Correspondence - General Vol. 3 of 6 (Redacted)

    LonsT. [=~ 31-9C 

Inmate to appeal ruling 
on state’s death penalty 

The attorney for death row in- 
mate. Warren McCleskey said 
Wednesday he will ask the US. Su- 
preme Court to decide whether un- 
constitutional, racial factors enter 
‘into Sentencing: decisions. made in 
Georgia. . 

On Tuesday, the 11th Us Cir- 
cuit Court of Appeals in Atlanta re- 
jected McCleskey’s claim that his 
death sentence should be overturned 
because of what he argued were ra- 
cially biased Sentencing practices 
across the state. 

~ McCleskey, | who is black, was 
convicted for the 1978 shooting 
death of Atlanta police officer 
Frank Schiatt, who was white. 

. McCleskey offered the most de- 
tailed study yet of capital punish- 
ment cases in Georgia to support 
his claim that the death penalty is 
more frequently given those con- 
victed of killing white people than 
to other murder defendants. The 
study, compiled by University of 
Iowa law professor David Baldus, 
said: that is particularly true when 
the defendant is black. 

In the first Circuit Court ruling 
on a case of its kind, the judges 
here said that even if Baldus’ study 
were correct, it did not prove that 
Georgia juries are racially biased. 
Neither did McCleskey provide evi- 
dence that his own sentence was ra- 
cially moved. the court said in 

! 
iL
L 

: il 

  

- 

  
  

CLAIMS SENTENCING BIASED 
Warren McCleskey 

McCleskey’s attorney, Jack 
Boger, said he will ask the Supreme 
Court to review the racial claim, as 
well as others that McCleskey of- 
fered but the 11th Circuit rejected. 

Among them was the question of 
whether people who oppose the 
death penalty should be excluded 
from juries in capital cases. The 
11th Circuit unanimously said exclu- 
sion is permitted, but the St. Louis- 
based Stn Circuit this week came to 

the opposite conclusion. 
~ — Apn Woslner 

  

    

 



     NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

June 14, 1985 

Michael 0. Finkelstein, Esq. 
Barrett, Smith, Schapiro, Simon & Armstrong 

26 Broadway 

New York, New York 10004 

Dear Michael: 

Enclosed is a preliminary draft of a proposed brief 
amici curiae to be submitted on behalf of our social science 
experts in support of the petition for certiorari in McCleskey 
v. Kemp. At present, we have agreement or near agreement from 

Hang Zeisel, Marvin Wolfgang, Frank Zimring and Dr. Sperlich. 
I am still working on Lawrence Klein. I have sent copies of 
the draft brief, together with the petition, the District and 
Circuit Court opinions and the Baldus report to all of the 
experts. 1 have asked them to convey their suggestions and 
comments to you by next Friday afternoon, June 21. If you 

would prefer, 1 would be glad to collect and collate their 
suggestions for your use. Please just have your secretary 

forward them to me, if that would be preferable. 

  

  

I hesitate sending something as rough and uninspired 
as this draft out under your name, even in preliminary form, 
but I assured these experts that you would soon put your gifted 

hand to this draft. Please let me know what else I can do. Thanks 

for your generous contribution to this effort. Best regards. 

Sincerely, 

  

JCB:agf 
encs, 

Contributions are deductible for U.S. income tar 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

; BARRETT 

ROBERT F. AMBROSE 
MICHAEL F ARMSTRONG 
JOHN J. BARRETT 
DAVID D. BROWN IIT 
WILLIAM C.CLARKE 
WARREN H. COLODNER 
KEVIN J. CURLEY 
MICHAEL O. FINKELSTEIN 
MAHLON M.FRANKHAUSER ** 
MORTON E. GROSZ 
RANDALL D. HOLMES 
CHARLES E. HORD IIT 
RICHARD M. LEDER 
THOMAS C.MERIAM 
LAWRENCE NIRENSTEIN 
GERALD A. NOVACK 
ALFRED T. OGDEN IL 
WILLIAM O. PURCELL 
DONALD S. RICE 
MARTIN F. RICHMAN * 
CARL F. ROGGE, JR. 
JACK B.SALWEN 
DONALD SCHAFIRO 
EDMUND R. SCHROEDER * 
DAVID SIMON 
ARTHUR D. SPORN 
JOANNE W.YOUNG * 

MEMBERS OF THE N.Y. BAR 

* ALSO MEMBER OF THE D.C.BAR 

**MEMBER OF THE D. C.BAR ONLY 

Hon. Alexander L. 

Clerk 

SMITH SCHAPIRO SIMON & ARMSTRONG 

26 BROADWAY 1201 PENNSYLVANIA AVENUE, N. W. 

WASHINGTON, D. C. 20004 

NEW YORK, N.Y. |0004 oth ite 2082 
  

CABLE: ROOTBAR WASHINGTONDC 

(212) 422-8180 CABLE: ROOTBAR 

WU! TELEX: 66420 OREN ROOT 

V. HENRY ROTHSCHILD 2ND 

W. MASON SMITH 

COUNSEL 

June 27, 1985 

Steavas 

Supreme Court of the United States 

One First Street, 
Washington, D.C. 

N.E. 
20543 

Re: Warren McCleskey v. Ralph M. Kemp 

No. 84-6811 
  

Dear Mr. Steavas: 

Enclosed for filing are an original and forty copies 

of a motion for leave to file brief amici curiae and brief 

amici curiae in support of the petition for writ of certiorari 

in the above-captioned case. I am also enclosing a certificate 

of service on all parties with the brief. 

  

  

Thank you very much. 

MOF :mg 

Enclosures 

Sincerely, 

dud 0. 
Michael O. Finkelstein 

   



  

BARRETT SMITH SCHAPIRO SIMON & ARMSTRONG 

ROBERT F. AMBROSE 26 BROADWAY 1201 PENNSYLVANIA AVENUE, N. W. 

MICHAEL F, ARMSTRONG 
JOHN J. BARRETT 

WASHINGTON, D. C. 20004 
NEW YORK, N.Y. 10004 

DAVID D. BROWN IIT (202) 393-5024 

WILLIAM C.CLARKE 

WARREN H. COLODNER 

  
CABLE: ROOTBAR WASHINGTONDC 

(212) 422-8180 CABLE: ROOTBAR 
KEVIN J. CURLEY 

MICHAEL O. FINKELSTEIN WU! TELEX: 66420 OREN ROOT 

MAHLON M.FRANKHAUSER ** V. HENRY ROTHSCHILD 2ND 

MORTON E. GROSZ W. MASON SMITH 

RANDALL D. HOLMES COUNSEL 

CHARLES E. HORD IIT 
RICHARD M. LEDER 
THOMAS C.MERIAM 
LAWRENCE NIRENSTEIN 
GERALD A. NOVACK 
ALFRED T. OGDEN II 
WILLIAM O. PURCELL 
DONALD S. RICE 
MARTIN F. RICHMAN * 
CARL F. ROGGE, JR- 
JACK B.SALWEN 
DONALD SCHAPIRO June 27, 1985 

EDMUND R. S 
DAVID SIMON 

CHROEDER * 

ARTHUR D. SPORN 
JOANNE W.YOUNG * 

MEMBERS OF THE N.Y. BAR 

* ALSO MEMBER OF THE D.C.BAR 

**MEMBER OF THE D.C.BAR ONLY 

Hon. Alexander L. Steavas 
Clerk 

Supreme Court of the United States 
One First Street, N.E. 
Washington, D.C. 20543 

Re: Warren McCleskey v. Ralph M. Kemp 

No. 84-6811 
  

Dear Mr. Steavas: ; 

Enclosed for filing are an original and forty copies 

of a motion for leave to file brief amici curiae and brief 

amici curiae in support of the petition for writ of certiorari 

in the above-captioned case. I am also enclosing a certificate 

of service on all parties with the brief. 

  

  

Thank you very much. 

Sincerely, 

Wedd 0. fuskeb/=—. 
Michael 0. Finkelstein MOF : mg 

Enclosures 

 



     NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense und 99 Hudson Street, New York, N.Y. 10013¢(212) 219-1900 

  

BY HAND 

June 26, 1985 

Mr. Bob Rappaport 

Bar Press 

132 Lafayette Street 
New York, New York 

Dear Bob: 

Enclosed is the proof of the 

cover page in McCleskey v. Kemp. The 
  

remainder of the amicus brief will be 

in your hands by noon tomorrow. 

Best regards. 

Sincerely, 

ini Boger 

Contributions are deductible for U.S. income tar 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



     NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

June 18, 1985 

Julian Epstein, Esq. 
Office of Hon. John Conyers, Jr. 
2313 Rayburn House Office Building 

Washington, D. C. 20515 

Warren McCleskey v. Walter D. Zant, 
No. 84-6811 
  

Dear Julian: 

Enclosed are two copies of the first draft of 

a brief amicus curiae for possible submission by the Black 
  

Legislative Caucus in support of Warren McCleskey's petition 

for certiorari. Absolutely everything in the draft is open 

for suggestions, revisions, deletions, etc. The only specific 

additional material we will need for sure is the description 

of amicus on page two of the motion. I will be available 

later this week and most of next week to field any changes, 

run them through our wordprocessor, and have a copy ready for 

printing. It might be best to have the printing done in 

D.C., but if that proves inconvenient, I can make arrangements 

for printing here in New York. Our filing deadline is next 

Friday, June 28th. 

Let me know what else we can do from here. Thanks 

Contributions are deductible for U.S. income 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



Julian Epstein, Esq. 
June 18, 1985 
Page Two 

for all you have done for us already on this issue. 

Best regards. 

Sincerely, 



    
  

  

 
 

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UNIVERSITY OF CALIFORNIA, BERKELEY ··••••••••••·· 

BERKELEY • DA VIS • IRVINE • LOS ANGELES • RIVERSIDE • SAN DIEGO • SAN FRANCISCO 
-------------------------

( ) SANTA BARBARA • SANTA CRUZ 

DEPARTMENT OF POLITICAL SCIENCE 

(415) 642-6323 

John Charles Boger, Esq, 
NAACP Legal Defense and Educational Fund 
99 Hudson Street 
New York, N,Y. 10013 

Dear Mr. Boger, 

............ 

