McCleskey v. Zant En Banc Brief for Petitioner as Appellee and Cross-Appellant (Habeas Corpus)

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

No. 84-8176

WARREN McCLESKEY,
Petitioner-Appellee, and 
Cross-Appellant,

-against-

WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification Center,

Respondent-Appellant, and 
Cross-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

EN BANC BRIEF FOR PETITIONER McCLESKEY 
AS APPELLEE AND CROSS-APPELLANT 

(HABEAS CORPUS)

ROBERT H. STROUP
1515 Healey Building 
Atlanta, Georgia 30303

JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER 

99 Hudson Street New York, New York 10013
TIMOTHY K. FORD

600 Pioneer Square 
Seattle, Washington 94305

ANTHONY G. AMSTERDAM
New York University Law School 
40 Washington Square South 
New York, New York 1012

ATTORNEYS FOR PETITIONER-APPELLEE 
AND CROSS-APPELLANT



STATEMENT REGARDING PREFERENCE

These are cross-appeals by the parties from the judgment of 
the United States District Court in a habeas corpus action, 
entered February 2, 1984, seeking relief under 28 U.S.C. §§ 2241
2254 from the judgment of a state court.

The cross-appeals should be given preference in processing
and disposition pursuant to Rule 12 and Appendix One (a)(3) 
of the Rules of this Court.

f

l



STATEMENT REGARDING ORAL ARGUMENT

The Court directed oral argument en banc in its order of

March 28, 1984.



TABLE OF CONTENTS
Page

I

Statement Regarding Preference .................
Statement Regarding Oral Argument ..............
Statement of the Issues Presented for Review ---
Statement of the Case ...........................

(i) Course of Proceedings in the State 
Courts and in the Court Below ....

(ii) Statement of Facts 
(iii) Statement of Review

Summary of Argument ......
Statement of Jurisdiction .
Argument ........................................

I. The District Court Correctly Concluded 
That The State's Failure To Disclose To 
Petitioner's Jury A Promise By Atlanta 
Police Detective Dorsey To Witness Offie 
Evans In Exchange For His Critical Test­
imony Against Petitioner Contravened 
The Due Process Clause Of The Fourteenth 
Amendment ...............................
A. Facts Supporting The Giglio Claim ...
B. The Legal Standard .................

II. The district Court Erred When It Rejected 
Petitioner's Claims That Trial Counsel 
Failed To Render Effective Assistance Of 
Counsel .................................

Ill The District Court Erred When It Rejected 
Petitioner's Claim That His Jury Instruc­
tions Contravened The Due Process Clause .

IV. In Rejecting Petitioner's Claim That
Substantial Racial Disparities Persist In 
Georgia's Capital Sentencing System, The 
District Court Misapplied Controlling 
Legal Precedent, Misunderstood Basic 
Statistical Principles, and Ignored Clear 
Record Evidence ........................
A. Introduction: Petitioner's Constitu­

tional claims ......................

9

9
10 

12

15

24

25

25

i n



TABLE OF CONTENTS

B. The Facts: Petitioner Has Made Out A 
Compelling Prima Facie Case of Racial 
Discrimination In Capital Sentencing . 27

(i) Petitioner's Experts Were Well-
Qualified .....................  27

(ii) Petitioner's Data-Gathering
Effort Was Carefully Conducted . 31

I (a) The integrity of the data
sources ...................  22

(b) The quality of the data-
gathering instrument ......  36

(c) The care employed in
coding ....................  29

(d) The basic coding conven­
tions .....................  41

(iii) The Statistical Methods Were
Valid and Appropriate .........  44

(iv) The Results Make Out A Prima
Facie Case of Racial Discrimi­
nation ........................  46

C. The Law: The District Court Misapplied
The Law In Rejecting Petitioner's Prima 
Facie Case ..........................  56

(i) Petitioner's Data Clearly Exceed
Minimum Evidentiary Standards For 
Use in Regression Analysis ....  57

i (ii) Multiple Regression Analysis Is
An Appropriate Means of Proof .. 59

x (iii) The Models Employed by Peti­
tioner Were Statistically 
Appropriate ...................  63

D. The State Presented No Significant
Rebuttal Case .......................  67

V. The District Court Improperly Rejected_
Petitioner's Prosecution-Proneness Claim . 70

Conclusion ...................  0̂

Page

iv



TABLE OF AUTHORITIES
Page

Cases:
Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 1983)
Arlington Heights v. Metropolitan Housing Authority, 429 

U.s. 252 (1977)
Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1776)
Bell v. Georgia, 554 F .2d 1360 (5th Cir. 1977)
Castaneda v. Partida, 430 U.S. 482 (1977)
Columbus Board of Education v. Penick, 443 U.S. 449

(1979)
Curran v. Delaware, 259 F.2d 707 (1958)
Cuyler v. Sullivan, 446 U.S. 335 (1980)
Detroit Police Officers' Ass'n v. Young, S08F.2d 671 

(6th Cir. 1979), cert, denied, 452 U.S. 938 (iyaij
Douglas v. Wainwright, 714 F.2d 1432 (11th Cir. 1983)
Eastland v. Tennessee Valley Authority, 704 F.2d 613 

(11th Cir. 1983)
Enmund v. Florida, 458 U.S. 782 (1982)
Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983)
Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 

1979 )
Furman v. Georgia, 408 U.S. 238 (1972)
Gaines v. Hopper, 575 F .2d 1147 (5th Cir. 1978)
Giglio v. United States, 405 U.S. 150 (1971)
Godfrey v. Georgia, 446 U.S. 420 (1980)
Goodwin v. Balkcom, 684 F. 2d 794 (11th Cl3r*cert, denied, ___ U.S. ___, 103 S.Ct. 1798 (1983)
Gregg v. Georgia, 428 U.S. 153 (1976)
House v. Balkcom, 725 F.2d 608 (11th Cir. 1984)

27

27
14
19
69

2b
12
6

58,68
18

8,46
61,63,67

34

12

25
19

1,5,6,6 
12,20,70 

8,26

17,18
25,29,31

18

v



Page

International Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977)

Jackson v. Virginia, 443 U.S. 307 (1979)
Johnson v. Uncle Ben's Inc., 628 F.2d 419 (5th Cir.

1980), cert. denied, ___U.S. ___ 103 S.Ct. 293 (1982)
Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) (en 

banc)
King v. Strickland, 714 F .2d 1481 (11th Cir. 1983)
Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), rev'd 

on other grounds, 398 U.S. 262 (1970)
Moore v. Zant, 722 F .2d 640 (11th Cir. 1983)
Napue v. Illinois, 360 U.S. 264 (1959)
Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979)
Palmes v. Wainwright, 725 F.2d 1511 (11th Cir. 1984)
Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982)
Pullman-Standard v. Swint, 456 U.S. 273 (1982)
Pyle v. Kansas, 317 U.S. 213 (1942)
Rogers v. Lodge, 458 U.S. 613 (1982)
Rummel v. Estelle, 590 F.2d 103 (5th Cir. 1979)
Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1977)
Scott v. Wainwright, 698 F .2d 427 (11th Cir. 1983)
Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit 3 (1981)
Smith v. 3alkcom, 671 F.2d 858 (5th Cir. Unit B 1982)

(on rehearing)
Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983)
Smith v. State of Florida, 410 F.2d 1349 (5th Cir.

1969)

58
6

8,67

6

18

23
12

12

21
6

26
6

7,12
26
17 
12

18 
6

27
12

12

Spencer v. Zant, No. 82-8408 (11th Cir.) 26
Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) 6,8,25
Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983) 58,68,69
United States v. Antone, 603 F .2d 566 (5th Cir. 1979) 14

vi



Page

United States v. Barham, 625 F.2d 1221 (5th Cir. 1980)
United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980)
United States v. Nixon, 634 F.2d 306 (5th Cir. 1981)
United States v. Poitier, 623 F.2d 1017 (5th Cir. 1980)
United States v. Tucker, 404 U.S. 443 (1972)
Valentino v. United States Postal Service, 674 F.2d 56 

(D.C. Cir. 1982)
Von Moltke v. Gillies, 332 U.S. 708 (1948)
Vuyanich v. Republic Nat'l Bank of Dallas, 505 F. Supp. 

224 (N.D. Tex. 1980), vacated, 723 F.2d 1195 (5th 
Cir. 1984)

Wade v. Mississippi Cooperative Extension, 528 F . 2d 508 
(5th Cir. 1976)

14
14
14
14
21

63
17

36,58
61,68

62
27Washington v. Davis, 426 U.S. 229 (1976)

Washington v. Watkins, 655 F.2d 1346 (5th Cir. Unit A 1981) 18
Weidner v. Wainwright, 708 F.2d 614 (11th Cir. 1983) 18,19
Wilkins v. University of Houston, 654 F.2d 388 (5th Cir.

1981), vacated & remanded, ___U.S. ___, 103 S.Ct.
34 (1982)

Williams v. Brown, 609 F.2d 216 (5th Cir. 1980) 
Yick Wo v. Hopkins, 118 U.S. 356 (1886)
Young v. Zant, 677 F.2d 392 (11th Cir. 1982)
Zant v. Stephens, __U.S. ___, 103 S.Ct. 2733 (1983
Zant v. Stephens, 456 U.S. 410 (1982)

62
12

8,26
19
21

8,26

Statutes:
F.R. Civ. P. 52(a) 6
Former GA. CODE ANN. § 77-512 33
O.C.G.A. § 16-1-3(4) 20
O.C.G.A. § 17-10-2 20
O.C.G.A. § 42-5-50 20

vi 1



Page

Other Authorities;
Baldus, "Welfare as a Loan: An Empirical studY of th® Recovery of Public Assistance Payments in the Unitea

States," 25 STAN. L. REV. 123 (1973)
Baldus & Cole, "A Comparison of the Work of ^horstein 

Sellin and Isaac Ehrlich on the Deterent Effect of 
Capital Punishment," 85 YALE L.J. 170 (1975)

D. BALDUS & J. COLE, STATISTICAL PROOF OF DISCRIMINATION, 
(1980)

Baldus, Pulaski & Woodworth, "Proportionality Review of 
Death Sentences: An Empirical Study of the Georgia
Experience," J. CRIM. L. & CRIMINOLOGY (forthcoming
1984)

Baldus, Pulaski, Woodworth & Kyle, "Identifying Compara­
tively Excess Sentences of Death," 33 STAN. L. REV.
601 (1977)

Bowers & Pierce, "Arbitrariness & Discrimination under 
Post-Furman Capital Statutes," 26 CRIME & DELINQ. 563
(1980)

Finkelstein, "The Judicial Reception of Multiple Regression 
Studies in Race and Sex Discrimination Cases, 80 COLUM. 
L. REV. 737 (1980)

28

29

28

29

29

46

63
Fisher, "Multiple Regression in Legal Proceedings," 80 COLUM.

L. REV. 702 (1980) \\OD / OD
J. GUILFORD & 3. FRUCHTER, FUNDAMENTAL STATISTICS IN

PSYCHOLOGY AND EDUCATION, 6th ed. (1969) 66
Hal inski & Feldt, "The Selection of Variables in Multiple 

Regression Analysis, 7 J. EDUC. MEASUREMENT 151 (1970) 53
51H. KALVEN & H. ZEISEL, THE AMERICAN JURY (1966)

J. NETER & W. WASSERMAN, APPLIED LINEAR STATISTICAL MODELS
(1974) 61

Special Edition, "A Study of the California Penalty Jury in
First Degree Murder Cases," 21 STAN. L. REV. 1297 (1969) 29

Tavlor, "Analyzing Qualitative Data," in P. ROSSI, J. WRIGHT 
& A. ANDERSON, eds., HANDBOOK OF SURVEY RESEARCH (1979) 61

Wolfgang & Riedel, "Race, Judicial Discretion and the Death
Penalty," 407 ANNALS 119 (1973) 29

- viii -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

No. 84-8176

WARREN McCLESKEY,
Petitioner-Appellee, and 
Cross-Appellant,

-against-

WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification 
Center, ,, .Respondent-Appellant, and 

Cross-Appellee.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether the State’s failure to correct false testimony 
by a key prosecution witness, denying that he had been
promised assistance in exchange for his testimony, 
deprived petitioner of due process under Giglio v. 
United States, 405 U.S. 150 (1972) at his guilt and 
sentencing trials for murder and armed robbery?

2. Whether the failure of petitioner's trial counsel to 
conduct any meaningful pretrial investigation, even 
though he was aware that potentially damaging State s 
evidence might be introduced and that useful defense 
leads remained to be pursued on both guilt and sen­
tencing issues, violated petitioner's Sixth Amendment 
right to effective assistance of counsel?

-1 -



3. Whether the trial court's instructions on the critical
element of malice could have been viewed by a reasonable 
juror as shifting the burden of proof to petitioner in 
violation of Sandstrom v. Montana, 442 U.S. 510 (1979), 
and whether in a case where malice was seriously m  
dispute, such a constitutional error could ever be 
harmless beyond a reasonable doubt?

4.

5.

6 .

Whether the District Court erred in dismissing as a 
matter of law petitioner's Eighth Amendment Claim that 
the death penalty in Georgia is being applied in an 
arbitrary and capricious manner?
Whether the District Court misapplied well-established 
legal standards, charting an errant legal course in 
rejecting petitioner’s comprehensive statistical evidence 
of racial discrimination in Georgia capital sentencing

system?
Whether the District Court erred in dismissing petitioner's 
challenge to the death-qualification of his trial jury

as a matter of law?

STATEMENT OF THE CASE

(i) Course o£ Proceedings In The State Courts And In The
Court Below_______________________— ------------—---

Petitioner Warren McCleskey, a young black man, was convicted
in the Superior Court of Fulton County, Georgia on October 12, 1978 
—  by a jury comprised of eleven white jurors and one black juror 
(Fed. Hab. T. 1316)1/ —  of the murder of Police Officer Frank

\J Each reference to the transcript of the evidentiary hearing
(Continued)

-2-



Schlatt, and of two counts of armed robbery. (Petitioner McCleskey 
alone, among seventeen defendants indicted in Fulton County between 
1973 and 1980 for the murder of a police officer, received a death 
sentence for his crime.) (Fed. Hab. Tr. 1050-52; DB 115, 116.)—
He was sentenced to death for murder and to separate life sentences
for armed robbery.

After state habeas corpus proceedings had been completed, peti­
tioner filed a federal habeas corpus petition in the Northern 
District of Georgia, Atlanta Division, on December 30, 1931. The 
District Court entered an order on June 10, 1982 denying a motion 
for an evidentiary hearing, and dismissing the petition without 
prejudice, citing petitioner's ostensible failure to exhaust one 
constitutional claim (R. 248). Petitioner filed a timely motion 
to alter or amend the judgment (R. 261), and on October 8, 1982, 
the District Court entered a further order, directing an evidentiary
hearing (R. 475).

Upon the State's motion (R. 498), the hearing was continued 
while respondent Zant pursued discovery. On April 7, 1933, peti' 
tioner also filed a motion for discovery, seeking to serve inter 
rogatories, to obtain production of documents, and to depose re­

in the United States District Court for the Northern District of 
Georgia, Atlanta Division, on August 8-22, 1983, wil be indicated_ 
by the Abbreviation "Fed. Hab. T." Each reference to the transcript 
of petitioner's state trial will be indicated by the abbreviation 
"T. Tr." References to the transcript of petitioner s state 
habeas corpus hearing will be indicated by the abbreviation St.
Hab. Tr."
2/ Each reference to petitioner's exhibits introduced during 
"the federal evidentiary hearing will be indicated by the initials 
of the witness through whose testimony the exhibit was introduced 
(e.g., Professor David Baldus becomes "DB") followed by tne 
exhibit number.

-3-



spondent's experts.17 (R. 54!.) On June 3, 1983, the District 
Court entered an order which: (i) granted the depositions peti­
tioner had sought; (ii) directed respondent to list all objections 
or criticisms of petitioner's data base, and analyses; but ( m )  
denied as "not relevant to any issue presented by the petitioner" 
those interrogatories which sought information about discrimination 
in the criminal justice system and about prosecutorial plea bargaining

\ 4/practices.
Subsequently on July 21, 1983, petitioner was forced to file 

a motion to compel respondent to respond in full to his request 
for all objections to the Baldus studies. Thereafter, petitioner 
filed a request for respondent to admit the accuracy of the data upon 
which Professor Baldus conducted his analyses, except insofar as 
respondent had noted objections (R. 595).

