Response to Motion For Required Submission of Proposals to Legislature
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Case Files, McCleskey Legal Records. Trial Proceedings Transcript Vol. 1, 1983. e0bee1c0-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c514adc2-cc26-49a1-8f80-cd9f9cd24b9d/trial-proceedings-transcript-vol-1. Accessed August 19, 2025.
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1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE NORTHERN DISTRICT OF GEORGIA
ic! ATLANTA DIVISION
4 i —-
WARREN MCCLESKEY. )
)
%® & }
PETITIONER, )
7 ) CIVIL ACTION
a )
Ht ) NO. C81 24344
WALTER D. ZANT, WARDEN, )
9 )
)
10 RESPONDENT. )
11 ---
12 VOLUME 1
13 TRIAL PROCEEDINGS
14 BEFORE THE HONORABLE J. OWEN FORRESTER, UNITED STATES DISTRICT
15 JUDGE, HELD AT ATLANTA. GEORGIA ON AUGUST 8, 1983.
: 14
17
APPEARANCES OF COUNSELS
3 18
S$ JOHN CHARLES BOGERS TIMOTHY K. FORD AND ROBERT H. STROUP,
: 19
ON BEHALF OF THE PETITIONER.
20
MARY BETH WESTMORELAND AND SUSAN V. BOLEYN,
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ON BEHALF OF THE RESPONDENT.
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(ATLANTA, FULTON COUNTY. GEORGIA: AUGUST 8,
1983, IN OPEN COURT.)
THE COURT: ALL RIGHT, THIS MORNING, WE TAKE UP A
PETITION FOR WRIT OF HABEAS CORPUS FILED BY WARREN MCCLESKEY
AGAINST HIS CUSTODY.
BASED ON PRETRIAL CONFERENCE WE HAD. I ANTICIPATE
HEARING A LOT OF STATISTICAL EVIDENCE RELATING TO PETITIONER’S
EQUAL PROTECTION ARGUMENT, AND SOME EVIDENCE DEALING WITH
INEFFECTIVE ASSISTANCE OF COUNSEL. I THINK THOSE ARE THE ONLY
TWO ISSUES WERE TAKING EVIDENCE ON. IS THAT CORRECT. MR.
BOGER?
MR. BOGER: THAT’S CORRECT. YOUR HONOR.
THE COURT: I DON’T THINK I“VE GOT MY CASES CONFUSED.
WE SAID THAT WE WOULD HAVE A LITTLE BRIEF OPENING STATEMENT. AND
YOU MIGHT BEGIN.
MR. STROUPs IF YOUR HONOR, IF I MIGHT JUST AS A
PRELIMINARY MATTER MAKE A FEW INTRODUCTIONS TO THE COURT, IF
THAT'S APPROPRIATE.
THE COURT: SURE.
MR. STROUP: HERE PARTICIPATING AT COUNSEL TABLE ON
PETITIONER’S BEHALF ARE JOHN CHARLES BOGER, WHO THE COURT IS
ALREADY FAMILIAR WITH, WHO IS NOT A MEMBER OF THIS DISTRICT
COURT, BUT IS A MEMBER OF THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AS WELL AS THE FIFTH AND ELEVENTH CIRCUIT
A —_—————————. Lp ——— r—— dr snan— sre pore —_
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3
1 COURTS OF APPEAL.
2 ALSO WITH ME AT COUNSEL TABLE IS TIM FORD. WHO IS A
3 MEMBER OF THE DISTRICT COURTS FOR THE EASTERN AND WESTERN
4 DISTRICTS OF WASHINGTON, AS WELL AS THE NINTH CIRCUIT COURT OF
3 APPEALS. YOUR HONOR.
w é THE COURT: ALL RIGHT, MR. FORD. WE“RE GLAD TO HAVE
7 You.
8 MR. FORD: THANK YOU, YOUR HONOR.
bd MR. STROUP: IF THERE IS NO OBJECTION, WE ANTICIPATE
10 MR. BOGER AND MR. FORD WILL BE PRESENTING THE BULK OF THE EXPERT
11 TESTIMONY THAT IS PRESENTED AT THIS HEARING.
12 I WOULD ALSO, IF I MIGHT, JUST INTRODUCE TO THE COURT.
13 TWO OF THE THREE LAW STUDENTS WHO ARE HERE ASSISTING WITH THE
14 PRESENTATION OF CASE.
1S THEY ARE JULIA BCAZ, AND CONNIE RICE.
16 A THIRD STUDENT WHO IS HELPING US ON THE CASE IS NOT
17 HERE THIS MORNING, SAM LAWFORD.
18 THE COURT: ALL RIGHT.
% 19 MR. STROUP: THANK YOU.
20 THE COURT: MS. WESTMORELAND?
21 MS. WESTMORELAND: YOUR HONOR, I THINK THE COURT HAS
22 MET SUSAN BOLEYN, WHO IS AT COUNSEL TABLE WITH ME. AND WILL BE
23 |ASSISTING THIS MORNING. OTHERWISE, I HAVE IN COURT DOCTOR
24 JOSEPH KATZ WHO IS SITTING IN THE BACK.
23 THE COURT: ALL RIGHT.
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MS. WESTMORELAND: AND I WOULD LIKE TO ASK THE COURT
ABOUT A FEW PRELIMINARY MATTERS BEFORE WE BEGIN WITH OPENING
STATEMENTS: IF THAT WOULD BE PERMISSIBLE AT THIS TIME.
THE COURT: THAT’S FINE.
LET ME NOTE, WITH THE MULTIPLICITY OF COUNSEL.
GENERALLY THE PRACTICE IN THIS COURT IS,» ONE LAWYER. ONE
WITNESS. IN OTHER WORDS, NO DOUBLE TEAMING OF THE WITNESSES.
GENERALLY SPEAKING, AT A GIVEN POINT, I WOULD PREFER ONE COUNSEL
TAKING THE LEAD ON THAT POINT, 80 THAT IF MR. BOGER OVERLOOKS
SOMETHING, MR. FORD, I WOULD PREFER YOU TELL HIM IN ARGUING AN
OBJECTION OR THAT SORT OF THING, RATHER THAN STANDING UP.
MR. BOGER: THAT WILL PRESENT NO PROBLEMS.
THE COURT: SAME FOR THE STATE.
WHAT ARE YOUR PROBLEMS. MS. WESTMORELAND?
MS. WESTMORELAND: JUST FOR CLARIFICATION, YOUR HONOR.
WE REALIZE THAT THE COURT PRODUCTION ORDER HAD MEANT TO HAVE MR.
MCCLESKEY HERE. AND WONDERED IF THAT WAS A CONTINUING MATTER.
AND WE DISCUSSED AT THE STATUS CONFERENCE WHETHER HE WAS GOING
TO BE HERE EVERYDAY OR NOT. AND JUST WANTED TO KNOW FOR THE
PURPOSES OF THE CORRECTIONAL OFFICERS WHETHER HE SHOULD BE
BROUGHT EVERYDAY.
THE COURT: MY VIEW, MS WESTMORELAND, WAS AS TO THE
STATISTICAL EVIDENCE, THERE WAS ABSOLUTELY NO REASON TO HAVE MR.
MCCLESKEY, HERE, AND IT IS SOMETHING OF A DIFFICULTY AND AN
EXPENSE. SO. WHAT I INDICATED THERE. AND WHAT 1 WILL STILL DUO
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IS LET HIM BE PRESENT ON THE FIRST PHASE. TO SEE THAT HIS
COUNSELLORS ARE PREPARED AND PURSUING HIS CASE, AND THEREAFTER
TO HAVE HIM BACK WHEN MATTERS RELATING TO THE HANDLING OF THE
CASE DIRECTLY. SUCH AS THE THE INEFFECTIVE ASSISTANCE OF
COUNSEL, COME UP.
$0 MR. BOGER, I1‘LL PUT YOU ON YOUR METTLE TO
ANTICIPATE WHEN THIS ISSUE IS COMING UP, AND GIVE THE STATE A
DAY’S NOTICE,» SO THEY CAN ARRANGE TO HAVE HIM BACK FOR THAT
OCCASION.
MR. BOGERI THANK YOU, YOUR HONOR,
MS. WESTMORELAND: YOUR HONOR, THAT’S FINE, AS LONG AS
WE HAVE A DAY’S NOTICE WE CAN HAVE HIM HERE THE NEXT DAY.
THE COURT: ALL RIGHT.
MS. WESTMORELAND: IF I KNOW ONE MORNING, I CAN HAVE
HIM HERE THE NEXT MORNING. THATS NOT A PROBLEM.
ALSO. THE ONLY CONCERN ON TIME IS WHEN MR. MCCLESKEY —-
THE CORRECTIONAL OFFICERS DO HAVE TO GET HIM BACK TO JACKSON AT
NIGHT, AND WE WOULD JUST LIKE TO KEEP THAT IN MIND, AS TO
RUNNING IN THE AFTERNOON, AS TO HOW LATE THE COURT INTENDS TO
RUN. BUT THAT’S JUST A CONSIDERATION THAT —-
THE COURT! WELL, I GENERALLY RUN UNTIL 5:30 IN THE
SUMMERTIME. IS THAT TOO LATE OR —-
MS. WESTMORELAND: I DON’T THINK THAT“S A PROBLEM,
YOUR HONOR. THAT SHOULD BE FINE.
THE COURT: 1°VE BEEN ON THE BENCH FOR A WEEK OR SO
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ALREADY. 1 MAY RECESS EARLY A FEW DAYS TO WORK ON SOME OTHER
MATTERS.
MS. WESTMORELAND: THAT WILL BE FINE, YOUR HONOR.
WE HAD ALSO DISCUSSED AT THE STATUS CONFERENCE THE
QUESTION OF INVOKING THE RULE AND THE WITNESSES WHO WOULD REMAIN
IN THE COURTROOM, AND I DON’T BELIEVE IT WAS EVER CLARIFIED AS
TO WHICH EXPERTS AND WHICH WITNESSES WOULD REMAIN IN THE
COURTROOM.
WE ONLY HAVE ONE EXPERT WE INTEND TO REMAIN IN THE
COURTROOM TO ASSIST. AND WOULD LIKE THE SAME RESTRICTION TO
APPLY AS WELL.
MR. BOGER: YOUR HONOR.» I THOUGHT THERE WAS
CLARIFICATION ON THAT POINT. MY CLEAR RECOLLECTION OF THE
PRETRIAL CONFERENCE, OF COURSE. YOURS WILL BE GOVERNING. WAS
THAT IT WAS AGREED AMONG THE PARTIES THAT IT WOULD BE HELPFUL TO
EXPERT TESTIMONY TO BE SURE THE EXPERTS WERE AVAILABLE IN THE
COURTROOM, IN ORDER TO HEAR THE TESTIMONY OF THEIR
COUNTER-EXPERTS IN ORDER TO AVOID THE HYPOTHETICAL QUESTIONS AND
THE LIKE.
THE COURT! THAT WAS MY RECOLLECTION. AND I DON’T SEE
ANY REASON NOT TO DO IT.
DO YOU HAVE MORE THAN ONE EXPERT?
MR. BOGER:! YES, YOUR HONOR, WE DO. AND THIS MORNING
1 BELIEVE WE HAVE TWO EXPERT WITNESSES IN THE COURTROOM. AND I
EXPECT AT A LATER POINT THIS WEEK, WE“LL HAVE A THIRD AND
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POSSIBLY A FOURTH JOINING THAT GROUP.
2 WE THINK IT’S IMPORTANT BECAUSE OF THEIR TESTIMONY
3 BEING COMPLEMENTARY. TO KNOW THE LIMITS OF ONE’S TESTIMONY IN
4 THE BEGINNING TO THE OTHERS. THEY‘VE OBVIOUSLY ALL COLLOBORATED
5 ON THE ISSUE BEFORE COURT, $0 VERACITY OR SHADING OF THE
» é TESTIMONY.
7 MOREOVER, IT’S IMPORTANT FOR ALL OF THEM TO HEAR
8 DOCTOR KATZ WHEN HE TESTIFIES IN ORDER TQ BE ABLE KNOW IF |
? THERES REBUTTAL THAT THEY CAN CONTRIBUTE.
10 SOME OF THESE MATTERS AS THE COURT MAY BE AWARE ARE
11 BEYOND OUR COMPETENCE OF COUNSEL TO FULLY APPRECIATE AND
12 UNDERSTAND.
13 M8. WESTMORELAND: YOUR HONOR, I WOULD JUST NOTE THAT
14 MY UNDERSTANDING WAS THAT ONE EXPERT. AN EXPERT WOULD BE
135 AVAILABLE TO ASSIST COUNSEL IN THE PREPARATION OF TESTIMONY. MY
146 UNDERSTANDING WAS WAS NOT NECESSARILY TO ALLOW ALL EXPERTS TO
17 HEAR EVERYONE ELSE’S TESTIMONY.
18 THE COURT: I DON’T KNOW WHAT MR. BOGER‘S EXPERTS ARE
-
0 EXPERTS AT, BUT BEYOND THE SYMMETRY OF ONE AND ONE, I DON’T KNOW
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OF ANY REASON TO EXCLUDE THEM IF THEIR TESTIMONY IS
21 COMPLEMENTARY. IF THEIR TESTIMONY IS TO BE REPETITIOUS, THAT
22 MIGHT BE ANOTHER MATTER, MR. BOGER. CAN YOU HELP US?
23 MR. BOGER: I DO NOT EXPECT THE TESTIMONY TO BE
24 REPETITIOUS. WE HAVE ONE NON-EXPERT WITNESS WHO WILL BE
23 TESTIFYING, I INTEND TO COVER THIS IN OPENING STATEMENT, ON THE
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DATA COLLECTION HERE IN GEORGIA, HE WAS A DATA COLLECTOR AT THAT
TIME, NOW A LAW STUDENT.
MIS TESTIMONY WILL NOT BE REPLICATED BY PROFESSOR
BALDUS, BUT HE WAS ON ONE END OF THE TELEPHONE IN CONVERSATIONS
ABOUT DATA. AND PROFESSOR BALDUS WAS ON THE OTHER. THAT'S THE
ONE PLACE I CAN THINK OF WHERE THERE MIGHT BE SOME OVERLAP, BUT
EVEN THERE WE’RE TALKING ABOUT ONE PERSON SUPERVISING THE DATA
COLLECTION, AND ANOTHER PERSON IN IOWA WHO IS SIMPLY CONSULTING
ON DATA QUESTIONS.
I SIMPLY DON’T SEE THIS PRESENTS A PROBLEM, AND I
DONT SEE WHAT THE BASIS OF THE STATE'S CONCERN IS.
THE COURT: MS. WESTMORELAND, I THINK WE WILL START
WITH THEM ALL PRESENT.
IF IT APPEARS TO ME THAT PETITIONER IS GOING TO TRY TO
REHABILITATE ONE WITNESS WITH ANOTHER WITNESS, I MIGHT HAVE A
DIFFERENT VIEW, BUT AT THAT POINT IN TIME. WILL BE AMENABLE TO
EXCLUDING OTHERS. BUT AS LONG AS THEY ARE COMPLEMENTARY AND NOT
REPETITIOUS SO THAT -- NOT ONLY TESTIMONY SHADING, BUT BEING
FULLY PREPARED FOR THE PURPOSES OF REHABILITATING A FORMER
WITNESS IS NOT A PROBLEM, I DON’T SEE ANY REASON TO EXCLUDE
THEM.
MS. WESTMORELAND: YES. YOUR HONOR.
MR. BOGER: YOUR HONOR, I GUESS IN LIGHT OF THAT
REMARK, 1 SHOULD MENTION THAT ONE OF OUR EXPERTS, PROFESSOR
RICHARD BERK, WHO IS NOT HERE TODAY, HE’S IN SANTA BARBARA AND
er—. | ——— —— — p—— — eet set—————, pro——— S—— —— p——— —— ——. {—
WILL BE HERE LATER IN THE WEEK, IS NOT A REHABILITATIVE WITNESS,
—
2 BUT IS A WITNESS WHO HAS EVALUATED THE REPORTS DONE BY OTHER
3 WITNESSES, AND HE WILL COME IN AND GIVE HIS PROFESSIONAL OPINION
4 ON THE QUALITY OF THOSE STUDIES. WE DON‘T CONSIDER THAT TO BE A
3 REHABILITATIVE WITNESS, AND WE ANTICIPATE HE WILL MISS
- 4 SUBSTANTIAL PORTIONS OF PROFESSOR BALDUS” TESTIMONY AND PERHAPS
7 PROFESSOR WOODWORTH’S AS WELL. BUT I DIDN“T WANT THE COURT LEFT
8 WITH THAT IMPRESSION, OR WHAT PROFESSOR BERK WILL TESTIFY
? CONCERNING.
10 MS. WESTMORELAND: YOUR HONOR, I THINK THAT’S EXACTLY
11 THE CONCERN THAT I HAVE, AND THAT TYPE OF CATEGORY. I
12 UNDERSTAND PROFESSOR BALDUS AND DOCTOR WOODWORTH HAVE WORKED
13 TOGETHER ON THIS PARTICULAR REPORT, AND PERHAPS THE COURT'S
14 |DESIGNATION AS COMPLEMENTARY WITNESSES MIGHT BE APPROPRIATE AS
1S |TO THESE TWO INDIVIDUALS. BUT SOMEONE WHO HAS NOT WORKED ON THE
16 |PREPARATION OF THIS REPORT BUT REVIEWED IT INDEPENDENTLY I THINK
17 |MIGHT BE MORE APPROPRIATELY SUBJECT TO THE RULE IN THIS CASE.
18 MR. BOGER: OF COURSE, WE CAN MAKE AND DO MAKE THE
» 19 |COUNTER ARGUMENTS IF WHAT‘S BEING ASKED IS FOR PROFESSOR BERK TO
20 |EVALUATE THE REPORT, THE REPORT CAN BE EXPLAINED IN LARGE PART
21 |BY PROFESSOR BALDUS AND WOODWORTH ON THE STAND, BUT A FULLY
22 |INFORMED KNOWLEDGE, UNDERGIRDING HIS OPINION, WOULD INCLUDE THE
23 |KNOWLEDGE OF THE REPORTS EXPLAINED.
24 I PRESUME PROFESSOR KATZ IS HERE TO LISTEN TO
25 |PROFESSOR BALDUS FOR PRECISELY THE SAME REASON, HE WANTS TO KNOW
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WHAT PROFESSOR BALDUS HAS TO SAY ABOUT HIS REPORTS, BECAUSE
EXPERTS CONSIDER NOT ONLY THE REPORTS. BUT OBSERVATIONS THAT ARE
MADE IN TESTIMONY. |
IT MAY NOT BE A PROBLEM AT ALL. I‘M NOT SURE
PROFESSOR BERK WILL BE HERE. PERHAPS WE CAN SIMPLY DEFER THIS
QUESTION UNTIL WE KNOW WHEN HES GOING TO ARRIVE, AND IF THE
STATE WANTS TO BRING IT UP WHEN PROFESSOR BERK HAS COME, THE
COURT CAN RULE ON IT AT THAT TIME. |
THE COURT: ALL RIGHT. IN THE MEANTIME. TREAT HIM AS
THOUGH HE WERE UNDER THE RULE, FOR THE PURPOSE OF NOT ALLOWING
THE OTHER EXPERTS TO DISCUSS WITH HIM THEIR TESTIMONY OR WHAT
OCCURRED IN COURT.
MR. BOGER: ALL RIGHT, YOUR HONOR.
MS. WESTMORELAND: YOUR HONOR, THE ONLY OTHER
PRELIMINARY MATTER 1 WOULD LIKE TO. I GUESS, RENEW. REALLY, IS A
REQUEST THAT WAS MADE AT THE STATUS CONFERENCE ON FRIDAY THAT IF
POSSIBLE, MR. BOGER, GIVE US A APPROXIMATELY DAY’S NOTICE BEFORE
THE CONCLUSION OF HIS CASE SO WE CAN NOTIFY OUR EXPERT IN
LOUISIANA, AND GET HIM UP HERE AT THAT TIME.
THE COURT: ALL RIGHT. PLEASE DO SO.
MR. BOGER! 1 HAVE ONE MATTER TO TAKE UP, YOUR HONOR.
SIMPLY TO REPORT TO THE COURT ABOUT THE STATUS OF THE DISCOVERY
WHICH WE TALKED ABOUT AT SOME LENGTH AT THE PRETRIAL CONFERENCE
FRIDAY AGO.
AS OF THIS MORNING, WE HAVE NOT RECEIVED A COMPLETE
r—— —— — — —.. fet" emt Steer pees. t————p So——— —————. ———. ——— —— ————. — ——
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1 REPORT FROM DOCTOR KATZ. WE DID RECEIVE BY HAND JUST NOW A
2 REPORT LESS FIFTY PAGES.
I DO NOT YET KNOW. AND I SUSPECT THE PETITIONER MAY BE
PREJUDICED BY A FAILURE STILL TO KNOW WHETHER WE’VE RECEIVED ALL
THE PRODUCTIONS FROM THE STATE WHICH WE HAD HOPED TO AND THAT
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» 6 THAT WOULD BE CLARIFIED SO THAT THE MATTER COULD PROCEED ON AN
7 UNDERSTOOD AND AGREED UPON RECORD AT THIS TIME.
8 THE COURT: DID YOU RECEIVE MY ORDER?
? MR. BOGER: WE DID: YOUR HONOR.
10 THE COURT! THEREIN I SUGGESTED TO YOU THAT IF AN
11 ERROR IN PROCESS OR IN DATA BASE WAS DISCOVERED DURING THE
12 COURSE OF THE TRIAL. I WOULD GIVE YOU AN OPPORTUNITY TO
13 SUPPLEMENT THE RECORD. THATS THE BEST I CAN DO.
14 MR. BOGER: YOUR HONOR, I WAS NOT ASKING FOR ANY
15 FURTHER RULING AT THIS TIME, JUST CALLING THE COURT’S ATTENTION,
16 WE MAY NEED TO AVAIL OURSELVES OF THAT OPPORTUNITY WHICH YOUR
17 ORDER MENTIONED.
18 THE COURT: WELL, YOUVE GOT TO MAKE IT CLEAR IN YOUR
A 19 OWN MIND AND TO ME THAT TO TRIGGER THAT RIGHT TO SUPPLEMENT THE
20 RECORD. THE STATE MUST FIRST DEMONSTRATE AN ERROR IN PROCESS OR
21 DATA BASIS.
22 MR. BOGER: 1 HOPE WE WON‘T HAVE TO REACH THAT POINT,
23 YOUR HONOR.
24 MS. WESTMORELAND: YOUR HONOR. I WOULD JUST LIKE TO
23 STATE FOR THE COURT THAT I THINK WE HAVE PROVIDED ALL CRITICISMS
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AND ERRORS IN THE PREVIOUS WRITTEN DOCUMENTS WE HAVE GIVEN.
THIS IS JUST A FINAL WRITTEN REPORT THAT IS STILL IN THE PROCESS
OF THE LAST PART OF IT BEING XEROXED WHICH WE WILL HAVE BY NOON
TODAY FOR COUNSEL AND I DON’T THINK THERES ANYTHING NEW THAT'S
GOING TO COME OUT OF THAT REPORT. THERE’S NOTHING TO MY
KNOWLEDGE THAT IS NEW IN THERE.
THE COURT: THANK YOU.
ALL RIGHT, MR. BOGER. YOU MAY SPEAK.
MR. BOGER: THANK YOU, YOUR HONOR. AND I“LL TRY TO BE
BRIEF AND YET THIS IS IMPORTANT.
THE COURT: LET ME HAVE A YELLOW PAD, MRS. PAGE.
MR. BOGER: I“D SUGGEST TO THE COURT AT THE OUTSET
THAT IT’S NOT OVERSTATED TO SAY THAT THE ISSUE BEFORE THE COURT
THIS MORNING IS ONE LITERALLY OF HISTORIC IMPORTANCE. HISTORIC
IMPORTANCE IN AT LEAST TWO SENSES.
. THE EVIDENCE THAT PETITIONER MCCLESKEY INTENDS TO
INTRODUCE TODAY AND DURING THE COMING DAYS BEARS DIRECTLY UPON
AN ISSUE. RACIAL DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM
WHICH HAS DEEP ROOTS, AS THE COURT KNOWS, IN OUR NATIONAL
HISTORY.
THERE WAS A TIME. WHEN, AS A MATTER OF LAW IN MANY
STATES, INCLUDING THE STATE OF GEORGIA, DIFFERENCES IN TREATMENT
IN THE CRIMINAL JUSTICE PROCESS. DIFFERENCES IN SENTENCING
TREATMENT WERE IN LAW BASED UPON THE RACE OF THE DEFENDANT. AND
BASED UPON THE RACE OF THE VICTIM AS WELL. THAT IF ONE KILLED A
13
1 WHITE PERSON. A DIFFERENT PENALTY WAS METED OUT IN LAW THAN IF
2 ONE KILLED A BLACK PERSON.
2 OF COURSE, THAT TIME WAS OVER A CENTURY AGO AND WITH
4 THE CIVIL WAR AND CLOSE OF THE CIVIL WAR, THE ENACTMENT OF THE
3 14TH AMENDMENT, THAT KIND OF DE JURE DISCRIMINATION CAME TO AN
% é& END.
7 AS THE COURT 1 SUSPECT WELL KNOWS THE HISTORY. THAT IN
8 THE 19TH AND EARLY PARTS OF THE 20TH CENTURY, SUBSTANTIALLY DE
9 FACTO DISCRIMINATION BASED ON RACE, CONTINUED TO PLAGUE THE
10 CRIMINAL JUSTICE SYSTEM IN JURY SELECTION, IN SENTENCING. IN
11 EXTRA-LEGAL SANCTIONS IMPOSED BASED UPON THE RACE OF THE
12 DEFENDANT OR THE RACE OF THE VICTIM.
13 ALTHOUGH AS WE PROMISED THE COURT. WE WOULD NOT DWELL
14 AT ANY LENGTH THIS MORNING ON THE LEGAL ISSUES. STILL IT SEEMS
15 TO ME PERTINENT AS A BACKGROUND TO THE EVIDENTIARY PRESENTATION
16 I WISH TO QUTLINE, TO NOTE THAT THE SUPREME COURT AT THE TIME OF
17 FURMAN VERSUS GEORGIA, SUGGESTED THAT IF IN CAPITAL SENTENCING
18 PROCEDURES RACIAL DISCRIMINATION CONTINUED TO PERSIST. THAT THAT
pe 19 MIGHT WELL CONSTITUTE AN 8TH AMENDMENT OR EQUAL PROTECTION
20 VIOLATION,
21 AND THE COURT UPHELD THE GEORGIA STATUTE WHICH IS AT
22 ISSUE HERE IN 1976 IN GREGG VERSUS GEORGIA ON THE EXPRESS
23 ASSUMPTION THAT THE RACIAL DISCRIMINATION WHICH HAD MARRED OUR
24 PAST CRIMINAL JUSTICE SYSTEM IN MANY STATES HAD BEEN ELIMINATED
25 BY THE PROCEDURES THAT HAD BEEN ENACTED BY THE GEORGIA
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LEGISLATURE IN 1973.
THAT ASSUMPTION OF THE COURT WAS AN EMPIRICALLY
UNTESTED ONE. THERE WAS NO EVIDENCE TO EITHER SUPPORT OR REFUTE
THE COURTS ASSUMPTION THAT RACIAL DISCRIMINATION HAD BEEN
ELIMINATED IN THE CAPITAL SENTENCING SYSTEM.
WE ARE HERE THIS MORNING, ON BEAHLF OF PETITIONER
MCCLESKEY TO TEST BY EMPIRICAL PROOF THAT ASSUMPTION. THAT IS.
WE WILL TEST THE QUESTION, AND PRESENT TO THE COURT THE ISSUE OF
WHETHER IN FACT THERE ARE VESTIGES OF RACIAL DISCRIMINATION THAT
STILL MARK: THAT STILL PLAY A PART IN CAPITAL SENTENCING IN THE
STATE OF GEORGIA.
NOW THE COURTS AWARE THERE HAVE BEEN A HANDFUL
ATTEMPTS SINCE 1976 TO ADDUCE SUCH EVIDENCE. BUT EACH OF THOSE
ATTEMPTS HAS BEEN HAMPERED. SERIOUSLY HAMPERED, BY A LACK OF
STANDARDS. BY A LACK OF SENSE FOR WHAT THE BURDEN OF PROOF IS.
WHAT MEASURE OF EVIDENCE WILL PERSUADE A COURT THAT RACIAL
DISCRIMINATION PLAYS AN IMPERMISSIBLE PART IN THE SENTENCING
SYSTEM.
HOWEVER AS WE DISCUSSED IN THE PRETRIAL CONFERENCE. IN
SMITH VERSUS BALKCOMB ON REHEARING IN 1981, THE ELEVENTH CIRCUIT
NOW HAS CLARIFIED THAT BURDEN OF PROOF.
AS THE COURT WELL KNOWS. THE COURT SUGGESTED THAT
STATISTICAL EVIDENCE WHICH TOOK INTO ACCOUNT CASES FOR WHICH
THERE HAD BEEN AN INDICTMENT FOR MURDER, THAT TOOK INTO ACCOUNT
THE PRESENCE OR ABSENCE OF STATUTORY AGGRAVATING AND MITIGATING
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CIRCUMSTANCES, THAT TOOK INTO ACCOUNT THE PROCESS OF CASES
THROUGH THE SYSTEM, COULD WELL SUFFICE TO DEMONSTRATE AN EQUAL
PROTECTION VIOLATION IF OTHER PLAUSIBLE OBJECTIONS, OTHER
PLAUSIBLE FACTORS WERE SHOWN NOT TO MITIGATE OR DIMINISH THAT
RACIAL IMPACT.
PETITIONER WARREN MCCLESKEY IS HERE THIS MORNING
CONFIDENT THAT THE EMPIRICAL DATA WE HAVE TO PRESENT TO THE
COURT WILL MEET THAT BURDEN OF PROOF, WILL SHOW THAT RACIAL
DISCRIMINATION IN SOME FORM, THAT RACIAL DISPARITIES, DO PERSIST
IN THE CAPITAL SENTENCING PROCESS IN THE STATE OF GEORGIA. IN
GENERAL, AND IN FULTON COUNTY AS WELL.
WE WILL OFFER IN OUR CASE IN CHIEF FIVE WITNESSES.
THE WITNESSES ARE PROFESSOR DAVID C. BALDUS, WHO IS A
DISTINGUISHED PROFESSOR OF LAW AT THE UNIVERSITY OF IOWA.
EDWARD GATES, WHOM I MENTIONED TO THE COURT EARLIER.
HOW IS NOW A LAW STUDENT AT BOSTON UNIVERSITY. WHO WAS IN 1980
AND “81 A DATA COLLECTOR. DATA CODER.
PROFESSOR GEORGE WOODWORTH OF THE UNIVERSITY OF IOWA,
PROFESSOR OF STATISTICS.
ROBERT MORROW. A GRADUATE STUDENT AT STANFORD
UNIVERSITY.
AND FINALLY, PROFESSOR RICHARD BERK. ALSO PREVIDUSLY
MENTIONED TO THE COURT WHO IS A PROFESSORS OF SOCIOLOGY AT THE
UNIVERSITY OF CALIFORNIA AT SANTA BARBARA.
PROFESSOR BALDUS, AND WOODWORTH AND OTHERS, WILL
16
TESTIFY PRINCIPALLY CONCERNING TWO STUDIES, TWO EMPIRICAL
STUDIES THAT HAVE BEEN COMPLETED IN THE STATE OF GEORGIA. THE
STUDIES OVERLAP. IN OTHER WORDS. SOME OF THE DATA FROM ONE IS
COLLECTED AND USED IN A SENSE, OR SOME OF THE CASES ARE USED FOR
BOTH STUDIES.
BUT THEY HAVE DIFFERENT PURPOSES. DIFFERENT
OBJECTIVES. AND AS WE WILL EXPLAIN TQ THE COURT, THEY COVER
DIFFERENT POINTS, ANSWERING DIFFERENT QUESTIONS.
THE FIRST OF THESE STUDIES WE“RE GOING TO CALL
THROUGHOUT THE HEARING, I HOPE. PROCEDURAL REFORM STUDY.
THE PROCEDURAL REFORM STUDY WILL LOOK AT TWO POINTS IN
THE GEORGIA CHARGING AND SENTENCING SYSTEM. TWO POINTS, THE
FIRST BEING THE DECISION MADE BY A PROSECUTOR. AFTER A MURDER
CONVICTION, ON WHETHER OR NOT TO SEEK A DEATH SENTENCE. OR
WHETHER TO FOREGO A PENALTY TRIAL AND PERMIT THE DEFENDANT TO BE
SENTENCED TO LIFE.
THE COURT: YOU SAY AFTER VERDICTS
MR. BOGER: THATS CORRECT, YOUR HONOR. IN OTHER
WORDS, THE UNIVERSE OF THE PROCEDURAL REFORM STUDY WILL CONSIST
ONLY OF PEOPLE WHO HAVE BEEN CONVICTED FOR MURDER. THE QUESTION
BECOMES DOES THE PROSECUTOR IN THAT CIRCUMSTANCE MAKE A DECISION
TO SEEK A DEATH SENTENCE VIA A PENALTY TRIAL OR TO PERMIT THE
STATE TO IMPOSE THE ONLY OTHER AUTHORIZED PENALTY FOR MURDER,
WHICH IS LIFE IMPRISONMENT.
THE SECOND DECISION POINT AS WE WILL CALL IT, THAT WE
17
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WILL COVER IN THE PROCEDURAL REFORM STUDY IS THE JURY’S
DECISION, AMONG THAT SUB-GROUP OF PEOPLE AS TO WHOM THE
PROSECUTOR DETERMINES THAT A PENALTY TRIAL IS APPROPRIATE. THE
DECISION WHETHER OR NOT TO GIVE LIFE OR DEATH, AFTER A PENALTY
TRIAL.
NOW THE UNIVERSE OF CASES WILL BE DEFINED MORE CLEARLY
BY THE EXPERTS, BUT LET ME OVERSIMPLIFY A LITTLE TO SAY THAT THE
UNIVERSE OF THE PROCEDURAL REFORM STUDY WILL BE ALL PERSONS
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CONVICTED OF MURDER BETWEEN ENACTMENT OF THE NEW STATUTE, 1973,
10 AND JUNE OF 1978.
11 IN OTHER WORDS, TO THE BEST OF PROFESSOR BALDUS” AND
12 WOODWORTH”S ABILITY THIS IS NOT A SAMPLE, THIS IS NOT A PULLING
13 OUT OF SOME OF THOSE CASES, BUT IS ALL OF THE CASES THAT FALL
14 WITHIN THOSE CONFINES, SUBJECT TQ A FEW DATA GATHERING
15 QUALIFICATIONS WHICH I“LL PRESENT TO THE COURT DURING THE
16 TESTIMONY OF THE WITNESSES. PRINCIPALLY. THAT THESE PEOPLE WERE
17 IN THE DEPARTMENT OF OFFENDER REHABILITATION SYSTEM AND
i8 THEREFORE THAT THERE WERE RECORDS AVAILABLE FOR THEM.
= 1? THE SECOND STUDY, THAT PROFESSOR WOODWORTH AND BALDUS
20 AND THE OTHERS WILL TESTIFY ABOUT, WERE GOING TO CALL THE
21 CHARGING AND SENTENCING STUDY.
22 THE CHARGING AND SENTENCING STUDY LOOKS NOT AT A
23 UNIVERSE OF CASES. ALL OF WHOSE MEMBERS ARE CHOSEN, BUT LOOKS AT
24 A SAMPLE OF A UNIVERSE. IT’S WHAT WE CALL A STRATIFIED SAMFLE,
25 THAT WILL BE EXPLAINED TO THE COURT, IF THE COURT NEEDS THAT
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EXPLANATION, I DID, DURING THE TESTIMONY OF THE WITNESSES.
BUT THE UNIVERSE FROM WHICH THAT SAMPLE FOR THE
CHARGING AND SENTENCING STUDY IS DRAWN ARE ALL PERSONS INDICTED
FOR MURDER FROM 1973 THROUGH 1979, WHO SUBSEQUENTLY ENTERED THE
PRISON SYSTEM IN ONE FORM OR ANOTHER.
NOW WHAT THE CHARGING AND SENTENCING STUDY THEREFORE
WILL DO. THAT THE PROCEDURAL REFORM STUDY DOES NOT, IS TO LOOK
BACK IN THE DECISION MAKING PROCESS, IN OTHER WORDS IT
IDENTIFIES CASES AT THE POINT OF INDICTMENT, AND FOLLOWS THOSE
CASES THROUGH. WHO AMONG THOSE INDICATED WAS PERMITTED TO PLEA
BARGAIN. WHO AMONG THOSE WHO PLEA BARGAINED, WAS PERMITTED TO
PLEA BARGAIN TO MURDER AND WHO TO VOLUNTARY MANSLAUGHTER.
4 AMONG THOSE WHO GO TO TRIAL. WHO’S CONVICTED: AMONG
THOSE CONVICTED, WHAT SENTENCES ARE RECEIVED.
NOW THE CHARGING AND SENTENCING STUDY HAS ONE OTHER
DIMENSION MISSING FROM THE PROCEDURAL REFORM STUDY, AND THAT IS,
IT LOOKS NOT SIMPLY AT MURDER CASES BUT AT VOLUNTARY
MANSLAUGHTER CASES AS WELL. OTHER HOMICIDES OF A LESSER EXTENT.
THE COURT: INDICTMENT FOR?
MR. BOGER! I BELIEVE THATS CORRECT. YOUR HONOR.
SOME CASES INDICTED FOR VOLUNTARY MANSLAUGHTER.
NOW.» AS I HAVE MENTIONED, I BELIEVE, THE RANGE OF
CASES IN THE CHARGING AND SENTENCING STUDY IS FROM “73 TO “79.
SO THESE ARE THE TWO BASIC STUDIES THAT WILL BE
DISCUSSED FOR THE COURT.
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19
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WHAT PROFESSOR BALDUS WILL DO AT THE OUTSET, THE FIRST
WITNESS, UPON THE ESTABLISHMENT OF HIS QUALIFICATIONS. IS TO
EXPLAIN HOW THESE STUDIES, ONE AFTER ANOTHER, CAME ABOUT INTO
BEING. WHAT QUESTIONS THEY WERE DESIGNED TO ANSWER OR ADDRESS.
HOW. WHAT RESEARCH DESIGN WAS CONSIDERED MOST APPROPRIATE TO
ANSWER THOSE QUESTIONS. HOW QUESTIONNAIRES WERE DEVELOPED. HOW
DATA WAS LOCATED. HOW DATA WAS COLLECTED. THE METHODS THAT
WERE USED TO CLEAN AND REFINE THE DATA. TO MAKE SURE IT WAS
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ACCURATE AND COMPLETE, AND THEN PROFESSOR BALDUS WILL TURN TO
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ANALYSIS OF THIS DATA THAT“S BEEN COLLECTED FOR THE PROCEDURAL
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REFORM STUDY AND THE CHARGING AND SENTENCING STUDY.
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TO MY MIND, THE UNIQUE QUALITY OF THE EVIDENCE WE WILL
14 PRESENT TO THE COURT THROUGH PROFESSOR BALDUS AND PROFESSOR
15 WOODWORTH AND OTHERS, IS THE RANGE OF METHODS THAT HAVE BEEN
16 EMPLOYED TO ANALYZE THIS DATA.
17 WE HAVE NOT STOPPED AT ANY ONE SINGLE WAY TO MEASURE
i8 WHETHER RACIAL DISPARITIES EXIST AND WHETHER THEY GO AWAY IF
wn 19 SOME OTHER FACTORS ARE CONTROLLED FOR.
20 THE UNIQUE FEATURE OF THIS STUDY IS THE SEARCH FOR
21 RIVAL HYPOTHESES, FOR OTHER EXPLANATIONS THAT MIGHT ANSWER THE
22 QUESTION OF WHY RACIAL DISPARITIES DO PERSIST, BECAUSE THE DATA
23 WILL SHOW THAT THERE ARE RACIAL DISPARITIES, THAT THEY DO NOT GO
24 AWAY WHEN ONE CONTROLS THE STATUTORY AGGRAVATING CIRCUMSTANCES.
23 WHEN ONE LOOKS AT THE VARIOUS STAGES OF THE PROCESS, IF ONE DOES
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THE OTHER THINGS THE FIFTH AND ELEVNTH CIRCUIT HAVE SUGGESTED
ARE APPROPRIATE. |
BUT IN TERMS OF MEASURING THOSE DISPARITIES. WE WILL
LEAD THE COURT THROUGH A NUMBER OF DIFFERENT METHODOLOGICAL
TECHNIQUES FOR SHAKING LOOSE THOSE NUMBERS. FOR SEEING IF
THERE’S SOME WAY YOU CAN GET THEM TO DISAPPEAR. AND I THINK
WHAT THE COURT WILL FIND, WHEN ONE USES SIMPLE UNADJUSTED
COMPARISONS, WHEN ONE USES MORE SOPHISTICATED CROSS TABULATION
TECHNIQUES, WHEN ONE USES STILL MORE SOPHISTICATED MULTI-VARIANT
TECHNIQUES INVOLVING DIFFERENT KINDS OF REGRESSIONS, ORDINARY
LEAST SQUARES RERESSIONS. WEIGHTED LEAST SQUARES REGRESSIONS.
LOGISTIC REGRESSIONS, THAT THE NUMBERS REMAIN FIRM. PARTICULARLY
IN THE AREA OF THE RACE OF THE VICTIM.
WE WILL ALSO WORK WITH THE DATA IN ANOTHER WAY. AND
THAT IS. WE WILL USE DIFFERENT KINDS OF MODELS. PROFESSOR
BALDUS YOU WILL SEE HAS COLLECTED DATA ON OVER FIVE HUNDRED
|FACTORS FOR EACH CASE, FIVE HUNDRED POSSIBLE ITEMS OF EVIDENCE
THAT RELATE TO THE CASE. STATUTORY AGGRAVATING FACTORS,
NON~-STATUTORY AGGRAVATING FACTORS. FACTORS THAT TRY TO MEASURE
THE STRENGTH OF THE EVIDENCE.
| AND EVEN WHEN ONE TAKES DIFFERENT CONFIGURATIONS OF
VARIABLES, SAYING, WELL MAYBE PRIOR RECORD WILL EXPLAIN IT IF WE
HAVE THE PRESENCE OR ABSENCE OF A CONTEMPORANEOUS FELONY AND THE
ABSENCE OF THESE KINDS OF MITIGATING FACTORS. WHEN ALL THESE
THINGS ARE PUT IN TOGETHER, THE NUMBERS ON RACIAL DISPARITIES
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REMAIN FIRM, AND WE HAVE WORKED ASSTIDUOUSLY TO IDENTIFY POSSIBLE
COMBINATIONS THAT WOULD MAKE THE NUMBERS GO AWAY. AND I BELIEVE
THEIR TESTIMONY IS THAT THEY WILL NOT.
THAT GIVES. I THINK, OUR EXPERTS CONFIDENCE THAT THE
NUMBERS ARE REAL.
PROFESSOR BALDUS WILL THEN. AS I SAY GO THROUGH THE
DATA, THE RESEARCH DESIGN, THE DATA COLLECTION, THE ANALYSIS,
| THE NUMBERS.
HELL ALSO FOCUS ON FULTON COUNTY. 1 REQUESTED
PROFESSOR BALDUS. BECAUSE WARREN MCCLESKEY WAS TRIED AND
CONVICTED IN FULTON COUNTY. TO TAKE A SUB-SET IF YOU WOULD. OF
HIS DATA, AND TO DO WORK TO SEE WHETHER FULTON COUNTY REFLECTS
THE GENERAL PATTERNS OF DISPARITY THAT WE FIND STATEWIDE.
WE THINK THE EVIDENCE WILL SHOW, THAT THE
RACE~OF-VICTIM DATA REMAIN STRONG. THE RACE~OF~DEFENDANT DATA
ARE SOMEWHAT WEAKER. THAT WILL BE BROUGHT OUT TO THE COURT.
THE METHODS INVOLVED IN FULTON COUNTY WILL BE THE SAME
KINDS OF METHODS USED STATEWIDE WITH ONE EXCEPTION. WE ARE ABLE
TO AND HAVE IN FULTON COUNTY CONDUCTED WHAT’S CALLED A COHORT
STUDY. WHERE YOU LOOK AT OTHER SPECIFIC CASES, NOT SIMPLY
STATISTICS. BUT INFORMATION ABOUT SPECIFIC CASES THAT ARE LIKE
WARREN MCCLESKEY’S CASE. IT’S A SUPPLEMENTAL METHOD THAT ASKS,
WELL, NOW, LETS GET PAST THE NUMBERS AND GET INTO THE REAL
FLESH AND BLOOD OF WHO WE ARE TALKING ABOUT AS INDIVIDUALS, AS
CASES AND AS CRIMES. AND THAT COHORT STUDY, ALSO WE SUBMIT.
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WILL STRONGLY SUPPORT OUR CASE.
PROFESSOR WOODWORTH, GEORGE WOODWORTH, WILL THEN
TESTIFY ABOUT THE VALIDITY OF THE STATISTICAL TECHNIQUES THAT
WERE EMPLOYED AND THE VALIDITY OF THE TECHNIQUES FOR ANALYSIS.
HE WILL ALSO ADDRESS SAMPLING GUESTIONS, HOW THE
SAMPLE WAS DRAWN, WHETHER THE SAMPLE MEETS ACCEPTED STATISTICAL
PRINCIPLES.
ED CATES: WAS PROFESSOR BALDUS’ MAN ON THE SCENE IN
GEORGIA, THE PERSON WHO ACTUALLY COLLECTED THE DATA. LEST THERE
BE A QUESTION ABOUT THE RIGOR. THE CARE. THE METHODOLOGY THAT
WAS TAKEN IN ACTUALLY GATHERING THIS DATA FROM STATE SOURCES,
EDWARD GATES WILL SPEAK TO THOSE QUESTIONS. AND WILL EXPLAIN TO
THE COURT HOW THE DATA WERE ACTUALLY COLLECTED.
ROBERT MORROW. THE FOURTH WITNESS, FROM STANFORD. WILL
PRESENT A COMPLEMENTARY STUDY. A STUDY INVOLVING A DIFFERENT
UNIVERSE: A DIFFERENT METHOD OF DATA COLLECTION THAN THAT OF THE
TWO PREVIOUS STUDIES. ONE THAT’S PERHAPS MORE FAMILIAR TQ THE
COURT BECAUSE IT BEARS SOME RESEMBLANCE TO PROFESSOR BOWERS AND
PIERCE METHODOLOGY, WHICH THE COURT WAS EXPOSED TO BRIEFLY TO IN
1979. ALL THIS IS A SUBSTANTIALLY UPDATED AND MORE
SOPHISTICATED VERSION OF WHAT THE COURT HEARD AT THAT TIME.
OUR FIFTH WITNESS. AS WE INDICATED EARLIER. WILL BE
PROFESSOR RICHARD BERK FROM THE UNIVERSITY OF CALIFORNIA AT
SANTA BARBARA. PROFESSOR BERK BRINGS A PARTICULAR: PARTICULARLY
IMPORTANT CREDENTIALS TO THE EVALUATIVE PROCESS THAT WE WOULD
HAVE HIM PERFORM FOR THE COURT. HE WAS ON A DISTINGUISHED PANEL
OF THE NATIONAL ACADEMY OF SCIENCES WHICH LOOKED INTO THE
QUESTION OF SENTENCING RESEARCH IN THE CRIMINAL JUSTICE SYSTEM.
MY UNDERSTANDING IS THEY REVIEWED OVER TWO HUNDRED DIFFERENT
SENTENCING STUDIES THAT HAD BEEN DONE OR THAT WERE UNDERWAY AND
IT PRESENTED A LENGTHY REPORT. AND PROFESSOR BERK IS THEREFORE
QUALIFIED DIRECTLY TO TALK ABOUT WHAT SENTENCING STUDIES ARE
GOOD, WHAT SENTENCING STUDIES ARE USEFUL. WHICH SENTENCING
STUDIES ARE FLAWED.
WE THINK HE WILL TESTIFY THAT PROFESSOR BALDUS” STUDY
1S COMPLETE. THAT IT IS CREDIBLE, THAT IT’S THOROUGH. AND THAT
IN HIS WORDS. I ANTICIPATE IT IS THE BEST SENTENCING STUDY THAT
ONE CAN DO.
THAT WILL BE THE BURDEN OF OUR DIRECT CASE.
WE BELIEVE THAT WHEN THAT EVIDENCE HAS BEEN PUT IN,
THE EVIDENTIARY PART OF THE COURT’S JOB MAY BE A SIMPLE ONE.
THE EVIDENCE, WE BELIEVE, IS THERE. IF THE EVIDENCE IS AS WE
SUSPECT IT WILL BE THE BURDEN FOR THE COURT WILL BE THE LEGAL
JUDGMENT. WHETHER THE 8TH AND 14TH AMENDMENTS CAN CONTINUE TO
TOLERATE A SYSTEM IN WHICH RACIAL FACTORS PLAY AN ACTUAL, A REAL
PART IN DETERMINING SENTENCING OUTCOME.
THAT IS OUR OPENING PRESENTATION. SUBJECT TO ANY
QUESTIONS FROM THE COURT.
THE COURT: THANK YOU, MR. BOGER.
MS. WESTMORELAND, DO YOU WISH TO OPEN NOW OR WAIT?
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MS. WESTMORELAND: YOUR HONOR, I‘LL MAKE A BRIEF
OPENING STATEMENT AT THIS TIME.
THE COURT: ALL RIGHT.
MS. WESTMORELAND: YOUR HONOR, THERE ARE TWO ISSUES
THAT HAVE PREVIOUSLY BEEN NOTED THAT ARE PRESENTED TO THE COURT
THIS MORNING, THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
WHICH DOESN’T REALLY REQUIRE ANY COMMENT AT THIS TIME, BECAUSE
11T 1S A VERY NARROW ISSUE TO BE PRESENTED.
THE MORE LENGTHY ISSUE, THE ISSUE OF THE STATISTICAL
CHALLENGE TO THE DEATH PENALTY ITSELF DOES REQUIRE SOME COMMENT
AT THIS TIME, PARTICULARLY IN LIGHT OF THE ASSERTIONS MADE IN
THE OPENING STATEMENT OF COUNSEL FOR THE PETITIONER.
IT HAS, THE COURT IS AWARE, OF COURSE, OF THE CHANGES
THAT HAVE BEEN TAKING PLACE AND OF THE DECISIONS THAT HAVE COME
DOWN IN RELATION TO THIS AREA. THE DECISION SPINKELLINK HAS
BEEN CHANGED SOMEWHAT BY THE DECISION SMITH VERSUS BALKCOM.
HOWEVER, IN ADAMS VERSUS WAINWRIGHT, THE ELEVENTH
CIRCUIT REAFFIRMED THE STATEMENT THAT STATISTICAL DISPARITY
ALONE IS NOT SUFFICIENT, THAT THERE MUST BE A SHOWING OF
INTENTIONAL AND PURPOSEFUL DISCRIMINATION. AND WE WOULD SUBMIT
THE EVIDENCE THAT WILL BE PRESENTED IN THIS CASE WILL SHOW THERE
IS NO SUCH INTENTIONAL OR PURPOSEFUL DISCRIMINATION, THAT THE
DATA PROVIDED BY PROFESSOR BALDUS CANNOT MAKE SUCH A SHOWING.
AND WE WILL FURTHER SHOW THERE ARE OTHER EXPLANATIONS AVAILABLE
WHICH SERVE AS AT LEAST A POSSIBLE EXPLANATION FOR ANY DISPARITY
THAT MAY VERY WELL EXIST.
WE SUBMIT THIS CASE IS NOT ONE WHICH CAN BE ANALOGIZED
OR ANALYZED TO AN EMPLOYMENT DISCRIMINATION TYPE OF CONTEXT, BUT
HAS TO BE CONSIDERED AS A PARTICULAR CASE THAT IT IS. WHICH
ACTUALLY, NO MATTER HOW YOU CLASSIFY IT. EQUAL PROTECTION. 8TH
AMENDMENT OR WHATEVER. IT STILL GETS DOWN A CASE OF SELECTIVE
PROSECUTION IS ACTUALLY THE MAIN THRUST OF THE ISSUE. AND AS
SUCH WE WOULD STILL POINT OUT TO THE COURT THAT INTENT AND
PURPOSEFUL DISCRIMINATION MUST BE SHOWN.
IN THIS REGARD. IT IS IMPERATIVE TO FOCUS NOT JUST ON
THE STATE-WIDE DATA, OR EVEN IF THE STATE-WIDE DATA IS
APPROPRIATE AT ALL, BUT TO FOCUS ON FULTON COUNTY, AND TO SEE
| WHAT HAS BEEN DONE IN FULTON COUNTY, NOT ONLY IN NUMBERS THAT
ARE SHOWN, BUT WHAT ACTIONS HAVE BEEN TAKEN BY THE PROSECUTORS.
IN THIS SAME REGARD, WE SUBMIT TO THE COURT THAT WE
WOULD SHOW THAT FULTON COUNTY HAS EVOLVED OVER THE YEARS. IT HAS
BEEN A GROWING AND CHANGING COMMUNITY IN WHICH BLACKS TAKE AN
ACTIVE PARTICIPATION IN POLITICS AND OTHER AREAS. AND THAT YOU
CANNOT ASSUME THAT DATA THAT APPLIES TO OTHER COUNTIES IN THE
STATE WOULD NECESSARILY BE SIGNIFICANT IN A SETTING OF FULTON
COUNTY, BECAUSE IT IS SUCH A DIFFERENT POPULATION, AND THAT THIS
FACTOR MUST BE CONSIDERED IN MAKING AN ANALYSIS OF THE VARIOUS
DATA THAT WILL BE PRESENTED.
WE EXPECT TO SHOW BY OUR EXPERT WITNESSES THAT THE
DATA BASE UTILIZED IN THE STUDY OF PROFESSOR BALDUS IS NOT
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TOTALLY RELIABLE. IT HAS INACCURACIES, THERE MAY HAVE BEEN AN
ATTEMPT TO GATHER DATA ON OVER FIVE HUNDRED DIFFERENT VARIABLES,
BUT WE WOULD SUBMIT AND SHOW BY OUR EXPERTS THAT THE DATA WAS
NOT ACTUALLY GATHERED ON THIS MANY FACTORS. THERE ARE MANY
INCOMPLETE VARIABLES SHOWN, THERE ARE INCONSISTENCIES IN THAT
THE DATA BASE ITSELF IS NOT SUFFICIENTLY RELIABLE TO JUSTIFY ANY
FINDINGS THAT THE PETITIONER WOULD OF THIS COURT MAKE.
ME’D ALSO FURTHER SUBMIT THAT EVEN IF THE DATA BASE IS
CONCLUDED TO BE RELIABLE, THAT THE ASSERTIONS MADE ARE NOT
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SUPPORTED BY THE DATA GIVEN.
FIRS RST )OF ALL» Ine METHODOLOGY USED IN LIGHT OF THE
ST
DATA BASE IS NOT ADEQUATE. IT’S NOT AN ACCURATE OR
Ba at 2 a WSSSE i a
STATISTICALLY, ACCEPTED METHODOLOGY WHICH WE WILL SHOW BY OUR
EXPERTS, IN LIGHT OF THE UNDERLYING DATA BASE THAT IS AVAILABLE.
SECONDL NDLY3 OTHER ANALYSES SHOW THAT THE CONCLUSION THAT
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WERE
IS REACHED IS NOT THE SAME CONCLUSION THAT PROFESSOR BALDUS HAS
MADE IN HIS REPORT. THE MAIN CONCLUSION THAT CAN BE DRAWN WHICH
WE HOPE TO SHOW BY OUR EXPERTS, IS THAT WHEN IT COMES DOWN TO
THE FINAL ANALYSIS, WHITE VICTIM CASES HAVE A HIGHER PRESENCE OF
AGGRAVATING AND FEWER MITIGATING FACTORS THAN DO BLACK VICTIM
CASES, WHICH WOULD SERVE AS A SUFFICIENT EXPLANATION FOR ANY
DISPARITY THAT MAY EXIST. AND THAT IN IN REGARD, THERE HAS BEEN
NO SUFFICIENT DISPARITY SHOWN, NO SUFFICIENT STATISTICAL IMPACT
SHOWN TO JUSTIFY ANY INFERENCE OF OUR PURPOSEFUL DISCRIMINATION.
AND IT MAY VERY WELL BE THAT THE EXPERTS MAY TESTIFY
27
Po
t THAT THIS IS THE BEST STUDY THAT HAS BEEN DONE, BUT JUST BECAUSE
2 IT MAY BE THE BEST STUDY THAT HAS BEEN DONE AT THIS TIME DOES
3 |NOT MEAN THAT IT IS THE BEST STUDY THAT EVER COULD BE OR THAT IT
4 |SHOWS WHAT IT PURPORTS TO SHOW.
E AND WE WOULD SUBMIT OUR EXPERTS WILL CONCLUDE AND WILL
Re 4 |SHOW TO THE COURT THAT THE STUDY DOES NOT SHOW ANY 14TH
7 | AMENDMENT VIOLATIONS, ANY STH AMENDMENT VIOLATIONS, ANY CLAIMS
8 |OF DISCRIMINATION OR SELECTIVE PROSECUTION.
9 THANK YOU, YOUR HONOR.
10 THE COURT! ALL RIGHT. MR. BOGER, CALL YOUR FIRST
11 WITNESS.
12 MR. BOGER: YOUR HONOR, WE CALL PROFESSOR DAVID
13 |BALDUS.
