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April 28, 1960
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Case Files, McCleskey Legal Records. Petition for Writ of Certiorari and Respondent's Reply Brief, 1985. 00405bdc-62a7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5844ad4a-f8f7-4183-a4b5-146ca4aa1716/petition-for-writ-of-certiorari-and-respondents-reply-brief. Accessed August 19, 2025.
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Case Files: McCfeskey: Legal. SC oT US No. $4-631) < Cec N+ Reordents yy, :
CERTIFICATE OF SERVICE
I hereby certify that I am attorney of record for petitioner
Warren McCleskey, and that I served the annexed Petitioner for
Certiorari and Motion for Leave to Proceed In Forma Pauperis on
respondent by placing copies in the United States mail, first
class mail, postage prepaid, addressed as follows:
Mary Beth Westmoreland, Esq.
Assistant Attorney General
132 State Judicial Building
: 40 Capitol Square, S.W.
Atlanta, Georgia 30334
‘All parties require to be- served have Been served.
Done this 28 day of May, 1985.
Wonllind Gor
JOHN CHARLES BOGER
-~ BG -
No. 84-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
WARREN McCLESKEY,
Petitioner,
-against-
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent,
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS
Petitioner Warren McCleskey, by his undersigned counsel,
asks leave to file the attached Petition for Writ of Certiorari
to the United States Court of Appeals for the Eleventh Circuit
without prepayment of costs and to proceed in forma pauperis
pursuant to Rule 46. Petitioner's affidavit of poverty is
attached.
Dated: May 28, 1985. Respectfully submitted,
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
* JOHN CHARLES BOGER
DEVAL L. PATRICK
99 Hudson Street
New York, New York 10013
(212) 219-1900
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 98104
ANTHONY G. AMSTERDAM
New York University
School of Law
40 Washington Square South
New York, New York 10012
* COUNSEL OF RECORD ATTORNEYS FOR PETITIONER
Pad i, 4 77
BY? Won Clanton
\_JOHN CHARLES BOGER
NO. 84-
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1984
WARREN McCLESKEY,
Petitioner,
versus
RALPH KEMP, Director,
Georgia Diagnostic &
Classification Center,
Respondent.
AFFIDAVIT OF POVERTY
I, WARREN McCLESKEY, being first duly sworn, depose and
say that I am the petitioner in the above-entitled case;
that in support of my motion to proceed on Petitioner's
Application for a Writ of Certiorari without being required
to prepay fees, costs, or give security therefor, I state
that because of my poverty I am unable to pay the costs of
said proceeding or to give security therefor and that I
believe I am entitled to redress.
I further swear that the responses which I have made to
the questions and instructions below relating to my ability
to pay the cost of proceeding in this matter are true.
~~
1. Are you presently employed? Yes No
a. If the answer is yes, state the amount of your
salary or wages per month and give the name and address of
~
your employer. yy Y Ve. [5 gra I AT © on Rt
b. If the answer is no, state the date of your last
employment and the amount of the salary and wages per month
which you received.
2. Have you received within the past twelve months any
income from the following sources?
a. business, profession or other form of self-
employment? Yes No LL
———— | e—————
b. rent payments, interest, dividends?
c. any other sources? Yes - - No
If the answer is yes, describe each source of income, and
state the amount received from each during the past twelve’
iat,
/
¥ 7 i / ; Fe
{ / } % oy , ; p “lt Lr’ ; k : Wo
months. Th AR Po Jif jl rng { o£ 2. srl LF Lio ST a in a 2
fit
od
pr, ’ v
Ty (IE A a La [re 7 Fert A A
3. Do you own any cash, or do you have any money in any
checking or savings account (including any funds in prison
A
account)?
Yes No
If the answer is yes, state the total value of the items
- rd
Cr - ri i 0 5 7s - p A Zo - y gl
owned. 7 dal. Le tl ris fd Ak er OC 2 Frid wtp
4. Do you own any real estate, stocks, bonds, notes,
automobiles, or other valuable property (excluding ordinary
household furnishings and clothing)? Yes No fee
If the answer is yes, describe the property and state its
approximate value.
5. List the persons who are dependent upon you for support
and state your relationship to those persons.
I understand that a false statement or answer to any
guestions in this affidavit will subject me to penalties for
perjury.
Ly Wa ats
{ I A od ‘ - 2 - Gu [A
NN
\
Warren McCleskey
wi and sworn to before me,
this day of May, 1985.
en D). gine oc
Notary Stic
My commission expires:
G 2-57
| IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
WARREN McCLESKEY,
| Petitioner,
-against-
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent,
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
* JOHN CHARLES BOGER
DEVAL L. PATRICK
99 Hudson Street
New York, New York 10013
$212) 219-1900
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
k TIMOTHY K. FORD
600 Pioneer Building
| Seattle, Washington 98104
i ANTHONY G. AMSTERDAM
|| New York University
| School of Law
; 40 Washington Square South
New York, New Ycrk 10012
* COUNSEL OF RECORD ATTORNEYS FCR PETITIONER
QUESTIONS PRESENTED
i. Is proof of specific intent or motive to discriminate a
necessary element of an Eighth Amendment claim that a State has
applied its capital statutes in an arbitrary, capricious, and
discriminatory pattern?
2 To make out a prima facie case under the Fourteenth
Amendment, must a capital inmate alleging discrimination in a
State's application of its capital statutes present statistical
evidence "so strong as to permit no inference other than that the
results are a product of racially discriminatory intent or
purpose?” |
3. Does a proven disparity in the imposition of capital-
sentences, reflecting a systematic bias of death-sentencing
outcomes against black defendants and those whose victims are
white, offend the Eighth and Fourteenth Amendments irrespective
of its magnitude?
4. Does a 20-point racial disparity in death-sentencing
rates among that class of cases in which a death sentence is a
serious possibility so undermine.the evenhandedness Of a capital
sentencing system as to violate the Eighth or Fourteenth Amend-
ment rights of a death-sentenced black defendant in that class of
cases?
vA Must a capital defendant proffer evidence sufficient to
prove that he was personally discriminated against because of ais
race in order to obtain an evidentiary hearing on allegations
that he has been subjected to a State death-sentencing statute
administered in an arbitrary or racially discriminatory manner?
i
6. Does the prosecution's failure to correct or reveal the
false testimony of a key State's witness regarding an "informal"
oromise of favorable treatment made to the witness by a police
detective violate the due process principles of Giglio v. United
States? If so, can such a violation be harmless error when no
other evidence informed the jury of the witness' motivation to
testify favorably for the State?
7. Was the trial court's instruction to the jury on the
element of intent -- an instruction virtually identical to the
one condemned in Francis v. Franklin, U5. ; 53 U.S.L.W.
4495 (U.S. April 30, 1985) -- harmless error beyond a reasonable
doubt?
8. Did the State's exclusion for cause of two prospective
jurors who could fairly have determined petitioner's guilt or
innocence, solely because their attitudes toward capital punish-
ment would have prevented them from serving fairly at the penalty
phase, violate petitioner's Sixth, Eighth or Fourteenth Amendment
rights to an impartial jury and to a jury selected from a
representative cross-saction of the community?
|
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TABLE OF CONTENTS
Page
! QUESTIONS PRESENTED TRILLERE FY RGN PI SL RI Ear i
CITATIONS TO OPINIONS BELOW (tee eeeesseccssssacssocsoccocc 1
TUDISDICIIION vs) tae ss sian ites svmanash rat intndnesienvees 1
i CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 2
STATEMENT OF THE CASE 0 0 4.00 6.0.0-0:0 9.0 0 0 0 4.0.¢ 6°06.09¢.00.0:9'90¢ 0.09 2
A. Racial Discrimination And Arbitrari-
ness C60 0 0.0 00 0 0.0689 00 0:09.60 0 00:09 9 9 9'¢ 9:99.60 0.89:¢9%9 2
8 The Historical Setting i ie a 2
2, Race And The Death Penalty ...eseeecanns 11
3. Petitioner's Record Evidence:
The Baldus Studies 2 8 © 8 8 9 0 9 © 8 9 9 0 0 @ 8 0 6° 0 15:3}
4, The Opinion of the Court of
Appeals 2 5 9 8 9 © © 9 © 8 0 8 © 0 8 8 0 0 © 8 5 8 0 00 8 0 0 00 27
B. Petitioner's Giglio Claim ...ccevevecsscsnnss 34
| cds : 5
A Petitioner's Claim Under Sandstrom v.
| Montana and Francis v, PranXlin ....ceceecese 36
D. Petitioner's Death-Qualification
Claim © © © © © © © 6 9 6 © 9 5 8 © 0 5 8 0 0 0 4 OS 0 6 0 0 0 0 0 0 0 4 NPN 37
|| HOW THE FEDERAL QUESTIONS WERE RAISED AND
DECIDED BELOW ER BRE IR ND DT pI TAS Tr SEN 37
REASONS FOR GRANTING THE WRIT (ices eesassssosocsoosccce 40
I. The Court Should Grant Certiorari To
Consider Whether A Condemned Inmate
Who Can Demonstrate Systematic Racial
Differences In Capital Sentencing Out-
comes Must Also Prove Specific Intent
| or Purpose To Discriminate In Order To
Establish An Eighth Amendment Violation .......... 43
| II. The Court Should Grant Certiorari To
E Consider Whether The Extraordinary
| Standard of Proof Imposed By The Court
|! of Appeals In Cases Involving Statis-
| tical Evidence of Discrimination In
Capital Sentencing Conflicts With Prior
| Decisions Of This Court Or Those Of
Delay CilroUiES oii ssic crs sarrsarsiocineinsans vans 46
| III. The Court Should Grant Certiorari To
Review The Court Of Appeals' Holding
| That The State's Nondisclosure Of An
Informal Promise Of Favored Treatment
Does Not Implicate The Due Process
| Requirement Of Giglio v. United States ...eeeeseen SC
i - iii -
|
|
|
|
IV. The Court Should Grant Certiorari To
Consider Important, Unresolved Ques-
tions Regarding Harmless Error Under
Sandstrom v. Montana And Francis v.
PLBORLEN «css irs trans vossssvtaserioesvessrtonernesses
vv. - The Court Should Grant Certiorari On
The Issues Common To This Case, Grigsby
v. Mabry and Keeten v. Garrison ....cocececencccnn
CONCLUSION Ee Te Sr Gey a BE Be i GE TR GR el SS NE aE BE ae ol SE J A J A hh A i tg
APPENDICES
Appendix A - Opinion of the United States
Court of Appeals for the Ele-
venth Circuit in McClesxsy v,
Kemp, 753 F.28 877 (11th Cir,
1985) (en banc), entered
January 29, 1985
Appendix B - Opinion of the United States
District Court for the Northern
District of Georgia, Atlanta
Division, in McCleskey v. Zant,
580 F. Supp. 338 (N.D. Ga. 1984),
entered February 1, 1984
Appendix C - Order denying rehearing,
entered March 26, 1985
Appendix D - Statutory Provisions Involved
mM
| Appendix Statement of Facts From Peti-
tioner's Post-Hearing Memoran-
dum of Law in Support of His
Claims of Arbitrariness and
Racial Discrimination, sub-
mitted to the District Court
in McCleskevy wv. Zant, 580
F. Supp. 338 (N.D. Ga. 1984);
and Statement of Facts from
En Banc Brief for Petitioner
McCleskey, submitted to the
Court of Appeals in McCleskey
vv, Bemp, 783: 9.24 877 {71th
Cir. 1985) (en banc)
Page
54
27
58
TABLE OF AUTHORITIES
Cases : Page
Annunziato v. Manson, 566 F.2d 410 (2d Cir.
$977) evvanvssanvinay IB UE RL A EN TR 53
Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977) «eevveoencnens 38,46,47
Avery v. Georgia, 345 U.S. 559 (1933) «vie tereceresenns 10
Beck v. Alabama, 447 U.S. 625 (1980) «sce ceernvnccns «ov 44
Blanton v. Blackburn, 494 F. Supp. 895 (M.D.
La. 1380), aff'd, 654 F.24 719 (5th Cir,
OnRit A 1980) «sve oie nie ae nine ee vine oie 0s vin nies nh on wi bie ecibie 51
Boone v. Paderick, 541 F.2d 447 (4th Cir.
1976) © © 0 8 0 © © 06 0 8 0 0 0 0 8 0 © © © 6 8 8 6 0 @ 0 2 6 0 0 0 0 0 0 0" 0 0 0 oo 0 0 o 0 0 51
Campbell v. Reed, 594 F.2d 4 (4th Cir. 1979) ..ecvenenn 51
Castaneda Vv. Partida, 430 U.S. 482 (1977) cireensnes oh 47
Coble v. Hot Springs School District No. 6,
682 P.28 7271 (Sth Cir. 1982) seseessssvosrstenseveas . 47
Connecticut v. Johnson, 460 U.S. 73 (1983) +eeecveceann 58,56
Downer wv. Dunaway, 1 F. Supp. 1001 (M.D. |
Ga, JOIN caries rsineos RD LP WEE ARI NI oie bin 10
DuBose v. Lefebre, 619 F.2d 973 (24 Cir.
1980) aviv Gere si ene rte SE PRE vio aes 51
Eastland v. TVA, 704 F.2d 613 (11th Cir.
1983) ie vvrvians LE Pap vais ee wie siti ovis . 4 alsin els Was 48
Eddings v. Oklahoma, 455 U.S. 104 (1982) ..... Slee sie » 44
EEOC v. Ball Corp., 681 F,.28 531 (6th Cir,
yo SR Ra ne ENR PING FR Sess 47
EEOC v. Federal Reserve Bank of Richmond,
698 P.28 633 {4h Cir. 1983) eves ous ele ininin in Nie yee . 47
| Franklin v. Francis, 720 F.2d 1206 (11th
Cire TOB3) cecmennssnsssitinsesinsssssrsrtesssenrsesvy 39
| Francis v. Franklin, U.S. 7-53
C.S.L.A., 44958 (U.S. April 30, 1985) cesvnnsvsnr encase 39,54,55,585
| Furman v. Georgia, 408 U.S. 238 (1972) .eevevensnrcccnn 12:13:38 41,43,44,45
| Furnco Construction Corp. v. Waters,
l 438 0.8. 567 L1078) vu. css enodanusmeesvinensavssanans 49
| Giglio v. United States, 405 U.S. 150
LI0I2) caer tivnvavinn aiais ss css mis trace sae na ah tein winiaie 39,50,52
Godfrey v. Georgia, 446 U.S. 420 (1980) ..ceeenvennse “ee 14,44
Gregg v. Georgia, 428 U.S. 153 (19768) ser eseesea Caos vee 32,13,38
|
|
|
|
|
|
|
{
|
cases Page
Grigsby v. Mabry, 758 F.2d 226 (3th Cir. |
1985) (en DanC) vee es See dieivierinte sie iinie # ssw AN wi Sia 57
Grigsby v. Mabry, 563% F. Supp. 1273 (E.D.
APR, 1983) cre vciatstnnrevvtes sits srssrsesenssssssrssine 40,57
Haber v. Wainwright, 756 F.2d 1520 (11th
Cir. "JOBS YY Cesar viernes WW PS NNN ra UE En 53
Hazelwood School District v. United States,
333 U8. 299 (1977) covivsnevssosntsveosins dive eres # 47
Hunter v. Underwood, U.S. 53
U.S,L.N. 4468: (0.5. April 16, 1385) eee s sae elie 46,47
International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) eevee cansnses oie vo 49
Jones v. Georgia, 389 U.S. 25 (1967) cuvevcesess cleini'n win are 11
Reeten v. Garrison, 742 F.2d 129 (4th Cir.
1984) © 8 0 ¢ 0 8 0 0 0 0 0 0 5 2 0 2 8 8 0 8 9 0 0 9 0 0 8 0 © 6 0 0 9 2-0 & 0 0 0 oe 2 0 0 0 0 0 57
Keeten v. Garrison, 578 FP. Supp. 1164
(WD NCo 1984) worse PER Th NS GE ii No VR NP : 40,57
Roehler v. Engle, 0.8, /. 30-L.EQ.
28 1 £1984) EE EERE olaiein's os 55 i
Lockatt v, Ohio, 438 0.5. S86 C1978Y4, uti sus be 44
Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605 (1973) ..... ov inivvie vive 47
McCleskey v. Kemp, 753 F.2d 877 (11th Cir.
1985) (en banc) ceeceeseesssnne EAE Pa Sa NTE pn passim
McCleskey v. Zant, 580 PF. Supp. 338
(NeDe Ga, 1984) vivre svasnssvsne vite Vinee "rama eee passim
Napue v. Illinois, 360 U.S. 264 (19539) ..eevecevencnenn 50,52
Plessy v. Ferguson, 163 U.S. 537 (1896) .e.eveecesencnn 9,43
Pyle v. Kansas, 317 U.S, 213 1942) ps van resis tes en nnun 82
Reece v. Georgia, 350 U.S. 85 (1935) .uce.s diainie sin amine van 11
Rose v. Mitchell, 443 U.S. 545 (1979) seceveveeensssanas 11
Sandstrom v. Montana, 442 U.S. 510 (1979) cievveervenns 54
Scott v. Sandford, 60 U.S. (19 How.)
303 {1887 ) teers srssasrstrvttnmsannsssrstsrsisevenssinens 2:3,43
Screws v. United States, 325 U.S. 91
{3S45) vidas errr nsnne icie w age itor sHGLIR $e Hine Si ne Vase ve 10
Segar v. Smith, 738 F.24 1249 (D.C.
Cir i984) tives vesrstssrstidnnessavesssssintesoeesess 48,49
Sims v. Georgia, 389 U.S. 404 (1967) .eeeveesvecranncns 11
- gl -
Cases Page
Slaughter House Cases, 83 U.S. (16 Wall.)
S6Rt1872) terrane Shale TR ee 3.7
| smith v. Balkcom, 671 F.2d 858 (5th Cir.
Orit B 3982) sas vessssnnsses crane tine oiuie «eu niniv un .u» 40
Smith v. Balkcom, 660 F.2d 573 (Sth Cir. :
: Unit B 19871) seve vessmerssssecnossnesosveece ‘init 32
| strauder v. West Virginia, 100 U.S. 303
(1886) SS 0 6 0.060 0 063 0 060.59 0 8 5 56.00 9.060689 0.009999 ® ¢ © & © » 6 0° 0 eo eo 8
Sullivan v. Wainwright, 0.5. y
7S LEA. 28 2710 (1983) see errosntercsnsvesvvsrnenssnnne 31
| Texas Dep't of Community Affairs v. Burdine,
| 450 U.S. 248 (1981) survansnesvri Nisin v easy sisi sie 48
| Tucker v. Francis, 723 F.2d 1504 (11th Cir. :
| JOS4Y serve ssninssrsse vation rR Cag ERR I I .iaieia 39
| Turner v. Fouche, 396 U.S. 346 (1970) .....cceveenens ie 11
|| United States v. Bigeleisen, 625 P.28 203
| (Beh Cir. I9B0) sors tsvevcosssensnes sa teiee Cag gn 51
United States wv. Butler, 567 F.2d 885 (Sth
Cir. 1978 suveiv A ON ng EN LR Ra ain ies 51
Universit
438 U.
vy of California Regents v. Bakke,
8. 285. 41978) chissr aris cnr eenies “th vinEeie toad cine sos 9
public Nat'l Bank, 505 F.
N.D. Tex. 1980), vacated on
ds, 723 P.24 119% (53&h Cir.
Vuyanich v. Re
Supp. 224 (
other groun
1932) oar n= be ps sve Eee oy SE 48,49 |
| |
ll Wainwright v. Adams, U.S, : 80 :
L.BA.24 BOY (1984) vive ssrssrssnmssssssssnssnsnes in ne 37
Wainwright v. Ford, g.s. v.82
L.EG.28 977 (1984) cesses cevssvosnines RPE ONE I TN 37
| Washington v. Davis, 426 U.S. 229 (1976) .ceuveeevnnnns 46,47
| Whitus v. Georgia, 385 U.S. 545 (1967) .eseevesn alee 11
Wilkins v. University of Houston, 654
P.24 388 (Sth Cir. 1981), vacated
and remanded on other grounds, 439
SERIF UTR] cer tre sar rennin raters ns srr bunt bias 47
|
Williams v., Georgia, 349 U.S. 375 (1953) seosssnrevranes dh
if ‘Williams v. Qriswald, 743 P.2& 1833 (11th
I Cle, ASB Yo, re rae ah Fra Pe Rong 52
i
| Witherspoon v. Illinois, 391 U.S. 510 (1968) ,cevevers. 57
|| Wolfe v. Georgia Ry. & Elec. Co., 2 Ga. :
ADD. 499, 58 S.E. 899 (19307) sssservvsencavvenssrnsny 9
- vii -
|
|
|
a
Cases Page
Woodson v. North Carolina, 428 U.S. 280
(1078) wees vsson eaves simone sn sivivins sees ainine nn nie visieiti 44
| Yick Wo v. Hopkins, 118 U.S. 356 (1886) ...eeveernn ‘ic nih 14
| Zant v. Stephens [II], 462 U.S. 862 (1983) ....... sine in 15
| Zant v. Stephens [I], 456 U.s. 410 (1982) |
(DET CULlBM) ceecerertetsrsveversvscsesssnennres Gini 14
Statutes
13 UeSCe § 757 vavevrsssninnnsava sie EN I" Gi REPL 53
28 U.8.Cu.§ 125441) wevvnns sie is wiaee » wie ine w win in winereinte in ele 2
| 2a. Code Ban. § 27-2334. 1{BILZ) Vass virravrnrannsernens 25
Former Ga. Code § 77-9904 (1950) eevee enn ie ct erin sini on : eo)
The Code of the State of Georgia
(R. Clark, T. Cobb & D., Irwin,
compilers 1881) «icv vecencene WE RP INE SERRE a “tos 4
Emancipation Proclamation, 12 Stat.
1267, Jan. §° 1863 © eo 8 0 2 oo @ © 6 0 0 0 8 0 0 9 0 0 0 00 08 0° 0 8 0 os ee eo oo 5
Other Authorities
D. Baldus & J. Cole, Statistical Proof
of Discrimination (1980) ecesvressesesens EGR 16
Bickal, The Original Understanding and
the Segregation Decision, 69 Harv. L.
REV. 1 1958) wessrnesesstssnnsnnsvnaviviensy Err RPE 7
W. Bowers, Legal Homicide: Death as
Punishment in America 1864-1982 (1984) ...... cuies Cnn 12
Bowers & Pierce, Arbitrariness and Dis-
crimination under Post-Furman Capital
Statutes, 26 Crime & Deling. 563 (1980) ...cecuen HE 12
Colonial Records of Georgia (A. Candler,
| ed. 1904) © © 0 9 2 © 9 © 5 0 O° 4 3 0 0 9 5 SO ® C Oo SO 2 0 000 ® & 6 0 0 oo 0 0 0 & 0 0 4
D. Fehrenbacher, The Dred Scott Case: Its
Significance in American Law & Politics | (1978) ®@ 0 0 © oo oo © © © & © e 6 © oo 9% © © 8 8 0» e © © @ 6 % 0 © 8 © 0 © Oo 0 0° 0 8 OD 0 0 O° O° Oo Bb 4
|
| v ‘
i! Fleming, Documentary History of Recon-
| truction (1906) ® © © © ® @ 9% 8 ® 8 © 8 °° 8 0 PO © 0 6 ee O° 0° 8 9° 0 OO ® oo #0 ° ° oo 4
| J. Franklin, The Emancipation Proclamaticn
i (1963) 0 0 0 0:5. 9.0 6-09 58 086 0 ¢ 69.960 00 0°06 0 9 3°59 9 "99 oe ® 0 oo oo 0» Ss © & eo 5
|
| Garfinkel, Research Note on Inter- and
Intra-Racial Homicides, 27 Social
Forces 369 (1945) .cevre Pr SRE Ew J SIR PRN De RNG 32
i Other Authorities : Page
L. Higginbotham, Jr., In The Matter of
Color: Race & The American Legal Process Hea
(1978) G0 00.0660. 0095.00 90608 6950648995904 064898909 9.6 99.8659 4
J. Hurd, The Law of Freedom and Bondage
in the United States (Vol. I. 1858; :
vol. 11, 1862) toi 0 so eles amin ins Hin sis nM bse Ges eve RY eee 3
F. Johnson, The Development of State
Legislation Concerning the Free Negro
| (1958) TER EEE a a Se SRLS WT TE ME Ba Ch a he BB i ga i RN a i ¥
| Johnson, The Negro and Crime, 217 Annals
93 {1947) seer rvavvnessersrsrsassrestre srs rss ebanenens 12
L.. Litwack, Been In the Storm So Long:
The Aftermath of Slavery (1979) eeceecesoessnccscccs 6
J. McPerson, History of the Reconstruction
(HO7]) ies vinninessssntensrnsrenssosorssnsitessainnsios ee
7
G. Myrdal, An American Dilemma: The
Negro Problem & Modern Democracy (1944) evevrencsrnen 10
N.Y. Times, July 27 1946 POE EE Br a Sy RSE 1 Tt Tn I BE BE EE a dh ith 0 pl. Ail GE 8. 10
Radelet, Racial Characteristics and the
Imposition of the Death Penalty, 456
Am. Soc. Rev. 918 {1981) C.® 0 8.8.9 0.0.9 5-90.00 60908 9.900800 12
| F. Raper, The Tragedy of Lynching (1933) .cvcieeccccenn 10
Report of the Joint Committee on Recon-
struction, 39 Cong., 1st Sess., Part
A (1867) NINE PE PS ee Te a Te WH WR i Bo Sl TE CE Fe Gh nih Bud Oh fil de 6
"B. Schwartz, Statutory History of the
United States - Civil Rights (1960) «eee ececennecnsn 5
RK. Stampp, The Peculiar Institution:
Slavery in the Ante-Bellum South
(1956) SEEN TE TU Re TS Ee TE LR fd Ih a SR Ri Seat ai 3.5 States' Laws on Race and Color (P. Murray
ed. 1950) cine dss rin sin tis ensiinisv ree vis Cisse nts ver ee i)
J. tenBroek, Equal Under Law (1963) .eeeevceccenencncnn 7
United States Dept. of Justice, Bureau of
Prisons, National Prisoner Statistics,
No. 46, Capital Punishment 1930-13970
(BUG. 19771) sveessesvnssvtnrinssssnssnesrssnvssesnssssvnse 11
T. Wilson, The Black Codes of the Soutn
(1965) FE RRO EC ME SE NE RE hd 3 0 of BN i 2 on Ji HE i Sh sh i Sh 7
Wolfgang & Riedel, Race, Judicial Discre-
tion and the Death Penalty, 407 Annals
| THO UMBY 19730 veruirininss eae HA al Ge 12
Wolfgang & Riedel, Rape, Race, and the
Death Penalty in Georgia, 45 Am. J.
| Orthopsychiat. 638 (1975) ieee eeneccacccacnns isin sine 12
1
| Zeisel, Race Bias in the Administration of
the Death Penalty: The Florida Experience,
95 Har. Tis Rev. 456 (1981) 0 0 0 0 0 0 6 8 90 9 90 98 0 0:89.90 90 12
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
WARREN McCLESKEY,
Petitioner,
-against-
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent,
PETITION POR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Petitioner Warren McCleskey respectfully prays that a writ
of certiorari issue to review the judgment of the United States |
Court of Appeals for the Eleventh Circuit in this case.
CITATIONS TO OPINIONS BELOW
The majority, concurring, and dissenting opinions in the
United States Court of Appeals for the Eleventh Circuit en banc,
which are officially reported at 753 F.2d 877 (11th Cir. 1985),
are annexed as Appendix A,
The opinion of the United States District Court for the
Northern District of Georgia, Atlanta Division, which 1s offi-
cially reported at 580 F. Supp. 338 (N.D. Ga. 1984), is annexed
as Appendix B.
JURISDICTION
The judgment of the Court of Appeals was entered on January
29, 1985, timely motion for rehearing was denied on Marcn 28,
1985, A copy of the order denying rehearing is annexed as
Appendix C. The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
This case involves the Sixth Amendment to the Constitution
of the United States, which provides in relevant part:
In all criminal prosecutions, the accused
shall enjoy the right to a ... trial, by an
impartial jury;
the Eighth Amendment to the Constitution of the United States,
which provides in relevant part:
[N]Jor [shall] cruel and unusual punishments
[be] inflicted;
and the Fourteenth Amendment to the Constitution of the United
States, which provides in relevant part:
[N]or shall any State deprive any person of
life, liberty, or property without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the
laws.
The case also involves the following statutory provisions,
the texts of which are set forth in Appendix D: Former Ga. Code
Ann. §§ 26-603; 256-604; 26-1101; 59-806(4); 59-807.
STATEMENT OF THE CASE
A. Racial Discrimination and Arbitrariness
. The Historical Setting
For the first two hundred and fifty years of our colonial
and national experience, black persons, as Chief Justice Taney
confessed in the Dred Scott case, were "regarded as being of an
inferior order; and altogether unfit to associate with the white
race, either in social or political relations; and so far
inferior, that they had no rights which the white man was pound
eo accept ... This opinion was at that time fixed and universal
in the civilized portion of the white race. It was regarded as
an axiom in morals as well as in politics, which no one thought
of disputing, or supposed to be open tO dispute; and men in every
grade and position in society daily and habitually acted upon it
in their private pursuits, as well as in matters of public
concern, without doubting for a moment the correctness of this
opinion." Scott v. Sandford, 60 U.S. (19 Bow.) 393, 407 (1857).
This radical judgment about the relative worth of plack and
white lives found its way deep into the fabric, not only of the
national mind, but of the criminal law. Well before the Civil
War, mos t of the Southern States had promulgated separate "slave
codes" that harshly regulated the criminal and civil conduct of
1
black persons. Although the colony of Georgia, for example,
initially banned the importation of blacks and forbade their use
See generally J. Hurd, The Law of Freedom and Bondage in the
Jnited States (Vol. I, 1858; Vol. II, 1862). See also RK. Stampp,
The Peculiar Institution: Slaverv in the Ante-Bellum South
206-31 (1956). Id. at 210:
State criminal codes dealt more severely with
slaves and free Negroes than with whites. In
the first place, they made certain acts felonies
when committed by Negroes but not when committed
by whites; and in the second place, they
assigned heavier penalties to Negroes than
whites convicted of the same offense. Every
southern state defined a substantial number of
felonies carrying capital punishment for slaves
and lesser punishments for whites. In addition
to murder of any degree, slaves received the
death penalty for attempted murder, manslaugh-
ter, rape and attempted rape upon a white woman,
rebellion and attempted rebellion, poisoning,
robbery, and arson. A battery upon a white
person might also carry a sentence of death
under certain circumstances.
Id. 3:21:10.
i
2 3
| as slaves, it had by 1750 accepted slavery as an institution;
|
and by the time of the Civil War it had adopted penal laws that
prescribed different sanctions for criminal offenders depending
upon their race and the race of their victim:
For instance, conviction of raping a white
woman, which meant a prison sentence of two to
twenty yvears for a white offender, carried a
mandatory death penalty for Negro offenders.
Even attempted rape of a white woman by a
black man could be punished with death, at the
discretion of the court. On the other hand,
rape of a slave or a free Negro by a white man
was punishable 'by fine and imprisonment, at
the discretion of the court.’
2 1 Colonial Records of Georgia (A. Candler, ed.) 49-52 (1904),
cited in A.L. Higginbotham, Jr., In The Matter Of Color: Race §
The American Legal Process: The Colonial Period 216-27, 439 n.2
(1978).
3 1 Colonial Records of Georgia 56-62 (A. Chandler, ed. 1904).
. 3 D. Fehrenbacher, The Dred Scott Case: Its Significance in
American Law & Politics 31 (1978). See generally The Code of the
State of Georgia (R. clark, T. Cobb & D. Irwin, compilers 1861).
Professor Fehrenbacher notes that murder of a slave by a white
| was, throughout this period, subject to relatively minor punish-
ment under most. state statutes:
Under colonial law, the killing of a slave in
the course of chastisement or in a fit of
passion was a minor offense at most and seldom
y punished. Even for willful, malicious homicide
1 the prescribed penalty was ordinarily no more
| than a fine. Beginning with a North Carolina
| Law of 1774, all of the slaveholding states
| eventually imposed death as the punisnment for
| deliberate murder of a slave. ... Non-fatal
|
|
i
abuse of slaves was occasionally punished under
the common law of the general criminal code, and
by the 1850s most states provided statutory
protection of some kind. The Georgia Code of
|| 1861, for instance, defined excessive whipping
i and various other cruelties as misdemeanors,
1 punishable by fine or imprisonment at the
H discretion of the court....
Fahrenacher, supra, note 4 at 34-35.
|
| !
i
|
i
|
These racial distinctions could work to the advantage of
black defendants, so long as their victims were also black. As
Professor Stampp explains "[a] slave accused of committing
violence upon another slave, rather than upon a white, had a
better chance for a fair trial. Here the deeper issues of
discipline and racial subordination were not involved, and the
court could hear the case calmly and decide it on its merits.
Moreover, the penalty on conviction was usually relatively light.
Slaves were capitally punished for the murder of other slaves
almost as rarely as whites were capitally punished for the murder
5
of slaves.”
One obvious aim of the national government in the Civil War,
6
articulated in the Emancipation Proclamation and subsequently
R ;
embodied in the Thirteenth Amendment, was to end the legal
subordination of blacks in slavery. Yet the close of the Civil
War brought no immediate halt to the widespread Southern pattern
8
of disregard for black life, or to the disparity in lsgal
3 K. Stampp, supra note 1, at 227.
8 12 Stat. 1267, Jan. 1, 1863. See J. Franklin, The Emancipation
Proclamation (1963).
7 slaughter House Cases, 83 U.S. (16 Wall.) 36, 67-69 (1873). See
T B. Schwartz, oscatutory History of the United States -- Civil
Rights 25-96 (13960).
8
After his exhaustive review of contemporary news accounts,
diaries, and other primary Reconstruction sources, Professor Leon
Litwack summarizes his findings on extra-legal violence as
follows: ;
Yow many black men and woman were beaten,
flogged, mutilated and murdered in the first
year of emancipation will never be Xnown. ...
Reporting on 'outrages' committed in Kentucky, 2
(Freedmen’'s] Bureau official confined himself to
several counties and only to those cases in
which he had sworn testimony, the names of the
injured, the names of the alleged offenders, and
the dates and localities.
'I have classified these outrages as follows:
Twenty-three cases of severe and inhuman beating
and whipping of men; four of beating and
shooting; two of robbing and shooting; three of
robbing; five men shot and killed; two shot and
treatment of those black and white defendants actually brought
before the courts. The persisting disparity resulted both from a
: 9
practical inability to sentence whites for crimes against blacks
wounded; four beaten to death; one beaten and
roasted; three women assaulted and ravished;
four women beaten; two women tied up and whipped
until insensible; two men and their families
beaten and driven from their homes, and their
property destroyed; two instances of burning of
dwellings, and one of the inmates shot.’
Because of the difficulty in obtaining evidence
and testimony, the officer stressed that his
report included only a portion of the crimes
against freedmen. 'White men, however friendly
to the freedmen, dislike to make depositions in
those cases for fear of personal violence. The
same reason influences the black -- he is
| fearful, timid and trembling. He knows that
since he has been a frzedman he has not, up to
this time, had the protection of either the
federal or state authorities; that there is no
way to enforce his rights or redress his
wrongs." =
L. Litwack, Been In The Storm So Long: The Aftermath Of Slavery
276-77 (1979) quoting 3 Report Of the Joint Committee on Recon-
struction, 39 Cong., 1st Sess., Part III, at 146 (1387).
| professor Litwack observes that "the infrequency with which
H whites were apprehended, tried and convicted of crimes against
freedmen made a mockery of egual justice." L. Litwack, supra
note 8, at 285. Moreover, the disparate penal sanctions imposed |
| against those few whites who were apprehended for interracial |
crime were in some ways the most striking feature of the post-war
| criminal justice system:
The double standard of white justice was nowhere
| clearer, in fact, than in the disparate punisn-
| ments meted out to whites and blacks convicted
of similar crimes ...: [A] Freedmen's Bureau
| officer in Georgia despaired of any early or
| mass conversion to [the] ... principle ... that
killing a black person amcunted to murder ...
i 'The best men in the State admit that no jury
would convict a white man for killing a freed-
man, or fail to hang a negro who had killed a
white man in self defense.’
L. Litwack, supra note 3, 285-86.
and from the operation of statutes that explicitly made the
severity of punishment dependent upon racial factors. Indeed,
shortly after the war, harsh "3lack Codes" were enacted by
Georgia and other Southern states that retained traditional
differences in punishment for crimes based upon. the race of the
10
defendant and the race of the victim.
It was in large measure this resurgence of both lawlessness
and legally sanctioned discriminatory treatment of blacks
throughout the South that led to the enactment of the Civili
11 12
Rights Act of 1866 and, ultimately, the Pourteenth Amendment.
This Court has since recognized that one principal goal of the
Fourteenth Amendment was to prohibit differential treatment under
State penal law:
The 14th Amendment was framed and adopted ...
to assure to the colored race the enjoyment of
all the civil rights that under the law are
enjoyed by white persons, and to give to that
race the protection of the General Government,
in that enjoyment whenever it should be denied
by the States. It not only gave citizenship
and the privileges of citizenship to persons
£f color, but it denied to any State power tO
13 Slaughter House Cases, supra, 83 U.S. (16 Wall.) at 70-71. S
generally T. Wilson, The Black Codes of the South (13963);
Jonnson, The Development of State Legislation Concerning the Fr
Negro (1958).
11 oid : ;
See generally 1 Fleming, Documentary History of Reconstruction
273-312 (1906); J. McPherson, History Qf the Reconstruction 29-44
(1971). See also Bickel, The Original Understanding and the
Segregation Decision, 69% Harv. L. Rev. 1, 11-12, 56-58 (1956).
12 See J. tenBroek, Equal Under Law 177-81, 203-04 (1963).
withhold from them the equal protection of the
laws, and authorized Congress to enforce its
i provision by appropriate legislation. To
| quote the language used Dy US in the Slaugh-
| ter-douse Cases, 'No one can fail to be
impressed with the one pervading purpose found
| in all the Amendments, lying at the foundation
: of each, and without which ncne of them would
have been suggested; we mean the freedom of
the slave race, the security and firm esta-
blishment of that freedom, and the protection
of the newly made freeman and citizen from the
| oppressions of those who had formerly exer-
| cised unlimited dominion over them.’ So
| again: 'The existence of laws in the States,
| where the newly emancipated negroes resided,
which discriminated with gross injustice and
| hardship against them as a class, was the evil
| ro be remedied, and by it [the 14th Amendment]
such laws were forbidden.’
|
|
| If this is the spirit and meaning of the
| Amendment, whether it means more Or not, it is
to be construed liberally, to carry out the
| purposes of its framers. It ordains that no
| State shall make or enforce any laws which
shall abridge the privileges or immunities of
| citizens of the United States (evidently
referring to the newly made citizes, who,
being citizens of the United States, are.
declared to be also citizens of the State in
which they reside). It ordains that no State
shall deprive any person of life, liberty or
property, without due process of law, or deny
to any person within its jurisdiction the
equal protection of the laws. What is this
but declaring that the law in the States shall ;
be the same for the black as for the white: |
that all persons whether colored or white,
shall stand equal before the laws of the
| States, and, in regard to the colored race,
| for whose protection the Amendment was
| primarily designed, that no discrimination
|
|
|
|
shall be made against them by law because of
their color?