During a pretrial conference held on July 29, 1983, the

3/ continued

jr.ftrsjffsrsyss ^■narrs^.*:,sua
or traverse juries" on grounds of racial discrimination, as well

as all actions challenging prosecutorial use of ^ ^ ^ t y 63'an rhallenaes to police or prosecutorial actions in Fulton_county 
because of alleged racial discrimination in the administration of 
criminal justice; and (v) on the percentage of blacks employed in a 
rlnge of ci?y" county and state positions related to the criminal 
justice system (R. 556-62). Petitioner also requeued respondent to 
-[Hist all objections, criticisms or deficiencies the data base, 
date-gathering methods, analyses and conclusions of petit-on^r 
expert Professor David Baldus (R. 566).
4/ The Court also initially denied as irrelevant petitioner's 
Request for access to documents revealing Fulton County prosecu­
torial practices and rationales in homicide case ( . o ■
Subsequently, in a pretrial conference, the Court reconsidered 
this potion of its June 3rd order and allowed petitioner to 
depose Lewis Slayton, the District Attorney for the Atlanta 
Judicial Circuit.

-4-



District Court ordered respondent to file a complete list of its 
objections by August 3, 1983. A modified order was entered on 
August 5, 1983 (R. 716). Respondent did not fully meet this 
schedule, as petitioner's counsel noted at the outset of the 
August 8, 1 983 hearing (Fed. Hab. Tr. 10-11).—^

The evidentiary hearing itself comprised over two weeks of 
testimony, from August 8-22, 1933. A further hearing on statisti­
cal issues was later held on October 17, 1983. The District Court 
entered an order and judgment on February 2, 1984, granting habeas 
relief on petitioner's due process claim under Giglio v. United 
States, 405 U.S. 150 (1971), and otherwise dismissing petitioner's
claims (R. 1129).

(ii) Statement of Facts
In view of the number and complexity of the issues presented 

on these cross-appeals, the page constraints imposed, the need to 
avoid repitition, and the statement of facts already presented by 
respondent (see Resp. Br. 4-3),-/ petitioner will set forth facts 
necessary for the consideration of his claims as part of the 
argument on each of those claims.

(iii) Standard of Review
(a) As respondent concedes (Resp. Br. 8), petitioner's

5/ on several occasions during the hearing, respondent acKnow- 
1edged that it had not identified alleged deficiencies in the 
data base (which would have permitted petitioner's experts to 
correct them and rerun its analyses) (Fed. Hab. Tr. 648—52; 
see also id. 1385; 1417).
6/ Each reference to the Brief of Respondent-Appellant, dated 
April 10, 1984, will be identified by the abbreviation "Resp. 
Br." followed by the number of the page on which the reference 
may be found.

5



due process claim under Giglio v. United States is a mixed Ques­
tion of fact and law requiring independent review by this Court;
See e.g., Cuyler v. Sullivan, 446 US. 335, 341-42 (1980).

(b) Petitioner's claim that his counsel was ineffective 
is also a mixed question of fact and law, requiring independent 
review. See, e.g., Palmes v. Wainwright, 725 F .2d 1511, 1519 
(11th Cir. 1984 ) .

(c) Petitioner's due process challenge under Sandstrom 
v. Montana, 442 U.S. 510 (1979), requires this Court's independent 
application of legal principles to record facts. See, e ^ ,  
Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983).

(d) Petitioner's claim that the death penalty in the 
State of Georgia is being imposed in arbitrary and discriminatory 
patterns raised some factual issues, reviewable under F. R. Civ.
P. 52(a) , see e.g. , Pullman-Standard v. Swirvt, 4 56 U.S. 2 73 
(1982); many mixed questions of fact and law, requiring independent 
review by this Court, see, e.g., Cuyler v. Sullivan, supra; and 
several questions of federal constitutional law, requiring inde­
pendent appellate determination, see, e.gA, Cuyler v. Sullivan, 
supra.

(e) Two panels of this Court have previously held that 
petitioner's challenge to the death-qualification of his jury 
raised solely a legal issue. See Smith v. Salkcom, 660 F.2d 573, 
578 & n.12 (5th Cir. Unit B 1981); Spinkellink v. Wainwright, 578 
F.2d 582, 593-96 (5th Cir. 1978). We respectfully disagree, 
believing it raised both factual and legal questions requiring a 
full evidentiary hearing and independent review by this Court.

6



SUMMARY OF ARGUMENT
The District Court correctly concluded that the State's fail­

ure to disclose a promise to one of the State's key witnesses 
contravened the Due Process Clause. Giglio v. United States, 405 
U.S. 150 (1972). The Supreme Court had held that the State has 
an obligation to disclose such a promise, made as it was in this 
case, by a police officer. Pyle v. Kansas, 317 U.S. 213 (1942). 
Because of the critical nature of the witness' testimony, it 
was likely that jury deliberations would have been affected if
the promise had been disclosed.

The District Court erred in rejecting petitioner's ineffec­
tive assistance of counsel claim. Trial counsel's failure to 
interview State witnesses, to review the State's documentary 
evidence, and to interview witnesses who supported a defense 
theory presented at trial, all constituted ineffective assistance 
of counsel which resulted in actual and substantial prejudice to 
petitioner, Moreover, trial counsel's performance at the penalty
phase also fell below Sixth Amendment standards.

The District Court improperly rejected petitioner's Sandstrom 
claim. The instruction given to his trial jury suggested that 
petitioner had the burden of proof, and failed to specify what 
burden lay on petitioner to rebut the presumption on intent and 
malice which the trial court included in its charge. The en banc 
court should hold that a Sandstrom violation is harmless only when 
the instruction has no bearing on the offense for which the defend 
ant is convicted, or when the defendant has, by his own actions, 
taken the issue of intent away from the jury. Alternatively, the

-7-



Court should hold that, on the facts presented herein, the 
Sandstrom violation was not harmless beyond a reasonable doubt.

The District Court, relying in Spinkellink v. Wainwright, 578 
F.2d 582 (5th Cir. 1978), rejected as a matter of law petitioner's 
Eighth Amendment claim that Georgia's capital statutes are being 
applied in an arbitrary and capricious manner. Yet the Supreme 
Court has made clear the legislation valid on its fact can be 
found discreiminatory in its application. Yick_Wo v. .Hopkins, 118 
U.s. 356, 373-74 (1886). Capital statutes, even in the post-Furman 
era, are no exception. See Godfrey v. Georgia, 446 U.S. 420, 428 
(1980); Zant v. Stephens, 456 U.S. 410, 413 (1982). Therefore, 
the refusal even to entertain petitioner’s comprehensive statis­
tical evidence was clear constitutional error.

The District Court did permit petitioner to place his statis­
tical evidence before the Court in support of a Fourteenth Amend­
ment equal protection claim. However, the Court departed radically 
from prior precedents in evaluating that evidence. Rejecting 
multiple regression analysis as a valid mode of proof, refusing 
to take seriously any but large-scale statistical models which 
contained every possible variable, measuring petitioner's data 
against unattainable standards of perfection, the District Court 
adopted novel and unjustifiable standards totally at odds with 
this Court's prior teachings on the evaluation of statistical 
proof. See, e_^; Eastland v. Tennessee Valley Authority, 704 
F.2d 613 (11th Cir. 1983); Johnson v. Uncle Ben's Inc^, 623 F.2d 
419 (5th Cir. 1980). The Court's opinion on this claim is suf­
fused with both factual misunderstandings and legal misconceptions,

-8-



requiring this Court to vacate and remand for further proceedings
under appropriate legal standards.

The Court's rejection as a matter of law of petitioner's claim
that exclusion of death-scrupled jurors unconstitutionally deprived 
him of a fair and impartial jury, drawn from a representative cross 
section of his community, was error. See, e ^ ,  Grigsby v. Mabry, 
569 F. supp. 1273 (E.D. Ark. 1983), appeal pending No. 83-2113-EA

(8th Cir.).

STATEMENT OF JURSIDICTION
The judgment of the District Court was entered on February 2, 

1984. The District Court entered orders granting a certificate 
of probable cause to appeal and leave to proceed in forma pauperis 
on March 12, 1984. The Court has jurisdiction of these cross- 
appeals pursuant to 28 U.S.C. § 2253.

ARGUMENT*

I THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE 
STATE S FAILURE TO DISCLOSE TO PETITIONER'S JURY 
A PROMISE BY ATLANTA POLICE DETECTIVE DORSEY TO 
WITNESS OFFIE EVANS IN EXCHANGE FOR HIS CRITICAL 
TESTIMONY AGAINST PETITIONER CONTRAVENED THE DUE 
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT_-----

The District Court concluded that the State's failure to dis­
close to the jury an understanding between Atlanta Police detective 
Sidney Dorsey and trial witness Offie Gene Evans contravened the
Due Process Clause of the Fourteenth Amendment. (R. 1218-25.) 
The District Court's conclusion is consistent with precedents 
established by the United States Supreme Court and faithfully 
followed by the panel decisions of this Court.

-9-



A. Facts Supporting the Giglio Claim 
Offie Evans was a key State witness in Warren McCleskev's 

trial. Evans' testimony explained certain inconsistencies in the 
eyewitness identifications of McCleskey as one of the robbers of 
the Dixie Furniture Store. More critically, Evans told the jury 
that McCleskey had confessed to him that he had shot Officer 
Schlatt and would have done the same thing if it had been twelve 
police officers. Evans' testimony was the centerpiece of the 
prosecutor's argument to the jury that McCleskey had committed
the shooting with malice. (R. 1222).

The District Court correctly found that Evans testimony 
before the trial jury was false and evasive. Evan's federal 
prisoner described his "escape" from the Federal Halfway House in 
Atlanta as nothing more than a misunderstanding between himself 
and the Halfway House administrators, and when he stated that no 
promises had been made to him concerning his escape charges in 
exchange for his cooperation with the McCleskey prosecution. (R. 
1220.) Evans' misleading testimony to petitioner's jury was as
follows:

Q: You do have an escape charge still pending, is that
correct?

A; Yes, sir. I've got one, but really it ain't no escape, 
what the peoples out there tell me, because something 
went wrong out there so I just went home.^ I stayed at 
home and when I called the man and told him that I 
would be a little late coming in, he placed me on 
escape charge and told me there wasn't no use of me 
coming back, and I just stayed on at home and he come 
and picked me up.

Q: Are you hoping that perhaps you won't be prosecuted for
that escape?

A: Yeah, I hope I don't but I don't —  what they tell me,
they ain't going to charge me with escape no way.

(T. Tr. 868).
- 1  0 -



This testimony is directly contradicted by federal records 
detailing the circumstances surrounding Evans' escape.“

Evans' trial testimony was also wholly misleading regarding 
his expectations of help from State authorities in exchange for 
his cooperation in the McCleskey prosecution. As the District 
Court correctly found, the jury was left with the impression by 
Evans' testimony that no promises had been made concerning the 
pending escape charges. (R. 1220). His actual testimony before

the trial court was:
0* [Assistant District Attorney] Have you asked me to try 

to fix it so you wouldn't get charged with escape?
A: No, sir.
Q: Have I told you I would try to fix it for you?
A: No, sir.

(T. Tr. , 868-69) . On cross-examination Evans expanded upon his 
evasion regarding promises made by the State:

Q:

A:

Okay. Now, were you attempting to get your escape 
charges altered or at least worked out, were you 
expecting your testimony to be helpful m  that.
I wasn't worrying about the escape charge. I wouldn’t 
have needed this for that charge, there wasn t no 
escape charge.

(T. Tr. 882) .
That testimony, as the District Court found, is directly 

contradicted by Evans' testimony to the State habeas court 
that "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." (St. Hab. Tr. at 122).

7/ Those records show that Evans had been told by federal person­
nel that disciplinary measures would be taken against him because 
of his use of drugs. In describing his activities during his 
escape, Evans had told federal prison authorities that he had gone 
to Florida as part of an investigation dealing with ^ gs^ aî 06) . 
that he expected to be well paid .or his part. ( . '



B. The Legal Standard
Applicable Supreme Court authority supports the District

Court's conclusion that the State's failure to disclose its
promise to witness Offie Gene Evans, made by Atlanta Police
Detective Sidney Dorsey, contravened the Due Process Clause.
It is the obligation of the State —  not simply the prosecuting
attorney —  to reveal all promises or understandings between a
witness and agents of the State which might affect the jury s
judgment as to the witness' credibility. Napue v. Illinois, 360
U.S. 264, 269 (1959) expressly holds that

it is established that a conviction obtained through 
use of false evidence, known to be such by representatives 
of the State, must fall under the Fourteenth Amendment. 
(Citations omitted). The same result obtains when _the 
State, although not soliciting false evidence, allows it to 
be uncorrected when it appears.

(Emphasis added). Accord, Giglio v. United States, 405 U.S. 150 
(1972); Pyle v. Kansas, 317 U.S. 213 (1942).

Panels of this Circuit have repeatedly held that an undis­
closed promise of favorable treatment, made by a police officer 
to a government witness, is subject to the protections of the 
Due Process Clause. Smith v. State of Florida, 410 F.2d 1349 (5th 
Cir. 1969); Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1977); 
Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979); Williams 
v. Brown, 609 F.2d 216 (5th Cir. 1980); Smith v. Kemp, 715 F.2d 
1 549 ( 1 1th Cir. 1 983); Moore v. Zant, 722 F.2d 640 ( 1 1 th Cir. 1 983).

The District Court, furthermore, properly concluded that 
there was a reasonable likelihood that disclosure of the promise 
of favorable treatment to Evans would have affected the judgment 
of the jury on the murder indictment (R. 1223-25), since Evans'



testimony was critical to the State theory at trial (R. 1222):
First, he [Evans] alone of all the witnesses for the prosecu­
tion testified that McCleskey had been wearing makeup on the 
day of the robbery. Such testimony obviously helped the 
jury resolve the contradictions between the descriptions 
given by witnesses after the crime and their in-court 
identifications of petitioner. Second, Evans was the 
only witness, other than the co-defendant, Ben Wright, to 
testify that McCleskey had admitted to shooting Officer 
Schlatt. No murder weapon was ever recovered. No one 
saw the shooting. Aside from the damaging testimony of 
Wright and Evans that McCleskey had admitted the shooting, 
the evidence that McCleskey was the triggerman was entirely 
circumstantial.

*  *  . *

The court's conclusion ... is bolstered by the fact that the 
trial judge, in charging the jury as to murder, instructed 
the jury that they could find the defendant guilty as to 
either malice murder or felony murder. After approximately 
two hours of deliberation, the jury asked the_court for 
further instructions on the definition of malice. Given the 
highly damaging nature of Evans' testimony on the issue of 
malice, there is a reasonable likelihood that disclosure 
of the promise of favorable treatment to Evans would have 
affected the judgment of the jury on this issue.

(R. 1222-23)
The District Court also correctly found that Evans' testimony 

resolved contradictions in the eyewitness' testimony that McCleskey 
was one of the robbers. Evans testified that McCleskey told him 
he had been wearing makeup at the time of the roboery, thereby 
offering an explanation to the jury as to why the description 
given to police officers by one of the primary eyewitnesses 
varied so radically from McCleskey's physical appearance at
trial.

Evans' testimony that McCleskey had admitted shooting 
Officer Schlatt was obviously critical. No one saw the shooting, 
and McCleskey's statement given to police indicated only that he 
had participated in the robbery. While Ben Wright, one of the



co—defandants, testified that McCleskey had admitted the shooting/ 
under Georgia law/ the testimony of an accomplice must be corrobo­
rated. Arnold v. State/ 236 Ga. 534, 224 S.E.2d 336 (1976), 
and Wright had a clear interest in casting blame on a co-defendant.

