Opinion

    United States Court of Appeals 
ELEVENTH CirculT 

SPENCER D. MERCER OFFICE OF THE CLERK IN REPLYING, GIVE NUMBER 

CLERK S68 FORSYTH STREET. N.W. OF CASE AND NAMES OF PARTIES 

ATLANTA. GEORGIA 30303 

  

January 29, .1985 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: 

No. 84-8176 WARREN McCLESKEY v. RALPH KEMP, WARDEN 

  

Enclosed is a copy of the court's decision this day entered in the 
above case. A judgment has this day been entered in accordance 
therewith pursuant to Rule 36 of the Federal Rules of Appellate 
Procedure. 

Rules 39, 40 and 41, P.R.A.P., and Circuit Rules 28, 26 and 27 
govern costs, petitions for rehearing and mandates, respectively. 
To be timely, a petition for rehearing or a suggestion of en banc 
consideration must be filed in the clerk's office within 20 days 
from this date. Placing the petition in the mail on the 20th day 

will not suffice. 

  

  

    

  

Circuit Rule 27 provides that, "A motion for a stay of the issuance 
of a mandate in a direct criminal appeal filed under F.R.A.P. 41 
shall not be granted simply upon request. Ordinarily the motion 
will be denied unless it shows that it is not frivolous, not filed 
merely for delay, and shows that a substantial question is to be 
presented to the Supreme Court, or otherwise sets forth good cause 

for a stay." 

  

If you are court appointed pursuant to the Criminal Justice Act, 

your attention is called to Addendum Four to the Circuit Rules, 
section (e) (4) which provides: "In the event of affirmance or other 
decision adverse to the party represented appointed counsel shall 
promptly advise the party in writing of the right to seek further 

review by the filing of a petition for writ of certiorari with the 

Supreme Court. Counsel shall file such petition if requested to 

do so by the party in writing." 

  

Very truly yours, 

SPENGER D. MERCER, [Clerk 

;. BY / [pres 
  

Enc. Pepuey rk 
cc: Mary Beth Westmorelan 

Robert H. Stroup 

John Charles Boger 
Anthony G. Amsterdam 

 



  

IOLX 26. PETITION TOR REIRARING AMD IX BANC CONSIDERATION 

(a) Number of Copies 
(1) Tour copies of a petitios for radesriag pursuant to FRAP Rule 40 

. shall de filed; 

(2) Thirteen copies of a suggestion for em baac consideration pure 
suaat to FRAP Rule 1S shall be filed whether for iaitial hearing 
or refisariag. 

(3) Tims - Lxtamsioms. A petition for rehearing oc a suggestion of ea 
base consideratios upos rehesring must be filed vithia 20 days of the datas of the 
opinioca. No idditicssl time shall de allowed for smiling. Counsel should aot rce= 
quest extansiocas of time except for the eset compelling ressons. Priatiag delays 
vill oot be considered sufficiemt justificatiom for extamsions. See FRAP 4O(h). 

(¢) Extraordinary Nature of Suggestions of Pa Basc Coasideratioa. A 
suggestion of en danc coasideration, vhether pou initial nesring or celesriag, is aa 
extraordinary procedure intended to Dring to the attamtiom of the entire court a3 
precedant-setting error of exceptiocmsl i{mportamce in aa appeal or other proceeding, 
and, vith specific reference to a suggestiocm of en banc coasideration upos reheariag, 
1s intended 0 driag to the attemtiom of the entire court a panel opinion that is 
allegedly ia direct coaflict with precedent of the Supreme Court or of this circumat. 
Allaged errors {a a panel's determination of state law, or in the facts of the case 
(including sufficiency of the evidenca), or error asserted in the panel's mise 
applicatica of correct precedent to the facts of the case, are mattars for redearing 
before the panel dut sot for ea baac coasideration. ; 

Counsel are reminded that the duty of coumsel is fully discharged without 
filing a suggestion for rehearing em banc if the case does aot meet the rigid staa- 
dards of FRAP 33(a), aad that the filing of a petitiom for rekeariag or suggestion 
for rehearing ea banc is aot a prerequisite to filing a petitiom for certiorari. 

(4) M4acters Not Comsidersd Ia Banc. Administrative and iateris mattars, 
for example, stay orders, iajumctions pending appesl, sppoiatmeat of counsel, leave 
to appeal 1a forma pauperis, and leave 0 appeal from a aca-finsl order, are aot 
aattars subject 0 ea baac comsideration under MRAP 13. La baac suggestions will aot 
De entertained in such matters but will de referred as a petitios for rehearing to 
the judge or panel that eatared the order sought 29 be reheard. 

  

(e) Procedure. A suggestion of ea baac coasideratioa upom initial hearing 
or rehearing say de sade dy any smmber of ths panel or aay judge of the court ia 
active service. [f em baac coasideratioa is granted, esch party shall furnish to the 
clerk 13 additional copies of every brief the party las previously filed aad 13 
copies of each supplemmatal brief om redearing tie party may file. See also llth 
giz. R. 27(c). 

(f) Form of Suggestiom. & petitiom for rehearing should iaclude a cer 
tificate of interested persons, a title page, aad should de dound ia a white cover. 
The petition or suggestioa shall state oa the cover vhether it requests cedeariag dy 
tle panel or suggests cebsariag em baac or doth. A suggestioa for rehearing en daac 
vill also de treated as 21 petition for ressaring Ddefore the origiaal panel. A 
petition for refiesring vill ast de treated as a suggestion for ceheariag em danc. A 
suggestion of ea 3anc coasideratioa shall coatain he following items 1a his se- 
quence: 

(1) cegtificats of interested persons as required by (lth Cir. R. 
22(£)(2); 

(2) where the party suggesting ea danc coasiderationa is represeatad 
by counsel, coe or both of the following statements of counsel as applicable: 

{ express a Ddelief, bDased on 1 reasoned and studied 
professional judgment, that the panel decision 1s coatrary 
to the following decisioca(s) of the Supreme Court of the 
United States or the precedents of this circuit and that 
consideration by the full court is aecessary 0 secure aad 
sai1atain uniformity of decisions 1a this court: [cite 
specifically the case or cases] 

RENG-8 

(Rav. 12/82) 

 



  

| expesss a belief, dased cm & resssceaed aad studied 
professional judgment, that this sppesl involves cas or sore 
questions of exceptiocasl importamcs: [set fortd each quest- 
{ea {2 ome semtemcs] 

/s/ 

ATIORIEY OF RXCORD IR 

(3) table of comtamts and citatioas; 

  

(4) stacement of the issue(s) ssserted to merit em banc coaside 
erstioa; 

(3) statement of the course of proceedings and dispositioam of 
the case; 

(6) scacament of amy facts aecessary to argument of the issues; 

(7) argument aad authorities. These shall comcern oaly the 
issues aad shall address specifically set caly their seri: 
but viky they are comtended to be wvortly of ea Dasc coaside- 
ratioa; 

(8) coaeclusiom; 

(9) careificate of servics. 

(sg) ATR to Suggestion. A response 3 a suggestion of em baac 
consideration s 30t be submitted unless requestad by the cours. 

(k) . A suggestion of em damc comsideratics shall set exceed 
1S pages, aad if sade joiatly vith a petitiem for redesring the combined docu- 
sents shall aot exceed 1S pages. (For other provisioss relatiag 20 determi- 
aaciom of causes Dy ths court em banc aad petities for rehesriag, see IRAP 12, 
35, and 0.) 

(1) [Ia Bame Briefing Schedule. Am en bamc driefing schedules shall de 
set dy the clerk for a cases 1n vhich rsfieariag ea basc is grasted dy he 
court. Ia Bamc Ddriefs, 13 copies of which are required, are due siz weels 
before the ea damc comsideratios iad counsel vill lave three 20 four weeks %o 
prepare aad submit these mstarials, unless he case is expeditad by the coart. 
Every party sust them furnish to the clerk 1S additiocmal copies of every drief 
the party previously filed. [a Baac Ddriefs should be prepared ia the same 
sanner and form as opemiag briefs. See [OP IV.F.2. aad Circuit Rule 22. Ia 
addition to requirements of Cirenit Rule 22, the cover for all ea baac driefs 
shall contain the title "Ya Baac Brief”. 

(J) Semior Circuit Judges' Participatios. Semior circuit judges of 
the Ileventd Circmat assigned 20 juty jursuact 35 statuts and court cules eay 
31C eg daac revieviag decisions of paneis of vaich they vere samders. 

  

(k) Effect of Granting Rehesring Ia 3anc. Unless othervise expressly 
provided, the effect of granting a rcelearing ea danc is to vacate the pasel 
Jpiaiom aad to stay the saadate. 

  

Cross Reference: FRAP 4, 27, 32(b), 3S; [OP VT C 

(Rew. 12/82) 

 



  

FOR THE ELEVENTH CIRCUIT 

IN THE UNITED STATES COURT OF APPEALS Se 

Bd Ee Ul ee hr A 

No. 84-8176 

WARREN McCLESKEY, 

< Petitioner-Appellee, 

Cross-Appellant, 

versus 

RALPH KEMP, WARDEN, 

Respondent-Appellant, 
Cross-Appellee. 

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

(January 29, 1985) 

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, 
KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON, AND CLARK, Circuit 

Judges. 

RONEY, Circuit Judge, in which Judges Tjoflat, Hill, Fay, Vance, 
Henderson and Anderson join¥*: 

*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 have 
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 opinion on the Giglio issue but joins in the 
opinion on all other issues. 

Chief Judge Godbold dissents from the. judgment of the Court on the 
Giglio issue but joins in the opinion on all other issues. 

Judges Johnson, Hatchett and Clark dissent from the judgment of the 
Court on the constitutional application of the Georgia death 
sentence and the Sandstrom and Giglio issues and each has written a 

  

separate dissenting opinion. 

 



  

This case was taken en banc principally to consider 

the argument arising in numerous 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 

hearing which focused on a study by Professor David C. Baldus, 

the district court concluded for a variety of reasons that the 

statistical evidence was insufficient to support the claim of 

unconstitutionality in tne 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 ciaim 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 (1972). We affirm the judgment denying 

relief on all other points raised by the defendant, that is: (1) 

that defendant received ineffective assistance of counsel; (2) 

that jury instructions contravened the due process clause in 

 



  

violation of Sandstrom v. Montana, 442 U.S. 510 (1979); and (3) 
  

that the exclusion of death-scrupled jurors violated the right 

to an impartial and unbiased 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 denied by the court, but reverse the grant of habeas 

corpus relief on the Giglio claims. 

FACTS 

Warren McCieskey was arrested and charged with the murder 

of a police officer during an armed robbery of the Dixie 

Furniture 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 tne front door secured the showroom 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 oy 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 eyewitness’ accounts that it was he who entered 

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

testified that McCleskey admitted to shooting the officer. A 

jail inmate housed near McCleskey testified that McCleskey made 

a "jail nouse 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 

caliber Rossi in a previous holdup. 

PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder and two counts of 

armed robbery. At the penalty hearing, neither side called any 

witnesses. The State introduced documentary evidence of 

McCleskey's three prior convictions 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 convictions and sentences were 

afficmed by the Georgia Supreme Court. McCleskey Vv. State, 245 
  

Ga. 108, 263 S.E.28 146, cert. denied, 449 U.S. 89) (1980), 
  

McCleskey then petitioned 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 (198.). 
  

 



  

McCleskey then filed his petition for habeas corpus 

relief in federal district court asserting, among other things, 

the five constitutional challenges at issue on this appeal. 

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, 580 F. Supp. 338 (N.D. Ga. 1984). 
  

This opinion addresses each issue asserted 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 Sandstrom issue. 
  

GIGLIO CLAIM 

The district court granted habeas corpus relief to 

McCleskey because it determined 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 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.5.. 1350 (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 incarcerated with 

McCleskey, was called by the State on rebuttal to strengthen its 

proof that McCleskey was the triggerman at the holdup. Evans 

testified that McCleskey admitted 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 

officials. 

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. I wasn't promised 

nothing about =-- I wasn't promised 
nothing by the D.A. but the 
Detective told me that he would -- 
he .said he was going to do it 
himself, speak a word for me. That 
was what the Detective told me. 

Q: (by McCleskey's attorney): The Detective 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 

contacted federal authorities after McCleskey's trial to advise 

them of Evans' cooperation and that the escape charges were 

dropped. 

The Trial Testimony 
  

At the trial, the State brougnt out on direct examination 

that Evans was incarcerated on the charge of escape from a 

federal nalfway house. Evans denied receiving any promises 

from the prosecutor and downplayed the seriousness of the 

escape charge. 

Q: [by prosecutor]: Mr. Evans, have I promised 

you anything for testifying today? 

A: No, sir, you ain't. 

Q: You do nave an escape charge still pending, 

is that correct? 

A: Yes, sir. 1l've got one, but really it ain't 

no escape, what the peoples out there tell me, 

because something went wrong out tnere so I 

just went home. I stayed at home and when I 

called the man and toid 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 De 

prosecuted for that escape? 

A: Yeah, I hope I don't, but I don't -- what they 

teil me, tney 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 I 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 nearing 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 ex 

parte communication recommendation alone 1s not 

sutficient to trigger the applicability of Giglio 

v. United States, 405 U.S. 150 (1972). 
  

The prosecutor at petitioner's trial, Russel J. 

Parker, stated that ne was unaware of any 

understandings oetween Evans and any Atlanta 

Police Department detectives regarding a favorable 

recommendation to be made on Evans' federal escape 

charge. Mr. Parker admitted tnat there was 

opportunity for Atlanta detectives to put in a 

good word for Evans with federal authorities. 

However, he further stated that when any police 

officer has been Killed and someone ends up 

testifying for the State, putting his life 1in 

danger, it is not surprising that charges, like 

those against Evans, will be dropped. 

In the absence of any other evidence, the Court 

cannot conclude an agreement existed merely 

because of the subsequent disposition of criminai 

charges against a witness for the State. 

Although 1t is reasonable to conclude that tne state 

 



  

court found that there was no agreement between Evans and the 

prosecutor, 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 violation had occurred. 

Was It a Promise? 
  

The Supreme Court's rationale for imposing this rule is 

that "[t]he jury's estimate of the truthfulness and reliability 

of a given witness may well be determinative of guilt or 

innocence." Napue v. Illinois, 360 U.S. 264, 269 (1959). The 
  

Court has never provided definitive guidance on when the 

Government'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 alleged 

co-conspirator that no charges would be brought against him if 

he testified against the defendant. In Napue, a prosecutor 

promised a witness that in exchange for his testimony the 

prosecutor would recommend that the sentence tne witness was 

 



  

presently serving be reduced. 

In this case, the detective's promise to speak a word 

falls far short of the understandings reached in Giglio and 

Napue. As stated by this Court, "(t]he thrust of Giglio and its 

progeny has been to ensure that the jury know the facts that 

might motivate a witness in giving testimony." Smith v. Kemp, 
  

715 -P.28 1459, 1467 (llth Cir.), cert. denied, 5.8. 
  

e278 LJBR., 2d 699 (1983). The detective's statement 

offered such a marginal benefit, as indicated by Evans, that it 

is doubtful it would motivate a reluctant witness, or that 

disclosure of the statement would have had any effect on his 

credibility. The State's nondisclosure therefore failed to 

infringe McCleskey's due process rights. 

10 

 



  

Was Any Violation Harmless? 
  

In any event, there is no "reasonable 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. Evans' 
  

credibility was "exposed to substantial impeachment even 

without the detective's statement and the inconsistent 

description of his escape. The prosecutor began his direct 

examination by having Evans recite a litany of past 

convictions. Evans admitted to convictions for forgery, two 

burglaries, larceny, carrying a concealed weapon, and theft 

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

attorney attempted to portray Evans as a "professional 

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). 
  

McCleskey claims Evans' testimony was crucial because the 

only other testimony which indicated he pulled the trigger came 

from his codefendant, Ben Wright. Ben Wright's testimony, 

McCleskey urges, would have been insufficient under Georgia law 

to convict him without the corroboration provided by Evans. In 

il 

 



  

Georgia, an accomplice's testimony alone in felony cases is 

insufficient to establish a fact. O0.C.G.A. 3 24-4-8. Wright's 

testimony, however, was corroborated by McCieskey's own 

confession in which McCleskey admitted participation in the 

robbery. See Arnold v. State, 236 Ga. 534, 224 S.E.2d 386, 388 
  

(1976). Corrobration need not extend to every material detail. 

Blalock v. State, 250 Ga. 441, 298 S.E.2d 477, 479-30 (1983); 
  

Cofer v. State, 166 Ga. App. 436, 304 S.E.2d 537, 539 (1983). 
  

The district court thought Evans' testimony critical 

because of the information he supplied about makeup and 

McCleskey's intent in shooting the police officer. Although we 

agree that his testimony added weight to the prosecution's 

case, we do not find that it could "in any reasonable 

likelinood have affected the judgment of the jury." Giglio, 

450 U.S. at 154 (quoting Napue v. Illinois, 360 U.S. at 271). 
  

Evans, who was calied 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 

prosecutor presented to the jury three reasons supporting a 

conviction for malice murder. First, he argued that the 

physical evidence showed malicious intent because it indicated 

that McCleskey shot the police officer once in the head and a 

12 

 



  

second time in the chest as he lay dying on the floor. Second, 

the prosecutor asserted that McCleskey had a choice, either to 

surrender or to kill the officer. That he chose to kill 

indicated malice. Third, the prosecutor contended that 

McCleskey's statement to Evans that he still would have shot 

his way out if there nad been twelve police officers showed 

malice. This statement by McCleskey was not developed at 

length during Evans' testimony and was mentioned only in 

passing by the prosecutor in closing argument. 

Evans' testimony that McCleskey had made up his face 

corroborated the identification testimony of one of the 

eyewitnesses. Nevertheless, this evidence was not crucial to 

the State's case. That McCleskey was wearing makeup helps to 

establish he was the robber who entered the furniture store 

through the front door. This fact had already been directly 

testified to by McCleskey's accomplice and two eyewitnesses as 

well as corroborated by McCleskey's own confession. That 

Evans' testimony buttresses one of the eyewitnesses’ 

identifications is relatively unimportant. 

Thus, although Evans' testimony might well be regarded as 

important in certain respects, the corroboration of that 

testimony 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 

13 

 



  

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 

administered arbitrarily, ‘eapriciousiy, 25d whimsically in the 

State of Georgia," and (2) it "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 Constitution. 

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 rejected 

by this Circuit in Spinkellipk vy. Wainwright, 3578 F.24 582, 
  

612-14 (5th Cir. 1978) “... but] petitioner's Fourteenth 

Amendment claim may be appropriate for consideration in the 

context of statistical evidence which the petitioner proposes 

to present." Order of October 8, 1982, at 4. 

An evidentiary hearing was held in August, 1983. 

Petitioner's case in chief was presented through the testimony 

of two expert witnesses, Professor David C. Baldus and Dr. 

14 

 



  

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 recalled Professor Baldus and Dr. 

Woodworth, and presented further expert testimony from Dr. 

Richard Berk. 

In a comprehensive opinion, reported at 580 F. Supp. 338, 

the district court concluded that petitioner failed to make out 

a prima facie case of discrimination in sentencing based on 
  

either the race of victims or the race of defendants. The 

Court discounted the disparities shown by the Baldus 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 

because the models do not measure decisions based on knowledge 

available to decision-maker and only predicts outcomes in 50 

percent of the cases; and (3) demonstrated multi-collinearity 

among model variables, showing interrelationship among the 

variables and consequently distorting relationships, making 

interpretation difficult. 

1S 

 



  

The district court further held that even 1f 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 methodology, (2) other explanations 

for the study results could be demonstrated, such as, white 

victims were acting as proxies for aggravated cases and that 

black victim cases are acting as proxies for mitigated cases, 

and (3) black-victim cases being left behind at the life 

sentence and voluntary manslaughter stages, are less aggravated 

and more mitigated than the white-victim cases disposed of in 

similar fashion. 

The district court concluded that petitioner 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 evidence 

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 incapabie 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. 

16 

 



  

We adopt the following approach in addressing the 

argument that the district court erred in refusing to hold that 

the Georgia statute is unconstitutionally applied in light of 

the statistical evidence. First, we briefly describe the 

statistical Baldus study that was done in this case. 

Second, we disdnss the evidentiary value such studies 

have in establishing the ultimate facts that control a 

constitutional decision. Third, we discuss the 

constitutional law in terms of what must be proved in order 

for petitioner to prevail on an argument that a state capital 

punishment law is unconstitutionally applied because of race 

discrimination. Fourth, we discuss whether 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 discuss whether tanis study is valid to prove what it 

purports to prove. Sixth, we decide 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 decision that the Georgia law was being 

unconstitutionally applied, much less would it compel such a 

17 

 



  

finding, the level which petitioner would have to reach in 

order to prevail on this appeal. 

The Balidus Study 
  

The Baldus study analyzed the imposition of sentence in 

homicide «cases to determine the level of disparities 

attributable to cage in the rate of the imposition of the death 

sentence. In the first study, Procedural Reform Study (PRS), 

the results revealed no race-of-defendant effects whatsoever, 

and the results were unclear at that stage as to race-of-victim 

effects. 

The second study, the Charging and Sentencing Study 

(CSS), consisted of a random stratified sample of all persons 

indicted for murder from 1973 through 1979. The stuay 

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 

circumstances, mitigating circumstances, strength of evidence, 

time period of imposition of sentence, geographical areas 

Lar ban/ ara), and race of defendant and victim. The data 

collection for these studies was exceedingly complex, involving 

18 

 



  

cumbersome data collection instruments, extensive field work by 

multiple data collectors and sophisticated computer coding, 

entry and data cleaning processes. 

Baldus and Woodworth completed a multitude of statistical 

tests on the data consisting of regression analysis, indexing 

factor analysis, cross tabulation, and triangulation. The 

results showed a 6% racial effect systemwide for white victim, 

black defendant cases with an increase to 20% in the mid-range 

of cases. There was no suggestion that a uniform, 

institutional bias existed that adversely affected defendants 

in white victim cases in all circumstances, or a black 

defendant in all cases. 

The object of 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 involving police 

officer victims in Fulton County, statistical analysis could 

not be utilized effectively. Baldus conceded that it was 

19 

 



  

difficult to draw any inference concerning the overall race 

effect in these cases because there had only been one death 

sentence. He concluded that based on the data there was only a 

possibility that a racial factor existed in McCleskey's case. 
  

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. Social Science is a broad-based field 

consisting of many specialized discipline areas, such as 

psychology, anthropology, economics, political science, history 

and sociology. Cf. Sperlich, Social Science Evidence and the 
  

Courts: Reaching Beyond the Advisory Process, 63 Judicature 
  

280, 283 n. 14 (1980). Research consisting of parametric and 

nonparametric measures is conducted under bota 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 understand mankind and its institutions in 

order to more effectively plan, predict, modify and enhance 

society's and the waividual's circumstances. Social Science 

as a nonexact science is always mindful that 1ts research is 
  

dealing with highly complex behavioral patterns and 

institutions that exist in a highly technical society. At 

best, this research "models" and "reflects" society and 

20 

 



  

provides society with trends and information for broad-based 

generalizations. The researcher's intent is to use the 

conclusions from research to predict, plan, describe, explain, 

understand or modify. To utilize conclusions from such 

research to explain the specific intent of a specific 

behavioral sicuation goes beyond the legitimate uses for such 

research. Even when this research is at a high level of 

exactness, in design and results, social scientists readily 

admit their steadfast hesitancies to conclude such results can 

explain specific behavioral actions in a certain situation. 

The judiciary is aware of the potential limitations 

inherent in such research: (L) the imprecise nature of the 

discipline; (2) the potential inaccuracies in presented data; 

(3) the potential bias of the researcher; (4) the inherent 

problems with the methodology; (5) the specialized training 

needed to assess and utilize the data competently, and (6) the 

debatability of the appropriateness for courts to use empirical 

evidence in decisionmaking. Cf. Henry, Introduction: A 
  

Journey into the Future-- The Role of Empirical Evidence in 
  

Developing Labor Law, 1981 U. Ill. L.Rev. l,4; Sperlich, 63 
  

Judicature at 283 n.l4. 

Historically, beginning with "Louis Brandeis' use of 

empirical evidence before the Supreme Court ... persuasive 

social science evidence has been presented to the courts.” 

21 

 



Forst, Rhodes & Wellford, Sentencing and Social Science: 
  

Research for the Formulation of Federal Guidelines, 7 Hofstra 
  

L. Rev. 355 (1979). See Muller v. Oregon, 208 U.S. 412 (1908); 
  

Brown v. Board of Education, 347 U.S. 483 (1954). The Brandeis 
  

brief presented social facts as corroborative in the judicial 

decisionmaking process. O'Brien, Of Judicial Myths, 
  

Motivations and Justifications: A Postscript on Social 
  

Science and the Law, 64 Judicature 285, 288 (1981). The 
  

Brandeis brief "is a well-known technique for asking the court 

to take judicial notice of social facts.” Sperlich, 63 

Judicature at 280, 285 n.3l. "It does not solve the problem 

of how to bring valid scientific materials to the attention of 

the COUZL wv.» 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.” 

Xa. 

This Court has taken a position that social science 

research does play a role in judicial decisionmaking in 

certain situations, even in light of the limitations of such 

research. Statistics have been used primarily in cases 

addressing discrimination. 

Statistical analysis is useful only to show facts. In 

evidentiary terms, statistical studies based on correlation are 

circumstantial evidence. They are not direct evidence.  



  

Teamsters Vv. United States, 431 U.S. 324, 340 (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. 

The usefulness of statistics obviously 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 

motivation must be proved, the statistics have even less 

utility. This Court has said in discrimination cases, however, 

"that while statistics alone usually cannot establish 

intentional discrimination, under certain limited circumstances 

they might." Spencer vy. Zant," 715 P.,2d4, 1562, "158% (llth 
  

Cir.), on pet.for reh'q and for reh'd en banc, 729 F.24 1293 
  

{lich Cir. 1983). See also Eastland v. Tennessee Valley 
  

Authority, 704 7.24 613, 618 {1ith Cir. 1983); Johnson v. 
  

  

Uncle Ben's, Inc., 628 7.24 419, 421 (5th Cir. 1980), Cert. 
  

23 

 



  

denied, 459 U.S. 967 (1982). These limited circumstances are 

where the statistical evidence of racially disproportionate 

impact is so strong as to permit no inference other than that 

the results are the product of a racially discriminatory intent 

or purpose. See Smith v. Balkcom, 671 F.2d 858 (5th Cir. Unit 
  

B), cert. denied, 459 U.S. 882 (1982). 
  

Statistical evidence has been received in two ways. The 

United States Supreme Court has simply recognized the existence 

of statistical studies and social science research in making 

certain decisions, without such studies being subject to the 

rigors of an evidentiary hearing. Muller v. Oregon, 208 U.S. 
  

412 (1908); Fowler v. North Carolina, 428 U.S. 904 (1976); 
  

Woodson v. North Carolina, 428 U.S. 280 (1976); Jurek v. Texas, 
  

  

428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (9176); 
  

Gregg v. Georgia, 428 U.S. 153 (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 because 

the court relied on empirical generalization." 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 ik &0 the 

"institutions" represented and through a specific ruling 

effected changes in the institutions. On the other hand, 

24 

 



  

statistical evidence may be presented in the trial court 

through direct testimony and cross-examination on statistical 

information that bears on an issue. Such evidence is examined 

carefully and subjected to the tests of relevancy, 

authenticity, probativeness and credibility. Cf. Henry, 1981 

U. Ill. L.Rev. at 8. 

One difficulty with statistical evidence is that it may 

raise more questions than it answers. This Court reached that 

conclusion in Wilkins v. University of Houston, 654 F.2d 388 
  

(Sth: Cir. Unit aA 1981). In Wilkins this Court held that 

"[mJultiple regression analysis is a relatively sophisticated 

means of determining the effects that any number of different 

factors have on a particular variable." Id. at 402-03. This 

Court noted that the methodology "is subject to misuse and thus 

must be employed with great care." Id. at 403. 

