11th Circuit - Attorney's Working Files - Research Vol. 1 of 2

    Case ) 0s: M, Cl, ; / on you | - |) lip: Afr. oy’ Lk L Fp / 

   



he mitigating circumstances 

Petitioner's behalf to factors 
(a) through (g) of FLA STAT 

This claim was raised and 

b proceedings on Petitioner's 

petition with respect to the 

ing hearing held in 1980. Ip 

becond petition alleged tria) 

effective at the first sentenc- 

cause he failed to request an 
ising the jury that circum- 

igation were not limited to 

list. The only difference in 

ented in the present petition 

1 alleges mitigating circum- 

imited to those enumerated 

921.141(6) without couching 

neffective assistance terms. 

lo revisit the same issue by 
‘erent arguments and conclu- 

ifically rejected by the Elev- 

n In re Shriner, 735 F.2d 

1984): 

iments were allowed on suc- 

as petitions, every petitioner 

ptitled to file and have con- 

essive petitions merely by 

ubstantive ground for relief 

petition and then, even after 

tition is denied, by alleging 

betition his attorney’s failure 

substantive ground at the 

claiming that such failure 

y prejudicial when the voir dire 
a “pattern of deep and bitter 

jughout the community. Irvin v. 
at 727, 81 S.Ct. at 1645. In Irvin 

| for example, the panel consisted 
and 370 of those persons enter- 

pinion as to the accused's guilt. 
rors who actually served claimed 
impartial, the Supreme Court held 
many, so many times, admitted 

p a statement of impartiality can 
weight.” Similarly, in Coleman v. 
R4, 226 S.E.2d 911 (1976), at least 

spective jurors examined on the 

opinions as to the guilt of the 
t 916. In the instant case, how- 

prospective juror on the panel 

she had an opinion concerning 
it, so there is no reason to dis- 

eseptation of impartiality given 
orf ,vho actually served. 

  

    

  

McCLESKEY v. KEMP Mpsret 877 
Cite as 753 F.2d 877 (1985) 

constituted ineffective assistance of 

counsel. : 

Id. at 1240. 

The Court accordingly finds that Petition- 

er’'s claim of restriction of non-statutory 

mitigating factors has been previously 

raised and adjudicated on the merits. Re- 

consideration of this claim may be barred 

pursuant to Rule 9(b) and the first branch 
of the Sanders doctrine unless the ends of 

justice would thereby be defeated. 

The Court finds that Petitioner had a full 

and fair opportunity to present this argu- 

ment at the time of litigating the second 

habeas petition. The facts upon which this 

claim is based were known to Petitioner at 

the time the second petition was filed be- 

cause Petitioner relied upon the transcript 

of the first sentencing hearing in setting 

forth the ineffective assistance of counsel 

claim. No justification exists for failing to 

make this argument in the prior habeas 

petitions. 

In addition, the Court finds that the law 

of the case doctrine precludes relitigation 

of this claim because, as previously noted, 

the Eleventh Circuit held in Raulerson v. 

Wainwright, 732 F.2d 803, 810 (11th Cir. 

1984) that challenges to the first sentenc- 

ing proceeding are irrelevant in a petition 

for relief from a sentence imposed at the 

second sentencing proceeding. Again, this 

decision was not clearly erroneous and 

would not work a manifest injustice in this 

case. 

In conclusion, the Court notes that, with 

the exception of one witness’ testimony, 

the gist of the evidence introduced at the 

hearing on abuse of the writ sought to 

establish excusable neglect or the absence 

of deliberate bypass in failing to raise the 

present claims in the prior petition. How- 

ever, this Court has concluded that all of 

Petitioner's claims were indeed raised in 

the previous habeas petition. Thus, the 

first branch, rather than the second 

branch, of the Sanders doctrine applies. 

Accordingly, it is 

ORDERED and ADJUDGED: 

1. That the Petition for Writ of Habeas 

Corpus, filed herein on January 23, 1985, is 

hereby DENIED; 

2. That the Motion for a Stay of Execu- 
tion, filed herein on January 23, 1985, is 

hereby DENIED; 

3. In light of the Court’s rulings, the 

Petitioner's Emergency Motion for Immedi- 

ate Hearing filed on January 26, 1985; Mo- 

tion and Authorities for Evidentiary Hear- 

ing filed on January 23, 1985; Motion for 

Leave to Take Depositions of Out of State 

Witnesses filed on January 23, 1985; and 

Supplemental Motion filed on January 27, 

1985, are hereby rendered MOOT. 

O ¢ KEY NUMBER SYSTEM J 

Warren McCLESKEY, 

Petitioner-Appellee, 

Cross-Appellant, 

Vv. 

Ralph KEMP, Warden, 

Respondent-Appellant, 

Cross-Appellee. 

No. 84-8176. 

United States Court of Appeals, 

Eleventh Circuit. 

Jan. 29, 1985. 

After defendant's convictions and sen- 

tences for murder on two counts of armed 

robbery were affirmed by the Georgia Su- 

preme Court, 245 Ga. 108, 263 S.E.2d 146, 

he petitioned for habeas corpus relief. The 

United States District Court for the North- 

ern District of Georgia, J. Owen Forrester, 

J., 580 F.Supp. 338, granted habeas corpus’ 

relief, but concluded that defendant failed 

to support his claim that Georgia death-sen- 

tencing process was unconstitutional. 

Both defendant and state appealed. The 
Court of Appeals, Roney, Circuit Judge, 

held that: (1) state’s nondisclosure of de-  



878 

tective’s statement to prisoner who testi- 

fied that defendant made a jailhouse con- 

fession did not violate defendant’s due pro- 

cess rights; (2) proof of a disparate impact 

alone is insufficient to invalidate a capital 

sentencing system; (3) fact that on average 

a white victim crime is six percent more 

likely to result in death sentence than a 

comparable black victim crime was not suf- 

ficient to overcome presumption that Geor- 

gia death-sentencing process is operating in 

a constitutional manner; (4) statistical 

study was insufficient to show that defend- 

ant’s sentence was determined by race of 

his victim; (5) defendant failed to establish 

ineffective assistance of counsel; and (6) in 

course of asserting his alibi defense, de- 

fendant effectively conceded issue of in- 

tent, thus rendering erroneous burden- 

shifting instruction on intent harmless be- 

yond a reasonable doubt. 

Reversed and rendered. : 

Tjoflat and Vance, Circuit Judges, con- 

curred with opinions. 

Kravitch, Circuit Judge, issued concur- 

ring statement. 

R. Lanier Anderson, III, Circuit Judge, 

concurred with opinion in which Kravitch, 

Circuit Judge, joined as to the constitution- 

al application of the Georgia Death Statute. 

Godbold, Chief Judge, dissented in part 

and concurred in part with opinion in which 

Johnson, Hatchett and Clark, Circuit 

Judges, joined as to the dissent in the Gig- 

lio issue. 

Johnson, Circuit Judge, dissented In 

part and concurred in part with opinion in 

which Hatchett and Clark, Circuit Judges, 

joined. 

Hatchett and Clark, Circuit Judges, 

dissented in part and concurred in part 

with opinions. 

1. Constitutional Law ¢268(9, 10) 

State violates due process when it ob- 

tains a conviction through use of false evi- 

dence or on basis of a witness’ testimony 

when that witness has failed to disclose a 

promise of favorable treatment from the 

753 FEDERAL REPORTER, 2d SERIES 

prosecution. U.S.C.A. Const.Amends. 5, 

14. 

2. Criminal Law €=700(4) 

Purpose of rule requiring disclosure of 

a promise of favorable treatment as a re- 

ward for his testimony is to ensure that a 

jury knows the facts that motivate witness 

in giving testimony. : 

3. Constitutional Law &=268(10) 

State’s nondisclosure of statement of 

detective to witness that detective would 

“speak a word” for him did not infringe 

defendant’s due process rights, since state- 

ment offered such a marginal benefit that 

it was doubtful it would motivate a reluc- 

tant witness, or that disclosure of state- 

ment would have had any effect on his 

credibility. U.S.C.A. Const.Amends. 5, 14. 

4. Criminal Law ¢=1171.1(1) 

Even if state’s failure to disclose detec- 

tive’s cryptic statement to witness that he 

would “speak a word” for him or to dis- 

close witness’ inconsistent version of es- 

cape constituted a violation of defendant's 

due process rights, error was harmless, 

since it was unlikely that undisclosed infor- 

mation would have affected jury's assess- 

ment of witness’ credibility. U.S.C.A. 

Const.Amends. 5, 14. 

5. Criminal Law €=510 

Under Georgia law, an accomplice’s 

testimony alone in felony cases is insuffi- 

cient to establish a fact. 0.C.G.A. 8 24-4- 

8. 

6. Criminal Law ¢=511.1(4) 

Corroboration of accomplice’s testimo- 

ny need not extend to every material detail. 

7. Criminal Law &=552(1) 

In evidentiary terms, statistical studies 

based on correlation are circumstantial evi 

dence; they are not direct evidence. 

8. Criminal Law ¢=1208.1(4) 

Limited circumstance under which sta- 

tistical evidence alone can establish inten- 

tional racial discrimination in the imposition 

of capital sentence is where the statistical 

evidence of racially disproportionate impact 

is so strong as to permit no inference other   
e
T
 
a
n
.
 

  

 



ES 

nN Const.Amends. 5, 

&T700(4) 

ile requiring disclosure of 

orable treatment as a re- 

imony is to ensure that a 

hets that motivate witness 

y. 

Law €°268(10) 

isclosure of statement of 

ess that detective would 

for him did not infringe 
process rights, since state- 

h a marginal benefit that 

it would motivate a reluc- 

that disclosure of state- 

e had any effect on his 

C.A. Const. Amends. 5, 14. 

vy €1171.1(1) 

b's failure to disclose detec- 

itement to witness that he 

word” for him or to dis- 

consistent version of es- 

a vif'ation of defendant's 

Fhts, Wror was harmless, 

ely that undisclosed infor- 
ave affected jury's assess- 

ss’ credibility. U.S.C.A. 

b, 14. 

w 510 

rgia law, an accomplice’s 

in felony cases is insuffi- 

h a fact. 0.C.G.A. § 24-4- 

w &511.1(4) 

on of accomplice’s testimo- 

nd to every material detail. 

w €=552(1) 

ry terms, statistical studies 

tion are circumstantial evi- 

L not direct evidence. 

w ¢&=1208.1(4) 

umstance under which sta- 

alone can establish inten- 

-rimination in the imposition 

nce is where the statistical 

ally disproportionate impact 

to permit no inference other 

  

  
  

McCLESKEY v. KEMP 
Cite as 753 F.2d 877 (1985) 

than that the results are the product of a 

racially discriminatory intent or purpose. 

9. Criminal Law ¢=388 

Statistical evidence may be presented 
in the trial court through direct testimony 

and cross-examination of statistical infor- 

mation that bears on an issue. 

10. Criminal Law &1213.8(8) 

A successful Eighth Amendment chal- 

lenge, based on race, to a capital sentenc- 

ing system would require proof that the 

race factor is operating in the system in 

such a pervasive manner that it could fairly 

be said that system is irrational, arbitrary 

and capricious. U.S.C.A. Const.Amend. 8. 

11. Constitutional Law €=270(1) 

Where a capital sentencing statute is 

facially neutral, a due process claim based 

on race must be supported by proof that a 

state, through its prosecutors, jurors, and 

judges, has implicitly attached an aggravat- 

ing label to race. U.S.C.A. Const. Amends. 

5, 14. 

12. Constitutional Law 251 

Application of the due process clause is 

an uncertain enterprise which must dis- 

cover what “fundamental fairness” con- 

sists of in a particular situation by first 

considering any relevant precedents and 

then by assessing the several interests that 

are at stake; due process also requires the 

assessment of the risk that the procedures 

being used will lead to erroneous decisions. 

U.S.C.A. Const.Amends. 5, 14. 

13. Constitutional Law &270(2) 

With regard to a claim that a capital 

sentencing process violates due process be- 

cause of a race factor, claimant must 

present evidence which establishes that in 

the process race is a motivating factor in 

the decision. U.S.C.A. Const.Amends. 5, 

14. 

14. Criminal Law ¢=986.2(1) 

Where racial discrimination is claimed 

with regard to sentencing process, not on 

basis of procedural faults or flaws in the 

structure of the law, but on the basis of the 

decisions made within that process, then 

purpose, intent and motive are a natural 

component of the proof that discrimination 

actually occurred. 

15. Constitutional Law &=215 

With regard to a constitutional claim 

of racial discrimination, a showing of dis- 

proportionate impact alone is not sufficient 

to prove requisite discriminatory intent un- 

less no other reasonable inference can be 

drawn. 

16. Criminal Law €=1208.1(4) 

Proof of a disparate impact alone is 

insufficient to invalidate a capital sentenc- 

ing system, unless that disparate impact is 

so great that it compels conclusion that the 

system is unprincipled, irrational, arbitrary 

and capricious such that purposeful dis- 

crimination, i.e., race is intentionally being 

used as a factor in sentencing, can be pre- 

sumed to permeate the system. 

17. Criminal Law ¢=1208.1(4) 

With regard to claim of racial disparity 

in application of a state’s death penalty, 

statistical studies may reflect a disparity so 

great as to inevitably lead to a conclusion 

that the disparity results from discrimina- 

tory intent or motivation. 

18. Criminal Law ¢=1158(1) 

Findings of fact are reviewed under 

the clearly-erroneous standard. 

19. Criminal Law &=1158(1) 

Whether a disparate impact reflects an 

intent to discriminate is an ultimate fact 

which must be reviewed under the clearly- 

erroneous standard. 

20. Criminal Law ¢=1208.1(4) 

Fact that on average a white victim 

crime is six percent more likely to result in 

a death sentence than a comparable black 

victim erime was not sufficient to overcome 

presumption that Georgia capital sentenc- 

ing system is operating in a constitutional 

manner. 

21. Criminal Law ¢=1208.1(4) 

Assuming that statistical study was 

accurate in its conclusion that a white vie- 

tim increased likelihood of death penalty by 

approximately 20 percent in midrange  



880 

cases, such a disparity did not provide basis 

for systemwide challenge to Georgia capi- 

tal-sentencing process, since system as a 

whole is operating in a rational manner, 

and not in a manner that can fairly be 

labeled arbitrary or capricious. 

22. Criminal Law ¢=986.2(1) 

Statistical study showing that, on aver- 

age, race-of-the-victim factor was more 

likely to affect outcome in midrange cases 

than in those cases at high and low ends of 

the spectrum of aggravation was insuffi- 

cient to show that defendant's sentence 

was determined by race of his victim or 

even that race of victim contributed to im- 

position of the penalty. 

93. Criminal Law €¢21166.11(5) 

Ineffective assistance of counsel war- 

rants reversal of a conviction only when 

there is a reasonable probability that the 

attorney's errors altered the outcome of 

the proceeding. 

94. Criminal Law ¢=641.13(1) 

A court may decide an ineffectiveness 

of counsel claim on ground of lack of preju- 

dice without considering reasonableness of 

attorney’s performance. 

95. Criminal Law ¢=1166.11(5) 

Defendant failed to demonstrate preju- 

dice caused by counsel's failure to inter- 

view prisoner who testified that defendant 

gave a jailhouse confession, with regard to 

detective’s statement to prisoner, since 

there was no reasonable probability that 

counsel's failure to discover such evidence 

affected the verdict. 

26. Criminal Law ¢=1166.11(5) 

Defendant failed to establish that he 

was prejudiced by counsel's failure to inter- 

view victims of robbery, in absence of con- 

tention that an in-person interview would 

have revealed something their statements 

did not; moreover, defendant had an oppor- 

tunity to cross-examine several of the rob- 

bery victims at his preliminary hearing. 

27. Criminal Law ¢641.13(6), 1166.11(5) 

Counsel's failure to subpoena victims 

of robbery as defense witnesses did not 

753 FEDERAL REPORTER, 2d SERIES 

constitute ineffective assistance of counsel; 

where counsel relied primarily on alibi de- 

fense at trial, and it would have under- 

mined his defense if he had called the vic- 

tims to testify as to which robber did the 

shooting; moreover, no prejudice could be 

shown by failing to subpoena the witness- 

es. 

28. Criminal Law ¢=641.13(6) 

Attorney's failure to interview state's 

ballistics expert did not constitute ineffec- 

tive assistance of counsel, since attorney 

could have reasonably prepared to cross-ex- 

amine state’s expert by reading expert's 

report in prosecutor’s file; no in-person 

interview was necessary. 

99. Criminal Law ¢641.13(6) 

Where attorney talked with both de- 

fendant and his sister about potential char- 

acter witnesses who would testify at sen- 

tencing phase, they suggested no possibili- 

ties, and sister refused to testify and ad- 

vised attorney that their mother was too 

sick to travel to site of trial, attorney con- 

ducted reasonable investigation for charac- 

ter witnesses. 

30. Criminal Law ¢641.13(6) 

With regard to ineffective assistance 

of counsel claim based on failure of counsel 

to object to state’s introduction of three 

convictions resulting in life sentences, all 

of which were set aside on Fourth Amend- 

ment grounds, evidence did not result in 

any undue prejudice, because although con- 

victions were overturned, charges were not 

dropped and defendant pleaded guilty and 

received sentences of 18 years, a reduction 

in sentence which was disclosed at trial. 

U.S.C.A. Const.Amend. 4. 

31. Jury €=33(2.1), 108 

Jurors who indicated that they would 

not, under any circumstances, consider im- 

posing the death penalty were properly ex- 

cluded, and such exclusion did not violate 

defendant’s Sixth Amendment rights to an 

impartial, community-representative jury. 

U.S.C.A. Const.Amend. 6.    



e assistance of counsel; 

d prigarily on alibi de- 
it . have under- 

{ he had called the vie- 

o which robber did the 

, no prejudice could be 
subpoena the witness- 

&=641.13(6) 

ure to interview state's 
d not constitute ineffec- 

| counsel, since attorney 

bly prepared to cross-ex- 

ert by reading expert's 

tor's file; no in-person 

bssary. 

¢=641.13(6) 

ey talked with both de- 
ster about potential char- 

ho would testify at sen- 

y suggested no possibili- 
Lfused to testify and ad- 

at their mother was too 

Lite of trial, attorney con- 

b investigation for charac- 

ly oo ¥ .13(6) 

to ineffective assistance 

hased on failure of counsel 

e's introduction of three 

ting in life sentences, all 

t aside on Fourth Amend- 

lvidence did not result in 

ice, because although con- 

rturned, charges were not 

endant pleaded guilty and 

es of 18 years, a reduction 

ch was disclosed at trial. 

Amend. 4. 

.1), 108 

indicated that they would 

hircumstances, consider im- 

, penalty were properly ex- 

h exclusion did not violate 

th Amendment rights to an 

unity-representative jury. 

Amend. 6. 

    
  

 McCLESKEY v. KEMP 881 
Cite as 753 F.2d 877 (1985) 

32. Criminal Law 1172.2 

An erroneous burden-shifting instrue- 

tion may have been harmless if evidence of 

guilt was so overwhelming that error could 

not have contributed to jury's decision to 

convict. 

33. Criminal Law 1172.6 

An erroneous burden-shifting instruc- 

tion may be harmless where instruction 

shifts burden on an element that is not an 

issue at trial. 

34. Criminal Law ¢=308 

A defendant in a criminal trial may 

rely entirely on presumption of innocence 

and state’s burden of proving every ele- 

ment of the crime beyond a reasonable 

doubt. : 

35. Criminal Law 1172.2 

Erroneous burden-shifting instruction 

concerning intent was harmless beyond a 

reasonable doubt, considering that defend- 
ant in course of asserting his alibi defense 

effectively conceded issue of intent. 

36. Criminal Law 1172.2 

Where the state has presented over- 

whelming evidence of an intentional killing 

and where defendant raises a defense of 

nonparticipation in the crime rather than 

lack of mens rea, a Sandstrom violation on 

an intent instruction is harmless beyond a 

reasonable doubt. , 

Mary Beth Westmoreland, Asst. Atty. 

Gen., Atlanta, Ga., for respondent-appel- 

lant, cross-appellee. : 

Robert H. Stroup, Atlanta, Ga., John 

Charles Boger, Anthony G. Amsterdam, 

New York University-School of Law, New 
I li re 

{ * All of the Judges of the Court concur in thd 
judgment as to the death-oriented juny.claimj 

and the ineffective assistance of counsel claim. 
Judges Tjoflat, Vance and Anderson join in the 
opinion but each has written separately on the 
constitutional application of the Georgia death 
sentence. 
Judge Kravitch has written separately to concur 
only in the harmless error portion of the opin- 
ion on the Giglio issue but joins in the opinion 
on all other issues. 

York City, for petitioner-appellee, cross-ap- 

pellant. 

Appeals from the United States District 

Court for the Northern District of Georgia. 

Before GODBOLD, Chief Judge, RO- 
NEY, TJOFLAT, JAMES C. HILL, FAY, 

VANCE, KRAVITCH, JOHNSON, AIL- 

BERT J. HENDERSON, HATCHETT, R. 

LANIER ANDERSON, III, and CLARK, 

Circuit Judges. 

RONEY, Circuit Judge, with whom 

Judges TJOFLAT, JAMES C. HILL, FAY, 

VANCE, ALBERT J. HENDERSON and R. 

LANIER ANDERSON, III, join * 

This case was taken en banc principally 

to consider the argument arising in numer- 

ous capital cases that statistical proof 

shows the Georgia capital sentencing law is 

being administered in an unconstitutionally 

discriminatory and arbitrary and capricious 

matter. After a lengthy evidentiary hear- 

ing which focused on a study by Professor 

David C. Baldus, the district court conclud- 

ed for a variety of reasons that the statisti- 

cal evidence was insufficient to support the 

claim of unconstitutionality in the death 

sentencing process in Georgia. We affirm 

the district court’s judgment on this point. 

The en banc court has considered all the 

other claims involved on this appeal. On 

the State’s appeal, we reverse the district 

court’s grant of habeas corpus relief on the 

claim that the prosecutor failed to disclose 

a promise of favorable treatment to a state 

witness in violation of Giglio v. United 

States, 405 U.S. 150, 92 S.Ct. 763, 31 

L.Ed.2d 104 (1972). We affirm the judg- 

ment denying relief on all other points 

raised by the defendant, that is: (1) that 

defendant received ineffective assistance of 

Chief Judge Godbold dissents from the judg- 
ment of the Court on the Giglio issue but joins 
in the opinion on all other issues. 
Judges Johnson, Hatchett and Clark dissent 
from the judgment of the Court on the constitu- 
tional application of the Georgia death sentence 
and the Sandstrom and Giglio issues and each 
has written a separate dissenting opinion.  



\__the front door. | 

882 

counsel; (2) that jury instructions contra- 

vened the due process clause in violation of 

Sandstrom v. Montana, 442 U.S. 510, 99 

S.Ct. 2450, 61 L.Ed.2d 39 (1979); and (3) 

that the exclusion of death-scrupled jurors 

violated the right to an impartial and unbi- 

ased jury drawn from a representative 

cross-section of the community. 

Thus, concluding that the district court 

should have denied the petition for writ of 

habeas corpus, we affirm on all claims de- 

nied by the court, but reverse the grant of 

habeas corpus relief on the Giglio claims. 

FACTS 

Warren McCleskey was arrested and 

charged with the murder of a police officer 

during an armed robbery of the Dixie Fur- 

__niture Store] The store was robbed by a 

band of four men. Three entered through 

| the back door and one through the front. 

{ While the men in the rear of the store 

| searched for cash, the man who entered 

\ through the front door secured the show- 

| room by forcing everyone there to lie face |, 

Ldown on the floor Responding t6 a stent 

alarm, a police officer entered the store by 

the front door. [Two shots were Tired. 

One shot Struck the police officer in the 

head causing his death. The other glanced 

off a cigarette lighter in his chest pocket. 

McCleskey was identified by two of the | 

store personnel as the robber who came in/ 

“Shortly after his arrest, 

McCleskey confessed to participating in the 

robbery but maintained that he was not the 

triggerman.McCleskey confirmed the eyey 

witness’ accounts that it was-he-wha_ en 

tered through the front door} One of his \ 

( accomplices, Ben Wright, “testified that 

McCleskey admitted to shooting the officer. 

7 A jail inmate housed near McCleskey testi{ 

fied that McCleskey made a “jail house 

confession” in which he claimed he was the) 

triggerman| The police officer was Killed , 

| by a bullet fired from a .38 caliber Rossi 

753 FEDERAL REPORTER, 2d SERIES 

penalty hearing, neither side called any wit- 

nesses. The State introduced documentary 

evidence of/McCleskey’s three prior convic-/ 

(tions for armed robbery. 

| 

handgun. McCleskey had stolen a .38 cali- | 
| reveal that one of its witnesses had been 

ber Rossi in a previous holdup. 

PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder 

and two counts of armed robbery. At the 

The jury sentenced McCleskey to death 

for the murder of the police officer and to 

consecutive life sentences for the two 

counts of armed robbery. These convic- 

tions and sentences were affirmed by the 

Georgia Supreme Court. McClesky wv. 

State, 245 Ga. 108, 263 S.E.2d 146, cert. 

denied, 449 U.S. 891, 101 S.Ct. 253, 66 

L.Ed.2d 119 (1980). McCleskey then peti- 

tioned for habeas corpus relief in state 

court. This petition was denied after an 

evidentiary hearing. The Georgia Supreme 

Court denied McCleskey’s application for a 

certificate of probable cause to appeal 

The United States Supreme Court denied a 

petition for a writ of certiorari. McCleskey 

v. Zant, 454 U.S. 1093, 102 S.Ct. 659, 70 

L.Ed.2d 631 (1981). 

McCleskey then filed his petition for ha- 

beas corpus relief in federal district court 

asserting, among other things, the five con- 

stitutional challenges at issue on this ap- 

peal. After an evidentiary hearing and 

consideration of extensive memoranda filed 

by the parties, the district court entered 

the lengthy and detailed judgment from 

which these appeals are taken. McCleskey 

v. Zant, 580 F.Supp. 338 (N.D.Ga.1984). 

This opinion addresses each issue assert: 

ed on appeal in the following order: (1) the 

Giglio claim, (2) constitutionality of the 

application of Georgia’s death penalty, (3) 

effective assistance of counsel, (4) death- 

qualification of jurors, and (5) the Sand- 

\ strom issue. 

GIGLIO CLAIM 

[1] The district court granted habeas 

corpus relief to McCleskey because it deter- 

mined that the state prosecutor failed to 

promised favorable treatment as a rew yard 

for his testimony. The State violates due 

process when it obtains a conviction 

through the use of false evidence or on the    



IES 

neither side called any wit. 
ei uced documentary 

fesk three prior convie- 
robbery. 

pnced McCleskey to death 
f the police officer and to 
sentences for the two 

| robbery. These convie- 
es were affirmed by the 

he Court. McClesky ov, 
08, 263 S.E.2d 146, cert 

. 891, 101 S.Ct. 253, 66 
0). McCleskey then peti- 
s corpus relief in state 
ion was denied after an 
g. The Georgia Supreme 
leskey’s application for a 
obable cause to appeal. 
5 Supreme Court denied a 
of certiorari. McCleskey 
1093, 102 S.Ct. 659, 70 

) 

| filed his petition for ha- 
f in federal district court 
other things, the five con- 
ges at issue on this ap- 
evidentiary hearing and 
ktensgye memoranda filed 
he diyrict court entered 
detailed judgment from 
Is are taken. McCleskey 
upp. 338 (N.D.Ga.1984). 

resses each issue assert- 

> following order: (1) the 

constitutionality of the 

rgia’s death penalty, (3) 

e of counsel, (4) death- 

rors, and (5) the Sand- 

JO CLAIM 

. court granted habeas 
Cleskey because it deter- 
pte prosecutor failed to 
its witnesses had been 

treatment as a reward 

The State violates due 

obtains a conviction 

false evidence or on the   

McCLESKEY v. KEMP 
Cite as 753 F.2d 877 (1985) 

. basis of a witness’s testimony when that 
~- -witngss has failed to disclose a promise of 

favorable treatment from the prosecution. 
Giglio v. United States, 405 U.S. 150, 92 
S.Ct. 763, 31 L.Ed.2d 104 (1972). 

We hold that (1) there was no promise in 

this case, as contemplated by Giglio; and 

(2) in any event, had there been a Giglio 

violation, it would be harmless. Thus, we 

reverse the grant of habeas corpus relief 

on this ground. 

Offie Gene Evans, a prisoner incarcerat- 

ed with McCleskey, was called by the State 

on rebuttal to strengthen its proof that 

McCleskey was the triggerman at the hold- 

up. Evans testified that McCleskey admit- 

ted to him in jail that he shot the policeman 

and that McCleskey said he had worn 

makeup to disguise his appearance during 

the robbery. 

The “Promise” 

At McCleskey’s state habeas corpus 

hearing, Evans gave the following account 

of certain conversations with state offi- 
cials. 

THE COURT: Mr. Evans, let me ask you 
a question. At the time that you testi- 

fied 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. 

Q: (by McCleskey’s attorney): The De- 

tective said he would speak a word for 

you? 

A: Yeah. 

A deposition of McCleskey’s prosecutor 

that was taken for the state habeas corpus 

proceeding reveals that the prosecutor con- 

tacted federal authorities after MecCles- 

key’s trial to advise them of Evans’ cooper- 

ation and that the escape charges were 

dropped. 

The Trial Testimony 

At the trial, the State brought out on 

direct examination that Evans was incar- 

cerated on the charge of escape from a 

federal halfway house. Evans denied re- 

ceiving any promises from the prosecutor 

and downplayed the seriousness of the es- 
cape charge. 

Q: [by prosecutor]: Mr. Evans, have I 

promised you anything for testifying 

today? 

A: No, sir, you ain't. 

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

A: Yes, sir. I've got one, but really it 

ain’t no escape, what the peoples out 

there tell me, because something went 

wrong out there so I just went home. 

I stayed at home and when I called the 

man and told him that I would be a 

little late coming in, he placed me on 

escape charge and told me there 

wasn’t no use of me coming back, and 

I just stayed on at home and he come 

and picked me up. 

Q: Are you hoping that perhaps you 

won't be prosecuted for that escape? 

A: Yeah, I hope I don’t, but I don’t— 

what they tell me, they ain’t going to 

charge me with escape no way. 

‘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. 

The State Habeas Corpus Decision 

The state court rejected McCleskey’s 

Giglio claim on the following reasoning: 

Mr. Evans at the habeas hearing denied 

that he was promised anything for his 

testimony. He did state that he was told 

by Detective Dorsey that Dorsey would 

‘speak a word’ for him. The detective’s 

ex parte communication recommendation 

alone is not sufficient to trigger the ap- 

plicability of Giglio v. United States, 405 

U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] 

(1972).  



884 

The prosecutor at petitioner’s trial, Rus- 

sel J. Parker, stated that he was un- 

aware of any understaridifgs” between 

Evans and any Atlanta Police Depart- 

ment detectives regarding a favorable 

recommendation to be made on Evans’ 

federal escape charge. Mr. Parker ad- 

mitted that ‘there was opportunity for 

‘Atlanta detectives to put in a good word 

for Evans with federal authorities. 

However, he further stated that when. 

any police officer has been killed and 
someone ends up testifying for the State,’ 
putting his life in danger, it is not sur- 

prising that charges, like those against 

Evans, will be dropped. 

In the absence of any other evidence, the 

Court cannot conclude an agreement ex- 

isted merely because of the subsequent 
disposition of criminal charges against a 

witness for the State. 

Although it is reasonable to conclude 

that the state court found that there was 

no agreement between Evans and the pros- 

ecutor, no specific finding was made as to 

Evans’ claim that a detective promised to 

“speak a word for him.” The court merely 

held as a matter of law that assuming 

Evans was telling the truth, no Giglio vio- | 

lation had occurred. 

Was It a Promise? 

The Supreme Court’s rationale for impos- 

ing this rule is that ‘“[t]he jury’s estimate 

of the truthfulness and reliability of a giv- 

en witness may well be determinative of 

guilt or innocence.” Napue v. Illinois, 360 

U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 

1217 (1959). The Court has never provided | 

definitive guidance on when the Govern- 

ment’s dealings with a prospective witness 

so affect the witness’ credibility that they 

must be disclosed at trial. In Giglio, a 
prosecutor promised the defendant's al- 

leged co-conspirator that no charges would 

be brought against him if he testified 

against the defendant. In Napue, a prose- 

cutor promised a witness that in exchange 

for his testimony the prosecutor would rec- 

ommend that the sentence the witness was 

presently serving be reduced. 

Iny of past convictions. 

| convictions for forgery, two burglaries, lar- 

jceny, carrying a concealed weapon, and 

J theft from the United States mail. 

{ cross examination, McCleskey’s attorney | 

! attempted to portray Evans as a “profes- A 
sional criminal” {” Evans also admitted that | 

\ 
OT this substantial impeachment evidence, 

753 FEDERAL REPORTER, 2d SERIES 

[2,3] In this case, the detective’s prom. 
ise to speak a word falls far short of the 

understandings reached in Giglio and Ng- 

pue. As stated by this Court, “[t]he thrust 
of Giglio and its progeny has been to ep. 
sure that the jury know the facts that 
might motivate a witness in giving testimo- 

ny.” Smith v. Kemp, 715 F.2d 1459, 1467 

(11th Cir.), cert. denied, — U.S. — 104 

- S.Ct. 510, 78 L.Ed.2d 699 (1983). The de- 
tective’s statement offered such a marginal 
benefit, as indicated by Evans, that it ig 

doubtful it would motivate a reluctant wit- 

ness, or that disclosure of the statement 

would have had any effect on his credibili- 
ty. The State’s nondisclosure therefore 

failed to infringe McCleskey’s due process 

rights. iinad TV AY i I ho 

Was Any Violation Harmless? 

[4] In any event, there is no ‘“reason- 

able likelihood” that the State’s Tailure to 
disclose the detective’s cryptic statement or 
Evans’ dierent escape S¢enario affected 

the judgment of the jury. See Giglio, 405 

US. at 154, 92 S.Ct. at 766. fEvans cred) 
bility was exposed to substantial impeach- | 
ment even without the detective’s state [ 

ment and the inconsistent description of his | ) 

escape. The prosecutor began His direct } 
[examination by having Evans recite a lita- 

Evans admitted to 

On 

| he was testifying to protect himself and 

one of McCleskey’s codefendants, fTn Nght 

we find it unlikely that the undisclosed ° 

information would have affected the jury's 

See assessment of Evans credibility. 

United States v. Anderson, 574 F.2d 1347, 

1356 (5th Cir.1978). 

[5,6] McCleskey claims Evans’ testimo- 

ny was crucial because the only other testi- 

mony which indicated he pulled the trigger 

came from his codefendant, Ben Wright. 

Ben Wright's testimony, McCleskey urges, 
M3, or A » . - 

TRuy 0 i a Ya anil    



   
ES 

    
   

  

   

  

    

    

   

    

            

   

    
     

    

  

ase, ®e detective’s prom- 

ord falls far short of the 

eached in Giglio and Na- 

py this Court, ‘“[t]he thrust 
progeny has been to en- 

ry know the facts that 
witness in giving testimo- 

emp, 715 F.2d 1459, 1467 

enied, — U.S. ——, 104 

d.2d 699 (1983). The de- 

t offered such a marginal 

hited by Evans, that it is 

motivate a reluctant wit- 

closure of the statement 

ny effect on his credibili- 

nondisclosure therefore 

McCleskey’s due process 

on Harmless? 

ent, there is no “reason- 

hat the State’s failure to 

ive’s cryptic statement or 

escape scenario affected 

he jury. See Giglio, 405 

Ct. at 766. Evans’ credi- 

d stantial impeach- 

ut detective’s state- 

nsistent description of his 

Secutor began his direct 

hving Evans recite a lita- 

ions. Evans admitted to 

gery, two burglaries, lar- 

concealed weapon, and 

nited States mail. On 

, McCleskey’s attorney 

ay Evans as a “profes- 

vans also admitted that 

to protect himself and 

s codefendants. In light 

| impeachment evidence, 

ly that the undisclosed 

have affected the jury's 

vans’ credibility. See 

| nderson, 574 F.2d 1347, 

    

  

    

  

   

            

   
    

   

  

   

   y claims Evans’ testimo- 

use the only other testi- 

ed he pulled the trigger 
defendant, Ben Wright. 

mony, McCleskey urges, 

   

  

  

McCLESKEY v. KEMP 885 
Cite as 753 F.2d §77.(1985) 

would have been insufficient under Georgia 

law to convict him without the corrobora- | 
tion provided by Evans. [In Georgia, an) 

\ es. Nevertheless, this evidence was not raccomplice’s testimony .alone in felony 

cases is insufficient to establish a fact. 

0.C.G.A._§ 24-4-8 __IWright’s testimony, 
"however, was corroborated by McCleskey’s 

{ own confession in which McCleskey admit- 

| ted participation in the robbery. See Ar- 

| nold v. State, 236 Ga. 534, 224 S.E.2d 386, 

| 388 (1976). Corroboration need not extend 

to every material detail. Blalock v. State, 

250 Ga. 441, 298 S.E.2d 477, 479-80 (1983); 
Cofer v. State, 166 Ga.App. 436, 304 S.E.2d 

537, 539 (1983). 
The district court thought Evans’ testi- 

mony critical because of the information he 

supplied about makeup Bnd McCleskey's 
nent In shootimg=the police officer. p=" 

though we apree that his testimony added 
weight to the prosecution's case, we do not 
find that it could “in any reasonable likeli- 
hood have affected the judgment of the 

jury.” Giglio, 405 U.S. at 154, 92 S.Ct. at 

« 766 (quoting Napue v. Illinois, 360 U.S. at 

-
=
 

271, 79 S.Ct. at 1178). | Evans, who was 

called only in rebuttal, . testified that 
McCleskey had told him that he knew he 

Rg 

had to shoot his way out, and that even if | 

there had been twelve policemen he would 

have done the same thing. This statement, 

the prosecutor argued, showed malice. { In) 

his closing argument, however, the prose- 

cutor presented to the jury three reasons 

supporting a conviction for malice murder. 

First, he argued that the physical evidence 

showed malicious intent because it indi- 

cated that McCleskey shot the police offi- 

cer once in the head and a second time in 

the chest as he lay dying on the floor. 

Second, the prosecutor asserted that 

McCleskey had a choice, either to surren- 

der or to kill the officer. That he chose to 

kill indicated malice. Third, the prosecutor 
contended that McCleskey’s statement to 
Evans that he still would have shot his way 

out if there had been twelve police officers 

showed malice. This statement by McCles- 

key was not developed at length during 
Evans’ testimony and was mentioned only 

in passing by the prosecutor in closing ar- 

gument. : os 

RE  . 

Evans’ testimony that McCleskey had 
made up his face corroborated the idenfifi- | 

cation testimony of one of the eyewitness- 

crucial to the State’s case. That McCles- 
key was wearing makeup helps to establish 

he was the robber who entered the furni- 
\ture_store through the front door. This 

fact had already been directly testified to 

by McCleskey’s accomplice and two eyewit- 

nesses as well as corroborated by McCles- 
Key's own confession. That Evans’ testi- 

njony buttresses one of the eyewitnesses’ 

identifications is relatively unimportant. 

"Thus, although Evans’ testimony might 

well be regarded as important in certain | 

respects, the corroboration of that testimo- | 

ny was such that the revelation of the 

Giglio promise would not reasonably affect | 
the jury’s assessment of his credibility and 

therefore would have had no effect on the | 

jury's decision. The district court's grant 
of habeas corpus relief on this issue must 

be reversed. 

CONSTITUTIONAL APPLICATION OF 
GEORGIA’S DEATH PENALTY 

In challenging the constitutionality of 

the application of Georgia's capital statute, 

I McCleskey alleged two related grounds for 

relief: (1) that the “death penalty is admin- 

istered arbitrarily, capriciously, and whim- 

sically in the State of Georgia,” and (2) it 

“is imposed ... pursuant to a pattern and 

practice ... to discriminate on the grounds 

of race,” both in violation of the Eighth and 

Fourteenth Amendments of the Constitu- 

tion. 

The district court granted petitioner’s 

motion for an evidentiary hearing on his 

claim of system-wide racial discrimination 

under the Equal Protection Clause of the 

Fourteenth Amendment. The court noted 

that “it appears that petitioner’s 

Eighth Amendment argument has been re- 

jected by this Circuit in Spinkellink wv. 

Wainwright, 578 F.2d 582, 612-14 (5th Cir. 

1978) ... [but] petitioner's Fourteenth 

Amendment claim may be appropriate for 

consideration in the context of statistical 

        

   

    

   
     
    

   

    

    

   
    

   

      

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886 

evidence which the petitioner proposes to 

present.” Order of October 8, 1982, at 4. 

An evidentiary hearing was held in Au- 

gust, 1983. Petitioner's case in chief was 

presented through the testimony of two 

expert witnesses, Professor David C. Bal- 

dus and Dr. George Woodworth, as well as 

two principal lay witnesses, Edward Gates 

and L.G. Warr, an official employed by 

Georgia Board of Pardons and Paroles. 

The state offered the testimony of two 

expert witnesses, Dr. Joseph Katz and Dr. 

Roger Burford. In rebuttal, petitioner re- 

called Professor Baldus and Dr. Wood- 

worth, and presented further expert testi- 

mony from Dr. Richard Berk. 
kau 

( In a comprehensive opinion, reported at 

| 580 F.Supp. 338, the district court conclud- 

| ed that petitioner failed to make out a 

Rrima facie cage of discrimination in sen- 

tencing based on either the race of victims 

§ or the race of defendants. The Court dis- 

| counted the disparities shown by the Bal- 

¥ dus study on the ground that the research 

(1) showed substantial flaws in the data 

base, as shown in tests revealing coding 

=errors and mismatches between items on 

the Procedural Reform Study (PRS) and 

Comprehensive Sentencing Study (CSS) 

questionnaires; (2) lacked accuracy and 

showed flaws in the models, primarily be- 

cause the models do Tiof measure decisions 

based on knowledge available to decision- 

maker and only predicts outcomes in 50 

percent of the cases; and (3) demonstrated 

=. multi-collinearity among model variables, 

showing interrelationship among the varia- 

. bles and consequently distorting relation- 

ships, making interpretation difficult. 

The district court further held that even 

if a 2 prima facie case had been established, 

the” ‘state had successfully rebutted the 

show! mg because: (1) fhe Fests were no} 

= product of good statistical methodolo- 

, (2) other explanations for the study 

Sn could be demonsirated, such as, | 

white victims were acting as proxies for | 

aggravated cases and that black- victim \ 

Y In summary, we affirm the district court 
cases, and (3) black-victim cases, being left 

cases, and (3) black-victim cases being left 

behind at the life sentence and voluntary 

753 FEDERAL REPORTER, 2d SERIES 

manslaughter stages, are less aggravated 

and more mitigated than the white-victim 

cases disposed of in similar fashion. 

The district court concluded that petition- 

er. “failed To carry his ultimate burden of 

persuasion, hecause there is no consistent 

statistically significant evidence that the 

death penalty is being fmposed on the basis 

of the race of defendant. In particular 

There was no statistically significant evi- 

dence produced to show that prosecutors 

are seeking the death penalty or juries are 

imposing the death penalty because the 

defendant is black or the victim is white. 

Petitioner. conceded that the study 1s incap- 

able of demonstrating that he was singled 

out for the death penalty because of the 

race of either himself or his victim, and, 

therefore, petitioner failed to demonstrate 

that racial considerations caused (him, to, 

receive the death penalty. Hae 

We adopt the following approach in ad- 

dressing the argument that the district 

court erred in refusing to hold that the 

Georgia statute is unconstitutionally ap- 

plied. in light of the statistical evidence. 

First, we briefly describe the statistical 

Baldus study that was done in this case. 

Second, we discuss the evidentiary value 

such studies have in establishing the ulti- 

mate facts that control a constitutional de- 

cision. Third, we discuss the constitutional 

law in terms of what must be proved in 

order for petitioner to prevail on an argu- 

ment that a state capital punishment law is 

unconstitutionally applied because of race 

discrimination. Fourth, we discuss wheth- 

er a generalized statistical study such as 

this could ever be sufficient to prove the 

allegations of ultimate fact necessary to 

sustain a successful constitutional attack 

on a defendant's sentence. Fifth, we dis- 

cuss whether this study 1s yalid to prove 

what it purports to prove.| ( Sixth, we de- ) 

rede that this partieatar study, assuming its 

validity and that it proves what it claims to § 

prove, is insufficient to either require or | 

support a decision for petitioner. L 

| on the ground that, assuming the validity | 

|of the research, 

4 

it would not support a | 
———   

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re J 0 dy 
hn the white-victim papeh 
ilar fashion. 

luded that petition- ~° ir 
timate burden of ° 

bre is no consistent © 

evidence that the 

posed on the basis 

ant. In particular 

hilly significant evi- 

that prosecutors 

enalty or juries are 

bnalty because the ( 
he victim is white. 

L the study is incap- 

that he was singled 

iity because of the 
or his victim, and, 

iled to demonstrate 

bns caused him to 

y. 

ing approach in ad- 

t that the district 

oe to hold that the 

constitutionally ap- 
statistical evidence. 

bribe the statistical 

done in this case. 

e evidentiary value 

tablishing the ulti- 

a constitutional de- 

ss the constitutional 

must be proved in 

prevail on an argu- 

i] punishment law is 

ed because of race 

|, we discuss wheth- 

tical study such as 

ficient to prove the 

b fact necessary to 

onstitutional attack 

nce. Fifth, we dis- 

iy is valid to prove 

ove. Sixth, we de- 

| study, assuming its 

res what it claims to 

either require or 

petitioner. 

i'm the district court 

suming the validity 

ould not support a 

a 

ES Sl SR SR Se FEE HSS RS ERE 

  
  

3 < 1 

x 

’ Tation. 

McCLESKEY v. KEMP 

Cite.as.Z53.5.2d 877 (1985) 

decision that the Georgia law was being \ 
unconstitutionally applied, much less would 

it compel such a finding, the level which 

petitioner ‘would have to reach in order to 

prevail on this s appeal. 

TC The Baldus Study | 

“The Baldus nay analyzed the imposi- 

tion of sentence in homicide cases to deter- 

mine the level of disparities attributable to 

race in the rate of the imposition of the 

death sentence. In the first study, Proce- 

dural Reform Study (PRS), the results re- 

vealed no race-of-defendant effects whatso- 

ever, and the results were unclear -at that 

stage as to race-of-victim effects. 

The second study, the Charging and Sen- 

tencing Study (CSS), consisted of a random 

stratified sample of all persons indicted for 

murder from 1973 through 1979. The 

study examined the cases from indictment 

through sentencing. The purpose of the 

study was to estimate racial effects that 

were the product of the combined effects. 

of all decisions from the point of indictment 

to the point of the final death-sentencing 

decision, and to include strength of the 

evidence, in the cases. 

The study attempted to control for all of 

the factors which play into a capital crime 

system, such as aggravating circumstanc- 

es, mitigating circumstances, strength of 

evidence, time period of imposition of sen- 

tence, geographical areas (urban/rural), 

and race of defendant and victim. The 

data collection for these studigs—was—exX; 
ceedingly complex, involving \cumbersome) - 

data collection instruments, extensive field 

work by multiple data collectors and so- 
phisticated computer coding, entry and 

data cleaning processes. 

Baldus and Woodworth completed a mul- 

titude of statistical tests on the data con- 
sisting of regression analysis, indexing fac- 

tor analysis, Cross tabulation, and Trang u- 

; The Tesults showed a 6% racial 
effect systemwide for white victim, black 

defendant cases with an increase to 20% in 

the mid-range of cases. There was go sug- 

\ gestion that a upiform, institutional bias 

existed that adversely affected defendants 

887 

in white victim-cases in all circumstances, 

or a black defendant in all cases. 

The object of the Baldus study i in Falter 

| County, where McCleskey was convicted, 

J was to determine whether the sentencing 

pattern disparities that were observed 

statewide with respect to race of the victim 4 | 

and race of defendant were pertinent to 

Fulton County, and whether the evidence 

concerning Fulton County shed any light 

_ on Warren McCleskey’s death sentence as 

a 

an aberrant death sentence, or‘ whether 

racial considerations may have played a 

role in the disposition of his case. 

Because there were only ten cases in- 

volving police officer victims in Fulton 

County, statistical analysis could not be 

utilized effectively. Baldus conceded that 

it was difficult to draw any inference con- 

cerning the overall race effect in these 

cases because there had only been one 

death sentence. Hg concluded that based 

on the data there was only a possibility of 

that a racial factor existed in Mebdeskay s 

case. - 
ma 

[Social Science Research Evidence | ay 

To Some extent a broad issue before this 

Court concerns the role that social science. 
is_to have in judicial decisionmaking. So- 

cial science is a broad-based field consist- 

ing of many specialized discipline areas, 

such as psychology, anthropology, econom- 

ics, political science, history and sociology. 

Cf. Sperlich, Social Science Evidence and 

the Courts: Reaching Beyond the Adviso- 

7? ry Process, 63 Judicature 280, 283 n. 14 

(1980). Research consisting of parametric 

and nonparametric measures is conducted 

under both laboratory controlled situations 

and uncontrolled conditions, such as real 

life observational situations, throughout 

the disciplines. The broad objectives for 

social science research are to better under- 

stand mankind and its institutions in order 

to more effectively plan, predict, modify 

and enhance society’s and the individual's 

circumstances. Social science as a nonex- 

act science is always mindful that its re- 

search is dealing with highly complex beha- 

vioral patterns and institutions that exist in 

a highly technical society. At best, this   

Rh



888 

research “models” and “reflects” society 

and provides society with trends and infor- 

mation for broad-based generalizations. 

The researcher’s intent is to use the conclu- 

sions from research to predict, plan, de- 

scribe, explain, understand or modify. To 

utilize conclusions from such research to 

explain the specific Intent of a specific De- 

havioral situation goes beyond the legiti- 

mate Uses TOT such research. Even when 

this research 1s at a high level of exactness, 

in design and results, social scientists read- 

ily admit their steadfast hesitancies to con- 

clude such results can explain specific be- 

havioral actions in a certain situation. 

The judiciary is aware of the potential 

limitations inherent in such research: (1) 

the imprecise nature of the discipline; (2) 

the potential inaccuracies in presented 

data; (3) the potential bias of the research- 

er; (4) the inherent problems with the 

methodology; (5) the specialized training 

needed to assess and utilize the data com- 

petently, and (6) the debatability of the 

appropriateness for “courts to use empirical 

evidence In decisionmaking. Cf. Henry, In- 

troduction: A Journey into the Future— 

The Role of Empirical Evidence in Devel- 

oping Labor Law, 1981 U.IlLL.Rev. 1, 4; 

Sperlich, 63 Judicature at 283 n. 14. 

Historically, beginning with “Louis Bran- 

deis’ use of empirical evidence before the 

Supreme Court ... persuasive social sci- 

ence evidence has been presented to the 

| courts.” Forst, Rhodes & Wellford, Sen- 
IW” } tencing and Social Science: Research for 

| {he Formulation of Federal Guidelines, 1 
Hofstra L.Rev. 355 (1979). See Muller v. 
Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 

L.Ed. 551 (1908); Brown v. Board of Edu- 

cation, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 

873 (1954). The Brandeis brief presented 

social facts as corroborative in the judicial 

decisionmaking process. O’Brien, Of Judi- 

cial Myths, Motivations and Justifica- 

ttors—A-Postseript on Sorial Science and 
the Law, 64 Judicature 285, 288 (1987). 

The raedels brief “is a well-known tech- 

nique for asking the court to take judicial 

notice of social facts.” Sperlich, 63 Judica- 

ture at 280, 285 n. 31. “It does not solve 

the problem of how to bring valid scientific 

753 FEDERAL REPORTER, 2d SERIES 

materials to the attention of the court.... 

Brandeis did not argue that the data were 

valid, only that they existed.... The main 

contribution ... was to make extra-legal 

data readily available to the court.” Id. 

This Court has taken a position that so- 

cial science research does play a role in 

judicial decisionmaking in certain situa- 

tions, even in light of the limitations of 

such research. Statistics have been used 

primarily in cases addressing discrimina- 

- tion. 

[7] Statistical analysis is useful only to 

show facts. In evidentiary terms, statisti- 

cal studies based on correlation are circum- 

stantial evidence. They are not direct evi- 

dence. Teamsters v. United States, 431 

U.S. 324, 340, 97 S.Ct. 1843, 1856, 52 

L.Ed.2d 396 (1977). Statistical studies do 

not purport to state what the law is in a 

given situation. The law is applied to the 

facts as revealed by the research. 

In this case the realities examined, based 

on a certain set of facts reduced to data, 

were the descriptive characteristics and 

numbers of persons being sentenced to 

death in Georgia. Such studies reveal, as 

circumstantial evidence through their study 
analyses and results, possible, or probable, 

relationships that may exist in the realities 

studied. : 

[8] The usefulness of statistics obvious- 

ly depends upon what is attempted to be 

proved by them. If disparate impact is 

sought to be proved, statistics—are—more 

useful than if the causes of that impact 

‘must be proved. Where intent and motiva- 

tion must be proved, the statistics have 

éven_less utility. This Court has said in 

discrimination cases, however, that while 

statistics alone usually cannot establish in- 

tentional discrimination, under certain lim- 

ited circumstances they might” Spencer 

v" Zant, 715 F.2d 1562, 1581 (11th Cir. 

1983), on pet. for rek’g and for reh’g en 

banc, 729 F.2d 1293 (11th Cir.1984). See 

also Eastland v. Tennessee Valley Au- 

thority, 104 F.2d 613, 618 (11th Cir.1983); 

Johnson v. Uncle Ben's, Inc., 628 F.2d 419, 

421 (5th Cir.1980), cert. denied, 459 us.    



bntion of the court. . .. 

bue that the data were 

existed.... The main 
hs to make extra-legal 

ble to the court.” Id. 

ken a position that so- 

h does play a role in 

ing in certain situa- 

of the limitations of 

tistics have been used 

addressing discrimina- 

halysis is useful only to 
dentiary terms, statisti- 

correlation are circum- 

I'hey are not direct evi- 
v. United States, 431 

S.Ct. 1843, 1856, 52 

Statistical studies do 

e what the law is in a 

e law is applied to the 

y the research. 

calities examined, based 

facts reduced to data, 

ve characteristics and 

s being sentenced to 

Such studies reveal, as 

bnce through their study 

, possible, or probable, 

ay exist in the realities 

pss of statistics obvious- 

hat is attempted to be 

If disparate impact is 

ed, statistics are more 

causes of that impact 

Vhere intent and motiva- 

bed, the statistics have 

This Court has said in 

s, however, “that while 

ally cannot establish in- 

htion, under certain lim- 

they might.” Spencer 

| 1562, 1581 (11th Cir. 

reh’g and for reh’g en 

03 (11th Cir.1984). See 

Tennessee Valley Au- 

513, 618 (11th Cir.1983); 

Ren’s, Inc., 628 F.2d 419, 

cert. denied, 459 U.S. 

EERIE NN ee 

  
  

McCLESKEY v. KEMP 889 
Cite as 753 F.2d 877 (1985) 

967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). 

These limited circumstances are where the 

statistical evidence of racially dispropor- 

tionate impact is so strong as to permit no 

inference other than that the results gre 
the product™8T a raciany discriminatory in- 
tent or purpose. See Smith v. Balkcom, 

671 F.2d 858 (5th Cir. Unit B), cert. denied, 

459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 

(1982). 

[9] Statistical evidence has been re- 

ceived in two ways. The United States 

Supreme Court has simply recognized the 

existence of statistical studies and social 

science research in making certain deci- 

sions, without such studies being subject to 

the rigors of an evidentiary hearing. Mul- 

ler v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 

L.Ed. 551 (1908); Fowler v. North Caroli- 

na, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 

1212 (1976); Woodson v. North Carolina, 

428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 

(1976); Jurek v. Texas, 428 U.S. 262, 96 

S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt 

v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 

L.Ed.2d 913 (1976); Gregg v. Georgia, 428 

U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 

(1976). The “Supreme Court, for example, 

encountered severe criticism and opposition 

to its rulings on desegregation of public 

schools, the exclusionary rule, and the 

retroactivity of its decisions, precisely be- 

cause the court relied on empirical general- 

ization.” O’Brien, The Seduction of the 

Judiciary: “Social Science and the Courts, 

64 Judicature 8, 19 (1980). In each of these 

situations the Court “focused” beyond the 

specifics of the case before it to the “insti- 

tutions” represented and through a specific 

ruling effected changes in the institutions. 

On the other hand, statistical evidence may 

be presented in the trial court through di- 

rect testimony and cross- examination on 

statistical mmformation that bears on an is- 

sue. Such evidence is examined carefully 

and subjected to the tests of relevancy, 

authenticity, probativeness and credibility. 

Cf Henry, 1981 U.IlLL.Rev. at 8. 

One difficulty with statistical evidence is. 

that it may raise more questions than it 

answers. This Court reached that conclu- 

Li Ll SRE SE EES 

sion in Wilkins v. University of Houston, 

654 F.2d 388 (5th Cir. Unit A 1981). 
Wilkins this Court held that “[m]ultiple 
regression analysis is a relatively sophisti- 

cated means of determining the effects 

that any number of different factors have 

on a particular variable.” Id. at tn 
This Court noted that the methodology "i Hs 
subject to misuse and Hus must be em- 
ployed with great care.” Id. at 403. Pro- 
cedurally, when multiple regression is used 

“it will be the subject of expert testimony 
and knowledgeable cross-examination from 

both sides. In this manner, the validity of 
the model and the significance of its results 

will be fully developed at trial, allowing the 

trial judge to make an informed decision as 
to the probative value of the analysis.” Id. 
Having done this, the Wilkins Court, in an 

employment discrimination case, held “the 
statistical evidence associated with the mul- 

tiple regression analysis is inconclusive, 

raising more questions than it answers.” 

Id. 

Even if the statistical evidence is strong geome «(h ] 

there 1s generally a need for additional “vieaq ° 
In Wade v. Mississippi Cooper- 65°14 evidence. 

ative Extension Serv., 528 F.2d 508 (5th 

Cir.1976), the results drawn from the multi- 

variate regression analysis were supported 

by additional evidence. Id. at 517. In 

Wade the statistics did not “stand alone” 

as the sole proof of discrimination. 

Much has been written about the rela- 

tionship of law and social science. “If 
social science cannot produce the required 

answers, and it probably cannot, its use is 

likely to continue to lead to a disjointed . 

incrementalism.” 
And Death Penalty Cases, 1 Law & Pol'y 
Q 336,367 (1979). "Social science can 
probably make its greatest contribution to 

legal theory by investigating the causal 

forces behind judicial, legislative and ad- 

ministrative decisionmaking and by probing 

the general effects of such decisions.” Na- 

gel, Law And The Social Sciences: What 

Can Social Science Contribute? 356 A.B. 

A.J. 356, 357-58 (1965). 

With these observations, this Court ac- 

fcepts social science research for what the 
’   

Daniels, Social Science J



890 

social scientist should claim for it. As in{ 2790-91 (Marshall, J, 

all circumstantial evidence cases, the infer- 

ences to be drawn from the statistics are | 

for the factfinder, but the statistics are] 1 5:Ct. at 2833 (Powell, J., dissenting). 

Ee] \\accepted to show the circumstances. J Wi 

wi 

{ Racial Discrimination, the Death Penal- J 
ty, and the Constitution 

McCleskey contends his death sentence is 

unconstitutional because Georgia's death 

penalty is discriminatorily applied on the 

basis of the race of the defendant and the 

victim. Several different constitutional 

bases for this claim have been asserted. 

McCleskey relies on the arbitrary, capri- 

cious and irrational components of the pro- 

hibition of cruel and unusual punishment in 

_ the Eighth Amendment and the equal pro- 

tection clause of the Fourteenth Amend- 

ment. The district court thought that with, 

respect to race-of-the-victim discrimination 
the petitioner more properly stated a claim 

under the due process clause of the Four- 

teenth Amendment. 

Claims of this kind are seldom asserted 

with a degree of particularity, and they 

generally assert several constitutional pre- 

cepts. On analysis, however, there seems 

to be little difference in the proof that 

might be required to prevail under any | of 

the three theories. 

In _Furmgn v. Georgia, 408 U.S. 238, 92 

S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Su- 
preme Court struck down the Georgia 

death pematty system on Eighth _Amend- 
ment grounds, with several of the concur- 
ring justices holding that the system oper- 

ated in an arbitrary and capricious manner 

because there was no rational way to dis- 

tinguish the few cases in which death was 

imposed from the many in which it was not. 

Id. at 313, 92 S.Ct. at 2764 (White, J., 
concurring); id. at 309-10, 92 S.Ct. at 

2762-63 (Stewart, J. concurring). (AL 

r COR “f though race discrimination in the imposi- 

J tion of the death penalty was not the basis 

( of the decision, it was one of several con- 

) cerns addressed in both the concurring and 

[ dissenting opinions. See id. at 249-52, 92 

| S.Ct. at 2731-33 (Douglas, J. concurring); 
id. at 309-10, 92 S.Ct. at 2762-63 (Stewart, 

J. concurring); id. at 364-65, 92 S.Ct. at 

753 FEDERAL REPORTER, 2d SERIES 

concurring); id. at 

389-90 n. 12, 92 S.Ct. at 2803-04 n. 12 

(Burger, C.J., dissenting); id. at 449, 92 

Four years later, the Supreme Court ap- 

proved the redrawn Georgia statute pursu- 

ant to which McCleskey was tried and sen- 

tenced. Gregg v. Georgia, 428 U.S. 153, 96 

S.Ct. 2909, 49 L.Ed.2d 859 (1976). At the 
same time the Court approved statutes 

from Florida and Texas which, like Geor- 

gia, followed a guided discretion approach, 

but invalidated the mandatory sentencing 

procedure of North Carolina and Louisiana. 

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 
2960, 49 L.Ed.2d 913 (1976); Jurek v. Tex- 

as, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 
929 (1976); Woodson v. North Carolina, 

428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 
(1976); Roberts v. Louisiana, 428 U.S. 325, 

96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). 