Strauder v. West Virginia, 100 U.S. 303, 306-07 (1886).
Despite these federal constitutional and legislative
efforts, de jure discrimination in state criminal statutes,
although outlawed by the Fourteenth Amendment, continued to
plague the administration of justice, especially in the Southern
states. The climate of public sentiment in which such official
| discrimination persisted was given judicial notice by the Georgia
|
| Court of Appeals in 1907, in a case upholding a cause of action
| in tort for calling a white man black:
It is a matter of common knowledge that,
viewed from a social standpoint, the negro
race is, in mind and morals, inferior to the
Caucasian. The record of each from the dawn
of historic time denies equality ... We take
judicial notice of an intrinsic difference
Detween the two races ... Courts and juries
| are bound to notice the intrinsic difference
between the whites and Dlacks 1n this
country .
| Wolfe v. Georgia Ry. & Elec. Co., 2 Ga. App. 499, ;- 58 8.5,
13
899, 901-02 (1907) (emphasis added).
These discriminatory views, needless to say, fostered a body
of law in the State of Georgia and elsewhere intensely hostile to
black people. In addition to a comprehensive code of civil law
14
designed to segregate the races in most areas of public life,
there was widespread disregard within the criminal justice system
| 13 See generally University of California Regents 7. Bakke, 438 U.S.
265, 390-94 (1978) (opinion of Marshall, J.). Cf. Plessy v.
Ferguson, 163 U.S. 537, 548-532 (1896) ("we think the enforced
separation of the races, as applied to the internal commerce of
the state, neither abridges the privileges or immunities of the
colored man, deprives him of his property without due process of
law, nor denies him the equal protection of the laws.... If the
civil and political rights of both races be equal, one cannot ce |
inferior to the other civilly or politically. If one race be |
| inferior to the other socially, the Constitution of the United
| States cannot put them on the same plane.").
14
See, e.g9., States' Laws on Race and Color 89-117 (P. Murray, ed.
H 1950) (cataloguing Georgia constitutional and statutory provi-
sions enacted to establish a system of racial segregation.)
Among these statutes, for example, is one making it a misdemeanor
for any "person controlling convicts [to] ... confine white and
colored convicts together, or work them chained together, or
chain them together going to or from their work, or at any other
time." Id. at 115, (citing Former Ga. Code § 77-9904 (1950)).
for the rights of black defendants especially, for those charged
1S oy
with capital crimes, as well as frequent resort to extra-legal
; 16
violence against black criminal suspects.
In determining appropriate punishments, Gunner Myrdal
reported in 1942, both the race of the defendant and that of the
victim played an important part: .
I
[Tlhe discrimination dces not always run
against a Negro defendant. It is part Of the
Southern tradition to assume that Negroes are
disorderly and lack elementary morals, and to
show great indulgence toward Negro violence
and disorderliness 'when they are among
themselves.
For offenses which involve any actual or
potential danger to whites, however, Negroes
are punished more severely.than whites.
* %.%
Public tension and community pressure increase
with the seriousness of the alleged crime....
Thera is thus even less possibility for a fair
trial when the Negro's crime is serious. In
the case of a threatened lynching, the court
makes no pretence at justice; the Negro must
be condemned, and usually condemned to death,
before the crowd gets nim.
It is well known to this Court that the influence of racial
discrimination did not disappear from state criminal justice
systems after World War II. On the contrary, the distorting
effects of racial prejudice have continued well into the present
18
era, in the State of Georgia, as elsewhere. As Justice Blackmun
See, e.9., Downer v. Dunaway, 1 F. Supp. 1001 (M.D. Ga. 1932)
(state trial of olack aefendant, dominated by mob violence,
violated due process; habeas relief granted).
16 Between 1900 and 1929, the State of Georgia had the third highest
rate of lynching of any state. F. Raper, The ragedy of Lynching
483 (1933), Four black men were lyncned 1n Monroe County,
Georgia as late as 1946. N.Y. Times, July 27,1946, § 1 at. 1.
, An American Dilemma: The Negro Problem & Modern
7 553 {1344}.
2 G. Myrdal
35
18 gee, e.g., Screws v. United States, 325 U.S. 91 (1945) (Sheriff
Of Baker County, Georgia, oeat black defendant to death on
courthouse lawn during arrest for theft of a tire); Avery v,
Georgia, 345 U.S, 589 (1983) (black jurors systematically
' - 10 -
has written, "we ... cannot deny that, 114 years after the close
of the War Between the States and nearly 100 years after Strauder
[v. West Virginia, supra,] racial and other forms of discrimina-
tion still remain a fact of life, in the administration of
justice as in our society as a whole. Perhaps today that
discrimination takes a form more subtle than before. But it is
not less real or pernicious.” Rose v. Mitchell, 443 U.S. 545,
558-59 (13979).
2. Race and the Death Penalty
The racial discrimination so widely observed in the criminal
justice system of past years has worked particular evil in the
area of capital santishnent. Statistics compiled nationally from
1930 through 1967 reveal that black persons, although never more
than 12 percent of the population, constituted over 53 percent of
138
all those executed during this period. For the crime of rape,
blacks constituted a remarkable 405 of the 4535 total executions
20
that Social scientists who have examined these took place.
ohenomena more closely report that the disparities are not
attributable solely to a higher incidence of crime among blacks.
Rather, "[s]trong statistically significant differences in the
rovortions of blacks sentenced to death, compared to whites
fy
- 4
excluded from black defendant's capital jury by use of separate
white and yellow tickets for white and black prospective jurors) ;
Williams. v, Georgia, 349 U.S. 375 (1955) (same); Rsece v.
deorglia, 350 U.S. 85 (1955) (grand and traverse jury discrimina-
tion); Whitus v. Georgia, 385 U.S. 545 (1967) (jury discrimi-
nation by use of segregated tax records); Jones Vv. Georgia, 389
0.S. 25 (1967) (same); Sims v, Georgla, 38% U.S. 404 (13867)
(same); Turner v. Fouche, 396 U.S. 346 (13970) (underrepresenta-
tion of Dlacks on Taliaferro County, Georgia grand Juries).
19 Sf
No.
United States Dept.
Prisoner Statistics,
(BUG. 1877),
20 1a,
Justice, Bureau of Prisons, National
46, Capital Punishment 1930-1970, 38
when a variety of nonracial aggravating circumstances are
considered, permit the conclusion that the sentencing differen-
- 21
| tials are the product of racial discrimination.”
The possibility of racial bias clearly troubled a number of Justices who voted in Furman v. Georgia, 408 U.S. 238 (1972) (per
curiam), to strike down the capital statutes of Georgia and every
22
other state that then imposed the death penalty. When Georgia's
post-Furman capital statutes subsequently came before the Court
for review in Gregg v. Georgia, 428 U.S. 153 (1976), counsel for
Gregg urged that continued discrimination would be virtually
21 Wolfgang & Riedel, Race, Judicial Discretion and the Death
Penalty, 407 Annals 119 (May 1973). See generally W. Bowers,
. Tegal Homicide: Death as Punishment in America 1864-1982 67-102
(1984) Ch. 3, Race Discrimination in State-1Imposed Executions;
Johnson, The Negro and Crime 217 Annals 93 (1941); Garfinkel,
Research Note on Inter- and Intra-Racial Homicides, 27 Social
Forces 369 (1949); Wolfgang & Reidel, Rape, Race, and the Death
Penalty in Georgia, 45 Am. J. Orthopsychlat. 6538 (1373); Bowers &
Pierce, arbitrariness and Discrimination under Post-Furman
Capital Statutes, 26 Crime & Deling. 563 (1980); Radelet, Racial
Characteristics and the Imposition of the Death Penalty, 46 Am.
Soc. Rev. 918 (1981); Zelisel, Race Blas ln the Administration of
the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 436
(1981).
22 E.g. Furman v. Georgia, supra, 408 U.S. at 249 (Douglas, J.,
concurring) (" (t]he President's Commission on Law Enforcement and
Administration of Justice recently concluded: 'Finally there is
evidence that the imposition of the death sentence and the
exercise of dispensing power by the courts and the executive
follow discriminatory patterns. The death sentence is dispropor-
tionately imposed and carried out on the poor, the Negro, and the
members of unpopular groups'); id. at 309-10 (Stewart, J.,
concurring) ("the petitioners are among a capriciously selected
random handful upon whom the sentence of death has been imposed.
My concurring Brothers have demonstrated that, if any basis can
be discerned for the selection of these few sentenced to die, it |
is the constitutionally impermissible basis of race"); id. at 364
(Marshall, J., concurring) ("capital punishment is imposed
| discriminatorily against certain identifiable classes of people
... studies indicate that while the higher rate of execution
| among Negroes is partially due to a nigher rate of crime, there
is evidence of racial discrimination"). Cf. id. at 389 n.12
(Burger, C. J., dissenting) ("[s]tatistics are also cited to show
that the death penalty has been imposed in a racially discrimina-
tory manner. Such statistics suggest, at least as a historical
matter, that Negroes have been sentenced to death with greater
4 frequency than whites in several States"); id. at 449-50 (Powell,
J., dissenting) ("[i]f a Negro defendant SL .. could demonstrate
| that members of his race were being singled out for more severe
15 punishment than others charged with the same offense, a constitu-
tional violation might be established.")
inevitable, since "the capital sentencing procedures adopted by
Georgia in response to Furman [did] not eliminate the dangers of
arbitrariness and caprice tn jury sentencing that were held in
Furman to be violative of the Eighth and Fourteenth Amendments.”
Gregg v. Georgia, supra, 428 U.S. at 200. The Court did not
disagree with counsel's premise that, under Furman, the Eighth
Amendment requires eradication of the influence of racial
prejudice in capital sentencing. To the contrary, the Court
reiterated Furman's central holding that "[blecause of [its]
uniqueness ... the death penalty ... [may] not be imposed under
sentencing procedures that create] 2 substantial risk that it
[will] ... be inflicted in an arbitrary and capricious manner."
Gregg v. Georgia, supra, 428 U.S. at 188.
However, after reviewing the new sentencing procedures
prescribed by the Georgia statute, id. at 196-98, the Court held
that "[o]ln their face these procedures seem to satisfy the
concerns of Furman.” Id. at 198. This conclusion rested on an
assessment that Georgia's bifurcation of the guilt and sentencing
proceedings, its provision of sentencing guidelines, and its
requirement of appellate sentence review furnished prima facie
"assurance that the concerns that prompted our decision in Furman
are not present to any significant degree in the Georgia proce-
dure applied here." Id. at 207. Justice White, writing for
himself, the Chief Justice, and Justice Rehnquist, agreed,
finding Gregg's argument "considerably overstated," id. at 221.
He reasoned that "(t]he Georgia Legislature has plainly made an
effort to guide the jury in the exercise of its discretion, while
at the same time permitting the jury to dispense mercy on the
nasis of factors too intangible to write into a statute ... I
cannot accept the naked assertion that the effort is bound to
£aill.™ Id. at 222. Justice White thus declined to speculate --
in the absence of clear proof to the contrary -— that Georgia's
experiment with "guided discretion" statutes would inevitably
fail to curb racial discrimination or arbitrariness:
Indeed, if the Georgia Supreme Court properly
performs the task assigned to it under the
Georgia statutes, death sentences imposed for
discriminatory reasons or wantonly or freak-
ishly for any category of crime will be set
aside.
* 2 %
Petitioner's argument that prosecutors
behave in a standardless fashion in deciding
which cases to try as capital felonies is
unsupported by any facts ... Absent facts. 9o
the contrary, it cannot be assumed that
prosecutors will be motivated in. their
charging decision by factors other than the
strength of their case and the likelihood that
a jury would impose the death penalty if it
convicts.
Id. 224-25.
In the post-Gregg era, however, the Court has emphasized
that its approval of the facial validity of Georgia's capital
sentencing procedures constitutes something less than a licensing
of any and every result which they produce. Georgia has "a
constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of the
death penalty," Godfrey v. Georgia, 446 U.S. 420, 428 (1980)
(emphasis added); and the very ratio decidendi of Gregg "recog-
nized that the constitutionality of Georgia death sentences
ultimately would depend on the Georgia Supreme Court construing
the statute and reviewing capital sentences consistently with ...
| [the] concern [of Furman]." 2ant v. Stepnens [I], 456 U.S. 410,
413 (1982) (per curiam). If "Georgia attached the 'aggravating' |
| label to factors that are constitutionally impermissible or
totally irrelevant to the sentencing process, such as + vy he
race ... of the defendant, ... due process of law would require
that the jury's decision to impose death De set aside.” Zant v.
Stephens [II], 462 U.S. 862, 885 (1983).
Thus, the ultimate Eighth Amendment test, the Court has
plainly said, remains whether Georgia's. capital sentencing system
actually works, whether its procedures truly serve to eliminate
the invidious racial distinctions that have haunted its past use
of the death penalty.
3. Petitioner's Record Evidence: The Baldus Studies
Petitioner Warren McCleskey -- a young black man sentenced
to death for the murder of a white Atlanta police officer -- has
alleged that the Georgia system under which.he was sentenced is
racially discriminatory in its application, and is arbitrary and
capricious, violating in practice both the £ighth Amendment and
Equal Protection Clause of the Fourteenth Amendment. To support
those claims, petitioner presented a comprehensive body of
evidence to the District Court during a two-week evidentiary
hearing held August 8-22, 1983. 5 am
Petitioner's submissions included: (1) two multifaceted
social scientific studies of the actual application of Georgia's
capital sentencing system from 1973-1979, each comprising
information on hundreds of relevant items about each case
(including statutory and non-statutory aggravating circumstances,
mitigating circumstances, strength-of-the-evidence factors, and
factors concerning the victim and the defendant); (ii) a statis-
tical study of capital sentencing in Fulton County, where
petitioner was tried and sentenced; (iii) two nonstatistical
"cohort" studies, one investigating all police homicides in
Fulton County since 1973, the other examining those "near
neighbor" homicides in Fulton County similar to Warren
|
McCleskey's; and (iv) the deposition testimony of the Fulton
County District Attorney concerning the sentencing policies and
23
procedures of his office in homicide cases.
Petitioner's expert witnesses included Professor David
Baldus, one of the nation's leading authorities on the legal use
24
| of statistics to evaluate claims of racial discrimination; Dr.
George Woodworth, a prominent theoretical and applied statisti-
25
cian; and -- to evaluate the work of Baldus and Woodworth -- Dr.
Richard Berk, a highly qualified social scientist, frequently consulted on criminal justice issues by the United States
Department of Justice, who served as a member of a distinguished
National Academy of Sciences panel charged with establishing
professional standards for .the conduct of sentencing ce sbatin le
Professors Baldus and Dr. Woodworth testified concerning
their comprehensive studies of the operation of Georgia's capital
sentencing system for the period 1973-1979. Baldus explained
that the studies were designed from the outset to evaluate
|
possible racial discrimination in Georgia's post-Furman capital
system: "[T]lhe decision of the Court in Gregg proceeded on the
23 Petitioner also sought discovery from the State to develop
anecdotal and historical evidence of racial discrimination in the
criminal justice system of Fulton County and the State of
Georgia, and, more broadly, in all city, county and state
government activities. See Petitioner's Motion for Discovery,
dated April 7, 1883. The District Court denied petiticner's
request for this discovery, holding that this information was
"not relevant to any issue presented by the petitioner." Order
of June 3, 1983, at 2. Consequently, petitioner was unable to
present such evidence during his evidentiary hearing.
Professor Baldus is co-author of D. Baldus & J. Cole, Statistical
Proof of Discrimination (1980), a work widely relied upon by
| federal and Stace courts. See cases cited in DB 6. (Each of
petitioner's exhibits bears the initials of the witness through
whom it was offered, e.g., David Baldus exhibits are marked "DB,"
followed by the appropriate exhibit number).
#5 aw 1.
i 26
RB 1; see Tr. 1761-52. (All references to the transcript of the
evidentiary hearing held in the District Court on August 8-22,
1983, will be indicated by the abbreviation "Tr." followed oy the
number of the page on which the reference may be found.)
assumption that the procedural safequards adopted in ... Georgia
... were adequate to insure that death sentencing decisions would
be neither excessive nor discriminatory.... (M]y principal
concern was [to investigate] whether or not those assumptions ...
were valid.” (Tr. 129).
Baldus' studies followed state-of-the-art procedures in
questionnaire design, data collection, and data analysis. Since
the Court of Appeals assumed the validity of Baldus' studies --
denying relief on the ground that petitioner's claims failed as a
matter of law, see App. A. McCleskey v. Remp, supra, 753 F.2d at
886, 894 -- we will not detail here the extraordinary procedures
by which Baldus assured the accuracy and completeness of his
data. A more thorough discussion of his methodology appears in
Appendix E. Here it suffices to repeat the judgment of Dr. Berk,
who evaluated their quality and soundness in light of his prior
comprehensive review of sentencing research for the National
Academy of Sciences:
[Baldus' studies] have] very high credibi-
lity, especially compared to the studies that
[the National Academy of Sciences] oid 2s
reviewed. We review hundreds of studies on
sentencing ... and there's no doubt that at
this moment, this 1s far and away the most
complete and thorough analysis of sentencing
that's ever been done. I mean there's nothing
even close.
(Pr. 1766).
The two Baldus studies show this: Georgia's post-Furman
po
t
administration of the death penalty 1s marked by persistent
racial disparities in capital sentencing -- disparities by race
of the victim and by race of the defendant -- that are highly
statistically significant and cannot be explained by any of the
hundreds of offer sentencing factors for which Baldus controlled.
{Tw 726-28), Baldus' unadjusted figures reveal that Georgia
capital defendants who kill white victims are eleven times more
likely to receive a death sentence than are those who kill black
victims. Among all persons indicted for the murder of whites,
black defendants receive death sentences nearly three times as
often as white defendants: 29% to 8%. (DB 63). Baldus testi-
fied that his expert opinions did not rest upon these unadjusted
figures, however. TO the contrary, he subjected his data to a
wide variety of increasingly sophisticated analytical methods,
employing dozens of models of varying complexity to determine
whether plausible factors other than race might explain the gross
racial disparities. (Pr. 734; see, 8.3. D8 78,79 80, 83, 98;
GW 4). They did not. Rather, the race of the defendant and the
race of the victim proved to be as powerful determinants of
capital sentencing in CeoraLa as many of Georgia's statutory
aggravating circumstances. (See DB 81). The race of the victim,
for example, counts as much in practice toward increasing the
likelihood of a death sentence as whether the defendant has a
prior aueder conviction, or whether he is the prime mover in the
homicide. (See DB 81). The race of the defendant proves more
important than a history of drug or alcohol abuse, or whether the:
defendant is under age 17. (Id).
To quantify the effect of race on capital sentences in
Georgia, Baldus employed a variety of additional procedures,
among them the "index method," an application of the well-recog-
nized statistical technique of crosstabulation. In indexing the
cases, he first sorted the cases into eight groups, according to
their overall "level of aggravation.” (Tr. 876-79). He then
analyzed the racial disparities that appeared within each group
of increasingly more aggravated cases. Some ninety percent of
the cases fell into groups in which almost no one received a
e
e
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
| death sentence. In these groups, naturally, since nearly every
appeared. (Tr. 878-79; sge DB 89).
|
}
- | - ? hd .
. ’ H id
|| defendant was given a life sentence, . no racial disparities
i Yet when Baldus took the two most aggravated groups,
containing approximately 400 cases, and subdivided them into
eight subgroups, gross racial disparities became crystal clear.
| Baldus found dramatic, persistent differences by race of the
|
|
Hl
¥
victim (compare especially columns C and D):
A B C D E
Predicted Average Arithmetic
Chance of Actual Difference
|| a Death Sentence- Death Sentencing Rates in Rate of
|| Sentence ing Rate Black Defendants Involving the Victim
1 (least) for the Rates
Lt £0. 8 Cases at White Black {Col. C
| (highest Each Level Victim Cases Victim Cases - Col. D)
1 «0 .0 .0 .0
| {0/33) (0/9) (0/19)
| 2 .0 .0 .0 .0
| (0/55) (0/8) (0/27)
|
3 .08 +30 13 .19
| (6/76) {3/10) (2/18)
4 «07 23 .0 «23
(4/57) (3/13) (0/13)
5 v2? +35 v1? «18
{15/358) (9/26) (2/12)
6 v7 +38 +05 Nek Xx
(11/64) (3/8) (1/20)
7 41 ed .39 .25
(29/71) (9/14) {S/13)
| 5 .88 91 .75 .16
| (351/38) (20/22) (6/8)
|
| (DB 90), and by race of the defendant:
Ao B C 5 E
Predicted Average ; Arithmetic
Chance of Actual Difference
a Death Sentence- Death Sentencing Rates for in Race of
Sentence ing Rate White Victims Involving the Defen-
1 (least) for the dant Rates
to 8 Cases at Black White {Col..C
(highest Each Level Defendants Defendants =- Col. D)
1 +0 : 0 0 .0
(0/33) (0/9) (0.5)
2 «D .0 .0 «0
(0/55) (0/8) (0/19)
3 .08 30 +03 lt
(6/76) (3/10) {1/39
4 07 cod .04 .19
(4/57) (3/13) (1/29)
5 is 27 .35 .20 | «15
(15/58) (9/26) (4/20)
6 «18 +38 .16 cae
(11/64) (3/8) {S/32)
7 41 .64 “39 vos
(28/71) (9/14) (15/39)
8 .88 31 +89 .02
(51/58) (20/22) (25/28)
(DB 91).
Baldus observed that, even among these 400 cases, little
disparity appeared in the less aggravated cases. " [Blut once the
[overall] death sentencing rate begins to rise, you'll note that
it rises first in the white victim cases. It rises there more
sharply than it does in the black victim cases." (Tr. 882-83.)
As Judge Clark noted in nis opinion below:
rl
Race ls a factor in the system only where
there is room for discretion, that 1s, where
the decision maker has a viable choice. In
the large number of cases, race nas no effect.
These are the cases where the facts are so
mitigated the death penalty is not even
considered as a possible punishment. At the
other end of the spectrum are the tremendously
aggravated murder cases where the defendant
will very probably receive the death penalty,
regardless of his race or the race of the
victim. In between is the mid-range of cases
- NE
|
|
where there is an approximately 20% racial
disparity.
App~ A., 7533 F.2d at 920 (Clark, J. dissenting in part &
concurring in part). (See Tr. 865-71; 882-85).
In addition to
multiple regression techniques
on Georgia capital sentences.
sion analyses permit one to
single factor (or "variable"),
the index method, Baldus used a variety of
to calculate the effects of race
As he explained, multiple regres-
measure the average impact of a
such as the race of the defendant,
"controlling"
across all of the cases. The "regression coefficient” describes
the average effect of that factor, after adjusting for (or
for) the cumulative impact of all other factors
considered. For example, a coefficient of .06 indicates that the
presence of that factor in a case would increase the likelihood
27
of a death sentence bv an average of six percentage points.
Baldus conducted a wide array of such analyses, employing
dozens of combinations of variables (or "models") designed to
include the various important factors which may enter into
capital sentencing determinations. Among these factors were
statutory and nonstatutory aggravating circumstances, mitigating
circumstances and variables relating to the strength of the
evidence. Some models employed all 230 of Baldus' factors (see
DB 83); one was specifically designed by the District Court, at
vetitioner's invitation, to reflect those factors which the court
judged most appropriate and influential in determining sagital
sentencing outcomes. (Te. 2103 14261 1475-76; see Court's Ex.
1). All showed race-of-victim disparities, virtually all of
27 It is important to realize that this does not mean a six percent
increase but a six percentage point increase. Thus, for example,
if the overall likelihood of a death sentence in a given category
of cases is .05, or 5-in-100, a .08 coefficient for the factor
"white victim" would mean a six point increase in the likelihood
of death for such cases, to .11, or 11-in-100. That would, of
course, amount to a 120 percent increase in the likelihood that a
death sentence would oe 1lmposed.
W.l.Se
which were highly statistically
28
race-of-defendant disparities as well.
reflected the following results:
REGRESSION RESULTS
significant.
Non-Racial
Variables in
The Analysis
230 + aggravating,
mitigating, evi-
dentiary and sus-
pect factors
Statutory aggravat-
ing circumstances
and 126 factors
derived from the
entire file by a
factor analysis
44 non-racial vari-
ables with a sta-
tistically signifi-
cant relationship
(P<.10) to death
sentencing
14 legitimate, non-
arbitrary and sta-
tistically (P<.10)
significant fac-
tors screened with
W.L.S. regression
procedures
13 legitimate, non-
arbitrary and sta-
tistically signifi-
cant (P<L.10) fac~-
tors screened with
logistic regression
|
|
H procedures
(DB 83).
28
B
Many showed
For example, DB 83
C
Coefficients and Level of
Statistical Significance
Race of Victim Race of Defendant
.06
{.02)
.07
(.01)
.07
(.0002)
.06
(.001)
.06
{.001)
Statistical significance, Baldus explained, is
.06
(.02)
.06
(01)
.05
(.02)
a measure of the
{Hl a whole,
likelihood that disparate results could be observed in a sample
of cases merely by chance if, in the capital sentencing system as
there are in fact no disparities as large as those
observed in the sample. (Tr. 712-15). As conventionally
expressed in "probability" or "p" values, a figure of .05 means
that the likelihood of a chance finding is 5-in-100; a "p" of
.01, 1-in-100. The "p" values in the table above appear in
parentheses beneath each coefficient.
23d
“The Court of Appeals seized upon the .06 coefficient
reported by Baldus for his 230-plus model in DB 83 as the best
measure of the overall impact of the race of the victim on
capital sentencing outcomes. See ApD. A., 753 F.2d at 896. This
.06 average includes those 90 percent of Georgia cases in which
the aggravation level is so low that death sentences are virtual-
ly never imposed, as well as the highly aggravated cases in which
nearly everyone receives a death sentence. In almost none of
| these low- and high-aggravation cases do racial disparities
appear to be of any consequence. Thus the .06 overall average
obviously reflects extracrdinarily strong racial disparities
within that class of cases in which a choice between a life
sentence and a death sentence is a serious option for the jury.
The average race-of-victim disparity among those so-called
"midrange" cases, which comprise the bulk of the 400 most serious
cases reflected in Baldus' index analysis (see page 19 supra), is
roughly a twenty percentage point difference. (Tr. 1738-40). In
other words, if the average death sentencing rate in the midrange
is fifteen out of one hundred, the circumstances of a white
victim increases the likelihood to’ thirty-five out of one
hundred.
Petitioner introduced a figure illustrating the sentencing
rates among black defendants Dy race-of-victim:
[insert GW 8 here]
(GW 8). Not only does GW 8 reflect a .20 average disparity in
the midrange of cases; it demonstrates, as Dr. Woodworth testi-
fied without contradiction, that petitioner McCleskey's own crime
falls in the middle of the midrange. In fact, after reviewing
the results of three separate statistical techniques, Dr.
Woodworth was able to conclude:
[A]t Mr. McCleskey's level of aggravation the
average white victim case has approximately a
twenty percentage point higher risk of
receiving the death sentence than a similarly
situated black victim case.
(Tr. 1740).
Petitioner offered additional evidence, some of it statisti-
cal and some non-statistical, to identify more precisely the
likely impact of Georgia's pervasive racial disparities on
petitioner McCleskey's case. First, Baldus reported upon his
analysis of data from Fulton County, where petitioner was tried.
He testified that his performance of progressively more sophisti-
cated analyses for Fulton County, similar to those he had
employed statewide, "show a clear pattern of race Of victim
disparities in death sentencing rates among the cases which our
analyses suggested were death eligible.” (Tr. 983; see also
1043-44).
To supplement this statistical picture, Baldus examined a
"cohort of 17 Falton County defendants arrested and charged, as
was petitioner, with homicide of a police officer during the
1973-1979 period. Only two among the seventeen, Baldus found,
even went to a penalty trial. One, whose police victim was
black, received a life sentence. (Tr. 1050-62; DB 116), “Pekti-
tioner, whose police victim was white, received a death sentence.
Il Although the numbers were small and therefore require caution, "the principal conclusion that one 1s left with," Baldus testi-
| fied, "is that ... this death sentence that was imposed in
McCleskey's casa is not consistant with the disposition of cases
involving police officer victims in this county. (Tr, 1056).
| - 24 -
i
it
Baldus conducted
a second cohort study, examining
the facts
of those cases in Fulton county that scored nearest tO petitioner
McCleskeY
in their overall level of aggravation
("near neighbors”
cases)
(Tr. 986-91) « After sorting che 32 closest into
pypical, more aggravated
and less aggravated
cases; employing
a
qualitative
measure (Tr. 991), Baldus computed death sentencing
rates for the cases proken down py race of victim and race of
defendant.
within petitioner
McCleskey's
group; ene difference
in rreatment
by race of the victim was forty percentage
points.
(Tr. 993).
In sum, mMOSEt of Baldus' many measures
revealed
strong,
statistical
ly significant
disparities
in capital sentencing
in
Georgia homicide cases; pased upon the race of the victim. {TT
726-28) « race-of-def
endant disparities
also regularly
appeared;
although not with the invariable
consistency
and statistical
significanc
e of the victim statistics.
1d. In response ro the
pistrict Court's question. whether ne could "say rhat what caused
McCleskey
tO get the death penalty «-- was the fact that he
murdered
2 white person,”
(Tr. 1089) «+ Baldus concluded:
No, 1 can't say that was rhe factor. No. But
what I can sayy though, igs when 1 look at all
rhe other legitimate
factors in his case; and
1 look tO the main line of cases in this
jurisdictio
n. statwide,
that arg 1ike his,
particularl
y rhe way B2 cases and cases
involving officer victims are disposed of in
this jurisdicti
on: nis case .1s substantia
lly
out of line with the normal rrend Of decision
on such cases ..- 1 can't Sée€ any factors;
legitimate
factors in his case that would
clearly call for it, rnat would distinguisn
ic
clearly from rhe other cases «-- so you're
1eft with what other factor 1t might oe. and
what I can sayy and what I do say Lis rnat the
racial factor ig possibly rhe thing rhat made
rhe difference
in the case. (A] real sossibi-
CL ——————
—
29 phe reference is to former Ga. Code Ann. § 27-2534.1(p)
(2) which
designates
as an aggravating
circumstance
rnat "(tlhe offense of |
murder, Lape: armed robbery. or vidnapping
was committed while
rne offender was engaged in the commission
of another capital
felony."
petitioner'
s jury was charged on this aggravating
circumstance
.
i | | | | |
|
licy in ny est imation; that that's what made
the difference. But I can't say with any, I
can't quantify the likelinood that that is
true, That's as far as I think I can go in
terms of making responsible judgment.
(Tr. 1085-886).
In response to Petitioner's submission, the State did not
point to any analysis by Baldus in which the racial disparities
disappeared or ran counter to petitioner's claims. The State
of fered no alternative model which might have reduced or elimi-
nated the racial disparities. (Tr. 1609). The State did. not
even propose -- much less test the effect of -- any additional
"explanatory variables," such as factors related to the crime,
the victim, or the defendant. (Id.) Indeed, it admitted that it
did not know whether the addition of any such factors "would have
any effect or not." (Tr. 1567).
The State performed no multivariate analyses of its own to
determine whether black and white victim or defendant cases were
being treated differently in the State of Georgia. (Tr. 1615).
Indeed, the State even declined an offer made by petitioner
during the hearing to take any alternative factors proposed by
the State, have petitioner's experts calculate their effects, and
determine whether the results might reduce or eliminate the
racial effects observed by Baldus. (Tr. 1475-76). In short, the
State presented no affirmative rebuttal case at ne”
The State's principal expert did offer one hypothesis in
rebuttal: that Georgia's apparent racial disparities could pe
explained by the generally more aggravated nature of white-victim
39 what the State did do was to attempt to attack the integrity of
the sources of petitioner's data -- data gathered by petitioner's
experts with the cooperation of state officials from the files of
the Supreme Court of Georgia, the Georgia Department of Pardons
and Paroles, and the Georgia Department of Corrections. Peti-
rioner's detailed description of the data-gathering methods, and
nis factual comment on the State's challenges to them, appear in
Appendix E.
cases. However, that expert never addressed the factual question
critical to his own theory -- whether white- and black-victim
cases at the same level of aggravation are treated similarly, or
differently by the State of Georgia. {Tr. 14884). Ee 2erely
acknowledged on cross-examination that to do so "would have been
desirable.” (Tr. 1613). Petitioner's experts did then address
this hypothesis directly. (Tr. 1297; 1729-32). After testing it
thoroughly (Tr. 1291-96; see GW 5-8; DB 92), they were able to
demonstrate without contradiction that it could not explain
Georgia's racial disparities in capital sentencing. (Tr. 1732).
4. The Opinion of the Court of Appeals
In its opinion, the Court of Appeals does not quarrel with
the factual findings of petitioner's studies. To the contrary,
it expressly "assum[es] the validity of the research," App. A.,
253 F.2d at 886, and "that it proves what it claims to prove."
Id. See also id. at 894. The Court instead rejects petitioner's
claims as a matter of law, concluding that Baldus' findings
"would not support a decision that the Georgia law was being
unconstitutionally applied, much less ... compel such a finding,
the level which setitionay would have to reach in order tO
prevail on this appeal." Id. at 886-387.
The legal analysis producing this result proceeds on two
principal fronts. First, the Court holds that the proof required
to prevail on an Eighth Amendment claim, at least when race is
alleged to have played a part in the sentencing system, is not
substantially distinguishable from the proof of intentional
discrimination required to establish an equal protection claim.
14. at 891-92, The Court admits that "cruel and unusual punish-
ment cases do not normally focus on the intent of the governmen-
tal actor," id. at 892, but reasons that "where racial discrimi-
nation is claimed, not on the basis of procedural faults or flaws
|
in the structure of the law, but on the basis of decisions made
within [the capital sentencing] process, then purpose, intent and.
motive are a natural component of the proof that discrimination
actually occurred.” Id. "We, therefore, nold,"” the Court
concluded, "that proof of a disparate impact alone is inguetl-
cient to invalidate a capital sentencing system, unless ... it
compels a conclusion ... of purposeful discrimination -- i.28,,
race is intentionally being used as a factor in sentencing...."
Turning to getitionsr's Fourteenth Amendment challenge and
to his statistical case under both the Eighth and Fourteenth
Amendments, the Court addresses and resolves, in novel fashion, ft
host of important legal. issues: (i) the proper limits of
statistical evidence in proving intent; (11) the utilivy of
multiple regression analysis; and (iii) the proper prima facie
burden to place on a petitioner alleging intentional discrimina-
tion, including: (a) the magnitude of disparity that must De
shown; (b) the extent to which other variables must be antici-
pated and accounted for; (c) the need to identify those specific
actors who have intentionally discriminated; and (d) the need to
prove individual injury. The Court creates as well a new rule
for cases where, as here, gross disparities appear larger in one
portion of the system (the "midrange") than in the system as a
whole. Finally, it sets forth a standard to De employed by the
lower courts in determining whether evidence of racial discrimi-
nation in capital sentencing warrants an evidentiary hearing. We
will briefly review each of these holdings.
The majority opinion acknowledges that "[t]o some extent a
broad issue before this Court concerns the role that social
science is to have in judicial decisionmaking." Id. at 887. In
addressing that theme, the Court expresses deep skepticism about
the power of statistical evidence, especially to prove intent,
"If disparate impact is soucht to be proved," the Court reasons,
"statistics are more useful than 1f the causes of that impact
must be proved. Where intent and motivation must be proved, the
statistics have even less utility." Id. at 888. Although it
cites prior holdings that "'statistics alone ... under certain
limited circumstances ... might [establish intentional discrimi-
nation} ,'" id., the Court's basic instinct is clearly that "([t]o
utilize conclusions from such research to explain the specific
intent of a specific behavioral situation goes beyond the
legitimate uses for such research." Id. "The lesson ... must be
that generalized statistical studies are of little use in
deciding whether a particular defendant has been unconstito=
31
tionally sentenced to death.” Id. at 893.
The Court's reservations about the ultimate utility of
statistical evidence are directly related to the extraordinary
orima facie standard it sets for a petitioner who would prove
intentional discrimination. It is not sufficient, the Court
holds, to offer proof that such discrimination is more likely
than not:
[P]roof of a disparate lmpact alone 1s
insufficient to invalidate a capital sentenc-
ing system unless that impact is so great that
it compels a conclusion that the system 1s
3] The Court also appears to reject the fundamental property of
regression analysis: its ability to measure the independent
impact of a particular variable on the operation of a system as a
whole and reflect that impact in a coefficient. For example, the
Court states: "The Baldus study statistical evidence does not
purport to show that McCleskey was sentenced to death because of
either his race or the race of his victim. It only shows that in
a group involving blacks and whites, all of whose cases are
virtually the same, there would be more blacks receiving the
death penalty than whites and more murderers of whites receiving
the death penalty than murderers of blacks. The statisticians’
'best guess' is that race was a factor in those cases and has a
role in the sentencing structure in Georgia." Id. at 8955.
Similarly, at another point, the Court finds: ™ [T]he 20%
disparity in this case does not purport to te an actual dispa-
rity. Rather, the figure reflects that the variables included in
the study do not adequately explain the 20% disparity and that
the statisticians can explain it only by assuming the racial
effect." Id. at 838. :
|
{
i
|
[|
|
unprincipled, irrational, arbitrary and
capricious such that purposeful discrimination
... can be presumed to permeate the system.
Id. at 892 (emphasis added). The Court repeatedly insists that
the "disparity [be] .... sufficient to compel a conclusion that
it results from discriminatory intent and purpose," id. at 893.
See also id. at 886-87. It occasionally phrases the prima facie
burden alternatively as a showing "of racially disproportionate
impact ... SO strong as to permit no inference other than that
the results are the product of a racially discriminatory intent
or purpose." Id. ac 889 (emphasis added). See id. at 890.
