) only under the equal protection 
clause of the Fourteenth Amendment. Compare McCles- 
key v. Zant, supra, 580 F.Supp. at 347. Such claims are 

not remotely within the scope of the cruel-and-unusual 
punishment clause as contemplated and recorded by the 

Framers of the Bill of Rights. See R. Berger, DEATH 
PENALTIES, pp. 44-58 (Harv.U.Press 1982). That amend- 
ment bans only cruel and barbarous punishments, and 
does not purport to establish a standard of proportion- 
ality or parity for the allocation of sentences among the 
various classes of criminals. 

Further, acceptance of petitioner’s argument would 
effectively nullify the discriminatory intent element 
which is indisputably required to sustain a death penalty 
challenge on equal protection grounds. Washington wv. 
Davis, 426 U.S. 229 (1976). This requirement of pur- 
poseful discrimination normally requires direct proof of 
actual discriminatory motive, only in the very rare cir- 
cumstances where the disparate impact is so monolithic 
as to defy explanation on any plausible non-racial 

   



11 

grounds can the intent requirement be satisfied by “im- 
pact” statistics alone. Washington v. Davis, supra, 426 

U.S. at 242. Here, there are so many alternative plausi- 
ble explanations for the claimed racial disparities in 
death-sentencing >—e.g., the demonstrated fact that white- 
victim murders are a consistent “proxy” for high-aggra- 
vation felony murders (see Point II. A., infra) —that a 

purely statistical mode of proof is plainly foreclosed. 

Whatever the required mode of proof, the specific in- 
tent requirement for claims of racially discriminatory 
action by the state cannot be evaded by simply present- 
ing the claim in alternative legal garb. A claim of un- 
constitutional race discrimination is still just that, 

whether asserted under the Eighth or Fourteenth Amend- 
ment. The mandatory element of purposeful diserimina- 

tion is grounded on decades of mature and considered 
jurisprudence; it reflects the considered judgment of our 
law that seemingly “disproportionate” outcomes in terms 
of race or other characteristics are generally explainable 
by a host of legitimate factors other than actionable dis- 
crimination; and it is not to be dismissed by the kind of 
legal sleight-of-hand attempted by petitioner in this case. 

Petitioner also errs in contending that the element of 
intent is simply irrelevant to Eighth Amendment claims. 
Any shortage of caselaw explicitly stating a diserimina- 
tory intent requirement results from the simple fact that 
discrimination claims like petitioner’s are simply inap- 
posite to Eighth Amendment jurisprudence, the precise 
and proper concern of which is barbarous forms of 
punishment rather than a guarantee of racial equilibrium 
in sentencing. To the extent that the Eighth Amendment 

2 Among these plausible alternative explanations are the myriad 

non-racial variables which were not taken into account by the 
Baldus Study in trying to explain the sentencing “discrepancies” 
which the petitioner is pleased to ascribe to race. See Point II.D, 
infra. 

   



12 

might be held to encompass claims of racially discrimina- 
tory sentencing, it would be utterly anomalous to hold 

that such claims may be established on facts which 

would plainly fail to violate the Fourteenth Amendment. 
It is only by virtue of the Fourteenth Amendment, after 
all, that the Eighth Amendment has any application to 
the State of Georgia's sentencing practices at all. 

Further, this Court only recently reiterated that the 

intent and culpability of state actors is indeed relevant 
to Eighth Amendment claims. In Whitley v. Albers, 106 
S.Ct. 1078, 1084 (1986), Justice O’Connor’s opinion for 
the Court stated as follows: 

It is obduracy and wantonness, not inadvertence or 
error in good faith, that characterize the conduct 
prohibited by the Cruel and Unusual Punishments 
Clause, .... 

While there the Court was addressing the Eighth 
Amendment’s application to conditions of confinement 
rather than methods of sentencing, the underlying prin- 
ciple still applies in both instances: The cruel and un- 
usual punishment clause has no legitimate application to 
the merely “inadvertent” and unintentional imperfec- 
tions and aberrations in our human system of criminal 
justice. Accord: Pulley v. Harris, 104 S.Ct. at 881. 

Petitioner’s contention that inadvertent statistical dis- 
parities in the distribution of death sentences violates 
the Eighth Amendment is a grotesque distortion of the 
Constitution. The Eighth Amendment has nothing to do 
with a requirement for precisely calibrated allocations of 
sentences among the various races and ethnic groups. 

What the Eighth Amendment has been held to require 
in the allocation of the death sentence is that it not be 
dispensed in a wholly arbitrary and ‘“freakish” manner, 
such that there is no rational justification for the deci- 
sion that one man is sentenced to death while another 

 



13 

receives only a term of imprisonment. The death penalty 
procedures applied in this case by the State of Georgia 
have conclusively passed that test, Zant v. Stephens, 462 

U.S. at 879-80, and nothing in the Baldus studies can 
undermine that controlling fact. 

C. The Standard of Statistical Proportionality Advo- 

cated by Petitioner Is Unreasonable, Unworkable, 

And Unjust When Applied To The Outcome of the 

Criminal Sentencing Process 

This Court has repeatedly stressed that in capital 
cases the jury is called upon to make a “highly subjec- 
tive, unique, individualized judgment regarding the 
punishment that a particular person deserves.” Caldwell 

v. Mississippi, 105 S.Ct. 2633 n.7 (1985), (quoting Zant 
v. Stephens, 462 U.S. 862, 900 (1983). That sensitive 
judgment is simply not susceptible to the crude cate- 
gorizations and generalizations on which all the conclu- 
sions and comparisons of the Baldus study must ulti- 
mately rest. 

In Pulley v. Harris, supra, 104 S.Ct. at 881, this Court 

further acknowledged that 

Any capital sentencing scheme may occasionally pro- 
duce abberational outcomes. Such inconsistencies are 
a far cry from the major systemic defects identified 
in Furman. As we have acknowledged in the past, 
“there can be no ‘perfect procedures for deciding in 
which cases governmental authority should be used 
to impose death.” ” . [citations omitted] 

Petitioner’s arguments cannot be reconciled with the 
foregoing observations. Petitioner’s theory holds that 

any deviation ® from statistically-based norms of racially 

3 Petitioner’s brief asserts that “under the constitutional princi- 
ples outlined earlier, racial discrimination of any magnitude is 

unconstitutional.” (Pet.’s Br., p. 95; emphasis added). 

 



  

14 

proportional outcomes in a capital sentencing system 
would “require the invalidation of that system as a 
whole.” Pet. Br. p. 107. The disastrous practical im- 
plications of this legal theory are perhaps the best proof 
of its invalidity. 

Initially, the Court should carefully ponder exactly 
what a state would be required to do in order to ‘“re- 
habilitate’” a capital punishment system condemned un- 
der petitioner’s theory of “statistical unconstitutionality.” 
If the reason for the system’s invalidation is its failure 

to conform capital sentencing outcomes to “acceptable” 
norms of racial balance, then the only fitting remedy 
would presumably be one that would eliminate or rectify 
such disparities to the fullest extent possible. See, e.g., 
Swann v. Charlotte Mecklenberg, 402 U.S. 1 (1971). 

It would plainly not be enough for the state to enact 
and implement objective procedures and standards which 
prevent the arbitrary and unrestricted exercise of sen- 
tencing discretion. The State of Georgia has already 
done precisely that, to the full satisfaction of this Court. 
See Gregg and Zant, supra. The only evident alternative, 
then, would be for the state to take more direct and 
positive measures—known in other contexts as affirma- 
tive action—to assure the elimination of racially dis- 
proportionate sentencing outcomes. 

This would presumably and logically entail a mora- 
torium on the execution of all black murderers and of 
all murderers of white victims until the offensive statis- 
tical disparity was eliminated. Executions of white mur- 
derers of black victims could presumably go forward, 
since neither “defendant-based” nor ‘“victim-based” racial 
bias could be credibly asserted in such cases. If this 
seems a bizarre and distorted remedy, it is because pre- 
cisely such a remedy is required to fit the distorted and 
anomalous logic of petitioner’s legal theory. 

There is really no remedy which could satisfy the un- 
reasonable and unrealistic standards of class-based jus- 

   



15 

tice advanced by petitioner in this case. Petitioner’s pur- 
ported concern that racial factors infect the sentencer’s 

decisions in capital cases could only be resolved by the 
abolition of all jury discretion and the adoption of a 
mandatory death penalty approach (or, of course, com- 
plete abolition). But this Court has already rejected 
such an approach, Woodson v. North Carolina, 428 U.S. 
280 (1976), in favor of a regime which consciously 
tolerates the occasional variances produced by the sen- 
tencer’s discretion as long as they are rationally gov- 
erned by objective limitations and standards. Pulley wv. 
Harris, 104 S.Ct. at 881. Acceptance of petitioner’s argu- 
ments in this case would require the abandonment of 
these fundamental principles of post-Furman capital 
punishment law. 

The logic of petitioner’s theory entails further prac- 
tical repercussions which are incompatible with any 
viable system of criminal sentencing. 

If a state’s capital sentencing system is invalid for its 
failure to produce racially proportionate outcomes, then 
what of the other forms of criminal sentencing? For ex- 
ample, if those sentenced to death in Georgia were in- 
stead sentenced to life imprisonment without possibility 
of parole, would the racial proportionality argument lose 
all of its force—such as it is—merely because the death 
penalty was no longer implicated? Nothing in the core 
logic of petitioner’s argument so indicates. 

Indeed, petitioner’s primary argument in this case is 
phrased as follows (Pets Br. p. 32): “A. The Equal 
Protection Clause of the Fourteenth Amendment Forbids 
Racial Discrimination in the Administration of Criminal 
Statutes.” [emphasis added]. Although this point is un- 
assailable by itself, petitioner insistently equates collec- 
tively “disproportionate” sentencing outcomes with the 
actionable racial discrimination he refers to. The argu- 
ment therefore plainly extends the demand for racial 
equilibrium in sentencing to other serious criminal pen- 

 



16 

alties (e.g., life imprisonment), if not to all criminal 
penalties. Compare Britton v. Rogers, 631 F.2d 572 
(8th Cir. 1980), where the court rejected the argument 
that racially disparate sentencing outcomes in past rape 
cases justified habeas corpus relief. 