Since Gregg, we have consistently held P 

that to state a claim of racial discrimination 

in the application of a constitutional capital ° 

statute, intent and motive must be alleged. 
Sullivan v. Wainwright, 121 F.2d 316, 317 
(11th Cir.1983) (statistical impact studies 

insufficient to show state system ‘“inten- 

tionally discriminated against petitioner”), 

petition for stay of execution denied, — 

U.S. —, 104 S.Ct. 450, 78 L.Ed.2d 210 

(1983); Adams v. Wainwright, 709 F.2d 

1443, 1449 (11th Cir.1983) (requiring “a 

showing of an intent to discriminate” or 

“evidence of disparate impact ... so strong 

that the only permissible inference is one 

of intentional discrimination”), cert. de- 

nied, — U.S. ——, 104 S.Ct. 745, 79 

L.Ed.2d 203 (1984); Smith v. Balkcom, 671 

F.2d 858, 859 (5th Cir.Unit B) (requiring 

“circumstantial or statistical evidence of 

racially disproportionate impact SO 

strong that the results permit no other 

inference but that they are the product of a 

racially discriminatory intent or purpose”), 

cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 

L.Ed.2d 148 3 (o8) 

578 F.2d 582 (5th Cir. 7878) cert. a 

440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 

(1979), the Court rejected Eighth and Four-    



., copaurring); id. at 

503-04 n. 12 

iting); 1d. at 449, 92 
J., dissenting). 

e Supreme Court ap- 
eorgia statute pursu- 

ey was tried and sen- 
brgia, 428 U.S. 153, 96 
bd 859 (1976). At the 

rt approved statutes 

xas which, like Geor- 

d discretion approach, 

andatory sentencing 

arolina and Louisiana. 

128 U.S. 242, 96 S.Ct. 

(1976); Jurek v. Tex- 

5.Ct. 2950, 49 L.Ed.2d 

bv. North Carolina, 

2978, 49 L.Ed.2d 944 

uistana, 428 U.S. 325, 
d.2d 974 (1976). 

ave consistently held 

f racial discrimination 

constitutional capital 

ptive must be alleged. 

ght, 721 F.2d 316, 317 

stical impact studies 

state system “inten- 

| against petitioner”), 
brecution denied, — 

450, 78 L.Ed.2d 210 

arnwright, 709 F.2d 

1983) (requiring “a 

to discriminate” or 

P impact ... so strong 

Sible inference is one 

mination”), cert. de- 

, 104 S.Ct. 745, 79 

mith v. Balkcom, 671 

ir.Unit B) (requiring 

atistical evidence of 

ate impact ... so 

Its permit no other 

y are the product of a 

y intent or purpose”), 

882, 103 S.Ct. 181, 74 

link v. Wainwright, 

r.1978), cert. denied, 

1548, 59 L.Ed.2d 796 

ted Eighth and Four- 

  

A
d
o
 

it
 

ol
 
o
h
 

Fe
 

  

McCLESKEY v. KEMP | ee] 
Cite as 753 F.2d 877 (19853) 

teenth Amendment claims that the Florida 
“death penalty was being applied in a dis- 
criminatory fashion on the basis of the 
victim’s race. The Spinkellink Court read 

Gregg and its companion cases ‘as holding 
that if a state follows a properly drawn 

statute in imposing the death penalty, then ¢ 

the arbitrariness and capriciousness—and 

therefore the racial discrimination con- 

demned in Furman—have been conclusive- 

ly removed.” Id. at 613-14. Spinkellink 

can not be read to foreclose automatically 

all Eighth Amendment challenges to capital | 

sentencing conducted under a facially con-| 

stitutional statute. In Godfrey v. Georgia, 
446 U.S. 420, 100 S.Ct. T7509, 64 L.Ed.2d 398} 

(1980), the Supreme Court sustained ap 

Eighth Amendment challenge to a Georgia 
death sentence because the Georgia court’s 

construction of a portion of that facially 

valid statute left no principled way to dis- 

tinguish the cases where the death penalty 

was imposed from those in which it was 
not. See Proffitt v. Wainwright, 685 F.2d 
12217, 1261 n. 52 (11th Cir.1982). Neverthe- 

less, neither Godfrey nor Proffitt under- 
mines this Court's prior and subsequent 

pronouncements in Spinkellink, Smith, 
Adams, and Sullivan regarding. the 
amount of disparate impact that must be 

shown under either an Eighth Amendment 

or equal protection analysis. 

As the district court here pointed out, 
: | such a standard indicates gn analytical nex- 

§ us between Eighth Amendment claims and 

a Fourteenth Amendment equal protection 

claim. McCleskey v. Zant, 580 F.Supp. 

338, 347 (N.D.Ga.1984). Where an Eighth 

Amendment claim centers around general- 

{ ized showings of disparate racial impact in 

| capital sentencing, such a connection is in- 

| escapable. Although conceivably the level 

or amount of disparate racial Impact that 

would render ag I sentencing 

system Brbitrary and capricioug under “the 

Eighth Mmendment mighL difer Slightly 
from the level or amount of disparate racial 

impact that sayld compel an inference of] 

discriminatory {i fntentyunder The equal prov 

{eetsn clause of the Fourteenth Amend- 

ment, we do not need to decide whether 

there could be a difference in fagnitude 

that would lead to opposite conclusions on 
a system’s constitutionality depending on 

which theory a claimant asserts. 

[10] A successful Eighth Amendment 

challenge would require proof that the race 

factor was operating in the system in such 

a pervasive manner that it could fairly be 
said that the system was irrational, arbi- 
trary and capricious. For the same rea- 
sons that the Baldus study would be insuf- 

ficient to demonstrate discriminatory intent 

or unconstitutional discrimination in the 

Fourteenth Amendment context, it would 

be insufficient to show irrationality, arbi- 

trariness and capriciousness under any 
kind of Eighth Amendment analysis. 

The district court stated that were it 
writing on a clean slate, it would character- 
ize McCleskey’s claim as a due process 
claim. The court took the position that 

McCleskey’s argument, while couched in 

terms of “arbitrary and capricious,” funda- 

mentally contended that the Georgia death 

penalty was applied on the basis of a mor- 

ally impermissible criterion: the race of the 

victim. - 
[11] The district court's theory derives 

some support from the Supreme Court's 

decision in Zant v. Stephens, 462 U.S. 862, 

103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The 
Court there recognized that a state may 
not attach the “aggravating” label as an 

element in capital sentencing to factors 

that are constitutionally impermissible or 

totally irrelevant to the sentencing process, 

fuch as race. If that were done, the Court 

said, “dug process would require that the 

jury’s decision to impose death be set 
aside. "Jd. 462 U.S. at = 108 5, Ct. at 

2747, 77 L.Ed.2d at 255. From this lan- 

guage it is clear that due process would 

prevent a state from explicitly making the 

murder of a white victim an aggravating 

circumstance in capital sentencing. But 

where the statute is facially neutral, a due 

process claim must be supported by proof 

that a state, through its prosecutors, jur- 

ors, and judges, has implicitly attached the 

aggravating label to race.  



892 

[12,13] Even if petitioner had charac 

terized his claim as_one under the due 

process clause, it would not have altered 

" the legal standard governing the showing 

he must make to prevail. The application 

of the due process clause is “an uncertain 

enterprise which must discover what ‘fun- 

damental fairness’ consists of in a particu- 

lar situation by first considering any rele- 

vant precedents and then by assessing the 

several interests that are at stake.” Lassi- 

ter v. Department of Social Services, 452 

~ U.S. 18, 24-25, 101 S.Ct. 2153, 2158-2159, 

68 L.Ed.2d 640 (1981). Due process also 

requires the assessment of the risk that the 

procedures being used will lead to errone- 

ous decisions. 

U.S. 819, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 

18 (1976). Where a due process claim re- 

quires a court to determine whether the 

race of the victim impermissibly affected 

the capital sentencing process, decisions 

under the equal protection clause, charac- 

terized as “central to the Fourteenth 

Amendment’s prohibition of discriminatory 

action by the State,” Rose v. Mitchell, 443 

U.S. 545, 554-55, 99 S.Ct. 2993, 2999-3000, 

61 L.Ed.2d 739 (1979), are certainly “rele- 

vant precedents” in the assessment of the 

risk of erroneous decisions. Thus, as in 

the equal protection context, the claimant 

under a Que Process theory must present 

evidence which establishes that in the capi- 

tal sentencing process race “is a motiyaling 

f4Ctor 1n the decision.” Village of Arling- 
ton Heights v. Metropolitan Housing De- 
velopment Corp., 429 U.S. 252, 266, 97 

S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). 

[14] Rue process and cruel and unusual 

punishment cases do not normally focus og 
the Sntent)of the governmental-aetor. But 
where racial discrimination is claimed, not 

on the basis of procedural faults or flaws 

in the structure of the law, but on the basis 

of the decisions made within that process, 

then purpose, intent and motive are a natu- 

ral component of the proof that discrimina- 

tion actually occurred. 

[15] The Supreme Court has clearly 

held that to prove a constitutional claim of 

raciar discrimination in the equal protection 

Mathews v. Eldridge, 424 ( 

753 FEDERAL REPORTER, 2d SERIES 

- context, intent, purpose, and motive are 

necessary components. Washington v. 

Davis, 426 U.S. 229, 238-42, 96 S.Ct. 2040, 
2046-49, 48 L.Ed.2d 597 (1976). A showing 

of a disproportionate impact alone is not 

sufficient to prove discriminatory intent un- 

less no other reasonable inference can be 

drawn. Arlington Heights, 429 U.S. at 

264-66, 97 S.Ct. at 562-64. This Circuit 

has consistently applied these principles of 

law. Adams v. Wainwright, 709 F.2d 

1443, 1449 (11th Cir.1983), cert. denied, — 

U.S. —, 104 S.Ct. 745, 79 L.Ed.2d 203 

(1984); Sullivan v. Wainwright, 721 F.2d 

316, 317 (11th Cir.1983). 

[16] We, therefore, hold that proof of a \ 77244 

disparate impact alone is insufficient to ; 

invalidate a capital sentencing system, un- 

| less that disparate impact is so great that it 

| compels a conclusion that the system is 

unprincipled, irrational, arbitrary and capri- 

cious such that purposeful discrimination— 

i.e., race is intentionally being used as a 

factor in sentencing—can be presumed to 

permeate the system, 
—— ny 

i Generalized Statistical Studies and the } 

| Constitutional Standard 7 
% 

[17] The question initially a arises as to 

whether any statewide study suggesting a 

racial disparity in the application of a 

state’s death penalty could ever support a 

constitutional attack on a defendant’s sen- 

tence. The answer lies in whether the sta- 

tistical study is sufficient evidence of the 

ultimate fact which must be shown. 

In Smith v. Balkcom, 671 F.2d 858, 859 

(5th Cir.Unit B), cert. denied, 459 U.S. 882, 

103 S.Ct. 181, 74 L.Ed.2d 148 (1982), this 

Court said: 

In some instances, circumstantial or sta- 

tistical evidence of racially disproportion- 

ate impact may be so strong that the 

results permit no other inference but 

that they are the product of a racially 

discriminatory intent or purpose. 

This statement has apparently caused some 

confusion because it is often cited as a 

proposition for which it does not stand. 

Petitioner argues that his statistical study 

) -14 

fon W 

   



bse, and motive are pnt yu, 
Washington », , ~ 

38-42, 96 S.Ct. 2040, B73, 
7 (1976). A showing 

impact alone is not 

riminatory intent un- 

ble inference can be 

eights, 429 U.S. at 

62-64. This Circuit 
td these principles of 

inwright, 709 F.2d 

83), cert. denied, — 

45, 79 L.Ed.2d 203 

atnwright, 721 F.2d 
B). 

hold that proof of a 

he is insufficient to 

htencing system, un- 

act is so great that it 

that the system is 

, arbitrary and capri- 

eful discrimination— 

lly being used as a 

an be presumed to 

al Studies and the 

ard 

initially arises as to 

b study suggesting a 

e application of a 

ould ever support a 

n a defendant’s sen- 

k in whether the sta- 

ient evidence of the 

st be shown. 

7, 671 F.2d 858, 859 

Henied, 459 U.S. 882, 

2d 148 (1982), this 

ircumstantial or sta- 

acially disproportion- 
so strong that the 

other inference but 

roduct of a racially 

or purpose. 

parently caused some 

is often cited as a 

it does not stand. 

his statistical study 

2 J Ad 
A A ey 

  

McCLESKEY v. KEMP 893 
Cite as 753 F.2d 877 (1985) : 

shows a strong inference that there is a 

disparity based on race. That is only the 

first step, however. The second step focus: 

es on how great the disparity is. Once the | 

disparity 1s proven, the question is whether | 

that disparity is sufficient to compel a con- | 

clusion that it results from discriminatory | 

intent and purpose. The key to the prob- | 

lem lies in the principle that the proof, no 

matter how strong, of some disparity is | 

“alone insufficient. 2 

In Spinkellink v. Wainwright, 578 F.2d 

582, 612 (5th Cir.1978), cert. denied, 440 

US. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 

(1979), the petitioner claimed the Florida 

statute was being applied in a discriminato- 

ry fashion against defendants murdering 

whites, as opposed to blacks, in violation of 

the cruel and unusual punishment and 

equal protection components of the Consti- 

tution. Evidence of this disparity was in- 

troduced through expert witnesses. The 

court assumed for sake of argument the 

accuracy of petitioner’s statistics but re- 

jected the Eighth Amendment argument. 

The court rejected the equal protection ar- 

gument because the disparity shown by 

petitioner’s statistics could not prove racial- 

ly discriminatory intent or purpose as re- 

quired by Washington v. Davis, 426 U.S. 

229. 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), 

and Village of Arlington Heights v. Metro- 

politan Housing Development Corp., 429 

U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 

(1977). 578 F.2d at 614-16. 

In Adams v. Wainwright, 709 F.2d 1443 

(11th Cir.1983), cert. denied, — U.S. —, 

104 S.Ct. 745, 79 L.Ed.2d 203 (1984), the 

court, in denying an evidentiary hearing, 

accepted statistics which arguably tended 

to support the claim that the Florida death 

penalty was imposed disproportionately in 

cases involving white victims. The court 

then said: 

Disparate impact alone is insufficient to 

establish a violation of the fourteenth 

amendment. There must be a showing 

of an intent to discriminate.... Only if 

the evidence of disparate impact is so 

strong that the only permissible infer- 

ence is one of intentional discrimination 

will it alone suffice. 

709 F.2d at 1449 (citations omitted). Here 

again, in commenting on the strength of 

the evidence, the court was referring not to 

the amount or guality of evidence which 

showed a disparate impact, buf the amount. 

of disparate impact that would be so strong 

as to lead mevitably to a finding of motiva- 

tion and intent, absent some other explana- 

tion Tor the disparity. 

In commenting on the proffer of the Bal- 

dus study in another case, Justice Powell 

wrote in dissent from a stay of execution 

pending en banc consideration of this case: 

If the Baldus study is similar to the 

several studies filed with us in Sullivan 

v. Wainwright, — U.S. —, 104 S.Ct. 

90, 78 L.Ed.2d 266 (1983), the statistics in 

studies of this kind, many of which date 

as far back as 1948, are merely general 

statistical surveys that are hardly partic- 

ularized with respect to any alleged “in- 

tentional” racial discrimination. Surely, 

no contention can be made that the entire 

Georgia judicial system, at all levels, op- 

erates to discriminate in all cases. Argu- 

ments to this effect may have been di- 

rected to the type of statutes addressed 

in Furman v. Georgia, 408 U.S. 238 [92 

S.Ct. 2726, 33 L.Ed.2d 346] (1972). As 

our subsequent cases make clear, such 

arguments cannot be taken seriously un- 

der statutes approved in Gregg. 

Stephens v. Kemp, — U.S. ——, ——n. 2 

104 S.Ct. 562, 564 n. 2, 78 L.Ed.2d 370, 374 

n. 2 (1984) (Powell, J., dissenting). 

The lesson from these and other cases 

must be that generalized statistical studies 

are of little use in deciding whether a par- 

ticular defendant has been unconstitution- 

ally sentenced to death. As to whether the 

System Jean survive constitutional attack, 

statistical studies at most are probative of 
how much-disparity-is-present, but it is a 

legal question as to how much disparity is 

required before a federal court will accept 

it as evidence of the constitutional flaws in 

the system. 

This point becomes especially critical to a 

court faced with a request for an evidentia- 

ry hearing to produce future studies which | 

E
m
 

i
s
 

Sl 
i
 
U
l
 
S
R
  



894 

will undoubtedly be made. Needless to 

say, an evidentiary hearing would be neces-f 

sary to hear any evidence that a particular 

defendant was discriminated against be- 

cause of his race. But general statistical 

studies of the kind offered here do not even 

purport to prove that fact. Aside from 

that kind of evidence, however, it would 

not seem necessary to conduct a full evi- 

dentiary hearing as to studies which do 

nothing more than show an unexplainable 

disparity. Generalized studies would ap-_ 

pear to have little hope of excluding every 

possible factor that might make a differ- 

ence between crimes and defendants, exclu- 

sive of race. To the extent there is a 

subjective or judgmental component to the 

| discretion with which a sentence is invest- 

ed, not only will no two defendants be seen 

identical by the sentencers, but no two 

sentencers will see a single case precisely 

\} the same. As the court has recognized, 

there are “countless racially neutral varia- 

| bles” in the sentencing of capital cases. 

\ Smith 2. Balkcom, 671 E2d at 850. es 

This is not to recede from the general 

proposition that statistical studies may re- 

flect a disparity so great as to inevitably 

lead to a conclusion that the disparity re- 

sults from intent or motivation. As decid- 

ed by this opinion, the Baldus studies dem- 

onstrate that the Georgia system does not 

contain the level of disparity required to 

meet that constitutional standard. 

| Validity of the Baldus Study J 

social science research of Professor 

Baldus purports to reveal, through statisti- 

cal analysis, disparities in the sentencing of 

black defendants in white victim cases in 

Georgia. A study is valid if ifmeasures 

what it purports _to measure. Different 

studies have different Jeveld of valdity- 

TheTevel of The vandity of the study is 

directly related to the degree to which the 

social scientist can rely on the findings of 

the study as measuring what it claims to 

measure. 

The district court held the study to be 

invalid because of perceived errors in the 

Tota base, the deficiencies in the models, 

and the multi-collinearity existing between 

il a 

753 FEDERAL REPORTER, 2d SERIES 
Er 

_the independent variables. [We hold in this 1 TN | 

case that even II the statistical results are ! 

accepted as valid, the evidence fails to chal- § 

lenge successfully the constitutionality of 

the Georgia system. Because of this deci- 

| sion, it is not necessary for us to determine 

| whether the district court was right or 

\wrong in its faulting of the Baldus study} 

“The district court undertook an extensive 

review of the research presented. It re- 

ceived, analyzed and dealt with the complex 

statistics. The district court is to be com- 

mended for its outstanding endeavor in the 

handling of the detailed aspects of this 

case, particularly in light of the consistent 

being made in several cases 

/Eny decisio 
tify | 

\ 

SH 

(5th Cir.1978), 

standard of re 

based on a highly comp 

[18] Findings of fact are reviewed un- 

der_the clearly erroneous standard which 

the Supreme Court has defined as: ‘(al 

finding is ‘clearly erroneous’ when al- 

though there is evidence to support it, the 

reviewing court on the entire evidence is 

left with the definite and firm conviction 

that a mistake has been committed.” 

United States v. United States Gypsum 

Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 

L.Ed. 746 (1948). 

[19] Whether a dispar 

flects an intent to discriminate 1s 

mate fact which must 

IV 96 

the clearly erroneous standard. Pullman- : 

Standard v. Swint, 456 U.S. 273, 102 S.Ct. 

1781, 72 L.Ed.2d 66 (1982). In Pullman, 

the Supreme Court said that Fed .R.Civ.P. 

52(a)   
  

  

 



fables. We hold in this 

e statistical results are 

e evidence fails to chal- 

he constitutionality of 

Because of this deci- 

ary for us to determine 
bt court was right or 

g of the Baldus study. 

undertook an extensive 

hirch presented. It re- 

dealt with the complex 

ict court is to be com- 

anding endeavor in the 

ptailed aspects of this 

light of the consistent *? ey 
nade in several cases 

s study. Any decision 

he Baldus study justify 

pf would have to deal 

rt’s findings as to the 

uch as social science 

sed by appellate courts 

uller v. Oregon, 208 

RB S.Ct. 324, 325-26, 52 

d has been tested like 

nce at trial, see Spink- 

t, 578 F.2d 582, 612-13 

is a question as to the 

bf a trial court’s finding 

pmplex statistical study. 

fact are reviewed un- 

neous standard which 

has defined as: “[a] 

erroneous’ when al- 

Hence to support it, the 

the entire evidence is 

te and firm conviction 

as been committed.” 

nited States Gypsum 

5, 68 S.Ct. 525, 542, 92 

disparate impact re- 

discriminate is an ulti- 

ust be reviewed under 

s standard. Pullman- 

456 U.S. 273, 102 S.Ct. 

5 (1982). In Pullman, 

said that Fed.R.Civ.P. 

  

  > a 

McCLESKEY v. KEMP 895 
Cite as 753 F.2d 877 (1985) 

does not make exceptions or purport to 

exclude certain categories of factual find- 
ings from the obligation of a court of 
appeals to accept a district court's find- 

ings unless clearly erroneous. It does 

not divide facts into categories; in partic- 

ular, it does not divide findings of fact 

into those that deal with ‘ultimate’ and 

those that deal with ‘subsidiary’ facts. 

456 U.S. at 287, 102 S.Ct. at 1789. 

There would seem to be two levels of 

;¢= findings based on statistical evidence that 

I 

Vv Le 

must be reviewed: (first) the finding _con- 
cerning the validify of the study itself, and 

Second the finding of ultimate fact based 
upon the circumstantial evidence revealed 

by the study, if valid. 

, The district court here found the study 

0d “li “invalid. The court found the statistics of 

{/, the study to be particularly troublesome in 

the areas of the data base, the models and 

the relationship between the independent 

variables. McCleskey v. Zant, 580 F.Supp. 

338, 379 (N.D.Ga.1984). Vie_prefermit.s 
review of this finding concerning the validi- 
fy of the study itself( The district court 
went on to hold thatfeven tf=the Statistics} 

did validly reflect the Georgia system, the | 

ultimate fact of intent to discriminate was | 

not proven. We review this finding.offact | 

by assuming the validity "ofthe Stidy and | 
Test our holding on the decision thal the ) 

study, even if valid, not only supports the § 

district judge's decision under the clearly | 

it. | : 

| Sufficiency of. Baldus Study | 

McCleskey argues that, although the 

post-Furman statute in Georgia now yields 

more predictable results, the race of the 

victim is a significant, but of course imper- 

missible, factor which acegunts for the im- 

position of the death penalty in many cases. 

He supports this argument with the sophis- 

ticated Baldus statistical study that, after 

controlling for the legitimate factors that 

might rationally explain the imposition of 

the penalty, purportedly reveals significant 

race-of-the-victim influence in the system; 

i.e., all other things being equal, white 

victim crimes are more likely to result in 

J discussion, may be helpful. 

erroneous standard of review, pi 
: uo” 

the penalty. Because the Constitution pro- 

hibits the consideration of racial factors as 

justification for the penalty, McCleskey as- 
serts that the discernible racial influence 

on sentencing renders the operation of the 

Georgia system infirm. 

In addition, McCleskey asserts that the 

race-of-the-victim influence on the system 

is particularly significant in the range of 

cases involving intermediate levels of ag- 

gravation (mid-range aggravation cases). 

He argues that because his case fell withip 
that range, he has established that imper- 
missible racial considerations operated in 

his_case. 

We assume without deciding that the 

Baldus study is sufficient to show what it 

purports to reveal as to the application of 

the Georgia death penalty. ~Baldus con: WH A 
cluded that his study showed that system- {+f 
atic and substantial disparities existed in 

the penalties imposed upon homicide de- 

fendants in Gegrgia based on race of the 

homicide victin¥*that the disparities existed 

at a Tess substantial rate in death sentenc- 

ing based on race of defendants, and®that 

the Tactors of race of the victim and de- 

fendant were at work in Fulton County. 

A general comment about the limitations 

on what the Baldus study purports to 

show, although covered in the subsequent 

| study statistical evidence does not purport 

to show that McCleskey was sentenced to 

death because of either his race or the race 

of his victim. It only shows that in a group 

involving blacks and whites, .all of whose 

cases ‘are virtually the same, there would 

be more blacks receiving the death penalty 

than whites and more murderers of whites 

receiving the death penalty than murderers 

of blacks. The statisticians’ “best guess” 

is that race was a factor in those cases and 
has a role in sentencing structure in Geor- 

gia. These general statements about the 

Tesults are insufficient to make a Tegal = 
determination. 

by the research. 

Accepting the Baldus figures, but not the 

general conclusion, as accurately reflecting 

An analysis must be made / 

as to how much disparity is actually shown J | 

A } 

The Baldus 2 

Ih i 
R 

[® L ad  



896 
the Georgia experience, the statistics are 

inadequate to entitle MoCloskey to relief on 

his constitutional claim. 

The Georgia-based retrospective study 

consisted of a stratified random sample of { 

1,066 cases of individuals indicted for mur- 

der-death, murder-life and voluntary man- 

slaughter who were arrested between 

March 28, 1973 and December 31, 1978. 

The data were compiled from a 4l1-page 

questionnaire and consisted of more than 

500,000 entries. Through complex statisti- 

cal analysis, Baldus examined relationships 

between the dependent variable, death-sen- 

tencing rate, and independent variables, 

nine aggravating : and 75 mitigating factors, 

while controlling for background factors. \. 

In 10% of the cases a penalty trial was 

held, and in 5% of the cases defendants 

were sentenced to death. 

The study subjects the Georgia data to a 

multitude of statistical analyses, and under 

each method there is. 2 statistically Signi 

cant race-of- the-victim effect operating 

Statewide. It is more difficult, however, to 

ascertain thE magnitude ofthe eTiect dem- 

on&trated by the Baldus study. “The _ sim- 

ple, unadjusted figures show that Tat death 

sentences were imposed in 11% of the white 

victim cases potentially” “eligible. Tor_the 

death penalty, and in1% of the eligible 
black victim cases. After controlling for 

f various Tegitimate factors that could ex- 

( plain the differential, Baldus still concluded 

\ that there was a significant race-of-the-vic- 

tim effect. The result of Baldus’ most 

conclusive model, on which McCleskey pri- 

marily relies, “showed. aneffect of 06, Signi 

fying that on average a white victim crime 

is 6% more likely to result in the sentence 

than a comparable black victim crime. Bal- 

dus also provided tables that showed the 

race-of-the-victim effect to be most signifi- 

cant in cases involving intermediate levels 

of aggravation. In these cases, on aver- 

crimes. 

None of the figures mentioned above is a 

definitive quantification of the influence of 

753 FEDERAL REPORTER, 2d SERIES 

the victim's race on the overall likelihood of 

the death penalty in a given case. Never- 

theless, the figures all serve to enlighten 

us somewhat on how the system operates. 

he 6% average figure is a composite of all } 

| cases and contains both low aggravation ® 

cases, where the penalty is almost never rove 

imposed regardless of the victim's race, 

and high aggravation cases, where both 

white and black victim crimes are likely to 

result in the penalty. When this figure is 

related to tables that classify cases accord- 

ing to the level of aggravation, the 6% 

average figure is properly seen _as_an 

aggregate containing both cases in which 

race of the victim is a discernible factor 

and those in which it is not, 

McCleskey’s evidence, and the evidence 

presented by the state, also showed that 

the race-of-the- victim factor diminishes as , 

more variables are added to the’ model. 

For example, the bottom line figure was 

17% in the very simple models, dropped to 

6% in the 230-variable model, and finally 

fell to 4% when the final 20 variables were 

added and the effect of Georgia Supreme 

Court review was considered. 

The statistics are also enlightening on 

the overall operation of the legitimate fac- 

tors supporting the death sentence. 

al System, in which high aggravation cases 

were more likely to result in the death 

sentence than low aggravation cases. As 

one would expect in a rational system, fac- 

tors such as torture and multiple victims 

greatly increased the likelihood of receiving 

the penalty. 

There are important dimensions that the 

statistics cannot reveal. Baldus testified 

that the Godrgie death penalty system is 

no single leh or op af YEN) deter 

mines the outcome of a given case. No 
EE = PAH. A 

[single petitioner could, on the basis of 

age, ‘white victim crimes were ShOWILto he | 

20% more Tikely to result in the death pen- 

alty ‘than equally aggravated black victim | 

these statistics alone, establish that he re- 

ceived the death sentence because, and 

Ht gd; 

Ad 

The confi A 

Baldus _study revealed an essentially ration- fn 0d 

Plo 

\ only because, his victim was white J Tory 

“rte midrange of tases, where the race- 

of-the-victim influence is said to be strong, 

legitimate factors justifying the penalty 

    
{i 

   



8 
e overall likelihood of 

a given case. Never- 

all serve to enlighten 

the system operates. 

e is a composite of all 

both low aggravation 
nalty is almost never 

of the victim’s race, 
bn cases, where both 

m crimes are likely to 

When this figure is 

| classify cases accord- 

aggravation, the 6% 

properly seen as an 

k both cases in which 

a discernible factor 

L is not. 

nce, and the evidence 

hte, also showed that 

factor diminishes as 

added to the model. 

bttom line figure was 

ble models, dropped to 

ple model, and finally ;u ° ; 
inal 20 variables were 

EL of Georgia Supreme 

hsidered. 

also enlightening on 

of the legitimate fac- 

death sentence. The 

d an essentially ration- 

igh aggravation cases 

b result in the death 

gravation cases. As 

rational system, fac- 

and multiple victims 

likelihood of receiving 

it dimensions that the 

eal. Baldus testified 

th penalty system is 

ated process in which 

roup of factors deter- 

f a given case. No 

ild, on the basis of 

, establish that he re- 

bntence because, and 

tim was white. Even 

bases, where the race- 

e is gad to be strong, 

hist the penalty 

  
  

McCLESKEY v. KEMP 897 
Cite as 753 F.2d 877 (1985) 

are, by the very definition of the mid- 

range, present in each case. 

The statistics show there is a race-of-the- 

victim relationship with the imposition of 

the death sentence discernible in enough 

cases to be statistically significant in the 

system as a whole. The magnitude cannot 

be called determinative in any given case. 

The evidence in the Baldus study seems 

to support the Georgia death penalty sys- 

tem as one operating in a rational manner. 

Although no single factor, or combination 

of factors, will irrefutably lead to the death 

sentence in every case, the system in opera- 

tion follows the pattern the legislature in- 

tended, which the Supreme Court}found 

constitutional in Gregg, and sorts ouf cases 

according to levels of aggravatign, as 

gauged by legitimate factors The funda-} 
ental Eighth Amendment concern of Fur- | Florida study, rather than its bottom line. 

man, as discussed in Gregg, which states 4 

that “there is no meaningful basis for dis- 

tinguishing the few cases in which [the 

death sentence] is imposed from the many 

in which it is not” does not accurately 

describe the operation of the Georgia stat- 

aie, 428 U.S. at 188, 96 S.Ct. at 2932. 

"[20] Laking.the.62 botiom line revealed 

in the Raldus figures as true, this figure is 

not sufficient to overcome the presumption 

that the statute is operating in a constitu- 
tional manner. In any discretionary Sys- 
tem, some imprecision must be tolerated, 

and the Baldus study is simply insufficient 

to support a ruling, in the context of a 

statute that is operating much as intended, 

that racial factors are playing a role in the 

outcome sufficient to render the system as 

a whole arbitrary and capricious. 

This conclusion is _supported, and.possi- 
bly even “compelled. by recent Supreme 

Court opinions in Sullivan v. Wainwright, 
— U.S. —, 104 SCL. 450, 78 L.Ed.2d 210 
(1983) denvine stay of execution to allow 

evidentiary hearing on Eighth Amendment 

claim supported by statistics); Wainwright 

v. Adams, — U.S. , 104 S.Ct. 2183, 80 

L.Ed.2d 809 (1984) (vacating stay); and 
Wainwright v. Ford, — U.S. —, 104 

S.Ct. 3498, 82 L.EQ2d 911 (1984) (denying 
state’s application to vacate stay on other 

grounds). A plurality of the Court in Ford 

definitively stated that it had held “in two 

prior cases that the statistical evidence re- 

lied upon by Ford to support his claim of 

discrimination was not sufficient to raise a 

substantial ground upon which relief might" 

be granted.” Id. at —, 104 S.Ct. at 3499, 

82 L.Ed.2d at 912 (citing Sullivan and Ad- 

ams). The petitioners in Sullivan, Adams, 
and Ford all relied on the study by Gross 
and Mauro of the Florida death penalty sys- 

tem. The bottom line figure in the Gross 

and Mauro study indicated a race-of- the-vic- 

tim effect, quantified by a “death odds mul- 

tiplier,” of about 4.8 to 1. Using a similar 

methodology, Baldus obtained a death odds 
multiplier of 4.3 to 1 in Georgia, 

It is of course possible that the Supreme 

Court was rejecting the methodology of the 

It is true that the methodology of the Bal- 

dus study is superior. The posture of the 

Florida cases, however, persuades this 

Court ‘that the Supreme Court was not 

relying on inadequacies in the methodology 

of the Florida study. The issue in Sulli- 

van, Adams, and Ford was whether the NA ARLE 

petitioner’s proffer had raised a substantial 

ground sufficient to warrant an evidentiary @J% affect . 
h Ps - 

hd v hearing. In that context, it is reasongble | | ¥' 

to suppose that the Supreme Court looked * 1 ~y 
at the bottom line indication of racial effect 

and held that it simply was. insufficient to 

state a claim. A contrary assumption, that 

the Supreme Court analyzed the extremely 

complicated Gross and Mauro study and 

rejected it on methodological grounds. is 

much less reasonable. — 

Thus, assuming that the Supreme Court § 

in Sullivan, Adams and Ford found the § 

bottom line in the Gross and Mauro study § 

insufficient to raise a constitutional claim, § 

we would be compelled to reach the same 

result in analyzing the sufficiency of the § 

comparable bottom line in the Baldus study 
— on which McCleskey relies. __ 

McCleskey’s argument about the height- >» 
ened influence of the race-of-the-victim fac- 

tor in the mid-range of cases requires a 

somewhat different analysis. McCleskey’s 

case falls within the range of cases involv- 

ry 

sok p 4 y) 
§ 4 02  



898 

ing intermediate levels of aggravation. 

The Baldus statistical study tended to show 

that the race-of-the-victim relationship to 

sentencing outcome was greater in these 

cases than in cases involving very low or 

very high levels of aggravation. 

The race-of-the-victim effect increases 

the likelihood of the death penalty by ap- 

proximately 90% in the mid-range of cases. 

Some analysis of this 20% figure is appro- 

priate. 

The 20% figure in this case is not analo- 

gous 10 a 1igure —lecimg.ihe percentage 

disparity in a jury composition case. Such 

a Tigure represents the actual disparity 

between the number of minority persons on 

the jury venire and the number of such 

persons in the population. In contrast, the 

20% disparity in this case does not purport 

to be an actual disparity. Rather, the fig- 

ure reflects that the variables included in 

the study do not adequately explain the 

20% disparity and that the statisticians cap 

explain it only Dy assuming the racial ef- 

fect. More importantly, Baldus did not tes 

tify that he found statistical significance in 

the 20% disparity figure for mid-range 

Gases, and he did not adequately explain 

the rationale of his definilion, of the mid; 

range ol cases) His testimony leaves this 

Court unpersuaded that there is a rational 

{ly classified, well-defined class of cases in 

which it can be demonstrated that a race 

i | of-the-victim effect is operating with a 

\ magnitude approximating 20%. 

[21] Assuming arguendo, however, 

that the 207 disparity is an accurate fig- 

ure, itis _apparent-that Such a. dISparity 

only in the mid-range cases, and.not in. the, 

system as a whole, cannot provide the basis 

for a systemwide challenge, As previously 

discussed, the system as a whole is operat 

ing in a rational manner, and not in a 

manner that can fairly be labeled arbitrary 

» or capricious. A valid system challenge 

cannot be made only against the mid-range 

of cases. Baldus did not purport to define 

the mid-range of cases; nor 1s such a deli 

nition possible. It is simply not satisfac- 

tory to say that the racial effect operates in 

aggravation. 

|death sentence statutes were 

753 FEDERAL REPORTER, 2d SERIES 

that the death 

“close cases.” 
“close cases” and therefore 

penalty will be set aside in 

[22] As discussed previously, the statis- 

tics cannot show that the race-of-the-victim 

factor operated in a given case, even in the 

mid-range. Rather, the statistics show 

that, on average, the race-of-the-victim fac- 

tor was more likely to affect the outcome 

in mid-range cases than in those cases at 

the high and low ends of the spectrum of 

The statistics alone are in- 

sufficient to show that McCleskey's sen- 

tence was determined by the TICE of his 

victim, Qr_even that the race of his victim 

contributed to the imposition of the penalty 

in his case. 

McCleskey’s petition does not surmount 

the threshold burden of stating a claim on 

this issue. Aside from 

Ris case. 

[Conclusion | 

The Supreme Court has held that to be 

constitutional the sentencer in death sen- 

tence cases must have some measure of 

discretion. Gregg v. Georgia, 428 U.S. 153, 

\ 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Prof- 

fitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 

The mandatory 

declared un- 

constitutional. Woodson v. North Caroli- 

na, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 

944 (1976); Roberts v. Louisiana, 428 U.S. 

49 LEd2d 913 (1976). 

395, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). J { 

The very exercise of discretion means l 

that persons exercising discretion may J 

reach different results from exact dupli- ) 

cates. Assuming each result is within the 

range of discretion, all are correct in the 

eyes of the law. It would not make sense 

for the system to require the exercise of 

discretion in order to be facially constitu- 

tional, and at the same time hold a system 

unconstitutional in application where that 

discretion achieved different results for 

what appear to be exact duplicates, absent 

the state showing the reasons for the dif- 

ference. The discretion is narrow, focused 

the statistics, he) f=fce 

presents literally evidence that might Pgs A 

{end to support a conclusion that the race | 4 

of McCleskey's victim in any way motivat- | re 

ed the jury to impose the death sentence in 1 »1 

   



    ‘QP 
therefore that the death 

ot aside in “close cases.” 

    
hat the race-of-the-victim 

| a given case, even in the 

er, the statistics show 

the race-of-the-victim fac- 

bly to affect the outcome 

s than in those cases at 

ends of the spectrum of 

e statistics alone are in- 

; that McCleskey's sen- 

ined by the race of his 

at the race of his victim 

imposition of the penalty 

    

     

   

     

     

   
   

    
     

      
    

tition does not surmount 

den of stating a claim on 

from the statistics, he 

no evidence that might 

conclusion that the race 

fctim in any way motivat- 
bose the death sentence in 

   

  

    
   
     

    
   

  

    
   ourt has held that to be 

sentencer in death sen- 

have some measure of 

bh v. Georgia, 428 U.S. 153, 

L.Ed.2d 859 (1976); Prof 

8 U.S. 242, 96 S.Ct. 2960, 

(1976). The mandatory 
atutes were declared un- 

‘oodson v. North Caroli- 

96 S.Ct. 2978, 49 L.Ed.2d 

ts v. Louisiana, 428 U.S. 

1, 49 L.Ed.2d 974 (1976). 

ise of discretion means 

ercising discretion may 

esults from exact dupli- 

each result is within the 

pn, all are correct in the 

It would not make sense 

0 require the exercise of 

br to be facially constitu- 

same time hold a system 

n application where that 

ed different results for 

e exact duplicates, absent 

r the reasons for the dif- 

retion is narrow, focused 

    

    

   

   

sed previously, the statis- Yu -— 
J 

UR TEAL 

{ from constitutional considerations. 

| tors. 

  

and directed, but still there is a measure of 

discretion. 

Lhe. Baldus..appreach, however, would 
take the cases with different results on 

what are contended to be duplicate facts, 
where the differences could not be other- 

wise explained, and conclude that the dif- 

ferent result was based on race alone. 

("From a legal perspective, petitioner would 
| argue that since the difference is not ex- 

| plained by facts which the social scientist 

| thinks satisfactory to explain the differ- 
| ences, there is a prima facie case that the 
| difference was based on unconstitutional 

{ factors, and the burden would shift to the 

state to prove the difference in results 

This 
approach ignores the realities. It not only 

| ignores quantitative differences in cases: 

looks, age, personality, education, profes- 

| sion, job, clothes, demeanor, and remorse, 

| Just to name a few, but it is incapable of 

measuring qualitative differences of such 
things as aggravating and mitigating fac- 

There are, in fact, no exact dupli- 

cates in capital crimes and capital defend- 

| ants. The type of research submitted here 

tends to show which of the directed factors 

| were effective, but is of restricted use in 

| showing what undirected factors control 

| the exercise of constitutionally required 
discretion. 

Tt was recognized when Gregg was decid- 

ed that the capital justice system would not 

be perfect, but that it need not be perfect 

in order to be constitutional. Justice White 
said: 

Petitioner has argued, in effect, that no 

matter how effective the death penalty 

may be as a punishment, government, 

created and run as it must be by humans, 

1s inevitably incompetent to administer it. 

This cannot be accepted as a proposition 

of constitutional law. Imposition of the 

death penalty is surely an awesome re- 

sponsibility for any system of justice and 

those who participate in it. Mistakes will 

be made and discriminations will occur 

which will be difficult to explain. How- 

ever, one of society’s most basic tasks is 

that of protecting the lives of its citizens 

McCLESKEY v. KEMP 
Cite as 753 F.2d 877 (1985) 

and one of the most basic ways in which 
it achieves the task is through criminal 

laws against murder. 

Gregg v. Georgia, 428 U.S. 153, 226, 96 

S.Ct. 2909, 2949, 49 L.Ed.2d 859 (1976) 
(White, J., concurring). 

The plurality opinion of the Gregg Court. : 
noted: 

The petitioner's argument is nothing 

more than a veiled contention that Fur- 

- man indirectly outlawed capital punish- 

ment by placing totally unrealistic condi- 

tions on its use. In order to repair the 

alleged defects pointed to by the petition- 

er, it would be necessary to require that 

prosecuting authorities charge a capital 

offense whenever arguably there had 

been a capital murder and that they re- 

fuse to plea bargain with the defendant. 

If a jury refused to convict even though 

the evidence supported the charge, its 

verdict would have to be reversed and a 

verdict of guilty entered or a new trial 

ordered, since the discretionary act of 

jury nullification would not be permitted. 

Finally, acts of executive clemency would 

have to be prohibited. Such a system, of 

course, would be totally alien to our no- 

tions of criminal justice. 

Id. at 199 n. 50, 96 S.Ct. at 2937 n. 50 

/ (opinion of Stewart, Powell, and Stevens, 

JJ.) 

Viewed brobdly. § it would seem : that the | 

statistical evidence presented here, assum- | 
ing its validity, confirms rather than con- } 

In a state where past | demns the system. 

discrimination is well documented, the 

study showed no discrimination as to the 

race of the defendant. The marginal dis- 

parity based on the race oF the Viet Tends 
to_support the state’s contention that the 

system is working far differently from the 

one which Furman condemned. In pre- 

Furman days, there was no rhyme or rea- 

son as to who got the death penalty and 

who did not. But now, in the vast majority 

of cases, the reasons for a difference are 

well documented. That they are not so 
clear i in a small percentage of the cases is 

no reason to declare the enure system un- 
constitutional. 

899 

  

     

      

      

       

  

i 

3 
5 
4 

= 

     

   
   
    

    

    

    

  

       

     
       



900 
The district court properly rejected this 

aspect of McCleskey’s claim. 

INEFFECTIVE ASSISTANCE 
OF COUNSEL 

McCleskey contends his trial counsel ren- 

dered ineffective assistance at both 

guilt/innocence and penalty phases of his 

trial in violation of the Sixth Amendment. 

[23,24] Although a defendant is consti- 

tutionally entitled to reasonably effective 

assistance from his attorney, we hold that 

McCleskey has not shown he was preju- 

diced by the claimed defaults in his coun- 

sel’s performance. Ineffective assistance 

warrants reversal of a conviction only 

when there is a reasonable probability that 

the attorney’s errors altered the outcome 

of the proceeding. A court may decide an 

ineffectiveness claim on the ground of lack 

of prejudice without considering the rea- 

sonableness of the attorney’s performance. 

Strickland v. Washington, — U.S. —, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 

As to the guilt phase of his trial, McCles- 

key claims that his attorney failed to: (1) 

interview the prisoner who testified that 

McCleskey gave a jail house confession; (2) 

interview and subpoena as defense witness- 

es the victims of the Dixie Furniture Store ( 

robbery; and (3) interview the State's bal- 

listics expert. 

[25] McCleskey demonstrates no preju- 

dice caused by his counsel's failure to inter- 

view Offie Evans. We have held there was 

no reasonable likelificod that the disclosure 

ofthe detective’s statement to Offie Evans 

would have affected the verdict. There is 

then no “reasonable probability” that the 

attorney’s failure to discover this evidence 

affected the verdict. 

[26] As to the robbery victims, McCles- 

key does not contend that an in-person 

interview would have revealed something 

their statements did not. He had an oppor- 

tunity to cross-examine several of the rob- 

bery victims and investigating officers at 

McCleskey’s preliminary hearing. The rea- 

sonableness of the attorney’s investigation 

753 FEDERAL REPORTER, 2d SERIES 

need not be examined because there wag 
- obviously no prejudice. 

[27] The question is whether it was un. 

reasonable not to subpoena the robbery 

victims as defense witnesses. McCleskey’s 
attorney relied primarily on an alibi de- 

fense at trial. To establish this defense, 

the attorney put McCleskey on the stand. 

He also called several witnesses in an at- 

tempt to discredit a Dixie Furniture Store 

employee’s identification of McCleskey and 

to show that McCleskey’s confession was 

involuntary. It would have undermined his 

defense if the attorney had called witness- 

es to testify as to which robber did the 

shooting. No prejudice can be shown by 

failing to subpoena witnesses as a reason- 

able strategy decision. 

[28] McCleskey’s attorney could have 

reasonably prepared to cross-examine the 

State’s ballistics expert by reading the ex- 
pert’s report. No in-person interview was 
necessary. See Washington v. Watkins, 

655 F.2d 1346, 1358 (5th Cir.1981), cert. 

denied, 456 U.S. 949, 102 S.Ct. 2021, 72 

L.Ed.2d 474 (1982). The report was in the : 

prosecutor's file which the attorney re- 

viewed and no contention has been made 

that he did not read it. 

As to the sentencing phase of his trial, % 

McCleskey asserts his attorney failed to | 

\ investigate and find character witnesses 

| and did not object to the State’s introduc- 

tion of prior convictions which had been set 

aside. 

[29] No character witnesses testified 

for McCleskey at his trial. At the State 

habeas corpus hearing McCleskey’s attor- 

ney testified he talked with both McClés- 

key and his sister about potential character 

witnesses. Theysuggested no possibilities. 

The sister( refused )to testify and advised 

the attorney that their mother was too sick 

ta travel to the site of the trial. McCleskey 

and his sister took the stand at the State 

habeas corpus hearing and told conflicting 

stories. It is clear from the state court’s 

opinion that it believed the attorney: 

Despite the conflicting evidence on his 

point, ... the Court is authorized in its    



ned because there was 

ice. 

pn is whether it was un- 

subpoena the robbery 
itnesses. McCleskey’s 

marily on an alibi de- 
establish this defense, 
cCleskey on the stand. 

bral witnesses in an at- 

h Dixie Furniture Store 

ation of McCleskey and 

eskey’s confession was 
1d have undermined his 

ey had called witness- 
which robber did the 

dice can be shown by 
witnesses as a reason- 

on. 

s attorney could have 

ld to cross-examine the 
pert by reading the ex- 
in-person interview was 

lashington v. Watkins, 

58 (5th Cir.1981), cert. 

p49, 102 S.Ct. 2021, 72 : 

The report was in the 

hich the attorney re- 

htention has been made 

d it. 

icing phase of his trial, 

his attorney failed to 

nd character witnesses 

to the State's introduc- 

tions which had been set 

ter witnesses testified 

his trial. At the State 

ring McCleskey’s attor- 

lked with both McCles- 

tbout potential character 

ggested no possibilities. 

to testify and advised 

heir mother was too sick 

of the trial. McCleskey 

the stand at the State 

ring and told conflicting 

from the state court's 
ved the attorney: 

flicting evidence on his 

burt is authorized in its 

R 

  
  

-McCLESKEY v. KEMP 901 
Cite as 753 F.2d 877 (1985) 

role as fact finder to conclude that Coun- 
sel made all inquiries necessary to 
present an adequate defense during the 
sentencing phase. Indeed, Counsel could 

not present evidence that did not exist. 

fATthough this “finding of fact” is stated in 

[ terms of the ultimate legal conclusion, im- 

| plicit in that conclusion is the historical 

Tinding that the attorney’s testimony was 
credible. See Paxton v. Jarvis, 735 F.2d 
1306, 1308 (11th Cir.1984); Cox v. Mont- 
gomery, 718 F.2d 1036 (11th Cir.1983). 
This finding of fact is entitled to a pre- 

sumption of correctness, Based on the 

facts as testified to by the attorney, he 

conducted a reasonable investigation for 
character witnesses. 

[30] As evidence of an aggravating cir- 

cumstance the prosecutor introduced three 

convictions resulting in life sentences, all 

of which had been set aside on Fourth 

Amendment grounds. This evidence could 

not result in any undue prejudice, because 

although the convictions were overturned, 

the charges were not dropped and McCles- 

key pleaded guilty and received sentences 

of 18 years. The reduction in sentence was 
disclosed at trial. 

The district court properly denied relief 

on the ineffectiveness of counsel claim. 

DEATH-ORIENTED JURY 

[31] Petitioner claims the district court 

improperly upheld the exclusion of jurors 

who were adamantly opposed to capital 

punishment. According to petitioner, this 

exclusion violated his right to be tried by 

an impartial and unbiased jury drawn from 

a representative cross-section of his com- 

munity. In support of this proposition, pe- 

titioner cites two district court opinions 

from outside circuits. Grigsby v. Mabry, 

569 F.Supp. 1273 (E.D.Ark.1983), hearing 

en banc ordered, No. 83-2113 E.A. (8th 

Cir. Nov. 8, 1983), argued (March 15, 1984) 

and Keeten v. Garrison, 578 F.Supp. 1164 

(W.D.N.C.1984), rev'd, 742 F.2d 129 (4th 

Cir.1984). Whatever the merits of those 

opinions, they are not controlling authority 
for this Court. 

Because both jurors indicated they would 

‘not under -any circumstances consider im- 

posing the death penalty, they were proper- 

ly excluded under Witherspoon v. Illinois, 

391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 

(1968). See also Boulden v. Holman, 394 

U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 

(1969). Their exclusion did not violate peti- 

tioner’s Sixth Amendment rights to an im- 

partial, community-representative jury. 

Smith v. Balkcom, 660 F.2d 573, 582-83 

(6th Cir. Unit B 1981), cert. denied, 459 

US. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 

(1982); Spinkellink v. Wainwright, 578 

F.2d 582, 593-94 (5th Cir.1978), cert. de- 

nied, 440 U.S. 976, 99 S.Ct. 1548, 59 
L.Ed.2d 796 (1979). 

THE SANDSTROM ISSUE 

The district court rejected McCleskey’s 

claim that the trial court’s instructions to 

the jury on the issue of intent deprived him 

of due process by shifting from the prose- 

cution to the defense the burden of proving 

beyond a reasonable doubt each essential 

element of the crimes for which he was 

tried. Such burden-shifting is unconstitu- 

tional under Sandstrom v. Montana, 442 

US. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 
(1979). 

McCleskey objects to the following por- 

tion of the trial courls instruction to 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. 

In its analysis of whether this instruction 

was unconstitutional under Sandstrom, 

the district court examined two recent pan- 

el opinions of this Circuit, Franklin ov. 

Francis, 720 F.2d 1206 (11th Cir.1983), 

cert. granted, — U.S. —, 104 S.Ct. 2677, 

81 L.Ed.2d 873 (1984), and Tucker v. Fran- 

cis, 723 F.2d 1504 (11th Cir.), on pet. for 

reh’g and reh’g en banc, 723 F.2d 1518 

(11th Cir.1984). Even though the jury in-  



902 it 753 FEDERAL REPORTER, 2d SERIES 

structions in the two cases were identical, 

Franklin held that the language created a 

mandatory rebuttable persumption viola- 

tive of Sandstrom while Tucker held that 

it created no more than a permissive infer- 

ence and did not violate Sandstrom. Not- 

ing that the challenged portion of the in- 

struction. used at _McCleskey’s trial was 

“virtually identical” to the corresponding 

portions of the charges in Franklin and 

Tucker, the district court elected to follow 

Tucker as this Court’s most recent pro- 

nounicement on the issue, and it held that 

Sandstrom was not violated by the charge 

on intent. 

Since the district court’s decision, the en 

banc court has heard argument in several 

cases in an effort to resolve the constitu- 

tionality of potentially burden-shifting in- 

structions identical to the one at issue here. 

Davis v. Zant, 721 F.2d 1478 (11th Cir. 

1983), on pet. for reh’g and reh’g en banc, 

728 F.2d 492 (11th Cir.1984); Drake v. 

Francis, 727 F.2d 990 (11th Cir.), on pet. 

for reh’q and for rek’g en banc, 127 F.2d 

1003 (11th Cir.1984); Tucker v. Francis, 

723 F.2d 1504 (11th Cir.), on pet. for reh’g 

and rek'g en banc, 723 F.2d 1518 (11th 

Cir.1984). The United States Supreme 

Court has heard oral argument in Frank- 

lin v. Francis, 53 U.S.L.W. 3373 (U.S. Nov. 

20, 1984) [No. 83-1590]. However these 

cases are decided, for the purpose of this 

decision, we assume here that the intent 

instruction In this case violated Sandstrom 

and _proceed_toihe issue of whether that 

error was harmless) ; 

The Supreme Court requires that “before 

a federal constitutional error can be harm- 

less, the court must be able to declare a 

belief that it was harmless beyond a rea- 

sonable doubt.” Chapman v. California, 

386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 

L.Ed.2d 705 (1967). More recently, the Su- 

preme Court has divided over the issue of 

whether the doctrine of harmless error is 

ever applicable to burden-shifting presump- 

tions violative of Sandstrom. Reasoning 

that “[a]n erroneous presumption on a dis- 

puted element of the crime renders irrele- 

vant the evidence on the issue because the 

jury may have relied upon the presumption 

rather than.upon that evidence,” a four-jus- 

tice plurality held that one of the two tests 

for harmless error employed by this Cir- 

cuit—whether the evidence of guilt is so 

overwhelming that the erroneous instrue- 

tion could not have contributed to the 

jury’s verdict—is inappropriate. Connecti- 

cut v. Johnson, 460 U.S. 73, 85-87, 103 

S.Ct. 969, 976-978, 74 L.Ed.2d 823 (1983). 

The fifth vote to affirm was added by 

Justice Stevens, who concurred on jurisdic 

tional grounds. Id. at 88, 103 S.Ct. at 978 

(Stevens, J., concurring in the judgment). 

Four other justices, however, criticized the 

plurality for adopting an “automatic rever- 

sal” rule for Sandstrom error. Id. at 98, 
103 S.Ct. at 983 (Powell, J., dissenting). 

The Supreme Court has subsequently re- 
viewed another case in which harmless er- 

ror doctrine was applied to a Sandstrom 

violation. The Court split evenly once 

again in affirming without opinion a Sixth 

Circuit decision holding that “the prejudi- 
cial effect of a Sandstrom instruction is 

largely a function of the defense asserted 

at trial.” Engle v. Koehler, 107 F.2d 241, 

246 (6th Cir.1983), aff'd by an equally di- 

vided court, — U.S. —, 104 S.Ct. 1673, 

80 L.Ed.2d 1 (1984) (per curiam). In En- 

gle, the Sixth Circuit distinguished between 

Sandstrom violations where the defendant 

has claimed nonparticipation in the crime 

and those where the defendant has claimed 

lack of mens rea, holding that only the 

latter was so prejudicial as never to consti- 

tute harmless error. Id. Until the Su- 

preme Court makes a controlling decision 

on the harmless error question, we contin- 

ue to apply the standards propounded in 

our earlier cases. 

[32] Since Sandstrom was decided in 

1979, this Circuit has analyzed unconstitu- 

tional burden-shifting instructions to defer- 

mine whether they constituted harmless er- 

ror. See, e.g., Mason v. Balkcom, 663 F.2d 

222. 227 (5th Cir. Unit B 1982). In Lamb v. 

Jernigan, 683 F.2d 1332 (11th Cir.1982), 

cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 

75 L.Ed.2d 496 (1983), the Court identified 

two situations in which an unconstitutional 

burden-shifting instruction might be harm- 

  

  
R
o
p
a
 

o
R
 

= 

 



t evidence,” a four-jus- 

at one of the two tests 

employed by this Cir- 

vidence of guilt is so 

the erroneous instruc- 

e contributed to the 

hppropriate. Commnecti- 

0 U.S. 73, 85-87, 103 

74 L.Ed.2d 823 (1983). 

affirm was added by 

o concurred on jurisdic- 

at 88, 103 S.Ct. at 978 

ing in the judgment). 

however, criticized the 

g an “automatic rever- 
btrom error. Id. at 98, 

Powell, J., dissenting). 

has subsequently re- 

e in which harmless er- 

pplied to a Sandstrom 

hurt split evenly once 

without opinion a Sixth 

Iding that “the prejudi- 
hndstrom instruction is 

of the defense asserted 

Koehler, 707 F.2d 241, 

aff'd by an equally di- 

S. —, 104 S.Ct. 1673, 

) (per curiam). In En- 

hit distinguished between 

bons where the defendant 

hrticipation in the crime 

e defendant has claimed 

. holding that only the 

dicial as never to consti- 

or. Id. Until the Su- 

es a controlling decision 

rror question, we contin- 

standards propounded in 

dstrom was decided in 

has analyzed unconstitu- 

ting instructions to deter- 

; constituted harmless er- 

son v. Balkcom, 669 F.2d 

nit B 1982). In Lamb v. 

2d 1332 (11th Cir.1982), 

U.S. 1024, 103 S.Ct. 1276, 

983), the Court identified 

whi n unconstitutional 

\str 4, might be harm- 

    
  

McCLESKEY v. KEMP 903 
Cite as 753 F.2d 877 (1985) 

less. First Jan erroneous instruction may 

have been harmless if the evidence of guilt 

was so overwhelming that the error could 

not have contributed to the jury’s decision 

to convict. Lamb, 683 F.2d at 1342; Ma- 

son, 669 F.2d at 227. In the case before 

us, the district court based its finding that 

the Sandstrom violation was harmless on 

this ground. This Circuit has decided on 

several occasions that overwhelming evi- 

dence of guilt renders a Sandstrom viola- 
tion harmless. See Jarrell v. Balkcom, 

735 F.2d 1242, 1257 (11th Cir.1984); Brooks 

v. Francis, 716 F.2d 780, 793-94 (11th Cir. 

1983), on pet. for reh’g and for reh'g en 

banc, 7128 F.2d 1358 (11th Cir.1984); Spenc- 

er v. Zant, 715 F.2d 1562, 1578 (11th Cir. 

1983), on pet. for reh’q and for reh’g en 

banc, 729 F.2d 1293 (11th Cir.1984). 

[33]_Second,) the erroneous instruction 

may be harmless where the instruction 

shifts the burden on an element that 1s not 
al issue at trial. Lamb, 683 F.2d at 1342. 

This Circuit has adopted this rationale to 

find a Sandstrom violation harmless. See 

Drake v. Francis, 7127 F.2d 990, 999 (11th 

Cir.), on pet. for reh’q and for reh’g en 

banc, 727 F.2d 1003 (11th Cir.1984); Col- 

lins v. Francis, 728 F.2d 1322, 1330-31 

(11th Cir.1984), pet. for reh’g en banc de- 

nied, 734 F.2d 1481 (11th Cir.1984). There 

is some indication that even the plurality in 

Connecticut v. Johnson would endorse 

this type of harmless error in limited cir- 

cumstances: 

[A] Sandstrom error may be harmless 

if the defendant conceded the issue of 

intent.... In presenting a defense such 

as alibi, insanity, or self-defense, a de- 

fendant may in some cases admit that 

the act alleged by the prosecution was 

intentional, thereby sufficiently reducing 

the likelihood that the jury applied the 

erroneous instruction as to permit the 

appellate court to consider the error 

harmless. 

460 U.S. at 87, 103 S.Ct. at 978 (citations 

omitted). 

Our review of the record reveals that the 
Sandstrom violation _in_this case is_ren- 
dered harmless error under this second 

test. Before discussing whether intent 

was at issue in McCleskey’s trial, however, 

we note that intent is an essential element 

of the crime with which he was charged. _ 
Georgia law provides three essential ele- 

ments to the offense of malice murder: (1) 

a homicide; (2) malice aforethought; and 

(3) unlawfulness. Lamb v. Jernigan, 683 

F.2d at 1336. The “malice” element means. 

the intent to kill in the absence of provoca- 

tion. Id. The erroneous instruction on 

intent, therefore, involved an essential ele- 

ment of the criminal offense charged, and 

the state was required to prove the exist 

ence of that element beyond a reasonable 

doubt. In re Winship, 397 U.S. 358, 364, 

90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). 

The question therefore b&comes whether 

McCleskey conceded the element of intent 

by presenting a defense that admits that 

the act alleged was intentional. 

[34] Of course, a defendant in a crimi- 
nal trial may rely entirely on the presump- 

tion of innocence and the State’s burden of 

proving every element of the crime beyond 

a reasonable doubt. Connecticut v. John- 

son, 460 U.S. at 87 n. 16, 103 S.Ct. at 978 n. 

16. In such a case, determining whether a 
defendant had conceded the issue of intent 
might well be impossible. The record re- 

veals, however, that McCleskey chose not 

to take that course, Rather, he took the 

stand at trial and testified that he was not 
a participant in the Dixie Furniture Store 

robbery which resulted in the killing of 
Otfhcer Schlatt. The end of McCleskey's 
testimony on direct examination summa- 

rizes his alibi defense: 

Q. Were you at the Dixie Furniture 

Store that day? 

No. 

Did you shoot anyone’ 

No, I didn’t. 

Is everything $00 have said the 

truth? 

A. Positive. 

In closing argument, McCleskey’s attorpey 

again stressed his client's alibi defense. 

He concentrated on undermining the credi- 

bility of the eyewitness identifications that  



753 FEDERAL REPORTER, 2d SERIES 

pinpointed McCleskey as the tfiggerman 

and on questioning the motives of the other 
robbery participants who had testified that 

McCleskey had fired the fatal shots. 

McCleskey’s attorney emphasized that 

if Mr. McCleskey was in the front of the 

store and Mr. McCleskey had the silver 
gun and if the silver gun killed the police 

officer, then he would be guilty. But 

that is not the circumstances that have 

been proven. 