Because the State tried the case to the jury on the theory 
that McCleskey was the triggerman and sought the death penalty on 
that ground (T. Tr. 973), Evans' testimony was critical to the 
State's case. The State's argument that Of fie Evans was not a 
key witness is contrary to the express findings of the District 
Court.—^ It is also contrary to the principal argument the

8/ This case is unlike those wherein this Court has found no 
likelihood that the deliberations of the jury would have been 
affected by revelation of the undisclosed material. In both United 
States v. Poitier, 623 F.2d 1017 (5th Cir. 1980) and United States 
v. Nixon", 634 F.2d 306 (5th Cir. 1981), the State _ failed to_ 
provide information reaarding a promise, but the jury nonetheless 
learned the details of’the State's understandings with the witness 
during the trial. In petitioner's case, the jury never learned 
of the promise to Evans, nor of any of the evidence which the 
District Court found to be highly impeaching in character.  ̂(S_ee 
R. 1255.) In United States v. D'Antignac, 628 F.2d 428 (5th-Cir. 
1930), this Court held that failure to disclose an understanding 
would not have affected jury deliberations because a series of
other promises were revealed to the jury. In United States v^
Barham, 625 F.2d 1221 (5th Cir. 1980), the Court reached the same 
result because most of the details of the agreement were revealed 
to the jury, although certain inconsistencies in testimony 
existed. The jury in petitioner McCleskey's trial heard no 
evidence indicating any promises made to Evans.Finally, in United States v. Antone, 603 F.2d 566_(5th Cir. 
1979), a panel of this Court found no reasonable^likelihood that 
jury deliberations would have been affected by the failure of the^ 
State to correct false testimony by a witness regarding the State s 
agreement to pay certain of his attorney's fees. The court noted 
that the witness "background was exposed to the jury in considerable 
detail." Included in the evidence presented to the jury in Antone 
was evidence of numerous felony convictions; the witness use of 
addictive drugs; his previous treatment for mental illness, his 
prior inconsistent statements about matters which were the 
suoject of his trial testimony; and the details of his plea bargain with the Government. In this case, by contrast, Evans 
background was not exposed to the jury. The jury did not learn 
of the agreement with Dorsey, nor of Evans' history of drug 
abuse, or the drug-related nature of his escape.

-1 4-



promise of favorable treatment would have affected the judgment 
of the jury on the issue of petitioner's conviction for malice 

8A/murder.—

II. THE DISTRICT COURT ERRED WHEN IT REJECTED PETITIONER'S CLAIMS THAT TRIAL COUNSEL FAILED 
TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL

In the District Court, petitioner contended that trial 
counsel had failed to render effective assistance of counsel 
before, during and after McCleskey's state trial. In rejecting 
those claims, the District Court committed a number of legal and 
factual errors.

Prior to petitioner's trial, which began on October 9,
1973, petitioner's trial counsel had interviewed none of the 96 
witnesses listed by the State as potential witnesses at McCleskey's

8A/ The District Court, however, concluded that there was no "riasonaole likelihood that the jury would have reached a different 
verdict on the charges of armed roDbery. (R. 1222-23). T«®Court reasoned that Evans' testimony regarding petitioner McCleskey 
participation in the armed robbery, as distinguished from Evans 
testimony r'igarding McCleskey’s intent to commit malice murder, 
was cumulative of other testimony. The Court refuse<M °  5hepetitioner a new trial or a new sentencing phase m  light of 
jury's decision to impose consecutive life sentences at the 
penalty phase. (R. 1266). Petitioner does not appeal from the 
Court's determination regarding the armed robbery convictions; he 
does, however, contend that the District Court erred when it 
failed to set aside the consecutive life sentences for armed 
robbery and order a new penalty phase on these convictions.

It is likely the jury deliberations on the sentencing for 
armed robberies ŵould have been different had the jury known of 
the impeaching evidence regarding Evans. The jury s eci l 
based on its judgments about petitioner, influenced as they were 
bj the testimony of Offie Gene Evans, that petitioner's role in the 
armed robberies including the murder of Officer Sclhatt. 
jury had disbelieved Evans on that point, it may well have imposd 
a lesser penalty for the armed robbery convictions. The District 
Court erred, therefore, in failing to grant a new penalty trial 
on the armed robbery convictions.



or the co-defendant's trials.'7 Among those whom trial counsel 
failed to interview were: (i) the victims of the Dixie Furniture
Store robbery: (ii) a Fulton County Sheriff's Deputy and an 
inmate at the Fulton County Jail, who testified regarding circum­
stances surrounding an alleged confession by McCleskey to the 
inmate: and (iii) the State's Crime Lab expert, who gave his
opinion regarding the identity of the murder weapon.

Nor were potential defense witnesses interviewed prior to
trial. Among the victims of the robbery at the Dixie Furntiure 
Store were four witnesses whose statements to police called into 
question the State's circumstantial evidence that only one of the 
robbers was in the front of the Store at the time of the shooting, 
and therefore, he was the one who shot Officer Schlatt. None of 
these witnesses, who could have supported petitioner's defense 
was ever interviewed, much less presented at trial. Nor were 
potential leads to character witnesses for the sentencing
phase pursued by defense counsel.

Defense counsel also failed to investigate the State's docu­
mentary evidence. Although the prosecution advised trial counsel 
that it intended to introduce into evidence, as aggravating cir­
cumstances at the penalty phase, evidence of McCleskey's prior 
convictions on armed robbery counts and sentences to three life 
terms in Douglas County, Georgia in 1970 (State Court R. at 47), 
trial counsel conducted on inquiry into the circumstances surround­
ing those sentences, thereby failing to discover that they had

9/ Of the 24 witnessed called by the State atonly four had testified at the preliminary hearing. (St. Hab. T . 
28.)



been set aside by the prosecutor's agreement to a new trial in 
1971, and failing to discover that the reason the prosecutor con­
sented to a new trial was that key evidence introduced at the 
trial had been seized without a valid search warrant in contra­
vention of the Fourteenth Amendment. (Fed. Hab. Tr 1817-18; 
1821-24.)

The District Court held that, although McCleskey s trial 
counsel had concluded, prior to trial, that the State's case 
would likely include testimony of an alleged "jailhouse confession 
by McCleskey, trial counsel had no duty to investigate because 
petitioner himself steadfastly denied making such a confession 
(R. 1 255).— ^ That conclusion was contrary to this Circuit's 
principles regarding the obligations of trial counsel to conduct 
an independent investigation into the facts of the case. Goodwill 
v. Salkcom, 684 F.2d 794, at 805 (11th Cir. 1982); Rummel v. 
Estelle, 590 F.2d 103, 104 (5th Cir. 1979), quoting Von Moltke v.

10/ Trial counsel admitted that his "only conclusion once he 
learned that a Fulton Deputy had been listed by the State as a 
witness was that someone was going to testify regarding a jailhouse 
confession. (St. Hab. Tr. 76.) This conclusion Dy trial counsel 
was bolstered by his knowledge that the prosecutor had a statement 
from an undisclosed person which had not been given to defense 
counsel. (St. Hab. Tr. 77.) Yet trial counsel_never interviewed 
tne Fulton County Deputy nor took any other available steps to protect 
his client against the risk of false testimony regarding a 
subject as potentially damaging as a jailhouse confession.

The District Court's reasoning that it "would be anomalous 
the, for this court to grant McCleskey habeas corpus relief on 
the grounds that McCleskey's counsel was ineffective because he 
did not disbelieve petitioner and undertake an independent 
investigation" (see R. 1255) is faulty. Trial counsel s duty 
to investigate the circumstances surrounding a confession does 
not turn on whether his client admitted he gave the confession.
Rather, the duty to investigate arises when trial counsel has a 
reasonable belief that a confession will be offered by the State, 
which is what the District Court found to be the case here.



Gillies, 332 U.S. 708, 721 ( 1 948).
Viewing the facts "from the perspective of counsel, taking 

into account circumstances known to counsel at the time," Douglas 
v. Wainwright, 714 F.2d 1432, 1554 (11th Cir. 1983); House v.
Balkcom, 725 F.2d 608, 619 (11th Cir. 1984), trial counsel failed/
to investigate when his own understanding about the facts called 
for an investigation. This Court has repeatedly held that trial 
counsel has an obligation to conduct an investigation into 
possible defenses as well as evidence in support of the State's 
case. Goodwin v. Balkcom, supra, at 810-12, 817; Scott v. 
Wainwright, 698 F.2d 427 (11th Cir. 1983); Weidner v. Wainwright,
708 F.2d 614 (11th Cir. 1983).

Furthermore, the District Court acknowledged that prejudice
resulted from trial counsel's failure to conduct an investigation
once he had concluded that testimony regarding a confession
would be part of the State's evidence:

Evans' testimony was certainly very damaging to petitioner 
and a pretrial investigation as to what his testimony may 
have uncovered the details of his escape from a halfway 
house and the pending federal charges against him, his 
"understanding" with an Atlanta police detective, his 
history of drug abuse, and his imaginative story tha*_ he 
had gone to Florida and participated in an undercover drug 
investigation during his escape. Discovery of such 
evidence would have had substantial impeachment value.

(R. 1255.) Presentation of this testimony to the jury would
likely have had a substantial impoact, both at the guilt and
sentencing phase.

The District Court also rejected petitioner's claim that 
trial counsel was ineffective when he failed to interview and 
subpoena for trial four crime scene witnesses whose testimony

-1 8-



■might have cumulatively created a reasonable doubt as to 
whether petitioner was the triggerman." (R. 1254.) The 
District Court incorrectly found that trial counsel, as a matter 
of strategy, chose to offer only one defense at trial —  that of 
alibi. (R. 1254.) Examination of trial counsel's testimony 
before the State habeas court shows this finding is clearly 
erroneous. Trial counsel testified that he chose to develop two 
defenses at trial —  one of alibi, and another that more than one 
of the co-defendants was in the front of the store at the time of

the shooting:
_ at-a that was part of the theory if the
defense in"that information was developed during the 
crossSexamination of several of the State's wrtnesses 
and one of the theories that the defense put forth wa
the fact that Ben Wright had come f r o m !hotCOfficer the front and was in fact the person who shot Officer
Schlatt.

(St. Hab, Tr. 45-46).
The District Court's finding that trial counsel pursued 

only one line of defense is thus erroneous. Rather than assess 
trial counsel's failure to interview as though trial counsel had 
rejected this line of defense, the appropriate analysis was one 
based on trial counsel's decision to present the defense at

trial.
Judged in this light, it was ineffective to fail to inter­

view prior to trial, and subpoena for trial, available witnesses
who would have offered support for one of petitioner's 
defenses, navis v. Alabama, supra; Gaines v. Hopper, 575 F.2d
1147 (5th Cir. 1978); Weidner v . Wainwright, supra; cf, Young v^

12/
Zant, 677 F.2d 392 (11th Cir. 1982).

12/ As the District Court noted, the testimony of 
witnesses who were not called by the defense could

the four 
have created

(Continued)



The District Court agreed that trial counsel’s failure to 
object to introduction of evidence of three life sentences which 
had been imposed upon McCleskey in September, 1970, constituted 
ineffective assistance of counsel. (R. 1256-57). The Court 
further concluded, however, that petitioner could not show 
actual and substantial prejudice (apparently at the guilt phase) 
and that, as to the penalty phase, while the petitioner was 
prejudiced, the Court was unprepared to grant a new trial, at 
least in part because the Court had done so on the Giglio claim. 
(R. 1257). While the Court correctly concluded that counsel was 
ineffective in failing to object to entry of the evidence of the 
three life sentences, the District Court erred when it concluded
that no relief should be granted.

Evidence introduced during McCleskey’s trial, and used at 
the penalty phase, showed that a Douglas County jury had 
imposed three life sentences upon petitioner in September, 1970. 
(Exh. JT-2). Yet, before the federal court petitioner showed 
that those three convictions and life sentences had been set 
aside upon the consent of the District Attorney to a new trial 
in December, 1971. (Exh. WM-2). Under both Georgia law, and 
federal law, introduction of the evidence of the three life 
sentences was error. Under Georgia law in effect at the time of 
petitioner’s trial, the sentences were not admissible because 
they were not based upon final judgments. O.C.G.A. § 16-1-3(4) 
and 42—5—50 (R. 900—01).

(Continued)
a cumulative doubt as to whether McCleskey was the tnggerman. 
Statements by each of them contained in ^ e  prosecutor's ftle

s.M Si-oSi'ars:3 -1. sas o-  
sr  .ia-rs satesexcerpts are set out at R. 886—87.

-20-



Under federal law, evidence of convictions tainted with
unconstitutionality is inadmissible. Zant v. Stephens, ---
u#s. ___, 103 S.Ct. 2733 at 2748, n. 23 (1983); United States
v. Tucker, 404 U.S. 443 (1972). Because trial counsel conducted 
no investigation whatsoever into the State’s evidence of the
three Douglas County life sentences (Fed. H. Tr., 1817-18,
1821), he failed to object to their admission. This constituted
ineffective assistance of counsel.

McCleskey suffered actual and substantial prejudice at
the sentencing phase from this failure. The District Court
recognized that knowledge of the invalid convictions and life
sentences would likely have affected jury deliberations. (R-
1257) The Court's determination in this regard is amply sup

13/
ported by the facts in the case.

13/ The District Attorney's argument to the jury '" g r o u n d e d  
t-h-rpe* life sentences. He asked the jury to consider 

particularly, in their deliberations, the three ^ H e 3

specify on their verdict. (T. Tr., 1018).
The iury imposed a sentence of death, rather than life, 

on the^murder Jount, and two consecutive life sentences on the 
armed robbery counts (State Trial R., at 56). The sentence 
imposed were the most severe options open to the jury.

Because the jury improperly considered in its deliberations 
on penalty, for the robbery as well as the murder convictions, 
fh/nrior life sentences which had been set aside, it is lixeiy
tha/the jury ^ - ^ / ^ r ^ u r r S a s ^ r e v t S u S / h ^ d ^ t h a f ^ r -

StPaatneeto°admftSprior invalid convictions constituted 
ineffective assistance of counsel and that

[w]e can hardly imagine anything more prejudicial 
to Nero [the petitioner] than allowing the jury in 
his arSed robbery case to hear the P^secutor’s 
comments that Nero had been convicted twice before 
of burglary and once on drug charges.

Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979)

-21-



The District Court also concluded that trial counsel had 
not been ineffective at the sentencing phase, since he made 
inquiries of McCleskey and McCleskey's sister about the avail­
ability of character witnesses who could have testified on 
McCleskey's behalf (R. 1258). However, trial counsel failed to 
pursue other avenues clearly known to him at the time, which 
would have led to favorable character testimony from witnesses 
willing to testify on McCleskey's behalf. The District Court's 
conclusion ignoring that failure is error, and petitioner is 
entitled to a new penalty phase hearing on the robbery and
murder convictions.

The State habeas record shows that trial counsel's only 
efforts to contact character witnesses for the sentencing phase 
amounted to conversations with petitioner while he was incar­
cerated, and a telephone conversation or meeting with one of 
petitioner's family members. (St. Hab, 80). Although clearly 
aware of other potential sources of information which he left 
untouched — including the minister of the McCleskey family 
church in the community wherein McCleskey grew up— trial 
counsel apparently did not contact them and personnel at the
high school which McCleskey attended. (St. Hab. 90, 83).

Had he done so, he would have been immediately placed in 
touch with church members who were neighbors of the petitioner 
when he was growing up.— 7 They would have been able to

14/ Petitioner sought to expand the federal habeas record below 
jrr inciude an affidavit from Reverend Johnson showing that he 
aid Seen !n touch with trial counsel, but that trial counsel had

(Continued)

-22-



present a positive picture to the jury of McCleskey. Similar 
testimony was available, had trial counsel sought it out, from 
other church members as well as Lemon Street High School personnel. 
Their affidavits are a part of the State habeas record. See,
e,q. (St. Hab. R. 225-26; 231-32; 227-30).

Trial counsel's failure to pursue these available avenues 
to sentencing phase witnesses was not a matter of strategic 
choice. He indicated his desire to have character witnesses for 
the sentencing phase (St. Hab. 82). Rather, his failure was 
simply a reflection of his abdication of his client's cause 
at the pre-trial investigatory p h a s e . B e y o n d  conversations with 
his client and one of his sisters trial counsel simply conducted
no pretrial investigation whatsoever.

For the foregoing reasons, the District Court erred when it
failed to grant petitioner a new trial on the ineffective assist-
ance of counsel claim.

14/ (continued)
never asked for names of persons who could have testified regard-
ing petitioner's background, which Reverend Johnson c°“*d "ave y i • j i-o 172-231 The Court denied that motion.
Tc/the^xtent * this * Court^f inds the Reverend Johnson evidence 
critical “ disposition of this question, petitioner submits the 
District Court's refusal to make it, and the accompanying affi 
davit of petitioner's former wife, a part of the record, was
erroneous.
15/ Had trial counsel conducted an independent investigation,
when he asked the jury on McCleskey's behalf to ref 1®c^  u.,mjnu v 1024), the lury would have been in a position
to cSnsidir’Mccleske/s devotion as a father; the close relation­
ship he had with his daughter; and the positive manner in which 
acauaintances described him. Trial counsel s plea that the 
jury consider his humanity would have had an evidentiary oun 
tion. in the absence of any pretrial investigation the plea
was a hollow one.

