Briefs for Cross-Appellee (Zant)

    UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 84-8176 

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 
Cross-Appellant, 

Ve. 

WALTER D. ZANT, WARDEN, 

Respondent-Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

BRIEF FOR RESPONDENT-APPELLANT 

  

HABEAS CORPUS 

  

MICHAEL J. BOWERS 

Attorney General 

JAMES P. GOOGE, JR. 

Executive Assistant 
Attorney General 

MARION O. GORDON 

First Assistant 

Attorney General 

Please serve: WILLIAM B. HILL, JR. 

Senior Assistant 
MARY BETH WESTMORELAND Attorney General 

132 State. Judicial ‘Bldg. 
40 Capitol Square, S.W,. MARY BETH WESTMORELAND 

Atlanta, Georgia 30334 Assistant Attorney 
(404) 656-3349 General 

 



  

STATEMENT REGARDING PREFERENCE 
  

This case is an appeal taken by Warden Walter D. Zant 

from the Order of the district court granting habeas 

corpus relief under 28 U.S.C. § 2254. ‘Under this Court's 

listing in Appendix I to its Rules, this case warrants 

preference in processing and disposition. 

 



  

REASONS WHY ORAL ARGUMENT IS NECESSARY 
  

This Court has already directed that the instant case 

be heard/en banc. Thus, it is clear that there are 

significant issues presented justifying oral argument in 

the case. 

df 

 



  

STATEMENT OF THE ISSUE 
  

LN 

Did the district court incorrectly conclude that the 

Appellee's rights were violated by an alleged deal between 

a witness at trial and the prosecution? 

 



  

TABLE OF CONTENTS 
  

  

Page 

STATEMENT REGARDING PREFERENCE ‘oss is a. sie nis i 

REASONS WHY ORAL ARGUMENT IS NECESSARY . . . . . ii 

STATEMENT OF THEAISSUE wiv vio vis isis wiie ion a 1 

STATEMENT. OF THE CASE. 'v" viu «aU wide oi vivo ieiis 2 

SEMMARY OF THE ABGUMENT I "4's v's oo Wiis “ati a lisnte in 9 

STATEMENT OF JURISDICTION. "4: vo visiiv su siteim co 11 

ARGUMENT AND CITATION OF AUTHORITY 

I. THERE WAS NO AGREEMENT BETWEEN THE 
PROSECUTION AND WITNESS OFFIE EVANS 
WHICH SHOULD HAVE BEEN DISCLOSED 
BO THE JURY oe So fs viin. inno fei nin 2 was 12 

CONCLUSION , ©. ie iin dis sifwine. » wow 0 ei dite rondo oo 29 

CERTIFICATE OF SERVICE Ww oi ds an aa a8 30 

-1ii~ 

 



TABLE OF AUTHORITIES 
  

Cases cited: Page(s) 
  

Alcorta v, Texas, 355 U.S. 28 (1957) 4 . iu. 19,22 
  

Giglio v, United States, 405 U.S. 150 (1972) . 21,22,26,28 
  

McCleskey v. State, 245 Ga. 108, 263. 8.8.24 146, 

cert’. denied, 449 U.S. B91 (1980) . 4. . «7. 2 
  

  

Napue v, Illinois, 360 U.S. 264 (195%) . . 20,21 ,22 
  

Smith v. Kemp, 715 7.241459 (11th Cir.), 
cert. denied, U.S. y 

104. S.C: > 510 (1983) vw vive olis oh 

  

  

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

{5th Cir, 1978) hs Le AN SRR Se 
  

United States v. Antone, 603 F.2d 566 

{5th .Cir. 11979) oy eiite ily i'n Tei a ie ge 
  

United States v. Cawley, 481 F.2d 702 
(5th. Clr, 1973). 0 wi. Sle ovis 7, 
  

United States v. Meinster, 619 F.2d 1041 

(4th Cir. 1980) oie Nee hig ak a Bla o 
  

Statutes:   

0.C.G.A. § 16-10~-30(b)Y{2) and (8); 
Ga. Code Ann. % 27-2534.1(b)(2) and. (b)(8) 

28 U.S.C, Bi2254., + iio sc ivieinlie Tels M0, 

28 "USC. "8: 2253 0 a iuliy ids ie Se ve Ven 

 



  

STATEMENT OF THE CASE 
  

(ii) Course of Proceedings. 

On June 13, 1978, the grand jury of Fulton County, 

Georgia returned a three count indictment against Warren 

McCleskey (hereinafter referred to as the Appellee) and 

his co-defendants, David Burney, Bernard Dupree and Ben 

Wright, Jr., charging said individuals with the offense of 

murder and two counts of armed robbery. The Appellee was 

tried separately on October 9-12, 1978, and was found 

guilty on all three counts. The jury imposed the death 

penalty on the murder charge, finding that: (1) the 

offense of murder was committed while the Appellee was 

engaged in the commission of another capital felony, and 

(2) the offense of murder was committed against a peace 

officer, corrections employee or fireman while engaged in 

the performance of his official duties. See 0.C.G.A. 3% 

17-10-30{b) (2) and (b){(8): Ga. Code Ann, § 27-2534.1(b})(2) 

and (b)(8). Consecutive life sentences were imposed on 

the two counts of armed robbery. 

The Appellee appealed his convictions and sentences to 

the Supreme Court of Georgia. That Court affirmed the 

convictions and sentences. A subsequent petition for a 

writ of certiorari was denied by the Supreme Court of the 

United States. McCleskey v. State, 245 Ga. 108, 263 
  

S.E.2d4 146, cert, deniesd, 449 U.S. 891 (1980). 
  

 



  

On January 5, 1981, the Appellee filed a petition for 

habeas corpus relief in the Superior Court of Butts 

County, Georgia. An evidentiary hearing was held by that 

Court on January 30, 1981, The Superior Court of Butts 

County denied habeas corpus relief in an order dated 

April 8, 1981. The Supreme Court of Georgia denied the 

application for a certificate of probable cause to appeal 

on June 7, 1981, A second petition for a writ of 

certiorari was denied by the United States Supreme Court 

on November 30, 1981. 

On December 30, 1981, the instant application for a 

federal writ of habeas corpus was filed in the United 

States District Court for the Northern District of 

Georgia. Discovery was conducted by both parties pursuant 

to leave of court so that evidence could be obtained 

concerning a statistical challenge to the imposition of 

the death penalty in the State of Georgia. An evidentiary 

hearing was held during the month of August, 1983. A 

supplemental hearing as later held by the district court 

as well. 

After conducting the hearings and receiving briefs 

from both parties, the district court entered an order 

dated February 1, 1984. In said Order, the court 

concluded that all of the issues raised in the petition 

were without merit except for the issue alleging an 

undisclosed deal with a witness. Based on that issue, the 

 



  

district court ordered that the conviction and sentence 

for malice murder be set aside, although the court 

affirmed the convictions for armed robbery. Appellant 

Zant subsequently filed an appeal to this Court 

challenging the decision by the district court. Appellee 

McCleskey filed a cross-appeal subsequent to that time. 

On March 28, 1984, this Court ordered that the instant 

case initially be heard by the court sitting en banc. The 

instant brief is filed on behalf of Appellant Zant as the 

initial Drietf. 

(ii) Statement of Facts. 

The evidence presented at Appellee's trial showed that 

on May 13, 1978, he and three codefendants committed a 

robbery at the Dixie Furniture Store in Atlanta, Georgia. 

During the course of the robbery, the Appellee entered the 

front of the store while his three codefendants entered 

the back. Appellee was positively identified at trial as 

one of the participants in the robbery. (7. 231-232, 242, 

  

250.1 

Ion) will be used to refer to the transcript of 
Appellee's trial in the Superior Court of Fulton County. 
(S.H.T.  ) will be used to refer to the transcript of 
the state habeas corpus hearing in the Superior Court of 
Butts County. {F.H.T. ) will be used to refer to the 

transcript of the evidentiary hearing held by the district 
court beginning on August 8, 1983. 

 



  

Following the arrest of the Appellee, he was taken to 

Atlanta, Georgia. On May 31, 1978, the Appellee made a 

confession to the police in which he admitted his 

participation in the robbery, but denied that he shot 

Atlanta Police Officer Frank Schlatt. A Jackson v. Denno 
  

hearing was held at trial and the court determined that 

the confession was freely, intelligently and voluntarily 

entered. {T. 426-505). 

Appellee's codefendant, Ben Wright, testified at trial 

and related the details of the robbery and murder. Ben 

Wright testified that while he carried a sawed-off 

shotgun, the Appellee carried a .38 caliber nickel-plated 

white-handled pistol. (T. 654-656, 648-649). Wright 

testified that codefendant Burney had a blue steel, 

snub-nosed .32 caliber pistol while Dupree had a blue 

steel .25 caliber pistol. (TPT. 649-651). 

While Dupree, Burney and Wright held several employees 

in the back of the store, the Appellee was in front. 

Employee Classie Burnwell had activated a silent alarm, 

resulting in the arrival of Officer Frank Schlatt. 

Shortly after Schlatt entered the front of the store, he 

was shot. After hearing two shots, Wright observed the 

Appellee running out of the front of the store. Wright, 

Dupree and Burney ran out the back. When they all arrived 

at the car, Appellee stated that he had shot the police 

Officer. . (T. 658-9). 

 



  

Mr. Everett New and his wife were stopped in their 

automobile at a red light near the Dixie Furniture Store. 

They observed Officer Schlatt arrive at the scene, saw him 

draw his pistol and enter the store. (T. 330). Mr. New 

stated that approximately thirty seconds later he heard 

two shots and shortly thereafter observed a black man 

running out of the front door carrying a white-handled 

pistol; however, he could not identify that individual. 

{T. 333-333). 

Appellee testified in his own behalf at trial and 

stated that he knew Ben Wright and the other codefendants, 

but that he had not participated in the robbery. He 

relied on an alibi defense, stating that Wright had 

borrowed his car and that the Appellee had spent the day 

at his mother's house and at some apartments in Marietta 

playing cards. Appellee named several people who had been 

present at the apartments, but did not present any of 

those persons for his defense. {r. 811). 

Appellee denied that he made a statement to Lieutenant 

Perry that he had participated in the robbery and stated 

that he made a false statement to Detective Jowers because 

of the alleged evidence the police had against him (two 

witnesses who had identified him, the description of his 

car and a statement from David Burney), because of his 

prior convictions and because he did not have a good 

alibi. {T. 823-4). 

 



  

Appellee was also identifed at trial by two witnesses 

who had observed him take part in a prior, similar 

robbery. Mr. Paul David Ross, Manager of the Red Dot 

Grocery Store had identified the Appellee previously from 

a set of colored photographs. Ross also testified that 

during the course of the Red Dot robbery, his 

nickle-plated .38 revolver was taken. 

Ms. Dorothy Umberger also observed the Appellee during 

the April 1, 1978 robbery of the Red Dot Grocery Store. 

She testified that she was ninety percent certain that the 

Appellee was one of the men who had robbed her. She based 

her identification on viewing him at the scene of that 

crime. Ms. Umberger had also identified the Appellee from 

a photographic display. 

In rebuttal to the defense case, the State presented 

the testimony of Arthur Keissling. This witness testified 

that he had observed the Appellee participating in the 

robbery of Dot's Produce on March 28, 1978. His 

identification of the Appellee was positive. (T. 887-889, 

8396). 

The State also presented the testimony of Offie Gene 

Evans in rebuttal. Mr. Evans had been incarcerated in 

Fulton County jail in a cell located near the Appellee and 

Bernard Dupree. Evans related that the Appellee had 

talked about the robbery while in custody and had admitted 

shooting at «Officer. Schlatt.: (T. 869-870). 

 



  

Further facts will be set forth as necessary to 

address the issue presented by the instant appeal. 

(iii) Standard of Review. 

The instant case presents an issue which is a mixed 

question of fact and law requiring this Court's analysis 

of the issue and application of federal legal principles 

to historical facts found by the lower courts, unless it 

is shown that those findings are clearly erroneous. 

 



  

SUMMARY OF THE ARGUMENT 
  

The district court incorrectly concluded that 

Appellee's rights were violated in the instant case by the 

existence of an alleged deal with witness Offie Evans. 

The record does not support a conclusion that any promises 

were made. Even if the alleged statement were made to 

Evans, it is insufficient to constitute a promise or deal 

which was required to be disclosed to the jury. 

Even 1f this Court were to conclude that a deal 

existed, there was no requirement that this information be 

disclosed in the instant case as it was simply not 

material under the facts of the case. The testimony of 

the witness in question was not such as would justify the 

disclosure of this one statement. Ample impeaching 

evidence had already been introduced at trial concerning 

this witness and the nature of the testimony of the 

witness was not such as to justify the granting of a new 

trial in this case. There is no indication that. the jury 

was misled by the testimony nor is there any indication 

that the prosecution knowingly used perjured testimony. 

The witness in question was not a key witness, but was 

simply a rebuttal witness who tended to corroborate 

certain other testimony that had already been given at 

trial, 

 



  

Thus, no deal existed and even if there were some 

understanding in existence, the fact that this one mere 

statement was not disclosed specifically to the jury is 

insufficient to conclude that a new trial should be 

granted. 

-i10- 

 



  

STATEMENT OF JURISDICTION 
  

Appellant invokes the jurisdiction of this Court 

pursuant to 28 U.S.C. $$ .2253 insofar as this is an appeal 

from the granting of federal habeas corpus relief to a 

state prisoner. 

Wg 

 



  

ARGUMENT AND CITATION OF AUTHORITY 
  

Ie. THERE WAS NO AGREEMENT BETWEEN THE 

PROSECUTION AND WITNESS OFFIE 

EVANS WHICH SHOULD HAVE BEEN 

DISCLOSED TO THE JURY. 

The district court in the instant case granted habeas 

corpus relief based on a conclusion that the jury at trial 

was left with the impression that witness Offie Evans had 

been made no promises which would affect his credibility. 

The court concluded that based on Evans' testimony at the 

state habeas corpus hearing, a promise had been made by a 

detective to speak to federal authorities on Evans' 

behalf. The district court concluded that the testimony 

of Evans was damaging to the Appellee, particularly on the 

issue of malice. The court finally concluded that the 

jury might reasonably have reached a different verdict on 

the charge of malice murder had the alleged promise been 

disclosed. (R. 1225). Appellant submits that these 

conclusions are unfounded. 