Although McCleskey’s attorney's argu- 

ments were consistent with the alibi testi 

mony offered by McCleskey himself, the 

jury chose to disbelieve that testimony and 

rely instead on the testimony of eyewit- 

nesses and thg other Rarticipanis in the 
robbery : a, 

[35,36] We therefore hold that in the 

course of asserting his alibi defense 

McCleskey effectively conceded the issue 

of intent, _thereby rendering the —Sand- 

Strom violation harmless beyond a reason- 

able doubt. In so holding, we do not imply 

that whenever a defendant raises a defense 

of alibi a Sandstrom violation on an intent 

or malice instruction is automatically ren- 

dered harmless error. 

that defendant must specifically argue that 
intent aid motexist-irerder-for-the issue of 

intent to remain before the jury. But 

where the State has presented overwhelm- 

ing evidence of an intentional killing. and 

where the defendant raises a defense of 

nonparticipation in the crime rather than 

lack of mens rea, a Sandstrom violation 
on an intent instruction such as the one at 

issue here is harmless beyond a reasonable 

doubt. See Collins v. Francis, 728 F.2d at 

1331; Engle v. Koehler, 707 F.2d at 246. 

. In this case the officer entered and made 
J it almost to the middle of the store before 

he was shot twice with a .38 caliber Rossi 

revolver. The circumstances of this shoot- 

ing, coupled with McCleskey’s decision to 

rely on an alibi defense, elevate to mere 

speculation any scenario that would create 

a reasonable doubt on the issue of intent. 

The district court properly denied habeas 

corpus relief on this issue. 
= 

Nor do we suggest 

CONCLUSION 

The judgment of the district court jj 

granting the petition for writ of habeas 

corpus is reversed and the petition is here. 
by denied. 

REVERSED and RENDERED. 

TJOFLAT, Circuit Judge, concurring: 

I concur in the court’s opinion, though | 
would approach the question of the consti. 

tutional application of the death penalty in 

Georgia somewhat differently. I would be- 

gin with the established proposition that 

Georgia’s capital sentencing model is facia} 

ly constitutional. It contains the safe- 
guards necessary to prevent arbitrary and 

capricious decision making, including deci- 
sions motivated by the race of the defend- 

ant or the victim. These safeguards are 

present in every stage of a capital murder 

prosecution in Georgia, from the grand 
jury indictment through the execution of 
the death sentence. Some of these safe- 

guards are worth repeating. 

At the indictment stage, the accused can 

insist that the State impanel a grand jury 
that represents a fair cross section of the 

community, as required by the sixth and 

fourteenth amendments, and that the State 

not deny a racial group, in violation of the 

equal protection clause of the fourteenth 

amendment, the right to participate as jur- 

ors. In Georgia this means that a repre- 

sentative portion of blacks will be on the 
grand jury. 

The same safeguards come into play in 

the selection of the accused’s petit jury. In 

addition, the accused can challenge for 

cause any venireman found to harbor a 

racial bias against the accused or his vic 

tim. The accused can peremptorily excuse 

jurors suspected of such bias and, at the 

same time, prevent the prosecutor from 

exercising his peremptory challenges in a 

way that systematically excludes a particu- 

lar class of persons, such as blacks, from 

jury service. See, e.g., Willis v. Zant, 720 
F.2d 1212 (11th Cir.1983), cert. denied, — 

U.S. ——, 104 S.Ct. 3548, 82 L.Ed.2d 851 

(1984).    



S 

CLUSION 

bf the district court in 

jon for writ of habeas 

and the petition is here- 

i RENDERED. 

it Judge, concurring: 

court’s opinion, though I 

e question of the consti 

n of the death penalty in 

differently. I would be- 

ablished proposition that 

kentencing model is facial- 

It contains the safe- 

to prevent arbitrary and 

n making, including deci- 

by the race of the defend- 

These safeguards are 

stage of a capital murder 

eorgia, from the grand 

hrough the execution of 

bce. Some of these safe- 

repeating. 

ent stage, the accused can 

ate impanel a grand jury 

hb fair cross section of the 

equired by the sixth and 

dments, and that the State 

group, in violation of the 

clause of the fourteenth 

right to participate as jur- 

L this means that a repre- 

of blacks will be on the 

eguards come into play in 

the accused's petit jury. In 

ccused can challenge for 

reman found to harbor a 

hst the accused or his vie 

ed can peremptorily excuse 

4 of such bias and, at the 

vent the prosecutor from 

heremptory challenges in a 

atically excludes a particu- 

sons, such as blacks, from 

bee, e.g., Willis v. Zant, 720 

| Cir, 3), cert. denied, — 

S.A 48, 82 L.Ed.2d 851   

I SO OS EW a -.Y 
ASE ys Re rhe pe 

McCLESKEY v. KEMP 905 
Cite as 753 F.2d 877 (1985) 

If the sentencer is the jury, as it is in 
Georgia (the trial judge being bound by the 

jury’s recommendation), it can be instruct- 

ed to put aside racial considerations in 

reaching its sentencing recommendation. 

If the jury recommends the death sentence, 

the accused, on direct appeal to the Georgia 

Supreme Court, can challenge his sentence 

on racial grounds as an independent assign- 

ment of error or in the context of propor- 

tionality review. And, if the court affirms 
his death sentence, he can renew his chal 

lenge in a petition for rehearing or by way 

of collateral attack. 

In assessing the constitutional validity of 

Georgia’s capital sentencing scheme, one 

could argue that the role of the federal 

courts—the Supreme Court on certiorari 

from the Georgia Supreme Court and the 

entire federal judicial system in habeas cor- 

pus review—should be considered. For 

they provide still another layer of safe- 

guards against the arbitrary and capricious 

imposition of the death penalty. 

Petitioner, in attacking his conviction and 

death sentence, makes no claim that either 

was motivated by a racial bias in any stage 
of his criminal prosecution. His claim 

stems solely from what has transpired in 

other homicide prosecutions. To the extent 

that his data consists of cases in which the 

defendant’s conviction and sentence— 

whether a sentence to life imprisonment or 

death—is constitutionally unassailable, the 

data, I would hold, indicates no invidious 

racial discrimination as a matter of law. 

To the extent that the data consists of 

convictions and/or sentences that are con- 

stitutionally infirm, the data is irrelevant. 

In summary, petitioner's data, which shows 

nothing more than disproportionate sen- 

tencing results, is not probative of a racially 

discriminatory motive on the part of any of 

the participants in Georgia's death penalty 

sentencing model—either in petitioner’s or 

any other case. 

1. 1 have not addressed the due process analysis 
employed by the district court because the peti- 

VANCE, Circuit Judge, concurring: 

Although I concur in Judge Roney’s opin- 

jon, I am troubled by its assertion that 

there is “little difference in the proof that 
might be required to prevail” under either 

eighth. amendment or fourteenth amend- 

ment equal protection claims of the kind 

presented here!. According to Furman, 

an eighth amendment inquiry centers on 

the general results of capital sentencing 

systems, and condemns those governed by 

such unpredictable factors as chance, ca- 

price or whim. An equal protection inquiry 

is very different. It centers not on system- 

ic irrationality, but rather the independent 

evil of intentional, invidious discrimination 

against given individuals. 

I am conscious of the dicta in the various 

Furman opinions which note with disap- 
proval the possibility that racial discrimina- 

tion was a factor in the application of the 

death penalty under the Georgia and Texas 

statutes then in effect. To my mind, how- 

ever, such dicta merely indicate the possi- 

bility that a system that permits the exer- 

cise of standardless discretion not only may 

be capricious, but may give play to discrim- 

inatory motives which violate equal protec- 

tion standards as well. Whether a given 

set of facts make out an eighth amendment 

claim of systemic irrationality under Fur 

man is, therefore, a question entirely inde- 

pendent of whether those facts establish 

deliberate discrimination violative of the 

equal protection clause, 

I am able to concur because in neither 

the case before us nor in any of the others 

presently pending would the difference in- 

fluence the outcome. As Judge Roney 

points out, petitioner's statistics are insuffi- 

cient to establish intentional discrimination 

in the capital sentence imposed in his case. 

As to the eighth amendment, I doubt that a 

claim of arbitrariness or caprice is even 

presented, since petitioner’s case is entirely 

devoted to proving that the death penalty is 

being applied in an altogether explicable— 

albeit impermissible—fashion. 

tioner did not rely on it in his brief.  



906 753 FEDERAL REPORTER, 2d SERIES 

Claims such as that of petitioner are now 

“presented with such regularity that we 

may reasonably hope for guidance from the 

Supreme Court by the time my expressed 

concerns are outcome determinative in a 
given case. 

. 

KRAVITCH, @Gircuit Judge, concurring: 

I concur in the majority opinion except as 

to the Giglio issue. In my view, for rea- 

sons stated in Chief Judge Godbold’s dis- 

sent, the facts surrounding Evans. testimo- 
ny did constitute _a_Giglio violation. I 

agree with the majority, however, that any 
error was harmless beyond a reasonable 
doubt. 

I also join Judge Anderson’s special con- 

currence on the “Constitutional Application 

of the Georgia Death Penalty.” 

R. LANIER ANDERSON, III, Circuit 

Judge, concurring with whom KRAVITCH, 

Circuit Judge, joins as to the constitutional 

application of the Georgia Death Statute: 

I join Judge Roney’s opinion for the ma- 

jority, and write separately only to empha- 

size, with respect to the Part entitled “Con- 

stitutional Application of Georgia's Death 

Penalty,” that death is different in kind 

from all other criminal sanctions, Woodson 

v. North Carolina, 428 U.S. 280, 305, 96 

S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). 

Thus, the proof of racial motivation re- 

quired in a death case, whether pursuant to 

an Eighth Amendment theory or an equal 

protection theory, presumably would be 

less strict than that required in civil cases 

or in the criminal justice system generally. 

Constitutional adjudication would tolerate 
less risk that a death sentence was influ- 

enced by race. The Supreme Court's 

Eighth Amendment jurisprudence has es- 

tablished a constitutional supervision over 

the conduct of state death penalty systems 

which is more exacting than that with re- 

spect to the criminal justice system gener- 

ally. Woodson v. North Carolina, id. at 

305, 96 S.Ct. at 2991 (“Because of that 

qualitative difference, there is a corre- 

* I dissent on only the Giglio issue. 1 concur in 

sponding difference in the need for reliabil- 

ity in the determination that death is the 

appropriate punishment.”). There is no 

need in this case, however, to reach out and 

try to define more precisely what evidentia- 

ry showing would be required. Judge Ro- 

ney’s opinion demonstrates with clarity 

why the evidentiary showing in this case is 
insufficient. 

GODBOLD, Chief Judge, dissenting in 
part, and concurring in part, with whom 

JOHNSON, HATCHETT and CLARK, Cir- 

cuit Judges, join as to the dissent on the 

Giglio issue * : ; 

~ At the merits trial Evans, who had been 
incarcerated with McCleskey, testified that 

McCleskey admitted to him that he shot the 

policeman and acknowledged that he wore 

makeup to disguise himself during the rob- 

bery. Evans also testified that he had 

pending against him a [federal] escape 

charge, that he had not asked the prosecu- 

tor to “fix” this charge, and that the prose- 
cutor had not promised him anything to 
testify. 

At the state habeas hearing the follow- 

ing 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 prom- 

ised nothing by the D.A. But the Detec- 

tive 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 

State Habeas Transcript at 122. 

The district court granted habeas relief 

to McCleskey under Giglio v. U.S. 405 

Judge Roney’s opinion on all other issues.’   
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in the need for reliabil- 

htion that death is the 

ent.””). There is no 

ever, to reach out and 
recisely what evidentia- 

e required. Judge Ro- 

onstrates with clarity 
showing in this case is 

f Judge, dissenting in 
lg in part, with whom 
ETT and CLARK, Cir- 

b to the dissent on the 

hl Evans, who had been 

[cCleskey, testified that 

i to him that he shot the 

lowledged that he wore 

himself during the rob- 

testified that he had 

im a [federal] escape 

l hot asked the prosecu- 

rge, and that the prose- 
mised him anything to 

beas hearing the follow- 

vans, let me ask you a 

b time that you testified 

y's trial, had you been 
hg in exchange for your 

o, I wasn’t. 1 wasn’t 

b about—I wasn’t prom- 

he D.A. But the Detec- 

t he would—he said he 

it himself, speak a word 

as what the Detective 

e told you that he would 

for you? 

etective Dorsey? 

script at 122. 

rt granted habeas relief 

der TY v. US., 405 

hion ®| other issues. . 

  

B
E
 

    
  

McCLESKEY v. KEMP 907 
Cite as 753 F.2d 877 (1985) 

US. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 
(1972). At the threshold the district court 

pointed out that 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.” 580 F.Supp. 

at 380. The court then made these subsidi- 

ary findings: (1) that Evans’s testimony was 

highly damaging; (2) that “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 af- 

fect his credibility,” id. at 381; (3) that at 
petitioner's state habeas hearings Evans 

testified “that one of the detectives investi- 

gating the case had promised to speak to 

federal authorities on his behalf,” id.; (4) 

that the escape charges pending against 

Evans were dropped subsequent to McCles- 

key’s trial. 

The en banc court seems to me to err on 

several grounds. It blurs the proper appli- 

cation of Giglio by focusing sharply on the 

word “promise.” The proper inquiry is not 

limited to formal contracts, unilateral or 

bilateral, or words of contract law, but “to 

ensure that the jury knew the facts that 

might motivate a witness in giving testimo- 

ny.” Smith v. Kemp, 715 F.2d 1459, 1467 

(11th Cir.1983). Giglio reaches the infor- 
mal understanding as well as the Tormal. 
The point is, even if the dealings are nfor- 

mal, can the witness reasonably view the 

government's undertaking as offering him 

a benefit and can a juror knowing of it 

reasonably view it as motivating the wit- 

ness in giving testimony? The verbal un- 

dertaking made in this instance by an in- 
vestigating state officer, who is a member 
of the prosecution team, that he will “put 

in a word for him” on his pending federal 

charge was an Ser that a jury was 

(Socom Jthe en banc court finds the bene- 
fit too marginal. Of course, the possible 

benefit to a potential witness can be so 

minimal that a court could find as a matter 

1. This was the description given at trial by Dr. 

of law no Giglio violation occurred. A 
trivial offer is not enough. The subject 
matter of the offer to Evans was substan- 
tial, or at least a jury was entitled to con- 

sider it so. After McCleskey was tried and 

convicted, the federal charge was dropped. 

Jhird,_she court concludes there was no 
reasonable likelihood that Evans’s testimony 
affected the.judgment of the jury. Co-de- 
fendant Wright was the only eyewitness. 

He was an accomplice, thus his testimony, 

unless corroborated, was insufficient to es- 

tablish that McCleskey was the trigger- 

man. The en banc court recognizes this 

problem but avoids it by holding that 
Wright's testimony was corroborated by 

“McCleskey’s own confession.” This could 

refer to either of two admissions of guilt 

by McCleskey. He “confessed” to Wright, 

but Wright's testimony on this subject 

could not be used to corrohorate Wright's 

otherwise insufficient accomplice testimo- 

ny. Testimony of an accomplice cannot be 

corroborated by the accomplice’s own testi- 

mony. The other “confession” was made 

to Evans and testified to by Evans. Thus 

Evans is not a minor or incidental witness. 

Evans’ testimony, describing what McCles- 

key “confessed” to him, is the corrobora- 

tion for the testimony of the only eyewit- 

ness, Wright. And that eyewitness gave 

the only direct evidence that McCleskey 

killed the officer. 

The district court properly granted the 

writ on Giglio grounds. Its judgment 

should be affirmed. 

JOHNSON, Circuit Judge, dissenting in 

part and concurring in part, with whom 
HATCHETT and CLARK, Circuit Judges 

join: 

Warren McCleskey has presented con- 

vincing evidence to substantiate his claim 

that Georgia has administered its death 

penalty in a way that discriminates on the 

basis of race. The Baldus Study, charac- 

terized as “far and away the most complete 

and thorough analysis of sentencing” ever 

carried out,! demonstrates that in Georgia 

Richard Berk, member of a panel of the Nation-  



908 753 FEDERAL REPORTER, 2d SERIES 

a person who kills a white victim has a 

higher risk of receiving the death penalty 

than a person who kills a black victim. 

Race alone can explain part of this higher 

risk. The majority concludes that the evi- 

dence “Confirms rather than condemns the 

“System and that It fails to support a con- 

Stitutional challenge. 1 disagree. In my 

“opmion, this disturbing evidence can and 

does support a constitutional claim under 

{he Eighth Amendment. In holding other-_ 

wise, [the majority commits two critical er- 

Tors: it requires McCleskey to prove that 

the State intended to discriminate against 

f him personally and it underestimates what 

{_ his evidence actually did prove. Twill ad- 

dress each of these concerns before com- 

menting briefly on the validity of the Bal- 

dus Study and addressing the other issues 

in this case. 

I. THE EIGHTH AMENDMENT AND 

RACIAL DISCRIMINATION IN THE 

ADMINISTRATION OF THE DEATH 

PENALTY 

McCleskey claims that Georgia adminis- 

ters the death penalty in a way that dis- 

criminates on the basis of race. The dis- 

trict court opinion treated this argument as 

one arising under the Fourteenth Amend- 

ment 2 and explicitly rejected the petition- 

er’s claim that he could raise the argument 

under the Eighth Amendment, as well 

The majority reviews each of these possibil- 

ities and concludes that there is little dif- 

ference in the proof necessary to prevail 

under any of the theories: whatever the 

constitutional source of the challenge, a 

petitioner must show a disparate impact 

great enough to compel the conclusion that 

purposeful discrimination permeates the 

system. These positions reflect a misun- 

derstanding of the nature of an Eighth 

Amendment claim in the death penalty con- 

text: the Eighth Amendment prohibits the 

racially discriminatory application of the 

al Academy of Sciences charged with reviewing 

all previous research on criminal sentencing 

issues in order to set standards for the conduct 

of such research. 

2. The district court felt bound by precedent to 

analyze the claim under the equal protection 

death penalty and (TcCleskey d06s not Fave \ 

to prove intent to discriminate in order to | 

show that the death penalty is being ap 

plied arbitrarily and capriciously. 

A. The Viability of an Eighth Amend- 

ment Challenge 

As the majority recognizes, the fact that 

a death penalty statute is facially valid 

does not foreclose an Eighth Amendment 

challenge based on the systemwide applica- 

tion of that statute. The district court 

| most certainly erred on this issue. Apply- 
ing the death penalty in a racially discrimi- 

natory manner violates the Eighth Amend- 

ment. Several members of the majority in 

Furman v. Georgia, 408 U.S. 238, 245-51, 

310, 364-65, 92 S.Ct. 2726, 2729-36, 2762, 
2790-91, 33 L.Ed.2d 346 (1972) (concurring 
opinions of Douglas, Stewart, Marshall, 

JJ.), relied in part on the disproportionate 

impact of the death penaity onracia mitor- 

ities in concluding that the death penalty as 

Then administered constituted pray and 

capricious punishment. 

When decisionmakers look to the race of 

a victim, a factor completely unrelated to 

‘the proper concerns of the sentencing pro- 

cess enters into determining the sentence. 

Reliance on the race of the victim means 

that the sentence is founded in part on a 

morally and constitutionally repugnant 

judgment regarding the relative low value 

of the lives of black victims. Cf. Zant v. 

Stephens, 462 U.S. 862, 103 S.Ct. 2733, T7 

L.Ed.2d 235 (1983) (listing race of defend- 

ant as a factor “constitutionally impermis- 

sible or totally irrelevant to the sentencing 

process”). There is no legitimate basis in 

reason for relying on race in the sentencing 

process. Because the use of race is both } 

irrelevant to sentencing and impermissible, 

sentencing determined in part by race is | 

arbitrary and capricious and therefore a } 

clause, but expressed the opinion that it might 

best be understood as a due process claim. It 

does not appear that a different constitutional 

basis for the claim would have affected the 

district court’s conclusions. 

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IES 

d McCleskey does not have 

to discriminate in order to 

death penalty is being ap- 

and capriciously. 

bility of an Eighth Amend- 

hllenge 

ity recognizes, the fact that 

y statute is facially valid 

ose an Eighth Amendment 

| on the systemwide applica- 

tatute. The district court 

erred on this issue. Apply- 

enalty in a racially discrimi- 

violates the Eighth Amend- 

members of the majority in 

orgia, 408 U.S. 238, 245-57, 

p S.Ct. 2726, 2729-36, 2762, 

d.2d 346 (1972) (concurring 

ouglas, Stewart, Marshall, 

bart on the disproportionate 

eath penalty on racial minor- 

ing that the death penalty as 

red constituted arbitrary and 

jshment. : 

nmakers look to the race of 

tor completely unrelated to 

cerns of the sentencing pro- 

o determining the sentence. 

he race of the victim means 

nce is founded in part on a 

constitutionally repugnant 

Lrding the relative low value 

black victims. Cf Zant v. 

U.S. 862, 103 S.Ct. 2733, TT 

1983) (listing race of defend- 

r “constitutionally impermis- 

: irrelevant to the sentencing 

bere is no legitimate basis in 

/ing on race in the sentencing 

use the use of race is both 

Lentencing and impermissible, 

termined in part by race is 

capricious and therefore a 

pressed the opinion that it might 

stood as a due process claim. It 

ar that a different constitutional 

claim would have affected the 

5 “@   

McCLESKEY v. KEMP 909 
Cite as 753 F.2d 877 (1985) 

violation of the Eighth Amendment. See 

Furman v. Georgia, 408 U.S. 238, 256, 92 

S.Ct. 2726, 2735, 33 L.Ed.2d 346 (1972) 

(Douglas, J., concurring) (“the high service 

rendered by the ‘cruel and unusual’ punish- 

ment clause of the Eighth Amendment is to 

require judges to see to it that general 

laws are not applied sparsely, selectively, 

and spottily to unpopular groups”). 

B. The Eighth Amendment and Proof 

of Discriminatory Intent 

The central concerns of the Eighth 

Amendment deal more with decisionmaking 

processes and groups of cases than with 

individual decisions or cases. In a phrase 

repeated throughout its later cases, the 

Supreme Court in Gregg v. Georgia, 428 

U.S. 153, 195 n. 46, 96 S.Ct. 2909, 2935 n. 

46, 49 L.Ed.2d 859 (1976) (plurality opinion), 

stated that a “pattern of arbitrary and 

- capricious_sentencing” would violate the 

Eighth Amendment. In fact, the Court has 

consistently adopted a systemic perspective 

on the death penalty, looking to the opera- 

tion of a state’s entire sentencing structure 

in determining whether it inflicted sen- 

tences in violation of the Eighth Amend- 

ment. See, e.g., Eddings v. Oklahoma, 455 

U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 

1 (1982) (capital punishment must be im- 

posed “fairly, and with reasonable consist- 

ency, or not at all”); Godfrey v. Georgia, 

446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 

(1980) (“[I}f a State wishes to authorize 

capital punishment it has a constitutional 

responsibility to tailor and apply its law in 

a manner that avoids the arbitrary and 

capricious infliction of the death penalty.”). 

Without this systemic perspective, re- 

view of sentencing would be extremely lim- 

ited, for the very idea of arbitrary and 

capricious sentencing takes on its fullest 

meaning in a comparative context. A non- 

arbitrary sentencing structure ‘must pro- 

3. The Supreme Court in Pulley v. Harris, — 

U.S. ——, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), 

emphasized the importance of factors other 

than appellate proportionality review that 

would control jury discretion and assure that 

sentences would not fall into an arbitrary pat- 
tern. The decision in Pulley deemphasizes the 

vide some meaningful way of distinguish- 

ing between those who receive the death 

sentence and those who do not. Godfrey v. 

Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 

1767, 64 L.Ed.2d 398 (1980) Furman v. 

Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 

2764, 33 L.Ed.2d 346 (1972) (White, J., con- 

curring). Appellate proportionality review 

is not needed in every case but consistency 

is still indispensable to a constitutional sen- 

tencing system? The import of any single 

sentencing decision depends less on the in- 

tent of the decisionmaker than on the out- 

come in comparable cases. Effects evi- 

dence is well suited to this type of review. 

This emphasis on the outcomes produced 

by “the entire system springs from the 

State’s special duty to insure fairness with 

regard to something as serious as a death 

sentence. See Zant v. Stephens, 462 U.S. 

862, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 

(1983); Lockett v. Ohio, 438 U.S. 586, 605, 

98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); 

Woodson v. North Carolina, 428 U.S. 280, 

305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 

(1976) (plurality opinion). Monitoring pat- 

terns of sentences offers an especially ef- 

fective way to detect breaches of that duty. 

Indeed, because the death penalty retains 

the need for discretion to make individual- 

ized judgments while at the same time 

heightening the need for fairness and con- 

sistency, Eddings v. Oklahoma, supra, 455 

U.S. at 110-12, 102 S.Ct. at 874-75, pat- 

terns of decisions may often be the only 

acceptable basis of review. Discretion hin- 

ders inquiry into intent: if unfairness and 

inconsistency are to be detected even when 

they are not overwhelming or obvious, ef- 

fects evidence must be relied upon. 

Insistence on systemwide objective stan- 

dards to guide sentencing reliably prevents 

aberrant decisions without having to probe 

the intentions of juries or other decision- 

makers. Gregg v. Georgia, supra, 428 

importance of evidence of arbitrariness i in indi- 

vidual cases and looks exclusively to “systemic” 

arbitrariness. The case further underscores this 

court's responsibility to be alert to claims, such 

as the one McCleskey makes, that allege more 

than disproportionality in a single sentence. 

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910 

U.S. at 198, 96 S.Ct. at 2936; Woodson v. 

North Carolina, supra, 428 U.S. at 303, 96 

S.Ct. at 2990 (objective standards necessary 

to “make rationally reviewable the process 

for imposing the death penalty”). The 

need for the State to constrain the discre- 

tion of juries in the death penalty area is 

unusual by comparison to other areas of 

the law. It demonstrates the need to rely 

on systemic controls as a way to reconcile 

discretion and consistency; the same com- 

bined objectives argue for the use of ef- 

fects evidence rather than waiting for evi- 

dence of improper motives in specific cases. 

Objective control and review of sentenc- 

ing structures is carried so far that a jury 

or other decisionmaker may be presumed 

to have intended a non-arbitrary result 

when the outcome is non-arbitrary by an 

objective standard; the law, in short, looks 

to the result rather than the actual mo- 

tivesd In Westbrook v. Zant, 704 F.2d 

1487, 1504 (11th Cir.1983), this Court held 

that, even though a judge might not prop- 

erly instruct a sentencing jury regarding 

the proper definition of aggravating cir- 

cumstances, the “uncontrolled discretion of 

an uninstructed jury” can be cured by re- 

view in the Georgia Supreme Court. The 

state court must find that the record shows 

4. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 

L.Ed.2d 973 (1978), and other cases demonstrate 

that the actual deliberations of the sentencer are 

relevant under the Eighth Amendment, for miti- 

gating factors must have their proper place in 

all deliberations. But the sufficiency of intent 

in proving an Eighth Amendment violation does 

not imply the necessity of intent for all such 

claims. 

5. The only Fifth or Eleventh Circuit cases touch- 

ing on the issue of discriminatory intent under 

the Eighth Amendment appear to be inconsist- 

ent with the Supreme Court's approach and 

therefore wrongly decided. The court in Smith 

v. Balkcom, 660 F.2d 573, 584 (5th Cir. Unit B 

1981), modified, 671 F.2d 858 (5th Cir.1982), 

stated that Eighth Amendment challenges based 

on race require a showing of intent, but the 

court reached this conclusion because it wrong- 

ly believed that Spinkellink v. Wainwright, 578 

F.2d 582 (5th Cir.1978), compelled such a result. 

The Spinkellink court never reached the ques- 

tion of intent, holding that Supreme Court 

precedent foreclosed all Eighth Amendment 

challenges except for extreme cases where the 

sentence is shockingly disproportionate to the 

crime. 578 F.2d at 606 & n. 28. See supra note 

753 FEDERAL REPORTER, 2d SERIES 

the presence of statutory aggravating fac- 

tors that a jury could have relied upon. If 

the factors are present in the record it does 

not matter that the jury may have misun- 

derstood the role of aggravating circum- 

stances. If the State can unintentionally 

succeed in preventing arbitrary and capri 

cious sentencing, it would seem that the 

State can also fail in its duty even though 

none of the relevant decisionmakers intend 

such a failure.’ 

In sum, the Supreme Court's systemic 

and objective perspective in the review and 

control of death sentencing indicates that a 

pattern of death sentences skewed by race 

alone will support a claim of arbitrary and 

capricious sentencing in violation of the 

Eighth Amendment. See Furman v. Geor- 

gia, 408 U.S. 238, 253, 92 S.Ct. 2726, 2733, 

33 L.Ed.2d 346 (1972) (Douglas, J., concur- 

ring) (“We cannot say that these defend- 

ants were sentenced to death because they 

were black. Yet our task is not restricted 

to an effort to divine what motives impelled 

these death penalties.”). The majority's 

holding on this issue conflicts with every 

other constitutional limit on the death pen- 

alty. After today, in this Circuit arbitrari- 

ness based on race will be more difficult to 

3. The Smith court cites to a portion of the 

Spinkellink opinion dealing with equal protec- 

tion arguments. 578 F.2d at 614 n. 40. Neither. 

of the cases took note of the most pertinent 

Eighth Amendment precedents decided by the 

Supreme Court. 

Other Eleventh Circuit cases mention that ha- 

beas corpus petitioners must prove intent to 

discriminate racially against them personally in 

the application of the death sentence. But these 

cases all either treat the claim as though it arose 

under the Fourteenth Amendment alone or rely 

on Smith or one of its successors. See Sullivan 

v. Wainwright, 721 F.2d 316 (11th Cir.1983); 

Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 

1983). Of course, to the extent these cases at- 

tempt to foreclose Eighth Amendment chal- 

lenges of this sort or require proof of particular- 

ized intent to discriminate, they are inconsistent 

with the Supreme Court's interpretation of the 

Eighth Amendment. Cf. Gates v. Collier, 501 

F.2d 1291, 1300-01 (5th Cir.1974) (prohibition 

against cruel and unusual punishment “is not 

limited to specific acts directed at selected indi- 

viduals”).    



@ 
statutory aggravating fac- 

could have relied upon. If 

present in the record it does 

the jury may have misun- 
le of aggravating circum- 

State can unintentionally 

enting arbitrary and capri- 

pr, it would seem that the 

ail in its duty even though 

vant decisionmakers intend 

Supreme Court’s systemic 

rspective in the review and 

sentencing indicates that a 

i sentences skewed by race 

rt a claim of arbitrary and 

bncing in violation of the 

lent. See Furman v. Geor- 
8, 253, 92 S.Ct. 2726, 2733, 

(1972) (Douglas, J., concur- 

ot say that these defend- 

nced to death because they 

t our task is not restricted 

ivine what motives impelled 

nalties.”). The majority's 

issue conflicts with every 

bnal limit on the death pen- 

ay, in this Circuit arbitrari- 

ace will be more difficult to 

ourt cites to a portion of the 
pion dealing with equal protec- 
578 F.2d at 614 n. 40. Neither 

pk note of the most pertinent 
hent precedents decided by the 

Circuit cases mention that ha- 
itioners must prove intent to 
ially against them personally in 
f the death sentence. But these 
eat the claim as though it arose 
enth Amendment alone or rely 
of its successors. See Sullivan 
721 F.2d 316 (11th Cir.1983); 

wright, 709 F.2d 1443 (11th Cir. 

se, to the extent these cases at- 
jose Eighth Amendment chal 
rt or require proof of particular- 
Lcriminate, they are inconsistent 

¢ Court's interpretation of the 
ent. Cf. Gates v. Collier, 501 

01 (5th Cir.1974) (prohibition 

d unusual punishment “is not 
ic acts directed at selected indi- 

  
  

a 

McCLESKEY v. KEMP 911 
Cite as 753 F.2d 877 (1985) 

eradicate than any other sort of arbitrari- 
ness in the sentencing system. 

II. PROVING DISCRIMINATORY EF- 
FECT AND INTENT WITH THE 
BALDUS STUDY 

The statistical study conducted by Dr. 
Baldus provides the best possible evidence 
of racially disparate impact. It began with 

/ 2 single unexplained fact: killers of white 
| victims in Georgia over the last decade 
| have received the death penalty eleven 
| times more often than killers of black vie- 
WLims.® [1t then employed several statistical 

techniques, including regression analysis, 

to isolate the amount of that disparity at- 

tributable to both racial and non-racial fac- 

tors. Each of the techniques yielded a 
statistically significant racial influence of 

at least SIX percent; in other words, they 
all showed that the pattern of sentencing 

could only be explained by assuming that 

the race of the victim made all defendants 

convicted of killing white victims at least 

six percent more likely to receive the death 

penalty. Other factors ? such as the num- 

ber of aggravating circumstances or the 

occupation of the victim could account for 

some of the eleven-to-one differential, but 

the race of the victim remained one of the 
strongest influences. ES : 

Assuming that the study actually proves 

what it claims to prove, an assumption the 

majority claims to make, the evidence un- 

doubtedly shows a disparate impact. Re- 

gression analysis has the great advantage 

of showing that a perceived racial effect is 

an actual racial effect because it controls 

for the influence of non-racial factors. By 

screening out non-racial explanations for 

certain outcomes, regression analysis of- 

6. Among those who were eligible for the death 
penalty, eleven percent of the killers of white 
victims received the death penalty, while one 
percent of the killers of black victims received 
it. 

7. In one of the largest of these models, the one 
focused on by the district court and the majori- 
ty, the statisticians used 230 different indepen- 
dent variables (possible influences on the pat- 
tern of sentencing), including several different 
aggravating and many possible mitigating fac- 
tors. 

fers a type of effects evidence that ap- 

proaches evidence of intent, no matter 

what level of disparity is shown. For ex- 

ample, the statistics in this case show that 

a certain number of death penalties were 

probably imposed because of race, without 

ever inquiring directly into the motives of 
jurors or prosecutors. 

Regression analysis is becoming a com- 

fmon method of proving discriminatory ef- 

fect in employment discrimination suits. 
In fact, the Baldus Study shows effects at 
least as dramatic and convincing as those } 

in statistical studies offered in the past. 

Cf. Segar v. Smith, 738 F.2d 1249 (D.C.Cir. 

1984); Wade v. Mississippi Cooperative 

Extension Service, 528 F.2d 508 (5th Cir. 

1976). Nothing more should be necessary 

to prove that Georgia is applying its death 

penalty statute in a way that arbitrarily 

and capriciously relies on an illegitimate 
factor—race.? 

Even if proof of discriminatory intent 

were necessary to make out a constitution- 

al challenge, under any reasonable defini- 

tion of intent the Baldus Study provides 

sufficient proof. The majority ignores the 

fact that McCleskey has shown discrimina- 

tory intent at work in the sentencing sys- 

tem even though he has not pointed to any 
specific act or actor responsible for discrim- 

inating against him in particular. 

The law recognizes that even though in- 

tentional discrimination will be difficult to 

detect in some situations, its workings are 

still pernicious and real. Rose v. Mitchell, 

443 U.S. 545, 559, 99 S.Ct. 2993, 3001, 61 

L.Ed.2d 739 (1979). Under some circum- 

stances, therefore, proof of discriminatory 

effect will be an important first step in 

8. See part 1, supra. Of course, proof of any 
significant racial effects is enough under the 
Eighth Amendment, for a requirement of prov- 
ing large or pervasive effects is tantamount to 
proof of intent. 

9. The same factors leading to the conclusion 
that an Eighth Amendment claim does not re- 
quire proof of intent militate even more strong- 
ly against using too restrictive an understanding 
of intent. 

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912 

proving intent, Crawford v. Board of Edu- 

cation, 458 U.S. 527, 102 S.Ct. 3211, 73 

L.Ed.2d 948 (1982), and may be the "best 

available proof of intent. Washington v. 
Davis, 426 U.S. 229, 241-42, 96 S.Ct. 2040, 

2048-49, 48 L.Ed.2d 597 (1976); United 

States v. Texas Educational Agency, 579 | 

F.2d 910, 913-14 & nn. 5-7 (5th Cir.1978), 

cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 

L.Ed.2d 879 (1979). 

For instance, proof of intentional discrim} 

ination in the selection of jurors has tradi 
tionally depended on showing racial ef- 

fects. See Castaneda v. Partida, 430 U.S. 

482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); 
Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 

532, 24 L.Ed.2d 532 (1970); Gibson v. Zant, 

705 F.2d 1543 (11th Cir.1983). This is be- 
cause the discretion allowed to jury com- 

missioners, although legitimate, could easi- 

Iy be used to mask conscious or uncon- 

scious racial discrimination. The Supreme 

Court has recognized that the presence of 

this sort of discretion calls for indirect 

methods of proof. Washington v. Davis, 

426 U.S. 229, 241-42, 96 S.Ct. 2040, 2048- 
49, 48 L.Ed.2d 597 (1976); Arlington 
Heights v. Metropolitan Housing Corp., 

429 U.S. 252, 266 n. 13, 97 S.Ct. 555, 564 n. 
13, 50 L.Ed.2d 450 (1977). 

This Court has confronted the same prob- 

lem in an analogous setting. In Searcy v. 

Williams, 656 F.2d 1003, 1008-09 (5th Cir. 

1981), aff'd sub nom. Hightower v. Searcy, 

455 U.S. 984, 102 S.Ct. 1605, 71 L.Ed.2d 844 

(1982), the court overturned a facially valid 

procedure for selecting school board mem- 

bers because the selections fell into an 

overwhelming pattern of racial imbalance. 

The decision rested in part on the discretion 

10. The majority distinguishes the jury discrimi- 
nation cases on tenuous grounds, stating that 
the disparity between the number of minority 
persons on the jury venire and the number of 
such persons in the population is an “actual 
disparity,” while the racial influence in this case 
is not. If actual disparities are to be con- 
sidered, then the court should employ the actual 
(and overwhelming) eleven-to-one differential 
between white victim cases and black victim 
cases. The percentage figures presented by the 
Baldus Study are really more reliable than “ac- 
tual” disparities because they control for possi- 
ble non-racial factors. 

753 FEDERAL REPORTER, 2d SERIES 

inherent in the selection process: “The. 

challenged application of the statute often 
involves discretion or subjective criteria utj. 

lized at a crucial point in the decision-mak. 

ing process.” 

The same concerns at work in the jury 
discrimination context operate with equa) 
force in the death penalty context. The 

prosecutor has considerable discretion ang 
the jury has bounded but irreducible discre- 

tion. Defendants cannot realistically hope | 
to_find direct evidence of discriminatory | 

intent. This is precisely the situation envi- 

sioned in Arlington Heights, where the 

Court pointed out that “[sJometimes a clear 

pattern, unexplainable on grounds other 

than race, emerges from the effect of the 

state action even when the governing legis- 
lation appears neutral on its face.... The 

evidentiary inquiry is then relatively easy.” 
429 U.S. at 266, 97 S.Ct. at 564. 

As a result, evidence of discriminatory 
effects presented in the Baldus Study, like 

evidence of racial disparities in the compo- 
sition of jury pools! and in other con- 
texts,!! excludes every reasonable infer- 
ence other than discriminatory intent at 

work in the system. This Circuit has ac- 

knowledged on several occasions that evi- 

dence of this sort could support a constitu- 

tional challenge. Adams v. Wainwright, 

709 F.2d 1443, 1449 (11th Cir.1983); Smith 
v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 

1981), modified in part, 671 F.2d 858, cert. 

denied, 459 U.S. 882, 103 S.Ct. 181, 74 

L.Ed.2d 148 (1982); Spinkellink, supra, at 

614. 

A petitioner need not exclude all infer- 

ences other than discriminatory intent. in 

“hiSTor her particular case.” Yet the major- 

11. United States v. Texas Educational Agency, 
579 F.2d 910 (5th Cir.1978), cert. denied, 443 
U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979), 
involving a segregated school system, provides 
another example of effects evidence as applied 
to an entire decisionmaking system. 

12. The particularity requirement has appeared 
sporadically in this Court's decisions prior to 
this time, although it was not a part of the 
original observation about this sort of statistical 

evidence in Smith v. Balkcom, supra.    



1: @) 
selection process: “The. 

ation of the statute often 
n or subjective criteria ut; 
point in the decision-mak. 

erns at work in the jury 
ntext operate with equa] 
th penalty context. The 
pnsiderable discretion ang 
ded but irreducible discre. 
cannot realistically hope 

fidence of discriminatory 
ecisely the situation env. 
ton Heights, where the 
that “[slometimes a clear 
pable on grounds other 
ps from the effect of the 
hen the governing legis- 

tral on its face.... The 
is then relatively easy.” 
S.Ct. at 564. 

idence of discriminatory 
the Baldus Study, like 

disparities in the compo- 
pls 1° and in other con- 
every reasonable infer 
liscriminatory intent at 
Mm. This Circuit has ac- 
reral occasions that evi- 
ould support a constitu- 
Adams v. Wainwright, 

b (11th Cir.1983): Smith 
2d 573 (5th Cir. Unit B 
part, 671 F.2d 858, cert. 
p82; 103 S.Ct. 181, 74 
Spinkellink, supra, at 

| not exclude all infer 
iscriminatory intent in 
case.” Yet the major- 

cxas Educational Agency, 
ir.1978), cert. denied 443 
6, 61 L.Ed.2d 879 (1979), 

d school system, provides 
tffects evidence as applied 
aking system. 

equirement has appeared 
ourt’s decisions prior to 

t was not a part of the 
bout this sort of statistical 
Balkcom, supra. 

    
    

- McCLESKEY v. KEMP : 913 Cite as 753 F.2d 877 (1985) 
ity improperly stresses this particularity 
requirement and interprets it so as to close 
a~door left open by the Supreme Court 3 
It would be nearly impossible to prove 
through evidence of a system’s usual ef- 
fects that intent must have been a factor in 
any one case; effects evidence, in this con- 
text, necessarily deals with many cases at 
once. Every jury discrimination charge 
would be stillborn if the defendant had to 
prove by direct evidence that the jury com- 
missioners intended to deprive him or her 
of the right to a jury composed of a fair 
cross-section of the community. Requiring 
proof of discrimination in a particular case 
is “especially Inappropriate with regard to 
an Eighth Amendment claim, for even un- 
der the majority's description of the proof 
necessary to sustain an Eighth Amendment 
challenge, race operating in a pervasive 
manner “in the system” will suffice. 

The majority, after sowing doubts of this 
sort, nevertheless concedes that despite the 
particularity requirement, evidence of the 
system’s effects could be strong enough to 
demonstrate intent and purpose.’ Its sub- 
sequent efforts to weaken the implications 
to be drawn from the Baldus Study are 
uniformly unsuccessful. 

For example, the majority takes comfort 
in the fact that the level of aggravation 
powerfully influences the sentencing deci- 
sion in Georgia. Yet this fact alone does 
not reveal a “rational” system at work. 
The statistics not only show that the num- 
ber of aggravating factors is a significant 
influence; they also point to the race of the 

13. The" dissenting opinion of Justice Powell in 
Stephens v. Kemp, — U.S. —, ‘304 "S.Ct, 563 
78 L.Ed.2d 370, 372 (1984), does not undermine 
the clear import of cases such as the jury dis- 
crimination cases. For one thing, a dissent 
from a summary order does not have the prece- 
dential weight of a fully considered opinion of 
the Court. For another, the Stephens dissent 
considered the Baldus Study as an equal protec- 
tion argument only and did not address what 
might be necessary to prove an Eighth Amend- 
ment violation. 

14. While I agree with J udge Anderson's observa- 
tion that “the proof of racial motivation re- 
quired in a death case ... would be less strict 
than that required in civil cases or in the crimi- 
nal justice system generally,” I find it inconsist- 

victim as a factor of considerable influence. 
Where racial discrimination contributes to 
an official decision, the decision is unconsti- 
tutional even though discrimination was 
not the primary motive. Personnel Ad- 
ministrator v. Feeney, 442 U.S. 256, 279, 
99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). 

Neither can the racial impact be ex- 
plained away by the need for discretion in 
the administration of the death penalty or 
by any “presumption that the statute is 
operating in a constitutional manner.” The 
discretion necessary to the administration 
of the death penalty does not include the 
discretion to consider race: the jury may 
consider any proper aggravating factors, 
but it may not consider the race of the 
victim as an aggravating factor. Zant v. 
Stephens, 462 U.S. 862, 103 S.Ct. 2733, 
2741, 77 L.Ed.2d 235 (1983). And a statute 
deserves a presumption of constitutionality 
only where there is real uncertainty as to 
whether race influences its application. 
Evidence such as the Baldus Study, show- 
ing that the pattern of sentences can only 
be explained by assuming a significant ra- 
cial influence,’® overcomes whatever pre- 
sumption exists. 

The majority's effort to discount the im- 
portance of the “liberation hypothesis” also 
fails. In support of his contention that 
juries were more inclined to rely on race 
when other factors did not militate toward 
one outcome or another, Dr. Baldus noted 
that a more pronounced racial influence 
appeared in cases of medium aggravation 

ent with his acceptance of the majority out- 
come. The “exacting” constitutional supervi- 
sion over the death penalty established by the 
Supreme Court compels the conclusion that dis- 
criminatory effects can support an Eighth 
Amendment challenge. Furthermore, the ma- 
jority’s evaluation of the evidence in this case is, 
if anything, more strict than in other contexts. 
See note 10, supra. 

15. The racial influence operates in the average 
case and is therefore probably at work in any 
single case. The majority misconstrues the na- 
ture of regression analysis when it says that the 
coefficient of the race-of-the-victim factor repre- 
sents the percentage of cases in which race 
could have been a factor. That coefficient rep- 
resents the influence of race across all the cases.  



914 

(20 percent) than in all cases combined (6 

percent). The majority states that racial 

impact in a subset of cases cannot provide 

the basis for a systemwide challenge. 

However, there is absolutely no justifica- 

tion for such a claim. The fact that a 
- system mishandles a sizeable subset of 

cases IS persuasive evidence that the entire 

system operates improperly. CF. Connectr- 
cut v. Teal, 457 U.S. 440, 102 S'Ct. 2525, 73 
L.Ed:2d 130 (1984) (written test discrimi- 

nates against some employees); Lewis v. 

City of New Orleans, 415 U.S. 130, 94 S.Ct. 
970, 39 L.Ed.2d 214 (1974) (statute infring- 

ing on First Amendment interests in some 

cases). A system can be applied arbitrarily 

and capriciously even if it resolves the obvi- 

ous cases In a rational manner. Admitted- 

ly, the lack of a precise definition of medi- 

um aggravation cases could lead to either 

an overstatement or understatement of the 

racial influence. Accepting, however, that 

the racial factor is accentuated to some 

degree in the middle range of cases, the 

evidence of racial impact must be taken all 
the more seriously. 

Finally, the majority places undue re- 

liance on several recent Supreme Court 

cases. It argues that Ford v. Strickland, 

— U.S. —, 104 S.Ct. 3498, 82 L.Ed.2d 
911 (1984), Adams v. Wainwright, — U.S. 

—, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984), 
and Sullivan v. Wainwright, — U.S. 
—, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983), 
support its conclusion that the Baldus 

Study does not make a strong enough 
showing of effects to justify an inference 

of intent. But to the extent that these 

cases offer any guidance at all regarding 

the legal standards applicable to these 

studies,!” it is clear that the Court con- 

sidered the validity of the studies rather 

16. The majority apparently ignores its commit- 
ment to accept the validity of the Baldus Study 
when it questions the definition of “medium 
aggravation cases” used by Dr. Baldus. 

17. The opinion in Ford mentioned this issue in a 
single sentence; the order in Adams was not 
accompanied by any written opinion at .all. 
None of the three treated this argument as a 
possible Eighth Amendment claim. Finally, the 
“death odds multiplier” is not the most pro- 

753 FEDERAL REPORTER, 2d SERIES 

than their sufficiency. In Sullivan, the 
Supreme Court refused to stay the exec, 
tion simply because it agreed with the deci- 
sion of this Court, a decision based on the 
validity of the study alone. Sullivan 
Wainwright, 721 F.2d 316 (11th Cir.1983) 
(citing prior cases rejecting statistical ej. 
dence because it did not account for non-ra. 
cial explanations of the effects). As the 
majority mentions, the methodology of the 
Baldus Study easily surpasses that of the 
earlier studies involved in those cases. 

Thus, the Baldus Study offers a convine. 
ing explanation of the disproportionate ef. 

fects of Georgia's death penalty system. 
It shows a clear pattern of sentencing that 
can only be explained in terms of race, and 
it does so in a context where direct evi 
dence of intent is practically impossible to 
obtain Tt strains the imagination to be. 
lieve that the significant influence on sen- 
tencing left unexplained by 230 alternative 
factors is random rather than racial, espe- 
cially in a state with an established history 
of racial discrimination. Turner 
Fouche, supra; Chapman v. King, 154 
F.2d 460 (5th Cir.), cert. denied, 327 US. 

800, 66 S.Ct. 905, 90 L.Ed. 1025 (1946) J 
The petitioner has certainly presented evi- 
dence of intentional racial discrimination at 
work in the Georgia system. Georgia has 
within the meaning of the Eighth Amend- 
ment applied its statute arbitrarily and ca- 
priciously. 

II. THE VALIDITY OF THE BALDUS 
STUDY 

The majority does not purport to reach 

the issue of whether the Baldus Study reli- 

ably proves what it claims to prove. How- 

ever, the majority does state that the dis- 

trict court’s findings regarding the validity 

nounced statistic in the Baldus Study: a ruling 
of insufficiency based on that one indicator 
would not be controlling here. 

18. Indeed, the Court indicated that it would 
have reached a different conclusion if the dis- 
trict court and this court had not been given the 
opportunity to analyze the statistics adequately. 
— US. —, 104 S.C. at 451, n. 3, 78 L.Ed.2d 
at 213, n. 3.   

  

   



fficiency. In Sullivan, the 
refused to stay the execy. 

ause it agreed with the deci. 
purt, a decision based on the 

pb study alone. Sullivan 
21 F.2d 316 (11th Cir.1983) 

ses rejecting statistical evi- 
it did not account for non-ra- 
ns of the effects). As the 
fons, the methodology of the 
easily surpasses that of the 
involved in those cases. 

hldus Study offers a convine- 
of the disproportionate ef- 

gia’s death penalty system. 
pr pattern of sentencing that 
plained in terms of race, and 

a context where direct evi- 
is practically impossible to 

ains the imagination to be- 
Significant influence on sen- 
explained by 230 alternative 
om rather than racial, espe- 

b with an established history 
fcrimination. Turner o. 
; Chapman v. King, 154 

ir.), cert. denied, 327 US. 

905, 90 L.Ed. 1025 (1946). 

has certainly presented evi- 

onal racial discrimination at 

orgia system. Georgia has 

ning of the Eighth Amend- 
5 statute arbitrarily and ca- 

IDITY OF THE BALDUS 

does not purport to reach 

ether the Baldus Study reli- 

ht it claims to prove. How- 

ity does state that the dis- 

lings regarding the validity 

Ein the Baldus Study: a ruling 
based on that one indicator 

ntrolling here. 

ourt indicated that it would 

different conclusion if the dis- 

is court had not been given the 
alyze the statistics adequately. 

4 S.Ci. at 451, n. 3, 78 L.Ed.2d   

McCLESKEY v. KEMP 915 
Cite as 753 F.2d 877 (1985) 

of the study might foreclose habeas relief 
on this issue. Moreover, the majority opin- 
ion in several instances questions the validi- 
ty of the study while claiming to be inter- 

ested in its sufficiency alone. I therefore 

will summarize some of the reasons that 

the district court was clearly erroneous in 

finding the Baldus Study invalid. 

The district court fell victim.to a miscon- 
ceptiofi that distorted its factual findings. 

The Court pointed™sut a goodly number of 

imperfections in the study but rarely went 

ahead to determine the significance of 
those imperfections. A court may not sim- 

ply point to flaws in a statistical analysis 

and conclude that it is completely unrelia- 

ble or fails to prove what it was intended to 

prove. Rather, the Court must explain 

why the imperfection makes the study less 

capable of proving the proposition that it 

was meant to support. Eastland v. Ten- 

nessee Valley Authority, 704 F.2d 613 
(11th Cir.1983), cert. denied, — U.S. —, 

104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). 

Several of the imperfections noted by the. 
district court were not legally significant 

b&cause of their minimal effect. Many of 

the errors the data base match this de- 

scription. For instance, the “mismatches” 
in data entered once for cases in the Proce- 
dural Reform Study and again for the same 

cases in the Charging and Sentencing 

Study were_scientifically negligible. The 

district court relied on the data that 

changed from one study to the next in 

concluding _that the coders were allowed 

19. Phe remaining errors affected little more 
than one percent of the data in any of the 
thodels. Data errors of less than 10 or 12% 
generally do not threaten the validity of a mod- 
el 

20. Dr. Baldus used an “imputation method,” 
whereby the race of the victim was assumed to 
be the same as the race of the defendant. Given 
the predominance of murders where the victim 
and defendant were of the same race, this meth- 

od was a reasonable way of estimating the num- 
ber of victims of each race. If further reduced 
the significance of this missing data. 

21. The district court, in assessing the weight to 
be accorded this omission, assumed that Dr. 
Baldus was completely unsuccessful in predict- 

too much discretion. But most of the al- 

leged “mismatches” resulted from inten-—X 
tional improvements in the coding tech- 
niques and the remaining errors !* were not 

large enough to affect the results. 

The data missing in some cases was also 

a matter of concern for the district court. 

The small effects of the missing data leave 

much of that concern unfounded. The race 

of the victim was uncertain in 6% of the 

cases at most ?®; penalty trial information 

was unavailable in the same percentage of 
cases.?? The relatively small amount of 
missing data, combined with the large num- 

ber of variables used in several of the 

models, should have led the court to rely on 
the study. Statistical analyses have never 

been held to a standard of perfection or 

near perfection in order for courts to treat 

them as competent evidence. Trout wv. 
Lehman, 702 F.2d 1094, 1101-02 (D.C.Cir. 

1983). Minor problems are inevitable in a 

study of this scope and complexity: the 

stringent standards used by the district 

court would spell the loss of most statisti- 

cal evidence. g 

Other imperfections in the study were 

not significant because there was no reason 
to believe that the problem would work 

systematically to expand the size of the 

race-of-the-victim factor rather than to con- 

tract it or leave it unchanged. The multi- 

collinearity problem is a problem of notable 

proportions that nonetheless did not in- 

crease the size of the race-of-the-victim fac- 

tor.? Ideally the independent variables in 

ing how many of the cases led to penalty trials. 
Since the prediction was based on discernible 
trends in the rest of the cases, the district court 
was clearly erroneous to give no weight to the 
prediction. 

22. The treatment of the coding conventions pro- 
vides another example. The district court criti- 
cized Dr. Baldus for treating “U” codes (indicat- 

ing uncertainty as to whether a factor was 
present in a case) as being beyond the knowl- 
edge of the jury and prosecutor (“absent”) rath- 
er than assuming that the decisionmakers knew 
about the factor (“present”). Baldus contended 

that, if the extensive records available on each 
case did not disclose the presence of a factor, 
chances were good that the decisionmakers did 
not know of its presence, either. Dr. Berk testi-  



916 

a regression analysis should not be related 

to one another. If one independent varia- 
ble merely serves as a proxy for another, 

the model suffers from “multicollinearity.” 

That condition could either reduce the sta- 

tistical significance of the variables or dis- 

tort their relationships to one another. Of 

course, to the extent that multicollinearity 

reduces statistical significance it suggests 

that the racial influence would be even 
more certain if the multicollinearity had not 
artificially depressed the variable’s statisti 
cal significance. As for the distortions in 

the relationships between the variables, _ex- 

perts for the petitioner explained that mul- 

ticolliigarity tends to dampen the racial 
effect rather than enhance it.2 

The district court did not fail in every 

instance to analyze the significance of the 
problems. Yet when it did reach this issue, 

the court at times appeared to misunder- 
stand the nature of this study or of regres- 
sion analysis generally. In several related 

criticisms, it found that any of the models 

accounting for less than 230 independent 

variables were completely worthless (580 

F.Supp. at 361), that the most complete 

models were unable to capture every 

nuance of every case (580 F.Supp. at 356, 

371), and that the models were not suffi- 

ciently predictive to be relied upon in light 

of their low R 2 value (580 F.Supp. at 361).24 
The majority implicitly questions the validi- 

ty of the Baldus Study on several occasions 

when it adopts the first two of these criti- 

fied that the National Academy of Sciences had 
considered this same issue and had recom- 
mended the course taken by Dr. Baldus. Dr. 
Katz, the expert witness for the state, suggested 
removing the cases with the U codes from the 
study altogether. Thg_district court's sugges- 
tion, then, that the U codes be treated as 
present,” appears 10 be groundless and clearly 
érroneous. 

‘Baldus later demonstrated that the U codes 
did not affect the race-of-the-victim factor by 
recoding all the items coded with a U and treat- 
ing them as present. Each of the tests showed 
no significant reduction in the racial variable. 
The district court rejected this demonstration 
because it was not carried out using the largest 
available model. 

23. The district court rejected this expert testimo- 
ny, not because of any rebuttal testimony, but 
because it allegedly conflicted with the petition. 

RR al 

753 FEDERAL REPORTER, 2d SERIES 

cisms.® A proper understanding of statis. 
tical methods shows, however, that these 
are not serious shortcomings in the Baldysg - 
Study. 

The district court mistrusted smaller 
models because it placed too much weight 
on one of the several complementary goals 
of statistical analysis. Dr. Baldus testified 
that in his opinion the 39-variable mode] 
was the best among the many models he 

produced. The district court assumed 

somewhat mechanistically that the more 
independent variables encompassed by a 
model, the better able it was to estimate 
the proper influence of non-racial factors. 

But in statistical models, bigger is not al- 

ways better. After a certain point, addi 
tional independent variables become correl- 
ated with variables already being con- 

sidered and distort or suppress their infly- 

ence. The most accurate models strike an 

appropriate balance between the risk of 
omitting a significant factor and the risk of 

multicollinearity. Hence, the district court 

erred in rejecting all but the largest mod- 
els. 

- 

The other two criticisms mentioned earli- 
er spring from a single source—the misin- 
terpretation of the R? measurement.? 
The failure of the models to capture every 

nuance of every case was an inevitable but 

harmless failure. Regression analysis ac- 

counts for this limitation with an R 2 meas- 
urement. As a result, it does not matter 

er's other theory that multicollinearity affects 
statistical significance. 580 F.Supp. at 364. 
The two theories are not inconsistent, for nei- 
ther Dr. Baldus nor Dr. Woodworth denied that 
multicollinearity might have multiple effects. 
The two theories each analyze one possible ef- 
fect. Therefore, the district court rejected this 
testimony on improper grounds. 

24. The R? measurement represents the influ- 
ence of random factors unique to each case that 
could not be captured by addition of another 
independent variable. As R2 approaches a val- 
ue of 1.0, one can be more sure that the inde- 
pendent variables already identified are accu- 
rate and that no significant influences are mas- 
querading as random influences. 

25. See, e.g., pp- 896, 899. 

26. See footnote 24.    



RIES 

per understanding of statis- 
khows, however, that these 

shortcomings in the Baldus* 

court mistrusted smaller 

it placed too much weight 

everal complementary goals 

halysis. Dr. Baldus testified 

inion the 39-variable model 

imong the many models he 

e district court assumed 

hanistically that the more 
hriables encompassed by a 

er able it was to estimate 

uence of non-racial factors. 

al models, bigger is not al- 

After a certain point, addi 

ent variables become correl- 

iables already being con- 

tort or suppress their influ- 

it accurate models strike an 

lance between the risk of 

ificant factor and the risk of 

y. Hence, the district court 

ng all but the largest mod- 

o criticisms mentioned earli- 

a single source—the misin- 

f the R? measurement. 

the models to capture every 

case was an inevitable but 
re. Regression analysis ac- 

limitation with an R 2 meas- 
a result, it does not matter 

ry that multicollinearity affects 
ificance. 580 F.Supp. at 364. 
es are not inconsistent, for nei- 

t nor Dr. Woodworth denied that 
y might have multiple effects. 
es each analyze one possible ef- 
e, the district court rejected this 
proper grounds. 

asurement represents the influ- 
factors unique to each case that 
aptured by addition of another 

hriable. As RZ approaches a val- 
can be more sure that the inde- 
bles already identified are accu- 
lo significant influences are mas- 
andom influences. 

“@ 
24.   

McCLESKEY v. KEMP 917 
Cite as 753 F.2d 877 (1985) 

that a study fails to consider every nuance 
of every case because random factors (fac- 

tors that influence the outcome in a sporad- 

ic and unsystematic way) do not impugn 

the reliability of the systemwide factors 
already identified, including race of the vie- 

tim. Failure to consider extra factors be- 

comes a problem only where they operate 

throughout the system, that is, where R 2 is 

inappropriately low. 

The district court did find that the R 2 of 
the 230-variable study, which was near- 
ly .48, was too low.2?” But an R? of that 
sizé 1s not inappropriately low in every 
context. The R? measures random fac- 
tors unique to each case: in areas where 

such factors are especially likely to occur, 

one would expect a low R2 As the ex- 

perts, the district court and the majority 

have pointed out, no two death penalty 

cases can be said to be exactly alike, and it 

is especially unlikely for a statistical study 

to capture every influence on a sentence. 

In light of the random factors at work in 

the death penalty context, the district court 

erred in finding the R? of all the Baldus 

Study models too low.? 

Errors of this sort appear elsewhere in 

the district court opinion and leave me with 
the definite and firm conviction that the 

basis for the district court's ruling on the 
invalidity of the study was clearly errone- 
olis. United States v. Gypsum Co., 333 
U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 
746 (1948). This statistical analysis, while 

imperfect, is sufficiently complete and reli- 

able to serve as competent evidence to 

guide the court. Accordingly, I would re- 

verse the judgment of the district court 

27. It based that finding on the fact that a model 
with an R2 less than .5 “does not predict the 
outcome in half of the cases.” This is an inac- 
curate statement, for an R 2 actually represents 

the percentage of the original 11-to-1 differen- 
tial explained by all the independent variables 
combined. A model with an R 2 of less than .5 
would not necessarily fail to predict the out- 
come in half the cases because the model im- 
proves upon pure chance as a way of correctly 
predicting an outcome. For dichotomous out- 
comes (i.e. the death penalty is imposed or it is 
not), random predictions could succeed half the 
time. 

with regard to the validity of the Baldus 
Study. I would also reverse that court’s 

determination that an Eighth Amendment 

claim is not available to the petitioner. He 

is entitled to relief on this claim. 

