Petitioner's Reply Brief

    No. 84-6811 
  

  

| | IN THE 
Supreme Court of the Enited States 

OcTtoBER TERM, 1986 

WARREN McCLESKEY, 
: 2 Petitioner, 

V. r= 

-Ravrpa M. KEmp, Superintendent, 
Georgia Diagnostic & Classification Center. 

On Writ of Certiorari To The United States 
Court Of Appeals For The Eleventh Circuit 

PETITIONER'S REPLY BRIEF 

Junius L. CRAMRAS 
JAMES M. NABRIT, in 
*JOHN CHARLES BOER : 

DeEvaL L. PATRICK 

~VYViviaN BERGER 
99 Hudson Street | 

New York, New York 10013 
(212) 219-1900 2 

RoBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

TimorHY K. FORD 
600 Pioneer Building 

Seattle, Washington 98104 

ANTHONY G. AMSTERDAM 
New York University School of Law 
40 Washington Square South 
New York, New York 10012 

*Attorney of Record Attorneys for Petitioner 
  

  

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662  



 



TABLE OF CONTENTS 
  

ARGUMENT   

I. There Is No "Death Penalty 
Exception" To The Equal 
Protection Clause, And 
The Court Should Firmly 
Decline Respondent's 
Invitation To Insulate 
Capital Sentencing 
Systems From Claims Of 
Racial Discrimination 

None Of The Purported 
Deficiencies Identified 
By Respondent Or Found 
Py The District Court 
Impeach The Basic Show- 
ing Of Racial Discrim- 
ination Made By 
Petitioner 

A. The Reliability of the 
Data Base 

{i) Data Sources 

(ii) Questionnaire 

(iii) Purported Coding 
Errors 

(iv) Purported Mis~- 

treatment of 

"Unknowns"  



  

CONCLUSION 

The Effect of Multi- 
Collinearity ....ivcvvnes 

The "Direct Rebuttal 

BVIGBNCO! vs vt tt tees vr ve 

The Suggestion of 
Contrary FPindingS.... vo 

| dan EN SE NR BER NE PRR LR RST IEC AN VER RE RE GSS ERY AU SH Re SE Re Se ERE 

30 

32 

35 

42 

   



TABLE OF AUTHORITIES 
  

Cases Page 

Batson v. Kentucky, U.S._ , 
90 L.EQA.24 B89 {1986) cen evr vas 3,4,8 

Bazemore v. Friday, U.S. 
92 1,..Fd.2d4 315 (1986) .,+4 4s. 10,16,33 

Detroit Police Officers Ass'n 

¥. Young, 608 F.24 811 
{6th Cir l0T0 Yd nied vv vs 11 

Gregg v. Georgia, 428 U.S. 153 

(1978) LBC imei vied elo in eink dele 85,6,13 

Keyes v. School District No. 1, 
413 U.S.089: 1973) waives va ais 8 

McGautha v. California, 402 U.S. 

183 (IQ Rie iin i vinini iat bils 5 

Segar v. Smith, 738 F.2d 1249 
(D.C... Cir. 1984) ..o.o.v. coo. rinvar sl BEE 11 

State v. Andrews, 574 P.2d 709 

(DEEN 1070 ik ee iia Eee oe 23 

Trout v. Lehman, 702 F.24 1094 

{D.C.o Cir, 11983 Farin ail Jew ih 13,33 

Village of Arlington Heights v. 
Metropolitan Housing Development 
Corp., 429 U.S. 252 (1977)... .. 4,7 

Vuyanich v. Republic Nat'l Bank, 
505 FF. Supp. 224 (N.D. Texas 

1080). avs sss ch saa rae 9,13 

ii}  



    

Washington v. Davis, 426 U.S.229 

  

{I8T6) vv susirsor iodo viton munis Cte 4 

Statutes 

Ga. Code Ann, §27-25317 (Supp. 1975) 6 

Ga. Code Ann. §27-2537(e) 

(SUPP. 1875) ho seine Se, wily 6 

Other Authorities: 
  

Fisher, Multiple Regression in Legal 

Proceedings, 80 Colum. L. Rev. 

702 (1980) vivir desde Boe vididioininls « 9,31 

  

  

Gross, Race and Death: The Judicial 

Evaluation of Evidence of 

Discrimination in Capital 

Sentencing, 18 U.C. Davis L. 

Rev. 1275 1988... iid viiie «84 31 

  

  

  

  

Kleck, Life Support for Ailing 

Hypotheses: Modes of Summariz- 

ing the Evidence for Racial 

Discrimination in Sentencing, 

9 Law and Human Behavior 271 

{10858 ) i iurviiiiron Fodicde o shined oobi 4 41 

  

  

  

  

Note, 33 Stan. L.Rev, 175 : 

{IQBO) ciniirarireicie winrar hebad ke io 38,39,40 

United States Dep't of Justice, 
National Prisoner Statistics, 
Capital Punishment 1930-1970 
(Aug. I970 rv ra id. CRP 42 

iv 

 



No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

  

WARREN McCLESKEY, 

Petitioner, 

i i i 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & 
Classification Center. 

  

On. Writ. of Certiorari to the 

United States Court of Appeals for 
the Eleventh Circuit 

  

PETITIONER'S REPLY BRIEF 

  

The State of Georgia stakes its case 

largely on two propositions: first that 

capital cases are so unique that any 

statistical analysis of capital 

sentencing patterns is impossible as a  



Ratter of law (Resp. Br. 7-16)1., ana 

second, that certain methodological 

flaws in Professor Baldus's analysis of 

the Georgia data undermine his findings. 

(Resp. Br. 16-23; 31-36). We deal with 

these points in Parts I and II 

respectively. Neither impugns 

petitioner's strong evidences of racial 

discrimination, which continues to stand 

unmet and unrebutted by respondent, as 

it did during the 1983 federal hearing. ?2 

  

lEach reference to the brief for 
Respondent filed in the Court will be 
indicated by the abbreviation "Resp. 
Br.," followed by the number of the page 
on which the reference may be found. 
References to the Brief of Amici Curiae 
State of "California, etc.,et al, “will 
be indicated by the abbreviation "Cal. 
Br." and (o the Brief Amicus Curias of 
the Washington Legal Foundation et al. 
by the abbreviation "WLF Br." 

  

2we emphasize that petitioner has 
presented his case on alternative Eighth 
and Fourteenth Amendment grounds. We do 
not discuss our Eighth Amendment claim 
in this brief, since respondent's Eighth 
Amendment arguments were anticipated and 
dealt with in our opening brief . (See 
Pet. Br. 41-44: 907-104.) 

 



I 

THERE IS NO "DEATH PENALTY EXCEPTION" 
TO THE EQUAL PROTECTION CLAUSE, AND 
THE COURT SHOULD FIRMLY DECLINE 
RESPONDENT'S INVITATION TO INSULATE 
CAPITAL SENTENCING SYSTEMS FROM CLAIMS 
QF RACIAL DISCRIMINATION 
  

Respondent first contends that, in a 

capital case, "[{s]tatistical analyses 

are inadequate as a matter of 

law." (Resp. Brae. While this 

argument is couched in terms —oOf 

statistics," its" actual purport is to 

exclude capital sentencing decisions 

entirely from the normal procedures and 

standards for proof of discrimination 

  

outlined in Batson VV. Kentucky, 

_U,s. , 90 1.24.24°89 (19386) and its 

precursors. Those standards permit a 

defendant to "make out a prima facie 

case of purposeful discrimination by 

showing that the totality of the 

relevant facts gives rise to an 

inference of discriminatory purpose,” 

3 

 



Batson vv. Kentucky, 90 L.Fd.2d4 at 886. 
  

Under those standards, statistical 

evidence may sometimes #1 for all 

practical purposes demonstrate 

unconstitutionality because in various 

circumstances the discrimination is very 

difficult fo explain on nonracial 

grounds. '" Batson vy, Kentucky, 90 
  

L.BEd.2d at 85, aguoting Washington v. 
  

Davis, 428 U.S. 229, 242 (1978). See 

8lsg Village of Arlington Heights v, 
  

Metropolitan Housing Development Corp., 
  

4298 U.S. 282, 265-86 {1977). 

Respondent offers three interrelated 

reasons why normal principles of Equal 

Protection © jurisprudence should not 

apply in capital cases: {i1) *{elach 

death penalty case is unique," (Resp. 

Br. 8), involving “too many unique 

factors relevant to each individual 

case," of a permit any meaningful 

comparisons (id. at 6); (ii) the "myriad 

 



of Factors” that influence capital 

sentencing decisions makes statistical 

analysis impossible (id. at 14); and 

(iid) many of the influential factors in 

capital cases are so subjective that 

they can neither be identified nor 

quantified (id.). 

Respondent's first argument echoes 

the skepticism expressed in McGautha v. 
  

California, 402 .U0.8.-183, 204~07.(1971), 
  

that any objective standards can be 

found or formulated to regulate the 

choice of sentence in capital cases. 

Since every case is unique, respondent 

reasons, there can be no way to compare 

the dispositions in different cases, and 

thus there can be no proof that race has 

played an impermissible role. Yet 

McGautha's viewpoint has not stood the 
  

test of - time: as ..this Court recognized 

in Gregg. v. Georgia, 428 U.85,:153, 193- 
  

94..(1928) the fact. dis that [capital 

 



sentencing] standards have been 

developed . . . [and that they] provide 

guidance to the sentencing authority."3 

Respondent elsewhere argues that 

Georgia's capital system is 

constitutional precisely because its 

statutory sentencing standards guide 

jury discretion among more and less 

death-worthy cases (see Resp. Br. 23-31; 

See also, Cal, Br. 18-23; WLF Br. 8-7); 
  

he cannot simultaneously maintain that 

capital cases are so unique that it is 

impossible to. identify meaningful 

  

SGeorgia's statute requires 
appellate review of death sentences to 
determine whether each is 
"disproportionate to the penalty imposed 
in similar cases, considering both the 
crime and the defendant." Ga. Code Ann. 
§27-258317. "If the [Georgia Supreme 
Court] .. . . affirms a death sentence, 

it lis required to include jin its 
decision reference to similar cases that 
it has taken into consideration. §$27- 

  

2537 (e) (Supp. 1925)y." Gregg V. 
Georgia, 428 U.S. at 187. All of this 
is, of course, fundamentally 
inconsistent with respondent's position 
that every capital case is so unique as 
to be incomparable with others. 

6 

 



sentencing standards when cases are 

actually compared. 

Respondent's second argument 

transforms a quantitative distinction 

into a qualitative one. He suggests that 

since a capital sentencing decision 

involves many more considerations than 

an employment decision, evidentiary 

tools long held to be appropriate in 

employment discrimination cases simply 

have no place in capital cases. (Resp. 

Br. 8~10: see also Cal. Br. 23-28). 
  

