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General - Spencer v. Zant Pleadings
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December 27, 1983 - April 27, 1984
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Case Files, McCleskey Background Materials. General - Spencer v. Zant Pleadings, 1983. 88d1dbcc-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e46b4de9-688d-4018-bc9b-a7678213f093/general-spencer-v-zant-pleadings. Accessed December 04, 2025.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
82-8408
JAMES LEE SPENCER,
Petitioner-Appellant,
- against -
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent-Appellee.
On Appeal From The United States District Court
For The Southern District of Georgia
Augusta Division
THIRD SUPPLEMENTAL BRIEF FOR PETITIONER-
APPELLANT ON REHEARING EN BANC
BARRINGTON D. PARKER, JR.
CLAUDIA J. FLYNN
MARTIN S. HIMELES, JR.
415 Madison Avenue
New York, New York 10017
EDWARD P. TOLLEY
304 East Washington Street
Athens, Georgia 30601
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
TIMOTHY K. FORD
99 Hudson Street
New York, New York 10013
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
TTORNEYS FCR PETITIONER-APPELLANT
TABLE OF CONTENTS
Page
Table Of Authorities © © 0 © 9 0 © © © 9 8 5 00 © 9 0° 0 0 0 00 Se 0 00 i
Introduction GO CP BP EG 008668 0.5 0856850060600 6930064804609489 1
I. The Data And Analyses That The McCleskey
Opinion Held Should Have Been Offered Can
Be Presented In A Hearing On Remand In
» ow This Case 0 60 OB BGO MY EI OES S00 000 998.000 0 5686 2
A. Petitioner Has Offered To Go Beyond
The Statistical Proof Considered In
McCleskey To Present Historical °
Evidence Generally, And In Burke
County As Well © © 2 5 © 5 © 0 © 0 © 0 © 0 9° 0 0 0 2 00 0 0 00 3
B. The Processes Of Discovery, Which
Were Limited in McCleskey, Are Avail-
able On Remand In This Case To Resolve
Any Questions About The Accuracy Or
Reliability Of The Data Compiled By
Professor BalduS ..seeeescscssscscscsccscs 6
Cs Petitioner Has Offered To Present
Statistical Evidence Of Discrimination
From Other Sources, Using Other Methods,
Than Those Criticized In McCleskey ..... 8
D. Petitioner's Proffer Of The Baldus
study Includes Evidence Which Could
Answer Many Of The Questions Raised
In The McCleskey Opinion Itself ........ 11
II. Petitioner Spencer's Case Differs From
McCleskey's In Several Respects Found
Critical In McClesSKkeY eescecsossccscacacsccscsns 14
CONCLUSION PPE ESN NR i a We er Sl Sa Te GF Be BE BE UE BC NR We Wh 0 Gh Be GE BR gr SAH £0 did 17
Table of Authorities
Cases:
Berry v. Cooper, 377 F.28 322 (5th Cir. 1978) ....
Broadway Vv. Culpepper, 439 F.2d 1253 (5th
Cir. 1971) © ® 9 0 0 00 0 0 0 0 0 000 0 0 ® © 0 062 20 0° 5 0 0 0 0 0 0 0
Columbus Board of Education v. Penick, 443 U.S. 449
{1379) corns sserrsssnencesssnnsnsrnnsnnrneenvien
Foster v. Sparks, 506 #.2d4 803 (5th Cir. 1975) ...
Gibson v. Zant, 705 P.24 1543 (11th Cir. 1983) 4.»
Johnson v. Uncle Ben's, Inc., 628 F.2d 419
{5th Cir. 1980), vacated 451 U.S. 902,
modified in part, 657 P.2d 750 (5th Cir.
1981), cert, denied, 103 :5.Ct., 293 {1982) ws.
Jones v. Georgia, 389 U.S. 24 (1967) seers evrecss
Lodge v. Buxton, 639 P.2d 1358 (5th Cir. Unit B
1981), affirmed sub nom. Rogers v. Lodge,
458 JeSe 613 (1982) ® © © © © 5 © OO © 0 ° 0 5 Oo O° OO OO O° 0° O°
Mann v. Cox, 487 P. Supp. 147 (S.D. Ga, 1979) ....
McCleskey Vv. Zant, NO, 84-8176 cvveevevsnssecennse
McCorquodale v. Balkcom, 705 F.2d 1553 (llth Cir.
1982), adhered to, 721 FP.24 1493 (llth Cir,
1983) ® © © © » © © © ® © 9 & 5 8 0 0 ® ® © © © © © 5 5 ® ® 8 Oo ® ® © ©» © & © 0° 0 oO
Turner Vv. Fouche, 396: 17.8. 346 (1970) ces eansnnnes
Washington v. Davis, 426 U.S. 229 (1976) ceecevees
Whitus v. Georgia, 385 U.8. B45: (1967) eneesesenss
Authority:
Advisory Committee Note to the Rules Governing
Section 2254 Cases in the United States
District Court ® © © © 9 © & 6 5 9 9 6 9 ® 9 © 8 © © © 5 5 9 °° °° 9 5 0 0»
5; 186
5
passim
Introduction
The Court has ordered the decision in this case to be with-
held pending submission and consideration of McCleskey v. Zant,
1
No. 84-8176, a case which raises a similar issue concerning
racial discrimination in Georgia's capital sentencing system. As
this Court is aware, in McCleskey another district court granted
an evidentiary hearing on the racial discrimination issue, but
ultimately resolved it against that petitioner. The evidence
presented in McCleskey included some of the same evidence peti-
tioner Spencer proffered below in support of his discrimination
claim: the research findings of Professor David Baldus and his
colleagues, in the most extensive study ever conducted of the
administration of the death penalty in Georgia.
Yet the district court in McCleskey held that the petitioner
had failed to prove his case, because of supposed deficiencies
both in the data utilized in the Baldus study, and the analyses
conducted on that data. We believe the McCleskey opinion is
gravely in error, fundamentally misunderstanding the nature of
statistical proof and misreading the complex and voluminous
body of evidence before it. We will not attempt here to argue
McCleskey's case, however; the misconceptions and oversights
of the McCleskey opinion will be fully detailed in the Cross-
Appellant's Brief in that case.
/ Spencer v. Zant, No. 82-8408 (llth Cir., March 28, 1984)
o
3
( rder withholding decision).
If McCleskey is reversed by this Court, that opinion will
clearly control this case, and petitioner will be entitled to a
remand to attempt to establish that the same impermissible racial
factors in McCleskey influenced the sentencing decision in his
case as well. Yet the converse does not necessarily follow.
Even if McCleskey is affirmed, we submit that petitioner Spencer's
case still should be remanded for a hearing on the racial dis-
crimination claim. For the district court's McCleskey opinion
turns wholly on its view of the facts: data and analyses that the
court believed were significant, but which it held had not been
adequately presented; and aspects of McCleskey's own case that,
in the district court's view, diminished the significance of
the racial disparities shown there. Even if the district court's
factual findings and conclusions were correct, and McCleskey
somehow has failed to prove his case, it does not follow that
Spencer should be denied the opportunity to prove his. Spencer's
case differs from McCleskey's in several of the very points the
McCleskey opinion identifies as significant; and Spencer's
proffer encompasses evidence the McCleskey court did not consider.
I. THE DATA AND ANALYSES THAT THE McCLESKEY OPINION HELD
SHOULD HAVE BEEN OFFERED CAN BE PRESENTED IN A HEARING
ON REMAND IN THIS CASE.
The proffer on discrimination made in this case included
the Baldus study examined in McCleskey. It went beyond that
study in several important respects, however. See Spencer Vv.
Zant, No. 82-8408, First Supplemental Brief for Petitioner-
Appellant on Rehearing En Banc, at 14-19. As the panel opinion
noted, Spencer v. Zant, 715 F.2d 1562, 1581-82 ‘(11th Cir. 13883),
because Professor Baldus' research was incomplete at the time of
the hearing below, it was proffered in only the most summary form.
similarly, because the district court below rejected all evidence
of discrimination, petitioner had no opportunity to fully set
forth his evidence, or to meet any objections raised to it. But
it is clear that a hearing on remand in his case could encompass
much more than the McCleskey opinion considered. Petitioner's
additional data and analyses could address many of the questions
the district court there held to have been unanswered.
Petitioner does not ask this Court to accept such an assertion
on faith. Though they do not fully spell it out, the records of
the cases before this Court establish that such evidence exists,
and can be presented in this case if the McCleskey opinion were
to be affirmed by this Court. We will briefly outline here, with
reference to those records, what that additional evidence would be.
A. Petitioner Had Offered To Go Beyond The Statistical Proof
Considered in McCleskey To Present Historical Evidence
Generally, and In Burke County As Well
The crux of the legal analysis in McCleskey was that peti-
tioner's case was based on "statistics alone." McCleskey Vv. Zant,
No. CB1-2434A, slip op. at 11 (N.D. Ga,, February 1, 1984) (here-
inafter "McCleskey Order"). The district court held that, given
a purely statistical case, the petitioner was required to show a
"disparate impact ... so strong that the only permissible inference
is one of intentional discrimination." Id. The proof in McCleskey's
case was so limited, however, because the district court itself
had restricted it prior to trial -- holding that general evidence
of racial discrimination in the Georgia criminal justice system,
and in Fulton County, was inadmissible, and outside the scope of
discovery, because it was "irrelevant." See McCleskey v. Zant,
supra, Order of June 2, 1983. As a result, at the hearing in
McCleskey no evidence was presented, as a supplement to the sta-
tistical showing, by way of "historical background,” Washington
v. Davis, 426 U.S. 229, 265-66 (1976), providing nonstatistical
evidence that the apparent racial discrimination was real, fore-
seeable, and known. Yet such evidence is plainly admissible to
support a statistical case of discrimination, and it might make
a critical difference in a court's ultimate assessment of the
sufficiency of such a case. 1bid.; see e.g.., Columbus Board of
Education v. Penick, 443 U.S. 449, 464-65 (1979).
Nonstatistical evidence was clearly included in the proffer
in petitioner Spencer's case. Petitioner offered to prove
below "specific facts evidencing intentional discrimination
against [him] on the basis of race.” He expressly noted that he
had contemporaneously asserted a claim of jury discrimination in
Burke County, and referred to "courtroom practices at the
time of the trial involving informal segregation." Spencer
v. Zant, Federal Hearing, January 26, 1981, at 39 (hereinafter
"Spencer Hrg."); Petitioner's Memorandum of Law in Support of His
Motion to Alter or Amend the Judgment, at 4. Indeed, the panel
found that Spencer had made "a colorable claim of discrimination
in the selection of jurors in Burke County" in 1975, and noted
the conclusion in another case that "the 1976 Burke County
grand and traverse jury lists were unconstitutionally composed
with respect to blacks and women." Spencer v. Zant, supra,
715 F.2d at 1567 and n.4. That brief finding, however, only
hints at the pervasive depth of racial prejudice in Burke County
at the time of Spencer's trial. This Court has elsewhere noted
the sad facts that, even in the early 1970s, "[t]lhe vestiges of
racism encompass[ed] the totality of life in Burke County."
Lodge v. Buxton, 639 F.2d 1358, 1381 {5th Cir. Onit 8B, 1981),
aff'd sub nom. Rogers v. Lodge, 458 U.S. 613 (1982). More
generally, racial discrimination permeated much of public life in
the State of Georgia in the past, its criminal system in partic-
2 : as ; ; ;
ular.’ Such evidence of historic discrimination is plainly
relevant to petitioner's claim and would be offered on remand in
this case. Yet the McCleskey opinion makes no mention of that
fact, and the McCleskey record contains no evidence of it.
We do not ask the Court to decide, in this case, whether
the failure of the district court in McCleskey to consider
that evidence was due to error, or rather to a failure of proof
by the petitioner there. Whichever it was, the fact remains that
the petitioner in this case included such evidence in his offer of
proof, and the court below declined to hear it. That offer must
be included in the calculus that determines petitioner's right to
a hearing in this case, whatever the outcome of McCleskey.
2/ See, e.9., Turner v. Pouche, 396 U.S. 346 (1970); Jones v.
Georgia, 389 U.S. 24 (1967); Whitus v. Georgia, 385 U.S. 545
(1967): Gibson v. Zant, 70% P.2d 1543 {llth Cir, 1933); Berry
Vv. Cooper, 577 2.24 322 (5th Cir. 1978); Foster v, Sparks, 506
F.2d 805 (5th Cir. 1975); Broadway v. Culpepper, 439 F.2d 1253
{5th Cir. 1981); Mann v. Cox, 487 P, Supp. 147 (8.D. Ga.
1979).
B. The Processes of Discovery, Which Were Limited In McCleskey,
Are Available On Remand Ih This Case To Resolve Any Ouest iths
About the Accuracy or Reliability of The Data Compiled By
Professor Baldus
One major basis of the decision in McCleskey was the district
court's uncertainty about the accuracy and completeness of the
data base analyzed by Proffesor Baldus. See McCleskey Order,
25-41, The opinion points out that the Baldus data was not
derived directly from sources that set out all of the facts of
which the prosecutors or juries in each individual case might
have been aware, id. at 26, that there were a few data entries
that appeared to be incorrect, id. at 34, and that it was impossi-
ble to determine from the official records consulted whether or
not some of the variables Baldus included in his study were
present in all of the cases, id. at 41. Although the unrebutted
testimony at the McCleskey hearing was that Baldus carefully
observed the most advanced and sophisticated social science
methods, McCleskey Tr. 1766, and that none of these random imper-
fections biased Baldus' results, the McCleskey opinion nevertheless
concluded from those ostensible deficiencies that the "petitioner
has failed to establish by a preponderance of the evidence that
[the data base] ... is essentially trustworthy." McCleskey
Order, at 41.
We believe that the district court's conclusion -- reached
in the face of uncontradicted expert testimony that Baldus' data
gathering methods were accepted and, indeed, "state of the art,"
(McCleskey Tr. 853), and without any showing that these imperfec-
tions did, or could have, biased Baldus' conclusions -- was
seriously in error. It is not a petitioner's burden, in a case
like this, to show that his evidence is perfect; rather it is the
respondent's burden to demonstrate "total unacceptability of
[the] plaintiff's statistical evidence." Johnson v. Uncle Ben's,
InC., 628 7.28. 419, 424 {5th Cir. 1980), vacated, 451 U.S8..902
(1981), modified in part, 6357 F.2d 750 (5th Cir. 1981), cert.
denied, 103 S.Ct. 293 (1982). But again, we do not here argue
McCleskey's case. Even if the district court in McCleskey was
right that the petitioner should have shown his data to be rigor-
ous and accurate beyond the best social science methodology,
such a standard of proof can be met on remand in this case, by
use of discovery devices designed to settle unresolved questions
in the litigation process.
Petitioner Spencer never obtained discovery on this issue,
since the district court rejected his discrimination claim as a
3s, matter of law.= piscovery was begun in McCleskey, and
petitioner there requested the State to set forth "all objections,
criticisms or deficiencies of the data base," McCleskey v. Zant,
supra, Petitioner's First Interrogatories, at 4, and to provide
particular data about individual cases included in the Baldus
study, id, at 5-6. The district court did not require respondent
to provide the latter information, however, except by making any
records it had available to the petitioner for inspection.
McCleskey v. Zant, supra, Order of June 22, 1983.
3/ Requests for discovery in habeas proceedings "normally
follow the granting of an evidentiary hearing ...." Advisory
Committee Note to Rule 6 of the Rules Governing Section 2254
Cases in the United States District Courts,
Although the respondent in McCleskey was required to present its
objections to petitioner's data base, ana ostensibly did so
through interrogatory answers submitted up to the date of the
hearing, those few answers that identified specific inaccuracies
in the data gathered by Professor Baldus were addressed by
petitioner's testimony at the McCleskey hearing. In those
instances where inaccuracies had been found, changes were made;
none of them affected Baldus' results. (See McCleskey Tr.
1693-1720.)
Despite this, the district court in McCleskey rested its
opinion, in part, on the possibility that additional information
should have been sought to reflect more accurately the "real"
facts of the cases studied, which were allegedly known to, or
believed by, the decisionmakers involved. If that proof is
indeed required, it can be obtained both through depositions and
through examination of whatever additional state records exist
that reflect it. Though the process of so doing would be difficult
and cumbersome -- and though there is no good reason to believe
it would make any difference in the results -- if that is what is
needed, it can be done, and should be on the remand of this
case.
Ce petitioner Has Offered to Present Statistical Evidence
Of Discrimination From Other Sources, Using Other Methods,
Than Those Criticized in McCleskey.
The McCleskey opinion limits its analysis entirely to the
statistical evidence of discrimination presented in the Baldus
study. That limitation reflects the restrictions imposed on the
evidence by the district court. It specifically rejected other
statistical studies which reached similar conclusions based on
different data sources, holding them to be "irrelevant" since the
methodologies they used were not as elaborate and controlled as
those employed by Professor Baldus. See e.g. McCleskey Tr. 1318~
20. Those excluded studies included the findings of Professors
Wiliam Bowers and Glen Pierce (McCleskey Tr. 742-45) -- which
were available to and proffered by the petitioner below, Spencer
Hrg. at 39-40 -- as well as an additional study by Samuel Gross
and Robert Mauro that refined similar data through analyses more
elaborate than those Bowers and Pierce used. McCleskey Tr.
1318-20. Though this latter study was not available at the time
of the district court proceedings below, petitioner informed the
court that this same kind of work was ongoing, and included it as
part of his proffer. Spencer Hrg., at 40; Petitioners' Consoli-
dated Memorandum in Support of Renewed Motions for an Evidentiary
Hearing (8.D. Ga., January 13, 1981), at 21.
The district court in McCleskey refused to consider this
evidence. It first noted correctly that the Bowers and Pierce
study had been held insufficient, standing alone, to establish
racial discrimination in the Georgia capital sentencing system,
McCorguodale v. Balkcom, 705 F.2d 1553, 1556 (lien Cir. 1982),
adhered to, 721 P.2d 1493 (llth Cir, 1983)+(en banc), but jumped
from that fact to the incorrect conclusion that, since these data
were insufficient alone to prove the case, they were irrelevant.
(See McCleskey Tr. 742-45.) Because the excluded studies were
admittedly less comprehensive in most respects than Baldus, the
error in that conclusion might have been harmless. But the
McCleskey opinion itself made them relevant and essential: for
these studies reached conclusions similar to Baldus', employing
methods that avoided many of the questions raided by the district
court in McCleskey.
One of those questions involved the same issue discussed
apove: the concern that Baldus' data did not directly reflect
what was known to the police and prosecuting authorities in each
case. McCleskey Order at 29, 32-44. While the testimony at the
McCleskey hearing showed the sources Professor Baldus used --
principally Georgia parole board files -- adequately provided that
information, McCleskey Tr. at 1341-44, the district court was
correct that the Baldus data was not drawn directly from the
original police files. But the two other studies offered and
rejected at the McCleskey hearing were derived from precisely
that source: FBI Uniform Crime Reporting Supplementary Homicide
Reports, on homicides known to state police. See McCleskey EX.
RM2 at 20: DB 18 at 5391,
Similarly, because the data utilized in these studies came
from official local sources, certain kinds of potential coding in-
consistencies the McCleskey court alluded to (McCleskey Order, at
33) should not be a factor influencing the analytic results. For
a different reason —-- because they considered only the relatively
few variables identified by the FBI as key factors differentiating
types of homicides -- the supposed "problem" of multicollinearity
discussed by the McCleskey court, see id., 51-53, is nonexistent
in these studies.
Although neither of the studies included the full range of
careful controls, or the vast amount of information encompassed by
the Baldus study, they provided imporant confirmation of Baldus'
findings. Id. at 144-45.
These other studies, however, remain available for full pre-
sentation on remand in this case; they were encompassed by the
general proffer below. Whatever the propriety of the decision to
reject them in McCleskey, if the opinion there is upheld because
of doubts about the Baldus studies, the alternative analyses
remain available to dispel them at a hearing in this case.
D. Petitioner's Proffer of the Baldus Study Includes Evidence
Which Could Answer Many of the Questions Raised in the
McCleskey Opinion.
Despite the extensive testimony and evidence in the McCleskey
hearing, the district court's opinion raised a number of questions
about potential analyses the court thought might be important that
had not been conducted. Because McCleskey prevailed and was
granted a new trial on another issue, there was no occasion in his
case to respond by supplemental proffers of evidence, or additional
briefing, pointing out to the court where, in the record its
concerns were addressed.
Some of those answers are actually contained in the McCleskey
record itself, in exhibits and testimony the district court over-
looked, or refused to consider. For example, the district court
suggested (contrary to the expert testimony at the McCleskey hear-
ing) that Baldus' determination to code "unknown" factors as non-
existent was incorrect, contending that "it would seem that the
more rational decision would be to treat the 'U' factors as being
WILT Hg
present. This coding decision pervades the data base." Id. at
35. Yet, in part of the record the district court refused to
consider -- Professor Baldus summary report —-- the alternative
analysis prescribed by the court was, in fact, conducted. See
McCleskey Ex. DB 113, Appendix I, Schedule 1, esp. Table X (miss-
ing coded 1). The results of this analysis showed that the court's
alternative coding formula, if followed, made no difference in
the racial disparities. See also id. at Table X (missing deleted),
fnte. a. A subsidiary analysis within this Schedule answered a
related question the McCleskey court raised, concerning the treat-
ment of the handful of cases where race was unknown. McCleskey
Order, at 40. That alternative analysis, too, showed the racial
disparities were unchanged. McCleskey Ex. DB 113, App. I,
Schedule 1, Table X, fnte. a.
While the McCleskey court insisted that the analytical models
employed by Baldus did not "meet the criterion of having been val-
idated by someone knowledgeable about the inner workings of the
decision-making process," McCleskey Order, at 61, it never men-
tioned that Professor Baldus offered to test his discrimination
hypothesis employing any statistical model that the respondent or
the court might suggest. McCleskey Tr. 1473-61; 1800-05. More-
over, although respondent declined the offer, the court itself
did propose such a model -- which Baldus then tested, and found
to confirm the significant, persistent racial disparities observed
in his other models. Affidavit of David C. Baldus, dated September
15, 1983. Yet this model -- the district court's own -- warrants
no mention at all in the decision rejecting Baldus' results.
m1,
In the same way, the McCleskey decision repeatedly suggests
that there may be factors, or "variables," other than the 500 which
Baldus included in his study, that might systematically effect
sentencing outcomes and explain the apparently discriminatory
results. McCleskey Order, 44-46. Yet neither in discovery nor
at trial did the respondent or the court specifiy a single such
factor that the Baldus study had omitted; nor does the decision
itself. Professor Baldus testified that his regressions included
every factor that he found to have any affect on sentencing outcome
(McCleskey Tr. 734, 808-09) -- and the respondent's witnesses in
McCleskey identified no important omitted factors, despite hundreds
of hours spent manipulating and analyzing Baldus' data.
There are admittedly some questions raised by the McCleskey
decision which are not directly answerable from the McCleskey
record itself -- because they were not raised until after the
hearing. But these questions now posed, can readily be addressed
by additional analyses -- just as were all the similar questions
raised by the respondent's pretrial objections in McCleskey, none
of which turned out to make any difference. See e.g., McCleskey
Tr. 1705-20. We strongly question the fairness of these kinds of
post hoc objections, complaining of a lack of evidence never
suggested during the hearing to be relevant, after the possibility
of presenting that evidence is past. But that issue will be
resolved in McCleskey's own case. Whether or not this Court
concludes that this decision was fair, or legally correct, an
affirmance cannot mean that this petitioner should be denied the
- 13 -
chance to put on what another court has found critically missing.
As the testimony in the McCleskey case repeatedly demonstrated,
Professor Baldus' data can be subjected to a variety of analyses.
We believe every reasonable analysis that the respondent or the
court suggested before or during the hearing in that case has been
conducted -- and that none contradict the basic, pervasive finding
of discrimination Professor Baldus made. But if still more analyses
are needed, they can be presented. Their absence from the McCleskey
record cannot justify a refusal to allow Spencer to present them
in this case.
II. PETITIONER SPENCER'S CASE DIFFERS FROM McCLESKEY'S
IN SEVERAL RESPECTS FOUND CRITICAL IN THE McCLESKEY
OPINION ITSELF
There is a second basic reason that a decision affirming the
district court's McCleskey opinion could not have controlling
effect in this case: in significant part, the McCleskey opinion
turns on facts peculiar to that case, facts which the district
court there held would preclude a finding that McCleskey haa
peen the subject of intentional racial discrimination. Those
facts included the nature of McCleskey's case, its treatment in
the Baldus study, and the jurisdiction in which it was tried.
In each of these respects, Spencer's case differs. To the
extent the McCleskey decision turns on those facts, it cannot
control the issue here.
The difference between the crimes for which Spencer and
McCleskey were convicted are important largely because of the
focus of the district court's McCleskey opinion on the specifics
of that case. While both McCleskey and Spencer are black, and
- 14 -
both their victims were white, although both had prior records,
and both were found to have committed their crimes to avoid
arrest, the district court's McCleskey opinion focused on other
aspects of that case which the Baldus data showed to be signifi-
cant to the death sentencing decision, which are not present here.
McCleskey's crime was found to have been committed in the
course of a felony; the homicide victim was a police officer.
McCleskey Order, at 76. That meant, the court noted, that
McCleskey's case included all "three statutory aggravating factors
which [the Baldus data showed] are most likely to produce the
death penalty." Ibid. Two of those three factors were absent in
Spencer's case; they thus cannot similarly explain his sentence.