Procedurally, 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." Id. Having done 

this, the Wilkins Court, in an employment discrimination case, 

held "the statistical evidence associated with the multiple 

regression analysis is inconclusive, raising more questions 

23 

 



  

than it answers." Id. 

Even if the statistical evidence is strong there is 

generally a need for additional evidence. In Wade vv. 
  

Mississippi Cooperative Extension Serv., 528 F.24 508 (5th Cir. 
  

1976), the results drawn from the multi-variate regression 

analysis were sutported by additional evidence. Id. at 517. 

In Wade the statistics did not "stand alone” as the sole proof 

of discrimination. 

Much has been written about the relationship of law and 

the social science. "Tf 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 AndDeath Penalty Cases, 1 Law & Pol'y Q. 336, 
  

367 (1979). "Social science can probably make its greatest 

contribution to legal theory by investigating the causal 

forces behind judicial, legislative and administrative 

decisionmaking and by probing the general effects of such 

decisions.” Nagel, Law And The Social Sciences: What Can 
  

Social Science Contribute?, 356 A.B.A.J. 356, 357-58 (1965). 
  

With these observations, this Court accepts social 

science research for what the social scientist should claim for 

it. As in all circumstantial evidence cases, the inferences to 

be drawn from the statistics are for the factfinder, but the 

statistics are accepted to show the circumstances. 

26 

 



  

Racial Discrimination, the Death 
Penalty, 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, capricious and 

irrational components of the prohibition of cruel and unusual 

punishment in the Eighth Amendment and the equal protection 

clause of the Fourteenth Amendment. 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 Fourteenth Amendment. 

Claims of this kind are seldom asserted with a degree of 

particularity, and they generally assert several constitutional 

precepts. 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 (1972), the Supreme 
  

Court struck down the Georgia death penalty system on Eighth 

Amendment grounds, with several of the concurring justices 

holding that the system operated in an arbitrary and capricious 

manner because there was no rational way to distinguish the few 

cases in which death was imposed from the many in which it was 

not. Id. at 313 (White, J., concurring); id. at 309-10 (Stewart, 

27 

 



  

J. concurring). Although race discrimination in the imposition 

of the death penalty was not the basis of the decision, it was 

one of several concerns addressed in both the concurring and 

dissenting opinions. See id. at 249-52 (Douglas, J. 

concurring); id. at 309-10 (Stewart, J. concurring); id. at 

364-65 (Marshall, I., concurring); id. at 389-90 n.l1l2 (Burger, 

c.J., dissenting); id. at 449 (Powell, J., dissenting). 

Four years later, the Supreme Court approved the redrawn 

Georgia statute pursuant to which McCleskey was tried and 

sentenced. Gregg v. Georgia, 428 U.S. 153 (1976). At the same 
  

time the Court approved statutes from Florida and Texas which, 

like Georgia, followed a guided discretion approach, but 

invalidated the mandatory sentencing procedure of North Carolina 

and Louisiana. Proffitt v. Florida, 428 U.S. 242 (1976); Jurek 
  

v. Texas, 428 U.S. 262 (1976); Woodson Vv. North Carolina, 428 
  

  

U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1978). 
  

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 De 

alleged. Sullivan v. Wainwright, 721 F.2d 316, 317 (llth Cir. 
  

1983) (statistical impact studies insufficient to show state 

system "intentionally discriminated against petitioner"), 

petition for stay of execution denied, U.S. yr 38 
  

L.Ed.2d 210 (1983); Adams v. Wainwright, 709 F.2d 1443, 1449 
  

28 

 



  

{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. denied, v.S. '. 719 L.E4A.248 
  

203 (1984); Smith v. Balkcom, 671 F.2d 858, 859 (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 
  

(1982). 

Initially in Spinkellink wv. Wainwright, 578 F.2d 582 
  

{5th Cir. 1978), cert. denied, 440 U.S. 976 (1979), the Court 
  

rejected Eighth and Fourteenth Amendment claims that the Florida 

death penalty was being applied in a discriminatory 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 condemned in Furman -- have been 

conclusively removed." 1d. at 613-14. Spinkellink can not be 
  

read to foreclose automatically all Eighth Amendment challenges 

to capital sentencing conducted under a facially constitutional 

statute. In Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme 
  

Court sustained an Eighth Amendment challenge to a Georgia death 

sentence because the Georgia court's construction of a portion 

29 

 



of that facially valid statute left no principled way to 

distinguish 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 {llth Cir. 1982). Nevertheless, neither Godfrey 

nor Proffitt undermine this Court's prior and subsequent 
  

pronouncements in Spinkellink, 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 nexus between Eighth Amendment claims 

  
and a Fourteenth Amendment equal protection claim. McCleskey 

v. Zant, 580 F.Supp. 338, 347 (N.D. Ga. 1984). Where an Eighth 

Amendment claim centers around generalized showings of disparate 

racial impact in capital sentencing, such a connection is 

inescapable. 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 protection clause of the 

Fourteenth Amendment, 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.  



  

A successful Eighth Amendment challenge would require 

proof that the race factor was operating in the system 

in such a pervasive manner that it could fairly be said that the 

system was irrational, arbitrary and capricious. For the same 

reasons that the Baldus study would be insufficient to 

demonstrate discriminatory intent or unconstitutional 

discrimination in the Fourteenth Amendment context, it would be 

insufficient to show irrationality, arbitrariness and 

capriciousness under any kind of Eighth Amendment analysis. 

The district court stated that were it writing on a clean 

slate, it would characterize McCleskey's claim as a due process 

claim. The court took the position that McCleskey's argument, 

while «couched in terms of T“arbitrary and capricious," 

fundamentally contended that tne Georgia death penalty was 

applied on the basis of a morally impermissible criterion: the 

race of the victim. 

The district court's theory derives some support from the 

Supreme Court's decision in Zant v. Stephens, 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." Id. at 255. From 

this language it is clear that due process would prevent a state 

31 

 



  

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, 

jurors, and judges, has implicitly attached the aggravating 

label to race. 

Even if petitioner had characterized 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 ‘fundamental fairness' 

consists of in a particular situation by first considering any 

relevant precedents and then by assessing the several interests 

that are at stake." Lassiter v. Department of Social Services, 
  

4532 ‘0.5. 18, 24-35 (1981). Due process also requires the 

assessment of the risk that the procedures being used will lead 

to erroneous decisions. Mathews v. Eldridge, 424 U.S. 319, 335 
  

(1976). Where a due process claim requires a court to determine 

whether the race of the victim impermissibly affected the 

capital sentencing process, decisions under the equal protection 

clause, characterized as "central to the Fourteenth Amendment's 

prohibition of discriminatory action by the State," Rose v. 

Mitchell, 443 U.S. 545, 554-55 (1979), are certainly "relevant 
  

precedents" in the assessment of the risk of erroneous 

decisions. Thus, as in the equal protection context, the 

32 

 



  

claimant under a due process theory must present evidence which 

establishes that in the capital sentencing process race "is a 

motivating factor in the decision.” Village of Arlington 
  

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 
  

266 (1977). 

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 natural component of the proof 

that discrimination actually occurred. 

The Supreme Court has clearly held that to prove a 

constitutional claim of racial discrimination in the equal 

protection context, intent, purpose, and motive are necessary 

components. Washington v. Davis, 426 U.S. 229, 238-42 (12979). 
  

A showing of a disproportionate impact alone is not sufficient 

to prove discriminatory intent unless no other reasonable 

inference can be drawn. Arlington Heights, 429 U.S. at 264-66. 
  

This Circuit has consistently applied these principles of law. 

Adams v. Wainwright, 709 F.2d 1443, 1449 (llth Cir. 1983), cert. 
  

denied, 79 L.Ed.2d 203 (1984); Sullivan v. Wainwright, 721 F.2d 
  

33 

 



  

316,317 {11th Cir, 1983). 

We, therefore, hold that proof of a disparate impact 

alone is insufficient to invalidate a capital sentencing 

system, unless that disparate impact is sO great that It 

compels a conclusion that the system is unprincipled, 

irrational, arbitrary and capricious 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 
  

  

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 sentence. The answer lies in whether 

the statistical study is sufficient evidence of the ultimate 

fact which must be shown. 

Tn Smith v. Balkcom, 671 F.2d 858, 859 (3th Cir. Unit BY, 
  

  

cert. denied, 459 U.S. 882 (1982), this Court said: 

In some instances, circumstantial or statistical 

evidence of racially disproportionate impact may 

34 

 



  

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 shows a strong 

inference that there is a disparity based on race. That is 

only the first step, however. The second step focuses on how 

great the disparity is. Once the disparity is proven, 

the question is whether that disparity is sufficient to compel 

a conclusion that it results from discriminatory intent and 

purpose. The key to the problem 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 U.S. 978. (1979), the petitioner 
  

claimed the Florida statute was being applied in a 

discriminatory fashion against defendants murdering whites, as 

opposed to blacks, in violation of the cruel and unusual 

punishment and equal protection components of the Constitution. 

Evidence of this disparity was introduced through expert 

witnesses. The court assumed for sake of argument the accuracy 

of petitioner's statistics but rejected the Eighth Amendment 

argument. The court rejected the equal protection argument 

35 

 



  

because the disparity shown by petitioner's statistics could 

not prove racially discriminatory intent or purpose as required 

by Washington v. Davis, 426 U.S. 229 (1976), and Village of 
  

  

Arlington Heights v. Metropolitan Housing Development Corp., 
  

429 U.S. 252 (1977). 578 F.2d at 614-16. 

In Adams v. Wainwright, 709 F.2d 1443 (llth Cir. 1983), 
  

cert. denied, 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 inference is one of intentional 
discrimination will it alone suffice. 

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 

38 

 



  

strong as to lead inevitably to a finding of motivation and 

intent, absent some other explanation for the disparity. 

In commenting on the proffer of the Baldus 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. [ 78 L.E4. 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 particularized 
with respect to any alleged "intentional" racial 
discrimination. Surely, no contention can be made 
that the entire Georgia judicial system, at all 
levels, operates to discriminate in all cases. 
Arguments to this effect may have been directed to 
the type of statutes addressed in Furman v. 
Georgia, 408 U.S. 238 (1972). As our subsequent 
cases make clear, such arguments cannot be taken 

seriously under statutes approved in Gregg. 

    

  

Stephens v. Kemp, U.S. ¢ 78 L.B4.24 370, 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 particular defendant has been unconstitutionally 

sentenced to death. As to whether the system can survive 

constitutional attack, statistical studies at most are 

probative of how much disparity is present, but it is a legal 

question as to how mucn disparity is required before a federal 

court will accept it as evidence of the constitutional flaws in 

37? 

 



  

the system. 

This point becomes especially critical to a court faced 

with a request for an evidentiary hearing to produce future 

studies which will undoubtedly be made. Needless to say, an 

evidentiary hearing would be necessary to hear any evidence 

that a particular defendant was discriminated against because 

of ais 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 evidentiary hearing as to studies 

- which do nothing more than show an unexplainable disparity. 

Generalized studies would appear to have little hope of 

excluding every possible factor that might make a difference 

between crimes and defendants, exclusive of race. To the 

extent there is a subjective or judgmental component to the 

discretion with which a sentence is invested, not only will no 

two defendants be seen identical by the sentencers, but no two 

sentencers will see a single case precisely the same. As the 

court has recognized, there are "countless racially neutral 

variables™ in the sentencing of capital cases. Smith v. 
  

Balkcom, 671 F.24 at 3859. 

This is not to recede from the general proposition that 

statistical studies may reflect a disparity so great as to 

inevitably lead to a conclusion that the disparity results from 

38 

 



  

intent or motivation. As decided by this opinion, the Baldus 

studies demonstrate 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 statistical 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 the 

independent variables. We hold in this case that even if the 

statistical results are accepted as valid, the evidence fails 

to challenge successfully the constitutionality of the Georgia 

system. Because of this decision, 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 received, analyzed and dealt with the 

39 

 



  

complex statistics. The district court is to be commended 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 (1908), 
  

and has been tested like other kinds of evidence at trial, see 

Spinkellink vv. Wainwrighe, 3783 F.24 382, 612-13 (Sth Cir. 
  

1978), there is a question as to the standard of review of a 

“trial court's finding based on a highly complex statistical 

study. 

Findings of fact are reviewed under the clearly erroneous 

standard which the Supreme Court has defined as: “[a] finding 

is 'clearly erroneous' when although 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 
  

B.S. 364, 395 (1943). 

Whether a disparate impact reflects an intent to 

discriminate is a ultimate fact which must be reviewed under 

the clearly erroneous standard. Pullman-Standard v. Swint, 456 
  

40 

 



  

U.S. 273 (1982). In Pullman, the Supreme Court said that Fed. 

R. Civ. D.:52(a) 

does not make exceptions or purport to exclude 
certain categories of factual findings from the 
obligation of a court of appeals to accept a 
district court's findings unless clearly 
erroneous. It does not divide facts into 
categories; in particular, 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. 

There would seem to be two levels of findings based on 

statistical evidence that must be reviewed: first, the finding 

concerning 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 validity 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 

41 

 



  

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 impermissible, factor 

which accounts for the imposition of the death penalty in many 

cases. He supports this argument with the sophisticated 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 prohibits the consideration of racial 

factors as justification for the penalty, McCleskey asserts 

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 aggravation (mid-range aggravation cases). He argues that 

because his case fell within that range, he has established 

that impermissible racial considerations operated in his case. 

42 

 



  

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 concluded 

that his study showed that systematic and substantial 

disparities existed 1in the penalties imposed upon homicide 

defendants in Georgia based on race of the homicide victim, 

that the disparities existed at a less substantial rate in 

death sentencing based on race of defendants, and that the 

factors of race of the victim and defendant were at work in 

Fulton County. 

A general comment about the limitations on - what the 

Baldus study purports to 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 nis 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 

43 

 



  

role in sentencing structure in Georgia. 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 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 murder-death, murder-life and voluntary manslaughter 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 statistical 

analysis, Baldus examined relationships between the dependent 

variable, death-sentencing 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 1is a 

statisticaliy significant race-of-the-victim effect operating 

statewide. It is more difficult, however, to ascertain the 

44 

 



  

magnitude of the effect demonstrated by the Baldus study. The 

simple, 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 explain the differential, Baldus still concluded that 

there was a significant race-of-the-victim effect. The result 

of Baldus' most conclusive model, on which McCleskey primarily 

relies, showed an effect of .06, signifying that on average a 

white victim crime is 6% more likely to result in the sentence 

than a comparable black victim crime. Baldus also provided 

tables that showed the race-of-the-victim effect to be most 

significant in cases involving intermediate levels of 

aggravation. In these cases, on average, white victim crimes 

were shown to be 20% more likely to result in the death penalty 

than equally aggravated black victim crimes. 

None of the figures mentioned above is a definitive 

quantification of the influence of the victim's race on the 

overall likelihood of the death penalty in a given case. 

Nevertheless, 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 

45 

 



  

victim crimes are likely to result in the penalty. When this 

figure is related to tables that classify cases according 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 factors supporting the death 

sentence. The Baldus study revealed an essentially rational 

system, in which high aggravation cases were more likely to 

result in the death sentence than low aggravation cases. As one 

would expect in a rational system, factors such as torture and 

multiple victims greatly increased the likelihood of receiving 

the penalty. 

There are important dimensions that the statistics cannot 

reveal. Baldus testified that the Georgia death penalty system 

is an extremely complicated process in which no single factor 

or group of factors determines the outcome of a given case. No 

46 

 



  

single petitioner could, on the basis of these statistics 

alone, establish that he received the death sentence because, 

and only because, his victim was white. Even in the mid-range 

of cases, where the race-of-the-victim influence is said to be 

strong, legitimate factors justifying the penalty are, by the 

very definition of the mid-range, present in each case. 

The statistics show there is a race-of-the-victim 

relationship with the imposition of the death sentence 

discernible in enough cases to be statistically significant in 

the system as a whole. The magnitude cannot be called 

determinative in any given case. 

The evidence in the Baldus study seems to support the 

Georgia death penalty system as one operating in a rational 

manner. Although no single factor, or combination of factors, 

will irrefutably lead to the death sentence in every case, the 

system in operation follows the pattern the legislature 

intended, which the Supreme Court found constitutional in 

Gregg, and sorts out cases according to levels of aggravation, 

as gauged by legitimate factors. The fundamental Eighth 

Amendment concern of Furman, as discussed in Gregg, which 

states that "there is no meaningful basis for distinguishing 

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 statute. 428 U.S. at 188. 

47 

 



  

Taking the 6% bottom line revealed in the Baldus figures 

as true, this figure is not sufficient Co overcome the 

presumption that the statute is operating in a constitutional 

manner. In any discretionary system, 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 possibly even 

compelled, by recent Supreme Court opinions in Sullivan v, 
  

Wainwright, Uu.8. ; 78. L.EA.24 210 (1983) (denying 
  

stay of execution to allow evidentiary hearing on Eighth 

Amendment claim supported by statistics); Adams v. Wainwright, 
  

U.S. , 80 L.Ed.2d 809 (1984) (vacating stay); and 

Wainwright v. Ford, 8.8. ¢ 82 L:E4.24 911 (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 

relied 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 912 (citing Sullivan and Adams). 
  

The petitioners in Sullivan, Adams, and Ford all relied on the 
  

study by Gross and Mauro of the Florida death penalty system. 

48 

 



  

The bottom line figure in the Gross and Mauro study indicated a 

race-of-the-victim effect, quantified by a "death odds 

multiplier," 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 

HOLEOn line. It is true that the methodology of the Baldus 

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 Sullivan, 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 neld 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 

49 

 



  

McCleskey relies. 

McCleskey's argument about the heightened influence of 

the race-of-the-victim factor in the mid-range of cases 

requires a somewhat different analysis. McCleskey's case falls 

within the range of cases involving 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 approximately 20% in the mid-range of 

cases. Some analysis of this 20% figure is appropriate. 

The 20% figure in this case is not analogous 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 figure reflects that the variables 

included in the study do not adequately explain the 20% 

disparity and that the statisticians can explain 

it only by assuming the racial effect. More importantly, 

Baldus did not testify that he found statistical 

significance in the 20% disparity figure for mid-range cases, 

50 

 



  

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 rationally 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%. 

Assuming arguendo, however, that the 20% disparity is an 
  

accurate figure, it is apparent that such a disparity 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 operating 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 

definition possible. It is simply not satisfactory to say that 

the racial effect operates in "close cases" and therefore that 

the death penalty will be set aside in "close cases." 

As discussed previously, the statistics 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 factor 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 

51 

 



  

are insufficient to show that McCleskey's sentence was 

determined by the race of his victim, or even that the race of 

his victim contributed to the imposition of the penalty in his 

case. 

McCleskey's ‘petition does not surmount the threshold 

burden of stating a claim on this issue. Aside from the 

statizeios, he presents literally no evidence that might tend 

to support a conclusion that the race of McCleskey's victim in 

any way motivated the jury to impose the death sentence in his 

case. 

Conclusion 
  

The Supreme Court has held that to be constitutional the 

sentencer in death sentence cases must have some measure of 

discretion. Gregg v. Georgia, 428 U.S. 153 (1976); Proffirt v. 
  

  

Florida, 428 U.S. 242 (1978). The mandatory death sentence 

statutes were declared unconstitutional. Woodson vv. North 
  

Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 
  

  

325 (19786). 

The very exercise of discretion means that persons 

exercising discretion may reach different results from exact 

duplicates. 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 constitutional, and at the 

52 

 



  

same time hold a 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 difference. The discretion is narrow, focused 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 otherwise explained, and 

conclude that the different result was based on race alone. 

From a legal perspective, petitioner would argue that since the 

difference is not explained by facts which the social scientist 

thinks satisfactory to explain the differences, 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, profession, 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 factors. There are, in fact, no exact duplicates in 

capital crimes and capital defendants. The type of research 

submitted here tends to show which of the directed factors were 

effective, but is of restricted use in showing what undirected 

53 

 



  

, factors control the exercise of constitutionally required 

discretion. | 

It was recognized when Gregg was decided 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 

responsibility 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. However, one of society's most basic 

tasks is that of protecting the lives of its 

citizens and one of the most basic ways in which 

it achieves the task is through criminal laws 

against murder. 

Gregqa VV. Georgia, 428 U.S. 1533, 226 (L976) {Rnite, J., 
  

concurring). 

The plurality opinion of the Gregg Court noted: 

The petitioner's argument is nothing more than a 

veiled contention that Furman indirectly outlawed 

capital punishment by placing totally unrealistic 

conditions on its use. In order to repair the 

alleged defects pointed to by the petitioner, it 

would be necessary to require that prosecuting 

authorities charge a capital offense whenever 

arguably there had been a capital murder and that 

they refuse 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 

54 

 



  

be permitted. Finaily, acts of executive clemency 

would have to be prohibited. Such a system, of 

course, would be totally alien to our notions of 

criminal justice. 

14. at 199 n.50 (opinion of Stewart, Powell, and Stevens, JJ.). 

Viewed broadly, it would seem that the statistical 

evidence presented hers, assuming its validity, confirms rather 

than condemns 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 disparity based on the 

race of the victim tends to support the state's contention that 

the system is working far differently from the one which Furman 

condemned. In pre-Furman days, there was no rhyme or reason 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 

unconstitutional. 

The district court properly rejected this aspect of 

McCleskey's claim. 

INEFFECTIVE ASSISTANCE OF COUNSEL 

McCleskey contends his trial counsel rendered ineffective 

assistance at both guilt/innocence and penalty phases of his 

trial in violation of the Sixth Amendment. 

35 

 



  

Although a defendant is constitutionally entitled to 

reasonably effective assistance from his attorney, we hold that 

McCleskey has not shown he was prejudiced by the claimed 

defaults in his counsel'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 reasonableness of the attorney's 

per formance. Strickland v. Washington, 3.8. , 80 
  

L.Ed.2d 674 (1984). 

As to the guilt phase of his trial, McCleskey 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 witnesses the victims of the 

Dixie Furniture Store robbery; and (3) interview the State's 

ballistics expert. 

McCleskey demonstrates no prejudice caused by his 

counsel's failure to interview 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. 

56 

  

| 

| 
i 

H 

! } 
i 
| 
N | 

b 

 



  

As to the robbery victims, McCleskey does not contend 

that an in-person interview would have revealed something their 

statements did not. He had an opportunity to cross-examine 

several of the robbery victims and investigating officers at 

McCleskey's preliminary hearing. The reasonableness of the 

attorney's investigation need not be examined because there 

was obviously no prejudice. 

The question is whether it was unreasonable. not to 

subpoena the robbery victims as defense witnesses. McCleskey's 

attorney relied primarily on an alibi defense at trial. To 

establish this defense, the attorney put McCleskey on the 

stand. He also called several witnesses in an attempt 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 witnesses to testify as to which robber did 

the shooting. No prejudice can be shown by failing to subpoena 

witnesses, as a reasonable strategy decision. 

McCleskey's attorney could have reasonably prepared to 

cross-examine the State's ballistics expert by reading the 

expert's report. No in-person interview was necessary. See 

Washington V. Watkins, 653 P.24 1346, 1353 (5th Cir. 1981), 
  

cert. denied, 456 U.S. 949 (1982). The report was 1in the 
  

prosecutor's file which the attorney reviewed and no contention 

57 

 



  

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 introduction of 

prior convictions which had been set aside. 

No character witnesses testified for McCleskey at his 

trial, At the State habeas corpus hearing McCleskey's attorney 

testified he talked with both McCleskey 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 a conflicting story. is 

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 role as fact finder 
to conclude that Counsel 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, implicit in that conclusion is the 

historical finding that the attorney's testimony was credible. 

See Paxton v, Jarvis, 735 7.24 1306, 1308 (llth Cir, 1984); Cox 
  

v. Montgomery, 718 F.28 1036 (llth Cir. 1983). This finding of 
  

58 

 



  

fact is entitled to a presumption of correctness. Based on the 

facts as testified to by the attorney, he conducted a 

reasonable investigation for character witnesses. 

As evidence of an aggravating circumstance 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 McCleskey 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 

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 

community. In support of this proposition, petitioner cites 

two district court opinions from outside circuits. Grigsby v. 
  

Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), hearing en banc 
  

ordered, No. 83-2113 B.A. (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 P.24 129 (4th Cir. 1984). Whatever 

59 

 



  

the merits of those opinions, they are not controlling 

authority for this Court. 

Because both jurors indicated they would not under any 

circumstances consider imposing the death penalty, they were 

properly excluded under Witherspoon v. Illinois, 391 U.S. 510 
  

(1968). See also Boulden v. Holman, 394 U.S. 478 (1969). Their 
  

exclusion did not violate petitioner's Sixth Amendment rights 

to an impartial, community-representative jury. Smith v, 
  

Balkcom, 660 F.24 573, 582-83 (5th Cir. Unit B 1881), cert. 

denied, 459 U.S. 882 (1982); Spinkellink v. Wainwright, 578 
  

F.2d 582, 593-94 (5th Cir. 1978), cert. denied, 440 U.S. 976 
  

(1979). 

THE SANDSTROM ISSUE 
  

The district court rejected McCleskey's claim that the 

trial court's instructions to tne jury on the issue of intent 

deprived him of due process by shifting from the prosecution 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 unconstitutional under Sandstrom v. 
  

Montana, 442 U.S. 510 (1979). 

McCleskey objects to the following portion 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 

60 

 



  

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 panel 

opinions of this Circuit, Franklin v. Francis, 720 F.2d 1206 
  

(llth Cir. 1983), cert. granted, B.S. , 81 L.Ed4.2d 
  

873 (1984), and Tucker v. Francis, 723 F.2d 1504 (llth Cir.), 
  

on pet. for reh'g and reh'g en banc, 723 F.28 1518 {(1lth Cir. 
  

1984). Even though the jury instructions in the two cases 

were identical, Franklin held that the language created a 
  

mandatory rebuttable persumption violative of Sandstrom while 
  

Tucker held that it created no more than a permissive inference 

and did not violate Sandstrom. Noting that the challenged 
  

portion of the instruction used at McCleskey's trial was 

"yirtually 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 pronouncement 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 

constitutionality of potentially burden-shifting instructions 

identical to the one at issue here. Davis v. ‘Zant, 121 r.248 
  

1478 (llth Cir. 1983), on pet for reh'*g and reh'g en banc, 728 
  

61 

 



  

F.2d 492 (llth Cir. 1984); Drake v. Francis, 727 P.24 990 (11th 
  

Cir.), on pet. for reh'g and for reh'q en banc, 727 F.2d 1003 
  

(11th Cir. 1984); Tucker v. Francis, 723 F.24 1504 (1ith Cir.), 
  

on pet. for reh'g and reh'g en banc, 723 F.24 18518 {11th Circ. 
  

1984). The United States Supreme Court has heard oral argument 

in Franklin v. Francis. 53 U.5.L.W. 3373 (0.5. Nov. 20, 1984) 
  

[No. 83-1590]. 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 harmless, the court must be able to 

declare a belief that it was harmless beyond a reasonable 

doubt." Chapman v. California, 386 0.5. 18, 24 (1967). More 
  

recently, the Supreme Court has divided over the issue of 

whether the doctrine of harmless error is ever applicable to 

burden-shifting presumptions violative of Sandstrom. Reasoning 
  

that "[a]n erroneous presumption on a disputed element of the 

crime renders irrelevant the evidence on the issue because the 

jury may have relied upon the presumption rather than upon that 

evidence," a four-justice plurality held that one of the two 

tests for harmless error employed by this Circuit -- whether the 

evidence of guilt is so overwhelming that the erroneous 

instruction could not have contributed to the jury's verdict -- 

62 

  

 



  

is inappropriate. Connecticut v. Johnson, 460 U.S. 73, 85-87 
  

(1983). The fifth vote to affirm was added by Justice 

Stevens, who concurred on jurisdictional grounds. Id. at 88 

(Stevens, J., concurring in the judgment). Four other justices, 

however, criticized the plurality for adopting an "automatic 

reversal™ rule for Sandstrom error. Id. at 98 (Powell, J., 
  

dissenting). The Supreme Court has subsequently reviewed 

another case in which harmless error doctrine was applied to a 

Sandstrom violation. The Court split evenly once again in 
  

affirming without opinion a Sixth Circuit decision holding that 

"the prejudicial effect of a Sandstrom instruction is largely a 
  

function of the defense asserted at trial." Engle v. Koehler, 
  

707 P.24 241, 246 (6th Cir. 1983), aff'd by an equally divided 
  

court, g.8. . 80 L.Ed.24 1 (1984) (per curiam). In 
  

  

Engle, 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 

constitute harmless error. Id. Until the Supreme Court makes a 

controlling decision on the harmless error question, we continue 

to apply the standards propounded in our earlier cases. 

