Petitioner's Appendices

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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'S APPENDICES 
  

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       
 



  

  
  

    
  

{ 

{ 

| 

Appendix 

Appendix . 

Appendix 

Appendix 

Appendix 

® . J 

TABLE OF CONTENTS 
  

Opinion of the United States Court 
of Appeal for the Eleventh Circuit 
in McCleskey v. Kemp, 753 F.2d 
877 (11th Cir. 1983) (en banc) 
  

Opinion of the United States Dis- 
trict Court for the Northern Dis- 
trict of Georgia, Atlanta Division, 
in McCleskey v. Zant, 580 F.Supp. 

338 (N.D. Ga. 1984) 
  

Order of the Court of Appeals, dated 
March 26, 1985 denying rehearing 

Statutory Provisions Involved 

Statements of Facts from Petitioner's 
Post-Hearing Memorandum of Law in 
Support of His Claims of Arbitrari- 
ness and Racial Discrimination, . sub- 
mitted to the District Court in 
McCleskey v. Zant, No. C81-2434A; 
and Statement of Facts from En Banc 
Brief for Petitioner McCleskey, sub- 

mitted to the Court of Appeals in 
McCleskey v. Kemp, No. 84-8176 

  

  

  
 



  

  

  

  
  

Appendix A - 
    

| Opinion of the United States Court of Appeals 
for the Eleventh Circuit in McCleskey v. Kemp, 

  

753 F.2d 877 (11th Cir. 1985) (en banc)   
 



  

McCLESKEY v. KEMP 877 
Cite as 753 F2d 877 (1989) 

constituted ineffective assistance of 

counsel. 

Id. at 1240. 

The Court accordingly finds that Petition- 
er's claim of restriction of non-statutory 

mitigating factors has been previously 
raised and adjudicated on the merits. Re- 
consideration of this claim may be barred 

pursuant to Rule %(b) and the first branch 

of the Sanders doctrine unless the ends of 
justice would thereby be defeated. 

The Court finds that Petitioner had a full 
and fair opportunity to present this argu- 
ment at the time of litigating the second 
habeas petition. The facts upon which this 
claim is based were known to Petitioner at 

the time the second petition was filed be- 
cause Petitioner relied upon the transcript 
of the first sentencing hearing in setting 

forth the ineffective assistance of counsel 
claim. No justification exists for failing to 
make this argument in the prior habeas 

petitions. 

In addition, the Court finds that the law 
of the case doctrine precludes relitigation 
of this claim because, as previously noted, 

the Eleventh Circuit held in Raulerson v. 

Wainwright, 732 F.2d 803, 810 (11th Cir. 
1984) that challenges to the first sentenc- 

ing proceeding are irrelevant in a petition 

for relief from a sentence imposed at the 
second sentencing proceeding. Again, this 

decision was not clearly erroneous and 

would not work a manifest injustice in this 

case. 

In conclusion, the Court notes that, with 
the exception of one witness’ testimony, 
the gist of the evidence introduced at the 

hearing on abuse of the writ sought to 

establish excusable neglect or the absence 

of deliberate bypass in failing to raise the 

present claims in the prior petition. How- 

ever, this Court has concluded that all of 

Petitioner's claims were indeed raised in 

the previous habeas petition. Thus, the 

first branch, rather than the second 

branch, of the Sanders doctrine applies. 

Accordingly, it is 

ORDERED and ADJUDGED: 

1. That the Petition for Writ of Habeas 

Corpus, filed herein on January 23, 1985, is 

hereby DENIED; 

2. That the Motion for a Stay of Execu- 
tion, filed herein on January 23, 1985, is 

hereby DENIED; 

3. In light of the Court's rulings, the 
Petitioner's Emergency Motion for Immedi- 
ate Hearing filed on January 26, 1985; Mo- 
tion and Authorities for Evidentiary Hear- 

ing filed on January 23, 1985; Motion for 
Leave to Take Depositions of Out of State 
Witnesses filed on January 23, 1985; and 
‘Supplemental Motion filed on January 27, 
1985, are hereby rendered MOOT. 

w 

© f XEY NUMBER SYSTEM 
T 

Warren McCLESKEY, 

Petitioner-Appellee, 

Cross-Appellant, 

vy. 

Ralph KEMP, Warden, 

Respondent-Appellant, 

Cross-Appellee. 

No. 84-3176. 

United States Court of Appeals, 
Eleventh Circuit. 
— ee - 

Jan. 29, 19185, 

After defendant's convictions and sen- 

tences for murder on two counts of armed 

robbery were affirmed by the Georgia Su- 

preme Court, 245 Ga. 108, 263 S.E.2d 146, 
he petitioned for habeas corpus relief. The 

United States District Court for the North- 

ern District of Georgia, J. Owen Forrester, 

J., 330 F.Supp. 338, granted habeas corpus 

relief, but concluded that defendant failed 

to support his claim that Georgia death-sen- 

tencing process was unconstitutional. 

Both defendant and state appealed. The 
Court of Appeals, Roney, Circuit Judge, 

(1) state's nondisclosure of de- hel 1 thn 
+ eld Liisab. 

 



  

878 

tective’'s statement to prisoner who testi- 
fied that defendant made a jailhouse con- 

fession did not violate defendant’s due pro- 

cess rights; (2) proof of a disparate impact 
alone is insufficient to invalidate a capital 

sentencing system; (3) fact that on average 
a white victim crime is six percent more 
likely to result in death sentence than a 

comparable black victim crime was not suf- 

ficient to overcome presumption that Geor- 
gia death-sentencing process is operating in 
a constitutional manner; (4) statistical 

study was insufficient to show that defend- 
ant’s sentence was determined by race of 

his victim; (5) defendant failed to establish 

ineffective assistance of counsel; and (6) in 

course of asserting his alibi defense, de- 
fendant effectively conceded issue of in- 
tent, thus rendering erroneous burden- 
shifting instruction on inteat harmless be- 

yond a reasonable doubt. 

Reversed and rendered. 

Tjoflat and Vance, Circuit Judges, con- 

curred with opinions. 

Kraviteh, Circuit Judge, issued concur- 
ring statement. 

R. Lanier Anderson, 111, Circuit Judge, 

concurred with opinion in which Kraviteh, 
Circuit Judge, joined as to the constitution- 
al application of the Georgia Death Statute. 

Godbold, Chief Judge, dissented in part 
and concurred in part with opinion in which 
Johnson, Hatchett and Clark, Circuit 

Judges, joined as to the dissent in the Gig- 

[10 issue. 

Johnson, Circuit Judge, dissented in 

part and concurred in part with opinion in 

which Hatchett and Clark, Circuit Judges, 

joined. 

Hatchett and Clark, Circuit Judges, 

dissented in part and concurred in part 
with opinions. 

1. Constitutional Law &268(9, 10) 

State violates due process when it ob- 

tains a conviction through use of false evi- 

dence or on basis of a witness testimony 

when that witness has failed to disclose a 

promise of favorable treatment from the 

753 FEDERAL REPORTER, 2d SERIES 

prosecution. U.S.C.A. Const.Amends. 5, 
14. 

2. Criminal Law &700(4) 

Purpose of rule requiring disclosure of 
a promise of favorable treatment as a re- 
ward for his testimony is to ensure that a 

jury knows the facts that motivate witness 
in giving testimony. 

3. Constitutional Law &=268(10) 

State's nondisclosure of statement of 

detective to witness that detective would. 

“speak a word” for him did not infringe 
defendant's due process rights, since state 
ment offered such a marginal benefit that 
it was doubtful it would motivate a reluc- 

tant witness, or that disclosure of state- 

ment would have had any effect on his 

credibility. U.S.C.A. Const.Amends. 5, 14. 

4. Criminal Law ¢1171.1(1) 

Even if state's failure to disclose detec- 

tive’s cryptic statement to witness that he 
would “speak a word” for him or to dis- 
close witness’ inconsistent version of es- 

cape constituted a violation of defendant's 

due process rights, error was harmless, 
since it was unlikely that undisclosed infor- 

mation would have affected jury's assess- 

ment of witness’ credibility. U.S.C.A. 

Const. Amends. 5, 14. 

5. Criminal Law ¢=510 

Under Georgia law, an accomplice’s 

testimony alone in felony cases is insuffi- 

cient to establish a fact. O.C.G.A. § 24-4- 
8. 

6. Criminal Law &=511.1(4) 

Corroboration of accomplice’s testimo- 

ny need not extend to every material detail. 

7. Criminal Law &332(1) 

In evidentiary terms, statistical studies 

based on correlation are circumstantial evi- 

dence; they are not direct evidence. 

8. Criminal Law <=1208.1(4) 

Limited circumstance under which sta- 

tistical evidence alone can establish inten 

tional racial discrimination in the imposition 

of capital sentence is where the statistical 

evidence of racially disproportionate impact 

is so strong as to permit no inference other 

 



  

McCLESKEY v. KEMP 879 
Clte as 753 F.2d 877 (198%) . 

than that the results are the product of a 
racially discriminatory intent or purpose. 

9, Criminal Law &388 

Statistical evidence may be presented 

in the trial court through direct testimony 

and cross-examination of statistical infor- 

mation that bears on an issue. 

10. Criminal Law &1213.8(8) 

A successful Eighth Amendment chal- 

lenge, based on race, to a capital sentenc- 

ing system would require proof that the 

race factor is operating in the system in 

such a pervasive manner that it could fairly 

be said that system is irrational, arbitrary 

and capricious. U.S.C.A. Const.Amend. 3. 

11. Constitutional Law €27((1) 

Where a capital sentencing statute is 

facially neutral, a due process claim based 

on race must be supported by proof that a 
state, through its prosecutors, jurors, and 

judges, has implicitly attached an aggravat- 

ing label to race. U.S.C.A. Const. Amends. 

5, i4. 

12. Constitutional Law 251 

Application of the due process clause is 

an uncertain enterprise which must dis- 
cover what ‘fundamental fairness” con- 
sists of in a particular situation by first 

considering any relevant precedents and 
then by assessing the several interests that 

are at stake; due process also requires the 

assessment of the risk that the procedures 
being used will lead to erroneous decisions. 

U.S.C.A. Const.Amends. 5, 14. 

13. Constitutional Law &270(2) 

With regard to a claim that a capital- 

sentencing process violates due process be- 

cause of a race factor, claimant must 

present evidence which establishes that in 

the process race is a motivating factor in 

the decision. U.S.C.A. Const.Amends. 3, 

14. 

14. Criminal Law ¢986.2(1) : 
Where racial discrimination is claimed 

with regard to sentencing process, not on 

basis of procedural faults or flaws in the 

structure of the law, but on the basis of the 

decisions made within that process, then 

purpose, intent and motive are a natural 
component of the proof that discrimination 

actually occurred. 

15. Constitutional Law 215 

With regard to a constitutional claim 

of racial discrimination, a showing of dis- 
proportionate impact alone is not sufficient 
to prove requisite discriminatory intent un- 
less no other reasonable inference can be 

drawn. 

16. Criminal Law &=1208.1(4) 

Proof of a disparate impact alone is 

insufficient to invalidate a capital sentenc- 

ing system, unless that disparate impact is 
so great that it compels conclusion that the 

system is unprincipled, irrational, arbitrary 
and capricious such that purposeful dis- 
crimination, i.e., race is intentionally being 

used as a factor in sentencing, can be pre- 
sumed to permeate the system. 

17. Criminal Law &1208.1(4) 

With regard to claim of racial disparity 

in application of a state's death penalty, 

statistical studies may reflect a disparity so 

. great as to inevitably lead to a conclusion 

that the disparity results from discrimina- 
tory intent or motivation. 

18. Criminal Law &113&(1) 

Findings of fact are reviewed under 

the clearly-erroneous standard. 

19. Criminal Law &=1158(1) 

Whether a disparate impact reflects an 

intent to discriminate is an ultimate fact 

which must be reviewed under the clearty- 

erroneous standard. 

20. Criminal Law &1208.1(4) 

Fact that on average a white victim 

erime is six percent more likely to result in 

a death sentence than a comparable black 

victim crime was not sufficient to overcome 

presumption that Georgia capital sentenc- 

ing system is operating in a constitutional 

manner. 

21. Criminal Law &=1208.1(4) 

Assuming that statistical study was 

accurate in its conclusion that a white vic- 

tim increased likelihood of death penalty by 

approximately 20 percent in midrange 

 



  

880 

cases, such a disparity did not provide basis 

for systemwide challenge to Georgia capi- 

tal-sentencing process, since system as a 

whole is operating in a rational manner, 

and not in a manner that can fairly be 

labeled arbitrary or capricious. 

22. Criminal Law &986.2(1) 

Statistical study showing that, on aver- 

age, race-of-the-victim factor was more 

likely to affect outcome in midrange cases 

than in those cases at high and low ends of 

the spectrum of aggravation was insuffi- 

cient to show that defendant's sentence 
was determined by race of his victim or 

even that race of victim contributed to im- 

position of the penalty. 

23. Criminal Law €1166.11(3) 

Ineffective assistance of counsel war- 

rants reversal of a conviction only when 

there is a reasonable probability that the 

attorney's errors altered the outcome of 

the proceeding. 

24. Criminal Law €=641.13(1) 

A court may decide an ineffectiveness 

of counsel claim on ground of lack of preju- 

dice without considering reasonableness of 

attorney’s performance. 

25. Criminal Law €1166.11(5) 

Defendant failed to demonstrate preju- 

dice caused by counsel's failure to inter- 

view prisoner who testified that defendant 

gave a jailhouse confession, with regard to 

detective’s statement to prisoner, since 

there was no reasonable probability that 

counsel’s failure to discover such evidence 

affected the verdict. 

26. Criminal Law &1166.11(5) 

Defendant failed to establish that he 

was prejudiced by counsel's failure to inter- 

view victims of robbery, in absence of con- 

tention that an in-person interview would 

have revealed something their statements 

did not; moreover, defendant had an oppor- 

tunity to cross-examine several of the rob- 

bery victims at his preliminary hearing. 

27. Criminal Law &641.13(6), 1166.11(5) 

Counsel's failure to subpoena victims 

of robbery as defense witnesses did not 

753 FEDERAL REPORTER, 2d SERIES 

constitute ineffective assistance of counsel; 

where counsel relied primarily on alibi de- 
fense at trial, and it would have under- 

mined his defense if he had called the vic- 

tims to testify as to which robber did the 
shooting; moreover, no prejudice could be 
shown by failing to subpoena the witness- 

es. 

28. Criminal Law &641.13(6) 

Attorney’s failure to interview state's 

ballistics expert did not constitute ineffec- 
tive assistance of counsel, since attorney 
could have reasonably prepared to cross-ex- 

amine state’s expert by reading expert's 

report in prosecutor's file; no in-person 

interview was necessary. 

29. Criminal Law &641.13(6) 

Where attorney talked with both de- 

fendant and his sister about potential char- 
acter witnesses who would testify at sen- 
tencing phase, they suggested no possibili- 

ties, and sister refused to testify and ad- 
vised attorney that their mother was too 

sick to travel to site of trial, attorney con- 

ducted reasonable investigation for charac- 

ter witnesses. 

30. Criminal Law ¢=641.13(6) 

With regard to ineffective assistance 

of counsel claim based on failure of counsel 

to object to state's introduction of three 

convictions resulting in life sentences, all 

of which were set aside on Fourth Amend- 

ment grounds, evidence did not result in 
any undue prejudice, because although con- 

victions were overturned, charges were not 

dropped and defendant pleaded guilty and 

received sentences of 18 years, a reduction 

in sentence which was disclosed at trial 

U.S.C.A. Const.Amend. 4. 

31. Jury &33(2.1), 108 

Jurors who indicated that they would 
not, under any circumstances, consider im- 

posing the death penalty were properly ex- 

cluded, and such exclusion did not violate 

defendant's Sixth Amendment rights to an 

impartial, community-representative jury. 

US CA. Const.Amend. 6. 

 



  

McCLESKEY v. KEMP 881 
Cite as 753 F2d 877 (1985) 

32. Criminal Law 1172.2 

An erroneous burden-shifting instruc- 

tion may have been harmless if evidence of 
guilt was so overwhelming that error could 
not have contributed to jury's decision to 

convict. 

33. Criminal Law 1172.6 

An erroneous burden-shifting instruc- 
tion may be harmless where instruction 

shifts burden on an element that is not an 

issue at trial. 

34. Criminal Law &308 

A defendant in a criminal trial may 
rely entirely on presumption of innocence 
and state’s burden of proving every ele- 

ment of the crime beyond a reasonable 
doubt. Pa 

35. Criminal Law 1172.2 

Erroneous burden-shifting instruction 
concerning intent was harmless beyond a 

reasonable doubt, considering that defend- 
ant in course of asserting his alibi defense 

effectively conceded issue of intent. 

36. Criminal Law 1172.2 

Where the state has presented over- 

whelming evidence of an intentional killing 
and where defendant raises a defense of 
nonparticipation in the crime rather than 
lack of mens rea, a Sandstrom violation on 

an intent instruction is harmless beyond a 

reasonable doubt. 

Mary Beth Westmoreland, Asst. Atty. 

Gen., Atlanta, Ga., for respondent-appel- 

lant, cross-appellee. 

Robert H. Stroup, Atlanta, Ga., John 

Charles Boger, Anthony G. Amsterdam, 
New York University-School of Law, New 

* All of the Judges of the Court concur in the 
judgment as to the death-oriented jury claim 
and the ineffective assistance of counsel claim. 

Judges Tjoflat, Vance and Anderson join in the 
opinion but each has written separately on the 
constitutional application of the Georgia death 
sentence. 
Judge Kravitch has written separately to concur 
only in the harmless error portion of the opin- 
ion on the Giglio issue but joins in the opinion 
on all other issues. 

York City, for petitioner-appellee, cross-ap- 

pellant. 

Appeals from the United States District 
Court for the Northern District of Georgia. 

Before GODBOLD, Chief Judge, RO- 
NEY, TJOFLAT, JAMES C. HILL, FAY, 
VANCE, KRAVITCH, JOHNSON, AL- 
BERT J. HENDERSON, HATCHETT, R. 
LANIER ANDERSON, III, and CLARK, 
Circuit Judges. 

RONEY, Circuit Judge, with whom 

Judges TJOFLAT, JAMES C. HILL, FAY, 
VANCE, ALBERT J. HENDERSON and R. 
LANIER ANDERSON, III, join *: 

This case was taken en banc principally 
to consider the argument arising in numer- 

ous capital cases that statistical proof 
shows the Georgia capital sentencing law is 

being administered in an unconstitutionally 
discriminatory and arbitrary and capricious 
matter. After a lengthy evidentiary hear- 

ing which focused on a study by Professor 
David C. Baldus, the district court conclud- 
ed for a variety of reasons that the statisti 

cal evidence was insufficient to support the 
claim of unconstitutionality in the death 

sentencing process in Georgia. We affirm 
the district court's judgment on this point. 

The en banc court has considered all the 

other claims involved on this appeal. On 

the State's appeal, we reverse the district 
court's grant of habeas corpus relief on the 

claim that the prosecutor failed to disclose 

a promise of favorable treatment to a state 

witness in violation of Giglio v. United 
States, 405 U.S. 150, 92 S.Ct. 763, 31 

L.Ed.2d 104 (1972). We. affirm the judg- 

ment denying relief on all other points 

raised by the defendant, that is: (1) that 

defendant received ineffective assistance of 

Chief Judge Godbold dissents from the judg- 
ment of the Court on the Gégiio issue but joins 
in the opinion on all other issues. 
Judges Johnson, Hatchett and Clark dissent 
from the judgment of the Court on the constitu- 
tional application of the Georgia death sentence 
and the Sandstrom and Giglio issues and each 
has written a separate dissenting opinion. 

 



  

882 

counsel; (2) that jury instructions contra- 

vened the due process clause in violation of 
Sandstrom v. Montana, 442 U.S. 510, 99 

S.Ct. 2450, 61 L.Ed.2d 39 (1979); and (3) 
that the exclusion of death-scrupled jurors 
violated the right to an impartial and unbi- 
ased jury drawn from a representative 
cross-section of the community. 

Thus, concluding that the district court 

should have denied the petition for writ of 
habeas corpus, we affirm on all claims de- 
nied by the court, but reverse the grant of 

habeas corpus relief on the Giglio claims. 

FACTS 

Warren McCleskey was arrested and 
charged with the murder of a police officer 
during an armed robbery of the Dixie Fur- 
niture Store. The store was robbed by a 
band of four men. Three entered through 
the back door and one through the front. 
While the men in the rear of the store 
searched for cash, the man who entered 

through the front door secured the show- 
room by forcing everyone there to lie face 
down on the floor. Responding to a silent 

alarm, a police officer entered the store by 
the front door. Two shots were fired. 
One shot struck the police officer in the 
head causing his death. The other glanced 
off a cigarette lighter in his chest pocket. 

McCleskey was identified by two of the 
store personnel as the robber who came in 
the front door. Shortly after his arrest, 
McCleskey confessed to participating in the 

robbery but maintained that he was not the 

triggerman. McCleskey confirmed the eye- 
witness’ accounts that it was he who en- 

tered through the front door. One of his 
accomplices, Ben Wright, testified that 

McCleskey admitted to shooting the officer. 

A jail inmate housed near McCleskey testi- 

fied that McCleskey made a “jail house 

confession” in which he claimed he was the 

triggerman. The police officer was killed 

by a bullet fired from a .38 caliber Rossi 

handgun. McCleskey had stolen a .38 cali 

ber Rossi in a previous holdup. 

PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder 

and two counts of armed robbery. At the 

753 FEDERAL REPORTER, 2d SERIES 

penalty hearing, neither side called any wit- 

nesses. The State introduced documentary 
evidence of McCleskey’s three prior convic- 

tions for armed robbery. 

The jury sentenced McCleskey to death 
for the murder of the police officer and to 

consecutive life sentences for the two 
counts of armed robbery. These convic- 

tions and sentences were affirmed by the 

Georgia Supreme Court. McClesky nv. 
State, 245 Ga. 108, 263 S.E.2d 146, cert. 
denied, 449 U.S. 891, 101 S.Ct. 253, 66 

L.Ed.2d 119 (1980). McCleskey then peti- 

tioned for habeas corpus relief in state 
court. This petition was denied after an 
evidentiary hearing. The Georgia Supreme 
Court denied McCleskey’s application for a 
certificate of probable cause to appeal 
The United States Supreme Court denied a 
petition for a writ of certiorari. McCleskey 
v. Zant, 454 U.S. 1093, 102 S.Ct. 839, 70 
L.Ed.2d 631 (1981). 

McCleskey then filed his petition for ha- 
beas corpus relief in federal district court 
asserting, among other things, the five con- 

stitutional challenges at issue on this ap 
peal. After an evidentiary hearing and 

consideration of extensive memoranda filed 

by the parties, the district court entered 
the lengthy and detailed judgment from 
which these appeals are taken. McCleskey 
v. Zant, 380 F.Supp~ 338 (N.D.Ga.1984). 

This opinion addresses each issue assert 

ed on appeal in the following order: (1) the 

Giglio claim, (2) constitutionality of the 

application of Georgia's death penalty, (3) 

effective assistance of counsel, (4) death- 
qualification of jurors, and (5) the Sand- 

strom issue. 

GIGLIO CLAIM 

{1] The district court granted habeas 

corpus relief to McCleskey because it deter- 

mined that the state prosecutor failed to 

reveal that one of its witnesses had been 

promised favorable treatment as a reward 

for his testimony. The State violates due 

process when it obtains a conviction 

through the use of false evidence or on the 

 



  

McCLESKEY v. KEMP 883 
Clte as 753 F.2d 877 (1985) 

basis of a witness's testimony when that 

witness has failed to disclose a promise of 

favorable treatment from the prosecution. 

Giglio v. United States, 405 U.S. 150, 92 

S.Ct. 763, 31 L.Ed.2d 104 (1972). 

We hold 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. Thus, we 

reverse the grant of habeas corpus relief 

on this ground. 

Offie Gene Evans, a prisoner incarcerat- 

ed with McCleskey, was called by the State 

on rebuttal to strengthen its proof that 

McCleskey was the triggerman at the hold- 

up. Evans testified that McCleskey admit- 

ted to him in jail that he shot the policeman 
and that McCleskey said he had worn 
makeup to disguise his appearance during 

the robbery. 

The “Promise” 

At McCleskey’s state habeas corpus 

hearing, Evans gave the following account 
of certain conversations with state offi- 

ials. 

THE COURT: Mr. Evans, let me ask you 
a question. At the time that you testi 

fied in Mr. McCleskey’s trial, had you 

been promised anything in exchange 

for your testimony’ 

THE WITNESS: No, | wasn’t. 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 toid me. 

Q: (by McCleskey’s attorney): The De- 

tective said he would speak a word for 

you? 

A: Yeah. 

A deposition of McCleskey’'s prosecutor 

that was taken for the state habeas corpus 

proceeding reveals that the prosecutor con- 

tacted federal authorities after McCles- 

key’s trial to advise them of Evans’ cooper- 

ation and that the escape charges were 

dropped. 

The Trial Testimony 

At the trial the State brought out on 

direct examination that Evans was incar- 

cerated on the charge of escape from a 

federal halfway house. Evans denied re- 

ceiving any promises from the prosecutor 
and downplayed the seriousness of the es- 

cape charge. 

Q: [by prosecutor]: Mr. Evans, have I 
promised you anything for testifying 

today? 

A: No, sir, you ain’t. 

Q: You do have an escape charge still 

pending, is that correct? 

A: Yes, sir. [I'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. 

[ stayed at home and when [ 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 

[ 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. 

-Q: Have you asked me to try to fix it so 

you wouldn't get charged with escape? 

A: No, sir. 

Q: Have I told you [ would try to fix it 

for you? 

A: No, sir. 

The State Habeas Corpus Decision 

The state court rejected McCleskey's 

Giglio claim on the following reasoning: 

Mr. Evans at the habeas hearing denied 
that he was promised anything for his 

testimony. He did state that he was told 

by Detective Dorsey that Dorsey would 

‘speak a word’ for him. The detective’s 

er parte communication recommendation 

alone is not sufficient to trigger the ap- 

plicability of Giglio v. United States, 405 

U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104) 

(1972). 

 



  

884 

The prosecutor at petitioner’s trial, Rus- 

sel J. Parker, stated that he was un- 

aware of any. understandings between 

Evans and any Atlanta Police Depart- 

ment detectives regarding a favorable 

recommendation to be made on Evans’ 

federal escape charge. Mr. Parker ad- 

mitted that there was opportunity for 

Atlanta detectives to put in a good word 

for Evans with federal 

any police officer has been killed and 

someone ends up testifying for the State, 

putting his life in danger, it is not sur- 

prising that charges, like those against 

Evans, will be dropped. 

In the absence of any other evidence, the 

Court cannot conclude an agreement ex- 

isted merely because of the subsequent 

disposition of criminal charges against a 

witness for the State. 

Although it is reasonable to conclude 

that the state court found that there was 

no agreement between Evans and the pros- 

ecutor, no specific finding was made as to 

Evans’ claim that a detective promised to 

“speak a word for him.” The court merely 

held as a matter of law that assuming 

Evans was telling the truth, no Giglio vio- 

lation had occurred. 

Was It a Promise? 

The Supreme Court's rationale for impos- 

ing this rule is that “{t]he jury’s estimate 
of the truthfulness and reliability of a giv- 

en witness may well be determinative of 
guilt or innocence.” Napue v. Illinois, 360 

U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 

1217 (1959). The Court has never provided 

definitive guidance on when the Govern- 

ment’s dealings with a prospective witness 

so affect the witness’ credibility that they 

must be disclosed at trial. In Giglio, a 

prosecutor promised the defendant's al- 
leged co-conspirator that no charges would 

be brought against him if he testified 

against the defendant. 

cutor promised a witness that in exchange 

for his testimony the prosecutor would rec 

ommend that the sentence the witness was 

presently serving be reduced. 

authorities. 

However, he further stated that when. 

In Napue, a prose’ 

753 FEDERAL REPORTER, 2d SERIES 

[2,3] In this case, the detective’s prom- 

ise to speak a word falls far short of the 

understandings reached in Giglio and Ng- 

pue. As stated by this Court, “[t]he thrust 

of Giglio and its progeny has been to en. 

sure that the jury know the facts that 

might motivate a witness in giving testimo- 

ny.” Smith v. Kemp, 715 F.2d 1459, 1467 

(11th Cir.), cert. denied, — U.S. —, 104 

S.Ct.-510, 78 L.Ed.2d 699 (1983). The de 

tective's statement offered such a marginal 

benefit, as indicated by Evans, that it is 

doubtful it would motivate a reluctant wit- 

ness, or that disclosure of the statement 

would have had any effect on his credibili- 
ty. The State's nondisclosure therefore 

failed to infringe McCleskey’s due process 
rights. 

Was Any Violation Harmless? 

[4] In any event, there is no “reason 
able likelihood” that the State’s failure to 
disclose the detective’s cryptic statement or 

Evans’ different escape scenario affected 
the judgment of the jury. See Giglio, 405 

U.S. at 154, 92 S.Ct. at 766. Evans’ credi- 

bility was exposed to substantial impeach- 
ment even without the detective’s state 

ment and the inconsistent description of his 
escape. The prosecutor began his direct 

examination by having Evans recite a lita- 
ny of past convictions. Evans admitted to 
convictions for forgery, two burglaries, lar- 

ceny, carrying a concealed weapon, and 

theft from the United States mail. On 
cross examination, McCleskey's attorney 

attempted to portray Evans as a “profes- 

sional criminal”. 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 

assessment of Evans’ credibility. See 

United States v. Anderson, 574 F.2d 1347, 

1356 (5th Cir.1978). 

[5,6] McCleskey claims Evans’ testimo- 

ny was crucial because the only other test- 

mony which indicated he pulled the trigger 

came from his codefendant, Ben Wright. 

Ben Wright's testimony, McCleskey urges, 

 



  

McCLESKEY v. KEMP 885 
Cite as 753 F.2d 877 (1985) 

would have been insufficient under Georgia 
law to convict him without the corrobora- 

tion provided by Evans. In Georgia, an 
accomplice’s testimony alone in felony 
cases is insufficient to establish a fact. 

0.C.G.A. § 24-4-8. Wright's testimony, 

however, was corroborated by McCleskey’s 

own confession in which McCleskey admit- 

ted participation in the robbery. See Ar- 

nold v. State, 236 Ga. 534, 224 S.E.2d 386, 

388 (1976). Corroboration need not extend 

to every material detail. Blalock v. State, 

250 Ga. 441, 298 S.E.2d 477, 479-80 (1983); 

Cofer v. State, 166 Ga.App. 436, 304 S.E.2d 

537, 539 (1983). 

The district court thought Evans’ testi- 

mony critical because of the information he 

supplied about makeup and McCleskey’s 

intent in shooting the police officer. Al 

though we agree that his testimony added 
weight to the prosecution's case, we do not 

find that it could “in any reasonable likeli- 

hood have affected the judgment of the 

jury.” Giglio, 405 U.S. at 154, 92 S.Ct. at 
766 (quoting Napue v. lllinots, 360 U.S. at 

271, 79 S.Ct. at 1178). Evans, who was 

called only in rebuttal, testified that 
McCleskey had told him that he knew he 

had to shoot his way out, and that even if 

there had been twelve policemen he would 
have done the same thing. This statement, 

the prosecutor argued, showed malice. In 

his closing argument, however, the prose 

cutor presented tg the jury three reasons 

supporting a conviction for malice murder. 

First, he argued that the physical evidence 

showed malicious intent because it indi- 

cated that McCleskey shot the police offi- 

cer once in the head and a second time in 

the chest as he lay dying on the floor. 
Second, the prosecutor asserted that 

McCleskey had a choice, either to surren- 

der or to kill the officer. That he chose 0 

kill indicated malice. Third, the prosecutor 
contended that McCleskey's statement to 

Evans that he still would have shot his way 
out if there had been twelve police officers 

showed malice. This statement by McCles- 
key was not developed at length during 

Evans’ testimony and was mentioned only 

in passing by the prosecutor in closing ar- 

gument. 

Evans’ testimony that McCleskey had 

made up his face corroborated the identifi- 

cation testimony of one of the eyewitness- 

es. Nevertheless, this evidence was not 

crucial to the State's case. That McCles- 

key was wearing makeup helps to establish 

he was the robber who entered the furni- 

ture store through the front door. This 

fact had already been directly testified to 

by McCleskey’s accomplice and two eyewit- 

nesses as well as corroborated by McCles- 

key’s own confession. That Evans’ test- 

mony buttresses one of the eyewitnesses’ 

identifications is relatively unimportant. 
7 

Thus, although Evans’ testimony might 
well be regarded as important in certain 
respects, the corroboration of that testimo- 
ny was such that the revelation of the 
Giglio promise would not reasonably affect 

the jury’s assessment of his credibility and 

therefore would have had no effect on the 
jury's decision. The district court's grant 

of habeas corpus relief on this issue must 

be reversed. 

CONSTITUTIONAL APPLICATION OF 
GEORGIA’S DEATH PENALTY 

In challenging the constitutionality of 
the application of Georgia's capital statute, 
McCleskey alleged two related grounds for 

relief: (1) that the “death penalty is admin- 

istered arbitrarily, capriciously, and whim- 
sically in the State of Georgia,” and (2) i 

“is imposed ... pursuant to a pattern and 

practice ... to discriminate on the grounds 
of race,” both in violation of the Eighth and 
Fourteenth Amendments of the Constitu- 

tion. 

The district court granted petitioner's 

motion for an evidentiary hearing on his 

claim of system-wide racial discrimination 

under the Equal Protection Clause of the 

Fourteenth Amendment. The court noted 

that “it appears that petitioner's 

Eighth Amendment argument has been re- 

jected by this Circuit in Spinkellink v. 

Wainwright, 578 F.2d 582, 612-14 (5th Cir. 

1978) [but] petitioner's Fourteenth 

Amendment claim may be appropriate for 

consideration in the context of statistical 

 



  

886 

evidence which the petitioner proposes to 

present.” Order of October 8, 1982, at 4. 

An evidentiary hearing was held in Au- 

gust, 1983. Petitioner's case in chief was 

presented through the testimony of two 

expert witnesses, Professor David C. Bal- 

dus and Dr. George Woodworth, as well as 

two principal lay witnesses, Edward Gates 
and L.G. Warr, an official employed by 

Georgia Board of Pardons and Paroles. 

The state offered the testimony of two 
expert witnesses, Dr. Joseph Katz and Dr. 
Roger Burford. In rebuttal, petitioner re- 

‘called Professor Baldus and Dr. Wood- 

worth, and presented further expert testi- 

mony from Dr. Richard Berk. 

In a comprehensive opinion, reported at 

580 F.Supp. 338, the district court conclud- 

ed that petitioner failed to make out a 
prima facie case of discrimination in sen- 

tencing based on either the race of victims 

or the race of defendants. The Court dis- 
counted the disparities shown by the Bal- 

dus study on the ground that the research 

(1) showed substantial flaws in the data 

base, as shown in tests revealing coding 

errors and mismatches between items on 

the Procedural Reform Study (PRS) and 
Comprehensive Sentencing Study (CSS) 
questionnaires; (2) lacked accuracy and 

showed flaws in the models, primarily be- 

cause the models do not measure decisions 
based on knowledge available to decision- 
maker and only predicts outcomes in 58 
percent of the cases; and (3) demonstrated 

multi-collinearity among model variables, 

showing interrelationship among the varia- 

bles and consequently distorting relation- 

ships, making interpretation difficuit. 

The district court further held that even 

if a prima facie case had been established, 

the state had successfully rebutted the 

showing because: (1) the results were not 

the product of good statistical methodolo- 
gy, (2) other explanations for the study 

results could be demonstrated, such as, 

white victims were acting as proxies for 

aggravated cases and that black-vietim 

cases, and (3) black-victim cases, being left 

cases, and (3) black-victim cases being left 

behind at the life sentence and voluntary 

753 FEDERAL REPORTER, 2d SERIES 

manslaughter stages, are less aggravated 
- and more mitigated than the white-victim 

cases disposed of in similar fashion. 

The district court concluded that petition- 
er failed to carry his ultimate burden of 

persuasion, because there is no consistent 
statistically significant evidence that the 
death penalty is being imposed on the basis 
of the race of defendant. In particular 

there was no statistically significant evi- 

dence produced to show that prosecutors 
are seeking the death penalty or juries are 
imposing the death penalty because the 
defendant is black or the victim is white. 
Petitioner conceded that the study is incap- 

able 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. 

We adopt the following approach in ad- 
dressing the argument that the district 

court erred in refusing to hold that the 

Georgia statute is unconstitutionally ap- 

plied in light of the statistical evidence. 

First, we briefly describe the statistical 

Baldus study that was done in this case. 
Second, we discuss the evidentiary value 

such studies have in establishing the ulti 

mate facts that control a constitutional de- 

cision. Third, we discuss the constitutional 
law in terms of what must be proved in 

order for petitioner to prevail on an argu- 

ment that a state capital punishment law is 

unconstitutionally applied because of race 

discrimination. Fourth, we discuss wheth- 

er a generalized statistical study such as 

this could ever be sufficient to prove the 

allegations of ultimate fact necessary to 

sustain a successful constitutional attack 

on a defendant's sentence. Fifth, we dis- 

cuss whether this study is valid to prove 

what it purports to prove. Sirth, we de- 

cide that this particular study, assuming its 

validity and that it proves what it claims to 

prove, is insufficient to either require or 

support a decision for petitioner. 

In summary, we affirm the district court 

on the ground that, assuming the validity 

of the research, it would not support a 

 



  

McCLESKEY v. KEMP 887 
Cite as 753 F.2d 877 (1985) 

decision that the Georgia law was being 
unconstitutionally applied, much less would 
it compel such a finding, the level which 

petitioner would have to reach in order to 
prevail on this appeal. 

The Baldus Study 

The Baldus study analyzed the imposi- 
tion of sentence in homicide cases to deter- 

mine the level of disparities attributable to 

race in the rate of the imposition of the 

death sentence. In the first study, Proce- 

dural Reform Study (PRS), the results re- 

vealed no race-of-defendant effects whatso- 

ever, and the results were unclear at that 

stage as to race-of-victim effects. 

The second study, the Charging and Sen- 
tencing 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 the 
study was 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 play into a capital crime 
system, such as aggravating circumstanc- 
es, mitigating circumstances, strength of 
evidence, time period of imposition of sen- 
tence, geographical areas (urban/rural), 

and race of defendant and victim. The 
data collection for these studies was ex- 
ceedingly complex, involving cumbersome 

data collection instruments, extensive field 

work by multiple data collectors and so- 

phisticated computer coding, entry and 
data cleaning processes. 

Baldus and Woodworth completed a mul- 

titude of statistical tests on the data con- 

sisting of regression analysis, indexing fac- 

tor analysis, cross tabulation, and triangu- 

lation. The results showed a 67% racial 

effect systemwide for white victim, black 

defendant cases with an increase to 20% in 

the mid-range of cases. There was no sug- 

gestion 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 McCleskey’s death sentence as 

an aberrant death sentence, or whether 

racial considerations may have played a 

role in the disposition of his case. 

Because there were only ten cases in- 

volving police officer victims in Fulton 
County, statistical analysis could not be 

utilized effectively. Baldus conceded that 

it was difficult to draw any inference con- 

cerning 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 possiblity 
that a racial factor existed in McCleskey’s 

case. 

Social Science Research Evidence 

To some extent a broad issue before this 

Court concerns the role that social science 

is to have in judicial decisionmaking. So-- 

cial science is a broad-based field consist- 

ing ‘of many specialized discipline areas, 

such as psychology, anthropology, econom- 

ics, political science, history and sociology. 

Cf. Sperlich, Social Science Evidence and 

the Courts: Reaching Beyond the Adviso- 

ry Process, 63 Judicature 280, 283 n. 14 

(1980). Research consisting of parametric 

. and nonparametric measures is conducted 

under both laboratory controlled situations 

and uncontrolled conditions, such as real 

life observational situations, throughout 

the disciplines. The broad objectives for 

social science research are to better under- 

stand mankind and its institutions in order 

to more effectively plan, predict, modify 

and enhance society's and the individual's 

circumstances. Social science as a nonezx- 

act science is always mindful that its re 

search is dealing with highly complex beha- 

vioral patterns and institutions that exist in 

a highly technical society. At best, this 

 



  

888 

research “models” and ‘‘reflects” society 

and provides society with trends and infor- 
mation for broad-based generalizations. 
The researcher’s intent is to use the conclu- 
sions from research to predict, plan, de 
scribe, explain, understand or modify. To 

utilize conclusions from such research to 
explain the specific intent of a specific be- 
havioral situation goes beyond the legit: 
mate uses for such research. Even when 
this research is at a high level of exactness, 
in design and results, social scientists read- 
ily admit their steadfast hesitancies to con- 

clude such results can explain specific be- 
“havioral actions in a certain situation. 

~The judiciary is aware of the potential 
limitations inherent in such research: (1) 

the imprecise nature of the discipline; (2) 
the potential inaccuracies in presented 
data; (3) the potential bias of the research- 

er; (4) the inherent problems with the 

methodology; (5) the specialized training 
needed to assess and utilize the data com- 
petently, and (6) the debatability of the 
appropriateness for courts to use empirical 

evidence in decisionmaking. Cf Henry, /n- 
troduction: A Journey into the Future— 

The Role of Empirical Evidence in Devel- 
oping Labor Law, 1981 U.IlLL.Rev. 1, 4; 

Sperlich, 63 Judicature at 283 n. 14. 

Historically, beginning with “Louis Bran- 
deis’ use of empirical evidence before the 
Supreme Court ... persuasive social sci- 
ence evidence has been presented to the 
courts.” Forst, Rhodes & Wellford, Sen- 
tencing and Social Science: Research for 
the Formulation of Federal Guidelines, 7 

Hofstra L.Rev. 353 (1979). See Muller v. 

Oregon, 208 US. 412, 28 S.Ct 324, 32 
L.Ed. 531 (1908); Brown v. Board of £du- 

cation, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954). The Brandeis brief presented 

social facts as corroborative in the judicial 

decisionmaking process. O'Brien, Of Jud:- 

cial Myths, Motivations and Justifica- 

tions: A Postscript on Social Science and 

the Law, 64 Judicature 285, 238 (1981). 
The Brandeis brief “is a well-known tech- 

nique for asking the court to take judicial 

notice of social facts.” Sperlich, 63 Judica- 

ture at 280, 285 n. 31. ‘It does not solve 

the problem of how to bring valid scientific 

753 FEDERAL REPORTER, 2d SERIES 

materials to the attention of the court.... 

Brandeis did not argue that the data were 
valid, only that they existed.... The main 
contribution ... was to make extra-legal 
data readily available to the court.” /d. 

This Court has taken a position that so- 
cial science research does play a role in 
judicial decisionmaking in certain situa- 
tions, even in light of the limitations of 

such research. Statistics have been used 

primarily in cases addressing discrimina- 
. tion. 

[7] Statistical analysis is useful only to 
show facts. In evidentiary terms, statisti- 

cal studies based on correlation are circum- 
stantial evidence. They are not direct evi- 
dence. Teamsters v. United States, 431 
U.S. 324, 340, 97 S.Ct. 1843, 1856, 52 
L.Ed.2d 396 (1977). Statistical studies do 
not purport to state what the law is in a 
given situation. The law is applied to the 
facts as revealed by the research. 

In this case the realities examined, based 
on a certain set of facts reduced to data, 

were the descriptive characteristics and 
numbers of persons being sentenced to 
death in Georgia. Such studies reveal, as 
circumstantial evidence through their study 
analyses and results, possible, or probable, 
relationships that may exist in the realities 

studied. 

[8] The usefulness of statistics obvious- 
ly depends upon what is attempted to be 
proved by them. If disparate impact is 
sought to be proved, statistics are more 

useful than if the causes of that impact 

must be proved. Where intent and motiva- 
tion must be proved, the statistics have 

even less utility. This Court has said in 

discrimination cases, however, “that while 

statistics alone usually cannot establish in- 

tentional discrimination, under certain lim- 

ited circumstances they might.” Spencer 

v. Zant 715 F.2d 1582 1581 {11th Cir. 

1983), on pet. for reh’g and for reh’g en 

bane, 729 F.2d 1293 (11th Cir.1984). See 

also Eastland vr. Tennessee Valley Au- 

thority, 704 F.2d 613, 618 (11th Cir.1983); 

Johnson v. Uncle Ben's, Inc., 628 F.2d 419, 

421 (5th Cir.1980), cert. dented, 459 US. 

 



  

McCLESKEY v. KEMP 889 
Cite as 733 F2d 877 (1985) 

967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). 

These limited circumstances are where the 

statistical evidence of racially dispropor- 

tionate impact is so strong as to permit no 

inference other than that the results are 

the product of a racially discriminatory in- 

tent or purpose. See Smith v. Balkcom, 

671 F.2d 858 (5th Cir. Unit B), cert. denied, 

459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 

(1982). 

[9] Statistical evidence has been re- 

ceived in two ways. The United States 

Supreme Court has simply recognized the 

existence of statistical studies and social 

science research in making certain deci 

sions, without such studies being subject to 

the rigors of an evidentiary hearing. Mul- 

ler v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 

L.Ed. 551 (1908); Fowler v. North Caroli 

na, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 

1212 (1976); Woodson v. North Carolina, 

428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 

(1976); Jurek v. Texas, 428 U.S. 262, 96 

S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt 

v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 43 

L.Ed.2d 913 (1976); Gregg v. Georgia, 428 

US. 153, 96 S.Ct. 2909, 49 L.Ed.2d 839 

(1976). The “Supreme Court, for example, 

encountered severe criticism and opposition 

to its rulings on desegregation of public 

schools, the exclusionary rule, and the 

retroactivity of its decisions, precisely be- 

cause the court relied on empirical general 

ization.” O'Brien, The Seduction of the 

Judiciary: Social Science and the Courts, 

64 Judicature 8, 19 (1980). In each of these 

situations the Court “focused” beyond the 

specifics of the case before it to the “Insti 

tutions” represented and through a specific 

ruling effected changes in the institutions. 

On the other hand, statistical evidence may 

be presented in the trial court through di- 

rect testimony and cross-examination on 

statistical information that bears on an is- 

sue. Such evidence is examined carefully 

and subjected to the tests of relevancy, 

authenticity, probativeness and credibility. 

Cf Henry, 1981 U.IlLL.Rev. at & 

One difficulty with statistical evidence is 

that it may raise more questions than it 

answers. This Court reached that conclu- 

sion in Wilkins v. University of Houston, 
654 F.2d 388 (5th Cir. Unit A 1981). In 
Wilkins this Court held that ‘“[m]ultiple 
regression analysis is a relatively sophisti- 

cated means of determining the effects 
that any number of different factors have 
on a particular variable.” Jd. at 402-03. 
This Court noted that the methodology “is 
subject to misuse and thus must be em- 
ployed with great care.” Jd. at 403. Pro- 
cedurally, when multiple regression is used 
“it will be the subject of expert testimony 
and knowledgeable cross-examination from 
both sides. In this manner, the validity of 
the model and the significance of its results 
will be fully developed at trial, allowing the 
trial judge to make an informed decision as 
to the probative value of the analysis.” 7d. 
Having done this, the Wilkins Court, in an 
employment discrimination case, held “the 
statistical evidence associated with the mul- 
tiple regression analysis is inconclusive, 
raising more questions than it answers.” 

ld. 

Even if the statistical evidence is strong 
- there is generally a need for additional 

evidence. In Wade v. Mississippt Cooper- 
ative Extension Serv., 5328 F.2d 508 (5th 

Cir.1978), the results drawn from the multi- 

variate regression analysis were supported 

by additional evidence. [d. at 517. In 
Wade the statistics did not “stand alone” 
as the sole proof of discrimination. 

Much has been written about the rela- 

tionship of law and social science. “If 

social science cannot produce the required 
answers, and it probably cannot, its use is 

likely to continue to lead to a disjointed 
incrementalism.” Daniels, Social Science 
And Death Penalty Cases, 1 Law & Poly 
Q. 338, 367 (1979). “Social science can 

probably make its greatest contnbution to 

legal theory by investigating the causal 

forces behind judicial, legislative and ad- 

ministrative decisionmaking and by probing 

the general effects of such decisions.” Na- 

el, Lau And The Social Sciences: What 

Can Social Science Contribute? 336 A.B. 

A.J. 356, 357-38 (1963). 

With these observations, this Court ac- 
cepts social science research for what the 

 



  

890 

social scientist should claim for it. As in 

all circumstantial evidence cases, the infer- 

ences to be drawn from the statistics are 

for the factfinder, but the statistics are 

accepted to show the circumstances. 

Racial Discrimination, the Death Penal- 

ty, and the Constitution 

McCleskey contends his death sentence is 
unconstitutional because Georgia's death 
penalty is discriminatorily applied on the 
basis of the race of the defendant and the 

victim. Several different constitutional 
bases for this claim have been asserted. 

McCleskey relies on the arbitrary, capri 
cious and irrational components of the pro- 

hibition of cruel and unusual punishment in 
. the Eighth Amendment and the equal pro- 
tection clause of the Fourteenth Amend- 
ment. The district court thought that with 
respect to race-of-the-victim discrimination 
the petitioner more properly stated a claim 
under the due process clause of the Four- 
teenth Amendment. 

laims of this kind are seldom asserted 
with a degree of particularity, and they 

generally assert several constitutional pre- 
cepts. On analysis, however, there seems 

to be little difference in the proof that 

. might be required to prevail under any of 
the three theories. 

In Furman v. Georgia, 408 U.S. 238, 92 
S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Su- 
preme Court struck down the Georgia 
death penalty system on Eighth Amend- 
ment grounds, with several of the concur- 

ring justices holding that the system oper- 

ated in an arbitrary and capricious manner 

because there was no rational way to dis- 

tinguish the few cases in which death was 

imposed from the many in which it was not. 

Id at 313, 92 S.C. at 2784 {White, J, 
concurring); id. at 309-10, 92 S.Ct. at 
2762-63 (Stewart, J. concurring). Al 

though race discrimination in the imposi- 

tion of the death penalty was not the basis 

of the decision, it was one of several con- 

cerns addressed in both the concurring and 

dissenting opinions. See 1d. at 249-32, 92 

S.Ct. at 2731-33 (Douglas, J. concurring); 

id. at 309-10, 92 S.Ct. at 2762-63 (Stewart, 

J. concurring); id. at 364-65, 92 S.Ct. at 

753 FEDERAL REPORTER, 2d SERIES 

2790-91 (Marshall, J., concurring); id. at 
389-90 n. 12, 92 S.Ct. at 2803-04 n. 12 

(Burger, CJ., dissenting); td. at 449, 92 

‘S.Ct. at 2833 (Powell, J., dissenting). 

Four years later, the Supreme Court ap- 
proved the redrawn Georgia statute pursu- 
ant to which McCleskey was tried and sen- 

tenced. Gregg v. Georgia, 428 U.S. 153, 96 

S.Ct. 2909, 49 L.Ed.2d 839 (1976). At the 
same time the Court approved statutes 
from Florida and Texas which, like Geor- 
gia, followed a guided discretion approach, 
but invalidated the mandatory sentencing 
procedure of North Carolina and Louisiana. 
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 
2960, 49 L.Ed.2d 913 (1976); Jurek v. Tex- 

as, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 
929 (1976); Woodson v. North Carolina, 

428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 
(1976); Roberts v. Louisiana, 428 U.S. 325, 

96 3.Ct. 3001, 49 L.Ed.2d 974 (1976). 

Since Gregg, we have consistently held 
that to state a claim of racial discrimination 

in the application of a constitutional capital 
statute, intent and motive must be alleged. 
Sullivan v. Wainwright, 721 F.2d 318, 317 

(11th Cir.1983) (statistical impact studies 

insufficient to show state system “inten- 

tionally discriminated against petitioner”), 

petition for stay of execution denied, — 

US. , 104 S.Ct. 450, 78 L.Ed.2d 210 
(1983); Adams v. Wainwright, 709 F.2d 

1443, 1449 (11th Cir.1983) (requiring “a 
showing of an intent to discriminate” or 

“evidence of disparate impact ... so strong 
that the only permissible inference is one 

of intentional discrimination”), cert. de- 
nied, — U.S. 304 S.Ct.- 745. 79 
L.Ed.2d 203 (1984); Smith v. Balkcom, 671 

F.2d 858, 839 (5th Cir.Unit B) (requiring 
“circumstantial or statistical evidence of 

racially disproportionate impact ... so 

strong that the results permit no other 

inference but that they are the product of a 

racially discriminatory intent or purpose’), 

cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 

L.Ed.2d 148 (1982). 

Initially in Spinkellink v. Wainwright, 

578 F.2d 332 (5th Cir.1978), cert. denied, 

440 U.S. 976, 99 S.Ct. 1548, 539 L.Ed.2d 795 

(1979), the Court rejected Eighth and Four- 

  

  

3 
6 
C 

 



  

McCLESKEY v. KEMP 891 
Clte as 733 F.2d 877 (1939) 

teenth Amendment claims that the Florida 
death penalty was being applied in a dis- 
criminatory fashion on the basis of the 

victim's race. The Spinkellink Court read 
Gregg and its companion cases ‘‘as holding 
that if a state follows a properly drawn 
statute in imposing the death penalty, then 
the arbitrariness and capriciousness—and 
therefore the racial discrimination con- 
demned in Furman—have been conclusive- 
ly removed.” Id. at 613-14. Spinkellink 
can not be read to foreclose automatically 

all Eighth Amendment challenges to capital 
sentencing conducted under a facially con- 
stitutional statute. In Godfrey v. Georgia, 
446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 
(1980), the Supreme Court sustained an 
Eighth Amendment challenge to a Georgia 
death sentence because the Georgia court's 
construction of a portion of that facially 
valid statute left no principled way to dis- 
tinguish the cases where the death penalty 

was imposed from those in which it was 
not. See Proffitt v. Wainwright, 685 F.2d 
1227, 1261 n. 52 (11th Cir.1982). Neverthe- 

less, neither Godfrey nor Proffitt under- 
mines this Court's prior and subsequent 
pronouncements in Spinkxellink, Smith, 

Adams, and Sullivan regarding the 

amount of disparate impact that must be 

shown under either an Eighth Amendment 
or equal protection analysis. 

As the district court here pointed out, 

such a standard indicates an analytical nex- 
us between Eighth Amendment claims and 
a Fourteenth Amendment equal protection 
claim. McCleskey v. Zant, 380 F.Supp. 
338, 347 (N.D.Ga.1984). Where an Eighth 
Amendment claim centers around general 

ized showings of disparate racial impact in 

capital sentencing, such a connection is in- 

escapable. Although conceivably the level 

or amount of disparate racial impact that 

would render a state's capital sentencing 

system arbitrary and capricious under the 

Eighth Amendment might differ slightly 

from the level or amount of disparate racial 

impact that would compel an inference of 

discriminatory intent under the equal pro 

tection clause of the Fourteenth Amend- 

ment, we do not need to decide whether 

there could be a difference in magnitude 

that would lead to opposite conclusions on 
a system's” constitutionality depending on 
which theory a claimant asserts. 

[10] 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, arbi- 

trary and capricious. For the same rea- 
sons that the Baldus study would be insuf- 

ficient to demonstrate discriminatory intent 
or unconstitutional discrimination in the 

Fourteenth Amendment context, it would 
be insufficient to show irrationality, arbi 
trariness and capriciousness under any 
kind of Eighth Amendment analysis. 

The district court stated that were it 
writing on a clean slate, it would character- 
ize McCleskey’s claim as a due process 
claim. The court took the position that 
McCleskey's argument, while couched in 
terms of “arbitrary and capricious,” funda- 

mentally contended that the Georgia death 
penalty was applied on the basis of a mor- 

ally impermissible criterion: the race of the 
victim. 

{11] The district court's theory derives 

some support from the Supreme Court's 

decision in Zant v. Stephens, 462 U.S. 862, 

103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The 
Court there recognized that a state may 
not attach the “aggravating” label as an 
element in capital sentencing to factors 

that are constitutionally impermissible or 

totally irrelevant to the sentencing process, 

such as race. If that were done, the Court 
said, “due process would require that the 
jury's decision to impose death be set 

aside.” Jd. 462 U.S. at ——, 103 S.Ct. at 

2747, 77 L.Ed.2d at 255. From this lan- 

guage it is clear that due process would 
prevent a state from explicitly making the 

murder of a white victim an aggravating 

circumstance in capital sentencing. But 

where the statute is facially neutral, a due 

process claim must be supported by proof 

that a state, through its prosecutors, jur- 

ors, and judges, has implicitly attached the 

aggravating label! to race. 

 



  

892 
12,13] Even if petitioner had charae- 

terized his claim as one under the due 

process clause, it would not have altered 

the legal standard governing the showing 

he must make to prevail. The application 

of the due process clause is “an uncertain 

enterprise which must discover what ‘fun- 

damental fairness’ consists of in a particu- 

lar situation by first considering any rele- 

vant precedents and then by assessing the 
several interests that are at stake.” Lassi- 
ter v. Department of Social Services, 452 

U.S. 18, 24-25, 101 S.Ct. 2153, 2158-2159, 

68 L.Ed.2d 640 (1981). Due process also 

requires the assessment of the risk that the 

procedures being used will lead to errone- 

ous decisions. Mathews v. Eldridge, 424 

U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 

18 (1976). Where a due process claim re- 

quires a court to determine whether the 

race of the victim impermissibly affected 

the capital sentencing process, decisions 

under the equal protection clause, charac 

terized as “central to the Fourteenth 

Amendment's prohibition of discriminatory 

action by the State,” Rose v. Mitchell, 443 

U.S. 545, 554-55, 99 S.Ct. 2993, 2999-3000, 

61 L.Ed.2d 739 (1979), are certainly “rele- 

vant precedents” in the assessment of the 
risk of erroneous decisions. Thus, as in 

the equal protection context, the claimant 

under a due process theory must present 

evidence which establishes that in the capi- 

tal sentencing process race ‘is a motivating 

factor in the decision.” Village of Ariing- 

ton Heights v. Metropolitan Housing De- 

velopment Corp., 429 US. 252, 266, 97 

S.Ct. 535, 563, 50 L.Ed.2d 450 (1977). 

(14] Due process and cruel and unusual 

punishment cases do not normally focus on 

the intent of the governmental actor. But 

where racial discrimination is claimed, not 

on the basis of procedural faults or flaws 

in the structure of the law, but on the basis 

of the decisions made within that process, 

then purpose, intent and motive are a natu- 

ral component of the proof that discrimina- 

tion actually occurred. 

(15] The Supreme Court has clearly 

held that to prove a constitutional claim of 

racial discrimination in the equal protection 

753 FEDERAL REPORTER, 2d SERIES 

context, intent, purpose, and motive are 

necessary components. Washington ov. 

Davis, 426 U.S. 229, 238-42, 96 S.Ct. 2040, 

2046-49, 48 L.Ed.2d 597 (1976). A showing 

of a disproportionate impact alone is not 

sufficient to prove discriminatory intent un- 

less no other reasonable inference can be 

drawn. Arlington Heights, 429 US. at 

264-66, 97 S.Ct. at 562-64. This Circuit 

has consistently applied these principles of 

law. Adams v. Wainwright, 709 F.2d 

1443, 1449 (11th Cir.1983), cert. denied, — 

US. — 104 S.Ct. 745, 79 L.Ed.2d 203. 
(1984); Sullivan v. Wainwright, 721° F.2d 

316, 317 (11th Cir.1983). : 

[16] We, therefore, hold that proof of a 

disparate impact alone is insufficient to 

invalidate a capital sentencing system, un- 

less that disparate impact is so great that it 

compels a conclusion that the system is 

unprincipled, irrational, arbitrary and capri- 

cious such that purposeful discrimination— 

i.e., race is intentionally being used as a 

factor in sentencing—can be presumed to 
permeate the system. 

Generalized Statistical Studies and the 

Constitutional Standard 

[17] The question initially arises as to 

whether any statewide study suggesting a 

racial disparity in the application of a 

state's death penalty could ever support a 

constitutional attack on a defendant's sen- 

tence. The answer lies in whether the sta- 

tistical study is sufficient evidence of the 

ultimate fact which must be shown. 
ed 

In Smith v. Balkcom, €71 F.2d 838, 359 

(5th Cir.Unit B), cert. denied. 459 U.S. 88: 

103 S.Ct. 181, 74 L.Ed.2d 1423 (1982). ¢ 

Court said: 

In some instances, circumstantial or sta- 

tistical evidence of racially disproportion- 
ate impact may be so strong that the 

results permit no other inference but 

that they are the product of a racially 

discriminatory intent or purpose. 

This statement has apparently caused some 

confusion because it is often cited as a 

proposition for which it does not stand. 

Petitioner argues that his statistical study 

 



  

McCLESKEY v. KEMP 893 
Cite as 753 F.2d $77 (1985) 

shows a strong inference that there is a 

disparity based on race. That is only the 

first step, however. The second step focus- 

es on how great the disparity is. Once the 

disparity is proven, the question is whether 

that disparity is sufficient to compel a con- 

clusion that it results from discriminatory 

intent and purpose.. The key to the prob- 

lem lies in the principle that the proof, no 

matter how strong, of some disparity is 

alone insufficient. 

In Spinkellink v. Wainwright, 578 F.2d 

582, 612 (5th Cir.1978), cert. denied, 440 

US. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 

" (1979), the petitioner claimed the Florida 

statute was being appliéd in a discriminato- 

ry fashion against defendants murdering 

whites, as opposed to blacks, in violation of 

the cruel and unusual punishment and 

equal protection components of the Consti- 

tution. Evidence of this disparity was in- 

troduced through expert witnesses. 

court assumed for sake of argument the 

accuracy of petitioner's statistics but re- 

jected the Eighth Amendment argument. 

~The court rejected the equal protection ar- 

gument because the disparity shown by 

petitioner's statistics could not prove racial- 

ly discriminatory intent or purpose as re 

quired by Washington v. Davis, 426 US. 

229 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), 

and Village of Arlington Heights v. Metro- 

politan Housing Development Corp., 429 

US. 252, 97 S.Ct. 555, 50 L.Ed.2d 430 

(1977). 578 F.2d at 614-16. 

In Adams v. Wainwright, 709 F.2d 1443 

(11th Cir.1983), cert. denied, — US. —, 

104 S.Ct. 745, 79 L.Ed.2d 203 (1984), the 

court, in denying an evidentiary hearing, 

accepted statistics which arguably tended 

to support the claim that the Florida death 

penalty was imposed disproportionately in 

cases involving white victims. The court 

then said: 

Disparate impact alone is insufficient to 

establish a violation of the fourteenth 

amendment. There must be a showing 

of an intent to discriminate.... Only if 

the evidence of disparate impact is so 

strong that the only permissible infer- 

ence is one of intentional discrimination 

will it alone suffice. 

The . 

709 F.2d at 1449 (citations omitted). Here 

again, in commenting on the strength of 

the evidence, the court was referring not to 

the amount or quality of evidence which 

showed a disparate impact, but the amount 

of disparate impact that would be so strong 

as to lead inevitably to a finding of motiva- 

tion and intent, absent some other explana- 

“tion for the disparity. 

In commenting on the proffer of the Bal- 

dus study in another case, Justice Powell 

wrote in dissent from a stay of execution 

pending en banc consideration of this case: 

If the Baldus study is similar to the 

several studies filed with us in Sullivan 

v. Wainwright, — U.S. —, 104 S.Ct. 

90, 78 L.Ed.2d 266 (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 partic- 

ularized with respect to any alleged “in- 

tentional” racial discrimination. Surely, 

no contention can be made that the entire 

Georgia judicial system, at all levels, op- 

erates to discriminate in all cases. Argu- 

ments to this effect may have been di- 

rected to the type of statutes addressed 

in Furman v. Georgia, 408 U.S. 238 [92 

S.Ct. 2726, 33 L.Ed.2d 346] (1972). As 

our subsequent cases make clear, such 

arguments cannot be taken seriously un- 

der statutes approved in Gregg. 

Stephens v. Kemp, — U.S. ——, — 1. 2 

104 S.Ct. 562, 564 n. 2, 78 L.Ed.2d 370, 374 

n. 2 (1984) (Powell, J., dissenting). 

The lesson from these and other cases 

must be that generalized statistical studies 

are of little use in deciding whether a par- 

ticular defendant has been unconstitution- 

ally 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 a federal court will accept 

it as evidence of the constitutional flaws in 

the system. 

This point becomes especially critical to a 

court faced with a request for an evidentia- 

ry hearing to produce future studies which 

 



  

894 

will undoubtedly be made. Needless to 
say, an evidentiary hearing would be neces- 
sary to hear any evidence that a particular 
defendant was discriminated against be- 
cause of his race. But general statistical 
studies of the kind offered here do not even 
purport to prove that fact. Aside from 

that kind of evidence, however, it would 

not seem necessary to conduct a full evi- 
dentiary hearing as to studies which do 
nothing more than show an unexplainable 
disparity. Generalized studies would ap- 

pear to have little hope of excluding every 
possible factor that might make a differ- 
ence between crimes and defendants, exclu- 

sive of race. To the extent there is a 
subjective or judgmental component to the 
discretion with which a sentence is invest- 

“ed, 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 varia- 
bles” in the sentencing of capital cases. 

Smith v. Balkcom, 671 F.2d at 859. 

This is not to recede from the general 
proposition that statistical studies may re- 

flect a disparity so great as to inevitably 

lead to a conclusion that the disparity re- 

sults from intent or motivation. As decid- 

- ed by this opinion, the Baldus studies dem- 
onstrate that the Georgia system does not 
contain the level of disparity required to 
meet that constitutional standard. 

Validity of the Baldus Study 

The social science research of Professor 

Baldus purports to reveal, through statisti- 

cal analysis, disparities in the sentencing of 

black defendants in white victim cases in 

Georgia. A study is valid if it measures 

what it purports to measure. Different 

studies have different levels of validity. 

The level of the validity of the study is 

directly related to the degree to which the 
social scientist can rely on the findings of 

the study as measuring what it claims to 

measure. 

The district court held the study to be 

invalid because of perceived errors in the 

data base, the deficiencies in the models, 

and the multi-collinearity existing between 

753 FEDERAL REPORTER, 2d SERIES 

the independent variables. We hold in this 
case that even if the statistical results are 
accepted as valid, the evidence fails to chal- 
lenge successfully the constitutionality of 

the Georgia system. Because of this deci- 
sion, it is not necessary for us to determine 
whether the district court was right or 
wrong in its faulting of the Baldus study. 

The district court undertook an extensive 
review of the research presented. It re- 

ceived, analyzed and dealt with the complex 
statistics. The district court is to be com- 
mended for its outstanding endeavor in the 
handling of the detailed aspects of this 
case, particularly in light of the consistent 

arguments being made in several cases 
based on the Baldus study. Any decision 
that the results of the Baldus study justify 

habeas corpus relief would have to deal 
with the district court's findings as to the 
study itself. Inasmuch as social science 

research has been used by appellate courts 

in decisionmaking, Muller v. Oregon, 208 
U.S. 412, 419-21, 28 S.Ct. 324, 325-26, 52 
L.Ed. 551 (1908), and has been tested like 

other kinds of evidence at trial, see Spink- 

ellink v. Wainwright, 578 F.2d 582, 612-13 

(5th Cir.197R), there is a question as to the 

standard of review of a trial court’s finding 
based on 2 highly complex statistical study. 

[18] Findings of fact are reviewed un- 
der the clearly erroneous standard which 

the Supreme Court has defined as: “[a] 
finding is ‘clearly erroneous’ when al- 

though there is evidence to support it, the 

reviewing court on the entire evidence is 

left with the definite and firm conviction 

that a mistake has been committed.” 

United States v. United States Gypsum 
Co., 333 U.S. 364, 395, 58 S.Ct. 5325, 342, 92 
L.Ed. 746 (1948). 

[19] Whether a disparate impact re- 

flects an intent to discriminate is an ulti 

mate fact which must be reviewed under 

the clearly erroneous standard. Pul/lman- 

Standard v. Swint, 456 U.S. 273, 102 S.Ct. 

1781, 72 L.Ed.2d 66 (1982). In Pullman, 

the Supreme Court said that Fed.R.Civ.P. 

52(a) 

 



  

McCLESKEY v. KEMP 895 
Cite as 753 F.2d 877 (1985) 

does not make exceptions or purport to 

exclude certain categories of factual find- 

"ings from the obligation of a court of 

appeals to accept a district court's find- 

ings unless clearly erroneous. It does 

not divide facts into categories; in partic- 

ular, it does not divide findings of fact 

into those that deal with ‘ultimate’ and 

those that deal with ‘subsidiary’ facts. 

456 U.S. at 287, 102 S.Ct. at 1739. 

There would seem to be two levels of 

findings based on statistical evidence that 

must be reviewed: first, the finding con- 

cerning the validity of the study itself, and 

second, the finding of ultimate fact based 

upon the circumstantial evidence revealed 

by the study, if valid. 

The district court here found the study 

invalid. The court found the statistics of 

the study to be particularly troublesome in 

the areas of the data base, the models and 

the relationship between the independent 

variables. McCleskey v. Zant, 580 F.Supp. 

338, 379 (N.D.Ga.1984). We pretermit a 

review of this finding concerning the validi- 

ty of the study itself. The district court 

went on to hold that even if the statistics 
did validly reflect the Georgia system, the 

ultimate fact of intent to discriminate was 

not proven. We review this finding of fact 
by assuming the validity of the study and 
rest our holding on the decision that the 

study, even if valid, not only supports the 

district judge's decision under the clearly 

erroneous standard of review, but compels 

it. 

Sufficiency of Baldus Study 

McCleskey argues that, although the 
post-Furman statute in Georgia now yields 

more predictable results, the race of the 

victim is a significant, but of course imper- 

missible. factor which accounts for the im- 

position of the death penalty in many cases. 

He supports this argument with the sophis- 

ticated Baldus statistical study that, after 

controlling for the legitimate factors that 

might rationally explain the imposition of 

the penalty, purportedly reveals significant 

race-of-the-victim influence in the system; 

i.e, all other things being equal, white 

victim crimes are more likely to result in 

the penalty. Because the Constitution pro- 

hibits the consideration of racial factors as 

justification for the penalty, McCleskey as- 

serts that the discernible racial influence 

on sentencing renders the operation of the 

Georgia system infirm. 

In addition, McCleskey asserts that the 

race-of-the-victim influence on the system 

is. particularly significant in the range of 

cases involving intermediate levels of ag- 

gravation (mid-range aggravation cases). 

He argues that because his case fell within 

that range, he has established that imper- 

missible racial considerations operated in 

his case. 

We 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. Baldus con- 

cluded that his study showed that system- 
atic and substantial disparities existed in 
the penalties imposed upon homicide de- 

fendants in Georgia based on race of the 

homicide victim, that the disparities existed 

at a less substantial rate in death sentenc- 

ing based on race of defendants, and that 

the factors of race of the victim and de 

fendant were at work in Fulton County. 

A general comment about the limitations 

on what the Baldus study purports t0 

show, although covered in the subsequent 

discussion, may be helpful. 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 sentencing structure in Geor- 

gia. These general statements about the 

results are insufficient to make a legal 

determination. An analysis must be made 

as to how much disparity is actually shown 

by the research. ; 

Accepting the Baldus figures, but not the 

general conclusion, as accurately reflecting 

 



  

896 

the Georgia experience, the statistics are 

inadequate to entitle McCleskey to relief on 

his constitutional claim. : 

The Georgia-based retrospective study 

consisted of a stratified random sample of 

1,066 cases of individuals indicted for mur- 

der-death, murder-life and voluntary man- 

slaughter who were arrested between 

March 28, 1973 and December 31, 1978. 

The data were compiled from a 4l-page 

questionnaire and consisted of more than 

500,000 entries. Through complex statisti- 

cal analysis, Baldus examined relationships 

between the dependent variable, death-sen- 

tencing rate, and independent variables, 

nine aggravating and 75 mitigating factors, 

while controlling for background factors. 

In 10% of the cases a penalty trial was 

held, and in 5% of the cases defendants 

were sentenced to death. 

The study subjects the Georgia data to a 

multitude of statistical analyses, and under 

each method there is a statistically signifi- 

cant race-of-thevictim effect operating 

statewide. It is more difficult, however, to 

ascertain the magnitude of the effect dem- 

onstrated by the Baldus study. The sim- 

ple, unadjusted figures show that death 

sentences were imposed in 11% of the white 

victim cases potentially eligible for the 

death penalty, and in 1% of the eligible 

black victim cases. After controlling for 

various legitimate factors that could ex- 

plain the differential, Baldus still concluded 

that there was a significant race-of-the-vic- 

tim effect. The result of Baldus' most 

conclusive model, on which McCleskey pri- 

marily relies, showed an effect of .06, signi- 

fying that on average a white victim crime 

is 6% more likely to result in the sentence 

than a comparable black victim crime. Bal- 

dus also provided tables that showed the 

race-of-the-victim effect to be most signifi 

cant in cases involving intermediate levels 

of aggravation. In these cases, on aver- 

age, white victim crimes were shown to be 

20% more likely to result in the death pen- 

alty than equally aggravated black victim 

crimes. 