14 THE COURT: COME UP, PROFESSOR, TO BE SWORN.
15 MS. WESTMORELAND: YOUR HONOR, MIGHT 1 MAKE A REQUEST
16 |OF THE COURT AT THIS TIME? IT WOULD ASSIST ME OREATLY IF DOCTOR
17 |KATZ COULD SIT AT COUNSEL TABLE WITH ME, BUT I WOULD LIKE
18 |PERMISSION OF THE COURT BEFORE I ASK HIM TO DO SO.
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J THE COURT: FINE.
MS. WESTMORELAND: THANK YOU. YOUR HONOR. 20
21 MR. BOGER: YOUR HONOR, BEFORE PROFESSOR BALDUS BEGINS
22 I WOULD LIKE TO INDICATE THE MANNER IN WHICH WE HOPE TO PRESENT
23 OUR DOCUMENTARY EVIDENCE TO THE COURT DURING THIS HEARING.
24 AS YOUVE HEARD ALREADY FROM THE OPENING STATEMENTS,
23 THE EVIDENCE TO BE OFFERED IS COMPLEX. TABLES. FIGURES, ENORMOUS
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VOLUME OF PAPER.
WHAT WE HAD HOPED TQ DO TO SIMPLIFY THE PRESENTATION
OF THIS EVIDENCE TO THE COURT IS TO PRESENT IT BY WAY OF
EVIDENCE BOOKS. IN OTHER WORDS. WE HAVE ORGANIZED FOR EACH
EXPERT, EVIDENCE BOOKS SUCH AS THE ONE I HAVE BEFORE ME, SUCH AS
THE ONE 1 WOULD PROPOSE TO GIVE ONE TO THE CLERK, ONE TO THE
COURT, ONE TO THE STATE.
THOSE BOOKS WOULD CONTAIN IN THEM THE EXHIBITS WHICH
WE WOULD HOPE TO INTRODUCE IN PROFESSOR BALDUS” TESTIMONY. THEY
ARE PREMARKED FOR THE CONVENIENCE OF THE COURT IN A FASHION
WHICH I WILL DESCRIBE AT THIS MOMENT.
WE HAVE FOR PROFESSOR BALDUS MARKED. FOR EXAMPLE, HIS
VITA. AS DB-1. NEXT DOCUMENT IS DB-2. ALL FOR IDENTIFICATION.
AND THAT WILL ASSIST, WE THINK, THE COURT AND THE
PARTIES AS WE MOVE THROUGH THE EVIDENCE. SO THAT PIECES OF PAPER
ARE NOT SCATTERED ALL OVER THE TABLE AND THINGS ARE NOT FLYING
AROUND THROUGH THE COURTROOM AS WE PRESENT VARIOUS ITEMS OF
EVIDENCE.
THE STATE. OF COURSE, REMAINS FREE IN THIS SYSTEM TO
OBJECT TO ANY OR ALL OF THESE ITEMS, AND THE COURT CAN RULE ON
THEM SERIATIM OR AS A WHOLE.
BUT WE THINK THE USE OF THIS KIND OF BOOK WILL ASSIST
THE COURT IN KEEPING AN ORDERLY ACCOUNT OF THE EXHIBITS THAT WE
HAVE. AND I CAN BRING COPIES UP FOR YOUR HONOR‘S PERUSAL IF YOU
HAVE ANY FURTHER QUESTIONS.
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THE COURT: HAVE YOU SEEN THE BOOKS, MS. WESTMORELAND?
MS. WESTMORELAND: NO.» YOUR HONOR. I HAVE NOT.
THE COURT: LET HER SEE IT AT FIRST.
MR. BOGER: FINE. YOUR HONOR,
THE COURT: YOU HAVEN’T SEEN IT AT ALL?
MS. WESTMORELAND: NO. YOUR HONOR.
THE COURT: 1 HATE TO TAKE A MORNING RECESS SO EARLY,
BUT BEFORE I LET YOU FALL INTO ACCEPT ING OR REJECTING SOMETHING,
I THINK ILL GIVE YOU A FEW MINUTES TO DIGEST THAT SIX INCHES OF
PAPER.
ALL RIGHT. LET’S BE IN RECESS UNTIL 10130. I MAY
TAKE ANOTHER BRIEF MORNING RECESS, BUT IF YOU HAVE ANY DOCUMENTS
YOU WANT TO SHOW HER THAT ARE GOING TO RELATE TO TODAY. LETS
THEM ON THE TABLE NOW, MR. BOGER.
MR. BOGER: WELL, YOUR HONOR, THIS IS FIRST VOLUME OF
PROFESSOR BALDUS” WITNESS BOOK. WE WILL AT SOME POINT MOVE INTO
THE SECOND VOLUME OF HIS WITNESS BOOK.
THE COURT: SHOW HER BOTH OF THEM BECAUSE WERE
TALKING ABOUT PROCESS RIGHT NOW.
MR. BOGER: ALL RIGHT. I THINK IVE GOT A COPY OF THE
SECOND VOLUME.
THE COURT: ALL RIGHT, WE‘LL BE IN RECESS. UNTIL ABOUT
10130.
(RECESS TAKEN.)
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THE COURT: ALL RIGHT. MS. WESTMORELAND, WHAT ARE
YOUR COMMENTS ON MR. BOGER’S PROPOSITION?
MS. WESTMORELAND: YOUR HONOR. I HAVE TAKEN A MOMENT
| TO BRIEFLY FLIP THROUGH THESE TWO RATHER VOLUMINOUS VOLUMES. I
NOTE THERE ARE MANY THINGS IN HERE THAT 1 HAVE NOT SEEN BEFORE,
SEVERAL ARTICLES AND THINGS, AND I UNDERSTAND THE NEED FOR
SIMPLICITY AND THE NEED FOR EXPEDITING THINGS. AND 1 APPRECIATE
MR. BOGER’S CONCERN ON THAT PART. | |
MY CONCERN IS, I DO NOT WANT TO WAIVE ANY OBJECTION TO
EACH INDIVIDUAL PIECE OF PAPER THAT IS IN HERE, BECAUSE I°M
ASSUMING THAT EACH ONE IS GOING TO BE OFFERED, IF IT IS OFFERED
AT AN APPROPRIATE TIME AND I WILL HAVE A CHANCE TO MAKE AN
OBJECTION AT THAT TIME. AND I DON’T KNOW HOW MR. BOGER PLANS TO
PRESENT THE SEPARATE DOCUMENTS INTO EVIDENCE, AT THAT TIME, |
WHETHER HE INTENDS TO JUST PUT THE WHOLE NOTEBOCK IN OR WHAT HE
INTENDS TO DO. BUT I DON’T WANT TO WAIVE ANY OBJECTIONS THAT I
MIGHT HAVE.
I WOULD ALSO LIKE THE OPPORTUNITY TO REVIEW THE
MATERIAL THAT IS IN THE. BOTH NOTEBOOKS TO EXPEDITE, I GUESS
THIS EVENING. TO EXPEIDTE OUR PROCEDURE TOMORROW SO I DON’T HAVE
TO TAKE THE TIME A3 WE GET TO EACH SPECIFIC PIECE OF INFORMATION
TO SIT DOWN AND REVIEW IT THOROUGHLY. BECAUSE IT IS QUITE
LENGTHY AND THERE ARE QUITE A FEW THINGS. LIKE 1 SAID, THAT I
HAVE NOT SEEN BEFORE.
MR. BOGER: YOUR HONOR, I HAVE REALLY HEARD NO
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OBJECTION TO THE USE OF THE NOTEBOOKS. THE LATTER REQUEST
SOUNDS AS IF THE STATE WOULD LIKE TO HAVE ALL OF THE ITEMS THAT
WE’RE GOING TO PRODUCE AS EXHIBITS IN ORDER FOR PREPARATION
PRIOR TO THEIR USE. THE FACT THAT WE‘RE USING NOTEBOOKS DOES
MEAN THAT IF WE HAVE ONE AND WE GIVE IT TO THE STATE. AT LEAST
THAT PORTION OF OUR CASE WILL BE PREVIEWED FOR WHATEVER PURPOSES
THE STATE CAN MAKE USE OF IT FOR CROSS-EXAMINATION, AND WE
RECOGNIZE THATS A DEFICIENCY OF THIS METHOD. ONE WHICH GIVES
THE STATE A CERTAIN ADVANTAGE. BUT WE THINK THAT CLARITY MAKES
IT WORTHWILE.
I DONT SEE THE LOGIC OF SAYING IF WE’RE ONLY THROUGH
BOOK ONE TODAY, WERE GOING TO TAKE BOOK TWO HOME TONIGHT.
UNLESS THE STATE WILL RECIPROCATE AND GIVE US A LIST AND COPIES
OF ALL THE EXHIBITS THEY EVENTUALLY INTEND TO INTRODUCE THROUGH
PROFESSOR KATZ.
MS. WESTMORELAND: YOUR HONOR, MY ONLY CONCERN IS TO
EXPEDITE THE SITUATION WHEN WE‘RE GOING THROUGH THE PROCEEDING
ON THE NEXT DAY. IF I HAVEN’T SEEN A DOCUMENT. ILL HAVE TO
TAKE TIME TO REVIEW IT AT THE TIME. IT WILL TAKE UP COURT TIME
DURING THE DAY. I“M NOT TRYING TO GET THE JUMP ON MR. BOGER,
AND HAVE AN UNFAIR ADVANTAGE IN ANYWAY. OBVIOUSLY I CAN'T
EITHER OBJECT TO ADMISSION OF A PARTICULAR DOCUMENT OR AGREE TO
ITS ADMISSION WITHOUT HAVING HAD THE OPPORTUNITY TO REVIEW IT ON
MY OWN. AND THAT WAS MY ONLY CONCERN IN THAT REGARD. WAS TO SAVE
THE COURT TIME IN LATER PROCEDURES, NOT TO GET AN UNFAIR
32
ADVANTAGE IN ANYWAY.
THE COURT: ALL RIGHT, IF 1 UNDERSTAND CORRECTLY. YOU
HAVE NO OBJECTION TO THE PROCESS. AND SO THAT WILL BE ALLOWED.
I WILL, I MUST ADMIT TO HAVING ASSUMED THAT BY NOW.
YOU ALL WOULD HAVE SEEN MOST IF NOT ALL OF EACH OTHERS
DOCUMENTS. IF THAT ASSUMPTION IS INCORRECT. THAT IS MY INTENT,
AND I EXPECT THEM TO BE SHARED AS EXPEDITIOUSLY AS POSSIBLE.
BOTH OF THEM. SO THAT WE DONT HAVE TO TAKE UP AN AWFUL LOT OF
HEARING TIME FIGHTING OVER THE ADMISSIBILITY OF EACH AND EVERY
DOCUMENT UNTIL IT BECOMES OBVIOUS.
WITH THOSE. LET“S GO AHEAD AND USE THE BOOKS, AND MR.
BOGER, WE’LL UNDERSTAND THAT WHAT‘S IN THE BOOK IS NOT IN
EVIDENCE UNTIL IT“S MOVED AND ADMITTED OR STIPULATED.
MR. BOGER: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
MS. WESTMORELAND: YOUR HONOR, MY UNDERSTANDING IS
THAT I NOW HAVE BOOK ONE. MR. BOGER. I THINK, INDICATED THIS
MAY BE HIS ONLY COPY OF BOOK TWO HERE PRESENT. AND I DIDN‘T
KNOW WHAT THE COURT’S RULING WAS AS TO THE PRESENTING OF THAT
BOOK TO US AT THIS TIME OR NOT.
THE COURT: IT IS MY DESIRE AND INTENT THAT YOU BOTH
EXCHANGE ALL DOCUMENTARY AND VISIBLE EVIDENCE AS SOON AS YOU CAN
HUMANLY DO SO. I DON’T WANT TO GET INTO WHAT THAT MEANS ANYMORE
THAN IS NECESSARY. YOU‘RE BRIGHT, AND YOU OUGHT TO BE ABLE TO
UNDERSTAND WHAT I MEAN. I“M SURE.
BALDUS - DIRECT
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ALL RIGHT. GIVE ME A COPY, AND GIVE THE CLERK A COPY.
2 |AND LET‘S MOVE ALONG.
3 MR. BOGER: AS YOUR HONOR WILL OBSERVE, WE HAVE A
4 |TABLE OF CONTENTS AT THE BEGINNING, BECAUSE THERE ARE A LOT OF
Ss |DOCUMENTS. AND WE JUST WANTED THE COURT TO BE ABLE TO FLIP TO
% & |THE ONES THAT WERE RELEVANT MORE QUICKLY, AND THAT’S THE PURPOSE
7 |OF THAT TABLE. IT WILL NOT BE OFFERED INTO EVIDENCE. :
f THE COURT: ALL RIGHT. GO AHEAD.
9 THE CLERK: IF YOU WILL RAISE YOUR RIGHT HAND.
10 |8IR, DO YOU SOLEMNLY SWEAR THE EVIDENCE YOU SHALL GIVE
11 AT THE TRIAL NOW BEFORE THIS COURT SHALL BE THE TRUTH. THE
12 |WHOLE TRUTH. AND NOTHING BUT THE TRUTH, SO HELP YOU GOD?
13 THE WITNESS: I DO.
14 THE CLERK: HAVE A SEAT ON THE WITNESS STAND.
15 |SIR, AND STATE YOUR FULL NAME FOR THE RECORD.
16 THE WITNESS: DAVID C. BALDUS.
17 ---
18 DAVID C. BALDUS.
Par
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0 CALLED AS A WITNESS ON BEHALF OF THE PETITIONER. BEING FIRST
20 DULY SWORN, TESTIFIED AS FOLLOWS:
21 DIRECT EXAMINATION
22 BY MR. BOGER?
<3 @. PROFESSOR BALDUS, WOULD YOU PLEASE STATE YOUR NAME AND
24 ADDRESS FOR THE RECORD?
25 A. DAVID C. BALDUS. 34 7TH AVENUE NORTH, IOWA CITY, IOWA.
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BALDUS - DIRECT
S2240.
Q. PROFESSOR BALDUS., WHAT IS YOUR OCCUPATION?
A. I’M A PROFESSOR OF LAW AT THE UNIVERSITY OF IOWA COLLEGE OF
LAW.
MR. BOGER: YOUR HONOR, I“M GOING TO POSE SOME
QUESTIONS TO PROFESSOR BALDUS TO QUALIFY HIM AS AN EXPERT IN THE
EMPIRICAL STUDY OF THE LEGAL SYSTEM. WITH PARTICULAR EXPERTISE
ON METHODS AND ANALYSIS OF PROOF OF DISCRIMINATION. IN A LEGAL
CONTEXT.
BY MR. BOGER!
R. PROFESSOR BALDUS, LET ME DIRECT YOUR ATTENTION TO YOUR COPY
OF THE WITNESS BOOK, TO THE ITEM MARKED AS DB-1.
CAN YOU IDENTIFY THAT DOCUMENT?
A. YES. THAT IS MY RESUME.
@. AND IS THAT A CURRENT RESUME FOR YOQU?
A. YES.
@. DOES IT ACCURATELY REFLECT YOUR EDUCATIONAL BACKGROUND, YOUR
| PUBLICATIONS AND YOUR PROFESSIONAL ACCOMPLISHMENTS?
A. YES.
MR. BOGER: YOUR HONOR. I OFFER DB-1 INTO EVIDENCE.
MS. WESTMORELAND: YOUR HONOR, I DON’T THINK I HAVE
ANY OBJECTIONS TO THIS PARTICULAR DOCUMENT, I WILL LIKE THE
OPPORTUNITY, OF COURSE, TO EXAMINE PROFESSOR BALDUS BEFORE THE
COURT DETERMINES WHETHER OR NOT HE IS AN EXPERT IN RELATION TO
CERTAIN ITEMS THAT MAY OR MAY NOT BE ON THE RESUME.
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BALDUS - DIRECT
THE COURT: OF COURSE.
THERE BEING NO OBJECTION, DB-1 WILL BE ADMITTED.
MR. BOGER: THANK YOU), YOUR HONOR.
BY MR. BOGER?
Q. PROFESSOR BALDUS. I WANT TO ASK YOU A FEW QUESTIONS ABOUT
YOUR RESUME. WE CAN CLARIFY FOR THE COURT YOUR BACKGROUND AND
YOUR EXPERTISE IN MORE DETAIL THAN THE BRIEF STATEMENT HERE
DOES.
WHAT WAS YOUR MAJOR FIELD OF STUDY AT DARTMOUTH
COLLEGE.
A. GOVERNMENT.
@. AND DID YOU TAKE ANY SOCIAL SCIENCE COURSES. ANY COURSES OF
THAT SORT WHICH MIGHT BE RELEVANT TO TESTIMONY THAT YOU WOULD
GIVE TODAY?
A. YES. 1 MAJORED IN GOVERNMENT BUT TOOK MANY COURSES IN OTHER
FIELDS, PSYCHOLOGY, ECONOMICS, SOCIOLOGY IN PARTICULAR.
Q. DID YOU TAKE ANY COURSES IN MATHEMATICS OR RELATED AREAS?
A. YES. I TOOK COURSES IN TRIGONOMETRY. IN CALCULUS AND I HAD A
COURSE IN SYMBOLIC LOGIC FROM JOHN KIMINEY., WHO IS A LEADING
MATHEMATICIAN.
QB. WHAT IS THE RELEVANCE OF SYMBOLIC LOGIC FOR THE KIND OF
EVIDENCE YOURE PRESENTING TO THE COURT?
A. WELL. A GREAT DEAL OF THE WORK INVOLVED IN THE CODING OF
VARIABLES AND THE RECODING OF VARIABLES IN A PROJECT LIKE THIS
INVOLVES THE USE OF LOGICAL OPERATIONS.
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BALDUS - DIRECT
@. AND IS A SYMBOLIC LOGIC COURSE RELATED TQ THAT?
A. YES, IT GIVES ONE AN IDEA OF HOW THE LOGIC OF CONSTRUCTS FIT
TOGETHER WHICH IS RELEVANT T0 WHAT WE DID IN THIS PROJECT.
@. DID YOU HAVE ANY COURSES, WHILE AN UNDERGRADUATE AT
DARTMOUTH IN AREAS RELATED TO CRIMINAL LAW OR CRIMINAL JUSTICE?
A. THE GOVERNMENT MAJOR COVERS THE AREA OF AMERICAN LEGAL
INSTITUTIONS WHICH EMBRACE THE JUDICIAL SYSTEM. AND I HAD A
COURSE IN CONSTITUTIONAL LAW WHICH WAS TAUGHT BY ROBERT CARR,
WHO WAS A LEADING CONSTITUTIONAL LAW SCHOLAR AT THAT TIME.
@. AFTER YOU RECEIVED YOUR BACHELOR OF ARTS DEGREE FROM
DARTMOUTH, WHAT DID YOU DO?
A. 1 SERVED IN THE UNITED STATES ARMY FOR TWO YEARS.
@. WHAT WAS THE AREA OF SPECIALIZATION. IF YOU WERE, IN THE
ARMY?
A. MY AREA OF SPECIALIZATION, AT LEAST IN TERMS OF THE TRAINING
I DID. WAS IN CRYPTANALYSIS. CRYPTANALYSIS IS THE SCIENCE OF
DECIPHERING ENCODED MESSAGES BACK TO PLAIN TEXT, TO THE ORIGINAL
TEXT FROM WHICH THEY WERE ORIGINALLY ENCIPHERED.
AND I HAD AN INTENSIVE COURSE IN THAT SUBJECT FOR FIVE
MONTHS AT FOR DEVENS BEFORE 1 WAS SHIPPED TO KOREA, WHERE I
SERVED THE BALANCE OF MY TWO-YEAR TERM. ACTUALLY IT WAS A
21-MONTH TERM IN THE MILITARY.
@. AT THE COMPLETION OF YOUR MILITARY SERVICE. WHAT DID YOU DO
THEN?
A. I ENROLLED IN GRADUATE STUDIES AT THE UNIVERSITY OF
37
BALDUS = DIRECT
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PITTSBURG, AND THERE I OBTAINED A MASTERS DEGREE IN POLITICAL
2 SCIENCE. THAT WAS IN 1760.
3 A. WHAT WAS YOUR MAJOR AREA OF INTEREST WHILE A MASTERS OF ARTS
4 CANDIDATE?
3 A. THE PROGRAM I WAS IN WAS POLITICAL SCIENCE, AND MY PRINCIPAL
é AREA OF INTEREST AT THAT TIME WAS IN INTERNATIONAL RELATIONS.
7 @. DID YOU DO ANY WORK THAT INVOLVED EMPIRICAL RESEARCH OR
8 EMPIRICAL STUDY?
? A. 1 TOOK A SEMINAR ON THE CONDUCT OF RESEARCH. IN THE AREA OF
10 POLITICAL SCIENCE, AND I WAS PLANNING TO WRITE A THESIS, AND
11 CONCENTRATED MY ATTENTIONS ON HOW ONE MIGHT DO EMPIRICAL WORK IN
12 THE AREA THAT I CONTEMPLATED DOING MY THESIS. AND IN THE
13 CONTEXT OF THAT SEMINAR WE STUDIED THE STATE OF THE ART, $0 TO
14 SPEAK, IN TERMS OF THE VARIABLE PROCEDURES FOR THE CONDUCT OF
15 EMPIRICAL RESEARCH.
16 AT THAT TIME, QUANTITATIVE ANALYSIS. THE TYPE THAT WE
17 HAVE IN USE TODAY WIDESPREAD IN THE SOCIAL SCIENCES, WAS IN ITS
18 INFANCY, AND MY PURPOSE WAS TO EXPLORE THE POTENTIAL FOR THOSE
wv 19 SORTS OF APPROACHES TO THE EXTENT THAT THEY HAD BEEN DEVELOPED
20 AT THAT TIME. FOR THE PURPOSES OF EVALUATING THE RESEARCH
21 PROJECT THAT I WAS UNDERTAKING FOR MY MASTERS DEGREE THESIS.
22 Q. DID YOUR WORK RESULT IN ANY KIND OF WRITTEN OUTPUT?
23 A. YES, I DID AN EXTENSIVE BOOK-LENGTH STUDY OF AMERICAN
24 FOREIGN POLICY IN NORTH AFRICA AT THE TIME.
25 QR. WAS THAT PUBLISHED?
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A. NO» IT WAS NOT PUBLISHED.
@. ALL RIGHT. AFTER COMPLETION OF YOUR MASTERS DEGREE IN
POLITICAL SCIENCE AT PITTSBURG. WHAT DID YOU THEN Do?
A. 1 WAS EMPLOYED FOR NINE MONTHS IN THE BUDGET BUREAU IN THE
STATE GOVERNMENT OF THE COMMONWEALTH OF PENNSYLVANIA.
I WAS HIRED TO, TO COME INTO THE BUDGET BUREAU AND DO
AN ANALYSIS OF HOW THAT SYSTEM OPERATED, AND TO FIND OUT WHAT
THE ISSUES WERE, AND HOW THAT PROCESS WORKED, HOW IT WAS
SUPPOSED TO WORK AND HOW IT ACTUALLY DID WORK. I WAS HIRED TO
DO AN EVALUATION OF THAT SYSTEM.
@. AND DOES THAT WORK RESPONSIBILITY: THAT EMPLOYMENT
RESPONSIBILITY, HAVE ANY BEARING ON YOUR QUALIFICATIONS TODAY?
A. IN THE SENSE THAT IT WAS ONE OF THE FIRST EFFORTS THAT I
UNDERTOOK TO DO AN EVALUATIVE RESEARCH PROJECT, WHERE I HAD TO
GO OUT AND COLLECT INFORMATION AND EVALUATE IT AND INTEGRATE IT
IN TERMS OF UNDERSTANDING HOW THAT SYSTEM OPERATED.
@. WAS THAT A GOVERNMENTAL SYSTEM YOU“RE TALKING ABOUT?
A. YES, IT WAS. IT WAS THE BUDGET BUREAU, THE WHOLE BUDGETING
PROCESS OF THE STATE OF PENNSYLVANIA.
QR. WAS THERE ANY WRITTEN OUTPUT?
A. YES. THE PRODUCT WAS A BRIEF PAPER OF SEVENTY OR EIGHTY
PACES, WHICH WAS USED FOR INFORMATIONAL PURPOSES FOR THE PEOPLE
IN THE STATE WHO WORKED IN THE BUDGETARY PROCESS TO TRY AND
IMPROVE THEIR OVERVIEW OF THE SYSTEM. MANY PEOPLE WERE WORKING
IN THE SYSTEM AND DIDN‘T REALIZE HOW IT ALL FIT TOGETHER AND MY
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BALDUS ~ DIRECT
JOB WAS TO GIVE THEM THAT SORT OF OVERVIEW UNDERSTANDING.
Q. HOW LONG DID YOU SAY THAT JOB TOOK?
A. NINE MONTHS.
Q. AND AFTER THAT, WHAT DID YOU THEN DO?
A. I ENROLLED IN GRADUATE STUDIES AT COLUMIBA UNIVERSITY LAW
SCHOOL IN THE FALL OF 1961.
®. WHAT DEGREE WERE YOU SEEKING AT THAT TIME?
A. AND L.L.B. DEGREE.
@. DID YOU TAKE ANY COURSES IN CRIMINAL LAW OR CRIMINAL
PROCEDURE WHILE A LAW STUDENT AT COLUMBIA? >
A. YES, I TOOK A COURSE IN CRIMINAL LAW FROM HERBERT WEXLER
WHEN I WAS AT COLUMBIA LAW SCHOOL. THAT WAS AT THE TIME WHEN
WEXLER WAS JUST COMPLETING HIS WORK ON THE MODEL PENAL CODE.
@. WHAT, DID HIS COURSE INCLUDE ANY WORK ON HOMICIDE OR THE
MODEL PENAL CODE ITSELF?
A. YES, IT WAS A BASIC COURSE ON CRIMINAL LAW AND COVERED THE
ELEMENTS OF THE BASIC CRIMES, BUT IT HAD A PARTICULAR EMPHASIS
ON THE HOMICIDE. BECAUSE THERE WAS AN AREA THAT HERBERT WEXLER
HAD A GREAT INTEREST IN.
AND AS SUPPLEMENTAL READINGS IN THE COURSE, WE FOCUSED
HEAVILY ON THE MODEL PENAL CODE AND ALSO ON AN EXTENSIVE
MONOGRAPH BY MICHAEL AND WEXLER DEALING WITH HOMICIDE. IT WAS
CALLED "THE RATIONALE OF THE LAW OF HOMICIDE." AND IT WAS A
WORK THAT HAD A CREAT INFLUENCE ON MY UNDERSTANDING OF HOW
SOCIAL SCIENCE COULD BE USED TO ILLUMINATE LEGAL PROBLEMS.
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Q. IN WHAT SENSE? WHAT WAS THE NATURE OF THAT WORK?
A. THAT WORK GAVE AN EXPLANATION AND RATIONALE FOR THE
SANCTIONS THAT ARE IMPOSED IN THE CRIMINAL JUSTICE SYSTEM FOR
HOMICIDE AND SOUGHT TO JUSTIFY IT BY DRAWING ON SOCIOLOGICAL AND
PSYCHOLOGICAL LITERATURE THAT WAS EXTANT AT THAT TIME.
@. DID YOU COMPLETE YOUR DEGREE AT COLUMBIA?
A. NO, I DID NOT. I TRANSFERRED AFTER MY FIRST YEAR TO YALE
LAW SCHOOL.
@. WHY DID YOU MAKE THAT TRANSFER?
A. WELL, I DISCOVERED WHEN I ARRIVED AT COLUMBIA LAW SCHOOL
THAT THE PRINCIPAL FOCUS THERE WAS TRAINING LAWYERS TO ENTER THE
GENERAL FRACTICE OF LAW, WITH A PARTICULAR FOCUS ON BUSINESS,
PRIMARILY CORPORATE BUSINESS, AND TO SERVE LARGE FIRMS. THAT
WAS NOT MY PARTICULAR FOCUS, AND MY PROFESSIONAL DEVELOPMENT AT
THAT TIME, AND I WAS ATTRACTED TO YALE LAW SCHOOL BECAUSE OF THE
PARTICULAR EMPHASIS IN THE CURRICULUM THERE ON THE RELATIONSHIP
BETWEEN LAW AND THE SOCIAL SCIENCES. AND THAT’S THE REASON THAT
I TRANSFERRED THERE.
@. HAD YOU ALREADY FORMED THAT AS AN AREA OF YOUR OWN INTEREST
AT THE TIME YOU MADE THAT SWITCH?
A. YES, I HAD, BECAUSE HAVING DONE GRADUATE WORK IN POLITICAL
SCIENCE, I REALIZED THE IMPORTANCE OF UNDERSTANDING HOW SYSTEMS
ACTUALLY OPERATE AND I REALIZED THAT THE SOCIAL SCIENCES
PROVIDED THE GREATEST POTENTIAL FOR PROVIDING THAT INSIGHT INTO
HOW THE LEGAL SYSTEM ACTUALLY OPERATED. AND THEREFORE I WAS
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BALDUS - DIRECT
ATTRACTED TO THAT APPROACH AT YALE LAW SCHOOL. AND IT WASN'T
PROVIDED AT COLUMBIA LAW SCHOOL AT THAT TIME.
Q. DID YOU TAKE ANY COURSES WHILE AT YALE THAT LOOKED AT LAW
AND SOCIAL SCIENCE QUESTIONS?
A. YES, I TOOK A NUMBER OF COURSES THAT DID THAT.
I TOOK A COURSE WITH HAROLD GLAZWELL. WHO IS A
DISTINGUISHED POLITICAL SCIENTIST WHO WAS ON THE FACULTY AT THE
YALE LAW SCHOOL, AND THE PRINCIPAL FOCUS OF THAT COURSE WHICH HE
TAUGHT WITH MEYERS MACDOUGALD. THE LAWYER: WAS ON THE
RELATIONSHIP BETWEEN LAW AND SOCIETY AND HOW SOCIAL SCIENCE
SHEDS LIGHT ON THE OPERATION OF THE LEGAL PROCESS.
@. DID YOU TAKE ANY OTHER COURSES FROM OTHER PROFESSORS THAT
MAY HAVE BORNE ON THESE QUESTIONS, THE RELATION BETWEEN
POLITICAL STRUCTURES. IF YOU WOULD, AND THE LAW?
A. YES, I TOOK TWO COURSES THAT HAD A GREAT INFLUENCE ON MY
THINKING ABOUT THE RELATIONSHIP BETWEEN THE LAW AND SOCIAL
SCIENCE. ONE COURSE WAS BY ALEXANDER BICKLE WHO IS A
DISTINGUISHED CONSTITUTIONAL LAWYER. AND IT DEALT WITH THE
SUBJECT OF PUBLIC EDUCATION. AND WE DREW HEAVILY ON THE
EXISTING SOCIAL SCIENCE LITERATURE AT THAT TIME, TO TRY AND
ILLUMINATE AND UNDERSTAND THE LEGAL ISSUES THAT THE FEDERAL
COURTS WERE CONFRONTING AT THAT TIME.
THE OTHER COURSE I HAD THAT WAS VERY MUCH IN THIS VEIN
WAS A COURSE BY ROBERT BORK, WHO IS NOW A JUDGE ON THE, JUSTICE
ON THE CIRCUIT COURT OF APPEALS, AND HIS FOCUS WAS ON ANTI-TRUST
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BALDUS - DIRECT
LAW. AND THE WAY IN WHICH ECONOMIC THEORY INFORMS THE
DEVELOPMENT AND APPLICATION OF ANTI-TRUST LAW.
Q. AFTER COMPLETING YOUR LAW SCHOOL, LET ME ASK YOU, DID YOU
RECEIVE ANY HONORS DURING YOUR LAW SCHOOL CAREER?
A. YES. 1 RECEIVED AN AWARD FOR THE SENIOR PAPER THAT I WROTE
AT THE TIME THAT I WAS IN LAW SCHOOL.
@. WHAT WITH A THAT PAPER ON?
A. THAT PAPER WAS ON THE COMPETENCE OF STATES TO TERMINATE
CONCESSION AGREEMENTS IN THE INTERNATIONAL CONTEXT. CONCESSIONS
ARE OPPORTUNITIES GIVEN BY GOVERNMENTS TO FOREIGN CORPORATIONS
TO COME IN AND EXPLOIT THEIR RESOURCES OR TO DO BUSINESS WITHIN
THEIR BORDERS AND VERY OFTEN THE GOVERNMENT WILL BECOME UNHAPPY
FOR SOME REASON OR OTHER. AND EXPROPRIATE THE ASSETS OF THE
COMPANY, AND THERE‘S A SIGNIFICANT ISSUE IN INTERNATIONAL LAW AS
TO WHAT THE OBLIGATIONS OF A STATE ARE WHEN THEY UNDERTAKE SUCH
AN EXPROPRIATION, AND THAT WAS THE FOCUS OF MY INQUIRY, AND I
DREW VERY HEAVILY IN THAT INQUIRY ON THE EXISTING ECONOMIC AND
POLITICAL THEORY THAT BORE ON THOSE QUESTIONS AT THAT TIME.
@. WHAT WAS THE NATURE OF THE HONOR YOU RECEIVED FOR THAT WORK?
A. IT WAS A PRIZE OF HAVING THE SECOND BEST PAPER SUBMITTED IN
THE INTERNATIONAL LAW DIVISION OF THE LAW SCHOOL.
@. AFTER COMPLETING YOUR LAW SCHOOL EDUCATION, PROFESSOR
BALDUS. WHAT DID YOU THEN DO?
A. UPON MY COMPLETION OF THE LEGAL EDUCATION, I ENTERED THE
GENERAL PRACTICE OF LAW IN PITTSBURG, PENNSYLVANIA.
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BALDUS - DIRECT
B. WHAT WAS THE NATURE OF YOUR PRACTICE?
A. THE FIRST YEAR I WORKED IN A FIRM THAT CONCENTRATED ON
BANKING, AND TRUST AND ESTATES LAW.
AND AT THAT TIME. I DEVELOPED AN INTEREST IN
LITIGATION AS A RESULT OF WORK I DID DURING MY FIRST YEAR. AND I
MOVED AS AN ASSOCIATE TO A FIRM WHICH CONCENTRATED ON EQUITY
LITIGATION. THE BUSINESS OF THE FIRM CONSISTED PRINCIPALLY OF
REFERRALS FROM SOLO PRACTITIONERS IN WESTERN PENNSYLVANIA. WHO
CALLED UPON THE EXPERTISE OF OUR FIRM IN THE AREA OF EQUITY
LITIGATION.
QR. DID YOU DURING THAT TIME HAVE ANY EXPOSURE TO THE CRIMINAL
LAW OR CRIMINAL PRACTICE?
A. YES. I DID. I WAS INVOLVED IN THE TRIAL OF A FEW CRIMINAL
CASES. I HANDLED SOME HABEAS CORPUS MATTERS. AT THAT TIME,
SUPREME COURT DECISIONS WERE INCREASING THE PRESSURE ON THE
FEDERAL COURTS TO REPRESENT PRISONERS AND I VOLUNTEERED ON A PRO
BONO BASIS TO HANDLE SOME OF THOSE CASES.
ALSO I HAD FRIENDS WHO WERE, ASSISTANT DISTRICT
ATTORNEYS, IN ALLEGHENY COUNTY WHERE I PRACTICED. AND BECAUSE OF
MY PARTICULAR INTEREST IN HOMICIDE WHICH I DEVELOPED AS A LAW
STUDENT. I SPENT TIME AS LAWYERS DO TALKING ABOUT THE CASES. AND
EXPLORING WITH THEM THE PROBLEMS THAT THEY CONFRONTED AND THE
FACTORS THAT WERE IMPORTANT TO THEM IN TAKING THE KIND OF
DECISIONS THEY DID.
@. DID YOU BRING TO THOSE CASUAL CONVERSATIONS WITH OTHER
44
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LAWYERS ANY MORE PARTICULAR FOCUS OR INTEREST THAT MIGHT BEAR ON
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2 | THIS HEARING?
2 |A. WELL, THE PRINCIPAL FOCUS WAS THE CONCERNS AND THE KINDS OF
4 |FACTORS THAT ARE IMPORTANT TO PROSECUTORS IN DECIDING HOW TO
% |DISPOSE OF CASES OF THAT TYPE.
: 6 |@. WHAT BACKGROUND DID YOU HAVE FOR ASKING QUESTIONS OF THAT
7 | SORT? WAS THIS AGAIN JUST CONVERSATIONS AMONG LAWYERS, OR DID
8 |YOU JUST DRAW ON YOUR PREVIOUS STUDY?
9 |A. YES, IT WAS BASED UPON MY KNOWLEDGE OF THE CRIMINAL LAW,
10 |FROM HAVING STUDIED IT AND ALSO MY LIMITED EXPOSURE IN THE
11 |CRIMINAL JUSTICE SYSTEM AS A PRACTITIONER, AND AS A RESULT OF
12 |THE INTEREST THAT 1 HAD DEVELOPED IN LAW SCHOOL IN THE AREA br
13 |HOMICIDE LAW.
14 |@. DID YOU DURING THIS PERIOD OF PRIVATE PRACTICE HAVE ANY
1S |OPPORTUNITY FOR A MORE SYSTEMATIC EVALUATION OF THE CRIMINAL
16 |JUSTICE SYSTEM?
17 |A. YES, I DID. 1967, I WAS ELECTED FROM ALLEGHENY COUNTY As A
18 |DELEGATE TO THE CONSTITUTIONAL CONVENTION IN THE STATE OF
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0 PENNSYLVANIA WHICH WAS CALLED BY THE LEGISLATURE TO AMEND THE
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CONSTITUTION TO IMPROVE THE STATE OF THE JUDICIARY, AND ALSO TO
21 REVISE THE SYSTEM OF LOCAL GOVERNMENT.
22 AND I SERVED ON THE JUDICIARY COMMITTEE IN THE
23 CONSTITUTIONAL CONVENTION, AND ONE OF OUR PRINCIPAL FUNCTIONS
24 WAS TO EXAMINE THE OPERATION OF THE JUDICIARY AT THAT TIME, AND
23 IN THE COURSE OF THAT. WE FOCUSED IN A SYSTEMATIC WAY OR AS
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SYSTEMATIC AS SUCH BODIES FOCUS ON THESE QUESTIONS. THE
OPERATION OF THE CIVIL AND CRIMINAL JUSTICE SYSTEM THROUGHOUT
THE STATE OF PENNSYLVANIA.
AND IN THE COURSE OF THAT. WE HEARD A NUMBER OF EXPERT
WITNESSES. AND MADE A VARIETY OF RECOMMENDATIONS
TO THE BODY.
R. HOW SIGNIFICANT A PORTION OF YOUR TIME WAS DEVOTED TO THAT
WORK DURING THAT PERIOD?
A. I WOULD SAY ABOUT ONE-THIRD OF THE TIME THAT I DEVOTED TO
THE CONSTITUTIONAL CONVENTION WAS DEVOTED TO THE JUDICIARY
MATTERS.
@. HOW LONG WERE YOU INVOLVED IN CONVENTION MATTERS?
A. THE CONVENTION LASTED FOR FOUR MONTHS, AND DURING THAT TIME.
WE SPENT BETWEEN, ON AN AVERAGE OF FOUR DAYS A WEEK IN SESSION.
QR. YOU’VE TALKED ABOUT PRIVATE PRACTICE. WHAT WAS YOUR NEXT
CAREER STEP BEYOND THAT?
A. MY NEXT STEP WAS TO RETURN TO GRADUATE SCHOOL. I HAD
DECIDED THAT I WOULD UNDERTAKE A TEACHING CAREER, AND BEFORE
DOING €0. I RETURNED TO YALE LAW SCHOOL FOR ONE YEAR TO WORK FOR
AN L.L.M. DEGREE, WHICH IS THE FIRST ADVANCED DEGREE IN LAW.
@. AND DID YOU RECEIVE SUCH DEGREE?
A. YES. I DID.
Q. DID YOU UNDERTAKE ANY RESEARCH DURING YOUR L.L.M. PERIOD
THATS RELEVANT TO THE MATTERS BEFORE THE COURT IN THIS HEARING?
A. YES: AT THAT TIME. I BEGAN A RESEARCH PROJECT WHICH FOCUSED
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ON THE QUESTION OF THE CONSTITUTIONALITY AND JUSTIFICATION FOR
THE PRACTICE OF REGUIRING WELFARE RECIPIENTS TO REPAY THE MONEY
THAT THEY HAD RECEIVED WHILE THEY'RE ON WELFARE.
THERE WAS A PERIOD IN DEVELOPMENT OF CONSTITUTIONAL
LAW IN THIS COUNTRY IN WHICH MANY WELFARE REGULATIONS WERE
COMING UNDER CHALLENGES. AND THERE WAS AN IMPORTANT QUESTION AS
TO WHETHER OR NOT THESE PRACTICES WERE GOOD POLICY AND ALSO
WHETHER THEY WERE CONSTITUTIONAL UNDER THE 14TH AMENDMENT.
AND I SPENT MY TIME AT YALE THAT YEAR, OR SUBSTANTIAL
PORTION OF IT. PLANNING THIS STUDY OF THE LEGAL ISSUES. AND ALSO
OF HOW THIS SYSTEM IN FACT OPERATED. WITH A LARGE DEBATE AT THE
TIME AS TO THE IMPACT THESE LAWS HAD ON THE WILLINGNESS OF
PEOPLE TO GO ON WELFARE, AND ALSO THE AMOUNT OF MONEY THAT THE
STATES COLLECTED AS A RESULT OF THESE WELFARE RECOVERY
PRACTICES.
@. WELL, DID YOU COMPLETE THAT PROJECT WHILE YOU WERE A STUDENT
AT YALE?
A. 1 WROTE A DRAFT OF THAT PAPER, WHICH FOCUSED PRINCIPALLY ON
THE LEGAL ISSUES, AND ALSO OUTLINED THE APPROACH THAT I HAD
HOPED TO UNDERTAKE WHEN I ENTERED TEACHING FOR THE COLLECTION OF
DATA. SO THAT 1 COULD DU A MORE SYSTEMATIC INVESTIGATTION OF HOW
THE SYSTEM IN FACT OPERATED.
@. AFTER YOU RECEIVED YOUR L.L.M. DEGREE, DID YOU RECEIVE ANY
OFFERS OF ACADEMIC EMPLOYMENT?
A. YES. I DID.
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@. AND DID YOU TAKE ONE OF THEM?
A. YES, I TOOK THE OFFER FROM THE UNIVERSITY OF IOWA COLLEGE OF
LAW TO COMMENCE THERE AS AN ASSOCIATE PROFESSOR OF LAW.
@. DID YOU UNDERTAKE FURTHER INVESTIGATION IN THIS AREA,
WELFARE REFORM, WHILE YOU WERE AT IOWA?
A. YES, THAT I3 THE TIME THAT I BEGAN TO UNDERTAKE TRAINING
MYSELF IN THE SYSTEMATIC CONDUCT OF EMPIRICAL RESEARCH.
I REALIZED THAT WHEN I BEGAN TO COLLECT THIS
INFORMATION, THAT THERE WAS A TREMENDOUS AMOUNT OF INFORMATION
THAT BORE ON THIS QUESTION THAT I WAS FOCUSING ON. THAT IS.
WHAT DETERRENT EFFECT DID THIS HAVE FOR PEOPLE WHO MIGHT
OTHERWISE BE ON WELFARE AND WHAT FINANCIAL RETURNS DID THE STATE
GAIN FROM THIS PRACTICE.
AND I UNDERTOOK AN EXTENSIVE EMPIRICAL STUDY AT THIS
TIME, AFTER TAKING A COURSE IN THE UNIVERSITY ON EMPIRICAL
RESEARCHED METHODS, AND STATISTICAL METHODOLOGY. AND EXTENSIVELY
READING IN THIS AREA, I UNDERTOOK THIS RESEARCH PROJECT.
A. WHAT WERE YOUR RESEARCH OBJECTIVES. SPECIFICALLY STATED?
A. THE RESEARCH OBJECTIVES WERE TO DETERMINE THE EXTENT TO
WHICH THE REQUIREMENTS OF REPAYMENT DETERRED PEOPLE FROM GOING
ON WELFARE AND TO DETERMINE THE FINANCIAL GAINS THAT THE STATES
OBTAINED AS A RESULT OF THESE LAWS. AND FURTHER. TO INVESTIGATE
THE EFFECT THAT THESE LAWS HAD ON THE LIVES OF INDIVIDUAL
WELFARE RECIPIENTS, AND WITH THAT INFORMATION. I HOPED TO
EVALUATE THE CONSTITUTIONAL ARGUMENTS THAT HAD BEEN PRESENTED IN
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LITIGATION ON THESE QUESTIONS AND ALSO TO EVALUATE THE UTILITY
OF THESE LAWS FROM A POLICY PERSPECTIVE.
@. DID YOU DEVELOP A RESEARCH DESIGNED TO ANSWER THOSE
GUEST IONS?
A. YES, I DID. THE FIRST APPROACH IN TERMS OF DETERMINING WHAT
IMPACT THESE LAWS HAD ON THE WILLINGNESS OF PEOPLE TO GO ONTQ
WELFARE WAS A TIME SERIES ANALYSIS. AND WHAT THAT MEANS. VERY
SIMPLY, IS THAT YOU LOOK IN THE TREND IN CASE LOADS BEFORE ONE
OF THESE LAWS IS ENACTED OR REPEALED THAT AFFECTS PEOPLE
OBLIGATION TO REPAY THE AMOUNT OF WELFARE THAT THEY RECEIVE. AND
THE CASE LOADS AFTER THE LAW IS EITHER REPEALED OR ENACTED. AND
PARTICULARLY IN THE SOUTH YOU WOULD SEE SUBSTANTIAL CHANGES IN
THE CASE LOADS UPON THE ADOPTION OF ONE OF THESE LAWS. OLDER
PEOPLE WERE TERRIFIED AT THE THOUGHT OF HAVING TO REPAY THE
MONEY THEY RECEIVED ON WELFARE OUT OF THEIR ESTATES. SO THEY
WOULD LEAVE THE WELFARE ROLLS SO THEIR CHILDREN COULD ENJOY AN
INHERITANCE.
WE DID ABOUT NINETY OF THESE TIME SERIES. 1 WAS
WORKING ON THESE PROJECTS WITH PROFESSOR JAMES COLE WHO WAS A
CONSULTANT FOR ME. HE WAS AN APPLIED STATISTICIAN AT THE
UNIVERSITY OF IOWA, AND WE DID NINETY OF THESE ANALYSES.
Q. DID YOU EMPLOY ANY DATA GATHERING INSTRUMENT TO DO THESE
STUDIES?
A. YES, WE COLLECTED THE INFORMATION FROM THE PUBLIC RECORDS ON
THE CASE LOADS IN THE STATES BEFORE AND AFTER THESE LAWS WERE
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ADOPTED.
IN ADDITION. WE COLLECTED INFORMATION FROM THE STATES
ON THE AMOUNT OF MONEY THAT THEY ACTUALLY COLLECTED.
AND THE AMOUNT OF MONEY THAT THEY SPENT IN THEIR
WELFARE PROGRAM SO WE COULD DETERMINE THE PROPORTION OF THE
TOTAL EXPENDITURES THAT THEY WERE ACTUALLY ABLE TO RECOVER. AND
TO DO THAT, I HAD TO PREPARE QUESTIONNAIRES WHICH WERE SENT
AROUND TO THE STATE GOVERNMENTS WHEN THE PROGRAMS WERE
ADMINISTERED AT THE STATE LEVEL AND TQ COUNTY GOVERNMENTS WHEN
THEY WERE ADMINISTERED AT THE COUNTY LEVEL.
@. WHO PREPARED THOSE QUESTIONNAIRES?
A. 1 PREPARED THEM.
QR. WHO MADE THE ARRANGEMENTS TO OBTAIN THE DATA FROM THE
STATES?
A. THAT WAS MY RESPONSIBILITY.
I WAS THE SOLE AUTHOR OF THIS ARTICLE AND I HAD THE
ASSISTANCE OF JAMES COLE, THE CONSULTANT ON THIS PROJECT.
@. DID YOU OVERSEE THE COLLECTION OF DATA?
A. YES, I DID.
@. DID YOU GET INVOLVED IN THE ANALYSIS OF THE DATA?
A. YES, I CONDUCTED THE PRINCIPAL ANALYSIS. JAMES COLE RAN THE
STATISTICAL ANALYSES, CONDUCTED THE TIME SERIES. AND I
INTERPRETED THEM AND PUT THEM TOGETHER IN THE FORM OF AN
ARTICLE.
@. WHAT FORMAL BACKGROUND DID YOU HAVE AT THAT TIME FOR THE USE
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OF THESE SAMPLES. EXCUSE ME. METHODOLOGICAL TECHNIQUES?
A. WELL, MY FORMAL TRAINING IN RESEARCH METHODOLOGY AS AN
UNDERGRADUATE AND AS A GRADUATE STUDENT WAS RESTRICTED TO
COURSES I HAD ON RESEARCH IN THE FIFTIES AND EARLY SIXTIES, AND
AT THAT TIME. AS I SUGGESTED EARLIER. QUANTITATIVE METHODS WERE
NOT IN WIDESPREAD USE. AND I REALIZED THAT WHEN I CAME TO THIS
PROBLEM, AND. IN THE LATE SIXTIES. I REALIZED THAT I HAD TO
SELF-EDUCATE MYSELF, WHICH I PROCEEDED TO DO BY AUDITING A
COURSE IN STATISTICS AND TAKING A COURSE ON RESEARCH METHODOLOGY
AS RELATES TO LEGAL QUESTIONS AND BY COLLABORATING CLOSELY WITH
STATISTICIANS ON PARTICULAR PROJECTS. WHO COULD TRAIN ME IN THE
RUDIMENTS OF STATISTICS THAT I NEEDED TO BE ABLE TO INTERPRET AND
COLLECT DATA THAT WERE RELEVANT TO THE PROJECTS 1 WAS
UNDERTAKING.
Q. WAS THAT JAMES COLES ROLE IN THIS STUDY YOU’VE BEEN
DESCRIBING?
A. YES, HE WAS A CONSULTANT AND HE WAS ALSO A TEACHER. WE MET
ON A REGULAR BASIS AND I LEARNED A LARGE PROPORTION OF WHAT I
KNOW FROM MY CONSULTATIONS WITH HIM ON A DAILY BASIS OVER A
SEVERAL YEAR PERIOD OF TIME.
@. WHAT KIND OF STATISTICAL ANALYSES OR TECHNIQUES DID YOU
EMPLOY ON THESE DATA THAT YOU DESCRIBED ABOUT THE WELFARE
SYSTEM?
A. WE CONDUCTED TIME SERIES ANALYSIS WHICH I JUST DESCRIBED,
BEFORE AND AFTER COMPARISON.
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WE ALSO CONDUCTED MULTI-REGRESSION ANALYSES AND WE ALSO
DID CROSS TABULATION TYPE ANALYSES, SIMPLE COMPARISONS OF
POPULATIONS AND EXAMINING THE AMOUNTS OF MONEY THAT WERE
RECOVERED IN DIFFERENT STATES. CATEGORIZED BY DIFFERENT
CHARACTERISTICS. .
@. HOW LONG DID THIS RESEARCH EFFORT TAKE YOU?
A. IT TOOK THREE YEARS.
Re AND HOW SIGNIFICANT A PORTION OF YOUR PROFESSIONAL TIME DID
YOU DEVOTE TO THIS EFFORT?
A. 1 DEVOTED APPROXIMATELY FIFTY PERCENT OF MY TIME DURING THAT
PERIOD OF TIME TO THIS PROJECT.
@. DID YOU RECEIVE AT ANY POINT ANY FUNDING FOR THIS STUDY?
A. I RECEIVED NO FORMAL GRANT TO SUPPORT THIS WORK.
HOWEVER. I DID RECEIVE FINANCIAL SUPPORT FROM DONALD
CAMPBELL. WHO IS A LEADING METHODOLOGIST, WHO WAS AT
NORTHWESTERN UNIVERSITY AT THE TIME. HE READ AN EARLY DRAFT OF
THIS PAPER, AND THOUGHT IT WAS VERY GOOD. AND MADE SOME
SUGGESTIONS OF HOW THE ANALYSIS COULD BE EXPANDED. AND HE HAD A
CONTINUING GRANT FROM THE NATIONAL SCIENCE FOUNDATION, AND
PROVIDED US FINANCIAL SUPPORT TO EXTEND THE ANALYSIS IN THE
STUDY. AND WE TOOK THE OFFER AND DID EXTEND THE ANALYSIS.
QR. WHY DID PROFESSOR CAMPBELL GIVE YOU THE FUNDS TQ EXTEND THE
ANALYSIS?
A. WELL, HE THOUGHT IT WAS AN EXTREMELY SIGNIFICANT EXAMPLE OF
TIME SERIES RESEARCH. AN AREA OF RESEARCH AND A TYPE OF
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METHODOLOGY IN WHICH HE HAD A GREAT DEAL OF INTEREST.
@. PROFESSOR BALDUS, WAS YOUR WORK EVER PUBLISHED?
A. YES. IT WAS. |
G8. LET ME ASK YOU TO LOOK IN YOUR WITNESS BOOK TO AN EXHIBIT
THAT'S MARKED FOR IDENTIFICATION AS DB-2 AND ASK YOU IF YOU CAN
IDENTIFY IT?
A. YES, DB-2 IS A XEROX COPY OF AN ARTICLE ENTITLED
"WELFARE AS A LOAN: AN EMPIRICAL STUDY OF THE RECOVERY OF
PUBLIC ASSISTANCE PAYMENTS IN THE UNITED STATES."
AND IT 1S AT VOLUME 25 OF THE STANFORD LAW REVIEW.
PAGE 123.
NOW, THE —-
@. AND IS THIS DOCUMENT, DOES THIS DOCUMENT REFLECT THE PROCESS
OF ANALYSIS AND THE RESULTS AND CONCLUSIONS THAT YOU REACHED IN
THE STUDY YOU DESCRIBED?
A. YES.
@. DID THIS ARTICLE RECEIVE ANY REACTION IN PROFESSIONAL
CIRCLES?
A. YES. IT WAS WELL RECEIVED. AND WELL REGARDED, PARTICULARLY
FOR THE USE OF THE INTERRUPTED TIME SERIES METHODOLOGY.
@. DO YOU HAPPEN TO KNOW WHETHER IT HAS ANY CONTINUING
PEDIGOGICAL USE?
A. YES. IT’S BEEN REPRINTED IN A NUMBER OF BOOKS, AND IT’S USED
IN COURSES IN SOCIOLOGY DEPARTMENTS AND IN LAW SCHOOLS TO
ILLUSTRATE THIS TYPE OF METHODOLOGY AS A WAY OF TRYING TO
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DETERMINE THE IMPACT THE ENACTMENT OF LAWS HAVE. THIS IS A
SUBJECT OF GREAT INTEREST TO LEGAL SCHOLARS. HOW DO WE KNOW THE
EFFECT OF A PARTICULAR LAW WHEN IT”S ADOPTED AND THIS IS OFFERED
AS AN EXAMPLE OF A METHOD OF DOING THAT THAT CONTROLS FOR OTHER
POSSIBLE EXPLANATIONS IN ONE OF THE MOST RELIABLE WAYS THAT .
METHODOLOGY CAN PROVIDE.
MR. BOGER: YOUR HONOR, I WOULD OFFER DB-2 IN
EVIDENCE, as FURTHER SUPPORT OF PROFESSOR BALDUS”
QUALIFICATIONS.
MS. WESTMORELAND: YOUR HONOR, I OBJECT TO THE
ADMISSION OF DB-2. LIKE I SAID, FIRST OF ALL, I HAVE NOT HAD AN
OPPORTUNITY TO READ THE ARTICLE. BUT IT DOES NOT APPEAR TO ME TO
BE RELEVANT TO THE PROCEEDINGS WE HAVE TODAY. WE HAVE ON THE
RECORD PROFESSOR BALDUS HAS WRITTEN AN ARTICLE AND I THINK THAT
SUFFICIENTLY ESTABLISHES HIS QUALIFICATIONS. I DON“T SEE ANY
NEED FOR THE ARTICLE ITSELF TO BE ADMITTED IN EVIDENCE.
MR, BOGER: YOUR HONOR, THE PURPOSE OF THE ARTICLE. OF
COURSE, IS TO DEMONSTRATE THE QUALITY AND THE CARE OF THE KIND
OF ANALYSIS OF LEGAL PROBLEMS, IN AN EMPIRICAL SETTING, OR
EMPIRICAL PROBLEMS IN A LEGAL SETTING PROFESSOR BALDUS HAS DONE
IN THE PAST. 1 SUGGEST THIS ARTICLE MAY BE USEFUL IN THAT
PARTICULAR ——
MS. WESTMORELAND: YOUR HONOR, I SUBMIT THAT WHAT IS
RELEVANT IS THE CARE THAT HAS BEEN TAKEN IN THE STUDY THATS
GOING TO BE SUBMITTED IN THE INSTANT CASE. AND NOT THE CARE
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BALDUS -~ DIRECT
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THATS BEEN TAKEN IN PRIOR STUDIES. WE WILL URGE IT’S
2 IRRELEVANT.
3 THE COURT: I THINK THE FACT THAT HE WROTE THE
4 ARTICLE, THAT IT WAS RECOGNIZED, THAT IT SERVES AS A MODEL IS
s |WHAT IS RELEVANT TO HIS EXPERTISE, AND NOT THE ARTICLE ITSELF.
& |AND I DON’T SEE ANY REASON TO ADMIT IT BEYOND WHAT YOUVE
7 | ALREADY DEMONSTRATED. SO ILL SUSTAIN THE OBJECTION.
# MR. BOGER: LET ME JUST THEN CLARIFY ONE OR TWO
9 |MATTERS FOR THE RECORD.