The Court quickly clarifies, however, that even unquestioned
proof that a racial disparity does exist will not suffice to
prove a constitutional violation unless the disparity can be
shown to be of a sufficient magnitude: "The key to the problems
lies in the principle that the proof, no matter how strong, Of
some disparity is alone insufficient.” Id. at 894. Turning to
the six percentage point overall difference demonstrated in
Georgia's capital sentencing system, the opinion concludes that,
aven 12 "true, this £igure is not sufficient to overcome the
presumption that the statute is operating in a constitutional
manner." Id. at "ign
The Court stops short, however, of declaring that the 20
point disparity Baldus reported for the midrange of cases is
likewise insufficient. Instead the Court complains that "Baldus
did not testify that he found statistical significance in the 20%
disparity tioire and that "he did not adequately explain the
rationale of his definition of the midrange of cases ... leav-
[ing] this Court unpersuaded that there is a rationally classi-
fied, well-defined class of cases in which it can be demonstrated
that a race-of-victim effect is operating with a magnitude
approximately 20%." Id. at FA
Beyond its insistence that a prima facie showing must
include racial disparities of a large, though unspecified,
magnitude, the Court of Appeals also appears -to suggest that no
statistical analysis can be fully adequate if it fails to account
for every Factor that might conceivably affect sentencing
outcomes. The Court faults Baldus' studies, despite their
inclusion of over 230 possible sentencing considerations, because
his "approach ... ignores quantitative [sic] differences in
32 The Court of Appeals grounds its holding in part upon this
Court's disposition of stay applications in three capital cases
from Florida =-- Sullivan v. Wainwright, 0.8. 78
L.Ed.24 210 (1983); Wainwright v. Adams, g.8. +: B30
L.Ed.2d 809 (1984); and walnwrlght v. Ford, U.S, y 82
L.Ed.2d 911 (1984). Noting that the study proffered in those
cases reported a disparity similar to one of Baldus' findings,
the Court concludes that "it is reasonable to suppose that the
Supreme Court looked at the bottom line indication of racial
effect [in the Florida study] and held that it simply was
insufficient to state a claim." Id. at 897. From that specula-
tion, the majority proceeds to a conclusion that all of the
disparities reported by Baldus are insufficient.
33 1 nt rian ; : : : : :
In fact, the table from which this figure is derived indicates
that it is statistically significant at the .01 level. (See DB
90 n.1). Sg
34 But see Tr. 879-85 for Professor Baldus' testimony on this poir
cases: looks, age, personality, education, profession, job,
clothes, demeanor, and remorse, just to name a few," 1d. at 839,
and is "incapable of measuring qualitative differences of such
things as aggravating and mitigating factors." Id. "Generalized
studies," the Court states,
would appear to have little hope of excluding
every possible factor that might make a
difference between crimes and defendants,
exclusive of race. To the extent there is a
subjective or judgmental component tO the
discretion with which a sentence is invested,
not only will no two defendants be seen
identical by the sentencers, but no two
sentencers will see a single case precisely
the same. As the court has recognized, there
are 'countless racially neutral variables' in
the sentencing of capital cases.”
Id. at 894 (citing Smith v. Balkcom, 671 F.2d 838, 859 (5th Cir.
Unit B 1982).
After thus reiterating the theme that capital cases are
routinely affected by a myriad of objective and subjective
considerations, some of them too intangible to be recorded, the
Court in its next thought appears to require a death-sentenced
petitioner to demonstrate that particular actors in his own case
possessed the specific intent to discriminate, and that their
conscious racial biases brought about his sentence. See App. A.,
753 F.2d at 892, 894. We have earlier pointed out the Court's
concern for oroof of malignant intent. Its insistence on proof
of the causal connection between such intent and the death
sentence under attack seems equally clear. The Court several
times identifies as a "limitation™ of the Baldus studies that
"[t]here was no suggestion that a uniform, institutional bias
existed that adversely affected defendants in white victim cases
in all circumstances, or a black defendant in all cases." Id. at
887. Lacking this, the Court demands and fails to find evidence
of racial animus in McCleskey's individual case. It notes that -
"(t]he Baldus study statistical evidence does not purport to show
that McCleskey was sentenced to death because of either his race
or the race of his victim." id. at 895. And its ultimate
conclusion is that:
[elhe statistics alone ars insufficient to
show that McCleskey's sentence was determined
by the race of his victim, or even that the
race of his victim contributed to the imposi-
tion of the penalty in his case.
McCleskey's petition does not surmount the
threshold burden of stating a claim on this
issue. Aside from the statistics, he presents
literally no evidence that might tend to
support a conclusion that the race of
McCleskey's victim in any way motivated the
jury to impose the death sentence in his
case.
Id. at 898.
The same or similar principles lead the Court of Appeals to
announce at least two additional major holdings. First, "assum-
ing arguendo ... that the 20% disparity [in midrange cases like
petitioner's] is an accurate figure," id. at 898, the Court holds
that "a disparity only in the midrange cases, and not in the
system as a whole, cannot provide the basis for a systemwide
challenge.... A valid system challenge cannot be made only
against the midrange of cases." Id. Second, the Court holds
that "a court faced with a request for an evidentiary hearing to
produce future studies" on racial discrimination need not grant a
hearing unless there is evidence that "a particular defendant was
discriminated against because of his race," something the Court
admits that "general statistical studies ... do not even purport
to prove.” Id, az 894.
B. Petitioner's Giglio Claim
Petitioner McCleskey was convicted and sentenced to death
for his part in an armed robbery of the Dixie Furniture Company
in Atlanta, and the murder of police officer Frank Schlatt during
the course of. that robbery. Four robbers entered the store. When
Officer Schlatt, summoned by a silent alarm, came in through the
front door, he was shot and killed. Shortly after the crime,
petitioner confessed to participating in the robbery but insisted
he had not fired the fatal shots.
Two witnesses at petitioner's trial asserted that petitioner
had admitted shooting the officer. One was Ben Wright, a
co-defendant -- himself a possible suspect in the shooting. The
other was Officer Evans, a federal prisoner who had been incar-
cerated with NeClakkey prior to trial. Evans told the jury that
McCleskey had confessed to shooting Officer Schlatt, and had said
he would have done the same thing if it had been twelve police
officers. Evans' testimony was the centerpiece of the prosecu-
tor's argument to the jury that McCleskey committed the shooting
with malice. (R., 1222).
At the time of his testimony, Evans was under federal escape
charges. An Atlanta Police Department-detective had promised
Evans that he would "speak a word" to the federal authorities for
Evans in return for Evans' testimony againt McCleskey. St. Hab.
Tr, 2t 132, quoted in App. A., 753 P.2d at S83. Aftex
McCleskey's trial, McCleskey's Proseculor advised federal
officials of Evans' cooperation, and the escape charges were
dropped. Id.
The District Court below found that Evans' trial testimony
concerning his understanding with the Atlanta police was false
and evasive. The misleading testimony began as follows:
Q: You do have an escape charge still pending, is
that correct?
A: Yes, sir. L've got one, but really if ain't
no escape, what the peoples out there tell me,
because something went wrong out there so I
just went home. I stayed at home and when I
called the man and told him that I would be a
little late coming in, he placed me on escape
charge and told me there wasn't no use of me
coming back, and I just stayed on at home and
he come and picked me up.
Q: Are you hoping that perhaps you won't be
prosecuted for that escape?
A: Yeah, I hope I don't but I don't -- what they
tell me, they ain't going to charge me with
escape no way.
{Trial Tr. 868-68). Evans thus described his escape from a
federal halfway house in Atlanta as nothing more than a misunder-
standing between himself and the halfway house administrators
--nothing for which Evans feared or need fear prosecution. His
testimony on this point is directly contradicted by federal
35
records detailing the circumstances surrounding the escape. de
was asked specifically by the prosecutor whether he had sought or
received from the prosecutor any promises concerning the escape
charge, and he said no. As the District Court found, the jury
was left witH the impression from Evans' testimony that no
promises had been made to him concerning the escape charge in
exchange for his cooperation in the McCleskey prosecution. (R.
1220). His testimony on direct examination in the trial court
was as follows:
Q: [Assistant District Attorney] Have you asked
me to try to fix it so you wouldn't get
charged with escape?
A: No, sir.
Q: Have 1-told you I would try to fix it for you?
35
Those records show that Evans had been told by federal personnel
that disciplinary measures would be taken against him because of
his use of drugs. In describing his activities during his
escape, Evans had told federal prison authorities that ne had
gone to Florida as part of an investigation dealing with drugs,
and that he expected to be well paid for his part. (R. 333, R.
1206),
ii
(Trial Tr. 868-69). And on cross-examination Evans expanded upon
these protestations:
Q: Ckay. Now, were you attempting to get your
escape charges altered or at least worked out,
were you expecting your testimony to be
helpful in that?
A: I wasn't worrying about the escape charge. I
wouldn't have needed this for that charge,
there wasn't no escape charge.
(Trial Tr. 882). That testimony was directly contradicted by
Evans' subsequent testimony in State habeas corpus proceedings
that "the Detective told me that he would -- he said he was going
to do it himself, speak a word for me. That was what the
Detective told me." (St. Hab. Tr. at 122).
Ce Petitioner's Claim Under Sandstrom v. Montana and
Francis v. Pranklin
During its charge to the jury at the close of the guilt-or-
innocence phase of petitioner's trial, the trial court instructed
the jury as follows:
One section of our law says that the acts of a
person of sound mind and discretion are
presumed to be the product of the person's
will, and a person of sound mind is presumed
to intend the natural and probable conse-
quences of his acts, but both of these
presumptions may be rebutted.
36
{Trial Tr. 996-97).
The full instructions appear in the District Court's opinion.
ApD. Bes 580 Pe. Supp. at 384-85 n.21.
After approximately two hours of deliberations, the jury
returned to the courtroom and requested the trial court to give
them further insrruse ions on malice. {Trial Tr. 1007-09). The
trial court then repeated his initial instructions on that
element of the crime. (Id).
D. Petitioner's Death-Qualification Claim
During voir dire, at least two prospective jurors, Ms.
Barbara Weston and Mrs. Emma Cason, were excluded by the State
for cause because of their conscientious or religious scruples
against the death penalty, although neither stated that their
views would preclude them from fairly judging petitioner's guilt
37 a
or innocence. (Trial Tr. 98-99; 129-30). Defense counsel made
timely objection to the exclusion of both jurors. {Trial Tr. 98,
130).
HOW THE FEDERAL QUESTIONS
WERE RAISED AND DECIDED BELOW
A. Petitioner McCleskey alleged in his federal habeas
corpus petition, filed in the District Court on December 30,
1981, that " [tlhe death penalty is in fact administered and
applied arbitrarily, capriciously and whimsically in the State of
Georgia, and petitioner was sentenced to die and will De executed
pursuant to a pattern of wholly arbitrary and capricious inflic-
tion of that penalty in violation of ... the Eighth and Four-
teenth Amendments." (F=d. Habeas Pet. Y 45). He also alleged
that "[t]he death penalty is imposed in this case pursuant to a
pattern and practice ... to discriminate on the grounds of race
3 7 : : = . ‘ +
The full voir dire of each prospective juror appears 1n the
District Court's opinion. App. B., 580 FP. Supp. at 1395 n.l3.
Jaw inthe sdminietration of capital punishment ... [in violation’
| of] the Eighth Amendment and the due process and equal protection
clases. of the Fourteenth Amendment." (Fed. Habeas Pet. { 51).
The District Court held that "the Eighth Amendment issue has
:
| been resolved adversely to [petitioner] in this circuit," based
| upon prior precedent, App. B., 580 F. Supp. at 346. It rejected
petitioner's Fourteenth Amendment claim after extensive discus-
sion on the ground that "petitioner's statistics do not demon-
strate a prima facie case.” Id. at 379.
On appeal, petitioner contended that in rejecting his Eighth
Amendment claim, the District Court "misread both Gregg v.
Georgia, [428 U.S. 153 (1976)]'... and Furman Vv. Georgia, 408
U.S. 238 (1972), upon which Gregg is grounded." (En Banc Brief at 25). Petitioner also maintained that his "comprehensive
statistical evidence on the operation of Georgia's capital
statutes ... constitutes just the sort of 'clear pattern,
unexplainable on grounds other than race,’ Arlington Heights v.
Metropolitan Housing Authority, 429 U.S. 252, 266 (1377), that
the Supreme Court has held to establish an Equal Protection
violation." (En Banc Brief at 27). The Court of Appeals, as
noted earlier, held that, even assuming the validity of peti- | tioner's evidence, it would not suffice to prove an Eighth dr
Fourteenth Amendment violation. @e App. A., 753 P.24 at 886-87. B. Petitioner alleged in his federal habeas petition that
"tlhe State's deliberate failure to disclose an agreement or
| understanding between the State and the jail inmate Offie Evans
... violated the due process clause of the Fourteenth Amendment.
(Fed. Habeas Pet. { 15). The District Court granted relief on
this claim, holding that the "disclosure of the promise of
favorable treatment and correction of the other falsehoods in
|
|
|
Evans' testimony could reasonably have affected the jury's
verdict on the charge of malice murder." App. B., 580 F. Supp.
On appeal, petitioner defended the propriety of the District
Court's ruling under the Due Process Clause. (En Banc Brief,
9-15). The Court of Appeals reversed, reasoning that "(1) there
was no promise in this case, as contemplated by Giglio; and (2)
in any event, had there been a Giglio violation, it would be
harmless.” App. A., 753 F.24 at 883.
Co Petitioner alleged in his federal habeas petition that
"t]he trial court's charge to the jury regarding presumption of
intent contravened petitioner's due process rights under the
Fourteenth Apsrinent,” (Fed. Habeas Pet. § 29). The District
Court, conceding that "[t]he charge at issue ... is virtually
identical to those involved in Franklin [v. Francis, 720 F.2d
3206 (¥ich Cir. 1983), afi'd, U.S. y 53 0.8.L.W. 4495 (U.S. April 30, 1985)] and Tucker [v. Francis, 723 F.2d 1504
il (11th Cir. 1984), vacated and reh'g en banc pending], chose "to
| follow Tucker v. Francis," rather ‘than Franklin and concluded
that "the instruction complained of ... created only a permissive
n
inference. App. B., 580 F. Supp. at 387.
-
On appeal, petitioner contended that "(t]he jury instruction
here created a mandatory presumption, and thus the District Court erred when it concluded that no Sandstrom violation was present.”
{ {En Banc Brief at 24). The Court of Appeals reasoned that "in
the course of asserting his alibi defense McCleskey effectively
conceded the issue of intent, thereby rendering the Sandstrom
| violation harmless beyond a reasonable doubt." App. A., 753 F.2d
| at 904.
|
| D. Petitioner alleged in his federal habeas petition that
|
"(t]he trial court improperly excused two prospective jurors
without adequate examination of their views regarding capital
1
|
|
|
i
punishment in contravention of petitioner's Sixth, Eighth and
Fourteenth Amendment rights.” (Fed. Habeas Pet. { 82). The
District Court held that "([pletitioner's argument that the
exclusion of death-scrupled jurors violated his right to be tried
by a jury drawn from a representative cross section of his
community has already been considered and rejected in this
circuit. Smith v. Balkcom, 660 F.2d 573, 582-83 (5th Cir. Unit B
1981." App. B, 580 °F. Supp. at 398."
On appeal, petitioner urged the Court of Appeals to recon-
sider its prior holding in light of Grigsby v. Mabry, 569 F.
Supp. 1273 (E.D. Ark. 13983), and Reeten v. Garrison, 578 F. Supp.
1164 (W.D.X.C. 1984). (En Banc Brief at 70). The Court of
Appeals declined to do so’, remarking that "[w]hatever the merits
of [Grigsby and Reeten], they are not controlling authority for
this Court." App. A,, 753 F.24 at 501,
REASONS FOR GRANTING THE WRIT
This case was dominated below by the petitioner's evidence
.that race continues to play a role in Georgia's capital sentenc-
14
ing system. We therefore turn first to the important legal
issues related to petitioner's racial discrimination claim.
Nevertheless, we commend to the Court's attention the additional
constitutional questions posed by petitioner's case.
* x * *
No single national failing has more deeply tarnished the
promise of our Constitution than our tortured history of
tolerance for racial discrimination, especially in the adminis-
tration of criminal justice. Whether embodied explicitly in the
language of statutes -- slave codes, black codes, Jim Crow laws
-- or reflected in customs and practices permitting "unjust and
illegal discriminations between persons in similar circumstances,
material to their rights,” Yick Wo v, Hopkins, 118 U.S, 356, 374
(1886), the official acceptance of different treatment of persons
according to their race has compromised everything we as a nation
profess about equal justice under law.
In the past three decades, the nation has, by addressing its
racial problems, achieved subtantial progress toward ridding our
public life of the taint of racial injustice. Qur hardwon
achievements have come only when we have summoned the collective
will to face facts, and deal directly with the hard problems
posed by those facts.
At the time of Furman v. Georgia, 408 U.S. 238 (1972), this
Court appeared deeply troubled by the perception, "based on ...
almost daily exposure to the facts and circumstances of hundreds
and hundreds of federal and state criminal cases involving crimes
for which death is the authorized penalty," 408 U.S. at 313
(Waite, J., concurring), that America's capital punishment
statutes, though fair on their face, were in practice so perva-
sively infected with racial bias that the death sentence was
"wantonly and ... freakishly imposed." 408 U.S. at 310 (Stewart,
J., concurring). The decision in Furman gave states an opportu-
nity to fashion new laws, statutes that all hoped might "minimize
the risk of wholly arbitrary and capricious" sentencing. Gregg
v. Georgia, supra, 423 U.S, at 1838. V¥When in 1976, the Court
upheld the new laws on their face, it did so on the assumption
that their procedures would suffice to eliminate old problems. To
indulge that assumption was appropriate: state statutes properly
come before the Court with a strong presumption of constitutiona-
lity, and the Court -- as Justice White wrote =-- was therefore
unwilling "to interfere with the manner in which Georgia has
chosen to enforce sdan laws on what is simply an assertion of a
lack of faith in the ability of the system of justice to operate
in a fundamentally fair manner." Gregg v. Georgia, supra, 428
U.S. at 226 (White, J., concurring in the judgment).
Petitioner McCleskey now brings before the Court something
|
| profoundly different from a mere "assertion of a lack of faith.”
| Through the work of Professor Baldus and his colleagues, peti-
| tioner has adduced proof that, despite Georgia's revised proce-
| dures, race continues to play an important part in determining
| wnich Georgia capital defendants will live and which will die.
Baldus' studies constitute the most thorough and illuminating
research into capital sentencing undertaken in this generation.
Their message is dreaiivoosls the influence of race is real, it
is persistent, and it operates as powerfully as many of Georgia's
| statutory aggravating circumstances.
The opinion of the Court of Appeals below assumes peti-
tioner's studies to be valid. It thus accepts that racial
factors are systematically at work in Georgia's capital system,
determining life and death. Yet it declares that the Constitu-
tion remains unimplicated by these facts. In reaching this
extraordinary conclusion, the Court of Appeals articulates several principles that independently warrant certiorari, among
them: (i) that Eighth Amendment claims of racial discrimination
and arbitrariness must hereafter be accompanied by proof of
specific intent or motive; (ii) that condemned inmates challeng-
ing racial discrimination in the administration of a state's
capital sentencing system must produce, as part of their prima
facie case, statistical proof so strong that it not only "compels
a conclusion™ of discriminatory intent but addresses every
possible sentencing variable so as to establish that "purposeful
have motivated the actors involved in each particular case; and | { | il discrimination ... can be presumed to permeate the system” and to
|
|
(iii) that future factual hearings will not be warranted Dy
"generalized statistical studies," no matter how powerful, unless
they can demonstrate that the particular inmate's death sentence
was brought about by conscious racial bias.
|
i |
| |
i
|
i
4
|
|
!
|
|
The Court should grant certiorari to examine each of these
subtantial departures from prior law. But more fundamentally,
review is warranted to determine whether the Court below, Dy
erecting artificially high burdens of proof and barriers. tO
relief, has effectively closed off the troubling subject of
racial discrimination from appropriate constitutional review. A
full examination of petitioner's charges of racial discrimination
in Georgia's capital sentencing system would not be painless; but
in the long run it would prove more healthy, and more consistent
with our constieusional commitment to equal justice under lav,
than avoiding the problem by refusing to see it.
This country's interests would not be well served by another
Plessy v. Ferguson; the administration of capital statutes cannot
afford a second Dred Scott. Yet at bottom, the holding in
McCleskey v. Kemp appears to be just that: systematic racial
discrimination in capital sentencing -- at least some level of
discrimination -- can and will be tolerated. The jurisdiction of
this Court extends to very few questions more important than this
one.
I.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER A CONDEMNED INMATE
WHO CAN DEMONSTRATE SYSTEMATIC
RACIAL DIFFERENCES IN CAPITAL
SENTENCING OUTCOMES MUST ALSO PROVE
SPECIFIC INTENT OR PURPOSE TO
DISCRIMINATE IN ORDER TO ESTABLISH
AN EIGHTH AMENDMENT VIOLATION
The primary focus of this Court's Eighth Amendment concern
in capital cases has always been upon the results of the sentenc-
ing process: the Eighth Amendment is violated if "there is no
meaningful basis for distinguishing the few cases in which
[capital punishment] ... is imposed from the many cases in which
it is not." Furman v. Georgia, 408 U.S. 238, 313 (1972) (White,
J. concurring}; 18. at 256 (Douglas, J., concurring) ("[t]lhe
|
|
|
| high service rendered by the 'cruel and unusual' punishment
| clause ... is to require legislatures to write penal laws that
|
| are evenhanded, nonselective, and nonarbitrary, and to require
judges to see to it that general laws are not applied sparsely,
| selectively, and spottily to unpopular groups”).
Such a focus is natural, for the arbitrariness and capri-
ciousness condemned in Furman are inherently deficiencies that
can afflict a system irrespective of conscious choice or deci-
| sion: to be "struck by lightning is cruel and unusual," Furman
v. Georgia, supra, 408 U.S. at 30% (Stewart, J., concurring),
regardless of whether one posits a malevolent deity or an
indifferent universe.
Even when the Court's attention has turned toward matters of
procedure, the ultimate aim has been to require procedures that
| will "minimize the risk of wholly arbitrary and capricious
action." Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of
Stewart, Powell & Stevens, 33.7, Accord Woodson vv. North
Carolina, 428 U.S.7°280, 305 (1976) (opinion of Stewart, Powell &
Stevens, JJ.); Lockett v. Ohio, 438 U.S. 386, 8601 (1978) (plura-
lity opinion); Beck v. Alabama, 447 U.S. 625, 537-38 (1980);
li Eddings v. Oklahoma, 455 0.8. 104, 118 (1982) {Q'Connor , J.y
concurring). The Eighth Amendment burden to ensure evenhanded
sentencing outcomes rests clearly on the State: nlf a State
wishes to authorize capital punishment it has a constitutional
| responsibility to tailor and apply its law in a manner that
avoids the arbitrary and capricious infliction of the death
penalty." Godfrey v. Georgia, 446 U.S. 420, 428 (1980).
The Court of Appeals has now held that proof of arbitrary
and capricious results are no longer sufficient to invoke Eighth
Amendment protection -- at least if that caprice takes the form
of racial discrimination. The Court acknowledges that "cruel and
unusual punishment cases do not normally focus on the intent of
the governmental actor," App. A., 753 F.2d at 892, yet it reasons
that where racial discrimination is the gravamen of a condemned
inmate's complaint, intent and motive are a "natural conponans”
of the proof that discrimination actually occurred. Id. Nothing
in this Court's Eighth Amendment caselaw suggests that such a
component is a necessary element of "a pattern of arbitrary and
capricious sentencing like that found unconstitutional in
Furman." Gregg v. Georgia, supra, 428 U.S. at 195 n.46 (opinion
of Stewart, Powell & Stevens, JJ.). To the contrary, Justice
Douglas in Furman expressly disclaimed the impossible "task ...
[of] divin[ing] what motives impelled these death penalties.”
Purman v. Georgia, supra, 408 U.S. at 253. And the Court in
Godfrey surely did not insist upon convicting either Godfrey's
jury or the Georgia Supreme Court of conscious discriminatory
animus.
The evil against which the Eighth Amendment as construed in
Furman and its progeny seeks to guard is the unequal treatment of
equals in the most important sentencing decision our society
permits. .Petitioner's studies have found that race clays an
independent role in cases that are otherwise equal, after chance
and over 230 other factors have been taken into account. Locating
precisely where and how, consciously or unconsciously, race is
influencing the literally thousands of actors involved in capital
sentencing -- prosecutors, judges, jurors who assemble to make a
single decision in a single case, only to De replaced by other
jurors in the next case, and still others after them -- is
manifestly impossible. Yet "fi]dentified or unidentified the
results of the unconstitutional ingredient of race, at a signifi-
cant level in the system, is the same on the black defendant. The
inability to identify the actor or agency has little to do with
the constitutionality of the system." S783 PF.28 ar 919,
(Hatchett, J., dissenting in part and concurring in part).
The Cour: should therefore grant certiorari to determine
whether proof of discriminatory intent 1s necessary to establish-
ing an Eighth Amendment claim when substantial racial disparities
in sentencing outcome have been proven by petitioner and assumed
by the Court of Appeals.
11.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER THE EXTRAORDINARY
STANDARD OF PROOF IMPOSED BY THE
COURT OF APPEALS IN CASES INVOLVING
STATISTICAL EVIDENCE OF DISCRIMINA-
TION IN CAPITAL SENTENCING CONFLICTS
WITH PRIOR DECISIONS OF THIS COURT
OR THOSE OF OTHER CIRCUITS
In Washington v. Davis, 426 U.S. 229 (1976), and Village of
Arlington Heights v. Metropolitan Housing Development COrp., 429
U.85..2582 (1977), the Court held that under the Fourteenth
Amendment; "official action will not be held unconstitutional
solely because it results in a racially disproportionate
impact.... Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.”
Arlington Heights, supra, 429 U.S. at 265-66. .See, e.g., Hunter
v. Underwood, U.S. , 53 U.S.L.W. 4468, 4469 (U.S., April
18, 1985). Nevertheless, as Justice Stevens noted, "the burden
of proving a prima facie case may well involve differing eviden-
tiary considerations" depending upon the factual context in which
the claim arises. Washington v. Davis, supra, 426 U.S. at 253.
(Stevens, J., concurring). "[{Iln the case of governmental action
which is frequently the product of compromise, of collective
decisionmaking, and of mixed motivation ... [i]t [would be]
unrealistic ... to require the victim of alleged discrimination
- AB
to uncover the actual subjective intent of the decisionmaker.”
Id. Accord Arlington Heights, supra, 429 U.S. at 265; Hunter v.
Underwood, supra, 53 U.S.L.W. at 4469.
In such contexts, the Court has demanded "a sensitive
inquiry into such circumstantial and direct evidence of intent as
may be available.” Arlington Heights, supra, 429 U.S. at 266.
"Necessarily, an invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the
fact, if it is true, that the law bears more heavily on one race
than another. It is also not infrequently true that the discri-
minatory impact ... may for all practical purposes demonstrate
un¢onstitutionality because in various circumstances the discri-
mination is very difficult to explain on nonracial. grounds.”
Washington v. Davis, supra, 426 U.S. at 242. In a series of
related cases, the Court has stressed the central role that
statistical evidence may play in proving discriminatory intent.
See, e.g., Hazelwood School District v. United States, 433 U.S.
299, 307 (1977); (Title VII1 case: "(wlhere gross statistical
disparities can be shown, they alone in a proper case constitute
prima facie proof of a pattern or practice of discrimination");
Mayor of Philadelphia v. Educational Equality League, 415 U.S.
605, 620 (1973) (equal protection case: "statistical analyses
have served and will continue to serve an important role as one
indirect indicator of racial discrimination «.."). See also
Castaneda v. Partida, 430 U.S. 482, 493-54 (1977).
The lower federal courts on whole have followed this Court's
lead, admitting statistical evidence on the issue of discrimina-
tory intent in a wide variety of appropriate contexts. See,
e.g., EEOC v, Federal Reserve Bank of Richmond, 698 F.2d 633 (4th
Cir. 1983); Wilkins v. University of Houston, 654 P.2d 388 (5th
Cir. 1981), vacated and remanded on other grounds, 459 U.S. 8093
(1982); EEOC v, Ball Corp., 681 F.2d 5371 (8th Cir. 1981); Coble
v, Hot Springs School Distcict No, 6, 682 F.24 721 (8th Cir.
1982); Eastland v. TVA, 704 F.2d 613 (11th Cir. 1983); Segar v.
smith, 738 F.2d 1249 (D.C. Cir. 1984); Vuyanich v. Republic Nat'l
Bank, 505 P, Supp. 224 (N.D. Tex. 1980), vacated on other
grounds, 723 F.24 1195 (5th Clr, 1984).
This Court has also outlined an appropriate order of proof
| in those cases in which discriminatory intent is at issue. The
plaintiff is initially required to present a prima facie case,
establishing discrimination by a preponderance of the evidence.
The defendant may then explain or justify its conduct, or may
seek to discredit the plaintiff's proof. Finally, the plaintiff
may reply to the defendant's rebuttal, showing that the defen-
dant's justifications or explanations do not defeat the inference
of intent. See, e.9., Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981).
The Court of Appeals' opinion in this case is, to say the
least, deeply inhospitable toward this Court's major teachings on
rhe use of statistical evidence and on the appropriate uses of
such evidence to establish a prima facie case. It is, moreover,
inconsistent with the very concept of a prima facie case. For
if, as the Court of Appeals held, a prima facie case of discrimi-
nation must be so overwhelming as to "compel a conclusion” of
i| discriminatory intent -- if, as the Court of Appeals also held,
| it must anticipate and dispel in advance every merely possible
| non-racial explanation =-- then the so-called "orima facie" case
P. Pw
is logically irrebutable and required to be so.
The Court of Appeals' decision is also in direct conflict
with many of the lower court decisions interpreting this Court's teachings. The lower federal courts, in statistical cases, have
x 4 1 : 1 : J ‘
| developed a series of criteria for establishing a prima facie |
|
|
ji {i
|
|
|
|
|
|
t
|
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1
|
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| )
$4
case of discriminatory intent. They have been virtually unani-
mous that a standard of perfection is neither attainable nor
required.
"iA] plaintiff's inieial proof must De »
measured against the more generalized function
standard that the Supreme Court has elaborated
in Teamsters v. [United States, 431 U.S. 324
(1977)] ... at 358; Furnco (onstruction Corp.
Vv, Waters, 438 U.S. Sei, 5/1 (1978) and
Burdine, supra, 450 U.S. at 253-254. These
cases nold that a sufficient prima facie case
is made out when the plaintiff shows a
disparity in the relative position or treat-
ment of the minority group and has eliminated
'the most common nondiscriminatory reasons for
the observed disparity.' Burdine, supra, 450
U.S. at 253-254."
Segar v. Smith, supra, 738 F.2d at 1273. See 2.9., Vuyanich v.
Republic Nat'l Bank, supra, 505 F. Supp. at 273-74.
Realistically, the standard of proof to which the Court of
Appeals held petitioner is beyond the power of any party to meet.
Minor refinements of Baldus' studies are certainly possible. A
study that would, however, (1) account for every conceivable
nonracial influence; (ii) eliminate all random factors; (iii)
identify every malevolent actor; and (iv) demonstrate the
quantitative impact of racially invidious intent on each con-
demned inmate's case, is simply not possible. The Court of
Appeals offered no real justification for setting petitioner's
burden so high; it is as if the Court inexplicably determined
flatly to foreclose any further racial challenges to the applica-
tion of capital statutes. Whether so meant or not, the opinion
will undoubtedly have precisely that effect in practice.
The Court of Appeals' opinion reads more generally, however.
The opinion does not purport to limit itself to capital cases:
its potential reach appears to include all equal protection cases
based upon statistical evidence. Yet its announced standards of
proof conflict with virtually every other decided case involving
claims of racial discrimination. If racial discrimination in
capital sentencing ought to be judged by the same standards
applicable in other areas, this Court should grant certiorari to
review an opinion so fundamentally out of line with dozens of
circuit court decisions, and with the many opinions of this Court
explicating the proper burden of proof for a party attempting to
demonstrate discrimination.
If, on the other hand, racial discrimination in capital
punishment is to be judged by some standard dramatically more
strict than that applicable in other areas of the law, the Court
should grant certiorari to say so clearly, and to explain the
constitutional basis for such a distinction...
Ill.
THE COURT SHOULD GRANT CERTIORARI TO
REVIEW THE COURT OF APPEALS' HOLDING
THAT THE STATE'S NONDISCLOSURE OF AN
INFORMAL PROMISE OF FAVORED TREAT-
MENT DOES NOT IMPLICATE THE DUE
PROCESS REQUIREMENT OF GIGLIO V.
UNITED STATES
This case presents an important question of federal consti-
tutional law on which, as the Court of Appeals noted, this Court
has "never provided definitive guidance." App. A., 733 F.24 at
884). At issue is whether the due process clause, as interpreted
by this Court in Napue Vv, Illinois, 380 U.S. 2684 (195%), and
Giglio v. United States, 405 U.S. 150 (1972), requires the State
to corract false testimony of a key witness regarding the State's
informal promises of favored treatment in exchange for the
witness's testimony. Here, because the promise or understanding
which existed between a police detective and the witness was an
informal agreement, the Court of Appeals concluded that its
nondisclosure to the jury did not infringe petitioner's due
| process rights. App. A., 573 F.2d at 884.
- BQ
| |
|
|
The Court of Sopeals’ decision on this question is contrary
to that of a number of other circuits which have concluded that
the due process clause 1s violated by the State's failure to
correct false testimony regarding undisclosed promises of
benefit, informal or tentative in nature. The rationale for the
prevailing rule is stated in Boone v. Paderick, 541 F.2d 447 (4th
Cir. 1976). There, the Fourth Circuit considered the State's
failure to correct false testimony regarding a promise by a
police detective to "use his influence with the prosecuting
attorney" regarding pending charges and concluded:
[R]ather than weakening the significance for
credibility purposes of an agreement of
favorable treatment, tentativeness may
increase its relevancy. This 1s because a
promise to recommend leniency (without
assurance of it) may be interpreted by the
promisee as contingent upon the quality of the
evidence produced -- the more uncertain the
agreement, the greater the incentive to make
the testimony pleasing to the promisor.
-
Id. at 451. Accord Campbell v. Reed, 594 F.2d 4, 6 (4th Cir.
1979) (witness was advised that "everything would be all right).
The other Circuit Courts which have considered this question
have all adopted the same rule espoused by the Fourth Circuit in
Boone. E.g., DuBose v. Lefebre, 619 F.2d 973, 977 {28 Cir. 19380)
(prosecutor agreed to "do the right thing" for witness regarding
pending indictment); Blanton v. Blackburn, 494 F.Supp. 895, 901
(M.D. La, 1980), aff'd, 554 F.24 719 (3th Cir, Unit. A, 1380)
(imprecise agreements reached with four of five key witnesses);
United States v. Bigeleisen, 625 F.2d 203, 205 (8th Cir. 1980)
(prosecutor agreed to "make witness's cooperation Xnown to
authorities™); United States v. Butler, 567 F.2d 885, 888 (9th
Cir. 1978) (agents told witness "they were going to do everything
they could to help hin"). Chief Judge Godbold, writing in
' dissent below, urged adoption of a rule similar to that applied
by the other circuits:
. The proper inquiry is not limited to formal
contracts, unilateral or bilateral, or words
of contract law, but "to ensure that the jury
xnew the facts that might motivate a witness
in giving testimony.’
App. A., 783 F.28 at 907.
The Eleventh Circuit's contrary rule that false testimony
regarding an informal agreement by a government agent does not
invoke Giglio is also inconsistent with this Court's precedent.
The benefit offered to the witness in Napue was no more forma-
1ized or certain than the benefit offered to the witness in the
38
present case. The prosecutor told the witness in Napue that "'a
recommendation for a reduction of his ... sentence would be made
and, if possible, effectuated." Napue v. Illinois, 360 U.S. at
266. Napue makes clear that the due process clause applies to
situations other than those involving false testimony regarding
formal, unqualified agreements.
38 The Eleventh Circuit's description of the benefit offered to the
witness as "marginal" in nature does not apparently refer to the
fact that the promise was made by a police detective rather than
a prosecutor. In Williams v. Griswald, 743 F.2d 1533 L11eh Cir,
1984), the Eleventh Circuit nas recently reaffirmed its long-
standing rule, derived from this Court's decision in Pyle v.
Kansas, 317 U.S. 213 (1942), that false testimony regarding a
promise by a police officer contravenes the due process clause
Napue, as well as the circuit court catas which have
followed it, show that the informal nature of the promise to
Offie Evans is not a basis for holding the due process clause
non OR This Court should grant certiorari to resolve the
conflict in the circuits on this issue.
Relying on the fact that the jury was advised that Evans had
a prior criminal record, the Court of Appeals alternatively held
that the failure to correct his false testimony about the nature
and circumstances of the pending escape charge and the State's
promises concerning it was harmless error. That decision places
the Eleventh Circuit in conflict with the Second Circuit's ruling
in Annunziato v. Manson, 566 F.2d 410, 414 (2nd Cir. 1977), that
under Napue and Giglio, "the jury should be informed that the
witness hopes for leniency on current charges and that the
prosecution has a present leverage over the fate of the witness."
Informing jurors of a witness's past crimes does not indicate to
the jury his present motivation to lie, which is the underlying
3? A subsequent decision of the Eleventh Circuit suggests that the
"McCleskey rule is that Giglio does not apply unless there is
more than one criminal charge pending against the witness, and,
since the witness herein was facing 'a lone escape charge,' the
due process clause afforded no protection." Haber v. Wainwright,
755 F.2d 1520, 1524'n.7 (11th Cir. 1985). Of course, such a rule
is contrary to the facts and underlying purposes of Napue and
Giglio. In Napue, the witness was offered a recommendation for
Teduction of nis "lone" murder charge; a witness may obviously
have a motive to lie when promised leniency on a single charge
pending against him.
Nor is the Court's characterization of the promise as "marginal"
justified if it is meant to refer to the potential sentence that
Evans faced because of the escape charge pending against him.
That charge carried a potential sentence of 5 years imprisonment
and/or a $5,000 fine. 18% U.S.C. 8 751.
40
purpose of the Napue/Giglio line of cases. Just as the Eleventh
Circuit failed to recognize that an informal agreement with the
State can provide a witness with a motive to lie, so it failed to
recognize that under the due process clause, a jury must be
apprised of false testimony which hid from the jury chat motive
to lis. Certiorari should also be granted on this aspect of the
case.
IV.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER IMPORTANT, UNRESOLVED
QUESTIONS REGARDING HARMLESS ERROR
UNDER SANDSTROM V. MONTANTA AND
FRANCIS V. FRANKLIN
A majority of the Court of Appeals properly concluded that
the trial court's instruction on the presumption of intent in
41
this case was unconstitutional. It went on to hold, however,
that "where the State has presented overwhelming evidence of an
intentional killing and where the defendant raises a defense of
nonparticipation in the crime rather than lack of mens rea, a
A
=
Again in dissent, Chief Judge Godbold noted the critical nature
of witness Evans' testimony: "Co-defendant Wright was the only
eyewitness. He was an accomplice, thus his testimony, unless
corroborated, was insufficient [under Georgia law] to establish
that McCleskey was the triggerman.... Evans is not a minor or
incidental witness." Evans' testimony, describing what McCleskey
"confessed to him, is the corroboration for the testimony of the
only evewitness, Wright." App. A., 753 F.2d at 2907.