More important, perhaps, in terms of the McCleskey opinion,
is the fact that the court there found there were errors in
coding McCleskey's individual case in the Baldus study. McCleskey
Order, at 42. Those "errors" constituted, in part, minor incon-
sistencies between McCleskey's questionnaire and that of his co-
defendant, McCleskey Tr. 1113, which were not shown to have had
any effect on the racial disparities found by Professor Baldus.
Indeed, the district court pointed to only one supposed "error" in
the Baldus analysis of McCleskey's case, which it speculated might
have affected the showing of "disparity in sentencing rates as a
function of the race of the victim" in McCleskey's case. McCleskey
Order, at 79. (That “error,” remarkably, lay in the fallureiof the
questionnaire on McCleskey to reflect the testimony of Offie
- Bw
Evans, that McCleskey had "bragged about the killing while in
jail," id. -- the selfsame testimony by Evans that the McCleskey
court held elsewhere contained significant "falsehoods" which re-
quired reversal of McCleskey's conviction. Id., 96-99.) Regard-
less of the logic or validity of that criticism, to the extent it
underlay the finding that McCleskey had not proved his discrimina-
tion claim, it distinguishes this case. For Spencer has offered
to show sentencing disparities in cases like his, similar to or
greater than what McCleskey showed, see id. at 79, Second Supple-
mental Brief of Petitioner-Appellant on Rehearing En Banc, at 10;
and no such "errors" have been shown or alleged in Baldus' coding
of Spencer's own case.
The McCleskey opinion similarly expresses doubts about the
validity and persuasiveness of Baldus' findings of discrimination,
as applied to urban areas of Georgia in general, and the Atlanta
Judicial Circuit, where McCleskey was tried, in particular.
McCleskey Order, 81, 83-88. As we have noted above, Spencer
was tried in rural Burke County, in a part of Georgia in which
historical evidence of race discrimination is the strongest.
Lodge v. Buxton, supra. As the McCleskey court noted, under at
least one of Baldus' analyses, racial effects were found to be
significant in rural areas, but not urban. Id. at 8l. Others of
Baldus' results showed statistically significant racial influences
when focused solely on purely rural judicial circuits. See
McCleskey Ex. DB 104. Because those were irrelevant to the issue
- 30
in McCleskey, they were not examined by that court; because there
was no reason for the McCleskey evidence to focus on Burke County,
no evidence directed at that jurisdiction was presented in the
McCleskey hearing.
The evidence would, of course, have relevance to the issue
in this case. It is encompassed by Spencer's proffer here. See
Second Supplemental Brief of Petitioner-Appellant on Rehearing En
Banc, at 9-10. It is strongly supplemental by the historical evi-
dence of racial discrimination in Burke County generally, and in
his case in particular. That evidence, too, remains to be consid-
ered in Spencer's case, regardless of the outcome of McCleskey.
CONCLUSION
The district court's decision denying a hearing on Spencer's
claim of racial discrimination should be reversed, and the case
remanded for a full evidentiary hearing on this issue.
Dated: April 27, 1984
Respectfully submitted,
BARRINGTON D. PARKER, JR.
CLAUDIA J. FLYNN
MARTIN S. HIMELES, JR.
415 Madison Avenue
New York, New York 10017
EDWARD P. TOLLEY
304 East Washington Street
Athens, Georgia 30601
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
TIMOTHY K. FORD
99 Hudson Street
New York, New York 10013
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER-APPELLANT
= 7)
re Wen (lend om
CERTIFICATE OF SERVICE
I hereby certify that I am one of the counsel for petitioner-
appellant James Lee Spencer in this action, and that I served the
annexed Third Supplemental Brief for Petitioner-Appellant On Re-
hearing En Banc on respondent-appellee by placing copies in the
United States mail, first class mail, postage prepaid, addressed
as follows:
william BB. Hill, Jr., ESQ.
First Assistant Attorney General
132 State Judicial Building
40 Capitol Square S.W.
Atlanta, Georgia 30334
All parties required to be served have been served. Done
this 27th day of April, 1984.
en Cnd be
JOHN CHARLES BOGER
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JAMES LEE SPENCER,
Petitioner-Appellant,
- against =
WALTER D, ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent-Appellee.,
On Appeal From The United States District Court
For The Southern District of Georgia
Augusta Division
FIRST SUPPLEMENTAL BRIEF FOR PETITIONER-
APPELLANT ON REHEARING EN BANC
BARRINGTON D, PARKER, JR.
CLAUDIA J, FLYNN
MARTIN S. HIMELES, JR.
415 Madison Avenue
New York, New York. 10017
EDWARD P, TOLLEY
304 East Washington Street
Athens, Georgia 30601
JACK GREENBERG
JAMES M., NABRIT, III
JOHN CHARLES BOGER
99 Hudson Street
New York, New York 10013
ANTHONY G, AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER-APPELLANT
STATEMENT REGARDING PREFERENCE
This is an appeal from the denial of habeas corpus
relief sought under 28 U,S.C. §§ 2241-2254 from the judgment
of a state court. This appeal should be given preference in
processing and disposition pursuant to Rule 12 and Appendix
One (a) (3) of the Rules of the Court,
STATEMENT REGARDING ORAL ARGUMENT
The Court directed oral argument en banc in its
order of December 13, 1983,
TABLE OF CONTENTS
Page
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ,.,::. 1
INTRODUCTION EE I BE NE NE BE BE BE IE I BE NE BE NE EE NE BE BE Bk BE BE BE BE BE Bh BE BE Bh BE EE BE BE BE EE BE EE J 2
STATEMENT OF THE CASE EE IE BE NE NE IE EE EE BE BE BE Bh NE BE BE BE BE NE Bh BE BE BE BE EE BE EE EE J 6
A, Course of Prior Proceedings :s33333332139 6
1. State Habeas Proceedings .:s+33392 6
2, Federal Habeas Proceedings ssssss35 13
3. The Baldus Studies ssrsvsssssrssrsns 19
Bs Standard of Raview sssrrrsssrrssssssssnsss 22
SUMMARY OF ARGUMENT LE TE BE NE I BE BE BE NE BE BE Bk Bk Bh NE NE Bh BE NE BE BE BE BE BE BE BE BE EE EE 22
STATEMENT OF JURISDICTION EI Bh BE NE BE IE IE BE 2h NE BE BE BE BE BE BE BE BE BE BE Bh BE BS J 25
ARGUMENT EE NE TE BE NE BE BE NE IE NE RE BE NE BE RE NE NE NE BE RE Nh BE RE IE BE EE EE BE BE BE NE NE BE BE BE BE EE BE EE BE 25
I. Petitioner Is Entitled Under Townsend
v. Sain, 372 0.8. 293 (1963), and. 28
U,S.,C. § 2254(4d) to An Evidentiary
Hearing on His Claims of Arbitrariness
and Racial Discrimination .ssss3s33s3333312s 25
: if This Court Should Decline to Resolve
Either the Factual or the Legal Merits
of Petitioner's Claims on a Barren
Record EE I I BE BE I NE BE BE BE RE NE NE BE Bh BE NE NE EE NE EE BE NE NE EE BE BE BE EE BE EE EE NE Be BE J 32
hk III, If This Court Chooses to Reach the
: Broader Legal Issues on the Present
Record, It Should Hold: (i) That Syste-
matic Discrimination in Capital Sen-
tencing Based Upon Either the Race of
the Defendant or the Race of the Victim
Violates the Fourteenth Amendment;
(ii) That Both Arbitrariness Under the
Eighth Amendment and Intentional Dis-
crimination Under the Fourteenth Amend-
ment May Be Proven by Statistical Evi-
dence; and (iii) That Arbitrary or
Discriminatory Imposition of Capital
Statutes Violates the Eighth Amendment .... 35
(1)
Page
A, Systematic Discrimination in
Capital Sentencing Based Upon the
Race of the Defendant or the Race
of the Victim Violates the
Fourteenth Amendment .::s33333233:22230 36
1. The Historical Purpose of the
Amendment T 329 FST TT SPT E ST TT PRED PSST ISD 36
2 Traditional Equal Protection
Principles TT PEL PLE TDR RLS TTT ETRY DYED 39
LH Race as an Aggravating
Circumstance (DE JE BE BE BE I EE BE BE BE BE BE BE BE BE BE BE BE EE BE J 43
Bs Intentional Discrimination Under
the Fourteenth Amendment May Be
Proven by Statistical Evidence .:s313319 44
Ce Arbitrary or Discriminatory
Imposition of Capital Statutes
Violates the Eighth Amendment ...:¢v303 51
CONCLUSION LE BE I NE BE IE NE BE BE BE BE NE EE NE NE NE NE BE EE BE BE BE BE EE ER BE BE EE BE BE BE BE BE Bh BE BE BE BE J 54
APPENDIX A: "Statement of Facts" From
Petitioner's Post-Hearing
Memorandum of Law in Support of
His Claims of Arbitrariness and
Racial Discrimination, McCleskey
v. Zant, No, C-81-2434A (N.D,
Ga., filed September 26, 1983)
(ii)
TABLE OF AUTHORITIES
Page
Case
Adams v. Wainwright, 709 F.2d 1443 (llth Cir,
1983) 2 9 2 9 9 OTD PTT DPD DTP PSTD TYP EERE 21
Alabama State Federation of Labor wv, McAdory,
325 J.S5. 450 (ITLBY oo anrsisnsvnrsrsnrs sans vases 34
Alexander v, Louisiana, 405 U.S. 625 (1972) +3+3+s B50
Ashwander v., Tennessee Valley Authority, 297
DsSs 288 (1936) IEEE BE TE Th UE BE Bh NE NE EE NE BE NE BE BE NE BE BE BE BE NE EE EE IE EE EE NE BE BE EE J 33n
Ballard v, United States, 329 U.S. 187 (1946) .... 42
Borden's Farm Products Co, v. Baldwin, 293
U.S, 194 (1934) PE NE TE BE BE NE NE NE Bh Bh I BE NE NE BE BE BE EE BE BE BE BE EE Bh BE BE BE BE Be BE J 24
Briscoe v, Lahue, 103 8, Ct, 1108 (1983) sassssssss 38
Brown v. Board of Education, 347 U.S, 483
(1954) E20 J JE I NE NE BE BE JE BE BE BE BE NE BE BE BE BE NE BE EE NE NE BE BE BE IR BE BE BE NE BE BE NE BE BE Bh BE BE BE J 34
Castaneda v, Partida, 430 U.S. 482 (1977) ++3+++»» 48, 50,
Chastleton Corp, Vv, Sinclair, 264 U,S. 543
(1924) [IEE IE EE PE DE RE OE A Th I Bn I 2h 2h BE BE Eh 2 Bh BE EE NE BE BE Eh BE Ek BE BE Bh EE BE NE BE EE BE EE EE J 24, 33
Cleveland Board of Education v., LaFleur, 414
U+S. 632 (1974) JOE I BE I I I BE Bh BE EE BE NE BE BE BE BE BE Bh BE BE BE BE BE EE BE NE EE BE BE Eh BE J 40
lh Coker v., Georgia, 433 U.S. 584 (1977) ssnvsnsssssry B31
Coleman v., Zant, 708 P.24 54) (11th Cir, 1983) 4... 26n, 29
Cuyler v., Sullivan, 446 U.8. 335 (1980) sarasrsrss 22
Dickerson v, Alabama, 667 F,2d 1364 (llth
Cir,), cert, denied, 103 8S. Ct, 173: (1982) s4s++s 35
F.S. Royster Guano Co, v, Virginia, 253 U,S,
: 412 {1920) savers rrrvrrsssnsasvasssnrsssrssnssnsnssvey 39
(iii)
Page
FUrman va. Georgia, 408 U.8., 238 (1972) ssssrsnssss 35, 32,
36, 50n,
51, 52
General Building Contractors Association, Inc.
v. Pennsylvania, 458 U.S. 375, 102 Ss, Ct.
3141 (1982) LZ 2h Bh NE TE BE UE I BE BE Eh BE BE BE BE NE Ih EE NE BE BE BE BE BE BE BE BE BE BE Bk BE BE EE BE BE J 38
Gibson v. Jackson, 578 F.2d 1045 (5th Cir.
1978), cert, denied, 439 U.S. 1119 (1979) +4332» 27n, 28n
Godfrey v, Georgia, 446 U.S. 420 (1980) +3ss33+3++ 25, 51,
53
Gomillion v, Lightfoot, 364 U.8. 339 (1960) +4+4++ 33n
Gregg Vv, Georgia, 428 U.S. 153 (1976) +3ss33+v3r9292+ 42, 51,
52, 53
Griffin v., Illinoig, 331 U.S, 12 (1956) +3s333++++ 4ln
Guice v, Fortenberry, 661 F,2d 496 (5th Cir,
1981) (en banc) BEER EEEEREIEEIT IEE IEE IE IEE IE IE IE IE IE IE BE NE NE IE IE I 26n
Hernandez v. Texas, 347 U.S. 475 (1954). s323333333» 50
International Brotherhood of Teamsters v,
United States, 431 U.S, 324 (1977) ss2vsrs1332s+ 486
Jackson v. Virginia, 443 U.S. 307 (1979) cesvssess 22
Johnson v. Zerbst, 304 U,S. 458 (1938) .ssss3s3s33s 39
Jurek v, Estelle, 593 F.2d 672 (5th Cir,
1979), vacated and reaffirmed on other
RC : grounds en banc, 623 F,2d 929 (5th Cir,
1980), cert, denied, 450 U,S, 1001, 1014
(1981) CE BE I NE NE NE BE BE NE NE EE NE IE NE EE NE NE JE NE IE NE RE BE NE IE BE BE NE BE BE BE IE NE Bh BE EE EE ER EE EE J 48, 52
Liverpool, New York, & Philadelphia Steamship
Co, v. Commissioners of Emigration, 113 U,S,
33 (1885) $3399 3:3.93.3.339 0 3-393 9399399390999 9993:379y 33
Loving Vv. Virginia, 388 U,8., 1 (1967) ssssarvsransrs 36, 43
May v., Anderson, 345 U.S. 528 (1953) sa viirasnsvrre. IN
(iv)
Page
McCleskey v, Zant, No, C-81-2434A (N,D, Ga,) +»sss 5, 5n,
19, 19n,
21n, 24,
31, 34,
35, 54-55
McGautha v, California, 402 U,8, 183 (1971) .3+2+s 41ln
Norris v. Alabama, 294 U.S. B87 (1935) sessrvrsssss 50
» Parker v. Los Angeles County, 338 U.S. 327
(1949) EE BE NE BE BE BE BE BE Nh BE BE Bh BE NE BE BE Eh BE BE BE BE NE EE EE NE BE NE BE BE EE BE BE BE BE BE BE BE NE BE BE J 33
Penick v. Columbus Board of Education, 583
F.2d 787 (6th Cir. 1978), aff'd, 443 U.S.
449 (1979) EE BE BE BE BE NE BE BE BE NE NE BE NE NE EE BE NE EE BE IE EE BE NE EE BE BE EE BE BE BE BE SE BE BE BE BE J 48-49
Proffitt v. Florida, 428 U.S. 242 (1976) ++s22334> 21,52
Proffitt v., Wainwright, 685 F.24 1227 (llth
Cir, 1982), cert, denied, 52 U.S.,L.W. 3423
{U.8S, Nov. 29, 1983) LIE BE B= BE BE BE BE BE BE NE EE BE IE IE NE Bk BE BE EE BE BE NE NE BE BE EE J 53
Reid vi. Covert, 354 U.8.: 1 (1957) waverssnsansrarvs 41N
Roe Va Wade, 410 U.S» 113 (1973) *T 9 9 9 FT PPT 9 PED YY 40
Rogers v. Lodge, 458 U.S. 613, 102 ss, Ct, 3272 :
(1982) ER RN NI ER SP Sa Rr EMDR ANNE Si ii 27n, 45
Rose v, Mitchell, 443 U.S: 545 (1979) sasvrrrsrrrsr 42
San Antonio Independent School District wv,
Rodriguez, 411 UB 1 (1973) EE BE BE IE IE IE BE BE BE BE BE BE BE BE BE EE EE BE J 33-34
Screws v, United States, 325 U:S+ 91 (1945) +a.+333 39n
Searcy v, Williams, 656 F.2d 1003 (5th Cir,
1981), aff'd sub nom.,, Hightower v., Searcy,
455 +S 984 (1982) I 2 BE Bh B= BE JE I Nk IN INE BE Bk Bh BEE BEE BEE IE JE Bk IE BEE IE BE IE IE Eh I 45-46
Skinner v. Oklahoma, 316 U.8, 535 (1942) s3131+2++ 40, 41]
Smith v, Balkcom, 660 F.28 573 (5th Cir,
1981), modified per curiam, 671 F.2d 858
{3th Cir.), recalled, 677 F,24 20 (5th
Cir. ), cert. denied, 103 8S, Ct, 181 (1982) ++3%» 17, 18,
18n, 20,
23, 24,
31n, 32,
44, 52n
(v)
Page
Smith v. Balkcom, No, 5588 (Super. Ct, Butts
COay Ga,, June 25, 1982) EE I EE NE BE BE BE BE BE BE BE BE BE NE BE BE BE NE BE BE BE ER J 19n, 31ln
Sith v. Texas, 311 U.5, 128 (1940) ,4s9svnssvsrss 42
Spencer v., Hopper, 243 Ga, 532, 255 S.,E.2d 1,
cert, denied, 444 U,S5. B85 (1979) sssssrrrsrsrrs 12
Spencer v, Zant, 715 P.24 1562 (llth Cir. 1983) +... 2, 30, 31
Ri Spinkellink v., Wainwright, 578 F.2d 582 (5th
Cir. 1978), cert, denied, 440 U.S. 976
(1979) 2 9 9 9 99 DDS PT PDP YRS DOSY DEY PSR SORTS TET RT DPSS YY 17, 18,
19, .25,
31, 32,
51, 52,
52n
Stanley v, Illinois, 405 U.S. 645 (1972) sa23333s+5 40
Stephens v, Kemp, 52 U,.S.L.W. (U.S. Dec,
13, 1983) EOE JE BE BE Nh IE NE NE EE BE BE NE NE NE NE NE NE NE BE NE BE BE EE BE BE NE EE NE EE BE BE EE BE BE EE BE IE SE J 46n
Stephens v. Kemp, No, 83-8844 (llth Cir. Dec,
13, 1983) CIE BE BE BE NE 2h BE BE BE BE BE NE BE BE EE IE EE Bh BE NE EE NE IE EE BE BE BE BE BE BE BE EE BE EE EE EE EE J 3, 3n
Strauder v, West Virginia, 100 U.S, 303 (1880) .., 41
Thomas Vv. 2ant, 697 F.24 977 (llth Cir, 1983) +4»s 23, 2610,
29
mownsend Va. Sain, 372. U0,8,:203 (1963) uussvarreeay 14, 23,
as. 26,
26n, 27,
27n, 28,
@ df
United States v., Texas Education Agency, 579
F.2d 910 (5th Cir, 1978), cert, denied, 443
B.S, 915 (1979) CE BE Bh I Bh BE BE BE NE BE BE BE BE BE BE Bk EE Bh BE BE BE BE EE BE BE EE Bh BE EE BE Eh J 48, 49
United States Department of Agriculture v.,
Moreno, 413 U.5., 528 (1973) EE BE BE BE BE Th NE NE Bh BE BE BE BE IE EE NE BE EE BE J 39
Village of Arlington Heights v., Metropolitan
Housing Development Corpb., 429 U,S. 252
(1977) a RN eI Oa EMIS SI DS IEE gS ngs 27n, 49
(vi)
Page
In re Wainwright, 678 F.2d 951 (llth Cir, 1982) ., 26n
Washington Vo» Davis, 426 U.S, 229 (1976) T23TVIVIDIVDY 42, 47-48
Williams v. Dekalb County, 582 F.2d 2 (5th
Cir, 1978) (en banc) TT 9 T PTT PITT IER TDRSS ET DIY OOD 45
Williams v. Georgia, 349 U.S, 375 (1955) .33ss233+ 41n
3 Wilshire 0il Co, v, United States, 295 U.S.
100 {1935) tI BE I TE I NE NE IE BE RE NE NE NE BE BE BE BE BE EE NE NE EE EE EE EE I EE EE EE EE EE EE EE EE EE EE 33
Yick Wo v, Hopkins, 118 0.8. 356 (1886) s++23s+s++ 33n, 38,
39n-40n,
45, 49,
50n
Zant Vs Stephens, 456 aS» 410 (1982) TIT TITEIYI SIDI 25, 5,
54
Zant v. Stephens, 103 8S. Ct. 2733 (1983) ssssvevss 41n, 43-
44, 50n
Statutes
18 U.8.C+ § 3006A LE J BE NE NE I NE BE NE NE BE BE NE NE BE TE NE NE BE Bh BE NE BE EE BE BE J 13n
28 U.S.C, (7
%
2253 S20 JE IN I NN BE NE BE BE BE BE BE BE NE BE BE NE NE BE EE BE BE BE BE BR EEE 25
28 U.S.C § 2254 EI NE BE Bh IE Bh Bh IEE Bk NE NE BE Bh BE BE BE BE BE EE BE BE Bh BE EE EE BE J 27n
§ 28 U+8:C, 2254 (4) LE Jn I BE IE Ik Ik Ih IN BE BR BNE BEE BE IN NE BE BE BE NE BE EE BE EE J 14, 23;
257 295,
3 : 21. 28,
9
28 D+SsCs 2254(4) (1) TT IIIT DLEL SITE NDI 26 S
28 UB.C. § 2284LAYIZY sasessrsvssnanwsonnsnn. 27
20 0.3.08 JI54{AI (3) ssvrvsrraersyrinasares 25, 29
23 0.8.0, 8 1981 Lain isv ss iniianmisavsa ns snsssindd
Federal Rules of Appellate Procedure
Rule 10(e) tJ I I I NE NE NE BE Bh I Bh Bk BE Bh Bh IE NE BE BE Bh BE BE BE EE BE BE BE BE J 35
Rules Governing Section 2254 Cases
Rule 7 [JOE I IE BE EE BE IE BE BE I I Ih JOE JE IE BNE JOE DO: DE JN BE BNE INE Nh IE Bh INE BE BE BE BE 35
(vii)
Page
Other Authorities
Report of the Joint Committee on Reconstruc-
tion, at the First Session, Thirty-Ninth
Congress (1866) FE IE EE BE IE IE Bh Bk Bh BE Bh Bh BE BE IE BE BE BE Bh BE BE BE BE Bh BE BE BE NE SE BE BE J 37n, 38n
Bikle, Judicial Determination of Questions of
Fact Affecting the Constitutional Validity
of Legislative Action, 38 Harv. L. Rev, 6
& (1942) RE IR 0 I NE NG I a Cg LT A SE NE I go 34
Bowers & Pierce, "Arbitrariness and Discrimi-
nation under Post-Furman Capital Statutes,”
16 Crime & Deling., 563 (1980) EE BE I BE BE BE BE BE BE BE Bh BE Bh Bh BE BE BE J 15
Darst, Legislative Facts in Constitutional
Litigation, Sup, Cr: Bev, 15 (1960) ssrensvrrar 34
Wolfgang & Riedel, "Race, Judicial Discretion
and the Death Penalty," 407 Annals 119
(1973) IEE DE RE TE 2h BE IE 2h Nh BE BE NE NE BE RE BE NE BE BE NE NE UE J NE BE Uh BE UE DE NE BE Ih BE BE BE NE BE Bh BE J 8
Wolfgang & Riedel, "Race, Rape and the Death
Penalty in Georgia," 45 Ma, J. Ortho. 658
(1975) COE IE ETE TE NE NE NE I NE RE NE NE RE RE NE NE NE RE NE NE AE EE BE EE NE IE NE IE BE BE AE AE BR BE BE BE BE BR 8-9
(viii)
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No, 82-8408
JAMES LEE SPENCER,
kA Petitioner-Appellant,
~ against =
WALTER D, ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent-Appellee.,
On Appeal From The United States District Court
For The Southern District Of Georgia
Augusta Division
FIRST SUPPLEMENTAL BRIEF FOR PETITIONER-
APPELLANT ON REHEARING EN BANC
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
RAS 1. Did the District Court err in refusing to order
an evidentiary hearing on petitioner's claim that the death
penalty is being imposed in an arbitrary and discriminatory
manner in the State of Georgia?
2, Did petitioner's multiple efforts to inform the
District Court of the inadequacy of the state court record
and the nature of his evidence on those claims constitute a
sufficient proffer to require a hearing or, at a minimum, to
require further investigation by the Court?
3, Other claims concerning the composition of the
‘jury panel, the adequacy of the trial court's jury charge,
the standard for determining competence to stand trial and
the exclusion of jurors, are raised by this appeal. (See
specifically the Statement of Issues at pp. 1-2 of Petition-
er's opening brief.) Petitioner's opening and reply briefs,
supplemented by his letter to the panel dated March 16, 1983,
set forth his position on those issues, We believe that each
of those claims entitles petitioner to relief, and we commend
our prior submissions to the attention of the Court,
INTRODUCTION
On September 30, 1983, a panel of this Court held
that petitioner James Lee Spencer had been deprived of his
right to a federal hearing on the merits of two constitu-
tional claims: (i) "that blacks and women were grossly un-
derrepresented on the jury array from which his jury was se-
lected,” and (ii) "that Georgia administers its death penal-
ty statute in an arbitrary and discriminatory manner," The
panel remanded the case to the District Court for an eviden-
tiary hearing. Spencer v. Zant, 715 F.2d 1562, 1567, 1578
{llth Cir, 1983).