The implication is clear. Acceptance of petitioner’s 
argument would open the door to Title VII-style “dis- 
parate impact” challenges to criminal sentences of all 
kinds. The entire criminal sentencing process would be- 

come bogged down in the same morass of “underutiliza- 
tion” concepts, multivariate regression analysis, and 
“goals” or quotas which now complicate employment dis- 
crimination law. 

Nor do the radical implications end there. 

If the Constitution requires collective sentencing out- 
comes to satisfy some acceptable norm of racial propor- 
tionality, what then of the other “suspect” classifications 
under this Court’s Equal Protection jurisprudence? For 
example, discriminations based on alienage or on national 
origin now trigger the same degree of scrutiny as race 
discrimination. City of Cleburne v. Cleburne Living Cen-~ 
ter, 105 S. Ct. 3249, 3255 (1985). Moreover, it is now 

recognized that gender-based classifications “also call for 
a heightened standard of review,” City of Cleburne, 105 
S. Ct. at 3255, as do those based upon illegitimacy. Id. 

Accordingly, petitioner’s theory would also require pro- 
portional allocation of capital sentences with respect to 
such classifications as alienage, ethnicity, sex, and legiti- 
macy. If black murderers are entitled to invalidate their 
death sentences on grounds of statistical disparate im- 
pact, it would follow that those falling within the other 
specially protected classifications are entitled to produce 
additional studies showing analogous forms of disparate 
impact as to their respective groups. Further, petition- 
er’s argument would allow defendants of all classifica- 
tions to challenge their sentences based on corresponding 

   



17 

variants of petitioner’s theory of victim-oriented discrim- 
ination—e.g., a claim that those who murder American 
citizens are more likely to receive the death sentence 
than those who murder resident aliens. Such a claim 
would stand on the exact same constitutional footing as 
the claim at issue here. All of these predictable reper- 
cussions would hopelessly complicate the state’s efforts 
to enforce capital punishment systems which have already 
been upheld as valid by this Court. 

These are not exaggerated alarms, but merely acknowl- 
edgement of the logical consequences that could follow 
the Court’s acceptance of petitioner’s radical theory. Just 
as theories of statistical-based employment discrimination 
have produced permutations once deemed inconceivable, 
e.g., AFSCME v. State of Washington, 578 F.Supp. 846 
(D.Wash. 1984), rev’d, 770 F.2d 1401 (9th Cir. 1985), 
so too would endorsement of petitioner’s theory of dis- 
parate impact in sentencing lead to bizarre and unfore- 
seen applications as well. 

No workable system of criminal justice could accom- 
modate the demands for race- and class-based parity in 
sentencing advanced by petitioner. Nor does the Consti- 
tution require a regime of “statistical justice” which 
would subject the validity of every criminal sentence to 
the vagaries and manipulations of fluctuating demographic 
data. 

II. EVEN IF A DISPARATE IMPACT STANDARD 

WERE APPROPRIATE IN THE CRIMINAL SEN- 
TENCING CONTEXT, PETITIONER FAILS TO 
MAKE A PLAUSIBLE CASE ON THAT BASIS AS 
WELL 

A. Petitioner’s Basic Contention is Based on a Myth 

The core premise of petitioner’s argument is the per- 
sistently repeated charge that the death penalty as admin- 
istered today pervasively discriminates against blacks. 
The problem with this key premise is that it is demon- 
strably false. 

 



  

18 

In a comprehensive study of sentences imposed on thou- 
sands of killers during the period 1980-1984, the Justice 
Department’s Bureau of Justice Statistics has discovered 
that it is white defendants who are disproportionately 
sentenced to death and disproportionately executed in 
this country. Bureau of Justice Statistics Bulletin, Capi- 
tal Punishment 1984, NCJ-98399, pp. 7-9, Tables 11, A-1, 
A-2 (August 1985) (hereafter cited as “BJS Bulletin”). 

The BJS report shows that for every 1,000 whites ar- 
rested on homicide charges, approximately 16 were sent 
to prison under sentence of death. BJS Bulletin. at p. 9, 
Table A-2. In comparison, fewer than 12 blacks for 
every 1,000 arrested on the same charges were sent to 
death row. The data indicates that white perpetrators 
as a group are 36% more likely to be sentenced to death 
than black perpetrators of comparable capital offenses. 

Further, white homicide convicts on average run a sig- 
nificantly greater likelihood than their black peers (i.e., 
55% more likely) of actually being executed subsequent 
to death sentence. From 1977 to 1984, 1.7% of all death 
row whites were actually executed, compared to only 
1.1% of blacks on death row. Id., p. 7, Table 11. 

These nationwide figures are not to suggest that the 
death penalty as administered actually discriminates 
against white perpetrators. The complex combination of 
factors involved in each individual homicide is so unique 
and personalized that attempts to draw legitimate infer- 
ences from such generalized class-based sentencing varia- 
tions are futile. 

But the BJS statistics do discredit petitioner’s sweep- 
ing contention that anti-black discrimination permeates 
the capital sentencing process. Moreover, other reputable 
studies undercut the claims of wvictim-anchored race dis- 
crimination in capital sentencing as well. In sum, the 
  

4 See, e.g., Note, Discrimination and Arbitrariness in Capital 

Punishment: An Analysis of Post-Furman Murder Cases in Dade 

 



19 

image of a pervasively discriminatory criminal justice 
system which petitioner seeks to convey as a means of 
attacking the death penalty is flatly inaccurate. 

Petitioner might protest that the BJS Bulletin reflects 
nationwide data and is therefor technically irrelevant to 
a murder conviction under Georgia state law. But by 
the same reduction logic, the state-wide data relied upon 
for petitioner’s most strongly-asserted contentions would 
also be over-inclusive. 

A truly-focused study for purposes of legitimate, 
“apples-to-apples” comparison between petitioner’s sen- 
tence and those in like cases—and one which eliminates 
cross-regional and urban/rural factors which might also 
account for sentencing disparities—would have to be con- 
fined to (1) murders of law enforcement officers (2) in 
Fulton County only. Such a comparison with cases truly 
similar to his own would seem an obvious prerequisite 
to an individual claim of discriminatory sentencing. 
However, the limited number of such cases (i.e., six— 

see 580 F. Supp. at 378) is too small to allow for any 
valid statistical analysis or comparison. See, e.g., Adams 
v. Wainwright, supra, 709 F.2d at 1449; Andrews wv. 
Shulsen, supra, 600 F.Supp. at 426. Accordingly, if the 
Court were to limit the proof to truly comparable cases 
within the specific prosecution venue, the statistical ap- 
proach is plainly unsuitable due to insufficient data. 

B. The Theory of Victim-Based Discrimination is 

Legally and Logically Invalid 

Petitioner’s curious reliance on the oblique “race-of- 
the-vietim” approach is best explained by the fact that 
focusing strictly on race of the defendant simply would 

County, Florida, 1973-76, 33 STANFORD L. REV. 75, 100-01 (1980), 
which demonstrates that the seeming predominance of death sen- 

tences in the case of white-victim murders by blacks is fully ex- 

plained by the fact that such killings disproportionately account 
for the highly aggravated felony-murders which allow and motivate 

death sentences.  



  

20 

not work. As clearly demonstrated by the district court, 
580 F.Supp. at 368, by the Court of Appeals, 753 F.2d. 

at 887, and by the BJS Bulletin, supra, the death penalty 
is not disproportionately applied to black defendants. 
On the contrary. 

Although Eleventh and Fifth Circuit cases have 
broadly assumed that a death sentence may be challenged 
on the alternative grounds of victim-based disparate im- 
pact statistics, that theory is by no means established as 
the Law of the Land. 

Some courts have displayed well-founded skepticism 
towards this oblique and ‘“once-removed” method of at- 
tempting to prove discrimination. In Spinkellink ov. 
Wainwright, 578 F.2d at 614 n.389, the Fifth Circuit 
approvingly quoted the district court’s ruling that chal- 
lenges to the application of the death penalty “must nec- 
essarily be limited to the persons who receive it rather 
than their victims”. In Britton v. Rogers, supra, 631 
F.2d at 577 n.3, the Eighth Circuit held that convicted 
criminals lack standing to challenge victim-based racial 
discrepancies in sentencing. And the district court in 
the instant case opined that such victim-based claims are 
not cognizable under either the Eighth Amendment of 
the equal protection clause of the 14th Amendment. 580 
F.Supp. at 347. 

These concerns are well-taken, and should command the 
careful attention of this Court. A murderer freely se- 

lects his own victim; it would therefore be grotesquely 
ironic for this Court to hold that the slain wictim’s race 
can be subsequently invoked by the murderer as a shield 
against his just punishment. Yet that is exactly what 
the petitioner is doing in this case. A more distorted 
variant of the doctrine of jus tertit would be difficult to 
imagine. 

There are other convincing reasons why the Baldus 
study’s race-of-the-victim statistics cannot serve as a 

   



21 

valid or reliable basis for overturning death sentences. 
For instance, the record shows that the Baldus study 

was unable to account for the race of the victim in 62 
of the cases it examined. 580 F.Supp at 858. This raises 
the question of precisely how the Baldus study was able 
to verify that the juries in all the studied cases had ac- 
tually considered clear and reliable evidence of the race 

of the victim. After all, the murder victim is not present 
at the trial and the victim’s race is not normally a con- 
tested point requiring proof or authentication. There- 
fore, it is not at all clear that reliable evidence of the 

victim’s race is uniformly and unambiguously conveyed 
to the jury in every case. 

