Federal District Judge Post-Hearing Orders

    EL AQ 72A 
(Rev. 8/82) | 

   

  

— -— 

AD U3 ORIGINAL nt 

    

FILED IN CLERK'S OFFICE 
- D.C. - Atlanta 

UG 51983 

}, ZARTER, Clerk 

Gg Clesk 

IN THE UNITED STATES DISTRICT COURT \ 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION " BE    

  

WARREN McCLESKEY, : 

SM
e ~~
 

Petitioner, 

CIVIL ACTION 
NO. C81-2434A 

VS. 

WALTER D. ZANT, Warden, 

Respondent. 

ORDER 

7 

Before the court is respondent's motion for extension of 

time in which to complete criticisms of the report of peti- 

tioner's expert, Professor David C. Baldus, and petitioner's 

opposition to the motion. : 

The respondent is ORDERED to deliver to petitioner's 

counsel by close of business today, August 3, 1983, a list of 

criticisms or objections identified to date. Further, the 

respondent is ORDERED to hand deliver to petitioner's counsel 

by close of business Friday, August 5, 1983 a further listing 

of errors and objections identified to that date. 

The court is not limiting the state to the objections and 

criticisms listed by Friday, August 5. However, concomitantly, 

the court may also grant the petitioner leave to supplement his 

tables after the hearing before this court if such supple- 

mentation is necessary to answer or correct criticisms and 

objections recently discovered.  



     
AO 72A 
(Rev. 8/82), 

or 

  

    

The court notes that it is not requiring that the state at 

this time inform petitioner as to why petitioner's information 

does not support his claim. The court is only requiring the 

respondent to notify the petitioner of errors in the data base 

or in the process which might be so serious as to prevent this 

court's determination of petitioner's claim on the merits. 

In sum, respondent's motion for extension of time is 

GRANTED IN PART and DENIED IN Pag) 
=r 
<7 —day of 2gust, 1983. 

rt — 

J/ OWEN FORRESTER 

UNITED STATES DISTRICT JUDGE 

IT IS SO ORDERED this 

  

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

: Gong vi Wh Ly, eT 

WARREN McCLESKEY, 
oo aH 0 

Petitioner, 

—~against- : CIVIL ACTION 
; : NO. C81-2434A 

WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification 

Center, 

Respondent. 

  

  

PRE-HEARING ORDER 

The Court has directed a further, limited hearing in 

the above-captioned case, to be held SATII 7, 1983. 

IT IS HEREBY ORDERED, that statistical experts for 

petitioner and ‘respondent should be prepared to address the 

following questions propounded by the Court: 

1. What are the mathematical, statistical and 

practical effects of "controlling for variables" or including 

those additional variables in a regression equation, especially 

where the outcome of interest is dichotomous (e.g., life sentence 

or death sentence)? 

2. What does the "u" refer to in the following multiple 

regression formula -- y = a + b, x + b. x, + u—- and what is the 

role of the "u" concept in multivariate Znafysis? 

3. What are the mathematical, statistical and practical 

reasons for employment of a "dummy variable" in a regression formua, 

and how does it affect the measurement of the influence of that 

variable? 

4. Do the coefficients reported for the variables in a 

multiple regression analysis reflect an actual difference in the 

outcome of interest (e.g., do the race of victim coefficients rep- 

resent an actual difference in the death-sentencing rate) or 

 



  

rather a disparity? 

The evidentiary hearing to be held October 17, 1983 

does not reopen to either party the opportunity to present sub- 

stantive evidence on the merits of petitioner's constitutional 

claims. It will be limited to testimony on the mathematical 

and statistical issues outlined in this order. 

IT IS SO ORDERED, this J - day of October, 1983. 

LT 
  

J. JOWEN FORRESTER, ma 
UNITED STATES DISTRICT COURT 

 



a
 

\ N 
W
w
 i FILED IN CLERK'S OFFICE eo) oR = 

U.G.D.C. - Atlanta 

    

Pe X BN nb 

NAY 
AY UNITED STATES DISTRICT COURT Ap 51984 
wf . NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION BEN 

4 By: 
WARREN McCLESKEY, \ 

Petitioner, X 

X CIVIL ACTION FILE 
vs. X , v4 

X g NO. C81-2434A re. 
WALTER D. ZANT, X 

X 
Respondent. X > 

| X 
  

PROTECTIVE ORDER 
  

Petitioner, WARREN McCLESKEY, through his at- 

torneys, has transmitted to respondent, Walter D. Zant, and 

his attorneys, certain data bases -- including data and 

information stored on computer cards and two magnetic tapes, 

comprising the data and information gathered by petitioner's 

experts, Professors David C. Baldus, George Woodworth and 

Charles Pulaski, in connection with the Georgia Procedural 

Reform Study and the Georgia Charging and Sentencing Study -- 

as directed by this Court pursuant to respondent's Motion for 

Discovery filed on November 16, 1982, it is hereby 

ORDERED, that respondent, attorneys for respondent, 

and all other employees, contractors, or agents of the respon- 

dent, including any eperts employed by respondent in this 

action, are hereby enjoined from publishing, reproducing, 

transmitting, disseminating or otherwise using these data bases 

for any. purpose whatsoever, except for the litigation of this 

 



  

case or any other case in which a death-sentenced petitioner 

asserts constitutional claims similar to those at issue in 

this litigation and relies on, in whole or in part, the data 

and information gathered by Professors Baldus, Woodworth, 

and Pulaski, without the express written permission of be 

Professors Baldus, Woedworth or Pulaski; and it is further 

ORDERED that all persons BTPRLAE AcrEES to the data 

bases, including respondent's trial experts, Dr. Joseph Katz 

and Dr. Roger Burford, shall be bound by this order, and, as 

to any persons who are granted access to the data bases subse- 

guent to the entry of this order, prior to their being granted 

access, they shall be given a copy of this order, and shall 

certify their agreement to be bound by this order by signing a 

copy of the attached Ta A. 

This OS i , 1984. 

be F- 
UNITED STATES DISTRICT JUDGE 

    

  

CONSENTED TO: 

     ETH WESTMORELAND 

Counsel for Respondent 

Robart sh Stpen 
  

ROBERT H. STROUP 

Counsel for DE) rad : 

 



  

ei : "EXHIBIT A" ; ak 
a 
38. 

w 

  

By signing this document, I hereby certify 

that I have read the protective order entered by the 

Court in McCleskey v. Zant, Civil Action No. C81-2434A.   

I understand said order and agree to abide by its terms. 

This day of 

Pi 4 

+ 1983,   
  

  

Signature 

 



  

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

CIVIL ACTION FILE 

vs. 

NO, C81-2434A 
WALTER D. ZANT, 

Respondent. 

  

PROTECTIVE ORDER 
  

Petitioner, WARREN McCLESKEY, through his at- 

torneys, has transmitted to respondent, Walter D. Zant, and 

his attorneys, certain data bases -- including data and 

information stored on computer cards and two magnetic tapes, 

combrising the data and information gathered by petitioner's 

experts, Professors David C. Baldus, George Woodworth and 

Charles Pulaski, in connection with the Georgia Procedural 

Reform Study and the Georgia Charging and Sentencing Study -- 

as directed by this Court pursuant to respondent's Motion for 

Discovery filed on November 16, 1982, it is hereby 

ORDERED, that respondent, attorneys for respondent, 

and all other employees, contractors, or agents of the respon- 

dent, including any e -perts employed by respondent in this 

action, are hereby enjoined from publishing, reproducing, 

transmitting, disseminating or otherwise using these data bases 

for any purpose whatsoever, except for the litigation of this 

 



  

case or any other case in which a death-sentenced petitioner 

asserts constitutional claims similar to those at issue in 

this litigation and relies on, in whole or in part, the data 

and information gathered by Professors Baldus, Woodworth, 

and Pulaski, without the SXpPLes ss written permission of 

Professors Baldus, Woodworth or Pulaski; and it is further 

ORDERED that all persons granted access to the data 

bases, including respondent's trial experts, Dr. Joseph Katz 

and Dr. Roger Burford, shall be bound by this order, and, as 

to any persons who are granted access to the data bases subse- 

guent to the entry of this order, prior to their being granted 

access, they shall be given a copy of this order, and shall 

certify their agreement to be bound by this order by signing a 

copy of the attached "Exhibit A." 

This dav of ; 1984, 
  

  

  

UNITED STATES DISTRICT JUDGE 

CONSENTED TO: 

| EAL Lovie Laat 
MARY BETH WESTMORELAND 

Counsel for Respondent 

Ro bac sh pe 

  

  

ROBERT H. STROUP 

Counsel for POP il 

 



  

"EXHIBIT A"   

By signing this document, I hereby certify 

that I have read the protective order entered by the 

Court in McCleskey v. Zant, Civil Action No. C81-2434A.   

I understand said order and agree to abide by its terms. 

“—~ v 

This day of y- $983.   
  

  

Signature 

 



    

  

AQ 72A 
(Rev. 8/82)    “ 

  
IN THE UNITED STATES DISTRICT COURT Vile iN CLERK'S OF 

| FOR THE NORTHERN DISTRICT OF GEORGIA TED ME pice | ATLANTA DIVISION igi 
| 

Fr'3 21984 

| WARREN McCLESKEY, . 

BEN (LARTER. Clerk 

Petitioner, gy. 

[1
] 

eo
 

Ceputy Clerk 
VS. : CIVIL ACTION 

NO. C81=2434A 

WALTER D. ZANT,   
Respondent. 

ORDER OF THE COURT 
  

Petitioner Warren McCleskey was convicted of two counts of 

armed robbery and one count of malice murder in the Superior 

Court of Fulton County on October 12, 1978. The court sentenced 

McCleskey to death on the murder charge and to consecutive life 

sentences, to run after the death sentence, on the two armed 

robbery charges. On automatic appeal to the Supreme Court of 

Georgia the convictions and the sentences were affirmed. 

McCleskey vs. State, 245 Ga. 108 (1980). The Supreme Court of 
  

|! the United States denied McCleskey's petition for a writ of 

certiorari. McCleskey vs. Georgia, 449 U.S. 891 (October 6, 
  

1980). On December 19, 1980 petitioner filed an extraordinary 

motion for a new trial in the Superior Court of Fulton County. NO 

hearing has ever been held on this motion. Petitioner then filed       
 



   
AQ 72A 
(Rev. 8/82) 

  

  

    

* To 

a petition for writ of habeas corpus in the Superior Court of 

Butts County. After an evidentiary hearing the Superior Court 

denied all relief sought. McCleskey vs. Zant, No. 4909 (Sup. Ct. 
  

of Butts County, April 8, 1981). On June 17, 1981 the Supreme 

Court of Georgia denied petitioner's application for a certi- 

ficate of probable cause to appeal the decision of the Superior 

Court of Butts County. The Supreme Court of the United States 

denied certiorari on November 30, 1981. McCleskey vs. Zant, 454 
  

U.S. 1093 (1981). 

Petitioner then filed this petition for writ of habeas 

corpus on December 30, 1981. He asserts 18 separate grounds for 

granting the writ. Some of these grounds assert alleged viola- 

tions of his constitutional rights during his trial and sen- 

tencing. Others attack the constitutionality of Georgia's death 

penalty. Because petitioner claimed to have sophisticated 

statistical evidence to demonstrate that racial discrimination is 

a factor in Georgia's capital sentencing process, this court held 

an extensive evidentiary hearing to examine the merits of these 

claims. The court's discussion of the statistical studies and 

their legal significance is in Part II of this opinion. Peti- 

tioner's remaining contentions are discussed in Parts III through 

XVI. The court has concluded that petitioner is entitled to 

relief on only one of his grounds, his claim that the prosecution 

failed to reveal the existence of a promise of assistance made to 

a key witness. Petitioner's remaining contentions are without 

merit. 

  

 



    

  

AQ 72A 

(Rev. 8/82) 

  

      
  

I. DETAILS OF THE OFFENSE. 

On the morning of May 13, 1978 petitioner and Ben Wright, 

Bernard Dupree, and David Burney decided to rob a jewelry store 

in Marietta, Georgia. However, after Ben Wright went into the 

store to check it out, they decided not to rob it. The four then 

rode around Marietta looking for another suitable target. They 

eventually decided to rob the Dixie Furniture Store in Atlanta. 

Each of the four was armed. The evidence showed that McCleskey 

carried a shiny nickel-plated revolver matching the description 

of a .38 caliber Rossi revolver stolen in an armed robbery of a 

grocery store a month previously. Ben Wright carried a sawed-off 

shotgun, and the other two carried pistols. McCleskey went into 

the store to see how many people were present. He walked around 

the store looking at furniture and talking with one of the sales 

clerks who quickly concluded that he was not really interested in 

buying anything. After counting the people in the store, 

petitioner returned to the car and the four men planned the 

robbery. Executing the plan, petitioner entered the front of the 

store while the other three entered the rear by the loading dock. 

Petitioner secured the front of the store by rounding up the 

people and forcing them to lie face down on the floor. The 

others rounded up the employees in the rear and began to tie them 

up with tape. The manager was forced at gunpoint to turn over 

the store receipts, his watch, and $6.00. Before the robbery 

could be completed, Officer Frank Schlatt, answering a silent 

alarm, pulled his patrol car up in front of the building. He  



  

   AQ 72A 
(Rev. 8/82) 

  

  

    

entered the front door and proceeded down the center aisle until 

he was almost in the middle of the store. Two shots then rang 

out, and Officer Schlatt collapsed, shot once in the face and 

once in the chest. The bullet that struck Officer Schlatt in the 

chest ricocheted off a pocket lighter and lodged in a nearby 

sofa. That bullet was recovered and subsequently determined to 

have been fired from a .38 caliber Rossi revolver. The head 

wound was fatal. The robbers all fled. Several weeks later 

petitioner was arrested in Cobb County in connection with another 

armed robbery. He was turned over to the Atlanta police and gave 

them a statement confessing participation in the Dixie Furniture 

Store robbery but denying the shooting. 

Although the murder weapon was never recovered, evidence was 

introduced at trial that petitioner had stolen a .38 caliber 

Rossi in an earlier armed robbery. The State also produced 

evidence at trial that tended to show that the shots were fired 

from the front of the store and that petitioner was the only one 

of the four robbers in the front of the store. The State also 

introduced over petitioner's objections the statements petitioner 

had made to Atlanta police. Finally, the State produced testi- 

mony by one of the co-defendants and by an inmate at the Fulton 

County Jail that petitioner had admitted shooting Officer Schlatt 

and had even boasted of it. In his defense petitioner offered 

only an unsubstantiated alibi defense. 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

  

      

The jury convicted petitioner of malice murder and two 

counts of armed robbery. Under Georgia's bifurcated capital 

sentencing procedure, the jury then heard arguments as to the 

appropriate sentence. Petitioner of fered no mitigating evidence. 

After deliberating the jury found two statutory aggravating 

circumstances -- that the murder had been committed during the 

course of another capital felony, an armed robbery; and that the 

murder had been committed upon a peace officer engaged in the 

performance of his duties. The jury sentenced the petitioner to 

death on the murder charge and consecutive life sentences on the 

armed robbery charges. 

II. THE CONSTITUTIONALITY OF THE GEORGIA DEATH PENALTY. 

A. An Analytical Framework of the’'Law. 

Petitioner contends that the Georgia death penalty statute 

is being applied arbitrarily and capriciously in violation of the 

Eighth and Fourteenth Amendments to the United States Consti- 

tution. He concedes at this level that the Eighth Amendment 

issue has been resolved adversely to him in this circuit. As a 

result, the petitioner wishes this court to hold that the 

application of a state death statute that permits the imposition 

of capital punishment to be based on factors of race of the 

defendant or race of the victim violates the equal protection 

clause of the Fourteenth Amendment. 

It is clear beyond peradventure that the application of a 

statute, neutral on its face, unevenly applied against minori- 

ties, is a violation of the equal protection clause of the 

  

 



    

  

AQ 72A 
(Rev. 8/82) 

  
  

Fourteenth Amendment. Yick Wo vs. Hopkins, 118 U.S. 356 (1886). 
  

The more difficult question presented is why under the facts of 

this case the petitioner would be denied equal protection of the 

law if he is sentenced to death because of the race of his 

victim. This quandry has led the Eighth Circuit to find that a 

petitioner has no standing to raise this claim as a basis for 

invalidating his sentence. Britton vs. Rogers, 631 F.2d 572, 577 
  

n. 3. (8th Cir. 1980), cert. denied, 451 U.S. 939 (l98]l). 
  

while this circuit in Spinkellink vs. Wainwright, 578 F.2d 
  

582 (5th Cir. 1978), reh'g denied, 441 U.S. 937, application for 
  

  

stay denied, 442 U.S. 1301 (1979), seemed to give lip service to 
  

  
this same point of view by approving the proposition that a 

district court "must conclude that the focus of any inquiry into 

the application of the death penalty must necessarily be limited 

to the persons who receive it rather than their victims," id. at 

614 n. 39, the court in Spinkellink also adopted the position 
  

that a petitioner such as McCleskey would have standing to sue in 

an equal protection context: 

Spinkellink [petitioner] has standing to 
raise the equal protection issue, even though 
he is not a member of the class allegedly 
discriminated against, because such dis- 
crimination, if proven, impinges on his 
constitutional right under the Eighth and 
Fourteenth Amendments not to be subjected to 
cruel and unusual punishment. See Taylor vs. 
Louisiana, supra, 419 U.S. at 526. 

  

  

Id. at 612 n. 36. This footnote in Spinkellink warrants close 
  

examination. In Taylor vs. Louisiana, 419 U.S. 522 (1975), the 
  

Supreme Court held that a male had standing to challenge a state  



   
AO 72A 
(Rev. 8/82) 

  

    

statute providing that a woman should not be selected for jury 

service unless she had previously filed a written declaration of 

her desire to be subject to jury service. The Court in Taylor 

cited to Peters vs. Kiff, 407 U.S. 493 (1972), to conclude: 
  

"Taylor, in the case before us, was similarly entitled to tender 

and have adjudicated the claim that the exclusion of women from 

jury service deprived him of the kind of factfinder to which he 

was constitutionally entitled." Id. at 526. In Peters the 

Supreme Court rejected the contention that because a petitioner 

is not black, he has not suffered any unconstitutional dis- 

crimination. The rejection of the argument, however, was based 

not on equal protection grounds, but upon due process grounds. 

See 407 U.S. at 496-97, 497 n. 5, 501, 504; id. at 509 (Burger, 

C.J., dissentingy. 

Thus, for Spinkellink to articulate an equal protection 
  

standing predicate based upon Sixth Amendment and due process 

cases can be characterized, at best, as curious. Furthermore, 

not only does it appear that case law in this circuit subsequent 

to Spinkellink assumes that a contention similar to that advanced 
  

by petitioner here is cognizable under equal protection, see, 

e.g.J Adams vs. Wainwright, 709 F.2d 1443, 1449-50 (llth Cir.), 
  

reh'qg en banc denied, 716 F.2d 914 (llth Cir. 1983); Smith vs. 
  

  

Balkcom, 671 F.24 858 (5th Cir. 1982) (Unit B); but it appears 

that this circuit is applying equal protection standards to 

Eighth Amendment challenges of the death penalty. See, e.g., 
  

Adams vs. Wainwright, supra. Accord, Harris vs. Pulley, 692 F.2d 
  

  

 



   
AQ 72A 

{Rev. 8/82) 

  

    

\ 

  

1189, 1197-98 (9th Cir. 1982), reversed and remanded on other 

grounds, No. 82-1095 (U.S. Jan. 23, 1984). Indeed, in Spinkel- 
  

link itself, the court adopted an analytical nexus between a 

cruel and unusual punishment contention and a Fourteenth Amend- 

ment equal protection evidentiary showing: 

[Tlhis is not to say that federal courts 
should never concern themselves on federal 
habeas corpus review with whether Section 
921.141 [Florida's death penalty statute] is 
being applied in a racially discriminatory 
fashion. If a petitioner can show some 
specific act or acts evidencing intentional 
or purposeful racial discrimination against 
him, see Village of Arlington Heights vs. 
Metropolitan Housing Development Corp., 429 
U.S. 252 (1977), either because of his own 
race or the race of his victim, the federal 
district court should intervene and review 
substantively the sentencing decision. 

  

  

Spinkellink, 578 F.2d at 614 n. 40. 
  

Principles of stare decisis, of course, mandate the con- 
  

clusion that petitioner has standing to bring forth his claim. 

Furthermore, under stare decisis, this court must strictly follow 
  

the strictures of Spinkellink and its progeny as to standards of 
  

an evidentiary showing required by this petitioner to advance 

successfully his claim. 

Were this court writing on a clean slate, it would hold that 

McCleskey would have standing under the due process clause of the 

Fourteenth Amendment, but not under the equal protection clause 

or the Eighth Amendment, to challenge his conviction and sen- 

tenced if he could show that they were imposed on him on account 

of the race of his victim. From a study of equal protection 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

   

    

jurisprudence, it becomes apparent that the norms that underlie 

equal protection involve two values: (i) the right to equal 

treatment is inherently good; and (ii) the right to treatment as 

an equal is inherently good. See L. Tribe, American Constitu- 
  

tional Law, §l6-1, at 992-93 (1978). In this case, however, the 
  

evidence shows that the petitioner is being treated as any member 

of the majority would, or that petitioner's immutable charac- 

teristics have no bearing on his being treated differently from 

any member of the majority. Thus, with reference to his argument 

that he is being discriminated against on the basis of the race 

of his victim, equal protection interests are not being impli- 

cated. 

Petitioner also fails to state a claim under the Eighth 

Amendment. It is clear from the decisions of the Supreme Court 

that the death penalty is not per se cruel and unusual in 

violation of the Eighth Amendment. Prior to Furman vs. Georgia, 
  

408 U.S. 238 (1972), the cruel and unusual punishments clause was 

interpreted as applicable to contentions that a punishment 

involved unnecessary pain and suffering, that it was so unique as 

not to serve a humane purpose, Or sO excessive as not to serve a 

valid legislative purpose. See Furman, 408 U.S. at 330-33 
  

{Marshall, J., concurring). In other words, Eighth Amendment 

jurisprudence prior to Furman entailed an inquiry into the nexus 

between the offense and punishment; that punishment which was 

found to be excessive was deemed to violate Eighth Amendment 

concerns. The Supreme Court has determined as a matter of law  



    

  

AQ 72A 
(Rev. 8/82) 

  

    

    

that where certain aggravating features are present the in- 

fliction of the death penalty is not violative of the Eighth 

Amendment. Gregg vs. Georgia, 428 U.S. 153 (1976). In the 
  

instant case, petitioner's race of the victim argument does not 

address traditional Eighth Amendment concerns. His argument does 

not entail -- nor could he seriously advance -- any contention 

that his penalty is disproportionate to his offense, that his 

penalty constitutes cruel and unusual punishment, or that his 

penalty fails to serve any valid legislative interest. 

What petitioner does contend is that the Georgia system 

allows for an impermissible value judgment by the actors within 

the system -- that white life is more valuable than black life -- 

and, as a practical matter, that the Georgia system allows for a 

double standard for sentencing. Certainly, such allegations 

raise life and liberty interests of the petitioner. Furthermore, 

such allegations speak not to the rationality of the process but 

to the values inherent in the process. In other words, it is the 

integrity, propriety, or "fairness" of the process that is being 

questioned by petitioner's contention, and not the mechanics or 

structure of the process. Thus, petitioner's allegation of an 

impermissible process speaks most fundamentally to Fourteenth 

Amendment due process interests, rather than Eighth Amendment 

interests that traditionally dealt with "cruel and unusual” 

contexts. 

For all its consequences, "due process" 
has never been, and perhaps can never be, 
precisely defined. "[Ulnlike some legal 
rules," this Court has said, due process "is 

lO  



    

  

ori EA ® 
(Rev. 8/82) : 

not a technical conception with a fixed 

content unrelated to time, place and cir- 

cumstances." Cafeteria Workers vs. McElroy, 

367 U.S. 886, 895. Rather, the phrase 

expresses the requirement of "fundamental 

fairness," a requirement whose meaning can be 

as opaque as its importance is lofty. 

Applying the Due Process Clause is therefore 

an uncertain enterprise which must discover 

what "fundamental fairness" consists of in a 

particular situation by first considering any 

relevant precedents and then by assessing the 

several interests that are at stake. 

  

Lassiter vs. Department of Social Services, 452 U.S. 18, 24-25 
  

| (1981). It is clear that due process of law within the meaning 

of the Fourteenth Amendment mandates that the laws operate on all 

alike such that an individual is not subject to an arbitrary 

exercise of governmental power. See, e.g., Leeper vs. Texas, 139 
  

U.S. 462, 467-68 (1891); Hurtado vs. California, 110 U.S. 516, 
  

535-36 (1884). As Justice Frankfurter observed in Rochin vs. 
  

California, 342 U.S. 165 (1952) (footnote omitted): 
  

Regard for the requirements of the Due 
Process Clause "inescapably imposes upon this 
Court an exercise of judgment upon the whole 
course of the proceedings [resulting in a 
conviction] in order to ascertain whether 
they offend those canons of decency and 
fairness which express the notions of justice 
of English-speaking peoples even toward those 
charged with the most heinous offenses.” 
Malinsky vs. New York, supra, at 416-17. The 
standards of justice are not authoritatively 
formulated anywhere as though they were 
specifics. Due process of law 1s a sum- 
marized constitutional guarantee of respect 
for those personal immunities which, as Mr. 
Justice Cardozo twice wrote for the Court, 
are "so rooted in the traditions and con- 
science of our people as to be ranked as 
fundamental," Snyder vs. Massachusetts, 291 
U.S. 97, 105, or are "implicit in the concept 
of ordered liberty." Palko vs. Connecticut, 

302 U.s. 319, 325, 

  

  

  

-11-         
 



   
AQ 72A 

(Rev. 8/82) 

  

  

  

    

See also Peters vs. Kiff, 407 U.S. 493, 501 (1972) ("A fair trial 
  

in a fair tribunal is a basic requirement of due process.") 

(citing In Re Murchison, 349 U.S. 133, 136 (1955)). See gen- 
  

  

erally, L. Tribe, supra, §10-7, at 501-06. 

In summary, the court concludes that the petitioner's 

allegation with respect to race of the victim more properly 

states a claim under the due process clause of the Fourteenth 

Amendment. The allegation is that the death penalty was imposed 

for a reason beyond that consented to by the governed and because 

of a value judgment which, though rational, is morally imper- 

missible in our society. As such, McCleskey could fairly claim 

that he was being denied his life without due process of law. 

Although he couches his claims in terms of "arbitrary and 

capricious," he is, to the contrary, contending not that the 

death penalty was imposed in his case arbitrarily or capriciously 

but on account of an intentional application of an impermissible 

criterion. As the Supreme Court predicted in Gregg and as 

petitioner's evidence shows, the Georgia death penalty system is 

far from arbitrary or capricious. 

This court is not, however, writing on a clean slate. 

Instead, it is obliged to follow the interpretations of its 

circuit on such claims. As noted earlier Yick Wo gives McCleskey 

standing to attack his sentence on the basis that it was imposed 

on him because of his race and Spinkellink gives him standing 
  

under the equal protection clause to attack his sentence because 

an 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

  

    

it was imposed because cf the race of his victim. McCleskey is 

entitled to the grant of a writ of habeas corpus if he estab- 

lishes that he was singled out for the imposition of the death 

penalty by some specific act or acts evidencing an intent to 

discriminate against him on account of his race or the race of 

his victim. Smith vs. Balkcom, 660 F.2d 573 (5th Cir. Unit B 
  

1981), modified in part, 671 F.2d 858 (1982); Spinkellink, supra. 
  

  

In Stephens vs. Kemp, 104 S.Ct. 562 (1983), Justice Powell, in a 
  

dissent joined in by the Chief Justice and Justices Rehnquist and 

O'Connor, made the following statement with reference to the 

Baldus study: 

Although characterized by the judges of the 
court of appeals who dissented from the 
denial of the hearing en banc as a "par- 
ticularized statistical study" claimed to 
show "intentional race discrimination," no 
one has suggested that the study focused on 
this case. A "particularized" showing would 
require -- as I understand it -- that there 
was 1ntentional race discrimination in 
indicting, trying and convicting Stephens and 
presumably in the state appellate and state 
collateral review that several times follows 
the trial. 

Id. at 564 n. 2 (Powell, J. dissenting). 

The intentional discrimination which the law requires cannot 

generally be shown by statistics alone. Spencer vs. Zant, 715 
  

P.24 1562, 1581 (llth Cir.), reh'g en banc granted, F.2d 
  

{llth Cir. 1983). Disparate impact alone is insufficient to 

establish a violation of the Fourteenth Amendment unless the 

evidence of disparate impact is so strong that the only per- 

missible inference is one of intentional discrimination. Sulli- 

-13- 

  

 



    AQ 72A 
(Rev. 8/82) 

  

  

      

van vs, Wainwright, 751 P.24 316 (llth Cir. 1983); Adams vs, 
  

  

Wainwright, 709 F.2d 1443 (11th Cir. 1983); Smith vs. Balkcom, 
  

  

671 Fr.24 858, 859 (5th Cir. Unit B), cert, denied, U.S. " 
  

103 S.Ct. 181 (1982). 

B. An Analytical Framework of Petitioner's Statistical 

Evidence. 