That disposition was consistent with -- and, indeed
required by -- well-settled law applicable to habeas peti-
tions, The remand did not announce new principles or contra-
vene prior precedents. The full Court, however, by order
entered December 13, 1983, vacated the panel's opinion and
directed rehearing en banc.
In this first supplemental brief, we will confine
R ; our presentation to the general question (elsewhere identi-
fied as significant by several members of the Court): "whe-
ther a proffer of the Baldus study requires an evidentiary
hearing,"! realizing that, as this Court has suggested, the
"question may very well include consideration of the merits
of the issue of discriminatory application of the death pen-
alty and other related issues." Stephens v. Kemp, No. 83-
8844, at 2 (llth Cir. Dec. 13, 1983} (Godbold, Ch, J., 4is~
senting), 2
At the outset, however, we respectfully urge that
the evidentiary record in this case -- as it presently stands
-- is not a satisfactory predicate for determining broad
constitutional questions about discriminatory application of
l Stephens v., Kemp, No, 83-8844, at 2 (llth Cir, Dec. 13,
1983) (Godbold, Ch, J,, Johnson, Hatchett, Anderson &
Clark, JJ., dissenting from denial of suggestion for re-
hearing en banc); id, at 4 (Kravitch, J., dissenting).
2 Petitioner's response to ten specific questions posed by
this Court will be contained in a second supplemental
brief to be filed by January 11, 1984, Counsel received
notification from the Court of its specific interest in
those questions only shortly before this first supple-
mental brief was to be filed and could not adequately
incorporate their answers to those questions into this
brief by the filing deadline,
the death penalty, an issue of consummate significance to the
administration of justice in this Circuit, Since the eviden-
tiary hearing that petitioner has sought was denied by the
District Court and has not occurred, the record does not
contain the studies and findings of Baldus and his col-
leagues, nor have those studies been subjected on this record
to examination, cross-examination, or review and analysis by
the state's witnesses.
The relevant facts developed by the Baldus studies,
though compelling, are necessarily detailed and complex,
Since legal judgments on questions of such complexity ought
to be shaped only by a full and clear understanding of actual
facts, we urge this Court not to determine at this time, as a
matter of law, such issues as how strong the pattern of
racial disparity must be in capital sentencing to establish
cognizable discrimination, ae iher a persistent pattern of
random sentencing violates the Eighth Amendment's proscrip-
tion of arbitrariness, or what the constitutional signifi-
cance of pervasive race-of-victim discrimination should be,
Such determinations should be postponed until the parties can
provide the Court with a complete picture of just how strong
those patterns of discrimination are in the State of Georgia,
just how random capital sentencing has become, and how un-
shakable are the racial disparities,
That picture should be available shortly. The
Baldus studies have recently been the subject of a two-week
evidentiary hearing, held August 8-19, 1983, in another capi-
tal habeas proceeding in the United States District Court for
the Northern District of Georgia, McCleskey v., Zant, No, C-
81-2434A (N,D, Ga, 1983). The substantive constitutional
claims asserted in McCleskey are virtually identical to those
asserted here. In that case both the State of Georgia and
the petitioner were afforded ample pre-hearing discovery.
Interrogatories were served and answered, subpoenas duces
tecum honored, and opposing experts deposed, At trial the
parties offered comprehensive testimony from Professor
Baldus, from his colleagues and from independent experts who
reviewed Baldus' methodology, analyses, and conclusions,
After extensive post-hearing briefing, the case was submitted
on November 14, 1983, and is awaiting decision,
Since a better record is imminent, we urge this
Court to remand the present case to the District Court on the
narrow grounds redozhized by the panel, or to hold its con-
sideration and decision pending an expedited appeal by the
unsuccessful party in McCleskey v., Zant, 3 Because the Court
3 Alternatively, the Court could exercise its authority
under Rule 10(e) of the Federal Rules of Appellate Pro-
cedure and Rule 7 of the Rules Governing Section 2254
Cases to expand the present record on appeal by includ-
ing the transcript and exhibits in McCleskey v., Zant.
may not be disposed to that approach, however, we address
below the questions raised by the Court,
STATEMENT OF THE CASE
A, Course of Prior Proceedings
Xl, State Habeas Proceedings
Petitioner commenced state habeas corpus proceed-
ings in March of 1977. In his first petition he specifically
alleged that,
"the death penalty is in fact administered and ap-
plied arbitrarily, capriciously, and whimsically in
the State of Georgia,"
(State Petition ¢ 10A) and that,
"petitioner's death is being exacted pursuant to a
pattern and practice of Georgia prosecuting au-
thorities, courts, juries and Governors to discrim=-
inate on grounds of race . , » in the administra-
tion of capital punishment”
(State Petition ¢ 12),
Prior to his state habeas hearing, petitioner filed
a motion for appointment of experts. He stated that he was
an indigent and alleged that the cases he cited in Attach-
ment A, which were
"the result of a factual investigation petitioner's
counsel was able to conduct, in the time and with
the resources available to them, by reading and
analyzing the appellate cases reported in the
Georgia reports, establis[h] a prima facie showing
that the death penalty in Georgia is being adminis-
tered arbitrarily and capriciously. Because of his
indigence, petitioner is unable to conduct the fur~
ther investigation which would enable him to estab-
lish conclusively that the administration of the
Georgia capital punishment statute violates the
Eighth Amendment of the Constitution of the United
States and that it is discriminatorily imposed
against black and indigent defendants in violation
of the Fourteenth Amendment to the United States
Constitution. Petitioner respectfully submits that
before he is executed, the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to
the Constitution of the United States entitle him
to the assistance of a state-supported factual
investigation,"
(Petitioner Spencer's Motion at 1-2)
At the outset of Spencer's state habeas corpus
hearing, his counsel sought to address the court on the mo-
tion, but was instructed instead to begin with his presenta-
tion of evidence. (St. Hab, Tr, at 24)4 Following the com-
pletion of that evidence, counsel again addressed the motion:
"[T]his Motion is an attempt to provide this indi-
gent petitioner with a factual investigation of the
manner in which the death penalty has actually been
imposed in Georgia since the enactment of the 1973
statute,”
"We have presented what we think is a prima facie
case today in support of the claims in our peti-
tion. The Petitioner is indigent . - . » We think
there is a great deal more factual data which we
could obtain if we had funds for an adequate inves-
tigation 4 +» +». + We think that the production of
this evidence would enable us to establish claim]
10, [arbitrariness, racial discrimination] in a way
that, simply because of a lack of funds, we are not
able to now,"
(St, Hab. Tr. at 221-22) (pauses omitted). Petitioner subse-
quently filed a memorandum of law in support of his request,
4 Each reference to the transcript of the hearing held in
this case in the Superior Court of Tattnall County on
May 12, 1977, and July 13, 1977, will be indicated by
the abbreviation "St, Hab, Tr."
On July 13, 1977, during the second day of hear-
ings, the state court overruled petitioner's motion:
"The Court rules that it will not appoint investi-
gators, nor allow . . , or order that State funds
be appointed for investigators or for experts and
for the extent that a continuance is requested in
that regard for the appointment of experts and for
experts to do their work, if appointed . . or
(St. Hab, Tr, at 268-69)
During his state hearing, petitioner produced all
the evidence available to him in 1977 on those claims:
(i) the transcript of another capital habeas hearing, in
which a volunteer expert, Dr, Tobe Johnson, had given brief
testimony; > and (ii) the testimony of Stephanie Auerbach.
Dr. Johnson, a professor of political science at Morehouse
College, explained that although he had himself conducted no
studies on racial discrimination in capital sentencing in
Georgia, he had reviewed research studies conducted by other
social scientists on that issue (Ross St. Hab. Tr, at 111-
12), Dr, Johnson testified that he had reviewed two particu-
larly relevant studies that focused on the State of Georgia:
one by Marvin E, Wolfgang and Mark Riedel entitled "Race,
Judicial Discretion and the Death Penalty," 407 Annals 119
(1973), and the other by Marvin E. Wolfgang and Mark Riedel,
5 That testimony, originally given in the case of Ross v.
Hopper, was admitted as Petitioner's Exhibit 3, Each
reference to the transcript of Dr, Johnson's testimony
will be indicated by the abbreviation "Ross St. Hab.
Tr,," followed by the number of the page on which the
reference may be found.
"Race, Rape and the Death Penalty in Georgia," 45 Am, J,
Ortho, 658 (1975) (Ross St. Hab, Tr, at 111-13; Pet, Exhibits
9 &§ 10), On the basis of those studies he had formed an
expert opinion, Neither of those studies, however, involved
data gathered in Georgia since 1965 (Ross St. Hab. Tr. at
113).
Although the court permitted Dr. Johnson to be
qualified as an expert (Ross St, Hab, Tr. at 125), and to
render his expert opinion that "the most significant factor
and probably the most predictive factor related to the actual
execution of the death sentence in the State of Georgia is
the race of the defendant and the race of the victim" (Ross
St, Hab. Tr, at 141), the court sustained the State's repeat-
ed objections to testimony by Dr. Johnson concerning the
findings reported by Wolfgang and Riedel, thereby precluding
the admission of evidence on the principal factual bases
underlying Dr, Johnson's opinion. (Ross St, Hab. Tr. at
134-35; see also id, at 128-31, 136), Moreover, the state
court declined petitioner's offer of proof concerning Dr.
Johnson's testimony on data presented in the Wolfgang and
"Riedel studies (Ross St. Hab. Tr, at 137). Although the
state court eventually received those studies, it did so for
record purposes only, "as exhibits, not as to what is con-
tained in the exhibits" (Ross St, Hab, Tr, at 140). On
cross-examination, the State obtained an acknowledgment from
Dr. Johnson that his expert opinion could not rest solely on
the limited data that the state court had permitted into
evidence,
In addition to Dr, Johnson's testimony, petitioner
offered the volunteer testimony of Stephanie Auerbach, the
author of a Georgia Department of Corrections report, "Capi-
tal Punishment in Georgia: An Empirical Study 1943-1965,"
which set forth the case histories of condemned Georgia in-
mates during the 1943-1965 period whose sentences had been
commuted and who had eventually been paroled.
The State objected to the introduction of Ms,
Auerbach's report, contending that it was inadmissible hear-
say and that it was irrelevant in part because the study cov-
ered only cases from 1943 to 1965 (St. Hab, Tr. at 181-82),
In response, counsel for petitioner stated:
"Now with respect to the ., . ., allegation that it
is outdated, as [co-counsel] stated at the begin-
ning of the hearing today, we have a Motion for
Further Research and for Further Study pending in
this Court, which we will ask the Court to rule
upon, I couldn't agree more that we need more re-
search, and that there is more material that we
could have, This, however, is the one item that we
do have at the moment, and it does tell us quite a
bit about what has been the past practice in the
State of Georgia and [I] think sheds some light at
least on the subject,”
(St, Hab, Tr, at 183), With some reluctance the state court
eventually admitted the Auerbach Report (St, Hab, Tr. at
510
185-86; Pet, Exhibit 7). Ms, Auerbach testified, on the
basis of her study, that it appeared that:
"Black persons were having the death sentence ap-
plied to them with greater frequency and that it
was being carried out finally against them with
greater frequency than White persons,”
(St, Hab. Tr, at 193)
In its order dismissing the petition, filed
August 18, 1978, the state court addressed petitioner's arbi-
trariness and racial discrimination claims under the general
rubric "the constitutionality of the death penalty." The
court made no factual findings on the pattern of imposition
of capital sentences under Georgia's post-Furman capital
statutes because no evidence had been available and none had
been presented,
The court observed that expert testimony from other
habeas cases had been submitted, but found that "the studies
conducted by the experts who testified in the case sub
judice, while covering time frames more recent than those who
testified in Ross and [John Eldon] Smith, do not furnish evi-
dence which establishes as fact that the administration of
the death penalty under the Georgia Statute is not constitu-
tionally permissible in every respect." (St. Hab, Tr. at 4)
As its legal conclusion, the state court noted that
both of the other cases in which similar testimony had been
- 11
initially offered had been affirmed by the Georgia Supreme
Court and then held:
"Testimony of the experts in the cases sub Jjudice,
added to that of the experts in Ross and Smith,
cannot be substituted for the legislative voice on
the subject authorized by the Constitutions of
Georgia and the United States as interpreted in
Gregg v. Georgia, supra, and more recently in Coker
- v, Georgia, 433 U.S.
{St. Hab, Tr. at 12)
On appeal petitioner raised both the denial of
substantive relief on those claims and the denial of his mo-
tion for funds, (See Brief for Petitioner-Appellant at 30-
41), The Supreme Court of Georgia affirmed the lower court's
order in Spencer Vv. Hopper, 243. Ga, 532, 255 S.E.24 1, cert,
denied, 444 U,S., 885 (1979). Addressing the substantive
question, the Georgia court held that those claims "have all
been considered and rejected by this court, or by the United
States Supreme Court, or both," Spencer v, Hopper, 255
S.E.2d at 5. The court also held that "a defendant has no
right to receive or spend state funds for the appointment of
- experts or investigators in habeas corpus proceedings, even
in death penalty cases," Id. at 4,
~yolL
24 Federal Habeas Proceedings
In his federal petition, filed November 10, 1979,
Spencer alleged arbitrariness and racial discrimination in
terms virtually identical to those in his state petition
(Fed. Pet. §Y 16-23; R, 9-11),°
4 Following a period of discovery on other issues,
and after an administrative change of judges, petitioner and
the State submitted a Joint Status Report to the Court in
early May 1980. (R. 109-21) In that Report both parties
identified one disputed issue of fact (whether petitioner had
challenged the composition of his grand and traverse juries)
and six disputed issues of law, one of which was the constic
tutionality of Georgia's statutory scheme for the imposition
of the death penalty. (R. 110) Petitioner requested an
evidentiary hearing on at least four of those issues, includ-
ing the issue of the arbitrary and discriminatory imposition
6 Within three weeks of filing his federal habeas peti-
tion, he also filed a motion "for the appointment of ex-
perts and investigators" (R. 95), which sought, pursuant
to 18 U.S.C. § 3006A, an order "authorizing the expendi-
ture by petitioner of reasonable funds . , . to cover
out-of-pocket travel expenses and reasonable witness
fees for the following witnesses . + » (ii) Glenn Pierce
of Northeastern University, a professional sociologist
and statistician who has studied extensively the pat-
terns of application of capital sentences in Georgia
« +» +» [and] (iii) Dr. David Baldus of the University of
Iowa School of Law, a law professor and social scientist
who is studying Georgia's system of appellate review of
capital sentences" (R. 95-96). At a brief hearing on
November 30, 1979, the District Court reserved ruling on
petitioner's motion for funds (R. 2), ultimately denying
it on December 29, 1981 (R. 143),
\
\
\
al
13
of the death penalty. (R, 110-11) The Joint Status Report
requested that those issues be consolidated for purposes of
an evidentiary hearing with other death penalty cases then
currently pending in the Southern District of Georgia,
{R. 111)
On May 27, 1980, petitioner followed the Joint
Status Report with an extensive memorandum of law in support
of an evidentiary hearing, outlining the course of state
habeas proceedings (R., 124-26). He noted that those proceed-
ings "were characterized by an absence of funds for investi-
gation, for expert witnesses and for out-of-pocket expenses”
(R., 124), and explicitly stated that "independent forensic
and social science research conducted since petitioner's
state habeas corpus hearing in 1977 makes available to this
Court significant new findings which bear directly on peti-
tioner's claims and which were previously unavailable”
(R, 126), In support of that factual proffer, petitioner
cited both Townsend v. Sain, 372 U.S. 293 (1963), and 28
D.S.C. § 2254(4) standards (R., 133-34).
Subsequently, on January 15, 1981, petitioner filed
an additional memorandum of law, again recounting the inade-
quacy of state habeas proceedings (R. 225-30) and setting
forth the legal basis for a hearing (R., 236-38), He also
made a written proffer of all then-available social scien-
tific evidence, specifically directing the District Court's
“14 -
attention to the published work of William Bowers and Glenn
Pierce (R, 231). Petitioner appended to the memorandum a
prepublication draft of the article, eventually published as
Bowers & Pierce, "Arbitrariness and Discrimination under
Post-Furman Capital Statutes," 16 Crime & peling. 563 (1980).
During a hearing called by the District Court on
January 26, 1981, to determine whether or not to hold an evi-
dentiary hearing, counsel for petitioner outlined in detail
the grounds on which the state hearing had been inadequate
(Fed, Tr. at 14-31),7 and explicitly contended that the "fact
finding procedures employed were not adequate, the material
facts were not adequately developed, not a full and fair
hearing, failure to provide financial assistance by the State
render[ing] the defendants incapable of a fair hearing,”
(Fed. Tr, 17) In that proffer counsel contended that "signi-
ficant social science work has been done by a number of auth-
orities who have examined the pattern and practice of the
imposition of capital sentences in the State of Georgia
[which] . . . was not available in 1977 and was not even
underway," (Fed, Tr, at 21), and expressly assured the Court
that there was nothing in the
"state Hearing to suggest there was evidence avail-
able on the arbitrariness issue or the racial dis-
crimination issue which was not presented to those
7 Each reference to the transcript of the hearing held in
the District Court on January 26, 1981, will be indi-
cated by the abbreviation "Fed. Tr,"
“ 15 w-
State Courts. In fact, I will state in my place®
that there was none. There was no social science
work underway at that time on those issues,”
(Fed, Tr. at 25) Counsel also made an offer of proof that
post-Furman studies of capital sentencing patterns in Georgia
show racial and geographical arbitrariness, even when factors
such as the presence or absence of a contemporaneous felony
or the sex and age of the victim have been statistically con-
trolled (Fed, Tr, at 33-39), Specifically, petitioner prof-
fered:
"W]e offer to prove that capital sentencing con-
tinued to be grossly disproportionately imposed
against black defendants who killed white victims
[in the post-Furman eral. Indeed, against anyone
who is an offender, regardless of race, who kills
white victims or against black offenders, if the
race of their victim is held constant,
ded deri
"We would also offer to prove that this systematic
sentencing disparity is not diminished by the ap-
pellate sentencing review which is required under
the Georgia statute, We would offer to prove that
this disproportionate racial sentencing is of an
extreme magnitude or pervasive over successive
stages of the judicial process, from arrest for-
WALA sas a"
(Fed. Tr, at 38-39) Counsel also directed the Court to the
Bowers and Pierce article appended to petitioner's January
1981 memorandum of law, which included numerous statistical
tables showing racially disparate sentencing patterns in
Georgia (Fed, Tr. at 39-40).
8 In Georgia, an attorney's statement to a Court "in his
place" is the equivalent of a sworn statement,
- 16
The District Court denied petitioner's motion for
an evidentiary hearing at the close of the January 26 hearing
(Fed, Tr, at 133-34), In a subsequent written order entered
April 1, 1982, the Court dismissed the claims. (R. 318-68)
The Court first stated without elaboration that "[e]xtensive
findings of fact were made in the courts of Georgia on all
the issues" (R. 331), and found that "the record actually
contains facts sufficient to uphold a determination on the
issues . » . especially in light of precedent which controls
most of the issues" (R. 332),
Turning to that precedent -- chiefly the Fifth
Circuit's decision in Spinkellink v. Wainwright, 578 F.2d 582
(5th Cir. 1978), cert. denied, 440 U.S. 976 (1979), and its
initial opinion in Smith v. Balkcom, 660 F.2d 573 (3th Cir,
1981) -- the District Court concluded that the arbitrariness
and racial discrimination "issues have been effectively fore-
closed to the petitioners by judicial decisions in Gregg Vv.
Georgia, Spinkelink [sic] v. Wainwright, and Smith wv,
Balkcom" (R. 337). The District Court, noting petitioner's
proffer of statistical evidence, explained:
"They would show that sentencing patterns under the
new statute still reveal glaring disparities in the
imposition of the death penalty based upon race,
sex and poverty. This allegation may be true, and,
if so, would be sad and distressing, but this al-
legation does not alone show any infirmity in a
HE Ve BOD
statute otherwise found to be acceptable under the
Constitution.”
(R. 337),
Petitioner thereafter filed a timely motion under
Rule 59 of the Federal Rules of Civil Procedure specifically
adverting to two important, related developments (R. 380-81).
The first was the modification, on rehearing, by the Smith v.
Balkcom panel of its original opinion, which had rejected the
significance of statistical evidence of capital sentencing
disparities, In its opinion on rehearing the Smith panel
replaced a crucial paragraph of the original opinion with an
alternative paragraph clarifying the Court's actual holdings
in Spinkellink and Smith. The holdings as clarified were
directly contrary to the District Court's interpretation of
them.
The second development was the intervening availa-
bility, for the first time anywhere, of the extensive re-
search of Professor David Baldus, who in 1979 had undertaken
two exhaustive studies of the Georgia system. Petitioner
proffered to the District Court that
"Dr, Baldus has also completed additional research
on Georgia's capital sentence patterns, which peti-
tioner specifically proffers to this Court, that
reinforces and expands upon the evidence of racial
9 As modified, Smith stated: "In 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. 1982),
-il8
discrimination identified by Bowers and Pierce,
Dr. Baldus' evidence demonstrates that statistical-
ly significant racial discrimination is present in
Georgia's capital sentencing system, based upon the
race of the defendant and the race of the victim.
The discrimination persists even when only those
homicides resulting in murder indictments are exam-~
ined, including that subset of murder indictments
accompanied by aggravating circumstances. The dis-
crimination persists even in the subset of those
a cases submitted to a jury at a capital sentencing
- phase, The absence or presence of mitigating
circumstances in the various cases does not provide
a sufficient basis rationally to explain the dis-
crimination found."
(R. 380-81 n.l) That proffer directly met the evidentiary
criteria articulated on rehearing by the Smith panel. The
District Court nevertheless denied petitioner's Rule 59
motion on May 10, 1982 (R. 387-91), and reiterated its
reliance on Spinkellink (R. 390-91).
3 The Baldus Studies
The evidence that petitioner proffered in late
April of 1982 has not yet been published in written form, 10
It was presented at length during the two-week McCleskey Vv.
Zant hearing in August 1983, at which time petitioner also
» of fered over 130 exhibits, many of them complex statistical
10 A twenty-nine page preliminary draft report was filed in
a state habeas proceeding on behalf of a Georgia capital
inmate in June 1982, See Smith v, Balkcom, No. 5588
(Super. Ct, Butts Co., Ga., June 25, 1982) (Successor
Petition, Appendix D). A similar preliminary draft was
filed as part of a Rule 59 motion on June 25, 1982 in
McCleskey v. Zant, No, C-81-2434A (N.D., Ga.). A more
extensive draft report was tendered in August 1983 as
petitioner's Exhibit D 113 in McCleskey v., Zant, but was
refused by the District Court in lieu of live testimony.
10
tables and summaries. We have contended (pp. 32 to 35,
infra) that this Court should not, on the present record,
decide the factual merits of petitioner's claims or antici-
pate and address the constitutional issues that they impli-
cate. From an outline of the content and scope of that
prof fered evidence, it is readily apparent that the evidence
is qualitatively superior to any sentencing study ever done,
and that it addresses all of the major factual issues that
this Court has suggested, or implied, might be important in
proving such claims, ll
A principal criticism of previous empirical studies
of capital sentencing was that they left "untouched countless
racially neutral variables," Smith v. Balkcom, 671 F.2d at
859, including the presence or absence of aggravating circum-
stances, mitigating circumstances, possible acquittals or
reductions to lesser charges. Id, at 860 n,33., This Court
has expressed skepticism about studies unless "the evidence
of disparate impact is so strong that the only permissible
11 The 1983 Baldus draft report was provided to Dr. Richard
Berk, a member of a select panel of the National Academy
of Sciences, which, during a two-year period, examined
virtually every major empirical sentencing study ever
undertaken and formulated criteria for the future con-
duct of sentencing research. He testified during the
McCleskey hearing that the Baldus studies are "far and
away the most complete" ever conducted, employing "state
of the art diagnostics" on data of extremely high
quality.
—- if)
inference is one of intentional discrimination." Adams Vv.
Wainwright, 709 F.2d 1443, 1449 (11th Cir. 1983).
Petitioner's proffer meets such standards. As the
annexed Appendix Al2 ghows, the Baldus studies, employing the
most careful and sophisticated methodology and drawing the
data from the State's own files, have uncovered significant
and persistent racial disparities. For example, if the
victim is white, the average likelihood of a defendant
receiving a death sentence increases by 10 points (.,10) on a
scale of 0 to 100, If the defendant is black, the average
likelihood of a death sentence increases by 7 pointe {07};
also on a scale of 0 to 100. Those statistics are signifi-
cant at the one-in-one thousand level (p = ,001) and one-in-
one hundred level (p = .0l1), respectively. Even when, for
each case, Professor Baldus simultaneously analyzed over 230
variables relating to statutory and nonstatutory aggravating
factors, mitigating factors, the facts of the crimes, and the
strength of the evidence, disparities statistically signifi-
cant at the one-in-one hundred level (p = .01) persisted in
both categories. The race of the victim is as powerful a
12 Appendix A comprises the excerpted Statement of Facts
from Petitioner's Post-Hearing Memorandum of Law in Sup-
port of His Claims of Arbitrariness and Racial Discrimi-
nation, filed September 26, 1983, in McCleskey v, Zant,
C-81-2434A (N,D, Ga.). That statement, prepared from
lawyers' notes prior to receipt of the transcript,
though devoid of extensive discussion of Baldus' statis-
tical evidence, is the only written gsscription of that
hearing.