Yet the Baldus study and petitioner’s arguments rest 
on the assumptions that Georgia juries invariably have 
an accurate and unambiguous understanding of the vie- 
tim’s race—and that they ascribe significance to that in- 
formation. We submit that such an assumption is in- 
valid, providing further grounds for rejecting petitioner’s 
race-of-the-victim theory. 

C. The Findings of the District Court on the Study’s 
Invalidity Should be Affirmed 

In a thorough and painstaking analysis that warrants 
this Court’s careful attention, the trial court made con- 

vincing first-hand findings that the Baldus study was 
riddled with errors in its data base and was not essen- 
tially trustworthy; relied on statistical models which 
were not sufficiently predictive to support an inference 
of discrimination; and did not even compare like cases 
in purporting to find racially disparate impact. 580 
F.Supp. at 354-365. 

For reasons not clearly expressed, the Court of Ap- 
peals did not overtly pass judgment on these findings of 

fact. Instead, it chose to “assume” the Baldus study’s 
validity and proceeded to hold that petitioner’s argu-  



  

22 

ments failed as a matter of law even given that assump- 
tion. 753 F.2d at 894. 

Contrary to petitioner’s disingenuous suggestions, how- 
ever, the Court of Appeals in no way disturbed or ques- 
tioned the trial court’s actual findings of the study’s in- 
validity. Indeed, it expressly disclaimed any intent to do 
so. Id. at 894-95. 

Under Fed. R. Civ. P. 52(a), the Court of Appeals 
could have set aside the district court’s findings of fact 
only if they were ‘clearly erroneous.” United States V. 
General Dynamics, 415 U.S. 486 (1974). Obviously, the 
Court of Appeals did not do that in this case. So the 
trial court’s findings stand unimpeached. 

Therefore, if this Court does not affirm the Eleventh 

Circuit’s holding on the legal issues, petitioner’s death 
sentence should still be affirmed on the ground that the 
Baldus study is too flawed and untrustworthy to raise 
a genuine issue of racially disparate sentencing. Given 
the manifest thoughtfulness and thoroughness of the dis- 
trict court’s findings, there is no sound reason for this 
Court to avoid passing on whether they are clearly er- 
roneous. And it would be a presumptuous appellate court 
indeed that would dismiss the trial court’s deliberate and 
painstaking demonstration of the study’s many palpable 
flaws as “clearly erroneous.” 

D. The Myriad Individualized Factors and Combina- 
tions of Factors Which Influence A Death Sen- 

tence Are Not Susceptible To Quantification Or 

Precise Comparative Analysis 

Petitioner’s theory of discrimination is only as good as 
the precision and reliability of its base data, the predic- 
tive capacity of its statistical models, and the essential 
equivalency of the cases it purports to compare. The dis- 
trict court’s thorough scrutiny of the Baldus study pro- 
duced unassailable findings that it is substantially de- 
ficient in each of those critical aspects. 580 F.Supp. at 

 



23 

354-365." The study therefore fails to establish the 
factual predicate which is necessary even to reach peti- 
tioner’s novel legal theory. 

Putting aside the mere flaws, mistakes and inconsist- 

encies of the study, amici would call the Court’s atten- 
tion to what we consider to be a fatal and inherent fal- 
lacy in petitioner’s methodology. Petitioner’s lawyers and 
“experts” claim that they carefully recorded and ac- 
counted for some 200 legitimate sentencing variables 
(e.g., various aggravating and mitigating factors) in at- 
tempting to isolate the “inexplicable” sentencing dis- 
crepancies which they then blithely assigned to the race 
factor. The problem with this approach is that (a) they 
did not even thoroughly account for the factors which 
they claim to have accounted or “controlled” for; and 
(2) the limited number of sentencing factors which they 
did choose to account for did not even begin to exhaust 
the vast range of legitimate sentencing variables (and 
combinations thereof) which can result in a legitimate, 
non-discriminatory sentencing variation.® 

One particular example of these fundamental flaws is 
illustrative but by no means exhaustive. 

In demonstrating the numerous flaws infecting the 
data base of the Baldus studies, the district court found 

that the students who coded the various sentencing fac- 
tors affecting each case were limited by the study’s 
structure to entering only one method of inflicting death. 
As the court found, 580 F.Supp. at 356: 

5 Several professors or scholars who have a professional interest 
in the acceptability of statistical studies as binding proof in litiga- 
tion have filed a brief amicus curice supporting the complete 

validity of the Baldus studies. This Court should regard such 

palpably self-serving arguments with maximum skepticism. 

¢ The district court expressly so found, 580 F.Supp. at 364: 
“[The Baldus studies] do not account for a majority either of 

aggravating or mitigating circumstances in the cases.” 

 



  

24 

The effect of this would be to reduce the aggrava- 
tion of a case that had multiple methods of inflict- 
ing death. In coding this variable the students gen- 
erally would list the method that actually caused the 
death and would not list any other contributing as- 
saultive behavior. R463. [emphasis added]. 

The effect of such crude limitations on the accurate 
depiction of different capital cases can best be under- 
stood by observing how they would apply to the coding 
of an actual case. 

In Andrews v. Shulsen, 600 F.Supp. 408 (D.Utah 
1984), appeal pending, No. 84-2781 (10th Cir.), the de- 
fendant and his accomplice murdered three people and 
brutally injured two others while robbing a Hi Fi shop 
in Ogden, Utah. The immediate cause of death in the 
murders was simply shooting. But before the fatal shoot- 
ings, the defendants had (a) attempted to force the fa- 
ther of one of the victims, at gunpoint, to pour poisonous 
liquid drain cleaner down the throats of his own son and 
two other bound teenage victims (he refused); (2) force- 
fed the poisonous drain cleaner to the hapless victims, 
then taped their mouths shut; (3) raped one of the teen- 
age girl victims before methodically shooting her in the 
head; (4) attempted to strangle the father-vietim with 
an electric cord; and (5) viciously kicked a long ball- 
point pen deep into the father’s ear. 

It is obvious from the district court’s findings that the 
Baldus study’s methodology would not begin to capture 
or account for all the hideous particulars and compounded 
variables which moved a Utah jury to vote for the death 
sentence in Andrews Vv. Shulsen. The cause of death 
would have been listed by the coders as a shooting (see 
580 F.Supp. at 356). Clearly, the collective horrors of 
such a case cannot be reduced to neatly coded vari- 

ables in a statistician’s pigeon holes. This incapacity 
to capture the intangible but critical nuances of actual 

   



25 

murders undercuts the authenticity of all the study’s 
comparisons of supposedly similar cases. 

As it turns out, the murderers in Andrews v. Shulsen 
were black and their victims were white. The perpetra- 
tors in that case have appealed their death sentences, 
asserting the same claim of racially discriminatory sen- 
tencing presented in the instant case. If petitioner pre- 
vails here, the just death sentences of the likes of the 
“Hi-Fi” murderers will be absurdly attributed to racial 
factors in the eyes of the law, rather than to the malici- 
ous particulars which in fact account for them. Nothing 
in the Constitution or this Court’s capital punishment 
jurisprudence requires such an unreasonable and unjust 
result. 

CONCLUSION 

For all the foregoing reasons, the decision of the 
Eleventh Circuit should be affirmed. 

Respectfully submitted, 

DANIEL J. POPEO 

GEORGE C. SMITH * 

WASHINGTON LEGAL FOUNDATION 

1705 N Street, N.W. 

Washington, D.C. 20036 

(202) 857-0240 

Attorneys for Amici Curiae 

Washington Legal Foundation 

and 

Allied Educational Foundation 

* Counsel of Record 

Dated: September 19, 1986 

   







 



No. 84-6811 

  

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

WARREN McCLESKEY, 

Petitioner, 

VS. 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

On Writ of Certiorari to the 

United States Court of Appeals 
for the Eleventh Circuit 

  

  

Brief of Amici Curiae State of California, 
by John K. Van de Kamp, Attorney General, 
and County of Los Angeles, by Ira Reiner, 
District Attorney, In Support of Respondent 

  

  

JOHN K. VAN DE KAMP IRA REINER 

Attorney General District Attorney 
of the State of of Los Angeles 
California County 

MICHAEL C. WELLINGTON GEORGE M. PALMER 

Supervising Deputy Deputy District 
Attorney General Attorney 

SUSAN LEE FRIERSON HARRY B. SONDHEIM 

Deputy Attorney [Counsel of Record] 
General Head Deputy 

District Attorney 

3580 Wilshire 849 South Broadway 
Boulevard, Suite 800 11th Ploor 
Los Angeles, Los Angeles, 
California 90010 California 90014 
(213) 736-2236 (213) 974-5917  





TABLE OF CONTENTS 

INTEREST OF AMICI CURIAE 

SUMMARY OF ARGUMENT 

ARGUMENT 

§ 

THE NATURE OF THE DECISION-MAKING 

PROCESS IN A CONSTITUTIONAL CAPITAL 
SENTENCING SYSTEM JUSTIFIES REQUIRING 
MORE THAN THE LEVEL OF DISPARATE 
IMPACT PROFFERED BY PETITIONER TO 
ESTABLISH A PRIMA FACIE CASE OF 
PURPOSEFUL INVIDIOUS DISCRIMINATION 
IN THE IMPOSITION OF THE DEATH 
PENALTY 

A. The Strict Procedural 
Safecuards Built Into 
the Capital Sentencing 
Process Justify Applying 
the General Rule That 
Disparate Impact Alone 
Is Insufficient to 
Support a“Claim of 
Discrimination 

The Number, Complexity 
and Subjectivity of 
Factors Considered in 
Capital Sentencing Make 
Evidence of Disparate 
Impact Alone Insufficient 

Petitioner's Showing  



    

EACH 

TABLE OF CONTENTS 

(Continued) 

IT 

CAPITAL CASE 1S UNIQUE AND 
THE COMPARISON OF ONE CASE WITH 
ANOTHER, THROUGH THE USE OF 

STATISTICAL ANALYSIS, CANNOT 

REASONABLY BE EXPECTED TO YIELD 

VALID RESULTS 

A. Use of Generalized 
Statistical Studies of 
Capital Sentencing 
Decisions Has Been 
Uniformly Rejected by 
Lower Courts 

Capital Sentencing 
Decisions Are Different 
From Decisions In Other 

Contexts 

Critical Pactors in 

Capital Sentencing 
Decisions Cannot Be 
Accurately and Reliably 
feasured 

A Generalized Statistical 
Analysis of Capital 
Sentencing Decisions in 
Georgia Cannot Explain 
the Reasons Why Petitioner 
Was Sentenced to Death 

Conclusion 

ii. 