-23-



III. THE DISTRICT COURT ERRED WHEN IT REJECTED PETI­
TIONER'S CLAIM THAT HIS JURY INSTRUCTIONS CON- 
TRAVENED THE DUE PROCESS CLAUSE________________

The District Court rejected petitioner's claim that jury 
instructions contravened due process guarantees as defined in 
Sandstrom v. Montana, 442 U.S. 510 (1979) and Mullanev v. Wilbur, 
421 U.S. 684 (1975). (Relevant portions of the instructions 
are set forth in the District Court's order, at R. 1266-68, 
n.21.) Under Sandstrom v. Montana, 442 U.S. 510 (1979), a jury 
instruction is unconstitutional if it could be interpreted by 
the jury as creating a mandatory, rather than permissive, presump­
tion on an element of the crime. Moreover, even if a trial court 
suggests that the presumption may be rebutted, the instruction 
is unconstitutional if it fails to advise the jury that the 
presumption may be rebutted by "the defendant's simple presenta­
tion of 'some' evidence," Id. at 2455.

The jury instruction here created a mandatory presumption, 
and thus the District Court erred when it concluded that no
Sandstrom violation was present.

The District Court concluded that, in the alternative if 
there was Sandstrom error, it was harmless (R. 1230). That 
holding was also error. Under the erroneous instruction, peti­
tioner' s jury could well have concluded that the burden had 
shifted to McCleskey to rebut the State's case once there was 
circumstantial evidence, however weak, that the shooting occurred 
with malice. Even if the jury had disbelieved McCleskey's 
co-defendant and Evans, the presumption filled in the gap for the
State, shifting the burden to McCleskey.



It thus cannot be said, on the basis of the facts presented 
to the jury, that the instruction was harmless beyond a reason­
able doubt. The District Court erred in failing to grant peti­
tioner a new trial on the murder count because of erroneous 
instruction.

IV IN REJECTING PETITIONER'S CLAIM THAT SUBSTANTIAL 
RACIAL DISPARITIES PERSIST IN GEORGIA'S CAPITAL 
SENTENCING SYSTEM, THE DISTRICT COURT MISAPPLIED 
CONTROLLING LEGAL PRECEDENTS, MISUNDERSTOOD BASIC 
STATISTICAL PRINCIPLES, AND IGNORED CLEAR RECORD 
EVIDENCE______ ______________________ ____________

A. Introduction: Petitioner's Constitutional Claims
Petitioner alleged that Georgia's capital sentencing system, 

under which his death was imposed, has been administered "arbi­
trarily, capriciously and whimsically," (R. 17), and pursuant to 
a pattern and practice ... to discriminate on the grounds of 
race," in violation of the Eighth Amendment and the Egual Pro­
tection Clause of the Fourteenth Amendment (R. 18). The District 
Court, relying on Spinkellink v. Wainwright, 578 F.2d 582 (5th 
Cir. 1978), held that petitioner's Eighth Amendment claim was 
not cognizable, irrespective of his proof, since Georgia's 
capital statutes had been found valid in Gregg v. Georgia, 428
U.S. 153 (1976) (R. 255, 1133).

In so holding, the District Court misread both Gregg v. 
Georgia, supra, and Furman v. Georgia, 408 U.S. 238 (1972), upon 
which Gregg is grounded. The Supreme Court did no more in Gregg 
than to uphold Georgia's capital stautes on their face. It has 
long been clear that a law "fair on its face and impartial in 
appearance" may nevertheless violate the Constitution in its

-25-



application, Yick Wo v. Hopkins. 118 U.S. 356, 373-74 (1886), 
and the Supreme Court has expressly held that the Eighth Amend­
ment imposes on a State the constitutional responsibility both 
"to tailor and apply its [capital punishment] law in a manner 
that avoids the arbitrary and capricious infliction of the death 
penalty," Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (emphasis 
added); accord, Zant v. Stephens, 456 U.S. 410, 413 (1982); see_ 
also, Proffitt v. Wainwright, 685 F.2d 1227, 1262 n.52 (11th 
Cir. 1982). Since petitioner's challenge is to the application
of Georgia's capital statutes, the District Court erred in

1 6/rejecting his Eighth Amendment claim as a matter of law.
The District Court did permit petitioner to present evidence 

in support of his Fourteenth Amendment claim. Yet, in denying 
as "irrelevant" petitioner's discovery requests related to prior 
discriminatory conduct in the criminal justice system in Fulton 
County and the State of Georgia, the District Court erred again,
for such anecdotal evidence is plainly relevant to an Equal 

_ • 17/Protection claim.—

ifi/ pace constraints prevent petitioner from setting forth here 
I^full constitutional argument in support of his Eightn ^ndment
^ auironHLha! n e: f i a L r L f s ^ n c f r ? aii2”| ^ v^ ^ -
Rehearing^E^Banc^dated'"December 2”  ’At? (^rel/alter . 'Spencer 
1st Br ") 51-54 (11th Cir.), and Second Supplemental Brief Petitioner-Appellant on Rehearing En Banc, dated January 11,
1984 (hereinafter "Spencer 2d Br.') 21-23, 27-28 (11th Cir.).

Board'of Education v Penick, 443 U.S. 449 , 464 65 (1 979),
(Continued)

-26-



Nevertheless, we submit that the statistical case alone is 
sufficient to warrant relief. This Court has recognized that 
"[i]n some instances, circumstantial or statistical evidence of 
racially disproportionate impact may be so strong that the 
results permit no other inference but that they are the product 
of a racially discriminatory intent or purpose," Smith v. 
Balkcom, 671 F.2d 858, 859 (5th Cir. Unit B 1982)(on rehearing); 
cf. Adams v. Wainwright, 709 F.2d 1443, 1449 (11th Cir. 1983). 
Petitioner's comprehensive statistical evidence on the operation 
of Georgia’s capital statutes from their inception in 1973 
through 1979, demonstrating substantial, pervasive disparities 
based upon the race of the homicide victim and the race of the 
defendant, constitutes just the sort of "clear pattern, unex­
plainable on grounds other than race," Arlington Heights v. 
Metropolitan Housing Authority, 429 U.S. 252 266 (1977), that 
the Supreme Court has held to establish an Equal Protection 
violation. It is to petitioner's evidence that we now turn.

B The Facts: Petitioner Has Made Out A Compelling
Prima Facie Case Of Racial Discrimination In Capital
Sentencing ------------ ---- .--------------------
(i) Petitioner's Experts Were Well Qualified_
The statistical case-in-chief for petitioner was pre-

17/ (continued)
426 U.S. 229, 265-66 (1976). Having denied 

petitioner access to the records from which such discriminatory 
acts might have been proven, moreover, (R. 596;
Washington v . Davis

see Fed. Hab.
Tr. 1797-99), the District Court should not have faulted peti tliner for failure to introduce such non-statrsttea! evidence as 
part of its case-in-chief. (See R. 1141). If c .Review of petitioner's substantial statistical evidence leaves 
the Court with any doubts about petitioner s prima facie claim, 
U  should remand the case to the District Court for the receipt 
of this significant nonstatistical evidence.

-27-



sented through the testimony of two experts eminently qualified 
to investigate the very matters at issue. Professor David 
Baldus, petitioner's chief researcher/ testified concerning his 
background and training in law as well as his extensive experi­
ence in the development and use of social science methods to 
examine legal issues. Educated in political science at Pittsburgh 
and in law at Columbia and Yale Law Schools (Fed. Hab. Tr.
39-42)/ Baldus has pursued a distinguished research and teaching 
career/ focused upon the applications of social science methods 
to legal issues. His first major research effort, on the impact 
of certain social welfare laws, has subsequently "been reprinted 
in a number of books, and it's used in courses in sociology 
departments and in law schools to illustrate [time series] ...
methodology as a way of trying to determine the impact the

18/enactment of laws ha[s] ," (_id. 52-53).
As a result of consultations on that first project with 

Professor James Cole, a statistician, Baldus began an extended 
research collaboration with Cole on how courts should employ 
statistical evidence in evaluation of claims of discrimination 
(id. 54-55). The ultimate fruit of that effort is an authorita­
tive text in the field, D. BALDUS & J. COLE, STATISTICAL PROOF 
OF DISCRIMINATION (1980) (id. 68), widely relied upon by the
federal courts in evaluating the quality of statistical evidence
(Fed. Hab. Tr. 74-75; see DB6).

As part of his research for that work, Baldus happened to

18/ Baldus, "Welfare as a Loan: An Empirical Study of the
Recovery of Public Assistance Payments in the United States,' 25 
STAN. L. REV. 123 (1973).

-2 8-



data set on capital punishmentobtain and reanalyze an extensive
patterns collected in the mid-1960's by Professor Marvin Wolfgang-
Subsequent ly, Baldus also obtained and reviewed a second major
data set on capital punishment patterns collected at Stanford

20/
University during the late 1 950's and early 1 960 * s (id.).
Baldus further pursued his interest in capital punishment in a 
critical evaluation of the methodologies employed in two key 
studies on the deterrent value of capital punishment, .published in 
a special 1975 symposium on the death penalty in the Yale Law

i 21/Journal.—
Professor Baldus' research interest in capital punishment 

intensified after Grec^ v. Georgia in 1976 into a principal focus 
of his work:

During the succeeding seven years, Baldus devoted a major
22/portion of his research (id. 84-100), writing (id. 85-90)—  , 

and teaching energies (id. 90) to the post-Gre^ capital punish­
ment statutes and their administration, reviewing every Supreme 
Court case on capital sentencing and studying the professional

19/ See Wolfgang & Riedel, "Race, Judicial Discretion and the 
Death-Penalty, 407 ANNALS 119 (1973).
20/ See Special Edition, "A Study^of 
Jury in First Degree Murder Cases," 21 
(1969).

the California Penalty 
STAN. L. REV. 1297

21/ Baldus s Cole, "A Comparison of the Work of Thorsten Sellin. 
IKd Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 
85 YALE L. J. 170 (1975).
99/ See DB 1 at 2; e.g., Baldus, Pulaski,
— L' --- _ T-• 1 __ ___ _ ̂ ̂ ,-r ̂

Woodworth & Kyle,
^Identifying'Comparatively Excessive Sentences of Death," 33 
STAN L REV 601 (1977); Baldus, Pulaski & Woodworth, Propor- tionalityRReview of Death Sentences: An Empirical Study of the
Georgia Experience," J. CRIM. LAW s CRIMINOLOGY (forthcoming
1983) .

-29-



literature on sentencing patterns in both capital and non-capital 
cases (id. 130-31; see DB 13) as part of his preparation for the 
two studies that formed the basis of petitioner's statistical

23/case below.
Petitioner's other expert on his case-in-chief was Dr.

George Woodworth, an Associate Professor of Statistics at the 
Univeristy of Iowa. Dr. Woodworth testified that he had been 
trained as a theoretical statistician (id. 1195), specializing 
in nonparametric analysis of categorical data (the very sort of 
data at issue in petitioner's two studies) (id. 1197, 1200).
While teaching at Stanford University, Dr. Woodworth developed 
an interest in applied statistics (id. 1200), and was invited by 
the National Research Council and its chief statistician,
Frederick Mosteller, to conduct a formal review of the statisti­

cal methodology used in a major national research project (id. 
1200-01) (which employed many of the methods Baldus and Woodworth

ultimately incorporated into their own studies) (id. 154-58).
Dr. Woodworth also served as the Director of Iowa's Statistical
Consulting Center, advising researchers on appropriate statistical
techniques for over eighty empirical studies (id. 1203-04). He
has published widely in statistical journals (see GW 1, at 2-3),
and is a member of the Committee on Law and Justice Statistics of

24/the American Statistical Association (id. 1194).

o£”?hefNaht!onal3Can“ in£o? Ita^lourts
appellate capital sentencing methods and standar — .
24/ The District Court 
"Theory and application 
... analysis of discre[t

qualified Professor Woodworth in the 
of statistics, and in the statistical 
e] outcome data,” (id. 1206).

-30-



(ii) Petitioner's Data—Gathering Effort
Was Carefully Conducted__________
Petitioner's experts testified that they undertook 

two overlapping studies of the administration of Georgia's 
capital sentencing system in the post-Furman era. The first 
of these, designated the Procedural Reform Study ("PRS"), 
was designed to examine whether disparities in treatment, 
based upon race, could be found at two key "decision points 
in the Georgia system: the prosecutor's decision, following 
a murder conviction, on whether to proceed to a penalty 
trial, wnere a death sentence might be imposed, or to accept 
the automatic life sentence that follows any murder conviction 
under Georgia law; and the jury's decision, in those cases 
advancing to a penalty trial, on life imprisonment or death.
(id. 1 66-67)— ^ The universe for the PRS was defined to 
include all defendants arrested between the enactment of 
Georgia's post-Furman capital statute on March 28, 1973 and 
June 30, 1973, who were subsequently convicted of murder
some 594 individuals (id. 170—71; 192).

The second study, designated the Charging and Sentencing 
Study ("CSS"), was designed to examine possible racial discrimi­
nation at all decision points from indictment forward, including 
prosecutorial plea bargaining decisions, jury decisions on 
conviction or acquittal, and the sentencing decisions encompassed 
in the PRS (id. 261). 'The CSS was framed to include a sample 
of persons indicted for both murder and for voluntary manslaughter

25/ For a description of the statutory options available 
under Georgia law upon conviction for murder, see Gregg v.
Georgia, supra, 428 U.S. at 162-66.

-31-



(id.) during the entire period from 1973 through 1973 (id.
263-64) .— /

The data-gathering procedures have been summarized 
elsewhere (see Spencer 1st Br., App. A 11-13, 17-23). We 
will here confine our attention to four aspects of that 
process: (a) the integrity of the data sources; (b) the
strengtns of the data-gathering instruments employed; (c) 
tne care and accuracy of the coding process; and the (d)
coding conventions employed.

(a) The Integrity of the Data Sources
Professor Baldus testified that, in choosing a State for 

study, he and his colleagues "were very much concerned about the 
availability of data" (id. 160). Baldus dispatched a colleague 
"to Georgia for a period of two weeks to find out what data were 
here that we could get access to, and he returned to Iowa with a 
glowing report about the many sources of data" (id. 174-75). 
These included not only the records of the Supreme Court of 
Georgia —  which typically contained trial transcripts, trial 
judges' reports, appellate briefs, and a summary card on each 
case (id. 175; 202-04; see, e.g._, DB 29-33) —  but also pack- 
ground information on each defendant in the files of the De­
partment of Offender Rehabilitation (icL 175; 204-05) and victim 
information from the Bureau of Vital Statistics (id. 176; 205-06
see, e.g. DB 47).

26/ The PRS does not involve a sample; instead it includes 
ivery individual within the universe. The CSS, by contrast, 
embraces a universe of 2484 from which a weighted sample of 
1066 cases was drawn by scientifically appropriate procedures
(id. 265-73).

-3 2-



Most importantly, Baldus and his colleagues eventually lo­
cated "an extensive file of information on all offenders" in the 
Board of Pardons and Paroles (id. 176), which became the basic
source for the Charging and Sentencing Study.

The official Pardons and Parole files, petitioner demon­
strated to the District Court, are kept pursuant to a stringent 
state statute that requires the Board "to obtain and place in its
permanent records as complete information as may be practically 
available on every person who may become subject to any relief 
which may be within the power of the Board to grant ... [inclu­
ding] A. A complete statement of the crime for which such person 
is sentenced, [and] the circumstances of such crime ... E. Copy 
of pre-sentence investigation and previous court record ... [and] 
H. Any social, physical, mental or criminal records of such 
person." (Former GA. CODE. ANN. § 77-512). L.W. Warr, a former 
field officer for the Board, now a field supervisor (Fed. Hab.
Tr. 1327), testified that field officers (all of whom are re­
quired to be college graduates) (id. 1329), are trained to "check 
local criminal records ... go to the clerk of court, get sentence
information, indictments, jail time affidavits, we get police^ 
reports from the agency that handled the case" (id. 1330-31).—

27/ The District Court noted that "the police reports were 
missing6in^5% of the cases Una, the ?^ers treated the^arole
«a?rdtSe“ u S d ? ShJwe?er thafwhenev^ the'aKSal police reports 
were not included in Parole Board files, they were always sum­
marized, and nothing "contained in the police reports ...
"be]Routinely omit[ted]■ (Fed. Hab.Tr. 1 U U dFurthermore, Warr stated that, especially in homicide ' ,officers°often went beyond the report to "interview ^[police]  
.rej.pwc that were involved in the case (id. 1 332) . _
reason, the Pardon Board summaries were typically superior sou 
of information to the actual police reports themselves.