The petitioner does rely upon statistical evidence to 

support his contentions respecting the operation of racial 

discrimination on a statewide basis. He relies on statistical 

and anecdotal evidence to support his contentions that racial 

factors play a part in the application of the death penalty in 

Fulton County where he was sentenced. 

Statistical evidence, of course, is nothing but a form of 

circumstantial evidence. Furthermore, it 1s said "that sta- 

tistics are not irrefutable; they come in infinite variety and, 

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

their usefulness depends on all of Lhe surrounding facts and 

circumstances." Teamsters vs. United States, 431 U.S. 324, 340 
  

(1977). 

As courts have dealt with statistics in greater freguency, a 

body of common law has developed a set of statistical conventions 

which must be honored before statistics will be admitted into 

evidence at all or before they are given much weight. These 

common law statistical conventions prevail even over the con- 

ventions generally accepted in the growing community of econo- 

motricians. The first convention which has universally been 

-14- 

  

 



    

  

AO 72A | ® 
(Rev. 8/82) 

  honored in death penalty cases is that any statistical analysis 

must reasonably account for racially neutral variables which 

could have produced the effect observed. See Smith vs. Balkcom, 
  

supra; Spinkellink vs. Wainwright, 578 F.2d 582, 612-16 (5th Cir. 
  

1978), cert, denied, 440 U.S. 976 (1979); McCcorguodale vs, 
  

  

  Balkcom, 705 F.2d 1533, 1556: (llth Cir. 1983). 

| The second convention which applies in challenges brought 

| under the equal protection clause is that the statistical 

evidence must show the likelihood of discriminatory treatment by 

the decision-makers who made the judgments in question. Adams 

vs. Wainwright, supra; Maxwell vs. Bishop, 398 F.2d 138 (8th Cir. 
  

  

1968) (Blackmun, J.), vacated on other grounds, 398 U.S. 262 
  

(1970). 

The third general statistical convention is that the 

underlying data must be shown to be accurate. The fourth is that 

the results should be statistically significant. Generally, a 

statistical showing is considered significant if its "P" value is 

.05 or less, indicating that the probability that the result 

could have occurred by chance is 1 in 20 or less. Said another 

way, the observed outcome should exceed the standard error 

estimate by a factor of 2. Eastland vs. TVA, 704 F.2d 613, 622 
  

n. 12 {11th Cir. 1983). 

McCleskey relies primarily on a statistical technique known 

as multiple regression analysis to produce the statistical 

evidence offered in support of his contentions. This technique 

is relatively new to the law. This court has been able to locate     -15-   
 



   
AQ 72A 
{Rev. 8/82) 

  

only six appellate decisions where a party to the litigation 

relied upon multiple regression analysis. In two of them, the 

party relying on the analysis prevailed, but in both cases their 

showings were supported by substantial anecdotal evidence. E.g., 

Wade vs. Mississippi Cooperative Extension Service, 528 F.2d 508 
  

  

    

(5th Cir. 1976). In four of then, the party relying upon the 

technique was found to have failed in his attempt to prove 

something through a reliance on it. Generally, the failure came 

when the party relying upon multiple regression analysis failed 

to honor conventions which the courts insisted upon. Before a 

court will find that something is established based on multiple 

regression analysis, it must first De shown that the model 

includes all of the major variables likely to have an effect on 

the dependent variable. Second, it must be shown that the 

unaccounted-for effects are randomly distributed throughout the 

universe and are not correlated with the independent variables 

included. Eastland, supra, at 704. 
  

In multiple regression analysis one builds a theoretical 

statistical model of reality and then attempts to control for all 

possible independent variables while measuring the effect of the 

variable of interest upon the dependent variable. Thus, a 

properly done study begins with a decent theoretical idea of what 

variables are likely to be important. Said another way, the 

model must be built by someone who has some idea of how the 

decision-making process under challenge functions. Three kinds 

of evidence may be introduced to validate a regression model: (1) 

-16- 

  

 



    

AO 72A 
(Rev. 8/82) 

  

  

  

Direct testimony as to what factors are considered, (2) what 

kinds of factors generally operate in a decision-making process 

like that under challenge, and (3) expert testimony concerning 

what factors can be expected to influence the process under 

challenge. Eastland, supra, at 623 (quoting Baldus and Cole, 
  

Statistical Proof of Discrimination). 
  

Other cases have established other conventions for the use 

of multiple regression analysis. It will be rejected as a tool 

if it does not show the effect on people similarly situated; 

across-the-board disparities prove nothing. EEOC vs. Federal 
  

Reserve Bank of Richmond, 698 F.2d 633, 656-58 (4th Cir. 1983), 
  

    
appeal pending; Valentino vs. U.S. Postal Service, 674 F.2d 56, 
  

70 (D.C.Cir. 1982). A regression model that ignores information 

central to understanding the causal relationships at issue is 

insufficient to raise an inference of discrimination. Valentino, 
  

supra, at 71. Finally, the validity of the model depends upon a 

showing that it predicts the variations in the dependent 

variable to some substantial degree. A model which explains only 

52 or 53% of the variation is not very reliable. Wilkins vs. 
  

University of Houston, 654 F.2d 3828, 405 (3th Cir. 1981), cert, 
  

denied, 103 S.Ct. 293 (1982). 

"To sum up, Statistical evidence is circumstantial in 

character and its acceptability depends upon the magnitude of the 

disparity it reflects, the relevance of its supporting data, and 

other circumstances in the case supportive of or in rebuttal of a 

hypothesis of discrimination." EEOC vs. Federal Reserve Bank of 
  

«l7= 

  

 



    

  

AQ 72A | 
(Rev. 8/82) 

  

  

Richmond, supra, at 646-47. Where a gross statistical disparity 
  

can be shown, that alone may constitute a prima facie case of 

discrimination. This has become the analytical framework in 

cases brought under Title VII of the Civil Rights Act of 1964. 

Because Fourteenth Amendment cases have a similar framework and 

because there are relatively few such cases relying on sta- 

tistics, when appropriate the court may draw upon Title VII 

cases. Jean vs. Nelson, 711 F.2d 1455, 1486 n. 30 (llth Cir.), 
  

reh'g en banc granted, 714 F.2d 96 (1983). 
  

Generally it is said that once the plaintiff has put on a 

prima facie statistical case, the burden shifts to the defendant 

to go forward with evidence showing either the existence of a 

legitimate non-discriminatory explanation for its actions or that 

the plaintiff's statistical proof is unacceptable. Johnson vs. 
  

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

    
  

  

103 S.Ct. 293 (1982). ‘The statistics relied upon by the plain- 

tiff to establish a prima facie case can form the basis of the 

defendant's rebuttal case when, for example, the defendant shows 

that the numerical analysis is not the product of good sta- 

tistical methodology. EEOC vs, Datapoint Corp., 570 F.24 1264 
  

(Sth Cir. 1978). Said another way, a prima facie case is not 

established until the plaintiff has demonstrated both that the 

data base is sufficiently accurate and that the regression model 

has been properly constructed. Otherwise, the evidence would be 

insufficient to survive a motion for directed verdict, and this 

is the sine qua non of a prima facie case. Jean, supra, at 1487. 
  

  

«]8~-  



      
AQ 72A 

(Rev. 8/82) 

  

  

Statistics produced on a weak theoretical foundation are insuf- 

ficient to establish a prima facie case. Eastland, supra, at 625. 
  

Once a prima facie case is established the burden of 

production is shifted to the respondent. If it has not already 

become apparent from the plaintiff's presentation, it then 

becomes the defendant's burden to demonstrate that the plain- 

tiff's statistics are misleading, and such rebuttal may not be 

made by speculative theories. See Eastland, supra, at 618; Coble 
  

  

      
  

vs. Hot Springs School District, 682 F.24 721, 730-31 (8th Cir. 

1982); Jean vs. Nelson, supra. 
  

C. Findings of Fact. 

The court held an evidentiary hearing for the purpose of 

enabling the petitioner to put on the evidence he had in support 

of his contention that racial factors are a consideration in the 

imposition of the death penalty.l Hereafter are the court's 

findings as to what was established within the context of the 

legal framework set out above. 

1. The Witnesses 
  

The principal witness called by the petitioner was Professor 

David C. Baldus. Professor Baldus is a 48-year-old Professor of 

Law at the University of Iowa. Presently he is on leave from 

that post and is serving on the faculty of the University of 

Syracuse. Baldus's principal expertise is in the use of sta- 

tistical evidence in law. He and a statistician, James Cole, 

authored a book entitled Statistical Proof of Discrimination that 
  

was published by McGraw-Hill in 1980. R 54-56. He has done 

wl Ow  



    AQ 72A 
(Rev. 8/82) 

  

      

several pieces of social science research involving legal issues 

and statistical proof. R 45-46, 53. 

Before he became involved in projects akin to that under 

analysis here, Baldus apparently had had little contact with the 

criminal justice system. In law school he took one course which 

focused heavily on the rationale of the law of homicide. R 39. 

During his short stint in private practice he handled some habeas 

corpus matters and had discussions with a friend who was an 

Assistant District Attorney concerning the kinds of factors which 

his friend utilized in deciding how to dispose of cases. R 

43-44, As a part of the preparation of statistical proof of 

discrimination, Baldus and his co-author, Cole, re-evaluated the 

data set relied upon in Maxwell vs. Bishop, 398 F.2d 138 (8th 
  

Cir. 1968), vacated on other grounds, 398 U.S. 262 (1970), a 
  

rape case. R 72. 

Baldus became interested in methods of proportionality 

review and, together with four other scholars, published findings 

in the Stanford Law Review and the Journal of Criminal Law and 

Criminology. R 89. This was done on the basis of an analysis of 

some capital punishment data from California. R 81, et seq. 

Thereafter Baldus became a consultant to the National Center for 

State Courts and to the Supreme Court of South Dakota and the 

Supreme Court of Delaware. It is understood that his consulting 

work involved proportionality review. R 95. Baldus and Cole have 

also prepared an article for the Yale Law Journal evaluating 

statistical studies of the death penalty to determine if it had a 

we 

  

 



   
AO 72A 
(Rev. 8/82) 

  

  

    

deterrent effect. R 78. At the University of Iowa Baldus taught 

courses on scientific evidence, discrimination law, and capital 

punishment. 

Baldus was qualified by the court as an expert on the legal 

and social interpretation of data, not on the issue of whether or 

not the statistical procedures were valid under the circum- 

stances. While Baldus has some familiarity with statistical 

methodology, he was quick to defer to statistical experts where 

sophisticated questions of methodology were posed. See generally 
  

R 109-20. 

Dr. George Woodworth was called by the petitioner and 

qualified as an expert in the theory and application of sta- 

tistics and statistical computation, especially with reference to 

analysis of discreet outcome data. Dr. Woodworth is an Associate 

professor of Statistics at the University of Iowa and collabor- 

ated with Baldus on the preparation of the study before the 

court. R 1193. 

The petitioner also called Dr. Richard A. Berk, a Professor 

of Sociology at the University of California at Santa Barbara, 

and he was qualified as an expert in social science research with 

particular emphasis on the criminal justice system. R 1749-53. 

The respondents called two experts. One was Dr. Joseph 

Katz, an Assistant Professor at Georgia State University in the 

Department of Quantitative Methods. He was qualified as an 

expert in analyzing data, in research design, in statistics, 

statistical analysis and quantitative methods. R 1346. Dr. Ratz 

-21- 

  

 



   
AO 72A 
(Rev. 8/82) 

  

    

      

is a rather recent graduate of Louisiana State University. The 

respondent also called Roger L. Burford, 2 Professor of Quanti- 

tative Business Analysis at LSU. He was Katz's mentor at the 

graduate level. Burford was qualified as a statistical expert. R 

1627-32. 

The court was impressed with the learning of all of the 
  

experts. Each preferred the findings and assumptions which 
  

supported his thesis, but it seemed to the court that no one of 
  

them was willing to disregard academic honesty to the extent of 
  

advancing a propositicn for which there was absolutely no sup- 
  

port. 

2. Scope of the Studies 
  

Baldus and Woodworth conducted two studies on the criminal 

justice system in Georgia as it deals with homicide and murder 

cases. The first is referred to as the Procedural Reform Study. 

The second is referred to as the Charging and Sentencing Study. R 

121-122, 

The universe for the Procedural Reform Study included all 

persons convicted of murder at a guilt trial. Also included were 

several offenders who pled guilty to murder and received the 

death penalty. The time period for the study included offenders 

who were convicted under the new Georgia death penalty statute 

which went into effect on March 28, 1973, and included all such 

offenders who had been arrested as of June 30, 1978. In the 

Woke 30 10 

  

 



    AQ 72A 

(Rev. 8/82) 

    

Procedural Reform Study no sample of the cases was taken and 

instead the entire universe was studied. R 170-71. The data 

sources used by the researchers in the Procedural Reform Study 

were the files of the Georgia Supreme Court, certain information 

from the Department of Offender Rehabilitation, and information 

from the Georgia Department of Vital Statistics. R 175, et seq. 

Except for the few pleas, the Procedural Reform Study focused 

only on offenders who had been convicted of murder at a trial. R 

122. There were approximately 550 cases in the universe for the 

Procedural Reform Study. 

The Procedural Reform Study began when Baldus developed a 

questionnaire and dispatched two students to Georgia in the fall 

of 1979. In 1980 the coders returned to Georgia and coded 264 

cases on site. R 241-43, DB 28, DB 28A. As two different 

questionnaires were used, the researchers wrote a computer 

program which translated the data gathered from both question- 

naires into one format. R 246. 

Baldus made some preliminary studies on the data that he 

gathered in the Procedural Reform Study. He found in these 

preliminary analyses no "race of the defendant" effect and a very 

unclear "race of the victim" effect. R 258. The Legal Defense 

Fund learned of Baldus's research and retained him to conduct the 

second study. R 256. Baldus was of the opinion that it was 

critical to the validity of the study that the strength of the 

evidence be measured. R 262. Also, he felt it important to 

examine the combined effects of all the decisions made at the 

-B- 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

   

  

    

different levels of the criminal justice system. R 147. Ac- 

cordingly, the design of the Charging and Sentencing Study was 

different in that it produced measurements in these two respects 

in addition to measuring factors akin to those which were already 

being taken into account in the Procedural Reform Study. 

The universe for the Charging and Sentencing Study was all 

offenders who were convicted of murder or voluntary manslaughter 

whose crimes occurred after March 28, 1973 and whose arrests 

occurred before December 21, 1978. This produced a universe of 

about 2500 defendants. R 123, 263-64. Any defendant who was 

acquitted or convicted of a lesser-included offense is not 

included in the study. R 264. 

From the universe of the Charging and Sentencing Study a 

random stratified sample was drawn. The first stratification was 

by outcome. The researchers drew a 25% random sample of murder 

cases with life sentences and a 25% random sample of voluntary 

manslaughter cases. R 1216. To this sample, all death penalty 

cases were added. R 267-69. The second stratification was 

geographic. The researchers drew a sample of 18 cases from each 

judicial circuit in Georgia. Where the circuit did not produce 

18 cases in the first draw, additional cases were drawn from the 

population to supplement the original random sample. The results 

from each judicial circuit were then weighted so that each 

circuit contributed to the total effect in proportion to the 

total number of cases it contributed to the universe. R 270. 

“24  



    AO 72A 
(Rev. 8/82) 

Because of the many factors involved in such an analysis, a 
  

simple binomial comparison would show nothing. To determine 
  

whether or not race was being considered, it is necessary to 
  

compare very similar cases. This suggests the use of a sta- 
  

tistical technique known as cross tabulation. Because of the 
  

data available, it was impossible to get any statistically 
  

significant results in comparing exact cases using a cross 
  

tabulation method. R 705. Accordingly, the study principally 
  

relies upon multivariate analysis. 
  

    
3. The Accuracy of the Data Base 
  

As will be noted hereafter, no statistical analysis, much 

less a multivariate analysis, is any better than the accuracy of 

the data base. That accuracy was the subject of much testimony 

during the hearing. To understand the issue it is necessary to 

examine the snature of the questionnaires utilized and the 

procedures emnloyed to enter the data upon the questionnaires. 

The original questionnaire for the Procedural Reform Study 

was approximately 120 pages long and had foils (blanks) for the 

entry of data on about 500 variables. DB 27. The first 14 pages 

of the questionnaire were filled out by the Georgia Department of 

Of fender Rehabilitation for Professor Baldus. The remainder of 

the pages were coded by students in Iowa based on extracts 

prepared by data gatherers in Georgia. 

The data on the first 15 pages of the Procedural Reform 

Study questionnaire includes information on sentencing, basic 

demographic data concerning the defendant, his physical and 

5 

  

 



   
AO 72A 
(Rev. 8/82) 

  

  

    

psychiatric condition, his IQ, his prior record, as well as 

information concerning his behavior as an inmate. The next six 

pages of the questionnaire contained inquiries concerning the 

method of killing. Data is also gathered on the number of 

victims killed, information about co-perpetrators, and the 

disposition of their cases, and pleadings by the defendant. 

Another eight pages of questions search out characteristics of 

the offense. Three pages are reserved for data on contemporane- 

ous offenses, and another three pages for the victim's role in 

the crime and the defendant's behavior after the homicide. There 

are additional pages on the role of co-perpetrators. There are 

more questions relating to the defense at trial and on the kinds 

of evidence submitted by the defendant. Then, there are 26 pages 

of questions concerning the deliberations of the jury and 

information concerning the penalty trial. The questionnaire 

concludes on matters relating to the disposition of the case with 

respect to other counts charged and, finally, the last page is 

reserved for the coder to provide a narrative summary of what 

occurred in the case. R 197-200, DB 27. This questionnaire also 

contained foils so that the coder could indicate whether or not 

the prosecutor or the jury was aware of the information being 

coded. 

It is important to reiterate that this questionnaire was not 

coded by students having access to the raw data in Georgia. 

Instead, as noted above, two law students prepared detailed 

36 

  

 



    

  

AQ 72A 
(Rev. 8/82) 

  

  

  
  

  

abstracts of each case. Their notes were dictated and trans- 

cribed. These notes, together with an abstract filled out by an 

administrative aide to the Georgia Supreme Court and the opinion 

of the Georgia Supreme Court, were assembled as a file and were 

available in Iowa to the coders. R 209, 212, 241. 

During the 1979-80 academic year, another questionnaire, 

simpler in form, was designed for use in obtaining data for the 

Procedural Reform Study. This questionnaire dropped the in- 

quiries concerning whether the sentencing jury was aware of the 

aggravating and mitigating factors appearing in the files, R 

230-31. Some of the questionnaires were coded in Georgia and 

some were coded in Iowa. Baldus developed a coding protocol in an 

effort to guide those who were entering data on the qguestion- 

naires. R 220-21, 227. The professional staff at the University 

of Iowa Computer Center entered the data obtained from the 

various Procedural Reform Study questionnaires into the computer. 

Yet another ahast ionnaire was designed for the Charging and 

Sentencing Study. The last questionnaire was modified in three 

respects. First, Baldus included additional queries concerning 

legitimate aggravating and mitigating factors because he had 

determined on the basis of his experience with earlier data that 

it was necessary to do so. Second, the questionnaire expanded 

the coverage of materials relating to prior record. Third, it 

contained a significant section on "strength of the evidence." R 

274-77. After the new draft was produced and reviewed by several 

other academicians, it was reviewed by attorneys with the Legal 

a  



   
AQ 72A 
(Rev. 8/82) 

  

    

Defense Fund. They suggested the addition of at least one other 

variable. R 275. 

The Charging and Sentencing Study questionnaire is 42 pages 

long and has 595 foils for the recordation of factors which 

might, in Baldus's opinion, affect the outcome of the case. 

Generally, the kind of information sought included the location 

of the offense, the details of all of the charges brought against 

the offender, the outcome of the case, whether or not there was a 

plea bargain, characteristics of the defendant, prior record of 

the defendant, information regarding contemporaneous offenses, 

details concerning every victim in the case, characteristics of 

the offense, statutory aggravating factors, a delineation of the 

defendant's role vis-a-vis co-perpetrators', information on 

outcome of co-perpetrators' cases, other aggravating circum- 

stances such as the number of shots fired, miscellaneous miti- 

gating circumstances relating to the defendant or the victim, the 

defendant's defenses at the guilt trial, and the strength of the 

evidence. R 280-86. Again, all of these were categories of 

information which Baldus believed could affect the outcome of a 

given case. 

A student who headed a portion of the data-gathering effort 

for the first study was placed in charge of five law students who 

were hired and trained to code the new questionnaires. R 308. 

This supervisor's name was Ed Gates. 

25m 

  

 



    

  

AO 72A 
(Rev. 8/82) “ | » 

The principal data source for the Charging and Sentencing 

study was records of the Georgia Department of Pardons and 

Paroles. This was supplemented with information from the Bureau 

of Vital Statistics and questionnaires returned from lawyers and 

prosecutors. Also, some information was taken from the Depart- 

ment of Offender Rehabilitation. R 293-94, DB 39. The records 

from the Department of Pardons and Paroles included a summary of 

the police investigative report prepared by a parole officer, an 

FBI rap sheet, a personal history evaluation, an admissions data 

summary sheet, and, on occasion, the file might contain a witness 

statement or the actual police report. R 347. The police report 

actually appeared in about 25% of the cases. R 348. The Pardons 

and Paroles Board investigative summaries were always done after 

conviction. 

Baldus and Gates again developed a written protocol in an 

attempt to assist coders in resolving ambiguities. This protocol 

was developed in part on past experience and in part on a 

case-by-case basis. R 239, 311. In the Charging and Sentencing 

Study the coders were given two general rules to resolve am- 

biguities of fact. The first rule was that the ambiguity ought 

to be resolved in a direction that supports the determination of 

the factfinder. The second rule is that when the record con- 

cerning a fact is ambiguous the interpretation should support the 

legitimacy of the sentence. R 423, EG 4. 

“2 Qo       
 



   
AQ 72A 

(Rev. 8/82) 

  

  

      

As to each foil the coder had four choices. The response 

could be coded as 1, showing that the factor was definitely 

present, or 2, which means that the file indicated the presence 

of the factor. If the factor was definitely not present, the 

foil was left blank. In cases where it was considered equally 

possible for the factor to be absent or present, the coder 

entered the letter "U." R 517. For the purpose of making these 

coding decisions, it was assumed that if the file indicated that 

a witness who would likely have seen the information was present 

or if, in the case of physical evidence, it was of the type that 

the police would likely have been able to view, and if such 

information did not appear in the Parole Board summaries, then 

the coder treated that factor as not being present. R 521. 

In addition to coding questionnaires the coders were asked 

to prepare brief summaries that were intended to highlight parts 

of the crime that were difficult to code. R 366. 

By the end of the summer of 1981 the questionnaires had been 

coded in Georgia and they were returned to Iowa. R 3585. 511 of 

the data collected had to be entered onto a magnetic tape, and 

this process was completed by the Laboratory for Political 

Research at the University of Iowa. R 595. That laboratory 

"aleaned" the data as it was keypunched; that is, where an 

impermissible code showed up in a questionnaire it was reviewed 

by a student coder who re-coded the questionnaire based upon a 

reading of Baldus's file. R 600-08. 

-30- 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

    

After the data gathered for the Charging and Sentencing 

study was entered on computer tapes, it was re-coded so that the 

data would be in a useful format for the planned analysis. The 

first step of the re-coding of the data was to change all 1 and 2 

codes to 1, indicating that the factor was positively present. 

The procedure then re-coded all other responses as 0, meaning 

that the characteristic was not present. R 617-20. 

It appears to the court that the researchers attempted to be 

careful in that data-gathering, but, as will be pointed out 

hereafter, the final data base was far from perfect. An im- 

portant limitation placed on the data base was the fact that the 

questionnaire could not capture every nuance of every case. R 

239, 

Because of design of earlier questionnaires, the coders were 

limited to only three special precipitating events. There were 

other questions where there were limitations upon responses, and 

so the full degree of the aggravating or mitigating nature of the 

circumstances were not captured. In these situations where there 

was only a limited number of foils, the responses were coded in 

the order in which the student discovered them, and, as a 

consequence, those entered were not necessarily the most im- 

portant items found with respect to the variable. R 545. The 

presence or absence of enumerated factors were noted without 

making any judgment as to whether the factor was indeed miti- 

gating or aggravating in the context of the case. R 384. 

“«31~ 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

  

    

f 

In the Charging and Sentencing Study as well, there were 

instances where there was a limit on the number of applicable 

responses which could be entered. For example, on the variable 

"Method of Killing," only three foils were provided. R 461, EG 

65, Pp. 14. The effect of this would be to reduce the aggravation 

of a case that had multiple methods of inflicting death. In 

coding this variable the students generally would list the method 

that actually caused the death and would not list any other con- 

tributing assaultive behavior. R 463. 

The information available to the coders from the Parole 

Board files was very summary in many respects. For example, on 

one of the completed questionnaires the coder had information 

that the defendant had told four other people about the murder. 

The coder could not, however, determine from the information in 

the file whether the defendant was bragging about the murder or 

expressing remorse. R 467-68. As the witnesses to his state- 

ments were available to the prosecution and, presumably, to the 

jury, that information was knowable and probably known. It was 

not, however, captured in the study. The Parole Board summaries 

themselves were brief and the police reports from which the 

parole officers prepared their reports were typically only two or 

three pages long. R 1343. 

Because of the incompleteness of the Parole Board studies, 

the Charging and Sentencing Study contains no information about 

what a prosecutor felt about the credibility of any witnesses. R 

1117. It was occasionally difficult to determine whether or not 

“32 

  

 



  

   AQ 72A 
{Rev. 8/82) 

  

      

a co-perpetrator testified in the case. One of the important 

strength of the evidence variables coded was whether or not the 

police report indicated clear guilt. As the police reports were 

missing in 75% of the cases, the coders treated the Parole Board 

summary as a police report. R 493-94. Then, the coders were 

able to obtain information based only upon their impressions of 

the information contained in the file. R 349. 

Some of the questionnaires were clearly mis-coded. Because 

of the degree of latitude allowed the coders in drawing in- 

ferences based on the data of the file, a re-coding of the same 

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

different coding. R 370,386-87. Also, there would be dif- 

ferences in judgment among the coders. R 387. 

Several questionnaires, including the one for McCleskey and 

for one of his co-perpetrators, was reviewed at length during the 

hearing.. There were inconsistencies in the way several variables 

were coded for McCleskey and his co-perpetrator. R 1113; Res. 1, 

Res. 2. 

The same difficulties with accuracy and consistency of 

coding appeared in the Charging and Sentencing questionnaires. 

For example, the Charging and Sentencing Study had a question as 

to whether or not the defendant actively resisted or avoided 

arrest. McCleskey's questionnaire for the Charging and Sen- 

tencing Study indicated that he did not actively resist or avoid 

arrest. His questionnaire for the Procedural Reform Study 

indicated that he did. R 1129-30; Res. 2, Res. 4. Further, as 

-33- 

  

 



   
AO 72A 
(Rev. 8/82) 

  

  

      

noted above in one situation where it was undoubtedly knowable as 

to whether or not the defendant expressed remorse or bragged 

about the homicide, the factor was coded as "U." Under the 

protocol referred to earlier, if there was a witness present who 

could have known the answer and the answer did not appear in the 

file, then the foil is to be left blank. This indicates that the 

questionnaire, EG 6B, was not coded according to the protocol at 

foils 183 and 184. 

To test the consistency of coding judgments made by the 

students, Katz tested the consistency of coding of the same 

factor in the same case as between the two studies as to 30 or so 

variables. There were 361 cases which appeared in both studies. 

Of the variables that Katz selected there were mis-matches in 

coding in all but two of the variables. Some of the mis-matches 

were significant and occurred within factors which are generally 

thought to be important in a determination of sentencing outcome. 

For example, there were mis-matches in 50% of the cases tested as 

to the number of death eligible factors occurring in the case. 

Other important factors and the percent of mis-matches are as 

follows: 

Number of prior felonies 33% 
Immediate Rage Motive 15% 
Execution Style Murder 18% 
Unnecessary Killing 18% 
Defendant Additional 16% 

Crimes 
Bloody 28% 
Defendant Drug History 25% 

-f- 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

    

Victim Aroused Fear 16% 

in the Defendant ; 

Two or More Victims 80% 

in All 
Victim is a Stranger 12% 

Respondent's Exhibit 20A, R 1440, et seq. 