43 The instruction given in petitioner's trial was indistinguishable
from that found unconstitutional in Francis v. Franklin. The
instruction reads, in relevant part:
One section of our law says that the acts of a
person of sound mind and discretion are presumed
to be the product of the person's will, and a
person of sound mind and discretion is presumed
to intend the natural and probable consequences
of his acts, but both of these presumptions may
be rebutted.
App. B., 5380 F. Supp. at 384 n.21 (emphasis omitted).
Sandstrom violation on an intent instruction such as the one at
issue here is harmless beyond a reasonable doubt." App. A., 733
42
F.2d at 904.
This decision squarely raises the basic question left open
in Connecticut v. Johnson, 460 U.S. 73 (1983), Koehler v. Engle,
0.8. ,. 80 L.BEAd.24 1 7{13%84), and Francis v. Franklin,
U.S. , 53 p.8.L.W. 4495 (U.8., April 30 1985): whether
a jury charge that unconstitutionally shifts a burden of persua-
sion to the defendant on an essential element of an offense can
ever be harmless. The facts of the case present a second
question of importance and general applicability deriving from
the first: whether, if "harmless error" ever does excuse a
Sandstrom violation, it can do so where the defendant chooses to
put the prosecution to its proof on the issue of intent, without
conceding or addressing evidence directly to that issue, because
he undertakes primarily to establish a defense of nonparticipa-
tion.
Here the charge was malice murder: killing with’ the
requisite intent. McCleskey denied that he was the killer. The
prosecution sought to prove his identity as the killer by
etreonstahEisl evidence, coupled with suspect testimony from a
co-defendant and a jailhouse inmate that McCleskey had admitted
the killing to them. The victim, a police officer, was shot at
some distance after he had entered and half-crossed the floor of
a store with a robbery in progress. No cone saw the shooting. See
App. B., 380 F.Supp. at: 382.
42 Judge Johnson, writing for the dissenting judges, noted that the
facts did not support the characterization of the evidence
against petitioner as "overwhelming." No one saw the shooting;
the murder weapon was never recovered; the shooting did not occur
at pointblank range; and the officer was moving at the time of
the shooting. App. &., 753. P.24 at 318,
In this situation, the question of the killer's intent
remained very much at issue, whether McCleskey was or wasn't the
killer. The prosecutor made lengthy arguments to the jury on the
evidence regarding intent. (Trial Tr., 974-75). Defense counsel
countered with arguments that "the defense doesn't have to prove
anything to you" (Trial Tr., 909) and that the State's witnesses
were not credible. (Trial Tr., 91%," $21, 936, 938-33, 943,
948-49, 957, 952). The jury was charged -- and then, at its
request, returned for reinstruction -- on the elements of malice
murder. (Trial Tr. 1007). Its job was to decide whether each of
those elements, including intent, was established by the evidence
beyond a reasonable doubt. However, the unconstitutional
instruction deemed "harmless" by the Court of Appeals permitted
the jury to find intent without considering the evidence.
Reference to the "overwhelming" weight of the evidence as a
rest of harmless error is therefore singularly inappropriate
here. The jury might well have relied upon the presumption,
rather than the evidence, to conclude that the petitioner was
guilty of malice murder. As Justice Blackman indicated in
Connecticut v. Johnson,
[tlhe fact that the reviewing court may view
rhe evidence of intent as overwhelming is then
simply irrelevant.
460 U.S. at 86. The present case provides an excellent vehicle
for deciding whether the plurality opinion in Johnson or the
majority opinion of the Court of Appeals below states the proper
constitutional rule.
In any event, the Court of Appeals rendered its decision on
the point without the benefit of this Court's opinion in Prancis
v. Franklin, 0.8. , 53 U.S.L.W. 44958 (3.5. April 135,
1985). In Francis, the Court recognized that the jury's return
for reinstruction on the elements of malice and accident "lent
substance to the conclusion that the evidence of intent was far
from overwhelming." Id. at 4500-01. Petitioner's jury, after
approximately two hours of Zelitosracion, also asked the trial
court for further instructions on malice. The Court of Appeals
made nothing of the fact. At the very least, this Court should
accordingly grant the petition for certiorari, vacate the Court
of Appeals' decision, and remand the case for reconsideration in
light of Francis.
v.
THE COURT SHOULD GRANT CERTIORARI ON
THE ISSUES COMMON TO THIS CASE,
GRIGSBY V. MABRY, AND KEETEN V.
GARRISON
In Witherspoon v. Illinois, 391 U.S. 510, 520 n.18 (1968),
this Court reserved the question whether the exclusion for cause
of prospective jurors who could fairly decide a capital defen-
dant's guilt or innocence, solely because of their inability to
consider the death penalty, might create a "jury ... less than
neutral with respect to guilt." Since that time, after thorough
evidentiary hearings, two federal district courts have found that
such juries are in fact "guilt-prone" and unrepresentative in a
Sixth Amendment sense, and that the exclusion of such jurors at
the guilt phase of a bifurcated capital trial deprives a defen-
dant of the constitutional rights to a fair jury and one drawn
from a representative cross-section of the community. See
Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983); Reeten v.
Garrison, 578 F. Supp. 1164 (W.D.N.C. 1984). The Grigsby case
was affirmed by the Eighth Circuit en banc. Grigsby v. Mabry,
788 P.324 226 (8th Cir. 1983) (en bhancy. The Keeten case was
reversed by a panel of the Fourth Circuit, Reeten v. Garrison,
742 P.28 129 (4ch Cir. 1984), and a certiorari petition to review
the latter decision has been filed, O.T. 1984, No. 84-5187.
In its decision below, the Eleventh Circuit aligned itself
with the Fourth Circuit's holding in Reeten and opposed itself to
the Eighth Circuit's holding in Grigsby. This Court should grant
certiorari to settle the conflict among the circuits
CONCLUSION
The petition for certiorari should be granted.
Dated: May 28, 1985. Respectfully submitted,
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
| * JOEN CHARLES BOGER
: DEVAL L. PATRICK
.99 Hudson Street
New York, New York 10013
(212) 219-1900
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washingtcn 98104 ANTHONY G. AMSTERDAM
New York University
School of Law
40 Washington Square South
New York, New York 10012
* ATTORNEY OF RECORD ATTORNEYS FOR PETITIONER
Co Allie
CE Charles eh
|
|
|
CERTIFICATE OF SERVICE
I hereby certify that I am attorney of record for petitioner’
Warren McCleskey, and that I served the annexed Petitioner for
Certiorari and Motion for Leave to Proceed In Forma Pauperis on
respondent by placing copies in the United States mail, first
class mail, postage prepaid, addressed as follows:
Mary Beth Westmoreland, Esq.
Assistant Attorney General
132 State Judicial Building
| 40 Capitol Square, S.W.
Atlanta, Georgia 30334
All parties require to be: served have Been served.
Done this 28 day of May, 1985. Ln Bon
OHEN CHARLES BOGER
| * COUNSEL OF
No. 84-—-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
WARREN McCLESKEY,
Petitioner,
-against-
RALPH M. REMP, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent,
PETITION POR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
* JOHN CHARLES BOGER
DEVAL L. PATRICK
99 Hudson Street
New York, New York 10013
$212) 213-1900
ROBERT H. STROUP :
1515 Bealey Building
Atlanta, Georgia 30303
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 958104
ANTHONY CG. AMSTERDAM
New York University
School of Law
40 Washington Square South
New York, New York 10012
RECORD ATTORNEYS FOR PETITIONER
QUESTIONS PRESENTED
{ Is proof of specific intent or motive to discriminate a
necessary element of an Eighth Amendment claim that a State has
applied its capital statutes in an arbitrary, capricious, and
discriminatory pattern?
2, To make out a prima facie case under the Fourteenth
Amendment, must a capital inmate alleging discrimination in a
State's application of its capital statutes present statistical
evidence "so strong as to permit no inference other than that the
results are a product of racially discriminatory intent or
purpose?” |
3. Does a proven disparity in the imposition of capital:
sentences, reflecting a systematic bias of death-sentencing
outcomes against black defendants and those whose victims are
white, offend the Eighth and Fourteenth Amendments irrespective
of its magnitude?
4. Does a 20-point racial disparity in death-sentencing
rates among that class of cases in which a death sentence is a
serious possibility so undermine.the evenhandedness of a capita
sentencing system as to violate the Eighth or Fourteenth Amend-
ment rights of a death-sentenced black defendant in that class of
5+ Must a capital defendant proffer evidence sufficient to
prove that he was personally discriminated against because of nis
race in order to obtain an evidentiary hearing on allegations
that he has been subjected to a State death-sentencing statute
administered in an arbitrary or racially discriminatory manner?
|
6. Does the prosecution's failure to correct or reveal the
false testimony of a key State's witness regarding an "informal"
promise of favorable treatment made to the witness by a police
detective violate the due process principles of Giglio v. United
States? If so, can such a violation be harmless error when no
other evidence informed the jury of the witness' motivation to
testify favorably for the State?
7 Was the trial court's instruction to the jury on the
element of intent -- an instruction virtually identical to the
one condemned in Francis v. Franklin, U.S. tr 33 U.S.L.We.
4495 (U.S. April 30, 1985) ~~ harmless error beyond a reasonable
doubt?
3. Did the State's exclusion for cause of two prospective
jurors who could fairly have determined petitioner's guilt or
innocence, solely because their attitudes toward capital punish-
ment would have prevented them from serving fairly at the penalty
phase, violate petitioner's Sixth, Eighth or Fourteenth Amendment
rights to an impartial jury and to a jury selected from a
representative cross-section of the community?
- i
| TABLE OF CONTENTS
Page
I
QUESTIONS PRESENTED PTI SY a RR TE TE ae STW RE ne EE Be SE LL a Sh i RB SR i
CITATIONS TO OPINIONS BELOW GC § 4 9 6. 5 0:0 8 9.055 0605.05.00 0.09 9% 909 09 1
JURISDICTION AEE
NT RE BR I TINO Ba Cher 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 2
STATEMENT OF THE CASE ttt tev ese eccsssrsesssscccssasnsnsnnses 2
A. Racial Discrimination And Arbitrari-
ness S000 6 9044 0080880000408 5609 99549909.094994999330
2
i. The Historical Seftfing ceiver ececsnsvenes 2
2. Race And The Death Penalty «eee ececscens 11
3. Petitioner's Record Evidence:
The Baldus Studies ..ceevecresccrsnroree i5
4, The Opinion of the Court of
Appeals 2 9 090 8. 80 8 9 880 0 TOW SIS OO VI SSeS 27
B. Petitioner's Giglio Claim .scevvvvessvnernene 34
C. Petitioner's Claim Under Sandstrom v.
Montana and Francis v. Franklin ....cic000000 36
D. Petitioner's Death-Qualification
Claim PAVE EB WY SET Te WE Br ER A EE SES SE PE a BE BE SE GR SR TE Sint 37
HOW THE FEDERAL QUESTIONS WERE RAISED AND
DECIDED BELOW MAE TE IR NT IR PE ENE ER 37
REASONS FOR GRANTING THE WRIT (cess cecsnsessossossscsannse 40
I. The Court Should Grant Certiorari To
Consider Whether A Condemned Inmate
Who Can Demonstrate Systematic Racial
| Differences In Capital Sentencing Out-
| comes Must Also Prove Specific Intent
or Purpose To Discriminate In Order To
Establish An Eighth Amendment Viclation .......... 43
| II. The Court Should Grant Certiorari To
Consider Whether The Extraordinary
Standard of Proof Imposed By The Court
| of Appeals In Cases Involving Statis-
tical Evidence of Discrimination In
| Capital Sentencing Conflicts With Prior
H Decisions Of This Court Or Those Of
Other Circuits PY SE Ln NL Wh oy oe SU EY EF NE GE BE TE UN Mie MS he ER Se GE Sh S0 hn BE SE Sb AR SB 46
| III. The Court Should Grant Certiorari To
| Review The Court Of Appeals' Holding
That The State's Nondisclosure Of An
Informal Promise Of Favored Treatment
Does Not Implicate The Due Process
| Requirement Of Giglio v. United States .....¢... 50
| - iii -
|
Page
IV. The Court Should Grant Certiorari To
Consider Important, Unresolved Ques-
tions Regarding Harmless Error Under
Sandstrom v. Montana And Francis v. ;
PL ENIR IIT: « colin senisessrsetesssseessserssssssstsseee 54
v. The Court Should Grant Certiorari On
The Issues Common To This Case, Grigsby
v. Mabry and Keeten v. Garrison ....ceeveeccncsccss 57
CONCLUSION PRESTR Ne ER PI ee SE BR RE WE Sr BC Sh oC A BE RE EE EO FR a SEE A de 58
- APPENDICES
Appendix A - Opinion of the United States
Court of Appeals for the Ele-
venth Circuit in McCleskey vv.
Kemp, 753 P.26 877 {11th (ir,
1985) (en banc), entered
January 29, 1985
Appendix B - Opinion of the United States’
District Court for the Northern
District of Georgia, Atlanta
Division, in McCleskey v. Zant,
580 F. Supp. 338 (N.D. Ga. 1934),
entered February 1, 1984
Appendix C - Order denying rehearing,
entered March 26, 1985 Appendix D - Statutory Provisions Involved
0)
| | Appendix Statement of Facts From Peti-
tioner's Post-Hearing Memoran-
dum of Law in Support of His
| Claims of Arbitrariness and
| Racial Discrimination, sub-
mitted to the District Court
in McCleskey wv. Zant, 580
| F. Bupp., 338 A{N.D. Ga. 1984);
: and Statement of Facts from
| En Banc Brief for Petitioner
McCleskey, submitted to the
Court of Appeals in McCleskey
| Vv. Kemp, 753 F.2& 877 {71th
Cir. 1985) (en banc)
TABLE OF AUTHORITIES
Cases : Page
Annunziato v. Manson, 566 F.2d 410 (24 Cir.
1977) 3.0.9 0.00.0 889 I UES 008 9.509849 9409390800 S$. 9.0 5.0 5°90 09 9504s 53
Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 2582 13977) saves ais inion « :38,46,47
|| Avery Vv. Georgia, 3450.8. 5588. (1353) sessssrusvrvennevs 10
Back v. Alabama, 447 U.S. 625 (1980) ..... aire einen nines «5 44
Blanton v. Blackburn, 494 F. Supp. 895 (M.D.
La. 1980), =2f£'d, 654 P.24 719.{5¢h Cir,
ORit B 1080) weer veenvrenssesssevessnsvnsevnns esis ane 53
Boone v. Paderick, 541 F.2d 447 (4th Cir. :
1976) ® @ & 0° © 2 5 3 RCN Er RT a of a BE Te HL RT NE LL EE CHE Se Sn Ee te Se i TR Gn 51
Campbell v. Reed, 594 F.2d 4 (4th Cir, 1970) vans rvennns 51
Castaneda Vv, Pactida, 430 U.8. 482 {1877} ccoeserarvens 47
Coble v. Hot Springs School District No. 6,
682 F.,28 7271 {Stn Cir. 1982) ivevsnnnssnsnone TONNE TN 47
Connecticut v. Johnson, 460 U.S. 73 (1983) ...oseenns ERR 55,56
Downer v. Dunaway, 1 F. Supp. 1001 (M.D.
G8, 3832) vss servis GR CURE MT Lo NO tae ras sisvine 10
puBose v. Lefebre, 619 F.2d 973 (24 Cir.
BOBO) celine cnrin ons viele ER ERC EO NER PR TSE LA 3)
Eastland v. TVA, 704 F.2d 613 (11th Cir.
1983) uuu snl de inden s srg mire we ey ; nah ee vo 48
Eddings v. Oklahoma, 455 U.S. 104 (1982) ...ceerecennnn 44
EEOC v. Ball Corp., 661 F.2d 531 (6th Cir,
FOBT) Gases sinus ve swleinias sa mne Ble ait vw sins vuln ATER 47
EEOC v. Federal Reserve Bank of Richmond, E08 Food £33 (AEH Cire 1983) ive e unin anirsitnnsns 47
| Franklin v. Francis, 720 F.2d 1206 (11th
| Cire T8883) .vrivinn Cal OT Tg Pp RTI RE 39
| Francis v. Franklin, 0.8. /i.53
| D8. A 340% {0.8 Bri lL 307 T3585) sree ihieyrensi 39,54,55,56
| Furman v. Georgia, 408 U.S. 238 (1372) cress svtevsssene ¥2,13,38
| 41,43,44,45
|| Furnco Construction Corp. v. Watars,
4 4380.8 .8587, 11978) venneessevnas WI EE TT GEE 49
l Giglio v. United States, 405 U.S. 130
1 {F972) ema ninvns divine win sive vs hai wie leet ua a aie ee 39,59,52
| Godfrey v. Georgia, 446 U.S. 420 (1980) ......evuvnvnnn 14,44
|
|
| Gregg v. Georgia, 428 U.S. 153 (1976) ...... NTN Ver 12,13,38
41,44,45
Cases : Page
Grigsby v. Mabry, 758 F.28 226 (8th Cir.
1985) ‘(en DANC) seein rise nin sw Hin GEREN RE SE lieve 57
Grigsby v. Mabry, 569 F. Supp. 1273 (E.D.
Ark. TOBY seve sna thse ofenn vii i ie iars wie atarelecslsy aiale 6 Pale 40,57
Haber v. Wainwright, 756 F.2d 1320 (11th
Cir RhI08B) ve cee sdrssmrsrsveesntdnsssivnsesvenns aie ok 53
Hazelwood School District v. United States,
433 g.S5. 299 {1977) PG BE Lr TE a a ae Th A RE TE ae HE et BE BR TR gE ML EE RB oF. U6 U6 Sih J 47
Hunter v. Underwood, C.8. 53
US.L. HW. 4468 (0.5. April 18, 71985) svessveteernennss 46,47
International Brotherhcod of Teamsters v.
United States, 4371 U.8. 324 (1977) eesvsvtevsnses ‘hie 49
Jones v. Georgia, 389 U.S. 25 (1967) eevee sererncnnsnns 11
Keeten v. Garrison, 742 F.2d 129 (4th Cir.
1984) SE PE a Lr Rh 1 ck 57
| Keeten v., Garrison, 578 F. Supp. 1164
| (HO N.Cus 1984) ‘wvvedonsnvnsrsnnnives ow x vin ui FRM 40,57
|
| Koehler v. Engle, u.s. r 80 L.EQ,
| 28 1 (1984) 39ers ey oe 9° & 2 4 0 9° EE YON ETRE ED EN 55
| Lockett v. Ohio, 438 U.S. 586 (1978) .......... gli die A 44
|
| Mayor of Philadelphia v. Educational
1] Equality League, 415 U.S. 605 ip VE TE MEER SERENE EE 47
McCleskey v. Kemp, 753 F.2d 877 (11th Cir. ‘
1985) (en DANC) ses evecsves RII Ee IE SEP TO A PE passim
| McCleskey v. Zant, 580 PF. Supp. 338
1 (8.0.68. 1934)... evry PS iy FN DIENER Ve dss Fant passim
| Napue v. Illinois, 360 U.S. 264 (1959) ...ieevnnnnnnnns 50,52
| plessy v. Ferguson, 163 U.S, 537 (1896) ...eevvn. aie 9,43
Pyle v. Kansas, 317 U.S. 213 (18423 canara ners taverns 52
| Reece v. Georgia, 330 U.5. 85 {(1955) veveesss tne eee ae 11
| Rose v. Mitchell, 443 U.S. 545 (1979) ..evvvrrnrnvnenns 11
| Sandstrom v. Montana, 442 U.S. 510 (1979) ...eeeeninnnn 54
1 Scott v. Sandford, 50 U.S. (19 How.)
{1B37) wuvinnnvervenns re sisi rv ve re rials alee eis 2,3,43
Ww
QO
Ww
| Screws v. United States, 325 U.S5. 91
1 ( 3
| segar v. Smith, 738 F.2d 1249 (D.C.
Cin. 1984) 2 ® 9 2 2 8 8 0° 0 O 4 4% ¢ © 5 0 0 Oe 0» ® 8 © 5 9 ° 4 8 2 BD 2 0 0 8 0 P00 48,49
| sims v. Georgia, 389 U.S. 404 (1967) ...evvvrvnrrnnnans 11
Hi
| - Vi -
{
{
|
3
|
|
| i
|
|
|
1
1
|
{ |
Cases
Slaughter House Cases, 83 U.S. (16 wall.)
38 (1873) wuss enns ae vb wy oC ainriniaite Siuia wine Wainy vr salen.
Smith v. Balkcom, 671 F.2d 858 (5th Cir,
Unit B 18982) ® © © © ®@ © 9° 5 ° 85 © 5 6 5 0° 2 O° 2 0 0 ® ® & 9 e & 4 0 5 9 2 2 s 9% 0 0
Smith v. Balkcom, 660 F.2d 573 (5th Cir.
Unit B 1981) RE ER a ET A A EE a
Strauder v. West Virginia, 100 U.S. 303
(1886) PATI ETT TE RE ED RR Ta Re TNS ME aR Sh a A FR Sa Oh BR IR 0 i ih i 6 ET i
Sullivan v. Wainwright, g.s, ’
HS LB. 20 210 {1983) cess vsrsansasssrssvsvrrsiensne
Texas Dep't of Community Affairs v. Burdine,
450 U.S, 248 [19871) ‘vest srecrnnsasnanssnivnssnssseone
Tucker v. Francis, 723 F.2d 1504 (11th Cir.
1984) NE ER EP rT re Tr eR EE EE LR
Turner v. Fouche, 396 U.S. 3456 {19370) cesses svsvses weieiie
United States v. Bigeleisen, 625 F.2d 203
(BR Cir. 1980) cevoveves sven I I NI
1
United States wv. Butler, 567 F.2d 885 (9th
Cirs O78) es cervetssissrssviesssser
sssssssssassovsnsnses
University of California Regents v. Bakke,
238 U.S, 265 {3978) ecevvavsvsinnnsy NN NE LP ap
Vuyanich v. Republic Nat'l Bank, 505 F.
Supp. 224 (N.D, Tex. 1980), vacated on
other grounds, 723 F,24 119% (5th Cir.
FIBE) 4e nec ccvossstinssmibessstvesssmes sais ins rs vies er
Wainwright v. Adams, 0.8, ; 80
L.E@.23 809 (1984) tuvervsrrsersenersodionsnnne Eg
Wainwright v. Ford, U.S. y +82
a —
BEA 28 OF Lb 108AT «avila etree ster ain any vt hk Meri esas
Washington v. Davis, 426 U.S. 229 (1976) .vvivsnvsansns
Whitus v. Georgia, 38% UiS. 545 (1967) ceevsvrsrvsnnssns
Wilkins v. University of Houston, 654
P.2d4 388 (5th Cir. 1981), vacated
and remanded on other grounds, 459
GeSe. B09 (1982) viasssnsesvines vonsss Folia a anit 2 vw oie "a
williams v, Georgia, 349. U.S5,™M3758 (1955) sescsstsasssns
williams v. Griswald, «743 F.28. 1533 {11th
CirviulSB84) «ess vrnsnsscenensoes hrs eRe RGEC
Witherspoon v., Illinois, 3971 U.8. 510 (1968) cuvsanvrsns
Wolfe v. Georgia Ry. & Elec. Co., 2 Ga.
APD. 499, 38 S.E. 899 (1307) srsrrearvrrvanssivnssrarss
- vii -
40
32
31
5]
51
48,49
Cases. «5 Page
Woodson v. North Carolina, 428 U.S. 280
(1976) 9.9.0°9.9.9,8.4.0.9:9 9'3°0.9% 3%. a © 8 5 4 9% » 2 ® ® 9 5 & 9% 2 6 ° 8 » 2 » @ 9 oo 5 9 44
Yick Wo v. Hopkins, 118 U.S. 356 (18386) ....... Pre PE 14
Zant 7. Stephens [II], 462 U.S. 862 01983) sires ven oe 15
Zant v. Stephens [I], 456 U.s. 410 (1982)
| (per curiam) ..veeseevtscnensnneess Cates simran En 14
Statutes
EE Nh NU SN I IO PNR 53
28 TIE. Cu S TIALLY "ininin wns vr ain'ninia s sles AR TL RE a 2
Ga, Cote ARAL § 737-3534, TIBIU2Y: veins snssnsrrssvreves 25
FOrnsr Gas Code 5 77-0904 L1980) sults sess Pures rinn ens ate
The Code of the State of Georgia
{R, Clark, 7. Cobb & D., Irwin,
compilers 1861) RENTER NS Ea TI SONI Sara Sg IE 4
Emancipation Proclamation, 12 Stat.
1267, Jan. § 1863 00 8 40 8 60 99089099 99000 se 08 93:08 42 5
Other Authorities
D. Baldus & J. Cole, Statistical Proof
of Discrimination (1980) «vveeses SPEIER. CBD 16
| Bickel, The Original Understanding and
the Segregation Decision, 69 Harv. L.
Rev. 1 (1956) ® # 9 © 9% & 3 O° 0° ® 9% 6 © 5 8 9° 4 0 0 0° 9 > ? 6 6 & 6 5 9 5 0 sO 9D * * 9 7
W. Bowers, Legal Homicide: Death as
Punishment in America 1864-1982 (1984) ...sevvaesvsen 12
| Bowers & Pierce, Arbitrariness and Dis-
crimination under Post-Furman Capital
| Statutes, 26 Crime & Deling. 563 (1980) coca ee.nn ie 12
| Colonial Records of Georgia (A. Candler,
8d, 100A) i, ides rrr ar vari res ers ee a re. 4
D. Fehrenbacher, The Dred Scott Case: Its
Significance in American Law & Politics (1978) 30 9 0°49 0 0 ¢ 5 6 8 06 9 0 89.0 ¢ 8 v9" ® © 8 9% 8 » 6 3 4 0 0 0.4% 0 2:0. 0 8 0 9 4
x
| Fleming, Documentary History of Recon-
1 EruoLion (1806) cert vrsvssnnnismrsviessssresrsea ava in x . 7
ii J. Franklin, The Emancipation Proclamation
IB!
-
| (1983) vars viomevsionsinns ain’ ite veins sieinPah is tininie sine ota e 5
[
¥
| Garfinkel, Research Note on Inter- and
| Iintra-Racial Homicides, 27 Social
| Porces 369 (4949) ..ievviires tian ees oni sia en 45s i 12
|
|
|
Other Authorities Page
L. Higginbotham, Jr., In The Matter of
Color: Race & The American Legal Process
(1978) 6.0000 3 0.8 60 50.6 3:00 03 4.0:9. 800 08.0.9.04099 940660480 49440.03929%9 4
J. Hurd, The Law of Freedom and Bondage
in the United States (Vol. I. 1858;
Vol. II, 1862) PICT or Br HE WT a 1 er RE NE NR BL aR TE Se Be Bn TR bh SE SR GE Uh oe JE PEN a at 3
F. Johnson, The Development of State
Legislation Concerning the Free Negro
(1958) EE ET EE a CR Rr WE WE A WT TE TR RT FE OE BT Td ee 8 dh i Bl i He 7
Johnson, The Negro and Crime, 217 Annals
8 1047) adver nssnrssvssnrvisse dren drnansseva snes 12
L. Litwack, Been In the Storm So Long:
The Aftermath of Slavery (1979) ieee seesesssoccscncs 6
| J. McPerson, History of the Reconstruction
£1971) 5.0.5.9 09.6% 058.0950 0.990608 5400805 1.4060649 5898 %5.093392309 7
G. Myrdal, An American Dilemma: The
Negro Problem &_ Modern Democracy {3944) weunsvesnsen 10
N. YZ. Times, July 27, 1946 OB 0.0 65.50.0090 95099 85.0980 0489.09 489» 10
Radelet, Racial Characteristics and the
Imposition of the Death Penalty, 46
Am, SOC. RaV., 918 (1987) eosvessenssssrssenssinnssnns 12
F. Raper, The Tragedy of Lynching (1933) «.teveveecnnn 10
Report of the Joint Committee on Recon-
struction, 39 Cong., 1st Sess., Part
i (1867) PP PPE IR eR Sr BT BE Te TE TE SR TE LT a SE ER OE AEE Sh Si Sd 6
B. Schwartz, Statutory History of the
United States - Civil Rights (1960) «ieee ecanesonenn 5
XK. Stampp, The Peculiar Institution:
Slavery in the Ante-Bellum South
(1956) G34 0600000080 0068084.00.406030 88,0 0093.59503909839309939%9
3:5 States' Laws on Race and Color (P. Murray
| ed. 1950) EAE EY Na NE RR PU PERN TR RT Ge PE EE he 9
J. tenBroek, Equal Under Law (1963) .eceererecnnccaneen : 7
United States Dept. of Justice, Bureau of
Prisons, National Prisoner Statistics,
No. 46, Capital Punishment 1930-1570
(AUG. FOTT) sprsvvnsevsserrsvsvnessssssstsrrssnsenss 1
T. Wilson, The Black Codes of the South
(1965) B00 8 410 2 0 008 2 4.990 08 0888 ve uses 0989904909 i
wolfgang & Riedel, Race, Judicial Discre-
tion and the Death Penalty, 407 Annals
119 (May 3973) ® ¢ 5 © 6 5. © 3 9 5 5 OS 9 SS 9 ® © 9% 3 9 9 4 9% 6 8 2 23 8 0° 12
| Wolfgang & Riedel, Rape, Race, and the
Death Penalty in Georgia, 45 Am. J.
I Orthopsychiat, 658 (7975) sess ssnssnsenvssvsnnses ‘ 12
|| Zeisel, Race Bias in the Administration of
| the Death Penalty: The Florida Experience,
95 Harv. L. Rev. 456 (1981) 0.0 0 0 5.0 098 9 SS 40 3 O09 9 9 9 3 —
no
- LX
No. 84-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
WARREN McCLESKEY,
Petitioner,
-against-
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent,
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Petitioner Warren McCleskey respectfully prays that a writ
of certiorari issue to review the judgment of the United States
Court of Appeals for the Eleventh Circuit in this case.
CITATIONS TO OPINIONS BELOW
The majority, concurring, and dissenting opinions in the
United States Court of Appeals for the Eleventh Circuit en banc,
which are officially reported at 753 F.2d 877 (11th Cir. 1985),
are annexed as Appendix A.
The opinion of the United States District Court for the
| Northern District of Georgia, Atlanta Division, which is offi-
cially reported at 580 F. Supp. 338 (K.D. Ga. 1384), is annexed
The judgment of the Court of Appeals was entered on January
29, 1985. A timely motion for rehearing was denied on March 26,
1985. A copy of the order denying rehearing is annexed as
Appendix C. The jurisdiction of this Court is invoked pursuant to
28.0.5.C. § 1254(] ) .
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
This case involves the Sixth Amendment to the Constitution
of the United States, which provides in relevant part:
In all criminal prosecutions,
shall enjoy the right to a
impartial jury;
the accused
trial, by an
the Eighth Amendment to the Constitution of the United States,
which provides in relevant part:
[shall]
inflicted;
[N]or cruel and unusual
[be]
punishments
and the Fourteenth Amendment to the Constitution of the United
States, which provides in relevant part:
[N]Jor shall any State deprive any person of
life, liberty, or property without due process
of law; nor deny to any person within its
jurisdiction the -equal protection of the
laws.
The case also involves the following statutory provisions,
the texts of which are set forth in Appendix D: Former Ga. Code
Ann. §§ 26-603; 26-604; 26-1101; 59-806(4); 59-807.
STATEMENT OF THE CASE
A. Racial Discrimination and Arbitrariness
i. The Historical Setting
For the First two hundred and fifty years of our celonial |
|
1
and national experience, black persons, as Chief Justice Taney
confessed in the Dred Scott case, were "regarded as being of an
inferior order; and altogether unfit tc assoclate with the white
race, elther in soclal or political relations; and so far
inferior, that they had no rights which the white man was bound
to accept ... This opinion was at that time fixed and universal
in the civilized portion of the white race. It was regarded as
an axiom in morals as well as in politics, which no one thought
of disputing, or supposed to be open to dispute; and men in every
grade and position in society daily and habitually acted upon it
in their private pursuits, as well as in matters of public
concern, without doubting for a moment the correctness of this
opinion." Scott v. Sandford, 60 U.S. (19 Bow.) 393, 407 (1857).
This radical judgment about the relative worth of black and
white lives found its way deep into the fabric, not only of the
national mind, but of the criminal law. Well before the Civil
War, mos t of the Southern States had promulgated separate "slave
codes" that harshly regulated the criminal and civil conduct of
1 ‘
black persons. Although the colonv of Georgia, for example p. gS pie,
initially banned the importation of blacks and forbade their use
See generally J. Hurd, The Law of Freedom and Bondage in the
Jnited states (vol. I, 1858; Vol. II, 1862). See also K. Stampp,
The Peculiar Institution: Slavery in the Ante-Bellum South
306-37 (1956). 1c. at 210:
State criminal codes dealt more severely wit!
slaves and free Negroes than with whites. In
the first place, they made certain acts felonies
when committed by Negroes but not when committed
by whites; and in the second place, they
assigned heavier penalties to Negroes than
whites convicted of the same offense. Every
southern state defined a substantial number of
felonies carrying capital punishment for slaves
and lesser punishments for whites. In addition
to murder of any degree, slaves received tne
death penalty for attempted murder, manslaugh-
ter, rape and attempted rape upon a white woman,
rebellion and attempted rebellion, poisoning,
robbery, and arson. A battery upon a white
person might also carry a sentence of deatn
under certain circumstances.
1d. at 210.
2 3
as slaves, it had by 1750 accepted slavery as an institution;
‘and by the time of the Civil War it had adopted penal laws that
prescribed different sanctions for criminal offenders depending
upon their race and the race of their victim:
For instance, conviction of raping a white
woman, which meant a prison sentence of two to
twenty vears for a white offender, carried a
mandatory death penalty for Negro offenders.
Even attempted rape of a white woman by a
black man could be punished with death, at the
discretion of the court. On the other hand,
rape of a slave or a free Negro by a white man
was punishable 'by fine and jmpriscnment, at
the discretion of the court.’
D. Pehrenbacher, The Dred Scott Case: ts Significance in
American Law & Politics 31 (1878). Sse
SLate Of Georgia (RB. crark, T. Cobb's D. Irwin, compllers 1881).
Professor Fehrenbacher notes that murder of a slave by a white
was, throughout this period, subject to relatively minor punish-
ment under most state statutes:
generally The Code of the
2 1 Colonial Records of Georgia (A. Candler, ed.) 49-32 (1904),
cited in A.L. Higginbotham, Jr., In The Matter Of Color: Race &
The American Legal Process: The Colonial Period 216-27, 439 n.2
| (1978).
| 3 1 Colonial Records of Georgia 56-82 (A. Chandler, ed. 1904).
| 4
|
|
Under colonial law, the killing of a slave in
the course of chastisement or in a fit of
passion was a minor offense at most and seldom
! punished. Even for willful, malicious homicide
the prescribed penalty was ordinarily no more
than a fine. Beginning with a North Carolina
Law of 1774, all of the slaveholding states
eventually imposed death as the punishment for
deliberate murder of a slave./... Non-fatal
abuse of slaves was occasionally punished under
the common law of the general criminal code, and
by the 1850s most states provided statutory
protection of some kind. T Gecrgia Code of
1861, for instance, defined ive whipping
and various other crueltie demeanors,
punishable by fine or im nt at the
} discretion of the court....
Be
Fehrenacher, supra, note 4 at 34-35.
These racial Sissinoions could work to the advantage of
black defendants, so long as their victims were also black. As
Professor Stampp explains "[a] slave accused of committing
violence upon another slave, rather than upon a white, had a
better chance for a fair trial. Here the deeper issues of
discipline and racial subordination were not involved, and the
court could hear the case calmly and decide it on its merits.
Moreover, the penalty on conviction was usually relatively light.
Slaves were capitally punished for the murder of other slaves
almost as rarely as whites were capitally punished for the murder
of HER
One obvious aim of the- national government in the Civil War,
articulated in the Emancipation TA Ee and subsequently
embodied in the Thirteenth A was to end the legal
subordination of blacks in slavery. Yet the close of the Civil
War brought no immediate halt to the widespread Southern pattern
; 8
of disregard for black life, or to the disparity in legal
XK. Stampp, supra note 1, at 227.
12 Stat. 1267, Jan. 1, 1863. See J. Franklin, The Emancipation
roclamation (1963).
7 Slaughter House Cases, 83 U.S. (16 Wall.) 36, 67-69 (1873). See
T B. Schwartz, oscatutory History of the United States -- Civil
Rights 25-96 (13960).
8
After his exhaustive review of contemporary news accounts,
diaries, and other primary Reconstruction sources, Professor Leon
Litwack summarizes his findings on extra-legal violence as
follows:
How many black men and woman were beaten,
flogged, mutilated and murdered in the "£lrst
year of emancipation will never be Xnown. ...
Reporting con 'outrages' committed in Kentucky, a
(Freedmen's] Bureauofficial confined himself to
several counties and only to those cases in
which he had sworn testimony, the names of the
injured, the names of the alleged offenders, and
the dates and localities.
'I have classified these outrages as follows:
Twenty-three cases of severe and inhuman beating
znd whipping of men; four of beating and
shooting; two of robbing and shooting; three of
robbing; five men shot and killed; two shot and
treatment of those black and white defendants actually brought
before the courts. The persisting disparity resulted both from a
: 9
practical inability to sentence whites for crimes against blacks
wounded; four beaten to death; one beaten and
roasted; three women assaulted and ravished;
four women beaten; two women tied up and whipped
until insensible; two men and their families
beaten and driven from their homes, and their
property destroyed; two instances of burning of
dwellings, and one of the inmates shot.’
Because of the difficulty in obtaining evidence
and testimony, the officer stressed that his
report included only a portion of the crimes
against freedmen. 'White men, however friendly
to the freedmen, dislike to make depositions in
those cases for fear of personal violence. The
same reason influences the black =-- he is
fearful, timid and trembling. He knows that
since he has been a freedman he has not, up to
this time, had the protection of either the
federal or state authorities; that there is no
way to enforce his rights or redress his
wrongs."
ola Litwack, Been In The Storm So Long: The Aftermath Of Slavery
276-77 (1979) quoting 3 Report Of the Joint Committee on Recon-
struction, 39 Cong., 1st Sess., Part III, at 146 (1867),
| professor Litwack observes that "the infrequency with which
whites were apprehended, tried and convicted of crimes against
freedmen made a mockery of equal justice." L. Litwack, supra
note 8, at 285. Moreover, the disparate penal sanctions imposed
against those few whites who were apprehended for interracial
| crime were in some ways the most striking feature of the post-war
criminal justice system:
The double standard of white justice was nowhere
clearer, in fact, than in the disparate punish-
ments meted out to whites and blacks convicted |
of similar crimes ...: [A] Freedmen's Bureau
| officer in Georgia despaired of any early or
mass conversion to [the] ... principle ... that
killing a black person amcunted to murder ...
| 'The best men in the State admit that no jury
§ would convict a white man for killing a freed-
i man, or fail to hang a negro who had killed a
| white man in self defense.’