None of the figures mentioned above is a 

definitive quantification of the influence of 

- 753 FEDERAL REPORTER, 2d SERIES 

the victim's race on the overall likelihood of 

the death penalty in a given case. Never 

theless, the figures all serve to enlighten 

us somewhat on how the system operates. 

The 6% average figure is a composite of all 

cases and contains both low aggravation 

cases, where the penalty is almost never 

imposed regardless of the victim's race, 

and high aggravation cases, where both 

white and black victim crimes are likely to 

result in the penalty. When this figure is 

related to tables that classify cases accord- 

ing to.the level of aggravation, the 6% 

average figure is properly seen as an 

aggregate containing both cases in which 

race of the victim is a discernible factor 

and those in which it is not. 

McCleskey's evidence, and the evidence 

presented by the state, also showed that 

the race-of-the-victim factor diminishes as 

more variables are added to the model. 

For example, the bottom line figure was 

17% in the very simple models, dropped to 

6% in the 230-variable model, and finally 

fell to 4% when the final 20 variables were 
added and the effect of Georgia Supreme 

Court review was considered. 

The statistics are also enlightening on 

the overall operation of the legitimate fac- 

tors supporting the death sentence. The 

Baldus study revealed an essentially ration- 

al 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, fac- 

tors 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 deter- 

mines the outcome of a given case. No 

single petitioner could, on the basis of 

these statistics alone, establish that he re- 

ceived 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 

 



  

McCLESKEY v. KEMP 897 
Cite as 753 F2d 877 (1985) 

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. 

The evidence in the Baldus study seems 
to support the Georgia death penalty sys- 
tem 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 opera- 

tion follows the pattern the legislature in- 
tended, which the Supreme Court found 

constitutional in Gregg, and sorts out cases 
according to levels of aggravation, as 

gauged by legitimate factors. The funda- 
mental Eighth Amendment concern of Fur- 

man, as discussed in Gregg, which states 
that “there is no meaningful basis for dis- 
tinguishing the few cases in which [the 

death sentence] is imposed from the many 

in which it is not” does not accurately 
describe the operation of the Georgia stat- 
ute. 428 US. at 188, 9% S.Ct. at 2932. 

[20] Taking the 6% bottom line revealed 
in the Raldus figures as true, this figure is 
not sufficient to overcome the presumption 

that the statute is operating in a constitu- 

tional manner. If any discretionary sys- 

tem, some imprecision must be tolerated, 
and the Baldus study is simply insufficient 

to support a ruling, in the context of a 

statute that is operating much as intended, 

that racial factors are playing a role in the 
outcome sufficient to render the system as 

a whole arbitrary and capricious. 

This conclusion is supported, and possi- 

bly even compelled, by recent Supreme 

Court opinions in Sullivan v. Wainwright, 
— U.S. —, 104 S.Ct. 450, 78 L.Ed.2d 210 
(1983) (denying stay of execution to allow 

evidentiary hearing on Eighth Amendment 

claim supported by statistics); Wainwright 

v. Adams, — U.S. , 104 S.Ct. 2133, 20 

L.Ed.2d 809 (1984) (vacating stay); and 

Wainwright v. Ford, — U.S. , 104 

  

  

S.Ct. 3495, 82 L.Ed.2d 911 (1984) (denying 

state's application to vacate stay on other 

grounds). A plurality of the Court in Ford 

definitively stated that it had held “in two 
prior cases that the statistical evidence re- 
lied upon by Ford to support his claim of 
discrimination was not sufficient to raise a 
substantial ground upon which relief might 
be granted.” Id. at — 104 S.Ct. at 3499, 
82 L.Ed.2d at 912 (citing Sullivan and Ad- 
ams). The petitioners in Sullivan, Adams, 

and Ford all relied on the study by Gross 
and Mauro of the Florida death penalty sys- 
tem. The bottom line figure in the Gross 

and Mauro study indicated a race-of-the-vic- 

tim effect, quantified by a “death odds mul- 
tiplier,” of about 4.8 to 1. Using a similar 
methodology, Baldus obtained a death odds 
multiplier of 4.3 to 1 in Georgia. 

It is of course possible that the Supreme 
Court was rejecting the methodology of the 
Florida study, rather than its bottom line. 

It is true that the methodology of the Bal- 

dus study is superior. The posture of the 
Florida cases, however, persuades this 
Court that the Supreme Court was not 
relying on inadequacies in the methodology 
of the Florida study. The issue in Sulli- 
ran, Adams, and Ford was whether the 

petitioner's proffer had raised a substantial 
ground sufficient to warrant an evidentiary 
hearing. In that context, it is reasonable 
to suppose that the Supreme Court looked 
at the bottom line indication of racial effect 

and held that it simply was insufficient to 

state a claim. A contrary assumption, that 

the Supreme Court analyzed the extremely 
complicated Gross and Mauro study and 
rejected it on methodological grounds, is 

much less reasonable. 

Thus, assuming that the Supreme Court 

in Sullivan, Adams and Ford found the 

bottom line in the Gross and Mauro study 
insufficient to raise a constitutional claim, 

we would be compelled to reach the same 

result in analyzing the sufficiency of the 

comparable bottom line in the Baldus study 
on which McCleskey relies. 

McCleskey's argument about the height- 

ened influence of the race-of-the-victim fac- 

tor in the mid-range of cases requires a 

somewhat different analysis. McCleskey's 

case falls within the range of cases involv- 

 



  

898 

ing intermediate levels of aggravation. 
The Baldus statistical study tended to show 
that the race-of-the-victim relationship to 

sentencing outcome was greater in these 
cases than in cases involving very low or 
very high levels of aggravation. 

The race-of-the-victim effect increases 
the likelihood of the death penalty by ap- 
proximately 20% in the mid-range of cases. 
Some analysis of this 20% figure is appro- 

priate. 

The 20% figure in this case is not analo-. 

gous to a figure reflecting the percentage 
disparity in a jury composition case. Such 
a figure represents the actual disparity 

between the number of minority persons on 
the jury venire and the number of such 

persons in the population. In contrast, the 
20% disparity in this case does not purport 
to be an actual disparity. Rather, the fig- 
ure 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 ef- 

fect. More importantly, Baldus did not tes- 
tify that he found statistical significance in 
the 20% disparity figure for mid-range 

cases, and he did not adequately explain 
the rationale of his definition of the mid- 
range of cases. His testimony leaves this 

Court unpersuaded that there is a rational 

ly classified, well-defined class of cases In 
which it can be demonstrated that a race- 
of-the-victim effect is operating with a 

magnitude approximating 20%. 

[21] Assuming arguendo, however, 

that the 20% disparity is an accurate fig- 

ure, it is apparent that such a dispanty 

only in the mid-range cases, and not in the 

system as a whole, cannot provide the basis 

for a systemwide challenge. As previously 

discussed, the system as a whole is operat- 
ing in a rational manner, and not in a 

manner that can fairly be labeled arbitrary 

or capricious. A valid system challenge 

cannot be made only against the mid-range 

of cases. Baldus did not purport to define 
the mid-range of cases; nor is such a defi 

nition possible. It is simply not satisfac- 

tory to say that the racial effect operates in 

753 FEDERAL REPORTER, 2d SERIES 

“close cases” and therefore that the death 
penalty will be set aside in “close cases.” 

[22] As discussed previously, the statis- 
tics cannot show that the race-of-the-victim 

factor operated in a given case, even in the 
mid-range. Rather, the statistics show 
that, on average, the race-of-the-victim fac. 
tor was more likely to affect the outcome 
in mid-range cases than in those cases at 
the high and low ends of the spectrum of 
aggravation. The statistics alone are in- 

sufficient to show that McCleskey’s sen- 
tence was determined by the race of his 

victim, or even that the race of his victim 
contributed to the imposition of the penalty 
in his case. 

MecCleskey’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 motivat- 
ed the jury to impose the death sentence in 
his case. 

Conclusion 

The Supreme Court has held that to be 
constitutional the sentencer in death sen- 

tence cases must have some measure of 

discretion. Gregg v. Georgia, 428 U.S. 153, 
96 S.Ct. 2909, 49 L.Ed.2d 839 (1976);. Prof 

fitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 
49 L.Ed.2d 913 (1976). The mandatory 
death sentence statutes were declared un- 

constitutional. Woodson v. North Caroli- 
na, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 

944 (1976); Roberts v. Louisiana, 428 US. 

25, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). 

The very exercise of discretion means 

that persons exercising discretion may 

reach different results from exact dupl- 

cates. Assuming each result is within the 

range of discretion, all are correct in the 

eyes of the law. It would not make sense 

for the system to require the exercise of 

discretion in order to be facially constitu- 

tional, and at the same time hold 2 system 
unconstitutional in application where that 

discretion achieved different results for 

what appear to be exact duplicates, absent 

the state showing the reasons for the dif- 

ference. The discretion is narrow, focused 

 



  

McCLESKEY v. KEMP 899 
Cite as 753 F2d 877 (1985) 

and directed, but still there is a measure of 

discretion. 

The Baldus approach, however, would 

take the cases with different results on 

what are contended to be duplicate facts, 

where the differences could not be other- 

wise explained, and conclude that the dif- 

ferent result was based on race alone. 

From a legal perspective, petitioner woul 

argue that since the difference is not ex- 

plained by facts which the social scientist 

thinks satisfactory to explain the differ 

ences, there is a prima facie case that the 

. difference was based on unconstitutional 

factors, and the burden would shift to the 

state to prove the difference in results 

from constitutional considerations. This 
approach ignores the realities. It not only 
ignores quantitative differences in cases: 

looks, age, personality, education, profes- 
sion, job, clothes, demeanor, and remorse, 

just to name a few, but it is incapable of 
measuring qualitative differences of such 
things as aggravating and mitigating fac- 
tors. There are, in fact, no exact dupli- 

cates in capital crimes and capital defend- 
ants. Thé type of research submitted here 
tends to show which of the directed factors 
were effective, but is of restricted use in 
showing what undirected factors control 
the exercise of ‘constitutionally required 

discretion. 

It was recognized when Gregg was decid- 

ed that the capital justice system would not 
be perfect, but that it need not be perfect 

in order to be constitutional. Justice White 

said: : 

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

may be as a punishment, government, 

created and run as it must be by humans, 

is inevitably incompetent to administer it. 

This cannot be accepted as a proposition 

of constitutional law. Imposition of the 

death penalty is surely an awesome re- 

sponsibility for any system of justice and 

those who participate in it. Mistakes will 

be made and discriminations will occur 

which will be difficult to explain. How- 

ever, one of society's most basic tasks is 

that of protecting the lives of its citizens 

and one of the most basic ways in which 

it achieves the task is through criminal 

laws against murder. 

Gregg v. Georgia, 428 U.S. 153, 226, 96 
S.Ct. 2909, 2949, 49 L.Ed.2d 859 (1976) 
(White, J., concurring). 

The plurality opinion of the Gregg Court. 

noted: 

The petitioner's argument is nothing 

more than a veiled contention that Fur- 

man indirectly outlawed capital punish- 

ment by placing totally unrealistic condi- 
tions on its use. In order to repair the 
alleged defects pointed to by the petition- 

er, it would be necessary to require that 

prosecuting authorities charge a capital 

offense whenever arguably there had 
been a capital murder and that they re- 
fuse to plea bargain with the defendant. 
If a jury refused to convict even though 
the evidence supported the charge, its 

verdict would have to be reversed and a 

verdict of guilty entered or a new trial 
ordered, since the discretionary act of 

jury nullification would not be permitted. 
Finally, acts of executive clemency would 
have to be prohibited. Such a system, of 
course, would be totally alien to our no- 

tions of criminal justice. 

Id at 1992 n. 50, 96 S.Ct. at 2937 n. 30 
(opinion of Stewart, Powell, and Stevens, 

33.) 

Viewed broadly, it would seem that the 

statistical evidence presented here, assum- 

ing its validity, confirms rather than con- 
demns the system. In a state where past 

discrimination is well documented, the 

study showed no discrimination as to the 

race of the defendant. The marginal dis- 
parity 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. In pre- 

Furman days, there was no rhyme or rea- 

son as to who got the death penalty and 

who did not. But now, in the vast majority 

of cases, the reasons for a difference are 

well documented. That they are not so 

clear in a small percentage of the cases is 

no reason to declare the entire system un- 

constitutional. 

 



  

900 

The district court properly rejected this 

aspect of McCleskey’s claim. 

INEFFECTIVE ASSISTANCE 

OF COUNSEL 

McCleskey contends his trial counsel ren- 

dered ineffective assistance at both 

guilt/innocence and penalty phases of his 

trial in violation of the Sixth Amendment. 

[23,24] Although a defendant is consti- 

tutionally entitled to reasonably effective 

assistance from his attorney, we hold that 

McCleskey has not shown he was preju- 

diced by the claimed defaults in his coun- 

sel’s performance. Ineffective assistance 

warrants reversal of a conviction only 

when there is a reasonable probability that 

the attorney's errors altered the outcome 

of the proceeding. A court may decide an 

ineffectiveness claim on the ground of lack 

of prejudice without considering the rea- 

sonableness of the attorney’s performance. 

Strickland v. Washington, — US. —, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1934). 

As to the guilt phase of his trial. McCles- 

key claims that his attorney failed to: (1) 

interview the prisoner who testified that 

McCleskey gave a jail house confession; (2) 

interview and subpoena as defense witness- 

es the victims of the Dixie Furniture Store 

robbery; and (3) interview the State's bal- 

listics expert. 

25] McCleskey demonstrates no preju- 

dice caused by his counsel's failure to inter- 

view Offie Evans. We have held there was 

no reasonable likelihood that the disclosure 

of the detective’s statement to Offie Evans 

would have affected the verdict. There is 

then no “reasonable probability” that the 

attorney’s failure to discover this evidence 

affected the verdict. 

[26] As to the robbery victims, McCles- 

key does not contend that an in-person 

interview would have revealed something 

their statements did not. He had an oppor- 

tunity to cross-examine several of the rob- 

bery victims and investigating officers at 

McCleskey's preliminary hearing. The rea- 

sonableness of the attorney's investigation 

753 FEDERAL REPORTER, 2d SERIES 

need not be examined because there wag 

obviously no prejudice. 

[27] The question is whether it was un- 

reasonable not to subpoena the robbery 

victims as defense witnesses. McCleskey’s 

attorney relied primarily on an alibi de- 

fense at trial. To establish this defense, 

the attorney put McCleskey on the stand. 

He also called several witnesses in an at 

tempt to discredit a Dixie Furniture Store 

employee's identification of McCleskey and 

to show that McCleskey’s confession was 

involuntary. It would have undermined his 
defense if the attorney had called witness- 
es to testify as to which robber did the 

shooting. No prejudice can be shown by 

failing to subpoena witnesses as a reason- 

able strategy decision. 

[28] McCleskey’s attorney could have 

reasonably prepared to cross-examine the 

State's ballistics expert by reading the ex- 

pert’s report. No in-person interview was 

necessary. See Washington v. Watkins, 

655 F.2d 1346, 1358 (5th Cir.1981), cert. 

denied, 456 U.S. 949, 102 S.Ct. 2021, 72 

L.Ed.2d 474 (1982). The report was in the 

prosecutor's file which the attorney re 

viewed and no contention has been made 

that he did not read it. 

As to the sentencing phase of his trial, 

McCleskey asserts his attorney failed to 

investigate and find character witnesses 

and did not object to the State's introduc- 

tion of prior convictions which had been set 

aside. 

[29] No character witnesses testified 

for McCleskey at his trial. At the State 

habeas corpus hearing McCleskey's attor- 

ney testified he talked with both McCles- 

key and his sister about potential character 

witnesses. They suggested no possibilities. 

The sister refused to testify and advised 

the attorney that their mother was too sick 

to travel to the site of the trial. McCleskey 

and his sister took the stand at the State 

habeas corpus hearing and told conflicting 

stories. It is clear from the state court's 

opinion that it believed the attorney: 

Despite the conflicting evidence on his 

point, ... the Court is authorized in its 

 



  

-McCLESKEY v. KEMP 901 
Clte as 753 F2d 877 (1985) 

role as fact finder to conclude that Coun- 

sel made all inquiries necessary to 

_ present an adequate defense during the 

sentencing phase. Indeed, Counsel could 

not present evidence that did not exist. 

Although this “finding of fact” is stated in 

terms of the ultimate legal conclusion, im- 

plicit in that conclusion is the historical 

finding that the attorney's testimony was 

credible. See Paxton v. Jarvis, 735 F.2d 

1306, 1308 (11th Cir.1984); Coz v. Mont- 

gomery, T18 F.2d 1036 (11th Cir.1983). 

This finding of fact is entitled to a pre- 

sumption of correctness. Based on the 

facts as testified to by the attorney, he 

conducted a reasonable investigation for 

character witnesses. 

(30] As evidence of an aggravating cir- 

cumstance the prosecutor introduced three 

convictions resulting in life sentences, all 

of which had been set aside on Fourth 

Amendment grounds. This evidence could 

not result in any undue prejudice, because 

although the convictions were overturned, 

the charges were not dropped and McCles- 

key pleaded guilty and received sentences 

of 18 years. The reduction in sentence was 

disclosed at trial. 

The district court properly denied relief 

on the ineffectiveness of counsel claim. 

DEATH-ORIENTED JURY 

[31] Petitioner claims the district court 

improperly upheld the exclusion of jurors 

who were adamantly opposed to capital 

punishment. According to petitioner, this 

exclusion violated his right to be tried by 

an impartial and unbiased jury drawn from 

a representative cross-section of his com- 

munity. In support of this proposition, pe- 

titioner cites two district court opinions 

from outside circuits. Grigsby v. Mabry, 

369 F.Supp. 1273 (E.D.Ark.1983), hearing 

en banc ordered, No. 83-2113 EA. (8th 

Cir. Nov. 8, 1983), argued (March 15, 1984) 

and Keeten v. Garrison, 578 F.Supp. 1164 

(W.D.N.C.1984), rev'd, 742 F.2d 129 (4th 

Cir.1984). Whatever the merits of those 

opinions, they are not controlling authority 

for this Court. 

partial, 

Because both jurors indicated they would 

not under any circumstances consider im- 

posing the death penalty, they were proper- 

ly excluded under Witherspoon 1. Illinots, 

391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 

(1968). See also Boulden v. Holman, 394 

US. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 

(1969). Their exclusion did not violate peti- 

tioner's Sixth Amendment rights to an im- 

community-representative jury. 

Smith v. Balkcom, 660 F.2d 373, 582-83 

(5th Cir. Unit B 1981), cert. denied, 459 

U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 

(1982); Spinkellink v. Wainwright, 578 

F.2d 582, 393-94 (5th Cir.1978), cert. de- 

nied, 440 U.S. 976, 99 S.Ct. 1543, 59 

L.Ed.2d 796 (1979). 

THE SANDSTROM ISSUE 

The district court rejected McCleskey's 

claim that the trial court’s instructions to 

the jury on the issue of intent deprived him 

of due process by shifting from the prose- 

cution to the defense the burden of proving 

beyond a reasonable doubt each essential 

element of the crimes for which he was 

tried. Such burden-shifting is unconstitu- 

tional under Sandstrom v. Montana, 442 

US. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 

(1979). 

McCleskey objects to the following por- 

tion of the trial court's instruction to the 

jury: 

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. 

In its analysis of whether this instruction 

was unconstitutional under Sandstrom, 

the district court examined two recent pan- 

el opinions of this Circuit, Franklin wv 

Francis. 720 F.2d 1206 (11th Cir.1983), 

£104 §.Ct, 2677, 

  

cert. granted, — U.S. 

81 L.Ed.2d 873 (1984), and Tucker v. Fran- 

cis, 723 F.2d 1504 (11th Cir), on pel. for 

reh’y and reh'g en banc, 723 F.2d 1518 

Even though the {11th Cir.1984). jury in- 
- 

 



  

902 

structions in the two cases were identical, 
Franklin held that the language created a 
mandatory rebuttable persumption viola- 
tive of Sandstrom while Tucker held that 
it created no more than a permissive infer- 
ence and did not violate Sandstrom. Not- 
ing that the challenged portion of the in- 
struction used at McCleskey’'s trial was 
“virtually identical” to the corresponding 
portions of the charges in Franklin and 
Tucker, the district court elected to follow 
Tucker as this Court’s most recent pro 
nouncement on the issue, and it held that 

Sandstrom was not violated by the charge 
on intent. 

Since the district court's decision, the en 

banc court has heard argument in several 
cases in an effort to resolve the constitu- 
tionality of potentially burden-shifting in- 
structions identical to the one at issue here. 

Daris v. Zant, 721 F.2d 1478 (11th Cir. 

1983), on pet. for rer’g and reh’g en banc, 

728 F.2d 492 (11th Cir.1984); Drake wv. 

Francis, 727 F.2d 990 (11th Cir.), on pet. 

for reh’g and for reh’g en banc, 727 F.2d 
1003 (11th Cir.1984); Tucker v. Francis, 

723 F.2d 1504 (11th Cir.), on pet. for reh’y 
and ren'y em banc, 723 F.2d 1518 (11th 

Cir.1984). The United States Supreme 
Court has heard oral argument in Frank- 

lin v. Francis, 53 US.L.W. 3373 (U.S. Nov. 

20, 1984) [No. 83-1530]. However these 
cases are decided, for the purpose of this 
decision, we assume here that the intent 

instruction in this case violated Sandstrom 

and proceed to the issue of whether that 

error was harmless. 

The Supreme Court requires that “before 
a federal constitutional error can be harm- 

less, the court must be able to declare a 

belief that it was harmless beyond a rea- 

sonable doubt.” Chapman v. California, 

386 US. 18, 24, 87 S.Ct. 224 828 17 

L.Ed.2d 705 (1967). More recently, the Su- 

preme Court has divided over the issue of 

whether the doctrine of harmless error is 

ever applicable to burden-shifting presump- 

tions violative of Sandstrom. Reasoning 

that “[a]n erroneous presumption on a dis- 

puted element of the crime renders irrele- 

vant the evidence on the issue because the 

jury may have relied upon the presumption 

753 FEDERAL REPORTER, 2d SERIES 

rather than upon that evidence,” a four-jus. 
tice plurality held that one of the two tests 
for harmless error employed by this Cir- 

cuit—whether the evidence of guilt is so 
overwhelming that the erroneous instrue- 

tion could not have contributed to the 
jury’s verdict—is inappropriate. Connecti- 
cut v. Johnson, 460 U.S. 73, 85-87, 103 

S.Ct. 969, 976-978, 74 L.Ed.2d 823 (1983). 
The fifth vote to affirm was added by 

Justice Stevens, who concurred on jurisdic- 

tional grounds. Jd. at 88, 103 S.Ct. at 978 
(Stevens, J., concurring in the judgment). 
Four other justices, however, criticized the 

plurality for adopting an “automatic rever- 
sal” rule for Sandstrom error. [d. at 98, 
103 S.Ct. at 983 (Powell, J., dissenting). 

The Supreme Court has subsequently re 
viewed another case in which harmless er- 

ror doctrine was applied to a Sandstrom 
violation. The Court split evenly once 
again in affirming without opinion a Sixth 
Circuit decision holding that “the prejudi- 
cial effect of a Sandstrom instruction is 
largely a function of the defense asserted 

at trial.” Engle v. Koehler, 707 F.2d 24], 
246 (6th Cir.1983), aff'd by an equally di- 
vided court, U.S. —, 104 S.Ct. 1673, 

20 L.Ed.2d 1 (1984) (per curiam). In En- 
gle, the Sixth Circuit distinguished between 
Sandstrom violations where the defendant 
has claimed nonparticipation in the crime 
and those where the defendant has claimed 
lack of mens rea, holding that only the 

latter was so prejudicial as never to const- 

tute harmless error. Jd. Until the Su- 

preme Court makes a controlling decision 

on the harmless error question, we contin- 

ue to apply the standards propounded in 
our earlier cases. 

  

[32] Since Sandstrom was decided in 

1979, this Circuit has analyzed unconstitu- 
tional burden-shifting instructions to deter- 

mine whether they constituted harmless er- 

ror. See, e.g., Mason v. Balkcom, 669 F.2d 
222, 227 (5th Cir. Unit B 1982). In Lamb ». 

Jernigan, 683 F.2d 1332 (11th Cir.1932), 
cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 

75 L.Ed.2d 496 (1983), the Court identified 

two situations in which an unconstitutional 

burden-shifting instruction might be harm- 

 



  

McCLESKEY v. KEMP 903 
Cite as 753 F.2d 877 (1985) 

less. First, an erroneous instruction may 

have been harmless if the evidence of guilt 

was so overwhelming that the error could 

not have contributed to the jury's decision 

to convict. Lamb, 683 F.2d at 1342; Ma- 

son, 669 F.2d at 227. In the case before 

us, the district court based its finding that 

the Sandstrom violation was harmless on 

this ground. This Circuit has decided on 

several occasions that overwhelming evi 

dence of guilt renders a Sandstrom viola- 

tion harmless. See Jarrell v. Balkcom, 

735 F.2d 1242, 1257 (11th Cir.1984); Brooks 

v. Francis, 716 F.2d 780, 793-94 (11th Cir. 

1983), on pet. for reh'g and for reh’g en 

bane, 728 F.2d 1358 (11th Cir.1984); Spenc- 

er v. Zant, 715 F.2d 1562, 1578 (11th Cir. 

1983), on pet. for reh’y and for reh’g en 

banc, 729 F.2d 1293 (11th Cir.1984). 

[33] Second, the erroneous instruction 

may be harmless where the instruction 

shifts the burden on an element that is not 

at issue at trial. Lamb, 683 F.2d at 1342. 

This Circuit has adopted this rationale to 

find a Sandstrom violation harmless. See 

Drake v. Francis, 727 F.2d 990, 999 (11th 

Cir.), on pet. for reh’q and for rehg en 

banc, 127 F.2d 1003 (11th Cir.1984); Col- 

lins v. Francis, 728 F.2d 1322, 1330-31 

(11th Cir.1984), pet. for reh’g en banc de- 

nied, 734 F.2d 1481 (11th Cir.1984). There 

is some indication that even the plurality in 

Connecticut v. Johnson would endorse 

this type of harmless error in limited cir- 

cumstances: 

[A] Sandstrom error may be harmless 

if the defendant conceded the issue of 

intent.... In presenting a defense such 

as alibi, insanity, or self-defense, a de- 

fendant 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. 

460 U.S. at 87, 103 S.Ct. at 978 (citations 

omitted). 

Our review of the record reveals that the 

Sandstrom violation in this case is ren- 

dered harmless error under this second 

test. Before discussing whether intent 

was at issue in McCleskey's trial, however, 

we note that intent is an essential element 

of the crime with which he was charged. 

Georgia law provides three essential ele 

ments to the offense of malice murder: (1) 

a homicide; (2) malice aforethought; and 

(3) unlawfulness. Lamb v. Jernigan, 683 

F.2d at 1336. The “malice” element means 

the intent to kill in the absence of provoca- 

tion. Jd. The erroneous instruction on 

intent, therefore, involved an essential ele- 

ment of the criminal offense charged, and 

the state was required to prove the exist 

ence of that element beyond a reasonable, 

doubt. In re Winship, 397 U.S. 358, 364, 

90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1270). 

The question therefore b&comes whether 

McCleskey conceded the element of intent 

by presenting a defense that admits that 

the act alleged was intentional. 

[34] Of course, a defendant in a crimi- 

nal trial may rely entirely on the presump- 

tion of innocence and the State’s burden of 

proving every element of the crime beyond 

a reasonable doubt. Connecticut v. Joan- 

son, 460 U.S. at 87 n. 16, 103 S.Ct. at 978 n. 

16. In such a case, determining whether a 

defendant had conceded the issue of intent 

might well be impossible. The record re- 

veals, however, that McCleskey chose not 

to take that course. 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. The end of McCleskey’s 

testimony on direct examination summa- 

rizes his alibi defense: 

Q. Were you at the Dixie Furniture 

Store that day? 

A. No. 

Q. Did you shoot anyone? 

A. No, ! didn’t. 

Q. Is everything you have said the 

truth? 

A. Positive. 

In closing argument, McCleskey's attorney 

again stressed his client's alibi defense. 

He concentrated on undermining the credi- 

bility of the evewitness identifications that 

 



  

. 904 

pinpointed McCleskey as the triggerman 
and on questioning the motives of the other 
robbery participants who had testified that 
McCleskey had fired the fatal shots. 
McCleskey’s attorney emphasized that 

if Mr. McCleskey was in the front of the 
store and Mr. McCleskey had the silver 
gun and if the silver gun killed the police 
officer, then he would be guilty. But 

that is not the circumstances that have 

been proven. 

Although McCleskey’s attorney’s argu- 
ments were consistent with the alibi testi- 
mony offered by McCleskey himself, the 
jury chose to disbelieve that testimony and 

rely instead on the testimony of eyewit- 

nesses and the other participants in the 

robbery. 

[35,36] We therefore hold that in the 
course of asserting his alibi defense 
McCleskey effectively conceded the issue 

of intent, thereby rendering the Sand- 
strom violation harmless beyond a reason- 
able doubt. In so holding, we do not imply 
that whenever a defendant raises a defense 

of alibi a Sandstrom violation on an intent 
or malice instruction is automatically ren- 

dered harmless error. Nor do we suggest 
that defendant must specifically argue that 

intent did not exist in order for the issue of 

intent to remain before the jury. But 

where the State has presented overwhelm- 
ing evidence of an intentional killing and 
where the defendant raises a defense of 
nonparticipation in the crime rather than 
lack of mens rea, a Sandstrom violation 

on an intent instruction such as the one at 

issue here is harmless beyond a reasonable 

doubt.: See Collins v. Francis, 728 F.2d at 
1331; Engle v. Koehler, 707 F.2d at 246. 

In this case the officer entered and made 

it almost to the middle of the store before 

he was shot twice with a .38 caliber Rossi 

revolver. The circumstances of this shoot- 

ing, coupled with McCleskey’s decision to 

rely on an alibi defense, elevate to mere 

speculation any scenario that would create 

a reasonable doubt on the issue of intent. 

The district court properly denied habeas 

corpus relief on this issue. 

753 FEDERAL REPORTER, 2d SERIES 

CONCLUSION 

The judgment of the district court ip 
granting the petition for writ of habeas 
corpus is reversed and the petition is here 

by denied. 

REVERSED and RENDERED. 

TJOFLAT, Circuit Judge, concurring: 

I concur in the court's opinion, though | 
would approach the question of the consti 
tutional application of the death penalty in 

.. Georgia somewhat differently. I would be 
gin with the established proposition that 
Georgia's capital sentencing.model is facial- 
ly constitutional. It contains the safe 

guards necessary to prevent arbitrary and 

- capricious decision making, including deci 
sions motivated by the race of the defend: 

ant or the victim. These safeguards are 

present in every stage of a capital murder 
prosecution in Georgia, from the grand 

jury indictment through the execution of 
the death sentence. Some of these safe- 
guards are worth repeating. 

At the indictment stage, the accused can 

insist that the State impanel a grand jury 

that represents a fair cross section of the 
community, as required by the sixth and 

fourteenth amendments, and that the State 

not deny. a racial group, in violation of the 

equal protection clause of the fourteenth 

amendment, the right to participate as jur- 

ors. In Georgia this means that a repre 

sentative portion of blacks will be on the 

grand jury. ; 

The same safeguards come into piay in 
the selection of the accused's petit jury. In 
addition, the accused can challenge for 

cause any venireman found to harbor a 

racial bias against the accused or his vie 

tim. The accused can peremptorily excuse 

jurors suspected of such bias and, at the 

same time, prevent the prosecutor from 

exercising his peremptory challenges in a 

way that systematically excludes a particu- 

lar class of persons, such as blacks, from 

jury service. See, e.g, Willis v. Zant, 720 
2d 1212 (11th Cir.1983), cert. denied, — 

, 104 S.Ct. 3548, 82 L.Ed.2d 831   

 



  

McCLESKEY v. KEMP 905 
Cite as 753 F2d 877 (1989) 

If the sentencer is the jury, as it is in 

Georgia (the trial judge being bound by the 

jury’s recommendation), it can be instruct 

ed to put aside racial considerations in 

reaching its sentencing recommendation. 

If the jury recommends the death sentence, 

the accused, on direct appeal to the Georgia 

Supreme Court, can challenge his sentence 

on racial grounds as an independent assign- 

ment of error or in the context of propor- 

tionality review. And, if the court affirms 

his death sentence, he can renew his chal 

lenge in a petition for rehearing or by way 

of collateral attack. g 

In assessing the constitutional validity of 

Georgia's capital sentencing scheme, one 

could argue that the role of the federal 

courts—the Supreme Court on certiorari 

from the Georgia Supreme Court and the 

entire federal judicial system in habeas cor- 

pus review—should be considered. For 

they provide still another layer of safe 

guards against the arbitrary and capricious 

imposition of the death penalty. 

Petitioner, in attacking his conviction and 

death sentence, makes no claim that either 

was motivated by a racial bias in any stage 

of his criminal prosecution. His claim 

stems solely from what has transpired in 

other homicide prosecutions. To the extent 

that his data consists of cases in which the 

defendant's conviction and sentence— 

whether a sentence to life imprisonment or 

death—is constitutionally unassailable, the 

data, | would hold, indicates no invidious 

racial discrimination as a matter of law. 

To the extent that the data consists of 

convictions and/or sentences that are con- 

stitutionally infirm, the data is irrelevant. 

In summary, petitioner's data, which shows 

nothing more than disproportionate sen- 
tencing results, is not probative of a racially 

discriminatory motive on the part of any of 

the participants in Georgia's death penalty 

sentencing model—either in petitioner's or 

any other case. 

1. 1 have not addressed the due process analysis 

employed by the district court because the peti- 

VANCE, Circuit Judge, concurring: 

Although I concur in Judge Roney’s opin- 

ion, I am troubled by its assertion that 

there is “little difference in the proof that 

might be required to prevail” under either 

eighth amendment or fourteenth amend- 

ment equal protection claims of the kind 

presented here!. According to Furman, 

an eighth amendment inquiry centers on. 

the general results of capital sentencing 

systems, and condemns those governed by 

such unpredictable factors as chance, ca- 

price or whim. An equal protection inquiry 

is very different. It centers-not on system- 

ic irrationality, but rather the independent 

evil of intentional, invidious discrimination 

against given individuals. 

I am conscious of the dicta in the various 

Furman opinions which note with disap- 

proval the possibility that racial discrimina- 

tion was a factor in the application of the 

death penalty under the Georgia and Texas 

statutes then in effect. To my mind, how- 

ever, such dicta merely indicate the possi- 

bility that a system that permits the exer- 

cise of standardless discretion not only may 

be capricious, but may give play to discrim- 

inatory motives which violate equal protec: 

tion standards as well. Whether a given 

set of facts make out an eighth amendment 

claim of systemic irrationality under Fur- 

man is, therefore, a question entirely inde- 

pendent of whether those facts establish 

deliberate discrimination violative of the 

equal protection clause. 

[ am able to concur because in neither 

the case before us nor in any of the others 

presently pending would the difference in- 

fluence the outcome. As Judge Roney 

points out, petitioner's statistics are insuffi- 

cient to establish intentional! discrimination 

in the capital sentence imposed in his case. 

As to the eighth amendment, I doubt that a 

claim of arbitrariness or caprice is even 

presented, since petitioner's case is entirely 

devoted to proving that the death penalty is 

being applied in an altogether explicadble— 

albeit impermissible—{ashion. 

tioner did not rely on it in his brief. 

 



  

906 

Claims such as that of petitioner are now 

presented with such regularity that we 

may reasonably hope for guidance from the 

Supreme Court by the time my expressed 

concerns are outcome determinative in a 

given case. 

KRAVITCH, Circuit Judge, concurring: 

I concur in the majority opinion except as 

to the Giglio issue. In my view, for rea- 

sons stated in Chief Judge Godbold’s dis- 

sent, the facts surrounding Evans’ testimo- 

ny did constitute a Giglio violation. I 

agree with the majority, however, that any 

error was harmless beyond a reasonable 

doubt. 

1 also join Judge Anderson's special con- 

currence on the “Constitutional Application 

of the Georgia Death Penalty.” 

R. LANIER ANDERSON, III, Circuit 

Judge, concurring with whom KRAVITCH, 

Circuit Judge, joins as to the constitutional 

application of the Georgia Death Statute: 

I join Judge Roney’s opinion for the ma- 

jority, and write separately only to empha- 

size, with respect to the Part entitled “Con- 

stitutional Application of Georgia's Death 

Penalty,” that death is different in kind 

from all other criminal sanctions, Woodson 

v. North Carolina, 428 U.S. 280, 305, 96 

S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). 

Thus, the proof of racial motivation re- 

quired in a death case, whether pursuant to 

an Eighth Amendment theory or an equal 

protection theory, presumably would be 

less strict than that required in civil cases 

or in the criminal justice system generally. 

Constitutional adjudication would tolerate 

less risk that a death sentence was influ- 

enced by race. The Supreme Court's 

Eighth Amendment jurisprudence has es- 

tablished a constitutional supervision over 

the conduct of state death penalty systems 

which is more exacting than that with re- 

spect to the criminal justice system gener- 

ally. Woodson vr. North Carolina, 1d. at 

305, 96 S.Ct. at 2991 (“Because of that 

qualitative difference, there is a corre 

[ concur in * | dissent on only the Giglio issue. 

753 FEDERAL REPORTER, 2d SERIES 

sponding difference in the need for reliabil- 

ity in the determination that death is the 

appropriate punishment”). There is no 
need in this case, however, to reach out and 

try to define more precisely what evidentia- 

ry showing would be required. Judge Ro- 
ney’s opinion demonstrates with clarity 
why the evidentiary showing in this case is 

insufficient. 

GODBOLD, Chief Judge, dissenting in 
part, and concurring in part, with whom 

JOHNSON, HATCHETT and CLARK, Cir- 
cuit Judges, join as to the dissent on the 
Giglio issue *: pL 

"At the merits trial Evans, who had been 
incarcerated with McCleskey, testified that 

McCleskey admitted to him that he shot the 

policeman and acknowledged that he wore 

makeup to disguise himself during the rob- 

bery. Evans also testified that he had 

pending against him a [federal] escape 

charge, that he had not asked the prosecu- 

tor to “fix” this charge, and that the prose 

cutor had not promised him anything to 

testify. 

At the state habeas hearing the follow- 

ing transpired: 

The Court: Mr. Evans, let me ask you a 

question. At the time that you testified 

in Mr. McCleskey’s trial, had you been 

promised anything in exchange for your 

testimony? . 

The witness: No, I wasn’t. [ wasn't 

promised nothing about—I wasn’t prom- 

ised nothing by the D.A. But the Detec- 

tive 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. 

By Mr. Stroup: 

Q: The Detective told you that he would 

speak a word for you? 

A: Yeah. 

Q: That was Detective Dorsey? 

A: Yeah. 

State Habeas Transcript at 122. 

The district court granted habeas relief 

to McCleskey under Giglio v. U.S, 405 

Judge Roney's opinion on all other issues.’ 

 



  

McCLESKEY v. KEMP 907 
Clte as 733 F.2d 877 (1985) 

U.S. 150, 92 S.Ct 1783, 31 L.Ed.24 104 
(1972). At the threshold the district court 
pointed out that Giglio applies not only to 
“traditional deals” made by the prosecutor 
in exchange for testimony but also to “any 
promises or understandings made by any 

member of the prosecutorial team, which 

includes police investigators.” 580 F.Supp. 
at 380. The court then made these subsidi- 
ary findings: (1) that Evans's testimony was 
highly damaging; (2) that “the jury was 
clearly left with the impression that Evans 
was unconcerned about any charges which 
were pending against him and that no 
promises had been made which would af- 
fect his credibility,” id. at 381; (3) that at 

petitioner's state habeas hearings Evans 
testified “that one of the detectives investi 
gating the case had promised to speak to 
federal authorities on his behalf,” id.; (4) 

that the escape charges pending against 
Evans were dropped subsequent to McCles- 
key’s trial. 

The en banc court seems to me to err on 

several grounds. It blurs the proper appli- 
cation of Giglio by focusing sharply on the 
word “promise.” 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 testimo- 

ny.” Smith v. Kemp, 715 F.2d 1459, 1467 
(11th Cir.1983). Giglio reaches the infor- 
mal understanding as well as the formal. 
The point is, even if the dealings are infor- 

mal, can the witness reasonably view the 

government's undertaking as offering him 

a benefit and can a juror knowing of it 

reasonably view it as motivating the wit 

ness in giving testimony? The verbal un- 

dertaking made in this instance by an in- 

vestigating state officer, who is a member 

of the prosecution team, that he will “put 

in a word for him” on his pending federal 
charge was an undertaking that a jury was 

entitled to know about. 

Second, the en banc court finds the bene- 
fit too marginal. Of course, the possible 

benefit to a potential witness can be so 

minimal that a court could find as a matter 

1. This was the description given at trial by Dr. 

of law no Giglio violation occurred. A 
trivial offer is not enough. The subject 

matter of the offer to Evans was substan- 
tial, or at least a jury was entitled to con- 

sider it so. After McCleskey was tried and 
convicted, the federal charge was dropped. 

Third, the court concludes there was no 

reasonable likelihood that Evans’s testimony 

affected the judgment of the jury. Co-de- 
fendant Wright was the only eyewitness. 
He was an accomplice, thus his testimony, 

unless corroborated, was insufficient to es- 
tablish that McCleskey was the trigger- 
man. The en banc court recognizes this 

problem but avoids it by holding that 
Wright's testimony was corroborated by 
“McCleskey’s own confession.” This could 

refer to either of two admissions of guilt 

by McCleskey. He “confessed” to Wnght, 
but Wright's testimony on this subject 
could not be used to corroborate Wright's 
otherwise insufficient accomplice testimo- 

ny. Testimony of an accomplice cannot be 

corroborated by the accomplice’s own testi- 
mony. The other “confession” was made 

to Evans and testified to by Evans. Thus 

Evans is not a minor or incidental witness. 
Evans’ testimony, describing what McCles- 

key “confessed” to him, is the corrobora- 

tion for the testimony of the only eyewit- 
ness, Wright. And that eyewitness gave 
the only direct evidence that McCleskey 
killed the officer. 

The district court properly granted the 
writ on Giglio grounds. Its judgment 

should be affirmed. 

JOHNSON, Circuit Judge, dissenting in 

part and concurring in part, with whom 

HATCHETT and CLARK, Circuit Judges 
join: 

Warren McCleskey has presented con- 

vincing evidence to substantiate his claim 

that Georgia has administered its death 
penalty in a way that discriminates on the 

basis of race. The Baldus Study, charac- 

terized as “far and away the most complete 

and thorough analysis of sentencing’ ever 

carried out,! demonstrates that in Georgia 

Richard Berk, member of a panel of the Nation- 

 



  

908 

a person who kills a white victim has a 

higher risk of receiving the death penalty 

than a person who kills a black victim. 

Race alone can explain part of this higher 

risk. The majority concludes that the evi- 

dence “confirms rather than condemns the 

system” and that it fails to support a con- 

stitutional challenge. [ disagree. 

opinion, this disturbing evidence can and 

does support a constitutional claim under 

the Eighth Amendment. In holding other- 

wise, the majority commits two critical er- 

rors: it requires McCleskey to prove that 

the State intended to discriminate against 

him personally and it underestimates what 

his evidence actually did prove. I will ad- 

dress each of these concerns before com- 

menting briefly on the validity of the Bal- 

dus Study and addressing the other issues 

in this case. 

I. THE EIGHTH AMENDMENT AND 

RACIAL DISCRIMINATION IN THE 

ADMINISTRATION OF THE DEATH 

PENALTY 

McCleskey claims that Georgia adminis- 

ters the death penalty in a way that dis- 

criminates on the basis of race. The dis- 

trict court opinion treated this argument as 

one arising under the Fourteenth Amend- 

ment ? and explicitly rejected the petition- 

er's claim that he could raise the argument 

under the Eighth Amendment, as well. 

The majority reviews each of these possibil- 

ities and concludes that there is little dif- 

ference in the proof necessary to prevail 

under any of the theories: whatever the 

constitutional source of the challenge, a 

petitioner must show a disparate impact 

great enough to compe! the conclusion that 

purposeful discrimination permeates the 

system. These positions reflect a misun- 

derstanding of the nature of an Eighth 

Amendment ciaim in the death penalty con- 

text: the Eighth Amendment prohibits the 

racially discriminatory application of the 

al Academy of Sciences charged with reviewing 

ail previous research on criminal sentencing 
issues in order to set standards for the conduct 

of such rescarch. 

2. The district court felt bound by precedent to 

analvze the claim under the equal protection 

In my 

753 FEDERAL REPORTER, 2d SERIES 

death penalty and McCleskey does not have 
to prove intent to discriminate in order to 

show that the death penalty is being ap 

plied arbitrarily and capriciously. 

A. The Viability of an Eighth Amend. 
ment Challenge 

As the majority recognizes, the fact that 

a death penalty statute is facially valid 

does not foreclose an Eighth Amendment 

challenge based on the systemwide applica- 
tion of that statute. The district court 

most certainly erred on this issue. Apply- 
ing the death penalty in a racially discrimi- 
natory manner violates the Eighth Amend 

ment. Several members of the majority in 
Furman v. Georgia, 408 U.S. 238, 245-57, 
310, 364-65, 92 S.Ct. 2726, 2729-36, 2762, 
2790-91, 33 L.Ed.2d 346 (1972) (concurring 
opinions of Douglas, Stewart, Marshall, 
JJ.), relied in part on the disproportionate 

impact of the death penalty on racial minor- 
ities in concluding that the death penalty as 
then administered constituted arbitrary and 

capricious punishment. 

When decisionmakers look to the race of 

a victim, a factor completely unrelated to 

the proper concerns of the sentencing pro- 

cess enters into determining the sentence. 

Reliance on the race of the victim means 

that the sentence is founded in part on a 

morally and constitutionally repugnant 

judgment regarding the relative low value 

of the lives of black victims. Cf Zant v. 

Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 

L.Ed.2d 235 (1983) (listing race of defend- 

ant as a factor “constitutionally impermis- 

sible or totally irrelevant to the sentencing 

process”). There is no legitimate basis in 

reason for relving on race in the sentencing 

process. Because the use of race is both 

irrelevant to sentencing and impermissible, 

sentencing determined in part by race is 

arbitrary and capricious and therefore a 

clause, but expressed the opinion that it might 

best be understood as a due process claim. It 

does not appear that a different constitutional 

basis for the claim would have affected the 

district court's conclusions. 

 



  

McCLESKEY v. KEMP 909 
Cite as 753 F.2d 877 (198%) 

violation of the Eighth Amendment. See 
Furman v. Georgia, 408 U.S. 238, 256, 92 

S.Ct. 2726, 2735, 33 L.Ed.2d 346 (1972) 
(Douglas, J., concurring) (“the high service 

rendered by the ‘cruel and unusual’ punish- 
ment clause of the Eighth Amendment is to 
require judges to see to it that general 

laws are not applied sparsely, selectively, 
and spottily to unpopular groups”). 

B. The Eighth Amendment and Proof 
of Discriminatory Intent 

The central concerns of the Eighth 

Amendment deal more with decisionmaking 

processes and groups of cases than with 

individual! decisions or cases. In a phrase 
repeated throughout its later cases, the 
Supreme Court in Gregg v. Georgia, 428 
U.S. 133, 195 n. 46, 96 S.Ct. 2909, 2935 n. 
46, 49 L.Ed.2d 859°(1976) (plurality opinion), 
stated that a “pattern of arbitrary and 

. capricious sentencing” would violate the 
Eighth Amendment. In fact, the Court has 
consistently adopted a systemic perspective 
on the death penalty, looking to the opera- 
tion of a state's entire sentencing structure 

in determining whether it inflicted sen- 
tences in violation of the Eighth Amend- 
ment. See, e.g., Eddings v. Oklahoma, 455 
U.S. 104,112, 102 S.Ct. 869, 875, 71 L.Ed.2d 
1 (1982) (capital punishment must be im- 

posed “fairty, and with reasonable consist 
ency, or not at all”); Godfrey v. Georgia, 
446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 39% 
(1980) (“[I}f 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.”). 

Without this systemic perspective, re 

view of sentencing would be extremely lim- 

ited, for the very idea of arbitrary and 
capricious sentencing takes on its fullest 

meaning in a comparative context. A non- 

arbitrary sentencing structure must pro 

3. The Supreme Court in Pulley v. Harris, — 
US. —, 104 S.Ct. 871, 79 L.Ed.2d 2S (1583), 
emphasized the importance of factors other 
than appeilate proportionality review that 
would control jury discretion and assure that 
sentences would not fall into an arbitrary pat- 

The decision in Pulley decmphasizes the tern. 

vide some meaningful way of distinguish- 
ing between those who receive the death 
sentence and those who do not. Godfrey v. 
Georgia, 446 U.S. 420, 433, 100 S.Ct. 1739, 
1767, 64 L.Ed.2d 398 (1980); Furman v. 

Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 
2764, 33 L.Ed.2d 346 (1972) (White, J., con- 
curring). Appellate proportionality review 
is not needed in every case but consistency 

is still indispensable to a constitutional sen- 

tencing system.® The import of any single 
sentencing decision depends less on the in- 
tent of the decisionmaker than on the out- 

come in comparable cases. Effects evi- 

denice is well suited to this type of review. 

This emphasis on the outcomes produced 
by “the entire system springs from the 

State's special duty to insure fairness with 
regard to something as serious as a death 
sentence. See Zant v. Stephens, 462 U.S. 
862, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 

(1983); Lockett v. Ohio, 438 U.S. 386, 605, 

98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); 
Woodson v. North Carolina, 428 U.S. 280, 
305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 
(1976) (plurality opinion). Monitoring pat- 

terns of sentences offers an especially ef- 
fective way to detect breaches of that duty. 
Indeed, because the death penalty retains 
the need for discretion to make individual 
ized judgments while at the same time 
heightening the need for fairness and con- 
sistency, Eddings v. Oklahoma, supra, 455 
U.S. at 110-12, 102 S.Ct. at 874-795, pat- 
terns of decisions may often be the only 

acceptable basis of review. Discretion hin- 

ders inquiry into intent: if unfairness and 

inconsistency are to be detected even when 
they are not overwhelming or obvious, ef- 

fects evidence must be relied upon. 

Insistence on systemwide objective stan- 

dards to guide sentencing reliably prevents 

aberrant decisions without having to probe 

the intentions of juries or other decision- 

makers. Gregg v. Georgia, supra, 428 

importance of evidence of arbitrariness in indi- 
vidual cases and looks exclusively to “systemic” 
arbitrariness. The case further underscores this 
court's responsibility to be alert to claims, such 
as the one McCleskey makes, that allege more 
than disproportionality in a single sentence. 

 



  

910 

US. at 198, 96 S.Ct. at 2936; Woodson v. 

North Carolina, supra, 428 U.S. at 303, 96 

S.Ct. at 2990 (objective standards necessary 

to “make rationally reviewable the process 

for imposing the death penalty”). The 

need for the State to constrain the discre- 

tion of juries in the death penalty area is 

unusual by comparison to other areas of 

the law. It demonstrates the need to rely 

on systemic controls as a way to reconcile 

discretion and consistency; the same com- 

bined objectives argue for the use of ef- 

fects evidence rather than waiting for evi- 

.dence of improper motives in specific cases. 

Objective control and review of sentenc- 

ing structures is carried so far that a jury 

or other decisionmaker may be presumed 

to have intended a non-arbitrary result 

when the outcome is non-arbitrary by an 

objective standard; the law, in short, looks 

to the result rather than the actual mo- 

tives.! In Westbrook v. Zant, 704 F.2d 

1487, 1504 (11th Cir.1983), this Court held 

that, even though a judge might not prop- 

erly instruct a sentencing jury regarding 

the proper definition of aggravating cir- 

cumstances, the “uncontrolled discretion of 

an uninstructed jury” can be cured by re- 

view in the Georgia Supreme Court. The 

state court must find that the record shows 

4. Lockett v. Ohio, 438 U.S. 386, 98 S.CL. 2954, 57 

L.Ed.2d 572 (1978), and other cases demonstrate 

that the actual deliberations of the sentencer are 

relevant under the Eighth Amendment, for miti- 

gating factors must have their proper place in 

all deliberations. But the sufficiency of intent 

in proving an Eighth Amendment violation does 

not imply the necessity of intent for all such 

claims. 

5. The only Fifth or Eleventh Circuit cases touch- 

ing on the issue of discriminatory intent under 

the Eighth Amendment appear to be inconsist- 

ent with the Supreme Court's approach and 

therefore wrongly decided. The court in Smuth 

v. Balkcom, 660 F.2d 373, 384 (Sth Cir. Unit B 

1981), modified, 671 F.2d 858 (Sth Cir.1982), 

stated that Eighth Amendment challenges based 

on race require a showing of intent, but the 

court reached this conclusion because it wrong: 

ly believed that Spinkellink v. Wainwright, 578 

F.2d 582 (5th Cir.1978), compelled such a result. 

The Spinkeilink court never reached the ques- 

tion of intent, holding that Supreme Court 

precedent foreclosed all Eighth Amendment 

challenges except for extreme cases where the 

sentence is shockingly disproportionate to the 

crime. 578 F.2d at 606 & n. 28. See supra note 

753 FEDERAL REPORTER, 2d SERIES 

the presence of statutory aggravating fac. 

tors that a jury could have relied upon. If 

the factors are present in the record it does 

not matter that the jury may have misun- 

derstood the role of aggravating circum- 

stances. If the State can unintentionally 

succeed in preventing arbitrary and capri 

cious sentencing, it would seem that the 

State can also fail in its duty even though 

none of the relevant decisionmakers intend 

such a failure. 

In sum, the Supreme Court's systemic 

and objective perspective in the review and 

control of death sentencing indicates that a 

pattern of death sentences skewed by race 

alone will support a claim of arbitrary and 

capricious sentencing in violation of the 

Eighth Amendment. See Furman v. Geor- 

gia, 408 U.S. 238, 253, 92 S.Ct. 2726, 2733, 

33 L.Ed.2d 346 (1972) (Douglas, J., concur- 

ring) (“We cannot say that these defend- 

ants were sentenced to death because they 

were black. Yet our task is not restricted 

to an effort to divine what motives impeiled 

these death penalties.”). The majority's 

holding on this issue conflicts with every 

other constitutional limit on the death pen- 

alty. After today, in this Circuit arbitrar- 

ness based on race will be more difficult to 

3. The Smith court cites to a portion of the 

Spinkeilink opinion dealing with equal protec- 

tion arguments. 578 F.2d at 614 n. 40. Neither 

of the cases took note of the most pertinent 

Eighth Amendment precedents decided by the 

Supreme Court. 

Other Eleventh Circuit cases mention that ha- 

beas corpus petitioners must prove intent to 

discriminate racially against them personally in 

the application of the death sentence. But these 

cases all either treat the claim as though it arose 

under the Fourteenth Amendment alone or rely 

on Smith or one of its successors. See Sullivan 

v. Wainwright, 721 F.2d 316 (11th Cir.1983); 

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

1983). Of course, to the extent these cases at- 

tempt to foreclose Eighth Amendment chal- 

lenges of this sort or require proof of particular- 

ized intent to discriminate, they are inconsistent 

with the Supreme Court's interpretation of the 

Eighth Amendment. Cf Gates Collier, 3501 

F.2d 1291, 1300-0! (5th Cir.1973) {prohibition 

against cruel and unusual punishment “is not 

limited to specific acts directed at selected indi- 

viduals”). 

 



  

McCLESKEY v. KEMP 911 
Cite as 753 F.2d 877 (198%) 

eradicate than any other sort of arbitrari- 

ness in the sentencing system. 

II. PROVING DISCRIMINATORY EF- 

FECT AND INTENT WITH THE 

BALDUS STUDY 

The statistical study conducted by Dr. 

Baldus provides the best possible evidence 

of racially disparate impact. It began with 

a single unexplained fact: killers of white 

victims in Georgia over the last decade 

have received the death penalty eleven 

times more often than killers of black vie- 

tims.® It then employed several statistical 

techniques, including regression analysis, 

to isolate the amount of that disparity at- 

tributable to both racial and non-racial fac- 

tors. Each of the techniques yielded a 

statistically significant racial influence of 

at least six percent; in other words, they 

all showed that the pattern of sentencing 

could only be explained by assuming that 

the race of the victim made all defendants 

convicted of killing white victims at least 

six percent more likely to receive the death 

penalty. Other factors’ such as the num- 

ber of aggravating circumstances or the 

occupation of the victim could account for 

some of the eleven-to-one differential, but 

the race of the victim remained one. of the 

strongest influences. ; : 

Assuming that the study actually proves 

what it claims to prove, an assumption the 

majority claims to make, the evidence un- 

doubtedly shows a disparate impact. Re- 

gression analysis has the great advantage 

of showing that a perceived racial effect is 

an actual racial effect because it controls 

for the influence of non-racial factors. By 

screening’ out non-racial explanations for 

certain outcomes, regression analysis of- 

6. Among those who were eligible for the death 

penalty, eleven percent of the killers of white 

victims received the death penalty, while one 

percent of the killers of black victims received 

it. 

7. In one of the largest of these models, the one 

focused on by the district court and the majori- 
tv, the statisticians used 230 different indepen- 

dent variables (possible influences on the pat- 

tern of sentencing). including several different 
aggravating and many possible mitigating fac- 

tors. 

fers a type of effects evidence that ap- 

proaches evidence of intent, no matter 

what level of disparity is shown. For ex 

ample, the statistics in this case show that 

a certain number of death penalties were 

probably imposed because of race, without 

ever inquiring directly into the motives of 

jurors or prosecutors. : 

Regression analysis is becoming a com- 

mon method of proving discriminatory ef- 

fect in employment discrimination suits. 

In fact, the Baldus Study shows effects at 

least as dramatic and convincing as those 

in statistical studies offered in the past. 

Cf. Segar v. Smith, 738 F.2d 1249 (D.C.Cir. 

1984); Wade v. Mississippi Cooperative 

Extension Service, 328 F.2d 308 (5th Cir. 

1976). Nothing more should be necessary 

to prove that Georgia is applying its death 

penalty statute in a way that arbitrarily 

and capriciously relies on an illegitimate 

factor—race.® 

Even if proof of discriminatory intent 

were necessary to make out a constitution- 

al challenge, under any reasonable defini- 

tion of intent the Baldus Study provides 

sufficient proof. The majority ignores the 

fact that McCleskey has shown discrimina- 

tory intent at work in the sentencing sys- 

tem even though he has not pointed to any 

specific act or actor responsible for discrim- 

inating against him in particular? 

The law recognizes that even though in- 

tentional discrimination will be difficult to 

detect in some situations, its workings are 

still pernicious and real. Rose v. Mitchell, 

443 U.S. 345, 539, 99 S.Ct. 2993, 3001, 61 

L.Ed.2d 739 (1979). Under some circum- 

stances, therefore, proof of discriminatory 

effect will be an important first step in 

8. See part I, supra. Of course, proof of any 

significant racial effects is enough under the 

Eighth Amendment, for a requirement of prov- 

ing large or pervasive effects is tantamount to 

proof of intent. 

9. The same factors leading 'o the conclusion 

that an Eighth Amendment claim does not re- 

quire proof of intent militate even more strong: 

ly against using too restrictive an understanding 

of intent. 

 



  

912 

proving intent, Crawford v. Board of Edu- 

cation, 458 U.S. 527, 102 S.Ct. 3211, 73 

L.Ed.2d 948 (1982), and may be the best 

available proof of intent. Washington v. 

Davis, 426 U.S. 229, 241-42, 96 S.Ct. 2040, 

2048—49, 48 L.Ed.2d 597 (1976); United 

States v. Texas Educational Agency, 579 

F.2d 910, 913-14 & nn. 5-7 (5th Cir.1978), 

cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 

L.Ed.2d 879 (1979). 

For instance, proof of intentional discrim- 

ination in the selection of jurors has tradi- 

tionally depended on showing racial ef- 

fects. See Castaneda v. Partida, 430 U.S. 

482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); 

Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 

532, 24 L.Ed.2d 532 (1970); Gibson v. Zant, 

705 F.2d 1543 (11th Cir.1983). This is be- 

cause the discretion allowed to jury com- 

missioners, although legitimate, could easi- 

ly be used to mask comscious or uncon- 

scious racial discrimination. The Supreme 

Court has recognized that the presence of 

this sort of discretion calls for indirect 

methods of proof. Washington v. Dawns, 

426 U.S. 229, 241-42, 96 S.Ct. 2040, 2043 

49, 48 L.Ed.2d 397 (1976); Arlington 

Heights v. Metropolitan Housing Corp. 

429 U.S. 252, 266 n. 13, 97 S.Ct. 555, 564 n. 

13, 50 L.Ed.2d 450 (1977). A 

This Court has confronted the same prob- 

lem in an analogous setting. In Searcy ». 

Williams, 636 F.2d 1003, 1008-09 (5th Cir. 

1981), aff'd sub nom. Hightower v. Searcy, 

453 U.S. 984, 102 S.Ct. 1605, 71 L.Ed.2d 844 

(1982), the court overturned a facially valid 

procedure for selecting school board mem- 

bers because the selections fell into an 

overwhelming pattern of racial imbalance. 

The decision rested in part on the discretion 

10. The majority distinguishes the jury discrimi- 
nation cases on tenuous grounds, stating that 
the disparity between the number of minority 
persons on the jury venire and the number of 
such persons in the population is an “actual 
disparity,” while the racial influence in this case 
is not. If actual disparities are to be con- 
sidered, then the court should employ the actual 
(and overwhelming) eleven-ic-one differential 
between white victim cases and black victim 
cases. The percentage figures presented by the 
Baldus Study are reaily more reliable than “ac- 
tual” disparities because they control for possi- 
ble non-racial lactors. 

753 FEDERAL REPORTER, 2d SERIES 

inherent in the selection process: “The. 
challenged application of the statute often 

involves discretion or subjective criteria ut;. 

lized at a crucial point in the decision-mak. 
ing process.” 

The same concerns at work in the jury 
discrimination context operate with equal 

force in the death penalty context. The 

prosecutor has considerable discretion and 
the jury has bounded but irreducible discre- 

tion. Defendants cannot realistically hope 

to find direct evidence of discriminatory 
intent. This is precisely the situation envi- 
sioned in Arlington Heights, where the 
Court pointed out that “[sJometimes a clear 
pattern, unexplainable on grounds other 

than race, emerges from the effect of the 

state action even when the governing legis- 

lation appears neutral on its face.... The 

evidentiary inquiry is then relatively easy.” 

429 U.S. at 266, 97 S.Ct. at 564. 

As a result, evidence of discriminatory 
effects presented in the Baldus Study, like 

evidence of racial disparities in the compo- 

sition of jury pools!'® and in other con- 
texts,’ excludes every reasonable infer- 

ence other than discriminatory intent at 

work in the system. This Circuit has ac- 
knowledged on several occasions that evi- 
dence of this sort could support a constitu- 

tional challenge. Adams v. Wainwrigal, 
709 F.2d 1443, 1449 (11th Cir.1983); Smith 

v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 
1981), modified in part, 671 F.2d 8538, cert. 

denied, 459 U.S. 882, 103 S.Ct. 181, 74 

L.Ed.2d 148 (1982); Spinkellink, supra, at 

614. 

A petitioner need not exclude all infer- 

ences other than discriminatory intent in 

his or her particular case.’? Yet the major- 

11. United States v. Texas Educational Agency, 

$79 F.2d 910 (Sth Cir.1978), cert denied, 443 

U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979), 

involving a segregated school system, provides 

another example of effects evidence as applied 

to an entire decisionmaking system. 

12. The particularity requirement has appeared 

sporadicaily in this Court's decisions prior to 

this time, although it was not a part of the 

original observation about this sort of statistical 

evidence in Smuth v. Balkcom, supra. 

 



  

iv McCLESKEY v. KEMP 913 
Clte as 753 F.2d 877 (1985) 

ity improperly stresses this particularity 

requirement and interprets it so as to close 
a door left open by the Supreme Court.? 
It would be nearly impossible to prove 
through evidence of a system's usual ef- 
fects that intent must have been a factor in 
any one case; effects evidence, in this con- 

text, necessarily deals with many cases at 
once. Every jury discrimination charge 
would be stillborn if the defendant had to 
prove by direct evidence that the jury com- 
missioners intended to deprive him or her 
of the right to a jury composed of a fair 
cross-section of the community. Requiring 
proof of discrimination in a particular case 
is especially inappropriate with regard to 
an Eighth Amendment claim, for even un- 

der the majority's description of the proof 

necessary to sustain an Eighth Amendment 
challenge, race operating in a pervasive 

manner “in the system” will suffice. 

The majority, after sowing doubts of this 

sort, nevertheless concedes that despite the 

particularity requirement, evidence of the 

system's effects could be strong enough to 
demecnstrate intent and purpose. Its sub- 
sequent efforts to weaken the implications 

to be drawn from the Baldus Study are 

uniformly unsuccessful. 

For example, the majority takes comfort 

in the fact that the level of aggravation 
powerfully influences the sentencing deci 
sion in Georgia. Yet this fact alone does 
not reveal a “rational” system at work. 

The statistics not only show that the num- 

ber of aggravating factors is a significant 

influence; they also point to the race of the 

13. The dissenting opinion of Justice Powell in 
Stephens v. Kemp, — U.S. ——, 104 S.Ct. 362, 
78 L.E4.2d 370, 372 (1984), does not undermine 

the clear impont of cases such as the jury dis 
crimination cases. For one thing, a dissent 
from a summary order does not have the prece- 
dential weight of a fully considered opinion of 
the Court. For another, the Stephens dissent 
considered the Baldus Study as an equal protec- 
tion argument only and did not address what 
might be necessary to prove an Eighth Amend- 
ment violation. 

14. While | agree with Judge Anderson's observa- 
tion that “the proof of racial motivation re- 
quired in a death case ... would be less strict 
than that required in civil cases or in the crimi- 
nal justice system generally,” I find it incoasist- 

victim as a factor of considerable influence. 

Where racial discrimination contributes to 

an official decision, the decision is unconsti- 

tutional even though discrimination was 
not the primary motive. Personnel Ad- 
ministrator v. Feeney, 442 U.S. 256, 279, 

99 S.Ct 2282, 2296, 60 L.Ed.2d 870 (1979). 

Neither can the racial impact be ex- 
plained away by the need for discretion in 
the administration of the death penalty or 
by any “presumption that the statute is 

operating in a constitutional manner.” The 
discretion necessary to the administration 
of the death penalty does not include the 

~ discretion to consider race: the jury may 
consider any proper aggravating factors, 
but it may not consider the race of the 
victim as an aggravating factor. Zant v. 
Stephens, 462 U.S. 862, 103 S.Ct. 2733, 
2741, 77 L.Ed.2d 235 (1983). And a statute 
deserves a presumption of constitutionality 

only where there is real uncertainty as to 
whether race influences its application. 

Evidence such as the Baldus Study, show- 
ing that the pattern of sentences can only 
be explained by assuming a significant ra- 

cial influence,'® overcomes whatever pre- 

sumption exists. 

The majority's effort to discount the im- 

portance of the “liberation hypothesis” also 

fails. In support of his contention that 
juries were more inclined to rely on race 

when other factors did not militate toward 

one outcome or another, Dr. Baldus noted 

that a more pronounced racial influence 
appeared in cases of medium aggravation 

ent with his acceptance of the majority out- 
come. The “exacting” constitutional supervi- 
sion over the death penalty established by the 
Supreme Court compels the conclusion that dis- 
criminatory effects can support an Eighth 
Amendment chailenge. Furthermore, the ma- 
jority's evaluation of the evidence in this case is, 
if anything, more strict than in other contexts. 
See note 10, supra. 

15. The racial influence operates in the average 
case and is therefore probably at work in any 
single case. The majority misconstrues the na- 
ture of regression analysis when it says that the 
coefficient of the race-of-the-victim factor repre- 
sents the percentage of cases in which race 
could have been a factor. That coefficient rep- 
resents the influence of race across all the cases. 

 



  

-914 

(20 percent) than in all cases combined (6 
percent). The majority states that racial 
impact in a subset of cases cannot provide 

the basis for a systemwide challenge. 
However, there is absolutely no justifica- 

tion for such a claim. The fact that a 
system mishandles a sizeable subset of 

cases is persuasive evidence that the entire 
system operates improperly. Cf Connecti- 
cut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 

L.Ed.2d 130 (1984) (written test diserimi- 

nates against some employees); Lewis v. 

City of New Orleans, 415 U.S. 130, 94 S.Ct. 
70, 39 L.Ed.2d 214 (1974) (statute infring- 

ing on First Amendment interests in some 

cases). A system can be applied arbitrarily 
and capriciously even if it resolves the obvi- 
ous cases in a rational manner. Admitted- 
ly, the lack of a precise definition of medi- 
um aggravation cases could lead to either 
an overstatement or understatement of the 
racial influence. Accepting, however, that 
the racial factor is accentuated to some 
degree in the middle range of cases,’ the 
evidence of racial impact must be taken all 

the more seriously. 

Finally, the majority places undue re- 
liance on several recent Supreme Court 
cases. It argues that Ford v. Strickland, 

— U.S. —, 104 S.Ct. 3498, 82 L.Ed.2d 
911 (1984), Adams v. Wainwright, — U.S. 

——, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984), 
and Sullivan v. Wainwright, — US. 
——, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983), 
support its conclusion that the Baldus 

Study does not make a strong enough 
showing of effects to justify an inference 
of intent. But to the extent that these 

cases offer any guidanee at all regarding 

the legal standards applicable to these 
studies,!? it is clear that the Court con- 

sidered the validity of the studies rather 

16. The majority apparently ignores its commit- 
ment to accept the validity of the Baldus Study 
when it questions the definition of “medium 
aggravation cases” used by Dr. Baldus. 

17. The opinion in Ford mentioned this issue in a 
single sentence; the order in Adams was not 
accompanied by any written opinion at ail. 
None of the three treated this argument as a 
possible Eighth Amendment claim. Finally, the 
“death odds multiplier” is not the most pro- 

753 FEDERAL REPORTER, 2d SERIES 

than their sufficiency. In Sullivan, the 

"Supreme Court refused to stay the execy. 
tion simply because it agreed with the dec; 
sion of this Court, a decision based on the 
validity of the study alone.’ Sullivan 
Wainwright, 721 F.2d 316 (11th Cir.1983) 
(citing prior cases rejecting statistical evi 
dence because it did not account for non-rg- 

cial explanations of the effects). As the 
majority mentions, the methodology of the 
Baldus Study easily surpasses that of the 
earlier studies irivolved in those cases. 

Thus, the Baldus Study offers a convine- 
ing explanation of the disproportionate ef. 
fects of Georgia's death penalty system. 

It shows a clear pattern of sentencing that 
can only be explained in terms of race, and 
it does so in a context where direct evi 

dence of intent is practically impossible to 
obtain. [It strains the imagination to be- 

lieve that the significant influence on sen- 

tencing left unexplained by 230 alternative 
factors is random rather than racial, espe 
cially in a state with an established history 
of racial discrimination. Turner ov. 
Fouche, supra; Chapman v. King, 154 

F.2d 460 (5th Cir.), cert. denied, 327 U.S. 

800, 66 S.Ct. 905, 90 L.Ed. 1025 (1946). 
The petitioner has certainly presented evi- 

dence of intentional racial discrimination at 
work in the Georgia system. Georgia has 
within the meaning of the Eighth Amend- 
ment applied its statute arbitrarily and ca- 

priciously. 

11. THE VALIDITY OF THE BALDUS 
STUDY 

The majority does not purport to reach 

the issue of whether the Baldus Study reli 

ably proves what it claims to prove. How- 

ever, the majority does state that the dis- 

trict court's findings regarding the validity 

nounced statistic in the Baldus Study: a ruling 
of insufficiency based on that one indicator 
would not be controlling here. 

18. Indeed, the Court indicated that it would 

have reached a different conclusion if the dis- 

trict court and this court had not been given the 
opportunity to analyze the statistics adequately. 
wr U.S, mew; 104 S.Ct. 31 431.0. 3, 78 LEA 

at: 213m 3 

 



  

McCLESKEY v. KEMP 915 

Cite as 753 F2d 877 (1985) 

of the study might foreclose habeas relief 

on this issue. Moreover, the majority opin- 

ion in several instances questions the validi- 

ty of the study while claiming to be inter- 

ested in its sufficiency alone. I therefore 

will summarize some of the reasons that 

the district court was clearly erroneous in 

finding the Baldus Study invalid. 

The district court fell victim to a miscon- 

ception that distorted its factual findings. 