“21g
determinant of sentencing outcome in Georgia as whether the
defendant had committed a prior capital felony, whether a
criminal offense was committed contemporaneously with the
homicide, or whether the victim was a police officer,
The Baldus studies, in sum, provide a thorough,
comprehensive portrait of Georgia's capital sentencing
system, and display strong and persistent evidence of linger-
ing racial discrimination, Before this Court determines
whether those facts establish a violation of the federal
constitution, it should permit petitioner to make a full
record in the District Court, and this Court should then
evaluate his claims on the basis of that record.
B. Standard of Review
Each of petitioner's federal claims requires the
Court to interpret or apply federal statutory provisions gov-
erning habeas corpus procedures and/or to reassess independ-
ently the application of federal constitutional principles to
record facts. See, e.g., Cuyler wv, Sullivan, 446 U.S. 335,
341-42 (1980); Jackson v. Virginia, 443 U.S. 307, 318 (1979),
SUMMARY OF ARGUMENT
Petitioner was unable to develop evidence in sup-
port of his federal constitutional claims that the death
penalty in Georgia is being administered in an arbitrary and
discriminatory pattern during state habeas proceedings in
1977, That failure was not due to procedural default or to
Ee La
the deliberate bypass of state proceedings. Rather, it
stemmed from petitioner's lack of funds, the absence of any
independent resources, the refusal of the state habeas courts
to provide any experts or financial assistance, and the fact
that the most compelling independent evidence was not then
available, Since 1977, however, material evidence directly
responsive to the Court's evidentiary criteria outlined in
smith v., Balkcom, 671 F.2d 858 (5th Cir, 1982) (on rehear-
ing), has become available, Petitioner proffered that evi-
dence to the District Court as soon as it was known. Under
the standards enunciated in Townsend v., Sain, 372 U.S. 293
(1963), and 28 U,S.C. § 2254(d), the District Court was obli-
gated to afford him an evidentiary hearing, especially since
the state courts had resolved those claims without careful or
extensive factual findings and under a serious misapprehen-
sion of the applicable constitutional principles.
Moreover, had there been serious doubts about
whether petitioner might have been able to present that evi-
dence at an earlier time absent inexcusable neglect, the
District Court should have explored those doubts at a sepa-
rate hearing. See Thomas v. Zant, 697 F.2d 977 (llth Cir.
1983), Petitioner's case should now be remanded under
Townsend and Thomas for a full evidentiary hearing.
If the Court is disposed to address the broader
factual or legal questions posed by petitioner's constitu-
“23
tional claims, it should do so only after a full factual
record is properly before it for review. Difficult constitu-
tional issues arising on a complex factual background ought
not be resolved until the relevant facts have been clearly
presented, Chastleton Corp, v, Sinclair, 264 U.S. 543, 548-49
(1924), especially "if there is a reasonable likelihood that
the production of evidence will make the answer to the [con-
stitutional] questions clearer.” Borden's Farm Products Co.
v., Baldwin, 293 U.S, 194, 213 (1934) (Stone and Cardozo, JJ.,
concurring opinion), If the Court does not immediately
remand this case for an evidentiary hearing, it should defer
any decision until resolution of McCleskey v. Zant, No, C-
81-2434A (N.,D, Ga.), the only case in which the relevant
facts have been developed on a full record.
| If the Court is, however, disposed to address the
legal merits of petitioner's claims, it should hold that in-
tentional discrimination in the imposition of capital sen-
tences based upon the race of the defendant or the race of
the victim violates the Equal Protection Clause of the Four-
teenth Amendment. Moreover, the Court should reaffirm its
prior holdings in Smith v, Balkcom, 671 F.2d 858 (5th Cir,
1982) (on rehearing), that statistical evidence of disparate
racial treatment can suffice to establish a violation of both
the Eighth and Fourteenth Amendments and of the Equal Protec-
tion Clause. Finally, it should modify the panel holding of
“2h eG
the Fifth Circuit in Spinkellink v. Wainwright, 578 F.2d 582
(5th Cir, 1978), cert. denied, 440 U.S. 976 (1979), and
recognize, in light of Furman v., Georgia, 408 U.S. 238
(1972), Godfrey v. Georgia, 446 U.S. 420 (1980), and Zant v.
Stephens, 456 U.S. 410, 413 (1982), that a capital statute
a. that, in practice, permits the capricious imposition of the
death penalty violates the Eighth Amendment.
STATEMENT OF JURISDICTION
This appeal is taken from an order and judgment
entered on April 1, 1983, in the United States District Court
for the Southern District of Georgia, Augusta Division, The
District Court granted a certificate of probable cause on
July 1, 1982, Jurisdiction of this Court lies pursuant to 28
U.85.C. § 2253,
I
PETITIONER IS ENTITLED UNDER TOWNSEND V, SAIN,
372 U.S. 293 (1963), AND 28 U.S.C. § 2254(4),
TO AN EVIDENTIARY HEARING ON HIS CLAIMS OF
ARBITRARINESS AND RACIAL DISCRIMINATION
Wo Whether a federal court must hold an evidentiary
hearing in federal habeas corpus proceedings is governed by
Townsend v. Sain, 372 U.S. 293 (1963), as subsequently codi-
fied, in large part, by 28 U,S.C, § 2254(d). In Townsend Vv,
Sain, the Supreme Court held that,
"a federal court must grant an evidentiary hearing
to a habeas applicant under the following circum-
stances: If (1) the merits of the factual dispute
were not resolved in the state hearing; (2) the
state factual determination is not fairly supported
WL
by the record as a whole; (3) the fact-finding pro-
cedure employed by the state court was not adequate
to afford a full and fair hearing; (4) there is a
substantial allegation of newly discovered evi-
dence; (5) the material facts were not adequately
developed at the state-court hearing; or (6) for
any reason it appears that the state trier of fact
did not afford the habeas applicant a full and fair
fact hearing.”
Townsend v, Sain, 372 U.S. at 313 (the numbered standards are
hereinafter referred to as "Townsend $13
On this record, petitioner's claims of systemwide
arbitrariness and racial discrimination in the application of
Georgia's capital statute meet virtually every branch of the
Townsend and § 2254(d) standards,
The factual merits of petitioner's claims were not,
and could not realistically have been, "resolved in the state
hearing” in 1977, see Townsend # (1); 28 U.S.C. § 2254 (d) (1),
since petitioner lacked the resources at that time to bring
the relevant facts before the state courts, Petitioner him-
self identified that problem at the outset of his state hear-
ing and formally moved for funds to gather the very evidence
necessary to resolve his claims. When the state court
declined his motion, petitioner made a good faith effort to
present all of the evidence at his disposal. The state
13 This Court has faithfully followed the teachings of
Townsend in its own subsequent decisions, See, e.9..,
Guice v. Fortenberry, 661 F.2d 496 (5th Cir, 1981) (en
banc); Thomas Vv. Zant, 697 F.2d 977 (llth Cir, 1982):
Coleman v. Zant, 708 F.2d 541 (llth Cir. 1983); cf, In
re Wainwright, 678 F.2d 951 (llth Cir. 1982),
Vif le
court, however, observing that the three studies proffered by
petitioner related to the pre-Furman period in Georgia, found
them irrelevant, Thus no body of facts on the application of
Georgia's capital statutes in the post-Furman period was ever
considered by the state court, l4
Petitioner has also shown that state fact-finding
® procedures were "not adequate to afford a full and fair hear-
ing," see Townsend # (3); 28 U.S.C. § 2254(d) (2), since he,
though an indigent, was denied funds to develop the evidence
necessary to prove his claims, The proper inquiry under this
branch of Townsend and § 2254(d) is, of course, not whether
the State proceedings are blameworthy or constitutionally
inadequate, but only whether they were "adequate to afford a
full , . . hearing" in the case before the federal court, ld
14 As a legal matter, we believe that evidence of pre-Furman
discrimination is clearly relevant to petitioner's claims,
because it demonstrates a pattern of prior behavior that can
shed useful light on present conduct. See, e.g9.,, Rogers v,
Lodge, 458 U,S. 613, 102 Ss, Ct, 3272 (1982); Village of
Arlington Heights wv. Metropolitan Housing Development Corp.,
429 U,S, 252, 266-68 (1977). However, we readily acknowledge
> that pre-Furman studies alone cannot be dispositive of claims
Ww of discrimination or arbitrariness under Georgia's revised
statutes,
15 For example, in Gibson v, Jackson, 578 F.2d 1045 (5th
Cir. 1978), cert, denied, 439 U.S, 1119 (1979), the
Fifth Circuit abstained from deciding whether the
Constitution requires financial assistance to an
indigent capital inmate in state habeas proceedings,
However, citing Townsend v, Sain, Judge Rubin noted
that, as a federal statutory matter under 28 U.S.C,
§ 2254, "[i]f the failure to provide counsel or other
assistance results in less than a full and fair state
(footnote continued)
- 07.
Because sebltlioner was unable to bring forward the critical
evidence on his claims and the State chose not to assist him,
it is clear that the procedures were not adequate to ensure a
full hearing,
Perhaps the most clearly applicable of the Townsend
and § 2254(d) standards are those requiring a hearing when-
ever there is a "substantial allegation of newly discovered
evidence," Townsend # (4), or when "the material facts were
not adequately developed at the state-court hearing,”
Townsend # (5); 28 U.S.C. § 2254(d)(3). Here, there is more
than a "substantial allegation™ of new evidence: no post-
Furman evidence was available to petitioner at all in 1977.
Yet, now there exist two comprehensive, meticulous studies
that have already been the subject of a two-week federal
evidentiary hearing in another Georgia case,
The new evidence is, furthermore, "newly discov-
ered" within any fair sense of that term. The data comes
from the file of State -- the Georgia Department of Offender
Rehabilitation, the Georgia Board of Pardons and Paroles, and
the Georgia Supreme Court -- which were not then, and are not
now, generally available, Professor Baldus was first given
access to those files, as a social science researcher, in
(footnote continued from previous page)
court proceeding, petitioner will be entitled to an
evidentiary hearing de novo in federal court" Gibson v,
Jackson, 578 F.2d at 1052 (Rubin, J., addendum),
iQ
1979, two years after completion of petitioner's state habeas
proceedings,
Even if petitioner had somehow been able to gain
access to these closed files, access alone would have been
useless to him in proving his claims without the hundreds of
thousands of dollars necessary to read through each file on
each case, extract from those files several hundred items of
data for each case, compile and transform that data into com-
puter-readable form, and perform the complex and extensive
computer analyses that alone could render it probative as
evidence, In short, the evidence in 1977 was not only una-
vailable to petitioner, it did not exist in its present usa-
ble form at all, Only several years of time and effort by
Professor Baldus and his colleagues, working independently of
petitioner, transformed state records, drawn from three sep-
arate sources, {ato the studies petitioner now stands ready
to present to the courts,
To evalute whether the material facts were "ade-
quately developed" under Townsend # 5 and § 2254(d) (3), pe-
titioner must show that a fact was material and "that failure
to develop that material fact at the state proceeding was not
attributable to petitioner's inexcusable neglect or deliber-
ate bypass." Thomas v. Zant, 697 F.2d 977, 986 (llth Cir.
1983); accord Coleman v., Zant, 708 F,2d at 545-48,
“00
The "materiality" of petitioner's evidence is read-
ily apparent, since the facts proffered here constitute the
only statistical evidence of how Georgia has been applying
its statutes since Furman. If such statistical evidence is
probative of petitioner's claims (see Point III(b), infra),
then this massive body of evidence is surely "crucial to a
fair, rounded development of the material facts."
Furthermore, there has been no serious indication
that petitioner was "inexcusably neglectful" in failing to
adduce that proof in 1977, much less that he deliberately
bypassed the opportunity to do so. As we have shown, the
evidence was beyond the means of petitioner in 1977. He
nevertheless timely asserted the underlying constitutional
claims, called the state court's attention to the need for
further factual investigation, and sought necessary as-
sistance for that task, a request that was refused. The
panel accurately observed that,
"any suggestion of strategic default is flatly con-
tradicted by the fact that Dr, Baldus had not even
begun to gather his data until after Spencer's
state habeas proceedings had run their course
+ ++ 4 Other than his failure to obtain Dr,
Baldus's data at an earlier time, the district
court pointed to no other evidence to suggest
deliberate bypass. The district court acknowledged
as much in its discussion. 538 F. Supp. at 89
n.10, Therefore, we conclude that the record does
not support a finding of deliberate bypass."
Spencer v, Zant, 715 F.2d at 1580, The state has never
seriously argued to the contrary.
- 30 -
.
Nor has there been any suggestion that Professor
Baldus' work was not brought to the District Court's atten-
tion at the earliest opportunity. His studies, as the panel
noted, were, in April 1982, "not then available except by
live testimony.” Spencer v, Zant, 715 F.2d at 1582, Those
studies had not been mentioned or proffered in any other
forum -- federal or state —-- prior to petitioner's proffer of
them to the District Court in late April 1982.16
Nevertheless, the District Court, guided by a nar-
row or misinformed view of Spinkellink v, Wainwright, held
that even if petitioner's evidence "would show that sentenc-
ing patterns under the new statute still reveal glaring dis-
parities in the imposition of the death penalty based upon
race . .» » [such an allegation, though] sad and distressing,
[would] . . . not alone show any infirmity in a statute
otherwise found to be acceptable under the Constitution.”
16 As indicated earlier, the most preliminary written
report concerning the Baldus findings was not filed in
any Court until June 1982, Smith v, Balkcom, No. 5588
(Super. Ct, Butts Co.,, Ga,, June 25, 1982), and
McCleskey v. Zant, No, C-81-2434A (N.D, Ga.) (Supplement
to Rule 59 motion filed June 25, 1982),
The specific proffer made by petitioner in this case,
however, informed the District Court that the Baldus
data would control for the very factors -- aggravating
circumstances, mitigating circumstances, stage of the
criminal justice process -- that this Court had identi-
fied as important in Smith v., Balkcom, in its opinion on.
rehearing. In his proffer petitioner explicitly di-
‘rected the District Court to Smith, which had been de-
cided less than one month earlier,
Ms ha
Unaided by this Court's clarifying opinion on rehearing in
Smith (which was announced only two days before its own opin-
ion), the District Court foreclosed petitioner's right to a
hearing as a matter of law. The panel, recognizing that
Spinkellink did not control the ultimate issue, applied
well-established Townsend and § 2254(d) principles in direct-
ing that petitioner's hearing should take place. The full
Court should now adopt that course and permit petitioner an
opportunity to prove his federal claims,
IY
THIS COURT SHOULD DECLINE TO RESOLVE
EITHER THE FACTUAL OR THE LEGAL MERITS
OF PETITIONER'S CLAIMS ON A BARREN RECORD
A remand to the District Court for an evidentiary
hearing is not only appropriate under Townsend v., Sain and
§ 2254(d); it will provide this Court with the only adequate
foundation upon which eventually to resolve the substance of
petitioner's constitutional claims. The present record con-
tains no statistical evidence, and little other substantial
evidence, to indicate how Georgia has applied its capital
statutes since 1973. Whether, as petitioner has alleged,
those statutes continue to operate in a discriminatory pat-
tern, as did the statutes struck down in Furman v, Georgia,
408 U.S. 238 (1972), has thus yet to be examined in the nec-
essary adversary context, The Court should not prematurely
grapple with difficult constitutional questions and make
A pan
binding legal pronouncements until the evidentiary context in
which they arise has become clear,l’
Two important principles counsel this approach,
The first is that courts ought "not to entertain constitu-
tional questions in advance of the strictest necessity."
Parker v. Los Angeles County, 338 U.S, 327, 333 (1949);
accord Wilshire 0il Co, v. United States, 295 U.S, 100
(1935); Liverpool, New York & Philadelphia Steamship Co, Vv,
Commissioners of Emigration, 113 U.S, 33, 39 (1885).
The second is that "the facts [relevant to both the
interpretation and the application of constitutional guaran-
tees] should be accurately ascertained and carefully weighed"
before the constitutional issues are finally determined.
Chastleton Corp, v. Sinclair, 264 U,S. 543, 549 (1924),
Expert testimony and empirical data have played a significant
part in the development of constitutional law, see, e.9., San
17 "The fact that it would be convenient for the parties
: and the public to have [a legal question] promptly de-
ww cided," Justice Brandeis cautioned, cannot justify a
- federal court in reaching out prematurely to determine
it, Ashwander v., Tennessee Valley Authority, 297 U.S,
288, 345 (1936) (Brandeis, J., concurring). Gomillion
v. Lightfoot, 364 U,S. 339 (1960), for example, was not
decided solely on abstract Fourteenth Amendment princi-
ples, but on the Court's encounter with an "uncouth,
twenty-eight-sided figure," id, at 340, that constituted
the legislatively redrawn boundaries of Tuskegee, Ala-
_ bama. Likewise, the constitutional holding in Yick Wo
v, Hopkins, 118 U.S. 356 (1886), was the child of a
Court familiar not only with equal protection principles
but with statistical details on selective enforcement of
San Francisco's law governing laundry construction
standards,
“33
Antonio Independent School District v, Rodriguez, 411 U.S. 1,
23-25 (1973); Brown v. Board of Education, 347 U.S. 483, 484
n.,11l (1954); Alabama State Federation of Labor v. McAdory,
325 U.S. 450, 460-461 (1945). Yet "[jludges make constitu-
tional law as they make other kinds of law, on the basis of
facts proved and assumed, They are likely to do a better job
when their assumptions rest on information rather than
hunch." Darst, Legislative Facts in Constitutional Litiga-
tion, Sup. Ct. Rev, 75 (1960); see also Bikle, Judicial
Determination of Questions of Fact Affecting the Constitu-
tional Validity of Legislative Action, 38 Harv, L. Rev, 6
(1942),
In this case, where the factual evidence is exten-
sive and sophisticated, where there is little by way of com-
parable prior evidence or legal precedent to guide the
Court's judgment, where the operation of Georgia's capital
system as a whole may be implicated, and, where, as a prac-
tical matter, an adequate factual foundation has already been
developed in another capital case soon to come before the
Court, the temptation to address the broader factual or legal
issues now, on the present record, should be avoided.
If the Court wishes to use this case to resolve
those broader issues, it could readily do so by deferring
decision until the District Court rules in McCleskey v., Zant,
and by consolidating the inevitable appeal in that case with
AAT
Spencer, Alternatively, the Court could obtain a factual
record on which to base its deliberations by expanding peti-
tioner's record on appeal, pursuant to Rule 7 of the Rules
Governing Section 2254 Cases and Rule 10(e) of the Federal
Rules of Appellate Procedure, see, e.g9., Dickerson v,
Alabama, 667 F.2d 1364, 1367 (llth Cir.), cert. denied, 103
S. Ct. 173 (1982), to include the transcript and exhibits
from McCleskey v. Zant, Although deferral is by far prefer-
able to expansion of the record under Rule 10(e), either of
these alternative courses would constitute, we submit, a far
better approach than reaching constitutional issues on the
basis of the present record.
I1I
IF THIS COURT CHOOSES TO REACH THE BROADER LEGAL
ISSUES ON THE PRESENT RECORD, IT SHOULD HOLD:
(i) THAT SYSTEMATIC DISCRIMINATION IN CAPITAL SEN-
TENCING BASED UPON EITHER THE RACE OF THE DEFENDANT
OR THE RACE OF THE VICTIM VIOLATES THE FOURTEENTH
AMENDMENT; (ii) THAT BOTH ARBITRARINESS UNDER THE
EIGHTH AMENDMENT AND INTENTIONAL DISCRIMINATION
UNDER THE FOURTEENTH AMENDMENT MAY BE PROVEN BY
STATISTICAL EVIDENCE; AND (iii) THAT ARBITRARY OR
DISCRIMINATORY IMPOSITION OF CAPITAL STATUTES
VIOLATES THE EIGHTH AMENDMENT
Because the Court has indicated that it may con-
sider the merits of petitioner's constitutional claims, we
will briefly set forth our position on several of the most
important issues,
~ 3rd
A. Systematic Discrimination in Capital
Sentencing Based Upon the Race of the
Defendant or the Race of the Victim
Violates the Fourteenth Amendment
The unequal enforcement of criminal statutes based
on the race of the defendant violates the Fourteenth Amend-
ment, because such distinctions would have "no legitimate
overriding purpose independent of invidious racial discrimi-
nation , . . [justifying the] classification," Loving v,
Virginia, 388 U.S. 1, 11 (1967); Yick Wo v, Hopkins, 118 U,S.
356 (1886); cf, Furman v, Georgia, 408 U.S, 238, 242-57
(1972) (Douglas, J. concurring).
| Petitioner has proffered evidence establishing that
the application of Georgia's capital statutes have resulted
in inequality in Georgia's treatment of black offenders,
More compelling, however, is the proffered evidence of
capital decisionmaking with a different focus: the race of
the victim, Discrimination based upon the victim's race,
similar to discrimination based on the defendant's race,
violates the Equal Protection Clause, under at least three
different lines of Fourteenth Amendment authority.
1s The Historical Purpose of the Amendment
The language and legislative history of the Equal
Protection Clause show that its framers specifically intended
it to prohibit the unequal administration of state criminal
laws based upon the race of the victim. Indeed, the text of
- 36
the clause providing "nor shall any state deprive any person
within its jurisdiction of the Equal Protection of the law,"
speaks more directly to the imposition of criminal sanctions
than to any other form of discrimination,
The framers of the Fourteenth Amendment ungquestion-
ably intended to proscribe differential punishment based on
the race of the victim, Prior to the Civil War, statutes
regularly punished crimes less severely when the victim was a
black parson ot a slave, After the war and immediately
preceding the enactment of the Fourteenth Amendment, Southern
authorities frequently declined to administer their statutes
to prosecute persons who committed criminal acts against
blacks.l8 In those cases that were prosecuted, authorities
18 See, e.9., Report of the Joint Committee on Reconstruc-
tion, at the First Session, Thirty-Ninth Congress, Part
II, at 25 (1866) (testimony of George Tucker, common-
wealth attorney) (The southern people "have not any idea
of prosecuting white men for offenses against colored
people; they do not appreciate the idea."); id. at 209
(testimony of Lt. Col. Dexter Clapp) ("Of the thousand
cases of murder, robbery, and maltreatment of freedmen
that have come before me, » . » I have never yet known a
single case in which the local authorities or police or
citizens made any attempt or exhibited any inclination
to redress any of these wrongs or to protect such per-
sons,"); id. at 213 (testimony of Lt. Col. J. Campbell)
("There was a case reported in Pitt County of a man
named Carson who murdered a negro, There was also a
case reported to me of a man named Cooley who murdered a
negro near Goldsborough, Neither of these men has been
tried or arrested.").
wii37
acquitted or accorded disproportionately light sentences to
persons who were guilty of crimes against blacks,19
The congressional hearings and debates that led to
the enactment of the Fourteenth Amendment are replete with
references to this pervasive discrimination, and the Amend-
ment and the statutes enforcing it were intended, in part, to
stop it. See General Building Contractors Association, Inc.
v, Pennsylvania, 102 S. Ct, 3141, 3146-49 (1982). The
Supreme Court has recently confirmed this truth: "[i]t is
clear from the legislative debates that, in the view of the
» » » sponsors [of the Ku Klux Klan Act of 1871], the victims
of Klan outrages were deprived 'equal protection of the laws’
if the perpetrators systematically went unpunished," Briscoe
v, Lahue, 103 8S, Ct, 1108, 1117 (1983), The proffered evi-
dence in this case plainly demonstrates a violation of those
Equal Protection Clause objectives,
39 See, €,93:, id,, Part 111, at 141 (testimony of Brevet
M.J. Gen, Wagner Swayne) ("I have not known, after six
months' residence at the capital of the State, a single
instance of a white man being convicted and hung [sic]
or sent to the penitentiary for crime against a negro,
while many cases of crime warranting such punishment
have been reported to me,"); id., Part IV, at 76-76
(testimony of Maj. Gen, George Custer) ("I believe a
white man has never been hung [sic] for murder in Texas,
although it is the law. Cases have occurred of white
men meeting freedmen they never saw before, and murder-
ing them merely from this feeling of hostility to them
as a class.").,
3G
2, Traditional Equal Protection Principles
Even without reference to the Amendment's history,
race-of-victim sentencing disparities violate long-recognized
equal protection principles that have been applied to all
areas of state action. Absent a rational explanation for
subjecting one to harsher treatment than another, any dispa-
rate treatment of different groups at the hands of the state
renders the operation of a law unconstitutional. See United
States Department of Agriculture v, Moreno, 413 U.S. 528
(1973); F.S. Royster Guano Co, v, Virginia, 253 U.S. 412
(1920).
Moreover, under well-established equal protection
doctrine, even a "rational" explanation would not suffice to
protect the state action proven here, since petitioner's
claim involves racial discrimination that impinges upon the
right to life, a right explicitly guaranteed by the Four-
teenth Amendment and inherent in the constitutional frame-
work , 20
20 See, e.9., May v. Anderson, 345 U.S. 528, 533 (1953) (a
right "far more precious , , , than property rights");
Screws v, United States, 325 U.S. 91, 131-32 (1945)
(Rutledge, J., concurring); id, at 134-35 (Murphy, J..,
dissenting) ("He has been deprived of the right to life
itself, . » » That right was his because he was an
American citizen, because he was a human being. As
such, he was entitled to all the respect and fair treat-
ment that befits the dignity of man, a dignity that is
recognized and guaranteed by the Constitution."):;
Johnson v, Zerbst, 304 U.S. 458, 462 (1938) ("fundament-
al human rights of life and liberty"); Yick Wo v.