10 |BY MR. BOGER:
11 @. DID YOU EMPLOY IN THIS MODEL STUDY ANY TECHNIQUES OTHER THAN
12 | TECHNIQUES OF ANALYSIS BY USE OF TIME SERIES. ANY OTHER
13 |METHODOLOGICAL TECHNIQUES?
14 A. YES. WE USED REGRESSION ANALYSIS AND WE USED CROSS
15 | TABULATION ANALYSIS METHODS OF THE TYPE THAT WE USED IN THE
16 STUDY THATS THE SUBJECT OF THIS PROCEEDING.
17 AND ALSO: WE DID QUALITATIVE ANALYSES BY EXAMINING
18 RECORDS THAT PEOPLE HAD COLLECTED ABOUT THE IMPACTS OF THESE
19? LAWS ON THE LIVES OF INDIVIDUAL WELFARE RECIPIENTS.
20 @. THANK YOU.
21 DID YOU UNDERTAKE ANY SUBSEQUENT ACADEMIC RESEARCH OR
22 WRITING. CONCERNING THE LEGAL USE OF EMPIRICAL DATA?
23 A. YES, 1 DID. UPON THE COMPLETION OF THIS ARTICLE, JAMES COLE
24 AND I UNDERTOOK A STUDY OF HOW COURTS, PRIMARILY FEDERAL COURTS:
23 EMPLOY STATISTICAL EVIDENCE IN THE RESOLUTION OF CLAIMS ARISING
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IN EMPLOYMENT CASES, EMPLOYMENT DISCRIMINATION. AND
DISCRIMINATION CASES MORE BROADLY.
@. AND WHAT WAS THE OBJECTIVE OF YOUR STUDY?
A. THE OBJECTIVE OF THE STUDY WAS TO FIRST CLARIFY THE LAW ON
THE SUBJECT TO THE EXTENT THAT IT SPECIFIED THE KINDS OF
EMPIRICAL FACTUAL QUESTIONS THAT WERE PRESENTED BY
DISCRIMINATION CASES.
THE SECOND OBJECTIVE WAS TO EXAMINE THE LITERATURE IN
THE SOCIAL SCIENCES TO DETERMINE WHAT WERE THE MOST SUITABLE
METHODOLOGIES THAT COURTS COULD USE TO EVALUATE EVIDENCE OF
DISCRIMINATION IN A LEGAL CONTEXT. |
AND FINALLY, THE OBJECTIVE WAS TO PROVIDE GUIDELINES
FOR COURTS AND LAWYERS IN EVALUATING A MEANING AND SIGNIFICANCE
OF THIS SORT OF STATISTICAL EVIDENCE IN THE CONTEXT OF
DISCRIMINATION LAWSUITS.
@. DID YOU RECEIVE ANY FUNDING FOR THIS WORK?
A. YES, WE APPLIED FOR AND RECEIVED A GRANT FROM THE NATIONAL
SCIENCE FOUNDATION. LAW AND SOCIAL SCIENCES PROGRAM.
THE NATIONAL SCIENCE FOUNDATION HAS A PROGRAM IN ITS
SOCIAL SCIENCES DIVISION WHICH IS DESIGNED TQ ENCOURAGE
INTERDISCIPLINARY LAW RESEARCH AND TO ENCOURAGE THE
PARTICIPATION OF LAWYERS IN THE CONDUCT OF EMPIRICAL RESEARCH
AND TO PROVIDE RESEARCH THAT IS OF ASSISTANCE TO THE OPERATION
OF THE LEGAL SYSTEM. AND THOSE ARE THE PEOPLE THAT FUNDED THE
PROJECT.
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QR. WAS THIS A COMPETITIVE FUNDING QUESTION?
A. YES. THE NATIONAL SCIENCE FOUNDATION IN EVERY AREA IS
COMPETITIVE. THE NATIONAL SCIENCE FOUNDATION IS A GOVERNMENTAL
AGENCY WHICH DISTRIBUTES FUNDS AFTER EXTENSIVE PEER REVIEW. THAT
1S REVIEW BY DISTINGUISHED SCHOLARS IN THE RELEVANT AREA. AND
ITS COMPETITIVE IN EVERY AREA THAT I KNOW OF AND IT’S VERY
COMPETITIVE IN THE LAW AND IN THE SOCIAL SCIENCES AREA.
Q. NOW, WHAT KIND OF FUNDING, HOW SIGNIFICANT WAS THE FUNDING
THAT YOU RECEIVED FROM THE NATIONAL SCIENCE FOUNDATION?
A. WE RECEIVED A GRANT OF SIXTY THOUSAND DOLLARS.
9. WERE YOU PERMITTED ANY TIME OR ANY PERIOD OF TIME TO DEVOTE
TO THIS, APART FROM THAT MADE AVAILABLE WHEN CLASSES CEASED AT
10WA?
A. YES, I REQUESTED AND OBTAINED A LEAVE OF ABSENCE FOR THE
ENTIRE ACADEMIC YEAR AND I DEVOTED FULLTIME FOR AN ENTIRE
CALENDAR YEAR TO THE PURSUIT OF THIS QUESTION.
AND JAMES COLE, MY CO-AUTHOR, RECEIVED A LEAVE FOR
ONE-HALF OF THE ACADEMIC YEAR AND DEVOTED ONE-HALF OF HIS TIME
FOR THE YEAR TO THE PROJECT.
@. AND DID YOU, YOUR WORK RESULT IN ANY WRITTEN PRODUCT AT ANY
POINT?
A. YES. IT RESULTED FIRST IN A PRELIMINARY REPORT, AND THEN
ULTIMATELY IN A BOOK.
@. LET ME ASK YOU, IF YOU WOULD. TO TURN TO WHATS BEEN MARKED
FOR IDENTIFICATION AS DB-2 AND ASK IF YOU CAN IDENTIFY THAT
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DOCUMENT?
A. YES, THIS DOCUMENT, DB-3. IS AN ARTICLE ENTITLED
"QUANTITATIVE PROOF OF INTENTIONAL DISCRIMINATION", CO-AUTHORED
BY JAMES COLE AND ME. AND WAS PUBLISHED IN VOLUME i OF
EVALUATION QUARTERLY. PAGE 33, 1977.
QR. WHAT IS EVALUATION QUARTERLY, PROFESSOR BALDUS?
A. EVALUATION QUARTERLY IS A JOURNAL WHICH PUBLISHES ARTICLES
PRIMARILY OF AN EMPIRICAL NATURE WHICH FOCUS ON THE EVALUATION
OF SYSTEMS. AND PRINCIPALLY THE EVALUATION OF GOVERNMENT
ACTIVITIES OF ONE SORT OR ANOTHER.
@. IS IT A REFEREED JOURNAL?
1A YES, IT IS.
8. WHAT DO YOU MEAN BY THE TERM “REFEREED JOURNAL?"
A. WELL A REFEREED JOURNAL IS ONE IN WHICH SUBMISSIONS ARE
MADE, AND THOSE SUBMISSIONS, THAT IS. DRAFTS OF MANUSCRIPTS ARE
CIRCULATED TO THE LEADING SCHOLARS IN THE FIELD, AND THEY WRITE
DOWN THEIR OPINIONS AND SEND THEM BACK TO THE EDITORS OF THE
JOURNAL AND ON THE BASIS OF THAT REACTION, THE EDITORS OF THE
JOURNAL MAKE A DECISION AS TO WHETHER THE JOURNAL SHOULD BE
PUBLISHED.
@. 1 NOTE THAT AT THE BOTTOM OF THE FIRST PAGE OF DB-3, IT
APPEARS THAT THIS IS EVALUATION QUARTERLY, VOLUME 1, NUMBER 1.
WAS THERE ANY SPECIAL PUBLISHING SIGNIFICANCE IN THE INCLUSION
OF YOUR ARTICLE IN VOLUME 1. NUMBER 17?
A. WELL. IT WAS THE LEAD ISSUE. AS YOU HAVE SUGGESTED, AND WHAT
,
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WAS IMPORTANT TO ME IS THAT THE EDITORS OF THE JOURNAL INVITED
US TO SUBMIT THIS PAPER. AS YOU WILL SEE. IT WAS NOTED HERE
THAT WE HAD EARLIER PRESENTED A PAPER AT THE MIDWEST POLITICAL
SCIENCE ASSOCIATION AND THAT PAPER HAD CIRCULATED IN, IN THE
PROFESSIONAL CIRCLES. AND THE EDITORS OF THIS JOURNAL CALLED ME
UP, AND SAID CAN WE PUBLISH THIS PAPER. 1 WAS PLEASED. AND
AGREED TO IT.
Q. WHAT WAS YOUR PARTICULAR ROLE IN THE DRAFTING OF THIS
DOCUMENT?
A. 1 WAS THE PRINCIPAL DRAFTSMAN OF THE PAPER. OF COURSE,
JAMES COLE, CO-AUTHOR., WENT OVER EVERY PART OF IT AND MADE
EXTENSIVE CHANGES AND REWROTE SIGNIFICANT PORTIONS OF IT, THOSE
PARTICULARLY DEALING WITH THE STATISTICAL METHODOLOGY.
RQ. WHAT WAS THE OBJECT OF THE ARTICLE? WHAT DOES IT DISCUSS?
A. THE, OUR OVERALL OBJECTIVE WAS TO DEAL WITH DIFFERENT ISSUES
IN DISCRIMINATION CONTEXT. WE TACKLED FIRST THE ISSUE OF
INTENTIONAL DISCRIMINATION, AND SECOND WE FOCUSED ON THE ISSUE
OF DISPARATE IMPACT AS IT’S KNOWN UNDER TITLE VII LAW. AND THIS
WAS OUR FIRST EFFORT TO TRY AND FORMULATE THE ISSUES CONCERNING
YX MATTERS OF INTENTIONAL DISCRIMINATION, AND THIS WAS OUR FIRST
SORT OF WORKING DRAFT THAT FOCUSED ON THOSE QUESTIONS.
THE COURT: ON DISPARATE IMPACT OR TREATMENT?
THE WITNESS: NO, DISPARATE TREATMENT. THIS
INTENTIONAL DISCRIMINATION WOULD BE THE EQUIVALENT OF A
DISPARATE TREATMENT, YOUR HONOR.
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BALDUS « DIRECT
THE COURT: THAT'S WHAT I THOUGHT, I DIDN’T UNDERSTAND
YOU.
BY MR. BOOCER:
@. WAS THIS SOLELY A THEORETICAL WORK OR DID YOU INCLUDE ANY
EMPIRICAL COMPONENT?
A. WELL, THIS PARTICULAR WORK RIGHT HERE HAD NO EMPIRICAL
COMPONENT BUT THE BROADER PROJECT THAT CAME OUT OF IT DID. WE
DECIDED THAT IT WAS IMPORTANT IN TERMS OF THE BROADER STUDY OF
DISCRIMINATION AND THE METHODOLOGY THAT SHOULD BE USED FOR IT.
TO CET OUR HANDS ON SOME ACTUAL DATA SETS. AND TO ANALYZE THOSE
INTO WAYS THAT PRACTITIONERS, LAWYERS AND SOCIAL SCIENTISTS WOULD
APPROACH THEM IN THE CONTEXT OF AN ACTUAL CASE. SO WE OBTAINED ~-
A. THE RATIONALE WAS THAT WE WOULD BE ABLE TO GIVE BETTER
ADVICE ABOUT WHAT THE APPROPRIATE APPROACHES WERE. IF WE HAD HAD
PRACTICAL EXPERIENCE IN ANALYZING DATA SETS OF THE TYPES THAT
LAWYERS ARE ACTUALLY CONCERNED WITH, HANDLING IN CASES. AND NO
OTHER BOOKS AT THAT TIME HAD TAKEN ACTUAL DATA SETS AND
ILLUSTRATED THEIR POINTS WITH THE RESULTS FROM PARTICULAR
ANALYSES. THIS IS THE LAWYER SORT OF CASE APPROACH. WE THOUGHT
IT WOULD BE APPROPRIATE AND INSTRUCTIVE TO USE.
QA. SO WHAT DID YOU DO IN THAT CONTEXT? HOW DID YOU FULFILL
THAT AIM?
A. WELL, WE OBTAINED ONE DATA SET, WE GOT DATA FROM A CASE. WE
OBTAINED ANOTHER DATA SET WHICH WAS ACTUALLY BASED ON CASES IN A
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BALDUS - DIRECT
SLIGHTLY DIFFERENT CONTEXT AND WE USED THEM TO ILLUSTRATE HIRING
SITUATIONS. FIFTY-SOME CASES WERE INVOLVED IN THAT.
WE ALSO OBTAINED A DATA SET THAT INVOLVED SCHOOL
FINANCING =~ SCHOOL FINANCING, IT WAS AN EXTENSIVE DATA SET.
PREPARED BY THE DEPARTMENT OF EDUCATION. AND FROM THOSE THREE
DATA SETS, WE WERE ABLE TO GENERATE FOUR PROBLEMS WE COULD USE
TO ILLUSTRATE THE POINTS WE DEVELOPED THROUGHOUT THE BOOK.
@. YOU’RE TALKING NOW ABOUT YOUR LATER PUBLICATION. THE BOOK.
IN THIS PARTICULAR PUBLICATION YOU DIDN“T USE ACTUAL DATA SETS.
DID YOU DISCUSS THE LEGAL CONTEXT PROBLEMS. DID YOU
MAKE REFERENCE TO THE SEMINAL WORKS AND THE SUPREME COURT CASES
THAT WERE IMPORTANT IN THIS AREA?
A. YES, DURING THIS YEAR OF WORK WE READ EVERY CASE THAT DEALT
WITH THE ISSUE OF DISCRIMINATION, AND THE APPROPRIATE METHODS FOR
PROVING IT. AND IN EVERYTHING THAT WE HAVE WRITTEN ABOUT THIS
SUBJECT, INCLUDING THIS ARTICLE, LAYS OUT THE LEGAL BACKGROUND.
THE DOCTRINAL BACKGROUND AND DEMONSTRATES HOW THE FACTUAL
EMPIRICAL ISSUES FLOW FROM THE BASIC DOCTRINE CONTROLLING THE
SUBJECT. AND THE REFERENCES TO THIS ARTICLE. AS OTHER WORKS DO.
INCLUDES CITATION OF THOSE CASES THAT WE CONSULTED.
MR. BOGER: YOUR HONOR. I WOULD OFFER DB-3 INTO
EVIDENCE AS BEARING ON THE QUALIFICATIONS OF PROFESSOR BALDUS IN
THIS HEARING.
MS. WESTMORELAND: YOUR HONOR. I WOULD AGAIN OBJECT TO
DBE-3 ON A SIMILAR BASIS AS THE PREVIOUS ARTICLE. I AGREE IT MAY
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BALDUS ~ DIRECT
BE RELEVANT, PROFESSOR BALDUS DID WRITE THE ARTICLES I THINK
WE’VE HEARD A GREAT DEAL OF DISCUSSION ABOUT THE THRUST OF THE
ARTICLE AND THE CONTENT THEREOF, I DON’T SEE THAT THE ARTICLE
ITSELF 1S RELEVANT TO HIS QUALIFICATIONS AS FAR AS BEING
NECESSARY TO ADMIT IT INTO EVIDENCE AT THIS HEARING. I THINK
WE’VE HAD SUFFICIENT EXPLANATION TO ESTABLISH ANY QUALIFICATIONS
THAT MAY BE CONCERNED WITH THIS ARTICLE.
MR. BOGER: YOUR HONOR, I THINK IN CONTRAST. PERHAPS,
TO THE LAST ARTICLE, WHICH REFLECTED AN EMPIRICAL STUDY OF GREAT
VALUE THAT PROFESSOR BALDUS HAD UNDERTAKEN, THIS ARTICLE IS ON
THE PRECISE ISSUE BEFORE THE COURT HERE, THE QUESTION OF WHETHER
THERE 1S SUFFICIENT PROOF OF INTENTIONAL DISCRIMINATION. THE
ARTICLE REFLECTS PROFESSOR BALDUS” KNOWLEDGE OF THAT ISSUE AS A
LEGAL MATTER AND KNOWLEDGE OF THAT ISSUE AS AN EMPIRICAL MATTER.
I THINK IT“S DIRECTLY RELEVANT TO HIS QUALIFICATIONS.
THE COURT: HAVE YOU GOT A COPY OF THE FEDERAL RULES
OF EVIDENCE? SOME WAY OR ANOTHER. MINE HAS -——
MR. BOGER: I DO, YOUR HONOR.
THE COURT: LET ME TELL YOU OF MY THOUGHT PROCESSES.
YOUR PROFFER OF THIS ARTICLE IS PERHAPS EMPIRICAL
EVIDENCE THAT DOCTOR BALDUS HAS THOUGHT ABOUT THIS SORT OF
THING, BUT TO THE EXTENT THAT THE COURT NEEDS AN EXPERT. THAT
WOULD SUGGEST THAT THE COURT IS NOT IN POSITION TO EVALUATE THE
ARTICLE. AND THEREFORE, THE FACT OF PEER REVIEW PUBLICATION
ACCEPTANCE, I BELIEVE. DEMONSTRATES INDICIA OF EXPERTISE.
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BALDUS - DIRECT
IM NOT SURE, OBVIOUSLY, YOU KNOW I HAVE HAD SOME
STATISTICAL BACKGROUND, SO I DON’T WANT TO PLAY CAT AND MOUSE
WITH YOU, BUT I‘M NOT SURE WHETHER AS A PRACTICAL MATTER YOU CAN
DEMONSTRATE A MAN’S EXPERTISE BY SHOWING THE COURT WHAT HE SAID
IN AN ARTICLE ABOUT A SUBJECT WHICH HE“S BEING OFFERED TO BE AN
EXPERT ON, BECAUSE I DON’T UNDERSTAND IT.
80, I THINK THAT I WILL SUSTAIN THE OBJECTION TO THIS
AND ANY OTHER SIMILAR ARTICLES FOR THE EXPERT, FOR THE PURPOSE
OF ESTABLISHING EXPERTISE.
THERE IS. OF COURSE, THE EXCEPTION OF HEARSAY RULE
WHICH I JUST REVIEWED, WHICH MIGHT OFFER A VEHICLE FOR THE
INTRODUCTION OF THESE TO THE EXTENT THAT THEY CONTAIN ANYTHING
THAT YOU WISH FOR ME TO CONSIDER.
17-8 AN INTERSTING POINT: THATS MY VIEW ON IT.
MR. BOGER: THANK YOU, YDUR HONOR.
THE COURT: I SUSTAIN THE OBJECTION.
BY MR. BOGER!
©. YOUVE INDICATED, PROFESSOR BALDUS, THAT YOU HAVE UNDERTAKEN
SOME EMPIRICAL RESEARCH YOURSELF, THAT YOU HAVE THOUGHT ABOUT
THE QUESTIONS OF INTENTIONAL PROOF OF DISCRIMINATION.
HAVE YOU EVER EVALUATED PROFESSIONALLY THE RESEARCH OF
THE WRITING OF OTHERS ON MATTERS CONCERNING DISCRIMINATION AND
EMPIRICAL METHODS FOR PROOF OF DISCRIMINATION?
“JA. vEo,,
@. IN WHAT CONTEXT?
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A. IN 1979, I WAS INVITED BY THE AMERICAN BAR FOUNDATION
2 |RESEARCH JOURNAL TO DO A BOOK REVIEW OF TWO BOOKS. ONE BY
3 |MICHAEL FINKELSTEIN, CALLED "QUANTITATIVE METHODS IN LAW."
4 AND ANOTHER BY WILLIAM FAIRLEY, AND FREDERICK
S |MOSTELLER
w 6 THE FIRST BOOK BY MICHAEL FINKELSTEIN, FOCUSES ON —
7 |@. BEFORE YOU GET INTO THE CONTENTS OF THE BOOK, LET ME ASK
8 |YOU., PROFESSOR BALDUS, FIRST OF ALL. WHAT IS THE AMERICAN BAR
9 |FOUNDATION RESEARCH JOURNAL?
10 |A. WELL. THE AMERICAN BAR FOUNDATION IS A RESEARCH CENTER
11 |FUNDED BY THE AMERICAN BAR ASSOCIATION IN CHICAGO, AND IT HAS A
12 |STAFF OF MANY LAWYERS AND SOCIAL SCIENTISTS. WHO INVESTIGATE A
13 |VARIETY OF EMPIRICAL GUESTIONS RELATING TO THE PROFESSION IN THE
14 |CONDUCT OF LEGAL BUSINESS. AND IN 1977 OR ‘78, SPENCER KIMBALL.
1S |WHO WAS THE DIRECTOR OF THE PROGRAM. SET UP THIS JOURNAL WHICH
16 |HAS PUBLISHED A NUMBER OF ARTICLES AND ITS A WIDELY RESPECTED
17 |JOURNAL AT THIS TIME.
18 |B. AND YOU WERE INVITED TO SUBMIT A BOOK REVIEW IN THAT
w 15 |PUBLICATION?
20 |A. YES.
21 R. WHO ARE MICHAEL FINKELSTEIN, WILLIAM FARIRLEY AND FREDERICK
2 MOSTELLER?Y
23 A. MICHAEL FINKELSTEIN IS A PRACTICING LAWYER IN NEW YORK.
24 FINKELSTEIN IS THE PIONEER IN MY JUDGMENT IN THE
23 DEVELOPMENT OF THE USE OF QUANTITATIVE METHODS IN EVALUATING
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BALDUS - DIRECT
CLAIMS OF DISCRIMINATION. HIS WORK HAS BEEN WIDELY CITED BY THE
COURTS. PARTICULARLY THE FEDERAL COURTS, AND SINCE HE MADE THESE
EARLY PIONEERING EFFORTS HE‘S ATTEMPTED TO APPLY NOTIONS OF
PROBABILITY AND STATISTICAL METHODOLOGY TO A VARIETY OF OTHER
LEGAL PROBLEMS. AND HAS PUBLISHED A VERY IMPRESSIVE STRING OF
ARTICLES WHICH WERE PULLED TOGETHER INTO THIS BOOK. AND I WAS
REQUESTED TO DO AN THAN OVERVIEW OF THE WHOLE CORPUS OF MICHAEL
FINKELSTEIN’S WORK, WHICH I DID IN THIS BOOK REVIEW.
@. WHO ARE FAIRLEY AND MOSTELLER?
A. FAIRLEY AND MOSTELLER ARE RESPECTIVELY SOCIAL SCIENTISTS AND
STATISTICIANS. FREDERICK MOSTELLER IS ONE OF THE LEADING
APPLIED STATISTICIANS IN THE UNITED STATES WHO HAS MADE
SIGNIFICANT CONTRIBUTIONS IN THE AREA. PARTICULARLY AS IT
RELATES TO PUBLIC POLICY QUESTIONS.
AND THE BOOK THAT THEY WROTE TOGETHER, "STATISTICS AND
PUBLIC POLICY" BEARS ON THE APPLICATION OF PROBABILITY THEORY
AND STATISTICAL METHODOLOGY TO THE UNDERSTANDING OF PUBLIC
POLICY QUESTIONS, AND A NUMBER OF THOSE ARE, RELATED IN THE
BOOK, BEAR ON THE LEGAL PROCESS. BUT GENERALLY, THE FOCUS IS
NOT EXCLUSIVELY ON LEGAL SETTINGS.
@. LET ME ASK YOU, IF YOU WOULD. TO TURN TO WHAT‘S BEEN MARKED
FOR IDENTIFICATION AS DB-4 AND ASK IF YOU CAN IDENTIFY THAT
DOCUMENT?
A. YES, THAT IS THE BOOK REVIEW THAT I WROTE OF THE FINKELSTEIN
AND FAIRLEY AND MOSTELLER BOOKS.
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BALDUS - DIRECT
@. AND WHAT WAS THE FOCUS OF YOUR REVIEW?
A. THE FOCUS OF THE REVIEW WAS TO EVALUATE HOW EFFECTIVELY THEY
‘HAD PRESENTED THE IDEAS: AND WHAT CONTRIBUTION BOTH OF THESE
AUTHORS HAD MADE IN TERMS OF ENLARGING CUR UNDERSTANDING OF
THE POTENTIAL OF PROBABILITY THEORY FOR ENLARGING OUR
UNDERSTANDING OF IMPORTANT PUBLIC ISSUES. AND PARTICULARLY LEGAL
ISSUES IN THE CONTEXT OF MICHAEL FINKELSTEIN. AND MY CONCLUSION
WAS THAT THEY HAVE BOTH MADE, BOTH BOOKS MADE EXTREMELY
IMPORTANT CONTRIBUTIONS IN THAT REGARD. THEY STAND AS MODELS
FOR THE CONDUCT OF THIS SORT OF RESEARCH.
MR. BOGER: YOUR HONOR, IT WOULD BE MY INTENTION TO
MOVE THIS INTO EVIDENCE. MY UNDERSTANDING. THOUGH. OF YOUR
HONOR’S RULING THIS IS ONE OF THOSE KINDS OF ARTICLES TO WHICH
YOUVE SUSTAINED ANY OBJECTION FROM THE STATE.
THE COURT: I DON’T MEAN TO SAY THAT THESE THINGS HAVE
NO VALUE OR THAT THEY'RE NOT LEARNED. ALL I AM SAYING IS TO
PROVE A MAN‘S EXPERTISE, YOU EITHER PROVE HE HAS EXPERIENCE.
THAT HE HAS TRAINING, AND I THINK VERY IMPORTANTLY THAT HE HAS
STANDING WITH HIS PEERS.
THE FACT THAT HE HAS WRITTEN THE ARTICLE. AND THAT HE
REPRESENTS IT TO BE IN THE AREA, AND THAT IT WAS ACCEPTED BY THE
JOURNAL, SOME SORT OF PEER GROUP REVIEW: I THINK, IS THE
EVIDENCE OF HIS EXPERTISE THAT IS NOT PERHAPS INDEPENDENTLY
DETERMINABLE BY A COURT FROM THE CONTENT OF THE ARTICLE.
IF YOU WISH TO REFER TO SOME OF THE CONCLUSIONS
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BALDUS - DIRECT
REACHED. WE WILL AT THE PROPER TIME LOOK AT THE LEARNED TREATISE
HEARSAY RULE.
MR. BOGER: FINE. I WAS SIMPLY NOTING FOR THE RECORD
WHAT MY INTENTION HAD BEEN FOR THIS ARTICLE, AND I MIGHT ADD
FOR SEVERAL OTHERS THAT FOLLOW. BUT I WILL NOT AT THIS POINT
MOVE THEM INTO EVIDENCE. IN LIGHT OF YOUR HONOR’S RULING.
BY MR. BOGER?
G4. PROFESSOR BALDUS, YOU HAVE TALKED ABOUT YOUR LARGE-SCALE
EFFORT THAT WAS ONGOING.
THE COURT: MR. BOGER, LET ME INTERRUPT YOU FOR A
MINUTE.
WHEN 1“M TRYING SOMETHING NONJURY, I LIKE TO BREAK
MORE OFTEN FOR A SHORTER PERIOD OF TIME. I THINK IT IMPROVES MY
MENTAL ACUITY. $0 LET'S TAKE A TEN-MINUTE BREAK AND WE-‘LL COME
BACK AND RUN UNTIL 12:30.
MR. BOGER: FINE, YOUR HONOR.
THE COURT: ALL RIGHT.
(RECESS TAKEN.)
THE COURT: BE SEATED.
ALL RIGHT, MR. BOGER., GO AHEAD.
MR. BOGER! THANK YOU, YQUR HONOR.
DAVID C. BALDUS.
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
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BALDUS - DIRECT
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT’D)
BY MR. BOGER:
@. PROFESSOR BALDUS, BEFORE WE TURN BACK TO YOUR BROADER
RESEARCH EFFORT INTO THE AREA OF DISCRIMINATION, YOU HAVE JUST
TESTIFIED ABOUT A BOOK REVIEW THAT YOU AUTHORED OF SOME
IMPORTANT SOCIAL SCIENTISTS‘ AND STATISTICIANS” EFFORTS.
HAVE YOU EVER BEEN BEEN INVITED TO DO ANY OTHER SORT
OF REVIEW OF EMPIRICAL WORK OF OTHERS?
A. YES. IN 1979 1 WAS INVITED BY THE MICHIGAN LAW REVIEW TO
WRITE A BOOK REVIEW OF A BOOK PUBLISHED BY DAVID CHAMBERS, AND
THE SUBJECT OF THAT BOOK WAS THE IMPACT THAT LAWS IN MICHIGAN
HAD WHICH HAD THE EFFECT OF JAILING FATHERS WHO DID NOT PAY
CHILD SUPPORT, AND IT WAS VERY REMINISCENT OF THE WORK I HAD
DONE ON WELFARE LAW, BECAUSE THERE WAS AN IMPORTANT ISSUE AS TO
WHETHER THESE JAILING PRACTICES DETERRED FATHERS, DETERRED THEM
IN THE SENSE THAT IT MADE THEM PAY. AND NUMBER 2, HOW MUCH
INCOME WAS GAINED FROM THESE PRACTICES.
AND DAVID CHAMBERS, PROFESSOR OF LAW, AT THE
UNIVERSITY OF MICHIGAN LAW SCHOOL. UNDERTOOK IN COLLABORATION
WITH A SOCIAL SCIENTIST THERE, AN EXTENSIVE EMPIRICAL STUDY OF
THIS QUESTION. AND IT RESULTED IN A BOOK PUBLISHED BY THE
UNIVERSITY OF CHICAGO, AND THEY ASKED ME TO REVIEW THAT BOOK.
WHICH I DID.
Q. WAS THAT WORK, WAS THAT BOOK AN IMPORTANT WORK?
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BALDUS - DIRECT
A. YES. I CONSIDER IT ONE OF THE MOST IMPORTANT LAW AND SOCIAL
SCIENCE BOOKS THATS BEEN DONE IN RECENT YEARS. IT WAS
SYSTEMICALLY AND CAREFULLY DONE AND DONE IN A COMPLETE LEGAL
CONTEXT. WITH LUCID INTERPRETATION AND EXPLANATION OF THE
CONSTITUTIONAL AND POLICY IMPLICATIONS OF WHAT PROFESSOR
CHAMBERS FOUND.
Q. WE‘VE HAD SOME TESTIMONY FROM YOU NOW, PROFESSOR BALDUS,
ABOUT YOUR EVALUATION OF OTHERS’ WORK.
LETS RETURN TO THE SUBJECT OF YOUR OWN ONGOING EFFORT
TO RESEARCH THE AREA OF DISCRIMINATION.
YOU MENTIONED THAT THE WORK THAT YOU AND PROFESSOR
COLE HAD DONE RESULTED IN THE ARTICLE WHICH WE’VE TALKED ABOUT
PREVIOUSLY AND ALSO EVENTUALLY RESULTED IN A BOOK.
WHAT WAS THE NAME OF THAT BOOK?
A. "STATISTICAL PROOF OF DISCRIMINATION."
Q. WHEN WAS IT PUBLISHED?
A. IN 1980.
a. LET ME ASK YOU, IF YOU WOULD, TO TURN TO WHAT’S BEEN MARKED
AS DB-S AND ASK IF YOU CAN IDENTIFY THAT DOCUMENT?
A. THAT IS THE TITLE PAGE FOLLOWED BY THE TABLE OF CONTENTS OF
| “STATISTICAL PROOF OF DISCRIMINATION" AUTHORED BY JAMES COLE AND
ME.
Q. AND THAT'S A BOOK YOU PREVIOUSLY REFERRED TO THAT'S THE
CULMINATION OF YOUR RESEARCH?
A. YES.
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BALDUS - DIRECT
@. IF YOU WOULD, BRIEFLY GO THROUGH. STRESS BRIEFLY. THE TABLE
OF CONTENTS OF THIS BOOK AND USE THAT IN HELPING YOU TALK ABOUT
WHAT IS THE SUBJECT MATTER OF THIS WORK?
A. CHAPTER 1 OF THIS BOOK ADDRESSES FIRST THE KINDS OF DECISION
MAKING SYSTEMS FROM WHICH CLAIMS OF DISCRIMINATION ARISE THAT
ARE ULTIMATELY PRESENTED TO COURTS FOR RESOLUTION.
THE SECOND PART OF THAT CHAPTER ADDRESSES THE
SUBSTANTIVE LAW. DEALS WITH DISPARATE TREATMENT. DISPARATE
IMPACT AND THE SOURCES OF AUTHORITY FOR THOSE LEGAL THEORIES,
CIVIL RIGHTS STATUTES, 14TH AMENDMENT. AND IDENTIFIES THE
FACTUAL AND EMPIRICAL ISSUES THAT ARISE FROM THE APPLICATION OF
THESE LEGAL THEORIES TO SPECIFIC CLAIMS OF DISCRIMINATION.
CHAPTERS 2 THROUGH 3, WHICH COVER PAGES 353 THROUGH,
CORRECTION. WHICH COVER PAGES ROMAN NUMERAL VII THROUGH ROMAN
NUMERAL XII OF THE TABLE OF CONTENTS, DEAL WITH THE QUESTION OF
MEASUREMENT, HOW ONE MEASURES THE IMPACT OF A POLICY OR SERIES
OF DECISIONS ON A GROUP OF PEOPLE AND HOW ONE MEASURES
DISPARITIES IN THE TREATMENT OF GROUPS OF PEOPLE. IN THIS
CONTEXT OF THE BOOK, THE FOCUS IS ON MEASURES OF DISPARITY IN
THE TREATMENT OF WOMEN AND MEN, AND BLACKS AND WHITES.
PRINCIPALLY,» BECAUSE THE PRIMARY FOCUS HERE IS IN THE EMPLOYMENT
DISCRIMINATION CONTEXT, WHERE THOSE ARE THE CLASSES THAT ARE
USUALLY ADVERSELY AFFECTED.
THE NOTION IN THESE CHAPTERS IS HOW DOES ONE
SYSTEMICALLY AND RIGOROUSLY ESTABLISH EVIDENCE OF DISPARITIES IN
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TREATMENT WITHOUT ADJUSTMENT FOR ANY OTHER BACKGROUND FACTORS.
SUCH AS QUALIFICATIONS THAT MIGHT AFFECT THE KIND OF INFERENCE
THAT ONE CAN DRAW FROM THAT SORT OF MEASURE.
NOW CHAPTERS VI THROUGH VII, WHICH COVER PAGES 13
THROUGH 15 OF THE TABLE OF CONTENTS. GO ON TO THE NEXT IMPORTANT
QUESTION. THAT IS. HOW DOES ONE TAKE ACCOUNT OF AND CONTROL FOR
BACKGROUND FACTORS THAT HAVE AN OBVIOUS IMPACT ON DECISIONS THAT
ARE BEING CHALLENGED IN AN EMPLOYMENT DISCRIMINATION CONTEXT.
AUALIFICATIONS, EXPERIENCE, TIME ON THE JOB, THESE ARE FACTORS
THAT OBVIOUSLY AFFECT THE WAY IN WHICH PEOPLE ARE TREATED IN AN
EMPLOYMENT CONTEXT. REGARDLESS OF THEIR RACE. AND IT’S :
ESSENTIAL IN EVALUATING THIS SORT OF EVIDENCE TO BE ABLE CONTROL
STATISTICALLY FOR THESE BACKGROUND FACTORS. TO BE ABLE TO HOLD
PEOPLE CONSTANT. TO DETERMINE THAT IF EVERYONE WERE CONSTANT
WITH RESPECT TO THESE FACTORS. WHAT DISPARITIES STILL EXIST
BETWEEN THE TREATMENT OF BLACK EMPLOYEES OR AFPLICANTS AND WHITE
APPLICANTS, OR MEN AND WOMEN. AND THATS WHAT THE FOCUS OF THIS
CHAPTER WAS. IT ATTEMPTS TO DRAW TOGETHER THE STATE OF THE ART
FROM THE SOCIAL SCIENCES THAT IS RELEVANT TO MAKING ADJUSTMENTS
FOR THESE SORTS OF BACKGROUND FACTORS.
CHAPTERS IX AND X DEAL WITH THE QUESTION OF THE
INTERPRETATION OF THE RESULTS THAT ARE FRODUCED BY MULTIVARIATE
ANALYSIS AND BY THE WORD MULTIVARIATE ANALYSIS. I MEAN THE
PROCEDURES THAT ARE USED TO CONTROL FOR THESE SORTS OF
BACKGROUND FACTORS.
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BALDUS - VOIR DIRE
IN DISCRIMINATION LITIGATION, THE CRITICAL EVIDENCE IS
THE RESULT OF MULTIVARIATE STATISTICAL PROCEDURES, AND THE
MEANING OF THOSE NUMBERS IS NOT SELF-EVIDENT. AND THE PURPOSES
OF CHAPTERS IX AND X IS TO PROVIDE GUIDELINES FOR LAWYERS AND
JUDGES TO ASSIST THEM IN THE INTERPRETATION OF THESE NUMBERS, TO
KNOW WHAT THE NUMBERS WILL CARRY IN TERMS OF MAKING INFERENCES
ABOUT WHETHER OR NOT THERE IS IN FACT DISPARATE IMPACT OR
DISPARATE TREATMENT IN A PARTICULAR CONTEXT.
Q. NOW, PROFESSOR BALDUS, YOU EARLIER TESTIFIED THAT IN YOUR
RESEARCH EFFORT WITH PROFESSOR COLE, YOU HAD OBTAINED AND
EVALUATED CERTAIN DATA SETS.
DID YOU USE THAT DATA SET EVALUATION METHOD IN THIS
BOOK?
A. YES. WE TOOK FOUR FACTUAL PROBLEMS AND PUT THEM IN THE
CONTEXT OF LEGAL CLAIMS AND ILLUSTRATED THROUGHOUT THE BOOK THE
ISSUES OF MEASUREMENT, THE ISSUES OF THE SELECTION OF
MULTIVARIATE PROCEDURES, WE ILLUSTRATE EACH OF THOSE QUESTIONS
WITH THE DATA THAT WE HAD FROM THESE FOUR PROBLEMS. FINALLY AT
THE END WE PRESENTED THE RESULTS AS THE KIND OF DATA THAT A
COURT WOULD BE PRESENTED WITH, AND ANALYZED THOSE DATA BY WHAT
WE CONSIDERED THE MOST REASONABLE APPROACH, AND PROVIDED THE
COURT WITH GUIDELINES AND, SUGGESTED HERE. SUGGESTED GUIDELINES
THAT A COURT AND LITIGANTS MIGHT USE IN INTERPRETING NUMBERS OF
THIS TYPE.
@. DID YOU USE ANY DATA SETS THAT BEAR MORE DIRECTLY ON THE
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BALDUS —- DIRECT
MATTERS BEFORE THE COURT HERE IN YOUR BACKGROUND AND PREPARATION
FOR THIS BOOK?
A. WELL. PART OF THE DATA THAT WE USED HERE RELATE TO DATA THAT
WERE DEVELOPED IN AN EARLIER STUDY OF CAPITAL PUNISHMENT.
. THE, ONE OF THE DATA SETS THAT WE USE IN THIS BOOK WAS
GATHERED BY MARVIN WOLFGANG, THE SOCIOLOGIST. THAT THOSE DATA
WERE USED IN LITIGATION IN THE LATE SIXTIES IN A CASE CALLED
MAXWELL V. BISHOP. AND WE THOUGHT IT IMPORTANT TO TAKE A LOOK
AT THOSE DATA. AND WE DID, AND EVALUATED THE APPROACHES THAT
WOULD BE MOST SUITABLE TODAY, GIVEN THE IMPROVEMENTS IN THE
STATE OF THE ART OF STATISTICAL TECHNIQUES IN EVALUATING THOSE
DATA. AND WE PRESENT THOSE IN THE BOOK.
@. LET’S JUST MAKE IT CLEAR FOR THE RECORD. PROFESSOR BALDUS.
YOU TALK ABOUT THOSE DATA. DO YOU MEAN YOU IN THIS CASE AND THE
OTHER THREE GOT SOME CHARTS OR TABLES THAT ILLUSTRATED THE
FINDINGS OF THE PREVIOUS DATA COLLECTORS OR DID YOU GO BEYOND
THAT?
A. NO. WE OBTAINED THE ORIGINAL DATA FILES FROM ALL THESE
CASES. IN THE CASE OF THE SCHOOL FINANCE DATA SET. WE RECEIVED
A GIGANTIC TAPE FROM THE DEPARTMENT OF EDUCATION WITH ALL OF THE
DATE ENCODED IN A TAPE, IN ITS ORIGINAL FORM.
AND WITH RESPECT TO THE OTHER TWO DATA SETS THAT WE
WORKED WITH, WE OBTAINED THE ACTUAL DATA, AND PUT IT INTO THE
COMPUTER AND CONDUCTED EXACTLY THE SAME KIND OF COMPUTER
ANALYSIS THAT WOULD BE APPLICABLE IN SUCH A CASE, AND IN THE
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VERY SAME KIND OF ANALYSIS THAT WE CONDUCTED IN THE STUDY WE’RE
GOING TO BE PRESENTING IN THIS PROCEEDING.
@. I NOTICE YOU AND PROFESSOR COLE ARE LISTED AS CO-AUTHORS OF
THIS BOOK, “STATISTICAL PROOF OF DISCRMINATION.* WHAT WERE YOUR
RESPECTIVE ROLES IN ITS AUTHORSHIP?
A. WELL, JAMES COLE’S PRINCIPAL RESPONSIBILITY WAS MAKING THE
DETERMINATIONS OF WHAT WERE THE MOST SUITABLE APPROACHES,
STATISTICAL APPROACHES, AND RESOLUTION OF METHODOLOGICAL ISSUES
AT A VARIETY OF POINTS ALONG THE WAY. AND ADVISING AS TO THE
PROPER INTERPRETATION THAT COULD BE PLACED ON THE FINAL NUMBERS.
THE PRINCIPAL DRAFTING OF THE WORK WAS DONE BY ME,
WITH HEAVY INPUT BY JAMES COLE.
@. IS YOUR BOOK, "STATISTICAL PROOF OF DISCRIMINATION" STILL IN
PRINT? |
A. YES.
@. HAS IT EVER BEEN MODIFIED IN ANY WAY?
A. 1T“S BEEN MODIFIED TO THE EXTENT THAT EACH YEAR WE PRODUCE
AN UPDATE TO THE BOOK. WHICH INVOLVES READING ALL OF THE
DISCRIMINATION CASES THAT HAVE BEEN DECIDED PRINCIPALLY BY THE
FEDERAL COURTS WITHIN THE LAST YEAR, SYNTHESIZING THOSE, AND
IDENTIFYING WHAT NEW DEVELOPMENTS, WHAT NEW PROBLEMS HAVE
OCCURRED IN THE TREATMENT OF THIS SORT OF DATA IN DISCRIMINATION
CASES, AND PRESENTING THOSE DATA IN OUR SUPPLEMENT.
THE PRINCIPAL PURPOSE OF THE SUPPLEMENT IS TO PRESENT
AN ONGOING EVALUATION OF HOW THE COURTS ARE HANDLING THESE SORTS
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OF DATA. AND ALSO TO PROVIDE EXTENSIVE DOCUMENTATION THAT JUDGES
AND LAWYERS CAN USE TO FIND THE RELEVANT AUTHORITIES AND
EXAMPLES IN THE CASE LAW.
G. DO YOU KNOW WHAT THE PROFESSIONAL RECEPTION OF YOUR WORK HAS
BEEN?
A. TO MY KNOWLEDGE, ITS BEEN VERY GOOD.
@. HAS IT EVER BEEN RELIED UPON OR CITED BY A COURT OF LAW?
A. YES. IT HAS, SEVERAL OCCASIONS.
@. PROFESSOR BALDUS, LET ME ASK YOU IF YOU WOULD TURN TO WHATS
BEEN MARKED AS DB-6 FOR IDENTIFICATION. AND ASK IF YOU COULD
IDENTIFY THAT DOCUMENT?
A. EXHIBIT DB-6 IS A LISTING OF CITATIONS TO THE BOOK,
"STATISTICAL PROOF OF DISCRIMINATION," BY FEDERAL COURTS AND ONE
STATE COURT THAT WERE FOUND IN LEXIS AS A RESULT OF A RECENT
SEARCH OF THE LEXIS SYSTEM.
Q. HAVE YOU EXAMINED THIS DOCUMENT?
A. YES, I HAVE.
@. AND TO YOUR KNOWLEDGE DOES IT ACCURATELY REFLECT THE LEGAL
OPINIONS THAT ARE KNOWN TO YOU THAT HAVE CITED YOUR WORK?
A. YES, IT DOES.
MR. BOGER: YOUR HONOR, WE WOULD ASK THE COURT TO TAKE
JUDICIAL NOTICE OF THESE CASES IN SUPPORT OF PROFESSOR BALDUS-
QUALIFICATIONS. I DON’T THINK WE NEED TO MOVE THE ADMISSION OF
THIS DOCUMENT INTO EVIDENCE.
THE COURT: DO YOU HAVE ANY OBJECTION TO THAT. MS,
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BALDUS -~ DIRECT
WESTMORELAND?
MS. WESTMORELAND: YOUR HONOR. IF IT’S JUST A CASE OF
TAKING JUDICIAL NOTICE OF CASES, I THINK THAT’S PROBABLY A POINT
FOR ARGUMENT BY COUNSEL WHICH WE CAN DO AT A LATER TIME. I SEE
NO NEED TO TAKE JUDICIAL NOTICE AS, PART OF PROFESSOR BALDUS”
QUALIFICATIONS AT THIS TIME.
THE COURT: ONCE AGAIN, IT IS THE ELEMENT OF RELIANCE
ON HIS WORK WHICH WE ARE CONCERNED WITH HERE AND I WILL
JUDICIALLY NOTICE THAT THE COURTS LISTED AND THE CASES CITED
HAVE TO SOME EXTENT RELIED UPON HIS WORK.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
@. PROFESSOR BALDUS, WE‘VE NOT HAD --
THE COURT: THAT IS THE REPRESENTATION, IS IT NOT,
THAT THE COURT RELIED UPON IT. NOT THAT IT CITED IT AS SAYING
THAT SOMEBODY ELSE RELIED UPON IT?
MR. BOGER: MY UNDERSTANDING, YOUR HONOR, AND I HAVE
NOT READ EACH OF THESE CASES. THAT THE COURT HAS RELIED IN SOME
MEASURE ON IT. OF COURSE. WHEN A COURT CITES A WORK, THERE ARE
VARIOUS DEGREES OF RELIANCE. BUT THESE ARE NOT CITATIONS BY A
COURT WHICH THEN REFUTES PROFESSOR BALDUS. AND INDEED I“VE HAD
ONE OF MY SUMMARY CLERK’S CHECK JUST THAT POINT.
THE COURT: ALL RIGHT.
MR. BOGER: AND I THINK WE CAN REPRESENT THAT WE KNOW
OF NO SUCH WORK THAT DO CITE BALDUS TO REFUTE HIM THAT WE-VE
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BALDUS - DIRECT
OMITTED FROM THIS LIST.
THE COURT: ALL RIGHT.
BY MR. BOGER:
@. PROFESSOR BALDUS, WE’VE TALKED NOW A BIT ABOUT YOUR
QUALIFICATIONS AND BACKGROUND IN THE AREA OF LAW, THE AREA OF
THE EMPIRICAL RESEARCH INTO LEGAL QUESTIONS.
I WANT TO DRAW YOUR ATTENTION MORE PARTICULARLY TO THE
QUESTION OF THE LEGAL ISSUE OF CAPITAL PUNISHMENT.
HAVE YOU EVER DONE ANY RESEARCH OR WRITING IN THE AREA
OF CAPITAL PUNISHMENT?
A. YES, I HAVE. THE —
@. ALL RIGHT. EXCUSE ME. IF YOU’LL TELL US ABOUT THAT?
A. VERY WELL.
THE FIRST WORK I DID I REFERRED TO EARLIER WHERE I
REANALYZED A DATA SET THAT HAD BEEN COLLECTED BY MARVIN WOLFGANG
WHICH WAS THE MOST EXTENSIVE DATA SET ON CAPITAL PUNISHMENT IN
EXISTENCE AT THAT TIME.
0. WHAT WAS THE NATURE OF THAT DATA SET, JUST BRIEFLY FOR THE
COURT?
A. WELL, IT WAS A DATA SET INVOLVING FIFTY CASES AND EACH OF
THOSE CASES WAS AN OFFENDER CONVICTED OF RAPE IN THE STATE OF
ARKANSAS BETWEEN THE PERIOD OF 1958 AND, AND THE MID-SIXTIES.
AND IN THAT DATA SET. THERE WAS A VARIABLE THAT SPECIFIED
WHETHER THE PERSON HAD BEEN SENTENCED TO DEATH, SENTENCED TO
LIFE AND ALSO INFORMATION ON THE RACIAL CHARACTERISTICS OF THE
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OFFENDERS. AS WELL AS INFORMATION ON OVER A HUNDRED AND FIFTY
BACKGROUND FACTORS SUCH AS THE TYPE OF CRIME. WHETHER THERE WERE
OTHER CONTEMPORANEOUS OFFENSES. LEVEL OF VIOLENCE. THAT SORT OF
INFORMATION.
THE SECOND WORK THAT I UNDERTOOK ON THE SUBJECT OF
CAPITAL PUNISHMENT WAS AN ANALYSIS OF WORK THAT HAD BEEN DONE BY
TWO OTHER SCHOLARS.
IN 1975. UNITED STATES SUPREME COURT WAS VERY MUCH
CONCERNED IN TRYING TO RESOLVE THE ISSUE OF WHETHER CAPITAL
PUNISHMENT WAS CRUEL AND UNUSUAL WITH THE QUESTION OF WHETHER OR
NOT IT HAD A DETERRENT EFFECT, WHETHER THERE WAS SOME SOCIAL
UTILITY THAT WOULD JUSTIFY THE APPLICATION OF CAPITAL
PUNISHMENT. AND THERE WAS IN EXISTENCE A SUBSTANTIAL BODY OF
WORK WHICH SUGGESTED THAT CAPITAL PUNISHMENT HAD NO MARGINAL
DETERRENT EFFECTS OR ANY THAT WE COULD OBSERVE. AND IN 1973 AN
ECONOMIST BY THE NAME OF ISAAC EHRLICK PRODUCED A WORK USING
MULTIPLE-REGRESSION ANALYSIS, WHICH PURPORTED TO SHOW THAT
CAPITAL PUNISHMENT HAD A SIGNIFICANT DETERRENT EFFECT AND FOR
EVERY PERSON WHO HAD BEEN EXECUTED, THE CONSEQUENCE WAS THAT
EIGHT LIVES HAD BEEN SAVED. AND THAT ARTICLE WAS INTRODUCED IN
THE PROCEEDINGS IN THE UNITED STATES SUPREME COURT AT THAT TIME.
AND BECAUSE OF THE FORUM IN WHICH THIS WAS PRESENTED. IT
QUICKENED THE INTEREST OF SCHOLARS IN THE FIELD WHO ARE
CONCERNED WITH THE WAY IN WHICH COURTS USE SOCIAL SCIENCE DATA.
AND JAMES COLE AND I TURNED OUR ATTENTION TO THIS
78
BALDUS - DIRECT
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ARTICLE, AND BEGAN TO EXAMINE ITS STRENGTHS AND WEAKNESSES, AND
THE STRENGTHS AND WEAKNESSES OF THE OTHER RESEARCH THAT HAD BEEN 2
3 |DONE PREVIOUSLY. AND THE PRINCIPAL WORK THAT HAD BEEN DONE
4 |BEFORE THAT TIME HAD COME UNDER THE PEN OF A MAN NAMED THORSTON
4 Ss | SELLON WHO HAD PROVIDED THE PRINCIPAL WRITINGS THAT WERE RELIED
» 4 |ON BY HERBERT WEXLER WHEN THEY PRODUCED THE MODEL PENAL CODE IN
7 |THE EARLY SIXTIES.
8 AND BASICALLY. EHRLICK SAID THAT THE WORK OF SELLON
9 |WAS COMPLETELY UNSOPHISTICATED AND COMPLETELY UNRELIABLE. AND
10 |WE EVALUATED SELLON AND CONCLUDED THAT WAS NOT COMPLETELY
11 |UNRELIABLE: IT WAS NOT THE MOST SOPHISTICATED BUT IT STILL
12 |CARRIED A LOT OF INFORMATION THAT WAS RELEVANT, AND THAT THE
13 |WORK OF ISAAC EHRLICK HAD CERTAIN FLAWS WHICH LIMITED ITS POWER
14 |FOR PROVIDING REAL INSIGHT INTO WHAT WAS HAPPENING.
15 |@. WHAT KIND OF EVALUATIONS, STRENGTHS AND WEAKNESSES WERE
16 |THESE? WERE THESE METHODOLOGICAL?
17 |A. THEY WERE PRINCIPALLY RESEARCH DESIGN PROBLEMS THAT WE
18 |FOCUSED ON AND THEY --
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A. YES. IT WAS PUBLISHED IN THE YALE LAW JOURNAL.
21 @. WAS THERE A PARTICULAR PUBLISHING EVENT THAT CALLED THAT
22 |DOCUMENT FORTH?
23 |A. YES. THE VOLUME IN WHICH IT WAS PUBLISHED, NUMBER 8%. WAS A
24 |SYMPOSIUM DEVOTED TO THE SUBJECT OF CAPITAL PUNISHMENT, WITH
2% |SPECIFIC REFERENCE TO THE ISSUE OF DETERRENCE. WHAT DID THE
——— — r— — —— ——— . T— ——— — —— fo — ———— — —— —
79
BALDUS - DIRECT
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STATISTICAL PROOF THAT FOCUSED ON THAT QUESTION HAVE TO TELL US.
2 HOW RELIABLE WAS IT. COULD WE PRODUCE A REASONABLE INFERENCE
3 ABOUT THE MARGINAL DETERRENT EFFECT AS A RESULT OF STATISTICAL
4 RESEARCH THAT HAD BEEN DONE UP TO THAT TIME. AND THIS WAS ONE
3S OF THREE OR FOUR ARTICLES THAT WAS PRESENTED IN THIS ANALYSIS,
% & OR ARTICLE.
7 @. YOU INDICATED IN THAT ARTICLE CHOSEN BY THE YALE LAW JOURNAL
8 FOR THIS SYMPOSIUM THAT YOU CRITIQUED EHRLICK’S WORK AND FOUND
4 SOME DEFICIENCIES IN IT?
10 A. YES, THERE WERE OREAT STRENGTHS TO THE WORK AS WELL. BUT IT
11 DIDN“T DO QUITE AS MUCH AS HE PURPORTED IT DID.
12 @. DO YOU KNOW WHETHER SUBSEQUENT TO YOUR OWN ANALYSIS WHICH
13 FOUND THESE WEAKNESS WHETHER ANY ADDITIONAL EVALUATION OF
14 PROFESSOR EHRLICK’S WORK WAS DONE?
15 A. YES, THE NATIONAL ACADEMY OF SCIENCES CONVENED A PANEL WHICH
146 ADDRESSED ITSELF TO THE QUESTION OF THE RESEARCH BEARING ON THE
17 MATTER OF CAPITAL PUNISHMENT, AND THEY FOCUSED VERY HARD ON THE.
18 ALL OF THE EXISTING WORK. AND THE GENERAL CONCLUSION WAS THAT
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20 NOT CARRY THE CONCLUSION THAT HE ADVANCED, FOR METHODOLOGICAL
21 AND STATISTICAL REASONS.
B @. LET ME ASK YOU IF YOU WOULD. TO TURN TO WHAT WE“VE MARKED AS
23 DB-7 FOR IDENTIFICATION AND ASK IF YOU CAN IDENTIFY THAT
24 DOCUMENT?
23 A. YES. THAT”S A COPY OF THE ARTICLE THAT I WAS REFERRING TO.
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THAT IS CALLED "A COMPARISON OF THE WORK OF THORSTON SELLON AND
ISAAC EHRLICK ON THE DETERRENT EFFECT OF CAPITAL PUNISHMENT.* BY
JAMES COLE AND ME. |
@. WHAT WERE YOUR RESPECTIVE ROLES OF PROFESSOR COLE AND
YOURSELF IN THE DRAFTING OF THIS ARTICLE?
A. IT WAS THE SAME SORT OF RELATIONSHIP THAT WE HAD IN THE
PAST: THAT WE WORKED OUT THE PROBLEMS IN THE ANALYSIS AND I
WOULD BE THE PRINCIPAL DRAFTSMAN, SUBJECT TO EXTENSIVE REWRITING
AND REVISION.
@. ALL RIGHT. PROFESSOR BALDUS, YOU‘VE TOLD US ABOUT TWO
SUBJECTS IN WHICH YOU’VE UNDERTAKEN EMPIRICAL RESEARCH OR
EMPIRICAL ANALYSIS IN THE AREA OF CAPITAL PUNISHMENT. ONE WAS
YOUR REANALYSIS OF THE WOLFGANG DATA. AND THE OTHER WAS THE
EVALUATION OF EHRLICK‘S WORK AND SELLON‘S WORK.
HAVE YOU DONE ANY ADDITIONAL RESEARCH IN THE AREA OF
CAPITAL PUNISHMENT?
A. YES.
I WOULD LIKE TO JUST CORRECT THE RECORD FOR ONE POINT
THOUGH, THAT THAT ANALYSIS OF SELLON AND EHRLICK WORK DID NOT
INVOLVE ANY REANALYSIS OF DATA. IT WAS, SIMPLY INVOLVED A
READING OF THEIR REPORTS AND AN EVALUATION OF THEIR CONCLUSIONS
BASED UPON THE DATA THEY HAD COLLECTED.
THE COURT: THEIR CONCLUSIONS OR THEIR PROCESS?
THE WITNESS: BOTH. BOTH. THE CONCLUSIONS AND THE
PROCESS. BUT WE DID NOT ACCESS ——
81
BALDUS = DIRECT
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THE COURT: OH.