BERKELEY, CALIFORNIA 94720 

May 29, 1985 

Thank you for sending me the Mccleskey materials. I have studied them, 
giving particular attention to the Baldus report. I agree that the Baldus 
report is a sophisticated and solid piece of work. Neither District nor Circuit 
Court have adequately appreciated its findings and its methodological strengths. 
I shall be happy to add my signature to an amicus curiae brief to be sul:Xl\itted 
to the United States Supreme Ooart. I assume that you will circulate a draft 
for approval. 

I have no difficulty with the language and stateaents found in the Baldus 
report and the brief to the Circuit Court. My only reservation regards the 
issue of "an inference of intentional discrimination" from statistical analysis 
(e.g., your letter of May i1, 1985, P• 2). I do not believe that intentions can 
be inferred from statistics, regardless of the size of disparities. I think that, 
at most, statistical findings (significance) allow the inference of non-randomness. 
Causal attributions require a true experimental design. 

Earlier today I talked to Mr. Finkelstein. I advised hill of my willingness 
to participate and Gf the above reservation. 

For your use 1n submitting the aminus curiae brief, I enclose a copy of my 
curriculum vitae, 

Encl. 

Sincerely yours, 
\\ 

•, �
,.J 

� . \ ;1� � 
Dr, Peter W, Sp

l
ch 

Professor 



          

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013¢ (212) 219-1900 

May 23,1985 

Michael O. Finkelstein, Esq. 
Barrett Smith Schapiro Simon & Armstrong 

26 Broadway 
New York, New York 10004 

Dear Michael: 

Enclosed are copies of my transmittal 

letters to our social scientific luminaries which 
were sent out, with the noted enclosures, by 

Federal Express on Friday, May 17th. 

Thanks for contacting these folk during a 

week that 1 realize was an extremely busy one for 

you. 

I'd) talk with you soon. Best 

; Sincerely, 

  
Contributions are deductible for U.S. income tar 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board. program, stati, office and budget 

 



  

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

und 99 Hudson Street, New York, N.Y. 10013¢(212) 219-1900 

     
egal efense 

May 17, 1985 

Dr. Stuart S. Nagel 

1720 Park Haven Drive 
Champaign, Illinois 61810 

Dear Dr. Nagel: 

At Michael Finkelstein's suggestion, I am enclosing copies 
of the judicial opinions rendered by the United States Court of 
Appeals for the Eleventh Circuit in McCleskey v. Kemp, 753 F.2d 
877 (11th Cir. 1985) (en banc) and by the United States District 
Court for the Northern District of Georgia, Atlanta Division, in 
Mclleskey v, Zant, 580 F., Supp. 338 (N.D. Ga. 1984). Both of 
these opinions address and resolve adversely constitutional 
claims, presented by a Georgia death-sentenced inmate named 
Warren McCleskey, that the post-1972 capital statutes of the 
State of Georgia have been applied in an arbitrary and racially 
discriminatory manner. The factual basis for these allegations 
derives from two overlapping studies conducted by Professor David 
Baldus of the University of Iowa School of Law. I am also 
enclosing a preliminary report by Professor Baldus which outlines 
his findings. 

  

  

Michael Finkelstein has indicated that you might be willing 
to review the opinions and Baldus' report, as well as the brief 
submitted by Mr. McClesky to the Eleventh Circuit, for possible 
participation as an amicus curiae in a brief to be submitted to 
the Supreme Court of the United States in June, 1985. I am 
counsel for Mr. McCleskey, and I would of course welcome your 
participation in this case. The Baldus studies comprise the most 
methodolically sophisticated and comprehensive effort ever 
undertaken to examine the actual application of capital punish- 
ment statutes. Professor Baldus reports findings of racial 
disparities, especially by the race of the victim, that are 
highly statistically significant, and that persist irrespective 
of the model he selects or the analystic methods he employees. 

  

The federal courts have nevertheless rejected his work on a 
variety of grounds, none of which seem to me persuasive. The 
District Court, as you will see, faults his studies on a variety 
of methodological points and displays hostility towards any 
method of multivariate analysis other than cross-tabuler methods. 

Contributions are deductible for U.S. income 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

May 17, 1985 
Dr. Stuart S. Nagel 
Page 2 oh 

Se 

Our brief to the Eleventh Circuit, a copy of which is also enclosed, engages in a point-by-point discussion of the District Court's analysis. The Court of Appeals purports to assume the validity of the Baldus studies, but questions their value -- or indeed, the value of any empirical social scientific evidence -- in proving racial disparities sufficient to allow an inference of intentional discrimination. The Court of Appeals' deep skepti- cism about the worth of social scientific methods, moreover, as well as the Court's apparent misunderstanding of several princi- 
pal features of statistical analysis, might well warrant an amicus curiae brief on behalf of academicians of your stature, drafted by Michael Finkelstein, urging the Supreme Court to review the opinion of the Eleventh Circuit. 

  

Naturally, as counsel for Warren McCleskey, I am interested in a review of the case on his behalf, but I also believe that ‘the treatment afforded Baldus' evidence by the courts raises important questions about the value of social scientific evidence that transcend this case, or the death penalty issue generally. Certainly within the Eleventh Circuit, where McCleskey will be precedent if not reviewed, statistical proof in a variety of legal contexts will be made far more difficult (indefensibly so I believe) by that opinion. The broader implications of the McCleskey opinion, in sum, seem to justify Supreme Court review, and I am grateful for your willingness to consider participation in an amicus brief. 

  

  

One word of explanation prior to your review. Professor Baldus' report is a condensation of somewhat broader and more comprehensive presentation made in 1983 to the District Court. It was written, at our request, with an eye toward educating the District Court on the basic principles of multivariete analysis and statistical inference. You may find, therefore, that the initial chapters are far more elementary than would be warranted in a report prepared initially for scholarly review. Please understand that Professor Baldus was complying with our requests in this mode of presentation, which will be substantially altered when he publishes the report in final form. 

Lastly I have included a number of additional exhibits and a brief report from Professor Baldus' collaborator, Dr. George Woodworth, at the end of report. These items comprise several revised analyses prompted by the 1983 hearing as well as Dr. Woodworth's diagnostics presented during the hearing. 

 



oe
, 

\ 1 

™ 

  

May 17, 1985 aaa 
Dr. Stuart S. Nagel 4 

Page 3 

Once again, thank you for undertaking this review, and best 
regards. 

Sincerely, 

TP Charles Boger 

JCB/ac : 
Enclosures 
cc: Michael O. Finkelstein, Esq. 

 



      
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street, New York, N.Y. 10013¢(212) 219-1900 

  

egal efense und 

  

May 17, 1985 

Dr. Peter W. Sperlich 
Political Science Department 
University of California At Lh 
Berkeley, California 94720 Srl 

Dear Dr. Sperlich: 

At Michael Finkelstein's suggestion, I am enclosing copies 
of the judicial opinions rendered by the United States Court of 
Appeals for the Eleventh Circuit in McCleskey v. Kemp, 753 F.2d 
877 (11th Cir. 1985) (en banc) and by the United States District 
Court for the Northern District of Georgia, Atlanta Division, in 
McCleskey v. 2ant, 580 F. Supp. 338 (N.D. Ga. 1984). Both of 

these opinions address and resolve adversely constitutional 
claims, presented by a Georgia death-sentenced inmate named 
Warren McCleskey, that the post-1972 capital statutes of the 
State of Georgia have been applied in an arbitrary and racially 
discriminatory manner. The factual basis for these allegations 
derives from two overlapping studies conducted by Professor David 
Baldus of the University of Iowa School of Law. I am also 
enclosing a preliminary report by Professor Baldus which outlines 
his findings. 

  

  

Michael Finkelstein has indicated that you might be willing 
to review the opinions and Baldus' report, as well as the brief 
submitted by Mr. McClesky to the Eleventh Circuit, for possible 
participation as an amicus curiae in a brief to be submitted to 
the Supreme Court of the United States in June, 1985. I am 
counsel for Mr. McCleskey, and I would of course welcome your 
participation in this case. The Baldus studies comprise the most 
methodolically sophisticated and comprehensive effort ever 
undertaken to examine the actual application of capital punish- 
ment statutes. Professor Baldus reports findings of racial 
disparities, especially by the race of the victim, that are 
highly statistically significant, and that persist irrespective 
of the model he selects or the analystic methods he employees. 

  

The federal courts have nevertheless rejected his work on a 
variety of grounds, none of which seem to me persuasive. The 
District Court, as you will see, faults his studies on a variety 
of methodological points and displays hostility towards any 
method of multivariate analysis other than cross-tabuler methods. 

Contributions are deductible for U.S. income tar 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

May 17, 1985 
Dr. Peter W. Sperlien 
Page 2 

Our brief to the Eleventh Circuit, a copy of which is also 
enclosed, engages in a point-by-point discussion of the District 
Court's analysis. The Court of Appeals purports to assume the 
validity of the Baldus studies, but questions their value -- or 
indeed, the value of any empirical social scientific evidence -- 
in proving racial disparities sufficient to allow an inference of 
intentional discrimination. The Court of Appeals' deep skepti- 
cism about the worth of social scientific methods, moreover, as 
well as the Court's apparent misunderstanding of several princi- 
pal features of statistical analysis, might well warrant an 
amicus curiae brief on behalf of academicians of your stature, 
drafted by Michael Finkelstein, urging the Supreme Court to 
review the opinion of the Eleventh Circuit. 

  

Naturally, as counsel for Warren McCleskey, I am interested 
in a review of the case on his behalf, but I also believe that 
the treatment afforded Baldus' evidence by the courts raises 
important questions about the value of social scientific evidence 
that transcend this case, or the death penalty issue generally. 
Certainly within the Eleventh Circuit, where McCleskey will be 
precedent if not reviewed, statistical proof in a variety of 
legal contexts will be made far more difficult (indefensibly so I 
believe) by that opinion. The broader implications of the 
McCleskey opinion, in sum, seem to justify Supreme Court review, 
and I am grateful for your willingness to consider participation 
in an amicus brief. 

  

  

One word of explanation prior to your review. Professor 
Baldus' report is a condensation of somewhat broader and more 
comprehensive presentation made in 1983 to the District Court. It 
was written, at our request, with an eye toward educating the 
District Court on the basic principles of multivariete analysis 
and statistical inference. You may find, therefore, that the 
initial chapters are far more elementary than would be warranted 
in a report prepared initially for scholarly review. Please 
understand that Professor Baldus was complying with our requests 
in this mode of presentation, which will be substantially altered 
when he publishes the report in final form. 