A problem alluded to above is the way the researchers chose 

to deal with those variables coded "U." It will be recalled that 

for a variable to be coded "U"™ in a given questionnaire, there 

must be sufficient circumstances in the file to suggest the 

possibility that it is present and to preclude the possibility 

that it is not present. In the Charging and Sentencing Study 

there are an average of 33 variables in each questionnaire which 

are coded as "U." The researchers treated that information as 

not known to the decision-maker. R 1155. Under the protocol 

employed, the decision to treat the "U" factors as not being 

present in a given case seems highly questionable. The threshold 

criteria for assuming that a factor was not present were ex- 

tremely low. A matter would not have been coded "U" unless there 

was something in the file which made the coder believe that the 

factor could be present. Accordingly, if the researchers wished 

to preserve the data and not drop the cases containing this 

unknown information, then it would seem that the more rational 

decision would be to treat the "U" factors as being present. 

This coding decision pervades the data base. Well more than 

100 variables had some significant number of entries coded "U." 

Those variables coded "U" in more than ten percent of the 

35m 

  

 



    

  

      

AO 72A 
(Rev. 8/82) 

A 

questionnaires are as follows (the sample size in the Charging 

and Sentencing Study is 1,084): 

Plea Bargaining 445 

Employment Status of the 107 

Defendant 

Victim's Age 189 

Occupational Status of 721 

the Victim 
Employment Status of 744 

the Victim 

Defendant's Motive was 284 

Long-Term Hate 
Defendant's Motive was 202 

Revenge 
Defendant's Motive was 130 

Jealousy 
Defendant's Motive was 181 

Immediate Rage 

Defendant's Motive was 447 

Racial Animosity 

Dispute While under the 159 

Influence of Alcohol 

or Drugs 
Victim Mental Defective 625 

Victim Pregnant 239 

Victim Defenseless due to 134 

Disparity in Size or 

Numbers ; 

Victim Support Children 781 

Victim Offered NO 192 

Provocation ; 

Homicide Planned for 496 

More than Five Minutes 

Execution-Style Homicide 109 

Victim Pleaded for Life 799 

Defendant Showed No Remorse 902 

for Homicide 
Defendant Expressed Pleasure 885 

With Homicide 

Defendant Created Risk of 128 

Death to Others 

Defendant Used Alcohol 251 

or Drugs Before the Crime 

Effect of Alcohol on the 220 

Defendant 

Defendant Showed Remorse 913 

Defendant Surrendered 125 

within 24 Hours 

Victim Used Drugs or 244 

Alcohol Before Homicide 

-36- 

| 
| 

 



    

  

AQ 72A 

(Rev. 8/82) 

      

  

    
  

Effect of Drugs on Victim 168 

Victim Aroused Defendant's «2220 

Fear for Life 

Victim Armed with Deadly 155 

Weapon 

History of Bad Blood 173 

Between Defendant and Victim 

Victim Accused Defendant 117 

of Misconduct 

Victim Physically Assaulted 159 

Defendant at Homicide 

Victim Verbally Threatened 185 

Defendant at Homicide j 

Victim Verbally Abused 300 

Defendant at Homicide 

Victim Verbally Threatened 100 

Defendant Earlier 

Victim Verbally Abused 156 

Defendant Earlier 

Victim Had Bad Criminal 665 

Reputation 

Victim had Criminal Record 946 

A large number of other variables were coded "U" in more than 

five percent of the questionnaires. Race of the victim was 

unknown in 62 cases. Other variables which are often thought to 

explain sentencing outcomes and which were coded "U" in more than 

five percent of the questionnaires included: 

Defendant's Motive was Sex 68 

Defendant's Motive Silence 72 

Witness for Current Crime 

Dispute with Victim/Defendant 76 

over Money/Property 

Lovers' Triangle 74 

Victim Defenseless due to 63 

0ld Age 
Defendant Actively Resisted 67 

Arrest 

Number of Victims Killed by 66 

the Defendant 

Defendant Cooperated with 72 

Authorities 

Defendant had History of 79 

Drug and Alcohol Abuse 

37  



   
AQ 72A 
(Rev. 8/82) 

  

      

Victim Physically Injured 63 

Defendant at Homicide : 

Victim Physically Assaulted 71 
Defendant Earlier 

Many of the variables showing high rates of "U" codings were used 

in Baldus's models. For example, in Exhibit DB 83, models 

controlling for 13, 14 and 44 variables, respectively, are used 

in an effort to measure racial disparities. In the l3-variable 

model, five of the variables have substantial numbers of "U" 

codes. In the l4-variable model, seven variables are likewise 

affected, and in the 44-variable model, six were affected. 

Similar problems plagued the Procedural Reform Study. Respond- 

ent's Exhibits 17A, 18A; DB 96A, DB 83, R 1429. 

Because of the substantial number of "U" codes in the data 

base and the decision to treat that factor as not present in the 

case, Woodworth re-coded the "U" data so that the coding would 

support the outcome of the case and ran a worst case analysis on 

five small models. This had the effect generally of depressing 

the coefficients of racial disparity by as much as 25%. In the 

three models which controlled for a relatively small number of 

background variables, he also re-computed the standard deviation 

based on his worst case analysis. In the two larger models on 

which he ran these studies, he did not compute the standard 

deviation, and in the largest model he did not even compute the 

racial coefficients after conducting the worst case analysis. 

Accordingly, it is impossible for the court to determine if the 

coefficient for race of the victim remains present or is statis- 

-38~ 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

  

    

tically significant in these larger order regressions. Both 

because of this and because the models used in the validating 

procedure were not themselves validated, it cannot be said that 

the coding decision on the "U" data made no effect on the results 

obtained. See generally GW 4, Table 1. 

In DB 122 and 123 Baldus conducts a worst case analysis 

which shows the results upon re-coding "U"™ data so as to legiti- 

mize the sentence. Baldus testified that the coding of unknowns 

would not affect the outcome of his analysis based on the 

experiments and these exhibits. The experiments do not, however, 

support his conclusion, and it would appear to the court that the 

experiments were not designed to support his conclusions. In DB 

122 Baldus controls for only three variables; thence, it is 

impossible to measure the effect of any other variables or the 

effects that the re-coding would have on the outcome. In DB 123 

he utilizes a 39-variable model and concludes that on the basis 

of the re-coding it has no effect on the racial coefficients. 

Only five of the variables in the 39-variable model have any 

substantial coding problems associated with them. (For these 

purposes the court is defining a "substantial problem" as a 

variable with more than 100 entries coded "U.") These five 

variables are the presence of a statutory aggravating factor B3 

and B7D, hate, jealousy, and a composite of family, lover, 

liquor, or barroom quarrel. Baldus did not test any of his 

larger regressions to see what the effect would be. R 1701, et 

seg., DB 96A, Schedule 4, DB 122, DB 123, Res. Exh. 47A. 

-30~ 

  

 



    

  

AQ 72A pd 

(Rev. 8/82) 

In addition to the questionable handling of the "U" codes, 

  there were other factors which might affect the outcome of the 

| study where information was simply unknown or unused. In the 

| Charging and Sentencing Study data related with the response 

| "Other" was not used in subsequent analyses. In one factor, 

"special aggravating feature of the offense," there were 139 

"Other" responses. R 1392, 1437.   
Cases where the race of the victim was unknown were coded on 

the principle of imputation, as though the race of the victim was 

the same as the race of the defendant. R 1096 

There were 23 or 24 cases in the Procedural Reform Study and 

62 or 63 cases in the Charging and Sentencing Study where the 

researchers did not know whether or not a penalty trial had been 

held. R 1522. Baldus, on the basis of the rate at which penalty 

trials were occurring in his other cases, predicted what propor- 

rion of these that probably proceeded to a penalty trial. The 

selterid for deciding precisely which of these cases proceeded to 

a penalty trial and which did not is unknown to the court. R 

1101. It is not beyond possibility that the treatment of these 

62 cases could have skewed the results. The data becomes 

important in modeling the prosecutorial decisions to seek a death 

sentence after there had been a conviction. Based on his sample 

Baldus projects that something over 760 murder convictions 

occurred. If the 62 cases were proportionally weighted by a 

factor of 2.3 (2484 cases in the universe divided by 1084 cases 

in the sample equals 2.3), the effect would be the same as if he   -40-     
 



    AQ 72A 

(Rev. 8/82) 

  

were missing data on 143 cases. Said another way, he would be 

missing data on about 18 to 20% of all of the decisions he was 

seeking to study. See generally R 1119. 
  

The study was also missing any information on race of the 

victim where there were multiple victims. R 1146-47. Further, 

Baldus was without information on whether or not the prosecutor 

offered a plea bargain in 40% of the cases. R 1152. One of the 

strength of the evidence questions related to whether or not 

there was a credibility problem with a witness. Such information 

was available only in a handful of files. R 532-33. Further, 

the data would not include anything on anyone who was convicted 

of murder and received probation. R 186. 

Multiple regression requires complete correct data to be 

utilized. If the data is not correct the results can be faulty 

and not reliable. R 1505-06. Katz urged that the most accepted 

convention in dealing with unknowns is to drop the observations 

from the analysis. R 1501-04. Berk opined that missing data 

seldom makes any difference unless it is missing at the order of 

magnitude of 30 to 45%. R 1766. This opinion by Berk rests in 

part upon his understanding that the missing data, whether coded 

"U" or truly missing, was unknowable to the decision-maker. In 

the vast majority of cases this is simply not the case. 

After a consideration of the foregoing, the court is of the 
  

opinion that the data base has substantial flaws and that the 
  

petitioner has failed to establish by a preponderance of the 
  

evidence that it is essentially trustworthy. As demonstrated 
      dl w 

  

 



    AQ 72A 
(Rev. 8/82) 

above, there are errors in coding the questionnaire for the case 

sub judice. This fact alone will invalidate several important 
  

    

premises of petitioner's experts. Further, there are large 

numbers of aggravating and mitigating circumstances data about 

which is unknown. Also, the researchers are without knowledge 

concerning the decision made by prosecutors to advance cases to a 

penalty trial in a significant number of instances. The court's 

purpose here is not to reiterate the deficiencies but to mention 

several of its concerns. It is a major premise of a statistical 

case that the data base numerically mirrors reality. If it does 

not in substantial degree mirror reality, any inferences em- 

pirically arrived at are untrustworthy. 

4. Accuracy of the Models 
  

In a system where there are many factors which affect 

outcomes, an unadjusted binomial analysis cannot explain rela- 

tionships. According to Baldus, no expert opinion of racial 

effects can rest upon unadjusted figures. R 731. In attempting 

to measure the effect of a variable of interest, Baldus testified 

that if a particularly important background variable is not 

controlled for, the coefficient for the variable of interest does 

not present a whole picture. Instead, one must control for the 

background effects of a variety of factors at once. One must, 

Baldus testified, identify the important factors in the system 

and control for them. R 694-95. Baldus also testified that a 

study which does not focus on individual stages in the process 

and does not control for very many background factors is limited 

“43. 

  

 



    AQ 72A 
(Rev. 8/82) 

      

in its power to support an inference of discrimination. R 

146-47. Because he realized the sscessicy of controlling for all 

important background variables, he read extensively, consulted 

with peers, and from these efforts and from his prior analysis of 

data sets from California and Arkansas, he sought in his ques- 

tionnaires to obtain information on every variable he believed 

would bear on the matter of death-worthiness of an individual 

defendant's case. His goal was to create a data set that would 

allow him to control for all of those background factors. R 

194-95, 739. At this point it is important to emphasize a 

difference between the Procedural Reform Study and the Charging 

and Sentencing Study. The Procedural Reform Study contains no 

measures for strength of the evidence. Because Baldus was of the 

opinion that this could be a factor in whether or not capital 

punishment was imposed, information regarding the strength of the 

evidence was collected in the Charging and Sentencing Study. R 

124, 286. 

Baldus collected data on over 500 factors in each case. From 

the 500 variables he decided to select 230 for inclusion in 

further statistical analysis. R 659, He testified without 

further explanation that these 230 variables were the ones that 

he would expect to explain who received death sentences and who 

did not. R 661. X 631. Based on this testimony it follows that 

any model which does not include the 230 variables may very 

possibly not present a whole picture. 

dd 3 

  

 



    AQ 72A 
(Rev. 8/82) 

    

The 230 variable-model has several deficiencies. It assumes 

that all of the information available to the data-gatherers was 

available to each decision-maker in the system at the time that 

decisions were made. R 1122. This is a questionable assumption. 

To the extent that the records of the Parole Board accurately 

reflect the circumstances of each case, they present a retro- 

spective view of the facts and circumstances. That is to say, 

they reflect a view of the case after all investigation is 

completed, after all pretrial preparation is made, after all 

evidentiary rulings have been handed down, after each witness has 

testified, and after the defendant's defense or mitigation is 

aired. Anyone who has ever tried a lawsuit would testify that it 

is seldom and rare when at progressive stages of the case he 

knows as much as he knows by hindsight. Further, the file does 

not reflect what was known to the jury but only what was known to 

the police. Legal literature is rife with illustrations of 

information known reliably to the parties which they never manage 

to get to the factfinders. Consequently, the court feels that 

any model produced from the data base available is substantially 

flawed because it does not measure decisions based on the 

knowledge available to the decision-maker. 

Beyond that defect, there are other reasons to distrust the 

230-variable model or any of the others proposed by Baldus. 

Statisticians have a method for measuring what portion of the 

variance in the dependent variable (here death sentencing rate) 

is accounted for by the independent variables included in the 

nm 

  

 



   
AQ 72A 

(Rev. 8/82) 

   

  

    

model. This measure is known as an adjusted r2. The r2 values 

for a model which is perfectly predictive of changes in the 

dependent variable would have a value of 1.0. The ré values for 

the models utilized by Woodworth to check the validity of his 

statistical techniques range from .15 to .39. The r2 for the 

230-variable model is between .46 and .48. The difference 

between the r2 value and 1 may be explained by one of two 

hypotheses. The first is that the other unaccounted-for factors 

at work in the system are totally random or unique features of 

individual cases that cannot be accounted for in any systematic 

way. The other theory is that the model does not model the 

system. R 1266-69, GW 4, Table 1. As will appear hereafter, 

neititer B21dds nor Woodworth believes that the system is random. 

In summary, the r2 measure is an indicia of how successful’ 

one has been with one's model in predicting the actual outcome of 

cases. R 1489. As the 230-variable model does not predict the 

outcome in half of the cases and none of the other models 

produced by the petitioner has an r2 even approaching .5, the 

court is of the opinion that none of the models are sufficiently 

predictive to support an inference of discrimination. 

The regression equation, discussed in greater detail 

hereafter, postulates that the value of the dependent variable in 

a given case is the sum of the coefficients of all of the 

independent variables plus "U." In the equation the term "U" 

refers to all unique characteristics of an individual case that 

have not been controlled for on a system-wide basis. X 51-52. If 

-d5- 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    
  

the model is not appropriately inclusive of all of the systematic 

factors, then the "U" value will contain random influences as 

well as systematic influences. X 90. The r2 value is a summary 

statistic which describes collectively all of the "U" terms. 

Sometimes it is said that "U" measures random effects. 

Woodworth testified that randomness does not necessarily reflect 

arbitrariness. He continued, "The world really isn't random. 

When we say something is random, we simply mean it's unaccount- 

able, and that whatever does account for it is unique to each 

case. ... This randomness that we use is a tag that phenomena 

which are unpredictable on the basis of variables we have 

observed [sic]."™ R 1272-73. By implication this means that even 

in the 230-variable model it is unique circumstances or un- 

controlled-for variables which preponderate over the controlled- 

for variables in explaining death sentencing rates. This is but 

another way of saying that the models presented are insuffi- 

ciently predictive to support an inference of discrimination. 

None of the models presented have accounted for the al- 

ternative hypothesis that the race effects observed cannot be 

explained by unaccounted-for factors. This is further illus- 

trated by an experiment that Katz conducted. He observed that 

when he controlled only for whether or not there had been a 

murder indictment and tried to predict the outcome based solely 

on the race of the victim, he obtained a regression coefficient 

of D7 which was statistically significant at the 

.00000000000000000005 level. He further observed that by the 

di f= 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

      

time Baldus had controlled for 230 variables, the "P" value or 

test of statistical significance was only approximately .02. He 

stated as his opinion that the positive value of the race of the 

victim coefficient would not disappear because it was a con- 

venient variable for the equation to use in explaining actual 

outcome where so many cases in the sample were white victim 

cases. It was his opinion, however, that the race of the victim 

coefficient would become statistically insignificant with a model 

with a higher r2 which better accounted for all of the non-racial 

variables including interaction variables and composite variables 

which could be utilized. R 1563-70. This methodical decline in 

statistical significance of the race of the victim and race of 

the defendant effects as more variables are controlled for is 

demonstrated graphically in Table 1 which is attached to the 

opinion as Appendix A.? There, it will be observed that if an 

additional 20 background variables are added beyond the 230- 

variable model and the data is adjusted to show the effect on 

death sentencing rates of appellate review, both the size of the 

coefficient for race of the victim and race of the defendant 

decreases by one-third, and the statistical significance de- 

creases to .04 and .05, respectively. 3 

Based on the evidence the court is unable to find either way 

with respect to Katz's hypothesis. From the evidence offered in 

support and in contradiction of the hypothesis, the court does 

learn one thing: It was said that one indication of the com- 

pleteness of a model is when one can find no additional variables 

dF 

  

 



   
AO 72A 
(Rev. 8/82) 

  

  
to add which would affect the results obtained. The work by Katz 

and Woodworth shows instability in the findings of the small 

order models utilized in the study, and, therefore, it is further 

evidence that they are not sufficiently designed so as to be 

reliable. See generally R 1729, Table 1, GW 6, Res. Exh. 24. 
  

Based on all the foregoing, the court finds that none of the 
  

models utilized by the petitioner's experts are sufficiently 
  

  predictive to support an inference of discrimination . 
  

  

    
5. Multi-Colinearity. 
  

As illustrated in Table 1, the petitioner introduced a 

number of exhibits which reflected a positive coefficient for the 

race of the victim and race of the defendant. The respondent has 

raised the question of whether or not those coefficients are in 

fact measuring racial disparities or whether the racial variables 

are serving as proxies for other permissible factors. Stated 

another way, the respondent contends that the Baldus research 

cannot support an inference of discrimination because of multi- 

colinearity. 

If the variables in an analysis are correlated with one 

another, this is called multi-colinearity. Where this exists the 

coefficients are difficult to interpret. R 1166. A regression 

coefficient should measure the impact of a particular independent 

variable, and it may do so if the other variables are totally 

uncorrelated and are independent of each other. If, however, 

there is any degree of interrelationship among the variables, the 

regression coefficients are somewhat distorted by that relation- 

ng: 00 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

ship and do not measure exactly the net impact of the independent 

variable of interest upon the dependent variable. Where multi- 

colinearity obtains, the results should be viewed with great 

caution, 

In the Charging and Sentencing Study a very substantial 

proportion of the variables are correlated to the race of the 

victim and to the death sentencing result. R 1141-42. All or a 

big proportion of the major non-statutory aggravating factors and 

statutory aggravating factors show positive correlation with both 

the death sentencing result and the race of the victim. R 1142, 

More than 100 variables show statistically significant rela- 

tionships with both death sentencing results and the race of the 

victim. R 1142. Because of this it is not possible to say with 

precision what, if any, effect the racial variables have on the 

dependent variable. R 1148, 1649. According to Baldus, tests of 

statistical significance will not always detect errors in 

coefficients produced by multi-colinearity. R 1138, DB 92. 

Katz conducted experiments which further demonstrated the 

truth of an observation which Baldus made: white-victim cases 

tend to be more aggravated while black-victim cases tend to be 

more mitigated. Using the data base of the Procedural Reform 

Study, Katz conducted an analysis on 196 white-victim cases and 

70 black-victim cases which had in common the presence of the 

statutory aggravating factor B2.4 Factor by factor, he determi- 

ned whether white-victim cases or black-victim cases had the 

higher incidence of each aggravating and mitigating factor. The 

-d Om 

  

 



    AQ 72A 
(Rev. 8/82) 

        

experiment showed that there were 25 aggravating circumstances 

which appeared at a statistically soni icant higher proportion 

in cases involving one racial group than they did in the other. 

Of these 25 aggravating circumstances, 23 of these occurred in 

white-victim cases and only 2. occurred in black=-victim cases. 

Likewise with mitigating factors it was determined that 12 

mitigating factors appeared in a higher proportion of black- 

victim cases whereas only one mitigating feature appeared in a 

higher proportion of white-victim cases. The results of this 

latter analysis were also statistically significant. R 1472, et 

seg., Res. Exh. 28. Similar or more dramatic results were 

obtained when the experiment was repeated with statutory factors 

Bl, 3, 4, 7, 9 and 10. Res, Exh, 29-34; R 1477-80. 

As he had done with the data from the Procedural Reform 

Study, Katz conducted an analysis to discover the relative 

presence or absence of aggravating or mitigating circumstances in 

white- and black-victim cases, using the Charging and Sentencing 

Study data. Only aggravating or mitigating circumstances shown 

to be significant at the .05 level were utilized. Unknown 

responses were not considered. With but slight exception, each 

aggravating factor was present in a markedly higher percentage of 

white-victim cases than in black-victim cases, and conversely, 

the vast majority of the mitigating circumstances appeared in 

higher proportions in black-victim cases. Res. Exh. 49, 50, R 

we 55 (ve 

  

 



    AO 72A 
(Rev. 8/82) 

    

1534-35. Similar observations were made with reference to cases 

disposed of by conviction of voluntary manslaughter. Res. Exh. 

31, 52, R 1536, 

Yet another experiment was conducted by Katz. He compared 

the death sentencing rates for killers of white and black victims 

at steps progressing upwards from the presence of no statutory 

aggravating circumstances to the presence of six such circum- 

stances. At the level where there were three or four statutory 

aggravating circumstances present, a statistically significant 

race of the victim effect appeared. He then compared the 

aggravating and mitigating circumstances within each group and in 

each instance found on a factor-by-factor basis that there was a 

higher number of aggravating circumstances which occurred in 

higher proportions in white-victim cases and a number of miti- 

gating factors occurred in higher proportions in black=-victim 

cases. The results were statistically significant. Res. Exh. 

36, 37, R 1482, 

All of the experts except Berk seemed to agree that there 

was substantial multi-colinearity in the data. Berk found rather 

little multi-colinearity. R 1756. Woodworth observed that 

multi-colinearity has the effect of increasing the standard 

deviation of the regression coefficients, and he observed that 

this would reduce the statistical significance. According to 

Woodworth the net effect of multi-colinearity would be to dampen 

the effect of observed racial variables. R 1279-82. He also 

testified that he had assured himself of no effect from multi- 

“Bl 

  

 



    AO 72A 
(Rev. 8/82) 

    

colinearity because they were able to measure the disparities 

between white-victim and black-victim cases at similar levels of 

aggravation. For these two reasons Woodworth had the opinion 

that higher levels of aggravation in white=victim cases were not 

relevant to any issue. R 1297. 

The court cannot agree with Woodworth's assessment. He and 

Baldus seem to be at odds about whether tests of statistical 

significance will reveal and protect against results produced by 

multi-colinearity. His second point is also unconvincing. He 

contends that because he can measure a difference between the 

death sentencing rate in white-victim cases and black-victim 

cases at the same level of aggravation (and presumably mitiga- 

tion), then the positive regression coefficients for this 

variable are not being produced by multi-colinearity. If 

Woodworth's major premise were correct, his conclusion might be 

tenable. The major premise is that he is comparing cases with 

similar levels of aggravation and mitigation. He is not. As 

will be discussed hereafter, he is merely comparing cases which 

have similar aggravation indices based on the variables included 

in the model. None of Woodworth's models on which he performed 

his diagnostics are large order regression analyses. Accord- 

ingly, they do not account for a majority either of aggravating 

or mitigating circumstances in the cases. Therefore, in the 

white-victim cases there are unaccounted-for systematic aggra- 

vating features, and in the black-victim cases there are un- 

accounted-for systematic mitigating features. As will be seen 

hg 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

hereafter, aggravating factors do increase the death penalty rate 

and mitigating factors do decrease the death penalty rate. There- 

fore, at least to the extent that there are unaccounted-for 

aggravating or mitigating circumstances, white-victim cases 

become a proxy for aggravated cases, and black-victim cases 

become a proxy, or composite variable, for mitigating factors. 

The presence of multi-colinearity substantially diminishes 
  

the weight to be accorded to the circumstantial statistical 
  

evidence of racial disparity. 
  

6. Petitioner's Best Case and Other Observations. 
  

Based on what has been said to this point, the court would 
  

find that the petitioner has failed to make out a prima facie 
  

case of discrimination based either on race of the victim or race 
  

of the defendant disparity. There are many reasons, the three 
  

    
most important of which are that the data base is substantially 

flawed, that even the largest models are not sufficiently 

predictive, and that the analyses do not compare like cases. The 

case should be at an end here, but for the sake of completeness, 

further findings are in order. In this section the statistical 

showings based on the petitioner's most complete model will be 

set out, together with other observations about the death penalty 

system as it operates in the State of Georgia. 

Woodworth testified, "No, the system is definitely not 

purely random. This system very definitely sorts people out into 

categories on rational grounds. And those different categories 

receive death at different rates." R 1277. An analysis of 

Bl Jom 

  

 



    AQ 72A 
(Rev. 8/82) 

  

  

factors identified by Baldus as aggravating and mitigating, when 

adjusted to delete unknown valoaes ives a picture of a rational 

system when measured against case outcome. Virtually without 

exception, the presence of aggravating factors increases as the 

outcome moves from voluntary manslaughter to life sentence to 

death sentence. Conversely, factors identified by Baldus as 

being mitigating decrease in presence in cases as the outcome 

moves from voluntary manslaughter to life sentence to death 

sentence. R 1532. Res. Exh. 48. 

These observations, other testimony by all of the experts, 
  

and the court's own analysis of the data put to rest in this 
  

    

court's mind any notion that the imposition of the death penalty 
  

in Georgia is a random event unguided by rational thought. The 
  

central question is whether any of the rationales for the 

imposing or not imposing of the death penalty are based on 

impermissible factors such as race of the defendant or race of 

the victim. In Baldus's opinion, based on his entire study, 

there are systematic and substantial disparities existing in the 

penalties imposed upon homicide defendants in the State of 

Georgia based on race of the homicide victim. Further, he was of 

the opinion that disparities in death sentencing rates do exist 

based on the race of the defendant, but they are not as substan- 

tial and not as systematic as is the case with the race of the 

victim effect. He was also of the opinion that both of these 

factors were at work in Fulton County. R 726-29. The court does 
  

5 

  

 



    

AQ 72A 
{Rev. 8/82) 

  

not share Dr. Baldus's opinion to the extent that it expresses a 
  

belief that either of these racial considerations determines who 
    receives the death penalty and who does not. 
  

    

Petitioner's experts repeatedly testified that they had 

added confidence in their opinions because of "triangulation." 

That is, they conducted a number of different statistical studies 

and they all produced the same results. R 1081-82. This basis 

for the opinion is insubstantial for two reasons. First, many 

tests showed an absence of a race of the defendant effect or an 

absence of a statistically significant race of the defendant 

effect or a statistically insignificant modest race of the 

defendant effect running against white defendants. As will be 

seen below, the race of the victim effect observed, while more 

persistent, did not always appear at a statistically significant 

level in every analysis. Second, Baldus's confidence is predi- 

cated upon a navigational concept, triangulation, which presumes 

that the several bearings being taken are accurate. The lore of 

the Caribbean basin is rich with tales of island communities sup- 

porting themselves from the booty of ships which have foundered 

after taking bearings on navigational aids which have been 

mischievously rearranged by the islanders. If one is going to 

navigate by triangulation, one needs to have confidence in the 

bearings that are Being shot. As discussed earlier, Baldus is 

taking his bearings off of many models, none of which are 

adequately inclusive to predict outcomes with any regularity. 

“5 

  

 



     

  

a0 72 ® # 
(Rev. 8/82) 

Baldus has testified that his 230-variable model contains 

those factors which might best explain how the death penalty is 

imposed. The court, therefore, views results produced by that 

model as the most reliable evidence presented by the petitioner. 

Additionally, in some tables Baldus employed a 250-variable model 

which adjusted for death sentencing rates after appellate review 

by Georgia courts. The race of the victim and race of the 

defendant effects, together with the "P" values, are shown in the     
table below. 

TABLE 2 

RACIAL EFFECTS TAKING INTO ACCOUNT ALL DECISIONS IN 

THE SYSTEM -- LARGE SCALE REGRESSIONS 

Weighted Least Squares Regression Results 
  

Coefficients and Level of Statistical Significance 
  

230 Variable Model 
  

  
  

Race of the Victim Race of Defendant 

.06 .06 

{.02) {.02) 

250 Variable Model 
After Adjustment for Georgia Appellate Review 
  

  

  
  

Race of the Victim Race of Defendant 

.04 .04 

(.04) {.05)   lB       
 



    AO 72A 
(Rev. 8/82) 

    

In viewing Table 2, it is important to keep in mind that it 

purports to measure the net effect of the racial variables on all 

decisions made in the system from indictment forward. It shows 

nothing about the effect of the racial variables on the prose- 

cutor's decision to advance a case to a penalty trial and nothing 

about the effect of the racial variables on the jury and its 

decision to impose the death penalty. 