THE WITNESS: =-— TO THE DATA. ACTUALLY. MR. EHRLICK
WOULD NOT RELEASE HIS DATA. $0 IT WAS IMPOSSIBLE FOR US TO GET
THE DATA TO DO THE ANALYSIS OURSELVES. $0 I JUST WANTED TO MAKE
IT CLEAR THAT WE HAD NOT DONE A REANALYSIS OF THOSE DATA. WE
SIMPLY CRITIQUED THE METHODS THAT THEY USED AND OFFERED A
DIFFERENT SET OF INTERPRETATIONS ON THE RESULTS THAT THEY
PRODUCED, WHEREAS THE NEXT PROJECT THAT WE UNDERTOOK DID INVOLVE
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A REANALYSIS OF A DATA SET. CONCERNING CAPITAL PUNISHMENT.
10 |BY MR. BOGER:
11 |@. AND WHAT WAS THE DATA SET?
12 |A. THIS WAS A DATA SET THAT HAD BEEN COLLECTED BY LAW STUDENTS
13 |AT STANFORD UNIVERSITY IN THE LATE FIFTIES AND SIXTIES. AND IT
14 |CONCERNED APPROXIMATELY 330 CASES INVOLVING A MURDER CONVICTION
13 |IN WHICH A JURY HAD BEEN ASKED TO PASS ON THE GUESTION OF A LIFE
16 |OR DEATH SENTENCE. AND THE RESULTS OF THESE DATA AND. THE
17 |RESULTS OF THE ANALYSIS OF THESE DATA, RATHER, HAD BEEN
18 |PUBLISHED IN AN EXTENSIVE FULL ISSUE TREATMENT OF THEM IN THE
% 19 |STANFORD LAW REVIEW IN ABOUT 1970 OR “69.
20 AND WE OBTAINED A COPY OF THESE DATA TO DEVELOP AND
21 |TEST SOME IDEAS THAT WE HAD BEEN WORKING ON AT THIS TIME.
22 |@. AND WHAT WERE THOSE IDEAS AND WHY DID YOU NEED THAT DATA?
23 |A. AFTER GREGG V. GEORGIA WAS DECIDED, I CAME TO THE CONCLUSION
24 |THAT THE METHODOLOGY THAT EXISTED AND KINDS OF DATA THAT WERE
2% |AVAILABLE MADE IT IMPOSSIBLE TO PRODUCE ANY UNAMBIGUOUS ANSWERS
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BALDUS - DIRECT
ABOUT THE QUESTION OF DETERRENCE.
HOWEVER, IT OCCURRED TO ME IN PART ON THE BASIS OF THE
WORK THAT MARVIN WOLFGANG HAD DONE AND. ALSO ON THE BASIS OF THE
WORK THAT HAD BEEN PUBLISHED IN THE STANFORD LAW REVIEW AND THE
WORK WE HAD DONE IN OUR BOOK ON PROOF OF STATISTICAL
DISCRIMINATION, THAT THE STATE OF THE ART, THE STATISTICAL
METHODOLOGY. DID OFFER PROMISE FOR REAL INSIGHT INTO THE WAY IN
WHICH CAPITAL PUNISHMENT STATUTES WERE APPLIED, WHETHER THEY
WERE APPLIED IN AN EVEN-HANDED FASHION. WHETHER THEY WERE
APPLIED IN A NON-DISCRIMINATORY FASHION. AND GREGG V. GEORGIA
RAISED THESE QUESTIONS AND IDENTIFIED THEM AS IMPORTANT. BOTH
FURMAN AND GREGG HAD FOCUSED ON THE QUESTION OF WHETHER OR NOT
EVEN-HANDEDNESS WAS PRESENT IN THE SYSTEM WAS EXTREMELY
IMPORTANT.
THEY HAD ALSO FOCUSED ON THE QUESTION OF WHETHER THERE
WAS RACIAL DISCRIMINATION OPERATING IN A SYSTEM.
THE PREMISE OF GREGG WAS THAT THESE, THAT THE
PROCEDURAL SAFEGUARDS PROVIDED IN GEORGIA AND IN OTHER
JURISDICTIONS IN THEIR CASES. PROVIDED GUARANTEES AGAINST THE
LIKELIHOOD OF THERE BEING UNEVENNESS, ARBITRARINESS AND
DISCRIMINATION. AND WE SET OUT TO DEVELOP A RESEARCH PROJECT
THAT WOULD BE ABLE TO DETERMINE THE EXTENT TO WHICH THESE
EXPECTATIONS OF THE COURT WILL BE REALIZED.
THE DIFFICULTY WAS THAT THERE WAS GOOD STATISTICAL
METHODOLOGY, GOOD MEASURES TO FOCUS ON THE QUESTION OF
83
BALDUS = DIRECT
Pr
y DISCRIMINATION AND DISPARATE TREATMENT.
2 HOWEVER, ON THE QUESTION OF EXCESSIVENESS. AND
3 DISPROPORTIONALITY, THERE WERE IN PLACE AT THAT TIME NO CLEARLY
4 ACCEPTED STATISTICAL PROCEDURES FOR ADDRESSING THAT QUESTION.
3 @. LET ME INTERRUPT, PROFESSOR BALDUS?
% & A. YES.
7 2. AND ASK YOU WHAT YOU MEAN BY EXCESSIVENESS AND
8 DISPROPORTIONALITY?
9 A. AS DEVELOPED IN FURMAN V. GEORGIA, AND ALSO AS EMBODIED IN
10 STATE STATUTES CONCERNING CAPITAL PUNISHMENT, OF WHICH GEORGIA
11 IS A LEADING EXAMPLE, A SENTENCE IS INAPPROPRIATE, DEATH
12 SENTENCE IS INAPPROPRIATE. IF IT IS EXCESSIVE OR
13 DISPROPORTIONATE. AND BY THAT IS MEANT THAT THAT DEARTH
14 SENTENCE CANNOT BE MEANINGFULLY DISTINGUISHED FROM OTHER CASES
15 IN WHICH LIFE SENTENCES ARE NORMALLY IMPOSED.
16 THE SUPREME COURT IN BOTH FURMAN V. GEORGIA AND GREGG
17 V. GEORGIA SUGGESTED THAT THAT WAS THE APPROPRIATE TEST TO
18 DETERMINE WHETHER A SENTENCE WAS EXCESSIVE.
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b THE GEORGIA SUPREME COURT IN APPLYING THIS CONCEPT HAS
20 SUGGESTED THAT IT’S A NOTION OF COMPARATIVE EXCESSIVENESS. YOU
21 MAKE A COMPARISON OF A DEATH CASE AND OTHER CASES. AND IF IT
22 CANT BE DISTINGUISHED, THEN IT’S AN EXCESSIVE SENTENCE.
23 Q. I WAS GOING TO ASK YOU THE QUESTION WHO IS IT UNDER THE
24 GEORGIA SYSTEM. IF YOU KNOW. THAT IS SUPPOSED TO MAKE THE
235 JUDGMENT ABOUT EXCESSIVENESS OR DISPROPORTIONALITY?
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BALDUS - DIRECT
A. THE GEORGIA SUBSTITUTE PROVIDES THAT THERE WILL BE A
MANDATORY APPEAL ON EVERY DEATH SENTENCE CASE, AND ONE OF THE
QUESTIONS THAT THE SUPREME COURT MUST DETERMINE IF THE CASE IS
NOT. THE DEATH SENTENCE IS NOT VACATED ON SOME OTHER GROUNDS,
BEFORE THEY CAN ENTER A FINAL ORDER, THEY MUST MAKE A
DETERMINATION AS TO WHETHER OR NOT THAT DEATH SENTENCE IS
EXCESSIVE OR DISPROPORTIONATE WITHIN THE MEANING OF THE GEORGIA
STATUTE.
@. DID THAT STATUTORY OBLIGATION SUGGEST TO YOU ANY EMPIRICAL
RESEARCH QUESTIONS?
A. YES. IT DID. BECAUSE WE HAD READ THE GEORGIA JURISPRUDENCE
ON THIS QUESTION AND EVALUATED THE WAY IN WHICH THEY HAD
CONCEPTUAL IZED THE QUESTION, THE WAY IN WHICH THEY WENT ABOUT
ANSWERING THE QUESTION AS TO WHETHER OR NOT ANY GIVEN DEATH
SENTENCE WAS EXCESSIVE OR DISPROPORTIONATE WITHIN THE MEANING OF
THEIR STATUTE.
@. WELL, WHAT THEN DID YOU DO BY WAY OF ACADEMIC PURSUIT IN
RESPONSE TO THAT PROBLEM THAT YOU HAD NOTED OR THAT QUESTION
THAT HAD BEEN RAISED?
A. WE PERCEIVED THAT THERE WAS NO APPROPRIATE METHODOLOGY TO
ADDRESS THIS QUESTION IN A SYSTEMATIC STATISTICAL FASHION. WE
CONSIDERED THAT A CHALLENGE, AND SET OUT TO TRY TO DEVELOP SUCH
A METHODOLOGY.
WE DID NOT, HOWEVER, WANT TO COLLECT A LARGE DATA SET
FOR THAT PURPOSE, SO WE OBTAINED ACCESS TO THIS FPRE-FURMAN DATA
BALDUS ~ DIRECT
SET THAT HAD BEEN DEVELOPED BY THE STANFORD LAW REVIEW IN THE
FIFTIES AND SIXTIES. AND WE USED THAT DATA SET, TO TRY OUT THE
IDEAS IN A NEW METHODOLOGY THAT WE WERE PROPOSING.
@. THIS WAS A METHODOLOGY PRESCRIPTIVELY TO BE EMPLOYED BY
STATE APPELLATE COURTS. 1S THAT —-
A. YES. IT WAS A METHODOLOGY. A SUGGESTED METHODOLOGY THAT
MIGHT BE OF ASSISTANCE TO STATE APPELLATE COURTS IN REVIEWING
THE DEATH CASES THAT COME BEFORE THEM WHEN THEY HAVE SUCH A
STATUTE. THE GEORGIA STATUTE REQUIRING REVIEW OF DEATH SENTENCE
CASES FOR EXCESSIVENESS AND DISPROPORTIONALITY HAS BEEN COPIED
VERBATIM BY SOME TWENTY OTHER JURISDICTIONS. SO THIS IS A
PROBLEM THAT IS NOT OF IMPORTANCE SIMPLY TO THE GEORGIA SUPREME
COURT BUT IS A PROBLEM OF INTEREST TO MANY SUPREME COURTS IN
DEATH SENTENCING JURISDICTIONS. |
@. DID YOU DEVELOP SOME METHODOLOGIES THROUGH YOUR RESEARCH?
A. YES, WE DID.
@. DID YOU REFLECT OR PUBLISH ANYTHING TO INDICATE WHAT THOSE
METHODS MIGHT BE?
A. YES, WE PUBLISHED AN ARTICLE IN THE STANFORD LAW REVIEW
WHICH PRESENTED THE LEGAL BACKGROUND OF THIS QUESTION, AND
EXPLAINED MUCH OF WHAT I“VE STATED HERE ALREADY, WHAT THE
DOCTRINE WAS THAT CONTROLLED THIS QUESTION AND WHAT THE
EMPIRICAL QUESTIONS WERE THAT AROSE BY THE RESULT OF THESE
PARTICULAR LAWS, AND THEN PROCEEDED TO DEVELOP A SET OF
ALTERNATIVE APPROACHES THAT A COURT MIGHT USE IN TRYING TO SHED
BALDUS - VOIR DIRE
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y LIGHT ON THE QUESTION OF WHETHER OR NOT A GIVEN DEATH SENTENCE
IS EXCESSIVE OR DISPROPORTIONATE.
R. LET ME ASK YOU TO TURN TO WHAT’S BEEN MARKED DB-8 FOR
IDENTIFICATION. AND ASK YOU IF YOU CAN IDENTIFY THAT DOCUMENT?
A. DB-8 IS A COPY OF AN ARTICLE ENTITLED "IDENTIFYING
a COMPARATIVELY EXCESSIVE SENTENCES OF DEATH: A QUANTITATIVE
APPROACH." BY CHARLES PULASKI. GEORGE WOODWORTH, FRED KYLE AND
ME.
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@. IS THAT THE ARTICLE TO WHICH YOU PREVIOUSLY TESTIFIED?
10 A. YES.
11 QR. DOES THIS ARTICLE INVOLVING COMPARATIVELY EXCESSIVE
12. SENTENCES OF DEATH SUGGEST METHODS THAT INCLUDE CROSS
13 TABULATIONS OR OTHER MULTIVARIATE ANALYSES? DOES IT INCLUDE
14 REGRESSIONS AND SO FORTH?
13 A. YES, THE PROCEDURES THAT WE DEVELOPED ARE VERY MUCH ANALOGUS
16 TO THE PROCEDURES THAT ARE USED IN "PROOF OF DISCRIMINATION.™
17 THE BASIC CHALLENGE IN BOTH APPROACHES IS TO IDENTIFY GROUPS OF
18 COMPARABLE CASES. IN THE DISCRIMINATION CONTEXT YOURE
* 1? INTERESTED IN WHETHER OR NOT MEN OR WOMEN ARE BEING TREATED
20 WITHIN GROUPS OF COMPARABLE CASES. IN THIS RESEARCH, IN THIS
21 FOCUS ON EXCESSIVENESS. YOUZRE JUST INTERESTED IN THE OVERALL
22 FREQUENCY WITH WHICH PEOPLE ARE BEING SENTENCED TO DEATH. AMONG
23 GROUPS OF COMFARABLE CASES.
24 SO THE ISSUES OF METHODOLOGY ARE VERY SIMILAR AND THEY
25 INVOLVE IN TERMS OF ACTUAL APPLICATION THE USE DF REGRESSION
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BALDUS - DIRECT
METHODS, THEY CAN INVOLVE THAT. AND THEY CAN ALSO INVOLVE THE
USE OF MUCH SIMPLER SORTS OF MATCHING PROCEDURES THAT ARE
COMPARABLE TO CROSS TABULATION METHODS.
A. WHAT WERE THE RESPECTIVE ROLES OF YOURSELF AND OTHER
CO~-AUTHORS IN THE AUTHORSHIP OF THIS DOCUMENT?
A. CHARLES PULASKI, WHO WAS A CO-AUTHOR IN THIS STUDY. IS A
PROFESSOR OF LAW CURRENTLY AT ARIZONA STATE UNIVERSITY. AND HIS
PRINCIPAL AREA OF EXPERTISE IS CRIMINAL PROCEDURE AND HAS HAD A
CONTINUING INTEREST IN CAPITAL PUNISHMENT. HE PRINCIPALLY WROTE
THE BEGINNING SECTION OF THIS ARTICLE THAT DEALS WITH THE
THEORETICAL AND LEGAL BACKGROUND.
AND GEORGE WOODWORTH, WHO COLLABORATED WITH US ON THIS
PROJECT AS CO-AUTHOR, WAS PRINCIPALLY RESPONSIBLE FOR THE
DEVELOPMENT OF THE STATISTICAL METHODOLOGY. AND HE WROTE THE
SECTIONS OF THE PAPER THAT DEAL WITH THE MORE TECHNICAL ASPECTS
OF THE STATISTICAL METHODOLOGY THAT WE USED.
AND I DRAFTED THE BULK OF THE EMPIRICAL COMPONENT OF
THE REPORT. AGAIN, SUBJECT TO CONSTANT INTERPLAY AND CHANGE BY
PROFESSORS PULASKI AND WOODWORTH.
@. DO YOU KNOW WHAT THE PROFESSIONAL RECEPTION OF THIS ARTICLE
HAS BEEN?
A. YES, IT’S BEEN WELL RECEIVED TO THE BEST OF MY KNOWLEDGE AS
AN INTERESTING AND USEFUL APPROACH TO AN IMPORTANT PROBLEM.
|@. HAS IT EVER BEEN ADAPTED OR EXCERPTED IN ANYPLACE?
A. YES. IT HAS. IT’S BEEN CITED AND ALSO EXCERPTS OF IT HAVE
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BALDUS - DIRECT
BEEN PUBLISHED.
@. LET ME ASK YOU, IF YOU WOULD TO TURN TO WHAT’S BEEN MARKED
FOR IDENTIFICATION AS DB-9 AND ASK IF YOU‘LL IDENTIFY THAT
DOCUMENT?
A. YES. DB~9 IS A, A CHAPTER IN A BOOK CALLED "THE
USE /NONUSE/MISUSE OF APPLIED SOCIAL RESEARCH IN THE COURTS"
EDITED BY MICHAEL SAKS, AND CHARLES BARON.
R. WHO IS MICHAEL SAKS?
A. MICHAEL SAKS IS A PSYCHOLOGIST WHO HAS DEVOTED HIS CAREER TO
THE STUDY OF THE USE OF SOCIAL SCIENCE EVIDENCE IN LEGAL
CONTEXT.
@. WHERE IS HE NOW?
A. HE’S AT BOSTON COLLEGE.
@. AND CHARLES BARON?
A. CHARLES BARON IS A LAW PROFESSOR WHO HAS SIMILAR INTERESTS.
HES AT BOSTON COLLEGE. ALSO.
@. AND WHATS REFLECTED IN THIS DOCUMENT, DB-97
A. THIS DOCUMENT REPRESENTS A DISTILLATION OF THE ARTICLE
THATS IN THE STANFORD LAW REVIEW.
1 WAS INVITED TO COME TO A CONFERENCE THAT WAS
CONCERNED WITH THE USE AND MISUSE AND NONUSE OF SOCIAL SCIENCE
EVIDENCE IN COURT, AND I, THIS IS THE PAPER 1 PRESENTED ON
BEHALF OF MYSELF AND PROFESSORS WOODWORTH AND PULASKI. AND IT
WAS ULTIMATELY PRESENTED AS PART OF THE PROCEEDINGS OF THIS
STUDY IN THIS FORM.
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Q. WAS THIS A PUBLISHED WORK EVENTUALLY?
A. YES. THIS BOOK WAS PUBLISHED BY A.P.T. ASSOCIATES.
©. DO YOU HAVE ANY ADDITIONAL PUBLICATIONS INVOLVING EMPIRICAL
RESEARCH IN THE AREA OF CAPITAL PUNISHMENT?
A. YES, I HAVE ONE OTHER PUBLICATION. AGAIN IT’S A JOINT
PUBLICATION WITH PROFESSOR WOODWORTH AND PULASKI. THAT AROSE OUT
OF THE ANALYSIS OF WHAT WE CALL IN THIS CURRENT CONTEXT THE
PROCEDURAL REFORM STUDY. THAT IS A MANUSCRIPT THAT IS AN
EVALUATION OF GEORGIA SUPREME COURT‘S CONDUCT OF PROPORTIONALITY
REVIEW AND IT’S GOING TO APPEAR IN A FALL SYMPOSIUM IN THE
JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY.
@. WHAT IS THE CONTEXT OF THAT SYMPOSIUM?
A. THIS IS A SYMPOSIUM BEING EDITED BY MARVIN WOLFGANG AND
MICHAEL MELTINER AND IT FOCUSES ON ISSUES OF CAPITAL PUNISHMENT,
AND WE WERE INVITED TO SUBMIT AN ARTICLE TO THE SYMPOSIUM, WHICH
WE DID. THIS ARTICLE IM REFERRING TO.
Q. JUST SC THE RECORD IS CLEAR, YOU MENTIONED PROFESSOR
WOLFGANG BEFORE, WHO IS MICHAEL MELTINER?
A. MICAHEL MELTZNER IS A DEAN OF NORTHEASTERN COLLEGE IN
BOSTON.
@. ALL RIGHT. IS THIS FORTHCOMING ARTICLE REFLECTED ANYWHERE
IN YOUR RESUME?
A. YES. IT IS.
@. ALL RIGHT. THANK YOU.
LET ME TURN. PROFESSOR BALDUS. FROM YOUR ACADEMIC
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BALDUS - DIRECT
PUBLICATIONS TO YOUR RESPONSIBILITIES AS PROFESSOR OF LAW.
HAVE YOU. NON-RESEARCH RESPONSIBILITIES FOR A
PROFESSOR OF LAW, HAVE YOU EVER BEEN TAUGHT COURSES THAT RELATE
TO THE QUESTIONS THAT ARE BEFORE THE COURT IN THIS HEARING?
THE COURT: HAS HE EVER BEEN TAUGHT OR HAS HE --
MR. BOGER: I“M SORRY. HAS HE EVER TAUGHT.
THE WITNESS: YES.
BY MR. BOGER1
R. WHAT ARE THOSE COURSES?
A. EVIDENCE, INCOME MAINTENANCE, SCIENTIFIC EVIDENCE,
DISCRIMINATION LAW. CAPITAL PUNISHMENT.
@. LET ME FOCUS ON THREE OF THOSE. SCIENTIFIC EVIDENCE.
WHEN DID YOU TEACH THIS COURSE?
A. 1 TAUGHT THIS COURSE, BEGAN TEACHING THIS COURSE IN 1976,
Q. WHERE WAS THAT?
A. AT THE UNIVERSITY OF IOWA COLLEGE OF LAW.
@. AND WHAT IS THE CONTENT OF THAT COURSE?
A. THE COURSE FOCUSES ON THREE BASIC QUESTIONS. THE FIRST IS
THE CONTRAST IN APPROACHES BETWEEN LAW AND SCIENCE TO PROOF OF
FACT.
THE SECOND PART OF IT, THE COURSE FOCUSES ON
TRADITIONAL MATTERS OF FORENSIC SCIENCE. FINGERPRINTS, LIE
DETECTORS, THEIR RELIABILITY. THE MAIN THEME OF THE COURSE IS
THE RELIABILITY AND VALIDITY OF SCIENTIFIC METHODS THAT ARE USED
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TO ESTABLISH FACTS IN LEGAL CONTEXT.
THE THIRD PART OF THE COURSE FOCUSES ON QUANTITATIVE
METHODS USED TO ANALYZE DATA, STATISTICAL ANALYSIS. AND IN THAT
PART OF COURSE I WOULD COLLABORATE WITH A STATISTICIAN IN THE
PRESENTATION OF THE MATERIALS.
Q. YOU ALSO MENTIONED A COURSE IN DISCRIMINATION. WHAT IS THE
SUBJECT MATTER OF THAT COURSE?
A. THAT IS A COURSE THAT USES A BASIC BOOK. BASIC BOOK OF LEGAL
MATERIALS ON DISCRIMINATION LAW. BUT I HEAVILY SUPPLEMENT THOSE
MATERIALS WITH DATA AND EXAMPLES LARGELY FROM MY BOOK ON
DISCRIMINATION, TO IDENTIFY THE QUANTITATIVE ISSUES THAT LAWYERS
NEED TO BE ABLE TO UNDERSTAND IN HANDLING DISCRIMINATION CASES.
MY OBJECTIVE IS TO GIVE THE LAW STUDENTS ENOUGH
UNDERSTANDING OF THE METHODOLOGICAL AND STATISTICAL ISSUES SO
THEY CAN CONVERSE INTELLIGENTLY WITH AN EXPERT THEY MIGHT
ENCOUNTER IN THE PRACTICE OF LAW IN DEALING WITH ONE OF THESE
CASES.
@. FINALLY. YOU MENTIONED A COURSE IN CAPITAL PUNISHMENT.
WHAT’S THE NATURE OF THAT COURSE?
A. IT’S ACTUALLY A SEMINAR THAT ADDRESSES THE REQUIREMENTS OF
THE STH AMENDMENT AS THEY CONTROL THE MANNER IN WHICH DEATH
SENTENCING STATUTES ARE DRAFTED. BUT IN PARTICULAR, THE WAY IN
WHICH DEATH SENTENCING STATUTES ARE APPLIED.
AGAIN I“M INTERESTED IN PRESENTING TO THE STUDENTS THE
ISSUES THAT INVOLVE THE USE OF SCIENTIFIC EVIDENCE AND SOCIAL
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SCIENCE EVIDENCE UNDER THE 8TH AMENDMENT AND UNDER THE 14TH
AMENDMENT.
@. BEYOND YOUR ACADEMIC EMPLOYMENT, PROFESSOR BALDUS. HAVE YOU
EVER BEEN EMPLOYED IN ANY OTHER CONTEXT SINCE COMING TO IOWA
AFTER YOUR GRADUATE WORK WAS COMPLETED WHICH RELATED TO THE
MATTERS BEFORE THE COURT HERE?
A. YES. IN 1975 1 WAS REQUESTED TO CONSIDER TAKING A JOB AS
THE DIRECTOR OF THE PROGRAM FOR LAW AND SOCIAL SCIENCES AT THE
NATIONAL SCIENCE FOUNDATION. AS I INDICATED TO YOU EARLIER, THE
NATIONAL SCIENCE FOUNDATION HAS A PROGRAM WHICH SUPPORTS
INTERDISCIPLINARY AND PRINCIPALLY EMPIRICAL RESEARCH ABOUT THE
LEGAL SYSTEM. AND THAT WAS THE PROGRAM THAT FUNDED WORK ON THE
BOOK, "STATISTICAL PROOF OF DISCRIMINATION," AND I WAS INVITED
TO BE THE DIRECTOR OF THAT PROGRAM AND 1 SERVED IN THAT CAPACITY
FOR THE ACADEMIC YEAR “73 THROUGH “76.
®@. WHAT WERE YOUR RESPONSIBILITIES IN THAT JOB?
A. MY RESPONSIBILITIES WERE. FIRST, TO DISTRIBUTE A MILLION
DOLLARS TO WORTHY GRANT APPLICANTS. THAT WAS MY BOTTOM LINE
RESPONSIBILITY.
THE PROCESS OF DOING THAT INVOLVED SOLICITING,
ENCOURAGING THE SOCIAL SCIENCE COMMUNITY INTERESTED IN LAW, TQ
SUBMIT GOOD PROPOSALS. PROPOSALS WOULD COME IN IN PRELIMINARY
FORM, I WOULD CONSULT WITH THE SCHOLARS INVOLVED AND GIVE THEM
IDEAS OF HOW TO IMPROVE THEM, TO MAKE THEM COMPETITIVE.
THEY WOULD THEN BE SUBMITTED IN FINAL FORM. I WOULD
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THEN SURVEY THE COMMUNITY OF SCHOLARS THAT WERE MOST
APPROPRIATE. THE PEERS, MOST APPROPRIATE ONES TO REVIEW IT. I
WOULD SEND THOSE OUT FOR EXTERNAL REVIEW. GET THOSE RESPONSES,
SYNTHESIZE THOSE OPINIONS. AND THEN DECIDE WHO WOULD GET WHAT
FUNDING FROM THE NATIONAL SCIENCE FOUNDATION FOR THEIR PROJECTS.
@. ON WHAT BASIS DID YOU MAKE THESE EVALUATIONS?
A. THEY WERE MADE ON THE BASIS OF THE THEORETICAL SIGNIFICANCE
OF THE WORK, IN TERMS OF ADVANCING SOCIAL SCIENCE, UNDERSTANDING
OF THE PROBLEM INVOLVED, THE POLICY RELEVANCE, TO WHAT EXTENT
WOULD IT SHED UNDERSTANDING FOR COURTS AND LEGISLATURES ABOUT
THE OPERATION OF THE LEGAL SYSTEM. BUT THE PRINCIPAL CONCERN
WAS THE METHODOLOGICAL SOUNDNESS AND RIGOR OF THE PROPOSED
RESEARCH.
Q. DID THE THE FEDERAL GOVERNMENT OR NATIONAL SCIENCE
FOUNDATION RELY ON YOUR RECOMMENDATIONS IN DISTRIBUTING FUNDS
FOR THIS RESEARCH?
A. YES, EVERY DECISION I MADE WAS SUPPORTED BY THE DIRECTOR OF
THE WHOLE SECTION I WORKED IN.
?. PROFESSOR BALDUS: HAVE YOU SERVED AS A CONSULTANT IN ANY
PROJECTS INVOLVING EMPIRICAL RESEARCH IN LEGAL STUDIES?
A. YES. IVE SERVED AS A CONSULTANT IN A HANDFUL OF FUNDED
DISCRIMINATION CASES, BUT MY PRINCIPAL AREA OF CONSULTING WORK
HAS BEEN IN THE AREA OF PROPORTIONALITY REVIEW OF
DEATH SENTENCES, AND THAT WORK HAS BEEN DONE FOR STATE SUPREME
COURTS. AND THE NATIONAL CENTER FOR STATE COURTS. WHICH IS A
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SUPPORT ORGANIZATION FOR THE STATE JUDICIARY, ITS COMPARABLE TO
THE FEDERAL JUDICIAL CENTER IN WASHINGTON.
@. LET ME CLARIFY? |
A. YES,
Q. YOU INDICATED YOU‘VE DONE PROPORTIONALITY CONSULTING FOR
STATE SUPREME COURTS. WERE YOU HIRED BY STATE SUPREME COURTS AS
| A CONSULTANT?
A. YES.
Q. WHICH COURTS?
A. IVE BEEN HIRED BY THE SUPREME COURT OF DELAWARE AND SUPREME
COURT OF SOUTH DAKOTA.
@. HOW DID YOU COME TO ENTER INTO THOSE RELATIONSHIPS?
A. IN 1980, BEGINNING OF 1980, I WAS INVITED BY THE CONFERENCE
OF CHIEF JUSTICES TO PRESENT A PAPER ON THE MATTER OF
PROPORTIONALITY REVIEW. THE CONFERENCE OF CHIEF JUSTICES IS AN
ORGANIZATION CONSISTING OF THE FIFTY CHIEF JUSTICES OF THE STATE
SUPREME COURTS IN THE UNITED STATES. AND THEY MEET TWICE A YEAR.
TO CONDUCT THEIR BUSINESS, AND HAVE SCHOLARS PERIODICALLY COME
AND ADDRESS LEGAL ISSUES OF IMPORTANCE TO THEM. I MADE A
PRESENTATION TO THEM EXPLAINING THE LEGAL AND PROOF ISSUES THAT
WERE ATTENDANT TO THEIR RESPONSIBILITY OF DETERMINING WHEN DEATH
SENTENCE CASES WERE EXCESSIVE OR DISPROPORTIONATE UNDER STATUTES
THAT ARE COMPARABLE TO THE ONE WE HAVE HERE IN GEORGIA.
AS A RESULT OF THAT PAPER THAT I DELIVERED: I WAS
INVITED BY THESE TWO COURTS TO COME AND CONSULT WITH THEM ABOUT
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THE LEGAL ISSUES, THE ISSUES OF METHODOLOGY AND THE ISSUES OF
INTERPRETATION THAT THEY WOULD LIKELY CONFRONT WHEN THEY WERE
REVIEWING DEATH SENTENCES IN THEIR JURISDICTION REVIEWING DEATH
SENTENCES FOR COMPARATIVE EXCESSIVENESS.
BY MR. BOGER?®
@. PROFESSOR BALDUS, WHAT WERE YOUR RESPONSIBILITIES AS A
CONSULTANT TO THE SUPREME COURT OF DELAWARE, AND HOW DID YOU
CARRY THOSE OUT?
A. MY FIRST RESPONSIBILITY WAS TO REVIEW THE LAW OF DELAWARE
BEARING ON THIS QUESTION, TO REVIEW THE PROVISIONS WHICH THEY
WERE FOLLOWING AT THAT TIME, AND TO PREPARE RECOMMENDATIONS FOR
IMPROVEMENT IN THE SYSTEM AS I SAW IT WAS NEEDED.
THE COURT: OUT OF CURIOSITY’S SAKE, HAD THEY AT THAT
TIME, EVER REVIEWED DEATH SENTENCING CASES. AND HAVE THEY SINCE
THEN HAD THE OCCASION?
THE WITNESS: AT THAT TIME. THEY HAD ONE PENDING.
THAT’S WHY THEY WERE CONCERNED. AND HOW MANY MORE THEY HAVE
REVIEWED, I DO NOT KNOW.
BY MR. BOGER1:
@. DID YOU SUBMIT ANY WRITTEN DOCUMENT TO THEM IN AID OF THEIR
WORK?
A. 1 SUBMITTED AN EXTENSIVE QUESTIONNAIRE THAT THEY REGUESTED
ME TO PREPARE.
Q@. WHAT WAS THE NATURE OF THAT QUESTIONNAIRE?
A. IT WASN’T CLEAR TO THEM COMPLETELY WHAT KINDS OF INFORMATION
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THEY WANTED TO KNOW ABOUT THE CASES. SO I SUGGESTED THAT I WOULD
PREVENT, PRESENT A SMORGASBORD OF POSSIBLE QUESTIONS THEY MIGHT
WANT TO COLLECT INFORMATION ON. ABOUT THE OFFENDERS GOING
THROUGH THEIR SYSTEM. SO I PUT TOGETHER A QUESTIONNAIRE THAT
HAD EVERY CONCEIVABLE QUESTION THAT MIGHT BE OF RELEVANCE TO
THEM AND THEY WERE GOING TO RECEIVE THAT AND PICK AND CHOOSE
WHAT THEY THOUGHT WAS MOST RELEVANT.
Q. DID YOU ACTUALLY. AT ANY POINT, MEET WITH THE COURT?
A. YES. I SPENT FIVE OR SIX HOURS IN CONSULTATION WITH THE
COURT, AND I ALSO ADDRESSED THE JUDICIARY OF THE STATE OF
DELAWARE. 1 APPEARED AT THE TIME OF THEIR ANNUAL JUDICIAL
CONFERENCE AND EXPLAINED TO THE JUDGES, THE TRIAL JUDGES: THE
OVER. GAVE THEM AN OVERVIEW OF THE PROBLEMS, AND SIGNIFICANCE OF
PROPORTIONALITY REVIEW AND OF THEIR RESPONSIBILITIES IN
COLLECTING DATA OF THE KIND AND QUALITY THAT WOULD ENABLE THE
SUPREME COURT TO DO AN APPROPRIATE AND RELIABLE PROPORTIONALITY
REVIEW.
@. YOU MENTIONED A CONSULTANTSHIP WITH THE STATE OF SOUTH
DAKOTA. WAS THAT A SIMILAR KIND OF ARRANGEMENT?
A. YES. IT WAS. 1 RECEIVED THEIR STATUTES THAT ILLUSTRATED
THEIR PROCEDURES. I STUDIED THEIR LAW. I WENT AGAIN AT THE TIME
OF THEIR STATE JUDICIAL CONFERENCE AND ADDRESSED THE JUDICIAL
CONFERENCE OF THE STATE, AND HAD EXTENSIVE MEETINGS WITH THE
COURT TOGETHER, AND ALSO WITH THE CHIEF JUSTICE, WHO HAD A
PARTICULAR INTEREST IN THE SUBJECT.
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@. BEYOND YOUR WORK WITH THE DELAWARE AND SOUTH DAKOTA SUPREME
COURTS. YOU INDICATED THAT YOU HAD ALSO SERVED AS A CONSULTANT
TO THE NATIONAL CENTER FOR STATE COURTS. IN WHAT CAPACITY DID
YOU SERVE?
A. WELL, AS A RESULT OF THE PRESENTATION I MADE TO THE
CONFERENCE OF CHIEF JUSTICES, THE NATIONAL CENTER FOR STATE
COURTS, WHICH IS THE TECHNICAL ADVISER AND ADMINISTRATIVE
SUPPORT UNIT FOR THE STATE JUDICIARY. THAT IS, THE ORGANIZATION
OF STATE SUPREME COURTS, THEY DECIDED TO UNDERTAKE A PROJECT
WHICH WOULD BUILD UPON THE RESEARCH THAT WE HAD DONE AND PROVIDE
IN A MORE SYSTEMATIC AND THOROUGHGOING MANNER SUFPORT AND
ASSISTANCE FOR STATE SUPREME COURTS INTERESTED IN CONDUCTING,
CONDUCTING PROPORTIONALITY REVIEW.
THEY CONTACTED ME ABOUT MY AVAILABILITY TO WORK WITH
THEM ON THIS PROJECT AND I EXPRESSED AN INTEREST IN IT. AND THEY
PUT TOGETHER A PROPOSAL ALONG THE LINES THAT WE DEVELOPED
MUTUALLY.
QR. WHAT KIND OF PROPOSAL WAS THIS?
A. THIS WAS A GRANT APPLICATION TO THE, TO BE SUBMITTED TO A
VARIETY OF GOVERNMENT AGENCIES, PRINCIPALLY THE NATIONAL
INSTITUTE OF JUSTICE, WHICH IS THE SECTION OF THE UNITED STATES
DEPARTMENT OF JUSTICE WHICH SUPPORTS RESEARCH, EMPIRICAL
RESEARCH AND LEGAL RESEARCH AS WELL. ABOUT THE OPERATION OF THE
LEGAL SYSTEM IN THE UNITED STATES.
@. DID THEY RECEIVE FUNDING FOR THIS PROPOSAL AT SOME POINT?
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A. YES, THE PROPOSAL WAS SUBMITTED AND THEY RECEIVED A GRANT OF
APPROXIMATELY TWO HUNDRED THIRTY THOUSAND DOLLARS FROM THE
JUSTICE DEPARTMENT. AS WELL AS GRANTS OF TEN THOUSAND DOLLARS
EACH FROM A NUMBER OF THE STATE SUPREME COURTS, WHO DESIRED TO
PARTICIPATE IN THE PROJECT.
A. WERE YOU ASKED TO TAKE ANY FURTHER ROLE IN THIS PROJECT?
A. YES, I WAS ENGAGED AS A CONSULTANT FOR THE PROJECT.
Q. LET ME ASK YOU IF YOU WOULD, PROFESSOR BALDUS, TO TURN WHAT
WE‘VE MARKED AS DB-10 FOR IDENTIFICATION AND ASK YOU -——
THE COURT: ARE YOU CHANGING SUBJECTS?
MR. BOGER: EXCUSE ME?
THE COURT: ARE YOU CHANGING SUBJECTS?
MR. BOGERI NO, I’M NOT. YOUR HONOR, BUT I“M CLOSE TO
THE END OF THIS SUBJECT, I“LL =-—
THE COURT: IF YOU'RE CLOSE. GO AHEAD AND FINISH.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOCER:
RA. PROFESSOR BALDUS. CAN YOU IDENTIFY DB-107
A. - YES. DB-10 IS A PROSPECTUS FOR THE NATIONAL CENTER FOR
STATE COURTS PROJECT THAT I JUST DESCRIBED CALLED "IDENTIFYING
COMPARATIVELY EXCESSIVE SENTENCES OF DEATH" THAT WAS ULTIMATELY
FUNDED. AND THE LAST PAGE OF THAT IS A LIST OF THE MEMBERS OF
THE TASK FORCE THAT WAS PUT TOGETHER TO PROVIDE GUIDANCE AND
COUNSEL FOR THE NATIONAL CENTER FOR STATE COURTS IN DEALING WITH
THIS PROJECT.
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THIS COUNCIL COMES TOGETHER OR THIS TASK FORCE MEETS
PERIODICALLY TO HEAR THE PRESENTATIONS AND RECOMMENDATIONS
PRESENTED BY THE CONSULTANTS AND BY THE STAFF OF THE NATIONAL
CENTER, AND THEY REACT TO THEM, AND PROVIDE THEIR IDEAS OF HOW
THE PROJECT COULD BE IMPROVED. |
@. CAN YOU GIVE US SOME INDICATION WITHOUT GOING THROUGH NAME
BY NAME OF WHAT KINDS OF PERSONS ARE ON THIS TASK FORCE?
A. WELL, THERE ARE A NUMBER OF ACADEMICS. AND PRACTITIONERS.
ONE MEMBER IS A MICHAEL FINKELSTEIN, TO WHOM I REFERRED EARLIER.
THERE 1S PROFESSOR WADE MCCREE WHO 1S A FORMER
SOLICITOR GENERAL. I BELIEVE. OF THE UNITED STATES UNDER THE
CARTER ADMINISTRATION.
PROFESSOR FRANKLIN ZIMRING, WHO IS A DISTINGUISHED
SCHOLAR OF LAW AND SOCIAL SCIENCE AT THE UNIVERSITY OF CHICAGO.
AND PROFESSOR JOSEPH KADANE., WHO IS A PROFESSOR OF
STATURE. CARNEGIE-MELLON.
IN ADDITION, THERE ARE REPRESENTATIVES OF SIX OR SEVEN
STATE SUPREME COURTS.
THE IDEA OF THIS PROJECT IS TO GET THE INFORMATION
BACK TO THE STATE SUPREME COURTS AND TO GET THEIR INPUT INTGO HOW
THESE IDEAS CAN BE USED IN A PRACTICAL. CONCRETE WAY. THAT
JUDGES CAN UNDERSTAND AND GET SOME UTILITY FROM.
@. AND YOU SERVE AS CONSULTANT TO THIS GROUP?
A. YES, THAT’S RIGHT.
@. HAVE YOU PRESENTED DOCUMENTS OR PAPERS OR SUGGESTIONS TO
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THEM ON HOW THIS WORK SHOULD BE CARRIED OUT?
A. YES, AT EACH MEETING. I HAVE PRESENTED PAPERS. I CONSUME A
SUBSTANTIAL AMOUNT OF THEIR TIME WITH MY SUGGESTIONS,
@. AND HAS THIS TASK FORCE YET REACHED A CONCLUSION OR A FINAL
PRODUCT OF THE WORK? :
A. NO, IT HAS NOT.
Q. SO IT’S STILL IN PROGRESS?
A. YES.
MR. BOGER: YOUR HONOR, WE“VE REACHED THE END OF THIS
SECTION OF THIS QUESTIONING. I HAVE ONE OR TWO MATTERS MORE ON
QUALIFICATIONS AFTER LUNCH AND THAT SECTION WILL BE COMPLETED.
THE COURT: ALL RIGHT, WE’LL BE IN RECESS, UNTIL
QUARTER OF TWO.
(RECESS TAKEN.)
MS. WESTMORELAND: YOUR HONOR, BEFORE WE BEGIN, MAY I
MAKE ONE NOTE FOR THE RECORD THAT I MEANT TO MAKE BEFORE LUNCH?
WHEN WE HAD THE BREAKS THIS MORNING, APPROXIMATELY
11130, RESPONDENT DID PRESENT TO MR. BOGER, THE REMAINDER OF
DOCTOR KATZ’ REPORT. AS SOON AS THE NEW TABLES ARE READY, WE
WILL PRESENT THOSE.
THE COURT: ALL RIGHT.
DAVID C. BALDUS,
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
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BALDUS ~ DIRECT
TESTIFIED FURTHER AS FOLLOWS:
DIRECT EXAMINATION (CONT‘D)
BY MR. BOGER?:
fl. PROFESSOR BALDUS., BEFORE LUNCH. I WAS ASKING YOU ABOUT YOUR
BEING ON THE NATIONAL CENTER FOR STATE COURTS COMMITTEE.
HAVE YOU SERVED ON ANY PROFESSIONAL COMMITTEES WHICH
HAVE ADDRESSED THE USE OF SOCIAL SCIENCE DATA IN A LEGAL
CONTEXT? |
A. YES.
QR. WHAT COMMITTEES?
A. I SERVED DURING THE LAST YEAR AND A HALF, THAT’S 1982 AND
+83, ON A COMMITTEE OF THE ASSOCIATION OF THE BAR OF THE CITY OF
NEW YORK. IT’S CALLED THE SPECIAL COMMITTEE ON EMPIRICAL DATA
AND LEGAL DECISION MAKING. AND THE CHAIR OF THAT COMMITTEE IS
MICHAEL FINKELSTEIN. THE PERSON I REFERRED TO EARLIER THAT’S MADE
SUCH AN IMPORTANT CONTRIBUTION IN THE AREA OF DISCRIMINATION
LAW.
AND THE PURPOSE OF THE COMMITTEE WAS TO DEVELOP
GUIDELINES AND PROTOCOLS FOR USE BY FEDERAL COURTS IN REGULATING
PRETRIAL PROCEDURES. THE CONCERN WAS THAT IN CASES WITH LARGE
DATA SETS. PARTICULARLY WHEN THEY INVOLVE STATISTICAL QUESTIONS,
THE ISSUES ARE OFTEN NOT PROPERLY AND SHARPLY ENOUGH FRAMED
BEFORE TRIAL SO THAT THERE IS A WASTE OF RESOURCES AND TIME
DURING THE PROCEEDINGS. AND THE PURPOSE OF THIS COMMITTEE WAS
TO TRY AND FACILITATE AND TO EXPEDITE THE RESOLUTION OF CASES
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BALDUS - DIRECT
INVOLVING LARGE STATISTICAL DATA BASES.
@. DOCTOR. OR PROFESSOR BALDUS, LET ME ASK YOU TQ TURN TO
WHATS BEEN MARKED FOR IDENTIFICATION AS DB-11. I“LL ASK YOU TO
IDENTIFY THAT DOCUMENT?
A. DB-11 1S A LISTING OF THE MEMBERS OF THE SPECIAL COMMITTEE
ON EMPIRICAL DATA AND LEGAL DECISION MAKING THAT I JUST REFERRED
TO AS WELL AS A PRELIMINARY SUBCOMMITTEE DRAFT.
@. CAN YOU TELL ME SOMETHING ABOUT THE COMPOSITION. THE
MEMBERSHIP OF THIS SPECIAL COMMITTEE. WHAT KINDS OF PERSONS ARE
oN IT?
A. YES, THE COMMITTEE CONSISTS OF PRACTITIONERS PRINCIPALLY
FROM NEW YORK LAW FIRMS, AND FROM OTHER FIRMS AROUND THE AREA,
WHICH ARE HEAVILY ENGAGED IN THIS TYPE OF LITIGATION.
IN ADDITION. THE HONORABLE JACK B. WEINSTEIN, WHO IS
THE AUTHOR OF “WEINSTEIN ON EVIDENCE" WAS AN ACTIVE MEMBER OF
THE COMMITTEE.
IN ADDITION, THERE WERE A NUMBER OF STATISTICIANS,
ACADEMIC AND PRACTITIONERS WHO PARTICIPATE IN THIS TYPE OF
LITIGATION,
THEY ALSO PARTICIPATED EXTENSIVELY IN THE OPERATION OF
THE COMMITTEE. WHICH HAS JUST COMPLETED ITS WORK.
@. HOW I5 ONE SELECTED FOR THIS COMMITTEE?
A. THE SELECTIONS FOR THE COMMITTEE WERE MADE BY MICHAEL
FINKELSTEIN, I BELIEVE, AND HE INVITED PEOPLE WHO HAD EXPERIENCE
IN THIS AREA, EITHER AS PRACTITIONERS OR AS SCHOLARS.
—— A——— —e—— — ——— ———— —— v—— ——— —— —— —— A—— —————— — — —— — — —— a— — ——— — —— et. . T——— ——
103
BALDUS -~ DIRECT
ad
@. AND WHAT WAS YOUR PARTICULAR CONTRIBUTION TO THE COMMITTEE?
2 |A. 1 WAS INVITED AS ONE WHO WAS A SCHOLAR AND HAD WRITTEN IN
3 |THE AREA. I PARTICIPATED IN THE DELIBERATIONS OF THE COMMITTEE
4 |AND ALSO I WAS A MEMBER OF THE SUBCOMMITTEE WHICH HELPED DRAFT
5 |THE REPORT. ]
® 6 MICHAEL FINKELSTEIN WAS THE PRINCIPAL DRAFTSMAN OF
7 |THIS REPORT. THE COMMITTEE HAD ASKED ME TO BE THE REPORTER OF
‘8 |THIS PROJECT IN THE FIRST INSTANCE. BUT I HAD TO DECLINE BECAUSE
9 |OF THE PRESS OF OTHER COMMITMENTS. BUT I DID PUT MY OAR IN IN
10 |HELPING MICHAEL FINKELSTEIN PREPARE THIS REPORT. BUT HE WAS
11 |PRINCIPAL DRAFTSMAN OF THE REFORT.
12 |@. THE DOCUMENT THAT FOLLOWS THE LIST OF COMMITTEE MEMBERS IS
13 |WHAT, PROFESSOR BALDUS?
14 |A. THIS IS A DRAFT OF THE SUBCOMMITTEE OF THE LARGER COMMITTEE.
15 |@. AND WHAT DOES THE DRAFT CONCERN ITSELF WITH?
16 |A. OH. THE DRAFT, WHICH IS ENTITLED “PRETRIAL DISCOVERY AND
17 |PRACTICE RECOMMENDATIONS" CONSISTED OF A SERIES OF
18 |RECOMMENDATIONS WHICH THE COMMITTEE AGREED UPON THAT WOULD HELP
p 19 |FACILITATE DISCOVERY IN CASES OF THIS TYPE, AND SHARPEN THE
20 ISSUES FOR TRIAL. AND SPEEDY DELIBERATION.
21 Q. DO YOU KNOW WHETHER THERE ARE ANY PLANS TO PUBLISH THIS
22 REPORT WHEN ITS FINAL?
23 A. YES. THERE ARE PLANS TO PUBLISH IT AT THE LAST TIME I HEARD
24 IT. IN THE F.R.D., FEDERAL RULES DECISION PUBLICATION OF THE
2% |WEST PUBLISHING COMPANY. BUT WHETHER OR NOT IT WILL APPEAR
GO
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BALDUS - DIRECT
THERE, I DON’T KNOW. I‘M SURE IT WILL BE PUBLISHED THERE OR IN
A LAW REVIEW SOMEWHERE.
@. PROFESSOR BALDUS. WERE NEARING THE END OF YOUR
QUALIFICATIONS, I WANT TO ASK ABOUT ONE OR TWO OTHER AREAS.
HAVE YOU EVER RECEIVED GRANTS OR FINANCIAL SUPPORT FOR
YOUR EMPIRICAL WORK IN LAW AND SOCIAL SCIENCE?
A. WELL. I MENTIONED EARLIER THE ORANT THAT JAMES COLE AND I
RECEIVED IN 1975 FROM THE NATIONAL SCIENCE FOUNDATION.
IN ADDITION, IN 1980, GEDRGE WOODWORTH AND CHARLES
PULASKI AND I RECEIVED A GRANT FROM THE NATIONAL INSTITUTE OF
JUSTICE, WHICH I MENTIONED EARLIER IS THE RESEARCH SUPPORT
SECTION OF THE UNITED STATES DEPARTMENT OF JUSTICE. AND THAT
GRANT WAS AWARDED TO US TO CONDUCT AN EMPIRICAL STUDY OF CAPITAL
SENTENCING SYSTEM IN THE STATE OF GEORGIA. AND SPECIFICALLY IT
WAS TO DO THE RESEARCH THAT CULMINATED IN WHAT WE ARE CALLING IN
THIS PROCEEDING, THE PROCEDURAL REFORM STUDY.
A. WAS YOUR APPLICATION FOR THAT ORANT CONSIDERED ON A
COMPETITIVE BASIS? {
A. YES, THIS GRANT WAS AWARDED TO US AFTER A COMPETITION THAT
INVITED SUBMISSIONS UP TO A CERTAIN TIME PERIOD, THEN THE. THEY
WERE CONSIDERED BY PEERS IN THE COMMUNITY, IN THE SCIENTIFIC
COMMUNITY AGAIN, AND FOUR AWARDS WERE MADE AND I WAS ADVISED
THAT THERE WERE SOME ONE HUNDRED FIFTY APPLICATIONS.
@. DO YOU KNOW ON WHAT BASIS THE SELECTIONS WERE MADE?
A. YES, THE BASIS OF THE SELECTION WAS THE IMPORTANCE OF THE
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BALDUS - DIRECT
TOPIC, FROM BOTH A SOCIAL SCIENTIFIC THEORETICAL STANDPOINT,
FROM A POLICY STANDPOINT AND ALSO FROM THE STANDPOINT OF THE
SCIENTIFIC RIGOR OF THE METHODOLOGY THAT WAS EMBODIED IN THE
PROJECT.
@. YOUR TESTIMONY 1S THEN YOUR RESEARCH THAT WAS FUNDED. IN
EFFECT, WON THIS COMPETITIVE COMPETITION, WAS RESEARCH WHICH
BECAME THE PROCEDURAL REFORM STUDY. IS THAT CORRECT?
A. THAT’S CORRECT.
@. WHAT DID YOU SUBMIT BY WAY OF PROSPECTUS OR, IN OTHER WORDS.
WHAT DID YOU TELL THE PEERS ABOUT WHAT YOU INTENDED TO DO?
A. WE SUBMITTED A GRANT APPLICATION, RESEARCH PROPOSAL, AS IT’S
COMMONLY CALLED, AND THAT WAS -—-
@. DID IT DISCUSS THE METHODOLOGY YOU INTENDED TO EMPLOY?
A. YES. IT DID. IT DESCRIBED IT IN SUBSTANTIAL DETAIL.
Q@. ALL RIGHT.
YOU“VE MENTIONED A SECOND GRANT I THINK YOU RECEIVED.
YOU MENTIONED THE NSF GRANT BACK IN THE MID--70“S, YOU MENTIONED
THE NIJ GRANT. 1 THOUGHT YOU HAD MADE REFERENCE TO YET
ANOTHER. OR IS THERE ANOTHER GRANT YOU RECEIVED?
A. YES.
Q. WHAT’S THAT?
A. THIS IS ANOTHER GRANT THAT WAS RECEIVED FOR RESEARCH ON
CHARGING AND SENTENCING IN THE STATE OF GEORGIA.
THAT WAS A GRANT THAT WAS AWARDED TO US JUST WITHIN
THE LAST MONTH BY THE NATIONAL SCIENCE FOUNDATION TO. TO
106
BALDUS -~ DIRECT
FURTHER, TO DO FURTHER ANALYSIS ON THE DATA SET THAT IN THIS
PROCEEDING WE REFERRED TO AS THE CHARGING AND SENTENCING STUDY.
QR. WAS THE GRANT AWARDED ALSO ON A COMPETITIVE BASIS?
A. YES, IT WAS. IT WAS REVIEWED BY EXPERTS IN THIS AREA OF LAW
AND SOCIAL SCIENCE RESEARCH. RELATING TO THE CRIMINAL JUSTICE
SYSTEM.
IN ADDITION, IT WAS REVIEWED BY A PANEL OF SEVEN OR
EIGHT SCHOLARS WHO COME TOGETHER TWICE A YEAR AND. IN WASHINGTON.
TO REVIEW THE PROPOSALS THAT HAVE BEEN SUBMITTED. AND THEY THEN
MAKE RECOMMENDATIONS TO THE PROGRAM DIRECTOR. AND IT WAS THEIR
RECOMMENDATION SUPPORTED BY THE EXTERNAL REVIEWS THAT THEY
RECEIVED, THAT THIS PROJECT BE SUPPORTED.
@. WHAT WAS THE SUBMISSION THAT YOU MADE TO RECEIVE THIS GRANT?
A. AGAIN, IT WAS A RESEARCH PROPOSAL. WHICH OUTLINED IN DETAIL
THE METHODOLOGY THAT WE PROPOSED TO,» TO UNDERTAKE.
THE, THE PROPOSAL THAT WE SUBMITTED CONTEMPLATED MORE
EXTENSIVE RESEARCH THAN WE HAVE DONE UP TO THIS POINT AND
PROPOSED DISCUSSING, THIS LITIGATIONS IT GOES BEYOND WHAT WE DID
HERE, ADDRESSES A SLIGHTLY DIFFERENT QUESTION.
@. I BELIEVE, IF MY MEMORY I3 ACCURATE. THAT YOU DIDNT
IDENTIFY THE FUNDING SOURCE FOR THIS MOST RECENT GRANT?
A. YES, IT WAS THE NATIONAL SCIENCE FOUNDATION. AGAIN IT WAS A
LAW AND SCIENCES PROGRAM OF THE NATIONAL SCIENCES FOUNDATION.
@. FINALLY, IN THIS AREA, PROFESSOR BALDUS., HAVE YOU RECIEVED
ADDITIONAL FUNDING FROM ANY OTHER SOURCES FOR ANY OF THE WORK
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BALDUS - DIRECT
YOU‘VE DONE, INCLUDING THE WORK WHICH HAS GONE INTO THE REPORTS?
A. YES.
@. AND STUDIES BEFORE US TODAY?
A. YES, WE HAVE. WE RECEIVED FINANCIAL SUPPORT FROM A GRANT
GIVEN BY THE EDNA MCCONNELL CLARK FOUNDATION TO THE LEGAL
DEFENSE FUND IN NEW YORK, WHICH PAID US THE FUNDS TO SUPPORT THE
RESEARCH FOR THE, PART OF THE PROJECT KNOWN HERE AS THE CHARGING
AND SENTENCING STUDY. |
IN ADDITION, WE HAVE RECEIVED EXTENSIVE SUPPORT FROM
THE UNIVERSITY OF IOWA COLLEGE OF LAW FOUNDATION.
FROM THE ARIZONA STATE UNIVERSITY LAW SCHOOL.
AND IN PARTICULAR. FROM THE COLLEGE OF LAW AT SYRACUSE
UNIVERSITY.
6. AS MY LAST QUESTION IN THE AREA OF QUALIFICATIONS, PROFESSOR
BALDUS, YOUVE SPOKEN A LOT ABOUT THE PEER REVIEW THAT YOUR WORK
HAS RECEIVED FROM OTHER FUNDING AGENCIES. AND PERSONS INVOLVED
IN EVALUATING YOUR RESEARCH.
HAVE YOU EVER IN EFFECT SERVED AS A PEER TO REVIEW
OTHER WORK, BEYOND THE TESTIMONY YOU/VE GIVEN US PREVIOUSLY, THE
BOOK REVIEWS YOU‘VE DONE.» THAT KIND OF THING?
A. YES. 1 MAVE SERVED AS A MEMBER OF THE BOARD OF EDITORS ON
THE JOURNAL EVALUATION QUARTERLY. WHICH I REFERRED TO EARLIER,
WHICH IS A SCIENTIFIC JOURNAL DEVOTED TO RESEARCH, THAT
EVALUATES THE OPERATIONS OF SYSTEMS, BASICALLY POLITICAL AND
LEGAL SYSTEMS.