At the trial of the instant case, the state presented 

numerous witnesses, including the codefendant of the 

Appellee, Ben Wright, to testify concerning the 

circumstances of the crime. During the initial 

presentation of the state's case, Ben Wright testified as 

to various persons and their participation in the robbery 

<124 

 



and also specifically testified that the Appellee stated 

that the Appellee shot a police officer. In rebuttal to 

the defense testimony, the state presented several 

witnesses, including Offie Gene Evans. Evans did not 

testify any time during the trial except as a rebuttal 

witness. At the beginning of his testimony, the state 

brought out the fact that Evans was presently incarcerated 

in the Federal Penitentiary serving a six year sentence 

for forgery. The state also brought out the fact that 

Evans had been convicted in 1953 for burglary, 1955 for 

larceny, 1959 for carrying a concealed weapon, 1961 for 

burglary, 1962 for burglary and forgery and 1967 for theft. 

During Evans' testimony, he stated that in July of 

1978 he was incarcerated in Fulton County jail. At that 

time he was charged with escape from a federal halfway 

house. Evans testified that the escape charge was still 

pending, but he hoped he would not be prosecuted. When 

asked by Mr. Parker, the Assistant District Attorney, if 

Mr. Parker had made any promises to Evans, Evans stated he 

had not. Evans specifically testified that the federal 

authorities told him they were not going to charge him 

with escape. 

Evans later testified that during his incarceration in 

Fulton County he talked with the Appellee concerning the 

crime. The Appellee told Evans that he went and checked 

out the place to be robbed a few days before the crime.  



  

Evans also testified that the Appellee told him, "but said 

after he [McCleskey] seen the police come in and he was 

heading towards the other three, what was in the court--I 

mean in the place taking the robbery off, he said that he 

couldn't stand to see him go down there, and I think the 

police looked around and seen him and he said, 'Halt,' or 

something, and he had to--it was him or them one, and said 

that ‘he had to shoot.” (TPT. 870). 

Evans also testified concerning a conversation with 

the Appellee about a makeup kit and about the Appellee 

being made up slightly with a makeup kit. Evans finally 

testified that Appellee told him, "It would have been the 

same thing if it had been a dozen of them, he would have 

had to try to shoot higsiway out.™ (7.871). 

On cross examination defense counsel emphasized Evans’ 

criminal history and attempted to portray Evans as a 

professional criminal. Evans testified on cross 

examination that he told the police about the 

conversations with the Appellee because a deputy heard him 

talking. (T. 872). Counsel also cross-examined Evans 

concerning the makeup kit. Evans later testified on 

cross-examination that the deputy asked if Evans wanted 

the deputy to call homicide and would he tell them what he 

had been told. Evans agreed. Evans was then asked what 

he was expecting to get out of telling this to the 

authorities. Evans responded, "just like that I had been 

ns 

 



  

talking to Ben and something like that." (T. 880). The 

defense counsel also pointed out that Evans was seeking to 

protect his own self interest by testifying so that 

suspicion would not be thrown on him based on his 

acquaintance with Ben Wright. The defense counsel also 

asked, "Now, were you attempting to get your escape 

charges altered or at least worked out, were you expecting 

your testimony to be helpful in that?" (T. 882). Evans 

responded, "I wasn't worried about the escape charge. I 

wouldn't have needed this for that charge, there wasn't no 

escape charge." (T. 882). Evans testified that the 

charges were still pending against him but that he did not 

want to get prosecuted for the offense. 

The Appellee called Offie Evans as a witness at the 

state habeas corpus proceeding. Evans testified that he 

had been brought to Fulton County jail in July of 1978 on 

an escape charge from the federal prison system. He 

testified that prior to the time of his testimony he 

talked with two Atlanta Police Officers named Harris and 

Dorsey. He said he did not remember all about the 

conversation he might have had with Dorsey. He also 

testified that he talked with Russell Parker from the 

Fulton County District Attorney's office prior to his 

testimony, just explaining to Mr. Parker the substance of 

his prior conversations with the Appellee. He testified 

15 

 



  

that the detective knew about the escape charges, but he 

did not tell Parker about the charges. (H.T. 119). 

Evans testified that the federal authorities were not 

actually charging him for escape, but with breach of trust 

due to an incident in a halfway house. Evans stated that 

he "wasn't on the run.” {(H.7. 120). He also testified 

before the state habeas corpus court that the charges were 

settled at the federal penitentiary by the committee. He 

testified, "I think it was in August when I went before 

their committee out there and they told me they were going 

to drop the charges.”  (H.?. 121). During further 

questioning, Evans testified that it was either the last 

part of August or around the first of September in 1978 

that he was told by the officials at the federal 

penitentiary that they were going to drop the charges. In 

response ‘to a question by the court, Evans stated, "I 

wasn't promised nothing about--I wasn't nothing by the 

D.A. but the Detective told me that he would--he said he 

was going to do it himself, speak a word for me. That was 

what the Detective told me." (H.T. 122). 

Assistant District Attorney Russell Parker also 

testified for the state habeas corpus court by way of 

deposition. It was noted during that deposition that 

counsel for the Appellee reviewed the file of the district 

attorney prior to trial. Mr. Parker testified that he ‘did 

not recall Detective Dorsey having any role in developing 

-16-—- 

 



  

the testimony of Evans. His only memory was that 

Detective Jowers, Detective Harris and Deputy Hamilton 

were involved. (Parker deposition at 9). He also 

testified that he was unaware of any understanding between 

Evans and any Atlanta Police Department detective 

concerning any favorable recommendation with his federal 

escape charge at the time of the trial. Jd. Mr. Parker 

also testified that he was not aware of any understanding, 

even as of the date of the deposition on February 16, 

1981, that might have existed between any Atlanta Police 

Department detective and Offie Evans. (Parker deposition 

at 10)." ‘Mr. Parker did testify that he apparently later 

talked to someone with the F.B.I. to discover whether or 

not Evans would be prosecuted and ascertained that he 

probably would not. Mr. Parker testified that he had 

never asked anyone to drop a charge and he did not know of 

Offie Evans ever asking anyone to try and get charges 

dropped. 

In regard to this allegation, the state habeas corpus 

court made the following findings and conclusions: 

Mr. Evans at the habeas hearing denied 

that he was promised anything for his 

testimony, (H.T. 122). He did state 

-17- 

 



  

that he was told by Detective Dorsey 

that Dorsey would "speak a word" for 

him. {H.T..122). 

The prosecutor at Petitioner's trial, 

Russell J. Parker, stated that he was 

unaware of any understandings between 

Evans and any Atlanta Police Department 

detectives regarding a favorable 

recommendation to be made on Evans' 

federal escape charge. (Parker 

Deposition, p. 9). Mr. Parker admitted 

that there was an opportunity for 

Atlanta detectives to put in a good 

word for Evans with federal 

authorities. (I&d., p. 18). However, 

he further stated that when any police 

officer has been killed and someone 

ends up testifying for the State, 

putting his life in danger, is not 

surprising that charges, like those 

against Evans, will be dropped. (Id.). 

(State habeas corpus order at 7-8). The state habeas 

corpus court determined that it could not conclude that an 

wr Ye 

 



  

agreement existed "merely because of the subsequent 

disposition of the criminal charges against the witness 

for the State." (State habeas corpus order at 8). The 

court also relied upon the fact that any comment was at 

the most a communication strictly between a detective and 

the witness which was not communicated to Mr. Parker. 

In reviewing the above evidence, Appellant submits 

that there is clearly no evidence of any deal which 

existed. Even assuming that someone did tell Offie Evans 

that he would "speak a word" for him with the federal 

authorities, Appellant submits that this is simply 

insufficient to find any type of deal or agreement which 

was required to be disclosed to a jury. Under the 

circumstances of this case, Appellant submits that this is 

simply not a deal or agreement which was reached which 

would have affected the credibility of the witness. 

In+evaluating this allegation, it is essential to 

examine the underlying purposes behind the various 

doctrines utilized in this area. In Alcorta v. "Texas, 355 
  

U.S. 28 (1957), the Court examined a case in which an 

eyewitness who testified at trial later made a sworn 

statement that he gave false testimony at trial. The 

witness specifically stated that he told the prosecution 

about the information prior to trial, but the prosecution 

told him not to volunteer any information. The 

prosecution admitted being aware of this information. The 

-19- 

 



  

Court concluded that the testimony was seriously 

prejudicial and that it was the only evidence available to 

refute the defense presented. 

Subsequently in Napue v. lllinois, 360 U.S. 264 
  

(1959), the principal state's witness testified at trial 

that no promises had been made for his testimony. 1t 

later developed that the witness had been made promises 

and the state's attorney did not correct the testimony at 

trial. The jury was simply told that a public defender 

would do what he could. The Court was faced with a 

situation in which the State failed to correct known false 

testimony. The Court focused on the extremely important 

nature of the testimony because of the fact that the 

passage of time and a dim light at the scene of the crime 

made any eyewitness identification very difficult and some 

of the pertinent witnesses for the State had left the 

state. The Court noted that the evidence presented was 

largely this witness' testimony. 

The Court concluded that a conviction obtained through 

the use of known false testimony violated the Fourteenth 

Amendment to the United States Constitution. This would 

apply in situations in which the prosecution either 

solicited the testimony or allowed it to go uncorrected. 

The Court noted that the rule did not cease to apply 

merely because the testimony only went to the credibility 

Of the witness. In Napue v. Illinois, the Court noted 
  

20 

 



  

there clearly was testimony at trial that no one offered 

to help the witness outside of an unidentified lawyer in 

the Public Defender's office, who held a considerably 

different position from the prosecutor who had actually 

made the offer. 

In'Giglio v. United States, 405'U.,5. 150 (1972), the 
  

Court examined a case in which the witness in question was 

a coconspirator and was the only witness linking the 

defendant with the crime. The government's attorney 

stated that there had been no promises. In the case one 

assistant attorney had made a promise that if the witness 

testified before the grand jury and at trial he would not 

be prosecuted. ‘This assistant did not try the Case. The 

Court referred to the decision in Napue, supra and noted 
  

that when the reliability of a given witness could well be 

determinative of guilt or innocence, nondisclosure of 

evidence which would affect the credibility of that 

witness fell within the rule of Brady v. Maryland 
  

requiring disclosure of the information. The Court noted 

that the rule did not apply if the information was only 

possibily helpful, but not likely to have changed the 

verdict.  Napue, supra at 269, The Court in Giglio wv. 
  

  

United States focused on the holding of Napue v. Illinois 
  

  

that a new trial would be required if the false testimony 

could in any reasonable likelihood have affected the 

judgment of the jury. In Giglio, the Court noted that 

-DY we 

 



  

without the testimony of that witness, there would have 

been no indictment and no evidence to carry to the Jury: 

therefore, a new trial was required. 

The Fifth Circuit Court of Appeals has also examined 

this issue. In United States v. Cawley, 481 F.2d 702 (5th 
  

Cir. 1973), the court examined a case in which a 

codefendant entered a plea before trial stating that there 

had been no agreement. The codefendant also made the same 

statement at trial. The court cited prior decisions 

requiring a new trial because the jury was unaware of an 

interest that might have influenced the witness 

testimony. The court noted that the prior holdings simply 

meant that the jury must be apprised of a promise which 

induces a key government witness to testify on the 

government's behalf. 1d. at 707.: In United States v. 
  

Cawley, the court recognized that this situation was 

nothing more that a classic plea bargain. The court also 

noted that there was an ample opportunity for the 

defendants to explore the motive of the witness at trial 

and there had been no demonstration that the testimony at 

trial was false. 

Appellant submits that the facts in the instant case 

are clearly distinguishable from the holdings by the 

United States Supreme Court requiring the granting of a 

new trial. In each of the cases cited, the witness in 

question was a key witness to the case. In Alcorta v. 
  

DD 

 



  

Texas, the witness in question presented the only evidence 

to refute the defense presented. In Napue v, Illinois, 
  

supra, the testimony of the witness was noted as being 

extremely important as the witness provided the large part 

of the testimony at trial and made a critical 

identification of the defendant as a participant in the 

crime. In Giglio v, Illinois, the Court noted that 
  

without the testimony of the witness in question, there 

very likely would have been no indictment and no evidence 

to carry tonthe jury. 

In the instant case, contrary to the assertion of the 

district court, the witness in question was not a key 

prosecution witness, but simply a rebuttal witness called 

to corroborate other testimony. The coconspirator had 

already testified concerning the fact that the Appellee 

stated that he shot the victim. The Appellee did not 

raise a defense of lack of malice, but asserted that he 

did not commit the act at all. The district court's focus 

on the testimony of Mr. Evans in relation to the malice 

question places a disproportionate emphasis on the 

testimony of the witness and the importance of the issue 

of malice in the case. No defense was ever urged 

concerning a lack of malice, therefore, the testimony of 

this witness was not critical in this regard. 

Furthermore, there was other testimony from another 

witness that the Appellee committed the crime in question 

ig J 10 

 



  

and fired the fatal shot. Thus, under these 

circumstances, there is a lack of materiality that was in 

existence in the cases decided by the United States 

Supreme Court. Appellant submits that this is sufficient 

in itself to conclude that there was no information which 

should have been disclosed to the jury which was not 

disclosed, even if there is a conclusion that some sort of 

understanding existed. The holding of the Fifth Circuit 

Court of Appeals in United States v. Cawley also noted 
  

that the prior decisions of that Court and the United 

States Supreme Court referred to inducing a key witness to 

testify on the government's behalf. Furthermore, as in 

United States v. Cawley, the defense in the instant case 
  

had ample opportunity to explore the motive of Mr. Evans 

at the time of trial. Such motive was adequately explored 

at trial. 

In United States v. Anderson, 574 F.2d 1347 (5th Cir. 
  

1978), the court noted that the question of materiality 

must be evaluated in light of all of the evidence. The 

court noted that the test was whether there was any 

reasonable likelihood that the information could have 

affected the judgment of the jury. The court also focused 

on the question of whether the testimony of the witness 

would be determinative of guilt or innocence. In the 

instant case, there is clearly no likelihood that one 

sentence that a detective would "speak a word" for Offie 

24 

 



  

Evans to the federal authorities, even if such actually 

was said, would have had any effect on the judgment of the 

jury. This is clearly not a statement that could have 

been determinative of guilt or innocence. 