IV. OTHER ISSUES . 

I concur in the opinion of the court with 

regard to the death-oriented jury claim and 

in the result reached by the court on the 

ineffective assistance of counsel claim. I 

must dissent, however, on the two remain- 

ing issues in the case. I disagree with the 
holding on the Giglio issue, on the basis of 

the findings and conclusions of the district 
court and the dissenting opinion of Chief 

Judge Godbold. As for the Sandstrom 

claim, I would hold that the instruction was 

erroneous and that the error was not harm- 

less. : 

It is by no means certain that an error of 

this sort can be harmless. See Connecti- 

cut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 

74 L.Ed.2d 823 (1983). Even if an error 

could be harmless, the fact that McCleskey 
relied on an alibi defense does not mean . 

that intent was “not at issue” in the case. 

Any element of a crime can be at issue 

whether or not the defendant presents evi- 

dence that disputes the prosecution’s case 

on that point. The jury could find that the 

prosecution had failed to dispel all reason- 

able doubts with regard to intent even 

though the defendant did not specifically 

make such an argument. Intent is at issue 

wherever there is evidence to support a 

reasonable doubt in the mind of a reason- 

able juror as to the existence of criminal 

intent. See Lamb v. Jernigan, 683 F.2d 

28. Wilkins v. University of Houston, 654 F.2d 

388, 405 (5th Cir.1981), is not to the contrary. 

That court stated only that it could not know 
whether an R 2 of .52 or .53 percent would be 
inappropriately low in that context since the 
parties had not made any argument on the is- 
sue. 

29. Furthermore, an expert for the petitioner of- 
fered the unchallenged opinion that the R2 - 
measurements in studies of dichotomous out- 
comes are understated by as much as 50%, 
placing the R 2 values of the Baldus Study mod- 
els somewhere between .7 and .9.  



918 

1332, 1342-43 (11th Cir.1982) (“no reason- 

able juror could have determined ... that 

appellant acted out of provocation or self- 

defense,” therefore error was harmless). 

The majority states that the raising of an 

alibi defense does not automatically render 

a Sandstrom violation harmless. It con- 

cludes, however, that the raising of a non- 

participation defense coupled with “over- 

whelming evidence of an intentional kill- 

ing” will lead to a finding of harmless 

error. The majority's position is indistin- 

guishable from a finding of harmless error 

based solely on overwhelming evidence. 

Since a defendant normally may not relieve 

the jury of its responsibility to make factu- 

al findings regarding every element of an 

offense, the only way for intent to be “not 

at issue” in a murder trial is if the evidence 

presented by either side provides no possi- 

ble issue of fact with regard to intent. 

Thus, McCleskey’s chosen defense in this 

case should not obscure the sole basis for 

the disagreement between the majority and 

myself: the reasonable inferences that 

could be drawn from the circumstances of 

"the killing. I cannot agree with the majori- 

ty that no juror, based on any reasonable 

interpretation of the facts, could have had 

a reasonable doubt regarding intent. 

Several factors in this case bear on the 

issue of intent. The shooting did not occur 

at point-blank range. Furthermore, the of- 

ficer was moving at the time of the shoot- 

ing. On the basis of these facts and other 

circumstances of the shooting, a juror 

could have had a reasonable doubt as to 

whether the person firing the weapon in- 

tended to kill. While the majority dismiss- 

es this possibility as “mere speculation,” 

the law requires an appellate court to spec- 

ulate about what a reasonable juror could 

30. Indeed, the entire harmless error analysis 

employed by the court may be based on a false 

dichotomy between “overwhelming evidence” 

and elements “not at issue.” Wherever intent is 

an element of a crime, it can only be removed 

as an issue by overwhelming evidence. The 

observation by the plurality in Connecticut v. 

Johnson, supra, that a defendant may in some 

cases “admit” an issue, should only apply where 

the evidence allows only one conclusion. To 

allow an admission to take place in the face of 

753 FEDERAL REPORTER, 2d SERIES 

have concluded. Sandstrom v. Montana, 
442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 

(1979); United States v. Bell, 678 F.2d 547, 

549 (5th Cir. Unit B 1982) (en banc), aff'd 

on other grounds, 462 U.S. 356, 103 S.Ct. 

2398, 76 L.Ed.2d 638 (1983). Therefore, the 

judgment of the district court should be 

reversed on this ground, as well. 
a 

HATCHETT, @ircuit Judge, dissenting in 
part, and concurring in part: 

In this case, the Georgia system of im- 

posing the death penalty is shown to be 

unconstitutional. Although the Georgia 

death penalty statutory scheme was held 

constitutional “on its face” in Gregg wv. 

Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 

LEd2d 859 (1976), application of the 

scheme produces death sentences explaina- 

ble only on the basis of the race of the 

defendant and the race of the victim. 

I write to state clearly and simply, with- 

out the jargon of the statisticians, the re- 

sults produced by the application of the 

Georgia statutory death penalty scheme, as 

shown by the Baldus Study. 

The Baldus Study is valid. The study 
was designed to answer the questions | 

when, if ever, and how much, if at all, race 

is a factor in the decision to impose the 

death penalty in Georgia. The study gives 

the answers: In Georgia, when the defend- 

ant is black and the victim of murder is 

white, a 6 percent greater chance exists 
that the defendant will receive the death 
penalty solely because the victim is white. 

This 6 percent disparity is present through- 

out the total range of death-sentenced 

black defendants in Georgia. While the 6 
percent is troublesome, it is the disparity in 
the mid-range on which I focus. When 

evidence to the contrary improperly infringes 
on the jury's duty to consider all relevant evi- 
dence. 

1. Although I concur with the majority opinion 
on the ineffective assistance of counsel and 
death-oriented jury issues, I write separately to 
express my thoughts on the Baldus Study. 

I also join Chief Judge Godbold's dissent, as to 

the Giglio issue, and Judge Johnson's dissent.   
 



{ oJ 

. Sandstrom v. Montana, 

9 S.Ct. 2450, 61 L.Ed.2d 39 

States v. Bell, 678 F.2d 547, 

nit B 1982) (en banc), aff’d 

ds, 462 U.S. 356, 103 S.Ct. 

d 638 (1983). Therefore, the 

e district court should be 
s ground, as well. 

Circuit Judge, dissenting in 

rring in part: ! 

the Georgia system of im- 
h penalty is shown to be 

Although the Georgia 

statutory scheme was held 

on its face” in Gregg wv. 

S. 153, 96 S.Ct. 2909, 49 
1976), application of the 

s death sentences explaina- 

b basis of the race of the 

he race of the victim. 

te clearly and simply, with- 

of the statisticians, the re- 

by the application of the 

death penalty scheme, as 

aldus Study. 

ptudy is valid. The study 
to answer the questions 

d how much, if at all, race 

e decision to impose the 

Georgia. The study gives 

Georgia, when the defend- 

d the victim of murder is 

bent greater chance exists 

ant will receive the death 

ecause the victim is white. 
isparity is present through- 

range of death-sentenced 

in Georgia. While the 6 

esome, it is the disparity in 

bn which 1 focus. When 

contrary improperly infringes 

y to consider all relevant evi- 

cur with the majority opinion 
e assistance of counsel and 

ry issues, I write separately to 
thts on the Baldus Study. 

Judge Godbold’s dissent, as to 
"@® Johnson's dissent.   

McCLESKEY v. KEMP 919 

Cite as 753 F.2d 877 (1985) 

cases are considered which fall in the mid- 

range, between less serious and very seri- 

ous aggravating circumstances, where the 

victim is white, the black defendant has a 

20 percent greater chance of receiving the 
death penalty because the victim is white, 
rather than black. This is intolerable; it is 

in this middle range of cases that the deci- 

sion on the proper sentence is most diffi- 

cult and imposition of the death penalty 

most questionable. 

The disparity shown by the study arises 

from a variety of statistical analyses made 

by Dr. Baldus and his colleagues. First, 

Baldus tried to determine the effect of race 

of the victim in 594 cases (PRS study) 

comprising all persons convicted of murder 

during a particular period. To obtain bet- 

ter results, consistent with techniques ap- 

proved by the National Academy of Sci- 
ences, Baldus identified 2,500 cases in 

which persons were indicted for murder 
during a particular period and studied 

closely 1,066 of those cases. He identified 

500 factors, bits of information, about the 
defendant, the crime, and other circum- 

stances surrounding each case_which he 

thought had some impact on a death sen- 

tence determination. Additionally, he _fo- 

cused on 230 of these factors which he 
thought most reflected the relevant consid- 
erations in a death penalty decision. 
Through this 230-factor model, the study 
proved that black defendants indicted and 

convicted for murder of a white victim be- 

gin the penalty stage of trial with a signifi- 

cantly greater probability of receiving the 

death penalty, solely because the victim is 

white. 

Baldus also observed thirty-nine factors, 

including information on aggravating cir- 

cumstances, which match the circumstanc- 

es in this case. This focused study of the 

aggravating circumstances in the mid- 

range of severity indicated that “white vic- 

tim crimes were shown to be 20 percent 

more likely to result in a death penalty 

sentence than equally aggravated black vie- 

tim crimes.” Majority at 896. 

2. Nothing in the majority opinion regarding the 

validity, impact, or constitutional significance 

We must not lose sight of the fact that) 

the 39-factor model considers information 

relevant to the impact of the decisions be- 

ing made by law enforcement officers, 

prosecutors, judges, and juries in the deci- | 

sion to impose the death penalty. The ma- 

jority suggests that if such a disparity re- 

sulted from an identifiable actor or agency 

in the prosecution and sentencing process, 

the present 20 percent racial disparity 

could be great enough to declare the Geor- 
gia system unconstitutional under the 

eighth amendment. Because this disparity 

is not considered great enough to satisfy 

the majority, or because. no identification of 

arf actor or agency can be made with preci- 

sion, the majority holds that the statutory 
scheme _is_approved by the Constitution. 
Identified or unidentified, the result of the 

unconstitutional ingredient of race, at a 

significant level in the system, 1s the same 

on the black defendant. The ability to 

identify the actor or agency has little to do 

with the constitutionality of the system. 

The 20 percent greater chance in the 

mid-range cases (because the defendant is 

black and the victim is white), produces a 

disparity that is too high. The study dem- 
onstrates that the 20 percent disparity, in 

the Teal world, means that one-third of the 

black defendants (with white victims) in the 

mid-range cases will be affected by the 

race factor in receiving the death penalty. 

Race should not be allowed to take a signif- 

icant role in the decision to impose the 

death penalty. 

The Supreme Court has reminded us on 

more than one occasion that “if a state 

wishes to authorize capital punishment it 

has a constitutional responsibility to tailor 

and apply its law in a manner that avoids 

the arbitrary and capricious infliction of 

the death penalty.” Godfrey v. Georgia, 

446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 

L.Ed.2d 398 (1980). A statute that inten- 

tionally or unintentionally allows for such 

racial effects is unconstitutional under the 

eighth amendment. Because the majority 

holds otherwise, I dissent.? 

of studies on discrimination in application of 
the Florida death penalty scheme should be   

  

 



920 

CLARK, Circuit Judge, dissenting in part 

and concurring in part *: 

We are challenged to determine how 

much racial discrimination, if any, is tolera- 

ble in the imposition of the death penalty. 

Although I also join in Judge Johnson’s 

dissent, this dissent is directed to the ma- 

jority’s erroneous conclusion that the evi- 

dence in this case does not establish a 

prima facie Fourteenth Amendment viola- 

tion. 

The Study 

{The Baldus study, which covers the peri- 

fod 1974 to 1979, is a detailed study of over 

| 2,400_homicide cases. From these homi- 

cides, 128 persons received the death penal: 

ty. Two types of racial disparity are estab- 

Tished—one based on the race of the victim 

and one based on the race of the defendant. 

If the victim is white, a defendant is more 

likely to receive the death penalty. If the 

defendant is black, he is more likely to 

receive the death penalty. One can only 

conclude that in the operation of this sys- 

753 FEDERAL REPORTER, 2d SERIES 

tem the life of a white is dearer, the life of 

a black cheaper. 

Before looking at a few of the figures, a 

perspective is necessary. Race is a factor | 

in the system only where there is room for | 

discretion, that is, where the decision mak- | 

er has a viable choice. In the large number | 

of cases, race has no effect. These are | 

«5Ses where the Tacts are so mitigated the | 

death penalty is not even considered as al 

possible punishment. At the other end of | 

the spectrum are the tremendously aggra- } 

vated murder cases where the defendant | 

will very probably receive the death penal- | 

ty, regardless of his race or the race of the | 

victim. In between is the mid-range of 

cases where there is an approximately 20% 

racial disparity. ’ 

The Baldus study was designed to deter- 

mine whether like situated cases are treat 

ed similarly. As a starting point, an unan- 

alyzed arithmetic comparison of all of the 

cases reflected the following: 

{ 

J 

Death Sentencing Rates by Defendant/ 

Victim Racial Combination’ 
  

A B 

Black Defendant/ White Defendant/ 

White Victim White Victim 

22 08 

(50/228) (58/745) 

  

  

Ar 1 | 

(108/973) 

These figures show a gross disparate racial 

impact—that where the victim was white 

there were 11% death sentences, compared 

to only 1.3 percent death sentences when 

construed to imply that the United States Su- 

preme Court has squarely passed on the Florida 

studies. Neither the Supreme Court nor the 

Eleventh Circuit has passed on the Florida stud- 

ies, on a fully developed record (as in this case), 

under fourteenth and eighth amendment chal- 

lenges. 

* Although I concur with the majority opinion on 

the ineffective assistance of counsel and death 

c D 

Black Defendant/ White Defendant/ 

Black Victim Black Victim 

01 .03 

(18/1438) (2/64) 

  

  

013 

(20/1502) 

the victim was black. Similarly, only 8% of 

white defendants compared to 22% of black 

defendants received the death penalty 

when the victim was white. The Supreme 

oriented jury issues, I write separately to ex- 

press my thoughts on the Baldus Study. I also 

join Chief Judge Godbold's dissent and Judge 

Johnson's dissent. 

1. DB Exhibit 63.   
  

   



S 

hite is dearer, the life of 

at a few of the figures, a 

essary. Race is a factor 

ly where there is room for 

, where the decision mak- 

pice. In the large number 

as no effect. These are 

facts are so mitigated the 
not even considered as a 

ent. At the other end of 

the tremendously aggra- 

ses where the defendant 

y receive the death penal- 
his race or the race of the 

een is the mid-range of 

le is an approximately 20% 

idy was designed to deter- 
e situated cases are treat- 

a starting point, an unan- 

comparison of all of the 

e following: 

D 

White Defendant/ : 

Black Victim 

03 
(2/64) 

  

lack. Similarly, only 8% of 
compared to 22% of black 

cived the death penalty 

was white. The Supreme 

ues, 1 write separately to ex- 
ts on the Baldus Study. I also 

. Godbold's dissent and Judge 

tf.     

McCLESKEY v. KEMP 921 
Cite as 753 F.2d 877 (1985) 

Court has found similar gross disparities to 

be sufficient proof of discrimination to sup- 

port a Fourteenth Amendment violation.? 

The Baldus study undertook to deter- 

mine if this racial sentencing disparity was 

caused py considerations of race or because 

of other factors or both. In order to find 

out, it was necessary to analyze and com- 

pare each of the potential death penalty 

cases and ascertain what relevant factors 

were available for consideration by the de- 

cision makers.® There were many factors 

such as prior capital record, contemporane- 

ous offense, motive, killing to avoid arrest 

or for hire, as well as race. The study 

J showed that race had as much or more 

| impact than any other single factor. See 

Exhibits DB 76-78, T-716-81. Stated an- 
, other way, race influences the verdict just 

2. See discussion below at Page 9. ; 

3. An individualized method of sentencing makes 

it possible to differentiate each particular case 

“in an objective, evenhanded, and substantially 

rational way from the many Georgia murder 

as much as any one of the aggravating) 

circumstances listed in Georgia's death 

penalty statute.! Therefore, in the applica- 

tion of the statute in Georgia, race of the 
defendant and of the victim, when it is 

black/white, functions as if it were an ag- 
gravating circumstance in a discernible 
number of cases. See Zant v. Stephens, 
462 U.S. 862, 103 S.Ct. 2733, 2747, 17 
L.Ed.2d 235 (1983) (race as an aggravating 

circumstance would be constitutionally im- 

permissible). 

Another part of the study compared the 

disparities in death penalty sentencing ac- 

cording to race of the defendant and race 

of the victim and reflected the differences 

in the sentencing depending upon the pre- 

dicted chance of death, i.e, whether the 

type of case was or was not one where the 

death penalty would be given. : 

cases in which the death penalty may not be 

imposed.” Zant v. Stephens, 462 U.S. 862, 103 
S.Ct. 2733, 77 1.Ed.2d 235, 251. 

4. 0O.C.G.A. § 17-10-30. 

 



 
 

Tr. pages 

DB, Ex. 915 Table 43 

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5. The eight sub-groups were derived from the 

 



    

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of black defendants to white defendants 

when the victim is white and reflect that in 

Steps 1 and 2 no death penalty was given in 
those 41 cases. In Step 8, 45 death penal- 

ties were given in 50 cases, only two blacks 
and three whites escaping the death penal- 
ty—this group obviously representing the 

most aggravated cases. By comparing 

Steps 3 through 7, one can see that in each 

group black defendants received death pen- 

alties disproportionately to white defend- 

ants by differences of .27, .19, .15, .22, 

and .25. This indicates that unless the 

murder is so vile as to almost certainly 

evoke the death penalty (Step 8), blacks are 

approximately 20% more likely to get the 
death penalty. 

The right side-of the chart reflects how 

unlikely it is that any defendant but more 
particularly white defendants, will receive 

L the death penalty when the victim is black. 

Statistics as Proof 

The jury selection cases have utilized dif- 

ferent methods of statistical analysis in 

determining whether a disparity is suffi- 

cient to establish a prima facie case of 

purposeful discrimination.® Early jury se- 
lection cases, such as Swain v. Alabama, 

used very simple equations which primarily 

analyzed the difference of minorities eligi- 

ble for jury duty from the actual number 

6. In Villafane v. Manson, 504 F.Supp. 78 

(D.Conn.1980), the court noted that four forms 
of analysis have been used: (1) the absolute 
difference test used in Swain v. Alabama, 380 
U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); (2) 

the ratio approach; (3) a test that moves away 
from the examination of percentages and focus- 
es on the differences caused by underrepresen- 
tation in each jury; and (4) the statistical deci- 
sion theory which was fully embraced in Cas- 
taneda v. Partida, 430 U.S. at 496 n. 17, 97 S.Ct. 
at 1281 n. 17. See also Finkelstein, The Applica- 

tion of Statistical Decision Theory to the Jury 
Discrimination Cases, 80 Harv.L.Rev. 338 
(1966). 

7. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 
824, 13 L.Ed.2d 759 (1965); Villafane v. Man- 
son, 504 F.Supp. at 83. 

8. See Finkelstein, The Application of Statistical 
Decision Theory to the Jury Discrimination 
Cases, 80 Harv.L.Rev. 338, 363 (1966) (“The 

Court did not reach these problems in Swain 

  

   . McCLESKEY v. KEMP 923 
Cite as 753 F.2d 877 (1985) 

of minorities who served on the jury to 
determine if a disparity amounted to a sub- 
stantial underrepresentation of minority 

jurors.” Because this simple method did 
not consider many variables in its equation, 

it was not as accurate as the complex sta- 

tistical equations widely used today.? 

The mathematical disparities that have 

been accepted by the Court as adequate to 

establish a prima facie case of purposeful 

discrimination range approximately from 

14% to 40%. ‘Whether or not greater 
disparities constitute prima facie evidence 

of discrimination depends upon the facts of 
each case.” 1° 

Statistical disparities in jury selection 

cases are not sufficiently comparable to 
provide a complete analogy. There are no 

guidelines in decided cases so in this case 

we have to rely on reason. We start with a 

sentencing procedure that has been ap- 

proved by the Supreme Court.) The object 
of this system, as well as any constitution- 

ally permissible capital sentencing system, 

is to provide individualized treatment of 

those eligible for the death penalty to in- 

sure that non-relevant factors, i.e. factors 

that do not relate to this particular individ- 

ual or the crime committed, play no part in 

deciding who does and who does not re- 

ceive the death penalty.?? The facts dis- 

because of its inability to assess the significance 
of statistical data without mathematical tools.”). 

9. Castaneda v. Partida, 430 U.S. at 495-96, 97 

S.Ct. at 1280-82 (disparity of 40%); Turner v. 
Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 

567 (1970) (disparity of 23%); Whitus v. Geor- 
gia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 

(1967) (disparity of 18%); Sims v. Georgia, 389 
U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) 

(disparity of 19.7%); Jones v. Georgia, 389 U.S. 
24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) (disparity of 
14.7%). These figures result from the computa- 
tion used in Swain. 

10. United States ex rel Barksdale v. Blackburn, 
639 F.2d 1115, 1122 (5th Cir.1981) (en banc). 

11. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 

49 L.Ed.2d 859 (1976). 

12. The sentencing body's decision must be fo- 
cused on the “particularized nature of the crime 
and the particularized characteristics of the in-    

      

   
    
   
   
   

    

   

    
   
   

    

   
    

    

    

    

  

   

  

   
    

   

   

    
    

    
   
   
   
   
    

    

    
    

C
a
 

  

      
     
       
    



924 

closed by the Baldus study, some of which 

have been previously discussed, demon- 

strate that there is sufficient disparate 
treatment of blacks to establish a prima 
facie case of discrimination. 

This discrimination, when coupled with 

the historical facts, demonstrate a prima 

facie Fourteenth Amendment violation of 

the Equal Protection Clause. It is that 

discrimination against which the Equal Pro- 

tection Clause stands to protect. The ma- 

jority, however, fails to give full reach to 

our Constitution. While one has to ac- 

knowledge the existence of prejudice in our 

society, one cannot and does not accept its 

application in certain contexts. This is no- 

where more true than in the administration 

of criminal justice in capitai cases. 

The Fourteenth Amendment and 

Equal Protection 

“A showing of intent has long been re- 

quired in all types of equal protection 

cases charging racial discrimination.” 13 

The Court has required proof of intent 

before it will strictly scrutinize the actions 

of a legislature or any official entity.’ In 
this respect, the intent rule is a tool of 

self-restraint that serves the purpose of 

limiting judicial review and policymaking .!s 

The intent test is not a monolithic struc- 

ture. As with all legal tests, its focus will 

dividual defendant.” 428 U.S. at 206, 96 S.Ct. at 
2940. See also Lockett v. Ohio, 438 U.S. 586, 98 

S.Ct. 2954, 57 L.Ed.2d 973 (1978) (“the need for 

treating each defendant in a capital case with 
degree of respect due the uniqueness of the 
individual is far more important than in non- 
capital cases.” 438 U.S. at 605,98 S.Ct. at 2965); 

Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 

869, 71 L.Ed.2d 1 does focus on a characteristic 
of the particular defendant, albeit an impermis- 
sible one. See infra. p. 3. 

13. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 

3276, 73 L.Ed.2d 1012 (1982). 

14. Jd. at n. 5 (“Purposeful racial discrimination 

invokes the strictest scrutiny of adverse differ- 
ential treatment. Absent such purpose, differ- 
ential impact is subject only to the test of ration- 
ality.”); see also Sellers, The Impact of Intent on 
Equal Protection Jurisprudence, 84 Dick.L.Rev. 
363, 377 (1979) (“the rule of intent profoundly 

affects the Supreme Court's posture toward 
equal protection claims.”). 

753 FEDERAL REPORTER, 2d SERIES 

vary with the legal context in which it ig 
applied. Because of the variety of situa. 

~ tions in which discrimination can occur, the 

method of proving intent is the critical fo. 
cus. The majority, by failing to recognize 

this, misconceives the meaning of intent ip 
the context of equal protection jurispru- 

dence. 

Intent may be proven circumstantially by 

utilizing a variety of objective factors and 

can be inferred from the totality of the 
relevant facts.’® The factors most appro- 
priate in this case are: (1) the presence of 

historical discrimination; and (2) the im- 

pact, as shown by the Baldus study, that 

the capital sentencing law has on a suspect 

class.” The Supreme Court has indicated 
that: 

Evidence of historical discrimination is 

relevant to drawing an inference of pur- 

poseful discrimination, particularly 

where the evidence shows that discrimi- 

natory practices were commonly utilized, 

that they were abandoned when enjoined 

by courts or made illegal by civil rights 

legislation, and that they were replaced 

by laws and practices which, though neu- 

tral on their face, serve to maintain the 

status quo.!® 

Evidence of disparate impact may dem- 

onsthate that an unconstitutional purpose 

15. The intent rule “serves a countervailing con- 
cern of limiting judicial policy making. Wash- 
ington v. Davis can be understood ... as a 
reflection of the Court's own sense of institu- 
tional self-restraint—a limitation on the power 
of judicial review that avoids having the Court 
sit as a super legislature....” Note, Section 
1981: Discriminatory Purpose or Disproportion- 
ate Impact, 80 Colum.L.R. 137, 160-61 (1980); 

see also Washington v. Davis, 426 U.S. 229, 247- 

48, 84 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). 

16. See Village of Arlington Heights v. Metropoli- 
tan Housing Development Corp., 429 U.S. 252, 
266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). 

17. Id See also Rogers v. Lodge, 102 S.Ct. at 
3280. 

18. Rogers v. Lodge, 102 S.Ct. at 3280.    



ERIES 

P legal context in which it is 
Ruse of the variety of situa- 
discrimination can occur, the 

pving intent is the critical fo- 
ority, by failing to recognize 
ives the meaning of intent in 
pf equal protection jurispru- 

Dé proven circumstantially by 
iety of objective factors and 
ed from the totality of the 
® The factors most appro- 
ase are: (1) the presence of 
imination; and (2) the im- 
by the Baldus study, that 

encing law has on a suspect 
upreme Court has indicated 

historical discrimination is 
rawing an inference of pur- 
imination, particularly 
fidence shows that discrimi. 
€s were commonly utilized, 
e abandoned when enjoined 
made illegal by civil rights 
d that they were replaced 

practices which, though neu- 
face, serve to maintain the 

lisparate impact may dem- 
n unconstitutional purpose 

le “serves a countervailing con- 
judicial policy making. Wash- 
can be understood ... as a 
Court’s own sense of institu. 
nt—a limitation on the power 

po that avoids having the Court 
egislature....” Note, Section 
tory Purpose or Disproportion- 
olum.L.R. 137, 160-61 (1980); 
on v. Davis, 426 U.S. 229, 247- 
2051, 48 L.Ed.2d 597 (1976). 

Arlington Heights v. Metropoli- 
lopment Corp., 429 US. 252, 

, 564, 50 L.Ed.2d 450 (1977). 

[{ogers v. Lodge, 102 S.Ct. at 

r, 102 S.Ct. at 3280.     

McCLESKEY v. KEMP 925 
Cite as 753 F.2d 877 (1985) 

may continue to be at work, especially 
where the discrimination is not explainable 
on non-racial grounds.’ Table 43, supra 
P- 4, the table and the accompanying evi- 
dence leave unexplained the. 20% racial dis- 
parity where the defendant is black and the 
victim is white and the murders occurred 
under very similar circumstances. 
Although the Court has rarely found the 

existence of intent where disproportionate 
impact is the only proof, it has, for exam- 
ple, relaxed the standard of proof in jury 
selection cases because of the “nature” of 
the task involved in the selection of jur- 
ors.? Thus, to show an equal protection 
violation in the jury selection cases, a de- 
fendant must prove that “the procedure 
employed resulted in a substantial under- 
representation of his race or of the identifi- 
able group to which he belongs.” 2! The 
idea behind this method is simple. As the 
Court pointed out, “[i)f a disparity is suffi- 
ciently large, then it is unlikely that it is 
due solely to chance or accident, and, in the 
absence of evidence to the contrary, one 
must conclude that racial or other class-re- 
lated factors entered into the selection pro- 
cess.” 2 Once there is a showing of a 
substantial underrepresentation of the de- 

19. In Washington v. Davis, 426 U.S. at 242, 96 
S.Ct. at 2049, the Court stated: “It is also not 
infrequently true that the discriminatory impact 

. may for all practical purposes demonstrate 
unconstitutionality because in various circum- 
stances the discrimination is very difficult to 
explain on nonracial grounds.” See also Person- 
nel Administrator of Mass. v. Feeny, 442 U.S. 
256, 99 S.Ct. 2282, 2296 n. 24, 60 L.Ed.2d 870 
(1979) (Washington and Arlington recognize that 
when a neutral law has a disparate impact upon 
a group that has historically been a victim of 
discrimination, an unconstitutional purpose 
may still be at work). 

20. Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. at 267 n. 
13, 97 S.Ct. at 564 n. 13 (“Because of the nature 
of the jury-selection task, however, we have 
permitted a finding of constitutional violation 
even when the statistical pattern does not ap- 
proach the extremes of Yick Wo [118 US. 356, 6 
S.Ct. 1064, 30 L.Ed. 220] or Gomillion [364 U.S. 
339, 81 S.Ct. 125, 5 L.Ed.2d 110]"); see also 
International Bro. of Teamsters v. United States, 
431 US. 324, 339, 97 S.Ct. 1843, 1856, 52 
L.Ed.2d 396 (1977) (“We have repeatedly ap- 
proved the use of statistical proof ... to estab- 

fendant’s group, a prima facie case of dis- 
criminatory intent or purpose is established 
and the state acquires the burden of rebut- 
ting the case.? 

In many respects the imposition of the 
death penalty is similar to the selection of 
jurors in that both processes are discretion- 
ary in nature, vulnerable to the bias of the 
decision maker, and susceptible to a rigor- 
ous statistical analysis. 

The Court has refrained from relaxing 
the standard of proof where the case does 
not involve the selection of jurors because 
of its policy of: (1) deferring to the reason 
able acts of administrators and executives; 
and (2) preventing the questioning of tax, 
welfare, public service, regulatory, and Ii 
censing statutes where disparate impact is 
the only proof.” However, utilizing the 
standards of proof in the jury selection 
cases to establish intent in this case will 
not contravene this policy because: (1) def- - 
erence is not warranted where the penalty 
is grave and less severe alternatives are 
available; and (2) the court did not contem- 
plate capital sentencing statutes when it 
established this policy. Thus, statistics 
alone could be utilized to prove intent in 
this case. But historical background is 

lish a prima facie case of racial discrimination 
in jury selection cases.”). 

21. Castaneda v. Partida, 430 U.S. 482, 494, 97 
S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). 

22. Id atn 13. 

23. Jd. at 495, 97 S.Ct. at 1280. 

24. Joyner, Legal Theories for Attacking Racial 
Disparity in Sentencing, 18 Crim.L.Rep. 101, 
110-11 (1982) (“In many respects sentencing is 
similar to the selections of jury panels as in 
Castaneda”). The majority opinion notes that 
the Baldus study ignores quantitative difference 
in cases: “looks, age, personality, education, 
profession, job, clothes, demeanor, and re- 
morse...." Majority opinion at 62. However, 
it is these differences that often are used to 
mask, either intentionally or unintentionally, 
racial prejudice. 

25. See Washington v. Davis, 426 U.S. at 248, 96 
S.Ct. at 2051; Note, Section 1981: Discriminato- 
ry Purpose or Disproportionate Impact, 80 Co- 
lum.L.R. 137, 146-47 (1980).  



926 753 FEDERAL REPORTER, 2d SERIES 

also relevant and supports the statistical not been made, but as the Supreme Court 

conclusions. : in 1979 acknowledged, 

“Diseriminati A . we also cannot deny that, 114 years after 
iscrimination on the basis of race, odi ts close of the Wer between the States 

ous in all aspects, is especially pernicious in and nearly 100 years after Strauder [100 

the administration of Justice.” It is the yg 803, 25 L.Ed. 664] racial and other 
duty of the courts to see to it that through- forms of discrimination still remain a 

out the procedure for bringing a person to fact of life, in the administration of jus- 

justice, he shall enjoy “the protection which tice as in our society as a whole. Per- 

the Constitution guarantees.”?” In an im- haps today that discrimination takes a 

perfect society, one has to admit that it is form more subtle than before. But it is 

impossible to guarantee that the adminis- no less real or pernicious.® 

trators of justice, both judges and jurors, If discrimination is especially pernicious 

will successfully wear racial blinders in ev- in the administration of justice, it is no- 

ery case.” However, the risk of prejudice where more sinister and abhorrent than 

when it plays a part in the decision to 

impose society’s ultimate sanction, the pen 

Ee ii BR Te a alty of death." It is also a tragic fact th 

Discrimination against minorities in the this discrimination is very much a part of 

criminal justice system is well document the country’s experience with the death 

ed? This is not to say that progress has penalty.* Again and as the majority 

must be minimized and where clearly 

present eradicated. 

26. Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 

2993, 61 L.Ed.2d 739 (1979). 

27. Rose, supra, 443 US. at 557, 99 S.Ct. at 3000. 

28. As Robespierre contended almost 200 years 

ago: 

Even if you imagine the most perfect judicial 

system, even if you find the most upright and 

the most enlightened judges, you will still 

have to allow place for error or prejudice. 

Robespierre (G. Rude ed. 1967). 

29. See, e.g, Johnson v. Virginia, 373 U.S. 61, 83 

S.Ct. 1053, 10 L.Ed.2d 195 (1963) (invalidating 

segregated seating in courtrooms); Hamilton v. 

Alabama, 376 U.S. 650, 84 S.Ct. 982, 11 L.Ed.2d 

979 (1964) (conviction reversed when black de- 

fendant was racially demeaned on cross-exami- 

nation); Davis v. Mississippi, 394 U.S. 721, 89 

S.Ct. 1394, 22 L.Ed.2d 676 (1969) (mass finger- 

printing of young blacks in search of rape sus- 

pect overturned). See also Rose v. Mitchell, 

supra (racial discrimination in grand jury selec- 

tion); Rogers v. Britton, 476 F.Supp. 1036 (E.D. 

Ark.1979). A very recent and poignant example 

of racial discrimination in the criminal justice 

system can be found in the case of Bailey v. 

Vining, unpublished order, civ. act. no. 76-199 

(M.D.Ga.1978). In Bailey, the court declared 

the jury selection system in Putnam County, 

Georgia to be unconstitutional. The Office of 

the Solicitor sent the jury commissioners a 

memo demonstrating how they could underrep- 

resent blacks and women in traverse and grand 

juries but avoid a prima facie case of discrimi- 

nation because the percentage disparity would 

still be within the parameters of Supreme Court 

and Fifth Circuit case law. See notes 7-8 supra 

and relevant text. The result was that a limited 

number of blacks were handpicked by the jury 

commissioners for service. as 

30. Rose, supra, 443 U.S. at 558-59, 99 S.Ct. at 

3001. 

31. See, e.g, Furman v. Georgia, 408 U.S. 238,92 

S.Ct. 2726, 33 L.Ed.2d 346 (1972) (see especially 
the opinions of Douglas, J., concurring, id. at 

249-252, 92 S.Ct. at 2731-2733; Stewart, J., con- 

curring, id. at 309-310, 92 S.Ct. at 2762; Mar- 

shall, J., concurring, id. at 364-365, 92 S.Ct. at 

2790; Burger, C.J., dissenting, id. at 389-390 n. 

12, 92 S.Ct. at 2803-2804 n. 12; Powell, J., 

dissenting, id. at 449, 92 S.Ct. at 2833). 

32. This historical discrimination in the death 

penalty was pointed out by Justice Marshall in 

his concurring opinion in Furman, supra. 408 

U.S. at 364-65, 92 S.Ct. at 2790, “[i]ndeed a look 

at the bare statistics regarding executions is 

enough to betray much of the discrimination.” 

Id. See also footnote 32 for other opinions in 

Furman discussing racial discrimination and 

the death penalty. For example, between 1930 

and 1980, 3,863 persons were executed in the 

United States, 54% of those were blacks or 

members of minority groups. Of the 455 men 

executed for rape, 89.5% were black or minori- 

ties. Sarah T. Dike, Capital Punishment in the 

United States, p. 43 (1982). Of the 2,307 people 

executed in the South during that time period, 

1659 were black. During the same fifty-year 

period in Georgia, of the 366 people executed, 

298 were black. Fifty-eight blacks were exe- 

cuted for rape as opposed to only three whites. 

Six blacks were executed for armed robbery 

while no whites were. Hugh A. Bedau, ed., The 

Death Penalty in America (3rd ed. 1982).   
 



as Supreme Court 
ed, 

ny that, 114 years after 
ar between the States 

ars after Strauder [100 
. 664] racial and other 
ination still remain a 

e administration of jus- 
iety as a whole. Per- 
discrimination takes a 
than before. But it is 
rnicious.3? 

is especially pernicious 
on of justice, it is no- 
br and abhorrent than 
art in the decision to 
imate sanction, the pen- 

s also a tragic fact that 
s very much a part of 
rience with the death 
and as the majority 

ere handpicked by the jury 
ervice. : 

U.S. at 558-59, 99 S.Ct. at 

. Georgia, 408 U.S. 238, 92 
d 346 (1972) (see especially 
glas, J., concurring, id. at 
P731-2733; Stewart, J, con- 

10, 92 S.Ct. at 2762; Mar- 

id. at 364-365, 92 S.Ct. at 

issenting, id. at 389-390 n. 
3-2804 n. 12; Powell, J, 

, 92 S.Ct. at 2833). 

scrimination in the death 
out by Justice Marshall in 
on in Furman, supra. 408 
t. at 2790, “[i]lndeed a look 

s regarding executions is 
ch of the discrimination.” 

e 32 for other opinions in 
racial discrimination and 
or example, between 1930 
sons were executed in the 
of those were blacks or 

y groups. Of the 455 men 
p.5% were black or minori- 
Capital Punishment in the 
1982). Of the 2,307 people 
h during that time period, 
During the same fifty-year 
f the 366 people executed, 
fty-eight blacks were exe- 
bosed to only three whites. 
bcuted for armed robbery 
t. Hugh A. Bedau, ed., The 

erica (3rd ed. 1982).   

UNITED STATES v. CRUZ-VALDEZ : 927 
Cite as 753 F.2d 927 (1985) 

points out, the new post-Furman statutes 

have improved the situation but the Baldus 

study shows that race is still a very real 

factor in capital cases in Georgia. Some of 
this is conscious discrimination, some of it 

unconscious, but it is nonetheless real and 

it is important that we at least admit that 
discrimination is present. 

Finally, the state of Georgia also has no 

compelling interest to justify a death penal- 

ty system that discriminates on the basis of 

race. Hypothetically, if a racial bias re- 

flected itself randomly in 20% of the convie- 
tions, one would not abolish the criminal 

justice system. Ways of ridding the sys- 

tem of bias would be sought but absent a 

showing of bias in a given case, little else 

could be done. The societal imperative of 

maintaining a criminal justice system to 

apprehend, punish, and confine perpetra- 

tors of serious violations of the law would 

outweigh the mandate that race or other 

prejudice not infiltrate the legal process. 

In other words, we would have to accept 

that we are doing the best that can be done 

in a system that must be administered by 

people, with all their conscious and uncon- 

scious biases. 

However, such reasoning cannot sensibly 

be invoked and bias cannot be tolerated 
when considering the death penalty, a pun- 

ishment that is unique in its finality.3® The 

evidence in this case makes a prima facie 

case that the death penalty in Georgia is 

being applied disproportionately because of 

race. The percentage differentials are not 

de minimis. To allow the death penalty 

under such circumstances is to approve a 

racial preference in the most serious deci- 
sion our criminal justice system must 

make. This is a result our Constitution 

cannot tolerate. 

squarely face up to this choice and its 

consequences. Racial prejudice/preference 

both conscious and unconscious is still a 
part of the capital decision making process 

in Georgia. To allow this system to stand 

is to concede that in a certain number of 
cases, the consideration of race will be a 

33. See, e.g., Woodson v. North Carolina, 428 U.S. 

factor in the decision whether to impose 

the death penalty. The Equal Protection 

Clause of the Fourteenth Amendment does 

not allow this result. The decision of the 

district court on the Baldus issue should be 
reversed and the state required to submit 

evidence, if any is available, to disprove the 

prima facie case made by the plaintiff. 

O ¢ KEY NUMBER SYSTEM 

UNITED STATES of America, 
Plaintiff-Appellee, 

Vv. 

Pedro CRUZ-VALDEZ, Ruben Martin- 

Gonzalez, and Manuel Fortunado 

Ariza-Fuentes, Defendants-Appellants. 

- No. 82-5310. 

United States Court of Appeals, 

Eleventh Circuit. 

Jan. 30, 1985. 

McMaster & Forman, P.A, James D. 

McMaster, Miami, Fla., court appointed, for 

Cruz-Valdez. 

Linda L. Carroll, Miami, Fla., court ap- 

pointed, for Martin-Gonzalez. 

Margaret E. Retter, Asst. Federal Public 

Defender, Robyn J. Hermann, Deputy Fed- 

eral Public Defender, Miami, Fla., for Ari- 

za-Fuentes. 

Robert J. Bondi, Asst. U.S. Atty., Miami, 

Fla., for plaintiff-appellee. 

Appeals from the United States District 
Court for the Southern District of Florida; 
Joe Eaton, Judge. 

280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).  



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338 

care, is more than evident. (For an unsuc- 
cessful challenge to similar special laws 
dealing with provisional health needs, see: 
Benson v. Arizona State Bd. of Dental 
Examiners, 673 F.2d 272, 277-78 (9th Cir. 

1982). 

[5] Plaintiffs have chosen to rest on a 
roughly sketched constitutional claim based 
on repetitive incantations of the words 
“equal protection” and “due process” with- 
out making any references to any instanc- 
es, aside from those justified by the special 
laws which were not even in effect when 
many of them started their dental educa- 
tion. They have not even made a raw 
challenge to the Board's application of the 
statutory criteria for recognizing a dental 
school, a relatively simple task given the 
accessibility of the information needed to 
make a comparative analysis of the courses 
of study and professional recognition of the 
institutions that they attended with compa- 
rable items in the School of Odontology of 
the Medical Sciences Campus of the Uni- 
versity of Puerto Rico. The party opposing 
a motion for summary judgment cannot 
rest on the hope that the factual basis of 
broadly phrased pleadings will somehow 
emerge at trial without pointing to specific 
facts in the record which may still be in 
controversy and which are relevant to the 
outcome of the litigation. See: Emery v. 
Merrimack Valley Woods Products, Inc. 

701 F.2d 985, 990-93 (1st Cir.1983); Mane- 
go v. Cape Cod Five Cents Sav. Bank, 692 

F.2d 174, 176-77 (1st Cir.1982); Over The 

Road Drivers, Inc. v. Transport Insur- 

ance Co., 637 F.2d 816, 818 (1st Cir.1980). 

[6] Plaintiffs’ reference to Justice 
Mathew’s memorable phrase in Yick Wo v. 
Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 

1072, 30 L.Ed. 220% (1886) is a typical at- 
tempt to fuel a meritless cause of action 

with a general principle of constitutional 
law. That case and this one depend upon 
an entirely different state of facts. There, 

the appellant, Yick Wo, was deprived of a 
means of making a living at the mere will 

of the board of supervisors of the city of 

2. Though the law itself be fair on its face and 

impartial in appearance, yet, if it is applied and 
administered by public authority with an evil 
eye and an unequal hand, so as practically to 

580 FEDERAL SUPPLEMENT 

San Francisco which refused him and 200 

other Chinese subjects permission to carry 
on a laundry business while permitting, 30, 

others, not Chinese subjects, to. CILLY 3 

the same business under similar CONTIN, 
The Court concluded that no reason tod 

for the discrimination “except hostility to 

the race and nationality to which the peti- 

tioners belong, and which, in the eye of the 

law, is not justified.” Yick Wo at 373, 6 

S.Ct. at 1072. Here the Board’s rejection 

of plaintiffs’ petition to take the exams is 

based not on an application of law with an 

“evil eye and an unequal hand” but on 

their valid authority and in the exercise of 

their duty- to “comply with the legitimate 

interest of the Commotiwéalth of Puerto 
Rico in requiring that those that choose 

this jurisdiction to practice dentistry be ad- 
equately qualified. 

Plaintiffs having failed to establish even 

the semblance of a genuine controversy on 

material facts, see e.g... Mas Marques v. 

Digital Equipment Co., 637 F.2d 24 (1st 

Cir.1980), the undisputed facts before the 

Court compel, as a matter of law, that the 

complaint be dismissed. Judgment shall be 
entered accordingly. 

SO ORDERED. 

O ¢ KEY NUMBER SYSTEM 

Warren McCLESKEY, Petitioner, 

Vv. 

Walter D. ZANT, Respondent. 

Civ. A. No. C81-2434A. 

United States District Court, 

N.D. Georgia, 

Atlanta Division. 

Feb. 1, 1984. 

Habeas corpus petition was filed. The 

District Court, Forrester, J., held that: (1) 

make unjust and illegal discriminations between 
persons in similar circumstances, material to 

their rights, the denial of equal justice is still 
within the prohibition of the constitution.  



him and 200 

ion to carry 
rmitting 80 

0 carry on 

conditions. 
Son existed 

hostility to 

h the peti- 

t eye of the 

pb at 373, 6 
S rejection 

e exams is 

w with an 

H”’ but on 
bxercise of 

legitimate 
of Puerto 

at choose 

try be ad- 

blish even 

Oversy on 

hirques v. 

d 24 (1st 

efore the 

that the 

shall be 

Hl. The 

at: (1) 

between 

erial to 

is stil] 

McCLESKEY v. ZANT 339 
Cite as 580 F.Supp. 338 (1984) 

statistics on Georgia death penalty statute 
did not demonstrate prima facie case in 
support of contention that death penalty 
was imposed upon petitioner because of his 
race or because of race of victim; (2) jury 
instructions did not deprive defendant of 
due process; (3) claim that prosecutor 
failed to reveal existence of promise of 
assistance made to key witness entitled 
petitioner to relief; (4) defendant was not 
denied effective assistance of counsel; and 
(6) admission of evidence concerning prior 
crimes and convictions did not violate due 
process rights of petitioner. 

Ordered accordingly. 

1. Constitutional Law &=211(3) 
Application of a statute, neutral on its 

face, unevenly applied against minorities, is 
a violation of equal protection clause of the 
Fourteenth Amendment. U.S.C.A. Const. 
Amend. 14. 

2. Constitutional Law ¢=42.2(2) 
Defendant sentenced to death had 

standing under equal protection clause to 
attack death penalty sentence by contend- 
ing that it was imposed on him because of 
race of his victim. U.S.C.A. Const.Amend. 
14. 

SR 

3. Constitutional Law ¢=223 
With reference to defendant's argu- 

ment that he was being discriminated 
against on the basis of the race of his 
victim when death penalty was imposed, 
equal protection interests were not impli- 
cated in light of evidence that defendant 
was treated as any member of the majori- 
ty. U.S.C.A. Const. Amend. 14. 

4. Criminal Law ¢=1213.8(8) 
Death penalty is not per se cruel and 

unusual in violation of Eighth Amendment. 
U.S.C.A. Const.Amend. 8. 

5. Criminal Law ¢=1213.8(8) 
Defendant sentenced to death failed to 

state claim that imposition of death penalty 
violated Eighth Amendment. U.S.C.A. 
Const. Amend. 8. 

6. Constitutional Law ¢=253.2(1) 

Due process of law within meaning of 
Fourteenth Amendment mandates that 
laws operate on all alike such that an indi- 
vidual is not subject to arbitrary exercise 
of governmental power. U.S.C.A. Const. 
Amend. 14. 

7. Evidence &=150 

Intentional discrimination which the 
law requires to prove a violation of the 
Fourteenth Amendment cannot be shown 
by statistics alone. U.S.C.A. Const. Amend. 
14. 

8. Constitutional Law ¢=253.2(1) 
Disparate impact alone is insufficient 

to establish violation of Fourteenth Amend- 
ment unless evidence of disparate impact is 
so strong that only permissible inference is 
one of intentional discrimination. U.S.C.A. 
Const.Amend. 14. 

9. Evidence ¢=150 

In death penalty case, any statistical 
analysis used in challenging the imposition 
of death penalty under equal protection 
clause must reasonably account for racially 
neutral variables which could have produec- 
ed effect observed. U.S.C.A. Const. 
Amend. 14. 

10. Evidence ¢150 

Challenges to death penalty brought 
under equal protection clause requires that 
statistical evidence show likelihood of dis- 
criminatory treatment by decision makers 
who made judgments in question. U.S. 
C.A. Const.Amend. 14. 

11. Constitutional Law ¢=223 

In challenging imposition of death pen- 
alty on basis of racial discrimination, un- 
derlying data presented must be shown to 
be accurate. U.S.C.A. Const.Amend. 14. 

12. Evidence &=150 

In criminal prosecution in which de- 
fendant challenges imposition of death pen- 
alty on basis of racial discrimination, re- 
sults of statistics should be statistically 
significant. U.S.C.A. Const.Amend. 14.  



340 

13. Evidence &=150 

Generally, when accused challenges 
imposition of death penalty on basis of 
racial discrimination, statistical showing is 
considered significant if its “P” value is .05 
or less, indicating that probability that re- 
sult would have occurred by chance is one 
in 20 or less. U.S.C.A. Const.Amend. 14. 

14. Evidence 150 

Before trial court will find that some- 
thing is established based on multiple re- 
gression analysis, it must first be shown 
that model includes all of major variables 
likely to have an effect on dependent varia- 
ble and it must be shown that unaccounted 
for effects are randomly distributed 
throughout the universe and are not correl- 
ated with independent variables included. 
U.S.C.A. Const.Amend. 14. 

15. Evidence &=150 

Three kinds of evidence may be intro- 
duced to validate regression model; direct 
evidence as to what factors are considered, 
what kinds of factors generally operate in 
decision-making process like that under 
challenge, and expert testimony concerning 
what factors can be expected to influence 
process under challenge. U.S.C.A. Const. 
Amend. 14. 

16. Evidence ¢=150 

In habeas corpus proceeding in which 
defendant challenges imposition of death 
penalty on basis of racial discrimination, 
multiple regression analysis will be reject- 
ed as a tool if it does not show effect on 
people similarly situated; across-the-board 
disparities prove nothing. U.S.C.A. Const. 
Amend. 14. 

17. Evidence ¢=150 

When imposition of death penalty is 
challenged on basis of racial discrimination, 
a regression model that ignores informa- 
tion central to understanding causal rela- 
tionships at issue is insufficient to raise 
inference of discrimination. U.S.C.A. 
Const.Amend. 14. 

18. Evidence ¢=150 

When defendant challenges imposition 
of death penalty on basis of racial discrimi- 

580 FEDERAL SUPPLEMENT 

nation, validity of regression model de- 
pends upon showing that it predicts varia- 
tions in dependent variable to some sub- 
stantial degree. U.S.C.A. Const.Amend. 
14. 

19. Constitutional Law ¢=250.3(1) 
Where gross statistical disparity can 

be shown, that alone may constitute prima 
facie case of discrimination in imposition of 
death penalty. U.S.C.A. Const. Amend. 14. 

20. Civil Rights ¢=13.13(1) 
Generally, once discrimination plaintiff 

has put on prima facie statistical case, bur- 
den shifts to defendant to go forward with 
evidence showing either existence of legiti- 
mate nondiscriminatory explanation for its 
actions or that plaintiff’s statistical proof is 
unacceptable. U.S.C.A. Const.Amend. 14. 

21. Evidence 150 

Statistics relied upon by plaintiff in 
discrimination case to establish prima facie 
case can form basis of defendant’s rebuttal 
case, when, for example, defendant shows 
that numerical analysis is not the product 
of good statistical methodology. U.S.C.A. 
Const.Amend. 14. 

22. Evidence &150 

Prima facie case of discrimination is 
not established until plaintiff has demon- 
strated both that data base is sufficiently 
accurate and that regression model has 
been properly constructed. U.S.C.A. 
Const. Amend. 14. 

23. Evidence 150 

Statistics produced on weak theoretical 
foundation are insufficient to establish pri- 
ma facie discrimination case. U.S.C.A. 
Const.Amend. 14. 

24. Evidence &150 

Once prima facie discrimination case is 
established, burden of production is shifted 
to defendant and if it has not already be- i 
come apparent from plaintiff's presenta- 
tion, it then becomes defendant’s burden to 
demonstrate plaintiff’s statistics are mis- 
leading and such rebuttal may not be made 
by speculative theories. U.S.C.A. Const. 
Amend. 14.  



bn model de- 

predicts varia- 

0 some sub- 

Jonst. Amend. 

0.3(1) 

disparity can 

stitute prima 

imposition of 

tt. Amend. 14. 

(tion plaintiff 

al case, bur- 

forward with 

nce of legiti- 

ation for its 

tical proof is 

Amend. 14. 

plaintiff in 

| prima facie 

nt’s rebuttal 

dant shows 

the product 

y. U.S.C.A. 

imination is 

has demon- 

sufficiently 

model has 

U.S.C A. 

theoretical 

stablish pri- 
US.CA. 

htion case is 

n is shifted 

already be- 

S presenta- 

s burden to 

*S are mis- 

hot be made 

AQ 

McCLESKEY v. ZANT 341 

Cite as 580 F.Supp. 338 (1984) 

25. Evidence €&=150 : 

Statistics on Georgia death penalty 

statute did not demonstrate prima facie 

case in support of contention that death 

penalty was imposed upon defendant be- 

cause of his race or because of race of his 

victim since there was no consistent statis- 

tically significant evidence that death pen- 
alty was being imposed because defendant 

was black and victim was white, and even 

if prima facie case was made, the state 

rebutted statistical evidence by showing ex- 

istence of another explanation for the ob- 

served result, i.e., that white victim cases 

were acting as proxies for aggravated 

cases and black victim cases were acting as 

proxies for mitigated cases. U.S.C.A. 

Const.Amend. 14. 

26. Witnesses €¢=367(1) 

The rule announced by the Supreme 

Court in Giglio v. United States holding 

that the jury must be apprised of any 

promise which induces key government wit- 

ness to testify on government's behalf ap- 

plies not only to traditional deals made by 

prosecutor in exchange for testimony but 

also to any promises or understandings 

made by any member of prosecutorial 

team, which includes police investigators. 

27. Witnesses &=367(1) 

A promise, made prior to witness’ testi- 

mony, that investigating detective will 

speak favorably to federal authorities con- 

cerning pending federal charges is within 

scope of Giglio v. United States because it 

is sort of promise of favorable treatment 

which could induce witness to testify false- 

ly on behalf of government. 

28. Constitutional Law ¢=268(5) 

Failure of the state to disclose under- 

standing with one of its key witnesses re- 

garding pending Georgia criminal charges 

violated defendant’s due process rights; 

disclosure of the promise of favorable 

treatment and correction of other false- 

hoods in the witness’ testimony could rea- 

sonably have affected jury verdict on 

charge of malice murder. U.S.C.A. Const. 

Amend. 14. 

“29. Constitutional Law &=266(7) 

Due process clause protects accused 

against conviction except upon proof be- 

yond a reasonable doubt of every fact nec- 

essary to constitute crime with which he is 

charged. U.S.C.A. Const. Amend. 14. 

30. Criminal Law &778(2, 5) 

Jury instructions which relieve prose- 

cution of burden of proving beyond a rea- 

sonable doubt every fact necessary to con- 

stitute crime with which defendant is 

charged or which shift to accused burden 

of persuasion on one or more elements of 

crime are unconstitutional. U.S.C.A. 

Const.Amend. 14. 

31. Criminal Law &778(5) 

In analyzing a Sandstrom claim, court 

must first examine crime for which defend- 

ant has been convicted and then examine 

complained-of charge to determine whether 

charge unconstitutionally shifted burden of 

proof on any essential element of crime. 

U.S.C.A. Const.Amend. 14. 

32. Robbery &=11 

Offense of armed robbery under Geor- 

gia law contains elements of taking of 

property from person or immediate pres- 

ence of person, by use of offensive weapon 

with intent to commit theft. Ga.Code, 

§ 26-1902. 

33. Homicide &=7 

Under Georgia law, offense of murder 

contains essential elements of homicide, 

malice aforethought, and unlawfulness. 

0.C.G.A. § 16-5-1. 

34. Homicide &=11 

Under Georgia law, “malice” element, 

which distinguishes murder from lesser of- 

fense of voluntary manslaughter, means 

simply intent to kill in the absence of prov- 

ocation. 0.C.G.A. § 16-5-1. 
See publication Words and Phrases 

for other judicial constructions and 
definitions. 

35. Criminal Law &=778(6) 

In Georgia murder prosecution, jury 

instruction stating that acts of person of 

sound mind and discretion are presumed to 

be part of person’s will and person of  



342 

sound mind and discretion is presumed to 
intend natural and probable consequences 
of his act, both of which presumptions may 
be rebutted, taken in context of entire 
charge to jury, created only permissive in- 
ference that jury could find intent based 
upon all facts and circumstances of case, 
and thus, did not violate Sandstrom. 

36. Criminal Law 1172.2 

Even if challenged jury instructions re- 
garding burden of proof in murder prosecu- 
tion violated Sandstrom, error was harm- 
less beyond a reasonable doubt since it 
could not be concluded that there was any 
reasonable likelihood that intent instruc- 
tion, even if erroneous, contributed to 
jury’s decision to convict defendant of mal- 
ice murder and armed robbery under Geor- 
gia law. Ga.Code, § 26-1902; 0.C.G.A. 
§ 16-5-1. 

37. Criminal Law &=633(1) 

References in criminal prosecution to 
appellate process are not per se unconstitu- 
tional unless on record as a whole it can be 
sald that it rendered entire trial fundamen- 
tally unfair. 

38. Criminal Law &=713, 722 

In Georgia murder prosecution, prose- 
cutor’s arguments did not intimate to jury 
that death sentence could be reviewed or 
set aside on appeal; rather, prosecutor's 
argument referred to defendant’s prior 
criminal record and sentences he had re- 
ceived and such arguments were not imper- 
missible. 

39. Costs ¢2302.2(2) 

Under Georgia law, appointment of ex- 
pert in criminal prosecution ordinarily lies 
within discretion of trial court. 

40. Costs €302.2(2) 

In Georgia murder prosecution, trial 
court did not abuse its discretion in denying 
defendant funds for additional ballistics ex- 
pert since defendant had ample opportunity 
to examine evidence prior to trial and to 
subject state’s expert to thorough cross-ex- 
amination. 

- 580 FEDERAL SUPPLEMENT 

41. Criminal Law ¢=369.2(4) 
In murder prosecution, evidence tend- 

ing to establish that defendant had partici- 
pated in earlier armed robberies employing 
same modus operandi and that in one of 
those robberies he had stolen what was 
alleged to have been weapon that killed 
police officer in instant robbery was admis- 
sible under Georgia law. 

42. Criminal Law &=783(1) 
In murder prosecution, trial court’s 

jury instructions regarding use of evidence 
of prior crimes, which evidence was admis- 
sible, were not overbroad and did not deny 
defendant a fair trial under Georgia law. 

43. Criminal Law ¢=1208.1(6) 
In prosecution for armed robbery and 

malice murder, trial judge specifically in- 
structed jury that it could not impose death 
penalty unless it found at least one statuto- 
ry aggravating circumstance and that if it 
found one or more statutory aggravating 
circumstances it could also consider any 
other mitigating or aggravating circum- 
stances in determining whether or not 
death penalty should be imposed, and thus, 
trial court did not err by giving jury com- 
plete and limited discretion to use any of 
evidence presented at trial during its delib- 
erations regarding imposition of death pen- 
alty under Georgia law. 

44. Habeas Corpus ¢=25.1(8) 

In prosecution for armed robbery and 
malice murder, admission of evidence con- 
cerning two prior armed robberies for 
which defendant had not been indicted and 
admission of details of other prior armed 
robberies for which he had been convicted, 
was not so seriously prejudicial that it un- 
dermined reliability of guilt determination 
under Georgia law, although such evidence 
probably would not have been admissible in 
federal prosecution. 

45. Habeas Corpus ¢=85.5(1) 
In habeas corpus proceeding, there 

was no basis in record or in arguments 
presented by defendant for concluding that 
the Georgia Supreme Court was in error in 
finding that lineup was not impermissibly  



e tend- 

partici- 

ploying 

one of 

at was 

t killed 

s admis- 

court’s 

evidence 

s admis- 

ot deny 

gia law. 

very and 

cally in- 

jse death 

b statuto- 

hat if it 

ravating 

ider any 

circum- 

or not 

hind thus, 

ury com- 

e any of 

its delib- 

eath pen- 

lbery and 

ence con- 

eries for 

icted and 

or armed 

onvicted, 

hat it un- 

rmination 

evidence 

issible in 

ng, there 

Lrgu ts 

dir! at 

in error in 

ermissibly 

McCLESKEY v. ZANT 343 

Cite as 580 F.Supp. 338 (1984) 

suggestive and that in-court identifications 

were reliable. 

46. Criminal Law €=412.1(1) 

In Georgia prosecution for armed rob- 

bery and malice murder, trial judge did not 

err in finding that statement given to police 

officers was freely and voluntarily given; 

therefore, there was no error in admitting 

statement into evidence. 

47. Jury 108 

In Georgia prosecution for armed rob- 

bery and malice murder, since two prospec- 

tive jurors indicated they would not under 

any circumstances vote for death penalty, 

trial court committed no error in excluding 

them. 

48. Jury €=33(2.1) 

In Georgia prosecution for armed rob- 

bery and malice murder, exclusion of 

death-scrupled jurors did not violate de- 

fendant’s right to be tried by jury drawn 

from representative cross section of com- 

munity. 

49. Criminal Law &2627.5(1) 

Brady does not establish any right to 

pretrial discovery in a criminal case, but 

instead seeks only to insure fairness of 

defendant's trial and reliability of jury’s 

determinations. 

50. Criminal Law ¢=914 

Defendant who seeks new trial under 

Brady must, to establish a successful 

claim, show prosecutor's suppression of ev- 

idence, favorable character of suppressed 

evidence for the defense, and materiality of 

suppressed evidence. 

51. Constitutional Law &268(5) 

Since certain evidence was before jury 

in Georgia prosecution for armed robbery 

and malice murder, habeas court could not 

find that failure to disclose it prior to trial 

deprived defendant of due process. U.S. 

C.A. Const.Amend. 14. 

52. Habeas Corpus €=85.1(1), 92(1) 

In reviewing sufficiency of evidence on 

habeas corpus petition, district court must 

view evidence in a light most favorable to 

“Tile state and should sustain jury verdict 

unless it finds that no rational trier of fact 

could find defendant guilty beyond a rea- 

sonable doubt. 

53. Homicide €=253(1) 

Testimonial and circumstantial evi- 

dence was sufficient to sustain conviction 

for malice murder under Georgia law. 

54. Criminal Law &=641.13(4) 

Criminal defendant is entitled to effec- 

tive assistance of counsel, that is, counsel 

reasonably likely to render reasonably ef- 

fective assistance. U.S.C.A. Const.Amend. 