Lastly I have included a number of additional exhibits and a 
brief report from Professor Baldus' collaborator, Dr. George 
Woodworth, at the end of report. These items comprise several 
revised analyses prompted by the 1983 hearing as well as Dr. 
Woodworth's diagnostics presented during the hearing. 

 



  

May 17, 1985 
Dr. Peter W. Sperlich 
Page 3 

Once again, thank you for undertaking this review, and best 
regards. 

: ge 
Sincerely, 

hn Charles Boger 

JCB/ac 
Enclosures 

cc: Michael O. Finkelstein, Esq. 

 



  

  

BOARD OF DIRECTORS 

David Carliner 

CHAIR 

Robert H. Kapp 

VICE-CHAIR 

Stuart Lemle 

TREASURER 

Charles E.M. Kolb 

SECRETARY 

Millard W. Arnold 

Hodding Carter, III 

Nancy Folger 

Robert K. Goldman 

(Rev.) J. Bryan Hehir 

Robert Herzstein 

Joan McEntee 

Burt Neuborne 

Roberts B. Owen 

Steven M. Schneebaum 

Mark L. Schneider 

ADVISORY COUNCIL 

Richard B. Bilder 

Theo C. van Boven 

Roberta Cohen 

Martin Ennals 

Thomas M. Franck 

Hurst Hannum 

Monroe Leigh 

Richard B. Lillich 

Bert B. Lockwood, Jr. 

Fali S. Nariman 

Louis Pettitti 

Charles Runyon 

EXECUTIVE DIRECTOK 

Amy Young 

ELECTION OBSERVER 
PROJECT DIRECTOR 

Larry Garber 

UN REPRESENTATIVES 

New York 

Richard N. Dean 

Grant A. Hanessian 

  

INTERNATIONAL HUMAN RIGHTS LAW GROUP 
1346 Connecticut Ave., N.W. 

Suite 502 

Washington, D.C. 20036 

  

(202) 659-5023 

Cablegram: INTLAWGRP 

November 28, 1984 

Mr. Julius Chambers 

NAACP Legal Defense Fund 

806 15th Street, NW 

Suite 940 

Washington, DC 20006 

Dear Mr. Chambers: 

As you may recall, the Law Group in 1980 filed a 

communication with the Inter-American Commission on Human 

Rights alleging that the U.S. discriminated against death row 

inmates by imposing capital punishment according to the race 

of the victim. After four years of having this case under 

submission, the Inter-American Commission recently issued a 

resolution declaring the Law Group's case inadmissible. The 

basis for this decision is that the procedural requirements 

set forth in the Commission’s regulations were not met with 

sufficient specificity. For example, the Commission 

characterized the Law Group's allegations and data as being 

analogous to a sociological study, rather than presenting 

grounds for relief, and also found that information on 

specific individuals was lacking. 

The Law Group believes that the Commission’s resolution in 

no way diminishes the substantive merits of the case and plans 

to issue a request for reconsideration or an appeal shortly. 

In this regard, the Law Group would appreciate any 

supplemental or additional information of which you are aware 

so that we may compile as detailed and complete a record as 

possible. If you do have information, please notify us at 

your earliest convenience as the submission is due by 

mid-December. 

Although the Commission’s resolution denied admissibility, 

which will delay the ultimate decision on the merits, it did 

contain an encouraging and important statement concerning the 

death penalty. As you will note in the attached copy, the 

Commission urged the U.S. to exhort states allowing the 

imposition of capital punishment to reconsider their position 

and to commute all pending death sentences until such 

consideration is completed. 

The International Human Rights Law Group is a non-governmental 

organization having consulative status with the United Nations (ECOSOC).



he, 

  

Again, the Law Group would welcome any information on 

recent cases, statistics or studies regarding the death 
penalty and its application. Thank you for your continued 
interest in this case. 

Sincerely yours, 

Amy Y/ou 

Executive irector 

Enclosure 

 



ORGANIZATION OF AMERICAN STATES 

\ INTER - AMERICAN COMMISSION ON HUMAN RIGHTS GS | | D ) | & ( 

110 { 5 198k 

  

  

«- 
RECEIVED 

OEA/Ser.L/V/II.63 
Doc. 17 

3 October 1984 

Original: Spanish 

63th Session 

RESOLUTION 10/84 
CASE 7465 

UNITED STATES 

Approbed by the Commission at its 831la session, 

held October 3, 1984 

 



  

RESOLUTION N° 10/84 
CASE No. 7465 (UNITED STATES) 

October 3, 1984 

BACKGROUND: 

7 On August 6, 1980, the nongovernmental entity called the 

International Human Rights Law Group of Washington, District of Columbia, 

United States of America, in an extensive communication, lodged a 

complaint with the Inter-American Commission on Human Rights against the 

United States of America for violation of Articles II, XVII and XXVI of 

the American Declaration of the Rights and Duties of Man; 

2. The petitioner presented the complaint, "specifically on behalf 

of more than 350 prisoners who are awaiting execution in the states of 

Florida, Georgia and Texas," and it supported the complaint with the 

argument that statistics reveal dramatic disparities in convictions based 

on the racial origins of the victims: defendants convicted of killing 

white people are sentenced to death in vastly greater proportion than 

defendants convicted of killing blacks; 

3. Clarifying and further stressing its complaint, the petitioner 

repeats its arguments on page 9 of its statement as follows: "This 

complaint 1s addressed to the disparities in death sentencing due to the 

race of the victim of the alleged murderer. Specifically, in each state 

complained of here, a defendant convicted of murdering a white person 1s 

immensely more likely to be sentenced to death than one convicted of 

murdering a black person; 

 



  

  

  

Rg 2 EE 

  

- 
- —— - rms em— a a 

4. "What the figures and statistics presented in this complaint 
  reveal" according to the petitioner, "is that death sentencing in Florida, 

Georgia, and Texas is carried out in a racially biased and iaesual aeniez 

which values the lives of whites greater than those of blacks; and the 

death penalty is far more actively sought, recommended, affirmed and 

imposed where the defendant is accused of killing a white person;" 

5. Based on the facts and statistics presented with its statement, 

the petitioning entity asks the Commission: 

1. To reach the conclusion that due to discrimination in 

application of the death penalty, the United States of 

America has violated Articles II, XVII, and XXVI of 

the American Declaration of the Rights and Duties of 

Man; 

2 To recommend a moratorium on executions in the United 

States, whether (the cases) are under state or federal 

jurisdiction, as long as the present case is before 

the Inter-American Commission on, Human Rights; 

3. To conduct an on-site investigation in the states of 

Florida, Georgia and Texas to determine the truth and 

merit of the accusations set forth in this complaint; 

6. On August 12, 1980, the Secretariat of the Commission 

transmitted the essential parts of the complaint to the United States 

Government, pointing out that so doing did not constitute a decision 

regarding the admissibility of the complaint and asking the government in 

 



  

reference to convey its answer to the Commission together with information 

that would enable the Commission to determine whether domestic remedies 

had been exhausted in the case in question; 

Zo The Commission's request to the government was repeated in a 

note dated March 12, 1981, in response to an express request made by the 

petitioner in view of the fact that the government had not answered the 

previous communication. This request informed the government that, 

lacking its response, the Commission could presume the facts reported in 

the petition to be true, in accordance with Article 39 of its Regulations; 

8. On June 16, 1981, the Delegation of the United States to the 

Organization of American States presented to the Commission a memorandum 

prepared in the Department of State as that government's answer to the 

complaint which had been transmitted to it as an attachment to the note in 

reference dated August 16, 1980. That memorandum, without mentioning 

other facts or matters, analyzes extensively the matter of inadmissibility 

of the petition due to the lack of exhaustion of domestic remedies, and in 

conclusion states that "consequently, the United States believes that the 

petition presented by the International Human Rights Law Group is not 

admissible for consideration by the Commission"; 

9. After the memorandum in reference was transmitted to the 

petitioner entity on November 5, 1981, the latter presented a written 

reply observing that the government had not attempted to refute any of the 

substantive reasons for the complaint and had limited itself to attempting 

to show, unsuccessfully in the opinion of the petitioner, according to the 

 



  

arguments the government presents, that the Commission could not take up 

the case because the interested parties had not exhausted the remedies to 

which they are entitled under domestic law; 

10. On January 7, 1982, the United States Government requested an 

additional 30 day period to answer the petitioner's arguments; and with 

the Commission in recess and with the additional period appearing to be 

under way, on February 1, 1982, the petitioner presented new "material to 

the Commission in support of its thesis, which was transmitted to the 

government with a note dated February 17, 1982; 

11. The government did not comment on the new "material" provided 

with the note dated February 17, 1982, but in view of a new presentation 

by the petitioner on January 27, 1983, which was transmitted to it the 

following March 21, the United States Government presented an extensive 

note dated October 5, 1983. There it set forth the '"doubts that the 

petition states a claim falling within the competence of the Commission, 

as it does not appear to allege a denial of any rights set forth in the 

American Declaration of the Rights and Duties of Man'; and the government 

duly confirms the official position that 'the petition is not admissible 

(for lack of exhaustion of domestic remedies), for which reason the United 

States declines to comment at this time on the merits of the complaint"; 

WHEREAS: 

1. In a communication dated October 5, 1983, the United States 

Government expressed its definite opposition to having the Inter-American 

 



  

- 5 - 

Commission take cognizance of and apply the regulatory procedure to the 

complaint by the petitioning entity because the documents of August 1980 

and January 27, 1983, do not allege violations of the rights referred to 

in Article 2 of the Statute to the detriment of specific persons, 

indicating date, circumstances and responsible official or authority, but 

rather, general facts and statistics are set forth in order to ask the 

Commission to carry out an investigation in the states of Florida, Georgia 

and Texas and to confirm the truth of the charges that judges and juries 

in these states proceed in a discriminatory manner, depending on the race 

of the victims, in sentencing defendants convicted of murder to the death 

penalty, and at the same time, suspension of pending executions is 

requested while the investigation is being carried out, which the 

Government considers not to be within the Commission's competence; 

2. The defense based, on the Commission's incompetence, having been 

so presented, and the legal possibility of accepting petitions 1 and 2 of 

the aforementioned communication of August 1980 having been denied by the 

state against which the complaint is made, 1t was appropriate before 

taking up the petitions in reference to analyze the various aspects and 

particulars of this petition and the one dated January 27, 1983. It was 

decided that the observations of the petitioner concerning the facts or 

assumptions arising from the statistical analysis of the death sentences, 

upon relating it to the racial characteristics of the victims and 

offenders, could constitute basic factors for a sociological study on 

possible situations which might influence the conduct and completion of 

 



  

criminal actions filed for the murder of a human being, but not for 

intervention by this Commission in compliance with its statutory duties in 

the framework of the regulations and other . provisions of the 

Inter-American system; 

3. The petitions of August 6, 1980 and January 27, 1983 do not 

contain the specifications indicated in the paragraph of Article 29 of the 

Commission's Regulations which indicates the requirements for petitioas; 

and 

4. Moreover, the documents appended to the original petition 

indicate that all of the sentences in reference that may have been 

influenced by racial considerations were handed down long before the six 

months referred to in Article 35 of the Regulations began; 

THEREFORE: 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS. 