Since Sandstrom was decided in 1979, this Circuit has 
  

analyzed unconstitutional burden-shifting instructions to 

determine whether they constituted harmless error. See, e.4g., 
  

63 

 



Mason v. Balkcom, 669 F.2d 222, 227 (5th Cir. Unit B 1982). In 
  

Lamb v. Jernigan, 683 F.2d 1332 (llth Cir. 1982), cert. denied, 
  

  

103 S.Ct. 1276 (1983), the Court identified two situations in 

which an unconstitutional burden-shifting instruction might be 

harmless. 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; Mason, 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 

evidence of quilt renders a Sandstrom violation harmless. See 
  

Jarrell v. Balkcom, 735 F.2d 1242, 1257 (llth Cir. 1984); 
  

Brooks v. Francis, 716 F.2d 780, 793-94 (llth Cir. 1983), on 
  

pet. for reh'g and for reh'g en banc, 728 F.2d 1358 {11th Cir. 
  

1984); Spencer v. Zant, 715 P.2d 1562, 1578 (iith Cir, 1983), 
  

on pet. for reh'g and for reh'qg en banc, 729 F.2d 1293 {11th 
  

Cir. 1984). 

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 (llth Cir.), 
  

on pet.for reh'g and for reh'g en banc, 127... P24: 1003 (lien 
   



  

Cir. 1984); Collins v. Francis, 728 ®.28 1322, 1330-31 . (llth 
  

Cir. 1984), pet. for reh'g en banc denied, 734 F.2d 1481 (llth 
  

Cir. 1984). There is some indication that even the plurality in 

Connecticut v. Johnson would endorse this type of harmless error 
  

in limited circumstances: 

[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 defendant may in some cases admit 
that the act alleged by the prosecution was 
intentional, thereby sufficiently reducing the 
likelihood that the jury applied the erroneous 
instruction as to permit the appellate court to 
consider the error harmless. 

  

460 U.S. at 87 (citations omitted). 

Our review of the record reveals that the Sandstrom 
  

violation in this case is rendered 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 elements 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 provocation. 

Id. The erroneous instruction on intent, therefore, involved an 

essential element of the criminal offense charged, and the state 

was required to prove the existence of that element beyond a 

65 

 



  

reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The 
  

question therefore becomes whether McCleskey conceded the 

element of intent by presenting a defense that admits that the 

act alleged was intentional. 

of course, a defendant in a criminal trial may rely 

entirely on the presumption of innocence and the State's burden 

of proving every element of the crime beyond a reasonable doubt. 

Connecticut v. Johnson, 460 U.S. at 87 n.lsé6. In such a case, 
  

determining whether a defendant had conceded the issue of intent 

might well be impossible. The record reveals, 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 summarizes his alibi defense: 

Q. Were you at the Dixie Furniture Store that day? 

A, No. 

Q. Did you shoot anyone? 

A, No, IT.didn's, 

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 

credibility of the eyewitness identifications that pinpointed 

66 

 



  

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 arguments were consistent with 

the alibi testimony offered by McCleskey himself, the jury chose 

to disbelieve that testimony and rely instead on the testimony 

of eyewitnesses and the other participants in the robbery. 

We therefore hold that in the course of asserting his 

alibi defense McCleskey effectively conceded the issue of 

intent, thereby rendering the Sandstrom violation harmless 
  

beyond a reasonable doubt. 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 

rendered 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 overwhelming evidence of an intentional killing 

and where the defendant raises a defense of nonparticipation in 

  
  

the crime rather than lack of mens rea, a Sandstrom violation 

on an intent instruction such as the one at issue here is 

67 

 



  

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 shooting, . 

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. 

CONCLUSION 

The judgment of the district court in granting the 

petition for writ of habeas corpus is reversed and the petition 

is hereby denied. 

REVERSED AND RENDERED. 

68 

 



  

TJOFLAT, Circuit Judge, concurring: 

I concur in the court's opinion, though I would approach the 

question of the constitutional application of the death penalty 

in Georgia somewhat differently. I would begin with the 

established proposition that Georgia's capital sentencing model 

is facially constitutional. It contains the safeguards necessary 

to prevent arbitrary and capricious decision making, including 

decisions motivated by the race of the defendant 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 safeguards 

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 jurors. In Georgia this 

means that a representative portion of blacks will be on the 

grand jury. 

The same safeguards come into play 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 victim. 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 particular class of persons, such 

as blacks, from jury service. See, e.9., willis v. Zant, 720 
  

  

  v.28 1212 (1ien Cir, 1983), cert. denied, U.8. ___, 164 8.Ct. 

3548 (1984). 
If the sentencer is the jury, as it is in Georgia (the trial 

judge being bound by the jury's recommendation), it can be 

instructed 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 assignment of error or in the context of 

proportionality review. And, if the court affirms his death 

sentence, he can renew his challenge in a petition for rehearing 

or by way of collateral attack. 

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 

corpus review--should be considered. For they provide still 

another layer of safeguards 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, I 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 constitutionally infirm, the data is 

irrelevant. In summary, petitioner's data, which shows nothing 

more than a disproportionate sentencing results, is not probative 

of 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. 

 



  

VANCE, Circuit Judge, concurring: 

Although I concur in Judge Roney's opinion, I am 

troubled by its assertion that there is "little difference 

in the proof shat might be required to prevail” under either 

. eighth amendment or fourteenth amendment equal protection 

claims of the kind presented herel. 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, caprice or whim. An 

equal protection inquiry is very different. It centers not 

on systemic irrationality, but rather the independent evil 

of intentional, individious discrimination against given 

individuals. 

I am conscious of the dicta in the various Furman 

opinions which note with disapproval the possibility that 

racial discrimination was a factor in the application of the 

death penalty under the Georgia and Texas statutes then in 

effect. To my mind, however, such dicta merely indicates 

the possibility that a system that permits the exercise of 

standardless discretion not only may be capricious, but may 

l I have not addressed the due process analysis employed 

by the district court because the petitioner did not rely 

on it ‘in his brief, 

 



  

give play to discriminatory motives which violate equal 

protection standards as well. Whether a given set of facts 

make out an eighth amendment claim of systemic irrationality 

under Furman is, therefore, a question entirely independent 

of whether those facts establish deliberate discrimination 

violative of the equal protection clause. 

I am able to concur because in neither the case before 

us nor in any of the others presently pending would the 

difference influence the outcome. As Judge Roney points 

out, petitioner's statistics are insufficient 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 explicable 

-- albeit impermissible -- fashion. 

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 reasons stated in Chief Judge 

Godbold's dissent, the facts surrounding Evans' testimony 

did constitute a Giglio violation. I agree with the 

majority, however, that any error was harmless beyond a 

reasonable doubt. 

I also join Judge Anderson's special concurrence on 

the "Constitutional Application of the Georgia Death 

Penalty." 

 



  

ANDERSON, Circuit Judge, concurring specially: 

I join Judge Roney's opinion for the majority, and write 

separately only to emphasize, with respect to the Part entitled 

"Constitutional Application of Georgia's Death Penalty,” 

that death is aitferent in kind from all other criminal sanc- 

tions, Woodson v. North Carolina, 428 U.S. 280, 305 (1976). 
  

Thus, the proof of racial motivation required 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 influenced by race. The Supreme 

Court's Eighth Amendment jurisprudence has established a consti- 

tutional supervision over the conduct of state death penalty 

systems which is more exacting than that with respect to the 

criminal justice system generally. Woodson v. North Carolina, 
  

id. at 305 ("Because of that qualitative difference, there is. a 

corresponding difference in the need for reliability 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 evidentiary showing would be required. Judge 

Roney's opinion demonstrates with clarity why the evidentiary 

showing in this case is insufficient. 

 



  

GODBOLD, Chief Judge, dissenting in part, and concurring in part:* 

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 

nimself during the robbery. Evans also testified that he had 

pending against him a [federal] escape charge, that he had not 

asked the prosecutor to "fix" this charge, and that the 

prosecutor had not promised him anything to testify. 

At the state habeas hearing the following 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. I wasn't promised nothing 

about -- I wasn't promised nothing by the D.A. But the 

Detective told me that he would -- he said he was going to 

do it himself, speak a word for me. That was what the 
Detective told me. 

By Mr. Stroup: 

Qs The Detective told you that he would speak a word for 

you? 

A: Yeah. 

Qs That was Detective Dorsey? 

A: Yeah. 

State Habeas Transcript at 122. 

  

* I dissent on only the Giglio issue. I concur in Judge Roney's 

opinion on all other issues. 
- 

 



The district court granted habeas relief to McCleskey 

under Giglio v. U.S., 405 U.S. 150 31 L.Ed. 24 104 (1971). 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 ——  — ~~ T° 

understandings made by any member of the prosecutorial team, 

which includes police investigators.” 580 F.Supp. at 380. The 

court then made these subsidiary findings: (1) that Evans’ 

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 affect his credibility.” id. at 381; (3) 

that at petitioner's state habeas hearings Evans testified "that 

one of the detectives investigating 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 

McCleskey's trial. 

The en banc court seems to me to err on several grounds. 

It blurs the proper application 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 testimony." Smith v. RKemp, 715 P.248 1459, 1467 

(11th Cir. 1983). Giglio reaches the informal understanding as 

K 
-  



  

well as the formal. The point is, even if the dealings are 

informal, 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 witness in giving 

testimony? The verbal undertaking made in this instance by an 

investigating 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 benefit too marginal. 

Of course, the possible benefit to a potential witness can be 

so minimal that a court could find as a matter of law no Giglio 

violation occurred. A trivial offer is not enough. The subject 

matter of the offer to Evans was substantial, or at least a jury 

was entitled to consider it so. After McCleskey was tried and 

convicted, the federal charge was dropped. 

Third, the court concludes there was no reasonable 

likelihood that Evans' testimony affected the judgment of the 

jury. Co-defendant Wright was the only eyewitness. He was an 

accomplice, thus his testimony, unless corroborated, was 

insufficient to establish that McCleskey was the triggerman. 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 Wright, but Wright's 

testimony on this subject could not be used to corroborate 

wright's otherwise insufficient accomplice testimony. Testimony 

of an accomplice cannot be corroborated by the accomplice's own 

testimony. The other “confession® was made to Evans and Wo 

testified to by Evans. Thus Evans is not a minor or incidental 

witness. Evans' testimony, describing what McCleskey "confessed" 

to him, is the corroboration for the testimony of the only 

eyewitness, Wright. And that eyewitness gave the only direct 

evidence that MeCleskey 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: 

Warren McCleskey has presented convincing evidence to 

substantiate his claim that Georgia has administered its death 

penalty in a way that discriminates on the basis of race. The 

gallus study, characterized as "far and away the most complete 

and thorough analysis of sentencing” ever carried out, demon- 

strates that in Georgia 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 evidence "confirms rather 

than condemns the system” and that it fails to support a consti- 

tutional challenge. I disagree. In my opinion, this disturbing 

evidence can and does support a constitutional claim under the 

Eighth Amendment. In holding otherwise, the majority commits two 

critical errors: it requires McCleskey to prove that the State 

intended to discriminate against him personally and it under- 

estimates what his evidence actually did prove. I will address 

each of these concerns before commenting briefly on the validity 

of the Baldus 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 administers the death 

penalty in a way that discriminates on the basis of race. The 

district court opinion treated this argument as one arising under 

the Fourteenth Amendment? and explicitly rejected the peti-= 

tioner's claim that he could raise the argument under the Eighth 

Amendment, as well. The majority reviews each of these possi- 

bilities and concludes that there is little difference 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 compel the conclusion 

that purposeful discrimination permeates the system. These 

‘positions reflect a misunderstanding of the nature of an Eighth 

Amendment claim in the death penalty context: the Eighth 

Amendment prohibits the racially discriminatory application of 

the death penalty and McCleskey does not have to prove intent to 

discriminate in-order to show that the death penalty is being 

applied arbitrarily and capriciously. 

A. The Viability of an Eighth Amendment 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 application of that statute. 

The district court most certainly erred on this issue. Applying 

the death penalty in a racially discriminatory manner violates 

the Eighth Amendment. Several members of the majority in Furman 

v. Georgia, 408 U.S. 238, 245-57, 310, 3584-63 (1972) (concurring 
  

 



  

opinions of Douglas, Stewart, Marshall, JJ.), relied in part on 

the disproportionate impact of the death penalty on racial 

minorities in concluding that the death penalty as then. adminis- 

tered 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 

process 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, 0.8. . 202.3. Ct, 2733 {1933) (listing race of 
  

defendant as a factor "constitutionally impermissible or totally 

irrelevant to the sentencing process”). There is no legitimate 

basis in reason for relying 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 violation of the Eighth Amendment. 

See Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., 
  

concurring) ("the high service rendered by the ‘cruel and 

unusual' punishment 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 Vv. Georgia, 428 U.S. 
  

153, 195 n.46 (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 

operation of a state's entire sentencing structure in determining 

whether it inflicted sentences in violation of the Eighth 

Amendment. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 112 
  

(1982) (capital punishment must be imposed "fairly, and with 

reasonable consistency, or not at all"); Godfrey v. Georgia, 446 
  

U.S. 420 (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 capri- 

cious infliction of the death penalty."). 

Without this systemic perspective, review of sentencing 

would be extremely limited, for the very idea of arbitrary and 

capricious sentencing takes on its fullest meaning in a compara- 

tive context. A non-arbitrary sentencing structure must provide 

some meaningful way of distinguishing between those who receive 

the death sentence and those who do not. Godfrey v. Georgia, 446 
  

U.S. 4290, 433 (1980); Furman Vv. Georgia, 408 U.S. 238, 3313 :41972) 
  

(White, J., concurring). Appellate proportionality review is not 

needed in every case but consistency is still indispensable to a 

constitutional sentencing system. = The import of any single 

sentencing decision depends less on the intent of the decision- 

maker than on the outcome in comparable cases. Effects 

evidence 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, V.S. 103 8. CL, 27133, 274) (1983); 
  

Lockett v. Ohio, 438 U.S. 586, 605 (1978); Woodson Vv. North 
  

  

carolina, 428 U.S. 280, 305 (1976) (plurality opinion). Monitor- 
  

ing patterns of sentences offers an especially effective way to 

detect breaches of that duty. Indeed, because the death penalty 

retains the need for discretion to make individualized judgments 

while at the same time heightening the need for fairness and 

consistency, Eddings Vv. oklahoma, supra, at 110-12, patterns of 
  

decisions may often be the only acceptable basis of review. 

Discretion hinders inquiry into intent: if unfairness and 

inconsistency are to be detected even when they are not over- 

whelming or obvious, effects evidence must be relied upon. 

Insistence on systemwide objective standards to guide 

sentencing reliably prevents aberrant decisions without having to 

probe the intentions of juries or other decisionmakers. Gregg 

v. Georgia, supra, at 198; Woodson v. North Carolina, supra, at 
  

  

303 (objective standards necessary to "make rationally reviewable 

the process for imposing the death penalty"). The need for the 

State to constrain the discretion of juries in the death penalty 

area is unusual by comparison to other areas of the law. It dem- 

onstrates the need to rely on systemic controls as a way to 

reconcile discretion and consistency; the same combined objec- 

tives argue for the use of effects evidence rather than waiting 

for evidence of improper motives in specific cases. 

 



  

Objective control and review of sentencing 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 motives.? In Westbrook v. 
  

7zant, 704 F.2d 1487, 1504 (11th cir. 1983), this Court held that, 

  

even though a judge might not properly instruct a sentencing jury 

regarding the proper definition of aggravating circumstances, the 

#heentrelled discretion of an uninstructed jury® can be cured by 

review in the Georgia Supreme Court. The state court must find 

that the record shows the presence of statutory aggravating 

factors that a jury could have relied upon. If the factors are 

present in the record it does not matter that the jury may have 

misunderstood the role of aggravating circumstances. If the 

State can unintentionally succeed in preventing arbitrary and 

capricious 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. Georgia, 408 
  

U.S. 233, 253 {1972) (Douglas, J.., concurring) ("We cannot say 

that these defendants were sentenced to death because they were 

black. Yet our task is not restricted to an effort to divine 

what motives impelled these death penalties."). The majority's 

 



  

holding on this issue conflicts with every other constitutional 

limit on the death penalty. After today, in this Circuit 

arbitrariness based on race will be more difficult to eradicate 

than any other sort of arbitrariness in the sentencing system. 

II. PROVING DISCRIMINATORY EFFECT AND INTENT WITH THE BALDUS 

STUDY 

The staistizel 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 victims.® It then 

employed several statistical techniques, including regression 

analysis, to isolate the amount of that disparity attributable to 

both racial and non-racial factors. 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 number 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 

undoubtedly shows a disparate impact. Regression 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 offers a type of effects 

evidence that approaches evidence of intent, no matter what level 

of disparity is shown. For example, 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 common method of proving 

discriminatory effect in employment discrimination sults. In 

fact, the Baldus Study shows effects at least as dramatic and 

convincing as those in statistical studies offered in the past. 

Cf. Segar Vv. smith, 738 F.2d 1249 (D.C. Cir. 1984); Wade v. 
  

Mississippi Cooperative Extension Service, 528 P.24 3508 (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 constitutional challenge, under any reasonable defini- 

tion of intent the Bzldus Study provides sufficient proof. The 

majority ignores the fact that McCleskey has shown discriminatory 

intent at work in the sentencing system even though he has not 

pointed to any specific act or actor responsible for discriminat- 

9 
ing against him in particular. 

 



  

The law recognizes that even though intentional discrimi- 

nation will be difficult to detect in some situations, its 

workings are still pernicious and real. Rose V. Mitchell, 443 
  

U.S. 545, 559 (1978). Under some circumstances, therefore, proof 

of discriminatory effect will be an important first step in 

proving intent, Crawford v. Board of Education, 458 U.S. 527 
  

(1982), and may be the best available proof of intent. 

Washington v. Davis, 426 U.S. 229, 241-42 (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 (1979). Fan 
  

For instance, proof of intentional discriminaticn-=an the 

selection of jurors has traditionally depended on showing. racial 

effects. See Castaneda v. Partida, 430 U.S. 482 (1877)3 = 
  

Turner v. Fouche, 396 U.S. 346 (1970); Gibson v. Zant, 70. F.2d 
  

  

1543 (llth Cir. 1983). This is because the discretion ali.wed to 

jury commissioners, although legitimate, could easily be --3ed to 

mask conscious or unconscious racial discrimination. The ‘upreme 

Court has recognized that the presence of this sort of di: .retion 

calls for indirect methods of proof. Washington v. Davis, 426 
  

U.S. 229, 241-42 (1976); Arlington Heights v. Metropolit. 
  

Housing Corp., 429 U.S. 252, 266 n.l3 (1977). 
  

This Court has confronted the same problem in an - alogous 

setting. In Searcy Vv. Williams, 656 F.2d 1003, 1008-09 {seh Cir. 
  

1981), aff'd sub nom. Hightower v. Searcy, 455 U.S. 984 (1982), 
  

the court overturned a facially valid procedure for selecting 

school board members because the selections fell into an )ver- 

whelming pattern of racial imbalance. The decision rest~d in 

 



  

part on the discretion inherent in the selection process: "The 

challenged application of the statute often involves discretion 

or subjective criteria utilized at a crucial point in the 

decision-making 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 discretion. Defendants cannot realistic- 

ally hope to find direct evidence of discriminatory intent. This 

  is precisely the situation envisioned in Arlington Heights, where 

the Court pointed out that "[s]ometimes a clear satsetn, 

unexplainable on grounds other than race, emerges from the effect 

of the state action even when the governing legislation appears 

neutral on its face. . . . The evidentiary inquiry is then 

relatively easy." 429 U.S. at 266. 

As a result, evidence of discriminatory effects presented 

in the Baldus Study, like evidence of racial disparities in the 

composition of jury poolsl® and in other contexts, tl excludes 

every reasonable inference other than discriminatory intent at 

work in the system. This Circuit has acknowledged on several 

occasions that evidence of this sort could support a constitu- 

tional challenge. Adams Vv. Wainwright, 702 F.2d 1443, 1449 {llth 
  

cir. 1983); Smith v. Balkcom, 660 F.2d 873 (5th Cir. Unit 3B 
  

1981), modified in part, 671 F.2d 858, cert. denied, 459 U.S. 882 
  

  

(1982); Spinkellink, supra, at 614. 
  

10 

 



  

A petitioner need not exclude all inferences 

other than discriminatory intent in his or her particular case.l? 

vet the majority improperly stresses this particularity require- 

ment and interprets it so as to close a door left open by the 

13 1¢ would be nearly impossible to prove through 
supreme Court. 

evidence of a system's usual effects that intent must have been a 

factor in any one case; effects evidence, in this context, 

necessarily deals with many cases at once. Every jury discrimi- 

nation charge would be stillborn if the defendant had to prove by 

direct evidence that the jury commissioners 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 under 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, neverthe- 

less concedes that despite the particularity requirement, 

evidence of the system's effects could be strong enough to 

demonstrate intent and purpose. 14 Its subsequent 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 power fully influences the sentencing 

decision in Georgia. Yet this fact alone does not reveal a 

"rational™ system at work (p. 46). The statistics not only 

11 

 



  

show that the number of aggravating factors is a significant 

influence; they also point to the race of the victim as a factor 

of considerable influence. Where racial discrimination contrib- 

utes to an official decision, the decision is unconstitutional 

even though discrimination was not the primary motive. Personnel 
  

Administrator v. Feeney, 442 U.S. 256, 279 (1979). 
  

Neither can the racial impact be explained 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 discre- 

tion to consider race: the jury may consider any proper aggra-= 

vating factors, but it may not consider the race of the victim as 

an aggravating factor. Zant v. Stephens, v.S. +103 8S. 
  

ct. 2741 (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, showing that the pattern of sentences can only be 

1s 
explained by assuming a significant racial influence, overcomes 

whatever presumption exists. 

The majority's effort to discount the importance 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 (20 percent) than in all cases combined (6 

percent). The majority states that racial impact in a subset of 

2 

 



  

cases cannot provide the basis for a systemwide challenge. 

However, there is absolutely no justification 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. Connecticut v. Teal, 457 U.S. 440 (1984) (written test 
  

discriminates against some employees) ; Lewis v. City of New 
  

Orleans, 415 U.S. 130 (1974) (statute infringing on First Amend- 

ment interests in some cases). A system can be applied arbitrar- 

ily and capriciously even if it resolves the obvious cases in a 

rational manner. Admittedly, the lack of a precise definition of 

medium 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, 1® the evidence of racial impact must be taken all 

the more seriously. 

Finally, the majority places undue reliance on several 

recent Supreme Court cases. It argues that Ford v. Strickland, 
  

  

  

eS. , 52 U.8.L.W. 3873 (1984), Adams v. Wainwright, 

u.8. , 30 L.E4.24 309 (1984), and Sullivan v. Wainwright, 

v.85. , 78 L.Ed. 2d 210 (1983), support its conclusion that 
S——— 

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 guidance at all regarding the legal standards 

applicable to these studies,’ it is clear that the Court 

considered the validity of the studies rather than their suffi- 

ciency. In Sullivan, the Supreme Court refused to stay the 
  

execution simply because it agreed with the decision of this 

13 

 



  

Court, a decision based on the validity of the study alone.l8 

sullivan v. Wainwright, 721 F.2d 316 {11th Cir. 1983) (citing 
  

prior cases rejecting statistical evidence because it did not 

sccount for non-racial explanations of the effects). As the 

majority mentions, the methodology of the Baldus Study easily 

surpasses that of the earlier studies involved in those cases. 

Thus, the Baldus Study offers a convincing explanation of 

the disproportionate effects 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 

evidence of intent is practically impossible to obtain, : 4 

strains the imagination to believe that the significant influence 

on sentencing left unexplained by 230 alternative factors is 

random rather than racial, especially in a state with an estab- 

lished history of racial discrimination. Turner Vv. Fouche, 
  

supra; Chapman v. King, 154 F.2d 460 (5th Cir.), cert. denied, 
  

  

327 U.S. 800 (1945). The petitioner has certainly presented 

evidence of intentional racial discrimination at work in the 

Georgia system. Georgia has within the meaning of the Eighth 

Amendment applied its statute arbitrarily and capriciously. 

III. THE VALIDITY OF THE BALDUS STUDY 

The majority does not purport to reach the issue of 

whether the Baldus Study reliably proves what it claims to prove. 

However, the majority does state that the district court's 

findings regarding the validity of the study might foreclose 

habeas relief on this issue. Moreover, the majority opinion in 

14 

 



  

several instances questions the validity of the study while 

claiming to be interested 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 misconception 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 simply point to flaws in a statistical analysis and conclude 

that it is completely unreliable 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 proposi- 

tion that it was meant to support. Eastland v. Tennessee Valley 
  

Authority, 704 F.2d 613 (llth Cir. 1983), cert. denied, 104 S.Ct. 
  

  

1415 (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 description. For 

instance, the "mismatches" in data entered once for cases in the 

Procedural 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 too much 

discretion. But most of the alleged "mismatches" resulted from 

intentional improvements in the coding techniques and the 

remaining errorsl? yere not large enough to affect the results. 

3 

 



  

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 29; penalty trial 

information was unavailable in the same percentages of cases.?2l 

The relatively small amount of missing data, combined with the 

large number 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 per fec- 

tion in order for courts to treat them as competent evidence. 

Trout v. Lehman, 702 F.2d 1094, 1101-02 4D.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 statistical 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 contract it or leave it unchanged. The 

multicollinearity problem is a problem of notable proportions 

that nonetheless did not increase the size of the race-of-the- 

victim factor.22 Ideally the independent variables in a regres- 

sion analysis should not be related to one another. If one 

independent variable merely serves as a proxy for another, the 

model suffers from "multicollinearity." That condition could 

either reduce the statistical significance of the variables or 

distort their relationships to one another. Of course, to the 

extent that multicollinearity reduces statistical significance it 

16 

 



  

suggests that the racial influence would be even more certain if 

the multicollinearity had not artificially depressed the vari- 

| able's statistical significance. As for the distortions in the 

celstionehips between the variables, sxoeris for the petitioner 

explained that multicollinearity tends to dampen the racial 

: effect rather than enhance it.23 

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 misunderstand 

the nature of this study or of regression analysis generally. In 

several related criticisms, it found that any of the models 

accounting for less than 230 independent variables were com- 

pletely 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, 371), and that the models were not sufficiently 

predictive to be relied upon in light of their low R2 value (580 

FP. Supp. at 3161) . 24 The majority implicitly questions the 

validity of the Baldus Study on several occasions when it adopts 

the first two of these criticisms.2® a proper understanding of 

statistical 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 

17 

 



  

better able it was to estimate the proper influence of non-racial 

factors. But in statistical models, bigger is not always better. 

After a certain point, additional independent variables become 

correlated with variables already being considered and distort or 

suppress their influence. 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 models. 

The other two criticisms mentioned earlier spring from a 

single source -- the misinterpretation of the R2 measurement . 28   The failure of the models to capture every nuance of every case 

was an inevitable but harmless failure. Regrassion analysis | 

accounts for this limitation with an R2 measurement. As a | 

result, it does not matter that a study fails to consider every 

nuance of every case because random factors (factors that 

influence the outcome in a sporadic and unsystematic way) do not 

impugn the reliability of the systemwide factors already identi- 

fied, including race of the victim. Failure to consider extra | 

factors becomes a problem only where they operate throughout the 

system, that is, where rR? is inappropriately low. 