6. 

55. Criminal Law ¢=641.13(1) 

The constitution does not guarantee 

errorless counsel in criminal prosecution. 

U.S.C.A. Const. Amend. 6. 

56. Habeas Corpus ¢=85.5(9) 

In order to be entitled to habeas cor- 

pus relief on claim of ineffective assistance 

of counsel, petitioner must establish by a 

preponderance of the evidence that based 

upon totality of circumstances in entire 

record his counsel was not reasonably like- 

ly to render and in fact did not render 

reasonably effective assistance and that in- 

effectiveness of counsel resulted in actual 

and substantial disadvantage to course of 

his defense. U.S.C.A. Const.Amend. 6. 

57. Habeas Corpus &=25.1(6) 

Even if habeas corpus petitioner meets 

burden of establishing ineffective assist- 

ance of counsel, relief may be denied if 

state can prove that in context of all evi- 

dence it remains certain beyond a reasona- 

ble doubt that outcome of proceedings 

would not have been altered but for inef- 

fectiveness of counsel. U.S.C.A. Const. 

Amend. 6. 

58. Criminal Law ¢=641.13(2) 

In Georgia prosecution for armed rob- 

bery and malice murder, given contradicto- 

ry descriptions given by witnesses at store, 

inability of witness to identify defendant, 

defendant's repeated statement that he 

was not present at scene, and possible out- 

come of pursuing the only other defense 

available, trial counsel's decision to pursue  



: 2, ABU S.CA. Const. Amend. 6. 

344 

alibi defense was not unreasonable and did 

not constitute ineffective assistance of 

counsel. U.S.C.A. Const.Amend. 6. 

59. Criminal Law €=641.13(6) 

Failure of trial counsel in Georgia 

prosecution for armed robbery and malice 

murder to interview store employees was 

not unreasonable, trial counsel having 

made reasonable strategic choice to pursue 

alibi defense, and thus, was not ineffective 

assistance of counsel. U.S.C.A. Const. 

Amends. 6, 14. 

60. Habeas Corpus €=25.1(6) 

Habeas corpus petitioner was not enti- 

tled to relief on grounds that his counsel 

was ineffective because he did not disbe- 

lieve petitioner and had undertaken inde- 

pendent investigation. 

61. Criminal Law ¢641.13(6) 

In Georgia prosecution for armed rob- - 

bery and malice murder, trial counsel was 

not ineffective because he failed to inter- 

view state’s ballistics expert where counsel 

had read expert's report and was prepared 

adequately to cross-examine expert at trial. 

U.S.C.A. Const. Amend. 6. 

62. Criminal Law &641.13(2) 

Since there was nothing unconstitu- 

tional about chance viewing of defendant 

prior to trial, failure of trial counsel to 

move for continuance or mistrial on basis 

of suggestive lineup procedure did not con- 

stitute ineffective assistance of counsel. 

U.S.C.A. Const. Amend. 6. 

63. Habeas Corpus ¢=85.5(11) 

Assuming that failure of trial counsel 

to investigate prior convictions of defend- 

ant constituted ineffective assistance of 
2. stounsel, petitioner could not show actual 

“and substantial prejudice resulting from 
ineffectiveness warranting habeas relief. 

64. Criminal Law ¢=641.13(2) - 
In Georgia prosecution for armed rob- 

bery and malice murder, trial court’s in- 

structions on presumptions of intent, other 

acts evidence and aggravating circumstanc- 

es were not erroneous or overbroad; thus, 

580 FEDERAL SUPPLEMENT 

failure of trial counsel to object to instruc- 

tions did not constitute ineffective assist- 

ance of counsel. U.S.C.A. Const. Amend. 6. 

65. Habeas Corpus ¢=85.5(9) 

In habeas corpus proceeding record did 

not support finding of actual and substan- 

tial prejudice to defendant due to ineffec- 

tive assistance of trial counsel at sentenc- 

ing phase. U.S.C.A. Const.Amend. 6. 

66. Habeas Corpus &25.1(6) 

There was no actual and substantial 

prejudice caused to habeas petitioner by 

trial counsel's failure to review and correct 

mistake in trial judge’s posttrial sentencing 

report, even if such failure constituted inef- 

fective assistance of counsel. U.S.C.A. 

Const. Amend. 6. 

Robert H. Stroup, Atlanta, Ga., Jack 

Greenberg, John Charles Boger, New York 

City, Timothy K. Ford, Seattle, Wash., An- 

thony G. Amsterdam, N.Y. University Law 
School, New York City, for petitioner. 

Michael J. Bowers, Atty. Gen., Mary 

Beth Westmoreland, Asst. Atty. Gen., At- 

lanta, Ga., for respondent. 

ORDER OF THE COURT 

FORRESTER, District Judge. 
Petitioner Warren McCleskey was con- 

victed 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 consec- 

utive life sentences, to run after the death 

sentence, on the two armed robbery 

charges. 
preme Court of Georgia the convictions and 

the sentences were affirmed. McClesky v. 

State, 245 Ga. 108, 263 S.E.2d 146 (1980). 

The Supreme Court of the United States 

. ...denied McCleskey’s petition for a writ of 

-certiorari. McClesky v. Georgia, 449 U.S. 
891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980). 

On December 19, 1980 petitioner filed an 

extraordinary motion for a new trial in the 

Superior Court of Fulton County. No hear- 

ing has ever been held on this motion.   
On automatic appeal to the Su-- .-



t to instruc- 

tive assist- 

t.Amend. 6. 

record did 

nd substan- 

to ineffec- 

at sentenc- 

bnd. 6. 

substantial 

btitioner by 

and correct 

sentencing 

tituted inef- 

U.S.C.A. 

Ga., Jack 

New York 

Wash., An- 

ersity Law 

tioner. 

en., Mary 

[. Gen., At- 

RT 

was con- 

bbery and 

e Superior 

Dctober 12, 

Cleskey to 

i to consec- 

Ir the death 

d robbery 

to the Su- 

fictions and 

(cClesky v. 

146 (1980). 

ited States 

a writ of 

, 449 U.S. 

119 (1980). 

er filed an 

trial in the 

:'N ar- 

his 4 DI. 

McCLESKEY v. ZANT 345 
Cite as 580 F.Supp. 338 (1984) 

Petitioner then filed a petition for writ of 

habeas corpus in the Superior Court of 

Butts County. After an evidentiary hear- 

ing the Superior Court denied all relief 

sought. McCleskey v. 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 certificate 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 v. Zant, 454 U.S. 1093, 

102 S.Ct. 659, 70 L.Ed.2d 631 (1981). 

Petitioner then filed this petition for writ 

of habeas corpus on December 30, 1981. 

He asserts 18 separate grounds for grant- 

ing the writ. Some of these grounds as- 

sert alleged violations of his constitutional 

rights during his trial and sentencing. 

Others attack the constitutionality of Geor- 

gia’s death penalty. Because petitioner 

claimed to have sophisticated statistical evi- 

dence to demonstrate that racial discrimina- 

tion is a factor in Georgia's capital sentenc- 

ing 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 signif- 

icance is in Part II of this opinion. Peti- 

tioner’'s remaining contentions are dis- 

cussed in Parts III through XVI. The 

court has concluded that petitioner is enti- 

tled 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 re- 

maining contentions are without merit. 

I. DETAILS OF THE OFFENSE. 

On the morning of May 13, 1978 petition- 

er 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 an- 

other suitable target. They eventually de- 

cided to rob the Dixie Furniture Store in 

Atlanta. Each of the four was armed. 

The evidence showed that McCleskey 
580 F.Supp.—10 

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. McCles- 

key 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 rob- 

bery. Executing the plan, petitioner en- 

tered 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 man- 

ager was forced at gunpoint to turn over 

the store receipts, his watch, and $6.00. 

Before the robbery could be completed, Of- 

ficer Frank Schlatt, answering a silent 

alarm, pulled his patrol car up in front of 

the building. He 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 subsequent- 

ly 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 Atlan- 

ta police and gave them a statement con- 

fessing 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 Ros- 
si 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 

   



346 

the only one of the four robbers in the 

front of the store. The State also intro- 

duced over petitioner's objections the state- 

ments petitioner had made to Atlanta po- 

lice. Finally, the State produced testimony 

by one of the co-defendants and by an 

inmate at the Fulton County Jail that peti- 

tioner had admitted shooting Officer 

Schlatt and had even boasted of it. In his 

defense petitioner offered only an unsub- 

stantiated alibi defense. 

The jury convicted petitioner of malice 

murder and two counts of armed robbery. 

Under Georgia's bifurcated capital sentenc- 

ing procedure, the jury then heard argu- 

ments as to the appropriate sentence. Peti- 

tioner offered no mitigating evidence. Af- 

ter deliberating the jury found two statuto- 

ry 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 sen- 

tences on the armed robbery charges. 

II. THE CONSTITUTIONALITY OF 

THE GEORGIA DEATH PENAL- 

TY. 

A. An Analytical Framework of the 

Law. 

Petitioner contends that the Georgia 

death penalty statute is being applied arbi- 

trarily and capriciously in violation of the 

Eighth and Fourteenth Amendments to the 

United States Constitution. 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 applica- 

tion 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 Amend- 

ment. 

[1] It is clear beyond peradventure that 

the application of a statute, neutral on its 

580 FEDERAL SUPPLEMENT 

face, unevenly applied against minorities, is 

a violation of the equal protection clause of 

the Fourteenth Amendment. Yick Wo v. 

Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 

L.Ed. 220 (1886). The more difficult ques- 

tion presented is why under the facts of 

this case the petitioner would be denied 

equal protection of the law if he is sen- 

tenced to death because of the race of his 

victim. This quandry has led the Eighth 

Gireuit to find that a petitioner has no | 

standing to raise this claim as a basis for 

invalidating his sentence. Britton v. Kog- : 

ers, 631 F.2d 572, 577 n. 3 (8th Cir.1980), 

cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 

68 L.Ed.2d 327 (1981). 

While this circuit in Spinkellink wv. 

Wainwright, 578 F.2d 582 (5th Cir.1978), 

reh’y denied, 441 U.S. 937, 99 S.Ct. 2064, 

60 L.Ed.2d 667, application for stay de- 

nied, 442 U.S. 1301, 99 S.Ct. 2091, 60 

L.Ed.2d 649 (1979), seemed to give lip ser- 

vice to this same point of view by approv- 

ing the proposition that a district court 

“must conclude that the focus of any in- 

quiry into the application of the death pen- 

alty must necessarily be limited to the per- 

sons who receive it rather than their vie 

tims,” id. at 614 n. 39, the court in Spinkel- 

link also adopted the position that a peti- 

tioner such as MecCleskey would have 

standing to sue in an equal protection con- 

text: 

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 discrimination, if proven, impinges 

on his constitutional right under the 

Eighth and Fourteenth Amendments not 

to be subjected to cruel and unusual pun- 

ishment. See Taylor v. Louisiana, su- 

pra, 419 U.S. [522] at 526 [95 S.Ct. 692 at 

695, 42 L.Ed.2d 690]. 

Id. at 612 n. 36. This footnote in Spinkel- 

link warrants close examination. In Tay- 

lor v. Louisiana, 419 U.S. 522, 95 S.Ct. 

692, 42 L.Ed.2d 690 (1975), the Supreme 

Court held that a male had standing to 

challenge a state statute providing that a 

woman should not be selected for jury ser-  



    

   
   

inorities, is 

on clause of 

Yick Wo v. 

t. 1064, 30 

ficult ques- 

he facts of 

be denied 

he is sen- 

race of his 

the Eighth 

er has no 

a basis for 

ton v. Rog- 

Cir.1980), 

S.Ct. 2021, 

  

      

  

    

   

  

    
   
    

  

   

   
   

  

    

   

kellink wv. 

Cir.1978), 

S.Ct. 2064, 

br stay de- 

. 2091, 60 

Five lip ser- 

by approv- 

btrict court 

of any in- 

death pen- 

to the per- 

their vie- 

in Spinkel- 

that a peti- 

ould have 

ection con- 

  

   

   

        

   
    

   

  

    

    

tanding to 

sue, even 

f the class 

Et, because 

i, impinges 

under the 

ments not 

husual pun- 

'siana, Su- 

R.Ct. 692 at 

    

  

n Spinkel- 

In Tay- 

, 95 S.Ct. 

Supreme 

tandiae to 

ing: E's 

r jury ser- 

    
    
   
    
     

   
  

   - 

  

McCLESKEY v. ZANT 347 
Cite as 580 F.Supp. 338 (1984) 

vice unless she had previously filed a writ- 

ten declaration of her desire to be subject 

to jury service. The Court in Taylor cited 

to Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 

2163, 33 L.Ed.2d 83 (1972), to conclude: 

“Taylor, in the case before us, was similar- 

ly 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, 95 S.Ct. at 696. In 

Peters the Supreme Court rejected the con- 

tention that because a petitioner is not 

black, he has not suffered any unconstitu- 

tional discrimination. 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, 92 S.Ct. at 2165-66 n. 5 

2168, 2169; id. at 509, 92 S.Ct. at 2171 
(Burger, C.J., dissenting). 

Thus, for Spinkellink to articulate an 

equal protection standing predicate based 

upon Sixth Amendment and due process 

cases can be characterized, at best, as curi- 

ous. 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, Adams v. Wainwright, 709 F.2d 1443, 

1449-50 (11th Cir.), reh’g en banc.denied, 

716 F.2d 914 (11th Cir.1983); Smith wv. 

Balkcom, 671 F.2d 858 (5th Cir.1982) (Unit 

B); but it appears that this circuit is apply- 

ing equal protection standards to Eighth 

Amendment challenges of the death penal- 

ty. See, eg, Adams v. Wainwright, Su- 

pra. Accord, Harris v. Pulley, 692 F.2d 

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

remanded on other grounds, — U.S. 

—, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). 

Indeed, in Spinkellink itself, the court 

adopted an analytical nexus between a cru- 

el and unusual punishment contention and 

a Fourteenth Amendment equal protection 
evidentiary showing: 

[This is not to say that federal courts 

should never concern themselves on fed- 

eral 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 evi- 
~ dencing intentional or purposeful racial 

discrimination against him, see Village of 

Arlington Heights v. Metropolitan 

Housing Development Corp., 429 U.S. 

252 [97 S.Ct. 555, 50 L.Ed.2d 450] (1977), 

either because of his own race or the 

race of his victim, the federal district 

court should intervene and review sub- 

stantively the sentencing decision. 

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

[2] Principles of stare decisis, of 

course, mandate the conclusion that peti- 

tioner 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 stan- 

dards of an evidentiary showing required 

by this petitioner to advance successfully 
his claim. 

  

  

  

[3] Were this court writing on a clean 

slate, 1t would hold that McCleskey would 
have standing under the due process clause 

of the Fourteenth Amendment, but not un- 

der the equal protection clause or the 

Eighth Amendment, to challenge his con- 

viction and sentenced if he could show that 

they were imposed on him on account of 

the race of his victim. From a study of 

equal protection 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 

Constitutional Law, § 16-1, 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 characteristics 

have no bearing on his being treated differ- 

ently 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 protec- 

tion interests are not being implicated. 

  

  

  

  

[4,5] Petitioner also fails to state a 

claim under the Eighth Amendment. It is 

clear from the decisions of the Supreme    
             



348 

Court that the death penalty is not per se 

cruel and unusual in violation of the Eighth 

Amendment. Prior to Furman v. Georgia, 

408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 

(1972), the cruel and unusual punishments 

clause was interpreted as applicable to con- 

tentions that a punishment involved unnec- 

essary 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, 92 S.Ct. at 2772-74 (Marshall, J. 

concurring). In other words, Eighth 

Amendment jurisprudence prior to Fur- 

man entailed an inquiry into the nexus 

between the offense and punishment; that 

punishment which was found to be exces- 

sive was deemed to violate Eighth Amend- 

ment concerns. The Supreme Court has 

determined as a matter of law that where 

certain aggravating features are present 

the infliction of the death penalty is not 

violative of the Eighth Amendment. Gregg 

v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 

L.Ed.2d 859 (1976). In the instant case, 

petitionier’s _yace of the victim argument 

does not address traditional Eighth Amend: 
ment_concerns, His argument does not 

entail—nor could he seriously advance— 

any contention that his penalty is dispro- 

portionate to his offense, that his penalty 

constitutes cruel and unusual punishment, 

or that his penalty fails to serve any valid 

legislative interest. 

[6] What petitioner does contend is that 

the Georgia system allows for an impermis- 

sible value judgment-hy the actors within 

the system—that white Tife is more valua- 

ble than black life—and, as a practical mat- 

ter, that the Georgia system allows for a 

double standard for sentencing. Certainly, 

such allegations raise life and liberty inter- 

ests 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 integ- 

rity, propriety, or “fairness” of the process 

that is being questioned by petitioner’s con- 

tention, and not the mechanics or structure 

\ of the process. Thus, petitioner's allega- 

tion of an impermissible process speaks 

most fundamentally to Fourteenth Amend- 

580 FEDERAL SUPPLEMENT 

ment due process interests, rather than 

Eighth Amendment interests that tradition- 

ally dealt with “cruel and unusual”. con- 

texts. 8 

For all its consequences, ‘‘due process” 

has never been, and perhaps can never 

be, precisely defined. “[Ulnlike some le- 

gal rules,” this Court has said, due pro- 

cess “is not a technical conception with a 

fixed content unrelated to time, place and 

circumstances.” Cafeteria Workers v. 

McElroy, 367 U.S. 886, 895 [81 S.Ct. 

1743, 1748, 6 L.Ed.2d 1230]. 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 as- 

sessing the several interests that are at 

stake. 

Lassiter v. Department of Social Services, 

452 U.S. 18, 24-25, 101 S.Ct. 2153, 2158- 

2159, 68 L.Ed.2d 640 (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 v. Texas, 139 U.S. 462, 467-68, 11 

S.Ct. 5717, 579-80, 35 L.Ed. 225 (1891); 

Hurtado v. California, 110 U.S. 516, 535— 

36, 4 S:Ct.-111,.120-21, 28 L.Ed. 232 (1884). 

As Justice Frankfurter observed in Rochin 

v. California, 342 U.S. 165, 72 S.Ct. 205, 96 

L.Ed. 183 (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 can- 

ons of decency and fairness which ex- 

press the notions of justice of English- 

speaking peoples even toward those 

charged with the most heinous of- 

fenses.” Malinski v. New York, supra, 

[324 U.S. 401] at 416-17 [65 S.Ct. 781 at  



er than 

radition- 

al” con- 

process’’ 
n never 

some le- 

due pro- 

n with a 

place and 

rkers v. 

R81 S.Ct. 

her, the 

ent of 

irement 

e as its 

the Due 

ncertain 

br what 

of in a 

hsidering 

n by as- 

ht are at 

Services, 

3, 2158- 

lear that 

ning of 

htes that 

that an 

hrbitrary 

ee, e.g., 

7-68, 11 

16, 535- 

2 (1884). 

Rochin 

. 205, 96 

the Due 

imposes 

dgment 

ceedings 

brder to 

ose can- 

hich ex- 

English- 

d those 

ous of- 

7A 

McCLESKEY v. ZANT 349 
Cite as 580 F.Supp. 338 (1984) 

789, 89 L.Ed. 1029]. The standards of 

justice are not authoritatively formulated 

anywhere as though they were specifics. 

Due process of law is a summarized con- 

stitutional guarantee of respect for those 

personal immunities which, as Mr. Jus- 

tice 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 v. Massachusetts, 

291 U.S. 97, 105 [54 S.Ct. 330, 332, 78. 

L.Ed. 674], or are “implicit in the concept 

of ordered liberty.” Palko v. Connecti- 

cut, 302 U.S. 319, 325 [58 S.Ct. 149, 152, 

82 L.Ed. 288]. 

See also Peters v. Kiff, 407 U.S. 493, 501, 

92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972) 

(“A fair trial in a fair tribunal is a basic 

requirement of due process.”) (citing In 

Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 

623, 625, 99 L.Ed. 942 (1955)). See gener- 

ally, 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 Four- 

teenth 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 impermissible 1 os 

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 “arbi- 

trary and capricious,” he is, to the con- 

trary, contending not that the death penal- 

tyes imposed i his. Case—srhitrarily or 

capritiously but on account.of ap intention- 

al appieatiomrof<an impermissible critegion. 

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 it was 

imposed because of the race of his victim. 

McCleskey is entitled to the grant of a writ 
of habeas corpus if he establishes 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 vietim. \Smith v. Balkcont, 660 F.2d 

513 (oth Cir. Unit B 1981), modified in 

part, 671 F.2d 858 (1982); Spinkellink, 

supra. In Stephens v. Kemp, — U.S. 

—, 104 S.Ct. 562, 78 L.Ed.2d 370 (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 

“particularized statistical study” claimed 

to show “intentional race discrimination,” 

no one has suggested that the study fo- 

cused on this case. A ‘“particularized” 

showing would require—as I understand 

it—that there was intentional race dis- 

crimination in indicting, trying and con- 

victing Stephens and presumably in the 

state appellate and state collateral re- 

“viéW that several times follows the trial. 

Id. 104 S.Ct. at 564 n. 2 (Powell, J. dissent- 

ing). 

[7,8] The intentional discrimination | 

which the law requires cannot generally be 

shown by statistics alone. Spencer v. 

" Zandi, 715 F.2d 1562, 1581 (11th Cir.1983), 
reh’g en banc granted, 715 F.2d 1583 (11th 

Cir.1983). Disparate impact alone is insuf- 

ficient to establish a violation of the Four- 

teenth Amendment unless the evidence of 

disparate impact is so strong that the only 

permissible inference is one of intentional gp, 

discrimmation. Sullivan v. Wainwright, 

721 F.2d 316 (11th Cir.1983); Adams wv. 

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

Smith v. Balkcom, 671 F.2d 858, 859 (5th 

Cir. Unit B), cert. denied, 459 U.S. 882, 

103 S.Ct. 181, 74 L.Ed.2d 148 (1982).  



350 

B. An Analytical Framework of Peti- 

tioner’s Statistical Evidence. 

The petitioner does rely upon statistical 

evidence to support his contentions respect- 

ing the operation of racial discrimination on 

a statewide basis. He relies on statistical 

and anecdotal evidence to support his con- 

tentions that racial factors play a part in 

the application of the death penalty in Ful- 

ton County where he was sentenced. 

Statistical evidence, of course, is nothing 

but a form of circumstantial evidence. 

Furthermore, it is said “that statistics are 

r not irrefutable; they come in infinite varie- 

ty and, like any other kind of evidence, 

they may be rebutted. In short, their use- 

fulness depends on all of the surrounding 

facts and circumstances.” Teamsters v. 

United States, 431 U.S. 324, 340, 97 S.Ct. 

1843, 1857, 52 L.Ed.2d 396 (1977). 

[9] As courts have dealt with statistics 

in greater frequency, a body of common 

law has developed a set of statistical con- 
ventions which must be honored before sta- 

fistics will be admitted into evidence at all 
ar) before they are given much weight. 

These common law statistical conventions 

prevail even over the conventions generally 

accepted in the growing community of eco- 

nomotricians. The(Tirstconvention which 

has universally been honored in death pen- 

alty cases is that any statistical analysis 

must reasonably account for racially neu- 

tral variables which could have produced 

the effect observed. See Smith v. Balk- 

com, supra; Spinkellink v. Wainwright, 

578 F.2d 582, 612-16 (5th Cir.1978), cert. 

denied, 440 U.S. 976, 99 S.Ct. 1548, 59 

L.Ed.2d 796 (1979); McCorquodale v. Balk- 

com, 705 F.2d 1553, 1556 (11th Cir.1983). 

[10] The second &nvention which ap- 

plies in challenges brought under the equal 

protection clause is that the. statistical evi: 

dence must show the likelihood of diserimi- 

natory treatment by the decision “makers 

who made the judgments in question. Ad- 

[ams v. Wainwright, supra; Maxwell v. 

Bishop, 398 F.2d 138 (8th Cir.1968) (Black- 

mun, J.), vacated on other grounds, 398 

580 FEDERAL SUPPLEMENT 5 

US 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 

(1970). - 

[11-13] The f(hird general statistical 

convention is that the underlying data must 

be shown to be accurate. Theffourth is 

that the results should be statistically sig- 

nificant. 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 stan- 

dard error estimate by a factor of 2. FEast- 

land v. TVA, 704 F.2d 613, 622 n. 12 (11th 

Cir.1983). 

[14] McCleskey relies primarily on _a 

statistical technique known as multiple re- 

gression analysis to produce the statistical 

evidence offered in support of his conten- 

tions. This technique is relatively new to 

the law. This court has been able to locate 

only six appellate decisions where a party 

to the litigation relied upon multiple regres- 

sion 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 v. Mississippi Cooperative Exten- 

sion Service, 528 F.2d 508 (5th Cir.1976). 

In four of them, the party relying upon the 

technique was found to have failed in his 

attempt to prove something through a re- 

liance on it. Generally, the failure came 

when the party relying upon multiple re- 

gression analysis failed to honor conven- 

tions which the courts insisted upon. Be: 

fore a court will find that something is 

established based qn maultiple—regression 
analysis, it_mus{ firs be shown that the 

model includes all of the major variables 

likely to haye an _effect.on the dependent 

variable. Qecond,)it must be shown that 

the unaccounted-for effects are randomly 

distributed throughout the universe ang 

are not correlated with the independent 

variables included. FEastland, supra, at 

704. 

[15] In multiple regression analysis one 

builds a theoretical statistical model of re- 

ality and then attempts to control for all  



Ed.2d 221 

statistical 

b data must 

e fourth is 

stically sig- 

| showing is 

value is .05 

ability that 

by chance is 

r way, the 

d the stan- 

of 2. East- 

n. 12 (11th 

arily on a 

multiple re- 

e statistical 

his conten- 

vely new to 

ble to locate 

ere a party 

iple regres- 

, the party 

iled, but in 

e supported 

ence. FE.g., 

tive Exten- 

h Cir.1976). 

g upon the 

Failed in his 

rough a re- 

ailure came 

multiple re- 

nor conven- 

upon. Be- 

pbmething is 

regression 

n that the 

or variables 

e dependent 

shown that 

e randomly 

hiverse and 

independent 

supra, at 

4 

4) one 

model of re- 

htrol for all 

Hun 
Cenbmp 

nud lod & 
Crmdandsy 

¢thatid 'A¢ 

levers wmShlk a 

Katz a ppd) 

27 

NC 

Wo v.08 TRAY Live, 
"McCLESKEY v. ZANT : 351 

Cite as 580 F.Supp. 338 (1984) 

possible independent variables while mea- 

suring the effect of the variable of interest 

upon the dependent variable. Thus, a prop- 

erly done study begins with a decent theo- 

retical 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 th iS1on- ro S 

under challenge functions. Three kinds of 

  

  

evidence may ‘be introducéd-te validate a 
regression model: (1) Direct testimony as 

to what factors are considered, (2) what 

kinds of factors generally operate in a deci- 

sion-making process like that under chal- 

lenge, 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). 

[16-18] 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 v. Feder- 

al Reserve Bank of Richmond, 698 F.2d 

633, 656-58 (4th Cir.1983), appeal pending; 

Valentino v. U.S. Postal Serpice, 674 F.2d 

56, 70 (D.C.Cir.1982). A regression model 
that ignores information central to under- 

standing the causal relationships at issue is 

insufficient to raise an inference of discrim- 

ination. 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 v. University of Houston, 654 

F.2d 388, 405 (5th Cir.1981), cert. denied, 

459 U.S. 822, 103 S.Ct. 51, 74 L.Ed.2d 57 

(1982). 

[19] “To sum up, statistical evidence is 

circumstantial in character and its accepta- 

bility 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 v. 

Federal Reserve Bank of Richmond, su- 

pra, at 646-47. Where a gross statistical 

  

  

  

  

disparity can be shown, that alone may 

constitute a prima facie case of discrimina- 

tion. This has become the analytical 

framework in cases brought under Title 

VII of the Civil Rights Act of 1964. Be- 

cause Fourteenth Amendment cases have a 

similar framework and because there are 

relatively few such cases relying on statis- 

tics, when appropriate the court may draw 

upon Title VII cases. Jean v. Nelson, 711 

F.2d 1455, 1486 n. 30 (11th Cir.), reh’g en 

banc granted, 714 F.2d 96 (1983). 

[20-23] Generally it is said that once 

the plaintiff has put on a prima facie statis- 

tical case, the burden shifts to the defend- 

ant to go forward with evidence showing 

either the existence of a legitimate non-dis- 

criminatory explanation for its actions or 

that the plaintiff's statistical proof is unac- 

ceptable. Johnson -v. Uncle Ben's, Inc., 

628 F.2d 419 (5th Cir.1980), cert. denied, 

459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 

(1982). The statistics relied upon by the 

plaintiff 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 statistical methodolo- 

gy. EEOC v. Datapoint Corp., 570 F.2d 

1264 (5th 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 mon of a prima facie case. Jean, 

supra, at 1487. Statistics produced on a 

weak theoretical foundation are insuffi 

cient to establish a prima facie case. FEast- 

land, supra, at 625. 

[24] Once a prima facie case is estab- 

lished the burden of production is shifted to 

the respondent. If it has not already be- 

come apparent from the plaintiff's presen- 

tation, it then becomes the defendant’s bur- 

den to demonstrate that the plaintiff’s sta- 

tistics are misleading, and such rebuttal 

may not be made by speculative theories. 

See Eastland, supra, at 618, Coble v. Hot   

 



352 

Springs School District, 682 F.2d 721, 

730-31 (8th Cir.1982); Jean v. Nelson, su- 

pra. 

C. Findings of Fact. 

The court held an evidentiary hearing for 

the purpose of enabling the petitioner to 

580 FEDERAL SUPPLEMENT 

grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 

L.Ed.2d 221 (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 ic put on the evidence he had in support of his } 
of some capital punishment data from Cali- / contention that racial factors are a consid- 

eration in the imposition of the death penal- 

ty.! 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 peti- 

tioner was Professor David C. Baldus. 

Professor Baldus is a 48-year-old Professor 

of Law at the University of Iowa. Present- 

ly 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 statistical evidence in law. He 

and a statistician, James Cole, authored a 

book entitled Statistical Proof of Discrim- 

ination that was published by McGraw- 
‘Hill in 1980. R 54-56. He has done sever- 
al pieces of social science research involv- 

ing legal issues and statistical proof. R 

45-46, 53. 

p 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 re- 

| lied upon in Maxwell v. Bishop, 398 F.2d 
\. 188 (8th Cir.1968), vacated on other 

1. A separate one-day hearing was had several 
months after the original hearing. The tran- 
script of those proceedings appears in Volume 

fornia. 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 con- 

sulting work involved proportionality re- 

view. R 95. Baldus and Cole have also 

prepared an article for the Yale Law Jour- 

nal evaluating statistical studies of the 

death penalty to determine if it had a deter- 

rent 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 6r not ~~ = 
the statistical procedures were valid under 

the circumstances. While Baldus has some 

familiarity with statistical methodology, he 

was quick to defer to statistical experts 

where sophisticated questions of methodol- 

ogy 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 statistics and sta- 

tistical computation, especially with refer- 

ence to analysis of discreet outcome data. 

Dr. Woodworth is an Associate Professor 

of Statistics at the University of Iowa and 

collaborated with Baldus on the prepara- 

tion of the study before the court. R 1193. 

The petitioner also called Dr. Richard A. 

Berk, a Professor of Sociology at the Uni- 

versity 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. 

X of the transcript, and that testimony will 
hereafter be referred to with the prefix “X.”  



. 1578, 26 

se. R T2. 

ethods of 

ether with 

indings in 

he Journal 

gy. R 89. 
hn analysis 

from Cali- 

ter Baldus 

bnal Center 

eme Court 

e Court of 

at his con- 

onality re- 

have also 

Law Jour- 

es of the 

ad a deter- 

iversity of 

scientific 

nd capital 

ourt as an 

erpretation 

her or not 

alid under 

5 has some 

dology, he 

al experts 

' methodol- 

R 109-20. 

lled by the 

pert in the 

cs and sta- 

ith refer- 

ome data. 

Professor 

Iowa and 

e prepara- 

t. R 1193. 

Richard A. 

ht the Uni- 

rbara, and 

| in social 

emphasis 

R 1749-55. 

tim ill 

pre 5." 

McCLESKEY v. ZANT 353 
Cite as 580 F.Supp. 338 (1984) 

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, sta- 

tistical analysis and quantitative methods. 

R 1346. Dr. Katz is a rather recent gradu- 

ate of Louisiana State University. The re- 

spondent also called Roger L. Burford, a 

Professor of Quantitative Business Analy- 

sis 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 pre- 

ferred 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 proposition for 

which there was absolutely mo support. 

2. Scope of the Studies 

Baldus and Woodworth conducted two 

studies on the criminal justice system in 

Georgia as it deals with homicide and mur- 

der 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 mur- 

der and received the death penalty. The 

time period for the study included offend- 

ers 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 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 Re- 

form Study were the files of the Georgia 

Supreme Court, certain information from 

the Department of Offender Rehabilitation, 

and information from the Georgia Depart- 

ment 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 Procedur- 

al 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 translat- 

ed 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 Proce: 

dural Reform Study. He found in these 
preliminary analyses no “race of the de- 

fendant” effect and a very unclear “race of 

  

  

  

  

  

the victim” effect. R 258. The Legal De- 
fense 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 impor- 

tant to examine the combined effects of all 

the decisions made at the 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 re- 

spects in addition to measuring factors akin 

to those which were already being taken 

into account in the Procedural Reform Stu- 

dy. 

The universe for the Charging and Sen- 

tencing Study was all offenders who were 

convicted of murder or voluntary man- 

slaughter 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 ac- 

quitted 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 sam- 

ple was drawn. The first stratification was 

  

 



354 

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 strati- 

fication was geographic. The researchers 

drew a sample of 18 cases from each judi- 

cial circuit in Georgia. Where the circuit 

did not produce 18 cases in the first draw, 

additional cases were drawn from the popu- 

lation to supplement the original random 

sample. The results from each judicial cir- 

cuit 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. 

Because of the many factors involved 

in such an analysis, a simple binomial 

comparison would show nothing. To de- 

“Termine whether or mot race was being 

| considered, 1t_1s necessary to compare 

| very similar cases. This suggests the use 

| of a statistical technique known as cross 

tabulation. Because of the data availa- 

ble, it was impossible to get any statisti- 

cally significant results in comparing ex- 

act cases using a cross tabulation meth- 
od. R 705. Accordingly, the study prin- 

cipally 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 ex- 

amine the nature of the questionnaires uti- 

lized and the procedures employed to enter 

the data upon the questionnaires. 

The original questionnaire for the Proce- 

dural 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 Offender Rehabilitation for Professor 

Baldus. The remainder of the pages were 

coded by students in Iowa based on ex- 

580 FEDERAL SUPPLEMENT 

tracts prepared by data gatherers in Geor- 
gia. 

The data on the first 15 pages of the 

Procedural Reform Study questionnaire in- 

cludes information on sentencing, basic de- 

mographic data concerning the defendant, 

his physical and psychiatric condition, his 

IQ, his prior record, as well as information 

concerning his behavior as an inmate. The 

next six pages of the questionnaire con- 

tained inquiries concerning the method of 

killing. Data is also gathered on the num- 

ber of vietims 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 contempora 

neous 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 defend- 

ant. Then, there are 26 pages of questions 

concerning the deliberations of the jury and 

information concerning the penalty trial. 

The questionnaire concludes on matters re- 

lating to the disposition of the case with 

respect to other counts charged and, final- 

ly, 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 ques- 

tionnaire was not coded by students having 

access to the raw data in Georgia. In- 

stead, as noted above, two law students 

prepared detailed abstraCts of each case. 
Their notes were dictated and transeribed. 

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 assem- 

bled as a file and were available in Iowa to 

the coders. R 209, 212, 241.  



    

  

in Geor- 

    

   
   

  

   

  

of the 

aire in- 

asic de- 

Fendant, 

ion, his 

rmation 

e. The 

ire con- 

thod of 

he num- 

bout co- 

of their 

endant. 

| search 

Three 

empora- 

le pages 

and the 

omicide. 

role of 

estions 

1 on the 

defend- 

uestions 

ury and 

ty trial. 

tters re- 

hse with 

hd, final 

e coder 

of what 

DB 27. 

foils so 

br Or not 

e of the 

     

  

   

  

   

        

    

  

   

    

    

  

    
    

  

   
   

   

   

  

   

   
     

    

is ques- 

s having 

ia. In- 

tudents 

ch case. 

hseribed. 

abstract 

e to the 

binion of 

> assgim- 

@ 

    

  

   

   

  

    

   
   
   
    

    

         

     

  

[4 

McCLESKEY v. ZANT 355 

Cite as 580 F.Supp. 338 (1984) 

During the 1979-80 academic year, an- 

other questionnaire, simpler in form, was 

designed for use in obtaining data for the 
Procedural Reform Study. This question- 

“naire dropped the inquiries concerning 

whether the sentencing jury was aware of 

the aggravating and mitigating factors ap- 
pearing 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 

questionnaires. R 220-21, 227. The pro- 

fessional staff at the University of Iowa 

Computer Center entered the data obtained 

from the various Procedural Reform Study 

questionnaires into the computer. 

Yet another questionnaire was designed 

for the Charging and Sentencing Study. 

The last questionnaire was modified in 
three respects. First, Baldus included ad- 

ditional queries concerning legitimate ag- 

gravating and mitigating factors because 

he had determined on the basis of his expe- 

rience with earlier data that it was neces- 

sary to do so. Second, the questionnaire 

expanded the coverage of materials relat- 

ing to prior record. Third, it contained a 

significant section on “strength of the evi- 

dence.” R 274-77. After the new draft 
was produced and reviewed by several oth- 

er academicians, it was reviewed by attor- 

neys with the Legal 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 out- 

come 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 defend- 

ant, prior record of the defendant, informa- 

tion regarding contemporaneous offenses, 

details concerning every victim in the case, 

characteristics of the offense, statutory ag- 

gravating factors, a delineation of the de- 

fendant’s role vis-a-vis co-perpetrators’, in- 

formation on outcome of co-perpetrators’ 

  

cases, other aggravating circumstances 

such as the number of shots fired, miscella- 

neous mitigating circumstances relating to 

the defendant or the victim, the defend- 

ant’s defenses at the guilt trial, and the 

strength of the evidence. R 280-86. 

Again, all of these were categories of infor- 

mation 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. 

The principal data source for the Charg- 

ing and Sentencing study was records of 

the Georgia Department of Pardons and 

Paroles. This was supplemented with in- 

formation from the Bureau of Vital Statis- 

tics and questionnaires returned from law- 

yers and prosecutors. Also, some informa- 

tion was taken from the Department of 

Offender Rehabilitation. R 293-94, DB 39. 

The records from the Department of Par- 

dons and Paroles included a-summary of 

the police investigative report prepared by 

a parole officer, an FBI rap sheet, a per- 

sonal 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 Pa- 

roles Board investigative summaries were 

always done after conviction. 

Baldus and Gates again developed a writ- 

ten 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 Stu- 

dy the coders were given-two-generaliles 

to resolve ambiguities of . The first 

rule was that the ambiguity ought to be 
resolved in_a direction that supports the 

determination of the factfinder. The sec- 
cane sss—— 

ond rule is that when the record concerning 

a fact 1s ambiguous the mterpretation 
Lg 

    
  

  

  

  

 



356 

should support the legitimacy of the sen- 

tence. R 423, EG 4. : 

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 as- 

sumed that if the file indicated that a wit- 

ness who would likely have seen the infor- 

mation 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 ap- 

pear in the Parole Board summaries, then 

the coder treated that factor as not being 

present. R 521.7 * 

In addition to coding questionnaires the 

coders were asked to prepare brief summa- 

ries 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 585. 

All 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 “cleaned” the data as 

it was keypunched; that is, where an im- 

permissible code showed up in a question- 

naire it was reviewed by a student coder 

who re-coded the questionnaire based upon 

a reading of Baldus’s file. R 600-08. 

After the data gathered for the Charging 

and Sentencing Study was entered on com- 

puter 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 al! 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. 

580 FEDERAL SUPPLEMENT 

It appears to the court that the research- 

ers attempted to be careful in that data- 

gathering, but, as will be pointed out here- 

after, the final data base was far from 

perfect. An important limitation placed on 

the database was the fact that the ques- 

tionnaire could not capture every nuance of 

every case. R 239. 

Because of design of earlier question- 

naires, 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 cap- 

tured. In these situations where there was 

only a limited number of foils, the respons- 

es were coded in the order in which the 

student discovered them, and, as a conse- 

quence, those entered were not necessarily 

the most important items found with re- 

spect to the variable. R 545. The pres- 

ence 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. 

In the Charging and Sentencing Study as 

well, there were instances where there was 

a limit on the number of applicable respons- 

es which could be entered. For example, 

on the variable “Method of Killing,” only 

three foils were provided. R 461, EG 6A, 

p. 14. The effect of this would be to re- 

duce 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 

contributing assaultive behavior. R 463. 

The information available to the coders \ 

from the Parole Board files was very sum- 

mary 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 mur- 

der. The coder could not, however, deter- 

mine 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 statements  



research- 

hat data- 
out here- 

far from 

placed on 

the ques- 

nuance of 

question- 
i to only 

There 

lere were 

to the full 

itigating 

e not cap- 

there was 

respons- 

hich the 

5 a conse- 

ecessarily 

with re- 

The pres- 
d factors 

judgment 
deed miti- 

ext of the 

F Study as 

here was 

© respons- 

example, 

ng,” only 

, EG 6A, 

be to re- 
that had wath TW 

eath. In 

generally 

ly caused 

ny other 

R 463. 

he coders 

ery sum- 

hmple, on 

aires the 

defendant 

the mur- 

Fer, deter- 

the file 

ing about 

b. R 467- 

2 2 

McCLESKEY v. ZANT : 357 
Cite as 580 F.Supp. 338 (1984) 

were available to the prosecution and, pre- 

sumably, to the jury, that information was 

knowable and. prohak . It was not, 
‘however, captur ISFRE the study. The Pa- 

role Board summaries themselves were 
gE. 

brief and the police Yeports Tro which the 
  
  

  

‘parole o epare repor re 

typically only two or 0 or three pages long. R 
1343. % 

Because of the incompleteness of the Pa- 

role Board studies, the Charging and Sen- 

tencing Study contains no information 

about what a prosecutor felt about the 

edibility of any witnesses. R 1117. It 

was occasionally difficult to determine 

whether or not 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 Jati- 

tude allowed The coders in drawing infer- 

ences 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 dif- 

ferent coding. R 370, 386-87. Also, there 

would be differences in judgment among 
the coders. R 387. 

Several questionnaires, including the one 

for McCleskey and for one of his co-perpe- 

trators, 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 Sentencing Study indicated 

that he did not actively resist or avoid 

arrest. His questionnaire for the Proce- 

dural Reform Study indicated that he did. 

R 1129-30; Res. 2, Res. 4. Further, as 

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 judg- 

ments made by the students, Katz tested 

the consistency of coding of the same fac- 

tor in the same case as between the two 

studies as to 30 or $0 variables. There .. 

were 361 cases which appeared in both 

studies. Of the variables that Katz select- 

ed there were mis-matches in coding in all 

the variables. Some of the 

mis-matches were significant and occurred 

within factors which are generally thought 

to be important in a determination of sen- 

tencing 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 

Immediate Rage Motive 

Execution Style Murder 

Unnecessary Killing 

Defendant Additional Crimes 

Bloody 

Defendant Drug History 

Victim Aroused Fear in the Defendant 

Two or More Victims in All 

Victim is a Stranger 

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 suffi- 

cient circumstances in the file to suggest 

the possibility that it is present and to 
preclude the possibility that it is not  



358 

present. In the Charging and Sentencing 

Study there are an average of 33 variables 

ifeach questionnaire which are coded as 

TI The researchers treated that infor- 

mation as not known to the decision-maker. 

R 1155. Under the protocol employed, the 

decision to treat the ‘“U” factors as not 

beng present in a given case seems highly 

questionable. The threshold criteria for as- 

suming that a factor was not present were 

extremely low. A matter would not have 

been coded ‘“U” unless there was some- 

thing 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 deci- 

sion 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 

“J.” Those variables coded “U” in more 

than ten percent of the questionnaires are 

_ as follows (the sample size in the Charging 

and Sentencing Study is 1,084): 

Plea Bargaining 

Employment Status of the Defendant 

Victim's Age 

Occupational Status of the Victim 

Employment Status of the Victim 

Defendant's Motive was Long-Term 

Hate 

Defendant's Motive was Revenge 

Defendant's Motive was Jealousy 

Defendant's Motive was Immediate 

Rage : 

Defendant's Motive was Racial 

Animosity 

Dispute While under the Influence of 

Alcohol or Drugs 

Victim Mental Defective 

Victim Pregnant 

Victim Defenseless due to Disparity in 

Size or Numbers 

Victim Support Children 

Victim Offered No Provocation 

Homicide Planned for More than Five 

Minutes 

Execution-Style Homicide 

Victim Pleaded for Life 

Defendant Showed No Remorse for 

Homicide 

Defendant Expressed Pleasure With 

Homicide 

Defendant Created Risk of Death to 

580 FEDERAL SUPPLEMENT 

Others ; 

Defendant Used Alcohol or Drugs 

Before the Crime 

Effect of Alcohol on the Defendant 

Defendant Showed Remorse 

Defendant Surrendered within 24 Hours 

Victim Used Drugs or Alcohol Before 

Homicide : 

Effect of Drugs on Victim 

Victim Aroused Defendant's Fear for 

Life 

Victim Armed with Deadly Weapon 

History of Bad Blood Between 

Defendant and Victim 

Victim Accused Defendant of 

Misconduct 

Victim Physically Assaulted Defendant 

at Homicide 

Victim Verbally Threatened Defendant 

at Homicide 2 

Victim Verbally Abused Defendant at 

Homicide 

Victim Verbally Threatened Defendant 

Earlier 

Victim Verbally Abused Defendant 

Earlier 

Victim Had Bad Criminal Reputation 

Victim had Criminal Record 

665 

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 

wich are often thought to explain sentenc- 

ing outcomes and which were coded “U” in 

more than five percent of the question- 

naires included: 

Defendant's Motive was Sex 

Defendant's Motive Silence Witness for 

Current Crime 

Dispute with Vietim/Defendant over 

Money/ Property 

Lovers’ Triangle 

Victim Defenseless due to Old Age 

Defendant Actively Resisted Arrest 

Number of Victims Killed by the 

Defendant 

Defendant Cooperated with Authorities 

Defendant had History of Drug and 

Alcohol Abuse 

Victim Physically Injured Defendant at 

Homicide 

Victim Physically Assaulted Defendant 

Earlier 

68 

72 

76 

74 

63 

67 

66 

72 

79 

63 

71 

= 

Many of the variables showing high_rates. 

of “U _codings.were used in Baldys’s-mod 

els. For example, in Exhibit DB 83, models 

controlling for 13, 14 and 44 variables, re- 

spectively, are used in an effort to measure 

racial disparities. In the 13-variable model, 

five of the variables have substantial num- 

bers of “U” codes. In the 14-variable mod-  



    

  

251 

220 

913 

125 

244 

168 
220 

155 

173 

117 

159 

185 

300 

100 

156 

665 
946 

bles were 

nt of the 

tim was 

variables 

sentenc- 

ed “U” In 

question- 

    

   

  

   

    

68 

72 

76 

74 

63 

67 

66 

72 

19 

    63 

    

71 

    

  

high rates 

dus’s mod- 

83, models 

riables, re- 

0 ure 

el 

hntial num- 

riable mod- 

          

   
   

  

    

      

    

    

   

       

McCLESKEY v. ZANT : 359 

Cite as 580 F.Supp. 338 (1984) 

el, seven variables are likewise affected, 

and in the 44-variable model, six were af- 

- fected. Similar problems plagued the Pro- 

cedural Reform Study. Respondent's Ex- 

hibits 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 CLL aan dn pli 
on Tive small models. This had the effect 

generally of depressing the coelTicients of 

racial disparity by as much as 25%. In the 

three models which controlled for a rela- 

tively small number of background varia- 

bles, he also re-computed the standard devi- 

ation based on his worst case analysis In 

the two larger models © ietr "he ran 

these studies, he did not compute the stan- 

dard 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 statistical- 

  

  

  

  

  

  

sions] 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” 

ata made no effect on the results ob- 

ined. See generally GW 4, Table 1. 

In § conducts a 

worst case analysis which shows the re- 

sults upon re-coding “U” data so as to 

legitimize the sentence. Baldus testified 

that the coding of unknowns would not 

¢ outcome ol his analysis based on 

the experiments and these exhibits. ~The 

experiments do not, however, SUpDOrLanis 

onclusion, and it would appear to the court 

that the experi Ye not desigred 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 con- 

cludes 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 prob- 

lems associated with them. (For these pur- 

poses 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 aggravat- 

ing factor B3 and B7D, hate, jealousy, and 

a composite of family, lover, liquor, or bar- 

room quarrel. Baldus did not test any of 

his larger regressions to see what the ef- 

fect would be. R 1701, et seq, DB 96A, 

Schedule 4, DB 122, DB 123, Res. Exh. 

47A. 

In addition to the questionable handling 

of the “U” codes, there were other factors 

which might affect the outcome of the stu- 

dy where information was simply unknown 

or unused. In the Charging and Sentenc- 

ing Study data related with the response 

“Other” was not used IT Subsequentanaly- 

ses. In one factor, “special aggravating 

wre of the offense,” there were 139 

“Other” responses. R 1392, 1437. 

Cases where the race of the victim was 

  

  

    
ly significant in these larger order regres. 

      

unkno were co Tincl 

imputation ic- 

tim was the same as the race of the defend- 

ant. R 1096. 4 

There were 23 or 24 cases in the Proce- 

dural 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 proportion of these 

that probably proceeded to a penalty trial. 

The criteria for deciding precisely which of 

these cases proceeded to a penalty trial and 

which did not is unknown to the court. R 

1101. Ii is not-beyend-posSibility~that the 

treatment of these 62 cases could have 

wed t . The data becomes im- 

portant in modeling the prosecutorial deci- 

sions to seek a death sentence after there 

had been a conviction. Based on his sam- 

ple 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 

  

  

  

  

  

  

 



360 580 FEDERAL SUPPLEMENT 

divided by 1084 cases in the sample equals 

2.3), the effect would be the same as if he 

, were missing data on 143 cases. Said an- 
| other 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 informa- 

tion on race of the victim where there were 

multiple victims. R 1146-47. Further, 

Baldus was without information on wheth- 

er 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 credi- 

bility problem with a witness. Such infor- 

mation 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 proba- 

tion. 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 dala 

base has substantial flaws. gndthat-the 

petitioner has failed to establish by df 

preponderance of the evidence that it. is 

essentially trustworthy. As demonstrated 

above, there are errors in coding the ques-\ 

NI39. At this point jt is important-te-ermpha- tionnaire 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 deci- 

sion made by prosecutor? 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 prem- 

ise of a statistical case that the data base . 
numerically mirrors reality. If it does not 

in substantial degree mirror reality, any 

"inferences empirically arrived at are un- 

trustworthy. 

4. Accuracy of the Models 

In a system where there are many fac- 

tors which affect outcomes, an unadjusted 

binomial analysis cannot explain relation- 

ships. 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 inter- 

est, Baldus testified that if a particularly 

important background variable is not con- 

trolled for, the coefficient for the variable 

of interest does not present a whole pic-. 

ture. Instead, one must control for the 

background effects of a variety of factors 

at once. One must, Baldus testified, identi- 

fy 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 fac- 

tors is limited in its power to support 5 

inference of discrimination. BR 146-47 [Be 
cause he realized the necessity of control \ 

ling for all important background varia- 

bles, 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 question- 

naires to obtain information on every varia- _ 

ble he believed would bear on the matter of 

death-worthiness of an individual defend- 

ant’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 

  

size a difference between the Procedural 

Reform Study and the Charging and Sen- 

tencing Study. The Procedural Reform 

Study contains no measures for strength of” 

thé evitdence—Beeause-Batdus—was—of the 

opinion that this could be a factor in wheth- 

P  



     
      

e cases 
mber of 

e is not 

mention 

br prem- 

ta base 

loes not 

ty, any 
are un- 

        
    

  

   

   
   

    

    

    

  

    

    

    

     

    
    

     

     
   

   

hny fac- 

hdjusted 

elation- 

expert 

Et upon 

empting 

of inter- 

icularly 

hot con- 

variable 

ole pic- 

for the 

factors 
i, identi- 

em and 

Hus also 

ot focus 

hind does 

und fac- 

port an 

47. Be- 

control- 

d varia- 

ed with 

from his 

alifornia 

uestion- 

ry varia- 

atter of 

defend- 

e a data 

bl for all 

194-95, 

empha- 

ocedural 

hnd Sen- 

Reform 

eng 

S 

wheth- 

    

     
     

  

     

   

    

   

  

    

McCLESKEY v. ZANT 361 

Cite as 580 F.Supp. 338 (1984) 

er 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 fur- 
ther statistical analysis. R 659. Hg testi- 
fied without further explanation that these 

230 variables were the ones that he would 

expect to explain who received death sen- 

tences and who did not. R 661. X 631. 

~ {Based on this testimony it follows that any 

model which does not include the 230 varia- 

bles may very possibly not present a whole 

picture. 

The 230 variable-model has several defi- 

ciencies. It assumes that all of the infor- 

" mation available to the data- gatherers was 

available to each decision-maker in the sys- 

tem 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 retrospective 

view of the facts and circumstances. That 

1S 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 hind- 

sight. 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 mod: 

el produced fromthe 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 rea- 

sons 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 depend- 

ent variable (here death sentencing rate) is 

accounted for by the independent variables 

included in the model. This measure is 

known as an adjusted r?. The r? values for 
a model which is perfectly predictive of 

changes in the dependent variable would 

have a value of 1.0. The r? values for the 

models utilized by Woodworth to check the 

validity of his statistical techniques range 

from .15 to .39. The r? for the 230-variable _ 
model is between .46 and .48. The differ- 

ence between the r? value and 1 may be sh AEE 

explained by one of two hypotheses. The 

first is that the other unaccounted-for fac- 

tors at work in the system are totally ran- 

dom or unique features of individual cases 

‘that. caniiot be accounted for in any system- - 

atic way. The other theory is that the 

model does not model the system. R 1266- 

69, GW 4, Table 1. As will appear hereaf- 

ter, neither Baldus nor Woodworth believes 

that the system is random. 

In summary, the r? measure is an indicia 

of how successtul-ome tras been with one's 

model in predicting the actual outcome of 

cases. R 1489. As the 230-variable model 

dogs, not predict the outcome in half of the 

“eer and none of the other models produc- | + 

ed by the petitioner has an r®> even ap- 

proaching .5, the court is of the opinion 

that none of the models are sufficiently 

predictive to support an inference of dis- 

crimination. 

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 the model is not 

appropriately inclusive of all of the system- 

atic factors, then the “U” value will contain 
random influences as well as systematic 

influences. X 90. The r® value is a sum- 
mary statistic which describes cottectively 
all of the “U” terms: 

Sometimes it 15 said that “U” measures 

random effects. Woodworth testified that 

  

   

         



362 

randomness does not necessarily reflect ar- 

bitrariness. He continued, “The world re- 

ally isn’t random. When we say something 

is random, we simply mean it’s unaccounta- 

ble, and that whatever does account for it 
is unique to each case.... This random- 

ness 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 ¢ircum:". 
stances or uncontrolled-for variables which 

preponderate over the controlled-for varia- 

bles in explaining death sentencing rates. 

/ This is but another way of saying that the 

models presented are insufficiently pre- 

_dictive to support an inference of discrimi- 

“nation. 

None of the models presented have ac- 

counted for the alternative Mypothesis that 
the race effects observed cannot be ex- 
plained by unaccounted-for factors. This is 
further: illustrated -by an experiment that 

Katz conducted. He observed that when 
a 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 .07 which was statistically 

significant at the .00000000000000000005 

level. He further observed that by the 

time Baldus had controlled for 230 varia- 

bles, 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 

2. The teaching of this chart has a universal 
lesson for courts. 
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 statisti- 
cal significance leveled out, and, therefore, he 

That lesson is that where: 

580 FEDERAL SUPPLEMENT 

the race of the victim coefficient would 

become statistically insignificant with a 

model with a higher r? which better ac- 
counted for all of the non-racial variables 

including interaction variables and compos- 

ite variables which could be utilized. R 

1563-70. This methodical decline in statis- 

tical 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.2 There, it will 

be observed: that if an additional 20 back- 

ground 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 decreases 

to .04 and .05, respectively3™ + 

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 hypoth- 

esis, the court does learn one thing: It was 

said that one indication of the completeness 

of_a model is when one can find no addi- 

tignal variables 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, Tt 1s further 

evidence that they are not sufficiently de- 

signed 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 dis- 

crimination. 

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 un- 
der .00003 to something just over .005.  



   
t+ would 

with a 

tter ac- 

ariables 

COmMpOs- 

, ed. R 

n statis- 

¢ vietim 

as more 

nstrated 

wched to 

Ctowill 

0 back- 
the 230- 

usted to 

gr rates 

. of the 

ind race 

ne-third, 

ecreases 

« unable 

» Katz's 

fered In 

- hypoth- 
- Jt was 

leteness 

no addr 

1d affect 

by Katz 

in the 

utilized 

further 

ently de- 
enerally 
UR 
ly 

i.e court 
lized by 

friciently 

Fe of dis- 

aire the 

tables to 

i¢ had no 

a number 

the effect. 

GW 6 for 

main flat, 

the 10 to 

ic models, 

ng just un- 
jo   

McCLESKEY v. ZANT 363 

     
Cite as 580 F.Supp. 338 (1984) 

5. Multi-Colinearity. 

As illustrated in Table 1, the petitioner 

introduced a number of exhibits which re- 

flected 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 wheth- 

er the racial variables are serving as prox- 

jes for other permissible factors. Stated 

another way, the respondent contends that 

the Baldus research cannot support an in- 

ference of discrimination because of multi- 

colinearity. 

If the variables in an analysis are correl- 

ated with one another, this is called multi- 
  

  

colinearity. Where this exists the coeffi- 
Bi 

cients 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 de- 

gree of interrelationship among the varia- 
bles, the regression coefficients are some- 

what distorted by that relationship and do 

not measure exactly the net impact of the 

independent variable of interest upon the 

dependent variable. Where multi-colineari- 

ty obtains, the results should be TRRed 

with great-cantion. .. oo Tag 

In the Charging and Sentenens Sr a 

very substantial proportion of the variables 

are correlated to the race of the victim and 

  

  

  

  

  

  

  

cance will not always detect errors in coef- 

ficients produced by multi-colinearity. R - 

1138, DB 92. 

Katz conducted experiments which. fur- 

ther demonstrated the truth of an observa- 

tion which Baldus made: white-victim cases 

tend to be more aggravated while black-vie- 

tim cases tend to be more mitigated. Us- 

ing the data base of the Procedural Reform 

Study, Katz conducted an analysis on 196 

  

  

  

‘white-victim cases and 70 blaek-vieHim 
  

  

to the death sentencing result. R 1T41-42. 
All or a big proportion of the major non- 

statutory aggravating factors and statuto- 

ry aggravating factors show positive cor- 

relation with both the death sentencing re- 

sult and the race of the victim. R 1142. 

More than 100 variables show statistically 

significant relationships with both death 

sentencing results and the race of the vie- 

tim. R 1142. Because of this it is not 

possible to say with precision what, if any, 

effect the racial variables have on the de- 

pendent variable. R 1148, 1649. Accord- 

ing to Baldus, tests of statistical signifi- 

  

4. Katz utilized Baldus’s characterization of fac- 

tors as to whether they were aggravating or 

ses which had in common the presence of 

the statutory aggravating factor B2.! Fac- 

tor by factor, he determined whether white- 

victim cases or black-victim cases had the 

higher incidence of each aggravating and 

mitigating factor. The experiment showed 

that there were 25 aggravating circum- 

stances which appeared at a statistically 

significant higher proportion in cases in- 

volving one racial group than they did in 

the other. Of these 25 aggravating cir-- -- 

cumstances, 23 of these occurred in white- 

victim cases and only 2 occurred in black- 

victim cases. Likewise with mitigating fac- 

tors it was determined that 12 mitigating 

factors appeared in a higher proportion of 

black-victim cases whereas only one miti- 

gating feature appeared in a higher propor- 

tion of white-victim cases. The results of 

this latter analysis were also statistically 

significant. R 1472, et seq., Res.Exh. 28. - 

Similar or more dramatic results were ob- 

tained 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 pres- 

ence or absence of aggravating or mitigat- 

ing circumstances in white- and black-vic- 

tim cases, using the Charging and Sentenc- . 

ing Study data. Only aggravating or miti- 

gating circumstances shown to be signifi- 

cant at the .05 level were utilized. Un- 

known responses were not considered. 

With but slight exception, each aggravat- 

ing factor was present in a markedly high- 

mitigating.    

    

      

  
           



Qn’ 

364 

er 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-vie- 

tim cases. Res.Exh. 49, 50, R 1534-35. 

Similar observations were made with refer- 

ence to cases disposed of by conviction of 

voluntary manslaughter. Res.Exh. 51, 52, 

R 1536. 

Yet another experiment was conducted 

by Katz. He compared the death sentenc- 

FY. | Ying rates for killers of white ard black 

victims at steps progresSsIBg Upwards from 

the presence of no statutory aggravating 

_circumstances to the presence of six such 

circumstances. At the level where there 

were three or four statutory aggravating 

circumstances present, a_statistically sig- 

pificant race of the victim effect appeared. 

He then compared the aggravating and mi- 

tigating circumstances withir—each group 

and in each instance found on a factor-by- 

factor basis that there was a higher num- 

ber of aggravating circumstances which oc- 

curred in higher proportions in white-victim 

cases and a number of mitigating factors 

occurred in higher proportions in black-vic- 

tim 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-coli- 

nearity in the data. Berk found rather 

little multi-colinearity. R 1756. Wood- 

worth observed that multi-colinearity has 

the effect of increasing the standard devia- 

tion of the regression coefficients, and he 

observed that this would reduce the statis- 

tical significance. According to Wood- 

worth the net effect of multi-colinearity 

would be to dampen the effect of observed 

racial variables. R 1279-82. He also testi- 

fied that he had assured himself of no 

effect from multi-colinearity because they 

were able to measure the disparities be- 

tween 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. 