The Court pointed out a goodly number of 

imperfections in the study but rarely went 

ahead to determine the significance of 

those imperfections. A court may not sim- 

ply point to flaws in a statistical analysis 

and conclude that it is completely unrelia- 

ble or fails to prove what it was intended to 

prove. Rather, the Court must explain 

why the imperfection makes the study less 

capable of proving the proposition that it 

was meant to support. Eastland v. Ten- 

nessee Valley Authority, 704 F.2d 613 

(11th Cir.1983), cert. denied, — U.S. —, 

104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). 

Several of the imperfections noted by the 

district court were not legally significant 

because of their minimal effect. Many of 

the errors in the data base match this de- 

scription. For instance, the “mismatches” 

in data entered once for cases in the Proce- 

dural Reform Study and again for the same 

cases in the Charging and Sentencing 

Study were scientifically negligible. The 

district court relied on the data that 

changed from one study to the next in 

concluding that the coders were allowed 

19. The remaining errors affected little more 

than one percent of the data in any of the 

models. Data errors of less than 10 or 12% 

generally do not threaten the validity of a mod- 

el. 

30. Dr. Baldus used an “imputation method,” 

whereby the race of the victim was assumed to 

be the same as the race of the defendant. Given 

the predominance of murders where the victim 

and defendant were of the same race, this meth- 

od was a reasonable way of estimating the num- 

ber of victims of each race. It further reduced 

the significance of this missing data. 

21. The district court, in assessing the weight 10 

be accorded this omission, assumed that Dr. 

Baldus was completely unsuccessful in predict 

too much discretion. But most of the al 

leged “mismatches” resulted from inten- 

_ tional improvements in the coding tech- 

niques and the remaining errors 1? were not 

large enough to affect the results. 

The data missing in some cases was also 

a matter of concern for the district court. 

The small effects of the missing data leave 

much of that concern unfounded. The race 

of the victim was uncertain in 6% of the 

cases at most ®;, penalty trial information 

was unavailable in the same percentage of 

cases?! . The relatively small amount of 

missing data, combined with the large num- 

ber of variables used in several of the 

models, should have led the court to rely on 

the study. Statistical analyses have never 

been held to a standard of perfection or 

near perfection in order for courts to treat 

them as competent evidence. Trout v. 

Lehman, 702 F.2d 1094, 1101-02 (D.C.Cir. 

1983). Minor problems are inevitable in a 

study of this scope and complexity: the 

stringent standards used by the district 

court would spell the loss of most statisti- 

cal evidence. : 

Other imperfections in the study were 

not significant because there was no reason 

to believe that the problem would work 

systematically to expand the size of the 

race-of-the-victim factor rather than to con- 

tract it or leave it unchanged. The multi- 

collinearity problem is a problem of notable 

proportions that nonetheless did not in- 

crease the size of the race-of-the-victim fac- 

tor. Ideally the independent variables in 

ing how many of the cases led to penalty trials. 

Since the prediction was based on discernible 

rends in the rest of the cases, the district court 

was clearly erroneous to give no weight to the 

prediction. 

22. The treatment of the coding conventions pro- 

vides another example. The district court criti- 

cized Dr. Baldus for treating “U” codes (indicat- 

ing uncertainty as to whether a factor was 

present in a case) as being beyond the knowl- 

edge of the jury and prosecutor (“absent”) rath- 

er than assuming that the decisionmakers knew 

about the factor (“present”). Baldus contended 

that, if the extensive records available on each 

case did not disclose the presence of a factor, 

chances were good that the decisionmakers did 

not know of its presence, cither. Dr. Berk testi- 

 



  

916 

a regression analysis should not be related 

to one another. If one independent varia- 

ble merely serves as a proxy for another, 

the model suffers from “multicollinearity.” 

That condition could either reduce the sta- 

tistical significance of the variables or dis- 

tort their relationships to one another. Of 

course, to the extent that multicollinearity 

reduces statistical significance it suggests 

that the racial influence would be even 

more certain if the multicollinearity had not 

artificially depressed the variable’s statisti 

cal significance. As for the distortions in 

the relationships between the variables, ex- 

perts for the petitioner explained that mul 

ticollinearity tends to dampen the racial 

effect rather than enhance it.” 

The district court did not fail in every 

instance to analyze the significance of the 

problems. Yet when it did reach this issue, 

the court at times appeared to misunder- 

stand the nature of this study or of regres- 

sion analysis generally. In several related 

criticisms, it found that any of the models 

accounting for less than 230 independent 

variables were completely worthless (580 

F.Supp. at 361), that the most complete 

models were unable to capture every 

nuance of every case (580 F.Supp. at 356, 

71), and that the models were not suffi- 

ciently predictive to be relied upon in light 

of their low R 2 value (580 F.Supp. at 361).% 

The majority implicitly questions the validi- 

ty of the Baldus Study on several occasions 

when it adopts the first two of these criti- 

fied that the National Academy of Sciences had 

considered this same issue and had recom- 

mended the course taken by Dr. Baldus. Dr. 

Katz, the expert witness for the state, suggested 

removing the cases with the U codes from the 

study altogether. The district court's sugges- 

tion, then, that the U codes be treated as 

present, appears to be groundless and clearly 

erroneous. 

Baldus later demonstrated that the U codes 

did not affect the race-of-the-victim factor by 

recoding all the items coded with a U and treat- 

ing them as present. Each of the tests showed 

no significant reduction in the racial variable. 

The district court rejected this demonstration 

because il was not carried out using the largest 

available model. 

23. The district count rejected this expert testimo- 

ay, not because of any rebuttal testimony, but 

because it allegedly conflicted with the petition- 

753 FEDERAL REPORTER, 2d SERIES 

cisms.? A proper understanding of statis. 

tical methods shows, however, that these 

are not serious shortcomings in the Baldus- 

Study. 

The district court mistrusted smaller 

models because it placed too much weight 

on one of the several complementary goals 

of statistical analysis. Dr. Baldus testified 

that in his opinion the 39-variable model 

was the best among the many models he 

produced. The district court assumed 

somewhat mechanistically that the more 

independent variables encompassed by a 

model, the better able it was to estimate 

the proper influence of non-racial factors. 

But in statistical models, bigger is not al- 

ways better. After a certain point, addi- 

tional independent variables become correl- 

ated with variables already being con- 

sidered and distort or suppress their influ- 

ence. The most accurate models strike an 

appropriate balance between the risk of 

omitting a significant factor and the risk of 

multicollinearity. Hence, the district court 

erred in rejecting all but the largest mod- 

els. 

The other two criticisms mentioned earli- 

er spring from a single source—the misin- 

terpretation of the R? measurement.’ 

The failure of the models to capture every 

nuance of every case was an inevitable but 

harmless failure. Regression analysis ac- 

counts for this limitation with an R ? meas 

urement. As a result, it does not matter 

er's other theory that muiticollinearity affects 

statistical significance. 580 FSupp. at 364. 

The two theories are not inconsistent, for nei 

ther Dr. Baldus nor Dr. Woodworth denied that 

multicollinearity might have multiple effects. 

The two theories each anaiyze one possible ef- 

fect. Therefore, the district court rejected this 

testimony on improper grounds. 

24. The RZ measurement represents the influ- 

ence of random factors unique to each case that 

could not be captured by addition of another 

independent variable. As RZ approaches a val- 

ue of 1.0, one can be more sure that the inde 

pendent variables already identified are accu- 

rate and that no significant influences are mas 

guerading as random influences. 

28. See e.g., pp. 896, 899. 

26. See footnote 24. 

 



  

McCLESKEY v. KEMP 917 
Cite as 753 F.2d 877 (1985) 

that a study fails to consider every nuance 

of every case because random factors (fac- 

tors that influence the outcome in a sporad- 

ic and unsystematic way) do not impugn 

the reliability of the systemwide factors 

already identified, including race of the vic- 

tim. Failure to consider extra factors be- 

comes a problem only where they operate 

throughout the system, that is, where R 2is 

inappropriately low. 

The district court did find that the R ? of 

the 230-variable study, which was near- 

ly .48, was too low.” But an R? of that 

size is not inappropriately. low in every 

~ context.® The R? measures random fac- 

tors unique to each case: in areas where 

such factors are especially likely to occur, 

one would expect a low RZ. As the ex- 

perts, the district court and the majority 

have pointed out, no two death penaity 

cases can be said to be exactly alike, and it 

is especially unlikely for a statistical study 

to capture every influence on a sentence. 

In light of the random factors at work in 

the death penalty context, the district court 

erred in finding the R? of all the Baldus 
Study models too low.? 

Errors of this sort appear elsewhere in 

the district court opinion and leave me with 

the definite and firm conviction that the 

basis for the district court's ruling on the 

invalidity of the study was clearly errone- 

ous. United States v. Gypsum Co., 333 

U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 

746 (1948). This statistical analysis, while 

imperfect, is sufficiently complete and reli- 

able to serve as competent evidence to 

guide the court. Accordingly, 1 would re- 
verse the judgment of the district court 

27. It based that finding on the fact that a model 

with an R2 less than .5 “does not predict the 
outcome in half of the cases.” This is an inac- 
curate statement, for an R 2 actually represents 
the percentage of the original 11-to-1 differen- 
tial explained by all the independent variables 

combined. A model with an R 2 of less than .5 
would not necessarily fail to predict the out 
come in half the cases because the mode! im. 
proves upon pure chance as a way of correctly 
predicting an outcome. For dichotomous out- 
comes (i.e. the death penalty is imposed or it is 
not), random predictions could succeed half the 

time. 

with regard to the validity of the Baldus 

Study. I would also reverse that court's 
determination that an Eighth Amendment 

claim is not available to the petitioner. He 

is entitled to relief on this claim. 

IV. OTHER ISSUES 

I ‘concur in the opinion of the court with 

regard to the death-oriented jury claim and 

in the result reached by the court on the 

ineffective assistance of counsel claim. I 

must dissent, however, on the two remain- 

ing issues in the case. I disagree with the 

holding on the Giglio issue, on the basis of 
the findings and conclusions of the district 
court and the dissenting opinion of Chief 

Judge Godbold. As for the Sandstrom 

claim, I would hold that the instruction was 

erroneous and that the error was not harm- 

less. 

It is by no means certain that an error of 

this sort can be harmless. See Comnect:- 
cut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 

74 L.Ed.2d 823 (1983). Even if an error 

could be harmless, the fact that McCleskey 

relied on an alibi defense does not mean 

that intent was “not at issue” in the case. 

Any element of a crime can be at issue 

whether or not the defendant presents evi- 

dence that disputes the prosecution’s case 

on that point. The jury could find that the 

prosecution had failed to dispel all reason- 

able doubts with regard to intent even 

though the defendant did not specifically 
make such an argument. Intent is at issue 

wherever there is evidence to support a 

reasonable doubt in the mind of a reason- 

able juror as to the existence of criminal 

intent. See Lamb v. Jernigan, 683 F.2d 

28. Wilkins v. University of Houston, 634 F.2d 
388, 405 (5th Cir.1981), is not lo the contrary. 
That court stated only that it could not know 
whether an R 2 of .32 or .53 percent would be 
inappropriately low in that context since the 
parties had not made any argument on the is- 

sue. 

29. Furthermore, an expert for the petitioner of- 
fered the unchallenged opinion that the R? 
measurements in studies of dichotomous out- 
comes are understated by as much as 30%, 
placing the R 2 values of the Baldus Study mod- 
els somewhere between .7 and 9. 

 



  

918 

1332, 1342-43 (11th Cir.1982) (“no reason- 

able juror could have determined ... that 

appellant acted out of provocation or self- 

defense,” therefore error was harmless). 

The majority states that the raising of an 

alibi defense does not automatically render 

a Sandstrom violation harmless. It con- 

cludes, however, that the raising of a non- 

participation defense coupled with “over 

whelming evidence of an intentional kill- 

ing” will lead to a finding of harmless 

error. The majority's position is indistin- 

guishable from a finding of harmless error 

based solely on overwhelming evidence.® 

Since a defendant normally may not relieve 

the jury of its responsibility to make factu- 

al findings regarding every element of an 

offense, the only way for intent to be “not 

at issue” in a murder trial is if the evidence 

presented by either side provides no possi- 

ble issue of fact with regard to intent. 

Thus, McCleskey’s chosen defense in this 

case should not obscure the sole basis for 

the disagreement between the majority and 

myself: the reasonable inferences that 

could be drawn from the circumstances of 

"the killing. I cannot agree with the majort 

ty that no juror, based on any reasonable 

interpretation of the facts, could have had 

a reasonable doubt regarding intent. 

Several factors in this case bear on the 

issue of intent. The shooting did not occur 

at point-blank range. Furthermore, the of- 

ficer was moving at the time of the shoot 

ing. On the basis of these facts and other 

circumstances of the shooting, a juror 

could have had a reasonable doubt as to 

whether the person firing the weapon in- 

tended to kill. While the majority dismiss- 

es this possibility as “mere speculation,” 

the law requires an appellate court {0 spec- 

ulate about what a reasonable juror could 

30. Indeed, the entire harmless error analysis 

employed by the court may be based on a false 

dichotomy between “overwhelming evidence” 

and elements “not at issue.” Wherever intent is 

an element of a crime, it can only be removed 

as an issue by overwhelming evidence. The 

observation by the plurality in Connecticut v. 

Johnson, supra, that a defendant may in some 

cases “admit” an issue, should only apply where 

the evidence allows only one conclusion. To 

allow an admission to take place in the face of 

[] 

753 FEDERAL REPORTER, 2d SERIES 

have concluded. Sandstrom v. Montana, 

442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 

(1979); United States v. Bell, 678 F.2d 547, 

549 (5th Cir. Unit B 1982) (en banc), aff'd 

on other grounds, 462 U.S. 356, 103 S.Ct. 

2398, 76 L.Ed.2d 638 (1983). Therefore, the 

judgment of the district court should be 

reversed on this ground, as well. 

HATCHETT, Circuit Judge, dissenting in 

part, and concurring in part: 

In this case, the Georgia system of im- 

posing the death penalty is shown to be 

unconstitutional. Although the Georgia 

death penalty statutory scheme was held 

constitutional “on +its face” in Gregg ov. 

Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 

L.Ed.2d 859 (1976), application of the 

scheme produces death sentences explaina- 

ble only on the basis of the race of the 

defendant and the race of the victim. 

I write to state clearly and simply, with- 

out the jargon of the statisticians, the re- 

sults produced by the application of the 

Georgia statutory death penalty scheme, as 

shown by the Baldus Study. 

The Baldus Study is valid. The study 

was designed to answer the questions 

when, if ever, and how much, if at all, race 

is a factor in the decision to impose the 

death penalty in Georgia. The study gives 

the answers: In Georgia, when the defend- 

ant is black and the victim of murder is 

white, a 6 percent greater chance exists 

that the defendant will receive the death 

penalty solely because the victim is white. 

This 6 percent disparity is present through- 

out the total range of death-sentenced 

black defendants in Georgia. While the 6 

percent is troublesome, it is the disparity in 

the mid-range on which I focus. When 

evidence to the contrary improperly infringes 

on the jury's duty to consider all relevant evi- 

dence. 

1. Although | concur with the majority opinion 

on the ineffective assistance of counsel and 

death-oriented jury issues, | write separately to 

express my thoughts on the Baldus Study. 

| also join Chief Judge Godbold's dissent, as to 

the Giglio issue, and Judge Johnson's dissent. 

 



  

McCLESKEY v. KEMP 919 
Cite as 753 F2d 877 (1985) 

cases are considered which fall in the mid- 

range, between less serious and very seri 

ous aggravating circumstances, where the 

victim is white, the black defendant has a 

20 percent greater chance of receiving the 
death penalty because the victim is white, 

rather than black. This is intolerable; it is 

in this middle range of cases that the deci- 

sion on the proper sentence is most diffi- 

cult and imposition of the death penalty 

most questionable. 

The disparity shown by the study arises 

from a variety of statistical analyses made 

by Dr. Baldus and his colleagues. First, 

Baldus tried to determine the effect of race 

of the victim in 594 cases (PRS study) 

comprising all persons convicted of murder 
during a particular period. To obtain bet- 
ter results, consistent with techniques ap- 
proved by the National Academy of Sci- 
ences, Baldus identified 2,500 cases in 

which persons were indicted for murder 
during a particular period and studied 
closely 1,066 of those cases. He identified 

500 factors, bits of information, about the 

defendant, the crime, and other circum- 

stances surrounding each case which he 

thought had some impact on a death sen- 
tence determination. Additionally, he fo- 

cused on 230 of these factors which he 
thought most reflected the relevant consid- 

erations in a death penalty decision. 

Through this 230-factor model, the study 
proved that black defendants indicted and 
convicted for murder of a white victim be- 

gin the penalty stage of trial with a signifi- 

cantly greater probability of receiving the 

death penalty, solely because the victim is 

white. 

Baldus also observed thirty-nine factors, 

including information on aggravating cir 

cumstances, which match the circumstanc- 

es in this case. This focused study of the 

aggravating circumstances in the mid- 

range of severity indicated that “white vic- 

tim crimes were shown to be 20 percent 

more likely to result in a death penalty 

sentence than equally aggravated black vic- 

tim crimes.” Majority at 396. 

2. Nothing in the majority opinion regarding the 

validity, impact, or constitutional significance 

We must not lose sight of the fact that 

the 39-factor model considers information 

relevant to the impact of the decisions be- 

ing made by law enforcement officers, 

prosecutors, judges, and juries in the deci- 

sion to impose the death penalty. The ma- 

jority suggests that if such a disparity re- 

sulted from an identifiable actor or agency 

in the prosecution and sentencing process, 

the present 20 percent racial disparity 

could be great enough to declare the Geor- 

gia system unconstitutional under the 

eighth amendment. Because this disparity 

is not considered great enough to satisfy 

the majority, or because no identification of 

an actor or agency can be made with preci- 

sion, the majority holds that the statutory 

scheme is approved by the Constitution. 

Identified or unidentified, the result of the 

unconstitutional ingredient of race, at a 

significant 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. 

The 20 percent greater chance in the 

mid-range cases (because the defendant is 

black and the victim is white), produces a 

disparity that is too high. The study dem- 

onstrates that the 20 percent disparity, in 

the real world, means that one-third of the 

black defendants (with white victims) in the 

mid-range cases will be affected by the 

race factor in receiving the death penalty. 

Race should not be allowed to take a signif- 

icant role in the decision to impose the 

death penalty. 

The Supreme Court has reminded us on 

more than one occasion that “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. Georgqa, 

446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 

L.Ed.2d 398 (1980). A statute that inten- 

tionally or unintentionally allows for such 

racial effects is unconstitutional under the 

eighth amendment. Because the majority 

holds otherwise, 1 dissent.? 

of studies on discrimination in application of 
the Florida death penalty scheme should be 

 



  

920 

CLARK, Circuit Judge, dissenting in part 
and concurring in part *: 

We are challenged to determine how 

much racial discrimination, if any, is tolera- 
ble in the imposition of the death penalty. 
Although I also join in Judge Johnson's 
dissent, this dissent is directed to the ma- 

jority’s erroneous conclusion that the ev: 

dence in this case does not establish a 
prima facie Fourteenth Amendment viola- 
tion. 

The Study 

The Baldus study, which covers the pen- 
od 1974 to 1979, is a detailed study of over 

2,400 homicide cases. From these homi- 
cides, 128 persons received the death penal 
ty. Two types of racial disparity are estab- 
lished—one based on the race of the victim 

and one based on the race of the defendant. 

If the victim is white, a defendant is more 

likely to receive the death penalty. If the 
defendant is black, he is more likely to 
receive the death penalty. One can only 

conclude that in the operation of this sys- 

753 FEDERAL REPORTER, 2d SERIES 

tem the life of a white is dearer, the life of 

a black cheaper. 

Before looking at a few of the figures, a 
perspective is necessary. Race is a factor 

in the system only where there is room for 
discretion, that is, where the decision mak. 

er has a viable choice. In the large number 

of cases, race has no effect. These are 

cases where the facts are so mitigated the 
death penalty is not even considered as 3 
possible punishment. At the other end of 
the spectrum are the tremendously aggra- 

vated murder cases where the defendant 

will very probably receive the death penal 
ty, regardless of his race or the race of the 
victim. In between is the mid-range of 
cases where there is an approximately 20% 

racial disparity. 

The Baldus study was designed to deter- 
mine whether like situated cases are treat- 
ed similarly. As a starting point, an unan- 
alyzed arithmetic comparison of all of the 
cases reflected the following: 

Death Sentencing Rates by Defendant/ 

Victim Racial Combination 
  

  

  

A B C D. 

Black Defendant/ White Defendant/ Black Defendant/ White Defendant/ 

White Vietim White Vietim Black Vietim Black Vietim 

22 08 .01 .03 

(50/228) (58/745) (18/1438) (2/64) 

y 5) 013 

(108/973) (20/1502) 

These figures show a gross disparate racial 

impact—that where the victim was white 

there were 11% death sentences, compared 
to only 1.3 percent death sentences when 

construed to imply that the United States Su- 
preme Court has squarely passed on the Florida 
studies. Neither the Supreme Court nor the 
Eleventh Circuit has passed on the Florida stud- 
ies, on a fully developed record (as in this case), 
under fourteenth and eighth amendment chal- 
lenges. 

* Although I concur with the majority opinion on 
the ineffective assistance of counsel! and death 

the victim was black. Similarly, only 8% of 

white defendants compared to 22% of black 
defendants received the death penalty 

when the victim was white. The Supreme 

oriented jury issues, | write separately to ex- 
press my thoughts on the Baidus Study. | also 
join Chief Judge Godbold's dissent and Judge 
Johnson's dissent. 

1. DB Exhibit 63. 

 



  

McCLESKEY v. KEMP 921 
Cite as 753 F.2d 877 (1985) 

Court has found similar gross disparities to 
be sufficient proof of discrimination to sup- 
port a Fourteenth Amendment violation.? 

The Baldus study undertook to deter- 
mine if this racial sentencing disparity was 

caused by considerations of race or because 
of other factors or both. In order to find 
out, it was necessary to analyze and com- 

pare each of the potential death penalty 
cases and ascertain what relevant factors 
were available for consideration by the de- 
cision makers.? There were many factors 
such as prior capital record, contemporane- 
ous offense, motive, killing to avoid arrest 

or for hire, as well as race. The study 
showed that race had as much or more 
impact than any other single factor. See 
Exhibits DB 76-78, T-776-87. Stated an- 
other way, race influences the verdict just 

2. See discussion below at Page 9. ’ 

3. An individualized method of sentencing makes 
it possible to differentiate each particular case 
“in an objective, evenhanded, and substantially 
rational way from the many Georgia murder 

as much as any one of the aggravating 

circumstances listed in Georgia's death 

penalty statute.! Therefore, in the applica- 
tion of the statute in Georgia, race of the 

defendant and of the victim, when it is 
black/white, functions as if it were an ag- 
gravating circumstance in a discernible 
number of cases. See Zant v. Stephens, 
462 US. 862, 103 S.Ct. 2733, 2147, M7 
L.Ed.2d 235 (1983) (race as an aggravating 

circumstance would be constitutionally im- 
permissible). 

Another part of the study compared the 
disparities in death penalty sentencing ac- 
cording to race of the defendant and race 
of the victim and reflected the differences 
in the sentencing depending upon the pre- 
dicted chance of death, ie, whether the 

type of case was or was not one where the 
death penalty would be given. 

cases in which the death penalty may not be 

imposed.” Zant v. Stephens, 462 U.S. 862, 103 
S.Ct. 2733, 77 L.Ed.2d 238, 251. 

4. 0.C.G.A. § 17-10-30. 

 



  

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-McCLESKEY v. KEMP 923 
Cite as 733 F2d 877 (1985) 

of black defendants to white defendants 
when the victim is white and reflect that in 
Steps 1 and 2 no death penalty was given in 
those 41 cases. In Step 8, 45 death penal 

ties were given in 50 cases, only two blacks 
and three whites escaping the death penal- 
ty—this group obviously representing the 
most aggravated cases. By comparing 
Steps 3 through 7, one can see that in each 
group black defendants received death pen- 
alties disproportionately to white defend- 
ants by differences of .27, .19, .15, .22, 

and .25. This indicates that unless the 
murder is so vile as to almost certainly 
evoke the death penalty (Step 8), blacks are 
approximately 20% more likely to get the 
death penaity. 

The right side of the chart reflects how 
unlikely it is that any defendant, but more 
particularly white defendants, will receive 

the death penalty when the victim is black. 

Statistics as Proof 

The jury selection cases have utilized dif- 

ferent methods of statistical analysis in 
determining whether a disparity is suffi 
cient to establish a prima facie case of 
purposeful diserimination.! Early jury se 
lection cases, such as Swain v. Alabama, 
used very simple equations which primarily 
analyzed the difference of minorities eligi 
ble for jury duty from the actual number 

6. In Villafane v. Manson, 504 F.Supp. 78 
(D.Conn.1980Q), the court noted that four forms 
of analysis have been used: (1) the absolute 
difference test used in Swain v. Alabama, 380 
U.S. 202, 85 S.CL. 824, 13 L.Ed.2d 759 (1965); (2) 
the ratio approach; (3) a test that moves away 
from the examination of percentages and focus- 
es on the differences caused by underrepresen- 
tation in each jury; and (4) the statistical deci- 
sion theory which was fully embraced in Cas- 
taneda v. Partida, 430 U.S. at 496 un. 17, 97 S.CL. 
at 1281 n. 17. See also Finkelstein, The Applica- 
tion of Statistical Decision Theory to the Jury 
Discrimination Cases, 80 Harv.L.Rev. 338 
(1966). 

7. See Swain v. Alabama, 380 U.S. 202, 85 S.CL. 
824, 13 L.Ed.2d 739 (1963); Villafane v. Man- 
son, 504 F.Supp. at 83. 

8. See Finkelstein, The Application of Statistical 
Decision Theory to the Jury Discrimination 
Cases, 30 Harv.L.Rev. 338, 363 (1966) (“The 
Court did not reach thesc problems in Swain 

of minorities who served on the jury to 

determine if a disparity amounted to a sub- 

stantial underrepresentation of minority 
jurors.” Because this simple method did 
not consider many variables in its equation, 
it was not as accurate as the complex sta- 
tistical equations widely used today.’ 

The mathematical disparities that have 
been accepted by the Court as adequate to 
establish a prima facie case of purposeful 
discrimination range approximately from 
14% to 40%.) “Whether or not greater 
disparities constitute prima facie evidence 
of discrimination depends upon the facts of 

each case.” 1 

Statistical disparities in jury selection 
cases are not sufficiently comparable to 
provide a complete analogy. There are no 
guidelines in decided cases so in this case 
we have to rely on reason. We start with a 

sentencing procedure that has been ap 
proved by the Supreme Court.!' The object 
of this system, as well as any constitution- 
ally permissible capital sentencing system, 

is to provide individualized treatment of 

those eligible for the death penalty to in- 
sure that non-relevant factors, i.e. factors 
that do not relate to this particular individ- 
ual or the crime committed, play no part in 

deciding who does and who does not re 
ceive the death penalty.'? The facts dis- 

because of its inability to assess the significance 
of statistical data without mathematical tools.”). 

9. Castaneda v. Partida, 430 U.S. at 495-96, 97 
S.Ct. at 1280-82 (disparity of 40%); Turmer v. 
Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 
367 (1970) (disparity of 23%); Whitus v. Geor- 
gia. 385 U.S. 345, 87 S.Ct. 643, 17 L.Ed.2d 599 
(1967) (disparity of 18%); Sims v. Georgia, 389 

U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) 
(disparity of 19.7%); Jones v. Georgia, 389 U.S. 
24, 88 S.Cl. 4, 19 L.Ed.2d 25 (1967) (disparity of 
14.7%). These figures result from the computa- 
tion used in Swain. 

10. United States ex rel Barksdale v. Blackburn, 

63% F.2d 1115, 1122 (5th Cir.1981) (en banc). 

11. Gregg v. Georgia, 428 US. 153, 96 S.CL. 2909, 

49 L.Ed.2d 859 (1976). 

12. The sentencing body's decision must be fo 
cused on the “particularized nature of the crime 
and the panicularized characteristics of the in- 

 



  

924 

closed by the Baldus study, some of which 

have been previously discussed, demon 

strate that there is sufficient disparate 

treatment of blacks to establish a prima 

facie case of discrimination. 

This discrimination, when coupled with 

the historical facts, demonstrate a prima 

facie Fourteenth Amendment violation of 

the Equal Protection Clause. It is that 

discrimination against which the Equal Pro- 

tection Clause stands to protect. The ma- 

jority, however, fails to give full reach to 

our Constitution. . While one has to ac- 

knowledge the existence of prejudice in our 

society, one cannot and does not accept its 

application in certain contexts. This is no- 

where more true than in the administration 

of criminal justice in capital cases. 

The Fourteenth Amendment and 

Equal Protection 

“A showing of intent has long been re- 

quired in all types of equal protection 

cases charging racial discrimination.” 3 

The Court has required proof of intent 

before it will strictly scrutinize the actions 

of a legislature or any official entity." In 

this respect, the intent rule is a tool of 

self-restraint that serves the purpose of 

limiting judicial review and policymaking.'® 

The intent test is not a monolithic struc- 
ture. As with all legal tests, its focus will 

dividual defendant.” 428 U.S. at 206, 96 S.Ct. at 

2940. See also Lockett v. Ohio, 438 U.S. 586, 98 

S.Ct. 2954, 57 L.Ed.2d 973 (1978) (“the need for 

treating each defendant in a capital case with 
degree of respect due the uniqueness of the 
individual is far more important than in non- 
capital cases.” 438 U.S. at 605, 98 S.Ct. at 2965); 
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 
869, 71 L.Ed.2d 1 does focus on a characteristic 
of the particular defendant, albeit an impermis- 
sible one. See infra. p. 3. 

13. Rogers v. Lodge, 438 U.S. 613, 102 S.Ct. 3272, 
3276, 73 L.Ed.2d 1012 (1982). 

14. /d at n. 5 (“Purposeful racial discrimination 

invokes the strictest scrutiny of adverse differ- 
ential treatment. Absent such purpose, differ- 
ential impact is subject only to the test of ration- 
ality.™); see also Sellers, The Impact of Intent on 
Equal Protection Jurisprudence, 84 Dick.L.Rev. 

363, 377 (1979) (“the rule of intent profoundly 
affects the Supreme Court's posture toward 
equal protection claims.”). 

753 FEDERAL REPORTER, 2d SERIES 

vary with the legal context in which it is 

applied. Because of the variety of situa- 

tions in which discrimination can occur, the 

method of proving intent is the critical fo- 
cus. The majority, by failing to recognize 

this, misconceives the meaning of intent in 

the context of equal protection jurispru- 

dence. 

Intent may be proven circumstantially by 
utilizing a variety of objective factors and 

can be inferred from the totality of the 

relevant facts.'® The factors most appro- 
priate in this case are: (1) the presence of 

historical discrimination; and (2) the im- 
pact, as shown by the Baldus study, that 
the capital sentencing law has on a suspect 

class.!” The Supreme Court has indicated 

that: 

Evidence of historical discrimination is 
relevant to drawing an inference of pur- 
poseful discrimination, particularly 
where the evidence shows that diserimi- 
natory practices were commonly utilized, 
that they were abandoned when enjoined 
by courts or made illegal by civil rights 
legislation, and that they were replaced 
by laws and practices which, though neu- 
tral on their face, serve to maintain the 

status quo.'® 

" Evidence of disparate impact may dem- 
onstrate that an unconstitutional purpose 

15. The intent rule “serves a countervailing con- 

cern of limiting judicial policy making. Wash- 
ington v. Davis can be understood ... as a 
reflection of the Court's own sense of institu- 
tional self-restraint—a limitation on the power 
of judicial review that avoids having the Court 
sit as a super legislature....” Note, Section 
1981: Discriminatory Purpose or Disproportion- 

ate Impact, 30 Colum.L.R. 137, 160-61 (1980); 

see also Washington v. Davis, 426 U.S. 229, 247- 

48, 84 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). 

16. See Village of Arlington Heights v. Metropoli- 

tan Housing Developmen: Corp. 429 U.S. 252, 

266, 97 S.Ct. S55, 564, 50 L.Ed.2d 450 (1977). 

17. Id See also Rogers v. Lodge, 102 S.CL at 

3280. 

18. Rogers v. Lodge, 102 S.Ct. at 3280. 

 



  

McCLESKEY v. KEMP 925 
Cite as 753 F2d 877 (19853) 

may continue to be at work, especially 

where the discrimination is not explainable 

on non-racial grounds.’ Table 43, supra 

p. 4, the table and the accompanying evi 

dence leave unexplained the 20% racial dis- 

parity where the defendant is black and the 

victim is white and the murders occurred 

under very similar circumstances. 

Although the Court has rarely found the 

existence of intent where disproportionate 

impact is the only proof, it has, for exam- 

ple, relaxed the standard of proof in jury 

selection cases because of the “nature” of 

the task involved in the selection of jur- 

ors.?® Thus, to show an equal protection 

violation in the jury selection cases, a de 

fendant must prove that “the procedure 

employed resulted in a substantial under- 

representation of his race or of the identifi- 

able group to which he belongs.” # The 

idea behind this method is simple. As the 

Court pointed out, “[i}f a disparity is suffi 

ciently large, then it is unlikely that it is 

due solely to chance or accident, and, in the 

absence of evidence to the contrary, one 

must conclude that racial or other class-re- 

lated factors entered into the selection pro- 

cess.” 2 Once there is a showing of a 

substantial underrepresentation of the de- 

19. In Washington v. Davis, 426 U.S. at 242, 96 

S.Ct. at 2049, the Court stated: “It is also not 

infrequently true that the discriminatory impact 
. may for all practical purposes demoastrate 

unconstitutionality because in various circum- 

stances the discrimination is very difficult to 
explain on nonracial grounds.” See also Person- 
nel Administrator of Mass. v. Feeny, 442 US. 
256, 99 S.Ct. 2282, 2296 n. 24, 60 L.Ed.2d 870 
(1979) ( Washington and Arlington recognize that 
when a neutral law has a disparate impact upon 
a group that has historically been a victim of 
discrimination, an unconstitutional purpose 

may still be at work). 

20. Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 US. at 267 n. 
13, 97 S.Ct. at 564 n. 13 (“Because of the nature 
of the jury-selection task, however, we have 
permitted a finding of constitutional violation 
even when the statistical pattern does not ap- 
proach the extremes of Yick Wo [118 U.S. 356, 6 
S.CL. 1064, 30 L.Ed. 220] or Gormullion [364 US. 

339, 81 S.Ct. 125, 5 L.Ed.2d 110]"); see also 
International Bro. of Teamsters v. United States, 
431 US. 324, 339, 97 S.Ct. 1843, 1836, 32 

L.Ed.2d 396 (1977) (“We have repeatedly ap 
proved the use of statistical proof ... to estab 

fendant’s group, a prima facie case of dis- 

criminatory intent or purpose is established 

and the state acquires the burden of rebut- 

ting the case.? ; 

In many respects the imposition of the 

death penalty is similar to the selection of 

jurors in that both processes are discretion- 

ary in nature, vulnerable to the bias of the 

decision maker, and susceptible to a rigor- 

ous statistical analysis. 

The Court has refrained from relaxing 

the standard of proof where the case does 

not involve the selection of jurors because 

of its policy of: (1) deferring to the reason- 

able acts of administrators and executives; 

and (2) preventing the questioning of tax, 

welfare, public service, regulatory, and li 

tensing statutes where disparate impact is 

the only proof. However, utilizing the 

standards of proof in the jury selection 

cases to establish intent in this case will 

not contravene this policy because: (1) def- 

erence is not warranted where the penalty 

is grave and less severe alternatives are 

available; and (2) the court did not contem- 

plate capital sentencing statutes when it 

established this policy. Thus, statistics 

alone could be utilized to prove intent in 

this case. But historical "background is 

lish a prima facie case of racial discrimination 

in jury selection cases.”). 

21. Castaneda v. Partida, 430 U.S. 482, 494, 97 

S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). 

3. idan 13 

23. Id. at 495, 97 S.Ct. at 1280. 

24. Joyner, Legal Theories for Attacking Racial 

Disparity in Sentencing 18 Crim.L.Rep. 101, 
110-11 (1982) (“In many respects sentencing is 

similar to the selections of jury panels as in 

Castaneda”). The majority opinion notes that 

the Baldus study ignores quantitative difference 

in cases: “looks, age, personality, education, 

profession, job, clothes, demeanor, and re- 
morse. ...” Majority opinion at 62. However, 

it is these differences that often are used to 

mask, either intentionally or unintentionally, 

racial prejudice. 

28. See Washington v. Davis, 426 U.S. at 248, 96 

S.Ct. at 2051; Note, Section 1981: Discnminato- 

ry Purpose or Disproportionate Impact, 80 Co 
lum.L.R. 137, 14647 (1980). 

 



  

926 

also relevant and supports the statistical 

conclusions. : 

“Discrimination on the basis of race, odi- 

ous in all aspects, is especially pernicious in 

the administration of Justice.”?® It is the 

duty of the courts to see to it that through- 

out the procedure for bringing a person to 

justice, he shall enjoy “the protection which 

the Constitution guarantees.”? In an im- 

perfect society, one has to admit that it is 

impossible to guarantee that the adminis- 

trators of justice, both judges and jurors, 

will successfully wear racial blinders in ev- 

ery case.®® However, the risk of prejudice 

must be minimized and where clearly 

present eradicated. 

Discrimination against minorities in the 

criminal justice system is well document- 

ed? This is not to say that progress has 

26. Rose v. Mitchell, 443 US. 545, 536, 99 S.C. 

2993, 61 L.Ed.2d 739 (1979). 

27. Rose, supra, 443 U.S. at 557, 99 S.Ct. at 3000. 

28. As Robespierre contended almost 200 years 

ago: 

Even if you imagine the most perfect judicial 

system, even if you find the most upright and 

the most enlightened judges, you will still 

have to allow place for error or prejudice. 

Robespierre (G. Rude ed. 1967). 

29. See, e.g, Johnson v. Virginia, 373 us. 61, 83 

S.Ct. 1053, 10 L.Ed.2d 195 (1963) (invalidating 

segregated seating in courtrooms); Hamilton v. 

Alabama, 376 U.S. 630, 84 S.Ct. 982, 11 L.Ed.2d 

979 (1964) (conviction reversed when black de- 

fendant was racially demeaned on cross-exami- 

nation); Davis v. Mississippi, 394 US. 721, 89 

S.Ct. 1394, 22 L.Ed.2d 676 (1969) (mass finger- 

printing of young blacks in search of rape sus- 

pect overturned). See also Rose v. Mitchell, 

supra {racial discrimination in grand jury selec- 

tion); Rogers v. Britton, 476 F.Supp. 1036 (E.D. 

Ark.1979). A very recent and poignant example 

of racial discrimination in the criminal justice 

system can be found in the case of Bailey v. 

Vining, unpublished order, civ. act. no. 76-199 

(M.D.Ga.1978). In Bailey, the court declared 

the jury selection system in Putnam County, 

Georgia to be unconstitutional. The Office of 

the Solicitor sent the jury commissioners a 

memo demonstrating how they could underrep- 

resent blacks and women in traverse and grand 

juries but avoid a prima facie case of discrimi- 

nation becausc the percentage disparity would 

still be within the parameters of Supreme Court 

and Fifth Circuit case law. See notes 7-3 supra 

and relevant text. The result was that a limited 

753 FEDERAL REPORTER, 2d SERIES 

not been made, but as the Supreme Court, 

in 1979 acknowledged, 

we also cannot deny that, 114 years after 

the close of the War between the States 

and nearly 100 years after Strauder (100 

U.S. 303, 25 L.Ed. 664] racial and other 

forms of discrimination still remain a 

fact of life, in the administration of jus- 

tice as in our society as a whole. Per- 

haps today that discrimination takes a 

form more subtle than before. But it is 

no less real or pernicious. 

If discrimination is especially pernicious 

in the administration of justice, it is no- 

where more sinister and abhorrent than 

when it plays a part in the decision to 

impose society’s ultimate sanction, the pen- 

alty of death.” It is also a tragic fact that 

this discrimination is very much a part of 

the country’s experience with the death 

penalty? Again and as the majority 

number of blacks were handpicked by the jury 

commissioners for service. 

"30. Rose, supra, 443 U.S. at 358-59, 99 SC. = 

3001. 

31. See, e.g, Furman v. Georgia, 408 U.S. 238, 92 

S.Ct. 2726, 33 L.Ed.2d 346 (1972) (see especially 

the opinions of Douglas, J., concurring, id. at 

249-252, 92 S.Ct. at 2731-2733; Stewart, J., con- 

curring, id. at 309-310, 92 S.Ct. at 2762; Mar- 

shall, J., concurring, id. at 364-365, 92 S.Ct at 

2790; Burger, C.J., dissenting, id. at 389-390 n., 

12, 92 S.Ct. at 2803-2804 n. 12; Powell, J, 

dissenting, id. at 449, 92 S.CL. at 2833). 

32. This historical discrimination in the death 

penalty was pointed out by Justice Marshall in 

his concurring opinion in Furman, supra. 408 

U.S. at 364-65, 92 S.Ct. at 2790, “{ilndeed a look 

at the bare statistics regarding executions is 

enough to betray much of the discrimination.” 

Jd. See also footnote 32 for other opinions in 

Furman discussing racial discrimination and 

the death penalty. For example, between 1930 

and 1980, 3,863 persons were executed in the 

United States, 54% of those were blacks or 

members of minority groups. Of the 455 men 

executed for rape, 89.3% were black or minori- 

ties. Sarah T. Dike. Capital Punishment in the 

United States, p. 43 (1982). Of the 2,307 people 

executed in the South during that time period, 

1659 were black. During the same fifty-year 

period in Georgia, of the 366 people executed, 

298 were black. Fifty-eight blacks were exe- 

cuted for rape as opposed to only three whites. 

Six blacks were executed for armed robbery 

while no whites were. Hugh A. Bedau, ed., The 

Death Penalty in America (3rd ed. 1982). 

 



  

UNITED STATES v. CRUZ-VALDEZ 927 
Cite as 753 F.2d 927 (1988) 

points out, the new post-Furman statutes 
have improved the situation but the Baldus 
study shows that race is still a very real 

factor in capital cases in Georgia. Some of 
this is conscious discrimination, some of it 

unconscious, but it is nonetheless real and 

it is important that we at least admit that 
discrimination is present. 

Finally, the state of Georgia also has no 
compelling interest to justify a death penal 
ty system that discriminates on the basis of 
race. Hypothetically, if a racial bias re- 
flected itself randomly in 20% of the convie- 
tions, one would not abolish the criminal 

justice system. Ways of ridding the sys- 

tem of bias would be sought but absent a 
showing of bias in a given case, little else 
could be done. The societal imperative of 
maintaining a criminal justice system to 
apprehend, punish, and confine perpetra- 

tors of serious violations of the law would 
outweigh the mandate that race or other 
prejudice not infiltrate the legal process. 
In other words, we would have to accept 
that we are doing the best that can be done 

in a system that must be administered by 

people, with all their conscious and uncon- 
scious biases. 

However, such reasoning cannot sensibly 
be invoked and bias cannot be tolerated 
when considering the death penalty, a pun- 
ishment that is unique in its finality. The 
evidence in this case makes a prima facie 

‘case that the death penalty in Georgia is 
being applied disproportionately because of 

race. The percentage differentials are not 
de minimis. To allow the death penalty 

under such circumstances is to approve a 

racial preference in the most serious deci- 
sion our criminal justice system must 

make. This is a result our Constitution 
cannot tolerate. 

The majority in this case does not 

squarely face up to this choice and its 

consequences. Racial prejudice/preference 

both conscious and unconscious is still a 

part of the capital decision making process 
in Georgia. To allow this system to stand 
is to concede that in a certain number of 
cases, the consideration of race will be a 

33. See, e.g, Woodson v. North Carolina, 428 U.S. 

factor in the decision whether to impose 

the death penalty. The Equal Protection 

Clause of the Fourteenth Amendment does 

not allow this result. The decision of the 
district court on the Baldus issue should be 
reversed and the state required to submit 
evidence, if any is available, to disprove the 
prima facie case made by the plaintiff. 

 



  

  

  

  
      

  
| Appendix B - 

  

i 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) 
  

i 
{ 
| 
| 

 



  

338 

care, is more than evident. (For an unsuc- 

cessful challenge to similar special laws 

dealing with provisional health needs, see: 

Benson v. Arizona State Bd. of Dental 

Examiners, 673 F.2d 272, 277-78 (9th Cir. 

1982). 

[5] ~ Plaintiffs have chosen to rest on a 

roughly sketched constitutional claim based 

on repetitive incantations of the words 

“equal protection” and “due process’ with- 

out making any references to any instanc- 

es, aside from those justified by the special 

laws which were not even in effect when 

many of them started. their dental educa- 

tion. They have not even made a raw 

challenge to the Board's application of the 

statutory criteria for recognizing a dental 

school, a relatively simple task given the 

accessibility of the information needed to 

make a comparative analysis of the courses 

of study and professional recognition of the 

institutions that they attended with compa- 

rable items in the School of Odontology of 

the Medical Sciences Campus of the Uni 

versity of Puerto Rico. The party opposing 

a motion for summary judgment cannot 

rest on the hope that the factual basis of 

broadly phrased pleadings will somehow 

emerge at trial without pointing to specific 

facts in the record which may still be in 

controversy and which are relevant to the 

outcome of the litigation. See: Emery rv. 

Merrimack Valley Woods Products, Inc. 

701 F.2d 985, 990-93 (1st Cir.1983);, Mane- 

go v. Cape Cod Five Cents Sav. Bank, 692 

F.2d 174, 176-77 (1st Cir.1982); Over The 

Road Drivers, Inc. v. Transport Insur- 

ance Co., 637 F.2d 816, 818 (Ist Cir.1980). 

[6] Plaintiffs’ reference to Justice 

Mathew's memorable phrase in Yick Wo v. 

Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 

1072. 30 L.Ed. 220* (1886) is a typical at- 

tempt to fuel a meritless cause of action 

with a general principle of constitutional 

law. That case and this one depend upon 

an entirely different state of facts. There, 

the appellant, Yick Wo, was deprived of a 

means of making a living at the mere will 

of the board of supervisors of the city of 

2. Though the law itself be fair on its face and 

impartial in appearance, yet, if it is applied and 

administered by public authority with an evil 

eve and an unequal hand, so as practicaily to 

580 FEDERAL SUPPLEMENT 

San Francisco which refused him and 200 

other Chinese subjects permission to carry 

on a laundry business while permitting 80 

others, not Chinese subjects, to. carry. 

the same business under similar tortALONS. 

The Court concluded that no reason existed 

for the discrimination ‘‘except hostility to 

the race and nationality to which the pet- 

tioners belong, and which, in the eye of the 

law, is not justified.” Yick Wo at 373, 6 

S.Ct. at 1072. Here the Board's rejection 

of plaintiffs’ petition to take the exams is 

based not on an application of law with an 

“evil eye and an unequal hand” but on 

their valid authority and in the exercise of 

their duty- to tomply with the legitimate 

interest of the Commonwealth of Puerto 

Rico in requiring that those that choose 

this jurisdiction to practice dentistry be ad- 

equately qualified. 

  

   

Plaintiffs having failed to establish even 

the semblance of a genuine controversy on 

material facts, see e.g... Mas Marques . 

Digital Equipment Co., 637 F.2d 24 (1st 

Cir.1980), the undisputed facts before the 

Court compel, as a matter of law, that the 

complaint be dismissed. Judgment shall be 

entered accordingly. 

SO ORDERED. 

l=} XEY NUMBER SYSTEM 

“
m
E
 

Warren McCLESKEY, Petitioner, 

Vv. 

Walter D. ZANT, Respondent. 

"Civ. A. No. C81-2434A. 

United States District Court, 

N.D. Georgia, 

Atlanta Division. 

Feb. 1, 1984. 

Habeas corpus petition was filed. The 

District Court, Forrester, J., held that: (1) 

make unjust and itlegal discriminations between 

persons in similar circumstances, material to 

their rights, the denial of equal justice is still 

within the prohibition of the constitution. 

 



  

McCLESKEY v. ZANT 339 
Cite as $80 F.Supp. 338 (1984) 

statistics on Georgia death penalty statute 

did not demonstrate prima facie case in 

support of contention that death penalty 

was imposed upon petitioner because of his 

race or because of race of victim; (2) jury 

instructions did not deprive defendant of 

due process; (3) claim that prosecutor 

failed to reveal existence of promise of 

assistance made to key witness entitled 

petitioner to relief; (4) defendant was not 

denied effective assistance of counsel; and 

(5) admission of evidence concerning prior 

crimes and convictions did not violate due 

process rights of petitioner. 

Ordered accordingly: 

1. Constitutional Law &211(3) 

Application of a statute, neutral on its 

face, unevenly applied against minorities, is 

a violation of equal protection clause of the 

Fourteenth Amendment. U.S.C.A. Const. 

Amend. 14. 

2. Constitutional Law &42.2(2) 

Defendant sentenced to death had 

standing under equal protection clause to 

attack death penalty sentence by contend- 

ing that it was imposed on him because of 

race of his vietim. U.S.C.A. Const.Amend. 

14. 
- 

3. Constitutional Law &223 

With reference to defendant's argu- 

ment that he was being discriminated 

against on the basis of the race of his 

vietim when death penalty was imposed, 

equal protection interests were not impli- 

cated in light of evidence that defendant 

was treated as any member of the major: 

ty. U.S.C.A. Const.Amend. 14. 

4. Criminal Law ¢1213.8(8) 

Death penalty is not per se cruel and 

unusual in violation of Eighth Amendment. 

U.S.C.A. Const.Amend. &. 

5. Criminal Law &1213.8(8) 
Defendant sentenced to death failed to 

state claim that imposition of death penalty 

violated Eighth Amendment. US.C.A. 

Const.Amend. 8. 

6. Constitutional Law &253.2(1) 

Due process of law within meaning of 

Fourteenth Amendment mandates that 

laws operate on all alike such that an indi- 

"vidual is not subject to arbitrary exercise 

of governmental power. U.S.C.A. Const. 

Amend. 14. 

7. Evidence 150 

Intentional discrimination which the 

law requires to prove a violation of the 

Fourteenth Amendment cannot be shown 

by statistics alone. U.S.C.A. Const.Amend. 

14. 

8. Constitutional Law &253.2(1) 

Disparate impact alone is insufficient 

to establish violation of Fourteenth Amend- 

ment unless evidence of disparate impact is 

so strong that only permissible inference is 

one of intentional discrimination. U.S.C.A. 

Const.Amend. 14. 

9. Evidence ¢=150 

In death penalty case, any statistical 

analysis used in challenging the imposition 

of death penalty under equal protection 

clause must reasonably account for racially 

neutral variables which could have produc- 

ed effect observed. U.S.C.A. Const. 

Amend. 14. 

10. Evidence 150 

Challenges to death penalty brought 

under equal protection clause requires that 

statistical evidence show likelihood of dis- 

criminatory treatment by decision makers 

who made judgments in question. U.S. 

C.A. Const.Amend. 14. 

11. Constitutional Law 223 

In challenging imposition of death pen- 

alty on basis of racial diserimination, un- 

derlving data Sh must be shown to 

be accurate. U.S.CA. Const.Amend. 14. 

12. Evidence 150 

In criminal prosecution in which de- 

fendant challenges imposition of deat 

alty on basis of 

sults of 

significant. 

h pen- 

racial diserimination, re- 

statistics should be statistically 

U.S.C.A. Const.Amend. 14. 

 



  

340 

13. Evidence 150 

Generally, when accused challenges 

imposition of death penalty on basis of 

racial discrimination, statistical showing is 

considered significant if its “P” value is .05 
or less, indicating that probability that re- 

sult would have occurred by chance is one 

in 20 or less. U.S.C.A. Const.Amend. 14. 

14. Evidence &=150 

Before trial court will find that some- 

thing is established based on multiple re- - 

gression analysis, it must first be shown 

that model includes all of major variables 
likely to have an effect on dependent varia- 
ble and it must be shown that unaccounted 
for effects are randomly distributed 
throughout the universe and are not correl- 
ated with independent variables included. 

U.S.C.A. Const.Amend. 14. 

15. Evidence 150 

Three kinds of evidence may be intro- 
duced to validate regression model; direct 

evidence as to what factors are considered, 

what kinds of factors generally operate in 

decision-making process like that under 

challenge, and expert testimony concerning 

what factors can be expected to influence 

process under challenge. U.S.C.A. Const. 

Amend. 14. 

16. Evidence ¢=150 

In habeas corpus proceeding in which 

defendant challenges imposition of death 
penalty on basis of racial discrimination, 

multiple regression analysis will be reject- 

ed as a tool if it does not show effect on 

people similarly situated; across-the-board 

disparities prove nothing. U.S.C.A. Const. 

Amend. 14. 

17. Evidence 150 : 

When imposition of death penalty is 

challenged on basis of racial discrimination, 

a regression model that ignores informa- 

tion central to understanding causal rela- 

tionships at issue is insufficient to raise 

inference of discrimination. U.S.C.A. 

Const.Amend. 14. 

18. Evidence 150 

When defendant challenges imposition 

of death penalty on basis of racial discrimi- 

580 FEDERAL SUPPLEMENT 

nation, validity of regression model de- 

pends upon showing that it predicts varia- 

tions in dependent variable to some sub- 
stantial degree. U.S.C.A. Const.Amend. 
14. 

19. Constitutional Law &250.3(1) 

Where gross statistical disparity can 

be shown, that alone may constitute prima 

facie case of discrimination in imposition of 

death penalty. U.S.C.A. Const.Amend. 14. 

20. Civil Rights ¢13.13(1) 

Generally, once discrimination plaintiff 
has put on prima facie statistical case, bur- 

den shifts to defendant to go forward with 

evidence showing either existence of legiti- 

mate nondiscriminatory explanation for its 

actions or that plaintiff's statistical proof is 

unacceptable. U.S.C.A. Const.Amend. 14. 

21. Evidence 150 

Statistics relied upon by plaintiff in 

discrimination case to establish prima facie 

case can form basis of defendant's rebuttal 

case, when, for example, defendant shows 

that numerical analysis is not the product 

of good statistical methodology. U.S.C.A. 
Const.Amend. 14. 

22. Evidence 150 

Prima facie case of discrimination is 

not established until plaintiff has demon- 

strated both that data base is sufficiently 

accurate and that regression mode! has 

been properly constructed. USCA 

Const.Amend. 14. 

23. Evidence ¢=1350 

Statistics produced on weak theoretical 

foundation are insufficient to establish pri- 

ma facie discrimination case. U.S.C.A. 

Const.Amend. 14. 

24. Evidence 150 

Once prima facie discrimination case is 
established, burden of production is shifted 

to defendant and if it has not already be- 
come apparent from plaintiff's presentu- 

tion, it then becomes defendant's burden to 

demonstrate plaintiff's statistics are mis- 

leading and such rebuttal may not be made 

bv speculative theories. U.S.C.A. Const. 
Amend. 14. 

 



  

McCLESKEY v. ZANT - 341 
Cite as 580 F.Supp. 338 (1984) 

25. Evidence &=150 

Statistics on Georgia death penalty 
statute did not demonstrate prima facie 
case in support of contention that death 

penalty was imposed upon defendant be- 
cause of his race or because of race of his 
"victim since there was no consistent statis- 

tically significant evidence that death pen- 
alty was being imposed because defendant 
was black and victim was white, and even 
if prima facie case was made, the state 

rebutted statistical evidence by showing ex- 
istence of another explanation for the ob- 
served result, i.e.,, that white victim cases 

were acting as proxies for aggravated 

cases and black victim cases were acting as 

proxies for mitigated cases. U.S.C.A. 
Const.Amend. 14. 

26. Witnesses €367(1) 

The rule announced by the Supreme 
Court in Giglio v. United States holding 
that the jury must be apprised of any 

promise which induces key government wit- 

ness to testify on government's behalf ap- 

plies not only to traditional deals made by 

prosecutor in exchange for testimony but 
also to any promises or understandings 

made by any member of prosecutorial 

team, which includes police investigators. 

27. Witnesses ¢367(1) 

A promise, made prior to witness’ testi 

mony, that investigating detective will 
speak favorably to federal authorities con- 

cerning pending federal charges is within 

scope of Giglio v. United States because it 

is sort of promise of favorable treatment 

which could induce witness to testify false- 

ly on behalf of government. 

28. Constitutional Law &268(3) 

Failure of the state to disclose under- 

standing with one of its key witnesses re- 

garding pending Georgia criminal charges 

violated defendant's due process rights; 

disclosure of the promise of favorable 

treatment and correction of other 

hoods in the witness’ testimony could rea- 

sonably have affected jury verdict on 

charge of malice murder. U.S.C.A. Const. 

Amend. 14. 

false- 

29. Constitutional Law &266(7) 

Due process clause protects accused 

against conviction except upon proof be- 

yond a reasonable doubt of every fact nec- 

essary to constitute crime with which he is 

charged. U.S.C.A. Const.Amend. 14. 

30. Criminal Law &778(2, 3) 

Jury instructions which relieve prose- 

cution of burden of proving beyond a rea- 

sonable doubt every fact necessary to con- 

stitute crime with which defendant is 

charged or which shift to accused burden 
of persuasion on one or more elements of 
crime are unconstitutional. U.S.C.A. 

Const.Amend. 14. 

31. Criminal Law &=778(5) 

In analyzing a Sandstrom claim, court 

must first examine crime for which defend- 

ant has been convicted and then examine 

complained-of charge to determine whether 

charge unconstitutionally shifted burden of 
proof on any essential element of crime. 

U.S.C.A. Const.Amend. 14. 

32. Robbery 11 

Offense of armed robbery under Geor- 

“gia law contains elements of taking of 
property from person or immediate pres- 

ence of person. by use of offensive weapon 

with intent to commit theft. Ga.Code, 
§ 26-1902. 

33. Homicide <7 

Under Georgia law, offense of murder 

contains essential elements of homicide, 

malice aforethought, and unlawfulness. 

0.C.G.A. § 16-3-1. 

34. Homicide &=11 

Under Georgia law, “malice” element, 

which distinguishes murder from lesser of- 

fense of voluntary manslaughter, means 

simply intent to kill in the absence of prov- 

ocation. O.C.G.A. § 16-5-1. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

35. Criminal Law T7786) 

In Georgia murder prosecution, jury 

instruction stating that acts of person of 

sound mind and discretion are presumed to 

be part of person's will and person of 

 



  

342 

sound mind and discretion is presumed to 

intend natural and probable consequences 

of his act, both of which presumptions may 

be rebutted, taken in context of entire 

charge to jury, created only permissive in- 

ference that jury could find intent based 

upon all facts and circumstances of case, 

and thus, did not violate Sandstrom. 

36. Criminal Law &1172.2 

Even if challenged jury instructions re- 

garding burden of proof in murder prosecu- 

tion violated Sandstrom, error was harm- 

less beyond a reasonable doubt since it 

could not be concluded that there was any 

reasonable likelihood that intent instruc- 

tion, even if erroneous, contributed to 

jury's decision to convict defendant of mal 

ice murder and armed robbery under Geor- 

gia law. Ga.Code, § 26-1902; 0.C.G.A. 

§ 16-31. 

37. Criminal Law &633(1) 

References in criminal prosecution to 

appellate process are not per se unconstitu- 

tional unless on record as a whole it can be 

said that it rendered entire trial fundamen- 

tally unfair. 

38. Criminal Law €713, 722'% 

In Georgia murder prosecution, prose- 

cutor's arguments did not intimate to jury 

that death sentence could be reviewed or 

set aside on appeal; rather, prosecutor's 

argument referred to defendant's prior 

criminal record and sentences he had re- 

ceived and such arguments were not imper- 

missible. 

39. Costs &302.2(2) 

Under Georgia law, appointment of ex- 

pert in criminal prosecution ordinarily lies 

within discretion of trial court. 

10. Costs ©302.2(2) 

In Georgia murder prosecution, trial 

" court did not abuse its discretion in denying 

defendant funds for additional ballistics ex- 

pert since defendant had ample opportunity 

to examine evidence prior to trial and to 

subject state's expert to thorough cross-ex- 

amination. 

580 FEDERAL SUPPLEMENT 

41. Criminal Law €2369.2(4) 

In murder prosecution, evidence tend- 

ing to establish that defendant had partici- 

pated in earlier armed robberies employing 

same modus operandi and that in one of 

those robberies he had stolen what was 

alleged to have been weapon that killed 

police officer in instant robbery was admis- 

sible under Georgia law. 

42. Criminal Law &783(1) 

In murder prosecution, trial court's 

jury instructions regarding use of evidence 

of prior crimes, which evidence was admis- 

sible, were not overbroad and did not deny 

defendant a fair trial under Georgia law. 

43. Criminal Law ©1208.1(6) 

In prosecution for armed robbery and 

malice murder, trial judge specifically in- 

structed jury that it could not impose death 

penalty unless it found at least one statuto- 

ry aggravating circumstance and that if it 

found one or more statutory aggravating 

circumstances it could also consider any 

other mitigating or aggravating circum- 

stances in determining whether or not 

death penalty should be imposed, and thus, 

trial court did not err by giving jury com- 

plete and limited discretion to use any of 

evidence presented at trial during its delib- 

erations regarding imposition of death pen: 

alty under Georgia law. 

44. Habeas Corpus &25.1(8) 

In prosecution for armed robbery and 

malice murder, admission of evidence con- 

cerning two prior armed robberies for 

which defendant had not been indicted and 

admission of details of other prior armed 

robberies for which he had been convicted, 

was not so seriously prejudicial that it un- 

dermined reliability of guilt determination 

under Georgia law, although such evidence 

probably would not have been admissible in 

federal prosecution. 

45. Habeas Corpus e=85.5(1) 

In habeas corpus proceeding, there 

was no basis in record or In arguments 

presented by defendant for concluding that 

the Georgia Supreme Court was in error in 

finding that lineup was not impermissibly 

 



  

McCLESKEY v. ZANT 343 
Cite as 580 F.Supp. 338 (1984) 

suggestive and that in-court identifications 

were reliable. 

46. Criminal Law ¢=412.1(1) 

In Georgia prosecution for armed rob- 

bery and malice murder, trial judge did not 

err in finding that statement given to police 

officers was freely and voluntarily given; 

therefore, there was no error in admitting 

statement into evidence. 

47. Jury 108 

In Georgia prosecution for armed rob-- 

bery and malice murder, since two prospec 

tive jurors indicated they would not under 

any circumstances vote for death penalty, 

trial court committed no error in excluding 

them. 

48. Jury <=33(2.1) 

In Georgia prosecution for armed rob-. 

bery and malice murder, exclusion of 

death-scrupled jurors did not violate de- 

fendant’s right to be tried by jury drawn 

from representative cross section of com- 

munity. 

49. Criminal Law €627.5(1) 

Brady does not establish any right to 

pretrial discovery in a criminal case, but 

instead seeks only to insure fairness of 

defendant's trial and reliability of jury’s 

determinations. 

50. Criminal Law 914 

Defendant who seeks new trial under 

Brady must, to establish a successful 

claim, show prosecutor’s suppression of ev- 

idence, favorable character of suppressed 

evidence for the defense, and materiality of 

suppressed evidence. 

51. Constitutional Law &268(5) 

Since certain evidence was before jury 

in Georgia prosecution for armed robbery 

and malice murder, habeas court could not 

find that failure to disclose it prior to trial 

deprived defendant of due process. U.S. 

C.A. Const. Amend. 14. 

52. Habeas Corpus &85.1(1), 92(1) 

In reviewing sufficiency of evidence on 

habeas corpus petition, district court must 

view evidence in a light most favorable to 

“the state and should sustain jury verdict 

unless it finds that no rational trier of fact 

could find defendant guilty beyond a rea- 

sonable doubt. 

53. Homicide &253(1) 

Testimonial and circumstantial evi 

dence was sufficient to sustain conyiction 

for malice murder under Georgia law. 

54. Criminal Law ©641.13(4) 

Criminal defendant is entitled to effec- 

tive assistance of counsel, that is, counsel 

reasonably likely to render reasonably ef- 

fective assistance. U.S.C.A. Const.Amend. 

* 

55. Criminal Law &641.13(1) 

The constitution does not guarantee 

errorless counsel in criminal prosecution. 

U.S.C.A. Const.Amend. 6. 

56. Habeas Corpus &=85.5(9) 

In order to be entitled to habeas cor- 

pus relief on claim of ineffective assistance 

of counsel, petitioner must establish by a 

preponderance of the evidence that based 

upon totality of circumstances in entire 

record his counsel was not reasonably like- 

ly to render and in fact did not render 

reasonably effective assistance and-that in- 

effectiveness of counsel resulted in actual 

and substantial disadvantage to course of 

his defense. U.S.C.A. Const.Amend. 6. 

57. Habeas Corpus &25.1(6) 

Even if habeas corpus petitioner meets 

burden of establishing ineffective assist- 

ance of counsel, relief may be denied if 

state can prove that in context of all evi- 

dence it remains certain beyond a reasona- 

ble doubt that outcome of proceedings 

would not have been altered but for inef- 

fectiveness of counsel. U.S.C.A. Const. 

Amend. 6. 

58. Criminal Law &641.13(2) 

In Georgia prosecution for armed rob- 

bery and malice murder, given contradicto- 

ry descriptions given by witnesses at store, 

inability of witness to identify defendant, 

defendant's repeated statement that he 

was not present at scene, and possible out- 

come of pursuing the only other defense 

available, trial counsel's decision to pursue 

 



  

T . 

344 

alibi defense was not unreasonable and did 

not constitute ineffective assistance of 

counsel. U.S.C.A. Const.Amend. 6. 

59. Criminal Law ©641.13(6) 

Failure of trial counsel in Georgia 

prosecution for armed robbery and malice 

murder to interview store employees was 

not unreasonable, trial counsel having 

made reasonable strategic choice to pursue 

alibi defense, and thus, was not ineffective 

assistance of counsel. U.S.C.A. Const. 

Amends. 6, 14. : 

60. Habeas Corpus &25.1(6) 

Habeas corpus petitioner was not enti- 

tled to relief on grounds that his counsel 

was ineffective because he did not disbe- 

lieve petitioner and had undertaken inde- 

‘pendent investigation. 

61. Criminal Law €641.13(6) 

In Georgia prosecution for armed rob- 

bery and malice murder, trial counsel was 

not ineffective because he failed to inter 

view state’s ballistics expert where counsel 

had read expert's report and was prepared 

adequately to cross-examine expert at trial. 

U.S.C.A. Const.Amend. 6. 

62. Criminal Law &641.13(2) 

Since there was nothing unconstitu- 

tional about chance viewing of defendant 

prior to trial, failure of trial counsel to 

move for continuance or mistrial on basis 

of suggestive lineup procedure did not con- 

stitute ineffective assistance of counsel. 

U.S.C.A. Const.Amend. 6. 

63. Habeas Corpus &85.5(11) 

Assuming that failure of trial counsel 

to investigate prior convictions of defend- 

ant constituted ineffective assistance of 

_counsel, petitioner could not show actual 

“and substantial prejudice resulting from 

ineffectiveness warranting habeas relief. 

=... %E.S.C.A. Const. Amend. 6. 

64. Criminal Law &641.13(2) 

In Georgia prosecution for armed rob- 

berv and malice murder, trial court's in- 

structions on presumptions of intent, other 

acts evidence and aggravating circumstanc- 

es were not erroneous or overbroad: thus, 

580 FEDERAL SUPPLEMENT 

failure of trial counsel to object to instruc- 

tions did not constitute ineffective assist- 

ance of counsel. U.S.C.A. Const.Amend. 6. 

65. Habeas Corpus &85.5(9) 

In habeas corpus proceeding record did 

not support finding of actual and substan- 

tial prejudice to defendant due to ineffec- 

tive assistance of trial counsel at sentenc- 

ing phase. U.S.C.A. Const.Amend. 6. 

66. Habeas Corpus €25.1(6) 

There was no actual and substantial 

| prejudice caused to habeas petitioner by 

trial counsel’s failure to review and correct 

mistake in trial judge’s posttrial sentencing 

report, even if such failure constituted inef- 

fective assistance of counsel. U.S.C.A. 

Const.Amend. 6. 

  

Robert H. Stroup, Atlanta, Ga. Jack 

Greenberg, John Charles Boger, New York 

City, Timothy K. Ford, Seattle, Wash., An- 

thony G. Amsterdam, N.Y. University Law 

School, New York City, for petitioner. 

Michael J. Bowers, Atty. Gen. Mary 

Beth Westmoreland, Asst. Atty. Gen. At- 

lanta, Ga., for respondent. 

ORDER OF THE COURT 

FORRESTER, District Judge. 

Petitioner Warren McCleskey was con- 

victed of two counts of armed robbery and 

one count of malice murder in the Superior 

Court of Fulton County on October IZ, 

1978. The court sentenced McCleskey to 

death on the murder charge and to consec- 

utive life sentences, to run after the death 

sentence, on the two armed robbery 

charges. On automatic appeal to the Su- 

preme Court of Georgia the convictions and 

the sentences were affirmed. McClesky v. 

State. 245 Ga. 108, 263 S.E.2d 146 (1920). 

The Supreme Court of the United States 

denied McCleskey's petition for a writ of 

certiorari. McClesky vr. Georgia, 449 US. 

291. 101 S.Ct. 253, 66 L.Ed.2d 119 (1920). 

On December 19, 1980 petitioner filed an 

extraordinary motion for a new trial in the 

Superior Court of Fulton County. No hear- 

ing has ever been held on this motion. 

 



  

McCLESKEY v. ZANT 345 
Cite as 580 F.Supp. 338 (1984) 

Petitioner then filed a petition for writ of 

habeas corpus in the Superior Court of 

Butts County. After an evidentiary hear- 

ing the Superior Court denied all relief 

sought. McCleskey v. Zant, No. 4909 

(Sup.Ct. of Butts County, April 8, 1981). 

On June 17, 1981 the Supreme Court of 

Georgia denied petitioner's application for 

a certificate of probable cause to appeal the 

decision of the Superior Court of Butts 

County. The Supreme Court of the United 

States denied certiorari on November 30, 

1981. McCleskey v. Zant, 454 U.S. 1093, . 

102 S.Ct. 659, 70 L.Ed.2d 631 (1981). 

Petitioner then filed this petition for writ 

of habeas corpus on December 30, 1981. 

He asserts 18 separate grounds for grant- 

ing the writ. Some of these grounds as- 

sert alleged violations of his constitutional 

rights during his trial and sentencing. 

Others attack the constitutionality of Geor- 

gia’s death penalty. Because petitioner 

claimed to have sophisticated statistical evi- 

dence to demonstrate that racial discrimina- 

tion is a factor in Georgia's capital sentenc- 

ing process, this court held an extensive 

evidentiary hearing to examine the merits 

of these claims. The court's discussion of 

the statistical studies and their legal signif- 

icance is in Part II of this opinion. Peti- 

tioner's remaining contentions are dis- 

‘cussed in Parts III through XVI. The 

court has concluded that petitioner is enti- 

tled to relief on only one of his grounds, his 

claim that the prosecution failed to reveal 

the existence of a promise of assistance 

made to a key witness. Petitioner's re- 

maining contentions are without merit. 

1. DETAILS OF THE OFFENSE. 

On the morning of May 13, 1978 petition- 

er and Ben Wright, Bernard Dupree, and 

David Burney decided to rob a jewelry 

store in Marietta, Georgia. However, after 

Ben Wright went into the store to check it 

out, they decided not to rob it. The four 

then rode around Marietta looking for an- 

other suitable target. They eventually de- 

cided to rob the Dixie Furniture Store in 

Atlanta. Each of the four was armed. 

The evidence showed that McCleskey 
580 F Supp.—10 

carried a shiny nickel-plated revolver 

matching the description of- a .38 caliber 

Rossi revolver stolen in an armed robbery 

of a grocery store a month previously. 

Ben Wright carried a sawed-off shotgun, 

and the other two carried pistols. McCles- 

key went into the store to see how many 

people were present. He walked around 

the store looking at furniture and talking 

with one of the sales clerks who quickly 

concluded that he was not really interested 

in buying anything. After counting the 

people in the store, petitioner returned to 

the car and the four men planned the rob- 

bery. Executing the plan, petitioner en- 

tered the front of the store while the other 

three entered the rear by the loading dock. 

Petitioner secured the front of the store by 

rounding up the people and forcing them to 

lie face down on the floor. The others 

rounded up the employees in the rear and 

began to tie them up with tape. The man- 

ager was forced at gunpoint to turn over 

the store receipts, his watch, and $6.00. 

Before the robbery could be completed, Of- 

ficer Frank Schlatt, answering a silent 

alarm, pulled his patrol car up in front of 

the building. He entered the front door 

and proceeded down the center aisle until 

he was almost in the middle of the store. 

