Hardback
Public Court Documents
February 14, 1983 - August 3, 1983
265 pages
Cite this item
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Case Files, McCleskey Legal Records. Hardback, 1983. 9fc504ca-62a7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/893f3431-6371-47ba-9bbc-516c3ee465a8/hardback. Accessed October 08, 2025.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION NG. C81-2434A
Ve
WALTER D. ZANT,
SUPERINTENDENT, GEORGIA
DIAGNOSTIC AND
CLASSIFICATION CENTER,
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Respondent.
OPPOSITION TO MOTION TO COMPEL
Comes now Walter D. Zant, Respondent in the above-styled
action by counsel, Michael J. Bowers, Attorney General for the
State of Georgia, and submits the instant opposition to the
Petitioner's motion to compel received by the counsel for the
Respondent on July 25, 1983. In response to the motion to
compel, Respondent asserts the following:
po
et
In the first request in the motion to compel, Petitioner
requests that Respondent "respond in full" to Interrogatory No.
3. In particular, Petitioner asserts that another analysis has
been conducted and requests such alleged analysis. The only
basis for Petitioner's request is a statement made by an expert
witness during a deposition in which he stated he believed
there had been some analysis done. Counsel for the Respondent
was contacted by Mr. Stroup, co-counsel for the Petitioner,
concerning this request and counsel for Respondent explained in
detail the basis for Dr. Katz's answer.
The third interrogatory requested information setting forth
objections, criticisms or deficiencies of the data base, etc.
of Professor Baldus. No additicnal analysis has been done
outside the analysis conducted by the two expert witnesses who
have already been deposed by counsel for the Petitioner.
Although specific factual information obtained from the data
base of Professor Baldus was provided to this counsel and other
attorneys in this office, no analysis has been conducted based
on this information. It was originally contemplated that each
attorney might check the data with their own personal
recollection of the individual cases, but it was not intended
for any subsequent analysis to be done based on this
information. No attorneys presently with this office have done
any analysis of the data base in this manner. It appears that
one attorney who is no longer with this office may have begun a
comparison based on personal knowledge of the facts of a few
cases, but such comparison was not completed and has never been
utilized in any analysis by either counsel for the Respondent
or any of the expert witnesses. Furthermore, Respondent avers
that even if such a document or documents did exist, they would
clearly constitute attorney work product and would not be
subject to discovery. No ongoing analysis is being conducted
in this regard and the original proposed idea of making such a
comparison has been abandoned, primarily based on the fact that
very few attorneys remain in this office who have any direct
knowledge of any of the death penalty cases.
Therefore, in response to this request, Respondent asserts
that no further analysis has been conducted that would show any
objection, criticism, or deficiencies of the data base outside
of that work conducted by the expert witnesses. This office
has undertaken no cther independent analysis of the data base
and has abandoned the idea that was originally presented that a
casual comparison be made. Any notes that may exist are
clearly attorney work product and should not be subject to
discovery. Dr. Katz has received no data from this office,
aside from casual references to the facts as counsel thought
them to exist. Therefore, counsel for the Respondent continues
to object to providing any such alleged information.
2.
Respondent further objects to the second request under
Petitioner's motion to compel. The fact that Dr. Katz is being
paid by the State of Georgia is conceded and Respondent agrees
that such fact might be relevant at a hearing to show possible
interest or bias. The amount that Dr. Katz is being paid or
the terms under which he is working should not be subject to
discovery by counsel as this information has no possible
significance at any time except the hearing before this Court,
if at all.
WHEREFORE, Respondent opposes the motion to compel filed by
counsel for the Petitioner in the instant action and requests
that this Court deny the motion to compel discovery.
he.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
JAMES P. GOOGE, JR.
Executive Assistant Attorney General
ya 0 mile
ION O. GORDON of
or hl Assistant Attorney General
A B. SUE
Senior RRS Foner General
Wie NT,
MARY (BETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
i
CERTIFICATE OF SERVICE
I do hereby certify that I have this day se 5.
the within and foregoing Opposition to Motion to Compel,
prior to filing the same, by depositing a copy thereof,
postage prepaid, in the United States Mail, properly
addressed upon:
Mr. Robert H. Stroup
1515 Healey Building
57 Forsyth Street
Atlanta, Georgia 30303
John Charles Boger
10 Columbus Circle
New York, New York 10019
Anthony G. Amsterdam
New York University Law School
40 Washington Square South
New York, New York 10012
This 26th day of July, 1983.
uss LI 21 fcly 000 frat
ARY/JBETH WESTMORELAND MA V
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY, *
x
Petitioner, * CIVIL ACTION NO. C81-2434A
*
Vo *
WALTER D. ZANT, *
SUPERINTENDENT, GEORGIA *
DIAGNOSTIC AND *
CLASSIFICATION CENTER, * HABEAS CORPUS
x
* Respondent.
OPPOSITION TO MOTION FOR FURTHER DISCOVERY
Comes now Walter D. Zant, Respondent in the above-styled
action by counsel, Michael J. Bowers, Attorney General for the
State of Georgia and submits the instant response to
Petitioner's motion for further discovery received by counsel
on July 25, 1983.
Petitioner has requested an order from this Court
permitting a further deposition of Dr. Joseph Katz, an expert
witness assisting the Respondent in this action. This request
is based on an answer provided by Dr. Katz at his deposition in
which Petitioner sought to have Dr. Katz testify precisely what
he would use in support of his testimony at the hearing
scheduled before this Court. Dr. Katz received Professor
Baldus' lengthy working draft less than two weeks prior to the
deposition scheduled in this case. Obviously, Dr. Katz was
preparing for his deposition and was conversing with counsel
concerning the upcoming deposition of Protessor Baldus during
this time and did not have time to make a thorough analysis of
this lengthy working draft. All work done up until that time
had been based upon the original preliminary report submitted
by Professor Baldus and the data obtained from Professor
Baldus. Dr. Katz also stated that he could not proceed to
completely analyze the working draft without finding out
further information from Professor Baldus as to how certain
particular things were done. This is obviously based on the
fact that Dr. Katz did not know what approach he would take
until he knew what response Professor Baldus would have to Dr.
Katz's preliminary report.
Petitioner has complained in this regard that the
Respondent allegedly postponed Professor Baldus' deposition
until the last minute. Petitioner implies that an open
discovery period existed from December, 1982, until July,
1983. The record will reflect that the initial discovery
period expired and that a motion for an extension of the
discovery was pending in this Court, but had not been ruled
upon until some time in April, 1983. After that motion was
granted, it was determined that in the time available, it would
not be advisable to attempt to take Professsor Baldus'
deposition, particularly in light of the fact that Respondent
we had only been provided with the preliminary report at that
time. Once this Court granted subsequent discovery on June 3,
1983, counsel for the Respondent was contacted by counsel for
the Petitioner concerning depositions of Respondent's experts.
During telephone conversations, the scheduling of depositions
was discussed and counsel for the Respondent indicated that the
deposition of Professor Baldus would be taken. Counsel was
then made aware that Professor Baldus would not even be
availble for the entire remainder of the discovery period. The
dates for the three deposition were arranged between counsel
for both parties and were not scheduled so as to prejudice
either party. It should also be noted that as professor
Baldus' working draft was not received until approximatly June
15, 1983, a deposition taken prior to that time would have not
been beneficial.
Respondent would further note that no final report has been
forthcoming from Professor Baldus up until this time. Dr.
Katz, who is in the position of responding to the reports of
Professor Baldus, obviously cannot complete his analysis until
he knows the final analysis of Professor Baldus. Although
Professor Baldus and counsel for the Petitioner would obviously
wish all criticisms prior to the submission of a final report,
all criticisms cannot be made until the final report is seen.
This is based on the fact that the Respondent in this case is
doing no more than responding to the information submitted by
the Petitioner. It is perfectly reasonable for the
Respondent's expert to know precisely to what he is to respond
before making final plans for such a response. In fact, work
on such a response and preparation for the hearing is an
ongoing process which will continue until after the final
report is received from professor Baldus.
Furthermore, it appears from the deposition that Professor
Baldus is revising his report and data based partially on Dr.
Katz's report. Respondent's experts need this updaed
information before any determination can be made on the final
analyses necessary.
Respondent asserts that if Petitioner's arguments are
accepted, discovery could continue in this case for months to
come with each party requesting the last opportunity to obtain
information. Respondent has not sought to delay this matter
and has had the expert witnesses working as much as possible.
Until a final report is received from Professor Baldus, or
until it becomes apparent that no such final report is
forthcoming, counsel for the Respondent and the experts for the
Respondent cannot state what final plans will be made to
prepare for the hearing in this matter. Respondent asserts
that the response of Dr. Katz at the deposition was clearly a
proper one and was not such as to prejudice the Petitioner.
Respondent intends to supplement discovery materials with
further analyses from the expert witnesses when and if such
analysis become available. Therefore, Respondent requests that
this Court deny the Petitioner's request for further discovery
in order to take a second deposition of Dr. Katz, otherwise
discovery could continue ad infinitum.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
JAMES P. GOOGE, JR.
Executive Assistant Attorney General
JARION O. GORDON
irst Assistant Attorney General
mn Bill
Fara B. HILL,
Senior pasistani/h £0] ney General
lta led
MARY /BETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
: 8
A»
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing Opposition To Motion For Further
Discovery, prior to filing the same, by depositing a copy
thereof, postage prepaid, in the United States Mail,
properly addressed upon:
Mr. Robert H. Stroup
1515 Healey Building
57 Forsyth Street
Atlanta, Georgia 30303
John Charles Boger
10 Columbus Circle
New York, New York 10019
Anthony G. Amsterdam
New York University Law School
40 Washington Square South
New York, New York 10012
This 26th day of July, 1983.
Pe Bcth tctoreloud.
MARY (BETH WESTMORELAND
5 AE AS NOR EEE i PRL SP TTI ST SE US BR A A A RT REOR ST VA on BR a EE Te eae TR ya EE A TE I BT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
Ve
WALTER D. ZANT,
WARDEN,
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Respondent,
RESPONDENT'S SECOND SUPPLEMENTAL ANSWER
TO PETITIONER'S FIRST INTERROGATORIES
Comes now Walter D. Zant, by counsel, and submits the
following second supplemental answer to Interrogatory No. 3
previously submitted by the Petitioner. This was inadvertently
omitted from the supplemental answer mailed on July 27, 1983.
Once again, it should be noted that this is not a final listing
of all possible criticisms that may be ascertained prior to the
hearing in this matter.
There appear to exists problems in both studies conducted
by Professor Baldus relating to cases involving multiple
victims, whereas the procedural form study appears to have
variables provided to account for multiple victims, none of the
information regarding multiple victims in the second study
appears to have been coded as this information was not on the
tape provided to the Respondent. Certain information was set
forth on a multiple victim sheet, but this only provided for up
to two victims. It still appears that this information was
never coded. Furthermore, when defining variables, it appears
that in most instances, only the first victim was considered.
WHEREFORE, having made this second supplemental response to
Petitioner's interrogatories, Respondent Zant prays that these
answers be deemed sufficient.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
JAMES P. GOOGE, JR.
Executive Assistant Attorney General
A = Ql,
MARION O. GORDON -#
irst Assistant Attorney General
I
SeniOxr bry R ectney General
—
Wore XA Lesson ee fo tl
MARY BETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
Whi 1
OR a A A TB ER 0 ee Sl Da pnd a
ERTIFICATE OF SERVICE
" - 3 1,3 RT ~Te he Tnetrant I do hereby certify that I have this day served the instant
Robert H. Stroup pleading by hand delivering a copy of same to
~ i. Fu « Rn
OQ CNS Gare. ay , counsel for the Petitioner D and John Charles Bog {
This ZG/( day of Jitiy, 1983,
2 a
MARY BETH WESTMORELAND
UNITED 57 ATES DISTRICT cous
NORTHE
NC JR'IHn, Rl
TQM Tv ™ I arn MIS C3 oy OR *T A
BN DISTRICT ue HL Te.
ATLANTA DIVISIO oN
WARREN McCLESKEY, *
* CIVIL ACTION NO. C81-2434A
Petitioner, *
x
Ve *
WALTER D. ZANT, WARDEN, *
*®
* Respondent.
RESPONSE TO PETITIONER'S SECOND MOTION
FOR FURTHER DISCOVERY
COMES NOW Walter D. Zant, Respondent in the above-~styled
action, by counsel, Michael J. Bowers, Attorney General for the
State of Georgia and makes the instant response and objection
to Petitioner's second motion for further discovery which was
served upon counsel for the Petitioner at approximately 11:40
a.m., July 29, 1983, a little over three hours before astatus
onference was scheduled in the instant case. In response to —
the motion for discovery, Respondent states the following:
il.
As Petitioner has pointed out a numerous occasions, this
Court has granted discovery in the past and Petitioner had
until July 11, 1983, to complete all discovery that he wished,
but at no time did he request that Respondent admit to any of
the factors set forth in the instant request for discovery.
2.
The first request for admission concerns factors, which as
Petitioner states, are apparent from the Georgia Code.
Respondent does not intend to admit to questions which are
available from a mere reading of the Georgia law and sees no
reason for granting additional discovery merely to have
Respondent admit to facts which are a matter of record in the
laws of this State.
3.
The second request for admission filed by the Petitioner is
perhaps the most onerous request filed during all the discovery
period in that Petitioner now seeks to have Respondent complete
the study Petitioner 1s seeking to introduce. Petitioner has
continuously requested all criticisms that Respondent has and
Respondent has provided those as they have become available.
As previously noted, Respondent has not undertaken a
case-by-case determination as to the validity of the data
collected by Professor Baldus, but has undertaken instead a
detailed analysis of the brocedures used by Professor Baldus.
Respondent is not in the position of having to verify the data
used by the Petitioner, but rather this is a matter of proof
Fl for which the Petitioner bears the burden. Respondent should
not be required to utilize time and funds in order to complete
Petitioner's report which has been in the process for several
years. Respondent be expected to establish all inaccuracies in
the data in seven months when Petitioner is apparently
uncertain as to the accuracy of data after several
working with the data. The only additional information
Respondent has available concerning the data would be from
trial transcripts of other case files. Petitioner had the
opportunity through discovery to sit down and examine each
transcript pertaining to each case to check the accuracies of
the data rather than placing this burden on the Respondent.
4.
Respondent asserts that it would be totally unjust and
unreasonable to require Respondent to make any such admission
concerning the validity of the data when the Petitioner has the
buvder of proof in this regard. Respondent should not be
required to admit to factors which are clearly within the realm
of Petitioner's burden of proof. Neither should Respondent be
required to examine individually each case listed in the
Petitioner's study to determine if it is accurate.
> ¥ §
THEREFORE, Respondent respectfully requests that this Court
deny Petitioner's second motion for further discovery as being
completely unreasonable and unjust.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
JAMES P. GOOGE, JR.
Executive Assistant Attorney General
Jus . Go RDON Wali
irst ST Attorney General
a ba - . i 1
Sh B. ILL, [JR=
Seniof fil le rney General
he e937, aha ae la A
MARY /BETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 8tate Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
a BE ON SE eR ee DB ER Be] RE I rr SS SC DN EG ES ER
ST Ga Re eR eR Fp Ty TE yg)
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served a
copy of the instant pleading upon:
Robert H. Stroup
John Charles Boger
Counsel for the Petitioner
by hand on this date.
This 29th day of July, 1983.
Whey Lord Sthtbnprebosd
WERY IF 3ETH as
Assistant Attorney General
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- Civil Action
: No. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER McCLESKEY'S MEMORANDUM OF LAW
IN SUPPORT OF HIS SECOND MOTION FOR FURTHER DISCOVERY
Petitioner Warren McCleskey ("petitioner"), by his
undersigned attorneys, submits this memorandum of law in support
of his second motion for further discovery, seeking admissions
from respondent on certain matters relevant to this case. Both
of the requests for admission petitioner wishes to serve on
respondent are designed to streamline the evidentiary hearing
scheduled in this case and to avoid the needless use of court
time in establishing uncontroverted facts.
The first request asks respondent to admit what is
plain from Georgia statutes and Georgia case law: that Georgia
procedures for the processing of a murder charge follow a well-
defined path known to virtually every prosecutor, jurist and
criminal law practitioner. The need for such an admission
stems from petitioner's intention to introduce statistical
evidence collected by Professor Baldus on decisions made by
prosecutors and juries at various steps along this path. What
this request seeks to avoid is any need to call an expert on
Georgia criminal procedures to confirm, through his testimony,
that Georgia procedures do in fact follow such a path.
While petitioner believes that this evidence could
well be judicially noticed under Rule 201 of the Federal Rules
of Evidence, the most expeditious way to resolve the matter is
by obtaining an admission on these undisputed points from respondent.
Petitioner's second request for admission concerns the
accuracy of the underlying data collected by Professor Baldus
during his Procedural Reform Study and his Charging and Sentencing
Study. Professor Baldus made that data available to respondent in
January, 1983, during discovery, in the form of computer cards
and magnetic tapes. Petitioner has also provided respondent with
direct access to his original questionnaires and other data collec-
tion instruments. The original records from which the data was
collected are in the files of three State bodies -- the Supreme
Court of Georgia, the Georgia Department of Pardons and Paroles,
and the Georgia Department of Offender Rehabilitation. There-
fore, respondent has possessed the means to verify this data for
seven months.
Moreover, petitioner served upon respondent in April,
1983 a motion including an interrogatory directly aimed at iden-
tifying any data errors, so that Professor Baldus could perform
his computer runs and present his analysis on a body of data,
the accuracy of which had been established by the parties:
- 3
$3. List all ‘objections, criticisms or
deficiencies of the data base . .
of Professor David C. Baldus reflected
in the Georgia Procedural Reform Study
and the Georgia Charging and Sentencing
Study vs. 4 +
Respondent answered that interrogatory by attaching a copy of
a preliminary report containing the criticisms of an expert,
Professor Joseph Katz. Respondent noted that the report "is
preliminary in nature only and does not include all criticisms,"
but he has subsequently filed no amendments to his answer. In-
deed, petitioner has moved to compel respondent to file a further
analysis of possible errors mentioned during the deposition of
Professor Katz. Respondent has answered that motion by stating,
in sum, that no such analysis is being pursued.
Therefore, respondent should have no objection to
admitting the accuracy of this data, but for any inaccuracies it
may have identified, allowing both the Court and the parties
to focus their principal attention at the evidentiary hearing
on whether Professor Baldus' analysis establishes the significant
racial disparities which petitioner has alleged.
CONCLUSION
Petitioner's second motion for further discovery
should be granted.
Dated: July 28, 1983
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 98136
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY: Kober tA Lowy
1
CERTIFICATE OF SERVICE
I hereby certify that I am one of the attorneys
for petitioner Warren McCleskey in this action and that I
have this day served a copy of Petitioner's Second Motion
for Further Discovery upon Mary Beth Westmoreland, Esqg.,
Assistant Attorney General, 132 State Judicial Building,
40 Capitol Square, S.W., Atlanta, Georgia 30334, by hand.
. 920K
Done this 29 day of: July, 1983,
[a beat Xe 2% DUp—
I
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- CIVIL ACTION
NO. C81l-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER'S SECOND MOTION FOR FURTHER DISCOVERY
Petitioner Warren McCleskey ("petitioner") by his
undersigned counsel, moves this Court, pursuant to Rule 6 of the
Rules Governing 2254 Cases in the United States District Courts
and Rules 26(a) and 36 of the Federal Rules of Civil Procedure,
for an order granting petitioner leave to serve on respondent
Walter D. Zant the annexed Request to Admit. In support of this
motion, petitioner submits the accompanying memorandum of law,
demonstrating that this request for discovery has been made for
good cause.
Dated: July 28, 1983 Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 98136
ANTHONY G. AMSTERDAM
New York University Law
School
40 Washington Square South
New York, New York 10012
eth se — 3} . S¢£ ‘pa
BY: kobe AN. XW f—
7
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION
-against- NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
TO: Mary Beth Westmoreland, Esq.
132 State Judicial Building
Atlanta, Georgia 30334
REQUEST FOR ADMISSIONS
Petitioner Warren McCleskey ("petitioner"), by
his undersigned counsel, hereby requests respondent Walter D.
Zant, pursuant to Rule 36 of the Federal Rules of Civil Pro-
cedure and the order of the United States District Court, entered
July , 1983 in this action, to make the following admissions
within five (5) days after service of this request, for the
purpose of this action only and subject to all pertinent objections
to admissiblity which may be interposed at trial:
(1) The State of Georgia's criminal justice proceedings
in a homicide case may, depending upon the facts and circum-
stances of the case, include the following possible decisions
and/or stages:
(a)
(b)
{C)
(d)
If a police officer reports a homicide as
murder, a prosecutor may obtain a murder
indictment, may charge a lesser offense or
may bring no charges. Gregg v. Georgia, 428
Y.S. 153, 199 & n.50 (1976); see also, id.
at 224, 225 (concurring opinion of White, J.)
If a prosecutor obtains a murder indictment,
he or she may maintain the murder charge, may
accept a plea to murder or to a lesser offense,
may drop or lower charges, or may fail to prosecute.
Id.
If a prosecutor brings the case to trial for
murder, the jury may convict of murder or may
acquit or convict of a lesser offense. Ga. Code
Ann. §26-1101 (1982); Putnam v. State, 297 S.E.2d
286 (1982); Torley v. State, 233 'S.E.2d 476 (1977).
Gregg v. Georgia, 428 U.S. at 199 & n.50; id.
at 224, 225 (concurring opinion).
If the jury convicts of murder, or if a defendant
pleads guilty to murder, a prosecutor may or may
not request a penalty trial. Gregg v. Georgia,
supra, 428 U.S. at 199 & n.50; id. at 224, 225
(concurring opinion).
(e) If a prosecutor requests a penalty trial, the
jury may recommend a life sentence or a death
sentence. Ga. Code Ann. §26-1101, §26-3102
(1982); Gregg v. Georgia, supra, 428 U.S. at
199 & n.50; id. at 224, 225 (concurring opinion).
(f) If the judge or jury returns a death sentence,
the trial judge may enter a sentence of death or
may reverse the conviction or may, under certain
limited circumstances, impose a life sentence.
Ga. Code Ann. §27-2528 (1982); Mason v. State,
22% 8.E.24 "339 (1978).
(g) If the trial judge enters a sentence of death,
the Georgia Supreme Court may affirm the convic-
tion and death sentence, or may reverse the con-
viction or vacate the death sentence. Ga. Code
Ann. $§27-2537 (1982); Hunter v. State, 202 S.E.2d
441 (1973).
(2) The data contained in the computer cards comprising
the data base for the Georgia Procedural Reform Study and the mag-
netic tape comprising the data base for the Georgia Charging and
Sentencing Study, both made available to respondent in January,
1983, consisting of information, data and entries obtained from
records kept in the regular course of business by the Georgia
Supreme Court, the Georgia Board of Pardons and Paroles, and the
Georgia Department of Offender Rehabilitation, as supplemented
by responses from prosecutors and defense counsel in that limited
number of cases where official records omit certain relevant data,
accurately reflect the information, data and entries contained
in the above-mentioned records, and the facts on which supple-
mental responses have been obtained.
To the extent that the data referred to above is not
accurate, complete and up-to-date, petitioner requests that
respondent provide the correct, complete and up-to-date data.
Dated: July 28, 1983
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 98136
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
BY: [tye nf 297
[
July 28, 1983
Hon. J. Owen Forrester
United States District Judge
2367 United States Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30335
Re: McCleskey v. Zant, No. 81-2434A
Dear Judge Forrester:
We are writing this letter to set forth,
for the convenience of the Court and the parties,
some of the possible issues to be addressed during
the pretrial conference scheduled in this case for
Friday, July 29, 1983 at 3:00 P.M. Among those
matters we have identified are the following:
(i) Petitioner's Motion to Compel, dated
July 21,:1983;
(ii) Petitioner's Motion for a Further
Deposition, dated July 21, 1983;
(iii) Petitioner's Second Motion for
Further Discovery, dated July 28,
1983;
(iv) the Court's inquiry concerning the
relevance of petitioner's statistical
evidence in light of Spinkellink v.
Wainwright, 578 F.2d 582 (5th Cir,
1978), Smith v. Balkcom, 660 F.2d
573 (3th Cir. Unit B 1981), mod. on
reh'g, 671 F.2d '858 (1982), amd
McCorquodale v. Balkcom, 705 F.2d
1553 "(llth Cir. 1983), vacated and
ordered reheard en banc, No. 82-8011
(June 30, 1983);
(v) the likely length and scope of the
evidentiary hearing;
(vi) the participation of counsel not
members of the bar of this Court;
(vii) the presence of the petitioner;
1 0 CoLUMBUS CIRCLE {i212) 586-8397 NEW YORK, N.Y. 10019
Hon. J. Owen Forrester
Page 2.
July 28, 1983
(viii) the Court's preference on whether
or not it wishes to entertain
opening arguments.
We will, of course, be happy to address
any additional matters which the Court or respondent
raises during the conference. Best regards.
Sincerely,
Olen Bp ;
ohn Charles Boger
cc: Mary Beth Westmoreland, Esq.
JCB:agf
10 CcoOoLUMBUS CIRCLE i2121.586-8397 NEW YORK, NY 10078
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY, *
*
Petitioner, * CIVIL ACTION NO. (C81-2434A
3
v. *
x
WALTER D. ZANT, WARDEN, * HABEAS CORPUS
*
x Respondent.
RESPONDENT'S SUPPLEMENTAL ANSWER
TO PETITIONER'S FIRST INTERROGATORIES
COMES NOW Respondent Walter D. Zant, by Counsel, and
submits the following supplemental answer to Interrogatory
No. 3 previously submitted by the Petitioner. As noted in
Respondent's previous answers to the interrogatories, the
examination of the data in the instant case is an ongoing
process and Respondent will supplement the answers as
information becomes available. Respondent submits the
following additional criticisms to the data and report of
Professor Baldus in response to Interrogatory No. 3; however,
it should be noted that this is still not meant to be a final
listing of all possible criticisms that may be ascertained
prior to the hearing in this matter:
4 § #
1.
The indices used in the working draft appear to have little
statistical meaning due to the use of predicted outcomes.
2
It is unclear how the weights were obtained for life
sentence cases, including penalty trial and no penalty trial
cases, as it appears that Professor Baldus did not sample all
life sentence cases. Therefore, it may be that the weights
assigned are arbitrary.
3.
Inconsistency appears between the two studies based on the
data relating to prior convictions.
4,
Multicolinearity problems exist with the actual
regressions. There is no evidence to justify an assertion that
these regressions satisfy the underlying assumptions of
regressions. Furthermore, many more variables could be
defined, such as interaction variables.
Ba
The significance of the weights assigned on the race of
victim variable is questionable due to the fact that white
victim cases are still significantly more aggravated and less
mitigated and not enough variables have not been defined to
eliminate this factor.
5.
The del ad 4d NE a 2] a lain a high or rian he models use O not appear LO explain a high proportion
of the variation.
7.
The liberation hypothesis set forth by Professor Baldus
appears to be a direct result of the previously noted
inappropriateness of the indices.
8.
Professor Baldus appears to have done no testing on the
statistical validity of the regressions.
9.
The variables found to be significant in the working draft
can be greatly affected by violating the underlying statistical
assumptions of the method used.
10.
Inconsistencies have been found in the first study among
the individuals in coperpetrator groups.
31.
Estimates are used on the defendant-victim racial breakdown
by judicial circuit and sentence in the Charging and Sentencing
Study, frequently based on small sample sizes, rather than
having the exact breakdown.
12.
No reason has been given to justify
sample based on judicial circuit.
13,
the use of a stratified
In conducting the analysis of the Charging and Sentencing
Stud it is never indicated whether the tests are based on an f
allegation of discrimination during the precise time period of
the study or if the information collected is intended to be
reflective of how the system will always operate.
14.
The variable "FAMDIS" appears to be defined incorrectly in
the variable definitions provided to the Respondent.
15.
When the I.Q. of a defendant is unknown, the value of "99"
is arbitrarily assigned which can affect characteristics of the
case.
16.
Apparently there are numerous cases
of prior convictions is unknown. These
been assigned the median value for this
affect the characteristics of the cases
This refers to the ‘"MISARSTX" variable,
in which the existence
cases have arbitrarily
factor. This can
and may be misleading.
12.
a stratified MD
{ py 2D
Hh
No reason has been given to justify th
sample based on judicial circuit.
13.
In conducting the analysis of the Charging and Sentencing
Study, it is never indicated whether the tests are based on an
allegation of discrimination during the precise time period of
the study or if the information collected is intended to be
reflective of how the system will always operate.
14.
The variable "FAMDIS" appears to be defined incorrectly in
the variable definitions provided to the Respondent.
15.
When the I.Q. of a defendant is unknown, the value of "99"
is arbitrarily assigned which can affect characteristics of the
Case,
16.
Apparently there are numerous cases in which the existence
of prior convictions is unknown. These cases have arbitrarily
been assigned the median value for this factor. This can
affect the characteristics of the cases and may be misleading.
This refers to the "MISARSTX" variable.
17.
There also exists the possibility of errors due to outliers
in the regressions.
18.
No specific provision appears to have been made to
incorporate the "other" items provided for in the
questionnaire. No additional variables appear to have been
coded to encompass the information included in these items,
thus, it appears that these items were ignored.
lo.
In relation to the analysis of the instant case, it appears
that the data regarding the McCleskey case is incomplete as all
aggravating circumstances have not necessarily been accounted
for as provided in the questionnaires.
This list is intended to supplement previously answers to
interrogatories and the deposition previous given in this
regard. This is not meant to be an all-inclusive list of all
possible criticisms or deficiencies that may be found as
further testing continues in relation to the data and to the
preliminary report and working draft, but does include the
substantive criticisms and deficiencies known to the Respondent
at this time.
WHEREFORE, having made the supplemental responses to
Petitioner's interrogatories, Respondent Zant prays that thése L320
answers be deemed sufficient.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
JAMES P. GOOGE, JR.
Executive Assistant Attorney General
fis: 0 Condi
2 O. GORDON
SP Assistant Sy General
"AL dl
WILLIAM B. HILL JR
Seniof Assistamt-Kt orney General
v44 sey A WIW/) 2 er ladal
MARY /BETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
: 4
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing pleading, prior to filing the
same, by depositing a copy thereof, postage prepaid, in
the United States Mail, properly addressed upon:
Robert H, Stroup
1515 Healey Bldg.
57 Forsyth Street
Atlanta, Georgia
John Charles Boger
10 Columbus Circle
New York, New York 10019
Anthony G. Amsterdam
New York University Law School
40 Washington Square, South
New York, New York 10012
This JL of July, 1983
7 A A 7
7 ten dd Ut Brel.
MARY BETH WESTMORELAND
® wn
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-againgti- Civil Action
WALTER D. ZANT, Superintendent, No. @f2434A
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER'S PRELIMINARY MEMORANDUM OF LAW
CONCERNING THE RELEVANCE OF STATISTICAL
EVIDENCE TO HIS CONSTITUTIONAL CLAIMS
Petitioner Warren McCleskey ("petitioner"), by his
undersigned counsel, submits this preliminary memorandum of law
to address the issue, posed by the Court, of the general relevance
to petitioner's constitutional claims of statistical evidence on
race-of-defendant and race-of-victim disparities in the imposition
of capital sentences in the State of Georgia, in light of the
opinions in Spinkellink v. Wainwright, 578 F.24 582 (53th Cir. 1978);
Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1980), mod. on reh'g, 671
F.2d 858 (1981); and McCorquodale v. Balkcom, 705 F.2d 15573
(llth cir. 1983), vacated and ordered reheard en banc, No. 82-8011
(June 30, 1983).
These three cases, as well as other recent opinions of
the Eleventh Circuit, reveal clearly that the statistical evidence
4 a
Professor Baldus intends to introduce is not merely relevant;
it will establish precisely the sort of record the Eleventh
Circuit has identified as necessary for the review of constitu-
tional claims alleging systemwide arbitrariness and racial
discrimination. Some initial confusion over the appropriateness
of such proofs, which characterized the Fifth Circuit's 1978
opinion in Spinkellink v. Wainwright, was fully dispelled by the
Circuit Court three years later in the Smith v. Balkcom opinion
on rehearing. The Smith case, in turn, has been ratified in
several successive opinions of the Fifth and Eleventh Circuits,
most recently in McCorquodale v. Balkcom. A review of each case
in turn will demonstrate the relevance, indeed the centrality of
such statistical proof for this Court's evaluation of petitioner's
claims.