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BALDUS - DIRECT
I ALSO SERVED ON THE BOARD OF EDITORS OF LAW AND
POLICY QUARTERLY. WHICH IS ANOTHER JOURNAL THAT FOCUSES ON THE
SAME SORT OF RESEARCH.
I REGULARLY. EXCUSE ME. I REGULARLY REVIEW GRANT
APPLICATIONS THAT ARE SUBMITTED TO THE NATIONAL SCIENCE
FOUNDATION, AND I REGULARLY REVIEW ARTICLES THAT ARE SUBMITTED
TO THE LAW AND SOCIETY REVIEW, WHICH IS THE LEADING PUBLICATION
CONCERNED WITH THE DISCIPLINE OF LAW AND SOCIAL SCIENCE
RESEARCH. |
Ga. 15 SERVICE ON THE BOARD OF EDITORS OF THE TWO JOURNALS YOU
MENTIONED A SELECTIVE PROCESS?
A. YES, IT IS.
0. AND IS IT CONSIDERED AN HONOR WITHIN THE ACADEMIC COMMUNITY
TO BE CHOSEN FOR EDITORSHIP?
A. YES.
MR. BOGER! YOUR HONOR. AT THIS TIME, BEFORE I
COMPLETE MY SUBMISSION ON PROFESSOR BALDUS’ QUALIFICATIONS, JUST
FOR CLARITY OF THE RECORD, I WOULD LIKE TO NOTE ONCE AGAIN WE
WOULD MOVE INTO EVIDENCE, AND THINK THE DOCUMENTS, DB-1, I THINK.
THROUGH -11 WHICH YOUR HONOR HAS NOT YET RULED ON ONE WAY OR
ANOTHER ARE RELEVANT AS QUALIFICATIONS, INDEED THAT THEY ARE THE
KIND OF DOCUMENTS WHICH IF YOUR HONOR READ WOULD, I THINK. GIVE
YOU SOME INSIGHT INTO HIS QUALIFICATIONS.
BUT I AM WELL AWARE OF YOUR HONOR’S PREVIOUS RULING ON
THIS MATTER AND SIMPLY WANT THE RECORD TO BE CLEAR ON THESE
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BALDUS - VOIR DIRE
ADDITIONAL ITEMS.
THE COURT: ALL RIGHT. I THINK FOR THE REASONS I HAVE
PREVIOUSLY STATED. I WILL DENY THAT AT THIS TIME.
MR. BOGER: ALL RIGHT. YOUR HONOR. THANK YOU.
AT THIS TIME, 1 SUBMIT THAT PROFESSOR BALDUS IS
QUALIFIED AS AN EXPERT IN THE EMPIRICAL STUDY OF THE LEGAL
SYSTEM WITH PARTICULAR EXPERTISE ON METHODS. AND ANALYSES ON
DISCRIMINATION IN A LEGAL CONTEXT.
THE COURT: ALL RIGHT.
MR. BOCER: I SUBMIT PROFESSOR BALDUS FOR ANY
CROSS-EXAMINATION, VOIR DIRE ON HIS QUALIFICATIONS.
THE COURT: ALL RIGHT, MS. WESTMORELAND.
VOIR DIRE EXAMINATION
BY MS. WESTMORELAND:
Q. PROFESSOR BALDUS, AS I RECALL, I KNOW YOU RECEIVED YOUR
UNDERGRADUATE DEGREE FROM DARTMOUTH COLLEGE. IS THAT CORRECT?
A. YES.
G. AND AT THAT TIME YOU HAD NO STATISTICS COURSES DURING YOUR
UNDERGRADUATE WORK, IS THAT ALSO CORRECT?
A. YES.
@. AND WHEN YOU PROCEEDED WITH YOUR MASTERS DECREE IN POLITICAL
SCIENCE, AND THAT WAS AT THE UNIVERSITY OF PITTSBURG. IS THAT
CORRECT?
A. YES, THATS CORRECT.
Q. DID YOU ==
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BALDUS ~ VOIR DIRE
A. MAY I EXPLAIN THAT AT THAT TIME THERE WERE NO STATISTIC
COURSES GIVEN IN THE SOCIAL SCIENCE DEPARTMENT AT UNIVERSITY OF
PITTSBURG.
QR. WHEN YOU BEGAN YOUR, I BELIEVE YOU REFERRED TO IT AS A
SELF-EDUCATION TYPE PROGRAM WITH JAMES COLE. IS THAT AN ACCURATE
STATEMENT OF YOUR PROGRAM YOU BEGAN WITH HIM. REGARDING
QUANTITATIVE METHODS AND THAT SORT OF ANALYSIS?
A. THE PROGRAM OF SELF-EDUCATION THAT I UNDERTOOK INVOLVED AN
EXTENSIVE ANALYSIS OF ALL THE LITERATURE. EMPIRICAL AND
THEORETICAL, RELATED TO HOW ONE CONDUCTED EMPIRICAL STUDIES
GENERALLY, AND WITH SPECIFIC REFERENCE TO LEGAL PROCESSES.
AND I FURTHER TOOK A COURSE AT THE UNIVERSITY OF IOWA.
DEALING WITH THIS TOPIC, AUDITED A STATISTICS COURSE AND THAT
PROVIDED THE BACKGROUND FOR ME TO BEGIN MY COLLABORATION WITH
JAMES COLE WHO TUTORED ME ON A REGULAR BASIS FOR THE NEXT 12 OR
13 YEARS, AND IT STILL CONTINUES.
@. SO THIS HAS BEEN A MATTER OF PERSONAL TUTELAGE RATHER THAN A
FORMAL EDUCATION, CLASSOOM-TYPE SETTING, IS THAT CORRECT?
A. YES, I“VE ONLY HAD TWO CLASSROOM COURSES ON THE SUBJECT.
@. WOULD YOU CONSIDER SUCH THINGS AS DETERMINING AN APPROPRIATE
STATISTICAL PROCEDURE TO APPLY TO A GIVEN SET OF FACTS TO BE
OUTSIDE YOUR AREA OF EXPERTISE OR OUTSIDE YOUR AREA OF
KNOWLEDGE?
A. NO.
@. WHAT ABOUT THE APPROPRIATE SPECIFICATION OF A TEST OF
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BALDUS - DIRECT
STATISTICAL SIGNIFICANCE TQ APPLY?
A. THAT IS QUTSIDE MY AREA OF EXPERTISE.
@. AND SELECTION OF STATISTICALLY VALID PROCEDURES TO UTILIZE
WITH REGARD TO A CERTAIN DATA BASE. WOULD THAT BE OUTSIDE OF
YOUR AREA OF EXPERTISE AS WELL?
A. YES. MY EXPERTISE CONCERNS THE TYPE, GENERAL TYPE OF
MULTIVARIATE PROCEDURES THAT IS APPROPRIATE TO ANSWER SPECIFIC
TYPES OF QUESTIONS. NOT THE FORMAL STATISTICAL VALIDITY OF THE
PROCEDURE AS IT RELATES TO CERTAIN PROPERTIES OF THE UNDERLYING
DATA. THAT SUBJECT IS NOT WITHIN MY AREA OF EXPERTISE.
Q. WOULD YOU CONSIDER. AS WELL. PERHAPS THE STATISTICAL
ANALYSES THEMSELVES TO BE EITHER WITHIN OR OUTSIDE YOUR AREA OF
EXPERTISE?
A. IM NOT QUITE SURE I UNDERSTAND WHAT YOU MEAN BY STATISTICAL
ANALYSES.
RX. THE ACTUAL ANALYSIS OF THE DATA ITSELF?
A. NO, I CONSIDER THAT WITHIN MY AREA OF EXPERTISE. IF YOU
MEAN BY THAT THE ENTRY OF SPECIFICATIONS INTO A COMPUTER. TO
IDENTIFY STATISTICAL ANALYSES THAT ARE TO BE RUN, THAT IS WITHIN
MY AREA OF EXPERTISE.
@. AND IS IT MY UNDERSTANDING THAT PROFESSOR WOODWORTH, THOUGH.
WAS THE ONE GIVING THE DIRECTION IN THE STUDY WE‘RE INVOLVED
WITH. AS TO PERHAPS WHAT PROCEDURES WOULD BE UTILIZED AND YOU
TOOK THOSE PROCEDURES AND UTILIZED THEM, IS THAT A CORRECT
STATEMENT?
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BALDUS - VOIR DIRE
A. THAT’S A CORRECT STATEMENT.
@. YOUR LAW SCHOOL. LAW SCHOOL STUDY WHICH YOU COMPLETED AT
YALE, 1 BELIEVE, IF I RECALL CORRECTLY, EITHER AT THIS OR AT AN
EARLIER POINT DID YOU NOT INDICATE THAT YOUR FOCUS WAS IN
INTERNATIONAL LAW AT THAT TIME?
A. IT WAS IN INTERNATIONAL LAW. AND LAW AND SOCIAL SCIENCE
RESEARCH.
@. DID YOU ——
A. AND IF I CAN COMPLETE?
@. CERTAINLY?
A. MY PRINCIPAL FOCUS IN STUDYING THE AREAS OF INTERNATIONAL
LAW THAT I DID WAS BECAUSE IT INVOLVED THE INTEGRATION OF LAW
AND SOCIAL SCIENCE RESEARCH. THE PROFESSORS WHO CONDUCTED THAT
SECTION AT THE YALE LAW SCHOOL WERE TWO OF THE MOST
DISTINGUISHED SCHOLARS IN THE AREA OF LAW AND SOCIAL SCIENCE
RESEARCH, HAROLD GLAZELL AND MYERS MACDOUGALD.
THAT WAS THE PRINCIPAL REASON I WENT TO THE YALE LAW
SCHOOL WAS SO THAT I COULD WORK WITH THEM.
G. SO YOUR FOCUS WAS IN THOSE TWO AREAS OF THE INTERNATIONAL
LAW AND THE SOCIAL SCIENCE RESEARCH AREA, IS THAT CORRECT?
A. YES.
@. AND YOU DID NOT REALLY FOCUS ON CRIMINAL LAW OR CRIMINAL
PROCEDURE, POST CONVICTION RELIEF OR ANY OF THOSE FACTORS?
A. NO. AT THAT TIME, POST CONVICTION PROCEDURE WAS IN ITS
INFANCY IN THE AREA OF DOCTRINAL DEVELOPMENT.
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BALDUS - DIRECT
@. IN YOUR BOOK WITH JAMES COLE, I RECALL YOU INDICATED THAT
HIS INPUT WAS MORE INTO THE STATISTICAL AREA. I BELIEVE HE IS A
STATISTICIAN, I5 THAT CORRECT?
2. AND —-
A. 1M AGREEING. THAT YES. HE IS A STATISTICIAN. I“M NOT
ANSWERING YES TO THE WHOLE GUESTION.
R. I WANTED TO GET THAT ANSWERED FIRST. EXCUSE ME.
THEN WAS HIS INPUT TH: FRIMARY INPUT INTO THE
STATISTICAL ASPECTS OF THE BOOK, AS TO THE TYPE OF PROCEDURES TO
BE UTILIZED IN VARTLUS STUDIES, OR DID YOU HAVE ANY INPUT INTO
THAT?
A. AGAIN, IN THIS, AND THIS HOLDS WITH RESPECT TO ALL WORK I“VE
DONE IN COLLABORATION WITH STATISTICIANS ON THESE ISSUES, 1
CONSIDER IT WITHIN MY AREA OF EXPERTISE TO DETERMINE THE KINDS
OF MULTIVARIATE PROCEDURES GENERALLY THAT ONE USES TO CONTROL FOR
CERTAIN EACKGROUND FACTORS IN ADDRESSING ISSUES OF
DISCRIMINATION.
HOWEVER, WITH RESPECT TO WHICH PARTICULAR MULTIVARIATE
PROCEDURE OF A CERTAIN TYPE. WHICH KIND OF REGRESSION PROCEDURE
YOU USE, THAT IS NOT WITHIN MY AREA OF EXPERTISE. WHETHER YOU
USE A LEAST SGUARES PROCEDURES OR WEIGHTED PROCEDURE OR WHETHER
YOU USE A LOADED PROCEDURE. THAT IS NOT MY AREA OF EXPERTISE.
THE IDENTIFICATION OF THOSE CHOICES.
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BALDUS - VOIR DIRE
YOU. AS A LAWYER AND SOCIAL SCIENTIST PERHAPS HAVE
IDENTIFIED THE LEGAL AND SOCIAL CONCERNS AND THE STATISTICIAN
HAS DESIONED THE MODEL OR MECHANISM TO STUDY HOW TO, THESE
CONCERNS INTERRELATE. 1S THAT FAIR?
THE WITNESS! YES. BUT I WOULD SAY THIS, THAT MY, THE
STATISTICIAN DOES NOT CARRY THE FULL BURDEN OF RESPONSIBILITY ON
THAT QUESTION. THE. THE.» MY ROLE AS A LAWYER AND AS ONE WITH
KNOWLEDGE OF SOCIAL SCIENCE, VERY MUCH INVOLVES WHAT STATISTICAL
PROCEDURE WILL PROVIDE THE RELEVANT INFORMATION THAT A COURT
NEEDS TO KNOW. THAT’S A LEGAL DETERMINATION, NOT A STATISTICAL
DETERMINATION. |
NOW. ONCE THAT GENERAL GUESTION HAS BEEN ADDRESSED.
AND ANSWERED: THEN IT’S UP TO THE STATISTICIAN TO DEFINE
TECHNICALLY IN TERMS OF THE ASSUMPTIONS OF THOSE PROCEDURES
WHICH IS THE APPROPRIATE MODEL OR ANALYSIS TO USE.
BUT THE GENERAL SELECTION OF THE PROCEDURE IS A
QUESTION OF WHAT INFORMATION WILL BE PROVIDED BY THE PROCEDURE.
AND THE INFORMATION THAT IS PROVIDED IS A QUESTION OF WHAT THE
QUESTION IS THAT THE LAW POSES. AND THAT IS A LEGAL
DETERMINATION.
THE COURT! THATS WHAT I THINK I MEANT TO ASK.
THE WITNESS: OH, ALL RIGHT, SIR.
BY MS. WESTMORELAND:
Q. THEREFORE, PROFESSOR BALDUS. IN LIGHT OF THE QUESTION FROM
THE COURT. AND THE RESPONSE YOU HAVE GIVEN, WOULD IT BE A FAIR
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STATEMENT. THEN, TO SAY THAT YOU WOULD NOT FEEL QUALIFIED AS AN
EXPERT TO DO THE ENTIRE SELECTION OF ALL THE PROCEDURES TO BE
UTILIZED IN ANALYZING THE DATA. ASIDE FROM SELECTING THE MAJOR
CATEGORY OF PROCEDURE TO BE UTILIZED?
A. 1 WOULD -- SORRY.
GQ. GO AHEAD?
A. 1 WOULD NOT FEEL COMFORTABLE IN MAKING ALL THOSE CHOICES:
AND I NEVER WOULD.
8. 1 NOTE ON YOUR VITA,» THAT YOU‘RE LISTED AS A CONSULTANT FOR
THE N.A.A.C.P. LEGAL DEFENSE AND EDUCATION FUND.
WHAT TYPE OF WORK HAS THAT ENTAILED FOR YOU?
A. PRINCIPALLY. THIS PROJECT, AND GIVING OCCASIONAL ADVICE ON
THE POSSIBILITIES OF THE OTHER POSSIBLE USES OF SOCIAL SCIENCE
RESEARCH, AND. IN OTHER CONTEXTS. BUT THIS HAS BEEN THE MAJOR
CONSULTANT ROLE I“VE HAD WITH THE LEGAL DEFENSE FUND.
8. HAS THAT BEEN A FOCUS ON CAPITAL PUNISHMENT THEN?
A. YES.
@. AND EMPIRICAL STUDIES. ANYTHING OF THAT SORT IN RELATION TO
CAPITAL PUNISHMENT?
A. YES, EMPIRICAL STUDIES.
@. IN FUNCTIONING AS A CONSULTANT WITH THE N.A.A.C.P., HAVE YOU
BEEN GIVEN ANY DIRECTION AS TO. FOR INSTANCE. TYPES OF STUDIES
THAT YOU MIGHT BE REQUESTED TO CONDUCT?
A. WELL. IN THE CONTEXT OF THIS STUDY. I WAS APPROACHED AND
ASKED IF 1 WOULD BE INTERESTED IN ADVISING THEM ABOUT HOW THEY
116
BALDUS - VOIR DIRE
i | MIGHT APPROACH A FUNDING AGENCY TO OBTAIN MONEY TO DO EMPIRICAL
» | STUDIES OF CAPITAL SENTENCING SYSTEM IN THE JURISDICTION OF THE
a |UNITED STATES. AND I TOLD THEM WHAT I THOUGHT THE IMPORTANT
4 | ISSUES WERE.
£ s I TOLD THEM THAT THOSE ISSUES CONCERNED MATTERS OF
® 6 |EXCESSIVENESS, MATTERS OF DISCRIMINATION, THE TWO ISSUES I HAD
7 | BEEN WORKING ON FOR SEVEN OR EIGHT YEARS. AND THE LEGAL DEFENSE
8 |FUND ASKED ME IF I COULD GIVE THEM ADVICE AS TO HOW THEY MIGHT
9 |APPROACH A FUNDING AGENCY, AND I SAID THAT I WOULD.
10 AND MY ADVICE WAS VERY GENERAL, I SAID THESE ARE THE
11 | ISSUES THAT I THINK YOU OUGHT TO GET THE FUNDS, IF YOU CAN
12 |OBTAIN THEM, TO DO RESEARCH ON.
13 AND THEN LATER. THEY ASKED ME IF I WOULD BE INTERESTED
14 | IN UNDERTAKING A RESEARCH PROJECT WITH THE MONEY THAT THEY
1S |ULTIMATELY OBTAINED FROM THE EDNA MCCONNELL CLARK FOUNDATION. AND
16 |1 SAID THAT I WOULD.
17 |G. ARE YOU STILL SERVING THEN AS A CONSULTANT WITH THE LEGAL
18 |DEFENSE FUND?
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21 M3. WESTMORELAND: I BELIEVE THAT’S ALL THE QUESTIONS
22 I HAVE IN THIS AREA.
23 THE COURT: DO YOU OBJECT TO MY LETTING HIM EXPRESS
24 HIS OPINIONS OR OTHERWISE TESTIFY IN THE AREAS THAT MR. BOGER
25 HAS SUGGESTED?
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MS. WESTMORELAND: YOUR HONOR, MY OBJECTION GOES TO
THE FACT I DON’T BELIEVE PROFESSOR BALDUS HAS SHOWN THE
QUALIFICATIONS AS AN EXPERT IN THE AREA OF STATISTICAL ANALYSIS
AND IN THE SELECTION OF PARTICULAR STATISTICAL METHODS AND
SUBSEQUENT APPLICATION OF THOSE METHODS, AND I WOULD OBJECT
ALONG THOSE LINES.
IF THE COURT 1S GOING TO RECOGNIZE PROFESSOR BALDUS AS
AN EXPERT IN ANY MANNER, I THINK IT SHOULD BE VERY NARROWLY
APPLIED AND RESTRICTED TO SPECIFIC AREAS IN WHICH THE EXPERTISE
HAS BEEN SHOWN.
THE COURT: I THINK MR. BOGER HAS GOT A SPIDERWEB. HE
DOESN’T KNOW WHERE IT STARTS. HE CAN PUT ON THE STATISTICIAN,
BUT IN THE ABSENCE OF A SOCIAL AND LEGAL CONTEXT, THE
STATISTICIAN CAN‘T SAY MUCH. OR HE CAN PUT ON HIS SOCIAL
SCIENTIST WHO CAN‘T REALLY SAY MUCH MORE THAN THIS IS THE
QUESTION AND THIS IS THE ANSWER, AND THIS IS WHAT I THINK IT
MEANS. AND THEN YOULL HAVE TO TAKE APART THE STATISTICIAN TO
FIND OUT WHETHER HE’S RELYING ON VALID DATA. THAT'S THE WAY I
PERCEIVE IT.
IS THAT FAIR. MR. BOGER?
MR. BOGER: YOUR HONOR, I THINK IT IS THE QUESTION YOU
ADDRESSED TO PROFESSOR BALDUS, AND HIS ANSWER WAS THAT HE KNOWS
A GREAT DEAL ABOUT AND IS QUALIFIED TO DEAL WITH STATISTICAL
METHOD. BUT HE DID NOT MAKE FINAL DECISIONS ON ALL THE TECHNICAL
DETAILS CONCERNING THOSE METHODS.
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IN OTHER WORDS. I THINK PROFESSOR BALDUS IS QUALIFIED
AS AN EXPERT, AND WE EXPECT TO HAVE HIM TESTIFY THAT HE EMPLOYED
GROSS TABULATION METHODS IN ANALYSIS, THAT HE EMPLOYED MULTIPLE
REGRESSION METHODS IN ANALYSIS. I UNDERSTOOD HIS TESTIMONY TO
BE AND I THINK IT“S WITHIN HIS AREA OF COMPETENCE TO SAY THAT IN
RELIANCE UPON A STATISTICIAN, WHO CAN TELL ME WHETHER THE
TECHNICAL ASSUMPTIONS OF THESE METHODS ARE VALID AND FAIR, THAT
I CAN EMPLOY THESE METHODS MYSELF WITH THIS CONSULTATIVE HELP TO
ANALYZE DATA AND TALK ABOUT WHAT IT MEANS. IN THE ENTIRE COURSE
OF HIS CAREER, FROM THE TIME HE DID THE WELFARE STUDY, ON, IT’S
BEEN THAT KIND OF EFFORT. I DO AGREE WITH YOU THAT THERE
IS A WEB THERE OF INTERRELATIONSHIPS THAT WE“VE ATTEMPTED
THROUGHOUT HIS QUALIFICATIONS TO EXPOSE THAT TO THE COURT SO
IT’S GUITE CLEAR THAT PROFESSOR BALDUS WOULD, AS HE SAID, WOULD
NOT ACT WITHOUT THE HELP OF A STATISTICIAN. BUT I DO THINK HE
HAS EXPERTISE THAT HE’S DEMONSTRATED IN EMPLOYING STATISTICAL
METHODOLOGY IN DOING ANALYSIS.
IF 1 MAYy ~~
THE COURT: LET ME SEE IF I CAN PUT IT IN A PRACTICAL
SORT OF WAY.
IF HAVING IDENTIFIED THE PROBLEM. PROFESSOR BALDUS
TESTIFIED THAT THIS PARTICULAR TYPE OF MULTIPLE REGRESSION
ANALYSIS WAS THE BEST WAY TO ANALYZE IT, THAT MIGHT BE WORTH
SOME WEIGHT BECAUSE HE HAS SPEAKING KNOWLEDGE OF IT.
BUT IF HE DREW A CONCLUSION FROM THE ANALYSIS.
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BALDUS - VOIR DIRE
UNDERSTANDING A LITTLE ABOUT HOW THE ANALYSIS WORKED, A SOCIAL
OR LEGAL CONCLUSION, THAT THAT WOULD BE THE PRIMARY REASON THAT
YOU ARE OFFERING HIS TESTIMONY, AND THAT YOU HAVE HIS |
COUNTERPART HERE TO TELL ME ABOUT THE MULTIPLE REGRESSION
ANALYSIS.
18 THAT ESSENTIALLY WHAT WERE — WHAT YOURE SAYING?
MR. BOGER: 1 EXPECT WE‘LL DO SOME OF THAT, YOUR HONOR
BUT I ALSO SUBMIT HES QUALIFIED TO SAY THAT I PERFORMED THESE
KINDS OF ANALYSES AND THEN WE WOULD EXPECT TO BRING THE
STATISTICIAN TO SAY THAT THESE KINDS OF ANALYSES ARE
APPROPRIATE.
IN OTHER WORDS, AS FOR A PRACTICAL PHYSICAL MATTER.
PROFESSOR BALDUS HAS SPENT THOUSANDS OF HOURS ACTUALLY SAYING TO
SOMEBODY IN A COMPUTER, RUN THIS. RUN THIS ANALYSIS. TAKE THESE
TECHNIQUES WHICH I AM AWARE OF GENERALLY WHICH MY STATISTICIAN
TELLS ME ARE VALID FOR THIS PARTICULAR QUESTION. AND DO THIS.
PUT THESE FACTORS IN. LEAVE THOSE OUT AND GIVE ME WHAT COMES OUT
OF THE SOUP.
AND PROFESSOR BALDUS, WE CONTEND. IS AN EXPERT IN
LOOKING AT THE NUMBERS THAT APPEAR, AND SAYING THESE NUMBERS, IF
THE STATISTICIAN IS RIGHT THIS IS A VALID METHOD. THESE NUMBERS
MEAN SOMETHING IN A LEGAL CONTEXT.
THE COURT: THAT’S WHAT I UNDERSTOOD.
MR. BOGER: ALL RIGHT.
THE COURT: ALL RIGHT, ALONG THOSE LINES. I‘LL ALLOW
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HIM TO EXPRESS HIS OPINION AND OTHERWISE TESTIFY.
MR. BOGER: THANK YOU, YOUR HONOR.
MS. WESTMORELAND: YOUR HONOR. I WOULD LIKE TO NOTE AN
OBJECTION. AT LEAST TO ANYTHING THAT EXTENDS INTO AN AREA THAT
WOULD POSSIBLY BE AN AREA THAT WOULD BE BEYOND HIS LEVEL OF
EXPERTISE INTO THE STATISTICAL REALM IN WHICH WE FEEL HE IS NOT
QUALIFIED TQ TESTIFY. |
THE COURT: IT 18 CLEAR THAT HE DOES NOT HAVE A
DOCTORATE IN STATISTICS, MS. WESTMORELAND, BUT ANYBODY THAT HAS
BEEN AROUND THE AREA FOR AS LONG AS HE HAS BEEN AROUND THE AREA
MUST HAVE LEARNED SOMETHING. AND I THINK YOUR OBJECTION PROBABLY
GOES MORE TO THE WEIGHT THAN TO SUBSTANCE.
IF HE TESTIFIED THAT THE METHODOLOGY HE EMPLOYED IS
THE ONLY WAY TO DO IT IN THE WHOLE WORLD, I MIGHT NOT GIVE THAT
MUCH WEIGHT. BECAUSE HE’S BEEN RELYING ON WHAT ONE STATISTICIAN
OR TWO OR THREE HAVE TOLD HIM. SO I THINK THE STATISTICAL
METHODOLOGY IS FAIR GAME AND HIS TESTIMONY MAY BE ENTITLED TO
LESS WEIGHT THERE.
THE SOCIAL AND LEGAL CONCLUSIONS. ON THE OTHER HAND,
MIGHT BE WORTH A GREAT DEAL MORE BECAUSE OF HIS LEGAL TRAINING.
MS. WESTMORELAND: THANK YOU. YOUR HONOR.
THE COURT: ALL RIGHT.
/ DIRECT EXAMINATION
BY MR. BOGER!
8. PROFESSOR BALDUS, AT THE OUTSET OF YOUR TESTIMONY, I‘D LIKE
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BALDUS - DIRECT
TO HAVE YOU IDENTIFY BRIEFLY FOR THE COURT AND DESCRIBE BRIEFLY
FOR THE COURT THE TWO PRINCIPAL STUDIES WHICH YOU‘VE MENTIONED
DURING THE COURSE OF YOUR QUALIFICATIONS UPON WHICH YOU WILL
GIVE TESTIMONY IN TODAY AND THE COMING DAYS?
THE COURT: WHAT EXHIBIT ARE YOU ABOUT TO TALK ABOUT?
MR. BOGER: YOUR HONOR, I“M ACTUALLY NOT ABOUT TO TALK
ABOUT AN EXHIBIT AT THIS MOMENT.
THE COURT: GO AHEAD.
MR. BOGER: I SIMPLY WANT TO GET CLEAR IN THE COURT’S
MIND CLEARER THAN I“M SURE I DID IN MY OPENING ARGUMENT WHAT ARE
THE TWO STUDIES THAT WE‘RE GOING TO BE DISCUSSING IN PROFESSOR
BALDUS’ TESTIMONY. ud
THE WITNESS: THE FIRST STUDY, YOUR HONOR, WE REFER TO
AS THE PROCEDURAL REFORM STUDY. AND IT ADDRESSES THREE ISSUES.
ONE, IS HOW DOES THE GEORGIA SUPREME COURT CONDUCTS
PROPORTIONALITY REVIEW. AND HOW EFFECTIVE IS THAT REVIEW IN
DEATH SENTENCE CASES.
THE SECOND QUESTION WE SOUGHT TO ADDRESS IN THIS
STUDY, WAS WHETHER THE PATTERN or SENTENCING BEFORE FURMAN,
DIFFERED FROM THE PATTERN OF SENTENCING AFTER FURMAN.
THE THIRD SUBJECT THAT WE SOUGHT TO ADDRESS WAS WHAT
EVIDENCE WAS THERE, IN THE POST-FURMAN PERIOD OF DISPARATE
TREATMENT OR. EVIDENCE pF DISPARITIES ALONG RACIAL LINES WITH
RESPECT TO THE RACE OF THE VICTIM AND RACE OF THE DEFENDANT.
NOW OF THESE THREE QUESTIONS, THE ONE THAT WE ARE
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BALDUS - DIRECT
GOING TO BE ADDRESSING IN THIS PROCEEDING IS THE THIRD ONE.
THAT’S THE ONLY PART OF THAT STUDY THAT WE-“LL BE PRESENTING THIS
COURT EVIDENCE FROM.
NOW, IN THE CHARGING AND SENTENCING STUDY, WE‘RE
FOCUSED ON THAT THIRD QUESTION ALSO, AS WE ARE ONLY CONCERNED
WITH ONE QUESTION. AND AT THIS STAGE IN THE CHARGING AND
SENTENCING STUDY, THAT IS. IN THE POST-FURMAN PERIOD. IS THERE
EVIDENCE OF DIFFERENTIAL TREATMENT ALONG RACIAL LINES.
NOW THE TWO STUDIES DO, HOWEVER, THESE TWO PARTS, HAVE
IMPORTANT DIFFERENCES.
THE PROCEDURAL REFORM STUDY FOCUSES ON THE LAST TWO
AND THE TWO MOST IMPORTANT STAGES IN THE CHARGING AND SENTENCING
PROCESS.
THE STUDY FOCUSES ON OFFENDERS WHO HAVE BEEN CONVICTED
OF MURDER AT TRIAL. THE POPULATION OF INTEREST.
THE COURT: ARE YOU TALKING ABOUT THE FIRST STUDY
OR SECOND?
THE WITNESS: FIRST STUDY, PROCEDURAL REFORM STUDY.
WE LOOK AT OFFENDERS WHO HAVE BEEN CONVICTED OF A
MURDER AT A GUILT TRIAL.
WE THEN EXAMINE THE DISPARITIES IN THE RATES AT WHICH
PROSECUTORS ADVANCED THOSE CASES TO PENALTY TRIAL SO THAT A JURY
MAY HAVE A CHOICE AS TO WHETHER THEY WILL BE SENTENCED TO LIFE
OR DEATH.
THE NEXT FOCUS IS ON THE DECISION OF THE SENTENCING
—— i— S—— — ——— ———. . S— ———— — T— —— — —— ——. — — —
123
BALDUS ~ DIRECT
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JURY AT THE PENALTY TRIAL.
2 WE CAN ADDRESS THOSE TWO QUESTIONS. WE CAN ALSO
3 ADDRESS A THIRD QUESTION, WHICH IS WHAT ARE THE COMBINED EFFECTS
4 OF THOSE TWO DECISION POINTS. THAT IS, GIVEN A MURDER
5 CONVICTION AT TRIAL. WHAT ARE THE DIFFERENCES IN THE LIKELIHOOD
LJ 6 THAT DEFENDANTS WITH BLACK VICTIMS WILL RECEIVE DEATH SENTENCES
7 AS OPPOSED TO DEFENDANTS WITH WHITE VICTIMS.
8 $0 IN EFFECT THERE ARE THREE DIFFERENT EMPIRICAL
b4 QUESTIONS THAT CAN BE ANSWERED BY LOOKING AT THE DATA FROM THE
10 PROCEDURAL REFORM STUDY.
11 NOW. THE CHARGING AND SENTENCING STUDY DIFFERS FROM
12 THE PROCEDURAL REFORM STUDY IN TWO IMPORTANT PARTICULARS.
13 THE FIRST 1S. THAT IT IDENTIFIES AS A STARTING POINT
14 FOR ANALYSIS. A DIFFERENT UNIVERSE OF OFFENDERS. WE LOOK
13 INITIALLY AT ALL PEOPLE DURING THE TIME PERIOD THAT WE COVERED.
16 WHO WERE CONVICTED OF MURDER. FOR VOLUNTARY MANSLAUGHTER AND
17 SENTENCED TO STATE PRISON.
18 NOW, WITH THAT POPULATION OF PEOPLE, WE ARE ABLE TO
» 19 ASK THE TWO QUESTIONS THAT WE ASK IN THE FORMER STUDY, THAT IS,
20 HOW THOSE PEOPLE WERE SENTENCED IF THEY REACH THE PENALTY TRIAL.
21 WOULD THE PROSECUTOR SEEK A DEATH SENTENCE, IF THERE WERE A
22 CONVICTION OBTAINED AT TRIAL.
23 BUT IN ADDITION, WE CAN GO BACK FARTHER INTO THE
24 PROCESS AND ASK WHETHER THERE WERE ANY DIFFERENTIALS THAT APPEAR
23 ALONG RACIAL LINES IN THE INDICTMENT DECISION, BECAUSE THE
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INFORMATION ALLOWS US TO EXAMINE WHO ARE THE PEOPLE THAT ARE
INDICTED FOR MURDER. WHO ARE THE PEOPLE THAT ARE INDICTED FOR
VOLUNTARY MANSLAUGHTER. |
THEN WE CAN LOOK AT ANOTHER POOL OF CASES, THOSE THAT
WERE INDICTED FOR MURDER, AND WE CAN ASK HOW MANY OF THOSE
PEOPLE WERE ALLOWED TO PLEAD OUT TO EITHER A LESSER INCLUDED
OFFENSE. THAT IS. VOLUNTARY MANSLAUGHTER, OR WERE ALLOWED TO
PLEAD TO MURDER IN EXCHANGE FOR A WAIVER OF PENALTY TRIAL.
WE THEN LOOK AT THE RESIDUE OF PEOPLE AT THAT STAGE IN
THE PROCESS. AND WE CAN ASK OF THOSE THAT WENT TO TRIAL BEFORE A
JURY AT A GUILT TRIAL FOR MURDER CHARGES, HOW MANY OF THEM WERE
CONVICTED OF MURDER. HOW MANY OF THEM WERE CONVICTED OF
VOLUNTARY MANSLAUGHTER. AND WE CAN DETERMINE WHETHER THERE ARE
ANY RACIAL DISPARITIES WITH RESPECT TO THAT DECISION.
SO THE SHORT OF IT IS, YOUR HONOR, THAT WITH THIS
SECOND STUDY. WE ARE ABLE TO FOCUS IN ON THE SERIES OF DECISION
POINTS THAT MUST BE TAKEN BEFORE SOMEONE WILL FINALLY ADVANCE TO
DEATH ROW.
ANOTHER IMPORTANT DIFFERENCE IN THIS STUDY IS THAT WE
HAVE IN THE CHARGING AND SENTENCING STUDY MEASURES FOR THE
STRENGTH OF THE EVIDENCE IN THE CASE.
WHEN WE DID THE PROCEDURAL REFORM STUDY, WE WERE
ACUTELY AWARE OF THE FACT THAT WE HAD NO MEASURES FOR STRENGTH
OF EVIDENCE. AND WE TRIED TO HANDLE THAT PROBLEM AND DID HANDLE
IT BY RESTRICTING OUR CASES TO THOSE IN WHICH A CONVICTION WAS
BALDUS - DIRECT
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OBTAINED AT TRIAL. AND FOR US, THE FACT OF A CONVICTION AT
2 TRIAL INDICATED THAT THERE WAS PRETTY GOOD EVIDENCE THAT THE
3 PERSON HAD COMMITTED THE MURDER. THAT WAS OUR WAY OF
4 ELIMINATING THAT PROBLEM. WE COULD GET A GROUP OF PEOPLE WHO
S HAD SIMILAR STRENGTH OF EVIDENCE OR ROUGHLY SIMILAR, BECAUSE
“ é THEIR CASES WERE ABLE TO SUPPORT A GUILT CONVICTION AT TRIAL.
7 THE COURT: WAIT A MINUTE. YOU HANDLED THAT FACTOR BY
a SAYING EITHER A YES-NO, STRONG CASE CONVICTION, WEAK CASE NO
Ed CONVICTION, WITHOUT DISCRIMINATING BETWEEN MANSLAUGHTER OR
10 MURDER?
11 THE WITNESS: THAT'S RIGHT -- OH. IN THAT CASE. YOUR
12 HONOR, WHAT WE HAD WAS SIMPLY A POPULATION OF PEOPLE WHO HAD
13 BEEN CONVICTED OF MURDER AT TRIAL. AND WE, IN THE FIRST STUDY.
14 WE CONSIDERED NO ONE ELSE. WE JUST CONSIDERED THOSE PEOPLE. SO
15 AS FOR THE STRENGTH OF THE EVIDENCE, OUR THEORY WAS THAT THERE
1&6 WAS AT LEAST ENOUGH EVIDENCE TO SUSTAIN A CONVICTION AT TRIAL.
17 PERIOD.
18 S0 WE HAVE NO OTHER INDEPENDENT MEASURES OF STRENGTH
» 19 OF THE EVIDENCE IN THAT FIRST STUDY.
20 HOWEVER, WE REALIZED IN THE SECOND STUDY WHEN WE WERE
21 GOING BACK FARTHER AND DEEPER IN THE PROCESS. LOOKING AT
22 INDICTMENT DECISIONS, PLEA BARGAINING DECISIONS, CONVICTIONS AT
23 TRIAL, WE REALIZED THAT STRENGTH OF THE EVIDENCE WAS IMPORTANT.
24 THEREFORE, IF WE WERE GOING TO BE ABLE TO CONTROL VALIDLY FOR
23 THE IMPORTANT BACKGROUND FACTORS THAT MAY INFLUENCE THESE
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DECISIONS. THAT WE NEEDED SOME MEASURE OF STRENGTH OF EVIDENCE.
SO IN THIS SECOND STUDY WE HAVE DEVELOPED A SERIES OF
MEASURES OF THE STRENGTH OF EVIDENCE 80 THAT WE CAN CONTROL FOR
THOSE BACKGROUND FACTORS WHEN WE’RE EXAMINING THE EARLIER
DECISIONS AND ALSO WHEN WERE EXAMINING THE LATER DECISIONS AS
WELL.
THE COURT: THAT'S WHAT I WAS ASKING YOU ABOUT. IN
THE SECOND STUDY, IS YOUR STRENGTH OF THE EVIDENCE CRITERIA
WHETHER OR NOT THERE WAS A CONVICTION?
THE WITNESS: NO.
THE COURT: WELL, I MISUNDERSTOOD YOU. I UNDERSTAND
THAT TO BE YOUR POSITION WITH REFERENCE TQ THE FIRST STUDY, BUT
AS TO THE SECOND ONE, YOU HAVE MORE --
THE WITNESS: WE HAD ADDITIONAL MEASURES. THAT'S
RIGHT, YOUR HONOR. WE CAN LIMIT THOSE. WE DO HAVE AN ANALYSIS
IN THE SECOND STUDY THAT EXACTLY PARALLELS THE FIRST, THAT IS.
WE LIMIT THE ANALYSIS TO PEOPLE WHO WERE CONVICTED AT TRIAL.
BUT IN ADDITION, WE HAVE FURTHER MEASURES OF STRENTH OF
THE EVIDENCE THAT WE USE IN THE SECOND STUDY AS WELL SO THAT WE
CAN DIFFERENTIATE EVEN AMONG THOSE CONVICTED AT TRIAL. WE CAN
MAKE DIFFERENTIATIONS IN TERMS OF HOW SERICUS THE, HOW STRONG
THE EVIDENCE IS, RATHER.
THE STUDY HAS ONE FURTHER DIFFERENCE THAT IS
IMPORTANT, THAT 1S, THE QUESTIONNAIRE IN ADDITION TO HAVING
EVIDENCE, OR HAVING QUESTIONS RELATING TO STRENGTH OF THE
—— ——— ———— — — ———— ———— ————— —— ——
127
BALDUS - DIRECT
EVIDENCE, HAS MORE EXTENSIVE EVIDENCE WITH RESPECT TO OTHER
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2 AGGRAVATING AND MITIGATING FACTORS. IT ALSO COVERS
3 CHRONOLOGICALLY A LONGER TIME PERIOD.
4 BY MR. BOGER:
bo] @. PROFESSOR BALDUS. DID YOU ORIGINALLY SET OUT TO DO TWO
% & STUDIES?
7 A. NO.
8 @. WHAT LED YOU TO COMPLETION OF TWO, NOT ONE?
9 A. WELL, THE, THE AVAILABILITY OF FUNDING ENABLED US TO DO THE
10 SECOND STUDY, AND THATS WHAT ENABLED US TO DO THE FIRST STUDY.
11 TOO.
12 BUT WE STARTED OUT ON THIS PROJECT. BY DEFINING A
13 RELATIVELY NARROW PROJECT IN DIMENSION. BUT WE ALWAYS HAD IN
14 MIND THE POSSIBILITY OF GETTING ADDITIONAL FUNDING SO THAT WE
13 COULD ENLARGE IT, SO THAT WE COULD BUILD FROM ONE STUDY TO THE
146 NEXT WITHOUT WEAKENING THE POTENTIAL APPLICABILITY OF ANY OF THE
17 INFORMATION THAT WE COLLECTED BEFORE.
18 AND THAT-S THE WAY WE DEVELOPED THIS WHOLE PROJECT THAT
pt
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THREE HUNDRED CASES. AND THEN WE EXPANDED THAT TO SIX HUNDRED
21 CASES.
22 AND THEN WE GOT ADDITIONAL FUNDING FOR THE CHARGING
23 AND SENTENCING STUDY, SO THEN WE ADDED ANOTHER THOUSAND
24 SIXTY-SIX CASES. SO AS WE HAVE GAINED MORE KNOWLEDGE OF THE
235 SYSTEM THROUGH QUR WORK AND ACQUIRED ADDITIONAL FUNDS, WE HAVE
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BALDUS -~ DIRECT
BEEN ABLE TD EXPAND THE STUDY AND FOCUS IN ON DIFFERENT POINTS
IN THE PROCESS THAN WE WERE ABLE TO DO ORIGINALLY.
ORIGINALLY, THE ONLY THING THAT WE WERE GOING TO FOCUS
ON WAS THE JURY DEATH SENTENCING DECISION.
R. LET ME, YOU’VE GIVEN, I THINK, NOW, AN OVERVIEW OF THE
PROCEDURAL. REFORM STUDY AND THE CHARGING AND SENTENCING STUDY
AND THE CHRONOLOGY OF THE TWO. WE“RE GOING TQ GO, OF COURSE,
THROUGH BOTH OF THEM IN SOME DETAIL.
LET ME LAY THE FOUNDATION FOR THAT BY ASKING YOU TO
WHAT LED YOU TO UNDERTAKE THIS EMPIRICAL RESEARCH? WHERE DID
THESE STUDIES HAVE THEIR GENESIS?
A. THE PROCEDURAL REFORM STUDY IS THE FIRST ONE. I“LL START
WITH THAT, THE IDEA OF THAT STUDY CAME FROM FURMAN V. GEORGIA,
AND GREGG V. GEORGIA. THOSE STUDIES, PARDON ME, THOSE DECISIONS
OF THE UNITED STATES SUPREME COURT IDENTIFIED EMPIRICAL
QUESTIONS THAT WERE IMPORTANT FROM A LEGAL STANDPOINT OR
IMPORTANT FROM A SOCIAL SCIENCE STANDPOINT IN THAT THEY ADDRESS
QUESTIONS OF HOW DISCRETION IS EXERCISED IN A COMPLEX DECISION
MAKING PROCESS.
AND ALSO THEY ADDRESS QUESTIONS THAT WERE AMENABLE TO
RIGOROUS ANALYSIS THROUGH AVAILABLE SOCIAL SCIENCE METHODS.
I THINK I MENTIONED EARLIER THAT I HAD REACHED THE
CONCLUSION THAT UNAMBIGUOUS ANSWERS WERE NOT LIKELY TQ BE
FORTHCOMING ON THE QUESTION OF THE DETERRENT EFFECT OF CAPITAL
PUNISHMENT, BUT THAT THESE DECISIONS OF THE SUPREME COURT,
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BALDUS ~ DIRECT
PRESENTED IMPORTANT EMPIRICAL ISSUES THAT WERE BEGGING FOR SOME
SORT OF ANSWER, AND GIVEN MY INTEREST IN THIS SUBJECT. AND THESE
METHODS OF STUDYING THESE QUESTIONS. I UNDERTOOK WITH PROFESSORS
PULASKI AND WOODWORTH A PLAN TO STUDY THEM.
THE FIRST THING THAT WE -—
Q. LET ME ASK YOU FIRST, PROFESSOR BALDUS,
A. YES,» SIR.
Q. == JUST SO THE RECORD IS CLEAR, WHAT WERE THOSE QUESTIONS
THAT WERE BEGGING FOR ANALYSIS, AS YOU PUT IT?
A. THE FIRST QUESTION WAS CONCERNED WITH THE EFFECTS OF THE NEW
SYSTEMS THAT HAD BEEN ADOPTED IN RESPONSE TO FURMAN V. GEORGIA.
THE DECISION OF THE COURT IN GREGG PROCEEDED ON THE
ASSUMPTION THAT THE PROCEDURAL SAFEGUARDS ADOPTED IN FLORIDA.
TEXAS, GEORGIA AND A VARIETY OF JURISDICTIONS WERE ADEQUATE TO
INSURE THAT DEATH SENTENCING DECISIONS WOULD BE NEITHER
EXCESSIVE NOR DISCRIMINATORY.
AND THOSE WERE ASSUMPTIONS THAT THE COURT INDULGED.
THEY SUGGESTED THAT THEY MIGHT BE INTERESTED IN CONSIDERING THE
POSSIBLE RESEARCH BEARING ON THAT, BUT MY PRINCIPAL CONCERN WAS
WHETHER OR NOT THOSE ASSUMPTIONS FROM THE STANDPOINT OF SOCIAL
SCIENCE THEORY WERE VALID.
THE SECOND CONCERN WAS THAT, SECOND QUESTION WAS
WHETHER OR NOT THE SYSTEM OF PROPORTIONALITY REVIEW ESTABLISHED
BY THE GEORGIA LEGISLATURE AND APPLIED BY THE GEORGIA SUPREME
COURT WOULD PROVIDE AN IMPORTANT GUARANTEE AGAINST EXCESSIVE OR
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BALDUS - DIRECT
DISCRIMINATORY DEATH SENTENCING.
AND THOSE WERE THE QUESTIONS THAT WE SOUGHT TO
ADDRESS, TO SEE WHETHER THOSE ASSUMPTIONS OF THE COURT WERE
CORRECT.
AND ALSO TO SHED LIGHT ON THE MORE GENERAL QUESTION OF
THE EXERCISE OF DISCRETION IN HIGHLY COMPLEX DECISION MAKING
SYSTEMS. AND WHAT WERE THE CHARACTERISTICS OF THE PATTERNS OF
THE EXERCISE OF DISCRETION IN SUCH A SYSTEM.
@. DID YOU CONSULT ANY LITERATURE OR SOURCES BEFORE YOU BEGAN
TO DESIGN A RESEARCH PLAN FOR THIS STUDY?
A. YES. I DID.
@. AND HOW DID YOU FIND TIME TO DO THAT WITH ALL THE OTHER
THINGS THAT WERE OCCUPYING YOUR CALENDAR?
A. I APPLIED FOR AND RECEIVED FROM THE UNIVERSITY OF IOWA
PARTIAL LEAVE OF ABSENCE IN THE YEAR 1977-778, SO 1 WAS ABLE TO
DEVOTE A SUBSTANTIAL AMOUNT OF MY TIME DURING THAT PERIOD TO A
REVIEW OF -- I WOULD SAY, IN PASSING. THAT IT WAS NOT SIMPLY MY
REVIEW: BUT IT WAS A REVIEW ALSO CONDUCTED BY MY CO-AUTHOR.
CHARLES PULASKI -- OF ALL OF THE CASE LAW, PARTICULARLY THE CASE
LAW DEVELOPED BY THE UNITED STATES SUPREME COURT ON THE
QUESTION, TO IDENTIFY WHAT THE FACTUAL QUESTIONS WERE THAT WERE
IMPLICIT IN THE HOLDINGS IN THOSE CASES, AND ALSO TO LOOK AT
THE SOCIAL SCIENCE LITERATURE ON THE EMPIRICAL STUDY OF
SENTENCING, BOTH DEATH SENTENCING AND SENTENCING MORE BROADLY
DEFINED IN MANY OTHER CONTEXTS.
131
BALDUS - DIRECT
1 AND THERE’S A RICH EMPIRICAL LITERATURE THAT ADDRESSES
< THE QUESTION. ONE QUESTION THAT WE WERE CONCERNED WITH, THAT IS,
1S THERE DIFFERENTIAL TREATMENT ALONG RACIAL LINES IN SENTENCING
PRACTICES OR ALONG THE LINES OF SOME OTHER ILLEGITIMATE FACTORS,
SUCH AS POVERTY. SEX. SOCIAL SCIENTISTS HAVE BEEN INTERESTED IN
3
4
5
% 6 THIS TOPIC FOR A LONG TIME. THERE IS A BODY OF THEORY THAT
7 PURPORTS TO EXPLAIN WHY SUCH DISPARITIES EXIST AND I READ DEEPLY
8 IN THAT LITERATURE.
9 @. AT THIS TIME, FROFESSOR BALDUS., IF YOU COULD LOOK AT WHAT
10 HAS BEEN MARKED DB-13 FOR IDENTIFICATION. LET ME ASK YOU TO
11 IDENTIFY THAT DOCUMENT, IF YOU CAN.
12 A. YES. DB-13 A BIBLIOGRAPHY WHICH LISTS THE RESEARCH THAT I
13 HAVE CONSULTED OVER THE LAST THREE OR FOUR YEARS ON THIS
14 QUESTION OF DIFFERENTIAL TREATMENT IN SENTENCING. AS WELL AS THE
15 QUESTION OF EXCESSIVENESS IN SENTENCING.
146 I MENTION IN PASSING THAT THE MATTER OF EXCESSIVENESS
17 IN SENTENCING IS ONE THAT SOCIAL SCIENTISTS HAVE GIVEN
18 RELATIVELY LITTLE THOUGHT TO, AND AS A CONSEQUENCE THERE’S NOT A
% 19 VERY SUBSTANTIAL LITERATURE ON THAT PARTICULAR QUESTION.
20 ; THIS PARTICULAR DOCUMENT, THIS PRECISE DOCUMENT WAS A
21 LIST OF REFERENCES THAT I SUBMITTED IN THE LATEST PROPOSAL THAT
22 I SENT TO THE NATIONAL SCIENCE FOUNDATION THAT WAS JUST RECENTLY
23 FUNDED.
24 THREE OR FOUR YEARS AGO, THE BIBLIOGRAPHY WAS A LOT
23 SMALLER. BECAUSE THERE-’S BEEN A TREMENDOUS QUTPQURING OF
132
BALDUS = DIRECT
EMPIRICAL WORK ON THE SUBJECT DURING THE LAST THREE OR FOUR
YEARS.
@. LET ME ASK YOU, PROFESSOR BALDUS, THERE APPEARS TO BE 102
ARTICLES INCLUDED IN THIS BIBLIOGRAPHY? DID YOU READ AT ONE
TIME OR ANOTHER DURING THE PAST FOUR YEARS EACH OF THESE ITEMS?
A. YES.
@. AND DID YOU RELY ON ANY OR ALL OF THEM IN HELPING TO SHAPE
YOUR OWN RESEARCH EFFORT?
A. YES, I ATTEMPTED AND IN FACT I WAS REQUIRED TO ON MANY
OCCASIONS WHEN I WAS SUBMITTING ORANT APPLICATIONS TO READ THIS
MATERIAL AND DISTILL IT AND SYNTHESIZE IT IN TERMS OF THE
HYPOTHESES THAT WERE SUGGESTED BY IT IN TERMS OF THE
METHODOLOGIES THAT ONE WOULD USE IN ADDRESSING THESE QUESTIONS
IN THE CONTEXT OF GEORGIA, IN TERMS OF THE MEASURES THAT ONE
MIGHT SELECT, AND IN TERMS OF THE STATISTICAL PROCEDURES THAT
ONE MIGHT EMPLOY. THESE STUDIES PROVIDED A RICH LIBRARY OF
IDEAS FOR ALL THOSE QUESTIONS AND I DREW UPON THEM ALL VERY
EXTENSIVELY.
@. AND DO THEY HELP INFORM THE JUDGMENTS THAT YOUVE ULTIMATELY
MADE ABOUT THE GEORGIA LEGAL SYSTEM THAT ARE BEFORE THE COURT IN
THIS HEARING?
A. THEY PROVIDED THE BACKGROUND FOR THE DEVELOPMENT OF THE
HYPOTHESES THAT WE EXPLORED IN THIS WORK, AND PROVIDED GUIDANCE
IN THE SELECTION OF METHODS. AND IN SOME OF THE, AT LEAST ONE OF
THE ARTICLES THAT I CAN RECALL DEALS SPECIFICALLY WITH GEORGIA.
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BALDUS - DIRECT
I THINK THERE’S MORE THAN ONE. AND THEY ARE EVEN MORE
SUGGESTIVE IN TERMS OF HYPOTHESES SINCE THEY WERE WORK DONE IN
THIS JURISDICTION.
MR. BOGER: YOUR HONOR, AT THIS TIME. I WOULD OFFER
DB-13 INTO EVIDENCE AS PART OF THE RESOURCE MATERIAL, AS PART OF
THE SECONDARY SOURCE MATERIAL ON WHICH PROFESSOR BALDUS HAS
TESTIFIED HE HAS RELIED IN DESIGNING HIS STUDY AND DEVELOPING
HIS OWN HYPOTHESES THAT SUPPORT HIS CONCLUSIONS IN THIS MATTER.
MS. WESTMORELAND: YOUR HONOR, I/D OBJECT TO THE
ADMISSION OF THIS DOCUMENT, PARTICULARLY BECAUSE IT APPEARS AT
LEAST FROM WHAT PROFESSOR BALDUS HAS JUST TESTIFIED. THAT
NUMEROUS OF THESE ARTICLES DO NOT RELATE TO GEORGIA WHATSOEVER.
WE SUBMIT THAT THAT IS AN IRRELEVANT ITEM AT THIS
POINT NOT WHAT HAS BEEN DONE BY SOMEONE ELSE IN THE PAST. BUT
WHAT HE HAS DONE IN THE STUDY IN THIS CASE. AND IF HE CAN GO
THROUGH AND POINT TO SPECIFIC THINGS HE MAY HAVE RELIED ON IN
EACH ARTICLE, THAT MIGHT BE SOMETHING DIFFERENT. BUT JUST TO
SAY THIS IS HIS KNOWLEDGE THAT HE HAS HAD I THINK GOES BEYOND
THE REALM OF RELEVANT EVIDENCE AT THIS STAGE.
THE COURT: THE EXTENT OF THE PROFFER. AS I UNDERSTAND
IT. IS TO SHOW THE EXTENT OF OUT-OF-COURT STUDY AND NOT TO
INTRODUCE THOSE DOCUMENTS OR THEIR CONTENTS FOR THE PURPOSES OF
PROVING ANY FACT ASSERTED THEREIN.
MR. BOGER: THAT’S CORRECT, YOUR HONOR.
THE COURT: IN OTHER WORDS, IT IS IMPLICIT IN THE
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BALDUS -~ DIRECT
WEIGHING OF THE EXPERT'S TESTIMONY AS TO THE EXTENT OF
PREPARATION, AS TO WHAT HE HAS RELIED ON. WHETHER THATS GOGD OR
BAD, SOMETHING YOU CAN TEST. BUT AT THIS POINT IN TIME, ALL
THAT SAYS IS THAT HE RELIED ON THESE DOCUMENTS. IT DOESN‘T SAY
TO WHAT EXTENT OR HOW MUCH. IT“S NOT IN EVIDENCE. AND I“M NOT
GOING TO LET HIM PUT THEM IN EVIDENCE. EXCEPT UNDER THE PROPER
APPLICATION OF THE RULE.
80 ILL ADMIT IT.
MR. BOGER: 1I‘M SORRY, I MISSED THE LAST --
THE COURT: I WILL ADMIT IT.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
?. PROFESSOR BALDUS, IN YOUR REVIEW OF THIS EXTENSIVE
LITERATURE, WERE THERE ANY PARTICULAR ITEMS ON WHICH YOU DREW
MORE HEAVILY IN THE DESIGN OF YQUR RESEARCH, THE DEVELOPMENT OF
HYPOTHESES TO GUIDE YOUR RESEARCH OR THE ACTUAL CONDUCT OF DATA.
| COLLECTION OR ANALYSIS?
A. WELL, AS 1 SUGGESTED TO YOU, I SYNTHESIZED THIS MATERIAL.
AND MANY OF THEM CONTRIBUTED, BUT THERE ARE A SERIES OF ARTICLES
PARTICULARLY THAT DEAL WITH CAPITAL PUNISHMENT. AND THEY HAD A
PARTICULARLY IMPORTANT IMPACT ON MY THINKING ABOUT THIS PROBLEM.