Two shots then rang out, and Officer 

Schlatt collapsed, shot once in the face and 

once in the chest. The bullet that struck 

Officer Schlatt in the chest ricocheted off a 

pocket lighter and lodged in a nearby sofa. 

That bullet was recovered and subsequent- 

ly determined to have been fired from a 38 

caliber Rossi revolver. The head wound 

was fatal. The robbers all fled. Several 

weeks later petitioner was arrested in Cobb 

County in connection with another armed 

robbery. He was turned over to the Atlan- 

ta police and gave them a statement con- 

fessing participation in the Dixie Furniture 

Store robbery but denying the shooting. 

Although the murder weapon was never 

recovered, evidence was introduced at trial 

that petitioner had stolen a .38 caliber Ros- 

si in an earlier armed robbery. The State 

also produced evidence at trial that tended 

to show that the shots were fired from the 

front of the store and that petitioner was 

 



  

346 

the only one of the four robbers in the 

front of the store. The State also intro- 

duced over petitioner's objections the state- 

ments petitioner had made to Atlanta po- 

lice. Finally, the State produced testimony 

by one of the co-defendants and by an 

inmate at the Fulton County Jail that peti- 

tioner had admitted shooting Officer 

Schlatt and had even boasted of it. In his 

defense petitioner offered only an unsub- 

stantiated alibi defense. 

The jury convicted petitioner of malice 

murder and two counts of armed robbery. 

Under Georgia's bifurcated capital sentenc- 

ing procedure, the jury then heard argu- 

ments as to the appropriate sentence. Peti- 

tioner offered no mitigating evidence. Af- 

ter deliberating the jury found two statuto- 

ry aggravating circumstances—that the 

murder had been committed during the 

course of another capital felony, an armed 

robbery; and that the murder had been 

committed upon a peace officer engaged in 

the performance of his duties. The jury 

sentenced the petitioner to death on the 

murder charge and consecutive life sen- 

tences on the armed robbery charges. 

II. THE CONSTITUTIONALITY OF 

THE GEORGIA DEATH PENAL 

TY. 

A. An Analytical Framework of the 

Law. 

Petitioner contends that the Georgia 

death penalty statute is being applied arbi- 

trarily and capriciously in violation of the 

Eighth and Fourteenth Amendments to the 

United States Constitution. He concedes 

at this level that the Eighth Amendment 

issue has been resolved adversely to him in 

this circuit. As a result, the petitioner 

wishes this court to hold that the applica- 

tion of a state death statute that permits 

the imposition of capital punishment to be 

based on factors of race of the defendant 

or race of the victim violates the equal 

protection clause of the Fourteenth Amend- 

ment. 

[1] It is clear beyond peradventure that 

the application of a statute, neutral on its 

580 FEDERAL SUPPLEMENT 

face, unevenly applied against minorities, is 

a violation of the equal protection clause of 

the Fourteenth Amendment. Yick Wo wv. 

Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 

L.Ed. 220 (1886). The more difficult ques- 

tion presented is why under the facts of 

this case the petitioner would be denied 

equal protection of the law if he is sen- 

tenced to death because of the race of his 

victim. This quandry has led the Eighth 

Circuit to find that a petitioner has no 

standing to raise this claim as a basis for 

invalidating his sentence. Britton v. Rog- 

ers, 631 F.2d 572, 577 n. 3 (8th Cir.1980), 

cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 

68 L.Ed.2d 327 (1981). 

While this circuit in Spinkellink v. 

Wainwright, 578 F.2d 582 (5th Cir.1978), 

reh’y denied, 441 U.S. 937, 99 S.Ct. 2064, 

60 L.Ed.2d 667, application for stay de- 

nied, 442 US. 1301, 99 S.Ct. 2091, 60 ; 

L.Ed.2d 649 (1979), seemed to give lip ser- 

vice to this same point of view by approv- 

ing the proposition that a district court 

“must conclude that the focus of any in- 

quiry into the application of the death pen- 

alty must necessarily be limited to the per- 

sons who receive it rather than their vic 

tims.” id. at 614 n. 39, the court in Spinkel- 

link also adopted the position that a peti- 

tioner such as McCleskey would have 

standing to sue in an equal protection con- 

text: 

Spinkellink [petitioner] has standing to 

raise the equal protection issue, even 

though he is not a member of the class 

allegedly discriminated against, because 

such discrimination, if proven, impinges 

on his constitutional right under the 

Eighth and Fourteenth Amendments not 

to be subjected to cruel and unusual pun- 

ishment. See Taylor v. Louisiana. su- 

pra. 419 U.S. [522] at 526 (95 S.Ct. 692 at 
695, 42 L.Ed.2d 690]. 

Id. at 612 n. 36. This footnote in Spinkel- 

link warrants close examination. In Tay- 

lor v. Louisiana, 419 U.S. 522, 95 S.Ct. 

692, 42 L.Ed.2d 690 (1975), the Supreme 

Court held that a male had standing to 

challenge a state statute providing that a 

woman should not be selected for jury ser- 

 



  

McCLESKEY v. ZANT 
Cite as $80 F.Supp. 338 (1984) 

vice unless she had previously filed a writ- 

ten declaration of her desire to be subject 

to jury service. The Court in Taylor cited 

"to Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 

2163, 33 L.Ed.2d 83 (1972), to conclude: 

“Taylor, in the case before us, was similar- 

ly entitled to tender and have adjudicated 

the claim that the exclusion of women from 

jury service deprived him of the kind of 

factfinder to which he was constitutionally 

entitled.” Id. at 526, 95 S.Ct. at 696. In 

Peters the Supreme Court rejected the con- 

tention that because a petitioner is not 

black, he has not suffered any unconstitu- 

tional discrimination. The rejection of the 

argument, however, was based not on 

equal protection grounds, but upon due 

process grounds. See 407 U.S. at 496-97, 

497 n. 5, 501, 504, 92 S.Ct. at 2165-66 n. 5 

2168, 2169: id. at 509, 92 S.Ct. at 217] 

(Burger, C.J., dissenting). 

"Thus, for Spinkellink to articulate an 

equal protection standing predicate based 

upon Sixth Amendment and due process 

cases can be characterized, at best, as curi- 

ous. Furthermore, not only does it appear 

that case law in this circuit subsequent to 

Spinkellink assumes that a contention 

similar to that advanced by petitioner here 

is cognizable under equal protection, see, 

e.g., Adams v. Wainwright, 709 F.2d 1443, 

1449-50 (11th Cir.), reh’g en banc. denied, 

716 F.2d 914 (11th Cir.1983); Smith v. 

Balkcom, 671 F.2d 858 (5th Cir.1982) (Unit 

B); but it appears that this circuit is apply- 

ing equal protection standards to Eighth 

Amendment challenges of the death penal- 

ty. See, eg. Adams v. Wainwright, su- 

pra. Accord, Harris v. Pulley, 692 F.2d 

1189, 1197-98 (9th Cir.1982), reversed and 

remanded on other grounds, — U.S. 

— 104 S.Ct. 871,79 L.Ed.2d 29 (1984). 

Indeed, in Spinkellink itself, the court 

adopted an analytical nexus between a cru- 

el and unusual punishment contention and 

a Fourteenth Amendment equal protection 

evidentiary showing: 

[This is not to say that federal courts 

should never concern themselves on fed- 

eral habeas corpus review with whether 

Section 921.141 [Florida's death penalty 

statute] is being applied in a racially 

347 

discriminatory fashion. If a petitioner 

can show some specific act or acts evi- 

dencing intentional or purposeful racial 

discrimination against him, see Village of 

Arlington Heights v. Metropolitan 

Housing Development Corp., 429 U.S. 

252 [97 S.Ct. 555, 50 L.Ed.2d 450] (1977), 

either because of his own race or the 

race of his victim, the federal district 

court should intervene and review sub- 

stantively the sentencing decision. 

Spinkellink, 578 F.2d at 614 n. 40. 

[2] Principles of stare decisis, of 

course, mandate the conclusion that peti- 

tioner has standing to bring forth his claim. 

Furthermore, under stare decisis, this 

court must strictly follow the strictures of 

Spinkellink and its progeny as to stan- 

dards of an evidentiary showing required 

by this petitioner to advance successfully 

his claim. 

[3] Were this court writing on a clean 

slate, it would hold that McCleskey would 

have standing under the due process clause 

of the Fourteenth Amendment, but not un- 

der the equal protection clause or the 

Eighth Amendment, to challenge his con- 

viction and sentenced if he could show that 

they were imposed on him on account of 

the race of his victim. From a study of 

equal protection jurisprudence, it becomes 

apparent that the norms that underlie 

equal protection involve two values: (i) the 

right to equal treatment is inherently good; 

and (ii) the right to treatment as an equal is 

inherently good. See L. Tribe, American 

Constitutional Law. § 16-1, at 992-93 

(1978). In this case, however, the evidence 

shows that the petitioner is being treated 

as any member of the majority would, or 

that petitioner's immutable characteristics 

have no bearing on his being treated differ 

ently from any member of the majority. 

Thus, with reference to his argument that 

he is being discriminated against on the 

basis of the race of his victim, equal protec- 

tion interests are not being implicated. 

[4,5] Petitioner also fails to state a 

claim under the Eighth Amendment. It is 

clear from the decisions of the Supreme 

 



  

348 

Court that the death penalty is not per se 

cruel and unusual in violation of the Eighth 

Amendment. Prior to Furman v. Georgia, 

408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 

(1972), the cruel and unusual punishments 

clause was interpreted as applicable to con- 

tentions that a punishment involved unnec- 

essary pain and suffering, that it was so 

unique as not to serve a humane purpose, 

or so excessive as not to serve a valid 

legislative purpose. See Furman, 408 U.S. 

at 330-33, 92 S.Ct. at 2772-74 (Marshall, J,, 

concurring). In other words, Eighth 

Amendment jurisprudence prior to Fur- 

man entailed an inquiry into the nexus 

between the offense and punishment; that 

punishment which was found to be exces- 

sive was deemed to violate Eighth Amend- 

ment concerns. The Supreme Court has 

determined as a matter of law that where 

certain aggravating features are present 

the infliction of the death penalty is not 

violative of the Eighth Amendment. Gregg 

v. Georgia, 428 U.S. 133, 96 S.Ct. 2909, 49 

L.Ed.2d 859 (1976). In the instant case, 

petitioner's race of the victim argument 

does not address traditional Eighth Amend- 

ment concerns. , His argument does not 

entail—nor could he seriously advance— 

any contention that his penalty is dispro- 

portionate to his offense, that his penalty 

constitutes cruel and unusual punishment, 

or that his penalty fails to serve any valid 

legislative interest. 

[6] What petitioner does contend is that 

the Georgia system allows for an impermis- 

sible value judgment by the actors within 

the system—that white*life is more valua- 

ble than black life—and, as a practical mat- 

ter, that the Georgia system allows for a 

double standard for sentencing. Certainly, 

such allegations raise life and Ifberty inter- 

ests of the petitioner. Furthermore, such 

allegations speak not to the rationality of 

the process but to the values inherent in 

the process. In other words, it is the integ- 

rity, propriety, or “fairness” of the process 

that is being questioned by petitioner's con- 

tention, and not the mechanics or structure 

of the process. Thus, petitioner's allega- 

tion of an impermissible process speaks 

most fundamentally to Fourteenth Amend- 

580 FEDERAL SUPPLEMENT 

ment due process interests, rather than 

Eighth Amendment interests that tradition- 

ally dealt with “cruel and unusual”. con- 

texts. 

For all its consequences, “due process” 

has never been, and perhaps can never 

be, precisely defined. “[Ulnlike some le- 

gal rules,” this Court has said, due pro- 

cess “is not a technical conception with a 

fixed content unrelated to time, place and 

circumstances.” Cafeteria Workers v. - 

McElroy, 367 U.S. 886, 895 [81 S.Ct. 

1743, 1748, 6 L.Ed.2d 1230]. Rather, the 

phrase expresses the requirement of 

“fundamentals fairness,” a requirement 

whose meaning can be as opaque as its 

importance is lofty. Applying the Due 

Process Clause is therefore an uncertain 

enterprise which must discover what 

“fundamental fairness” consists of in a 

particular situation by first considering 

any relevant precedents and then by as- 

sessing the several interests that are at 

stake. 

Lassiter v. Department of Social Services, 

452 U.S. 18, 24-25, 101 S.Ct. 2133, 2158- 

2159, 68 L.Ed.2d 640 (1981). It is clear that 

due process of law within the meaning of 

the Fourteenth Amendment mandates that 

the laws operate on all alike such that an 

individual is not subject to an arbitrary 

exercise of governmental power. See, c.g. 

Leeper v. Texas, 139 U.S. 462, 467-68, 11 

S.Ct. 577. 579-80, 35 L.Ed. 225 (1391); 

Hurtado v. California, 110 U.S. 516, 535- 

36, 4 S.Ct. 111,.120-21, 28 L.Ed. 232 (1384). 

As Justice Frankfurter observed in Rockin 

p. California. 342 U.S. 163, 72 S.Ct. 205, 96 

L.Ed. 183 (1952) (footnote omitted): 

Regard for the requirements of the Due 

Process Clause ‘“inescapably imposes 

upon this Court an exercise of judgment 

upon the whole course of the proceedings 

[resulting in a conviction] in order “to 

ascertain whether they offend those can- 

ons of decency and fairness which ex- 

press the notions of justice of English- 

speaking peoples even toward those 

charged with the most heinous of- 

fenses.” Malinski v. New York, supra, 

[324 U.S. 401] at 416-17 [65 S.Ct. 781 at 

 



  

McCLESKEY v. ZANT 349 
Clte as 580 F.Supp. 338 (1984) 

789, 89 L.Ed. 1029). The standards of 

justice are not authoritatively formulated 

anywhere as though they were specifics. 

Due process of law is a summarized con- 

stitutional guarantee of respect for those 

personal immunities which, as Mr. Jus- 

tice Cardozo twice wrote for the Court, 

are “so rooted in the traditions and con- 

science of our people as to be ranked as 

fundamental,” Snyder v. Massachusetts, 

291 U.S. 97, 105 [54 S.Ct. 330, 332, 78 

L.Ed. 674], or are “implicit in the concept 

of ordered liberty.” Palko wv. Connecti 

cut, 302 U.S. 319, 325758 S.Ct. 149, 152, 

82 L.Ed. 288]. 

See also Peters v. Kiff, 407 U.S. 493, 501, 

92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972) 

(“A fair trial in a fair tribunal is a basic 

requirement of due process.” (citing In 

Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 

623, 625, 99 L.Ed. 942 (1955). See gener- 

ally, L. Tribe, supra, § 10-7, at 501-06. 

In summary, the court concludes that the 

petitioner's allegation with respect to race 

of the victim more properly states a claim 

under the due process clause of the Four- 

teenth Amendment. The allegation is that 

the death penalty was imposed for a reason 

beyond that consented to by the governed 

and because of a value judgment which, 

though rational, is morally impermissibie in - 

As such, McCleskey could our society. 

fairly claim that he was being denied his 

life without due process of law. Although 

he couches his claims in terms of “arbi 

trarv and capricious,” he is, to the con- 

trary, contending not that the death penal- 

ty was imposed in his case arbitrarily or 

capriciously but on account of an intention- 

al application of an impermissible criterion. 

As the Supreme Court predicted In Gregg 

and as petitioner's evidence shows, the 

Georgia death penalty system is far from 

arbitrary or capricious. 

This court is not, however, writing on a 

clean slate. Instead, it is obliged to follow 

the interpretations of its circuit on such 

claims. As noted earlier Yick Wo gives 

McCleskey standing to attack his sentence 

on the basis that it was imposed on him 

because of his race and Spinkellink gives 

him standing under the equal protection 

clause to attack his sentence because it was 

imposed because of the race of his victim. 

McCleskey is entitled to the grant of a writ 

of habeas corpus if he establishes that he 

was singled out for the imposition of the 

death penalty by some specific act or acts 

evidencing an intent to discriminate against 

him on account of his race or the race of 

his victim. Smith v. Balkcom, 660 F.2d 

573 (5th Cir. Unit B 1981), modified in 

part, 671 F.2d 853 (1982); Spinkellink, 

supra. In Stephens v. Kemp, — Us. 

—, 104 S.Ct. 362, 78 L.Ed.2d 370 (1983), 

Justice Powell, in a dissent joined in by the 

Chief Justice and Justices Rehnquist and 

O'Connor, made the following statement 

with reference to the Baldus study: 

Although characterized by the judges of 

the court of appeals who dissented from 

the denial of the hearing en banc as a 

“particularized statistical study” claimed 

to show “intentional race discrimination,” 

no one has suggested that the study fo- 

cused on this case. A ‘‘particularized”’ 

showing would require—as I understand 

it—that there was intentional race dis- 

crimination in indicting, trying and con- 

victing Stephens and presumably in the 

state appellate and state collateral re- 

T'%yieW that several times follows the trial. 

Id. 104 S.Ct. at 564 n. 2 (Powell, J. dissent- 

ing). 

(7.8] The intentional discrimination 

which the law requires cannot generally be 

shown by statistics alone. Spencer v 

Zant, 715 F.2d 1562, 1531 (11th Cir.1983), 

reh'g en bane granted. 715 F.2d 1583 (11th 

Cir.1982). Disparate impact alone is insuf- 

ficient to establish a violation of the Four- 

teenth Amendment unless the evidence of 

disparate impact 1s so strony that the only 

permissible inference is one of intentional 

discrimination. Sullivan v. Wainwright, 

721 F.2d 316 (11th Cir.1983); Adams v. 

Wainwright, 709 F.2d 1443 (11th Cir.1983); 

Smith v. Balkcom, 671 F.2d 858, 839 (5th 

Cir. Unit B). cert. denied, 459 US. 882, 

103 S.CL. 181, 74 L.Ed.2d 148 (1982). 

 



  

350 

B. An Analytical Framework of Peti- 

tioner’s Statistical Evidence. 

~The petitioner does rely upon statistical 

evidence to support his contentions respect- 

ng the operation of racial discrimination on 

a statewide basis. He relies on statistical 

and anecdotal evidence to support his con- 

tentions that racial factors play a part in 

the application of the death penalty in Ful- 

ton County where he was sentenced. 

Statistical evidence, of course, is nothing 

but a form of" circumstantial evidence. 

Furthermore, it is said “that statistics are 

not irrefutable; they come in infinite varie- 

ty and, like any other kind of evidence, 

they may be rebutted. In short, their use- 

fulness depends on all of the surrounding 

facts and circumstances.” Teamsters v. 

United States, 431 U.S. 324, 340, 97 S.Ct. 

1843, 1857, 52 L.Ed.2d 396 (1977). 

[9] As courts have dealt with statistics 

in greater frequency, a body of common 

law has developed a set of statistical con- 

ventions which must be honored before sta- 

tistics will be admitted into evidence at all 

or before they are given much weight. 

These common law statistical conventions 

prevail even over the conventions generally 

accepted in the growing community of eco- 

nomotricians. The first convention which 

has universally been honored in death pen- 

alty cases is that any statistical analysis 

must reasonably account for racially neu- 

tral variables which could have produced 

the effect observed. See Smith v. Balk- 

com, supra; Spinkellink v. Wainwright, 

578 F.2d 582, 612-16 (5th Cir.1978), cert. 

denied. 440 U.S. 976, 99 S.Ct. 1548, 59 

L.Ed.2d 796 (1979); McCorquodale v. Balk- 

com, 705 F.2d 15353, 1556 (11th Cir.1983). 

[10] The second convention which ap- 

plies in challenges brought under the equal 

protection clause is that the statistical evi- 

dence must show the likelihood of diserimi- 

natory treatment by the decision-makers 

who made the judgments in question. Ad- 

ams v. Wainwright, supra; Maxwell v. 

Bishop, 398 F.2d 138 (8th Cir.1968) (Black- 

mun, J.), vacated on other grounds, 308 

580 FEDERAL SUPPLEMENT 

Sh Ce 
U.S. 262,.90 S.Ct. 1578, 26 L.Ed.2d 221 

(1970). - 

[11-13] The third general statistical 

convention is that the underlying data must 

be shown to be accurate. The fourth is 

that the results should be statistically sig- 

nificant. Generally, a statistical showing is 

considered significant if its “P” value is .05 

or less, indicating that the probability that 

the result could have occurred by chance is 

1 inh 20 or less. Said another way, the 

observed outcome should exceed the stan- 

dard error estimate by a factor of 2. East 

land v. TVA, 704 F.2d 613, 622 n. 12 (11th 

Cir.1983). 

[14] McCleskey relies primarily on a 

statistical technique known as multiple re- 

gression analysis to produce the statistical 

evidence offered in support of his conten- 

tions. This technique is relatively new to 

the law. This court has been able to locate 

only six appellate decisions where a party 

to the litigation relied upon multiple regres- 

sion analysis. In two of them, the party 

relying on the analysis prevailed, but in 

both cases their showings were supported 

by substantial anecdotal evidence. £E.g., 

Wade r. Mississippi Cooperative Exten- 

sion Service, 528 F.2d 508 (5th Cir.1976). 

In four of them, the party relying upon the 

technique was found to have failed in his 

attempt to prove something through a re- 

liance on it. Generally, the failure came 

when the party relying upon multiple re- 

gression analysis failed to honor conven- . 

tions which the courts insisted upon. Be- 

fore a court will find that something is 

established based on multiple regression 

analysis, it must first be shown that the 

model includes all of the major variables 

likely to have an effect on the dependent 

variable. Second, it must be shown that 

the unaccounted-for effects are randomly 

distributed throughout the universe and 

are not correlated with the independent 

variables included. Fastland, supra, at 

704. 

(15] In multiple regression analysis one 

builds a theoretical statistical model of re- 

ality and then attempts 10 control for all 

 



  

McCLESKEY v. ZANT 351 
Cite as 580 F.Supp. 338 (1984) 

possible independent variables while mea- 

suring the effect of the variable of interest 

upon the dependent variable. Thus, a prop- 

erly done study begins with a decent theo- 

retical idea of what variables are likely to 

be important. Said another way, the model 

must be built by someone who has some 

idea of how the decision-making process 

under challenge functions. Three kinds of 

evidence may be introducéd- to validate a 

regression model: (1) Direct testimony as 

to’ what factors are considered, (2) what 

kinds of factors generally operate in a deci- 

sion-making process like that under chal- 

lenge, and (3) expert testimony concerning 

what factors can be expected to influence 

the process under challenge. Eastland, 

supra, at 623 (quoting Baldus and Cole, 

Statistical Proof of Discrimination ). 

[16-18] Other cases have established 

other conventions for the use of multiple 

regression analysis. It will be rejected as 

a tool if it does not show the effect on 

people similarly situated; across-the-board 

disparities prove nothing. EEOC v. Feder- 

al Reserve Bank of Richmond, 698 F.2d 

633, 656-58 (4th Cir.1983), appeal pending; 

Valentino v. U.S. Postal Seryice, 674 F.2d 

56, 70 (D.C.Cir.1982). A regression model 

that ignores information central to under- 

standing the causal relationships at issue is 

insufficient to raise an inference of discrim- 

ination. Valentino, supra, at 71. Finally, 

the validity of the model depends upon a 

showing that it predicts the variations in 

the dependent variable to some substantial 

"degree. A model which expiains only 52 or 

53% of the variation is not very reliable. 

Wilkins v. University of Houston, 634 

F.2d 388, 405 (5th Cir.1981), cert. denied, 

459 U.S. 822, 103 S.Ct. 51, 74 L.Ed.2d 57 

(1982). 

(19] “To sum up, statistical evidence is 

circumstantial in character and its accepta- 

bility depends upon the magnitude of the 

disparity it reflects, the relevance of its 

supporting data, and other circumstances 

in the case supportive of or in rebuttal of a 

hypothesis of discrimination.” EEOC v. 

Federal Reserve Bank of Richmond, su- 

pra. at 646-47. Where a gross statistical 

disparity can be shown, that alone may 

constitute a prima facie case of discrimina- 

tion. This has become the analytical 

framework in cases brought under Title 

VII of the Civil Rights Act of 1964. Be- 

cause Fourteenth Amendment cases have a 

similar framework and because there are. 

relatively few such cases relying on statis 

tics, when appropriate the court may draw 

upon Title VII cases. Jean v. Nelson, 711 

F.2d 1455, 1486 n. 30 (11th Cir.), reh’g en 

banc granted, 714 F.2d 96 (1983). 

[20-23] Generally it is said that once 

the plaintiff has put on a prima facie statis- 

tical case, the burden shifts to the defend- 

ant to go forward with evidence showing 

either the existence of a legitimate non-dis- 

criminatory explanation for its actions or 

that the plaintiff's statistical proof is unac- 

ceptable. Joansen -v. Uncle Ben's, Inc, 

628 F.2d 419 (5th Cir.1980), cert. denied, 

459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 

(1982). The statistics relied upon by the 

plaintiff to establish a prima facie case can 

form the basis of the defendant's rebuttal 

case when, for example, the defendant 

shows that the numerical analysis is not 

the product of good statistical methodolo- 

gy. EEOC v. Datapoint Corp., 570 F.2d 

1264 (5th Cir.1978). Said another way, a 

prima facie case is not established until the 

plaintiff has demonstrated both that the 

data base is sufficiently accurate and that 

the regression model has been properly 

constructed. Otherwise, the evidence 

would be insufficient to survive a motion 

for directed verdict, and this is the sine 

qua non of a prima facie case. Jean, 

supra, at 1487. Statistics produced on a 

weak theoretical foundation are insuffi 

cient to establish a prima facie case. FEuast- 

land, supra, at 625. 

[24] Once a prima facie case is estab- 

lished the burden of production is shifted to 

the respondent. If it has not already be- 

come apparent from the plaintiff's presen- 

tation, it then becomes the defendant's bur- 

den to demonstrate that the plaintiff's sta- 

tistics are misleading, and such rebuttal 

may not be made by speculative theories. 

See Eastland, supra, at 618; Coble v. Hot 

 



  

352 

Springs School District, 682 F.2d 721, 

730-31 (8th Cir.1982); Jean v. Nelson, su- 

pra. 

C. Findings of Fact. 

The court held an evidentiary hearing for 

the purpose of enabling the petitioner to 

put on the evidence he had in support of his 

contention that racial factors are a consid- 

eration in the imposition of the death penal- 
ty.! Hereafter are the court’s findings as 

- to what was established within the context 

of the legal framework set out above. 

1. The Witnesses 

The principal witness called by the peti- 
tioner was Professor David C. Baldus. 
Professor Baldus is a 48-year-old Professor 

of Law at the University of lowa. Present- 

ly he is on leave from that post and is 
serving on the faculty of the University of 

Syracuse. Baldus's principal expertise is in 
the use of statistical evidence in law. He 

and a statistician, James Cole, authored a 

book entitled Statistical Proof of Discrim- 
ination that was published by McGraw- 

Hill in 1980. R 54-56. He has done sever- 
al pieces of social science research involv- 

ing legal issues and statistical proof. R 

45-46, 53. 

Before he became involved in projects: 

akin to that under analysis here, Baldus 

apparently had had little contact with the 

criminal justice system. In law school he 

took one course which focused heavily on 

the rationale of the law of homicide. R 39. 

During his short stint in private practice he 

handled some habeas corpus matters and 

had discussions with a friend who was an 

Assistant District Attorney concerning the 

kinds of factors which his friend utilized in 

deciding how to dispose of cases. R 43-44. 

As a part of the preparation of statistical 

proof of discrimination, Baldus and his co- 

author, Cole, re-evaluated the data set re- 

lied upon in Maxwell v. Bishop, 398 F.2d 

138 (8th Cir.1968), vacated on other 

1. A separate one-day hearing was had several 
months after the original hearing. The tran- 
script of those proceedings appears in Volume 

580 FEDERAL SUPPLEMENT 

‘grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 
L.Ed.2d 221 (1970), BR 72. 

Baldus became interested in methods of 

proportionality review and, together with 

four other scholars, published findings in 

the Stanford Law Review and the Journal 

of Criminal Law and Criminology. R 89. 

This was done on the basis of an analysis 

of some capital punishment data from Cali- 

fornia. R 81, et seq. Thereafter Baldus 

became a consultant to the National Center 
for State Courts and to the Supreme Court 
of South Dakota and the Supreme Court of 
Delaware. It is understood that his con- 

sulting work involved proportionality re- 

view. R 95. Baldus and Cole have aiso 
prepared an article for the Yale Law Jour- 
nal evaluating statistical studies of the 

death penalty to determine if it had a deter- 
rent effect. R 78. At the University of 
Jowa Baldus taught courses on scientific 
evidence, discrimination law, and capital 

punishment. 

a rape case. 

Baldus was qualified by the court as an 
expert on the legal and social interpretation 

of data, not on the issue of whether or not ~~" 

the statistical procedures were valid under 

the circumstances. While Baldus has some 

familiarity with statistical methodology, he 

was quick to defer to statistical experts 

where sophisticated questions of methodol 

ogy were posed. See generally R 109-20. 

Dr. George Woodworth was called by the 

petitioner and qualified as an expert in the 

theory and application of statistics and sta- 

tistical computation, especially with refer- 

ence to analysis of discreet outcome data. 

Dr. Woodworth is an Associate Professor 

of Statistics at the University of lowa and 

collaborated with Baldus on the prepara- 

tion of the study before the court. R 1193. 

The petitioner also called Dr. Richard A. 

Berk, a Professor of Sociology at the Uni- 

versity of California at Santa Barbara, and 

he was qualified as an expert in social 

science research with particular emphasis 

on the criminal justice system. R 1749-33. 

X of the transcript, and that testimony will 

hereafter be referred to with the prefix "X.” 

 



  

McCLESKEY v. ZANT 353 
Cite as 580 F.Supp. 338 (1984) : 

The respondents called two experts. 
.One was Dr. Joseph Katz, an Assistant 
Professor at Georgia State University in 

the Department of Quantitative Methods. 

He was qualified as an expert in analyzing 

data, in research design, in statistics, sta- 

tistical analysis and quantitative methods. 

R 1346. Dr. Katz is a rather recent gradu- 
ate of Louisiana State University. The re- 

spondent also called Roger L. Burford, a 
Professor of Quantitative Business Analy- 

sis at LSU. He was Katz's mentor at the 
graduate level. Burford was qualified as a 
statistical expert. R 1627-32. 

The court was impressed with the 

learning of all of the experts. Each pre- 
ferred .the findings and assumptions 
which supported his thesis, but it seemed 
to the court that mo ome of them was 

willing to disregard academic honesty to 

the extent of advancing a proposition for 

which there was absolutely mo support. 

2. Scope of the Studies 

Baldus and Woodworth conducted two 
studies on the criminal justice system In 

Georgia as it deals with homicide and mur- 

der cases. The first is referred to as the 

Procedural Reform Study. The second is 

referred to as the Charging and Sentencing 
Study. R 121-122. 

The universe for the Procedural Reform 
Study included all persons convicted of 
murder at a guilt trial. Also included were 

several offenders who pled guilty to mur- 

der and received the death penalty. The 

time period for the study included offend- 

ers who were convicted under the new 

Georgia death penalty statute which went 

into effect on March 28, 1973, and included 

all such offenders who had been arrested 

as of June 30, 1978. In the Procedural 

Reform Study no sample of the cases was 

taken and instead the entire universe was 

studied. R 170-71. The data sources used 

by the researchers in the Procedural Re- 

form Study were the files of the Georgia 

Supreme Court, certain information from 

the Department of Offender Rehabilitation, 

and information from the Georgia Depart- 

ment of Vital Statistics. R 173, et seq. 

Except for the few pleas, the Procedural 

Reform Study focused only on offenders 
who had been convicted of murder at a 

trial. R 122. There were approximately 

550 cases in the universe for the Procedur- 

al Reform Study. 

The Procedural Reform Study began 
when Baldus developed a questionnaire and 

dispatched two students to Georgia in the 

fall of 1979. In 1980 the coders returned 

to Georgia and coded 264 cases on site. R 

241-43, DB 28, DB 28A. As two different 

questionnaires were used, the researchers 

wrote a computer program which translat- 

ed the data gathered from both question- 

naires into one format. R 246. 

Baldus made some preliminary studies 
on the data that he gathered in the Proce- 
dural Reform Study. He found in these 

preliminary analyses no “race of the de- 
fendant” effect and a very unclear “race of 

the victim” effect. R 258. The Legal De- 

fense Fund learned of Baldus's research 

and retained him to conduct the second 

study. R 256. Baldus was of the opinion 

that it was critical to the validity of the 

study that the strength of the evidence be 

measured. R 262. Also, he felt it impor- 
tant to examine the combined effects of all 

the decisions made at the different levels of 

the criminal justice system. R 147. Ac: 
cordingly, the design of the Charging and 

Sentencing Study was different in that it 
produced measurements in these two re- 

spects in addition to measuring factors akin 

to those which were already being taken 

into account in the Procedural Reform Stu- 

dy. 

The universe for the Charging and Sen- 

tencing Study was all offenders who were 

convicted of murder or voluntary man- 

slaughter whose crimes occurred after 

March 28, 1973 and whose arrests occurred 

before December 21, 1978. This produced 

a universe of about 2500 defendants. R 

123, 263-64. Any defendant who was ac- 

quitted or convicted of a lesser-included 

offense is not included in the study. R 264. 

From the universe of the Charging and 

Sentencing Study a random stratified sam- 

ple was drawn. The first stratification was 

 



  

354 

by outcome. - Thei researchers drew a 25% 
random sample of murder cases with life 

sentences and a 25% random sample of 

voluntary manslaughter cases. R 1216. 

To this sample, all death penalty cases 

were added. R 267-69. The second strati- 

fication was geographic. The researchers 

drew a sample of 18 cases from each judi- 

cial circuit in Georgia. Where the circuit 

did not produce 18 cases in the first draw, 

additional cases were drawn from the popu- 

lation to supplement the original random 

sample. The results from each judicial cir- 

cuit were then weighted so that each circuit 

contributed to the total effect in proportion 

to the total number of cases it contributed 

to the universe. R 270. 

Because of the many factors involved 

in such an analysis, a simple binomial 

comparison would show nothing. To de- 

termine whether or not race was being 

considered, it 1s necessary to compare 

very similar cases. This suggests the use 

of a statistical technique known as cross 

tabulation. Because of the data availa- 

ble, it was impossible to get any statisti 

cally significant results in comparing ex- 

act cases using a cross tabulation meth- 

od. R 705. Accordingly, the study prin- 

cipally relies upon multivariate analysis. 

3. The Accuracy of the Data Base 

As will be noted hereafter, no statistical 

analysis, much less a multivariate analysis, 

is any better than the accuracy of the data 

base. That accuracy was the subject of 

much testimony during the hearing. To 

understand the issue it is necessary Lo ex- 

amine the nature of the questionnaires uti 

lized and the procedures employed to enter 

the data upon the questionnaires. 

The original questionnaire for the Proce- 

dural Reform Study was approximately 120 

pages long and had foils (blanks) for the 

entry of data on about 300 variables. DB 

27. The first 14 pages of the questionnaire 

were filled out by the Georgia Department 

of Offender Rehabilitation for Professor 

Baldus. The remainder of the pages were 

coded by students in Iowa based on ex- 

580 FEDERAL SUPPLEMENT 

tracts prepared by data gatherers in Geor- 

gia. 

The data on the first 15 pages of the 

Procedural Reform Study questionnaire in- 

cludes information on sentencing, basic de- 

mographic data concerning the defendant, 

his physical and psychiatric condition, his 

1Q, his prior record, as well as information 

concerning his behavior as an inmate. The 

next six pages of the questionnaire con- 

tained inquiries concerning the method of 

killing. Data is also gathered on the num- 

ber of victims killed, information about co- 

perpetrators, and the disposition of their 

cases, and pleadings by the defendant. 

Another eight pages of questions search 

out characteristics of the offense. Three 

pages are reserved for data on’ contempora-- 

neous offenses, and another three pages 

for the victim's role in the crime and the 

defendant's behavior after the homicide. 

There are additional pages on the role of 

co-perpetrators. There are more questions 

relating to the defense at trial and on the 

kinds of evidence submitted by the defend 

ant. Then, there are 26 pages of questions 

concerning the deliberations of the jury and 

information concerning the penalty trial. 

The questionnaire concludes on matters re- 

lating to the disposition of the case with 

respect to other counts charged and, final 

ly, the last page is reserved for the coder 

to provide a narrative summary of what 

occurred in the case. R 197-200, DB 27. 

This questionnaire also contained foils so 

that the coder could indicate whether or not 

the prosecutor or the jury was aware of the 

information being coded. 

It is important to reiterate that this ques- 

tionnaire was not coded by students having 

access to the raw data in Georgia. In- 

stead, as noted above, two law students 

prepared detailed abstracts of each case. 

Their notes were dictated and transcribed. 

These notes, together with an abstract 

filled out by an administrative aide to the 

Georgia Supreme Court and the opinion of 

the Georgia Supreme Court, were assem- 

bled as a file and were available in Towa to 

the coders. R 209, 212, 24]. 

 



  

McCLESKEY v. ZANT 355 
Cite as 580 F.Supp. 338 (1984) 

During the 1979-80 academic year, an- 

other questionnaire, simpler in form, was 

designed for use in obtaining data for the 

Procedural Reform Study. This question 

“naire dropped the inquiries concerning 

whether the sentencing jury was aware of 

the aggravating and mitigating factors ap- 

pearing in the files. R 230-31. Some of 

the questionnaires were coded in Georgia 

and some were coded in Iowa. Baldus 

developed a coding protocol in an effort to 

guide those who were entering data on the 

questionnaires. R 220-21, 227. The pro- 

fessional staff at the University of Iowa 

Computer Center entered the data obtained 

from the various Procedural Reform Study 

questionnaires into the computer. 

Yet another questionnaire was designed 

for the Charging and Sentencing Study. 

The last questionnaire was modified in 

three respects. First, Baldus included ad- 

ditional queries concerning legitimate ag- 

gravating and mitigating factors because 

he had determined on the basis of his expe- 

rience with earlier data that it was neces- 

sary to do so. Second, the questionnaire 

expanded the coverage of materials relat- 

ing to prior record. Third, it contained a 

significant section on “strength of the evi- 

dence.” R 274-77. After the new draft 

was produced and reviewed by several oth- 

er academicians, it was reviewed by attor- 

neys with the Legal Defense Fund. They 

suggested the addition of at least one other 

variable. R 275. 

The Charging and Sentencing Study 

questionnaire is 42 pages long and has 595 

foils for the recordation of factors which 

might, in Baldus’s opinion, affect the out- 

come of the case. Generally, the kind of 

information sought included the location of 

the offense, the details of all of the charges 

brought against the offender, the outcome 

of the case, whether or not there was a 

plea bargain, characteristics of the defend- 

ant, prior record of the defendant, informa- 

tion regarding contemporaneous offenses, 

details concerning every victim in the case, 

characteristics of the offense, statutory ag- 

gravating factors, a delineation of the de- 

fendant's role vis-a-vis co-perpetrators’, in- 

formation on outcome of co-perpetrators’ 

cases, other aggravating circumstances 

such as the number of shots fired, miscella- 

neous mitigating circumstances relating to 

the defendant or the victim, the defend- 

ant’s defenses at the guilt trial, and the 

strength of the evidence. R 280-36. 

Again, all of these were categories of infor- 

mation which Baldus believed could affect 

the outcome of a given case. 

A student who headed a portion of the 

data-gathering effort for the first study 

was placed in charge of five law students 

who were hired and trained to code the new 

questionnaires. R 308. This supervisor's 

name was Ed Gates. 

The principal data source for the Charg- 

ing and Sentencing study was records of 

the Georgia Department of Pardons and 

Paroles. This was supplemented with in- 

formation from the Bureau of Vital Statis- 

tics and questionnaires returned from law- 

vers and prosecutors. Also, some informa- 

tion was taken from the Department of 

Offender Rehabilitation. R 293-94, DB 39. 

The records from the Department of Par- 

dons and Paroles included a. summary of 

the police investigative report prepared by 

a parole officer, an FBI rap sheet, a per- 

sonal history evaluation, an admissions 

data summary sheet, and, on occasion, the 

file might contain a witness statement or 

the actual police report. R 347. The police 

report actually appeared in about 25° of 

the cases. R 348. The Pardons and Pa- 

roles Board investigative summaries were 

always done after conviction. 

Baldus and Gates again developed a writ- 

ten protocol in an attempt to assist coders 

in resolving ambiguities. This protocol 

was developed in part on past experience 

and in part on a case-by-case basis. R 239, 

311. In the Charging and Sentencing Stu- 

dy the coders were given two general rules 

to resolve ambiguities of fact. The first 

rule was that the ambiguity ought to be 

resolved in a direction that supports the 

determination of the factfinder. The sec- 

ond rule is that when the record concerning 

a fact is ambiguous the interpretation 

 



  

356 

should support the legitimacy of the sen- 

tence. R 423, EG 4. 

As to each foil the coder had four 

choices. The response could be coded as 1, 

showing that the factor was definitely 

present, or 2, which means that the file 

indicated the presence of the factor. If the 

factor was definitely not present, the foil 

was left blank. In cases where it was 

considered equally possible for the factor 

to be absent or present, the coder entered 

the letter “U.” R 517. For the purpose of 

making these coding decisions, it was as- 

sumed that if the file indicated that a wit- 

ness who ‘would likely have seen the infor- 

mation was present or if, in the case of 

physical evidence, it was of the type that 

the police would likely have been able to 

view, and if such information did not ap- 

pear in the Parole Board summaries, then 

the coder treated. that factor as not being 

present. R 521. ° 

In addition to coding questionnaires the 

coders were asked to prepare brief summa- 

ries that were intended to highlight parts 

of the crime that were difficult to code. R 

366. 

By the end of the summer of 1981 the 

questionnaires had been coded in Georgia 

and they were returned to Iowa. R 585. 

All of the data collected had to be entered 

onto a magnetic tape, and this process was 

completed by the Laboratory for Political 

Research at the University of Iowa. R 

595. That laboratory ‘‘cleaned” the data as 

it was keypunched; that is, where an im- 

permissible code showed up in a question 

naire it was reviewed by a student coder 

who re-coded the questionnaire based upon 

a reading of Baldus's file. R 600-08. 

After the data gathered for the Charging 

and Sentencing Study was entered on com- 

puter tapes, it was re-coded so that the 

data would be in a useful format for the 

planned analysis. The first step of the 

re-coding of the data was to change all 1 

and 2 codes to 1, indicating that the factor 

was positively present. The procedure 

then re-coded all other responses as 0, 

meaning that the characteristic was not 

present. R 617-20. 

580 FEDERAL SUPPLEMENT 

It appears to the court that the research- 

ers attempted to be careful in that data- 

gathering, but, as will be pointed out here- 

after, the final data base was far from 

perfect. An important limitation placed on 

the data base was the fact that the ques- 

tionnaire could not capture every nuance of 

every case. R 239. 

Because of design of earlier question- 

naires, the coders were limited to only 

three special precipitating events. There 

were other questions where there were 

limitations upon responses, and so the full 

degree of the aggravating or mitigating 

nature of the circumstances were not cap- 

tured. In these situations where there was 

only a limited number of foils, the respons- 

es were coded in the order in which the 

student discovered them, and, as a conse- 

quence, those entered were not necessarily 

the most important items found with re- 

spect to the variable. R 545. The pres- 

ence or absence of enumerated factors 

were noted without making any judgment 

as to whether the factor was indeed miti- 

gating or aggravating in the context of the 

case. R 384. 

In the Charging and Sentencing Study as 

well, there were instances where there was 

a limit on the number of applicable respons- 

es which could be entered. For example, 

on the variable “Method of Killing,” only 

three foils were provided. R 461, EG 6A, 

p. 14. The effect of this would be to re- 

duce the aggravation of a case that had 

multiple methods of inflicting death. In 

coding this variable the students generally 

would list the method that actually caused 

the death and would not list any other 

contributing assaultive behavior. R 463. 

The information available to the coders 

from the Parole Board files was very sum- 

mary in many respects. For example, on 

one of the completed questionnaires the 

coder had information that the defendant 

had told four other people about the mur- 

der. The coder could not, however, deter- 

mine from the information in the file 

whether the defendant was bragging about 

the murder or expressing remorse. R 467- 

63. As the witnesses to his statements 

 



  

‘however, cap 

McCLESKEY v. ZANT 357 
Clte as 580 F.Supp. 338 (1984) 

were available to the prosecution and, pre- 

sumably, to the jury, that information was 

knowable 207. DEhay'¥ known. It was not, 

) the study. The Pa- 
role Board summaries themselves were 
brief and the police reports from which the 

parole officers prepared their reports were 

typically only two or three pages long. R 

1343. 

Because of the incompleteness of the Pa- 

role Board studies, the Charging and Sen- 
tencing Study. contains no information 
about what a prosecutor felt about the 

credibility of any witnesses. R 1117. It 
was occasionally difficult to determine 

whether or not a co-perpetrator testified in 
the case. One of the important strength of 
the evidence variables coded was whether 

or not the police report indicated clear 

guilt. As the police reports were missing 

in 75% of the cases, the coders treated the 

Parole Board summary as a police report. 
R 493-94. Then, the coders were able to 
obtain information based only upon their 
impressions of the information contained in 

the file. R 349. 

Some of the questionnaires were clearly 

mis-coded. Because of the degree of lati- 
tude allowed the coders in drawing infer- 
ences based on the data of the file, a re- 

coding of the same case by the same coder 

at a time subsequent might produce a dif- 

ferent coding. R 370, 386-387. Also, there 
would be differences in judgment among 

the coders. R 387. 

Several questionnaires, including the one 

for McCleskey and for one of his co-perpe- 

trators, was reviewed at length during the 

hearing. There were inconsistencies in the 

way several variables were coded for 

McCleskey and his co-perpetrator. R 1113; 

Res. 1, Res. 2. 

The same difficulties with accuracy and 

consistency of coding appeared in the 

Charging and Sentencing questionnaires. 

For example, the Charging and Sentencing 

Study had a question as to whether or not 

the defendant actively resisted or avoided 

arrest. MecCleskey’'s questionnaire for the 

Charging and Sentencing Study indicated 

that he did not actively resist or avoid 

-tencing outcome. 

arrest. His questionnaire for the Proce- 

dural Reform Study indicated that he did. 
R 1129-30; Res. 2, Res. 4. Further, as 

noted above in one situation where it was 

undoubtedly knowable as to whether or not 

the defendant expressed remorse or 
bragged about the homicide, the factor was 

coded as “U.” Under the protocol referred 

to earlier, if there was a witness present 

who could have known the answer and the 
answer did not appear in the file, then the 

foil is to be left blank. This indicates that 
the questionnaire, EG 6B, was not coded 

according to the protocol at foils 183 and 

184. 

To test the consistency of coding judg- 
ments made by the students, Katz tested 
the consistency of coding of the same fac- 

tor in the same case as between the two 

studies as to 30 or so variables. 
were 361 cases which appeared in both 

studies. Of the variables that Katz select- 
ed there were mis-matches in coding in all 

but two of the variables. Some of the 
mis-matches were significant and occurred 

within factors which are generally thought 

to be important in a determination of sen- 

For example, there were 

mis-matches in 50% of the cases tested as 

to the number of death eligible factors 

occurring in the case. Other important 

factors and the percent of mis-matches are 

as follows: 

Number of prior felonies 337 

Immediate Rage Motive 15% 

Execution Style Murder 18 
Unnecessary Killing 8 
Defendant Additional Crimes 16: 
Bloody 2% 

Defendant Drug History 25" 

Victim Aroused Fear in the Defendant 16’ 

Two or More Victims in All 20’ 

Vietim is a Stranger 12 

Respondent's Exhibit 20A, R 1440, ef seq. 

A problem alluded to above is the way 

the researchers chose to deal with those 

variables coded “U.” It will be recalled 

that for a variable to be coded “U” in a 

given questionnaire, there must be suffi 

cient circumstances in the file to suggest 

the possibility that it is present and to 

preclude the possibility that it is not 

There . 

 



  

358 ” 580 FEDERAL SUPPLEMENT 

present. In the Charging and Sentencing Sper ack Alochei of'D = 

Study there are an average of 33 variables elonlen evan Bf Luss : 

in each questionnaire which are coded as Effect of Alcohol on the Defendant 290 

“J.” The researchers treated that infor- Defendant Showed Remorse 213 

mation as not known to the decision-maker. Defendant Surrendered within 24 Hours 125 
-o ; 

Victim Used Drugs or Alcohol Before 244 

R 1155. Under the protocol employed, the Homicide 

decision to treat the “U” factors as not Effect of Drugs on Victim 168 

being present in a given case seems highly Victim Aroused Defendant's Fear for 220 

: a Life 

questionable. The threshold criteria for as- Vietim Armed with Deadly Weapon 155 

suming that a factor was not present were History of Bad Blood Between 173 

extremely low. A matter would not have Defendant and Vietim 

been coded “U” unless there was some- Vis Segue Defendant of . Mg 

. « . v 
Misconduct 

thing in the file which made the coder Victim Physically Assaulted Defendant 159 

believe that the factor could be present. at Homicide 

Accordingly, if the researchers wished to Victim Verbally Threatened Defendant 185 
at Homicide 

preserve the data and not drop the cases Victim Verbally Abused Defendant at 300 

containing this unknown information, then Homicide 

it would seem that the more rational deci- Victim Verbally Threatened Defendant 100 

. “Tr Earlier 

Sion would be to treat the U” factors as Victim Verbally Abused Defendant 156 

being present. Earlier 

This coding decision pervades the data Victim Had Bad Criminal Reputation 855 

base. Well more than 100 variables had Viekish ad Criming) Resort #6 = 

some significant number of entries coded 

“UJ.” Those variables coded “U” in more 

than ten percent of the questionnaires are 

_as follows (the sample size in the Charging 

and Sentencing Study is 1,084): 

Plea Bargaining 445 

Employment Status of the Defendant 107 

Victim's Age 189 

Occupational Status of the Victim 721 

Employment Status of the Vietim 744 

Defendant's Motive was Long-Term 284 

Hate 

Defendant's Motive was Revenge 2022 

Defendant's Motive was Jealousy 130 

Defendant's Motive was Immediate 181 

Rage ; 

Defendant's Motive was Raciul 447 

Animosity 

Dispute While under the Influence of 15% 

Aleohol or Drugs 

Victim Mental Defective 625 

Victim Pregnant 214 

Victim Defenseless due to Disparity in 8 

Size or Numbers 

Victim Support Children 71 

Vietim Offered No Provocation 192 

Homicide Planned for More than Five 496 

Minutes 

Execution-Style Homicide 109 

Victim Pleaded for Life TU 

Defendant Showed No Remorse for 902 

Homicide 

Defendant Expressed Pleasure With 8R5 

Homicide 

Defendant Created Risk of Death to 12% 

A large number of other variables were 

coded “U” in more than five percent of the 

questionnaires. Race of the victim was 

unknown in 62 cases. Other variables 

which are often thought to explain sentenc- 

ing outcomes and which were coded “U” in 

more than five percent of the question 

naires included: 

Defendant's Motive was Sex 68 

Defendant's Motive Silence Witness for 72 

Current Crime 

Dispute with Vietim/ Defendant over 76 

Money/ Property 

Lovers’ Triangle 74 

Vietim Defenseless due to Old Age 63 

Defendant Actively Resisted Arrest 1 

Number of Victims Killed by the 66 

Defendant 

Defendant Cooperated with Authorities 72 

Defendant had History of Druy and 79 

Alcohol Abuse 

Victim Physically Injured Defendant at 63 

Homicide 

Vietim Physically Assaulted Defendant 71 

Earlier 

Many of the variables showing high rates 

of “U” codings were used in Baldus’s mod- 

els. For example, in Exhibit DB 83, models 

controlling for 13, 14 and 44 variables, re- 

spectively, are used in an effort to measure 

racial disparities. In the 13-variable model, 

five of the variables have substantial num- 

bers of “U’" codes. In the 14-variable mod- 

 



  

McCLESKEY v. ZANT 359 
Cite as 580 F.Supp. 338 (1984) 

el, seven variables are likewise affected, 

and in the 44-variable model, six were af- 

fected. Similar problems plagued the Pro- 
cedural Reform Study Respondent's Ex- 
hibits 17A, 18A; DB 96A, DB 83, R 1429. 

Because of the substantial number of 

“U” codes in the data base and the decision 
to treat that factor as not present in the 

case, Woodworth re-coded the “U” data so 

that the coding would support the outcome 

of the case and ran a worst case analysis 

on five small models. This had the effect 
generally of depressing the coefficients of 
racial disparity by as much as 25%. In the 

three models which controlled for a rela- 

tively small number of background varia- 

bles, he also re-computed the standard devi- 
ation based on his worst case analysis. In 

the two larger models on which he ran 

these studies, he did not compute the stan- 

dard deviation, and in the largest model he 

did not even compute the racial coefficients 

after conducting the worst case analysis. 

Accordingly, it is impossible for the court 

to determine if the coefficient for race of 

the victim remains present or is statistical- 

ly significant in these larger order regres- 

sions. Both because of this and because 
the models used in the validating procedure 
were not themselves validated, it cannot be 

said that the coding decision on the “U” 

data made no effect on the results ob- 

tained. See generally GW 4, Table 1. 

In DB 122 and 123 Baldus conducts a 

worst case analysis which shows the re- 

sults upon re-coding “U” data so as to 

legitimize the sentence. Baldus testified 

that the coding of unknowns would not 

affect the outcome of his analysis based on 

the experiments and these exhibits. The 

experiments do not, however, support his 
conclusion, and it would appear to the court 

that the experiments were not designed to 

support his conclusions. In DB 122 Baldus 
controls for only three variables; thence, it 

is impossible to measure the effect of any 

other variables or the effects that the re- 

coding would have on the outcome. In DB 

123 he utilizes a 39-variable model and con- 

cludes that on the basis of the re-coding it 

has no effect on the racial coefficients. 

Only five of the variables in the 39-variable 

model have any substantial coding prob- 

lems associated with them. (For these pur- 

poses the court is defining a “substantial 

problem” as a variable with more than 100 
entries coded “U.”) These five variables 

are the presence of a statutory aggravat- 

ing factor B3 and B7D, hate, jealousy, and 

a composite of family, lover, liquor, or bar- 

room quarrel. Baldus did not test any of 

his larger regressions to see what the ef- 
fect would be. R 1701, et seq, DB 964A, 

Schedule 4, DB 122, DB 123, Res. Exh. 

47A. 

In addition to the questionable handling 
of the “U” codes, there were other factors 
which might affect the outcome of the stu- 

dy where information was simply unknown 

or unused. In the Charging and Sentenc- 

ing Study data related with the response 

“Other” was not used in subsequent analy- 

ses. In one factor, “special aggravating 
feature of the offense,” there were 139 

“Other” responses. R 1392, 1437. 

Cases where the race of the victim was 

unknown were coded on the principle of 
imputation, as though the race of the vic- 

tim was the same as the race of the defend- 

ant. .R 1096. 

There were 23 or 24 cases in the Proce- 

dural Reform Study and 62 or 63 cases in 

the Charging and Sentencing Study where 

the researchers did not know whether or 

not a penalty trial had been held. R 1522. 
Baldus, on the basis of the rate at which 

penalty trials were occurring in his other 

cases, predicted what proportion of these 

that probably proceeded to a penalty trial. 

The criteria for deciding precisely which of 

these cases proceeded to a penalty trial and 

which did not is unknown to the court. R 

1101. It is not beyond possibility that the 

treatment of these 62 cases could have 

skewed the results. The data becomes im- 

portant in modeling the prosecutorial deci 

sions to seek a death sentence after there 

had been a conviction. Based on his sam- 

ple Baldus projects that something over 
760 murder convictions occurred. If the 62 

cases were proportionally weighted by a 

factor of 2.3 (2484 cases In the universe 

 



  

360 

divided by 1084 cases in the sample equals 

2.3), the effect would be the same as if he 

were missing data on 143 cases. Said an- 
other way, he would be missing data on 

about 18 to 20% of all of the decisions he 
was seeking to study. See generally R 

1119. 

The study was also missing any informa- 

tion on race of the victim where there were 

multiple victims. R 1146-47. Further, 

Baldus was without information on wheth- 
er or not the prosecutor offered a plea 
bargain in" 40% of the cases. R 1152. One 

of the strength of the evidence questions 
related to whether or not there was a credi- 

bility problem with a witness. Such infor- 
mation was available only in a handful of 

files. R 532-33. Further, the data would 
not include anything on anyone who was 

convicted of murder and received proba- 

tion. R 186. 

Multiple regression requires complete 

correct data to be utilized. If the data is 

not correct the results can be faulty and 

not reliable. R 1505-06. Katz urged that 
the most accepted convention in dealing 

with unknowns is to drop the observations 

from the analysis. R 1501-04. Berk 

opined that missing data seldom makes any 

difference unless it is missing at the order 
of magnitude of 30 to 45%. R 1766. This 

opinion by Berk rests in part upon his 

understanding that the missing data, 

whether coded “U” or truly missing, was 

unknowable to the decision-maker. In the 

vast majority of cases this is simply not the 

case. 

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 ques- 

tionnaire 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 deci- 

580 FEDERAL SUPPLEMENT 

sion made by prosecutors to advance cases 

to a penalty trial in a significant number of 

instances. The court’s purpose here is not 

to reiterate the deficiencies but to mention 

several of its concerns. It is a major prem- 

ise 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 un- 

trustworthy. 

4. Accuracy of the Models 

In a system where there are many fac 

tors which affect outcomes, an unadjusted 

binomial analysis cannot explain relation- 

ships. According to Baldus, no expert 

opinion of racial effects can rest upon 

unadjusted figures. R 731. In attempting 

to measure the effect of a variable of inter- 

est, Baldus testified that if a particularly 
important background variable is not con- 

trolled for, the coefficient for the variable 

of interest does not present a whole pic- 

ture. Instead, one must control for the 

background effects of a variety of factors 

at once. One must, Baldus testified, identi- 

fy the important factors in the system and 

control for them. R 694-95. Baldus also 

testified that a study which does not focus 

on individual stages in the process and does 

not control for very many background fac- 

tors is limited in its power to support an 

inference of discrimination. R 146-47. Be- 

cause he realized the necessity of control 

ling for all important background varia- 

bles, he read extensively, consulted with 

peers, and from these efforts and from his 

prior analysis of data sets from California 

and Arkansas, he sought in his question- 

naires to obtain information on every varia- 

ble he believed would bear on the matter of 

death-worthiness of an individual defend- 

ant’s case. His goal was to create a data 

set that would allow him to control for all 

of those background factors. R 194-95, 

739. At this point it is important to empha- 

size a difference between the Procedural 

Reform Study and the Charging and Sen- 

tencing Study. The Procedural Reform 

Study contains no measures for strength of 

the evidence. Because Baldus was of the 

opinion that this could be a factor in wheth- 

 



  

McCLESKEY v. ZANT 361 
Clte as 580 F.Supp. 338 (1984) 

. er or not capital punishment was imposed, 

information regarding the strength of the 

evidence was collected in the Charging and 

Sentencing Study. R 124, 286. 

Baldus collected data on over 500 factors 

in each case. From the 500 variables he 

decided to select 230 for inclusion in fur- 

ther statistical analysis. R 659. He testi- 

fied without further explanation that these 
230 variables were the ones that he would 

expect to explain who received death sen- 

tences and who did not. R 661. X 631. 

" - Based on this testimony it follows that any 
model which does not include the 230 varia- 
bles may very possibly not present a whole 

picture. : 

The 230 variable-model has several defi- 

ciencies. It assumes that all of the infor- 
mation available to the data-gatherers was 

available to each decision-maker in the sys- 

tem at the time that decisions were made. 

R 1122. This is a questionable assumption. 
To the extent that the records of the Parole 

Board accurately reflect the circumstances 

of each case, they present a retrospective 

view of the facts and circumstances. That 

is to say, they reflect a view of the case 

after all investigation is completed, after 
.all pretrial preparation is made, after all 

“evidentiary rulings have been handed 
down, after each witness has testified, and 

after the defendant's defense or mitigation 
is aired. Anyone who has ever tried a 

lawsuit would testify that it is seldom and 

rare when at progressive stages of the case 

he knows as much as he knows by hind- 

sight. Further, the file does not reflect 

what was known to the jury but only what 

was known to the police. Legal literature 

is rife with illustrations of information 

known reliably to the parties which they 

never manage to get to the factfinders. 

Consequently, the court feels that any mod- 

el produced from the data base available is 
substantially flawed because it does not 

measure decisions based on the knowledge 

available to the decision-maker. 

Beyond that defect, there are other rea- 

sons to distrust the 230-variable model or 

any of the others proposed by Baldus. 

Statisticians have a method for measuring 

what portion of the variance in the depend- 

ent variable (here death sentencing rate) is 

accounted for by the independent variables 

included in the model. This measure is 
known as an adjusted r>. The r?® values for 
a model which is perfectly predictive of 
changes in the dependent variable would 
have a value of 1.0. The r? values for the 
models utilized by Woodworth to check the 
validity of his statistical techniques range 

from .15 to .39. The r* for the 230-variable 
model is between .46 and .48. The differ- 
ence between the r? value and 1 may be 
explained by one of two hypotheses. The 

- first is that the other unaccounted-for fac- 

tors at work in the system are totally ran- 

dom or unique features of individual cases 
that cannot be accounted for in any system- - 

atic way. The other ‘theory is that the 
model does not model the system. R 1266- 

69, GW 4, Table 1. As will appear hereaf- 
ter, neither Baldus nor Woodworth believes 
that the system is random. 

In summary, the r® measure is an indicia 

of how successful one has been with one’s 
mode! in predicting the actual outcome of 

cases. R 1489. As the 230-variable model 

does, not predict the outcome in half of the 
“cases and none of the other models produc- 
ed by the petitioner has an r* even ap- 

proaching .5, the court is of the opinion 

that none of the models are sufficiently 

predictive to support an inference of dis- 

crimination. 

The regression equation, discussed in 
greater detail hereafter, postulates that the 

value of the dependent variable in a"given 

case is the sum of the coefficients of all of 

the independent variables plus “U.” In the 

equation the term “U” refers to all unique 

characteristics of an individual case that 

have not been controiled for on a system- 

wide basis. X 51-52. If the model is not 
appropriately inclusive of all of the system- 

atic factors, then the “U” value will contain 

random influences as well as systematic 

influences. X 90. The r* value is a sum- 

mary statistic which describes collectively 

all of the “U” terms. 

Sometimes it is said that “U” measures 

random effects. Woodworth testified that 

 



  

362 

randomness does not necessarily reflect ar- 

bitrariness. He continued, “The world re- 

ally isn’t random. When we say something 

is random, we simply mean it’s unaccounta- 

ble, and that whatever does account for it 

is unique to each case.... This random- 

ness that we use is a tag that phenomena 

which are unpredictable on the basis of 

variables we have observed [sic].” R 1272- 

73. By implication this means that even in 

the 230-variable model it is unique circum: 

stances or uncontrolled-for variables which 

preponderate over the controlled-for vana- 

bles in explaining death sentencing rates. : 

This is but another way of saying that the 

models presented are insufficiently pre- 

dictive to support an inference of diserimi- 

nation. 

None of the models presented have ac- 

counted for the alternative hypethesis that 

the race effects Observed cannot be ex- 

plained by unaccounted-for factors. This is 

further: illustrated -by an experiment that ; 

Katz conducted. He observed that when 

he controlled only for whether or not there 

had been a murder indictment and tried to 

predict the outcome based solely on the 

race of the victim, he obtained a regression 

coefficient of .07 which was statistically 

significant at the .00000000000000000005 

level. He further observed that by the 

time Baldus had controlled for 230 varia- 

bles, the “P” value or test of statistical 

significance was only approximately 02. 

He stated as his opinion that the positive 

value of the race of the victim coefficient 

would not disappear because it was a con- 

venient variable for the equation to use in 

explaining actual outcome where so many 

cases in the sample were white victim 

cases. It was his opinion, however, that 

2. The teaching of this chart has a universal 

lesson for courts. That lesson is that where: 

there is a multitude of factors influencing the 

decision-maker, a court cannot rely upon tests 

of statistical significance to validate the data 

unless it is first shown that the statistical model 

is sufficiently predictive. -_ 

3. Woodworth commented on this opinion of 

Katz's. He testified that it was his observation 

that after about ten variables were added to the 

model, the precipitous drop in levels of statisti- 

cal significance leveled out, and, therefore, he 

580 FEDERAL SUPPLEMENT 

the race of the victim coefficient would 

become statistically insignificant with a 

model with a higher r> which better ac- 

counted for all of the non-racial variables 

including interaction variables and compos- 

ite variables which could be utilized. R 

1563-70. This methodical decline in statis- 

tical significance of the race of the victim 

and race of the defendant effects as more 

variables are controlled for is demonstrated 

graphically in Table 1 which is attached to 

the opinion as Appendix A.2 There, it will 

be observed. that if an additional 20 back- 

ground variables are added beyond the 230- 

variable model and the data is adjusted to 

show the effect on death sentencing rates 

of appellate review, both the size of the 

coefficient for race of the victim and race 

of the defendant decreases by one-third, 

and the statistical significance decreases 

to .04 and .05, respectively.5™" 2 

Based on the evidence the court is unable 

to find either way with respect to Katz's 

hypothesis. From the evidence offered in 

support and in contradiction of the hypoth- 

esis, the court does learn one thing: It was 

said that one indication of the completeness 

of a model is when one can find no addi 

tional variables to add which would affect 

the results obtained. The work by Katz 

and Woodworth shows instability in the 

findings of the small order models utilized 

in the study, and, therefore, it is further 

evidence that they are not sufficiently de- 

* signed so as to be reliable. See generally 

R 1729, Table 1, GW 6, Res. Exh. 24. 

Based on all the foregoing, the court 

finds that none of the models utilized by 

the petitioner's experts are sufficiently 

predictive to support an inference of dis- 

crimination. 

was of the opinion that it would require the 

addition of an enormous number of variables to 

make the coefficient insignificant. He had no 

opinion as to whether the addition of a number 

of variables would inevitably remove the effect. 

In fact, however, the trend line on GW 6 for 

statistical significance does not remain flat, 

even in Woodworth's studies. From the 10 to 

20-variable modeis to the 230-variable models, 

the “P” value declines from something just un- 

der .00003 to something just over .005. 

 



  

McCLESKEY v. ZANT 363 
Cite as 580 F.Supp. 338 (1984) 

- 
5. Multi-Colinearity. 

As illustrated in Table 1, the petitioner 

introduced a number of exhibits which re- 

flected a positive coefficient for the race of 

the victim and race of the defendant. The 

respondent has raised the question of 

whether or not those coefficients are in 

fact measuring racial disparities or wheth- 

er the racial variables are serving as prox- 

ies for other permissible factors. Stated 

another way, the respondent contends that 

the Baldus ‘research cannot support an in- 

ference of discrimination because of multi 

colinearity. ‘ 

If the variables in an analysis are correl- 

ated with one another, this is called multi- 

colinearity. Where this exists the coeffi- 

cients are difficult to interpret. R 1166. A 

regression coefficient should measure the 

impact of a particular independent variable, 

and it may do so if the other variables are 

totally uncorrelated and are independent of 

each other. If, however, there is any de- 

gree of interrelationship among the varia- 

bles, the regression coefficients are some- 

what distorted by that relationship and do 

not measure exactly the net impact of the 

independent variable of interest upon the 

dependent variable. Where multi- colineari- 

ty obtains, the results should be viewed 

with great caution. - “wt 

In the Charging and Sn en 

very substantial proportion of the variables 

are correlated to the race of the victim and 

to the death sentencing result. R 1141-42. 

All or a big proportion of the major non- 

statutory aggravating factors and statuto- 

“ry aggravating factors show positive cor- 

relation with both the death sentencing re- 

salt and the race of the victim. R 114Z. 

More than 100 variables show statistically 

significant relationships with both death 

sentencing results and the race of the vie: 

tim. R 1142. Because of this it is not 

possible to say with precision what, if any, 

effect the racial variables have on the de- 

pendent variable. R 1148, 1649. Accord- 

ing to Baldus, tests of statistical signifi- 

4. Katz utilized Baldus's characterization of fac- 

tors as to whether they were aggravating or 

cance will not always detect errors in coef- 

ficients produced by multi-colinearity. R 

1138, DB 92. 

Katz conducted experiments which fur- 

ther demonstrated the truth of an observa- 

tion which Baldus made: white-victim cases 

tend to be more aggravated while black-vic- 

tim cases tend to be more mitigated. Us- 

ing the data base of the Procedural Reform 

Study, Katz conducted an analysis on 196 

white-vietim cases and 70 black-victim 

cases which had in common the presence of 

the statutory aggravating factor B2.! Fac- 

tor by factor, he determined whether white- 

victim cases or black-victim cases had the 

higher incidence of each aggravating and 

mitigating factor. The experiment showed 

that there were 25 aggravating circum- 

stances which appeared at a statistically 

significant higher proportion in cases in- 

volving one racial group than they did in 

the other. Of these 25 aggravating cir- 

cumstances, 23 of these occurred in white 

vietim cases and only 2 occurred in black- 

victim cases. Likewise with mitigating fac- 

tors it was determined that 12 mitigating 

factors appeared in a higher proportion of 

black-victim cases whereas only one miti- 

gating feature appeared in a higher propor 

tion of white-victim cases. The results of 

this latter analysis were also statistically 

significant. R 1472, et seq. Res.Exh. 28. 

Similar or more dramatic results were ob- 

tained when the experiment was repeated 

with statutory factors Bl, 3, 4, 7, 9 and 10. 

Res Exh. 29-34; R 1477-80. 

As he had done with the data from the 

Procedural Reform Study, Katz conducted 

an analysis to discover the relative pres- 

ence or absence of aggravating or mitigat- 

ing circumstances in white- and black-vic- 

tim cases, using the Charging and Sentenc- 

ing Study data. Only aggravating or miti- 

gating circumstances shown to be signifi- 

cant at the .05 level wore utilized. Un- 

known responses were not considered. 

With but slight exception, each aggravat- 

ing factor was present in a markedly high- 
EEN 

mitigating. 

 



  

364 

er percentage of white-victim cases than in 

black-victim cases, and conversely, the vast 

majority of the mitigating circumstances 

appeared in higher proportions in black-vic- 

tim cases. Res.Exh. 49, 50, R 1534-35. 

Similar observations were made with refer- 

ence to cases disposed of by conviction of 

voluntary manslaughter. Res.Exh. 51, 52, 

R 1336. 

Yet another experiment was conducted 

by Katz. He compared the death sentenc- 

ing rates for killers of white and black 

victims at Steps progressing upwards from 

the presence of no statutory aggravating 

circumstances to the presence of six such 

circumstances. At the level where there 

were three or four statutory aggravating 

circumstances present, a statistically sig- 

nificant race of the victim effect appeared. 

He then compared the aggravating and mi- 

tigating circumstances within each group 

and in each instance found on a factor-by- 

factor basis that there was a higher num- 

ber of aggravating circumstances which oc- 

curred in higher proportions in white-vietim 

cases and a number of mitigating factors 

occurred in higher proportions in biack-vic- 

tim cases. The results were statistically 

significant. Res.Exh. 36, 37, R 1482. 

All of the experts except Berk seemed to 

agree that there was substantial multi-coli- * 

nearity in the data. Berk found rather 

little multi-colinearity. R 1736. Wood- 

worth observed that multi-colinearity has 

the effect of increasing the standard devia- 

tion of the regression coefficients, and he 

observed that this would reduce the statis- 

tical significance. According to Wood- 

worth the net effect of multi-colinearity 

would be to dampen the effect of observed 

racial variables. R 1279-82, He also testi- 

fied that he had assured himself of no 

effect from multi-colinearity because they 

were able to measure the disparities be- 

tween white-victim and black-victim cases 

at similar levels of aggravation. For these 

two reasons Woodworth had the opinion 

that higher levels of aggravation in white- 

victim cases were not relevant to any issue. 

R 1297. 

580 FEDERAL SUPPLEMENT 

The court cannot agree with Wood- 

worth's assessment. He and Baldus seem 

to be at odds about whether tests of statis- 

tical significance will reveal and protect 

against results produced by multi-colineari- 

ty. His second point is also unconvincing. 

He contends that because he can measure a 

difference between the death sentencing 

rate in white-victim cases and black-victim 

cases at the same level of aggravation (and 

presumably mitigation), then the positive 

regression coefficients for this variable are 

not being produced by multi-colinearity. If 

Woodworth’s major premise were correct; 

his conclusion might be tenable. The ma- 

jor premise is that he is comparing cases 

with similar levels of aggravation and miti- 

gation. He is not. As will be discussed 

hereafter, he is merely comparing cases 

which have similar aggravation indices 

based on the variables included in the mod- 

el. None of Woodworth's models on which 

he performed his diagnostics are large or- 

der regression analyses. Accordingly, they 

do not account for a majority either of 

aggravating or mitigating circumstances in 

the cases. Therefore, in the white-victim 

cases there are unaccounted-for systematic 

aggravating features, and in the black-vie- 

tim cases there are unaccounted-for sys- 

tematic mitigating features. As will be 

seen hereafter, aggravating factors do in- 

crease the death penalty rate and mitigat- 

ing factors do decreasg the death penalty 

rate. Therefore~at Toust se the extent that 

there are unaccounted-for aggravating or - 

mitigating circumstances,  white-vietim 

cases become a proxy for aggravated 

cases, and black-victim cases become a 

proxy, or composite variable, for mitigating 

factors. 