A. The Circuit's First Opinion: Spinkellink v. Wainwright
In 1977, John Spenkelink, a death-sentenced inmate
in the State of Florida, filed a federal habeas corpus petition
alleging, among other claims, that the Florida statute is being
applied both "arbitrarily, capriciously, excessively, and dispro-
portionately in violation of the eighth and fourteenth amendments,"
Spinkellink v. Wainwright, 578 F.2d 582, 599 (5th Cir. 1978), and
"in a discriminatory fashion against defendants convicted of
murdering whites, as opposed to blacks, in violation of the eighth
and fourteenth amendments and in violation of fourteenth amendment
equal protection," id.
The District Court scheduled an evidentiary hearing
a week after the petition was filed, denied petitioner's motion
for a continuance requested in order to assemble full evidentiary
proof, and entertained a single day of testimony. - 14. at 589.
Two days later, the District Court entered an order dismissing
the petition. Petitioner's arbitrariness claim was rejected,
in the alternative, (i) as already determined by the Supreme
Court's opinion in Proffitt v. Florida, 428 U.S. 242 (1976),
Spinkellink v, Wainwright, No. TCA 77-0895, Order at 4 (N.D. Fla.,
filed September 23, 1977); and (ii) as not STOLE by petitioner.
Jd. at 5. Petitioner's discrimination claim was rejected as
a matter of law, both because allegations respecting the race
of victims was held constitutionally irrelevant, id. at 6, and
because Proffitt v. Florida was deemed to have "passed upon the
application of the [Florida] statute," id. at 5,
On appeal, the Fifth Circuit affirmed. Spinkellink
V. Yalnwright, 5878 F.2d 582 (5th Cir. 1978). The rationale of
the Court's lengthy opinion, however, is far from clear. At the
outset, the Court first stated that petitioner's claims "contailn]
legal questions only," id. at 390, and held that, "assum[ing] for
the sake of argument that the factual allegations underlying these
contentions are true . . . the petitioner cannot prevail on them
as a matter of law," id. Later in its opinion, in addressing peti-
tioner's arbitrariness claim, the Court reasoned that the Supreme
Court's opinion upholding the Florida capital statute in Proffitt
v. Florida could be read in one of two ways: (i) either as deter-
mining that Florida's statutory procedures "conclusively remove]
- 2s
the arbitrariness and capriciousness which Furman held violative
of the eighth and fourteenth amendments," id. at 604, or alternatively,
as "only potentially satisfying] Furman's concern for arbitrariness
and capriciousness,” id. Adopting the former view, id. at 605, the
Fifth Circuit held that unless "the facts and circumstances of
[a capital defendant's] case are so clearly deserving of capital
punishment that it would be patently unjust and would shock the
conscience,” id. at 606 n.28, no attacks on the application of a
capital statute which, like those of Florida or Georgia, had been
upheld by the Supreme Court, would be entertained by the federal
courts. Id. at ‘605.
The Court adopted a similar position on petitioner's
discrimination claim, viewed as an Eighth Amendment challenge, see
id., 612-14 & n.40. Addressing petitioner's discrimination
claim under the Equal Protection Clause of the Fourteenth Amendment,
however, the Court first engaged in a review of the admittedly
preliminary and rudimentary statistical evidence showing racial
disparities that had been presented by petitioner during his
evidentiary hearing before concluding that this was "a case in
which the petitioner" -- who had failed to account statistically
for other possible explanations of the racial disparities he had
shown -- "could not prove racially discriminatory intent or purpose
as required by Washington v. Davis [426 U.5., 229 (1876}) ... . and
Arlington Heights [v. Metropolitan Housing Development Corp., 429
U.3. 252 (1977))," id. at 6186,
Although the Circuit thus ultimately denied John
Spenkelink's Equal Protection claim, it: (i) clearly held that
a capital inmate asserting discrimination based upon the race
of the victim "has standing to raise the equal protection issue, even
though he is not a member of the class allegedly discriminated
against, because such discrimination, if proven, impinges on his
constitutional right under the eighth and fourteenth amendments,"
id. at 812 n.36; and (il) strongly implied that such a claim
supported by evidence that sufficiently Socoinie for other
legitimate explanations of the racial disparities, would establish
a Fourteenth Amendment violation.
The opinion met with understandable confusion, since it
Begin cryptically with a holding that Spenkelink's claims were
legally insufficient, only to later reject Spenkelink's discrimina-
tion claim on the ground of its factual insufficiency. 1In one
of the few opinions addressing the issue prior to Smith, however,
Judge Goldberg ratified a view of Spinkellink that would permit
challenges to systematic discrimination in capital sentencing:
"The Supreme Court upheld Texas's capital
punishment statute on its face . . . but
that ruling, of course, does not preclude
[a capital inmate's] challenging the consti-
tutionality of the statute as applied ’
As we have noted, see Spinkellink v. Wainwright,
578 F.20 882, Bl4-16 (1978), this sort of challenge
must show intentional arbitrariness or discrimina-
tion under the standards of Village of Arlington
Heights . . . but such a showing, as the Arlington
Heights Court made clear, see 429 U.S. at 270 .
can rely on a pattern or practice of discrimination
or arbitrariness and need not identify an inten-
tionally discriminatory act or malevolent actor
in the defendant's particular case."
Jurek v. Estelle, 593 F.24 672, 685 n.26. (5th Cir. 1979) vacated
-5
and affirmed en banc on other grounds, 623 F.2d 929 (5th Cir.
1980)(en banc).
B. The Circuit Clarifies Its Position: Smith v. Balkcom
In Smith v. Balkcom, the Fifth Circuit was faced
with the first systemwide challenge to the application of a
capital statute to reach the federal circuit courts since
Spinkellink. The evidentiary record in Smith had been developed
during a consolidated evidentiary hearing presided over by Your
Honor, in House in Balkcom, No. C78-1471A (N.D. Ga., hearing held
May 27-30, 1979) and McCorquodale v. Balkcom, No. C79-95A (N.D. Ga.).
The transcript of that hearing, supplemented by additional clarifying
affidavits submitted in Smith by Professor William Bowers and Glenn
Pierce, constituted the record on these issues. (In brief, the evi-
dence showed substantial patterns of racial disparities in capital
sentencing in Georgia, which persisted even when Professor Bowers
controlled for the presence or absence of a contemporaneous felony,
the race of the defendant and/or victim, the sex of the victim,
or the geographical region of the State. The evidence did not,
however, control for any additional factors.)
In its initial opinion in Smith, the Fifth Circuit
rejected the petitioner's Eighth Amendment claim as a matter of law,
relying upon Spinkellink v. Wainwright, which it read to require
"proof of 'some specific act or acts evidencing intentional or
purposeful . . . discrimination against [the petitioner] '" Smith
v. Balkecom, 660 F.2d 573%, 585 {5th Cir. 1981). Concerning peti-
tioner's Equal Protection challenge, the Court both intimated
that Smith's proof was inadequate and stated that "[e]ven if
this evidence were sufficient to prove a racially disproportionate
impact . . . such evidence alone cannot establish an equal protec-
tion violation. To trigger strict scrutiny of a statute, proof
of intentional or purposeful discrimination is necessary . + .
Without such proof, any discriminatory impact may be explained on
nonracial grounds."
On panel rehearing, however, the Fifth Circuit deleted
its paragraph on Smith's Equal Protection claim and substituted
an alternative paragraph, which expressly acknowledged:
"In some instances, circumstantial or
statistical evidence of racially dis-
proportionate impact may be so strong
that the results permit no other in-
ference but that they are the product
of a racially discriminatory intent or
purpose."
Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982)(on rehearing).
The Court nevertheless faulted Smith's evidence on several grounds:
(i) "[t]lhe raw data selected for the statistical study bear no
more than a highly attenuated relationship to capital cases actually
presented for trial in the State,” id.; (ii) the statistical base
"leaves untouched countless racially neutral variables," id.; and
(iii) [tlhe statistics are not inconsistent with the proper applica-
tion of the structured capital punishment law of the state found
constitutional in Gregg v. Georgia,” id.
In a footnote, the Court identified by negative implica-
tion the sort of statistical evidence that would be significant in
establishing Smith's claim:
"No data is offered as to whether
or not charges or indictimenits grew
Nils, SHAE,
out of reported incidents or as to
whether charges were for murder under
aggravating circumstances, murder in
which no aggravating circumstances were
alleged, voluntary manslaughter, invol-
untary manslaughter, or other offenses.
The data are not refined to select in-
cidents in which mitigating circumstances
were advanced or found or those cases in
which evidence of aggravating circumstances
was sufficient to warrant submission of the
death penalty vel non to a jury. No incidents
resulting in not guilty verdicts were removed
from the data. The unsupported assumption is
that all such variables were equally distributed,
racially, sexually, offender and victim, through-
out the SHRs. No conclusions of evidentiary
value can be predicated upon such unsupported
assumptions.
Id. at 860. n.33.
C. The Circuit Ratifies Smith: McCorgquodale v. Balkcom
Following its decision in Smith v. Balkcom, the Circuit
on several occasions has reaffirmed that a state's application of
its capital statute can be subject to constitutional challenges
under the Equal Protection Clause. See, e.g., Profitt v. Wainwright,
685 FP, 24 1277, 1261, n. 52 (11th Cir. 1982) ("Iwo years after the
Former . Fifth Circuit decided Spinkellink, the Supreme Court address-
ed an attack on a state court's application of an aggravating
factor under its capital sentencing statute. See Godfrey v. Georgia,
446 U.S. 420 (1980). . .In view of Godfrey, we can only conclude
that the language in Spinkellink opinion precluding federal courts
from reviewing state courts' application of capital sentencing
criteria is no longer sound precedent"); see also Moore v. Balkcom,
No. 81-7418, Slip. Op. at 10 (11th Cir. June 23, 1983) ("Federal
habeas courts must and should examine whether the application of
approved sentencing procedures in a particular case creates a
- 8 =
substantial risk that the punishment has been inflicted in an
arbitrary and capricious manner"); Corn v. Zant, No. 81-7649,
Slip. Op«., at 27-28 {11th Cir. June 15, 1983) ("Corn also asserts
that his sentence is cruel and unusual because administration of
the death penalty is often based on a prisoner's race, sex and
economic statute. . .Without substantiating evidence, the peti-
tioner's true allegation of discrimination must fail") (emphasis
added) .
Among the more recent cases, none is more pertinent to the
question posed by this Court than McCorquodale v. Balkcom, 705 F.
2d 1553 (11th Cir. 1983). The record on appeal in McCorquodale
consisted of the testimony and exhibit received by Your Honor in
House and McCorquodale in 1979 -- several extremely preliminary
tables and figures showing racial disparities, accompanied by
testimony from Professor William Bowers, Glenn Pierce and Timothy
Carr, the Director of the Department of Statistics of Georgia's
Department of Corrections. Addressing this record for the second
time, the Eleventh Circuit in McCorquodale rejected it as factually
insufficient:
"As in Smith, the statistics proffered in the
instant case are incomplete. The tables do
not take into account the various statutory
aggravating circumstances such as the 'wanton-
ly vile, horrible, [and] inhumane' torture-
murder evidenced here."
McCorquodale v. Balkcom, supra, 705 F. 24 at 1556.
This key paragraph does not fault the receipt of statistical evidence
in support of petitioner's claim; to the contrary, its principal
complaint is that McCorquodale's statistics were "incomplete," since
they failed on account of "various statutory circumstances.”
-0
Petitioner McCleskey comes to the Court with the complete
statistics which the McCorquodale panel has solicited. He in-
tends to demonstrate that racial disparities, by both race of
defendant and by race of victim, persist even when statutory
aggravating circumstances, and over 200 other relevant factors
are held constant. These resistent racial disparities, we will
show, cannot be explained by any factor other than race itself.
Such a statistical pattern, we will contend, falls directly with-
in the language of Arlington Heights requiring an inference of
discriminatory intent or purpose violative of the Equal Protection
Clause. Therefore, petitioner's statistical case bears directly
upon his federal constitutional claims.
Dated: July 29, 1983.
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 98136
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY: k Plert BY C 9 Oe
7
-10-
CERTIFICATE OF SERVICE
I hereby certify that I am one of the attorneys for peti-
tioner Warren McCleskey in this action and that I have this
day served a copy of this Memorandum upon Mary Beth Westmoreland,
Esq., Assistant Attorney General, 132 State Judicial Building,
40 Capitol Square, S. W., Atlanta, Georgia 30334, by hand.
Done this 29th day of July, 1983.
2) es Nj b tert 2 X1Berp
ROBERT H. STROUP
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
Ve
WAITER D. ZANT, WARDEN, HABEAS CORPUS
%
%
%
N
MN
*
*
¥
¥
Respondent.
RESPONDENT'S SUPPLEMENTAL ANSWER
TO PETITIONER'S FIRST INTERROGATORIES
COMES NOW Respondent Walter D. Zant, by Counsel, and
submits the following supplemental answer to Interrogatory
No. 3 previously submitted by the Petitioner. As noted in
Respondent's previous answers to the interrogatories, the
examination of the data in the instant case is an ongoing
process and Respondent will supplement the answers as
information becomes available. Respondent submits the
following additional criticisms to the data and report of
Professor Baldus in response to Interrogatory No. 3; however,
it should be noted that this is still not meant to be a final
listing of all possible criticisms that may be ascertained
prior to the hearing in this matter:
oe
The indices used in the working draft appear to have little
statistical meaning due to the use of predicted outcomes.
N
2a
It is unclear how the weights were obtained for life
sentence cases, including penalty trial and no penalty trial
cases, as it appears that Professor Baldus did not sample all
life sentence cases. Therefore, it may be that the weights
assigned are arbitrary.
3.
Inconsistency appears between the two studies based on the
data relating to prior convictions.
4.
Multicolinearity problems exist with the actual
regressions. There is no evidence to justify an assertion that
these regressions satisfy the underlying assumptions of
regressions. Furthermore, many more variables could be
defined, such as interaction variables.
i
The significance of the weights assigned on the race of
victim variable is questionable due to the fact that white
victim cases are still significantly more aggravated and less
mitigated and not enough variables have not been defined to
eliminate this factor.
6.
The models used do not appear to explain a high proportion
Of the variation.
3.
The liberation hypothesis set forth by Professor Baldus
appears to be a direct result of the previously noted
inappropriateness of the indices.
8.
Professor Baldus appears to have done no testing on the
statistical validity of the regressions.
9.
The variables found to be significant in the working draft
can be greatly affected by violating the underlying statistical
assumptions of the method used.
10.
Inconsistencies have been found in the first study among
the individuals in coperpetrator groups.
11.
Estimates are used on the defendant-victim racial breakdown
by judicial circuit and sentence in the Charging and Sentencing
Study, frequently based on small sample sizes, rather than
having the exact breakdown.
12.
No reason has been given to justify
sample based on judicial circuit.
13,
the use of a stratified
In conducting the analysis of the Charging and Sentencing
Study, it is never indicated whether the tests are based on an
allegation of discrimination during the precise time period of
the study or if the information collected is intended to be
reflective of how the system will always operate.
14.
The variable "FAMDIS" appears to be defined incorrectly in
the variable definitions provided to the Respondent.
15.
When the I.Q. of a defendant is unknown, the value of "99"
is arbitrarily assigned which can affect characteristics of the
case.
16.
Apparently there are numerous cases
of prior convictions is unknown. These
been assigned the median value for this
affect the characteristics of the cases
This refers to the "MISARSTX" variable.
in which the existence
cases have arbitrarily
factor. This can
and may be misleading.
17.
There also exists the possibility of errors due to outliers
in the regressions.
1s.
No specific provision appears to have been made to
incorporate the "other" items provided for in the
questionnaire. No additional variables appear to have been
coded to encompass the information included in these items,
thus, it appears that these items were ignored.
19.
In relation to the analysis of the instant case, it appears
that the data regarding the McCleskey case is incomplete as all
aggravating circumstances have not necessarily been accounted
for as provided in the questionnaires.
This list is intended to supplement previously answers to
interrogatories and the deposition previous given in this
regard. This is not meant to be an all-inclusive list of all
possible criticisms or deficiencies that may pe found as
further testing continues in relation to the data and to the
preliminary report and working draft, but does include the
substantive criticisms and deficiencies known to the Respondent
at this time.
WHEREFORE, having made the supplemental responses to
Petitioner's interrogatories, Respondent Zant prays that these
answers be deemed sufficient.
espectfully submitted,
MICHAEL J. BOWERS
Attorney General
JAMES P, GOOGE, JR. :
Executive Assistant Attorney General
y/ why Ber le _
RION O. GORDON fees
irst Assistant Attorney General
ATS
WILLIAM B. HILL / JR
Senio CE General
Neen Du 2A Aleelns oped gf
MARY /BETH WESTMORELAND
Assistant Attorney General
ES
MARY BETH WESTMORELAND
132 state Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and feregecing pleading, prior to filing the
same, by depositing a copy thereof, postage prepaid, in
the United States Mail, properly addressed upon:
Robert H, Stroup
1515 Healey Bldg.
57 Forsyth Street
Atlanta, Georgia
John Charles Boger
10 Columbus Circle
New York, New York 10019
Anthony G. Amsterdam
New York University Law School
40 Washington Square, South
New York, New York 10012
This JUL of July, 1983
NAH, zy a7 Li ed deer ot
MARY BETH WESTMORELAND
IN THE UNITED STATES DISTRICT COURT
FOR THE ‘NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
Civil Action
-against- No. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center, AFFIDAVIT
Respondent.
STATE OF NEW YORK )
COUNTY OF NEW YORK )‘SS°
JOHN CHARLES BOGER, being duly sworn, states:
l. I am an attorney for petitioner Warren McCleskey
("petitioner") in this action, and I make this affidavit in
support of petitioner's motiong filed together herewith, (i) to
compel discovery and (ii) for a further deposition of Dr. Joseph
Katz.
2. Petitioner's motion to compel, pursuant to Rule 37
of the Federal Rules of Civil Procedure, seeks two items of informa-
tion: (i) an analysis of possible errors in Professor David Baldus'
coding of capital cases, apparently completed by respondent but
not made available to petitioner; and (ii) information on the
financial arrangements between respondent and his principal expert
witness, Dr. Joseph Katz, which was requested by petitioner
during Dr. Katz's deposition, but which the Attorney
General specifically instructed Dr. Katz not to provide.
Respondent's Additional Analysis
3. In Petitioner's First Interrogatories to
Respondent, dated April 8, 1983, petitioner explicitly asked
respondent to:
"3. List all objections, criticisms or
deficiencies of the data base, data-gathering
methods, analyses and conclusions of Professor
David C. Baldus . . . State objections with
particularity, include detailed reasons for
objections, and identify all sources of informa-
tion upon which each objection and criticism is
based. If the objections are based on errors re-
garding information known only to the respondent,
provide the correct information or data. . . ."
(Copies of the relevant pages of Petitioner's First Interrogatories
are annexed as Exhibit A.)
4. After this Court granted petitioner's motion for
discovery on June 3, 1983, respondent served Answers to Petitioner's
First Interrogatories on June 14, 1983. In responding to Interroga-
tory No. 3, respondent attached a preliminary report of Dr. Joseph
Katz, outlining certain criticisms of Professor Baldus' analysis,
and promised that "[als additional information becomes available,
Respondent will supplement these answers." (Copies of the relevant
pages of Respondent's Answers are annexed as Exhibit B.)
5. During the deposition of Dr. Joseph Katz on July 1,
1983, petitioner questioned Dr. Katz on whether he received informa-
tion from members of the Attorney General's office on possible errors
in Professor Baldus' coding process. Dr. Katz answered that,
"to [his] knowledge, I believe there has been some analysis
done" employing the Baldus data, although he could not answer
petitioner's questions on the analysis, since he had not personally
been given "access to any analysis that's been done in that area."
(Deposition of Dr. Joseph Katz, taken July 1, 1983, at 177. Copies
of the relevant pages of this deposition are annexed as Exhibit C.)
6. As of July 18, 1983, respondent has not provided peti-
tioner with this analysis, although it appears to be directly within
the ambit of question 3 of Petitioner's First Interrogatories.
Expert Compensation
7. During Dr. Katz's deposition, petitioner also
requested Dr. Katz to reveal any terms between himself and respondent
for compensation for his services as an expert witness. The Attorney
General noted an objection and directed Dr. Katz not to answer the
question. (Deposition, supra, at 183. Copies of the relevant
pages of this deposition are annexed as Exhibit D.)
Further Deposition of Dr. Katz
8. As petitioner stated in his Motion for Discovery,
dated April 8, 1983, he has sought "an open exchange of information
and clarification of technical issues related to petitioner's data
at the discovery stage to ensure a more efficient and comprehensive
evidentiary hearing." (Memorandum of Law in Support of Petiticner's
Motion for Discovery, 2-3.) To that end, petitioner has made his
principal experts available to respondent for depositions and related
discovery since December of 1982. Petitioner noted that "only
after respondent's experts have had the opportunity to review peti-
tioner's data and develop questions or criticisms of it, can peti-
tioner depose respondent's experts to ascertain the principal
2
criticisms of the Baldus studies." (Memorandum, supra, at 5.) Yet
after respondent failed to depose Professor Baldus from December,
1982 until July, 1983, and following this Court's grant of petitioner's
own motion for discovery on June 3, 1983, petitioner was compelled
to schedule the deposition of respondent's expert, Dr. Joseph Katz,
for June 30-July 1, 1983. Respondent thereafter noticed the deposi-
tion of Professor Baldus for July 5, 1983.
9. During Dr. Katz's deposition, petitioner was able to
question Dr. Katz on his preliminary report provided to petitioner
on June 15, 1983. However, Dr. Katz took the position that he could
not discuss any further objections to Professor Baldus' work --
including his response to Professor Baldus' extensive and updated
working draft provided to respondent nearly two weeks prior to Dr.
Katz's deposition -- since he "first had to be present at Professor
Baldus' deposition to find out precisely what he's done so that I
can then proceed to analyze it. I'm waiting for the deposition to
analyze it." (Deposition of Dr. Joseph Katz, supra, at 178. Copies
of relevant pages of this deposition are annexed as Exhibit E.)
Pressed on whether he could make any statements prior to Professor
Baldus' deposition, or even could project lines of further investiga-
tion based on the working draft, Dr. Katz testified that his plans
"all depend[ed] on how the [Baldus] deposition goes" (Id., at 179.)
10. Respondent, by delaying Professor Baldus' deposition
until the end of an eight-month discovery period, and Dr. Katz,
by taking the position that no further objections and criticisms of
the research efforts of Professor Baldus could be outlined until the
Baldus deposition had been completed, have effectively foreclosed
petitioner from learning the full extent of respondent's criticisms
of petitioner's evidence. The full reciprocal discovery contemplated
by the Court and promised by the parties can thus occur only if peti-
tioner is permitted a further deposition of Dr. Katz. Since peti-
tioner anticipates that many of the objections expected from
respondent will raise technical issues, which can be fully taken
into account by Professor Baldus during the evidentiary hearing
if he receives sufficient advance notice to permit him to compute
and analyze his data while adjusting for the objections, a further
deposition should ensure a fairer and more complete presentation
of the relevant evidence. It should also permit this Court a better
view of the underlying merits of petitioner's evidence, undistracted
by minor disputes over computational questions which can be avoided
if both parties are adequately apprised, prior to the hearing, of
the respective positions taken by their experts.
ll. For the reasons set forth in this affidavit and
in Petitioner's Memorandum of Law, I urge the Court to enter an
order (i) compelling respondent to disclose the information it has
heretofore declined to reveal, and (ii) granting a further deposition
of Dr. Joseph Katz to be scheduled as rapidly as convenient for the
2
73 Lor (Sm
h 7.
JOHN CHARLES BOGER
parties and the deponent.
Sworn to before me this 18th
day of July, 1983
NOTARY “POBLIC
JEL BERGER
Noisy Public, State of New York
No. 31-5281197
Qualified in New York County i
Comesssicn Expires March 30, 193.2
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- CIVIL ACTION
| NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
>
PETITIONER'S FIRST INTERROGATORIES TO RESPONDENT
Pursuant to rule 33 of the Federal Rules of Civil
Procedure, Warren McCleskey ("petitioner") propounds the following
interrogatories to -respondent Walter D. Zant ("respondent").
Respondent is requested to answer these interrogatories in writing
and under oath within thirty (30) days after service.
These interrogatories are deemed to be continuous,
and respondent is requested to supplement or amend its answers
to hese interrogatories if additional information that makes
previous answers to these interrogatories inaccurate or incom-
plete becomes known to respondent at any time prior to or during
the evidentiary hearing in this case.
If the answer to any interrogatory identifies any document
(as that term is defined herein) in the possession, custody or
control of respondent, petitioner hereby requests, pursuant to
® | i
expert witness: (a) append an up-to-date curriculum vitae and a
bibliography listing all his or her publications; (b) state the
subject matter on which the expert is expected to testify; (c)
state the substance of the facts snd opinions to which the expert
is expected to testify and a summary of the grounds for each opinion.
2. Pursuant to Rule 26(b) (4) (B) of the Federal Rules of
Civil Procedure, identify the nontestifying expert iinesses upon
whose opinions or analyses respondent either expects, plans or
intends to rely. For each nontestifying expert witness, append
an up-to-date curriculum vitae and a bibliography listing all his
or her publications.
3. List all objections, criticisms or deficiencies of
the data base, data-gathering methods, analyses, and conclusions
of Professor David C. Baldus reflected in the Georgia Procedural
Reform Study and the Georgia Charging and Sentencing Study, in all
of their various forms, identified in earlier filings in this action.
State objections with particularity, include detailed reasons for
objections, and identify all sources of information upon which
each objection and criticism is based. If the oh ations are
based on errors regarding information known only to the respondent,
provide the correct information or data in hard copy or machine-
readable form.
4. List all objections, criticisms and/or defenses
that respondent intends to raise concerning setitiodents claims
and proof that the death penalty in the State of Georgia and Fulton
County is applied in an arbitrary and racially disciminatory manner
EXHIBIT B
' UNITED STATES DISTRICT COURT
~~ NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
Xe.
WALTER D. ZANT, WARDEN,
HABEAS CORPUS
*
F
X
¥
¥
F*
*
*
*
Respondent.
RESPONDENT'S ANSWERS TO ~~
PETITIONER'S FIRST INTERROGATORIES
Pursuant to Petitioner's motion for discovery and this
CotTts order of June 2, 1983, granting such discovery and
granting certain interrogatories, Respondent Zant submits the
following answers to these interrogatories, by showing and
stating the following:
XY.
In response to Interrogatory No. 1, Respondent Zant states
the following: Respondent anticipates the possibility of using
two expert witnesses a3 testifying experts. The first possible
expert witness is Joseph Lorne Katz and the second is Roger
Lewis Burford. Attached to these answers are copies of prevent
curriculum vitae as well as bibliographies of publications.
3 :
Dr. Katz is expected to testify concerning his in depth
analysis of the report of Professor David C. Baldus and the
methods that he has used to study the analyses of Professor
Baldus. Dr. Burford has assisted as a consulting expert and is
expected to testify as to his opinions concerning the methods
of analysis used by Professor Baldus and also as to the
conclusions reached by Professor Baldus.
2.
In response to Interrogatory No. 2, Respondent Zant states
the following:
Respondent Zant has not relied upon any other expert
-v
witnesses concerning this matter.
3.
In response 0 thterrogatoty No. 3, nespondent Zant states
the following:
In response to this interrogatory, Respondent Zant has
attached a copy of a preliminary report compiled by Dr. Joseph
Katz which sets forth a summation of his criticisms and the
results of his studies concerning the analyses, conclusions and
reports of Professor Baldus. This report is preliminary in
nature only and Dr. Katz is continuing to engage in further
analyses. As additional information becomes available,
Respondent will supplement these answers at that time. Please
note that this report is preliminary in nature only and does
not include. all criticisms, conclusions or opinions that may be
developed prior to the time of the hearing. As this is an on
going process, Respondent will make every effort to keep
counsel for the Petitioner updated. As of this date, the
preliminary report involves conclusions reached on the basis of
data furnished by Professor Baldus and not on the basis of any
outside data except that known by counsel through contact with
this case or the transcripts of a very limited number of other
cases.
4,
In response to Interrogatory No. 4, Respondent Zant states
the following:
Respondent would refer to the attached preliminary report
in response to this interrogatory as well. This is the only
study or report being used by the Respondent at the current
time and the only documents used by the Respondent in preparing
this report came from the data presented to the Respondent by
Professor Baldus. Once again, the report is preliminary in
‘nature and any further objections or criticisms which arise
will be used to supplement the answers to these interrogatories
as soon as this information becomes available.
. a 5. and 6.
Respondent does not respond to these interrogatories at
this time as the court has not ruled on whether these
interrogatories should be answered. Respondent will awake for
the order of the court before answering these interrogatories.
’
EXHIBIT C
EARLENE PP. STEWART
pi CERTIFIED COURT REPORTER
4334 GREENVALE ORIVE
DECATUR, GEORGIA 30034
(aga) 981-2311
¢ | IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN !1cCLESKEY,
/ : Petitioner,
CIVIL ACTION FILE
vs.
NUMBER: C81l-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification :
Center,
Respondent.
C > VOLUME II
| DEPOSTION OF DR. JOSEPH L. KATZ taken at the instance
of the Petitioner at 132 State Judicial Building, Atlanta,
Georgia, before Earlene P. Stewart, Certified Court
Reporter and Notary Public, on the lst day of July, 1983,
at 3:30 a.m.
APPEARANCE OF COUNSEL
For the Petitioner: For the Respondent:
JOHN CHARLES BOGER MARY BETH WESTMORELAND
Attorney at Law Assistant Attorney General
NAACP Legal Defense and 132 Judicial Building
Educational Fund Atlanta, Georgia 30334
10 Columbus Circle
New York, New York 10019
ey Also Present
(." Robert H. Stroup, Esq. Professor David C. Baldus Co-Counsel Samuel P. Laufer —,
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Q This is based on his knowledge of the zese?
A This is what he told me. So, I can't vouch for
any of that making any sense or being true. That's simply
the information that he transmitted to me.
0 Do you have any other instances in which he gave
you similar kinds of information or suggested erroneous
coding or mismatching?
A There was another instance where the Isaacs, I
believe it was Coleman, where he indicated that there were
many more aggravating circumstances than were indicated in
the Procedural Reform Study.
Q Did any other members of the Attorney General's
Office give you oral information or written information to
suggest other errors in the coding process?
A No, they have not provided them to me; no.
Q Have they provided them to anyone connected with
this study?
MS. WESTMORELAND: I don't think he knows the
answer to that.
MR. BOGER: I'm only asking you for information
to which you know the answer.
THE WITNESS: I believe that is pretty much the
extent to what I've been privileged to in that area in -
noticing that there were, according to Mr. Dumich, some
differences in what he would have coded for the aggravating
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circumstances compared to what was actually coded.
BY MR. BOGER:
Q When you talk about being privileged to, I'm not
exactly sure what you mean.
A I don't have access to any analysis that's been
done in that area.
Q To your knowledge, there may have been such analysi!
done?
oF To my knowledge, I believe there has been some
analysis done.
Q Does it employ any of the data that you've had
access to, Professor Baldus's data?
A Yes; I've provided them with the data.
Q To whom have you made that available?
A To Mr. Dumich and the others.
Q And he is in the Attorney General's Office?
A Yes.
Q Okay. You indicated that you had done some race
of defendant analysis since receiving Professor Baldus's
working draft dated June 15, I think, 1983. What's the naturs
of those race of defendant analyses?
A Pretty much what I described to you in terms of
defendant victim racial combination. Plus, I also ran a
comparison, a computer printout that you have in your
possession, comparing white defendant cases and black defendar
Ul
at
EXHIBIT D
EARLENE P. STEWART
s CERTIFIED COURT REPORTER »
4334 GREENVALE ORIVE
DecATUR., GEORGIA 30034
(404) 981-2311
C | IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN !1cCLESKEY,
di : Petitioner,
CIVIL ACTION FILE
Vs.