@. LET ME ASK YOU, IF YOU WOULD, PROFESSOR BALDUS, TO TURN TQ A
DOCUMENT THAT WEVE IDENTIFIED AS DB-14 AND ASK IF YOU CAN
IDENTIFY THAT DOCUMENT?
A. YES. DB-14 IS AN ARTICLE. ENTITLED "THE NEGRO AND CRIME" BY
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BALDUS ~ DIRECT
GUY B. JOHNSON, IN VOLUME 217 OF THE ANNALS. THE AMERICAN
ACADEMY. THE PUBLICATION FROM 1941. IT WAS ONE OF THE PIONEER
RESEARCH EFFORTS IN THIS AREA OF THE LAW.
@. AND IS THIS ONE OF THE ARTICLES UPON WHICH YOU HAVE
ESPECIALLY RELIED IN FRAMING YOUR STUDY?
A. WELL IT’S AN IMPORTANT ARTICLE AND IT DID INFLUENCE MY
THINKING ABOUT THIS AS IT HAS EVERYONE WHO HAS WORKED IN THIS
AREA BECAUSE IT WAS THE FIRST ARTICLE TO IDENTIFY THE IMPORTANCE
OF EXAMINING NOT MERELY THE RACE OF THE OFFENDER BUT ALSO THE
RACE OF THE VICTIM. THAT THE KEY TO UNDERSTANDING THE EXERCISE
OF DISCRETION, AT LEAST AS IT BEARS ON MATTERS CONCERNING RACE.
1S TO IDENTIFY THE RACIAL VICTIM, THE DEFENDANT-VICTIM RACIAL
COMBINATION. IT SEEMS SQ OBVIOUS TO US NOW, BUT THIS WAS THE
GREAT INSIGHT IN MY ESTIMATION THAT GUY JOHNSON MADE AT THIS
TIME, IN THAT ARTICLE AND THATS PART OF THE APPROACH THAT WE
TAKE IN OUR WORK TODAY.
@. AND DID YOU REVIEW THIS ARTICLE IN PREPARATION FOR THE WORK
THAT YOU UNDERTOOK?
A. YES. I READ THIS ARTICLE MANY YEARS AGO. THIS IS ONE OF THE
BASIC READINGS FOR ANYBODY WHQ PLUNGES INTO THIS LITERATURE.
MR. BOGER: YOUR HONOR, WE MOVE ADMISSION OF DB-14
INTO EVIDENCE. PROFESSOR BALDUS HAS TESTIFIED THAT IT IS ONE OF
THE SEMINAL ARTICLES THAT AFFECTED HIS APPROACH TO THE STUDY
HE“S UNDERTAKEN.
ONCE AGAIN, WE-RE NOT INTRODUCING IT FOR THE TRUTH OF
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BALDUS ~ DIRECT
THE CONTENTS THEREOF, BUT AS LITERATURE IN THE FIELD ON WHICH
PROFESSOR BALDUS HAS RELIED IN FORMING HIS OWN STUDIES, MAKING
HIS CONCLUSIONS.
THE COURT: MS. WESTMORELAND?
MS. WESTMORELAND: YOUR HONOR. I OBJECT TO THE
ADMISSION OF DB-14. I HAVE NO OBJECTION TO THE FACT THAT
PROFESSOR BALDUS MAY HAVE RELIED ON THIS ARTICLE, I THINK IT’S
PERFECTLY CLEAR FROM HIS TESTIMONY. BUT THE ARTICLE ITSELF. I
THINK, WOULD OBJECT. IT WOULD BE IRRELEVANT AT THIS STAGE AND
WOULD BE HEARSAY. AND NOT ADMISSIBLE.
MR. BOGER: YOUR HONOR, I DON’T BELIEVE THERE'S A
HEARSAY OBJECTION WHEN AN EXPERT TESTIFIES THAT HE‘S RELIED ON
OTHER WORKS IN THE FIELD, AND WHEN THOSE WORKS IN THE FIELD
INDEED HAVE BEEN REGULARLY RELIED UPON. AS 1 BELIEVE HE’S
TESTIFIED. BY OTHER REPUTABLE EXPERTS.
FEDERAL RULE OF EVIDENCE 703 GOVERNS THAT MATTER,
SPECIFICALLY, I THINK. I DON‘T HAVE MY COPY, I THINK THE COURT
DOES, BUT —-
THE COURT: WELL. I“VE GOT YOU WHERE I WANT YOU, MR.
BOGER.
MR. BOGER: I HOPE IM RIGHT. NOW THAT IT’S NOT IN
FRONT OF ME.
I SUPPOSE 1 COULD FRAME TO PROFESSOR BALDUS A QUESTION
THATS FRAMED THERE, ABOUT WHETHER THESE ARE THE TYPE ARTICLES
REASONABLY RELIED UPON BY EXPERTS IN HIS FIELD IN FORMING
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BALDUS - DIRECT
OPINIONS.
THE COURT: THE INTERPLAY OF 703 AND. WHAT IS IT, 803
(18) =~
MS. WESTMORELAND: YES, YOUR HONOR, 803(18).
THE COURT: =—— IS WHAT WORRIES ME. I DO NOT WISH TO
BURDEN THE RECORD WITH ALL THE LITERATURE IN THE FIELD. WE‘RE
NOT HOLDING A SYMPOSIUM WERE HOLDING AN EVIDENTIARY HEARING.
1 DO NOT HAVE ANY PROBLEM WITH HIS RECITING EITHER IN
HOC VERBA AS SEEMS TO BE REQUIRED BY SECTION 18 OF 803 OR EVEN
GENERALLY, SOME FACT OR CIRCUMSTANCE OUT OF THE ARTICLE THAT HE
RELIES UPON AS A FACT.
IF YOU’RE OFFERING IT TO PROVE THE TRUTH OF THE MATTER
ASSERTED THEREIN. I PRESUME THAT’S WHY YOURE OFFERING IT,
OTHERWISE IT WOULDN‘T BE RELEVANT AT THIS STAGE, BECAUSE WE ARE
PAST OTHER THINGS. THEN, I WOULDN’T MIND HIM EITHER PUTTING THE
PORTION HES RELYING ON OR IF MS. WESTMORELAND CAN’T ARTICULATE A
GOOD REASON, EVEN SUMMARIZING WHY HE RELIED ON IT. OR WHAT THERE
I3 IN THE ARTICLE.
BUT I DON’T WISH TO BURDEN THE RECORD UNNECESSARILY.
AND I THINK A FAIR READING OF 703 AND 803 SUGGEST THAT IT IS THE
DATA CONTAINED THEREIN WHICH IS ADMISSIBLE UNDER EITHER THEORY.
IF YOU WOULD LIKE TO HAVE A MINUTE. LOOK AT SOME CASE
LAW TO TRY TO CHANGE MY MIND, I“LL BE GLAD TO DO IT.
WE“LL TAKE ABOUT A TEN-MINUTE RECESS ANYHOW.
MR. BOGER: THANK YOU, YOUR HONOR.
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BALDUS - DIRECT
THE COURT: ALL RIGHT.
(RECESS TAKEN.)
MR. BOGERI YOUR HONOR, I THINK THE COURTS RULING ON
THE USE OF THIS DOCUMENT IS PERFECTLY SUFFICIENT FOR OUR EXPERT
AND FOR OUR CASE. AND THEREFORE WE HAVE NO ADDITIONAL LAW TO
CITE TO YOU, AND HAVENT REALLY LOOKED FOR ANY DURING THE COURSE
OF THE BREAK. |
THE COURT: ALL RIGHT.
DAVID C. BALDUS.
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS!
DIRECT EXAMINATION (CONT’D)
BY MR. BOGER!
0. PROFESSOR BALDUS, ARE THERE ADDITIONAL ARTICLES BEYOND THAT
ONE BY GUY JOHNSON UPON WHICH YOU HAVE RELIED IN EITHER
FORMULATING YOUR RESEARCH HYPOTHESES OR DEVELOPING YOUR METHODS
THAT YOU EMPLOYED IN DATA COLLECTION AND ANALYSIS?
A. YES. THERE ARE SEVERAL THAT I COULD JUST MENTION TO YOU
BRIEFLY,» AND POINT OUT THEIR SIGNIFICANCE.
@. ALL RIGHT, IF WE WILL FIRST TURN TO DB-15 FOR
IDENTIFICATION. AND I‘LL ASK IF YOU CAN IDENTIFY THAT DOCUMENT?
A. DB-15 IS ANOTHER IMPORTANT EARLY WORK IN THIS LITERATURE.
IT IS ENTITLED "RESEARCH NOTE ON INTER- AND INTRA-RACIAL
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BALDUS ~ DIRECT
HOMICIDES" BY HAROLD GARFINKEL, AND IT’S A 1949 PUBLICATION IN
THE JOURNAL CALLED "SOCIAL FORCES."
AND THE IMPORTANT PART OF THIS RESEARCH IS THE FOCUS
ON THE SPECIFIC STAGES IN THE PROCESS. THIS WAS THE FIRST PIECE
OF RESEARCH THAT 1M AWARE OF WHERE THE INVESTIGATOR WENT IN AND
EXAMINED THE DECISION POINTS IN THE SAME WAY WE“RE DOING IN THIS
STUDY.
~ AND IN ADDITION, HE EXAMINED THE OVERALL EFFECTS OF
ALL OF THESE DECISION POINTS. COMBINED IMPACT STARTING OUT WHEN
CASES WERE INDICTED. AND LOOKING AT THE FINAL DEATH SENTENCING
RESULTS. |
$0 IT’S IMPORTANT IN THE DEVELOPMENT OF THE
LITERATURE, AND OUR UNDERSTANDING OF WHAT ARE THE MOST EFFECTIVE
AND USEFUL WAYS OF APPROACHING A PROBLEM LIKE THIS.
@. LET ME ASK YOU, IF YOU WOULD. TO TURN TO DB-1& FOR
IDENTIFICATION AND IF YOU CAN, IDENTIFY THAT DOCUMENT.
A. YES, DB-16 IS THE RESULT OF AN EMPIRICAL STUDY, AND IT IS
ENTITLED “RACE. JUDICIAL DISCRETION AND THE DEATH PENALTY" BY
MARVIN WOLFGANG AND MARK RIEDEL.
THIS IS AN IMPORTANT STUDY BECAUSE IT REPRESENTED THE
FIRST STUDY OF CAPITAL PUNISHMENT WHERE AN EXTENSIVE EFFORT WAS
MADE TO GATHER INFORMATION ON A VARIETY OF BACKGROUND FACTORS
THAT WOULD BE CF OBVIOUS IMPORTANCE IN EVALUATING THE DEATH
WORTHINESS OF A PARTICULAR CASE.
THIS PARTICULAR STUDY FOCUSED ON DEATH SENTENCING IN
IS
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BALDUS - DIRECT
RAPE CASES OVER THE ENTIRE SOUTH.
THE QUESTIONNAIRE THAT WAS DEVELOPED AND USED IN THIS
STUDY WE OBTAINED AND FOUND IT VERY HELPFUL IN SPECIFYING
POTENTIALLY RELEVANT VARIABLES.
FURTHERMORE. I MENTIONED TO YOU EARLIER THAT I HAD .
ANALYZED SOME DATA FROM A STUDY BY MARVIN WOLFGANG, AND THIS IS
A REPORT OF THE ENTIRE STUDY AND WE ANALYZED THE DATA FROM THE
STATE OF ARKANSAS » AND WERE ABLE TO GAIN A VERY SUBSTANTIAL
AMOUNT OF INSIGHT INTO THE KINDS OF PROBLEMS THAT WOULD BE
INVOLVED IN ANALYZING THESE DATA WITH MORE CURRENT QUANTITATIVE
METHODS.
THIS 18 ONE OF THE FIRST STUDIES OR AT LEAST IT IS THE
FIRST STUDY THAT I KNOW OF THAT WAS ABLE TO CONTROL FOR
BACKGROUND FACTORS IN THE CAPITAL SENTENCING CONTEXT.
THE LIMITATION OF STUDY, HOWEVER. IS THAT IT ONLY
ANALYZES ONE BACKGROUND FACTOR AT A TIME. THERE’S NOT AN
ATTEMPT TO CONTROL SIMULTANEOUSLY FOR MANY BACKGROUND FACTORS.
Q. WERE YOU ABLE TO GAIN SOME DIRECTION IN YOUR RESEARCH DESIGN
BY STUDIES OF THIS SORT, THAT HAD LIMITATIONS AS WELL AS STUDIES
THAT HAD STRENGTHS?
A. OH, PRECISELY. IT WAS A STUDY OF THE LITERATURE AND A STUDY
OF THE CRITIQUES THAT PEOPLE WERE DOING OF ONE ANOTHER’S STUDIES
THAT GIVES YOU AN IDEA ABOUT WHAT THE NEXT STEP NEEDS TO BE IN
TERMS OF POLISHING AND MAKING MORE VALID YOUR RESEARCH DESIGNS.
AND WAS CONSIDERED A VERY GOOD STUDY AT THIS TIME. AND STILL IS.
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BALDUS - DIRECT
AND IT WAS ONE WE HOPED TO BUILD UPON AND WE DID.
THAT'S WHY WE GOT THE DATA, SO WE COULD ANALYZE IT AND
REALLY UNDERSTAND WHAT WE HAD TO GO TO NEXT TO IMPROVE UPON THE
APPROACH THAT WAS TAKEN IN THIS ANALYSIS.
@. JUST ONE MATTER. YOU SAY YOU HAD GOTTEN THE ARKANSAS DATA.
THIS STUDY CONTAINED DATA THAT WENT BEYOND ARKANSAS?
A. YES. THESE DATA EMBRACED THE WHOLE CONFEDERACY. THE SAMPLE
SIZE WAS WELL OVER A THOUSAND CASES, I‘M SORRY, THREE THOUSAND
RAPE CONVICTIONS DRAWN FROM ALL OVER THE SOUTH. SO THE
CONCLUSIONS HERE ARE BROAD-RANGING IN TERMS OF JURISDICTIONS.
BUT THE ONE WE FOCUSED ON. BECAUSE IT HAD BEEN USED IN
MAXWELL V. BISHOP, IS THAT IT HAD BEEN USED IN AN ACTUAL
JUDICIAL CONTEXT. AND THAT’S WHAT WE IN OUR BOOK WANTED TO
FOCUS ON, WAS HOW COURTS DEAL WITH THESE IN THE CONTEXT OF
PARTICULAR PIECES OF LITIGATION. THAT'S WHY WE FOCUSED ON
ARKANSAS.
@. LET ME ASK YOU. WERE THERE ANY HYPOTHESES EXPRESSED IN THIS
ARTICLE THAT WERE FRUITFUL FOR YOU IN DEVELOPING YOUR RESEARCH?
A. WELL, THE ARTICLE MAKES THE POINT THAT YOU MUST LOOK AT THE
DEFENDANT-VICTIM RACIAL COMBINATION TQ GET A FULL INSIGHT INTO
THE EFFECT OF RACIAL FACTORS ON THE EXERCISE OF DISCRETION.
THAT WAS DONE IN THIS CASE, AND IT FOUND SIGNIFICANT EFFECTS.
AND THAT PROVIDED THE BASIS FOR A HYPOTHESIS THAT YOU MIGHT FIND
SIMILAR EFFECTS IN SIMILAR CONTEXTS AT LATER TIMES.
@. WHAT KIND EVERY EFFECTS? I“M SORRY.
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BALDUS ~ DIRECT
A. RACIAL EFFECTS. THE CENTRAL FINDING OF THIS WORK WAS THAT
IF A PERSON WERE CONVICTED AT TRIAL OF A CRIME OF RAPE, THAT THE
LIKELIHOOD OF RECEIVING A DEATH SENTENCE WAS SUBSTANTIALLY
HIGHER, SOMETHING ON THE ORDER OF THIRTY PERCENTAGE POINTS
HIGHER IF THE VICTIM WERE WHITE AND THE DEFENDANT WERE BLACK
THAN IF THE DEFENDANT AND VICTIM INVOLVED IN THE OTHER RACIAL
COMBINATION.
@. LET’S TURN IN THIS REVIEW OF LITERATURE YOU-VE RELIED UPON
TO DE-17 AND ASK YOU IF YOU CAN IDENTIFY THIS DOCUMENT?
A. YES, NOW THIS DOCUMENT, WHICH IS ENTITLED "RAPE, RACE AND
DEATH PENALTY IN GEORGIA." PUBLISHED IN THE AMERICAN JOURNAL OF
ORTHOPSYCHIATRY. VOLUME 45, 1975, IS A. AN ANALYSIS OF THE
SUB-SET OF THE DATA THAT WERE EMBRACED IN THE STUDY THAT WE JUST
LOOKED AT. THAT IS. THE STUDY DB-146. DB-17 ANALYZES A SUB-SET
OF THOSE DATA.
THE COURT: ALL OF THIS IS PRE-FURMAN DATA?
THE WITNESS: YES. SIR.
AND THE STRENGTH OF THIS STUDY WAS THAT IT INVOLVED A
MULTIVARIATE STATISTICAL ANALYSIS. THIS WAS THE FIRST STUDY IN
THE CONTEXT OF CAPITAL PUNISHMENT RESEARCH THAT USED MULTIVARIATE
STATISTICAL PROCEDURES.
BY MR. BOGER:
@. WOULD YOU EXPLAIN VERY BRIEFLY ~- I KNOW WE“RE GOING TO GO
INTO THIS LATER —-— BUT WHAT MULTIVARIATE STATISTICAL TECHNIGUES
CAN PERMIT ONE TO DO?
143
BALDUS - DIRECT
Ty
A. YDUR HONOR. IF YOU COULD TURN TO PAGE &66 OF THIS EXHIBIT. I
CAN EXPLAIN CONCRETELY WHAT IT MEANT BY THAT.
I MENTIONED TO YOU EARLIER. THAT THE NOTION OF A
MULTIVARIATE PROCEDURE I3 ONE THAT WILL HOLD CONSTANT BACKGROUND
FACTORS AND PRODUCE A SITUATION WHERE YOU CAN VIEW ALL OF THE
PEOPLE CONSIDERED IN YOUR ANALYSIS AS BEING COMPARABLE IN TERMS
OF SPECIFIC FACTORS THAT HAD AN OBVIOUS EFFECT ON THE DEATH
SENTENCING RESULTS. AND THIS PROCEDURE, KNOWN AS THE MULTIPLE
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DISCRIMINANT FUNCTION ANALYSIS, IS ABLE TO HOLD CONSTANT A
10 VARIETY OF FACTORS SIMULTANEOUSLY.
11 AND THOSE ARE THE FACTORS THAT ARE LISTED ON TABLE 1.
12 IN THE EARLY RESEARCH, THE INVESTIGATORS HAD
13 CONTROLLED FOR ONE VARIABLE AT A TIME. THAT IS, THEY WOULD LOOK
14 AT THE INJURY TO THE VICTIM, AND THEY WERE ABLE TO TO SEE THAT
15 | INJURY TO THE VICTIM ITSELF WOULD NOT EXPLAIN THE RACIAL
146 DISPARITY THAT THEY OBSERVED IN THE SENTENCING OUTCOME. AND
17 |THEY WOULD DO THAT ONE AT A TIME.
18 BUT THAT DOESN‘T ANSWER THE QUESTION OF WHAT EFFECT
® 17 WOULD YOU OBSERVE IF YOU CONTROLLED FOR THEM ALL SIMULTANEOQUSLY,
20 AND THIS IS THE FIRST PIECE OF RESEARCH THAT DOES THIS. THIS IS
21 THE FORERUNNER OF THE APPROACH THATS COMMONLY USED IN
22 DISCRIMINATION LITIGATION TODAY, THAT IS MULTIPLE REGRESSION
23 ANALYSIS.
24 @. AND WERE THE RESULTS OF THAT MULTIPLE DISCRIMNANT FUNCTION
23 ANALYSIS, THEMSELVES, AT ALL SUGGESTIVE TO YOU?
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BALDUS - DIRECT
A. YES, THEY SUGGEST THAT IN THE STATE OF GEORGIA. AT LEAST
DURING THIS EARLY PERIOD IN THE HISTORY OF THIS STATE, THAT
THERE WERE STRONG RACIAL EFFECTS OBSERVED IN THE DATA CONCERNING
THE SENTENCING OF DEFENDANTS CONVICTED OF RAPE. THAT IF THE
BLACK DEFENDANT HAD A WHITE VICTIM AND WAS CONVICTED OF RAPE
THAT HIS CHANCES OF RECEIVING A DEATH SENTENCE WERE
SUBSTANTIALLY HIGHER THAN THOSE EXPERIENCED BY OTHER DEFENDANTS.
8. DO YOU RECALL FROM THIS ARTICLE, TALKING ABOUT THE EARLY
PERIOD, WHAT PERIOD ARE WE TALKING ABOUT?
A. YES, THIS WAS DURING THE PERIOD OF 194%, I THINK, THROUGH
1964. SOMEWHERE IN THAT PERIOD.
THE RESEARCH COLLECTION EFFORT WAS UNDERTAKEN IN THE
YEAR OF 1964, I BELIEVE. |
@. ALL RIGHT. PROFESSOR BALDUS, IF YOU COULD TURN TO DOCUMENT
THATS BEEN MARKED FOR IDENTIFICATION AS DB-18, I WILL ASK YOU
IF YOU CAN IDENTIFY THAT DOCUMENT?
A. YES, DB-17 IS A PIECE KNOWN AS "ARBITRARINESS AND
DISCRIMINATION UNDER POST-FURMAN AND CAPITAL STATUTES."
@. WHO WERE THE AUTHORS OF THAT?
A. WILLIAM BOWERS. AND GLENN PIERCE.
THIS PIECE IS IMPORTANT IN A NUMBER OF WAYS. FIRST,
ITS THE FIRST SYSTEMATIC ANALYSIS OF POST-FURMAN DATA.
SECONDLY, IT INTRODUCES OR CONTROLS FOR BACKGROUND
FACTORS.
A LIMITATION ON IT IS BECAUSE OF THE DATA THEY WERE
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143
BALDUS - DIRECT
USING, THEY WERE UNALBE TO CONTROL SIMULTANEOUSLY FOR A VARIETY
OF BACKGROUND FACTORS. THEY WERE USING F.B.I. DATA, AND THE
ONLY FACTOR OF IMPORTANCE THAT THEY. OF MAJOR IMPORTANCE THEY
WERE ABLE TO CONTROL FOR WAS WHETHER OR NOT THE CASE INVOLVED A
CONTEMPORANEOUS FELONY.
THE STUDY IS IMPORTANT IN THE CONTEXT OF THIS
PROCEEDING, BECAUSE IT FOCUSES PRECISELY ON GEORGIA. AS WELL AS
OTHER JURISDICTIONS. BUT IT HAS DATA THAT RELATES SPECIFICALLY
TO THE STATE OF GEORGIA. AND THOSE DATA HAVE CONTROLS FOR THE
PRESENCE OF A CONTEMPORANEOUS OFFENSE.
@. DO YOU RECALL WHETHER THOSE DATA SHOWED ANY SIGNIFICANT
RACIAL EFFECTS?
A. YES, THEY DO. THEY SUGGEST. EVEN AFTER YOU CONTROL FOR THE
PRESENCE OF A CONTEMPORANEOUS OFFENSE, ON PAGE $599 OF THIS
EXHIBIT, YOU CAN SEE FROM THAT TABULATION THAT THEY SHOW
SIGNIFICANT RACE OF VICTIM DISPARITIES BETWEEN SENTENCING RATES.
THE RATES ARE ON THE ORDER OF 29 AND 20 FOR WHITE VICTIM CASES,
AND FOR BLACK VICTIM CASES, THEY’RE SUBSTANTIALLY LESS.
@. YOU DO RELY ON BOWERS AND PIERCE‘S WORK IN PART IN THE
|FORMULATION OR THE EXECUTION OF YOUR OWN STUDIES?
A. YES, IT SUGGESTED THAT THERE WAS A POSSIBILITY THAT THIS
WOULD BE A JURISDICTION WHERE ONE COULD FIND EVIDENCE OF THE
EXERCISE OF DISCRETION IN THESE KINDS OF CONTEXTS.
RA. WERE THERE ANY LIMITATIONS THAT YOU SAW IN THAT WORK THAT
HELPED YOU DEVELOP YOUR OWN METHODOLOGY HERE?
146
BALDUS - DIRECT
Fy
A. YES. THERE ARE SUBSTANTIAL LIMITATIONS ON THE POWER OF THIS
TO SUPPORT INFERENCE. ONE IS THAT IT LOOKS AT THE COMBINED
EFFECTS OF THE SYSTEM. IT DOESN’T FOCUS ON INDIVIDUAL STAGES IN
THE PROCESS. IT DOESN‘T CONTROL FOR VERY MANY BACKGROUND
FACTORS AND IT DOESN’T CONTROL FOR MORE THAN ONE BACKGROUND
FACTOR AT A TIME, SO THERE ARE DISTINCT LIMITATIONS ON IT.
@. LET”S LOOK NOW AT DB-19? AND ILL ASK YOU TO IDENTIFY THAT
DOCUMENT WHICH HAS BEEN MARKED FOR IDENTIFICATION?
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A. DB-19 IS A STUDY CALLED "RACIAL CHARACTERSTICS AND THE
10 IMPOSITION OF THE DEATH PENALTY" BY MICHAEL RADELET FROM THE
11 UNIVERSITY OF FLORIDA. AND IT USES MULTIVARIATE STATISTICAL
12 PROCEDURES TO EXAMINE STAGES IN THE FROCESS.
13 THIS IS AGAIN AN EXTENSION OF THE KIND OF METHODOLOGY
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14 THAT WAS SUGGESTED IN THE EARLIER WORK, FOCUSING IN ON SPECIFIC
13 DECISIONS. THAT IS. WHO WAS INDICTED, AND ALSO LOOKING AT THE
14 COMBINED AFFECTS OF THIS SYSTEM.
17 @. LET’S LOOK AT DB-20 FOR IDENTIFICATION. I“LL ASK YOU TO
18 IDENTIFY THAT DOCUMENT. PROFESSOR BALDUS?
® 19 Ae.
20 THE ADMINISTRATION OF THE DEATH PENALTY: THE FLORIDA EXPERIENCE.
YES, DB-20 IS AN ARTICLE BY HANS ZEISEL CALLED "RACE BIAS IN
21 AND THIS DRAWS ON DATA COLLECTED IN THE -——
22 2. OKAY.
23 A. =—— POST-FURMAN PERIOD FROM THE STATE OF GEORGIA. IT INTRODUCES
24 A CONTROL, ONE MAJOR CONTROL FOR BACKGROUND VARIABLE. THAT IZ, IT
23 CONCENTRATES ON CASES INVOLVING MURDERS DURING FELONIES. THAT
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BALDUS ~ DIRECT
WAS THE POPULATION OF SIMILARLY SITUATED CASES IN WHICH THE
AUTHOR CONDUCED HIS ANALYSIS. AND IT SHOWED THAT THERE WERE
RACE OF VICTIM EFFECTS ON THE BASIS OF THE INTRODUCTION OF THAT
TYPE OF STATISTICAL CONTROL.
AND AGAIN, THIS WAS AN EXTENSION. AGAIN, OF THE SORT
OF METHODOLOGY THAT IT APPLIED BEFORE.
A LIMITATION ON THE STUDY IS IT DID NOT HAVE
INFORMATION ON A WIDE VARIETY OF BACKGROUND FACTORS AND IT DID
NOT INTRODUCE SIMULTANEOUS CONTROLS FOR THOSE BACKGROUND
FACTORS.
THE COURT: ARE YOU THE MR. JOHN CHARLES BOGER THAT
THE AUTHOR THANKS FOR A CRITICAL READING OF THE ARTICLE?
MR. BOGER: I‘M AFRAID THAT‘S CORRECT. YOUR HONOR.
BY MR. BOGER:
@. ALL RIGHT, PROFESSOR BALDUS, IN YOUR REVIEW OF LITERATURE
THAT WE‘VE GONE OVER BRIEFLY, HAVE YOU, OR DID YOU DETECT ANY
DEVELOPMENT IN METHODOLOGICAL TECHNIQUES OVER TIME WHICH WERE
ABLE TO INFORM YOUR OWN RESEARCH DESIGN?
A. YES. IT WAS NOT ONLY MY INSIGHT BUT THE INSIGHT OF VIRTUALLY
EVERY SCHOLAR WORKING IN THE AREA THAT WAS TO PRODUCE A STUDY
THAT WOULD GIVE US CONFIDENCE AS A BASIS OF INFERENCE. THAT WE
NEEDED TO EXAMINE THE COMBINED EFFECTS OF ALL THE DECISIONS IN
THE PROCESS. BUT WE ALSO NEEDED TO GO BACK AND FOCUS ON THE
INDIVIDUAL STAGES IN THE PROCESS. THAT WAS LONGITUDINAL
STUDIES. THAT‘S TERMINOLOGY USED BY SOCIAL SCIENTISTS IN
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BALDUS - DIRECT
DESCRIBING THAT SORT OF STUDY. YOU LOOK AT THE FLOW OF CASES
THROUGH THE PROCESS. THAT’S POINT NUMBER 1.
THE SECOND POINT IS YOU NEED TO HAVE INFORMATION ON A
WIDE VARIETY OF BACKGROUND FACTORS, WIDE VARIETY OF THE FACTORS
THAT ARE OF OBVIOUS IMPORTANCE IN DETERMINING WHO IS SENTENCED
TO DEATH, WHO ADVANCES FROM ONE STAGE IN THE PROCESS TO THE
NEXT. THAT WAS THE PRINCIPAL TEACHING THAT WAS LEFT WITH US AS
A RESULT OF THIS REVIEW OF THE LITERATURE. THOSE WERE THE
FOUNDATIONS UPON WHICH WE HAD TO BUILD A VALID STUDY, AND THAT
WAS THE FOCUS OF OUR PLAN IN DEVELOPING OUR RESEARCH DESION.
0. HAVING REVIEWED THESE STUDIES THAT YOU HAVE IDENTIFIED AND
SPOKEN ABOUT. WHAT KIND OF GENERAL RESEARCH DESIGN DID YOU
YOURSELVES THEN UNDERTAKE?
A. WELL. WE UNDERTOOK WHAT IS KNOWN AS A RETROSPECTIVE STUDY.
G. ARE THERE VARIOUS KINDS OF BASIC RESEARCH DESIGNS OF WHICH
THIS IS ONE, I MEAN I —=
A. YES.
@. =-- BETTER CLARIFY THAT FOR THE RECORD?
A. EXACTLY. WE THOUGHT ABOUT THIS GUESTION AND HOW TO STUDY A
JURISDICTION. AND AT THIS POINT WE HAD NOT SELECTED ANY ONE
PARTICULAR JURISDICTION TO DO OUR STUDY IN. WE THOUGHT ABOUT
DIFFERENT WAYS THAT ONE MIGHT INVESTIGATE THIS SORT OF QUESTION.
AND IT‘S GENERALLY CONSIDERED AMONG SOCIAL SCIENTISTS,
AS WELL AS SCIENTISTS WORKING IN OTHER FIELDS, THAT THE MOST
RELIABLE TYPE OF STUDY WOULD BE A CONTROLLED EXPERIMENT. AND --
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Q. WHAT DO YOU MEAN BY CONTROLLED EXPERIMENT, PROFESSOR BALDUS?
A. IN A CONTROLLED EXPERIMENT, ONE SEEKS TO IDENTIFY THE IMPACT
OF A FACTOR IN THE FOLLOWING WAY:
IF YOU CAN LOOK ON THE EXHIBIT LABELED DB-22, I CAN
ILLUSTRATE WHAT I‘M REFERRING TO.
@. LET ME ASK YOU TO IDENTIFY THAT DOCUMENT FIRST.
A. YES.
Q. WHAT IS EXHIBIT DB-22, PROFESSOR BALDUS?
A. DB~22 1S A FIGURE FROM OUR REPORT CALLED "DESIGN OF STUDY TO
DETERMINE THE EFFECT OF IRRIGATION ON CROP YIELDS."
@. IT DOESN’T APPEAR TO HAVE ANY IMMEDIATE RELEVANCE TO THIS
MATTER. |
LET ME CLARIFY FOR THE ROCORD, WHEN YOU SAY OUR
REPORT. WHAT REPORT DO YOU MEAN?
A. THAT’S THE FINAL REPORT WE“VE WRITTEN FOR USE IN THIS
PROCEEDING.
MR. BOGER: ALL RIGHT, IT WILL BE INTRODUCED IN
EVIDENCE AT SOME LATER POINT. YOUR HONOR.
BY MR. BOGER:
QR. WHAT DOES FIGURE 2 ILLUSTRATE?
A. FIGURE 2 ILLUSTRATES HOW ONE WOULD PUT TOGETHER A RANDOMIZED
EXPERIMENTAL DESIGN TO DETERMINE THE EFFECT THAT IRRIGATION HAS
ON CROP YIELDS. AND IT ILLUSTRATES THE BASIC PROPERTIES OF SUCH
|aN EXPERIMENTAL DESIGN.
THE PURPOSE HERE IS TO TRY AND MAKE A JUDGMENT ABOUT
1350
BALDUS -~ DIRECT
>
THE EFFECT THAT IRRIGATION HAS ON PRODUCTIVITY OF SOIL.
THE FIRST STEP IN THIS PROCESS IS TO TAKE THE
POPULATION IN THIS CASE. THE FIELD, AND DIVIDE IT UP INTO RANDOM
UNITS, AND FOR THE PURPOSE OF OUR ILLUSTRATION, WE SHOW THE
PANEL IN PANEL B, DIVIDED UP INTO 24 EQUALLY SIZED GROUPS.
WE THEN RANDOMLY SELECT HALF OF THEM, THOSE ARE THE
ONES THAT ARE SHADED BLACK. THEY ARE KNOWN AS THE EXPERIMENTAL
GROUP, EXPERIMENTAL POPULATION, AND THE ONES THAT ARE SHADED 8
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WE THEN WATCH AND OBSERVE THE PRODUCTIVITY OF THE TWO
13 GROUPS OF FIELDS.
14 PANEL C SHOWS YOU ON THE LEFT THE CONTROL GROUP, THOSE
15 WITHOUT IRRIGATION, WHAT THE LEVEL OF PRODUCTIVITY IS.
16 THE PANEL ON THE RIGHT --
17 RA. WHAT ——
13 A. SORRY.
% 19 @. EXCUSE ME. PROFESSOR BALDUS.
20 IN A CONCEPTUAL TERM. WHAT IS PANEL 3 DOING?
21 A. PANEL 3 IS DESIGNED TO SHOW THE YIELD PER ACRE OF THE TWO
22 DIFFERENT GROUPS OF TRACTS, THAT IS. THE AVERAGE YIELD PER ACRE,
23 MEASURED IN TERMS OF BUSHELS.
24 @. SO IT’S A MEASUREMENT IN THAT SENSE?
23 A. THAT’S RIGHT, IT MEASURES THE OUTPUT OF THE DIFFERENT TRACTS
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BALDUS -~ DIRECT
OF LAND. OND AS YOU CAN SEE FROM LOOKING AT THE FIRST DRAWING
IN PANEL C. THAT THE YIELD PER ACRE IN THE TRACTS WITHOUT
IRRIGATION IS SUBSTANTIALLY LESS THAN THE OUTPUT OR THE YIELD IN
THE IRRIGATED TRACTS. AND THE DIFFERENCE FOR THE DISPARITY
BETWEEN THE PRODUCTIVITY OF THE TWO TRACTS IS MEASURED BY THE
SPACE IN THE RIGHT-HAND PANEL WITH THE CROSS HATCHING.
a. IS A CONTROLLED EXPERIMENT OF THE SORT YOU‘VE ILLUSTRATED IN
FIGURE 2 AN APPROPRIATE OR DESIRABLE METHODOLOGY FOR CONDUCTING
RESEARCH?
A. YES. IT IS. IT‘S CONSIDERED THE OPTIMAL METHOD FOR RESEARCH
IN MANY AREAS, AND THE REASON FOR IT IS THAT YOU ARE ABLE TO
CONTROL FOR BACKGROUND FACTORS THAT MAY AFFECT THE OUTCOME
VARIABLE OF INTEREST. IN THIS CASE, THE OUTCOME VARIABLE OF
INTEREST HERE IS THE YIELD OF THE VARIOUS FIELDS. AND THE
RANDOMIZED CONTROLLED EXPERIMENT OF THE TYPE THAT WE HAVE HERE
INSURES THAT THE GROUP THAT’S SELECTED, THE GROUP OF TRACTS OR
INDIVIDUALS, IN A DIFFERENT CONTEXT, THAT THOSE TRACTS ARE GOING
TO BE SUBSTANTIALLY THE SAME WITH RESPECT TO THE OTHER FACTORS
THAT WILL INFLUENCE CROP YIELD, LIKE THE SALINITY OF THE SOIL.
THE KIND OF GRAIN THATS USED, THE TEMPERATURE, ALL OF THOSE
FACTORS THAT INFLUENCE THE FIELD BY VIRTUE OF RANDOMLY SELECTING
THESE TRACTS» AND GROUPING THEM INTO DIFFERENT CATEGORIES, WE
INSURE THAT THE BACKGROUND FACTORS THAT MIGHT AFFECT THE
PRODUCTIVITY OF THE SOIL ARE GOING TO BE THE SAME OR VERY
COMPARABLE.
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1352
BALDUS - DIRECT
AND IT IS A CONSEQUENCE OF THAT CONFIDENCE THAT WE
HAVE, THAT THOSE BACKGROUND FACTORS ARE THE SAME. THAT GIVES US
A GREAT DEAL OF CONFIDENCE WHEN WE SEE A DIFFERENCE IN THE
YIELDS FOR THE IRRIGATED AND UNIRRIGATED TRACTS. IT GIVES US A
GREAT DEAL OF CONFIDENCE THAT THE THING THAT IS CAUSING THAT
INCREASED PRODUCTIVITY IS THE FACT OF THE IRRIGATION.
@. JUST SO THE RECORD IS CLEAR, WHEN YOU TALK ABOUT BACKGROUND
FACTORS, WHAT DOES THAT MEAN?
A. BACKGROUND FACTORS ARE THE FACTORS I JUST ALLUDED TO. THAT
IS THE OTHER FEATURES OF THE ENVIRONMENT THAT INFLUENCE THE
OUTCOME OF INTEREST. THE OUTCOME OF INTEREST HERE IS THE YIELD
OF BUSHELS PER ACRE AND THAT“S GOING TO BE INFLUENCED NOT SIMPLY
BY IRRIGATION, BUT ALSO THE QUALITY OF THE SOIL. BY THE
TEMPERATURE, BY THE WIND, BY A WHOLE VARIETY OF THINGS THAT WILL
AFFECT HOW THE CROPS GROW.
QR. WHEN YOU TALK ABOUT CONTROLLING FOR THOSE BACKGROUND
FACTORS, WHAT DO YOU MEAN BY CONTROLLING?
A. BY CONTROLLING I MEAN THE ADOPTION OF A PROCEDURE THAT
ALLOWS US TO HOLD THOSE FACTORS CONSTANT WITH RESPECT TO TWO
DIFFERENT GROUPS, THAT ARE THEMSELVES DIFFERENT WITH RESPECT TO
THE FACTOR WHOSE IMPACT WERE TRYING TO ASSESS. AND IN THIS
CASE, THE IMPACT, THIS FACTOR WE“RE TRYING TO ASSESS IS THE
IRRIGATION PROCESS.
@. DID YOU CONSIDER A RANDOMIZED CONTROLLED EXPERIMENT TO BE
FEASIBLE IN THE STATE OF GEORGIA FOR THE PURPOSES OF YOUR STUDY?
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A. NO: WE DID NOT.
Q. WHY?
A. WE CONSIDERED THE FIRST QUESTION, DIVIDING UP THE OFFENDERS
THAT MOVE THROUGH THE SYSTEM RANDOMLY. THAT‘S POSSIBLE.
| WHAT’S NOT POSSIBLE IS THE SECOND STEP, THAT IS. YOU
HAVE TO APPLY DIFFERENT TREATMENTS TO THIS RANDOMLY SELECTED
EXPERIMENTAL POPULATION, AND TO CONDUCT A CONTROLLED
EXPERIMENT OF THE CHARGING AND SENTENCING SYSTEM FOR THE
PURPOSES OF ASSESSING THE IMPACT OF RACIAL FACTORS. WOULD
REQUIRE YOU TO ALTER THE WAY CERTAIN CASES ARE PROCESSED.
SPECIFICALLY. YOU WOULD HAVE TO TAKE THE EXPERIMENTAL GROUP
OF CASES AND PROCESS THEM IN A WAY SO THAT THE PROSECUTORS AND
THE JURIES WHO PROCESSED THOSE CASES WERE IGNORANT OF THE RACIAL
CHARACTERISTICS OF THE OFFENDER AND THE VICTIM.
AND WE REALIZE FOR A GREAT VARIETY OF REASONS THAT WE
HAD NO POWER TO DO THAT, AND EVEN IF WE HAD, THAT IT WOULD RAISE
SERIOUS LEGAL AND PERHAPS CONSTITUTIONAL ISSUES AS TO THE
APPROPRIATENESS OF TREATING GROUPS OF OFFENDERS DIFFERENTLY ON
THIS DIMENSION.
Q. $0 YOU REJECTED EXPERIMENTAL, OR RANDOMIZED CONTROLLED
EXPERIMENT AS A METHOD OR RESEARCH DESIGN.
ARE THERE ANY ALTERNATIVE DESIGNS THAT YOU CONSIDERED?
A. YES, THIS PROBLEM OF A LACK OF FEASIBILITY IN CONDUCTING AN
EXPERIMENT OF THIS TYPE HAS BEEN FACED BY SCIENTISTS IN MANY
DIFFERENT CONTEXTS. AND AS A CONSEQUENCE, THE SCIENTISTS HAVE
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BALDUS « DIRECT
DEVELOPED A VARIETY OF, NOT A VARIETY. THEY HAVE DEVELOPED ONE
PRINCIPAL ALTERNATIVE WAY OF CONDUCTING THIS SORT OF RESEARCH,
AND THAT IS. A NON-EXPERIMENTAL DESIGN. AND THE TYPE OF
NON-EXPERIMENTAL DESIGN THAT WE UNDERTOOK IS KNOWN AS A RETROSPEC
NON-EXPERIMENTAL DESIGN.
AND WHAT THAT INVOLVES VERY SIMPLY IS THAT ONE LOOKS
AT A PROCESS WHICH HAS TREATED CASES IN ONE WAY OR ANOTHER. AND
IDENTIFIES THE OUTCOME OF INTEREST, AND IDENTIFIES THE FACTOR
WHOSE EFFECT YOU’RE TRYING TO GET CONTROLLED.
@. LET“S SEE IF I GET THAT TERMINOLOGY CORRECT. ~ OUTCOME OF
INTEREST MEANS WHAT?
A. THE OUTCOME OF INTEREST MEANS THE RESULT WHOSE, THE RESULT
THAT YOU’RE TRYING TO LINK UP TO A PARTICULAR CAUSAL FACTOR. IN
THIS CASE. THE IRRIGATION EXAMPLE, THE OUTCOME VARIABLE I3 THE
YIELD PER ACRE OF THE. OF THE FIELD.
NOW. I CAN ILLUSTRATE THIS SORT OF APPROACH VERY WELL
WITH AN EXTREMELY IMPORTANT STUDY THAT WAS DONE DURING THE LATE
FIFTIES, AND EARLY SIXTIES, I BELIEVE, KNOWN AS THE NATIONAL
HALOTHANE. AND THE —-
THE COURT: THE WHAT?
THE WITNESS: HALOTHANE. H-A-L-0-T-H-A-N-E.
A. THIS IS AN EXCELLENT STUDY TO ILLUSTRATE THE KIND OF
METHODOLOGY WE SOUGHT TO EMPLOY IN THIS STUDY. IT EMPLOYS
WHAT”S KNOWN AS A NON-EXPERIMENTAL RETROSPECTIVE STUDY.
NOW THE PROBLEM THAT WAS ADDRESSED IN THE HALOTHANE
TIVE
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STUDY WAS THE QUESTION OF THE SAFETY OF AN ANAESTHETIC CALLED
HALOTHANE. A SERIES OF CLINICAL EXPERIENCES HAD CREATED
SUSPICION THAT THE ANAESTHETIC HALOTHANE WAS DANGEROUS IN THAT
IT INCREASED THE RISK OF PATIENTS WHO HAD USED IT IN AN
OPERATION OF CONTRACTING FATAL LIVER DISORDERS.
AND THERE WAS CONCERN ABOUT WHETHER OR NOT THIS WAS A
SAFE DRUG TO USE.
THE PEOPLE WHO CONDUCTED THIS RESEARCH CONSISTED OF A
DISTINGUISHED PANEL OF BIOMEDICAL RESEARCHERS, AND IT WAS A
LARGE-SCALE STUDY.
THEY ALSO ADDRESSED THE QUESTION, SHOULD WE DO AN
EXPERIMENTAL STUDY. THEY DECIDED FOR A VARIETY OF REASONS THAT
WAS NOT FEASIBLE.
WHAT THEY DID INSTEAD WAS TO GO BACK AND COLLECT THE
RECORDS ON A VERY LARGE NUMBER OF OPERATIONS THAT HAD BEEN
CONDUCTED AT AN EARLIER POINT IN TIME. IN ABOUT FIFTY HOSPITALS
AROUND THE UNITED STATES. AND FOR EACH OF THOSE OPERATIONS,
THEY IDENTIFIED THE TYPE OF ANAESTHETIC THAT HAD BEEN USED AND
WHETHER OR NOT THE PERSON HAD DIED WITHIN S1X WEEKS OF THE
OPERATION. SO IN THE CONTEXT OF THAT STUDY. DEATH OR LIFE AFTER
SIX WEEKS OF THE OUTCOME MEASURE, LIKE THE YIELD PER CROP IS THE
OUTCOME MEASURE IN THIS OTHER EXPERIMENTAL CONTEXT, THE, THE
INDEPENDENT MEASURE, THAT IS, THE FACTOR THAT INFLUENCES THE
LIKELIHOOD OF DEATH. DYING, AFTER AN OPERATION THAT THEY WERE
INTERESTED IN WAS THE USE OF HALOTHANE. WHETHER THEY USED
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156
BALIUS - DIRECT
HALOTHANE AS OPPOSED TO SOME OTHER ANAESTHETIC.
THEY REALIZED, HOWEVER, THAT JUST COLLECTING
INFORMATION ON WHETHER OR NOT HALOTHANE WAS USED WAS NOT ENOUGH
TO ANSWER THE QUESTION BECAUSE THERE WERE MANY OTHER FACTORS
THAT INFLUENCED THE LIKELIHOOD SOMEBODY WAS GOING TO SURVIVE SIX
WEEKS AFTER AN OPERATION.
HOW OLD THE PERSON WAS. HOW LONG THE OPERATION WAS.
HOW SERIOUS THE ILLNESS WAS. HOW MANY PRIOR
OPERATIONS THEY HAD, ADE, A VARIETY OF FACTORS THAT AFFECT
POST-OPERATIVE MORTALITY RATES.
SO, THEY REALIZED THAT IF THEY WERE GOING TO TRY MAKE
ANY SORT OF CAUSAL INFERENCES THAT THEY COULD HAVE CONFIDENCE
IN. THEY HAD TO GO OUT AND COLLECT INFORMATION ON ALL OF THESE
BACKGROUND FACTORS THAT ALSO INFLUENCED THE MORBIDITY RATE AFTER
OPERATIONS. SO THAT'S WHAT THEY DID.
THEY COLLECTED A VERY SUBSTANTIAL AMOUNT OF
INFORMATION ON THE BASIS OF SURVEYS THAT THEY SENT OUT TO
VARIOUS HOSPITALS, AND THESE HOSPITALS COMPLETED LONG
QUESTIONNAIRES ON EACH CASE.
THESE DATA WERE COLLECTED AND THEN ANALYZED, USING
STATISTICAL TECHNIQUES THAT ARE COMPARABLE TO THE TYPE THRT WE
USED IN THIS CASE.
WHAT THEY DID WAS MATCH CASES IN TERMS OF THESE
BACKGROUND FACTORS. THEY WOULD GET CASES THAT WERE COMPARABLE
IN TERMS OF AGE OF VICTIM -— NOT THE AGE OF THE VICITM —-- THE
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AGE OF THE PATIENT. THE SERIOUSNESS OF THE, OF THE OPERATIONS
THE ILLNESS) THE DURATION OF THE OPERATION: THEY WOULD MATCH
CASES IN TERMS OF THESE CHARACTERISTICS. AND THIS IS WHAT IS
MEANT BY CONTROLLING FOR THE BACKOROUND FACTORS. GET GROUPS OF
CASES THAT WERE SIMILAR WITH RESPECT TO ALL OF THESE IMPORTANT
BACKGROUND FACTORS. THEN THEY WOULD DIVIDE THE OROUP OF CASES IN
TWO. AND THEY WOULD LOOK AT THE CASES THAT HAD USED HALOTHANE
AND LOOK AT THE CASES THAT USED DIFFERENT ANAESTHETICS. AND :
THEY WOULD COMPARE THE MORBIDITY RATES AFTER THE OPERATION AMONG
THESE TWO POPULATIONS.
AND TO THEIR SURPRISE. 1 BELIEVE, THEY FOUND THAT WHEN
YOU CONTROL FOR ALL OF THESE BACKGROUND FACTORS THAT THE
MORBIDITY RATE IN THE CASES THAT USED HALOTHANE WAS ACTUALLY
SLIGHTLY LESS THAN THE MORBIDITY RATE IN THE CASES THAT USED
ANDTHER ANAESTHETIC.
AND ON THE BASIS OF THAT RESEARCH. THE MEDICAL
COMMUNITY REACHED THE CONCENSUS THAT NOT ONLY WAS HALOTHANE NOT
DANGEROUS, AS HAD BEEN ORIGINALLY SUSPECTED. BUT THAT IN FACT IT
WAS AS SAFE AS ANY OTHER, IN FACT, IT MIGHT BE BETTER.
AS A RESULT OF THAT. THEY MADE THIS JUDGMENT THAT THIS
IS A SAFE DRUG TO USE AND AS A CONSEQUENCE THE DRUG GAINED WIDE
ACCEPTANCE.
@. PROFESSOR BALDUS, WITH RESPECT TO YOUR OWN STUDY. WERE YOU
INFLUENCED BY CONSIDERATION OF THE HALOTHANE STUDY AND OTHER
NON-EXPERIMENTAL RETROSPECTIVE STUDIES WHICH HAD BEEN CONDUCTED?
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A. YES. THE. THE HALOTHANE STUDY. AND THE APPROACH THAT IT
EMBODIES IS A MODEL FOR A WIDE VARIETY OF RESEARCH, IN THE
SOCIAL AND MEDICAL SCIENCES. AND THAT WAS THE INSPIRATION FOR
US. WE REALIZED THAT THIS SORT OF APPROACH WAS GENERALLY
ACCEPTED AS THE MOST VALID APPROACH ONE COULD USE IN THE ABSENCE
OF A CONTEXT WHERE YOU COULD USE A RANDOMIZED CONTROLLED
EXPERIMENT.
SO THAT WAS THE CONCEPTUAL BACKGROUND THAT PROVIDED
FOR US THE INSPIRATION OF HOW TO PROCEED IN TERMS OF OUR
QUESTION. THAT IS. WHAT IMPACT DID RACIAL FACTORS HAVE, WHICH 1S
ANALOGOUS TO THE HALOTHANE, HAVE ON THE OUTCOME VARIABLE. HERE
IT 1S THE DEATH SENTENCING RATE WHICH IS ANALOGOUS TO THE
MORBIDITY RATE AFTER THE OPERATION, AND THAT IS THE CONCEPTUAL
FRAME FROM WHICH WE COMMENCED OUR PLANNING FOR THIS STUDY.
MR. BOGER: BEFORE WE MOVE ON. YOUR HONOR, 1 MOVE THE
ADMISSION OF DB-22 INTO EVIDENCE. IT ILLUSTRATES PROFESSOR
BALDUS” TESTIMONY.
MS. WESTMORELAND: YOUR HONOR, I BELIEVE DB-22 IS
INCLUDED IN PROFESSOR BALDUS‘ REPORT. AND AS SUCH IS CLEARLY
SOMETHING THAT HAS BEEN RELIED UPON BY HIM, SO ON THAT BASIS, I
HAVE NO OBJECTION.
THE COURT: IT WILL BE ADMITTED.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
QR. PROFESSOR BALDUS, YOU NOW HAVE TOLD US THE CONCEPTUAL BASIS
159
BALDUS - DIRECT
FOR YOUR RESEARCH DESIGN. YOU MENTIONED AT THAT POINT YOU [W
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2 |REALLY HAD NOT SELECTED THE JURISDICTION.
3 DID THERE COME A POINT IN TIME WHERE YOU DID SELECT A
4 |JURISDICTION FOR THE STUDY?
: 5 A. YES, WE REALIZED TO ANSWER THESE QUESTIONS, TO SHED SOME
A & |LIGHT ON THESE QUESTIONS RAISED BY FURMAN AND GREGO. THAT WE
7 NEEDED TO CONDUCT AN EMPIRICAL STUDY. AND BY THAT I MEAN GO OUT
8 |AND COLLECT INFORMATION ON PEOPLE. OFFENDERS, WHO WERE PROCESSED
9 |THROUGH A CRIMINAL JUSTICE SYSTEM. AND THAT MEANT GOING TO
10 |STATES., TO A STATE. AND COLLECTING INFORMATION FROM THE RECORDS
11 OF A PARTICULAR JURISDICTION,
12 |@. NOW, WHAT JURISDICTION DID YOU EVENTUALLY SELECT?
13 |A. WE EVENTUALLY SELECTED THE STATE OF GEORGIA. WE STARTED.
14 HOWEVER, CONSIDERING FLORIDA. TEXAS, AND GEORGIA, PRINCIPALLY.
15 |WE WANTED TO PICK JURISDICTIONS IN WHICH THE SYSTEM HAD BEEN
14 |APPROVED BY THE UNITED STATES SUPREME COURT, AND AT THAT TIME,
17 THOSE WERE THE THREE LEADING JURISDICTIONS THAT MAD RECEIVED THE
18 IMPREMATUR OF THE UNITED STATES SUPREME COURT ON THEIR STATUTORY
® 19 SCHEME. |
20 WE WERE, THAT WAS THE FIRST CONSIDERATION. WHETHER THE
21 SYSTEM HAD BEEN APPROVED.
THE SECOND CONSIDERATION, HOW IMPORTANT A SYSTEM WAS N
23 IT. WE CONSIDERED THE GEORGIA SYSTEM TO BE EXTREMELY IMPORTANT
24 BECAUSE IT HAD BEEN WIDELY COPIED AFTER GREGG BY OTHER
<5 JURISDICTIONS WHOSE STATUTES HAD BEEN STRICKEN AS
1460
BALDUS - DIRECT
1 UNCONSTITUTIONAL.
2 AND SO THAT TODAY, THERE ARE IN THE UNITED STATES.
APPROXIMATELY TWENTY-TWO JURISDICTIONS THAT HAVE A STATUTE ON
THE CRITICAL FACTORS HAVING AGGRAVATING AND MITIGATING FACTORS
THAT MAY BE CONSIDERED, AND TYPE OF PROPORTIONALITY NATIONAL
3
4
5
“ & |VIEW THAT MUST BE APPLIED, THAT TRACK THE GEORGIA SYSTEM ALMOST
y ITO A TEE. SO WE WANTED TO PICK A JURISDICTION THAT HAD LOTS OF
8 |COMPANY IN TERMS OF OTHER SIMILAR APPROACHES.
9 THE OTHER CONSIDERATION THAT WE HAD WAS WE WANTED THE
10 |JURISDICTION THAT HAD A LARGE ENOUGH POPULATION OF DEATH
11 SENTENCE INMATES SO THAT WE COULD DO A STATISTICAL ANALYSIS.
12 |@. WHY WAS THAT IMPORTANT, THE NUMBERS, JUST FOR THE RECORD?
& 13 |A. WELL. THE NUMBERS ARE IMPORTANT BECAUSE YOU CAN‘T MAKE ANY
| 14 INFERENCE ABOUT THE FACTORS THAT DETERMINE WHO GETS SORTED INTO
1% |THE DEATH SENTENCING CATEGORY AS OPPOSED TO THE OTHERS, UNLESS
14 |YOU HAVE A FAIRLEY SUBSTANTIAL NUMBER OF PEOPLE WHO ARE. WHO ARE
17 |SELECTED TO RECEIVE A DEATH SENTENCE.
18 IF YOU GO TO A JURISDICTION WHERE THERE‘S BEEN FIVE OR
% 19 |SIX DEATH SENTENCES, YOU CANNOT PRODUCE VERY RELIABLE ESTIMATES
20 |OF THE FACTORS THAT ARE PROBABLY INFLUENCING THAT PROCESS. AND
21 AT THAT STAGE, GEORGIA WAS AMONG THE TOP STATES IN TERMS OF THE
22 NUMBER OF DEATH SENTENCES THAT HAD BEEN IMPOSED.
0 ALSO, WE WERE VERY MUCH CONCERNED ABOUT THE
24 AVAILABILITY OF DATA. AND WE FOUND THAT WE COULD GET ACCESS TO
o DATA HERE IN GEORGIA.
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Q. WHO PARTICIPATED IN THE DECISION TO SELECT GEORGIA AS THE
JURISDICTION FOR STUDY?
A. THAT DECISION WAS PRINCIPALLY MADE BY CHARLES PULASKI, AND
ME.
CHARLES PULASKI IS A CRIMINAL PROCEDURE EXPERT AND WAS
FAMILIAR WITH ALL THE STATUTES, AND CONSTITUTIONAL LAW. AND I
WAS FAMILIAR WITH IT AS WELL, AND THOSE WERE THE CONSIDERATIONS
THAT WE EXAMINED.