1
|| : 2
Hl L. Litwack, supra note 8, 285-36.
and from the operation of statutes that explicitly made the
severity of punishment dependent upon racial factors. Indeed,
shortly after the war, harsh "glack Codes" were enacted by
Georgia and other Southern states that retained traditional
differences in punishment for crimes based upon the race of the
10
defendant and the race of the victim.
It was in large measure this resurgence of both lawlessness
and legally sanctioned discriminatory treatment of blacks
throughout the South that led to the enactment of the Civil
11 12
Rights Act of 1866 and, ultimately, the Fourteenth Amendment.
This Court has since recognized that one principal goal of the
Fourteenth Amendment was to prohibit differential treatment under
State penal law:
The 14th Amendment was framed and adopted ...
to assure to the colored race the enjoyment of
all the civil rights thatiunder the law are
enjoyed by white persons, and to give to that
race the protection of the General Government,
in that enjoyment whenever it should be denied
by the States. It not only gave citizenship
and the privileges of citizenship to persons
of color, but it denied to any State power tO
10 Slaughter House Cases, supra, 83 U.S. {16 Wall,) at 70-71. See
generally T. Wilson, The Black Codes of the South (1965); F.
Johnson, The Development of State Legislation Concerning the Free
Negro (1958).
11 ? = ' $s 2
See goers ally 1 Fleming, Documentary History of Reconstruction
593-312 (1906); J. McPherson, History of the Reconstruction 29-44
$1971). See also Bickel, The Original Understanding and the
Segregation Decision, 59 Harv. L. Rev. 7, 11-12, 56-58 (7338),
withhold from them the equal protection of the
laws, and authorized Congress tO enforce its
provision by appropriate legislation. To
quote the language used by us in the Slaugh-
ter-House Cages, 'No one can fail to be
impressed with the one vervading purpose found
in all the Amendments, lying at the foundation
of each, and without which none of them would
have been suggested; we mean the freedom of
the slave race, the security and firm esta-
blishment of that freedom, and the protection
of the newly made freeman and citizen from the
oppressions of those who had formerly exer-
cised unlimited dominion over them.’ So
again: 'The existence of laws in the States,
where the newly emancipated negroes resided,
which discriminated with gross injustice and
hardship against them as a class, was the evil
to be remedied, and by it [the 14th Amendment]
such laws were forbidden.’
If this is the spirit and meaning of the
Amendment, whether it means more or not, it is
to be construed liberally, to carry out the
purposes of its framers. It ordains that no
State shall make or enforce any laws which
shall abridge the privileges or immunities of
citizens of the United States (evidently
referring to the newly made citizes, who,
being citizens of the United States, are
declared to be also citizens of the State in
which they reside). It ordains that no State
shall deprive any person of life, liberty or
property, without due process of law, or deny
to any person within its darisdiction the
equal protection of the laws. What 1s this
but declaring that the law in the States shall
be the same for the black as for the white:
that all persons whether colored Or white,
shall stand equal before the laws of the
States, and, in regard to the colored race,
for whose protection the Amendment was
primarily designed, that no discrimination
shall be made against them by law because of
their color?
Strauder v. West Virginia, 100 U.S. 303, 306-07 (1386).
Despite these federal constitutional and leg
efforts, de jure discrimination in state criminal s
although outlawed by the Fourteenth Amendment,
plague the administration of justice, especially in
$n}
“nie
states. The cli: b= ate of public sentiment in which
continued
islative
tatutes,
to
discrimination persisted was given judicial notice by the Georgia
Court of Appeals in 1907, in a case upholding a cause of action
in .tort for calling a white man black:
It is a matter of common knowledge that,
viewed from a social standpoint, the negro
race is, in mind and morals, inferior to the
Caucasian. The record of each from the dawn
of historic time denies equality ... We take
judicial notice of an intrinsic difference
between the two races ... Courts and jurles
are bound to notice the intrinsic difference
Detween the whites and blacks in this
country.
Wolfe v. Georgia Ry, & Elec, Co., 2 Ga. App. 499, __ _ 1 58 S.P.
899, 901-02 (1907) (emphasis ited)
These discriminatory views, needless to say, fostered a body
of law in the State of Georgia and elsewhere intensely hostile to
black people. In addition to a conpiehensive code of civil law
designed to segregate the races in most areas of public lta. 2
there was widespread disregard within the criminal justice system
1 3 hy - : 3 3 : L
See generally University of Californla Regents v. Bakke, 438 U.S.
265, 390-94 (1978) (opinion of Marsnall, J.Y.: Cf. .Plessy v.
Ferguson, 163 U.S. 537, 548-52 (1896) ("we think the enforced
separation of the races, as applied to the internal commerce of
the state, neither abridges the privileges or immunities of the
colored man, deprives him of his property without due process of
law, nor denies him the equal protection of the laws.... If the
civil and political rights of both races be equal, one cannot be
inferior to the other civilly or politically. If one race be
inferior to the other socially, the Constitution of the United
States cannot put them on the same plane.").
14
{| See, e.9., States' Laws on Race and Color 389-117 (P. Murray, ed.
1950) (cataloguing Georgia constitutional and
| sions enacted to establish a system of racia
¥ Among these statutes, for example, 1s one making 1
i for any "person controlling convicts [to] ... conf
i colored convicts together, or work them chained
egregation.)
a misdemeanor
ine white and
together, or
1 chain them together going to or from their work, or at any other
3 time." Id. at 115, (citing Former Ga. Code § 77-9804 (1950)).
|
|
for the rights of black defendants especially, for those charged
15
with capital crimes, as well as frequent resort to extra-legal
16
violence against black criminal suspects.
In determining appropriate punishments, Gunner Myrdal
reported in 1942, both the race of the defendant and that of the
v
victim played an important part:
[Tlhe discrimination does not always run
against a Negro defendant. It is part Of the
Southern tradition to assume that Negroes are
disorderly and lack elementary morals, and to
show great indulgence toward Negro violence
and disorderliness 'when they are among
themselves.’
For offenses which involve any actual or
potential danger to whites, however, Negroes
are punished more severely.than whites.
. Mot
public tension and community pressure increase
with the seriousness of the alleged crime....
There is thus even less possibility for a fair
trial when the Negro's crime is serious. In
the case of a threatened lynching, the court
makes no pretence at justice; the Negro must
be condemned, and usually ¢ondemned to death,
before the crowd gets nim.
It is well kmown to this Court that the influence of racial
discrimination did not disappear from state Srininal fusuice
systems after World War II. On the contrary, the distorting
effects of racial prejudice have continued well into the present
18
era, in the State of Georgia, as elsewhere, As Justice Blackmun
-
13 12. "Bape, 1007 (X.D. Ga. 1333)
7
ndant, dominated by mob violence,
relief granted).
See, e.g9., Downer v. Dunaway
[state trial of piack defen
violated due process; haoveas
Between 1900 and 1929, the State of Georgia had the third highest
rate of lynching of any state. F. Raper, The Tragedy of Lynching
483 (1933). Four black men were lyncned 1n Monroe County,
Georgia as late as 1946. N.Y. Times, July 27, A946, § lat: 1,
17 5 Gg. Myrd
Democracy
al n Dilemma: The Negro Problem & Modern
£5 )
7
¥, 553
18 or 3 ut
See, e.g., Screws v. United Sta od
Of Baker County, Georgla, bea
courthouse lawn during arrest
Georgia, 345 0.5. 55911853)
5) (Sherif
to death on
e); Avery v,
tematically
~
s
m
h
O ry or
sy
iD
H
h
i
i
oO
Fn
f
y
- 10 -
| nas written, "we ... cannot deny that, 114 years after the close
of the War Between the States and nearly 100 years after Strauder
[v. West Virginia, supra,] racial and other forms of discrimina-
tion Still remain a fact of life, in the administration of
justice as in our society as a whole. Perhaps today that
discrimination takes a form more subtle than before. But it is
not less real or pernicious." Rose v. Mitchell, 443 U.S. 545,
558-59 (1979).
2. Race and the Death Penalty
The racial discrimination so widely observed in the criminal
justice system of past years has worked particular evil in the
area of capital sunisinent. Statistics compiled nationally from
1930 through 1967 reveal that black persons, although never more
than 12 percent of the population, constituted over 53 percent of
all those executed during this piriod. For the crime of rape,
blacks constituted a remarkable 405 of the 455 total executions
20
that took place. Social scientists who have examined these
phenomena more closely report that the disparities are not
| attributable solely to a higher incidence of crime among blacks.
Rather, "[s]trong statistically significant differences in the
proportions of blacks sentenced to death, compared to whites,
excluded from black defendant's capital jury by use of separate
white and yellow tickets for white and black prospective jurors);
i Williams v. Georgia, 349 0.8. 375 (1955) (same); Reece v,
| deorgia, 350 U.S. 35 (1955) (grand and traverse jury discrimina-
tion); Whitus v. Georgia, 385 U.S. 545 (1967) (jury discrimi-
nation by use of segregated tax records); Jones v. Georgia, 389
| U.S. 25 (1857) (same); Sims v. Georgia, 38% U.S. 404 (1367)
H (same); Turner v. Fouche, 396 U.S. 346 (1970) (underrepresenta-
1 tion of BPlacks on Taliaferro County, Georgia grand juries).
} 19 ta I LY :
§ United States Dept. of Justice, Bureau of Prisons, National |
z Prisoner Statistics, No. 46, Capital Punishment 1930-1970, 8 |
| (Aug. 1971),
1
| 20 id.
when a variety of nonracial aggravating circumstances are
considered, permit the conclusion that the sentencing differen-
- 21
tials are the product of racial discrimination.”
The possibility of racial bias clearly troubled a number of
Justices who voted in Furman v. Georgia, 408 U.S. 238 (1972) (per
| curiam), to strike down the capital statutes of Georgia and every
| 22
other state that then imposed the death penalty. When Georgia's
post-Furman capital statutes subsequently came before the Court
pe
for review in Gregg v. Georgia, 428 U.S. 153 (1976), counsel for
Gregg urged that continued discrimination would be virtually
2) Wolfgang & Riedel, Race, Judicial Discretion and the Death
Penalty, 407 Annals 119 (May 1973). See generally W. Bowers,
. Tegal Homicide: Death as Punishment in America 1864-1982 67-102
(1984) Ch. 3, Race Discrimination in State-Imposed Executions;
Johnson, The Negro and Crime 217 Annals 93 (1941); Garfinkel,
Research Note on Inter- and Intra-Racial Homicides, 27 Social
Forces 369 (1949); Wolfgang & Reldel, Rape, Race, and the Death
Penalty in Georgia, 45 Am. J. Orthopsychiat. 658 (1975); Bowers &
Pierce, Arbitrariness and Discrimination under Post-Furman
Capital Statutes, 26 Crime & Deling. 563 (1980); Radelet, Racial
Characteristics and the Imposition of the Death Penalty, 46 Am.
SoC. Rev. 318 (13981); Zelsel, Race Blas ln the Administration of
the Death Penaltv: The Florida Experience, 95 Harv. L. Rev, 456
{1981). :
22 E.g. Furman v. Georgia, supra, 408 U.S. at 249 (Douglas, J.,
concurring) (" (t]he President's Commissionron Law Enforcement and
Administration of Justice recently concluded: 'Finally there is
evidence that the imposition of the death sentence and the
exercise of dispensing power by the courts and the executive
follow discriminatory patterns. The death sentence is dispropor-
tionately imposed and carried out on the poor, the Negro, and the
members of unpopular groups'); id. at 309-10 (Stewart, J.,
concurring) ("the petitioners are among a capriciously selected
random handful upon whom the sentence of death has been imposed.
My concurring Brothers have demonstrated that, if any basis can
be discerned for the selection of these few sentenced to die, it
is the constitutionally impermissible basis of race"); 1d. at 364
| (Marshall, J., concurring) ("capital punishment is imposed
discriminatorily against certain identifiable classes of people
... studies indicate that while the higher rate of execution
among Negroes is partially due to a higher rate of crime, there
is evidence of racial discrimination”). Cf. id. at 389 n.12
(Burger, C. J., dissenting) ("[s]tatistics are also cited to show
that the death penalty has been imposed in a racially discrimina-
tory manner. Such statistics suggest, at least as 2 historical
matter, that Negroes have been sentenced to death with greater
frequency than whites in several States"); id. at 449-50 (Powell
J., dissenting) ("[{i]lf a Negro defendant S.. could demonstrat
that members of his race were being singled out for more sever
punishment than others charged with the same offense, a constitu
tional violation might be established.")
i
D
D
~
inevitable, since "the capital sentencing procedures adopted by
Georgia in response to Furman [did] not eliminate the dangers of
arbitrariness and caprice in jury sentencing that were held in
Furman to be violative of the Eighth and Fourteenth Amendments.”
Gregg v. Georgia, supra, 428 U.S. at 200. The Court did not
disagree with counsel's premise that, under Furman, the Eighth
Amendment requires eradication of the influence of racial
prejudice in capital sentencing. To the contrary, the Court
reiterated Furman's central holding that "[b]ecause of [its]
uniqueness ... the death penalty ... [may] not be imposed under
sentencing procedures that createl[] 2 substantial risk that it
[will] ... be inflicted in an arbitrary and capricious manner.”
Gregg v. Georgia, supra, 428 U.S. at 188.
However, after reviewing the new sentencing procedures
prescribed by the Georgia statute, id. at 196-98, the Court held
that "[oln their face these procedures seem tO satisfy the
concerns of Furman." Id. at 198. This conclusion rested on an
assessment that Georgia's bifurcation of the guilt and sentencing
proceedings, its provision of sentencing guidelines, and its
requirement of appellate sentence review furnished prima facie
nassurance that the concerns that prompted our decision in Furman
are not present to any significant degree in the Georgia proce-
dure applied here." 1d. at 207. Justice White, writing for
himself, the Chief Justice, and Justice Rehnquist, agreed,
finding Gregg's argument "considerably overstated," id. at 221.
He reasoned that "[t]lhe Georgia Legislature has plainly made an
effort to guide the jury in the exercise of its discretion, while
at the same time permitting the jury to dispense mercy on the
basis of factors too intangible to write into a statute ... I
cannot accept the naked a on
sertion that the effort is bound to
£ail." 14. at 222. Justice White thus declined to speculate --
rsr—
in the absence of clear proof to the contrary -- that Georgia's
experiment with "guided discretion" statutes would inevitably
fail to curb racial discrimination or arbitrariness:
Indeed, if the Georgia Supreme Court properly
performs the task assigned to it under the
Georgia statutes, death sentences imposed for
discriminatory reasons or wantonly or freak-
ishly for any category of crime will be set
aside.
* *.%
Petitioner's argument that prosecutors
behave in a standardless fashion in deciding
which cases to try as capital felonies is
unsupported by any facts ... Absent facts to
the contrary, it cannot be assumed that
prosecutors: will be motivated in. their
charging decision by factors other than the
strength of their case and the likelihood that
a jury would impose the death penalty if it
convicts.
Ié8. 224-25.
In the post-Gregg era, however, the Court has emphasized
that its approval of the facial validity of Georgia's capital
sentencing procedures constitutes something less than a licensing
of any and every result which they produce. Georgia has "a
constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of the
death penalty," Godfrey v. Georgia, 446 U.S. 420, 428 (1980)
(emphasis added); and the very ratio decidendl of Gregg "recog-
nized that the constitutionality of Georgia death sentences
ultimately would depend on the Georgia Supreme Court construing
rhe statute and reviewing capital sentences consistently with ...
[the] concern [of Furmanl." Zant v, Stephens [I], 456 U.S. 410,
413 7{ 1982) (per curiam}. "If "Georgia attached the 'aggravating'
label to factors that are constitutionally impermissible or
totally irrelevant to the sentencing process, such as . wv. he
race ..,. Of the defendant, ... due process Of law would require
that the jury's decision to impose death be set aside." Zant v.
'| Stephens [II], 462 U.S. 862, 885 {1983).
Thus, the ultimate Eighth Amendment test, the Court has
plainly said, remains whether Georgia's capital sentencing system
actually works, whether its procedures truly serve to eliminate
the invidious racial distinctions that have haunted its past use
of the death penalty.
3. Petitioner's Record Evidence: The Baldus Studies
Petitioner Warren McCleskey -- a young black man sentenced
to death for the murder of a white Atlanta police officer -- has
alleged that the Georgia system under which .he was sentenced is
racially discriminatory in its application, and is arbitrary and
capricious, violating in practice both the Eighth Amendment and
Equal Protection Clause of the Fourteenth Amendment. TO support
those claims, petitioner presented a comprehensive body of
evidence to the District Court during a two-week evidentiary
hearing held August 8-22, 1983.
Petitioner's submissions included: (1) two multifaceted
social scientific studies of the actual application of Georgia's
capital sentencing system from 1973-1979, each comprising information on hundreds of relevant items about each case
| (including statutory and non-statutory aggravating circumstances,
| mitigating circumstances, strength-of-the-evidence factors, and
| factors concerning the victim and the defendant); (ii) a statis-
| tical study of capital sentencing in Fulton County, where
petitioner was tried and sentenced; (iii) two nonstatistical
"cohort" studies, one investigating all police homicides in Pon]
Pulton County since 1973, the other examining those "near
neighbor” homicides in Fulton County similar to "Warren
McCleskey's; and (iv) the deposition testimony of the Fulton
County District Attorney concerning the sentencing policies and
procedures of his office in homicide Seselis
Petitioner's expert witnesses included Professor David
Baldus, one of the nation's leading authorities on the legal use
of statistics to evaluate claims of racial hain tak bon Dr.
George Woodworth, a prominent theoretical and applied statisti-
Xs and -- to evaluate the work of Baldus and Woodworth -- Dr.
Richard Berk, a highly qualified social scientist, frequently
consulted on criminal justice issues by the United States
Department of Justice, who served as a member of a distinguished
National Academy of Sciences panel charged with establishing
professional standards for .the conduct of sentencing Suse rgohs
professors Baldus and Dr. Woodworth testified concerning
their comprehensive studies of the operation of Georgia's capital
sentencing system for the period 1973-19789. Baldus explained
that the studies were designed from the outset to evaluate
possible racial discrimination in Georgia's post-Furman capital
system: "[T]lhe decision of the Court in Gregg proceeded on the
2 3 : :
M : ~~ -
Petitioner also sought discovery from the State to develop
anecdotal and historical evidence of racial discrimination in the
criminal justice system of Fulton County and the State of
Georgia, and, more Dproadly, in all city, jcounty and state
government activities. See Petitioner's Motion for Discovery,
dated April 7, 1983. The District Court denied petitioner's
request for this discovery, holding that this information was
"not relevant to any issue presented by the petitioner." Order
of June 3, 1983, at 2. Consequently, petitioner was unable to
present such evidence during his evidentiary hearing.
24 ; A ; :
Professor Baldus is co-author of D. Baldus & J. Cole, Statistical
Proof of Discrimination (1980), a work widely relled upon by
federal and state courts. See cases cited in DB 6. (Each of
petitioner's exhibits bears the initials of the witness through
whom it was offered, e.g., David Baldus exhibits are marked "DB,"
followed by the appropriate exhibit number).
25 ay 1.
26 RB..}; See Pr. 1761-823, (All
evidentiary hearing held in Di
1983, will be indicated by the abbre:
number of the page on which the re
Ss to the transcript of the
ict Court on August 3-22,
tion "Tr." followed by the
ence may be found.)
assumption that the procedural safeguards adopted in... Georgia
... were adequate to insure that death sentencing decisions would
be neither excessive nor discriminatory.... [M]y principal
concern was [to investigate] whether or not those assumptions ...
were valid.” (Tr. 129).
Baldus' studies followed state-of-the-art procedures in
questionnaire design, data collection, and data analysis. Since
the Court of Appeals assumed the validity of Baldus' studies =--
denying relief on the ground that petitioner's claims failed as a
matter of law, see App. A. McCleskey v. Kemp, supra, 753 F.24 at
886, 894 -- we will not detail here the extraordinary procedures
by which Baldus assured the accuracy and completeness of his
data. A more thorough discussion of his methodology appears in
Appendix E. Here it suffices to repeat the judgment of Dr. Berk,
who evaluated their quality and soundness in light of his prior
comprehensive review of sentencing research for the National
Academy of Sciences:
[Baldus' studies] have] very high credibi-
lity, especially compared to the studies that
[the National Academy of Sciences] “40
reviewed. We review hundreds of studies on
sentencing ... and there's no doubt that at
this moment, this is far and away the most
complete and thorough analysis of sentencing
that's ever been done. I mean there's nothing
even close.
{Tr. 1766).
The two Baldus studies show this: Georgia's post-Furman
administration of the death penalty is marked by persistent
racial disparities in capital sentencing -- disparities by race
' of the victim and by race of the defendant -- that are highly
statistically significant and cannot be explained by any of the
nundreds of offer sentencing factors for which Baldus controlled.
(Tr. 726-28). Baldus' unadjusted figures reveal that Georgia
capital defendants who kill white victims are eleven times more
il
i 1
i
H I
Hl
8 |
{i
likely to receive a death sentence than are those who kill black
victims. Among all persons indicted for the murder of whites,
black defendants receive death sentences nearly three times as
often as white defendants: 22% 0 8%, (DB 63). Baldus testi-
fied that his expert opinions did not rest upon these unadjusted
figures, however. TO the contrary, he subjected his data to a
wide variety of increasingly sophisticated analytical methods,
employing dozens of models of varying complexity to determine
whether plausible factors other than race might explain the gross
racial disparities. (Tr. 734; see, e.9., DB 78, 79 80, 83, 98;
GW 4). They did not. Rather, the race of rhe defendant and the
race of the victim proved to be as powerful determinants of
capital sentencing in Georgls as many of Georgia's statutory
aggravating circumstances. (See DB 81). The race of the victim,
for example, counts as much in practice toward increasing the
likelihood of a death sentence as whether the defendant has a
prior murder conviction, or whether he is the prime mover in the
homicide. (Sce pE 8%). The race of the defendant proves more
important than a history of drug or alcohol abuse, or whether the
defendant is under age 17. (Id).
To quantify the effect of race on capital sentences in
Georgia, Baldus employed a variety of additional procedures,
among them the "index method," an application of the well-recog-
nized statistical technique of crosstabulation. In indexing the
cases, he first sorted the cases into eight groups, according to
their overall "level of aggravation.” (Tr. 836-79). " He tnen
analyzed the racial disparities that appeared within each group
of increasingly more aggravated cases. Some ninety percent of
the cases fell into groups in which almost no one received a
death sentence. In these groups, naturally, since nearly every
defendant was given a life sentence, no racial disparities
appeared. (Tr. 878-79; see DB 89).
Yet when Baldus took the two most aggravated groups,
containing approximately 400 cases, and subdivided them into
eight subgroups, gross racial disparities became crystal clear.
Baldus found dramatic, persistent differences by race of the
victim (compare especially columns C and D):
A
Predicted
Chance of
a Death
Sentence
1 (least)
to. 8
(highest
1
{D8 S01},
B
Average
Actual
Sentence-
ing Rate
for the
Cases at
Each Level
Black
Death Sentencing Rates for
Defendants Involving
.0
(0/33)
.0
(0/55)
.08
(6/76)
.07
(4/57)
«27
(15/58)
.17
(11/64)
.41
£29771)
.88
(31/58)
and by race of the
White
Victim Cases
+0
(0/9) |
.0
(0/8)
.30
(3/10)
.23
(3/13)
«35
(9/26)
.38
(3/8)
.64
(9/14)
«91
£20722)
defendant:
Black
Victim Cases
.0
(0/19)
i
(0/27)
«1
(2/18)
.0
{0/19)
«13
(2/12)
.05
(1/20)
.39
(3/13)
e758
(6/8)
E
Arithmetic
Difference
in Rate of
the Victim
Rates
{COl. C
= Col. D)
.0
«23
.18
«33
«25
.16
A B oc D E
Predicted Average : Arithmetic
Chance of Actual Difference
a Death Sentence- Death Sentencing Rates for in Race of
Sentence ing Rate White Victims Involving the Defen-
1 (least) for the dant Rates
0 8 Cases at Black White {Col. C
(highest Each Level Defendants Defendants =- Col. D)
1 ME J +0 .0
(0/33) (0/9) (0.5)
2 gL .0 «0 0
(0/55) (0/8) (0/19)
3 .08 e30 LF «03 v27
(6/76) (3/10) (1/38)
4 «07 23 .04 . 15
(4/57) (3/13) {1/29)
5 27 .35 .20 “al a
{15/58) (9/26) (4/20)
6 .18 +38 78 ; EA
(11/64) (3/8) (5/32)
7 . 41 .64 «39 Er L.
(29/71) (9/14) (15/39)
8 .38 « 3 «39 +02
{51/58) {20/22) (25/28)
(DB 91),
| Baldus observed that, even among these 400 cases, little
disparity appeared in the less aggravated cases. "[B]ut once the | [overall] death sentencing rate begins to rise, you'll note that
l {+ rises first in the white victim cases. .It rises there more
sharply than it does in the black victim cages." (Tr, 832-83.)
As Judge Clark noted in his opinion below:
-
Race 13s a factor in the system only where
rhere is room for discretion, that is, where
the decision maker has a viable choice. In
| the large number of cases, race has no effect.
These are the cases where the facts are so
mitigated the death penalty 1s not even
considered as a possible punishment. At the
other end of the spectrum are the tremendously
aggravated murder cases where the defendant
will very probably receive the death penalty,
| regardless of his race or the race of the
victim. In between is the mid-range of cases
he
ey
J
| . - 20 -
where there is an approximately 20% racial
disparity.
App. A., 753 F.24 at 320 (Clark, J., dissenting in part &
concurring in part). (See Tr. 865-71; 882-85).
In addition to the index method, Baldus used a variety of
multiple regression techniques to calculate the effects of race
on Georgia capital sentences. As he explained, multiple regres-
sion analyses permit one to measure the average impact of a
single factor (or msariable™), such as the race of the defendant,
across all of the cases. The "regression coefficient™ describes
the average effect of that factor, after adjusting for (or
"controlling" for) the cumulative impact of all other factors
considered. For example, a coefficient of 36. indlontes that the
presence of that factor in a case would increase the likelihood
27
of a death sentence by an average of six percentage points.
Baldus conducted a wide array of such analyses, employing
dozens of combinations of variables (or "models") designed to
include the various important factors which may enter into
capital sentencing determinations. Among these factors were
statutory and nonstatutory aggravating circumstances, mitigating
circumstances and variables relating to the strength of the
evidence. Some models employed all 230 of Baldus' factors (see
DB 83); one was specifically designed by the District Court, at
petitioner's invitation, to reflect those factors which the court
judged most appropriate and influential in determining capital
sentencing outcomes. (Tr. 810; 1426; 1475-76; see Court's EX.
1). All showed race-of-victim disparities, virtually all of
27 It is important to realize that this does not mean a six percent
increase but a six percentage point increase. Thus, for example,
if the overall likellinood of a death sentence in a given category
of cases is .05, or 5-in-100, a .06 coefficient for the factor
"white victim" would mean a six point increase in the likelihood
of death for such cases, to .11, or 11-in-100. That wold, of
course, amount to a 120 percent increase in the likelihood that a
death sentence would be 1mposed.
i
which were highly statistically significant. Many showed
: 28
race-of-defendant disparities as well. For example, DB 83
reflected the following results:
W.L.S. REGRESSION RESULTS
A B c
Coefficients and Level of
Non-Racial Statistical Significance
Variables in
The Analysis Race of Victim Race of Defendant
a) 230 + aggravating, .06 .06
mitigating, evi- { +02) §.02)
dentiary and sus-
pect factors
o) Statutory aggravat- «07 : .06
ing circumstances yw O19) {+0Y)
and 126 factors
derived from the
entire file by a
factor analysis
c) 44 non-racial vari- «07 .06
ables with a sta- (.0002) (.0004)
tistically signifi-
cant relationship
(P<.10) to death
sentencing
|
d) 14 legitimate, non- .06 .06
arbitrary and sta- {.001) (.001) tistically (P<.10)
significant fac-
tors screened with
W.L.S. regression
procedures
e) 13 legitimate, non- .06 .05
arbitrary and sta- (+001) {.02)
tistically signifi-
cant (P<.10) fac-
tors screened with
| logistic regression
| procedures
|
!
|
(DB 83).
28
Statistical significance, Baldus explained, is a measure of the
likelihood that disparate results could be observed in a sample
| of cases merely by chance if, in the capital sentencing system as
|] a whola, there are in fact no disparities as large as those
observed in the sample. (Tr. 712-18). AS conventionally
expressed in "probability" or "p" values, a figure of .03 means
that the likelihood of a chance finding is 5-in-100; a "p" of
01, 1=in~-100. The "p" values in the table above appear in
parentheses beneath each coefficient.
|
The Court of Appeals seized upon the .06 coefficient
reported by Baldus for his 230-plus model in DB 83 as the best
measure ot the overall impact of the race of the victim on
capital sentencing outcomes. See App. A., 7533 F.2d at 896. This
.06 average includes those 90 percent of Georgia cases in which
the aggravation level is so low that death sentences are virtual-
ly never imposed, as well as the highly aggravated cases in which
nearly everyone receives a death sentence. In almost none of
these low- and high-aggravation cases do racial disparities
appear to be of any consequence. Thus the .06 overall average
obviously reflects extraordinarily strong racial disparities
within that class of cases in which a choice between a life
sentence and a death sentence is a serious option for the Jury.
The average race-of-victim disparity among those so-called
"midrange" cases, which comprise the bulk of the 400 most serious
cases reflected in Baldus' index analysis (see page 19 supra), is
roughly a twenty percentage point difference. (Tr. 1738-40), In
other words, if the average death sentencing rate in the midrange
is fifteen out of one hundred, the circumstances of a white
victim increases the likelihood to thirty-five out of one
hundred.
Petitioner introduced a figure illustrating the sentencing
rates among black defendants by race-of-victim:
[insert GW 8 here]
(GW 8). Not only does GW 8 reflect a .20 average disparity in
the midrange of cases; it demonstrates, as Dr. Woodworth testi-
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falls in the middle of the midrange. In fact, after reviewing
the results of three separate statistical techniques, Dr.
Woodworth was able to conclude:
[Alt Mr. McCleskey's level of aggravation the
average white victim case has approximately a
twenty percentage point higher risk of
receiving the death sentence than a similarly
situated black victim case.
(Tr. 1740).
Petitioner offered additional evidence, some of it statisti-
cal and some non-statistical, to identify more precisely the
likely impact of Georgia's pervasive racial disparities on
petitioner McCleskey's case. First, Baldus reported upon his
analysis of data from Fulton County, where petitioner was tried.
He testified that his performance of progressively more sophintis
cated analyses for Fulton County, similar to those he had
employed statewide, "show a clear pattern of race of victim
disparities in death sentencing rates among the cases which our
analyses suggested were death eligible.” (Tr, 983; 'gsge also
1043-44).
To supplement this statistical picture, Baldus examined a
"cohort™ of 17 Fulton County defendants arrested and charged, as
was petitioner, with homicide of =a police officer during the
1973-1979 period. Only two among the seventeen, Baldus found,
even went to a penalty trial. One, whose police victim was
black, received a life sentence. (oz. 1050-62; DB 118). Peti-
tioner, whose police victim was white, received a death sentence.
Although the numbers were small and therefore require caution,
"the principal conclusion that one is left with," Baldus testi-
fied, Nis that Se emg death sentence that was imposed in
McCleskey's case is not consistant with the disposition of cases
involving police officer victims in this county... (Tr. 1056), -—
|
Baldus conducted
a gecond cohort study examining
the facts
of those cases in Fulton county that scored nearest tO petitioner
McCleskey
in their overall level of aggravation
("near neighbors”
cases) . {Pr 986-91) « After sorting the 32 closest into
pypicaly more aggravated
and less aggravated
cases; employing
a
qualitative
measure (Tr. 991), Baldus computed death sentencing
rates for the cases proken down by race of victim and race of
defendant.
within petitioner
McCleskey's
group; che difference
in treatment
by race of the victim was forty percentage
points.
{TL., 993).
In sum, mMOSEt of galdus' many measures
revealed
strong,
statisticall
y significant
disparities
in capital sentencing
in
Georgia homicide cases; pased upon rne race of the victim. (Tr.
726-28) « race-of-def
endant disparities
fhsn regularly
appeared;
although not with the invariable
consistency
and statistical
significanc
e of tne victim statistics.
1d. In response to the
n—
pistrict court's question whether he could "say rhat what caused
McCleskey
©© get the death penalty «-- was the fact that he
murdered a white person,” (PR. 1085) Baldus concluded:
Wo, I can’t say that was rhe factor. No. But
what I can say: though, ig when I 100K at all
rhe other legitimate
factors 1in nis casey and
1 “100K tO the main 1ine of cases in this
jurisdictio
n. statwide,
that ar§ 1ike his,
particularl
y rhe way B2 cases and cases
involving officer victims are disposed of in
this jurisdiction
: his case 1s supstantiall
y
out of line with the normal rrend of decision
on such cases ss 1 can't sec any factors,
legitimate
factors in nis case tnat would
clearly call for it, that would distinguis
h it
clezrly fron rhe other cases
so you're
1eft with what other factor it might Dey, and
what I can say: and what I dc say 1s rhat the
racial factor is possibly rhe thing rhat made
the difference
in the case. a] real possibi-
i m——
29 ppe reference is to former Ga. Code Ann. § 27-2534.1(0)
(2) which
designates
as an aggravating
circumstance
chat "[c]lne offense of
murder, rape: armed robbery: or xidnapping
was committed while
rhe offender was engaged in the commission
of another capital
felony."
petitioner'
s jury was charged on this aggravating
circumstance
.
e
m
p
—
—
—
—
—
—
p
r
——
——
——
——
——
——
—"
lity in my estimation, that that's what made
the difference. But I can't say with any, I
can't quantify the likelihood that that is
true. That's as far as I think I can go in
terms of making responsible judgment.
(Tr. 1085-88).
In response to petitioner's submission, the State did not
point to any analysis by Baldus in which the racial disparities
disappeared or ran counter to petitioner's claims. The State
offered no alternative model which might have reduced or elimi-
nated the racial disparities. (Tr. 1609). The State did not
even propose -- much less test the effect of -- any additional
"explanatory variables," such as factors related to the crime,
the victim, or the defendant. (Id.) Indeed, it admitted that it
did not know whether the addition of any such factors "would have
any effect or not.” (Tr. 1567).
The State performed no multivariate analyses of its own to
determine whether black and white victim or defendant cases were
being treated differently in the State of Georgia. (Tr. 1615).
Indeed, the State even declined an offer made by petitioner
during the hearing to take any alternative factors proposed by
the State, have petitioner's experts calculate their effects, and
determine whether the results might reduce or eliminate the
racial effects observed by Baldus. (Tr. 1475-76). In short, the
State presented no affirmative rebuttal case at hs
The State's principal expert did offer one hypothesis in
rebuttal: that Georgia's apparent racial disparities could De
explained by the generally more aggravated nature of white-victim
30 what the State did do was to attempt to attack the integrity of
the sources of petitioner's data -- data gathered by petitioner's
experts with the cooperation of state officials from the files of
the Supreme Court of Georgia, the Georgia Department of Pardons
and Paroles, and the Georgia Department of Corrections. Peti-
tioner's detailed description of the data-gathering methods, and
his factual comment on the State's challenges to them, appear in
Appendix E.
cases. However, that expert never addressed the factual question
critical to his own theory -- whether white- and black-victim
cases at the same level of aggravation are treated similarly, or
differently by the State of Georgia. {Tr, 1684), He mersly
acknowledged on Srcsskeraninat ion that to do so "would have been
desirable.” (Tr. 1613). Petitioner's experts did then address
this hypothesis directly. (Tr. 1297; 1729-32). After testing it
thoroughly (Tr. 1291-355; see CW 5-8; DB 92), they were able to
demonstrate without contradiction that it could not explain
Georgia's racial disparities in capital sentencing. (Tr. 1732).
4. The Opinion of the Court of Appeals
In its opinion, the Court of Appeals does not quarrel with
the factual findings of petitioner's studies. To the contrary,
it expressly "assum[es] the validity of the research,” App. A.,
253 F.2d at 886, and "that it proves what it claims to prove,"
14. See also id. at 894. The Court instead rejects petitioner's
claims as a matter of law, concluding that Baldus' findings
"would not support a decision that the Georgia law was being
unconstitutionally applied, much less ... compel such a finding,
the level which wets loher would have to reach in order zo.
prevail on this appeal.” 1d. at 886-87.
The legal analysis producing this result proceeds on two
principal fronts. First, the Court holds that the proof required
to prevail on an Eighth Amendment claim, at least when race is
alleged to have played a part in the sentencing system, 1s not
substantially distinguishable from the proof of intentional
discrimination required to establish an equal protection claim.
Id. ac 891-92. The Court admits that "cruel and unusual punish-
ment cases do not normally focus on the intent of the governmen-
tal actor," id. at 892, but reasons that "where racial discrimi-
nation is claimed, not on the basis of procedural faults or flaws
in the structure of the law, but on the basis of decisions made
within [the capital sentencing] process, then purpose, intent and
motive are a natural component of the proof that discrimination
actually occurred.” Id. "We, therefore, hold," the Court
concluded, "that proof of a disparate impact alone is insuffi-
cient to invalidate a capital sentencing system, unless ... it
compels a conclusion ... of purposeful discrimination -- i.e.,
race is intentionally being used as a factor in sentencing....”
Turning to pecitionar’s Fourteenth Amendment challenge and
to his statistical case under both the Eighth and Fourteenth
Amendments, the Court addresses and resolves, in novel fashion, a
host of important legal. issues: (i) the proper limits of
statistical evidence in proving intent; (ii) the utility of
multiple regression analysis; and (iii) the proper prima facie
burden to place on a petitioner alleging intentional discrimina-
tion, including: (a) the magnitude of disparity that must be
shown; (b) the extent to which other variables must be antici-
pated and accounted for; (c¢) the need to identify those specific
actors who have intentionally discriminated; and (4d) the need to
prove individual injury. The Court creates as well a new rule
for cases where, as here, gross disparities appear larger in one
portion of the system (the "midrange") than in the system as a.
whole. Finally, it sets forth a standard to be employed by the
lower courts in determining whether evidence of racial discrimi-
nation in capital sentencing warrants an evidentiary hearing. We
will briefly review each of these holdings.