NUMBER: C81l-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
C 3 VOLUME II
DEPOSTION OF DR. JOSEPH L. KATZ taken at the instance
of the Petitioner at 132 State Judicial Building, Atlanta,
Georgia, before Earlene P. Stewart, Certified Court
Reporter and Notary Public, on the lst day of July, 1983,
at 8:30 a.m.
N.
APPEARANCE OF COUNSEL
For the Petitiomer: For the Respondent:
JOHN CHARLES BOGEX MARY BETH WESTMORELAND
Attorney at Law Assistant Attorney General
NAACP? Legal Defense and 132 Judicial Building
Educational Fund Atlanta, Georgia 30334
10 Columbus Circle
New York, New York 10019
go Also Present
Robert H. Stroup, Esq. Professor David C. Baldus
Co-Counsel Samuel P. Laufer S—
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A No.
Q Kish covers data collection methods as well. What
about questionnaire design?
A I don't know right offhand.
Q Okay. And finally, something that always gets
asked to every expert in every case that I've ever seen,
are you being compensated by the State of Georgia for your
work?
A Yes.
Q At what rate?
MS. WESTMORELAND: I don't really think that's
relevant at this proceeding at this time. We will stipulate
that Dr. Katz is under contract to the State of Georgia at
this time and has been.
MR. BOGER: Okay, the objection as to relevance
is noted, and if you will answer the question?
MS. WESTMORELAND: We still direct Dr. Katz not
to answer the question as to the rate of his compensation. I «
think that that's something that you're entitled to at this sj
MR. BOGER: We would disagree on that. I suspect
we'll not go to the Judge over it, but of course he will be
asked this question on cross examination. “ang te does go to
possible interest or bias, and I suspect he'll probably have
answer it. But as a statistician who remembers every number
that has ever come up, I suspect you'll still be able to do ij
don't
tage.
to
EXHIBIT E
3 EARLENE P. STEWART
CERTIFIED COURT REPORTER
4334 GREENVALE DRIVE
DECATUR. GEORGIA 30034
(ag4) 981-2311
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN !1cCLESKEY,
Petitioner,
CIVIL ACTION FILE
vs.
NUMBER: C81l-2434A
WALTER D. ZANT, Superintendent, :
Georgia Diagnostic & Classification :
Center, :
Respondent.
VOLUME II
DEPOSTION OF DR. JOSEPH L. KATZ taken at the instance
of the Petitioner at 132 State Judicial Building, Atlanta,
Georgia, before Earlene P. Stewart, Certified Court
Reporter and Notary Public, on the lst day of July, 1983,
at 8:30 a.m.
APPEARANCE OF COUNSEL
For the Petitiomer: For the Respondent:
JOHN CHARLES BOGEX MARY BETH WESTMORELAND
Attorney at Law Assistant Attorney General
NAACP Legal Defense and 132 Judicial Building
Educational Fund Atlanta, Georgia 30334
10 Columbus Circle
New York, New York 10019
Also Present
Robert H. Stroup, Esq. Professor David C. Baldus
Co-Counsel Samuel P. Laufer sm
178
9 “
1 | cases.
y Sa saly Was the sentencing outcome a dependent variable
3 | at this point?
4 A No, this is similar to the information that I used
5 | to autiss; to construct the tables.
6 Q I see.
7 A So, I ran them for all the variables defined in {
8 | the earlier table for the Charging and Sentencing Study.
2 Q Do you have, have you formulated any additional
10 | research plans with respect to Professor Baldus's working
11 | draft to prepare you for the evidentiary hearing in August?
12 A Well, I first had to be present at Professor
13 | Baldus's deposition to find out precisely what he's done
oi 14 | so that I can then proceed to analyze it. I'm waiting for
15 | the deposition to analyze it.
16 Q So, until after you know what he says in his depo-
17 | sition, you're not in a position to say what you are going
18 | to do or what analysis you may undertake to prepare for the
19 | hearing?
| A Correct.
21 Q Even with receipt of the working draft?
2 A Well, I would like the opportunity to find out
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23 | what all that means, and we will do that when we take his
24 | deposition. And that will make it easier for me to formulate
25 | possible experiments to test his conclusions.
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2 Have you formulated any experiments that you
intend to carry out to this point?
A I don't know if they're going to =- TI think it all:
depends on how the deposition goes and what happens and
whether any of these kinds of experiments might be necessary.
MR. BOGER: let me note for the record, Ms. |
Westmoreland, that the reasons the depositions were initially
scheduled in the order they were or initially suggested in
the order that they were was precisely in order to give
Professor Baldus an opportunity to hear what criticisms
in this study may be developed by an expert. It's for that
reason that when Mr. Dumich was given the opportunity to
depose Professor Baldus last November, which was about eight
months ago, that we told the court we would not depose any
experts the State came up with until after Professsor Baldus
had first been deposed; which we anticipated now what this
witness has told us, that he has to hear Professor Baldus's
deposition before he can fully prepare his criticisms.
With that in mind, and with the observation that
we first knew who your experts were on June 15th, whereas
you knew our expert as early as early as November 15th, we
may well apply to the Court for a further deposition of
Dr. Katz dnd aie rationale which we think is reasonable,
that both sides should be prepared for a hearing of this
sort, and that the witness who is propounding a theory and
| t 180
Ls 1 | propounding a report needs to hear that criticism in order
R 2 | to take account of it in his preparations for the hearing.
3 I just wanted to alert you to that. I know that
4 | you were not the Attorney General on the case back in
5 | November or December or January and so forth. I think there
6 | were some reasons, I suspect, why there was some delay in
7 | taking Professor Baldus's deposition, but you know we're
8 | facing a July llth cut-off at this point of the discovery
9 | period, and I simply want to advise you that we may seek a
10 | deposition after the end of that period based upon what
11 { Professor Katz has told us. I still have some additional
12 | questions, but --
13 MS. WESTMORELAND: Just in relation to that,
14 | 1£f I could just make one comment. Part of, I think, the
15 | problem is the latest working draft; and I don't believe we
16 | received it until June 17th =-- it was either the 15th or
17 | 17th. . And I think Dr. Katz is contemplating reviewing it
18 | somewhat more thoroughly before our final determination has
3 19 | been made. I think that is my understanding of the remaining
20 | work that needs to be done, at least as far as that. I'll
21 also note that I have not been Counsel of Record for that
22 | greater length of time, and I also do believe there was
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24 | discovery was available, while the initial discovery period
25 | had expired and we were waiting to hear if the discovery
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY, z
Petitioner,
-against- : Civil Action
No. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER McCLESKEY'S CONSOLIDATED MEMORANDUM OF LAW
IN SUPPORT OF HIS MOTIONS FOR FURTHER DISCOVERY
Petitioner Warren McCleskey ("petitioner"), by his
undersigned attorneys, submits this memorandum of law in support
of his motion to compel and his motion for further discovery, both
filed herewith. As set forth in the affidavit of John Charles
Boger, dated July 18, 1983, petitioner has propounded to respondent,
by leave of this Court granted June 3, 1983, an interrogatory re-
questing all "objections, criticisms or deficiencies of the data
base, data-gathering methods, analyses, and conclusions of Professor
David C. Baldus." Although respondent did provide petitioner with
a draft report from Dr. Joseph Katz, one of their expert witnesses,
it became apparent during Dr. Katz's deposition that another analysis
of possible coding errors had been undertaken by respondent. Dr.
Katz was aware of the analysis, which had been based upon data he
provided to the Attorney General's office, although he stated that
he had not seen the further analysis and thus could not testify as
to its contents under oath.
It is unclear why respondent had not previously informed
petitioner of his analysis or made it available in response to Peti-
tioner's Interrogatory No. 3. That interrogatory was not limited
to objections or criticisms provided by experts, and respondent did
not file any objection to the interrogatory on grounds of relevance,
overbreadth, privilege, work product or any other doctrine. Under
Rule 33 of the Federal Rules of Civil Procedure, petitioner is clearly
entitled to a full answer to the interrogatory, and under Rule 37, the
Court should now direct respondent to provide that full answer, in-
cluding the analysis alluded to by Dr. Katz.
Petitioner inquired during the deposition of Dr. Katz
concerning his financial arrangements with respondent. Petitioner
was cLesrly entitled to such information which bears directly on
the witness's possible interest or bias. See, e.g., McNenar v. New
York, Chicago & St. Louis R. Co., 20 F.R.D. 598 (W.D. Pa. 1957).
Nevertheless, the Attorney General instructed Dr. Katz not to answer
petitioner's questions. The Court should compel Dr. Katz to reveal
that information.
Finally, as explained in the affidavit of John Charles
Boger, respondent's expert avoided full revelation of his criticisms
of Professor Baldus' work during his deposition by pleading that he
needed to hear the Baldus deposition testimony before he could decide
what further analysis of Professor Baldus' work he intended to
pursue. Respondent should not be permitted to profit from his last-
minute scheduling of the Baldus deposition by keeping some of his
WALL: A
purported objections -- many of which petitioner's experts could
adjust for in their final report if they receive timely notice --
under wraps until the August 8th evidentiary hearing. To ensure
that the hearing will present the Court with as adequate a factual
basis as possible upon which to resolve the important constitutional
questions before it, the Court should allow petitioner an expeditious
further deposition of Dr. Katz.
Dated: July 18, 1983
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY:
JOHN R. MYER 1513 HEALEY BUILDING
57 FORSYTH ST., N. W.
ROBERT H. STROUP ATLANTA, GEORGIA 30303
GARY FILLACK
404/522-1934
ATTORNEYS AT LAW
July 21, 1983
Honorable J. Owen Forrester
United States District Judge
2367 United States Courthouse
75 Spring Streetl, S. W.
Atlanta, Georgia 30335
Re: Warren McCleskey v. Walter Zant
Civil Action File No. 81-2434A
Federal Habeas Corpus
Dear Judge Forrester:
I am in receipt of the letter of opposing counsel, Mary Beth
Westmoreland, requesting that the Court schedule a status
conference in the above-referenced action. The petitioner
joins in this request, believing that a number of matters
related to the hearing would best be handled in a pretrial
conference.
I am also enclosing, for the Court's convenience, copies of
two motions filed with the Clerk this morning.
In light of petitioner's motion for an additional deposition
of one of respondent's experts, a conference with the Court
early next week, if at all possible, would be preferred.
Very truly yours,
(Qebent Yast
Robert H. Stroup
RHS/1
Encls.
cc: Mary Beth Westmoreland, Esq.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION PILE
-vVsS- NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER McCLESKEY'S MOTION TO COMPEL
Petitioner Warren McCleskey ("petitioner"), by his under-
signed counsel, moves this Court, pursuant to Rules 6 and 11
of the Rules Governing Section 2254 Cases in the United States
District Court, Rule 37 of the Federal Rules of Civil Procedure,
and Rule 91.6, Local Rules of the Northern District of Georgia,
for an order compelling respondent:
(1) to respond in full to item number 3 of Petitioner's
First Interrogatories, dated April 8, 1983, as to which this
Court directed the respondent to answer in its order of June 3,
1983;
Petitioner's First Interrogatories, #3, sought:
"3, List all objections, criticisms or deficiencies
of the data base, data-gathering methods, analyses
and conclusions of Professor David C. Baldus. .
State objections with particularity, include detail-
ed reasons for objections, and identify all sources
of information upon which each objection and
criticism is based. If the objections are based on
errors regarding information known only to the respon-
dent, provide the correct information or data. . . .
(Copies of the relevant pages of Petitioner's First Interrogatories
are annexed to Boger Affidavit, Exhibit A.)
Respondent filed the following answer to Interrogatory #3:
"In response to Interrogatory No. 3, Respondent
Zant states the following:
In response to this interrogatory, Respondent Zant
has attached a copy of a preliminary report compiled
by Dr. Joseph Katz which sets forth a summation of his
criticisms and the results of his studies concerning
the analyses, conclusions and reports of Professor
Baldus. This report is preliminary in nature only and
Dr. Katz is continuing to engage in further analyses.
As additional information becomes available, Respondent
will supplement these answers at that time. Please
note that this report is preliminary in nature only and 5
does not include all criticisms, conclusions or opinions
that may be developed prior to the time of the hearing.
As this is an on going process, Respondent will make
every effort to keep counsel for the Petitioner updated.
-As of this date, the preliminary report involves con-
clusions reached on the basis of data furnished by
Professor Baldus and not on the basis of any outside data
except that known by counsel through contact with this
case or the transcripts of a very limited number of
other cases."
(Copies of the relevant portions of Respondent's Answers are attached
to Boger Affidavit as Exhibit B.)
»
Ra A
Respondent's Subsequent Objection.
At the deposition of one of respondent's experts, Dr. Joseph
Katz, petitioner questioned Dr. Katz on whether he received infor-
mation from members of the Attorney General's office on possible
errors in Professor Baldus' coding process. Dr. Katz answered
affirmatively:
"QO. To your knowledge, there may have been such analysis
done?
A. To my knowledge, I believe there has been some
analysis done.
Q. Does it employ any of the data that you've had
access to, Professor Baldus' data?
A. Yes; I've provided them with the data.
Q. To whom have you made that available?
A. To Mr. Dumich and the others.
0. And he is in the Attorney General's Office?
A. Yes."
(Dep. Tr., at 177, attached to Boger Affidavit, Exhibit C.)
Petitioner's Authority.
Because the information falls squarely within the terms of the
petitioner's third interrogatory, the respondent should be ordered to
respond.
Petitioner further moves for an order compelling respondent
(2) to permit Dr. Joseph Katz to answer questions propounded
to him during his deposition on July 1, 1983, concerning which res-
pondent directed Dr. Katz not to answer.
Deposition Question
"Q. Okay. And finally, something that always gets
asked to every expert in every case that I've
ever seen, are you being compensated by the
State of Georgia for your work?
A. Yes,
Q. At what rate?"
(Dep. Tr., at 183, attached to Boger Affidavit, Exhibit D.)
Respondent's Objection
"MS. WESTMORELAND: I don't really think
that's relevant at this proceeding at this time. We
will stipulate that Dr. Katz is under contract to the
State of Georgia at this time and has been.
MR. BOGER: Okay, the objection as to relevance
is noted, and if you will answer the question?
MS. WESTMORELAND: We still direct Dr. Katz not
to answer the question as to the rate of his compensation.
I don't think that's something that you're entitled to at
this stage."
(Dep. Tri, at 183.)
Petitioner's Authority
The information sought bears directly on the witnesses' possible
interest or bias. See, e.g., McNenar v. New York, Chicago & St. Louis
R.Co., 20 RD 598 (WW. D. Pa. 1957).
In further support of this Motion, petitioner submits the
affidavit of John Charles Boger, dated July 18, 1983, and the accom-
panying memorandum of law, demonstrating that this Motion has been
made for good cause.
Dated: July 21, 1983.
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
4 J rr “SF
pv: [00st 8p
/ !
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy
of the within and foregoing pleadings upon Mary Beth Westmore-
land, Esqg., Assistant Attorney General, 132 State Judicial
Building, Atlanta, Georgia 30334, by depositing a copy of same
in the United States Mail, first-class postage prepaid.
This 218% day of July, 1983.
fey Eup
ROBERT H. STROUP!
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
WARREN McCLESKEY, i
Petitioner, CIVIL ACTION FILE
-VsS-— - NO. C81-2343A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
“LOCAL RULE 91.62 CERTIFICATE
1. This is to certify that, on July 20, 1983, I conferred
with counsel for the respondent, Ms. Mary Beth Westmoreland, in
a good faith effort to resolve the issues raised within the fore-
going motion to compel. We have not been able to cdo so.
2. As to petitioner's request that the respondent produce
the documents which Dr. Katz testified had been prepared by
members of the Attorney General's staff (and which testimony came °
subsequent to an of f-the-record conference with Ms. Westmoreland),
she has indicated that some of the Attorney General's staff have
not prepared the subject documents. She was not prepared to state
unequivocally that no documents had been prepared.
3. As to petitioner's request that information regarding the
fee arrangement between the State and Dr. Katz be provided, she
stated that "we'll probably tell you at the hearing, not before."
1515 Healey Building
Atlanta, Georgia 30303
ATTORNEY FOR PETITIONER.
Whe Hepartment of ate
Sate of & 1
= JD Zt gt 13
A
74 $1 a
FAS BRIE EER |
MICHAEL J. BOWERS . 3033249 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
July 14, 1983
United ates Web Judge
United States District Court
Northern District of Georgia
237 71.8. Courthouse
75 Spring Street S. W.
Atlanta, Georgia 30303
RE: Warren McCleskey v. Walter Zant
Civil Action No. C81-2434A
Federal Habeas Corpus
Dear Judge Forrester
m writing to inform you that I am now counsel of record in
he above-styled case. Mr. Dumich is no longer with our office
and I will be handling all further matters in regard to this
I am also writing concerning the status of the instant case.
As you are aware, the discovery period ended on July 11, 1983.
Both parties have taken depositions and other discovery in this
regard. Counsel for the Petitioner, Mr. Boger, and I have
discussed the possibility of having a status conference or
pretrial conference prior to the scheduled hearing date of
August 8, 1283. I am writing to suggest to the court that such
a hearing be held at the earliest possible convenience as there
are certain Getails that need to be resolved well in advance of
the hearing. 1 think it would be beneficial to the court as
well as to both parties to have such a conference at least two
weeks prior to the hearing, if not earlier.
>
Honorable J. Owen Forrester
July 14, 1982
Page 2
Ry copy of this letter, I am notifying opposing counsel of this
request. I will be certain to accommodate the court in
whatever matter you determine 1s appropriate in this regard.
Thank you for your time and consideration.
Sincerely,
77} A ') ; hd in 4 Cave) Vi
a { LA Ue aee load
i Li . ye i w+ .
MARY BETH WESTMORELAND
Assistant Attorney General
MBW:en
c: John Charles Boger
xobert H. Stroup
Anthony G. Amsterdam
FATEH TD J Ch J SO Ni EN FEN ee ee Ee
PR T——————— - i A _———__—"m,
The Department of Lat
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 8656-3300
June 30, 1983
John Charles Boger
Attorney at Law
10 Columbus Circle
New York, New York 10019
RE: Warren McCleskey v. Zant
Civil Action No. C81-2434A
Dear Jack:
I am writing to inform you of my response to one of the items
listed in your original notice to produce in the above-styled
case. You will recall that in your notice to produce number 5,
you requested certain specific documents. In the order of
June 3, 1983, the court denied this request, but directed our
office to facilitate an opportunity for you to inspect any
available records.
I have communicated with the Supreme Court of Georgia in an
attempt to facilitate any discovery that can be had in this
matter. I presented your request and a copy of Judge
Forrester's Order to persons in the Supreme Court of Georgia so
that they could determine what information they might have that
would meet the request and what information might be available
for inspection.
I have been informed that certain documents are available which
are public records. Any documents included in the records of
individual cases in the court are open for inspection by the
public. This would include trial transcripts, records from the
trial courts, and, in death penalty cases, the report of the
trial judge. In order to view any of this information you
merely need to check with the Clerk of the Supreme Court and
you may inspect these records in the Clerk's office. The court
has a standing rule that the original records are not allowed
to be taken out of the office. Keep in mind that certain of
these records are old and will be store in Archives; therefore,
it may take a day or so to get these records if you need them.
John Charles Boger
June 30, 1983
Page 2
The court also apparently has done a study relating to the
Unified Appeal Procedure which would be a public document, but
this does not relate in any way to your request for documents.
It has also been indicated to me that there is another study
which relates to the impact of the death penalty on the
commission of certain crimes. Again, this study does not
relate to anything outlined in your request of April 8, 1983.
I have been informed that any other information that the court
has relating to the death penalty either does not pertain in
any manner to the request you have made, or would consist of a
confidential communication between court personnel. The court
apparently will not allow inspection of documents that do not
comply with your request, nor, obviously, will the court allow
inspection of confidential communications.
I consider this to be responsive to the Order entered by Judge
Forrester. I have made every effort that I know to facilitate
your inspection of pertinent documents pursuant to this
particular request.
Sincerely,
Maw Both Weabm acho
MARY BETH WESTMORELAND
Assistant Attorney General
MBW: en
cc: Robert H. Stroup
Honorable J. Owen Forrester
The Bepartment of Lam
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
June 23, 1983
Mr. John Charles Boger
Attorney at Law
10 Columbus Circle
New York, New York 10019
Re: Warren McCleskey v. Zant, Civil Action
No. C81-2434A
Dear Jack:
This is to confirm our telephone conversations of June 27, 1983
and June 28, 1983 regarding the deposition scheduled for the
above-styled case. My understanding now is that we will take
the deposition of Dr. Katz in the conference room on the first
floor of the State Judicial Building beginning at 3:00 p.m. on
Thursday, June 30th and continuing on Friday. I have given the
list of items that you have requested from Dr. Katz to him. He
has indicated that there should be no problem with having these
documents present at the deposition on Thursday afternoon. I
understand that this is not an exclusive list and we will make
every attempt to cooperate in this matter.
Concerning the deposition of Professor Baldus and the information
requested from him, I intend to provide you with a list by Friday
of documents or other items that I know we will need at the
deposition next week. I will try to be as specific as possible,
but, as in the case with Dr. Katz, I will leave open the option
that we may need additional material that is not specified in
the list. I also definitely would like the opportunity to examine
the raw data, i.e., questionnaires, next week while we are in
Syracuse. Examining them after we adjourn for the day on Wednesday
should be satisfactory. As I stated, I will provide you with a
list that is not intended to be all inclusive for items that we
definitely want present at the deposition of Professor Baldus.
Mr. John Charles Boger
June 28, 1983
Page -2-
I also understand that we are both agreeable to making whatever
arrangements are necessary for xeroxing any material that either
one of us needs at either deposition. As I indicated to you,
we obviously do have a xerox machine, but it would be necessary
to charge you at our standard rate for xeroxing and it would not
be possible to have the information xeroxed on Thursday or Friday.
I think that most of the information Dr. Katz will have for you
to observe will be in the form of computer printouts which may
cause some xeroxing problems. It is quite possible that we might
be able to allow Bob Stroup to take these materials to his office
for a few days. It will depend entirely on exactly which documents
you request to copy. In the same manner, I would assume that
we can either make arrangements to have documents of Professor
Baldus copied in New York or make some arrangement to obtain
these documents in Atlanta to copy them. I can understand that he will
not want certain documentstoleave his possession, but I understand
that you are willing for us to work out something between the two
of us that is mutually agreeable.
In the event that you leave New York before this letter arrives,
I am sending a copy to Bob Stroup as well and if need be will
provide you with a copy at the deposition on Thursday. I look
forward to seeing you at that time.
Sincerely,
MARY BETH WESTMORELAND
Assistant Attorney General
MBW/bh
cc: Robert H. Stroup
1515 Healey Building
Atlanta, Georgia 30303
The Department of Pats
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
June 24, 1983
Mr. Robert H. Stroup
Attorney at Law
1515 Healey Building
i 57 Forsyth Street, N.W.
: Atlanta, Georgia 30303
Re: Warren McCleskey v. Zant, Civil Action
No. C81-2434A
Dear Bob:
This is to correct the address listed on the Notice of
Deposition for Professor Baldus which was mailed on June 21,
19683. I noticed that there was a typographical error on the
street address for the Department of Law. The address should
be 333 East Washington Street. Please notify the appropriate
individuals of this change. I hope this has not caused you any
inconvenience.
PT
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I have also checked with our office concerning the availability
of a conference room for the deposition of Dr. Katz. I have
reserved a conference room On the first floor of the Judicial
Building from 9:00 a.m. until 5:00 p.m. on Thursday, June 30,
1983. I have also reserved the conference room beginning at
approximately 10:30 a.m. on Friday, July 1, 1983. There is a
weekly meeting which is scheduled for Friday morning and we
will be unable to obtain the conference room any earlier than
10:30. 1It is remotely possible that it may be closer to 11:00,
but I don't think that is likely. As I indicated to you on the
telephone, it would be much more convenient for Dr. Katz and
myself due to the amount of material that he has if the
deposition could be taken here rather than at your office. If
this presents problems for you, please feel free to contact me
and we will make arrangements that are agreeable to everyone
| involved.
—
_
m
¢ K_
Mr. Robert H. Stroup
June 24, 1983
Page -2-
As I have been out-of-town, I have not been able to contact the
Supreme Court concerning the remaining material, but intend to
try to make that communication either today or Monday. I will
let you know just as soon as I find out any information
Thank you for you time and consideration in this matter.
Sincerely,
I icey Det A tha hnecet iy pal NeebaeA_
MARY BETH WESTMORELAND
Assistant Attorney General
MBW/ mb
cc: John Charles Boger
AO 72A
(Rev. 8/82)
* ®
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA JUN 94 100.
ATLANTA DIVISION <4 1983
WARREN McCLESKEY,
Petitioner,
vs, : CIVIL ACTION
NO. C81-2434A
WALTER D. ZANT, Superin-
tendent, Georgia Diagnostic
& Classification Center,
Respondent.
ORDER
Petitioner has renewed his motion for discovery as to
his interrogatories numbers 5 and 6 pursuant to the di-
rections of the court in its order of June 3, 1983,
To the extent that respondent or the State Law Depart-
ment has records which might contain the information re-
quested in intersogatories numbers 5 and 6, the petitioner
may inspect and copy such records at the place where the
records are presently maintained. To that extent, peti-
tioner's motion for discovery as to these interrogatories is
GRANTED. oc
a [
IT IS SO ORDERED this =~ day of June, 1983.
by
N / al - )
/ 3 7 // ld rs fe 07 [| ~~ A
J. GWEN FORRESTER
UNFTED STATES DISTRICT JUDGE
a RAI
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
vs. No. C81-2432A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
D
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De
De
De
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D
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De
,
ek
Pr
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k
De
el
=k
AFFIDAVIT OF BENSONETTA TIPTON LANE, ESQ.
STATE OF GEORGIA)
)ss:
COUNTY OF FULTON)
Personally appeared before the undersigned officer,
duly authorized by law to administer oaths, BENSONETTA TIPTON
LANE, ESQ., who after being duly sworn on oath, deposes and
says as follows:
l. My name is Pensonetta Tipton Lane. I am more
than eighteen years of age, and am under no legal disability of
any kind. This affidavit is given freely and voluntarily, for
use in the above-captioned action.
2. ‘I am an attorney licensed to practice in the State
of Georgia. I have been practicing law in Atlanta since June,
1976.
3. On March 9, 1983, the Gate City Bar Association
sponsored a forum regarding the merits of the death penalty.
Speakers representing both pro-death penalty and anti-death
penalty viewpoints spoke concerning their personal and profes-
sional experiences.
4, Fulton County Assistant District Attorney John
Turner represented the anti-death. penalty perspective. Part
of his presentation consisted of statements by Fulton County
Assistant District Attorney Russell Parker concerning Mr.
Parker's own views on the death penalty. Mr. Parker also dis-
cussed the manner in which he had made the decision to use the
death penalty in his cases.
5. During the course of his Coin en Russell Parker
stated that one of the factors which he personally considered
very strongly in determining whether to seek the death penalty
was the wishes of the victim's family. He said that, on occasion,
the desires of the victim's family may be the determinative
factor.
6. He also stated that, in his experience the way
that grief manifested itself varied widely among victim's families,
and that similarly, some families of victims wished that the death
penalty be sought, while others did not. He stated that he was not
aware whether other district attorneys in his same office weighted
the desires of the family in the same manner that he did.
IL... S.1
BENSONETTA TIPTON LANE
Subscribed and sworn to before me,
this day of + 1983.
NOTARY PUBLIC
The Department of Yaw
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 856-3300
June, 1983
Mr. Robert H. Stroup
Attorney at Law
1515 Healey Building
57 Forsyth Street, N.W.
Atlanta, Georgia 30303
Re: McCleskey v. Zant, Civil Action No. C81-2434A
Dear Bob:
Enclosed please find a notice of deposition for Professor
Baldus. As we discussed in our telephone conversation, I
wanted to have the notice sent to protect our interests, as you
also did with your notices. I intend to discuss this with you
by telephone, but in case I do not get in touch with you, you
will note that the notice schedules the beginning of the
deposition for 2:00 p.m. on July 6, 1983. In checking the
plane flights, I had scme difficulty in scheduling flights to
be in Syracuse on the night before the sixth. Due to other
complications, I have to return from Baton Rouge to Atlanta on
the evening of July 5, 1983. Under these scheduling problems,
it was necessary for me to arrange a plane flight to Syracuse
on the morning of July 6, 1983. Therefore, I scheduled the
deposition beginning at 2:00 p.m. and plan to continue to July
7, 1983. I am sorry to have to break up the deposition over
two days, but it is quite conceivable that it would have been
necessary in any event. If these schedules present scheduling
problems for you, any other counsel or Professor Baldus, please
contact me and let me know. I also arranged to use the
conference room in the Attorney General's office in Syracuse,
New York, for the purposes of taking this deposition. The
address is listed in the notice of deposition. I hope this
will be convenient for all involved.
I have contacted Dr. Burford concerning taking his deposition
on July 5, 1983. He is agreeable to that date and does not
have a scheduling problem. He has also offered us the use of
his office to take the deposition. I am presenting that to you
as an option if you desire.
Mr. Robert H. Stroup
June 20, 1983
Page -2-
In regard to the deposition of Dr. Ratz, I would like to
request that we consider scheduling his deposition for June 30,
1983 and July 1, 1983 rather than July lst and July 2nd. As
you are aware, July 2nd is the Saturday of a holiday weekend,
and Dr. Katz will not be available on that date. I had
previously indicated to you that I had a hearing on June 30th,
but I have arranged for someone else to do the hearing for me
so that 1 could be free on that day for the deposition. If
this presents problems for you, please let me know, but it
would be preferable to schedule it in this manner. Dr. Katz is
available on June 30th and July lst.
As we agreed on the telephone, I will have Dr. Katz and Dr.
Burford present at the scheduled times without the necessity of
subpoenaes. I understand that, in return, you agree to have
Professor Baldus present at the scheduled time and place for
his deposition without the need of a subpoena.
I want to express my appreciation for you sending me the
updated preliminary analyses from Dr. Baldus. Although it may
be that this information was not requested, I would appreciate
you keeping me informed on future developments. I think this
will expedite matters considerably at the hearing in August.
Once again, thank you for your consideration in this regard.
Dr. Katz has not updated his report any further, but I will
send you any updated versions that we obtain.
Thank you for your time and consideration.
Sincerely,
PW ocey Bois oy Sa r/{C yi NeliasMmece baal
MARY BETH WESTMORELAND:
Assistant Attorney General
MBW/ mb
Enclosure
cc: John Charles Boger
Anthony G. Amsterdam
wr
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
Ve
WALTER D. ZANT,
SUPERINTENDENT,
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Respondent.
NOTICE OF DEPOSITION
TO: Robert H. Stroup
Attorney at Law
1515 Healey Building
57 Forsyth Street, N.W.
Atlanta, Georgia 30303
Please take notice that the Respondent in the above-styled
action, pursuant to leave of court previously granted and
pursuant to the order of the court filed June 3, 1983 extending
the period for discovery until July 11, 1983, will take the
deposition of Professor David C. Baldus, upon oral examination
pursuant to the Federal Rules of Civil Procedure and the Rules
Governing Section 2254 Cases in the United States District
Courts, before a notary public or before some other officer
authorized by law to administer oaths, at 393 East Washington
Street, Department of Law, 8th Floor, Syracuse, New York, on
July 6, 1983, beginning at 2:00 p.m. and continuing on July 7,
1983, beginning at 10:00 a.m.
Please take further notice that, pursuant to Rule 45(b) of
the Federal Rules of Civil Procedure, said deponent is
requested to bring with him all documents upon which the
deponent relies or refers to in formulating, substantiating or
explaining his analyses or opinions, including but not limited
to questionnaires and other raw data.
The oral examination will continue from day to day until
completed. You are invited to attend and examine.