-33-



In homicide cases, moreover, Parole Board officers routinely 
speak, not only with the investigating police officers (id. 1332), 
but also with the District Attorney to obtain "his comments con­
cerning the case" and "his impression regarding what happened at 
the, involving the particular crime" (id. 1333). The officers 
were guided in their investigation by a Field Operations Manual 
(LW 1), which contained the following instructions, 
among others:

"3.02 ... The importance of this report cannot 
be over-emphasized; and where the offender 
has been convicted of crimes against the 
person, it is imperative that the Officer- 
extract the exact circumstances surrounding 
the offense. Any aggravating or mitigating 
circumstances must be included in the report.

*  * *

"3.02 ... Circumstances of the offense - 
This should be obtained in narrative form, it 
should be taken from the indictment, the 
District Attorney's Office, the arresting 
officers, witnesses, and victim. A word 
picture, telling what happened, when, where, 
how and to whom should be prepared."

* * *

The Parole Officer should be as thorough as ... _ 
possible when conducting post-sentences on 
persons who have received ... sentences in 
excess of fifteen years. In cases where 
arrest reports are incomplete the circum­
stances of the offenses should be obtained as 
thoroughly as possible and the Parole Officer 
should review the transcript of the trial if 
available for detailed information. A _per­
sonal interview with the arresting or investi­
gating officer is almost always a valuable 
source of information as the officer may 
recall important details and facts which were 
not revealed in the arrest report."

(Id., at 2-4) The State offered no testimony to suggest that
these standards were not regularly followed, or that the official

-34-



parole Board record contained any systematic errors or omissions 
{id. 648: "we're not in a position at this point to challenge 
the underlying data source ... from the Pardons and Paroles 
Board") —  much less any information that these files were sys­
tematically biased according to the race of the defendant or the 

28/victim.
Baldus acknowledged that some data were occasionally missing 

from the Pardons and Paroles files, as well as from the files of 
other agencies —  the Georgia Supreme Court, the Department of 
Offender Rehabilitation, and the Bureau of Vital Statistics —  to 
which he also turned (id. 205-06). The only important categories 
of missing data, however, involved information on the race of the 
victim, on whether a penalty trial had occurred, and on whether a 
plea bargain had been offered (id. 586-88) Baldus took extra­
ordinary steps to obtain this information from official files, 
even writing systematically to defense counsel and prosecutors to 
secure it where official sources failed (id. 587-88; see DB 
45, 46). Moreover, petitioner sought without success to secure

28/ In light of this uncontradicted testimony, the District^- 
E r t - s  findings that »[t]he information available to the coders
from the Parole Board Files was very summary, (R*.l ' * dthat "[t]he Parole Board summaries themselves were brie 
"incomplete ] (id.), are at least misleading, if not clearly
erroneous.
29/ Despite extensive testimony explaining the rationale under 
■^hich the coders were instructed to code certain information
"U"
27, 
ness

or
ne coaers ---- -- AJ,_4c qoi-"unknown" in Baldus’ questionnaires (see id; . 444„lJ' __

1684-90), and further testimony 
of Baldus’ use of the "U" code

on the scientific appropriate- 
(id. 1761-64), the District 

Court suggests throughout its opinion that this accepted coding 
convention represents "missing data" (R. 1163-67). We deal ^xth 
the "U" coding issue and its actual effort on Baldus analyses
p ag e s

-35-



these data from respondent during the discovery process (R.
556; 595-96; 599; 615).

In the end, the amount of missing data proved scientifically 
insignificant. Only 5 of the 594 cases in the PRS lacked race- 
of-victim information (id. 1096; 1705-06); for the CSS, the 
number was 63 of 1066 (id.). Penalty trial information was missing 
in only 23 of the 594 for the PRS (id. 1104), in an estimated 20 
to 30 of 1066 cases in the CSS (id. 1119-21). Plea bargaining 
information —  information not on record facts about whether 
bargains were accepted and pleas entered, but rather more informal 
information on whether pleas had been unsuccessfully sought or 
offered (id. 1152-53) —  was obtained for sixty percent of the 
cases (id. 1153). As petitioner's expert noted (id. 1765-66; 
see Fed. Oct. Tr. 82) and as commentators have agreed, missing 
data at a rate of 10 to 12 percent normally does not produce any 
systematic bias in ultimate outcomes, see, e ^  Vuyanich v_;_ 
Republic Nat11 Bank of Dallas, 505 F. Supp. 224 , 257 (N.D. Tex. 
1 9 8 0 ), vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984).

(b) The Quality of the Data-Gathering Instrument 
During the data collection effort for the PRS and the CSS, 

Baldus and his colleagues developed and employed three separate 
questionnaires —  two for the PRS, and a third, modified and 
improved instrument for the CSS. The initial PRS "Supreme Court

30/ To confirm those theoretical judgment, Baldus ..that he performed a wide range of alternative analyses, including 
those specifically recommended as appropriate bY ^pondent 
experts (id. 1501), precisely m  order to see whether these missing da^ might have affected the persistent racial disparities 
that he found (id. 1101; 1694-1708). None did.

-36-



Questionnaire" (see DB 27) was 120 pages in length , devised 
through a lengthy drafting process. "We sought to identify,
Baldus testified, "any variable that we believed would bear on 
[the] matter of the death worthiness of an individual offender's 
case ... relating to the nature of the crime, the personal charac­
teristics of offender, characteristics of the victim" (id. 194-95).

The initial Supreme Court Questionnaire proved of unwieldy 
length for use in the field (id. 208). Therefore, although 330 
cases in the PRS study were eventually coding using this instru­
ment (id. 200; see DB 28, at 2), Baldus developed a revised 
version, designated the "Procedural Reform Questionnaire (se_e 
DB 35). The Supreme Court Questionnaire was actually coded in 
Iowa, by coders who employed copies of original court documents 
obtained from official Georgia files (see, e.g., DB 29-33 ), as 
well from detailed abstracts of the files and a written case 
summary provided on each case by Baldus’ Georgia coders, (see DB 
33) (Fed. Hab. Tr. 208-15). However, the 351 Procedural Reform 
Questionnaires were all filled out in Georgia, in the offices of 
the public agencies involved, with "the source document literally 
at [their] fingertips when [they] did the coding (_id. 36o).

One major feature of both PRS questionnaires (as well as 
the CSS questionnaire) was their inclusion of a "narrative 
summary" section, in which the coders could register important 
information that was not otherwise covered the questionnaire.
As Professor Baldus explained, "[w]e had no illusion that our 
questionnaire could capture every nuance of every case. But we 
wanted to De able to record that somehow. So we entered that

-37-



Baldus alsoinformation on these ... summaries" (_id.). 
created an "other" category for certain questions to permit a
coder to include unforeseen but possibly relevant information.

Despite the comprehensiveness of the PRS instruments, the 
CSS questionnaire (see DB 38) marked a substantial improvement 
in several respects. First, Baldus included a number of vari­
ables to capture the strength of the evidence (Fed. Hab. Tr. 
274-75). Second, he added additional variables on legitimate 
aggravating and mitigating factors (id. 274). Third, Baldus 
virtually abandoned the "foil entry" format employed in the PRS 
questionnaires, under which a coder could occasionally find too 
few foils on which to enter relevant data in response to partic-

33/ular questions (_idi.) .—

32/

31/mony

In

The District Court apparently misconceived Baldus^ testi-
__ _ concerning these summary documents, stating that "an
important limitation placed on the data base was the fact that 
the questionnaire could not capture every nuance of every case.
R. 239" (R. 1159). In fact, the summaries were included pre­
cisely to permit Baldus to capture such nuances.
32/ The District Court also treated this "other" coding feature 
“as if it were a deficiency in the questionnaire design, not an 
asset (R. 1168). In fact, it permitted Baldus to capture addi­
tional information and determine whether some unforeseen, factor 
may have had a systematic impact on his analyses (id. 1708-09). 
Baldus re-analyzed the "other" response in some of-his alterna­
tive statistical analyses, finding that their inclusion had no 
effect whatever. It in no way diminished the racial effects, 
fact, it intensified them slightly" (id. 1710).
33/ The District Court faulted the questionnaires for their use 
ol the foil method (R. 1159-60), without making clear that this 
method was largely a feature of the PRS study —  which played 
only a minor role in Baldus' analyses. Almost all of the major 
analyses were conducted on the CSS data (id_. 1 437). Even so, as 
a check on the impact of the foils, Baldus identified some o 0 PRS 
cases in which there was "overflow information ... that wouldn t 
fit into the original foils," recoded all of the important 
variaoles from the PRS in which the foil method nad been employed 
re-ran his analyses and "found that the results were_identical, 
and in fact, the race effects became somewhat intensified wnen 
this additional information was included" (id. 1099-1100). A 
recoding of the only two items on the CSS questionnaire that had 
retained the foil method obtained identical results (_ia. 1101).

-38-



The State's principal expert conceded that the CSS instru­
ment was "an improved questionnaire” (id.. 1 392); indeed, respon 
dent never proposed or identified any variables or set of vari­
ables, not included in the analyses, that might have eliminated
the racial disparities reported by Baldus (ld^ 1609).

(c) The Care Employed in Coding
The coding process for both studies employed "state-of-the- 

art" procedures designed to ensure uniform, accurate collection 
of data. initial coding for the PRS study was overseen by a law 
graduate (id. 207-05) who developed with Baldus a written 
"protocol," a series of careful instructions to coders meant to 
achieve consistent treatment of issues by regularizing coding
practices (id. 227-28; see DB 34).

To complete the questionnaire for the CSS study, Baldus 
employed as his supervisor Edward Gates, one of the two coders 
who had earlier worked on the PRS study (id.). He recruited 
five coders in a nationwide law school search (id. 301); Baldus 
flew to Georgia for a week in June of 1981 to train the students,34/
explain the extensive written protocol (id. 310-11)—  ; see DB 
43) and code practice questionnaires with them (id. 309). 
Throughout the summer, Baldus maintained daily telephone contacts 
with Gates and the coders to resolve any issues presented by the

coding (.id.. 4 00).
The State's expert purported to test the coders' accuracy, 

not by checking questionnaires obtained through discovery

34/ The written protocol, as this Court can observe from even 
ilick review (see DB 43), involved hundreds of instructions on 
both general coding issues and specific issues for particular
questions. The District Court's statement that "the coders
given two general rules to 
does hardly justice to the 
the coders .

were
resolve ambiguities of fact (R. 1157) 
care taken in providing guidance to

-39-



against files in the State's possession, but by runninq computer 
comparisons on those cases included in both the PRS and CSS 
studies. This computer check generated a list of ostensible 
"mismatches" which the State implied were indicative of multiple 
coding errors. The District Court apparently credited this 
argument (R. 1162).

The State's expert admitted, however, that in compiling 
"mismatches" he had made no attempt to compare the coding 
instructions from the PRS and CSS protocols, to see whether in 
fact coders had been following identical rules (id. 1447). In 
fact, as Baldus and Gates both testified, instructions for cod­
ing items in the two studies were often quite different. As a 
general example, in the PRS, coders were required to draw reason­
able inferences from the file (id. 367); in the CSS, they were 
not (id.). By way of further example, protocols for the coding 
of the (b)(3), (b)(7) and (b)(10) aggravating circumstances were 
very different in the PRS and CSS studies. In short, as the 
State was forced to concede, "I don't believe Dr. Katz is indi­
cating either one is necessarily right or wrong in his judgment. 
He's just indicating he’s done a computer count and found these 
inconsistencies" (id. 1444).

Professor Baldus testified on rebuttal that he had performed 
an extensive analysis of the State's alleged mismatches, employ­
ing the official file materials and the narrative summaries, to 
determine whether the inconsistencies represented coding errors, 
rather than differences in PRS and CSS coding instructions or 
differences due to data sources relied upon (i_d. 1718-19) (many 
of the PRS cases were coded from Georgia Supreme Court materials,

-40-



whereas all of the CSS cases were coded from the Pardons and 
Paroles Board files). Baldus reported that "the 
average mismatch rate was 6 percent, of which one percent ... 
were attributable to either a coding error or a keypunching 
error or data entry error of one sort or another" (id., 1719). 
Baldus added

"that translates into an error rate of approximately 
one-half of one percent in each of the two studies.
However, we found on further examination that ... 
the error rate in the Procedural Reform Study was 
higher than it was in the Charging and Sentencing Study.

(Id. 1719-20). Since the CSS study was the basis for most of
Baldus' analyses (id. 1437), it appears that the actual error
rate was extremely low.

(d) The Basic Coding Conventions
The State vigorously attacked one coding convention relied on 

by Baldus and his colleagues throughout the PRS and CSS studies: 
the use of a "U" or "unknown" code. Edward Gates explained that 
coders were instructed to enter a "1" if a fact were "expressly 
stated in the file" (id. 444), a "2" if the fact were "suggested 
by the file but not specifically indicated" (id. 444-45), a 
blank if the fact were inconsistent with the file, and a "U if

35/ The District Court noted that there were inconsistencies 
Eitween the coding of "several variables" for petitioner McCleskey 
and his co-defendants (R. 1161). The Court's only reference is to 
testimony indicating that in the PRS study. Petitioner McCles ey 
was coded as having three special aggravating ^actors while co-defendant Burney is coded as having only two. Gates testified 
that coding provisions for co-perpetrators in_the CSS study wereof precisely defining the differences 

different actors in the crime played" 
discrepencies appear to pose no threat 
were largely based on CSS data, coders were allowed to code the cases 

1110-13), for the CSS, Baldus 
single coder complete ques-

"far superior ... in terms 
between the roles that the 
(id. 471) . Once again the 
to Baldus' analyses, which 
Indeed, although different 
of co-perpetrators in the PRS (id. 
developed the practice of having ationnaires on all co-perpetrators (id. 1124-26)

-41-



the coder could not classify the item based on the file (id.)
As Professor Baldus explained:

"What an unknown means basically as it's coded in 
the Charging and Sentencing Study is that the ... 
information in the file, was insufficient to 
support an inference as to the occurrences or the 
non-occurrence of the event.... The idea w the file would not support an inference of an occur­
rence or non-occurrence, then we would further presume 
that the person who created that file or who had the 
information that was available in that file would be 
in a state of ignorance with respect to that fact.
Furthermore, upon the basis of my knowledge of 
decision making and also on the basis of my Prac­
tical experience, when people are ignorant_about 
a fact, that fact does not become a determinant 
in the decision making.

(Id_. 1 684-85).
In sum, while the CSS instrument permitted the coders to 

reflect the distinction between the affirmative non-existence of 
a fact in the file (coded blank), and uncertainty about its 
possible non-existence (coded "U"), once statistical analysis 
began, the "U" was properly recoded as not present.

Baldus offered as an example of this logic the aggravating 
variable that the "victim pltf for his life." If there had been 
witnesses present during the crime, a coder would code that 
variable either present or absent, depending on the witnesses' 
accounts. But if there were no witnesses or. other evidence, 
Baldus reasoned there was no way to make an inference either
way, and the item would be coded "U" (id. 1685-86; see also id. 

36/1155-58).—

36/ The District Court's counter-example completely missed the 
point Twice the Court adverted to a case in which the de en 
told four other people about the murder, but in which the coder 
was unable to determine from the file whether the defendant had

(Continued)

-42-



This explanation casts in a radically different light the 
District Court's ominous-looking list of variables coded 'U in 
more than ten percent of the data (R. 1163-65). Many involve 
either state—of—mind or relational variables that are often 
unknown to any outside investigator. For example, while 
"Defendant's Motive was Sex" may be important _if known to a 
prosecutor or jury, if the fact can be neither eliminated nor 
confirmed from the evidence, Baldus' rule would be to code it 
"unknown," and ultimately discount its impact either way by 
treating it as non-existent.

The District Court appeared to challenge the basic logic of 
this coding treatment: "the decision to treat the "U" factors
as not being present in a given case seems highly questionable 
... it would seem that the more rational decision would be to 
treat the "U" factors as being present" (R. 1163). Yet no 
expert in the case —  neither petitioner's (id. 1184-90 (Baldus);

36/ (continued)
been bragging or expressing remorse. (R. 1160, 1161-62). The 
Court reasoned that "[a]s the witnesses to his statement were 
available to the prosecution and, presumably, to the jury, that 
information was knowable and probably known. It was not, 
however, captured in the study" (R. 1160).