Further facts to be considered in evaluating the 

instant case is the fact that the jury was given ample 

impeaching evidence both by way of the state and the 

defense during the testimony of the witness. It was 

pointed out by the state that the witness had numerous 

prior convictions and the defense focused on the motive of 

the witness, including his own interst in protecting 

himself. As in the case of United States v. Antone, 603 
  

F.2d 566 (5th Cir. 1979), it was quite apparent to the 

jury that the witness was motivated primarily by self 

interest. The revelation of the statement in the instant 

case, as in that case, would not have been especially 

significant. Thus, the evidence would have been at most 

merely cumulative of other impeaching evidence which was 

already presented. This one statement would "pale in 

significance" when considered in light of all other 

impeaching evidence at trial. United States v. Antone, 
  

supra. Thus, again, the materiality element is simply 

missing. 

As noted by the Eleventh Circuit Court of Appeals, 

"the thrust of Giglio and its progeny has been to ensure 

that the jury know the facts that might motivate a witness 

“dB 

 



  

in giving testimony, and that the prosecutor not 

fraudulently conceal such facts from the jury." Smith v. 
  

Kemp, 715° F.24 1459,°°1467 {11th Cir.), cert. denied, 
  

U.S. + 104 S.Ct, 510 (1983)... The focus is on the 

impact on the jury. The primary concern of the decision 

in Giglio is that the jury not be misled by a knowing use 

of perjured testimony. Id.:; United States v. Meinster, 
  

619 F.2d 1041, 1044-45 (4th Cir. 1980). In the instant 

case, the intent of Giglio would not be served by granting 

Aa new trial. There is clearly no indication that the 

prosecution knowingly used perjured testimony. Offie 

Evans testified at trial that Mr. Parker did not make any 

deals. He was not questioned about any conversations he 

had with any of the detectives. Mr. Parker specifically 

testified, and that testimony has not been contradicted, 

that he knew of no agreements of any sort that Evans had 

made with anyone. Evans testified that he hoped he would 

not be prosecuted. Nowhere in any of the testimony at 

trial has there been any showing that Evans committed 

perjury or that there was any knowing use of perjured 

testimony by the prosecution. Therefore, it is clear that 

the purpose behind the decision in Giglio v. Illinois 
  

would not be served by a reversal in this case. 

Finally, Appellant asserts that no Giglio violation 

occurred under the facts of the instant case because the 

alleged understanding in question was simply inmaterial. 

te TAR 

 



  

According to the testimony of Offie Evans at trial, he had 

been told by the federal authorities that he was not going 

to be charged with escape, although the escape charge was 

still pending. Evans testified again at the state habeas 

corpus hearing that the charges had been settled at the 

federal penitentiary and that he had been told in August 

of 1978 or September of 1978, at least a month prior to 

the Appellee's trial, that the charges for escape were 

going to be dropped. No showing has been made that this 

testimony was false. Therefore, any question of whether 

anyone was going to put in a "good word" for the witness 

was simply irrelevant in: light of the fact that the 

witness had been informed and felt that he would not be 

prosecuted at that time. At no time 4id the witness 

indicate that he felt that this was contingent upon his 

testimony. Therefore, Appellant submits that any question 

of an agreement was made moot by this testimony. 

Appellant submits that the facts of the instant case 

clearly show that there was no agreement reached between 

any member of the prosecution and the witness in 

question. Even if the detective did tell Evans that he 

would "speak a word" for him, this is simply insufficient 

to constitute an agreement requiring disclosure. This 

statement is no more than a recognition of the fact that a 

witness will receive credit where credit is due. The 

testimony at trial clearly shows that sufficient 

wT us 

 



  

impeaching evidence was presented so that any additional 

evidence would be merely cumulative and would be simply 

insignificant to the jury. Furthermore, in light of the 

other evidence presented at trial, the requirement of 

materiality is not met in relation to the testimony of 

this witness. There was ample evidence presented at trial 

to support the finding of malice murder and the testimony 

of this witness was simply corroborative rebuttal 

testimony. The evidence also shows that no false 

testimony was given at trial which should have been 

corrected by any members of the prosecution. Witness 

Evans testified that no deals were made by the prosecution 

and this is a correct statement. Evans also testified at 

trial that he had been informed that the charges were 

going to be dropped. This testimony corresponds to the 

testimony of Evans at the state habeas corpus proceeding. 

Thus, there has been no showing of a knowing use of 

perjured testimony, which is one of the purposes of the 

decisions of the United States Supreme Court. Under all 

of these facts and circumstances, Appellant submits that 

the jury had ample evidence with which to test the 

credibility of the witness and that the witness' testimony 

was simply not important in the decision of the jury. 

Therefore, it is clear that there is no reasonable 

likelihood that this one alleged statement would have 

affected the. judgment of the jury. Therefore, no Giglio 

violation is presented in the instant case. 

 



  

CONCLUSION 
  

For all of the above and foregoing reasons, Appellant 

submits that the judgment of the district court granting 

habeas corpus relief should be reversed. 

MARY BETH WESTMORELAND 

Respectfully submitted, 

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 
Executive Assistant Atidney General 

MARION O. GORDON Fatal ad 
First Assistant Attorn General 

  

  

    WILLIAM EB. HILL, Ja. 
Senior Assistant Attorneyl{/General 

        

   
7 

2 Len KYA 2 72H 
MARY Lf TH WESTMORELAND 

Assistant Attorney General 

    

¥ 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

D0 

 



: 
i 

] 
| 
| 

| 
| 

i 
b 

| 

  

%' 

  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing brief, prior to filing the same, 

by depositing a copy thereof, postage prepaid, in the 

United States Mail, properly addressed upon : 

Robert H. Stroup 
1515 Healey Building 

Atlanta, Georgia. 30303 

John Charles Boger 
le Floor 

99 Hudson Street 

New York, New York 10013 

Timothy K. Ford 

600 Pioneer Building 
Seattle, Washington 98136 

Anthony G. Amsterdam 
New York University Law School 
40 Washington Square, South 
New York, New York 10012 

This [OY day of April, 1984. 

    

   TH WESTMOREL 
Assistant Attorney General 

~30~



  

UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

No. 84-8176 

  

WARREN McCLESKEY, 

Petitioner /Appellee, 
Cross-Appellant, 

Ve 

WALTER D. ZANT, WARDEN, 

Respondent /Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

BRIEF FOR CROSS-APPELLEE AND 

REPLY BRIEF FOR RESPONDENT/APPELLANT 

  

HABEAS CORPUS 

  

MICHAEL J. BOWERS 
Attorney General 

JAMES P. GOOGE, JR. 
Executive Assistant 

ttorney General 

MARION O. GORDON 

First Assistant 
Attorney General 

Please serve: WILLIAM B. HILL, JR. 

Senior Assistant 
MARY BETH WESTMORELAND Attorney General 

132 Sta%ze Judicial Bldg. 
40 Capitol square, S.W. MARY BETH WESTMORELAND 
Atlanta, Georgia 30334 Assistant 

(404) 656-3349 Attorney General 

 



  

STATEMENT REGARDING PREFERENCE 
  

This case is an appeal taken by Walter D. Zant from 

the order of the district court granting habeas corpus 

relief under 28 U.S.C. § 2254 and a cross-appeal filed by 

Warren McCleskey. Under this Court's listing in Appendix 

I to its Rules, this case warrants preference in 

processing and disposition. 

 



  

REASONS WHY ORAL ARGUMENT IS NECESSARY 
  

This case has already been scheduled for the en banc 

calendar on June 12, 1984. 

 



  

TABLE OF CONTENTS 
  

STATEMENT REGARDING PREFERENCE « « ¢ «a « « 

REASONS WHY ORAL ARGUMENT IS NECESSARY « oo 

STATEMENT OF "THE ISSUES  « « ¢ 0 wiv sine 

STATEMENT OF THE CASE « « vo 4 oo 0.5 o s' » 

SUMMARY OF THE ARGUMENT + « 4 ¢ ».¢ » » so» 

STATEMENT OF JURISDICTION vo v's so wo ov =» 

ARGUMENT AND CITATION OF AUTHORITY 

I. THERE WAS NO AGREEMENT BETWEEN THE 

PROSECUTION AND WITNESS OFFIE EVANS 

WHICH SHOULD HAVE BEEN DISCLOSED TO 

THE JU RY LJ LJ LJ LJ Ld Ld LJ Ld - -* LJ -» LJ 

II. THE APPELLEE RECEIVED EFFECTIVE 

ASSISTANCE OF COUNSEL + «ov oiaie is 

-1ii~ 

  

Page 

X i 

- ii 

- 1 

- 3 

. 4 

. 5 

. (3 

” 8 

 



  

III. THE CHARGE OF THE TRIAL COURT WAS 

NOT IMPERMISSIBLY BURDEN-SHIFTING, 

OR WAS AT MOST HARMLESS ERROR . . . 

IV. THE DISTRICT COURT PROPERLY 

CONCLUDED THAT THE APPELLEE HAD 

NOT SHOWN THAT THE DEATH PENALTY 

WAS EITHER ARBITRARILY OR 

DISCRIMINATORILY APPLIED. . » +. « is 

V. THE DISTRICT COURT PROPERLY 

DECLINED TO CONSIDER APPELLEE'S 

ALLEGATION CONCERNING THE 

DEATH-QUALIFICATION OF THE JURY . . 

CONCLUS ION > » LJ Ld LJ . LJ Ld Ld Ld 4 Ld LJ L 4 

CERTIFICATE OF SERVICE sie vo vo 0 ¢ os on so» 

-1vV-— 

18 

20 

66 

67 

69 

 



  

Cases cited: 
  

Adams v. Wainwright, 709 F.2d 1443 
{11th Cir. 1983) ® . ] . ® . . ® eo - ° LJ Ld Re 

  

Barfield v. Harris, 540 F.Supp. 451 ‘ 
{B.D.N.C. 1982) LJ ® LJ LJ Ld LJ A A * - - LJ \d > 

  

Barfield v. Harris, 719 F.24 58 (4th Cir. 1983) 
  

Britton v. Rogers, 631 PF.24 572 (3th Cir, 1980), 
cert. denied, 451 U.8., 939 {1981) i + « + -» 
  

  

EEOC v. Data Point Corp., 570 F.2d 1264 
(5th Cir. 1978) LJ] LJ * LJ ® ® ® L 4 - . Ld - - LJ 

  

EEOC v. Federal Reserve Bank of Richmond, 

698 F.2Q 633 (4th Car, 19837 vie. otis » o » = 
  

Eastland v. TVA, 704 P.24 613 (11th Cir. 1983) 
  

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

Grigsby v. Mabry, 5692 F.Supp. 1273 : 
(E.D. Ark. 1983), ‘hing. en banc ordered, 
Xo. B3=2113 FA 8th Cir. Nov. 8B, 1983. 4. 4 +» « 

  

  

Hutchins v. Woodard, 730 F.2d 953 (4th Cir. 1984) 
  

Johnson v. Uncle Ben's Inc., 628 F.2d 419 
(5th Cir. 1980), cert. denied, 

103 SiCt. 205 HIB Yi via inv wen ie 

  

  

Keeten v. Garrison, 578 F.Supp. 1164 
(W.D.N.C. 1984), appeal pending, 
No. 84-6139 L (4th Cir.) . e . - - ® LJ - « o 

  

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

McCourquodale v. Balkcom, 705 F.2d 1553 
{1ith Cir. 1983) ® eo ° eo [J . [J ° ° ° >» LJ) ° [ 

  

Moore v. Zant, 723 7.28 640 {11th Cir. 1983) . . 
  

Smith v. Balkcom, 660 F.2d 573 

{5th Cir, Unit B: 1981), cert. denied, 

U.5. y JAD3:B. CHIBI I982) 0 Lee 

  

  

SRY w~ 

Page(s) 

24,30 

67 

67 

27 

33 

66,67 

67 

32 

66,67 

passim 

30 

6 

21,66 

 



  

Smith v. Balkcom, 671 F.24 858 
  

  

  

(5th Cir. Unit B 1982) » . ® ° - [J [J [J - - * 24 

Spencer v. Zant, 715 F.2d 1562 (ilth Cir.) 
rehr. en banc granted, F.24 

CTIEh Clr. 1983 Y wa inns Wisieiie eine inn 25 

Spinkellink v. Wainwright, 578 F.2d 582 
(5th Cir. 1978), cert. denied, ? 

440 U.S. 976, rhng. denied 441 U.S. 937 (1979) 20,24,28,66 

  

  

  

  

  

  

Stephens v. Kemp, U.S. 78 1.88.23: 370.4183) 28 

Strickland v. Washington, 35 Cr.L. 3066, 
decided May 14, 1984 . + « « ¢ ¢ oo ¢ a oo oo = 14,16 

Sullivan v. Wainwright, 715 F.2d 316 
{ilth ir. 1983) *» ° * . . . - [J - - » [J - ® 5 

Teamsters v. United States, 431 U.S. 324 (1977) 29 
  

United States v. Cronic, 52 U.8S.L.W. 4560, 

decided May 14, 1984 , 'y se 0's » wwisiie 15 
  

  

Valentino v. U.S. Postal Service, 674 F.2d 56 

(D.C. Cir. 1982) Ld = ° LJ ° . ° [J RA [4 * “ LJ Ld 32 

Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 
420 U.Se 252 L1977) viv sie os sn eo oo atuiin 2,23 

  

  

Washington V. Davis, 426 U.S. 229 (1876) + + « » 23,23 
  

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

{5th Cir. 1981), cert. denied, 
303 S.Ct, 293701082) 4 eo ov vo # oi sievin wins 32 

  

  

Statutes: 
  

28 UeS.Co § 2252 * Ld LJ r Ld Ld LJ ® MN Ld - * r LJ LJ LJ 5 

28 U.S.C. § 2254 - . [J LJ * LJ Ld * Ld Ld Ld Ld - Ld Ld . i,5 

-vi- 

 



  

STATEMENT OF THE ISSUES 
  

l. 

Did the district court incorrectly conclude that the 

Appellee's rights were violated by an alleged deal between 

a witness at trial and the prosecutor? 

2. 

Did the district court properly conclude that Appellee 

received effective assistance of counsel? 

3 

Did the district court properly conclude that the 

charge in the instant case was not impernigsinly 

burden-shifting or, in the alternative, was harmless 

beyond a reasonable doubt? 

4. 

Did the district court properly conclude that Appellee 

had failed to show that the death penalty in Georgia was 

being applied in an arbitrary and capricious manner? 

Be 

Did the district court properly conclude that Appellee 

had failed to prove any inference of racial discrimination 

in Georgia's capital sentencing system? 