At this point it is instructive to know how Dr. Baldus 

interpreted his own findings on the racial variables. He says 

that the impact of the racial variable is small. R 831. The 

chances that anybody is going to receive a death sentence is 

going to depend on what the other aggravating and mitigating 

circumstances are in the case. R 828. At another point Baldus 

testified that: 

[t]he race of the victim in this system is 

clearly not the determinant of what happened, 

but rather that it is a factor like a number 

of other factors, that it plays a role and 

influences decision making. 

The one thing that's, that struck me from 

working with these data for some time, there 

is no one factor that determines what happens 

in the system. If there were, you could make 

highly accurate predictions of what's going 

to happen. This is a system that is highly 

discretionary, highly complex, many factors 

are at work in influencing choice, and no one 

factor dominates the system. It's the result 

of a combination of many different factors 

that produce the results that we see, each 

factor contributing more or less influence. 

BF 

  

 



    AQ 72A 
(Rev. 8/82) 

R 813. And at another point Dr. Baldus interpreted his data as 

follows: 

The central message that comes through is the 
race effects are concentrated in categories 
of cases where there's an elevated risk of a 
death sentence. There's no suggestion in this 
research that there is a uniform, institu- 
tional bias that adversely affects defendants 
in white victim cases in all circumstances, 
or a black defendant in all cases. There's 
nothing to support that conclusion. It's a 
very complicated system. 

R 842. 

Because of these observations, the testimony of other 
  

witnesses, and the court's own analysis of the data, it agrees 
  

that any racial variable is not determinant of who is going to 
  

receive the death penalty, and, further, the court agrees that 
  

there is no support for a proposition that race has any effect in 
  

any single case. 
  

    
An exhibit, DB 95, is produced in part in Table 3 below. It 

is perhaps the most significant table in the Baldus study. This 

table measures the race of the victim and the race of the 

defendant effect in the prosecutorial decision to seek the death 

sentence and in the jury sentencing decision to impose the death 

sentence. This is one of the few exhibits prepared by Baldus 

which utilizes data both from the Procedural Reform Study and the 

Charging and Sentencing Study. The first column shows the racial 

effects after controlling for 230 variables in the Charging and 

Sentencing Study and 200 variables in the Procedural Reform 

Study. 

-58~- 

  

 



    

REGRESSION COEFFICIENTS 

TABLE 3 

(WITH THE LEVEL OF STATISTICAL 

SIGNIFICANCE IN PARENTHESES) FOR RACIAL VARIABLES IN 

ANALYSES OR PROSECUTORIAL DECISIONS TO SEEK AND JURY 

DECISIONS TO IMPOSE CAPITAL PUNISHMENT 

I. Prosecutor Decision to 

Seek a Death Sentence 

A. Race of Victim 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

B. Race of Defendant 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

II. Jury Sentencing Decisionsl/ 

A. Race of Victim 

l. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

B. Race of Defendant 

1. Charging and 
Sentencing Study 

2. Procedural Reform 

Study 

  

1 Unweighted data used. 
Simultaneous adjustment 
possible because of the 
cisions. (From DB 95). 

Controlling for All Factors in File 
(230 variables in Charging & Sen- 
tencing Study; 200 variables in 
Procedural Reform Study) 
  

Regardless of If Statistically 

  
  

Statistical Significant at 
Significant .10 Level 

«21 iB 
(.06) (.0001) 

e123 «l3 
{.01) (.0001) 

.09 .14 
(.42) (.002) 

.01 03 
(.96) (.41) 

2/ 05 
(+37) 

.06 
(.42) 

-,04 
(.42) 

-.02 
{.75) 

for all factors in the files was not 

limited number of penalty trial de- 

Wf Th 

 



   
AO 72A 
(Rev. 8/82) 

  

            

The coefficients produced by the 230-variable model on the 

Charging and Sentencing Study data base produce no statistically 

significant race of the victim effect either in the prosecutor's 

decision to seek the death penalty or in the jury sentencing 

decision. A 200-variable model based on the Procedural Reform 

data base shows a statistically significant race of the victim 

effect at work on the prosecutor's decision-making, but that 

model is totally invalid for it contains no variable for strength 

of the evidence, a factor which has universally been accepted as 

one which plays a large part in influencing decisions by prose- 

cutors. Neither model produces a statistically significant race 

of the defendant effect at the level where the prosecutor is 

trying to decide if the case should be advanced to a penalty 

trial. Neither model produces any evidence that race of the 

victim or race of the defendant has any statistically significant 

effect on the jury's decision to impose the death penalty. The 

significance of this table cannot be overlooked. The death 

penalty cannot be imposed unless the prosecutor asks for a 

penalty trial and the jury imposes it. The best models which 
  

Baldus was able to devise which account to any significant degree 
  

for the major non-racial variables, including strength of the 
  

evidence, produce no statistically significant evidence that race 
  

plays a part in either of those decisions in the State of 

5 

  

Georgia. 

«60~ 

  

 



   
AO 72A 
(Rev. 8/82) 

  

      

The same computations were repeated using only factors which 

were statistically significant at the .10 level.® The court 

knows Of no statistical convention which would permit a re- 

searcher arbitrarily to exclude factors on the basis of arti- 

ficial criteria which experience and other research have indi- 

cated have some influence on the decisions at issue. The fact 

that a variable may not be statistically significant is more 

likely a reflection of the fact that it does not occur often, and 

not any sort of determination that when it does occur it lacks 

effect. Accordingly, the second model, set out in Table 3, does 

not meet the criterion of having been validated by someone 

knowledgeable about the inner workings of the decision-making 

process. 

The results in the second column are reproduced here because 

they demonstrate some other properties of the research. It is 

noted first that the race of the victim effect is lower in the 

Procedural Reform Study than in the Charging and Sentencing 

study. As the Procedural Reform study represents a universe of 

all cases and the Charging and Sentencing Study is a random 

sample, one possible explanation for the disparity in magnitude 

might be that the sampling techniques utilized in the Charging 

and Sentencing Study somehow overestimated the coefficients. 

Another interesting observation from this study is that even when 

the data is artificially manipulated, no statistically signi- 

ficant race of the victim or race of the defendant effect appears 

at the jury decision level. Last, this table demonstrates a 

-61- 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

   

  

      

property of the analyses throughout regarding race of the 

defendant. To the extent that race of the defendant appears as 

a factor, it sometimes appears as a bias against white defendants 

and sometimes appears as a bias against black defendants; very 

often, whatever bias appears is not statistically significant. 

Finally, this table is an illustration of a point which the 

court made earlier. At the beginning, in assessing the credi- 

bility of the witnesses, the court noticed that all seemed to 

have something of a partisan bias. Thereafter, it noted that the 

results of certain diagnostics respecting the worst case analysis 

in Woodworth's work were not reported in the exhibits given the 

court. Here, in this table, we are given no outcomes based on 

the larger scaled regressions for the racial variables at the 

jury sentencing level. It is said that the data was not provided 

because it was not possible to conduct simultaneous adjustment 

for all factors in the file because of the limited number of 

penalty trial decisions. From all that the court has learned 

about the methods employed, it does not understand that the 

analysis was impossible, but instead understands that because of 

the small numbers the results produced may not have been sta- 

tistically significant. 

The figures on racial disparities in prosecutorial and jury 

decision-making do not reflect the effects of racial disparities 

that might have resulted in earlier phases of the system. R 933. 

A stepwise regression analysis of the statewide data 1n the 

Charging and Sentencing Study was done in an effort to measure 

fw  



    

AQ 72A 
(Rev. 8/82) 

      

® .. * 

the race of the victim and race of the defendant effects at 

different stages of the procedure from indictment through the 

imposition of the death penalty.’ This regression analysis 

suggested that there is an increased willingness by prosecutors 

to accept pleas to voluntary manslaughter if the race of the 

victim is black. R 1062-68, DB 117. This suggests a possibility 

that the racial effects observed in Table 2 may be the result of 

bias at a plea bargaining stage.8 This is not established by the 

| evidence, and it is immaterial to this case, for Baldus did not 

believe that McCleskey's case would have had any likelihood of 

being disposed of on a voluntary manslaughter plea. R 1064-65. 

Baldus noted that there were strong effects with respect to both 

race of the defendant and race of the victim at the plea bar- 

gaining level. R 1040. It is to be remembered that on this 

point his data base was far from complete. Finally, it is noted 

that this study did not attempt to discern if any of the racial 

disparities noted at the plea bargaining stages could be ex- 

plained by any of the current theories on the factors governing 

plea bargaining. R 1159-63. 

7. What a Multivariate Regression Can Prove 
  

Before one can begin to utilize the results of the Baldus 

study, whether from the larger order regressions or from the 

small models, an understanding of the techniques employed is 

necessary. Such an understanding produced in the court's mind 

other qualifiers which at least in this -case substantially 

diminish the weight of the evidence produced. 

«3 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

Regression analysis is a computational procedure that 

describes how the average outcome in a process, here the death 

sentencing rate, is related to particular characteristics of the 

cases in the system. A least squares regression coefficient 

displays the average difference in the death penalty rate across 

all cases caused by the independent variable of interest. In a 

regression procedure one may theoretically measure the impact of 

one variable of interest while "controlling" for other inde- 

pendent variables. Conceptually, the coefficient of the variable 

of interest is the numerical difference in death sentencing rates 

between all cases which have the variable of interest and all 

cases which do not. R 689, et seq., 1222-23. The chief assump- 

tion of a weighted least square regression is that the effect of 

the variable of interest is consistent across all cases. Wood- 

worth testified that that assumption was not altogether warranted 

in this case.? That the variable of interest, here race of the 

victim, is not the same against all cases is graphically seen in 

a preliminary cross tabulation done by Baldus. In this experi- 

ment, cases which were similar in that they had a few aggravating 

and mitigating factors in common were grouped into four sub- 

groups. The race of the victim disparity ranged from a low of 

+01 through .04 to .15 and finally to .25. The weighted least 

squares regression coefficient for these same cases was .09. R 

781, DB: 76, DB 77. 

Bd 

  

 



    AO 72A 

(Rev. 8/82) 

    
  

Statistical significance is another term which the court and 

the parties used regularly. This term connotes a test for rival 

hypotheses. There is a possibility that an effect could be 

present purely by chance, or by the chance combination of bad 

luck in drawing a sample, or by chance combination of events in 

the charging and sentencing process that may produce an acci- 

dental disparity which is not systematic. Statistical signi- 

ficance computes the probability that such a disparity could have 

arisen by chance, and, therefore, it tests the rival hypothesis 

that chance accounts for the results that were obtained. CR 

1244-45. Tests of statistical significance are a measure of the 

amount by which the coefficient exceeds the known standard 

deviation in the variable, taking into account the size of the 

sample. Considering the values used in this study, a statistical 

significance at the .05 level translates into a two-standard 

deviation disparity, and a statistical significance at the +01 

level approaches a three-standard deviation level. R 1246-47. R 

712-17. As noted earlier a low "P" value, a measure of sta- 

tistical significance, does not, at least in the case of multi- 

variate analysis, assure that the effect observed by any one 

model is in fact real. 

The use of regression analysis is subject to abuse. Close 

correlations do not always say anything about causation. Par Cher 

a regression analysis is no better than the data that went into 

the analysis. It is possible to obtain a regression equation 

which shows a good statistical fit in the sense of both low "P" 

-65- 

  

 



    AO 72A 

(Rev. 8/82) 

    

values and high r2 values where one has a large number of 

variables, even when it is known in advance that the data are 

totally unrelated to each other. R 1636-37, 

What the regression procedure does by algebraic adjustment 

is somewhat comparable to a cross tabulation analysis. It breaks 

down the cases into different sub-categories which are regarded 

as having characteristics in common. The variable of interest is 

calculated for each sub-category and averaged across all sub- 

categories. R 791-92. 

The model tries to explain the dependent variable by the 

independent variables that it is given. It does this by trying to 

make the predicted outcome the same as the actual outcome in 

terms of the factors that it is given. R 1487-88. For example, 

if a regression equation were given ten independent variables in 

a stagewise process, it would guess at the regression coefficient 

for the first variable by measuring the incremental change in the 

dependent variable caused by the addition of cases containing a 

subsequent independent variable. X 29. After the initial 

mathematical computation, the equation then goes back and 

re-computes the coefficients it arrived at earlier, using all of 

the subsequent regression coefficients that it has calculated. It 

continues to go through that process until coefficients which 

best predict actual outcome are arrived at for each variable. X 

43-46. 

“BB 

  

 



   
AO 72A 
{Rev. 8/82) 

  

    

  

    

By its nature, then, the regression equation can produce 

endless series of self-fulfilling prophecies because it always 

attempts to explain actual outcomes based on whatever variables 

it is given. If, for example, the data base included information 

that of the 128 defendants who received the death penalty, 122 of 

them were right-handed, the regression equation would show that 

the system discriminated against right-handed people. This is so 

because that factor occurs so often that it is the most "obvious" 

or "easy" explanation for the outcomes observed. In the case at 

bar, there are 108 white-victim cases where death was imposed and 

20 black-victim cases where death was imposed. DB 63. Accord- 

ingly, the regression coefficients for the racial variables could 

have been artificially produced because of the high incidence of 

cases in which the victim was white. 

Another feature of Baldus's analyses is that he is trying to 

explain dichotomous outcomes {life or death) with largely 

dichotomous independent variables (multiple stabbing present or 

not present) and a regression equation requires continuous 

dependent and independent variables. Accordingly, Baldus 

developed indices for the dependent variable (whether or not the 

death penalty was imposed). He utilized an average rate for a 

group of cases. For the independent variables he developed an 

artificial measure of similarity called an aggravation index to 

control simultaneously for aggravating and mitigating Circum- 

stances so that cases could be ranked on a continuous scale. R 

1484, It is important to understand that the cases being 

fT 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

compared in the regression analyses used here are not at all 

factually similar. Their pEinsipal identity is that their 

aggravation index, the total of all positive regression co- 

efficients minus all negative regression coefficients, is 

similar. X 14-15. The whole study rests on the presumption that 

cases with similar aggravation indexes are similarly situated. R 

1311. This presumption is not only rebuttable, it is rebutted, if 

by nothing else, then by common sense. As Justice Holmes 

  
observed in Towne vs. Eisner, 245 U.S. 418 (1917): 

A word is not a crystal, transparent and 

unchanged, it is the skin of a living thought 

and may vary greatly in color and content 

according to the circumstances and the time 

in which it is used. 

Id. at 425, quoting Lamar vs. United States, 240 U.S. 60, 65 
  

(1916). The same thought, it seems to the court, is apropos for 

the aggravation index. It allows a case with compelling ag- 

gravating circumstances, offset only by a series of insignificant 

mitigating circumstances, to be counted as equal to a case with 

the same level of aggravation and one substantial mitigating 

factor having the same numerical value as the series of trifling 

ones in the first case. The court understands that strength of 

the evidence measures generally are positive coefficients. To 

the extent that this is true, a strong evidentiary case with weak 

aggravating circumstances would be considered the same as a 

brutal murder with very weak evidence. Other examples abound, 

but the point is that there is no logical basis for the assump- 

tion that cases with similar aggravation indices are at all 

-68- 

  

 



    AQ 72A 
(Rev. 8/82) 

    

alike. Further, the aggravation index for any given case is a 

function of the variables that are included in the model. Any 

change in the variables included in the model will also change 

the aggravation index of most, if not all, cases. 

The variability of the aggravation index as factors are 

added or deleted is well demonstrated by Respondent's Exhibit 40. 

One case comparison will serve as an example. In a life sentence 

case, C 54, an aggravation index (or predicted outcome index, R 

1485) was computed using a six-variable model. Calculation 

produced an index of .50. Katz conducted four additional 

regressions, each adding additional factors. By the time the more 

inclusive regression number five was performed, the aggravation 

index or predicted outcome was .08 (0 equals no death penalty, 1 

equals death penalty). In a death case, C 66, the first re- 

gression analysis produced an index of .50. However, the 

aggravation coefficient or predicted outcome rose to .89 when the 

facts of the case were subjected to the fifth regression analy- 

sis. Thence, two cases which under one regression analysis 

appeared to be similar, when subjected to another analysis may 

have a totally different aggravation index. Res. Exh. 40, R 

1483-1501. 

In interpreting the Baldus data it is important to under- 

stand what he means when he says that he has controlled for other 

independent variables or held other individual variables con- 

stant. What these terms usually mean is that a researcher has 

compared cases where the controlled-for variables are present in 

-69- 

  

 



    AO 72A 
(Rev. 8/82) 

      

each case and where the cases are divided into groups where the 

variable of interest is present and where the variable of 

interest is not present. That is not what occurs in regression 

analysis. To be sure, the cases are divided into groups where 

the variable of interest is present and groups where it is not 

present. There is, however, absolutely no assurance that the 

background variables being controlled for are present in all of 

the cases, in any of the cases, or present in the same combina- 

tion in any of the cases. Consequently, other factors are not 

being held constant as that term is usually used. See generally 
  

R152, X 7, 19-25, 

Courts are accustomed to looking at figures on racial 

disparity and understanding that the figure indicates the extent 

or degree of the disparity. It is often said that statistical 

evidence cannot demonstrate discrimination unless it shows gross 

disparities. Contrary to the usual case, the court has learned 

that at least in this case the size of a regression coefficient, 

even one statistically significant at the .05 level, says nothing 

about the specific degree of disparity or discrimination in the 

system. All the regression coefficient indicates is that the 

difference in average outcome where the racial variable is 

present from cases where it is not present is large enough to 

enable one to say that the true mean of both groups are not 

exactly equal. R 1635, 1670-71. Baldus made an effort to 

demonstrate the relative importance of the racial variables by 

showing them in an array of coefficients for other variables. The 

hy £1 PIO 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

court later learned, however, that where some of the variables 

are binary or dichotomous and some are continuous (for example, 

number of mitigating features present), one cannot use the size 

of the regression coefficient as an indication of the relative 

strength of one variable to another. R 1783. 

Consistent with the difficulty in quantifying the effect of 

any variable found to be at work in the system, Baldus testified 

that a regression analysis really has no way of knowing what 

particular factors carry the most weight with the decision-maker 

in any one case. R 1141. Based on his entire analysis Baldus 

was unable to quantify the effect that race of the victim may 

have had in McCleskey's case. R 1083-85. After a review of the 

Baldus study, Berk was unable to say whether McCleskey was 

singled out to receive the death penalty because his victim was 

white, nor was he able to say that McCleskey would have escaped 

the death penalty if his victim had been black. Berk went on to 

testify: 

Models that are developed talk about the 

effects on the average. They do not depict 

the experience of a single individual. What 

they say, for example, that on the average, 

the race of the victim, if it is white, 

increases on the average the probability ... 

(that) the death sentence would be given. 

Whether in a given case that is the answer, 

it cannot be determined from statistics. R 

1785, 

In summary, then, Baldus's findings from the larger scale 
  

regressions or from any of the others must be understood in light 
  

of what his methods are capable of showing. They do not compare 
        “«Il~ 

  

 



    AQ 72A 
(Rev. 8/82) 

identical cases, and the method is incapable of saying whether or 
  

not any factor had a role in the decision to impose the death 
  

penalty in any particular case. A principal assumption which 
  

must be present for a regression analysis to be entirely reliable 
  

is that the effects must be randomly distributed -- that is not 
  

present in the data we have. The regression equation is in- 
  

capable of making qualitative judgments and, therefore, it will 
  

assign importance to any feature which appears frequently in the 
  

data without respect to whether that factor actually influences 
  

the decision-maker. Regression analysis generally does not 
  

control for background variables as that term is usually under- 
  

stood, nor does it compare identical cases. Because Baldus used 
  

an index method, comparable cases will change from model to 
  

model. The regression coefficients do not quantitatively measure 
  

the effect of the variables of interest. 
  

    
With these difficulties, it would appear that multivariate 
  

analysis is ill suited to provide the court with circumstantial 
  

evidence of the presence of discrimination, and it is incapable 
  

of providing the court with measures of qualitative difference in 
  

treatment which are necessary to a finding that a prima facie 
  

case has been established with statistical evidence. Finally, 
  

the method is incapable of producing evidence on whether or not 
  

racial factors played a part in the imposition of the death 
  

penalty in any particular case. To the extent that McCleskey 
  

-]2- 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

contends that he was denied either due process or equal pro- 
  

tection of the law, his methods fail to contribute anything of 
  

value to his cause. 
  

    

8. A Rebuttal to the Hypothesis 
  

A part of Baldus's hypothesis is that the system places a 

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

it would mean that the system would tolerate higher levels of 

aggravation in black victim cases before the system imposes the 

death penalty. 

The respondent postulates a test of this thesis. It is said 

that if Baldus's theory is correct, then one would necessarily 

find aggravation levels in black-victim cases where a life 

sentence was imposed to be higher than in white-victim cases. 

This seems to the court to be a plausible corollary to Baldus's 

proposition. To test this corollary, Katz, analyzing aggravating 

and mitigating factors one by one, demonstrated that in life 

sentence cases, to the extent that any aggravating circumstance 

is more prevalent in one group than the other, there are more 

aggravating features in the group of white-victim cases than in 

the group of black~victim cases. Conversely, there were more 

mitigating circumstances in which black-victim cases had a higher 

proportion of that circumstance than in white-victim cases. R 

1510-15, 1540, Res. Exh. 43, 53, 54. 

“TI 

  

 



    

AO 72A 
(Rev. 8/82) 

  

      

Because Katz used one method to demonstrate relative levels 

of aggravation and Baldus used another, his index method, the 

court cannot say that this experiment alone conclusively demon- 

strates that Baldus's theory is wrong. It is, however, direct 

rebuttal evidence of the theory, and as such, stands to con- 

tradict any prima facie case of system-wide discrimination based 

on race of the victim even if it can be said that the petitioner 

has indeed established a prima facie case. This court does not 

believe that he has. 

9. Miscellaneous Observations on the Statewide Data. 
  

So that a reader may have a better feeling of subsidiary 

findings in the studies and a better understanding of collateral 

issues in the case, some additional observations are presented on 

Baldus's study. 

Some general characteristics of the sample contained in the 

Charging and Sentencing Study which the court finds of interest 

are as follows. The largest group of defendants was in the 18 to 

25-year-old age group. Only ten percent had any history of 

mental illness. Only three percent were high status defendants. 

Only eight percent of the defendants were from out of state. 

Females comprised 13% of the defendants. Of all the defendants 

in the study 35% had no prior criminal record, while 65% had some 

previous conviction. Co-perpetrators were not involved in 79% of 

the cases, and 65% of the homicides were committed by lovers in a 

rage. High emotion in the form of hate, revenge, jealousy or 

rage was present in 66% of the cases. Only one percent of the 

74 

  

 



    

  

AO 72A 
{Rev, 8/82) 

defendants had racial hatred as a motive. Victims provoked the 

defendant in 48% of the cases. At trial 26% confessed and 

offered no defense. Self defense was claimed in 33% of the 

cases, while only two percent of the defendants relied upon 

insanity or delusional compulsion as a defense. Defendants had 

used alcohol or drugs immediately prior to the crime in 38% of 

the cases. In only 24% of the cases was a killing planned for 

more than five minutes. Intimate associates, friends, or family 

members accounted for 44% of the victims. Black defendants 

accounted for 67% of the total, and only 12% of the homicides 

were committed across racial lines. The largest proportion (58%) 

of the homicides were committed by black defendants against black 

victims. R 659, et seq., DB 60.10 

From the data in the Charging and Sentencing Study it is 

learned that 94% of all homicide indictments were for murder. Of 

those indicted for murder or manslaughter 55% did not plead 

guilty to voluntary manslaughter. There were trials for murder in 

45% of the cases and 31% of the universe was convicted of murder. 

In only ten percent of the cases in the sample was a penalty 

trial held, and in only five percent of the sample were defend- 

ants sentenced to death. DB 58, R 64-65. See also DB 59, R 655. 
  

In his analysis of the charging and sentencing data, Baldus 

considered the effect of Georgia statutory aggravating factors on 

death sentencing rates, and several things of interest developed. 

The statutory aggravating circumstances are highly related or 

correlated to one another. That is to say that singularly the 

FG       
 



   
AQ 72A 
(Rev. 8/82) 

  

      

factors have less impact than they do in combination. Even when 

the impact of the statutory aggravating circumstances is adjusted 

for the impact of the presence of others, killing to avoid arrest 

increased the probability of a death sentence by 21 points, and 

committing a homicide during the course of a contemporaneous 

felony increased the probability of getting the death penalty by 

12 points. R 709-11, DB 68. where the B8 and Bl0 factors are 

present together, the death penalty rate is 39%. DB 64. Based 

on these preliminary studies one might conclude that a defendant 

committing a crime like McCleskey's had a greatly enhanced 

probability of getting the death penalty. 

Of the 128 death sentences in the Charging and Sentencing 

study population, 105 of those were imposed where the homicide 

was committed during the course of an enumerated contemporary 

offense. Further, it is noted that the probability of obtaining 

the death penalty is one in five if the B2 factor is present, a 

little better than one in five if the victim is a policeman or 

fireman, and the probability of receiving the death penalty is 

about one in three if the homicide was committed to avoid arrest. 

These, it is said, are the three statutory aggravating factors 

which are most likely to produce the death penalty, and all three 

were present de facto in McCleskey's case. DB Sl. 
  

When the 500 most aggravated cases in the system were 

divided into eight categories according to the level of the 

aggravation index, the death penalty rate rose dramatically from 

0 in the first two categories, to about 7% in the next two, to an 

-76~ 

  

 



  

  

    

average of about 22% in the next two, to a 41% rate at level 

seven, and an 88% rate at level eight. Level eight was composed 

of 58 cases. The death sentencing rate in the 40 most aggravated 

| cases was 100%. DB 90, R 882. Baldus felt that data such as 

this supported a hypothesis arrived at earlier by other social 

science researchers. This theory is known as the liberation 

hypothesis. The postulation is that the exercise of discretion 

is limited in cases where there is little room for choice, If 

the imposition of the death penalty or the convicting of a 

defendant is unthinkable because the evidence is just not there, 

or the aggravation is low, or the mitigation is very high, no 

reasonable person would vote for conviction or the death penalty, 

and, therefore, impermissible factors such as race effects will 

not be noted at those points. Bik. according to the theory, when 

one looks at the cases in the mid-range where the facts do not 

clearly call for one choice or the other, the decision-maker has 

broader freedom to exercise discretion, and in that area you see 

the effect of arbitrary or impermissible factors at work. R 884, 

R 1135.11 

Baldus did a similar rank order study for all cases in the 

second data base. He divided the cases into eight categories 

with the level of aggravation increasing as the category number 

increased. In this analysis he controlled for 14 factors, but 

the record does not show what those factors were. The experiment 

showed that in the first five categories the death sentencing 

rate was less than one percent, and there was no race of the 

-] T= 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

victim or race of the defendant disparity observed. At level six 

and nine statistically significant race of the victim disparities 

appeared at the 9 point and 27 point order of magnitude. Race of 

the defendant disparities appeared at the last three levels, but 

none were statistically significant. A minor race of the victim 

disparity was noted at level 7 but the figure was not trant- 

Ficant. The observed death sentencing rates at the highest three 

levels were two percent, three percent, and 39%. DB 89. Exhibit 

DB 90 arguably supports Baldus's theory that the liberation 

hypothesis may be at work in the death penalty system in that it 

does show higher death sentencing rates in the mid-range cases 

than in those cases with the lowest and highest aggravation 

indices. On the other hand, Exhibit DB 89, which, unlike DB 90, 

is predicated on a multiple regression analysis, shows higher 

racial disparities in the most aggravated level of cases and 

lower or no racial disparities in the mid-range of aggravation. 

Accordingly, the court is unable to find any convincing evidence 

that the liberation hypothesis is applicable in this study. 

Baldus created a 39-variable model which was used for 

various diagnostics. It was also used in an attempt to demon- 

strate that given the facts of McCleskey's case, the probability 

of his receiving the death penalty because of the operation of 

impermissible factors was greatly elevated. Although the model 

is by no means acceptable, 1? it is necessary to understand what 

is and is not shown by the model, as it is a centerpiece for many 

conclusions by petitioner's experts. On the basis of the 39- 

wT Se 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

variable model McCleskey had an aggravation score of .52. 