580 FEDERAL SUPPLEMENT 

The court cannot agree with Wood- 

worth’s assessment. He and Baldus seem 

to be at odds about whether tests of statis- 

tical significance will reveal and protect 

against results produced by multi-colineari- 

ty. 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 mitigation), 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 ma- 

jor premise is that he is comparing cases 

with similar levels of aggravation and miti- 

gation. 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 mod- 

el. None of Woodworth’s models on which 

he performed his diagnostics are large or- 

der regression analyses. Accordingly, 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 

aggravating features, and in the black-vie- 

tim cases there are unaccounted-for sys- 

tematic mitigating features. As will be 

seen hereafter, aggravating factors do in- 

crease the death penalty rate and mitigat- 

ing - factors do. decrease, the death penalty 

rate. Therefore; at Teast the extent that 

there are ‘unaccounted-for aggravating or - 

mitigating circumstances, white-vietim 

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 sub- 

stantially diminishes the weight to be ac 

corded 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 peti- 

tioner has failed to make out a prima  



ith Wood- 

baldus seem 
its of statis- 

hnd protect 

Iti-colineari- 

convincing. 

measure a 

sentencing 

black-victim 

vation (and 

he positive 

ariable are 

nearity. If 

ere correct, 

The ma- 

aring cases 

on and miti- 

e discussed 

pring cases 

ion indices 

in the mod- 

bls on which 

re large or- 

dingly, they 

ly either of 

mstances in 

hite-victim 

systematic 

e black-vic- 

ed-for sys- 

As will be 

ctors do in- 

hind mitigat- 

ath penalty 

extent that 

ravating or 

hite-victim 

aggravated 

become a 

r mitigating 

learity sub- 

ht to be ac- 

statistical 

and Other 

aid this 

at eti- 

t a prima 

McCLESKEY v. ZANT 865 
Cite as 580 F.Supp. 338 (1984) 

facie case of discrimination based either 

on race of the victim or race of the de- 

fendant disparity. There are many rea- 
sons, 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 
tase 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 peo 

ries on ra nds. And those differ- 

categories receive death at different 

rates.” R 1277. An analysis of factors 

identified by Baldus as aggravating and 

mitigating, when adjusted to delete un- 

  

system when measured against case out- 
———— 

come. Virtually without exception, the 
——— . . 

presence of aggravating factors increases 

as the outcome moves from voluntary man- 

slaughter to life sentence to death sen- 

tence. Conversely, factors identified by 

Baldus as being mitigating decrease in 

presence in cases as the outcome moves 

from voluntary manslaughter to life sen- 

tence to death sentence. R 1532. R 

Exh. 48. 

  

ervations, 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 imposi- 

tion of the death penalty in Georgia is a 

random event unguided by rational 

thought. The central question ls whether 

any of the rationales for 1 ing _or 

not imposing of the death penalty are 

based on impermissible factors such as 
race of the delendantL.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 vic- 

  

  

tim. Further, he was of the opinion that 

disparities in death sentencing rates do ex- 

ist based on the race of the defendant, but 

they are not as substantial and not as 

systematic as is the case with the race of 

the victim effect. He was also of the opin- 

ion that both of these factors were at work 

in Fulton County. R 726-29. The court 
does mot share Dr. Baldus’s opinion to 
the extent that it expresses a belief that 
either of these racial considerations de- 

termines 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 o erent 

statistical studies and they all Ry the 

same results. R 1081-82. This basis for 

t inion is insubstantial for two reasons. 

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 insignifi- 
known values, gives a picture of a ‘rations : 

cant 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. ort Baldus'’s 

confidence is predicated navigation- 

al 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 

supporting themselves from the booty of 

ships which have foundered after taking 

bearings on navigational aids which have 

been mischiévously rearranged by the is- 

landers. 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 bear- 

ings off of many models, none of which.are 
adequately inclusive to predict outcomes 

With any regularity. 

Baldus has testified that his 230-variable 

model contains those factors which might 

best explain how the death penalty is im- 

posed. The court, therefore, views results 

produced by that model as the most reliable 

  

  

  

  

  

  

  

I 

 



366 

evidence presented by the petitioner. Addi- 

tionally, in some tables Baldus employed a 

250-variable model which adjusted for 

death sentencing rates after appellate re- 

view 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) 

  

  

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 indict- 

ment 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 find- 

ngs on the racial variables. He says that 

the impact of the racial variable is small. 

R831. 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 hap- 

pened, 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 deter- 

580 FEDERAL SUPPLEMENT 

mines what happens. in the system. If 

there were, you could make highly accu- 

rate predictions of what's going to hap- 

pen. This is a system that is highly 

discretionary, highly complex, many fac- 

tors 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. 

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 ele- 

vated risk of a death sentence. There's 

no suggestion in this research that there 

is a uniform, institutional bias that ad- 

versely affects defendants in white vie- 

tim 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 testi- 

mony of other witnesses, and the court's 

own analysis of the data, it_agrees that 

any racial variable is not determinant o's 

who is going to receive the death penalty, 

and, further, the court agrees that there 

is no support for a proposition that race 

Fas 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 deci- 

sion to impose the death sentence. This 1s 

one of the few exhibits prepared by Baldus 

which utilizes data both from the Procedur- 

al 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.  



     
     

     
    

       

     
   

       

        

       
   

       

   tem. If 

ly accu- 

r to hap- 

s highly 

any fac- 

o choice, 

system. 

of many 

e results 

itributing 

   

   

  

   

   

   r. Baldus 
   
     

5 through 

itrated in 

b's an ele- 

~. There's 
that there 
L that ad- 

hite vie- 

or a black 

s nothing 

's a very 

        

   

    

   
   
   

   

    

   

  

   

the testi- 

he court's 

hrees that 

inant of 

hh penalty, 

that there 

| that race 

e. 

i in part in 

the most 

udy. This 

victim and 

ect in the 

the death 

ncing deci- 

ce. This is 

i by Baldus 

e Procedur- 

hrging and 

umn shows 

ing for 230 

Sergamacing 

olor 

            

   

      

  

McCLESKEY 
Cite as 580 F.Supp. 

TABLE 

REGRESSION COEFFICIENTS (WITH 

SIGNIFICANCE IN PARENTHESES) 

v. ZANT 
338 (1984) 

3 

THE LEVEL OF STATISTICAL 

FOR RACIAL VARIABLES IN 

ANALYSES OR PROSECUTORIAL DECISIONS TO SEEK AND JURY 

DECISIONS TO IMPOSE CAPITAL PUNISHMENT 

I. Prosecutor Decision to Seek a Death Sen- 

tence 

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 Decisions ! 

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 

  

1 Unweighted data used. 
2 Simultaneous adjustment for all factors in the 

         
   

  

   

   

    

   

      

   

        

   

   

   
   

   

   

   
   
   

  

   
   

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 18 

(.06) (.0001) 
12 18 

(.01) (.0001) 

09 14 
(42) (.002) 
01 03 

(.96) (41) 

2 05 
(37) 
06 
(42) 

04 
(42) 
02 
(.75) 

files was not possible because of the limited 

number of penalty trial decisions. (From DB 95). 
a a a CERI e) Fad 

Lo - 

The coefficients produced by the 230- 

variable model on the Charging and Sen- 

tencing Study data base produce no statisti 

cally 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 prosecu- 

tors. Neither model produces a statistical- 

ly significant race of the defendant effect 

at the level where the prosecutor 18 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 sig- 

    

  

          

      
               

       

      
        

    



368 

nificant 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 

fon-racial_variables, including strength 

of the_ evidence, produce No statistically 

significant evidence th, ~pace plays a 

Part in either of those d®isions in the 

State of Georgia.’ 

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 researcher arbitrarily to 

exclude factors on the basis of artificial 

criteria which experience and other re- 

search have indicated 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 mod- 

el, set out in Table 3, does not meet the 

criterion of having been validated by some- 

one knowledgeable about the inner work- 

ings 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 Tower in the Procedural Reform 

Stddy 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 ran- 

dom 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. ‘Anothey in- 

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 con- 

cerning the existence of a disregard by Southern 

officials for the value of black life. 

580 FEDERAL SUPPLEMENT 

teresting observation from this study is 

that even when the data is artificially mani- 

_pulated, no statistically significant race of 

the victim or race of the defendant effect 

appears at the jury decision level. Cast) 

this table demonstrates a 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 1s not statistically significant. 

Finally, this table is an illustration of a 

point which the court made earlier. At the 

beginning, in assessing the credibility 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 out- 

comes based on the larger scaled regres- 

sfoTis Tor the racial variables at the jury 

Sentencing level. It is said that the data 

was not provided because it was not possi- 

ble 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 meth- 

ods employed, it does not understand that 

the analysis was impossible, but instead 

understands that because of the small num- 

bers the results produced may not have 

been statistically significant. 

The figures on racial disparities in prose- 

cutorial 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 anal- 

ysis of the statewide data in the Charging 

and Sentencing Study was done in an effort 

to measure the race of the victim and race 

of the defendant effects at different stages 

6. The regression coefficient of an independent 

variable would be the same regardless of wheth- 

er it was a rare event or a frequent event. X 33.  



udy is 

ly mani- 

race of 

effect 

Last, 

of the 

of the 

of the 

hetimes 

indants 

hgainst 

atever 

ificant. 

134! of a 

At the 

lity of 

hat all 

artisan 
results 

b worst 

were 

p court. 

o out- 

egres- 

he jury 

e data 

possi- 

ent for 

limited 

rom all 

meth- 

d that 

nstead 

11 num- 

t have 

prose- 

do not 

es that 

b of the 

n anal- 

harging 

| effort 

d race 

stages 

pendent 
i wheth- 
Ee X 33, 

McCLESKEY v. ZANT “ 

Cite as 580 F.Supp. 338 (1984) REA 0 id 

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 

Pe the result of bias at a plea bargaining 

stage.® This is not established by the evi- 

dence, and it is immaterial to this case, for 

Baldus did not believe that McCleskey’s 

case would have had any likelihood of -be-. 

ing disposed of on a voluntary manslaugh- 

Cr plea. R 1064-65. Baldus noted that | 

: : J there were strong effects with respect to 

both race of the defendant and race of the 

victim at the plea bargaining 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 dis- 

parities noted at the plea bargaining stages 

could be explained by any of the current 

theories on the factors governing plea bar- 

gaining. R 1159-63. 

7. What a Multivariate Regression 

Can Prove 

“Before one can begin to utilize the re- 

sults of the Baldus study, whether from 

the larger order regressions or from the 

small models, an understanding of the tech- 

niques 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. 

Regression analysis is a computational 

procedure that describes how the average 

outcome in a process, here the death sen- 

tencing rate, is related to particular charac- 

7. Stepwise regression is a process carried out by 

a computer which selects the background varia- 

bles 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 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 ac- 

quainted with how the process actually works. 

teristics of the cases in the system. A 

least squares regression coefficient dis- 

plays the average difference in the death 

penalty rate across all cases caused by the 

independent variable of interest. In a re- 

gression procedure one may theoretically 

measure the impact of one variable of in- 

terest while “controlling” for other inde- 

pendent variables. Conceptually, the coef- 

ficient of the variable of interest is the 

numerical difference in death sentencing 

rates: between all cases which have the 

variablé of interest and all cases which do 

not. R 689, et seq., 1222-23. The chief 

assumption of a weighted least square re- 

gression is that the effect of the variable of 

interest 1s consistent across all cases. 

Woodworth Testified that that assumption 

was not altogether warranted in this case.’ 

Trat 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 fac- 

tors in common were grouped into four 

subgroups. The race of the victim dispari- 

ty 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 717. 

Statistical significance is another term 

which the court and the parties used regu- 

larly. 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 combina- 

tion of events in the charging and sentenc- 

ing process that may produce an accidental 

disparity which is not systematic. Statisti- 

8. McCleskey was offered a life sentence in re- 

turn for a guilty plea. (See State Habeas Tran- 

script, Testimony of Turner). 

9. He testified, however, that the data was inter- 

pretable because he convinced himself that the 

violations of the assumption were not in them- 

selves responsible for the findings of significant 

racial effects. R 1223-24, 1228.  



370 

cal significance 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. R 1244-45 
Tests of statistical significance are a meas- 
ure 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 signifi- 
cance 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 statistical 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. Further, 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” 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 compa- 
rable 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 ac- 
tual outcome in terms of the factors that it 
is given. R 1487-88. For example, if a 
regression equation were given ten inde- 
pendent variables in a stagewise process, it 
would guess at the regression coefficient 
for the first variable by measuring the 

580 FEDERAL SUPPLEMENT 

incremental change in the dependent varia- 
ble caused by the addition of cases contain- 
ing a subsequent independent variable. X 
29. After the initial mathematical compu- 
tation, the equation then goes back and 
re-computes the coefficients it arrived at 
earlier, using all of the subsequent regres- 
sion coefficients that it has calculated. It 
continues to go through that process until 
coefficients which best predict actual out- 
come are arrived at for each variable. X 
43-46. 

By its nature, then, the regression equa- 
tion can produce endless Series of Sella” 
filling prophecies because it always at 
tempts to explain actual outcomes based on’ 
whatever variables it is given. If, for ex- 
ample, 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-vietim 
cases where death was imposed. DB 63. 
Accordingly, the regression coefficients for ) 
the racial variables could have been artifi- 
cially produced because of the high inci- 
dence of cases. in- which the victim was white. © | rr 
Another feature of Baldus’s analyses is 

that he is trying to explain dichotomous 
outcomes (life or death) with largely dicho- 
tomous independent variables (multiple 
stabbing present or not present) and a re- 
gression equation requires continuous de- 
pendent and independent variables. Ac- 
cordingly, 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 simultaneous- 
ly for aggravating and mitigating circum- 
stances so that cases could be ranked on a 
continuous scale. R 1484. It is important  



t varia- 

ontain- 

ble. X 

compu- 

ck and 

ived at 

regres- 

ted. It 

ss until 

al out- 

ble. X 

bn equa- 

self-ful- 

ays at- 

pased on 

for ex- 

rmation 

received 

e right 

would 

against 

because 

t is the 

tion for 

e at bar, 

where 

k-victim 

DB 63. 

ients for 

bn artifi- 

igh inci- 

tim was 

alyses is 

lotomous 

bly dicho- 

(multiple 

hind a re- 

uous de- 

les. Ac- 

s for the 

not the 

b utilized 

ses. For 

bloped an 

alled an 
Ita orn 

, 4. 
ked on a 

mportant 

McCLESKEY v. ZANT 371 

Cite as 580 F.Supp. 338 (1984) 

to understand that the cases being com- 

pared in the regression analyses used here 

are not at all factually similar. Their prin- 

cipal identity is that their aggravation in- 

dex, 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 presump- 

tion is not only rebuttable, it is rebutted, if 

by nothing else, then by common sense. 

Xs Justice Holmes observed in Towne . 

Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 

372 (1918): 

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 circum- 

stances and the time in which it is used. 

Id. at 425, 38 S.Ct. at 159, quoting Lamar 

v. United States, 240 U.S. 60, 65, 36 S.Ct. 

255, 256, 60 L.Ed. 526 (1916). The same 

thought, it seems to the court, is apropos 

for the aggravation index. It allows a case 

with compelling aggravating circumstanc- 

_.es, 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 con- 

sidered 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 assumption that cases 

with similar aggravation indices are at all 

sTke. Further, the aggravation index for 

“any given case is a function of the varia- 

bles that are included in the model. Any 

change in the variables included in the 

model will also change the aggravation in- 

dex 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 exam- 

ple. Ina life sentence case, C 54, an ag- 

gravation index (or predicted outcome in- 

dex, R 1485) was computed using a six-vari- 

able model. Calculation produced an index 

of 50. Katz conducted four additional re- | 

gressions, each adding additional factors. 

By the time the more inclusive regression 

number five was performed, the aggrava- 

tion index or predicted outcome was .08 (0 

equals no death penalty, 1 equals death 

penalty). In a death case, C 66, the first 

regression analysis produced an index 

of .50. However, the aggravation coeffi- 

cient or predicted outcome rose to .89 when 

the facts of the case were subjected to the 

fifth regression analysis. Thence, two 

cases which under one regression analysis 

appeared to be similar, when subjected to 

another analysis may have a totally differ- 

ent aggravation index. Res.Exh. 40, R 

1483-1501. 

In interpreting the Baldus data it is im- 

portant to understand what he means when 

Tie says that he has controlled for other 

fmdependent variables Or held other individ- 

ual variables constant. hat these terms, 

usually mean is-that™a researcher has com- 

paFed cases where the controlled-for varia- 

ples are present in each case and where the 

cages are divided Into groups where the 

variable of interest is present and where 

the =variabte—of—mnterest—is~ TOL present. 

Thetis not wiat occurs in regression anal- 

ysis. 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 con- 

trolled for are present in all of the cases, In 

any of the cases, or present in the same 

combination in any of the cases. Conse- 

quently, other factors are not being held 

constant as that term Is usually used. See 

generally R 152, X 7. 19-25. 

Courts are accustomed to looking at fig- 

ures on racial disparity and understanding 

that the figure indicates the extent or de- 

gree of the disparity. It is often said that 

statistical evidence cannot demonstrate dis- 

crimination unless it shows gross dispari- 

ties. Contrary to the usual case, the court  



372 580 FEDERAL 

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 dispar- 

ify 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 demon- 

strate the relative importance of the racial 

variables by showing them in an array of 

coefficients for other variables. The 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 quantify- 

ing 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 un- 

able 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 individu- 

al. What they say, for example, that on 

the average, the race of the victim, if it is 

white, increases on the average the prob- 

ability (that) the death sentence 

would be given. 

Whether in a given case that is the an- 

swer, it cannot be determined from sta- 

tistics, 'R 1785, 7... 

SUPPLEMENT 

In summary, then, Baldus'’s findings 

Jrom 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 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 prin- 
cipal assumption which must be present 

for a regression analysis to be entirely 

reliable is that the effects must be ran- 

domly distributed—that is not present in 

the data we have. The regression equa- 

tion_is incapable 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 mot control for back- 

ground variables as (hal term is usmoily 

understood, nor does it compare identical 

cases. Because Baldus used an index 

method, comparable cases will change 

from model to model. The regression 

coefficients do mot quantitatively meas- 

ure the effect of the variables of interest. 

With these difficulties fit would appear \ 

that multivariate analysis is ill suited to 

provide the court with circumstantial evi- 

dence 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 find- 

ing that a prima facie case has been es- 

tablished with statistical evidence. Fi- 

nally, the method is incapable of produc- 

ing evidence on whether or mot racial 

factors played a part in the imposition of 

the death penalty in any particular case. 

To the extent that McCleskey contends | 

that he was denied either due process or | 

equal protection 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  



    

    

McCLESKEY v. ZANT 373 

Cite as 580 F.Supp. 338 (1984) 

mean that the system would tolerate high- issues in the case, some additional observa- 

ndings 
r yi er levels of aggravation in black victim tions are presented on Baldus’s study. 

ood in cases before the system imposes the death Some general characteristics of the sam- 

ble of penalty. 
ple contained in the Charging and Sentenc- 

ntical The respondent postulates a test of this Ing Study which the court finds of interest 

pole of thesis. It is said that if Baldus’s theory is are as follows. The largest group of de- 

had a correct, then one would necessarily find fendants was in the 18 to 25-year-old age 

death aggravation levels in black-victim cases &roup. Only ten percent had any history 

| prin- where a life sentence was imposed to be of mental illness. Only three percent were 

resent higher than in white-victim cases. This high status defendants. Only eight per- 

htirely seems to the court to be a plausible corol- cent of the defendants were from out of 

¢ ran- lary to Baldus’s proposition. To test this state. Females comprised 13% of the de- 

kent in b corollary, Katz, analyzing aggravating and fendants. Of all the defendants in the 

equa- ! mitigating factors one by one, demonstrat study 85% had no prior criminal record, 

itative ed that in life sentence cases, to the extent While 65% had some previous conviction. 

assign that any aggravating circumstance is more Co-perpetrators were not involved in 79% 

pears prevalent in one group than the other, of the cases, and 65% of the homicides 

ect to there are more aggravating features in the were committed by lovers in a rage. High 

uences group of white-victim cases than in The emotion in the form of hate, revenge, jeal- 

hoalysis ‘group of black-vicim cases. Conversely, °UsY or rage was present in 66% of the 

back- there were more mitigating circumstances cases. Only one percent of the defendants 

sually in which black-victim cases had a higher had racial hatred as a motive. Victims 

entical proportion of that circumstance than in provoked the defendant in 48% of the 

index white-victim cases. R 1510-15, 1540, Res. cases. At trial 26% confessed and offered 

hange Exh. 43, 53, 54. no defense. Self defense was claimed in 

ression 
33% of the cases, while only two percent of 

Because Katz used one method to demon- 1,0 jefendants relied upon insanity or delu- 

meas- 

i terest. 

hppear 
ited to 

ial evi- 

ation, 

court 

    
   

   

    

   

   
   

      

   

e. Fi- 

broduc- 

racial 

tion of 

r case. 

  

strate relative levels of aggravation and 

Baldus used another, his index method, the 

court cannot say that this experiment alone 

conclusively demonstrates that Baldus’s 

theory is wrong. It is, however, direct 

rebuttal evidence of the theory, and as” 

such, stands to contradict any prima facie 

case of system-wide discrimination based 

prima facie case. This court does not be- 

lieve that he has. 

9. Miscellaneous Observations on the 

Statewide Data. 

sional compulsion as a defense. Defend- 

ants 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 asso- 

“ciates, friends, or family members account- 

ed for 44% of the victims. Black defend- _ 

ants accounted for 67% of the total, and 
nee in 

a find- 
a ca 

cen es- - ok of the Vion eyen if x can be said only 12% of the homicides were committed 

that the petitioner has indee established a 0 qq 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 Sen- 

tencing Study it is learned that 94% of all 

ntends 
cess or : So that a reader may have a better feel homicide indictments were for murder. Of 

pethods ee ing of subsidiary findings Jin the studies those indicted for murder or manslaughter 

> to his and a better understanding of collateral 55% did not plead guilty to voluntary man- 

   

   

   

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 

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 

esting in view of the fact that only 69% of all had little if any gloss on the weaknesses of the 

defendants tried for murder were convicted. case from the defendant's perspective. 

This suggests either that the coders did not have Pda ah 
adn 

PY fF MN 

  

      
      

       

they studied indicated clear guilt. This is inter- 

      



374 

slaughter. There were trials for murder in 
45% of the cases and 31% of the universe 
was convicted of murder. In only ten per- 
cent of the cases in the sample was a 
penalty trial held, and in only five percent 
of the sample were defendants sentenced 
to death. DB 58, R 64-65. See also DB 
59, R 655. 

In his analysis of the charging and sen- 
tencing data, Baldus considered the effect 
of Georgia statutory- aggravating factors 
on death sentencing rates, and several 
things of interest developed. The statuto- 
ry aggravating circumstances are highly 
related or correlated to one another. That 
is to say that singularly the 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 commit- 

| little room for choice. If the imposition of 
the death penalty or the convicting of a 

ting 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 B10 factors are present together, 

| the death penalty rate is 89%. DB 64. 
Based on these preliminary studies one 
might conclude that a defendant commit- 
ting a crime like McCleskey’s had a greatly 
enhanced probability of getting the death / 

Penalty. oy pis 
Of the 128 death sentences in the Charg- 

ing and Sentencing Study population, 105 
of those were imposed where the homicide 
was committed during the course of ah 
enumerated contemporary offense. Fur 
ther, it~ is—noted—tiat—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 ar- 

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 

580 FEDERAL SUPPLEMENT 

rest. These, it is said, are the three statu- 
tory aggravating factors which are most 
likely to produce the death penalty, and all 
three were present de facto in McCleskey's | 
case. DB 61. 

When the 500 most aggravated cases in 
the system were divided into eight catego- 
ries according to the level of the aggrava- 
tion index, the death penalty rate rose dra- 
matically from 0 in the first two categories, ; 
to about 7% in the next two, to an 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 

N 

theory is known as the liberation. hiypethe=iss 
sis. The postulation is that the exércise of 
discretion is limited in cases where there is 

defendant is unthinkable because the evi- 
dence is just not there, or the aggravation 
is low, or the mitigation is very high, no 
reasonable person would vote for convie- 
tion or the death penalty, and, therefore, 
fimpermissible factors such as race effects 
[will not be noted at those points. But, 
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 free- 
dom to exercise discretion, and in. that area 
you see the effect of arbitrary or impermis- 
sible factors at work. R 884, R 1135.1 

Baldus did a similar rank order study for 
all cases in the second data base. He divid- 
ed the cases into eight categories with the 
level of aggravation increasing as the cate- 
gory number increased. In this analysis he 
controlled for 14 factors, but the record 
does not show what those factors were. 

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 sophisticated statisti- 
cal analysis, but even in its simplicity it paints 
no picture of a systematic deprecation of the 
value of black life.  



ree statu- 

are most 

y, and all 

Cleskey’s 

H cases in 

ht catego- 

aggrava- 

rose dra- 

ategories, 

nh average 
41% rate 

bat level 
ted of 58 

in the 40 

DB 90, 

h as this 

at earlier 

brs. This 

hypothe- 

kercise of 

e there is 

osition of 

ting of a 

b the evi- 

gravation 

high, no 

br convic- 

herefore, 

be effects 

ts. But, 

b looks at 

the facts 

e or the 

hder free- 

that area 

mpermis- 

R 1135.1 

tudy for 

He divid- 

with the 

the cate- 

alysis he 

be record 

rs were. 

the death 

ith penalty 
imposed. 

ed statisti- 
y it paints ‘® 

 McCLESKEY v. ZANT 

The experiment showed that in the i > 
five categories the death sentencing rate 

was less than one percent, and there was 

no race of the victim or race of the defend- 

ant disparity observed. At level six and 

nine statistically significant race of the vic- 

tim disparities appeared at the 9 point and 

27 point order of magnitude. Race of the 

defendant disparities appeared. at the last W 

three levels, but none were statistically sig" 129%,°1158 

lar azgraveling a were left out 
nificant. A minor race of the victim dispar- 

ity was noted at level 7 but the figure was 

not significant. The observed death sen- 

tencing 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 hypothe- 

sis 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 anal- 

ysis, shows higher racial disparities in the 

most aggravated level of cases and lower 

f no racial disparities in the mid-range of 

aggravation. Accordingly, the court is un- 

able to find any convincing evidence that 

the liberation hypothesis is applicable 1n 

  

  

    

  

  

    

  

this study. 

Baldus created a 39-variable model which 

was used for various diagnostics. It was 

also used in an attempt to demonstrate that 

given the facts of McCleskey’s case, the 

probability of his receiving the death penal- 

ty because of the operation of impermissi- 

ble factors was greatly elevated. Al 

though the model is by no means accepta- 

ble,!? it is necessary to understand what is 
  

  

  

12. This model has only one strength of the evi- 

dence factor (DCONFESS) and that occurs only 

in 26 percent of the cases. Many other aggra- 

vating and mitigating circumstances which the 

court has come to understand are significant in 

explaining the operation of the system in Geor- 

gia are omitted: Among these are that the 

homicide arose from a fight or that it was com- 

mitted by lovers in a rage. A variable for fami- 

ly, 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) 

  “and is not._shown by the model, as it is a 

centerpiece for many conclusions by peti- 

tioner’s experts. Qu_the basis of the 39- 

variable model McCleskey had an aggrava- 

tion score of .52. Woodworth estimated 

that at McCleskey’s level of aggravation 

the incremental probability of receiving the 

Qe Bomly in a white victim case is be- 

aR ag R 
Hi a particu- 

  

  

  

  

  

  

in coding McCleskey’s case, it would affect 

the point where his case fell on the aggra- 

vation index. R 1747. Judging from the 

‘testimony of Office Evans, McCleskey 

showed no remorse about the killing and, 

.to.the contrary, bragged about the killing 

“while in jail. While both of these are varia- 

bles available in the data base, neither is 

utilized in the model. If either were includ- 

ed it should have increased McCleskey’s 

index if either were coded correctly on 

McCleskey’s questionnaire. Both variables 

on McCleskey’s questionnaire were coded 

s “U,” and so even if the variables had 

been included, McCleskey’s aggravation in- 

dex 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, if that partic- 

ular factor had a coefficient as great as .15, 

the 39-variable or “mid-range” model would 

not have demonstrated any disparity in sen- 

tencing rates as a function of the race of 

the victim. 

Katz conducted an experiment aimed at he 

determining whether the uncertainty nT 

occurs in 1,601 cases. Therefore, the universe 

of cases is not coextensive. Others which are 

excluded are variables showing that the victim 

was forced to disrobe; that the victim was 

found without clothing; that the victim was 

mutilated; 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 de- 

fendant.  



376 

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 progres- 

sively increasing numbers of variables. 

His six-variable model had an r? of .26. 

His 31-variable model had an r? of .95.13 
Using these regression equations he com- 

puted the predictive outcome for each case 

using the aggravation index arrived at 

through his regression equations. As more 

variables were added, aggravation coeffi- 

cients in virtually every case moved sharp- 

ly toward 0 in life sentence cases and 

sharply toward 1 in death sentence cases. 

Respondent’s Exhibit 40. In the five re- 

gression models designed by Katz, McCles- 

key’s aggravation score, depending on the 

number of independent variables included, 

was .70, .75, 1.03, .87, and .85. 

Res.Exh. 40. 

* Based on the foregoing the court is not 

R 1734, 

convinced that the liberation hypothesis 

ts at work in the system under study. 

Further, the court is mot convinced that 

580 FEDERAL SUPPLEMENT 

was observed for race of the victim in rural 
decision-making units, but when logistic re- 

gression analysis was used, the effect be- 

came statistically insignificant. The race 

of the defendant effect in the rural area 

was not statistically significant. The deci- 

sions in McCleskey’s case were made by 

urban decision-makers. 

Finally, the court makes the following 

findings with reference to some of the oth- 

er models utilized by petitioner’s experts. 

As noted earlier some were developed 

through a procedure called stepwise re- 

gression. 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 cor- 

related, 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 
even if the hypothesis was at work in the “Sense conceptually. So, stepwise regres- 
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 compartmentalized 

decision-makers. R 964-69. An analysis 

was done to determine if the racial dispari- 

ties would persist if decisions made by ur- 

ban decision-makers were compared with 

decisions made by rural decision-makers.!* 

No statistically significant race of the vic- 

tim or race of the defendant effect was 

observed in urban decision-making units. 
A_.08 effect, significant at the .05 level, 

13. Katz testified that in most cases he randomly 
selected variables and in the case of the 31-vari- 
able model selected those variables arbitrarily 
which would most likely predict the outcome in 
McCleskey’s case. 

sion can present a very misleading picture 

through the presentation of models which 

have relatively high r? and have significant 

coefficients but which models do not really 
mean anything. R 1652. Because of this ) V3, 
the court cannot accord any weight to 

any evidence produced by the model cre- 

ated 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 Geor- 

gia, Woodworth’s diagnostics provide little Aaa 

if any corroboration to the findings produc- 

ed by such models. R 1252, et seq., GW 4, 
Table 1. 

14. Based on the court's knowledge of the State 
of Georgia, it appears that Baldus included 
many distinctly rural jurisdictions in the catego- 
ry of urban jurisdictions.  



m in rural 

ogistic re- 

effect be- 

The race 

ral area 

The deci- 

made by 

following 

f the oth- 

experts. 

Heveloped 

hwise re- 

sion does 

included 

variables 

htribution 

knows 

ariables 

whether 

l make a 

ghly cor- 

ly is to 

dropped 

ive point 

make no 

regres- 

F picture 

ls which 

nificant 

ot really 

b of this 

pight to 

bdel cre- 

of tests 

easures 

lid. As 

bdels he 

i on the 

ourt to 

n Geor- 

de little 

produc- 

GW 4, 

he State 

included 

Ee catego- 

McCLESKEY v. ZANT 377 
Cite as 580 F.Supp. 338 (1984) 

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 background vari- 

ables 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 Ap- 

pendix 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. 

10. The Fulton County Data. 

McCleskey was charged and sentenced in 

Fulton County, Georgia."® Recognizing 

that the impact of factors, both permissible 

and impermissible, do vary with the deci- 

sion-maker, and recognizing that some 

cases in this circuit have required that the 

statistical evidence focus on the decisions 

where the sentence was imposed, petition- 

er’s experts conducted a study of the effect 

of racial factors on charging and sentenc- 

ing in Fulton County. 

The statistical evidence on the impact of 

racial variables 1s inconclusive. II one con- 

trols for 40 or 50 background variables, 
multi i i ro- 

duce any statistically significant evidence 

of<either a race of the defendant or race of 

the victim disparity in Fulton County. R 

1000. Baldus used a stepwise regression 

analysis in an effort to determine racial 

disparities at different stages of the crimi- 

nal justice system in the county. The step- 

wise regression procedure selected 23 vari- 

  

  

  

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 At ,_of the 
Atlanta Judic ircuit to guide the exercise of 
a s————————— 

  

ables. Baldus made no judgment at all 

concerning the appropriateness of the vari- 

ables 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 

sfage where the prosecutor made the deci- 

  

  

  

  

sion to advance the case to a penalty trial. 
  

Overall, there was no statistically signifi- 

cant 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 

for these two variables were very modestly 
nggalive which would indicate a higher 
  

  

death sentencing rate in black-victim cases 
  

and in white-defendant cases. Neither of 

the coefficients, however, approach statisti- 

cal 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 Coun- 

ty, 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 vie- 

tims. 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 incon- 
clusive so far as the court can determine. 

The cohort study or near neighbor analysis 

also does not offer any support for Bal- 

dus’s opinion. Out of the universe of cases 

in Fulton County Baldus selected 32 cases 

that he felt were near neighbors to McCles- 

key. 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 McCles- 

key’s case. Baldus then divided these 32 

  

discretion in determining whether or not to 

seek a penalty trial. _Furiher, it was established 
that there was only one blackjuroromMcCles- 
key's jury. R 1316. 

  

  
  

   



378 

cases into three groups: More aggravated, 

equal to McCleskey, and less aggravated. 

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, ete. 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 pre- 

dictive 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 Thorn- 

ton’s case (black defendant/black victim) 

did not involve a police officer. Further, 

Thornton was very much under the influ- 

ence 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 de- 

fendant/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 for motor vehicle theft. Leach went to 

trial and went through a penalty trial. No- 

where 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 de- 

fendant/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 

580 FEDERAL SUPPLEMENT 

case (white defendant/white victim) did not 

involve a homicide committed to prevent an 

arrest and the victim was not a police offi- 

cer. Crouch’s prior record was not as se- 

vere as McCleskey’s and, unlike McCles- 

key, Crouch had a prior history of treat- 

ment by a mental health professional and 

had a prior history of habitual drug use. 

Further, and importantly, the evidence con- 

tained in the summary does not show that 

Crouch caused the death of the victim. 

Arnold is a case involving a black defend- 

ant 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 witness- 

es as he left the scene of the robbery, and 

he and his co-perpetrators committed an- 

other 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 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 con- 

sidered him to be the triggerman. 

In sum, it would seem to the court that 

Arnold and McCleskey’s treatments were 

proportional and that their cases were 

more aggravated and less mitigated than 

the other cases classified by Baldus as co- 

horts. This analysis does not show any 

effect based either upon race of the defend- 

ant or race of the victim. See generally R 

985-99, DB 110. 

Another type of cohort analysis 1s possi- 

ble using Fulton County data. There were 
17 defendants charged in connection with 

the killing of a police officer since Fui- 

man. 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 in- 

volved a black defendant killing a black 

officer; and one involved a white defendant 

killing a white officer. There were two 

penalty trials. MecCleskey’s involved a  



did not 

ent an 

e offi- 

as se- 

cCles- 

treat- 

hal and 

lg use. 
ce con- 

bw that 

victim. 

defend- 

ts are 

pt that 
but was 

avated 

ing the 

vitness- 

ry, and 

ted an- 

Arnold 

enry’s 

did not 

est or a 

was not 

om the 

bre was 

nt was 

te con- 

rt that 

ts were 

bs were 

ed than 

ls as co- 

jow any 

l defend- 

rally R 

is possi- 

re were 

ion with 

ce Fur- 

opinion 

leskey’s 
a black 
two in- 
2 Ta 

A) 

ere two 

olved a 

McCLESKEY v. ZANT 379 

Cite as 580 F.Supp. 338 (1984) 

black defendant killing a white officer; the 

other penalty trial involved a black defend- 

ant 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 opin- 

ion 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. ir i ERE 

D. Conclusions of Law 

Based upon the legal premises and au-'y 

thorities set out above the court makes 

these conclusions of law. 

{253 The petitioner's statistics do not 

demonstrate a prima facie case n_support 

of the contention _that the death penalty 

was imposed upon him because of his race, 

because of the race of the vietim, or be- 

cause of any Eighth Amendment concern. 

~Except for analyses conducted with the 

930-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 discriminatory treatment by 

the decision-makers who sought or imposed 

the death penalty and the Fulton County 

[data does not produce any statistically sig- 

nificant 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 substan- 

tially flawed, and the methodology utilized 

is incapable of showing the result of racial 

variables on cases similarly situated. Fur- 

ther, the methods employed are incapable 

of disclosing and do not disclose quantita- 

tively the effect, if any, that the two sus- 

pect racial variables have either state-wide, 

county-wide or in McCleskey’s case. Ac 

cordingly, a court would be incapable of 

discerning the degree of disparate treat 

ment if there were any. Finally, the larg: 

est models utilized are insufficiently pre- 

dichive to give adequate assurances that 

fhe 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 re- 

spondent has shown that the results are 

not the product of good statistical method- 

ology and, further, the respondent has re- 

butted 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 volun- 

tary manslaughter stages, are less aggra- 

vated 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 persisent 

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 varia- 

bles. These tables demonstrate nothing. 

When the 230-variable model is utilized, a 

race of the victim and race of the defend- 

ant effect is demonstrated. When all of 

the decisions made throughout the process 

are taken into account it is theorized but 

not demonstrated that the point in the sys- 

tem at which these impermissible consider- 

ations 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 un- 

fairness in plea bargaining with black de- 

fendants 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  



380 

death penalty and the decision to impose 

the death penalty, there is no statistically 

significant evidence produced by a reason- 

ably 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 demonstrating 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 

preponderates 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 circumstances. For this addi 

tional reason, the court finds that even 

accepting petitioner's data at face value, he 

has failed to demonstrate that racial con- 

siderations caused him to receive the death 

penalty. 

“For ‘these; "@#mong other, reasons the 

~ court denies the petition for a writ of habe- 

as corpus on this issue. 

III. CLAIM —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 v. United States, 

405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 

(1971) the Supreme Court stated: 

As long ago as Mooney v. Holohan, 

294 U.S. 103, 112 [55 S.Ct. 340, 341, 79 

L.Ed. 791] (1935), this Court made clear 

that deliberate deception of a court and 

jurors by the presentation of known false 

evidence is incompatible with “rudimen- 

tary demands of justice.” This was reaf- 

firmed in Pyle v. Kansas, 317 U.S. 213 

[63 S.Ct. 177, 87 L.Ed. 214] (1942). In 

Napue v. Illinois, 360 U.S. 264 [79 S.Ct. 

1173, 3 L.Ed.2d 1217] (1959), we said, 

“[t]he same result obtains when the 

State, although not soliciting false evi- 

dence, allows it to go uncorrected when 

it appears.” Id. at 269 [79 S.Ct. at 

HAY 

580 FEDERAL SUPPLEMENT 

1177). Thereafter Brady v. Maryland, 

373 U.S. [83], at 87 [83 S.Ct. at 1194, 10 

L.Ed.2d 215], held that suppression 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 Func- 

tion and the Defense Function § 3.11(a). 

When the “reliability of a given witness 

may well be determinative of guilt or 

innocence,” nondisclosure of evidence af- 

fecting credibility falls within this gener- 

al rule. 405 U.S. 150, 153-54, 92 S.Ct. 

763, 765-66, 31 L.Ed.2d 104. 

In_Giglio an Assistant United States Attor- 
ney had promised leniency to a co-conspira- 

tor 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 inform his superiors and 

associates was controlling. The prosecu- 

fion’s duty to present all material evidence 

to the jury was not fulfilled and thus con- 

stituted a violation of due process requiring 

a new trial. Id. at 150, 92 S.Ct. at 763. 

[26] It is clear from Giglio and subse- 
quent cases that the rule announced in 

Giglio applies not only to traditional degls 
made Dy the prosecutor in exchange for 

testimony but also to ay promises or 

understandings made by Gry) ymember of 
the prosecutorial team, w hich includes po- 

lice investigators. See United States v. 
Antone, 603 F.2d 566, 569 (5th Cir.1979) 

(Giglio analysis held to apply to under- 

standing between investigators of the Flor- 

ida Department of Criminal Law Enforce- 

ment and the witness in a federal prosecu- 

tion). The reason for giving Giglio such a 

broad reach is that the Giglio rule is de- 

signed 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 v. Cawley, 481 

F.2d 702 (5th Cir.1973), “[w]e réad Giglio 
- PE J a 

and th Laem 
i Bb  



aryland, 

1194, 10 

bssion of 

hew trial 

or bad 

American 

tandards 

bn Fune- 

E 3.11(a). 

witness 

guilt or 

dence af- 

is gener- 

92 S.Ct. 

es Attor- 

conspira- 

against 

ant U.S. 

trial was 

bncy and 

ess had 

1d not be 
eld that 
huthority 

iors and 

prosecu- 

evidence 

hus con- 

equiring 

. at 763. 

d subse- 

nced in 

al deals 

ange for 

ises or 

bmber of 

ludes po- 
tates wv. 

Cir.1979) 

0 under- 

the Flor- 

Enforce- 

prosecu- 

io such a 
le is de- 

prevent 

sO a rule 

of the 

h Cizamuit 
le; i 

hd Giglio 

McCLESKEY v. ZANT . + 381 
Cite as 580 F.Supp. 338 (1984) Bri! 

and [United States v.] Tashman and Gold- 

berg (sic) [478 F.2d 129 (5th Cir., 1973)] 

to mean simply that the jury must be ap- 

prised 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 v. Kemp, 715 F.2d 

1459, 1467 (11th Cir.1983) (quoting Unit- 

ed States v. Anderson, 574 F.2d 1347, 

1356 (5th Cir.1978)). 

In the present case the State introduced 

at petitioner’s trial highly damaging testi- 

mony by Offie Gene Evans, an inmate of 

Fulton County Jail, who had been placed in 

solitary confinement in a cell adjoining peti- 

tioner’s. Although it was revealed at trial 

that the witness “had been charged with 

escaping from a federal halfway house, the 

  
  

16. On direct examination the prosecutor asked: 

Q: Mr. Evans have I promised you anything 

for testifying today? : 
A: No, sir, you ain't. 

OQ: You do have an escape charge still pend- 

ing, is that correct? 

A: Yes, sir. I've got one, but really it ain't no 

escape, what the peoples out there tell me, 

because something went wrong out there so 1 

just went home. I stayed at home and when 1 

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 1 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. 

OQ: Have I told you I would try to fix it for 

you? 

A: Neo, sir. 

Trial Transcript at 868. 

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? 

witness denied that any deals or promises 

had been made concerning those charges in 

exchange for his testimony. _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 petition- 

er’s state habeas corpus hearing Evans tes- 

tified that one of the detectives investigat- 

ing the case had promised to speak to fed- 

eral authorities on his behalf.” It was 

further revealed that the escape charges 

pending against Evans were dropped sub- 

sequent to McCleskey’s trial. 

  

  

[27] After hearing the testimony, the 

habeas court concluded that the mere ex 

parte recommendation by the detective did 
  

mot trigger the applicability of Giglho. 
  

This, however, 1S __errox under United 

States v. Antone, 603 F.2d 566, 569 (5th 

Cir.1979) and cases cited therein. A prom- 

  

“ise, made prior to a witness's testimony, 
    

That the investigating detective will speak 
  

A: 1 wasnt worrying about the escape 

charge. 1 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 1 aint been before no Grand Jury or 

nothing like that, not yet. 
Trial Transcript at 882. 

17. At the habeas hearing the following tran- 

= spired: 

The Court: Mr. Evans, let me ask you a ques 

tion. At the time that you testified in Mr. 

McCleskey’s trial, had you been promised any- 

thing in exchange for your testimony? 

The Witness: No, I wasn't. I wasn't promised. 1't promises 

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, 

spcak a word for me. That was what the 

Detective told me. 

By Mr. Stroup: 

0: 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.  



382 580 FEDERAL SUPPLEMENT 

favorably to federal authorities concerning The reviewing court must focus on the 
pending federal charges fs within the sso impact on the jury. A new trial is neces- _of Giglio because it is the sort of promise sary when there is any reasonable likeli- "of Favorable treatment wher Lome hood that disclosure of the truth would EF WHNeSS 0 testify falsely on behalf of the have affected the judgment of the jury, Such a promise of favorable that is, when there is a reasonable likeli- “treatment could affect the credibility of the ~~ hood its ver dict might have been differ. 
witness in the eyes of the jury. As the ent. We must assess both the weight of court observed in United States », Bar- the independent evidence of guilt and the ham, 595 F.2d 231 (5th Cir.1979), cert. de- importance of the witness’ testimony, 
nied, 450 U.S, 1002, 101 S.Ct. 1711, 68 which credibility affects. Id. at 1356. L.Ed.2d 205, the defendant js “entitled to a In other cases the court has examined the 
jury that, before deciding which story to extent to which other impeaching evidence credit, was truthfully apprised of any possi- Was presented to the jury to determine ble interest of any Government witness in Whether or not the suppressed information testifying falsely.” Jd at 243 (emphasis in would have made a difference. E.g., Unit- original). 

ed States 1, Antone, 603 F.2d 566 (5th sigs . Cir.1979). A finding that the prosecution has given In the prosent cose the testimony of Ey- 
the witness an undisclosed promise of fa- . renin v ~ ans was damaging to petitioner in several 
yorable treatment does Rot necessarily “respects. (First, he alone of all the witness- 
warrant a new trial, however. * As the : - y . rr es for the prosecution testified that _ 
Court Ohsery ed.in. Gig lio: McCleskey had been wearing makeup on I Cua 

We do not, however, automatically re- the day of the robbery. Such testimony aleuy quire a new trial Whenever “a combing obviously helped the jury resolve the con- 
of the prosecutors’ files after the trial tradictions between the descriptions given 
has disclosed evidence possibly useful to by witnesses after the crime and their in- the defense but not likely to have court identifications of Petitioner. (Secong, 
changed the verdict... United States Evans was the only Witness, other tha the Pi / 
v. Keogh, 391 F.2d 138, 148 (C.A. 2 1968). codefendant, Ben Wright, to testify that 
A finding of materiality of the evidence McCleskey had admitted to shooting Offi! is required under Brady, supra, at 87. cer Schlatt. No murda: weapon was ever 

"A new trial is required if “the false testi. recovered. No one saw the shooting. 7 mony could ... in any reasonable likeli- Aside from the damaging testimony of 
| hood have affected the judgment of the Wright and Evans that McCleskey had ad- 
Njury 7 08 US ut 154, 92 S.Ct. at mitted the shooting, the evidence that 766. 

McCleskey was the triggerman was entire-~ In United States v. Anderson, 574 Foq ly cIrcumstantial. Finally) Evans’ testimo- ’ 1347 (5th Cir.1978), the court elaborateq fy Was Tar the most damaging testimo- (Ma; eo 
upon the standard of review to be applied 1Y on the Issue of malice. in cases involving suppression of evidence [28] In reviewing all of the evidence 
impeaching a prosecution witness: © Presented at trial, this court cannot con- 

  

  

Zs {nf €8%. 

18. In his closing argument to the Jury the prose- himself like he said he tried to do under one 
cutor developed the malice argument: of the couches and just hid there. He could 

He (McCleskey) COURIMTAVE gotten out of that . have done that and Jet them find him, here | 
back door Just like the other three did, but he am, peekaboo. 

[i 
chose not to do that, he chose to go the other He deliberately killed that officer on purpose. \ 
way, and just like Offie Evans says, it doesn't I can guess what his purpose was, I am sure \ 
make any difference if there had been a dozen you can guess what it was, too. He is going to, | 
policemen come in there, he was going to be a big man and kil] a police officer and ge J 
shoot his way out. He didn’t have to do that, away with it. That is malice. 
he could have run out the side entrance, he Trial Transcript at 974-75. could have given up, he could have concealed  



us on the 
| is neces- 
able likeli- 

th would 

the jury, 

hble likeli- 

ben differ- 

weight of 

It and the 

estimony, 

at 1356. 

mined the 
F evidence 
determine 

formation 

.g., Unit- 

566 (5th 

ny of Ev- 

n several 

e witness- 

ied that 

akeup on 

estimony 

b the con- 

bns given 

| their in- 

Second, 

than the 

tify that 

ting Offi- 

was ever 

shooting. 

mony of 

ly had ad- 

nce that 

as entire- 

" testimo- 

bh testimo- 

evidence 

not con- 

under one 

He could 

im, here 1 

n purpose. 
I am sure 
is going to 
er and get 

McCLESKEY v. ZANT 383 
Cite as 580 F.Supp. 338 (1984) 

clude that had the jury known of the prom- 
ise made by Detective Dorsey to Offie Ev- 
ans, that there is any reasonable likelihood 
that the jury would have reached a differ- 
ent verdict on the charges of armed rob- 
bery. Evans's testimony was merely 
“Cumulative of substantial other testimony 
that McCleskey was present_at the Dixie 
Furniture Store robbery. /However, given 

freamstantial nature of the evidence 

that McCleskey was the triggerman who 
killed Officer Schlatt and the damaging 
nature of Evans’s testimony as to this is: 

e and the issue of malice, the court foes 
dy that the jury may reasonably have 

reached a different verdict on the charge of 
malice murder had the promise of f 

abe treatment been disclosed. 

  

  

  

  

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 delibera- 
tion, the jury asked the court for further 

    

  

inaction on the definition of malice. 

Given the highly damaging nature of Lv- 
ans’s testimony on the issue of malice, 
there is a reasonable likelihood that disclo- 
sure of the promise of favorable treatment 
to Evans would have affected the judgment   
of the jury on this issue.’ 

As the Fifth Circuit observed in United 

States v. Barham, 595 F.2d 231 (5th Cir.) 

cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 

68 L.Ed.2d 205 (1981), another case involv- 
ing circumstantial evidence bolstered by 

the testimony of a witness to whom an 
undisclosed promise of favorable treatment 

had been given: 

There is no doubt that the evidence In 
this case was sufficient to support a ver- 

  

19. Although petitioner has not made this argu- 
ment, the cour OlCS 1n passing that Evans’ 

{€hmony at trial regarding the circumstances 

of “his escape varies markedly from the facts 
appearing in the records of federal prison au- 
thorities. For example, the records show that 
Evans had been using cocaine and opium imme- 
diately prior to and during his absence from the 
halfway house. Petitioner's Exhibit D, filed 
June 25, 1982. ASG prison records show that 

updTbeing captured Evans told authorities he 
had been in Florida working undercover in a 
drug investigation. Petitioner's Exhibit E, filed 

  

  

  

dict of guilty. But the fact that we 
would sustain a conviction untainted by 
the false evidence is not the question. 
After all, we are not the body which, 
under the Constitution, is given the re- 
sponsibility of deciding guilt or inno- 
cence. 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 im- 
pression of material evidence when it de- 

cides the question of guilt or innocence 

with all its ramifications. 

We reiterate that credibility was especial- 
ly important in this case in which two 
sets of witnesses—all alleged partici- 
pants in one or more stages of a criminal 

enterprise—presented irreconcilable sto- 
ries. 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 be- 

lieve that those three witnesses might 
have fabricated testimony in order to 
avoid prosecution themselves or minimize 
the adverse consequences of prosecu- 
tion.... And the subsequent failure of 

the Government to correct the false im- 
pression given by Shaver and the Beech- 
es shielded from jury consideration 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 cred- 

ibility weighed so heavily in the balance, 
we cannot conclude that the jury, had it 
been given a specific reason to discredit 

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 fo go uncorrected, and the j 

TTatcriainy se—impression of his 
crttbTy——thmder— These circumstances the 
good faith or bad faith of the prosecution is 
irrelevant. Brady v. Maryland, 373 U.S. 83, 87, 

83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Na- 
pue v. llinots, 360 US. 264; 79: 8SCi.- 1173.3 

L.Ed.2d 1217 (1959).  



384 

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 rea- 
sonable doubt. Id. at 242-43 (emphasis 
in original). 

Because disclosure of the promise of fa- 
vorable treatment and correction of the 
other falsehoods in Evans’ testimony could 
reasonably have affected the jury’s verdict 
on the charge of malice murder, petition- 
er’s conviction and sentence on that charge 
are unconstitutional.?® 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 

20. Nothing the court says in this part of the 
opinion is meant to imply that petitioner's con- 
finement 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 inno- 

cence in his behalf, and that presumption 

remains with him throughout the trial of the 
case unless and until the State introduces evi- 
dence proving the defendant's guilt of one or 
more or all of the charges beyond a reasona- 
ble 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 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 prosecu- 
tion. 

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 
  

  

580 FEDERAL SUPPLEMENT 

process because they unconstitutionally re- 

‘lieved the prosecution of its burden of prov- 

ing beyond a reasonable doubt each and 

every essential element of the crimes for 

which defendant was convicted. Specifical- 

ly, 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 discretion is presumed to intend the 

natural and probable consequences of his 

acts, but both of these presumptions may 

be rebutted.?! Trial Transcript at 996. 

[29,30] It is now well established that 

the due process clause “protects the ac- 

cused against conviction except upon proof 

presumed to be the product of the person's 

will, and a person of sound mind and discre- 

tion 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 inten- 
tion, but the second code section says that the 
trier of facts may find such intention upon 
consideration of the words, conduct, demean- 
or, motive and all other circumstances con- 
nected 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 defend- 
ant, 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 afore- 

thought, either express or implied, causes the 
death of another human being. Express mal- 
ice is that deliberate intention to take away 
the life of a fellow creature which is manifest- 
ed by external circumstances capable of 
proof. Malice shall be implied when no con- 
siderable 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.  



jonally re- 

bn of prov- 

each and 

rimes for 

Specifical- 

ion of the 

ht the acts 

discretion 

ct of the 

bund mind 

intend the 

168% of his 
btions may 

ht at 996. 

ished that 

s the ac- 

pon proof 

he person's 

and discre- 

atural and 

but both of 

ted. 

person will 
inal inten- 

ays that the 

ntion upon 

ct, demean- 

[tances con- 

accused is 

I have read 

In this case, 

he trier of ° 

the jury, to 
solely from 
there was a 

the defend- 

cumstances 

deductions 

from those 

bunt One of - 

will charge 
der. 

its murder 

halice afore- 

, causes the 

Express mal- 

b take away 
is manifest- 

capable of 

hen no con- 
d where all 

g show an 

gy gen en. 

McCLESKEY v. ZANT 385 
Cite as 580 F.Supp. 338 (1984) 

beyond a reasonable doubt of every fact 

necessary to constitute the crime with 

which he is charged.” In Re Winship, 397 

US. 858, 364, 90 S.Ct. 1068, 1073, 25 

LEd2d 868 (1970). Jury instructions 

which relieve the prosecution of this bur: 

den or which shift to the accused the bur- 

den of persuasion on one or more elements 

of the crime are unconstitutional. Sand- 

strom v. Montana, 442 U.S. 510, 99 S.Ct. 

2450, 61 L.Ed.2d 39 (1979); Mullaney v. 

Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 

L.Ed.2d 508 (1975). 

[311 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 unconstitu- 

tionally shifted the burden of proof on any 

essential element of the crime. See Lamb 

v. Jernigan, 683 F.2d 1332, 1335-36 (11th 

Cir.1982), cert. denied, — U.S. —, 103 

S.Ct. 1276, 75 L.Ed.2d 496 (1983). If the 

reviewing court determines that a reasona- 

I charge you that legal malice is not neces 

sarily ill-will or hatred. It is the intention to 

unlawfully kill a human being without justifi- 

cation or mitigation, which intention, how- 

ever, must exist at the time of the killing as 

alleged, but it is not necessary for that inten- 

tion 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 with- 

out 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 Sand- 

strom the question of whether a burden-shifting 

jury instruction could ever be considered harm- 

less. 442 U.S. at 526-27, 99 S.Ct. at 2460-61. 

The courts of this circuit have held that where 

the Sandstrom error is harmless beyond a rea- 

sonable doubt a reversal of the conviction is not 

warranted. See, e.g., Lamb v. Jernigan, 683 F.2d 

Cena; 1332y 1342-43 (11th Cir.1982). In Connecticut 

-"v. Johnson, — US. —, 103 S.Ct. 969, 74 

L.Ed.2d 823 (1983), the Supreme Court granted 

certiorari to resolve the question of whether a 

Sandstrom error could ever be considered 

harmless. Four Justices specifically held that 

the test of harmlessness employed by this cir- 

cuit—whether the evidence of guilt was so over- 

whelming that the erroneous instruction could 

not have contributed to the jury's verdict—was 

ble juror would have understood the in- 

struction either to relieve the prosecution 

of its burden of proof on an essential ele- 

ment 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 v. Jernigan, supra, Mason v. Balk- 

com, 669 F.2d 222 (5th Cir. Unit B 1982), 

cert. denied, — U.S. , 103 S.Ct. 1260, 

75 L.Ed.2d 487 (1983).22 

[32-34] 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 immedi- 

“ate presence of a person, (2) by use of an 

offensive weapon, (8) with intent to commit 

theft.2? The offense of murder also con- 

tains three essential elements: (1) A homi- 

cide; (2) malice aforethought; and (3) un- 

lawfulness.2 See Lamb v. Jernigan, Su- 

inappropriate. Id. 103 S.Ct. at 977. However, 

an equal number of justices dissented from this 

holding. Id. at 979 (Powell, J, joined by Burg- 

er, C.J., Rehnquist and O'Connor, J.J., dissent- 

ing). The tie-breaking vote was cast by Justice 

Stevens who concurred in the judgment on jur- 

isdictional grounds. Id. at 978 (Stevens, J., con- 

curring in the judgment). 

Because a majority of the Supreme Court had 

not declared the harmless error standard em- 

ployed in this circuit to be erroneous, the Elev- 

enth Circuit has continued to hold that Sand- 

strom errors may be analyzed for harmlessness. 

See Spencer v. Zant, 715 F.2d 1562 (11th Cir. 

1983). 

23. Georgia Code Ann. § 26-1902 (now codified 

at O.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 afore- 

thought, 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  



386 

pra; Holloway v. McElroy, 632 F.2d 605, 

628 (5th Cir.1980), cert. denied, 451 U.S. 

1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). 

The malice element, which distinguishes 
murder from_the lesser offense of volun- 

tary manslaughter, means simply the in- 

tent to kill in the absence of provocation. 

In Lamb v. Jernigan the court concluded 

that “malice, including both the intent com- 

ponent and the lack of provocation or justi- 

fication, is an essential element of murder 

under Ga.Code Ann. § 26-1101(a) that Mul- 

laney 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. is 

In analyzing the jury instructions chal- 

lenged 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 oppo- 

site results on virtually identical language. 

In Sandstrom the Supreme Court invalida- 

ted a charge which stated that “[t]he law 

presumes that a person intends the ordi 

nary consequences of his acts,” 442 U.S. at 

513, 99 S.Ct. at 2453. The Court held that 

the jury could have construed this instruc- 

tion as either creating a conclusive pre- 

sumption 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 in- 

struction in Sandstrom, the instruction at 

issue in the present case stated that “the 

acts of a person of sound mind and discre- 

tion are presumed to be the product of the 

creature which is manifested by external cir- 
cumstances capable of proof. Malice shall be 
implied where no considerable provocation 
appears and where all the circumstances of 
the killing show an abandoned and malignant 
heart. 

25. In Franklin the trial court charged the jury 
that: 

580 FEDERAL SUPPLEMENT 

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.” This presumption would ap- 

pear 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 instruction directs 

the jury to presume intent unless the de- 

._.fendant rebuts it. This would appear to be 

the sort of burden-shifting instruction con- 
demned by Sandstrom. This conclusion is 

supported by Franklin v. Francis, 120 

F.2d 1206 (11th Cir.1983) which held that 

language virtually identical to that involved 

in the present case * violated Sandstrom. 

In that case the court declared: 

This is a mandatory rebuttable presump- 

tion, 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 v. Francis, 723 F.2d 

1504 (11th Cir.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. 

The court in Tucker relied upon the fact 

[tlhe 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 discre- 
tion is presumed to intend the natural and 
probable consequences of his acts, but the 
presumption may be rebutted. 

Franklin v. Francis, 720 F.2d at 1210.  



    

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Cite as 580 F.Supp. 403 (1984) 

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Gloria PADILLA, Plaintiff, 

; V. 

" Luis M. d’AVIS and City of 

Chicago, Defendants. 

Anita JONES, Plaintiff, 

Vv. 

Luis M. d’AVIS and City of 

Chicago, Defendants. 

Nos. 83 C 6390, 82 C 2943. 

United States District Court, 

N.D. Illinois, E.D. 

Feb. 1, 1984. 

* a. 

Patients brought action against city 

and physician arising out of sexual assaults 

by physician during course of his gyneco- 

logical examinations of patients at city 

health facility. On a motion to reconsider 

previous dismissal of one complaint, and 

defendants’ motions to dismiss, the District 

Court, Shadur, J., held that: (1) patients 

stated section 1983 cause of action against 

city; (2) physician was not engaged in 

“state action” and therefore patients failed 

to state a cause of action under section 

1983 against him; and (3) patients failed to 

state a cause of action under state law 

against city. 

Ordered accordingly. 

1. Federal Civil Procedure ¢=1829, 1835 

On motion to dismiss, all factual alle- 

- ‘gations in complaint are taken as true and 
all reasonable and factual inferences are 

drawn in favor of plaintiff. 

2. Civil Rights ¢=13.17(7) 

A city has no punitive damages liabili- 

ty under section 1983. 42 U.S.C.A. § 1983. 

3. Civil Rights ¢=13.7 

Absent some formally promulgated 

standard of conduct, such as an ordinance 

or administrative regulation, a section 1983 

cause of action against a municipality must 

be grounded on some direct municipal act 

or omission or some municipal policy, cus- 

tom or practice that in either event proxi- 

  

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McCLESKEY v. ZANT | 387 

Cite as 580 F.Supp. 338 (1984) 

charge to the jury, created only a permis- 

sive inference that the jury could find in- 

tent based upon all the facts and circum- 

stances of the case and thus did not violate 

Sandstrom. Tucker v. Francis, supra. 

that the trial judge instructed the jury in 

other parts of his charge that criminal in- 

tent 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 eriminal 

intention, but the trier of fact, that is you 

the jury, may find such intention upon con- 

sideration of the words, conduct, demeanor, 

motive and all other circumstances connect- 

ed with the act for which the accused is 

prosecuted.” Tucker, supra, at 15617. Ex- 

amining the objectionable language in the 

context of the entire instruction under 

Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 

396, 38 L.Ed.2d 368 (1973), the court con- 

cluded that the instruction would not un- 

constitutionally mislead the jury as to the 

prosecution’s burden of proof. Tucker, su- 

pra, at 1517. The problem with this rea- 

soning is that the exact same instructions 

were contained in the charge given to the 

jury in Franklin v. Francis. See Frank- 

lin v. Francis, 720 F.2d at 1208 n. 2. This 

court can find no principled way of distin- 

guishing 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. 