RESOLVES: 

1, In accordance with Attisie 38 of its Regulations, to declare 

inadmissible the complaint made by the International Human Rights Law 

Group against the United States of America in its documents dated August 

6, 1980, and January 27, 1983; 

2. To abstain from rendering a judgment on the defense of 

inadmissibility for lack of exhaustion of domestic remedies filed by the 

United States Government, as this is unnecessary; 

3. Urge the Government of the United States, in keeping with the 

spirit of Article 4 of the American Convention on Human Rights, whose 

approval was recommended to the Senate by the Executive, and following the 

universal tendency towards the suppression of the death penalty, to exhort 

 



  

‘those states of the Union which continue to apply capital punishment to 

consider its abolition and to adopt in the meantime a policy of 

commutation of pending death sentences. 

[8 To convey this resolution to the parties concerned and to file 

the record: 

CDH/3033 

 



  

STANFORD LAW SCHOOL 

June 14, 1985 

John C. Boger and Richard Brody 
NAACP Legal Defense Fund 

Dear Jack and Rich: 

Enclosed is a brief statement about discrimination in the 
death penalty, for possible use in the Furman Day festivities. 
Do whatever you will with it. 

On other matters, I just read the McCleskey cert. petition. 
It's terrific! Also, I am at the moment in the process of putting 
together what I think of (euphamistically) as the "Harris amicus 
brief writing kit." I should be able to send it out next Tuesday 
or Wednesday. 

  

I'm enclosing a copy of my UC Davis Law Review article on the 
McCleskey case, and of the page proofs of the Gross & Mauro 
article on discrimination in the death penalty. (One page -- 33 -- 
is unaccountably missing. I've inserted a pieced together version 
of that page from the galley proofs.) These articles might possibly 
be useful for you in putting together things for Furman Day. 

  

Let's talk next week wrap up any problems that may be connected 
with these things before I leave on June 21st. See you in Airlie 

in any event. 

7 
ltt yours, 

7 

Samuel R. Gross 

All the best, 

   

P C.- Sen vio +S GA d [73 dd Lonel Lonclsenes a 4 ls 

Crown Quadrangle Stanford University Stanford California 94305 

 



   



        
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

Jurie 19, 1885 

Ralph Steinhardt, Esq. 
2550 M:Street, N.W. 

Washington, D.C. 20037 

Dear Ralph: 

I was delighted to learn that the International 
Human Rights Law Group will participate as amicus curiae 

in support of Warren McCleskey's petition for certiorari. 
  

I have spoken with Sam Gross at Stanford Law 

School, who would be happy to have you quote from, or 
cite to, his forthcoming article in the University of 
California, Davis, law review which discusses the McCleskey 

opinion and makes extensive references to the Baldus 

studies. 1 am enclosing a draft of that article. The 
introductory page includes a description of the Baldus 
studies and the Eleventh Circuit's opinion that makes 
just the point you and I were speaking about today. 

  

If you decide to refer to this article, vou 
should give Sam a call on Thursday, June 20th, to get 
the exact citation and the final revised wording. Sam 

is off on a two-week vacation after Thursday, and he 

plans to spend all that day revising the article. 

Let me know if we at LDF can help out in 
any way. Best regards. 

Sincerely, 

¥ Charles Boger 

Contributions are deductible for U.S. income 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



    
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal 

June 14, 1985 

Dr. Marvin Wolfgang 
4106 Locust Street 
Philadelphia, Pennsylvania 19104 

Dear Professor Wolfgang: 

Thank you very much for agreeing to review the 
enclosed materials and consider participation as an amicus 

curiae in the brief to be submitted by Michael Finkelstein 
supporting the petition for certiorari in the McCleskey v. 
Kemp case. I have included copies of the petition for 
certiorari, which was filed on May 28, 1985, the appendicies 

to the petition, which include the District Court and Circuit 
Court opinions, and a very rough preliminary draft of a brief 
amici curiae, which is being circulated to Michael Finkelstein 
for his undoubtedly gifted revisions and editing, and to the 
expert amici for their welcomed suggestions and comments. Also 

included among the appendicies are copies of factual statements 
excerpted from our District Court and Court of Appeals' briefs. 
These provide the fullest statement of our factual contentions. 
In addition, I have included a copy of Baldus' preliminary 

  

  

report. (I should caution that the report was specifically 

drafted by Baldus, at our request, to educate the District 
Court on basic statistics principles. The final version 
will obviously assume a form more appropriate for a scholarly 

audience.) 

As I indicated to you when we spoke on Thursday, 

June 13, we believe the brief amici curiae may prove extremely 

influential in determining whether the Supreme Court agrees to 
review this case, and we think that if review is denied, the 

practical impact will be devastating for further research on 
racial discrimination in capital cases in the foreseeable 

future. It is for this reason we so welcome your contribution 

to this case. 

  

Our timetable requires the filing of this brief by 
Friday, June 28, 1985. I suggest that, 1f possible, you convey 

your suggestions and comments to Michael Finkelstein by Friday 

afternoon, June 21, at the latest. If that schedule appears 

too tight, please let Michael or myself know by next Wednesday 
or. Thursday, SO that we can revise our schedule accordingly. 

Contributions are deductible for U.S. income 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. 

 



  

Dr. Marvin Wolfgang 
Page 2. 

June 14, 1985 

Once again, thank you very much for your 

Sincerely, 

ch Bry— 
hn Charles Boger 

CC: Michael O. Finkelstein, Esq. 

JCB:agf 

  

help.



     NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

June 14, 1985 

Dr. Frank Zimring | 

Boalt Hall 
Earl Warren Legal Institute 
University of California 
Berkeley, California 94720 

Dear Professor Zimring: 

I understand from Eric Multhaup that you have 
agreed to review materials connected with the McCleskey v. 
Kemp petition for certiorari in order to determine whether 
you will participate as an amicus curiae in a brief to be 
filed in support of that petition for certiorari by Michael 
Finkelstein. I am enclosing copies of the McCleskey v. Kemp 

petition, the appendicies to that petition which include the 
District Court and Court of Appeals opinions, a copy of 
Baldus' preliminary report, and a very preliminary draft of 

a brief amici curiae, which is being circulated to Michael 
Finkelstein for his editing and revisions, and to a small | 

group of experts, among them yourself, whom we hope will 
participate as amici. | 

  

  

  

  

The importance of the amici curiae brief, in our 
judgment, is quite great. If the Supreme Court permits the 
opinion of the Court of Appeals to stand unreviewed, it may 
well jeopardize future research into racial discrimination 
in capital sentencing, and will certainly dampen further 
court review of such evidence. It is for this reason that 

we are particularly grateful to you for considering partici- 
pation in this effort. 

  

As Eric may have mentioned, our timetable is tight. 
The brief amici curiae is due at the Supreme Court on Friday, 

June 28, 1985. Therefore, Michael Finkelstein and I would be 

grateful if you could forward your suggestions and comments 
on the draft brief to Michael by Friday, June 2lst, if possible. 

  

Again, let me thank you for your generosity in 
reviewing this material. Please let me know if I can be of 
further help. 

Sincerely, 

n Charles Boger 
JCB:agf 

Contributions are deductible for U.S. income 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. 

 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal 

  

June 14, 1985 

Dr. Peter W. Sperlich 
Department of Political Science 
University of California 
Berkeley, California 94720 

Dear Dr. Sperlich: 

Thank you very much for agreeing to participate 
as an amicus curiae in the brief to be submitted to the 
Supreme Court in support of the petition for certiorari 
in McCleskey v. Kemp. I am circulating a very preliminary 
draft of that brief amici curiae. It has not yet received 
the undoubtedly gifted revisions and editing that Michael 
Finkelstein will bring to it, nor the welcome suggestions 

and comments from yourself and the other experts who will 
participate as amici. 

  

  

  

Our timetable requires the filing of this brief 
by Friday, June 28, 1985. 1 suggest that, if possible, you 
convey your suggestions and comments to Michael Finkelstein 
by Friday afternoon, June 21, at the latest. If that schedule ! 
appears too tight, please let Michael or myself know by next 
Wednesday or Thursday, so that we can revise our schedule 
accordingly. 

Once again, I am grateful for your participation 
in this effort. Best regards. 

Sincerely, 

n Charles Boger 

JCB:agf 

CC: “Michael O., Finkelstein, Esq. 

Contributions are deductible for U.S. income 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. 

 



 
 

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TIMOTHY K. FORD 

COUNSELLOR AT LAW, PS. 

600 PIONEER BUILDING 
SEATTLE, WASHINGTON 98104 
206/622-5942 

  

  

TIMOTHY K. FORD 
RITA J. GRIFFITH 

June 3, 1985 

Jack Boger 
NAACP Legal Defense Fund 
99 Hudson Street, 16th Floor 

New York, NY 10013 

Dear Jack: 

McCleskey looks fine, and worthy of the historical company 
it invokes. I am proud to have contributed the "{sic]" to the 
last line of page 31. 

  

Sincerely, 

Timothy K. Ford 

TKF:1s 

 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal 

  

May 17, 1985 

Dr. Brian Forst 
The Police Foundation 
Suite 200 
1001 K Street, N.W. 

Washington, D.C. 20037 

Dear Dr. Forst: 

At Michael Finkelstein's suggestion, I am enclosing copies 
of the judicial opinions rendered by the United States Court of 
Appeals for the Eleventh Circuit in McCleskey v. Kemp, 753 F.2d 
877 (11th Cir. 1985) (en banc) and by the United States District 
Court for the Northern District of Georgia, Atlanta Division, in 
McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984). Both of 
these opinions address and resolve adversely constitutional 
claims, presented by a Georgia death-sentenced inmate named 
Warren McCleskey, that the post-1972 capital statutes of the 
State of Georgia have been applied in an arbitrary and racially 
discriminatory manner. The factual basis for these allegations 
derives from two overlapping studies conducted by Professor David 
Baldus of the University of Iowa School of Law. I am also 
enclosing a preliminary report by Professor Baldus which outlines 

his findings. 