Page 

35 

43 

44 

   



TABLE OF CONTENTS 

(Continued) 

Page 

113 

PETITIONER'S STATISTICAL ARGUMENT 

UNDERMINES THE RIGHT TO TRIAL BY 

JURY AND. SUBSTITUTES IN ITS. PLACT 

TRIAL BY STATISTICAL ANALYSIS 46 

CONCLUSION 50 

iii, 

 



  

TABLE OF AUTHORITIES 

Cases 
Page 

Abney v. United States, 

431 U.8. 651 (1977) 47 

Adams v. Wainwright, 
709 P.24 1443 
{11th Cir.21983) 34 

Alexander v. Louisiana, 

405 U.S. 625 (1972) 38,39 

Arlington Heights wv. 
Metropolitan Housing Corp., 
429 U.8. 252 (1977) 15,16,17,28,33 

Batson 'v. Kentucky, 
D.S. r 

90 L.Ed.2d 69 (1986) l16,17,20 

Castaneda v. Partida, 
430 U.S. 482 (1977) 24,33,38 

Dothard v. Rawlinson, 

433 U.S. ‘321 (1977) 40 

Duncan v. Louisiana, 

3291 U.S. 145 (1968) 46,47 

Eddings v. Oklahoma, 

455 U.S. 104 (1982) 25-26 

Gomillion v. Light foot, 
364 U.S. 339 (1960) 15,31,33 

Gregg v. Georgia, 

428 U.8. 153 (1976) 19,49-50 

iv. 

   



TABLE OF AUTHORITIES 

(Continued) 

Cases 

Hernandez v. Texas, 
347. U.S. 475 (1954) 

Keely v. Westinghouse 
Rlectric Corp., 
404 F.Supp. 573 
(E.D.Mo. 1975) 

Lockett v. Ohio, 
438 U.S. 586. (1978) 

Lockhart v. McCree, 
U.S. 

0 L.Ed.2d4 137 (1986) 

McCleskey v. Kemp, 
753 P.24 877 
{11th Cir. 1985) 

McCleskey v. Zant, 

530 F.Supp. 338 
{N.D. Ga. 1984) 

McCorquodale v. State, 

211 8.E.24 577.4GaL.73974) 

People v. Frierson, 

25 Cal.34 142 (1979) 

People v. Harris, 
283 Cal.3d 935 (1931) 

People v. Jackson, 

28 Cal.3d 264 (1980) 

Page 

27 

50-51 

25 

39-40 

21,27 

27 

37 

 



  

TABLE OF AUTHORITIES 

(Continued) 

Cases 

Pulley v. Harris, 
465 U.5. 37 (1984) 

Shotwell Mfg. Co. v. 
United States, 
371 U.S. 341 (1963) 

Smith v. Balkcom, 
660 F.24 573, as mod. 

671. F.2d 858 (5th Cirh:s 1982) 

Spaziano v. Florida, 
468 U.S. 447 (1984) 

Spinkellink v. Wainwright, 
578 ¥.24 532 
(5th Cir. 1278) 

Stephens v. Kemp, 
464 U.S, 1027 (1983) 

Taylor v. Louisiana, 
419 U.S. 522 (1975) 

Teamsters v. United States, 
431 U.8. 324 (1977) 

Turner v, Murray, 

B.S. a 

0 L.E4.28 27 (1986) 

Washington v. Davis, 

426 U.8.:229 (1976) 16, 

vi. 

  

Page 

4,22,41 

47 

34,35 

19 

34 

34-35 

47 

33-34,44-45 

20 

17,24-25,33 

   



TABLE OF AUTHORITIES 

(Continued) 

Cases 

Page 
Wayte v. United States, 

BTL 50s Lg (1985) 16 

Yick Wo v. Hopkins, 
118 U.S. 356 (1386) 15,31,32 

Constitution 

United States Constitution: 

Eighth Amendment 5:13.17 

Fourteenth Amendment 5¢:13,15,17 

Sixth Amendment : 46 

Statutes 

Cal. Pen, Code: 

§ 190 3 

Cal. Stats.: 

1977, ch. 316 3 

Rules 

U.S. Supreme Court Rule 36.4 1 

vii.  



  

TABLE OF AUTHORITIES 

(Continued) 

Miscellaneous 

Page 

Kleck, Life Support for Ailing 
Hypotheses: Modes of 
Summarizing the Evidence for 
Racial Discrimination in 
Sentencing, 9 Law and Human 
Behavior, at 271 (1985) 12 

  

  

  

  

  

Baldus and Cole, Statistical 

Proof of Discrimination, 
at: 5 (1980) 44 

  

  

Walker & Walker, The English 
Legal System, at 229 (1980) 46 

  

  

viii. 

   



Amici curiae, the State of California 

by John K. Van de Kamp, Attorney General, 

and the County of Los Angeles (a political 

subdivision of the State of California), 

by Ira Reiner, District Attorney, submit 

this brief in support of respondent pur- 

suant to Rule 36.4 of the Rules of the 

Supreme Court of the United States. 

INTEREST OF AMICI CURIAE 

John K. Van De Kamp, Attorney General 

for the State of California and Ira 

Reiner, District Attorney for the County 

of Los Angeles, State of California, 

jointly represent the People of the State 

Of California inthe case of In re Earl 
  

Lloyd Jackson, Crim. 22165, pending before 
  

the California Supreme Court on petition 

for writ of habeas corpus. Said case is 

pending before a referee appointed by the 

California Supreme Court to take evidence 

on three issues, one of which is highly 

l. 

 



  

pertinent to the instant case: Whether 

"death sentences in California have been 

discriminatorily imposed on the basis of 

{1) the race of the victims; (2) the-race 

of the defendant; and/or (3) the gender of 

the defendant ."1/ Amici curiae have been 

litigating just the discovery aspect of 

this case for over two years. This order 

for a reference hearing was granted on 

the basis of a statistical analysis of 

limited data on death and 1life-without- 

possibility-of-parole cases. It is the 

theory of the defense in Jackson that a 

statistical analysis of death and li fe- 

without-possibility-of parole cases will 

show that persons who kill white victims, 

  

l. All of the factual representations 
made in this brief are based upon matters 
set forth in the record as well as the 
personal experiences of the government 
attorneys who have litigated, before the 
California Supreme Court and its appointed 
referee, the petition for writ of habeas 
corpus in the Jackson case. 

2 

 



and male, black defendants are more likely 

to be charged with and to receive the 

death penalty because of these unconstitu- 

tional racial/gender factors than are 

persons in other racial/gender categories. 

Defendant Jackson, who is black, was 

charged with murdering two elderly white 

women in two separate burglaries of their 

residences in August and September 1977.2 

These charges made him eligible for the 

death penalty pursuant to California Penal 

3/ Code section 190 ‘et seq. After a jury 

  

2. The race of defendant Jackson as well 

as the: race of his two victims are not 

alleged or referred to in the Information. 

3. The law under which Jackson was con- 
victed and sentenced (Stats. 1977, Ch. 
316), enacted August 11, 1977, requires 
that one or more "special circumstances" 
be alleged and found true by the trier of 
fact before capital punishment may be 
imposed. This law was repealed, and 
essentially reenacted as modified, by the 
"Briggs Initiative", passed by the voters 
and effective November 7, 1978, princi- 
pally to expand the number of special cir- 
cumstances making a person eligible for 
capital punishment. 

3. 

 



  

verdict finding him guilty as charged and 

imposing the death penalty, a judgment 

was rendered in March 1979, sentencing him 

to death. On his automatic appeal to the 

California Supreme Court, the judgment was 

affirmed and a concurrent petition for 

writ of habeas corpus was denied. People 

v. Jackson, 28 Cal.34 264-(1980).:" The law 

under which defendant Jackson was sen- 

tenced has been held constitutional on its 

face by this Court and the California 

Supreme Court. Pulley viaHarris, 465: U.8. 

37 °{1984); People v. Frierson, 25 Cal.34d   

142, 172-195 (1979). 

Defendant Jackson filed a subsequent 

petition for writ of habeas corpus, which 

is the basis for the reference hearing 

ordered by the California Supreme Court. 

That court first ordered the reference 

hearing to address two unrelated issues. 

   



Defendant Jackson then moved to 

expand the reference hearing on the theory 

that a'statistical analysis of capital 

case data showed evidence of race and 

gender discrimination in violation of the 

Eighth and Fourteenth Amendments to the 

Federal Constitution. 

In support of his application, he 

offered inter alia the declaration of 

Dr. James Cole, Ph.D., a statistician, who 

analyzed race and gender homicide data 

published annually by the Bureau of 

Criminal Statistics, a division 'of the 

State Attorney General's Office, and data 

supplied by the State Public Defender's 

Office. Using a total of three variables 

(victim race, defendant race, defendant 

sex) for all state-wide homicides, all 

state-wide robbery murders, and all 

robbery-murders in Los Angeles County, in 

various combinations of what is princi- 

5: 

 



  
  

pally a cross tabulation analysis, 

Dr. Cole concluded, without reference to 

other circumstances of any cases, that 

killers of white victims are five times 

more likely to receive the death penalty 

than killers of non-white victims. 