[35] 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 v. Francis, which 

is the latest 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 

26. The relevant portion of the prosecutor's argu- 

ment 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 1 don’t 

know what you are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse be- 

ing exhibited during this trial by Mr. McCles- 

key? Have you observed any remorse exhibit- 

ed while he was testifying? 

[36] Having held that the instruction 

was not unconstitutional under Sand- 

strom, 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 testimo- 

ny 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 if erroneous, con- 

tributed to the jury's decision to convict 

petitioner of malice murder and armed rob- 

bery. Petitioner's Sandstrom claim 1s, 

therefore, without merit. 

  

  

    

  

  

  

V. CLAIM «1,"—PROSECUTORIAL 

MISCONDUCT AT THE SENTENC- 

ING PHASE. 

[37] 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.*® References to 

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 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? 

1 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  



388 

the appellate process are not per se uncon- 

stitutional unless on the record as a whole 
it can be said that it rendered the entire 
trial fundamentally unfair. McCorquodale 
v. Balkcom, 705 F.2d 1553, 1556 (11th Cir. 

1983); Corn v. Zant, 708 F.2d 549, 557 
(11th Cir.1983). 

[38] 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 petitioner's prior 
‘erimifial 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 
deliberations on petitioner’s sentence. In- 

sofar as petitioner claims that the prosecu- 
tor’s arguments were impermissible be- 

got three convictions. I believe if you look at 
those papers carefully you are going to find, 1 
think, on one of those he got three life sen- 
tences to begin with, and then there is a cover 

sheet where apparently that was reduced to 
what, eighteen years or fifteen years or some- 
thing, which means of course, he went through 
the appellate process and somehow got it re- 
duced. 
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 profes- 
sion and he gets in safely, takes care of the 
victims, although he may threaten them, and 
gets out safely, that is what he considers do- 
ing 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 con- 
sider that his responsibility, so consider that. 
The life that he has set for himself, the di- 
rection he has set his sails, and thinking down 
the road, are we going to have to have anoth- 
er 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 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 

580 FEDERAL SUPPLEMENT 

cause they had such an effect, the claim is 

without merit.? 

VI. CLAIM “B”—TRIAL COURTS 

REFUSAL TO PROVIDE PETI- 

TIONER WITH FUNDS TO RE- 

TAIN HIS OWN EXPERT WIT- 

NESS. 

Petitioner contends that the trial court’s 

refusal to grant funds for the employment : 

of a ballistics expert to impeach the testi- 

mony of Kelley Fite, the State’s ballistics 

expert, denied him due process. This claim 

is clearly without merit for the reasons 

provided in Moore v. Zant, 722 F.2d 640 

(11th Cir.1983). 

[39,40] Under Georgia law the appoint- 

ment of an expert in a case such as this 

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. 1 
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 v. Francis, 723 F.2d 1504 (11th Cir.1984); 

Brooks v. Francis, 716 F.2d 780 (11th Cir.1983); 

Hance v. Zant, 696 F.2d 940 (11th 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.  



RE- 

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me 

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ounsel. 

McCLESKEY v. ZANT 
389 

Cite as 580 F.Supp. 338 (1984) 

ordinarily lies within the discretion of the 

trial court. See Whitaker v. 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 earli- 

{ er robbery and which matched the descrip- 

| tion of the gun several witnesses testified 

| the petitioner was carrying on the day of 

¥ the robbery at the Dixie Furniture Compa- 

ny. Y Petitioner had ample opportunity to 

examine the evidence prior to trial and to 

subject the expert to a thorough cross-ex- 

amination. Nothing in the record indicates 

that the expert was biased or competent. 

This court cannot conclude therefore that 

the trial court abused its discretion in deny- 

ing petitioner funds for an additional ballis- 

ties expert. 

VII. CLAIM «p’—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 robber- 

ies for which he had not been indicted was 

overly broad and diminished the reliability 

of the jury's—guiit determination. 

[41,42] During the trial the prosecution 

introduced evidence that petitioner had par- 

ticipated in armed robberies of the Red Dot 

Grocery Store and the Red Dot Fruit 

Stand. At that time the trial judge cau- 

tioned the jury that the evidence was ad- 

mitted for the limited purpose of “aiding In 

the 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.” The evidence tended to establish 

28. The relevant portion of the trial judge's in- 

structions to the jury were as follows: 

Now, ladies and gentlemen, there was cer- 

tain evidence that was introduced here, and I 

told you it was introduced for a limited pur- 

pose, and I will repeat the cautionary charge 1 

gave you at that time. 

that petitioner had participated in earlier 

armed robberies employing the same mo- 

dus operandi and that in one of these rob- 

beries he had stolen what was alleged to 

have been the weapon that killed Officer 

Schlatt. Such evidence is admissible under 

Georgia law. See Hamilton v. State, 239 

Ga. 72, 235 Sg. E.2d 515 (1977). Petitioner 

objects that the trial court's instructions 

regarding the use of this evidence were 

overbroad because “(a) the prosecution it- 

self had offered the evidence of other 

transactions for the purpose of showing 

the identity of the accused father than to 

Show Intent or state of mind, and (b) it is 

irrational to instruct that evidence of an 

accused's participation in another transac 

tion where a murder did not occur is proba- 

tive of the accused’s intent to commit mal- 

ice murder.” Petitioner's Memorandum of 

Law in Support of Issuance of the Writ at 

10-11. Both of these contentions are with- 

out merit. First, the court sees nothing in 

the courts instructions to. support petition- 

that the jury was-allowed to 

| der from 

Petition- 

er w 
and 

murder. 

cery Store robbery 

purpose of showing that petitioner had-sto- 

len 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 

Trait Stand robbery was admitted for im- 

peachment purposes only after the petition- 

er 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 ©. Texas, 385 U.S. 554, 

560-61, 87 S.Ct. 648, 651-52, 17 L.Ed.2d 

606 (1967). 

I told you that in the prosecution of a particu- 

lar crime, evidence which in any manner 

tends to show that the accused has committed 

another transaction, wholly distinct, indepen- 

dent and separate from that for which he is 

on trial, even though it may show a transac- 

tion of the same nature, with similar methods  



580 FEDERAL SUPPLEMENT 

VIII. CLAIM “E”—EVIDENCE OF 
NON-STATUTORY AGGRA- 
VATING CIRCUMSTANCES 
PRESENTED AT PENALTY 
STAGE OF PETITIONER'S TRI- 
AL. 

[43] Petitioner contends that the trial 
court erred by giving the jury complete, 
unlimited discretion to use any of the evi- 
dence presented at the trial during its delib- 
erations regarding imposition of the death 
penalty. Petitioner's claim is without mer- 

ing whether or not the death penalty 
should be imposed, +s. 

Georgia's capital sentencing procedure 
has been declared constitutional by the Su- 
preme Court in Gregg v. Georgia, 428 U.S. 
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). 
Just recently the Supreme Court examined 
an argument similar to the one petitioner 
makes here in Zant v. Stephens, — U.S. 
—, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). 
In that case the Court dealt with the argu- 
ment that allowing the jury to consider any it. The trial judge specifically instructed «aggravating circumstances once a statuto- 

the jury that it could not impose the death Ty” aggravating circumstance had been penalty unless it found at least one statuto- 
ry aggravating circumstance. He also 
instructed the jury that if it found one or 
more statutory aggravating circumstances 
it could also consider any other mitigating 
or aggravating circumstances in Sori 

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 in- 
volved in such similar transaction or transac- 
tions is a matter for you to determine. Fur- 
thermore, 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 de- 
fendant 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 transaction or . 

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 consti- 

Now, if you find one or both of these aggra- 
vating circumstances existed beyond a rea- 
soanble doubt, upon consideration of the of- 
fense of murder, then you would be authoriz- 
ed 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 aggravating 
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, vou are authorized 
to consider all of the evidence received here 

  

  

  transactions, if any, tend to illustrate the state Sout, SIN GRUIL presented by the State and the defen of mind or intent of the defendant or aids in 
identification, that is a matter for you to de- 
termine. 

Transcript at 992-93, 

29. The relevant portion of the judge's sentencing 
charge is printed below. The challenged por- 
tion is underlined. 

I charge you that in arriving at your deter- 
mination you must first determine whether at 
the time the crime was committed either of 
the following aggravating circumstances 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 offi- 
cer, corrections employee or fireman while 
engaged in the performance of his official 
duties. 

DE 

  **" dame throughout the trial before vou. 
You should consider the facts and circum- 

stances in mitigation. Mitigating circum- 
stances are those which do not constitute a 
Justification or excuse for the offense in ques- 
tion, but which in fairness and mercy may be 
considered as extenuating or reducing the de- 
gree 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.  



  

penalty 

brocedure 

y the Su- 

428 U.S. 

b9 (1976). 
examined 

    
betitioner 

— U.S. 

B5 (1983). 

he argu- 

sider any 
statuto- 

ad been 

iscretion 

b impose 

class of 

  

   

    
      
    

    

   

  

    

   
   

itatutory 

a consti- 

ese aggra- 

d a rea- 

of the of- 

authoriz. 

of death 

    

casonable 

gravating 

ce to the 

d not be 

of death, 

ed would 

d by law. 
of which 

thorized 

ved here 

he defen- 

        
   

  

       
   

  

   

  

    
    

  

circum- 

circum- 

hstitute a 

in ques- 

’ may be 
g the de- 

    

    

    
   

    

   

  

| impose 

find one 

k exist or 

he death 

Statutory 

ibmitted 

" both of 

n you to 

   

  

      

McCLESKEY v. ZANT 391 
Cite as 580 F.Supp. 338 (1984) 

tutionally necessary function at the 

stage of legislative definition: They cir- 

cumscribe the class of persons eligible 

for the death penalty. But the Constitu- 

tion 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 impor- 

tant at the selection stage is an individ-- 

ualized determination on the basis of the 

character of the individual and the cir- 

cumstances of the crime. Zant v. Ste- 

phens, — U.S. ——, 103 S.Ct. at 2743- 

44 [77 L.Ed.2d 235] (emphasis in origi 

nal). 

The court specifically approved in Zant v. 

Stephens consideration by the jury of non- 

statutory aggravating circumstances, pro- 

vided that such evidence is not “constitu- 

tionally impermissible or totally irrelevant 

to the sentencing process, such as for ex- 

ample the race, religion or political affilia- 

foi tion of “the defendant.” Id. 103 S.Ct. at 

27417. a 

The sentencing jury in this case found 

two statutory aggravating 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 performance of his official 

duties. ‘The trial judge could therefore 

properly admit any ‘additional evidence in 

extenuation, mitigation, and aggravation of 

punishment, including the record of any 

prior conviction,” ... provided that the evi- 

dence bore on ‘defendant’s prior record, or 

circumstances of his offense,” Moore v. 

Zant, 722 F.2d 640 at 644 (11th Cir.1983) 

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? 

(quoting Lockett v. Ohio, 438 U.S. 586, 604 

n. 12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 
973 (1978)). For the reasons stated in Zant 

v. Stephens, supra, and Moore v. Zant, 
supra, petitioner's claim is without merit. 

IX. CLAIM “F’—WHETHER THE 
ADMISSION AT PETITIONER'S 
TRIAL OF EVIDENCE CON- 
CERNING PRIOR CRIMES AND 
CONVICTIONS VIOLATED PETI- 
TIONER’S DUE PROCESS 
RIGHTS. 

Petitioner contends that the admission of 

evidence concerning two prior armed rob- 

berfes Tor whichte 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 petition- 

er participated in prior armed robberies 

was properly admitted to show petitioner’s 

scheme, motive, intent or design and that 

the trial judge’s instructions properly limit, | 

  

  

ed the use of this evidence. See” “also 

McClesky v. State, 245 Ga. 108, 114, 263 | 
S.E.2d 146 (1980). The evidence to_which 

petitioner objects most strongly in Claim 
El Ls armed rob- 
beries for which petitioner had been con- 
Victed., When petitioner took the stand in 
his own defense, he admitted on direct ex- 

amination that he had previously been con- 

victed 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 petition- 

er a number of questions concerning the 

  

  

  

details of those robberies?’ Petitioner con-= = 
tends that this questioning concerning the 

A: 1 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 sen- 
tence. 

Q: So you are guilty for the Douglas County 
armed robberies and the Cobb County rob- 
bery, but not the Fulton County robbery? 
A: I pleaded guilty to it. 
Q: To the Fulton County? 

A: Sure. 

    

» 

  



392 580 FEDERAL SUPPLEMENT 

details of crimes to which petitioner had 

admitted guilt exceeded the bounds of what 
was 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 evi- 

dence was properly admitted under the 
Georgia Rules of Evidence. Petitioner 

asks this court now to declare the Georgia 

rule allowing the admissibility of this evi- 

dence to be violative of the due process 

clause of the Fourteenth Amendment. 

Q: But are you guilty of that robbery? 
A: I wasn't guilty of it, but I pleaded guilty to 
it 

But you were guilty in all of the robberies 
in Cobb County and Douglas County, is that 
correct? 
A: 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: Yes, sir. 
A: 1 know it was a loan company. 
Q: Kennesaw Finance Company on Broad 

Street, is that about correct? 
A: That sounds familiar. 
Q: And did you go into that place of business 
at approximately closing time? 
A: TI would say yes. 
Q: Did you tie the manager and the—the 
Hanagers 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. 

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, 1 
believe. 
Q: And do you remember what time of day 
that robbery took place? 
A: If I am not mistaken, I think it was on the 
23rd day of July. 
Q: 1970? 

A: Right. 
Q: About 4:30 p.m.? 

R
A
C
E
 

A
E
 

AE
 
A
E
 

Did they threaten to kill Hose Siig fi 

In Beck v. Alabama, 447 U.S. 625, 100 

S.Ct. 2382, 65 L.Ed.2d 392 (1980), the  Su- i 

preme Court stated: 

To insure that the death penalty is indeed 

imposed on the basis of ‘reason rather 

than caprice of emotion,” we have invali- 

dated procedural rules that tended to di- 

minish the reliability of the sentencing 

determination. The same reasoning 

must apply to rules that diminish the 

reliability of the guilt determination. Id. 

at 638, 100 S.Ct. at 2390. 

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 automo- 
bile parked around the corner? 
A: 1 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? 
A: - 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 unfortunately he didn't make 
it. 
Q: You also have been convicted out in De- 
Kalb 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 De- 
Kalb County? 
A: Robbery charge. 
Q: Armed robbery? 
Ar: Yes, sir, 

Q: And where was that at, sir? 
A: 1 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? 
A: No, sir, I wasn't guilty of it. Like I said, I 

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 1 have already got a large sentence any- 
way. 
Q: I believe the DeKalb County case was out 
at the Dixie Finance Company out in Litho- 

nia, is that correct? 

A: 1 don't really recollect. 1 do remember 
the charge coming out, but I don't recall ex- 
actly what place it was. 

Transcript 845-849.  



    
    

    

   
   

  

   
   

625, 100 

), the Su- 

is indeed 

on rather 

hve invali- 

ded to di- 

entencing 

reasoning 

inish the 

htion. 1d. 

    
   

   
   

   

    

   

  

ore on the 

-handed, 1 

An automo- 

enry? 

e robbery? 

ked around 
2 
ly where it 
right there 
street from 
pick us up 
idn't make 

out in De- 

ere. All of 

out in De- 

ber exactly 
b have took 
guilty plea 

   

   ike I said, I 

y trying to 

ny need to 

win them 

tence any- 

  

   

    

   
   
   hse was out 

t in Litho-    

      

     

remember 
1 req 

    

   

McCLESKEY v. ZANT 393 
Cite as 580 F.Supp. 338 (1984) 

In Beck the Supreme Court struck down an 

Alabama statute which prohibited a trial 

judge from instructing the jury in a murder 

case that it could find the defendant guilty 

of a lesser-included offense. The Court 

ruled that this statute distorted the fact- 

finding function of the jury. “In the final 

analysis the difficulty with the Alabama 

statute is that it interjects irrelevant con- 

siderations into the factfinding process, di- 

verting the jury’s attention from the cen- 

tral 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, 100 S.Ct. at 

2392. 

In Green v. Georgia, 442 U.S. 95, 99 

S.Ct. 2150, 60 L.Ed.2d 738 (1979) the Su- 

preme 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 tes- 

timony comes within Georgia's hearsay 

rule, under the facts of this case its 

exclusion constituted a violation of the 

Due Process Clause of the Fourteenth 

Amendment. Id. at 96, 99 S.Ct. at 2151. 

[44] It seems clear from these cases 

that a state procedural or evidentiary rule 

which might substantially diminish the reli- 

ability of the factfinding function of the 

jUFy ira capital case would violate the due 

process clause of the Fourteenth Amend- 

ment. The question, then, is whether or 

not the admissibility of the details of other 

crimes can be said to have had the effect of 

diminishing “the reliability of the guilt de- 

termination.” Petitioner has ci 1 

cases from this and other circuits which 

have held that the admission in a federal 
prosecution of Ustalls.af poy oes to 

which the defendant had fitted guilt 

was unfairly prejudicial and constituted re- 

versible error. See, e.g., United States v. 

Tumblin, 551 F.2d 1001 (5th Cir.1977); 

United States v. Harding, 525 F.2d 84 (7th 

Cir.1975) (“The rule that it is error to in- 

quire about the details of prior criminal 

conduct is so well established that such 

580 F.Supp.—11 

  

  

  

  

error is cognizable despite the absence of 

any objection by defense counsel”). The 

point petitioner has overlooked is that pros- 

ecutions 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 interpreta- 

tion of those rules. While the Federal 

Rules of Evidence embody a modern con- 

cept 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 jud lle the evidence presented 

petitioner's trial would probably. not* CESS 

have been admitted in a federal prosecu- = 

tion, this court cannot conclude that it was 

so seriously prejudicial that it undermined 

the reliability of the jury’s guilt determina- 

tion. Petitioner's Claim “F” is therefore 

    
   
   

   
   
    

    
   

    

    

   

    

   
   

   
   

  

   

  

   
   

  

   

    

     

        

   

    

   

  

   
   

  

        
    

      
      

   

    
     

      

         

  

  

   

  

  

  

X. CLAIM “M”"—THE SUGGESTIVE 

LINEUP. 

[45] In this claim petitioner contends 

that he was shown to at least three wit- 

nesses 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 

Court of Georgia thoroughly addressed this 

concern and found against petitioner. 

McClesky v. State, 245 Ga. 108, 110-12, 263 

SE.Z2d 146 (1980). In its discussion the 

Supreme Court of Georgia stated: 

The record shows that four witnesses 

immediately prior to the call of the case 

SW the appellant and four other persors 1 

si mn J 3 ed by deputy 

sheriffs. Each of these witnesses testi- 

fied 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 de- 

fendant 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 

  

    
  
 



394 

robberies. Therefore, no illegal post-in- 

dictment lineup occurred. . .. 

Appellant argues further that the four 

witnesses viewing him in the jury box as 

he awaited trial along with police identifi- 

cation procedures impermissibly tainted 

the witnesses’ in-court identification of 

the appellant. 

e threshold inquiry is whether the 

identification procedure Was impermissi- 
bly suggestive. Only if it was, need the 

court consider the second question: 

Whether there was a substantial likeli- 

hood 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 im- 

mediately prior _to trial by four of the 

State's witnesses was not impermissibly 

suggestive. Also we find the identifica- 

tions were not tainted by police identifi- 

cation procedures. 245 Ga. at 110, 263 

S.E.2d 146. 

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 PETI- 

TIONER’S STATEMENT INTRO- 

DUCED AT TRIAL WAS FREELY 

AND VOLUNTARILY GIVEN AF- 

TER A KNOWING WAIVER OF 

PETITIONER'S RIGHTS. 

[46] In this claim petitioner contends 

that the admission at trial of his state- 

ments given to the police was error be- 

cause 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 

580 FEDERAL SUPPLEMENT 

the presence of the jury, a Jackson v. Den- 
no hearing. The testimony at this hearing 
revealed that at the time he was arrested 

- petitioner denied any knowledge of the Dix- 

ie Furniture Store robbery. He was de- 
tained overnight in the Marietta Jail. The 
next morning when two Atlanta police offi- 
cers arrived to transfer him to Atlanta they 
advised him of his full Miranda rights. 
He again denied any knowledge of the Dix- 
ie Furniture Store robbery. There was 
some dispute about what was said during 
the half-hour trip back to Atlanta. Peti- 
tioner claimed that the officers told him 
that his co-defendants had implicated him 
and that if he did not start talking. they 
wall]ld throw him out of the car. The offi- 
cers, of course, denied making any such 
threat but did admit that they told petition- 

er that the other defendants were “trying 
to stick it on” him. The officers testified 
that during the trip back, after being fully 

advised of his Miranda rights and not be- 
ing 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 petitioner 

told Jowers that he was ready to talk. 

Detective Jowers had petitioner execute a 
written waiver of counsel. This waiver 
included full Miranda warnings anda 

statement that no threats or promises had 
been made to induce petitioner’s signature. 
Petitioner’s statement was then taken over 
the next several hours. During the first 

part of this session petitioner simply nar- 

rated 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 an- 
swer session was held on the record. 

These questions and answers were typed 
up by the secretary and signed by petition- 
er.  



McCLESKEY v. ZANT 395 

Cite as 580 F.Supp. 338 (1984) 

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 secre- 

tary who typed it testified that she had 

never seen the police officers treat a mur- 

der suspect with such warmth.3! 

After hearing all of the testimony and 

considering petitioner’s argument that the 

police had engaged in a “Mutt and Jeff” 

routine? the trial court ruled that the 

statement had been freely and voluntarily 

given after a knowing waiver of petition- 

er'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. 

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 de- 

fendant while another officer or group of offi- 

cers 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 

i was as follows: 

+i 0: “Now, Miss Weston, are you conscientious- 

ly opposed to capital punishment? 

A: Yes. 

Q: Your opposition towards capital punish- 

ment, 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 doc- 

trine of our church. We have a manual that 

we go by. 

Q: Does your church doctrine oppose capital 

punishment? 

A: Yes. 

Q: So you would oppose the imposition of 

capital punishment regardless of what the 

facts would be? 

CLAIM “0”’—EXCLUSION OF 

DEATH-SCRUPLED JURORS. 

Petitioner claims that the exclusion of 

two prospective jurors because of their op- 

position to the death penalty violated his 

Sixth Amendment rights under Wither- 

spoon . llinois, 391 U.S. 510, 88 S.Ct. 

1770, 20 L.Ed.2d 776 (1968). Both jurors 

indicated that they would not under any 

circumstances consider the death penalty.® 

XII 

[47] In Witherspoon v. 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 had been excluded, 

unless those persons had indicated that 

their opposition to the death penalty would 

prevent them from fulfilling their oaths as 

jurors to apply the law: 

[N]othing 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 

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. 

The testimony of Emma T. Cason was as 

follows: 
Q: Mrs. Cason, are you conscientiously op- 

posed 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 imposition of the death penalty? 

A: 1 don't think so, no. 1 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, 1 will excuse you and 

let you return to the jury assembly room on 

the fourth floor. 

Transcript 129-30.  



396 

automatically vote against the imposi- 
tion of capital punishment without re- 

gard 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 mak- 
ing an impartial decision as to the de- 

fendant’s guilt. 391 U.S. at 522-23 n. 

21, 88 S.Ct. at 1776-77 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 penal- 

ty, the trial court committed no error in 

excluding them. See Boulden v. Holman, 

394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 

(1969). : 

[48] Petitioner's argument that the ex- 
clusion of death=Scrupléd jurors violated his 
right to be tried by a jury drawn from a 
representative cross section of his commu- 

nity has already been considered and re- 

jected in this circuit. Smith v. Balkcom, 

660 F.2d 573, 582-83 (5th Cir. Unit B 1981), 

cert. denied, 459 U.S. 882, 103 S.Ct. 181, 
74 L.Ed.2d 148-(1982); Spinkellink wv. 

© Wainwright, 578 F-2d 582, 593-99 (5th Cir. 
1978), cert. denied, 440 U.S. 976, 99 S.Ct. 

1548, 59 L.Ed.2d 796, reh’qg denied, 441 
U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 

(1979). The Court in Spinkellink also re- 

jected petitioner’s claims that the exclusion 

of death-scrupled jurors resulted in a prose- 

cution-prone jury or a jury that was incapa- 

ble of maintaining “a link between contem- 

porary community values and the penal 
system.” 578 F.2d at 593-99. See gener- 

ally, Woodson v. North Carolina, 428 U.S. 
280, 295, 96 S.Ct. 2978, 2987, 49 L.Ed.2d 

944 (1976). 

Because the two prospective jurors indi- 

cated they would not consider the death 

penalty under any circumstances, they 

were properly excluded, and ‘petitioner's 
Claim “O” is without merit. 

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 

XIII 

580 FEDERAL SUPPLEMENT 

to serve rational interests. Neither peti- 

tioner nor the State has briefed this issue, 

but the premise appears to be that the 

supposed deterrent value of the death pen- 

alty cannot be demonstrated; that execu- 

tions set socially-sanctioned examples of 

violence; that public sentiment for retribu- 

tion 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 ad- 

dressed to the political bodies. See Fur- 

man v. Georgia, 408 U.S. 238, 410, 92 S.Ct. 

2726, 2814, 33 L.Ed.2d 346 (1972) (Black- 

mun, J., dissenting). Georgia's death pen- 

alty was declared constitutional in Gregg v. 

Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 

2929, 49 L.Ed.2d 859 (1976). Petitioner’s 

Claim “I” is therefore without merit. 

XIV. CLAIM “Q"—PETITIONER’S 

BRADY CLAIM. ~~ 

Petitioner contends that prior to trial de- 

fense counsel filed a Brady motion seek- 

ing, 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 while in 

the Fulton County Jail. Petitioner con- 

tends that this failure to produce the state- 

ment prior to trial entitles him to a new 

trial. 

[49,50] Brady v. Maryland, 373 U.S. 

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) 

requires the prosecution to produce any 

evidence in its possession which would tend 

to be favorable or exculpatory to the de- 

fendant. However, Brady does not estab- 

lish any right to pretrial discovery in a 

criminal case, but instead seeks only to 

insure the fairness of a defendant's trial 

and the reliability of the jury’s determina- 

tions. United States v. Beasley, 576 F.2d 

626 (5th Cir.1978), cert. denied, 440 U.S. 

947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). 

Thus, a defendant who seeks a new trial 

under Brady must meet three require-  



peti- 

issue, 

t the 
pen- 

bxecu- 

es of 

btribu- 

of the 

hose is 

more 

ment. 
ly ad- 

Fur- 

R S.Ct. 

Black- 

h pen- 

egg v. 

2909, 

joner’s 

ER’S 

jal de- 

seek- 

alleged 

k failed 

alleged 

hile in 

br con- 

e state- 

a new 

3 US. 

(1963) 

ice any 

1d tend 

the de- 

t estab- 

ry in a 

only to 

t's trial 

termina- 

b76 F.2d 

140 U.S. 
b (1 11 

ew 

require- 

McCLESKEY v. ZANT 397 

Cite as 580 F.Supp. 338 (1984) 

ments to establish a successful claim: “(1) 

The prosecutor's suppression of the evi- 

dence, (2) the favorable character of the 

suppressed evidence for the defense, and 

(8) the materiality of the suppressed evi- 

dence.” Martinez v. Wainwright, 621 

F.2d 184 (5th Cir.1980); United States v. 

Preston, 608 F.2d 626, 637 (5th Cir.1979), 

cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 

64 L.Ed.2d 794 (1980); United States v. 

Delk, 586 F.2d 513, 518 (5th Cir.1978). 

[511 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 rob- 

bery by Mary Jenkins. This testimony con- 

tradicted Mary Jenkins’ earlier testimony 

and thus had impeachment value against 

one of the State’s witnesses. However, the 

very testimony that would have been im- 

peached was testimony favorable to peti- 

tioner. 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’ tes- 

timony 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 thal the-evidenee-in_question was sup- 

pressed by the prosecution. While it Was 

notproduced prior to triat it was produced 

during the trial. Thus, the jary was able 

t5-consider it in its deliberations. Petition- 

er has produced no cases to support the 

propositon that the failure of the prosecu- 

tion to produce evidence prior to trial en- \ 

titles him to a new trial where that evi- 

dence 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 introduced at trial was insuffi- 

cient to prove beyond a reasonable doubt 

that he was the triggerman who shot Offi- 

cer Schlatt and that the shooting constitut- 

6d malice murder. Petitioner does not ar- 

gue that the evidence was insufficient to 

support his conviction for armed robbery. 

[52] As part of its review in this case, 

the Supreme Court found that “the evi- 

dence factually substantiates and supports 

the finding of the aggravating circumstanc- 

es, the finding of guilt, and the sentence of 

death by a rational trier of fact beyond a 

reasonable doubt.” McClesky v. State, 245 

Ga. 108, 115, 263 S.E.2d 146 (1980). In 

reviewing the sufficiency of the evidence, 

this court must view the evidence in a light 

most favorable tothe State and should 

s\stam the jury's verdict unless, it finds 

that no rational trier of fact could find the 

defendant guilty beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 

99°S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

Mich of the evidence against petitioner 

was circumstantial. Witnesses placed him 

in the front of the store carrying a nickel- | 

L plated revolver matching the description of 

a 38 caliber Rossi which petitioner had, 

| stolen in an earlier armed robbery. (THe | 

Netare's ballistics expert testified that the 

| bullet which killed Officer Schlatt was 

| probably fired from a .38 caliber Rossi. J At 

Teast one witness testified that the shots 

were fired from a point closer to the front 

of the store than she was lying. 

[53] While the circumstantial evidence 

alone may not have been sufficient to sup- J 

port a verdict of malice murder, the State | 

also introduced highly damaging testimony 

by one of the co-defendants, Ben Wright, 

amd a Tellow mmate at the Fulton County 

Jail, Offie Evans. (‘Both of these witnesses 

“testified that petitioner had admitted shoot- 

ifg Officer Schlatt. Evans testified that  



398 

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 credibili- 
ty of this testimony. That was for the jury 

to do. Viewing all the evidence in a light 

most favorable to the State, this court can- 

not find that no rational trier of fact could 

find petitioner guilty beyond a reasonable 

doubt of malice murder. Jackson v. Vir 

ginia, supra. Petitioner's Claim “R” is 
therefore without merit. 

CLAIM “P"—INEFFECTIVE AS- 

SISTANCE OF COUNSEL. 

By this claim petitioner contends that he 

was denied effective assistance of counsel 

in contravention of the Sixth and Four- 

teenth Amendments. He alleges that his 

counsel was ineffective for the following 

~reasons: (1) That his attorney failed to 

| investigate adequately the State’s evidence 

Land possible defenses prior to trial; (2) that 

\ during the trial counsel failed to raise cer- 

Ltain objections or make certain motiops; (3) 

XVI. 

| 

( (that priarto-the-senteneing—phase of peti- | 

| tioner’s trial counsel failed to undertake an 

independent investigation into possible miti- 

| gating evidence and thus was unable to 

offer any mitigating evidence to the jury; 

| “and ay that after the trial, counsel Tailed to 
| review and correct the judge’s sentence 
report. 

[54-57] It is well established in this cir- 
cuit 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 v. Strickland, 693 
F.2d 1243, 1250 (5th Cir. Unit B, 1982) (en 
banc), cert. granted — U.S. —, 103 
S.Ct. 2451, 77 L.Ed.2d 1332 (1983); Gaines 
v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 
1978); Herring v. Estelle, 491 F.2d 125, 
127 (5th Cir.1974); MacKenna ». Ellis, 280 
F.2d 592, 599 (5th Cir.1960), cert. denied, 
368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 
(1961). However, the Constitution does not 
guarantee errorless counsel or counsel 
judged ineffective only by hindsight. Her- 
ring v. Estelle, supra. In order to be 

580 FEDERAL SUPPLEMENT 

entitled to habeas corpus relief on a claim 

of ineffective assistance of counsel, peti- 

tioner 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 “reasona- 

bly effective assistance,” and (2) that “inef- 

fectiveness of counsel resulted in actual and 

substantial disadvantage to the course of 

his defense.” Washington v. 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. 

A. Pretrial Investigation. 

It is beyond dispute that effective assist- 

4, ance of counsel requires some degree of 

pretrial investigation. “Informed evalua- 

tion of potential defenses to criminal 

| charges and meaningful discussion with 

one’s client of the realities of his case are 

cornerstones of effective assistance of 

counsel.” Gaines v. Hopper, 515 F.2d 

1147, 1149-50 (5th Cir.1978). In Wash- 

ington v. Strickland, 693 F.2d 1243 (5th 

Cir. Unit B 1982) (en banc), the court dis- 

cussed 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 measure- 

ment. 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 strat- 

egy of trial counsel.... In making that 

determination, courts should not judge 

the reasonableness of counsel's efforts 

from the omniscient perspective of hind- 

sight, but rather “from the perspective 

of counsel, taking into account all of the 

circumstances of the case, but only as  



assist- 

ree of 

evalua- 

riminal 

n with 

ase are 

nce of 

5 F.2d 

Wash- 

43 (5th 

urt dis- 

tigation 

kistance 

stated: 

jon that 

easure- 

upon a 

number 

plexity 

of the 

hll strat- 

ing that 

pt judge 

efforts 

of hind- 

spective 

h1l 0 

only as 

McCLESKEY v. ZANT 399 
Cite as 580 F.Supp. 338 (1984) 

those circumstances were known to him 

at the time in question.” Id. at 1251 

(quoting Washington v. Watkins, 655 

F.2d 1346 at 1356 [5th Cir. Unit A 1981]). 

The court went on to analyze a variety of 

cases falling into five general categories?! 

The category of cases identified by the 

Washington court which most closely re- 

sembles the present case was the one in 

which “counsel fails to conduct a substan- 

tial investigation into one plausible line of 

defense because of his 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 coun- 

sel would discern several plausible lines 

of defense he should ideally perform a 

substantial 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 aspira- 

tion to which all defense counsel should 

strive. It does not, however, represent 

the constitutional minimum for reason- 

ably effective assistance of counsel.... 

Realistically, given the finite resources 

of time and money that are available 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 rela- 

tively early in the representation process 

after conferring with his client, review- 

ing the State’s evidence, and bringing to 

bear his experience and professional 

judgment. Thereafter, he will constitute 

his finite resources on investigating 

34. The five categories of cases dealing with 

claims of ineffective 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 sub- 

stantial 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 

those lines of defense upon which he has 

chosen to rely. 

The choice by counsel to rely upon cer- 

tain 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 gen- 

erally based upon counsel’s professional 

assumptions regarding the prospects for 

success offered by the various lines. 

The cases generally conform to a worka- 

ble and sensible rule: When counsel’s 

assumptions are reasonable, given the 

totality of the circumstances and when 

counsel's strategy represents a reasona- 

ble choice based upon those assumptions, 

counsel need not investigate lines of de- 

fense that he has chosen not to employ at 

trial. 693 F.2d at 1254-55. 

[58] In the present case petitioner’s tri- 

al counsel was faced with two plausible 

lines of defense—an alibi defense or a de- 

fense that petitioner participated in the rob- 

bery but was not the triggerman who killed 

Officer Schlatt. Pursuing the second de- 

fense would almost have guaranteed a con- 

viction for armed robbery and felony mur- 

der, for which petitioner could still have 

received the death penalty or at least life 

imprisonment.?® On the other hand, a suc- 

cessful alibi defense offered the prospect 

of no punishment at all. Trial counsel tes- 

tified al 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 prelimi- 

nary hearing he and McCleskey reasonably 

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 sub- 

ject 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 impris- _/ 

onment. Ga.Code Ann. § 26-1101 (now codi-* 

fied at 0.C.G.A. § 16-5-1).  



400 

believed that an alibi defense could be suc: 
cessful. 
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 hear- 

ing, despite the fact that she was standing 

only a few feet from him. Given the con- 

tradictory descriptions given by the wit- 

nesses at the store, the inability of Mamie 

Thomas to identify petitioner, and petition 
er’s repeated statements that he was not 

present at the scene, and the possible out- 

come of pursuing the only other-defense 

available, the court cannot say “that trial 

counsel's decision to pursue the alibi de- 

fense was unreasonable or constituted inef- 

fective assistance of counsel. 

[59] Having made a reasonable strate- 

gic 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 peti- 

tioner indicates that these employees would 

have contradicted the State’s theory of the 

case. At best, they might have cumulative- 

ly created a reasonable doubt as to whether 

petitioner was the triggerman. This, how- 

ever, 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 v. Watkins, 655 F.2d 1346 (5th 

Cir. Unit A 1981), cert. denied, 456 U.S. 

949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) 

(failure to interview in person the only eye 

36. Although Mamie Thomas recanted her testi- 
mony immediately after the preliminary hear- 
ing, telling one of the detectives that she had 
lied because she was scared, and a later inter- 
view 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 sworn 
testimony of a witness favorable to his client. 

A primary reason for this belief 

580 FEDERAL SUPPLEMENT 

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). 

[60] 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 in- 

vestigation as to what his testimony would 

be may have uncovered the details of his 

escape from a halfway house and the pend- 

ing federal charges against him, his 

“understanding” with an Atlanta police de- 

tective, his history of drug use, and his 

imaginative story that he had gone to Flori- 

da and participated in an undercover drug. 

investigation during his escape. Discovery 

of such evidence would have had substan- 

tial impeachment value, However, this" 

court canndot=fifid 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 sus- 

pected that a jailhouse confession might be 

forthcoming, counsel testified that McCles- 

key told him that he had made absolutely 

no incriminating statements to anyone in 

the Fulton County Jail. There has been no 

allegation that petitioner was incompetent 

or insane at any time during this proceed- 

ing. It would be anomalous, then, for this 

court to grant petitioner habeas corpus re- 

lief on the grounds that petitioner’s counsel 

was ineffective because he did not disbe- 

lieve petitioner and undertake an indepen- 

dent investigation. 

[61] Finally, petitioner contends that 

his counsel was ineffective because he 

In other words, counsel could reasonably. be- 

lieve that the witness's testimony at trial would 
be substantially the same as it was at the prelim- 

inary hearing. When it turned out to be differ- 

ent, counsel took the proper step of impeaching 

her later testimony with her testimony at the 

preliminary hearing.  



  

NOTE: Where it 13 feasible, a syllabus (headnote} will be released, as ia 
being dane in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been pre- 
pared by the Reporter of Decisions for the convenience of the reader. See 
United States v. Detroit Lumber Co., 200 U. 8, 321, 327. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

AMADEO ». ZANT 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 87-5277. Argued March 28, 1988— Decided May 31, 1988 

Petitioner was convicted of murder and eriminal attempt to commit theft in 
the Superior Cowrt of Putnam County, Georgia. In accordance with the 

jury's recommendation of death, the court imposed the death penalty for 

the murder charge, and a 10-year sentence for the attempted theft 
charge. While petitioner’s direct appeal was pending, an independent 
civil action involving a challenge to voting procedures in Putnam County 
was brotight in Federal District Court, which found that a memorandum 
from the District Attorney's Office to the Putnam County Jury Commis- 

sioners waa intentionally designed to result in underrepresentation of 
black people and women in the master jury lists from which all grand and 
traverse (petit) juries were drawn. Bailey v. Vining, Civ. Action 
No. 76-199 MAC (MD Ga., Aug. 17, 1978). One of the plaintiffs’ attor- 
neys had uncovered the memorandum while researching the case. The 
District Court in Bailey concluded that the master lists could not be used 
for any purpose until the unconstitutional discrimination had been 
corrected, and ordered the Jury Commissioners to reconstitute the lists 

in conformity with the Constitution. Citing Bailey, petitioner's attor- 
neys, on his direct appeal, raised a challenge to the composition of the 
Putnam County j juries that had indicted, convicted, and sentenced peti- 

tioner. Affirming petitioner's convictions and sentences, the Georgiz 

Supreme Court rejected his challenge to the jury on the ground that it 
came too late. After exhausting hig state remedies, petitioner sought a 
writ of habeas corpus in Federal Distriet Court on the hasis of the jury 
composition. mstie, before the same judge who had decided the Bailey 
case. Granting the writ and noting the Bailey decision, the court con- 
cluded that petitioner had established sufficient cause for his failure to 

f 

 



  
    

  

it AMADEOQ » ZANT 

Syllabus 

raise in the trial court the jury challenge and sufficient prejudice to 
excuse the procedural default, The Court of Appeals found the record 
insufficiently developed for proper review of the question of cause, and 
remanded for an evidentiary hearing. On remand, the District Court 
held a hearing at which it received testimony from petitioner’s trial law- 
vers, a lawyer who assisted petitioner's lawyers in developing the jury 
challenge on direct appeal, and the lawyer who discovered the memoran- 
dum in the Bailey case. The judge then reaffirmed his sarlier conelu- 
sion that petitioner had demonstrated adequate cause to excuse his pro- 
cedural default. The Court of Appeals reversed, stating that it 
“disagreed” with the District Court's conclusion that the racial disparity 
on the jury lists was concealed by county offieials. The Court of Ap- 
peals found instead that the memorandum was readily discoverable in 
the public records, and that the lawyers had made a considered tactical 
decision not to mount a jury challenge. In light of its findings, the court 
concluded that petitioner had not established cause for his failure to raise 
the constitutional challenge in accordance with Georgia procedural law. 

Held: The factual findings upon which the District Court based its conclu- 
sion that petitioner had established cause for his procedural default were 
not clearly erroneous and should not have been set aside by the Court of 

Appeals, Pp. 8-13. 
(a) Although a “tactical” or “intentional” decision to forgo a procedural 

opportunity in state court normally cannot constitute cause, the failure 
of counsel to raise a constitutional issue reasonably unknown to him is a 
situation in which the cause requirement is met. A showing that the 
factual or legal basis for a claim was not reasonably available to counsel 
or that some interference by officials made compliance impracticable, 
constitutes cause. The facts found by the District Court here permitted 
the court’s legal conclusion that petitioner had established cause for his 
procedural default. If the Distriet Attorney's memorandum was not 
reasonably discoverable because it was concealed by county officials, and 
if that concealment, rather than tactical considerations, was the reason 
for the failure of petitioner’s lawyers to raise the jury challenge in the 
trial court, then petitioner established ample cause to excuse his proce- 
dural default. The Court of Appeals offered factual rather than legal 
grounds for its reversal of the District Court's order, concluding that nei- 
ther of the two factual predicates for the District Court's legal conelusion 
was supported by the record. However, a federal appellate cowt may 
set aside a trial court's factfindings only if they are “clearly erroneous,” 
and must give due regard to the trial court’s opportunity to judge the 
eredibility of the witnesses. The record viewed in its entirety estab- 
lishes that the Court of Appeals failed properly to apply the “clearly 
erroneous” standard. Pp. 6-8. 

 



  

AMARE ZANT gs 0, ad ap 

Syllabus 

(b) The District Comrt’s factual finding that the District Attorney's 
memorandum was concealed by county officials and therefore was not 
reasonably available to petitioner’s lawyers was not clearly erroneous. 
Based on the record, the District Court permissibly could have con- 
chided that the memorandum was discovered by mere fortuity and that 
it would not have been “readily discoverable” had petitioner’s trial attor- 

neys investigated the jury lists that were relevant to his trial. The 
Court of Appeals identified no evidence in the record—aside from the 
faot that the memorandum eventually was discovered —that contradicted 
the District Court's conelusions about the concealment and availability of 

the memorandum. Pp. 8-9. 
(¢) The District Court's conclusion that petitioner’s lawyers did not 

deliberately bypass the jury challenge also was not clearly erroneous. 
Although there is significant evidence in the record to support the find- 
ings of fact favored by the Court of Appeals, there is also significant evi- 

dence to support the District Court's contrary conclusion. Where there 
are two permissible views of the evidence, the factfinder’s choice be- 
tween them cannot be clearly erroneous. Here, the District Court rea- 
sonably could have eoneluded that the trial lawyers’ statements that they 
considered but ultimately rejected a jury challenge simply were not 
credible. This conclusion was also supported by the directly contradic- 
tory testimony of two other witnesses at the habeas corpus hearing and 
by events contemporaneous with the jury selection process. The Dis- 
trict Court's lack of precision about the bases for its factual conclusions 
furnishes no excuse to ignore the dictates of the clearly erroneous stand- 

ard and to engage in impermissible appellate factfinding. Pp. 9-13. 

816 F. 2d 1502, reversed and remanded. 

MARSRALL, J., delivered the opinion for a unanimous Court. 

ys bd 

 



  

Pa 44 

hx This opinion is subject to formal revision before publication in the 
print of the Unitad States Reports. Readers are requested to 

irs =e ea of Decisions, wire Court of the United States, Wash- 
ike. D C. 20543, of any y SVjeqraphieal or other formal errors, in order 
that eqrrections may be made be th preiminy pri goo 5 pros 

SUPREME COURT OF THE UNITED STATES 
  

No. 87-5277 

  

TONY B. AMADEO, PETITIONER » 
WALTER ZANT, WARDEN 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

May 31, 1988] 

JUSTICE MARSHALL delivered the opinion of the Court. 

In considering petitioner's motion for a writ of habeas cor- 
pus, the District Court concluded that petitioner successfully 
established cause for his failure to raise in the state trial 
court a constitutional challenge to the composition of the ju- 
ries that indicted him, convicted him, and sentenced him to 
death. This case presents the question whether the factual 
findings upon which the District Court based its conclusion 
were clearly erroneous. 

I 

Petitioner Tony B. Amadeo was convicted of murder and 
criminal attempt to commit theft in November 1977, in the 
Superior Court of Putnam County, Georgia. The jury re- 
turned a recommendation of death for the murder charge, 
and the court imposed the death sentence. In addition, the 
court imposed a 10-year sentence for the attempted theft 
charge. 

Nine months later, while petitioner was pursuing his direct 
appeal to the Georgia Supreme Court, an independent civil 
action in federal court brought to light a scheme by the Dis- 
trict Attorney and the Jury Commissioners of Putnam 
County to underrepresent black people and women on the 
master jury lists from which all grand and traverse (petit) 
juries were drawn. See Bailey v. Vining, Civ. Action 

 



  

87-5277— OPINION 

2 AMADEO » ZANT 

No. 76-199 MAC (MD Ga., Aug. 17, 1978). Bailey involved 

a challenge to the at-large voting procedures in Putnam 

County. In the course of researching the case, one of the 

plaintiffs’ attorneys reviewed the master jury lists for a pe- 

riod of 20 to 30 years and uncovered a handwritten memoran- 

dum on a sheet of legal paper. The missive bore no caption 

or other designation, no signature, no date, and no file stamp 

from the court clerk’s office. Under the heading “Result,” 

the sheet listed figures for the number of black people and 
women to be placed on the master jury lists that would resuit 
in their underrepresentation on grand and traverse juries by 
arange of 5 to 11%. App. 4. The attorney who discovered 
the memorandum asked the clerk of the court where it came 

from, and the clerk responded that it was instructions from 

the District Attorney’s Office to the Jury Commissioners 

about the master jury lists. Id., at 45. According to the 

clerk, the Jury Commissioners followed the memorandum’s 

instruetions.! Id., at 9. 
The District Court in Bailey found that the memorandum 

was intentionally designed to underrepresent black people 

and women on grand and traverse juries without giving rise 

to a prima facie case of racial discrimination under this 
Court's opinion in Swain v. Alabama, 380 U. 8. 202, 208-209 

(1965) (underrepresentation of less than 10% is insufficient, to 

prove intentional discrimination), and the Fifth Cirenit’s 

opinion in Preston v. Mandeville, 428 F. 24 1392, 1393-1394 
(1970) (18.3% underrepresentation constitutes prima facie 
case). See App. 10, 78. Concluding that the master jury 
lists could not be used for any purpose until the diserimina- 
tion had been corrected, the District Court ordered the Jury 

The Jury Commissioners were able to determine the race of prospec- 
tive jurors because the master jury lists were drawn from the list of regis- 
tered voters in Putnam County, which was maintained on a racially segre- 
gated basis. See Bailey v. Vining, Civ. Aetion No. 76-199 MAC (MD Ga. 
Aug. 17, 1978), p. 2. 

 



  

sagodd 

© + ——————— —1 1   
  

| 87-82TT— OPINION 

AMADEO vu ZANT 3 

Commissioners to reconstitute the lists in conformity with 
the Constitution. Bailey v. Vining, supra, at 7. 

Citing the District Court's order in Bailey, petitioner's at- 
torneys raised a challenge to the composition of the Putnam 
County juries that had indicted, convicted, and sentenced pe- 
titioner in their opening brief on direct appeal to the Georgia 
Supreme Court. In addition, petitioner’s attorneys filed a 
supplemental brief devoted solely to the jury composition 
issue, in which they argued that the challenge had not been 
waived in Superior Court because they had not had any 
opportunity to discover the purposeful discrimination. See 
App. 14-18, The Georgia Supreme Court nevertheless af- 
firmed petitioner’s convictions and sentences, rejecting his 
challenge to the jury on the ground that it “comes too late.”? 
Amadeo v. State, 243 Ga. 627, 629, 255 8, E., 2d 718, 720, 
cert. denied, 444 U. 8S. 974 (1979). Petitioner twice sought a 
writ of habeas corpus in the state courts without success, and 
this Court denied certiorari both times, 

After exhausting his state remedies, petitioner sought a 
writ of habeas corpus in Federal District Court. Petitioner’s 
habeas petition was heard by the same District Judge who 
had decided the Bailey case. The court noted that Bailey 
established that the Putnam County Jury Commissioners had 
composed the master jury lists so as deliberately to under- 
represent black citizens without giving rise to a prima facie 
case of intentional discrimination. App. 78. . Accordingly, 
the court concluded that “[cllearly, petitioner was indicted, 
tried and sentenced by unconstitutionally composed juries.” 
Ibid. The court went on to explain that in light of the Geor- 
gia Supreme Court’s finding of waiver under state law, peti- 
tioner could assert his constitutional claim in the federal 

Georgia law requires that a known challenge to the composition of the 

grand jury be raised before indictment, see Sanders v. State, 235 Ga. 425, 
425-426, 219 S, E, 24 768, T71 (1975), and that a challenge to the compo- 
sition of the traverse jury be raised before voir dire commences, see Spen- 
cer v. Kemp, T81 F. 2d 1468, 1463~1464 (CA1l 1986) (en banc). 

 



  

87-5277—0PINION 

4 AMADEO » ZANT 

habeas proceeding only if he established cause and prejudice 

within the meaning of this Court's decision in Francis v. 

Henderson, 425 U. S. 536, 542 (1976). Observing that peti- 

tioner’s lawyers had raised the discrimination claim as soon 

as the inculpatory evidence came to light, the court found 

that they had engaged in no “‘sandbagging’” or “deliberate 

bypass” —the principal concerns behind the cause and preju- 

dice requirement. Coneluding that to overlook the inten- 

tional discrimination in this case would result in a “misecar- 

riage of justice,” the District Court found sufficient cause and 

prejudice to excuse the procedural default and granted the 

writ on the basis of petitioner’s constitutional challenge. 

App. 80. 
The Court of Appeals for the Eleventh Circuit remanded 

the case for an evidentiary hearing. Amadeo v. Kemp, 773 

F. 2d 1141 (1985). Acknowledging that neither party had 

requested a hearing before the District Court, the Court of 

Appeals nonetheless found the record insufficiently devel- 

oped for proper review of the question of cause! Id., 

at 1145. The Court of Appeals requested that the Distriet 

Court establish on remand “[tThe specifics of the alleged 

unconstitutional method of selecting the jurors and whether 

this method was so devious and hidden as to be non- 

discoverable.” Ind. 
On remand, the District Court held an evidentiary hearing 

at which it received testimony from petitioner’s two trial law- 

yers, a lawyer who assisted petitioner’s lawyers in develop- 

ing the jury challenge on direct appeal, and the lawyer who 

discovered the memorandum in the Bailey case. At the con- 

clusion of the hearing, the judge issued an oral order and 

memorandum opinion in which he reaffirmed his earlier con- 

clusion that petitioner had demonstrated adequate cause to 

*Noting that the State apparently had conceded that the Putnam 

County jury selection procedures were unconstitutional, the Court of Ap- 

peals found the prejudice requirement to be satisfied. 773 F. 2d, at 1145 

n 6. 

 



  

  

- §7-5277=0PINION 

AMADEO v, ZANT 5 

excuse his procedural default. App. 90-93. The court ob- 
served that the District Attorney had made no attempt to 
deal honestly with petitioner’s lawyers and reveal that he had 
guided the Jury Commissioners’ manipulation of the jury 
lists. Id., at 92. The court coneluded that, in light of all the 
circumstances of the case, “it was reasonable for [petitioner’s 

lawyers] at the time that they were appointed, to not chal- 
lenge the list,” ibid., adding, “I don’t think it was a deliberate 
by-pass in any sense.” Id., at 93. The court specifically 
found that if petitioner's lawyers had known of the District 
Attorney's memorandum, they would have challenged the 
composition of the jury. Id., at 92. 

A divided panel of the Eleventh Circuit reversed, 
Amadeo v. Kemp, 816 ¥., 2d 1502 (1987). The court noted 
that the Distriet Court had found that the racial disparity on 
the jury lists was concealed by county officials, id., at 1507, 
but the court stated simply that it “disagree{d] with that con- 
clusion.” Ibid. The court found instead that “[t]he memo- 
randum detailing the county’s efforts to alter the racial com- 
position of the master jury lists. . . was readily discoverable 
in the county’s public records” and that petitioner’s lawyers 
“would have found the memorandum” had they examined the 
records. Ibid. The court further found that petitioner’s 
lawyers had “made a considered tactical decision not to 
mount a jury challenge because they wanted to preserve an 
advantageous jury venire,” ibid., although the court ae- 
mowledged that there had been conflicting testimony at the 
evidentiary hearing on this point. Id., at 1507, n. 9. In 
light of these findings, the court concluded that petitioner 
had not established cause for his failure to raise his constitu- 
tional challenge in accordance with Georgia procedural law, 

The dissenting judge argued as a threshold matter that the 
majority ignored its obligation to defer to the trial court's 
factual findings unless they are clearly erroneous. Id., at 
1508, 1510, 1511. More broadly, the dissent maintained that 
“Iwlhere the state’s efforts to conceal its misconduct cause an 

 



  

87-5277—0PINION 

6 AMADEO » ZANT 

issue to be ignored at trial, the state should not be allowed to 

rely on its procedural default rules to preclude federal habeas 

review.” Id., at 1513. 
We granted certiorari, 484 U. 8. —— (1987), and. we now 

reverse. 
II 

In Wainwright v. Sykes, 433 U. 8. 72 (1977), this Court 

adopted the “cause and prejudice” requirement of Francis v. 
Henderson, supra, for all petitioners seeking federal habeas 

relief on constitutional claims defaulted in state court. The 

Sykes Court did not elaborate upon this requirement, but 

rather left open “for resolution in future decisions the precise 

definition of the ‘cause’-and-‘prejudice’ standard.” 433 

U. 8., at 87. Although more recent decisions likewise have 

not attempted to establish conclusively the contours of the 

standard, they offer some helpful guidance on the question of 
cause. In Reed v. Ross, 468 U. 8. 1 (1984), the Court ex- 

plained that although a “tactical” or “intentio ecision to 
forgo a procedural opportunity normally eannot constitute 
cause, id., at 13-14, “the failure of counsel to raise a constitu- 

tional i Sunknowr to Aim 18 one situation in 

which the [cause] requirement is met.” Id., at 14. The 

Court later elaborated upon Ross and stated that “the exist- 

ence of cause for a procedural default must ordinarily turn on 

whether th prisner can ha Sat some objective ar x 
to the defense impeded counsels efforts to comply 

wi Bw s procedural rule.” Murray v. Carrier, 477 
U. 8. 478, 488 (1986). We explained that “a showing that 

the factual or legal basis for a claim was not reasonably avail- 
able to counsel, or that ‘some interference by officials’ 
compliance impracticable, would constitute cause under this 

standard.” Ibid. (citations omitted). 
The Court of Appeals did not contest, nor could it, that the 

facts found by the District Court in this case permitted the 
District Court’s legal conclusion that petitioner had estab- 
lished cause for his procedural default. If the District Attor- 

  

  

  

& conshibtimed. see 
becsouelts, Gard Gorgrm 

somo abiechoe Tacky 
eyleyncd foie leue 

A SWAG infer rene by, 

o6 cals 

 



  

§7-5277—OPINION 

AMADEO ZANT 7 

ney’'s memorandum was not reasonably discoverable because 
it was concealed by Putnam County offieials, and if that con- 
cealment, rather than tactical considerations, was the reason 
for the failure of petitioner’s lawyers to raise the jury chal- 
lenge in the trial court, then petitioner established le 
cause to excuse his proced e under this Court's 
precedents. The situation described by the District Court 
fits squarely, indeed almost verbatim, within our holdings in 
Ross and Carrier. First, the Distriet Court essentially 
found that the basis for petitioner’s claim was “reasonably 
unknown” to petitioner’s lawyers, Reed v. Ross, supra, at 14, 
because of the “objective factor” of “ ‘some interference by of- 
fieials.”” Murray v. Carrier, supra, at 488 (citation omit- 
ted). Second, the District Court’s finding of no deliberate 
bypass amounted to a conclusion that petitioner's lawyers did 
not make a “tactical” or “intentional” decision to forgo the 
jury challenge. Reed v. Ross, supra, at 13-14. 

Hence, the Court of Appeals offered factual rather than 
legal grounds for its reversal of the District Court's order, 
concluding that neither of the two factual predicates for the 
District Court's legal conclusion was adequately supported 
by the record. The Court of Appeals never identified the 
standard of review that it applied to the District Court's fac- 
tual findings. is well settled, however, that a federal ap- 
peliate court may set aside a trial court’s findings of fact only 
if they are “clearly erroneous,” and that it must give “due re- 
gard . . . to the opportunity of the trial court to judge of the 
credibility of the witnesses.” Fed. Rule Civ, Proe. 52(a); see 
Anderson v. Bessemer City, 470 U. 8. 564, 573-576 (1985) 
(deseribing clearly erroneous review generally); [Wade v. 
Mayo, 334 U. 8. 672, 683-684 (1948) (applying clearly errone- 
ous review in federal habeas proceeding). We have stressed 
that the clearly erroneous standard of review is a deferential 
one, explaining that “[i}f the district court’s account of the ev- 
idence is plausible in light of the record viewed in its entirety, 
the court of appeals may not reverse it even though con- 

  

 



  

87-527T7—-0PINION 

8 AMADEO v». ZANT 

vinced that had it been sitting as the trier of faet, it would 

have weighed the evidence differently.” Anderson v. Besse- 

mer City, supra, at 573-574. After considering the “record 

viewed in its entirety” in the instant case, we conclude that 

the Court of Appeals failed properly to apply this standard. 

A 

The first factual finding rejected by the Court of Appeals is 

the District Court’s conclusion that the District Attorney's 

memorandum was concealed by County officials and there- 

fore was not reasonably available to petitioner's lawyers. 

The Court of Appeals acknowledged that the District Court 

had found these facts. See 816 F', 2d, at 1507. But without 

examining the record or discussing its obligations under Rule 

52(a), the court simply expressed disagreement and substi- 

. tuted its own factual findings for those of the District Court. 

See ibid. (finding that the memorandum was “not concealed,” 

but rather “was readily discoverable in the county’s public 

records”). 
Even assuming, somewhat generously, that the Court of 

Appeals recognized and applied the appropriate standard of ppiled the & PETS priate standard of 

review, we cannot agree e District Court's factual 

findings were clearly erroneous. The District Court's fing- 

ing of concealment is supported by the nature of the memo- 

um itself, which was part of the documentary record be- 

fore the court. See App. 44. The District Attorney's 

memorandum was handwritten, unsigned, unstamped, and 

undesignated — phys! eristies that strong ¥ belie 

the notion e document was intended for public con- 

sum . , the attormey who 0 y discov- 

ered the memorandum testified that he did so as part of a 
sweeping investigation of 20 to 30 years worth of jury lists, 

Id., at 42. He further testified that the memorandum was 
“not on the first page of the materials that I was perusing but 
somewhere within the stack of materials that [the court 

clerk] gave me.” Id., at 44. This testimony was not dis- 

  

  

  

  

  

 



  

| $7-5277— OPINION 

AMADEO » ZANT 9 

puted, and a could have con- 
cluded that the memorandum was discovered by mere fortu; 

af it would not have been “res dily discoverable” had 
petitioner’ 8 attorneys investigated the jury lists that were 

relevant to petitioner’s trial. Indeed, the Court of Appeals 
identified no evidence in the record —aside from the fact that 
the memorandum eventually was discovered—that contra- 

dicted the District Court’s conclusions about the concealment 
and availability of the memorandum. The Court of Appeals 
therefore should not have set azide as clearly erroneous the 
District Court’s findings on these matters. 

  

    

    

  

B 

The second factual finding rejected by the Court of Ap- 
is the Distriet Court’s conclusion that petitioner’s law- 

yers did not deliberately b the jury challenge, Here 
Te Cott of Komal dro heavily u 
below, citing testimony from the evidentiary hearing in the 
strict Court to the effect that petitioner’s lawyers consid- 
ered a jury challenge, thought they could win it, but decided 
not to bring the challenge because they were pleased with the 
jury ultimately impaneled. See 816 F. 2d, at 1506, The 
Court of Appeals emphasized that petitioner is a white man 
with a history of assaulting black people and that petitioner’s 
lawyers therefore were not eager to have more black people 
on the jury. Ibid. The court also cited testimony from the 
lawyers that they were satisfied with the jury venire because 
it contained several members of a charismatic religious group 
i had seemed Jypatheiie to peittionge, Ibid. Most 

going to petitioner's on habeas was the court's Yel= 

ance on the statement my one of his lawyers that “we made a 
tactical decision, a knowing, decision not to challenge 

e array. ., quoting App. 23. 
In i stimony from petitioner 

  

     
  

  

  a   

 



  

87-6277—0PINION 

  

  

10 AMADEO 2, 2» ZANT i ie 

(that they bypassed we was s nol the same Talents that is now 

being pressed, ent available-at-the 
e of trial was a statistical challenge rather than a chal- 

. lenge based on direct evidence of intentional discrimination. 