(footnote continued)
“30
pr
»
The Supreme Court has made it clear that where
either (i) "fundamental rights," such as the right to life,
or (ii) "suspect classifications," such as race are involved,
discriminatory state action "may be justified only by a 'com-
pelling state interest' . . . and . . .» legislative enact-
ments must be narrowly drawn to express only the legitimate
state interests at stake." Roe v, Wade, 410 U,S., 113, 155
(1973); see also Cleveland Board of Education v., LaFleur, 414
U.S. 632 (1974); Stanley v. Illinois, 405 U.S, 645 (1972).
The "fundamental rights" concept originated in
Skinner v. Oklahoma, 316 U.S. 535 (1942), a case involving
the Oklahoma Legislature's imposition of a punishment of
sterilization upon those convicted of certain crimes. Ad-
dressing the Oklahoma statute, which made sterilization a
permissible sentence after a third felony conviction, while
at the same time exempting certain kinds of felonies (such as
financial crimes) from its reach, the Court held that,
strict scrutiny of the classifications which a
State makes in a sterilization law is essential,
lest unwittingly or otherwise invidious discrimina-
tions are made against groups or types of individ-
uals in violation of the constitutional guaranty of
just and equal laws . ., . Where the law lays an
unequal hand on those who have committed intrinsic-
ally the same quality of offense and sterilizes one
and not the other, it has made as invidious a dis-
(footnote continued from previous page)
Hopkins, 118 U.S. 356, 370 (1886) ("the fundamental
rights to life, liberty and the pursuit of happiness”).
REE) gn
. \
crimination as if it had selected a particular race
or nationality for oppressive treatment.
Id. at 541,
Skinner thus teaches that only a compelling state
interest could justify a sentencing statute that conditions
fundamental rights in a discriminatory manner, and that the
Equal Protection Clause proscribes arbitrary lines among
victims no less than arbitrary lines among defendants,
Certainly a principle that protects, absent a compelling
state interest, the right to procreate applies when the
stakes are life and death and when the state action destroys
not just one right, but all rights.?21
Moreover, the discrimination in imposition of
Georgia's capital statutes does not merely affect the "funda-
mental right" to life, but employs the paradigm "suspect
21 "[B]ecause there is a qualitative difference between
death and any other permissible form of punishment,
'there is a corresponding difference in the need for re-
liability in the determination that death is the appro-
- priate punishment in a specific case,'"™ Zant v,
Stephens, 103 8, Ct, 2733, 2747 (1982) (citing Woodson
v. North Carolina, 428 U.S. 280, 305 (1976)); see, €.d.,
Reid v. Covert, 354 U.S, 1, 77 (1937) (capital cases
"stand on quite a different footing than other offenses,
In such cases the law is especially sensitive to demands
for , , a» procedural fairness ., + + +"); Williams v,.
Georgia, 349 U.S. 375, 391 (1955) ("That life is at
stake is of course another important factor in creating
the extraordinary situation, The difference between
capital and non-capital offenses is the basis of differ-
entiation in law in diverse ways in which the distinc-
tion becomes relevant"); see also McGautha v, Califor-
nia, 402 U.S, 183, 311 (1971) (Brennan, J., dissenting):
Criffin v, Illinois, 351 U.8, 12, 28 (1936),
AT
classification," that of race, Racial classifications are
"subjected to the strictest scrutiny and are justifiable only
by the weightiest of considerations." Washington v, Davis,
426 U.S, 229, 242 (1976) (citing McLaughlin v., Florida, 379
U.S. 184 (1964)). No discriminatory state action is more
suspect in the administration of justice than racial dis-
crimination, Those inequalities "not only violate our
Constitution and the laws enacted under it, but [are] at war
with our basic concepts of a democratic society and a repre-
sentative government," Smith v, Texas, 311 U.S. 128, 130
(1940) (footnote omitted); see also Ballard v. United States,
329 U.S. 187, 195 (1946). "Discrimination on the basis of
race, odious in all aspects, is especially pernicious in the
administration of justice," Rose v., Mitchell, 443 U.S. 545,
555 (1979), since it destroys "the appearance of justice" and
casts doubt on "the integrity of the judicial process," id.
at 55-56,
Under any level of Fourteenth Amendment scrutiny,
the discrimination proferred here cannot be defended. No
justification is possible for racial discrimination against
black victims and in favor of white victims in capital sen-
tencing. Certainly, the theoretical goals of retribution and
deterrence, see Gregg v. Georgia, 428 U.S, 153, 183-84 (1976)
(plurality opinion), are not served by distinctions based
fy Ta
upon race, On the contrary, any possible legitimate goal is
undermined by its pursuit in a racially determined manner.
No law could survive Equal Protection scrutiny if
it permitted those who murder black victims to receive no
greater than life sentences, while allowing those who murder
white victims to receive sentences of death. Capital sen-
tencing patterns based upon distinctions in the race of the
victim thus violate the Equal Protection Clause for reasons
wholly separate from, and in addition to, the fact that such
state action was prohibited by the framers of the Fourteenth
Amendment. Such patterns constitute an irrational exercise
of governmental power in its most extreme form, impinging
upon defendants' fundamental rights by creating illegitimate
distinctions along racial lines without any compelling state
interest,
3. Race As An Aggravating Circumstance
In the context of Georgia law, a showing of race-
of-victim discrimination implicates an additional Fourteenth
Amendment principle as well: the prohibition of explicitly
race-conscious legislation, See, e.dg,, Loving v,., Virginia,
388 U.S, 1 (1967); Strauder v, West Virginia, 100 U.S. 303
(1880), The Supreme Court held in Zant v., Stephens, 103 S,
Ct, 2733 (1983), that it would be unconstitutional, in an
otherwise valid sentencing system, to:
attac[h] the "aggravating" label to factors that
are constitutionally impermissible or totally ir-
-d3
relevant to the sentencing process, such as for
example the race, religion, or political affilia-
tion of the defendant. . » . If the aggravating
circumstance at issue in this case had been invalid
for reasons such as these, due process of law
should require that the jury's decision to impose
death be set aside.
103 Ss. Ct, at 2747, Yet, in a real sense, that is precisely
what the State of Georgia has authorized and what the prof-
fered evidence shows Georgia juries and prosecutors have in
practice done: "attached the aggravating label" to the race
of the defendant and of the victim,
On all three of the above-stated grounds, evidence
of discrimination based on the race of the defendants and the
race of the victim, if proven, would establish a violation of
the Fourteenth Amendment,
B. Intentional Discrimination Under
The Fourteenth Amendment May Be
Proven By Statistical Evidence
This Circuit has previously held that an equal pro-
tection challenge to the administration of capital sentencing
statutes may be supported by statistical evidence of dispro-
portionate impact that gives rise to the inference of dis-
criminatory intent on the part of decisionmakers. See Smith
v., Balkcom, 671 F.2d at 868. The holding in Smith is fully
consistent with equal protection law in other areas:
[D]iscriminatory intent need not be proven by di-
rect evidence. "Necessarily, an invidious dis-
criminatory purpose may often be inferred from the
totality of the relevant facts, including the fact,
if it is true, that the law bears more heavily on
one race than another," [Citing Washington v.
-iAN
Davis, 426 U,S, 229 (1976)]. Thus determining the
existence of discriminatory purpose "demands a sen-
sitive inquiry into such circumstantial and direct
evidence of intent as may be available." [Citing
Village of Arlington Heights v, Metropolitan
Housing Authority, 429 U.S. 252 (1977).]
Rogers v., Lodge, 102 Ss, Ct, 3272, 3276 (1982),
Cases in which race is not an overt criterion, but
in which the record leaves race as the only plausible expla-
nation for the demonstrated inequities, nearly always turn on
circumstantial proof. See, e.g.,, Williams v. Dekalb County,
582 F.2d 2, 3 (5th Cir, 1978) (en banc) (statistics may be
used to prove discrimination under 42 U,S.C. § 1981, which
requires same burden of proof as the Fourteenth Amendment).
That principle has been recognized since Yick Wo v. Hopkins,
118 U.S, 356 (1886), when the Supreme Court found discrimina-
tion on the basis of statistical proof. This Court held in
Searcy v. Williams, 656 F.2d 1003 (5th Cir. 1981), aff'd sub
nom., Hightower v., Searcy, 455 U,S, 984 (1982):
Turner v, Fouche, [396 U.S, 346 (1970)] and Yick Wo
v. Hopkins, [118 U,S. 356 (1886)] represent a line
of cases in which statutes challenged as unconsti-
tutional are constitutional in apparent purpose,
but utilized in a manner to discriminate against a
certain segment of the population. See L., Tribe,
American Constitutional Law, Section 16-18, p. 1028
(1978). In these cases the fatal discriminatory
purpose is inferred from the overwhelmingly con-
vincing statistical evidence of unexplained dis-
parity. See also Castaneda v, Partida, 430 U.S.
482 , , . (1977). The challenged application of
the statute often involves discretion or subjective
criteria utilized at a crucial point in the
decision-making process, For example, in Yick Wo
v., Hopkins the board of supervisors exercised
absolute discretion in granting exceptions, and the
jury commission in Turner v, Fouche applied sub-
jective criteria to create the jury list from which
AT
grand jury members were chosen, These cases, al-
though not entirely on point with the present case,
are relevant to our inquiry because the statute in
the present case, based on overwhelming convincing
statistics, has been discriminatorily applied
* * * »
656 F.2d at 1007-08 (footnote omitted); see also Internation-
al Brotherhood of Teamsters v, United States, 431 U,S. 324,
339-40 (1977) ("statistical analyses have served and will
continue to serve an important role" in cases in which the
existence of purposeful discrimination is at issue). Those
principles, of course, remain the law,22
22 In his dissenting opinion in Stephens v. Kemp, No, A-455
(U.S. Dec, 13, 1983) (order in pending case), Justice
Powell noted that
if the Baldus study is similar to the several
studies filed with us in the Sullivan case, the
statistics in studies of this kind dating as far
back as 1948 are merely general statistical surveys
that are hardly particularized with respect to any
alleged 'intentional' racial discrimination, Sure-
ly no contention can be made that the entire Geor-
gia judicial system, at all levels, operates to
discriminate in all cases. Arguments to this ef-
fect may have been directed to the type of statutes
addressed in Furman v., Georgia, 408 U.S. 238
(1972), As our subsequent cases make clear, such
arguments cannot be taken seriously under statutes
approved in Gregg.
Id., slip op. at 6 n,2 (Powell, J., dissenting).
We do not read Justice Powell in Stephens to controvert
the numerous prior holdings of the Supreme Court that
statistics may be used to provide proof of intentional
discrimination, but rather to express his impression
that the Baldus studies had not been profferred for the
purpose of proving intent, That is precisely the pur-
(footnote continued)
By a
The Supreme Court has readily applied that analy-
sis, for example, in the jury cases, another area in which a
showing of discriminatory impact is the only practical --
indeed usually the only possible -- evidentiary means of
demonstrating an equal protection violation:
a It is also clear from the cases dealing with racial
discrimination in the selection of juries that the
systematic exclusion of Negroes is itself such an
"unequal application of the law . . . as to show
intentional discrimination." [citation omit-
ted]. » » «+ It is also not infrequently true that
the discriminatory impact -- in the jury cases for
example, the total or seriously disproportionate
exclusion of Negroes from jury venires -- may for
all practical purposes demonstrate unconstitution-
ality because in various circumstances the discrim-
ination is very difficult to explain on nonracial
grounds,
Washington v. Davis, 426 U.S. 229, 241-42 (1976).
Inquiry into the results arising from a statute's
operation is critical, especially where the governmental
action involves complex processes, in which numerous influ-
ences are at work. Thus,
[flrequently the most probative evidence of intent
will be objective evidence of what actually hap-
pened rather than evidence describing the subjec-
tive state of the mind of the actor. For normally
the actor is presumed to have intended the conse-
quences of his deeds, This is particularly true in
the case of governmental action which is frequently
%
/4
(footnote continued from previous page)
pose, however, for which petitioner Spencer proffers
those studies as part of his Equal Protection claim in
thise case... Justice Powell's initial skepticism that
Georgia's post-Furman statutes could work to permit such
a result does not, of course, preclude petitioner, armed
with the Baldus studies, from offering substantive evi-
dence to the contrary.
“AT
*reun
the product of compromise, of collective decision-
making, and of mixed emotion.
Washington v., Davis, 426 U.S, at 253 (Stevens, J., concur-
ring), As the Court asserted in assessing an equal protec-
tion challenge to school board procedures analogous to peti-
tioner's challenge here: "The most effective way to deter-
mine whether a body intended to discriminate is to look at
what it has done," United States v. Texas Education Agency,
579 F.2d 910, 914 (5th Cir, 1978), cert, denied, 443 U,S, 915
(1979).
The role of circumstantial evidence -- such as
statistical proof -- is particularly crucial in cases such as
this that involve a multitude of decision-makers. In such
cases the evidence need not identify an intentional discrimi-
natory act or malevolent actor. See Jurek v., Estelle, 593
F.2d 672, 685 n,26 (5th Cir. 1979), vacated and reaffirmed on
other grounds, 623 F,2d 929 (5th Cir, 1980) (en banc), cert,
denied, 450 U,S., 1001 (1981); United States v., Texas
Education Agency, 579 F.2d 910, 913-14 & nn.5-7 (5th Cir,
1978), cert, denied, 443 U.S. 915 1979,
The presence of numerous decisionmakers in the jury
cases and the school board cases has appropriately triggered
judicial reliance upon circumstantial evidence as the most
appropriate proof of discriminatory intent, Castaneda Vv.
Partida, 430 U.S, 482 (1977) (jury selection); Penick v,
- 48 =
Columbus Board of Education, 583 F.2d 787 (6th Cir. 1978),
aff'd, 443 U.S. 449 (1979) (school desegregation); United
States v. Texas Education Agency, 579 F.2d 910 (5th Cir,
1978), cert, denied, 443 U,S. 915 (1979) (school
desegregation).
The reliance upon statistical evidence for a show-
ing of "discriminatory intent" turns on the discretionary
nature of the governmental procedures at work. In Yick Wo,
the Supreme Court emphasized that the ordinance at issue
there
conferred], not a discretion to be exercised upon
a consideration of the circumstances of each case,
but a naked and arbitrary power to give or withhold
consent , . . as to persons, » » » The power given
[to the decisionmakers] is not confided to their
discretion in the legal sense of that term, but is
granted to their mere will, It is purely arbi-
trary, and acknowledges neither guidance nor
restraint.
Yick Wo v., Hopkins, 118 U.S. at 366-67, Equal protection
violations based on statistical showings, which fall short of
the extreme pattern demonstrated in Yick Wo, were condemned
in the jury cases precisely "[b]ecause of the nature of the
jury-selection task," Village of Arlington Heights v, Metro-
politan Housing Development Corp,, 429 U.S, at 266 n,1l3
(1977). That task rests on a subjective process that
presents at every juncture "the opportunity to discriminate"
such that "whether or not it was the conscious decision on
the part of any individual jury commissioner," the courts
- AQ -
aN
have been confident, when presented with a showing of dispar-
ate impact, in concluding that "[t]he result bespeaks dis-
crimination," Alexander v, Louisiana, 405 U.S. 625, 632
(1972); see also Hernandez v, Texas, 347 U.S. 475, 482
(1954); Norris v, Alabama, 294 U.S. 587, 591 (19357. "[A]
selection procedure that is susceptible of abuse or is not
racially neutral supports the presumption of discrimination
raised by the statistical showing," Castaneda v. Partida, 430
U.S, 482, 494 (1977) (citing Washington v, Davis, 426 U.S. at
241),
Since the sentencing system in Georgia involves a
multitude of decisionmakers, each with substantial discre-
tion23 and each involved in a governmental process that has
the severest impact on individual life and liberty, the
required prima facie showing of discriminatory intent is
satisfied by significant statistical disparities resulting
23 Petitioner recognizes that the Supreme Court in Zant v,
Stephens, 103 S, Ct, 2733 (1983), held that the discre-
tion permitted by the Georgia death penalty statutes did
not render them unconstitutional on their face under
Furman v, Georgia, 408 U,S. 238 (1972), But that clear-
ly does not mean that the substantial discretion granted
by those statutes to prosecutors and to juries is ir-
relevant to the discrimination claim here, The Court,
in Castaneda v, Partida, 430 U.S, 482 (1977), similarly
noted that "[tlhe facial constitutionality of the key-
man system, of course, has been accepted by this
Court. + » » Nevertheless, the Court , , , noted that
the system is susceptible to abuse as applied," 430 U.S.
at 497, and held that its discretionary nature supported
a finding of discrimination, id. at 494; see also Yick
Wo v. Hopkins, 118 U.S. 356 (1836),
-. 80 -
from the discretionary process, That is precisely the
evidence petitioner has proffered,
C, Arbitrary or Discriminatory Imposition of
Capital Statutes Violates the Eighth Amendment
The fundamental teaching of Furman v., Georgia, 408
U.S. 238 (1972) -- which struck down, not simply the death
sentence of William Henry Furman but the capital statutes of
Georgia, Texas, and, by implication, all other states -- was
that "the Eighth and Fourteenth Amendments cannot tolerate
the infliction of a sentence of death under legal systems
that permit this unique penalty to be , , . wantonly and
+ » » freakishly imposed," Furman v, Georgia, 408 U.S. at 310
(Stewart, J., concurring). That teaching has been consist-
ently adhered to by the Supreme Court in its subsequent
capital decisions, See, e.g,, Zant v., Stephens, 456 U.S,
410, 413 (1982); Godfrey v., Georgia, 446 U.S. 420, 427
(1980); Coker v., Georgia, 433 U.S. 584, 593-97 (1977); Gregg
v. Georgia, 428 U.S. 153, 188-89 (1976). |
In 1978, however, the Fifth Circuit, in Spinkellink
v. Wainwright, 578 F.2d at 599-605, read the Supreme Court's
opinion in Proffitt v, Florida, 428 U.S. 242 (1976), to
preclude, as a matter of law, any Eighth Amendment challenge
to Florida's application of its capital statutes. "If a
state has . . » a properly drawn statute," the Spinkellink
panel reasoned, "then the arbitrariness and capriciousness
- BY iw
condemned in Furman have been conclusively removed." Id. at
605,24
Yet there is no constitutional logic that could
forbid capital procedures because of their likelihood to pro-
duce a particular result, unless the result itself is forbid-
den by the Constitution, And if the result of arbitrary and
discriminatory infliction of the death penalty is forbidden
by the Eighth and Fourteenth Amendments -- as Furman, Gregg,
Proffitt and Jurek all declared -- then there can be no logic
at all in denying petitioner the opportunity to prove that
the revised procedures employed in Georgia, however well-
intentioned, are actually producing that result. The exis-
tence of the statutory procedures that the Supreme Court
sustained "[o]ln their face" in Gregg cannot support such a
refusal to hear relevant evidence, for as Mr, Justice White
pointedly observed in Furman:
[l1]egislative 'policy' is , . . necessarily defined
not by what is legislatively authorized but by what
juries and judges do in exercising the discretion
» » » conferred upon them,"
Furman v. Georgia, 408 U.S. at 314 (White, J., concurring).
Spinkellink, we respectfully suggest, is unsup-
ported by reason or precedent, Subsequent decisions of the
24 The Court strongly implied in Spinkellink, see 578 F.2d
at 612-16, and has subsequently made clear, that chal-
lenges under the Equal Protection Clause of the Four-
teenth Amendment are not similarly foreclosed as a mat-
ter of law. See, e.qg,, Smith v. Balkcom, 660 F.2d 573
(5th Cir. 1981).
- 52 =
Supreme Court have confirmed that Eighth Amendment challenges
to the application of capital statutes cannot be foreclosed,
In Godfrey v. Georgia, for example, the Supreme Court struck
down, on Eighth Amendment grounds, a misapplication of a
facially valid capital statute. 446 U.S. 420 (1980),
Justice Stewart, writing for the Court, explicitly stated
that "if a State wishes to authorize capital punishment it
has a constitutional responsibility to tailor and apply its
law in a manner that avoids the arbitrary and capricious
infliction of the death penalty." Godfrey v. Georgia, 446
U.S. at 428 (emphasis added). Accordingly, the Godfrey Court
examined Georgia's application of a statutory aggravating
circumstance, (b)(7), that the Supreme Court had specifically
upheld against a facial attack in Gregg, see Gregg Vv,
Georgia, 428 U,S., at 201, in order to determine whether that
aggravating circumstance had been misapplied in Godfrey's
case, Concluding that it had been, the Court vacated
Godfrey's death sentence, This Court has subsequently ack-
nowledged that, "[i]ln view of Godfrey, we can only conclude
that the language in the Spinkellink opinion precluding
federal courts from reviewing state courts' applications of
capital sentencing criteria is no longer sound." Proffitt v,
Wainwright, 685 PFP.24 1227, 1262 n.52 (llth Cir, 1982), cert,
denied, 52 U,S.L.W. 3423 (U,S, Nov. 29, 1983),
“BY
®
In Zant v, Stephens, 456 U.S. 410, 413 (1982), the
Supreme Court made even more explicit its understanding "that
the constitutionality of Georgia death sentences ultimately
would depend on the Georgia Supreme Court's construing the
statute and reviewing capital sentences consistently with
this concern." Under Stephens, if Georgia's statutes, though
facially valid, prove not to be applied in practice "consis-
tently with [Eighth Amendment] concerns," they are subject to
constitutional challenge,
It is just such a challenge that petitioner has
posed in the present case, based upon the comprehensive
portrait of the Georgia system afforded by the Baldus
studies, Whatever questions must subsequently be addressed
about the degree of arbitrariness that can be tolerated under
the Eighth Amendment, allegations of arbitrariness raise an
Eighth Amendment claim.
CONCLUSION
The Court should either (i) remand this case to the
District Court for an evidentiary hearing on petitioner's
claims of jury discrimination and of the arbitrary and ra-
cially discriminatory imposition of the death penalty in
Georgia or, alternatively, (ii) hold this appeal pending de-
cision by the United States District Court for the Northern
District of Georgia in McCleskey wv. Zant, No, C-81-2434A
RA
(N.D. Ga.) and, upon the entry of judgment in McCleskey, for
consolidation of any appeal in that case with this appeal.
Dated: December 27, 1983
Respectfully submitted,
(Nf
IR.
ARRINGTON D, PARKER,
MODIA J, FLYNN
MARTIN S. HIMELES, JR.
415 Madison Avenue
New York, New York 10017
EDWARD P, TOLLEY
304 East Washington Street
Athens, Georgia 30601
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
99 Hudson Street
New York, New York 10013
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER-APPELLANT
Appendix A
"Statement of Facts" from Petitioner's Post-Hearing Memoran-
dum of Law in Support of His Claim of Arbitrariness and
id Racial Discrimination, filed September 26, 1983 in McCleskey
Ve Zant, No, C-81-2434A (N.D. Gas)»
| IN THE UNITED STATES DISTRICT COURT
; . FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
/ : .
——y
| WARREN MCCLESKEY, | 0)
% i Petitioner, tiny
| -against- ) CIVIL ACTION
! 3 NO. C81-2434A
~ WALTER D. ZANT, Superintendent, =)
Georgia Diagnostic & Classification
Center, )
; Respondent. )
z
PETITIONER'S POST-HEARING MEMORANDUM OF LAW
IN SUPPORT OF BIS CLAIMS OF ARBITRARINESS
"AND RACIAL DISCRIMINATION
ROBERT H. STROUP
: 1515 Healy Building
w Atlanta, Georgia 30303
JOBEN CHARLES BOGER
v ; 10 Columbus Circle
: : New York, New York 10013
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 94305
- ANTHONY G. AMSTERDAM
"New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
invitation. In it, petitioner will first outline the evidence
presented to the Court, and then state the legal founda-
tions of his constitutional claims.
STATEMENT OF FACTS
; of petitioner's Case—in-Chief
A. Professor David Baldus
1. Areas of Expertise
Petitioner's first expert witness was Professor David C.
Baldus, currently Distinguished Professor of Law at the University
of Iowa. Professor Baldus testified that a principal focus of
his academic research and writing during the past decade has been
upon the use of empirical social scientific research in legal
contexts. . During that time, Professor Baldus. has co-authored a
widely cited lose DEEN work on the law of discrimination,
see D. BALDUS & J. COLE, STATISTICAL PROOF OF DISCRIMINATION
(1980), as well as a number of significant articles analyzing the
use of statistical techniques in the assessment of ¢laims of
3/ Due to the length and complexity of the evidentiary hearing,
and the fact that no transcript of the testimony has yet been
completed, petitioner does not purport to set forth a comprehen-
sive statement of the evidence in this memorandum. Instead, the
statement of facts will necessarily be confined to a review of
the principal features of the evidence. |
4/ Bach reference to petitioner's exhibits will be indicated
by a reference to the initials of the witness during whose
testimony the exhibit was offered (e.g., David Baldus becomes
"pDB"), followed by the exhibit number.