The presence of multi-colinearity sub- 

stantially diminishes the weight to be ac~ 

corded to the circumstantial statistical 

evidence of racial disparity. 

6. Petitioner's Best Case and Other 

Observations. 

Based on what has been said to this 

point, the court would find that the peti- 

tioner has failed to make out a prima 

 



  

McCLESKEY v. ZANT 365 
Cite as 580 F.Supp. 338 (1984) 

facie case of discrimination based either 

on race of the victim or race of the de- 

fendant disparity. There are many rea- 

sons, the three most important of which 

are that the data base is substantially 

flawed, that even the largest models are 

not sufficiently predictive, and that the 

analyses do not compare like cases. The 

case should be at an end here, but for the 

sake of completeness, further findings are 

in order. In this section the statistical 

showings based on the petitioner's most 

complete model will be set out, together 

with other observations about the death 

penalty system as it operates in the State 

of Georgia. 

‘Woodworth testified, “No, the system is 

definitely not purely random. This system 

very definitely sorts people out into catego- . 

ries on rational grounds. And those differ- 

ent categories receive death at different 

rates.” R 1277. An analysis of factors 

identified by Baldus as aggravating and 

mitigating, when adjusted to delete un- 

system when measured against case out 

come. Virtually without exception, the 

presence of aggravating factors increases 

as the outcome moves from voluntary man- 

slaughter to life sentence to death sen- 

tence. Conversely, factors identified By 

Baldus as being mitigating decrease in 

presence in cases as the outcome moves 

from voluntary manslaughter to life sen- 

tence to death sentence. R 1532. Res. 

Exh. 48. 

These observations. other testimony by 

all of the erperts, and the court Ss oun 

analysis of the data put to rest in this 

court's mind any notion that the imposi- 

tion of the death penalty in Georgia is a 

random event unguided by rational 

thought. The central question is whether 

any of the rationales for the imposing or 

not imposing of the death penalty are 

based on impermissible factors such as 

race of the defendant or race of the victim. 

In Baldus’s opinion, based on his entire 

study, there are systematic and substantial 

disparities existing in the penalties imposed 

upon homicide defendants in the State of 

Georgia based on race of the homicide vic- 

tim. Further, he was of the opinion that 

disparities in death sentencing rates do ex- 

ist based on the race of the defendant, but 

they are not as substantial and not as 

systematic as is the case with the race of - 

the victim effect. He was also of the opin- 

ion that both of these factors were at work 

in Fulton County. R 726-29. The court 

does not share Dr. Baldus’s opinion to 

the extent that it expresses a belief that 

either of these racial considerations de- 

termines who receives the death penalty 

and who does not. : 

Petitioner's experts repeatedly testified 

that they had added confidence in their 

opinions because of “triangulation.” That 

is; they <onducted a number of different 

statistical studies and they all produced the 

same results. R 1081-82. This basis for 

the opinion is insubstantial for two reasons. 

First, many tests showed an absence of a 

race of the defendant effect or an absence 

of a statistically significant race of the 

: : =~. ., defendant effect or a statistically insignifi- 

known values, gives a picture of a-rational - 
cant modest race of the defendant effect 

running against white defendants. As will 

be seen below, the race of the victim effect 

observed, while more persistent, did not 

always appear at a statistically significant 

level in every analysis. Second, Baldus’s 

confidence is predicated upon a navigation- 

al concept, triangulation, which presumes 

that the several bearings being taken are 

- accurate. The lore of the Caribbean basin 

is rich with tales of island communities 

supporting themselves from the booty of 

ships which have foundered after taking: 

bearings on navigational aids which have 

been mischievously rearranged by the is- 

landers. If one is going to navigate by 

triangulation, one needs to have confidence 

in the bearings that are being shot. As 

discussed earlier, Baldus is taking his bear- 

ings off of many models, none of which are 

adequately inclusive to predict outcomes 

with any regularity. 

Baldus has testified that his 230-vanable 

model contains those factors which might 

best explain how the death penalty is im- 

posed. The court, therefore, views results 

produced by that model as the most reliable 

 



  

366 

evidence presented by the petitioner. Addi- 
tionally, in some tables Baldus employed a 
250-variable model which adjusted for 

death sentencing rates after appellate re- 
view by Georgia courts. The race of the 

victim and race of the defendant effects, 
together with the “P” values, are shown in 
the table below. 

TABLE 2 

RACIAL EFFECTS TAKING INTO ACCOUNT ALL 
DECISIONS IN THE SYSTEM - LARGE 

SCALE REGRESSIONS 
Weighted Least Squares Regression Results 
  

Coefficients and Level of Statistical Significance 

230 Variable Model 

  

  

  
  

Race of the Victim Race of Defendant 

06 .06 

(.02) (.02) 

~ 250 Variable Model 

After Adjustment for Georgia Appellate Review 
  

  

Race of the Vietim Race of Defendant 

04 04 

(.04) (.05) 

  
  

In viewing Table 2, it is important to 
keep in mind that it purports to measure 
the net effect of the racial variables on all 

decisions made in the system from indict- 

ment forward. It shows nothing about the 

effect of the racial variables on the prose- 

cutor’s decision to advance a case to a 

penalty trial and nothing about the effect 
of the racial variables on the jury and its 

decision to impose the death penalty. 

At this point it is instructive to know 
how Dr. Baldus interpreted his own find- 

ings on the racial variables. He says that 

the impact of the racial variable is small. 

R 831. The chances that anybody is going 

to receive a death sentence is going to 

depend on what the other aggravating and 

mitigating circumstances are in the case. 

R 828. At another point Baldus testified 

that: 

(t]he race of the victim in this system is 

clearly not the determinant of what hap- 

pened, but rather that it is a factor like a 
number of other factors, that it plays a 

role and influences decision making. 

The one thing that’s, that struck me 

from working with these data for some 
time, there is no one factor that deter- 

580 FEDERAL SUPPLEMENT 

mines what happens in the system. If 

there were, you cotld make highly accu- 
rate predictions of what's going to hap- 

pen. This is a system that is highly 

discretionary, highly complex, many fac- 

tors are at work in influencing choice, 

and no one factor dominates the system. 

It’s the result of a combination of many 

different factors that produce the results 

that we see, each factor contributing 

more or less influence. 

R 813. And at another point Dr. Baldus 
interpreted his data as follows: 

The central message that comes through 
is the race effects are concentrated in 

categories of cases where theres an ele- 

vated risk of a death sentence. There's 

no suggestion in this research that there 

is a uniform, institutional bias that ad- 

versely affects defendants in white vie- 
tim cases in all circumstances, or a black 

defendant in all cases. There's nothing 

to support that conclusion. It's a very 

complicated system. 

R 842. 

Because of these observations, the testi- 

mony of other witnesses, and the court's 

own analysis of the data, it agrees that 

any racial variable is not determinant of _. 

who is going to receive the death penalty,” 
and, further, the court agrees that there 

1s mo support for a proposition that race 

has any effect in any single case. 

An exhibit, DB 95, is produced in part in 

Table 3 below. It is perhaps the most 

significant table in the Baldus study. This 

table measures the race of the victim and 

the race of the defendant effect in the 

prosecutorial decision to seek the death 

sentence and in the jury sentencing dect- 

sion to impose the death sentence. This is 

one of the few exhibits prepared by Baldus 

which utilizes data both from the Procedur- 

al Reform Study and the Charging and 

Sentencing Study. The first column shows 

the racial effects after controlling for 23 

variables in the Charging and Sentencing 

Study and 200 variables in the Procedural 

Reform Study. 

 



  

McCLESKEY v. ZANT 367 
Cite as 580 F.Supp. 338 (1984) 

TABLE 3 

REGRESSION COEFFICIENTS (WITH THE LEVEL OF STATISTICAL 

SIGNIFICANCE IN PARENTHESES) FOR RACIAL VARIABLES IN 

ANALYSES OR PROSECUTORIAL DECISIONS TO SEEK AND JURY 

DECISIONS TO IMPOSE CAPITAL PUNISHMENT 

L Prosecutor Decision to Seek a Death Sen- 

tence 

A. Race of Victim 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

B. Race of Defendant 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

11. Jury Sentencing Decisions ! 

A. Race of Victim 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

B. Race of Defendant 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

  

! Unweighted data used. 

Controlling for All Factors in File 

(230 variables in Charging & Sen- 

tencing Study; 200 variables in 

Procedural Reform Study) 
  

  
  

Regardless of If Statistically 

Statistical Significant at 

Significant 10 Level 

be + 18 

(.06) (.0001) 

12 13 

(.01) (.0001) 

.09 14 

(.42) (.002) 

01 .03 

(.96) (.41) 

2 05 
(.37) 

06 
(.42) 

-.04 

(.42) 

-.02 
(.75) 

2 Simuitaneous adjustment for all factors in the files was not possible because of the limited 

number of penalty trial decisions. (From DB 95). 
2 ve ® lt rm 

PEN 

The coefficients produced by the 230- 

variable model on the Charging and Sen- 

tencing Study data base produce no statisti 

cally significant race of the victim effect 

either in the prosecutor's decision to seek 

the death penalty or in the jury sentencing 

decision. A 200-variable model based on 

the Procedural Reform data base shows a 

statistically significant race of the victim 

effect at work on the prosecutor's decision- 

making, but that model is totally invalid for 

it contains no variable for strength of the 

evidence, a factor which has universally 

been accepted as one which plays a large 

part in influencing decisions by prosecu- 

tors. Neither model produces a statistical- 

ly significant race of the defendant effect 

at the level where the prosecutor i§ trying 

to decide if the case should be advanced to 

a penalty trial. Neither model produces 

any evidence that race of the vietim or race 

of the defendant has any statistically sig- 

 



  

368 

nificant effect on the jury’s decision to 

impose the death penalty. The significance 

of this table cannot be overlooked. The 

death penalty cannot be imposed unless the 

prosecutor asks for a penalty trial and the 

jury imposes it. The best models which 

Baldus was able to devise which account 

to any significant degree for the major 

non-racial variables, including strength 

of the evidence, produce no statistically 

significant - evidence _thgt pace plays a 

part in either of those dtisions in the 
State of Georgia.’ 

  

The same computations were repeated 

using only factors which were statistically 

significant at the .10 level® The court 

knows of no statistical convention which 

would permit a researcher arbitrarily to 

exclude factors on the basis of artificial 

criteria which experience and other re- 

search have indicated have some influence 

on the decisions at issue. The fact that a 

variable may not be statistically significant 

is more likely a reflection of the fact that it 

does not occur often, and not any sort of 

determination that when it does occur it 

lacks effect. Accordingly, the second mod- 

el, set out in Table 3, does not meet the 

criterion of having been validated by some- 

one knowledgeable about the inner work- 

ings of the decision-making process. 

The results in the second column are 

reproduced here because they demonstrate 

some other properties of the research. It 

is noted first that the race of the victim 

effect is lower in the Procedural Reform 

Study than in the Charging and Sentencing 

Study. As the Procedural Reform Study 

represents a universe of all cases and the 

Charging and Sentencing Study is a ran- 

dom sample, one possible explanation for 

the disparity in magnitude might be that 

the sampling techniques utilized in the 

Charging and Sentencing Study somehow 

overestimated the coefficients. Another in- 

5. As an aside, the court should think that this 

table should put to rest the sort of stereotypical 

prejudice against Southern jurisdictions typified 

in the petitioner's brief by reliance on evidence 

in the Congressional Record in the 1870's con- 

cerning the existence of a disregard by Southern 

officials for the value of black life. 

580 FEDERAL SUPPLEMENT 

teresting observation from this study is 

that even when the data is artificially mani- 

pulated, no statistically significant race of 

the victim or race of the defendant effect 

appears at the jury decision level. Last, 

this table demonstrates a property of the 

analyses throughout regarding race of the 

defendant. To the extent that race of the 

defendant appears as a factor, it sometimes 

appears as a bias against white defendants 

and sometimes appears as a bias against 

black defendants; very often, whatever 

bias appears is not statistically significant. 

Finally, this table is an illustration of a 

point which the court made earlier. At the 

beginning, in assessing the credibility of 

the witnesses, the court noticed that all 

seemed to have something of a partisan 

bias. Thereafter, it noted that the results 

of certain diagnostics respecting the worst : 

case analysis in Woodworth’s work were 

not reported in the exhibits given the court. 

Here, in this table, we are given no out 

comes based on the larger scaled regres- 

sions for the racial variables at the jury 

sentencing level. It is said that the data 

was not provided because it was not possi- 

ble to conduct simultaneous adjustment for 

all factors in the file because of the limited 

number of penalty trial decisions. From all 

that the court has learned about the meth- 

ods employed, it does not understand that 

the analysis was impossible, but instead 

understands that because of the small num- 

bers the results produced may not have 

been statistically significant. 

The figures on racial disparities in prose- 

cutorial and jury decision-making do not 

reflect the effects of racial disparities that 

might have resulted in earlier phases of the 

system. R 933. A stepwise regression anal- 

ysis of the statewide data in the Charging 

and Sentencing Study was done in an effort 

to measure the race of the victim and race 

of the defendant effects at different stages 

6. The regression coefficient of an'independent 

variable would be the same regardless of wheth- 

er it was a rare event or a frequent event. X 33. 

 



  

McCLESKEY v. ZANT 
Cite as 580 F.Supp. 338 (1984) 

of the procedure from indictment through 

the imposition of the death penalty.” This 
regression analysis suggested that there is 
an increased willingness by prosecutors to 

accept pleas to voluntary manslaughter if 

the race of the victim is black. R 1062-68, 

DB 117. This suggests a possibility that 

the racial effects observed in Table 2 may 

be the result of bias at a plea bargaining 

stage. This is not established by the evi- 
dence, and it is immaterial to this case, for 
Baldus did not believe that McCleskey’s 
case would have had any likelihood of -be- 

ing disposed of on a voluntary manslaugh- 

ter plea. R 1064-65. Baldus noted that 

":. there were strong effects with respect to 

both race of the defendant and race of the 

victim at the plea bargaining level. R 

1040. It is to be remembered that on this 

point his data base was far from complete. 

Finally, it is noted that this study did not 
attempt to discern if any of the racial dis- 
parities noted at the plea bargaining stages 

could be explained by any of the current 

theories on the factors governing plea bar- 

gaining. R 1139-63. 

7. What a Multivariate Regression 

Can Prove 

Before one can begin to utilize the re- 

sults of the Baldus study, whether from 

the larger order regressions or from the 
small models, an understanding of the tech- 

niques employed is necessary. Such an 

understanding produced in the court's mind 
other qualifiers which at least in this case 

substantially diminish the weight of the 
evidence produced. 

Regression analysis is a computational 

procedure that describes how the average 

outcome in a process, here the death sen- 

tencing rate, is related to particular charac- 

7. Stepwise regression is a process carried out by 
a computer which selects the background varia- 
bles sequentially based on which provides the 
best fit. It makes no judgment as to whether or 
not the variables it selects might in reality have 
anything to do with the decision. Any model 
produced by stepwise regression would not 
mect the legal statistical conventions discussed 
earlier in that the model is not validated by a 
person who is by experience or learning ac- 
quainted with how the process actually works. 

  

teristics of the cases in the system. A 

least squares regression coefficient dis- 

plays the average difference in the death 

penalty rate across all cases caused by the 

independent variable of interest. In a re- 

gression procedure one may theoretically 

measure the impact of one variable of in- 

terest while “controlling” for other inde- 

pendent variables. Conceptually, the coef- 

ficient of the variable of interest is the 

numerical difference in death sentencing 

rates between all cases which have the 
variablé of interest and all cases which do 

not. R 689, et seq., 1222-23. The chief 

assumption of a weighted least square re- 

gression is that the effect of the variable of 

interest is consistent across all cases. 

Woodworth testified that that assumption 

was not altogether warranted in this case.’ 

That the variable of interest, here race of 

the victim, is not the same against all cases 

is graphically seen in a preliminary cross 

tabulation done by Baldus. In this experi- 

ment, cases which were similar in that they 

had a few aggravating and mitigating fac- 

tors in common were grouped into four 
subgroups. The race of the victim dispari- 
ty ranged from a low of .01 through .04 
to .15 and finally to .25. The weighted 

least squares regression coefficient for 

these same cases was .09. R 781, DB 76, 

DB 77. 

Statistical significance is another term 

which the court and the parties used regu- 

larly. This term connotes a test for rival 

hypotheses. There is a possibility that an 

effect could be present purely by chance, 

or by the chance combination of bad luck in 

drawing a sample, or by chance combina- 

tion of events in the charging and sentenc- 

ing process that may produce an accidental 

disparity which is not systematic. Statisti- 

8. McCleskey was offered a life sentence in re- 
turn for a guilty plea. (Sce State Habeas Tran- 
script, Testimony of Turner). 

9. He testified, however, that the data was inter- 

pretable because he convinced himself that the 
violations of the assumption were not in them- 

selves responsibie for the findings of significant 
racial effects. R 1223-24, 1228. 

 



  

370 

cal significance computes the probability 

that such a disparity could have arisen by 

chance, and, therefore, it tests the rival 

hypothesis that chance accounts for the 

results that were obtained. R 1244-45. 

Tests of statistical significance are a meas- 
ure of the amount by which the coefficient 

exceeds the known standard deviation in 
the variable, taking into account the size of 

the sample. Considering the values used in 
this study, a statistical significance at 

the .05 level translates into a two-standard 

deviation disparity, and a statistical signifi- 
cance at the .01 level approaches a three- 
standard deviation level. R 1246-47. R 
712-17. As noted earlier a low “P” value, 
a measure of statistical significance, does 

not, at least in the case of multi-variate 

analysis, assure that the effect observed by 
any one model is in fact real. 

The use of regression analysis is subject 
to abuse. Close correlations do not always 

say anything about causation. Further, 2a 

regression analysis is no better than the 

data that went into the analysis. It is 

possible to obtain a regression equation 

which shows a good statistical fit in the 
sense of both low “P” values and high r? 
values where one has a large number of 

variables, even when it is known in advance 

that the data are totally unrelated to each 

other. R 1636-37. 

What the regression procedure does by 

algebraic adjustment is somewhat compa- 

rable to a cross tabulation analysis. It 

breaks down the cases into different sub- 

categories which are regarded as having 

characteristics in common. The variable of 

interest is calculated for each sub-category 

and averaged across all sub-categories. R 

791-92. 

The model tries to explain the dependent 
variable by the independent variables that 

it is given. It does this by trying to make 

the predicted outcome the same as the ac 

tual outcome in terms of the factors that it 

is given. R 1487-88. For example, if a 

regression equation were given ten inde- 

pendent variables in a stagewise process, it 

would guess at the regression coefficient 

for the first variable by measuring the 

580 FEDERAL SUPPLEMENT 

incremental change in the dependent varia- 
ble caused by the addition of cases contain- 

ing a subsequent independent variable. X 

29. After the initial mathematical compu- 

tation, the equation then goes back and 

re-computes the coefficients it arrived at 

earlier, using all of the subsequent regres- 

sion coefficients that it has calculated. It 

continues to go through that process until 
coefficients which best predict actual out- 
come are arrived at for each variable. X 

43-46. 

By its nature, then, the regression equa- 
tion can produce endless series of self-ful- 
filling * prophecies because it always at- 

tempts to explain actual outcomes based on 

whatever variables it is given. If, for ex- 
ample, the data base included information 

that of the 128 defendants who received. 

the death penalty, 122 of them were right- 
handed, the regression equation would 
show that the system discriminated against 
right-handed people. This is so because 
that factor occurs so often that it is the 

most “obvious” or “easy” explanation for 

the outcomes observed. In the case at bar, 

there are 108 white-victim cases where 

death was imposed and 20 black-victim 
cases where death was imposed. DB 63. 
Accordingly, the regression coefficients for 

the racial variables could have been artifi- 

cially produced because of the high incr 

dence of cases in.whach the victim was 

whitel™ Torys 
Another feature of Baldus’s analyses is 

that he is trying to explain dichotomous 

outcomes (life or death) with largely dicho- 

tomous independent variables (multiple 

stabbing present or not present) and a re- 

gression equation requires continuous de- 

pendent and independent variables. Ac- 

cordingly, Baldus developed indices for the 

dependent variable (whether or not the 

death penalty was imposed). He utilized 

an average rate for a group of cases. For 

the independent variables he developed an 
artificial measure of similarity called an 

aggravation index to control simuitaneous- 

ly for aggravating and mitigating circum- 

stances so that cases could be ranked on a 

continuous scale. R 1484. It is important 

 



  

McCLESKEY v. ZANT 371 
Cite as 580 F.Supp. 338 (1984) 

to understand that the cases being com- 

pared in the regression analyses used here 

are not at all factually similar. Their prin- 

cipal identity is that their aggravation in- 

dex, the total of all positive regression co- 

efficients minus all negative regression 

coefficients, is similar. X 14-15. The 

whole study rests on the presumption that 

cases with similar aggravation indexes are 

similarly situated. R 1311. This presump- 

tion is not only rebuttable, it is rebutted, if 

by nothing else, then by common sense. 

As Justice Holmes observed in Towne v. 

Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 

372 (1918): 

A word is not a crystal, transparent and 

unchanged, it is the skin of a living 

thought and may vary greatly in color 

and content according to the circum- 

stances and the time in which it is used. 

Id. at 425, 38 S.Ct. at 159, quoting Lamar 

v. United States, 240 U.S. 60, 63, 36 S.Ct. 

255, 256, 60 L.Ed. 526 (1916). The same 

thought, it seems to the court, is apropos 

for the aggravation index. It allows a case 

with compelling aggravating circumstanc- 

. .es, offset only by a series of insignificant 

mitigating circumstances, to be counted as 

equal to a case with the same level of 

aggravation and one substantial mitigating 

factor having the same numerical value as 

the series of trifling ones in the first case. 

The court understands that strength of the 

evidence measures generally are positive 

coefficients. To the extent that this is 

true, a strong evidentiary case with weak 

aggravating circumstances would be con- 

sidered the same as a brutal murder with 

very weak evidence. Other examples 

abound, but the point is that there is no 

logical basis for the assumption that cases 

with similar aggravation indices are at all 

alike. Further, the aggravation index for 

any given case is a function of the varia- 

bles that are included in the model. Any 

change in the variables included in the 

model will also change the aggravation in- 

dex of most, if not all, cases. 

The variability of the aggravation index 

as factors are added or deleted is well 

demonstrated by Respondent's Exhibit 40. 

One case comparison will serve as an exam- 

ple. In a life sentence case, C 54, an ag- 

gravation index (or predicted outcome in- 

dex, R 1485) was computed using a six-vari- 

able model. Calculation produced an index 

of .50. Katz conducted four additional re- 

gressions, each adding additional factors. 

By the time the more inclusive regression 

number five was performed, the aggrava- 

tion index or predicted outcome was .08 (0 

equals no death penalty, 1 equals death 

penalty). In a death case, C 66, the first 

regression analysis produced an index 

of .50. However, the aggravation coeffi- 

cient or predicted outcome rose to .89 when 

the facts of the case were subjected to the 

fifth regression analysis. Thence, two 

cases which under one regression analysis 

appeared to be similar, when subjected to 

another analysis may have a totally differ- 

ent aggravation index. Res.Exh. 40, R 

1483-1501. 

In interpreting the Baldus data it is im- 

portant to understand what he means when 

he says that he has controlled for other 

independent variables or held other individ- 

ual variables constant. What these terms 

usually mean is that a researcher has com- 

pared cases where the controlled-for varia- 

bles are present in each case and where the 

cases are divided into groups where the 

variable of interest is present and where 

the variable of interest is not present. 

That is not what occurs in regression anal- 

ysis. To be sure, the cases are divided into 

groups where the variable of interest is 

present and groups where it is not present. 

There is, however, absolutely no assurance 

that the background variables being con- 

trolled for are present in all of the cases, in 

any of the cases, or present in the same 

combination in any of the cases. Conse- 

quently, other factors are not being held 

constant as that term is usually used. See 

generally R 152, X 7, 19-25. 

Courts are accustomed to looking at fig- 

ures on racial disparity and understanding 

that the figure indicates the extent or de- 

gree of the disparity. It is often said that 

statistical evidence cannot demonstrate dis- 

crimination unless it shows gross dispari- 

ties. Contrary to the usual case, the court 

 



  

372 

has learned that at least in this case the 

size of a regression coefficient, even one 

statistically significant at the .05 level, says 

nothing about the specific degree of dispar- 

ity or discrimination in the system. All the 

regression coefficient indicates is that the 

difference in average outcome where the 

racial variable is present from cases where 

it is not present is large enough to enable 

one to say that the true mean of both 

groups are not exactly equal. R 1635, 

1670-71. Baldus made an effort to demon- 

strate the relative importance of the racial 

variables by showing them in an array of 

coefficients for other variables. The court 

later learned, however, that where some of 

the variables are binary or dichotomous 

and some are continuous (for example, 

number of mitigating features present), 

one cannot use the size of the regression 

coefficient as an indication of the relative 

strength of one variable to another. R 

783. 

Consistent with the difficulty in quantify- 

ing the effect of any variable found to be 

at work in the system, Baldus testified that 

a regression analysis really has no way of 

knowing what particular factors carry the 

most weight with the decision-maker in any 

one case. R 1141. Based on his entire 

analysis Baldus was unable to quantify the 

effect that race of the victim may have had 

in McCleskey’s case. R 1083-85. After a 

review of the Baldus study, Berk was un- 

able to say whether McCleskey was singled 

out to receive the death penalty because his 

victim was white, nor was he able to say 

that McCleskey would have escaped the 

death penalty if his victim had been black. 

Berk went on to testify: 

Models that are developed talk about the 

effects on the average. They do not 

depict the experience of a single individu- 

al. What they say, for example, that on 

the average, the race of the vietim, if it is 

white, increases on the average the prob- 

ability (that) the death sentence 

would be given. 

Whether in a given case that is the an- 

swer, it cannot be determined from sta- 

tistics. R 1785. 

580 FEDERAL SUPPLEMENT 

In summary, then, Baldus's findings 

from the larger scale regressions or from 

any of the others must be understood in 

light of what his methods are capable of 

showing. They do not compare identical 

cases, and the method is incapable of 

saying whether or not any factor had a 

role in the decision to impose the death 

penalty in any particular case. A prin- 

cipal assumption which must be present 

for a regression analysis to be entirely 

reliable is that the effects must be ran- 

domly distributed—that is not present in 

the data we have. The regression equa- 

‘tion 1s incapable of making qualitative 

judgments and, therefore, it will assign 

importance to any feature which appears 

frequently in the data without respect to 

whether that factor actually influences 

the decision-maker. Regression analysis 

generally does not control for back- 

ground variables as that term is usually 

understood, nor does it compare identical 

cases. Because Baldus used an index 

method, comparable cases will change 

from model to model. The regression 

coefficients do not quantitatively meas- 

ure the effect of the variables of interest. 

With these difficulties, it would appear 

that multivariate analysis is ill suited to 

provide the court with circumstantial evi- 

dence of the presence of discrimination, 

and it is incapable of providing the court 

with measures of qualitative difference in 

treatment which are necessary to a find- 

ing that a prima facie case has been es- 

tablished with statistical evidence. Fi- 

nally, the method is incapable of produc- 

ing evidence on whether or not racial 

factors played a part in the Dnposition of 

the death penalty in any particular case. 

To the extent that McCleskey contends 

that he was denied either due process or 

equal protection of the law, his methods 

fail to contribute anything of value to his 

cause. 

oC
 4 Rebuttal to the Hypothesis 

A part of Baldus's hypothesis is that the 

system places a lower value on black life 

than on white life. If this is true, it would 

 



  

McCLESKEY v. ZANT 373 
Cite as 580 F.Supp. 338 (1984) 

mean that the system would tolerate high- 

er levels of aggravation in black victim 

cases before the system imposes the death 

penalty. 

The respondent postulates a test of this 

thesis. It is said that if Baldus’s theory is 
correct, then one would necessarily find 

aggravation levels in black-victim cases 

where a life sentence was imposed to be 
higher than in white-victim cases. This 
seems to the court to be a plausible corol- 
lary to Baldus’s proposition. To test this 
corollary, Katz, analyzing aggravating and 

mitigating factors one by one, demonstrat- 

ed that in life sentence cases, to the extent 
that any aggravating circumstance is more 

prevalent in one group than the other, 

there are more aggravating features in the 

group of white-victim cases than in the 

group of black-victim cases. Conversely, 

there were more mitigating circumstances 

in which black-victim cases had a higher 
proportion of that circumstance than in 

white-victim cases. R 1510-15, 1540, Res. 

Exh. 43, 53, 34. 

Because Katz used one method to demon- 
strate relative levels of aggravation and 

Baldus used another, his index method, the 

court cannot say that this experiment alone 

conclusively demonstrates that Baldus’s 

theory is wrong. -It is, however, direct 

rebuttal evidence of the theory, and as 

such, stands to contradict any prima facile 

case of system-wide discrimination based 

on race of the victim even if it can be said 

that the petitioner has indeed established a 

prima facie case. This court does not be- 
lieve that he has. 

9. Miscellaneous Observations on the 

Statewide Data. 

So that a reader may have a better feel 

ing of subsidiary findings in the_studies 

and a better understanding of collateral 

10. One thing of interest came out in DB 60 
concerning the evaluation of the coders. In 
their judgment 92% of all the police reports that 
they studied indicated clear guilt. This is inter- 
esting in view of the fact that only 69% of all 
defendants tried for murder were convicted. 
This suggests either that the coders did not have 

issues in the case, some additional observa- 

tions are presented on Baldus’s study. 

Some general characteristics of the sam- 

ple contained in the Charging and Sentenec- 
ing Study which the court finds of interest 
are as follows. The largest group of de- 
fendants was in the 18 to 25-year-old age 
group. Only ten percent had any history 
of mental illness. Only three percent were 

high status defendants. Only eight per- 
cent of the defendants were from out of 

state. Females comprised 13% of the de- 
fendants. Of all the defendants in the 
study 35% had no prior criminal record, 

while 65% had some previous conviction. 

Co-perpetrators were not invoived in 79% 
of the cases, and 65% of the homicides 
were committed by lovers in a rage. High 

emotion in the form of hate, revenge, jeal- 

ousy or rage was present in 66% of the 

cases. Only one percent of the defendants 
had racial hatred as a motive. Victims 

provoked the defendant in 48% of the 
cases. At trial 26% confessed and offered 

no defense. Self defense was claimed in 
33% of the cases, while only two percent of 

the defendants relied upon insanity or delu- 

sional compulsion as a defense. Defend- 
ants had used alcohol or drugs immediately 
prior to the crime in 38% of the cases. In 
only 24% of the cases was a killing planned 

-.for more than five minutes. Intimate asso- 

ciates, friends, or family members account- 

ed for 44% of the victims. Black defend- . 

ants accounted for 67% of the total, and 

only 12% of the homicides were committed 

across racial lines. The largest proportion 

(58%) of the homicides were committed by 

black defendants against black victims. R 

659, et seq., DB 60.1 

From the data in the Charging and Sen- 

tencing Study it is learned that 94% of all 

homicide indictments were for murder. Of 

those indicted for murder or manslaughter 

55% did not plead guilty to voluntary man- 

enough experience to make this evaluation, or 
the more likely explanation is that the Parole 
Board summaries were obtained from official 
channels and only had the police version and 
had little if any gloss on the weaknesses of the 
case from the defendant's perspective. 

NE aa 

 



  

374 

slaughter. There were trials for murder in 

45% of the cases and 31% of the universe 

was convicted of murder. In only ten per- 
cent of the cases in the sample was a 

penalty trial held, and in only five percent 
of the sample were defendants sentenced 

to death. DB 58, R 64-65. See also DB 

59, R 655. : 

In his analysis of the charging and sen- 
tencing data, Baldus considered the effect 
of Georgia statutory- aggravating factors 

orn death sentencing rates, and several 
things of interest developed. The statuto- 

ry aggravating circumstances are highly 

related or correlated to one another. That 
is to say that singularly the factors have 

less impact than they do in combination. 
Even when the impact of the statutory 
aggravating circumstances is adjusted for 
the impact of the presence of others, killing 

to avoid arrest increased the probability of 
a death sentence by 21 points, and commit- 

ting a homicide during the course of a 
contemporaneous felony increased the 

probability of getting the death penalty by 

12 points. R 709-11, DB 68. Where the 
B8 and B10 factors are present together, 

the death penalty rate is 39%. DB 64. 
Based on these preliminary studies one 

might conclude that a defendant commit- 

ting a crime like McCleskey’s had a greatly 
enhanced probability of getting the death 

penalty. 

Of the 128 death sentences in the Charg- 

ing and Sentencing Study population, 105 

of those were imposed where the homicide 

was committed during the course of an 

enumerated contemporary offense. Fur- 

ther, it is noted that the probability of 

obtaining the death penalty is one in five if 

the B2 factor is present, a little better than 

one in five if the victim is a policeman or 

fireman, and the probability of receiving 

the death penalty is about one in three if 

the homicide was committed to avoid ar- 

11. Part of the moral force behind petitioner's 
contentions is that a civilized society should not 
tolerate a penalty system which does not avenge 
the murder of black people and white people 
alike. In this connection it is interesting to note 
that in the highest two categories of aggravation 
there were only ten cases where the murderer 

580 FEDERAL SUPPLEMENT 

rest. These, it is said, are the three statu- 

tory aggravating factors which are most 

likely to produce the death penalty, and all 
three were present de facto in McCleskey’s 
case. DB 61. 

When the 500 most aggravated cases in 

the system were divided into eight catego- 

ries according to the level of the aggrava- 

tion index, the death penalty rate rose dra- 

matically from 0 in the first two categories, 

to about 7% in the next two, to an average 

of about 22% in the next two, to a 41% rate 

at level seven, and an 88% rate at level 

eight. Level eight was composed of 58 

cases. The death sentencing rate in the 40 

most aggravated cases was 100%. DB 90, 
R 882. Baldus felt that data such as this 
supported a hypothesis arrived at earlier 

by other social science researchers. . This 
theory is known as the liberation. hypothe, 
sis. The postulation is that the exercise of 

discretion is limited in cases where there is 

little room for choice. If the imposition of 

the death penalty or the convicting of a 

defendant is unthinkable because the evi- 

dence is just not there, or the aggravation 
is low, or the mitigation is very high, no 

reasonable person would vote for convic- 

tion or the death penalty, and, therefore, 

impermissible factors such as race effects 

will not be noted at those points. But, 

according to the theory, when one looks at. 

the cases in the mid-range where the facts 

do not clearly call for one choice or the 

other, the decision-maker has broader free- 

dom to exercise discretion, and in. that area 
you see the effect of arbitrary or impermis- 

sible factors at work. R 884, R 1133." 

Baldus did a similar rank order study for 

all cases in the second data base. He divid- 

ed the cases into eight categories with the 

level of aggravation increasing as the cate- 

gory number increased. In this analysis he 

controlled for 14 factors, but the record 

does not show what those factors were. 

of a black victim did not receive the death 
penalty while in eleven cases the death penalty 
under similar circumstances was imposed. 
This is not by any means a sophisticated statisti- 

cal analysis, but even in its simplicity it paints 
no picture of a systematic deprecation of the 
value of black life. 

RY
N 

3 

H
Y
 

 



  

McCLESKEY v. ZANT 375 
Sere 338 (1984) 

The experiment showed that in the first 

five categories the death sentencing rate 

was less than one percent, and there was 

no race of the victim or race of the defend- 

ant disparity observed. At level six and 

nine statistically significant race of the vic- 

tim disparities appeared at the 9 point and 
27 point order of magnitude. Race of the 

defendant disparities appeared at the last” 

three levels, but none were statistically sig- 

nificant. A minor race of the victim dispar- 

ity was noted at level 7 but the figure was 
not significant. The observed death sen- 

tencing rates at the highest three levels 

were two percent, three percent, and 39%. 

DB 89. Exhibit DB 90 arguably supports 

Baldus’s theory that the liberation hypothe- | 

sis may be at work in the death penalty 

system in that it does show higher death 
sentencing rates in the mid-range cases 

than in those cases with the lowest and 

highest aggravation indices. On the other 

hand, Exhibit DB 89, which, unlike DB 90, 

is predicated on a multiple regression anal- 

ysis, shows higher racial disparities in the 

most aggravated level of cases and lower 

or no racial disparities in the mid-range of 

aggravation. Accordingly, the court is un- 

able to find any convincing evidence that 
the liberation hypothesis is applicable in 

this study. 

Baldus created a 39-variable model which 
was used for various diagnostics. It was 
also used in an attempt to demonstrate that 

given the facts of McCleskey's case, the 

probability of his receiving the death penal- 

ty because of the operation of impermissi- 

ble factors was greatly elevated. Al 

though the model is by no means accepta- 

ble,'? it is necessary to understand what is 

12. This model has only one strength of the evi- 
dence factor (DCONFESS) and that occurs only 
in 26 percent of the cases. Many other aggra- 

vating and mitigating circumstances which the 
court has come to understand are significant in 
explaining the operation of the sysiem in Geor- 
gia are omitted. Among these are that the 
homicide arose from a fight or that it was com- 
mitted by lovers in a rage. A variable for fami- 
lv, lover, liquor, barroom quarrel is included, 
and it might be argued that this is a proxy. 
However, the court notes from DB 60 that the 
included variable occurs in only 1,246 cases 
whereas the excluded variable (MADLOVER) 

“while in jail. 

. McCleskey's questionnaire. 

and is not shown by the model, as it is a 

centerpiece for many conclusions by peti- 

tioner's experts. On the basis of the 39- 

variable model McCleskey had an aggrava- 

tion score of .52. Woodworth estimated 

that at McCleskey’s level of aggravation 

the incremental probability of receiving the 

death penalty in a white-victim case is be- 

    

tween, nd 23 percentage points. R 

129%; 1°40, GW 5, Fig. 2. If a particu- 

lar aggravating chreumstance were left out 

in coding McCleskey's case, it would affect 

the point where his case fell on the aggra- 

vation index. R 1747. Judging from the 

testimony of Office Evans, McCleskey 

showed no remorse about the killing and, 

ta. the contrary, bragged about the killing 

While both of these are varia- 

bles available in the data base, neither is 

utilized in the model. If either were includ- 

ed it should have increased MecCleskey's 

index if either were coded correctly. on 

Both variables 

on McCleskey’s questionnaire were coded 

s “U,” and so even if the variables had 

been included, McCleskey’'s aggravation in- 

dex would not have increased because of 

the erroneous coding. If the questionnaire 

had been properly encoded and if either of 

the variables were included, McCleskey’s 

aggravation index would have increased, 

although the court is unable to say to what 

degree. Judging from GW 8, if that partic 

ular factor had a coefficient as great as .13, 

the 39-variable or “mid-range” model would 

not have demonstrated any disparity in sen- 

tencing rates as a function of the race of 

the victim. 

Katz conducted an experiment aimed at 

determining whether the uncertainty in 

occurs in 1,601 cases. Therefore, the universe 
of cases is not coextensive. Others which are 
excluded arc variables showing that the victim 
was forced to disrobe; that the victim was 
found without clothing; that the victim was 
mutilated; that the defendant killed in a rage; 
that the killing was unnecessary to carry out the 
contemporaneous felony: that the defendant 
was provoked; that the defendant lacked the 
intent to kill; that the defendant left the scene 
of the crime; that the defendant resisted arrest; 
and that the victim verbally provoked the de- 

fendant. 

 



  

376 

sentencing outcome in mid-range could be 

the result of imperfections of the model. 

He arbitrarily took the first 100 cases in 

the Procedural Reform Study. He then 

created five different models with progres- 

sively increasing numbers of variables. 

His six-variable model had an r? of .26. 

His 31-variable model had an r® of .95." 

Using these regression equations he com- 

puted the predictive outcome for each case 

using the aggravation index arrived at 

through his regression equations. As more 

variables were added, aggravation coeffi 

cients in virtually every case moved sharp- 

ly toward 0 in life sentence cases and 

. sharply toward 1 in death sentence cases. 

Respondent’s Exhibit 40. In the five re- 

gression models designed by Katz, McCles- 

key’s aggravation score, depending on the 

number of independent variables included, 
was .70, .75, 1.03, .87, and .85. R 1734, 

Res.Exh. 40. 

Based on the foregoing the court is not 

convinced that the liberation hypothesis 

is at work in the system under study. 

Further, the court is not convinced that 

even if the hypothesis was at work in thé 

system generally that it would suggest’ 

that impermissible factors entered into 

the decision to impose the death penalty 

upon McCleskey. 

On another subject, Baldus testified that 

in a highly decentralized decision-making 

system it is necessary to the validation of a 

study to determine if the effects noted 

system-wide obtain when one examines the 

decisions made by the compartmentalized 

decision-makers. R 964-69. An analysis 

was done to determine if the racial dispari- 

ties would persist if decisions made by ur- 

ban decision-makers were compared with 

decisions made by rural decision-makers." 

No statistically significant race of the vic 
tim or race of the defendant effect was 

observed in urban decision-making units. 

A 08 effect, significant at the .05 level, 

13. Katz testified that in most cases he randomly 

selected variables and in the case of the 31-vari- 

able mode! selected those variables arbitrarily 
which would most likely predict the outcome in 

McCleskey’s case. 

“sense conceptually. 

580 FEDERAL SUPPLEMENT 

was observed for race of the victim in rural 

decision-making units, but when logistic re- 

gression analysis was used, the effect be- 

came statistically insignificant. The race 

of the defendant effect in the rural area 

was not statistically significant. The deci 

sions in McCleskey’s case were made by 

urban decision-makers. 

Finally, the court makes the following 

findings with reference to some of the oth- 

er models utilized by petitioner's experts. 

As noted earlier some were developed 

through a procedure called stepwise re- 

gression. What stepwise regressfon does 

is to screen the variables that are included 

in the analysis and include those variables 

which make the greatest net contribution 

to the r2. The computer program knows 

nothing about the nature of those variables 

and is not in a position to evaluate whether 

or not the variable logically would make a 

difference. If the variables are highly cor- 

related, the effect quite frequently is to 

drop variables which should not be dropped 

from a subject matter or substantive point 

of view and keep variables in that make no 

So, stepwise regres- 

sion can present a very misleading picture 

through the presentation of models which 

have relatively high r* and have significant 

coefficients but which models do not really 

mean anything. R 1652. Because of this 

the court cannot accord any weight to 

any evidence produced by the model cre- 

ated by stepwise regression. 

Woodworth conducted a number of tests 

on five models to determine if his measures 

of statistical significance were valid. As 

there were no validations of the models he 

selected and none can fairly be said on the 

basis of the evidence before the court to 

model the criminal justice system in Geor- 

gia, Woodworth's diagnostics provide little 

if any corroboration to the findings produc- 

ed by such models. R 1252, ef seq, GW ¢, 

Table 1. 

14. Based on the court's knowledge of the State 

of Georgia, it appears that Baldus included 

many distinctly rural jurisdictions in the catego- 

ry of urban jurisdictions. 

 



  

McCLESKEY v. ZANT 377 
Cite as 380 F.Supp. 338 (1984) 

In Exhibits DB 36 and DB 97, outcomes - 

which indicate racial disparities at the level 

of prosecutorial decision-making and jury 

decision-making are displayed. At the 

hearing the court had thought that the 

column under the Charging and Sentencing 

Study might be the product of a model 

which controlled for sufficient background 

variables to make it partially reliable. 

Since the hearing the court has consulted 

Schedule 8 of the Technical Appendix (DB 

96A) and has determined that only eleven 

background variables have been controlled 

‘for, and many significant background vari 

ables are omitted from the model. The 

other models tested in DB 96 and 97 are 

similarly under-inclusive. (In this respect 

compare the variables listed on Schedule 8 

through 13, inclusive, of the Technical Ap- 

pendix with the variables listed in DB 59.) 

For this reason the court is of the opinion 

that DB 96 and DB 97 are probative of 

nothing. 

10. The Fulton County Data. 

McCleskey was charged and sentenced in 

Fulton County, Georgia.’ Recognizing 

that the impact of factors, both permissible 

and impermissible, do vary with the deci 

sion-maker, and recognizing that some 

cases in this circuit have required that the 

statistical evidence focus on the decisions 

where the sentence was imposed, petition" 

er's experts conducted a study of the effect 

of racial factors on charging and sentenc- 

ing in Fulton County. 

The statistical evidence on the impact of 

racial variables is inconclusive. If one con- 

trols .for 40 or 50 background variables, 

multiple regression analysis does not pro- 

duce any statistically significant evidence 

of either a race of the defendant or race of 

the victim disparity in Fulton County. R 

1000. Baldus used a stepwise regression 

analysis in an effort to determine racial 

disparities at different stages of the crimi- 

nal justice system in the county. The step- 

wise regression procedure selected 23 vari- 

15. As part of its findings on the Fuiton County 
data, the court finds that there are no guidelines 
in the Office of the District Attorney of the 
Atlanta Judicial Circuit to guide the exercise of 

ables. Baldus made no judgment at all 

concerning the appropriateness of the vari 

ables selected by the computer. The study 

indicated a statistically significant race of 

the victim and race of the defendant effect 

at the plea bargaining stage and at the 

stage where the prosecutor made the deci- 

sion to advance the case to a penalty trial. 

Overall, there was no statistically signifi- 

cant evidence that the race of the victim or 

race of the defendant played any part in 

who received the death penalty and who did 

not. As a matter of fact, the coefficients 

for these two variables were very modestly 

negative which would indicate a higher 

death sentencing rate in black-victim cases 

and in white-defendant cases. Neither of 

the coefficients, however, approach statisti 

cal significance. R 1037-49. 

The same patterns observed earlier with. 

reference to the relative aggravation and 

mitigation of white and black-victim cases, 

respectively, continue when the Fulton 

County data is reviewed. In Fulton Coun- 

ty, as was the case statewide, cases in 

which black defendants killed white victims . 

seemed to be more aggravated than cases 

in which white defendants killed white vic- 

tims. R 1554, 1561, Res.Exh. 68. 

Based on DB 114 and a near neighbor 

analysis, Baldus offered the opinion that in 

cases where there was a real risk of a 

death penalty one could see racial effeets. 

R 1049-30. DB 114 is statistically incon- 

clusive so far ds the court can determine. 

The cohort study or near neighbor analysis 

also does not offer any support for Bal- 

dus's opinion. Out of the universe of cases 

in Fulton County Baldus selected 32 cases 

that he felt were near neighbors to McCles- 

key. These ran the gambit from locally 

notorious cases against Timothy Wes 

McCorquodale, Jack Carlton House, and 

Marcus Wayne Chennault, to cases that 

were clearly not as aggravated as MeCles- 

key's case. Baldus then divided these 32 

discretion in determining whether or not to 

seck a penalty trial. Further, it was established 

that there was only one black juror on McCles- 

key's jury. R 1316. 

 



  

378 

cases into three groups: More aggravated, 

equal to McCleskey, and less aggravated. 

The court has studied the cases of the 

cohorts put in the same category as 

McCleskey and cannot identify either a 

race of the victim or race of the defendant 

disparity. All of the cases involve a fact 

pattern something like McCleskey’s case in 

that the homicides were committed during 

the course of a robbery and in that the 

cases involve some gratuitous violence, 

such as multiple gunshots, ete. Except in 

one case, the similarities end there, and 

there are. distinctive differences that can 

explain why either no .penalty trial was 

held or no death sentence was imposed. 

As noted above, Dr. Baldus established 

that the presence of the B10 factor, that is 

that the homicide was committed to stop or 

avoid an arrest, had an important pre- 

dictive effect on the imposition of the death 

penalty. Also, the fact that the vietim was 

a police officer had some predictive effect. 

Keeping these thoughts in mind, we turn to 

a review of the cases. Defendant Thorn- 

ton's case (black defendant/black victim) 

did not involve a police officer. Further, 

Thornton was very much under the influ- 

ence of drugs at the time of the homicide 

and had a history of a ‘distinct alcohol 

problem.” In Dillard's case (black de- 

fendant/black victim) the homicide was not 

necessary to prevent an arrest and the 

victim was not a police officer. Further, 

Dillard's prior record was less serious than 

McCleskey’s. In Leach’s case (black de- 

fendant/black victim) the homicide was not 

committed to prevent an arrest and the 

victim was not a police officer. Further, 

Leach had only one prior felony and that 

was for motor vehicle theft. Leach went to 

trial and went through a penalty trial. No- 

where in the coder’'s summary is there any 

information available on Leach’s defense or 

on any evidence of mitigation offered. 

In the case of Gantt (black de- 

fendant/white victim) the homicide was not 

committed to avoid an arrest and the vicum 

was not a police officer. Further, Gantt 

relied on an insanity defense at trial and 

had only one prior conviction. Crouch's 

580 FEDERAL SUPPLEMENT 

case (white defendant/white victim) did not 

involve a homicide committed to prevent an 

arrest and the victim was not a police offi- 

cer. Crouch’s prior record was not as se 

vere as McCleskey’'s and, unlike McCles- 

key, Crouch had a prior history of treat- 

ment by a mental health professional and 

had a prior history of habitual drug use. 

Further, and importantly, the evidence con- 

tained in the summary does not show that 

Crouch caused the death of the victim. 

Arnold is a case involving a black defend- 

ant and a white victim. The facts are 

much the same as McCleskey’s except that 

the victim was not a police officer but was 

a storekeeper. Arnold's case is aggravated 

by the fact that in addition to killing the 

victim, he shot at three bystander witness- 

es as he left the scene of the robbery, and 

he and his co-perpetrators committed an- 

other armed robbery on that day. Arnold 

was tried and sentenced to death. Henry's 

case (black defendant/white victim) did not 

involve a homicide to escape an arrest or a 

police vietim. Henry's prior record was not 

as serious as MecCleskey's, and, from the 

summary, it would appear that there was 

no direct evidence that the defendant was 

the triggerman, nor that the State con- 

sidered him to be the triggerman. 

In sum, it would seem to the court that 

Arnold and McCleskey's treatments were 

proportional and that their cases were 

more aggravated and less mitigated than 

the other cases classified by Baldus as co- 

horts. This analysis does not show any 

effect based either upon race of the defend- 

ant or race of the victim. See generally R 

985-99, DB 110. 

Another type of cohort analysis is pOSSi- 

ble using Fulton County data. There were 

17 defendants charged in connection with 

the killing of a police officer since Fur 

man. Six of those in Baldus’s opinion 

were equally aggravated to McCleskey's 

case. Four of the cases involved a black 

defendant killing a white officer; two in- 

volved a black defendant killing a black 

officer: and one involved a white defendant 

killing a white officer. There were two 

penalty trials. McCleskey's involved a 

 



  

McCLESKEY v. ZANT 379 
Clte as 580 F.Supp. 338 (1984) 

black defendant killing a white officer; the 
other penalty trial involved a black defend- 

ant killing a black officer. Only McCleskey 
received a death sentence. Three of the 
offenders pled guilty to murder, and two 

went to trial and were convicted and there 
was no penalty trial. On the basis of this 
data and taking the liberation hypothesis 
into account, Baldus expressed the opin- 
ion that a racial factor could have been 

considered, and that factor might have 
tipped the scales against McCleskey. R 
1051-56, DB 116. The court considers 
this opinion unsupported conjecture by 

Baldus. Sar or 

D. Conclusions of Law 

Based upon the legal premises and au- 

thorities set out above the court makes 

these conclusions of law. 

[25] The petitioner's statistics do not 
demonstrate a prima facie case in support 

of the contention that the death penalty 

was imposed upon him because of his race, 

because of the race of the victim, or be- 
cause of any Eighth Amendment concern. 

Except for analyses conducted with the 

230-variable model and the 250-variable 
model, none of the other models relied upon 

by the petitioner account to any substantial 

degree for racially neutral variables which 
could have produced the effect observed. 
The state-wide data does not indicate the 
likelihood of discriminatory treatment by 
the decision-makers who sought or imposed 

‘the death penalty and the Fulton County 

data does not produce any statistically sig- 

nificant evidence on a validated model nor 

any anecdotal evidence that race of the 

victim or race of the defendant played any 
part in the decision to seek or impose the 

death penalty on McCleskey. 

The data base for the studies is substan- 

tially flawed, and the methodology utilized 

is incapable of showing the result of racial 

variables on cases similarly situated. Fur- 

ther, the methods employed are incapable 

of disclosing and do not disclose quantita- 

tively the effect, if any, that the two sus- 

pect racial variables have either state-wide, 

county-wide or in McCleskey's case. Ac- 

cordingly, a court would be incapable of 

discerning the degree of disparate treat- 
ment if there were any. Finally, the larg- 
est models utilized are insufficiently pre- 

dictive to give adequate assurances that 
the presence of an effect by the two racial 
variables is real. 

Even if it were assumed that McCleskey 
had made out a prima facie case, the re- 
spondent has shown that the results are 

not the product of good statistical method- 
ology and, further, the respondent has re- 
butted any prima facie case by showing the 

existence of another explanation for the 
observed results, i.e. that white victim 

cases are acting as proxies for aggravated 

cases and that black victim cases are acting 

as proxies for mitigated cases. Further 
rebuttal is offered by the respondent in its 
showing that the black-victim cases being 
left behind at the life sentence and volun- 

tary manslaughter stages, are less aggra- 

vated and more mitigated than the white- 
victim cases disposed of in similar fashion. 

Further, the petitioner has failed to carry 
his ultimate burden of persuasion. Even in 

the state-wide data, there is no consistent 

statistically significant evidence that the 

death penalty is being imposed because of 

the race of the defendant. A persisent 

race of the victim effect is reported in the 

state-wide data on the basis of experiments 

performed utilizing models which do not 

adequately account for other neutral varia- 

bles. These tables demonstrate nothing. 

When the 230-variable model is utilized, a 

race of the victim and race of the defend- 

ant effect is demonstrated. When all of 

the decisions made throughout the process 

are taken into account it is theorized but 

not demonstrated that the point in the sys- 

tem at which these impermissible consider- 

ations come into play is at plea bargaining. 

The study, however, is not geared to, nor 
does it attempt to control for other neutral 

variables to demonstrate that there is un- 

fairness in plea bargaining with black de- 

fendants or killers of white victims. In any 

event, the petitioner's study demonstrates 

that at the two levels of the system that 

matter to him, the decision to seek the 

 



  

380 

death penalty and the decision to impose 

the death penalty, there is no statistically 

significant evidence produced by a reason- 

ably comprehensive model that prosecutors 

are seeking the death penalty or juries are 

imposing the death penalty because the 

defendant is black or the victim is white. 

Further, the petitioner concedes that his 

study is incapable of demonstrating that 

he, specifically, was singled out for the 

death penalty because of the race of either 

himself or his victim. Further, his experts 

have testified that neither racial variable 

preponderates in thé decision-making and, 

in the final analysis, that the seeking or the 

imposition of the death penalty depends on 

.the presence of neutral aggravating and 

mitigating circumstances. For this addi 

tional reason, the court finds that even 

accepting petitioner’s data at face value, he 

has failed to demonstrate that racial con- 

siderations caused him to receive the death 

penalty. 

‘For these, “#nong other, reasons the 

court denies the petition for a writ of habe- 

as corpus on this issue. 

GIGLIO [1I. CLAIM “A"—THE 
CLAIM. 

Petitioner asserts that the failure of the 

State to disclose an “understanding” with 

one of its key witnesses regarding pending 

criminal charges violated petitioner's due 

process rights. In Giglio v. United States, 
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 
(1971) the Supreme Court stated: 

As long ago as Mooney v. Holohan, 

294 U.S. 103, 112 [55 S.Ct. 340, 341, 79 
L.Ed. 791] (1935), this Court made clear 

that deliberate deception of a court and 

jurors by the presentation of known false 

evidence is incompatible with “rudimen- 

tary demands of justice.” This was reaf- 

firmed in Pyle v. Kansas, 317 US. 213 
[63 S.Ct. 177, 87 L.Ed. 214] (1942). In 

Napue v. lllinois, 360 U.S. 264 [79 S.Ct. 

1173, 3 L.Ed.2d 1217] (1959), we said, 
“ltlhe same result obtains when the 

State, although not soliciting false evi 

dence, allows it to go uncorrected when 

it appears.” Id, at 269 [79 S.Ct. at 

580 FEDERAL SUPPLEMENT 

1177). Thereafter Brady v. Maryland, 

373 U.S. [83], at 87 [83 S.Ct. at 1194, 10 

L.Ed.2d 215], held that suppression of 

material evidence justifies a new trial 

“irrespective of the good faith or bad 

faith of the prosecution.” See American 

Bar Association, Project on Standards 

for Criminal Justice, Prosecution Func- 

tion and the Defense Function § 3.11(a). 
When the “reliability of a given witness 

may well be determinative of guilt or 

" innocence,” nondisclosure of evidence af- 

fecting credibility falls within this gener- 

al rule. 405 U.S. 150, 153-54, 92 S.Ct. 

763, 765-66, 31 L.Ed.2d 104. 

In Giglio an Assistant United States Attor- 

ney had promised leniency to a co-conspira- 

tor in exchange for his testimony against 

defendant. However, the Assistant U.S. 

Attorney who handled the case at trial was 

unaware of this promise of leniency and 

argued to the jury that the witness had 

“received no promises that he would not be 

indicted.” The Supreme Court held that 

neither the Assistant's lack of authority 

nor his failure to inform his superiors and 

associates was controlling. The prosecu- 

tion's duty to present all material evidence 

to the jury was not fulfilled and thus con- 

stituted a violation of due process requiring 

a new trial. Jd. at 150, 92 S.Ct. at 763. 

[26] It is clear from Giglio and subse- 

quent cases that the rule announced in 

Giglio applies not only to traditional deals 

made by the prosecutor in exchange for 

testimony but also to any promises or 

understandings made by any member of 

the prosecutorial team. which includes po- 

lice investigators. See United States v. 

Antone, 603 F.2d 566, 369 (5th Cir.1979) 

(Giglio analysis held to apply to under 

standing between investigators of the Flor- 

ida Department of Criminal Law Enforce- 

ment and the witness in a federal prosecu- 

tion). The reason for giving Giglio such a 

broad reach is that the Giglio rule is de- 
signed to do more than simply prevent 

prosecutorial misconduct. It is also a rule 

designed to insure the integrity of the 

truth-seeking process. As the Fifth Circuit 

stated in United States v. Cawley, 431 

F.2d 702 (5th Cir.1973), “{w)e read Giglio 
RR 

 



  

McCLESKEY v. ZANT . 381 
Cite as 580 F.Supp. 338 (1984) ) ; 

and [United States v.] Tashman and Gold- 

berg (sic) [478 F.2d 129 (5th Cir., 1973)} 

to mean simply that the jury must be ap- 

prised of any promise which induces a key 

government witness to testify on the 

government's behalf.” Jd. at 707. More 

recently, the Eleventh Circuit has stated: 

The thrust of Giglio and its progeny has 

been to ensure that the jury know the 

facts that might motivate a witness in 

giving testimony, and that the prosecutor 

not fraudulently conceal such facts from 

the jury. We must focus on “the impact 

on the jury.” Smith v. Kemp, T15 F.2d 

1459, 1467 (11th Cir.1983) (quoting Unit- 

ed States v. Anderson, 574 F.2d 1347, 

1356 (5th Cir.1978)). 

In the present case the State introduced 

at petitioner's trial highly damaging testi- 

mony by Offie Gene Evans, an inmate of 

Fulton County Jail, who had been placed in 

solitary confinement in a cell adjoining peti- 

tioner's. Although it was revealed at trial 

that the witness “had been charged with 

escaping from a federal halfway house, the 

16. On direct examination the prosecutor asked: 

Q: Mr. Evans have I promised you anything 

for testifying today? 
A: No, sir, you ain't. 

Q: You do have an escape charge still pend- 

ing, is that correct? 

A: Yes, sir. I've got one, but really it ain't no 

escape, what the peoples out there tell me, 

because something went wrong out there so | 

just went home. I stayed at home and when | 

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, | hope I don't, but | don't—what 

they tell me, they ain't going (0 charge me 

with escape no way. 

Q: Have you asked me to try to fix it so you 

wouldn't get charged with escape? 

A: No, sir. 

Q: Have | told you I would try to fix it for 

you? 

A: No, sir. 
Trial Transcript at 868. 

On cross-cxamination by petitioner's trial 

counse} Mr. Evans testified: 

.Q: Okay. Now, were you attempting to get 

your escape charges altered or al least worked 

out, were you expecting your testimony to be 

helpful in that? 

witness denied that any deals or promises 

had been made concerning those charges in 

exchange for his testimony.'® The jury 

was clearly left with the impression that 

Evans was unconcerned about any charges 

which were pending against him and that 

no promises had been made which would 

affect his credibility. However, at petition- 

er’s state habeas corpus hearing Evans tes- 

tified that one of the detectives investigal- 

ing the case had promised to speak to fed- 

eral authorities on his behalf.” It was 

further revealed that the escape charges 

pending against Evans were dropped sub- 

sequent to McCleskey’s trial. 

[27] After hearing the testimony, the 

habeas court concluded that the mere ex 

parte recommendation by the detective did 

not trigger the applicability of Giglio. 

This, however, is error under United 

States v. Antone, 603 F.2d 566, 569 (5th 

Cir.1979) and cases cited therein. A prom- 

‘ise, made prior to a witness's testimony, 

that the investigating detective will speak 

A: 1 wasn't worrving about the escape 

charge. 1 wouldn't have needed this for that 

charge, there wasn't no escape charge. 

Q: Those charges arc still pending against 

you, aren't they? 

A: Yeah, the charge is pending against me, 

but | ain't been before no Grand Jury or 

nothing like that, not yet. 

Trial Transcript at 882. 

17. At the habeas hearing the following tran- 

“ spired: 

The Court: Mr. Evans, let me ask vou a ques 

tion. At the time that vou testified in Mr. 

McCleskey's trial, had you been promised any: 

thing in exchange for your testimony? 

The Witness: No, I wasn't. [ wasa't promised... 
Tan, cw 

nothing about—1 wasn't promised nothing be 

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 w hat the 

Detective told me. 
By Mr. Stroup: 

Q: The Detective told vou that he would 

speak a word for vou? 

A: Yeah, 
Q: That was Detective Dorsey? 

A: Yeah. 
Habeas Transcript at 122. 

» 

 



  

382 

favorably to federal authorities concerning 
pending federal charges is within the scope 

of Giglio because it is the sort of promise 
of favorable treatment which could induce 

a witness to testify falsely on behalf of the 

government. Such a promise of favorable 
treatment could affect the credibility of the 
witness in the eyes of the jury. As the 
court observed in United States v. Bar- 
ham, 595 F.2d 231 (5th Cir.1979), cert. de- 
nied, 450 U.S. 1002, 101 S.Ct. 1711, 68 
L.Ed.2d 205, the defendant is “entitled to a 

jury that, before deciding which story to 
credit, was truthfully apprised of any possi- 

ble interest of any Government witness in 

. testifying falsely.” Id. at 243 (emphasis in 
original). 

A finding that the prosecution has given 
the witness an undisclosed promise of fa- 
vorable treatment does not necessarily 
warrant a new trial, however. 

Court observed J an. . Giglio: 

We do not, however, automatically re- 
quire a new trial whenever “a combing 

of the prosecutors’ files after the trial 
has disclosed evidence possibly useful to 
the defense but not likely to have 
changed the verdict....” United States 
v. Keogh, 391 F.2d 138, 148 (C.A. 2 1968). 

A finding of materiality of the evidence 
is required under Brady, supra, at 87. 
A new trial is required if “the false testi 
mony could ... in any reasonable likeli 

hood have affected the judgment of the 

jury ...."7 405 US at 154,92 3.Ct. af 

766. 

In United States v. Anderson, 574 F.2d 

1347 (5th Cir.1978), the court elaborated 

upon the standard of review to be applied 

in cases involving suppression of ev gence 

impeaching a prosecution witness: : 

18. In his closing argument to the jury the prose- 
cutor developed the malice argument: 

He (McCleskey) could have gotten out of that 
back door just like the other three did, but he 
chose not to do that, he chose to go the other 
way, and just like Offie Evans says, it doesn’t 
make any difference if there had been a dozen 
policemen come in there, he was going to 
shoot his way out. He didn't have to do that, 
he could have run out the side entrance, he 
could have given up, he could have concealed 

As the 

580 FEDERAL SUPPLEMENT 

The reviewing court must focus on the 

impact on the jury. A new trial is neces- 

sary when there is any reasonable likeli- 
hood that disclosure of the truth would 

have affected the judgment of the jury, 

that is, when there is a reasonable likeli- 
hood its verdict might have been differ- 
ent, We must assess both the weight of 

the independent evidence of guilt and the 
importance of the witness’ testimony, 

which credibility affects. /d. at 1356. 

In other cases the court has examined the 
extent to which other impeaching evidence 
was presented to the jury to determine 

whether or not the suppressed information 

would have made a difference. £.g., Unit- 

ed States v. Antone, 603 F.2d 566 (5th 
Cir.1979). 

In the present case the testimony of Ev- 
ans was damaging to petitioner in several 

respects. First, he alone of all the witness- 
es for the prosecution testified that 
McCleskey had been wearing makeup on 
the day of the robbery. Such testimony 

obviously helped the jury resolve the con- 

tradictions between the descriptions given 

by witnesses after the crime and their in- 

court identifications of petitioner. Second, 

Evans was the only witness, other than the 

codefendant, Ben Wright, to testify that 
McCleskey had admitted to shooting Offi- 
cer Schlatt. No murder weapon was ever 
recovered. No one saw the shooting. 

Aside from the damaging testimony of 

Wright and Evans that McCleskey had ad- 

mitted the shooting, the evidence that 

McCleskey was the iriggerman was entire- 

ly circumstantial. Finally, Evans’ testimo- 

ny was by far the most Jemaging testimo- 

ny on the issue of malice." - 

[28] In reviewing all of the evidence 

presented at trial, this court cannot con- 

himself like he said he tried to do under one 
of the couches and just hid there. He could 
have done that and let them find him, here | 
am, peekaboo. 
He deliberately killed that officer on purpose. 
I can guess what his purpose was, | am sure 
you can guess what it was, too. He is going to 

be a big man and kill a police officer and get 
away with it. That is malice. 

Trial Transcript at 974-73. 

 



  

McCLESKEY v. ZANT 383 
Cite as 580 F.Supp. 338 (1984) 

clude that had the jury known of the prom- 

ise made by Detective Dorsey to Offie Ev- 

ans, that there is any reasonable likelihood 

that the jury would have reached a differ- 

ent verdict on the charges of armed rob- 

bery. Evans's testimony was merely 

cumulative of substantial other testimony 

that McCleskey was present at the Dixie 

Furniture Store robbery. However, given 

the circumstantial nature of the evidence 

that McCleskey was the triggerman who 

killed Officer Sechlatt .and the damaging 

nature of Evans's testimony as to this is- 

sue and the issue of malice, the court does 

find that the jury may reasonably have 

reached a different verdict on the charge of 

malice murder had the promise of favor- 

able treatment been disclosed. The court's 

conclusion in this respect is bolstered by 

the fact that the trial judge, in charging 

the jury as to murder, instructed the jury 

that they could find the defendant guilty of 

either malice murder or felony murder. 

After approximately two hours of deliberu- 

tion, the jury asked the court for further 

instructions on the definition of malice. 

Given the highly damaging nature of Ev- 

ans’s testimony on the issue of malice, 

there is a reasonable likelihood that disclo- 

sure of the promise of favorable treatment 

to Evans would have affected the judgment 

of the jury on this issue." 

As the Fifth Circuit observed in United 

States v. Barham, 395 F.2d 231 (5th Cir), 

cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 

62 L.Ed.2d 205 (1981), another case involv- 

ing circumstantial evidence bolstered by 

the testimony of a witness to whom an 

undisclosed promise of favorable treatment 

had been given: 

There is no doubt that the evidence in 

this case was sufficient to support a ver- 

19. Although petitioner has not made this argu 
ment, the court notes in passing that Evans’ 
testimony at trial regarding the circumstances 

of his escape varies markedly from the facts 
appearing in the records of federal prison au 
thorities. For example, the records show that 
Evans had been using cocaine and opium imine: 
diately prior to and during his absence from the 
halfway house. Petitioner's Exhibit D, filed 

June 25, 1982. Also, prison records show that 
upon being captured Evans told authorities he 
had been in Florida working undercover in a 
drug investigation. Petitioner's Exhibit E, filed 

dict of guilty. But the fact that we 

would sustain a conviction untainted by 

the false evidence is not the question. 

After all, we are not the body which, 

under the Constitution, is given the re- 

sponsibility of deciding guilt or inno- 

cence. The jury is that body, and, again 

under the Constitution, the defendant is 

entitled to a jury that is not laboring 

under a Government-sanctioned false im- 

pression of material evidence when it de- 

cides the question of guilt or innocence 

with all its ramifications. 

We reiterate that credibility was especial- 

ly important in this case in which two 

sets of witnesses—all alleged partici- 

pants in one or more stages of a criminal 

enterprise—presented irreconcilable sto- 

ries. Barham was entitled to a jury that, 

before deciding which story to credit, 

was truthfully apprised of any possible 

interest of any Government witness in 

testifving falsely. Knowledge of the 

Government's promises to Joey Shaver 

and Diane and Jerry Beech would have 

given the jury a concrete reason to be- 

lieve that those three witnesses might 

have fubricated testimony in order to 

avoid prosecution themselves or minimize 

the adverse consequences .of prosecu- 

tion.... And the subsequent failure of 

the Government to correct the false im- 

pression given by Shaver and the Beech 

es shielded from jury consideration yet 

another, more persuasive reason to doubt 

their testimony—the very fact that they 

had attempted to give the jury a false 

impression concerning promises {rom the 

Government. In this case, in which cred- 

ibility weighed so heavily in the balance, 

we cannot conclude that the jury, had it 

been given a specific reason to diseredit 

June 23, 1982. These facts, availabe to the 
prosecutorial team but unknown to the defense, 

contradict Evans’ belittling of his escape. Sev 
Note 1, supra. The prosecution allowed Evans’ 
false testimony to go uncorrected, and the jury 

obtained a materially false impression of his 
crodibility. Under circumstances the 

good faith or bad faith of the prosecution is 
irrelevant. Brady v. Marviand, 373 US. 83, 87, 

RISC 1194 1196 101. Fd.2d 215.(1963), . Na- 

pue v. Hlinois, 360 U.S. 264, 79 S.Ct. 1173, 3 
Y.. Ed 2d 3217119589) 

these 

 



  

384 

the testimony of these key Government 

witnesses, would still have found that. 

the Government's case and Barham'’s 

guilt had been established beyond a rea- 

sonable doubt. Jd. at 242-43 (emphasis 

in original). 

Because disclosure of the promise of fa- 

vorable treatment and correction of the 

other falsehoods in Evans’ testimony could 

reasonably have affected the jury's verdict 

on the charge of malice murder, petition- 

er’s conviction and sentence on that charge 

are unconstitutional.?? The writ of habeas 

corpus must therefore issue. 

IV. CLAIM “C’—THE SANDSTROM 

CLAIM. 

Petitioner claims that the trial court's 

instructions to the jury deprived him of due 

20. Nothing the court says in this part of the 

opinion is meant to imply that petitioner's con- 

finement for consecutive lifc sentences on his 

armed robbery convictions is unconstitutional. 

The court holds only that the conviction and 

sentence for murder are unconstitutional. 

21. The relevant portions of the trial court's jury 

instructions are set forth below. The portions 

to which petitioner objects are underlined. 

Now, the defendant enters upon the trial of 

this case, of all three charges set forth in the 

indictment, with the presumption of inno- 

cence in his behalf, and that presumption 

remains with him throughout the trial of the 

case unless and until the State introduces evi- 

dence proving the defendant's guilt of one or 

more or all of the charges beyond a reasona’ 

ble doubt. 
The burden rests upon the state to prove the 

case by proving the material allegations of 

each count to your satisfaction and beyond 2 

reasonable doubt. In determining whether or 

not the state has carried that burden you 

would consider all the evidence that has been 

introduced here before you during the trial of 

this case. 

Now, in every criminal prosecution, ladies 

and gentlemen, criminal intent is a necessary 

and material ingredient thercofl. To put it 

differently, a criminal intent is a material and 

necessary ingredient in any criminal prosccu- 

tion. 

I will now try to explain what the law 

means by criminal intent by reading you two 

sections of the criminal code dealing with 

intent, and 1 will tell you how the last section 

applies to you, the jury. 
One section of our law savs that the acts of 

a person of sound mind and discretion are 
  

  

580 FEDERAL SUPPLEMENT 

process because they unconstitutionally re- 

lieved the prosecution of its burden of prov- 

ing beyond a reasonable doubt each and 

every essential element of the crimes for 

which defendant was convicted. Specifical- 

ly, petitioner objects to that portion of the 

trial court's charge which stated: 

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?! Trial Transcript at 996. 