AND, OF COURSE. GEORGE WOODWORTH. WHO WAS OUR EXPERT
ON THE STATISTICAL METHODS, GAVE US OUR LEARNING ON THE QUESTION
OF HOW BIG THE SAMPLE SIZE OF DEATH SENTENCES WE NEEDED TO BE
ABLE SUPPORT ANY SORT OF RELIABLE INFERENCES ABOUT WHAT THE
FACTORS WERE INFLUENCING THE PROCESS.
S0 THE THREE OF US REALLY MADE THE DECISION. IT
WASN’T A DECISION TAKEN IN A DAY. IT WAS A DECISION DEVELOPED
OVER A LONG PERIOD OF TIME.
@. AFTER YOU HAD CHOSEN GEORGIA AS THE JURISDICTION. WHAT
STEPS, IF ANY, DID YOU TAKE TO LEARN ABOUT THE LEGAL PROCESS IN
THE STATE?
A. WE DECIDED, AND IN FACT, THIS EDUCATIONAL FROCESS WAS GOING
ON IN THE PROCESS OF MAKING THIS DECISION, WE UNDERTOOK AN
EXTENSIVE INVESTIGATION OF THE STATUTORY LAW REGULATING
GEORGIA“S CHARGING AND SENTENCING SYSTEM.
WE READ VIRTUALLY EVERY SUPREME COURT OF GEORGIA
DECISION THAT INVOLVED A DEATH SENTENCE. AND ANY OTHER
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BALDUS - DIRECT
INFORMATION OR LITERATURE THAT WE COULD PLACE OUR HANDS ON THAT
ADDRESSED THE OPERATION OF THIS SYSTEM.
WE CONSIDERED. WE WERE PARTICULARLY GUIDED BY THE
GREGG V. GEORGIA, WHICH IS A DECISION OF THE UNITED STATES
SUPREME COURT THAT PRESENTS AN EXTENSIVE ANALYSIS OF HOW THE
SYSTEM OPERATED IN THE STATE.
Q. WHAT WAS THE IMPORTANCE OF LEARNING HOW THE SYSTEM OPERATED
INSOFAR AS YOU WERE CONCERNED ABOUT YOUR RESEARCH DESIGN?
A. THE CONCERN EXPRESSED IN FURMAN AND THE CONCERN EXPRESSED IN
GREGG WAS WITH THE EXERCISE OF DISCRETION. AND WHETHER OR NOT
THAT EXERCISE OF DISCRETION WAS INFLUENCED BY INAPPROPRIATE
FACTORS. OR EXERCISED IN A COMPLETELY ARBITRARY FASHION.
TO ANALYZE THE EXERCISE OF DISCRETION. YOU HAVE TO
FIND A DECISION POINT IN THE PROCESS WHERE DISCRETION IS
EXERCISED, SO IT WAS INCUMBENT UPON US TO GET A VERY CLEAR FIX
ON WHAT THE STATES OF DECISION MAKING WERE IN THE PROCESS WHERE
DISCRETION WAS BEING EXERCISED. SO THAT IS WHY IT WAS ESSENTIAL
FOR US TO DEVELOP A CLEAR MAP OF HOW FAR THE CASES MOVE THROUGH
THE SYSTEM.
@. LET ME DIRECT YOUR ATTENTION TO, BACKWARD A MOMENT IN
EVIDENCE, TO DB-21, MARKED FOR IDENTIFICATION. AND ASK IF YOU
CAN IDENTIFY THAT DOCUMENT?
A. YES. THIS DOCUMENT WHICH IS CALLED "HOMICIDE CHARGING AND
SENTENCING PROCESS. STATE OF GEORGIA, 1973 THROUGH 79,"
PRESENTS A FLOW CHART OR A SCHEMATIC PRESENTATION OF THE
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DECISION POINTS.
@. BEFORE YOU DISCUSS IT. LET ME JUST ASK YOU A FEW QUESTIONS
FOR FURTHER IDENTIFICATION.
WHERE DID THIS CHART COME FROM?
A. THIS CHART IS PART OF A FIGURE INCLUDED IN OUR FINAL REPORT.
@. AND WHO DEVELOPED THIS FIGURE?
A. 1 DEVELOPED THIS FIGURE FOR THE PURPOSES OF THE FINAL
REPORT. HOWEVER, WE HAVE BEEN WORKING WITH COMPARABLE DRAWINGS
FOR YEARS. THIS IS A MORE ELEGANT PRESENTATION THAN MOST OF THE
ONES WE‘VE USED BEFORE, BUT THIS REPRESENTS THE SORT OF
SCHEMATIC PRESENTATION THAT WE USED TO TRY AND IDENTIFY THE
POINTS IN THE SYSTEM WE WANTED TO CONCENTRATE OUR ATTENTION ON.
@. WHAT SOURCES DID YOU DRAW ON TO CREATE THIS FIGURE?
A. WELL, I DREW ON ALL THE SOURCES THAT I JUST DESCRIBED. THAT
1S, THE JURISPRUDENCE IN THE U. S. SUPREME COURT DEALING WITH
THE GEORGIA SYSTEM. THE JURISPRUDENCE OF THE GEORGIA SUPREME
COURT, FEDERAL CASES, EVERY CASE. AND EVERY BIT OF STATUTORY
MATERIAL THAT I COULD FIND THAT RELATED TO THE OPERATION OF THE
SYSTEM HERE.
©. AND DOES THIS FIGURE REPRESENT IN A SCHEMATIC FORM YOUR
UNDERSTANDING OF THE FLOW OF CASES AND THE DECISION MAKING
PROCESSES THAT TAKE PLACE?
A. YES.
MR. BOGER: YOUR HONOR, AT THIS POINT I OFFER DB-21
INTO EVIDENCE AS REPRESENTING PROFESSOR BALDUS” CONCEPTION OF
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BALDUS -~ DIRECT
THE DECISION MAKING PROCESS AND A MATTER ON WHICH HE RELIED IN
HIS FINAL REPORT.
MS. WESTMORELAND: YOUR HONOR. I WOULD JUST LIKE TO
NOTE A COUPLE OBJECTIONS TO THIS EXHIBIT. IT HAS SOME, I HAVE
SOME PROBLEMS WITH THE REPRESENTATIONS THAT IT MAKES AS TO THE
SYSTEM OF GEORGIA. IT DOES NOT LIST PARTICULAR STATUTORY
PROVISIONS.
FOR INSTANCE, IT ALSO MENTIONS THAT THE PROSECUTOR
ACCEPTS A GUILTY PLEA, WHICH THE PROSECUTOR DOESN'T HAVE THE
AUTHORITY IN THIS STATE TO ACCEPT OR REJECT A GUILTY PLEA. IT’S
UP TO THE TRIAL COURT. |
AND IT ALSO TERMINATES WITH THE JURY SLASH JUDGE
RECOMMENDING A DEATH SENTENCE, OR RECOMMENDING A LIFE SENTENCE.
IT DOES NOT PROCEED PAST THAT TO. AT LEAST ON THE COPY THAT I
HAVE, PERHAPS THERE IS ANOTHER PAGE THAT I DON’T HAVE.
THE COURT: IT SAYS ITS ONE OF TWO.
MS. WESTMORELAND: I HAVE ONE OF TWO AND DO NOT HAVE
TWO.
THE COURT: I DO.
MR. BOGER: I“M AFRAID IN THE BUILDING OF THIS KIND OF
DOCUMENT, SOMETIMES A PAGE OR TWO GETS LOST. WE‘LL PROVIDE THE
STATE WITH PAGE 2.
MS. WESTMORELAND: THAT’S FINE. I DO HAVE THE OTHER
PROBLEM WITH THE DOCUMENT AS IT READS. OTHER THAN THAT. I THINK
IT’S PROBABLY A FAIRLEY REPRESENTATIVE PICTURE OF THE WAY THINGS
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BALDUS -~ DIRECT
WORK IN THE SYSTEM.
MR. BOGER: YOUR HONOR, I DON’T UNDERSTAND THE STATES
OBJECTION.
THE COURT: I THINK WHAT SHES SAYING IS ACCEPTANCE OF
A PLEA OF GUILTY IS DONE BY THE COURT.
AGREES TO A PLEA BARGAIN IS DONE BY THE PROSECUTOR.
IS THAT THE DISTINCTION YOU“RE MAKING?
MS. WESTMORELAND: THAT'S THE DISTINCTION I’M MAKING.
YOUR HONCR.
THE COURT: AND I UNDERSTAND THE CHART TO BE
REFLECTING THE FACT THAT THE PROSECUTOR PLEA BARGAINS THE CASE
AS INDICATED. AND NOT THAT THE PROSECUTOR IN FACT ACCEPTS THE
GUILTY PLEA UNDER, WHAT IS IT, UNDER BOYKIN VERSUS ALABAMA?
MR. BOGER: THAT’S CORRECT. YOUR HONOR,
MS. WESTMORELAND: COULD I SEE THE SECOND PAGE JUST
BRIEFLY» YOUR HONOR? I HAVE SEEN THE DOCUMENT. BEFORE BUT I
JUST DON'T ==
MR. BOGER: I“LL BE GLAD TO PROVIDE HER WITH MY COPY
FOR A MOMENT.
MS. WESTMORELAND: I NOTICE, ALSO, YOUR HONOR, ON THE
SECOND PAGE THERES INDICATION TO THE GOVERNOR, I BELIEVE,
HAVING AUTHORITY TO SUSPEND THE EXECUTION OF THE SENTENCE. AND I
BELIEVE THAT PROVISION OF THE STATUTE HAS BEEN CHANGED. AND 1
DON’T BELIEVE THAT’S AN OPTION THAT IS AVAILABLE ANYMORE. IT
WAS PROBABLY AT THE TIME THIS STUDY WAS UNDERTAKEN, BUT IT IS
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166
BALDUS - DIRECT
NOT CURRENTLY THE STATUTE AND THE WAY THE LAW EXISTS IN THIS
STATE.
THE COURT: I DON’T UNDERSTAND THAT HE 1S STUDYING FOR
THE EXERCISE OF DISCRETION AT THAT PHASE, SO I DONT KNOW THAT
IT MAKES ANY DIFFERENCE.
MS. WESTMORELAND: SUBJECT TO THOSE RESERVATIONS, YOUR
HONOR, I DONT HAVE OBJECTIONS. OTHER THAN THOSE RESERVATIONS
AS TO THE LIMITATIONS, I GUESS. ON THE USE OF THE FLOW CHART,
RATHER THAN AN ACTUAL OBJECTION TO THE FLOW CHART ITSELF.
THE COURT: ALL RIGHT, THE COURT HAVING NOTED ITS
INTERPRETATION OF ONE TERM. AND NOTING THE IRRELEVANCY OF AN
ALLEGED ERROR IN ANOTHER TERM. IT WILL BE ACCEPTED.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER: |
@. 1 BELIEVE YOU CLARIFIED THIS IN YOUR OVERVIEW. PROFESSOR
BALDUS. BUT SIMPLY TO TIE IT UP TO THIS DB-21, EXHIBIT IN
EVIDENCE, NOW. IN YOUR PROCEDURAL REFORM STUDY, WHAT STAGES OF
DECISION MAKING DID YOU DECIDE TO FOCUS UPON?
A. IN THE PROCEDURAL REFORM STUDY, WE FOCUSED ON THE LAST TWO
STAGES THAT ARE REPRESENTED ON PAGE 1 OF DB-21.
@. YOU SAY THE LAST TWO, DO YOU MEAN THE TWO NEAREST THE TOP OR
NEAREST THE BOTTOM?
A. NEAREST THE BOTTOM. THE PROSECUTORIAL DECISION TO ADVANCE A
CASE TO A PENALTY TRIAL OR NOT TO DO SC IN CASES INVOLVING
MURDER CONVICTION.
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BALDUS - DIRECT
IN FACT, WE. THE PROCEDURAL REFORM STUDY DID NOT
EMBRACE THE DECISION WITH RESPECT TO ALL CASES INVOLVING MURDER
CONVICTION. IT WAS RESTRICTED SIMPLY TO MURDER CONVICTIONS
OBTAINED AT TRIAL. AND WE DID THAT FOR THE REASON THAT I STATED
EARLIER. WE WERE ABLE TO CONFINE OUR CASES TO THOSE IN WHICH
THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A JURY VERDICT OF GUILTY.
THE SECOND STAGE IN THE PROCESS THAT WE WERE FOCUSING
ON, IN FACT, THE LAST STAGE OF THE PROCESS. THAT IS, THE JURY
DECISION TO RECOMMEND A LIFE SENTENCE OR TO RECOMMEND A DEATH
SENTENCE, IN THOSE CASES WHERE THE PROSECUTOR ELECTS TO ADVANCE
THE CASE TO A PENALTY TRIAL AFTER A CONVICTION HAS BEEN
OBTAINED.
I CAN ADD PARENTHETICALLY THERE ARE A HANDFUL OF CASES
IN WHICH A PLEA OF GUILTY IS ENTERED BY A DEFENDANT. AND THE
CASE 1S ADVANCED TO A PENALTY TRIAL. BUT THEY REPRESENT A VERY
SMALL PROPORTION OF THE CASES. WE DID NOT FOCUS ON THOSE CASES.
@. WHEN YOU SAY THEY WERE NOT FOCUSED. THEY WERE NOT INCLUDED
IN YOUR STUDY?
A. THAT’S RIGHT. THEY WERE NOT INCLUDED IN THE STUDY, EXCEPT
THERE ARE A HANDFUL OF OFFENDERS WHO PLED GUILTY WITHOUT THE
BENEFIT OF A BARGAIN AS TO THE PENALTY TRIAL. HAD THEIR CASES
ADVANCED TO A PENALTY TRIAL AND WERE ULTIMATELY SENTENCED TO
DEATH, BECAUSE WE WANTED TO INCLUDE ALL THE DEATH SENTENCES. WE
DID MAKE ONE EXCEPTION IN DEFINING OUR UNIVERSE, THAT IS, WE
INCLUDED THOSE TWO OR THREE CASES IN OUR SAMPLE, EVEN THOUGH
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BALDUS - DIRECT
THOSE OFFENDERS HAD ACTUALLY PLED GUILTY AND HAD NOT BEEN
ADVANCED TO A PENALTY TRIAL.
WE FIGURED THAT WE DIDN‘T. THAT THE JURY, IF THE JURY
WAS CONVINCED SUFFICIENTLY AS TO THEIR GUILT SO AS TO SENTENCE
THEM TO DEATH, THAT THERE WAS ADEQUATE EVIDENCE TO MEET OUR
GENERAL TEST IN INSURING THERE WAS SUFFICIENT STRENGTH OF THE
EVIDENCE.
THE COURT: LET ME ABSORB THAT FOR A MINUTE. AND I
WANT TO ASK YOU ANOTHER QUESTION ALSO.
THE WITNESS: YES.
THE COURT: ARE THERE ANY CASES IN YOUR SAMPLE WHERE
THE JUDGE HAS MADE THE DECISION ON LIFE OR DEATH?
THE WITNESS: YES, SIR, THOSE ARE THE CASES, IN FACT,
THE NORMAL PRACTICE IS, AS I UNDERSTAND IT, WHEN A PERSON DOES
PLEAD GUILTY. AND THE PROSECUTOR ADVANCES THIS CASE TO A PENALTY
TRIAL, THAT IT 1S ADVANCED BEFORE THE COURT RATHER THAN A JURY.
THE JURY MAKES THE DECISION, IT IS MY UNDERSTANDING. ONLY WHEN
THE JURY HAS ENTERED THE GUILT VERDICT IN THE MURDER TRIAL
ITSELF.
80 ALL OF THOSE CASES, TQ THE BEST OF MY KNOWLEDGE.
WHERE THE PERSON PLED AND RECEIVED A DEATH SENTENCE. RECEIVED
THE DEATH SENTENCE FROM A JUDGE.
THE COURT: NOW, THAT’S IN YOUR STUDY 1?
THE WITNESS: YES. YOUR HONOR.
THE COURT: WHAT I“VE BEEN IDENTIFYING IN MY NOTES AS
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S~1. THAT SOUNDS LIKE SENATE BILL 1, WHICH HAS BEEN THE REFORM
FOR THE CRIMINAL CODE FOR A LONG TIME.
HOW MANY OF THESE ARE IN YOUR POPULATION?
THE WITNESS: THERE ARE 3594.
THE COURT: HOW MANY ARE IN THERE THAT PLED SO THAT
YOU“RE NOT REALLY MEASURING PROSECUTORS” DISCRETION AND WERE
TRIED BY A JUDGE, SO YOU’RE NOT REALLY MEASURING JURY EXERCISE
OF DISCRETION?
THE WITNESS: I THINK THERE WERE THREE. BUT YOUR
HONOR, IF I MAY ADD. THAT THOSE CASES IN WHICH THERE WAS A PLEA,
THAT THE PROSECUTOR INDEED DID EXERCISE DISCRETION. THEY
EXCERCISED DISCRETION TO ADVANCE THEM TO A PENALTY TRIAL. SO
THAT IN THOSE CASES. IT IS CORRECT THAT THE JURY DIDN’T EXERCISE
DISCRETION, BUT THE JUDGE DID, AND I THINK THERE ARE THREE OF
THOSE CASES IN THE SAMPLE. OF THE FIRST STUDY.
BY MR. BOGER1?
@. THIS IS WAY DOWN THE ROAD. BUT JUST TO CLARIFY THIS MATTER.
AT ANY POINT IN YOUR ANALYSIS OR THIS STUDY OR THE OTHER STUDY, D
YOU SEPARATE OUT CASES IN WHICH THE JUDGES HAD MADE SENTENCING
DECISIONS FROM CASES IN WHICH JURIES HAD?
A. YES.
@. ALL RIGHT, WE WILL COVER THAT LATER, I THINK, IN YOUR
TESTIMONY.
@. NOW, PROFESSOR BALDUS, YOU’VE TOLD US ABOUT YOUR DECISIONS
ABOUT BASIC RESEARCH DESIGN.
[D
170
BALDUS - DIRECT
A. YES, SIR.
8. YOU‘VE TOLD US ABOUT DECISIONS ON JURISDICTION FOR
SELECTION. |
YOU“VE TOLD US ABOUT YOUR DECISION IN THE PROCEDURAL
REFORM STUDY ON THE DECISION POINTS TO BE STUDIED.
AFTER THOSE DECISIONS WERE MADE BY YOU AND YOUR
COLLABORATORS IN THIS RESEARCH. UPON WHAT UNIVERSE OF CASES DID
| YOU, SPECIFIC UNIVERSE OF CASES DID YOU PROCEED TO COLLECT DATA?
A. THE UNIVERSE OF CASES WAS THE GROUP OF OFFENDERS THAT I JUST
REFERRED TO. THAT 1S, PEOPLE WHO WERE CONVICTED OF MURDER AT A
GUILT TRIAL, WITH THE EXCEPTION OF THE SMALL HANDFUL OF
OFFENDERS WHO PLED AND ALSO RECEIVED THE DEATH SENTENCE.
Q. WAS THIS DURING ANY PARTICULAR PERIOD OF TIME?
A. YES, WE STARTED WITH OFFENDERS. FIRST OFFENDERS WHO WERE
CONVICTED UNDER THE NEW STATUTE WHICH WENT INTO EFFECT, MARCH
28, 1973. TO BE ELIGIBLE FOR A DEATH SENTENCE UNDER THE
STATUTE, ONE HAD TO HAVE COMMITTED THE HOMICIDE AFTER THAT DATE.
WE INCLUDED IN THE UNIVERSE ALL OFFENDERS FROM THAT
POINT UP TO THE POINT OF JUNE 30, 1978, AND THE CUT POINT
WAS WHETHER OR NOT THE PERSON HAD BEEN ARRESTED AS OF JUNE 30,
1978. THAT'S AN APPROXIMATION, THAT S NOT COMPLETELY CORRECT
BECAUSE WE USED A MEASURE THAT WAS INVOLVED IN THE RECORDS OF
THE DEPARTMENT OF CORRECTIONS. THEY CLASSIFY CASES IN TERMS OF
THE DATE SENTENCE BEGAN. AND THE DATE THAT SENTENCE BEGAN FOR
MOST OFFENDERS, HOMICIDE OFFENDERS, IS THE DATE THEY WERE
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ARRESTED. S0 THATS REALLY WHAT THE CUT POINT WAS.
IF THE DATE SENTENCE BEGAN IN THE DEFARTMEN OF
CORRECTIONS WAS AFTER JUNE 30,» THEY WERE NOT INCLUDED IN THE
STUDY.
QR. PROFESSOR BALDUS, DID YOU THEN DRAW A SAMPLE OF THAT
UNIVERSE OF CASES FOR THE PROCEDURAL REFORM STUDY?
A. NO. WE USED ALL OF THOSE CASES. THAT WAS THE UNIVERSE, AND
THAT WAS THE SAMPLE. THE UNIVERSE AND THE SAMPLE OF CASES WERE
CO-TERMINUS IN THAT STUDY.
@. SO, ALL RIGHT, WE’VE GOT THEN A SENSE FOR WHO IS BEING
STUDIED AND WHAT DECISION POINTS IN THEIR CASES ARE BEING
STUDIED.
BEFDRE WE GO ON TO SOME OF THE OTHER QUESTIONS ABOUT
THE FACTORS THAT YOU COLLECTED ON THEM AND HOW YOU COLLECTED THE
DATA. LET ME ASK YOU ABOUT FUNDING. HOW DID YOU GET MONEY TO
PROCEED WITH THIS STUDY?
A. AT THE OUTSET OF THE STUDY WE WERE FUNDED BY A SMALL GRANT
FROM THE LAW FOUNDATION AT THE UNIVERSITY OF IOWA COLLEGE OF
LAW. THAT'S HOW WE COMMENCED.
@. HOW SMALL A GRANT?
A. SMALL GRANT FROM THEM.
G. HOW SMALL?
A. OH. FIFTEEN THOUSAND DOLLARS, I BELIEVE. AND WITH THOSE
FUNDS WE WERE ABLE TO COLLECT DATA IN THE FIRST STAGE OF THE
PROCESS WHICH ILL DESCRIBE IN DUE COURSE.
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BALDUS - DIRECT
ON THE BASIS OF THE COLLECTION OF THOSE DATA. AND A
VERY RUDIMENTARY ANALYSIS OF THEM, WE SUBMITTED A, GRANTS
APPLICATIONS TO NSF. AND NIJ: AND WE WERE SUCCESSFUL IN
OBTAINING FUNDING FROM THE NATIONAL INSTITUTE OF JUSTICE.
THATS THE GRANT FROM THEM THAT I REFERRED TO EARLIER.
8. WHAT WAS THE SIZE OF THAT GRANT?
A. THAT WAS SIXTY THOUSAND DOLLARS.
AND WE-VE ALSO RECEIVED FUNDING AS I INDICATED FROM
THE ARIZONA STATE UNIVERSITY LAW SCHOOL AND SYRACUSE LAW SCHOOL.
G4. YOU MENTIONED ALSO AT ONE POINT YOU RECEIVED FUNDS FROM THE
N.A.A.C.P. LEGAL DEFENSE FUND.
DID ANY FUNDS FROM THE LEGAL DEFENSE FUND BECOME
INVOLVED IN THE PROCEDURAL REFORM STUDY?
A. NOT UNTIL THE LAST EIGHT, TEN MONTHS WHEN SOME OF THE FUNDS
THAT WE HAVE RECEIVED FROM LDF HAD BEEN USED TO SUPPORT SOME OF
THE RESEARCH. THE FINAL RESEARCH ON THIS. BUT IN TERMS OF THE
DEVELOPMENT OF THIS WHOLE PROJECT. NONE OF THE DATA COLLECTION,
PLANNING OR ANYTHING. WAS SUPPORTED BY MY FUNDS FROM THE LDF.
@. LET ME DIRECT YOUR ATTENTION TO WHAT‘S BEEN MARKED FOR
IDENTIFICATION AS DB-23 AND ASK IF YOU CAN IDENTIFY THAT
DOCUMENT?
A. YES. DB-23 18 A COPY OF THE GRANT APPLICATION THAT WAS
SUBMITTED TO THE NATIONAL INSTITUTE OF JUSTICE IN 1980 AND THAT
WAS THE APPLICATION UPON WHICH THE FUNDING DECISION WAS BASED.
@. LET ME CLARIFY. WHEN DID YOUR RESEARCH GO FORWARD? WHAT
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YEAR?
TO YOU, WE HAD A LITTLE BIT OF MONEY FROM IOWA LAW SCHOOL. WE
COLLECTED OUR PILOT DATA, AND THEN WE SUBMITTED THIS APPLICATION
IN DECEMBER OF “79, AND THE FUNDING PROCESS TAKES TIME, AND THIS
1S THE FINAL PROPOSAL WE SUBMITTED. IT WAS IN 1980. SUMMER OF
1980 1S WHEN WE RECEIVED FINAL WORD OF APPROVAL FROM NIlJ.
MR. BOGER: YOUR HONOR, WE’D OFFER DB-23 INTO EVIDENCE
AS INDICATING THE BASIS AND RESEARCH DESIGN UPON WHICH FUNDING
OF THE PROCEDURAL REFORM STUDY WAS EVENTUALLY OBTAINED.
THE COURT: WHAT RELEVANCE DOES THAT HAVE TO ANY ISSUE
HERE BEFORE US?
MR. BOGER: YOUR HONOR, I THINK IT SHOWS WHAT THE
CONCEPTION OF THE THREE CO-AUTHORS OR COLLABORATORS OF THIS
STUDY WAS. THE INTENTIONS THEY HAD AT THE TIME WHEN THEY
SOLICITED FUNDS,
THE EVIDENCE IS NOT, IT“S NOT OF OVERWHELMING
SIGNIFICANCE BUT I THINK IT DOES BEAR ON THE QUESTION OF THE
INTEGRITY OF THE STUDY, THE EXTENT TO WHICH THEY MAY HAVE
DEPARTED FROM THE ORIGINAL PROPOSAL THAT PROFESSOR BALDUS.,
WOODWORTH, ET CETERA, DESIGNATED TO THE NATIONAL INSTITUTE OF
JUSTICE.
THE COURT: I SEE IT AS A SELF-SERVING DECLARATION AND
UNTIL THERE“S AN INDICATION OF RECENT FABRICATION, AND I DON‘T
THINK THERE IS ONE ~-
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BALDUS ~ DIRECT
MR. BOGER: I“M SORRY, I THINK I MISSED THAT. YOUR
HONOR.
THE COURT: IT DOESN’ T PROVE ANY FACT OF CONSEQUENCE
IN THE CASE. YOU MAY BE BEING SENSITIVE TO THE FACT THAT YOU
HAVE FUNDED YOUR EXPERT WITNESS. AND THAT YOU’RE PUTTING THIS IN
TO SHOW HE HEWED THE LINE, THAT HE IMMEDIATELY OR THAT HE
INITIALLY INTENDED TO FOLLOW.
IF THAT IS THE REASON YOURE PUTTING IT IN. IT DOES
NOT BECOME RELEVANT AND UNTIL MS. WESTMORELAND SERIOUSLY
CHALLENGES THE INTELLECTUAL HONESTY OF THE STUDY AND I CAN‘T
THINK OF ANY OTHER REASON IT OUGHT TO COME IN, EXCEPT THAT IT
WOULD BE SELF-SERVING.,
MR. BOGER: ALL RIGHT, YOUR HONOR. WE ARE TRYING TO
BE, YOU KNOW, VERY CAREFUL IN MAKING THE RECORD.
THE COURT: IF YOU’RE SAYING THAT WASHINGTON DCES
INTELLIGENT THINGS ON THE BASIS OF GRANT APPLICATIONS, I WILL
NOT JUDICIALLY NOTICE THAT.
BY MR. BOGER:
Q. ALL RIGHT. PROFESSOR BALDUS, YOUYVE GOT JURISDICTION. YOUVE
GOT A RESEARCH DESIGN, YOU“VE GOT POPULATION, YOUVE GOT
DECISION POINTS TO LOOK AT. AND YOU’VE GOT SOME MONEY, HOW DO
YOU GO ABOUT IDENTIFYING THE DATA SOURCES AND GETTING THE DATA?
AG. IN 1978, THERE WAS A GRADUATE STUDENT WHO WORKED WITH US,
HIS NAME WAS FRED KYLE, AND HE CAME TO GEORGIA FOR A PERIOD OF
TWO WEEKS TO FIND OUT WHAT DATA WERE HERE THAT WE COULD GET
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ACCESS TO.
AND HE RETURNED TO IOWA WITH A GLOWING REPORT ABOUT
THE MANY SOURCES OF DATA THAT WE COULD OBTAIN ACCESS TO, SOME
SIMPLY FOR THE ASKING, OTHERS WOULD REQUIRE A FORMAL REQUEST.
SPECIFICALLY, HE LEARNED THAT THE RECORDS OF THE
GEORGIA SUPREME COURT WERE AVAILABLE TO THE PUBLIC, AND THAT
THOSE RECORDS INCLUDED BRIEFS OF THE ATTORNEY GENERAL.
PROSECUTORS, AND DEFENSE COUNSEL WHICH RICHLY DESCRIBED THE
CHARACTERISTICS OF THE CASES GOING THROUGH THE SYSTEM.
AND IN ADDITION, THOSE RECORDS HAD TRANSCRIPTS.
PROVIDING ADDITIONAL INFORMATION.
THAT THE DEPARTMENT OF OFFENDER REHABILITATION HAD A
SUBSTANTIAL FILE WITH BACKGROUND INFORMATION.
Q. LET ME STOP YOU FOR ONE MOMENT, PROFESSOR BALDUS.
YOU EARLIER TALKED ABOUT THE DEPARTMENT OF
CORRECTIONS. YOU’RE NOW TALKING ABOUT THE DEPARTMENT OF
OFFENDER REHABILITATION.
TO KEEP THE RECORD CLEAN. CAN YOU TELL ME THE
RELATIONSHIP BETWEEN THOSE TWO ACENCIES?
A. THE DEPARTMENT OF OFFENDER REHABILITATION IS THE SAME
ORGANIZATION AS THE DEPARTMENT OF CORRECTIONS AND OFFENDER
REHABILITATION. I BELIEVE THAT THERE“S BEEN A RECENT NAME
CHANGE. TO THE BEST OF MY KNOWLEDGE.
@. ALL RIGHT. THANK YOU. IF YOU WOULD CONTINUE, YOU WERE
TALKING ABOUT WHAT THE DEPARTMENT OF OFFENDER REHABILITATION HAD
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BALDUS - DIRECT
BY WAY OF RECORDS?
A. YES, THEY HAD ON EACH OFFENDER IN THE SYSTEM A FILE WHICH
CONTAINED A VAST AMOUNT OF INFORMATION, BUT OF THE INFORMATION
THAT WAS RELEVANT TO US, THERE ARE, THERE WAS INCLUDED
INFORMATION ON THE RACE. AGE OF THE OFFENDER, AS WELL AS
DETAILED INFORMATION ON THE PRIOR RECORD OF THE OFFENDER. THOSE
WERE THE PRINCIPAL DATA THAT WE SOUGHT TO OBTAIN ACCESS TO.
WE ALSO FOUND THAT THE BUREAU OF VITAL STATISTICS IN
THE STATE MAINTAINED A SUBSTANTIAL FILE OF INFORMATION ON THE
VICTIMS OF HOMICIDE SO THAT IF WE WANTED TO OBTAIN INFORMATION
ON THE RACIAL CHARACTERISTICS OF VICTIMS AS WELL AS THEIR
OCCUPATION AND AGE. THAT THAT INFORMATION ON ALMOST ALL CASES,
SOME EXCEPTIONS, WAS AVAILABLE IN THE BUREAU OF VITAL
STATISTICS.
@. EXCUSE ME. YOU MENTIONED THE GEORGIA SUPREME COURT, THE
DEPARTMENT OF OFFENDER REHABILITATION, AND THEN THE BUREAU OF
VITAL STATISTICS.
WERE ANY OTHER PUBLIC SOURCES OF RECORDS AVAILABLE?
A. AT THAT TIME IN 1978. THAT WAS THE EXTENT OF OUR SURVEY, AND
WE DECIDED TO LIMIT OUR DATA COLLECTION TO THOSE SOURCES FOR THE
FIRST PHASE OF OUR STUDY.
IT TURNED OUT LATER THAT THE DEPARTMENT OF PARDONS AND
PAROLES MAINTAINS AN EXTENSIVE FILE OF INFORMATION ON ALL
OFFENDERS IN THE SYSTEM.
IN 1972 1 DIDNT REALIZE THAT. BUT IN THE COURSE OF
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BALDUS ~ DIRECT
WORKING HERE ON THIS PROJECT OVER THE SUMMER OF 1979, I LEARNED
ABOUT THIS INFORMATION, AND FOUND THAT THEY KEEP DETAILED
INFORMATION ON THE CHARACTERISTICS OF THE OFFENDER. THE
CHARACTERISTICS OF THE CRIME, AND THE OFFENDER‘S PRIOR RECORD.
@. WELL, HOW DID YOU SET ABOUT GAINING ACCESS TO THIS BODY OF
RECORDS THAT YOU DESCRIBED?
A. WELL, THE SUPREME COURT ALLOWS ANYONE TO LOOK AT THEIR
RECORDS, $0 THERE WAS NO PROBLEM THERE.
THE DEPARTMENT OF OFFENDER REHABILITATION SUPPORTS A
WIDE VARIETY OF RESEARCH ENTERPRISES THAT ARE CONCERNED WITH THE
CRIMINAL JUSTICE HERE, AND THEY HAVE AN ESTABLISHED PROCEDURE
WHEREBY SCHOLARS CAN SUBMIT A DESCRIPTION OF THEIR PROJECT AND
REQUEST DATA AND THEY WILL PROVIDE THE DATA FOR YOU, IF THEY
THINK YOUR RESEARCH IS SERIOUS AND RELIABLE.
@. DID YOU MAKE INQUIRY OF WHETHER THEY WOULD PROVIDE YOU WITH
INFORMATION? |
A. YES, I SUBMITTED A REQUEST TO THE DEPARTMENT. IN 1978.
@. I WILL ASK YOU NOW TO TURN NOW. PROFESSOR BALDUS, TO DB-24
FOR IDENTIFICATION. AND ASK IF YOU CAN IDENTIFY THE SERIES OF
DOCUMENTS THERE?
A. YES. THE SERIES OF DOCUMENTS AT DB-26 ARE THE
CORRESPONDENCE BETWEEN ME AND THE OFFICIALS AT THE DEPARTMENT OF
OFFENDER REHABILITATION CONCERNING OUR REQUEST FOR DATA ON THE
OFFENDERS WHO WERE THE SUBJECT OF OUR PROCEDURAL REFORM STUDY.
@. WHAT IS THE FIRST DOCUMENT MARKED DB-24, WHAT DOES IT
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BALDUS - DIRECT
REFLECT?
A. THE FIRST DOCUMENT DATED APRIL 10, 1978, IS THE REQUEST I
PRESENTED TO MR. GEORGE COX SPECIFYING THE SCOPE OF THE
INFORMATION THAT WE WANTED, AND DESCRIBING THE VARIABLES THAT WE
HOPED THEY COULD PROVIDE INFORMATION FOR US.
Q. DID YOU INCLUDE THE VARIABLES ON WHICH YOU WANTED
INFORMATION IN YOUR LETTER?
A. YES, I HAD A TELEPHONE CONVERSATION WITH THE DEPARTMENT. AND
THEY HAD SENT ME A LISTING OF VARIABLES, AND I PICKED OUT THE
ONES FROM THEIR VAST FILE THAT I THOUGHT WERE RELEVANT TQ OUR
WORK AND SENT THEM THE REQUEST. THAT’S WHAT THIS IS.
@. THE SECOND DOCUMENT, I GUESS THE FOURTH PAGE OF WHAT'S
MARKED DR~24, CAN YOU IDENTIFY THAT?
A. YES. THE DOCUMENT DATED JANUARY 3, 1978 -— “79, RATHER, IS A
LETTER TO ME FROM MARSHA CHALKER. WHO IS AN OFFICIAL IN THE
DEPARTMENT OF OFFENDER REHABILITATION. SHE PREPARED
THE TAPE THAT CONTAINED THE INFORMATION WE REQUESTED.
THE FORMAT OF THAT TAPE IS APPENDED TO THAT LETTER. AND ——
@. WHAT DO YOU MEAN BY THAT, THE DOCUMENTS THAT FOLLOW THE
JANUARY 3. 1979. LETTER, IS THAT WHAT YOU“RE TO REFERRING TO?
A. YES. THIS WAS THE FORMAT WHICH I HAD REQUESTED THE DATA
FROM THEIR TAPE. I LOOKED AT THESE SPECIFICATIONS FOR THEIR
TAPE, I PICKED OFF THE VARIABLES 1 THOUGHT MIGHT BE USEFUL FOR
US, SPECIFIED THE COLUMN, THE FIELD, FIELDS IN WHICH THE DATA
WERE TO BE ENTERED ON THE TAPE, AND SENT IT TO MARSHA CHALKER.
179
BALDUS ~ DIRECT
THIS WAS ALL DONE IN THE CONTEXT OF MANY PHONE
CONVERSATIONS WITH HER TO DEVELOP THE MOST EFFICIENT WAY OF
HANDLING THE TRANSMITTAL OF THE DATA TO US.
@. LET ME JUST CLARIFY FOR THE RECORD. DID THE DEPARTMENT OF
OFFENDER REHABILITATION AT THAT TIME. STORE ITS DATA ON A
COMPUTERIZED MAGNETIC TAPE?
A. THAT’S CORRECT.
@. AND DID THEY HAVE, THEY HAVE INFORMATION ON THERE THAT WENT
BEYOND THE INFORMATION THAT YOU WERE SEEKING?
A. YES. WE OBTAINED ONLY A FRACTION OF WHAT THEY HAVE.
QR. WHAT WAS THE WAY IN WHICH ONE OBTAINED ONLY A FRACTION
INSTEAD OF THE ENTIRE TAPE?
A. WE ASKED THEM TO PRODUCE THE TAPE WITH ONLY THE INFORMATION
WE WANTED, AND THEN MARSHA CHALKER WROTE A COMPUTER PROGRAM
WHICH WENT INTO THEIR TAPE AND PULLED OFF THE VARIABLES AND PUT
THEM ON A TAPE FOR US.
@. THIS DOCUMENT THAT HAS AT THE TOP OF IT, “DAVID BALDUS,
LAW COLLEGE" AND BELOW THAT. "CAPITAL PUNISHMENT IN
GEORGIA, COLON. MURDER, * WHICH YOU SAID WAS APPENDED TO THE
JANUARY 3, 1979 DOCUMENT, WHO CONSTRUCTED THAT DOCUMENT?
A. I DID.
RA. AND WHAT WAS THE PURPOSE OF THAT DOCUMENT?
A. THIS WAS THE SPECIFICATION FOR MARSHA CHALKER OF THE DATA
THAT WE WANTED TO OBTAIN FROM THEM.
Q. WHAT COULD SHE DO WITH THAT DOCUMENT?
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BALDUS - DIRECT
A. SHE WROTE A COMPUTER PROGRAM ON THE BASIS OF THIS. AND
PRODUCED A TAPE FOR US WHICH CONTAINED ALL THIS INFORMATION IN
EXACTLY THE FORMAT THAT YOU SEE IT HERE, AND AS WE WILL POINT
OUT LATER, THIS CONSTITUTES THE FIRST PART OF THE QUESTIONNAIRE
FOR THE DATA IN THE PROCEDURAL REFORM STUDY.
@. LET“S LOOK DOWN TO THE VERY LAST DOCUMENT IDENTIFIED AS PART
OF DB-24 AND ASK IF YOU CAN IDENTIFY THAT?
THE COURT: WHAT. THE VERY LAST DOCUMENT?
MR. BOGER: IT“S THE LAST PAGE. YOUR HONOR. DB-24.
THE COURT: 1S THAT A LETTER?
MR. BOGER: YES. SIR, THAT’S RIGHT. YOUR HONOR.
THE WITNESS: WELL, THERE WAS A LETTER THAT CONTAINED
A SET OF MATERIAL THAT HAD BEEN ACCIDENTALLY WIPED OFF OF OUR
TAPE IN THE PROCESS OF ANALYSIS THAT WAS BEING DONE AT THE
COMPUTER CENTER. AND I REQUESTED THAT SHE REPLACE THOSE DATA AND
SHE DID. AND THIS IS THE COVER LETTER THAT CAME WITH IT.
BY MR. BOGER!
@. WERE YOU THEN, EVENTUALLY ABLE TO OBTAIN THIS INFORMATION
FROM THE DEPARTMENT OF OFFENDER REHABILITATION IN TAPE FORM AS
YOU HAD REQUESTED? |
A. YES.
MR. BOGER: YOUR HONOR, 1 MOVE THE ADMISSION OF DB~24
IN EVIDENCE, TO REFLECT HOW THIS MAGNETIC TAPE DATA WAS, WERE
OBTAINED BY PROFESSOR BALDUS.
THE COURT: THE MAGNETIC TAPE DATA THAT WE ARE
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BALDUS - DIRECT
LEARNING ABOUT IN THESE DOCUMENTS ENDS UP BEING THE DATA BASE
FOR STUDY 17?
| MR. BOGER: YOUR HONOR. I THINK HE‘LL TESTIFY. BUT
MY UNDERSTANDING IT’S AT LEAST PART OF THE DATA BASE FOR THE
FIRST STUDY. THE PROCEDURAL REFORM STUDY.
THE COURT: MS. WESTMORELAND?
MS. WESTMORELAND: YOUR HONOR, I DON’T SEE THE
RELEVANCE OF THE VARIOUS LETTERS THAT ARE ATTACHED. I CAN SEE
PERHAPS THAT THE DOCUMENTATION RELATING TO THE SPECIFIC
INFORMATION OBTAINED FROM THE DEPARTMENT MIGHT BE RELEVANT IN
TERMS OF IF THIS IS THE INFORMATION THAT WAS UTILIZED IN THE
LATER PROCEDURAL REFORM STUDY, BUT I DON’T SEE THE RELEVANCE OF
THE LETTERS THAT ARE ATTACHED TO THAT INFORMATION.
THE COURT: I DON‘T HAVE ANY PROBLEM WITH THE LETTERS
ATTACHED. UNLESS THEY HAVE BEEN SELECTED AND ASSUMING THAT THOSE
ARE ALL THE LETTERS FOR EXAMPLE, THAT D.0.R. WROTE HIM ON THIS
SUBJECT.
MR. BOGER: LET ME ASK PROFESSOR BALDUS A QUESTION OR
TWO ABOUT THAT.
BY MR. BOGER?
|@. PROFESSOR BALDUS, DID YOU RECEIVE ANY ADDITIONAL
CORRESPONDENCE FROM THE DEPARTMENT OF OFFENDER REHABILITATION
WITH RESPECT TO THE SOLICITATION OF THE TAPES?
A. NOT THAT I CAN RECALL. I MAY, THIS IS THE IMPORTANT
CORRESPONDENCE. THIS REFLECTS THE REQUESTS AND RESPONSES. I
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BALDUS ~- DIRECT
MAY HAVE RECEIVED A LETTER HERE AND THERE SUGGESTING “I’M SORRY,
WE HAVEN‘T GOTTEN IT. IT WILL BE HERE IN TWO WEEKS.® I DID NOT
KEEP CORRESPONDENCE OF THAT TYPE. THIS 1S, THIS CONSTITUTES THE
BODY OF THE CORRESPONDENCE THAT RELATES TO WHAT TRANSPIRED.
@. HAVE YOU, IN PREPARING FOR THIS LITIGATION WITH COUNSEL
SEARCHED YOUR FILE FOR LETTERS FROM THE DEPARTMENT OF OFFENDER
REHABILITATION?
A. YES. AND THESE ARE THE ONES THAT 1 FOUND THAT DIDN‘T FALL
INTO THAT OTHER CATEGORY OF TRIVIAL LETTERS.
MR. BOGER: YOUR HONOR, —-
THE COURT! ILL ADMIT 24. IF YOU HAVE ANY REASON,
SEPARATELY, TO WISH TO STRIKE THE LETTERS LATER. ILL BE GLAD TO
HEAR FROM YOU. DONT BE BASHFUL ABOUT DOING IT. BUT I THINK
NOW IT’S ILLUSTRATIVE ABOUT HOW WE GOT THE DATA BASE.
I WOULD LIKE TO TAKE ANOTHER TEN-MINUTE BREAK. AND
WHEN WE COME BACK, WELL PROBABLY RUN UNTIL ABOUT 5:30.
(RECESS TAKEN.)
DAVID C. BALDUS,
BEING PREVIOUSLY DULY SWORN, RESUMED THE WITNESS STAND AND
TESTIFIED FURTHER AS FOLLOWS!
DIRECT EXAMINATION (CONT”D)
BY MR. BOGER:
A. PROFESSOR, PROFESSOR BALDUS, HOW DID YOU SPECIFICALLY
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BALDUS ~- DIRECT
IDENTIFY BOTH DEFENDANTS WHO ARE GOING TO BE INCLUDED WITHIN THE
PROCEDURAL REFORM STUDY? WE’VE TALKED ABOUT WHAT THE CATEGORY
WAS OF PEOPLE, PEOPLE BETWEEN MARCH OF 1973, AND THE END. I
BELIEVE YOU SAID, OF 1978, WHO HAD BEEN CONVICTED OF MURDER.
ET CETERA.
BUT HOW DID YOU DETERMINE WHAT THE ACTUAL NAMES OF THE
DEFENDANTS WERE?
A. WE OBTAINED FROM THE DEPARTMENT OF OFFENDER REHABILITATION A
LISTING OF OFFENDERS WHO WERE UNDER SENTENCE FOR THE CRIME OF
MURDER AND THAT LISTING WAS SORTED OR LISTED IN ORDER OF THE
DATE SENTENCE BEGAN. IN DEPARTMENT OF OFFENDER REHABILITATION
TERMINOLOGY BASICALLY FOR WHEN CONTINUOUS INCARCERATION
COMMENCES, WHICH IS USUALLY THE DATE OF ARREST.
@. PROFESSOR BALDUS, LET ME APPROACH YOU AND SHOW YOU A
DOCUMENT AND ASK YOU IF YOU WOULD IDENTIFY IT -- WELL, I GUESS
IT NEEDS TO BE MARKED FIRST.
MR. BOGER: IF THE COURT REPORTER COULD MARK IT AS
DB~2% FOR IDENTIFICATION?
BY MR. BOCER:?
A. CAN YOU IDENTIFY THAT DOCUMENT. PROFESSOR BALDUS?
A. YES. THIS IS THE LIST OF CASES THAT I JUST REFERRED TO THAT
SORTED THE CASES BY DATE SENTENCE BEGAN, AND THIS DOCUMENT IS
LABELED, GUOTE, D.0.R.s CLOSE QUOTE, CASE LIST FOR PROCEDURAL
REFORM STUDY.
@. IS THAT THE ORIGINAL DOCUMENT YOU RECEIVED FROM THE
184
BALDUS -~ DIRECT
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DEPARTMENT OF OFFENDER REHABILITATION?
2 |A. vES.
3 MR. BOGER: YOUR HONOR, WE MOVE ITS ADMISSION INTO
4 |EVIDENCE.
“ MS. WESTMORELAND: I HAVE NO OBJECTION, YOUR HONOR.
1 6 THE COURT: LET ME ASK ONE QUESTION, MR. BOGER.
7 IT MAY BE A DISTINCTION WITHOUT A DIFFERENCE. BUT I
8 |WANT TO UNDERSTAND WHAT I‘M GETTING.
9 YOU SAY THESE ARE THE NAMES OF THE OFFENDERS UNDER
10 | SENTENCE FOR MURDER AS GIVEN BY D.O.R.
11 MR. BOGERS THAT“S CORRECT. YOUR HONOR.
12 THE COURT: DOES THAT MEAN IN CUSTODY, OR THAT WERE
13 | INCARCERATED DURING THE PERIOD?
14 MR. BOGER: I THINK THE WITNESS 1S PROBABLY BETTER
iS |ABLE TO ANSWER THAT QUESTION. YOUR HONOR. THAT DISTINCTION IS
146 NOT ONE I CAN DRAW.
17 THE WITNESS: YOUR HONOR. THE REFERENCE WAS TO PEOPLE
i8 WHO HAD BEEN IN CUSTODY AT ONE TIME. IF A PERSON WAS RELEASED
» 19 FROM CUSTODY. THEIR NAME WOULD STILL REMAIN IN THE
20 RECORDS AFTER, ! BELIEVE. 1971 OR “72. BEFORE THAT PERIOD OF
21 TIME, THEY DID NOT MAINTAIN A CURRENT FILE FOR AN OFFENDER IF
22 THEY HAD BEEN RELEASED ON PAROLE OR FINISHED THEIR TERM. BUT
23 THE CURRENT RECORD KEEPING SYSTEM IN THE PAROLE BOARD. AS I
24 UNDERSTAND IT, EMBRACES THE NAMES OF PEOPLE WHO HAD BEEN
23 RELEASED.
185
BALDUS -~ DIRECT
AND THE POINT IS, THOUGH. A PERSON IS NOT ELIGIBLE FOR PS
PAROLE FOR MURDER FOR, I THINK IT’S ELEVEN YEARS OR SEVEN YEARS,
I‘M NOT SURE, BUT ANYBODY DURING OUR PERIOD WHO WAS CONVICTED OF
MURDER FOR A CRIME COMMITTED AFTER THE EFFECTIVE DATE OF THE STATUTE,
MARCH 28, 1973. WOULD STILL BE THERE.
THE COURT: IF THEY WERE ULTIMATELY TURNED OVER TO
D.O.R.» WITHOUT PUSSYFOOTING. LET ME ASK YOU THE QUESTION MORE
DIRECTLY.
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WHAT HAPPENED IF THEY RECEIVED PROBATION?
THE WITNESS: WE DON’T KNOW -- OH, IF THEY RECEIVED a
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it PROBATION THEY WOULD NOT BE IN D.O.R.“S FILES. WE“VE NOT
12 UNCOVERED ANY CASES INVOLVING A MURDER CONVICTION IN WHICH A
13 PERSON HAS RECEIVED PROBATION. MY UNDERSTANDING OF THE LAW OF
14 GEORGIA IS THERE IS A MANDATORY LIFE OR DEATH SENTENCE IN A
15 MURDER CASE.
14 THE COURT: IT CAN BE SUSPENDED. I THINK.
27 THE WITNESS: WELL, WE CAN'T ~-
18 THE COURT: LET ME TELL YOU THE CONTEXT IN WHICH I ASK
19 THE QUESTION. I SAT ON A SENTENCING PANEL FOR A CIVIC GROUP A
20 FEW YEARS AGO, AND I WAS SITTING WITH SEVERAL STATE JUDGES. AND
21 THERE WAS A, I GUESS, A FAIRLEY TYPICAL SITUATION OF A WIFE WHO
22 HAD BEEN THE SUBJECT OF BEATINGS AND MISTREATMENT AND ALL OF
23 THAT SORT OF THING AND HAD BEEN CONVICTED OF MURDER. AND OF THE
24 THREE OR FOUR STATE JUDGES. TWO OF THEM PROBATED HER AFTER SHE
25 WAS FOUND GUILTY.
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BALDUS - DIRECT
! DON’T KNOW WHETHER THAT WAS FOR PUBLIC CONSUMPTION
OR NOT. BUT I THOUGHT I WOULD ASK, IF THIS DOES INCLUDE ANY THAT
RECEIVED PROBATION.
THE WITNESS: NO. IT WOULD NOT. AND I MAY JUST ADD TO
THAT, YOUR HONOR.
THOSE WOULD BE CASES THAT WOULD CLEARLY NOT BE
COMPARABLE TO OFFENDERS WHO WERE DEATH SENTENCED PEOPLE. IF A
CASE IS LEFT OUT OF THE STUDY, THEY AREN‘T PEOPLE WHO WOULD BE
POTENTIALLY COMPARABLE TO ONE OF THE PEOPLE IN THE STUDY WHO
RECEIVED THE DEATH SENTENCE. WE DON’T REALLY LOSE ANY VALUABLE
INFORMATION. SO, IF SUCH PEOPLE WERE OMITTED, IT DOESN‘T AFFECT
ANY OF OUR ANALYSIS.
THE COURT: I OUESS I WILL LEARN BEFORE WE ARE THROUGH
WHY YOU WOULDN‘T HAVE LOST ANYTHING. I“LL HOLD THAT TILL LATER.
BY MR. BOGER!
0. LET ME ASK YOU. PROFESSOR BALDUS, JUST TO CLARIFY THE RECORD.
YOUR FINAL REPORT TO BE SUBMITTED INTO EVIDENCE OR AT LEAST
OFFERED IN EVIDENCE IN THIS CASE. DO YOU DEFINE PRECISELY THE
PROCEDURAL REFORM STUDY UNIVERSE TO INCLUDE THOSE PEOPLE WHO ARE
CONVICTED OF MURDER AND WHOSE NAME WERE IN THE DEPARTMENT OF
CORRECTIONS FILES OR OFFENDER REHABILITATION FILES?
A. WE SO DEFINE IT. BUT WE IN FACT HAVE A SLIGHTLY MORE
EXPANSIVE DEFINITION OF THE UNIVERSE. IT ALSO INCLUDES PEOPLE
WHO HAD A DATE SENTENCE BEGAN OR WERE ARRESTED BEFORE THIS DATE.
WHO MAY HAVE APPEALED THEIR CASE TO THE GEORGIA SUPREME COURT.
IN
rend. “vinta S——" ———— ———————— ——— ——— i—— v———S— A ——— ——— ——{ SA— A i
187
BALDUS - DIRECT
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t THAT 1S. IF WE FOUND A MURDER CONVICTION THAT FELL WITHIN THE
2 PARAMETERS OF THIS STUDY, WITHIN THE FRAMEWORK OF THIS STUDY
3 TIME LIMIT. BUT AND THEIR CASE HAD BEEN APPEALED TQ THE GEDRGIA
4 SUPREME COURT, EVEN THOUGH THEY WEREN‘T IN THE DEPARTMENT OF
b= CORRECTION, WE INCLUDED THEM IN THE STUDY. THERE WERE A HANDFUL
» é OF SUCH CASES.
7 THE COURT: BUT D.0O.R. KNEW ABOUT THOSE. BECAUSE THEY
8 HAD RECEIVED THE CUSTODIAL SENTENCE. AND HAD PREVIOUSLY BEEN
y ARRESTED. IF I UNDERSTAND YOUR TESTIMONY.
10 THE WITNESS: WELL, YOUR HONOR, THOSE WOULD BE PEOPLE
11 WHO HAD NOT YET ENTERED THE SYSTEM FOR SOME REASON OR OTHER.
12 THE COURT: WELL, DID D.0.R. GIVE YOU THEIR NAMES?
( 13 THE WITNESS: NO, THERE WERE A COUPLE OF CASES WHERE
14 WE HAD NOT RECEIVED THE NAME FROM THE D.O.R.,» BECAUSE THEY HAD
13 NOT YET BEEN PROCESSED INTO THE D.O.R. SYSTEM. THESE WERE
16 PRINCIPALLY DEATH SENTENCE CASES WHERE THE OFFENDERS WERE HELD
17 IN LOCAL JAILS FOR A LONGER PERIOD OF TIME. AND AS IS NORMALLY
18 THE CASE WITH RESPECT TO PEOPLE WHO ARE SENTENCED TO LIFE
w 19 IMPRISONMENT, THOSE PEOPLE ENTER THE SYSTEM. QUITE RAPIDLY.
20 HOWEVER, THERE ARE NUMBER OF OFFENDERS WHO WERE SENTENCED TO
21 DEATH WHO REMAIN IN LOCAL FACILITIES FOR A SUBSTANTIALLY LONGER
22 PERIOD OF TIME, AND AS A CONSEQUENCE, EVEN THOUGH THEY MEET THE
23 FORMAL CRITERIA FOR INCLUSION IN OUR STUDY, THEY WERE NOT PICKED
24 UP IN THE D.0.R. LISTINGS.
23 THE COURT: DID YOU MAKE AN ATTEMPT TO INCLUDE THOSE
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WHO HAD CASES PENDING IN THE SUPREME COURT ON MURDER CASES THAT
DID NOT RECEIVE THE DEATH PENALTY?
THE WITNESS: OH. YES. SIR. WE, THE DEFINITION OF OUR
UNIVERSE WAS PEOPLE CONVICTED OF MURDER WITHOUT REGARD TO WHAT
THE SENTENCE WAS. : |
THE COURT: WHO WERE IN LOCAL JAILS AND THENCE UNKNOWN
70 D.0.R.. DID YOU INCLUDE THOSE?
THE WITNESS! YES. WE FOUND A FEW OF THOSE. © THINK
IN BOTH STUDIES, WE FOUND I THINK THREE SUCH PEOPLE WHO MAD LIFE
SENTENCES. WHEREAS WE FOUND ABOUT 28 PEOPLE IN TERMS OF THE
SCOPE OF BOTH STUDIES WHO FELL INTO THAT CATEGORY WHO HAD DEATH
SENTENCES. SO THAT THE PROBLEM, THAT IS OF DELAYED ENTRY INTO
THE DEPARTMENT OF CORRECTIONS SYSTEMS, IS BASICALLY A PROBLEM
THAT CAN BE DEFINED AS SUCH THAT ATTACHES ONLY TO DEATH SENTENCE
OFFENDERS.