Woodworth estimated that at McCleskey's level of aggravation the 

incremental probability of receiving the death penalty in a 

white-victim case is between 18 and 23 percentage points. R 

1294, 1738-40, GW 5, Pilg. 2. If a particular aggravating 

circumstance were left out in coding McCleskey's case, it would 

affect the point where his case fell on the aggravation index. R 

1747. Judging from the testimony of Offie Evans, McCleskey 

showed no remorse about the killing and, to the contrary, bragged 

about the killing while in jail. While both of these are 

variables available in the data base, neither is utilized in the 

model. If either were included it should have increased 

McCleskey's index if either were coded correctly on McCleskey's 

questionnaire. Both variables on McCleskey's questionnaire were 

coded as "U," and so even if the variables had been included, 

McCleskey's aggravation index would not have increased because of 

the erroneous coding. If the questionnaire had been properly 

encoded and if either of the variables were included, McCleskey's 

aggravation index would have increased, although the court is 

unable to say to what degree. Judging from GW 8, 1f that 

particular factor had a coefficient as great as .15, the 39~- 

variable or "mid-range" model would not have demonstrated any 

disparity in sentencing rates as a function of the race of the 

victim. 

7 Ge 

  

 



    

  

AQ 72A 
(Rev. 8/82) 

| rR » 

Katz conducted an experiment aimed at determining whether 

the uncertainty in sentencing outcome in mid-range could be the 

result of imperfections of the model. He arbitrarily took the 

first 100 cases in the Procedural Reform Study. He then created 

five different models with progressively increasing numbers of 

variables. His six-variable model had an r2 of .26. His 

3l-variable model had an r2 of .95.13 Using these regression   equations he computed the predictive outcome for each case using 

the aggravation index arrived at through his regression equa- 

tions. As more variables were added, aggravation coefficients in 

virtually every case moved sharply toward 0 in life sentence 

cases and sharply toward 1 in death sentence cases. Respondent's 

Exhibit 40. In the five regression models designed by Katz, 

McCleskey's aggravation score, depending on the number of 

independent variables included, was .70, .75, 1.03, .87, and .85. 

R 1734, Res. Exh. 40. 

Based on the foregoing the court is not convinced that the 
  

liberation hypothesis is at work in the system under study. 
  

Further, the court is not convinced that even if the hypothesis 
  

was at work in the system generally that it would suggest that 
  

impermissible factors entered into the decision to impose the 
  

death penalty upon McCleskey. 
  

On another subject, Baldus testified that in a highly 

decentralized decision-making system it is necessary to the 

validation of a study to determine if the effects noted system- 

wide obtain when one examines the decisions made by the com- 

8       
 



   
AQ 72A 

(Rev. 8/82) 

  

    

partmentalized decision-makers. R 964-69. An analysis was done 

to determine if the racial disparities would persist if decisions 

made by urban decision-makers were compared with decisions made 

by rural decision-makers.l4 No statistically significant race of 

the victim or race of the defendant effect was observed in urban 

decision-making units. A .08 effect, significant at the .05 

level, was observed for race of the victim in rural decision- 

making units, but when logistic regression analysis was used, the 

effect became statistically insignificant. The race of the 

defendant effect in the rural area was not statistically sig- 

nificant. The decisions in McCleskey's case were made by urban 

decision-makers. 

Finally, the court makes the following findings with 

reference to some of the other models utilized by petitioner's 

experts. As noted earlier some were developed through a pro- 

cedure called stepwise regression. What stepwise regression does 

is to screen the variables that are included in the analysis and 

include those variables which make the greatest net contribution 

to the r2. The computer program knows nothing about the nature 

of those variables and is not in a position to evaluate whether 

or not the variable logically would make a difference. If the 

variables are highly correlated, the effect quite frequently is 

to drop variables which should not be dropped from a subject 

matter or substantive point of view and keep variables in that 

make no sense conceptually. So, stepwise regression can present 

a very misleading picture through the presentation of models 

«81 

  

 



    

  

AO T2A ws 
(Rev. 8/82) 

which have relatively high r2 and have significant coefficients 

but which models do not really mean anything. R 1652. Because 

of this the court cannot accord any weight to any evidence 
  

produced by the model created by stepwise regression. 
  

Woodworth conducted a number of tests on five models to 

determine if his measures of statistical significance were valid. 

As there were no validations of the models he selected and none 

can fairly be said on the basis of the evidence before the court 

to model the criminal justice system in Georgia, Woodworth's 

diagnostics provide little if any corroboration to the findings 

produced by such models. R 1252, et seg., GW 4, Table 1. 

In Exhibits DB 96 and DB 97, outcomes which indicate racial 

disparities at the level of prosecutorial decision-making and 

jury decision-making are displayed. At the hearing the court had 

thought that the column under the Charging and Sentencing Study 

might be the product of a model which controlled for sufficient 

background variables to make it partially reliable. Since the 

"hearing the court has consulted Schedule 8 of the Technical 

Appendix (DB 96A) and has determined that only eleven background 

variables have been controlled for, and many significant back- 

ground variables are omitted from the model. The other models 

tested in DB 96 and 97 are similarly under-inclusive. (In this 

respect compare the variables listed on Schedule 8 through 13, 

inclusive, of the Technical Appendix with the variables listed in 

DB 59.) For this reason the court is of the opinion that DB 96 

and DB 97 are probative of nothing.     “BZ   
 



   
AQ 72A 

(Rev. 8/82) 

  

      

10. The Fulton County Data. 
  

McCleskey was charged and sentenced in Fulton County, 

Georgia.ld Recognizing that the impact of factors, both per- 

missible and impermissible, do vary with the decision-maker, and 

recognizing that some cases in this circuit have required that 

the statistical evidence focus on the decisions where the 

sentence was imposed, petitioner's experts conducted a study of 

the effect of racial factors on charging and sentencing in Fulton 

County. 

The statistical evidence on the impact of racial variables 

is inconclusive. If one controls for 40 or 50 background 

variables, multiple regression analysis does not produce any 

statistically significant evidence of either a race of the 

defendant or race of the victim disparity in Fulton County. R 

1000. Baldus acedia stepwise regression analysis in an effort to 

determine racial disparities at different stages of the criminal 

justice system in the county. The stepwise regression procedure 

selected 23 variables. Baldus made no judgment at all concerning 

the appropriateness of the variables selected by the computer. 

The study indicated a statistically significant race of the 

victim and race of the defendant effect at the plea bargaining 

stage and at the stage where the prosecutor made the decision to 

advance the case to a penalty trial. Overall, there was no 

statistically significant evidence that the race of the victim or 

race of the defendant played any part in who received the death 

penalty and who did not. As a matter of fact, the coefficients 

-83- 

  

 



    AO 72A 
(Rev. 8/82) 

    

for these two variables were very modestly negative which would 

indicate a higher death sentencing rate in black-victim cases and 

in white-defendant cases. Neither of the coefficients, however, 

approach statistical significance. R 1037-49. 

The same patterns observed earlier with reference to the 

relative aggravation and mitigation of white and black=victim 

cases, respectively, continue when the Fulton County data is 

reviewed. In Fulton County, as was the case statewide, cases in 

which black defendants killed white victims seemed to be more 

aggravated than cases in which white defendants killed white 

victims. R 1554, 1561, Res. Exh. 68. 

Based on DB 114 and a near neighbor analysis, Baldus offered 

the opinion that in cases where there was a real risk of a death 

penalty one could see racial effects. R 1049-50. DB 114 is 

statistically inconclusive so far as the court can determine. The 

cohort study or near neighbor analysis also does not offer any 

support for Baldus's opinion. Out of the universe of cases in 

Fulton County Baldus selected 32 cases that he felt were near 

neighbors to McCleskey. These ran the gambit from locally 

notorious cases against Timothy Wes McCorquodale, Jack Carlton 

House, and Marcus Wayne Chennault, to cases that were clearly not 

as aggravated as McCleskey's case. Baldus then divided these 32 

cases into three groups: More aggravated, equal to McCleskey, 

and less aggravated. 

«34~ 

  

 



   
AQ 72A 

(Rev. 8/82) 

  

    

The court has studied the cases of the cohorts put in the 

same category as McCleskey and cannot identify either a race of 

the victim or race of the defendant disparity. All of the cases 

involve a fact pattern something like McCleskey's case in that 

the homicides were committed during the course of a robbery and 

in that the cases involve some gratuitous violence, such as - 

multiple gunshots, etc. Except in one case, the similarities end 

there, and there are distinctive differences that can explain why 

either no penalty trial was held or no death sentence was 

imposed. 

As noted above, Dr. Baldus established that the presence of 

the B10 factor, that is that the homicide was committed to stop 

or avoid an arrest, had an important predictive effect on the 

imposition of the death penalty. Also, the fact that the victim 

was a police officer had some predictive effect. Keeping these 

thoughts in mind, we turn to a review of the cases. Defendant 

Thornton's case (black defendant/black victim) did not involve a 

police officer. Further, Thornton was very much under the 

influence of drugs at the time of the homicide and had a history 

of a "distinct alcohol problem." In Dillard's case (black de- 

fendant/black victim) the homicide was not necessary to prevent 

an arrest and the victim was not a police officer. Further, 

Dillard's prior record was less serious than McCleskey's. In 

Leach's case (black defendant/black victim) the homicide was not 

committed to prevent an arrest and the victim was not a police 

officer. Further, Leach had only one prior felony and that was 

“85m 

  

 



    

AO 72A 
{Rev. 8/82) 

  

    

for motor vehicle theft. Leach went to trial and went through a 

penalty trial. Nowhere in the coder's summary is there any 

information available on Leach's defense or on any evidence of 

mitigation offered. 

In the case of Gantt (black defendant/white victim) the 

homicide was not committed to avoid an arrest and the victim was 

not a police officer. Further, Gantt relied on an insanity 

defense at trial and had only one prior conviction. Crouch's 

case (white defendant/white victim) did not involve a homicide 

committed to prevent an arrest and the victim was not a police 

officer. Crouch's prior record was not as severe as McCleskey's 

and, unlike McCleskey, Crouch had a prior history of treatment by 

a mental health professional and had a prior history of habitual 

drug use. Further, and importantly, the evidence contained in 

the summary does not show that Crouch caused the death of the 

victim. 

Arnold is a case involving a black defendant and a white 

victim. The facts are much the same as McCleskey's except that 

the victim was not a police officer but was a storekeeper. 

Arnold's case is aggravated by the fact that in addition to 

killing the victim, he shot at three bystander witnesses as he 

left the scene of the robbery, and he and his co-perpetrators 

committed another armed robbery on that day. Arnold was tried 

and sentenced to death. Henry's case (black defendant/white 

victim) did not involve a homicide to escape an arrest or a 

police victim. Henry's prior record was not as serious as 

-B6~ 

  

 



  

   AO 72A 
(Rev. 8/82) 

  

McCleskey's, and, from the summary, it would appear that there 

was no direct evidence that the defendant was the triggerman, nor 

that the State considered him to be the triggerman. 

In sum, it would seem to the court that Arnold and McCles- 

key's treatments were proportional and that their cases were more 

aggravated and less mitigated than the other cases classified by 

Baldus as cohorts. This analysis does not show any effect based 

| either upon race of the defendant or race of the victim. See 

generally R 985-99, DB 110. 
  

Another type of cohort analysis is possible using Fulton 

County data. There were 17 defendants charged in connection with 

the killing of a police officer since Furman. Six of those in 

Baldus's opinion were equally aggravated to McCleskey's case. 

Four of the cases involved a black defendant killing a white 

officer; two involved a black defendant killing a black officer; 

and one involved a white defendant killing a white officer. There 

were two penalty trials. McCleskey's involved a black defendant 

killing a white officer; the other penalty trial involved a black 

defendant killing a black officer. Only McCleskey received a 

death sentence. Three of the offenders pled guilty to murder, 

and two went to trial and were convicted and there was no penalty 

trial. On the basis of this data and taking the liberation 
  

hypothesis into account, Baldus expressed the opinion that a 
  

racial factor could have been considered, and that factor might 
  

have tipped the scales against McCleskey. R 1051-56, DB 116. The 
  

court considers this opinion unsupported conjecture by Baldus. 
      -87- 

  

 



    AQ 72A 

(Rev. 8/82) 

    

D. Conclusions of Law 

Based upon the legal premises and authorities set out above 

the court makes these conclusions of law. 

The petitioner's statistics do not demonstrate a prima facie 

case in support of the contention that the death penalty was 

imposed upon him because of his race, because of the race of the 

victim, or because of any Eighth Amendment concern. Except for 

analyses conducted with the 230-variable model and the 250- 

variable model, none of the other models relied upon by the 

petitioner account to any substantial degree for racially neutral 

variables which could have produced the effect observed. The 

state-wide data does not indicate the likelihood of discrim- 

inatory treatment by the decision-makers who sought or imposed 

the death penalty and the Fulton County data does not produce any 

statistically significant evidence on a validated model nor any 

anecdotal evidence that race of the victim or race of the 

defendant played any part in the decision to seek or impose the 

death penalty on McCleskey. 

The data base for the studies is substantially flawed, and 

the methodology utilized is incapable of showing the result of 

racial variables on cases similarly situated. Further, the 

methods employed are incapable of disclosing and do not disclose 

quantitatively the effect, if any, that the two suspect racial 

variables have either state-wide, county-wide or in McCleskey's 

case. Accordingly, a court would be incapable of discerning the 

degree of disparate treatment if there were any. Finally, the 

«88 

  

 



   
AQ 72A 
(Rev. 8/82) 

  

    

largest models utilized are insufficiently predictive to give 

adequate assurances that the presence of an effect by the two 

| racial variables is real. 

Even if it were assumed that McCleskey had made out a prima 

facie case, the respondent has shown that the results are not the 

product of good statistical methodology and, further, the 

respondent has rebutted any prima facie case by showing the 

existence of another explanation for the observed results, i.e., 

that white victim cases are acting as proxies for aggravated 

cases and that black victim cases are acting as proxies for 

mitigated cases. Further rebuttal is offered by the respondent 

in its showing that the black-victim cases being left behind at 

the life sentence and voluntary manslaughter stages, are less 

aggravated and more mitigated than the white-victim cases 

disposed of in similar fashion. 

Further, the petitioner has failed to carry his ultimate 

burden of persuasion. Even in the state-wide data, there is no 

consistent statistically significant evidence that the death 

penalty is being imposed because of the race of the defendant. A 

persistent race of the victim effect is reported in the state- 

wide data on the basis of experiments performed utilizing models 

which do not adequately account for other neutral variables. 

These tables demonstrate nothing. When the 230-variable model is 

utilized, a race of the victim and race of the defendant effect 

is demonstrated. When all of the decisions made throughout the 

process are taken into account it is theorized but not demon- 

“89 

  

 



    AO 72A 
(Rev. 8/82) 

  

  

    

» 
3 

strated that the point in the system at which these impermissible 

considerations come into play is at plea bargaining. The study, 

however, is not geared to, nor does it attempt to control for 

other neutral variables to demonstrate that there is unfairness 

in plea bargaining with black defendants or killers of white 

victims. In any event, the petitioner's study demonstrates that 

at the two levels of the system that matter to him, the decision 

to seek the death penalty and the decision to impose the death 

penalty, there is no statistically significant evidence produced 

by a reasonably comprehensive model that prosecutors are seeking 

the death penalty or juries are imposing the death penalty 

because the defendant is black or the victim is white. Further, 

the petitioner concedes that his study is incapable of demon- 

strating that he, specifically, was singled out for the death 

penalty because of the race of either himself or his victim. 

Further, his experts have testified that neither racial variable 

oreponderates in the decision-making and, in the final analysis, 

that the seeking or the imposition of the death penalty depends 

on the presence of neutral aggravating and mitigating circum- 

stances. For this additional reason, the court finds that even 

accepting petitioner's data at face value, he has failed to 

demonstrate that racial considerations caused him to receive the 

death penalty. 

For these, among other, reasons the court denies the 

petition for a writ of habeas corpus on this issue. 

«GO 

  

 



    AQ 72A 
(Rev. 8/82) 

III. CLAIM "A" -- THE GIGLIO CLAIM. 

Petitioner asserts that the failure of the State to disclose 

an "understanding" with one of its key witnesses regarding 

pending criminal charges violated petitioner's due process 

rights. In Giglio vs. United States, 405 U.S. 150 (1971) the 
  

Supreme Court stated: 

As long ago as Mooney vs. Holohan, 294 

U.S. 103, 112 (193%), this Court made clear 

that deliberate deception of a court and 

jurors by the presentation of known false 

evidence is incompatible with "rudimentary 

demands of justice." This was reaffirmed in 

Pyle vs. Kansas, 317 U.S. 21] (1942). In 

Napue vs. Illinois, 360 U.S. 264 (1959), we 

said, "(tlhe same result obtains when the 

State, although not soliciting false evi- 

dence, allows it to go uncorrected when it 

appears.” Id., at 269. Thereafter Brady vs. 

Maryland, 373 U.S., at 87, held that sup- 

pression of material evidence justifies a new 

trial "irrespective of the good faith or bad 

faith of the prosecution." See American Bar 
Association, Project on Standards for 

Criminal Justice, Prosecution Function and 

the Defense Function §3.1l1l(a). When the 

"reliability of a given witness may well be 

determinative of guilt or innocence,” 

nondisclosure of evidence affecting credi- 

bility falls within this general rule. 405 

U.S. 150, 153-54, 

  

  

  

  

  

In Giglio an Assistant United States Attorney had promised 

leniency to a co-conspirator in exchange for his testimony 

against defendant. However, the Assistant U. S. Attorney who 

handled the case at trial was unaware of this promise of leniency 

and argued to the jury that the witness had "received no promises 

that he would not be indicted." The Supreme Court held that 

neither the Assistant's lack of authority nor his failure to   9] =   
  

 



    

  

AO 72A 
(Rev. 8/82) 

  

    
  

inform his superiors and associates was controlling. The 

prosecution's duty to present all material evidence to the jury 

was not fulfilled and thus constituted a violation of due process 

requiring a new trial. Id. at 150. 

It is clear from Giglio and subsequent cases that the rule 

announced in Giglio applies not only to traditional deals made by 

the prosecutor in exchange for testimony but also to any promises 

or understandings made by any member of the prosecutorial team, 

which includes police investigators. See United States vs. 
  

Antone, 603 F.2d 566, 569 (5th Cir. 1979) (Giglio analysis held 

to apply to understanding between investigators of the Florida 

Department of Criminal Law Enforcement and the witness in a 

federal prosecution). The reason for giving Giglio such a broad 

reach is that the Giglio rule is designed to do more than simply 

prevent prosecutorial misconduct. It is also a rule designed to 

insure the integrity of the truth-seeking process. As the Fifth 

Circuit stated in United States vs. Cawley, 481 P.28 702 (5th 
  

Cir. 1973), "[wle read Giglio and .Tashman and Goldberg (sic) to 
  

mean simply that the jury must be apprised of any promise which 

induces a key government witness to testify on the government's 

behalf." Id. at 707. More recently, the Eleventh Circuit has 

stated: 

The thrust of Giglio and its progeny has been 

to ensure that the jury know the facts that 

might motivate a witness in giving testimony, 

and that the prosecutor not fraudulently 

conceal such facts from the jury. We must 

focus on "the impact on the jury." Smith vs. 
  

GD  



    

  

AO 72A 
(Rev. 8/82) ® pa 

Kemp, 715 F.2d 1459, 1467 {llth Cir. 1983) 

(quoting United States Vs. Anderson, 574 F.2d 

1347, 1356 (5th Cir. 1978)). 
  

In the present case the State introduced at petitioner's 

trial highly damaging testimony by Offie Gene Evans, an inmate of 

Fulton County Jail, who had been placed in solitary confinement 

in a cell adjoining petitioner's. Although it was revealed at 

trial that the witness had been charged with escaping from a 

federal halfway house, the witness denied that any deals or 

promises had been made concerning those charges in exchange for 

his testimony.1® The jury was clearly left with the impression 

that Evans was unconcerned about any charges which were pending 

against him and that no promises had been made which would affect 

his credibility. However, at petitioner's state habeas corpus 

hearing Evans testified that one of the detectives investigating 

the case had promised to speak to federal authorities on his 

behalf.l7 It was further revealed that the escape charges 

pending against Evans were dropped subsequent to McCleskey's 

trial. 

After hearing the testimony, the habeas court concluded that 

the mere ex parte recommendation by the detective did not trigger 
  

the applicability of Giglio. This, however, is error under United 

States vs. Antone, 603 F.2d 566, 569 (5th Cir. 1979) and cases 
  

cited therein. A promise, made prior to a witness's testimony, 

that the investigating detective will speak favorably to federal 

authorities concerning pending federal charges is within the 

scope of Giglio because it is the sort of promise of favorable   “G3     
 



    

  

ae . » 
(Rev. 8/82) 

treatment which could induce a witness to testify falsely on 

behalf of the government. Such a promise of favorable treatment 

could affect the credibility of the witness in the eyes of the 

jury. As the court observed in United States vs. Barham, 595 
  

F.2d 231 (5th Cir. 1979), cert. denied, 450 U.S. 1002, the 
  

defendant is "entitled to a jury that, before deciding which 

story to credit, was truthfully apprised of any possible interest 

of any Government witness in testifying falsely." Id. at 243 

(emphasis in original). 

A finding that the prosecution has given the witness an 

undisclosed promise of favorable treatment does not necessarily 

warrant a new trial, however. As the Court observed in Giglio: 

We do not, however, automatically require a 

new trial whenever "a combing of the prose- 

cutors' files after the trial has disclosed 

evidence possibly useful to the defense but 

not likely to have changed the verdict. on 

United States vs. Keogh, 391 F.2d 138, 148 

[C A. 7 1968). A Einding of materiality of 

the evidence is required under Brady, supra, 

at 87. A new trial is required if “the false 

testimony could ... in any reasonable 

likelihood have affected the judgment of the 

jury ...." 405 U.S. at 134. 

  

  

In United States vs. Anderson, 574 F.2d 1347 (5th Cir. 1978), the 
  

court elaborated upon the standard of review to be applied in 

cases involving suppression of evidence impeaching a prosecution 

witness: 

The reviewing court must focus on the impact 

on the jury. A new trial is necessary when 

there is any reasonable likelihood that 

disclosure of the truth would have affected 

the judgment of the jury, that is, when there 

is a reasonable likelihood its verdict might   “G4     
 



    AQ 72A 
(Rev. 8/82) 

    

have been different. We must assess both the 
weight of the independent evidence of guilt 
and the importance of the witness' testimony, 
which credibility affects. Id. at 1356. 

In other cases the court has examined the extent to which other 

impeaching evidence was presented to the jury to determine 

whether or not the suppressed information would have made a 

difference. E.g., United States vs. Antone, 603 F.2d 566 (5th 
  

Cir. 1979). 

In the present case the testimony of Evans was damaging to 

petitioner in several respects. First, he alone of all the 

witnesses for the prosecution testified that McCleskey had been 

wearing makeup on the day of the robbery. Such testimony 

obviously helped the jury resolve the contradictions between the 

descriptions given by witnesses after the crime and their 

{t=conct identifications of petitioner. Second, Evans was the 

only witness, other than the codefendant, Ben Wright, to testify 

that McCleskey had admitted to shooting Officer Schlatt. No 

murder weapon was ever recovered. No one saw the shooting. Axide 

from the damaging testimony of Wright and Evans that McCleskey 

had admitted the shooting, the evidence that McCleskey was the 

triggerman was entirely circumstantial. Finally, Evans' testi- 

mony was by far the most damaging testimony on the issue of 

malice.l8 

In reviewing all of the evidence presented at trial, this 

court cannot conclude that had the jury known of the promise made 

by Detective Dorsey to Offie Evans, that there is any reasonable 

SH 

  

 



    

  

AO 72A ES 
(Rev. 8/82) : 

likelihood that the jury would have reached a different verdict 

on the charges of armed robbery. Evans's testimony was merely 

cumulative of substantial other testimony that McCleskey was 

present at the Dixie Furniture Store robbery. However, given the 

circumstantial nature of the evidence that McCleskey was the 

triggerman who killed Officer Schlatt and the damaging nature of 

Evans's testimony as to this issue and the issue of malice, the 

court does find that the jury may reasonably have reached a 

different verdict on the charge of malice murder had the promise | 

of favorable treatment been disclosed. The court's conclusion in 

this respect is bolstered by the fact that the trial judge, in 

charging the jury as to murder, instructed the jury that they 

could find the defendant guilty of either malice murder or felony 

murder. After approximately two hours of deliberation, the jury 

. asked the court for further instructions on the definition of 

malice. Given the highly damaging nature of Evans's testimony on 

the issue of malice, there is a reasonable likelihood that 

disclosure of the promise of favorable treatment to Evans would 

have affected the judgment of the jury on this issue.1? 

As the Fifth Circuit observed in United States vs. Barham, 
  

598 P.2d 231 (35th Cir.), cert, denied, 450 U.S..1002 (1979, 
  

another case involving circumstantial evidence bolstered by the 

testimony of a witness to whom an undisclosed promise of favor- 

able treatment had been given: | 

There is no doubt that the evidence in this 
case was sufficient to support a verdict of 
guilty. But the fact that we would sustain a 
conviction untainted by the false evidence is 

Ge         
 



    

  

AO 72A : 

(Rev. 8/82) 
» 

not the question. After all, we are not the 

body which, under the Constitution, is given 

the responsibility of deciding guilt or 

innocence. The jury is that body, and, again 

under the Constitution, the defendant is 

entitled to a jury that is not laboring under 

a Government-sanctioned false impression of 

material evidence when it decides the 

question of guilt or innocence with all its 

ramifications. 

We reiterate that credibility was especially 

important in this case in which two sets of 

witnesses -- all alleged participants in one 

or more stages of a criminal enterprise 

--presented irreconcilable stories. Barham 

was entitled to a jury that, before deciding 

which story to credit, was truthfully 

apprised of any possible interest of any 

Government witness in testifying falsely. 

Knowledge of the Government's promises to 

Joey Shaver and Diane and Jerry Beech would 

have given the jury a concrete reason to 

believe that those three witnesses might have 

fabricated testimony in order to avoid 

prosecution themselves or minimize the 

adverse consequences of prosecution. ... And 

the subsequent failure of the Government to 

correct the false impression given by Shaver 

and the Beeches shielded from jury consider- 

ation yet another, more persuasive reason to 

doubt their testimony -- the very fact that 

they had attempted to give the jury a false 

impression concerning promises from the 

Government. In this case, in which credi- 

bility weighed so heavily in the balance, we 

cannot conclude that the jury, had it been 

given a specific reason to discredit the 

testimony of these key Government witnesses, 

would still have found that the Government's 

case and Barham's guilt had been established 

beyond a reasonable doubt. Id. at 242-43 
(emphasis in original). 

Because disclosure of the promise of favorable treatment and 

correction of the other falsehoods in Evans' testimony could 

reasonably have affected the jury's verdict on the charge of 

«97=       
 



    AO 72A 

(Rev. 8/82) 

    

\ 

malice murder, petitioner's conviction and sentence on that 

charge are unconstitutional.20 The writ of habeas corpus must 

therefore issue. 
® 

IV. CLAIM "C" -- THE SANDSTROM CLAIM. 
  

Petitioner claims that the trial court's instructions to the 

jury deprived him of due process because they unconstitutionally 

relieved the prosecution of its burden of proving beyond a 

| reasonable doubt each and every essential element of the crimes 

for which defendant was convicted. Specifically, petitioner 

objects to that portion of the trial court's charge which stated: 

One section of our law says that the acts of 

a person of sound mind and discretion are 

presumed to be the product of the person's 

will, and a person of sound mind and dis- 

cretion is presumed to intend the natural and 

probable consequences of his acts, but both 

of these presumptions may be rebutted.?l 

Trial Transcript at 996. 

It is now well established that the due process clause 

"protects the accused against conviction except upon proof beyond 

a reasonable doubt of every fact necessary to constitute the 

crime with which he is charged."™ In Re Winship, 397 U.S. 358, 
  

364 (1970). Jury instructions which relieve the prosecution of 

this burden or which shift to the accused the burden of per- 

suasion on one or more elements of the crime are unconstitu- 

tional. Sandstrom vs. Montana, 442 U.S. 510 (1979); Mullaney vs. 
  

  

wilbur, 421 U.S. 684 (1975). 

“98 

  

 



   
AO 72A 

(Rev. 8/82) 

  

In analyzing a Sandstrom claim the court must first examine 
  

the crime for which the petitioner has been convicted and then 

examine the complained-of charge to determine whether the charge 

unconstitutionally shifted the burden of proof on any essential 

element of the crime. See Lamb vs. Jernigan, 633 F.2d 1332, 
  

1335-36 (llth Cir. 1982), cert. denied, 103 S.Ct. 1276 (1983). If 
  

the reviewing court determines that a reasonable juror would have 

understood the instruction either to relieve the prosecution of 

its burden of proof on an essential element of the crime or shift 

to the defendant the burden of persuasion on that element the 

conviction must be set aside unless the reviewing court can state 

that the error was harmless beyond a reasonable doubt. Lamb vs. 
  

  

    
Jernigan, supra; Mason vs. Balkcom, 669 F.2d 222 {5th Cir. Unit B 

1982), cert. denied, 103 S.Ct. 1260 (1983) .22 
  

Petitioner was convicted of armed robbery and malice murder. 