  

  

Michael Finkelstein has indicated that you might be willing 
to review the opinions and Baldus' report, as well as the brief 
submitted by Mr. McClesky to the Eleventh Circuit, for possible 
participation as an amicus curiae in a brief to be submitted to 
the Supreme Court of the United States in June, 1985. I am 
counsel for Mr. McCleskey, and I would of course welcome your 
participation in this case. The Baldus studies comprise the most 
methodolically sophisticated and comprehensive effort ever 
undertaken to examine the actual application of capital punish- 
ment statutes. Professor Baldus reports findings of racial 
disparities, especially by the race of the victim, that are 
highly statistically significant, and that persist irrespective 
of the model he selects or the analystic methods he employees. 

  

The federal courts have nevertheless rejected his work on a 
variety of grounds, none of which seem to me persuasive. The 
District Court, as you will see, faults his studies on a variety 
of methodological points and displays hostility towards any 
method of multivariate analysis other than cross-tabuler methods. 

Contributions are deductible for U.S. income 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

May 17, 1985 
Dr. Brian Forst 

Page 2 

Our brief to the Eleventh Circuit, a copy of which is also 
enclosed, engages in a point-by-point discussion of the District 
Court's analysis. The Court of Appeals purports to assume the 
validity of the Baldus studies, but questions their value -- or 
indeed, the value of any empirical social scientific evidence -- 
in proving racial disparities sufficient to allow an inference of 
intentional discrimination. The Court of Appeals' deep skepti- 
cism about the worth of social scientific methods, moreover, as 
well as the Court's apparent misunderstanding of several princi- 
pal features of statistical analysis, might well warrant an 
amicus curiae brief on behalf of academicians of your stature, 
drafted by Michael Finkelstein, urging the Supreme Court to 
review the opinion of the Eleventh Circuit. 

  

Naturally, as counsel for Warren McCleskey, I am interested 
in a review of the case on his behalf, but I also believe that 
the treatment afforded Baldus' evidence by the courts raises 
important questions about the value of social scientific evidence 
that transcend this case, or the death penalty issue generally. 
Certainly within the Eleventh Circuit, where McCleskey will be 
precedent if not reviewed, statistical proof in a variety of 
legal contexts will be made far more difficult (indefensibly so I 
believe) by that opinion. The broader implications of the 
McCleskey opinion, in sum, seem to justify Supreme Court review, 
and I am grateful for your willingness to consider participation 
in an amicus brief. 

  

  

One word of explanation prior to your review. Professor 
Baldus' report is a condensation of somewhat broader and more 
comprehensive presentation made in 1983 to the District Court. It 
was written, at our request, with an eye toward educating the 
District Court on the basic principles of multivariete analysis 
and statistical inference. You may find, therefore, that the 
initial chapters are far more elementary than would be warranted 
in a report prepared initially for scholarly review. Please 
understand that Professor Baldus was complying with our requests 
in this mode of presentation, which will be substantially altered 
when he publishes the report in final form. 

Lastly I have included a number of additional exhibits and a 
brief report from Professor Baldus' collaborator, Dr. George 
Woodworth, at the end of report. These items comprise several 
revised analyses prompted by the 1983 hearing as well as Dr. 
Woodworth's diagnostics presented during the hearing. 

 



  

May 17, 1985 
Dr. Forst 

Page 3 

Once again, thank you for undertaking this review, and best 
regards. 

Sincerely, 

ohn Charles Boger 

JCB/ac 
Enclosures 

cc: Michael O. Finkelstein, Esq. 

 



    

egal NA efense und 

May 17, 1985 

Dr. Stuart S. Nagel 
1720 Park Haven Drive 
Champaign, Illinois 61810 

Dear Dr. Nagel: 

At Michael Finkelstein's suggestion, I am enclosing copies 
of the judicial opinions rendered by the United States Court of 
Appeals for the Eleventh Circuit in McCleskey v. Kemp, 753 F.2d 
877 (11th Cir. 1985) (en banc) and by the United States District 
Court for the Northern District of Georgia, Atlanta Division, in 
McCleskey v. Zant, 580 F, Supp. 338 (N.D. Ga. 1984). Both of 
these opinions address and resolve adversely constitutional 
claims, presented by a Georgia death-sentenced inmate named 
Warren McCleskey, that the post-1972 capital statutes of the 
State of Georgia have been applied in an arbitrary and racially 
discriminatory manner. The factual basis for these allegations 
derives from two overlapping studies conducted by Professor David 
Baldus of the University of Iowa School of Law. I am also 
enclosing a preliminary report by Professor Baldus which outlines 
his findings. 

  

  

Michael Finkelstein has indicated that you might be willing 
to review the opinions and Baldus' report, as well as the brief 
submitted by Mr. McClesky to the Eleventh Circuit, for possible 
participation as an amicus curiae in a brief to be submitted to 
the Supreme Court of the United States in June, 1985. I am 
counsel for Mr. McCleskey, and I would of course welcome your 
participation in this case. The Baldus studies comprise the most 
methodolically sophisticated and comprehensive effort ever 
undertaken to examine the actual application of capital punish- 
ment statutes. Professor Baldus reports findings of racial 
disparities, especially by the race of the victim, that are 
highly statistically significant, and that persist irrespective 
of the model he selects or the analystic methods he employees. 

  

The federal courts have nevertheless rejected his work on a 
variety of grounds, none of which seem to me persuasive. The 
District Court, as you will see, faults his studies on a variety 
of methodological points and displays hostility towards any 
method of multivariate analysis other than cross-tabuler methods. 

Contributions are deductible for U.S. income tax purposes 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street, New York, N.Y. 10013 (212) 218-1900 

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. 

 



  

May 17, 1985 
Dr. Stuart S. Nagel 
Page 2 

Our brief to the Eleventh Circuit, a copy of which is also enclosed, engages in a point-by-point discussion of the District Court's analysis. The Court of Appeals purports to assume the validity of the Baldus studies, but questions their value —-- or indeed, the value of any empirical social scientific evidence -- in proving racial disparities sufficient to allow an inference of intentional discrimination. The Court of Appeals' deep skepti- cism about the worth of social scientific methods, moreover, as well as the Court's apparent misunderstanding of several princi- pal features of statistical analysis, might well warrant an amicus curiae brief on behalf of academicians of your stature, drafted by Michael Finkelstein, urging the Supreme Court to review the opinion of the Eleventh Circuit, 

  

Naturally, as counsel for Warren McCleskey, I am interested in a review of the case on his behalf, but I also believe that the treatment afforded Baldus' evidence by the courts raises important questions about the value of social scientific evidence that transcend this case, or the death penalty issue generally. Certainly within the Eleventh Circuit, where McCleskey will be precedent if not reviewed, statistical proof 1n a variety of legal contexts will be made far more difficult (indefensibly so I believe) by that opinion. The broader implications of the McCleskey opinion, in sum, seem to justify Supreme Court review, and I am grateful for your willingness to consider participation in an amicus brief. . 

  

  

One word of explanation prior to your review. Professor Baldus' report is a condensation of somewhat broader and more comprehensive presentation made in 1983 to the District Court. It was written, at our request, with an eye toward educating the District Court on the basic principles of multivariete analysis and statistical inference. You may find, therefore, that the initial chapters are far more elementary than would be warranted in a report prepared initially for scholarly review. Please understand that Professor Baldus was complying with our requests in this mode of presentation, which will be substantially altered when he publishes the report in final form. 

Lastly I have included a number of additional exhibits and a brief report from Professor Baldus' collaborator, Dr. George Woodworth, at the end of report. These items comprise several revised analyses prompted by the 1983 hearing as well as Dr. Woodworth's diagnostics presented during the hearing. 

 



  

May 17, 1985 
Dr. Stuart S. Nagel 
Page 3 

Once again, thank you for undertaking this review, and best 
regards. 

Sincerely, 

gs Charles Boger 

JCB/ac 
Enclosures 
cc: Michael O. Finkelstein, Esq. 

 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013¢(212) 219-1900 

  

egal 

  

May 17, 1985 

Dr. Peter W. Sperlich 
Political Science Department 
University of California 
Berkeley, California 94720 

Dear Dr. Sperlich: 

At Michael Finkelstein's suggestion, I am enclosing copies 
of the judicial opinions rendered by the United States Court of 
Appeals for the Eleventh Circuit in McCleskey v. Kemp, 753 F.2d 
877 (11th Cir. 1985) (en banc) and by the United States District 
Court for the Northern District of Georgia, Atlanta Division, in 
McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984). Both of 
these opinions address and resolve adversely constitutional 
claims, presented by a Georgia death-sentenced inmate named 
Warren McCleskey, that the post-1972 capital statutes of the 
State of Georgia have been applied in an arbitrary and racially 
discriminatory manner. The factual basis for these allegations 
derives from two overlapping studies conducted by Professor David 
Baldus of the University of Iowa School of Law. I am also 
enclosing a preliminary report by Professor Baldus which outlines 
his findings. 

  

  

Michael Finkelstein has indicated that you might be willing 
to review the opinions and Baldus' report, as well as the brief 
submitted by Mr. McClesky to the Eleventh Circuit, for possible 
participation as an amicus curiae in a brief to be submitted to 
the Supreme Court of the United States in June, 1985. I am 
counsel for Mr. McCleskey, and I would of course welcome your 
participation in this case. The Baldus studies comprise the most 
methodolically sophisticated and comprehensive effort ever 
undertaken to examine the actual application of capital punish- 
ment statutes. Professor Baldus reports findings of racial 
disparities, especially by the race of the victim, that are 
highly statistically significant, and that persist irrespective 
of the model he selects or the analystic methods he employees. 

  

The federal courts have nevertheless rejected his work on a 
variety of grounds, none of which seem to me persuasive. The 
District Court, as you will see, faults his studies on a variety 
of methodological points and displays hostility towards any 
method of multivariate analysis other than cross-tabuler methods. 

Contributions are deductible for U.S. income 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. 