The Court's reasoning assumes that the defendant must have 
either been bragging or expressing remorse, and that the prose- 
cutor, by interviewing the four witnesses, must have ascertained 
which. It is equally likely, however, that the defendant told 
others about the murder without either bragging or expressing 
remorse. In that case, the file would properly reflect the 
contact with the witnesses, but would not reflect bragging or 
remorse. Under Baldus' rules the coder would code "unknown ana 
the bragging and remorse would ultimately be treated as not 
having occurred. Only if the prosecutor and jury had known of 
bragging or remorse, but the parole officer had somehow failed 
to learn of it in his review of the transcript, in his talxs 
with the police and the District Attorney, or in his review of 
police files, would "U" be a misleading code.

-43-



1761-63 (Berk)) nor respondent's (id. 1503; (Katz); 1656-58
(Burford)) suggested that a "U" should be coded as "1 or present
for purposes of analysis. Indeed, Dr. Berk, petitioner s
rebuttal expert, testified that the National Academy of Science
panel on sentencing had expressly considered this issue during
its two-year study of sentencing research and had endorsed the
very approach Baldus adopted (id. 1 761—63) . The District
Court's conclusion that a contrary code should have been used

37/is without foundation in the record.
(iii) The Statistical Methods Were Valid and Appropriate
Having gathered and compiled their data, Baldus 

and his colleagues employed a wide variety of statistical 
procedures to analyze it, including cross-tabular comparisons 
(id. 683, 701-05), unweighted least squares regressions (id. 
689-700), weighted least squares regressions (id. 1222-25), 
logistic regressions (_id. 917-18), index methods (_id. 1 234-36), 
and qualitative case comparisons, or so-called "cohort" studies 
(id. 1049-59).

Baldus employed these methods on progressively more elaborate 
"models," or groups of variables chosen to determine whether the 
race—of-victim and race—of-defendant disparities could be reduced

37/ Moreover, Baldus testified that, among a series of alterna­
tives analyses he conducted to test the effects of his U coding 
rules (see generally, Fed. Hab. Tr. 1194-1704 and DB 120-123), 
he recoded unknowns as "1" or "present" just as the Court had 
recommended. The effects on racial disparities "were within a 
percentage point of one another and all the co—efficients that 
were statistically significant in one analysis were in the 
other" (id. 1701). Another alternative analysis, employing 
"list-wise deletion" of all cases with "U" codes, recommended by 
the State's principal expert, (_id. 1 501-02), also had no adverse 
effect (id. 1695-96); see DB 120); indeed it increased the 
race-o f-Uct im coefficient by two percentage points.

-44-



or eliminated: Baldus explained that no single methods of
statistical analysis, and no single model, was invariably infall­
ible, but that if statistical results could persist, no matter 
what methods were employed, a researcher could have great confidenc 
that the "triangulated” results reflected real differences:

It's this widespread consistency that we see in the 
results ... it's this triangulation approach, if you 
will, that provides the principal basis for our 
opinions that there are real racial effects operating 
in the Charging and Sentencing System,"

(Id. 1082-83).
The District Court failed throughout to appreciate the 

logic of this approach. Instead it rigidly, and petitioner 
submits erroneously, refused to admit "except as to show process" 
a series of relevant models, solely because they did not include 
variables the Court thought should be included (see _id. 742-46;
755; 760; 768; 771-73; 779; 981-82; 984). Indeed, the Court's 
approach throughout the hearing was to fault Baldus' models _fo.r, 
failure to account for unspecified "unique" factors ( e.g ., icl.

38/925; Fed. Oct. Tr. 92). The Court reasoned -- contrary to
the expert testimony of Baldus (Fed. Hab. Tr. 808-1 9); Woodworth 
(Fed. Oct. Tr. 55); and the State's expert Dr. Burford (id. 1673)

38/ The Court also overlooked in its opinion that, at the 
Invitation of petitioner's experts, it was able to test its_ 
own "Lawyer's Model," constructed by the District^Court^during 
the August 1983 hearing to reflect those factors it believed to 
be most likely to predict the sentencing outcome (id. 810; 1426; 
1475-76; 1800-03; see C-1). Baldus' subsequent analyses employ­
ing the Court's own model showed sharp differences in sentencing 
outcomes by racial category (R., 735, 736). Strong and statis­
tically significant race-of-victim effects were reflected upon 
regression analysis, whether employing the least squares (R.
738) or the logistic approach (R. 739), and Baldus^averred that 
these analyses further reinforced his earlier testimony. (See 
generally, R. 731 -752).

-45-



_ that since Baldus testified that he had identified 230
variables that might be expected to predict who would receive 
death sentences, "it follows that any model which does not 
include the 230 variables may very possibly not present a whole 
picture" (R. 1171). If respondent had demonstrated that peti­
tioner's racial disparities only appeared in smaller models, but 
disappeared or were substantially reduced whenever 230-variable 
analyses were conducted, the District Court's position would 
rest on logic and precedent. Since, however, as we will demon­
strate below, the race-of-victim disparities continue to show 
strong effects in large models as well as small, the District 
Court's position is without support. As a matter of fact, it is 
clearly erroneous; not even the State’s expert advanced such a 
contention. As a matter of law, it has no allies. No prior case 
has ever intimated that only large-scale models can constitute 
relevant evidence in a statistical case. See, e ^ ,  Eastland v._  
Tennessee Valley Authority, 704 F.2d 613, 622-23 n.14 (11th Cir. 
1983) .

(iv) The Results Make Out A Prima Facie Case 
Of Racial Discrimination ________ ____

To begin his analysis, Baldus first calculated sentenc­
ing outcomes by race, unadjusted for any additional variables or
background factors.— 7 The pattern he found (DB 63) revealed

40/marked racial disparities:

39/ Each of these analyses was conducted on the CSS data, unless 
otherwise noted.
40/ These results closely parallel earlier Georgia findings. 
Bowers & Pierce, "Arbitrariness and Discrimination under 
Post-Furman Capital Statutes," 26 CRIME & DELINQ. 563, 599 
(1 980) .

-46-



Black Defendant/ 
White Victim

.22
(50/228)
(id. 730-31) 
However, 
an hypothesis 
hypotheses that

White Defendant/ 
White Victim

.08
(58/745)

Black Defendant/ 
Black Victim

.01
(18/1438)

"[t]his table

White Defendant/ 
Black Victim

.03
(2/64)

merely generatesBaldus made it clear that
. it has no controls. There are many rival
could explain these relationships" (.id. 731).

Baldus thus began a series of analyses, steadily adding
background variables to his multiple regression analyses, 
thereby "controlling for" or holding constant the effect of those 
factors, to see if an independent racial effect would persist. 
Baldus found strong racial effects when he controlled for all of 
Georgia's statutory aggravating circumstances (DB 78) and in 
addition, for 75 mitigating factors (DB 79). In DB 80, Baldus 
presented an important table which compared the racial effects 
in several, increasingly complex models. Excerpts from that
table reveal the following:

Before 
Adjustment 
for any Back- 
qround Factors

After Adjust­
ment for the 
Other Vari­
able Racial

After further 
Simultaneous 
Controls for 

Nine Background 
Variables___

Race of
Victim .10 *17

(.0 0 0 1 ) (.0 0 0 1 )
.07( .001 )

After
Simultaneous 
Control for 

230 + Non Racial 
Factors_____

.06
(.01)

Race of
Defendant -.03 *10(.03) (.001)

Baldus noted that while the coe 
declined somewhat as additional

.04 .06
(.10) ( -01 )

41/ * •fficients for race—of-victlm
background variables were added

41/ Professor Baldus testified that a regression coefficient 
Is a summary figure that provides the average disparity, with

(Continued)
-47-



to the analysis, and that while the measures of statisticalA /
significance also declined,—  both figures remained signifi­
cant. Baldus explained that it is "quite unusual to see an 
event like that," since so many of the 230 variables were 
themselves correlated with both the race of the victim and the 
sentencing outcome, a fact that could be statistically expected 
to suppress the magnitude of the racial variable (id. 804).

To examine the relative power of the race-of-victim 
and race-of-defendant variables in sentencing decisions, Baldus 
compared them with other important sentencing variables, rank- 
ordered by their coefficients (DB 81, 82). The impact of the 
race-of-victim variable proved of the same order of magnitude 
as major aggravating factors such as whether the defendant had 
a prior record of murder, or whether the defendant was the
prime mover in the crime (id. 812-15).

Baldus then continued his analyses, looking at other
models that might eliminate the racial effects. ..Petitioner s 
Exhibit DB 83 includes a variety of such models, some employing 
all 230 of Baldus' recoded variables. All of these models show

41/ continued
and without the presence of a variable, across all the cases 
(id. 690-94). A coefficient of .06 for a variable means tha 
the presence of that variable, after controlling for all other 
factors in the model, would increase the outcome of ^terest 
(here, a death sentence) by an average of six percentage points
(id. 692-93) .
42/ Statistical significance, Baldus explained, is a measure 
3f the likelihood that, if in the universe of cases as a whole 
there are in fact no disparities, one could have obtained 
disparate results merely by chance (id. 712-15). Normally 
expressed in "p" values, a figure of .0! means the likel hood 
that the coefficient is merely a chance finding is 1-in 100, 
figure of .0001 would mean 1-in-10,000.

-48-



strong race-of-victim and race-of-defendant effects.
43/

W.L .S. REGRESSION RESULTS
A B C

Coefficients and Level
of Statistical SignificanceNOn“i\ci Cidi

Variables in Tho An a1 VS is Race of Victim Race of Defendant

a) 230 + aggravating, 
mitigating, evidenti-

.06 
( .02)

.06 
(.02)

ary and suspect 
factors

b) Statutory aggravating 
circumstances and

.07 
(.01 )

.06 
( .01 )

126 factors derived 
from the entire file 
by a factor analysis

c) 44 non-racial vari­
ables with a statist!-

.07
( .0002)

.06
( .0004)

cally significant 
relationship (PC.10)
to death sentencing

.06
( .001)d) 14 legitimate, non- 

arbitrary and statis­
tically (P<.10) sig­nificant factors 
screened with W.L.S. 
regression procedures

.06
( .001 )

e) 13 legitimate, non- 
arbitrary and statis-

.06
( .001)

.05 
( .02)

tically significant
(P<.10) factors screened with logistic 
regression procedures
Baldus adopted yet a different approach to analyze

precisely where in the system the racial effects were having

their impact. Employing a recogn ized social science technique,

43/ In light of DB 81 and DB 83, as well as DB 102 and DB 105, 
the District Court was clearly erroneous in asserting that 
"[t]he best models which Baldus was able to devise w i 
account to any significant degree for the major non-racial 
variables, including strength of the evidence, produce no 
statistically significant evidence that race plays a part in 
either of those decisions in the State of Georgia (R.

-49-



the "index method," (see id. 877, 1234-36) he sorted the cases 
into roughly equal groups based upon their predicted likelihood 
of receiving a death sentence (id^ 877-79); he then analyzed 
racial disparities within those groups, which included increas­
ingly more aggravated cases (see DB 89). Noting that the likeli­
hood of a death sentence rises dramatically in the most aggravated 
groups, Baldus further divided the top groups into eight subgroups 
for analysis. As the excerpted portion of that table (DB 90) 
reveals, there are clear race-of-victim differences —  especially 
in the middle range of cases -  which are statistically significant
overall at a .01 (1-in-100) level.

Predicted 
Chance of 
a Death

Average 
Actual 
Sentencing 
Rate for

Death Sentencing 
Rates for Black 
Defendant Involving

1 (least) 
to 8(hiqhest)

the Cases 
at Each 
Level

Wh ite
Victim
Cases

Black
Victim
Cases

1
V

.0
(0/33)

.0
(0/9)

.0
(0/19)

2 .0
(0/55)

.0
(0/8)

.0
(0/27)

3 .08
(6/76)

.30
(3/10)

.11
(2/18)

4 .07
(4/57)

.23
(3/13)

.0
(0/15)

5 .27
(15/58)

.35
(9/26)

.17
(2/12)

6 .17
(11/64)

.38
(3/8)

.05
( 1/20)

7 .88
(51/58)

.91
(20/22)

.75
(6/8)

Arithmetic 
Difference 
in Rate of 
the Victim 
Rates
(Col. C- Col. D)

.0

.0

.19 

.23 

.18 

.33 

. 1 6

Baldus observed that there was little disparity in the less
aggravated cases, ”[b]ut once the death sentencing rate 
begins to rise, you'll note that it rises first in the white

-50-



victim cases. It rises there more sharply than it does in the 
black victim cases" (id. 882-83).— ' Baidas testified that, 
in his opinion, these data supported an hypothesis first advanced 
by Harry Kalven and Hans Zeisel in their work, THE AMERICAN JURY

1 64-67 ( 1 966) ,
"what they call the liberation hypothesis and in short 
what it was, that the exercise of discretion is concen 
“Dated in tie area where there's real room for choice.
rwlhen you look at the cases in ... the midrange,S eDKs?: ^ f y o ^ e f ^ ^ ^ D ° « e r ~ s e

%  ercu ary
Of discretion, and it is in the context of ^bitra Y 
decisions that you see the effects of arbitrary 
possibly impermissible factors working.

(Id. 844)
Baldus and Woodworth marshalled a substantial body of 

evidence in support of this liberation hypothesis during the 
evidentiary hearing. The most striking illustration was the 
figure constructed by Woodworth to illustrate the differential 
rates at which the likelihood of receiving a death sentence rises 
in Georgia for black victim and white victim cases, given similar 
levels of aggravation. Woodworth noted that, according to this 
graph, petitioner Warren McCleskey's level of aggravation 
"placets] him in a class of defendants where there is roughly a

i v  f ^ r s “ DcD h ? D ^ t as ^ r D » L ^ r ntoei " d “t thtertimo^:s-
that°DB 89 reports "higher racial disparities in the S25|

ss s r s i i - i r r i & i s i i : , !  « ‘ ^ r
“ i ' c a ^ - m o S ?  of^ them'very Sun aggravated . It is only in^BJO,
which comprises the subset of cases in ^ r i ^  ^  middle
sentence become% ^ gn^ Ca^ [ q q 2 - 8 3 ) Like DB 89, moreover, DB 90 range appear. (Fed. Ha . _ • ..uo rnurt' s surmise towas built by employing regression analysis, the Court
the contrary is clearly erroneous.

-51-



G\k] 8
Figure 2: Midrange- 7 Model With Interactions and Nonlineanties

Black. Defendants

a/ The curves represent 95% coni, 
sentencing rate at increasing 
conouter output).

idence bounds on the 
levels of aggravati

average death 
on (redrawn from



twenty percentage point of greater disparity between black victim 
cases [and] ... white victim cases," (id. 1734-35).

[See GW 8]
Baldus performed a wide variety of further analyses 

which we cannot fully review within the confines of this brief.
A few, however, reguire additional attention. The District Court, 
unguided by experts for either petitioner or respondent, suggested 
that DB 95 was "perhaps the most significant table in the Baldus 
study," since it "measures the race of the victim and the race of 
the defendant effect in the prosecutorial decision to seek the 
death sentence and the jury decision to impose the death sentence 
(R. 1185). The Court noted that "[t]he coefficients produced by 
the 230-variable model on the Charging and Sentencing Study data 
base [in DB 95] produce no statistically significant race of the 
victim effect either in the prosecutor's decision ... or in the
jury sentencing decision" (R. 1186).

The Court's statement in a literal sense is accurate.
It disregards, however, that the CSS figure, P=.06, is in fact
marginally significant; that the equivalent PRS model does pro-

45/duce a statistically significant result; that the smaller
46/model results were highly significant; and that an analysis

45/ The Court discounted this figure as "totally invalid 
for [the PRS Model] contains no variable for strength 
of the evidence" (R. 1185). In so doing, it ignored Baldus' 
obvious point that strength of the evidence was substantially 
controlled for in the PRS, since the universe was limited by 
definition to cases in which a conviction —  presumably based 
on evidence sufficient beyond a reasonable doubt had 
been obtained (Fed. Hab. Tr. 124-25).
46/ The Court stated that it "knows of no statistical convention 
which would permit a researcher arbitrarily to exclude factors on 
the basis of artificial criteria" (R. 1186). Baldus in fact testified without contradiction that such a procedure is commonly 
used in statistical analyses. (The State's principal expert 
employed a variant of it throughout his testimony.) (See, e.g., 
Resp. Ex. 26, 43, 45, 50).