This argument is wrong in law and 

fact. Governmental decisions in which a 

large variety of legitimate variables 

must be considered are subject to proof 

of discrimination by the usual 

"sensitive inquiry into such 

circumstantial and direct evidence of 

intent as may be available." Village of 
  

Arlington Heights Va Metropolitan 
  

Housing Development Corp., 429 U.S. 252, 
   



  

  

266 (1977) (rezoning); Keves v. School 

District No. 1. 413 U.s. 189 
  

{1973) (school location and zoning). For 

example, in no area of the law-- 

including capital sentencing -- has a 

wider or more subtle array of factors 

traditionally been deemed legitimate 

than in the exercise of peremptory 

challenges to prospective jurors. Yet 

in Batson the Court specifically held 

that traditional Equal Protection 

principles should guide lower courts in 

determining whether race has affected 

the prosecutor's decision to strike 

jurors peremptorily. Batson v. Kentucky, 
  

90 L.Bd.24 at 87-88. 

Furthermore, perhaps the greatest 

virtue of multiple regression analysis 

is precisely its ability to sort out and 

determine the influence of one factor, 

despite the presence of a large number 

of other factors which may also exert 

 



independent influence. See, e.qg., 
  

Fisher, Multiple Regression in Legal 
  

Proceedings, 80 Colum. L. Rev. 702, 704- 
  

08-.{1980); ~-Vuvanich-.v, Republic Nat'l 
  

Bank, 505 F. Supp. 224, 267-69 (N.D. 

Tex. 1980). Multiple regression 

techniques have regularly been relied 

upon determining medical, scientific, 

and agricultural issues many of which, 

like capital cases, involve scores of 

relevant considerations. As Professors 

Baldus and Woodworth testified below, 

for example, the statistical methods 

employed in petitioner's case were also 

central to the National Halothane Study, 

through which the national medical 

community made its life-or-death 

decision on the best anaesthetic for 

general medical use. (Fed. Tr. 155-58; 

1200-02). 

As his third justification . for 

jettisoning normal Equal Protection 

 



  

principles, respondent invokes an 

unnamed and apparently unknowable host 

of subjective factors that, he surmises, 

might affect capital decisionmaking. 

Respondent concludes that petitioner's 

failure —— indeed, the probable 

inability of any researcher -—ZTE0 

include all such factors in an empirical 

study necessarily renders proof "of 

racial discrimination "impossible" in 

capital cases. {Resp., Br. 14). 

Again, the argument is both legally 

and scientifically unsound. Bazemore v. 
  

Friday specifically held that "[w]hile 

the omission of variables from a 

regression analysis may render the 

analysis less probative than it might 

otherwise be, it can hardly be said, 

absent some other infirmity, that an 

analysis which accounts for the major 

factors 'must be considered unacceptable 

as evidence of discrimination. '" 92 

10 

 



L.E4d.24:315, 331. (1986). Accord: Segar 
  

Vi Smith, 738 .P.2d 1249, 1287 (D.C... Cir. 
  

1984); Trout v. Lehman, 702 F.2d 1094, 
  

1101-02: (D.C. Cir. 1983); Detroit. Police 
  

Officers Ass'n Vv. Yound, 5608 P.24.671, 
  

887 (8th Cir. 1979); Vavanich. . v, 
  

Republic Nat'l Bank, 3505 Supp. at 255- 
  

58. 

This legal holding accurately 

reflects the scientific reality. 

Information on a missing variable does 

not make a significant difference unless 

the omitted variable {i) | has an 

influence on death-sentencing which is 

not "captured by" other variables 

included in the analysis, and (ii) is 

itself systematically associated with 

race. (Fed. Tr.1690-94;1265-73). Thus, 

omission. of a .variable such as the 

"cyedibility of the witnesses" (Resp. 

Br. 12) would be important only if such 

neradibility” was not corrslated with 

11 

 



  

the detailed "strength-of-evidence" 

variables which Professor Baldus did 

include in his questionnaire (see S.E. 

23-26, questions 61-62D; id. at 29-33),4 
  

and if it were plausible to believe that 

jurors regularly {for non-racial 

reasons) find witnesses more credible in 

white-victim rather than black-victim 

cases. The crucial point is" that 

unidentified factors which are not 

associated with race will occur randomly 

in white-victim cases and black-victim 

cases. They will not produce, and cannot 

explain away, a systematic pattern of 

differential capital sentencing between 

racial groups. PFrofessor Baldus, who 

controlled for over 230 relevant 

variables, undoubtedly accounted for the 

"major sentencing determinants" in the 

Georgia system. Respondent's expert 

  

4Each reference to the Supplemental 
Exhibits will be indicated by the 
abbreviation YS .E.” 

2 

 



admitted that he had no idea whether any 

additional variables might make a 

difference (Fed. Tr. 1569; 1591-92); and 

the eminent social scientists who have 

submitted a brief amici curiae in 
  

support of petitioner find it "extremely 

unlikely” that any such factor remains 

lurking in the shadows. (Brief Amici 

Curiae for ' Dr. Pranklin M. Fisher, et 

al., at 22). 

* * * 

Respondent has, in sum, suggested no 

valid reason why OTs itr ionR Ty Yared 

standards of proof that are applicable 

in all other areas of the law should be 

abandoned when a death-sentenced inmate 

seeks ‘to prove that “in fact « the death 

penalty [is] ; . « being administered 

for any given class of crime in a dis- 

criminatory, standardless, or rare 

fashion," Gregg v. Georgia, 428 U.S. at 
  

13  



293i a (Whire,: J.,: concurring in the 

judgment). 

oh 

NONE OF THE PURPORTED DEFICIENCIES 
IDENTIFIED BY RESPONDENT OR FOUND BY 
THE DISTRICT COURT IMPEACH THE BASIC 
SHOWING OF RACIAL DISCRIMINATION 
MADE BY PETITIONER 
  

Respondent alternatively invokes 

Findings of the Distnict Court. . to 

contend factually: {i} that the "data 

base” upon which Professor Baldus and 

his colleagues drew for their 

information was so deficient == and 

their questionnaire and data-collection 

methods so flawed -- that no valid 

statistical analyses can be based on 

their work (Resp. By. 2:.:337-19); (i) 

that "multicollinearity" distorts 

Professor Baldus's research findings 

(Resp. Br. 2-3; 20-21); (iii) that the 

State's hypothesis that "white victim 

14 

   



cases are simply more aggravated and 

less mitigated than black victim cases” 

(Resp.Br. 6) provides "direct rebuttal 

evidence to Baldus'theory" (Resp. Br. 

4); and liv) that contrary findings on 

the race-of-victim issue were reported 

by Professor Baldus himself (Resp. Br. 

4), and, amici contend, by other sources 

as well. (See Cal. "Br. 12 n.5; WLF Br. 

18-19 & n.4.) 

None of these arguments is correct; 

the record plainly refutes each one. It 

is hardly accidental that not a single 

judge of the Court of Appeals rested his 

or her opinion, even in the alternative, 

on the. factual findings .of the District 

Court. To the limited extent that those 

  

findings were not marred by legal 

error, d they were clearly erroneous. 

SThe District Court's use of 

jncorrect legal standards precludes 

reliance upon its findings of 

fact. For example, the District Court 

held that. "{aln important .limitatlion 

15 

 



  

We will examine below a number of the 

more prominent findings relied upon by 

respondent .® 

A. The Reliability of the Data Base 
  

{1) Data Sources -— Respondent 
  

contends that the sources of data 

avallable to Profassor PBaldus -‘and'his 

colleagues were "'very summary in many 

  

placed on the data base was the fact 
that the questionnaire could not capture 
every nuance of every case," (J.A. 136), 
and that "[m]ultiple regression requires 
complete correct data to be utilized.” 
{J.A. 144). The District Court also 

concluded, after an extensive, somewhat 
confused discussion, entitled "What a 
Multivariate Regression Can Prove,” 
({3.A. 182), that "multivariate analysis 

is 111 suited to provide the court with 
circumstantial evidence of the presence 
of discrimination, and it is incapable 
of providing the court with measures of 
qualitative difference in treatment 
which are necessary to a finding that a 
prima facie case has been established 
with statistical evidence." (J.A. 168- 

69) (italics omitted). All of these 

holdings are contrary to this Court's 
subsequent opinion in Bazemore v. 
Priday, 92 L.Ed.24 at 331. 

  

6A more thorough examination of the 
District Court's findings appears in 
Appendix E to the Petition for 
Certiorari. McCleskey v. Kemp, No. 84-6811. 
  

16



respects.'” (Resp. Br. 18). The Parole 

Board records, respondent claims, "were 

brief and the police reports from which 

the Parole Board summaries were prepared 

were usually only two or three pages 

long... 1d... The Parole. .:Board flles, the 

District Court found, .. provided "no 

information about what a prosecutor felt 

about the credibility of any witnesses. 

R...1117.'" (Resp. Br. .18). 

This characterization of the data 

sources is incorrect almost from start 

to. finish. Professor Baldus drew his 

information from an extraordinary range 

of official Georgia sources on each 

case, including the full trial 

transcripts, all appellate briefs, the 

files of the Georgia Department of 

Offender Rehabilitation, .the files of 

the Georgia Bureau of Vital Statistics, 

and the files of the Parole Board. (See 

S.By 43,...08: .39}., L.G. Ware testified 

17  



  

that the parole officials like himself 

who compile each of its files (all 

college graduates) prepare a special 

report: "We check local criminal 

records, we go to the clerk of [1331] 

court, get sentence information, 

indictments, jail time affidavits, we 

get police reports from the agency that 

handled the case.’ (J.8. 52). In 

homicide cases "if we didn't think the 

report had all the information we 

thought we needed, we may interview the 

officers that were involved in the case 

[or] the district attormey." {(J.A. 

54). A Parole Board Manual guides 

officials at every step: 

(The report] should be obtained 

in narrative form. It should be 
taken from the indictment, the 
district attorney's office, the 
arresting officers, witnesses 
and the victim. BA word picture 
telling what happened, when, 
why, where, how and to whom 
should be prepared. . . . Parole 
officers should be as thorough 
as possible when conducting 
post-sentences on persons who 

18



have received life sentences or 
sentences in excess of fifteen 

years. 

{J.A.: B6~-5T)., Although the District 

Court faulted the Parole Board files for 

lacking photostatic copies of the actual 

police reports in 75% of the cases (J.A. 

137), Officer Ware testified without 

contradiction that nothing "contained in 

the ..police reports ... wee wonrla... [be] 

routinely s omit{ted]” .from the Parole 

Board. files. {J.A. B53). .. These files, in 

fact, were often superior to the written 
  

police reports since they contained the 

results of direct interviews with police 

officers and prosecutors about each 

case. (J.A. 54). 

(ii) Questionnaire Desian —- 
  

Respondent also faults Professor 

Baldus's questionnaire design, alleging 

that there are "problems with the format 

of critical items on the guestionnaires, 

such that there was an insufficient way 

19  



to account for all factors in “asgiven 

case." (Resp. Br. 17). Respondent 

quotes the District "Court ‘that “"‘{aln 

important limitation placed on the data 

base was the fact that the questionnaire 

could not capture every nuance of every 

case.'" (See J.A. “136). Once again, 

these findings and contentions are 

themselves riddled with error. Professor 

Baldus developed three questionnaires, 

two for his first study, the Procedural 

Reform Study ("PRS") and one for the 

Charging and Sentencing Study. ("CSS"), 

Any restrictions on data entry under 

the "foll entry" mnethod ‘criticized by 

respondent were jargely” limited, as 

respondent's expert conceded (Fed. Tr. 

1392), to the two PRS questionnaires. 

{Fed., Tr. 274). Professor Baldus 

testified that the "foll entry" format 

was virtually abandoned in the ' CSS 

questionnaire. {Fed. Tr. 1098-1101). 