This JA# day of June, 1983.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
ATA
yo 0. GORDON —F
irst Assistant Attorney General
CLRGT IN Bi
ILLIAM B. pene. RB,
Attorney General Senio RT
Yeon Beh ths brnare ln alo
MARY/BETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing pleading, prior to filing the
same, by depositing a copy thereof, postage prepaid, in
the United States Mail, properly addressed upon:
Robert H. Stroup
Attorney at Law
1515 Healey Building
57 Forsyth Street, N.W.
Atlanta, Georgia 30303
Jack Greenberg
John Charles Boger
James S. Liebman
10 Columbus Circle
New York, N.Y. 10019
Anthony G. Amsterdam
New York University Law School
40 Washington Square, South
New York, N.Y. 10012
This fA day of June, 1983
Ye 3 on ae y/o
MARY/ BETH WESTMORELAND
JOHN R. MYER 1515 HEALEY BUILDING
57 FORSYTH ST., N. W.
ROBERT H. STROUP ATLANTA, GEORGIA 30303
GARY FLACK
404/522-1934
ATTORNEYS AT LAW
June 20, 1983
BY HAND
Mary Beth Westmoreland, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
Re: McCleskey v. Zant, C. A. No. C81-02434Aa
Dear Mary Beth:
Enclosed you will find, as we discussed, deposition notices
for Dr. Katz and Dr. Burford. In light of vour reguest to
depose Dr. Baldus, we have noticed Dr. Katz for July 1 and
July 2 (as opposed to July 1 and July 5, as™we discussed on
the telephone Friday), and Dr. Burford for July 5 (as Oppos-
ed to July 6, as we proposed on Friday.
This would permit the taking of Dr. Baldus's deposition on
July 6 and if necessary, July 7. He is unavailable after
July. 7.
I look forward to hearing back from you as soon as you have
had an opportunity to clear these dates with your experts.
I am also enclosing a copy of an updated preliminary analysis
by Dr. Baldus. The study was delivered to my office this
morning. This is not his final report, or, to put it another
way, the final output from his study. He is continuing his
analysis of the data. Nonetheless, and noting also for the
record that the respondent has not requested that we produce
anything but the final copy of his report, we are providing
this study at this time in an effort to keep you updated.
Very truly yours,
Retxnt Rey
Robert H. Stroup
RHS/1
Encl.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
CIVIL ACTION FILE
Petitioner,
NO. C81-2434A
vs.
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
ald
NOTICE OF DEPOSITION
TO: MARY BETH WESTMORELAND, ESQ.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334,
Attorney for Respondent.
PLEASE TAKE NOTICE that the petitioner in the above-caption-
ed action, pursuant to leave of Court heretofore granted by order
dated June 3, 1983, will take the deposition of DR. ROGER LEWIS
BURFORD, upon oral examination pursuant to the Federal Rules of
Civil Procedure and the Rules Governing Section 2254 Cases in the
United States District Courts, before a notary public or before
some other officer authorized by law to administer oaths, in the
United States District Courthouse in Baton Rouge, Louisiana, on
July 5, 1983, commencing at 10:00 a.m.
PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 45(b) of the
Federal Rules of Civil Procedure, said deponent is requested to
bring with him all documents upon which the deponent relies or
refers in formulating, substantiating or explaining his analyses
or opinions, but not including those documents supplied by peti-
tioner to respondent.
The oral examination will continue from day to day until
completed. You are invited to attend and cross-examine.
This 20th day of June, 1983.
7
Islet 3 <x y ot XC R10000
ROBERT H, STROUP f
1515 Healey Building
PR Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy
of the within and foregoing "Notice of Deposition" upon
Mary Beth Westmoreland, Esqg., Assistant Attorney General,
by personally leaving a copy of said notice at her office,
132 State Judicial Building, Atlanta, Georgia, this 20th
day of June, 1983.
=
A
TT, TY Seber Hrscey
ROBERT H. STROUP /
4 ®
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
CIVIL. ACTION FILE
Petitioner,
NO. C81-2434A
VS.
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
NOTICE OF DEPOSITION
TO: MARY BETH WESTMORELAND, ESQ.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334,
Attorney for Respondent.
PLEASE TAKE NOTICE that the petitioner in the above-caption-
ed action, pursuant to leave of court heretofore granted by
order dated June 3, 1983, will take the deposition of DR. JOSEPH
LORNE KATZ, upon oral examination pursuant to the Federal Rules of
Civil Procedure and the Rules Governing Section 2254 Cases in the
United States District Courts, before a notary public or before some
other officer authorized by law to administer oaths, in the offices
of Robert H. Stroup, Esq., 1515 Healey Building, Atlanta, Georgia
30303, on July 1 and 2, 1983, commencing at 10:00 a.m.
PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 45(b) of the
Federal Rules of Civil Procedure, said deponent is requested to bring
® ®
with him all documents upon which the deponent relies or refers
in formulating, substantiating or explaining his analyses or
opinions, but not including those documents supplied by petitioner
to respondent. |
The oral examination will continue from day to day until
completed. You are invited to attend and cross examine.
This 20th day '6f June, 1983.
a A’ ~~
Reber t 2+ Eagess
ROBERT H. STROUP [
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy
of the within and foregoing "Notice of Deposition" upon
Mary Beth Westmoreland, Esqg., Assistant Attorney General,
by personally leaving a copy of said AoLidh at her office,
132 State Judicial Building, Atlanta, Georgia, this 20th
day of June; 1983,
Gs A ,
| in: TN JE. =~ olin 3h Frey
ROBERT H. STROUP [
4 Qe
The Department of Lato
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3200
June 14, 1983
Mr. Robert H. Stroup
1515 Healey Building
57 Forsyth Street, N.W.
Atlanta, Georgia 30303
Re: McCleskey v. Zant, Civil Action No. C81-02434A
Dear Mr. Stroup:
This is to inform you that the above-styled case has been
reassigned to me for handling in this office. Mr. Dumich is no
longer with our office so I will be taking over this case at
this time. I am enclosing at this time the answers to the
interrogatories which were granted by the district court. You
will note that the affidavit attached to the interrogatories
has not been executed. This is due to the fact that Mr. Zant
is not available at this time to sign the affidavit. He is out
of town at this time, but as soon as he returns I will have him
execute the affidavit and send you a copy of the
interrogatories with the executed affidavit and make any
changes that may be necessary. I have gone ahead with this
method so that I might comply with the time limitations set
forth by the court and so as not to cause you any inconvenience
by any delay.
I was uncertain as to which counsel should be receiving this
information, but assume since the recent correspondence I
received was from you that it would be appropriate to serve
these answers on you at this time. I assume that you will see
that Mr. Boger and remaining counsel obtain a copy of this
information.
I also understand that we were supposed to discuss one of the
request for production of documents pursuant to the order of
the court. I have not had the opportunity to see if the
information might be available from the Supreme Court, but I
will do so in the immediate future. Please contact me so that
we can discuss this issue. Also, when you decide if you intend
to take depositions of any individuals, please call me so that
: 9 ®
Mr. Robert H. Stroup
June 14, 1983
Page-2-
we can set up a time that would be mutually convenient in order
to take the depositions. I see no reason why we cannot work
out a time that is convenient for both of our schedules as well
as the schedules of any witnesses that you wish to depose.
I hope that the answers to the interrogatories are
satisfactory. As usual, we will update the answers if any
information becomes available at a later time and as our
experts continue their analysis. I will emphasize again that
the report attached is merely a preliminary report and does not
include final conclusions or opinions by these experts. As
soon as any such final conclusions become available, I will
forward them to you.
Thank you for your time and consideration in this matter.
Sincerely,
J Py 7 / g ”
i787 4 fF / / tS, ” b~ 3 } » ra /
Cie XHAAL eas 7 NLL cla YY,
MARY BETH WESTMORELAND
Assistant Attorney General
MBW/ mb
Enclosures
cc: John Charles Boger
10 Columbus Circle
New York, N.Y. 10019
Anthony G. Amsterdam
New York University Law School
40 Washington Square South
New York, N.Y. 10012
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
Ve
WALTER D. ZANT, WARDEN,
HABEAS CORPUS
*
k
X
o
F
Ok
¥
%
OF
¥
Respondent.
RESPONDENT'S ANSWERS TO ~~
PETITIONER'S FIRST INTERROGATORIES
Pursuant to Petitioner's motion for discovery and this
Court's order of June 2, 1933, granting such discovery and
granting certain interrogatories, Respondent Zant submits the
following answers to these interrogatories, by showing and
stating the following:
3.
In response to Interrogatory No. 1, Respondent Zant states
the following: Respondent anticipates the possibility of using
two expert witnesses as testifying experts. The first possible
expert witness is Joseph Lorne Katz and the second is Roger
Lewis Burford. Attached to these answers are copies of present
curriculum vitae as well as bibliographies of publications.
Dr. Rate is expected to tegtity concerning his in depth
analysis of the report of Professor David C. Baldus and the
methods that he has used to study the analyses of Professor
Baldus. Dr. Burford has assisted as a consulting expert and is
expected to testify as to his opinions concerning the methods
of analysis used by Professor Baldus and also as to the
conclusions reached by Professor Baldus.
2.
In response to Interrogatory No. 2, Respondent Zant states
the following:
Respondent Zant has not relied upon any other expert
—
witnesses concerning this matter.
Se
In response to Interrogatory No. 3, Respondent Zant states
the following:
In response to this interrogatory, Respondent Zant has
attached a copy of a preliminary report compiled by Dr. Joseph
Katz which sets forth a summation of his criticisms and the
results of his studies concerning the analyses, conclusions and
reports of Professor Baldus. This report is orelinihiry in
nature only and pr. Hitr is continuing to engage in further
analyses. As additional information becomes available,
Respondent will supplement these answers at that time. Please
note that this report is preliminary in nature only and does
not include all criticisms, conclusions or opinions that may be
developed prior to the time of the hearing. As this is an on
going process, Respondent will make every effort to keep
counsel for the Petitioner updated. As of this date, the
preliminary report involves conclusions reached on the basis of
data furnished by Professor Baldus and not on the basis of any
outside data except that known by counsel through contact with
this case or the transcripts of a very limited number of other
cases.
4,
In response to Interrogatory No. 4, Respondent Zant states
the following:
Respondent would refer to the attached Drelininayy rept
in response to this interrogatory as well. This is the only
study or report being used by the Respondent at the current
time and the only documents used by the Respondent in preparing
this report came from the data presented to the Respondent by
Professor Baldus. Once again, the report is preliminary in
nature and any further objections or criticisms which arise
will be used to supplement the answers to these interrogatories
as soon as this information becomes available.
: 5. and 6.
Respondent does not respond to these interrogatories at
this time as the court has not ruled on whether these
interrogatories should be answered. Respondent will awake for
the order of the court before answering these interrogatories.
3
- ow
7.
Respondent does not answer this interrogatory as it was
denied by the court.
8.
In response to Interrogatory No. 8, Respondent states the
following:
Pursuant to the order of this Court granting discovery,
Respondent has checked to see if the information requested in
Interrogatory No. 8 is available. The Attorney General does
not have any such information either complied or maintained,
except insofar as the office might have Erangorints available
from prior appeals to the Supreme Court of Georgia. No
separate information is maintained by the office concerning
names of all offenders convicted of murder or manslaughter and
. in particular, no separate information is maintained concerning
the victim.
Counsel for the Respondent has consulted with the
Department of Offender Rehabilitation and determined as well
that the Department. does not have the information requested.
The computerized Eecorad at the Department of Offender
Rehablliration do not have any data on the victims of the
crimes so that it would be impossible to determine from the
computerized data whether the victim had been a law enforcement
officer. The Department ‘of Offender Rehabilitation does have
computerized data concerning murder and manslaughter
convictions; however, the older records are inaccurate and not
complete. The more recent records would be relatively
accurate. This information could be obtained, but it would
only reflect all murder and manslaughter convictions without
breaking them down as to the status of the victim. As this does
not correspond with the information requested, it has not been
provided. =
Respondent has further checked on this matter with the
Supreme Court of Georgia. That Court only has records before
it pertaining to cases that have been appealed. to that court.
As only murder cases are appealed to that court, the court
would not have records available on manslaughter convictions.
The court does not have access to all murder convictions in the
state, as not all murder convictions are appealed.
Furthermore, Respondent has no way £6 obtain this information
from the court, but this information would have to be obtained
directly from the Supreme Court of Georgia. The court is not
inclined to release its records to the Respondent for this
purpose.
In conclusion, $4: response to this interrogatory,
Respondaht asserts that the specific information requested by
the Petitioner is simply not available as no office known to
the Respondent has compiled information concerning all murder
and manslaughter convictions in which the victim was a law
enforcement officer. . It might be possible for Respondent to
have someone search through written documents available at the
Department of Offender Rehabilitation to see if the victim is
indicated in some of these documents, however it would be
exceedingly time consuming and expensive to compile this
information, and it is uncertain as to whether the information
is accurate or whether it would exist in all cases. Therefore,
Respondent declines to answer this interrogatory further at
this time, but is willing to cooperate to the extent possible
in order to comply with the order of the Court.
9.. 18.
No response is made to Interrogatory Nos. 9 - 18 as the
court denied these interrogatories as being irrelevant.
WHEREFORE, having made these responses to Petitioner's
interrogatories, Respondent Zant prays that these answers be
deemed sufficient and that no further response be required from
said Respondent.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
Mh tn 0. Coen _
RION O. GORDON
rst Assistant Se oi General
Fail
A alr
pm B. taf JR}
Senifor Assista t“At¥orney General
{
{ A) A J 1 / Fe 4 i
(free, AIL slates fr ael
MARY HETH WESTMORELAND
Assistant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
STATE OF GEORGIA
COUNTY OF FULTON
A PPFPIDAV IT
Personally appeared before me, the undersigned officer,
duly authorized to adminster oaths, Walter D. Zant, who upon
first being duly sworn, deposes and states that the answers
given by him in response to Petitioner's interrogatories are
true and correct to the best of his knowledge and belief.
a
WALTER D. ZANT
Sworn to and subscribed before me
this day of rs 1983,
. NOTARY PUBLIC
My commission expires:
.
bai <4
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served the within
and foregoing pleading, prior to filing the same, by depositing
a copy thereof, postage prepaid, in the United States Mail,
properly addressed upon:
Mr. Robert H. Stroup
1515 Healey Building
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
This f/f Aay of June, 1983.
A 7 # / / ; g /
7 Jeet / A) 4A z ail, / Ls zl
MARY BETH WESTMORELAND
JOHN R. MYER 1515 HEALEY BUILDING
57 FORSYTH ST., N. W.
ROBERT H. STROUP ATLANTA, GEORGIA 30303
GARY FLACK
404/522-1934
ATTORNEYS AT LAW
June 9, 1983
Honorable Owen J. Forrester
United States District Judge
Richard Russell Building
75 Spring Street, S. W.
Atlanta, Georgia 30335
Re: McCleskey v. Zant, Civil Action File No. C81-2434A
Dear Judge Forrester:
Pursuant to this Court's recent order, filed June 3, 1983, and
received by petitioner's counsel on June 6, 1983, petitioner
is filing Appendix A and Appendix B which was previously mis-
takenly omitted from petitioner's request for discovery.
Petitioner hereby renews his request for discovery sought in
Interrogatories 5 & 6, as previously filed, with the accompany-
ing appendices.
In addition to Appendix A and B, enclosed, petitioner is also
enclosing a "Codebook" which identifies the additional informa-
tion contained in Appendix A and B, over and beyond the defen-
dants' names. This information should assist the State in
providing answers to the two interrogatories.
Very truly yours,
Robert MN. Frwy
Robert H. Stroup
RHS/1
Encls.
cc: Ben H. Carter, Clerk
Nicholas G. Dumich, Esq.
® sR ACUSE UNIVERSITY
COLLEGE OF LAW / Center for Interdisciplinary Legal Studies
ERNEST I. WHITE HALL / SYRACUSE, NEW YORK 13210
(315) 423-4108
TO: Jack Boger
FROM: Dave Baldus
RE: Petitioner's First Interrogatories
DATE: February 9, 1983
Enclosed are three lists of cases with missing
information it would be good to have.
List A. Cases where the victim's race is
unknown.
List B. Murder convictions where it is un-
known if a penalty trial was held.
List C. Cases where it is unknown whether
the prosecutor offered or agreed
to a plea bargain
The small "Codebook" tells what the variables are in
the columns on Lists A, B and C.
The interrogatory questions should be as follows:
A. Por cases in List A: What was the race of
the victim(s) in this
case?
B. For cases in List B: Was there a penalty
trial held in this
murder case?
C. For cases in List C: (1) Was a plea bargain
offered or agreed to
by the prosecutor?
(a) Yes
(bh) . No
Memo
Jack Boger
February 9, 1983
Page 2
(2) If the prosecutor
offered or agreed to a
plea bargain, to what
crime was the defendant
asked to plead guilty?
(3) If the prosecutor
offered or agreed to a
plea bargain, did the
defendant agree to it?
[The third of these questions is not central to our case
at this point; the first two are.]
Also enclosed is a draft of a decision tree of
the type suggested by Hans Zeisel that we should event-
ually serve on Dumich as part of a request for admiss-
ions.
DB/ckb
Enclosures
P.S. I also recommend that we ask Mr. Dumich for the
names, date, place, sentence etc. of all defen-
dants convicted of killing a law officer in the
line of duty. We have information on over 30 such
people, but could use more.
Codebook
LDF4 on Date of Offense
LDF4B = Date of Sentence
LDFX3F = Circuit of Conviction
LDF4C me County of Conviction
LDF5 = Indictment Number
LDF8 = Presiding Judge's Last Name, lst Initial
LDF9 = District Attorney's Last Name, lst Initial
The above codings pertain to Lists A, B and C.
Attached to this page are the lists which will
tell you the name of the county that corresponds
to each number under the variable list of LDF4C,
and the name of the circuit that corresponds to
each number under the variable list of LDFX3F.
County
WO
0
0
3
O
x
W
N
10
Appling
Atkinson
Bacon
Baker
Baldwin
Banks
Barrow
Bartow
Ben Hill
Berrien
Bibb
Bleckley
Brantley
Brooks
Bryan
Bulloch
Burke
Butts
Calhoun
Camden
Candler
Carroll
Catoosa
Charlton
Chatham
Chattahoochee
Chattooga
Cherokee
Clarke
Clay
Clayton
Clinch
Cobb
Coffee
Colquitt
Columbia
Cook
Coweta
Crawford
Crisp
Dade
Dawson
Decatur
DeKalb
Dodge
Dooly
Dougherty
Douglas
Early
Fchols
(1
APPENDIX TI
a) COUNTY AND CIRCUIT CODES
Circulr County. -
1
1
-
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
00
Effingham
Elbert
Emanuel
Evans
Fannin
Fayette
Floyd
Forsyth
Franklin
Fulton
Gilmer
Glascock
Glynn
Gordon
Grady
Greene
Gwinnett
Habersham
Hall
Hancock
Haralson
Harris
Hart
Heard
Henry
Houston
Irwin
Jackson
Jasper
Jeff Davis
Jefferson
Jenkins
Johnson
Jones
Lamar
Lanier
Laurens
Lee
Liberty
Lincoln
Long
Lowndes
Lumpkin
Macon
madison
Marion
Mchuffie
McIntosh
Meriwether
M1 |
Miller
Circuit
30
27
24
4
6
19
33
6
237
County Circuit County Circult
101 Mitchell 34 136 Thomas 35
102 Monroe 18 137 Tift: 39
103 Montgomery 29 138 Toombs 24
104 Morgan 28 139 Towns 25
105 Murray 312 140 Treutlen 16
106 Muscogee 8 141 Troup 14
107 Newton 2 142 Turner 39
168 Oconee 42 143 Twiggs 16
109 Oglethorpe 27 144 Union 25
110 Paulding 38 145 Upson 19
111 Peach 23 146 Walker 22
112 Pickens 6 147 Walton 2
3113 Pierce 41 148 Ware 41
114 Pike 19 149 Warren 40
115 Polk 38 150 Washington 24
116 Pulaski 29 151 Wayne 7
11 Putnam 28 152 Webster 36
118 Quitman 31 153 Wheeler 29
119 Rabun 25 154 White 26
120 Randolph 31 155 Whitfield 12
121 Richmond 5 --156 Vilcox 13
322 Rickdale 37 157 Wilkes 40
323 Schley 36 158 Wilkinson 28
124 Screven 30 159 Worth 39
125 Seminole 31 999 Out of State
126 Spalding 39 [998 also appears to be
127 Stephens 25 to be out of state]
128 Stewart 36
125 Sumter 36
13 Talbot 8
131 Taliaferro 40
1372 Tattnall 4
133 Taylor 8
134 Telfair 29
135 Terrell 31
2
Code Circuit
1 Alapaha
2 Atkinson
10 rrien
32 Clinch
37 Cook
86 Lanier
2 Alcon A%
ode County
107 Newton
147 Walton
3 Atlanta
Code County
60 Fulton
4 Atlantic
15 Bryan
54 Evans
89 Liberty
81 long
98 McIntosh
132 Tattnall
5 Augusta
Code County
17 Burke
36 Columbia
21 Richmond
6 Blue Ridge
Code County
28 Cherokee
95 Fannin
58 Forsyth
61 Gilmer
32 Pickens
Code Circuit
7 Brunswick
Code County
1 Appling
20 Camden
63 Glynn
80 Jeff Davis
151 Wayne
8 Chattahoochee
Code County
26 Chattahoochee
72 Harris
96 Marion
106 Muscogee
130 Tallxot
133 Taylor
9 Cherokee
Code County
8 Bartow
64 Gordon
10 Clayton
Code Courty
31 Clayton
11 Cob
Code County
33 Cobb
12 Conasauga
Code County
Murray
155 Vhitfield
13 Cordele
Code County
9 Ben Hill
40 Crisp
46 Dooly
156 Wilcox
(1b) CIRCUIT AND COUNTY CODES
Code: Circuit
14 Coweta
Code County
22 Carroll
38 Coweta
74 Heard
99 Meriwether
141 Troup
15 Dougherty
Code County
47 Dougherty
16 Dublin
Code County
83 Johnson
87 Laurens
140 Treutlin
143 Twiggs
37 Eastern
Code County
25 Chatham
18 Flint
Code County
18 Butts
75 Henry
85 Lamar
102 Monroe
19 Griffin
Code County
56 Fayette
114 Pike
126 Spalding
145 Upson
20 Gwinnett
Code County
67 winnett
Circuit
21 Houston
Code County
76 Houston
22 Lookout Mt.
Code County
23 -Catoosa
27 Chattooga
41 Dace
146 Walker
23 Macon
Code County
11 Bibb
39 Crawford
31 Peach
24 Middle
Code County
21 Candler
53 Frmanuel
81 Jefferson
138 Toombs
150 Washington
25 Mountain
Code County
68 Habersham
119 Rabun
127 Stephens
139 Towns
144 Union
26 Nertheastern
Code County
42 Dawson
69 Hall
93 Lumpkin
154 White
ode ircuit
27 Northern
Code County
52 Elbert
595 Franklin
73 Hart
95 Madison
109 Oglethorpe
28 Ocmulgee
Code County
5 Baldwin
66 Green
70 Hancock
79 Jasper
84 Jones
104 Morgan
117 Putnam
158 Wilkinson
29 Cconee
Code County
12 Bleckley
45 Dodge
103 Montgomery
116 Pulaski
134 Telfair
353 Wheeler
30 Ogeechee
Code County
16 Bulloch
51 Effingham
*, Jenkins
124 Screven
31 Pataula
Code County
30. .Clay
49 Farly
100 Miller
118 Quitman
120 Randolph
125 Seminole
135 Terrell
A
-
Code Circuit
32 Piedmont
Code County
6 Banks
7 Barrow
78 Jackson
33 Rome
Code County
57 Floyd
34 South Georgia
Code County
4 Baker
19 Calhoun
43 Decatur
65 Grady
101 Mitchell
35 Southern
Code County
14 Brooks
35 Colquitt
50 Echols
92 Lowndes
136 Thomas
36 Southwestern
Code County
88 Lee
94 Macon
12 Schley
128 Stewart
12 Sumter
152 Webster
37 Stone Mountain
Circuit
40
41
Tallapoosa
-
Code County
48 Douglas
71 Haralson
110 Pauldin
115 Polk
Tifton
Code County
73 Irwin
137 Tilt
142 Turner
159 Worth
Toombs
Code County
62 Glascock
30 Lincoln
G7 McDuffie
131 Taliaferro
149 Warren
147 Wilkes
Waycross
Code County
3 Bacon
13 Brantley
24 Charlton
34 Coffee
113 Pierce
148 Ware
29 Clarke
108 Occnee
=
~~
LIST A
DD C
F L D L
N L D F 5) L L L
Q A =D F X F D o D
8 M F 4 3 -4 F rp F
Ss £ 4 B F C 5 8 3
1 FATE, JAY MCCLU A 16JAN1978 18 102
2 GAYNOR, JAMES LL 11MAYI974 23AUGI1S74 16 140 912 WHITE, W ———AYES; A
3 SMITH, ABE SR 07 NAR1S75 O06MAY1975 35 136 5618 HORKAN, G COLE, H
4 OYE, WILLIE ED 02JUNLIS7S 1S5SEP19S75 27 52 938 JOHNSON, C
5 HARRIGNTON AL 20NOV1976 O04JANL1O77 3 60 A33707 WILLIAMS L. SLATON
6 FOSTER, MARCUS ~~ 10APR1 S77 20MAY1977 39 77 5225 FOREHAND, W PITTMAN, T
7 CURTIS: JOHNNY - 24NOV1977 10JAN1978 .9 64 23 WHITE, J CRAWFORD, C
8 MCCOYs TOMMY 06 AUGL 979 130CTiG79 28 104 5292 THOMPSON, H
S BARGERON ROBERT 050CT1973 07JAN1974 4 89 1594 P CASWELL J UNDERWOOD
10 ALLEN FREEMAN ~~ I5NOV1S73 0SFEBI74 2 147 10591 T RIDGWAY J STRAUSS
K 11 SMITH, JAMES MA 15JULL1974 070CT1974 3 60 A=22710 LANGFORD SLATON, L
12 WALKER VIRGIL 03JUL1976 O9FEB1I977 16 87 2770 W WHITE B HAYES
13 SIMPSON, JOSEPH A 140CT1974 3 60 A-22843
14 DAVIS, MICHAEL rt OUAPRIOIE TS 60 A=-30569 SLATDN, L
15 GRANT SRes MILA A 250CT1973 31 100
16 POUNDS, JAMES L A 13NOV1IO76 1 10 76-360
17 PERAULT + JOSEPH A 1BMARI1I977 27 52 1025
18 TURMAN, OTIS AL ATT27IULID7S ZT 521080
19 THOMAS, FRED A 17JUL 1973 ‘36 ‘128
20 BENTON CLINTON 270CT1973 14JAN1974 2 107 2420 T RIDGWAY J STRAUSS
21 RICE RUBY 11SEP1973 28NCV1S73 3 60 A18502 S MCKENZIE L SLATON
22 "BURCHFIELDs BIL 05JUL1973 26DEC1973 "12 155 8249 VINING, R BRANTLEY, S
23 FRAZIER THCMAS 16NOV1973 23APRI974 34 101 615 R CULPEPPER A CATO
24 MITCHELL, FREDD O09APRIS?73 12JUL1373 37 44 15555 HJBERT, H REL
25 BUTLER, VIRGINI 28JUL1973 19APR1 S74 38 110 877} WINN, D PERREN, J
26 "HARRIS, H G AKA ~05JUL1973 26SEP1973 10 31 8-12401 MILLER, M BRADLEY, J
27 PETERMAN, JOHNN 14DEC1973 26SEP1574 31 118 1238 GEER, W FOSTER, R
28 MATHIS, TONY 14NOV 1973 30JAN1G74 3 60 A~19342 TIOWELL SL ATON, L
29 WATSON CALVIN 24AUGL S74 27JANLG7S5 8 72 3573 J LAND E WHISNANT
30 CARPENTER HOMER ~~ 08DEC1974 130CT1975 10 31 813780 H BANK E C LEATHERS
31 KING, RANDOLPH 120CT1574 O4DEC1974 28 104 4263 JACKSON, G BRILEYs J
32 MARSHALL, JOHNN O7MAR1974 1BDECi1374 39 137 13066 GRAY, J FOREHAND, W
33 SHIPMAN, LEON O1MAR1IO74 19JUL1974 12 155 B680 TEMPLES, C BRANTLEY, S
34 JUDY, MILDRED B ~25JUN1974 “12SEP1974 11 33 6343 BULLARD» J DARDEN, 6
35 SMITH, PATRICIA 04 AUGL974 25JAN1975 13 9 730 ICMURRAY, JR W TURK, D