BY MR. BOGER:
Q. DID YOU KNOW. PROFESSOR BALDUS, OF ANY OTHER MEANS WHEREBY
TO IDENTIFY LIFE SENTENCED INMATES WHO HAD NOT BEEN INTRODUCED
INTO THE DEPARTMENT OF OFFENDER REHABILITATION SYSTEM OTHER THAN
BY CHECKING THE SUPREME COURT OF GEORGIA RECORDS WHICH YOU‘VE
TESTIFIED YOU DID?
A. NO. THE ONLY OTHER ALTERNATIVE WOULD BE TO GO TO EACH
COUNTY AND CHECK THE RECORDS OF EACH COUNTY.
@. AND YOU DIDNT DO THAT?
A. NO. WE DID NOT DO THAT. BUT, NO. I‘LL STAY THERE.
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BALDUS - DIRECT
MR. BOGER: YOUR HONOR. I BELIEVE DB-25 HAS BEEN
ADMITTED IN EVIDENCE.
LET ME ADD THAT IF WE COULD. THAT S PROFESSOR BALDUS’
ORIGINAL, I“VE SHOWN IT TO THE STATE. WE WOULD LIKE AT SOME
POINT TO SUBSTITUTE A COPY SO HE CAN HAVE THAT FOR HIS FILE.
IM SORRY WE DID NOT GET A COPY MADE TO BE INTRODUCED. I HOPE
THAT PRESENTS NO PROBLEM TO THE COURT.
| THE COURT: ASSUMING THAT I ADMIT IT. THAT PRESENTS NO
PROBLEM WITH THE COURT. I HAVEN’T RULED.
MR. BOGER: OH. I’M SORRY.
THE COURT: I HAVE A QUESTION AFTER YOU’VE PROFFERED
IT.
MR. BOGER: I’M SORRY. THAT'S CORRECT.
LET ME MOVE ITS ADMISSION AT THIS TIME. YOUR HONCR.
THE COURT: WHERE DID YOU FIND OUT ABOUT THESE 28 AND
THESE THREE THAT YOU DID NOT, THAT YOU DID INCLUDE IN YOUR
UNIVERSE THAT YOU DID NOT OBTAIN FROM D.O.R.?
THE WITNESS: WELL, YOUR HONOR. WITH RESPECT TO THIS
STUDY, THERE WERE NOT 28. 1“M SPEAKING VERY BROADLY ABOUT THE
GENERAL QUESTION OF PEOPLE WHO WERE NOT ON THE D.0O.R. LIST. AT
THIS TIME. I THINK THERE WERE JUST A HANDFUL, MAYBE TWO OR THREE
PEOPLE, BECAUSE THE CUT POINT FOR OUR RESEARCH ON THIS PROJECT
WAS “78. WE DIDN‘T START THE. THE RESEARCH UNTIL “79. AND MOST
OF THE PEOPLE WHO HAD BEEN DEATH SENTENCED EARLIER HAD COME INTO
THE SYSTEM.
190
BALDUS ~ DIRECT
I.
THE PRINCIPAL SOURCE OF THE INFORMATION IS THE GEORGIA
2 REPORTS. WE’D READ EACH CASE IN THE GEORGIA SYSTEM. WE SCANNED
3 EVERY MURDER CASE IN THE GEORGIA REPORTS AND WE WOULD READ THEM
4 ALL TO SEE IF THERE WAS ANYBODY THERE WHO FELL IN OUR UNIVERSE
3 CRITERIA, WHO SATISFIED OUR CRITERIA FOR INCLUSION. AND IF THEY
p é DID, WE WOULD PICK THEM UP AND PUT THEM IN. AND THEY WERE
7 LARGELY DEATH SENTENCE CASES. THAT’S HOW WE FOUND THEM.
a I THINK IN THIS STUDY THERE WERE ONLY THREE OR FOUR.
9 I CAN‘T REMEMBER THE EXACT NUMBER.
10 THERE WERE A LOT MORE OF THEM IN THE NEXT STUDY THAT
11 WERE COMING TO. THERE WERE 28 OF THEM IN TOTO IN THE NEXT STUDY
12 THAT WERE COMING TO.
( 13 THE COURT: I HAD THOUGHT THAT THE NUMBER 394
14 INDICATED WITHIN THE PERIOD ALL OF THE DEFENDANTS WHO WERE
15 CONVICTED AND SENTENCED FOR MURDER.
1&6 THE WITNESS: YES, WHOSE DATE OF SENTENCE. DATE OF
17 ARREST OR DATE SENTENCE BEGAN WAS BEFORE JUNE 30. “78. THRT’S
18 RIGHT. ALL THAT WE KNOW OF.
% 19 THE COURT: WHAT PROCEDURE WAS EMPLOYED TO IDENTIFY
20 THOSE THAT HAD APPEALS PENDING, AND THUS NOT REPORTED, WHO WERE
21 IN LOCAL JAILS?
22 | THE WITNESS: WELL, THE SEARCH OF THE, THE SEARCH FOR
23 THIS POPULATION OF PEOPLE. YOUR HONOR, WENT ON FOR A NUMBER OF
24 YEARS. WE DIDNT DO IT JUST AT ONE TIME. WE PICKED UP THESE
25 PEOPLE WHO WENT UP ON APPEAL SUBSTANTIALLY LATER. IN 1980.
~
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BALDUS ~ DIRECT
THE COURTT OH.
THE WITNESS: BY THAT TIME. YOU SEE. YOUR HONOR,
EVERYBODY HAD BEEN PICKED UP. THIS IS AN ONGOING PROCESS WHERE
WE“RE CONSTANTLY READING THE NEW REPORTS COMING DOWN FROM THE
GEORGIA SUPREME COURT. AND SCREENING FOR NEW CASES IN THAT WAY..
BY THAT TIME, EVERYBODY WOULD HAVE GONE THROUGH THE PROCESS.
THE COURT: ALL RIOHT. THAT WOULD SEEM TO BE A
REASONABLE ASSUMPTION. GO AHEAD. I‘LL ADMIT 25.
MR. BOGER: THANK YOU, YOUR HONOR.
YOU MAY HAVE NOTED WE HAD AN ENTRY AT THE END OF OUR
FIRST EXHIBIT BOOK INDICATING THAT THAT DOCUMENT WOULD BE
SUBMITTED SEPARATELY. THAT VOLUME HAS THEREFORE NOW BEEN
COMPLETED.
WE HAVE A SECOND VOLUME. AND I“VE GIVEN A COPY TO THE
STATE! LET ME GIVE ONE TO THE COURT REPORTER, AND ONE TO THE
COURT REPORTER FOR YOUR HONOR.
I BELIEVE THE WITNESS HAS VOLUME 2, IS THAT CORRECT?
THE WITNESS: CORRECT.
BY MR. BOGER:
@. PROFESSOR BALDUS, YOU/VE IDENTIFIED DB-25 AS THE LIST OF
CASES THAT YOU RECEIVED FROM THE GEORGIA DEPARTMENT OF OFFENDER
REHABILITATION. |
IM GOING TO ASK YOU TO IDENTIFY A DOCUMENT THAT ILL
HAVE THE COURT REPORTER MARK FOR IDENTIFICATION AS DB-26.
CAN YOU IDENTIFY THAT DOCUMENT, PROFESSOR BALDUS?
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BALDUS - DIRECT
A. YES. THIS DOCUMENT IS LABELED "PROCEDURAL REFORM STUDY!
CASE LIST." AND IT REPRESENTS A LISTING OF THE 594 OFFENDERS
WHO ARE EMBRACED IN THE PROCEDURAL REFORM STUDY.
IT ALSO INDICATES WHAT THE SENTENCE FOR EACH OFFENDER
1S. IT’S A LISTING BY CASE NUMBER THAT WE USED FOR
ADMINISTRATIVE PURPOSES IN OUR RESEARCH.
THE COURT: THAT IS THE LIST OF YOUR UNIVERSE?
THE WITNESS: VES, YOUR HONOR.
THE COURT: WHICH 25 INTO. BUT 26 IS LARGER THAN 2%,
LARGER GROUP THAN 25.
THE WITNESS: OH, YES. WE WERE COLLECTING
INFORMATION, PRE-FURMAN CASES AS WELL, BUT THIS 25 INCLUDES A
BIG PORTION OF CASES THAT WE HAD NO INTEREST IN. BECAUSE THEY
WERE EITHER PRE-FURMAN OR THEY WERE PLEA BARGAINS, OR THEY
HADN-T GONE TO TRIAL. LOT OF PEOPLE IN THERE THAT WERE OUTSIDE
THE FRAME OF OUR FOCUS.
THIS 394 OFFENDERS IS WHAT WE SETTLED ON AS THE GROUP
OF INTEREST TO US.
THE COURT: ALL RIGHT, SIR.
BY MR. BOGERS
@. SO ANYONE IN EXAMINING THE UNIVERSE OF THE PROCEDURAL REFORM
STUDY COULD LOOK TO DB-26 AND THAT IS THE UNIVERSE, IS THAT
CORRECT?
A. YES.
MR. BOGERt YOUR HONOR. I WOULD MOVE ITS ADMISSION
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BALDUS - DIRECT
INTO EVIDENCE.
MS. WESTMORELAND: NO OBJECTION, YOUR HONOR.
THE COURT: IT WILL BE ADMITTED.
MR. BOGER: YOUR HONOR. IF I MIGHT, THAT’S ALSO AN
ORIGINAL, I INTEND TO SUBSTITUTE IT WITH A COPY WITH THE COURT’S
INDULGENCE. I SHOWED IT TO THE STATE.
THE COURT: I HAVE NO PROBLEM.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
@. PROFESSOR BALDUS, WE NOW HAVE JURISDICTION. WE HAVE FUNDS,
WE HAVE A KIND OF STUDY, WE HAVE SOURCES OF DATA. WE HAVE CASES ON
WHICH WE“RE GOING TO COLLECT DATA.
HOW DID YOU ACTUALLY GO ABOUT THE DATA COLLECTION
PROCESS?
A. WELL, THE FIRST THING WE HAD TO DO WAS TO DESION A
QUESTIONNAIRE TO PUT THE DATA INTO, AND THE CONSTRUCTION OF THE
QUESTIONNAIRE WAS A TWO-STEP PROCESS.
WE STARTED IN 1978 WITH THE OBJECTIVE OF DEVELOPING A
COMPREHENSIVE QUESTIONNAIRE THAT WOULD COVER ALL CONCEIVABLE
FACTORS ON WHICH WE FELT WE MIGHT BE ABLE TO OBTAIN DATA. AND
THIS WORK WAS DONE BY A GRADUATE STUDENT. FREDERICK KYLE. AND I,
WE CONSULTED ALL OF THE PREVIOUS STUDIES THAT HAD BEEN DONE IN
THIS AREA, AND OBTAINED COPIES OF THOSE QUESTIONNAIRES. AND PUT
TOGETHER A VERY SUBSTANTIAL QUESTIONNAIRE WHICH WE REFER TO AS
THE SUPREME COURT QUESTIONNAIRE.
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BALDUS — DIRECT
WE CALL IT THAT BECAUSE THE FIRST STAGE OF OUR DATA
COLLECTION PROCESS INVOLVED THE COLLECTION OF INFORMATION FROM
THE FILES OF THE GEORGIA SUPREME COURT.
@. DOES. LET ME CLARIFY IT FOR THE RECORD, DOES THE
QUESTIONNAIRE THAT YOU DEVELOPED WHICH YOUVE CALLED THE SUPREME
COURT QUESTIONNAIRE, IS IT INTENDED TO SERVE THE PURPOSES, ALL
OF THE PURPOSES OF THE PROCEDURAL REFORM STUDY THAT YOUVE
TESTIFIED TO EARLIER? NOT SIMPLY THE ONES THAT HAD TO DO WITH
RACIAL DISCRIMINATION?
A. YES: IT WAS.
@. ALL RIGHT?
A. THE QUESTIONNAIRE PROVIDED THE INFORMATION THAT WOULD ALLOW
US TO ANALYZE MATTERS CONCERNING PROPORTIONALITY REVIEW AS WELL
AS THE ISSUES OF EVEN-HANDEDNESS. AND DIFFERENTIAL TREATMENT ON
RACIAL LINES.
8. WHAT WAS YOUR OBJECTIVE IN THE INCLUSION OF FACTORS OR ITEMS
THAT WENT INTO THE QUESTIONNAIRE? IN OTHER WORDS, WHAT WERE YOU
TRYING TO DESIONS WHAT GOT INCLUDED, WHAT DIDN‘T, AND WHY?
A. WE, ON THE BASIS OF OUR SURVEY OF PRIOR QUESTIONNAIRES, OUR
SURVEY OF THE LITERATURE, OUR SURVEY OF ALL THE JUDICIAL
OPINIONS. STATE APPELLATE COURTS THAT HAD EXAMINED ISSUES OF
DEATH WORTHINESS. WE SOUGHT TO IDENTIFY ANY VARIABLE THAT WE
BELIEVED WOULD BEAR ON MATTER OF THE DEATH WORTHINESS OF AN
INDIVIDUAL OFFENDERS‘ CASE, BECAUSE OUR GOAL WAS TO CREATE A
DATA SET THAT WOULD ALLOW US TO CONTROL FOR THOSE BACKGROUND
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195
BALDUS ~ DIRECT
FACTORS, AND THOSE BACKGROUND FACTORS ARE THE CHARACTERISTICS OF
THE CASE. LEGITIMATE CHARACTERISTICS OF THE CASE, THAT AFFECT
THE DEATH WORTHINESS OF ANY ONE INDIVIDUAL CASE. AND THOSE ARE
FACTORS, RELATING TO THE NATURE OF THE CRIME, THE PERSONAL
CHARACTERISTICS OF THE OFFENDER, CHARACTERISTICS OF THE VICTIM.
AND WE DID EXTENSIVE. WE DID AN EXTENSIVE RESEARCH
EFFORT TO TRY AND UNCOVER ALL FOSSIBLE VARIABLES. CASE
CHARACTERISTICS THAT WE THOUGHT WE SHOULD COLLECT INFORMATION
ON.
@. DID YOU CONSULT WITH ANYONE BEYOND FREDERICK KYLE IN
CREATING THIS QUESTIONNAIRE?
A. OH. CERTAINLY. WE, FRED KYLE WAS THE PRINCIPAL DRAFTSMAN OF
THE QUESTIONNAIRE UNDER MY SUPERVISION, AND HE WOULD CREATE A
DRAFT AND I WOULD WORK ON IT, WE WOULD REVISE IT. AND THEN WE
WOULD SHIP IT TO GEORGE WOODWORTH WHO WOULD REACT TO IT, WE
WOULD SENT IT TO CHARLES PULASKI, WE CIRCULATED IT AMONG
COLLEAGUES, ANYONE WHO WAS INTERESTED ENCUGH TO READ IT, WE
WOULD SUBMIT IT TO.
@. YOU MENTIONED COLLEAGUES. DID YOU SUBMIT IT TO OTHER
PROFESSIONALS IN THE FIELD? |
A. YES. WE SUBMITTED IT TO A NUMBER OF OTHER MEMBERS OF OUR
FACULTY WHO WERE INVOLVED IN THE CRIMINAL JUSTICE AREA.
@. DID THE QUESTIONNAIRE GO THROUGH MORE THAN ONE DRAFT BEFORE
A FINAL FORM WAS SET UP?
A. IT WENT THROUGH MANY MANY DRAFTS.
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BALDUS = DIRECT
@. I WANTED TO DEFINE A TERM FOR THE RECORD SO IT’S CLEAR WHEN
WE USE IT IN THE FUTURE.
YOU MENTIONED VARIABLES OF INTEREST THERE. WHAT DO
YOU MEAN BY THE TERM "VARIABLE?"
A. YES. A VARIABLE IS A QUESTION THAT SEEKS TO ELICIT
INFORMATION ABOUT A CHARACTERISTIC OF A CASE. FOR EXAMPLE,
WHETHER THERE WAS A CONTEMPORANEOUS FELONY INVOLVED IN THE CASE.
ADDRESSES THE QUESTION OF WHETHER OR NOT THAT CASE CHARACTERSTIC
EXISTED.
THE INFORMATION THAT CARRIES THAT INFORMATION FOR THE
VARIABLE. THAT CARRIES THAT INFORMATION IS ONE OF THE
CHARACTERISTICS OF THE QUESTIONNAIRE.
@. ALL RIGHT, LET ME ASK YOU IF YOU’LL TURN TO DB-27 MARKED FOR
IDENTIFICATION. I-LL ASK YOU TO IDENTIFY IT IF YOU CAN?
A. YES. DB-27 1S A COPY OF THE SUPREME COURT QUESTIONNAIRE AS
IT WAS FILLED ouT IN ONE ACTUAL CASE.
@. WHERE DID YOU OBTAIN THIS COPY?
A. THIS WAS OBTAINED FROM OUR FILE. WE HAVE SEVERAL HUNDRED OF
THESE. THIS WAS PULLED OUT OF THE FILE FOR PURPOSES OF
DUPLICATION.
@. CAN YOU GO THROUGH NOT IN ANY DETAIL AT ALL, BUT BRIEFLY
IDENTIFYING THE BASIC STRUCTURE OF THIS QUESTIONNAIRE?
A. WELL, THE FIRST PART OF THE QUESTIONNAIRE IS LABELED ROMAN
NUMERAL ONE, DEFENDANT. VYOU-“LL NOTICE IT INDICATES ON THE FIRST
PAGE HERE, DEPARTMENT OF CORRECTIONS DATA.
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197
BALDUS ~ DIRECT
THIS IS A PRESENTATION OF THE DATA THAT WERE PROVIDED
TO US BY THE DEPARTMENT OF CORRECTIONS WITH RESPECT TO THIS
| PARTICULAR OFFENDER.
THOSE ARE THE PAGES, FIRST TWENTY-FIVE OR SO PAGES,
THIS INSTRUMENT THAT LOOKED LIKE THEY CAME OFF A WORD PROCESSOR
COMPUTER. IN FACT THEY DID. THEY WERE PRINTED OFF THE TAPE
THAT THE DEPARTMENT OF CORRECTIONS PROVIDED FOR US.
THE SECOND PART OF THE DOCUMENT WHICH BEGINS UNDER
ROMAN NUMBERAL 3, IT’S ACTUALLY PAGE 1S OF THE QUESTIONNAIRE,
PROVIDES INFORMATION ON THE CHARACTERISTICS OF THE VICTIM.
THE RACE. AGE, SEX OF THE VICTIM, RESIDENCE. THEN
OVER ON --
THE COURT: I-M NOT SURE THAT I“VE FOUND THAT PAGE.
WHERE ARE THE PAGE NUMBERS?
MR. BOGER: YOUR HONOR, THEY/RE NOT NUMBERED UNTIL YOU
GET OVER TO ABOUT 14. 14 BEGINS THE NUMBERED PAGES. AND I THINK
IF YOU‘LL FLIP OVER IN THE MIDDLE OF THE QUESTIONNAIRE. YOU’LL
SEE THE PAGINATION AND MOVE BACKWARDS.
THE COURT: OKAY.
THE WITNESS: THOSE GUESTIONS CONCERNING THE
CHARACTERISTICS OF THE VICTIM RUN FROM PAGES 15 OVER TO 21, AND
WE BEGIN TO PICK UP A SUBSTANTIAL SET OF DETAILED QUESTIONS
CONCERNING THE METHOD OF KILLING.
THE COURT: PAGE?
THE WITNESS: THATS ON PAGE 21, YOUR HONOR. CAUSE OF
198
BALDUS ~ DIRECT
1 DEATH.
2 AND THEY KEEP -— THEN OVER ON PAGE 37. THERE IS A
3 DISCUSSION OF THE NUMBER, TOTAL NUMBER OF VICTIMS KILLED.
4 THEN ON 38. WE HAVE SOME INFORMATION ABOUT
3 CO-PERPETRATORS, DISPOSITION OF THEIR CASES.
Ww é OVER ON PAGE 45, WE HAVE INFORMATION, MORE INFORMATION
7 CONCERNING. CORRECT THAT, NOT MORE INFORMATION, IT STARTS TO
8 FOCUS HERE ON THE PROCEDURAL ASPECTS OF THE CASE, THE STATUS OF
¥ DEFENSE COUNSEL, PLEADING BY THE DEFENDANT.
10 THEN OVER ON PAGE 958. YOU BEGIN TO PICK UP AGAIN MORE
11 DETAILED INFORMATION ABOUT VARIOUS CHARACTERISTICS OF THE
12 OFFENSE. AND THOSE QUESTIONS CONTINUE UP THROUGH 664A.
13 THEN. AGAIN, WE PICK UP INFORMATION ABOUT THE NUMBER
14 OF OFFENDERS. PARDON ME. THE NUMBER OF VICTIMS KILLED IN THE
15 ROLE OF CO-PERPETRATORS IN THOSE KILLINGS AND INJURIES OF OTHER
16 PEOPLE.
17 ON PAGE 6% THROUGH 72 WE HAVE INFORMATION CONCERNING
18 CONTEMPORANEOUS OFFENSES. WHETHER OR NOT THOSE OFFENSES WERE
Pa
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RECORDS AND DETERMINE WHETHER OR NOT THERE WAS EVIDENCE THAT
[ —
THESE OFFENSES HAD OCCURRED, REGARDLESS OF THE ACTUAL
22 DISPOSITION OF THE CASE. WITH RESPECT TO THOSE OFFENSES.
23 STARTING ON PAGE 73 WE HAVE A SERIES OF QUESTIONS
24 INVOLVING THE VICTIM'S ROLE IN THE CRIME.
25 AND 7%A. ABOUT THE DEFENDANT”S BEHAVIOR AFTER THE
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HOMICIDE.
77, 78 HAVE INFORMATION CONCERNING TYPES OF EVIDENCE
INTRODUCED BY THE STATE AT THE TRIAL.
ROLE OF CO-PERPETRATORS IN THE PROCEEDING IS COVERED
IN 78 AND 79.
TYPES OF EVIDENCE, OF EVIDENCE THAT WERE SUBMITTED AT
TRIAL, 80 AND 81.
THE COURT: WAIT JUST A SECOND.
THE WITNESS: AND THE CLAIMS OF DEFENSE AT TRIAL FROM
83 OVER TO 84A.
THEN 86 WE PICK UP THE KINDS OF EVIDENCE SUBMITTED BY
THE DEFENDANT.
THEN WE HAVE A SERIES OF QUESTIONS, 87 HAVING TO DO
WITH THE DELIBERATIONS OF THE JURY. WE FOUND OUT WE WERE UNABLE
TO GET INFORMATION ON THAT ULTIMATELY AND NOT USE THOSE
QUESTIONS.
WE HAVE A SECTION 89 THROUGH 91 DEALING WITH
CONVICTION AT THE GUILT TRIAL.
AND 92 THROUGH -- ACTUALLY THROUGH 113A, WE HAVE
INFORMATION CONCERNING A PENALTY TRIAL. IN CASES THAT WERE
ADVANCED TO A PENALTY TRIAL.
AND FINALLY IN PAGES 114, THE. HAVE INFORMATION
DEALING WITH THE DISPOSITION OF CASES WITH RESPECT TO THE
VARIOUS COUNTS CHARGED.
FINALLY. PAGE 119. WE HAVE A SECTION ON, CALLED THE
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BALDUS - DIRECT
APPENDIX HERE, LATER CAME TO BE KNOWN AS THE SUMMARY, PAGE 119
WHERE THE CODERS WERE ASKED TO PROVIDE A NARRATIVE SUMMARY OF
WHAT OCCURRED IN THE CASE SO THAT YOU COULD LOOK AT A PIECE OF
PAPER THAT WOULD GIVE YOU A QUICK ABSTRACT OF WHAT HAD OCCURRED
IN THE CASE. YOU CAN TELL THAT, FROM HAVING PERUSED THIS
QUESTIONNAIRE, THAT IT‘S VERY HARD TO GET A SENSE OF WHAT THE
CASE IS ABOUT BY EXAMINING A QUESTIONNAIRE THAT’S BEEN CODED AND
ITS VERY IMPORTANT TO HAVE AN ABSTRACT OF THE CASE TO GET AN
IMMEDIATE SENSE OF WHAT IT/S ABOUT.
BY MR. BOGER:
@. HOW MANY CASES IN THE PROCEDURAL REFORM STUDY, PROFESSOR
BALDUS., WERE CODED USING THE SUPREME COURT QUESTIONNAIRE?
A. 330.
@. I’M SORRY. USING THE SUPREME COURT QUESTIONNAIRE,
EVENTUALLY?
A. THAT EXCLUSIVELY?
@. YES?
A. 243 WAS THE FIGURE.
@. LET ME ACTUALLY --
MR. BOGER: BEFORE WE GET INTO THAT QUESTION, YOUR
HONCR., I MOVE DB-27-S ADMISSION INTO EVIDENCE AT THIS TIME.
MS. WESTMORELAND: YOUR HONOR, I HAVE NO OBJECTION.
WITH THE LIMITATION THAT THIS IS AN EXAMPLE OF THE SUPREME COURT
QUESTIONNAIRE. 1 WOULD NOT NECESSARILY AGREE TO THE VALIDITY OF
THE CONTENTS AS TO THIS PERSON, BUT AS AN EXAMPLE OF THE SUPREME
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COURT QUESTIONNAIRE, I HAVE NO OBJECTION.
THE COURT: THAT'S THE PURPOSE FOR WHICH IT IS BEING
OFFERED, ISN‘T IT?
MR. BOGER: THAT’S CORRECT, ALTHOUGH I NOTE WE‘VE
GOTTEN NO OBJECTION FROM THE STATE PREVIOUSLY ABOUT THE VALIDITY
OF THIS PARTICULAR EXAMPLE.
THE COURT: ALL RIGHT. IT WILL BE ADMITTED.
MR. BOGER: THANK YOU, YOUR HONOR.
BY MR. BOGER:
Q. PROFESSOR BALDUS. LET ME MOVE TO DB-28, AND SPARE YOUR
EYESIGHT A LITTLE.
IF YOU COULD IDENTIFY THE TWO FIGURES IN DB~28.
A. I’M SORRY, THE QUESTION WAS?
QR. PLEASE IDENTIFY THESE FIGURES. IF YOU WOULD?
A. OH. DB-28 IS LABELED "SOURCES OF DATA."
THIS FIGURE PRESENTS A, THE SOURCES OF DATA THAT WERE
USED IN THE TWO STUDIES. AND —--
@. WHEN YOU ARE TALKING ABOUT THE TWO STUDIES, =--
A. THE TWO STUDIES BEING THE PROCEDURAL REFORM STUDY AND THE
CHARGING AND SENTENCING STUDY.
AND THE SECOND PAGE OF THIS EXHIBIT IS CALLED THE
PROCEDURAL. REFORM STUDY. IT INDICATES PHASES IN THE COLLECTION
OF THE DATA FOR THIS STUDY AS WELL AS THE TYPES OF
QUESTIONNAIRES IN WHICH THE DATA WERE ORIGINALLY CODED.
@. LET’S MOVE BACK TO THE FIRST PAGE, PROFESSOR BALDUS, AND ASK
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YOU WHAT THIS SCHEMATIC DRAWING IS MEANT TO INDICATE. THEN?
A. IN THE MIDDLE OF THE PAGE ON THE RIGHT SIDE OF DB-28, WE
HAVE SPECIFIED THE TWO TYPES OF QUESTIONNAIRES THAT WE USED IN
COLLECTING DATA IN THE PROCEDURAL REFORM STUDY.
THE FIRST IS THE SUPREME COURT QUESTIONNAIRE. WHICH
WE-VE JUST GONE THROUGH.
THE SECOND IS THE PROCEDURAL REFORM STUDY
QUESTIONNAIRE: WHICH IS AN ABBREVIATED VERSION OF THE ORIGINAL
SUPREME COURT QUESTIONNAIRE.
@. LET ME DEFER FOR A MOMENT THE QUESTION ABOUT THE SWITCH FROM
ONE QUESTIONNAIRE TO ANOTHER WHICH WE WILL COVER IN SOME DETAIL.
AND I SIMPLY ASK YOU NOW WITH RESPECT TO THE SUPREME COURT
QUESTIONNAIRE PART OF DB-28. WHAT THE OTHER BLOCKS REPRESENT?
A. YES. AT THE TOP RIGHT, THE BOX SUGGESTS. INDICATES GEORGIA
SUPREME COURT, WHICH WAS THE PRINCIPAL SOURCE OF THE DATA USED
FOR THE PREPARATION OF THE SUPREME COURT QUESTIONNAIRES.
THERE, WE OBTAINED INFORMATION BY EXAMINING BRIEFS. AS
1 INDICATED EARLIER, THE BRIEFS OF THE A.G.. THE DEFENDANT, AND
THE PROSECUTOR.
WE ALSO, OF NECESSITY. REQUIRED IT BECAUSE OF THE GAPS
IN THOSE BRIEFS, WE WOULD CONSULT THE TRANSCRIPTS.
ALSO WE WOULD EXAMINE THE OPINIONS OF THE GEORGIA
SUPREME COURT IN EACH CASE.
FURTHERMORE. WE OBTAINED INFORMATION. ADDITIONAL
INFORMATION FROM THE GEORGIA SUPREME COURT.
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THE GEORGIA SUPREME COURT HAS A SPECIAL ASSISTANT FOR
THE CONDUCT OF PROPORTIONALITY REVIEW, AND THE INCUMBENT IN THAT
POSITION AT THE TIME, COVERED BY THIS STUDY WAS ONE DENNIS YORK,
WHO PREPARED SUMMARIES ON OVER SEVEN HUNDRED MURDER CASES.
IN ADDITION, HE PREPARED BRIEF QUESTIONNAIRES THAT
FOLLOWED THE MODEL OF THE QUESTIONNAIRES THAT TRIAL JUDGES ARE
REQUIRED TO COMPLETE IN DEATH SENTENCE CASES.
@. DID DENNIS YORK COMPLETE A QUESTIONNAIRE IN A DEATH SENTENCE
CASE?
A. NO, HE DID NOT. I DON’T BELIEVE HE DID. HE WOULD USE HIS
RECORDS. HE WOULD USE THE TRIAL COURT‘S REPORT.
@. SO IN OTHER WORDS, HE COMPLETED A REPORT IN WHAT
SUBCATEGORIES OF CASES?
A. IN LIFE SENTENCE CASES. THAT IS, IT WAS HIS OBJECTIVE TO
HAVE A REPORT FOR EVERY CASE SO THAT HE COULD MAKE COMPARISONS
BETWEEN THE LIFE SENTENCE AND DEATH SENTENCE CASES ON THE SAME
DIMENSIONS. THATS WHY HE TOOK IT UPON HIMSELF TO COMPLETE A
QUESTIONNAIRE FOR ALL CASES THAT HE CONSIDERED.
@. SO IF A CASE WAS IN THE SUPREME COURT. AND IT WAS A DEATH
CASE, WHAT KIND OF QUESTIONNAIRE WOULD ONE FIND?
A. YOU WOULD FIND THE TRIAL JUDGE’S REPORT IF IT WERE A DEATH
SENTENCE CASE.
G. IF IT WERE A LIFE SENTENCE CASE?
A. IF WE HAD AVAILABLE A QUESTIONNAIRE ON THAT CASE IT WOULD
HAVE BEEN DENNIS YORK’S GUESTIONNAIRE.
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@. DID YOUR TESTIMONY INDICATE THERE WERE SOME LIFE SENTENCE
CASES IN WHICH DENNIS YORK DID DID NOT COMPLETE A REPORT?
A. YES, THERE WERE. WE WERE NOT ABLE TO OBTAIN DENNIS YORK
QUESTIONNAIRES OR DENNIS YORK ABSTRACTS ON ALL CASES.
QR. ALL RIGHT. YOUR TESTIMONY THUS FAR IS WITH RESPECT TO THE
GEORGIA SUPREME COURT. |
AND YOU HAVE IDENTIFIED SOME OF THE DATA SOURCES
WITHIN THE GEORGIA SUPREME COURT WHICH THIS SCHEMATIC INDICATES
ARE RELATED TO THE SUPREME COURT QUESTIONNAIRE. IN WHAT WAY?
LET ME REPHRASE THE QUESTION.
WERE THESE DATA USED IN COMPLETING THE SUPREME COURT
OF CEORGIA‘S, OR THE SUPREME COURT QUESTIONNAIRE FOR YOUR
PROCEDURAL REFORM STUDY?
A. YES.
@. WERE THERE OTHER DATA SOURCES THAT WERE USED IN COMPLETING
THE QUESTIONNAIRE?
A. YES. THE ONE IMPORTANT SOURCE WAS THE INFORMATION PROVIDED
BY THE DEPARTMENT OF OFFENDER REHABILITATION. THAT’S INDICATED
BY THE BLOCK IN THE MIDDLE ON THE LEFT OF THE PACE. AND THAT’S
THE MAGNETIC TAPE THAT I REFERRED TO EARLIER. AND SHOWED IN AN
EARLIER EXHIBIT, THE FORMAT OF THAT TAPE.
®. I NOTICE YOU HAVE MAGNETIC TAPE 1, AND MAGNETIC TAPE 2.
WHAT DOES THAT REFER TQ, PROFESSOR BALDUS?
A. MAGNETIC TAPE 2 SIMPLY REFERS TO THE UPDATE, AT LEAST FOR
THE PURPOSES OF THE SUPREME COURT QUESTIONNAIRE, THAT WOULD
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REFER TO THE UPDATE OF THE MISSING VARIABLES. AS THOUGH WE HAD
WIPED OFF THE FILE INADVERTENTLY.
@. THAT REFLECTS THAT LETTER WE TALKED ABOUT EARLIER?
A. YES.
G. IN DB-» I THINK. -247
A. THAT’S RIGHT.
R. ARE THERE ANY ADDITIONAL SOURCES OF INFORMATION -- WELL. LET
ME ASK THE QUESTION, WAS THE DEPARTMENT OF OFFENDER
REHABILITATION INFORMATION USED TO COMPLETE THE SUPREME COURT
QUESTIONNAIRE?
A. YES. IT WAS.
@. ALL RIGHT. ANY ADDITIONAL SOURCES OF INFORMATION THAT YOU
USED TO COMPLETE THAT QUESTIONNAIRE?
A. YES. WE FOUND THAT IN MANY CASES, THE RECORDS OF THE
GEORGIA SUPREME COURT DID NOT CONTAIN INFORMATION ON THE RACE OF
THE VICTIM.
AND AS A CONSEQUENCE, IT WAS NECESSARY FOR US TO GO TO
THE BUREAU OF VITAL STATISTICS TO OBTAIN THAT INFORMATION. AND
WE OBTAINED THAT INFORMATION IN TWO WAYS.
FIRST, WE PURCHASED DEATH CERTIFICATES ON THE CASES.
AND THEN LATER WE LEARNED ABOUT THEIR SUPPLEMENTAL
HOMICIDE TAPE, OR HOMICIDE TAPE IT’S CALLED, I BELIEVE, WHICH
LISTS ON A COMPUTER TAPE THE CASE CHARACTERISTICS OF ALL VICTIMS
OF HOMICIDE IN THE STATE OF GEORGIA.
SO THAT WAS ANOTHER PRINCIPAL SOURCE OF INFORMATION.
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WHEN WE WERE UNABLE TO FIND THE RACE OF THE VICTIM INFORMATION
FROM THE OFFICIAL RECORDS OF THE GEORGIA SUPREME COURT.
Q. WERE THERE ANY ADDITIONAL SOURCES OF INFORMATION FOR THE
SUPREME COURT QUESTIONNAIRE?
A. YES, ANOTHER IMPORTANT QUESTION THAT WE WERE UNABLE TO
OBTAIN INFORMATION ON FREQUENTLY FROM THE SUPREME COURT RECORDS
| WAS THE STATUS OF DEFENSE COUNSEL, AND -—
@. WHAT DO YOU MEAN BY THE STATUS OF DEFENSE COUNSEL?
A. WHETHER OR NOT THE COUNSEL WAS APPOINTED OR RETAINED
BASICALLY. AND THAT INFORMATION WAS SOMETIMES INDICATED IN THE
COURT RECORDS, BUT SOMETIMES IT WAS NOT. AND IN THE CASES WHERE
IT WAS NOT, WE WOULD OBTAIN THE NAME OF DEFENSE COUNSEL FROM THE
RECORDS AND CORRESPOND WITH THE DEFENSE ATTORNEY. SPECIFICALLY
WE WOULD SEND A QUESTIONNAIRE TO THE DEFENSE ATTORNEY REQUESTING
THAT THEY TELL US WHAT THEIR STATUS WAS IN THAT PARTICULAR CASE.
@. ANY ADDITIONAL SOURCES OF DATA FOR THE COMPLETION —-- EXCUSE
ME — WERE BOTH THE BUREAU OF VITAL STATISTICS AND THE LETTERS
FROM COUNSEL USED IN COMPLETING THE THE SUPREME COURT
QUESTIONNAIRE?
A. YES, THEY WERE.
Q. AND WERE THERE ANY ADDITIONAL SOURCES?
A. NO.
@. I NOTE A BOX HERE THAT SAYS DEPARTMENT OF PARDONS AND
PAROLES TO WHICH YOU’VE NOT REFERRED WITH RESPECT TO THE SUPREME
COURT. WAS IT A SOURCE OF DATA?
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BALDUS - DIRECT
A. NO.
@. ALL RIGHT. LET’S TURN TO THE SECOND PAGE OF DB-28. FOR
IDENTIFICATION, PROFESSOR BALDUS, AND IF YOU COULD EXPLAIN,
PLEASE, WHAT THIS SCHEMATIC ILLUSTRATES, -—
MR. BOGER: ~~ AND LET ME NOTE FOR THE COURT THERE’S A
LARGER VERSION OF IT HERE ON THE CHALK BOARD WHICH WE HAVE SET
UP. IT’S NOT BEEN MARKED BY THE COURT REPORTER. PERHAPS 1
SHOULD DO THAT NOW. IF YOUR HONOR PLEASE. IF WE COULD MARK THAT
AS DB-28A.
THE COURT: ALL RIGHT.
BY MR. BOGER:
@. ALL RIGHT, PROFESSOR BALDUS. RETURNING TO DB~28 IN YOUR
EVIDENCE BOOK, CAN YOU TELL ME WHAT THAT SCHEMATIC REPRESENTS?
A. YES, THIS PAGE IS LABELLED PROCEDURAL REFORM STUDY, AND IT
REPRESENTS THE STAGES IN WHICH THE DATA WERE COLLECTED FOR THE
PROCEDURAL REFORM STUDY.
IT INDICATES THE INSTRUMENTS THAT WERE USED TO COLLECT
THE DATA, AND THE PERSONNEL THAT COLLECTED THE DATA FROM RECORDS
IN GEORGIA.
NOW THE FIRST STAGE OF THE COLLECTION PROCESS IS
REPRESENTED BY THE PORTION OF THE PIE HERE. IDENTIFIED AS "A"
EQUALS 243. THESE WERE THE CASES ON WHICH DATA WERE COLLECTED
DURING THE SUMMER OF 1979.
| THE PERSON WHO WAS IN CHARGE OF THAT DATA COLLECTION
EFFORT WAS FREDERICK KYLE WHO AT THAT TIME HAD A LAW DEGREE FROM
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THE UNIVERSITY OF IOWA, AS WELL AS A MASTERS DEGREE IN POLITICAL
SCIENCE. HE HAD BEEN IN GEORGIA THE YEAR BEFORE AND IDENTIFIED
THE DATA SOURCES. HE CAME HERE DURING THE SUMMER OF “79 TO
COLLECT INFORMATION ON AS MANY CASES AS HE COULD. OUR GOAL WAS
a7 -— PARDON ME —-- OUR GOAL WAS 330 CASES, BUT WE REALIZED WE
MIGHT NOT BE ABLE TO COLLECT THE INFORMATION ON THAT MANY CASES
IN ONE SUMMER.
WHEN HE GOT HERE. HE HIRED A SECOND-YEAR LAW STUDENT
AT EMORY UNIVERSITY BY THE NAME OF FRED CHAIKEN TO HELP HIM, AND
LATER IN THE SUMMER, THEY HIRED A YOUNG WOMAN BY THE NAME OF
VALERIE ATKINS, WHO ALSO ASSISTED THEM ON THE PROJECT.
AT THE COMMENCEMENT OF THIS ENTERPRISE. THEY
ATTEMPTED. SPECIFICALLY FRED KYLE ATTEMPTED TO CODE THE
QUESTIONNAIRE, THAT IS, TO COMPLETE EACH ENTRY IN THE SUPREME
COURT QUESTIONNAIRE.
THEY FOUND. HOWEVER. THAT THE QUESTIONNAIRE HAD SUCH
DETAIL AND WAS SO MASSIVE THAT IT WAS IMPOSSIBLE TO CODE IT
WITHIN LESS THAN A DAY OR SO FOR EACH CASE. THEY REALIZED IF
THEY ACTUALLY ENTERED THE INFORMATION INTO THE QUESTIONNAIRE
THAT THEY WOULD BE LUCKY IF THEY WOULD BE ABLE TO CODE EIGHTY OR
NINETY CASES THROUGHOUT THE COURSE OF THE SUMMER.
SO FACED WITH THIS PROBLEM, WE DECIDED THE MORE
EFFICIENT --
Q. EXCUSE ME. BEFORE YOU GO INTO THAT. DID THEY COMMUNICATE
THAT CONCERN TO YOU OR PROFESSOR WOODWORTH?
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A. 1 HEARD ABOUT IT AFTER THE FIRST QUESTIONNAIRE WAS CODED.
AND WE TRIED TO DO IT AGAIN TO SEE IF UPON REPETITION THE PROCESS
| COULD BE SPEEDED UP SUBSTANTIALLY. BUT STILL IT LOOKED HOPELESS
IN TERMS OF BEING ABLE TO COME ANYWHERE NEAR QUR GOAL IF THE
QUESTIONNAIRES WERE ACTUALLY CODED.
SQ, RELUCTANTLY WE DECIDED ON AN ALTERNATIVE.
RELUCTANTLY BECAUSE IT MEANT THAT THE DATA COLLECTION AND DATA
ENTRY WOULD TAKE LONGER, BUT WE REALIZED THIS WAS THE ONLY WAY
IT COULD BE DONE AND DONE PROPERLY.
SO THE ALTERNATIVE WAS FOR FRED KYLE AND HIS
ASSISTANT. FRED CHAIKEN, TO CONSULT THE RECORDS IN THE SUPREME
COURT AND TO PREPARE A DETAILED ABSTRACT OF EACH CASE. ACTUALLY
THE INFORMATION WAS DICTATED FROM THE RECORDS AND NOTES THAT
THEY PREPARED, AND THOSE TAPES WERE THEN SENT BACK TO ME AT THE
UNIVERSITY OF IOWA AND WE HAD THEM TRANSCRIBED. AND THEN LATER
SENT TO FRED KYLE WHO WENT OVER EACH ONE TO INSURE THAT IT WAS
CONSISTENT WITH THE NOTES HE HAD TAKEN ON EACH CASE.
S0 DURING THE COURSE OF THE SUMMER. FRED KYLE AND FRED
CHAIKEN MANAGED TO COLLECT INFORMATION OF THIS TYPE ON 243
CASES.
RA. WHICH SUMMER WAS THAT?
A. THAT WAS THE SUMMER OF 1979.
WITHIN THE UNIVERSE OF CASES WE HAD DEFINED AT THAT
TIME, THEY COLLECTED INFORMATION ON ALL THE LIFE CASES, PARDON
ME. ALL OF THE LIFE CASES THAT HAD PENALTY TRIAL, ALL OF THE
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DEATH SENTENCE CASES. AND A RANDOM SAMPLE OF THE LIFE SENTENCE
CASES THAT HAD NOT GONE TO PENALTY TRIAL.
R. WHY WAS THAT PRIORITY ADOPTED?
A. THAT PRIORITY WAS ADOPTED SO THAT NO MATTER HOW MANY CASES
WE GOT, WE WOULD BE ABLE TO ANALYZE THE DEATH SENTENCING
DECISION, BECAUSE WE HAD ALL THE CASES ON THAT DECISION POINT,
PLUS ==
Q. EXCUSE ME. YOU MEAN THE DECISION OF A JURY ON WHETHER OR
NOT TO IMPOSE THE DEATH SENTENCE?
A. RIGHT. OUR FIRST PRIORITY WAS TO SELECT INFORMATION ON ALL
THE DEATH SENTENCE CASES, THEN WE PICKED UP INFORMATION ON ALL
OF THE LIFE CASES THAT WENT TO A PENALTY TRIAL.
THAT POOL OF INFORMATION WOULD HAVE ALLOWED US TO
ANALYZE THE DEATH SENTENCING DECISION TAKEN BY A JURY AT A
PENALTY TRIAL.
HOWEVER, WE ALSO WANTED TO BE ABLE TO ANALYZE THE
DECISION OF THE PROSECUTOR TO ADVANCE CASES TO A DEATH PENALTY.
S0 WE THEN SELECTED A RANDOM SAMPLE OF THOSE CASES AND ASSIGNED
EACH ONE OF THOSE CASES IN THIS UNIVERSE A RANDOM NUMBER AND
PROCEEDED TO WORK OUR WAY THROUGH THAT RANDOM SET OF NUMBERS,
PICKING UP ADDITIONAL CASES AS WE WENT. SG THAT WE KNEW WHEREVER
WE STOPPED WE WOULD HAVE A SCIENTIFIC BASIS TO BE ABLE TO MAKE
INFERENCES ABOUT THE DECISION TO ADVANCE THE CASE TO A PENALTY
TRIAL.
@. JUST FOR THE RECORD“S CLARITY, WHY DID YOU FEEL THAT THE
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RANDOM SAMPLE WOULD LEAD TO THE SCIENTIFIC BASIS FOR MAKING
GENERALIZATIONS?
A. WELL.» 1 BELIEVE THAT BECAUSE I WAS ADVISED OF THAT EFFECT BY
GEORGE WOODWORTH WHO CONSTRUCTED THE SAMPLING DESIGN FOR THAT
PURPOSE. i
@. WHY DID YOU NOT IN 1979 HIRE ADDITIONAL CODERS TO CODE
SUPREME COURT GUESTIONNAIRES SO THAT YOU COULD COMPLETE YOUR
ENTIRE 330 AS YOU HAD HOPED TO THAT SUMMER?
A. BECAUSE WE HAD FIFTEEN THOUSAND DOLLARS AVAILABLE.
@. SO THERE WERE FINANCIAL CONSTRAINTS?
A. FINANCIAL CONSTRAINTS. EXACTLY.
@. ALL RIGHT. DID THERE COME A TIME SUBSEQUENTLY WHEN
ADDITIONAL SUPREME COURT QUESTIONNAIRES WERE CODED?
A. YES. AT THE END OF SUMMER WE HAD ABOUT TWO QUESTIONNAIRES
COMPLETED. HOWEVER, WE HAD EXTENSIVE FILES ON THE ADDITIONAL
|241 CASES. THOSE FILES WERE SENT TO IOWA, AND THERE WE CREATED
A FILE FOR EACH CASE.
AND IN THAT FILE, WE HAD THE ABSTRACT CREATED IN
GEORGIA.
@. LET’S BE CLEAR. THE ABSTRACT WAS WHAT?
|A. THE ABSTRACT WAS THE INFORMATION THAT HAD BEEN DICTATED BY
FRED KYLE OR FRED CHAIKEN ON EACH CASE FROM THE SUPREME CDURT
RECORDS.
@. WHAT ELSE DID THE FILES CONTAIN?
A. IT ALSO INCLUDED A SUMMARY OF THE PROCEDURAL POSTURE OF THE
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CASE. IT INDICATED THE DATE. AND THE. OF THE OFFENSE, THE OTHER
DETAILS OF THAT SORT» AND WHETHER OR NOT THE CASE HAD ADVANCED
TO A PENALTY TRIAL. |
THAT FILE ALSO INCLUDED. WHEN IT WAS AVAILABLE, THE
DENNIS YORK QUESTIONNAIRE, AND THE DENNIS YORK ABSTRACT, AS WELL
AS IN EACH CASE THE OPINION OF THE GEORGIA SUPREME COURT.
@. I’M GOING TO ASK YOU, PROFESSOR BALDUS, IF YOU WOULD, TO
LOOK THROUGH DB-29 THROUGH DB-33 AND IDENTIFY EACH OF THOSE
DOCUMENTS WITH RESPECT TO THE TESTIMONY YOU/VE JUST GIVEN, IF
YOU WOULD?
A. THESE DOCUMENTS ARE AN EXAMPLE OF THE FILE THAT WE GENERATED
FOR EACH OF THESE 43 CASES.
THE FIRST OF THESE DOCUMENTS. DB-29, IS THE OPINION OF
THE GEORGIA SUPREME COURT IN THE SUBJECT CASE WHICH IS INCLUDED
HERE INVOLVING DAVID SAUNDERS.
AND THEN AS WE MOVE ON, THE SECOND DOCUMENT IS THE
DENNIS YORK QUESTIONNAIRE. THIS IS AN EXAMPLE OF THE
QUESTIONNAIRES THAT DENNIS YORK COMPLETED FOR LIFE SENTENCE
CASES. THIS PARTICULAR CASE WAS A LIFE CASE. AND IT PROVIDES A
GOOD EXAMPLE OF THE KIND OF WORK THAT MR. YORK DID IN HIS
CAPACITY AT THE GEORGIA SUPREME COURT.
THE NEXT DOCUMENT, WHICH IS LABELED DB~31, IS AN
EXAMPLE OF A DENNIS YORK SUMMARY. THIS IS A FAIRLEY BRIEF ONE,
BECAUSE ITS NOT A TERRIBLY COMPLICATED CASE. BUT IT IS TYPICAL
OF THE KINDS OF SUMMARIES THAT WE HAD THAT HAD BEEN PRODUCED BY
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DENNIS YORK.
THEN WE MOVE ON TO DB-32. AND WE SEE HERE THE
PROCEDURAL WORKSHEET THAT I DESCRIBED TO YOU EARLIER.
QA. WHO WOULD HAVE COMPLETED THIS WORKSHEET?
A. THIS WORKSHEET WOULD HAVE BEEN COMPLETED BY FRED KYLE OR FRED
CHAIKEN: WHO WAS WORKING WITH HIM.
THE COURT: THIS IS THE ABSTRACT THAT YOU TESTIFIED
THEY PREPARED?
THE WITNESS: THIS IS THE PROCEDURAL ABSTRACT. YOUR
HONOR, THE ABSTRACT DEALING WITH THE FACTS OF THE CASE COMES
NEXT.
BY MR. BOGER:
@. WHEN YOU SAY NEXT, PROFESSOR BALDUS, ARE YOU REFERRING TO
DB-337
A. YES, DB-33.
R. WHAT DOES DB~33 CONTAIN?
A. DB-33 CONTAINS THE CORE OF FACTS THAT WE WERE INTERESTED IN.
THE FACTS CONCERNING THE NATURE OF THE OFFENSE, CHARACTERISTICS
OF THE VICTIM, AND THE CHARACTERISTICS OF THE DEFENDANT THAT
WERE APPARENT IN THE SUPREME COURT RECORD.
R. LET ME ASK YOU A QUESTION ABOUT DB-33 IN THAT REGARD. I
NOTICE THE FORMAT HERE, WITH APPARENTLY "BRIEFS ON APPEAL" BEING
THE FIRST ITEM: AND "A" IS “DEFENDANT’S BRIEF"3 AND "B" UNDER
"BRIEFS ON APPEAL" IS "PROSECUTOR’S." AND "C" IS THE ATTORNEY
GENERAL. IS THAT A FORMAT THAT WAS REGULARLY FOLLOWED IN THESE
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ABSTRACTS?
A. YES. 1 WOULD NOT SAY UNIVERSALLY, BUT REGULARLY. BECAUSE WE
ASKED THE PEOPLE IN GEORGIA, FRED KYLE, AND FRED CHAIKEN, TO
INDICATE THE SOURCES OF THEIR INFORMATION. WE HAD A
HIERARCHICAL SYSTEM FOR SELECTING DATA AS THE MOST, IF THE FACT
WAS REPORTED IN THE SUPREME COURT REPORT, THAT’S WHERE WE
OBTAINED OUR INFORMATION. WE WANTED TO KNOW WHERE THESE THINGS
CAME FROM. THIS IS A GOOD EXAMPLE. AS YOU CAN SEE MOST OF THE
INFORMATION CAME FROM THE ATTORNEY GENERALS BRIEF WHICH 1S
ALWAYS RICH ON THE FACTS OF THE INDIVIDUAL CASES. THATS WHY IT
WAS THE PRINCIPAL SOURCE OF OUR INFORMATION.
WHEN THE SUPREME COURT OPINION HAD VERY LITTLE INFORMAT
IN MOST LIFE SENTENCE CASES, THERE 1S VIRTUALLY NO INFORMATION
ABOUT THE FACTS OF THE HOMICIDE. THE APPEALS CONCERN PROCEDURAL
MATTERS. EVIDENTIARY ISSUES, THERE‘S REALLY NO REASON FOR THE
COURT TO LAY OUT THE UNDERLYING FACTS.
THATS NOT THE CASE IN CAPITAL CASES. GENERALLY YOU,
IN LIFE SENTENCE CASES THAT WAS THE RULE, SO THAT IT WAS
NECESSARY TO EXAMINE THESE BRIEFS.
Q. WHERE DID YOU OBTAIN DB-29 THROUGH -33, PROFESSOR BALDUS?
A. I OBTAINED THIS FROM OUR FILE OF SOME 243 OF THESE.
Q. DO YOU STILL MAINTAIN THOSE FILES IN YOUR POSSESSION?
A. YES, WE HAVE ALL THESE FILES.
@. YOU EARLIER TESTIFIED THAT YOU HAD A FILE FOR EACH CASE.
ARE THESE THE DOCUMENTS THAT WERE FOUND IN THE FILE OF DAVID
[ON
219
BALDUS ~ DIRECT
1 SANDERS?
2 A. YES.
3 MR. BOGER: YOUR HONOR, I MOVE DB-29 THROUGH -33 INTO
4 EVIDENCE AS CONSTITUTING AN EXAMPLE OF THE FILE FROM WHICH THE
S SUPREME COURT QUESTIONNAIRE WAS CODED.
6 MS. WESTMORELAND! NO OBJECTION AS BEING AN EXAMPLE.
7 YOUR HONOR.
8 THE COURT: ALL RIGHT, THEY“LL BE ADMITTED.
4 NOW DO I UNDERSTAND THAT THAT EXTENSIVE QUESTIONNAIRE
10 WE LOOKED AT EARLIER, THAT I BELIEVE YOU SAID YOU GOT YOUR
i1 RESEARCHERS TO DC TWO OF THEM, ARE WE GOING TO LEARN THAT
12 SUBSEQUENTLY SOMEBODY DID THOSE FROM THIS BODY OF, WHATEVER IT
13 IS, 20-SOMETHING THROUGH 337
14 MR. BOGER: THAT’S CORRECT, YOUR HONOR.
15 THE COURT: ALL RIGHT. LETS BREAK FOR THE DAY.
16 TO THE TWO CORRECTIONS OFFICERS. WE WILL SEND WORD
17 WHEN WE ANTICIPATE GOING INTO THAT PHASE OF THE TRIAL WHEREIN
is MR. MCCLESKEY’S PRESENCE WILL BE NECESSARY TO ASSIST COUNSEL.
19 BECAUSE HE WAS PRESENT AND HAS SOME KNOWLEDGE OF IT.
20 APPRECIATE YOUR BEING HERE. YOU ARE EXCUSED AND
21 RETURN THE PRISONER TO HIS PLACE OF INCARCERATION.
22 WE WILL BE IN RECESS IN THIS COURT UNTIL 9:30 IN THE
23 MORNING.
24 MR. BOGER®! THANK YOU, YOUR HONOR.
23 -—
2 BALDUS - DIRECT
1 ROBBERY AND NO OTHER CONTEMPORANEOUS OFFENSE. WE ENDED UP WITH A |
2 POOL OF 150 CASES. THAT WAS A POPULATION THAT ALLOWED US TO
3 FURTHER SUBDIVIDE AND THE RESULTS OF THAT FURTHER SUBDIVISION
ARE REPRESENTED ON PAGE 2 OF DB-84, AND FOR THAT STEP IN THE
ANALYSIS. WE, DEVELOPED A SERIES OF RULES THAT WERE USED TO
DEFINE WHICH CASES WERE MORE OR LESS AGGRAVATED AND WE EXAMINED
4
S
&
7 | THESE FILES AND TRIED TO IDENTIFY WHAT WERE THE IMPORTANT :
8 FACTORS THAT TENDED TO DISTINGUISH THEM IN TERMS OF THEIR
9 SERIOUSNESS AND THEN SET UP A SET OF RULES AND THEN SORTED THE
10 CASES THE ACCORDING TO THESE RULES. THEN CALCULATED RACIAL
13 DISPARITIES AMONG THOSE GROUPS OF CASES.
32. THE COURT: SOMEBODY, I CAN’T REMEMBER WHO. CAME UP
13 WITH AN IDEA OR SAYING THAT NOTHING FOCUSES A MAN’S MIND. I
14 THINK IT WAS DOCTOR JOHNSON, NOTHING FOCUSES A MAN‘S MIND LIKE
15 THREATENING TO HANG HIM OR SOMETHING.
14 MR. BOGER: I THINK THAT”S THE --
17 THE COURT: IM NOT THREATENING TO BE HUNG, I“M JUST
i8 HEARING ABOUT IT, AND I“M HAVING TROUBLE FOCUSING MY MIND. ITS 20 LET US ADJOURN FOR THE DAY. AND BECAUSE I HAVE STATUS
21 CONFERENCES TOMORROW MORNING, WE WON‘T TAKE BACK UP UNTIL 10:00. |
22 MR. BOGER: FINE, YOUR HONOR.
23 THE COURT: WE-LL BE IN RECESS UNTIL 9:30 —— NINE
24 Q7CLOCK TOMORROW MORNING.