20



Since CSS data were used to conduct 

virtually all* of the majo analyses 

relied upon during the federal hearing, 

(Fed. Tr. 1437), respondent's criticism 

is essentially irrelevant.’ 

The District Court's complaint that 

the Baldus studies "could not capture 

every nuance of every case" not only 

reflects a legally erroneous standard of 

proof but a straightforward 

misunderstanding of the record. 

Professor Baldus testified that because 

no questionnaire could be devised to 

  

INevertheless, as a check on the 

impact of the use of the foil method, 
Baldus identified some 50 PRS cases in 

which there had been "overflow 

information that wouldn't - fit into the 

original foils." He created new folls to 

handle the overflow information and 

reran each of the analyses. The race 

effects became "somewhat intensified 

when this additional information was 

included." (Fed. Tr. 1099-1100). Baldus 

also recoded and reran analyses 

involving the only two CSS items 

retaining the foil method of entry that 

contained overflow information. His CSS 

findings remained identical. (Fed. Tr. 1101). 

23  



i i i i hl 

anticipate every possible factor, he 

constructed a special "narrative 

summary" section precisely so that 

coders could '"capture every nuance of 

each case.” {Fed.. Tr. 23%; 8. S.F. 

36) .8 
  

8The brief of amici Washington 
Legal Foundation et al. .displays..a 
similar misunderstanding of Professor 
Baldus's powerful data collection 
instrument. Amici assert that one 
gruesome Utah murder they describe 
"would have been listed by the coders as 
a shooting.” « (WLP Br. at 24, citing the 
District Court, gee J.A. 136-37). Amici 
are mistaken. Both the PRS and the CSS 
questionnaires contain numerous entries 
through which the special features of 
this case could have been coded. For 
example, the CSS questionnaire provides: 
{1) three entry foils, pius an “other” 
blank space, to code the method of 
killing (see S.E. 14); {i3i) an entry to 

reflect a contemporaneous rape (S.E. 
2:Q....29); (iii) 34 separate options 
(including torture, mental torture, 
unnecessary pain, victinm bound.: or 
gagged) in a section on special 
aggravating features of the offense 
{S.E. 15, QQ. 47.A & B); as well as (iv) 
extensive entries for the respective 
roles of co-perpetrators. {S.E..i16~-18, 
Q. 47-48). Finally, the "Narrative 

Summary" section instructs the coder to 
include "all facts" and. "any special 
circumstances that are not covered in 
the preceding questions.” (S.E. 38). 

22



(iii) Purported Coéding Errors --   

Respondent faults the Baldus data 

because of ostensible "'errors in coding 

the questionnaire'" (Resp. Br. 2), which 

it says are reflected in "numerous 

inconsistencies between the coding for 

the Procedural Reform Study and the 

Charging and Sentencing Study." (Resp. 

Br. ’i8). The District Court, noting 

these "mismatches" between the PRS and 

the CSS questionnaires, concluded that 

coding errors pervaded the study. (J.A. 

137-39). 

Respondent's challenge to the 

accuracy of the data entries, however, 

  

In sum, the charge : that: “the 
collective horrors of [the Utah case] 

‘ cannot be reduced to neatly coded 
variables," (WLF Br. 24), is wide of the 

mark. Professor Baldus's questionnaires 
would have captured all relevant factors 
in the Utah case, including one factor 
amici have misstated -- the substan- 
tially different involvement of the two 
Utah defendants. See State v. Andrews, 
574 F.2d 709: (Utah 1977). 
  

23  



a i i Re i BM SB 

did not entail any actual comparison of 

Baldus's questionnaires with the 

underlying files from which the data 

were drawn. Instead, respondent's 

expert simply ran a computer check on 

items from cases that were included in 

both ‘the PRS and CSS studies, The 

expert admitted that he made no attempt 

to compare’ the coding "protocols! from 

the PRS and CSS studies, to see whether 

the ostensibly "mismatched" items had 

been coded according to different 

instructions. (Fed. Tr. 1447) .° 

  

9 All (SS coders were law students 
who were carefully selected (Fed. Tr. 

301-03) and extensively trained. (Fed. 

Tr. 309-11), Coding decisions were 
guided by 5 comprehensive written 
"protocol" developed by Professor Baldus 
(see DB 43) which contained hundreds of 
instructions on general coding issues 
and on rules for coding specific items. 
{Fed., Tr.’ 330-11). During the data 
collection period, a coding supervisor 
reviewed a large proportion of all 
completed questionnaires on a daily 
basis. (Fed. Tr. 401-03). Entries were 

ultimately checked by computer for 
internal inconsistencies. (Fed. Tr. 

595-99). 

24



In fact, Professor Baldus testified 

that the instructions often varied 

significantly. For example, the PRS 

coders were required to draw inferences, 

if reasonable, from the file data; in 

the CSS study, coders were instructed 

no to draw inferences if information 

was not present in the file. (Fed. Tr. 

367). Respondent was eventually forced 

to concede, I don't believe [our 

expert] is indicating .elther one .lis 

necessarily right or wrong in. his 

judgment. He's just indicatingahets 

done a computer count and found these 

inconsistencies." (Fed. Tr. 1444). 

Professor Baldus, however, did 

conduct a : broad reanalysis of the 

alleged mismatches, and reported that 

approximately one percent were 

attributable to data entry, coding, or 

key punch error: 

[T]lhat translates into an error 

rate of approximately one-half 

25 

 



ahi A a iS 

of ‘one percent in each '0f the 
two studies. However, we found 

on further examination that 

the error rate in the 

Procedural Reform Study was 
higher than jt was in the 
Charging and Sentencing Study. 

(Fed. Tr. 1719-20). ‘Since the findings 

presented to the District Court came 

largely from the CSS study, the relevant 

error rate was very low. 

  

  

(iv) Purported Mistreatment of 

"Unknowns" -- Respondent poses one 

final data collection issue ~- the 

number of ‘items that were coded 

"unknown" in the studies, and Professor 

Baldus's treatment of those unknowns in 

his analyses. {Resp. Br.19). Throughout 

the CSS scudy, Professor Baldus's coders 

were instrucred to enter a "1v. if a fact 

were "expressly stated in the file", a 

"2" if the fact was "suggested by the 

file but not specifically indicated," a 

blank if the fact were not present in 

the case, and a "U" if the coder could 

26 

 



not classify the item based on the file. 

{Fed. Tr. 444-45). Once statistical 

analysis began, the "U" was recoded as 

"not present." 

In his testimony, Professor Baldus 

examined one aggravating variable -- 

that the: victim pled. for his life"--- 

to clarify the logic. behind this 

standard coding procedure. If there had 

been witnesses present during the crime, 

he explained, a coder would code the 

variable either present or absent, 

depending on the witnesses' accounts. 

But in the absence of witnesses or other 

evidence, Baldus reasoned that one could 

draw no inference either way, and the 

item would be coded "U." {Fed. Tr. 

1685-86; see also id. 1155-58). 
  

This explanation casts in a 

radically different light. %the District 

Court's ominous-looking list of 

variables coded "U" in more than ten 

27 

 



percent of the cases. (J.A. 139-41). 

Many involve either state-of-mind or 

relational variables that are often 

unknown to any outside investigator. 

For example, "Defendant's Motive was 

Sex” would be important if known to a 
  

prosecutor or jury. If the facticould be 

neither eliminated nor confirmed from 

the evidence, however, Baldus's rule 

would: be to code it "anknown" “and 

Ritimately discount’ its impact either 

way by treating it as non-existent. 

The District Court challenged the 

basic logic of this coding treatment: 

"the decision to treat the 'U' factors 

as not being present in a given case 

seems highly questionable . . . it would 

seem that the more rational decision 

would be to treat the 'U' factors as 

being present." (J.A. 139). Yet neither 

petitioner's experts (Fed. Tr. 1684-90) 

{Baldus); Fed. Tr. 1781-83 {Berk)), nor 

28



respondent's experts (Fed. Tr. 1502-04; 

{RKatz); Fed. Tr. 1658-58.  (Burford)) 

suggested that a "U" should be coded as 

hr Ty or "present" for purposes of 

analysis. _ Indeed, Dr. Berk, 

petitioner's rebuttal expert, testified 

that the National Academy of Science 

expressly considered Shis issue during 

its two-year study of sentencing 

research and endorsed the very approach 

Baldus- adopted. (Fed. Tr. 1781-83). ..The 

District Court's conclusion... that =a 

contrary code should have been used is 

entirely baseless. 10 

  

10Moreover, Baldus testified that 

he conducted a series of alternative 

analyses to test the District Court's 

  

assumptions. (See generally Fed. Hab. 

Tr. .:1693~-1705 and S.E.. 54-66). He 

recoded unknowns as "1" or Ypresent” 

just as the Court had recommended. The 

effects on racial disparities “were 

within a percentage point of one another 

and all the coefficients that were 

statistically significant. in the one 

analysis were in the other." {Fed. Tr. 

1701), Another alternative analysis, 

employing "list-wise deletion” of all 

cases with "U" codes -- a procedure 

29 

 



  
  

B. The Effect of Multicollinearity 
  

Both respondent (Resp. Br. 2; 20-21) 

and the "District Court (J.A. 150-853), 

decry ‘“{(mlajor problems” presanted by 

the phenomenon of "multicollinsarity,” 

which, they assert, invariably 

"distort{s] the regression coefficients 

in an analysis." (Resp. Br. 20). 

Their concern is misguided. 

Professor Gross, in his thorough 

examination of the district and circuit 

court opinions in this case, has 

directly addressed the point: 

Multicollinearity occurs, in the 
court's view, whenever 'there is any 
degree of interrelationship among 
the variables,’ and it distorts the 
regrassion coefficients. . . This lis 
false. Theres is nothing in the 
assumptions of multiple regression 

  

recommended by the State's principal 
expert, (Fed, Tr, 1501-02) =~ also had 

no adverse effect upon Baldus' original 
findings. (Ted. Tr. 1695-96; ses S5.E. 
64). Indeed it increased the race-of- 
victin coefficient by two percentage 
points. 

30



analysis that requires uncorrelated 
regressors; indeed, multiple 
regression analysis is primarily 
‘useful in enalyzing data "in which 
there are correlations among the 
predictor variables." 

Gross, Race and Death: The Judicial 
  

Evaluation of Evidence of Discrimination 
  

in Capital Sentencing, 18  ..U.C. Davis L. 
  

Rev. 1275; 1292 n.83 (1985). The social 

scientists who appear in this Court as 

amici strongly concur. in this judgment. 

(Brief Amici Curiae for Dr. Franklin M. 
  

Fisher, et al., 25-28). ee also Fisher, 

Multiple Regression in Legal 
  

Proceedings, 80 Colum. L. Rev. at 713. 
  

Moreover, the issue is not one on which 

the record is silent. Petitioner's 

experts testified without contradiction 

that: the effects of multicollinearitiy, 

far from increasing the Baldus findings 
  

of racial influences in the Georgia 

system, would, if anything, . tend to 

31  



  

dampen their appearance by decreasing 
  

their reported statistical significance. 

(Fed. Tr. 1281-82; 1782). Since 

Professor Baldus found racial 

| disparities that were highly 

statistically significant despite any 

multicollinearity, the entire issue is a 

spurious concern. 