36 WESTER FLOYD 02MAR1975 13JUN1S75 11 33 750179 L HAMES G DARDEN
37 JACKSON GLORIA 14MAR1975 O9DEC1575 17 25 24061 G DLIVER J CALHOUN
38 TENNYSON, LESLE O03MAY1975 17DECI375 24 81715 MCMILLAN, W THOMPSON, R
39 WOOD, WILLIE ED 11MAY1975 10NOVIO?5 27 109 B=2042 WILLIFORD, J JOHNSON, C
40 SIMMONS, RALPH 16AUG1975 240CT1S75 35 136 5687 CALHDUN, M COLE, L
41 WASHINGTON, CLI O0SMAR1O75 20JUN1975 36 S4 2687 BLANKS» W MORRIS, C
42 BARBER MAPLE 07 JAN1976 22JAN1IS76 3 60 TA2983) E HOLY L SLATON
43 WAL TONs ALTON 18S5EP1976 21FER1977 36 123 762 BLANKS, W MORRIS, C
44 CURTIS. DIANE 15JAN1976 O7FERLI76 13 40 14236 MC MURRAY TURK
45 MORALEZ, HUMBER 26JUNLS976 O01SEP1976 36 129 1268 BLANKS, W MORRIS, C
46 JACKSON, WA SH O5MAR1 977 11AUG1977 1 32 773% LOTT, H BARNIELL, T
47 CCLLINS, SPENCE 25APR1977 10NOV!377 4: 132 77-64 HARVEY, J CHENEY, D
48 PETERSON CLEVEL 06DEC1977 07AUG1979 15 47 583138 A KELLEY H HIND
49 FINCH TOMMY 15MAR1978 26APR1S78 3 60 A39557 C WOFFORD L SL ATDN
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MATTHEWS, JAMES
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LIST A (CON'T)
01SEP 1978
30JANL O78
26 1UN19O79
07JUNL1S79 |
125EP137¢
27INCV1S79
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10SEPRP187S
04SERPLIST79
14APR1980
23MAY1980
300CT13873
31JAN1979
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LIST B
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1 013 SEAY, WILLIE JA 10NOViIQ73 10NDV1IO7S5 21° 120 8479 GEER, W
2-239 SAMPLES, RICHY ~~ 13MAY1673 05SEP1973 28 115 1393 WINN, D PEPREN, J
3 302 HENRY, MILTON L 10MARLIO973 15JUN1I973 3 60 A-16496 ALVERSON SLATON, L
4 321 GANDY, JESSE JA 20JANIS74 17JUL1974 39 142 3939 GRAY, J FOREHAND, W
5 334 DODSIN, JESS 08BMA Y1 974 27AUGl1S74 22 57. 3102 COK ER, R HILL, P
6 361 CALLOWAY, KING 23JUN1974 ~OSDEC1IS74 31135 1963 GREER, W FOSTER, R
7 3%1 BROWN, GEORGE M 16NOV1974 1 8SMARLIS7S 17 25 23595 HARRISON, D SYAN, A
8 419 COLEMAN, ALBERT 22SEP1974 OSMAY1975 16 B87 2526 WHITE, W HAYES, B
‘9 383 DIXON, B8088Y 15JAN1975 11MAR1975 32 78 115023 DUNAHOO, M HANCOCK y N
: 10 S506 BCUTTRY, LEONAR 160CT1375 1SMAR1976 40 37 3354 STEVENS, R GOOL SBY, K
# 11° E24 HAYNES, HORACE 06AUGL1 976 + 25 JAN1IS79 10 3: B-14910 MILLER, M AP ADLEY, J
12 535 FLETCHER EDDIE 26MAY1976 23JUN1IS76 19 126 A514 A WHALEN JR A MILLER
13 584 GGLDMAN GARY 27MAY1376 23JULIS37&6 12 155 10385 C TEMPLE 3S BRANTLEY
14 €34 WALKER VIRGIL 03 JULL1ST76 OSFEBIST77 16 BY 2770 W WHITE B HAYES
15 DO02 YOUNG CHARLES 02SEP1977 21MAR1378 22 23 £258 R COKER w CAMPBELL
16 K&4 VINSON, LOUIS 05SEP1377 22N0OV1377 37 44 23187 HENLEY. C PETERS, J
17 E04 ALLEN, MILTON 25 JUL1978 27SEP1978 . 3 60 A-~41188 HOLY, E SLATON, L
18 E08 WILSINs MELVIN 23SEP1978 23MAY197S 3°60 A-42066 ALVERSOCN SLAYTON, ©
19 E47 BARNES ERNEST 11FEB1978 28MAR1II7S 28 70 98223 J DUKE J BRILEY
20 E10 SHIRLEY BOBBY 02 JUL1979 18SEP1970Q 3 60 A45760 O WILL IAMS L SLATON
21 E12 JONES, JOEY LAV 31JUL1975 050CT1979 3 60 A-46056 ALVERSON, L SLATON, L
22 376 LUMPKIN, MICHAE 05DECL974 11FEB1975 37 44 —10873 ~PEELERy C RELL, R
23 094 DANIELS, JAMES 18MAY 1973 170CT1574 16 143 5 WHITE, W HAYES, 8
24 187 ASKEW DAVID LEE 30MAR1S73 11APR1S73 14 22 1872129 L KNIGHT E FLEMING
25 232 THOMPSON, ROBER 29MARLIO73 21AUGLIS73 37 44 15459 TILLMAN, C PEEK
26 233 "BAKER WILLIAM 07 JUL1S73 07SEP1973 18 78 9540 TH SOSEREE E MCGARITY
27 263 BARGERON ROBERT O0S50CT1973 07JAN1IO74 4 82 1594 P' CASWELL J UNDERWOOD
28 272 ALLEN FREEMAN 1SNOV1I973 O0OSFEB1374 2° 147 108594 T RIDGWAY J STRAUSS
26 316 PIERSON, GEORGE 10AUG1973 17JUL1974 8 106 33627 LAND, J WHISNANT, E
30 041 BANKS MATTIE 17MAR1974 ~13AUG1974 3 60 TA21114 ALVERSON L SLATON
31 326 HUNTER, CHARLIE 04JUL1974 1S5AUGL1974 36 123 726 MARSHALL, T MORRIS, C
32 337 DAWSON, EDDIE C 30JUL1974 24SEP1974 13 46 6012 MCMUFRAY, W JR TURK, D
w» 33 341 SMITH, JAMES MA . 15JUL1974 O070CT1S74 3 60 A=22710 LANGFORD SLATON, L
34 343 FOX» RALPH HOWA DO3IMAYL S74 ~020CT1974 26 154 11052 “BLACKSHEAR, J BROWN, G JR
35 351 HAWKINS, JR De¥W 20JUNIO74 14NCV1IO74 36 94 2653 BLANKS, W MORRIS, C
356 353 O'KELLEYs GOLDO O0OSSEP1974 26NCVIO7T4 42 29 12832 BARROW, J GORDON, H
37 382 SMITHe RICHARD 130CT 1974 O023MAR1IS75 37 44 18085 PEELERs C JR
38 874 BELISFF, FRANK 23APR1974 T0S5AUGI974 39 159 8660 HORNE, 0 FOREHAND, W
39 C92 WITHROWs KIM GR 27DEC1975 1 9APR1979 ve! 64 72 WHITE, J CRAWFORD, C
40 417 JONES, CASTERDA 19JANL 975 30APR1975 27 109 8-2010 WILL IFORD, J JOHNSON, C
41 43C WATTS, GARY 06 APR19O75 10SEP1O75 37 44 1894 PEELER, JR C PEAK, R
42 454 BERRYMAN DAVID C3AUG1IG75 25N0OV1S7S 3 60 A28213 G TIDWELL L. SLATON
43 483 LABON, WILLIE H 22JUL1975 O3FEB1I976 37 44 15772 NOR VELL PEEK
44 486 STEWART, JOSEPH 12FEBLG75 26JANIG76 21 76 10501 HUNT 5 W PACE, 5
45 521 GIBBONS, WILLIE 020CT1975 18MAY1S76 24 ay 3 MCMILLAN, W THOMPSON, H
46 B79 GARTMAN PATRICK 24MAR1975 02MAY1S7S5 28 70 $534 J DAKE J BRILEY
47 G25 HARRELL, LAMAR 24 JUL1Q75 070CT1975 34 43 2G5-F CULPEPPER, R CATO, A
48 522 COPELAND CARLOS 11MAY1976 27MAY1S76 36 129 1237 Ww BLANKS C MORRIS
4% S588 ROBERTSON ERIC 12JUN1976 17AUGL1976 23 11 17643 H BELL Ww JOHNSON
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31JUL1976 12NOV 19786
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11 JUN1977 14SEPL1OT7
07JAN1978 15SAUG1978
18MAR1975 09JAN1976
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1 074 FLOYD, GARY MIC 12DEC1973 26MAR1IS74 3 50 A-19628 SHAW, C SLATON, L
2 250A WARD, ECWARD JR 28JUN1973 16APR1976 37 44 15630 TILLMAN, C LEIPOLD, C
3 265 ISAACS, CARL JU 14MAY1973 03JANiIS74 31 125 GEER, W FOSTER, R
4 307 JARRELL, DAVID 24DEC1973 O08MARLI974 20 67 9517 MERRITT, R HUFF, 8B
5 C66 ALDERMAN, JACK 21SEP1974 18JUN1375 17 25 23498 CHEATHAM, F DREW, L
6 Z08 SPROUSE, JERRY 21JUL197%4 27NOV1IS74 17 25 23145 OLIVER, G
7 955A DAVIS CURF 2D 19JUL 1974 18JUN1S77 14 141 588-118 KNIGHT L LEE W JR
8 052 SHAW JILL CLAUD 31JAN1975 17JUN1S75 37 44 18352 ALLEN T PEEK
S 581 BLAKE, JOSEPH J I5NOV1O75 14FEB1976 17 25 24923 RYAN, A
10 SS1 DRAKE, HENRY AR OSDEC1375 09JANLIS7?7 27 ©5 5972 GRANT, W HUFF, B
11 D36 GATES, JOHNNY L 30NOV1976 30AUGL377 8 106 38335 LAND, J SMI TH, W
12 516 LAMB, RANDALL R OS5FEB1976 28APR1976 11 33 76-0120 RAVEN, H DARDEN, G
13 704 SPIVEY, RONALD 2BDEC1976 2SJUN1S77 8 106 38328 DAVIS, J WHISNANT, E
14 753 FLEMING SON 11FEBL1376 25JAN1977 1 86 76138 LOTT NEUGENT V
15 753A FLEMING SON H 11FEBLO76 15JUN1S78 1 86 76-138 LOTT H NEUGENT V
16 958 REDD, BOB 26JAN1976 1 0FEB1977 5 121 31 FULCHER, E ALLEN, R
17 358A REDD BOB 2D 26JAN1976 1OFEB1977 § 121 31 FUL CHER ALLEN RICHARD E
18 017 AMADEO, TONY 8B 29SEP1977 29NOV1977 28 117 B423 DUKE, J BRILEY, J
19 Z15A GODFREY RBT 2D 20SEP1977 20NOV1380 38 115 WINN DAN
20 776 HARDY, BILLY 30JUL 1977 1B8JANLOS7R 32 E 5446 BROOKS, J HANCOCK, N
21 777 HARDY, KENNETH 30JULL1977 L8JANLIG78 32 6 5446 BROOKS, J HANCOCK, N
22-860 HAMILTON, PAUL 1aMAY1$77 01AUG1S78 17 25 27002 CHEATHAM, F
23 Z17 COFIELD»s FABIAN 27JAN1979 O0BSEP1979 37 44 25-9395 HENDON, E JP PETERS, J
24 293 PARROTT, KEITER 02DEC1973 02FEBIG74 28 66 50656 JACKSON, G BRILEY, J
25 371 TURNER RUDOLPH 24AUG1973 2SJAN1G75 35 35 5223 HORKAN A JR COLE H
26 434 BURKE, CHARLES 14DEC1973 20JUN1S74 22 146 B397 COKER. R SELF, E
27 048 ZIRKLE CAROLYN 14NOVIO74 13MARIG75 32 78 11902 DUNAHOO ™ HANCOCK N
28 202A STREET GEO 2D 14APR1974 O01SEP1977 41 113
29 374 PROVEAUX CARL 13FEBL1374 14APRI374 5 36 13 PIERCE F ALLEN R
30 375 CROWDER CLAUDE 28MAY1974 11JAN1975 37 44 17844 PELLER C BELL R
31 429 WILLIAMS ROBERT 14DEC1974 18SEP1975 17 25 24275 HARRISON D RYAN A III
32 919 JOHNSON, WILLIE 05APR1974 1BJULL1S74 28 5 28278 . JACKSON, G RRADLEY , W
33 384 DIXON, HARRY SA 15JAN1975 LIMARLIG?7S5 32 78 11503 DUNAHOO, M HANCOCK 5 N
24 385 TARPKINS JOHNNY 15JAN1975 12MARIOS73 32 78 1190 3 DUNAHOO M HANCOCK N
% 35 404 KESLERs ANTHONY 23MAR1IS75 17APR1S75 32 6 4959 DUNAHOO, M HANCOCK, N
36 428 BERRY OTIS 28 JANIO75 25JUN19G75 19 126 6289 A WHALEN JR B MILLER
37 467 BAILEY NATHANIE 23AUGLI®75 17DEC1975 10 31 814012 EANKE H BRADLEY J
38 498 "EDWARDS PAUL DU 31JANIS75 14MAY1S75 37 44 18352 ALLEN T PEEK R
33 550 HENRY, JOSEPH L 28AUGL975 03MARIO76 3 690 A-2881G WOFFORD, C SLATON, L
40 580 DICKEY, JAMES E 25JAN1975 02MAY1S75 23 11 16529 CULPEPPER, G HASTY
41 603 MILLERs EVERETT 14MAY1575 220CT1976 10 31 8-132R37 BANKE, H BRADLEY, J
42 745 HALL JIMNY JR 17DEC1975 03MAR1Q77 42 2¢ 13574 BARROW J GORDON H
43 Z13A COBB ANTHNY 2D 22N0OV1976 21APR1S80 13 9 4553
44 614 HENDERSON ROY C 31JUL1976 24NGV1IS76 16 87 2722 WHITE W HAYES 8
45 €25 MARTIN, . DANNY D 02NOV1i976 19JANL977 28 5 29364 JACKSON, G ARILEY, J
4€ €50 LLEWELLYN, ROBE 19FEB1976 O01APRIS77 3 60 A-34160 WELTNER, C SLATON, L
47 656 MORGAN, JON TER O04DEC1S76 22FEB1977 38 48 77-53 MURPHY, H PERREN, J
48 670 CORBINs RONNIE 27AUGLI976 120CT1976 3 60 A-326 HOLT, E SLATON, L
49 702 WASHINGTON, MAT 20MAR1976 24JAN1977 17 25 25162 CHEATHAM, F JR RYAN, A
LIST C (CON'T)
D -x :
F L D L
C N L D F DL i i
0. A A D F X FD D Nn
8 S M- Fo 4 3 — 4 F i F
SE E 4 B8 F Cc 5 8 3
50 724 FIELDSs RICHMON 02APR1977 210CT1977 17 25 26890 CHEATHAM, F RYAN, A III
51 725 WALKER, VERNON 11JUN1S77 04NDOV1S77 28 79 9417 JACKSOM, G BRILEY, J
52 733 COULTER, DAVID 29SEP1977 OIDEC1377 28 117 8428 DUKE ys J BRILEY, J
53 736 ANGLIN, JCHN TH 22MAY1977 23NOV1O77 1 2. 77-727 LOYT. H NEUGENT, V
£4 834 BRACKETT, WALTE O7MAY1977 OBSEP1977 37 44 22330 PEELER PEEK
55 931 SMITHs LEWIS C ~17NOVi977 16MAY1378 28 1SE 4481 DUKE, J JOCOY, S
56 DOS BENTLEY, JAMES 31MAYLO78 QOFEBLIG79 20 67 78-8205 MERRITT, R HUTT, B
57 D25 MCEACHIN, CAREY 18MAY1978 273EP1378 7 80 3036 KILLIAN, 'W THOMAS, G JR
58 M42 HOERNERs CHRIST 02JUN1979 1SDEC1973 26 42 79-3 PALMOUR, J WAYNE, J
56 752 FATE, JAY MCCLU — A 16JANL1O78 18 102
60 DO7 CLEMENTS, ANDY O70CT1973 21JAN1977 23 45S 4884 Of CONNDR, J WEST, P
» : 61 KOl RICHARDSON, CLA 130CT1973 1ISNOV1373 23 57 938 SCOGGIN, A PATTON, C
62 033 LAY FRANCES 10JUNL973 14AUGL1973 14 141 453 . LL KNIGHT E FLEMING
63 256 SIMMONS, JOE D ~100CTIS73 14NOV1973 27 10% B~1812 “FOSTER, W JR ~ JOHNSON, C
64 259 MERCER WAYNE 13SEP1973 27NOV1d73 23 11 15304 C MORGAN F HASTY
65 270 WOOD, JACK PETE 16JUNLO73 OINDVIO?73 20 134 S712 NYCONNNE, J MULLISs A
€€ 396 MOYE L C 140CT1973 27FEBIS7S 16 140 920 WHITE W HAYES B
67 397 MOYE LEWIS 140CT1973 27FEB19375 16 140 920 WHITE Ww HAYES B
68 632 MCDUFFIEs JOHN 070CT1973 0EDEC1976 290 45 4884 O'CONNOR, J WEST,
66 869 KIDD LONNIE 30MAR1973 11APR1973 14 22 1872129 L KNIGHT E FLEMING
70 878 BROOKS, BOBRY 10JUL1973 18JAN1D974 & 58 2600 POPE, M HOLCOMB, C
1-904 HILL> ALICE ASK 3DMNARIO?3100CT1973 1% 22 2129 KNIGHT, L FLEMING, E
72 149 REDDISH, DONALD O02DEC1974 13JUN1IS75 7 151 1441 KNOXs 6 JR THOMAS, GC JH
73 038 STESIAK., WILMA 27FEB1S74 22MAR1974 € 112 10348 POPE, M HOLCOMB, C
74 2688 ANDERSON ALFORD 04JAN1974 1OMAR1IO974 35 92 11244 G HORKAM COLE
75 318 PACE, CHARLES E 2BAPR1974 16JUL1974 8 106 344515 LAND, J WHISNANT, E
76 320 BROWN THEODORE O4JAN1974 24JUL1974 17 25 22525 D HARRISON LL. DREW
77 322 HERLONG JAMES 19JANL1974 17JULLC74 39 142 3930 J GRAY W FOREHAND
78 340 MOBLEY, STEVE 14AUG1974 25SEP1974 B 106 34619 LAND, J SMITH, W
“79 345 JOHNSON, WALTER O08JUN1974 230CT1974 2 107 2601 RIDGEWAY, T STRAUSS, J,
80 346 MOORE, WILLIAM 20JUN1974 220CTL1974 42 29 12735 BARROW, J GORDON, H
81 354 RAY WILLIAM 10JUL1974 27NOVIST4 6 61 2151 M POPE JR C HOLCOMB
82 356 BATTLE ROBERT 02NOV1S74 OSDEC1974 36 123 10230 Ww BLANKS C MORRIS
% 83 367 KESSEL EMORY ~30NOV1G7& 28JANIG?735 A 72 3632 J LAND M WHISNANT
84 400 HUDSON BILL 13DEC1974 O3APR1I375 31 43 644 W GEER © FNSTER
85 402 STEWART. GEORGE O1MAY1974 28AUGL974 18 18 5072 SOSEBEE, H MCGARITY, E
86 405 GORDYs WILLIAM O2DEC1974 O1APRIiO75 4 132 75-1 HARVEY, J CHENEY, D
“87 465 BRADSHAW, CLARE 27MAR1D974 24CCT1974 25 119 3514 GUNTER, J STOCKTON, V
88 466 GARLAND, CLAUDE 27MAR1974 240CT1375 25 11S 3514 GUNTER, J STOCKTON, V
83 S41 BRADBERRY LED 0 INOV1974 O04DEC1975 8 106 348990 A DAVIS Ww SMITH
G0 876 VINCENT RICHARD 01AUG1974 O04DEC197a4 3 5K0 A23385 J LANGFORD JR L SLATON
31 055 TAYLOR PATRICIA 27JUL1S75 26FEB1976 7 1 3553 G KNOX G THOMAS
92 415 ALBERT, EDDIE L 19JAN1975 25APR1975 18 75 10+128 SOSEBEE, H MCGARITY, £
$3 416 BAKER CLARENCE 19JAN1975 25APR1975 18 75 10128 H SOSEBEE E MCGARITY
34 447 SANCHEZ ADAM. 04JUL1975 250CT1975 10 31 814036 H BANKE Ww [SON
35 456 HAMLIN, CECIL W O0S5AUGLI75 14NOV1375 38 71 7611 ~~ MURPHY, M PERREN, J
96 457 HENDRICKSON, JO 05AUG1975 14NOVIO75 38 71 7612 MURPHY s H PERREN, J
$7 472 RICHARDSON JER 24NOV1S75 1SJAN1976 36 128 1551 W BLANKS C MORRIS
38 492 WISE, WILLIE B 16AUGLS75 18NOVIS?S 13 4€ 6126 MCMURRAY, W TURK, D
LIST C {(CON'T)
D %
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Ce ATA D F X FD D D
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99 S19 STOVALL DAVID 04JUL 1975 250CT1975 10 31 814035 H BANKE Ww ISON
—100 527 BAKER, BOBBY ~~“ 01JUN1975 14NOVIO75 15 47 41902 KELLEY, A LEE, W
101 543 ROBERSON CLEM 06SEP1975 OSDEC1%75 5 17 1283 E FULCHER R ALLEN
102 544 JOHNSON CHARLES 26DECL1975 24MAY!1976 22 146 B733 R COKER E SELF
103 556 DAVIS GRADY JR 26APR1975 16SEPIO75 42 2% 13257 J BARRON H. GORDON
104 686 SMITH, JIMMY MI 13DEC1975 23JUNIG77 42 23 14269 BARROW, J GORDON, H
105 927 SUTTONs JAMES 060CT 1975 09DEC197S 3 60 A~28872 WILLIAMS, O SLATON, 1
106 518 ADAMS, LUCIOUS 14MAR1976 OTMAYLIS76 41 113 674 HOLTON, E STRICKLAND, C
107 520 WALKER, CHARLES O7FEB1976 19MAY1376 21 76 10621 HUNT, W PACS, S
108 529 BARBER, GEORGE “01JAN1976 23MAR1IGS76 8 106 26658 LAND, J WHI SNANT, E
| 109 531 COOMBS, HAROLC 13MAY1976 1SJUNIG76 15 47 47097 KELLEY, A GRAY, L
110 554 WILLIAMS ODELL 22JUN1S76 18AUG1I976 3 60 A31937 WILL IAMS L SLATON
111 595 FORD» JAMES DO 02AUG1976 21SEP1976 39 137 13394 GRAYs J FOREHAND, W
'112 600 WALLS, ERNEST J 27APR1976 120CT1976 3 60 A=-31287 ETHRIDGE, F SLATON, L
113 609 ELLENBURG, GEOR 18AUG1576 16NOV1IS76 25 119 3778 GUNTER, J STOCKTON, V
114 622 HARRIGNTON AL 20NOV1IS76 04JANLIS77 2 60 A33707 WILLIAMS L SLATOM
115 629 ELLIS JUANITA 070CT 1976 02FEBL1S77 2 107 32826 T RIDGWAY J STRAUSS
116 6327 CONTRERAS, VICK 06AUG1O76 2BFEB1S77 6 28 6870 POPE, M JR MILLS, F
117 643 HUDSON WILL IE 14FEB 1976 16FEB1G77 16 140 951% W WHITE BR HAYES
118 651 GARNT UO, ERNEST 30AUGL976 30MAR1IG77 40 83 125 WHITE, Ww HAYES, B
119 654 KENDRICK, CHARL 15JAN1376 24MAR1Q77 40 97 8027 STEVENS, R GOOLSBY,s K
120 660 MCCORMICK JAMES 1SSEP1976 26APR1977 7 63 6550 “RR SCOGGIN
121 661 REDFIELD, QUESE 18JUN1S76 13APR1G77 5 121 44 FLEMING, W JR ALLEN, R
122 673 HESTER, GLORIA 13NCV1976 28APR1IS77 40 20 6454 STEVENS, R GOOLSBY, K
123 681 PEPPERS, JOSEPH 24MAY1976 Q03NOVIS?76 20 67 10756 PITTARD, C HUFF, W
124 716 WATTS WILLIAM 09AUGL1976 16DEC1976 33 37 7836 “R ROYAL F SALMON
125 730 HEDGECOCK, MICH 300CT1976 OIDECIS77 25 144 1386 GUNTER, J STOCKTON, V
126 749 SULLENS COY 31AUG 1976 210CTIS76 26 69 44655 J PALMOUR J WAYNE
127 812 ANDERSON, LEMUE 27JUL1976 22JUN1S78 32 78 12168 BROOKS, J HANCOCK, N
128 836 DEBERRYs RAYMON 2BNDV1S76 23MAR1IG77 22 23 5871 COKEF, R CAMPBELL, W
129 863 CONTRERAS, JR J 06AUG1976 28FEBLIC7? 6 28 6870 POPE, JR M MILLS, F
130 €86 DIXON, ELAINE W 21SEP1G77 20NOViII77 25 115 3867 GUNTER, J STOCKTON, V
% 131 666 NIX BOBBY LEE 16APR1977 06MAY1977 34 3 F783 B CULPEPPER A CATO
132 689 MONTGOMERY CAL 04JUN1977 17AUG1977 9 8 41233 J SHITE C CRAWFDRD
133 719 THOMAS, CHARLIE 20JUL1977 10NOVIS77 3 60 A-37100 FRYER, SLATONS
134 727 DILLARD JEFF JR 23AUG1977 28BNCVIOT77 3 60 A37191 LANGFORD L SLATON
135 738 SPAIN, JAMES JR 18MAR1977 O06DECIS77 10 31 5-15315 MORGAN, H QUINLAN, J
136 740 THOMAS, KENNZTH 23SEPIG77 20DECLI377 I 37 77-F142 GRAY, J NEUGENTs V
137 755 ROBERTS VINCENT 23AUG1S77 24JAN1978 3 60 A371°91 BLACKSHEAR LL SLATON
138 805 PIERCE, BETTY A 20APR1977 08JUN1S78 6 61 15-487 NEVILLE, R MILLS, F I11
135 822 VILLAGOMEZ, JOS 190CT1977 O3MARIG78 4&4 B83 2685 FINDLEY, J CHENEY, D
140 844 ANGLIN, JOHN TH 22MAYL1977 15JUNI1S78 I 37 77-778 LOTT, H NEUGENT, V
141 855 GI_LIAM CLEVELD 17MAR1S77 2BJUNIS77 3 60 A35317 SHAW L SLATON
142 D37 MORET. ANTHONY O7NOV1978 06NOV1I379 4 132 73-50 FINDLEY, J GRAHAM, J
143 D44 CURRY ALBERT 29MAY 1978 04DEC1978 7 151 781718 R SCOGGIN G THOMAS JR
144 E05 DOWNS, JOHN HEN 130CT1978 O0IDEC1978 3 60 A=42315 MCKENZIE, S SLATON, L
145 E06 MYRON, JAMES MI O7DEC1378 18SEPRP1G79 3 60 A-42686 HICKS, PR SLATON, L
146 E41 TAYLDR, HARVEY 28N0V1IG78 20MARIS79 23 11 20018 CULPEPPER, G Il SPARKS, Ww III
147 E50 TITTLE, JAMES W 14AUG1978 26SEP1978 32 78 12213 BROGKS, J HANCOCK s N
LIST C {(con'm
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149 P38 MOSESs GEORGE R O03SEP1978 11NOVIS78 22 146 9845 COKER, R CAMPBELL, W
150 797 LAMB, RCBERT GE 11MARIG78 15MAY1G78 8 106 39614 LAND, J
151 800 THOMAS EMANUEL 27FEB1O78 OBMAY1978 28 104 4983 G JACKSIN Ss Jocoy
152 BOS DEESs JIMMY DAN 27APR1978 1GMAYLS78 30 16 78337 HAWKINS, W JOHNSON. J
153 848 STINSON, HENRY O1JAN1IG78 13SEPLO78 41 — 13 3150 HOLTON, E DIXON, D
154 E07 PERRYMAN, LEON 03FEB1679 27FEB1979 3 60 A=43581 ALVERSON, L SLATON, L
155 E15 TIMBERLAKE: A T 20SEP197S AF ap WILLIAMS, O SLATON, L
156 E30 SNELL». WYLIE Il O7JANLIGC7S ISFEB1979 14 141 187 JACKSON, J LEE, W
157 £32 MORRIS, BENNY 31JUL1O79 25MAR1380 14 22 2384 KNIGHT, L LEE, W JR
% 158 E36 CAFFO, MICHAEL 25MAR1I379 25AUG1980 17 25 30613 CHEATHAM, F GARDNER M
159 E37 FRASIER, JOHN R 03MARIO79 10AUGLO79 20 67 HUFF, W
160 E39 HILL, TIMOTHY W 27JUL1979 13NOV1J79 20 67 79-8262 PITTARD HUFF, B
161 E48 MCCOY, TOMMY 06AUGL1 S79 190CTIO79 28 104 5292 THOMPSON, H
162 E43 JACKSON» LEE EA O1SEP1579 14DEC1979 31 49 1386 BOWEN, A FERGUSON, C
163 M41 HIGHFIELD, BRAD OBMAY1379 14SEP1979 26 AS K—=45€671 KENYON, A WAYNE 5 J
164 013 SEAY, WILLIE JA 10NOV19?73 10NOVIS?S 31 120 8479 GEER, W
166 034 DANIELS, JAMES 1BMAY1973 [70CT1374% 16 14% 5 WHITE, W HAYES, 8
166 187 ASKEW DAVID LEE 30MAR1973 11APR1G73 14 22 1872123 L KNIGHT E FLEMING
167 232 THOMPSON, ROBER 20MAR1S72 31AUGLIS72 37 44 15453 TILLMAN, C PEEK
168 233 BAKER WILLIAM O7JUL1973 O07SEP1973 18 75 9540 H SNSEREE E MCGARITY
169 239 SAMPLES, RICHY 13MAY1973 05SEP1973 38 115 1333 WINNS D BERREN, J
170 263 BARGERON ROBERT 0S0CT1973 07JANIOS74 4 33 1594 P CASWELL J UNDERWOOD
171 302 HENRY, MILTON L 1O0MAR1973 15JUN1972 3 60 A-16496 ALVERSON SLATON, L
172 319 PIERSONs GECRGE 10AUG1973 17JUL1974 B 106 33627 LAND. J WHT SNANT, E
173 041 BANKS MATTIE 17MAR1 374 13AUG1974 3 60 A21114 ALVERSON L SLATON
174 321 GANDY, JESSE JA 20JAN1O74 17JUL 1974 33 142 3939 GRAY, J FOREHAND, W
175 326 HUNTER, CHARLIE 04JUL1974 15AUGLIO74 36 123 726 MARSHALL, T MORRIS, C
176 -334 DODSON,s JESS 0BMAY1974 27AUGL O74 22 27 3102 COKER, R HILL, .R
177 337 DAWSON, EDDIE C 30JUL1974 24SEP1374 13 46 6012 MCMURRAYs W JR TURK: D
178 341 SMITH, JAMES MA 15JUL1974 070CT1974 3 60 422710 LANGFORD SLATON, L
179 343 FOX, RALPH HOWA OOMAY1374 020CT1974 26 134 11052 BLACKSHEAR, J BROWN. G JR
% 180 351 HAWKINS, JR OeW 20JUNIS74 14NOV1IS74 36 34 2653 BLANKS, W MOFRISs C
181 353 O'KELLEY, GOLDO O0OSEPLO74 26NOVIO74 42 20 12332 BARROW, J GORDON, H
182 361 CALLOWAYs KING 23JUN1974 OSDEC1O74 31 135 1963 GREER, W FOSTER, R
183 376 LUMPKIN, MICHAE OSDEC1974 11FEB1975 37 44 10873 PEELER, C BELL, R
184 382 SMITH, RICHARD 180CT1674 03MARIQ75 37 44 18085 PEELER, C JR
185 351 BROWN, GEORGE M 16NOV1S74 18MARIO?S 17 25 23595 ~~ HAFRISON, D RYAN, A
186 419 COLEMAN, ALBERT 22SEP1974 OSMAY1975 16 87 2526 WHITE. W HAYES, R
187 874 BELISFF, FRANK 23APR1974 05AUGIO74 39 159 3669 HORNE , 0 FOREHAND, W
188 C92 WITHROWs KIM GR 27DEC19575 1GAPRIS?79 9 64 72 WHIYE, J CRAWFORD, C
189 383 DIXON. BOBBY {5JANLI375 11MARLOS75 32 78 11303 DUNAHOO. M HANCOCK, N
160 417 JONES, CASTERDA 19JAN1975 30APR1975 27 109 8-2010 WILLIFNRD, J JOHNSON. C
151 439 WATTS, GARY 06APR1975 10SEP1O75 37 44 1894 PEELER, JR C PEAK, R
192 454 BERRYMAN DAVID O03AUGLI275 25NOV1IOS75 32 60 A28213 G TIDWELL L SLATON
163 483 LABON, WILLIE H 22JUL1975 O03FEB1IS76 37 44 19772 — NORVELL PEEK
194 486 STEWART. JOSEPH 12FEB1975 26JAN1376 21 76 10501 HUNT 5 W PACE, S
195 506 BOUTTRY, LEGONAR 160CTL1S75 15MARLIO76 40 27 5354 STEVENS, R GOOLS BY» K
156 521 GIBBONS, WILLIE 020CTi975 18MAY1976 24 81 2 MCMILLAN, W THOM SON, H
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346 161 ASHFORD SYLVIA O07AUGL1975 O07MAR1S77 8 106 37476 J DAVIS M WHISNANT
347 162 JCHNSON HUGH 16JUN1976 17SEP1S76 8 72 4087 J DAVIS FE WHISNANT
348 163 JACKSON L C JR 25APR1S76 OLNOViIGT76 8 96 492 J DAVIS Ww SMITH
349 164 LITTLE LEWIS 31CCT1976 17JAN1977 8-133 6848 J LAND E WHISNANT
3850 165 BRYANT MEMORY 14DEC 1976 11APR1S77 8 106 37913 J DAVIS M WHISNANT
351 I75 GRAVLEY RALPH 24JUL 1976 220CT1376 9 8 39179 J WHITE D VAUGHN
382 191 LONG JOE FRANK 04SEP1976 12N0OV1976 12 155 10607 TEMPLES. C BRANTLEY S
353 J17 JACKSON ROBERT 21FEB1G76 21MAY1S76 15 47 451900 A KELLEY JR L GRAY
$ 354 Ké&l WHITFIELD ZEBED 24APRI1ST6 1SJULLISTE 37 44 20651 ALLEN D ROGERS
355 K42 REESE, HORACE 29MAY 1976 13DEC1976 37 44 210789 PEELERYy L JR PEEKs R
356 L14 HUMPHRIES, CLEV O9FEB1976 21APR1S9S76 2 107 3175 RIDGWAY, T STRAUSS, J
357 L433 GUYTONs R A 20MARLI976 OBJUNILIST76 § 64 22 =. DAVIS J VAUGHN, D
358 L64 CURTIS: DIANE 15JAN1IST76 QO7FEB1976 13 40 14236 MC MURRAY TURK
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360 1.88 HEAD, CHRISTINE 24SEP1976 O0SMAY¥1G77 18 18 6115 SOSEBEE, H SMITH, E
3€1 LOO PITTMAN, WILLIE 05JUN1976 180CT13876 18 75 10443
362 M32 HAYES, ROGER JO 27MAY1976 010CT1976 25 127 8788 GUNTER, J STOCKTONs V
363 M53 BROWN, ALBERT J 1BSEP1376 (SSEPLIS77 27 52 1024 RURRAMs R JR MILLER, J
3€4 M87 MORALEZ, HUMBER 26JUNL1S976 O01SEP1976 36 129 1268 BLANKS, Ww MORRIS, C
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372 141 MERRIWEATHER R 170CT 1977 20JAN1S378 5 121 40 E FULCHER R ALLEN
373 197 HICKS, JESSIE L 14FEB1G77 22APRIO77 13 40 14642 GREGORY, H TURKEs D
374 188 TIMMONS EDDIE 140CT 1977 OSDEC1S7?7 13 156 5070 H GREGORY D TURK
375 J18 PETERSON CLEVEL O0ADECLI377 O7AUGL97S 1S 47 £8138 A RELLEY H HIND
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378 427 GREEN JARRELL 02NOV1II77 27JUNLIS78 17 25 27699 F CHEATHAM S LAWTON
379 J39 SMITH, TIMOTHY 26JUN1977 15NQVIG?77 20 67 77-B281 MERRITT, R HUFF, B
380 J40 WALKER, JOSEPH 01JUL1977 04NQVI1IS77 20 67 77-8239 MERRITT, R HUFF, B
381 JSS LOCKETT, WALTER O02APR177 06DECLIS77 23 11 12013 BELLY H SPARKS, WwW II]
382 J85 WOOTEN, KOBERT 30APRIG77 24MAY1977 20 134 £196 O'CONNOR, J WEST, P
383 K10 GREGGs CHARLES 27FEBL1977 25MAYL1IS77 34 19 555 CUL PEPPER, R CATO, A
384 K20 CARTER JOE i18FEB1977 13AUGL1377 3S 136 35911 M CALHOUN COLE
385 Ké&4 HORNE, DOROTHY 11AUG1977 03FEBLS78 41 138 5588 HOLTON, E£ PRITCHARD, M
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388 L76 JOHNSON, JULIUS 290CT1977 21NQOVIO77 40 82 153 TOWSON, Ww
383 M28 LAMAR, ELLIS JR 26FEB1977 15AUGI977 24 150 8 MCMILLAN, W MALONE, R
390 M66 LUTTRELLs JOHNN 16APRIQ77 240CT1S77 30 124 1388 HAWKINS, W JOHNSTON, J
391 N41 HALL, STEVEN JA 17MAY1977 14SEPLIST77 34 658 £92 CULPEPPER, R JR CATO, A
362 N47 BELL, ORIS MAY 12FEB1977 11APR1I977 3 60 A-34832 MCKENZIE SLATON, L
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355 H91 ROBINSON DURAND 04FEB1378 17APR1978 3 60 A33620 O WILLIAMS L SLATON
366 H92 FINCH TOMMY 15MAR1978 26APR1978 3 60 A39557 C WOFFORD L SLATON
397 HS3 TODD FANNIE 20JAN1978 25MAY 1673 3 60 438349 J LANGFORD L SLATON
358 HI5 DECKERy JOANN —~25MAY1978 05SEP 1978 3 60 A=40732 HOLT, E SLATONs L
369 H96 HARRISON, MARY 24APR1978 11JUL1978 3 60 A40186 HOLT, E SLATON, LU
400 HS9 WILDER A C © 13AUG1978 02CCT1978 3 60 441525 C SHAW L SLATON
401 101 JONES ANDERSON 25AUG1978 29SEP 1978 2 €0 A41611 MCKENZIE L. SLATON
4¢2; 103 BROWN, TINA ~~ ~0Q1SEP1978 260CT1978 3 60 A-41851 HOLT, = SLATON, L
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ss 404 I11 BARNETT WALTER 14DEC1378 21MAYLI373 3 60 A42381 WARD SLATON L
405 120 JOHNSON, MARK J 24DEC1978 26NOV1IO79 3 60 A=46575 WOFFORD SLATON, L
406 128 FUTC t HARRIS 17APR1678 190CT1678 4 83 2901 J HARVEY D CHENEY
407. 130 CARTER JULIAN 270CT1S78 26FER1379 4 54 1543 J HARVEY G SINRICH
408 142 WILEY JOHN JR 16SEP1978 21NOV1G78 5 121 73 E FULCHER R ALLEN
405 145 BARNES JIMMY 04SEP1978 23JAN1979 6 58 3568 M POPE JR F MILLS
410 182 WILLIAMS LARRY 19FEB1978 14JUL1S78 11 33 780728 L HAMES T CHARRON
411 J10 BEASLEY ELVIN = 21AUGI978 10NOV1O?78 14 141 91 J JACKSON Ww LEE JR
412 428 FITZRCY JOSEPH 020CT1978 30AUG1979 17 25 29200 F CHEATHAM 8B DOWELL
413 J97 HAYES PEARLIE 05MAR1G78 24JUL1S78 31 4° 1187 W GEER C FERGUSON
414 K12 HODGE, JAMES EA 20JAN1978 20FEB1979 34 43 F-644 ~~ CULPEPPER, R BATEMAN, 8B
415 K47 INGRAM LUCIOUS 01JUL1978 170CT1978 37 44 24718 BROOME R PEEK
416 K49 LEWIS, STEVE TH 13NOV1978 O05MAR1973 37 44 23347 HENLEY, C PEEK, R
417 LO7 WATSON, DONALD 13NOV1978 OLMARLIG?79 1 32 78R-035 LOTT, H NUGENT, V
418 L 79 KYLER» HERBERT 27FEB1S78 12MAY1978 16 87 78-37 TOWSON, W HAYES, B
419 M18 SPARROW, LOUISE 25MAR1978 28JUN1978 21 76 11183 HUNT, W JR PACE, $
420 M52 THOMAS, LAMAR O1SEP1978 23MARL1O79 27 95 6194 BUFRESS, R MILLER, J
421 M76 LAWRENCE MARTHA 30JAN1978 18SEP1978 33 57 10744 = ROYAL SALMON F
422 N51 TURNERs TONY D O0SDEC1978 O08FEB1S79 12 155 12345 TEMPLES, C PANNELL, C
423 P12 GREENE, MARTHA 14JUL1978 11SEP1078 19 145 14696 WHALEN, A JR ENGLISH, P
424 P31 LAW, MICHAEL K 10NOV1978 03MAY1979 12 155 12321 TEMPLES, C PANNELL, C
425 107 CHATMAN PHIL 12FEB197S 2SMAY1979 3 60 A44170 C WOFFORD L SLATON
% 426 108 HALLs RONNIE 27JAN1979 0SAPR1979 3 60 A=-43564 WARD SLATON, L
427 109 STEVENS, NAPOLE O03APR1979 01JUN1G79 2 60 A=-44373 ALVERSIN, L SLATON, L
428 110 PHILPOTTS ANNIE 24APR1979 0SJUL1979 3 60 A44503 J FRYER L SLATON
429 113 MARTIN, WILLIE 26MAY1979 29JUN1979 3 60 A=-45072 ALVERSON, L SLATON, L
420 115 WESTWCOD, JAMES 12JUL1979 21SEP1973 3 60 A-45482 WELTNER, C SLATON, L
431 121 YOMLIN HOWARD 04DCT1$79 O07JANISB80 3 60 A47163 F ELDRIDGE L SLATON
432 122 REID MARVIN 280CT1979 28JANLIOBO 3 60 A47347 WOFEORD L SLATON
433 123 PHILLIPS KRESS 02DEC1979 13MAR1380 3 60 447549 I JENRETTE L SLATON
434 17! JONES WALLACE 12APR1379 25MAY19579 8 106 41489 J LAND D PULLEN
435 172 TYNER JAMES 07JUL1973 020CT1iS79 8 106 41899 J LAND W SMITH
436 173 ROBINSON TCMMY 03SEP1979 10LEC1979 8 106 42083 K FOLLOWILL G CONGER
437 153 WINGFIELD, LEE 08SEP1979 27FEB1980 13 40 79R=-427 GREGORYs H CHRISTY. G
438 'J12 RIDLEY JESSIE ~~ 11JUNL1979 24SEPi979 14 74 2203095 J JACKSON Ww LEE JR
43S J19 HOWARD JOHNNY 27NOV1979 20DECIS79 15 47 79R672 A KELLEY H HIND
440 J37 CHATMAN, GABRIE 250CT1979 2INOV1IS79 15 145 15208 WHALEN, A CALDWELL, J
441 J57 BCOKERs CATHERI 27JAN1379 09APR1S73 23 11 20001 BELL, H WE STON, C
LIST C (CON'T)
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442 K73 RHODES, HOLLIS 060CT1979 07JAN1G80 42 23 15780 GAINESs J GCRDON, H
443 N46 DAVIS, JOANN 21JANL1979Q 12MARL1979 3 BO A=4337I3I FRYER) J SLATON, L
444 NS6 MARABLE, LUTHER 06 JANL1979 18MAY 1573 35 1386 6196 ELL JOT, WwW COLE, AL
445 Pl4 ROBERTS, FRANK 20MAY 1979 .21NOVI1IS7S ee L4¢€ 10534 COKER» R CAMPRELL,» W
DTI EO |
CLADT NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC.