The offense of armed robbery under Georgia law contains three 

elements: (1) A taking of property from the person or the 

immediate presence of a person, (2) by use of an offensive 

weapon, (3) with intent to commit theft.23 The offense of murder 

also contains three essential elements: (1) A homicide; (2) 

malice aforethought; and (3) unlawfulness.?24 See Lamb vs. 
  

Jernigan, supra; Holloway vs. McElroy, 632 F.28 605, 628 (5th 
  

Cir. 1980), cert, denied, 431 U.S. 1028 (1981), The malice 
  

element, which distinguishes murder from the lesser offense of 

voluntary manslaughter, means simply the intent to kill in the 

absence of provocation. In Lamb vs. Jernigan the court concluded 
  

-99- 

  

 



    

  

AQ 72A 

{Rev. 8/82) 

that "malice, including both the intent component and the lack of 

provocation or justification, is an essential element of murder 

under Ga. Code Ann. §26-1101(a) that Mullaney and its progeny 
  

require the State to prove beyond a reasonable doubt." 683 F.2d 

at 1337. Since the intent to commit theft is an essential 

element of the offense of armed robbery, the State must also 

prove this element beyond a reasonable doubt.   In analyzing the jury instructions challenged in the present 

case to determine whether they unconstitutionally shift the 

burden of proof on the element of intent, the court has searched 

for prior decisions in this circuit analyzing similar language. 

These decisions, however, provide little guidance for they reach 

apparently opposite results on virtually identical language. In 

Sandstrom the Supreme Court invalidated a charge which stated 
  

that "[tlhe law presumes that a person intends the ordinary 

consequences of his acts," 442 U.S. at 513. The Court held that 

the jury could have construed this instruction as either creating 

a conclusive presumption of intent once certain subsidiary facts 

had been found or shifting to the defendant the burden of 

persuasion on the element of intent. The Court held both such 

effects unconstitutional. Like the instruction in Sandstrom, the 
  

instruction at issue in the present case stated that "the acts of 

a person of sound mind and discretion are presumed to be the 

product of the person's will, and a person of sound mind and 

discretion is presumed to intend the natural and probable 

consequences of his acts, but both of these presumptions may be 

-100~         
 



    AQ 72A 

(Rev. 8/82) 

    

rebutted.” This presumption would appear on its face to shift 

the burden of persuasion to the defendant. It does not contain 

the permissive language (intent "may be presumed when it would be 

the natural and necessary consequence of the particular acts.") 

which the Lamb court ruled created only a permissive inference 

rather than a mandatory presumption. Rather, the instruction at 

issue here states that a person is presumed to intend the natural 

and probable consequences of his acts. On its face this in- 

struction directs the jury to presume intent unless the defendant 

rebuts it. This would appear to be the sort of burden-shifting 

instruction condemned by Sandstrom. This conclusion is supported 
  

by Franklin vs. Francis, 720 F.2d 1206 (llth Cir. 1983) which 
  

held that language virtually identical to that involved in the 

present case23 violated Sandstrom. In that case the court 
  

declared: 

This is a mandatory rebuttable presumption, 

as described in Sandstrom, since a reasonable 

juror could conclude that on finding the 

basic facts (sound mind and discretion) he 

must find the ultimate fact (intent for the 

natural consequences of an act to occur) 

unless the defendant has proven the contrary 

by an undefined quantum of proof which may be 

more than "some" evidence. 720 F.2d at 1210. 

  

However, in Tucker vs. Francis, F.2d , No. 83-8466 (llth 
  

cir., Jan. 16, 1984) another panel of the Eleventh Circuit, 

including the author of the Franklin opinion, reviewed language 
  

identical to that in Franklin and concluded that it created no 
  

more than a permissive inference and did not violate Sandstrom. 
  

-101~ 

  

 



    AO 72A 
(Rev. 8/82) 

    

\ 

The court in Tucker relied upon the fact that the trial judge 

instructed the jury in other parts of his charge that criminal 

intent was an essential element of the crime and was a fact to be 

determined by the jury. The court also focused on the fact that 

the charge also stated that "a person will not be presumed to act 

with criminal intention, but the trier of fact, that is you the 

jury, may find such intention upon consideration of the words, 

conduct, demeanor, motive and all other circumstances connected 

with the act for which the accused is prosecuted." Tucker, 
  

supra, Slip Op. at 28. Examining the objectionable language in 

the context of the entire instruction under Cupp vs. Naughten, 
  

414 U.S. 14I (1973), the court concluded that the instruction 

would not unconstitutionally mislead the jury as to the prose- 

cution's burden of proof. Tucker, supra, Slip Op. at 28. The 
  

problem with this reasoning is that the exact same instructions 

were contained in the charge given to the jury in Franklin vs. 
  

Francis. See Franklin vs. Francis, 720 F.2d at 1208 n. 2. This 
  

court can find no principled way of distinguishing between the 

charges at issue in Franklin and in Tucker and can discern no 
  

reason why the charge in Franklin would create a mandatory 
  

rebuttable presumption while the charge in Tucker would create 

only a permissive inference. The Tucker court did not explain 

this inconsistency and in fact did not even mention Franklin. 
  

The charge at issue in the present case is virtually 

identical to those involved in Franklin and in Tucker. This 
  

court is bound to follow Tucker vs. Francis, which is the latest 
  

-102~ 

  

 



    

  

AQ 72A 
(Rev. 8/82) 

  
  

  

  

expression of opinion on this subject by this circuit. The 

court holds that the instruction complained of in this case, 

taken in the context of the entire charge to the jury, created 

only a permissive inference that the jury could find intent based 

upon all the facts and circumstances of the case and thus did not 

|violate Sandstrom. Tucker vs. Francis, supra. 
  

Having held that the instruction was not unconstitutional 

under Sandstrom, there is no need to examine the issue of 
  

'harmlessness. However, the court expressly finds that even if 

the challenged instructions violated Sandstrom, the error was 
  

harmless beyond a reasonable doubt. The jury had overwhelming 

evidence that petitioner was present at the robbery and that he 

| was the only one of the robbers in the part of the store from 

which the shots were fired. The jury also had evidence that he 

alone of the robbers was carrying the type of weapon that killed 

Officer Schlatt. Finally, the jury had the testimony of Ben 

wright and Offie Evans that McCleskey had not only admitted 

killing Officer Schlatt but had even boasted of his act. Looking 

at the totality of the evidence presented and laying aside 

questions of credibility which are the proper province of the 

jury, this court cannot conclude that there is any reasonable 

likelihood that the intent instruction, even 1f erroneous, 

contributed to the jury's decision to convict petitioner of 

malice murder and armed robbery. Petitioner's Sandstrom claim 
  

is, therefore, without merit.     
  

-103~-  



    AO 72A 
(Rev. 8/82) 

  

Ve CLAIM "L" -- PROSECUTORIAL MISCONDUCT AT THE SENTENCING 

PHASE. 

In this claim petitioner argues that the Assistant District 

Attorney improperly referred to the appellate process during his 

arguments to the jury at the sentencing phase of petitioner's 

trial.2® References to the appellate process are not per se 

unconstitutional unless on the record as a whole it can be said 

that it rendered the entire trial fundamentally unfair. 

McCorquodale vs. Balkcom, 705 P.2d 1353, 1556 (lith Cir. 1983); 
  

Corn vs. Zant, 708 F.2d 549, 557 (llth Cir. 1983). 
  

The prosecutor's arguments in this case did not intimate to 

the jury that a death sentence could be reviewed or set aside on 

appeal. Rather, the prosecutor's argument referred to peti- 

tioner's prior criminal record and the sentences he had received. 

The court cannot find that such arguments had the effect of 

diminishing the jury's sense of responsibility for its wzlibera- 

tions on petitioner's sentence. Insofar as petitioner claims 

that the prosecutor's arguments were impermissible because they 

had such an effect, the claim is without merit.2’/ 

VI. CLAIM "B" -- TRIAL COURT'S REFUSAL TO PROVIDE PETI- 

TIONER WITH FUNDS TO RETAIN HIS OWN EXPERT WITNESS. 

Petitioner contends that the trial court's refusal to grant 

funds for the employment of a ballistics expert to impeach the 

testimony of Kelley Fite, the State's ballistics expert, denied     -104~ 

  

 



   
AO 72A 
(Rev. 8/82) 

  

    

him due process. This claim is clearly without merit for the 

reasons provided in Moore Vs. Zant, F.2d , No. 82-8683 
  

(iith Cir., Dec. 20, 1983). 

Under Georgia law the appointment of an expert in a case 

such as this ordinarily lies within the discretion of the trial 

court. See Whitaker vs. State, 246 Ga. 163, 269 S.E.2d 436 
  

(1980). In this case the State presented an expert witness to 

present ballistics evidence that the bullet which killed Officer 

Schlatt was probably fired from a gun matching the description of 

the gun petitioner had stolen in an earlier robbery and which 

matched the description of the gun several witnesses testified 

the petitioner was carrying on the day of the robbery at the 

Dixie Furniture Company. Petitioner had ample opportunity to 

examine the evidence prior to trial and to subject the expert to 

a thorough cross-examination. Nothing in the record indicates 

that the expert was biased or incompetent. This court cannot 

conclude therefore that the trial court abused its discretion in 

denying petitioner funds for an additional ballistics expert. 

VII. CLAIM "D" -- TRIAL COURT'S INSTRUCTIONS REGARDING USE 

OF EVIDENCE OF OTHER CRIMES AT GUILT STAGE OF PETITIONER'S TRIAL. 

Petitioner claims that the trial court's instructions 

regarding the purposes for which the jury could examine evidence 

that petitioner had participated in other robberies for which he 

had not been indicted was overly broad and diminished the 

reliability of the jury's guilt determination. 

=105- 

  

 



   
   AO 72A & og 

(Rev. 8/82) 
| 

During the trial the prosecution introduced evidence that 

petitioner had participated in armed robberies of the Red Dot 

Grocery Store and the Red Dot Fruit Stand. At that time the 

trial judge cautioned the jury that the evidence was admitted for 

the limited purpose of "aiding in the identification and il- 

lustrating the state of mind, plan, motive, intent and scheme of 

the accused, if in fact it does to the jury so do that," The 

evidence tended to establish that petitioner had participated in 

earlier armed robberies employing the same modus operandi and 

that in one of these robberies he had stolen what was alleged to 

have been the weapon that killed Officer Schlatt. Such evidence 

is admissible under Georgia law. See Hamilton vs. State, 239 Ga. 
  

72, 235 S.£.24 515 (1977). Petitioner objects that the trial 

court's instructions regarding the use of this evidence were 

overbroad because "(a) the prosecution itself had offered the 

evidence of other transactions for the purpose of showing the 

identity of the accused rather than to show intent or state of 

mind, and (b) it is irrational to instruct that evidence of an 

accused's participation in another transaction where a murder did 

not occur is probative of the accused's intent to commit malice 

murder." Petitioner's Memorandum of Law in Support of Issuance 

of the Writ at 10-11. Both of these contentions are without 

merit. First, the court sees nothing in the court's instruc- 

tions to support petitioner's contention that the jury was 

allowed to find intent to commit malice murder from the evidence 

of the prior crimes. Petitioner was charged with armed robbery 

-106-       
 



   
AO 72A 
(Rev. 8/82) 

  

    

and murder. The evidence of the Red Dot Grocery Store robbery 

was admissible for the purpose of showing that petitioner had 

stolen the murder weapon. The evidence of the other armed 

robberies was admissible for the purpose of showing a common 

scheme or plan on the armed robbery count. Also, the evidence 

of the Red Dot Fruit Stand robbery was admitted for impeachment 

purposes only after the petitioner took the stand in his own 

defense. The court has read the trial court's instructions and 

cannot conclude that the instructions were overbroad or denied 

petitioner a fair trial. See Spencer VS. Texas, 385 U.S. 554, 
  

560-61 (1967).28 

Vili. CLAIM "E"™ -- EVIDENCE OF NON-STATUTORY AGGRAVATING 

CIRCUMSTANCES PRESENTED AT PENALTY STAGE OF PETITIONER'S TRIAL. 

Petitioner contends that the trial court erred by giving the 

jury complete, unlimited discretion to use any of the evidence 

presented at the trial during its deliberations regarding 

imposition of the death penalty. Petitioner's claim is without 

merit. The trial judge specifically instructed the jury that it 

could not impose the death penalty unless it found at least one 

statutory aggravating circumstance.2? He also instructed the 

jury that if it found one or more statutory aggravating circum- 

stances it could also consider any other mitigating or aggra- 

vating circumstances in determining whether or not the death 

penalty should be imposed. 

-107- 

  

 



   
AO 72A 
(Rev. 8/82) 

  

é 
® 

Georgia's capital sentencing procedure has been declared 

constitutional by the Supreme Court in Gregg vs. Georgia, 428 
  

U.S. 153 (1976). Just recently the Supreme Court examined an 

argument similar to the one petitioner makes here in Zant vs. 
  

Stephens, u.S. , 103 S.Ct. 2733 (1983). 1n that case the 
  

    

Court dealt with the argument that allowing the jury to consider 

any aggravating circumstances once a statutory aggravating 

circumstance had been found allowed the jury unbridled discretion 

in determining whether or not to impose the death penalty on a 

certain class of defendants. The Court stated: 

Our cases indicate, then, that statutory 

aggravating circumstances play a constitu- 

tionally necessary function at the stage of 

legislative definition: They circumscribe 

the class of persons eligible for the death 

penalty. But the Constitution does not 

require the jury to ignore other possible 

aggravating factors in the process of 

selecting, from among that class, those 

defendants who will actually be sentenced to 

death. What is important at the selection 

stage is an individualized determination on 

the basis of the character of the individual 

and the circumstances of the crime. Zant vs. 

Stephens, J.8. ; 103 S.Ct. at 2743-44 

(emphasis in original). 

  

  

  

The court specifically approved in Zant vs. Stephens considera- 
  

tion by the jury of non-statutory aggravating circumstances, 

provided that such evidence is not "constitutionally imper- 

missible or totally irrelevant to the sentencing process, such as 

for example the race, religion or political affiliation of the 

defendant." Id. at 2747. 

-108~- 

  

 



    AQ 72A 
(Rev. 8/82) 

a 

The sentencing jury in this case found two statutory 

agaravating circumstances: (1) That the offense of murder had 

been committed while McCleskey was engaged in the commission of 

another capital felony; and (2) that the offense of murder was 

committed against a peace officer while engaged in the per- 

formance of his official duties. "The trial judge could there- 

fore properly admit any 'additional evidence in extenuation, 

mitigation, and aggravation of punishment, including the record 

of any prior conviction,' ... provided that the evidence bore on 

‘defendant's prior record, or circumstances of his offense,'" 

Moore vs. Zant, F.2d , No. 82-8683, Slip Op. at (11th 
  

Cir. Dec. 20, 1983) (quoting Lockett vs. Ohio, 438 U.S. 586, 604 
  

n. 12 (1978)). For the reasons stated in Zant vs. Stephens, 
  

supra, and Moore Vs. Zant, supra, petitioner's claim is without 
  

merit. 

1X. CLAIM "F" -- WHETHER THE ADMISSION AT PETITIONER'S 

TRIAL OF EVIDENCE CONCERNING PRIOR CRIMES AND CONVICTIONS 

VIOLATED PETITIONER'S DUE PROCESS RIGHTS. 

Petitioner contends that the admission of evidence con- 

cerning two prior armed robberies for which he had not been 

indicted and the admission of details of other prior armed 

robberies for which he had been convicted violated his due 

process rights. This court has already concluded in Part VII, 

supra, that the evidence that petitioner participated in prior 

armed robberies was properly admitted to show petitioner's 

scheme, motive, intent or design and that the trial judge's     -109- 

  

 



    AQ 72A 
(Rev. 8/82) 

instructions properly limited the use of this evidence. See also 
  

McCleskey vs. State, 245 Ga. 108, 114 (1980). The evidence to 
  

    

which petitioner objects most strongly in Claim "F" concerns 

details of prior armed robberies for which petitioner had been 

convicted. When petitioner took the stand in his own defense, he 

admitted on direct examination that he had previously been 

convicted of armed robbery. He admitted to being guilty of those 

crimes, gave the dates of the convictions and the sentences he 

had received. On cross-examination the Assistant District 

Attorney asked petitioner a number of questions concerning the 

details of those robberies.30 petitioner contends that this 

questioning concerning the details of crimes to which petitioner 

had admitted guilt exceeded the bounds of what vas permissible 

for impeachment purposes, was irrelevant to the crimes for which 

he was being tried, and served to prejudice the jury against him. 

The Supreme Court of Georgia has already declared that this 

evidence was properly admitted under the Georgia Rules of 

Evidence. Petitioner asks this court now to declare the Georgia 

rule allowing the admissibility of this evidence to be violative 

of the due process clause of the Fourteenth Amendment. 

In Beck vs. Alabama, 447 U.S. 625 (1980), the Supreme Court 
  

stated: 

To insure that the death penalty is indeed 

imposed on the basis of "reason rather than 

caprice of emotion," we have invalidated 

procedural rules that tended to diminish the 

reliability of the sentencing determination. 

The same reasoning must apply to rules that 

diminish the reliability of the guilt 

determination. Id. at 638. 

-110~ 

  

 



    AO 72A 

(Rev. 8/82) 

    

1 

In Beck the Supreme Court struck down an Alabama statute which 

prohibited a trial judge from instructing the jury in a murder 

‘llcase that it could find the defendant guilty of a lesser-included 

offense. The Court ruled that this statute distorted the 

factfinding function of the jury. "In the final analysis the 

difficulty with the alabama statute is that it interjects 

irrelevant considerations into the factfinding process, diverting 

the jury's attention from the central issue of whether the State 

has satisfied its burden of proving beyond a reasonable doubt 

that the defendant is guilty of a capital crime." Id. at 642. 

In Green vs. Georgia, 442 U.S. 95 (1978) the Supreme Court 
  

set aside a death sentence on the grounds that the state trial 

court had excluded certain hearsay testimony at the sentencing 

portion of petitioner's trial. In that case the Court stated: 

Regardless of whether the proffered testimony 

comes within Georgia's hearsay rule, under 

the facts of this case its exclusion con- 

stituted a violation Of the Due Process 

Clause of the Fourteenth Amendment. Id. at 
96. 

It seems clear from these cases that a state procedural or 

evidentiary rule which might substantially diminish the re- 

liability of the factfinding function of the jury in a capital 

case would violate the due process clause of the Fourteenth 

Amendment. The question, then, is whether or not the admissi- 

bility of the details of other crimes can be said to have had the 

effect of diminishing "the reliability of the guilt determina- 

tion." Petitioner has cited several cases from this and other 

-111~- 

  

 



    AO 72A 

(Rev. 8/82) 

    

circuits which have held that the admission in a federal pro- 

secution of details of prior crimes to which the defendant had 

admitted guilt was unfairly prejudicial and constituted re- 

versible error. See, e.g., United States vs. Tamblin, 551 F.2¢8 
  

1001 (5th Cir. 1977); United States vs. Hardin, 525 F.24 84 (7th 
  

Cir. 1975) ("The rule that it is error to inquire about the 

details of prior criminal conduct is so well established that 

such error is cognizable despite the absence of any objection by 

defense counsel."”). The point petitioner has overlooked is that 

prosecutions in federal court are governed by the Federal Rules 

of Evidence. Each of the cases petitioner has cited rely to a 

greater or lesser extent upon an interpretation of those rules. 

While the Federal Rules of Evidence embody a modern concept of 

fairness and due process, it is not for this court to say that 

they are the only embodiment of due process or the standard 

against which state rules of evidence must be judged. While the 

evidence presented at petitioner's trial would probably not have 

been admitted in a federal prosecution, this court cannot 

conclude that it was so seriously prejudicial that it undermined 

the reliability of the jury's guilt determination. Petitioner's 

Claim "F" is therefore without merit. 

X. CLAIM "M" -- THE SUGGESTIVE LINEUP. 

In this claim petitioner contends that he was shown to at 

least three witnesses for the State in an illegal and highly 

suggestive display immediately prior to his trial without the 

knowledge, consent, or presence of defense counsel. The Supreme 

-1l2- 

  

 



    

  

AQ 72A 

(Rev. 8/82) 

Court of Georgia thoroughly addressed this concern and found 

against petitioner. McCleskey vs. State, 245 Ga. 108, 110-12 
  

(1980). In its discussion the Supreme Court of Georgia stated: 

The record shows that four witnesses im- 
mediately prior to the call of the case saw 
the appellant and four other persons sitting 
in the jury box guarded by deputy sheriffs. 
Each of these witnesses testified that they 
recognized the appellant as one of the 
robbers at the time they saw him seated in 
the jury box. There is no indication that 
the witnesses were asked to view the man 
seated in the jury box and see if they 
recognized anyone. No one pointed out the 
appellant as the defendant in the case, 
rather it is apparent from the witnesses’ 
testimony that each recognized the appellant 
from having viewed him at the scene of the 
respective robberies. Therefore, no illegal 
post-indictment lineup occurred. ... 

Appellant argues further that the four 
witnesses viewing him in the jury box as he 
awaited trial along with police identi- 
fication procedures impermissibly tainted the 
witnesses' in-court identification of the 
appellant. 

The threshold inquiry is whether the identi- 
fication procedure was impermissibly sug- 
gestive. Only if it was, need the court 
consider the second question: Whether there 
was a substantial likelihood of irreparable 
misidentification. ... 

The chance viewing of the appellant prior to 
trial as he sat with others was no more 
suggestive than seeing him in the hall as he 
and other defendants are being brought in for 
trial, or seeing him seated at the defense 
table as each witness comes in to testify. We 
conclude that the chance viewing of the 
appellant immediately prior to trial by four 
of the State's witnesses was not impermis- 
sibly suggestive. Also we find the identi- 
fications were not tainted by police identi- 
fication procedures. 245 Ga. at 110. 

-113~       
 



    AQ 72A 
(Rev. 8/82) 

    

Although the court found that the display was not impermissibly 

suggestive, the court went on to examine whether the in-court 

identifications were reliable and found that they were. This 

court finds no basis in the record or in the arguments presented 

by petitioner for concluding that the Supreme Court of Georgia 

was in error. The court therefore finds that petitioner's Claim 

"M" is without merit. 

XI. CLAIM "N" -- WHETHER PETITIONER'S STATEMENT INTRODUCED 

AT TRIAL WAS FREELY AND VOLUNTARILY GIVEN AFTER A KNOWING WAIVER 

OF PETITIONER'S RIGHTS. 

In this claim petitioner contends that the admission at 

trial of his statements given to the police was error because the 

statements were not freely and voluntarily given after a knowing 

waiver of rights. Before the statement was revealed to the jury 

the trial court held, outside of the presence of the jury, a 

  

Jackson vs. Denno hearing. The testimony at this hearing 

revealed that at the time he was arrested petitioner denied any 

knowledge of the Dixie Furniture Store robbery. He was detained 

overnight in the Marietta Jail. The next morning when two 

Atlanta police officers arrived to transfer him to Atlanta they 

advised him of his full Miranda rights. He again denied any 

knowledge of the Dixie Furniture Store robbery. There was some 

dispute about what was said during the half-hour trip back to 

Atlanta. Petitioner claimed that the officers told him that his 

co-defendants had implicated him and that if he did not start 

-114~- 

  

 



    

  

AO 72A 
(Rev. 8/82) 

    
  

® ph 

talking they would throw him out of the car. The officers, of 

course, denied making any such threat but did admit that they 

| told petitioner that the other defendants were "trying to stick 

lit on" him. The officers testified that during the trip back, 

after being fully advised of his Miranda rights and not being 
  

subjected to any coercion or threats, petitioner admitted his 

full participation in the robbery but denied that he shot Officer 

Schlatt. 

Immediately upon arrival at the Atlanta Police Department 

petitioner was taken to Detective Jowers. At that time peti- 

tioner told Jowers that he was ready to talk. Detective Jowers 

had petitioner execute a written waiver of counsel. This waiver 

included full Miranda warnings and a statement that no threats or 

promises had been made to induce petitioner's signature. Peti- 

tioner's statement was then taken over the next several hours. 

During the first part of this session petitioner simply narrated 

a statement to a secretary who typed it. The secretary testified 

that petitioner was dissatisfied with the first draft of the 

statement and started another one. The first draft was thrown 

away. 

After petitioner finished his narration Detective Jowers 

proceeded to ask him a number of questions about the crime. This 

questioning went on for some time off the record. Finally, a 

formal question and answer session was held on the record. These 

questions and answers were typed up by the secretary and signed 

by petitioner. 

-115~  



    AO 72A 
(Rev. 8/82) 

    

It is undisputed that the atmosphere in the room where the 

statement was being taken was unusually relaxed and congenial, 

considering the gravity of the crime of which petitioner was 

accused. The secretary who typed it testified that she had never 

seen the police officers treat a murder suspect with such 

warmth.31 

After hearing all of the testimony and considering peti- 

tioner's argument that the police had engaged in a "Mutt and 

Jeff" routine, 32 the trial court ruled that the statement had 

been freely and voluntarily given after a knowing waiver of 

petitioner's Miranda rights. The jury was then returned and the 

statement and testimony were introduced. 

After having read the transcript of the proceedings this 

court cannot conclude that the trial judge erred in his finding 

that the statement was freely and voluntarily given. There was 

no error, therefore, in admitting the statement into evidence. 

Petitioner's Claim "N" is therefore without merit. 

XII. CLAIM "O" -- EXCLUSION OF DEATH-SCRUPLED JURORS. 

Petitioner claims that the exclusion of two prospective 

jurors because of their opposition to the death penalty violated 

his Sixth Amendment rights under Witherspoon vs. Illinois, 391 
  

U.S. 510 (1968). Both jurors indicated that they would not under 

any circumstances consider the death penalty.33 

In Witherspoon vs. Illinois, supra, the Supreme Court held 
  

that a person could not be sentenced to death by a Jury from 

which persons who had moral reservations about the death penalty 

-116~ 

  

 



    

  

AO 72A $ » 
(Rev. 8/82) : NN 

had been excluded, unless those persons had indicated that their 

opposition to the death penalty would prevent them from ful- 

filling their oaths as jurors to apply the law: 

[Nlothing we say today bears upon the power 
of a State to execute a defendant sentenced 
to death by a jury from which the only 
veniremen who were in fact excluded for cause 
were those who made unmistakably clear (1) 
that they would automatically vote against 
the imposition of capital punishment without 
regard to any evidence that might be devel- 
oped at the trial of the case before them, or 
(2) that their attitude toward the death 

| penalty would prevent them from making an 
impartial decision as to the defendant's 
guilt. 391 U.S. at 522-23 n. 21 (emphasis in 
original). 

  

Since the two prospective jurors in this case indicated that they 

would not under any circumstances vote for the death penalty, the 

trial court committed no error in excluding them. See Boulden 
  

vs. Holman, 394 U.S. 478 (1969). 
  

Petitioner's argument that the exclusion of death-scrupled 

jurors violated his right to be tried by a jury drawn from a 

representative cross section of his community has already been 

considered and rejected in this circuit. Smith vs. Balkcom, 660 
  

r.28 573, 582-83 (5th Cir. Unit B 1981), cert, denied, J.5. 
  

; 103 S.Ct. 181 (1982)r Spinkellink vs, Wainwright, 578 F.2d 
  

582, 593-99 (5th Cir. 1978), cert, denied, 440 U.S. 976, reh'g 
  

denied, 441 U.S. 976 (1979). The Court in Spinkellink also 
  

rejected petitioner's claims that the exclusion of death-scrupled 

jurors resulted in a prosecution-prone jury or a jury that was 

incapable of maintaining "a link between contemporary community   -117-     
 



    
AQ 72A 
(Rev. 8/82) 

values and the penal system." 578 F.2d at 593-99. See gen- 
  

erally, Woodson vs. North Carolina, 428 U.S. 280, 295 (1976). 
  

Because the two prospective jurors indicated they would not 

consider the death penalty under any circumstances, they were 

properly excluded, and petitioner's Claim "O" is without merit. 

X11. CLAIM "“I™ -- PETITIONER'S CLAIM THAT THE DEATH 

PENALTY FAILS TO SERVE RATIONAL INTERESTS. 

In his petition for the writ petitioner raised a claim that 

the death penalty fails to serve rational interests. Neither 

petitioner nor the State has briefed this issue, but the premise 

appears to be that the supposed deterrent value of the death 

penalty cannot be demonstrated; that executions set socially- 

sanctioned examples of violence; that public sentiment for 

retribution is not so strong as to justify use of the death 

penalty; and that no penal purpose is served by execution which 

cannot be more effectively served by life imprisonment. Such 

arguments are more properly addressed to the political bodies. 

See Furman vs. Georgia, 408 U.S. 238, 410 (1971) (Blackmun, J., 
  

    
dissenting). Georgia's death penalty was declared constitutional 

in Gregg vs. Georgia, 428 U.S. 153,183 (1976). Petitioner's 
  

Claim "I" is therefore without merit. 