C. The "Direct Rebuttal Evidence" 
    Apart from his attacks on Professor 

Baldus's data sources, discussed above, 

respondent offered virtually no rebuttal 

evidence to undermine either the stark 

racial disparities found or their 

significance. His reference to "direct 

rebuttal evidence . . ’ that 

contradicted any prima facie case of 

system-wide discrimination, if one had 

been established" {Resp.” Br.” 4y& ls 

misleading. This reference is to an 

hypothesis, put forward by his expert at 
  

the federal hearing, that Georgia's 

32 

EEE,



racial disparities might be explained by 

the fact that white-victim cases are, on 

the whole, more aggravated than black- 

victim cases, and thus that they receive 

deservedly harsher penal treatment. 

Resp. Br. 8; see:J.A. 169-70). 

Respondent's hypothesis, like any 

other, might easily have been tested by 

determining whether white- and black- 

victin cases at the same levels of 
  

aggravation are, in fact, similarly 
  

treated. (Fed. Tr... 1664). Although 

respondent's expert admitted on cross- 

examination that such critical testing 

"would be desirable” (Fed. Tr. 1813), he 

chose not. .to.sundertake; it. . Instead, 

respondent rested his case on untested 

assumptions of precisely the sort 

condemned by the Court as inadequate in 

Bazemore Vv. Friday, 902-L.Ed.2d. a2t.-333 
  

n.l4. See, e.qg., Trout v. Lehman, 702 
  

F.2d a.-3102; 

33 

 



I —— 

Petitioner, however, did not permit 

thats assumptions to go unexamined. 

Instead, his experts addressed this 

hypothesis directly (Fed. Tr. 31297; 

17229-32;1759~61), tested it thoroughly 

{Fed. Tr. 1291-96; ges GN 5, 6,7, 8; 

see also DB92), and conclusively proved 
  

that racial disparities in Georgia are 

not the result “of any differences in 

average aggravation levels between 

white- and black-victim cases. (Fed. Tr. 

1232). One powerful indicator of this 

finding appears in the Supplemental 

Exhibits at page 72. The different bands 

for white- and black-victim cases reveal 

that as aggravation levels rise, a 

substantial gap in the death-sentencing 

rate opens between cases at the same 

level of aggravation. Nothing in 

respondent's hypothesis addresses, much 

34 

 



less refutes, this central truth.11 

D. The Suggestion of Contrary 
  

  

Findings 

Respondent quotes tha Court of 

Appeals for the proposition that 

Professor Baldus's first study, the PRS, 

"revealed no race of defendant effects 

  

llone brief submitted by amici 
speculates, despite the evidence, that 
race-of-victim disparities in Georgia 
surely could not reflect decisionmaker 
bias, ‘since’ “"the victim "lis "perforce 
absent from the trial and the victim's 
race is rarely a matter of relevant 
concern at trial.” {HLF Br. 4). The 

remark betrays lack of familiarity with 
the record and with the normal course of 
capital trials. As a matter of record, 
Professor Baldus's data demonstrate that 
much of the reported racial 
discrimination occurs through the 
pretrial and presentencing decisions of 
Georgia prosecutors, who invariably know 
the race of the victims involved. As a 
matter of trial practice, moreover, it 
is the rare Georgia case where the jury 
is not exposed, during the trial itself, 
to photographs of the *victin; to 
testimony from the victim's family, or 

to other clear indicators of the 

victim's race. In addition, pretrial 

exposure to newspaper accounts of 

homicides, as well as local knowledge of 

the victim among jurors in rural areas 

and small towns, often gives most jurors 

knowledge of the victim's" ‘race well 

before trial. 

35 

 



  

whatsoever and revealed unclear race of 

victin effects.” . (Resp. Br. 4, citing 

JA. 247). Several amici also suggest 

that contrary findings on the race-of- 

victim issue have been reported by other 

researchers. (See WLF Br. 4: 18- 

20) (Bureau of Justice Statistics); WLF 

Br. 18~19 n.4 (Note, 33-8tan. L. Rev. 75 

{1980);: Cal. Br. 12. n.5 (Xleck, 9 Law & 

Human Behavior 271 {1985).) None of 

these assertions is accurate. Fvery 

researcher who has ever studied 

. Georgia's post-Furman sentencing 

patterns has found a significant race- 

of-victim effect, (Sea the articles 

cited in petitioner's principal brief at 

Page 51-n.16.) 

The Court of Appeals' adverse remark 

about the race-of-victim findings in the 

Procedural Reform Study is unsupported 

by any; citation and . is. wrong. {J.A. 

247). The record reveals that many of 

36 

T_T.



Professor Baldus's PRS analyses did find 

strong racial effects. For example, DB 

98, included in the Supplemental 

Exhibits at 58, reports highly 

statistically significant race-of-victim 

éffects, using. PRS data, for . a wide 

range of statistical models, including 

5-variable, 9-variable, 6l-variable, and 

164-variable models. Baldus reported and 

commented upon many other strong race- 

of-victim effects disclosed by his 

analysis of the PRS data. (See Fed. Tr. 

905-914; 917-919; 939-40; DB95; DB96..) 

One amici brief suggests that 

statistics compiled by the Bureau of 

Justice Statistics. of the United States 

Department of Justice, which report a 

higher death-sentencing rate for white 

defendants than for black defendants, 

"discredit petitioner's sweeping 

contention that anti-black 

discrimination permeates the capital 

37 

 



EEE 

sentencing process.” (WLF Br. 18). In 

fact, these BJS statistics are 

consistent with Professor Baldus's own 

findings. For example, Baldus found 

that 7 of evary 100 white defendants, 

but only 4 of every 100 black 

defendants, received a death sentence in 

Georgia during the 1973-1979 period. 

(Sea S.E. 48). Upon further analysis, 

however, he concluded that the 

differences are not explained by any 

"anti-white” bias in Georgia, but rather 

by the fact that most white defendants 

in Georgia murder other whites, while 

most black defendants murder other 

  

blacks. {See SF, 47) The powerful 

influence of the victim's race in 

Georgia death-sentencing decisions 

simply overwhelms the less powerful 

race-of-defendant effects. 

Amici Washington Legal Foundation et 

al. also mention "other reputable 

38 

EE...



studies [that] undercut the claims of 

victim-anchored racial discrimination in 

capital sentencing.” {(WL¥ Br. 18 & 

n.4). They . cite ..a «single work, a 

student note reporting a limited 

analysis of data from a four-year period 

collected in another state. Note, 33 

Stan. L. Rev. 15 (1980). Even this 

study, however, largely replicates 

Baldus's principal findings. The student 

found that "black offenders who killed 

whites were convicted of First degree 

murder about four times more often than 

black offenders who killed blacks," id. 

at 87, and that such defendants received 

death sentences nearly seven times as 

often. Id. While the student asserted 

that "the inference of discrimination 

collapses” when the analysis is 

restricted to felony-related murder 

cases, id.at 88, his data actually 

reveal the following death-sentencing 

39 

 



rates among all felony-related 

homicides: 

Black kills white 50f 61 8% 

White kills white 4 of 82 8% 

Black kills black I 026 4% 

White kills black Gof 3 0% 

Id, at 89, Table 4, Although the small 

number of felony-related murder cases 

involved precludes a statistically 

Significant finding, the pattern of 

results supports Professor Baldus's 

claims. 

Other amici refer the Court “Ho 

Professor Kleck's article for "a recent, 

objective review of some of these 

studies and conclusions.” Id.) 

Professor Kleck's article is indeed 

Instructive; it concludes that while 

most hypotheses of racial discrimination 

in ths criminal justice system are 

overstated, prior research does support 

the following conclusions: 

40 

I...



(1) The death penalty has not 

generally been imposed for 
murder in a fashion 
discriminatory toward blacks, 
except in the South. (emphasis 
added) 
  

* *® x 

(5) There appears to be a 
general pattern of less severe 
punishments of crimes with black 
victims than those with white 
victims, especially in 
connection with the imposition 
of the death penalty. 

Kleck, Life Support for Ailing 
  

Hypotheses: Modes of Summarizing the 
  

Evidence for Racial Discrimination in 
  

Sentencing, 9 Law & Human Behavior 271, 
  

212 (1985). Professor Kleck thus 

directly ratifies the principal results 

reported in this case, and reaffirms 

Professor Baldus's observation that the 

"triangulation" of research findings 

provides one fundamental reason for 

believing "that there are real race 

effects operating in the charging and 

sentencing system in this state." (J.A. 

48). 

   



  

CONCLUSION 
  

The history of the adminis- 

tration of the death penalty in Georgia 

is a history marred by racial discri- 

mination. Qver 81% of ‘all. those 

executed beween 1930 and 1970 were 

black, (see United States Department of 
  

Justice, Capital Punishment 1930-1970 
  

at 13), just as 6 out of 7 executed in 

the post-Furman period —— under 

Georgia's revised capital statutes-- 

have been blacks whose victims were 

white, (Brief for the Congressional 

Black Caucus, et al., as Amici Curiae, 
  

at 5.) Although respondent continues to 

insist that Georgia's post-Furman system 

is "functioning as it was intended to 

function,” (Resp. Br. 5), Professor 

Baldus has amply demonstrated the 

42 

EE



existence of strong race-of-victim 

disparities, as well as race-of- 

defendant disparities against blacks 

whose victims are white. This 

discrimination occurs exactly where it 

might have been predicted -- among the 

"midrange" of moderately aggravated 

cases, where petitioner McCleskey's own 

case is found.l1l2 

The Eighth and Fourteenth Amendments 

surely require no more of petitioner 

than this evidence, which renders it 

"more likely than not! that racial 

  

l12Responden:c quarrels with this 
mid-range analysis -- hypothesizing that 
"different rankings could be given to 
the cases "depending on what variables 
might be included in a particular 
regression." (Resp. Br. 22). Yet 

predictably, respondent has offered 

no analysis in which Georgia racial 

results are different. Respondent's 

expert, who spent over 1000 hours prior 

to the federal hearing reanalyzing the 

Baldus data (Fed. Tr. 1135786). never 

uncovered any defensible model or any 

set of variables that could explain, 

or even diminish significantly, the role 

played by race as a determinant in the 

Georgia capital system. 

43  



  

  

  

  

discrimination has been at work in 

Georgia's capital sentencing system 

during the 1973-1979 period. The State's 

demand for still further Proof is 

certainly not, aticthis: Juncture,isa 

legitimate plea for more careful 

examination. It is instead a heedless 

request that Georgia be permitted to 

continue its age-old capital sentencing 

practices -- despite the facts, despite 

the law, despite the Constitution. 

Amici have contended that it would 

be "repugnant to any decent sense of law 

and Justice” for a capital inmate to 

"escape an otherwise valid death 

sentence by invoking the race: of his 

Victim." (WLF Br. 2); That's not what 

this case is about. The real issue is 

whether petitioner and other Georgia 

inmates have received their death 
  

sentences in part because of the race of 

their victims. Decency, law, and 

dd 

 



justice are properly invoked to guard 

against such a possibility, pot +o 

condone it. 

The Court should reverse the 

judgment of the Court of Appeals. 