-52-



of the combined effect of the prosecutorial and jury decision
(see DB 98) showed a series of highly statistically significant
race-of-victim effects. In truth, what the Court has done is to
identify one of the very few large model coefficients for the
race-of-victim variable in either study that is not statistically
significant, brand it as a key figure, and then disparage all
collateral evidence that places it in context. Such an approach
to petitioner's comprehensive statistical evidence constitutes a
legally insufficient basis to reject petitioner's persistent

47/racial findings.
The second series of analyses that require comment 

are those directed toward Fulton County (where petitioner was 
tried) and toward petitioner's own case. Baldus conducted both 
quantitative and qualitative studies of death sentencing rates

48/in Fulton County which were reflected in DB 106 through DB 116. 
Baldus testified that a repetition in Fulton County of the pro- 
gressively more elaborate analyses he had conducted statewide 
"showed a clear pattern of race-of-victim disparties in death 
sentencing rates among the cases which our analyses suggested 
were death eligible" (id. 983). Regression analyses at succes-;-

47/ The District Court also chose to impugn the integrity 
of petitioner or his experts in discussing this exhibit, 
noting that "we are given no outcomes based on the larger 
scaled regression," although the Court "does not understand 
that the analysis was impossible, but instead ... that because of the small numbers the result produced may not have 
been statistically significant" (R. 1187). The Court is 
wrong; such analyses employing these small numbers are statistically inappropriate. See e.g. , Halinski and Feldt,
"The Selection of Variables in Multiple Regression Analysis,"
7 J. EDUC. MEASUREMENT, 151 (1970). We note, morever, that 
both in this table and elsewhere, petitioner and his experts 
regularly reported non—significant findings even when statisti­
cal procedures could be appropriately conducted upon them.
48/ The District Court refused to admit DB 106 (id. 979),
DB 107 (id. 981-92), and DB 108 (id. 984), holding that because 
they did not sufficiently control for background variables they 
were irrelevant. This holding is legally erroneous.

-53-



sive stages in the charging and sentencing process revealed highly 
significant racial disparities at two points: the prosecutor's
plea bargaining decision and the prosecutor's decision to advance 
a case to the penalty phase (_id. 1 038-39). While Baldus necessar­
ily tempered his evaluation of these results because of the small 
size of the universe (_id. 1 040-43), he noted that "these coeffi­
cients are very large, it's not as if we're dealing with small 
coefficients, these are substantial. So that leads me to believe 
that what you're seeing is evidence of a real efficient" (i_d. 1 044).

To supplement this statistical picture, Baldus con­
ducted two cohort studies, one of the "near neighbors" cases, 
those which scored most like petitioner McCloskey in an overvall
"aggravation index" (id. 986-91). Having identified 32 near 
neighbors, Baldus sorted them into typical, more aggravated, and 
less aggravated groups (id. 991). Computing death sentencing 
rates by race of victim and race of defendant, Baldus found sig­
nificant disparities; in McCleskey's group, the disparity was 
.40 (id. 993).

In a second cohort study Baldus examined 17 defendants 
involved in the homicides of police officers. Two among the 
seventeen, including petitioner McCleskey, went to a penalty 
trial. The other defendant, whose police victim was black, 
received a life sentence (id. 1050—62; DB 116); petitioner s 
sentence was, of course, death. "[T]he principal conclusion 
that one is left with," Baldus testified, "is that ... this 
death sentence that was imposed in McCleskey's case is not 
consistent with the disposition of cases involving police 
officer victims in this county" (see also 1085-86).

Finally, Dr. George Woodworth, petitioner's expert 
statistician, testified concerning the likely impact of the

-54-



racial variables on a case at petitioner McCleskey's level of 
aggravation. Woodworth noted that, using his exhibit GW-8 , 
he had computed the race-of-victim disparity at petitioner's 
level of aggravation to be 22 percentage points (_id_* 1738).
He then turned to DB 90 and observed an 18 percentage point dis­
parity by race at petitioner's level (,ic[* 1739). Calculated by 
use of an unweighted logistic regression, the racial disparity 
was 23 percent (id. 1740). Woodworth concluded:

So it would seem that at Mr. McCleskey's level of 
aggravation the average white victim case has approxi­
mately a twenty percentage point higher risk of receiv­
ing the death sentence than a similarly situated black 
victim case.

49/(Id. 1740).—
Petitioner's final expert was Dr. Richard Berk, 

a highly qualified social scientist (see RB 1) and a frequent 
consultant on criminal justice matters to the United States 
Department of Justice (id. 1753). Berk in fact had served on 
a distinguished National Academy of Sciences panel charged 
with reviewing all previous research on criminal sentencing 
issues in order to set standards for the conduct of such 
research (id. 1761-62). After receiving Baldus’ studies,

49/ 3eyond this statistical and qualitative evidence on cases 
Tike oetitioner's, petitioner introduced the deposition of Dis­
trict" Attorney Lewis Slayton (id_. 1319). In that deposition, 
Slayton acknowledged that his office has no express written 
or unwritten policies or guidelines to govern the disposition of 
homicide cases at the indictment stage (Dep., 10-12), plea
stage, (Dep. at 26) or the penalty stage (Dep., 31, 41/ 58-59). Moreover, murder cases in his office are assigned at different 
stages to one of a dozen or more assistant district attorneys 
(Dep., 15, 45-48), and there is no one person who invariably reviews all decisions on homicide dispositions (Dep., 12-14, 
20-22, 28, 34-38). Slayton confessed that his office does not 
always seek a sentencing trial in a capital case, even when 
statutory aggravating circumstances are present (Dep., 38-39). Slayton testified further that the decisionmaking process in his 
office for seeking a death sentence is "probably ... the same as 
it was in the pre-Furman period (Dep., 59-61).

-55-



preliminary report,analyzing the data, and reviewing Baldus'
Berk’s opinion on Baldus' study, especially its findings on
race, was virtually unqualified:

This has very high credibility, especially compared
to the studies that [The National ^ ^ s°ofSJt!dies n,noll reviewed. We reviewed hundreds or studies
no doubt that at this moment, this is ar and na
the most complete and thorough analysis of sentencing 
[hatTbeen done. I mean there's nothing even close.

(Id. 1766.)
Berk's conclusion is fully warranted. The data was 

reliable and carefully compiled. The regression analyses 
relied upon by petitioner were properly conducted by leading 
experts in the field. These analyses were carefully monitored 
for possible statistical problems, and they have been found 
to be both statistically appropriate and accurate in their 
assessment of the presence and magnitude of racial disparities 
in capital sentencing in Georgia. These disparities are real 
and persistent; they establish petitioner's prima facie case.

C The Law: The District Court Misapplied the Law 
In Rejecting Petitioner's Prima Facie Case
We have already pointed out many instances in which 

the District Court misread the record, overlooked testimony, 
or made findings contrary to the evidence presented by 
both parties —  petitioner and respondent alike. Yet the 
principal errors committed by the District Court on this 
record stem from its apparent misunderstanding of statistical 
proof, and its misapplication of controlling legal authority. 
In effect, the District Court created for itself a roster of 
new legal standards and principles to judge the quality of 
petitioner's data, the admissibility of his exhibits, the 
appropriateness of his models, and even the usefulness of

-56-



multiple regression as a mode of proof. In fashioning this new 
jurisprudence, the District Court departed from well-established 
Supreme Court and Circuit precedent, requiring this Court to 
vacate and remand for further proceedings in compliance with
appropriate legal standards.

(i) Petitioner's Data Clearly Exceed Minimum 
Evidentiary Standards For Use In Regres- 
sion Analysis________ ______ ____________
In assessing petitioner's statistical case, the 

District Court announced that ■ Multiple regression requires 
complete correct data to be utilized" (R. 1169); it clearly pro­
ceeded to hold petitioner to such a standard. Although acknowl­
edging that "the researchers attempted to be careful in [their] 
data-gathering," the Court complained that "the final data base 
was far from perfect," (R. 1159), noting that "[a]n important 
limitation" of the data was "that the questionnaire could not 
capture every nuance of every issue" (id.). The Court faulted 
the data sources (erroneously, see id. 1117) because they "con­
tain] no information about what a prosecutor felt about the 
credibility of any witness" (R. 1160). Indeed, the Court appeared 
to hold that virtually any retrospective study would necessarily
be insufficient:

To the extent that the records of the Parole Board 
accurately reflect the circumstances of each case, 
they present a retrospective view of the facts and 
circumstances. That is to say, theyreflect a view 
of the case after all investigation is completed, 
after all pretrial preparation is made, after a n  
evidentiary rulings have been handed down, after 
each witness has testified, and after the defendandefense or mitigation is aired--- Further, the file
does not reflect what was known to the jury but only 
what was known to the police.... Consequently, court feels that any model produced from the data base 
available is substantially flawed because it does not 
measure decisions based on the knowledge available to 
the decision-maker.

(R. 1172.)
-57-



The Court's insistence on such a standard of proof 
was plain error. Statistical evidence of systematic racial 
discrimination in violation of the Fourteenth Amendment simply 
is not held to this pristine standard. To the contrary, it is 
the respondent who must shoulder a "heavy burden" to come forward 
with affirmative evidence that any "errors or omissions bias the 
data [and] ... that this bias alters the result of the statistical 
analysis in a systematic way," Vuyanich v. Republic National Bank, 
supra, 505 F. Supp. at 255-56, vacated on other grounds, 732 F.2d 
1195 (5th Cir. 1984); accord, Trout v . Lehman, 702 F.2d 1094,
1101-02 (D.C. Cir. 1983); Detroit Police Officers Assjn v. Youn*, 
608 F. 2d 671 , 687 (6 th Cir. 1 979), cert,, denied, 452 U.S. 938 
(1981); cfj. International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 340 n.20 (1977).

This legal standard is well justified as a matter
of scientific principle. Dr. Richard Bert indicated that missing
data or errors "of the order of 10, 15 percent, almost nev.er make .

44/
a difference" in the outcome (Fed. Hab. Tr. 1766). Both 
Baldus and Woodworth stressed that "errors which are randomly 
distributed with respect to the race of the defendant, or the rac* 
of the victim, are not going to create a race of the victim dis­
parity. in other words, they're not going to bias the effects"
(id. 1727-28; see id. 1720; Fed. Oct. Tr. 82).

Here respondent offered no plausible explanation of 
how the use of its own official State files might have resulted 
in racial bias. Nor was there evidence that the data base was 
grossly flawed. The Court's chief criticism of the data stemmed 
from its misunderstanding of the logic and appropriateness of the 
"U" or "unknown" coding convention, which we have earlier shown to

-58-



be scientifically appropriate. The alleged "mismatches" have been 
largely accounted for as well. As for the small percentage of 
missing data with respect to the race of the victim, and on whe­
ther plea bargaining had been sought and penalty trials held,
Baldus himself called these to the Court's attention, and pro­
ceeded to conduct a series of analyses —  including every test
suggested by the Court or the State, and others besides —  to 
discern whether "missing data" might affect his principal con­
clusions. He found the changes in outcome to be uniformly
insignificant.

in short, since the District Court applied an incorrect 
legal standard in assessing petitioner's data base, its conclusion 
that the data "is essentially untrustworthy" must be rejected by 
this Court.

(ii) Multiple Regression Analysis Is An 
Appropriate Means Of Proof------
The single gravest error into which the District 

court fell was its conclusion -  only partially acknowledged 
during many points in its opinion, although plainly stated at 
others -- that multiple regression analysis is an inappropri­
ate and unacceptable method of proof. At the outset of its ... 
opinion, the Court frankly expressed its preference for a 
simpler form of data analysis, the cross-tabular method:

To determine whether or not race [is] .... bei"9 °on7 sid«eS” ln the Georgia capital sentencing system] , it 
is necessary to compare very similar cases. Thi iuaaests the use of a statistical technique known as cross5tabulation. Because of the data available, it was 
impossible to get any statistically significant results 
method. R. 705 . Accordingly, the study principally 
relies on multivariate analysis.

(R. 1153.) Petitioner indeed presented the District Court with 
several cross-tabular analyses examining the impact of the racial

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variables (see DB 66, 68, 71, 72, 76) (nearly all of which
50/were statistically significant.)

Yet petitioner's claim required more sophisticated 
proof, which petitioner also placed before the Court. Despite 
a careful attempt to illustrate the principles of regression 
analysis (see Fed. Hab. Tr. 689-700, 709-18, 917-18), the Court 
expressed skepticism throughout the hearing about whether regres­
sions could actually work. (E.g. "I have a threshhold concern 
about whether regression analysis is applicable to this aspiry 
[sic]") (Fed. Oct. Tr. at 61); "[F]undamentally, what I am trying 
to say, I don't understand regression analysis well enough to be 
convinced that it demonstrates that equals are treated unequally 
as a reference to any factor" Id. at 63; see also id. 67, 101).

That basic skepticism, never dispelled, explicitly 
colored the District Court's entire evaluation of petitioner s 
proof. In a subsection entitled, "What a Multivariate Regression 
Can Prove," (R. 1190), the Court purports to contrast what 
"[Baldus] means when he says that he has 'controlled' for other 
independent variables" with "[w]hat these terms usually mean"
(R. 1196), proceeding to describe the "usual" meaning of controls 
solely in terms of the cross tabular method —  "that a researcher 
has compared cases where the controlled-for variables are present 
in each case and where the cases are divided into groups where the 
variable of interest is present where the variable of interest is 
not present" (R. 1196—97). The Court continues:

50/ The principal limitation of the cross-tabular approach, as 
Bildus explained, is that it must subdivide its sample as each new 
variable is added to the analysis, quickly depleting all but 
extraordinarily large samples. (Fed. Hab. Tr. 705).
51/ All of the expert testimony at the hearings confirmed,
Z f course, that multiple regressions do control for other

(Continued)
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With these difficulties, it would appear that multi- 
variate analysis is ill suited to provide the court 
with circumstantial evidence of the presence of dis­
crimination, and it is incapable of providing the 
court with measures of qualitative difference 
treatment which are necessary to a finding that a prima 
facie case has been established with statistical evi­
dence. Finally, the method is incapable of producing 
evidence on whether or not racial factors played a 

dn 4-Ksa imDOsition of the death penalty in any l“ tioSl« cast? To ?he extent that McCleskey contends 
that he was denied either due process or equal pro 
lection “ the law, his methods fail to contribute
anything of value to his cause.

(Continued)
background variables (see e ^ ,  Fed. Hab. Tr. 691-96; Fed. 
Ont Tr 6-60; 77-79). Multiple regression analysis is .. 
a substitute for controlled experimentation," yuyani_ch v. 
RpDublic National Bank, supra, 505 F. Supp. at 269; accor , 
Eastland vt TVA, sugfa, TotT.Zd at 621; Fisher, su£ra, 80 
COLUM. L. REV. at 708."
The District Court raised two other concerns aboutTne uisrtiu t-hat it "requires continuousregression analysis: first, that it requite
dependent and independent variables (R. 1194), a*d 
secondly, that "the size of.a regression coefficient (r '
says nothing about the specific degree of J 1!?* * 2 res-* 1197), and thus "one cannot use the size of the regre 
sion coefficient as an indication of the relative strength of one variable to another" (R. 1 1 9 7 -9 8 ) . Botn 
concerns are misplaced. Dr. Woodworth, an expert in d?!"!omous outcome analysis, testified unequivocally 
that "there is no problem in controlling for a ^ c h ° t o m o u S  independent variable" in regression analysis (Fed. Oct.
Tr. 30). See, e.g., Fisher, "Multiple Regression in Legal
Proceedings," 80 COLUM. L. REV. 702, _
^fate's experts did not dispute this point) the secondPissue, the experts cited by the Court on 'the difficulties of interpreting regression coefficients say 
only that one must be careful in comparing coefficients fo/continuous variables (e.g. age, number of convictions), 
with coefficients for dichotomous variables (presence or 
absence of a factor). No such problems attendo^dlus isons solely among dichotomous variables, and Baldus 
carefully observed the distinction m  his analyses 
(id 1782-84) Berk fully endorsed the principle_that _ 
Baldus' coefficients were meaningful. This testimony is 
consistent with the scientific literature. See, e^., J. NE?ER I S. WASSERMAN, APPLIED LINEAR STATISTICAL MODELS, 
at 229 (1974); Taylor, "Analyzing Qualitative Data, in 
P. ROSSI, J. WRIGHT & A. ANDERSON, eds., HANDBOOK OF 
SURVEY RESEARCH, at 576.