The district court did find that the R? of the 230-vari- 

able study, which was nearly .48, was too low.2’ But an RZ of 

that size is not inappropriately low in every context.28 The RZ 

measures random factors unique to each case: in areas where such 

factors are especially likely to occur, one would expect a low 

R2, As the experts, the district court and the majority have 

pointed out, no two death penalty cases can be said to be exactly 

18 

 



  

alike, and it is especially unlikely for a statistical Shuts Lid 

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 R2 of all the Baldus Study models too 

low. 2? 

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 erroneous. United States v. Gypsum CoO., 
  

333 U.S. 364, 395 (1948). This statistical analysis, while im- 

perfect, is sufficiently complete and reliable to serve as 

competent evidence to guide the court. Accordingly, I would 

reverse the judgment of the district court 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 remaining tésued itn 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 harmless. 

Xd 

 



  

It is by no means certain that an error of this sort can 

  be harmless. See Connecticut v. Johnson, U.S. , 74 L.Ed. 

24 823 (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 evidence that 

disputes the prosecution's case on that point. The jury could 

find that the prosecution had failed to dispel all reasonable 

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 

reasonable. juror as to the existence of criminal intent. See 

Lamb v. Jernigan, §33 F.28 1332, 1342-43 {1i1zh Cir. 1982) ("no 

  

reasonable juror could have determined ... that appellant acted 

out of provocation or self-defense,” therefore error was harm- 

less). 

The majority states that the raising of an alibi defense 

Joes not automatically render a sandstrom violation harmless. It 
  

concludes, however, that the raising of a nonparticipation 

defense coupled with "overwhelming evidence of an intentional 

killing" will lead to a finding of harmless error. The 

majority's position is indistinguishable from a finding of 

30 Since a 
harmless error based solely on overwhelming evidence. 

jefendant normally may not relieve the jury of its 

responsibility to make factual 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 

20 

 



  

no possible 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 majority 

that no juror, based on any reasonable interpretation of the 

facts, could have had a reasonable doubt regarding intent. 

Several factors in this case bear on the issue of intent. 

The srooting did not occur at point-blank range. Furthermore, 

the officer was moving at the time of the shooting. On the basis 

of these facts and other circumstances of the shooting, a juror 

could have had a reasonable doubt as to whether the person firing 

the weapon intended to kill. While the majority dismisses this 

possibility as "mere speculation,” the law requires an appellate 

court to speculate about what a reasonable juror could have 

concluded. Sandstrom Vv. Montana, 442 U.S. 510 (1979); United 
  

States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en 

  

banc), aff'd on other grounds, 103 S.Ct. 2398 (1983). Therefore, 
  

the judgment of the district court should be reversed on this 

ground, as well. 

21 

 



  

lrhis was the description given at trial by Dr. Richard 

Berk, member of a panel of the National Academy of Sciences 

charged with reviewing all previous research on criminal sentenc- 

ing issues in order to set standards for the conduct of such 

research. 

2phe district court felt bound by precedent to analyze the 

claim under the equal protection 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. 

3rhe Supreme Court in Pulley V. Harris, U.S. _ 70 

L.E4d.2d8 29 (1984), emphasized the importance of factors other 

than appellate proportionality review that would control jury 

discretion and assure that sentences would not fall into an 

arbitrary pattern. The decision in Pulley deemphasizes the 

importance of evidence of arbitrariness in individual 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 dispro- 

portionality in a single sentence. 

dy ookett v. Ohie, 438 0.5, 586 (1973), and other cases 

demonstrate that the actual deliberations of the sentencer are 

relevant under the Eighth Amendment, for mitigating factors must 

have their proper place in all deliberations. But the suffi- 

ciency of intent in proving an Eighth Amendment violation does 

not imply the necessity of intent for all such claims. 

S5ehe only Fifth or Eleventh circuit cases touching on the 

issue of discriminatory intent under the Eighth Amendment appear 

to be inconsistent with the Supreme Court's approach and there- 

fore wrongly decided. The court in Smith v. Balkcom, 660 F.2d 

573, 584 (5th Cir, Unit B 1981), modified, 671 F.2d 858 (1982), 

stated that Eighth Amendment challenges based on race racuire a 

showing of intent, but the court reached this conclusion because 

it wrongly believed that Spinkellink v. Wainwright, 578 F.2d 582 

(5th Cir. 1978), compelled such a result. The Spinkellink court 

never reached the question 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 3. The 

smith court cites to a portion of the Spinkellink opinion dealing 

with equal protection 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 habeas 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, TF. 24 3168:(3ith Cir. 

1983); Adams v. Wainwright, 709 P.238 1443 {llth Cir. 1983). Of 

  

  

  

  

22 

 



  

course, to the extent these cases attempt to foreclose Eighth 

Amendment challenges of this sort or require proof of parti- 

cularized intent to discriminate, they are inconsistent with the 

Supreme Court's interpretation of the Eighth Amendment. CE£. 

Gates v. Collier, 501 F.2d 1291, 1300-01 (5th Cir. 1974) (pro- 

hibition against cruel and unusual punishment "is not limited to 

specific acts directed at selected individuals"). 

6among 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. 

Tin one of the largest of these models, the one focused 

on by the district court and the majority, the statisticians used 

230 different independent variables (possible influences on the 

pattern of sentencing), including several different aggravating 

and many possible mitigating factors. 

8see part I, supra. Of course, proof of any significant 

racial effects is enough under the Eighth Amendment, for a 

requirement of proving large or pervasive effects is tantamount 

to proof of intent. 

9The same factors leading to the conclusion 

that an Eighth Amendment claim does not require proof of intent 

militate even more strongly against using too restrictive an 

understanding of intent. 

107he majority distinguishes the jury discrimination 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 considered, then the court should employ the actual (and 

overwhelming) eleven-to-one differential between white victim 

cases and black victim cases. The percentage figures presented 

by the Baldus Study are really more reliable than "actual" 

disparities because they control for possible non-racial factors. 

llypited States v. Texas Educational Agency, 579 F.2d 910 

(sth cir. 1978), cert. denied, 443 U.S. 915 (1979), involving a 

segregated school system, provides another example of effects 

evidence as applied to an entire decisionmaking system. 

  

127he particularity requirement has appeared sporadically 

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 Smith v. Balkcom, supra. . 

137he dissenting opinion of Justice Powell in Stephens Vv. 

Renp, B.S. "4 78 ,.Ed.2d 370, 372 (1984), does not under- 

mine the clear import of cases such as the jury discrimination 

cases. For one thing, a dissent from a summary order does not 

23 

 



  

have the precedential weight of a fully considered opinion of the 

Court. For another, the Stephens dissent considered the Baldus 

study as an equal protection argument only and did not address 

what might be necessary to prove an Eighth Amendment violation. 

  

l4ynile I agree with Judge Anderson's observation that 

"the proof of racial motivation required in a death case...would 

be less strict than that required in civil cases or in the 

criminal justice system generally,” I find it inconsistent with 

his acceptance of the majority outcome. The “exacting” 

constitutional supervision over the death penalty established by 

the Supreme Court compels the conclusion that discriminatory 

effects can support an Eighth Amendment challenge. Furthermore, 

the majority's evaluation of the evidence in this case is, if 

anything, more strict than in other contexts. See note 10, 

supra. 

15phe racial influence operates in the average case and is 

therefore probably at work in any single case. The majority 

misconstrues the nature of regression analysis when it says that 

the coefficient of the race-of-the-victim factor represents the 

percentage of cases in which race could have been a factor (p. 

43). That coefficient represents the influence of race across 

all the cases. 

16phe majority apparently ignores its commitment to accept 

the validity of the Baldus Study when it questions the definition 

of "medium aggravation cases” used by Dr. Baldus. 

7rhe opinion in Ford mentioned this issue in a single 

sentence; the order in Adams was not accompanied by any written 

opinion at all. None of the three treated this argument as a 

possible Eighth Amendment claim. Finally, the "death odds 

multiplier” is not the most pronounced statistic in the Baldus 

study: a ruling of insufficiency based on that one indicator 

would not be controlling here. 

181ndeed, the Court indicated that it would have reached a 

different conclusion if the district court and this court had not 

been given the opportunity to analyze the statistics adequately. 

74 L.Ed.248 at 213, Nel. 

19rhe 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 model. 

20py. 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 method was a reasonable 

way of estimating the number of victims of each race. It further 

reduced the significance of this missing data. 

24 

 



  

2lrhe district court, in assessing the weight to be 

accorded this omission, assumed that Dr. Baldus was completely 

unsuccessful in predicting how many of the cases led to penalty 

trials. Since the prediction was based on discernible trends in 

the rest of the cases, the district court was clearly erroneous 

to give no weight to the prediction. 

22phe treatment of the coding conventions provides another 

example. The district court criticized Dr. Baldus for treating 

"yg" codes (indicating uncertainty as to whether a factor was 

present in a case) as being beyond the knowledge of the jury and 

prosecutor ("absent") rather than assuming that the decision- 

makers 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 decision- 

makers did not know of its presence, either. Dr. Berk testified 

that the National Academy of Sciences had considered this same 

issue and had recommended 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 suggestion, 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 treating them as present. Each of the tests showed 

no significant reduction in the racial variable. The district 

court rejected this demonstration because it was not carried out 

using the largest available model. See infra p. 18. 
  

23phe district court rejected this expert testimony, not 

because of any rebuttal testimony, but because it allegedly 

conflicted with the petitioner's other theory that multicol- 

linearity affects statistical significance. 580 F. Supp. at 364. 

The two theories are not inconsistent, for neither Dr. Baldus 

nor Dr. Woodworth denied that multicollinearity might have 

multiple effects. The two theories each analyze one possible 

effect. Therefore, the district court rejected this testimony on 

improper grounds. 

247he RZ measurement represents the influence of random 

factors unique to each case that could not be captured by 

addition of another independent variable. As RZ approaches a 

value of 1.0, one can be more sure that the independent variables 

already identified are accurate and that no significant influ- 

ences are masquerading as random influences. 

25300, e.g., DP. 46, 53. 

26gee footnote 24. 

271+ 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 inaccurate statement, for an R“ actually 

represents the percentage of the original 1l-to-l differential 

25 

 



  

explgined by all the independent variables combined. A model with 

an R% of less than .5 would not necessarily fail to predict the 

outcome in half the cases because the model improves upon pure 

chance as a way of correctly predicting an outcome. For 

dichotomous outcomes (i.e. the death penalty is imposed or it is 

not), random predictions could succeed half the time. 

28yi1kins v. University of Houston, 654 F.2d 388, 405 (5th 

cir. 1981), is not to the contrary. That court stated only that 

it could not know whether an R of .52 or .53 percent would be 

inappropriately low in that context since the parties had not 

made any argument on the issue. 

29pyrthermore, an expert for the petitioner offered the 

unchallenged opinion that the R measurements in studies of 

dichojomous outcomes are understated by as much as 50%, placing 

the R%4 values of the Baldus study models somewhere between .7 and 

«SD. 

301ndeed, 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 evidence to the contrary improperly infringes on the 

jury's duty to consider all relevant evidence. 

26 

 



  

HATCHETT, Circuit Judge, dissenting in part, and concurring in 

part: 

In this case, the Georgia system of imposing the death 

penalty is shown to be unconstitutional. Although the Georgia death 

penalty statutory scheme was held constitutional "on its face" in 

Gregg v. Georgia, 428 U.S. 153 (1976), application of the scheme 
  

produces death sentences explainable only on the basis of the race 

of the defendant and the race of the victim. 

I write to state clearly and simply, without the jargon of 

the statisticians, the results 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 defendant 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 throughout the 

total range of death-sentenced black defendants in Georgia. While 

1Although I concur with the majority opinion on the 

ineffective assistance of counsel and death-oriented jury 

issues, I write separately to express my thoughts on the 

Baldus Study. 

I also join Chief Judge Godbold's dissent, as to the Giglio 

issue, and Judge Johnson's dissent. 

 



  

the 6 percent is troublesome, it is the disparity in the mid-range 

on which I focus. When cases are considered which fall in the 

mid-range, between less serious and very serious 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 decision on the proper sentence 

is most difficult 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 better results, consistent with 

techniques approved by the National Academy of Sciences, 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 circumstances surrounding each case which he 

thought had some impact on a death sentence determination. Addi- 

tionally, he focused on 230 of these factors which he thought most 

reflected the relevant considerations in a death penalty decision. 

Through this 230-factor model, the study proved that black defen- 

dants indicted and convicted for murder of a white victim begin the 

penalty stage of trial with a significantly greater probability of 

receiving the death penalty, solely because the victim is white. 

 



  

Baldus also observed thirty-nine factors, including 

information on aggravating circumstances, which match the 

circumstances in this case. This focused study of the 

aggravating circumstances in the mid-range of severity indicated 

that "white victim crimes were shown to be 20 percent more likely 

to result in a death penalty sentence than equally aggravated 

black victim crimes.® Majority at ___ . 

We must not lose sight of the fact that the 39-factor 

model considers information relevant to the impact of the 

decisions being made by law enforcement officers, prosecutors, 

judges, and juries in the decision to impose the death penalty. 

The majority suggests that if such a disparity resulted from an 

identifiable actor or agency in the prosecution and sentanaing 

process, the present 20 percent racial disparity could be great 

enough to declare the Georgia 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 precision, 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 demonstrates 

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 

significant 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. Georgia, 446 U.S. 
  

420, 428 (1980). A statute that intentionally or 

unintentionally allows for such racial effects is 

unconstitutional under the eighth amendment. Because the 

majority holds otherwise, I dissent. ? 

2Nothing in the majority opinion regarding the validity, impact, 

or constitutional significance of studies on discrimination in 

application of the Florida death penalty scheme should be 

construed to imply that the United States Supreme Court has 

squarely passed on the Florida studies. Neither the Supreme 

Court nor the Eleventh Circuit has passed on the Florida studies, 

on a fully developed record (as in this case), under fourteenth 

and eighth amendment challenges. 

 



  

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

We are challenged to determine how much racial 

discrimination, if any, is tolerable in the imposition of 

: the death penalty. Although I also join in Judge Johnson's 

dissent, this dissent is directed to the majority's 

erroneous conclusion that the evidence in this case does not 

establish a prima facie Fourteenth Amendment violation. 

The Study 
  

The Baldus study, which covers the period 1974 to 

1979, is a detailed study of over 2,400 homicide cases. 

From these homicides, 128 persons received the death 

penalty. Two types of racial disparity are established--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 system the 

1ife 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 maker 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 

*Although I concur with the majority opinion on the 

ineffective assistance of counsel and death oriented jury 
issues, I write separately to express my thoughts on the 

Baldus Study. I also join Chief Judge Godbold's dissent and 

Judge Johnson's dissent. 

 



  

a possible punishment. At the other end of the spectrum are 

the tremendously aggravated murder cases where the defendant 

will very probably receive the death penalty, regardless of 

his race or the race of the victim. In between is the 

mid-range of cases where there is an approximately 20% 

racial disparity. 

The Baldus study was designed to determine whether 

like situated cases are treated similarly. As a starting 

point, an unanalyzed arithmetic comparison of all of the 

cases reflected the following: 

Death Sentencing Rates by Defendant/ 
Victim Racial Combination 
  

  

A B Cc D 

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

White Victim White Victim Black Victim Black Victim 

22 : .08 Ol 03 

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

+11 013 

(108/973) (20/1502) 

These fiqures 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 the victim 

was black. Similarly, only 8% of white defendants compared 

to 22% of black defendants received the death penalty when 

1p Exhibit 63. 

 



  

the victim was white. The Supreme Court has found similar 

gross-disparities to be sufficient proof of discrimination 

to support a Fourteenth Amendment violation. ? 

The Baldus study undertook to determine 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 necessarv to analyze and compare each of 

Lhe potential death penalty cases and ascertain what 

relevant factors were available for consideration bv the 

decision makers.3 There were many factors such as prior 

capital record, contemporaneous 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 

another way, race influences the verdict just as much as any 

one of the aggravating circumstances listed in Georgia's 

death penalty statute.? Therefore, in the application of 

the statute in Georgia, race of the defendant and of the 

victim, when it is black/white, functions as if it were an 

aggravating circumstance in a discernible number of cases. 

2gee discussion below at Page 9. 

3An 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 cases in which the death penalty may not be 

imposed." Zant v. Stephens, 77 L.Ed.2d 235, 251. 
  

246.C.G.A, § 17-10-30. 

 



  

See Zant v. Stephens, U.S. , 103: 8.0L. 2733, 21747 
  

(1983) (race as an aggravating circumstance would be 

constitutionally impermissible). 

Another part of the study compared the disparities 

in death penalty sentencing according to race of the 

defendant and race of the victim and reflected the 

differences in the sentencing depending upon the predicted 

chance of death, i.e., whether the type of case was Or was 

not one where the death penalty would be given. 

 



n 

  

Table 43 

RACE OF DEFENDANT DISPARITIES IN DEATH SENTENCING RATES CONTROLLING FOR THE PREDICTED LIKELIHOOD OF A DEATH SENTENCE AND THE RACE 

OF THE VICTIM 

  
  

  

  

A B ¢ D E F 

Predicted Average Death Death 

Chance of Actual Sentencing Rates for Sentencing Rates for 
of a Death Sentencing White Victim Arithmetic Black Victim 

Sentence Rate Cases Involving Difference in Ratio of Cases Involving 
1 (least) for the Race of the Race of the 

to 8 Cases at Black White Defendant Rates Defendant Rates Black White 

(highest) Each Level Defendants Defendants (Col.C-Col.D) (Col.C/Col.D) Defendants Defendants 

1 .0 .0 .0 .0 - «0 - 

(0/33) (06/9) (0/5) (0/19) 

2 .0 .0 .0 .0 - .0 .0 

(0/56) (0/8) (0/19) (0/27) (0/1) 

3 .08 .30 .03 «27 10. 11 .0 
(6/717) (3/10) (1/39) (2/18) (0/9) 

4 .07 23 .04 .19 5.75 .0 - 
(4/57) (3/13) (1/29) (0/15) 

S wit «35 .20 «15 1.75 17 - 
(15/58) (9/26) (4/20) (2/12) 

6 .18 .38 .16 «232 2.38 .05 . 50 
(11/63) (3/8) (5/32) (1/20) (2/4) 

7 .41 .64 .39 .25 1.64 .39 .0 
(29/170) (9/14) (15/39) (5/13) (0/5) 

[}] .88 .91 .89 .02 1.02 +715 a= 
(51/58) (20/22) (25/28) (6/8) 

Jo
t 

Arithmetic 

Difference 

in Race of the 

Defendant Rates 
(Col.G-Col.H) 
  

Pt
 

Ratio 

Race of the 

Defendant Rates 
(Col.G/Col.H)   

  

.10 

  

 



  

Columns A and B reflect the step progression of 

least aggravated to most aggravated cases. Table 43, DB, 

Ex. 91.5 Columns C and D compare sentencing rates 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 penalties were given in 

50 cases, only toi blacks and three whites escaping the 

death penalty--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 

penalties disproportionately to white defendants by 

differences of .27, .l19, .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 penalty. 

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. 

5rhe eight sub-groups were derived from the group of cases 

where the death penalty was predictably most likely based 

upon an analysis of the relevant factors that resulted in 

the vast majority of defendants receiving the death penalty 

- 116 out of the total 128. This group was then sub-divided 

into the eight sub-groups in ascending order giving 

consideration to more serious aggravating factors and larger 

combinations of them as the steps progress. Tr. pages 

377-83. 

  

 



  

Statistics as Proof 
  

The jury selection cases have utilized different 

methods of statistical analysis in determining whether a 

disparity is sufficient to establish a prima facie case of 

6 
purposeful discrimination. Early jury selection cases, 

  

such as Swain v. Alabama, used very simple equations which 

primarily analyzed the difference of minorities eligible for 

jury duty from the actual number of minorities who served on 

the jury to determine if a disparity amounted to a 

substantial underreoresentation of minority jurors.’ 

Because this simple method did not consider many variables 

in its equation, it was not as accurate as the complex 

statistical equations widely used today.8 

The mathematical disparities that have been 

accepted by the Court as adequate to establish a prima facie 

case of purposeful discrimination range approximately from 

61n Villafane v. Manson, 504 F.Supp. 78 (D.Conn. 1980), the 

court noted that four forms of analysis have been used: (1) 

the absolute difference test used in Swain v. Alabama, 380 

9.8. 302, 85 8.Ct. 824,13 L.B4.24 759 (1965) 42) the ratio 

aporoach; (3) a test that moves away from the examination of 

percentages and focuses on the differences caused by 

underreoresentation in each jury; and (4) the statistical 

decision theory which was fully embraced in Castaneda v. 

pPartida, 430 U.S. at 496 n.17, 97 S.Ct. at 1281 n.l7. See 

also Finkelstein, The Application of Statistical Decision 

Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 

338 (1966). 

  

  

  

  

  

  

7See Swain v. Alabama, 389 U.S. 202, 85 S.Ct. 824, 13 L.E4.24 
759 (1965); Villafane v. Manson, 504 F.Supp. at 83.   

  

85ee Tinkelstein, The Application of Statistical Decision 

Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 

338, 363 (1966) ("The Court did not reach these problems in 

Swain because of its inability to assess the significance of 

statistical data without mathematical tools."). 

  

  

= 

 



  

14% to 40s.° "Whether or not greater disparities 

constitute prima facie evidence of discrimination depends 

pon the facts of each case."10 

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 approved by the Supreme 

Court.ll The object of this system, as well as any 

constitutionally permissible capital sentencing system, is 

to provide individualized treatment of those eligible for 

the death penalty to insure that non-relevant factors, i.e. 

factors that do not relate to this particular individual or 

the crime committed, play no part in deciding who does and 

who does not receive the death penalty.l? The facts 

9castaneda v. Partida, 430 U.S. at 495-96, 97 S.Ct. at 

1280-82 (disparity of 40%); Turner Vv. Fouche, 396 U.S. 346, 

9% S.Ct. 832, 24 L.BRd.24 367 (1970) (disparity of 23%); 

Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.E4.24 

509 (1967) (disparity of 18%); Sims Vv. Georgia, 389 U.S. 

404, 33. 8.Ct. 323, 19 L.B4.24 634 (1967) (disparity of 

19.7%); Jones v. Georgia, 389 U.S. 24, 38 S.Ct. 4, 19 

L.E4d.2d 25 (1967) (disparity of 14.7%). These figures 

result from the computation used in Swain. 

  

  

  

  

  

10ynited States ex rel Barksdale v. Blackburn, 639. 7.24 1115, 

1122 (5th Cir. 1981) (en banc). 
  

llGreqq v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 

859 (1976). 
  

127he sentencing body's decision must be focused on the 

"particularized nature of the crime and the particularized 

characteristics of the individual defendant." 428 U.S. at 

206. 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 noncapital 

cases." 438 U.S. at 605); Eddings v. Oklahoma, 455 U.S. 

  

  

8 

 



  

disclosed by the Baldus study, some of which have been 

previously discussed, demonstrate 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 Fourteejth 

Amendment violation of the Equal Protection Clause. It is 

that discrimination against which the Equal Protection 

Clause stands to protect. The majority, however, fails to 

ive full reach to our Constitution. While one has to 

acknowledge the existence of prejudice in our society, one 

cannot and does not accept its application in certain 

contexts. This is nowhere 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 required in all 

types of equal protection cases charging racial 

discrimination."l3 The Court has required proof of intent 

before it will strictly scrutinize the actions of a 

does focus on a characteristic of the particular defendant, 

albeit an impermissible one. See infra. po. 3. 
  

l3Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 3276, 73 
  

L.B4.24 1012 (1982). 

 



  

legislature or any official entity.l4 In this respect, the 

intent rule is a tool of self-restraint that serves the 

purpose of limiting judicial review and policymaking.ld 

The intent test is not a monolithic structure. As 

with all legal tests, its focus will vary with the legal 

context in which it is applied. Because of the variety of 

situations in which discrimination can occur, the method of 

proving intent is the critical focus. The majority, by 

failing to recognize this, misconceives the meaning of 

intent in the context of equal protection jurisprudence. 

| Intent may be proven circumstantially by utilizing 

a variety of objective factors and can be inferred from the 

totality of the relevant facts.l® The factors most 

appropriate in this case are: (1) the presence of 

1414, at n.5 ("Purposeful racial discrimination invokes the 
strictest scrutiny of adverse differential treatment. 
Absent such purpose, differential impact is subject only to 
the test of rationality."); 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."). 

    

  

15phe intent rule "serves a countervailing concern of limiting 
judicial policy making. Washington v. Davis can be 
understood . . . as a reflection of the Court's own sense of 
institutional self-restraint--a limitation on the power of 
judicial review that avoids having the Court sit as a super 
legislature . , . 7 Note, Section 1981: Discriminatory 
Purpose or Disproportionate Impact, 80 Colum. L. R. 137, 
1560-61 (1980); see also Washington v. Davis, 426 U.S. 229, 
247-48, 84 S.Ct, 2040, 2051, 48 1..24.24 3597 (1978). 

  

  

  

  

l6gee Village of Arlington Heights v. Metropolitan Housing 
Development Corp,., 429 U.S. 252, 266, 97 5.Ct." 555, 564, 50 

L.23.24 450 (1977). 

  

  

10 

 



  

historical discrimination; and (2) the impact, as shown by 

the Baldus study, that the capital sentencing law has on a 

suspect class.l? The Supreme Court has indicated that: 

Evidence of historical discrimination is relevant 
to drawing an inference of purposeful 
discrimination, particularly . . . where the 
evidence shows that discriminatory 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 neutral on their face, 
serve to maintain the status quo. 

Evidence of disparate impact may demonstrate that 

an unconstitutional purpose may continue to be at work, 

especially where the discrimination is not explainable on 

non-racial grounds. 13 Table 43, supra p. 4, the table and 

the accompanying evidence leave unexplained the 20% racial 

disparity 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, 

1713. see also Rogers v. Lodge, 102 S.Qt. at 3280. 
  

18gogers v. Lodges, 102 S.Ct. at 3280. 
  

191n washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049, 
the Court stated: "It is also not infrequently true that 
the discriminatorv imvact . . . may for all practical 
purposes demonstrate unconstitutionality because in various 
circumstances the discrimination is very difficult to 
explain on nonracial grounds." See also Personnel 
Administrator of Mass. v. Feenvy, 442 U.S. 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 uvon a group that has historically been a victim of 
discrimination, an unconstitutional purpose may still be at 
work) . 

  

  

  

  

  

11 

 



  

it has, for example, relaxed the standard of proof in jury 

selection cases because of the "nature" of the task 

involved in the selection of jurors. 20 Thus, to show an 

equal protection violation in the jury selection cases, a 

defendant must prove that "the procedure employed resulted 

in a substantial underrepresentation of his race or of the 

identifiable group to which he belongs."?21 The idea behind 

this method is simple. As the Court pointed out, "[i]lf a 

disparitv is sufficiently 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-related factors entered into the selection 

process. "22 Once there is a showing of a substantial 

underrepresentation of the defendant's group, a prima facie 

case of discriminatory intent or purpose is established and 

the state acquires the burden of rebutting the case. ?3 

20yi11age of Arlington Heights v. Metropolitan Housing 
Development Corp,., 426 U.83. at 267 n.13, 97 S.Ct, at 564 
n.1l3 ("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 
approach the extremes of Yick Wo or Gomillion."); see also 
International Bro. of Teamsters v. United States, 431 U.S. 
324, 339, 97 S.Ct. 1843, 1856 (1977) ("We have repeatedly 
approved the use of statistical proof . . . to establish a 
prima facie case of racial discrimination in jury selection 
cases."). 

  

  

    

  

2lcastaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 
1280, 51 L.Ed.2d 498 (1977). 
  

2214, at n.l3, 

2314. at 495, 1280. 