[29,30] It is now well established that 

the due process clause ‘protects the ac 

cused against conviction except upon proof 

presumed to be the product of the person's 

will. and a person of sound mind and discre- 

lion is presumed to intend the natural and 

arobable consequences of his acts, but both of 

these presumptions may be rebutted. 

I charge you, however, that a person will 

not be presumed to act with criminal inten- 

tion, but the second code section says that the 

trier of facts may find such intention upon 

consideration of the words, conduct, demean- 

or, motive and all other circumstances con- 

nected with the act for which the accused is 

prosecuted. : 

Now, that second code section I have read 

you as the term the trier of facts. In this case, 

ladies and gentlemen, you are the trier of 

facts, and therefore it is for vou, the jury, to 

determine the question of facts solely from 

vour determination as 10 whether there was a 

criminal intention on the part of the defend- 

ant, considering the facts and circumstances 

as disclosed. by the evidence and deductions 

which might reasonably be drawn from those 

facts and circumstances. 

  

  

  

  

  

Now, the offense charged in Count One of 

the indictment is murder, and I will charge 

you what the law says about murder. 

| charge you that a person commits murder 

when he unlawfully and with malice afore: 

thought, either express or implied, causes the 

death of another human being. Express mal- 

ice is that deliberate intention to take away 

the life of a fellow creature which is manifest 

ed by external circumstances capable of 

proof. Malice shall be implied when no con- 

siderable provocation appears and where all 

the circumstances of the killing show an 

abandoned and malignant heart. That is the 

language of the law, ladies and gentlemen. 

 



  

McCLESKEY v. ZANT 385 
Cite as 580 F.Supp. 338 (1984) 

beyond a reasonable doubt of every fact 

necessary to constitute the crime with 

which he is charged.” In Re Winship, 397 

U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 

L.Ed2d 368 (1970). Jury instructions 

which relieve the prosecution of this bur 

den or which shift to the accused the bur- 

den of persuasion on one or more elements 

of the crime are unconstitutional. Sand- 

strom v. Montana, 442 U.S. 510, 99 S.Ct. 

2450, 61 L.Ed.2d 39 (1979); Mullaney v. 

Wilbur, 421 U.S. 684, 95 S.Ct. 18831, 44 

L.Ed.2d 508 (1975). 

£31] In analyzing a Sandstrom claim 

the court must first examine the crime for 

which the petitioner has been convicted and 

then examine the complained-of charge to 

determine whether the charge unconstitu- 

tionally shifted the burden of proof on any 

essential element of the crime. See Lamb 

v. Jernigan, 683 F.2d 1332, 1335-36 (11th 

Cir.1982), cert. denied, — U.S. ——, 103 

S.Ct. 1276, 75 L.Ed.2d 496 (1983). If the 

reviewing court determines that a reasona- 

I charge you that legal malice is not neces- 

sarily ill-will or hatred. It is the intention to 

unlawfully kill a human being without justifi- 

cation or mitigation, which intention, how- 

ever, must exist at the time of the killing as 

alleged, but it is not necessary for that inten- 

tion to have existed for any length of time 

before the killing. 

In legal contemplation a man may form the 

intention to kill a human being, do the killing 

instantly thereafter, and regret the deed as 

soon as it is done. In other words, murder is 

the intentional killing of a human being with- 

out justification or mitigation. 

Trial Transcript, 988, 996-97, 998-99. 

22. Whether a Sandstrom error can be held to be 

harmless remains an open question at this time. 

The Supreme Court expressly left open in Sand- 

strom the question of whether a burden-shifting 

jury instruction could ever be considered harm- 

less. 442 U.S. at 526-27, 99 S.CL. at 2460-61. 

The courts of this circuit have held that where 

the Sandstrom error is harmless beyond a rea- 

sonable doubt a reversal of the conviction is not 

warranted. See, e.g., Lamb v. Jernigan, 683 F.2d 

-..1332, 1342-43 (11th Cir.1982). In Connecticut 

"v. Johnson, — U.S. 103 S.Ct. 969, 74 

L.Ed.2d 823 (1983), the Supreme Court granted 

certiorari to resolve the question of whether a 

Sandstrom error could ever be considered 

harmless. Four Justices specifically held that 

the test of harmlessness employed by this cir- 

cuit—whether the evidence of guilt was so over- 

whelming that the erroneous instruction could 

not have contributed to the jury's verdict—was 

  

ble juror would have understood the in- 

struction either to relieve the prosecution 

of its burden of proof on an essential ele- 

ment of the crime or shift to the defendant 

the burden of persuasion on that element 

the conviction must be set aside unless the 

reviewing court can state that the error 

was harmless beyond a reasonable doubt. 

Lamb v. Jernigan, supra, Mason v. Balk- 

com, 669 F.2d 222 (5th Cir. Unit B 1982), 

cert. denied, — U.S. —, 103 S.Ct. 1260, 

75 L.Ed.2d 487 (1983). 

[32-34] Petitioner was convicted of 

armed robbery and malice murder: The 

offense of armed robbery under Georgia 

law contains three elements: (1) A taking 

of property from the person or the immedi- 

ate presence of a person, (2) by use of an 

offensive weapon, {3) with intent to commit 

theft.?? The offense of murder also con- 

tains three essential elements: (1) A homi- 

cide: (2) malice aforethought; and (3) un- 

lawfulness.’* See Lamb v. Jernigan, su- 

inappropriate. /d. 103 S.Ct. at 977. However, 

an equal number of justices dissented from this 

holding. /d. at 979 (Powell, J., joined by Burg- 

er. C.J., Rehnquist and O'Connor, J.J., dissent 

ing). The tic-breaking vote was cast by Justice 

Stevens who concurred in the judgment on jur- 

isdictional grounds. /d. at 978 (Stevens, J., con- 

curring in the judgment). . 

Because a majority of the Supreme Court had 

not declared the harmless error standard em- 

ployed in this circuit to be erroneous, the Elev- 

enth Circuit has continued to hold that Sand- 

strom errors may be analyzed for harmiessness. 

See Spencer v. Zant, 715 F.2d 1362 (11th Cir. 

1983). 

23. Georgia Code Ann. § 26-1902 (now codified 

at O.C.G.A. § 16-8—1) provides in pertinent 

part: 

(a) A person commits armed robbery when, 

with intent to commit theft, he takes property 

of another from the person or the immediate 

presence of another by use of an offensive 

weapon. 

24. Georgia Code Ann. § 26-1101 (now codified 

at O.C.G.A. § 16-5-1) defines the offense of 

murder as follows: 

(a) A person commits the offense of murder 

when he unlawfully and with malice afore: 

thought, either express or implied, causes the 

death of another human being. 

(b) Express malice is that deliberate intention 

unlawfully to take away the life of a fellow 

 



  

386 

pra; Holloway v. McElroy, 632 F.2d 605, 

628 (5th Cir.1980), cert. denied, 451 U.S. 

1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). 

The malice element, which distinguishes 

murder from_the lesser offense of volun- 

tary manslaughter, means simply the in- 

tent to kill in the absence of provocation. 

In Lamb v. Jernigan the court concluded 

that “malice, including both the intent com- 

ponent and the lack of provocation or justi 

fication, is an essential element of murder 

under Ga.Code Ann. § 26-1101(a) that Mul- 

laney and its progeny require the State to 

prove beyond a reasonable doubt.” 683 

F.2d at 1337. Since the intent to commit 

theft is an essential element of the offense 

of armed robbery, the State must also 

prove this element beyond a reasonable 

doubt. : 

In analyzing the jury instructions chal 

lenged in the present case to determine 

whether they unconstitutionally shift the 

burden of proof on the element of intent, 

the court has searched for prior decisions 

in this circuit analyzing similar language. 

These decisions, however, provide little 

guidance for they reach apparently oppo- 

site results on virtually identical language. 

In Sandstrom the Supreme Court invalida- 

ted a charge which stated that “[t]he law 

presumes that a person intends the ordi- 

nary consequences of his acts,” 442 U.S. at 

513, 99 S.Ct. at 2453. The Court held that 

the jury could have construed this instruc- 

tion as either creating a conclusive pre- 

sumption of intent once certain subsidiary 

facts had been found or shifting to the 

defendant the burden of persuasion on the 
element of intent. The Court held both 

such effects unconstitutional. Like the in- 
struction in Sandstrom, the instruction at 
issue in the present case stated that “the 

acts of a person of sound mind and discre- 

tion are presumed to be the product of the 

creature which is manifested by external cir- 
cumstances capable of proof. Malice shall be 
implied where no considerable provocation 
appears and where all the circumstances of 
the killing show an abandoned and malignant 
heart. 

25. In Frankiin the trial court charged the jury 
that: 

580 FEDERAL SUPPLEMENT 

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.” This presumption would ap- 

pear on its face to shift the burden of 

persuasion to the defendant. It does not 

contain the permissive language (intent 

“may be presumed when it would be the 

natural and necessary consequence of the 

particular acts.”) which the Lamb court 
ruled created only a permissive inference 

rather than a mandatory presumption. 

Rather, the instruction at issue here states 

that a person is presumed to intend the 

natural and probable consequences of his 

acts. On its face this instruction directs 

the jury to presume intent unless the de- 

~ fendant rebuts it. This would appear to be 

the sort of burden-shifting instruction con- 

demned by Sandstrom. This conclusion is 

supported by Franklin v. Francis, 720 

F.2d 1206 (11th Cir.1983) which held that 

language virtually identical to that involved 

in the present case ** violated Sandstrom. 

In that case the court declared: 

This is a mandatory rebuttable presump- 

tion, as described in Sandstrom, since a 

reasonable juror could conclude that on 
finding the basic facts (sound mind and 

discretion) he must find the ultimate fact 

(intent for the natural consequences of 

an act to occur) unless the defendant has 

proven the contrary by an undefined 

quantum of proof which may be more 
than “some” evidence. 720 F.2d at 1210. 

However, in Tucker v. Francis, 723 F.2d 

1504 (11th Cir.1984) another panel of the 

Eleventh Circuit, including the author of 

the Franklin opinion, reviewed language 

identical to that in Franklin and concluded 

that it created no more than a permissive 

inference and did not violate Sandstrom. 

The court in Tucker relied upon the fact 

[t]he acts of a person of sound mind and 

discretion arc presumed to be the product of 
the person’s will, but the presumption may be 
rebutted. A person of sound mind and discre- 
tion is presumed to intend the natural and 
probable consequences of his acts, but the 
presumption may be rebutted. 

Franklin v. Francis, 720 F.2d at 1210. 

 



  

McCLESKEY v. ZANT 387 
Clte as 580 F.Supp. 338 (1984) 

that the trial judge instructed the jury in 

other parts of his charge that criminal in- 

tent was an essential element of the crime 

and was a fact to be determined by the 

jury. The court also focused on the fact 

that the charge also stated that “a person 

will not be presumed to act with criminal 

intention, but the trier of fact, that is you 

the jury, may find such intention upon con- 

sideration of the words, conduct, demeanor, 

motive and all other circumstances connect- 

-ed with the act for which the accused is 

prosecuted.”, Tucker, supra, at 1517. Ex- 

amining the objectionable language in the 

context of the entire instruction under 

Cupp v.- Naughten, 414 U.S. 141, 94 S.Ct. 

396, 38 L.Ed.2d 368 (1973), the court con- 

cluded that the instruction would not un- 

constitutionally mislead the jury as to the 

prosecution's burden of proof. Tucker, su- 

pra, at 1517. The problem with this rea- 

soning is that the exact same instructions 

were contained in the charge given to the 

jury in Franklin v. Francis. See Frank- 

lin v. Francis, 720 F.2d at 1208 n. 2. This 

court can find no principled way of distin- 

guishing between the charges at issue in 

Franklin and in Tucker and can discern no 

reason why the charge in Franklin would 

create a mandatory rebuttable presumption 

while the charge in Tucker would create 

only a permissive inference. The Tucker 

court did not explain this inconsistency and 

in fact did not even mention Franklin. 

[35] The charge at issue in the present 

case is virtually identical to those involved 

in Franklin and in Tucker. This court is 

bound to follow Tucker ». Francis, which 

is the latest expression of opinion on this 

subject by this circuit. The court holds 

that the instruction complained of in this 

case, taken in the context of the entire 

26. The relevant portion of the prosecutor's argu- 

ment to the jury in favor of the death penalty is 

set forth below: 

Now, what should vou consider as you are 

deliberating the second time here, and | dont 

know what vou are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse be- 

ing exhibited during this trial by Mr. McCles- 

key? Have you obscrved any remorse exhibit- 

ed while he was testifying? 

charge to the jury, created only a permis- 

sive inference that the jury could find. in- 

tent based upon all the facts and circum- 

stances of the case and thus did not violate 

Sandstrom. Tucker v. Francis, supra. 

[36] Having held that the instruction 

was not unconstitutional under Sand- 

strom, there is no need to examine the 

issue of harmlessness. However, the court 

expressly finds that even if the challenged 

instructions violated Sandstrom, the error 

was harmless beyond a reasonable doubt. 

The jury had overwhelming evidence that 

petitioner was present at the robbery and 

that he was the only one of the robbers in 

the part of the store from which the shots 

were fired. The jury also had evidence 

that he aione of the robbers was carrying 

the type of weapon that killed Officer 

Schlatt. Finally, the jury had the testimo- 

ny of Ben Wright and Offie Evans that 

McCleskey had not only admitted killing 

Officer Schlatt but had even boasted of his 

act. Looking at the totality of the evidence 

presented and laying aside questions of 

credibility which are the proper province of 

the jury, this court cannot conclude that 

there is any reasonable likelihood that the 

intent instruction, even if erroneous, con- 

tributed to the jury's decision to convict 

petitioner of malice murder and armed rob- 

bery. Petitioner's Sandstrom claim is, 

therefore, without merit. 

V. CLAIM “L"—PROSECUTORIAL 

MISCONDUCT AT THE SENTENC- 

ING PHASE. 

[37] In this claim petitioner argues that 

the Assistant District Attorney improperly 

referred to the appellate process during his 

arguments to the jury at the sentencing 

phase of petitioner's trial.*® References to 

Have you observed any repentance by Mr. 

McCleskey, either visually as you look at him 

now or during the trial or during the time 

that he testified? Has he exhibited to you any 

sorrow, both visually or during the time that 

he was testifying? 

Have you seen any tears in his eyes for this 

act that he has done? 

| would also ask vou to consider the prior 

convictions that vou have had with you in the 

jury room, and particularly the one where he 

 



  

388 

the appellate process are not per se uncon- 
stitutional unless on the record as a whole 

it can be said that it rendered the entire 

trial fundamentally unfair. McCorquodale 
v. Balkcom, 705 F.2d 1553, 1556 (11th Cir. 

1983); Corn v. Zant, T08 F.2d 549, 557 

(11th Cir.1983). 

[38] The prosecutor's arguments in this 
case did not intimate to the jury that a 
death sentence could be reviewed or set 

aside on appeal. Rather, the prosecutor’s 
_argament referred to petitioner's prior 

crimifial record and the sentences he had 
received. The court cannot find that such 
arguments had the effect of diminishing 
the jury's sense of responsibility for its 
deliberations on petitioner's sentence. In- 
sofar as petitioner claims that the prosecu- 
tor's arguments were impermissible be- 

got three convictions. [ believe if you look at 
those papers carefully you are going to find, | 
think, on one of those he got three life sen- 
tences to begin with, and then there is a cover 
sheet where apparently that was reduced to . 
what, eighteen years or fifteen years or some- 
thing, which means of course, he went through 
the appellate process and somehow got it re- 
duced. 
Now, I ask you to consider that in conjunc- 
tion with the life that he has set for himself. 
You know, I haven't set his goals, you haven't 
set his goals, he set his own goals, and here is 
a man that served considerable periods of 
time in prison for armed robbery, just like 
Ben Wright said, you know, that is his profes- 
sion and he gets in safely, takes care of the 
victims, although he may threaten, them, and 
gets out safely, that is what he considers do- 
ing a good job, but of course you may not 
agree with him, but that is job safety. 
I don’t know what the Health, Education and 
Welfare or whatever organization it is that 
checks on job safety would say, but that is 
what Mr. Ben Wright considers his responsi- 
bility. 
Now, apparently Mr. McCleskey does not con- 
sider that his responsibility, so consider that. 
The life that he has set for himself, the di- 
rection he has set his sails, and thinking down 
the road, are we going to have to have anoth- 
er trial sometime for another peace officer, 
another corrections officer, or some innocent 
bystander who happens to walk into a store, 
or some innocent person who happens to be 
working in the store who makes the wrong 
move, who makes the wrong turn, that makes 
the wrong gesture, that moves suddenly and 
ends up with a bullet in their head? 
This has not been a pleasant task for me, and 
I am sure it hasn't been a pleasant task for 
you. I would have preferred that some of the 

580 FEDERAL SUPPLEMENT 

cause they had such an effect, the claim is 

without merit.” 

VI. CLAIM “B”"—TRIAL COURTS 
REFUSAL TO PROVIDE PETI- 
TIONER WITH FUNDS TO RE- 
TAIN HIS OWN EXPERT WIT- 

NESS. 

Petitioner contends that the trial court’s 

refusal to grant funds for the employment 
of a ballistics expert to impeach the testi 

mony of Kelley Fite, the State’s ballistics 

expert, denied him due process. This claim 
is clearly without merit for the reasons 
provided in Moore v. Zant, 722 F.2d 640 
(11th Cir.1983). 

[39,40] Under Georgia law the appoint- 
ment of an expert in a case such as this 

other Assistants downstairs be trying this 
case, | would prefer some of the others be 
right here now instead of me, and I figure a 
lot of you are figuring why did I get on this 
jury, why not some of the other jurors, let 
them make the decision. 
I don't know why you are here, but you are 
here and | have to be here. It has been 
unpleasant for me, but that is my duty. I 
have tried to do it honorably and I have tried 
to do it with justice. I have no personal 
animosity toward Mr. McCleskey, I have no 
words with him, | don't intend to have any 
words with him, but I intend to follow what 1 
consider to be my duty, my honor and justice 
in this case, and I ask you to do the same 
thing, that you sentence him to die, and that 
you find aggravating circumstances, both of 
them, in this case. 

Transcript at 1019-21. 

27. Although the point has not been argued by 
either side and is thus not properly before the 
court, the prosecutor's arguments may have 
been impermissible on the grounds that they 
encouraged the jury to take into account the 
possibility that petitioner would kill again if 
given a life sentence. Such “future victims” 
arguments have recently been condemned by 
the Eleventh Circuit on the grounds that they 
encourage the jury to impose a sentence of 

death for improper or irrelevant reasons. See 
Tucker v. Francis, 723 F.2d 1504 (11th Cir.1984); 

Brooks 1. Francis, 716 F.2d 780 (11th Cir.1983); 

Hance v. Zant, 696 F.2d 940 (11th Cir.1983). 

The court makes no intimation about the merits 
of such an argument and makes mention of it 
only for the purpose of pointing out that it has 
not been raised by fully competent counsel. 

 



  

McCLESKEY vw. ZANT 389 

Cite as 580 F.Supp. 338 (1984) 

ordinarily lies within the discretion of the 

trial court. See Whitaker v. State, 246 Ga. 

163, 269 S.E.2d 436 (1980). In this case the 

State presented an expert witness to 

present ballistics evidence .that the bullet 

which killed Officer Schlatt was probably 

fired from a gun matching the description 

of the gun petitioner had stolen in an earli- 

er robbery and which matched the descrip- 

tion of the gun several witnesses testified 

the petitioner was ‘¢arrying on the day of 

the robbery at the Dixie Furniture Compa- 

ny. Petitioner had ample opportunity to 

examine the evidence prior to trial and to 

subject the expert t0'a thorough cross-ex- 

amination. Nothing in the record indicates 

that the expert was biased or incompetent. 

This court cannot conclude therefore that 

the trial court abused its discretion in deny- 

ing petitioner funds for an additional ballis- 

tics expert. 

CLAIM “D"—TRIAL COURTS 

INSTRUCTIONS REGARDING 

USE OF EVIDENCE OF OTHER 

CRIMES AT GUILT STAGE OF 

PETITIONER'S TRIAL. 

Petitioner claims that the trial court's 

instructions regarding the purposes for 

which the jury could examine evidence that 

petitioner had participated in other robber- 

ies for which he had not been indicted was 

overly broad and diminished the reliability 

of the jury's guilt determination. 

VIL 

[41,42] During the trial the prosecution 

introduced evidence that petitioner had par- 

ticipated in armed robberies of the Red Dot 

Grocery Store and the Red Dot Fruit 

Stand. At that time the trial judge cau- 

tioned the jury that the evidence was ad- 

mitted for the limited purpose of “aiding in 

the identification and illustrating the state 

of mind, plan, motive, intent and scheme of 

the accused, if in fact it does to the jury so 

do that.” The evidence tended to establish 

28. The relevant portion of the trial judge's in- 

structions to the jury were as follows: 

Now, ladies and gentlemen, there was cer: 

tain evidence that was introduced here, and | 

told you it was introduced for a limited pur- 

pose, and | will repeat the cautionary charge | 

gave you at that time. 

that petitioner had participated in earlier 

armed robberies employing the same mo- 

dus operandi and that in one of these rob- 

beries he had stolen what was alleged to 

have been the weapon that killed Officer 

Schlatt. Such evidence is admissible under 

Georgia law. Sec Hamilton v. State, 239 

Ga. 72, 235 S.E.2d 515 (1977). Petitioner 

objects that the trial court's instructions 

regarding the use of this evidence were 

overbroad because “(a) the prosecution it- 

self had offered the evidence of other 

transactions for the purpose of showing 

the identity of the accused rather than to 

show intent or state of mind, and (b) it is 

irrational to instruct that evidence of an 

accused's participation in another transac- 

tion where a murder did not occur is proba- 

tive of the accused’s intent to commit mal- 

ice murder.” Petitioner's Memorandum of 

Law in Support of Issuance of the Writ at 

10-11. Both of these contentions are with- 

out merit. First, the court sees nothing in 

the court's instructions to support petition- 

er’'s contention that the jury was allowed to 

find intent to commit malice murder from 

the evidence of the prior crimes. Petition- 

er was charged with armed robbery and 

murder. The evidence of the Red Dot Gro- 

_cery Store robbery was admissible for the 

purpose of showing that petitioner had sto- 

len the murder weapon. The evidence of 

the other armed robberies was ‘admissible 

for the purpose of showing a common 

scheme or plan on the armed robbery 

count. Also, the evidence of the Red Dot 

Fruit Stand robbery was admitted for im- 

peachment purposes only after the petition- 

er took the stand in his own defense. The 

court has read the trial court's instructions 

and cannot conclude that the instructions 

were overbroad or denied petitioner 2a fair 

trial. See Spencer vr. Texas, 385 U.S. 554, 

z00-61. 87 S.Ct. 648, 651-32, 17 L.Ed.2d 

606 (1967). 

[ told vou that in the prosecution of a particu- 

lar crime, evidence which in any manner 

tends to show that the accused has committed 

another transaction, wholly distinct, indepen- 

dent and separate from that for which he is 

on trial, even though it may show a transac. 

tion of the same nature, with similar methods 

 



    

CLAIM “E"—EVIDENCE OF 
NON-STATUTORY AGGRA- 
VATING CIRCUMSTANCES 
PRESENTED AT PENALTY 
STAGE OF PETITIONER'S TRI- 
AL. 

[43] Petitioner contends that the trial 

court erred by giving the jury complete, 
unlimited discretion to use any of the evi 
dence presented at the trial during its delib- 
erations regarding imposition of the death 
penalty. Petitioner's claim is without mer- 

580 FEDERAL SUPPLEMENT 

ing . whether or not the death penalty 

should be imposed. ._.s- 

Georgia's capital sentencing procedure 

has been declared constitutional by the Su- 

preme Court in Gregg v. Georgia, 428 us. 

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). 

Just recently the Supreme Court examined 

an argument similar to the one petitioner 

makes here in Zant v. Stephens, — U.S. 

—, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). 

In that case the Court dealt with the argu- 

ment that allowing the jury to consider any 

it. The trial judge specifically instruced ~Aaggravating circumstances once a statuto- 

the jury that it could not impose the death ~ Ty aggravating circumstance had been 

penalty unless it found at least one statuto- 

ry aggravating circumstance.” He also 
instructed the jury that if it found one or 
more statutory aggravating circumstances 

it could also consider any other mitigating 
or aggravating circumstances in determin- 

and in the same localities, it is admitted into 
evidence for the limited purpose of aiding in 
identification and illustrating the state of 
mind, plan, motive, intent and scheme of the 
accused, if, in fact, it does to the jury so do 
that. 
Now, whether or not this defendant was in- 
volved in such similar transaction or transac- 
tions is a matter for you to determine. Fur: 
thermore, if you conclude that the defendant 
was involved in this transaction or these 
transactions, vou should consider it solely 
with reference to the mental state of the de- 
fendant insofar as it is applicable to the 
charges set forth in the indictment, and the 
court in charging you this principle of law in 
no way intimates whether such transaction or 
transactions, if any, tend to illustrate the state 
of mind or intent of the defendant or aids in 
identification, that is a matter for vou to de- 
termine. 

Transcript at 992-93. 

29. The relevant portion of the judge's sentencing 
charge is printed below. The challenged por- 
tion is underlined. 

I charge you that in arriving at your deter- 

mination you must first determine whether at 
the time the crime was committed either of 
the following aggravating circumstances was 
present and existed beyond a reasonable 
doubt; one, that the offense of murder was 
committed while the offender was engaged in 
the commission of another capital felony, to 

rele 

rp 

wit, armed robbery; and two, the offense of ~ 
murder was committed against any peace offi- 
cer, corrections employee or fireman while 
engaged in the performance of his official 
duties. 

- » 

found allowed the jury unbridled discretion 

in determining whether or not to impose 

the death penalty on a certain class of. 

defendants. The Court stated: 

Our cases indicate, then, that statutory 
ae . . 

~ akgravating circumstances play a consti 

Now, if you find one or both of these aggra- 

vating circumstances existed beyond a rea- 

soanble doubt, upon consideration of the of- 

fense of murder, then you would be authoriz- 

ed to consider imposing a sentence of death 

relative to that offense. 

If you do not find beyond a reasonable 

doubt that one of the two of these aggravating 

circumstances existed with reference to the 

offense of murder, then you would not be 

authorized to consider the penalty of death, 

and in that event the penalty imposed would 

be imprisonment for life as provided by law. 

In arriving at vour determination of which 

penalty shall be imposed, vou are authorized 

to consider all of the evidence received here 

#30 cQurt, prescated bv the State and the defen: 

-" dape throughout the trial before vou. 

You should consider the facts and circum- 

stances in mitigation. Mitigating circum- 

stances are those which do not constitute a 

justification or excuse for the offense in ques 

tion, but which in fairness and mercy may be 

considered as extenuating or reducing the de- 

gree of moral culpability or blame. 

  

  

  

  

  

Now, it is not mandatory that vou impose 

the death penalty even if you should find one 

of the aggravating circumstances does exist or 

did exist. You couid only impose the death 

penalty if you do find one of the two statutory 

aggravating circumstances | have submitted 

to you, but if you find one to exist or both of 

them to exist, it is not mandatory upon you to 

impose the death penalty. 

Transcript, 1027-29. 

 



  

McCLESKEY v. ZANT 391 
Cife as 580 F.Supp. 338 (1984) 

tutionally necessary function at the 

stage of legislative definition: They cir- 

cumscribe the class of persons eligible 

for the death penalty. But the Constitu- 

tion does not require the jury to ignore 

other possible aggravating factors in the 

process of selecting, from among that 

class, those defendants who will actually 

be sentenced to death. What is impor- 

tant at the selection stage is an individ- 

walized determination on the basis of the 

character of the individual and the cir- 

cumstances of the crime. Zant v. Ste- 

phens, — U.S. —, 103 S.Ct. at 2743- 

44 [77 L.Ed.2d 235] (emphasis in origi- 

nal). 

The court specifically approved in Zant v. 

Stephens consideration by the jury of non- 

statutory aggravating circumstances, pro- 

vided that such evidence is not “constitu- 

tionally impermissible or totally irrelevant 

to the sentencing process, such as for ex- 

ample the race, religion or political affilia- 

tion of ‘the defendant.” Id. 103 S.Ct. at 

2747. = 

The sentencing jury in this case found 

two statutory aggravating circumstances: 

(1) That the offense of murder had been 

committed while McCleskey was engaged 

in the commission of another capital felony; 

and (2) that the offense of murder was 

committed against a peace officer while 

engaged in the performance of his official 

duties. “The trial judge could therefore 

properly admit any ‘additional evidence in 

extenuation, mitigation, and aggravation of 

punishment, including the record of any 

prior conviction,’ ... provided that the evi- 

dence bore on ‘defendant’s prior record, or 

circumstances of his offense,’” Moore v. 

Zant, 722 F.2d 640 at 644 (11th Cir.1983) 

30. A portion of the cross-examination was as 

follows: 

Q: Are you saving you were guilty or you 

were not guilty? 
A: Well, I was guilty on this. 
Q: Three counts of armed robbery? 

A: Pardon me? 

Q: You were guilty for the three counts of 

armed robbery? 
A: Yes sir. 

Q: How about the other two that you pied 

guilty to, were you guilty of those? 

(quoting Lockett v. Ohio, 438 U.S. 586, 604 

n. 12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 

973 (1978)). For the reasons stated in Zant 

v. Stephens, supra, and Moore v. Zant, 

supra, petitioner's claim is without merit. 

IX. CLAIM “F’—WHETHER THE 

ADMISSION AT PETITIONER'S 

TRIAL OF EVIDENCE CON- 

CERNING PRIOR CRIMES AND 

CONVICTIONS VIOLATED PETI- 

TIONER'S DUE PROCESS 

RIGHTS. 

Petitioner contends that the admission of 

evidence concerning two prior armed rob- 

beries for which he had not been indicted 

and the admission of details of other prior 

armed robberies for which he had been 

convicted violated his due process rights. 

This court has already concluded in Part 

VII, supra, that the evidence that petition- 

er participated in prior armed robberies 

was properly admitted to show petitioner's 

scheme, motive, intent or design and that 

the trial judge’s instructions properly limtif- 

ed the use of this evidence. See also” 

McClesky v. State, 245 Ga. 108, 114, 263 

S.E.2d 146 (1980). The evidence to which 

petitioner objects most strongly in Claim 

“F" eoncerns details of prior armed rob- 

beries for which petitioner had been con- 

victed. When petitioner took the stand in 

his own defense, he admitted on direct ex- 

amination that he had previously been con- 

viected of armed robbery. He admitted to 

being guilty of those crimes, gave the 

dates of the convictions and the sentences 

he had received. On cross-examination the 

Assistant District Attorney asked petition- 

er a number of questions concerning the 

details of those robberies.?® Petitioner con- 

tends that this questioning concerning the 

A: I was guilty on the Cobb County, but the 

others | was not guilty of, but I pleaded guilty 

to them anyway, because like I say, I didn't 

see no reason to go through a long process of 

fighting them, and I already had a large sen- 

tence. 

Q: So you are guilty for the Douglas County 

armed robberies and the Cobb County rob- 

bery, but not the Fulton County robbery? 

A: I pleaded guilty to it. 
Q: To the Fulton County? 

A: Sure, 

 



  

392 580 FEDERAL SUPPLEMENT 

details of crimes to which petitioner had In Beck v. Alabama, 447 U.S. 625, 100 

admitted guilt exceeded the bounds of what S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Su- 

was permissible for impeachment purposes, preme Court stated: 

was irrelevant to the crimes for which he 

was being tried, and served to prejudice the 

jury against him. The Supreme Court of 

Georgia has already declared that this evi- 

dence was properly admitted under the 

Georgia Rules of Evidence. Petitioner 

To insure that the death penalty is indeed 

imposed on the basis of “reason rather 

than caprice of emotion,” we have invali- 

dated procedural rules that tended to di- 

minish the reliability of the sentencing 

asks this court now to declare the Georgia determination. The same reasoning 

rule allowing the admissibility of this evi- ~ must apply to rules that diminish the 

dence to be violative of the due process reliability of the guilt determination. /d. 

clause of the Fourteenth Amendment. at 638, 100 S.Ct. at 2390. 

Q: But are you guilty of that robbery? A: Yes, sir. 

A: 1 wasn't guilty of it, but I pleaded guiity to Q: Were vou found inside the store on the 

it. ; floor with a .32 caliber revolver? 

Q: But you were guilty in all of the robberies A: Yes, sir, they caught me red-handed, 1 

in Cobb County and Douglas County, is that couldn't deny it. 

correct? Q: And did you arrive there with an automo- 

A: 1 have stated I am guilty for them, but for bile parked around the corner? 

the ones in Fulton County, no, I wasn't guiity A: 1 didn’t have an automobile. 

of it. 1 pleaded guilty to it because I didn't Q: Did that belong to Harold McHenry? 

see no harm it could do to me. ag A: McHenry had the automobile. 
Q: Now, one of those armed robberies in Q: And was he with you in the robbery? 

Douglas County, do you recall where that A: Yes. sir. 4 : 
; > i 

Yeu win ; Q: And was that automobile parked around 

Ed piace: the corner with the motor running? 
Qr- Yes, sir. : ros ; ; 

‘ A: At that time I don’t know exactly where it 
A: | know it was a loan company. heh % 

. ’ was parked because I didn't get out right there 

Q: Kennesaw Finance Company on Broad around the corner, I got out of the street from 
Street, is that about correct? *h un : = Ding d 10 tick 

A: That sounds familiar. oe Be vg e was os h of Jo as up 

Q: And did you go into that place of business TY # there, but unfortunately ne cidn1 make 
: : . 11. 

at approximately closing time? ; : : 
Q: You also have been convicted out in De- 

A: 1 would say yes. ' 5 

Q: Did you tie the manager and the—the Kalb County, haven't you: 
A: Yes, sir, | entered a plea out there. All of 

managers up? 
A: No, I didnt do thal. those charges stem from 1970. 

Q: What did you plead guilty to out in De- 
Did somebody tie them up? 

Kalb County? 
Yes, sir. 

Q: 
A: 

Q: Did they curse those people? A: Robbery charge. 

A: Did they curse them? Q: Armed robbery? 

Q: Yes, sir. J A: Yes, sir. 

A: Not to my recollection. po a .  Q: And where was that at, sir? 

Q: Did they threaten to kill those people? = A: 1 don't know—I don't remember exactly 

A: Not to my recollection. where the robbery was supposed to have took 

Q: Did somebody else threaten to kill them? place, but I remember entering a guilty plea 

A: 1 don't remember anybody making any to it. 

threats. vaguely remember the incident, but Q: Were you guilty of that? 

I don't remember any threats being issued A: No, sir, I wasn't guilty of it. Like I said, | 

out. had spent money on top of money trying to 

Q: Now, the robbery in Cobb County, do you fight these cases and I didn't see any need to 

remember where that might have been. continue to fight cases and try to win them. 

A: Yes, sir, that was at Kennesaw Finance, | and | have already got a large sentence any- 

believe. way. 

Q: And do you remember what time of day Q: 1 believe the DeKalb County case was out 

that robbery took place? at the Dixie Finance Company out in Litho- 

A: 1f I am not mistaken, [ think it was on the nia, is that correct? 

23rd day of July. A: I don't really recollect. 1 do remember 

Q: 1970? the charge coming out, but [ don't recall ex- 

A: Right. actly what place it was. 

Q: About 4:30 p.m.? Transcript 845-849. 

 



  

McCLESKEY v. ZANT 393 
Cite as 580 F.Supp. 338 (1984) 

In Beck the Supreme Court struck down an 

Alabama statute which prohibited a trial 

judge from instructing the jury in a murder 

case that it could find the defendant guilty 

of a lesser-included offense. The Court 

ruled that this statute distorted the fact- 

finding function of the jury. “In the final 

analysis the difficulty with the Alabama 

statute is that it interjects irrelevant con- 

siderations into the factfinding process, di- 

verting the jury’s attention from the cen- 

tral issue of whether the State has satisfied 

its burden of proving beyond a reasonable 

- doubt that the defendant is guilty of 2 

capital crime.” Jd. at 642, 100 S.Ct. at 

2392. 

In Green v. Georgia, 442 US. 95, 99 

S.Ct. 2150, 60 L.Ed.2d 738 (1979) the Su- 

preme Court set aside a death sentence on 

the grounds that the state trial court had 

excluded certain hearsay testimony at the 

sentencing portion of petitioner's trial. In 

that case the Court stated: 

Regardless of whether the proffered tes- 

timony comes within Georgia's hearsay 

rule, under the facts of this case its 

exclusion constituted a violation of the 

Due Process Clause of the Fourteenth 

Amendment. /d. at 96, 99 S.Ct. at 2131. 

[44] It seems clear from these cases 

that a state procedural or evidentiary rule 

which might substantially diminish the reli- 

ability of the factfinding function of the 

jury in a capital case would violate the due 

process clause of the Fourteenth Amend- 

ment. The question, then, is whether or 

not the admissibility of the details of other 

crimes can be said to have had the effect of 

diminishing “the reliability of the guilt de- 

termination.” Petitioner has cited several 

cases from this and other circuits which 

have held that the admission in a federal 

prosecution of details of prior crimes to 

which the defendant had admitted guiit 

was unfairly prejudicial and constituted re- 

versible error. See, e.g., United States v. 

Tumblin, 551 F.2d 1001 (5th Cir.1977); 

United States v. Harding, 525 F.2d 84 (Tth 

Cir.1975) (“The rule that it is error to in- 

quire about the details of prior criminal 

conduct is so well established that such 
580 F.Supp. — 11 

error is cognizable despite the absence of 

any objection by defense counsel.”). The 

point petitioner has overlooked is that pros- 

ecutions in federal court are governed by 

the Federal Rules of Evidence. Each of 

the cases petitioner has cited rely to a 

greater or lesser extent upon an interpreta- 

tion of those rules. While the Federal 

Rules of Evidence embody a modern con- 

cept of fairness and due process, it is not 

for this court to say that they are the only 

embodiment of due process or the standard 

against which state rules of evidence must 

be judged. While the evidence presented 

at petitioner's trial would probably not 

have been admitted in a federal prosecu- 

tion, this court cannot conclude that it was 

so seriously prejudicial that it undermined 

the reliability of the jury’s guilt determina- 

tion. Petitioner's Claim “F” is therefore 

without merit. 

X. CLAIM “M”"—THE SUGGESTIVE 

LINEUP. 

[45] In this claim petitioner contends 

that he was shown to at least three wit 

nesses for the State in an illegal and highly 

suggestive display immediately prior to his 

trial without the knowledge, consent, or 

presence of defense counsel. The Supreme 

Court of Georgia thoroughly addressed this 

concern and found against petitioner. 

McClesky v. State, 245 Ga. 108, 110-12, 263 

S.E.2d 146 (1980). In its discussion the 

Supreme Court of Georgia stated: 

The record shows that four witnesses 

immediately prior to the call of the case 

saw the appellant and four other persons 

sitting in the jury box guarded by deputy 

sheriffs. - Each of these witnesses testi- 

fied that they recognized the appellant as 

one of the robbers at the time they saw 

him seated in the jury box. There is no 

indication that the witnesses were asked 

to view the man seated in the jury box 

and see if they recognized anyone. No 

one pointed out the appellant as the de- 

fendant in the case, rather it is apparent 

from the witnesses’ testimony that each 

recognized the appellant from having 

viewed him at the scene of the respective 

»- — Eva 

 



  

394 

robberies. Therefore, no illegal post-in- 
dictment lineup occurred. ... 

Appellant argues further that the four 
witnesses viewing him in the jury box as 
he awaited trial along with police identifi- 
cation procedures impermissibly tainted 
the witnesses’ in-court identification of 

the appellant. 

The threshold inquiry is whether the 
identification procedure was impermissi- 
bly suggestive. Only if it was, need the 
court consider the second question: 
Whether there was a substantial likeli- 

hood of irreparable misidentification. ... 

The chance viewing of the appellant prior 
to trial as he sat with others was no - 

more suggestive than seeing him in the 

hall as he and other defendants are being 
brought in for trial, or seeing him seated 

at the defense table as each witness 
comes in to testify. We conclude that 
the chance viewing of the appellant im- 
mediately prior to trial by four of the 

State’s witnesses was not impermissibly 
suggestive. Also we find the identifica- 

tions were not tainted by police identifi- 
cation procedures. 245 Ga. at 110, 263 
S.E.2d 146. 

Although the eourt found that the display 

was not impermissibly suggestive, the 

court went on to examine whether the in- 

court identifications were reliable and 
found that they were. This court finds no 

basis in the record or in the arguments 

presented by petitioner for concluding that 

the Supreme Court of Georgia was in error. 
The court therefore finds that petitioner's 

Claim “M” is without merit. 

XI. CLAIM “N"—WHETHER PETI- 
TIONER’S STATEMENT INTRO- 
DUCED AT TRIAL WAS FREELY 
AND VOLUNTARILY GIVEN AF- 
TER A KNOWING WAIVER OF 
PETITIONER'S RIGHTS. 

[46] In this claim petitioner contends 

that the admission at trial of his state- 

ments given to the police was error be- 

cause the statements were not freely and 

voluntarily given after a knowing waiver of 

rights. Before the statement was revealed 

to the jury the trial court held, outside of 

580 FEDERAL SUPPLEMENT 

the presence of the jury, a Jackson v. Den- 

no hearing. The testimony at this hearing 

revealed that at the time he was arrested 

petitioner denied any knowledge of the Dix- 

ie Furniture Store robbery. He was de- 
tained overnight in the Marietta Jail. The 

next morning when two Atlanta police offi- 

cers arrived to transfer him to Atlanta they 
advised him of his full Miranda rights. 
He again denied any knowledge of the Dix- 
ie Furniture Store robbery. There was 
some dispute about what was said during 

the half-hour trip back to Atlanta. Peti- 

tioner claimed that the officers told him 

that his co-defendants had implicated him 
and that if he did not start talking they 
would throw him out of the car. The offi- 

cers, of course, denied making any such 
threat but did admit that they told petition- 
er that the other defendants were “trying 
to stick it on” him. The officers testified 
that during the trip back, after being fully 

advised of his Miranda rights and not be- 
ing subjected to any coercion or threats, 

petitioner admitted his full participation in 

the robbery but denied that he shot Officer 

Schlatt. 

Immediately upon arrival at the Atlanta 

Police Department petitioner was taken to 
Detective Jowers. At that time petitioner 

told Jowers that he was ready to talk. 

Detective Jowers had petitioner execute a 
written waiver of counsel. This waiver 

included full Miranda warnings and a 

statement that no threats or promises had 

been made to induce petitioner's signature. 

Petitioner's statement was then taken over 

the next several hours. During the first 

part of this session petitioner simply nar- 

rated a statement to a secretary who typed 

it. The secretary testified that petitioner 

was dissatisfied with the first draft of the 

statement and started another one. The 

first draft was thrown away. 

After petitioner finished his narration 

Detective Jowers proceeded to ask him a 

number of questions about the crime. This 

questioning went on for some time off the 

record. Finally, a formal question and an- 

swer session was held on the record. 

These questions and answers were typed 

up by the secretary and signed by petition- 

er. 

 



  

McCLESKEY v. ZANT 395 
Clte as 580 F.Supp. 338 (1984) 

It is undisputed that the atmosphere in 

the room where the statement was being 

taken was unusually relaxed and congenial, 

considering the gravity of the crime of 
which petitioner was accused. The secre- 

tary who typed it testified that she had 

never seen the police officers treat a mur- 
der suspect with such warmth.™ 

After hearing all of the testimony and 
considering petitioner's argument that the 
police had engaged in a “Mutt and Jeff” 
routine,” the trial court ruled that the 
statement had been freely and voluntarily 
given after a knowing waiver of petition- 
er's Miranda rights. The jury was then 
returned and the statement and testimony 
were introduced. 

After having read the transcript of the 
proceedings this court cannot conclude that 
the trial judge erred in his finding that the 
statement was freely and voluntarily given. 

There was no error, therefore, in admitting 

the statement into evidence. Petitioner's 
Claim “N” is therefore without merit. 

31. The officers gave petitioner cigarettes, potato 
chips, and soft drinks during the interrogation. 

"They also at one point discussed with him the 
attractiveness of a particular female officer. 

32. Such routines involve one group of officers 
acting hostile and threatening toward the de- 
fendant while another officer or group of offi 
cers seemingly befriends him and showers him 
with kindness. The rationale for such routines 
is that defendants often believe they have found 
a friend on the police force to whom they can 
tell their story. 

33. The examination of Miss Barbara J. Weston 
.. was as follows: 

Fer . cas 
J: Now, Miss Weston, are you conscientious- 

ly opposed to capital punishment? 
A: Yes 
Q: Your opposition towards capital punish- 
ment, would that cause you to vote against it 
regardless of what the facts of the case might 
be? 
A: Yes, I would say so, because of the doc- 
trine of our church. We have a manual that 
we go by. 
Q: Does your church doctrine oppose capital 
punishment? 
A: Yes, 

Q: So you would oppose the imposition of 
capital punishment regardless of what the 
facts would be? 

CLAIM “O"—EXCLUSION OF 
DEATH-SCRUPLED JURORS. 

Petitioner claims that the exclusion of 
two prospective jurors because of their op- 
position to the death penalty violated his 
Sixth Amendment rights under Wither- 

spoon v. Illinois, 391 U.S. 510, 83 S.Ct. 
1770, 20 L.Ed.2d 776 (1968). Both jurors 
indicated that they would not under any 
circumstances consider the death penalty. 

XIIL 

[47] In Witherspoon v. Illinois, supra, 
the Supreme Court held that a person could 
not be sentenced to death by a jury from 

which persons who had moral reservations 
about the death penalty had been excluded, 

unless those persons had indicated that 
their opposition to the death penalty would 
prevent them from fulfilling their oaths as 
jurors to apply the law: a AE 

[Nothing we say today bears upon the 
power of a State to execute a defendant 
sentenced to death by a jury from which 

the only veniremen who were in fact 

excluded for cause were those who made 
unmistakably clear (1) that they would 

A: Yes. 
Q: You would not even consider that as one 
of the alternatives? 
A: No, I wouldn't. 
The Court: Mr. Turner, any questions you 
want to ask? 
Mr. Turner: No questions from me. 
The Court: Miss Weston, [I will excuse you 
from this case. 

Transcript 98-99. 
The testimony of Emma T. Cason was as 

follows: 
Q: Mrs. Cason, are you conscientiously op- 
posed to capital punishment? 
A: Yes. 

Q: You are? 

A: Yes. 

Q: If you had two aiternatives in a case as 
far as penalties go, that is, impose the death 
sentence or life penalty, could you at least 
consider the imposition of the death penaity? 
A: 1 don’t think so, no. I would have to say 
no. 
Q: Under any circumstances you would not 
consider it? 
A: No. 

Mr. Parker: Thank you. 
The Court: Any questions? 
Mr. Turner: No questions. 

The Court: Mrs. Cason, | will excuse you and 
let you return to the jury assembly room on 
the fourth floor. 

Transcript 129-30. 

 



  

396 

automatically vote against the imposi- 

tion of capital punishment without re- 

gard to any evidence that might be devel- 

oped at the trial of the case before them, 

or (2) that their attitude toward the death 

penalty would prevent them from mak- 

ing an impartial decision .as to the de- 

fendant’s guilt. 391 US. at 522-23 n. 

21, 88 S.Ct. at 1776-77 n. 21 (emphasis in 

original). 

Since the two prospective jurors in this 

case indicated that they would not under 

any circumstances vote for the death penal- 

ty, the trial court committed no error in 

excluding them. See Boulden v. Holman, 

394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 

(1969). : 

[48] Petitiogey’s argument that the ex- 

clusion of death-scrupled jurors violated his 

right to be tried by a jury drawn from a 

representative cross section of his commu- 

nity has already been considered and re- 

jected in this circuit. Smith v. Balkcom, 

660 F.2d 573, 582-83 (5th Cir. Unit B 1981), 

cert. denied, 459 U.S. 882, 103 S.Ct. 181, 

74 L.Ed.2d 148 -(1982); Spinkellink wv. 

Wainwright, 578 F.2d 582, 593-99 (5th Cir. 

1978), cert. denied, 440 U.S. 976, 99 S.Ct. 

1548, 539 L.Ed.2d 796, rek'g denied, 441 

U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 

(1979). The Court in Spinkellink also re- 

jected petitioner's claims that the exclusion 

of death-scrupled jurors resulted in a prose- 

cution-prone jury or a jury that was incapa- 

ble of maintaining “a link between contem- 

porary community values and the penal 

system.” 578 F.2d at 593-99. See gener- 

ally, Woodson v. North Carolina, 428 Us. 

280, 295, 96 S.Ct. 2978, 2987, 49 L.Ed.2d 

944 (1976). 

Because the two prospective jurors indi- 

cated they would not consider the death 

penalty under any circumstances, they 

were properly excluded, and petitioner's 

Claim “OQ” is without merit. 

XIII. CLAIM “I"—PETITIONER’S 
CLAIM THAT THE DEATH 
PENALTY FAILS TO SERVE 
RATIONAL INTERESTS. 

In his petition for the writ petitioner 

raised a claim that the death penalty fails 

580 FEDERAL SUPPLEMENT 

to serve rational interests. Neither peti- 

tioner nor the State has briefed this issue, 

but the premise appears to be that the 

supposed deterrent value of the death pen- 

alty cannot be demonstrated; that execu- 

tions set socially-sanctioned examples of 

violence; that public sentiment for retribu- 

tion is not so strong as to justify use of the 

death penalty; and that no penal purpose is 

served by execution which cannot be more 

effectively served by- lifé imprisonment. 

Such arguments are more properly ad- 

dressed to the political bodies. See Fur- 

man v. Georgia, 408 U.S. 238, 410, 92 S.Ct. 

2726, 2814, 33 L.Ed.2d 346 (1972) (Black- 

mun, J., dissenting). Georgia's death pen- 

alty was declared constitutional in Gregg v. 

Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 

2029 49 L.Ed.2d 859 (1976). Petitioner’s 

Claim “I” is therefore without merit. 

XIV. CLAIM “Q’'—PETITIONER'S 

BRADY CLAIM. : 

Petitioner contends that prior to trial de- 

fense counsel filed a Brady motion seek- 

ing, inter alia, statements he was alleged 

to have been made and that the State failed 

to produce the statement that was alleged 

to have been made to Offie Evans while in 

the Fulton County Jail. Petitioner con- 

tends that this failure to produce the state- 

ment prior to trial entitles him to a new 

trial. 

[49,30] Brady v. Maryland, 373 U.S. 

83 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) 

requires the prosecution to produce any 

evidence in its possession which would tend 

to be favorable or exculpatory to the de- 

fendant. However, Brady does not estab- 

lish any right to pretrial discovery in a 

criminal case, but instead seeks only to 

insure the fairness of a defendant's trial 

and the reliability of the jury's determina- 

tions. United States v. Beasley, 576 F.2d 

626 (5th Cir.1978), cert. denied, 440 U.S. 

947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). 

Thus, a defendant who seeks a new trial 

under Brady must meet three require- 

 



  

McCLESKEY v. ZANT 397 
Cite as 580 F.Supp. 338 (1984) 

ments to establish a successful claim: “(1) 

The prosecutor's suppression of the evi- 

dence, (2) the favorable character of the 

suppressed evidence for the defense, and 

(3) the materiality of the suppressed evi- 

dence.” Martinez v. Wainwright, 621 
F.2d 184 (5th Cir.1980); United States v. 

Preston, 608 F.2d 626, 637 (5th Cir.1979), 

cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 

64 L.Ed.2d 794 (1980); United States v. 

Delk, 586 F.2d 513, 518 (5th Cir.1978). 

[51] As a preliminary tnatter the court 

notes that the’ testimony of Offie Evans 
was hardly favorable to petitioner. Most 
of the testimony was highly damaging to 
petitioner. The only part of the testimony. 
which could even remotely be regarded as 

favorable was Evans’ testimony that 

McCleskey had told him that his face had 

been made up on the morning of the rob- 

bery by Mary Jenkins. This testimony con- 

tradicted Mary Jenkins’ earlier testimony 

and thus had impeachment value against 
one of the State's witnesses. However, the 

very testimony that would have been im- 

peached was testimony favorable to peti- 

tioner. Jenkins’ testimony that petitioner 
had clear skin and no scar on the day of the 
crime contradicted the testimony of the 

store employees that the person in the 

front of the store had a rough, pimply 
complexion and a scar. Thus, Jenkins’ tes- 
timony regarding petitioner's complexion 

on the morning of the crime helped create 

doubt in his favor. Impeachment of that 

testimony would have hurt rather than 

helped petitioner. 

As a secondary matter, the court cannot 

see that the evidence in question was sup- 

pressed by the prosecution. While it was 

not produced prior to trial, it was produced 

during the trial. Thus, the jury was able 

to consider it in its deliberations. Petition- 

er has produced no cases to support the 
propositon that the failure of the prosecu- 

tion to produce evidence prior to trial en- 

titles him to a new trial where that evi- 

dence was produced during the trial. Since 

the evidence was before the jury, the court 

cannot find that the failure to disclose: it-- 

prior to trial deprived petitioner of due 

process. Petitioner's Claim “Q” is clearly 

without merit. 

XV. CLAIM “R”"—SUFFICIENCY OF 

THE EVIDENCE. 

By this claim petitioner contends that the 

evidence introduced at trial was insuffi- 

cient to prove beyond a reasonable doubt 

that he was the triggerman who shot Offi- 

cer Schiatt and that the shooting constitut- 

ed malice murder. . Petitioner does not ar- 

gue that the evidence was insufficient to 

support his conviction for armed robbery. 

[52] As part of its review in this case, 

the Supreme Court found that “the evi 

dence factually substantiates and supports 

the finding of the aggravating circumstanc- 

es, the finding of guilt, and the sentence of 

death by a rational trier of fact beyond a 

reasonable doubt.” McClesky v. State, 245 

Ga. 108, 115, 263 S.E.2d 146 (1980). In 

reviewing the. sufficiency of the evidence, 

this court must view the evidence in a light 

most favorable to the State and should 

sustain the jury's verdict unless it finds 

that no rational trier of fact could find the 

defendant guilty beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

Much of the evidence against petitioner 

was circumstantial. Witnesses placed him 

in the front of the store carrying a nickel- 

plated revolver matching the description of 

a .38 caliber Rossi which petitioner had 

stolen in an earlier armed robbery. The 

State’s ballistics expert testified that the 

bullet which killed Officer Schlatt was 

probably fired from a .38 caliber Rossi. At 

least one witness testified that the shots 

were fired from a point closer to the front 

of the store than she was lying. 

[53] While the circumstantial evidence 

alone may not have been sufficient to sup- 

port a verdict of malice murder, the State 

also introduced highly damaging testimony 

by one of the co-defendants, Ben Wright, 

and a fellow inmate at the Fulton County 

Jail, Offie Evans. Both of these witnesses 

testified that petitioner had admitted shoot- 

ing Officer Schiatt. Evans testified that 

 



  

398 

McCleskey told him that he would have 

shot his way out of the store even if there 

had been a dozen police officers. It is not 

this court's function to weigh the credibili- 

ty of this testimony. That was for the jury 

to do. Viewing all the evidence in a light 

most favorable to the State, this court can- 

not find that no rational trier of fact could 

find petitioner guilty beyond a reasonable 

doubt of malice murder. Jackson v. Vir- 

ginia, supra. Petitioner's Claim “R” is 

therefore without merit. 

XVI. CLAIM “P’—INEFFECTIVE AS- 
SISTANCE OF COUNSEL. 

‘By this claim petitioner contends that he 

was denied effective assistance of counsel 

in contravention of the Sixth and Four- 

teenth Amendments. He alleges that his 

counsel was ineffective for the following 

reasons: (1) That his attorney failed to 

investigate adequately the State's evidence 

and possible defenses prior to trial; (2) that 
during the trial counsel failed to raise cer- 
tain objections or make certain motions; (3) 

that prior to the sentencing phase of peti- 

tioner's trial counsel failed to undertake an 
independent investigation into possible miti- 
gating evidence and thus was unable to 
offer any mitigating evidence to the jury; 

and (4) that after the trial, counsel failed to 

review and correct the judge's sentence 

report. 

[54-537] - It is well established in this cir- 

cuit that a criminal defendant is entitled to 

effective assistance of counsel—that Is, 

“counsel reasonably likely to render and 

rendering reasonably effective assistance.” 

See, e.g., Washington v. Strickland, 693 

F.2d 1243, 1250 (5th Cir. Unit B, 1982) (en 

bane), cert. granted, — U.S. ——, 103 

S.Ct. 2451, 77 L.Ed.2d 1332 (1983); Gaines 

v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 
1978); Herring v. Estelle, 491 F.2d 125, 

127 (5th Cir.1974); MacKenna v. Ellis, 280 

F.2d 592, 599 (5th Cir.1960), cert. denied, 

368 US. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 

(1961). However, the Constitution does not 

guarantee errorless counsel or counsel 

judged ineffective only by hindsight. Her- 

ring v. Estelle, supra. In order to be 

580 FEDERAL SUPPLEMENT 

entitled to habeas corpus relief on a claim 

of ineffective assistance of counsel, peti 

tioner must establish by a preponderance 

of the evidence: (1) That based upon the 

totality of circumstances in the entire record 

his counsel was not “reasonably likely to 

render” and in fact did not render ‘‘reasona- 

bly effective assistance,” and (2) that “inef- 

fectiveness of counsel resulted in actual and 

substantial disadvantage to the course of 

his defense.” Washington v. Strickland, 

693 F.2d 1243, 1262 (5th Cir. Unit B 1982) 

(en banc). Even if petitioner meets this 

burden, habeas corpus relief may still be 

denied if the State can prove that “in the 

context of all the evidence ... it remains 

certain beyond a reasonable doubt that the 

outcome of the proceedings would not have 

been altered but for the ineffectiveness of 

counsel.” Id. With these standards in 

mind the court now addresses petitioner's 

particular contentions. 

A. Pretrial Investigation. 

It is bevond dispute that effective assist- 

ance of counsel requires some degree of 

pretrial investigation. “Informed evalua- 

tion of potential defenses to criminal 

charges and meaningful discussion with 

one's client of the realities of his case are 

cornerstones of effective assistance of 
counsel.” Gaines v. Hopper, 515 F.2d 
1147, 1149-50 (5th Cir.1978). In Wash- 

ington v. Strickland, 693 F.2d 1243 (5th 

Cir. Unit B 1982) (en bane), the court dis- 

cussed the extent of pretrial investigation 

required to constitute effective assistance 
of counsel. In that case the court stated: 

The amount of pretrial investigation that 

is reasonable defies precise measure- 

ment. It will necessarily depend upon a 

variety of factors including the number 

of issues in the case, relative complexity 

of those issues, the strength of the 

government's case, and the overall strat- 

egy of trial counsel.... In making that 

determination, courts should not judge 

the reasonableness of counsel's efforts 

from the omniscient perspective of hind- 

sight, but rather “from the perspective 

of counsel, taking into account all of the 

circumstances of the case, but only as 

 



  

McCLESKEY v. ZANT 399 
Cite as 580 F.Supp. 338 (1984) 

those circumstances were known to him 

at the time in question.” Id. at 1251 

(quoting Washington v. Watkins, 655 

F.2d 1346 at 1356 [5th Cir. Unit A 1981]). 

The court went on to analyze a variety of 

cases falling into five general categories. 

The category of cases identified by the 

Washington court which most closely re- 

sembles the present case was the one in 

which “counsel fails to conduct a substan- 

tial investigation into one plausible line of 

defense because of his reasonable strategic 

choice to rely upon another plausible line of 

defense at trial.” In analyzing these cases 

the court stated: 

those lines of defense upon which he has 

chosen to rely. 

The choice by counsel to rely upon cer- 

tain lines of defense to the exclusion of 

others before investigating all such lines 

is a strategic choice. 

A strategy chosen without the benefit of 

a reasonably substantial investigation 

into all plausible lines of defense is gen- 

erally based upon counsel's professional 

assumptions regarding the prospects for 

success offered by the various lines. 

The cases generally eonform to a worka- 

ble and sensible rule: When counsels 

assumptions are reasonable, given the 

As observed above, when effective coun- 

sel would discern several plausible lines 

of defense he should ideally perform a 

substantial investigation into each line 

before making a strategic decision as to 

which -lines he will employ at trial. In 

this ideal, as expressed in the American 

Bar Association's Standards, is an aspira- 

tion to which all defense counsel should 

strive. It does not, however, represent 

the constitutional minimum for reason- 

ably effective assistance of counsel. ... 

Realistically, given the finite resources 

of time and money that are available to 

defense counsel, fewer than all plausible 

lines of defense will be the subject of 

substantial investigation. Often, counsel 

will make a choice of trial strategy rela 

tively early in the representation process 

after conferring with his client, review- 

ing the State's evidence, and bringing to 

bear his experience and professional 

judgment. Thereafter, he will constitute 

his finite resources on investigating 

34. The five categories of cases dealing with 

claims of ineffective assistance of counsel in the 

pretrial investigation were: (1) counsel fails to 

conduct substantial investigation into the onc 

plausible line of defense in the case: (2) counsel 

conducts a reasonably substantial investigation 

into the one line of defense that is presented at 

trial: (3) counsel conducts a reasonably sub- 

stantial investigation into all plausible lines of 

defense and chooses to rely upon fewer than all 

of them at trial; (4) counsel fails to conduct a 

substantial investigation into one plausible linc 

of defense because of his reasonable strategic 

choice to rely upon another plausible line of 

defense at trial; and (35) counsel fails to conduct 

totality of the circumstances and when 

counsel's strategy represents a reasona- 

ble choice based upon those assumptions, 

counsel need not investigate lines of de- 

fense that he has chosen not to employ at 

trial. 693 F.2d at 1254-55. 

[58] In the present case petitioner's tri- 

al counsel was faced with two plausible 

lines of defense—an alibi defense or a de- 

fense that petitioner participated in the rob- 

bery but was not the triggerman who killed 

Officer Schlatt. Pursuing the second de- 

fense would almost have guaranteed a con- 

viction for armed robbery and felony mur- 

der, for which petitioner could still have 

received the death penalty or at least life 

imprisonment.’ On the other hand, a suc- 

cessful alibi defense offered the prospect 

of no punishment at all. Trial counsel tes- 

tified at the state habeas corpus hearing 

that McCleskey had repeatedly insisted 

that he was not present at the crime. Trial 

counsel also testified that after the prelimi- 

nary hearing he and McCleskey reasonably 

a substantial investigation into plausible lines of 

defense for reasons other than strategic choice. 

35. Under Georgia law applicable at the time of 

petitioner's trial, petitioner, as a party to the 

crime of armed robbery, would have been sub- 

ject to the same penalty for the death of Officer 

Schiatt irrespective of whether he actually 

pulled the trigger. See Ga.Code Ann. § 26-801 

(now codified at 0.C.G.A. § 16-2-21). Under 

Georgia law at the time both murder and felony 

murder were punishable by death or life impris- 

onment. Ga.Code Ann. § 26-1101 (now codi- 

fied at O.C.G.A. § 16-5-1). 

 



  

400 

believed that an alibi defense could be suc- 

cessful. A primary reason for this belief 

was that Mamie Thomas, one of the Dixie 

Furniture Mart employees who was up 

front when the robber came in and had an 

opportunity to observe him, was unable to 

identify McCleskey at the preliminary hear- 

ing, despite the fact that she was standing 

only a few feet from him. Given the con- 

tradictory descriptions given by the wit- 

nesses at the store, the inability of Mamie 

Thomas to identify petitioner, and petition- 

er's repeated statements that he was not 

present at the scene, and the possible out- 

come of pursuing the only othex -defgnse 

available, the court cannot say that trial 

counsel's decision to pursue the alibi de- 

fense was unreasonable or constituted inef- 

fective assistance of counsel. 

[59] Having made a reasonable strate- 

gic choice to pursue an alibi defense, trial 

counsel could reasonably have decided not 

to interview all of the store employees. 

None of the statements produced by peti- 

tioner indicates that these employees would 

have contradicted the State's theory of the 

case. At best, they might have cumulative- 

ly created a reasonable doubt as to whether 

petitioner was the triggerman. This, how- 

ever, was a defense counsel and petitioner 

had chosen not to pursue. Counsel had 

read their statements and concluded that 

none. of . these employees could. identify 

McCleskey=as the gunman who entered the 

front of the store. He also had the sworn’ 

testimony of at least one witness that 

McCleskey was definitely not the person 

who entered the front of the store. Under 

such circumstances the failure to interview 

the store employees was reasonable. See 

Washington v. Watkins, 655 F.2d 1346 (5th 

Cir. Unit A 1981), cert. denied, 456 U.S. 

949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) 

(failure to interview in person the only eye 

36. Although Mamie Thomas recanted her testi- 

mony immediately after the preliminary hear- 

ing, telling one of the detectives that she had 

lied because she was scared, and a later inter- 

view with her may have disclosed the change of 

testimony, this court cannot hold as a matter of 

law that counsel has a duty to disbelieve sworn 

testimony of a witness favorable to his client. 

530 FEDERAL SUPPLEMENT 

witness to an armed robbery and murder 

not ineffective assistance of counsel where 

client was asserting an alibi defense and 

telephone interview had established that 

witness could not identify or describe the 

gunman). 

[60] Slightly more troubling than the 

failure to interview the witnesses at the 

store was counsel's failure to interview the 

sheriff’s deputies and Offie Evans prior to 

trial. Evans’ testimony was certainly very 

damaging to petitioner, and a pretrial in- 

vestigation as to what his testimony would 

be may have uncovered the ‘details of his 

escape from a halfway house and the pend- 

ing federal charges against him, his 

“understanding” with an Atlanta police de- 

tective, his history of drug use, and his ° 

imaginative story that he had gone to Flori- 

da and participated in an undercover drug. 

investigation during his escape. Discovery 

of such evidence would have had substan- 

tial impeachment value. However, this 

court cannot find on the facts before it that 

counsel acted unreasonably in failing to 

interview Evans prior to trial. Although 

he recognized that at least one of the 

names in the prosecution's witness list was 

a Fulton County Sheriff's Deputy and sus- 

pected that a jailhouse confession might be 

forthcoming, counsel testified that McCles- 

key told him that he had made absolutely 

no incriminating statements to anyone in 

the Fulton County Jail. There has been no 

allegation that petitioner was incompetent 

or insane at any time during this proceed- 

ing. It would be anomalous, then, for this 

court to grant petitioner habeas corpus re- 

lief on the grounds that petitioner's counsel 

was ineffective because he did not disbe- 

lieve petitioner and undertake an indepen- 

dent investigation. 

[61] 

his counsel 

petitioner contends that 

ineffective because he 
Finally, 

was 

In other words, counsel could reasonably be- 

lieve that the witness's testimony at trial would 

be substantially the same as it was at the prelim: 

inary hearing. When it turned out to be differ- 

ent, counsel took the proper step of impeaching 

her later testimony with her testimony at the 

preliminary hearing. 

 



  

McCLESKEY v. ZANT 401 
Clte as 580 F.Supp. 338 (1984) 

failed to interview the State’s ballistics ex- 
pert, Kelly Fite. However, a similar claim 
was rejected on similar facts in Wash- 

ington v. Watkins, 655 F.2d at 1358. Peti- 

tioner’s counsel had read the expert's re- 

port and was prepared adequately to cross- 

examine the expert at trial. The court does 

not believe, therefore, that the failure to 

interview the witness in person prior to 

trial constituted ineffective assistance of 

counsel. 

B. Performance During the Trial: 
Guilt/Innocence Phase. 

[62] Petitioner also contends that coun- 

sel’s conduct of the trial was deficient in 

- several respects. First, petitioner contends 

that the failure to move for a continuance 

or a mistrial when he learned of the sug- 

gestive line-up procedure on the morning of 

the trial constituted ineffective assistance. 

However, the court has already concluded 
in Part X, supra, that there was nothing 

unconstitutional about the chance viewing 

of the defendants prior to trial. The view- 
ing therefore would not have been grounds 

for a mistrial or a continuance. Failure to 

make a motion unwarranted in law is not 

ineffective assistance of counsel. 

[63] Petitioner also contends that his 
counsel! failed to object to admission of 
evidence regarding prior convictions and 
sentences for armed robbery. Petitioner 
makes the somewhat technical argument 

that because these convictions had been set 

aside by the granting of a motion for a new 

trial that they were inadmissible. Petition- 

er further contends that counsel did not 

object to this evidence because he had 

failed to investigate the circumstances of 

these convictions prior to trial.¥ Assum- 
ing for the moment that the failure to 

investigate these convictions constituted in- 

effective assistance of counsel, the court is 

unconvinced that petitioner can show actu- 

al and substantial prejudice resulted from 

the ineffectiveness. See Washington wv. 

37. Pursuant to Ga.Code Ann. § 27-2503(a) the 

State informed trial counsel on October 2, 1978 
that it intended to offer in aggravation certain 
prior convictions and sentences of pctitioner. 

Strickland, 693 F.2d 1243, 1262 (5th Cir. 
Unit B 1982) (en banc) cert. granted, — 

U.S. —, 103 S.Ct. 2451, 77 L.Ed.2d 1332 
(1983). First, petitioner does not contend 

that he was not guilty of those crimes. In 

fact, after being granted a new trial he 

pleaded guilty to them and received an 
18-year sentence. The court has already 

held that under Georgia law those crimes 

were admissible to show that petitioner en- 

gaged in a pattern or practice of armed 
robberies. The court cannot say that coun- 

sel’s failure to object to the introduction of 

this evidence at the guilt stage caused peti- 
tioner actual and substantial prejudice. 

Also, while the jury did learn that petition- 
er had received life sentences which had 
subsequently been set aside and this fact 

may have prejudiced them at the penalty 
stage of petitioner's trial,® the court is 
unprepared to say that in the context of all 
of the evidence, the failure of counsel to 

object to the introduction of this evidence 
warrants petitioner a new trial. However, 

given the court’s holding in Part III, su- 
pra, this point is essentially moot. 

[64] Finally, petitioner contends that 

trial counsel was ineffective because he 

failed to object to the tral court's “overly 

broad instructions to the jury (1) with re- 

gard to presumptions of intent and (2) as to 

the use of ‘other acts’ evidence for proof of 

intent, and (3) as aggravating circumstance: 

es at the sentencing phase.” Petitioner's 

September 20, 1983 Memorandum of Law 

in Support of Issuance of the Writ at 64. 
This court has already found that the trial 

court's instructions were not erroneous or 

overbroad. See Parts IV, VII and VIII, 

supra. Failure to object to the instruc- 

tions was not, therefore, ineffective assist- 

ance of counsel. 

C. Ineffective Assistance at Trial— 

Sentencing Phase. 

[65] Petitioner has contended that trial 

counsel was ineffective because he failed to 

The convictions and sentences which petitioner 

contends were invalid were among those listed. 

38. Sec note 26, supra. 

 



  

402 

undertake an independent investigation to 

discover and produce mitigating evidence 

and witnesses to testify on behalf of peti- 

tioner at the sentencing phase of his trial. 

Trial counsel testified that he asked peti- 

tioner for names of persons who would be 

willing to testify for him and that petition- 

er was unable to produce a single name. 

Counsel also testified that he contacted pe- 

titioner’s sister and that she also was un- 

able to produce any names.”® A review of 

trial counsel's testimony at the state habe- 

as hearing convinces this court that counsel 

' made a reasonable effort to uncover miti- 

gating evidence but could find none. Peti- 

tioner's sister declined to testify on her 

brother's behalf and told counsel that peti- 

tioner's mother was unable to testify be- 

cause of illness. McCleskey v. Zant, H.C. 

No. 4909, Slip Op. at 19 (Sup.Ct. of Butts 

County, April 8, 1981). The record simply 

does not support a finding of actual and 

substantial prejudice to petitioner due to 

any ineffective assistance by petitioner's 

counsel at the sentencing phase of the trial. 

D. Ineffective Assistance—Post-Trial. 

[66] Petitioner contends that trial coun- 

sel was also ineffective in failing to correct 

inaccuracies and omissions in the trial 

judge's post-trial sentencing report.’ This 

report is used by the Georgia Supreme 

Court as part of its review of whether the 

sentence imposed was arbitrary, excessive, 

or disproportionate.’ While it was in part 

because the Georgia capital sentencing pro- 

cedure provided such a review that the 

39. The sister testified at the state habeas hearing 

that counsel never asked her for any names and 
that if he had done so she would have been 
ready, willing and able to produce a number of 
names. The habeas court specifically chose to 
credit the testimony of the trial counsel rather 
than the sister. See McCleskey v. Zant, H.C. No. 
4909, Slip Op. at 19 (Sup.Ct. of Butts County, 
April 8, 1981). This finding of fact is presumed 
to be correct. 28 U.S.C. § 2254(d). 