 



  

6. 

Did the district court properly conclude that Appellee 

was not entitled to relief on his challenge to the 

"death-qualification" of the trial jury? 

 



  

STATEMENT OF THE CASE 
  

(i) Course of Proceeding. 

The course of proceedings has previously been set 

forth in the initial brief filed on behalf of the 

Respondent-Appellant; therefore, such will not be repeated 

in the instant brief. 

(ii) Statement of Facts. 

The statement of facts has previously been set forth 

in the initial brief of the Respondent-Appellant and will 

not be repeated at this time. 

(iii) Standard of Review. 

All issues presented except for the challenge to the 

death-qualification of the jury, present mixed questions 

of fact and law requiring that this Court apply a 

presumption of correctness to state factual findings and 

the clearly erroneous rule to factual findings by the 

district court, The issue concerning the 

death-qualification of the jury is precluded by prior 

decisions of this Court and, thus, is solely a legal claim. 

 



  

SUMMARY OF THE ARGUMENT 
  

The district court incorrectly concluded that 

Appellee's rights were violated in the instant case by the 

existence of an alleged deal with Witness Offie Evans. 

The record does not support a conclusion that any promises 

were made. Furthermore, the testimony of Evans was not 

critical at trial and the existence of any alleged deal 

was not material as there was ample impeaching evidence 

presented. 

The district court properly concluded that the 

Appellee received effective assistance of counsel or that 

no actual and substantial prejudice had been shown. The 

actions of counsel were reasonably effective under the 

circumstances of this case and any actions or omissions on 

the part of counsel did not prejudice the defense. 

The district court properly concluded that the charge 

given to the jury did not impermissibly shift the burden 

of proof. Said charge was permissive at most and created 

only a permissive inference for the jury. Furthermore, 

under the facts of this case, the charge would have been 

at most harinless error. 

The district court properly applied controlling legal 

precedent in evaluating the complaints of arbitrariness 

and discrimination in the application of the death 

penalty, The district court properly concluded that any 

 



  

Eighth Amendment claim was foreclosed by law and also 

specifically noted that the evidence did not establish any. 

claim of arbitrariness. The analysis by the court of the 

data and methodology was correct in light of the facts 

presented to the court. The district court also properly 

concluded that the underlying data was not sufficiently 

accurate and that the methodology utilized concerning the 

nature of the data was not appropriate. The Appellant 

presented a case which clearly disputed the accuracy of 

the data and the soundness of the underlying methodology 

utilized so that any conclusion reached by the experts of 

the Appellee were not worthy of credibility. Furthermore, 

the Appellant also presented a plausible rival hypothesis 

which was sufficient to rebut a prima facie case even had 
  

one been presented. 

The district court properly dismissed the challenge to 

the death-qualification of the jury. This Court has 

previously considered this allegation and ruled adversely 

to the Appellant. No reason has been shown which would 

justify this Court's reconsidering this issue at this 

stage in the proceedings. 

STATEMENT OF JURISDICTION 
  

The jurisdiction of this Court is invoked pursuant to 

28 U.S.C. § 2253 as this is an appeal from the granting of 

habeas corpus relief under 28 u.s8.C. § 2254. 

~ 

 



ARGUMENT AND CITATION OF AUTHORITY 
  

THERE WAS NO AGREEMENT BETWEEN THE 

PROSECUTION AND WITNESS OFFIE 

EVANS WHICH SHOULD HAVE BEEN 

DISCLOSED TO THE JURY. 

Appellee has asserted in his brief that the testimony 

of Offie Evans was critical to the issue of malice. He 

has also asserted that Evans' testimony at trial was false 

and evasive. In support of his assertion, Appellee cites 

to certain cases by this Court, showing that promises made 

to other law enforcement officials do constitute 

violations of Giglio v. United States, 405 U.S. 150 
  

(1972). Appellee has cited to the decision of this Court 

in Moore v., Zant, 722 F.24 640.-4{11lth Cir. 1983). In that 
  

case, the court simply noted that there was an assertion 

that a key prosecution witness had been promised that his 

probation would not be revoked in exchange for his 

testimony. The court noted that if such a promise had 

existed and was suppressed, there would have been a Giglio 

violation. In the instant case, Appellant submits that 

there is no evidence which would justify the finding of 

any such agreement between any police officer or member of 

the district attorney's office and the witness in 

question. Furthermore, the witness in question in Moore, 

supra, was a key prosecution witness. In the instant  



  

case, Evans was merely a rebuttal witness whose testimony 

only served to corroborate testimony given during the 

initial portion of the state's case, particularly, the 

testimony of Ben Wright. 

Appellant would further reemphasize the argument made 

previously in the initial brief that the jury was 

presented with a multitude of impeaching evidence other 

than any alleged agreement. The defense had ample 

opportunity to explore the motive of the witness at the 

time of the trial and did so. The testimony of Evans was 

not material in light of all the evidence presented at 

trial. Furthermore, the testimony of the witness would 

not be determinative of guilt or innocence, particularly 

in light of the other impeaching evidence presented at 

trial. See United States v. Anderson, 574 F.24 1347 (5th 
  

Cir. 1978). 

As noted in the initial brief submitted by the 

Appellant, it was quite apparent that the witness had a 

motivation of self interest from all the evidence 

presented to the jury. Furthermore, the primary defense 

asserted was not.one of lack of malice, but a defense that 

the Appellee was simply not the person who committed the 

crime. Thus, even if a police officer made a statement 

that he might "speak a word" for the witness, this 1s 

insufficient to constitute an agreement which should have 

been disclosed and is not material so as to justify a 

 



  

reversal. Thus, the district court erred in granting 

habeas corpus relief on this issue. 

Il. THE APPELLEE RECEIVED EFFECTIVE 

ASSISTANCE OF COUNSEL. 

Appellee has asserted that he received ineffective 

assistance of counsel. He has asserted that his attorney 

failed to interview certain witnesses and failed to 

investigate certain documentary evidence. He also asserts 

that his attorney failed to investigate the confession 

given by the Appellee while in prison. Appellee further 

finds fault with certain findings of the district court 

concerning the line of defense offered. Appellee finally 

challenges counsel's failure to object to the introduction 

of three life sentences as being ineffective and also 

failing to pursue other avenues concerning mitigation. 

Certain other allegations have been raised concerning the 

effectiveness of counsel. 

At the state habeas corpus evidentiary hearing, 

Appellee's trial attorney, John.M. Turner, testified that 

he had been retained by the Appellee's family prior to the 

preliminary hearing in Fulton County. At that preliminary 

hearing Turner had an opportunity to cross-examine at 

least three of the employees of the Dixie Furniture 

Company and two of the state's investigating officers who 

were later called as witnesses at trial. Turner also 

 



  

consulted with the Appellee on at least a dozen occasions 

prior to trial, and had numerous conversations with the 

assistant district attorney who was prosecuting the case. 

Additionally, Turner testified that he had an opportunity 

to thoroughly review the district attorney's file, which 

included statements of the various state's witnesses. 

Turner did not interview certain witnesses because he 

did not believe their testimony would have been materially 

beneficial. All of those individuals were forced into a 

back room at the furniture store and none were able to see 

who actually left the room or who shot Officer Schlatt. 

The value of their testimony would have been negligible, 

particularly in light of the overwhelming evidence showing 

that Appellee was the only robber in the front of the 

store when the shots were fired and in light of Appellee's 

own statements to codefendant Wright wherein he admitted 

that he shot Officer Schlatt. 

Witness Dan Oliver testified at trial and was unable 

to verify the number of robbers who actually remained in 

the back room because he was lying face down on the 

floor. (T. 269, 282-3). He knew that there were at least 

three zobbeks in the room and, although he testified that 

he heard footsteps running after the shots were fired, 

when questioned by defense counsel in an attempt to elicit 

that others may have been in the front of the store, 

Oliver verified that he could not tell from which 

 



  

direction the footsteps had come. (T. 282-3). Turner 

reasonably relied upon the statements of the witnesses 

contained in the district attorney's file and concluded 

that these witnesses were not in a position to accurately 

observe or hear anything that could be exculpatory to his 

client, and especially in light of Appellee's testimony at 

trial and insistence that he was not even present at the 

time the crime occurred. 

It is also inconceivable that the defense would have 

benefited to any great extent even if defense counsel had 

talked with Offie Evans. The state made no secret of 

Evans' past criminal record and made no secret of the 

status of the alleged escape charges. Turner 

cross-examined Evans about the criminal escape charges and 

Evans stated that his cooperation was not related to any 

such charge. Turner also had no reason to believe that 

Appellee made any statements while incarcerated because 

Appellee specifically told him that he had not spoken to 

anyone while in Fulton County jail regarding the incident 

and Turner also specifically instructed his client not to 

do so. 

A pretrial interview of ballistics expert Kelly Fite 

would not necessarily have been any more productive than 

Turner's cross-examination at trial. Fite's testimony 

related to the fact that bullet fragments were removed 

from the victim's body and were probably fired from the 

“10% 

 



  

same Rossi .38 caliber special revolver introduced at 

trial. Turner delved into this issue on cross-examination 

and Fite's identification of the murder weapon as a 

Rossi. The fact that Fite stated in a deposition taken 

two years after the trial that it was possible that a 

weapon other than a Rossi was the murder weapon does not 

cast any material doubt on the jury's verdict. 

The record also shows that counsel thoroughly 

cross-examined QOffie Evans concerning his prior background 

and the possibility of any agreement with the 

authorities. Mr. Turner also testified that he had gone 

over the Appellee's background with him and asked the 

Appellee if he had any witnesses or knew of anyone who 

would be able to testify as to his character at the 

sentencing phase of the trial. (H.T. 80). Turner had 

also spoken to Appellee's sister who declined to testify 

and was also unable to give him any other names. Turner 

was also told that Appellee's mother could not testify 

because of an illness. Part of the problem of finding 

character witnesses resulted from Appellee's criminal 

record and previous incarcerations. Turner also testified 

that the names of the witnesses in the affidavits 

presented by Appellee at the state habeas corpus hearing 

had never been given to him. | 

Appellee also submits that Turner should have objected 

to the introduction of three life sentences at trial. 

=11~ 

 



Clearly, the Appellee himself could have informed Turner 

as to the fact that he was not under a life sentence for 

these offenses. Furthermore, Appellee has never denied 

committing the offenses and in fact later pled guilty to 

the offenses. 

The district court considered the various allegations 

of ineffective assistance of counsel. In considering the 

possible defenses that could have been utilized, the 

district court noted that counsel was faced with two 

plausible lines of defense, that is, an alibi defense or a 

defense that the Appellee participated in the robbery but 

was not the actual triggerman. "Pursuing the second 

defense would almost have guaranteed a conviction for 

armed robbery and felony murder, for which petitioner 

could have still received the death penalty or at least 

life imprisonment." McCleskey v. Zant, 580 F.Supp. 338, 
  

399 (N.D. Ga. 1984). As noted by the district court, a 

successful alibi defense offered the promise of no 

punishment. The district court focused on trial counsel's 

testimony at the state habeas corpus hearing that the 

Appellee had repeatedly insisted that he was not present 

at the scene of the crime, Thus, the district court 

concluded that the decision to pursue an alibi defense was 

reasonable and did not constitute ineffective assistance 

of counsel. Thus, the decision not to interview certain 

store employees was also a reasonable strategic choice in 

light of the choice of defenses.  



  

The district court also specifically found that 

counsel did not act unreasonably in failing to interview 

Offie Evans prior to trial. Counsel reasonably relied 

upon Appellee's assertions that he made absolutely no 

incriminating statements to anyone in Fulton County jail. 

Id. at 400. The district court also concluded that 

counsel was not ineffective for failing to interview Kelly 

Fite. 

The district court went on to examine the failure of 

trial counsel to object to the admission of certain 

convictions. The district court specifically did not find 

that counsel was ineffective for failing to object to the 

admission of these documents. The court simply assumed 

for that moment and for the purposes of its analysis that 

the failure to object might have constituted ineffective 

assistance of counsel. The court then went on to find 

that the Appellee could not show actual and substantial 

prejudice. The district court found the following: 

First, the Petitioner does not content 

that he was not guilty of those 

crimes. In fact, after being granting 

a new trial he pleaded guilty to them 

and received an 18-year sentence. The 

court has already held that under 

Georgia law those crimes were 

-13~ 

 



  

admissible to show that Petitioner 

engaged in a pattern or practice of 

armed robberies. The court cannot say 

that counsel's failure to object to the 

introduction of the evidence at the 

guilt stage caused Petitioner actual 

and substantial prejudice. 

Id. at 401. The court also went on to conclude that it 

was not prepared to determine that the failure to object 

was prejudicial even at the sentencing phase or at least 

warranted a new trial considering all of the evidence 

presented. 

In relation to the sentencing phase of the trial, the 

court concluded, "a review of trial counsel's testimony at 

the state habeas hearing convinces this court that counsel 

made a reasonable effort to uncover mitigating evidence 

but could find none. Petitioner's sister declined to 

testify on her brother's behalf and told counsel that 

Petitioner's mother was unable to testify because of 

iilness." .1d. at 402. Thus, the district court found 

that there was no actual and substantial prejudice due to 

any alleged ineffective assistance at the sentencing phase. 

The Supreme Court of the United States has recently 

examined the standards to be applied in evaluating the 

effectiveness of trial counsel. Strickland v. Washington, 
  

itty (1, #0 

 



  

35 Cr.L. 3066, decided May 14, 1984; United States Vv. 
  

Cronic, 52 U.S.L.W. 4560, decided May 14, 1984. In 

Strickland v. Washington, supra, the Court noted, "An 
  

accused is entitled to be assisted by an attorney, whether 

retained or appointed, who plays the role necessary to 

ensure that the trial is fair.” J4&, at 3071. The Court 

held as a standard that, "the benchmark for judging any 

claim of ineffectiveness must be whether counsel's conduct 

so undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having 

produced a just result.” 1d. The Court concluded that 

the same principles applied to a capital sentencing 

proceeding. 

In United States v. Cronic, the Court noted: 
  

The right to the effective assistance 

of counsel is thus the right of the 

accused to require the prosecution's 

case to survive the crucible of 

meaningful adversarial testing. When a 

true adversarial criminal trial has 

been conducted--even if defense counsel 

may have made demonstrable errors--the 

kind of testing invisioned by the Sixth 

Amendment has occurred. 

215. 