 



  

May 17, 1985 
Dr. Peter W. Sperlich 
Page 2 

Our brief to the Eleventh Circuit, a copy of which is also enclosed, engages in a point-by-point discussion of the District Court's analysis. The Court of Appeals purports to assume the validity of the Baldus studies, but questions their value -- or indeed, the value of any empirical social scientific evidence -- in proving racial disparities sufficient to allow an inference of intentional discrimination. The Court of Appeals' deep skepti- cism about the worth of social scientific methods, moreover, as well as the Court's apparent misunderstanding of several princi- pal features of statistical analysis, might well warrant an amicus curiae brief on behalf of academicians of your stature, drafted by Michael Finkelstein, urging the Supreme Court to review the opinion of the Eleventh Circuit. : 

  

Naturally, as counsel for Warren McCleskey, I am interested in a review of the case on his behalf, but I also believe that the treatment afforded Baldus' evidence by the courts raises important questions about the value of social scientific evidence that transcend this case, or the death penalty issue generally. Certainly within the Eleventh Circuit, where McCleskey will be precedent if not reviewed, statistical proof in a variety of legal contexts will be made far more difficult (indefensibly so I believe) by that opinion. The broader implications of the McCleskey opinion, in sum, seem to justify Supreme Court review, and I am grateful for your willingness to consider participation in an amicus brief. 

  

  

One word of explanation prior to your review. Professor Baldus' report is a condensation of somewhat broader and more comprehensive presentation made in 1983 to the District Court. It was written, at our request, with an eye toward educating the District Court on the basic principles of multivariete analysis and statistical inference. You may find, therefore, that the initial chapters are far more elementary than would be warranted in a report prepared initially for scholarly review. Please understand that Professor Baldus was complying with our requests in this mode of presentation, which will be substantially altered when he publishes the report in final form. 

Lastly I have included a number of additional exhibits and a brief report from Professor Baldus' collaborator, Dr. George Woodworth, at the end of report. These items comprise several revised analyses prompted by the 1983 hearing as well as Dr. Woodworth's diagnostics presented during the hearing. 

 



  

May 17, 1985 
Dr. Peter W. Sperlich 
Page 3 

Once again, thank you for undertaking this review, and best 

regards. 

Sincerely, 

hn Charles Boger 

JCB/ac 
Enclosures 

cc: Michael O. Finkelstein, Esq. 

 



  

hf show a racial bias in that decision. 

+ The court ruled that, no matter whether 

THE ATLANTA CONSTITUTION 
* For 116 Years the South’s Standard Newspaper 
  

g James M. Cox, Chairman 1950-1957— James M. Cox Jr., Charan Too7-107 
  

£4 con i 
EERE su 

Tom ecis Jim Minter 
: Editorial Page Editor - Editor ~ * Managing Editor 

i David E. Easterly 
Publisher . 

| Minor J . Ward 
President 

Edward Sears 

PAGE 14-4, THURSDAY, FEBRUARY 7, 1985 
  

4 A ruling for capriciousness 4 
~ No amount of verbal polish can gloss 

over deep flaws in deatirpenaity: law, but 
the courts keep trying. 

Last week, the 11th U. S. Circuit Court of 
~ Appeals rejected a study that purports to 
-show application of the death penalty as ra- 
cially discriminatory. Based on meticulous 
statistics, the study concluded: Defendants 
whose victims were white are more likely to 
land on death row than defendants Whose 
victims were black. \ ; 4 

The 11th Circuit's answer, offered in a 
dicision last week, is: So what? Warren 
McCleskey, a black death-row inmate who 

.~ made the study part of his case, was con- ila 

.. victed of killing a white Atlanta policeman. 
* But, as the court notes, the study does not 

the study is sound or not, even its worst 
conclusions are tolerable because: 1) No two 
cases are alike — who knows what factors 
influenced each decision tabulated in the 
statistics? 2) even if cases were alike, “the 
very existence of discretion means that per- 
sons exercising discretion may reach differ- 
ent results from exact duplicates,” and 3) 
the law does not intend to discriminate. 

In other words, a system that is ulti- 
mately more prone to avenge a white per- 
son’s murder with capital punishment is OK, 
because who really knows why things work 
out that way? 

Here is what the court is up against. On 

any A 
EDS 
a ro pl 

the one hand, public-opinion lls show that 
captial punishment is extremely popular 
now. And legislatures, state attorneys gener- 
al, district attorneys and the U.S. Supreme 
Court push for more executions. po 

~ And yet, a quick look at ort execu- 
tions reveals a system that — contrary to 
the law’s intent — remains arbitrary and 
capricious. Moreover, as the study shows, 
the system appears to abridge constitutional 

- guarantees of equal protection under the | 
law; it regards the murder of a white as a 
crime more serious than the murder of a 
black. : \ 

But the are is that to acknowledge 

  
such persistent legal questions in effect '! 
would outlaw capital punishment. It isn’t 

- . prepared to do that. So it fudges and says, 
oh, well, a little arbitrariness is OK. 

“After today,” said Judge Frank Johnson 
in a dissenting opinion, “in this circuit arbi- 
trariness based on race will be more diffi- 
cult to eradicate than any other sort of arbi- 
trariness in the sentencing system.” 

The flaws in death-penalty law grow 
more apparent as the number of executions 
accumulates. The political system, it is 
clear, is willfully indifferent to them. Yet, 
can our society decently demand the ulti- 
mate penalty despite the increasingly appar- 
ant fact that we are incapable of applying it 
free of the whims of legal chance and free 
of the sly intrusion of our complex social 
prejudices? 

| 
1 

| 

 



    The University of lowa 
lowa City, lowa 52242 

  

  College of Law 

October 16, 1984 

John C. Boger 
NAACP Legal Defense and Educative 

Fund, Inc. 
99 Hudson Street 
New York, NY 10013 

Dear Jack: 

In conducting an inventory of the McCleskey papers, I recently noted that 
I did not have a copy of the state of Georgia's brief in the Eleventh Circuit. 
Would you please send me one when you have an opportunity. 

It was good to talk to you today and I look forward to getting your list 
of schools. 

Sincerely, 

peer 
David C. Baldus 
Professor of Law 

DCB :kb 

 



   
JOHN R. MYER 1515 HEALEY BUILDING 

57 FORSYTH ST., N. W. 

ROBERT H. STROUP ATLANTA, GEORGIA 30303 

GARY FLACK 
ro 

July 3, 1984 
404/522-1934 

ATTORNEYS AT LAW 

John Charles Boger, Esq. 

16th Floor 

99 Hudson Street 

New York, New York 10013 

Re: McCleskey v. Zant 
  

Dear Jack: 

Enclosed you will find the originals of the Guilt and 
Sentencing Phase Jury Instructions in McCleskey's Fulton 
Superior Court trial. 1 appreclate very much your 
bringing these to Atlanta for my review prior to the 
oral argument. 

Very truly yours, 

nae, 
Robert H, Stroup 

RHS/1 

Enclosures 

 



  

Hnited Mtates Court of Appeals 
ELEVENTH CIRCUIT 

SPENCER D. MERCER OFFICE OF THE CLERK IN REPLYING, GIVE NUMBER 
CLERK 56 FORSYTH STREET, N.W. OF CASE AND NAMES OF PARTIES 

ATLANTA, GEORGIA 30303 

May 31, 1984 

TO ALL COUNSEL OF RECORD 

84-8176 —- McCleskey v. Zant 
  

This is to advise that the above death penalty appeal has been 

allotted one (1) hour per side for oral argument before the en 

banc court on Tuesday, June 12, 1984, in Atlanta, Georgia. 

Sincerely, 

SPENCER D. MERCER, Clerk 

   
Calendar Clérk 

   /bjc 

Mary Beth Westmoreland, Esq. 
Robert H. Stroup, Esq. 

Jack Greenberg, Esq. 
James M. Nabrit, III, Esq. 

John Charles Boger, Esq. 

Anthony G. Amsterdam, Esq. 

 



   
JOHN R. MYER 1515 HEALEY BUILDING 

57 FORSYTH ST. N. W, 

ROBERT H. STROUP ATLANTA, GEORGIA 30303 

GARY FLACK er 
404/522-1934 

ATTORNEYS AT LAW 

May 1, 1984 

John Charles Boger, Esq. 
Legal Defense Fund, Inc. 
16th Floor 

99 Hudson St. 
New York, N.Y. 10013 

Dear Jack: 

I am enclosing my 30 pages of the McCleskey brief. As you will 
note, it is only 30 1/2 pages long. While I assumed it would be 
necessary for you to retype it, I have sent you the original just 
in case any of it can be used without retyping. 

  

I have also enclosed a summary of this part of the argument, and a 
listing of cases and statutes cited. I have not listed page 
citations for the cases and statutes, as I anticipated that would 
change. 

If there's more that you need from me, let me know. 

Very truly yours, 

Robert H. Stroup 

RHS/ib 

Encls. 

 



TIMOTHY K. FORD 

COUNSELLOR AT LAW 

600 PIONEER BUILDING 
SEATTLE, WASHINGTON 98104 
206/622-5942 

  

  

April 30, 1984 

Jack Boger 
NAACP Legal Defense Fund 
99 Hudson Street, 16th Floor 

New York, NY 10013 

Dear Jack: 

It was good to see you last week. I am enclosing everything I 
could find in my box of McClesky stuff, which appeared to be 
trial preparation materials describing authorities supporting Dave 
and contradicting Katz. I think there may have been more than 
this, but I do not appear to have them here. You might check your 
boxes of materials and see if you can find more of my Katz cross- 
examination book there. I think there were some snippits of 
materials that focus on particular points in those. I will 
continue to look around here as well. 

  

Stay well. 

pr te moe 

Gh = 
Timothy K. Ford 

TKF : mm 

Fnclosures sent under separate cover via federal express. 

 



  

  

    
New York University 
A private university in the public service 
  

School of Law 

Faculty of Law 

40 Washington Square South, Room 327 

New York, N.Y. 10012 

Telephone: (212) 598-2638, 2639 

Professor Anthony G. Amsterdam 

March 20, 1984 

John Charles Boger, Esq. 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

re: McCleskey 
  

Dear Jack: 

The enclosed appearance form arrived yesterday from 
the Eleventh Circuit, bearing no name but endorsed with the 
number that you told Nancy Lee had been assigned to McCleskey. 
I have filled out my personal data and signed the form, 
leaving everything else (including the name) blank, so that 
you can conform it to your copy and send the two in together 
pursuant to immemorial custom, if you would be so kind. 

  

Many thanks. Take care and keep well. 

As ever, 

—— 

[61 MN 
Anthony G. sterdam 

AGA/ss 
(Dictated by Mr. Amsterdam 
and signed in his absence.) 