  Dated: October 3, 1986 

Respectfully submitted, 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, II 

*JOHN CHARLES BOGER 

DEVAL L. PATRICK 

VIVIAN BERGER 

99 Hudson Street 

New York, New York 10013 

(212) 219-1900 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

TIMOTHY X. FORD 
600 Pioneer Building 
Seattle, Washington 98104 

ANTHONY G. AMSTERDAM 

| New York University 
School of Law 

| 40 Washington Square South 
New York, New York 10012 

*Attorney of Record 

a NEYS C iE 
Fo, 4 ¥ 

A 
& 

   





  

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

— Vv. 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & Classification Center. 

  

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit 

  

PETITIONER'S REPLY BRIEF 

  

JULIUS L. CHAMBERS 

JAMES M. NABRIT, III 

* JOHN CHARLES BOGER 

DEVAL L. PATRICK 

VIVIAN BERGER 

99 Hudson Street 

New York, New York 10013 

(212) 219-1900 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

TIMOTHY K. FORD 
600 Pioneer Building 
Seattle, Washington 98104 

ANTHONY G. AMSTERDAM 
New York University 
School of Law 
40 Washington Square South 
New York, New York 10012 

*Attorney of Record 

ATTORNEYS FOR PETITIONER 

 



  

TABLE OF CONTENTS 
  

ARGUMENT 
  

I. There Is No "Death Penalty 
Exception" To The Equal 
Protection Clause, And 
The Court Should Firmly 
Decline Respondent's 
Invitation To Insulate 
Capital Sentencing 
Systems From Claims Of 
Racial Discrimination ...... 3 

II. None Of The Purported 
Deficiencies Identified 
By Respondent Or Found 
By The District Court 

Impeach The Basic Show- 
ing Of Racial Discrim- 
ination Made By 
Petitioner ..c.. i vivivevnss 14 

A. The Reliability of the 
Data Base . viv svecos ons 16 

{i) Data Sources ,...... 16 

(ii) Questionnaire 

Design ....... +. 19 

(iii) Purported Coding 

Brrors .....cve on 23 

(iv) Purported Mis- 
treatment of 

"Unknowns . .. 26 

 



  

CONCLUSION 

The Effect of Multi- 
collinearity ives ve nes 

The "Direct Rebuttal 

FV IiAenCa! os ch Css on 

The Suggestion of 
Contrary Findings. ....... 

LN RNS ee SEY Da a Ge Wie EW EL TR To Gd I TN Yel PU ES me £5 ER 0S 

ii 

30 

32 

35 

42 

 



  

TABLE OF AUTHORITIES 
  

Cases Page 

  

Batson v. Kentucky, U.S8. , 
B68) vv.icinh 3,4,8 90 L.E4.24 69 (19 

Bazemore v, Friday, U.S. , 
92 L.BEA.24 315 (1988)....... 10,16,33 

Detroit Police Officers Ass'n 

Vv. Young, 608 F.2d 671 
(8th Cire. 1979) iv senvisivnvius i: 

Gregg v. Georgia, 428 U.S. 153 
LI078) «vv avi inn i vt vas rae vray 5:,6,13 

Keyes v. School District No. 1, 
413 U.S, 189 (1973) i. iii 8 

McGautha v. California, 402 U.S. 

IB83 {1971 ). vie. itv rns ever einn 5 

Segar v. Smith, 738 F.2d4 1249 
(D.C. Cir. 1984)... vosniviin:eni 11 

State v. Andrews, 574 P.2d 709 

{Uta 1971) coh veii vnc ciara 23 

Trout v. Lehman, 702 F.2d 1094 

(D.C. Cir, 1983) cies vv ibis 11,33 

Village of Arlington Heights wv. 
Metropolitan Housing Development 
Corp., 429 U.5.: 252 (1977)..... 4,7 

Vuyanich v. Republic Nat'l Bank, 
505 F. Supp. 224 (N.D. Texas 
1080), cori i i vi yi revive a ee 2,511 

iii 

 



  

Washington v. Davis, 426 U.S.229 

  

E1976) ss ii ds res ii a te ent ee 4 

Statutes 

Ga. Code Ann. $§27-2537 (Supp. 191715) 6 

Ga. Code Ann. §27-2537(e) 

(SUDD. 1975) vi vane irene S) 

Other Authorities: 
  

Fisher, Multiple Regression in Legal 

Proceedings, 80 Colum. L. Rev. 

702 (1980) ott vs viv sane ii vinnie 9;31 

  

  

Gross, Race and Death: The Judicial 

Evaluation of Evidence of 

Discrimination in Capital 

Sentencing, 18 U.C. Davis L. 

Rev. 31275 (19858). ius iccvrvneevnss 31 

  

  

  

  

Kleck, Life Support for Alling 

Hypotheses: Modes of Summariz- 

ing the Evidence for Racial 

Discrimination in Sentencing, 
3 Law and Human Behavior 271 

LE OBE) yet cvs iticis ste ssni a rae 41 

  

  

  

  

Note, 33 Stan. L.Rev. 175 

COBO) ve vere cos tna vie vin 38,39,40 

United States Dep't of Justice, 
National Prisoner Statistics, 
Capital Punishment 1930-1970 
(BUG, 10971) vss iterative nanos 42 

iv 

 



  

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

vy. =~ 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & 
Classification Center. 

  

On Writ of Certiorari to the 

United States Court of Appeals for 
the Eleventh Circuit 

  

PETITIONER'S REPLY BRIEF 

  

The State of Georgia stakes its case 

largely on two propositions: first that 

capital cases are so unique that any 

statistical analysis of capital 

sentencing patterns is impossible as a 

 



  

matter of law (Resp. Br. 7-16)1. and 

second, that certain methodological 

flaws in Professor Baldus's analysis of 

the Georgia data undermine his findings. 

(Resp. Br. 16-23; 31-36). We deal with 

these points in Parts I and IX 

respectively. Neither impugns 

petitioner's strong evidence of racial 

discrimination, which continues to stand 

unmet and unrebutted by respondent, as 

it did during the 1983 federal hearing.? 

  

lgach reference to the brief for 
Respondent filed in the Court will be 
indicated by the abbreviation "Resp. 
Br.," followed by the number of the page 
on which the reference may be found. 
References to the Brief of Amici Curiae 
State of California, etc.,et al., will 
be indicated by the abbreviation "Cal. 
Br." and to the Brief Amicus Curiae of 
the Washington Legal Foundation et al. 

by the abbreviation "WLF Br." 

  

2We emphasize that petitioner has 
presented his case on alternative Eighth 
and Fourteenth Amendment grounds. We do 
not discuss our Eighth Amendment claim 
in this brief, since respondent's Eighth 
Amendment arguments were anticipated and 
dealt with in our opening brief . (See 

Pet. Br. 41-44; 97-104.) 

 



  

x 

THERE IS NO "DEATH PENALTY EXCEPTION" 
TO THE EQUAL PROTECTION CLAUSE, AND 
THE COURT SHOULD FIRMLY DECLINE 
RESPONDENT'S INVITATION TO INSULATE 
CAPITAL SENTENCING SYSTEMS FROM CLAIMS 
OF RACIAL DISCRIMINATION 
  

Respondent first contends that, in a 

capital case, "[s]tatistical analyses 

are inadequate as a matter of 

law.” (Resp. Br. 1). While this 

argument is couched in terms of 

"statistics, its actual purport is to 

exclude capital sentencing decisions 

entirely from the normal procedures and 

standards for proof of discrimination 

  

outlined in Batson V. Kentucky, 

~~ U.s. , 90 L.Ed.24.69 (1986) and its 

precursors. Those standards permit a 

defendant to "make out a prima facie 

case of purposeful discrimination by 

showing that the totality of the 

relevant facts gives rise to an 

inference of discriminatory purpose,” 

3 

 



  

Batson Vv. Kentucky, 90 L.E4d.2d at 86. 
  

Under those standards, statistical 

evidence may sometimes Hifor all 

practical purposes demonstrate 

unconstitutionality because in various 

circumstances the discrimination is very 

difficult: to explain on nonracial 

grounds. '” Batson Vv. Kentucky, 90 
  

L.Ed.24 at 85, quoting Washington v. 
  

Davis, 426 U.S. 229, 242 (1976), See 

also Village of Arlington Heights Vv. 
  

Metropolitan Housing Development Corp., 
  

429 U.S. 252, 265-68 (19171). 

Respondent offers three interrelated 

reasons why normal principles of Equal 

Protection jurisprudence should not 

apply in capital cases: (1) "{elach 

death penalty case is unique," (Resp. 

Br... 8), involving 'too many unique 

factors relevant to each individual 

case," to permit any meaningful 

comparisons (id. at 6); (ii) the "myriad 

 



  

of factors" that influence capital 

sentencing decisions makes statistical 

analysis impossible (id. at 14); and 

(iii) many of the influential factors in 

capital cases are so subjective that 

they can neither be identified nor 

quantified (id.). 

Respondent's first argument echoes 

the skepticism expressed in McGautha v. 
  

California, 402 U.S. 183, 204-07 (19171), 
  

that any objective standards can be 

found or formulated to regulate the 

choice of sentence in capital cases. 

Since every case is unique, respondent 

reasons, there can be no way to compare 

the dispositions in different cases, and 

thus there can be no proof that race has 

played an impermissible role. Yet 

McGautha's viewpoint has not stood the 
  

test of time: as this Court recognized 

in Gregg vv. GCeorgia, 428 U.S, 153, 193- 
  

94 {1978), "the fact is that [capital 

 



  

sentencing] standards = have been 

dsvsiooad . «+» [and that they] provide 

guidance to the sentencing authority."S 

Respondent elsewhere argues that 

Georgia's capital system is 

constitutional precisely because its 

statutory sentencing standards guide 

jury discretion among more and less 

death-worthy cases (see Resp. Br. 23-31; 

see also, Cal. Br. 18-23; WLF Br. 5-7): 
  

he cannot simultaneously maintain that 

capital cases are so unique that it is 

impossible to identify meaningful 

  

SGeorgia's statute requires 
appellate review of death sentences to 
determine whether each is 
"disproportionate to the penalty imposed 
in similar cases, considering both the 
crime and the defendant.” Ga. Code Ann. 
§27-2531. "If the [Georgia Supreme 
Court} . . . affirms a death sentence, 
it is required to include Jin its 
decision reference to similar cases that 
it has taken into consideration. §27- 

  

2537 (e) (Supp. 1975) ." Gregg V. 

Georgia, 428 U.S. at 167. All of this 
is, of course, fundamentally 
inconsistent with respondent's position 
that every capital case is so unique as 
to be incomparable with others. 

6 

 



  

sentencing standards when cases are 

actually compared. 

Respondent's second argument 

transforms a quantitative distinction 

into a qualitative one. He suggests that 

since a capital sentencing decision 

involves many more considerations than 

an employment decision, evidentiary 

tools long held to be appropriate in 

employment discrimination cases simply 

have no place in capital cases. (Resp. 

Br. 8-10; see also Cal. Br. 23-28). 
  