 



  

Id. at 4562, The Court also noted that the right to 

effective assistance of counsel was recognized not for its 

own sake, but because of the "effect it has on the ability 

of the accused to receive a fair trial." -Id. The Court 

specifically presumed that a lawyer was competent. 

The claim of ineffective assistance of counsel has two 

components that must be met before there is a requirement 

of reversal. A petitioner must show that the performance 

of counsel was deficient. "This requires showing that 

counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by 

the Sixth Amendment." Strickland v. Washington, supra at 
  

3071. In addition to this requirement, there must be a 

showing that the deficient performance prejudiced the 

defense. “This requires showing that counsel's errors 

were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable,” I&, Both 

showings must be made, otherwise it cannot be found that 

the conviction or sentence resulted "from a breakdown in 

the adversarial process that renders the result 

unreliable.” Id. In examining counsel's performance, it 

must be considered whether the assistance was reasonable 

considering all the circumstances. Id. 

A defendant must also do more than show that the 

errors had some conceivable effect on the outcome of the 

proceeding. "The defendant must show that there is a 

S16 

 



  

reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceedings would 

have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome." Id. As to a conviction, the question then 

becomes, "whether there is a reasonable probability that, 

absent the errors, the factfinder would have had a 

reasonable doubt respecting guilt." Strickland v. 
  

Washington, supra at 3072. When a challenge is made to a 
  

sentence, the question is "whether there is a reasonable 

probability that, absent the errors, the sentencer . . . 

would have concluded that the balance of aggravating and 

mitigating circumstances did not warrant death." Id. 

Appellant submits that an evaluation of the facts of 

the instant case in light of the above standards clearly 

shows that counsel rendered reasonably effective 

assistance of counsel. The evidence clearly does not show 

that counsel acted in an unprofessional or unreasonable 

manner. Counsel conducted an adequate investigation into 

the chosen line of defense and made a reasonable tactical 

decision to pursue that line of defense. Counsel further 

made a reasonable investigation into possible mitigating 

circumstances and was precluded from discovering any 

further such circumstances due to Appellee's own actions. 

Furthermore, Appellee is simply unable to show the 

required prejudice as set forth under the above standard 

-17 = 

 



from any actions or omissions on the part of counsel. 

Thus, this allegation is clearly without merit as the 

Appellee can point to no areas of counsel's performance 

which undermined the reliability of the finding of guilt 

or the sentence of death. 

III. THE CHARGE OF THE TRIAL COURT WAS 

NOT IMPERMISSIBLY BURDEN-SHIFTING, 

OR WAS AT MOST HARMLESS ERROR. 

Appellee has asserted that the charge of the trial 

court was impermissibly burden-shifting under Sandstrom v. 
  

Montana, 442 U.S. 510 (1979). Appellee has also asserted 

that the charge was not harmless error, challenging the 

finding of the district court. The challenged portion of 

the charge is cited in the district court's opinion in 

footnote 21. 

In light of directions from this Court and the fact 

that several cases involving allegations of Sandstrom v. 
  

Montana violations are being considered by this Court en 

banc, Appellant will present a very brief argument on this 

issue. 

This charge should be compared to the one in Lamb v. 

Jernigan, 683 F.24 1332 (11th Cir. 1982). Although the 
  

charge is not identical, the holding by the panel in that 

case is particularly relevant to the charge in the instant 

case. The court specifically referred to the charge on  



  

the presumption of innocence and on the state's burden of 

proof beyond a reasonable doubt. The panel also referred . 

to the fact that the jury was instructed that intent was 

an essential element to be determined by the evidence. 

Those instructions were also present in this case. Thus, 

the charges reduced the likelihood that any instruction 

might be misinterpreted as being a burden-shifting 

presumption. This is also similar to the conclusion 

reached in Tucker v. Prancis, 723 7.24 1504 (llth Cir, 
  

1984), rhng. en banc granted. Appellant submits that the 
  

reasoning in Tucker v. Francis is more appropriate than 
  

the reasoning in Franklin v. Francis, 720 F.2d 1206 (11th 
  

Cir. 1983). As found by the district court, the 

instruction in the instant case when considered in context 

of the entire charge "created only a permissive inference 

that the jury could find intent based upon the facts and 

circumstances of the case and thus did not violate 

Sandstrom." McCleskey v. Zant, supra at 387. 
    

Furthermore, even if the charge in the instant case 

were impermissibly burden-shifting, the charge is clearly 

harmless beyond a reasonable doubt. The evidence was 

overwhelming that the Appellee was present at the robbery 

and that he was the only one of the robbers who was in the 

part of the store from which the shots were fired. There 

was also evidence that the Appellee was the only one 

carrying the type of weapon that killed the victim. 

-19= 

 



  

Furthermore, there was also the testimony of Ben Wright 

that the Appellant admitted killing Officer Schlatt. 

Thus, in light of this overwhelming evidence, the charge 

in the instant case was harmless beyond a reasonable 

doubt, if it was error at all. 

IV. THE DISTRICT COURT PROPERLY 

CONCLUDED THAT THE APPELLEE HAD 

NOT SHOWN THAT THE DEATH PENALTY 

WAS EITHER ARBITRARILY OR 

DISCRIMINATORILY APPLIED. 

Appellee has contended that the Georgia death penalty 

statute is being applied arbitrarily and capriciously in 

violation of the Eighth and Fourteenth Amendments to the 

United States Constitution. As noted by the district 

court, "he concedes at this level that the Eighth 

Amendment issue has been resolved adversely to him in this 

circuit." McCleskey v. Zant, supra, 580 F.Supp. at 346. 
  

Thus, the district court specifically did not address the 

Eighth Amendment claim based upon Appellee's concession 

before that court. Furthermore, in Spinkellink wv. 
  

wainwright,+378 F.24 582 (5th Cir, 1978), the court 
  

virtually concluded that an Eighth Amendment challenge 

would not stand because "if a state follows a properly 

drawn statute imposing the death penalty, then the 

arbitrariness and capriciousness . . . condemned in Furman 

“20 

 



  

have been conclusively removed." Smith v. Balkcom, 660 
  

FP.24 573, 584 {5th Cir. Unit B 1981), quoting Spinkellink 
  

v. Wainwright, supra. Thus, the district court properly 
  

determined that the only issue presented was a Fourteenth 

Amendment challenge. 

A. The Standard. 
  

It is well-recognized that "a statute otherwise 

neutral on its face, must not be applied so as to 

invidiously discriminate on the basis of race." 

Washington v. Davis, 426 U.8. 229, 241 (1978), citing Yick 
  

  

Wo v. Hopkins, 118 U.S. 356, 369 (1886), . In making a 
  

challenge to an action as discriminatory, however, the 

challenge must go further than simply identifying a 

disparate impact. There must be proof that the challenged 

action was the product of discriminatory intent. Village 

of Arlington Heights v. Metropolitan Housing Development 
  

Corp., 429 U.S. 252, .265 (1977); Washington v. Davis, 
  

supra at 240-42. The Court in Village of Arlington 
  

Heights also recognized that it must be established that 

the challenged decision was at least partially motivated 

by a discriminatory purpose. Id. at 266. 

The Pifth Circuit Court of Appeals addresssd a 

challenge of this nature in Spinkellink v. Wainwright, 578 
  

F.24 582 (5th Cir. 1978). The Court analogized the 

challenge to the alleged discriminatory application of the 

wD] 

 



  

death penalty to an allegation that the death penalty was 

imposed arbitrarily and capriciously. The court held the 

following: 

As we previously noted, this Court 

reads Furman, Gregg, Proffitt, Jurek, 
  

Woodson and Roberts as holding that if 

a state follows a properly drawn 

statute in imposing the death penalty, 

then the arbitrariness and 

capriciousness -- and therefore the 

racial discrimination -- condemned in 

Furman (footnote omitted) have been 

conclusively removed (footnote omitted). 

1d. at 613-614. 

The court then went on to address the equal protection 

claims raised by the Petitioner. In particular, the Fifth 

Circuit noted the holding by the Supreme Court of the 

United States in Washington v. Davis that "the central 
  

purpose of the Equal Protection Clause of the Fourteenth 

Amendment is prevention of official conduct discriminating 

on the basis of race. Our cases have not embraced the 

proposition that a law or other official act, without 

regard to whether it reflects a racially discriminatory 

purpose, is unconstitutional solely because it has a 

racially disproportionate impact." Id. at 326 (emphasis 

in original). 

gir 

 



  

The Court then went on to note that an invidious 

discriminatory purpose could be inferred from the totality. 

of the relevant facts, but held the following: 

Nevertheless, we have not held that a 

law, neutral on its face and serving 

ends not otherwise within the power of 

government to pursue is invalid under 

the Equal Protection Clause simply 

because it may affect a greater 

proportion of one race than of 

another. Disproportionate impact is 

not irrelevant, but it is not the sole 

touchstone of an invidious racial 

discrimination forbidden by the 

Constitution. Standing alone, it does 

not trigger the rule ., '. . that racial 

classifications are to be subjected to 

the strictest scrutiny and are 

justifiable only by the weightest of 

considerations. 

Washington v. Davis, supra at 242, quoted in Spinkellink, 
  

  

supra at 615. 

In Village of Arlington Heights, supra, the Court 
  

reaffirmed the position that "official action will not be 

held unconstitutional solely because it results in a 

“23 

 



  

racially disproportionate impact." Id. at 165, The Court 

specifically concluded that "proof of racially 

discriminatory intent or purpose is required to show a 

violation of the Equal Protection Clause.” 14, 

The Fifth Circuit Court of Appeals more recently 

addressed the ruling in Spinkellink, supra and concluded 
  

"in some instances, circumstantial or statistical evidence 

of racially disproportionate impact may be so strong that 

the results permit no other inference but they are the 

product of a racially discriminatory intent or purpose." 

Smith v. Balkeeom, 671 F.24 852,859 (5th 'Cir. Unit B 1982), 
  

This Court addressed this issue in Adams V. 
  

Wainwright, 709 F.2d 1443 (llth Cir, 1983), The Court 
  

held the following: 

Disparate impact alone is insufficient 

to establish a violation of the 

Fourteenth Amendment. There must be a 

showing of an intent to discriminate 

. uw Wonly- if the evidence Of disparate 

impact is so strong that the only 

permissible inference is one of 

intentional discrimination will it 

alone suffice. 

ia. In that case, the Court noted that the Florida 

statute, like the Georgia statute, was unquestionably 

 



  

neutral on its face and that the petitioner had not shown 

any evidence that the death sentence in his case was the 

product of intentional discrimination. 

The intentional discrimination which the law requires 

to be shown cannot generally be shown by statistics 

  

alone. Spenceriv. Zant, 715 rP.24 1562, 1581 (llth Cir.) 

rehr. en banc granted, F:24 {llth Cir. 1983). 
    

Disproportionate impact alone is insufficient to establish 

a Fourteenth Amendment violation unless the evidence is so 

strong that the only permissible inference is one of 

intentional discrimination. Sullivan v. Wainwright, 715 
  

P.24 316 (11th Cir. 1983%. 

Finally, in a dissent to the granting of a stay of 

execution in a capital case, Justice Powell stated the 
4 

following: 

The Baldus study, relied upon by 

Stephens, has not been presented to 

us. It was made in 1980 and apparently 

has been available since 1982. 

Although characterized by the judges of 

the Court of Appeals who dissented from 

the denial of rehearing en banc, as a 

*particularized statistical study” 

claimed to show "intentional race 

discrimination," no one has suggested 

ha 0 

 



  

that the study focused on this case. A 

"particularized" showing would require 

-— as I understand it -- that there was 

intentional race discrimination in 
  

indicting, trying and convicting 

Stephens, and presumably in the state 

appellate and state collateral review 

that several times followed the trial. 

If the Baldus study is similar to the 

several studies filed with us in 

Sullivan v. Wainwright, U.S. 7. 78 
  

1..BE4,28 266, 104 S.Ct. 90 (1983), the 

statistics and studies of this kind, 

many of which date as far back as 1948 

are merely general statistical surveys 

that are hardly particularized with 
  

respect to any alleged "intentional" 

racial discrimination. Surely, no 

contention can be made that the entire 

Georgia judicial system, at all levels, 

operates to discriminate in all cases . 

. « « As our subsequent cases make 

clear, such arguments cannot be taken 

seriously under statutes approved in 

Gregg. 

Stephens v. Kemp, U.S. 728 L.Ed. 24 370,374 n,'2 
  

(1983) (emphasis in original). 

-20— 

 



  

what all of the above decisions make clear is that in 

order to establish the allegation presented in the instant 

case, there must be a particularized showing of 

intentional discrimination in this case. Regardless of 

whether the allegation is couched in terms of an Eighth 

Amendment claim or a Fourteenth Amendment claim, the 

standard is still the same, otherwise there would be no 

purpose in requiring a showing of intentional 

discrimination. In order to make such a showing of 

intentional discrimination, the mere showing of a 

disparate impact state-wide is clearly insufficient. 

B. Standing. 
  

Appellant also submits that Appellee lacks standing in 

the instant case. At least one circuit court has 

recognized that statistical evidence based on the race of 

the victim is not sufficient to grant standing to a 

petitioner presenting the claim. See Britton v. Rogers, 
  

631 F.2d 572° {5th Cir. 1980), cert. denied, 451 U.S. 939 
  

(1981). 

In Briscoe v. Lahue, D.S. ;  103-8.Ct.' 1108 
  

(1983), the Court considered the historical progress of 

the Civil Rights Act and the Equal Protection Clause. The 

Court referred to the legislative debate on the Klu Klux 

Klan Act of 1871. In so doing, the Court acknowledged, 

"it is clear from the legislative debate that in the view 

wT 

 



  

of the act's sponsers, the victims of Klan outrages were 

deprived 'equal protection of the laws' if the perpetrator, 

systematically went unpunished." Id. at 1117. The Court, 

however, did not state that the remedy for such a 

situation, if indeed such a situation were found to exist, 

was to abolish an existing statute which was racially 

neutral on its face. The Court did not prohibit the 

prosecution of black offenders for crimes against white 

victims, but rather sought to uphold the statutes 

providing for punishment of those hindering the 

prosecution of white defendants who committed crimes 

against black victims. Nowhere has the Court indicated 

the remedy would be to not punish black defendants. The 

focus has been on the appropriate punishment to be given 

to white defendants or perpetrators of crimes against 

black victims. 