Similar proportions were found for black 

de fendants when compared to other groups. 

On this basis, the reference hearing 

was ordered expanded to address the issue 

of whether death sentences in California 

have been discriminatorily imposed on the 

basis of race of victim, race of de fen- 

dant, or gender of defendant. 

Subsequently, defendant Jackson moved 

for discovery of a virtual mountain of 

statewide homicide data. Jackson 

requested and was granted an order com- 

pelling the District Attorney of Los 

Angeles County to provide this data, even 

though most of the Jdata.is a matter of 

6. 

 



public record, located outside the juris- 

diction of Los Angeles County] 

To comply with this order, amici sub- 

poenaed homicide data from all of the 

Superior Court Clerks in the 58 counties 

throughout the State as well as other 

entities such as the Administrative Office 

Of the Court. Because of the complex 

nature of the task of obtaining even 

limited data from the Clerks, and because 

not one single Clerk's Office maintains 

such data on computers, the process of 

obtaining the data was time-consuming and 

expensive. Clerks' records in literally 

thousands of cases had to be individually 

identified, categorized and reviewed to 

  

4. For a more detailed exposition of the 
order and what followed, the Court is 
respectfully referred to Argument I of the 
Brief of Amici Curiae, State of California 
and County of Los Angeles, filed in the 
case of Hitchcock v. Wainwright, 
No. 85-6756, now pending before this Court 
on Writ of Certiorari. 

    

2.  



rN TS HfHPbAH-’yd 

obtain the required data. When, after six 

months, this effort by several lawyers and 

numerous Court Clerks and their staffs was 

completed, the product of this effort was 

found to be highly questionable in terms 

of its quality. For example, some cate- 

gories of data by the Los Angeles County 

Clerk's Office are subject to a 50% plus 

error rate and there is reason to believe 

that data submitted by other Clerks from 

throughout the State may also be subject 

tO error. 

The discovery process itself heigh- 

tens the interest of amici in the instant 

case. Data gathering must take place 

be fore a statistical challenge to the 

death penalty can be mounted. The fact 

that the data gathering process may differ 

from one jurisdiction to another and the 

fact that it may occur in the absence of a 

court order, as in the instant case, are 

8. 

 



not significant. Regardless of who 

gathers the data, it will be a time- 

consuming, expensive process. This, in 

turn, causes inordinate delay in the 

judicial process. The quality of the 

product of discovery (the data) may be 

highly questionable. It may, as in 

Jackson, be subject to significant error. 

More importantly, as we set forth in 

Argument I1,:infra, a capital case cannot 

be reduced to statistical data which 

accurately reflects how and why the jury 

reached its decision. 

Since the issues presented in the 

instant case are so closely related to 

those of the Jackson case, amici curiae 

have concluded that the outcome of the 

instant case will have a substantial 

impact upon the administration of criminal 

justice, and the death penalty law in 

particular, throughout California. 

9. 

 



Amici's experience in the Jackson case has 

made us familiar with the nature of the 

discrimination issues and the arguments 

offered by petitioner in this case. 

SUMMARY OF ARGUMENT 

When a state imposes its death 

penalty under a constitutional system 

which by its very design minimizes any 

risk of arbitrariness, generalized claims 

of arbitrariness in the imposition of that 

state's death penalty should be fore- 

Closed, Only a particularized and 

factually supported claim of purposeful 

invidious discrimination in the imposition 

of petitioner's own death sentence should 

have entitled petitioner to a hearing. 

The nature of the decision-making 

process in a constitutionally valid 

capital-sentencing system justifies 

requiring more than the evidence of dis- 

parate impact proffered by petitioner to 

30. 

 



establish a prima facie case of purposeful 

invidious race discrimination. This 

decision-making process is distinctly 

different from other decision-making 

contexts in that it is more complex and it 

contains many more safeguards against 

purposeful discrimination. Thus, only 

evidence of a stark pattern could ever 

suffice to demonstrate a prima facie case 

of discrimination in the imposition of the 

death penalty. 

Moreover, such a stark pattern of 

race discrimination can never be demon- 

strated through the use of a statistical 

analysis, no matter how sophisticated the 

methodology. Each case is unique, 

involving its own quantum of variables, 

which are not comparable to any other set 

of variables. The factors found in the 

evidence which move a jury to impose 

capital punishment, even when identified, 

11,  



  

are impossible to measure accurately. 

Thus, no statistical analysis of capital 

eligible cases will yield a valid result. 

Finally, petitioner's argument, when 

reduced to its essence, is an assault upon 

the judicial system itself, for it postu- 

lates that no jury's decision can ever be 

trusted unless it passes the litmus test 

of a statistical analysis. This proposi- 

tion is unacceptable as a matter of 

5/7 
constitutional law.= 

  

5. Petitioner cites many articles from 
law reviews and other treatises to demon- 
strate that study after study has found 
evidence of race discrimination in the 
imposition of the death penalty specifi- 
cally, and in sentencing generally, in 
Georgia and other states in the South. 
Neither time nor space permits us the 
luxury of answering the contentions made 
in these many articles. However, a 
recent, objective review of some of these 
studies and their conclusion may be found 
in Kleck, Life Support for Ailing 
Hypotheses: Modes of Summarizing the 
Evidence for Racial Discrimination in 
Sentencing, 9 Law and Human Behavior, at 
271 (1985). 

  

  

  

  

12. 

 



ARGUMENT 

I 

THE NATURE OF THE DECISION- 
MAKING PROCESS IN A CONSTI- 
TUTIONAL CAPITAL SENTENCING 
SYSTEM JUSTIFIES REQUIRING 
MORE THAN THE LEVEL OF 
DISPARATE IMPACT PROFFERED 
BY PETITIONER TO ESTABLISH 
A PRIMA FACIE CASE OF PUR- 
POSEFUL INVIDIOUS DISCRIMI- 

NATION IN THE IMPOSITION OF 
THE DEATH PENALTY 

Petitioner contends that he presented 

a prima facie case of discrimination in 

the imposition of the death penalty in 

Georgia, that his proof was unrebutted and 

that it was sufficient to support a 

finding that Georgia's entire capital 

sentencing system has been unconstitu- 

tionally applied in violation of the 

Eighth and Fourteenth Amendments on the 

basis of the race of the victim. Amici 

curiae urge that petitioner's proof 

consisted, at most, of little more than a 

relatively small pattern of disparate 

13. 

 



impact which was legally insufficient to 

constitute a prima facie case of discrimi- 

nation, much less to support a finding 

that Georgia's entire facially constitu- 

tional capital sentencing system has been 

applied unconstitutionally. 

The essence of petitioner's submis- 

sion is that the minimal. standards 

required to prove racial discrimination in 

the context of job promotion or selection 

of a jury should apply in the context of 

capital sentencing. Brief for Petitioner 

at. 31-32. Amici curiae urge‘:that: such 

minimal standards should not apply to 

proof of racial discrimination in the 

capital sentencing context. As we shall 

demonstrate, given the nature of the 

decision-making process in a constitu- 

tional capital sentencing system, the 

general rule should be followed that, 

when proof of disparate impact alone is 

14. 

 



offered, only "a pattern as stark as that 

6/ 2) 
in:Gomillioni~ or Yick Wo" will be 
  

determinative on the issue of purposeful 

  

invidious discrimination. Arlington 
  

Heights v. Metropolitan Housing Corp., 429 
  

U.8,925240266:and. fn. 134(1977). 

Whenever governmental action is 

claimed to be racially discriminatory in 

violation of the Equal Protection Clause 

of the Fourteenth Amendment, the 

"invidious quality" of that action: "must 

ultimately be traced to a racially 

  

6. In Gomillion v,. Lightfoot, 364 U.S. 
339 (1960), a state redefined a city's 
boundaries in such a manner that the 
formerly square-shaped city became a 
28-sided city with the result that all but 
four or five of 400 black voters were 
disenfranchised while no white voters 

were. 

    

7. In ¥ickiVo v. Hopking, 118 UiS5...356 
(1886), a city administered an ordinance 
in such a manner that permission to 
operate a laundry was denied to all 200 
Chinese who sought permission during the 
same time period that such permission was 
granted to 80 non-Chinese. 

15.



  

discriminatory purpose." Washington v. 
  

Davis, 426 U.S. 229, '2407(1976). ‘The 

burden of proof is on the claimant and the 

showing required of the claimant to 

establish a prima facie case of purposeful 

invidious discrimination depends on the 

context in which the claim arose. See 

  

Batson v. Kentucky, U.S. ’ r 90 
  

L.BA.2d 69, 85-87 (1986); Wayte v. United 

States, U.S. ’ , B4:L.B4.,24:547,   
  

556-557 and fn. 10 (1985); Washington v. 
  

Davis, gupta, 426 U.8. at 253 {Stevensj, J. 
  

concurring). 

The general rule is that unless there 

is a "pattern as stark as that in 

Gomillion or Yick Wo, impact alone is not 
  

determinative." Arlington Heights v. 
  

Metropolitan Housing Corp., supra, 429 
  

U.5. at 266. In some exceptional con~ 

texts, proof of a less than stark pattern 

of disparate impact may demonstrate 

16. 

 



purposeful racial discrimination because 

the very nature of the disputed decision- 

making task itself makes a racially 

disparate impact unexplainable except on 

racial grounds. For example, "[p]lroof of 

systematic exclusion from the venire 

raises an inference of purposeful discri- 

mination because the 'result bespeaks 

discrimination.', [Citations.]" Batson v. 