722 (1980) (The As for

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(R. 1 1 9 0 - 1 2 0 0 )(underscoring omitted).
In staking out this extraordinary legal position, 

the District Court has set itself squarely in opposition to 
established legal authority in this Circuit. The former 
Fifth Circuit first adverted to the use of regression analysis 
in 1976, calling it "a sophisticated and difficult method of 
proof in an employment discrimination case," Wade v. Mississippi 
Cooperative Extension Service, 528 F.2d 508, 517 (5th Cir.
1976). Five years later, having gained greater familiarity 
with the method, the Court observed that "[multiple regres­
sion analysis is a relatively sophisticated means of deter­
mining the effects that any number of different factors have 
on a particular factor," Wilkins, v. University of Houston,
654 F .2d 388, 402-03 (5th Cir. 1981), vacated and remanded_on

, n o  q rt 34 (1 982). The Court heldother grounds __ U.S. __, 104 b.tr.
in Wilkins that "if properly used, multiple regression 
analysis is a relatively reliable and accurate method of - - -
gauging classwide discrimination," id. at 402-03 n.18, indeed 
noting that "it may be the best, if not the only, means of 
proving classwide discrimination ... in a case where a number 
of factors operated simultaneously to influence" the outcome
of interest. _Id_. at 403.

With proper attention to its possible misuse,
this Court has thus also embraced multiple regression

52/ One of the major reasons why the Court misunderstood 
some of these basic statistical principles may have been 
its refusal to admit Baldus' extensive report into 
evidence (see Fed. Hab. Tr. 1008-31; DB 113), even though a copy had been provided to the State s expert 
during discovery, and though Baldus and Woodworth both 
stood ready to submit full cross-examination on its 
contents. Petitioner contends that this exclusion 
was clear error, on each of the grounds he presented 
the District Court (id. 1008-31).

-62-



analysis as an appropriate tool for the proof of discrimination 
claims. See, e.g., Eastland v. TVA, supra, 704 F.2d at 621-22; see 
also, Valentino v. United States Postal Service, 674 F.2d 56, 70 
(D.C. Cir. 1982); see generally, Finklestein, "The Judicial 
Reception of Mutiple Regression Studies in Race and Sex Discrim­
ination Cases," 80 COLUM. L. REV. 737 (1980).

Whether multiple regression is legally appropriate as 
a means of proof does not, in sum, depend on whether a district 
court is able to understand of the underlying regressions. When 
real, persistent racial differences are presented in a carefully 
conducted statistical analysis, a federal court must take them 
seriously —  not dismiss them summarily with the wish that a less 
mathematically sophisticated method of proof were available.

(iii) The Models Employed By Petitioner Were 
Statistically Appropriate______________
The District Court's third major error in its eva­

luation of petitioner's case was its set of unfounded assumptions 
about the "models," or sets of variables, that Baldus should have
used to conduct his analyses.

On the one hand, the Court apparently believed that 
no model is sufficient unless it can control for all possible 
racially neutral variables, since "any model which does not 
include the 230 variables may very well possibly not present 
a whole picture" (R. 1171). The Court did not merely treat 
models with fewer variables as less reliable it discounted 
them altogether. Thus Baldus' "worst case" reanalyses, 
conducted to check the effect of "missing data , were dismissed, 
since Baldus "used a 39—variable model [and] ... did not test

-63-



any of his larger regressions" (R. 1167). Similarly, Woodworth’s 
extensive series of diagnostic tests to see if possible statistical 
biases had crept in was branded virtually worthless, because 
" [n]one of Woodworth's models in which he performed his diagnostics 
are large order regression analyses" (R. 1179). The "triangula­
tion" approach is unsound, the Court stated, because "Baldus is 
taking his bearings off of many models, none of which are adequately
inclusive" (R. 1182). Baldus' 39-variable model "is by no means

53/acceptable" (R. 1205).
What evidence or legal principle warrants the District 

Court's position? None we can locate. Baldus expressed the 
expert opinion that a 39-variable model best "captured the 
essence of this system in terms of the main determinants ... 
those [39] variables constituted the most plausible rival hypo­
thesis ... in the sense that they were statistically important 
and also they were important in terms of our general understanding 
of how systems of this type operate" (Fed. Hab. Tr. 808, 815). 
Expanding on this point, Baldus explained that no model is per-

53/ While insisting that only petitioner's large-scale models 
^ire appropriate, the District Court nevertheless stressed the 
ostensibly severe problems of multicollinearity associated wit 
larqe models (see R. 1176-80). The Court s treatment of this
issue is markedly confusion and error. _ The ^ ^ p ^ n d a r d 1" collinearity —  which "reduces the precision of the standard 
[error of] estimates with respect to the variables that are in 
terrelated to one another" (Fed. Hab. Tr. 1166-67) -  with the 
possibility that "racial variables are serving as proxies fo 
other permissible factors" (R. 1176). only the statistical significance of a 
the coefficients reported. See, e,g.,
L. REV. at 713. (Fed. Hab. Tr. 1281-82 
Indeed, since the impact of

c  -  — ---------------Multicollinearity affects 
result; it does not bias 
Fisher, supra, 80 COLUM. 
accord, 1782.)

multicollinearity is to reduce
the level of statistical significance, racial variables whic 
show a statistically significant result m  large models are 
all the more impressive (id. 1186).

The issue of whether race is serving as a proxy for other 
variables is precisely what a regression analysis, ^controlling 
for such other variables, is designed to resolve. ,Pe“ tioner 
control for 230 variables, and racial effects remained stro g.

-64-



feet. Very large models present certain "technical concerns" as 
a statistical matter; smaller models raise the concern that an 
important variable has been omitted. It was for that reason, 
Baldus testified, that he employed a variety of models (id. 
830-21 ) .

Dr. Woodworth testified that the 39-variable or 
"mid-range" model, which he used in all of his diagnostic 
tests, "does an excellent job of predicting the [sentencing] 
outcome ... predicting about 93 percent of the outcomes 
correctly," (id. 1290). Even the State's expert admitted that 
"[i]t is theoretically possible that a twenty-variable model 
with no interdependency could be more reliable than a 230-vari­
able model if a lot of the variables were interdependent, or 
interrelated" (Feb. Hab. Tr. 1673). Franklin Fisher makes a 
similar point in his influential article on the legal use of 
regressions:

Without some theory about which variables are likely to 
matter, throwing a great number of variables into the 
hopper is likely to lead to spurious results ... [W]hen 
having a study done by an expert, one should not be too 
insistent about covering every possibility at once.
Rather one should make sure that the expert proceeds 
by estimating a reasonable model including the major 
variables and then goes on to test other possibilities.
If one insists that all possible variables are likely to 
be of equal importance, one is likely to end up with a 
rather doubtful result."

Fisher, supra, 80 COLUM. L. REV. at 715.54/
The District Court's second erroneous assumption

about statistical models is, ironically, tied to the first.

54/ Petitioner of course stood ready throughout the August 
T9 8 3 hearing, and again at the October hearing, to respond to all challenges to its claims. If the Court had then indicated 
any serious reservations about the reliability of petitioner's 
diagnostic tests because of the 39-variable model, petitioner's 
experts had the means available and would have been quite will­
ing to conduct important analyses with larger models.

-65-



Sven the 230-variable models, the Court held, were "insuffi­
ciently predictive to support an inference of discrimination"
(R. 1173; id. 1174; 1181), since they had a low "r and dld 
not predict all of the outcomes. Indeed, the Court even faulted 
its own "Lawyer Model" on this account: "I tried to suggest [what 
factor are important] in the model I designed and obviously I 
didn't do well because I didn't even predict half of the death
penalties" (Fed. Oct. Tr. 65).

The flaw in the Court's reasoning, as Woodworth
explained, is its assumption that there are no arbitrary or
random features to the system. If arbitrary or unique factors
play a part, no number of variables could account for them.
Woodworth testified that it was "possible for a set of variables
to have an r-square of .39 or .46 and yet still account for all
the significant variation apart from the randomness." Moreover,
Woodworth, an expert on dichotomous outcome analysis, added that
dichotomous data typically produced artificially low r2 numbers
—  that, in fairness, the appropriate "biserial r " for such

2 ,:j 1289) 55/models is roughly double the unadjusted r — *
Employing such recalculations, most of petitioner's models seem

to have r2's of between .70 and .90.
To summarize, the District Court’s unwarranted assump­

tions about regression models led it into an erroneous legal and 
factual judgment of petitioner's evidence. On this third major 
ground, the judgment of the Court must be reversed.

5 5 / See, e.g., J. GUILFORD & B. FRAUCHTER, 
TICS in”PSYCHOLOGY AND EDUCATION, 6 th ed., 
supra, 80 COLUM. L. REV. at 719.

FUNDAMENTAL STATIS- 
at 311 (1969); Fisher,

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D< The State Presented No Significant Rebuttal Case

Because petitioner made out a prima facie case, the legal 
burden shifted to respondent to rebut that case in one of three 
ways: (i) "by showing that plaintiff's statistics are mislead­
ing," Eastland v. TVA, supra, 704 F.2d at 618-19? (n) "by pre­
senting legitimate non-discriminatory reasons for the disparity," 
id.; or (iii) by proving that racial discrimination is justified 
in this context by a compelling state interest. See generally, 
Johnson v. Uncle Ben's, Inc^, 628 F.2d 419, 423-24 (5th Cir.
1980), cert, denied, ___U.S. ____, 103 S.Ct. 293 (1982).

What did the State do to meet these burdens? It offered 
no alternative model which might have reduced or eliminated the 
racial disparities (Fed. Hab. Tr. 1609). It did not even propose 
—  much less test the effect of —  any additional explanatory 
variables (id.), admitting that it did not know whether the addi­
tion of other variables "would have any effect or not" (id. 1567). 
The State declined petitioner's invitation to propose a recombina­
tion of Baldus' variables that might yield a different result 
(id. 1475-76). It performed no multivariate analyses of its own 
to test whether white and black victim cases are being treated 
differently (id. 1615). Nor did it point to any analysis by 
Baldus in which the racial effects disappeared or ran counter to 
petitioner's claims.

The State, in short, presented no affirmative statis-
. . 56/tical case on rebuttal at all.

56/ In one regard, at least, the failure is unsurprising. Neither of the State's experts had background or training 
a*y area rented to the criminal law (Fed. Hab. Tr. 1 356-57; 
Resp. Ex. 75). In its opinion, the District Court clearly
misread the record by reciting that Dr. Katz "*** 
as an expert in analyzing data, in research design, in sta 
tistics,^statistical analysis and quantitative methods.

-67-



Instead, the State attempted unsuccessfully to attack 
the integrity of petitioner's data sources. But a rebuttal case 
challenging a party's data base as misleading or inaccurate can­
not succeed without strong evidence that the data are seriously 

deficient and unreliable:
[A] heavy burden must be met before a party can justify the 
rejection in toto of any statistical analyses on the ground 
of errors or omissions in the data —  the chal s^ias * bears the burden of showing that errors or omissions bias 
the data [and] ... that this bias alters the result of the 
statistical analyses in a systematic way.

yuvanich v. Republic National Bank supra, 505 F. Supp. at, 255-56;
accord, Trout v. Lehman, 702 F.2d 1094, 1101 (D.C. Cir. 1983);
Detroit Police Officer's Ass'n v. Young, 608 F.2d 671, 687 (6th
Cir. 1979); cert, denied, 452 U.S. 938 (1981). The State's
challenges were either trivial in their overall significance or
based on misunderstandings of petitioner’s coding conventions.
No serious proof was offered by the State to "show[] that errors 
or omissions bias[ed] the data" or "that this bias altered] the 
result of the statistical analyses in a systematic way."

The State's expert did present one hypothesis that 
the apparent racial disparities could be explained by the gene­
rally more aggravated nature of white victim cases. However, 
after assembling a wealth of material to prove that white victim 
cases are more aggravated on the average, Dr. Katz never addressed 
the critical question —  whether white and black victim cases

(Continued)
-  ' I * * *  / n 1 1 1 Q 1  W h i l p  the State proposed Dr. Katz as
qualified iS’all of those areas (Fed/Ha£.~. 1 346), voir 
dire exposed that he had never had training or experience 
qathering empirical data on human behavior, had never take 
fcourse'in multivariate analysis and had virtual y no 
training in the design of empirical research (id. 370 74). 
The Court declined to qualify him in these areas (id. 
1375-77; 1383).

-68-



at the same level of aggravation are being treated similarly (id. 
1664). Dr. Katz, in the other words, never tested his own hypo­
thesis (id. 1760-61), although on cross-examination he admitted
"that would have been desirable" (id* 1613).

This hypothesis is thus precisely the sort of "[unqual­
ified, speculative, and theoretical objection[] to the proffered 
statistics [that is] properly given little weight by the trial 
court,” Trout v. Lehman, supra, 702 P. 2d at 1102; see e ^ ,  

Castaneda v. Partida, 430 US. 1182, 499 n.19 (1977). The Dis­
trict Court here declined fully to credit the State's theory 
(see R. 1178-79); 1200-01), but it nevertheless called it "plau­
sible" (R. 1200), and held that it constituted "direct rebuttal 
evidence [which] ... stands to contradict any prima facie case"

(R. 1201).
Even standing alone, that assessment would violate 

Trout’s cautionary injunction. However, petitioner's experts 
directly addressed this hypothesis (id. 1297; 1729-32), tested 
it themselves (id. 1291-96; see GW 5, 6, 7, 3; see also DB 92), 
and conclusively proved that it does not explain the racial dis­
parities (id. 1732). Untested by its proponents, refuted by 
petitioner, the hypothesis is clearly entitled to no weight as 

' rebuttal.
The State's expert advanced one additional hypothesis, 

that because the statistical significance of Baldus' racial coef­
ficients dropped when the first variables were added to his 
model, the addition of still further, unspecified variables 
beyond 230 identified by Baldus "might" eventually eliminate all 
the statistical significance of the coefficients (id. 1564-69). 
Dr. Katz once again acknowledged he had not performed any tests
to confirm this speculation (id. 1566).

-69-



Petitioner's statistical experts testified that Dr.
Katz's "extrapolation is not a reliable statistical tool" (id. 
1729), and that the demonstration "in no way invalidates the 
original results" (id. 1758). Moreover, Dr. Woodworth illus­
trated the point by presenting an equally plausible demonstra­
tion under which statistical significance was maintained (id.

1728-29; see GW 6).
In sum, the State’s rebuttal arguments were themselves 

nothing but uninformed speculations, which petitioner firmly 
countered. Because petitioner's prima facie case was not seri­
ously challenged, much less refuted, he should have prevailed 
on his constitutional claims. The District Court erred seriously 

in denying relief.

V. THE DISTRICT COURT IMPROPERLY REJECTED PETITIONER S 
PROSECUTION-PRONENESS CLAIM ____________________
The District Court rejected as a matter of law peti­

tioner's claim that the exclusion of death-scrupled jurors vio­
lated his right to be tried by an impartial and unbiased jury 
drawn from a representative cross-section of his community 
(R. 1244). That holding, we respectfully submit, was error. This 
Court sitting en banc should adopt the findings and conclusions 
set forth in Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), 
hearing en banc ordered, No. 83-2113 EA (8th Cir., November 8, 
1983) and Keeten v. Garrison, 578 F. Supp. 1164 (W.D.N.C. 1984), 
appeal pending, No. 84-61 39 L (4th Cir.).

CONCLUSION
That portion of the District Court's judgment granting 

habeas corpus relief to petitioner on his due process claims 
under Giglio v. United States should be affirmed. Those por-

-70-



tions of the District Court's judgment denying relief on all 
other claims should be reversed. Alternatively, the case should 
be remanded to the District Court for a further evidentiary hear­
ing on petitioner's claims respecting the ineffective assistance 
of counsel at trial, the arbitrary and racially discriminatory 
imposition of his capital sentence, and the prosecution-proneness 
of his trial jury.

Respectfully submitted,

ROBERT H. STROUP
1515 Healey Building 
Atlanta, Georgia 30303

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 99 Hudson Street 

New York, New York 10013

Dated: May 8, 1984

TIMOTHY K. FORD
600 Pioneer Square Seattle, Washington 94305

ANTHONY G. AMSTERDAM 
New York University 

Law School40 Washington Square South 
New York, New York 10012

ATTORNEYS FOR PETITIONER-APPELLEE 
& CROSS-APPELLANT

-71 -



CERTIFICATE OF SERVICE

I hereby certify that I am one of the attorneys for 
petitioner-appellee Warren McCleskey, and that I served the 
annexed En Banc Brief for Petitioner McCleskey as Appellee and 
Cross-Appellant on respondent by placing copies in the United 
States mail, first class mail, postage prepaid, addressed as

follows:
Mary Beth Westmoreland, Esq.
Assistant Attorney General 
132 State Judicial Building 
Atlanta, Georgia 30334

All parties required to be served have been served. Done this 

8th day of May, 1984.

, 'n  (irv
JOHN CHARLES BOGER

\