12 

 



  

In many respects the imposition of the death 

penalty is similar to the selection of jurors in that both 

processes are discretionary in nature, vulnerable to the 

bias of the decision maker, and susceptible to a rigorous 

statistical analysis. 24 

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 

reasonable acts of administrators and executives; and (2) 

preventing the questioning of tax, welfare, public service, 

regulatory, and licensing statutes where disparate impact is 

the only proof. 22 However, utilizing the standards of proof 

in the jury selection cases to establish intent in this case 

will not contravene this policy because: (1) deference is 

not warranted where the penalty is grave and less severe 

alternatives are available; and (2) the court did not 

contemplate capital sentencing statutes when it established 

2430yner, 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, versonality, education, profession, job, 

clothes, demeanor, and remorse . . . ." Majority opinion at 

62. However, it is these differences that often are used to 
mask, either intentionally or unintentionally, racial 

prejudice. 

  

  

  

25see Washington v. Davis, 426 U.S. at 248, 96 S.Ct. at 2051; 
Note, Section 1981: Discriminatory Purpose or 
Disproportionate Impact, 830 Colum. L. R. 137, 146-47 (1980). 

  

  

  

13 

 



  

this policy. Thus, statistics alone could be utilized to 

prove intent in this case. But historical background is 

also relevant and supports the statistical conclusions. 

"Discrimination on the basis of race, odious in 

all aspects, is especially pernicious in the administration 

of Justice."2® It is the duty of the courts to see to it 

that throughout the procedure for bringing a person to 

justice, he shall enjoy "the protection which the 

Constitution quarantees."2’ In an imperfect society, one has 

to admit that it is impossible to guarantee that the 

administrators of justice, both judges and jurors, will 

successfully wear racial blinders in every case.?8 However, 

the risk of prejudice must be minimized and where clearly 

present eradicated. 

26pose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 61 
L.Ed.2d 739 (1979). 
  

27Rose, supra, 443 U.S. at 557. 
  

28p¢ Robesvierre 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). 
  

14 

 



  

Discrimination against minorities in the criminal 

justice system is well documented.?? This is not to say that 

progress has 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, racial and other forms of 

discrimination still remain a fact of life, in the 

administration of justice as in our society as a 

  

295ee, e.d., Johnson v, Virginia, 373 U.S. 61, 83 8.Ct. 1033, 

10  L.Ed.2d 195 (1963) (invalidating segregated seating in 

courtrooms); Hamilton v. Alabama, 376 U.S. 650, 84 S.Ct. 

982, 11 L.Ed.2d 979 (1964) (conviction reversed when black 

defendant was racially demeaned on cross-examination); 

Davis v. Mississippi, 394 U.S. 731, 89 S.Ct. 1420, 22 

L.Ed.2d 684 (1969) (mass fingerprinting of young blacks in 

search of rape suspect overturned). See also Rose v. 

Mitchell, supra (racial discrimination in grand jury 

selection); 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 Bailev 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 

underreoresent blacks and women in traverse and grand juries 

but avoid a orima facie case of discrimination because the 

vercentage disvarity would still be within the parameters of 

Supreme Court and Fifth Circuit case law. See notes 7-8 

supra and relevant text. The result was that a limited 

number of blacks were handpicked by the jury commissioners 

for service. 

  

  

  

  

  

  

  

is 

 



  

whole. Perhaps today that discrimination takes a 

form more subtle thay before, But it is no less 

real or pernicious. 

If discrimination is especially pernicious in the 

administration of justice, it is nowhere more sinister and 

abhorrent than when it plays a part in the decision to 

impose societv's ultimate sanction, the penalty of death.31 

It is also a tragic fact that this discrimination is very 

much a vart of the country's experience with the death 

penalty,32 Again and as the majority 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 

30rose, supra, 443 U.S. at 538-59, 
  

3lgee, e.g., Furman v. Georgia, 408 U.S. 238, 32 S.Ct. 345, 

33 L.Ed. 2d 346 (1972) (see especially the opinions of 

Douglas, J., concurring, id. at 249-252; Stewart, J., 

concurring, id. at 309-310; Marshall, J., concurring, id. at 

364-365; Burger, C.J., dissenting, id. at 389-390 n.l2; 

Powell, J., dissenting, id. at 449). 

  

  

32vhis 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, "[i]ndeed a look at the 

bare statistics regarding executions is enough to betray 

much of the discrimination." Id. 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, 89.5% were black or minorities. 

Sarah T. Dike, Capital Punishment in the United States, Pp. 

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, 

208 were black. Fifty-eight blacks were executed 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). 

  

  

  

  

16 

 



  

L] 1] 

discrimination, some of it unconscious, but it is 

nonetheless real and it is important that we at least admit 

chat discrimination is present. 

Finally, the state of Georgia also has no 

compelling interest to justify a death penalty system that 

discriminates on the basis of race. Hyoothetically, if a 

racial bias reflected itself randomly in 20% of the 

convictions, one would not abolish the criminal justice 

system. Ways of ridding the system 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 

perpetrators 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 

unconscious biases. 

However, such reasoning cannot sensibly be invoked 

and bias cannot be tolerated when considering the death 

penalty, a punishment that is unique in its finality.33 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 

335ee, e.q., Woodson v. North Carolina, 428 U.S. 280, 305, 96 
S.Ct. 2978, 49 L.EdQ.2d 942 (1976). 
    

17 

 



  

circumstances is to aoprove a racial preference in the most 

serious decision our criminal justice system must make. This 

is 2 result our Constitution cannot tolerate. 

The majority in this case does not squarely face 

up to this choice and its consequences. Racial 

nrejudice/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 

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. 

18 

-
 

 



  

FOR THE ELEVENTH CIRCUIT 

IN THE UNITED STATES COURT OF APPEALS 86 

No. 84-8176 

WARREN McCLESKEY, 

Petitioner-Appellee, 

Cross-Appellant, 

versus 

RALPH KEMP, WARDEN, 

Respondent-Appellant, 
Cross-Appellee. 

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

(January 29, 1985) 

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, 
KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON, AND CLARK, Circuit 

Judges. 

RONEY, Circuit Judge, in which Judges Tjoflat, Hill, Fay, Vance, 
Henderson and Anderson join¥*: 

*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 have 
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 opinion on the Giglio issue but joins in the 
opinion on all other issues. 

Chief Judge Godbold dissents from the judgment of the Court on the 
Giglio issue but joins in the opinion on all other issues. 

Judges Johnson, Hatchett and Clark dissent from the judgment of the 
Court on the constitutional application of the Georgia death 
sentence and the Sandstrom and Giglio issues and each has written a 

  

separate dissenting opinion. 

 



  

This case was taken en banc principally to consider 

the argument arising in numerous capital cases that statistical 

proof shows the Georgia capital sentencing law 1s being 

administered in an unconstitutionally discriminatory and 

arbitrary and capricious matter. After a lengthy evidentiary 

hearing which focused on a study by Professor David C. Baldus, 

the district court concluded for a variety of reasons that the 

statistical 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 cliaim 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 (1972). We affirm the judgment denying 

relief on all other points raised by the defendant, that is: (1) 

that defendant received ineffective assistance of counsel; (2) 

that jury instructions contravened the due process clause in 

 



  

violation of Sandstrom v. Montana, 442 U.S. 510 (1979); and (3) 
  

that the exclusion of death-scrupled jurors violated the right 

to an impartial and unbiased 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 denied 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 

Furniture 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 showroom 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 eyewitness' accounts that it was he who entered 

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

testified that McCleskey admitted to shooting the officer. A 

jail inmate housed near McCleskey testified that McCleskey made 

a "jail nouse confession" 1in 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 

caliber Rossi in a previous holdup. 

PRIOR PROCEEDINGS 

The jury convicted McCleskey of Warder and two counts of 

armed robbery. At the penalty hearing, neither side called any 

witnesses. The State introduced documentary evidence of 

McCleskey's three prior convictions 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 convictions and sentences were 

affirmed by the Georgia Supreme Court. McCleskey v. State, 245 
  

Ga. 108, 263 S.BE.24 146, cert. denied, 449 U.S, :891 (1980). 
  

McCleskey then petitioned 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 (1981). 
  

 



  

McCleskey then filed his petition for habeas corpus 

relief in federal district court asserting, among other things, 

the five constitutional challenges at issue on this appeal. 

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, 580 F. Supp. 338 (N.D. Ga. 1984). 
  

This opinion addresses each issue asserted 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 Sandstrom issue. 
  

GIGLIO CLAIM 

The district court granted habeas corpus relief to 

McCleskey because it determined 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 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 
  

5.8. 150 (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 incarcerated with 

McCleskey, was called by the State on rebuttal to strengthen its 

proof that McCleskey was the triggerman at the holdup. Evans 

testified that McCleskey admitted 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 

officials, 

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, 1 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 told me. 

Q: (by McCleskey's attorney): The Detective 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 

contacted federal authorities after McCleskey's trial to advise 

them of Evans' cooperation and that the escape charges were 

dropped. 

The Trial Testimony 
  

At the trial, the State brougnt out on direct examination 

that Evans was incarcerated on the charge of escape from a 

federal nalfway house, Evans denied receiving any promises 

from the prosecutor and downplayed the seriousness of the 

escape charge. 

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

A: No, Sir, you. ain't. 

Q: You do nave an escape charge still pending, 

is that correct? 

Ar 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 tnere so I 
just went home. I stayed at home and when I 
called the man and toid him that I would be a 
little late coming in, he placed me on escape 
charge and told me there wasn't no use of me 
coming back, and I just stayed on at home and 
he come and picked me up. 

Q: Are you hoping that perhaps you won't be 
prosecuted for that escape? 

A: Yeah, I hope I don't, but I don't -- what they 

teil me, they ain't going to charge me with 
escape no way. 

 



  

Qf Have you asked me to try to fix it so you 
wouldn't get charged with escape? 

A: NO, sir. 

Q: “Have TI told you 1. .would try to £ix it for 
you? 

A: No, sic. 

The State Habeas Corpus Decision 
  

The state court rejected McCleskey's Giglio claim on the 

following reasoning: 

Mr. Evans at the habeas nearing 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 ex 
parte communication recommendation alone is not 
sutficient to trigger the applicability of Giglio 
V. United States, 405 U.S. 150 (1972). 
  

The prosecutor at petitioner's trial, Russel J. 
Parker, stated that he was unaware of any 
understandings between Evans and any Atlanta 
Police Department detectives regarding a favorable 
recommendation to be made on Evans' federal escape 
charge. Mr. Parker admitted that there was 
opportunity for Atlanta detectives to put in a 
good word for Evans with federal authorities. 
However, he further stated that when any police 
officer has been killed and someone ends up 
testifying for the State, putting his life in 
danger, it is not surprising that charges, like 
those against Evans, will be dropped. 

In the absence of any other evidence, the Court 
cannot conclude an agreement existed merely 
because of the subsequent disposition of criminal 
charges against a witness for the State. 

Although 1t is reasonable to conclude that the state 

 



  

court found that there was no agreement between Evans and the 

prosecutor, 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 violation had occurred. 

Was It a Promise? 
  

The Supreme Court's rationale for imposing this rule is 

that "[t]lhe jury's estimate of the truthfulness and reliability 

of a given witness may well be determinative of guilt or 

innocence." Napue v. Illinois, 360 U.S. 264, 269 (1959). The 
  

Court has never provided definitive guidance on when the 

Government's dealings with a prospective witness so affect the 

witness' credibility that they must be disclosed at trial. In 

Gigiio, a prosecutor promised the defendant's alleged 

co-conspirator that no charges would be brought against him if 

he testified against the defendant. In Napue, a prosecutor 

promised a witness that in exchange for his testimony the 

prosecutor would recommend that the sentence the witness was 

 



  

presently serving be reduced. 

In this case, the detective's promise to speak a word 

falls far short of the understandings reached in Giglio and 

Napue. As stated by this Court, "[t]lhe thrust of Giglio and its 

progeny has been to ensure that the jury know the facts that 

might motivate a witness in giving testimony." Smith v. Kemp, 
  

715 F.24 1459, 1467 (llth Cir.), cert. denied, U.S. 
  

+: “38 L.EA.24 699 (1983). The detective's statement 
  

offered such a marginal benefit, as indicated by Evans, that it 

is doubtful it would motivate a reluctant witness, or that 

disclosure of the statement would have had any effect on his 

credibility. The State's nondisclosure therefore failed to 

infringe McCleskey's due process rights. 

10 

 



  

Was Any Violation Harmless? 
  

In any event, there is no "reasonable 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 Glglio, 405 p.s. at 154. Evans' 
  

credibility was exposed to substantial impeachment even 

without the detective's statement and the inconsistent 

description of his escape. The prosecutor began his direct 

examination by having Evans recite a litany of past 

convictions. Evans admitted to convictions for forgery, two 

burglaries, larceny, carrying a concealed weapon, and theft 

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

attorney attempted to portray Evans as a "professional 

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 wv. 
  

Andergon, 574 F.24 1347, 1356 (5th Cir. 1978). 
  

McCleskey claims Evans' testimony was crucial because the 

only other testimony which indicated he pulled the trigger came 

from his codefendant, Ben Wright. Ben Wright's testimony, 

McCleskey urges, would have been insufficient under Georgia law 

to convict him without the corroboration provided by Evans. In 

11 

 



  

Georgia, an accomplice's testimony alone in felony cases is 

insufficient to establish a fact. O0.C.G.A. 3 24-4-8. Wright's 

testimony, however, was corroborated by McCieskey's own 

confession in which McCleskey admitted participation in the 

robbery. See Arnold v, State, 236 Ga. 534, 224 s.R.24 386, 388 
  

(1976). Corrobration need not extend to every material detail. 

Blalock v. State, 250 Ga. 441, 298 S.E.24 477,:479-80 (1983); 
  

Cofer v. State, 166 Ga. App. 436, 304 s.B.24 537, 539 (1983). 
  

The district court thought Evans' testimony critical 

because of the information he supplied about makeup and 

McCleskey's intent in shooting the police officer. Although we 

agree that his testimony added weight to the prosecution's 

case, we do’ not find that it could "in any reasonable 

likelinood have affected the judgment of the jury." Giglio, 

450 U.S. at 154 ‘(quoting Napue v. Illinois, 360 U.S. at 271). 
  

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 1f 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 

prosecutor presented to the jury three reasons supporting a 

conviction for malice murder. First, he argued that the 

physical evidence showed malicious intent because it indicated 

that McCleskey shot the police officer once in the head and a 

12 

 



  

second time in the chest as he lay dying on the floor. Second, 

the prosecutor asserted that McCleskey had a choice, either to 

surrender or to kill the officer. That he chose to 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 McCleskey was not developed at 

length during Evans' testimony and was mentioned only in 

passing by the prosecutor in closing argument. 

Evans' testimony that McCleskey had made up his face 

corroborated the identification testimony of one of the 

eyewitnesses. Nevertheless, this evidence was not crucial to 

the State's case. That McCleskey was wearing makeup helps to 

establish he was the robber who entered the furniture store 

through the front door. This fact had already been directly 

testified to by McCleskey's accomplice and two eyewitnesses as 

well as corroborated by McCleskey's own confession. That 

Evans' testimony buttresses one of the eyewitnesses' 

identifications is relatively unimportant. 

Thus, although Evans' testimony might well be regarded as 

important in certain respects, the corroboration of that 

testimony 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 

13 

 



  

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 

administered arbitrarily, capriciously, and whimsically in the 

State of Georgia," and (2) it "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 Constitution. 

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 rejected 

by this Circuit in Spinkellink Vv. Wainwright, 578 F.2d 582, 
  

612-14 (5th Cir. 1978) .... 'fbut) petitioner's .Pourteenth 

Amendment claim may be appropriate for consideration in the 

context of statistical evidence which the petitioner proposes 

to present." Order of October 8, 1982, at 4. 

An evidentiary hearing was held in August, 1983. 

Petitioner's case in chief was presented through the testimony 

of two expert witnesses, Professor David C. Baldus and Dr. 

14 

 



  

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 recalled Professor Baldus and Dr. 

Woodworth, and presented further expert testimony from Dr. 

Richard Berk. 

In a comprehensive opinion, reported at 580 F. Supp. 338, 

the district court concluded that petitioner failed to make out 

a prima facie case of discrimination in sentencing based on 
  

either the race of victims or the race of defendants. The 

Court discounted the disparities shown by the Baldus 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 

because the models do not measure decisions based on knowledge 

available to decision-maker and only predicts outcomes in 50 

percent of the cases; and (3) demonstrated multi-collinearity 

among model variables, showing interrelationship among the 

variables and consequently distorting relationships, making 

interpretation difficult. 

15 

 



  

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 methodology, (2) other explanations 

for the study results could be demonstrated, such as, white 

victims were acting as proxies for aggravated cases and that 

black victim cases are acting as proxies for mitigated cases, 

and (3) black-victim cases being left behind at the life 

sentence and voluntary manslaughter stages, are less aggravated 

and more mitigated than the white-victim cases disposed of in 

similar fashion. 

The district court concluded that petitioner 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 evidence 

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 1s incapabie 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. 

16 

 



  

We adopt the following approach in addressing the 

argument that the district court erred in refusing to hold that 

the Georgia statute is unconstitutionally applied 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 ultimate facts that control a 

constitutional decision. Third, we discuss the 

constitutional law in terms of what must be proved in order 

for petitioner to prevail on an argument that a state capital 

punishment law is unconstitutionally applied because of race 

discrimination. Fourth, we discuss whether 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 discuss whether tnis study is valid to prove what it 

purports to prove. Sixth, we decide 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 decision that the Georgia law was being 

unconstitutionally applied, much less would it compel such a 

17 

 



  

finding, the level which petitioner would have to reach in 

order to prevail on this appeal. 

The Baidus Study 
  

The Baldus study analyzed the imposition of sentence in 

homicide cases to determine the level of disparities 

attributable to race in the rate of the imposition of the death 

sentence, In the first study, Procedural Reform Study (PRS), 

the results revealed no race-of-defendant effects whatsoever, 

and the results were unclear at that stage as to race-of-victim 

effects. 

The second study, the Charging and Sentencing Study 

(CSS), consisted of a random stratified sample of all persons 

indicted for murder from 1973 through 1979. The study 

examined the cases from indictment through sentencing. The 

purpose of 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 

circumstances, mitigating circumstances, strength of evidence, 

time period of imposition of sentence, geographical areas 

(urban/rural), and race of defendant and victim. The data 

collection for these studies was exceedingly complex, involving 

18 

 



  

cumbersome data collection instruments, extensive field work by 

multiple data collectors and sophisticated computer coding, 

entry and data cleaning processes. 

Baldus and Woodworth completed a multitude of statistical 

tests on the data consisting of regression analysis, indexing 

factor . analysis, cross tabulation, ‘and. triangulation. The 

results showed a 6% racial effect systemwide for white victim, 

black defendant cases with an increase to 20% in the mid-range 

of cases. There was no suggestion that a uniform, 

institutional bias existed that adversely affected defendants 

in white victim cases in all 'circumstances, or: ‘a black 

defendant in all cases. 

The object of Baldus study in Pulton 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 involving police 

officer victims in Fulton County, statistical analysis could 

not be utilized effectively. Baldus conceded that it was 

19 

 



  

difficult to draw any inference concerning the overall race 

effect in these cases because there had only been one death 

sentence. He concluded that based on the data there was only a 

possibility that a racial factor existed in McCleskey's case. 
  

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. Social Science is a broad-based field 

consisting of many specialized discipline areas, such as 

psychology, anthropology, economics, political science, history 

and sociology. Cf. Sperlich, Social Science Evidence and the 
  

Courts: Reaching Beyond the Advisory Process, 63 Judicature 
  

280, 283 n. 14 (1980). Research consisting of parametric and 

nonparametric measures is conducted under botn 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 understand 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 nonexact science is always mindful that 1ts research is 
  

dealing with highly complex behavioral patterns and 

institutions that exist in a highly technical society. At 

pest, this research "models" and "reflects" society and 

20 

 



  

provides society with trends and information for broad-based 

generalizations. The researcher's intent is to use the 

conclusions from research to predict, plan, describe, explain, 

understand or modify. To utilize conclusions from such 

research to explain the specific intent of a specific 

behavioral situation goes beyond the legitimate uses for such 

research. Even when this research 1s at a high level of 

exactness, in design and results, social scientists readily 

admit their steadfast hesitancies to conclude such results can 

explain specific behavioral actions in a certain situation. 

The judiciary 1s 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 researcher; (4) the inherent 

problems with the methodology; (5) the specialized training 

needed to assess and utilize the data competently, and (6) the 

debatability of the appropriateness for courts to use empirical 

evidence in decisionmaking. CFv i Henry, Introduction: A 
  

Journey into the Future-- The Role of Empirical Evidence in 
  

Developing Labor Law, 1981 U. Ill. L.Rev. 1,4; Sperlich, 63 
  

Judicature at 283 n.l4. 

Historically, beginning with "Louis Brandeis' use of 

empirical evidence before the Supreme Court ... persuasive 

social science evidence has been presented to the courts." 

21 

 



  

Forst, Rhodes & Wellford, Sentencing and Social Science: 
  

Research for the Formulation of Federal Guidelines, 7 Hofstra 
  

L. Rev, 355 (1979). : See Muller v, Oregon, 208 U.5. 412 (1908); 
  

Brown v. Board of Education, 347 U.S. 483 (1954). The Brandeis 
  

brief presented social facts as corroborative in the judicial 

decisionmaking process. O'Brien, Of Judicial Myths, 
  

Motivations and Justifications: A Postscript on Social 
  

Science and the Law, 64 Judicature 285, 288 (1981). The 
  

Brandeis brief "is a well-known technique for asking the court 

to. take Judicial notice of social facts." Sperlich, 63 

Judicature at 280, 285 n.3l. "It does not solve the problem 

of how to bring valid scientific 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.” 

14. 

This Court has taken a position that social science 

research does play a role in judicial decisionmaking in 

certain situations, even in light of the limitations of such 

research. Statistics have been used primarily in cases 

addressing discrimination. 

Statistical analysis is useful only to show facts. In 

evidentiary terms, statistical studies based on correlation are 

circumstantial evidence. They are not direct evidence. 

22 

 



  

Teamsters vv. United States, 431 4.S. 324, 340 (19773. 
  

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. 

The usefulness of statistics obviously 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 

motivation must be proved, the statistics have even less 

utility. This Court has said in discrimination cases, however, 

"that while statistics alone usually cannot establish 

intentional discrimination, under certain limited circumstances 

they might." Spéncer 'v. 2ant, "715 P.28 1562, 153% (1ll¢h 
  

Cir.), on pet.for reh'g and for reh'g en bang, 729 PFP.24 1293 
  

(11th Cir. 1983). See also Eastland v. Tennessee Valley 
  

Authority, 704 7.24 613, 618 {1ith Cir. 1983): Johnson v.   
  

Uncle Ben's, Inc., 628 7.24 419, 421 (5th Cir. 1980), cert. 
  

23 

 



  

denied, 459 U.S. 967 (1982). These limited circumstances are 

where the statistical evidence of racially disproportionate 

impact is so strong as to permit no inference other than that 

the results are the product of a racially discriminatory intent 

Or purpose. See Smith v. Balkcom, 671 F.2d 858 (5th Cir. Unit 
  

B), cert. denied, 459 U.S. 882 (1982). 
  

Statistical evidence has been received in two ways. The 

United States Supreme Court has simply recognized the existence 

of statistical studies and social science research in making 

certain decisions, without such studies being subject to the 

rigors of an evidentiary hearing. Muller v. Oregon, 208 U.S. 
  

412 (1908); Fowler v. North Carolina, 428 U.S. 904 (1976); 
  

Woodson v. North Carolina, 428 U.S. 280 (1976); Jurek v. Texas, 
  

  

428 U.S. 262 (1976); Proffitt v, Florida, 428 U.8. 242 (9176); 
  

Gregg v. Georgia, 428 U.S, 153 (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 because 

the court relied on empirical generalization." 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 

"institutions" represented and through a specific ruling 

effected changes in the institutions. On the other hand, 

24 

 



  

statistical evidence may be presented in the trial court 

through direct testimony and cross-examination on statistical 

information that bears on an issue. Such evidence is examined 

carefully and subjected to the tests of relevancy, 

authenticity, probativeness and credibility. Cf. Henry, 1981 

U. 111. L.Rey, at 8. 

One difficulty with statistical evidence is that it may 

raise more questions than it answers. This Court reached that 

conclusion in Wilkins v. University of Houston, 654 F.2d 388 
  

(5th Cir, Unit ‘A 1981). In Wilkins this Court held that 

"[m]Jultiple regression analysis is a relatively sophisticated 

means of determining the effects that any number of different 

factors have on a particular variable." Id. at 402-03. This 

Court noted that the methodology "is subject to misuse and thus 

must be employed with great care." 14. at 403. 

Procedurally, 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." Id. Having done 

this, the Wilkins Court, in an employment discrimination case, 

held "the statistical evidence associated with the multiple 

regression analysis 1s inconclusive, raising more questions 

25 

 



  

than it answers." 1d. 

Even 1f the statistical evidence is strong there is 

generally a need for additional evidence. In Wade wv. 
  

Mississippi Cooperative Extension Serv., 528 F.2d 508 (5th Cir. 
  

1976), the results drawn from the multi-variate regression 

analysis were supported by additional evidence. g4. at 517. 

In Wade the statistics did not "stand alone" as the sole proof 

of discrimination. 

Much has been written about the relationship of law and 

the 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 AndDeath Penalty Cases, 1 Law & Pol'y Q. 336, 
  

367 (1979). "Social science can probably make its greatest 

contribution to legal theory by investigating the causal 

forces behind Judicial, legislative and administrative 

decisionmaking and by probing the general effects of such 

decisions." Nagel, Law And The Social Sciences: What Can 
  

Social Science Contribute?, 356 A.B.A.J. 356, 357-58 (1965). 
  

With these observations, this Court accepts social 

science research for what the social scientist should claim for 

it. As in all circumstantial evidence cases, the inferences to 

be drawn from the statistics are for the factfinder, but the 

statistics are accepted to show the circumstances. 

26 

 



  

Racial Discrimination, the Death 

Penalty, and the Constitution 
  

  

McCleskey contends his death sentence is unconstitutional 

because Georgia's death penalty 1s 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, capricious and 

irrational components of the prohibition of cruel and unusual 

punishment in the Eighth Amendment and the equal protection 

clause of the Fourteenth Amendment. 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 Fourteenth Amendment. 

Claims of this kind are seldom asserted with a degree of 

particularity, and they generally assert several constitutional 

precepts. 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 (1972), the Supreme 
  

Court struck down the Georgia death penalty system on Eighth 

Amendment grounds, with several of the concurring justices 

holding that the system operated in an arbitrary and capricious 

manner because there was no rational way to distinguish the few 

cases in which death was imposed from the many in which it was 

not. 1d. at 313 (White, J., concurring); id. at 309-10 (Stewart, 

27 

 



  

J. concurring). Although race discrimination in the imposition 

of the death penalty was not the basis of the decision, it was 

one of several concerns addressed in both the concurring and 

dissenting opinions. See id." at 249-32 (Douglas, . J. 

concurring); id. at 309-10 (Stewart, J. concurring); id. at 

364-65 (Marshall, J., concurring); id. at 389-90 n.12 (Burger, 

C.J., dissenting); id. at 449 (Powell, J., dissenting). 

Four years later, the Supreme Court approved the redrawn 

Georgia statute pursuant to which McCleskey was tried and 

sentenced. Gredd v. Georgia, 428 U.S. 153 (1976). At the same 
  

time the Court approved statutes from Florida and Texas which, 

like Georgia, followed a guided discretion approach, but 

invalidated the mandatory sentencing procedure of North Carolina 

and Louisiana. Proffitt v., Florida, 428 U.S. 242 (1976); Jurek 
  

v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428   

  

U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (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 P.24 316, 317 (11th Cir. 
  

1983) (statistical impact studies insufficient to show state 

system "intentionally discriminated against petitioner"), 

petition for stay of execution denied, U.S. r 18 
  

L.Ed.2d 210 (1983); Adams v. Wainwright, 709 F.2d 1443, 1449 
  

28 

 



  

(11th Cir. 1.1983) (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. denied, u.s. ; 19 L. 84.24 
  

203 (1984); Smith v.-Balkcom, 671 PF.24 3838, 859 (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 
  

(1932). 

