General - Spencer v. Zant Pleadings

    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