 



  

  
LEWIS R. SLATON 

DISTRICT ATTORNEY-ATLANTA JUDICIAL CIRCUIT 

THIRD FLOOR COURTHOUSE ¢ ATLANTA, GEORGIA 30335 

March 20, 1984 

Mr. Robert H. Btroup 
Attorney at Law 

1515 Healey Building 
57 Forsyth Street, N.W. 
Atlanta, Georgia 30303 

Re: The State v. Warren McCleskey 
Indictment No. A-40553 
  

Dear Mr, Stroup: 

Thank you for your letter of March 19, 1984. 

Your offer is declined. 

Sincerely, 

  

R.. 8 
District Attorney 
Atlanta Judicial Circuit 

LRS:bcl 

 



  

JOHN R, MYER 

ROBERT H. STROUP 

GARY FLACK 

1515 HEALEY BUILDING 

57 FORSYTH ST., N. W. 

  
404/522-1934 

ATTORNEYS AT LAW 

March 19, 1984 

Mr. Lewis R. Slaton 

District Attorney 
Atlanta Judicial Circuit 

Third Floor Courthouse 

Atlanta, Georgia 30335 

Re: Warren McCleskey, Indictment No. A-40553 
  

Dear Mr. Slaton: 

I am writing to you at the request of my client, Warren McCleskey. As 
I expect you are aware, Judge Forrester“entered an order on February 
2, 1984, granting my client a new trial on his conviction for malice 
murder. As I also expect you are aware, that order has been appealed 
by the State, and McCleskey has filed a cross-appeal from other 
portions of Judge Forrester's February 2 order. 

My client has asked that I inquire as to whether there is any 
possibility of resolving this whole matter at the present time through 
plea negotiations, thereby obviating the need for further appeals and 
a retrial, dependent upon the outcome of the appeals process. I have 
spoken in this regard with Mary Beth Westmoreland, in the Attorney- 
General's office, who advised me that I should speak with Russ Parker 
in your office. I have done so, and he indicated that I should 
communicate my request to you. 

If there is any interest in resolving this matter at the present time 
through plea negotiations, I would appreciate your advising me. 

I appreciate very much your cooperation in this matter. 

Very truly yours, 

Robert Xt ouy 
Robert H. Stroup 

cc: Mary Beth Westmoreland, Esq. 
Russ Parker, Esq. 

  

ATLANTA, GEORGIA 30303



   
    

i J SJL ==     
LEWIS R. SLATON 

DISTRICT ATTORNEY-ATLANTA JUDICIAL CIRCUIT 

THIRD FLOOR COURTHOUSE ¢ ATLANTA, GEORGIA 30335 

March 14, 1984 

Mr. Robert H. Stroup 
Attorney at Law 
1515 Healey Building 
57 Forsyth Street, N.W. 
Atlanta, Georgia 30303 

RE: Warren McCleskey 
A-40553 

Pear Mr, Stroup: 

I have a different recollection of your 
telephone inquiry of March 13, 1984 on behalf 
of Warren McCleskey. You indicated your client 
McCleskey had asked you to call to see if some 
type of deal could be worked out on the murder 
charge. 

My response was that I didn't know 
anything about a deal and the case was out of 
my hands as it is on appeal to the llth 
Circuit. I also advised that you could contact 
the District Attorney, Mr. Lewis Slaton, if you 
wished to pursue the matter further. 

With kind personal regards, I remain, 

Sincerely, 

nti 
Assistant District Attorney 
Atlanta Judicial Circuit 

RJP: jnb 

CC: Mary Beth Westmoreland 
Assistant Attorney General 
132 State Judicial Building 
40 Capital Square 
Atlanta, Georgia 30334 

 



    

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal 

  

April 3, 1984 

Professor David C. Baldus 

College of Law 
University of Iowa 
Jowa City, Iowa 52242 

Dear Dave: 

Long overdue, I'm afraid, is 

the enclosed copy of Respondent's Exhibit 

20 from the McCleskey v. Zant hearing. 
  

Best regards. 

Sincerely, 

ch 
n Charles Boger 

JCB:agf 

Contributions are deductible for U.S. income 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 it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

TABLE OF NONMATCH COUNTS 
  

PERCENT 

208 

  

PROCEDURAL CHARGING 

NUMBER OF REFORM AND 

OF 361 STUDY SENTENCING 

DESCRIPTION NONMATCHES CASES VARIABLE VARIABLE 

Stat Agg Bl 18 5% PBQB1 LDFB1 
Stat Agg B2 23 % PBQB2 LDFB2 
Stat Agg B3 50 e 147 PBQB3 LDFB3 

Stat Agg B4 40 117 PBQB4 LDFB4 

Stat Agg B5 0 0% PBQBS LDFB5 
Stat Agg B6 9 3% PBQB6 LDFB6 

Stat Agg B7 55 15% PBQB7 LDFB7 
Stat Agg BS 1 0% PBQB8 LDFB8 
Stat Agg BY 3 1% PBQBY LDFB9 

Stat Agg B1lO 92 25% PBQB10 LDFB10 
Death Eligible 29 8% DPELIG DEATHELG 

Number of death elg factors 180 20%, PBQDELX LDFBSUM 
Number of prior felonies 120 33% PRIFEL PRIFELX 
Coperpetrators 27 7% COPERPS LDF191 
Sex motive 26 7% SEXMT LDF137 
Jealousy motive 13 47 JEALOS LDF138 

Immediate rage motive 35 15% RAGE LDF139 

Insurance proceeds motive 3 1% INSMOT LDF142A 

Silence witness motive 47 13% SILWIT VWITNESS 

Drug dispute 38 11% DRUGDIS LDF151 

Execution style murder 65 187% EXECK LDF177 

Unnecesary killing 64 187% UNNEC LDF178 

Victim pleaded for life 27 7% VICPLEA LDF179 

Sexual perversion 8 2% PERVR LDF181 

Defendant additional crimes 58 16% ADCRIM LDF185 

Armed robbery 27 1% ARMROB ARMROB 

Rape 5 2% RAPE RAPE 
Kidnap 17 SZ KIDNAP KIDNAP 

Burglary or arson 12 47 BURGARS LDF131-134A(5,6) 

Racial animosity motive 6 27 RACE LDF142B 

Multiple stabs 16 47 MULSTAB MULSTAB 

Hostage 14 47 HOST HOSTAGE 

Ambush 35 10% AMBUSH ~ AMBUSH 

Bloody 101 28% BLOODY LDF172-175B(10) 

Slashed throat 12 37 SLASHTH LDF172-175B(8) 

Defendant drug history 92 25% DRGHIS LDF276A 

Defendant gave up in 1 day 25 1% DFSUR24 LDF276 

Victim aroused fear 56 16% DFEAR LDF281 

History bad blood 27 7% VBDBLD LDF283 

Victim bound and gagged 8 27% VICBDGAG LDF172-175B(13) 

Def claimed accident 24 7% ACCD ACCIDENT 

Def fired 5 or more shots 30 8% SHOTS DSHOOTS 

Def killed 2 or more vic 7 2% TWOVIC TWOVIC 

Two or more vic in all 289 80% TWOVICAL TWOVICAL 

nsanity delense 18 5% INSANE INSANDEF 

Victim 12 or younger 4 17% YNGVIC VICCHILD 

Victim over 65 13 47% OLDVIC VDEFOLD 

Def 16 or younger 31 9Z MINOR SMYOUTH 

Def injured 1+ persons 10 3% INJURE DEFHURT 

Victim a stranger 44 12% VICSTRAN STRANGER 

 



  

Anthony G. Amsterdam 

Vii. 327 

New York University Law School 

43 Washington SHguare South 

New York, New York 12@&1Z2 

Jay Wishingrad, Esq. 

Shapiro, Spiegel, Garfunkel & Driggin 

477 Madison Avenue 

New York, New York l1ddzz 

Dear Jay: 

I greatly appreciate your thoughtful letter of February 

13 and its enclosures. Jack Booger and I will certainly have your 

ideas in mind in drafting the cert. petition in Moclleskey v. 

Kemp, the case to which you refer. As an analytic matter, your 

constitutional-analogies approach is made to order for the case. 

The more difficult guestion is whether it is the best light 

rod to draw a cert. grant from a Court whereon the key votes 

likely to be cast by Justices like Blackmun, who couldnt tel 

analogy from an anthill, and Powell, who takes equal pleasure in 

sauashing both. Stevens might buy the approach, but playing 

analogies with Stevens is a little like playing Can You Top This 

with Lermie Bruce. For him, the only oriterion of a good theory 

is that nobody thought of it before he did. 
ft
 

B13
 ~ 3 

iH)
 

Forgive the cynicismy it, No-Doz and gallows humor are 

all we have left to keep us going. When we actually get down to 

writing, we turn serious enough, and will seriously consider your 

suggestion for which I'm very grateful. 

i 4 

1 
k 3 

Hope you! re prospering, Jav. Take care of vourself and 

keep well. Many thanks again for your support and the stimulus 

of your thinking. 

With best wishes 5 

hoo: John Charles Boger, Cen. i [
1
 i 

4 
4 

 



    

The University of lowa 
lowa City, lowa 52242 

College of Law 

    

  

  

1847 

December 16, 1983 

Ms. Sara J. Sonet 

Librarian 

United States Supreme Court 

Washington, DC 20543 

Dear Ms. Sonet: 

In connection with your request of December 14, 1983 for the two 

studies I have done on capital sentencing in Georgia (Differential 

Treatment of White and Black Victim Homicide Cases in Georgia's Capital 

Charging and Sentencing Process: Preliminary Findings (June 1982) and 

Discrimination and Arbitrariness in Georgia's Capital Charging and 

Sentencing System: A Preliminary Report (July 1983)), it occurred to me 

that you may not be aware of the background of these reports. TI have 

done extensive research on Georgia's capital sentencing system over the 

past few years. In connection with that work, I was requested to act as 

an expert witness in a federal habeas corpus proceeding now pending in 

the Northern District of Georgia (McClesky v. Zant, C81-2434A). In the 

course of a hearing in this case held in Atlanta in August of this year, 

a substantial portion of the material in the two reports was presented 

to the court. My co-author Dr. George Woodworth and I also presented 

in this hearing much additional testimony not included in either 

report. We plan to publish the results of our Georgia research, and 

we hope to do so soon, but neither of the two reports prepared for the 

McClesky case has been published or will be published in their present 

form. 

