McCleskey v. Zant En Banc Brief for Petitioner as Appellee and Cross-Appellant (Habeas Corpus)
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May 8, 1984

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Brief Collection, LDF Court Filings. McCleskey v. Zant En Banc Brief for Petitioner as Appellee and Cross-Appellant (Habeas Corpus), 1984. d5f01e66-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b8f56c13-8c03-4ae1-8318-e01fcc146ad6/mccleskey-v-zant-en-banc-brief-for-petitioner-as-appellee-and-cross-appellant-habeas-corpus. Accessed May 20, 2025.
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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 -59- 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) -60- 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 -61- (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, -66- 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 \