Kentucky, supra, 90 L.Ed.2d at 86; see 
  

also Washington v. Davis, supra, 426 U.S. 
    

at 238-245. "But such cases are rare" 

(Arlington Heights v. Metropolitan Housing 
    

Corp. , Supra, 429 U.S. at: 266), and 
  

important distinction may be drawn to 

separate them from those in which the 

8/ general rule applies.— 

  

8. Whether petitioner's claim is 
presented in terms of an Eighth Amendment 
cruel and unusual punishment concern or in 
terms of a Fourteenth Amendment equal 
protection concern, the basic thrust of 
his claim is the same: governmental action 

137.  



A. The Strict Procedural Safeguards 

Built Into the Capital Sentencing 
Process Justify Applying the 
General Rule That Disparate Impact 
Alone Is Insufficient to Support 
a Claim of Discrimination 

  

  

  

  

  

  

The decision-making process in the 

imposition of the death penalty is unique. 

Unlike any other decision-making process 

(such as in selecting the venire, or 

hiring or promoting employees or selling 

or renting a home, or drawing city voting 

ponies, or issuing permits for 

laundries), the decision-making process 

involved in the imposition of the death 

penalty is replete with built-in proce- 

dural safeguards against purposeful 

invidious discrimination on the part of 

the decision makers. First, a 

constitutional capital sentencing system 

  

has impacted in an invidiously discrimina- 
tory manner on a group of which he is a 
member. Thus, no matter how his claim is 
clothed, petitioner should be required to 
prove purposeful invidious discrimination. 
  

13. 

 



itself is "suitably directed and limited 

so as to minimize the risk of wholly 

arbitrary and capricious action.” "Gregg 

Vv. Georgia, "428° 0.,8.,%153,°179°91976).:" "A 

constitutional capital sentencing system 

"can rationally distinguish between those 

individuals for whom death is an appropri- 

ate sanction and those for whom it is 

not." ispaziano‘v, ’Plorida,~ 468 0.5." 447,   

460 (1984). Additionally, as a criminal 

de fendant, the capital defendant is 

entitled to insist that both the venire, 

from which the decision-making petit jury 

will be drawn, and the decision-making 

petit jury itself are selected pursuant to 

non-discriminatory criteria. Even the 

historically unfettered exercise of the 

peremptory challenge is restricted (for 

the prosecution at least), and the defen- 

dant may question at trial the peremptory 

exclusion of veniremen from the petit jury 

19:  



on account of their race. Batson v. 

Kentucky, supra, U.S. at 7:90 
  

L.EA.2d at 87. As an added precaution 

against purposeful invidious racial 

discrimination on the part of the decision 

makers, a capital defendant is entitled to 

have prospective jurors questioned on the 

issue of racial. bias if there .is.a: risk of 

racial prejudice infecting the sentencing 

proceeding. Turner v. Murray, UsS. 
  

’ 190: L<Bd.2d 27, :37-(1986) + ~=These 
  

are but a sampling of the panoply of 

safeguards protecting the capital 

sentencing decision-making process. 

The procedural safeguards against 

purposeful invidious discrimination which 

are an integral part of the capital 

sentencing decision-making process readily 

distinguish that process from the job 

promotion and jury selection decision- 

making processes. In those processes 

20,



there are no comparable built-in 

safeguards against purposeful invidious 

discrimination on the part of the decision 

makers. Thus, an examination of their 

decisions cannot begin with the same 

confidence. The safeguards present in 

capital sentencing justify applying the 

general rule that disparate impact alone 

will not establish a prima facie case of 

purposeful invidious discrimination 

unless, as the Court of Appeals held in 

the case below, the "disparate impact is 

so great that it compels a conclusion that 

the system is unprincipled, irrational, 

arbitrary and capricious such that 

purpose ful: [racial] discrimination=isw 

can be presumed to permeate the system." 

McCleshey v.: Kemp, 753-F.24.877,.:892:{11th 
  

cir. 1985). 
  

9. Contrary to petitioner's contention 
that the Court of Appeals "fashioned 
unprecedented standards of proof" and 

21,  



  

The Court has previously recognized 

and applied the principles underlying this 

conclusion in Pulley v. Harris, supra, 465 
  

U.S. at 51-54, Therein, the Court 

addressed the issue whether mandatory 

comparative proportionality review was an 

essential element of a constitutional 

capital sentencing system. The Court 

found it was not, if the capital 

sentencing system already had in place 

other extensive procedural safeguards 

against arbitrariness. Clearly, if a 

system's in-place procedural safeguards 

against arbitrariness are: factors to be 

considered in determining whether other 

such safeguards will be required, 

a fortiori, a system's in-place procedural 
  

  

"announced the abolition of the prima 
facie standard," the Court of Appeals in 
the case below merely restated this 
Court's general rule concerning proffers 
of disparate impact evidence. See Brief 

of Petitioner at 45, 62. 

22. 

 



safeguards against purposeful invidious 

discrimination are also factors to be 

  

considered in determining what standard of 

proof should be applied to claims of 

discrimination within that system. 

B. The Number, Complexity and 
Subjectivity of Factors 
Considered in Capital Sentencing 
Make Evidence of Disparate 
Impact Alone Insufficient 

  

  

  

  

  

In addition to the built-in proce- 

dural safeguards which distinguish the 

capital sentencing decision-making process 

from other decision-making processes, the 

greater number, complexity, subjectivity, 

and interactivity of factors legitimately 

affecting the capital sentencing decisions 

further distinguish the capital sentencing 

decision-making process from others. 

Likewise, this difference also justifies 

applying the general rule, in claims of 

capital sentencing discrimination, that 

proof of disparate impact which reflects 

23.



  

anything less than a stark pattern will 

not establish a prima facie case of 

purpose ful invidious discrimination. 

There are comparatively few factors 

which can legitimately affect the deci- 

sions whether to select a person to be a 

part of the venire or a grand jury or 

whether to hire an applicant for a posi- 

tion as a police officer. Many of these 

factors, such as the prospective grand 

Juror?s county of ‘citizenship or“ the 

prospective police officer's score on a 

civil service vocabulary examination, are 

also relatively simple, objective factors 

for the decision maker to weigh. Further, 

the same set of these factors are appli- 

cable in each decision whether to hire an 

individual for a job or to select an 

individual to sit on a grand jury. See 

Castaneda v. Partida, 430 U.S. 482, 
  

484-485 (1977); Washington v. Davis, 
  

24. 

 



supra, 426 U.S. at 232-236. In these 

contexts, a racially disparate impact 

evidenced by the decisions may itself hint 

of purposeful invidious discrimination 

merely because of the sparsity of alterna- 

tive explanations. 

The situation is starkly different as 

to decisions whether to sentence a person 

to death. These decisions are affected by 

countless legitimate factors, most of 

which are complex and subjective. Each 

individual case has its own set of unique 

legitimate factors. Indeed in each 

individual case, the capital-sentence 

decision maker is required to take into 
  

account "any aspect of a defendant's 

character or record and any of the circum- 

stances of the offense that the defendant 

proffers as a basis for a sentence less 

than: death." Lockett vi: Ohio;:i438:0.8. 

586, 604 (1978), emphasis added; Eddings 

25. 

 



  

v. Oklahoma, 455 U.S, 104,°111,:113-114 
  

(1982). 

It is ‘patent that the specific set of 

factors legitimately applicable to the 

capital sentencing decision in one case 

will not be the same set of factors legi- 

timately applicable to the vast majority 

of other capital sentencing decisions. 

Petitioner does not bring to the Court's 

attention a single Georgia case other than 

his own in which the decision maker was 

faced with evidence sufficient to find the 

defendant guilty beyond a reasonable doubt 

of killing a police officer to'preventihis 

own arrest for the public-endangering 

daytime armed robbery the officer caught 

him committing in a retail store, in which 

the robbery had been planned, in which the 

defendant had accomplices, in which the 

defendant boasted of the killing after his 

arrest, in which no mitigating evidence 

26. 

 



was presented to the penalty decision 

maker, and in which the defendant had 

  

three prior convictions for armed robbery. 

See -McCleskey v. Kemp, supra, 753 F.2d at 
  

  

882; McCleskey v. Zant, 580 F.Supp. 338, 
  

345-346 (N.D. Ga. 1984). Consequently, in 

the context of capital sentencing deci- 

sions, a racially disparate impact of 

those decisions does not itself suggest 

purposeful invidious discrimination 

because of the veritable ocean of alter- 

native explanations. 

Since a bare showing of a racially 

disparate impact of capital sentencing 

decisions does not begin to reflect the 

thousands of unique factors considered by 

the decision makers in all the cases; it 

cannot be said that such a disparate 

impact "bespeaks discrimination." See 

Hernandez v. Texas, 347 U.8.:475, 482 
  

(1954). Thus, proof of disparate impact 

27 «



  

alone cannot suffice to demonstrate 

purpose ful racial discrimination in the 

imposition of the death penalty. 

Arlington Heights v. Metropolitan Housing 
  

  

Corp. supra, 429 u.s. at 266. 
  

Cs Petitioner's Showing 
  

Petitioner's evidence, at most, was 

nothing more than a showing of disparate 

impact. The "bottom line" of his argument 

is that, even when 39 legitimate 

sentencing factors are taken into account, 

killers of white victims in Georgia are on 

an average over 4.3 times more likely to 

receive a death sentence than similarly 

10/ 
situated killers of black victims.— 

Brief for Petitioner at 55. 

  

10. According to petitioner, Professors 
Baldus and Woodworth collected data on 
over 500 factors. Brief for Petitioner at 
53. However, they considered only 39 
factors in what they called "their most 
explanatory model", reflecting a logistic 
regression analysis. 14. at 55, 80, 
emphasis added. Although 230 variables 

28. 