This argument is wrong in law and 

fact. Governmental decisions in which a 

large variety of legitimate variables 

must be considered are subject to proof 

of discrimination by the usual 

"sensitive inquiry into such 

circumstantial and direct evidence of 

intent as may be available." Village of 
  

Arlington Heights Vv. Metropolitan 
  

Housing Development Corp., 429 U.S. 252, 
  

 



  

266 (1977) (rezoning); Keves vv. School 
  

  

District No. i, 413 3.8. 189 

(1973) (school location and zoning). For 

example, in no area Of. the Jlaw—— 

including capital sentencing -- has a 

wider or more subtle array of factors 

traditionally been deemed legitimate 

than lin the exercise of peremptory 

challenges to prospective jurors. Yet 

in Batson the Court specifically held 

that traditional Equal Protection 

principles should guide lower courts in 

determining whether race has affected 

the prosecutor's decision to strike 

jurors peremptorily. Batson v. Kentucky, 
  

90 L.E4.24 at 87-88. 

Furthermore, perhaps the greatest 

virtue of multiple regression analysis 

is precisely its ability to sort out and 

determine the influence of one factor, 

despite the presence of a large number 

of other factors which may also exert 

 



  

independent influence. See, e.qg., 
  

  

Fisher, Multiple Regression in Legal 

Proceedings, 80 Colum. L. Rev. 702, 704- 
  

06 (1980); Vuvanich v., Revnublic Nat'l 
  

Bank, 505 'F. Supp. 224, 267-69 (N.D. 

Tex. 1980). Multiple regression 

techniques have regularly been relied 

upon determining medical, scientific, 

and agricultural issues many of which, 

like capital cases, involve scores of 

relevant considerations. As Professors 

Baldus and Woodworth testified below, 

for example, the statistical methods 

employed in petitioner's case were also 

central to the National Halothane Study, 

through which the national medical 

community made its life-or-death 

decision on the best anaesthetic for 

general medical use. (Fed. Tr. 155-58; 

1200-02). 

As his third justification for 

jettisoning normal Equal Protection 

 



  

" principles, respondent invokes an 

unnamed and apparently unknowable host 

of subjective factors that, he surmises, 

might affect capital decisionmaking. 

Respondent concludes that petitioner's 

failure —— indeed, the probable 

inability of any researcher -- to 

include all such factors in an empirical 

study necessarily renders proof of 

racial discrimination "impossible" in 

capital cases. (Resp. Br. 14). 

Again, the argument is both legally 

and scientifically unsound. Bazemore v. 
  

Friday specifically held that "[w]hile 

the omission of variables from a 

regression analysis may render the 

analysis less probative than it might 

otherwise be, it can hardly be said, 

absent some other infirmity, that an 

analysis which accounts for the major 

factors 'must be considered unacceptable 

as evidence of discrimination. '? 92 

10 

 



  

L.BEd.24 315, 331 (1986). Accord: Segar 
  

Vv. Smith, 738 F.24 1249, 1287 (D.C. Cir. 
  

1984); Trout vv. Lehman, 202 F.24 1094, 
  

1101-02 (D.C. Cir. 1983); Detroit Police 
  

Officers Ass'n vy. Young, 608 PF.24 871, 
  

687 (6th Cir. 1979); Vuyanich v. 
  

Republic Nat'l Bank, 505 Supp. at 255- 
  

56. 

This legal holding accurately 

reflects the scientific reality. 

Information on a missing variable does 

not make a significant difference unless 

the omitted variable (i) has an 

influence on death-sentencing which is 

not "captured by" other variables 

included in the analysis, and (ii) is 

itself systematically associated with 

race. (Fed. Tr.1690-%4;1265-73). Thus, 

omission of a variable such as the 

"credibility of the witnesses" (Resp. 

Br. 12) would be important only if such 

"credibility" was not correlated with 

11 

 



  

the detailed "strength-of-evidence” 

variables which Professor Baldus did 

include in his questionnaire (see S.E. 

23-26, questions 61-62D; id. at 29-33),4 
  

and if it were plausible to believe that 

jurors regularly {for non-racial 

reasons) find witnesses more credible in 

white-victim rather than black-victim 

cases. The crucial point is that 

unidentified factors which are not 

associated with race will occur randomly 

in white-victim cases and black-victim 

cases. They will not produce, and cannot 

explain away, a systematic pattern of 

differential capital sentencing between 

racial groups. Professor Baldus, who 

controlled for over 230 relevant 

variables, undoubtedly accounted for the 

"major sentencing determinants” in the 

Georgia system. Respondent's expert 

  

4Each reference to the Supplemental 
Exhibits will be indicated by the 
abbreviation "S.E." 

12 

 



  

admitted that he had no idea whether any 

additional variables might make a 

difference (Fed. Tr. 1569; 1591-92); and 

the eminent social scientists who have 

submitted a brief amici curiae in 
  

support of petitioner find 1t "extremely 

unlikely" that any such factor remains 

lurking in the shadows. (Brief Amici 

Curiae for Dr, Franklin M. Pisher, et 

al.,, at 2275. 

% * : * 

Respondent has, in sum, suggested no 

valid reason why constitutionally-based 

standards of proof that are applicable 

in all other areas of the law should be 

abandoned when a death-sentenced inmate 

seeks to prove that "in fact the death 

penalty [is] . . . being administered 

for any given class of crime in a dis- 

criminatory, standardless, or rare 

fashion," Gregg v. Ceorgia, 428 U.S. at 
  

13 

 



  

223 (White, J., concurring in the 

judgment) . 

II 

NONE OF THE PURPORTED DEFICIENCIES 
IDENTIFIED BY RESPONDENT OR FOUND BY 
THE DISTRICT COURT IMPEACH THE BASIC 
SHOWING OF RACIAL DISCRIMINATION 
MADE BY PETITIONER 
  

Respondent alternatively invokes 

findings of the District Court to 

contend factually: {i1) that the "data 

base” upon which Professor Baldus and 

his colleagues drew for their 

information was so deficient -- and 

their questionnaire and data-collection 

methods so flawed -- that no valid 

statistical analyses can be based on 

their work (Resp. Br. 2; 17-19); (11) 

that "multicollinearity” distorts 

Professor Baldus's research findings 

(Resp. Br. 2-3; 20-21); (iii) that the 

State's hypothesis that "white victim 

14 

 



  

cases are simply more aggravated and 

less mitigated than black victim cases" 

(Resp.Br. 6) provides "direct rebuttal 

. evidence to Baldus'theory" (Resp. Br. 

4); and (iv) that contrary findings on 

the race-of-victim issue were reported 

by Professor Baldus himself (Resp. Br. 

4), and, amici contend, by other sources 

as well. (See Cal. Br. 12 n.5; WLF Br. 

18-19 & n.4.) 

None of these arguments is correct; 

the record plainly refutes each one. It 

is hardly accidental that not =a single 

judge of the Court of Appeals rested his 

or her opinion, even in the alternative, 

on the factual findings of the District 

Court. To the limited extent that those 

findings were not marred by legal 

error, d they were clearly erroneous. 

  

S5The District Court's use of 

incorrect legal standards precludes 
reliance upon its findings of 
fact. For example, the District Court 
held: that "[aln important limitation 

15 

 



  

We will examine below a number of the 

more prominent findings relied upon by 

respondent. ® 

A. The Reliability of the Data Base 
  

(i) Data Sources -— Respondent 
  

contends that the sources of data 

available to Professor Baldus and his 

colleagues were "'very summary in many 

  

placed on the data base was the fact 
that the questionnaire could not capture 
every nuance of every case," (J.A. 136), 

and that "[m]Jultiple regression requires 
complete correct data to be utilized." 
{J.A. 144). The District Court also 

concluded, after an extensive, somewhat 
confused discussion, entitled "What a 
Multivariate Regression Can Prove," 
{J.5. 1632), that "multivariate analysis 

is ill suited to provide the court with 
circumstantial evidence of the presence 
of discrimination, and it is incapable 
of providing the court with measures of 
qualitative difference in treatment 
which are necessary to a finding that a 
prima facie case has been established 
with statistical evidence." (J.A. 168- 

69) (italics omitted). All of these 

holdings are contrary to this Court's 
subsequent opinion in Bazemore Vv. 
Friday, 92 L.Ed.24 at 331. 

  

6A more thorough examination of the 
District Court's findings appears: in 
Appendix E to the Petition for 
Certiorari. McCleskey v. Kemp, No. 84-6811. 
  

16 

 



  

respects.'" (Resp. Br. 18). The Parole 

Board records, respondent claims, "were 

brief and the police reports from which 

the Parole Board summaries were prepared 

were usually only two or three pages 

long.” Id. The Parole Board filles, the 

District Court found, provided "'no 

information about what a prosecutor felt 

about the credibility of any witnesses. 

R. 1117.'" (Resp. Br. 18). 

This characterization of the data 

sources is incorrect almost from start 

to Finish. Professor Baldus drew his 

information from an extraordinary range 

of official Georgia sources on each 

case, including the full trial 

transcripts, all appellate briefs, the 

files of the Georgia Department of 

Offender Rehabilitation, the files of 

the Georgia Bureau of Vital Statistics, 

and the files of the Parole Board. (See 

S.E. 43, DB 39). L.G. Ware testified 

17 

 



  

that the parole officials like himself 

who compile each of its files (all 

college graduates) prepare a special 

report: "We check local criminal 

records, we go to the clerk of [1331] 

court, get sentence information, 

indictments, jail time affidavits, we 

get police reports from the agency that 

handled the case." {J.A. 52), In 

homicide cases "if we didn't think the 

report had all the information we 

thought we needed, we may interview the 

officers that were involved in the case 

[or] the district attorney." (J.A. 

54). A Parole Board Manual guides 

officials at every step: 

[The report] should be obtained 

in narrative form. It should be 
taken from the indictment, the 
district attorney's office, the 
arresting officers, witnesses 
and the victim. A word picture 
telling what happened, when, 
why, where, how and to whom 
should be prepared. . . . Parole 
officers should be as thorough 
as possible when conducting 
post-sentences on persons who 

18 

 



  

have received life sentences or 
sentences in excess of fifteen 

years. 

(7.A. 856-87). Although the District 

Court faulted the Parole Board files for 

lacking photostatic copies of the actual 

police reports in 75% of the cases (J.A. 

137), Officer Ware testified without 

contradiction that nothing "contained in 

the police reports . evi Would [be] 

routinely omit{ted]” from the Parcle 

Board files. (J.A. 53). These files, in 

fact, were often superior to the written 
  

police reports since they contained the 

results of direct interviews with police 

officers and prosecutors about each 

case. (J.A. 54). 

(ii) Questionnaire Design -- 
  

Respondent also faults Professor 

Baldus's questionnaire design, alleging 

that there are "problems with the format 

of critical items on the questionnaires, 

such that there was an insufficient way 

19 

 



  

to account for all factors in a glven 

case." (Resp. Br. 17). Respondent 

quotes the District Court that "'{a]n 

important limitation placed on the data 

base was the fact that the questionnaire 

could not capture every nuance of every 

case,'" (See J.A. 136). Once again, 

these findings and contentions are 

themselves riddled with error. Professor 

Baldus developed three questionnaires, 

two for his first study, the Procedural 

Reform Study ("PRS") and one for the 

Charging and Sentencing Study. ("CSS"). 

Any restrictions on data entry under 

the "foil entry" method criticized by 

respondent were largely limited, as 

respondent's expert conceded (Fed. Tr. 

1392), to the two PRS questionnaires. 

{Fed. Tr. 274). Professor Baldus 

testified that the "foil entry" format 

was virtually abandoned in the CSS 

questionnaire. (Fed. Tr. 1098-1101). 

20 

 



  

Since CSS data were used to conduct 

virtually all of the major analyses 

relied upon during the federal hearing, 

{Fed. Tr. 1437), respondent's criticism 

is essentially irrelevant.’ 