Initially in Spinkellink v. Wainwright, 578 F.2d 582 
  

(5ch Cir. 1978), cert. denied, 440 U.8. 976 (1979), the Court 
  

rejected Eighth and Fourteenth Amendment claims that the Florida 

death penalty was being applied in a discriminatory 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 condemned in Furman -- have been 

conclusively removed." Id. at 613-14. Spinkellink can not be 
  

read to foreclose automatically all Eighth Amendment challenges 

to capital sentencing conducted under a facially constitutional 

statute. In Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme 
  

Court sustained an Eighth Amendment challenge to a Georgia death 

sentence because the Georgia court's construction of a portion 

29 

 



  

of that facially valid statute left no principled way to 

distinguish 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 (llth Cir. 1982). Nevertheless, neither Godfrey 

nor Proffitt undermine this Court's prior and subsequent 
  

pronouncements in Spinkellink, 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 nexus between Eighth Amendment claims 

and a Fourteenth Amendment equal protection claim. McCleskey 
  

Vv. Zant, 580 F.Supp. 338, 347 (N.D. Ga. 1984). Where an Eighth 

Amendment claim centers around generalized showings of disparate 

racial impact in capital sentencing, such a connection is 

inescapable. 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 protection clause of the 

Fourteenth Amendment, 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. 

30 

 



  

A successful Eighth Amendment challenge would require 

proof that the race factor was operating in the system 

in such a pervasive manner that it could fairly be said that the 

system was irrational, arbitrary and capricious. For the same 

reasons that the Baldus study would be insufficient to 

demonstrate discriminatory intent or unconstitutional 

discrimination in the Fourteenth Amendment context, it would be 

insufficient to show irrationality, arbitrariness and 

capriciousness under any kind of Eighth Amendment analysis. 

The district court stated that were it writing on a clean 

slate, it would characterize 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,” 

fundamentally contended that the Georgia death penalty was 

applied on the basis of a morally impermissible criterion: the 

race of the victim. 

The district court's theory derives some support from the 

Supreme Court's decision in Zant v. Stephens, 77 L.Ed.2d4 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." 4. at:255, From 

this language it is clear that due process would prevent a state 

31 

 



  

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, 

jurors, and judges, has implicitly attached the aggravating 

label to race. 

Even if petitioner had characterized 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 'fundamental fairness’ 

consists of in a particular situation by first considering any 

relevant precedents and then by assessing the several interests 

that are at stake." Lassiter v. Department of Social Services, 
  

452 U.S. 18, 24-25 (1981). Due process also requires the 

assessment of the risk that the procedures being used will lead 

to erroneous decisions. Mathews v. Eldridge, 424 U.S. 319, 335 
  

(1976). Where a due process claim requires a court to determine 

whether the race of the victim impermissibly affected the 

capital sentencing process, decisions under the equal protection 

clause, characterized as "central to the Fourteenth Amendment's 

prohibition of discriminatory action by the State," Rose v. 
  

Mitchell, 443 U.S. 545, 554-55 (1979), are certainly "relevant 
  

precedents" in the assessment of the risk of erroneous 

decisions. Thus, as in the equal protection context, the 

32 

 



  

claimant under a due process theory must present evidence which 

establishes that in the capital sentencing process race "is a 

motivating factor in the decision.” Village of Arlington 
  

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 
  

266 (19717). 

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 natural component of the proof 

that discrimination actually occurred. 

The Supreme Court has clearly held that to prove a 

constitutional claim of racial discrimination in the equal 

protection context, intent, purpose, and motive are necessary 

components. Washington v. Davis, 426 U.S. 229, 238-42 (12976). 
  

A showing of a disproportionate impact alone is not sufficient 

to prove discriminatory intent unless no other reasonable 

inference can be drawn. Arlington Heights, 429 U.S. at 264-66. 
  

This Circuit has consistently applied these principles of law. 

Adams v. Wainwright, 709 F.2d 1443, 1449 (llth Cir. 1983), cert. 
  

  

denied, 79 L.Ed.2d 203 (1984); Sullivan v. Wainwright, 721 F.2d 

33 

 



  

316,317 (11th Cir. 1583). 

We, therefore, hold that proof of a disparate impact 

alone 1s insufficient to invalidate a capital sentencing 

system, unless that disparate impact is so great that it 

compels a conclusion that the system is  unprincipled, 

irrational, arbitrary and capricious 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 
  

  

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 sentence. The answer lies in whether 

the statistical study is sufficient evidence of the ultimate 

fact which must be shown. 

In Smith v, Balkcom, 671 F.24 858, 859 (5th Cir. Unit B), 
  

cert. denied, 459 U.S, 882 (1982), this Court said: 
  

In some instances, circumstantial or statistical 

evidence of racially disproportionate impact may 

34 

 



  

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 shows a strong 

inference that there is a disparity based on race. That is 

only the first step, however. The second step focuses on how 

great the disparity is. Once the disparity is proven, 

the question is whether that disparity is sufficient to compel 

a conclusion that it results from discriminatory intent and 

purpose. The key to the problem lies in the principle that the 

proof, no matter how strong, of some disparity is alone 

insufficient. 

In Spinkélilink v. Wainwright, 578 P.24 582, 612 (5th Cir. 
  

1978), cert. denied, 440 U.S. 976 (1979), the petitioner 
  

claimed the Florida statute was being applied in a 

discriminatory fashion against defendants murdering whites, as 

opposed to blacks, in violation of the cruel and unusual 

punishment and equal protection components of the Constitution. 

Evidence of this disparity was introduced through expert 

witnesses. The court assumed for sake of argument the accuracy 

of petitioner's statistics but rejected the Eighth Amendment 

argument. The court rejected the equal protection argument 

35 

 



  

because the disparity shown by petitioner's statistics could 

not prove racially discriminatory intent or purpose as required 

by Washington v. Davis, 426 U.S. 229 (1976), and Village of 
  

  

Arlington Heights v. Metropolitan Housing Development Corp., 
  

429 U.S, 252..(1977). 5783 9.28 aL 614-16, 

In Adams v. Wainwright, 709 P.24 1443 (llth Cir. 1983), 
  

cert. denied, 79 L.BA.24 203 (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 1f the evidence of 
disparate impact is so strong that: the only 
permissible inference is one of intentional 
discrimination will it alone suffice. 

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 

36 

 



  

strong as to lead inevitably to a finding of motivation and 

intent, absent some other explanation for the disparity. 

In commenting on the proffer of the Baldus 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. 1 78... .L.EQ., 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 particularized 
with respect to any alleged "intentional" racial 
discrimination. Surely, no contention can be made 
that the entire Georgia judicial system, at all 
levels, operates to discriminate in all cases. 
Arguments to this effect may have been directed to 
the type of statutes addressed in Furman v. 
Georgia, 408 U.S. 238 (1972). As our subsequent 
cases make clear, such arguments cannot be taken 
seriously under statutes approved in Gregg. 

  

  

Stephens v. Kemp, U.S. ¢ 18 LEA. 24370, 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 particular defendant has been unconstitutionally 

sentenced to death. As to whether the system can survive 

constitutional attack, statistical studies at most are 

probative of how much disparity is present, but it is a legal 

question as to how much disparity is required before a federal 

court will accept it as evidence of the constitutional flaws in 

37 

 



  

the system. 

This point becomes especially critical to a court faced 

with a request for an evidentiary hearing to produce future 

studies which will undoubtedly be made. Needless to say, an 

evidentiary hearing would be necessary to hear any evidence 

that a particular defendant was discriminated against because 

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 evidentiary hearing as to studies 

which do nothing more than show an unexplainable disparity. 

Generalized studies would appear to have little hope of 

excluding every possible factor that might make a difference 

between crimes and defendants, exclusive of race. To the 

extent there is a subjective or judgmental component to the 

discretion with which a sentence is invested, not only will no 

two defendants be seen identical by the sentencers, but no two 

sentencers will see a single case precisely the same. As the 

court has recognized, there are "countless racially neutral 

variables" in the sentencing of capital cases. Smith wv. 
  

Balkcom, 671 F.2d at 859. 

This is not to recede from the general proposition that 

statistical studies may reflect a disparity so great as to 

inevitably lead to a conclusion that the disparity results from 

38 

 



  

intent or motivation. As decided by this opinion, the Baldus 

studies demonstrate 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 statistical 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 the 

independent variables. We hold in this case that even if the 

statistical results are accepted as valid, the evidence fails 

to challenge successfully the constitutionality of the Georgia 

system. Because of tnis decision, 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 received, analyzed and dealt with the 

39 

 



  

complex statistics. The district court is to be commended 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 (1908), 
  

and has been tested like other kinds of evidence at trial, see 

Spinkellink v, Wainwright, 578 P.24 582, 612-13 (5th Cir. 
  

1978), there is a question as to the standard of review of a 

trial court's finding based on a highly complex statistical 

study. 

Findings of fact are reviewed under the clearly erroneous 

standard which the Supreme Court has defined as: nial finding 

is 'clearly erroneous' when although 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 (1948). 

Whether a disparate impact reflects an . intent to 

discriminate is a ultimate fact which must be reviewed under 

the clearly erroneous standard. Pullman-Standard v. Swint, 456 
  

40 

 



  

U.S. 273 (1982). In Pullman, the Supreme Court said that Fed. 

R. Civ. P. 52(a) 

does not make exceptions or purport to exclude 
certain categories of factual findings from the 
obligation of a court of appeals to accept a 
district court's findings unless clearly 
erroneous. It does not divide facts into 
categories; 1in particular, 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. 

There would seem to be two levels of findings based on 

statistical evidence that must be reviewed: first, the finding 

concerning 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 wv. 
  

Zan, 580 .P.Supp. 338, 379 (N.D. Ga. 1984). We pretermit a 

review of this finding concerning the validity 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 

41 

 



  

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 impermissible, factor 

which accounts for the imposition of the death penalty in many 

cases. He supports this argument with the sophisticated 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 prohibits the consideration of racial 

factors as justification for the penalty, McCleskey asserts 

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 aggravation (mid-range aggravation cases). He argues that 

because his case fell within that range, he has established 

that impermissible racial considerations operated in his case. 

42 

 



  

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 concluded 

that his study showed that systematic and substantial 

disparities existed 1n the penalties imposed upon homicide 

defendants in Georgia based on race of the homicide victim, 

that the disparities existed at a less substantial rate in 

death sentencing based on race of defendants, and that the 

factors of race of the victim and defendant were at work in 

Fulton County. 

A general comment about the limitations on what the 

Baldus study purports to 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 

43 

 



  

role in sentencing structure in Georgia. 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 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 murder-death, murder-life and voluntary manslaughter 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 statistical 

analysis, Baldus examined relationships between the dependent 

variable, death-sentencing 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 significant race-of-the-victim effect operating 

statewide. It is more difficult, however, to ascertain the 

wd} 

 



  

magnitude of the effect demonstrated by the Baldus study. The 

simple, 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 explain the differential, Baldus still concluded that 

there was a significant race-of-the-victim effect. The result 

of Baldus' most conclusive model, on which McCleskey primarily 

relies, showed an effect of .06, signifying that on average a 

white victim crime is 6% more likely to result in the sentence 

than a comparable black victim crime. Baldus also provided 

tables that showed the race-of-the-victim effect to be most 

significant in cases involving intermediate levels of 

aggravation. In these cases, on average, white victim crimes 

were shown to be 20% more likely to result in the death penalty 

than equally aggravated black victim crimes. 

None of the figures mentioned above is a definitive 

quantification of the influence of the victim's race on the 

overall likelihood of the death penalty in a given case. 

Nevertheless, 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 

45 

 



  

victim crimes are likely to result in the penalty. When this 

figure is related to tables that classify cases according 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 factors supporting the death 

sentence. The Baldus study revealed an essentially rational 

system, in which high aggravation cases were more likely to 

result in the death sentence than low aggravation cases. As one 

would expect in a rational system, factors such as torture and 

multiple victims greatly increased the likelihood of receiving 

the penalty. 

There are important dimensions that the statistics cannot 

reveal. Baldus testified that the Georgia death penalty system 

is an extremely complicated process in which no single factor 

or group of factors determines the outcome of a given case. No 

46 

 



  

single petitioner could, on the basis of these statistics 

alone, establish that he received the death sentence because, 

and only because, his victim was white. Even in the mid-range 

of cases, where the race-of-the-victim influence is said to be 

strong, legitimate factors justifying the penalty are, by the 

very definition of the mid-range, present in each case. 

The statistics show there is a race-of-the-victim 

relationship with the imposition of the death sentence 

discernible in enough cases to be statistically significant in 

the system as a whole. The magnitude cannot be called 

determinative in any given case. 

The evidence in the Baldus study seems to support the 

Georgia death penalty system as one operating in a rational 

manner. Although no single factor, or combination of factors, 

will irrefutably lead to the death sentence in every case, the 

system in operation follows the pattern the legislature 

intended, which the Supreme Court found constitutional in 

Gregg, and sorts out cases according to levels of aggravation, 

as gauged by legitimate factors. The fundamental Eighth 

Amendment concern of Furman, as discussed in Gregg, which 

states that "there is no meaningful basis for distinguishing 

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 statute. 428 U.S. at 188. 

47 

 



  

Taking the 6% bottom line revealed in the Baldus figures 

as true, this figure is not sufficient to overcome the 

presumption that the statute is operating in a constitutional 

manner. In any discretionary system, 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 possibly even 

- compelled, by recent Supreme Court opinions in Sullivan v. 
  

  

Wainwright, U.S. , 78 L.Ed.2d 210 (1983) (denying 

stay of execution to allow evidentiary hearing on Eighth 

Amendment claim supported by statistics); Adams v. Wainwright, 
  

U.S. , 80 L.Ed.2d 809 (1984) (vacating stay); and 

Wainwright v. Ford, H.S. ; 82 L.BA,24 911 (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 

relied 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 912 (citing Sullivan and Adams). 
  

The petitioners in Sullivan, Adams, and Ford all relied on the 
  

study by Gross and Mauro of the Florida death penalty system. 

48 

 



  

The bottom line figure in the Gross and Mauro study indicated a 

race-of-the-victim effect, quantified by a "death odds 

multiplier," 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 Baldus 

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 Sullivan, 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 

49 

 



  

McCleskey relies. 

McCleskey's argument about the heightened influence of 

the race-of-the-victim factor in the mid-range of cases 

requires a somewhat different analysis. McCleskey's case falls 

within the range of cases involving 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 approximately 20% in the mid-range of 

cases. Some analysis of this 20% figure is appropriate. 

The 20% figure in this case is not analogous 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 1n the population. In contrast, the 20% 

disparity in this case does not purport to be an actual 

disparity. Rather, the figure reflects that the variables 

included in the study do not adequately explain the 20% 

disparity and that the statisticians can explain 

it only by assuming the racial effect. More importantly, 

Baldus did not testify that he found statistical 

significance in the 20% disparity figure for mid-range cases, 

50 

 



  

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 rationally 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%. 

Assuming arguendo, however, that the 20% disparity is an 
  

accurate figure, it is apparent that such a disparity 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 operating 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 

definition possible. It is simply not satisfactory to say that 

the racial effect operates in "close cases" and therefore that 

the death penalty will be set aside in "close cases." 

As discussed previously, the statistics 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 factor 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 

51 

 



  

are insufficient to show that McCleskey's sentence was 

determined by the race of his victim, or even that the race of 

his victim contributed to the imposition of the penalty in his 

case. 

McCleskey's petition does not surmount the threshold 

burden of stating a claim on this issue. Aside from the 

statistics, he presents literally no evidence that might tend 

to support a conclusion that the race of McCleskey's victim in 

any way motivated the jury to impose the death sentence in his 

case. 

Conclusion 
  

The Supreme Court has held that to be constitutional the 

sentencer in death sentence cases must have some measure of 

discretion. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. 
  

  

Florida, 428 U.85. 242 11976). The mandatory death sentence 

statutes were declared unconstitutional. Woodson vv. North 
  

Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 
  

  

325 (1976). 

The very exercise of discretion means that persons 

exercising discretion may reach different results from exact 

duplicates. 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 constitutional, and at the 

52 

 



  

same time hold a 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 difference. The discretion is narrow, focused 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 otherwise explained, and 

conclude that the different result was based on race alone. 

From a legal perspective, petitioner would argue that since the 

difference is not explained by facts which the social scientist 

thinks satisfactory to explain the differences, 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, profession, 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 factors. There are, in fact, no exact duplicates in 

capital crimes and capital defendants. The type of research 

submitted here tends to show which of the directed factors were 

effective, but is of restricted use in showing what undirected 

53 

 



  

factors control the exercise of constitutionally required 

discretion. 

It was recognized when Gregg was decided that the capital 

justice 

perfect 

Gregg 

system would not be perfect, but that it need not be 

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 
responsibility 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. However, one of society's most basic 
tasks is that of protecting the lives of its 
citizens and one of the most basic ways in which 
it achieves the task is through criminal laws 
against murder. 

VY. Georgia, ~ 428 0.8. 153, 226 (1976) (White, 
  

concurr ing). 

The plurality opinion of the Gregg Court noted: 

The petitioner's argument is nothing more than a 
veiled contention that Furman indirectly outlawed 
capital punishment by placing totally unrealistic 
conditions on its use. In order to repair the 
alleged defects pointed to by the petitioner, it 
would be necessary to require that prosecuting 
authorities charge a capital offense whenever 
arguably there had been a capital murder and that 
they refuse 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 

54 

Ney 

 



  

be permitted. Finally, acts of executive clemency 
would have to be prohibited. Such a system, of 
course, would be totally alien to our notions of 
criminal justice. 

Id. at 199 n.50 (opinion of Stewart, Powell, and Stevens, JJ.). 

Viewed broadly, it would seem that the statistical 

evidence presented here, assuming its validity, confirms rather 

than condemns 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 disparity based on the 

race of the victim tends to support the state's contention that 

the system is working far differently from the one which Furman 

condemned. In pre-Furman days, there was no rhyme or reason 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 

unconstitutional. 

The district court properly rejected this aspect of 

McCleskey's claim. 

INEFFECTIVE ASSISTANCE OF COUNSEL 

McCleskey contends his trial counsel rendered ineffective 

assistance at both guilt/innocence and penalty phases of his 

trial in violation of the Sixth Amendment. 

55 

 



  

Although a defendant is constitutionally entitled to 

reasonably effective assistance from his attorney, we hold that 

McCleskey has not shown he was prejudiced by the claimed 

defaults in his counsel'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 reasonableness of the attorney's 

performance. Strickland v. Washington, v.28. , 80 
  

L.Ed.2d 674 (1984). 

As to the guilt phase of his trial, McCleskey 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 witnesses the victims of the 

Dixie Furniture Store robbery; and (3) interview the State's 

ballistics expert. 

McCleskey demonstrates no prejudice caused by his 

counsel's failure to interview 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. 

56 

 



  

As to the robbery victims, McCleskey does not contend 

that an in-person interview would have revealed something their 

statements did not. He had an opportunity to cross-examine 

several of the robbery victims and investigating officers at 

McCleskey's preliminary hearing. The reasonableness of the 

attorney's investigation need not be examined because there 

was obviously no prejudice. 

The question 1s whether it was unreasonable not to 

subpoena the robbery victims as defense witnesses. McCleskey's 

attorney relied primarily on an alibi defense at trial. To 

establish this defense, the attorney put McCleskey on the 

stand. He also called several witnesses in an attempt 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 witnesses to testify as to which robber did 

the shooting. No prejudice can be shown by failing to subpoena 

witnesses, as a reasonable strategy decision. 

McCleskey's attorney could have reasonably prepared to 

cross-examine the State's ballistics expert by reading the 

expert's report. No in-person interview was necessary. See 

Washington V. Watkins, 655 F.24 1346, 1358. (5th Cir. 1981), 
  

gert. denied, 456 U.S. 949 (1982). The report was ‘in ' the 
  

prosecutor's file which the attorney reviewed and no contention 

57 

 



  

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 introduction of 

prior convictions which had been set aside. 

No character witnesses testified for McCleskey at his 

trial. At the State habeas corpus hearing McCleskey's attorney 

testified he talked with both McCleskey 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 a conflicting story. 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 role as fact finder 
to conclude that Counsel 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, implicit in that conclusion is the 

historical finding that the attorney's testimony was credible. 

  

See Paxton v. Jarvis, 735.7.24 1306, 1308 (11th Cir. 1984); Cox 

V. Montgomery, 718 P.24 1036 (llth Cir. 1983). This finding of 
  

58 

 



  

fact is entitled to a presumption of correctness. Based on the 

facts as testified to by the attorney, he conducted a 

reasonable investigation for character witnesses. 

As evidence of an aggravating circumstance 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 McCleskey 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 

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 

community. In support of this proposition, petitioner cites 

two district court opinions from outside circuits. Grigsby v. 
  

Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), hearing en banc 
  

ordered, No. 83-2113 B.A. (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 

59 

 



  

the merits of those opinions, they are not controlling 

authority for this Court. 

Because both jurors indicated they would not under any 

circumstances consider imposing the death penalty, they were 

properly excluded under Witherspoon v. Illinois, 391 U.S. 510 
  

(1968). See also Boulden v. Holman, 394 U.S. 478 (1969). Their 
  

exclusion did not violate petitioner's Sixth Amendment rights 

to an impartial, community-representative jury. Smith wv. 
  

Balkcom, 660 P.24:573, 582-83 (5th Cir. Unit B 11981), cert. 

denied, 459 U.S. 882 (1982); Spinkellink v. Wainwright, 578 
  

F.24 582, 593-94 (5th Cir. 1978), cert. denied, 440 U.S, 976 
  

(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 prosecution 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 unconstitutional under Sandstrom v. 
  

Montana, 442 U.S. 510 (1979). 

McCleskey objects to the following portion 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 

60 

 



  

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 panel   

opinions of this Circuit, Franklin v. Prancis, 720 P.24 1206 
  

{(1ith Cir. 1983), cert. granted, U.S. «81 L.E4d.24 
  

873 (1984), and ‘Tucker V. Prancis, 723 P.24 1504 (llth Cir.), 
  

on pet, for ren'g and reh'a en banc, 723 P.24. 1518 (lith Cir. 
  

1984). Even though the jury instructions in the two cases 

were identical, Franklin held that the language created a 
  

mandatory rebuttable persumption violative of Sandstrom while 
  

Tucker held that it created no more than a permissive inference 

and did not violate Sandstrom. Noting that the challenged 
  

portion of the instruction 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 pronouncement 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 

constitutionality of potentially burden-shifting instructions 

identical to the one at issue here. Davis v. Zant, 721 prP.24 
  

1478 (llth Cir. 1983), on pet for reh'g and reh'g en banc, 728 
  

61 

 



  

F.24 492 (11th Cir. 1984); Drake v. Francis, 727 F.24 990 (11th 
  

Cir.), on pet. for reh'g and for reh's en banc, 727 v.24 1003 
  

{11th Cir. 1934): Tucker v. Francis, 723 P.2d 1504 (11th Cir.), 
  

on pet, for reh'a and reh'g en banc, 723 P.2d 1518 (11th Cir. 
  

1984). The United States Supreme Court has heard oral argument 

in Franklin v. Francis. 53 U.S.L.W. 3373 (U.S. Nov, 20, 1984) 
  

[No. 83-1590]. 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 harmless, the court must be able to 

declare a belief that it was harmless beyond a reasonable 

doubt." Chapman v. California, 386 U.S. 18, 24 (1967). More 
  

recently, the Supreme Court has divided over the issue of 

whether the doctrine of harmless error is ever applicable to 

burden-shifting presumptions violative of Sandstrom. Reasoning 
  

that "[a]n erroneous presumption on a disputed element of the 

crime renders irrelevant the evidence on the issue because the 

jury may have relied upon the presumption rather than upon that 

evidence," a four-justice plurality held that one of the two 

tests for harmless error employed by this Circuit -- whether the 

evidence of guilt is so overwhelming that the erroneous 

instruction could not have contributed to the jury's verdict -- 

62 

 



  

is inappropriate. Connecticut v. Johnson, 460 U.S. 73, 85-87 
  

(1983). The fifth vote to affirm was added by Justice 

Stevens, who concurred on jurisdictional grounds. Id. at 88 

(Stevens, J., concurring in the judgment). Four other justices, 

however, criticized the plurality for adopting an "automatic 

reversal" rule for Sandstrom error. Xd. at 98 (Powell, J., 
  

dissenting). The Supreme Court has subsequently reviewed 

another case in which harmless error doctrine was applied to a 

Sandstrom violation. The Court split evenly once again in 
  

affirming without opinion a Sixth Circuit decision holding that 

"the prejudicial effect of a Sandstrom instruction is largely a   

function of the defense asserted at trial." Engle v. Koehler, 
  

707 P.24 241, 246 (6th Cir. 1983), aff'd by an equally divided 
  

court, U.S. ¢ 80 L.B4.24 1 (19834) (per curiam). "In 
  

  

Engle, 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 

constitute harmless error. 1d. Until the Supreme Court makes a 

controlling decision on the harmless error question, we continue 

to apply the standards propounded in our earlier cases. 

Since Sandstrom was decided in 1979, this Circuit has 
  

analyzed unconstitutional burden-shifting instructions to 

determine whether they constituted harmless error. See, e.g., 
  

63 

 



  

Mason Vv. Balkcom, 669 P.24 222, 227 (5th Cir. Unit B 1982). In 
  

Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 
    

103 S.Ct. 1276 (1983), the Court identified two situations in 

which an unconstitutional burden-shifting instruction might be 

harmless. 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.24 at 1342; Mason, 669 P.24 at 227. 1In 

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 

evidence of guilt renders a Sandstrom violation harmless. See 
  

Jarrell vv. Ballcom, 735 F.24 1242, 1257 (llth Cir. 1984); 
  

BLooks v. Francis, 716 7.24 780, 793-94 (llth Cir. 1983), on 
  

Pet. for teh'qg and for reh'd en banc, 728. F.24 1358 (llth Cir. 
  

1984); Spencer v. Zant, 715 F.28 1562, 1578 (ilth Cir. 1983), 
  

on pet. for reh'g and for reh'g en banc, 729 F.2d 1293 (1lth 
  

Cir. 1934). 

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.24 at 1342, This Circuit has 

adopted this rationale to find a Sandstrom violation 
  

harmless. See Drake v. Francis, 727 F.2d 990, 999 (llth Cir.), 
  

on pet.for reh'g and for reh'g en banc, 727 F.2d 1003 (lth 
  

64 

 



  

Cir. 1984): Collins v. Francis, 728 v.24 1322, 1330-31 (11th 
  

Cir. 1984), pet. for reh'g en banc denied, 734 F.2d 1481 (llth 
  

a] 

Cir. 1984). There is some indication that even the plurality in 

Connecticut v. Johnson would endorse this type of harmless error 
  

in limited circumstances: 

[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 defendant may in some cases admit 
that the act alleged by the prosecution was 
intentional, thereby sufficiently reducing the 
likelihood that the jury applied the erroneous 
instruction as to permit the appellate court to 
consider the error harmless. 

  

460 U.S. at 87 (citations omitted). 

Our review of the record reveals that the Sandstrom 
  

violation in this case is rendered harmless error under this 

second Sede. 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 elements 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 provocation. 

Id. The erroneous instruction on intent, therefore, involved an 

essential element of the criminal offense charged, and the state 

was required to prove the existence of that element beyond a 

65 

 



  

reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The 
  

question therefore becomes whether McCleskey conceded the 

element of intent by presenting a defense that admits that the 

act alleged was intentional. 

Of course, a defendant in a criminal trial may rely 

entirely on the presumption of innocence and the State's burden 

of proving every element of the crime beyond a reasonable doubt. 

Connecticut v. Johnson, 460 U.S. at B87 n.lé6. In such a case, 
  

determining whether a defendant had conceded the issue of intent 

might well be impossible. The record reveals, 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 summarizes his alibi defense: 

Q. Were you at the Dixie Furniture Store that day? 

A. «NO, 

Q. Did you shoot anyone? 

A, No, I.4idn'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 

credibility of the eyewitness identifications that pinpointed 

66 

 



  

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 arguments were consistent with 

the alibi testimony offered by McCleskey himself, the jury chose 

to disbelieve that testimony and rely instead on the testimony 

of eyewitnesses and the other participants in the robbery. 