10 Columbus Circle, New York, N.Y. 10019 e (212) 586-8397
via Purolator Air Courier
June 7, 1983
Robert H. Stroup, Esq.
1515 Healey Building
87 Forsyth Street, N.W.
Atlanta, Georgia 30303
Re: McCleskey v. Zant
Dear Bob:
I'm enclosing the original of a mailing
dated February 9, 1983 from Baldus to Boger which
contains more than you asked for but includes it.
Sincerely,
/ ;
/ & [ 3 : :
(AA dao rt
Audrey G. Fleler
L
Contributions are deductible for U.S. mmeome tax Purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff office and budget {
|
ae
AY L
(Rev. 8/32]
i :
¥ “ »
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
JUN 31853 ATLANTA DIVISION :
FILED IN CLERK'S OFFICE
U. 8. D.C. - Atlante
spETER (lB
fs) H. CARTER, Glens
i:
feputy Sle
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION
NO. C81-2434A
VS.
WALTER D. ZANT, Super-
intendent, Georgia Diagnostic
& Classification Center,
Respondent.
ORDER
This action is before the court on petitioner's motion
for discovery pursuant to Rule 6 of the Rules Governing Sec-
tion 2254 Cases in the United States District Courts and Rules
33(a) and 34(a) of the Federal Rules of Civil Procedure and on
respondent's opposition thereto. Having considered the argu-
ments of the parties, the court rules as follows:
I. DEPOSITIONS.
Petitioner's request for leave to file notice of deposi-
tions is GRANTED.
II. INTERROGATORIES.
Numbers 1 and 2 - GRANTED.
Numbers 3 and 4 - GRANTED.
Numbers 5 and 6 - The court is unable to rule on whether
respondent should answer these interrogatories in that Ap-
pendix A and Appendix B identified by the petitioner as in-
corporated into these interrogatories is not attached to peti-
Rev. 8/82".
Pd
~
tioner's motion. Therefore, petitioner's motion as to these
two interrogatories is DENIED with leave to renew if such
renewal is received in chambers within five days of receipt of
this order by petitioner's counsel.
Number 7 - DENIED as irrelevant.
Number 8 - If the information is maintained centrally by
either the Department of Offender Rehabilitation, the Attorney
General, or the Supreme Court of Georgia, GRANTED. If the
information may be in files of any of those institutions but
is not already compiled, GRANTED if the petitioner is willing
to defray the cost of compiling it and if obtaining and com-
piling this information can be accomplished so as not to delay
the evidentiary hearing in this case.
Numbers 9, 10, and 11 - DENIED as not relevant to any
issue presented by the petition.
Numbers 12 through 18 - DENIED as irrelevant.
ITI. REQUESTS FOR PRODUCTION OF DOCUMENTS.
Numbers 1 and 4 - DENIED as irrelevant.
Number 5 - DENIED. Respondent has objected to this re-
quest on the ground that these documents are not in his custody
or control. However, the court notes that these documents are
probably in the custody and control of the Supreme Court of
Georgia and is of the opinion that they are discoverable and
have been discovered in other cases. The parties are DIRECTED
to confer regarding this request for production, and the
Attorney General is DIRECTED to facilitate an opportunity for
inspection of these records by petitioner's counsel.
(Rev. 8/82)
y
-
Discovery in this case is ORDERED EXTENDED to July 11,
1983. Respondent's responses to petitioner's interrogatories
(and requests for production of documents) are ORDERED SERVED
on petitioner's counsel by June 15, 1983. The evidentiary
hearing is scheduled to be held August 8, 1983.
Petitioner has filed a supplemental memorandum and affi-
davit in support of his motion to reconsider and pursuant to
the court's order of April 1, 1983. The court has reviewed
petitioner's arguments, the affidavit of petitioner's counsel,
and respondent's supplemental response of May 4, 1983.
Habeas counsel contends that trial counsel could have
discovered Rev. Johnson and Gwendolyn Sharp if he had pursued
available channels for potential sentencing phase witnesses.
Assuming without deciding that this is true, it follows that
the information would have been readily available if habeas
counsel had chosen to seek it. According to habeas counsel,
therefore, this is not a classic "newly discovered evidence"
situation where the information could not have been learned of
earlier. Instead, this situation is one where habeas counsel
made a conscious decision not to pursue or present further
evidence than he presented at the state habeas hearing. This
deliberate tactical decision made by able and experienced
counsel amounts to a deliberate bypass. Therefore, peti-
tioner's motion for reconsideration on this point is DENIED.
Petitioner has asked that the affidavits of Rev. Johnson and
Gwendolyn Sharp be made a part of the record pursuant to Rule
AO 72A.
(Rev. 8/82) »
4
7(b) of the Rules Governing Section 2254 Cases or that they be
treated as offers of proof of testimony which petitioner would
expect to offer if the court were to hold an evidentiary hear-
ing. Because the court has determined that no evidentiary
hearing will be held on the issue of trial counsel's failure
to pursue available channels of sentencing phase witnesses, it
will not consider these affidavits in determining the issue of
ineffective assistance of counsel in this petition. Since the
petitioner has made proffer of these affidavits, the state
may proffer anything which it believes the evidentiary hearing
would have shown on this issue.
In sum, petitioner's motion for discovery is GRANTED IN
PART and DENIED IN PART. Responses to petitioner's inter-
rogatories are ORDERED SERVED by June 15, 1983, and discovery
is ORDERED COMPLETED by July 11, 1983. The parties are
ORDERED to appear for an evidentiary hearing before this court
on August 8, 1983, at 9:30 a.m. That part of petitioner's
motion for reconsideration which was deferred in this court's
order of April 1, 1983, is DENIED,
fo IT IS SO ORDERED this day of June, 1983.
J. OWEN FORRESTER
UNJTED STATES DISTRICT JUDGE
h # »
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner,
v CASE NUMBER C81-2434A
WALTER D. ZANT, AARRAS.: CORPUS
Superintendent, Georgia
Diagnostic & Classification
Center, %
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Respondent.
RESPONSE TO PETITIONER'S
MOTION FOR DISCOVERY
This Court’s.order of April 1, 185383, enlarged Respondent's
time for discovery to April 15, 1983. Nevertheless, counsel
who is specifically assigned to this particular case did
not receive the Court's order until April 11 or 12, 1983,
and, because of previously scheduled hearings and workload, was
unable to schedule the deposition of Professor Baldus before
the expired time period of April 15, 1983. As the Court
noted in its March 31, 1983, order, at the time of the order,
no motion for discovery had been filed on behalf of the
Petitioner. At this point, Respondent opposes any further
extension for the purposes of discovery.
As Petitioner notes, pursuant to Respondent's notice
to produce, Petitioner did provide Respondent with the
underlying raw data for Dr. Baldus' Procedural Reform Study
and his Georgia Charging and Sentencing Study together with
his codebooks, task files and related materials which permitted
Respondent to analyze the aforesaid studies. Respondent
has concentrated his efforts entirely on the statistical
analyzation of the raw data in the aforesaid study, Of
course, Petitioner already had all of the information which
is in Respondent's possession pertaining to said studies,
since the Petitioner was the source of that information.
Thus, Petitioner already has in his possession all of the
"social scientific and erat vionl material on which Respondent
intends to rely, including the underlying data and documentation.”
The only information which Petitioner does not have at this
point is any trial preparation material which Respondent's
expert has prepared in anticipation of trial.
The information relating to the facts and opinions upon
which Respondent's expert is expected to testify Can most
easily be obtained by way of a deposition of Respondent's
expert. It would be exceedingly burdensome and costly for
Respondent to be required to produce all of the information
requested in Petitioner's interrogatories three and four
when said information could just as easily be obtained by
deposing Respondent's expert.
Interrogatories five through eighteen would clearly place
an excessive burden on Respondent since, like Petitioner,
Respondent does not have in his possession any of the
information requested, and in order to obtain said information,
Respondent would most likely be required to spend literally
years and tens of thousands of dollars perusing various
® »
court, county and city records. In effect, through
interrogatories five through eighteen, Petitioner
seeking to have Respondent gather information which might
or might not prove Petitioner's case and which appears to
be designed to offset deficiencies in the present study which
Petitioner is relying upon, and which he states conclusively
shows race discrimination in Georgia's capital sentencing
process.
Likewise, Respondent knows of none of the documents
requested in Petitioner's "Request for Production of
¥ Documents,” which are in his possession, custody or control.
Thus, in conclusion, Respondent does not object to
providing the Petitioner with the information which he seeks
in his first and second interrogatories, and submits that
the information which he seeks by way of interrogatories
three and four can most easily be obtained by way of the
taking of the deposition of Respondent's expert. In light
of counsel's late receipt of this Court's order of April 1,
1983, Respondent respectfully requests a short additional
period to also allow Respondent to take the deposition of
Petitioner's expert. It was impossible for Respondent to
schedule any deposition between April 11 and April 15, and
following the latter date, Respondent did not attempt to
schedule any depositions, because of the trial court's
limitation in its April 1, 1983, order. In light of the
request for leave of absence which has been filed by
Petitioner's counsel to cover the time period of April 22,
—-3
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yi
1983, through May 20, 1983, when Petitioner's counsel
anticipates being out of the country, Respondent respectfully
submits that should this Court decide to extend the discovery
time for the taking of depositions, an extension to approximately
| June 3 would be appropriate.
CONCLUSION
Based on all of the aforesaid, Respondent respectfully submits
that the Court should either deny any further requests
for discovery or should limit future discovery to those
procedures outlined above.
Respectfully submitted,
MICHAEL J. BOWERS
Mache General
ns / RAIA, D.& (OU MARTON O. GORDON fi
Phrst Assistant
Attorney
General
ZU Co
WILLIZ . HILL! 2 Jrt
Senio 1: uf pln Attgrney General
NICHOLAS G. DUMICH
Assistant Attorney General
* °
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served the
within and foregoing RESPONSE TO PETITIONER'S MOTION FOR
DISCOVERY, prior to filing the same, by depositing a copy
thereof, postage prepaid, in the United States Mail, properly
addressed upon:
Mr. Robert H. Stroup
Attorney at Law
1515 Healey Building
Atlanta, Georgia 30303
Mr. John C. Boger
Attorney at Law
10 Columbus Circle
New York, New York 10019
This Sm AJ day of “Haut y "L083,
TREE yz :
Sf ichitagsl SH. Eton
NICHOLAS G. DUMICH
Assistant Attorney General
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION NO. C81-2434A
Ve.
WALTER D. ZANT, WARDEN,
GEORGIA DIAGNOSTIC AND
CLASSIPICATION CENTER, -~ ™
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Respondent.
SUPPLEMENTAL RESPONSE TO PETITIONER'S
MOTION FOR RECONSIDERATION
Petitioner has again asked this Court to reconsider its
order of October 8, 1982, which itself was a ruling upon
Petitioner's motion to alter and/or reconsider the Court's
order of June 9, 1982, which, in turn, denied Petitioner's
request for an evidentiary hearing on a number of issues,
including Petitioner's claim that counsel was ineffective for
not investigating and developing testimony regarding the
Petitioner's life history for use during the sentencing phase
of Petitioner's trial, - This Court, in its order of. October §,
1982, noted that attached to Petitioner's original motion for
reconsideration were two affidavits, one being from Reverend
Robert L. Johnson, and the other from Gwendolyn Sharp.
However, the Court further found that the affidavits did not
appear to be more than merely cumulative, and also there was no
showing as to why they were not presented to the state habeas
Corpus court.
In this Court's latest order. of April 1, 1983, it again
denied reconsideration of the October 8, 1982 order regarding
the affidavit of Gwendolyn Sharp. However, the Court did
withhold final ruling regarding reconsideration of its order
-~
pertaining to the affidavit of Reverend Johnson. Respondent
submits, however, that notwithstanding present counsel's
recitals to his efforts and inability to present said affidavit
to the state habeas court, the record is already sufficiently
clear as to why Petitioner's trial counsel, John Turner, did
not attempt to develop mitigating evidence from Reverent
Johnson and thus, this Court can find that no further
evidentiary development need be accomplished.
On direct examination of Attorney Turner by Petitioner's
habeas counsel, Turner gave the following testimony. He
testified that prior to trial he had reviewed Petitioner's
background with him and had specifically asked him if he had
any witnesses or knew of anyone else who would be able to
testify as to his character at the sentencing phase of the
trial. Additionally, Turner had discussed the development of
character witnesses with Petitioner's sister, Betty Myers.
(H.T. 80). In fact, Attorney Turner asked Ms. Myers if she
would testify at the sentencing phase, but she declined to do
so. Turner also asked about the Petitioner's mother and was
told that she had an illness that would pose a problem to her
testifying. (H.T. 80). Turner acknowledged that he was
referred to Ms. Myers through her church. He further stated,
". . . and I asked her if there were any members of her church
or something to that affect, who knew Mr. McCleskey and who
would be able to come forward. . . . AS best I can recall, she
sald that Mr. McCleskey did not attend that church or had not.
If he was a member, he Had not been in any type of regular
attendance.” (H.T. 81). Turner indicated that McCleskey's
sister was the only person who was really giving him any
support, but she 4id not want to testify. (H.T. 81).
On cross-examination Turner was asked if he had ever
considered going to the Zion Baptist Church to question anybody
there pertaining to McCleskey's character. Again, Turner
answered that he had been in contact with the Reverend there
and had asked Petitioner's sister about his church contacts and
participation, and based upon what Mr. McCleskey's sister had
reported, he saw no reason to explore that possibility.
{K.7. 90-91).
Thus, Attorney Turner stated on the record that he did not
pursue the investigation of church members, because, after
speaking with McCleskey's sister, he felt that lead would be
unproductive. Perhaps, in retrospect if counsel had the
opportunity to again explore this potential source of character
witnesses, he may have chosen to direct his attention to that
area; however, as has often been held by the federal courts,
counsel's actions should not be viewed through the perfect
lenses of 20/20 hindsight. Washington v. Watkins, 655 F.2d
1346, 1355 {5th Cir. 1981); Pord v. Strickland, 696 F.28 804,
B20 (ileh Cir. 19813); Proffitt v. Wainwright, 685 F.24 1222,
1250 (llth Cir. 1982).
Of course, the Petitioner's burden in a federal habeas
corpus case is to show that his trial counsel did not render
reasonably effective assistance given the totality of the
Circumstances. . Stanley v. Zant, 697 F.24 955, 962 (11th Cir.
1963). A criminal defendant is not entitled to error free
counsel. Id. Washington v. Watkins, supra at 1367.
The Eleventh Circuit Court of Appeals has recognized that
effective counsel must engage in a reasonable amount of
pretrial investigation, and this is also applicable to the
sentencing phase of a death penalty case. Stanley v. Zant, 697
at 963, 964. Stanley notes that the en banc decision in
Washington v. Strickland, 693 F.24 1243 (5th Cir. 1982) {Unit B
En Banc), ". . . declined to impose a constitutional
requirement that counsel perform a substantial investigation
into every plausible line of defense." Stanley v. Zant, 697
F.2d at 964. The Court then went on to discuss that trial
tactics or trial strategy might overcome an argument that all
potential character evidence was not utilized or explored. Id.
at 965-966.
It has also been held that counsel for a criminal defendant
is not required to pursue every path until it bears fruit or
until all conceivable hope withers. United States v. Hughes,
635 P.28 449, 453 (5th Cir. 1981); Lovett v, Plorida, 627 F.24
706, 708 (5th Cir. 1980). "The decision not to explore
character evidence must be evaluated from the prospective of
counsel, taking into account all of the circumstances of the
case, but only as those circumstances were known to counsel at
the time. Darden v. Wainwright, 699 7.24 1031, 1037 (llth Cir.
1983); Proffitt v. Wainwright, supra, 685 F.2d at 1247. In the
instant case it was quite reasonable for counsel to rely upon
the statements of the Petitioner's own sister that the Zion
Baptist Church would not provide beneficial character witnesses
because of the Petitioner's lack of activity connected with the
said church. This could have applied to any particular
organization. For example, if Petitioner's sister had stated
that the local police station would not have provided a
beneficial source of witnesses, certainly counsel would not be
faulted for failing to explore that avenue.
In conclusion, a criminal defense attorney must be able to
rely upon a defendant and his family to assist him in preparing
a defense. If those individuals provide false information, or
lead counsel away from a potential source of beneficial
evidence, the defendant should not be permitted at a later date
to turn around and allege that counsel was ineffective for
failing to explore that area from which he was diverted. Thus,
based on all of the aforesaid, Respondent respectfully submits
that an evidentiary hearing is unnecessary regarding the
proffered affidavit of Reverend Johnson and regarding the
question of whether or not trial counsel should have been
responsible for contacting Reverend Johnson as a potential
source of character witnesses.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
iit
Lon Conon,
MARION O. GORDON —F—
First Assistant Attorney General
Ee M B. HIL
iy Assist Aftorney General
Fe fol] SIE 4 Y
NICHOLAS G. DUMICH
Assistant Attorney General
Please serve:
NICHOLAS G. DUMICH
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3499
C0 IE 0 Od 0 _ . ro cress ai 5 ER SET) 1 T30 I —
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing Supplemental Response to
Petitioner's Motion for Reconsideration, prior to filing
the same, by depositing a copy thereof, postage prepaid,
in the United States Mail, properly addressed upon:
- sin
Mr. Robert H., Stroup
Attorney at Law
1515 Healey Building
Atlanta, Georgia 30303
Mr. John Charles Boger
Attorney at Law
10 Columbus Circle
New York, New York 10019
4
th
Tie i day of April, 1983. ik I
Cluck no & ht
NICHOLAS G. DUMICH
Assistant Attorney General
PUNITED STATES DISTRICT CQURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION FILE NO. C81-2434A
VS.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
PETITIONER'S SUPPLEMENTAL MEMORANDUM IN
SUPPORT OF MOTION TO RECONSIDER.
INTRODUCTION.
The petitioner, WARREN McCLESKEY, has moved the Court to
reconsider portions of its October 8, 1982 order - most
particularly those portions of the order dealing with petitioner's
request for an evidentiary hearing on the ineffective assistance
of counsel claim supported by the testimony of Reverend Robert
Johnson and Mrs. Gwendolyn Sharp. On the basis of the Court's
Order of April 1, 1983, petitioner comes now and submits additional
authority in support of this motion for an evidentiary hearing on
+he basis of the testimony of those two persons.
I. HABEAS COUNSEL'S AFFIDAVIT SHOWS NEITHER DELIBERATE
BYPASS NOR INEXCUSABLE NEGLECT WITH RESPECT TO
REVEREND JOHNSON'S TESTIMONY.
Upon the Court's order of April 1, 1983, habeas counsel
is filing contemporaneously herewith an affidavit detailing the
efforts of the habeas counsel to present evidentiary support for
the ineffective assistance of counsel claim at the State habeas
hearing.
That affidavit shows (1) that there was no deliberate
bypass of the State courts with respect to either Reverend Johnson
(Affidavit, 42), or Gwendolyn Sharp (Affidavit, 411). Habeas
counsel did not learn of their testimony until after the State
habeas hearing.
Habeas counsel's attached affidavit also shows no inex-
cusable neglect regarding the testimony of both of these persons
(Affidavit, 443-10). 4
Habeas counsel interviewed both petitioner and his sister,
Betty Myers, regarding the particular ineffective assistance claim.
Both advised that they had not been asked by John Turner to supply
the names of potential sentencing phase witnesses. When habeas
counsel interviewed John Turner, Turner advised that his memory
was hazy regarding that matter, and that he did not recall speaking
with Betty Myers regarding sentencing-phase witnesses (Affidavit,
16).
Given the pre-hearing information, counsel arranged for
the appearance at the State habeas hearing of Betty Myers. Counsel
also offered, by affidavit, the testimony of four persons whose
names were given to counsel by Betty Myers (Emma Owens, Myrtle
Bates, Thomas Adger, and Mrs. Thomas Adger). Counsel also arranged
for the testimony of John Turner. Habeas counsel anticipated that
such would be acompelling factual showing that trial counsel had
failed to pursue a readily available source (Betty Myers) of
sentencing-phase witnesses (Affidavit, (47-8).
At the State habeas hearing, trial counsel's conclusory
testimony (Habeas Tr. 81-82) was markedly different. His memory
was no longer hazy - he recalled asking petitioner's sister for
sentencing-phase witness names.
It was only during the course of trial counsel's testi-
mony at the State habeas hearing that Reverend Robert Johnson's
presence in the pretrial stage of petitioner's trial was suggested
to habeas counsel (Affidavit, 42).
Habeas counsel's efforts to present factual support for
this ineffective assistance of counsel claim cannot be characteriz-
ed as inexcusable neglect. To require counsel to have pursued
additional channels would have required habeas counsel to (1) dis-
credit the pre-hearing statements made to him by petitioner and his
sister, Betty Myers; (2) ignore the ease with which Betty Myers
was able to supply names of persons willing and able to offer
sentencing-phase testimony; and (3) anticipate that trial counsel's
hazy memory and inability to recall any conversations with Betty
Myers regarding sentencing phase witnesses would change at the State
habeas hearing. Neither the failure to do any one of those three
1/
“Although it should be noted that trial counsel's testimony at the
State habeas hearing is not a specific recollection of any particu-
lar conversation with Betty Myers, but rather simply an assertion
that he must have done so because "I have always made it a practice
to bring some relative. . to come in." (Tr. 82.) The fact that
trial counsel made it a practice to try to do so does not mean he
had a specific conversation with Betty Myers.
things, nor the failure to do all three combined is inexcusable
neglect. It is not neglect at all. Rather, it is a reasonable
effort to present evidentiary support for a claim which was
undermined by the unexpected change in testimony of trial counsel.
Townsend v. Sain, 372 U. S. 293 (1963) makes appropriate
the receipt of material evidence in support of a constitutional
claim in these circumstances, and the failure to develop that
material evidence at the state proceeding is not attributable
to petitioner's inexcusable neglect nor deliberate bypass.
As to any question of failure to exhaust, petitioner
incorporates by reference the authority previously cited to the
Court in his March 21, 1983 memorandum, at footnote 2, pages 2-3.
Further, petitioner notes that the answer filed by the respondent
in this action admits that petitioner has "fully exhausted his
available state remedies" (Answer and Response, at 2). Under
applicable authority, because the exhaustion requirement is non-
jurisdictional, it may be waived by the respondent. Collins v.
Estelle, 474 F. 24 989 (5th Cir. 1973); Houston v. Estelle, 569
F. 2d 372, 375 (5th Cir. 1978). Nowhere has the respondent
asserted in this action that any claim raised by the petitioner
has not been satisfactorily exhausted.
IT. SIMILARLY, THERE HAS BEEN NO DELIBERATE BYPASS
NOR INEXCUSABLE NEGLECT WITH RESPECT TO
GWENDOLYN SHARP'S TESTIMONY.
Habeas counsel's affidavit shows with Gwendolyn Sharp
as well that (1) there has been neither deliberate bypass nor (2)
inexcusable neglect (Affidavit, 9411).
The primary difference between Gwendolyn Sharp and
Reverend Johnson is that the state habeas record is silent regard-
ing whether trial counsel had actual knowledge of Gwendolyn Sharp
prior to the state court trial. However, if he did not, he should
have learned of her, she being petitioner's ex-wife. Trial counsel
testified that he did make inquiries regarding petitioner's
background, including his high school experience (State Habeas Tr.,
at 83). Trial counsel's inquiries to petitioner should have in-
cluded questions regarding whether he had been married, and whether
he had children. Had trial counsel made those inquiries, he would
have had knowledge of Gwendolyn Sharp as another potential sentenc-
ing-phase witness.
Therefore, trial counsel's failure to contact her is a
material fact which should be developed before this Court.
CONCLUSION.
For the foregoing reasons, the Court should reconsider
its Order of October 8, 1983, and permit an evidentiary hearing
with respect to the proffered testimony of Reverend Robert Johnson
and Mrs. Gwendolyn Sharp. In the alternative, their affidavits
should be made a part of the record.