XIV. CLAIM "Q" -- PETITIONER'S BRADY CLAIM. 

Petitioner contends that prior to trial defense counsel 

filed a Brady motion seeking, inter alia, statements he was 
  

alleged to have been made and that the State failed to produce 

the statement that was alleged to have been made to Offie Evans 

-118~ 

  

 



    

  

AO 72A » 
(Rev. 8/82) 

| while in the Fulton County Jail. Petitioner contends that this 

failure to produce the statement prior to trial entitles him to a 

new trial. 

Brady vs. Maryland, 373 U.S. 83 (1963) requires the prose- 
  

cution to produce any evidence in its possession which would tend 

to be favorable or exculpatory to the defendant. However, Brady 

does not establish any right to pretrial discovery in a criminal 

case, but instead seeks only to insure the fairness of a de- 

fendant's trial and the reliability of the jury's determinations. 

United States vs. Beasley, 576 F.2d 626 (5th Cir. 1978), cert. 
  

denied, 440 U.S. 947 (1979). Thus, a defendant who seeks a new 

trial under Brady must meet three requirements to establish a 

successful claim: "(l) The prosecutor's suppression of the 

evidence, (2) the favorable character of the suppressed evidence 

for the defense, and (3) the materiality of the suppressed 

evidence." Martinez vs. Wainwright, 621 F.2d 184 (5th Cir. 
  

1980); United States vs. Preston, 608 F.2d 626, 637 {5¢ch Clr. 
  

1979), cert. denied, 446 U.S. 940 (1980); United States vs. Delk, 
  

  

586 F.2d 513, 518: 15¢h Cir. 1978). 

As a preliminary matter the court notes that the testimony 

of Offie Evans was hardly favorable to petitioner. Most of the 

testimony was highly damaging to petitioner. The only part of 

the testimony which could even remotely be regarded as favorable 

was Evans' testimony that McCleskey had told him that his face 

had been made up on the morning of the robbery by Mary Jenkins. 

This testimony contradicted Mary Jenkins' earlier testimony and 

-119-       
 



    AQ 72A 
(Rev. 8/82) 

  

    

thus had impeachment value against one of the State's witnesses. 

However, the very testimony that would have been impeached was 

| testimony favorable to petitioner. Jenkins' testimony that 

| petitioner had clear skin and no scar on the day of the crime 

contradicted the testimony of the store employees that the person 

in the front of the store had a rough, pimply complexion and a 

scar. Thus, Jenkins' testimony regarding petitioner's complexion 

on the morning of the crime helped create doubt in his favor. 

Impeachment of that testimony would have hurt rather than helped 

petitioner. 

As a secondary matter, the court cannot see that the 

evidence in question was suppressed by the prosecution. While it 

was not produced prior to trial, it was produced during the 

trial. Thus, the jury was able to consider it in its delibera- 

tions. Petitioner has produced no cases to support the proposi- 

tion that the failure of the prosecution to produce evidence 

prior to trial entitles him to a new trial where that evidence 

was produced during the trial. Since the evidence was before the 

jury, the court cannot find that the failure to disclose it prior 

to trial deprived petitioner of due process. Petitioner's Claim 

"Q" is clearly without merit. 

XV. CLAIM "R" -- SUFFICIENCY OF THE EVIDENCE. 

By this claim petitioner contends that the evidence in- 

troduced at trial was insufficient to prove beyond a reasonable 

doubt that he was the triggerman who shot Officer Schlatt and 

that the shooting constituted malice murder. Petitioner does not 

-120~- 

  

 



    

  

AO 72A % 
(Rev. 8/82) 4 

argue that the evidence was insufficient to support his con- 

viction for armed robbery. 

As part of its review in this case, the Supreme Court found 

that "the evidence factually substantiates and supports the 

finding of the aggravating circumstances, the finding of guilt, 

and the sentence of death by a rational trier of fact beyond a 

reasonable doubt." McCleskey vs. State, 245 Ga. 108, 115 (1980). 
  

In reviewing the sufficiency of the evidence, this court must 

view the evidence in a light most favorable to the State and 

should sustain the jury's verdict. unless it finds that no 

rational trier of fact could find the defendant guilty beyond a 

reasonable doubt. Jackson vs. Virginia, 443 U.S. 307 (1979). 
  

Much of the evidence against petitioner was circumstantial. 

Witnesses placed him in the front of the store carrying a 

nickel-plated revolver matching the description of a .38 caliber 

Rossi which petitioner had stolen in an earlier armed robbery. 

The State's ballistics expert testified that the bullet which 

killed Officer Schlatt was probably fired from a .38 caliber 

Rossi. At least one witness testified that the shots were fired 

from a point closer to the front of the store than she was lying. 

While the circumstantial evidence alone may not have been 

sufficient to support a verdict of malice murder, the State also 

introduced highly damaging testimony by one of the co-defendants, 

Ben Wright, and a fellow inmate at the Fulton County Jail, Offie 

Evans. Both of these witnesses testified that petitioner had 

admitted shooting Officer Schlatt. Evans testified that 

-121~       
 



    AO 72A 

(Rev. 8/82) 

    

McCleskey told him that he would have shot his way out of the 

store even if there had been a dozen police officers. It is not 

this court's function to weigh the credibility of this testimony. 

That was for the jury to do. Viewing all the evidence in a light 

most favorable to the State, this court cannot find that no 

rational trier of fact could find petitioner guilty beyond a 

reasonable doubt of malice murder. Jackson vs. Virginia, supra. 
  

Petitioner's Claim "R" is therefore without merit. 

XVI. CLAIM "P" -- INEFFECTIVE ASSISTANCE OF COUNSEL. 

By this claim petitioner contends that he was denied 

effective assistance of counsel in contravention of the Sixth and 

Fourteenth Amendments. He alleges that his counsel was in- 

effective for the following reasons: (1) That his attorney 

failed to investigate adequately the State's evidence and 

possible defenses prior to trial; (2) that during the trial 

counsel failed to raise certain objections or make certain 

motions; (3) that prior to the sentencing phase of petitioner's 

trial counsel failed to undertake an independent investigation 

into possible mitigating evidence and thus was unable to offer 

any mitigating evidence to the jury; and (4) that after the 

trial, counsel failed to review and correct the judge's sentence 

report. 

It is well established in this circuit that a criminal 

defendant is entitled to effective assistance of counsel -- that 

is, "counsel reasonably likely to render and rendering reasonably 

effective assistance." See, e.g., Washington vs. Strickland, 693 
  

122m 

  

 



    AQ 72A 
(Rev. 8/82) 

    

F.2d 1243, 1250 (5th Cir. Unit B, 1982) (en banc), cert. granted, 
  

U.S. , 103 S.Ct. 2451 (1983); Gaines vs. Hopper, 575 F.2d 
  

1147, 1149 (5th Cir. 1978); Herring vs. Estelle, 491 F.24& 125, 
  

1127 (5th Cir. 1974); MacKenna vs. Ellis, 280 F.2d 592, 599 (5th 
  

Cir. 1960), cert. denied, 368 U.S. 877 (1961). However, the 
  

Constitution does not guarantee errorless counsel or counsel 

judged ineffective only by hindsight. Herring vs. Estelle, 
  

supra. In order to be entitled to habeas corpus relief on a 

claim of ineffective assistance of counsel, petitioner must 

establish by a preponderance of the evidence: (1) That based 

upon the totality of circumstances in the entire record his 

counsel was not "reasonably likely to render" and in fact did not 

render "reasonably effective assistance," and (2) that "in- 

effectiveness of counsel resulted in actual and substantial 

disadvantage to the course of his defense." Washington vs. 
  

Strickland, 693 F.2d 1243, 1262 (5th Cir. Unit B 1982) (en banc). 
  

Even if petitioner meets this burden, habeas corpus relief may 

still be denied if the State can prove that "in the context of 

all the evidence ... it remains certain beyond a reasonable doubt 

that the outcome of the proceedings would not have been altered 

but for the ineffectiveness of counsel." Id. With these 

standards in mind the court now addresses petitioner's particular 

contentions. 

123 

  

 



    AO 72A 

(Rev. 8/82) 

    

é hp # 

A. Pretrial Investigation. 
  

It is beyond dispute that effective assistance of counsel 

requires some degree of pretrial investigation. "Informed 

evaluation of potential defenses to criminal charges and mean- 

ingful discussion with one's client of the realities of his case 

are cornerstones of effective assistance of counsel." Gaines vs. 
  

Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978). In Washington 
  

vs. Strickland, 693 F.2d 1243 (5th Cir. Unit B 1982) (en banc), 
  

the court discussed the extent of pretrial investigation required 

to constitute effective assistance of counsel. In that case the 

court stated: 

The amount of pretrial investigation that is 

reasonable defies precise measurement. It 

will necessarily depend upon a variety of 

factors including the number of issues in the 

case, relative complexity of those issues, 

the strength of the government's case, and 

the overall strategy of trial counsel. ... 

In making that determination, courts should 

not judge the reasonableness of counsel's 

efforts from the omniscient perspective of 

hindsight, but rather "from the perspective 

of counsel, taking into account all of the 

circumstance of the case, but only as those 

circumstances were known to him at the time 

in question." Id. at 1251 (quoting Washing- 

ton vs. Watkins, 655 F.2d at 1356). 
  

  

The court went on to analyze a variety of cases falling into five 

general categories.34 The category of cases identified by the 

Washington court which most closely resembles the present case 
  

was the one in which "counsel fails to conduct a substantial 

investigation into one plausible line of defense because of his 

-124~ 

  

 



    

  

AO 72A 
(Rev. 8/82) A » 

reasonable strategic choice to rely upon another plausible line 

of defense at trial." In analyzing these cases the court stated: 

As observed above, when effective counsel 

would discern several plausible lines of 

defense he should ideally perform a sub- 

stantial investigation into each line before 

making a strategic decision as to which lines 

he will employ at trial. In this ideal, as 

expressed in the American Bar Association's 

Standards, is an aspiration to which all 

defense counsel should strive. It does not, 

however, represent the constitutional minimum 

for reasonably effective assistance of 

counsel. ... Realistically, given the finite 

resources of time and money that are avail- 

able to defense counsel, fewer than all 

plausible lines of defense will be the 

subject of substantial investigation. Often, 

counsel will make a choice of trial strategy 

relatively early in the representation 

process after conferring with his client, 

reviewing the State's evidence, and bringing 

to bear his experience and professional 

judgment. Thereafter, he will constitute his 

finite resources on investigating those lines 

of defense upon which he has chosen to rely. 

The choice by counsel to rely upon certain 

lines of defense to the exclusion of others 

before investigating all such lines is a 

strategic choice, .... 

A strategy chosen without the benefit of a 

reasonably substantial investigation into all 

plausible lines of defense is generally based 
upon counsel's professional assumptions 
regarding the prospects for success offered 
by the various lines. The cases generally 
conform to a workable and sensible rule: When 
counsel's assumptions are reasonable, given 
the totality of the circumstances and when 
counsel's strategy represents a reasonable 
choice based upon those assumptions, counsel 
need not investigate lines of defense that he 
has chosen not to employ at trial. 693 F.2d 

at 1254-55, 

-125~       
 



    AQ 72A 
(Rev. 8/82) 

    

In the present case petitioner's trial counsel was faced 

with two plausible lines of defense -- an alibi defense or a 

defense that petitioner participated in the robbery but was not 

the triggerman who killed Officer Schlatt. Pursuing the second 

defense would almost have guaranteed a conviction for armed 

robbery and felony murder, for which petitioner could still have 

received the death penalty or at least life imprisonment. 33 On 

the other hand, a successful alibi defense offered the prospect 

of no punishment at all. Trial counsel testified at the state 

habeas corpus hearing that McCleskey had repeatedly insisted that 

he was not present at the crime. Trial counsel also testified 

that after the preliminary hearing he and McCleskey reasonably 

believed that an alibi defense could be successful. A primary 

reason for this belief was that Mamie Thomas, one of the Dixie 

Furniture Mart employees who was up front when the robber came in 

and had an opportunity to observe him, was unable to identify 

McCleskey at the preliminary hearing, despite the fact that she 

was standing only a few feet from him. Given the contradictory 

descriptions given by the witnesses at the store, the inability 

of Mamie Thomas to identify petitioner, and petitioner's repeated 

statements that he was not present at the scene, and the possible 

outcome of pursuing the only other defense available, the court 

cannot say that trial counsel's decision to pursue the alibi 

defense was unreasonable or constituted ineffective assistance of 

counsel. 

-126~ 

  

 



    AQ 72A 
(Rev. 8/82) 

  

® » 

Having made a reasonable strategic choice to pursue an alibi 

defense, trial counsel could reasonably have decided not to 

interview all of the store employees. None of the statements 

produced by petitioner indicates that these employees would have 

contradicted the State's theory of the case. At best, they might 

have cumulatively created a reasonable doubt as to whether 

petitioner was the triggerman. This, however, was a defense 

counsel and petitioner had chosen not to pursue. Counsel had 

read their statements and concluded that none of these employees 

could identify McCleskey as the gunman who entered the front of 

the store, He also had the sworn testimony of at least one 

witness that McCleskey was definitely not the person who entered 

the front of the store. Under such circumstances the failure to 

interview the store employees was reasonable. See Washington vs. 
  

Watkins, 655 F.2d 1346 (5th Cir. Unit A 1981), cert. denied, 456 
  

U.S. 949 (1982) (failure to interview in person the only eye 

witness to an armed robbery and murder not ineffective assistance 

of counsel where client was asserting an alibi defense and 

telephone interview had established that witness could not 

identify or describe the gunman) .36 

Slightly more troubling than the failure to interview the 

witnesses at the store was counsel's failure to interview the 

sheriff's deputies and Offie Evans prior to trial. Evans' 

testimony was certainly very damaging to petitioner, and a 

pretrial investigation as to what his testimony would be may have 

uncovered the details of his escape from a halfway house and the     -127- 

  

 



    AO 72A 
(Rev. 8/82) 

    

pending federal charges against him, his "understanding" with an 

Atlanta police detective, his history of drug use, and his 

imaginative story that he had gone to Florida and participated in 

an undercover drug investigation during his escape. Discovery of 

such evidence would have had substantial impeachment value. 

However, this court cannot find on the facts before it that 

counsel acted unreasonably in failing to interview Evans prior to 

trial. Although he recognized that at least one of the names in 

the prosecution's witness list was a Fulton County Sheriff's 

Deputy and suspected that a jailhouse confession might be 

forthcoming, counsel testified that McCleskey told him that he 

had made absolutely no incriminating statements to anyone in the 

Fulton County Jail. There has been no ileaation that petitioner 

was incompetent or insane at any time during this proceeding. It 

would be anomalous, then, for this court to grant petitioner 

habeas corpus relief on the grounds that petitioner's counsel was 

ineffective because he did not disbelieve petitioner and under- 

take an independent investigation, 

Finally, petitioner contends that his counsel was inef- 

fective because he failed to interview the State's ballistics 

expert, Kelly Fite. However, a similar claim was rejected on 

similar facts in Washington vs. Watkins, 655 F.2d at 1358. 
  

Petitioner's counsel had read the expert's report and was 

prepared adequately to cross-examine the expert at trial. The 

court does not believe, therefore, that the failure to interview 

-128~ 

  

 



    

  

AO 72A 
(Rev. 8/82) 

the witness in person prior to trial constituted ineffective 

assistance of counsel. 

B. Performance During the Trial: Guilt/Innocence Phase. 
  

Petitioner also contends that counsel's conduct of the trial 

was deficient in several respects. First, petitioner contends 

that the failure to move for a continuance or a mistrial when he 

learned of the suggestive line-up procedure on the morning of the 

trial constituted ineffective assistance. However, the court has 

already concluded in Part X, supra, that there was nothing 

unconstitutional about the chance viewing of the defendants prior 

to trial. The viewing therefore would not have been grounds for 

a mistrial or a continuance. Failure to make a motion unwar- 

ranted in law is not ineffective assistance of counsel. 

Petitioner also contends that his counsel failed to object 

to admission of evidence regarding prior convictions and sen- 

tences for armed robbery. Petitioner makes the somewhat tech- 

nical argument that because these convictions had been set aside 

by the granting of a motion for a new trial that they were 

inadmissible. Petitioner further contends that counsel did not 

object to this evidence because he had failed to investigate the 

circumstances of these convictions prior to trial.37 Assuming for 

the moment that the failure to investigate these convictions 

constituted ineffective assistance of counsel, the court is 

unconvinced that petitioner can show actual and substantial 

prejudice resulted from the ineffectiveness. See Washington vs. 
  

Strickland, 693 F.2d 1243, 1262 (5th Cir, Unit B 1982) (en banc) 
        
  

-129-  



    AQ 72A 
(Rev. 8/82) 

cert. granted, 103 S.Ct. 2451 (1983). First, petitioner does not 
  

      

ccntend that he was not guilty of those crimes. In fact, after 

being granted a new trial he pleaded guilty to them and received 

an l8-year sentence. The court has already held that under 

Georgia law those crimes were admissible to show that petitioner 

engaged in a pattern or practice of armed robberies. The court 

cannot say that counsel's failure to object to the introduction 

of this evidence at the guilt stage caused petitioner actual and 

substantial prejudice. Also, while the jury did learn that 

petitioner had received life sentences which had subsequently 

been set aside and this fact may have prejudiced them at the 

penalty stage of petitioner's trial, 38 the court is unprepared to 

say that in the context of all of the evidence, the failure of 

counsel to object to the introduction of this evidence warrants 

petitioner a new trial. However, given the court's holding in 

Part III, supra, this point is essentially moot. 

Finally, petitioner contends that trial counsel was in- 

effective because he failed to object to the trial court's 

"overly broad instructions to the jury (1) with regard to 

presumptions of intent and (2) as to the use of 'other acts’ 

evidence for proof of intent, and (3) as aggravating circum- 

stances at the sentencing phase." Petitioner's September 20, 

1983 Memorandum of Law in Support of Issuance of the Writ at 64. 

This court has already found that the trial court's instructions 

were not erroneous or overbroad. See Parts IV, VII and VIII, 

=130~- 

  

 



    AQ 72A 
(Rev. 8/82) 

      

supra. Failure to object to the instructions was not, therefore, 

ineffective assistance of counsel. 

C. Ineffective Assistance at Trial -- Sentencing Phase. 
  

Petitioner has contended that trial counsel was ineffective 

because he failed to undertake an independent investigation to 

discover and produce mitigating evidence and witnesses to testify 

on behalf of petitioner at the sentencing phase of his trial. 

Trial counsel testified that he asked petitioner for names of 

persons who would be willing to testify for him and that peti- 

tioner was unable to produce a single name. Counsel also 

testified that he contacted petitioner's sister and that she also 

was unable to produce any names.39 A review of trial counsel's 

testimony at the state habeas hearing convinces this court that 

counsel made a reasonable effort to uncover mitigating evidence 

but could find none. Petitioner's sister declined to testify on 

her brother's behalf and told counsel that petitioner's mother 

was unable to testify because of illness. McCleskey vs. Zant, 
  

H.C. No. 4909, Slip Op. at 19 (Sup. Ct. Of Butts County, April 8, 

1981). The record simply does not support a finding of actual 

and substantial prejudice to petitioner due to any ineffective 

assistance by petitioner's counsel at the sentencing phase of the 

trial. 

D. Ineffective Assistance -- Post-Trial. 
  

Petitioner contends that trial counsel was also ineffective 

in failing to correct inaccuracies and omissions in the trial 

judge's post-trial sentencing report. 40 This report is used by 

-131~- 

  

 



    AO 72A 
(Rev. 8/82) % ® 

the Georgia Supreme Court as part of its review of whether the 

sentence imposed was arbitrary, excessive, or disproportionate.4l 

While it was in part because the Georgia capital sentencing 

procedure provided such a review that the Supreme Court upheld 

the Georgia death penalty in Gregg vs. Georgia, 428 U.S. 153 
  

(1976), the Supreme Court has recently declared that such 

proportionality reviews are not required by the Constitution. 

Pulley vs. Harris, u.s. + No. 82-1095, Slip Op. at 6-15 
  

    

| (Jan. 23, 1984). Since proportionality reviews are not required 

by the Constitution, it is difficult for this court to see actual 

and substantial prejudice caused to petitioner by counsel's 

failure to review and correct mistakes in the trial judge's 

report, even if such failure would constitute ineffective 

assistance of counsel. 

Since the court has concluded that petitioner has been 

unable to show actual and substantial prejudice caused by any 

ineffective assistance of counsel, petitioner's Claim "P" is 

without merit. 

XVII. CONCLUSION 

For the reasons set forth in Part III, supra, it is ORDERED, 

ADJUDGED, and DECREED that petitioner's conviction for malice 

murder be set aside and that petitioner within one hundred twenty 

(120) days after this judgment becomes final as a result of the 

-132- 

  

 



    

  

AO 72A | : 
(Rev. 8/82) 

| failure of respondent to lodge an appeal or as the result of the 

issuance of a mandate affirming this decision, whichever is 

later, be reindicted and tried, failing which this writ of habeas 

corpus without further order shall be made absolute. 

Yi IT IS SO ORDERED this day of February, 1984. 

; PL wn 
- J./OWEN FORRESTER 

UNITED STATES DISTRICT JUDGE 

  

  -133~     
 



  

  

  

I 

TABLE 1 

RACE OF THE VICTIM 
| 

DB61 pB70 DB73 DB74 DB77 DB8O pB78 DB83 DB83 DB83 DB7IA DB83 DB80 DB85 DBlO02 | 

Unadjusted 1 1 1 2 9 10 13 14 44 83 136 230 230 250 

Incremental Increase in 

Death Sentencing Rate 10 pts. 17 pt: .09 e317 .09 07 +07 .06 .06 207 .10 .07 .06 .06 .04 

"p" Value 
.0001 .0001 .001 .0001 .001 .0014 001 001 .0002 .001 .0) 0) «021.  .04 

* 
RACE OF THE DEFENDANT 

DB61 pg7o p73 0EV4 DEFY DRGD DN78 DES) bE) DES) puis PEE) ORO [RRs mALM 

Incremental Increase in 

peath Sentencing Rate -0.3 «10 .05 .10 +05 .04 .04 .05 .06 .06 .07 .06 .06 .06 .04 

npY value 
:000) .031 .0) .03 .10 +09 .01 s001: .0004 0] 01 .01 .02 .05   

 



    AO 72A 
(Rev. 8/82) 

FOOTNOTES 
  

1/ A separate one-day hearing was had several months after the 

original hearing. The transcript of those proceedings appears in 

Volume X of the transcript, and that testimony will hereafter be 

referred to with the prefix "X." 

2/ The teaching of this chart has a universal lesson for 

courts. That lesson is that where there is a multitude of 

factors influencing the decision-maker, a court cannot rely upon 

tests of statistical significance to validate the data unless it 

is first shown that the statistical model is sufficiently 

predictive. 

3/ Woodworth commented on this opinion of Katz's. He testified 

that it was his observation that after about ten variables were 

added to the model, the precipitous drop in levels of statistical 

significance leveled out, and, therefore, he was of the opinion 

that it would require the addition of an enormous number of 

variables to make the coefficient insignificant. He had no 

opinion as to whether the addition of a number of variables would 

inevitably remove the effect. In fact, however, the trend line 

on GW 6 for statistical significance does not remain flat, even 

in Woodworth's studies. From the 10 to 20-variable models to the 

230-variable models, the "P"™ value declines from something just 

under .00003 to something just over .005. 

4/ Katz utilized Baldus's characterization of factors as to 

whether they were aggravating or mitigating. 

5/ As an aside, the court should think that this table should 

put to rest the sort of stereotypical prejudice against Southern 

jurisdictions typified in the petitioner's brief by reliance on 

evidence in the Congressional Record in the 1870's concerning the 

existence of a disregard by Southern officials for the value of 

black life. 

6/ The regression coefficient of an independent variable would 

be the same regardless of whether it was a rare event or a 

frequent event. X 33. 

7/ Stepwise regression is a process carried out by a computer 

which selects the background variables sequentially based on 

which provides the best fit. It makes no judgment as to whether 

or not the variables it selects might in reality have anything to 

do with the decision. Any model produced by stepwise regression     
  

 



    AO 72A 
(Rev. 8/82) 

    

would not meet the legal statistical conventions discussed 

earlier in that the model is not validated by a person who is by 

experience or learning acquainted with how the process actually 

works. 

8/ McCleskey was offered a life sentence in return for a guilty 

plea. (See State Habeas Transcript, Testimony of Turner). 

9/ He testified, however, that the data was interpretable 

because he convinced himself that the violations of the assump- 

tion were not in themselves responsible for the findings of 

significant racial effects. R 1223-24, 1228. 

10/ one thing of interest came out in DB 60 concerning the 

evaluation of the coders. In their judgment 92% of all the 

police reports that they studied indicated clear guilt, This is 

interesting in view of the fact that only 69% of all defendants 

tried for murder were convicted. This suggests either that the 

coders did not have enough experience to make this evaluation, or 

the more likely explanation is that the Parole Board summaries 

were obtained from official channels and only had the police 

version and had little if any gloss on the weaknesses of the case 

from the defendant's perspective. 

11/ part of the moral force behind petitioner's contentions is 

that a civilized society should not tolerate a penalty system 

which does not avenge the murder of black people and white people 

alike. In this connection it is interesting to note that in the 

highest two categories of aggravation there were only ten cases 

where the murderer of a black victim did not receive the death 

penalty while in eleven cases the death penalty under similar 

circumstances was imposed. This is not by any means a sophis- 

ticated statistical analysis, but even.in its simplicity it 

paints no picture of a systematic deprecation of the value of 

black life. 

12/ This model has only one strength of the evidence factor 

(DCONFESS) and that occurs only in 26 percent of the cases. Many 

other aggravating and mitigating circumstances which the court 

has come to understand are significant in explaining the opera- 

tion of the system in Georgia are omitted. Among these are that 

the homicide arose from a fight. or that it was committed by 

lovers in a rage. A variable for family, lover, liquor, barroom 

quarrel is included, and it might be argued that this is a proxy. 

However, the court notes from DB 60 that the included variable 

occurs in only 1,246 cases whereas the excluded variable 

(MADLOVER) occurs in 1,601 cases. Therefore, the universe of 

cases is not coextensive. Others which are excluded are vari- 

ables showing that the victim was forced to disrobe; that the 

victim was found without clothing; that the victim was mutilated; 

ii 

  

 



    AQ 72A 
(Rev. 8/82) 

    

® 4 

that the defendant killed in a rage; that the killing was 
unnecessary to carry out the contemporaneous felony; that the 
defendant was provoked; that the defendant lacked the intent to 
kill; that the defendant left the scene of the crime; that the 
defendant resisted arrest; and that the victim verbally provoked 
the defendant. 

13/ Katz testified that in most cases he randomly selected 
variables and in the case of the 3l-variable model selected those 
variables arbitrarily which would most likely predict the outcome 
in McCleskey's case. 

1l4/ Based on the court's knowledge of the State of Georgia, it 
appears that Baldus included many distinctly rural jurisdictions 
in the category of urban jurisdictions. 

15/ as part of its findings on the Fulton County data, the court 
finds that there are no guidelines in the Office of the District 
Attorney of the Atlanta Judicial Circuit to guide the exercise of 
discretion in determining whether or not to seek a penalty trial. 
Further, it was established that there was only one black juror 
on McCleskey's jury. R 1316. 

16/ on direct examination the prosecutor asked: 

Q: Mr. Evans have I promised you anything for testi- 
fying today? 
Rs No, sir, you ain't. 
Q: You do have an escape charge still pending, is that 
correct? 
RB: Yes, sir. l've got one, but really it ain't no 
escape, what the peoples out there tell me, because 
something went wrong out there so I just went home. I 
stayed at home and when I called the man and told him 
that I would be a little late coming in, he placed me 
on escape charge and told me there wasn't no use of me 
coming back, and I just stayed on at home and he come 
and picked me up. 
Q: Are you hoping that perhaps you won't be prosecuted 
for that escape? 
A: Yeah, I hope I don't, but I don't -- what they tell 
me, they ain't going to charge me with escape no way. 
Q: Have you asked me to try to fix it so you wouldn't 
get charged with escape? 
A: No, sir. 
Q: Have I told you I would try to fix it for you? 
A: No, sir, 

Trial Transcript at 868. 

ili 

  

 



    

  

AQ 72A 

(Rev. 8/82) 

On cross-examination by petitioner's trial counsel Mr. Evans 
testified: 

Q: Okay. Now, were you attempting to get your escape 

charges altered or at least worked out, were you 
expecting your testimony to be helpful in that? 
A: I wasn't worrying about the escape charge. I 
wouldn't have needed this for that charge, there wasn't 
no escape charge. 

Q: Those charges are still pending against you, aren't 
they? . 
A: Yeah, the charge is pending against me, but I ain't 
been before no Grand Jury or nothing like that, not 

vet. 