8/
discrimination.” Professor Baldus has also authored
several important analytical articles on other death penalty
tesussY Professor Baldus served in 1975-1976 as the
national Program Director for Law and Social Science of the
National Science Foundation (DB1, at 1), and he has been re-
tained as a consultant to the Supreme Courts of Delaware and of
® " south Dakota to propose empirical techniques for their appellate
proportionality review of capital cases (DB1, at 4). Professor
Baldus is currently the principal consultant to the Task
Porce of the National Center for State Courts on proportionality
review of capital cases. He is the recipient of numerous grants
and awards from the National Institute of Justice, the National
Science Foundation, the Edna McConnell Clark Foundation, and
other organizations for his professional research on discrimina- -
tion in capital sentencing (id., 3-4). Professor Baldus has been
invited to serve on the Board of Editors of several distinguished
1/
journals concerning the issues of law and social science, and
5/ See Baldus & Cole, "Quantitative Proof of Intentional Dis-
crimination,” 1 EVAL. QUAR. 53 (1977); Cole & Baldus, "Statistical
w Modelling to Support a Claim of Intentional Discrimination,”
y PROCEEDINGS, AM. STATIS. ASSN., SOC. SCI. SECTION.
6/ See Baldus & Cole, "A Comparison of the Work of Thorsten
Sellin and Isaac Ehrlich on the Deterrent Effect of Capital
Punishment," 85 YALE L.J. 170 (1976); Baldus, Pulaski, Wood-
worth & Kyle, "Identifying Comparatively Excessive Sentences
of Death,™ 33 STAN. L. REV. 601 (1980); Baldus, Pulaski &
Woodworth, "Proportionality Review of Death Sentences: An
Empirical Study of the Georgia Experience," J. CRIM. L. &
CRIMINOLOGY (1983) (forthcoming).
7/ Evaluation Quarterly (1976-1979); Law and Policy Quarterly
(1978-1979) (see DB1, at 3).
-d-
has served as a consultant to an eminent Special Committee on
Empirical Data in Legal Decision-Making of the Association of the
Bar of the City of New York. |
After hearing his qualifications, the Court accepted
Professor Baldus as an expert in "the empirical study of the
legal system, with particular expertise in methods of analysis
and proof of discrimination in a legal context.”
2. Development of Research Objectives
Professor Baldus testified that he first became interested
in empirical research on a state's application of its capital
puhishment statutes shortly after Gregg v. Georgia, 428 U.S.
153 (1976) and related cases had been announced by the Supreme
Court in mid-1976. Those cases, Baldus explained, explicitly
rested upon certain assumptions about how the post-Furman
capital statutes would operate: (i) that sentencing decisions
would be guided and limited by the criteria set forth in
capital statutes; (ii) that under such statutes, cases would
receive evenhanded treatment; (iii) that appellate sentence
review would guarantee statewide uniformity of treatment, by
corrcting any significant disparities in local disposition of
capital cases; and (iv) that the influenced of illegitimate
factors such as race or sex, would be eliminated by these
sentencing constraints on prosecutorial and jury discretion.
—- ---Professor Baldus testified that his own research and
training led him to conclude that the Supreme Court's assump-
tions in Gregg were susceptible to rigorous empirical evalution
employing accepted statistical and social scientific methods.
Toward that end -- in collaboration with two colleagues, Dr.
George Woodworth, an Associate Professor of Statistics at the
University of Iowa, and Professor Charles Pulaski, a Professor
R J of Criminal Law now at Arizona State University Law School --
Baldus undertook in 1977 the preparation and planning of a major
research effort to evaluate the application of post-Furman
capital statutes. In the spring semester of 1977, Professor
Baldus began a review of previous professional literature on
capital sentencing research and related areas, which eventually
comprised examination of over one hundred books and articles.
(See SE Baldus and his colleagues also obtained access
to the most well-known prior data sets on the imposition of
capital sentences in the United States, including the Wolfgang
rape study which formed the'empirical basis for the challenge
brought in Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968),
rev'd on other grounds, 398 U.S. 262 (1970), and the Stanford
9
» Law School study. They examined the questionnaires em-
8/ Baldus testified that his research was particularly aided
by other pioneering works on racial discrimination in the appli-
cation of capital statutes, see, e.g., Johnson, "The Negro and
Crime," 217 ANNALS 93 (1941); Garfinkel, "Research Note on
Inter- and Intra- Racial Homicide,™ 27 SOCIAL FORCES 369 (1949);
Wolfgang & Riedel, "Race, Judicial Discretion, and the Death
Penalty," 407 ANNALS 119 (1973); Wolfgang & Riedel, "Rape, Race,
and the Death Penalty in Georgia,” 45 AM. J. ORTHO PSYCHIAT.
658 (1975); Bowers & Pierce, "Arbitrariness and Discriminatiocn
under Post-Furman Capital Statutes,” 26 CRIME & DELINQ. 563 (1980).
( 9/ See "A Study of the California Penalty Jury in First Degree
Sp Murder Cases," 21 STAN. L. REV. 1297 (1969).
ployed in those studies, reran the analyses conducted by prior
researchers, and ran additional analyses to learn about factors
which might be important to the conduct of their own studies.
After these preliminary investigations, Baldus and his
colleagues began to formulate the general design of their own
research. They settled upon a retrospective non-experimental
study as the best available general method of tnvestication
They then chose the State of Georgia as the jurisdiction
for study, based upon a consideration of such factors as the
widespread use in other jurisdictions of a Georgia-type capital
11/
statute, the favorable accessibility of records in Georgia,
‘and numbers of capital cases in that state sufficiently large
to meet statistical requirements for analysis of data.
9 Procedural Reform Study ("PRS")
The first of the two Baldus studies, the Procedural
Reform Study, was a multi-purpose effort designed not only to
address the question of possible discrimination in the admin-
10/ Under such a design, researchers gather data from available
records and other sources on plausible factors that might have
affected an outcome of interest (here the imposition of sentence
in a homicide case) in cases over a period of time. They then
used statistical methods to analyze the relative incidence
of those outcomes dependent upon the presence or absence of
the other factors observed. Professor Baldus testified that this
method was successfully employed in, among others, the National
Halothane Study, which Baldus and his colleagues reviewed
carefully for methodological assistance.
11/ Baldus testified that he made inquiry of the Georgia De-
partment of Offender Rehabilitation, the Georgia Department
of Pardons and Paroles, and the Georgia Supreme Court, all of
which eventually agreed to make their records on homicide
cases available to him for research purposes. (See DB 24.)
“Tw
istration of Georgia's capital statutes, but to examine appellate
sentencing review, pre- and post-Furman sentencing, and other
questions not directly relevant to the issues before this Court.
Professor Baldus limited his testimony to those aspects and
findings of the PRS germane to Betitioner's claims.
The PRS, initially supported by a small grant from the Uni-
versity of Iowa Law Foundation, subsequently recéived major
funding for data collection from the National Institute of
‘Justice, as well as additional funds from Syracuse University
Law School. Work in- the final stages of data analysis was
assisted by a grant from the Edna McConnell Clark Foundation
distributed through the NAACP Legal Defense and Educational
Fund, Inc. Research data collection and analysis for the PRS
took place from 1977 through 1983.
a. Design of PRS
In formulating their research design for the PRS, Baldus
and his colleagues first identified the legal decision-points
within the Georgia charging and sentencing system which they
would study and then settled upon the "universe" of cases on
which they would seek information. After reviewing the various
stages which characterize Georgia's procedure for the disposition
of homicide cases (see DB21), Baldus decided to focus the PRS
on two decision-points: the prosecutor's decision whether to
seek a death sentence once a murder conviction had been obtained
- 8
. ——— a ———— rs + a mms ee dt — hl -C——— IRE Wh Ps PRIA ng Ein ng Ni SRT TA EE SE, ingest ie meetin Aer ——— i —
at trial; and the jury's sentencing verdict following a penalty
trial. Baldus defined the universe of cases to
include all persons arrested between the effective date of
Georgia's post-Furman capital statute, March 28, 1973, and
June 10, 1978 (i) who were convicted of murder after trial
and received either life or death sentences, or (ii) who
received death sentences after a plea of guilty, and who either
(i) appealed their cases to the Supreme Court of Georgia (ii)
or whose cases appeared in the files of both the Department
of Offender Rehabilitation ("DOR") and the Department of Pardons
and Paroles eroopny mute universe comprised 594 defendants.
(See DB 26.) Penalty trials had occurred in 193 of these
cases, including 12 in which two or more penalty trials had
taken place, for a total of 206 penalty trials. In all, 113
death sentences had been imposed in these 206 trials.
For each case within this universe, Baldus and his col-
leagues proposed to collect comprehensive data on the crime,
the defendant, and the victim. Factors were selected for inclu-
sion in the study based upon the prior research of Baldus, a
review of questionnaires employed by other researchers such as
Wolfgang as well as upon the judgment of Baldus, Pulaski and
others about what factors might possibly influence prosecutors
12/ The decision to limit the universe to cases in which a
murder conviction or plea had been obtained minimized concern
about difference in the strength of evidence of guilt. The
decision to limit the universe to cases in which an appeal had
been taken or in which DOR and DPP files appeared was a necessary
restriction based upon availability of data.
- 3a
and juries in their sentencing decisions. The initial PRS
questionnaire, titled the "Supreme Court Questionnaire,” was
drafted by Baldus working in collaboration with a law school
graduate with an advanced degree in political science, Frederick
Kyle (see DB 27), and went through many revisions incorporating
| \' the suggestions of Pulaski, Woodworth, and others with whom it
was shared. In final form, the Supreme Court Questionnaire
was 120 pages in length and addressed over 480 factors or "vari-
ables." After preliminary field use suggested the unwieldiness
of the Supreme Court Questionnaire, and after analysis revealed
a number of variables which provided little useful information,
-a second, somewhat more abbreviated instrument, titled the
Georgia Parole Board (or Procedural Reform Study) Questionnaire,
was developed (see DB 35). Much of the reduction in size of
this second questionnaire cape: £zom changes in its physical
design to re-format the same items more compactly. Other varia-
bles meant to permit a coder to indicate whether actors in the
sentencing process had been "aware" of a particular variable were
Ww dropped as almost impossible to determine from available records
in most instances. A few items were added to the second question-
naire. Eventually, information on 330 cases was coded onto the
Supreme Court Questionnaire, while information on 351 cases was
coded onto the Georgia Parole Board Questionnaire. Eighty-seven
cases were coded onto both questionnaires. (See DB 28, at
2.)
b. Data Collection for PRS
Data collection efforts for the PRS began in Georgia during
ths summer of 1979. Baldus recruited Frederick Kyle, who had
assisted in drafting the Supreme Court Questionnaire, and two other
students carefully selected by Baldus for their intelligence and
willingness to undertake meticulous detail work. Initially, the
Supreme Court Questionnaires were filled out on site in Georgia;
quickly, however, it became evident that because of the unwield-
iness of that questionnaire, a better procedure would be to gather
information in Georgia which would later be coded onto the
questionnaires at the University of Iowa. Several items were
collected for this purpose, including: (i) a Georgia Supreme
Court opinion, if one had been rendered (see DB 29); (ii) a trial
judge's report prepared pursuant to Ga. Code Ann. § 27-2537(a),
if one was available in the Georgia Supreme Court (see DB 30);
(iii) a "card summary” prepared by the Assistant to the Supreme
Court of Georgia, if available (see DB 31); a procedural record
of the case (see DB 32); (iv) an abstract of the facts, dic-
tated or prepared by the coders in Georgia from the appellate
briefs in the case, supplemented by transcript information (see
DB 33); and a narrative summary of the case (see DB 3, at 3).
In addition to those data sources, Baldus and his colleagues
relied upon basic information on the crime, the defendant and the
victim obtained from the Department of Pardons and Paroles,
information on the defendant obtained from the Department of
Offender Rehabilitation, information on the sex, race and age
Wf a
me = mean a ——— = — ———— ee Gu ne + Bm Dm mma ee Cm — —— i = a a— eh nn or 3 1 yp ph ae mm —————— ———n_ gi ——.— bo. 8 ———_— i coonnn A se Foy. wre
of the victim =-- if otherwise unavailable -- obtained from
Georgia's Bureau of Vital Statistics, as well as information on
whether or not a penalty trial had occurred, obtained from
counsel in the cases if necessary (see DB 28; DB 36).
The 1979 data collection effort continued in the fall of
. 1980 under the direction of Edward Gates, a Yale graduate
‘highly recommended for his care and precision by former employers
at a Yale medical research facility. Baldus trained Gates and
his co-workers during a four-day training session in August,
1980, in the office of Georgia's Board of Pardons and Paroles,
familiarizing them with the documents, conducting dry run
tests in questionnaire completion, and discussing at length
any problems that arose. To maintain consistency in coding,
Baldus developed a set of rules or protocols governing
coding of the instruments, which were followed by all the
coders. These protocols were reduced to written form, and a
copy was provided to Gates and other coders in August of 1980.
‘Baldus, who returned to Iowa, remained in contact with
i Gates daily by telephone, answering any questions that may
13/
have arisen during the day's coding.
C. Data Entry and Cleaning for PRS
To code the abstracts and other material forwarded
13/ While information on most of the cases in the PRS was
gathered in 1979 and 1980, Edward Gates completed the
collection effort in the final 80 cases during the summer
of 1981. ‘(See DB 28, at 2.)
oe | -ild =
from Georgia onto she Supreme Court and PRS questionnaires,
University of Iowa law students with criminal law course exper-
ience, again chosen for intelligence, diligence, and care
in detailed work. The students received thorough training
from Professors Baldus and Pulaski, and they worked under the
supervision of Ralph Allen, a supervisor who checked each
questionnaire. The students held regular weekly meetings to
discuss with Professor Baldus and sheiz supervisor any
problems they had encountered, and consistent protocols were
developed to guide coding in all areas.
Following the manual coding of the questionnaires,
Professor Baldus hired the Laboratory for Political Research
at the University of Iowa to enter the data onto magnetic
computer tape. Rigorous procedures were developed to ensure
acolizats transposal of the data, including a special program
to signal the entry of any unauthorized codes by programmers.
A printout of the data entered was carefully read by profes-
sionals against the original questionnaires to spot any errors,
and a worksheet recorded any such errors for correction on the
magnetic tapes (see DB 50).
3. Charging and Sentencing Study ("CSS") pe
In 1980, Professor Baldus was contacted for advice by the
NAACP Legal Defense Fund in connection with a grant application
being submitted to the Edna McConnell Clark Foundation seeking
funds to conduct social scientific research into the death
- 13
a mmm om fine
penalty. Several months later, the Legal Defense Fund informed
Baldus that the grant had been approved and invited him to con-
duct the research. Under that arrangement, the Legal Defense Fund
would provide the funds for the out-of-pocket expenses of a study,
ceding complete control over all details of the research and
analysis to Professor Baldus (apart from the jurisdiction to be
studied, which would be a joint decision). Once the analysis
had been completed, Baldus would be available to testify concerning
his conclusions if the Legal Defense Fund requested, but Baldus
would be free to publish without restriction whatever findings
the study might ancorar After some further discussions,
the parties agreed in the fall of 1980 to focus this Charging
and Sentencing Study ("CSS") on the State of Georgia.
a. Design of CSS
The CSS, by focusing once again on the State of Georgia,
permitted Professor Baldus and his colleagues to enlarge their
PRS inquiry in several important respects: first, they were
able, by identification of a different universe, to examine
decision-points in Georgia's procedural process stretching back
to the point of indictment, thereby including information
on prosecutorial plea-bargaining decisions as well as jury guilt
determinations; secondly, they broadened their inquiry to include
14/ Baldus indeed expressly informed LDF at the outset that
his prior analysis of the Stanford Study data left him skep-
tical that any racial discrimination would be uncovered by
such research. :
“14 -
cases resulting in voluntary manslaughter convictions as well
as murder convictions; and thirdly by development of a new ques-
tionnaire, they were able to take into account strength-of-
evidence variables not directly considered in the PRS. Beyond
these advances, the deliberate overlapping of the two related
studies provided Professor Baldus with a number of important means
to confirm the accuracy and reliability of each study.
To obtain these benefits, Baldus defined a universe including
all offenders who were arrested before January 1, 1980 for a
homicide committed under Georgia's post-Furman capital statutes,
who were subsequently convicted of murder or of voluntary man-
slaughter. From this universe of 2484 cases, Professors Baldus
and Woodworth drew two coplanar’ whe first, devised accord-.
ing to statistically valid and acceptable sampling procedures
(see the testimony of Dr. Woodworth, infra), comprised a sample
of 1066 cases, stratified to include 100% of all death-sentenced
cases, 100% of all life-sentenced cases afer a penalty
trial, and a random sample of 41% of all life-sentenced cases
without a penalty trial, and 35% of all voluntary manslaughter
cases. The stratification had a second dimension; Professors
Baldus and Woodworth designed the sample to include a minimum
25% representation of cases from each of Georgia's 42 judicial
circuits to ensure full statewide coverage.
15/ As indicated above, the PRS did not involve any sampling
procedures. All cases within the universe as defined were
subject to study.
16/ Because of the unavailability of records on one capitally-
sentenced inmate, the final sample includes only 99% (127 of 128)
of the death-sentenced cases.
- {5 -
The second sample employed by Baldus and Woodworth in the
CSS included all penalty trial decisions known to have occurred
during the relevant time period, on which records were available,
a total of 253 of 254. Among those 253, 237 also appeared in the
larger CSS Stratified Sample of 1066; the remaining 16 cases com-
prised 13 successive penalty trials for defendants whose
initial sentences had been vacated, as well as 3 cases included
in Georgia Supreme Court files, but not in the file of the
Department of Offender Rehabilitation. (This latter sample, of
course, permitted Baldus to analyze all penalty decisions
during the period. In his analyses involving prosecutorial
decisions, Baldus explained that, since a prosecutor's treatment
on the first occasion inevitably would affect his disposition
of the second, it could be misleading to count two dispositions
of a defendant by a single decisionmaker on successive prosecutions.
When two separate sentencing juries evaluated a capital defendant,
however, no such problems arose. The two samples permitted both
analyses to be employed throughout the CSS, as appropriate.)
After a universe had been defined and a sample drawn,
Baldus began development of a new questionnaire. Since the CSS
sought to examine or "model” decisions made much earlier in the
charging and sentencing prccess than those examined ia the PRS,
additional questions had to be devised to gather information on
such matters as the olen bargaining process and jury conviction
trials. A second major area of expansion was the effort to
obtain information on the strength of the evidence, an especially
“16 «
- Te. —— ——— ee —— — —— a ———— A — nr tn a ti
— Woy Wu mili or tn a ain Cn TF Tee A ar — a —— s——— mem Ae ——— -— a aes
important factor since this study included cases originally
charged as murders which resulted in pleas or convictions for
manslaughter. Professor Baldus devised these strength-of-evi-
dence questions after a thorough review of the professional
literature and consultation with other experts who had also
- worked in this area. The final CSS questionnaires (see DB 38)
also included additional variables on a defendant's prior record
and other aggravating and mitigating factors suggested by profes-
sional colleagues, by attorneys and by preliminary evaluation
of the PRS questionnaires.
b. Data Collection .for CSS
Data for the CSS were collected from essentially the same
sources used for the PRS: the Department of Pardons and Paroles,
- the Deparment of Offender Rehabilitation (see DB 40), the Supreme
Court of Georgia, the Bureau of Vital Statistics (see DB 47),
supplemented by limited inquiries to individual attorneys to
obtain information on whether plea bargains occurred, whether
penalty trials occurred, and the status (retained or appointed)
e
e
of defense counsel (see DB 45, at 3-6; DB 46) (see generally
DB 39).
Physical coding of the CSS questionnaires was completed
directly from the official records in Georgia by five law students
working under the supervision of Edward Gates, who had been
one of Baldus' two coders for the PRS in Georgia in 1980.
The five students were selected by Baldus after a nationwide
recruitment effort at 30 law schools; once again, Baldus
- 7.
Neo or Gates contacted references of the strongest candidates before
hiring decisions were made (see DB 42).
As in the PRS, an elaborate written protocol to govern data
entries was written, explained to the coders, and updated as
questions arose. (See DB 43.) After a week-long training session
a in Atlanta under the supervision of Professor Baldus, Gates and
the law students remained in contact with Baldus throughout the
summer to resolve issues and questions that arose.
B. Edward Gates
At this point during the evidentiary hearing, petitioner
presented the testimony of Edward Gates who, as indicated above,
was integrally involved in data collection efforts both in the
PRS and in the CSS. Gates testified that he was a 1977 grad-
uate of Yale University, with a Bachelor of Science degree in
biology. Following his undergraduate training, Gates worked as
a research assistant in the. Cancer Research Laboratory of Tufts
Medical School, developing data sets on cellular manipulation
experiments, recording his observations and making measurements
ww to be used in this medical research. (See EG 1.)
1. Data Collection for PRS
Gates testified that he was hired by Professor Baldus in
August of 1980 to collect data for the PRS. Prior to travelling
to Georgia, he was sent coding instructions and practice ques-
tionnaires to permit him to begin his training. During mid-
-i18 -
September, 1980, he met with Baldus in Atlanta, reviewed the
practice questionnaires, and met with records officials in the
Georgia Archives (where Supreme Court records were stored) and
in the Department of Pardons and Paroles. After several
additional days of training and coding practice, he worked at
the Archives each workday from mid-September until late October,
1980, reviewing trial transcripts, appellate briefs, trial
judges's reports, and Supreme Court opinions before preparing
abstracts and a narrative summary. |
‘Gates testified that he followed the written coding
procedures throughout, and that problems or inconsistencies were
discussed with Professor Baldus each day at 4:00 p.m. When
changes in coding procedures were made, Gates testified that he
checked previously coded questionnaires to ensure consistent
application of the new protocols.
In late October, coding work moved from the Archives to the
Pardons and Paroles offices. There, Gates had access to police
report summaries completed by Pardons and Paroles investigators,
Federal Bureau of Investigation "rap sheets," field investigator
reports on each defendant, and sometimes actual police or witness
statements. Gates pointed out an illustrative example of a case
he had coded (see DB 34) and reviewed at length the coding Sd
decisions he made in that case, one of over 200 he coded
employing the Procedural Reform Study questionnaire. In
response to questioning from the court, Gates explained that his
instructions in coding the PRS questionnaire were to draw
“1g -
~ reasonable inferences from the file in completing the foils.
(These instructions later were altered, Gates noted, for
purposes of the coding of the CSS questionnaire.)
Gates left Georgia in mid-January of 1981; he completed the
final PRS questionnaires during the summer of 1981, during his
tenure as supervisor of the CSS data collection effort in
id Atlanta.
2. Data Collection for CSS
During early 1981, Gates was invited by Professor Baldus to
serve as project supervisor of the CSS data collection effort.
In the spring of 1981, he worked extensively with Baldus on a
draft of the CSS questionnaire, assisted in hiring the coders
for the 1981 project, and drafted a set of written instructions
for the coders (see DB 4).
. Gates came to Georgia in late May of 1981, participated
with Professor Baldus in a week-long training session with the
five law student coders, and then supervised their performance
throughout the summer. He reviewed personally the files and
w questionnaries in each of the first one hundred cases coded by
| the students, to ensure consistency, and thereafter he regularly
reviewed at least one case each day for each coder. At least
twice during the summer, Gates gave all coders the same file and
asked them to code and cross-check the results with those
completed by the other coders. Gates spoke frequently by
telephone with Baldus and discussed problems that arose in
interpretation on a daily basis. As in earlier collection
- 20.
efforts, the protocols resolving questions of interpretation
were reduced to written form, the final end-of-summer draft of
which is incorporated in DB 43 (EG 5). Gates testified that he
made great efforts to ensure that all questionnaires were coded
consistently, revising all previous coded questionnaires when a
disputed issue was subsequently resolved.
~ Gates noted that for the CSS questionnaire, coders were
given far less leeway than in the PRS to draw inferences from the
record. Moreover, in the event of unresolved conflicting statements,
they were instructed to code in a manner that would support the
legitimacy of the conviction and sentence imposed in the case.
In sum, Gates testified that while the data for the PRS was
very carefully coded, the data effort for the CSS was even more
thoroughly entered, checked and reviewed. Both data collection
efforts followed high standards of data collection, with
rigorous efforts made to insure accuracy and consistency.
C. Professor David Baldus (resumed)
1. Data Entry and Cleaning for CSS
Upon receipt of six boxes of completed CSS questionnaires
at the end of August,” 1981, Professor Baldus testified that he
faced five principal tasks before data analysis could begin.
The first was to complete collection of any missing data,
especially concerning the race of the victim, the occurrence of
a plea bargain, and the occurrence of a penalty trial in life-
sentenced cases. As in the PRS study, he accomplished this
“iY
task through inquiries directed to the Bureau of Vital Statistics
(see DB 47) and to counsel in the cases (see DB 45-46). His
second task was the entry of the data onto magnetic computer
tapes, a responsibility performed under contract by the Laboratory
for Political Science. The program director subsequently reported
to Professor Baldus that, as as result of the careful data entry
procedures employed, including a special program that immediately
identified the entry of any unauthorized code, the error remaining
in the data base as a result of the data entry process is estimated
to be less than 1/6 of 1 percent, and that the procedures he had
followed conform to accepted social science data entry practices.
Baldus' third task was to merge magnetic tapes created by
the Political Science Laboratory, which contained the data
collected by his coders in Georgia, with the magnetic tapes
provided by the Department of Offender Rehabilitation, which
contained personal data on each offender. This was accomplished
through development of a computer program under the supervision
of Professor Woodworth. Next, Professors Baldus and Woodworth
engaged in an extensive data "cleaning" process, attempting
through various techniques -- crosschecking between the PRS
and CSS files, manually comparing entries with the case sum-
maries, completing crosstabular computer runs for consistency
between two logically related variables -- to identify any
coding errors in the data. Of course, upon identification,
ASE, Pe
1v/
Baldus entered a program to correct the errors. (See DB 51).