Under these holdings, Appellee's standing, is 

questionable. The decision by the Fifth Circuit Court of 

Appeals in Spinkellink, supra, while appearing to grant 
  

standing in these situations, does not conclusively 

resolve this issue. Spinkellink, supra at 612 n. 36. 
  

Ce STATEWIDE DATA 
  

Assuming that Appellee has standing in the instant 

case and that statewide data has some relevance to the 

Whe {I 

 



  

allegation presented, Appellant asserts that the statewide 

data presented is clearly insufficient to require a 

finding of discrimination in the application of the 

Georgia death penalty statute as found by the district 

court. 

1. “USE OF STATISTICS 
  

The studies by Professor Baldus submitted by the 

Appellee rely upon statistical evidence to support the 

contentions of racial discrimination. Statistical 

evidence itself is simply another form of circumstantial 

evidence. It has also been said that "statistics are not 

irrefutable; they come in infinite variety and, like any 

other kind of evidence, they may be rebutted. In short, 

their usefulness depends upon all the surrounding facts 

and circumstances." Teamsters v. United States, 431 U.S. 
  

324, ‘3400 {1%77). 

In evaluating the statistical evidence presented, the 

district court recognized several specific conventions 

that have been applied in the use of statistics in various 

courts. The first convention that the district court 

recognized which has been set forth in death penalty cases 

is that "any statistical analysis must reasonably account 

for racially neutral variables which could have produced 

the effect observed." McCleskey v. Zant, supra at 350, 
  

citing Smith v. Balkcom, supra; Spinkellink v. 
  

  

=00. 

 



  

Wainwright, supra; McCourguodale v. Balkcom, 705 F.2d 
  

1553, 1556 (llth Cir. 1983) : 

The district court went on to note a second convention 

applied in challenges under the Equal Protection Clause, 

which is "that the statistcal evidence must show the 

likelihood of discriminatory treatment by the 

decision-makers who made the judgments in question." Id., 

citing Adams v. Wainwright, supra; Maxwell v. Bishop, 398 
  

  

F.2d 138 (8th Cir. 1968) (Blackmon J.), vacated on other 
  

grounds, 398 U.S. 262 (1970). The third convention 

recognized by the district court is that the underlying 

data must be shown to be accurate. The court then went on 

to note that the fourth convention was that the results 

should be statistically significant. “Generally, a 

statistical showing is considered significant if its D>’ 

value is .05 or less, indicating that the probability that 

the result could have occurred by chance is 1 in 20 or 

less. Said another way, the observed outcome should 

exceed the standard error éstimate by a factor of two. 

Eastland v. TVA, 704 F.2d 613, 622 n. 12 (llth Cir. 
  

1983)." McCleskey v. Zant, supra at 350. Appellant 
  

submits that a fifth convention which should be recognized 

is that the statistical data should be adjusted to the 

appropriate geographical unit in order toO be 

particularized. 

«30 

 



  

The statistical analysis utilized primarily by 

Professor Baldus is a multiple regression analysis. The 

district court noted that only six appellate decisions 

could be found where a party had relied upon multiple 

regression analysis. In the two of those in which the 

party utilizing the analysis prevailed, the showings were 

supported by additional evidence outside of the multiple 

regressions. The district court also specifically noted 

that courts have placed restrictions on the use of 

multiple regression analysis. "It must first be shown the 

model includes all of the major variables likely to have 

an effect on the dependent variable. Second, it must be 

shown that the unaccounted-for effects are randomly 

distributed throughout the universe and are not correlated 

with the independent variables included. Eastland, supra 
  

at 704." Id. at 350. 

A further problem with the use of multiple regression 

analysis is the fact that one is attempting to build a 

model of reality and then control for independent 

variables while measuring the effect of a variable of 

interest upon 2 dependent variable. In order to De 

meaningful, the model utilized would have to be 

constructed with someone knowing how the decision-making 

process in question functioned. See Eastland v. TVA, 704 
  

F.2d 613, 623 (llth Cir. 1983). Furthermore, multiple 

regression will be rejected if it does not show the effect 

yy ow 

 



  

on people similarly situated. EEOC v. Federal Reserve 
  

Bank of Richmond, 698 F.2d 633, 656-8 (4th Cir. 1983), 
  

appeal pending; Valentino v. U.S. Postal Service, 674 F.2d 
  

56, 70 (D.C. Cir. 1982). If the regression model ignores 

information that is central to an understanding of the 

particular causal relationships in question, the mcdel 

would be insufficient to raise an inference of 

discrimination. Valentino, supra at 71. Furthermore, the 
  

validity of the model utilized requires a showing that it 

predicts the variations in the dependent variable to some 

substantial degree. A prediction of only 52 percent or 53 

percent of the variation would not be considered very 

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

405. (5:+hi{Cir, 1981), cert. denied, 102 8.0t. 293 (1982). 
  

"To sum up, statistical evidence 1s circumstantial in 

character and its acceptability depends on the magnitude 

of the disparity it reflects, the relevance of its 

supporting data, and other circumstances in the case 

supportive of or in rebuttal of a hypothesis of 

discrimination." EEOC v. Federal Reserve Bank of 
  

Richmond, supra at 646-47. 
  

Once a prima facie statistical case 1s made, a 
  

defendant may then go forward with evidence either showing 

a non-discriminatory explanation or may show that the 

statistical proof presented is unacceptable. Johnson v. 
  

  

Yncle Ben's Inc., 628 F.2d 419 (5th Cir, 1980), cert, 

233 

 



  

denied, 103 S.Ct. 293 (1982). The defendant may use the 

statistics relied upon by the plaintiff to form a rebuttal. 

case, for example, by showing that the analysis is not the 

product of good statistical methodology. EEOC v. Data 
  

Point Corp., 570. F.24:1264 {5th Cir. 1978). uThus, a 
  

petitioner utilizing statistics to demonstrate a prima 

facie case must show that the data is sufficiently 

accurate and that the model utilized for the regression is 

properly constructed. Thus, all these factors must be 

kept in mind in order to analyze the statistical analysis 

presented in the instant case. 

2. THE STUDIES PRESENTED 
  

The basis for the statistical analysis presented comes 

from two separate studies conducted by Professor David C. 

Baldus. Professor Baldus worked with Professor George 

Woodworth in conducting the studies and in doing the 

statistical analysis. Neither individual had much contact 

with the criminal justice system. Professor Baldus 

testified before the district court and was qualified as 

an expert solely on the legal and social interpretation of 

the data and not on the statistical procedures utilized. 

McCleskey v. Zant, supra at 352. Appellee also called Dr. 
  

Richard Berk as a social science expert. 

The Appellant presented the testimony of two expert 

witnesses. Dr. Joseph Katz was presented as a statistical 

=33- 

 



  

expert for the district court. Dr. Roger Burford was also 

gualified by the court as a statistical expert. All of - 

the testimony relates to the studies and analysis 

conducted by Professors Baldus and Woodworth and the 

subsequent analyses conducted by Dr. Katz. 

3. ACCURACY OF THE DATA BASE 
  

Appellant ehailenaed the accuracy of the data base 

utilized for various reasons. As noted by the district 

court, "no statistical analysis, much less a multivariate 

analysis is any better than the accuracy of the data 

base." McCleskey v. Zant at 354. 
  

The first aspect of the data base which is essential 

to review is the questionnaire designs utilized in both 

studies. A primary challenge to the accuracy of the data 

base results from the use of the foil method in the 

questionnaires in both studies. In the first study, the 

Procedural Reform Study, all information was gathered on 

the questionnaire by use of the foil method. (See 

Respondent's Exhibit No. 2). For example, in question 26, 

the coder of the questionnaire is instructed to enter up 

to three foils for allegations of whether an offender was 

engaged in the commission of another offense at the time 

of the murder. No provision was made for cases in which 

more than three contemporaneous offenses occurred. 

Although Baldus indicated this information was 

~34= 

 



  

subsequently included, it does not appear from any of the 

testimony that this was done based on a reanalysis of the 

original data Sourche. but was done simply based on the 

case summaries attached to the questionnaires. The 

reliability and the completeness of this data is thus 

called into question when the coder was not necessarily 

preparing the case summary with this aspect in mind. 

An additional problem in the use of the foil method 

occurs when it cannot be determined whether or not a 

contemporaneous offense was committed. In those cases, 

the coder was instructed to complete the foils to indicate 

that the occurrence of a contempraneous offense was 

unknown. The problem with this method is chat in the 

later data analysis, it is impossible to determine from a 

coding of unknown whether it is unknown as to whether any 

contemporaneous offenses occurred or whether it is known 

that certain contemporaneous offenses did not occur, but 

unknown as to other offenses. Thus, it would appear that 

in many cases the data col1sbtor has only partial 

knowledge of the cases. This is substantiated by an 

exhibit submitted to the district court as Respondent's 

Exhibit No. 17A which shows the unknowns present in the 

Procedural Reform Study. The relevance of this table is 

the number of unknowns present in the underlying data base 

which clearly affects the accuracy of any statistical 

analysis. As the foil method was utilized throughout the 

~35 

 



  

Procedural Reform Study, it is impossible to tell how many 

unknowns actually exist in addition to those listed in the. 

exhibit. 

The Charging and Sentencing Study attempted to correct 

this factor. The foil method is still utilized, however, 

in two extremely important questions, that is, the 

question relating to contemporaneous offenses at the time 

of the murder and the question relating to special 

aggravating features of the offense. Therefore, it is 

possible that many cases are actually more aggravated than 

is reflected in the study. This is simply one way in 

which the questionnaires could not capture every aspect of 

every case. Furthermore, all of the information was 

gathered by persons who did not have access to raw data in 

the State. In the Procedural Reform Study, law students 

took abstracts of the cases which were then sent to Ohio, 

where the guestionnaires were then coded by other 

individuals. 

The Charging and Sentencing Study relied on the 

records of the Georgia Department of Pardons and Paroles, 

supplemented by information from the Bureau of Vital 

Statistics and some questionnaires from lawyers and 

prosecutors. Information was also obtained from the 

Department of Offender Rehabilitation. Emphasis was 

placed on the fact that there was a summary of the police 

investigative report prepared by a parole officer 

36 

 



  

utilized. The records actually show that this police 

report appeared in only about 25 percent of the cases. - 

Furthermore, the investigative summaries of the Pardons 

and Paroles Board were done after the conviction, thus, 

they did not take into account what was known to the 

decision-makers at the time the decision was made. 

Furthermore, the information available from the Parole 

Board files was very summary in many respects. Thus, 

there was no way of knowing the prosecutor's attitude 

toward the credibility of certain witnesses, as well as 

many other factors. 

As noted by the district court, some of the 

questionnaires were clearly miscoded. "Because of the 

degree of latitude allowed the coders in drawing 

inferences based on the data in the file, a re-coding of 

the same case by the same coder at a time subsequent might 

produce a different coding. (R. 370, 386-87). Also, there 

would be differences in judgment among the coders. 

{R. 387). McCleskey v, Zant, Supra at 357... The district 
  

court also noted the inconsistencies in the questionnaires 

relating to the case and McCleskey's co-defendants. 

Another problem present with the data in the instant 

case can be seen from the comparisons done by Dr. Katz 

between the data in the two studies. Dr. Katz ran 

comparisons between the cases that were found both in the 

Procedural Reform Study and in the Charging and Sentencing 

3 

 



  

Study. There were some 361 cases which appeared in both 

studies. Of the variables examined by Dr. Katz, there 

were mismatches found in coding.between the two studies in 

all but two of the variables. As noted by the district 

court, "some of the mismatches were significant and 

occurred within factors which are generally thought to be 

important in a determination of sentencing outcome." Id. 

One of the ogntvic problems with the mismatches found is 

that there is no way to ascertain which study contains the 

correct data, if either study actually contains the 

correct data. 

Another problem with the data identified by the 

Appellant relates to the method of utilizing unknowns. 

Appellant listed in Respondent's Exhibit Nos. 17A and 18A 

the unknown items present in the data in both studies. 

This was utilized to rebut a claim by Baldus that the 

Procedural Reform Study and Charging and Sentencing Study 

were complete and accurate. Baldus testified that the 

responses in the questionnaires which indicated unknowns 

were consistently recoded to have 0 values in analyzing 

the data. Baldus testified that this was a statistically 

accepted method; however, Dr. Katz asserted that the only 

statistically accepted method of utilizing unknowns would 

be to discard any observation in which there was an 

unknown. In the type of study conducted where the 

accuracy and reliability of the datas is critical, the 

«38% 

 



  

recoding of unknown values consistently to be 0 is not a 

reliable procedure. To consistently code unknown items, 

that is, which appear to be unknown to the coder from the 

limited information available, as 0, i.e., as not 

occurring, merely assumes that it if it were unknown to 

the coder, then it did not exist and that the 

decision-maker had no information concerning this factor. 

This vet 180KE the fact that prosecutors may have 

information in chotx files that was unknown to the coders 

and that juries may have made assumptions from the 

evidence which the coder concluded represented an 

unknown. Therefore, this recoding method causes 

misrepresentations in the nature of the cases. 

The Georgia Charging and Sentencing Study presents the 

same problem in the questionnaire design. The 

questionnaire initially provides for four different 

responses including "suggested by the file" and "expressly 

present in the file." In coding the variables, however, 

the four available responses were converted into two 

responses, that is, the information either was present or 

was not present. Thus, the additional information 

available from the questionnaire was simply ignored. 

Baldus testified before the district court that the 

coding of unknowns would not affect the outcome of his 

analysis. The district court specifically found that the 

experiments did not support this conclusion and the court 

-30- 

 



  

even found that the experiments did not appear to be 

designed to support the conclusion. McCleskey, supra at . 
  

359. The district court went on to note that there were 

cases in which the race of the victim was unknown and the 

race was then recoded on the principle of imputation, as 

though the race of the victim was the same as the race of 

the defendant. In another critical instance, that is 

whether or not a penalty trial had been held, Baldus 

simply predicted what proportion of those cases which were 

unknown had probably proceeded to a penalty trial. As 

noted by the district court, the treatment of these cases 

could have skewed the results. 

Another factor which seriously affects the reliability 

and accuracy of the data base is the use of the "other" 

designation. In the questionnaires for both studies, many 

guestions provide for a designation of "other" when the 

questionnaire does not specifically list the appropriate 

answer. Professor Baldus specifically testified that he 

had not identified any new variables in order to include 

all of the designations of "other" in the questionnaires. 