Respectfully submitted,
[Sort Foes) ROBERT H.
1515 Healey building
Atlanta, Georgia 30303
(404) 522-1934
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
ve CIVIL ACTION FILE NO. C81-2434A
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
AFFIDAVIT OF ROBERT H. STROUP, ESQ.
STATE OF GEORGIA)
) ss:
COUNTY OF FULTON)
Personally appeared before the undersigned officer, duly
authorized by law to administer oaths, ROBERT H. STROUP, who
being duly sworn on oath, deposes and says as follows:
1. My name is Robert H. Stroup. I am more than twenty-one
years of age, and am under no legal disability of any kind. This
affidavit is given in response to the Court's Order entered April
Y, 1983.
2. TI did not learn of the existence of Reverend Johnson. or
the possibility of his having relevant testimony, until after the
State habeas hearing. In fact, John Turner's reference to Reverend
Johnson, made during the course of the State habeas hearing, was
the first mention of him I heard during the course of the prooceedings
in this case.
3. Given the course of the proceedings prior to the State
habeas corpus hearing on January 30, 1981, it is fob: SurbPieing
that I did not learn of Reverend Johnson. On December 10, 1980,
I was advised by the Fulton County District Attorney's office
that McCleskey would be resentenced on December 19, 1980. I
began work on the State habeas the next day -- December 11, 1980.
4. Over the course of the next seven weeks (with one of
those weeks being Christmas vacation), I spent nearly 130 hours
preparing for the State habeas hearing. Included in the preparatory
work was contacting in excess of 35 different persons whom I had
identified as potential witnesses, or as persons who might lead to
potential witnesses. The persons who were contacted were related
to a number of different habeas issues which petitioner had raised
in this petition.
5. I had sole responsibility for preparing for the State
habeas hearing -- with the exception of assistance by New York
co-counsel on the expert testimony offered by affidavit in support
of the arbitrary and capricious claims.
6. As for the ineffective assistance claim based on trial
counsel's failure to pursue available channels for potential
sentencing phase witnesses, I spoke with both petitioner and his
sister, Betty Myers. Both of them advised me prior to the State
habeas hearing that John Turner had not sought from them the names
of potential sentencing phase witnesses, although both had dis-
cussed the case with him from time to time. I also spoke with
John Turner regarding this question prior to the State habeas
hearing. He told me his memory was hazy regarding conversations
with petitioner and his family regarding sentencing phase
witnesses. And, he told me that he did not recall ever having
asked petitioner's sister, Betty Myers, for the names of persons
who might be willing to be sentencing-phase witnesses.
7. I asked Betty Myers to supply me with names of persons
whom she would have supplied to John Turner if she had been asked
prior to petitioner's state court trial, and she supplied me with
the names of Emma Owens, Myrtle Bates, Thomas Adger, and Mrs.
Thomas Adger.
8. Because of the ease with which Betty Myers was able to
supply me with names of potential sentencing phase witnesses, and
because of the information from both Betty Myers and John Turner
to the effect that Turner had not contacted her for those names,
I did not believe it was necessary, prior to the State habeas
hearing, to obtain names of additional witnesses in support of
this ineffective assistance claim.
9. John Turner's testimony at the one-day State habeas hear-
ing that he recalled having asked Betty Myers for sentencing-phase
witness names (Tr. 82), took me completely by surprise. It was
only after that testimony that the existence of other independent
avenues to sentencing phase witnesses (over and above Betty Myers)
became important.
10. The same considerations apply regarding Gwendolyn Sharp.
She is another potential source of sentencing-phase testimony,
and it is immaterial in her case whether trial counsel actually
knew of her existence prior to trial. He should have learned
of her existence, through conversations with petitioner and his
family, and then contacted her.
11. Habeas counsel did not learn of Gwendolyn Sharp's
availability as a sentencing phase witness until after the State
habeas hearing. The reasons are the same as outlined above with
respect to Reverend Johnson. Because habeas counsel believed he
would show at the habeas hearing trial counsel's failure to
pursue an available line to sentencing phase witnesses (Betty Myers)
there was no need to seek out additional witnesses.
This Rg day Of April, 1983.
RoGrent Ar SBA (LT)
ROBERT H. STROUY
Subscribed and sworn to before me,
this Voz day of April, 1983.
(il Ty iene
NOTARY PUBL Gz:
bY, Uyryissicn Exp res June 19 [G24 ve # iy wy i ye JE
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of
the within and foregoing "Petitioner's Supplemental Memorandum
In Support of Motion to Reconsider" upon Nicholas G. Dumich,
Esq., Assistant Attorney General, 132 Judicial Building, Atlanta,
Georgia 30334, by depositing a copy of same in the United States
Mail, first-class postage prepaid.
HA day of April, 1983.
Robert. Sse
This
ROBERT H. STROUP /
¢
“ 3 11. S
IN THE UNITED STATES DISTRICT COURT
on 171983
FOR THE NORTHERN DISTRICT OF GEORGIA// Eh
ATLANTA DIVISION i fi
WARREN McCLESKEY,
Petitioner,
-against- - 4 oIVIL ACTION
NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER'S MOTION FOR DISCOVERY
Petitioner Warren McCleskey, by his undersigned counsel,
moves this Court, pursuant to Rule 6 of the Rules Governing 2254
Cases in the United States District Courts and Rules 33(a) and 34(a)
of the Federal Rules of Civil Procedure, for an order granting
petitioner leave:
(i) to serve on respondent Walter D. Zant the annexed
Interrogatories,;
(ii) to serve on respondent the annexed Request for
Production of Documents;
(iii) to serve on respondent the annexed Notice of
Depositions.
In support of this motion, petitioner submits the
accompanying memorandum of law, demonstrating that this request
for discovery has been made for good cause.
Dated: April 8, 1983 Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY: [tent X. reap
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- = . CIVIL ACTION
NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
NOTICE OF DEPOSITIONS
TO x Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334
PLEASE TAKE NOTICE that the petitioner in the above-
captioned action, pursuant to leave of court heretofore granted
by order dated , Will take depositions of
the following persons upon oral examination pursuant to the Federal
Rules of Civil Procedure and the Rules Governing Section 2254
Cases in the United States District Courts, before a notary public
or before some other officer authorized by law to administer oaths,
in the office of Robert H. Stroup, 1515 Healey Building, Atlanta,
Georgia 30303, at the times and dates to be set by the Court:
(1) Each expert witness respondent either anticipates,
plans or expects to call at trial, as identified in Respondent's
Answer to Interrogatory Number One of Petitioner's First Interroga-
tories to Respondent.
(2) Each nontestifying expert witness upon whose
opinions or analyses respondent either expects, plans or intends
to rely, as identified in Respondent's Answer to Interrogatory
Number Two of Petitioner's First Interrogatories to Respondent.
PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 45(b)
of the Federal Rules of Civil Procedure, each deponent will be
required to bring with him or her all documents requested in
Petitioner's First Request for Production-of Documents and
Interrogatories, including but not limited to, an up-to-date
curriculum vitae and a bibliography listing all his or. her
publications. In addition, each deponent will be required to
bring with him or her all documents not otherwise requested,
but not including those documents supplied by petitioner to
respondent, upon which the deponent relies or refers in formulating,
substantiating or explaining his or her analyses or opinions.
The oral examination will continue from day to day
until completed. You are invited to attend and cross-examine.
Dated: April 8, 1983 Yours, etc.
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY: Rpt N. Screun
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a
copy of the within and foregoing Petitioner's Motion
for Discovery, and attached Discovery Requests, upon
Nicholas G. Dumich, Esqg., Assistant Attorney General,
132 State Judicial Building, 40 Capitol Square, S. W.,
Atlanta, Georgia 30334, by depositing a copy of same
in the United States Mail, adequate postage affixed
thereto.
This Te. day of April, 1983.
: Robert Ror,
ROBERT H. STROUP
wk A
¥ 5 # « vill
« ¢ FJ
- > & : i
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- : CIVIL ACTION
: NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER'S FIRST REQUEST
FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil
Procedure, respondent Walter D. gant ("respondent") is hereby
requested by counsel for petitioner Warren McCleskey ("petitioner")
to produce for inspection and to make available for copying at the
office of respondent, on April 27,.,:198%, at 10:00 A.M., the Ffollow-
ing documents:
Definitions
For the purpose of this request, the terms below will
have the following definitions:
(a) "State" shall mean the State of Georgia and
all of its departments and agencies -- whether executive, legislative
or judicial -- including all employees, agents, and officers thereof,
and political subdivisions, including all local and city entities,
agencies, and all officials, agents or employees thereof, that fall
under the jurisdiction, authority, or control of the state govern-
ment. The "State" shall include, but not be limited to, the
Supreme Court of Georgia, the Georgia Department of Law, the
Georgia Department of Coviections, the Georgia Department of
Offender Rehabilitation, the Georgia Bureau of Investigation,
the Georgia State Patrol, the Fulton County Sheriff's office,
the Fulton County District Attorney's office, the Fulton County
Superior Court, and the Atlanta Police Bureau.
(b) "County" shall mean Fulton County, Georgia
and all departments, agencies and offices, including all officers,
agents or employees thereof, that derive their authority or funding
from the County.
(c) "City" shall mean the City of Atlanta, Georgia
and all departments, agencies and offices, including all officers,
agents or employees thereof, that derive their authority or funding
from the City of Atlanta.
(d) "Law Enforcement Officers" shall include all
peace officers, corrections employees or firemen in the line of
duty, as intended by Georgia Code Annotated §27-2534.1(8).
(e) "Document" shall include all documents, as
defined in Rule 34 of the Federal Rules of Civil Procedure, that
are in possession or custody of the State, County or City, or
subject to their custody or control, regardless of the originator.
Unless otherwise qualified, the term "document" includes but is
not limited to correspondence, reports, files, memoranda, notes,
studies, articles, books, pamphlets, computer printouts, or other
data available nsany information retrieval system or any form
whatsoever.
(f) All other words and terms shall have their
usual or ordlnars Assning or usage. If respondent considers any
term ambiguous, respondent shall indicate the definition, or
meaning chosen to be applied.
Documents Requested
l. State, County or City documents, whether official
or unofficial and whether intended for publication or for internal
use only, which from 1973 to 1983 have purported to guide, advise,
set policy for, or affect prosecutorial decisions or procedures
with respect to charging a criminal offense, plea negotiations
or sentencing in criminal cases, including but not limited to
any policies or guidelines that concern the appropriate offense
or degree of offense to charge in homicide cases, the considerations
that should govern plea bargaining decisions in homicide cases, and
the considerations that should govern decisions on whether or not
to seek capital punishment in homicide cases.
2. All documents from all homicide cases originating
in Fulton County between 1973 and 1983, whether official or unofficial,
which reflect, refer to or summarize the reason for or considerations
relevant to the decision in each case.
(i) to charge one homicide offense or degree
of offense, rather than another;
(ii) whether to plea bargain; and
(iii) whether or not to seek a sentence of death.
rd,
3. All State, County or City documents whether
official or unofficial, which in any way refer, relate or pertain
to criminal proceedings against petitioner Warren McCleskey or
any of High co-detendsivts, Ben Wright, David Burney and Bernard
Dupree, including but not limited to documents in those four
coset. Soncerning what offense(s) or degree of offense(s) to
charge, whether or not to plea bargain, and whether or not to
seek the death penalty.
4. All documents, whether official or unofficial, and
whether for internal or external use or for publication, whieh
discuss, refer to or otherwise concern, in whole or in part, the
issue of racial disparity and/or racial discrimination in any and
all aspects of jury selection, jury composition, prosecutorial
charging, plea negotiations or sentencing in criminal cases in the
State, County and/or City, and which: (i) have been authorized,
prepared, or funded by or for the State, County or City since 1973
or (ii) are in the possession of the State, County or City and are
documents on which respondent intends to rely in this case.
5. All State, County or City documents prepared or
gathered pursuant to Georgia Code Annotated §27-2537, which evaluate
or address Georgia's capital punishment statute, or which study
or analyze the application of that capital punishment statute
o a
and/or the capital-sentencing proceedings conducted thereunder,
in the State, County and/or City since 1973.
Dated: April 8, 1983 Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY: KotrerttX. Basen
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- CIVIL ACTION
: NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
rd
PETITIONER'S FIRST INTERROGATORIES TO RESPONDENT
Pursuant to rule 33 of the Federal Rules of Civil
Procedure, Warren McCleskey ("petitioner") propounds the following
interrogatories to respondent Walter D. Zant ("respondent").
Respondent is requested to answer these interrogatories in writing
and under oath within thirty (30) days after service.
These interrogatories are deemed to be continuous,
and respondent is requested to supplement or amend its answers
to these interrogatories if additional information that makes
previous answers to these interrogatories inaccurate or incom-
plete becomes known to respondent at any time prior to or during
the evidentiary hearing in this case.
If the answer to any interrogatory identifies any document
(as that term is defined herein) in the possession, custody or
control of respondent, petitioner hereby requests, pursuant to
»
3
. ®
Rule 34 of the Federal Rules of Civil Procedure, that each
such document either be attached to the answer to these interroga-
tories or be made available for inspection and copying on or before
April 27, 1983. i.
The following terms, when used in these interrogatories,
will have the following definitions:
(a) "State" shall mean the State of Georgia and all
of its departments and agencies -- whether executive, legislative os
or judicial -- including all employees, agents, and officers thereof,
and ‘political subdivisions, including all local and city entities,
agencies, and all officials, agents or employees thereof, tHat fall undef
the jurisdiction, authority, or control of the State government.
The "State" shall include, but not be limited to, the Supreme Court
C
L
D
4
ot
{
of Georgia, the Georgia Department ‘of Law, the Georgia Department
of Corrections, the Georgia Department of Offender Rehabilitation,
‘74
the Georgia Bureau of Investigation, the Georgia State Patrol, the
Fulton County Sheriff's office, the Fulton County District Attorney's
office, the Fulton County Superior Court, and the Atlanta Police
Bureau.
(b) "County" shall mean Fulton County, Georgia and all
departments, agencies and offices, including all officers, agents
or employees thereof, that derive their authority or funding from
the County.
(c) "City" shall mean the City of Atlanta, Georgia and
[02
]
all departments, agencies and offices, including all officers,
agents or employees thereof, that derive their authority or funding
from the City of Atlanta.
(d) "Law Enforcement Officers" shall include all
peace officers, corrections employees or firemen in the line of
duty, as intended by Georgia Code Annotated §27-2534.1((8).
(e) "Document" shall include all documents, as defined
in Rule 34 of the Federal Rules of Civil Procedure, that are in
possession or custody of the State, County or City, or subject
to their custody or control, regardless of the originator.
Unless otherwise qualified, the term "document" includes but is
not limited to correspondence, reports, files, memoranda, notes,
studies, articles, books, pamphlets, computer printouts, or other
data available in any information retrieval system or any form
whatsoever.
(f) "Challenge" shall include any written complaint,
petition, charge or other legally recognized and/or sanctioned
means to initiate formal or informal investigatory, admit strative
or judicial proceedings with respect to the subject of the challenge.
(g) All other words and terms shall have their usual
or ordinary meaning or usage. If respondent considers any term
ambiguous, respondent shall indicate the definition, or meaning
chosen to be applied.
Interrogatories
The following are petitioner's interrogatories to
respondent:
1. Pursuant to Rule 26(b)(4) (A) of the Federal Rules
of Civil Procedure, identify each expert witness respondent either
anticipates, plans or expects to call at trial. For each such
expert witness: (a) append an up-to-date curriculum vitae and a
bibliography listing all his or her publications; (b) state the
subject matter on which the expert is expected to testify; (c)
state the substance of the facts and opinions to which the expert
is expected to teRtity and a summary of the grounds for each opinion.
2. Pursuant to Rule 26(b)(4)(B) of the Federal Rules of
Civil Procedure, identify the nontestifying expert witnesses upon
whose opinions or analyses respondent either expects, plans or
intends to rely. For each nontestifying expert witness, append
an up-to-date curriculum vitae and a bibliography listing all his
or her publications.
3. List all objections, criticisms or deficiencies of
the data base, data-gathering methods, analyses, and conclusions
of Professor David C. Baldus reflected in the Georgia Procedural
Reform Study and the Georgia Charging and Sentencing Study, in all
of their various forms, identified in earlier filings in this action.
State objections with particularity, include detailed reasons for
objections, and identify all sources of information upon which
each objection and criticism is based. If the objections are
based on errors regarding information known only to the respondent,
provide the correct information or data in hard copy or machine-
readable form.
4. List all objections, criticisms and/or defenses
that respondent intends to rise concerning getitionerls claims
and proof that the death penalty in the State of Georgia and Fulton
County is applied in an arbitrary and racially disciminatory manner
in violation of the Eighth and Fourteenth Amendments. Objections,
criticisms and defenses should be stated with particularity.
Include detailed reasons for objections and criticisms and identify
all sources of information upon which objections, criticisms and
defenses are based. Include any documents, studies or reports
relied upon by the respondent in formulating or arriving at his
objections, criticisms and defenses which address or concern, in
whole or in BAPE, petitioner's claim that the death penalty in
Georgia and/or Fulton County is applied in an arbitrary or racially
discriminatory manner.
5. For each of the cases included in Appendix A,
indicate the race of the victim.
6. For each of the cases included in Appendix B that
resulted in a murder conviction, indicate whether a ‘penalty trial
was or was not held.
7. For each of the cases included in Appendix C, indicate
whether or not the prosecutor formally or informally offered or
agreed to plea bargain with the defendant. If the prosecutor
offered or agreed to a plea bargain, indicate:
(a) what offense or offenses the offender was asked
to plead guilty to pursuant to the proposal or bargain;
(b) whether the offender agreed to the plea bargain;
(c) the considerations that led the prosecutor to
offer or agree to a plea bargain;
(d) why no plea arrangement was ultimately made or
agreements reached, if one was not made or reached.
8. List the names of all offenders in Georgia convicted
of the murder or manslaughter of a law enforcement officer in the
State of Georgia between and including 1973 and the present. In-
dicate for each stich offender:
(a) the date of conviction;
(b) the race of the offender(s) and the victim(s);
(c) the county of conviction;
(d) the offense of which the offender was ultimately
convicted;
(e) the sentence received;
(f) whether a capital sentencing hearing was held in
the case; and
(g) whether a guilty plea was accepted by the prosecutor.
9. Identify by date of filing, official title, court
number, parties, and attorneys for all parties, any and all private,
judicial, administrative or agency challenges made against the
County grand juries, grand jury forepersons or grand jury selection
procedures from 1970 to the present on the ground that: (a) jury
selection was conducted in a racially discriminatory manner, or (b)
the jury composition was racially imabalanced.
10. Same as 9. for petit juries.
ll. Identify by date of filing, official title, court
number, parties and attorneys for all parties, any and all private,
administrative, agency, judicial, SEEidin] or unofficial, challenges
made against the County from 1970 to the present alleging unconsti-
tutional prosecutorial use of peremptory challenges to exclude
- DB -
blacks or other minorities from grand and/or petit juries. For
each such challenge:
(a) describe the challenge made;
(b) give the result of the challenge.
12. tdentify by name, rank and date of incident all
police officers or other law enforcement personnel in the City
or County snainet whom challenges have been made or filed, or
who have been censured, reprimanded, warned or terminated between
1973 and 1983 for using racial epithets or for engaging in other
speech or conduct which was alleged or considered to discriminate
against or reflect negatively on blacks or other minorities. Attach
all documents, whether formal or informal, official or unofficial,
reflecting any such challence, and any official action, findings
or sanction, or any other setilenent or outcome reached with regard
to the challenge.
13. Indicate whether any County prosecutions have been
the subject of challenges or have been warned, reprimanded,
censured or terminated, or whether any criminal convictions in the
County have been reversed between 1970 and the present due to prose-
cutorial comments allegedly made during or about a criminal trial
which reflected negatively on blacks or other minorities. Attach
all documents, Nhatvier formal or informal, official or unofficial,
reflecting any such challenge, and any official action, findings
or sanction, or any other settlement or outcome reached with regard
to the challenge.
»
’
«YY
v
14. List all challenges that were filed or lodged against
either the County Sheriff's office, the Atlanta Police Bureau
or the Fulton County Superior Court (or any of their subdivisions,
agents or employees), between 1970 and the present suggesting,
alleging or alluding to some form of racial discrimination, includ-
ing but not limited to, police insensitivity to minorities or the
minority community, police brutality affecting minorities, unfair
treatment of black defendants, lack of or insufficient police or
other official enforcement of the criminal laws in cases involving
criminal offensesagainst black victims, discrimination against
minority inmates in jails and/or correctional facilities, and/or
employment discrimination. Attach all documents, whether formal
or informal, official or unofficial, reflecting any such challenge,
and any official action, findings or sanction, or any other settle-
ment or outcome reached with regard to the challenge.
15. List all lawsuits not described in an answer to a
previous interrogatory lodged against the State, County or City
involving allegations of racial discrimination in any aspect of
the criminal justice system in the State, County or City (including
but not limited to allegations of racial discrimination by the
Fulton County Sheriff's office, the Atlanta Police Bureau, the
Fulton County District Attorney's office or the Fulton County
Superior Court) between 1970 and the present, including, but not
limited to police brutality suits, suits alleging racial discrim-
ination against minority inmates in jails and/or correctional
facilities and employment discrimination suits. Attach all docu-
ments, whether formal or informal, official or unofficial,
reflecting any such challenge, and any official action, findings
or sanction, or any other settlement or outcome reached with
regard to the challenge.
16. List all challenges filed or lodged against either
‘the decrais Department of Corrections, the Georgia Bureau of In-
vestigation, the Georgia Department of Public Safety, the Georgia
Department of Law, or the Supreme Court of Georgia between 1970
and the present suggesting, alleging or alluding to some form of
racial discrimination, including but not limited to, insensitivity
to minorities or to the minority community, brutality atfecting
minorities, unfair treatment of black offenders, lack of or in-
sufficient police or other official enforcement of the criminal
laws in cases involving criminal offenses against black victims,
employment discrimination or any and all aspects of racial discrim-
ination in corrctivhal facilities. Attach all documents, whether
formal or informal, official or unofficial, reflecting any such
challenge, and any official action, findings or sanction, or any
other settlement or outcome reached with regard to the challenge.
17. List all lawsuits not described in an answer to a
previous interrogatory filed or. lodged against the State including
but not limited to the Georgia Department of Corrections, the
Georgia Bureau of Investigation, the Georgia Department of
Public Safety, the Georgia Attorney General's office or the
Supreme Court of Georgia, involving or alleging racial discrimina-
tion in any aspect of the criminal justice system in Georgia
between 1970 and the present, including but not limited to, insensi-
tivity to minorities or to the minority community, brutality
affecting minorities, unfair treatment of black offenders, lack
of or insufficient police or other official enforcement of the
criminal laws in cases involving criminal offenses against black
victims, employment discrimination or any and all aspects of racial
discrimination in correctional facilities. Attach all documents,
whether formal ot intormal; official or unofficial, reflecting any
such challenge, and any official action, findings or sanction, or
any other settlement or outcome reached with regard to the challenge.
18. For each year from 1973 to the present, state the
percentage black employees represented of the total number of
employees in the State, City and/or Fulton County in the job
categories listed below:
(a) 1a enforcement officers in Fulton County Sheriff's
office; 2
(b) supervisory officers in the Fulton County Sheriff's
office;
(c) law enforcement officers in the Atlanta Police
Bureau,
(d) supervisory officers in the Atlanta Police
Bureau;
(e) bailiffs in courts with jurisdiction over homicide
cases;
(f) judges in courts with trial or appellate jurisdiction
over homicide cases;
(g) court reporters in courts with trial or appellate
jurisdiction over homicide cases;
(h) clerks in courts with trial or appellate jurisdiction
over homicide cases;
(i) law clerks in courts with trial or appellate
- 10 -
jurisdiction over homicide cases;
(j) jury commissioners in the Fulton County Court
system;
(k) petit jurors, grand jurors and foremen in courts
with jurisdiction over homicide cases.
Dated: April 8, 1983 Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
JAMES S. LIEBMAN.
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
BY: EOntN. Sateen
-
i »
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- CIVIL ACTION
: NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
MEMORANDUM OF LAW IN SUPPORT CF
PETITIONER'S MOTION FOR DISCOVERY
Petitioner Warren McCleskey submits this memorandum of
law in support of his motion for discovery. Petitioner is a
death-sentenced prisoner at the Georgia Diagnostic and Classification
Center. On September 30, 1982, this Court granted petitioner the
right to conduct an evidentiary hearing on his claim that the
death penalty in Georgia has been administered in a racially
discriminatory and arbitrary manner.
On November 19, 1982, respondent moved in this Court,
pursuant to Rule 6 of the Rules Governing Section 2254 Cases in
the United States District Courts and Rules 30(a) and 45 of the
Federal Rules of Civil Procedure, for an order permitting the
parties to engage in pre-hearing discovery concerning the bases
for petitioner's statistical conclusions. Respondent's motion
was granted by this Court.
-
L
v
Petitioner has cooperated fully and promptly with
respondent's discovery efforts. On January 10, 1983, petitioner
filed timely answers to respondent's first interrogatories,
posing an objection to only one question which was too vague
and overbroad for response. On February 4, 1983, pursuant to
respondent's request for production of documents, petitioner's
counsel copied and forwarded to respondent, in the form respondent
requested, all the underlying data from the Georgia Procedural
Reform Study and the Georgia Charging and Sentencing Study,
together with codebooks, task files, and related material.
Additional items sought by respondent will be forwarded by peti-
tioner's counsel as soon as they become available.
Petitioner has been informed that after respondent's :
experts have sufficiently analyzed the data, respondent intends to
depose Professor David Baldus and perhaps additional experts. At
that time petitioner's experts will reply promptly to all reasonable
requests by respondent and will make available relevant information
sought by respondent.
Petitioner has sought to cooperate fully with respondent's
discovery efforts. Consequently, petitioner supported respondent's
January 18, 1983 motion for enlargement of time for discovery.
In petitioner's January 28, 1983 response to that motion, peti-
tioner acknowledged that both the volume and the complexity of
the studies to be presented by petitioner's experts and the sig-
nificance of that evidence for his own case and that of other death-
sentenced inmates in Georgia, necessitate an open exchange of
information and clarification of technical issues related to
petitioner's data at the discovery stage to ensure a more efficient
and comprehensive evidentiary hearing.
Toward that same end, petitioner now moves this Court
for an order Pernitiing discovery from respondent of two types
of materials. Like respondent, petitioner requests an opportunity
before trial to review and examine the social scientific and
empirical materials on which respondent intends to rely, including
studies, underlying data and documents, and expert testimony. In
addition, petitioner requests an opportunity to review and examine
certain materials, exclusively in the custody and control of
respondent, which directly bear on the issue of racial discrimina-
tion and arbitrariness in the application of the death penalty in
Georgia.
I. THIS COURT SHOULD EXERCISE ITS
DISCRETION TO PERMIT PETITIONER
TO CONDUCT RECIPROCAL DISCOVERY
IN THIS CAPITAL CASE TO ENABLE
PETITIONER TO CONDUCT A FULL AND
FAIR EVIDENTIARY HEARING.
A. The Authority of this Court to Grant Discovery
Rule 6(a) of the Rules Governing Section 2254 Cases in
the United States District Courts expressly permits this Court to
authorize depositions or other discovery by any party in prepara-
tion for an evidentiary hearing:
"A party shall be entitled to invoke the
processes of discovery available under
the Federal Rules of Civil Procedure if,
and to the extent that, the judge in the
exercise of his discretion and for good
cause shown grants leave to do so, but
not otherwise.”
5
Under 28 U.S.C. §2246, the use of various discovery
devices in habeas proceedings has been authorized for over thirty
years and has frequently been employed by counsel for respcndent
in habeas corpus proceedings before this Court. See, e.g., Fortner
v. Balkcom, 380 F.2d 816 (5th Cir. 1967); Molignaro v. Dutton, 373
F.2d 729 (5th Cir. 1967); Phillips v. Smith, 300 F. Supp. 130
(S.D. Ga. 1969). See also Harris v. Nelson, 394 U.S. 286, 300
(1969), a case decided prior to the development of the present
Rules, in which the Supreme Court clearly authorized discovery pro-
cedures in federal proceedings. As the Supreme Court held in Harris
V. Nelson, moreover, the federal courts have more than the power to
order discovery in federal habeas corpus proceedings: '"where specific
allegations before shetaourt show reason to believe that the peti-
tioner may, if the facts are fully developed, be able to demonstrate
that he is confined illegally, it is the duty of the court to provide
the necessary facilities and procedures for an adequate inquiry."
Id. (Emphasis added.)
B. The Reasons Why this Court Should Exercise Its Discretion
to Grant Discovery
Having established this Court's authority to direct the
discovery requested by petitioner, we would now direct the Court
briefly to those factors strongly weighing in favor of the exercise
of that discretion in this case.
First, in an evidentiary hearing such as this, involving
large-scale statistical analyses, discovery by respondent alone
cannot adequately resolve the preliminary questions concerning the
validity of the underlying data, the appropriateness of the methods
AEE ER
of interpretation employed and the conclusions reached by peti-
tioner's experts in preparation for the evidentiary hearing.
Because the issues to be presented are statistically complex and
voluminous, a free, two-way flow of information between respondent
and petitioner stiould be encouraged before trial to assure that
the evidentiary hearing will proceed in the most efficient and
constructive manner possible.
With that goal in mind, petitioner has fully and promptly
complied with all of respondent's requests for discovery thus far
and intends to continue doing so. Further, petitioner recognizes
the logic of allowing respondent to begin the discovery process first.
For example, only after respondent's experts have had the opportunity
to review petitioner's data and develop questions or criticisms of
it, can petitioner depose respondent's experts to ascertain the
principle criticisms of the Baldus studies. However, now that
respondent's motion for discovery has been granted and his initial
discovery requests have been satisfied, petitioner submits that his
motion for like discovery is timely, and should be granted.
Second, the value of the evidentiary hearing granted
by order of this court will be severely undermined if petitioner
is not permitted to examine documents which are exclusively in
the custody and control of respondent and which directly reveal
how the death penalty was in fact administered in individual
cases in Georgia and whether racially discriminatory or other
arbitrary factors played a part in that administration. Although
petitioner's expert, Professor Baldus, has examined all publicly
available files in the individual cases -- which, he concludes,
strongly support petitioner's contention that the death penalty
is applied arbitrarily and discriminatorily on the basis of race
in Georgia -- neither he nor petitioner has had access to the
relevant internal files of the various law enforcement and
prosecuting agencies in Georgia and Fulton County which are
responsible for investigating potentially capital crimes, charging
and plea bargaining with defendants in potentially capital cases,
and otherwise administering the death penalty. Obviously, those
files may well contain direct evidence of discrimination or arbi-
trariness in capital law-enforcement and sentencing in Georgia.
Inasmuch as Professor Baldus' work so clearly indicates the
possibility of unconstitutional sentencing practices, petitioner
has plainly met the necessary threshold showing under Rule 6(a)
that his request for the specified documents is calculated to
reveal relevant evidence in support of his constitutional claim.
Similarly, it would be unfair to permit respondent to
refute Professor Baldus' conclusions by positing "neutral" explana-
tions for the racial disparities his data show (see, e.g., Spinkellink
Vv. Wainwright, 373 F.2d 582, 612-16 (5th Cir. 1978)) without first
providing petitioner with access to the requested law enforcement
and prosecutorial documents, since those documents might well
conclusively demonstrate that any such allegedly '"neutral" con-
siderations do not in fact explain the series of decisions that
resulted in the gross racial disparities revealed in the data.
In addition, petitioner requests access to information concerning
racial discrimination in Fulton County, Georgia to defend specifically
against any charge, such as the one raised in Maxwell v. Bishop,
- 6
"
bi ‘
398 F.2d 138, 148 (8th Cir. 1968), that petitioner has failed
to establish a particular incident of racial discrimination in the
particular county in which he received his sentence of death.
This Court has the clear authority, indeed the duty,
to grant petitioner discovery under these circumstances. As
the Supreme Court held in Harris, drawing upon the powers granted
federal courts by the All Writs Act, 28 U.S.C. §1651:
"[alt any time in the [habeas corpus]
proceedings, when the court considers
that it is necessary to do so in order
that a fair and meaningful hearing may
be held . . .. , it may issue such writs
and . . . authorize such proceedings
with respect to development . . . of the
facts relevant to the claims advanced by
the parties . +. « "
Harris v. Nelson, 304 U.S, at 300.