We therefore hold that in the course of asserting his 

alibi defense McCleskey effectively conceded the issue of 

intent, thereby rendering the Sandstrom violation harmless 
  

beyond a reasonable doubt. 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 

rendered 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 overwhelming evidence of an intentional killing 

and where the defendant raises a defense of nonparticipation in 

the crime rather than lack of mens rea, a Sandstrom violation 
    

On an intent instruction such as the one at issue here is 

67 

 



  

harmless beyond a reasonable doubt. See Collins v. Francis, 
  

728 F.24 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 shooting, 

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. 

CONCLUSION 

The judgment of the district court in granting the 

petition for writ of habeas corpus is reversed and the petition 

is hereby denied. 

REVERSED AND RENDERED. 

68 

 



  

TJOFLAT, Circuit Judge, concurring: 

I concur in the court's opinion, though I would approach the 

question of the constitutional application of the death penalty 

in Georgia somewhat differently. I would begin with the 

established proposition that Georgia's capital sentencing model 

is facially constitutional. It contains the safeguards necessary 

to prevent arbitrary and capricious decision making, including 

decisions motivated by the race of the defendant 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 safeguards 

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 jurors. In Georgia this 

means that a representative portion of blacks will be on the 

grand jury. 

The same safeguards come into play 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 victim. 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 particular class of persons, such 

as blacks, from jury service. See, e.g., Willis v. Zant, 720 
    

F.2d 1212 11th Cir, 1983), cert. denied, U.S. v:164 S.Ct, 
  

3548 (1984). 

If the sentencer is the jury, as it is in Georgia (the trial 

judge being bound by the jury's recommendation), it can be 

instructed 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 assignment of error or in the context of 

proportionality review. And, if the court affirms his death 

sentence, he can renew his challenge in a petition for rehearing 

or by way of collateral attack. 

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 

corpus review--should be considered. For they provide still 

another layer of safeguards 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, I 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 constitutionally infirm, the data is 

irrelevant. In summary, petitioner's data, which shows nothing 

more than a disproportionate sentencing results, is not probative 

of 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. 

 



  

VANCE, Circuit Judge, concurring: 

Although I concur in Judge Rooney's opinion, 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 amendment equal protection 

claims of the kind presented herel, 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, caprice or whim. An 

equal protection inquiry is very different. It centers not 

on systemic irrationality, but rather the independent evil 

of intentional, 1individious discrimination against given 

individuals. 

I am conscious of the dicta in the various Furman 

opinions which note with disapproval the possibility that 

racial discrimination was a factor in the application of the 

death penalty under the Georgia and Texas statutes then in 

effect. To my mind, however, such dicta merely indicates 

the possibility that a system that permits the exercise of 

standardless discretion not only may be capricious, but may 

1 I have not addressed the due process analysis employed 
by the district court because the petitioner did not rely 
on it in his brief. 

 



  

give play to discriminatory motives which violate equal 

protection standards as well. Whether a given set of facts 

make out an eighth amendment claim of systemic irrationality 

under Furman is, therefore, a question entirely independent 

of whether those facts establish deliberate discrimination 

violative of the equal protection clause. 

I am able to concur because in neither the case before 

us nor in any of the others presently pending would the 

difference influence the outcome. As Judge Roney points 

out, petitioner's statistics are insufficient 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 explicable 

-- albeit impermissible -- fashion. 

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 reasons stated in Chief Judge 

Godbold's dissent, the facts surrounding Evans’ testimony 

did constitute a Giglio violation. I agree with the 

majority, however, that any error was harmless beyond a 

reasonable doubt. 

I also join Judge Anderson's special concurrence on 

the "Constitutional Application of the Georgia Death 

Penalty." 

 



  

ANDERSON, Circuit Judge, concurring specially: 

I join Judge Rooney's opinion for the majority, and write 

separately only to emphasize, with respect to the Part entitled 

"Constitutional Application of Georgia's Death Penalty," 

that death is different in kind from all other criminal sanc- 

tions, Woodson v. North Carolina, 428 U.S. 280, 305 (1976). 
  

Thus, the proof of racial motivation required 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 influenced by race. The Supreme 

Court's Eighth Amendment jurisprudence has established a consti- 

tutional supervision over the conduct of state death penalty 

systems which is more exacting than that with respect to the 

criminal justice system generally. Woodson v. North Carolina, 
  

14. at 305 ("Because of that qualitative difference, there is a 

corresponding difference in the need for reliability 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 evidentiary showing would be required. Judge 

Roney's opinion demonstrates with clarity why the evidentiary 

showing in this case is insufficient. 

 



  

GODBOLD, Chief Judge, dissenting in part, and concurring in part:* 

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 robbery. Evans also testified that he had 

pending against him a [federal] escape charge, that he had not 

asked the prosecutor to "fix" this charge, and that the 

prosecutor had not promised him anything to testify. 

At the state habeas hearing the following 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 1n exchange for your testimony? 

The witness: No, 1 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 nimself, speak a word for me. That was what the 
Detective told me. 

By. Mr, Stroup: 

QO: Tne Detective told you that he would speak a word for 
you? 

A: Yeah. 

Qo: That was Detective Dorsey? 

A: Yeah. 

State Habeas Transcript at 122. 

  

X i : : y 
I cissent on only the Giglio issue. I concur in Judge Roney's 

opinion on all other issues, 

 



  

The district court granted habeas relief to McCleskey 

uwnder Giglio v. U.S., 405 U.8. 150 31 L.Ed. 28 104 (1971). 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 subsidiary findings: (1) that Evans’ 

testimony was highly damaging; (2) that "the jury was clearly 

left with the inpresston that Evans was unconcerned about any 

charges which were pending against him and that no promises had 

been made which would affect his credibility." id. at 381; (3) 

that at petitioner's state habeas hearings Evans testified "that 

one of the detectives investigating 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 

McCleskey's trial. 

The en banc court seems to me to err on several grounds. 

It blurs the proper application 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 testimony." Smith v. Kemp, 715 F.28 1459, 14467   

(11th Cir. 1983). Giglio reaches the informal understanding as 

a 
KS 

 



  

well as the formal. The point is, even if the dealings are 

informal, 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 witness in giving 

testimony? The verbal undertaking made in this instance by an 

investigating 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 benefit too marginal. 

Of course, the possible benefit to a potential witness can be 

so minimal that a court could find as a matter of law no Giglio 

violation occurred. A trivial offer is not enough. The subject 

matter of the offer to Evans was substantial, or at least a jury 

was entitled to consider it so. After McCleskey was tried and 

convicted, the federal charge was dropped. 

Third, the court concludes there was no reasonable 

likelihood that Evans' testimony affected the judgment of the 

jury. Co-defendant Wright was the only eyewitness. He was an 

accomplice, thus his testimony, unless corroborated, was 

insufficient to establish that McCleskey was the triggerman. 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 Wright, but Wright's 

testimony on this subject could not be used to corroborate 

Wright's otherwise insufficient accomplice testimony. Testimony 

of an accomplice cannot be corroborated by the accomplice's own 

testimony. 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 McCleskey "confessed" 

to him, is the corroboration for the testimony of the only 

eyewitness, Wright. And that eyewitness gave the only direct 

evidence that MeClashey 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: 

Warren McCleskey has presented convincing 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, characterized as "far and away the most complete 

and thorough analysis of sentencing" ever carried out, ! demon- 

strates that in Georgia 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 evidence "confirms rather 

than condemns the system" and that it fails to support a consti- 

tutional challenge. I disagree. In my opinion, this disturbing 

evidence can and does support a constitutional claim under the 

Eighth Amendment. In holding otherwise, the majority commits two 

critical errors: it requires McCleskey to prove that the State 

intended to discriminate against him personally and it under- 

estimates what his evidence actually did prove. I will address 

each of these concerns before comment ing briefly on the validity 

of the Baldus 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 administers the death 

penalty in a way that discriminates on the basis of race. The 

district court opinion treated this argument as one arising under 

the Fourteenth Amendment? and explicitly rejected the peti- 

tioner's claim that he could raise the argument under the Eighth 

Amendment, as well. The majority reviews each of these possi- 

bilities and concludes that there is little difference in the 

proof necessary to prevail under any of the theories: whatever 

the sonetitntional Source of the challenge, a petitioner must 

show a disparate impact great enough to compel the conclusion 

that purposeful discrimination permeates the system. These 

positions reflect a misunderstanding of the nature of an Eighth 

Amendment claim in the death penalty context: the Eighth 

Amendment prohibits the racially discriminatory application of 

the death penalty and McCleskey does not have to prove intent to 

discriminate in order to show that the death penalty is being 

applied arbitrarily and capriciously. 

A. The Viability of an Eighth Amendment 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 application of that statute. 

The district court most certainly erred on this issue. Applying 

the death penalty in a racially discriminatory manner violates 

the Eighth Amendment. Several members of the majority in Furman 

v. Georgia, 408 U.S. 238, 245-57, 310, 364-65 (1972) (concurring 
  

 



  

.opinions of Douglas, Stewart, Marshall, JJ.), relied in part on 

the disproportionate impact of the death penalty on racial 

minorities in concluding that the death penalty as then. adminis- 

tered 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 

process 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, U.Sn , 103 8. Ct..2733 (1983) (listing race of 
  

defendant as a factor "constitutionally impermissible or totally 

irrelevant to the sentencing process"). There is no legitimate 

basis in reason for relying 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 violation of the Eighth Amendment. 

See Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., 
  

concurring) ("the high service rendered by the 'cruel and 

unusual' punishment 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. 
  

153, 195 n.46 (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 

operation of a state's entire sentencing structure in determining 

whether it inflicted sentences in violation of the Eighth 

Amendment. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 112 
  

(1982) (capital punishment must be imposed "fairly, and with 

reasonable consistency, or not at all"); Godfrey v. Georgia, 446 
  

U.S. 420 (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 capri- 

cious infliction of the death penalty."). 

Without this systemic perspective, review of sentencing 

would be extremely limited, for the very idea of arbitrary and 

capricious sentencing takes on its fullest meaning in a compara- 

tive context. A non-arbitrary sentencing structure must provide 

some meaningful way of distinguishing between those who receive 

the death sentence and those who do not. Godfrey v. Georgia, 446 
  

U.5. 420, 433 (1980); Purman v. Georaia, 408 U.S. 238, 313 (1972 
  

(White, J., concurring). Appellate proportionality review is not 

needed in every case but consistency is still indispensable to a 

3 The import of any single constitutional sentencing system. 

sentencing decision depends less on the intent of the decision- 

maker than on the outcome in comparable cases. Effects 

evidence 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, U.S. ,5103.8, Ck. 2733, 2741 (1983); 
  

Lockett v. Ohio, 438 U.S. 586, 605 (1978); Woodson v. North 
  

  

Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). Monitor- 
  

ing patterns of sentences offers an especially effective way to 

detect breaches of that duty. Indeed, because the death penalty 

retains the need for discretion to ke individualized judgments 

while at the same time heightening the need for fairness and 

consistency, Eddings v. Oklahoma, supra, at 110-12, patterns of 
  

decisions may often be the only acceptable basis of review. 

Discretion hinders inquiry into intent: if unfairness and 

inconsistency are to be detected even when they are not over- 

whelming or obvious, effects evidence must be relied upon. 

Insistence on systemwide objective standards to guide 

sentencing reliably prevents aberrant decisions without having to 

probe the intentions of juries or other decisionmakers. Gregg 

v. Georgia, supra, at 198; Woodson v. North Carolina, supra, at 
  

  

303 (objective standards necessary to "make rationally reviewable 

the process for imposing the death penalty"). The need for the 

State to constrain the discretion of juries in the death penalty 

area is unusual by comparison to other areas of the law. It den- 

onstrates the need to rely on systemic controls as a way to 

reconcile discretion and consistency; the same combined objec- 

tives argue for the use of effects evidence rather than waiting 

for evidence of improper motives in specific cases. 

 



  

Objective control and review of sentencing Strudiures 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 

4 
to the result rather than the actual motives. In Westbrook v. 

  

Zant, 704 F.2d 1487, 1504 (11th Cir. 1983), this Court held that, 

even though a judge might not properly instruct a sentencing jury 

regarding the proper definition of aggravating circumstances, the 

"uncontrolled discretion of an uninstructed jury" can be cured by 

review in the Georgia Supreme Court. The state court must find 

that the record shows the presence of statutory aggravating 

factors that a jury could have relied upon. If the factors are 

present in the record it does not matter that the jury may have 

misunderstood the role of aggravating circumstances. If the 

State can unintentionally succeed in preventing arbitrary and 

capricious 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 Vv. Georgia, 408 
  

Uu.s. 238, 253 (1972) (Douglas, J., concurring) ("We cannot say 

that these defendants were sentenced to death because they were 

black. Yet our task is not restricted to an effort to divine 

what motives impelled these death penalties."). The majority's 

 



  

. holding on this issue conflicts with every other constitutional 

limit on the death penalty. After today, in this Circuit 

arbitrariness based on race will be more difficult to eradicate 

than any other sort of arbitrariness in the sentencing system. 

II. PROVING DISCRIMINATORY EFFECT 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 victims.® It then 

employed several statistical techniques, including regression 

analysis, to isolate the amount of that disparity attributable to 

both racial and non-racial factors. 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 number 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 

undoubtedly shows a disparate impact. Regression 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 offers a type of effects 

evidence that approaches evidence of intent, no matter what level 

of disparity is shown. For example, 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 common method of proving 

discriminatory effect in employment discrimination sults, 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 P.2d4 1249 (D.C, Cir. 1984); Wade v. 
  

Mississippi Cooperative Extension Service, 528 F.2d 508 (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 constitutional challenge, under any reasonable defini- 

tion of intent the Baldus Study provides sufficient proof. The 

majority ignores the fact that McCleskey has shown discriminatory 

intent at work in the sentencing system even though he has not 

pointed to any specific act or actor responsible for discriminat- 

9 ing against him in particular. 

 



  

The law recognizes that even though intentional discrimi- 

nation will be difficult to detect in some situations, its 

workings are still pernicious and real. Rose Vv. Mitchell, 443 
  

U.S. 545, 559 (1978). Under some circumstances, therefore, proof 

of discriminatory effect will be an important first step in 

proving intent, Crawford v. Board of Education, 458 U.S. 527 
  

(1982), and may be the best available proof of intent. 

Washington v. Davis, 426 U.S. 229, 241-42 (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 (1979). 
  

For instance, proof of intentional discriminaticn-zn the 

selection of jurors has traditionally depended on showing. -wvacial 

effects. See Castaneda v. Partida, 430 U.S. 482 (1977); - 
  

Turner v. Fouche, 396 U.S. 346 (1970); Cibson v. Zant, 70: P.24 
  

  

1543 {11th Cir. 1983). This is because the discretion aliwed to 

jury commissioners, although legitimate, could easily be sed to 

mask conscious or unconscious racial discrimination. The ‘upreme 

Court has recognized that the presence of this sort of di: .retion 

calls for indirect methods of proof. Washington v. Davis, 426 
  

U.S. 229, 241-42 (1976); Arlington Heights v. Metropolit. 
  

Housing Corp., 429 U.S. 252, 266 n.13 (1977). 
  

This Court has confronted the same problem in an -alogous 

setting. In Searcy v. Williams, 656 F.2d 1003, 1008-09 {5th Cir. 
  

1981), aff'd sub nom. Hightower v. Searcy, 455 U.S. 984 (1982), 
  

the court overturned a facially valid procedure for selecting 

school board members because the selections fell into an ver- 

whelming pattern of racial imbalance. The decision rest~d in 

 



  

. part on the discretion inherent in the selection process: "The 

challenged application of the statute often involves discretion 

or subjective criteria utilized at a crucial point in the 

decision-making 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 discretion. Defendants cannot realistic- 

ally hope to find direct evidence of discriminatory intent. This 

  

is precisely the situation envisioned in Arlington Heights, where 

the Court pointed out that "[s]ometimes a clear Sattetn, 

unexplainable on grounds other than race, emerges from the effect 

of the state action even when the governing legislation appears 

neutral on its face. .. . The evidentiary inquiry is then 

relatively easy." 429 U.S. at 266, 

As a result, evidence of discriminatory effects presented 

in the Baldus Study, like evidence of racial disparities in the 

11 excludes composition of jury pools! and in other contexts, 

every reasonable inference other than discriminatory intent at 

work in the system. This Circuit has acknowledged on several 

occasions that evidence of this sort could support a constitu- 

tional challenge. Adams v. Wainwright, 7092 F.2d 1443, 1449 (llth 
  

Cir. 1983); Smith v, Balkcom, 660 P.24 573 (5th Cir, Unit B 
  

1981), modified in part, 671 F.2d 858, cert. denied, 459 U.S. 882 
  

  

(1982); Spinkellink, supra, at 614. 
  

10 

 



  

A petitioner need not exclude all inferences 

other than discriminatory intent in his or her particular case. 1? 

Yet the majority improperly stresses this particularity require- 

ment and interprets it so as to close a door left open by the 

Supreme court.l3 Tt would be nearly impossible to prove through 

evidence of a system's usual effects that intent must have been a 

factor in any one case; effects evidence, in this context, 

necessarily deals with many cases at once. Every jury discrimi- 

nation charge would be stillborn if the defendant had to prove by 

direct evidence that the jury commissioners 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 under 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, neverthe- 

less concedes that despite the particularity requirement, 

evidence of the system's effects could be strong enough to 

demonstrate intent and purpose. 14 Its subsequent 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 

decision in Georgia. Yet this fact alone does not reveal a 

"rational" system at work (p. 46). The statistics not only 

11 

 



  

show that the number of aggravating factors is a significant 

influence; they also point to the race of the victim as a factor 

of considerable influence. Where racial discrimination contrib- 

utes to an official decision, the decision is unconstitutional 

even though discrimination was not the primary motive. Personnel 
  

Administrator v. Feeney, 442 U.S. 256, 279 (1979). 
  

Neither can the racial impact be explained 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 {nctugs oie discre- 

tion to consider race: the jury may consider any proper aggra- 

vating factors, but it may not consider the race of the victim as 

an aggravating factor. Zant v. Stephens, N.S: 103 8. 
  

Ct. 2741 (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, showing that the pattern of sentences can only be 

15 overcomes explained by assuming a significant racial influence, 

whatever presumption exists. 

The majority's effort to discount the importance 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 (20 percent) than in all cases combined (6 

percent). The majority states that racial impact in a subset of 

12 

 



  

cases cannot provide the basis for a systemwide challenge. 

However, there is absolutely no justification for such a claim. 

The fact that a system mishandles a sizeable subset of cases is 

persuasive evidence that the entire system operates inproperly: 

gt. Connecticut v. Teal, 457 U.S. 440 (1984) (written test 
  

discriminates against some employees); Lewis Vv. City of New 
  

Orleans, 415 U.S. 130 (1974) (statute infringing on First Amend- 

ment interests in some cases). A system can be applied arbitrar~ 

ily and capriciously even if it resolves the obvious cases in a 

rational manner. Admittedly, the lack of a precise definition of 

medium aggravation cases could lead to either an ousbstridnent or 

understatement of the racial influence. Accepting, however, that 

the racial factor is accentuated to some degree in the middle 

range of cases, 1® the evidence of racial impact must be taken all 

the more seriously. 

Finally, the majority places undue reliance on several 

recent Supreme Court cases. It argues that Ford v. Strickland, 
  

  

  

U.S. , 52°U0.8.L.¥. 3873 (1934), Adams V. Wainwright, 

B.5. , 30 4.24.24 309 (1984), and Sullivan v. Wainwright, 

0.5. , 78 L.Bd. 24 210 £1983), support its conclusion that 
r—— 

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 guidance at all regarding the legal standards 

applicable to these studies,’ ijt is clear that the Court 

considered the validity of the studies rather than their suffi- 

ciency. In Sullivan, the Supreme Court refused to stay the 
  

execution simply because it agreed with the decision of this 

13 

 



  

Court, a decision based on the validity of the study alone.l8 

sullivan v. Wainwright, 721 P.24 316 (11th Cir. 1983) (citing 
  

prior cases rejecting statistical evidence because it did not 

account for non-racial explanations of the effects). As the 

majority mentions, the methodology of the Baldus Study easily 

surpasses that of the earlier studies involved in those cases. 

Thus, the Baldus Study offers a convincing explanation of 

the disproportionate effects 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 

evidence of intent is practically impossible to shialh, It 

strains the imagination to believe that the significant influence 

on sentencing left unexplained by 230 alternative factors is 

random rather than racial, especially in a state with an estab- 

lished history of racial discrimination. Turner Vv, Fouche, 
  

supra; Chapman v, King, 154 P.24 460 (5th .Cir.), cert. denied, 
  

  

327 U.S. 800 (1945). The petitioner has certainly presented 

evidence of intentional racial discrimination at work in the 

Georgia system. Georgia has within the meaning of the Eighth 

Amendment applied its statute arbitrarily and capriciously. 

111. THE VALIDITY OF THE BALDUS STUDY 

The majority does not purport to reach the issue of 

whether the Baldus Study reliably proves what it claims to prove. 

However, the majority does state that the district court's 

findings regarding the validity of the study might foreclose 

habeas relief on this issue. Moreover, the majority opinion in 

14 

 



  

several instances questions the validity of the study while 

claiming to be interested 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 misconception 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 simply point to flaws in a statistical analysis and conclude 

that it is completely unreliable 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 proposi- 

tion that it was meant to support. Eastland v. Tennessee Valley 
  

Authority, 704 F.2d 613 (llth Cir. 1983), cert. denied, 104 S.Ct. 
  

  

1415 (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 description. For 

instance, the "mismatches" in data entered once for cases in the 

Procedural 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 too much 

discretion. But most of the alleged "mismatches" resulted from 

intentional improvements in the coding techniques and the 

remaining errorsl9 were not large enough to affect the results. 

15 

 



  

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 20; penalty trial 

information was unavailable in the same percentages of cases. ?l 

The relatively small amount of missing data, combined with the 

large number 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 perfec- 

tion in order for courts to treat them as competent evidence. 

Trout v. Lehman, 702 F.24 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 statistical 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 contract it or leave it unchanged. The 

multicollinearity problem is a problem of notable proportions 

that nonetheless did not increase the size of the race-of-the- 

victim factor.?22 Ideally the independent variables in a regres- 

sion analysis should not be related to one another. If one 

independent variable merely serves as a proxy for another, the 

model suffers from "multicollinearity." That condition could 

either reduce the statistical significance of the variables or 

distort their relationships to one another. Of course, to the 

extent that multicollinearity reduces statistical significance it 

16 

 



  

Sugsests that the racial influence would be even more certain if 

‘the multicollinearity had not artificially depressed the vari- 

able's statistical significance. As for the distortions in the 

relationships between the variables, eS perts for the petitioner 

explained that multicollinearity tends to dampen the racial 

effect rather than enhance it.23 

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 misunderstand 

the nature of this study or of regression analysis generally. In 

several related criticisms, it found that any of the models 

accounting for less than 230 independent variables were com- 

pletely 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, 371), and that the models were not sufficiently 

predictive to be relied upon in light of their low RZ value (580 

F. Supp. at 361) . 24 The majority implicitly questions the 

validity of the Baldus Study on several occasions when it adopts 

25 pa proper understanding of the first two of these criticisms. 

statistical 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 

17 

 



  

better able it was to estimate the proper influence of non-racial 

factors. But in statistical models, bigger is not always better. 

After a certain point, additional independent variables become 

correlated with variables already being considered and distort or 

suppress their influence. 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 models. 

The other two criticisms mentioned earlier spring from a 

single source -- the misinterpretation of the R? measurement. 2® 

The failure of the models to capture every nuance ot eviry case 

was an inevitable but harmless failure. Regression analysis 

accounts for this limitation with an R? measurement. As a 

result, it does not matter that a study fails to consider every 

nuance of every case because random factors (factors that 

influence the outcome in a sporadic and unsystematic way) do not 

impugn the reliability of the systemwide factors already identi- 

fied, including race of the victim, Pailure to consider extra 

factors becomes a problem only where they operate throughout the 

2 is inappropriately low. system, that is, where R 

The district court did £ind that the RZ of the 230-vari- 

able study, which was nearly .48, was too low.27 But an R? of 

that size is not inappropriately low in every context.28 The RZ 

measures random factors unique to each case: in areas where such 

factors are especially likely to occur, one would expect a low 

R2, As the experts, the district court and the majority have 

pointed out, no two death penalty cases can be said to be exactly 

18 

 



  

alike, and it is especially unlikely for a statistical seul, Los 

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. 22 

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 erroneous. United States v. Gypsum Co., 
  

333 U.S. 364, 395 (1948). This statistical analysis, while im- 

perfect, is sufficiently complete and reliable to SeEve as 

competent evidence to guide the court. Accordingly, I would 

reverse the judgment of the district court with regard to the 

validity of the Baldus Study. 1I 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 remaining 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 harmless. 

19 

 



  

It is by no means certain that an error of this sort can 

be harmless. See Connecticut v. Johnson, u.s. 7.74 LEQ. 
  

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 evidence that 

disputes the prosecution's case on that point. The jury could 

find that the prosecution had failed to dispel all reasonable 

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 

reasonable. juror as to the existence of criminal intent, See 

Lamb v. Jernigan, 683 F.2d 1332, 1342-43 (13th Cir. 1982) ("no 
  

reasonable juror could have determined ... that appellant acted 

out of provocation or self-defense,” therefore error was harm- 

less). 

The majority states that the raising of an alibi defense 

does not automatically render a Sandstrom violation harmless. It 
  

concludes, however, that the raising of a nonparticipation 

defense coupled with "overwhelming evidence of an intentional 

killing" will lead to a finding of harmless error. The 

majority's position is indistinguishable from a finding of 

harmless error based solely on overwhelming evidence.30 since a 

defendant normally may not relieve the jury of its 

responsibility to make factual 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 

20 

 



  

no possible 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 majority 

that no juror, based on any reasonable interpretation of the 

facts, could have had a reasonable doubt regarding intent. 

several factors in this case bear on the issue of intent. 

The shooting did not occur at point-blank range. Furthermore, 

the officer was moving at the time of the shooting. On the basis 

of these facts and other circumstances of the shooting, a juror 

could have had a reasonable doubt as to whether the person firing 

‘the weapon intended to kill. While the majority dismisses this 

possibility as "mere speculation," the law requires an appellate 

court to speculate about what a reasonable juror could have 

concluded. Sandstrom v. Montana, 442 U.S. 510 (1979): United 
  

States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) {en 
  

banc), aff'd on other grounds, 103 S.Ct. 2398 (1983). Therefore, 
  

the judgment of the district court should be reversed on this 

ground, as well. 

21 

 



  

lrhis was the description given at trial by Dr. Richard 

Berk, member of a panel of the National Academy of Sciences 

charged with reviewing all previous research on criminal sentenc- 

ing issues in order to set standards for the conduct of such 

research. 

2phe district court felt bound by precedent to analyze the 

claim under the equal protection 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. 

3The Supreme Court in Pulley v. Harris, ___ U.S. __ 70 

L.Ed.2d 29 (1984), emphasized the importance of factors other 

than appellate proportionality review that would control jury 

discretion and assure that sentences would not fall into an 

arbitrary pattern. The decision in Pulley deemphasizes the 

importance of evidence of arbitrariness in individual 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 dispro- 

portionality in a single sentence. : 

4 ockett v. Ohio, 438 U.S. 586 (1978), and other cases 
demonstrate that the actual deliberations of the sentencer are 

relevant under the Eighth Amendment, for mitigating factors must 

have their proper place in all deliberations. But the suffi- 

ciency of intent in proving an Eighth Amendment violation does 

not imply the necessity of intent for all such claims. 