Clearly, this additional information which was available 

to Baldus was simply ignored in compiling his data base. 

Id. 

The study also does not have sufficient information on 

the race of the victim when there were multiple victims. 

There was also a lack of information on whether or not the 

VY 1 

 



  

prosecutor offered a plea bargain in at least some 40 
- 

percent of the cases. Information on the credibility of . 

the witness was available only in a small numer of cases. 

Id, at 360 

Another weakness in the questionnaire design for both 

studies comes as a direct result of the fact that many 

murders are committed by two or more co-perpetrators. The 

testimony before the district court was unclear as to the 

instructions and intent in the coding of the 

co-perpetrator cases. The questionnaire items addressed 

to the involvement of co-perpetrators are not in 

sufficient detail to differentiate the role of particular 

defendants and the extent of the participation of each 

defendant in each aggravating circumstance. Therefore, it 

is difficult to isolate the defendants who played a minor 

role in the murder versus the defendant who was the prime 

mover Or actual triggerman in the case. 

Appellant submits that all of the above clearly shows 

that the data bases in question were simply inaccurate ais 

were not reliable enough to be utilized, particularly in a 

multiple regression analysis. If the data is not correct 

in a multiple regression analysis, the results can be - 

faulty and unreliable.’ Id. 

In examining the trustworthiness of the data base, the 

district court specifically stated the following: 

—dl 

 



  

After a consideration of the foregoing, 
  

the court is of the opinion that the 
  

data base has substantial flaws and 
  

that the petitioner has failed to 
  

establish by a preponderance of the 
  

evidence that it is essentially 
  

truthworthy. As demonstrated above, 
  

there are errors in coding the 

questionnaire for the case sub judice. 
  

This fact alone will invalidate several 

important premises of petitioner's 

experts. Further, there are large 

numbers of aggravating and mitigating 

circumstances data about which is 

unknown. Also, the researchers are 

without knowledge concerning the 

decision made by prosecutors to advance 

cases to a penalty trial in a 

significant number of instances. The 

court's purpose here is not to 

reiterate the deficiencies but to 

mention several of its concerns. It is 

a major premise of a statistical case 

that the data base numerically mirrors 

reality. If it does not in substantial 

degree mirror reality, any inferences 

WE ve 1 

 



  

empirically arrived at are 

untrustworthy. . 

McCleskey, supra at 360. Appellant submits that these are 
  

factual findings which are not clearly erroneous and, 

thus, should be accepted by this Court. 

4. MODELS UTILIZED 
  

An additional problem with the studies conducted by 

Baldus and Woodworth is the accuracy of the models. 

Baldus recognized that if a particularly important 

background variable is not controlled for, the whole 

picture is not presented by the coefficients in the 

regression, Id. Baldus utilized a 230 variable model 

stating that these were the variables he expected to 

explain who received death sentences and who did not. 

Baldus offered no support for this assumption. 

Several problems exist with this model. This model 

assumes that the information that was available to the 

persons gathering the data, was available to each 

decision-maker at the time the dadizions were made. This 

assumption is without support in the record. Thus, any 

model that was produced from this data base would ‘have to 

be flawed because it does not measure decisions based on 

the knowledge available to the individual decision-maker. 

The court concluded that none of the models utilzied were 

—d3= 

 



  

sufficiently predictive in terms of outcome to support an 

inference of discrimination. 1d. at 361. This finding is . 

again a factual finding which should be accepted by this 

Coure, 

Dr. Katz specifically testified that in regression 

analysis, he felt that the race of victim coefficient 

continued to be present because the regression was 

utilizing the rade of the victim as a convenient variable 

in explaining the actual outcome because so many cases in 

the sample were white victim cases. Dr. Katz did state 

that the race of the victim coefficient would no doubt 

become statistically insignificant with a model in which 

there was a higher r squared, thereby better accounting 

for all of the non-racial variables. Although the 

district court did not specifically accept this 

hypothesis, Appellant submits that it serves as a further 

criticism of the Baldus study. 

Appellant would urge this Court to conclude as did the 

district court, that none of the models presented were 

sufficiently predictive to support any inference of 

discrimination. 

5. MULTICOLINEARITY 
  

A significant problem exists in the data based on 

multicolinearity. Multicolinearity results when variables 

in an analysis are specifically correlated with one 

ida 

 



  

another. This creates difficulties in interpreting the 

coefficients of different variables. The relationship 

between the variables distorts the regression 

coefficients. A significant fact in the instant case is 

that white victim cases tend to be more aggravated while 

black victim cases tend to be more mitigated. Thus, 

aggravating factors would tend to be correlated with white 

victim cases while mitigating factors would tend to be 

correlated with black victim cases. Every expert who 

testified, with the exception of Dr. Berk, agreed that 

there was substantial multicolinearity in the data. As 

noted by the district court, "the presence of 
  

multicolinearity substantially diminishes the weight to be 
  

accorded to the circumstantial statistical evidence of 
  

racial disparity." McCleskey v. Zant, supra, 580 F.Supp. 
    

at 364 (emphasis in original). 

©. RANDOMNESS AND DISCRIMINATION 
  

The testimony at the hearing had in theidistrict court 

clearly put to rest any notions that the death penalty is 

applied in any random fashion in the State of Georgia. 

Appellee's expert, zecrgs Woodworth, specifically 

testified, "the system is definitely not purely random. 

This system very definitely sorts people out into 

categories on rational grounds. And those different 

categories receive death at different rates." (F.H.T. 

dB 

 



  

1277). After evaluating this testimony, the district 

court specifically concluded that the testimony by all of 

the experts eliminated any idea that the death penalty in 

Georgia was a random event unguided by rational thought. 

McCleskey v. Zant, supra at 365. Thus, there is clearly 
  

no merit to any allegation of arbitrariness in the 

application of the death penalty. 

Testimony given at that hearing by Baldus disputes any 

allegations of discrimination on the basis of race in the 

functioning of the death penalty system in Georgia. 

Professor Baldus testified the following: 

The race of the victim in this system 

clearly is not the determinant of what 

happened, but rather that it is a 

factor like a number of other factors, 

that it plays a role and influences 

decision making. 

The one thing that's, that struck me 

from working with these data for some 

time, there is no one factor that 

determines what happens in the system. 

If there were, you 

could make highly accurate predictions 

of what is going to happen. This is a 

system that is highly discretionary, 

=40~ 

 



  

highly complex, many factors are at 

work in influencing choice, and no one 

factor dominates the system. It's the 

result of a combination of many 

different factors that produce the 

results that we see, each factor 

contributing more or less. 

(FP.H.T., B13). 

Professor Baldus later interpreted his data to show 

the following: 

The central message that comes through 

is the racial effects are concentrated 

in categories of cases where there is 

an elevated risk of a death sentence. 

There is no suggestion in this research 

that there is a uniform, institutional 

bias that adversely affects defendants 

in white victim cases in all 

circumstances, or a black defendant in 

all cases. There's nothing to support 

that conclusion... It's a very 

complicated system. 

(F.H.T.:842)., 

We ie 

 



  

This testimony by Professor Baldus, as well as other 

testimony, clearly supports the district court's - 

conclusion that "any racial variable is not determinant of 

who is going to receive the death penalty, and . . . there 

is po support for a proposition that race has any effect 

in any single case." McCleskey v. Zant, supra at 366. 
  

7. PROOF BY MULTIVARIATE ANALYSIS 
  

In order to evaluate the analysis conducted by Baldus 

and Woodworth, it is necessary to understand what can be 

proven by the use of regression analysis and what 

regression analysis is. 

Regression analysis is a computational 

procedure that describes how the 

average outcome in a process, here the 

death sentencing rate, is related to 

particular characteristics of the cases 

in the system. A least squares 

regression coefficient displays the 

average difference in the death penalty 

rate across all cases caused by the 

independent variable of interest. In a 

regression procedure one may 

theoretically measure the impact of one 

4.8 

 



  

variable of interest while 

"controlling" for other independent 

variables. Conceptually, the 

coefficient of the variable of interest 

is the numerical difference in death 

sentencing rates between all cases 

which have the variable of interest and 

all cases which do not. R. 689, et 

seg., 1222-1223. The chief assumption 

of a weighted least squares regression 

is that the effect of the variable of 

interest is consistent across all 

cases. Woodworth testified that the 

assumption was not altogether warranted 

in this case. (Footnote omitted). 

McCleskey v. Zant, supra at 369. 
  

Another aspect of the analysis which is important in 

evaluating the testimony is the concept of statistical 

significance. Statistical significance is a way of 

reflecting the probability that any disparity could have 

occurred by chance. Various measures for expressing 

statistical significance were utilized by the various 

experts, although all of them have a similar meaning. 

Generally, these tests are a measure of the amount by 

which a coefficient would exceed the known standard 

dD 

 



  

deviation in the variable. A reference to a figure being 

statistically significant at the .05 level would be the . 

equivalent of a two standard deviation disparity. 

Statistical significance at the .0l1 level would approach a 

three standard deviation level. Statistically speaking, 

anything over the .05 level is not said to be 

statistically significant. 

As noted by the district court, regression analysis is 

capable of abuse. The regression model is simply trying 

to make predicted outcome equal the actual outcome by 

utilizing the factors that it is given. Thus, the 

regression analysis simply takes whatever variables it is 

given to be utilized and tries to explain the actual 

outcome in terms of those variables whether or not they 

have any effect in reality. Furthermore, the regression 

analysis can only be as good as the underlying data. "By 

its nature, then, the regression equation can produce 

endless series of self-fulfilling prophecies because it 

always attempts to explain actual outcomes based on 

whatever variables it is given ... '. . The regression 

coefficients for the racial variables could have been 

artificially produced because of the high incidence of 

cases in which the victim was white." McCleskey v. Zant, 
  

supra at 370. 

A further concern in the use of regression analysis by 

Baldus and Woodworth is the index method utilized. The 

~50~ 

 



  

entire study donduated is based on the presumption that 

cases with similar aggravation indexes are similarly 

situated. This is the basic underlying theory being 

utilized in constructing the aggravation index which is 

utilized in the study. "This presumption is not only 

rebuttable, it is rebutted, if nothing else, then by 

common sense." Id. at 371. The aggravation index has no 

way of accounting for the significance or insignificance 

of a particular aggravating or mitigating factor. 

It allows a case with compelling aggravating 

circumstances, offset only by a series of 

insignificant mitigating circumstances, to 

be counted as equal to a case with the same 

level of aggravation and one substantial 

mitigating factor having the same numerical 

value as the series of trifling ones in the 

first case . . . there.is no logical basis 

for the assumption that cases with similar 

aggravation indices are at all alike. 

McCleskey, supra at 371. 
  

One final concern with the use of regression analysis 

is that the regression itself has no way of knowing what 

particular factors will actually carry weight with the 

person making a decision in any one case. Thus, there is 

“51s 

 



  

no way of quantifying the effect that any variable may 

actually have, including the race of the victim or the - 

race of the defendant. Dr. Berk was specifically unable 

to say whether the Appellee had been singled out to 

receive the death penalty because his victim was white, 

and he could not state that the Appellee would have 

escaped the death penalty if his victim had been black. 

Berk testified, "Models that are developed talk about the 

Sfiacts on the average, they do not depict the experience 

of a single individual . . . . Whether in a given case 

that is the answer, it cannot be determined from 

statistics." (F.H.T. 785). Thus, even the experts 

submitted by the Appellee conceded that the statistics in 

question could not explain the effect in an individual 

case. 

Thus, Respondent submits that the regression analysis 

utilized simply fails to establish a prima facie case of 
  

discrimination. 

Baldus and Woodworth also utilized a technique known 

as step-wise regression. This type of analysis screens 

the variables included in the analysis such that the 

variables which make the greatest net contribution to the 

r squared are included. Those that have a small 

contribution are omitted from the analysis by the computer 

program. The program run on the computer knows nothing 

about the nature of the variables and cannot evaluate 

RL 

 



  

whether or not the variable would logcially make a 

difference. Frequently, variables will be dropped from . 

the analysis which should not have been excluded simply 

because the variables are highly correlated. Therefore, 

the step-wise regression analysis is capable of presenting 

a misleading picture through the presentation of a model 

with a high r squared and with significant coefficients 

but which model simply does not mean anything in terms of 

reality. Thus, Respondent submits that this technique 

simply offers no proof in support of the Appellee's 

contention. 

8. APPELLANT'S REBUTTAL 
  

At the hearing before the district court, Appellant 

offered a hypothesis and evidence in support of said 

hypothesis in rebuttal to the hypothesis of Professor 

Baldus. A central part of the hypothesis offered by 

Professor Baldus is that the state system places a lower 

value on black life than on white life. If this is true 

in the system, then the Georgia Charging and Sentencing 

system would tolerate higher levels of aggravation in 

black victim cases before a more severe sentence were 

imposed. The Appellant proposed to test this hypothesis 

by theorizing that if the theory of Professor Baldus were 

correct, then one would necessarily find that the 

aggravation levels in black victim cases where a life 

-53- 

 



  

sentence was imposed would be higher than those in white 

victim cases because the more aggravated black victim % 

cases were not being moved through the system to the death 

penalty stage like the more aggravated white victim cases. 

Dr. Katz examined the data in the Procedural Reform 

Study from the prospective of the hypothesis as stated 

above. The tables submitted in the district court 

indicated that black victim cases were not more aggravated 

at the later stages of the sentencing proceeding. 

Respondent's Exhibit No. 25 showed the initial tabulations 

done concerning black victim cases and white victim cases 

utilizing the variables previously set forth in Exhibit 

No. 23. After making comparisons to examine the presence 

or absence of aggravating factors, the table in 

Respondent's Exhibit No. 26 shows that more aggravating 

factors appear more often in white victim cases than in 

black victim cases with the percentage difference being 

statistically significant in a number of variables. In 

contrast, mitigating factors appear more often in black 

victim cases as is shown by the number of mitigating 

variables whose percentages difference 1s statistically 

significant. Thus, overall, white victim cases appear to 

be more aggravated and black victim cases appear to be 

more mitigated. Even if the data in the Procedural Reform 

Study were accepted as accurate, the white victim cases 

are shown to be systematically and significantly more 

54 

 



  

aggravated and less mitigated than black victim cases and, 

thus, they are qualitatively different. - 

A Key factor in the analysis conducted by Professor 

Baldus relates to the matching of similar cases in terms 

of relevant factors. Dr. Katz acknowledged that this 

could be an acceptable statistical method for testing for 

disparate treatment between groups, however, due to the 

fact that white victim cases are systematically worse than 

black victim cases, and given the assumptions utilized in 

defining variables in the Procedural Reform Study, Dr. 