Moreover, petit ioe is an inmate presently under sentence
of death in the State of Georgia. While the imposition of a capital
sentence may not affect the substantive standards to be employed in
evaluating petitioner's constitutional claims, it unquestionably
demands a greater regard for procedural fairness, for in death
cases courts must be "particularly sensitive to see that every
safeguard is observed." Gregg v. Georgia, 428 U.S. 153, 187 (1976).
As Chief Justice Burger emphasized on behalf of the
Supreme Court:
"[T]he penalty of death is qualitatively
different from any other sentence. We are
satisfied that this qualitative difference
between death and other penalties calls for
a greater degree of reliability when the death
penalty is imposed.”
Lockett v. Ohio, 438 U.S. 586, 603-04 (1978). See Gardner v. Florida,
430 U.S. 349, 357-58 (1977); Woodson v. North Carolina, 428 U.S.
280, 305 (19786). For this reason alone, petitioner respectfully 8]
submits, his request for relevant documents and materials specified
in the accompanying motion should be granted.
Finally, discovery is warranted here on the general
grounds stated by the Supreme Court in Hickman v. Taylor, 329 U.S.
495, 500-01 (1947):
"The pre-trial deposition-discovery
mechanism established by Rules 26 to 37
is one of the most significant innovations
of the Federal Rules of Civil Procedure . . . .
The various instruments of discovery now serve
(1) as ia device . . . to narrow and clarify the
basic issues between the parties, and (2) as
a device for ascertaining the facts, o© ]
tion as to the existence or whereabouts
relative to those issues. Thus civil t
the federal courts no longer need to be c
cut in the dark. The way is now clear .
for the parties to obtain the fullest possible
knowledge of the issues and the facts bef
trial.”
Petitioner respectfully submits that, as in ordinary
civil cases, the proceedings which determine his right to life
should not "be carried out in the dark." "Obviously the facts
[relevant to both the interpretation. and the application of
# constitutional guarantees] should be accurately ascertained and
weighed,” Chastleton Corp. v. Sinclair, 264. U.S. 543, 549 (1924),
and it has been held "a salutary principle that the essential facts
should be determined before passing on grave constitutional questions.
“rr
Polk v. Glover, 305 U.S. 5, 10 (1938); see also, Wilshire Oil Co.
vv. United States, 295 U.S. 100, 102 (1938); Morton Salt Co. V,
City of South Hutchinson, 159 F.2d 894 (5th Cir. 1940).
Here important facts and documents relevant to peti-
tioner's claim that the death penalty is imposed in a racially
discriminatory and arbitrary manner in Georgia have been sought
- 8
by means of discovery from the very agencies and persons charged 7:
with that discrimination and arbitrariness. Petitioner has
endeavored to frame the requests for documents and interrogatories
as narrowly as possible while still obtaining all the information
necessary to meaningfully conduct the evidentiary hearing ordered
by the Court. Petitioner submits, therefore, that the balance of
factors is strongly in favor of permitting him to employ conven-
tional discovery procedures to prepare sdeuntely for that evi-
dentiary hearing and to advocate fully his constitutional claims.
CONCLUSION
For all of the reasons set forth above, petitioner Warren
McCleskey urges that his motion for discovery be granted.
Dated: April 8, 1983 Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG =
JOHN CHARLES BOGER IR
JAMES S. LIEBMAN §
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM >
New York University Law School
40 Washington Square South
New York, New York 10012
BY: Kote Eben : 4
AS
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RAY 1&M
{Rov. 8.82) -
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION FILED IM CLERK'S OFFICE
U. 8 TC. - Atlanta,
WARREN McCLESKEY, : APR 11983
Plaintiff, : oe ZL
; Deputy Cle
vs. 2 CIVIL ACTION
a NO. C81-2434A
WALTER D. ZANT, Superin- 3 : :
tendent, Georgia Diagnostic
and Classification Center, :
Respondent. :
ORDER
This petition for habeas corpus is before the court on
petitioner's motion to reconsider portions of this court's
order of detober 8, 1982 and respondent's opposition there-
to.
In his original motion for an evidentiary hearing be-
fore this court petitioner asserted under his claim of in-
effective assistance of counsel that material facts were not
adequately developed under the standard of Townsend vs.
Sain, 372. 9.3. 293 (1963), regarding trial counsel's failure
to prepare for the sentencing phase of trial. In his first
motion for reconsideration of the court's denial of an evi-
dentiary hearing as to that issue petitioner sought to add
to the record two affidavits of persons who state either
that they would have supplied the names of persons whom
trial counsel could contact regarding petitioner's back-
ground or that they would have testified on petitioner's
X
(Rev. 8:82)
behalf if requested to do so. In its order of October 8,
1982 this court denied petitioner's motion for reconsidera-
tion of the court's denial of an evidentiary hearing as to
the issue of counsel's preparation for the sentencing phase
on the PaELe OF the proffered affidavits of Reverend Robert
Johnson and Gwendolyn Sharp on the ground that these affi-
davits did not appear to be more than merslysdumulative of
the evidence which was before the state habeas court. The
state habeas court had before it the affidavits of five
persons who stated that if contacted they would have testi-
fied on petitioner's behalf.
Petitioner now asks this court to reconsider its order
of October 8, arguing that the record shows that the state
habeas court did not develop material facts relating to the
availability to trial counsel of alternate sources of wit-
"eEges which were left untapped by trial counsel. He argues
that no "due diligence" standard is applicable to state
habeas counsel's failure to present these affidavits to the
state habeas court and asserts that the affidavits are not
merely cumulative to the extent that they show independent
sources of character witnesses which were known to trial
counsel at the time of his representation of petitioner and
which he did not tap. He argues that the need to show that
known, alternative sources of potential witnesses for the
sentencing phase were available to trial counsel was not
necessary until petitioner's trial counsel "unexpectedly
® *
asserted . . . [at the state habeas hearing] that he had
asked Betty Myers [petitioner's sister] for such names, and
the state habeas court credited that testimony despite Betty
Myers' testimony" that trial counsel "had never asked her
for names of persons who could testify at the sentencing
phase . . . . [but] that she had had no difficulty supplying
names of persons to present counsel." Rives. Dairkons are
apparently those whose affidavits were before the state
habeas court.
The Eleventh Circuit Court of Appeals has recently
reviewed the standards which should be followed in deters
mining whether a federal habeas petitioner may-obtain a
federal evidentiary hearing on the ground that material
facts were not adequately developed at the state proceed-
ings. Thomas vs. Zant, No. 81-7675 (February 10, 1683).
The petitioner first Bust show that the fact pertaining to
his federal constitutional claim was not adequately de-
veloped and that the fact was "material" or crucial to de-
velopment of the material facts, and second must show that
the failure to develop the fact at the state habeas pro-
ceeding was not because of petitioner's inexcusable neglect
or deliberate bypass. Either of these may itself require an
evidentiary hearing.
The importance of counsel's duty to investigate in the
context of capital sentencing has been newly evaluated and
emphasized in the Court of Appeals' holding in Washington
PANS 1 &rN
(Rev. 8/82) .
a
Ye
vs. Strickland, 673 F.2d 879 (5th Cir. 1982) (Binding on
this Circuit as a post-September 30, 1981 decision of a Unit
B panel of the Former Fifth Circuit. See Stein vs. Reynolds
Securities, Inc., 667 F.2d 32 (llth Cir. 1982).)
~The petitioner urges that the two affidavits presented
are important to the issue of trial counsel's duty to in-
vestigate for sentencing. As to the affidavit of Reverend
Johnson, it appears from the face of the affidavit that he
was known to petitioner's trial counsel and that trial coun-
sel did not contact him regarding the names of persons whom
he might contact regarding petitioner's background. This
court's examination of the state habeas transcript without
the benefit of citations to the record from counsel reveals
that trial counsel was questioned as follows by Mr. Dumich
for the respondent :
Q: Did you ever consider going up to
the Zion Baptist Church and questioning
anybody over there as far as Mr. McCleskey's
character?
A: No, I had been in contact with the
Reverend there and I had asked Mr. McCleskey's
sister about his church contacts and
participation and based on what Mr.
McCleskey's sister said about it, I
didn't see any fruit there that could be
picked. (H.TR. 90-91).
Trial counsel's alleged. failure to pursue known sources
of witnesses, specifically Reverend Johnson, is relevant to
petitioner's federal constitutional claim of ineffective
assistance and was crucial to the development of material
facts concerning petitioner's claim of ineffective assist-
(Rev. 8/82)
“Le
® »
ance. Trial counsel's alleged failure to ask Reverend John-
son about witnesses for petitioner arguably was not ade-
quately developed at the state habeas hearing. However, it
is not clear that the failure to develop the facts regarding
this issue at the state habeas hearing was not because of
petitioner's inexcusable neglect or deliberate bypass. The
affidavit of habeas counsel is silent Yedarding what habeas
counsel knew about these witnesses. If counsel knew of
these witnesses and of the substance of their testimony at
the time of the state habeas hearing, it is relevant to the
question of inexcusable neglect/deliberate bypass why their
evidence was not presented. If counsel did not know of
these witnesses at the time of the state hearing, it becomes
important to the question of inexcusable neglect why habeas
counsel did not know.
Accordingly, counsel for petitioner is ORDERED to file
within ten (10) days of the filing date of this order an
affidavit showing why the failure to present the testimony
or affidavit of Reverend Johnson was not because of inex-
cusable neglect or deliberate bypass. In this affidavit
petitioner's counsel shall show when they began work on the
state habeas. If that affidavit shows that the failure was
not due to deliberate bypass or inexcusable neglect, no
further hearing on the bypass issue will be had unless the
state creates an issue of fact by opposing affidavits within
ten (10) days of the filing of the affidavit of petitioner's
counsel. The state may, of course, still brief the issue on
the facts presented by the petitioner even if no opposing
affidavits are filed.
As to the affidavit of Gwendolyn Sharp, petitioner's
ex-wife, at far as the court can ascertain from the face of
the affidavit and from resexanination of the record, it does
not appear that Gwendolyn Sharp was Kaown tos trial counsel
at the time of his representation of petitioner. Accord-
ingly, her affidavit is similar to others of the same tenor
previously presented. It does not contain any specific
information not already in the record which may have been
arguably favorable to the petitions: on the issue of sen-
tence. Accordingly, the motion for reconsideration is DE-
NIED as to this point. ‘Further, petitioner, represented by
expert counsel both in the state courts and here in the
habeas proceeding, has made no showing why the information
was not earlier presented (see infra, page 3), nor has he
alleged facts warranting a hearing. Nevertheless, the court
will allow a renewal of the motion upon the making of a
proper showing. The court observes in passing that before a
federal court will entertain a petition for habeas corpus,
it must appear that the petitioner has presented his claims
in the state forum so that they may be adjudicated on their
merits. A state court cannot make a judgment on the merits
unless it is given the chance to consider the relevant evi-
dence. The court is beginning to wonder if there has not
been a failure to exhaust here on the assistance of Cones]
issue. |
Respondent has filed a motion for enlargement of time
for discovery for the purpose of reviewing and analyzing the
raw data contained in Professor Baldus' studies prior to the
professor's deposition and for the purpose of exploring the
subject matter of the potential testimony of Ehzee newly
identified experts for the petitioner. Respondent requests
that the time for discovery be enlarged for 60 days from the
original period established by the court of 60 days from
November 19, 1982. Petitioner has responded to respondent's
motion, stating that he does not oppose the motion. The
Clerk submitted respondent's motion for ruling on Febru-
ary 8, 1983. :
Initially, the court notes that in his response of
January 31, 1983, petitioner noted that he proposed to con-
duct a deposition of respondent's experts once they had
reviewed petitioner's data so that their principal criticism
of Baldus' studies could. be addressed to the greatest extent
possible during the evidentiary hearing. Petitioner indi-
cated that he would file a motion to permit such discovery
within two weeks and that he anticipated no difficulty in
scheduling and completing the discovery before the end of
the enlarged discovery period. No such motion has been
filed with the court as of the date of this order.
(Rev. 8/82
chow Ty
: *
The parties’ requested enlargement of time is for 60
days from January 19, 1983. An enlargement of discovery
time is GRANTED to and including April 15, 1983.
In sum, petitioner's motion for reconsideration is
DEFERRED IN PART and DENIED IN PART, and respondent's motion
for enlargement of time for discovery is GRANTED, discovery
for the evidentiary hearing to be conducted up to and in-
cluding April 15, 1983. The Clerk is DIRECTED to resubmit
petitioner's motion for reconsideration after receipt of the
affidavit of petitioner's counsel and of the affidavit on
behalf of respondent, if any, under the schedule established
above. :
=7
-
IT IS SO ORDERED this So day of March, 1983.
a
aS id #,
J. OWEN FORRESTER
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
petitioner, CIVIL ACTION FILE NO. C81-2434A
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
PETITIONER'S SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO RECONSIDER PORTIONS OF OCTOBER 8, 1982 ORDER.
INTRODUCTION.
This action is pending before the Court on Petitioner's
Motion to Reconsider Portions of the Court's Order of October
8, 1982. In light of two intervening Eleventh Circuit decisions,
petitioner comes and files this supplemental memorandum of law.
I. EN BANC DECISION IN WASHINGTON V. STRICKLAND
SUPPORTS PETTTIONER'S REQUEST FOR EVIDENTIARY
HEARING. ; :
Petitioner has previously contended that certain material
facts were not developed at the state habeas hearing with respect
to the ineffective assistance of counsel claim, and that, therefore,
this Court should hold an evidentiary hearing. (Petitioner's
Memorandum in Support of Motion to Reconsider, filed October 21,
1982). In support of petitioner's contention, he cited to the Court
the panel decision in Washington v. Strickland, 673 F. 2d 879
{llth Cir. 1982).
The en banc decision of the llth Circuit in that case,
reported at 693 F. 2d 1243, provides continuing support for
petitioner's position.
In terms of petitioner's contentions in this case, the
en banc decision of the Eleventh Circuit leaves standing the long-
established principle that, when counsel fails to conduct an
independent investigation into a possible line of defense, and
that failure is not explained by reasonable strategic choices,
counsel has rendered ineffective assistance. Washington v. Strick-
land, 693 F., 24 1243, at 1257.
The record in this case is, in certain respects, in a
far different posture than was the record in Washington v. Strick-
land, supra. While in that case the record was silent regarding
trial counsel's strategy, that is not the case herein. It is
apparent that trial counsel's failure to pursue investigation was
not the result of strategic choice.
For example, as to putting up evidence of "character
witnesses" at the sentencing phase, trial counsel testified that
he would have done so if he had located available witnesses.
" Trial counsel's testimony was that ". . .I have always made it a
practice to bring some relative or if I can get my hands on some-
body to come in and say something good about the Defendant, I want
1/
to do that.” (Tr, a B82.)
The record also shows, of course, that there were
available witnesses who could have testified regarding the
petitioner's family life and background -- evidence which would
have brought mitigating facts to the attention of the jury at
the sentencing phase. (See Affidavits of Thomas Adger, Mrs.
Thomas Adger, Myrtle Bates, and Mrs. Emma Owens, contained in the
State Habeas Record).
What the en banc decision in Washington v. Strickland,
supra, holds relevant to this case is that petitioner must show
prejudice accruing from trial counsel's failure to independently
investigate. Washington, at 1262.
Petitioner believes that the testimony of Reverend Johnson
and Gwendolyn Sharp shows precisely that there were family members
and family friends known to trial counsel which were not contacted,
but who, if they had been contacted, would have led trial counsel
to sentencing phase witnesses. The failure to offer their testi-
mony at the sentencing phase of the trial led to the actual and
2/
substantial disadvantage to the course of the defense.
1/
“Transcript references throughout this memorandum are to the tran-
script of the State Habeas Hearing.
2/
“Petitioner submits that this evidence is appropriately heard by
this Court because "it is not so clearly distinct from the claims
presented to the state courts that it may fairly be said that the
state courts have had no opportunity to pass on the claim."
Humphrey v. Cady, 405 U.S5. 504, 516, n. 18; 31 L. E4. 24 394 (1972).
This analysis was applied most recently by the Eleventh Circuit in
Cosby v. Jones, 682 F. 241173 (11th Cir. 1982), at 1379, n. 11.
|
On the basis of this recent Eleventh Circuit authority,
the Court should grant the evidentiary hearing sought by
3/
petitioner.
ITI. PETITIONER HAS SHOWN THE PREREQUISITES TO A
HEARING UNDER AUTHORITY OF THOMAS V. ZANT.
A recent Eleventh Circuit decision considers the appro-
priateness of holding an evidentiary hearing in federal court
when material facts have not been developed in the state habeas
corpus hearing. Thomas v. Zant, 697 FF. 24 877 {llth Cir, 19313).
In that decision, the Eleventh Circuit recognized a two-part test
2/ Continued:
That Eleventh Circuit note indicates that Rose v. Lundy, 71 L.
Ed. 2d at 379 (1982) does not affect a line of cases based upon
Humphrey wv. Cady, supra, and Picard v. Connor, 404 U.S. 270, 30
L. Ed 2d 438 (1071) holding that new facts may be considered by
the federal habeas court, so long as they are not clearly distinct
from the claims presented to the state courts. Miller v. Estelle,
677 FPF. 24 1081 (5th Cir. 1982); Anderson Vv. Casscles, 531 7, 24
682 (2nd Cir. 1976): Butler v. Rose, 686 F, 24 1163 (6th Cir. 1982).
The evidence which petitioner seeks to have the Court grant
an evidentiary hearing on is evidence properly considered not so
clearly distinct from the claims presented to the state courts
such that it may fairly be said that the state courts have had no
opportunity to pass on the claim. The state courts have heard
evidence regarding trial counsel's failure to investigate; his
failure to independently pursue available leads; and his testimony
that this was not the result of trial strategy. It is to bolster
the evidence of "prejudice" required under Washington v. Strick-
land, supra, that petitioner believes this proffered evidence
‘should be heard. The evidence is essentially supplementary to the
bulk of the evidence already submitted to the state court -- but
yet significant in meeting present-day evidentiary burdens now
imposed by federal courts.
3/
“In the alternative, their affidavits should be made a part of
the record, pursuant to Rule 7(b).
as to when an evidentiary hearing should be held in circumstances
applicable to the facts of petitioner's case herein:
"Thus, a federal habeas petitioner must
make a showing of two elements in order
to obtain an evidentiary hearing based
on the fifth circumstance of Townsend:
first, that a Fact pertaining to his
federal constitutional claim was not ade-
quately developed at the state habeas
court hearing and that the fact was
'material' (in the language of Townsend) ;
Second, that the failure to develop that
material fact at the state proceeding was
not attributable to petitioner's inexcusable
neglect or deliberate bypass."
I4., at 986.
Petitioner herein has shown those prerequisites. As
discussed above, the testimony of Reverend Johnson and Gwendolyn
Sharp is material to the showing of a prejudice from trial counsel's
failure to make an independent investigation of persons known to
him as family members or friends of the family.
As to the second prong of the Thomas v, Zant test, the affi-
davit of petitioner's present counsel, attached to his motion to
reconsider filed October 21, 1982 (449-11) shows that the failure
to develop that material fact at the state proceeding was not
attributable to petitioner's inexcusable neglect or deliberate
bypass.
Counsel has shown that at the state habeas hearing, Betty
Myers, the petitioner's sister, testified that trial counsel had
never asked her for the names of persons who could testify at the
sentencing phase, and that if he had done so, she would have had
no difficulty supplying him with names -- indeed, she was the
source of the names of persons who had supplied affidavits at
the state habeas hearing. Thus, petitioner had anticipated
that, on the basis of this evidence, he would have shown at the
state habeas hearing that trial counsel had failed to pursue
an investigation into sources of sentencing phase witnesses
(i.e., petitioner's sister), and that he had done so, he would
have found a number of people with knowledge of mitigating
evidence willing to testify.
It was only when petitioner was taken by surprise by
trial counsel's testimony at the state habeas hearing that he
had asked Betty Myers for the names of such persons, that it
became critical to show the testimony of other persons known
to trial counsel -- such as Reverend Johnson and Gwendolyn Sharp.
As pointed out in present counsel's November 10, 1982 affidavit,
there was no inexcusable neglect -- counsel had interviewed
trial counsel prior to the state habeas hearing on this very
point and was taken by surprise by the testimony actually given
at the hearing.
Therefore, under the further authority of Thomas wv. Zant,
the Court should grant an evidentiary hearing as to the testimony
of Reverend Johnson and Gwendolyn Sharp.
III. UNDER THE AUTHORITY OF THOMAS V. ZANT,
THE INFORMATION PREVIOUSLY SUBMITTED
TO THE COURT WITH RESPECT TO OFFIE GENE
EVANS SHOULD BE MADE A PART OF THE RECORD.
In its Order of October 8, 1982, the Court also
granted petitioner's motion to have certain documents related
to Offie Gene Evans made a part of the record, conditioned upon
counsel showing why that evidence could not have been available
for the state habeas judge's review.
Under the standards of Thomas v. Zant, supra, that
evidence should be considered by the Court. The evidence is
material to the Court's review of petitioner's habeas corpus
claims. The evidence is material to the ineffective assistance
of counsel claim based upon trial counsel's failure to investi-
gate the State's witnesses whose names appeared on the September
20 witness list.
There can be no claim that the failure to investigate
was a result of counsel's trial strategy. Trial counsel acknow-
ledged at the state habeas hearing that, prior to trial, he
suspicioned that there might be testimony from a Fulton County
prisoner along the lines that eventually developed (Pr. 75).' He
testified further that he was especially interested in reasons
why persons in Offie Gene Evans' category (persons with substantial
records) appeared on the witnesses list (Tr. 86). Finally, his
failure to pursue an investigation was expressly explained by
trial counsel- he did not do so because he did not anticipate
the deputy sheriff would offer to him' exculpatory information"
(Tr. 79). Of course, as a matter of law, such is not an
adequate basis to fail to pursue an investigation. Davis
V. State of Alabama, 596 ¥F. 24 1214, at 1217 (5th Cir. 1979),
vacated as moot 446 U. 8S. 983, 64 L. Ed. 24 256 (1980);
("An attorney does not provide effective assistance if he fails
to investigate sources of evidence which may be helpful to the
defense.") (Emphasis added.) Gaines v. Hopper, 575 F. 2d 1147
{5¢h Cir. 1978).
The evidence before the Court is material to show
the prejudice accruing to petitioner from trial counsel's failure
to investigage. It shows substantial evidence casting Evans’
credibility into doubt - of a character different from that
actually presented at trial. It is therefore, rtsetol
The affidavit evidence from petitioner's present
counsel shows that there was no inexcusable neglect nor deliberate
bypass. (October 21, 1982 Affidavit, 443-8; November 10, 1982
Affidavit, %3.) Evans! whereabouts was unknown to present counsel
for a number of critical weeks prior to the January, 1981 state
habeas heating, directly as a result of misinformation given
by state authorities. When his whereabouts became known it was
too near the trial date, then to expect to develop further
4/
As cited above in footnote 2, it cannot be said that the evi-
dence is so distinct from the claim presented to the state court
that it may fairly be said the state courts have had no oppor-
tunity to pass on the claim. Evens himself testified at the
State habeas hearing to the understanding he had with the
Atlanta Police Detective handling the McCleskey case (Tr. 122).
evidence regarding his understandings and deals with State
officials.
CONCLUSION.
On the basis of the foregoing, the Court should
reconsider its Order of October 8, 1982, and grant the relief
sought by petitioner herein.
Respectfully submitted,
ROBERT H. STROUP!
1515 Healey Building
Atlanta, Georgia 30303
(404) 522-1934
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the
within and foregoing "Petitioner's Supplemental Memorandum of
Law In Support of Motion to Reconsider Portions of October 8,
1982 Order" upon Nicholas G. Dumich, Esqg., Assistant Attorney
General, 132 Judicial Building, 40 Capital Stuarts, S. W., Atlanta,
Georgia 30334, by depositing a copy of same in the United States
Mail, first-class postage prepaid.
This Aad day of March, 1983.
ROBERT H. STROUP
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- CIVIL ACTION
NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER'S RESPONSES TO RESPONDENT'S
REQUEST FOR PRODUCTION OF DOCUMENTS
AND TANGIBLE MATERIALS
Petitioner Warren McCleskey, by his undersigned
counsel, submits the following responses, pursuant to Rule
34 of the Federal Rules of Civil Procedure, to Respondent's
Request for Production of Documents and Tangible Materials,
dated January 3, 1983:
4
Request 1. The final written report relating to the results
of the Georgia Procedural Reform Study, 1973-1978 ("the Reform
Study") is not yet complete.
Request 2. At present there are no written findings or reports,
final or preliminary, for the Georgia Charging and Sentencing
Study ("the Sentencing Study") beyond Appendix D filed in this
proceeding in June, 1982.
Request 3. The computer cards and tapes containing the raw
data for both the Reform Study and the Sentencing Study were
sent to Respondent on January 25, 1983.
Request 4. The computation in Table 3 contained in "The
Differential Treatment of White and Black Victim Homicide
Cases in Georgia's Capital Charging and Sentencing Process:
Preliminary Findings" was compiled from the list at Appendix
A of these Responses. The cases in Groups 1 through 4 in Table
3 consist of: Group 1 (the first 169 cases on the list);
Group 2 (the next 143 cases on the list); Group 3 (the next
149 cases on the list) ;Group 4 (the next 154 cases on the
list),
Request 5. The list by cases is at Appendix A and is referred
to in the Response to Request 4.
Request 6. Petitioner objects to Request 6 as insufficiently
specific and unduly burdensome. Petitioner has constructed
literally dozens of scales in the Sentencing Study of the general
type used to construct Table 3. The creation of these scales
involves hundreds of computer runs, and large volumes of computer
print out, only a small portion of which may be used in the hear-
ing of this case. Petitioner requests respondent to formulate this
request with greater precision and clarity.
Request 7. Figures 1 through Figures 7 have been modified. The
modified figures are annexed at Appendix B of these Responses and
styled Figure 1 (Revised) through Figure 7 (Revised). Appendix
B includes three (3) lists of names:
a) List I refers to Figures 2 and 3 where the
defendant was not. the triggerman;
b) List II refers to Figures 4 and 5 where the defendant
killed one person;
c) List III refers to Figures 6 and 7 where the defendant
killed two or more people.
The numbers across the bottom of each Figure (1 for each cell)
relate to the "Box" numbers on the computer printout. For
example, "Box 1" on the List I printout corresponds to cell 1
on Figure 2. The original versions of Figures 1 through 7 were
also constructed from the printouts at Appendix B.
Request 8. No corresponding computer analyses have been done
for the Charging and Sentencing Study.
Dated: February 4, 1983
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
i, 10 Columbus Circle
QQ New York, New York 10019 NS / ) aN bJ b
r jh — ~~ ANTHONY G. AMSTERDAM
New York University Law School
v 40 Washington Square South
New, Ygqrk, New Clas b, 10012
ae
CERTIFICATE OF SERVICE
I hereby certify that I am one of the attorneys
for petitioner in this action and that I served Petitioner's
Responses to Respondent's Request for Production of Documents
and Tangible Materials on respondent by placing copies in the
United States mail, first class mail, postage prepaid, addressed
as follows:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
All parties required to be served have been served.
Done this 4th day of February, 1983.
ABS A
\_/JOHN CHARLES BOGER
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- : CIVIL ACTION
NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
PETITIONER'S RESPONSE TO RESPONDENT'S
MOTION FOR ENLARGEMENT OF TIME FOR DISCOVERY
Petitioner Warren McCleskey, by his undersigned
counsel, submits the following response to the motion of
respondent Zant, dated January 18, 1983, for a sixty-day
enlargement of time for discovery in this case.
Petitioner does not oppose the enlargement of time
sought by respondent. Indeed, petitioner has previously stated
that, in view both of the massive complexity of the evidence to
be presented by his experts and the significance of that evidence
for his own case and that of other death-sentenced inmates in
Georgia, it will be beneficial for the Court and the parties,
and should make for a more coherent and efficient hearing, if
§ : Ls
respondent has been afforded an adequate opportunity to review
and examine petitioner's data prior to the hearing.
Toward that end, petitioner has cooperated fully and
promptly with respondent's discovery efforts. All interroga-
tories served on petitioner have now been timely answered, with
a single objection posed for one question deemed too vague and
overbroad for response. After receiving respondent's request
for production of documents on January 7, 1983, moreover,
petitioner's ccunsel promptly telephoned counsel for respondent,
discussed the form (magnetic tape or computer punch cards) in
which respondent would prefer to receive the underlying data
from the Georgia Procedural Reform Study and the dsoriis
Charging and Sentencing Study, and thereafter, as soon as copies
were reproduced, forwarded all underlying data from both studies,
together with codebooks, task files, and related materials to
respondent. Additional items sought by respondent will be
forwarded as soon as available.
In short, petitioner is seeking without delay to make
available all relevant information sought by respondent. We
are informed that after respondent's experts have sufficiently
analyzed the data, respondent will depose Professor David Baldus
and perhaps several additional experts. The requested enlarge-
ment of time seems an appropriate period within which to accomplish
this discovery.
Petitioner would add that, after respondent's experts
have had the opportunity to review petitioner's data and develop
questions or criticisms of it, petitioner proposes to conduct a
deposition of respondent's experts, so that all principal
criticisms of the Baldus studies can be ascertained and, if
possible, addressed during the evidentiary hearing before the
Court. Petitioner will be filing his motion to permit such
discovery within the next two weeks and anticipates no difficulty
in scheduling and completing this discovery before the end of
the enlarged discovery period.
For all the reasons set forth above, petitioner does
not oppose respondent's motion enlarging the time for pre-hearing
discovery in this case.
Dated: January 28, 1983
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Bldg.
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS OR PETITIONER
BY 4 k
* »
CERTIFICATE OF SERVICE
I hereby certify that I am one of the attorneys
for petitioner in this action and that I served Petitioner's
Response to Respondent's Motion for Enlargement of Time for
Discovery by placing copies in the United States mail, first
class mail, postage prepaid, addressed as follows:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Bldg.
Atlanta, Georgia 30334
All parties required to be served have been served.
Done this 28th day of January, 1983.
JOHN CHARLES BOGER
; % #
JOCHN R. MYER 1515 HEALEY BUILDING
57 FORSYTH ST., N. W. ROBERT H. STROUP
ATLANTA, GEORGIA 30303
GARY FLACK i 404/522-1934
ATTORNEYS AT LAW
February 14, 1983
Honorable Ben H. Carter
Clerk, United States
District Court
2211 United States Courthouse
75 Spring Street, S. W.
Atlanta, Georgia 30335
Re: Warren McCleskey wv. Walter D. Zant
Civil Action File No. C81-2434A
Dear Mr. Carter:
Enclosed for filing please find an original and one copy
of "Petition for Leave of Absence" in the above civil
action.
Thank you for your courtesy.
Very truly yours,
Robt).
Robert H. Stroup
RHS/1
Encl.
cc: Nicholas G. Dumich, Esq.
John Charles Boger, Esq.
* #
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Patitioner, CIVIL ACTION FILE
VS. NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
PETITION FOR LEAVE OF ABSENCE
Comes now petitioner's counsel, ROBERT H. STROUP, and peti-
tions the Court, pursuant to Local Rule 71.8, for a leave of
absence in this action from April 22, 1983 through May 20, 1983.
Petitioner's counsel antitipates being out of the country during
that time period.
Respectfully submitted,
{tert NH. Rass
ROBERT H. STROUP !
1515 Healey Building
Atlanta, Georgia 30303
(404) 522-1934
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day prior to filing,
served a copy of the within and foregoing pleading upon:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
counsel of record for respondent, by depositing a copy of same
in the United States mail, adequate postage affixed thereto.
This | Yt day of February, 1983.
ROBERT H. STROUP [
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ATLANTA DIVISION ALL KA
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WARREN McCLESKEY,
Patitioner, CIVIL ACTION FILE
vs: NO. C81-2434R
WALTER D. ZANT, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITION FOR LEAVE OF ABSENCE
Comes how petitioner's counsel, ROBERT H. STROUP, and peti-
tions the Court, pursuant to local Rule 71.8, for a leave of
absence in this action from April 22,:1283 through May 20, 1983.
Petitioner's counsel antitipates being out of the country during
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