 



The fact that Professor Baldus consi- 

dered 39 legitimate sentencing factors 

does not alter the disparate impact nature 

of his showing. It is no more suggestive 

of the conclusion that the race of the 

victim influenced the entire capital 

sentencing process in Georgia than it is 

suggestive of the conclusion that other 

legitimate factors, somehow associated 

with the race of the victim, but distinct 

from the race of the victim, influenced 

the ‘process. In fact, if‘any conclusion 

can be drawn from Professor Baldus' 

figures it is the latter one. When 

Professor Baldus first examined Georgia's 

capital eligible cases and took into 

  

were considered in another model, 
reflecting a multiple regression analysis, 
Professor Baldus apparently was of the 
opinion that the "most meaningful summary 
indicators of the magnitude of the racial 
factors found" were those that he 
calculated under the logistic regression 
analysis. “'Id4.,°at’ 80. 

29.  



  

consideration only the race of the victim, 

he found that the death sentencing rate in 

Georgia was nearly 11 times higher in 

white victim cases than in black victim 

cases... 1d. at 52-53. This digparity 

plummeted from 11 to 4.3 when only 39 

legitimate race-neutral factors were 

considered. 1d. at 55. Thus, it would 

appear that when only a fraction of the 

innumerable possible legitimate capital 

sentencing factors were taken into 

account, the initial disparity was reduced 

by more than half. This would suggest 

that the. race of victim disparity: in 

Georgia merely reflects that white victims 

in Georgia are more likely to be targets 

of the aggravated type of killings which 

qualify the killer for the death penalty. 

In the enormously complex and subjec- 

tive context of capital sentencing, this 

"4.3" disparity based on a mechanical 

30, 

 



consideration of only 39 factors is 

relatively small and does not present a 

pattern resembling that found in Gomillion 
  

or Yick Wo. Accordingly, petitioner did 

not meet his burden of proof. 

11 

EACH CAPITAL CASE IS UNIQUE 

AND THE COMPARISON OF ONE 

CASE WITH ANOTHER, THROUGH 

THE USE OF STATISTICAL 

ANALYSIS, CANNOT REASONABLY 

BE EXPECTED TO YIELD VALID 

RESULTS 

The defect in petitioner's showing 

goes beyond his failure to demonstrate a 

level of disparate impact sufficient to 

make a prima facie case of purposeful 

invidious discrimination in the imposition 

Of Georgia's death penalty. Amici curiae 

urge that, in the unique context of capi- 

tal sentencing decisions, a generalized 

statistical showing of disparate impact 

does not even reliably show disparate 

impact. While it may be theoretically 

31.  



  

possible to reduce capital sentencing 

decisions to a statistical analysis, in 

reality no statistical analysis of those 

decisions will yield a valid result. 

As petitioner characterizes it, his 

argument is at heart simple and direct: 

"Evidence of racial discrimination that 

would amply suffice if ‘the stakes were a 

job promotion, or the selection of a jury, 

should not be disregarded when the stakes 

are life and death. Methods of proof and 

fact finding accepted as necessary in 

every other area of law should not be 

jettisoned in this one." Brief for 

Petitioner, at 31-32. 

This contention demonstrates on its 

face why it is unsound. The methods of 

proof and factfinding accepted as neces-— 

sary in other areas of the "law are not 

jettisoned here. No one suggests that the 

principles established in Yick Wo, 

32. 

 



Gomillion, Arlington Heights, and 
  

Washington v. Davis, supra (to name just a 
  

  

few pertinent cases) be ignored. Indeed, 

they are relied upon more strongly than 

ever. : However, this is .not .a.problem of 

discrimination in employment, housing or 

jury selection. Statistical analysis of 

capital cases is almost infinitely more 

complex than the statistical analysis of 

a job promotion or jury selection case. 

Petitioner has failed to meet the 

challenge of this argument. He masks over 

the near insuperable a1 tricultios he faces 

with legal rhetoric which fails to address 

the problems of a statistical analysis of 

capital cases. If this were a simple case 

and the data analyzed by petitioner's 

experts were limited as it is in other 

types of discrimination cases (e.g., 

Castaneda v. Partida, supra, 430 U.S. 482 
  
  

[Jury panel composition]; Teamsters v. 
  

33.  



  

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

[employment discrimination]), the problems 

we outline below would be considerably 

less important. EEE this is not a simple 

case. As we shall show, there is 

virtually no hope of success of showing 

race discrimination through a statistical 

analysis. 

A. Use of Generalized Statistical 
Studies of Capital Sentencing 
Decisions Has Been Uniformly 
Rejected by Lower Courts 

  

  

  

  

Other courts which have addressed the 

issue of whether such generalized 

statistical studies as were presented in 

the instant case can succeed have 

concluded such studies have virtually no 

hope of success. Smith v. Balkcom, 660 

F.2d 573, as modified 671 ¥.24 858, 859 

860 (5th Cir, 1982); Spinkellink v,. 
  

Wainwright, 578 F.284 582, 614-615 (5th 
  

Cir. 1978); Adams v. Wainwright, 709 P.24 
  

1443, 1449 (11th Cir. 1983); Stephens v. 
  

34. 

 



Kemp, 464 U.8.91027,:1030, n.# 2 (1933) 

(Powell, J., dissenting). As the Court 

stated in Smith v. Balkcom, supra, 671 
  

F.2d at 859: "The 'raw data selected for 

the statistical study bear no more than a 

highly attenuated relationship to capital 

cases actually presented for trial in the 

state. The leap from that data to the 

conclusion of discriminatory intent or 

purpose leaves untouched countless 

racially neutral variables." 

B. Capital Sentencing Decisions 
Are Different From Decisions 

In Other Contexts 

  

  

  

Petitioner's argument that his 

statistical analysis is only different in 

degree from statistical analyses in other 

contexts such as jury panel composition 

and employment discrimination fails to 

address and appreciate the difficulties 

inherent in a statistical analysis of 

capital cases. Upon reflection, it will 

35.  



  

be evident that there are qualitative 

differences which distinguish statistical 

analysis of capital cases from all other 

types of cases considered thus far by the 

courts. 

Focusing first on employment discri- 

mination cases reveals striking differ- 

ences. In this context, the factors about 

an employee's background that are relevant 

to job performance are in general directly 

comparable across employees. They include 

education (does the employee have a high 

school diploma or a college degree), 

previous relevant job experience (has the 

employee or applicant any previous secre- 

tarial experience; can he/she drive a 

large tractor-trailer truck), supervisor 

evaluations (the employee's typing ability 

is nonexistent, poor, excellent), and the 

like. A comparison of these: factors to 

the factors pertinent to death penalty 

36, 

 



decisions reveals there is no analogue in 

employment discrimination cases to such 

factors as the presence of torture in a 

killing. See McCorquodale v. State, 211 
  

S.E.24 i577,1'5679-580" (Ga. 1974). 

In addition, the decision makers and 

the decisions in capital sentencing have 

an entirely different character than in 

employment cases. In the employment 

situation, one company hires or promotes 

employees from a group of potential appli- 

cants., © In capital caseu, there is a 

separate decision maker (the trier of 

fact) for each case rather than one 

decision maker for all cases. In employ- 

ment decisions, a subset of employees is 

selected from a pool for a given number of 

jobs. In capital ‘cases, each case is 

decided on its own merits. There is no 
  

quota. In many hiring and licensing situ- 

ations, all applicants have to pass 

317.  



  

exactly the same objectively scored test. 

A charge of discrimination in this context 

can be supported if the test does not meet 

the standards for job relatedness. There 

is no analogy to these situations in 

capital cases. 

Other contexts such as whether a 

constitutionally racial balance has been 

achieved in the formation of a grand jury 

panel are even simpler than employment 

discrimination cases. See, €e.9., 

Alexander v. Louisiana, 405 U.S. 625 
  

  

(1972); Castaneda v. Partida, supra. 
  

  

Thus, relatively little statistical data 

may result in a compelling case. For 

example, in Alexander, a black defendant 
  

was able to show that although 21% of the 

adult local population was black, only one 

of 20 persons (5%) on the grand jury panel 

was black and none of the twelve persons 

on the grand jury which indicted him was 

38. 

 



black. This, together with evidence that 

the jury commissioners knew the race of 

all prospective jurors, was sufficient to 

prove a prima facie case. Clearly, the 

data in Alexander was reliable and the 
  

statistical analysis simple and 

compelling. 

Sentencing a person to death has 

elements not shared by these other types 

of decisions. Thus, one cannot expect 

statistical analyses aimed at detecting 

racial influences in death sentencing 

decisions to be the same as those that 

perform well in analyzing racial 

influences in other more simple social 

science contexts. 

C. Critical Factors in Capital 
Sentencing Decisions Cannot 
Be Accurately and Reliably 
Measured 

  

  

  

  

This Court has indicated its concern 

in evaluating the reliability of quantita- 

tive evidence. Lockhart v. McCree, 
  

  

39.  



  

DeSe [ H 90 L.Ed. 2d 137, 144-147   

(1986) [reliability of social science data 

purporting to show conviction-proneness 

of juries]; Dothard v. Rawlinson, 433 U.S. 
  

321,338 41977): (concurring opinion of 

Rehnquist, J.) [reliability of statistical 

data purporting to show job disqualifica- 

tion of males versus females by reason of 

height and weigh requirements]. The 

reliability of the quantitative evidence 

submitted by petitioner in the instant 

case is open to great doubt. 

Petitioner has failed to adequately 

respond to the issue of how a statistical 

analysis can accurately and reliably 

measure such isons as torture, prior 

criminal record, the circumstances of the 

crime, the helplessness of the victim(s), 

the life experience of the defendant, and 

unusual aggravating factors. For example, 

it is clearly inadequate to simply 

40. 

 



determine that torture was either present 

or not present because there are varying 

degrees of torture. How does one compare 

cases when the criminal records of the 

defendants are not identical? Is the 

helplessness of a young brutalized female 

victim the same as the helplessness of a 

bound and gagged police officer? How does 

one compare the age and experience of a 

22-year-old hostile, angry young male with 

the age and experience of a 35-year old, 

cold, calculating, sadistic middle-aged 

male? How do unusual aggravating factors 

enter into the equation? For example, in 

the facts behind Pulley v. Harris, supra, 
  

the defendant coolly finished eating the 

hamburgers which two teenage boys had been 

in the process of eating when the defen- 

dant kidnapped and murdered them for use 

of their car in a bank robbery. People v. 