Trial Transcript at 882. 

17/ At the habeas hearing the following transpired: 

The Court: Mr. Evans, let me ask you a question. At 
the time that you testified in Mr. McCleskey's trial, 
had you been promised anything in exchange for your 
testimony? : 
The Witness: No, I wasn't. I wasn't promised nothing 
about -- I wasn't promised nothing by the D.A. But the 
Detective told me that he would -- he said he was going 
to do it himself, speak a word for me. That was what 
the Detective told me. 
By Mr. Stroup: 
Q: The Detective told you that he would speak a word 
for you? 
A: Yeah. 
Q: That was Detective Dorsey? 
A: Yeah. 

Habeas Transcript at 122. 

18/ In his closing argument to the jury the prosecutor developed 
the malice argument: 

He (McCleskey) could have gotten out of that back door 
just like the other three did, but he chose not to do 
that, he chose to go the other way, and just like Offie 
Evans says, it doesn't make any difference if there had 
been a dozen policemen come in there, he was going to 

shoot his way out. He didn't have to do that, he could 
have run out the side entrance, he could have given up, 
he could have concealed himself like he said he tried 
to do under one of the couches and just hid there. He   iv     
 



    AQ 72A 
(Rev. 8/82) 

could have done that and let them find him, here I am, 

peekaboo. : 

He deliberately killed that officer on purpose. I can 

guess what his purpose was, I am sure you can guess 

what it was, too. He is going to be a big man and kill 

a police officer and get away with it. That is malice. 

Trial Transcript at 974-75. 

19/ Although petitioner has not made this argument, the court 

notes in passing that Evans' testimony at trial regarding the 

circumstances of his escape varies markedly from the facts 

appearing in the records of federal prison authorities. For 

example, the records show that Evans had been using cocaine and 

opium immediately prior to and during his absence from the 

halfway house. Petitioner's Exhibit D, filed June 25, 1982, 

Also, prison records show that upon being captured Evans told 

authorities he had been in Florida working undercover in a drug 

investigation. Petitioner's Exhibit E, filed June 25, 1982. 

These facts, available to the prosecutorial team but unknown to 

the defense, contradict Evans' belittling of his escape. See 

Note 1, supra. The prosecution allowed Evans' false testimony to 

go uncorrected, and the jury obtained a materially false im- 

pression of his credibility. Under these circumstances the good 

faith or bad faith of the prosecution is irrelevant. Brady vs. 

Maryland, 373 U.S. 83, 87 (1963); Napue vs. Illinois, 360 U.S. 
  

  

    
  

264 (1959). 

20/ Nothing the court says in this part of the opinion is meant 

to imply that petitioner's confinement for consecutive life 

sentences on his armed robbery convictions is unconstitutional. 

The court holds only that the conviction and sentence for murder 

are unconstitutional. 

21/ The relevant portions of the trial court's jury instructions 

are set forth below. The portions to which petitioner objects 

are underlined. 

Now, the defendant enters upon the trial of this 

case, of all three charges set forth in the indictment, 

with the presumption of innocence in his behalf, and 

that presumption remains with him throughout the trial 

of the case unless and until the State introduces 

evidence proving the defendant's guilt of one or more 

or all of the charges beyond a reasonable doubt. 

The burden rests upon the state to prove the case by 

proving the material allegations of each count to your 

satisfaction and beyond a reasonable doubt. In 

  

 



    AQ 72A 
(Rev. 8/82) 

  

determining whether or not the state has carried that 

burden you would consider all the evidence that has 

been introduced here before you during the trial of 

this case. 

Now, in every criminal prosecution, ladies and 

gentlemen, criminal intent is a necessary and material 

ingredient thereof. To put it differently, a criminal 

intent is a material and necessary ingredient in any 

criminal prosecution. 

I will now try to explain what the law means by 

criminal intent by reading you two sections of the 

criminal code dealing with intent, and I will tell you 

how the last section applies to you, the jury. 

One section of our law says that the acts of a 

person of sound mind and discretion are presumed to be 
  

  

the product of the person's will, and a person of sound 
  

mind and discretion is presumed to intend the natural 
  

and probable consequences of his acts, but both of 
  

these presumptions may be rebutted. 
  

    
I charge you, however, that a person will not be 

presumed to act with criminal intention, but the second 

code section says that the trier of facts may find such 

intention upon consideration of the words, conduct, 

demeanor, motive and all other circumstances connected 

with the act for which the accused is prosecuted. 

Now, that second code section I have read you as the 

term the trier of facts. In this case, ladies and 

gentlemen, you are the trier of facts, and therefore it 

is for you, the jury, to determine the question of 

facts solely from your determination as to whether 

there was a criminal intention on the part of the 

defendant, considering the facts and circumstances as 

disclosed by the evidence and deductions which might 

reasonably be drawn from those facts and circumstances. 

Now, the offense charged in Count One of the 

indictment is murder, and I will charge you what the 

law says about murder. 

I charge you that a person commits murder when he 

unlawfully and with malice aforethought, either express 

or implied, causes the death of another human being. 

Express malice is that deliberate intention to take 

vi 

  

 



    AQ 72A 
(Rev. 8/82) 

  

    

° . 

away the life of a fellow creature which is manifested 

by external circumstances capable of proof. Malice 

shall be implied when no considerable provocation 

appears and where all the circumstances of the killing 

show an abandoned and malignant heart. That is the 

language of the law, ladies and gentlemen. 

I charge you that legal malice is not necessarily 

ill-will or hatred. It is the intention to unlawfully 

kill a human being without justification or mitigation, 

which intention, however, must exist at the time of the 

killing as alleged, but it is not necessary for that 

intention to have existed for any length of time before 

the killing. 

In legal contemplation a man may form the intention 

to kill a human being, do the killing instantly 
thereafter, and regret the deed as soon as it is done. 

In other words, murder is the intentional killing of a 

human being without justification or mitigation. 

Trial Transcript, 988, 996-97, 998-99, 

22/ whether a Sandstrom error can be held to be harmless remains 

an open question at this time. The Supreme Court expressly left 

open in Sandstrom the question of whether a burden-shifting jury 

instruction could ever be considered harmless. 442 U.S. at 

526-27. The courts of this circuit have held that where the 

Sandstrom error is harmless beyond a reasonable doubt a reversal 

Of the conviction is not warranted. See, e.g., Lamb vs. Jerni- 

gan, 683 F.2d 1332, 1342-43 (llth Cir. 1982). In Connecticut vs. 

Johnson, G.8. . -, 103 s.Ct. 969 (1983), the Supreme Court 

granted certiorari to resolve the question of whether a Sandstrom 

error could ever be considered harmless. Four Justices spe- 

cifically held that the test of harmlessness employed by this 

circuit --whether the evidence of guilt was so overwhelming that 

the erroneous instruction could not have contributed to the 

jury's verdict -- was inappropriate. Id. at 977. However, an 

equal number of justices dissented from this holding. Id. at 979 

(Powell, J., joined by Burger, C.J., Rehnquist and O'Connor, 

J.J., dissenting). The tie-breaking vote was cast by Justice 
Stevens who concurred in the judgment on jurisdictional grounds. 
Id. at 978 (Stevens, J., concurring in the judgment). 

  

  

  

  

  

  

  

Because a majority of the Supreme Court had not declared the 
harmless error standard employed in this circuit to be erroneous, 
the Eleventh Circuit has continued to hold that Sandstrom errors 
may be analyzed for harmlessness. See Spencer vs. Zant, 715 F.2d 

1562 (llth Cir. 1983). 

  

  

vil 

  

 



    

  

AQ 72A 
(Rev. 8/82) 

23/ Georgia Code Ann. §26-1902° (now codified at 0.C.G.A. 

§16-8-41) provides in pertinent part: 

(a) A person commits armed robbery when, with intent 

to commit theft, he takes property of another from the 

person or the immediate presence of another by use of 

an offensive weapon. 

24/ Georgia Code Ann. §26-1101 (now codified at 0.C.G.A. 

§16-5-1) defines the offense of murder as follows: 

(a) A person commits the offense of murder when he 

unlawfully and with malice aforethought, either express 

or implied, causes the death of another human being. 

(b) Express malice is that deliberate intention 

unlawfully to take away the life of a fellow creature 

which is manifested by external circumstances capable 

of proof. Malice shall be implied where no consider- 

able provocation appears and where all the circum- 

stances of the killing show an abandoned and malignant 

heart. 

25/ 1n Franklin the trial court charged the jury that: 
  

[t]he acts of a person of sound mind and discretion are 

presumed to be the product of the person's will, but 

the presumption may be rebutted. A person of sound 

mind and discretion is presumed to intend the natural 

and probable consequences of his acts, but the pre- 

sumption may be rebutted. 

Franklin vs. Francis, 720 F.2d at 1210. 
  

26/ The relevant portion of the prosecutor's argument to the 

jury in favor of the death penalty is set forth below: 

Now, what should you consider as you are 

deliberating the second time here, and I 

don't know what you are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse being 

exhibited during this trial by Mr. McCleskey? 

Have you observed any remorse exhibited while 

he was testifying? 

Have you observed any repentance by Mr. 

McCleskey, either visually as you look at him 

now or during the trial or during the time 

that he testified? Has he exhibited to you 

viii       
 



   
AQ 72A 

(Rev. 8/82) 

  

4 
4 

any sorrow, both visually or during the time 

that he was testifying? 

Have you seen any tears in his eyes for this 

act that he has done? 

I would also ask you to consider the prior 
  

convictions that you have had with you in the 
  

Jury room, and particularly the one where he 
  

got three convictions. 1 believe if you look 
  

at those papers carefully you are going to 
  

find, I think, on one of those he got three 
  

Tife sentences to begin with, and then there 
  

1s a cover sheet where apparently that was 
  

reduced to what, eighteen years Or fifteen 
  

vears or something, which means of course, he 
  

went through the appellate process and 

somehow got it reduced. 
  

  

    
Now, I ask you to consider that in conjunc- 

tion with the life that he has set for 

himself. 

You know, I haven't set his goals, you 

haven't set his goals, he set his own goals, 

and here is a man that served considerable 

periods of time in prison for armed robbery, 

just like Ben Wright said, you know, that is 

his profession and he gets in safely, takes 

care of the victims, although he may threaten 

them, and gets out safely, that is what he 

considers doing a good job, but of course you 

may not agree with him, but that is job 

safety. 

I don't know what the Health, Education and 

Welfare or whatever organization it is that 

checks on job safety would say, but that is 

what Mr. Ben Wright considers his responsi- 

bility. 

Now, apparently Mr. McCleskey does not 

consider that his responsibility, so consider 

that. The life that he has set for himself, 

the direction he has set his sails, and 

thinking down the road, are we going to have 

to have another trial sometime for another 

peace officer, another corrections officer, 

or some innocent bystander who happens to 

walk into a store, or some innocent person 

who happens to be working in the store who 

makes the wrong move, who makes the wrong 

ix 

  

 



    AQ 72A 
(Rev. 8/82) 

  

  

    

turn, that makes the wrong gesture, that 

moves suddenly and ends up with a bullet in 

their head? 

This has not been a pleasant task for me, and 

I am sure it hasn't been a pleasant task for 

you. I would have preferred that some of the 

other Assistants downstairs be trying this 

case, I would prefer some of the others be 

right here now instead of me, and I figure a 

lot of you are figuring why did I get on this 

jury, why not some of the other jurors, let 

them make the decision. 

I don't know why you are here, but you are 

here and I have to be here. It has been 

unpleasant for me, but that is my duty. I 

have tried to do it honorably and I have 

tried to do it with justice. I have no 

personal animosity toward Mr. McCleskey, I 

have no words with him, I don't intend to 

have any words with him, but I intend to 

follow what I consider to be my duty, my 

honor and justice in this case, and I ask you 

to do the same thing, that you sentence him 

to die, and that you find aggravating 

circumstances, both of them, in this case. 

Transcript at 1019-21. 

27/ Although the point has not been argued by either side and is 

thus not properly before the court, the prosecutor's arguments 

may have been impermissible on the grounds that they encouraged 

the jury to take into account the possibility that petitioner 

would kill again if given a life sentence. Such "future victims" 

arguments have recently been condemned by the Eleventh Circuit on 

the grounds that they encourage the jury to impose a sentence of 

death for improper or irrelevant reasons. See Tucker vs. Fran- 

cis, F.2& . , No. 83-8466 (llth Cir.., Jan. 16, 1984); Brooks 

vs. Francis, 716 F.24 780 (llth Cir. 1983); Hance vs. Zant, 696 

F.2d 940 (llth Cir. 1983). The court makes no intimation about 

the merits of such an argument and makes mention of it only for 

the purpose of pointing out that it has not been raised by fully 

competent counsel. 

  

  

  

  

28/ The relevant portion of the trial judge's instructions to 

the jury were as follows: 

Now, ladies and gentlemen, there was 
certain evidence that was introduced here, 

and 1. told you it was introduced for a 

  

 



    AQ 72A 

(Rev. 8/82) 

    

§ he 

limited purpose, and I will repeat the 

cautionary charge I gave you at that time. 

I told you that in the prosecution of a 

particular crime, evidence which in any 

manner tends to show that the accused has 

committed another transaction, wholly 

distinct, independent and separate from that 

for which he is on trial, even though it may 

show a transaction of the same nature, with 

similar methods and in the same localities, 
it is admitted into evidence for the limited 
purpose of aiding in identification and 
illustrating the state of mind, plan, motive, 
intent and scheme of the accused, if, in 
fact, it does to the jury so do that. 

Now, whether or not this defendant was 
involved in such similar transaction or 
transactions is a matter for you to deter- 
mine. Furthermore, if you conclude that the 
defendant was involved in this transaction or 
these transactions, you should consider it 
solely with reference to the mental state of 
the defendant insofar as it is applicable to 
the charges set forth in the indictment, and 
the court in charging you this principle of 
law in no way intimates whether such trans- 
action or transactions, if any, tend to 
illustrate the state of mind or intent of the 
defendant or aids in identification, that is 
a matter for you to determine. 

Transcript at 9292-93, 

29/ The relevant portion of the judge's sentencing 
orinted below. The challenged portion is underlined. 

I charge you that in arriving at your 
determination you must first determine 
whether at the time the crime was committed 
either of the following aggravating circum- 
stances was present and existed beyond a 
reasonable doubt; one, that the offense of 

murder was committed while the offender was 
engaged in the commission of another capital 
felony, to wit, armed robbery; and two, the 
offense of murder was committed against any 
peace officer, corrections employee or 
fireman while engaged in the performance of 
his official duties. 

Xi 

charge is 

  

 



      

  

AO 72A 
(Rev. 8/82) 

  

Now, if you find one or both of these 

aggravating circumstances existed beyond a 

reasonable doubt, upon consideration of the 

offense of murder, then you would be au- 

thorized to consider imposing a sentence of 

death relative to that offense. 

If you do not find beyond a reasonable 

doubt that one of the two of these aggra- 

vating circumstances existed with reference 

to the offense of murder, then you would not 

be authorized to consider the penalty of 

death, and in that event the penalty imposed 

would be imprisonment for life as provided by 

law. 

In arriving at your determination of which 

penalty shall be imposed, you are authorized 

to consider all of the evidence received here 

in court, presented by the State and the 

defendant throughout the trial before you. 

You should consider the facts and cir- 

cumstances in mitigation. Mitigating 

circumstances are those which do not con- 

stitute a justification or excuse for the 

offense in question, but which in fairness 

and mercy may be considered as extenuating or 

reducing the degree of moral culpability or 

blame. 

Now, it is not mandatory that you impose 

the death penalty even if you should find one 

of the aggravating circumstances does exist 

or did exist, You could only impose the 
death penalty if you do find one of the two 
statutory aggravating circumstances I have 

submitted to you, but if you find one to 
exist or both of them to exist, it is not 
mandatory upon you to impose the death 

penalty. 

Transcript, 1027-29. 

xii       
 



    

  

AO 72A . » 
(Rev. 8/82) 

30/ A portion of the cross-examination was as follows: 

Q: Are you saying you were guilty or you were not 

guilty? 
A: Well, I was guilty on this. 

Q: Three counts of armed robbery? 

A: Pardon me? 
Q: You were guilty for the three counts of armed 

robbery? 
A: Yes sir. 
Q: How about the other two that you pled guilty to, 

were you guilty of those? 

A: I was guilty on the Cobb County, but the others I 

was not guilty of, but I pleaded guilty to them anyway, 

because like I say, I didn't see no reason to go 

through a long process of fighting them, and I already 

had a large sentence. 

Q: So you are guilty for the Douglas County armed 

robberies and the Cobb County robbery, but not the 

Fulton County robbery? 
A: I pleaded guilty to it. 
Q: To the Fulton County? 

A: Sure. 
Q:» But are you guilty of that robbery? 

A: I wasn't guilty of it, but I pleaded guilty to it. 

Q: But you were guilty in all of the robberies in Cobb 

County and Douglas County, is that correct? 

Ar I have stated I am guilty for them, but for the 

ones in Fulton County, no, I wasn't guilty of it. I 

pleaded guilty to it because I didn't see no harm it 

could do to me. 
Q: Now, one of those armed robberies in Douglas. 

County, do you recall where that might have been? 

A: You mean place? 
Q:r Yes, sir. 
A: I know it was a loan company. 
Q: Kennesaw Finance Company on Broad Street, is that 

about correct? 
A: That sounds familiar. 
Qo: And did you go into that place of business at 
approximately closing time? 
A: I would say yes. 

: Did you tie the manager and the -- the managers up? 
No, I didn't do that. 
Did somebody tie them up? 
Yes, sir. 

Did they curse those people? 
Did they curse them? 
Yes, sir. 
Not to my recollection. 
Did they threaten to kill those people? 0 

P
1
0
 

P
I
O
 
P
O
 
P
O
 

xiii       
 



    

AO 72A 
(Rev. 8/82) 

    

$ i: 

Not to my recollection. 

Did somebody else threaten to kill them? 

I don't remember anybody making any threats. I 

vaguely remember the incident, but I don't remember any 
threats being issued out. 

Q: Now, the robbery in Cobb County, do you remember 

where that might have been. 
A: Yes, sir, that was at Kennesaw Finance, I believe. 

Q: And do you remember what time of day that robbery 

took place? 
Ar If I am not mistaken, I think it was on the 23rd 

A 

Q 

Q: 1970? 
A: Right. 
Q: About 4:30 p.m.? 
A: Yes, sir. 
Q: Were you found inside the store on the floor with a 
.32 caliber revolver? 
A: Yes, sir, they caught me red-handed, I couldn't 

deny it. 
Q: And did you arrive there with an automobile parked 
around the corner? 
A: I didn't have an automobile. 
Q: Did that belong to Harold McHenry? 
A: McHenry had the automobile. 
Q: And was he with you in the robbery? 
Ar: Yes, sir. 
Q: And was that automobile parked around the corner 
with the motor running? 
A: At that time I don't know exactly where it was 
parked because I didn't get out right there around the 
corner, I got out of the street from the place and he 
was supposed to pick us up right there, but unfor- 
tunately he didn't make it. 
Q: You also have been convicted out in DeKalb County, 

haven't you? 
A: Yes, sir, I entered a plea out there. All of those 
charges stem from 1970. 
Q: What did you plead guilty to out in DeKalb County? 
A: Robbery charge. 
Q: Armed robbery? 
Ar’ Yes, Sir. 
Q: And where was that at, sir? 
A I don't know == I don't remember exactly where the 
robbery was supposed to have took place, but I remember 
entering a guilty plea to it. 
Q: Were you guilty of that? 
Ar No, sir, I wasn't guilty of it. Like I said, 1 had 
spent money on top of money trying to fight these cases 
and I didn't see any need to continue to fight cases 
and try to win them and I have already got a large 
sentence anyway. 

Xiv 

  

 



   

  

AQ 72A 
(Rev. 8/82) 

    

    

& 

4 

Q: I believe the DeKalb County case was out at the 

Dixie Finance Company out in Lithonia, is that correct? 

A: I don't really recollect. I do remember the charge 

coming out, but I don't recall exactly what place it 

was. 

Transcript 845-849. 

31/ The officers gave petitioner cigarettes, potato chips, and 
soft drinks during the interrogation. They also at one point 

discussed with him the attractiveness of a particular female 

officer. 

32/ such routines involve one group of officers acting hostile 

and threatening toward the defendant while another officer or 

group of officers seemingly befriends him and showers him with 

kindness. The rationale for such routines is that defendants 

often believe they have found a friend on the police force to 

whom they can tell their story. 

33/ The examination of Miss Barbara J. Weston was as follows: 

Q: Now, Miss Weston, are you conscientiously opposed to 

capital punishment? : 

A: Yes. : 

Q: Your opposition towards capital punishment, would 

that cause you to vote against it regardless of what 

the facts of the case might be? 

A: Yes, I would say so, because of the doctrine of our 

church. We have a manual that we go by. 

Q: Does your church doctrine oppose capital punish- 

ment? 

Ay Yes, 

Q: So you would oppose the imposition of capital 

punishment regardless of what the facts would be? 

A: Yes. 

Q: You would not even consider that as one of the 

alternatives? 

A: No, I wouldn't. 
The Court: Mr. Turner, any questions you want to ask? 

Mr. Turner: No questions from me. 

The Court: Miss Weston, I will excuse you from this 

case, : 

Transcript 98-99. 

Xv 

  

 



    AQ 72A 

(Rev. 8/82) 

    

® » 

The testimony of Emma T. Cason was as follows: 

Q: Mrs. Cason, are you conscientiously opposed to 

capital punishment? 

A: Yes. 

Q: You are? 

A: Yes. 

Q: If you had two alternatives in a case as far as 

penalties go, that is, impose the death sentence or 

life penalty, could you at least consider the imposi- 

tion of the death penalty? 

A: I don't think so, no. I would have to say no. 

Q: Under any circumstances you would not consider it? 

A: No. 

Mr. Parker: Thank you. 
The Court: Any questions? 

Mr. Turner: No questions. 

The Court: Mrs. Cason, I will excuse you and let you 

return to the jury assembly room on the fourth floor. 

Transcript 129-30. 

34/ The five categories of cases dealing with claims of in- 

effective assistance of counsel in the pretrial investigation 

were: (1) counsel fails to conduct substantial investigation 

into the one plausible line of defense in the case; (2) counsel 

conducts a reasonably substantial investigation into the one line 

of defense that is presented at trial; (3) counsel conducts a 

reasonably substantial investigation into all plausible lines of 

defense and chooses to rely upon fewer than all of them at trial; 

(4) counsel fails to conduct a substantial investigation into one 

plausible line of defense because of his reasonable strategic 

choice to rely upon another plausible line of defense at trial; 

and (5) counsel fails to conduct a substantial investigation into 

plausible lines of defense for reasons other than strategic 

choice. 

35/ Under Georgia law applicable at the time of petitioner's 

trial, petitioner, as a party to the crime of armed robbery, 

would have been subject to the same penalty for the death of 

Officer Schlatt irrespective of whether he actually pulled the 

trigger. See Ga. Code Ann. §26-801 (now codified at 0.C.G.A. 
§16-2-21). Under Georgia law at the time both murder and felony 

murder were punishable by death or life imprisonment. Ga. Code 

Ann. §26-1101 (now codified at 0.C.G.A. §16-5-1). 

36/ Although Mamie Thomas recanted her testimony immediately 

after the preliminary hearing, telling one of the detectives that 

she had lied because she was scared, and a later interview with 

her may have disclosed the change of testimony, this court cannot 

hold as a matter of law that counsel has a duty to disbelieve 

Xvi 

  

 



    

  

AQ 72A | A 
(Rev. 8/82) Q 

  
sworn testimony of a witness favorable to his client. In other 

| words, counsel could reasonably believe that the witness's 
| testimony at trial would be substantially the same as it was at 
| the preliminary hearing. When it turned out to be different, 
| counsel took the proper step of impeaching her later testimony 

| with her testimony at the preliminary hearing. 

| 37/ Pursuant to Ga. Code Ann. §27-2503(a) the State informed 
| trial counsel on October 2, 1978 that it intended to offer in 

| aggravation certain prior convictions and sentences of peti- 
| tioner. The convictions and sentences which petitioner contends 
| were invalid were among those listed. 

38/ See note 26, supra. 

39/ The sister testifed at the state habeas hearing that counsel 
never asked her for any names and that if he had done so she 
would have been ready, willing and able to produce a number of 
names. The habeas court specifically chose to credit the 
testimony of the trial counsel rather than the sister. See 

ii McCleskey ve, Zant, B.C. No. 4909, Slip Op. at 19 (Sup. Ct. of 
| Butts County, April 8, 1981). This finding of fact is presumed 
1 to be correct. 28 USC §2254(4). 

  
  

40/ Georgia's capital sentencing procedure provides for the 
filing of a trial judge's report to be part of the record 
reviewed by the Georgia Supreme Court on appeal. 0.C.G.A. 
§17-10-35. 

41/ For a discussion of proportionality analysis in Eighth 
Amendment jurisprudence see Comment "Down the Road Toward Human 
Decency": Eighth Amendment Proportionality Analysis and Solem 
vs. Helm, 18 Ga. L. Rev. 109 (1983), j 

  

  

  xvii     
 



  

FILED IN CLERK'S OFFICE 
U. 8. D. C. - Atlanta 

"UNITED STATES DISTRICT COURT 
. NORTHERN DISTRICT OF GEORGIA MAR 1 2 1984 

ATLANTA DIVISION 

. GARTER, 

Bv: 

CIVIL ACTION FILE 

WARRREN McCLESKEY, 

Petitioner, 

versus 

PR 

<Z 
Pas 

Ci 
S 

NO. C81-2434A 

WALTER D. ZANT, Super- 
intendent, Georgia 
Diagnostic and 
Classification 
Center, 

N
r
?
 

N
a
 

a
 

N
u
 

N
o
 

N
o
 

N
o
 
N
N
 
N
S
 

Respondent. 
  

ORDER 

Upon consideration of the Petitioner's Motion to Proceed in 

forma pauperis, and for certificate that the appeal is taken in good   

faith, the motion afd certificate are hereby granted. 

This 7 ~ day of i y 1984. 

7¢ 
J. PWEN FORRESTER, 
UNATED STATES DISTRICT JUDGE 

  

   

  

 



  

FILED IN : 
UNITED STATES DISTRICT COURT yu. g Y SERS OFFICE 

  

NORTHERN DISTRICT OF GEORGIA -C. - Atlantg, 
ATLANTA DIVISION 

| MAR 1 2 1984 
WARRREN McCLESKEY, ) H. CARTER ci 

) Ry: v » Clerk 

Petitioner, ) / 7 en A : 
) CIVIL ACTION FILE 

versus ) 

) NO. C81-2434A 

) 
WALTER D. ZANT, Super- ) 

intendent, Georgia ) 
Diagnostic and ) 
Classification ) 
Center, ) 

) 
Respondent. ) 

ORDER 
  

I, J. OWEN FORRESTER, the District Court Judge in the above- 

captioned action, do hereby certify, pursuant to 28 U.S.C. Section 

2253, that there exf{sts probable cause to appeal. 

This 7 = day of Rad , 1984, 
  

  

  J. /OWEN FORRESTER, 
UNITED STATES DISTRICT JUDGE 

 



     

  

AO 72A 
(Rev. 8/82) 

i 

D.C.- Atlant 

IN THE UNITED STATES DISTRICT COURT MAR 23 1984 
FOR THE NORTHERN DISTRICT OF GEORGIA BEN 1. ni 

ATLANTA DIVISION By: BF 
old 4 

WARREN McCLESKEY, : 

Petitioner,   vs. 3 CIVIL ACTION 

NO. C81-2434A 
WALTER ZANT, Warden, : 

Georgia Diagnostic and 
| Classification Center, : 

Respondent. : 

ORDER 

This action is before the court on respondent's motion to 

stay this court's judgment granting the writ of habeas corpus | 

until completion of the litigation through appellate review. The 

court points out to respondent that the court's order of Febru- 

ary 1, 1984 by its own terms stated that the writ would not 

become absolute until "one hundred twenty (120) days after this 

judgment becomes final as a result of the failure of respondent 
  

to lodge an appeal or as the result of the issuance of a mandate 
  

affirming this decision, whichever is later ...." McCleskey vs. 
  

  

zant, Civil Action No. C81-2434A, Slip Op. at 132-33 (February 1, 

1984). Since respondent has filed a notice of appeal the writ of 

habeas corpus will not become absolute until one hundred twenty 

(120) days after issuance of a mandate affirming this decision.       
 



  

    

  

AO 72A 
(Rev. 8/82) 

The court sees no purpose to be served by granting respondent's 

motion. The motion to stay the judgment is therefore DENIED as 

moot.   x 
IT IS SO ORDERED this Z/ day of March, 1984. 

Wr 821 
. EN FORRESTER 

UNITED STATES DISTRICT JUDGE 
Ns