The District Court's complaint that 

the Baldus studies '"could not capture 

every nuance of every case" not only 

reflects a legally erroneous standard of 

proof but a straightforward 

misunderstanding of the record. 

Professor Baldus testified that because 

no questionnaire could be devised to 

  

INevertheless, as a check on the 
impact of the use of the foil method, 
Baldus identified some 50 PRS cases in 

which there had been "overflow 

information that wouldn't: fit into the 

original foils." He created new foils to 
handle the overflow information and 
reran each of the analyses. The race 
effects became "somewhat intensified 

when this additional information was 

included." (Fed. Tr. 1099-1100). Baldus 

also recoded and reran analyses 
involving the only two CSS items 
retaining the foil method of entry that 
contained overflow information. His CSS 
findings remained identical. (Fed. Tr. 1101). 

21 

 



  

anticipate every possible factor, he 

constructed a special "narrative 

summary" section precisely so that 

coiETe could "capture every nuance of 

each case." (Fed. Tr. 239; see S.E. 

36) .8 
  

8The brief of amici Washington 
Legal Foundation et al. displays a 
similar misunderstanding of Professor 
Baldus's powerful data collection 
instrument. Amici assert that one 
gruesome Utah murder they describe 
"would have been listed by the coders as 
a shooting." (WLF Br. at 24, citing the 
District Court, see J.A. 136-37). Amici 
are mistaken. Both the PRS and the CSS 
questionnaires contain numerous entries 
through which the special features of 
this case could have been coded. For 
example, the CSS questionnaire provides: 
(i) three entry foils, plus an "other" 
blank space, to code the method of 
killing (see S.E. 14); (ii) an entry to 

reflect a contemporaneous rape (S.E. 
72,0. 29): (iii) 34 separate options 

(including torture, mental torture, 
unnecessary pain, victim bound or 
gagged) in a section on special 
aggravating features of the offense 
(S.E. 15, Q. 47 A & B); as well as (iv) 

extensive entries for the respective 
roles of co-perpetrators. (S.E. 16-18, 
Q. 47-48). Finally, the "Narrative 
Summary" section instructs the coder to 
include "all facts" and "any special 
circumstances that are not covered in 
the preceding questions." (S.E. 36). 

22 

 



  

{iii) Purported Coding Errors —— 
  

Respondent faults the Baldus data 

because of ostensible "'errors in coding 

the questionnaire'" (Resp. Br. 2), which 

it says are reflected in "numerous 

inconsistencies between the coding for 

the Procedural Reform Study and the 

Charging and Sentencing Study." (Resp. 

Br. 18). The District Court, noting 

these "mismatches" between the PRS and 

the CSS questionnaires, concluded that 

coding errors pervaded the study. (J.A. 

137-39). 

Respondent's challenge to the 

accuracy of the data entries, however, 

  

In sum, the charge that "the 
collective horrors of [the Utah case] 

. cannot be reduced to neatly coded 
variables," (WLF Br. 24), is wide of the 

mark. Professor Baldus's questionnaires 
would have captured all relevant factors 
in the Utah case, including one factor 
amici have misstated -- the substan- 
tially different involvement of the two 
Utah defendants. See State v. Andrews, 
574 F.24 709 (Utah 19717). 
  

23 

 



  

did not entail any actual comparison of 

Baldus's questionnaires with the 

underlying files from which the data 

were drawn. Instead, respondent's 

expert simply ran a computer check on 

items from cases that were included in 

both: the PRS and O0S3 studies, The 

expert admitted that he made no attempt 

to compare the coding "protocols" from 

the PRS and CSS studies, to see whether 

the ostensibly "mismatched" items had 

been coded according to different 

instructions. (Fed. Tr. 1447) .9 

  

9 All CSS coders were law students 
who were carefully selected (Fed. Tr. 
301-03) and extensively trained. (Fed. 
Tr. 309-11). Coding decisions were 
guided by a comprehensive written 
"protocol" developed by Professor Baldus 
(see DB 43) which contained hundreds of 
instructions on general coding issues 
and on rules for coding specific items. 
(Fed. Tr. 310-11). During the data 
collection period, a coding supervisor 
reviewed a large proportion of all 
completed questionnaires on a daily 
basis. (Fed. Tr. 401-03). Entries were 
ultimately checked by computer for 
internal inconsistencies. {Fed. Tr. 

595-99). 

24 

 



  

In fact, Professor Baldus testified 

that the instructions often varied 

significantly. For example, the PRS 

coders were required to draw inferences, 

if reasonable, from the file data; in 

the CSS study, coders were instructed 

not to draw inferences if information 

was not present in the file. {Fed. Tr. 

367). Respondent was eventually forced 

to concede, rr don't believe [our 

expert] is indicating either one is 

necessarily right or wrong in his 

judgment. He's just indicating he's 

done a computer count and found these 

inconsistencies." (Fed. Tr. 1444). 

Professor Baldus, however, did 

conduct a broad reanalysis Of. the 

alleged mismatches, and reported that 

approximately one percent were 

attributable to data entry, coding, or 

key punch error: 

[Tlhat translates into an error 

rate of approximately one-half 

25 

 



  

of one percent in each of the 
two studies. However, we found 

on further examination that 

the error rate in the 

Procedural Reform Study was 
higher than it was in the 
Charging and Sentencing Study. 

(Fed. Tr. 1719-20). Since the findings 

presented to the District Court came 

largely from the CSS study, the relevant 

error rate was very low. 

  

  

(iv) Purported Mistreatment of 

"Unknowns" -- Respondent poses one 

final data collection issue -- the 

number of items that were coded 

"unknown" in the studies, and Professor 

Baldus's treatment of those unknowns in 

his analyses. (Resp. Br.19). Throughout 

the CSS study, Professor Baldus's coders 

were instructed to enter a "1" if a fact 

were "expressly stated in the file", a 

n2" jf the fact was "suggested by the 

file but not specifically indicated,” = 

blank if the fact were not present in 

the case, and a YU" if the coder could 

26 

 



  

not classify the item based on the file. 

(Fed. Tr. 444-45). Once statistical 

analysis began, the "U" was recoded as 

"not present.” 

In his testimony, Professor Baldus 

examined one aggravating variable -- 

that the "victim pled for his life’-- 

to clarify the logic. behind this 

standard coding procedure. If there had 

been witnesses present during the crime, 

he explained, a coder would code the 

variable either present or absent, 

depending on the witnesses' accounts. 

But in the absence of witnesses or other 

evidence, Baldus reasoned that one could 

draw no inference either way, and the 

item would be coded "U." {Fed, Tr. 

1685-86; see also id. 1155-58). 
  

This explanation casts in a 

radically different light the District 

Court's ominous-looking list of 

variables coded "U" in more than ten 

27 

 



  

percent of the cases. {J.A. 139-41). 

Many involve either state-of-mind or 

relational variables that are often 

unknown to any outside investigator. 

For example, "Defendant's Motive was 

Sex" would be important if known to a 
  

prosecutor or jury. If the fact could be 

neither eliminated nor confirmed from 

the evidence, however, Baldus's rule 

would be to code it "unknown" and 

ultimately discount its impact either 

way by treating it as non-existent. 

The District Court challenged the 

basic logic of. this coding treatment: 

"the decision to treat the 'U' factors 

as not being present in a given case 

seems highly questionable . . . it would 

seem that the more rational decision 

would be to treat the 'U' factors as 

being present." (J.A. 139). Yet neither 

petitioner's experts (Fed. Tr. 1684-90) 

(Baldus); Fed. Tr. 1761-63 (Berk)), nor 

28 

 



  

respondent's experts (Fed. Tr. 1502-04; 

{Katz);: Fed. Tr. 1656-58 (Burford) ) 

suggested that a "U" should be coded as 

71 or "present" for purposes of 

analysis. Indeed, Dr. Berk, 

petitioner's rebuttal expert, testified 

that the National Academy of Science 

expressly considered this issue during 

its two-year study of sentencing 

research and endorsed the very approach 

Baldus adopted. (Fed. Tr. 1761-63). The 

District Court's conclusion that a 

contrary code should have been used is 

entirely baseless. 10 
  

10Moreover, Baldus testified that 
he conducted a series of alternative 

analyses to test the District Court's 

  

assumptions. (See generally Fed. Hab. 
Tr. 1693-1705 and S.E. 64-66). He 
recoded unknowns as "1" or "present" 
just as the Court had recommended. The 
effects on racial disparities 'were 
within a percentage point of one another 
and all the coefficients that were 
statistically significant in the one 
analysis were in the other." (Fed. Tr. 
1701). Another alternative analysis, 
employing "list-wise deletion" of all 
cases with "U" codes -- a procedure 

29 

 



  

B. The Effect of Multicollinearity 
  

Both respondent (Resp. Br. 2. 20-21) 

and the District Court (J.A. 150-53), 

decry "[m]ajor problems" presented by 

the phenomenon of "multicollinearity,” 

which, they assert, invariably 

"distort[s] the regression coefficients 

in an analysis." (Resp. Br. 20). 

Their concern is misguided. 

Professor Gross, in his thorough 

examination of the district and circuit 

court opinions in this case, has 

directly addressed the point: 

Multicollinearity occurs, in the 
court's view, whenever 'there is any 
degree of interrelationship among 

the variables,' and it distorts the 
regression coefficients. . . This is 
false. There is nothing in the 
assumptions of multiple regression 

  

recommended by the State's principal 
expert, (Fed, Tr. 1501-02) -- also had 

no adverse effect upon Baldus' original 
findings. (Fed. Tr. 1695-96; see S.E. 
64). Indeed it increased the race-of- 

victim coefficient by two percentage 

points. 

30 

 



  

analysis that requires uncorrelated 

regressors; indeed, multiple 
regression analysis is primarily 

useful in + analyzing data in which 
there are correlations among the 
predictor variables.” 

Gross, Race and Death: The Judicial 
  

Evaluation of Evidence of Discrimination 
  

in Capital Sentencing, 18 U.C. Davis L. 
  

Rev, 1275, 1292 n.83 (19853), The social 

scientists who appear in this Court as 

amici strongly concur in this judgment. 

(Brief Amici Curiae for Dr. Franklin M. 
  

Fisher, et al., 25-26). See also Fisher, 

Multiple Regression in Legal 
  

Proceedings, 80 Colum. L. Rev. at 113. 
  

Moreover, the issue is not one on which 

the record is silent. Petitioner's 

experts testified without contradiction 

that the effects of multicollinearity, 

far from increasing the Baldus findings 
  

of racial influences in the Georgia 

system, would, if anything, tend to 

31 

 



  

dampen: their appearance by decreasing 
  

their reported statistical significance. 

(Fed. Tr. 1281-82; 1282). Since 

Professor Baldus found racial 

disparities that were highly 

statistically significant despite any 

multicollinearity, the entire issue is a 

spurious concern. 

C. The "Direct Rebuttal Evidence” 
  

Apart from his attacks on Professor 

Baldus's data sources, discussed above, 

respondent offered virtually no rebuttal 

evidence to undermine either the stark 

racial disparities found or their 

significance. His reference to "direct 

rebuttal evidence : ; ‘ that 

contradicted any prima facie case of 

system-wide discrimination, if one had 

been established" (Resp. Br. 4) lis 

misleading. This reference is to an 

hypothesis, put forward by his expert at 
  

the federal hearing, that Georgia's 

32 

 



  

racial disparities might be explained by 

the fact that white-victim cases are, on 

the whole, more aggravated than black- 

victim cases, and thus that they receive 

deservedly harsher penal treatment. 