Harris, 28 .Cal.3d4:935,:943~945:41981). 

41.  



  

How is such a factor measured? What 

measurable impact did it have on the jury? 

More importantly, how is it compared with 

other unusual but vastly different aggra- 

vating: factors in other cases?1l/ What of 

the attitude displayed by a defendant 

during trial? Evidence of this factor in 

the record may be sparse if it exists at 

all, I£ it Boes exist, how can it be 

measured in such a way that it can be 

compared with evidence of another defen- 

dant's attitude in a different case? 

The courts have accepted as valid 

statistical analyses done in jury panel 

composition and employment discrimination 

  

31. A:crocial case in point forcamici is 
the California case of People v. Jackson, 
supra, 28 Cal.3d4 at! 282-284, 303. During 
the course of one of his burglary-murders, 
Jackson raped his victim -- a 90-year old 
female -- with a wine bottle. Later, he 
described his victims to an acquaintance 
as "'two old bags [who] were a nuisance 
and . . . got what they deserved.'" 

42, 

 



cases but they have not accepted as valid 

a statistical analysis of death penalty 

cases which claimed to prove race discri- 

mination in the imposition of the death 

penalty because of these important 

distinctions. 

Ds A Generalized Statistical 

Analysis of Capital Sentencing 
Decisions in Georgia Cannot 
Explain the Reasons Why 
Petitioner Was Sentenced to 
Death 

  

  

  

  

  

Finally, the premise upon which 

petitioner's analysis is based deliber- 

ately ignores what happened in his case. 

A statistical analysis can never prove 

directly that race was a factor considered 

by the Jury in petitioner's case. : As 

petitioner's foremost expert, David C. 

Baldus, has stated in his book on the use 

of statistics to prove discrimination: 

"The primary limitation of quantita- 
tive proof in the discrimination context 
is its inability to support an inference 
about the reasons for a particular deci- 
sion, such as why a certain individual 

43.  



  

was hired or fired, or why a particular 

law was adopted. Statistics can provide 
power ful insight into general or long- 
run behavior, but as for a particular 
decision -- and many cases are concerned 
with just one decision -- at best it can 
provide a presumption by inferring from 
the general to the particular." Baldus 
and Cole, Statistical Proof of 
Discrimination, at 5 (1930). 
  

  

BE. Conclusion 
  

Amici is not impugning the role of 

statistical analyses in the law as a 

general proposition. After all, this 

Court has made it "unmistakably clear that 

'[s]tatistical analyses have served and 

will continue to serve an important role’ 

in cases in which the existence of 

discrimination is a disputed issue. 

[Citations.]" Teamsters v. United States, 
    

supra, 431'U.8. at 339.° However, even in 

the context of employment discrimination, 

where the number of significant variables 

operating is limited, this Court recog- 

nizes that "statistics are not irrefut- 

able; they come in infinite variety and, 

44, 

 



like any other kind of evidence, they 

may be rebutted. In short, their useful- 

ness depends on all of the surrounding 

facts and circumstances. See, e.g., Hester 

vs Southern R. 'Co., 497 P. 28 1374, 
  

1379-1381 (CAS)." “Id. 'ati340.°"0ur point 

is that no court has ever validated the 

use of statistical analyses for the 

purpose of determining whether jury 

verdicts of capital cases, which involve 

hundreds if not thousands of significant 

variables, are constitutionally defective 

because the jury allegedly considered race 

of victim or defendant in arriving at 

their verdict. Capital cases are qualita- 

tively different from other types of 

discrimination cases: the number of 

significant variables operating in this 

context is exponentially greater than in 

any context heretofore considered by this 

Court. Por this reason, petitioner's 

45.  



analysis should be rejected as without 

merit. 

111 

PETITIONER'S STATISTICAL 
ARGUMENT UNDERMINES THE 

RIGHT TO TRIAL BY JURY 

AND SUBSTITUTES IN ITS 

PLACE TRIAL BY STATISTI- 

CAL ANALYSIS 

Petitioner's position is an attack on 

the jury system itself. 

The right to. a jury trial is. one of 

the foremost protections of our legal 

system. "It is fundamental to the 

American scheme of justice." Duncan v. 

Louisiana, 391: U..S...145,: 150. ..{1968). Its 
  

lineage can be traced to the time of the 

Norman Conquest. Walker & Walker, The 

English Legal System, at 229 (1980). It 
  

is a fundamental tenet that a criminal 

defendant is entitled to a trial by an 

impartial jury drawn from a representative 

cross-section of the community. This 

right is guaranteed by the Sixth Amendment 

46. 

 



to the Congtitution.: Taylor iv. Louisiana, 
  

419 U.S.:522, 530 41975). This right, 

thus, guarantees a defendant a trial by 

his peers and, together with other funda- 

mental rights, ensures a fair and just 

determination of the cause. Duncan v. 

Louisiana, supra, 391 U.S. at 151-156. 
  

Although juries are generally 

presumed to follow the law given to them 

by the court (Abney v. United States, 431 
  

U.8..651, 6658(1977); Shotwell Mfg, Co. v. 
  

United States, 371 U.8.1341,7367:4(1963Y)), 
  

petitioner's statistical analysis impli- 

citly assumes this presumption to be 

incorrect or inoperative. Notwithstanding 

the absence of any jury instruction 

permitting race to be considered by the 

jury, petitioner's statistical analysis 

rests on the conclusion that juries in 

fact do consider race in determining 

whether to impose the death penalty. 

47.  



Petitioner's statistical argument 

postulates that the death penalty verdicts 

reached by presumptively lawfully consti- 

tuted. juries, acting pursuant to constitu- 

tionally valid laws, are constitutionally 

invalid because statistically it can be 

shown that persons who kill white victims 

are more likely to receive the death 

penalty than those who kill non-whites. 

This argument strikes at the heart of 

the judicial system. A jury's verdict, 

based on literally hundreds (perhaps 

thousands or millions) of :individual:bits 

of information, arrived at through the 

collective reasoning process of twelve 

separate persons, is reduced to mere 

statistical data. Petitioner would, in 

essence, substitute a statistical analysis 

for the jury's verdict. The end result 

would be the emasculation of the right to 

a jury trial. 

48. 

 



Petitioner's argument postulates that 

regardless of the observance of his 

constitutional rights in the course of a 

jury or court trial, conducted pursuant to 

constitutionally valid laws, the verdict 

is always subject to further statistical 

analysis. Petitioner would, thus, create 

a super appellate process whereby after a 

verdict has been found legally valid on 

appeal to the highest court of a state, 

the verdict may nevertheless be tested 

again by being subjected to a statistical 

analysis. There is no constitutional 

basis for such procedure and a hearing 

aimed at subjecting jury verdict data in 

capital cases to such analysis is contrary 

to our system of criminal jurisprudence. 

In his concurring opinion in Gregg v. 

Georgia, supra, 428 U.S. at 226, Justice 
  

White disposed of a similar argument: 

"Petitioner has argued, in effect, that 
no matter how effective the death 

49.  



  

penalty may be as a punishment, govern- 

ment, created and run as it must be by 
humans, is inevitably incompetent to 
administer it. This cannot be accepted 
as a proposition of constitutional law. 
Imposition of the death penalty is 
surely an awesome responsibility for any 
system of justice and those who partici- 
pate in it. Mistakes will be made and 
discriminations will occur which will be 
difficult to explain. However, one of 
society's most basic tasks is that of 
protecting the lives of its citizens and 

one of the most basic ways in which it 
achieves the task is through criminal 
laws against murder. 1 decline to 
interfere with the manner in which 
Georgia has chosen to enforce such laws 
on what is simply an assertion of lack 
of faith in the ability of the system of 
justice to operate in a fundamentally 
fair manner." 

CONCLUSION 

Petitioner's statistical analysis of 

capital cases and the conclusions he 

reaches should be rejected. He has failed 

to prove even a prima facie case of race 

discrimination in the system. A fortiori 
  

he has failed to prove race discrimination 

by the Jury in his case. In the instant 

case, petitioner has used "statistics as a 

50. 

 



drunk man uses a lamp post -- for support 

and not illumination." Keely v. 

Westinghouse Electric Corp., 404 F.Supp. 
  

373, 579 (B.D.Mo, 19758). 

Petitioner asks this Court to apply a 

standard for weighing evidence completely 

out of context. Then he asks this Court 

not just to accept but to validate a 

Statistical analysis which inherently 

fails to identify and accurately measure 

all significant variables operating in 

capital cases. Finally, he asks this 

Court to reject his individual sentence of 

death on the novel theory that it must be 

infected with race bias because a general 

statistical analysis suggests race bias in 

other cases. All of this he asks be done 

after decisions by the Georgia Supreme 

Court, various federal courts, and this 

Court, upholding the jury's sentence. 

None of these requests have merit. To 

51.  



validate any of them would be contrary to 

law previously laid down by this Court. 

To grant them all will be tantamount to 

rejecting one of the principal elements of 

our judicial system: trial by jury. 

Surely, such request must be denied as 

without any foundation in” the law. : The 

judgment of the Court of Appeals should be 

affirmed. 

Respectfully submitted, 

John K. Van de Kamp, Ira Reiner, 
Attorney General District Attorney of 
of the State of Los Angeles County 
California 

Michael D. Wellington George M. Palmer 
Supervising Deputy Deputy District 
Attorney General Attorney 

Susan Lee Frierson 

Deputy Attorney 

General 
Harry B. Sondheim 
[Counsel of Record] 
Head Deputy 
District Attorney 
Appellate Division 

9/86 

52.