The final step preceding analysis was the "recoding" of
variables from the format in which they appeared on the CSS
questionnaire into a binary form appropriate for machine analysis.
Professor Baldus performed this recoding (see DB S54, DB 55),
limiting the study to 230+ recoded variables considered relevant
for an assessment of the question at issue: whether Georgia's
charging and sentencing system might be affected by racial
factors.
2. Methods of Analysis
As the data was being collected and entered, Professor
Baldus testified that he developed a general strategy of
analysis. Pirst, he would determine the patterns of homicides in
Georgia and any disparities in the rate of imposition of death
sentence by race. Then he would examine a series of alternative
hypotheses that might explain any apparent racial disparities.
Among these hypotheses were that any apparent disparities could
be accounted for: (i) by the presence or absence of one or
more statutory aggravating circumstances; (ii) by the presence
or absence of mitigating circumstances; (iii) by the strength of
the evidence in the different cases; (iv) by the particular time
period during which the sentences were imposed; (v) by the
geographical area (urban or rural) in which the sentences were
imposed; (vi) by whether judges or juries imposed sentence;
17/ Among the approximately 500,000 total entries in the CSS
study, Professor Baldus testified that he found and corrected
a total of perhaps 200 errors.
(vii) by the stage of the charging and sentencing system at
which different cases were disposed; (viii) by other, less
clearly anticipated, but nevertheless influential factors or
combinations of factors; or (ix) by chance.
Professor Baldus also reasoned that if any racial dispari-
ties survived analysis by a variety of statistical techniques,
employing a variety of measurements, directed at a number of
different decision-points, principles of “triangulation” would
leave him with great confidence that such disparities were real,
persistent features of the Georgia system, rather than statis-
tical artifacts conditioned by a narrow set of assumptions or
conditions.
For these related reasons, Professor Baldus and his
colleagues proposed to subject their data to a wide variety of
analyses, attentive throughout to whether any racial disparities
remained stable.
3. Analysis of Racial Disparities
a. Unadjusted Measures of Disparities
Before subtenting his data to rigorous statistical
analyses, Professor Baldus spent time developing a sense for the
basic, unadjusted parameters of his data which could thereby
inform his later analysis. He first examined the overall
homicide and death sentencing rates during the 1974-1979 period
18/ |
(see DB 57), the disposition of homicide cases at
18/ Unless otherwise indicated, the Baldus exhibits reflect
data from the CSS.
PR ae
a
successive stages of the charging and sentencing process (see
DB 58; DB 59) and the frequency distraction of each of the
CSS variables among his universe of cases (see DB 60).
Next, Baldus did unadjusted analyses to determine whether
the zace~of-victin and race~of-defendant disparities reported
by earlier researchers in Georgia would be reflected in his data
as well. In fact, marked disparities did appear: while death
sentences were imposed in 11 percent of white victim cases,
death sentences were imposed in only 1 percent of black victim
cases, a 10 point unadjusted disparity (see DB 62). While a
slightly higher percentage of white defendants received death
sentences than black defendants (.07 vs. .04) (id.), when the
victim/offender racial combinations were separated out, the
pattern consistently reported by earlier researchers appeared:
Black Def./ = White Def./ Black Def./ White Def./
White Vic. White Vic. Black Vic. Black Vic.
; one .08 3 .01 .03
(50/228) (58/745) (18/1438) (2/64)
b. Adjusted Measures of Disparities
Baldus testified, of course, that he was well aware that
these unadjusted racial disparities alone could not decisively
answer the question whether racial factors in fact play a real
and persistent part in the Georgia capital sentencing system.
To answer that question, a variety of additional explanatory
factors would have to be considered as well. Baldus illustrated
this point by observing that although the unadjusted impact of _
the presence or absence of the "(b)(8)" aggravating
- 28
19/
circumstance on the likelihood of a death sentence
appeared to be 23 points (see DB 61), simultaneous consideration
or "control" for both (b)(8) and a single additional factor
-- the. presence or absence of the "(b)(10)" statutory rectory
-- reduced the disparities reported for the (b)(8) factor from
.23 to .04 in cases with (b)(10) present, and to -.03 in cases
without the (b)(10) factor. (See DB 64.)
Baldus explained that another way to He25uze the impact of
a factor such as (b)(8) was by its coefficient in a least
squares regression. That coefficient would reflect the average
of the disparities within each of the separate subcategories, or
cells (here two cells, one with the (b) (10) factor present, and
one with (b)(10) absent). (See DB 64; DB 65.) Still another
measure of the impact of the factor would be by the use of
logistic regression procedures, which would produce both a
difficult-to-interpret coefficient and a more simply understood
"death odds multiplier,” derived directly from the logistic
coefficient, which would reflect the extent to which the presence
of a particular factor, here (b) (8), Bligh: multiply the odds that
a case would receive a death sentence. Baldus testified that,
19/ 0.C.G.A. § 17-10-30.(b)(8) denominates the murder of a
peace officer in the performance of his duties as an aggravating
circumstance.
20/ 0.C.G.A. § 17-10-30.(b)(10) denominates murder committed
to avoid arrest as an aggravated murder.
21/ DB 64 reflects that the least squares coefficient for the
(b) (8) factor was .02, the logistic coefficient was =-.03, and
the "death odds" multiplier was .97.
06
by means of regular and widely-accepted statistical calculations,
these measures could be employed so as to assess the independent
impact of a particular variable while controlling simultaneously
for a multitude of separate additional variables.
Armed with these tools to measure the impact of a variable
after controlling simultaneously for the effects of other
variables, Professor Baldus began a series of analyses involving
the race of the victim and the race of the defendant -- first con-
trolling only for the presence or absence of the other racial factor
(see DB 69; DB 70), then controlling for the presence or absence
of a felony murder circumstance (see DB 71; DB 72; DB 73), then
controlling for the presence or absence of a serious prior
record (see DB 74), then controlling simultanecusly for felony
murder and prior record (see DB 77), and finally controlling
simultaneously for nine statutory aggravating circumstances as
well as prior record (see DB 78). In all these analyses, Baldus
found that the race of the victim continued to play a substantial,
independent role, and the race of the defendant played a lesser,
22/
somewhat more marginal, but not insignificant role as well.
22/ Professor Baldus testified concerning another important
measure which affected the evaluation of his findings =-- the
measure of statistical significance. Expressed in parentheses
throughout his tables and figures in terms of "p" values, (with
a p-value of.10 or less being conventionally accepted as "margin-
ally significant," a p-value of .05 accepted as “significant,”
and a p-value of .01 or less accepted as "highly statisticaly
significant™), this measure p computes the likelihood that, if in
the universe as a whole no real differences exist, the reported
differences could have been derived purely by chance. Baldus
explained that a p-value of .05 means that only one time in
twenty could a reported disparity have been derived by chance if,
in fact, in the universe of cases, no such disparity existed. A
p-value of .01 would reflect a one-in-one hundred likelihood, a
p-value of .10 a ten-in-one hundred likelihood, that chance alone
could explain the reported disparity.
~~.
= ah AW a me. aw sem —- ey men Fd . l- - - - - L- - sii a Cm —— RO SNES SA an BR
Having testified to these preliminary findings, Professor
Baldus turned then to a series of more rigorous analyses (which
petitioner expressly contended to the court were responsive to
the criteria set forth by the Circuit Court in Smith v. Balkcom,
671 F.2d 858 (5th Cir. Unit B 1982) (on rehearing.). In the
first of these (DB 79), Baldus found that when he took into
account or controlled simultaneously for all of Georgia's
statutory aggravating circumstances, as well as for 75 additional
mitigating factors, both the race of the victim and the race of
the defendant played a significant independent role in the
determination of the likelihood of a death sentence. Measured
in a weighted least squares regression ratosto vase of victim
displays a .10 point coefficient, a result very highly statist-
ically significant at the 1-in-1000 level. The logistic
coefficient and the death odds multiplier of 8.2 are also very
highly statistically stgnizicans. The race of defendant effect
measured by least squares regression was .07, highly statist-
ically significant at the 1-in=-100 level; employing logistic
measures, however, the race of defendant coefficient was not
statistically significant, and the death odds multiplier was
1.4.
23/ Because the stratified CSS sample required weighting under
accepted statistical techniques, a weighted least squares regres-
sion result is reflected. As an alternative measurement, Pro-
fessor Baldus performed the logistic regression here on the
unweighted data. Both measures show significant disparities.
“8 -
Professor Baldus next reported the race-of-victim and
defendant effects measured after adjustment or control for a
graduated series of other factors, from none at all, to over 230
-- factors -- related to the crime, the defendant, the victim,
co-perpetrators as well as the strength of the evidence --
simultaneously. (See DB 80.2 Professor Baldus emphasized
that as controls were imposed for additional factors, although
the measure of the race-of-victim effect diminished slightly
from .10 to .06, it remained persistent and highly statistically
significant in each analysis. The race of defendant impact,
although more unstable, nevertheless reflected a .06 impact in
the analysis which controlled for 230+ factors simultaneously,
" highly significant at the 1-in-100 level.
Professor Baldus attempted to clarify the significance of
these nanbers by comparing the coefficients of the race-of-
victim and race-of-defendant factors with those of other im-
portant factors relevant to capital sentencing decisions.
Exhibit DB 81 reflects that the race of the victim factor,
measured by weighted least squares regression methods, plays
a role in capital sentencing decisions in Georgia as signif-
icant as the (i) presence or absence of a prior record of
murder, armed robbery or rape (a statutory aggravating circum-
stance =-- (b)(1)); (ii) whether the defendant was the prime
mover in planning the homicide, and plays a role virtually as
24/ This latter analysis controls for every recoded variable
used by Professor Baldus in the CSS analyses, all of which are
identified at DB 60.
- 20
significant as two other statutory aggravating circumstances (the
murder was committed to avoid arrest -- (b)(10) == and the
defendant was a prisoner or an escapee -=- (b)(9)). The race
of defendant, though slightly less important, yet appears a more
significant factor than whether the victim was a stranger or an
acquaintance, whether the defendant was under 17 years of age, -
or whether the defendant had a history of alcohol- or drug abuse.
The Comparable logistic regression measures reported in DB 82,
while varying in detail, tell the same story: the race of the
victim, and to a lesser extent the race of the defendant,
play a role in capital sentencing decisions in Georgia more
significant than many widely recognized legitimate factors.
The race of the victim indeed plays a role as important as many
of Georgia's ten statutory aggravating circumstances in
determining which defendants will receive a death sentence.
With these important results at nand, Professor Baldus
began a series of alternative analyses to determine whether
the employment of other "models” or groupings of relevant
factors might possibly diminish or eliminate the strong racial
effects his data had revealed. Exhibit DB 83 reflects the
results of these analyses. Whether Baldus employed his full
file of recoded variables, a selection of 44 other variables most
strongly associated with the likelihood of a death sentence, Or
selections of variables made according to other recognized
30. =
a%/
statistical techniques, both the magnitude and the statist-
ical significance of the race of the victim factor remained
remarkably stable and persistent. (The race of the defendant
factor, as ts earlier analyses, was more unstable; although
strong in the least squares analyses, it virtually disappeared in
the logistic analyses. ) | -
Baldus next, in a series -of analyses (see DB 85- DB 87)
examined the race-of-victim and defendant effects within the
subcategories of homicide accompanied by one of the two statutory
aggravating factors, -- (b)(2), contemporaneous felony, or
(b)(7), horrible or inhuman =-- which are present in the vast
majority of all homicides that received a death sentence (see DB
84). These analyses confirmed that within the subcategories
of homicide most represented on Georgia's Death Row, the same
racial influences persist, irrespective of the other factors
controlled for simultaneously (see DB 85). Among the various
subgroups of (b)(2) cases, subdivided further according to
the kind of accompanying felony, the racial factors continue to
play a role. (See DB 86; DB 87.)
25/ Two of Professor Baldus' analyses involved the use of
step-wise regressions, in which a model is constructed by
mechanically selecting, in successive "steps," the single factor
which has the most significant impact on the death-sentencing
outcome, and then the most significant remaining factor with the
first, most significant factor removed. Baldus performed this
step-wise analysis using both least squares and logistic
regressions. Baldus also performed a factor analysis, in which
the information coded in his variables is recombined into
different "mathematical factors™ to reduce the possibility that
multicolinearity among closely related variables may be distorting
the true effect of the racial factors.
i 3T -
Professor Baldus then described yet another method of
analysis of the racial factors -- this method directly responsive
to respondent's unsupported suggestion that the disproportionate
death-sentencing rates among white victim cases can be explained
by the fact that such cases are systematicaly more aggravated.
To examine this suggesstion, Baldus divided all of the CSS cases
into eight, roughly equally-sized groups, based upon their overall
levels of aggravation as measured by an aggravation-mitigation
index. 2 Baldus observed that in the less-aggravated categories,
no race-of-victim or defendant disparities were found, since virtually
no one received a death sentence. Among the three most aggravated
groups of homicides, however, where a death sentence became a
possibility, strong race-of-victim Zisparities, and weaker, but |
marginally significant race-of-defendant disparities, emerged.
(See DB 89.)
‘Baldus refined this analysis by dividing the 500 most
aggravated cases into 8 subgroups according to his aggravation/
mitigation index. Among these 500 cases, the race-of-victim
disparities were most dramatic in the mid-range of cases, those
neither highly aggravated nor least aggravated where the latitude
for the exercise of sentencing discretion was the greatest.
(See DB 90.) While death sentencing rates climbed overall as
the cases became more aggravated, especially victims within the
groups of the cases involving black defendants, such as petitioner
McCleskey, the race-of-victim disparities in the mid-range
26/ Baldus noted that a similar method of analysis was a prominent
feature of the National Halothane Study.
«33
reflected substantial race-of-victim disparities:
Category
(DB 90.)
(9/14)
Black Def.
White Vic. Black Vic.
«30 +1]
(3/10) (2/18)
233 «0
(3/13) (0/15)
3S yy
(9/26) (2/12/)
.38 05
(3/8) (1/20)
.64 .39
(5/13)
Race of defendant disparities, at least in white victim cases,
were also substantial, with black defendants ‘involved in homi-
cides of white victims substantially more likely than white
defendants to receive a death sentence.
White Vic.
Category Black Def. White Def.
3 .30 .03
(3/10) (1/39)
4 ed .04
(3/13) (1/29)
5 35 «20
(9/26) (4/20)
6 .38 «16
(3/8) (5/32)
7 .64 .39
(9/14) (5/39)
(DB 91.)
«2%
These results, Professor Baldus suggested, not only support
the hypothesis that racial factors play a significant role in
Georgia's capital sentencing system, but they conform to the
"liberation nypothesis” set forth in Kalven & Zeisel's The
27/
American Jury. That hypothesis proposes that illegitimate
sentencing considerations are most likely to come into play
where the discretion afforded the decisionmaker is greatest,
i.e., where the facts are neither so overwhelmingly strong nor
so weak that the sentencing outcome is foreordained.
4. Racial Disparities at Different Procedural Stages
Another central issue of Professor Baldus' analysis, one
“made possible by the comprehensive data obtained in the CSS,
was his effort to follow indicted murder cases through the
charging and sentencing system, to determine at what procedural
points the racial disparities manifested themselves. Baldus
observed at the outset that, as expected, the proportion of
white victim cases rose sharply as the cases advanced through
the system, from 39 percent at indictment to 84 percent at
death-sentencing, while the black defendant/white victim
proportion rose even faster, from 9 percent to 39 percent.
(See DB 93.) The two most significant points affecting
these changes were the prosecutor's decision on whether or
not to permit a plea to voluntary manslaughter, and the prose-
cutor's decision, among convicted cases, of who to take on to a
sentencing trial. (See DB 94.)
21Y/ H. KALVEN & H. ZEISEL, THE AMERICAN JURY 164-67 (1966).
7.
The race-of-victim disparities for the prosecutor's decision
| on whether to seek a penalty trial are particularly striking, G
consistently substantial and very highly statistically significant
in both the PRS and the CSS, irrespective of the number of
variables or the model used to analyze the decision (see DB 93).
The race-of-defendant disparities at this procedural stage were
substantial in the CSS, though relatively minor and not statist-
ically significant in the PRS. (Id.) Logistic gegression
analysis reflects a similar pattern of disparities in both the
CSS and the PRS. (see DB 96. ).
5. Analysis of Other Rival Hypotheses
Professor Baldus then reported seriatim on a number of
different alternative hypotheses that might have been thought
likely to reduce or eliminate Georgia's persistent racial dispar-
ities. All were analyzed; none had any significant effects.
Baldus first hypothesized that appellate sentence review by the
Georgia Suprene Court might eliminate the disparities. Yet
while the coefficients were slightly reduced and the statistical
@ significance measures dropped somewhat after appellate review,
most models (apart from the stepwise regression models) continued
to reflect real and significant race-of-victim disparities and
somewhat less consistent, but observable race-of~-defendant
effects as well.
- 38
Baldus next hypothesized that the disparities do not reflect
substantial changes or improvements that may have occurred in the
Georgia system between 1974 and 1979. Yet when the cases were
subdivided by two-year periods, although some minor fluctuations
were observable, the disparities in the 1978-1979 period were
almost identical to those in 1974-1975. (See. DB 103.) An
urban-rural breakdown, undertaken to see whether different
aahtaneins rates in different regions might produce a false
impression of disparities despite evenhanded treatment within
each region, produced instead evidence of racial disparities in
both aT84s, (although stronger racial effects appeared to be
present in rural areas (See DB 104.)) Finally, no discernable
difference developed when sentencing decisions by juries alone
were compared with decisions from by sentencing judges and
juries. (See DB 105.)
6. Fulton County Data
Professor Baldus testified that, at the request of peti-
tioner, he conducted a series of further analyses on data drawn
from Fulton County, where petitioner was convicted and sentenced.
The purpose of the analyses was to determine whether or not the
racial factors so clearly a part of the statewide capital
sentencing system played a part in sentencing patterns in Fulton
County as well. Since the smaller universe of Fulton County
cases placed some inherent limits upon the statistical operations
that could be conducted, Professor Baldus supplemented these
statistical analyses with two "qualitative" studies: (i) a "near
- 36 -
neighbors™ analysis of the treatment of other cases at a level of
aggravation similar to that of petitioner; and (recognizing that
petitioner's victim has been a police officer) an analysis of the
treatment of other police victim cases in Fulton County.
a. Analysis of Statistical Disparities
Professor Baldus began his statistical analysis by observing
the unadjusted disparities in treatment by victim/defendant
racial combinations at six separate decision points in
Fulton County's charging and sentencing system. The results
show an overall pattern roughly similar to the statewide pattern:
Black Def. White Def. Black Def. White Def.
White Vic. White Vic. Black Vic. Black Vic.
.06 +05 .005 .0
(3/52) (5/108) (2/412) (0/8)
(DB 106.) The unadjusted figures also suggest (i) a greater
willingness by prosecutors to permit defendants to plead to
voluntary manslaughter in black victim cases, (ii) a greater
likelihood of receiving a conviction for murder in white victim
cases, and (iii) a sharply higher death sentencing rate for white
victim cases among cases advancing to a penalty phase. (DB 106;
DB 107.) When Professor Baldus controlled for the presence or
absence of each of Georgia's statutory aggravating circumstances
separately, he found very clear patterns of race-of-victim
disparities among those case categories in which death sentences
were most frequently imposed (DB 108). Among (b)(2) and (b) (8)
cases -- two aggravating cirstances present in petitioner's own
“37 -
case -- the race-of-victim disparities were .09 and .20 respec-
tively (although the number of (b)(8) cases was too small to
support a broad inference of discrimination).
When Professor Baldus controlled simultaneously for a host
of variables, including 9 statutory aggravating circumstances,
a large number of mitigating circumstances, and factors related
to both the crime and the defendant (see DB 114 n.1 and DB
96A, Schedule 3), strong and highly statistically significant
race-of-victim disparities were evident tn both the decision of
prosecutors to accept a plea (-.55, p=.0001) and the decision to
advance a case to a penalty trial after conviction (.20, p=.01)
(DB 114). Race-of-defendant disparities were also substantial
and statistically significant at the plea stage (-.40, p=.01) and
at the stage where the prosecutor must decide whether to advance
a case to a penalty trial (.19, p=.02) (DB 114). These racial
disparities in fact, were even stronger in Fulton County
than they were statewide. |
Although the combined affects of all decision-points
Ww in this analysis for Fulton County did not display significant
racial effects, Professor Baldus suggested that this was likely
explained by the very small number of death-sentenced cases in
Fulton County, which made precise statistical judgments on
overall impact more difficult.
- 38 =~
b. "Near Neighbors" Analysis
Aware of the limits that this small universe of cases would
impose on a full statistical analysis of Fulton County data,
Professor Baldus undertook a qualitative analysis of those cases
in Fulton County with a similar level of aggravation to petitioner --
the "near neighbors.” Baldus identified these neighboring
cases by creating an index through a multiple regression analysis
of those non-suspect factors most predictive of the likelihood of
a death sentence statewide. Baldus then rank-ordered all Fulton
County cases by means of this index, and identified the group
of cases nearest to petitioner. He then broke these cases, 32
in all, into three subgroups =-- more aggravated, typical, and
less aggravated -- based upon a qualitative analysis of the
case summaries in these 32 cases. Among these three subgroups,
he calculated the death-sentencing rates by race-of-victim. As
in the statewide patterns, no disparities existed in the less
aggravated subcategory, since no death sentences were imposed
there at all. In the "typical®™ and "more aggravated” sub-
categories, however, race-of-victim disparities of .40 and
.42 respectively, appeared. (See DB 109; DB 110.) Professor
Baldus testified that this near neighbors analysis strongly
reinforced the evidence from the unadjusted figures that racial
disparities, especially by race-of-victim, are at work not only
statewide, but in Fulton County as well.
-'30 w
c. Police Homicides
Professor Baldus' final Fulton County analysis looked
at the disposition of 10 police-victim homicides, involving
18 defendants, in Fulton County since 1973. (See DB 115.)
Among these 18 potential cases, petitioner alone received
a death sentence. Professor Baldus divided 17 of the cases
into two subgroups, one subgroup of ten designated as "less
aggravated,” the other subgroup of seven designated as ®"aggra-
vated." (See DB 116.) The "aggravated" cases were defined
to include triggerpersons who had committed a serious contem-
poraneous offense during the homicide. Among the seven aggra-
vated cases, three were permitted to plead guilty and two were
convicted, but the prosecutor decided not to advance the cases
to a penalty trial. Two additional cases involved convictions
advanced to a penalty trial. In one of the two, petitioner's
case, involving a white officer, a death sentence was imposed;
in the other case, involving a black officer, a life sentence
was imposed.
Although Professor Baldus was reluctant to draw any broad in-
ference from this analysis of a handful of cases, he did note
that this low death-sentencing rate for police-victim cases in
Fulton County paralleled the statewide pattern. Moreover,
the results of this analysis were clearly consistent with peti-
tioner's overall hypothesis.
28/ One defendant, treated as mentally deranged by the system,
was not included in the analysis.
- 4 -
7. Professor Baldus' Conclusions
In response to questions posed by petitioner's counsel
(see DB 12), Professor Baldus offered his expert opinion ==
in reliance upon his own extensive analyses of the PRS and Css
studies, as well as his extensive review of the data, research
and conclusions of other researchers -- that sentencing dis-
parities do exist in the State of Georgia based upon the race of
the victim, that these disparities persist even when Georgia
statutory aggravating factors, non-statutory aggravating factors,
mitigating factors, and measures of the strength of the evidence
are simultaneously taken into account. Professor Baldus further
testified that these race-of-victim factors are evident at
crucial stages in the charging and sentencing process of Fulton
County as well, and that he has concluded that these factors
have a real and significant impact on the imposition of death
sentences in Georgia.
Professor Baldus also addressed the significance of the
race-of-defendant factor. While he testified that it was not
nearly so strong and persistent as the race of the victim, he
noted that it did display some marginal effects overall, and that
the black defendant/white victim racial combination appeared to
have some real impact on sentencing decisions as well.
- a) -
D. Dr. George Woodworth
y. Area of Expertise
Petitioner's second expert witness was Dr. George Woodworth,
Associate Professor of Statistics and Director of the Statistical
Consulting Center at the University of Iowa. Dr. Woodworth
testified that he received graduate training as a theoretical
statistician under a nationally recognized faculty at the
University of Minnesota. (See GW 1.) One principal focus. of
his academic research during his graduate training and thereafter
has been the analysis of “nonparametric” or discrete outcome
data, such as that collected and analyzed in petitioner's case.
After receiving his Ph.D. degree in statistics, Dr. Woodworth
was offered an academic position ‘in the Department of Statistics
at Stanford University, where he first became professionally |
interested in applied statistical research. While at Stanford,
Dr. Woodworth taught nonparametric statistical analysis, multi-
variate analysis and other related courses. He was also selected
to conduct a comprehensive review of the statistical methodology
employed in the National Halothane Study, for presentation to
the National Research Council. Thereafter, upon accepting an
invitation to come to the University of Iowa, Dr. Woodworth
agreed to become the director of Iowa's Statistical Consulting
Center, in which capacity he has tevieved and consulted as a
statistician in ten to twenty empirical studies a year during
the past eight years.