(Resp. Br. 6; see J.A. 169-70). 

Respondent's hypothesis, like any 

other, might easily have been tested by 

determining whether white- and black- 

victim cases at the same levels of 
  

aggravation are, in fact, similarly 
  

treated. {Fed. Tr. 1664). Although 

respondent's expert admitted on cross- 

examination that such critical testing 

"would be desirable" (Fed. Tr. 1613), he 

chose not to undertake it. Instead, 

respondent rested his case on untested 

assumptions of precisely the sort 

condemned by the Court as inadequate in 

Bazemore vv. Fridav, 92 L.Fd.24 at 333 
  

n.l4a. See, e.qg., Trout v. Lehman, 702 
  

F.24. at 1102. 

33 

 



  

Petitioner, however, did not permit 

these assumptions to go unexamined. 

Instead, his experts addressed this 

hypothesis directly {Fed., Tr. 1297; 

1729-32:;1759-61), tested it thoroughly 

(Fed. Tr. 1291-96; see GW 5, 6, 1, 8; 

see also DB92), and conclusively proved 
  

that racial disparities in Georgia are 

not the result of any differences in 

average aggravation levels between 

white- and black-victim cases. (Fed. Tr. 

1232). One powerful indicator of this 

finding appears in the Supplemental 

Exhibits at page 72. The different bands 

for white- and black-victim cases reveal 

that as aggravation levels rise, a 

substantial gap in the death-sentencing 

rate opens between cases at the same 

level of aggravation. Nothing in 

respondent's hypothesis addresses, much 

34 

 



  

less refutes, this central truth.1l1 

D. The Suggestion of Contrary 
Findings 
  

  

Respondent quotes the Court of 

Appeals for the proposition that 

Professor Baldus's first study, the PRS, 

"revealed no race of defendant effects 

  

llone brief submitted by amici 
speculates, despite the evidence, that 
race-of-victim disparities in Georgia 
surely could not reflect decisionmaker 
bias, since "the victim is perforce 
absent from the trial and the victim's 
race is rarely a matter of relevant 
concern at trial." (WLF Br. 4). The 

remark betrays lack of familiarity with 
the record and with the normal course of 
capital trials. As a matter of record, 
Professor Baldus's data demonstrate that 
much of the reported racial 
discrimination occurs through the 
pretrial and presentencing decisions of 
Georgia prosecutors, who invariably know 
the race of the victims involved. As a 
matter of trial practice, moreover, it 
is the rare Georgia case where the jury 
is not exposed, during the trial itself, 
to photographs of the victim, to 
testimony from the victim's family, or 
to other clear indicators of the 
victim's race. In addition, pretrial 
exposure to newspaper accounts of 

homicides, as well as local knowledge of 
the victim among jurors in rural areas 
and small towns, often gives most jurors 
knowledge of the victim's race well 
before trial. 

35 

 



  

whatsoever and revealed unclear race of 

victim effects.” (Resp. Br. 4, citing 

J.A, 241). Several amici also suggest 

that contrary findings on the race-of- 

victim issue have been reported by other 

researchers. (See WLF Br. 4; 18- 

20) (Bureau of Justice Statistics); WLF 

Br. 18-19 n.4 (Note, 33 Stan. L. Rev, 15 

{1980}; Cal. Br. 12 n.5 (Kleck, 9 Law & 

Human Behavior 271 (1985) .) None of 

these assertions is accurate. Every 

researcher who has ever studied 

Georgia's post-Furman sentencing 

patterns has found a significant race- 

of-victim effect. (See the articles 

cited in petitioner's principal brief at 

page 51 n.16.) 

The Court of Appeals' adverse remark 

about the race-of-victim findings in the 

Procedural Reform Study is unsupported 

by any citation and is wrong. (J.A. 

247). The record reveals that many of 

36 

 



  

Professor Baldus's PRS analyses did find 

strong racial effects. For example, DB 

98, included in the Supplemental 

Exhibits at 58, reports highly 

statistically significant race-of-victim 

effects, using PRS data, for a wide 

range of statistical models, including 

5-variable, 9-variable, 6l1-variable, and 

l164-variable Bodels. Baldus reported and 

commented upon many other strong race- 

of-victim effects disclosed by his 

analysis of the PRS data. (See Fed. Tr. 

905-914; 917-919; 939-40; DB95; DB96.) 

One amici brief suggests that 

statistics compiled by the Bureau of 

Justice Statistics of the United States 

Department of Justice, which report a 

higher death-sentencing rate for white 

defendants than for black defendants, 

"discredit . petitioner's sweeping 

contention that anti-black 

discrimination permeates the capital 

37 

 



  

sentencing process." (WLF Br. 18). In 

fact, these BJS statistics are 

consistent with Professor Baldus's own 

findings. For example, Baldus found 

that 7 of every 100 white defendants, 

but only 4 of every 100 black 

defendants, received a death sentence in 

Georgia during the 1973-1979 period. 

(See S.E. 46) . Upon further analysis, 

however, he concluded that the 

differences are not explained by any 

"anti-white" bias in Georgia, but rather 

by the fact that most white defendants 

in Georgia murder - other whites, while 

most black defendants murder other 

blacks. (See S.E. 47) The powerful 

influence of the victim's race in 
  

Georgia death-sentencing decisions 

simply overwhelms the less powerful 

race-of-defendant effects. 

Amici Washington Legal Foundation et 

al. also mention "other reputable 

38 

 



  

studies [that] undercut the claims of 

victim—-anchored racial discrimination in 

capital sentencing.” {WLP Br. 18 & 

n.4). They cite a single work, a 

student note reporting a limited 

analysis of data from a four-year period 

collected in another state. Note, 33 

Stan. L.. Rev. 75 (1980). Even this 

study, however, largely replicates 

Baldus's principal findings. The student 

found that "black offenders who killed 

whites were convicted of first degree 

murder about four times more often than 

black offenders who killed blacks," id. 

at 87, and that such defendants received 

death sentences nearly seven times as 

often. Id. While the student asserted 

that "the inference of discrimination 

collapses" when the analysis is 

restricted to felony-related murder 

cases, id.at 88, his data actually 

reveal the following death-sentencing 

39 

 



  

rates 

homicides: 

Black 

White 

Black 

among 

kills 

kills 

kills 

all 

white 

white 

black 

4 

1 

felony-related 

of 61 

of 52 

of 25 

8% 

8% 

4% 

White kills black 0 of 3 0% 

Id. at 89, Table 4. Although the small 

number of felony-related murder cases 

involved precludes a statistically 

significant finding, the pattern of 

results supports Professor Baldus's 

claims. 

Other amici refer the Court to 

Professor Kleck's article for "a recent, 

of of these 

{id.) 

indeed 

objective review some 

studies and conclusions." 

Professor Kleck's article is 

instructive; it concludes that while 

most hypotheses of racial discrimination 

in the criminal justice system are 

overstated, prior research does support 

the following conclusions: 

40 

 



  

(1) The death penalty has not 
generally been imposed for 

  

murder in a fashion 
discriminatory toward blacks, 
except in the South. (emphasis 
added) 

* * * 

(5) There appears to be a 
general pattern of less severe 
punishments of crimes with black 
victims than those with white 
victims, especially in 
connection with the imposition 
of the death penalty. 

Kleck, Life Support for Ailing 
  

Hypotheses: Modes of Summarizing the 
  

Evidence for Racial Discrimination in 
  

Sentencing, 9 Law & Human Behavior 271, 
  

272 (1985). Professor Kleck thus 

directly ratifies the principal results 

reported in this case, and reaffirms 

Professor Baldus's observation that the 

"triangulation" of research findings 

provides one fundamental reason for 

believing "that there are real race 

effects operating in the charging and 

sentencing system in this state." (J.A. 

48). 

41 

 



  

CONCLUSION 
  

The history of the adminis- 

tration of the death penalty in Georgia 

is a history marred by racial discri- 

mination. Over 81% of all those 

executed beween 1930 and 1970 were 

black, (see United States Department of 
  

Justice, Capital Punishment 1930-1970 
  

at 13), just as 6 out of 7 executed in 

the post-Furman period -—— under 

Georgia's revised capital statutes-- 

have been blacks whose victims were 

  

white. (Brief for the Congressional 

Black Caucus, et al., as Amici Curiae, 

at 5.) Although respondent continues to 

insist that Georgia's post-Furman system 

is "functioning as it was intended to 

function," (Resp. Br. 5), Professor 

Baldus has amply demonstrated the 

42 

 



  

existence of strong race-of-victim 

disparities, as well as race-of- 

defendant disparities against blacks 

whose victims are white. This 

discrimination occurs exactly where it 

might have been predicted -- among the 

"midrange" of moderately aggravated 

cases, where petitioner McCleskevy's own 

case is found.1l2 

The Eighth and Fourteenth Amendments 

surely require no more of petitioner 

than this evidence, which renders it 

"more likely than not" that racial 

  

12Respondent quarrels with this 
mid-range analysis -- hypothesizing that 
"different rankings" could be given to 
the cases "depending on what variables 
might be included in a particular 
regression." (Resp. Br. 223. Yet 
predictably, respondent has offered 
no analysis in which Georgia racial 
results are different. Respondent's 
expert, who spent over 1000 hours prior 
to the federal hearing reanalyzing the 
Baldus data (Fed. Tr. 1576) never 

uncovered any defensible model or any 
set of variables that could explain, 
or even diminish significantly, the role 
played by race as a determinant in the 
Georgia capital system. 

43 

 



  

discrimination has been at work in 

Georgia's capital sentencing system 

during the 1973-1979 period. The State's 

demand for still further proof is 

certainly not, at this juncture, a 

legitimate plea for more careful 

examination. It is instead a heedless 

request that Georgia be permitted to 

continue its age-old capital sentencing 

practices —-- despite the facts, despite 

the law, despite the Constitution. 

Amici have contended that it would 

be "repugnant to any decent sense of law 

and justice" for a capital inmate to 

"escape an otherwise valid death 

sentence by invoking the race of his 

victin.” (WLF Br. 2). That's not what 

this case is about. The real issue is 

whether petitioner and other Georgia 

inmates have received their death 
  

sentences in part because of the race of 

their victims. Decency, law, and 

44 

 



  

justice 

against 

condone 

The 

are properly invoked to guard 

such a possibility, not. to 

it. 

Court should reverse the 

judgment of the Court of Appeals. 

Dated: October 3, 1986 

Respectfully submitted, 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, II 

*JOHN CHARLES BOGER 

DEVAL L. PATRICK 

VIVIAN BERGER 

99 Hudson Street 

New York, New York 10013 

{212) 219-1900 

ROBERT H. STROUP 

141 Walton Street 

Atlanta, Georgia 30303 

TIMOTHY K. FORD 
600 Pioneer Building 
Seattle, Washington 98104 

ANTHONY G. AMSTERDAM 
New York University 
School of Law 
40 Washington Square South 
New York, New York 10012 

*Attorney of Record 

ATTOR HEY S Bok ALE 
4 FA g 

BY. Col dal { Ang on 
i