Katz concluded that it was difficult to determine that the 

populations were matched as closely as possible on 

aggravating and mitigating factors. 

Professor Baldus initially compared cases based on the 

statutory aggravating factors. This analysis alone 

clearly does not match white victim case and black victim 

cases. A comparison of the variables in the cases in 

which the second statutory aggravating circumstance 

occurred showed that the white victim cases were still 

more aggravated and less mitigated than the black victim 

cases. (See Respondent's Exhibit No. 28). Thus, these 

differences prevent any significance from attaching to any 

disparity that may exist in the sentencing rate when an 

analysis is done based only on statutory aggravating 

iL 9 

 



  

factors. (See Respondent's Exhibits Nos. 29, 30, 31, 32, 

33 and 34 for analysis of the other statutory aggravating 

factors). 

Professor Baldus also made a comparison based on the 

number of statutory aggravating circumstances present. A 

disparity was noted in the sentencing rate between white 

victim cases and black victim cases in certain areas. 

Only in those cases in which three or four statutory 

aggravating circumstances were present is the difference 

statistically significant at the .05 level. (See 

Respondent's Exhibit No. 35). 

Dr. Katz examined these two categories and again 

concluded that the white victim cases were systematically 

more aggravated than black victim cases. Even in cases in 

which exactly three statutory aggravating circumstances 

occurred or those cases in which four statutory 

aggravating circumstances occurred, the white victim cases 

have systematically more aggravating features than the 

black victim cases. In examining the mitigating factors, 

there are some mitigating factors which appear more often 

in white victim cases and some in which the difference is 

statistically significant in favor of the black victim 

cases. The overall analysis indicates that white victim 

cases and black victim cases are still qualitatively 

different. (See Respondent's Exhibits Nos. 36 and 37). 

-56- 

 



  

Dr. Katz also made the same evaluation in the 

Procedural Reform Study with respect to the various 

sentencing stages. Appellant theorized that a natural 

conclusion from the hypothesis of Professor Baldus would 

be that defendants with aggravated black victim cases who 

deserved more severe sentences would receive lesser 

sentences than white victim cases. The analysis conducted 

by Dr. Katz clearly shows that this theory does not hold 

true. In the exhibits submitted, Dr. Katz conducted the 

analysis as previously discussed in the various sentencing 

stages, examining white victim cases and black victim 

cases for aggravating and mitigating factors. (See 

Respondent's Exhibits Nos. 42, 43, 44 and 45). An 

evaluation of these exhibits reflects that white victim 

cases are still systematically more aggravated and less 

mitigated than black victim cases at each stage of the 

sentencing process. It is clear from this analysis that 

the more aggravated black victim cases are not being left 

behind as life sentence cases. Thus, this is sufficient 

to serve as a possible explanation for the higher death 

sentencing rate in white victim cases due to the 

qualitative difference in white and black victim cases. 

Dr. Katz conducted a similar analysis for the data in 

the Georgia Charging and Sentencing Study and the same 

results were found. Based on an evaluation of all of the 

data, it appears that the white victim life sentence cases 

 



  

were systematically more aggravated and less mitigated 

than the black victim cases. In evaluating the cases 

based on a breakdown in the sentencing stages, life 

sentence cases showed that white victim cases were 

systematically more aggravated and less mitigated than 

black victim cases. (See Respondent's Exhibit No. 54). 

This same conclusion can be seen with regard to life 

sentence cases with no penalty trials. (See Respondent's 

Ehxibit No. 56). The analysis in this instance does show 

that mitigating factors are fairly evenly distributed 

between white and black victim cases, as far as those with 

statistically significant differences. 

In examining life sentence cases, in which a penalty 

trial was conducted, variables with statistically 

significant differences appear both in white victim cases 

and black victim cases in the aggravating and mitigating 

areas. The same conclusion can still be drawn, however, 

that is that black victim cases do not appear to be more 

aggravated and less mitigated than white victim cases 

which is what would be expected if Professor Baldus' 

hypothesis were true. Thus, the more aggravated black 

victim cases are not being left behind in the sentencing 

process. 

Dr. Katz also examined the cases based on 

defendant-victim racial combination. The analysis is 

reflected in Respondent's Exhibits Nos. 62, 63, 64, and 

 



  

65. The same pattern emerges when the cases are broken 

down on defendant-victim racial combination. The cases 

with black defendants and white victims tend to be more 

aggravated than other cases. 

The above analysis clearly shows that white victim 

cases are systematically more aggravated than black victim 

cases. A breakdown by sentencing outcome reveals that the 

cases are generally pursued through the system based on 

their levels of aggravation and mitigation. The more 

aggravated black victim cases are not left behind in the 

sentencing process, contrary to the logical conclusion 

which would be drawn from Baldus' hypothesis. Therefore, 

it appears that the Georgia Charging and Sentencing System 

appropriately functions according to the levels of 

aggravation and mitigation present in each case. 

9. THE FULTON COUNTY. DATA 
  

Appellee specifically presented data addressed to 

Fulton County, Georgia, as he was charged and sentenced in 

that County. Appellant agrees that this is the 

appropriate unit for consideration as this relates to the 

appropriate decision-making unit. Appellant further 

submits, however, that the data from Fulton County does 

not support a claim of intentional or purposeful 

discrimination. 

 



  

As found by the district court, the multiple 

regression analysis conducted on some forty or fifty 

variables "does not produce any statistically significant 

evidence of either a race of the defendant or race of the 

victim disparity in Fulton County. R. 1000." McCleskey 
  

Vv. Zant, 580 F.Supp. 8t 377. The district court also 

found that Baldus used a stepwise regression analysis 

which selected some twenty-three variables. The court 

specifically found that there was no judgment made 

concerning the appropriateness of the variables selected. 

The court also found that there was no statistically 

significant evidence "that the race of the victim or race 

of the defendant played any part in who received the death 

penalty and who did not." Id. The court also found as 

fact that, "in Fulton County, as was the case statewide, 

cases in which black defendants killed white victims 

seemed to be more aggravated than cases in which white 

defendants killed white victims." Id. 

Baldus also conducted a "near neighbor analysis." The 

district court properly concluded that this analysis did 

not support any of Baldus' opinions. The district court 

studied the cases of the cohorts classified in the same 

categories as that of the Appellee and specifically found 

that it could not identify either a race of victim or race 

of the defendant disparity. The court also specifically 

found that there were distinct differences between the 

~60~ 

 



  

cases that could explain either why no penalty trial was 

held or no sentence imposed. Id. at 378. 

The court finally examined the analysis conducted 

based on the killings of police oftlcers in Fulton 

County. The court noted that Baldus expressed the opinion 

that a racial factor could have been considered in the 

imposition of the death penalty in the instant case. The 

district court stated, "the court considers this opinion 

unsupported conjecture by Baldus." Id. at 379. 

Thus, Appellant submits that there is simply no 

evidence to support any inference of discrimination in the 

imposition of the death penalty in Fulton County. 

Furthermore, there is no showing of any arbitrariness in 

relation to the imposition of the death penalty in this 

case. 

D. CONCLUSION 
  

Appellant submits that an evaluation of the data 

presented case clearly shows that the statistics do not 

demonstrate a prima facie case in support of a charge that 
  

the death penalty was imposed based upon the race of 

victim or race of defendant. The Fulton County data do 

not make such a showing. Even if the analysis is examined 

from a statewide prospective, the statistics simply fail 

to establish a prima facie case of discrimination. 
  

“Bl 

 



  

The data base utilized by Baldus and Woodworth is 

substantially flawed as noted previously and as found by 

the district court. The methods utilized cannot disclose 

the quantitative effect that the racial variables can have 

in any context. The models utilized are not sufficiently 

predictive of outcome to establish that the presence of 

any effect seen from the racial variable is actually a 

real effect. Appellant further asserts that it has been 

shown that any results found are not the product of a good 

statistical methodology. Appellant further asserts that 

it has been shown that another explanation exists for any 

observed disparities, that is, that white victim cases and 

black victim cases are qualitatively different. 

Critical factors are overlooked in the data utilized 

by Professor Baldus. Critical to a determination of the 

reasoning behind any decision is a focus on the 

decision-maker. The decision-maker in this instance can 

be either the prosecutor or the jury. In order to 

ascertain what may have affected a decision, it is 

imperative to know what information was known to the 

particular decision-maker at the time that the decision 

was made. 

The data bases do not take into account many items 

which are unknown in many of the cases and do not include 

the "other" information provided by the questionnaires. 

In death penalty cases, there are likely to be unique 

Dn 

 



  

(although not arbitrary) factors present in the individual 

cases which account for the imposition of the death 

sentence. The mere fact that a certain factor occurs in 

only one case is not sufficient to justify excluding it 

from consideration in the study as that may be the one 

factor that accounts for the imposition of the death 

penalty in that particular case. This could easily 

discount any race of victim or race of defendant effect 

that might otherwise appear. There is no way of 

conducting a statistical study of this sort to account for 

unique factors in each case which would no doubt affect 

the decision to impose or not to impose the death 

penalty. This is particularly true in light of the fact 

that Georgia juries are allowed to consider all factors in 

aggravation and mitigation once a statutory aggravating 

factor has been found beyond a reasonable doubt. 

A final important factor overlooked in the analysis is 

the subjective factors which cannot be measured by a 

statistical study. Certain factors are obviously 

important to a prosecutor in making the decision as to 

whether to proceed to trial or accept a guilty plea, or 

whether to seek a death penalty. A prosecutor obviously 

considers the strength of the evidence. Even though 

Baldus indicated that he attempted to account for these 

variables, very little attention has been paid to these 

alleged variables in the analysis. The prosecutor 

“63 

 



  

obviously considers the credibility of witnesses, the 

availability of evidence to impeach prosecution witnesses, 

the certainty of the identification by a witness, the 

ability of witnesses to withstand cross-examination as 

well as the culpability of each individual defendant. 

Subjective factors also come into play in the jury's 

decision as to whether to impose the death sentence. The 

jury is allowed to consider all factors in aggravation and 

mitigation once they find the existence of a statutory 

aggravating circumtance beyond a reasonable doubt. There 

is no reasonable way a statistical study can take into 

account the jury's evaluation of the defendant as he sits 

in the courtroom during the trial in his demeanor as it 

appears to the jury. A defendant's reactions throughout 

the trial may very well be the key factor to a jury in 

making that final decision as to whether or not to impose 

the death sentence. A defendant's expression of remorse 

in the courtroom may be the final mitigating factor which 

the jury utilizes not to impose the death sentence whereas 

a defendant's attitude could also influence the jury in 

the other direction. This same analysis would logically 

apply to all of the witnesses who testified in the case. 

Such factors are clearly acceptable ones for the jury to 

consider in death sentences cases as in other cases in 

assessing the credibility of witnesses and in assessing 

whether or not a death penalty is appropriate. Thus, any 

Cdl 

 



  

study which ignores these relevant factors can hardly be 

reflective of the factors which actually affect sentencing 

outcome. : 

Statistical analysis has a place in decision-making 

situations in which the effects are random or in which 

there are a finite number of variables to be taken into 

account. In a situation such as the instant case, when 

there are almost an infinite number of small factors which 

can be taken into consideration by a jury or by a 

prosecutor in making a decision, a statistical study 

attempting ie evaluate the charging and sentencing system 

based on a limited number of factors simply is 

inappropriate and insufficient to support a finding of 

potential discrmination. 

Appellant submits that Appellee has failed to carry 

the burden of estabishing intentional and purposeful 

discrimination in this case. The statistics presented are 

simply insufficient to conclude that there is statewide 

discrmination and Appellee has made no attempt to 

establish intentional discrimination in his particular 

case. Therefore, Respondent urges this Court to conclude 

that this allegation is without merit. 

-65- 

 



  

V. THE DISTRICT COURT PROPERLY 

DECLINED TO CONSIDER APPELLEE'S 

ALLEGATION CONCERNING THE 

DEATH-QUALIFICATION OF THE JURY. 

Appellee has asserted that the district court 

improperly rejected his prosecution-proneness claim. 

Appellee has asserted that the exclusion of death-scrupled 

juror violated his right to an impartial and unbiased jury 

drawn from a representative cross-section of the 

community. Appellee asserts that this Court should adopt 

the findings and conclusions set forth by the district 

courts in Grigsby v. Mabry, 569 F.Supp. 1273 (E.D. Ark. 
  

1983), hrng. en banc ordered, No. 83-2113 EA 8th Cir. Nov. 
  

8, 1983 and Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C. 
  

1984), appeal pending, No. 84-6139 L (4th Cir.). Appellee 
  

has not challenged the reasoning of the prior precedent of 

this Court set forth in Spinkellink v. Wainwright, 578 
  

  

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

rhng. denied 441 U.S. 937 (1979) and Smith v. Balkcom, 660 
  

  

F.24 573 (5th Cir. Unit B 1981), cert. denied, U.S. 
  

, 103 8.Ct. 181 (1982). In those decisions, the court 

accepted the underlying premises as true and went on to 

make its analysis and conclude that there was still no 

merit to the proposition. The same reasoning has been 

adopted by implication by the Fourth Circuit Court of 

 



    

Appeals in Barfield v. Harris, 719 F.2d 58 (4th Cir. 
  

1983). In that decision, the Court of Appeals referred: to 

the opinion of the district court and adopted the findings 

of the district court on numerous issues. Among those 

issues was a conclusion by the district court that the 

reasoning by the Fifth Circuit Court of Appeals in 

Spinkellink was persuasive. Barfield v. Harris, 540 
  

  

F.Supp. 451 (E.D.N.C. 1982). See generally, Hutchins v. 
  

Woodard, 730 F.2d 953 (4th Cir. 1984). Appellee has cited 

to no Circuit Court of Appeals that has adopted the 

holdings in either Grigsby v. Mabry or Keeten v. Garrison. 
  

  

Appellant sudmits that this Court should adhere to the 

reasoning set forth in Spinkellink v. Wainwright as no 
  

justification has been given by the Appellee for this 

Court to overrule the reasoning in that case. Thus, 

Appellant submits that the district court properly 

declined to consider this issue. 

  

CONCLUSION 

For all of the above and foregoing reasons, Appellant 

submits that the judgment and verdict of the district 

court should be reversed as to the Giglio claim and that