The majority opinion acknowledges that "[t]o some extent a
broad issue before this Court concerns the role that social
science is to have in judicial decisionmaking." Id. at 887
addressing that theme, the Court expresses deep skepticism about
the power of statistical evidence, especlally to prove intent
"If disparate impact is sought to be proved," the Court reasons,
"statistics are more useful than if the causes of that impact
must be proved. Where intent and motivation must be proved, the
statistics have even less utility." Id. at 888. Although it
cites prior holdings that "'statistics alone ... under certain
limited circumstances ... might [establish intentional discrimi-
nation],'" id., the Court's basic instinct is clearly that "[t]o
utilize conclusions from such research to explain the specific
intent of a specific behavioral situation goes beyond the
legitimate uses for such research." Id. "The lesson ... must be
that generalized statistical studies are Of little use” in
deciding whether a particular defendant has been snoonsticy~
tionally sentenced to death." Id. at EL
The Court's reservations about the ultimate utility of
statistical evidence are directly related to the extraordinary
prima facie standard it sets for a petitioner who would prove
intentional discrimination. I: is not sufficient, the Court
‘holds, to offer proof that such discrimination is more likely
than not:
[P]roof of a disparate impact alone 1s
insufficient to invalidate a capital sentenc-
ing system unless that impact 1s so great that
it compels a conclusion that the system is
3 The Court also appears to reject the fundamental property of
regression analysis: its ability to measure the independent
impact of a particular variable on the operation of a system as a
whole and reflect that impact in a coefficient. For example, the
Court states: "The Baldus study statistical evidence does not
purport to show that McCleskey was sentenced to death because of
either his race or the race of his victim. It only shows that in
a group involving blacks and whites, all of whose cases are
virtually the same, there would be more blacks receiving the
death penalty than whites and more murderers of whites receiving
the death penalty than murderers of blacks. The statisticians’
'best guess' is that race was a factor in those cases and has a
role in the sentencing structure in Georgia." 1d. at 895.
Similarly, at another point, the Court finds: ™ [T]he 20%
disparity in this case does not purport to be an actual dispa-
rity. Rather, the figure reflects that the variables included in
the study do not adequately explain the 20% disparity and that
the statisticians can explain it only by assuming the racial
effect.” IA, at 898,
unprincipled, irrational, arbitrary and
capricious such that purposeful discrimination
... can be presumed to permeate the system.
Id. at 892 (emphasis added). The Court repeatedly insists that
the "disparity (bel .++. sufficient to compel a conclusion that
it results from discriminatory intent and purpose," 1d. at 893.
See also id. at 886-87. It occasionally phrases the prima facie
burden alternatively as a showing "of racially disproportionate
impact ... sO strong as to permit no inference other than that
the results are the product of a racially discriminatory intent
or purpose.” 1d. at 889 (emphasis added). See id. at 890.
The Court quickly clarifies, however, that even unquestioned
proof that a racial disparity does exist will not suffice to
prove a constitutional violation unless the disparity can be
shown to be of a sufficient magnitude: "The key to the problems
lies in the principle that the proof, no matter how strong, of
some disparity is alone insufficient." Id. at 894. marning. Lo
| the six percentage point overall difference demonstrated in
Georgia's capital sentencing system, the opinion concludes that,
de
aven if "true, this Elours is not sufficient to overcome the
presumption that the statute is operating in a constitutional
manner." Id. at 257, 2
The Court stops short, however, of declaring that the 20
point disparity Baldus reported for the midrange of cases is
likewise insufficient. Instead the Court complains that "Baldus
did not testify that he found statistical significance in the 20%
disparity Gunes and that "he did not adequately explain the
rationale of his definition of the midrange of cases ... leav-
[ing] this Court unpersuaded that there is a rationally classi-
fied, well-defined class of cases in which it can be demonstrated
rhat a race-of-victim effect is operating with a magnitude
approximately 20%." Id. at 288.
Beyond its insistence that a prima facie showing must
include racial disparities of a large, though unspecified,
magnitude, the Court of Appeals also appears to suggest that no
statistical analysis can be fully adequate if it fails to account
for every factor that might conceivably affect sentencing
outcomes, The Court faults Baldus' studies, despite their
inclusion of over 230 possible sentencing considerations, because
1
his "approach ... lgnores quantitative [sic] differences in
32
. - 4 * *
The Court of Appeals grounds its holding 1n part upon this
Court's disposition of stay applications in three capital cases
from Florida -- Sullivan v. Wainwright, 5.5. r 78
L.Ed.2d 210 (1983); Wainwright v. Adams, J.S. +. 80
L.Ed.2d 809 (1984); and Walnwrlight v. Ford, g.S. ; 82
L.E3d.24 911 (1984), Noting that the study proffered in those
cases reported a disparity similar to one of Baldus' findings,
the Court concludes that "it is reasonable to suppose that the
Supreme Court looked at the bottom line indicacion Of racial
effect [in the Florida study] and held that it simply was
insufficient to state a claim." Id. at 897. From that specula-
tion, the majority proceeds to a conclusion that all of the
disparities reported by Baldus are insufficient.
33 3
In fact, the table from which this figure is derived ind
that it is statistically significant at the .01 level. {
80 1.1}.
34
But see Tr. 879-85 for Professor Baldus' testimony on this point.
|
i
i
cases: looks, age, personality, education, profession, job,
clothes, demeanor, and remorse, just to name a few," id. at 899,
and is "incapable of measuring qualitative differences of such
things as aggravating and mitigating factors." Id. "Generalized
studies," the Court states,
would appear to have little hope of excluding
every possible factor that might make a
difference between crimes and defendants,
exclusive of race. To the extent there is a
subjective or judgmental component tO the
discretion with which a sentence is invested,
not only will no two defendants be seen
identical by the sentencers, but no two
sentencers will see a single case precisely
the same. As the court has recognized, there
are 'countless racially neutral variables' in
the sentencing of capital cases.”
Id. at 894 (citing Smith v. Balkcom, 671 F.2d 858, 859 {5th Cir.
Unit B 1932).
After thus reiterating the theme that capital cases are
routinely affected by a myriad of objective and subjective
considerations, some of them too intangible to be recorded, the
Court in its next thought appears to require a death-sentenced
petitioner to demonstrate that particular actors in his own case
possessed the specific intent to discriminate, and that their
conscious racial biases brought about his sentence. See App. A.,
753 F.2d at 892, 894. We have earlier pointed out the Court's
concern for proof of malignant intent. Its insistence on Proof
of the causal connection between such intent and the death
sentence under attack seems equally clear. The Court several
times identifies as a "limitation" of the Baldus studies that
"[t]here was no suggestion that a uniform, institutional bias
existed that adversely affected defendants in white victim cases
in all circumstances, or a black defendant in all cases." Id. at
887. Lacking this, the Court demands and fails to find evidence
of racial animus in McCleskey's individual case. It notes that
"[t]he Baldus study statistical evidence does not purport to show
that McCleskey was sentenced to death because of either his race
or the race of his victim." 3d. ar 8933. And its ultimate
conclusion is that:
[t]he statistics alone are insufficient to
show that McCleskey's sentence was determined
by the race of his victim, or even that the
race of his victim contributed to the imposi-
tion of the penalty in his case.
McCleskey's petition does not surmount the
threshold burden of stating a claim on this
issue. Aside from the statistics, he presents
literally no evidence that might tend to
support a conclusion that the race Of
McCleskey' s victim in any way motivated the
jury to impose the death sentence in his
case.
Id. at 898.
The same or similar principles lead the Court of Appeals to
announce at least two additional major holdings. First, "assum-
ing arquendo ... that the 20% disparity [in midrange cases like
petitioner's] is an accurate figure," id. at 898, the Court holds
that "a disparity only in the midrange cases, and not in the
system as a whole, cannot provide the basis for a systemwide
challenge.... A .valid system challenge cannot be made only
against the midrange of cases." Id. Second, the Court holds
that "a court faced with a request for an evidentiary hearing to
produce future studies" on racial discrimination need not grant a
hearing unless there is evidence that "a particular defendant was
discriminated against because of his race," something the Court
admits that "general statistical studies ... do not even purport
to prove." Id. at 834.
B. Petitioner's Giglio Claim
Petitioner McCleskey was convicted and sentenced to death
for his part in an armed robbery of the Dixie Furniture Company
in Atlanta, and the murder of police officer Frank Schlatt during
the course of. that robbery. Four robbers entered the store. When
Officer Schlatt, summoned by a silent alarm, came in through the
front door, he was shot and killed. Shortly after the crime,
petitioner confessed to participating in the robbery but insisted
he had not fired the fatal shots.
Two witnesses at petitioner's trial asserted that petitioner
had admitted shooting the officer. One was Ben Wright, a
co-defendant -- himself a possible suspect in the shooting. The
other was Officer Evans, a federal prisoner who had been incar-
cerated with McCleskey prior to trial. Evans told the Jury that
McCleskey had confessed to shooting Officer Schlatt, and had said
he would have done the same thing if it had been twelve police
officers. : Evans' testimony was the centerpiece of the prosecu-
tor's argument to the jury that McCleskey committed the shooting
with malice, (RR. 1222).
At the time of his testimony, Evans was under federal escape
charges. An Atlanta Police Department detective had promised
Evans that he would "speak a word" to the federal authorities for
Evans in return for Evans' testimony againt McCleskey. St. Hab.
Pr, at 122, quoted in App. A., 733 P.2¢ «at $883. After
McCleskey's trial, McCleskey's prosecutor advised federal
officials of Evans' cooperation, and the escape charges were
dropped. Id.
The District Court below found that Evans' trial testimony
concerning his understanding with the Atlanta police was false
and evasive. The misleading testimony began as follows:
Qs You do have an escape charge still pending, is
that. correct?
A: Yass, sir, l've got one, but really it ain't
no escape, what the peoples out there tell me,
because something went wrong out there so I
just went home. I stayed at home and when I
called the man and told him that I would be a
little late coming in, he placed me on escape
charge and told me there wasn't no use of me
coming back, and I just stayed on at home and
he come and picked me up.
Qs Are you hoping that perhaps you won't De
prosecuted for that escape?
A: Yeah, I hope I don't but I don't -- what they
tell me, they ain't going to charge me with
escape no way.
(Trial Tr. 868-58). Evans thus described his escape from a
federal halfway house in Atlanta as nothing more than a misunder-
standing between ‘himself and the halfway house administrators
--nothing for which Evans feared or need fear prosecution. His
testimony on this point is directly contradicted py federal
35
records detailing the circumstances surrounding the escape. He
was asked specifically by the prosecutor whether he had sought or
received from the prosecutor any promises concerning the escape
charge, and he said no. As the District Court found, the jury
was left with the impression from Evans' testimony that no
promises had been made to him concerning the escape charge in
exchange for his cooperation in the McCleskey prosecution. (R.
1220). His testimony on direct examination in the trial court
was as follows:
Q: [Assistant District Attorney] Have you asked
me 0. try to fix it sO0ryou wouldn't get
charged with escape?
A: No, sir.
Q: Havel Ttold you T would try to fix it for you?
35
Those records show that Evans had been told by federal personnel
that disciplinary measures would be taken against him because of
nis use of drugs. In describing his activities during his
escape, Evans had told federal prison authorities that he had
gone to Florida as part of an investigation dealing with drugs,
and that he expected to be well paid for his part. (R. 333, R.
1206),
A: No, sir.
(Trial Tr. 868-69). And on cross-examination Evans expanded upon
these protestations:
Q: Okay. Now, were you attempting to get your
escape charges altered or at least worked out,
were you expecting your testimony to be
helpful in that?
A: I wasn't worrying about the escape charge. I
wouldn't have needed this for that charge,
there wasn't no escape charge.
(Trial Tr. 882). That testimony was directly contradicted by
Evans' subsequent testimony in State habeas corpus proceedings
that "the Detective told me that he would -- he said he was going
to do it himself, speak a word for me. That was what the
Detective told me." (St. Bab. Tr, aL 1227V,
C. Petitioner's Claim Under Sandstrom v. Montana and
Francis v. Pranklin
During its charge to the jury at the close of the guilt-or-
innocence phase of petitioner's trial, the trial court instructed
the jury as follows:
One section of our law says that the acts of a
person of sound mind and discretion are
presumed to be the product of the person's
will, and a person of sound mind 1s presumed
to intend the natural and probable conse-
quences Of his acts, but both of these
presumptions may be rebutted.
36
{Teial Pr. 996-97).
35 The full instructions appear in the District Court's opinion.
App. B.,» 580 F, Supp. at 384-55 n.2%,
After approximately two hours of deliberations, the jury
returned to the courtroom and requested the trial court to give
them further {nstrasiions on malice. {Trial Tr. 1007-09). Ths
trial court then repeated his initial instructions on that:
element of the crime. (Id).
D. Petitioner's Death-Qualification Claim
During voir é&ire, at least two prospective jurors, Ms.
Barbara Weston and Mrs. Emma Cason, were excluded by the State
for cause because of their conscientious or religious scruples
against the death penalty, although neither stated that their
views would preclude them from fairly judging petitioner's guilt
Or innocence. {Trial Tr. 98-99; 129-30). Defense saneal made
timely objection to the exclusion of both jurors. {Zrizl Tr. 98,
130).
HOW THE FEDERAL QUESTIONS
WERE RAISED AND DECIDED BELOW
A. Petitioner McCleskey alleged in his federal habeas
corpus petition, filed in the District Court on December 30,
1981, that " [t]he death penalty 1s in fact administered and
applied arbitrarily, capriciously and whimsically in the State of
Georgia, and petitioner was sentenced to die and will be executed
pursuant to a pattern of wholly arbitrary and capricious inflic-
tion of that penalty in violation of ... the Eighth and Four-
teenth Amendments." (Fed. Habeas Pet. § 45). He also alleged
that "[t]he death penalty is imposed in this case pursuant to a
pattern and practice ... to discriminate on the grounds of race
3 ~J
Phe full voir dire of ‘each pro
District: Court's opinion. app. B.y
spective juror appears in the
S80 F.Supp. at. 395 n.33.
vss. in the administration of capital punishment ... [in violation"
of] the Eighth Amendment and the due process and equal protection
clauses of the Fourteenth Amendment." (Fed. Habeas Pet. { 51).
The District Court held that "the Eighth Amendment issue has
been resolved adversely to [petitioner] in this circuit," based
upon prior precedent, App. B., 580 F. Supp. at 346. It rejected
petitioner's Fourteenth Amendment claim after extensive discus-
sion on the ground that "petitioner's statistics do not demon-
strate a prima facie case." Id. at 379.
On appeal, petitioner contended that in rejecting his Eighth
Amendment claim, the District Court "misread both Gregg v.
Georgia, {428 0.8. 153 {(1976)}"..., and Purman Vv. Georgia, 408
U.S. 238 (1972), upon which Gregg is bonaed (En Banc Brief
at 25). Petitioner also maintained that his "comprehensive
statistical evidence on the operation of Georgia's capital
statutes ... constitutes just the sort of 'clear pattern,
unexplainable on grounds other than race,’ Arlington Heights v.
Metropolitan Housing Authority, 429 U.S. 232, 266 (1977), that
the Supreme Court has held to establish an Equal Protection
violation." (En Banc Brief at 27). The Court of Appeals, as
noted earlier, held that, even assuming the validity of peti-
tioner's evidence, it would not suffice to prove an Eighth Jr
Fourteenth Amendment violation. ee App. A., 753 F.2d at 8586-87,
B. Petitioner alleged in his federal habeas petition that
"[t]he State's deliberate failure to disclose an agreement or
understanding between the State and the jail inmate Offie td
vans
... violated the due process clause of the Fourteenth Amendment.
(Fed. Habeas Pet. § 15). the District Court granted relief on
this claim, holding that the "disclosure of the promise OF
favorable treatment and correction of the other falsehoods in
i
Evans' testimony could reasonably have affected the jury's
verdict on the charge of malice murder." App. B., 580 F. Supp.
at 384.
On appeal, petitioner defended the propriety of the District
Court's ruling under the Due Process Clause. (En Banc Brief,
| 9-15). The Court of Appeals reversed, reasoning that "(1) there
was no promise in this case, as contemplaned by Giglio; and (2)
in any event, had there been a Giglio violation, it would be
harmless.” App. A., 753 P.2d at 833.
C. Petitioner alleged in his federal habeas petition that
"(t]he trial court's charge to the jury regarding presumption of
intent contravened petitioner's due process rights under the
Fourteenth Amenfrent (Fed. Habeas Pet. § 29). The District
Court, conceding that "[t]he charge at issue ..., 1s. virtually
identical to those involved in Franklin [v. Francis, 720 F.24
“1206 {($ith Cir.» 1983), aff'd, g.sS. + 53. 0.85.L.W. 4495
(0.3. April 30, 1985)] and Tucker |v. Francis, 723 P.24 1504
(13th Cir. 1984), vacated and reh'g en banc pending], chose "to
follow Tucker v. Francis," rather than Franklin and concluded
that "the instruction complained of ... created only a permissive
inference." App. B., 580 F. Supp. at 387.
On appeal, petitioner contended that "(t]he jury instruction
here created a mandatory presumption, and thus the District Court
erred when it concluded that no Sandstrom violation was present.”
(En Banc Brief at 24). The Court of Appeals reasoned that "in
the course of asserting his alibi defense McCleskey effectively
| conceded the issue of intent, thereby rendering the Sandstrom
| violation harmless beyond a reasonable doubt." App. A., 753 F.2d
| at 904.
| BD. Petitioner alleged in nis federal habeas petition that
"(t]he trial court improperly excused two prospective jurors
a | without adequate examination of their views rega ding capital
punishment in contravention of petitioner's Sixth, Eighth and
Fourteenth Amendment rights." (Fed. Habeas Pet. ¢ 82). The
District Court held that "[pletitioner's argument that the
exclusion of death-scrupled jurors violated his right to be tried
by a jury drawn from a representative Cross section of his
community has already been considered and rejected in this
circuit. Smith v. Balkcom, 660 F.2d 573, 582-83 (5th Cir. Unit B
7981)." App. B, 580 PF. Supp. at 396.
On appeal, petitioner urged the Court of Appeals to recon-
sider its prior holding in light of Grigsby v. Mabry, 569 PF.
Supp, 71273 (E.D. Ark. 1983), and Heeten v. Garrison, 578 F. Supp.
1164 (W.D. N.C. 24984). (En Banc Brief at 70). The Court of
Appeals declined to do so), remarking that "([w]hatever the merits
of [Grigsby and Keeten], they are not controlling authority for
this Court.™ Wpp. A., 753 7.24 at 901,
REASONS FOR GRANTING THE WRIT
This case was dominated below by the petitioner's evidence
that race continues to play a role in Georgia's capital sentenc-
ing system. We therefore turn first to the important legal
issues related to petitioner's racial discrimination claim.
Nevertheless, we commend to the Court's attention the additional
constitutional questions posed by petitioner's case.
* * * *
No single national failing has more deeply tarnished the
promise of our Constitution than our tortured history of
tolerance for racial discrimination, especially in the adminis-
tration of criminal justice. Whether embodied explicitly in the
language of statutes -- slave codes, slack codes, Jim Crow laws
-- or reflected in customs and practices permitting "unjust and
illegal discriminations between persons in similar circumstances 7
1 .
material to their rights,” Yick Wo v. Hopkins, 118 U.S. 356
(1886), the official acceptance of different treatment of persons
according to their race has compromised eneTytiing we as a nation
profess about equal justice under law.
In the past three decades, the nation has, by addressing its
racial problems, achieved subtantial progress toward ridding our
public life Of the talnt of racial injustice. Qur hardwon
achievements have come only when we have summoned the collective
will to face facts, and deal directly with the hard problems
posed by those facts.
At the time of Furman v. Georgia, 408 U.S. 238 (1972), this
Court appeared deeply troubled by the perception, "based on ...
almost daily exposure to the facts and circumstances of hundreds
and hundreds of federal and state criminal cases involving crimes
for which death is the authorized penalty," 408 U.S. at 313
(White, J., concurring), that America's capital punishment
statutes, though fair on their face, were in practice so perva-
sively infected with racial bias that the death sentence was
"wantonly and ... freakishly imposed." 408 U.S. at 310 (Stewart,
J., concurring). The decision in Furman gave states an opportu-
nity to fashion new laws, statutes that all hoped might "minimize
the risk of wholly arbitrary and capricious” sentencing. Greg
vy, Georgla, guprs, 423 0.S. at 138. When in 1976, the Court
upheld the new laws on their face, it did so on the assumption
that their procedures would suffice to eliminate old problems. To
indulge that assumption was appropriate: state statutes properly
come before the Court with a strong presumption of constitutiona-
lity, and the Court -- as Justice White wrote -- was therefore
unwilling "to interfere with the manner in which Georgia has
chosen to enforce tach laws on what is simply an assertion of a
lack of faith in the ability of the system of justice to operate
in a fundamentally fair manner." Gregg v. Georgia, supra, 428
U.S. at 226 (White, J., concurring in the judgment).
Petitioner McCleskey now brings before the Court something
profoundly different from a mere "assertion of a lack of faith"
'| Through the work of Professor Baldus and his colleagues, peti-
tioner has adduced proof that, despite Georgia's revised proce-
dures, race continues to play an important part in determining
which Georgia capital defendants will live and which will die.
Baldus' studies constitute the most thorough and illuminating
research into capital sentencing undertaken in this generation.
Their message is unequivocal: the influence of race is real, it
is persistent, and it operates as powerfully as many of Georgia's
statutory aggravating circumstances.
The opinion of the Court of Appeals below assumes peti-
tioner's studies to be valid. It thus accepts that racial
factors are systematically at work in Georgia's capital system,
determining life and death. Yet it declares that the Constitu-
tion remains unimplicated by these facts. In reaching this
extraordinary conclusion, the Court of Appeals articulates
several principles that independently warrant certiorari, among
them: (i) that Eighth Amendment claims of racial discrimination
| and arbitrariness must hereafter be accompanied by proof of
specific intent or motive; (ii) that condemned inmates challeng-
ing racial discrimination in the administration of a state's
capital sentencing system must produce, as part of their prima
facie case, statistical proof so strong that it not only "compels a conclusion" of discriminatory intent but addresses every
| possible sentencing variable so as to establish that "purposeful
discrimination ... can be presumed to permeate the system" and to
have motivated the actors involved in each particular case; and
(111) that future factual hearings will not be warranted by
"generalized statistical studies," no matter how powerful, unless Fy ~~
or
they can demonstrate that the particular inmate's death sentence
was brought about by conscious racial bias.
9
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The Court should grant certiorari to examine each of these
subtantial departures from prior law. But more fundamentally,
review is warranted to determine whether the Court below, DY
erecting artificially high burdens of proof and barriers to
relief, has effectively closed off the troubling subject of
racial discrimination from appropriate constitutional review. A
full examination of petitioner's charges of racial discrimination
in Georgia's capital sentencing system would not be painless; out
in the long run it would prove more healthy, and more consistent
with our constitutional commitment to equal justice under tav,
than avoiding the problem by refusing to see it,
This country's interests would not be well served by another
Plessy v. Ferguson; the administration of capital statutes cannot
afford a second Dred Scott. Yet at bottom, the holding in
McCleskey v. Kemp appears to De just that: systematic racial
discrimination in capital sentencing -- at least some level of
discrimination -- can and will be tolerated. The jurisdiction of
this Court extends to very few questions more important than this
one.
I.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER A CONDEMNED INMATE
WHO CAN DEMONSTRATE SYSTEMATIC
RACIAL DIFFERENCES IN CAPITAL
SENTENCING OUTCOMES MUST ALSO PROVE
SPECIFIC INTENT OR PURPOSE TO
DISCRIMINATE IN ORDER TO ESTABLISH
AN EIGHTH AMENDMENT VIOLATION
The primary focus of this Court's Eighth Amendment concern
in capital cases has always been upon the results of the sentenc-
ing process: the Eighth Amendment is violated Lf "there. ls no
meaningful basis for distinguishing the few cases in which
[capital punishment] ... is imposed from the many cases in which
it is not," ‘Purman v. Georgia, 408 U.S. 238, 313 (1972) (White,
|
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J. concurring); 1é. at 386 (Douglas, J., concurring) .("[t}he
high service rendered by the 'cruel and unusual' punishment
clause ... is to require legislatures to write penal laws that
are evenhanded, nonselective, and nonarbitrary, and to require
judges to see to it that general laws are not applied sparsely,
selectively, and Spoteily to unpopular groups").
Such a focus is natural, for the arbitrariness and capri-
ciousness condemned in Furman are inherently deficiencies that
can afflict a system irrespective of conscious choice or deci-
sion: to be "struck by lightning is cruel and unusual," Furman
v. Georgia, supra, 408 U.S. at 309 (Stewart, J., concurring),
regardless of whether one posits a malevolent deity or an
indifferent universe.
Even when the Court's attention has turned toward matters of
procedure, the ultimate aim has been to require procedures that
will "minimize the risk of wholly arbitrary and capricious
action." Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of
Stewart, Powell & Stevens, JJ.). Accord Woodson v. North
Carolina, 428 U.S. 280, 305 (1976) (opinion of Stewart, Powell &
Stevens, JJ.); Lockett v, Ohio, 438 U.S. 586, 607 (1978) {(plura-
lity opinion); Beck v. Alabama, 447 3.5, 825, 637-38 (1980):
Eddings wv. Oklahoma, 455 0.8. 104,. 1718 (1982) (O'Connor, dy
concurring). The Eighth Amendment burden to ensure evenhanded
sentencing outcomes rests clearly on the State: "if a State
wishes to authorize capital punishment it has a constitutional
responsibility to tailor and apply its law in a manner that
| avoids the arbitrary and capricious infliction of the death
| penalty." Godfrey v. Georgia, 446 U.S. 420, 428 {1980).
The Court of Appeals has now held that proof of arbitrary
and capricious results are no longer sufficient to invoke Eighth id
Amendment protection -- at least if that caprice takes the form
of racial discrimination. The Court acknowledges that "cruel and
unusual punishment cases do not normally focus on the intent of
the governmental actor," App. A., 753 F.2d at 892, yet it reasons
that where racial discrimination is the gravamen of a condemned
inmate's complaint, intent and motive are a "natural congbnent?
of the proof that discrimination actually occurred. Id. Nothing
in this Court's Eighth Amendment caselaw suggests that such a
component is a necessary element of "a pattern of arbitrary and
capricious sentencing like that found unconstitutional in
Furman." Gregg v. Georgia, supra, 428 U.S. at 195 n.46 (opinion
of Stewart, Powell & Stevens, JJ.). To the contrary, Justice
Douglas in Furman expressly disclaimed the impossible "task ...
[of] divin[ing] what motives impelled these death penalties.”
Furman v. Georgia, supra, 408 U.S, at 253. .And the Court in
Godfrey surely did not insist upon convicting either Godfrey's
jury or the Georgia Supreme Court of conscious discriminatory
animus.
The evil against which the Eighth Amendment as construed in
Furman and its progeny seeks to guard is the unequal treatment of
equals in the most important sentencing decision our society
permits. Petitioner's studies have found that race plays an
independent role in cases that are otherwise equal, after chance
and over 230 other factors have been taken into account. Locating
precisely where and how, consciously or unconsciously, race is
influencing the literally thousands of actors involved in capital
sentencing -- prosecutors, judges, jurors who assemble to make a
single decision in a single case, only to be replaced by other
jurors in the next case, and still others after them ~-- 1s
manifestly impossible. Yet "{i]ldentified or unidentified the
results of the unconstitutional ingredient of race, at a signifi-
cant level in the system, 1s the same on the black defendant. The
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inability to identify the actor or agency has little to do with
the constitutionality of the system.” 83. F.2d at" 818,
(Hatchett, J., dissenting in part and concurring in part).
The Court should therefore grant certiorari to determine
whether proof of discriminatory intent is necessary to establish-
ing an Eighth Amendment claim when substantial racial disparities
in sentencing outcome have been proven by petitioner and assumed
by the Court of Appeals.
11.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER THE EXTRAORDINARY
STANDARD OF PROOF IMPOSED BY THE
COURT OF APPEALS IN CASES INVOLVING
STATISTICAL EVIDENCE OF DISCRIMINA-
TION IN CAPITAL SENTENCING CONFLICTS
WITH PRIOR DECISIONS OF THIS COURT
‘OR THOSE OF OTHER CIRCUITS
In Washington v., Davis, 426 U.S. 229 (1976), and Village of
Arlington Heights v. Metropolitan Housing Development COrp., 429
U.S. 282 (1977), tne Court held that under the Fourteenth
Amendment, "official action will not be held unconstitutional
solely because it results in a racially disproportionate
impact.... Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.”
Arlington Heights, supra, 429 U.S. at 265-65. .See, e.g., Hunter
v. Underwood, Bes, , 53 U.S.L.W. 4468, 448% {(U.S8., April
16, 1985). Nevertheless, as Justice Stevens noted, "the burden
of proving a prima facie case may well involve differing eviden-
tiary considerations" depending upon the factual context in which
the claim arises. Washington v. Davis, supra, 426 U.S. at 253.
(Stevens, J., concurring). "[I]n the case of governmental action
which is frequently the product of compromise, of collective
decisionmaking, and of mixed motivation ... [i]t [would be]
unrealistic ... to require the victim of alleged discrimination
“AB
to uncover the actual subjective intent of the decisionmaker."
Id. Accord Arlington Belghts, supra, 429 U.S. at 265; Hunter v.
Underwood, supra, 53 U.S.L.W. at 4463.
In such contexts, the Court has demanded "a sensitive
inquiry into such circumstantial and direct evidence of intent as
may be available.” Arlington Heights, supra, 429 U.S. at 266.
"Necessarily, an invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the
fact, if it is true, that the law bears more heavily on one race
than another. It is also not infrequently true that the discri-
minatory impact ... may for all practical purposes demonstrate
unconstitutionality because in various circumstances the discri-
mination is very difficult to explain on nonracial. grounds."
Washington v. Davis, supra, 426 0.8. at 242, In a series of
related cases, the Court has stressed the central role that
statistical evidence may play in proving discriminatory intent.
See, e.g., Hazelwood School District v. United States, 433 U.S.
299, 307 (1977); (Ditle VII case: "(wlhere gross statistical
disparities can be shown, they alone in a proper case constitute
prima facie proof of a pattern or practice of discrimination”);
Mayor of Philadelphia v. Educational Equality League, 415 U.S.
605, 620 (1973) (equal protection case: "statistical analyses
have served and will continue to serve an important role as one
indirect indicator of racial discrimination wie Fon See also
Castaneda v. Partida, 430 U.S. 482, 493-94 (1977).
The lower federal courts on whole have followed this Court's
lead, admitting statistical evidence on the issue of discrimina-
7 tory intent in a wide variety of appropriate contexts. See
e.g., EEQC v, Federal Reserve Bank of Richmond, 698 F.2d 633 (4th
Cir. 1983); Wilkins v. University of Houston, 654 F.2d 388 (5th
Cir. 1981), vacated and remanded on other grounds, 459 U.S. 80S
(1982); EEOC v., Ball Corp., 881 P.24 531 (6th Cir. 71981); Coble
v. Hot Springs School Distict No. 6,.682 P.24 721 (8th Cir.
1982); Eastland v. TVA, 704 F.2d 613 (11th Cir. 1983); Segar v.
Smith, 738 F.2d 1249 (D.C. Cir. 1984); Vuyanich v. Republic Nat'l
Bank, 505 F. Supp. 224 (N.D. Tex. 1930), vacated on other
grounds, 723" F.241195 (3th Cir. 1984).
This Court has also outlined an appropriate order of proof
in those cases in which discriminatory intent is at issue. The
plaintiff is initially required to present a prima facie case,
establishing discrimination by a preponderance of the evidence.
'| The defendant may then explain or justify its conduct, or may
seek to discredit the plaintiff's proof. Finally, the plaintiff
may reply to the defendant's reputtal, showing that the defen-
dant's justifications or explanations do not defeat the inference
of intent. See, e.g., Texas Dept. of Community Affairs v.
Burdine, 150 U.8. 248 (1981).
The Court of Appeals' opinion in this case is, to say the
least, deeply inhospitable toward this Court's major teachings on
| the use of statistical evidence and on the appropriate uses of
such evidence to establish a prima facie case. It 1s, moreover,
inconsistent with the very concept of a prima facle case. For
if, as the Court of Appeals held, a prima facie case of discrimi-
nation must be so overwhelming as to "compel a conclusion” of
| discriminatory intent -- if, as the Court of Appeals also held,
it must anticipate and dispel in advance every merely possible
non-racial explanation -- then the so-called "prima facie" case
is logically irrebutable and required to be so.
The Court of Appeals' decision is also in direct conflict
with many of the lower court decisions interpreting this Court's
i| teachings. The lower federal courts, in statistical cases, have
developed a series of criteria for establishing a prima facie
case of discriminatory intent. They have been virtually unani-
mous that a standard of perfection is neither attainable nor
required.
" IA] plaintiff's Initial proof must be :
measured against the more generalized function
standard that the Supreme Court has elaborated
in Teamsters v. [United States, 431 U.S. 324
(3.977 )] ‘eos 845358; Furnce Construction Corp.
v. Waters, 438 0.8. 567, 577 41978) and
Buraine, supra, 450 U.S. at 253-254. These
cases nold that a sufficient prima facie case
is made out when the plaintiff shows a
disparity in the relative position or treat-
ment of the minority group and has eliminated
'the most common nondiscriminatory reasons for
the observed disparity.' Burdine, supra, 450
U.S, at 1253-254."
Segar v. Smith, supra, 738 F.2d at 1273. See e.49., Vuyanich v.
Republic Nat'l Bank, supra, 505 F. Supp. at 273-74.
| Realistically, the standard of proof to which the Court of
Appeals held petitioner is beyond the power of any party to meet.
Minor refinements of Baldus' studies are certainly possible. A
study that would, however, (1) account for every conceivable
nonracial influence; (ii) eliminate all random factors; {il1i)
{denti fy every malevolent actor; and (iv) demonstrate the
quantitative impact of racially invidious intent on each con-
demned inmate's case, is simply not possible. The Court of
Appeals offered no real justification for setting petitioner's burden so high; it is as if the Court inexplicably determined
flatly to foreclose any further racial challenges to the applica-
tion of capital statutes. Whether so meant Or not, the ¢pinlion
will undoubtedly have precisely that effect in practice.
The Court of Appeals' opinion reads more generally, however,
The opinion does not purport to limit itself to capital cases:
| its potential reach appears to include all equal protection cases
based upon statistical evidence. Yet its announced standards of
| proof conflict with virtually every other decided case involving
i - 49 -
claims of racial discrimination. If racial discrimination in
capital sentencing ought to be judged by the same standards
applicable in other areas, this Court should grant certiorari to
review an opinion so fundamentally out of line with dozens of
circuit court decisions, and with the many opinions of this Court
explicating the proper burden of proof for a party attempting to
demonstrate discrimination.
If, on the other hand, racial discrimination in capital
punishment is to be judged by some standard dramatically more
strict than that applicable in other areas of the law, the Court
should grant certiorari to say so clearly, and to explain the
constitutional basis for such a distinction.
III.
THE COURT SHOULD GRANT CERTIORARI TO
REVIEW THE COURT OF APPEALS' HOLDING
THAT THE STATE'S NONDISCLOSURE OF AN
INFORMAL PROMISE OF FAVORED TREAT-
MENT DOES NOT IMPLICATE THE DUE
PROCESS REQUIREMENT OF GIGLIO V.
UNITED STATES
This case presents an important question of federal consti-
tutional law on which, as the Court of Appeals noted, this Court
has "never provided definitive guidance." App. A., 753 P.24 at
884). At issue is whether the due process clause, as interpreted
| by this Court in Napue v. Illinois, 360 U.S. 264 (1959), and
Giglio v. United States, 405 U.S. 130 (1972), requires the State
to correct false testimony of a key witness regarding the State's
informal promises of favored treatment in exchange for the
witness's testimony. Here, because the promise or understanding
which existed between a police detective and the witness was an
informal agreement, the Court of Appeals concluded that its
nondisclosure to the jury did not infringe petitioner's due
process rights. App. A., 573 F.2d at 834.
The Court of Appeals' decision on this question 1s contrary
to that of a number of other circuits which have concluded that
the due process clause is violated by the State's failure to
correct false testimony regarding undisclosed promises of
benefit, informal or tentative in nature. The rationale for the
prevailing rule is stated in Boone v. Paderick, 541 F.2d 447 (4th
Cir. 1976). There, the Fourth Circuit considered the State's
failure to correct false testimony regarding a promise by a
police detective to "use his influence with the prosecuting
attorney" regarding pending charges and concluded:
[R]ather than weakening the significance for
credibility purposes of an agreement of
favorable treatment, tentativeness may
increase its relevancy. This is because a
promise to recommend leniency (without
assurance of it) may be interpreted by the
promisee as contingent upon the quality of the
evidence produced -- the more uncertain the
agreement, the greater the incentive to make
the testimony pleasing to the promisor.
Ié. at 451. Accord Campbell v. Reed, 594 F.2d 4, 6 {deh Cir.
1979) (witness was advised that "everything would be all right").
The other Circuit Courts which have considered this question
have all adopted the same rule espoused by the Fourth Circuit in
Boone. E.g., DuBose v. Lefebre, 619 F.2d 973, 977 {28 Cir. 1980)
(prosecutor agreed to "do the right thing" for witness regarding
pending indictment); Blanton v. Blackburn, 494 F.Supp. 895, 901
(M.D, ‘La, 1980), aff'd, 654. 7,24 719 (5th Cir. Unit A. 1980)
(imprecise agreements reached with four of five key witnesses);
United States v. Bigeleisen, 625 F.2d 203, 205 (8th Cir. 1980)
(prosecutor agreed to "make witness's cooperation known to
authorities"); United States v. Butler, 567 F.2d 885, 888 (9th
Cir. 1978) (agents told witness "they were going to do everything
they could to help him"). Chief Judge Godbold, writing in
dissent below, urged adoption of a rule similar to that applied
by the other circuits:
. The proper inquiry is not limited to formal
contracts, unilateral or bilateral, or words
of contract law, but "to ensure that the jury
knew the facts that might motivate a witness
in giving testimony.’
App. A., 753 F.24 at 907.
The Eleventh Circuit's contrary rule that false testimony
regarding an informal agreement by a government agent does not
invoke Giglio is also inconsistent with this Court's precedent.
The benefit offered to the witness in Napue was no more forma-
lized or certain than the benefit offered to the witness in the
38
present case. The prosecutor told the witness in Napue that "'a
recommendation for a reduction of his ... sentence would be made
and, if possible, effectuated." Napue v. Illinois, 350°U.58. at
266. Napue makes clear that the due process clause applies to
situations other than those involving false testimony regarding
formal, unqualified agreements.
38 1 4 + . 1 ~~ K 1 a=. ‘
The Eleventh Circuit's description of the benefit offered to the
witness as "marginal" in nature does not apparently refer to the
fact that the promise was made by a police detective rather than
a prosecutor. In Williams v. Griswald, 743 F.2d 1533 (11th Cir.
1984), the Eleventh Circult has recently reaffirmed its long-
standing rule, derived from this Court's decision in Pyle v.