580 FEDERAL SUPPLEMENT 

Supreme Court upheld the Georgia death 

penalty in Gregg v. Georgia, 428 U.S. 153, 

96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the 

Supreme Court has recently declared that 

such proportionality reviews are not re 

quired by the Constitution. Pulley v. Har- 

ris, — U.S. at - . 304 S.Ct. 

871 at 876-381, 79 L.Ed.2d 29 (1984). 

Since proportionality reviews are not re- 

quired by the Constitution, it is difficult for 

this court to see actual and substantial 

prejudice caused to petitioner by counsels 

failure to review and correct mistakes in 

the trial judge's report, even if such failure 

would constitute ineffective assistance of 

counsel. 

  

Since the court has concluded that peti- 

tioner has been unable to show actual and 

substantial prejudice caused by any ineffec- 

tive assistance of counsel, petitioner's: 

Claim “P” is without merit. 

XVII. CONCLUSION 

For the reasons set forth in Part III, 

supra, it is ORDERED, ADJUDGED, and 

DECREED that petitioner's conviction for 

malice murder be set aside and that peti 

tioner within one hundred twenty (120) 

days after this judgment becomes final as a 

result of the failure of respondent to lodge 

an appeal or as the result of the issuance 

of a mandate affirming this decision, 

whichever is later, be reindicted and tried, 

failing which this writ of habeas corpus 

without further order shall be made abso- 

lute. 

40. Georgia's capital sentencing procedure pro- 

vides for the filing of a trial judge's report to be 
part of the record reviewed by the Georgia Su- 
preme Court on appeal. 0.C.G.A. § 17-10-35. 

41. For a discussion of proportionality analysis 
in Eighth Amendment jurisprudence see Com- 
ment “Down the Road Toward Human Decen- 

cy”: Eighth Amendment Proportionality Analysis 
and Solem vs. Heim, 18 Ga.L.Rev. 109 (1983). 

 



      

PADILLA v. d’AVIS 403 
Cite as 580 F.Supp. 403 (1984) 

oN 

EE 2 El ze x 
8 a Gloria PADILLA, Plaintiff, 

a 
Vv. 

DD — 3 

2% 28 2 =e Luis M. d’AVIS and City of 
Chicago, Defendants. 

2/8 - % 2: : Si 
28 23 2 23 Anita JONES, Plaintiff, 

i Vv. : 

2 £m Z| om Luis M. d’AVIS and City of 
2} == = S i 

= Chicago, Defendants. 

< iL < Nos. 83 C 6390, 82 C 2943. 

Ele = H.zz : w 
Bie 7 R gl ° 9 United States District Court, 

N.D. Illinois, E.D. 

2: 5 E 2 8 Feb. 1, 1984. 

3| = 2 2 2 2.3 Patients brought action against city : 

and physician arising out of sexual assaults 

  

    

3 - “os by physician during course of his gyneco- 

3|= 8 8 w = 2 3 logical examinations of patients at city 

e health facility. On a motion to reconsider 

E HE L= 2 2 previous dismissal of one complaint, and 

Earn 8s = 5] ZT 8 defendants’ motions to dismiss, the District 
i = Bl oR= ’ 

al 8) - 8 Court, Shadur, J., held that: 1) patients 

zl = Z| wo 5% = Z| z= stated section 1983 cause of action against 

ge < & S city; (2) physician was not engaged in 

S| gi oe o “state action” and therefore patients failed 

= 2| g 3 = | 2 2 to state a cause of action under section 

3 1983 against him; and (3) patients failed to 

5 - = 3 Z| ws state a cause of action under state law 

= 8/1 = 3 against city. 

g 2 2! a Ordered accordingly. 

R= 5% 2| 88 

2| : SD ~ a 1. Federal Civil Procedure &1829, 1835 

al- = 3 =| 2 ZF On motion to dismiss, all factual alle- 

- "J. gations in complaint are taken as true and 

3 all reasonable and factual inferences ‘are 

= = E ~ drawn in favor of plaintiff. 

=| = . © Ee) 

2 = = B21 = 2. Civil Rights 13.17(7) 

A city has no punitive damages liabili- 

i ; sg ty under section 1983. 42 U.S.C.A. § 1983. 

gy 23 

tr i 3. Civil Rights &13.7 
Zs = 2 Absent some formally promulgated 

£3 £ £3 3 standard of conduct, such as an ordinance 

g > £ po = or administrative regulation, a section 1983 

£2 = a 2 & cause of action against a municipality must 

Ww ~~ 7 be grounded on some direct municipal act 
le] § AEYNUMBER SYSTEM or omission or some municipal policy, cus- 

tom or practice that in either event proxi 

 



  

  

  

Appendix C -     

Order of the Court of Appeals, dated March 26, | 

1985 denying rehearing | 

    
 



  

IN THE UNITED STATES COURT OF APPEADS. COURT OF APPEALS 

  

  

FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT 

LED 

No. 84-8176 MAR 2 5 1385 

SPENCER D. MERCER 

WARREN MCCLESKEY, CLERK 

Petitioner-Appellee, 

Cross-Appellant, 

versus 

RALPH KEMP, Warden, 

Respondent-Appellant, 
Cross-Appellee. 

On Appeal from the United States District Court for the 

Northern District of Georgia 

(March 26, 1985 ) 

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, 

KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, 

Circuit Judges. 

PER CURIAM: 

IT IS ORDERED that the petition for rehearing filed in the 

above entitled and numbered cause be and the same is hereby Qorusd . 

ENTERED FOR THE COURT: 

sd u. sy 
  

UNITED STATES CIRCUIT JWUDGE 

 



 
 

 
 

Involved ilsions 

  Appendix D - 

Statutory Prov 

 
 

 
 

 
 

 



  

  

    
  
  

  

STATUTORY PROVISIONS INVOLVED 

Ga. Code Ann. § 26-603: 
  

The acts of a person of sound mind and discretion are 

presumed to be the product of the person's will, but the presump- 

tion may be rebutted. 

Ga. Code Ann. § 26-604: 
  

A person of sound mind and discretion is presumed to intend 

the natural and probable consequences of his acts, but the 

presumption may be rebutted. 

Ga. Code Ann. § 26-1101: 
  

(a) A person commits ATL when he unlawfully and with 

malice aforethought, either express or implied, causes the death 

of another human being. Express malice is that deliberate 

intention unlawfully to take away the life of a fellow creature, 

which is manifested by external circumstances capable of proof. 

Malice shall be implied where no considerable provocation 

appears, and where all the circumstances of the killing show an 

abandoned and malignant heart. 

(b) A person also commits the crime of murder when in the 

commission of a felony he causes the death of another human 

being, irrespective of malice. 

  

Ga. Code Ann. § 59-806(4): 

"Are you concientiously opposed to capital punishment?" If 

he shall answer the question in the negative, he shall be held a 

competent juror. Provided, nevertheless, that either the State 

i or the defendant shall have the right to introduce evidence 

before the judge to show that the answers, or any of them, are 

untrue; and it shall be the duty of the judge to determine upon 

' the truth of such answers as may be thus questioned before the 

Qourt, 

  

  
 



  

- Ga. Code Ann. § 59-807: 
  

If a juror shall answer any of the questions set out in the 

| preceding section so as to render him incompetent, or he shall be 

| so found by the judge, he shall be set aside for cause. 
: 

|             
    
 



  

  
  
  

Appendix E - 
  

Statements of Facts from Petitioner's Post- 
Hearing Memorandum of Law in Support of His 
Claims of Arbitrariness and Racial Discrimina- 
tion, submitted to the District Court in 
McCleskey v. Zant, No. C81-2434A; and State- 
ment of Facts from En Banc Brief for Peti- 
tioner McCleskey, submitted to the Court of 
Appeals in McCleskey v. Kemp, No. 84-8176. 

  

  

  

  
 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

nn ct ae ee en tn So p 4 

WARREN McCLESKEY, ) 

Petitioner, ) 

-against- : ) CIVIL ACTION 
NO. C81-2434A 

WALTER D. ZANT, Superintendent, ) 

Georgia Diagnostic & Classification 

Center, ) 

Respondent. ) 

en ce mmm am 2 2 wn nm X 

PETITIONER'S POST-EEARING MEMORANDUM OF LAW 

IN SUPPORT OF HIS CLAIMS OF ARBITRARINESS 

AND RACIAL DISCRIMINATION 
  

ROBERT H. STROUP 
1515 Healy Building 

Atlanta, Georgia 30303 

JOBN CHARLES BOGER 

10 Columbus Circle 

New York, New York 10018 

TIMOTHY K. FORD 
600 Pioneer Building 
Seattle, Washington 94305 

ANTHONY G. AMSTERDAM 

New York University Law School 

40 Washington Square South 

New York, New York 10012 

ATTORNEYS FOR PETITIONER 

 



  

TABLE OF CONTENTS 
  

  

Page 

INTRODUCTION vovsvsctnsstsnesssssrssetasssonasnsssnsvnsenes 1 

STATEMENT OF FACTS tv cceececsosassossoscssnsssvsascssstsas 3 

I. Petitioner's Case-In-Chief ......cccvvccncccenn. 3 

A. Professor David BaldusS ....c.ccceccecncnannn 3 

1. Areas of Expertise .....ccccicceencans . 3 - 

2. Development of Research Objectives Crenn 5 

3. Procedural Reform Study ("PRS") ...... “s 7 

2. Design of PRS .coevevessees Saves en ee 8 

b. Data Collection for DRS FET TE 11 

ec. Data Entry and Cleaning for PRS .... 12 

4. Charging and Sentencing Study ("CSS") .. 13 

  

  

a. Design of CSS ....civececccnns .iinnies 14 

b. Data Collection for CSS ices vesnrens 37 

B. Edward Gates ..... SN LARC Ne RR SE ara 18 

1. Data Collection for PRS ves. RAINE nae 18 

3. Data Collection for CSS .cseesse Cree enisen 20 

C. Professor David Baldus (resumed) «..coeee- ‘e 21 

1. Data Entry and Cleaning for CSS ........ 21 

2. Methods of AnalysSisS ..eeeesvccccccsnnans 23 

3. ‘Analysis of Racial Disparities ......... 24 

a. Unadjusted Measures of Disparities . 24 

b. Adjusted Measures of Disparities ... 25 

4. Racial Disparities at Different 

Procedural Stages ..eeeerercsne viniwin inne 34 

5. Analysis of Rival Hypotheses ........... 35 

6. Fulton County Data ceceececcsvsne ceavene viv 38 

a. Analysis of Statistical Dispari- 

ties stoevvceee sarees EO BC 37 

bh. : "Near Neighbors" Analysis viiviede sess 39 

Ca Police HOMicideS ceceesssssrssssnnse 40 

7. Professor Baldus' Conclusions .....eces. 41 

  

D. Dr. George WOOAWOLrth ...scesaceas APR PRE 

1. Area Of Expertise c.eeececccecnss cowmasnen 42 

2. Responsibilities in the PRS ........0.. 43 

3. CSS Sampling Plan ...cc0e0 Canyon “ilies 44 

4. Selection of Statistical Techniques .... 44 

S. Diagnostic TeStS s.ciceecssccccansnacsnn 45 

6 Models of the Observed Racial Dispari- 

Bi88 seas Die ve dg A va Cae A Ee Ee 47 

 



  

Page 

E. Lewis Slayton Deposition 8 © © 9 © 5 8 9 8 8 °° 0 DP OS 8 48 

  

Fe. Other Evidence © © 9 © 8 © 9 9 9 5 9 8 08 00 0 OP eS SPSS SNE 48 

  

3x. Respondent's Case © © 9 9 9 © 9 8 9 0 0 5 9 OS 0 0 0 0 0 SSP SONS OD 49 

A. PY. Joseph Ratz © 8 9 © 9 9 90 8 2 0 9 5 O° 0 90 OP SO SOS SID 49 

  

1. Areas Of EXpertiSe ..ccsceeeccsccescccees 49 

2. Critiques of Petitioner's Studies ...... 51 

a.- Use of Foil Method .ccceecssecoccene 

bh. Inconsistencies in the Data ....cee. 31 

c. Treatment Of UNKNOWNS scccecoscacsoe 

3. Dr. Ratz's Conclusions ..ececeeoccccccncs 

B. Dr. Robert BUrfor@ ..ccesesssssrvnscesnsenss 52 
  

1. Area of EXpertisSe .c.cesvescccccccocncns 52 

2. Pitfalls in the Use of Statistical 

Analysis teeseescescccrrcnscsscnacnnn von. 253 

3. Dr. Burford's Conclusions .ccececseeass view 94 

ii1. Petitioner's Rebuttal Case SS 9 © 9 9 © 9 9 @ 9 8 8S 0 OO 0 Ie PO 54 

A. Professor Baldus @ 9 9 9 8 9 9 9 8 SS 5 8 OF SO PT OS Se SON 54 

  

B. Pr. Woodworth © 5 8 © 9 9 9 5 9 069 5 89 9 90 SPOS SSS NL 0D 57 

  

}. Statistical Issues ® © 5 5 8 9 9 2 9 8 © 9 0 O° SH OS 0 57 

2. Warren McClesky's Level of Aggravation . 358 

Co Pr. Richard Berk e 0 9 6 9 8 5 6 9 8 0 8 9 9 8 6 SOB PSO Ls 0 59 

  

1 1. Areas of Expertise ....... caine siesenne 59 

2. Quality of Petitioner's Studies ........ 60 

3. The Objections of Dr. Katz and Dr. 

BUTEOLT ov osvennssnsresstonssnonionnsnsy 8] 

De The Lawyer's Model ® 8 9 % 0 @ 9 9 9% 8 9% 9 0S SH SSS IB ND 62 

  

ARGUMENT 

Introduction: The Applicable LaW ccceeeecssscsssasonses 83 

I. The Basic Equal Protection Principles .......... 69 

A. The Nature of the Egual Protection 

Violations ® 2 © 3 8 5 9% 9° 9 4 % PD WS 8 9 © 8 ® 9 9 ° 9 ® 8 v8 0° 0 0 72 

  

  

- ii = 

 



  

invitation. In it, petitioner will first outline the evidence 

presented to the Court, and then state the legal founda- 

tions of his constitutional claims. | 

STATEMENT OF FACTS 
  

Y. Petitioner's Case-in-Chief 
  

A. Professor David Baldus 
  

1. Areas of Expertise 
  

Petitioner's first expert witness was Professor David C. 

Baldus, currently Distinguished Professor of Law at the University 

of Iowa. Professor Baldus testified that a principal focus of 

his academic¢ research and writing during the past decade has been 

upon the use of empirical social scientific research in legal 

contexts. During that time, Professor Baldus has co-authored a 

4/ 
widely cited (see DB6) work on the law of discrimination, 

see D. BALDUS & J. COLE, STATISTICAL PROOF OF DISCRIMINATION 

(1980), as well as a number of significant articles analyzing the 

use of statistical techniques in the assessment of claims of 

  

3/ Due to the length and complexity of the evidentiary hearing, 

and the fact that no transcript of the testimony has yet been 

completed, petitioner does not purport to set forth a comprehen- 

sive statement of the evidence in this memorandum. Instead, the 

statement of facts will necessarily be confined to a review of 

the principal features of the evidence. 

4/ Each reference to petitioner's exhibits will be indicated 

by a reference to the initials of the witness during whose 

testimony the exhibit was offered (e.g... David Baldus becomes 

"DB"), followed by the exhibit number. 

 



  

has served as a consultant to an eminent Special Committee on 

Empirical Data in Legal Decision-Making of the Association of the 

Bar of the City of New York. 

After hearing his qualifications, the Court accepted 

Professor Baldus as an expert in "the empirical study of the 

legal system, with particular expertise in methods of analysis 

and proof of discrimination in a legal context.” 

2. Development of Research Objectives 
  

Professor Baldus testified that he first became interested 

in empirical research on a state's application of its capital 

puhishment statutes shortly after Gregg v. Georgia, 428 U.S. 

153 (1976) and related cases had been announced by the Supreme 

Court in mid-1976. Those cases, Baldus explained, explicitly 

rested upon certain assumptions about how the post-Furman 

capital statutes would operate: (i) that sentencing decisions 

would be guided and limited by the criteria set forth in 

capital statutes; (ii) that under such statutes, cases would 

receive evenhanded treatment; (iii) that appellate sentence 

review would guarantee statewide uniformity of treatment, by 

corrcting any significant disparities in local disposition of 

capital cases; and (iv) that the influenced of illegitimate 

factors such as race or sex, would be eliminated by these 

sentencing constraints on prosecutorial and jury discretion. 

Professor Baldus testified that his own research and 

training led him to conclude that the Supreme Court's assump- 

 



  

tions in Gregg were susceptible to rigorous empirical evalution 

employing accepted statistical and social scientific methods. 

Toward that end -- in collaboration with two colleagues, Dr. 

George Wcodworth, an Associate Professor of Statistics at the 

University of Iowa, and Professor Charles Pulaski, a Professor 

of Criminal Law now at Arizona State University Law School == 

Baldus undertook in 1977 the preparation and planning of a major 

research effort to evaluate the applization of post-Furman 

capital statutes. 1In the spring semester of 1977, Professor 

Baldus began a review of previous professional literature on 

capital sentencing research and related areas, which eventually 

comprised examination of over one hundred books and articles. 

(See mais. iY Baldus and his colleagues also obtained access 

to the most well-known prior data sets on the imposition of 

capital sentences in the United States, including the Wolfgang 

rape study which formed the empirical basis for the challenge 

brought in Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), 
nnn 

  

rev'd on other grounds, 398 U.S. 262 (1970), and the Stanford 

9/ Te 

Law School study. They examined the questionnaires em- 

  

8/ Baldus testified that his research was particularly aided 

by other pioneering works on racial discrimination in the appli- 

cation of capital statutes, see, e.g., Johnson, "The Negro and 

Crime," 217 ANNALS 93 (1941); Garfinkel, "Research Note on 

Inter- and Intra- Racial Homicide," 27 SOCIAL FORCES 369 (1949); 

Wolfgang & Riedel, "Race, Judicial Discretion, and the Death 

Penalty," 407 ANNALS 119 (1973): Wolfgang & Riedel, "Rape, Race, 

and the Death Penalty in Georgia," 45 AM. J. ORTHO PSYCHIAT. 

658 (1975); Bowers & Pierce, "Arbitrariness and Discrimination 

under Post-Furman Capital Statutes," 26 CRIME & DELINQ. 563 (1980). 

  

S/ See "A Study of the California Penalty Jury in First Degree 

Murder Cases," 21 STAN. L. REV. 1297 (1969). 

 



  

ployed in those studies, reran the analyses conducted by prior 

researchers, and ran additional analyses to learn about factors 

which might be important to the conduct of their own studies. 

After these preliminary investigations, Baldus and his 

colleagues began to formulate the general design of their own 

research. They settled upon a retrospective non-experimental 

study as the best available general method of vestigation. 

They then chose the State of Georgia as the jurisdiction 

for etudy; based upon a consideration of such factors as the 

widespread use in other jurisdictions of a Georgla-type capital 

statute, the favorable accessibility of records in Georgia, 

and numbers of capital cases in that state sufficiently large 

to meet statistical requirements for analysis of data. 

3. Procedural Reform Study ("PRS") 
  

The first of the two Baldus studies, the Procedural 

Reform Study, was a multi-purpose effort designed not only to 

address the question of possible discrimination in the admin- 

  

10/ Under such a design, researchers gather data from available 

records and other sources on plausible factors that might have 

affected an outcome of interest (here the imposition of sentence 

in a homicide case) in cases over a period of time. They then 

used statistical methods to analyze the relative incidence 

of those outcomes dependent upon the presence Or absence of 

the other factors observed. Professor Baldus testified that this 

method was successfully employed in, among others, the National 

Halothane Study, which Baldus and his colleagues reviewed 

carefully for methodological assistance. 

11/ Baldus testified that he made inquiry of the Georgia De- 

partment of Offender Rehabilitation, the Georgia Department 

of Pardons and Paroles, and the Georgia Supreme Court, all of 

which eventually agreed to make their records on homicide 

cases available to him for research purposes. _(See DB 24.) 

 



  

istration of Georgia's capital statutes, but to examine appellate 

sentencing review, pre- and post-Furman sentencing, and other 

questions not directly relevant to the issues before this Court. 

Professor Baldus limited his testimony to those aspects and 

findings of the PRS germane to petitioner's claims. 

The PRS, initially supported by a small grant from the Uni- 

versity of Iowa Law Foundation, subsequently received major 

funding for data collection from the National Institute of 

Justice, as well as additional funds from Syracuse University 

Law School. Work in the final stages of data analysis was 

assisted by a grant from the Edna McConnell Clark Foundation 

distributed through the NAACP Legal Defense and Educational 

Fund, Inc. Research data collection and analysis for the PRS 

took place from 1977 through 1983. 

a. Design of PRS 
  

In formulating their research design for the PRS, Baldus 

and his colleagues first identified the legal decision-points 

within the Georgia charging and sentencing system which they 

would study and then settled upon the "universe” of cases on 

which they would seek information. After reviewing the various 

stages which characterize Georgia's procedure for the disposition 

of homicide cases (see DB21), Baldus decided to focus the PRS 

on two decision-points: the prosecutor's decision whether to 

seek a death sentence once a murder conviction had been obtained 

 



  

at trial; and the jury's sentencing verdict following a penalty 

trial. Baldus defined the universe of cases to 

include all persons arrested between the effective date of 

Georgia's post-Furman capital statute, March 28, 1973, and 

June 10, 1978 (i) who were convicted of murder after trial 

and received either life or death sentences, Or (ii) who 

received death sentences after a plea of guilty, and who either 

(1) appealed their cases to the Supreme Court of Georgia (ii) 

or whose cases appeared in the files of both the Department 

of Offender Rehabilitation ("DOR") and the Department of Pardons 

and Parcles froeen ys Y rate universe comprised 594 defendants. 

(See DB 26.) Penalty trials had occurred in 193 of these 

cases, including 12 in which two or more penalty trials had 

taken place, for a total of 206 penalty trials. In all, 113 

death sentences had been imposed in these 206 trials. 

Por each case within this universe, Baldus and his col- 

leagues proposed to collect comprehensive data on the crime, 

the defendant, and the victim. Factors were selected for inclu~- 

sion in the study based upon the prior research of Baldus, a 

review of questionnaires employed by other researchers such as 

Wolfgang as well as upon the judgment of Baldus, Pulaski and 

others about what factors might possibly influence prosecutors 

  

12/ The decision to limit the universe to cases in which a 

murder conviction or plea had been cbtained minimized concern 

about difference in the strength of evidence of guilt. The 

decision to limit the universe to cases in which an appeal had 

been taken or in which DOR and DPP files appeared was a necessary 

restriction based upon availability of data. 

 



  

and juries in their sentencing decisions. The initial PRS 

questionnaire, titled the "Supreme Court Questionnaire," was 

drafted by Baldus working in collaboration with a law school 

graduate with an advanced degree in political science, Frederick 

Ryle (see DB 27), and went through many revisions incorporating 

the suggestions of Pulaski, Woodworth, and others with whom it 

was shared. In final form, the Supreme Court Questionnaire 

was 120 pages in length and addressed over 480 factors or *vari= 

ables." After preliminary field use suggested the unwieldiness 

of the Supreme Court Questionnaire, and after analysis revealed 

a number of variables which provided little useful information, 

a second, somewhat nore abbreviated instrument, titled the 

Georgia Parole Board (or Procedural Reform Study) Questionnaire, 

was developed (see DB 35). Much of the reduction in size of 

this second questionnaire came from changes in its physical 

design to re-format the same items more compactly. Other varia- 

bles meant to permit a coder to indicate whether actors in the 

sentencing process had been "aware" of a particular variable were 

dropped as almost impossible to determine from available records 

in most instances. A few items were added to the second question- 

naire. Eventually, information on 330 cases was coded onto the 

Supreme Court Questionnaire, while information on 351 cases was 

coded onto the Georgia Parole Board Questionnaire. Eighty-seven 

cases were coded onto both questionnaires. (See DB 28, at 

2.) 

 



  

b. Data Collection for PRS 
  

Data collection efforts for the PRS began in Georgia during 

the summer of 1979. Baldus recruited Frederick Kyle, who had 

assisted in drafting the Supreme Court Questionnaire, and two other 

students carefully selected by Baldus for their intelligence and 

willingness to undertake meticulous detail work. Initially, the 

Supreme Court Questionnaires were filled out on site in Georgia; 

quickly, however, it became evident that because of the unwield- 

iness of that questionnaire, a better procedure would be to gather 

information in Georgia which would later be coded onto the 

questionnaires at the University of Iowa. Several items were 

collected for this purpose, including: (i) a Georgia Supreme 

Court opinion, if one had been rendered (see DB 29); (ii) a trial 

judge's report prepared pursuant to Ga. Code Ann. § 27-2537(a), 

if one was available in the Georgia Supreme Court (see DB 30); 

(iii) a "card summary" prepared by the Assistant to the Supreme 

Court of Georgia, if available (see DB 31); a procedural record 

of the case (see DB 32); (iv) an abstract of the facts, dic- 

tated or prepared by the coders in Georgia from the appellate 

briefs in the case, supplemented by transcript information (see 

DB 33); and a narrative summary of the case (see DB 3, at 3). 

In addition to those data sources, Baldus and his colleagues 

relied upon basic information on the crime, the defendant and the 

victim obtained from the Department of Pardons and Paroles, 

information on the defendant obtained from the Department of 

Qf fender Rehabilitation, information on the sex, race and age 

lh 

 



  

of the victim =-- if otherwise unavailable -- obtained from 

Georgia's Bureau of Vital Statistics, as well as information on 

whether or not a penalty trial had occurred, obtained from 

counsel in the cases if necessary (see DB 28; DB 36). 

The 1979 data collection effort continued in the fall of 

1980 under the direction of Edward Gates, a Yale graduate 

highly recommended for his care and precision by former employers 

at a Yale medical research facility. Baldus trained Gates and 

his co-workers during a four-day training session in August, 

1980, in the office of Georgia's Board of Pardons and Paroles, 

familiarizing them with the documents, conducting dry run 

tests in questionnaire completion, and discussing at length 

any problems that arose. To maintain consistency in coding, 

Baldus developed a set of rules or Protocols governing 

coding of the instruments, which were followed by all the 

coders. These protocols were reduced to written form, and a 

copy was provided to Gates and other coders in August of 1980. 

Baldus, who returned to Lowa, remained in contact with 

Gates daily by telephone, answering any questions that may 

13/ 

have arisen during the day's coding. 

C. Data Entry and Cleaning for PRS 
  

To code the abstracts and other material forwarded 

  

13/ While information on most of the cases in the PRS was 

gathered in 1979 and 1980, Edward Gates completed the 

collection effort in the final 80 cases during the summer 

of 1981. (See DB 28, at 2.) 

“12 - 

 



  

from Georgia onto the Supreme Court and PRS questionnaires, 

University of Iowa law students with criminal law course exper- 

ience, again chosen for intelligence, diligence, and care 

in detailed work. The students received thorough training 

from Professors Baldus and Pulaski, and they worked under the 

supervision of Ralph Allen, a supervisor who checked each 

questionnaire. The students held regular weekly meetings to 

discuss with Professor Baldus and their supervisor any 

problems they had encountered, and consistent protocols were 

developed to guide coding in all areas. | 

Following the manual coding of the questionnaires, 

Professor Baldus hired the Laboratory for Political Research 

at the University of Iowa to enter the data onto magnetic 

computer tape. Rigorous procedures were developed to ensure 

accurate transposal of the data, including a special program 

to signal the entry of any unauthorized codes by programmers. 

A printout of the data entered was carefully read by profes- 

sionals against the original questionnaires to spot any errors, 

and a worksheet recorded any such errors for correction on the 

magnetic tapes (see DB 50). 

3. Charging and Sentencing Study ("CSS") 
  

In 1980, Professor Baldus was contacted for advice by the 

NAACP Legal Defense Fund in connection with a grant application 

being submitted to the Edna McConnell Clark Foundation seeking 

funds to conduct social scientific research into the death 

“13 = 

Sa
me
 
LL
 S
E
S
 

 



  

penalty. Several months later, the Legal Defense Fund informed 

Baldus that the grant had been approved and invited him to con- 

duct the research. Under that arrangement, the Legal Defense Fund 

would provide the funds for the out-of-pocket expenses of a study, 

ceding complete control over all details of the research and 

analysis to Professor Baldus (apart from the jurisdiction to be 

studied, which would be a joint decision). Once the analysis 

had been completed, Baldus would be available to testify concerning 

his conclusions if the Legal Defense Fund requested, but Baldus 

would be free to publish without restriction whatever findings 

the study might Sowa After some further discussions, 

the parties agreed in the fall of 1980 to focus this Charging 

and Sentencing Study ("CSS") on the State of Georgia. 

a. Design of CSS 
  

The CSS, by focusing once again on the State of Georgia, 

permitted Professor Baldus and his colleagues to enlarge their 

PRS inquiry in several important respects: first, they were 

able, by identification of a different universe, to examine 

decision-points in Georgia's procedural process stretching back 

to the point of indictment, thereby including information 

on prosecutorial plea-bargaining decisions as well as jury guilt 

determinations; secondly, they broadened their inquiry to include 

  

14/ Baldus indeed expressly informed LDF at the outset that 

his prior analysis of the Stanford Study data left him skep- 

tical that any racial discrimination would be uncovered by 

such research. os 

 



  

cases resulting in voluntary manslaughter convictions as well 

as murder convictions; and thirdly by development of a new ques- 

tionnaire, they were able to take into account strength-of- 

evidence variables not directly considered in the PRS. Beyond 

these advances, the deliberate overlapping of the two related 

studies provided Professor Baldus with a number of important means 

to confirm the accuracy and reliability of each study. 

To obtain these benefits, Baldus defined a universe including 

all offenders who were arrested before January 1, 1980 for a 

homicide committed under Georgia's post-Furman capital statutes, 

who were subsequently convicted of murder or of voluntary man- 

slaughter. From this universe of 2484 cases, Professors Baldus 

and Woodworth drew two sunglass me first, devised accord- 

ing to statistically valid and acceptable sampling procedures 

(see the testimony of Dr. Woodworth, infra), comprised a sample 

of 1066 cases, stratified to include 100% of all death-sentenced 

casas, 100% of all life-sentenced cases afer a penalty 

trial, and a random sample of 41% of all life-sentenced cases 

without a penalty trial, and 35% of all voluntary manslaughter 

cases. The stratification had a second dimension; Professors 

Baldus and Woodworth designed the sample to include a minimum 

25% representation of cases from each of Georgia's 42 judicial. 

circuits to ensure full statewide coverage. 

  

15/ As indicated above, the PRS did not involve any sampling 

procedures. All cases within the universe as defined were 

subject to study.. 

16/ Because of the unavailability of records on one capitally- 

sentenced inmate, the final sample includes only 99% (127 of 128) 

of the death-sentenced cases. 

Yh 

 



  

The second sample employed by Baldus and Woodworth in the 

CSS included all penalty trial decisions known to have occurred 

during the relevant time period, on which records were available, 

a total of 253 of 254. Among those 253, 237 also appeared in the 

larger CSS Stratified Sample of 1066; the remaining 16 cases com- 

prised 13 successive penalty trials for defendants whose 
  

initial sentences had been vacated, as well as 3 cases included 

in Georgia Supreme Court files, but not in the file of the 

Department of Offender Rehabilitation. (This latter sample, of 

course, permitted Baldus to analyze all penalty decisions 

during the period. In his analyses involving prosecutorial 

decisions, Baldus explained that, since a prosecutor's treatment 

on the first gocasion inevitably would affect his disposition 

of the second, it could be misleading to count two dispositions 

of a defendant by a single decisionmaker on successive prosecutions. 

When two separate sentencing juries avaluated a capital defendant, 

however, no such problems arose. The two samples permitted both 

analyses to be employed throughout the CSS, as appropriate.) 

After a universe had been defined and a sample drawn, 

Baldus began development of a new questionnaire. Since the CSS 

sought to examine or "model" decisions made much earlier in the 

charging and sentencing process than those examined in the PRS, 

additional questions had to be devised to gather information on 

such matters as the plea bargaining process and jury conviction 

trials. A second major area of expansion was the effort to 

obtain information on the strength of the evidence, an especially 

 



  

important factor since this study included cases originally 

charged as murders which resulted in pleas or convictions for 

manslaughter. Professor Baldus devised these strength-of-evi- 

dence questions after a thorough review of the professional 

literature and consultation with other experts who had also 

worked in this area. The final CSS questionnaires (see DB 38) 

also included additional variables on a defendant's prior record 

and other aggravating and mitigating factors suggested by profes- 

sional colleagues, by attorneys and by preliminary evaluation 

of the PRS questionnaires. 

b. Data Collection for CSS 
  

Data for the CSS were collected from essentially the same 

souzaes used for the PRS: the Department of Pardons and Paroles, 

the Deparment of Offender Rehabilitation (see DB 40), the Supreme 

Court of Ceorals, the Bureau of Vital Statistics (see DB 47), 

supplemented by limited inquiries to individual attorneys to 

obtain information on whether plea bargains occurred, whether 

penalty trials occurred, and the status (retained or appointed) 

of defense counsel (see DB 45, at 3-6; DB 46) (see generally 

DB 39). 

Physical coding of the CSS questionnaires was completed 

directly from the official records in Georgia by five law students 

working under the supervision of Edward Gates, who had been 

one of Baldus' two coders for the PRS in Georgia in 1980. 

The five students were selected by Baldus after a nationwide 

recruitment effort at 30 law schools; once again, Baldus 

“iT - 

 



  

or Gates contacted references of the strongest candidates before 

hiring decisions were made (see DB 42). 

As in the PRS, an elaborate written protocol to govern data 

entries was written, explained to the coders, and updated as 

questions arose. (See DB 43.) After a week-long training session 

in Atlanta under the supervision of Professor Baldus, Gates and 

the law students remained in contact with Baldus throughout the 

summer to resolve issues and questions that arose. 

B. Edward Gates 
  

At this point during the evidentiary hearing, petitioner 

presented the testimony of Edward Gates who, as indicated above, 

was integrally involved in data collection efforts both in the 

PRS and in the CSS. Gates testified that he was a 1977 grad- 

uate of Yale University, with a Bachelor of Science degree in 

biology. Following his undergraduate training, Gates worked as 

a research assistant in the Cancer Research Laboratory of Tufts 

Medical School, developing data sets on cellular manipulation 

experiments, recording his observations and making measurements 

to be used in this medical research. (See EG 1.) 

1. Data Collection for PRS 
  

Gates testified that he was hired by Professor Baldus in 

August of 1980 to collect data for the PRS. Prior to travelling 

to Georgia, he was sent coding instructions and practice ques- 

tionnaires to permit him to begin his training. During mid- 

“18 = 

 



  

September, 1980, he met with Baldus in Atlanta, reviewed the 

practice questionnaires, and met with records officials in the 

Georgia Archives (where Supreme Court records were stored) and 

in the Department of Pardons and Paroles. After several 

additional days of training and coding practice, he worked at 

the Archives each workday from mid-September until late October, 

1980, reviewing trial transcripts, appellate briefs, trial 

judges's reports, and Supreme Court opinions before preparing 

abstracts and a narrative summary. 

Gates testified that he followed the written coding 

procedures throughout, and that problems or inconsistencies were 

discussed with Professor Baldus each day at 4:00 p.m. When 

changes in coding procedures were made, Gates testified that he 

checked previously coded questionnaires to ensure consistent 

application of the new protocols. 

In late October, coding work moved from the Archives to the 

Pardons and Paroles offices. There, Gates had access to police 

report summaries completed by Pardons and Paroles investigators, 

Federal Bureau of Investigation "rap sheets," field investigator 

reports on each defendant, and sometimes actual police or witness 

statements. Gates pcinted out an illustrative example of a case 

he had coded (see DB 34) and reviewed at length the coding 

decisions he made in that case, one of over 200 he coded 

employing the Procedural Reform Study questionnaire. In 

response to questioning from the court, Gates explained that his 

instructions in coding the PRS questionnaire were to draw 

- 19 - 

 



  

reasonable inferences from the file in completing the foils. 

(These instructions later were altered, Gates noted, for 

purposes of the coding of the CSS questionnaire.) 

Gates left Georgia in mid-January of 1981; he completed the 

final PRS questionnaires during the summer of 1981, during his 

tenure as supervisor of the CSS data collection effort in 

Atlanta. > 

2. Data Collection for CSS 
  

During early 1981, Gates was invited by Professor Baldus to 

serve as project supervisor of the CSS data collection effort, 

In the spring of 1981, he worked extensively with Baldus on a 

draft of the CSS questionnaire, assisted in hiring the coders 

for the 1981 project, and drafted a set of written instructions 

for the coders (see DB 4). 

Gates came to Georgia in late May of 1981, participated 

with Professor Baldus in a week-long training session with the 

five law student coders, and then supervised their performance 

throughout the summer. He reviewed personally the files and 

questionnaries in each of the first cone hundred cases coded by 

the students, to ensure consistency, and thereafter he regularly 

reviewed at least one case each day for each coder. At least 

twice during the summer, Gates gave all coders the same file and 

asked them to code and cross-check the results with those 

completed by the other coders. Gates spoke frequently by 

telephone with Baldus and discussed problems that arose in 

interpretation on a daily basis. As in earlier collection 

--20) - 

 



  

efforts, the protocols resolving questions of interpretation 

were reduced to written form, the final end-of-summer draft of 

which is incorporated in DB 43 (EG 5). Gates testified that he 

made great efforts to ensure that all questionnaires were coded 

consistently, revising all previous coded questionnaires when a 

disputed issue was subsequently resolved. 

Gates noted that for the CSS questionnaire, coders were 

given far less leeway than in the PRS to -draw inferences from the 

record. Moreover, in the event of unresolved conflicting statements, 

they were instructed to code in a manner that would support the 

legitimacy of the conviction and sentence imposed in the case. 

In sum, Gates testified that while the data for the PRS was 

very carefully coded, the data effort for the CSS was even more 

thoroughly entered, checked and reviewed. Both data collection 

efforts followed high standards of data collection, with 

rigorous efforts made to insure accuracy and consistency. 

C. Professor David Baldus (resumed) 
  

1. Data Entry and Cleaning for CSS 
  

Upon receipt of six boxes of completed CSS questionnaires 

at the end of August,” 1981, Professor Baldus testified that he 

faced five principal tasks before data analysis could begin. 

The first was to complete collection of any missing data, 

especially concerning the race of the victim, the occurrence of 

a plea bargain, and the occurrence of a penalty trial in life- 

sentenced cases. As in the PRS study, he accomplished this 

-il2) = 

 



  

task through inquiries directed to the Bureau of Vital Statistics 

(see DB 47) and to counsel in the cases (see DB 45-46). His 

second task was the entry of the data onto magnetic computer 

tapes, a responsibility performed under contract Dy the Laboratory 

for Political Science. The program director subsequently reported 

to Professor Baldus that, as as result of the careful data entry 

procedures employed, including a special program that immediately 

identified the entry of any unauthorized code, the error remaining 

in the data base as a result of the data entry process is estimated 

to be less than 1/6 of 1 percent, and that the procedures he had 

followed conform to accepted social science data entry practices. 

Baldus' third task was to merge magnetic tapes created by 

the Political Science Laboratory, which contained the data 

collected by his coders in Georgia, with the magnetic tapes 

provided by the Department of Offender Rehabilitation, which 

contained personal data on each offender. This was accomplished 

through development of a computer program under the supervision 

of Professor Woodworth. Next, Professors Baldus and Woodworth 

engaged in an extensive data "cleaning" process, attempting 

through various techniques -- crosschecking between the PRS 

and CSS files, manually comparing entries with the case sum- 

maries, completing crosstabular computer runs for consistency 

between two logically related variables -- tO identify any 

coding errors in the data. Of course, upon identification, 

- 33. 

 



  

1Z/- 
Baldus entered a program to correct the errors. (See DB 51). 

The final step preceding analysis was the "recoding" of 

variables from the format in which they appeared on the CSS 

questionnaire into a binary form appropriate for machine analysis. 

Professor Baldus performed this recoding (see DB 54, DB 55), 

limiting the gtudy to 230+ recoded variables considered relevant 

for an assessment of the question at issue: whether Georgia's 

charging and sentencing system might be affected by racial 

factors. 

2. Methods of Analysis 
  

As the data was being collected and entered, Professor 

Baldus testified that he developed a general strategy of 

analysis. First, he would determine the patterns of homicides in 

Georgia and any disparities in the rate of imposition of death 

sentence by race. Then he would examine a series of alternative 

hypotheses that might explain any apparent racial disparities. 

Among these hypotheses were that any apparent disparities could 

be accounted for: (i) by the presence Or absence of one or 

more statutory aggravating circumstances; (ii) by the presence 

or absence of mitigating circumstances; (iii) by the strength of 

the evidence in the different cases; (iv) by the particular time 

period during which the sentences were imposed; (v) by the 

geographical area (urban or rural) in which the sentences were 

imposed; (vi) by whether judges or juries imposed sentence; 

  

1/ Among the approximately 500,000 total entries in the CSS 

study, Professor Baldus testified that he found and corrected 

a total of perhaps 200 errors. . 

“33 - 

 



  

(vii) by the stage of the charging and sentencing system at 

which different cases were disposed; (viii) by other, less 

clearly anticipated, but nevertheless influential factors or 

combinations of factors; or (ix) by chance. 

Professor Baldus also reasoned that if any racial dispari- 

ties survived analysis by a variety of statistical techniques, 

employing a variety of measurements, directed at a number of 

different decision-points, principles of "triangulation" would 

leave him with great confidence that such disparities were real, 

persistent features of the Georgia system, rather than statis- 

tical artifacts conditioned by a narrow set of assumptions or 

conditions. 

For these related reasons, Professor Baldus and his 

colleagues proposed to subject their data to a wide variety of 

analyses, attentive throughout to whether any racial disparities 

remained stable. 

3. Analysis of Racial Disparities 
  

a. Unadjusted Measures of Disparities 
  

Before subjecting his data to rigorous statistical 

analyses, Professor Baldus spent time developing a sense for the 

basic, unadjusted parameters of his data which could thereby 

inform his later analysis. He first examined the overall 

homicide and death sentencing rates during the 1974-1979 period 

18/ 

(see DB S57), the disposition of homicide cases at 

  

18/ Unless otherwise indicated, the Baldus exhibits reflect 

data from the CSS. : 

“iD 

 



  

successive stages of the charging and sentencing process (see 

DB 58; DB 59) and the fraguency distraction of each of the 

CSS variables among his universe of cases (see DB 60). 

Next, Baldus did unadjusted analyses to determine whether 

the race-of-victim and race-of-defendant disparities reported 

by earlier researchers in Georgia would be reflected in his data 

as well. In fact, marked disparities did appear: while death 

sentences were imposed in 11 percent of white victim cases, 

death sentences were imposed in only 1 percent of black victim 

cases, a 10 point unadjusted disparity (see DB 62). While a 

slightly higher percentage of white defendants received death 

sentences than black defendants (.07 vs. .04) (id.), when the 

victim/offender racial combinations were separated out, the 

pattern consistently reported by earlier researchers appeared: 

  
  

  

  

Black Def./ white Def./ Black Def./ White Def./ 

White Vic. | white Vic. Black Vic. Black Vic. 

ae .08 .01 03 

(50/228) (58/745) (18/1438) (2/64) 

b. Adjusted Measures of Disparities 
  

Baldus testified, of course, that he was well aware that 

these unadjusted racial disparities alone could not decisively 

answer the question whether racial factors in fact play a real 

and persistent part in the Georgia capital sentencing system. 

To answer that question, a variety of additional explanatory 

factors would have to be considered as well. Baldus illustrated 

this point by observing that although the unadjusted impact of 

the presence or absence of the "(b)(8)" aggravating 

- 28 

 



  

19/ 
circumstance” on the likelihood of a death sentence 

appeared to be 23 points (see DB 61), simultaneous consideration 

or "control" for both (b)(8) and a single additional factor 

-- the presence or absence of the "{b)(10)" statutory factory 

-- reduced the disparities reported for the (b) (8) factor from 

a3 20 .04 in cases with (b)(10) present, and to -.03 in cases 

without the (b)(10) factor. (See DB 64.) 

Baldus explained that another way to measure the impact of 

a factor such as (b)(8) was by its coefficient in a Yeast 

squares regression. That coefficient would reflect the average 

of the disparities within each of the separate subcategories, or 

cells (here two cells, one with the (b) (10) factor present, and 

one with (b)(10) absent). (See DB 64; DB 65.) Still another 

measure of the impact of the factor would be by the use of 

logistic regression procedures, which would produce both a 

difficult-to~-interpret coefficient and a more simply understood 

"jeath odds multiplier," derived directly from the logistic 

coefficient, which would reflect the extent to which the presence 

of a particular factor, here (b)(8), might multiply the odds that 

21/ 

a case would receive a death sentence. Baldus testified that, 

  

18/ 0.€.6.a. § 17-10-30.(D)(8) denominates the murder of a 

peace officer in the performance of his duties as an aggravating 

circumstance. 

20/ 0.C.G.A. § 17-10-30.(b)(10) denominates murder committed 

to avoid arrest as an aggravated murder. 

21/ DB 64 reflects that the least squares coefficient for the 

(D) (8) factor was .02, the logistic coefficient was -.03, and 

the "death odds" multiplier was .97. 

- 268 = 

 



  

by means of regular and widely-accepted statistical calculations, 

these measures could be employed so as to assess the independent 

impact of a particular variable while controlling simultaneously 

for a multitude of separate additional variables. 

Armed with these tools to measure the impact of a variable 

after controlling simultaneously for the effects of other 

variables, Professor Baldus began a series of analyses involving 

the race of the victim and the race of the defendant -- first con- 

trolling only for the presence or absence of the other racial factor 

(see DB 69; DB 70), then controlling for the presence or absence 

of a felony murder circumstance (see DB 71; DB 72; DB 73), then 

controlling for the presence or absence of a serious prior 

record (see DB 74), then controlling simultaneously for felony 

murder and prior record (see DB 77), and finally controlling 

simultaneously for nine statutory aggravating circumstances as 

well as prior record (see DB 78). In all these analyses, Baldus 

found that the race of the victim continued to play a substantial, 

independent role, and the race of the defendant played a lesser, 
22/ 

somewnat more marginal, but not insignificant role as well. 

  

22/ Professor Baldus testified concerning another important 

measure which affected the evaluation of his findings =-- the 

measure of statistical significance. Expressed in parentheses 

throughout his tables and figures in terms of "p" values, (with 

a p-value of.10 or less being conventionally accepted as "margin- 

ally significant," a p-value of .05 accepted as "significant," 

and a p-value of .01 or less accepted as "highly statisticaly 

significant™), this measure p computes the likelihood that, if in 

the universe as a whole no real differences exist, the reported 

differences could have been derived purely by chance. Baldus 

explained that a p-value of .05 means that only one time in 

twenty could a reported disparity have been derived by chance if, 

in fact, in the universe of cases, no such disparity existed. A 

p-value of .01 would reflect a one-in-one hundred likelihood, a 

p-value of .10 a ten-in-one hundred likelihood, that chance alone 

could explain the reported disparity. 

  

«27 - 

 



  

Having testified to these preliminary findings, E 

Baldus turned then to a series of more rigorous analy: 

petitioner expressly contended to the court were responsive to 

the criteria set forth by the Circuit Court in Smith v. Balkcom, 
  

671 F.2d 858 (5th Cir. Unit B 1982) (on rehearing.). In the 

first of these (DB 79), Baldus found that when he took into 

account or controlled simultaneously for all of Georgia's 

statutory aggravating circumstances, as well as for 75 additional 

mitigating factors, both the race of the victim and the race of 

the defendant played a significant independent role in the 

determination of the likelihood of a death sentence. Measured 

in a weighted least squares regression enityeie > recs of victim 

displays a .10 point coefficient, a result very highly statist- 

ically significant at the 1-in-1000 level. The logistic 

coefficient and the death odds multiplier of 8.2 are also very 

highly statistically significant. The race of defendant effect 

measured by least squares regression was .07, highly statist- 

ically significant at the 1-in-100 level; employing logistic 

measures, however, the race of defendant coefficient was not 

statistically significant, and the death odds multiplier was 

1.4. 

  

23/ Because the stratified CSS sample required weighting under 

accepted statistical techniques, a weighted least squares regres- 

sion result is reflected. As an alternative measurement, Pro- 

fessor Baldus performed the logistic regression here on the 

unweighted data. Both measures show significant disparities. 

  

-:28 - 

 



  

Professor Baldus next reported the race-of-victim and 

defendant effects measured after adjustment Or control for a 

graduated series of other factors, from none at all, to over 230 

factors -- related to the crime, the defendant, the victim, 

co-perpetrators as well as the strength of the evidence -- 

simultaneously. (See DB s0./ Professor Baldus emphasized 

that as controls were imposed for additional factors, although 

the measure of the raca-of-vigtin effect diminished slightly 

from .10 to .06, it remained persistent and highly statistically 

significant in each analysis. The race of defendant impact, 

although more unstable, nevertheless reflected a .06 impact in 

the analysis which controlled for 230+ factors simultaneously, 

highly significant at the 1-in-100 level. 

Professor Baldus attempted to clarify the significance of 

these numbers by comparing the coefficients of the race-of- 

victim and race-of-defendant factors with those of other im- 

portant factors relevant to capital sentencing decisions. 

Exhibit DB 81 reflects that the race of the victim factor, 

measured by weighted least squares regression methods, plays 

a role in capital sentencing decisions in Georgia as signif- 

icant as the (i) presence or absence of a prior record of 

murder, armed robbery or rape (a statutory aggravating circum- 

stance -- (b)(1)); (ii) whether the defendant was the prime 

mover in planning the homicide, and plays a role virtually as 

  

24/ This latter analysis controls for every recoded variable 

used by Professor Baldus in the CSS analyses, all of which are 

identified at DB 60. 

- 29 - 

 



  

significant as two other statutory aggravating circumstances (the 

murder was committed to avoid arrest -- (b)(10) == and the 

defendant was a prisoner Or an escapee == (b)(9)). The race 

of defendant, though slightly less important, yet appears a more 

significant factor than whether the victim was a stranger Or an 

acquaintance, whether the defendant was under 17 years of age, 

or whether the defendant had a history of alcohol or drug abuse. 

The comparable logistic regression measures reported in DB 82, 

while varying in detail, tell the same story: the race of the 

victim, and to a lesser extent the race of the defendant, 

play a role in capital sentencing decisions in Georgia more 

significant than many widely recognized legitimate factors. 

The race of the victim indeed plays a role as important as many 

of Georgia's ten statutory aggravating circumstances in 

determining which defendants will receive a death sentence. 

With these important results at hand, Professor Baldus 

began a series of alternative analyses to determine whether 

the employment of other "models" or groupings of relevant 

factors might possibly diminish or eliminate the strong racial 

effects his data had revealed. Exhibit DB 83 reflects the 

results of these analyses. Whether Baldus employed his full 

file of recoded variables, a selection of 44 other variables most 

strongly associated with the likelihood of a death sentence, Or 

selections of variables made according to other recognized 

w 30 = 

 



  

25/ 

statistical techniques, both the magnitude and the statist- 

ical significance of the race of the victim factor remained 

remarkably stable and persistent. (The race of the defendant 

factor, as in earlier analyses, was more unstable; although 

strong in the least squares analyses, it virtually disappeared in 

the logistic analyses.) 

Baldus next, in a series of analyses (see DB 85- DB 87) 

examined the race-of-victim and defendant effects within the 

subcategories of homicide accompanied by one of the two statutory 

aggravating factors, -- (b)(2), contemporaneous felony, or 

(b)(7), horrible or inhuman -- which are present in the vast 

majority of all homicides that received a death sentence (see DB 

84). These analyses confirmed that within the subcategories 

of homicide most represented on Georgia's Death Row, the same 

racial influences persist, irrespective of the other factors 

controlled for simultaneously (see DB 85). Among the various 

subgroups of (b)(2) cases, subdivided further according to 

the kind of accompanying felony, the racial factors continue to 

play a role. (See DB 86; DB 87.) 

  

23/ Two of Professor Baldus' analyses involved the use of 

step-wise regressions, in which a model is constructed by 

mechanically selecting, in successive "steps," the single factor 

which has the most significant impact on the death-sentencing 

outcome, and then the most significant remaining factor with the 

first, most significant factor removed. Baldus performed this 

step-wise analysis using both least squares and logistic 

regressions. Baldus also performed a factor analysis, in which 

the information coded in his variables is recombined into 

different "mathematical factors" to reduce the possibility that 

multicolinearity among closely related variables may be distorting 

the true effect of the racial factors. 

- 31 = 

 



  

Professor Baldus then described yet another method of 

analysis of the racial factors -- this method directly responsive 

to respondent's unsupported suggestion that the disproportionate 

death-sentencing rates among white victim cases can be explained 

by the fact that such cases are systematicaly more aggravated. 

To examine this suggesstion, Baldus divided all of the CSS cases 

into eight, roughly equally-sized groups, based upon their overall 

levels of aggravation as measured by an aggravation-mitigation 

inden Baldus cbsaried that in the less-aggravated categories, 

no race-of-victim or defendant disparities were found, since virtually 

no one received a death sentence. Among the three most aggravated 

groups of homicides, however, where a death sentence became a 

possibility, strong race-of-victim disparities, and weaker, but 

rerginally significant race-of-defendant disparities, emerged. 

(See DB 89.) 

Baldus refined this analysis by dividing the 500 most 

aggravated cases into 8 subgroups according to his aggravation/ 

mitigation index. Among these 500 cases, the race-~of-victim 

disparities were most dramatic in the mid-range of cases, those 

neither highly aggravated nor least aggravated where the latitude 

for the exercise of sentencing discretion was the greatest. 

(See DB 90.) While death sentencing rates climbed overall as 

the cases became more aggravated, especially victims within the 

groups of the cases involving black defendants, such as petitioner 

McCleskey, the race-of-victim disparities in the mid-range 

  

26/ Baldus noted that a similar method of analysis was a prominent 

feature of the National Halothane Study. 

- 32 

 



  

reflected substantial race-of-victim disparities: 

  

Black Def. 

Category White Vic. Black Vic. 

3 «30 a 

(3/10) (2/18) 

4 Rv .0 

{3/13) (0/15) 

5 «35 «37 

(9/26) (2/12/) 

6 .38 .05 
(3/8) (1/20) 

7 .64 .39 
(9/14) (5/13) 

(DB 90.) 

Race of defendant disparities, at least in white victim cases, 
  

were also substantial, with black defendants involved in homi- 

cides of white victims substantially more likely than white 

defendants to receive a death sentence. 

  

white Vic. 

Category Black Def. White Def. 

3 «30 .03 

(3/10) (1/39) 

4 “od .04 

(3/13) (1/29) 

5 35 Tit 

(9/26) (4/20) 

6 +38 v 15 

(3/8) (5/32) 

7 .64 .39 
(9/14) (5/39) 

{DB 91.) 

“33 

 



  

These results, Professor Baldus suggested, not only support 

the hypothesis that racial factors play a significant role in 

Georgia's capital sentencing system, but they conform to the 

"liberation hypothesis" set forth in Ralven & Zeisel's The 

27/ 
American Jury. That hypothesis proposes that illegitimate 
  

sentencing considerations are most likely to come into play 

where the discretion afforded the decisionmaker is greatest, 

i.e., where the facts are neither so overwhelmingly strong nor - 

so weak that the sentencing outcome is foreordained. 

4. Racial Disparities at Different Procedural Stages 
  

Another central issue of Professor Baldus' analysis, one 

made possible by the comprehensive data obtained in the CSS, 

was his effort to follow indicted murder cases through the 

charging and sentencing system, tO determine at what procedural 

points the racial disparities manifested themselves. Baldus 

observed at the outset that, as expected, the proportion of 

white victim cases rose sharply as the cases advanced through 

the system, from 39 percent at indictment to 84 percent at 

death-sentencing, while the black defendant/white victim 

proportion rose even faster, from 9 percent toc 39 percent. 

(See DB 93.) The two most significant points affecting 

these changes were the prosecutor's decision on whether or 

not to permit a plea to voluntary manslaughter, and the prose- 

cutor's decision, among convicted cases, of who to take on to a 

sentencing trial. (See DB 94.) 

  

of 4. KALVEN & H. ZEISEL, THE AMERICAN JURY 164-67 (1966). 

- 34 = 

 



  

The race-of-victim disparities for the prosecutor's decision 

on whether to seek a penalty trial are particularly striking, 

consistently substantial and very highly statistically significant 

in both the PRS and the CSS, irrespective of the number of 

variables or the model used to analyze the decision (see DB 95). 

The race-of-defendant disparities at this procedural stage were 

| substantial in the CSS, though relatively minor and not statist- 

ically significant in the PRS. (Id.) Logistic regression 

analysis reflects a similar pattern of disparities in both the 

CSS and the PRS. (see DB 96. ). 

5. Analysis of Other Rival Hypotheses 
  

Professor Baldus then reported seriatim on a number of 

different alternative hypotheses that might have been thought 

likely to reduce or eliminate Georgia's persistent racial dispar- 

ities. All were analyzed; none had any significant effects. 

Baldus first hypothesized that appellate sentence review by the 

Georgia Supreme Court might eliminate the disparities. Yet 

while the coefficients were slightly reduced and the statistical 

significance measures dropped somewhat after appellate review, 

most models (apart from the stepwise regression models) continued 

to reflect real and significant race-of-victim disparities and 

somewhat less consistent, but observable race-of-defendant 

effects as well. 

- 35 - 

 



  

Baldus next hypothesized that the disparities do not reflect 

substantial changes or improvements that may have occurred in the 

Georgia system between 1974 and 1979. Yet when the cases were 

subdivided by two-year periods, although some minor fluctuations 

were observable, the disparities in the 1978-1979 period were 

almost identical to those in 1974-1975. (See. DB 103.) An 

urban-rural breakdown, undertaken to see whether different 

sentencing rates in different regions might produce a false 

impression of disparities despite evenhanded treatment within 

each region, produced instead evidence of racial disparities in 

both areas, (although stronger racial effects appeared to be 

present in rural areas (See DB 104.)) Finally, no discernable 

difference developed when sentencing decisions by juries alone 

were compared with decisions from by sentencing judges and 

juries. (See DB 105.) 

6. Fulton County Data 
  

Professor Baldus testified that, at the request of peti- 

tioner, he conducted a series of further analyses on data drawn 

from Fulton County, where petitioner was convicted and sentenced. 

The purpose of the analyses was to determine whether or not the 

racial factors so clearly a part of the statewide capital 

sentencing system played a part in sentencing patterns in Fulton 

County as well. Since the smaller universe of Fulton County 

cases placed some inherent limits upon the statistical operations 

that could be conducted, Professor Baldus supplemented these 

statistical analyses with two "qualitative" studies: (1) a "near 

“36 = 

 



  

neighbors" analysis of the treatment of other cases at a level of 

aggravation similar to that of petitioner; and (recognizing that 

petitioner's victim has been a police officer) an analysis of the 

treatment of other police victim cases in Fulton County. 

a. Analysis of Statistical Disparities 
  

Professor Baldus began his statistical analysis by observing 

the unadjusted disparities in treatment by victim/defendant 

racial combinations at six separate decision points in 

Fulton County's charging and sentencing system. The results 

show an overall pattern roughly similar to the statewide pattern: 

  
    

  

Black Def. White Def. Black Def. white Def. 

White Vic. White Vic. Black Vic. Black Vic. 

.06 .05 .005 .0 

{3/52) (5/108) (2/412) (0/8) 

(DB 106.) The unadjusted figures also suggest (i) a greater 

willingness by prosecutors to permit defendants to plead to 

voluntary manslaughter in black victim cases, (ii) a greater 

likelihood of receiving a conviction for murder in white victim 

cases, and (iii) a sharply higher death sentencing rate for white 

victim cases among cases advancing to a penalty phase. (DB 106; 

DB 107.) When Professor Baldus controlled for the presence or 

absence of each of Georgia's statutory aggravating circumstances 

separately, he found very clear patterns of race-of-victim 

disparities among those case categories in which death sentences 

were most frequently imposed (DB 108). Among (b)(2) and (b)(8) 

cases -- two aggravating cirstances present in petitioner's own 

= 37'= 

 



  

case -- the race-of-victim disparities were .09 and .20 respec- 

tively (although the number of (b)(8) cases was too small to 

support a broad inference of discrimination). 

When Professor Baldus controlled simultaneously for a host 

of variables, including 9 statutory aggravating circumstances, 

a large number of mitigating circumstances, and factors related 

to both the crime and the defendant (see DB 114 n.1 and DB 

96a, Schedule 3), strong and highly statistically significant 

race-of-victim disparities were evident in both the decision of 

prosecutors to accept a plea (-.53, p=.0001) and the decision to 

advance a case to a penalty trial after conviction (.20, p=.01) 

(DB 114). Race-of-defendant disparities were also substantial 

and statistically significant at the plea stage (-.40, p=.01) and 

at the stage where the prosecutor must decide whether to advance 

a case to a penalty trial (.19, p=.02) (DB 114). These racial 

disparities in fact, were even stronger in Fulton County 

than they were statewide. 

Although the combined affects of all decision-points 
  

in this analysis for Fulton County did not display significant 

racial effects, Professor Baldus suggested that this was likely 

explained by the very small number of death-sentenced cases in 

Fulton County, which made precise statistical judgments on 

overall impact more difficult. 

- 38 = 

 



  

b. "Near Neighbors" Analysis 
  

Aware of the limits that this small universe of cases would 

impose on a full statistical analysis of Fulton County data, 

Professor Baldus undertook a qualitative analysis of those cases 

in Fulton County with a similar level of aggravation to petitioner -- 

the "near neighbors.” Baldus identified these neighboring 

cases by creating an index through a multiple regression analysis 

of those non-suspect factors most predictive of the likelihood of 

a death sentence statewide. Baldus then rank-ordered all Fulton 

County cases by means of this index, and identified the group 

of cases nearest to petitioner. He then broke thats cases, 32 

in all, into three subgroups -- more aggravated, typical, and 

less aggravated -- based upon a qualitative analysis of the 

case summaries in these 32 cases. Among these three subgroups, 

he calculated the death-sentencing rates by race-of-victim. As 

in the statewide patterns, no disparities existed in the less 

aggravated subcategory, since no death sentences were imposed 

there at all. In the "typical" and "more aggravated" sub- 

categories, however, race-of-victim disparities of .40 and 

.42 respectively, appeared. (See DB 109; DB 110.) Professor 

Baldus testified that this near neighbors analysis strongly 

reinforced the evidence from the unadjusted figures that racial 

disparities, especially by race-of-victim, are at work not only 

statewide, but in Fulton County as well. 

- 30: 

 



  

c. Police Homicides 
  

Professor Baldus' final Fulton County analysis looked 

at the disposition of 10 police-victim homicides, involving 

18 defendants, in Fulton County since 1973. (See DB 115.) 

Among these 18 potential cases, petitioner alone received 
28/ 

a death sentence. Professor Baldus divided 17 of the cases 

into two subgroups, one subgroup of ten designated as "less 

aggravated, ™ the other subgroup of seven designated as "aggra- 

vated." (See DB 116.) The "aggravated" cases were. defined 

to include triggerpersons who had committed a serious contem- 

poraneous offense during the homicide. Among the seven aggra- 

vated cases, three were permitted to plead guilty and two were 

convicted, but the prosecutor decided not to advance the cases 

to a penalty trial. Two additional cases involved convictions 

advanced to a penalty trial. In one of the two, petitioner's 

case, involving a white officer, a death sentence was imposed; 

in the other case, involving a black officer, a life sentence 

was imposed. 

Although Professor Baldus was reluctant to draw any broad in- 

ference from this analysis of a handful of cases, he did note 

that this low death-sentencing rate for police-victim cases in 

Fulton County paralleled the statewide pattern. Moreover, 

the results of this analysis were clearly consistent with peti- 

tioner's overall hypothesis. 

  

28/ One defendant, treated as mentdlly deranged by the system, 

was not included in the analysis. 

- 40 - 

 



  

7. Professor Baldus' Conclusions 
  

In response to questions posed by petitioner's counsel 

(see DB 12), Professor Baldus offered his expert opinion =- 

in reliance upon his own extensive analyses of the PRS and CSS 

studies, as well as his extensive review of the data, research 

and conclusions of other researchers =-- that sentencing dis- 

parities do exist in the State of Georgia based upon the race of 

the victim, that these disparities persist even when Georgia 

statutory aggravating factors, non-statutory aggravating factors, 

mitigating factors, and measures of the strength of the evidence 

are simultaneously taken into account. Professor Baldus further 

testified that these race-of-victim factors are evident at 

crucial stages in the charging and sentencing process of Fulton 

County as well, and that he has concluded that these factors 

have a real and significant impact on the imposition of death 

sentences in Georgia. 

Professor Baldus also addressed the significance of the 

race-of-defendant factor. While he testified that it was not 

nearly so strong and persistent as the race of the victim, he 

noted that it did display some marginal effects overall, and that 

the black defendant/white victim racial combination appeared to 

have some real impact on sentencing decisions as well. 

 



  

D. Dr. George Woodworth 
  

1. Area of Expertise 
  

Petitioner's second expert witness was Dr. George Woodworth, 

Associate Professor of Statistics and Director of the Statistical 

Consulting Center at the University of Iowa. Dr. Woodworth 

testified that he received graduate training as a theoretical 

statistician under a nationally recognized faculty at the 

University of Minnesota. (See GW 1.) One principal focus of 

his academic research during his graduate training and thereafter 

has been the analysis of "nonparametric" or discrete outcome 

data, such as that collected and analyzed in petitioner's case. 

After receiving his Ph.D. degree in statistics, Dr. Woodworth 

was offered an academic position in the Department of Statistics 

at Stanford University, where he first became professionally 

interested in applied statistical research. While at Stanford, 

Dr. Woodworth taught nonparametric statistical analysis, multi- 

variate analysis and other related courses. He was also selected 

to conduct a comprehensive review of the statistical methodology 

employed in the National Halothane Study, for presentation to 

the National Research Council. Thereafter, upon accepting an 

invitation to come to the University of Iowa, Dr. Woodworth 

agreed to become the director of Iowa's Statistical Consulting 

Center, in which capacity he has reviewed and consulted as a 

statistician in ten to twenty empirical studies a year during 

the past eight years. 

 



  

Dr. Woodworth has published in a number of premier 

refereed professional journals of statistics on nonparametric 

scaling tests and other questions related to his expertise 

in this case. He has also taught courses in "the theory of 

probability, statistical computation, applied statistics, 

and experimental design and methodology. In his research 

and consulting work, Dr. Woodworth has had extensive 

experience in the use of computers for computer-assisted 

statistical analysis. 

After hearing his credentials, the Court qualified Dr. 

Woodworth as an expert in the theory and application of sta- 

tistics and in statistical computation, especially of discrete 

outcome data such as that analyzed in the studies before the 

Course. 
2. Responsibilities in the PRS 
  

Dr. Woodworth testified that he worked closely with Professor 

Baldus in devising statistically valid and acceptable procedures 

for the selection of a universe of cases for inclusion 

in the PRS. Dr. Woodworth also reviewed the procedures 

governing the selection of cases to be included in the three 

subgroups on which data were collected at different times and 

with different instruments to ensure that acceptable principles 

of random case selection were employed. 

Dr. Woodworth next oversaw the conversion of the data 

received from the PRS coders into a form suitable for statistical 

analysis, ‘and he merged the several separate data sets into one 

“33 

 



  

comprehensive file, carefully following established statistical 

and computer procedures. Dr. Woodworth also assisted in the 

cleaning of the PRS data, using computer techniques to uncover 

possible errors in the coding of the data. 

3. CSS Sampling Plan 
  

Dr. Woodworth's next principal responsibility was the 

design of the sampling plan for the CSS, including the develop- 

ment of appropriate weighting techniques for the stratified 

desion: In designing the sample, Dr. Woodworth consulted with 

Dr. Leon Burmeister, a leading national specialist in sampling 

procedures. Dr. Burmeister approved the CSS design, which Dr. 

Woodworth found to have employed valid and statistically accept- 

able procedures throughout. Dr. Woodworth explained in detail 

how the sample was drawn, and how the weights for analysis of the 

CSS data were calculated, referring to the Appendices to GW 2 

(see GW 2, pp. S5ff.) 

4. Selection of Statistical Technigues 
  

Dr. Woodworth testified that he employed accepted statist- 

ical and computer techniques in merging the various data files 

collected for the CSS, and in assisting in the data cleaning 

efforts which followed. 

Dr. Woodworth also made the final decision on the appro- 

priate statistical methods to be employed in the analysis of 

the CSS and PRS data. He testified at length concerning the 

ld. 

 



  

statistical assumptions involved in the use of weighted and un- 

weighted least squares regressions, lecgistic regressions and 

index methods, and gave his professional opinion that each 

of those methods was properly employed in these analyses 

according to accepted statistical conventions. In particular, 

Dr. Woodworth observed that while certain assumptions of least 

squares analysis appeared inappropriate to the data in these 

studies -- especially the assumption that any racial effects 

would exercise a constant influence across the full range of 

cases -- the use of that method did not distort the effects 

reported in the analyses, and its use allowed consideration of 

helpful and unbiased information about the racial effects. 

Moreover, Dr. Woodworth noted that the alternative analyses 

which employed logistic regressions -- a form of regression analysis 

dependent upon assumptions closely conforming to the patterns of 

data observed in these studies -- also found the persistence of 

racial effects and showed that the use of least squares analysis 

could not account for the significant racial disparities observed. 

5. Diagnostic Tests 
  

Dr. Woodworth conducted a series of diagnostic tests 

to determine whether the methods that had been selected might 

have been inappropriate to the data. Table 1 of GW 4 reflects 

the results of those diagnostic tests, performed on five models 

that were used throughout the CSS analysis. For both the race 

of the victim and race of the defendant, Dr. Woodworth compared 

i 45 

 



  

coefficients under a weighted least squares regression 

analysis, an ordinary least squares regression analysis, a 

"worst case" approach (in which cases with "missing" values 

were systematically coded to legitimize the system and run 

counter to the hypotheses being tested), a weighted least 

squares analysis removing the most influential cases, a weighted 

least squares analysis accounting for possible "interactions" 

anong variables, a weighted logistic regression analysis, and an 

unweighted logistic regression analysis. (GW 4, at Table 1.) 

Dr. Woodworth also employed a conservative technique to cal- 

culate the statistical significance of his results (see GW 3, at 

6 n.1, and Schedule II, for a calculation of Cressie's safe 

method) and a "modified Mantel-Haenzel Procedure (see GW 3, 

Schedules 1 and 3) to test the logistic regressions. These 

various diagnostic tests did not eliminate, and in most cases 

‘did not even substantially diminish, the race-of-victim effects. 

The levels of statistical significance remained strong, in most 

instances between two and three standard deviations, even 

employing Cressie's conservative "safe" method to calculate 

significance. 

Dr. Woodworth testified that, after this extensive diagnos- 

tic evalution, he was confident that the statistical procedures 

selected and employed in the PRS and CSS analyses were valid, 

and that the racial disparities found by the two studies were 

not produced by the use of inappropriate statistical methods or 

by incorrect specification of the statistical model. 

- AB iw 

 



  

  

6. Models of the Observed Racial Disparities 

Dr. Hoodworsl then directed the Court's attention to two 

figures he had developed to summarize the overall racial 

disparities in death-sentencing rates identified by the CSS 

study, employing the "mid-range" model in which both Dr. Wood- 

worth and Professor Baldus had expressed particular confidence. 

(See GW SA and 5B.) As Dr. Woodworth explained, these figures 

represented the likelihood of receiving a death sentence 

at different levels of aggravation. Among black defendants such 

as petitioner (see GW 5B, Fig. 2), Dr. Woodworth noted that the 

death-sentencing rate in Georgia rises far more precipitously 

for white victim cases as aggravation levels increase than does 

the rate for black victim cases. For example, Dr. Woodworth 

observed, at the .4 level of aggravation, those black defendants 

who had killed white victims were exposed to a .15 point higher 

likelihood of receiving a death sentence. A similar disparity, 

based upon race of the victim, obtained among white defendants. 

(See GW 5A, Fig. 1.) 

From these figures, Dr. Woodworth concluded that although 

white victim cases as a group are more aggravated than black 

victim cases, strong racial disparities exist in Georgia even 

when only those cases at similar levels of aggravation are 

compared. 

 



  

E. Lewis Slayton Deposition 
  

Petitioner offered, and the Court admitted pursuant to 

Rule 7 of the Rules Governing Section 2254 Cases, a transcript 

of the deposition of Lewis Slayton, the District Attorney for 

the Atlanta Judicial Circuit. In his deposition, while 

District Attorney Slayton stated several times that race did 

not play a role in sentencing decisions (Dep., at 78), he ac- 

knowledged that nis office had no express written or unwritten 

policies or guidelines to govern the disposition of homicide 

cases at the indictment stage (Dep., 10-12), the plea stage, 

(Dep., at 26) or the penalty stage (Dep., 31, 41, 58-539). 