SThe only Fifth or Eleventh Circuit cases touching on the 

issue of discriminatory intent under the Eighth Amendment appear 

to be inconsistent with the Supreme Court's approach and there- 

fore wrongly decided. The court in Smith v. Balkcom, 660 F.2d 

573, 534 {5th Cir, Unit B 1981), modified, 671 F.2d 858 (1982), 

stated that Eighth Amendment challenges based on race racuire a 

showing of intent, but the court reached this conclusion because 

it wrongly believed that Spinkellink v. Wainwright, 578 F.24 582 

(5th cir. 1978), compelled such a result. The Spinkellink court 

never reached the question 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 3. The 

Smith court cites to a portion of the Spinkellink opinion dealing 

with equal protection arguments. 578 F.2d at 6:4 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 habeas 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 

  

  

  

  

22 

 



  

course, to the extent these cases attempt to foreclose Eighth 

Amendment challenges of this sort or require proof of parti- 

cularized intent to discriminate, they are inconsistent with the 

Supreme Court's interpretation of the Eighth Amendment. Cf. 

Gates v. Collier, 501 F.2d 1291, 1300-01 (5th Cir. 1974) “{pro- 

hibition against cruel and unusual punishment nis not limited to 

specific acts directed at selected individuals"). 

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. 

7in one of the largest of these models, the one focused 

on by the district court and the majority, the statisticians used 

230 different independent variables (possible influences on the 

pattern of sentencing), including several different aggravating 

and many possible mitigating factors. 

8see part I, supra. Of course, proof of any significant 

racial effects is enough under the Eighth Amendment, for a 

requirement of proving large or pervasive effects is tantamount 

to proof of intent. 

9The same factors leading to the conclusion 

that an Eighth Amendment claim does not require proof of intent 

militate even more strongly against using too restrictive an 

understanding of intent. 

107he majority distinguishes the jury discrimination 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 digparities are 

to be considered, then the court should employ the actual (and 

overwhelming) eleven-to-one differential between white victim 

cases and black victim cases. The percentage figures presented 

by the Baldus Study are really more reliable than "actual" 

disparities because they control for possible non-racial factors. 

llynited States v. Texas Educational Agency, 579 F.2d 910 

(5th Cir. 1978), cert. denied, 443 U.S. 915 (1979), involving a 

segregated school system, provides another example of effects 

evidence as applied to an entire decisionmaking system. 

  

127he particularity requirement has appeared sporadically 

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 Smith v. Balkcom, supra. 

13phe dissenting opinion of Justice Powell in Stephens v. 

Kemp, ~~ U.8. __, 78 L.Ed.2d 370, 372 (1984), does not under- 

mine the clear import of cases such as the jury discrimination 

cases. For one thing, a dissent from a summary order does not 

23 

 



  

have the precedential weight of a fully considered opinion of the 

Court. For another, the Stephens dissent considered the Baldus 

Study as an equal protection argument only and did not address 

what might be necessary to prove an Eighth Amendment violation. 

  

ldyhile 1 agree with Judge Anderson's observation that 

"the proof of racial motivation required in a death case...would 

be less strict than that required in civil cases or in the 

criminal justice system generally," I find it inconsistent with 

his acceptance of the majority outcome. The "exacting" 

constitutional supervision over the death penalty established by 

the Supreme Court compels the conclusion that discriminatory 

effects can support an Eighth Amendment challenge. Furthermore, 

the majority's evaluation of the evidence in this case is, if 

anything, more strict than in other contexts. See note 10, 

supra. 

15rhe racial influence operates in the average case and is 

therefore probably at work in any single case. The majority 

misconstrues the nature of regression analysis when it says that 

the coefficient of the race-of-the-victim factor represents the 

percentage of cases in which race could have been a factor (p. 

43). That coefficient represents the influence of race across 

all the cases. : 

16rhe majority apparently ignores its commitment 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 all. None of the three treated this argument as a 

possible Eighth Amendment claim. Finally, the "death odds 

multiplier” is not the most pronounced statistic in the Baldus 

study: a ruling of insufficiency based on that one indicator 

would not be controlling here. 

181ndeed, the Court indicated that it would have reached a 

different conclusion if the district court and this court had not 

been given the opportunity to analyze the statistics adequately. 

78 1.24.24 at 213, n.3. 

197he 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 model. 

20py. 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 method was a reasonable 

way of estimating the number of victims of each race. It further 

reduced the significance of this missing data. 

24 

 



  

5 2lphe district court, in assessing the weight to be 

accorded this omission, assumed that Dr. Baldus was completely 

unsuccessful in predicting how many of the cases led to penalty 

trials. Since the prediction was based on discernible trends in 

the rest of the cases, the district court was clearly erroneous 

to give no weight to the prediction. 

22phe treatment of the coding conventions provides another 

example. The district court criticized Dr. Baldus for treating 

"yg" codes (indicating uncertainty as to whether a factor was 

present in a case) as being beyond the knowledge of the jury and 

prosecutor ("absent") rather than assuming that the decision- 

makers 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 decision- 

makers did not know of its presence, either. Dr. Berk testified 

that the National Academy of Sciences had considered this same 

issue and had recommended 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 suggestion, 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 treating them as present. Each of the tests showed 

no significant reduction in the racial variable. The district 

court rejected this demonstration because it was not carried out 

using the largest available model. See infra p.. 18. 
  

23phe district court rejected this expert testimony, not 

because of any rebuttal testimony, but because it allegedly 

conflicted with the petitioner's other theory that multicol- 

linearity affects statistical significance. 580 F. Supp. at 364. 

The two theories are not inconsistent, for neither Dr. Baldus 

nor Dr. Woodworth denied that multicollinearity might have 

multiple effects. The two theories each analyze one possible 

effect. Therefore, the district court rejected this testimony on 

improper grounds. 

247he R? measurement represents the influence of random 

factors unique to each case that could not be captured by 

addition of another independent variable. As R“ approaches a 

value of 1.0, one can be more sure that the independent variables 

already identified are accurate and that no significant influ- 

ences are masquerading as random influences. 

25gee, e.9.s Pp. 46, 53. 
  

26gee footnote 24. 

271+ based that finding on the fact that a model with an 

RZ less than .5 "does not predict the outcome in half of the 

cases." This is an inaccurate statement, for an R%4 actually 

represents the percentage of the original 1l-to-1 differential 

25 

 



  

explained by all the independent variables combined. A model with 

an RZ of less than .5 would not necessarily fail to predict the 

outcome in half the cases because the model improves upon pure 

chance as a way of correctly predicting an outcome. For 

dichotomous outcomes (i.e. the death penalty is imposed or it is 

not), random predictions could succeed half the time. 

28wilkins v. University of Houston, 654 F.2d 388, 405 (5th 

Cir. 1981), is not to the contpary. That court stated only that 

it could not know whether an R“ of .52 or .53 percent would be 

inappropriately low in that context since the parties had not 

made any argument on the issue. 

29purthermore, an expert _for the petitioner offered the 

unchallenged opinion that the R“ measurements in studies of 

dichotomous outcomes are understated by as much as 50%, placing 

the RZ values of the Baldus Study models somewhere between .7 and 

+. 

301hdeed, 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 evidence to the contrary improperly infringes on the 

jury's duty to consider all relevant evidence. 

26 

 



  

‘HATCHETT, Circuit Judge, dissenting in part, and concurring in 
part: 

In this case, the Georgia system of imposing the death 

penalty is shown to be unconstitutional. Although the Georgia death 

penalty statutory scheme was held constitutional "on its face" in 

Gregg v. Georgia, 428 U.S. 153 (1976), application of the scheme 
  

produces death sentences explainable only on the basis of the race 

of the defendant and the race of the victim. 

I write to state clearly and simply, without the jargon of 

the statisticians, the results 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 defendant 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 throughout the 

total range of death-sentenced black defendants in Georgia. While 

1although I concur with the majority opinion on the 
ineffective assistance of counsel and death-oriented jury 
issues, I write separately to express my thoughts on the 
Baldus Study. 

I also join Chief Judge Godbold's dissent, as to the Giglio 
issue, and Judge Johnson's dissent. 

 



  

the 6 percent is troublesome, it is the disparity in the mid-range 

on which I focus. When cases are considered which fall in the 

mid-range, between less serious and very serious 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 decision on the proper sentence 

is most difficult 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 better results, consistent with 

techniques approved by the National Academy of Sciences, 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 circumstances surrounding each case which he 

thought had some impact on a death sentence determination. Addi- 

tionally, he focused on 230 of these factors which he thought most 

reflected the relevant considerations in a death penalty decision. 

Through this 230-factor model, the study proved that black defen- 

dants indicted and convicted for murder of a white victim begin the 

penalty stage of trial with a significantly greater probability of 

receiving the death penalty, solely because the victim is white. 

 



  

Baldus also observed thirty-nine factors, including 

information on aggravating circumstances, which match the 

circumstances in this case. This focused study of the 

aggravating circumstances in the mid-range of severity indicated 

that "white victim crimes were shown to be 20 percent more likely 

to result in a death penalty sentence than equally aggravated 

black victim crimes." Majority at ___. 

We must not lose sight of the fact that the 39-factor 

model considers information relevant to the impact of the | 

decisions being made by law enforcement officers, prosecutors, 

judges, and juries in the decision to impose the death penalty. 

The majority suggests that if such a disparity resulted 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 Georgia 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 precision, 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 demonstrates 

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 

significant 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. Georgia, 446 U.S. 
  

420, 428 (1980). A statute that intentionally or 

unintentionally allows for such racial effects is 

unconstitutional under the eighth amendment. Because the 

majority holds otherwise, I dissent. ? 

2Nothing in the majority opinion regarding the validity, impact, 
or constitutional significance of studies on discrimination in 
application of the Florida death penalty scheme should be 
construed to imply that the United States Supreme Court has 
squarely passed on the Florida studies. Neither the Supreme 
Court nor the Eleventh Circuit has passed on the Florida studies, 
on a fully developed record (as in this case), under fourteenth 
and eighth amendment challenges. 

 



  

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

We are challenged to determine how much racial 

discrimination, if any, is tolerable in the imposition of 

the death penalty. Although I also join in Judge Johnson's 

dissent, this dissent is directed to the majority's 

erroneous conclusion that the evidence in this case does not 

establish a prima facie Fourteenth Amendment violation. 

The Study 
  

The Baldus study, which covers the period 1974 to 

1979, is a detailed study of over 2,400 homicide cases. 

From these homicides, 128 persons received the death 

penalty. Two types of racial disparity are established--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 system 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 maker 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 

*Although I concur with the majority opinion on the 
ineffective assistance of counsel and death oriented jury 
issues, I write separately to express my thoughts on the 
Baldus Study. I also join Chief Judge Godbold's dissent and 
Judge Johnson's dissent. 

 



  

a possible punishment. At the other end of the spectrum are 

the tremendously aggravated murder cases where the defendant 

will very probably receive the death penalty, regardless of 

his race or the race of the victim. In between is the 

mid-range of cases where there is an approximately 20% 

racial disparity. 

The Baldus study was designed to determine whether 

like situated cases are treated similarly. As a starting 

point, an unanalyzed 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 Victim White Victim Black Victim Black Victim 

“22 .08 01 x03 
(50/228) (58/745) (18/1438) (2/64) 

+11 +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 the victim 

was black. Similarly, only 8% of white defendants compared 

to 22% of black defendants received the death penalty when 

1p Exhibit 63. 

 



  

the victim was white. The Supreme Court has found similar 

gross disparities to be sufficient proof of discrimination 

to support a Fourteenth Amendment violation. 2 

The Baldus study undertook to determine 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 necessarv to analyze and compare each of 

the potential death penalty cases and ascertain what 

relevant factors were available for consideration by the 

decision makers.> There were many factors such as prior 

capital record, contemporaneous 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 76-73, T-776~87. Stated 

another way, race influences the verdict just as much as any 

one of the aggravating circumstances listed in Georgia's 

hl death penalty statute. Therefore, in the application of 

the statute in Georgia, race of the defendant and of the 

victim, when it is black/white, functions as if it were an 

aggravating circumstance in a discernible number of cases. 

25ee discussion below at Page 9. 

3An 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 cases in which the death penalty may not be 
imposed." Zant v. Stephens, 77 L.EB4,24 235, 251, 
  

40.C.G.A. 5 17-10~30, 

 



  

See Zant v. Stephens, U.S. 1103. 8.00.:2733, 2747 
  

(1983) (race as an aggravating circumstance would be 

constitutionally impermissible). 

Another part of the study compared the disparities 

in death penalty sentencing according to race of the 

defendant and race of the victim and reflected the 

differences in the sentencing depending upon the predicted 

chance of death, i.e., whether the type of case was or was 

not one where the death penalty would be given. 

 



  

Table 43 

RACE OF DEFENDANT DISPARITIES IN DEATH SENTENCING RATES CONTROLLING FOR THE PREDICTED LIKELIHOOD OF A DEATH SENTENCE AND THE RACE 
OF THE VICTIM 

  

  

    

  

  

  

A B c D E F G H 
Predicted Average Death Death 
Chance of Actual Sentencing Rates for Sentencing Rates for 
of a Death Sentencing White Victim Arithmetic Black Victim 
Sentence Rate Cases Involving Difference in Ratio of Cases Involving 
1 (least) for the Race of the Race of the 
to 8 Cases at Black White Defendant Rates Defendant Rates Black White 
(highest) Each Level Defendants Defendants (Col.C-Col.D) {(Col.C/Col.D) Defendants Defendants 

x .0 .0 0 .0 — .0 = 
(0/33) (0/9) (0/5) (0/19) 

2 .0 .0 .0 0 - .0 .0 
(0/56) (0/8) (0/19) (0/27) (0/1) 

3 .08 «30 «03 227 10. «11 0 
(6/77) (3/10) (1/39) (2/18) (0/9) 

4 .07 «23 .04 «19 5475 «0 = 
(4/57) (3/13) (1/29) (0/15) 

5 27 +35 .20 15 1.75 x7 - 
(15/58) (9/26) (4/20) (2/12) 

6 .18 +38 .16 «22 2.38 .05 .50 
(11/63) (3/8) (5/32) (1/20) (2/4) 

7 .41 .64 «39 25 1.64 «39 «0 
(29/70) (9/14) (15/39) (5/13) (0/5) 

8 .88 .91 .89 .02 1.02 15 = 
(51/58) (20/22) (25/28) (6/8) 

I
]
 

Arithmetic 

Difference 

in Race of the 

Defendant Rates 
(Col.G-Col.H) 

|<
 

Ratio 

Race of the 

Defendant Rates 

(Col.G/Col.H) 
    

  

-11 

.10 

    

 



  

Columns A and B reflect the step progression of 

least aggravated to most aggravated cases. Table 43, DB, 

Ex. 91.2 Columns C and D compare sentencing rates 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 penalties were given in 

50 cases, only two blacks and three whites escaping the 

death penalty--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 

penalties disproportionately to white defendants 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 penalty. 

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. 

SThe eight sub-groups were derived from the group of cases 
where the death penalty was predictably most likely based 

upon an analysis of the relevant factors that resulted in 

the vast majority of defendants receiving the death penalty 

- 116 out of the total 128. This group was then sub-divided 

into the eight sub-groups in ascending order giving 

consideration to more serious aggravating factors and larger 

combinations of them as the steps progress. Tr. pages 

877-83. 

 



  

Statistics as Proof 
  

The jury selection cases have utilized different 

methods of statistical analysis in determining whether a 

disvarity is sufficient to establish a prima facie case of 

purposeful discrimination.® Early jury selection cases, 

such as Swain v. Alabama, used very simple equations which 
  

primarily analyzed the difference of minorities eligible for 

jury duty from the actual number of minorities who served on 

the jury to determine if a disparity amounted to a 

substantial underreonresentation of minority jurors.’ 

Because this simple method did not consider many variables 

in its equation, it was not as accurate as the complex 

statistical equations widely used today. 8 

The mathematical disparities that have been 

accepted by the Court as adequate to establish a prima facie 

case of purposeful discrimination range approximately from 

61n villafane v. Manson, 504 F.Supp. 78 (D.Conn. 1980), the 
court noted that four forms of analysis have been used: (1) 
the absolute difference test used in Swain v. Alabama, 380 
v.S. 202, 85 S.Ct. 824, 13 L.BA.24 759 (1963); (2) the ratio 
aporoach; (3) a test that moves away from the examination of 
percentages and focuses on the differences caused by 
underrepresentation in each jury; and (4) the statistical 
decision theory which was fully embraced in Castaneda v. 
Partida, 430 U.S. at 496 n.17, 97 S.Ct. at 1281 n.l7. See 
also Finkelstein, The Application of Statistical Decision 
Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 

338 (1966). 

  

  

  

  

  

7See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.24 
759 (1965); Villafane v. Manson, 504 F.Supp. at 83. 
  

  

85ee Finkelstein, The Application of Statistical Decision 
Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 
338, 363 (1966) ("The Court did not reach these problems in 
Swain because of its inability to assess the significance of 
statistical data without mathematical tools."). 

  

  

; 

 



  

14% to 40%.° "Whether or not greater disparities 

constitute prima facie evidence of discrimination depends 

upon the facts of each case. "10 

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 approved by the Supreme 

court.ll The object of this system, as well as any 

constitutionally permissible capital sentencing system, is 

to provide individualized treatment of those eligible for 

the death penalty to insure that non-relevant factors, i.e. 

factors that do not relate to this particular individual or 

the crime committed, play no part in deciding who does and 

who does not receive the death penalty.l? The facts 

9castaneda v. Partida, 430 U.S. at 495-96, 97 S.Ct. at 
1280-82 (disparity of 40%); Turner v. Fouche, 396 U.S. 346, 

90 S.Ct. 532, 24 L.B4.24 567 (1970) (disparity of 23%); 

whitus v. Georgia, 385 U.S. 545, 87 8.Ct, 643, 17 L.E4.24d 

599 (1967) (disparity of 18%); Sims v. Georgia, 389 U.S. 

404, 883 S.Ct. 523, 19 L.E4.2d 634 (1967) (disparity Of 

19.7%): Jones vy, Georgia, 389 U.S, 24, 83 8.Ct. 4, 19 

L.Ed.2d4 25 (1967) (disparity of 14.7%). These figures 

result from the computation used in Swain. 

  

  

  

  

  

10ynited States ex rel Barksdale v. Blackburn, 639 F.2d 1115, 

1122 (5th Cir. 1981) (en banc). 
  

l1l1Greqq v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 
859 (1976). 
  

127he sentencing body's decision must be focused on the 

"particularized nature of the crime and the particularized 

characteristics of the individual defendant." 428 U.S. at 

206.: 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 noncapital 

cases." 438 U.S. at 605); Eddings v. Oklahoma, 455 U.S. 

  

  

8 

 



  

disclosed by the Baldus study, some of which have been 

previously discussed, demonstrate 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 Protection 

Clause stands to protect. The majority, however, fails to 

give full reach to our Constitution. While one has to 

acknowledge the existence of prejudice in our society, one 

cannot and does not accept its application in certain 

contexts. This is nowhere 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 required in all 

types of equal protection cases charging racial 

discrimination."13 The Court has required proof of intent 

before it will strictly scrutinize the actions of a 

does focus on a characteristic of the particular defendant, 
albeit an impermissible one. See infra. p. 3. 

  

13Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 3276, 73 
  

L.B4.,24 1012 (1982), 

 



  

legislature or any official entity.l4 In this respect, the 

intent rule is a tool of self-restraint that serves the 

purpose of limiting judicial review and policymaking.13 

The intent test is not a monolithic structure. As 

with all legal tests, its focus will vary with the legal 

context in which it is applied. Because of the variety of 

situations in which discrimination can occur, the method of 

proving intent is the critical focus. The majority, by 

failing to recognize this, misconceives the meaning of 

intent in the context of equal protection jurisprudence. 

Intent may be proven circumstantially by utilizing 

a variety of objective factors and can be inferred from the 

totality of the relevant facts.l® The factors most 

appropriate in this case are: (1) the presence of 

Id. at n.5 ("Purposeful racial discrimination invokes the 
strictest scrutiny of adverse differential treatment. 
Absent such purpose, differential impact is subject only to 
the test of rationality."); 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."). 

  
  

  

15The intent rule "serves a countervailing concern of limiting 
judicial policy making. Washington v. Davis can be 
understood . . . as a reflection of the Court's own sense of 
institutional 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 Disproportionate Impact, 30 Colum. L. R. 137, 
160-61 (1980); see also Washington v. Davis, 426 U.S. 229, 
247-43, B84 S.Ct, 2040, 2051, 43 L.F4.24 597 (1976). 

  

  

  

  

16see Village of Arlington Heights v. Metropolitan Housing 
Development Corp,, 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 
L.B4d.24 450 (1977). 

  

  

10 

 



  

historical discrimination; and (2) the impact, as shown by 

the Baldus study, that the capital sentencing law has on a 

suspect class.1l”? The Supreme Court has indicated that: 

Evidence of historical discrimination is relevant 
to drawing an inference of purposeful 
discrimination, particularly . . . where the 
evidence shows that discriminatory 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 neutral on their face, 
serve to maintain the status quo. 

Evidence of disparate impact may demonstrate that 

an unconstitutional purpose may continue to be at work, 

especially where the discrimination is not explainable on 

non-racial grounds. 1? Table 43, supra p. 4, the table and 

the accompanying evidence leave unexplained the 20% racial 

disparity 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, 

1714. see also Rogers v. Lodge, 102 S.Ct. at 3280. 
  

18rogers ve. Lodge, 102 S.Ct. at 3280. 
  

191n 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 demonstrate unconstitutionality because in various 
circumstances the discrimination is very difficult to 
explain on nonracial grounds." See also Personnel 
Administrator of Mass. v. Feeny, 442 U.S. 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) . 

  

  

  

  

  

11 

 



  

it has, for example, relaxed the standard of proof in jury 

selection cases because of the "nature" of the task 

involved in the selection of jurors. 20 Thus, to show an 

equal protection violation in the jury selection cases, a 

defendant must prove that "the procedure employed resulted 

in a substantial underrepresentation of his race or of the 

identifiable group to which he belongs."21l The idea behind 

this method is simple. As the Court pointed out, "[i]f a 

disparity is sufficiently 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-related factors entered into the selection 

process, "22 Once there is a showing of a substantial 

underrepresentation of the defendant's group, a prima facie 

case of discriminatory intent or purpose is established and 

the state acquires the burden of rebutting the case. 23 

20yi11aqe of Arlington Heights v. Metropolitan Housing 
Daveliopment Cord., 426 U.S. at 267 n.13, 97 S.Ct, at 564 
n.1l3 ("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 
approach the extremes of Yick Wo or Gomillion."); see also 
International Bro. of Teamsters v. United States, 431 U.S. 
324, 339, 97 S.Ct. 1843, 1856 (1977) ("We have repeatedly 
approved the use of statistical proof . . . to establish a 
prima facie case of racial discrimination in jury selection 
cases."). 

  

  

    

  

2lcastaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 
1280, 51 L.Ed.2d 498 (1977). 
  

2214, at n,l13, 

2314. at 495, 1280. 

12 

 



  

In many respects the imposition of the death 

penalty is similar to the selection of jurors in that both 

processes are discretionary in nature, vulnerable to the 

bias of the decision maker, and susceptible to a rigorous 

statistical analysis. 24 

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 

reasonable acts of administrators and executives; and (2) 

preventing the questioning of tax, welfare, public service, 

regulatory, and licensing statutes where disparate impact is 

the only proof. 2° However, utilizing the standards of proof 

in the jury selection cases to establish intent in this case 

will not contravene this policy because: (1) deference is 

not warranted where the penalty is grave and less severe 

alternatives are available; and (2) the court did not 

contemplate capital sentencing statutes when it established 

2430yner, 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 remorse . . . ." Majority opinion at 
62. However, it is these differences that often are used to 
mask, either intentionally or unintentionally, racial 
prejudice. 

  

  

  

25gee Washington v. Davis, 426 U.S. at 248, 96 S.Ct. at 2051; 
Note, Section 1981: Discriminatory Purpose or 
Disproportionate Impact, 80 Colum. L. R. 137, 146-47 (1980). 

  

  

  

13 

 



  

this policy. Thus, statistics alone could be utilized to 

prove intent in this case. But historical background is 

also relevant and supports the statistical conclusions. 

"Discrimination on the basis of race, odious in 

all aspects, is especially pernicious in the administration 

of Justice."2® It is the duty of the courts to see to it 

that throughout the procedure for bringing a person to 

justice, he shall enjoy "the protection which the 

Constitution quarantees."2’ In an imperfect society, one has 

to admit that it is impossible to guarantee that the 

administrators of justice, both judges and jurors, will 

successfully wear racial blinders in every case. 28 However, 

the risk of prejudice must be minimized and where clearly 

present eradicated. 

26Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 61 
1..BE5.2d 739 (1979). 
  

27Rose, supra, 443 U.S. at 557. 
  

28pg 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). 
  

14 

 



  

Discrimination against minorities in the criminal 

justice system is well documented. ?? This is not to say that 

progress has 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 
vears after Strauder, racial and other forms of 
discrimination still remain a fact of life, in the 
administration of justice as in our society as a 

  

2%see, e.gd,; Johnson v, Virginia, 373 U.S. 61, 83 8,Ct.i1053, 
10 L.E4.2d 195 (1963) (invalidating segregated seating in 
courtrooms); Hamilton v. Alabama, 376 U.S. 650, 84 S.Ct. 
982, 11 L.Ed.2d 979 (1964) (conviction reversed when black 
defendant was racially demeaned on cross-examination); 
Davis v. Mississippi, 394 U.S. 731, .89 S.Ct. 1420, 22 
L.Ed.2d 684 (1969) (mass fingerprinting of young blacks in 
search of rape suspect overturned). See also Rose v. 
Mitchell, supra (racial discrimination in grand jury 
selection); 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 
underrepresent blacks and women in traverse and grand juries 
but avoid a prima facie case of discrimination because the 
percentage disparity would still be within the parameters of 
Supreme Court and Fifth Circuit case law. See notes 7-8 
supra and relevant text. The result was that a limited 
number of blacks were handpicked by the jury commissioners 
for service. 

    

  

  

  

  

  

  

15 

 



  

whole. Perhaps today that discrimination takes a 
form more subtle tha before. But it is no less 

~ real or pernicious. 

If discrimination is especially pernicious in the 

administration of justice, it is nowhere more sinister and 

abhorrent than when it plays a part in the decision to 

impose society's ultimate sanction, the penalty of death.31 

It is also a tragic fact that this discrimination is very 

much a oart of the country's experience with the death 

penalty. 3? Again and as the majority 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 

30Rrose, supra, 443 U.S. at 558-59, 
  

3lgee, e.d., Furman v. Georgia, 408 U.8, 238, 92 5.Ct. 3445, 

33 L.E4d.2d 346 (1972) (see especially the opinions of 
Douglas, J., concurring, id. at 249-252; Stewart, J., 
concurring, 14. at 309-310; Marshall, J., concurring, id. at 
364-365; Burger, C.J., dissenting, id, at 389-390. n.1l2; 
Powell, J., dissenting, id. at 449), 

    

  

327his 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, "[i]ndeed a look at the 
bare statistics regarding executions is enough to betray 
much of the discrimination." 14. 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, 89.5% were black or minorities. 
Sarah T. Dike, Capital Punishment in the United States, Pp. 
43 (1982). Of the 2,307 people executed in the South during 
that time period, 1659 were black. During the same 
fiftyv-year period in Georgia, of the 366 people executed, 
298 were black. Fifty-eight blacks were executed 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). 

  

  

  

  

16 

 



  

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 penalty system that 

discriminates on the basis of race. Hypothetically, if a 

racial bias reflected itself randomly in 20% of the 

convictions, one would not abolish the criminal justice 

system. Ways of ridding the system 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 

perpetrators 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 

unconscious biases. 

However, such reasoning cannot sensibly be invoked 

and bias cannot be tolerated when considering the death 

penalty, a punishment that is unique in its finality.33 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 

335ee, e.g., Woodson v. North Carolina, 428 U.S. 280, 305, 96 
S.Ct. 2978, 49 L.,E4.24 944 (1976). 
  

17 

 



  

circumstances is to approve a racial preference in the most 

serious decision 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 cavital 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 

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. 

18