Kansas, 317 U.S. 213 (1942), that false testimony regarding a
promise by a police officer contravenes the due process clause,
Napue, as well as the circuit court cases which have
followed it, show that the informal nature of the promise to
Of fie Evans is not a basis for holding the due process clause
RAINE This Court should grant certiorari to resolve the
conflict in the circuits on this issue.
Relving on the fact that the jury was advised that Evans had
a prior criminal record, the Court of Appeals alternatively held
that the failure to correct his false testimony about the nature
and circumstances of the pending escape charge and the State's
promises concerning it was harmless error. That decision places
the Eleventh Circuit in conflict with the Second Circuit's ruling
in Annunziato v. Manson, 566 F.2d 410, 414 (2nd Cir. 1977), that
under Napue and Giglio, "the jury should be informed that the
witness hopes for leniency on current charges and that the
prosecution has a present leverage over the fate of the witness.”
Informing jurors of a witness's past crimes does not indicate to
the jury his present motivation to lie, which is the underlying
39 A subsequent decision of the Eleventh Circuit suggests that the
"McCleskey rule is that Giglio does not apply unless there is
more Ethan one criminal charge pending against the witness, and,
since the witness herein was facing 'a lone escape charge,' the
due process clause afforded no protection." Haber v. Wainwright,
786 F.24 1530, 1524 n.7 {11th Cir, 1983). Of course, such a rule
is contrary to the facts and underlying purposes of Napue and
Giglio. In Napue, the witness was offered a recommendation for
reduction of nis "lone" murder charge; a witness may obviously
have a motive to lie when promised leniency on a single charge
pending against him.
Nor is the Court's characterization of the promise as "marginal"
justified if it is meant to refer to the potential sentence tnat
Evans faced because of the escape charge pending against him.
That charge carried a potential sentence of 5 years imprisonment
and/or ai$5,000 £ine, '18°0.8.C. § 751,
40
purpose of the Napue/Giglio line of cases. Just as the Eleventh
Circuit failed to recognize that an informal agreement with the
State can provide a witness with a motive to lie, so it failed to
recognize that under the due process clause, a jury must be
apprised of false testimony which hid from the jury that motive
to. lie. Certiorart should also be granted on this aspect of the
case.
IV.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER IMPORTANT, UNRESOLVED
QUESTIONS REGARDING HARMLESS ERROR
UNDER SANDSTROM V. MONTANTA AND
FRANCIS V. FRANKLIN
A majority of the Court of Appeals properly concluded that
the trial court's instruction on the presumption of intent in
this case was Ry Tea bt na th It went on to hold, however,
that "where the State has presented overwhelming evidence of an
intentional killing and where the defendant raises a defense of
nonparticipation in the crime rather than lack of mens rea, a
gain in dissent, Chief Judge Godbold noted the critical nature
of witness Evans' testimony: "Co-defendant Wright was the only
eyewitness. He was an accomplice, thus his testimony, unless
corroborated, was insufficient {under Georgia law] to establish
that McCleskey was the triggerman.... Evans is not a minor or
incidental witness." Evans' testimony, describing what McCleskey
"confessed to him, is the corroboration for the testimony of the
| only eyewitness, Wright." App. A., 753 F.2d at 907.
41 ; : ; His : a ;
The instruction given in petitioner's trial was indistinguishable
from that found unconstitutional in Francis v. Franklin. The
instruction reads, in relevant part:
One section of our law says that the acts of a
person of sound mind and discretion are presumed
to be the product of the person's will, and a
person of sound mind and discretion is presumed
to intend the natural and probable consequences
of his acts, but both of these presumptions may
be rebutted.
i App. B., 580 P. Supp. at 384 n.21 (emphasis omitted).
Sandstrom violation on an intent instruction such as the one at
issue here is harmless beyond a reasonable doubt." App. A., 753
42
F.2d at 904.
This decision squarely raises the basic question left open
in Connecticut v. Johnson, 460 U.S. 73 (1983), Koehler v. Engle,
0.8. y 80 L.B&.24 1 (1984), and Francis v., Franklin,
8.8. , 53 U.S. L.W., 4495 {(U.S., April 30 1985): whether
a jury charge that unconstitutionally shifts a burden of persua-
sion to the defendant on an essential element of an offense can
ever be harmless. The facts of the case present a second
question of importance and general applicability deriving from
the first: whether, if "harmless error" ever does excuse a
Sandstrom violation, it can do so where the defendant chooses to
put the prosecution to its proof on the issue of intent, without
conceding or addressing evidence directly to that issue, because
he undertakes primarily to establish a defense of nonparticipa-
tion.
Here the charge was malice murder: killing with the
requisite intent. McCleskey denied that he was the killer. The
prosecution sought to prove his identity as the killer by
circumstantial evidence, coupled with suspect testimony from a
co-defendant and a jailhouse inmate that McCleskey had admitted
the killing toc them. The victim, a police officer, was shot at
some distance after he had entered and half-crossed the floor of
a store with a robbery in progress. No one saw the shooting. See
App. B., 380 P.Supp. at .182,
42 Judge Johnson, writing for the dissenting judges, noted that the
facts did not support the characterization of the evidence
against petitioner as "overwhelming." No one saw the shooting;
the murder weapon was never recovered; the shooting did not occur
at pointblank range; and the officer was moving at the time of
the shooting... App. A., 753 F.24 at S18.
In this situation, the question of the killer's intent
remained very much at issue, whether McCleskey was or wasn't the
killer. The prosecutor made lengthy arguments to the jury on the
evidence regarding intent. (Trial Tr., 974-75). Defense counsel
countered with arguments that "the defense doesn't have to prove
anything to you" (Trial Tr., 909) and that the State's witnesses
were not credible. (Prizl Or., 911, 921, 336, 938-33, 943,
948-49, 951, 952). The jury was charged -- and then, at its
request, returned for reinstruction =-- on the elements of malice
murder. (Trial Tr. 1007). Its job was to decide whether each of
those elements, including intent, was established by the evidence
beyond a reasonable doubt. However, the unconstitutional
instruction deemed "harmless" by the Court of Appeals permitted
the jury to find intent without considering the evidence.
Reference to the "overwhelming" weight of the evidence as a
test of harmless error is therefore singularly inappropriate
here. The jury might well have relied upon the presumption,
rather than the evidence, to conclude that the petitioner was
guilty of malice murder. As Justice Blackman indicated in
Connecticut v. Johnson,
[tlhe fact that the reviewing court may view
the evidence of intent as overwhelming is then
simply irrelevant.
460 U.S. at 86. The present case provides an excellent vehicle
for deciding whether the plurality opinion in Johnson or the
majority opinion of the Court of Appeals below states the proper
constitutional rule.
In any event, the Court of Appeals rendered its decision on
the point without the benefit of this Court's opinion in Francis
| v. Franklin, U.S. , 83 0.8.L.W. 4433 (U.S, April 30,
1985). In Francis, the Court recognized that the Jury's return
for reinstruction on the elements of malice and accident "lent
|
substance to the conclusion that the evidence of intent was far
from overwhelming." Id. at 4500-01. Petitioner's jury, after
approximately two hours of deliberation, also asked the trial
court for further instructions on malice. The Court of Appeals
made nothing of the fact. At the very least, this Court should
accordingly grant the petition for certiorari, vacate the Court
of Appeals' decision, and remand the case for reconsideration in
light of Francis.
ve.
THE COURT SHOULD GRANT CERTIORARI ON
THE ISSUES COMMON TO THIS CASE,
GRIGSBY V. MABRY, AND KEETEN V.
GARRISON
In Witherspoon v. Illinois, 3931 U.3.:.510, 320 n.18 (1968),
this Court reserved the question whether the exclusion for cause
of prospective jurors who could fairly decide a capital defen-
dant's guilt or innocence, solely because of their inability to
consider the death penalty, might create a "jury ... less than
neutral with respect to guilt." Since that time, after thorough
evidentiary hearings, two federal district courts have found that
such juries are in fact "guilt-prone"” and unrepresentative in a
Sixth Amendment sense, and that the exclusion of such jurors at
the guilt phase of a bifurcated capital trial deprives a defen-
dant of the constitutional rights to a fair jury and one drawn
from a representative cross-section of the community. See
Grigsby v. Mabry, 569 PF. Supp. 1273 (E.D. Ark. 1983); Keeten v.
Garrison, 578 F. Supp. 1164 (W.D.N.C. 1984). The Grigsby case
was affirmed by the Eighth Circuit en banc. Grigsby v. Mabry,
758 - P.24 226 {8th Cir. 198S).i{en banc). The Keeten Case was
reversed by a panel of the Fourth Circuit, Ke (D
te 3 < Garrison,
742 F.2d 129 (4th Cir. 1984), and a certiorari petition to review
the latter decision has been filed, O0.T. 1984, No. 84-5187
In its decision below, the Eleventh Circuit aligned itself
with the Fourth Circuit's holding in Keeten and opposed itself to
the Eighth Circuit's holding in Grigsby. This Court should grant
certiorari to settle the conflict among the circuits.
CONCLUSION
The petition for certiorari should be granted.
Dated: May 28, 1985. Respectfully submitted,
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
* JOHN CHARLES BOGER
DEVAL L. PATRICK
99 Hudson Street
New York, New York 10013
(212) 219-1900
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 98104
ANTHONY G. AMSTERDAM
New York University
School of Law
40 Washington Square South
New York, New York 10012
* ATTORNEY OF RECORD ATTORNEYS FOR PETITIONER
BL 12 hn Lois
\_ ~ John Charles Boger
WE! x Jp
NO. 84-6811
IN THE SUPREME COURT OF THE UNITED STATES
?
OCTOBER TERM, 1984
WARREN McCLESKEY,
Petitioner,
Vv.
RALPH M. KEMP, SUPERINTENDENT,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF IN OPPOSITION FOR THE RESPONDENT
MARY BETH WESTMORELAND
Assistant Attorney General
Counsel of Record for Respondent
MICHAEL J. BOWERS
Attorney General
MARION O. GORDON
First Assistant
Attorney General
WILLIAM B. HILL, JR.
Senior Assistant
Attorney General
Please Serve:
MARY BETH WESTMORELAND
132 State Judicial Bldg.
40 Capitol Square, S.W.
Atlanta, Georgia 30334
(404) 656-3349
-~
QUESTIONS PRESENTED
1.
Did the Eleventh Circuit Court of Appeals properly conclude
that the Petitioner had failed to show that the death penalty
in Georgia was applied in an A1BLELALY or capricious manner?
II.
Did the Eleventh Circuit Court of Appeals properly conclude
that Petitioner had failed to prove racial discrimination in
Georgia's capital sentencing system?
TIX.
Did the Eleventh Circuit Court of Appeals properly conclude
that there was no violation of Giglio v. United States or that
any such violation was harmless?
iv.
Did the Eleventh Circuit Court of Appeals properly conclude
that the trial court's instruction on intent was, at most,
harmless error?
Ve.
Did the Eleventh Circuit Court of Appeals properly conclude
that Petitioner was not entitled to relief on his challenge to
the "death-qualification" of the trial jury?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. «eesvsssvessrscssnsnssssnnnsrn i
STATEMENT OF THE CASEussvsssvessssessnncesnssnecen i
STATEMENT OF THE PACTSsseccerssssecssssecssssescen 4
REASONS FOR NOT GRANTING THE WRIT
Tr, THE ELEVENTH CIRCUIT COURT OF
APPEALS PROPERLY CONCLUDED THAT
THE PETITIONER FAILED TO SHOW
THAT THE DEATH PENALTY WAS
APPLIED IN EITHER AN ARBITRARY
OR DISCRIMINATORY MANNER.::ecosescscanse 7
II. THERE WAS NO VIOLATION OF
GIGLIO V. UNITED STATES IN THE
INSTANT CASE ess vossssossonsns
sssnsessscsiss
29
III. THE ELEVENTH CIRCUIT COURT OF
APPEALS PROPERLY CONCLUDED THAT
ANY ALLEGED BURDEN-SHIFTING CHARGE
WAS HARMLESS BEYOND A REASONABLE
DOUG Ts cov ss snsdsvdinssissinsssnssrsmsesnsnee 38
Iv. THE ELEVENTH CIRCUIT COURT OF
APPEALS PROPERLY DENIED RELIEF ON
PETITIONER'S ASSERTION THAT THE
JURY WAS IMPERMISSIBLY QUALIFIED
AS TO CAPITAL PUNISHMENT ..csoeescccencsse 41
CONCLUSION sees ss srsvessnss
sssssssnsser
esssssnssses
44
CERTIFICATE OF SERVICE csvset sssesssvess
ssvessnsesey
45
ii.
TABLE OF AUTHORITIES
Alcorta v. Texas, 355 U.S. 28 (A857 ess ene rane» 32,34
Blalock v. State, 250 Ga. 441,
298 S.E.24 477 {1983 )csvninnir’
vssrsnnvssr
sesnnes 36
Chapman v. California, 386 U.S. 18 {1967 ee vnnines 38
Connecticut v. Johnson, 460 U.S. 73 (1083) cae esy.38,39,40
Engle v. Koehler, 707 Foaa 24Y (6th Cir. 1983),
aff'd by an equally divided court,
Teese gn104s. Ct. 1673 (1984)
(Der CULiBM)ecvsssvsressessnsncasssnsssnesnsy
40
Enmund v. Florida, 458 U.S. 18 01087) oc snennnnnn 14,419
Francis v. Franklin, B.S. '
105 Se Ct. 1965 1985) csv vssassnennse
®e © & © Oo ® © & °° 38
Franklin v. Francis, 720 F.24:1206
(1ith Cir. 1083) cre ossssver
nnssssssce
nsnsessnn 38
Giglio v. United States, 405 0.3. 150 C1973). 404+. P2SEIN
Godfrey v. Georgia, 446 U.S. 420. 01980) oc sn veenss AI
Gregg v. Georgia, 428 U.S. 153 1078) sree eanes 19,26
Grigsby v. Mabry, 758 F.24 226
(8th Cir. 1985) (en bancC)eeeeess. TA TE 1)
Keeten Vv. Garrison, 742 F.2d 129
(4th cir. 1984) ee © ® oo © © © © 86 ® © 8 © 0 Oo & Oo 0 0 ee © 8 © © 0 5 0 & oO 41
Lamb v. Jernigan, 683 F.2d 1332: (11th Cir. 31982),
cert. denied, 460 U.S. 1024 (1983).scvcrsenss 38
McCleskey v. Kemp, 753 F.2d 877 :
(11th Cir. 1985) (en DENC) sa vein eo © oo 0 eo ® 0 0 ¢ oo passim
McCleskey v. State, 245 Ga. 108, 263 S.E.24 146,
cert. denied, 449 U.S. 891 (1980) co vuinnnvee .
McCleskey v. Zant, 580 F.Supp. 338 ;
(N.D.Ga. 1984). ® © © 8 ® © © © ee © © & © & ® © ea ® 8 © © 0° © 0 0 9 0 0 oO LJ passim
Napue Vv, Illinois, 360 U.S. 264 (1959) .cevrrnne-. 93,34,35
pullman-Standard v. Swint, 456 U.S. 273 (1982), 4 24
Smith v. Balkcom, 660 F.2d 513
(5th Cir. Unit B 1981), cert. denied,
ABO TiS. S00 (1982) cones seremeresrsrsnsnsonses 18,41
smith v. Kemp, 715 F.2d 1459 (11th Cir.),
cert. denied, U.S. ’
102 S.Ct. 510 T1083) une essnnnvere evo VV iiaiale #30
Spinkellink Vv. Wainwright, 578 F.2d 582
(5th Cir. 1978), cert. denied,
440 U.S. 976 {1579 cess vnsssssnsesssssnsenss 18,41
Stephens v. Kemp, 464 U.S. 1027 (1984).ceecceness 22
iii,
Sullivan v. Wainwright, 464 U.S. 109,
104 S.Ct. 450, 78 L.Ed.2d 210 (1983)..ccecnns 22
Taylor v. Louisiana, 419 U.S. 522 (1975) .ceevcens 42
Teamsters v. United States, 431 U.S. 324 (1977) 17
United States v. United States Gypsum Company,
B53 UB 308 (1040 cv cnvresntsnsnsascnnnasnnse 24
Village of Arlington Heights v. Metropolitan
Housing Development Corp,
0 0.8. 280 (107 Vasc sinners Coates ee 20,21
Wainwright v. Witt, U.S. ’
105 S. Ct. 844 (1985) evens snsensansersei
ng ® ® & & 42
Washington v. Davis, 426 U.S. 220. (1976) caentnes . 20,21
Yick Wo v. Hopkins, 118 U.S. 356 (1886) useesscecs 20
Statutes Cited:
0.C.C.A. § 17-10-30(b) (2);
Ga. Code Ann. § 27-2534.1(b)(2)eeeseccccecscs : 1
C.C.,C.A. § 17-10~-30(b) (8):
Ga. Code Ann. § 27-2534.1(b)(8)ececcceccencss 1
iv.
NO. 84-6811
IN THE SUPREME COURT OF THE UNITED STATES
9
OCTOBER TERM, 1984
WARREN McCLESKEY,
Petitioner,
V.
RALPH M. KEMP, SUPERINTENDENT,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF IN OPPOSITION FOR THE RESPONDENT
PART ONE
STATEMENT OF THE CASE
On June 13, 1978, the grand jury of Fulton County, Georgia
returned a three count indictment against the Petitioner,
Warren McCleskey and his three co-indictees, David Burney,
Bernard Dupree and Ben Wright, Jr., charging said individuals
with the offense of murder and two counts of armed robbery.
The Petitioner was tried separately beginning on October 9,
1978, and was found guilty on all three counts. The ery
imposed the death penalty after a separate sentencing
proceeding on the murder charge, finding that: (1) the offense
of murder was committed while the Petitioner was engaged in the
commission of another capital felony, and (2) the offense of
murder was committed against a peace officer, corrections
employee or fireman while engaged in the performance of his
official Quties. See 0.C.G.A. $§ 17-10-30(b)(2) and (D)(8):
Ga. Code Ann. §§ 27-2534.1(b)(2) and (b)(8). Consecutive life
sentences were imposed on the two counts of armed robbery.
-~
The Petitioner appealed his convictions and sentences to
the Supreme Court of Georgia which court affirmed all
convictions and sentences. A subsequent petition for a writ of
certiorari was denied by this Court. McCleskey v. State, 245
Ga. 108, 263 S.E.24 146, cert. denied, 449 U.S. 891 (1980).
On January 5, 1981, the Petitioner filed a petition for
habeas corpus relief in the Superior Court of Butts County,
Georgia. An evidentiary hearing was held by that court on
January 30, 1981. The Superior Court of Butts County denied
habeas corpus relief in an order dated April 8, 1981. The
Supreme Court of Georgia denied the subsequent application for
a certificate of probable cause to appeal on June 7, 1981. The
ensuing petition for a writ of certiorari was denied by this
Court on November 30, 1981.
On December 30, 1981, the Petitioner filed a petition for
habeas corpus relief in the United States District Court for
the Northern District of Georgia. Leave of court was granted
for both parties to conduct discovery so that evidence could be
obtained concerning a statistical challenge to the imposition
of the death penalty in the State of Georgia. An evidentiary
hearing was held during the month of August, 1983 and an
additional hearing was held in October, 1983.
The district court entered an order on February 1, 1984.
McCleskey v, Zant, 580 F.Supp. 338 (N.D.Ga. 1984). That court
rejected all issues raised in the petition except for the
alleged undisclosed deal with a witness. The court directed
that habeas corpus relief be granted as to that issue and
ordered that the conviction and sentence for malice murder be
set aside, but still affirmed the conviction for armed robbery.
Both parties appealed the decision of the district court to
the United States Court of Appeals for the Eleventh Circuit.
On March 28, 1984, the Eleventh Circuit Court of Appeals
directed that the instant case be heard initially by the court
sitting en banc. On January 29, 1985, the en banc court issued
~
an opinion affirming all convictions and sentences. McCleskey
Vv. Kemp, 753 P.24 877 (11th Cir. 1985) (en banc). Petitioner
subsequently filed the instant petition for a writ of
"certiorari in this Court challenging the decision by the
Eleventh Circuit Court of Appeals.
PART TWO
STATEMENT OF FACTS
The evidence presented at Petitioner's trial showed that on
May 13, 1978, he and three co-defendants committed an armed
robbery at the Dixie Furniture Store in Atlanta, Georgia.
During the course of the robbery, the Petitioner entered the
front of the store, while his three co-defendants entered from
the back of the store. Petitioner was positively identified at
trial as one of the participants in the robbery. (T. 231-232,
242, 250).%
Following the arrest of the Petitioner, he was taken to
Atlanta, Georgia. On May 31, 1978, the Petitioner made a
confession to the police in which he admitted his participation
in the robbery, but denied that he shot Atlanta Police Officer
Frank Schlatt. A Jackson v. Denno hearing was held at trial
and the court determined that the confession was freely,
intelligently and voluntarily made. (T. 426-505).
Petitioner's co-defendant, Ben Wright, testified at trial
and related the details of the robbery and murder. Ben Wright
testified that while he carried a sawed-off shotgun, the
Petitioner carried a .38 caliber nickel-plated, white-handled
pistol. (T. 654-656, 648-649). Wright testified that
co-defendant Burney had a blue steel, snub-nosed .32 caliber
pistol while Dupree had a blue steel .25 caliber pistol. (T.
649-651).
lr, will be used to refer to the transcript of
Petitioner's trial in the Superior Court of Fulton County.
S.H.T. will be used to refer to the transcript of the
state habeas corpus hearing in the Superior Court of Butts
County, Georgia. PF.H.T. _. will be used to refer to the
transcript of the evidentiary hearing held by the district
court beginning on August 8, 1983. F.H.T. II ___ will be used
to refer to the subsequent evidentiary hearing conducted in the
district court.
»~
The testimony revealed that while Dupree, Burney and Wright
held several employees in the back of the store, the Petitioner
was in the front. Employee Classie Barnwell activated a silent
alarm, resulting in the arrival of Officer Schlatt. Shortly
after Schlatt entered the front,of the store, he was shot.
After hearing two shots, Wright saw the Petitioner running out
Of the front of the store. Wright, Dupree and Burney ran out
of the back. When they all arrived at the car, Petitioner
stated that he shot the police officer. (T. 658-659).
Mr. Everett New and his wife were stopped in their
automobile at a redlight near the Dixie Furniture Store. They
saw Officer Schlatt arrive at the scene, draw his pistol and
enter the store. Mr. New testified that approximately thirty
seconds later he heard two shots and shortly thereafter saw a
black man running out of the front door carrying a white
handled pistol; however, he could not identify that
individual. . {T. 331-333).
Petitioner testified in his own behalf at trial and stated
that he knew Ben Wright and the other co-defendants, but that
he had not participated in the robbery. Petitioner relied on
an alibi defense, stating that Wright had borrowed his car and
that Petitioner had spent the day at his mother's house and at
some apartments in Marietta playing cards. Petitioner named
several people who had been present at these apartments, but
did not present any of those persons to testify. (T. 811).
Petitioner denied that he made a statement to Lieutenant
Perry that he had participated in the robbery and stated that
he made a false statement to Detective Jowers because of the
alleged evidence the police had against him (two witnesses who
had identified him, the description of his car and a statement
from David Burney), because of his prior convictions and
because he did not have good alibi. (T. 823-824).
Petitioner was also identified at trial by two witnesses
who had observed him take part in a prior similar robbery. Mr.
Paul David Ross, manager of the Red Dot Grocery Store, had
-~
previously identified the Petitioner from a set of color
photographs. Ross also testified that during the course of the
Red Dot robbery, his nickel-plated .38 revolver was stolen.
Ms. Dorothy Umberger also saw the Petitioner during the
April 1, 1978, robbery of the Red Dot Grocery Store. She
testified that she was ninety percent certain that the
Petitioner was one of the men who had robbed her. She based
her identification on viewing the Petitioner at the scene of
the crime and also identified the Petitioner from a
photographic display.
In rebuttal, the State presented the testimony of Arthur
Keissling. This witness testified that he had seen the
Petitioner during the robbery of Dot's Produce on March 28,
1978. His identification of the Petitioner was positive. (T.
887-889, 896).
The State also presented, in rebuttal, the testimony of
Offie Gene Evans. Mr. Evans had been incarcerated in the
Fulton County jail in a cell located near the Petitioner and
Bernard Dupree. Evans related that the Petitioner had talked
about the robbery while in custody and had admitted shooting
Officer Schlatt. (TT. 869-870).
Respondent will set forth further facts as necessary to
address the issues raised in the instant petition.
PART THREE
REASONS FOR NOT GRANTING THE WRIT
1. THE ELEVENTH CIRCUIT COURT OF APPEALS
PROPERLY CONCLUDED THAT THE PETITIONER
FAILED TO SHOW THAT THE DEATH PENALTY
WAS APPLIED IN EITHER AN ARBITRARY OR
DISCRIMINATORY FASHION.
Petitioner has raised two different challenges to the
Eleventh Circuit Court of Appeals' opinion in the instant
case. Petitioner raises a claim based on an Eighth Amendment
challenge, as well as a challenge under the Equal Protection
Clause of the Fourteenth Amendment and asserts that the death
penalty in Georgia should be found to be violative of either or
both of these Constitutional provisions. Respondent submits
that the Eleventh Circuit Court of Appeals and the district
court properly rejected both challenges.
A. The Evidence Presented.
Before examining the law to be applied in the instant case,
it is pertinent to review the evidence presented to the
district court for its consideration. The district court's
opinion sets forth a detailed statement of the scope of the
studies presented, noting that two different studies were
conducted on the criminal justice system in Georgia, that is,
the Procedural Reform Study and the Charging and Sentencing
Study. See McCleskey v. Zant, supra at 353. Petitioner
presented his case primarily through the testimony of Professor
David C. Baldus and Dr. George Woodworth. Petitioner also
presented testimony from Edward Gates as well as an official
from the State Board of Pardons and Paroles. The State offered
the testimony of two expert witnesses, Dr. Joseph Katz and Dr.
Roger Burford. Petitioner then called Professor Baldus and Dr.
Woodworth in rebuttal and also presented testimony from Dr.
Richard Berk.
~
The Eleventh Circuit Court of Appeals noted the following
findings by the district court in which the district court
specifically concluded that the Petitioner failed to make out a
prima facie case of discrimination adn discounted the Baldus
study based on the following rationale:
The Court discounted the disparity shown by
the Baldus study on the ground that the
research (1) showed substantial flaws in
the date base, as shown in tests revealing
coding errors and mismatches between items
on the Procedural Reform Study (PRS) and
Comprehensive (sic) Sentencing Study (CSS)
questionnaires; (2) lacked accuracy and
showed flaws in the models, primarily
because the models do not measure decisions
based on knowledge available to
decision-maker and only predicts outcomes in
50 percent of the cases; and (3)
demonstrated multi-collinearity among model
variables, showing interrelationship among
variables and consequently distorting
relationships, making interpretation
difficult.
McCleskey v. Kemp, supra, 753 F.2d at 886. The Eleventh
Circuit also acknowledged the district court found that the
State had rebutted any prima facie case that may have been
shown because the district court found that the results were
not the product of good statistical methodology and that there
were other explanations avallable for the results of the
study. Id. The district court finally concluded that the
Petitioner had failed to carry his burden of persuasion to show
that the death penalty was being imposed on the basis of the
race of the defendant as well. "Petitioner conceded that the
study is incapable of demonstrating that he was singled out for
»~
the death penalty because of the race of either himself or his
victim, and, therefore, Petitioner failed to demonstrate that
racial considerations caused him to receive the death
penalty." Id.
In making its analysis, the,Eleventh Circuit Court of
Appeals assumed without deciding that the research was valid
because it felt that there was no need to reach the question of
whether the research was valid. The court did not conclude
that the research or methodology was valid.
The Eleventh Circuit Court of Appeals observed the
following with relation to the various studies:
The Baldus study analyzed the imposition of
sentence in homicide cases to determine the
level of disparity attributable to race in
the rate of the imposition of the death
sentence. In the first study, Procedural
Reform Study (PRS), the results revealed no
race-of-defendant effects whatsoever, and
the results were unclear at that stage as to
race-of-victim effects.
The second study, the Charging and
Sentencing Study (CSS), consisted of a
random stratified sample of all persons
indicted for murder from 1973 through 1979.
The study examined the cases from indictment
through sentencing. The purpose of this
study is to estimate racial effects that
were the product of the combined effects of
all decisions from the point of indictment
to the point of the final death-sentencing
decision, and to include strength of the
evidence in the cases.
~
The study attempted to control for all of
the factors which played into a capital
crime system, such as aggravating
circumstances, mitigating circumstances,
strength of evidence, time period of
imposition of sentence, geographical areas
(urban/rural), and race of defendant and
victim. The data collection for these
studies was exceedingly complex, involving
cumbersome data collection instruments,
extensive field work by multiple data
collectors and sophisticated computer
coding, entry and data cleaning processes.
Baldus and Woodworth completed a multitude
of statistical tests on the data consisting
of regression analysis, indexing factor
analysis, cross tabulation, and
triangulation. The result showed a 6 %
racial effect systemwide for white victim,
black defendant cases with an increase to
20 3 in the mid-range of cases. There was
no suggestion that a uniform, institutional
bias existed that adversely affected
defendants in white victim cases in all
circumstances, or a black defendant in all
cases.
The object of the Baldus study in Fulton
County, where McCleskey was convicted, was
to determine whether the sentencing pattern
disparities that were observed statewide
with respect to race of the victim and race
of defendant were pertinent to Fulton
County, and whether the evidence concerning
Fulton County shed any light on Warren
-10-
Pa
McCleskey's death sentence as an aberrant
death sentence, or whether racial
considerations may have played a role in the
disposition of this case.
Because there were only ten cases involving
police officer victims in Fulton County,
statistical analysis could not be utilized
effectively. Baldus conceded that it was
difficult to draw any inference concerning
the overall race effect in these cases
because there had only been one death
sentence. He concluded that based on the
data there was only a possibility that a
racial factor existed in McCleskey's case.
McCleskey v. Kemp, supra, 753 F.2d at 887 (emphasis in
original).
Although the Eleventh Circuit Court of Appeals determined
that it was not necessary to address the validity of the
studies, the district court specifically concluded that the
research was not valid to prove any of the allegations raised.
Respondent presented a wealth of testimony challenging the
accuracy of the data base as well as the statistical
methodology utilized. Respondent challenged the format of some
of the questionnaire items in which there was insufficient
provision for accounting for numerous factors present in the
case. Respondent also submitted that there were numerous
unknowns in both studies present which would affect the
accuracy of any statistical analysis utilized. Respondent
showed that the questionnaires as utilized could not capture
all nuances of every case based on the format of certain
specific questions.
The Charging and Sentencing Study utilized records of the
State Board of Pardons and Paroles, supplemented by information
from the Bureau of Vital Statistics and some questionnaires
-11-
from lawyers and prosecutors. Information was also obtained
from the State Department of Offender Rehabilitation. Emphasis
was placed on the fact that there was a summary of the police
investigative report prepared by parole officers utilized. The
records actually show, however, ,that this police report
appeared in only about twenty-five percent of the cases.
Furthermore, the investigative summaries of the Pardons and
Paroles Board were done after the conviction, thus, they did
not take into account the information that was known to the
decision-makers at the time any individual decision was made.
Furthermore, the information available from the parole board
files was summary in nature. The people gathering information
had no way of knowing the prosecutor's attitude toward
credibility of witnesses as well as many other subjective
factors.
The district court also found, as shown by the Respondent,
that some of the questionnaires were clearly miscoded.
"Because of the degree of latitude allowed the coders in
drawing inferences based on the data in the file, a recoding of
the same case by the same coder at a time subsequent might
produce a different coding. . . . Also, there would be
differences in judgment among the coders." McCleskey v. Zant,
Supra at 337. The district court also noted the
inconsistencies in the questionnaires relating to McCleskey's
case and his co-defendant's cases.
Respondent also introduced evidence showing comparisons
between the Procedural Reform Study and the Charging and
Sentencing Study. Respondent did not attempt to show that one
study or the other was correct, but simply noted that there
were inconsistencies such that either one or the other of the
studies had to be incorrect. There were some 301 cases
appearing in both studies. Of the variables examined by Dr.
Katz, there were mismatches found in the coding between the two
studies in all but two of the variables. The district court
noted, "Some of the mismatches were significant and occurred
wl De
~
within factors which were generally thought to be important in
a determination of sentencing outcome." Id. One of the
central problems with these factors is there is no way to
ascertain which study contains the correct data, if either
study actually does contain the,correct data.
In the district court proceeding, there was much testimony
about the proper method of utilizing the unknown information
and the unknown items present in both studies. This was
presented by Respondent to rebut Professor Baldus' claim that
the information was complete and accurate in the studies.
Professor Baldus indicated that unknowns were consistently
recoded to have zero values in analyzing the data. Dr. Katz
asserted on behalf of the Respondent that the only
statistically accepted method of utilizing unknowns would be to
discard any observation in which there was an unknown. As the
accuracy and reliability of the data is critical in this type
of study, the recoding of unknown values consistently to be
zero, that is not present at all, is not a reliable procedure.
This method of recoding merely assumes that if an item were
unknown to the coder, then it did not exist and that the
decision-maker had no information concerning this factor. This
overlooks the fact that prosecutors may have information in
their file that was unknown to the coders and that juries may
have made assumptions from the evidence which the coder
concluded represented an unknown. Although Professior Baldus
testified that this coding of unknowns would not affect the
outcome of his ans gale the district court speficically found
that the experiments conducted did not support this
conclusion. McCleskey v. Zant, supra at 359.
Another factor addressed by the Respondent which seriously
affects the reliability and accuracy of the data base is the
use of the "other" designation. Many questions in the
questionnaires provided for a designation of "other" when the
questionnaire did not specifically list the appropriate
answer. New variables were not identified by Professor Baldus
-13~-
to include this information in his study. Thus, this
additional information was simply ignored in compiling the data
base.
Another weakness shown on the questionnaire design for both
studies was a direct result of the fact that many murders are
committed by two or more co-perpetrators. The testimony before
the district court was unclear as to the instructions given to
the coders or the intent of Baldus in the coding of the
co-perpetrator cases. The questionnaire items are not in
sufficient detail to differentiate the role of particular
defendants and the extent of the participation of each
defendant in the individual aggravating circumstances. It is
difficult to isolate defendants who played a minor role in the
crime versus a defendant who was the prime mover or actual
triggerman in the case. This could be of particular importance
in cases involving fact situations like that addressed by this
Court in Enmund@ v. Florida, 458 U.S. 73832 (1982).
In examining the trustworthiness of the data base, the
district court specifically found the following:
After a consideration of the foregoing, the
court is of the opinion that the data base
has substantial flaws and that the
petitioner has failed to establish by a
preponderance of the evidence that it is
essentially trustworthy. As demonstrated
above, there are errors in coding the
questionnaire for the case sub judice. This
fact alone will invalidate several important
premises of petitioner's experts. Further,
there are large numbers of aggravating and
mitigating circumstances data about which is
unknown. Also, the researchers are without
knowledge concerning the decision made by
prosecutors to advance cases to a penalty
“lq
trial in a significant number of instances.
The court's purpose here is not to reiterate
the deficiencies but to mention several of
its concerns. It is a major premise of a
statistical case that the data base
numerically mirrors reality. If it does not
in substantial degree mirror reality, any
inferences empirically arrived at are
untrustworthy.
McCleskey v. Zant, supra, 580 F.Supp. at 360. (Emphasis in
original).
In relation tO the findings by the district court, the
Eleventh Circuit Court of Appeals made no findings as to to the
validity of the study or the data base. Although Petitioner
states on numerous occasions that the Eleventh Circuit assumed
the validity of the study, the court obviously did so solely
for the purposes of its analysis, but specifically did not
address this claim. In making its analysis, the court stated,
"we affirm the district court on the ground that, assuming the
validity of the research, it would not support a decision that
the Georgia law was being unconstitutionally applied, much less
would it compel such a finding. . . ." McClegkey v. Kemp,
supra, 753 F.2d at 886. The court later again stated that the
court would "assume without deciding that the Baldus study is
sufficient to show what it purports to reveal as to the
application of the Georgia death penalty." Id. at 895.
Finally, the court again stated that "it would seem that the
statistical evidence presented here, assuming its validity,
confirms rather than condemns the system." Id. at 899. All of
these references clearly show the court was simply assuming for
the purposes of analysis and argument that the study was
valid. Nowhere in its opinion did the court specifically rule
on the validity of the study. Thus, this Court is left with
-l5=-
the factual findings made by the district court which are
entitled to be reviewed under the clear erroneous standard.
Therefore, Respondent would initially submit that the findings
by the district court that the study itself was invalid, that
the data base contained inaccuracies and the statistical
methodology was not proper are sufficient to justify the denial
of certiorari in this case.
Respondent also challenged the accuracy of the models
utilized by the Petitioner in the court below. Petitioner
asserts that Respondent failed to present any substitute
models, but such was not the burden placed on the Respondent in
this type of proceeding. Furthermore, Respondent's position
thoroughout this proceeding has been that a statistical
analysis of this type is simply insufficient to make
determinations as to subjective issues such as intent and
motivation.
All models utilized by the Petitioner assumed that the
information that was available to the persons gathering the
data was also available to the decision-maker at the time the
decisions were made. This assumption was without support in
the record. Thus, any model that was produced from this data
would have to be flawed because it does not measure decisions
based on the knowledge of the individual decision-maker. The
district court also concluded that none of the models utilized
were sufficiently predictive in terms of outcome to support an
inference of discrimination. McCleskey v. Zant, supra, 580 F.
Supp. at 361.
A further problem pointed out in the data is the problem of
multicollinearity. Multicollinearity results when variables in
an analysis are specifically correlated with one another. This
creates difficulties in interpreting the coefficients of
different variables. A relationship between the variables
distorts the regression coefficients. A significant fact in
the instant case is that white victim cases tend to be more
aggravated while black cases tend to be more mitigated. Thus,
-) b=
aggravating factors tend to be correlated with white victim
cases while mitigating factors tend to be correlated with black
victim cases. Every expert who testified, with the exception
of Dr. Berk, agreed that there was substantial
multicollinearity in the data. As noted by the district court,
"the presence of multicollinearity substantially diminishes the
weight to be accorded to the circumstantial statistical
evidence of racial disparity." McCleskey v. Zant, supra, 580
F. Supp. at 364. (Emphasis in original).
Respondent submits that any analysis of these statistics in
the case or the statistical results produced have to be
considered in light of the context of the above concerning the
data base itself as well as other problems with the
methodology. Pretermitting the question of whether statistics
are appropriate in such cases, Respondent submits that the data
base and methodology utilized in the instant case are clearly
insufficient to be useful for the purpose of proving racial
discrimination.