Moreover, murder cases in his office are assigned at different 

stages to one of a dozen or more assistant district attorneys 

(Dep., 15, 45-48), and there is no one person who invariably 

reviews all decisions on homicide dispositions (Dep., 12-14, 

20-22, 28, 34-38). Slayton also agreed that his office does not 

always seek a sentencing trial in a capital case, even when 

statutory aggravating circumstances are present (Dep., 38-39). 

Slayton testified further that the decisionmaking process in his 

office for seeking a death sentence is "probably ... the 

same" as it was in the pre-Furman period (Dep., 59-61), and that 

the jury's likely verdict influences whether or not a case will 

move from conviction to a penalty trial (Dep. 31, 38-39). 

F. Other Evidence 
  

Petitioner offered the testimony of L. G. Warr, a parole 

officer employed by the Georgia Board of Pardons and Paroles. 

- 48 = 

 



  

Officer Warr acknowledged that in preparing the Parole Board 

reports used by Professor Baldus in his study, parole investi- 

gators were obligated by statute and by the Board Manual of 

Procedure in all murder cases to speak with the prosecuting 

attorney and police officers if possible, soliciting records, 

witness interviews and other sources of information, including 

comments from the prosecutor not reflected in any written 

document or file. The Manual instructs investigators that it 

is imperative in cases involving personal violence to obtain 

information on all aggravating and mitigating circumstances. 

The portions of the Manual admitted as LW 1 confirm Officer 

warr's testimony. 

Petitioner also introduced testimony from petitioner's 

sister, Betty Myer, that petitioner's trial jury included 

eleven whites and one black. 

Finally, petitioner proffered a written report by Samuel 

Gross and Robert Mauro on charging and sentencing patterns in 

Georgia which was refused by the Court in the absence of live 

testimony from either of the report's authors. 

II. Respondent's Case 
  

Respondent offered the testimony of two expert witnesses, 

Dr. Joseph Katz and Dr. Roger Burford. 

A. Dr. Joseph Katz 
  

1. Areas of Expertise 
  

Dr. Ratz testified that he had received bachelors degrees 

- AG - 

 



  

in mathematics and computer science from Louisiana State Univer- 

sity. Ratz received a Master degree in Mathematics and a 

Ph.D. degree in Quantitative Methods from L.S.U. A major 

focus of his professional research has been on input-output multi- 

plier models used in the projection of economic developments 

by experts interested in regional growth. Dr Katz has taught 

various courses in basic statistics, operations research and 

Linear programming in the Department of Quantitative Methods at 

L.S.U., in the Department of Nanasenent Information Sciences at 

the University of Arizona, and in the Department of Quantitative 

Methods at Georgia State University, where he is currently an 

Assistant Professor. Dr. Katz has published a number of articles 

on input-output multipliers in several refereed journals of 

regional science. 

Respondent offered Dr. Ratz as an expert on statistics, 

statistical analysis, quantitative methods, analysis of data, 

and research design. On voir dire, Dr. Katz acknowledged that 

he had no expertise at all in criminal justice or in the appli- 

cation of statistics to criminal justice issues. Dr. Katz 

was unfamiliar with any literature or research in the area. 

(Counsel for the State expressly conceded that the State as not 

offering Dr. Ratz to shed light in the criminal justice area.) 

Moreover, Dr. Katz has only one prior academic or profes- 

sional experience in the design of empirical research or the 

collection of empirical data -- and that one experience involved 

the gathering of Census data from library sources. He acknowl- 

edged having taken no academic course in multivariate analysis. 

- BO 

 



  

Upon completion of voir dire, the Court agreed to accept 

Dr. Katz as an expert in statistics. The Court declined to 

qualify him as an expert in criminal justice, research design, 

or empirical research. 

2. Critiques of Petiticner's Studies 
  

a. Use of Foil Method 
  

Over petitioner's objection predicated on his lack of exper- 

cise, Dr. Katz was permitted to testify what the use of the foil 

method of data entry for some of the PRS variables might have 

resulted in the loss of some information in those instances in 

which there were insufficient foils. The foil method also 

prevented a coder from reflecting completely certain data 

because of the arrangement of several of the foils. 

Dr. Katz admitted that the CSS questionnaire, which 

largely avoided any foil entries, was an improvement over the 

PRS questionnaires, although Dr. Katz faulted the one or two 

items in the CSS which reverted to a foil approach. 

b. Inconsistencies in the Data 
  

Dr. Katz testified that he had run cross-checks of variables 

present in cases included in both the PRS and the CSS that 

appeared to be identical. These checks uncovered what seemed to 

Dr. Ratz to be a number of "mismatches," suggesting that data 

may have been entered erroneously in one study, or the other, or 

both. 

Cc. Treatment of Unknowns 
  

Dr. Katz presented several tables showing what he described 

BY 

 



  

as "missing values." In his judgment, deletion of all cases 

with such missing values was necessary, thereby rendering 

any regression analysis virtually impossible. 

3. Dr. Ratz' Conclusion 
  

Dr. Ratz hypothesized that the apparent racial disparities 

reflected in the PRS and CSS research might be explained if 

it were shown that white victim cases generally were more 

+ aggravated than black victim cases. DE. Katz introduced a 

number of tables to establish that, as a whole, white victim 

cases in Georgia are more aggravated than black victim cases. 

Dr. Ratz admitted, however, that he had performed no 

analysis of similarly-situated black and white victim cases, 

controlling for the level of aggravation, nor had he performed 

any other analyses controlling for any variables that eliminated, 

or even diminished, the racial effects reported by Baldus and 

Woodworth. 

B. Dr. Roger Burford 
  

1. Area of Expertise 
  

Dr. Burford testified that he was a Professor of Quanti- 

tative Methods at Louisiana State University. He was also 

vice-president of a private research and consulting firm 

that conducts economic, market and public opinion research 

requiring extensive use of empirical methods. In his capacity 

as a consultant, Dr. Burford has testified as an expert 

witness between 100 and 150 times. 

Dr. Burford has taught courses in sampling theory, 

research methods, multivariate analysis, computer simulation 

BD 

 



  

modelling, and linear programming. He has published three 

textbooks on statistics sad a wide range of articles on regional 

economic growth, computer simulation methods, and other topics. 

Petitioner stipulated to Dr. Burford's expertise in the 

area of statistical analysis. On voir dire, Dr. Burford admitted 

that apart from his participation in the statistical analysis of 

one jury pool, he has had virtually no professional exposure to 

the criminal justice system and was not qualified as an expert 

in this area. 

2. Pitfalls in the Use of Statistical Analysis 
  

Dr. Burford testified that his involvement in the review 

of the PRS and CSS studies was largely as a consultant to 

Dr. Ratz. Dr. Burford conducted almost no independent analysis 

of these studies, but rather reviewed materials generated 

by Dr. Ratz. Dr. Burford believed that Dr. Katz' approach 

to the PRS and CSS studies was reasonable, and testified 

that it "could be useful" in evaluating these studies. 

The remainder of Dr. Burford's testimony focused upon the 

general limitations of statistical analysis. He suggested 

that statistics can provide evidence, but cannot constitute 

"proof in a strict sense.” Dr. Burford warned that regres- 

sion analysis can be misused, especially if the underlying 

data are invalid. Data sets rarely meet all of the assump- 

tions ideally required for the use of regression analysis. 

Possible multicolinearity, he warned, could confound regression 

results, although use of factor analysis admittedly reduces 

- BY ow 

 



  

the problems of multicolinearity. Dr. Burford also cautioned 

that step-wise regressions can result in an overfitted model 

and can thus be misleading. 

3. Dr. Burford's Conclusions 
  

Dr. Burford did not offer any ultimate conclusions on the 

validity of the statistical methods used in the PRS and CSS 

studies. He did acknowledge on cross-examination that the 

regressions run by Baldus and Woodworth were "pretty conclusive.” 

III. Petitioner's Rebuttal Case 

A. Professor Baldus 
  

On rebuttal, Professor Baldus disposed of several issues 

raised by respondent. He first addressed the questions raised 

by Dr. Katz concerning certain of his coding conventions, 

especially the failure to distinguish in his machine analysis 

between items coded 1 ("expressly stated in the file") and items 

coded 2 ("suggested by the file") on the questionnaires. Baldus 

restified that to examine the effect of this challenged practice, 

he had completed additional analyses in which, for 26 aggravating 

and mitigating variables, he recoded to make distinctions 

between items coded 1 and 2, rather than collapsing the two 

categories into one. He found that the distinctions had no 

effect on the racial coefficients, and only marginally affected 

the level of statistical significance. 

Turning to a criticism that, in multiple victim cases, 

information had not een coded concerning the characteristics 

of the second and successive victims, Professor Baldus again 

- Bh w- 

 



  

restified that he had conducted supplemental analyses to 

consider the problem. For the eight principal victim variables 

on which the questionnaires or case summaries contained suffice 

information, he recoded the computer for each of the 50-60 

multiple victim cases, and them reran his analyses. The 

race~-of-victim effects dropped by one-half of one percent, 

Baldus reported, and the race-of-defendant effects remained 

unchanged. 

Baldus next discussed Dr. Katz' table identifying "missin 

values." He explained that, im his 230+ variable models, the 

table would reflect approximately 30 missing values per 230- 

variable case. Baldus noted that much of the data that truly 

was missing was absent, not from Baldus' own data-gathering 

effort, but from the magnetic tape provided by the Department 

of Offender Rehabilitation. Moreover, most of such missing da 

related to characteristics of the defendants which had not bee 

used in Professor Baldus' analyses in any event. Other data 

"missing" from one variable was in fact suppied by data prese 

somewhere else in the questionnaire in another variable. 

More centrally, Professor Baldus testifed that his entirs 

philosphy in the coding of unkmown values, fully consistent 

with most of the relevant professional literature, was to 

assume that wherever an item was coded "unknown" or atssing 

because of an absence of information in the files, the decisid 

maker, prosecutor or jury, necessarily had been forced to trejg 

that factor as nonexistent. The basis for that assumption, hg 

explained, is that rational judgments normally are made upon 

“ 55 

  

—
—
—



  

what is known: information not available cannot normally affect 

a decision. Moreover, Baldus testified that he knew of nothing 

to suggest any systematic bias created by missing values or 

unknowns that might possibly affect the racial disparities 

observed. 

As a further safeguard on this point, however, Baldus 

testified about a table reporting regression results, controlling 

for the racial factors as well as nine statutory aggravating 

circumstances and prior record, in which he had deleted all 

cases with missing values, a method recommended by Dr. Katz. 

  (See DB 120). The only effect of the deletions was to increase 

the race-of-victim coefficient by .02. The race-of-defendant’ 

coefficient remained the same, although somewhat less statisti- 

cally significant (compare DB 78 with DB 120). A similar re- 

sult occurred after reanalysis of the table reported in DB 121. 

Baldus conducted yet another alternative analysis in which 

he assumed that every missing value would, if identified, run 

counter to his hypothesis, diminishing the racial effects. 

Recalculating his DB 78 under those extreme "worst case” 

assumptions, Baldus found that the race-of-victim coefficient 

did drop from .07 to .05, but it remained highly statistically 

significant at the 1-in-100 level. (See DB 122). The race-of- 

defendant coefficient dropped from .04 to .03, and remained 

non-significant. (See also DB 123). 

To counter Dr. Katz' further suggestion that the lack of 

information on the race of the victim in a small number of 

cases might be important, Professor Baldus recoded those cases, 

- BE - 

 



  

assigning black victim variables in death cases and white victim 

variables in life cases. Once again, the result of this "worst 

case" analysis revealed persistent race-of-victim effects, 

with a very high degree of statistical significance. (See DB 

124). 

Finally, in addressing Dr. Katz' "mismatch" tables 

for the PRS and CSS files, Professor Baldus observed that some 

of the "mismatches" simply reflected Dr. Katz' misunderstanding 

of differences in variable definition between the two files. 

Other "mismatches" occurred because Dr. Katz identified as 

errors certain discrepancies between the cases of co-defendants, 

unmindful that cases of co-defendants often reflect different or 

inconsistent factual versions of a single crime. In those 

mismatches where genuine discrepancies existed, Baldus noted, an 

analysis of the case summaries revealed that the error rate was 

higher in the PRS and lower in the CSS (on which most of the 

analyses relied.) Finally, Baldus noted that Dr. Katz had made 

no assertion that any systematic bias had been introduced by these 

few random errors. 

B. Dr. Woodworth 
  

1. Statistical Issues 
  

Dr. Woodworth on rebuttal spoke to several additional 

minor points raised by the State. He first addressed the 

observation of Dr. Katz that an estimated eleven cases existed 

in the CSS in which penalty trials had occurred but had not been 

identified by Baldus' coders. Katz speculated that these 

eleven omissions might have adversely affected the weighting 

“Bu 

 



  

scheme for the CSS sample. - Dr. Woodworth acknowledged that 

eleven missing penalty trial cases would have affected the 

weighting scheme; however, he calculated the degree of likely 

impact as affecting the third decimal place of the racial 

coefficients (e.g., .071 vs. .074.) 

Dr. Woodworth confirmed Professor Baldus' testimony that, 

from a statistical standpoint,. the few inevitable, but insignifi- 

cant- errors that may have been identified by Dr. Ratz' cross- 

matching procedures could only have affected the racial coeffi- 

cient if they had been systematic, rather than random, errors. 

Dr. Woodworth next addressed an implication by Dr. Katz 

that since the level of statistical significance of the CSS 

racial disparities had dropped upon the introduction of 

additional variables to the model, the introduction of still 

further variables would eliminate statistical significance 

entirely. Through the use of a simple figure (see GW 6), Dr. 

Woodworth demonstrated the fallacy in Dr. Katz' reasoning, 

explaining that there was no statistically valid way to predict 

the effect of the addition of additional variables to a model. 

2. Warren McClesky's Level of Aggragation 
    

Finally, in response to a a question posed to him by the 

Court on petitioner's case-in-chief, Dr. Woodworth reported 

that, on the aggravation scale reported at GW 5A and 5B, Warren 

McClesky's case fell at the .52 level (see GW8). At that 

level, Dr. Woodworth explained, the disparities in black 

defendant cases dependent upon whether the victim was white or 

black was approximately 22 points. 

- 53 

 



  

Dr. Woodworth testified that, to arrive at the best overall 

figure measuring the likely impact of Georgia's racial dispari- 

ties on a case at petitioner's level of aggravation, he had 

employed a triangulation approach, using three separate measures. 

Prom GWS8, he drew a measure of 22 points; from DB 90, at level 

S where petitioner's -case is located, the disparity was 18 

points; from Dr. Woodworth's recalculation of logistic proba- 

bilities, the disparity in the midrange adores 23 

points. Dr. Woodworth noted this "almost complete convergence” 

suggested a measure of the racial impact in a case at petitioner's 

level of over 20+ percentage points. 

Ce. Dr. Richard Berk 
  

1. Areas of Expertise 
  

Petitioner's final rebuttal witness was Dr. Richard Berk, 

Professor of Sociology at the University of California at 

Santa Barbara. Dr. Berk has an undergraduate degree from Yale 

and a Ph.D from John Hopkins University. (See RB 1.) Dr. Berk 

has taught courses in econometrics, statistics, and research 

design, and has published extensively in the areas of criminal 

justice statistics and sentencing issues. Dr. Berk has served 

as a consultant to the National Institute of Justice, to the 

  

29/ Both Baldus and Woodworth, as well as Dr. Burford testified 

that this or a similar model, which did not contain the hundreds 

of variables that might raise problems of multicolinearity, was 

probably the best model for measuring possible racial effects. . 

- 80 w- 

 



  

California Attorney General's Committee on Statistics, and to 

the counties of Baltimore and Santa Barbara, for which he has 

designed jury selection systems. Dr. Katz has also served on a 

select sanel of the National Academy of Science which, during 

the past two years, has examined virtually every major empirical 

sentencing study ever conducted and formulated criteria for 

the conduct of such revanrchiny After hearing his testimony, 

the Court accepted Dr. Berk as an expert in statistics and in 

sociology. 

2. Quality of Petitioner's Studies 
  

Dr. Berk testified that he had received a copy of the 

magnetic tape containing the PRS and CSS studies some ten months 

prior to his testimony. During the intervening period, he 

nad conducted some preliminary analyses on the data and had 

reviewed the Baldus and Woodworth preliminary report, as well as 

Dr. Katz' written evaluation of that report. Dr. Berk found both 

the PRS and CSS to be studies of "high credibility." He testified 

that among the hundreds of sentencing research efforts he had 

reviewed for the National Academy of Sciences, the Baldus and 

Woodworth studies were "far and away the most complete," that 

they employed "state of the art diagnostics," that the data 

quality was "very salient" -- in sum that he knew of no better 

published studies anywhere on any sentencing issue. Dr. Berk also 

commented favorably on such features of the studies as the 

  

30/ The report of the Special Committee has been published as 

RESEARCH ON SENTENCING: THE SEARCH FOR REFORM {1983). 

- BO 

 



  

comprehensive use of alternative statistical analyses, the 

computer system employed, and Baldus' assumptions about the 

proper treatment of "unknowns" or "missing values." Moreover, 

Dr. Berk testified that after reading the Ratz report and 

hearing the testimony of Dr. Katz and Dr. Burford, he came 

away even more persuaded by the strength and reliability of 

petitioner's studies. 

3. The Objections of Dr. Katz and Dr. Burford 
  

Dr. Berk testified that he concurred with Dr. Burford's 

testimony listing possible pitfalls in the use of statistical 

analysis; however, Berk saw no evidence that the Baldus and 

Woodworth studies had fallen victim to any of these errors, 

and he did not understand Dr. Burford to have identified any 

serious weaknesses in either of the studies. 

Turning to Dr. Katz' testimony, Dr. Berk first addressed 

the possible effects of multicolinearity on the racial dispari- . 

ries observed by Baldus. He noted that the diagnostics that had 

been performed by Dr. Woodworth failed to reveal serious multico- 

linearity in the studies, but that such effects, even if serious, 

could have only dampened or diminished the racial effects. 

Dr. Berk faulted the logic of Dr. Ratz' suggestion that the 

more aggravated general level of white victim cases was a 

plausible hypothesis to explain the racial disparities observed. 

He noted that the important question was how white and black 

victim cases were treated at similar levels of aggravation; while 
  

“ BY 

 



  

Dr. Katz had not even attémpted to address this latter question, 

petitioner's experts had done so, and he found convincing Dr. 

Woodworth's proof that at similar levels of aggravation, marked 

differences were clear in the treatment of cases by race 

of the victim. 

Addressing Professor. Baldus' coding .cf "unknowns," Dr. Berk 

observed that the National Academy of Sciences committee had 

discussed this very question, concluding as did Professor Baldus 

that the proper course was to treat unknown data as having no 

influence on the decigionmaker. Berk further observed, respect- 

ing the "missing data" problem, that missing data levels no 

greater than 10 to 15 percent of the total (the PRS and CSS 

figures were 6 percent or less) "almost never makes a difference” 

in the outcome of statistical analysis. Moreover, were such 

missing data having a serious effect on the studies, a predic- 

table symptom would be a skewing or inverting of other anticipated 

effects, such as those of powerful determinants of sentence such 

as the statutory aggravating circumstances. In Baldus' studies, 

however, no such symptons appeared, leading pr. Berk to discount 

missing data as a serious problem. 

D. The Lawver's Model 
  

Several weeks after the August, 1983 evidentiary hearing, 

Professor Baldus submitted an affidavit describing in detail 

the results of an analysis employing a model developed by the 

Court; including factors selected as likely to predict whether a 

homicide case would receive a capital sentence. The race-of- 

iB) - 

 



  

victim disparities reported by Professor Baldus upon completion 

of extensive analyses using the Lawyer's Model were fully 

consistent with the results presented during the evidentiary 

hearing: 

"There are persistent race of victim effects 

and when the analysis focuses on the more 

aggravated cases, where there is a substan- 

tial risk of a death sentence, those effects 

increase substantially. 

'Baldus Aff., at 10. See id., at 19. 

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Nevertheless, we submit that the statistical case alone is 

sufficient to warrant relief. This Court has recognized that 

"(ijn some instances, circumstantial or statistical evidence of 

racially disproportionate impact may be so strong that the 

results permit no other inference but that they are the product 

of a racially discriminatory intent or purpose." Smith v. 

Ealkcom, 671 F.2d 858, 859 (5th Cir. Unit B 1982) (on rehearing): 

  
cf. Adams v. wainwright, 709 F.2d 1443, 1449 (11th Cir. 1983), 

Petitioner's comprehensive statistical evidence on the cpetabion 

of Georgia's capital statutes from their inception in 1973 

through 1979, demonstrating substantial, pervasive disparities 

cased upon the race of the nomicide victim and the race of the 

defendant, constitutes just the sort of "clear pattern, unex- 

plainable on grounds other than race," Arlington Heights v. 
  

Metrooolitan Housing Authority, 439 U.S. 252: :268 (1977), that 
  

the Supreme Court has held to establish an Equal Protection 

violation. It is to petitioner's evidence that we now turn. 

»> 

B. The Facts: Petitioner Has Made Out A Compelling 

o>rima Facie Case Of Racial Discrimination In Capital 

Sentencing 
  

(i) Petitioner's Experts Were Well Qualified 
  

The statistical case-in-chief for petitioner was pre- 

  

17/ (continued) 

  

washington v. Davis, 426 U.S. 229, 265-66 (1976). Having denied 

petitioner access to the records from which such discriminatory 

acts might have been proven, moreover, (R. 596; see Fed. Hab. 

Tr. 1797-99), the District Court should not have faulted peti- 

rioner for failure to introduce such non-statistical evidence as 

part of its case-in-chief. (See R. 1141). If this Court's 

review of petitioner's substantial statistical evidence leaves 

the Court with any doubts about petiticner's prima facie claim, 

it should remand the case to the District Court for tne receipt 

of this significant nonstatistical evidence. 

“2 Tu 

 



  

sented through the testimony of two experts eminently qualified 

to investigate the very matters at issue. Professor David 

Baldus, petitioner's chief researcher, testified concerning his 

background and training in law as well as his extensive experi- 

ence in the development and use of social science methods to 

examine legal issues. Educated in pelitical science at Pittsburgh 

and in law at Columbia and Yale Law Schools (Fed. Hab. Tr. 

39-42), Baldus has pursued a distinguished research and teaching 

career, focused upon the applications of social science methods 

to legal issues. His first major research effort, on the impact 

of certain social welfare laws, has subsequently "been reprinted 

in a number of books, and it's used in courses in sociology 

departments and in law schools to illustrate [time series] ... 

methodology as a way of trying to determine the impact the 

enactment of laws ha(s]." (Id. 52-53).18/ 

As a result of consultations on that first project with 

Professor James Cole, a statistician, Baldus began an attended 

research collaboration with Cole on how courts should employ 

statistical evidence in evaluation of claims of discrimination. 

(Id. 34-55). The ultimate fruit of that effort is an authorita- 

sive text in the field, D. BALDUS & J. COLE, STATISTICAL PROOF 

OF DISCRIMINATION (1980) (id. 68), widely relied upon by the 
de 

th
 ederal courts in evaluating the quality of statistical evidence. 

(Fed. Hab. Tr. 74-75; see DBS). 
  

As part of his research for that work, Baldus happened to 

  

18/ Baldus, "Welfare as a Loan: Aan Empirical Study of the 

Recovery of Public Assistance Payments in the United States,” 25 

STAN. L. REV, 123 (1873). 

dQ 

 



  

obtain and reanalyze an extensive data set on capital punishment 

patterns collected in the mid-1960's by Professor Marvin wolfgang.19/ 

Subsequently, Baldus also obtained and reviewed a second major 

data set on capital punishment patterns collected at Stanford 

University during the late 1350's and early 1960's. (1d.).20/ 

Baldus further pursued his interest in capital punishment in a 

critical evaluation of the methodologies employed in two key 

studies on the deterrent value of capital punishment, published in 

a special 1975 symposium on the death penalty in the Yale Law 

Journal.21/ | 

After Gregg v. Georgia in 1976, Professor Baldus' research 

interest in capital punishment intensified into a principal focus 

of his work. During the succeed ing seven years, Baldus devoted a 

major portion of his research (id. 84-100), writing (id. 85-90)22/, 

and teaching energies (id. 90) to the post-Gregg capital punish- 

ment statutes and their administration, reviewing every Supreme 

Court case on capital sentencing and studying the professional 

  

  

19/ See Wolfgang & Riedel, "Race, Judicial Discretion and the 

ath Penalty, 407 ANNALS 119 (1973). 

See Special Edition, "A Study of the California Penalty 

in First Degree Murder Cases,” 21 STAN. L. REV. 1297 

) 

21/ Baldus & Cole, "A Comparison of the Work of Thorsten sellin 

d Isaac Ehrlich on the Deterrent Effect of Capital Punishment,” 

Lg L. J. 178 (192%). o
H
 

22/ See DB 1 at 2; e.g., Baldus, Pulaski, Woodworth & Ryle, 

Identifying Comparatively Excessive Sentences of Deatn," 33 

STAN. L. REV. 801 (1977); Baldus, Pulaski & Woodworth, "Prop 

tionality Review of Death Sentences: An Empirical Study of 

ZepTgus Experience," J. CRIM. LAW & CRIMINOLOGY (forthcoming 

1883). 

  

-3G- 

 



  

literature on sentencing patterns in both capital and non-capital 

cases (id. 130-31; see DB 13) as part of his preparation for the two 

studies that formea the basis of petitioner's statistical case 

pelow.23/ 

Petitioner's other expert on his case-in-chief was Dr. 

George Woodworth, an Associate Professor of Statistics at the 

Univeristy of Iowa. Dr. Woodworth testified that he had been 

trained as a theoretical statistician (id. 11953), specializing 

in nonparametric analysis of categorical daks (the very sort of 

data at issue in ‘petitioner's two studies). (Id. 1197, 1200). 

While teaching at Stanford University, Dr. Woodworth developed 

an interest in applied statistics (id. 1200), and was invited by 

the National Research Council and its chief statistician, 

Frederick Mosteller, to conduct a formal review of the statisti- 

cal methodology used in a major national research project (id. 

1200-01) (which employed many of the methods Baldus and Woodworth 

ultimately incorporated into their own studies). (Id. 134-38). 

Dr. Woodworth also served as the Director of Iowa's Statistical 

Consulting Center, advising researchers on appropriate statistical 

techniques for over eighty empirical studies. (Ig. 1203-04). He 

nas published widely in statistical journals (see GW 1+. 8E 2-3], 

and is a member of the Committee on Law and Justice Statistics of 

rhe American Statistical Association. (Id. 1194).24/ 

  

23/ Baldus also served as a consultant on capital sentencing 

review tO two state supreme courts (id. 94-96) and was at the 

time of the 1983 hearing a principal consultant to a Task Force 

of the National Center for State Courts, charged with developing 

appellate capital sentencing methods and standards. (Id. 97-100). 

In light of his extensive experience, the District Court's finding PO 

that "[b]efore he became involved in projects akin to that under 

analyses here, Baldus apparently had had little contact with the 

criminal justice system," is clearly erroneous. 

24/ The District Court qualified Professor Woodworth in the 

"theory and application of statistics, and in the statistical 

... analysis of discrete] outcome data," (id. 1208). 

-30=- 

 



  

(ii) Petitioner's Data-Gathering Effort 
Was Carefully Conducted 
  

Petitioner's experts testified that they undertock 

two overlapping studies of the administration of Georgia's 

capital sentencing system in the post-Furman era. The first 

of these, entitled the Procedural Reform Study ("PRS"), 

was designed to examine whether disparities in treatment, 

based upon race, could be found at two key "decision points" 

in the Georgia system: the prosecutor's decisien, following 

a murder conviction, on whether to proceed to a penalty . 

trial, where a death sentence might be imposed, or to accept 

the automatic life sentence that follows any murder conviction 

under Georgia law; and the jury's decision, in those cases 

advancing to a penalty trial, on life imprisonment or death. 

(Id. 166-67).25/ The universe for the PRS was defined to 

include all defendants arrested between the enactment of 

Georgia's post-Furman capital statute on March 28, 1973 ana 

June 30, 1978, who were subsequently convicted of murder = 

some 594 individuals. (Id. 170-71; 1392). 

The second study, designated the Charging and Sentencing 

Study ("CSS"), was designed to examine possible racial discrimi- 

nation at all decision points from indictment forward, including 

prosecutorial plea bargaining decisions, jury ddbteions on 

conviction or acquittal, and the sentencing decisions encompassed 

in the PRS. (Id. 261). The CSS was framed tc include a sample 

of persons indi a 'a 11
 A.
 

m
h
 

O rt O 0 tr
 g = [o
 3 0. M fu
 e) 0. m
h
 

fo) ~ voluntary manslaughter 

  

  

23/ For a description of the statutory options available 
under Georgia law upen conviction for murder, see Gregg v. 

Georgia, supra, 428 U.S. at 1e2-566. 
  

 



  

during the entire period from 1973 through 1378. (1d 263-64) .26/ 

The data-gathering procedures have Deen summarized elsewhere. 

(See Spencer lst Br., APD. A 11-13, 17-23). We will here confine 

our attention to four aspects of that process: (a) the integrity 

of the data sources; (b) the strengths of the data~-gathering 

instruments employed; (c) the care and accuracy of the coding 

process; and the (4) coding conventions employed. 

(a) The Integrity of the Data Sources 
  

Professor Baldus testified that, in choosing a state for 

study, he and his colleagues "were very much concerned about the 

availability of data." (Id. 160). Baldus dispatched a colleague 

"to Georgia for a period of two weeks to find out what data were 

here that we could get access to, and he returned to Iowa with a 

glowing report about the many sources of data." (Id. 174-75). 

These included not only the records of the Supreme Court of 

Georgia -- which typically contained grial transcripts, trial 

judges' reports, appellate briefs, and a summary card on each 

case (id. 175; 202-04; see, e.g., DB 29-33) -- but also back- 
  

ground information on each defendant in the files of the De- 

partment of Qffender Rehabilitation (id. 175; 204-05) and victim 

information from the Bureau of Vital Statistics (id. 176; 203-06; 

  

  

26/ The PRS does not involve a sample; instead it includes 

every individual within the universe. The (SS, by contrast, 

embraces a universe of 2484 from which a weighted sample of 

1066 cases was drawn by scientifically appropriate procedures. 

{Id4. 265-73). 

 



  

Most importantly, Baldus and his colleagues eventually lo- 

cated "an. extensive file of information on all offenders” in the 

30ard of Pardons and Parcles (id. 176), which became the basic 

source for the Charging and Sentencing Study. 

The official Pardons and Parole files, petitioner demon- 

strated to the District Court, are kept pursuant to a stringent 

state statute that requires the Board "to obtain and place in its 

permanent records as complete information as may be practically 

available on every person who may become subject to any relief 

which may be within the power of the Beard to grant ... [inclu- 

ding] A. A complete statement of the crime for which such person 

is sentenced, [and] the circumstances of such crime ... E. Copy 

of pre-sentence investigation and previous court record ... [and] 

H. Any shotat, thysical, mental or criminal records of such 

person." (Former GA. CODE. ANN. § 77-5312). L.W. Warr, a former 

field officer for the Board, now a field supervisor (Fed. Hab. 

Tr. 1327), testified that field officers (all of whom are re- 

quired to be college graduates) (id. 1329), are trained to "check 

local criminal records ... go to the clerk of court, get sentence 

information, indictments, jail time affidavits, we get police 

reports from the agency that handled the case.” (Id. 1330-31).23/ 

  

27/ The District Court noted that "the police reports were 

missing in 75% of the cases [and] the coders treated the Parole 

Board summary as a police report" (R. 1161; see 1157). Officer 

Warr testified, however, that whenever the actual police reports 

were not included in Parole Board files, they were always sum- 

marized, and nothing "contained in the police repcrts ... would 

[pe] routinely omit{ted]"™ (Fed. Hab. Tr. 1332; accord, id. 1331). 

Furthermore, Warr stated that, especially in homicide cases, field 

officers often went beyond the report to "interview the [police] 

officers that were involved in the ¢ 

  

ase” (1d, 1332). Por this 

reason, the Pardon Board summaries were typically superior sources 

of information to the actual police reports themselves, 

“3S 

 



  

In homicide cases, moreover, Parcle Board officers routinely 

speak, not only with the investigating police officers (id. 1332), 

but also with the District Attorney tO obtain "his comments con- 

cerning the case" and "his impression regarding what happened ... 

involving the particular crime.” (Id. 1333). The officers 

were guided in their investigation by a Field Operations Manual 

(LW 1), which contained the following instructions, 

among others: 

"3.02 ... The importance of this report cannot 

be over-emphasized; and where the offender 

nas been convicted of crimes against the 

person, it is imperative that the Qfficer 

extract the exact circumstances surrounding 

rhe offense. Any aggravating or mitigating 

circumstances must be included in the report. 

* * * 

"3.02 ... Circumstances of the offense - 

This should be obtained in narrative form, it 

should be taken from the indictment, the 

District Attorney's Office, the arresting 

officers, witnesses, and victim. A word 

picture, telling what napgened, when, where, 

how and to whom should be prepared.” 

x * * 

The Parole Officer should be as thorough as 

possible when conducting post-sentences on 

persons who nave received ... sentences in 

excess of fifteen years. In cases where 

arrest reports are incomplete the circum- 

stances of the offenses shoula be obtained as 

thoroughly as possible and the Parole Officer 

should review the transcript of the trial if 

available for detailed information. A per- 

sonal interview with the arresting or investi- 

gating officer is almost always a valuable 

source of information as the officer may 

recall important details and facts which were 

not revealed in the arrest report.” 

 



  

Parole Board record contained any systematic errors Or omissions 

(id. 648: "we're not in a position at this point to challenge 

the underlying data source ... from the Pardons and Paroles 

Board") -- much less any information that these files were sSys-— 

tematically biased according to the race of the defendant or the 

victim.28/ 

Baldus acknowledged that some data were occasionally missing 

from the Pardons and Paroles files, as well as from the files of 

other agencies =-- the Georgia Supreme Court, the Department of 

Of fender Rehabilitation, and the Bureau of Vital Statistics -- to 

which he also turned. (Id. 205-06). The only important categories 

of missing data, however, involved information on the race of the 

victim, on whether a penalty trial had occurred, and on whether a 

plea bargain had been offered. (Id. 586-88).29/ Baldus took extra- 

ordinary steps to obtain this information from official files, 

even writing systematically to defense counsel and prosecutors to 

secure it where official sources failed. (Id. 587-838; see DB 

45, 46). Moreover, petitioner sought without success to secure 

  

In light of this uncontradicted testimony, the Districe 

's findings that "[tlhe information available to the coders 

e Parole Board Files was very summary," (R. 1160), and 

|ne Parole Board summaries themselves were brief" or 

st{e]" (id.), are at least misleading, if not clearly 

- 

2Y9/ Despite extensive testimony explaining the rationale under 

which the coders were instructed to code certain information as 

"J" or "unknown" in Baldus' questionnaires (see id. 444-45, 324- 

27, 1684-90), and further testimony on the scientific appropriate- 

ness of Baldus' use of the "U" code (id. 1761-64), the District 

Court suggests throughout its opinion that this accepted coding ; 

convention represents "missing data" (R. 1163-67). We deal with 

the "U" coding issue and its actual effect on Baldus' analyses at 

pages 41-44. 

 



  

these data from respondent during the discovery process. (R. 

3556; 595-96; 599; 813). 

In the end, the amount of missing data proved scientifically 

insignificant. Only 5 of the 3594 cases in the PRS lacked race- 

of-victim information (id. 1096; 1705-06); for the CSS, the 

number was 63 of 1066 (id.). Penalty trial information was missing 

in only 23 of the 594 for the PRS (id. 1104), in an estimated 20 

to 30 of 1066 cases in the CSS. (Id. 1119-211, Plea bargaining 

information -- information not on record facts about whether 

bargains were accepted and pleas entered, but rather more informal 

information on whether pleas had been unsuccessfully sought or 

offered (id. 1152-33) =-- was obtained for sixty percent of the 

cases. (Id. 1153). As petitioner's expert noted (id. 1765-66; 

see Fed. Oct. Tr. 82) and as commentators have agreed, missing 

data at a rate of 10 to 12 percent normally does not produce any 

systematic bias in ultimate outcomes, see, £.9. vuyanich v. 
  

Republic Nat'l Bank of Dallas, 505 F. Supp. 224, 257 (N.D. TeX. 
  

1980), vacated on other grounds, 723 F.2d 1195 (Sth Cir. 1384) .30/ 
  

(0) The Quality of the Data-Gathering Instrument 
  

During the data collection effort for the PRS and the CSS, 

Baldus and his colleagues developed and employed three separate 

questionnairies -- two for the PRS, and 2 third, modified and 

improved instrument for the CSS. The initial PRS "Supreme Court 

  

20/ To confirm those theoretical judgments Baldus testified 

at he performed a wide range of alternative analyses, including 

hose specifically recommended as appropriate by respondent’ Ss 

perts (id. 1301), precisely in order to see whether these 

issing data might have affected the persistent racial disparities 

hat he found. (Id. 1101; 1694-1708). None dia. (
v
3
 
O
r
r
 

1
 (§]

 
Md
 

[a
 T 

-3f~ 

 



  

Questionnaire" (see DB 27), 120 pages in length, was devised 

through a lengthy drafting process. "We sought to identify," 

Baldus testified, "any variable that we believed would bear on 

[the] matter of the death worthiness of an individual offender's 

CES@ ... relating to the nature of the crime, the personal charac- 

teristics of offender, characteristics of the victim." (Id. 194-393). 

The initial Supreme Court Questionnaire proved of nvieldy 

length for use in the field. (1d. 208). Therefore, although 330 

rages in the PRS study were eventually coded using this instru- 

ment (id. 200; see DB 28, at 2), Baldus developed a revised 

version, designated the "Procedural Reform Questionnaire" (see 

DB 35). The Supreme Court Questionnaire was actually coded in 

Iowa, by coders who employed copies of original court documents 

obtained from official Georgia files (see, e.9., DB 29-33), as 
  

well from detailed abstracts of the files and a written case 

summary provided on each case by Baldus' Georgia coders. (See DB 

33; Fed. Hab. Tr. 208-15). However, the 351 Procedural Reform 

Questionnaires were all filled out in Georgia, in the offices of - 

the public agencies involved, with "the source document literally 

at [their] fingertips when [they] did the coding." (Id. 368). 

One major feature of both PRS questionnaires (as well as 

the CSS questionnaire) was their inclusion of a "narrative 

summary" section, in which the coders could register important 

information that was not otherwise covered in the questionnaire. 

As Professor Baldus explained, "[wle had nc illusion that our 

questionnaire could capture every nuance of every case. But we 

wanted to be able to record that somenow. So we enterad that 

 



  

information on these ... summaries.” (Id.).31/ Baldus also 

created an "other" category for certain questions to permit a 

coder to include unforeseen but possibly relevant information.32/ 

Despite the comprehensiveness of the PRS Instronents, the 

CSS questionnaire (see DB 38) marked a substantial improvement 

in several respects. First, Baldus included a number of vari- 

ables to capture the strength of the evidence. (Fed. Hab. Tr. 

274-75). Second, he added additional sariables on legitimate 

aggravating and mitigating factors. (Id. 274). Third, Baldus 

virtually abandoned the "foil entry" format employed in the PRS 

questionnaires, under which a coder could occasionally find too 

few foils on which to enter relevant data in response to partic~ 

ular questions. (Id.).33/ 

  

31/ The District Court apparently misconceived Baldus' testi- 

mony concerning these summary documents, stating that "an 

important limitation placed on the data Ddase was the fact that 

the questionnaire could not capture every nuance of every case. 

BR. 239" (R. 1159). In fact, the summaries were included pre- 

cisely to permit Baldus to capture such nuances. 

32/ The District Court also treated this "other" coding feature 

3s if it were a deficiency in the questionnaire design, not an 

agsse-. (R. 1168). In fact, it permitted Baldus tO capture addi- 

rional information and determine whether some unforeseen factor 

may have had a systematic impact on his analyses. (I. 1708-09). 

Baldus re-analyzed the "other" response in some of his alterna- 

tive statistical analyses, finding that their inclusion "had no 

effect whatever. It in no way diminished the racial effects. In 

fact, it intensified them slightly." (Id. 1710). 

33/ The District Court faulted the questionnaires for their use 

of the foil method (R. 1139-80), without making clear that this 

method was largely a feature of the PRS study -- which played 

only a minor role in Baldus' analyses. Almost all of the major 

analyses were conducted on the CSS data. (Id. 1437). Even so, as 

a check on the impact of the foils, Baldus identified some 30 PRS 

cases in which there was "overflow information ... that wouldn't 

£it into the original foils," recoded all of the important 

variables from the PRS in which the foil method nad been employed, 

re-ran his analyses and "found that the results were identical, 

and in fact, the race effects became somewhat intensified when 

chis additional information was included." (Id. 1099-1100). A 

recoding of the only two items on the CSS questionnaire that had 

retained the foil method obtained identical results. (Id. 1101) 

-33~ 

 



  

The State's principal expert conce that the (SS instru- ed 

ment was "an improvea questionnaire.” (Id. 1392); indeed, respon- 

dent never proposed Or identified any variables or set of vari- 

‘ables, not included in the analyses, that might have eliminated 

rhe racial disparities reported by Baldus. (Id. 1609). 

{c) The Care Emploved in Coding 
  

The coding process for both studies employed "state-of-the- 

art" procedures designed to ensure uniform, accurate collection 

of data. Initial coding for the PRS study was overseen by a law 

graduate (id. 207-05) who developed with Baldus a written 

"srotocol,” a series of careful instructions to coders meant to 

achieve consistent treatment of issues by regularizing coding 

practices. (Id. 227-28; see DB 34). 

To complete the questionnaire for the css study, Baldus 

employed as his supervisor Edward Gates, one of the two coders 

who had earlier worked on the PRS study. (Id.). He recruited 

five coders in a nationwide law school search (id. 301); Baldus 

flew to Georgia for a week .in June of 1981 to train the students, 

explain the extensive written protocol 34/(id. 310-11); see DB 

43) and code practice questicnnaires with them. (Id. 309). 

Throughout the summer, Baldus maintained daily telephone contacts with 

Gates and the coders to resolve any issues presented by the 

coding. (Id. 400). 

The State's expert purported to test the coders' accuracy, 

not by checking qu uestionnaires obtained through discovery 

  

34/ The written protocol, as this Court ¢an observe from even a 

quick review (see DB 43), involved hundrads of instruct ions on 

both general coding issues and specific issues for particular 

questions. The District Court's statsment that "the coders were 

given two general rules to resolve ambiguities of fact,” {R. 11317), 

hardly does justice to the care taken u providing guidance to 

“3Qm 

 



  

against files in the State's possession, but by running Computer 

comparisons on those cases included in both the PRS and CSS 

studies. This computer check generated a list of ostensible 

"mismatches," which the State implied were indicative of multiple 

. coding errors. The District Court apparently credited this 

argument. (R. 1162). 

The State's expert admitted, however, that in compiling 

"mismatches” he had made no attempt to compare the coding 

instructions from the PRS and CSS protocols, to see whether in 

fact coders had been following identical rules. (Id. 1447). In 

fact, as Batdis and Gates both testified, instructions for cod- 

ing items in the two studies were often quite different. As a 

general example, in the PRS, coders were required to draw reason- 

able inferences from the file (id. 367); in the CSS, they were 

net,  (Id.). By way Of further example, protocols for the coding 

of the (B)(3), (b)(7) and (2)(10) aggravating circumstances were 

very different in the PRS and CSS studies. In short, as the | 

State was forced to concede, "I don't believe Dr. Katz is indi- 

cating either one is necessarily right or wrong in his judgment. 

He's just indicating he's done a computer count and found these 

inconsistencies." (Id. 1444). 

Professor Baldus testified on rebuttal that he had performed 

an extensive analysis of the State's alleged mismatches, employ- 

ing the official file materials and the narrative summaries, to 

determine whether the inconsistencies represented coding errors, 

rather than differences in PRS and CSS coding instructions or 

differences due to data sources relied upon. (Id. 1718-189). (Many 

Of the PRS cases were coded from Georgia Supreme Court materials, 

dy 

 



  

whereas all of the CSS cases were coded from the Pardons and 

paroles Board files).  Baldus reported that "the 

average mismatch rate was 6 percent, of which one percent ... 

were attributable to either a coding error Or a keypunching 

error or data entry error Of one sort or another." (Id. at 1719). 

Baldus added 

"that translates into an error rate of approximately 

one-half of one percent in each of the two studies. 

However, we found on further examination that ... 

the error rate in the Procedural Reform Study was 

higher than it was in the Charging and Sentencing Study. 

(Id. 1719-20). Since the CSS study was the basis for most of 

Baldus' analyses (id. 1437), it appears that the actual error 

~ 

rate was extremely Low. 

(d) The Basic Coding Conventions 
  

The State vigorously attacked one coding convention relied on 

oy Baldus and his colleagues throughout the PRS and CSS studies: 

the use of a "U" or "unknown" code. edward Gates explained that 

coders were instructed to enter a "1" if a fact were "expressly 

stated in the file" (id. 444), a non if the fact were "suggested 

by the file but not sP cifically indicated", (id. 444-43), a 

blank if the fact were inconsistent with the file, and a "U" if 

  

35/ The District Court noted that there were inconsistencies = 

between the coding of "several variables" for petitioner McCleskey 

and his co-defendants (R. 1161). The Court's only reference is to 

testimony indicating that in the PRS study, petitioner McCleskey 

was coded as having three special aggravating factors while 

co-defendant Burney is coded as having only two. Gates testified 

that coding provisions for co-perpetrators in the CSS study were 

"far superior ... in terms of precisely defining the differences 

between the roles that the different actors in the crime played.” 

(Id. 471). Once again the discrepencies appear to pose NO threat 

to Baldus' analyses, which were largely based on CSS data. 

Indeed, although different coders wers allowed to ccde the cases 

of co-perpetrators in the PRS (id. 1110-13), for the CSS, Baladus 

developed the practice of naving a single coder complete gues- 

rionnaires on all co-perpetrators. (Id. 1124-26). 

“dl 

 



  

che coder could not classify the item based on the file, ~ {1d.). 

As Professor Baldus explained: 

What an unknown means basically as it's coded in 

the Charging and Sentencing Study is that the ... 

information in the file, was insufficient to 

support an inference as to the occurrences or the 

non-occurrence of the event.... The idea was chat if 

the file would not support an inference of an occur- 

rence or non-occurrence, then we would further presume 

that the person who created that file or who had the 

information that was available in that file would be 

in a state of ignorance with respect to that fact. 

Furthermore, upon the basis of my knowledge of 

decision making and also on the basis of my prac- 

tical experience, when people are ignorant about 

a fact, that fact does not Decome a determinant 

in the decisicn making. 

(Id. 1684-85). 

In sum, while the CSS instrument permitted the coders to 

reflect the distinction between the affirmative non-existence of 

a fact in the file (coded blank), and uncertainty about its 

rossible non-existence {coded "U"), once statistical analysis 
  

began, the "U" was properly recoded as not present. 

Baldus offered as an example of this logic the aggravating 

variable that the "victim pled for his life." If there had been 

witnesses present during the crime, a coder would code that 

variable either present or absent, depending on the witnesses’ 

accounts. But if there were no witnesses or other evidence, 

Baldus reasoned there was no way to make an inference either 

way, ané the item would be coded "og." (Id. 1685-86; see also id. 
  

1155-58).356/ 

  

36/ The District Court's counter-example ccmpletely missed the 

point. Twice the Court adverted to a case in which the defendant 

told four other people about the murder, but in which the coder 

was unable to determine from the file whether the defendant had 

(Continued) 

 



  

This explanation casts in a radically different light the 

District Court's ominous-looking list of variables coded "U" in 

more than ten percent of the dats. (R. 1163-65). Many involve 

either state-of-mind or relational variables that are often 

unknown to any outside investigator. For example, while 

"Defendant's Motive was Sex" may be important if known to a 

prosecutor or jury, if the fact can be neither eliminated nor 

confirmed from the evidence, Baldus' rule would be to code it 

"unknown," and ultimately discount its impact either way by 

treating it as non-existent. 

The District Court appeared to challenge the basic loglc of - 

this coding treatment: “the decision to treat the "U" factors 

as nct being cresent in a given case seems highly guesticnakle 

... it would seem that the more rational decision would be to 

treat the "U" factors as being present.” (R. 1163). Yet no 

expert in the case -- neither petitioner's (id. 1184-30 (Baldus); 

  

36/ (continued) 

been bragging or expressing remorse. (R. 1160, 1161-62). The 

Court reasoned that "[a]s the witnesses to nis statement were 

available to the prosecution and, presumably, to the jury, that 

information was knowable and probably known. It was not, 

however, captured in the study." (R. 11860). 

The Court's reasoning assumes that the defendant must have 

either been bragging or expressing remorse, and that the prose-~ 

cutor, by interviewing the four witnesses, must have ascertained 

which. It is equally likely, however, that the defendant told 

others about the murder without either bragging or expressing 

remorse. In that case, the file would properly reflect the 

contact with the witnesses, but would not reflect bragging or 

remorse. Under Baldus' rules the coder would code "unknown" and 

the bragging and remorse would ultimately be treated as not 

having occurred. Only if the prosecutor and jury had known of 

bragging or remorse, but the parole officer had somencw failed 

to learn of it in his review of the transcript, in his talks 

with the police and the District Attorney, or in his review Of 

police files, would "U" be a misleading code. 

  

-43= 

 



  

1761-63 (Berk)), nor respondent's (id. 1503; (Katz); 1656-58 

(Burford)) suggested that a "U" should be coded as "1" or "present" 

for purposes of analysis. Indeed, Dr. Berk, petitioner's 

rebuttal expert, testified that the National Academy of Science 

panel on sentencing had expressly considered this issue during 

.its two-year study of sentencing research and had endorsed the 

very approach Baldus adopted. (Id. 1761-63). The District 

Court's conclusion that a contrary code should have been used 

is without foundation in the record.37/ Ber 
Ld 

(iii) The Statistical Methods Were valid and Appropriate 
  

Having gathered and compiled their data, Baldus 

and his colleagues employed a wide variety of statistical 

procedures £0 analyze it, including cross-tabular ccmparisons 

(id. 683, 701-05), unweighted least squares regressions (id. 

689-700), weighted least squares regressions (id. 1222-23), 

logistic regressions (id. 917-18), index methods (id. 1234-386), 

and qualitative case comparisons, or so-called "cohort" studies, 

(id. 1045-33}, 

Baldus employed these methods on progressively more elaborate 

"models," or groups of variables chosen tO determine whether the 

race-of-victim and race-of-defendant disparities could be reduced 

  

37/ Moreover, Baldus restified that, among a series of al 

tives analyses he conducted to test the effects of nis "Qo" 

rules (see generally Fed. Hab. Tr. 1484-1704 and DB 120-12 

he recoded unknowns as "1" or "present" just as the Court 

recommended. The effects on racial disparities "were withi 

percentage point of one another and all the comaificisnss £ 

were statistically significant in one analysis were in the 

other." (Id. 1701). Another alternative YS ie emplovin 

"list-wise “deletion” of all cases with "U" codes, recommenda 

the State's principal expert, (id. 1501-02), also nad no adv 

effect (id. 1695-96); see DB 120); indeed it increased the 

race-of-victim coefficient by two percentage points. 

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or eliminated: Baldus explained that no single method of 

statistical analysis, and no single model, was invariably infall- 

ible, but that if statistical results could persist, no matter 

what methods were emploved, a researcher could have great confidence 

that the "triangulated" results reflected real differences: 

It's this widespread consistency that we see in the 

results ... it's this triangulation approach, if you 

will, that provides the principal basis for our 

opinions that there are real racial effects operating 

in the Charging and Sentencing System. 

. 

(Id. 1082-83). : 

The District Court failed throughout to appreciate the 

logic of this approach. Instead, it rigidly, and petitioner 

submits erroneously, refused to admit "except as to show process” 

a series of cRlevant models, solely because they did not include 

variables the Court thought should be included. (See id. 742-46; 

755: 760; 768; 771-73; 779; 981-82; 984). Indeed, the Court's 

approach throughout fhe hearing was to fault Baldus' models for 

failure to account for unspecified "unique" factors. (E.g., id. 

825; Ped, OCt. Tr, 92).3%/ The Court reasoned =-- contrary to 

the expert testimony of Baldus (Fed. Hab. Tr. 808-19); wWocdworth 

(Fed. Oct. Tr. 55); and the State's expert Dr. Burford (id. 1673) 

  

38/ The Court also pL in its opinion that, at the 

invitation of petitioner's experts, it was able to test its 

own "Lawyer's Model," EIR by the District Court during 

the August 1983 hearing to reflect those factors ic believed to 

be most likely to predict the sent encing outcome. (Id. 810; 1426; 

1475-76; 1800-03; see C-1). Baldus' subsequent analyses employ- 

ing the Court's own model showed sharp differences in sentencing 

outcomes by racial category. (R., 735, 738). Strong and scatis- 

tically significant race-cf-victim effects were reflected upon 

regression analysis, whether employing the least squares (R. 

738) or the logistic approach (R. 739), and Baldus averred that 

these analyses further reinforced his earlier testimony. (See 

generally R. 731- reall J V0 
  

-45=- 

 



  

—— that since Balaus testified that he had identified 230 

variables that might be expected to predict who would receive 

death sentences, "it follows that any model which does not 

include the 230 variables may very possibly not present 2 whole 

picture.” (R. 1171). If respondent had demonstrated that peti- 

tioner's racial disparities only appeared in smaller models, but 

disappeared or were substantially reduced whenever 230-variable 

analyses were conducted, the District Court's position would 

rest on logic and precedent. Since, however, 3s we will demon- 

strate below, the race-of-victim disparities continue to show 

strong effects in large models as well as small, the District 

Court's position is without support. As a matter of fact, it is. 

clearly erroneous; not even rhe State's expert advanced such a 

contention. As a matter of law, it has no allies. No prior case 

has ever intimated that only large-scale models can constitute 

relevant evidence in a statistical case. See, £.9.. Eastland v. 
  

Tennessee Valley Authority, 704 F.2d 613, 622-23 n.14 (11th Cir. 
  

1983). 

(iv) The Results Make Out A Prima Facie Case 

Of Racial Discrimination 
  

To begin his analysis, Baldus first calculated. sentenc- 

ing outcomes by race, unadjusted for any additional variables or 

background factors.39/ The pattern Re found (DB 63) revealed 

marked racial disparities:40/ 

  

1 

39/ Each of these analyses was conducted on the CSS data, unless 

otherwise noted. : : 

40/ These results closely parallel earlier Georgia findings. 

Sowers & Pierce, "Arbitrariness and Discrimination under 

Post-Furman Capital Statutes," 26 CRIME & DELINC. 563, 599 

-46- 

 



  

3lack Defendant/ white Defendant/ Black Defendant/ White Defendant/ 

    
  White Victim . White Victim Black Victim Black Victim 

22 .08 01 33 

(50/228) (58/745) (18/1428) (2/64) 

(Id. 730-31). However, Baldus made it clear that "[t]his table 

merely generates an hypothesis ... it has no controls. There are 

many rival hypotheses that could explain these relationships.” 

{I&. 731). 

Baldus thus oegan a series of analyses, steadily adding 

‘background variables to his multiple regression analyses, 

thereby "controlling for" or holding constant the effect of those 

factors, to see if an independent racial effect would persist. 

Baldus found strong racial effects when he controlled for all of 

Georgia's statutory aggravating circumstances (DB 78) and in 

addition, for 75 mitigating factors (DB 79). In D2 80, Baldus 

presented an important table which compared the racial effects 

in several, increasingly complex models. Excerpts from that 

table reveal the following: 

      
  

After further After 

Before After Adjust- Simultaneous Simultaneous 

‘Adjustment ment for the Controls for Control for 

for any Back- Other Vari- Nine Background 230 + Non Racial 

ground Factors able Racial variables 4 Factors 

Race of 
victim 10 «37 «07 .06 

(.0C01) {.0001) (.001) £.0%) 

Race of 
Defendant -.03 +10 .04 .06 

{.03) (001) (230) {.01) 

Baldus noted that while the coefficients41/ for race-of-victim 

declined somewhat as additional background variables were added 

  

41/ Professor Baldus testifi ed 
1s a summary figure that provid 

- 

es 

  

(Continued) 
wy Ny i 

 



  

to the analysis, and that while the measures of statistical 

significance also declined ,42/ both figures remained signifi- 

cant. Baldus explained that it is "quite unusual to see an 

event like that,” since so many of the 230 variables were 

themselves correlated with both the race of the victim and the 

sentencing outcome, a fact that could be statistically expected 

to suppress the magnitude of the racial variable. (Id. 804). 

To examine the relative power of the race-of-victim 

and race-of-defendant variables in sentencing decisions, Baldus 

compared them with other important sentencing variables, rank- 

ordered by their coefficients (DB 81, 82). The impact of the 

race-of-victim variable proved of the same order of magnitude 

as major aggravating factors such as whether the defendant had 

a pricr record of murder, Or whether the defendant was the 

prime mover in the crime (1d. §12-1%)., 

Baldus then continued his analyses, looking at other 

models that might eliminate rhe racial effects. Petiticner's 

Exhibit DB 83 includes a variety of such models, some employing 

all 230 of Baldus' recoded variables. All of these models show 

  

41/ continued 

and without the presence of a variable, across all the cases. 

(Id. 830~ -34). A coefficient of .06 for a variable means that 

rhe presence of that variable, after controlling for all other 

factors in the model, would increase rhe outcome of interest 

(here, a death sentence) Dy an average of six percentage points. 

(14. 692-93). 

42/ Statistical significance, Baldus explained, is a measures 

SE the likelihood that if, .in the universe of cases as a whole, 

there are in fact no disparities, one could have obtained 

disparate results merely DY chance. (Id. 712-13). Normally 

expressed in "p" values, 2 figure of .01 means the likelihood 

rnat the coefficient 1s merely a chance finding is 1-in-100; a 

figure of .0007 would mean 1-in-10,00C0. 

“iG 

 



  

strong race-of-victim and race-of-defendant effects.43/ 

I. W.L.S. REGRESSION RESULTS 
  

A B c 

Coefficients and Level 

Non-Racial of Statistical Significance 

Variables in 
The Analysis 

  

Race of Victim Race of Defendant 
  

  
  

a) 230 + aggravating, 

mitigating, evidenti- 

ary and suspect 

factors 

b) Statutory aggravating 

circumstances and 

126 factors derived 

from the entire file 

by a factor analysis 

c) 44 non-racial vari- 

ables with a statisti- 

cally significant 

relationship (P<.10) 

to death sentencing 

Qu
 14 legitimate, non- 

arbitrary and statis- 
tically (P<.10) sig- 
nificant factors 
screened with W.L.S. 

regression procedures 

e) 13 legitimate, non- 

arbitrary and statis- 
tically significant 

(P<.10) factors 
screened with logistic 
regression procedures 

.06 
(.02) 

.07 
{.01) 

.07 
(.0002) 

.06 
(.0C1) 

.086 

(.001) 

.06 
(02) 

.06 
(.019) 

.086 
(.0004) 

.06 
(.001) 

.05 
{.02) 

Baldus adopted yet a different approach td analyze 

precisely where in the system the racial effects were having 

their impact. Employing a racognized social science technique, 

  

43/ In light of DB 81 and DB 83, as well as DB 102 and DB 1053, 

The District Court was clearly erroneous in asserting that 

"(t]he best models which Baldus was able to devise whic! 

account tc any significant degree for the major non-racial 

variables, including strength of the evidence, produce no 

statistically significant evidence that race plays a part in 

either of those decisions in the State of Georgia." {R.. 1787). 

wd Go 

 



  

the "index method," (see id. 877, 1234-36) he sorted the cases 

into roughly equal groups based upon their predicted likelihood 

of receiving a death sentence (id. 877-79); he then analyzed 

racial disparities within those groups, which included increas- 

ingly more aggravated cases. (See DB 89). Noting that the likeli- 

hood of a death sentence rises dramatically in the most aggravated 

groups, Baldus further divided the top groups into eight subgroups 

for analysis. As the excerpted portion of that table (DB 90) 

reveals, share are clear race-of-victim differences - especially 

in the middle range of cises -=- which are statistically significant 

overall at a .01 (1=-in=-100) level. 

  

  
  

  

A ¥ ET 2 E 

Predicted Average 

Chance of Actual Death Sentencing Arithmetic 

a Death Sentencing Rates for Black Difference 

Sentence Rate for Defendant Involving in Rate of 

1 (least) the Cases White Black the Victim 

to: 8 at Each Victim Victim Rates 

(highest) Level Cases cases (Col, C~ Coli, D) 

1 .0 +0 .0 : 

(0/33) + 40/9) (0/19) .0 

2 .0 .0 +5 .0 

(0/33) (0/8) (8/27) 

3 .08 30 + 11 «39 

(0/70) {3/10) (2/18) 

4 «07 as 0 vod 

(4/57) (3/13) (0/15) 

3 «a7 oD «37 .18 

(15/58) (8/26) (2/32) 

6 17 “33 05 33 

(11/64) (3/8) (1/20) 

7 .88 «97 75 16 

(51/38) (20/22) (6/8) 

Baldus observed that there was little disparity in the less 

aggravated cases, "[olut once the death sentencing rate 

pegins to rise, vou'll note that it rises first in the white 

 



  

victim cases. It rises there more sharply than it does in the 

black victim cases." (Id. 882-83).44/ Baldus testified that, 

in his opinion, these data supported an hypothesis first advanced 

by Harry Kalven and Hans Zeisel in their work, THE AMERICAN JURY 

164-67 (1968), 

"what they call the liberation hypothesis and in short 

what it was, that the exercise of discretion is concen- 

crated in the area where there's real room for choice. 

[W]hen you look at the cases in ... the midrange, 

where the facts do not call clearly for one choice or 

another, that's where you see there's room for exercise 

of discretion ... the facts liberate the decision 

maker to have a broader freedom for the exercise 

of aiscretion, and it is in the context of arbitrary 

decisions that you see the effects of arbitrary or 

possibly impermissible factors working. 

(Id. 844) 

Saldus and Woodworth marshalled a substantial body of 

evidence in support of this liberation hypothesis during the 

evidentiary hearing. The most striking illustration was the 

figure constructed by Woodworth to illustrate the differential 

rates at which the likelihcod of receiving a death sentence rises 

in Georgia fer black victim and white victim cases, given similar 

levels of aggravation. Woodworth noted that, according to this 

graph, petitioner Warren McCleskey's level of aggravation 

"slace(s] him in a class of defendants where there is roughly a 

  

44/ The District Court apparently misunderstood those tables. 

It noted, as if the fact were contrary to Baldus' testimony, 

that DB 89 reports "higher racial disparities in the most aggrav- 

ated level of cases," (emphasis added). It also discounted the 

results in DB 90 because, unlike DB 89, it was purportedly not 

"oredicated on a multiple regression analysis." (R. 1205). In 

fact, the liberation hypothesis predicts that « Ltd 

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which comprises the subset of cases in which the risk Of a deat! 

sentence becomes significant, that the disparities in the middle 

range appear. (Fed. Hab. Tr. 882-83) Like DB 83, morsover, DB 90 

was built ov employing regression analysis; tne Court's surmise t¢ 

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twenty percentage point of greater disparity between black victim 

cases [and] ... white victim cases." (Id. 1734-35). 

[See GW 8] 

Baldus performed a wide variety of further analyses 

which we cannot fully review within the confines of this brief. 

A few, however, require additional attenticn. The District Court, 

unguided by experts .for either petitioner or respondent, suggested 

that DB 95 was "perhaps the most significant table in the Balaus 

study," since it "measures the race of the victim and the race of 

the defendant effect in the prosecutorial decision td seek the 

death sentence and the jury decision to impose the death sentence.” 

(R. 1185). The Court noted that "tlhe coefficients produced by 

the 230-variable model on the Charging and Sentencing Study data 

base [in DB 95] produce no statistically significant race of the 

victim effect either in the prosecutor's decision ... Or in the 

jury sentencing decision." (R. 1188).. 

The Court's statement in a literal sense is accurate. 

It disregards, however, that the CSS figure, P=.06, is in fact 

maryinally significant; that the equivalent PRS model does pro- 

duce a statistically significant result;45/ that the smaller 

model results were highly significant; 48/ and that an analysis 

  

45/ The Court discounted this figure as "totally invalid 

for [the PRS Mcdel] contains no variable for strength 

of the evidence." (R. 1185). In so doing, it ignored Baldus' 

obvious point that strength of the evidence was substantially 

controlled for in the PRS, since the universe was limited by 

  

definition to cases in which a conviction -- presumably based 

on evidence sufficient beyond a reasonable doubt =-- had 

been obtained. (Fed. Hab. Tr. 124-25). 

46/ The Court stated that it "knows of no statistical convention 

wnich would permit a researcher arbitrarily to exclude factors on 

the basis of artificial criteria.” (R. 1186). Baldus in fact 

cestified without contradiction that such a procedure 1s commonly 

used in statistical analyses. (The State's principal expert 

employed a variant of it throughout his testimony.) (See, e.d., 

Resp. Ex. 26, 43, 45, S50). 
-52- 

 



  

of the combined effect of the prosecutorial and jury decision 
  

(see DB 98) showed a series of highly statistically significant 

race-of-victim effects. In truth, what the Court has done 1s to 

identify one of the very few large model coefficients for the 

race-of-victim variable in either study that is not statistically 

significant, brand it as a key figure, and then disparage all 

collateral evidence that places it in context. Such an approach 

to petitioner's comprehensive statistical evidence constitutes a 

legally insufficient basis to reject petitioner's persistent 

racial findings.47/ 

THe second series of analyses that require comment 

are those directed toward Fulton County (Where petitioner was 

tried) and toward petitioner's own case. Baldus conducted both 

quantitative and qualitative studies of death sentencing rates 

in Fulton County which were reflected in DB 106 through DB 116.48/ 

Baldus testified that a repetition in Fulton County of the pro- 

gressively more elaborate analyses he had conducted statewide 

"showed a clear pattern of race-of-victim disparties in death 

sentencing rates among the cases which our analyses suggested 

were death eligible." (Id. 983). Regression analyses at success 

  

47/ The District Court also chose to impugn the integrity 

of petitioner or his experts in discussing this exhibit, 

noting that "we are given no outcomes based on the larger 

scaled regression," although the Court "does not understand 

that the analysis was impossible, but instead ,,. that 

mecause of the small numbers the result produced may not have 

been statistically significant." (R. 1137). The Court is 

wrong; such analyses employing these small numbers are 

statistically inappropriate. See 2.9., galinski and Feldt, 

"The Selection of Variables in Multiple Regression Analysis," 

7 J. EDUC. MEASUREMENT, 151 (1970). We note, morever, that 

noth in this table and elsewhere, petiticner and his experts 

regularly reported non-significant findings sven when statisti- 

cal procedures could be appropriately conducted upon them. 

  

48/ The District Court refused t 

DB 107 (id. 981-92), and DB 108 ( 

they did not sufficiently control 

were irrelevant. This holding is 

o admic DB 106 (id. 979), 

. 984), holding that recause 

or background variables they 

egally erroneous. 

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sive stages in the charging and sentencing process revealed highly 

significant racial disparities at two points: the prosecutor's 

plea bargaining decision and the prosecutor's decision to advance 

a case to the penalty phase. (Id. 1038-39). While Baldus necessar- 

ily tempered his evaluation of these results Decause of the small 

size of the universe, (id. 1040-43), he noted tnat "these coeffi- 

cients are very large, it's not as if we're dealing with small 

coefficients, these are substantial. So that leads me to believe 

that what you're seeing is evidence of a real effect." (Id. 1044). 

To supplement this statistical picture, Baldus con- 

ducted two cohort studies, one of the "near neighbors" cases, 

those which scored most like petitioner McCleskey in an overvall 

"aggravation index." (Id. 986-91). Having identified 32 near 

neighbors, Baldus sorted them into typical, more aggravated, and 

less aggravated groups. (Id. 991). Computing death sentencing 

rates by race of victim and race of defendant, Baldus found sig- 

nificant disparities; in McCleskey's group, the disparity was 

40,  {1d. 993). 

In a second cohert study Baldus examined 17. defendants 

involved in the homicides of police officers. Two among the 

seventeen, including petitioner McCleskey, went to a penalty 

trial. The other defendant, whose police victim was lack, 

received a life sentence. (Id. 1050-52; DB 116). Petitioner's 

sentence was, of course, death. "(T]he principal cenclusion 

rhat one is left with," Baldus testified, "is that ... this 

dea=h sentence that was imposed in McCleskey's case is not 

consistent with the disposition of cases involving police 

  officer victims in this county." (See also 1085-88). 

Finally, Dr. George Woodworth, petitioner's expert 

statistician, testified concerning the likely impact of the 

-54- 

 



  

racial variables on a case at petitioner McCleskey's level of 

aggravation. Woodworth noted that, using his exhibit Gw-3, 

ne had computed the race-of-victim disparity at petitioner's 

level of aggravation to be 22 percentage poincs., (14. 1738). 

He then turned to DB 90 and observed an 18 percentage point dis- 

parity by race at petitioner's level. (Id. 1739). Calculated by 

use of an unweighted logistic regression, the racial disparity 

was 23 percent. (Id. 1740). Wocdworth concluded: 

So it would seem that at Mr. McCleskey's level of 

aggravation the average white victim case has approxi- 

mately a twenty percentage point higher risk of receiv- 

ing the death sentence than a similarly situated black 

victim case. 

(Id. 1740) .43/ 

Petitioner's final expert was Dr. Richard Berk, . 

a highly qualified social scientist (see RB 1) and a frequent 

consultant on criminal justice matters to the United States 

Department of Justice. (Id. 1753). Berk in fact had served on 

a distinguished National Academy of Sciences panel charged 

with reviewing all previous research on criminal sentencing 

issues in order to set standards for the conduct of such 

research. (Id. 1761-62). After reviewing Baldus' studies, 

  

49/ Beyond this statistical and qualitative evidence on cases 

Tike petitioner's, petitioner introduced the depositicn of Dis~- 

trict Attorney Lewis Slayton. (Id. 1319). In that deposition, 

Slayton acknowledged that his office has no express written 

or unwritten policies or guidelines to govern the disposition of 

homicide cases at the indictment stage (Dep., 10-12), the plea 

stage, (Dep. at 26) or the penalty stage (Dep., 31, 41, 58-539). 

Moreover, murder cases in his office are assigned at different 

stages to one of a dozen or more assistant district attorneys 

(Dep., 15, 45-48), and there is no one persecn who invariably 

reviews all decisions on homicide dispositions. (Dep., 12-14, 

20-22, 28, 34-38). Slayton confessed that his office does not 

always seek a sentencing trial in a capital case, even when 

statutory aggravating circumstances are present (Dep., 38-33). 

Slayton testified further that the decisionmaking process in his 
office for seeking a death sentence is "probably ... the same” as 

it was in the pre-Furman period. (Dep., 59-61). 

 



  

analyzing the data, and reviewing Baldus' preliminary report, 

Berk's opinion on Baldus' study, especially its findings on 

race, was virtually unqualified: 

This has very aigh credibility, especially compared 

ro the studies that [The National Academy of Science 

panel] ... reviewed. We reviewed hundreds of studies 

on sentencing over this two-year period, and there's 

no doubt that at this moment, this is far and away 

the most complete and thorough analysis of sentencing 

rhat's been done. I mean there's nothing even close. 

(Id. 1766.) 

Berk's conclusion is fully warranted. The data was 

reliable and carefully compiled. The regression analyses: 

relied upon by petitioner were properly conducted Dy leading 

experts in the field. These analyses were carefully monitored 

for possible statistical problems, and they have been found 

to be both statistically appropriate and accurate in their 

assessment of the presence and magnitude of racial disparities 

in capital sentencing in Georgia. These disparities are real 

and persistent; they establish petitioner's prima facie case. 

C. The Law: The District Court Misapplied the Law 

In Rejecting Petitioner's Prima Facie Case 
  

We have already pointed out many instances in which 

the District Court misread the record, overlooked testimony, 

or made findings contrary to the evidence presented oy 

both parties -- petitioner and respondent alike. Yet the 

principal errors committed by the District Court on this 

record stem from its apparent misunderstanding of statistical 

proof, and its misapplication of controlling legal authority. 

h 

In effect, the District Court created for itself a roster of ¥ 

new legal standards and principles to judge the quality of 

petitioner's data, the admissibilit O nh
 

HS)
 

t 
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 exhibits, tne 

appropriateness of his models, and even the usefulness of 

-585~-