“42 -
Dr. Woodworth has published in a number of premier
refereed professional journals of statistics on nonparametric
scaling tests and other questions related to his expertise
in this case. He has also taught courses in "the theory of
probability, statistical computation, applied statistics,
and experimental design and methodology. In his research
and consulting work, Dr. Woodworth has had extensive
experience in the use of computers for computer-assisted
statistical analysis. |
After hearing his credentials, the Court qualified Dr.
Woodworth as an expert in the theory and application of sta-
tistics and in statistical computation, especially of discrete
outcome data such as that analyzed in the studies before the
Cours.
2. Responsibilities in the PRS
Dr. Woodworth testified that he worked closely with Professor
Baldus in devising statistically valid and acceptable procedures
for the selection of a universe of cases for inclusion
in the PRS. Dr. Woodworth also reviewed the procedures
governing the selection of cases to be included in the three
subgroups on which data were collected at different times and
with different instruments to ensure that acceptable principles
of random case selection were employed.
Dr. Woodworth next oversaw the conversion of the data
received from the PRS coders into a form suitable for statistical
‘analysis, and he merged the several separate data sets into one
- 43 ~
a a Ss me, a et pe or a EH RT ey —3n 7 Sr Snr y——— vy | —-— - i — re da ——
comprehensive file, carefully following established statistical
and computer procedures. Dr. Woodworth also assisted in the
cleaning of the PRS data, using computer techniques to uncover
possible errors in the coding of the data.
3. CSS Sampling Plan
Dr. Woodworth's next principal responsibility was the
design of the sampling plan for the CSS, including the develop-
ment of appropriate weighting techniques for the stratified
design. In designing the sample, Dr. Woodworth consulted with
Dr. Leon Burmeister, a leading national specialist in sampling
procedures. Dr. Burmeister approved the CSS design, which Dr.
Woodworth found to have employed valid and statistically accept-
able procedures throughout. Dr. Woodworth explained in detail
how the sample was drawn, and how the weights for analysis of the
CSS data were calculated, referring to the Appendices to GW 2
(see GW 2, pp. 5ff.)
4. Selection of Statistical Techniques
Dr. Woodworth testified that he employed accepted statist-
ical and computer techniques in merging the various data files
collected for the CSS, and in assisting in the data cleaning
efforts which followed.
Dr. Woodworth also made the final decision on the appro-
priate statistical methods to be employed in the analysis of
the CSS and PRS data. He testified at length concerning the
- 44.
statistical assumptions involved in the use of weighted and un-
weighted least squares regressions, logistic regressions and
index methods, and gave his professional opinion that each
of those methods was properly employed in these analyses
according to accepted statistical conventions. In particular,
Dr. Woodworth observed that while certain assumptions of least
squares analysis appeared inappropriate to the data in these
studies -- especially the assumption that any racial effects
would exercise a constant influence across the full range of
cases -- the use of that method did not distort the effects
reported in the analyses, and its use allowed consideration of
helpful and unbiased information about the racial effects.
Moreover, Dr. Woodworth noted that the alternative analyses
which employed logistic regressions -- a form of regression analysis
dependent upon assumptions closely conforming to the patterns of
data observed in these studies -- also found the persistence of
racial effects and showed that the use of least squares analysis
could not account for the significant racial disparities observed.
5. Diagnostic Tests
Dr. Woodworth conducted a series of diagnostic tests
to determine whether the methods that had been selected might
have been inappropriate to the data. Table 1 of GW 4 reflects
the results of those diagnostic tests, performed on five models
that were used throughout the CSS analysis. For both the race
~ of the victim and race of the defendant, Dr. Woodworth compared
- 45 ~
coefficients under a weighted least squares regression
analysis, an ordinary least squares regression analysis, a
"worst case" approach (in which cases with "missing" values
were systematically coded to legitimize the system and run
counter to the hypotheses being tested), a weighted least
squares analysis removing the most influential cases, a weighted
least squares analysis accounting for possible "interactions”
among variables, a weighted logistic regression analysis, and an
unweighted logistic regression analysis. (GW 4, at Table 1.)
Dr. Woodworth also employed a conservative technique to cal-
culate the statistical significance of his results (see GW 3, at
6 n.1, and Schedule II, for a calculation of Cressie's safe
method) and a "modified Mantel-Haenzel Procedure (see GW 3,
Schedules 1 and 3) to test the logistic regressions. These
various diagnostic tests did not eliminate, and in most cases
did not even substantially diminish, the race-of-victim effects.
The levels of statistical significance remained strong, in most
instances between two and chees standard deviations, even
employing Cressie's conservative "safe" method to calculate
significance.
Dr. Woodworth testified that, alien this extensive diagnos-
tic evalution, he was confident that the statistical procedures
selected and employed in the PRS and CSS analyses were valid,
and that the racial disparities found by the two studies were
not produced by the use of inappropriate statistical methods or
by incorrect specification of the statistical model.
“ 45
6. Models of the Observed Racial Disparities
Dr. Woodworth then directed the Court's attention to two
figures he had developed to summarize the overall racial
disparities in death-sentencing rates identified by the CSS
study, employing the "mid-range" model in which both Dr. Wood-
worth and Professor Baldus had expressed particular confidence.
(See GW 5A and 5B.) As Dr. Woodworth explained, these figures
represented the likelihood of receiving a death sentence
at different levels of aggravation. Among black defendants such
as petitioner (see GW 5B, Fig. 2), Dr. Woodworth noted that the
death~-sentencing rate in Georgia rises far more precipitously
for white victim cases as aggravation levels increase than does
the rate for black victim cases. For example, Dr. Woodworth
observed, at the .4 level of aggravation, those black defendants
who had killed white victims were exposed to a .15 point higher
likelihood of receiving a death sentence. A similar disparity,
based upon race of the victim, obtained among white defendants.
(See GW 5a, Pig. 1.)
From these figures, Dr. Woodworth concluded that although
white victim cases as a group are more aggravated than black
victim cases, strong racial disparities exist in Georgia even
when only those cases at similar levels of aggravation are
compared.
-ildl
E. Lewis Slayton Deposition
Petitioner offered, and the Court admitted pursuant to
Rule 7 of the Rules Governing Section 2254 Cases, a transcript
of the deposition of Lewis Slayton, the District Attorney for
the Atlanta Judicial Circuit. In his deposition, while
District Attorney Slayton stated several times that race did
not play a role in sentencing decisions (Dep., at 78), he ac-
knowledged that his office had no express written or unwritten
policies or guidelines to govern the disposition of homicide
cases at the indictment stage (Dep., 10-12), the plea stage,
(Dep., at 26) or the penalty stage (Dep., 31, 41, 58-39).
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 also agreed 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
sane” as it was in the pre-Furman period (Dep., 59-61), and that
the jury's likely verdict influences whether or not a case will
move from conviction to a penalty trial (Dep. 31, 38-39).
F. Other Evidence
Petitioner offered the testimony of L. G. Warr, a parole
officer employed by the Georgia Board of Pardons and Paroles.
“48 w-
— mm
Officer Warr acknowledged that in preparing the Parole Board
reports used by Professor Baldus in his study, parole investi-
gators were obligated by statute and by the Board Manual of
Procedure in all murder cases to speak with the prosecuting
attorney and police officers if possible, soliciting records,
witness interviews and other sources of information, including
Rid comments from the prosecutor not reflected in any written
document or file. The Manual instructs investigators that it
is imperative in cases involving personal violence to obtain
information on all aggravating and mitigating circumstances.
The portions of the Manual admitted as LW 1 confirm Officer
Warr's testimony.
Petitioner also introduced testimony from petitioner's
sister, Betty Myer, that petitioner's trial jury included
eleven whites and one Black.
Finally, petitioner proffered a written report by Samuel
Gross and Robert Mauro on charging and sentencing patterns in
Georgia which was refused by the Court in the absence of live
testimony from either of the report's authors.
II. Respondent's Case
Respondent offered the testimony of two expert witnesses,
Dr. Joseph Katz and Dr. Roger Burford.
A. Dr. Joseph Katz
1. Areas of Expertise
Dr. Katz testified that he had received bachelors degrees
Sr - 49 -
in mathematics and computer science from Louisiana State Univer-
sity. Katz received a Master degree in Mathematics and a
Ph.D. degree in Quantitative Methods from L.S.U. A major
focus of his professional research has been on input-output multi-
plier models used in the projection of economic developments
by experts interested in regional growth. Dr Ratz has taught
various courses in basic statistics, operations research and
linear programming in the Department of Quantitative Methods at
L.S.U., in the Department of Management Information Sciences at
the University of Arizona, and in the Department of Quantitative
Methods at Georgia State University, where he is currently an
Assistant Professor. Dr. Katz has published a number of articles
on input-output multipliers in several refereed journals of
regional science. |
Respondent offered Dr: Katz as an expert on statistics,
statistical analysis, quantitative methods, analysis of data,
and research design. On voir dire, Dr. Katz acknowledged that
he had no expertise at all in criminal justice or in the appli-
cation of statistics to criminal justice issues. Dr. Katz
was unfamiliar with any literature or research in the area.
(Counsel for the State expressly conceded that the State was not
offering Dr. Katz to shed light in the criminal justice area.)
Moreover, Dr. Katz has only one prior academic or profes-
‘sional experience in the design of empirical research or the
collection of empirical data -- and that one experience involved
the gathering of Census data from library sources. He acknowl-
edged having taken no academic course in multivariate analysis.
“50
Upon completion of voir dire, the Court agreed to accept
Dr. Katz as an expert in statistics. The Court declined to
qualify him as an expert in criminal justice, research design,
or empirical research.
2. Critiques of Petitioner's Studies
a. Use of Foil Method
Over petitioner's objection predicated on his lack of exper-
tise, Dr. Katz was permitted to testify that the use of the foil
method of data entry for some of the PRS variables might have
resulted in the loss of some information in those instances in
which there were insufficient foils. The foil method also
prevented a coder from reflecting completely certain data
because of the arrangement of several of the foils.
Dr. Ratz admitted that the CSS questionnaite, which
largely avoided any foil entries, was an improvement over the
PRS questionnaires, although Dr. Katz faulted the one or two
items in the CSS which reverted to a foil approach.
b. Inconsistencies in the Data
Dr. Katz testified that he had run cross-checks of variables
present in cases included in both the PRS and the CSS that
appeared to be identical. These checks uncovered what seemed to
Dr. Katz to be a number of "mismatches," suggesting that data
may have been entered erroneously in one study, or the other, or
both.
c. Treatment of Unknowns
Dr. Katz presented several tables showing what he described
«i BY w
as "missing values.” In his judgment, deletion of all cases
with such missing values was necessary, thereby rendering
any regression analysis virtually impossible.
3. Dr. Ratz' Conclusion
Dr. Ratz hypothesized that the apparent racial disparities
reflected in the PRS and CSS research might be explained if
it were shown that white victim cases generally were more
aggravated than black victim cases. Dr. Katz introduced a
number of tables to establish that, as a whole, white victim
cases in Georgia are more aggravated than black victim cases.
Dr. Ratz admitted, however, that he had performed no
analysis of similarly-situated black and white victim cases,
controlling for the level of aggravation, nor had he performed
any other analyses controlling for any variables that eliminated,
or even diminished, the racial effects reported by Baldus and
Woodworth.
B. Dr. Roger Burford
4 1. Area of Expertise
w Dr. Burford testified that he was a Professor of Quanti-
tative Methods at Louisiana State University. He was also
vice-president of a private research and consulting firm
that conducts economic, market and public opinion research
requiring extensive use of empirical methods. In his capacity
as a consultant, Dr. Burford has testified as an expert
witness between 100 and 150 times. eee
Dr. Burford has taught courses in sampling theory,
research methods, multivariate analysis, computer simulation
“82 «
modelling, and linear programming. He has published three
textbooks on statistics and a wide range of articles on regional
economic growth, computer simulation methods, and other topics.
Petitioner stipulated to Dr. Burford's expertise in the
area of statistical analysis. On voir dire, Dr. Burford admitted -- —-
that apart from his participation in the statistical analysis of
one jury pool, he has had virtually no professional exposure to
the criminal justice system and was not qualified as an expert
in this area.
2. Pitfalls in the Use of Statistical Analysis
Dr. Burford testified that his involvement in the review
of the PRS and CSS studies was largely as a consultant to
Dr. Ratz. Dr. Burford conducted almost no independent analysis
of these studies, but rather reviewed materials generated
by Dr. Katz. Dr. Burford believed that Dr. Katz' approach
to the PRS and CSS studies was reasonable, and testified
that it "could be useful” in evaluating these studies.
The remainder of Dr. Burford's testimony focused upon-the
general limitations of statistical analysis. He suggested
that statistics can provide evidence, but cannot constitute
"proof in a strict sense.” Dr. Burford warned that regres-
sion analysis can be misused, especially if the underlying
data are invalid. Data sets rarely meet all of the assump-
tions ideally required for the use of regression analysis.
Possible multicolinearity, he warned, could confound regression
results, although use of factor analysis admittedly reduces
-—83-
the problems of multicolinearity. Dr. Burford also cautioned
that step-wise regressions can result in an overfitted model
and can thus be misleading.
3. Dr. Burford's Conclusions
Dr. Burford did not offer any ultimate conclusions on the
validity of the statistical methods used in the PRS and CSS
studies. He did acknowledge on cross—-examination that the
regressions run by Baldus and Woodworth were "pretty conclusive.”
III. Petitioner's Rebuttal Case
A. Professor Baldus
On rebuttal, Professor Baldus disposed of several issues
raised by respondent. He first addressed the questions raised
by Dr. Katz concerning certain of his coding conventions,
especially the failure to distinguish in his machine analysis
between items coded 1 ("expressly stated in the file") and items
coded 2 ("suggested by the file") on the questionnaires. Baldus
testified that to examine the effect of this challenged practice,
he had completed additional analyses in which, for 26 aggravating
and mitigating variables, he recoded to make distinctions
between items coded 1 and 2, rather than collapsing the two
categories into one. He found that the distinctions had no
effect on the racial coefficients, and only marginally affected
the level of statistical significance.
Turning to a criticism that, in multiple victim cases,
information had not been coded concerning the characteristics
of the second and successive victims, Professor Baldus again
- B&
testified that he had conducted supplemental analyses to
consider the problem. For the eight principal victim variables
on which the questionnaires or case summaries contained sufficent
information, he recoded the computer for each of the 50-60 |
multiple victim cases, and then reran his analyses. The
race-of-victim effects dropped by one-half of one percent,
Baldus reported, and the race-of-defendant effects remained
unchanged. :
Baldus next discussed Dr. Katz' table identifying "missing
values.” He explained that, in his 230+ variable models, the
table would reflect approximately 30 missing values per 230-
variable case. Baldus noted that much of the data that truly
was missing was absent, not from Baldus' own data-gathering
effort, but from the magnetic tape provided by the Department
of Offender Rehabilitation. Moreover, most of such missing data
related to characteristics of the defendants which had not been
used in Professor Baldus' analyses in any event. Other data
"missing" from one variable was in fact suppied by data present
somewhere else in the questionnaire in another variable.
More centrally, Professor Baldus testifed that his entire
philosphy in the coding of unknown values, fully consistent
with most of the relevant professional literature, was to
assume that wherever an item was coded "unknown" or missing
because of an absence of information in the files, the decision-
maker, prosecutor or jury, necessarily had been forced to treat
that factor as nonexistent. The basis for that assumption, he
explained, is that rational judgments normally are made upon
“85 =
— what is known; information not available cannot normally affect
a decision. Moreover, Baldus testified that he knew of nothing
to suggest any systematic bias created by missing values or
unknowns that might possibly affect the racial disparities
observed.
As a further safeguard on this point, however, Baldus.
testified about a table reporting regression results, controlling °
for the racial factors as well as nine statutory aggravating
circumstances and prior record, in which he had deleted all
cases with missing values, a method recommended by Dr. Katz.
(See DB 120). The only effect of the deletions was to increase
the race-of-victim coefficient by .02. The race-of-defendant
coefficient remained the same, although somewhat less statisti-
cally significant (compare DB 78 with DB 120). A similar re-
sult occurred after reanalysis of the table reported in DB 121.
Baldus conducted yet another alternative analysis in which
he assumed that every missing value would, if identified, run
counter to his hypothesis, diminishing the racial effects.
Recalculating his DB 78 under those extreme "worst case"
assumptions, Baldus found that the race-of-victim coefficient
did drop from .07 to .05, but it remained highly statistically
significant at the 1-in-100 level. (See DB 122). The race-of-
defendant coefficient dropped from .04 to .03, and remained
non-significant. (See also DB 123).
To counter Dr. KRatz' further suggestion that the lack of
information on the race of the victim in a small number of
cases might be important, Professor Baldus recoded those cases,
- SB =
assigning black victim variables in death cases and white victim
variables in life cases. Once again, the result of this "worst
case" analysis revealed persistent race-of-victim effects,
with a very high degree of statistical significance. (See DB
124).
Finally, in addressing Dr. Katz' mismatch” tables
for the PRS and CSS files, Professor Baldus observed that some
of the "mismatches” simply reflected Dr. Katz' misunderstanding
of differences in variable definition between the two files.
Other "mismatches® occurred because Dr. Katz identified as
errors certain discrepancies between the cases of co-defendants,
unmindful that cases of co-defendants often reflect different or
inconsistent factual versions of a single crime. In those
mismatches where genuine discrepancies existed, Baldus noted, an
analysis of the case summaries revealed that the error rate was
higher in the PRS and lower in the CSS (on which most of the
analyses relied.) Finally, Baldus noted that Dr. Ratz had made
no assertion that any systematic bias had been introduced by these
few random errors.
B. Dr. Woodworth
1. Statistical Issues
Dr. Woodworth on rebuttal spoke to several additional
minor points raised by the State. He first addressed the
observation of Dr. Katz that an estimated eleven cases existed
in the CSS in which penalty trials had occurred but had not been
identified by Baldus' coders. Katz speculated that these
eleven omissions might have adversely affected the weighting
- BY
a inves ci cA op A inn a or i Senda otal bn St 811 48 Fe tows Sup seagreirn we em 8 0 Ch — sar m— — a. >
scheme for the CSS sample. Dr. Woodworth acknowledged that
eleven missing penalty trial cases would have affected the
weighting scheme; however, he calculated the degree of likely
impact as affecting the third decimal place of the racial
coefficients (e.g. , .071 vs. .074.)
Dr. Woodworth confirmed Professor Baldus' testimony that,
from a statistical standpoint, the few inevitable, but insignifi-
cant errors that may have been identified by Dr. Katz' cross-
matching procedures could only have affected the racial coeffi-
cient if they had been systematic, rather than random, errors.
Dr. Woodworth next addressed an implication by Dr. Katz
that since the level of statistical significance of the CSS
racial disparities had dropped upon the introduction of
additional variables to the model, the introduction of still
further variables would eliminate statistical significance
entirely. Through the use of a simple figure (see GW 6), Dr.
Woodworth demonstrated the fallacy in Dr. Katz' reasoning,
explaining that there was no statistically valid way to predict
the effect of the addition of additional variables to a model.
2. Warren McClesky's Level of Aggragation
Finally, in response to a a question posed to him by the
Court on petitioner's case-in-chief, Dr. Woodworth reported
that, on the aggravation scale reported at GW 5A and 5B, Warren
McClesky's case fell at the .52 level (see GW8). At that
level, Dr. Woodworth explained, the disparities in black
defendant cases dependent upon whether the victim was white or
black was approximately 22 points.
- 88 -
Dr. Woodworth testified that, to arrive at the best overall
figure measuring the likely impact of Georgia's racial dispari-
ties on a case at petitioner's level of aggravation, he had
employed a triangulation approach, using three separate measures.
From GWS8, he drew a measure of 22 points; from DB 90, at level
5 where petitioner's case is located, the disparity was 18
points; from Dr. Woodworth's recalculation of logistic proba-
29/
bilities, the disparity in the midrange model was 23
points. Dr. Woodworth noted this "almost complete convergence”
suggested a measure of the racial impact in a case at petitioner's
level of over 20+ percentage points.
$40 Dr. Richard Berk
r
1. Areas of Expertise
Petitioner's final rebuttal witness was Dr. Richard Berk,
Professor of Sociology at the University of California at
Santa Barbara. Dr. Berk has an undergraduate degree from Yale
and a Ph.D from John Hopkins University. (See RB 1.) Dr. Berk
has taught courses in econometrics, statistics, and research |
hh design, and has published extensively in the areas of criminal
justice statistics and sentencing issues. Dr. Berk has served
as a consultant to the National Institute of Justice, to the
29/ Both Baldus and Woodworth, as well as Dr. Burford testified
that this or a similar model, which did not contain the hundreds
of variables that might raise problems of multicolinearity, was
probably the best model for measuring possible racial effects.
“50 =
California Attorney General's Committee on Statistics, and to
the counties of Baltimore and Santa Barbara, for which he has
designed jury selection systems. Dr. Katz has also served on a
select panel of the National Academy of Science which, during
the past two years, has examined virtually every major empirical
sentencing study ever conducted and formulated criteria for
the conduct of such cavegtah after hearing his testimony,
the Court accepted Dr. Berk as an expert in statistics and in
sociology.
2. Quality of Petitioner's Studies
Dr. Berk testified that he had received a copy of the
magnetic tape containing- the PRS and CSS studies some ten months
prior to his testimony. During the intervening period, he
had conducted some preliminary analyses on the data and had
reviewed the Baldus and Woodworth preliminary report, as well as
Dr. Katz' written evaluation of that report. Dr. Berk found both
the PRS and CSS to be studies of "high credibility." He testified
that among the hundreds of sentencing research efforts he had
reviewed for the National Academy of Sciences, the Baldus and
Woodworth studies were "far and away the most complete," that
they employed "state of the art diagnostics," that the data
quality was "very salient" -- in sum that he knew of no better
published studies anywhere on any sentencing issue. Dr. Berk also
commented favorably on such features of the studies as the
30/ The report of the Special Committee has been published as
RESEARCH ON SENTENCING: THE SEARCH FOR REFORM (1983).
- B80 -
comprehensive use of alternative statistical analyses, the
computer system employed, and Baldus' assumptions about the
proper treatment of "unknowns" or "missing values." Moreover,
Dr. Berk testified that after reading the Katz report and
hearing the testimony of Dr. Ratz and Dr. Burford, he came
away even more persuaded by the strength and reliability of
petitioner's studies.
3. The Objections of Dr. Katz and Dr. Burford
Dr. Berk testified that he concurred with Dr. Burford's
testimony listing possible pitfalls in the use of statistical
analysis; however, Berk saw no evidence that the Baldus and
Woodworth studies had fallen victim to any of these errors,
and he did not understand Dr. Burford to have identified any
serious weaknesses in either of the studies.
Turning to Dr. Katz' testimony, Dr. Berk first addressed
the possible effects of multicolinearity on the racial dispari-
ties observed by Baldus. He noted that the diagnostics that had
been performed by Dr. Woodworth failed to reveal serious multico-
linearity in the studies, but that such effects, even if serious,
could have only dampened or diminished the racial effects.
Dr. Berk faulted the logic of Dr. Katz' suggestion that the
more aggravated general level of white victim cases was a
plausible hypothesis to explain the racial disparities observed.
He noted that the important question was how white and black
victim cases were treated at similar levels of aggravation; while
“BY -
Dr. Ratz had not even attempted to address this latter question,
petitioner's experts had done so, and he found convincing Dr.
Woodworth's proof that at similar levels of aggravation, marked
differences were clear in the treatment of cases by race
of the victim.
Addressing Professor Baldus' coding .of "unknowns," Dr. Berk
- observed that the National Academy of Sciences committee had
discussed this very question, concluding as did Professor Baldus
that the proper course was to treat unknown data as having no
influence on the decisionmaker. Berk further observed, respect-
ing the "missing data” problem, that missing data levels no
greater than 10 to 15 percent of the total (the PRS and CSS
figures were 6 percent or less) "almost never makes a difference”
in the outcome of statistical analysis. Moreover, were such
missing data having a serious effect on the studies, a predic=—-
table symptom would be a skewing or inverting of other anticipated
effects, such as those of powerful determinants of sentence such
as the statutory aggravating circumstances. In Baldus' studies,
however, no such symptons appeared, leading Dr. Berk to discount
Rl .. missing data as a serious problem.
D. The Lawyer's Model
Several weeks after the August, 1983 evidentiary hearing,
Professor Baldus submitted an affidavit describing in detail
the results of an analysis employing a model developed by the
gs Court, including factors selected as likely to predict whether a
homicide case would receive a capital sentence. The race-of-
- BI
victim disparities reported by Professor Baldus upon completion
of extensive analyses using the Lawyer's Model were fully
consistent with the results presented during the evidentiary
hearing:
"Phere are persistent race of victim effects
and when the analysis focuses on the more
aggravated cases, where there is a substan-
tial risk of a death sentence, those effects
increase substantially.
Baldus Aff., at 10. See id., at 19.
-i B83 -
CERTIFICATE OF SERVICE
I hereby certify that I am one of the attorneys for
petitioner-appellant in this action, and that I have caused a
copy of the annexed First Supplemental Brief for Petitioner-
Appellant On Rehearing En Banc to be served on respondent
before 3:00 p.m. on Wednesday, December 28, 1983, by hand,
addressed as follows:
William B, Hill, Jr., Esq.
Assistant Attorney General
132 State Judicial Bldg.
40 Capitol Square S.W.
Atlanta, Georgia 30334
Done this 28th day of December, 1983
(onl