B. Use Of Statistics
Respondent consistently has taken issue with the use of
statistics in social science research in the instant type of
cases. Respondent submits that the Eleventh Circuit Court of
Appeals followed the holdings of this Court and the other
circuits in its analysis of the statistical evidence. As noted
by that court, "[s]ltatistical analysis is useful only to show
facts. In evidentiary terms, statistical studies based on
correlation are circumstantial evidence. They are not direct
evidence." McCleskey v. Kemp, supra, 753 F.2d at 888, citing
Teamsters v. United States, 431 U.S. 324, 340 (1977).
Furthermore, the usefulness of statistics in any given case
depends on what is attempted to be proved by statistics.
Clearly, statistics are more useful in proving disperate impact
than in proving the cause of that impact. Proving certain
subjective factors such as intent and motivation limit the
usefulness of statistical evidence.
«l=
The Eleventh Circuit conducted a thorough discussion of the
usefulness of statistical evidence and the manner in which it
had been received by this Court and other courts. The court
noted that certain methodology was subject to misuse and must
be employed with great care and further recognized the need for
additional evidence even if the statistical evidence was
strong. The court concluded that "[als in all circumstantial
evidence cases, the inferences to be drawn from the statistics
are for the factfinder, but the statistics are accepted to show
the circumstances." Id. at 890. The court did not decline to
consider statistics but simply placed the consideration of the
statistics in the proper perspective in making its analysis.
Co Legal Analyses.
As noted previously, the Petitioner has raised two specific
aspects in his claim pertaining to the application of the death
penalty in Georgia. Petitioner initially relies on the cruel
and unusual punishment provision of the Eighth Amendment to
assert that the death penalty is applied arbitrarily and
capriciously. Petitioner also challenges the application of
the death penalty under the Equal Protection Clause of the
Fourteenth Amendment. The district court did not make a
specific analysis under the Eighth Amendment because the
Petitioner had conceded before the district court that the
issue was resolved adversely to the Petitioner in the Eleventh
Circuit and former Fifth Circuit. Thus, the district court
relied upon the prior holdings of the Fifth Circuit and the
Eleventh Circuit and the concession of the Petitioner in not
addressing this claim. See Smith v. Balkcom, 660 F.2d 573, 584
(5th Cir. Unit B 1981); Spinkellink v. Wainright, 578 F.2d 582
(5th Cir. 1978). The Eleventh Circuit conducted a thorough
analysis of both the Eighth Amendment and the Fourteenth
Amendment claims.
The Eleventh Circuit concluded that Spinkellink could not
be read to automatically foreclose an Eighth Amendment
-]8~
challenge. The court noted this Court's holding in Godfrey Vv.
Georgia, 446 U.S. 420 (1980), which was based on an Eighth
Amendment challenge to a death sentence imposed in the state of
Georgia. The Eleventh Circuit also recognized that in an
Eighth Amendment claim such as the precise one presented in the
instant case, there is an evitable connection between the
Eighth Amendment claim and the Fourteenth Amendment Equal
Protection claim. "A successful Eighth Amendment challenge
would require proof that the race factor was operating in the
system in such a pervasive manner that it could fairly be said
that the system was irrational, arbitrary and capricious."
McCleskey v. Kemp, supra at 891. The court recognized that due
process claims and cruel and unusual punishment claims do not
usually focus on intent, but where racial discrimination is
claimed specifically on the basis of decisions made within a
particular process, "then purpose, intent and motive are a
natural component of the proof that discrimination actually
occured.” 14. at 892.
Petitioner asserts that the holding by the Eleventh Circuit
relating to the Eighth Amendment is in conflict with this
Court's prior holdings. Respondent knows of no holding by this
Court specifically setting forth a standard to be applied in
descrimination claims of an Eighth Amendment context.
In Godfrey v. Georgia, 446 U.S. 426 (1980), this Court held
"if a State wishes to authorize capital punishment it has a
constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of
the death penalty." Id. at 428. The Court referred to the
necessity of obviating standardless sentencing discretion. In
making the analysis, the Court referred back to the decision in
Greqqg v. Georgia, 428 U.S. 153 (1976). Other cases making an
Eighth Amendment analysis, such as Enmund v. Florida, supra,
deal with a proportionality review of the specific case at hand
in relation to the facts of that case. The cases focus on the
determination of whether the sentence is arbitrary and
capricious.
«Ow
In making a determination as to whether the sentence in the
instant case is arbitrary and capricious in light of a
challenge that the decision was based on race, there naturally
must be a focus on the decision-makers themselves. There is no
challenge that the statutory scheme itself creates any
arbitrariness and capriciousness, but rather that the
individuals involved in the process rely upon an impermissible
factor in making the decision. Thus, whether the challenge is
under the Eighth Amendment or the Fourteenth Amendment, intent
and motivation of those individuals involved must, by
necessity, be a focus of the Court.
This Court has long recognized that "a statute otherwise
neutral on its face, must not be applied so as to invidiously
discriminate on the basis of race." Washington v. Davis, 426
U.S. 229, 241 ¢1976), citing Yick Wo v,., Hopkins, 118 U.S. 356,
369 (1886). In making a challenge to an action that is
discriminatory, however, the challenge must go further than
simply identifying a disperate impact. There must be proof
that the challenged action was a product of discriminatory
intent. Village of Arlington Heights v. Metropolitan Housing
Development Corp, 429 U.S. 252, 265 (1977); Washington v.
Davis, supra at 240-242. In Village of Arlington Heights, this
Court recognized that it must be established that the
challenged decision was at least motivated by a descriminatory
purpose. Id. at 266. In Washington v. Davis, this Court noted
"the central purpose of the equal protection clause of the
Fourteenth Amendment is for prevention of official conduct
descriminating on the basis of race. Our cases have not
embraced the proposition that a law or other official act,
without regard to whether it reflects a racially discriminatory
purpose, is unconstitutional solely because it has a racially
disporportionate impact." Id. at 326.
This Court is also recognized that an invidious
discriminatory purpose could be inferred from the totality of
the relevant facts; however the Court held the following:
“2
Nevertheless, we have not held that a law,
neutral on its face and serving ends
otherwise within the power of government to
pursue, is invalid under the Equal
Protection Clause simply because it may
affect a greater proportion of one race than
of another. Disproportionate impact is not
irrelevant, but it is not the sole
touchstone of an invidious racial
discrimination forbidden by the
Constitution. Standing alone, it does not
trigger-the rule . . . that racial
classifications are to be subjected to the
strictest scrutiny and are justifiable only
by the weightiest of considerations.
Washington v. Davis, supra at 242. This Court again
reiterrated in Village of Arlington Heights, supra, that
"official action will not be held unconstitutional solely
because it results in a racially disporportionate impact." Id.
at 165. The Court specifically held that "proof of racially
discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause." Id.
Justice Powell of this Court has also commented on the
proffer of the Baldus study and another case writing a dissent
from a stay of execution:
The Baldus study, relied upon by Stephens,
has not been presented to us. It was made
in 1980 and apparently has been available
since 1982. Although characterized by the
judges of the Court of Appeals who dissented
from the denial of rehearing en banc, as a
"particularized statistical study" claimed
to show "intentional race discrimination,”
no one has suggested that the study focused
wl
On this case, A "particularized" showing
would require--as I understand it =-- that
there was intentional race discrimination in
indicting, trying and convicting Stephens,
and persumably in the state appellate and
state collateral review that several times
followed the trial. If the Baldus study is
similar to the several studies filed with us
in Sullivan v. Wainright, 464 U.S. 109, 104
S.Ct. 450, 7% L.BEQ.24 210 (1983), the
statistics in studies of this kind, many of
which date as far back as 1948, are merely
general statistical surveys that are hardly
particularized with respect to any alleged
"intentional" racial discrimination.
Surely, no contention can be made that the
entire Georgia judicial system, at all
levels, operates to discriminate in all
cases. Arguments to this effect may have
been directed to the type of statute
addressed in Furman v. Georgia, 408 U.S. 238
[92 S.Ct. 27264, 33 L.BEd.24 346) (1972). ‘As
our subsequent cases made clear, such
arguments can not be taken seriously under
statutes approved in Gregg.
Stephens v. Kemp, 464 U.S. 1027, 1030 n.2 (1984) (Powell, J.,
dissenting).
From this case and other cases, the Eleventh Circuit
concluded that "generalized statistical studies" would be of
little use in deciding whether a particular defendant was
unconstitutionally sentenced to death. "As to whether the
system can survive constitutional attack, statistical studies
at most are probative of how much disparity is present, but it
is a legal question as to how much disparity is required before
Wy 4 1
a federal court will accept it as evidence of the
constitutional flaws in the system." McCleskey v. Kemp, supra
at 893. The court noted that general statistical studies of
the kind submitted in the instant case do not even purport to
prove that a particular defendant was discriminated against
because of his race. "To the extent there is a subjective or
judgemental component to the discretion with which a sentence
is invested, not only will no two defendants be seen identical
by the sentencers, but no two sentencers will see a single case
precisely the same." Id. at 894.
Under this reasoning, Respondent submits that the study in
the instance case too general to support any conclusions of
descrimination or arbitrariness in the application of the death
sentence. Certain rational and neutral variables have not been
taken into account, subjective factors have not been taken into
account and a statistical study of this nature can simply not
support a finding of intentional discrimination.
D. Sufficiency of the Study Presented.
Even if generalized studies of the type presented in the
instant case are considered in making determinations as to
inferences of discrimination, Respondent submits that the study
does not support any such conclusion. The Eleventh Circuit
held that "even if the statistical results are accepted as
valid, the evidence fails to challenge successfully the
constitutionality of the Georgia system." McCleskey v. Kemp,
753 F.2d at 894. The court specifically held that based on
this decision that it was not necessary to determine whether
the district court was right or wrong in faulting the study.
Id. The court went on to conclude that any decision that the
results of the study justified relief would have to deal with
the district court's findings as to the validity of the study
itself, which the Court declined to do based on its legal
conclusions.
“lw
The court then noted that "whether a disperate impact
reflects an intent to discriminate is an ultimate fact which
must be reviewed under the clearly erroneous standard." Id.,
citing Pullman-Standard v. Swint, 456 U.S. 273 (1982). Thus,
the court concluded that there were two factual findings in the
instant case, the first being the validity of the study itself
and secondly the finding of the ultimate fact based upon the
circumstantial evidence revealed by the study, if the study
were deemed to be valid. The court pretermitted a review of
the finding concerning the validity of the study itself and
reviewed the finding of fact by the district court that the
ultimate fact of intent to discriminate was not proven. The
Eleventh Circuit concluded, properly, that this finding of fact
was supported by the record.
This Court has defined the clearly erroneous standard,
noting that a finding would be clearly erroneous "when although
there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction
that a mistake has been committed." United States v. United
States Gypsum Company, 333 U.S. 364 (1948). In the instant
case, the Eleventh Circuit Court of Appeals properly concluded
that there was evidence to support the decision by the district
court and properly concluded that after a review of the entire
evidence, there was no indication that a mistake had been
committed by the district court.
As noted by the Eleventh Circuit, the study did not purport
to prove that the Petitioner was sentenced to death because of
either his race or the race of his victim. The study only
shows that under certain circumstances more blacks received the
death penalty than whites. Respondent would continue to assert
that Petitioner has failed to make adequate comparisons of
cases such that "similar" cases are actually being compared.
The Eleventh Circuit Court of Appeals found the following
in relation to its analysis of the statistics presented:
-2 4
The statistics are also enlightening on the
overall operation of the legitimate factors
supporting the death sentence. The Baldus
study revealed an essentially rational
system, in which high aggravation cases were
more likely to result in the death sentence
than low aggravation cases. As one would
expect in a rational system, factors such as
torture and multiple victims greatly
increased the likelihood of receiving the
penalty.
There are important dimensions that the
statistics cannot reveal. Baldus testified
that the Georgia death penalty system is an
extremely complicated process in which no
single factor or group of factors determines
the outcome of a given case. No single
petitioner could, on the basis of these
statistics alone, establish that he received
the death sentence because, and only
because, his victim was white. Even in the
mid-range of cases, where the
race-of-the-victim influence is said to be
strong, legitimate factors justifying the
penalty are, by the very definition of the
mid-range, present in each case.
The statistics show there is a
race-of-the-victim relationship with the
imposition of the death sentence
discernible in enough cases to be
statistically significant in the system as a
whole. The magnitude cannot be called
determinative in any given case.
D5
The evidence in the Baldus study seems to
support the death penalty system as one
operating in a rational manner. Although no
single factor, or combination of factors,
will irrefutably lead to the death sentence
in every case, the system in operation
follows the pattern the legislature
intended, which the Supreme Court found
constitutional in Gregg, and sorts out cases
according to levels of aggravation, as
gauged by legitimate factors.
McCleskey v. Kemp, supra, 753 F.2d at 896-897.
The court recognized that in a discretionary system, there
was bound to be some inprecision. This Court even recognized
in Gregg v. Georgia, supra, that no sentencing system would be
perfect. The Eleventh Circuit concluded that the Baldus study
was insufficient to support a finding that racial factors
played a role in the outcome sufficient to find that the system
as a whole was arbitrary and capricious.
The court went on to note that the so called race of victim
effect increased in the mid-range of cases and accepted the
twenty percent figure of the Petitioner in making its
analysis. The court concluded, "[h]is testimony leaves this
Court unpersuaded that there is a rationally classified,
well-defined class of cases in which it can be demonstrated
that a race-of-the-victim effect is operating with a magnitute
approximating twenty percent." McCleskey v. Kemp, supra at
898. This is based on the fact that Baldus did not define the
so called mid-range of cases. The court also concluded,
however, that one could not focus on an undefined mid-range of
cases to find that an entire system as a whole operated
unconstitutionally. "It is simply not satisfactory to say that
the racial effect operates in 'close cases' and therefore that
the death penalty would be set aside in 'close cases.' " Id.
“2G
The court concluded that the statistics alone were insufficient
to show that the sentence was determined by the race of the
victim or even if the race of the victim contributed to the
imposition of the death penalty.
The Eleventh Circuit also focused on the fact that
Petitioner presented virtually no additional evidence to
support a conclusion that the race of the victim in any way
motivated the jury to impose the death sentence. Petitioner
has referred to the district court's denial of discovery as to
certain aspects of this case. Petitioner ignores the fact that
Petitioner sought to obtain discovery of evidence from the
Respondent in this case which was not in the custody or control
of the Respondent. The district court did not prohibit the
Petitioner from introducing any such evidence. As a matter of
fact, it was discussed during certain conferences with the
court that the Petitioner contemplated presenting such
"anecdotal" evidence and Repondent was prepared to rebut such
evidence.
E. Conclusion.
Respondent submits that the Eleventh Circuit properly
applied the law of this Court and of this circuit in
determining that no Eighth Amendment or Fourteenth Amendment
violation had been shown. The court properly concluded that
even if the validity of the study was assumed, which Respondent
asserts that it should not be, the study simply confirms rather
than condemns the system. "The study showed no discrimination
as to the race of the defendant. The marginal disparity based
on the race of the victim tends to support the state's
contention that the system is working far differently from the
one which Furman condemned." Id. at 899. As Petitioner has
not shown sufficiently that the holding by the Eleventh Circuit
Court of Appeals was in conflict with the decisions of this
Court or that there has been discrepancy in the circuits,
Respondent submits that no basis for the granting for
27
certiorari exists based on the holding by the Eleventh Circuit
Court of Appeals. Therefore, Respondent would urge this Court
to deny certiorari as to this issue.
“28
II. THERE WAS NO VIOLATION OF GIGLIO V.
UNITED STATES IN THE INSTANT CASE.
In this case, the district court granted habeas corpus
relief concluding that the jury was left with the impression
that witness Offie Evans hod been made no promises which would
affect his credibility. The Eleventh Circuit Court of Appeals
reversed, holding that there were no promises as contemplated
by Giglio v. United States, 405 U.S, 150 (1972) and. that if
there had been a Giglio violation it would be harmless.
Petitioner challenges this ruling by the Eleventh Circuit Court
of Appeals.
At the trial of the instant case, the State presented
numerous witnesses, including the co-defendant, Ben Wright, to
testify concerning the circumstances of the crime. During the
initial presentation of the State's case, Ben Wright testified
as to various persons and their participation in the robbery
and also specifically testified that the Petitioner stated that
the Petitioner shot a police officer. During the rebuttal
portion of the case, the State presented several witnesses,
including Offie Gene Evans. Evans did not testify at any time
during the trial except as a rebuttal witness. At the
beginning of his testimony, the State brought out the fact that
Evans was presently incarcerated in the federal penitentiary
serving a six year sentence for forgery. The State also
brought out the fact that Evans had been convicted in 1953 for
burglary, 1955 for larceny, 1959 for carrying a concealed
weapon, 1961 for burglary, 1962 for burglary and forgery and
1967 for theft.
During Evans' testimony, he stated that in July of 1978 he
was incarcerated in the Fulton County jail. At that time he
was charged with escape from a federal halfway house. Evans
testified that the escape charge was still pending, but he
hoped he would not be prosecuted. When asked by Mr. Parker,
-29 =
-~
the Assistant District Attorney, if Mr. Parker had made any
promises to Evans, Evans stated he had not. Evans specifically
testified that the federal authorities told him they were not
going to charge him with escape.
Evans later testified that during his incarceration in
Fulton County he talked with the Petitioner concerning the
crime. The Petitioner rola Evans that the Petitioner went and
checked out the place to be robbed a few days before the
crime. Evans also testified that the Petitioner told him, "but
said after he [McCleskey] seen the police come in and he was
heading towards the other three, what was in the court --1I
mean in the place taking the robbery off, he said that he
couldn't stand to see him go down there, and I think the police
looked around and seen him and he said, 'halt,' or something,
and he had to -- it was him or them one, and said that he had
to shoot." {T. 870).
Evans also testified concerning a conversation with the
Petitioner about a makeup kit and about the Petitioner being
made up slightly with a makeup kit. Evans finally testified
that the Petitioner told him, "It would have been the same
thing if it had been a dozen of them, he would have had to try
to shoot his way out." (T. 871).
On cross-examination, defense counsel emphasized Evans'
criminal history and attempted to portray Evans as a
professional criminal. Evans testified on cross-examination
that he told the police about the conversations with the
Petitioner because the deputy heard him talking. Counsel also
cross-examined Evans concerning the makeup kit. Evans later
testified on cross-examination that the deputy asked if Evans
wanted the deputy to call homicide and would he tell them what
he had been told. Evans agreed to this. Evans was then asked
what he was expecting to get out of telling this to the
authorities. Evans responded, "just like I had been talking to
Ben and something like that." (T. 880). Defense counsel also
pointed out that Evans was seeking to protect his own self
-30-
~
interest by testifying so that suspicion would not be thrown on
him based on his acquaintance with Ben Wright. Defense counsel
asked, "Now, were you attempting to get your escape charges
altered or at least worked out, were you expecting your
testimony to be helpful in that?" (T. 882). Evans responded,
"I wasn't worried about the escape charge. I wouldn't have:
needed this for that charge, there wasn't no escape charge."
(T. 882). Evans testified that the charges were still pending
against him but that he did not want to get prosecuted for the
offense,
The Petitioner called Offie Evans as a witness at the state
habeas corpus proceeding. Evans testified that he had been
brought to Fulton County jail in July of 1978 from the federal
prison system on an escape charge. He testified that prior to
the time of his testimony he talked with two Atlanta police
officers named Harris and Dorsey. He said he did not remember
all about the conversation he might have had with Dorsey. He
also testified that he talked with Russell Parker from the
Fulton County District Attorney's office prior to his
testimony, and just explained to Mr. Parker the substance of
his prior conversations with the Petitioner. He testified that
the detective knew about the escape charges, but Evans did not
tell parker about the charges. {(S.H.T. 119).
Evans testified that the federal authorities were not
actually charging him for escape, but with breach of trust due
to an incident in a halfway house. Evans stated that he
"wasn't on the. run.” (S.H.T. 120). He also testifed that the
charges were settled at the federal penitentiary by the
committee, He testified, "I think it was in August when I went
before the committee out there and they told me they were going
to drop the charges." {(S.H.T. 1213). During further
questioning, Evans testified that it was either the last part
of August or around the first of September of 1978 when he was
told by the officials at the federal penitentiary that they
were going to drop the charges. In response to a question by
31
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the court, Evans stated, "I wasn't promised nothing about -- I
wasn't promised nothing by the D.A. but the Detective told me
that he would -- he said he was going to do it himself, speak a
word for me. That was what the Detective told me." (S.H.T.
122}.
Assistant District Attorney Russell Parker testified for
the state habeas corpus court by way of deposition. Mr. Parker
testified that he did not recall Detective Dorsey having any
role in developing the testimony of Evans. His only memory was
that Detective Jowers, Detective Harris and Deputy Hamilton
were involved. (Parker deposition at 9). He also testified
that he was unaware of any understanding between Evans and any
Atlanta Police Department Detective concerning any favorable
recommendation as to his federal escape charge at the time of
the trial. Id. Mr. Parker testified that he was not aware of
any understanding, even as of the date of the deposition on
February 16, 1981, that might have existed between any Atlanta
Police Department Detective and Offie Evans. Mr. Parker
testified that he apparently later talked to someone with the
F.B.I. to discover whether or not Evans would be prosecuted and
ascertained that he probably would not. He never asked anyone
to drop a charge and he did not know of Offie Evans ever asking
anyone to try and get charges dropped.
The state habeas corpus court determined that it could not
conclude that an agreement existed "merely because of the
subsequent disposition of the criminal charges against a
witness for the State." (State habeas corpus order at 8). The
court also relied upon the fact that any comment was at most a
communication strictly between a detective and the witness
which was not communicated to Mr. Parker.
In reviewing this allegation, it is essential to examine
the underlying purposes behind the various doctrines utilized
in this area, In AaAlcorta v. Texas, 355 U.S. 28 (1957), this
court examined a case in which an eyewitness which testified at
trial later made a sworn statement that he gave false testimony
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~
at trial. The witness specifically stated that he told the
prosecutor about the information prior to trial, but the
prosecutor told him not to volunteer any information. The
prosecutor admitted being aware of this information. This
Court concluded that the testimeny was seriously prejudicial
and that it was the only evidence available to refute ‘the
defense presented.
Subsequently, in Napue v. Illinois, 360 U.S. 264 (1959),
the principal state's witness testified at trial that no
promises had been made for his testimony. It later developed
that the witness had been made promises and the attorney did
not correct the testimony at trial. The jury was simply told
that a public defender would do what he could on behalf of the
witness. The Court was faced with a situation in which the
State failed to correct known false testimony. This Court
focused on the extremely important nature of the testimony
because of the fact that the passage of time and a dim light at
the scene of the crime made any eyewitness identification very
difficult and some of the pertinent witnesses for the State had
left the State. The court noted that the evidence presented
was largely the testimony of this particular witness. The
Court went on to conclude that a conviction obtained through
the use of known false testimony violated the Fourteenth
Amendment to the United States Constitution. This would apply
in situations in which the prosecutor either solicited the
testimony or allowed it to go uncorrected. The Court noted
that the rule did not cease to apply merely because the
testimony only went to the credibility of the witness. The
Court noted that in Napue there clearly was testimony at trial
that no one offered to help the witness outside of an
unidentified lawyer in the public defender's office who held a
considerably different position from the prosecutor who had
actually made the offer.
In Giglio v. United States, 405 U.S. 150 (1972), this Court
examined a case in which the witness in question was a
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co-conspirator and was the only witness linking the defendant
with the crime. The government's attorney stated that there
had been no promises. In the case one assistant attorney had
made a promise that if the witness testified before the tang
jury and at trial he would not be prosecuted. That assistant
did not try the case. The Court referred to the decision in
Napue, supra and noted that when the reliability of a given
witness could well be determinative of guilt or innocence,
non-disclosure of evidence which would affect the credibility
of that witness fell within the rule of Brady v. Maryland
requiring disclosure of the information. The Court noted that
the rule would not apply if the information was only possibly
helpful, but not likely to have changed the verdict. Napue,
supra at 269. The Court in Giglio.v, United States focused on
the holding of Napue that a new trial would be required if the
false testimony could in any reasonable likelihood have
affected the. judgment of the jury. In Giglio, the Court noted
that without the testimony of that witness, there would have
been no indictment and no evidence to carry to the jury;
therefore, a new trial was required.
In each of the cases cited, the witness in question was a
Rey witness in the case. In Alcorta v, Texas, the witness in
question gave the only evidence to refute the defense
presented. In Napue v. Illinois, supra, the testimony of the
witness was noted as being extremely important as the witness
provided the large part of the testimony at trial and made a
critical identification of the defendant as a participant in
the crime. In Giglio v. Tllinoig, the Court noted that without
the testimony of the witness in question, there very likely
would have been no indictment and no evidence to carry to the
jury.
Respondent submits that there has never been a factual
finding that anyone made any promise to Offie Evans. The state
habeas corpus court simply stated that as a matter of law, even
assuming Evans was telling the truth, there was no Giglio
34
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violation. Respondent further asserts that this mere statement
that a detective would "speak a word" for him is insufficient
to constitute a deal under the holdings in Napue and Giglio.
The Eleventh Circuit properly applied the holdings in Napue and
Giglio in finding "the detective's promise to speak a word
falls far short of the understandings reached in Giglio and:
Napue." McCleskey v. Kemp, supra at 884. The court went on to
properly find that the statement of the detective, even if
made, "offered such a marginal benefit, as indicated by Evans,
that it is doubtful it would motivate a reluctant witness, or
that disclosure of the statement would have had any effect on
his credibility.” Id. Thus, Respondent submits that the
Eleventh Circuit Court of Appeals properly concluded that there
was no due process violation.
In the instant case, the witness in question was not a key
prosecution witness, but simply a rebuttal witness called to
corroborate other testimony. The co-conspirator had already
testified concerning the fact that the Petitioner stated that
he shot the victim. The Petitioner 4id not raise a defense Of
lack of malice, but asserted that he did not commit the act at
all. No defense was ever urged concerning a lack of malice;
therefore, the testimony of this witness was not critical in
this regard. Furthermore, there was other testimony from
another witness that the Petitioner committed the crime in
question and fired the fatal shot, Thus, there is a lack of
materiality that was present in the cases of Giglio and Napue.
Thus, Respondent submits that this is sufficient in itself to
conclude that there was no due process violation. In
considering the purpose behind Giglio and subsequent decisions,
it is clear that the basis for these opinions was so the jury
would know facts that might motivate a witness in giving
certain testimony so that the jury might properly assess a
witness' credibility. See Smith v. Kemp, 715 F.2d 1459, 1467
(11th Cir.), cert. denied, U.S. + 104 S.Ct. B10 (1983).
The Eleventh Circuit correctly concluded that any so-called
-35-
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offer by the detective was so marginal as to make it highly
ulikely that it would motivate a reluctant witness in any
fashion or that the disclosure this one statement would have
had any effect on the credibility of the witness.
Furthermore, the Eleventh Circuit Court of Appeals properly
concluded that even if there had been a violation of Giglio,
supra, any such error was harmless beyond a reasonable doubt.
The court properly concluded that there was no "reasonable
likelihood" that this statement would have affected the
judgment of the jury. McCleskey v. Kemp, supra at 884. There
was substantial impeaching evidence concerning the credibility
of Evans without this one minor statement. The prosecutor set
forth all of Evans' prior convictions and Evans was subject to
rigorous cross-examination by counsel for the Petitioner.
"Evans also admitted that he was testifying to protect himself
and one of McCleskey's codefendants. In light of this
substantial impeachment evidence, we find it unlikely that the
undisclosed information would have affected the jury's
agsgesgment of RBvans' credibility.” 14. Thus, it is clear that
any violation of Giglio was harmless beyond a reasonable doubt.
Contrary to the assertion of the Petitioner, the testimony
of Evans was not crucial. The testimony of the co-defendant,
Ben Wright, was sufficiently corroborated under Georgia law
without the testimony of this witness. Under Georgia law,
there need not be corroboration in every material detail. See
Blalock v. State, 250 Ga. 441, 298 S.E.24 477 (1983). The
testimony of Ben Wright was corroborated by Petitioner's own
confession without the necessity of Evans' testimony. Any
comments by Evans concerning the use of makeup and McCleskey's
intent were not sufficient to conclude that it could "in any
reasonable likelihood have affected the judgment of the jury."
Giglio, supra, 405 U.S. at 154. The testimony by Evans was not
the only evidence concerning malice presented at trial. The
prosecutor argued that the physical evidence showed malicious
intent, asserting that the evidence indicated the police
-36-
~
officer had been shot a second time as he lay dying on the
floor. The prosecutor also argued that the only choice left to
Petitioner was to surrender or kill the police officer and that
the fact that he chose to kill indicated malice. The
prosecutor finally argued that Petitioner's statement to Evans
that he would have shot his way out if there had been twelve
officers also showed malice. Petitioner never attempted to
rebut the evidence of malice and did not present a defense of
lack of malice. Thus, this evidence was still not crucial to
the State's case.
Based on all of the above and foregoing, Respondent submits
that the Eleventh Circuit Court of Appeals properly applied the
holdings of this Court in determining that there was no due
process violation, or if there were any such violation, it was
harmless beyond a reasonable doubt. Therefore, this Court
should decline to grant certiorari on this issue.
“37
-
III. ELEVENTH CIRCUIT COURT OF APPEALS
PROPERLY CONCLUDED THAT ANY ALLEGED
BURDEN-SHIFTING CHARGE WAS HARMLESS
BEYOND A REASONABLE DOUBT.
Petitioner asserts this Court should grant certiorari to
consider whether the Eleventh Circuit Court of ABIES
improperly found that the charge in the instant case, if
burden-shifting, was harmless beyond a reasonable doubt. The
Eleventh Circuit concluded that the charge challenged was
virtually identical to that found unconstitutional by that
court in Pranklin v. Prancis, 720 P.24 1206 (llth Cir. 1983).
Which finding was affirmed by this Court in Francis v.
Franklin, U.S. ys 105 8... Ct. 1965 (1985). The Eleventh
Circuit Court of Appeals concluded that under its holdings,
there were still two standards for ascertaining whether a
burden-shifting charge could be harmless error under the
standards of Chapman v. California, 386 U.S8..18 (1967). The
Eleventh Circuit has found unconstitutionally burden-shifting
instructions harmless when the evidence of guilt was so
overwhelming that the error could not have contributed to the
jury's decision to convict. "Lamb v, Jernigan, 683 r.2d4 1332
(11th Cir, 1982), cert. denied, 460 U.S. 1024 (1983). This was
the basis for the finding of harmless error by the district
court in the instant case. The Eleventh Circuit recognized
that at least four members of this Court indicated that this
particular test might be inappropriate in a Sandstrom
analysis. Connecticut v. Johnson, 460 U.S. 73, 85-87 (1983).
The second test utilized by the Eleventh Circuit is where
the instruction shifts the burden on an element that is not at
issue at trial. : Lamb, supra, 683 P.24 at 1342. Even the
plurality in Connecticut v. Johnson indicated that this type of
harmless error might be endorsed in certain limited
circumstances:
3G
-
[A] Sandstrom error may be harmless if the
defendant conceded the issue of intent i...
In presenting a defense such as alibi,
insanity, or self-defense, a defendant may
in some cases admit that the act alleged by
the prosecution was intentional, thereby
sufficiently reducing the likelihood that
the jury applied the erroneous instruction
as to permit the appellate court to consider
the error harmless.
Connecticut v. Johnson, supra, 460: U.S. at 87. This is the
type of analysis applied by the Eleventh Circuit in finding
harmless error in the instant case.
The Eleventh Circuit concluded that Petitioner did not
simply rely upon the state's burden of proving each element of
the crime beyond a reasonable doubt. The Eleventh Circuit
concluded sha following with regard to the defense asserted by
the Petitioner:
Rather, he took the stand at trial and
testified that he was not a participant in
the Dixie Furniture Store robbery which
resulted in the killing of Officer
Schlatt ..... In Closing argument,
McCleskey's attorney again stressed his
client's alibi defense, He concentrated on
undermining the credibility of the
eyewitness identifications that penpointed
McCleskey as the triggerman and
unquestioning the motives of the other
robbery participants who testified that
McCleskey had fired the fatal shots ....
Although McCleskey's attorney's arguments
were consistent with the alibi testimony
offered by McCleskey himself, the jury chose
-30~-
to disbelieve that testimony and relied
instead on the testimony of eyeswitnesses
and other participants in the robbery.
McCleskey v. Kemp, supra, 753 F.2d at 903-904. The court thus
concluded that by virtue of asserting the alibi defense, the
Petitioner effectively conceded the issue of intent, although
not explicitly conceding the issue of intent. The court did
not conclude that a defense of alibi would automatically render
a Sandstrom violation harmless, but concluded that "where the
State has presented overwhelming evidence of an intentional
killing and where the defendant raises a defense of
non-participation in the crime rather than lack of mens rea, a
Sandstrom violation on the intent instruction such as the one
at issue here is harmless beyond a reasonable doubt." 1Id.,
Citing Pngle v. Roehler, 707 F.24 241, 246 (6th Cir. 1983),
aff'd by an equally divided court, U.S. +... 104.8. Ct.
1672 (1984) (per curiam).
Respondent submits that this analysis by the Eleventh
Circuit falls squarely within that concluded to be permissible
by the dessenters in Connecticut v. Johnson and at least
indicated to be permissible by the plurality in Connecticut v.
Johnson. As intent was effectively not an issue in the case
for the jury to decide, it is clear that the charge was
harmless beyond a reasonable doubt. Therefore, Respondent
would urge this Court to decline to grant certiorari on this
ground.
ww
IV. THE ELEVENTH CIRCUIT COURT OF APPEALS
PROPERLY DENIED RELIEF ON PETITIONER'S
ASSERTION THAT THE JURY WAS
IMPERMISSIBLY QUALIFIED AS TO CAPITAL
PUNISHMENT.
Petitioner has asserted that this Court should grant
certiorari on the question of whether the exclusion for cause
of prospective jurors based on their opposition to the death
penalty at the guilt phase is impermissible Petitioner's cites
to the differing holdings in Grigsby v. Mabry, 758 F.2d 226
(8th Cir. 1985) (en banc) and Keeten.v, Garrison, 742 F.2d 129
(4th. cir. 1984),
The Eleventh Circuit Court of Appeals declined to grant
relief on this issue holding, "because both jurors indicated
they would not under any circumstances consider imposing the
death penalty, they were properly excluded ..... Their
exclusion did not violate Petitioner's Sixth Amendment rights
to an impartial community representative jury." McCleskey v.
Kemp, supra, 753 F.2d at 901, The court relied upon the
holdings of the former Pifth Circuit Court of Appeals in making
this conclusion. Smith v. Balkcom, 660 P.24 573, 582-83 (5th
Cir. Unit B 1981), cert. denied, 459 U.S. 882 (1982)
Spinkellink v., Wainwright, 578 P.24 582, 593-94 (5th Cir,
1978), cert. denied, 440 U.S. 976 (1979).
The reasoning in Spinkellink, supra, is still applicable in
the instant case. In that case, the former Fifth.Circuit
assumed that a death-qualified jury would be more likely to
convict than a non-qualified jury for .purposes of its
analysis. The court then went on to note that this still did
not demonstrate which jury would be impartial. The court
concluded that a review of the voir dire examination
demonstrated that the venire that had been chosen in no way
indicated a bias either for the prosecution or a bias against
“al
the defendant. "The venireman indicated only that they would
be willing to perform their civic obligation as jurors and obey
the law. Such persons cannot accurately be branded as
prosecution-prone." 8Spinkellink, supra, 578 F.2d at 594, The
court recognized the state also enjoyed the right to an
impartial jury even as did the defendant and "impartiality
requires not only freedom from jury bias against the accused
and for the prosecution, but freedom from jury bias for the
accused and against the prosecution.” 1d. at 596. The court
concluded that to call a jury which had been death-qualified
prosecution-prone would be to misunderstand the meaning of
impartiality. Id. at 596.
The court also denied the defendant's assertion that
qualifiying the jury in this manner violated the Sixth
Amendment's provision for a representative cross-section of the
community. The court even assumed that this could be shown to
be a distinctive class, but went on to find the state had
"weightier reasons" as required in Taylor v. Louisianna, 419
U.S. 522 (1975), for the exclusion of such veniremen,
Respondent submits that this holding by the Eleventh
Circuit and former Pifth Circuit Court of Appeals Clearly
complies with the constitutional mandates of this Court. The
so called death-qualification of the jury is simply an attempt
£0 seat an impartial jury, that is, a jury which is neither
biased for the prosecution nor for the defendant. This Court
has again recently recognized the state's right to exclude
jurors for cause based on their opinions as to the death
penalty. "Exclusion of jurors opposed to capital punishment
began with a recognition that certain of those jurors might
frustrate the State's legitimate interest in administering
constitutional capital sentencing schemes by not following
their caths.” Wainright v. Witt, U.S. 1.105 8, Ct, 844,
851 (1985). The decisions discussing the excusal as such
jurors are all focused on the concept of an impartial jury,
that is, jurors who will "conscientiously apply the law and
-42 =
find the facts.” -Id., 105 8. Ct. at 852, The State may
legitimately excuse such jurors both at the sentencing phase
and at the guilt-innocence phase based on the assumption that
the juror's attitudes toward the death penalty could easily
affect his view on guilt-innocence. Furthermore, to require
the Salient to conduct two seperate trials, in effect, clearly
exceeds constitutional mandates. In order to seat a second
jury for a sentencing proceeding, as contemplated by the Eighth
Circuit Court of Appeals, the State would have to retry the
defendant by presenting all evidence at the second proceeding
so that the second jury could be in the same position as the
first jury in order to appropriately determine the sentence.
Clearly, this is not constitutionally required.
Respondent therefore submits that this allegation presents
no ground for review by this Court and would urge this Court to
deny certiorari on this ground.
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CONCLUSION
For all of the above and foregoing reasons, Respondent
respectfully requests that this Court deny the petition for a
writ of certiorari filed on behalf of the Petitioner, Warren
McCleskey.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION O. GORDON 302300
First Assistant Attorney General
pt Wen B. 18, = ox
WILLIAM B, HILL, JR. 354725
Senior Assistant Attorney General
ETH WESTMORELAND 750150
ant Attorney General
Counsel of Record for the Respondent
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol square, 8. W.
Atlanta, Georgia 3033
(404) 656-3349 :
-44 -
CERTIFICATE OF SERVICE
I, MARY BETH WESTMORELAND, a member of the bar of
the Supreme Court of the United States and counsel of
record for the Respondent, hereby certify that in
accordance with the rules of the Supreme Court of the
United States, I have this day served a true and correct
copy of this brief in opposition for Respondent upon the
Petitioner by depositing copies of same in the United
States mail with proper address and adequate postage to:
John Charles Boger
99 Hudson Street
New York, New York 10013
Robert H. Stroup
1515 Healey Building
Atlanta, Georgia 30303
Timothy K. Ford
600 Pioneer Building
Seattle Washington, 98104
Anthony G. Amsterdam
New York University
School of Law
40 Washington Square, S.
New York, New York 10012
This 28th day of June, 1985,
ETH WESTMORELAND
Counsel of Record for Respondent
ld 5-