  

  

  

  

  

  

Because the evidence in these two reports may at some point come 

before the Supreme Court in the McClesky case or some related 

proceeding, I am concerned that my transmittal of these reports to you 

could raise ethical questions. If despite these potential problems, 

 



  

Ms. Sara J. Sonet 

December 16, 1983 

Page 2 

you would like to see the reports, please let me know and I will 

gladly forward the request to counsel for Warren McClesky and the 

State of Georgia. 

Finally, I would like to clarify the question we discussed earlier 

by phone concerning the dates these reports were prepared. Data 

collection on the project was not completed until the spring of 1982 and 

the June 1982 report was a tentative preliminary statement of our 

results to that date. Our analysis continued through the balance of 

1982 and the spring and summer of 1983. The findings embodied in the 

1983 report were not finalized until late July this past summer. 

I very much appreciate your interest in our research and hope I can 

be of service to the Court in the future. 

Sincerely, 

David C. Baldus 

Joseph B. Tye 

Professor of Law 

DCB/mss 

 



    

   The University of lowa 
lowa City, lowa 52242 

College of Law   

  

1847 

November 16, 1983 

John C. Boger 

NAACP Legal Defense and 

Educative Fund, Inc. 

99 Hudson Street 

New York, NY 10013 

Dear Jack: 

In the course of moving to Iowa from Syracuse I mislaid two 

depositions that you gave me a couple of years ago. I would appreciate it 

if you could send me duplicates, as the J. of Crim. Law and Criminology is 

after me for copies. The depositions are: 
  

* Dennis York, Nov. 13, 1978 

in House v. Balkcom 

N 78-1417A 
  

* Dennis York, May 14, 1979 

in McCorquodale v. Balkcom 

N 79-95A 
  

Thanks for your help. 

Best regards, 

DCB/mss dil, 

 



  

LINDA KOOBRICK ADLER 
MICHAEL O. ALBERTINE 
CESAR L. ALVAREZ 
RUDOLPH F. ARAGON 
REUBIN O'D. ASKEW 
JAMES L. BACCHUS 
HILARIE BASS 
NORMAN J. BENFORD 
MARK D. BLOOM 
BURT BRUTON 
ROBERT K. BURLINGTON 
ALBERT G. CARUANA 
ALAN R. CHASE 
SUE M. COBB 
KENDALL B. COFFEY 
MARK B. DAVIS 
ALAN T. DIMOND 
CHARLES W. EDGAR, IIT 
GARY M. EPSTEIN 
THOMAS K. EQUELS 
RICHARD G. GARRETT 
LAWRENCE GODOFSKY 
ALAN S. GOLD 
HARVEY A. GOLDMAN 
STEVEN E. GOLDMAN 
STEVEN M. GOLDSMITH 

BRIAN K. GOODKIND 

MATTHEW B. GORSON 

MELVIN N. GREENBERG 

MARILYN D. GREENBLATT 

ROBERT L. GROSSMAN 

GARY M. HELD 

LARRY J. HOFFMAN 

BARRY D. HUNTER 

ARNOLD M. JAFFEE 

SETH P. JOSEPH 

MARTIN KALB 

TIMOTHY E. KISH 

STEVEN J. KRAVITZ 

STEVEN A. LANDY 

STEVEN B.'LAPIDUS 

ALAN S. LEDERMAN 

WALLACE L. LEWIS, JR. 

NORMAN H. LIPOFF 

GARY D. LIPSON 

CARLOS E. LOUMIET 

JUAN P. LOUMIET 

DEBBIE RUTH MALINSKY 

GREGORY A. MARTIN 

PEDRO A. MARTIN 

ALAN M. MITCHEL 

LOUIS NOSTRO 

Mr. James M. Nabrit, III 

Associate Counsel 
Legal Defense Fund 
99 Hudson Street 

New York, New York 10013 

Dear Mr. Nabrit: 

LAW OFFICES 

ANTHONY J. O'DONNELL, JR. 

ROGER D. OSBURN 

BYRON G. PETERSEN 

VICTOR. H. POLK, JR. 

ALBERT D. QUENTEL 

RONALD B. RAVIKOFF 

FLORENCE T. ROBREBINS 

NICHOLAS ROCKWELL 

DAVID L. ROSS 

ROBERT M. RUBENSTEIN 

CLIFFORD A. SCHULMAN 

MARK SCHWIMMER 

MARTIN B. SHAPIRO 

EUGENE ‘SHY, JR. 

MARLENE K. SILVERMAN 

TIMOTHY A. SMITH 

DARLENE STOSIK 

HERBERT M., SUSKIN 

LILLIANA TORREH-BAYOUTH 

ROBERT H. TRAURIG 

YOLANDA I. VILLAMIL 

STANLEY H. WAKSHLAG 

JONATHAN H, WARNER 

DAVID M. WELLS 

JULIE A. S. WILLIAMSON 

JERROLD A. WISH 

November 7, 

Thank you for the McCleskey brief. 

GREENBERG, TRAURIG, ASKEW, HOFFMAN, LIPOFF & QUENTEL, P. A. 

AMBLER H. MOSS, JR. 

ZACHARY H. WOLFF 

OF COUNSEL 

BRICKELL CONCOURS 

1401 BRICKELL AVENUE 

MIAMI, FLORIDA 33131 

TELEPHONES 

MIAMI (305) 579-0500 

BROWARD (305) 523-8I1| 

TELEX 80-3124 

TELECOPY (BOB) 579-0718 

WRITER'S DIRECT NO:. 

    

Very truly 

TKE/bwp 

   



  

Linda M. Trice 

June 19,1985 

John Boger 

Assistant Counsel : 

NAACP Legal Defense and Educational Fund Inc. 

Suite 1600 

99 Hudson Street 

New York NY 10013 

Dear Mr. Boger: 

Than you for discussing the MtClesky case with me a few weeks ago. It 

cave me a better understanding of the case and helped me in writing my 

paper for my Law and Scoial Science course at Brooklyn Law School. I've 

enclosed a cooy of the paper and sent another to Deval Patrick. 

I'd like to work on the case and have enclosed my resume. When I spoke 

with you you impressed upon me the need for work on the historical aspect. 

I am a former Afro American Studies professor (Trinity College, Lincoln Univ. 

City Univ.) and would be eager to contribute what I could. 

I'm working at the Children's Rights Project of the ACLU(944-9800) 

as a legal intern until mid August and can be contacted there during the day. 

My home address and phone number are above. 

Thank you again for the insights/you gave me on the case. 

Sincérels; 

§ 
A 

ADr.) Linda Trice 

 



  

Linda M. Trice 

EDUCATION   

BA Howard University. History, Education, Black Studies 

MFA Columbia Univ. Creative Writing and Afro American Culture 

PhD Union Graduate School. Center for Minority Studies. 

Presently attending Brooklyn Law School. Expected date of graduation -1987 

ACTIVITIES IN LAW SCHOOL   

Honors 

Moot Court Honor Society - 2 years 

Finalist- Jessup International Law Competition 

Scholarships and Fellowships 

Bainbridge Scholar- New York Bar Assn. Earl Warren Scholar-NAACP LDF 

Brooklyn Law School Scholarship 

  

School Organizations 

Black law Students Association National Lawyer's Guild 
International Law Society contributor to school newspaper "Justinian'. 
Critical legal Studies- Executive Director- 2 years 

Parents-at-Law. Founder and Chairperson- 3 years. This is an organization of parents who 

are students at Brooklyn Law School. Through group discussions and with the guidance of 

guest speakers we hope to become better parents and lawyers. Speakers at the 1984 

syvmposium( all lawyers who are parents) included Janette Seraille, Elizabeth Schneider, 

Haywood Burns and Patricia Murphy. 

  

PROFESSIONAL MEMBERSHIP 

National Lawyer's Guild -1LSOC representative to the Executive Committee, NYC Chapter 

Critical Legal Studies 1985 conference on Feminism, BLS student delegate. 

National Conference of Black Lawyers 

American Assn. of University Women 
New York State Bar Assn. 

Assn. of Minority Political Women. 

  

WORK EXPERIENCE   

1985 Summer. LSCRRC grant. Summer intern to Lauren Anderson, Children's Rights Project 

ACLU : 

1984 Summer. LSCRRC grant. Summer intern to Hon. Margaret Burnham, National Director , 
National Conference of Black Lawyers . Also- 

- work with Shiela Abdus Salaam on NCBL Women's Project 

- work with Gail Wright on Dec. 1984 luncheon honoring 3 black women judges. 

1984-1985 law clerk to Javier White, Stevem ,Hinds and White, W. 125 St. NYC 

Non Legal Experience 
  

College Professor- Afro American Studies, Writing.at:Lincoln Univ. Master of Human 

Services Program, Trinity College (Ct.) City Univ. of NY 
Teacher- Public Schools in New York, Washington DC., Connecticut 

Public Relations - Studio Museum in Harlem, Port of N.Y. Authority, Russell Sage Foundation 

Director of Publications- Richard Clarke Assn., NYC- a minority executive search agency 

Writer- Free lance. Published since 1957. 

 



  

AMERICAN CIVIL LIBERTIES UNION National Headquarters 

132 West 43 Street 

New York, NY 10036 
(212) 944-9800 ; 

Norman Dorsen 
PRESIDENT 

Ira Glasser 
EXECUTIVE DIRECTOR 

Eleanor Holmes Norton 
CHAIR 

NATIONAL ADVISORY COUNCIL 

June 19,1985 

Deval Patrick, Esq. 

Assistant Counsel 

NAACP Legal Defense and Educational Fund, Inc. 

Suite 1600 

99 Hudson Street 

New York NY 10013 

Dear Mr. Patrick: 

Thank you for sending the information and materials I needed for 

my paper on the Baldus Study in the McClesky case for my Law and Social 

Science class at Brooklyn Law School . I've enclosed a copy of the paper. . 

(I haven't received the grade for the course yet! ) 

I'd like to work on the case and have enclosed my resume. When I talked 

to Jack Bolger( I sent him a copy of the paper too) he told me work was 

needed on the historical aspect.I am a former Afro American Studies professor 

(Trinity College, Lincoln Univ., City Univ.) and would be eager to contribute 

what I could. 

I'm working in the Children's Rights Project as a legal interne until mid 

August and can be contacted here. My home address and phone number are on the 

resume. 

Thanks again for helping me with the paper. 

Sincereld; 
Yall 4 

| rd 

A/ 

(DF. Linda Trice