The dissenting Circuit Judge also advanced this argument. 
816 F. 2d, at 1510-1511 cur J., dissenting).| In the alter" 
native, petitioner-argt g-Distriet Court's finding of 

no deliberate bypass was supported by other testimony and 
evidence in the record and thus should not have been set 
aside by the Court of Appeals. 

1s not necessary to address the merits of petitioner's firs 
argument, hecause we agree that the District Court's conelu- 
sion that petitioner’s lawyers did not deliberately bypass the 
jury challenge was not clearly erroneous. Although there is } iene 

signifieant evidence in the record to support the findings of X a el 
vored by the Court of Appeals there is @lsg/significant Wie, He Oishick 

& to support the Dis - Cott basins 

trary conclusion, a3 we describe in more detail below. We 
frequently Have emphasized that “{wlhere there are two per- 
missible views of the evidence, the factfinder’s choice be- 
tween them cannot be clearly erroneous.” Anderson v. Bes. 
semer City, 470 U. 8., at 574, citing United States v. Yellow 
Cab. Co., 338 U. S. 338, 342 (1949), and Inwood Labora- 
tories, Inc. v. Ives Laboratories, Inc., 456 U. 3, 844 (1982). 

We reaffirm that stricture today. 
First, the District Court reasonably could have concluded 

Pr -beyers IGA TH Ti. consisrd but 
y rejected a jury enge simply were not credible. 

(Pationer 3 trial lawyers, who were no longer representing 
him when they testified at the evidentiary hearing, had sig- 
nificant incentive to insist that they had considered every 
possible angle: they had lost a capital murder trial, and an- 
other lawyer had uncovered evidence of serious constitu- 

    
    

    

   
    | tional error in the proceedings.” Moreover, the lawyers’ 

statements that they thought they could win a jury challenge 
if they brought it are open to serious doubt. For one thing, 

 



    

87-5277—-OFPINION 

- AMADEQ wu. ZANT 11 
    

      

wyers were quite wrong that they could have won a 
jury challenge; the underrepresentation of blacks and women 
on the master jury lists was engineered precisely to avoid a 

tatistieal challenge. Faber the "snoing gun” 
of the memorandum or some other direct evidence of dis- 
crimination, a statistical challenge would have certainly 
failed. In addition, the lawyers, when pressed, could offer 

i rE 
jury challenge. Thus, it was reasonable for the District 
Court to reject the lawyers’ testimony and conclude that “ig- 
norance” of the strength of the jury challenge—rather than 
strategy —was the true reason for the lawyers’ failure to 

i e claim at trial. App. 93. 
ond the District Court’s refusal to credit the testimony 

ers was supported by the directly con- 
tradictory testimony of two other witnesses. ses. Christopher 
Coates, the lawyer who discovered the memorandum im the 
Bailey case, testified that when he told E. R..Lambert, one 
of petitioner’s lawyers, about the memorandum and the re- 
sult in the Bony case, Lambert said, “Well, we did not 
knowthat...I wish that we had known it because we were 
lookang EX eve 10 raise because it was a serious 
pss App. 47. In addition, C. Nelson Jernigan, a lawyer 
who assisted Lambert on ap testified that Lambert told 
him, “If I'd known about this j issue prior to trial, I 
WORN TEES TTT SE E060. Tt wos writhin The Ds- 
triet Court's discretion as factfinder to credit these state- 
ments over the potentially self-interested testimony of peti- 

  

  

  

  

  

  

  

  

‘See App. 23: 
“THE COURT: But I mean what led you to believe you would win if you 

challenged (the jury]...? 
“WITNESS PRIOR: I can’t answer that; I think we just had a general 

knowledge that it probably wasn't statistically right and I don't lnow—I 

don’t think we had any investigation to back that up.” 

See also id., at 39 (Witness Lambert offering no specific answer to the 
same question). 

 



    

87-5277T—OPINION 

12 AMADEO v ZANT 

tioner’s lawyers.” See Anderson v. Bessemer City, supro, 

at 575 (stressing the special deference accorded determina- 

tions regarding the credibility of witnesses). Indeed, the 

Court of Appeals even noted the conflict in the testimony be- 

fore the District Court, see 816 F. 2d, at 1507, n. 9, and its 
failure to defer to the District Court’s findings i in light of this 
recognition is difficult to fathom. 

Finally, the District Court's conclusion that petitioner’s 
lawyers did not deliberately bypass the jury challenge was 
supported by events contemporaneous with the jury selection 
process. Petitioner's lawyers fled pretrial motions for a 
change of venue and for a continuance to the next term of Su- 

© perior Court, both of which, it granted, would have resulted 

in_an entirel erent venire. pp. 61- Both e 

tions cited juror prejudice and claimed that a fair tial was 

not possible in Putnam County at that time. The District 

Court permissibly could have concluded that these motions 

and sworn statements undercut the lawyers’ statements that 

they were completely satisfied with the jury venire they had 

drawn, Indeed, the Distriet Court might well have consid- 

ered this evidence more persuasive than the after-the-fact as- 
Sessments of petitioner’s lawyers or the other witnesses. 

District Court could have been more pre- 

  

    
  

the District es ‘dentified Be “record evidence that sup- 

ported its findings or made clear that it was relying upon 

eredibility determinations, the Court of Appeals might have 

deferred to its factual findings without dispute. The District 
Court's lack of precision, however, is no excuse for the Court 

of Appeals to ignore the dictates of Rule 52(a) and engage in 
_impermissible appellate factfinding., See Icicle Seafoods, 
  

   
ation. Nonetheless, no objection ; eithe eT statement was ot at 

the hearin, and the State does not argue that the Distriet Court's admis- 
sion of the statements was “plain error” der Fed. Rule Evid. 108(d). 

   



87-5277 OPINION 

AMADEO ». ZANT 13 

Inc. v. Worthington, 475 U. 8. 709, 712-715 (1986). Because 
there is sufficient evidence in the record considered in its en- 
tirety to support the Distriet Court’s factual findings, the 
Court of Appeals should not have set them aside. Respond- 
ent does not dispute that those factual findings are sufficient 
as a matter of law to support a finding of cause.®* The Court 
of Appeals thus erred in holding petitioner’s jury challenge to 
be procedurally barred from federal habeas review. Accord- 
ingly, the judgment of the Court of Appeals is reversed, and 
the case is remanded for proceedings consistent with this 
opinion. 

It i3 so ordered. 

 Baoponent seems to arg e, however, that even if cause is bail to 5 

Arg. 3 ; nt 1s rn wit! Be o 
dispute in eitherthe Court or the Court of Appeals that the Be 
in Bailey of intentional racial discrimination in the composition of the mas- 
ter jury lists satisfies the 2 regimen of prejudice. See 2 Record 8T; 

41, s 1S n 6 San 1985). Havin con- 

w not he Heard to di 

  

. 4 3 n, 20 re Se bin a for affirmance must be properly 

raised below).  



  

U.S. SUPREME COURT REPORTS 95 L Ed 2d 

  

t 

C 
S 

k 
C 
I 
v 
t 

A 
WARREN McCLESKEY, Petitioner t 

wil v 1 

RALPH KEMP, Superintendent, Georgia Diagnostic and Classification : 

: Center J 

481 US —, 95 L Ed 2d 262, 107 S Ct — a 

| [No. 84-6811] I 

Argued October 15, 1986. Decided April 22, 1987. > 

Decision: Statistics indicating risk that race bias affects Georgia’s capital § y 

"sentencing held insufficient to prove that imposition of death penalty on : ir 

black man for murdering white man violated 8th or 14th Amendment. i t 

| SUMMARY i 

In the Superior Court of Fulton County, Georgia, a black man was ] 

convicted of murdering a white police officer during the course of a planned i p 

robbery. In order to consider the death penalty during the posttrial penalty ; V! 

hearing, the jury was required under Georgia law to find beyond a reason- : | pi 

able doubt that the murder was accompanied by one of the statutory | ir 

aggravating circumstances. The jury found two such circumstances to have ie 

existed: (1) the commission of the murder during the course of an armed 4 re 

"robbery, and (2) the fact that the victim was a peace officer engaged in the th 

performance of his duties. The jury also considered the mitigating circum- G 

stances of the accused’s conduct, although the accused offered no mitigating st 

evidence. The jury recommended that the accused be sentenced to death, § ch 

and the court followed the jury’s recommendation. On appeal, the Supreme 1 

Court of Georgia affirmed (245 Ga 108, 263 SE2d 146), and the United States 

Supreme Court denied certiorari (449 US 891, 66 L Ed 2d 119, 101 S Ct 253). | pe 

The accused unsuccessfully sought habeas corpus relief in the Georgia state | i ac 

courts, and' ultimately the United States Supreme Court again denied : te 

. certiorari (454 US 1093, 70 L Ed 2d 631, 102 S Ct 659). The accused next 5 m 

filed a petition for a writ of habeas corpus in the United States District i di 

Court for the Northern District of Georgia, in which he claimed that the i fo 

' state’s capital sentencing process was administered in a racially discrimina- 1 di 

tory manner in violation of the Eighth and Fourteenth Amendments. In 

support of his claim, the accused proffered a statistical study indicating 

262 
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McCLESKEY v KEMP 
95 L Ed 2d 262 

that, even after taking account of numerous nonracial variables, defendants 
charged with killing whites were 4.3 times as likely to receive a death 
sentence in Georgia as defendants charged with killing blacks, and that 
black defendants were 1.1 times as likely to receive a death sentence as 
other defendants. The District Court dismissed the habeas corpus petition, 
holding that (1) the statistics did not demonstrate that the death penalty 
was imposed on the accused in violation of the Eighth Amendment, and (2) 
the methodology of the study was flawed with respect to the Fourteenth 
Amendment claim (580 F Supp 338). The United States Court of Appeals for 
the Eleventh Circuit affirmed, although it assumed the validity of the study 
itself (753 F2d 877). 

On certiorari, the United States Supreme Court affirmed. In an opinion by 
PoweLL, J., joined by REunqQuist, Ch. J., and WHITE, O'CONNOR, and SCALIA, 
JdJ., it was held that (1) the statistical evidence was insufficient to support 
an inference that any of the decisionmakers in the accused’s case acted with 
discriminatory purpose in violation of the equal protection clause of the 
Fourteenth Amendment, since (a) the accused offered no evidence of racial 
bias specific to his own case, and (b) the statistical evidence alone was not 
clear enough to prove discrimination in any one case, (2) the study was 
insufficient to prove that the state violated the equal protection clause by 
adopting the capital punishment statute and allowing it to remain in force 
despite its allegedly discriminatory application, and (3) the study was 
insufficient to prove that the state’s capital punishment system was arbi- 
trary and capricious in application and that therefore the accused’s death 
sentence was excessive in violation of the Eighth Amendment. 

BRENNAN, J., joined by MaRrsHALL, J., and joined in part (with respect to 
point (2) below) by BLackMUN and STEVENS, JJ. dissented, expressing the 
view that (1) the death penalty is in all circumstances cruel and unusual 
punishment forbidden by the Eighth and Fourteenth Amendments, but that 
in any event (2) the accused’s death sentence violated the Eighth Amend- 
ment, since (a) the statistical evidence demonstrated an intolerable risk that 
racial prejudice influenced his particular sentence, (b) the probative force of 
the statistics was buttressed by the prior history of racial discrimination in 
Georgia's criminal law system, and (c) the Georgia sentencing system was so 
structured as to provide opportunities for racial considerations to influence 
charging and sentencing decisions. 

BLACKMUN, J., joined by MARSHALL and STEVENS, JJ., and joined in 
pertinent part by BRENNAN, J., dissented, expressing the view that the 
accused’s death sentence violated the equal protection clause of the Four- 
teenth Amendment, since the evidence showed that (1) the accused was a 
member of a group that was singled out for different treatment, (2) the 
difference in treatment was substantial in degree, and (3) Georgia’s process 
for seeking the death penalty was susceptible to abuse in the form of racial 
discrimination. 

STEVENS, J., joined by BrackmuN, J., dissented, expressing the view that 

263



    
cial prejudice. The inherent lack of 

predictability of jury decisions does 

pot justify their condemnation. On 

the contrary, it is the jury’s function 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

penalties and to claims based on 

unexplained discrepancies correlat- 

ing to membership in other minority 

groups and even to gender. The Con- 

‘to make the difficult and uniquely stitution does not require that a 

human judgments that defy codifica- 

tion and that build discretion, egq- 

uity, and flexibility into the legal 

‘system. host 

~ (c) At most, the Baldus study indi- 

cates a discrepancy that appears to 

correlate with race, but this discrep- 

ancy does not constitute a major 

systemic defect. Any mode for deter- 

mining guilt or punishment has its 

weaknesses and the potential for 

misuse. Despite such imperfections, 

constitutional guarantees are met 
i 

when the mode for determining guilt 

"or punishment has been surrounded 

with safeguards to make it as fair as 

possible. 

4, Petitioner’s claim, taken to its 

logical conclusion, throws into seri- 

ous question the principles that un- 

~ derlie the entire criminal justice sys- 

tem. His claim easily could be ex- 

' tended to apply to other types of 

State eliminate any demonstrable 

disparity that correlates with a po- 

tentially irrelevant factor in order to 

operate a criminal justice system 

that includes capital punishment. 

Petitioner's arguments are best pre- 

sented to the legislative bodies, not 

the courts. 

753 F2d 877, affirmed. 

Powell, J., delivered the opinion of 

the Court, in which Rehnquist, C.J. 

and White, O’Connor, and Scalia, 

JJ., joined. Brennan, J., filed a dis- 

senting opinion in which Marshall, 

J., joined, and in all but Part I of 

which Blackmun and Stevens, Jd., 

joined. Blackmun, J., filed a dissent- 

ing opinion in which Marshall and 

Stevens, JJ., joined, and in all but 

Part IV-B of which Brennan, Jd. 

joined. Stevens, J., filed a dissenting 

opinion in which Blackmun, J., 

joined. 

APPEARANCES OF COUNSEL 

John Charles Boger argued the cause for petitioner. 

Mary Beth Westmoreland argued the cause for respondent. 

OPINION OF THE COURT 

Justice Powell delivered the opin- 

. ion of the Court. 

[1a, 2a, 3a] This case presents the 

. question whether a complex statisti- 

. cal study that indicates a risk that 

racial considerations enter into capi- 

tal sentencing determinations proves 

that petitioner McCleskey’s capital 

. 'sentence is unconstitutional under 

' the Eighth or Fourteenth Amend- 

' ment. J 

1 

McCleskey, a black man, was con- 

272 \ 
| 

victed of two counts of armed rob- 

bery and one count of murder in the 

Superior Court of Fulton County, 

Georgia, on October 12, 1978. Mc- 

Cleskey’s convictions arose out of 

the robbery of a furniture store and 

the killing of a white police officer 

during the course of the robbery. 

The evidence at trial indicated that 

McCleskey and three accomplices 

planned and carried out the robbery. 

All four were armed. McCleskey en- 

tered the front of the store while the 

 



      

other three entered the rear. Mec- Cleskey secured the front of the 
store by rounding up the customers 
and forcing them to lie face down on 
the floor. The other three rounded 
up the employees in the rear and 
tied them up with tape. The man- 
ager was forced at gunpoint to turn 
over the store receipts, his watch, 
and $6.00. During the course of the 
robbery, a police officer, answering a 
silent alarm, entered the store 
through the front door. As he was 
walking down the center aisle of the 
store, two shots were fired. Both 
struck the officer. One hit him in the 
face and killed him. 

Several weeks later, McCleskey 
was arrested in connection with an 
unrelated offense. He confessed that 
he had participated in the furniture 
store robbery, but denied that he 
        

    

TTR 

McCLESKEY v KEMP 
95 L Ed 2d 262 

had shot the police officer. At trial, the State introduced evidence that 
at least one of the bullets that 
struck the officer was fired from a 
.38 caliber Rossi revolver. This de- 
scription matched the description of 
the gun that McCleskey had carried 
during the robbery. The State also 
introduced the testimony of two wit- 
nesses who had heard McCleskey 
admit to the shooting. 

The jury convicted McCleskey of 
murder.! At the penalty hearing,? 
the jury heard arguments as to the 
appropriate sentence. Under Georgia 
law, the jury could not consider im- 
posing the death penalty unless it 
found beyond a reasonable doubt 
that the murder was accompanied 
by one of the statutory aggravating 
circumstances. Ga Code Ann § 17-10- 
30(c) (1982). The jury in this case 

            
1. The Georgia Code has been revised and renumbered since McCleskey’s trial. The changes do not alter the substance of the sections relevant to this case. For conve- 

nience, references in this opinion are to the 
current sections. 

The Georgia Code contains only one degree of murder. A person commits murder “when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” Ga Code Ann § 16-5- l(a) (1984). A person convicted of murder “shall be punished by death or by imprison- ment for life.” § 16-5-1(d). 

2. Georgia Code Ann § 17-10-2(c) (1982) pro- 
vides that when a jury convicts a defendant of 
murder, “the court shall resume the trial and 
conduct a presentence hearing before the jury.” This subsection suggests that a defen- 
dant convicted of murder always is subjected 
to a penalty hearing at which the jury consid- 
ers imposing a death sentence. But as a mat- 
ter of practice, penalty hearings seem to be held only if the prosecutor affirmatively seeks the death penalty. If he does not, the defen- 
dant receives a sentence of life imprisonment, 
See Baldus, Pulaski, & Woodworth, Compara- tive Review of Death Sentences: An Empirical 

  

Study of the Georgia Experience, 74 J Crim L & C 661, 674, n. 56 (1983). 
3. A jury cannot sentence a defendant to death for murder unless it finds that one of the following aggravating circumstances ex- ists beyond a reasonable doubt: 

“(1) The offense . .. was committed by a person with a prior record of conviction for a 
capital felony; 
“(2) The offense . . . was committed while the 
offender was engaged in the commission of 
another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree; 
“(3) The offender, by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would 
normally be hazardous to the lives of more 
than one person; 
“(4) The offender committed the offense . . . for himself or another, for the purpose of receiving money or any other thing of mone- 
tary value; 
“(6) The murder of a judicial officer, former 
judicial officer, district attorney or solicitor, or former district attorney or solicitor was com- mitted during or because of the exercise of his 
official duties; 

273



  

found two aggravating circum- 

stances to exist beyond a reasonable 

doubt: the murder was committed 

during the course of an armed rob- 

bery, §17-10-30(b)X2); and the mur- 

der was committed upon a peace 

officer engaged in the performance 

of his duties, § 17-10-30(b)8). In mak- 

ing its decision whether to impose 
the death sentence, the jury consid- 

ered the mitigating and aggravating 

circumstances ‘of McCleskey’s con- 

duct. §17-10-2(c). McCleskey offered 

no mitigating evidence. The jury rec- 

ommended that he be sentenced to 
death on the murder charge and to 

consecutive life sentences on the 

armed robbery charges. The court 

followed the jury’s recommendation 

and sentenced McCleskey to death. 
1 

On appeal, the Supreme Court of 

Georgia affirmed the convictions and 

the sentences. McCleskey v State, 

245 Ga '108, 263 SE2d 146 (1980). 

This Court denied a petition for a 

writ of certiorari. McCleskey v Geor- 

gia, 449 US 891, 66 L Ed 2d 119, 101 

'S Ct 253 (1980). The Superior Court 

of Fulton County denied McCleskey’s 

extraordinary motion for a new 

‘trial. McCleskey then filed a petition 

for a writ of habeas corpus in the 

Superior Court of Butts County. Af- 

ter holding an evidentiary hearing, 

‘the Buperior Court denied relief. 
MuoCleshey v Zant, No, 4909 (Apr. 8, 

l] wow 

‘U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

1981). The Supreme Court of Geor- 

gia denied McCleskey’s application 

for a certificate of probable cause to 

appeal the Superior Court’s denial of 

his petition, No. 81-5523, and this 

Court again denied certiorari. Mc- 

Cleskey v Zant, 454 US 1093, 70 L 

Ed 2d 631, 102 S Ct 659 (1981). 

McCleskey next filed a petition for 

a writ of habeas corpus in the fed- 

eral District Court for the Northern 

District of Georgia. His petition 

raised 18 claims, one of which was 

that the Georgia capital sentencing 

process is administered in a racially 

discriminatory manner in violation 

of the Eighth and Fourteenth 

Amendments to the United States 

Constitution. In support of his claim, 

McCleskey proffered a statistical 

study performed by Professors David 

C. Baldus, George Woodworth, and 

Charles Pulanski, (the Baldus study) 

that purports to show a disparity in 

the imposition of the death sentence 

in Georgia based on the race of the 

murder victim and, to a lesser ex- 

tent, the race of the defendant. The 

Baldus study is actually two sophis- 

ticated statistical studies that exam- 

ine over 2,000 murder cases that 

occurred in Georgia during the 

1970s. The raw numbers collected by 

Professor Baldus indicate that defen- 

dants charged with killing white 

persons received the death penalty 
  

"(8) The offender caused or directed another 
to commit murder or committed murder as an 
agent or employee of another person; 

*“(T) The offense of murder, rape, armed rob- 
bery, or kidnapping was outrageously or wan- 
tonly vile, horrible, or inhuman in that it 
involved torture, depravity of mind, or an 
aggravated battery to the victim; 
“(8) The offense . . . was committed against 
‘any peace officer, corrections employee, or 
fireman while engaged in the performance of 

his official duties; 
“9) The offense . .. 

mn 

was committed by a 

ud 

person in, or who has escaped from, the law- 
ful custody of a peace officer or place of lawful 

confinement; or 
“(10) The murder was committed for the pur- 
pose of avoiding, interfering with, or prevent- 
ing a lawful arrest or custody in a place of 
lawful confinement, of himself or another.” 
§ 17-10-30(b). 

4. Georgia law provides that “[wlhere a 
statutory aggravating circumstance is found 
and a recommendation of death is made, the 
court shall sentence the defendant to death.” 

§ 17-10-31. 

  

strik; 
cases 
that 
ing t 
cases 
away 
wher 

 



              

in 11% of the cases, but defendants 
charged with killing blacks received 
the death penalty in only 1% of the 
cases. The raw numbers also indi- 
cate a reverse racial disparity ac- 
cording to the race of the defendant: 
4% of the black defendants received 
the death penalty, as opposed to 7% 
of the white defendants. 

Baldus also divided the cases ac- 
cording to the combination of the 
race of the defendant and the race of 
the victim. He found that the death 
penalty was assessed in 22% of the 
cases involving black defendants and 
white victims; 8% of the cases in- 
volving white defendants and white 
victims; 1% of the cases involving 
black defendants and black victims; 
and 3% of the cases involving white 
defendants and black victims. Simi- 
larly, Baldus found that prosecutors 
sought the death penalty in 70% of 
the cases involving black defendants 
and white victims; 32% of the cases 
involving white defendants and 
white victims; 15% of the cases in- 
volving black defendants and black 
victims; and 19% of the cases involv- 
ing white defendants and black vic- 
tims. 

Baldus subjected his data to an 
extensive analysis, taking account of 
230 variables that could have ex- 
plained the disparities on nonracial 
grounds. One of his models con- 

McCLESKEY v KEMP 
95 L Ed 2d 262 

cludes that, even after taking ac- 
count of 39 nonracial variables, de- 

fendants charged with killing white 
victims were 4.3 times as likely to 
receive a death sentence as defen- 
dants charged with killing blacks. 
According to this model, black defen- 
dants were 1.1 times as likely to 
receive a death sentence as other 
defendants. Thus, the Baldus study 
indicates that black defendants, such 
as McCleskey, who kill white victims 
have the greatest likelihood of re- 
ceiving the death penalty.’ 

The District Court held an exten- 
sive evidentiary hearing on McCles- 
key’s petition. Although it believed 
that McCleskey’s Eighth Amend- 
ment claim was foreclosed by the 
Fifth Circuit’s decision in Spinkel- 
link v Wainwright, 578 F2d 582, 612- 
616 (1978), cert denied, 440 US 976, 
59 L Ed 2d 796, 99 S Ct 1548 (1979), 
it nevertheless considered the Bal- 
dus study with care. It concluded 
that McCleskey’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.” 
McCleskey v Zant, 580 F Supp 338, 
379 (ND Ga. 1984). As to McCles- 
key’s Fourteenth Amendment claim, 

the court found that the methodol- 
ogy of the Baldus study was flawed 

  

5. Baldus’s 230-variable model divided cases 
into eight different ranges, according to the 
estimated aggravation level of the offense. 
Baldus argued in his testimony to the District 
Court that the effects of racial bias were most 
striking in the mid-range cases. [When the 
cases become tremendously aggravated so 
that everybody would agree that if we're go- 
ing to have a death sentence, these are the 
cases that should get it, the race effects go 
away. It’s only in the mid-range of cases 
where the decision makers have a real choice 

as to what to do. If there’s room for the 

exercise of discretion, then the [racial] factors 

begin to play a role.” App 36. Under this 

model, Baldus found that 14.4% of the black- 
victim mid-range cases received the death 

penalty, and 34.4% of the white-victim cases 
received the death penalty. See Exhibit DB 

90, reprinted in Supplemental Exhibits 54. 

According to Baldus, the facts of McCleskey’s 

case placed it within the mid-range. App. 45- 

46. 

275 

 



   
in several respects.® Because of these 
defects, the Court held that the Bal- 
dus study “fail[ed] to contribute any- 
thing of value” to McCleskey’s 
claim. Id., at 372 (emphasis omitted). 
Accordingly, the Court dismissed the 
petition. 

The Court of Appeals for the Elev- 
enth Circuit, sitting en banc, care- 
fully reviewed the District Court’s 
decision on McCleskey’s claim. 753 
F2d 877 (1985). It assumed the valid- 
ity of the study itself and addressed 
the merits of McCleskey’s Eighth 
and Fourteenth Amendment claims. 
That 'is, the court assumed that the 
study “showed that systematic and 
substantial disparities existed in the 
penalties imposed upon homicide de- 
fendants in Georgia based on race of 
the homicide victim, that the dispar- 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

ities existed at a less substantial 
rate in death sentencing based on 
race of defendants, and that the fac- 
tors of race of the victim and defen- 
dant were at work in Fulton 
County.” Id., at 895. Even assuming 
the study’s validity, the Court of 
Appeals found the statistics “insuffi- 
cient to demonstrate discriminatory 
intent or unconstitutional discrimi- 
nation in the Fourteenth Amend- 
ment context, [and] insufficient to 
show irrationality, arbitrariness and 
capriciousness under any kind of 
Eighth Amendment analysis.” Id., at 
891. The court noted: 

“The very exercise of discretion 
means that persons exercising dis- 
cretion may reach different results 
from exact duplicates. Assuming 
each result is within the range of 

  

, 6. Baldus, among other experts, testified at 
the evidentiary hearing. The District Court 
“was impressed with the learning of all of the 
experts.” 580 F Supp, at 353 (emphasis omit- 
ted). Nevertheless, the District Court noted 
that in many respects the data were incom- 
plete. In its view, the questionnaires used to 
obtain the data failed to capture the full 
degree of the aggravating or mitigating cir- 
cumstances. Id., at 356. The Court criticized 
the researcher’s decisions regarding unknown 

* variables. Id., at 357-358. The researchers 
could not discover whether penalty trials 
were held in many of the cases, thus under- 
cutting the value of the study’s statistics as to 
prosecutorial decisions. Id., at 359. In certain 

' cases, the study lacked information on the 
race of the victim in cases involving multiple 
victims, on whether or not the prosecutor 
offered a plea bargain, and on credibility 
problems with witnesses. Id., at 360. The 
court concluded that McCleskey had failed to 
establish by a preponderance of the evidence 
that the data was trustworthy. “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 infer- 
ences empirically arrived at are untrustwor- 
thy.” Ibid. 

The District Court noted other problems 
with Baldus’ methodology. First, the research- 
ers assumed that all of the information avail- 

276 

able from the questionnaires was available to 

the juries and prosecutors when the case was 
tried. The court found this assumption “ques- 
tionable.” Id., at 361. Second, the court noted 
the instability of the various models. Even 
with the 230-variable model, consideration of 
20 further variables caused a significant drop 
in the statistical significance of race. In the 

court’s view, this undermined the persuasive- 

ness of the model that showed the greatest 
racial disparity, the 39-variable model. Id., at 
362. Third, the court found that the high 

correlation between race and many of the 
nonracial variables diminished the weight to 

which the study was entitled. Id., at 363-364. 
Finally, the District Court noted the inabil- 

ity of any of the models to predict the out- 
come of actual cases. As the court explained, 

statisticians use a measure called an “r2“ to 
measure what portion of the variance in the 
dependent variable (death sentencing rate, in 
this case) is accounted for by the independent 
variables of the model. A perfectly predictive 
model would have an r2 value of 1.0. A model 
with no predictive power would have an r2 

value of 0. The r2 value of Baldus’ most 
complex model, the 230-variable model, was 

between .46 and .48. Thus, as the court ex- 
plained, “the 230-variable model does not pre- 
dict the outcome in half of the cases.” Id., at 
361. 

 



  

  

    

discretion, all are correct in the 
eyes of the law. It would not make 
sense for the system to require the 
exercise of discretion in order to 
be facially constitutional, and at 
the same time hold a system un- 
constitutional in application where 
that discretion achieved different 
results for what appear to be exact 
duplicates, absent the state show- 
ing the reasons for the difference. 

“The Baldus approach . .. 
would take the cases with differ- 
ent results on what are contended 
to be duplicate facts, where the 
differences could not be otherwise 
explained, and conclude that the 
different result was based on race 
alone. . . . This approach ignores 
the realities. . . . There are, in 
fact, no exact duplicates in capital 
crimes and capital defendants. 
The type of research submitted 
here tends to show which of the 
directed factors were effective, but 

is of restricted use in showing 
what undirected factors control 
the exercise of constitutionally re- 
quired discretion.” Id., at 898-899. 

The court concluded: 

“Viewed broadly, it would seem 
that the statistical evidence pre- 
sented here, assuming its validity, 

confirms rather than condemns 
the system. . . . The marginal dis- 
parity based on the race of the 

McCLESKEY v KEMP 
95 L Ed 2d 262 

victim tends to support the state’s 
contention that the system is 
working far differently from the 
one which Furman [v Georgia, 408 
US 238 [33 L Ed 2d 346, 92 S Ct 
2726] (1972)] condemned. In pre- 
Furman days, there was no rhyme 
or reason as to who got the death 
penalty and who did not. But now, 
in the vast majority of cases, the 
reasons for a difference are well 
documented. That they are not so 
clear in a small percentage of the 
cases i8 no reason to declare the 
entire system unconstitutional.” 
Id., at 899. 

The Court of Appeals affirmed the 
dismissal by the District Court of 
McCleskey’s petition for a writ of 
habeas corpus, with three judges dis- 
senting as to McCleskey’s claims 
based on the Baldus study. We 
granted certiorari, 478 US ——, 92 LL 
Ed 2d 737, 106 S Ct 3331 (1986), and 
now affirm. 

II 

[1b, 4a, 5a] McCleskey’s first claim 
is that the Georgia capital punish- 
ment statute violates the Equal Pro- 
tection Clause of the Fourteenth 
Amendment.” He argues that race 
has infected the administration of 
Georgia’s statute in two ways: per- 
sons who murder whites are more 
likely to be sentenced to death than 
persons who murder blacks, and 
black murderers are more likely to 

  

7. [4b] Although the District Court rejected 
the findings of the Baldus study as flawed, the 
Court of Appeals assumed that the study is 
valid and reached the constitutional issues. 
Accordingly, those issues are before us. As did 
the Court of Appeals, we assume the study is 
valid statistically without reviewing the fac- 
tual findings of the District Court. Our as- 
sumption that the Baldus study is statistically 
valid does not include the assumption that 

the study shows that racial considerations 

actually enter into any sentencing decisions 

in Georgia. Even a sophisticated multiple re- 

gression analysis such as the Baldus study 
can only demonstrate a risk that the factor of 

race entered into some capital sentencing 
decisions and a necessarily lesser risk that 

race entered into any particular sentencing 

decision. 

277



   

| 

be sentenced to death than white 
murderers.® «= 

As a black defendant who killed a 
white victim, McCleskey claims that 
the Baldus study demonstrates that 
he was discriminated against be- 
cause of his race and because of the 
race of his victim. In its broadest 
form, McCleskey’s claim of discrimi- 
nation extends to every actor in the 
Georgia capital sentencing process, 
from the prosecutor who sought the 
death penalty and the jury that im- 
posed the sentence, to the State it- 

. self that enacted the capital punish- 
ment statute and allows it to remain 
in effect despite its allegedly discrim- 
inatory application. We agree with 
the Court of Appeals, and every 
other court that has considered such 
a challenge that this claim must 

fail. | 

Sui A 
[1c, 6] Our analysis begins with 

U.S. SUPREME COURT REPORTS 
   

95 L Ed 2d 

the basic principle that a defendant 
who alleges an equal protection vio- 
lation has the burden of proving 
“the existence of purposeful discrim- 
ination.” Whitus v Georgia, 385 US 
545, 550, 17 L Ed 2d 599, 87 S Ct 
643 (1967). A corollary to this prin- 
ciple is that a criminal defendant 
must prove that the purposeful dis- 
crimination “had a discriminatory 
effect” on him. Wayte v United 
States, 470 US 598, 608, 84 L Ed 2d 
547, 105 S Ct 1524 (1985). Thus, to 
prevail under the Equal Protection 
Clause, McCleskey must prove that 
the decisionmakers in his case acted 
with discriminatory purpose. He 
offers no evidence specific to his own 
case that would support an inference 
that racial considerations played a 
part in his sentence. Instead, he re- 
lies solely on the Baldus study." 
McCleskey argues that the Baldus 

  

8. [5b] Although McCleskey has standing 
to claim that he suffers discrimination be- 

' cause of his own race, the State argues that 
he has no standing to contend that he was 
iscriminated against on the basis of his vic- 

tim’s race. While it is true that we are reluc- 
‘tant to recognize “standing to assert the 
rights of third persons,” Arlington Heights v 
Metropolitan Housing Dev. Corp., 429 US 252, 
263, 50 L Ed 2d 450, 97 S Ct 555 (1977), this 
does not ‘appear to be the nature of McCles- 
key’s claim. He does not seek to assert some 
right of his victim, or the rights of black 
murder victims in general. Rather, McCleskey 
argues that application of the State’s statute 
has created a classification that is “an irra- 
tional exercise of governmental power,” Brief 
for Petitioner 41, because it is not “necessary 
to the accomplishment of some permissible 
‘state objective.” Loving v Virginia, 388 US 1, 
11, 18 L Ed 2d 1010, 87 S Ct 1817 (1967). See 
McGowan v Maryland, 366 US 420, 425, 6 L 
Ed 2d 393, 81 S Ct 1101, 17 Ohio Ops 2d 151 

.(1961)' (statutory classification cannot be 
“wholly irrelevant to the achievement of the 
'State’s objective”). It would violate the Equal 
Protection Clause for a State to base enforce- 
ment of its criminal laws on “an unjustifiable 

278 

standard such as race, religion, or other arbi- 
trary classification.” Oyler v Boles, 368 US 
448, 456, 7 L Ed 2d 446, 82 S Ct 501 (1962). 
See Cleveland Bd. of Ed. v Lafleur, 414 US 
632, 6562-653, 39 L Ed 2d 52, 94 S Ct 791, 67 
Ohio Ops 2d 126 (1974) (Powell, J., concur- 
ring). Because McCleskey raises such a claim, 
he has standing. 

9. See, e.g., Shaw v Martin, 733 F2d 304, 
311-314 (CA4), cert denied, 469 US 873, 83 L 
Ed 2d 159, 105 S Ct 230 (1984); Adams v 
Wainwright, 709 F2d 1443 (CA11 1983) (per 
curiam), cert denied, 464 US 1063, 79 L Ed 2d 
203, 104 S Ct 745 (1984); Smith v Balkcom, 
660 F2d 573, 584-585 (CA5 Unit B 1981), 
modified, 671 F2d 858, 859-860 (CA5) (per 
curiam), cert denied, 459 US 882, 74 L Ed 2d 
148, 103 S Ct 181 (1982); Spinkellink v Wain- 
wright, 578 F2d 582, 612-616 (CA5 1978), cert 
denied, 440 US 976, 59 L Ed 2d 796, 99 S Ct 
1548 (1979). 

10. See Arlington Heights v Metropolitan 
Housing Dev. Corp., supra, at 265, 50 L Ed 2d 
450, 97 S Ct 555; Washington v Davis, 426 US 
229, 240, 48 L Ed 2d 597, 96 S Ct 2040 (1976). 

11. McCleskey’s expert testified: 
“Models that are developed talk about the 

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study compels an inference that his 
sentence rests on purposeful discrim- 
ination. McCleskey’s claim that 
these statistics are sufficient proof of 
discrimination, without regard to 
the facts of a particular case, would 

extend to all capital cases in Geor- 
gia, at least where the victim was 
white and the defendant is black. 

[7] The Court has accepted statis- 
tics as proof of intent to discriminate 
in certain limited contexts. First, 

this Court has accepted statistical 
disparities as proof of an equal pro- 
tection violation in the selection of 
the jury venire in a particular dis- 
trict. Although statistical proof nor- 
mally must present a “stark” pat- 
tern to be accepted as the sole proof 
of discriminatory intent under the 
Constitution, Arlington Heights v 
Metropolitan Housing Dev. Corp. 
429 US 252, 266, 50 L Ed 2d 450, 97 
S Ct 555 (1977), “[blecause of the 
nature of the jury-selection task, 

McCLESKEY v KEMP 
95 L Ed 2d 262 

. we have permitted a finding of 
constitutional violation even when 
the statistical pattern does not ap- 
proach [such] extremes.” Id., at 266, 
n 13, 50 L Ed 2d 450, 97 S Ct 555.13 
Second, this Court has accepted sta- 
tistics in the form of multiple regres- 
sion analysis to prove statutory vio- 
lations under Title VII. Bazemore v 
Friday, 478 US ——, —, 92 L Ed 
2d 315, 106 S Ct 3000 (1986) (opinion 
of Brennan, J., concurring in part). 

[1d] But the nature of the capital 
sentencing decision, and the rela- 
tionship of the statistics to that deci- 
sion, are fundamentally different 
from the corresponding elements in 
the venire-selection or Title VII 
cases. Most importantly, each partic- 
ular decision to impose the death 
penalty is made by a petit jury se- 
lected from a properly constituted 
venire. Each jury is unique in its 
composition, and the Constitution 

requires that its decision rest on 
  

    

effect on the average. They do not depict the 
experience of a single individual. What they 

say, for example, [is] 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.” 580 

F Supp, at 372. 

12. Gomillion v Lightfoot, 364 US 339, 5 L 
Ed 2d 110, 81 S Ct 125 (1960), and Yick Wo v 
Hopkins, 118 US 356, 30 L Ed 220, 6 S Ct 
1064 (1886), are examples of those rare cases 

in which a statistical pattern of discrimina- 
tory impact demonstrated a constitutional 
violation. In Gomillion, a state legislature 
violated the Fifteenth Amendment by altering 
the boundaries of a particular city “from a 
square to an uncouth twenty-eight-sided 
figure.” 364 US, at 340, 5 L Ed 2d 110, 81 S 
Ct 125. The alterations excluded 395 of 400 

black voters without excluding a single white 
voter. In Yick Wo, an ordinance prohibited 
operation of 310 laundries that were housed 
in wooden buildings, but allowed such laun- 
dries to resume operations if the operator 

secured a permit from the government. When 
laundry operators applied for permits to re- 
sume operation, all but one of the white 
applicants received permits, but none of the 
over 200 Chinese applicants were successful. 
In those cases, the Court found the statistical 

disparities “to warrant and require,” Yick Wo 
v Hopkins, supra, at 373, 30 L Ed 2d 220, 6 S 
Ct 1064, a “conclusion [that was] irresistible, 
tantamount for all practical purposes to a 
mathematical demonstration,” Gomillion v 

Lightfoot, supra, at 341, 5 L. Ed 2d 110, 81 S 
Ct 125, that the State acted with a discrimi- 

natory purpose. 

13. See, e.g., Castaneda v Partida, 430 US 
482, 495, 51 L Ed 2d 498, 97 S Ct 1272 (1977) 
(2 to 1 disparity between Mexican-Americans 
in county population and those summoned for 
grand jury duty); Turner v Fouche, 396 US 
346, 359, 24 L Ed 2d 567, 90 S Ct 532 (1970) 
(1.6 to 1 disparity between blacks in county 

population and those on grand jury lists); 
Whitus v Georgia, 385 US 545, 562, 17 L Ed 
2d 599, 87 S Ct 643 (1967) (3 to 1 disparity 
between eligible blacks in county and blacks 

on grand jury venire). 

279  



1 

| 

   
| 

| 

1 

consideration of innumerable factors 
that vary according to the character- 
istics of the individual defendant 
and the facts of the particular capi- 
tal offense. See Hitchcock v Dugger, 
post, at , 95 L Ed 2d 347; Lock- 
ett v Ohio, 438 US 586, 602-605, 57 L 
"Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 
3d 26 (1978) (plurality opinion of 
Burger, C.J.). Thus, the application 
of an inference drawn from the gen- 
eral statistics to a specific decision in 
a trial and sentencing simply is not 
comparable to the application of an 
inference drawn from general statis- 
tics to a specific venire-selection or 
Title VII case. In those cases, the 
statistics relate to fewer entities, 
‘and fewer variables are relevant to 

  

U.S. SUPREME COURT REPORTS     95 L Ed 2d 

the challenged decisions. 

[8, 9a, 10a] Another important 
difference between the cases in 
which we have accepted statistics as 
proof of discriminatory intent and 
this case is that, in the venire-selec- 
tion and Title VII contexts, the deci- 
sionmaker has an opportunity to ex- 
plain the statistical disparity. See 
Whitus v Georgia, supra, at 552, 17 
L Ed 2d 599, 87 S Ct 643; Texas 
Dept. of Community Affairs v Bur- 
dine, 450 US 248, 254, 67 L Ed 2d 
207, 101 S Ct 1089 (1981); McDonnell 
Douglas Corp. v Green, 411 US 792, 
802, 36 L. Ed 2d 668, 93 S Ct 1817 
(1973). Here, the State has no practi- 
cal opportunity to rebut the Baldus 
study. “[Clontrolling considerations 

  

14. In venire-selection cases, the factors 
that may be considered are limited, usually 
by state statute. See Castaneda v Partida, 430 
US, at 485, 51 L Ed 2d 498, 97 S Ct 1272 ("A 
grand juror must be a citizen of Texas and of 
the county, be a qualified voter in the county, 

i 1 be ‘of sound mind and good moral character,’ 
be literate, have no prior felony conviction, 
and be under pending indictment ‘or other 
legal accusation for theft or of any felony.’ ”), 
Turner v Fouche, 396 US, at 354, 24 L Ed 2d 
567, 90 8 Ct 532 (jury commissioners may 
exclude any not ‘upright’ and ‘intelligent’ 
from grand jury service); Whitus v Georgia, 
385 UB, at 548, 17 L Ed 2d 599, 87 S Ct 643 
(same). These considerations are uniform for 

oo all potential jurors, and although some fac- 
tors may be said to be subjective, they are 

limited and, to a great degree, objectively 
verifiable. While employment decisions may 

, involve a number of relevant variables, these 

variables are to a great extent uniform for all 
employees because they must have a reason- 
able relationship to the employee’s qualifica- 
tions to perform the particular job at issue. 

' Identifiable qualifications for a single job pro- 
vide' a common standard by which to assess 
each employee. In contrast, a capital sentenc- 
ing jury may consider any factor relevant to 
the defendant’s background, character, and 

' the offense. See Eddings v Oklahoma, 4565 US 
104, 112, 71 L Ed 2d 1, 102 S Ct 869 (1982). 

. There is no common standard by which to 
evaluate all defendants who have or have not 
received the death penalty. 

250 

15. We refer here not to the number of 
entities involved in any particular decision, 
but to the number of entities whose decisions 

necessarily are reflected in a statistical dis- 
play such as the Baldus study. The decisions 
of a jury commission or of an employer over 
time are fairly attributable to the commission 
or the employer. Therefore, an unexplained 

statistical discrepancy can be said to indicate 
a consistent policy of the decisionmaker. The 

Baldus study seeks to deduce a state “policy” 
by studying the combined effects of the deci- 
sions of hundreds of juries that are unique in 
their composition. It is incomparably more 

difficult to deduce a consistent policy by 
studying the decisions of these many unique 
entities. It is also questionable whether any 
consistent policy can be derived by studying 
the decisions of prosecutors. The District At-. 
torney is elected by the voters in a particular 
county. See Ga Const, Art 6, §8, 1. Since 

decisions whether to prosecute and what to 
charge necessarily are individualized and in- 
volve infinite factual variations, coordination 
among DA offices across a State would be 
relatively meaningless. Thus, any inference 
from statewide statistics to a prosecutorial 

“policy” is of doubtful relevance. Moreover, 

the statistics in Fulton County alone repre- 
sent the disposition of far fewer cases than 

the state-wide statistics. Even assuming the 

statistical validity of the Baldus study as a 
whole, the weight to be given the results 

gleaned from this small sample is limited. 

     



   

  

  

of . . . public policy,” McDonald v 
Pless, 238 US 264, 267, 59 L Ed 
1300, 35 S Ct 783 (1915), dictate that 
jurors “cannot be called . . . to tes- 
tify to the motives and influences 
that led to their verdict.” Chicago, B. 
& Q. R. Co. v Babcock, 204 US 585, 
593, 51 L Ed 636, 27 S Ct 326 (1907). 
Similarly, the policy considerations 
behind a prosecutor’s traditionally 
“wide discretion”!® suggest the im- 
propriety of our requiring prose- 
cutors to defend their decisions to 
seek death penalties, “often years 
after they were made.” See Imbler 
v. Pachtman, 424 US 409, 425-426, 
47 L Ed 2d 128, 96 S Ct 984 (1976).18 
Moreover, absent far stronger proof, 
it is unnecessary to seek such a 
rebuttal, because a legitimate and 
unchallenged explanation for the de- 
cision is apparent from the record: 
McCleskey committed an act for 
which the United States Constitu- 
tion and Georgia laws permit imposi- 
tion of the death penalty.!® 

McCLESKEY v KEMP 
95 L Ed 2d 262 

[1e] Finally, McCleskey’s statisti- 
cal proffer must be viewed in the 
context of his challenge. McCleskey 
challenges decisions at the heart of 
the State’s criminal justice system. 
“[O]ne of society’s most basic tasks is 
that of protecting the lives of its 
citizens and one of the most basic 
ways in which it achieves the task is 
through criminal laws against mur- 
der.” Gregg v Georgia, 428 US 153, 
226, 49 L Ed 2d 859, 96 S Ct 2909 
(1976) (White, J., concurring). Imple- 

mentation of these laws necessarily 
requires discretionary judgments. 
Because discretion is essential to the 
criminal justice process, we would 
demand exceptionally clear proof be- 
fore we would infer that the discre- 
tion has been abused. The unique 
nature of the decisions at issue in 
this case also counsel against adopt- 
ing such an inference from the dis- 
parities indicated by the Baldus 
study. Accordingly, we hold that the 
Baldus study is clearly insufficient to 
support an inference that any of the 

  

16. See Wayte v United States, 470 US 598, 
607, 84 L Ed 2d 547, 1056 S Ct 1524 (1985); 
United States v Goodwin, 457 US 368, 380, n 
11, 73 L Ed 2d 74, 102 S Ct 2485 (1982); 
Bordenkircher v Hayes, 434 US 357, 365, 54 L 
Ed 2d 604, 98 S Ct 663 (1978). See also ABA 
Standards for Criminal Justice 3-3.8—3-3.9 
(2d ed. 1982). 

17. Requiring a prosecutor to rebut a study 
that analyzes the past conduct of scores of 
prosecutors is quite different from requiring a 
prosecutor to rebut a contemporaneous chal- 
lenge to his own acts. See Batson v Kentucky, 
476 US —, 90 L Ed 2d 69, 106 S Ct 1712 
(1986). 

18. [9b] Although Imbler was decided in 
the context of § 1983 damage actions brought 
against prosecutors, the considerations that 
led the Court to hold that a prosecutor should 
not be required to explain his decisions apply 
in this case as well: “if the prosecutor could 
be made to answer in court each time . . . a 
person charged him with wrongdoing, his en- 
ergy and attention would be diverted from the 
pressing duty of enforcing the criminal law.” 

424 US, at 425, 47 L Ed 2d 128, 96 S Ct 984. 
Our refusal to require that the prosecutor 
provide an explanation for his decisions in 

this case is completely consistent with this 
Court’s longstanding precedents that hold 

that a prosecutor need not explain his deci- 

sions unless the criminal defendant presents a 

prima facie case of unconstitutional conduct 

with respect to his case. See, e.g., Batson v 

Kentucky, supra; Wayte v United States, su- 
pra. 

19. [10b] In his dissent, Justice Blackmun 
misreads this statement. See post, at ——, 95 
L Ed 2d ——. We do not suggest that McCles- 

key’s conviction and sentencing by a jury 
bears on the prosecutor’s motivation. Rather, 
the fact that the United States Constitution 
and the laws of Georgia authorized the prose- 

cutor to seek the death penalty under the 

circumstances of this case is a relevant factor 

to be weighed in determining whether the 
Baldus study demonstrates a constitutionally 

significant risk that this decision was moti- 

vated by racial considerations. 

281



   
decisionmakers in McCleskey’s case 

with discriminatory purpose. 

'B 

' [2b, 11a] McCleskey also suggests 
"that the Baldus study proves that 
the State as a whole has acted with 
a ' discriminatory purpose. He ap- 
pears to argue that the State has 
‘violated the Equal Protection Clause 
by adopting the capital punishment 
statute and allowing it to remain in 
force despite its allegedly discrimina- 
‘tory application. But “ ‘[d]iscrimina- 
tory purpose’ . . . implies more than 
intent as volition’ or intent as aware- 

. ness of consequences. It implies that 
the decisionmaker, in this case a 
state legislature, selected or reaf- 
firmed a particular course of action 
at least in part ‘because of,’ not 
merely ‘in spite of,’ its adverse 
effects upon an identifiable group.” 
Personnel Administrator of Massa- 
chusetts v Feeney, 442 US 256, 279, 

. 60 L Ed 2d 870, 99 S Ct 2282 (1979) 
(footnote and citation omitted). See 
‘Wayte v United States, 470 US 598, 
608-609, 84 L Ed 2d 547, 105 S Ct 

1524 (1985). For this claim to pre- 
' vail, McCleskey would have to prove 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

that the Georgia Legislature enacted 
or maintained the death penalty 
statute because of an anticipated 
racially discriminatory effect. In 
Gregg v Georgia, 428 US 153, 49 L 
Ed 2d 859, 96 S Ct 2909 (1976), this 
Court found that the Georgia capital 
sentencing system could operate in a 
fair and neutral manner. There was 
no evidence then, and there is none 
now, that the Georgia Legislature 
enacted the capital punishment stat- 
ute to further a racially discrimina- 
tory purpose. 

[2c] Nor has McCleskey demon- 
strated that the legislature main- 
tains the capital punishment statute 
because of the racially disproportion- 
ate impact suggested by the Baldus 
study. As legislatures necessarily 
have wide discretion in the choice of 
criminal laws and penalties, and as 
there were legitimate reasons for the 
Georgia Legislature to adopt and 
maintain capital punishment, see 
Gregg v Georgia, supra, at 183-187, 
49 L Ed 2d 859, 96 S Ct 2909 (joint 
opinion of Stewart, Powell, and Ste- 
vens, JJ.), we will not infer a dis- 
criminatory purpose on the part of 
the State of Georgia.®® Accordingly, 

  

"120, [1b] ‘McCleskey relies on “historical 
evidence” to support his claim of purposeful 
discrimination by the State. This evidence 

' focuses on Georgia laws in force during and 
just after the Civil War. Of course, the “his- 

". torical background of the decision is one evi- 
dentiary source” for proof of intentional dis- 
crimination. Arlington Heights v Metropoli- 
tan ‘Housing Dev. Corp., 429 US, at 267, 50 L 
Ed 2d 460, 97 S Ct 555. But unless historical 

!' evidence is reasonably contemporaneous with 
the challenged decision, it has little probative 
value. Cf. Hunter v Underwood, 471 US 222, 
228-228, 85 L Ed 2d 222, 105 S Ct 1916 (1985) 

' (relying on legislative history to demonstrate 
discriminatory motivation behind state stat- 
ute). Although the history of racial discrimi- 
nation in this country is undeniable, we can- 
not accept official actions taken long ago as 

282 

evidence of current intent. 

21. Justice Blackmun suggests that our “re- 
liance on legitimate interests underlying the 
Georgia Legislature’s enactment of its capital 
punishment statute is . . . inappropriate [be- 
cause] it has no relevance in a case dealing 
with a challenge to the Georgia capital sen- 
tencing system as applied in McCleskey’s 
case.” Post, at ——, 95 LL. Ed 2d —— (empha- 
sis in original). As the dissent suggests, this 
evidence is not particularly probative when 
assessing the application of Georgia's capital- 
punishment system through the actions of 
prosecutors and juries, as we did in Part II-A, 
supra. But that is not the challenge that we 
are addressing here. As indicated above, the 
question we are addressing is whether the 
legislature maintains its capital punishment 
statute because of the racially disproportion- 

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we reject McCleskey’s equal protec- 
tion claims. 

III 

[3b, 12a] McCleskey also argues 
that the Baldus study demonstrates 
that the Georgia capital sentencing 
system violates the Eighth Amend- 
ment.” We begin our analysis of this 
claim by reviewing the restrictions 
on death sentences established by 
our prior decisions under that 
Amendment. 

A 

The Eighth Amendment prohibits 
infliction of “cruel and unusual pun- 
ishments.” This Court’s early Eighth 
Amendment cases examined only 
the “particular methods of execution 
to determine whether they were too 
cruel to pass constitutional muster.” 
Gregg v Georgia, supra, at 170, 49 L 
Ed 2d 859, 96 S Ct 2909. See In re 
Kemmler, 136 US 436, 34 L. Ed 519, 
10 S Ct 930 (1890) (electrocution); 
Wilkerson v Utah, 99 US 130, 25 L 
Ed 345 (1879) (public shooting). Sub- 
sequently, the Court recognized that 
the constitutional prohibition 
against cruel and unusual punish- 
ments “is not fastened to the obso- 
lete but may acquire meaning as 
public opinion becomes enlightened 
by a humane justice.” Weems v 
United States, 217 US 349, 378, 54 L 
Ed 793, 30 S Ct 544 (1910). In 
Weems, the Court identified a second 
principle inherent in the Eighth 
Amendment, “that punishment for 
crime should be graduated and pro- 

McCLESKEY v KEMP 
95 L Ed 2d 262 

portioned to offense.” Id., at 367, 54 
L Ed 798, 30 S Ct 544. 

Chief Justice Warren, writing for 
the plurality in Trop v Dulles, 356 
US 86, 99, 2 L Ed 2d 630, 78 S Ct 
590 (1968), acknowledged the consti- 
tutionality of capital punishment. In 
his view, the “basic concept underly- 
ing the Eighth Amendment” in this 
area is that the penalty must accord 
with “the dignity of man.” Id. at 
100, 2 LL Ed 2d 630, 78 S Ct 590. In 
applying this mandate, we have 
been guided by his statement that 
“tlhe Amendment must draw its 
meaning from the evolving stan- 
dards of decency that mark the prog- 
ress of a maturing society.” Id., at 
101, 2 L Ed 2d 630, 78 S Ct 590. 
Thus, our constitutional decisions 
have been informed by ‘“contempo- 
rary values concerning the infliction 
of a challenged sanction,” Gregg v 
Georgia, supra, at 173, 49 L Ed 2d 
869, 96 S Ct 2909. In assessing con- 
temporary values, we have eschewed 
subjective judgment, and instead 
have sought to ascertain “objective 
indicia that reflect the public atti- 
tude toward a given sanction.” Ibid. 
First among these indicia are the 
decisions of state legislatures, “be- 
cause the . . . legislative judgment 
weighs heavily in ascertaining” con- 
temporary standards, id., at 175, 49 
L Ed 2d 859, 96 S Ct 2909. We also 
have been guided by the sentencing 
decisions of juries, because they are 
“a significant and reliable objective 
index of contemporary values,” id., 
at 181, 49 L Ed 2d 859, 96 S Ct 2909. 

  

ate impact suggested by the Baldus study. 
McCleskey has introduced no evidence to sup- 
port this claim. It is entirely appropriate to 
rely on the legislature’s legitimate reasons for 
enacting and maintaining a capital punish- 
ment statute to address a challenge to the 
legislature’s intent. 

22. [12b] The Eighth Amendment applies 
to the States through the Due Process Clause 
of the Fourteenth Amendment. Robinson v 

California, 370 US 660, 667, 8 L. Ed 2d 758, 82 
S Ct 1417 (1962).



1 

" 

  

Most of our recent decisions as to 

the constitutionality of the death 

penalty for a particular crime have 

rested on such an examination of 

contemporary values. E. g., Enmund 

v Florida, 458 US 782, 789-796, 73 L 

Ed 2d 1140, 102 S Ct 3368 (1982) 

' (felony murder); Coker Vv Georgia, 

| 

' 433 US 584, 592-597, 53 L Ed 2d 982, 

97 S Ct oot (1977) (plurality opin- 

ion. of White, J.) (rape); Gregg Vv 

Georgia, supra, at 179-182, 49 L Ed 

ne 2d 859, 96 S Ct 2909 (murder). 

rf 

| 

B 

Two principal decisions guide our 

resolution of McCleskey’s Eighth 

Amendment claim. In Furman Vv 

Georgia, 408 US 238, 33 L Ed 2d 

346, 92'S Ct 2726 (1972), the Court 

concluded that the death penalty 

was so irrationally imposed that any 

particular death sentence could be 

presumed excessive. Under the stat- 

utes at issue in Furman, there was 

no basis for determining in any par- 

ticular case whether the penalty was 

proportionate to the crime: “the 

death penalty [was] exacted with 

great infrequency even for the most 

atrocious crimes and . there [was] 

no meaningful basis for distinguish- 

. ing the few cases in which it [was] 

imposed from the many cases in 

which it [was] not.” 1d., at 313,33 L 

Ed 2d 346, 92 § Ct 2726 (White, J. 

concurring). 

In Gregg, the Court specifically 

addressed the question left open in 

' Furman—whether the punishment 

of death for murder is “under all 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

in violation of the Eighth and Four- 

teenth Amendments of the Constitu- 

tion.” 428 US, at 168, 49 L Ed 2d 

859, 96 S Ct 2909. We noted that the 

imposition of the 

the crime of murder ° 

history of acceptance both in the 

United States and in England.” 1d, 

at 176, 49 L Ed 2d 346, 92 S Ct 2726. 

“The most marked indication of soci- 

ety’s endorsement of the death pen- 

alty for murder [was] the legislative 

response to Furman.” Id., at 179, 49 

L Ed 2d 859, 96 S Ct 2909. During 

the 4-year period between Furman 

and Gregg, at least 35 states had 

reenacted the death penalty, and 

Congress had authorized the penalty 

for aircraft piracy. 428 US, at 179- 

180, 49 L Ed 2d 859, 96 S Ct 2909.% 

The “actions of juries” were “fully 

compatible with the legislative judg- 

ments.” 1d., at 182, 49 L Ed 2d 859, 

96 S Ct 2909. We noted that any 

punishment might be unconstitu- 

tionally severe if inflicted without 

penological justification, but con- 

cluded: 

“Considerations of federalism, as 

well as respect for the ability of a 

legislature to evaluate, in terms of 

its particular State, the moral con- 

sensus concerning the death pen- 

alty and its social utility as a sanc- 

tion, require us to conclude, in the 

absence of more convincing evi 

dence, that the infliction of death 

as a punishment for murder is not 

without justification and thus is 

not unconstitutionally severe.” 1d, 

at 186-187, 49 L Ed 2d 859, 96 S 

Ct 2909. 

    
  

  

circumstances, ‘cruel and unusual’ 

23. Thirty-seven States now have capital 

punishment statutes 

our decision in Furman. Thirty-three of these 

\ States have imposed 

the new, statutes. NAACP Legal Defense & 

Educational Fund, Death Row, USA 1 (Oct. 1, 

284 

1986). A federal statute, amended in relevant 

part in 1974, authorizes the death penalty for 

aircraft piracy in which a death occurs. 49 

USC App §14723)X1)b) 

§ 1472(iX1)b)}. 

[49 USCS Appx i 

 



  

McCLESKEY v KEMP 
95 L Ed 2d 262 

5 | The second question before the cretion still exists, ‘the discretion to 

  

5 Court in Gregg was the constitution- be exercised is controlled by clear 4 2 ality of the particular procedures and objective standards so as to 
i i embodied in the Georgia capital pun- produce non-discriminatory appli- 
T ] ishment statute. We explained the cation.’ ” 428 US, at 197-198, 49 g i fundamental principle of Furman, L Ed 2d 859, 96 S Ct 2909 (quoting e that “where discretion is afforded a Coley v State, 231 Ga 829, 834, 204 ES gE sentencing body on a matter so SE2d 612, 615 (1974)). Moreover, the 6. 1 grave as the determination of Georgia system adds “an important g 1 whether a human life should be additional safeguard against arbi- n- § taken or spared, that discretion trariness and caprice” in a provision ve 4 must be suitably directed and lim. for automatic appeal of a death sen- A9 4 ited 50 as to minimize the risk of tence to the State Supreme Court. ng 4 wholly arbitrary and Capricious ac- 428 US, at 198, 49 L Ed 2d 859, 96 S an j tion.” 428 US, at 189, 49 I Ed 2d Ct 2909. The statute requires that ad 859, 96 S Ct 2909. Numerous fea- court to review each sentence to nd id tures of the then new Georgia stat- determine whether it was imposed ty 1 ute met the concerns articulated in under the influence of passion or 79- 4 Furman. The Georgia system bifur- prejudice, whether the evidence sup- 28 1 cates guilt and sentencing proceed- ports the jury’s finding of a statutory Aly i ings so that the jury can receive all aggravating circumstance, and dg- relevant information for sentencing whether the sentence is dispropor- 59, g without the risk that evidence irrele- tionate to sentences imposed in gen- Any La vant to the defendant’s guilt will erally similar murder cases. To aid itu- EO influence the jury’s consideration of the court’s review, the trial judge out | that issue. The statute narrows the answers a questionnaire about the on- Fo class of murders subject to the death trial, including detailed questions as 0 penalty to cases in which the jury to “the quality of the defendant’s @ finds at least one statutory aggravat- representation [and] whether race 

    

    

      

        
  

as ing circumstance beyond a reason- played a role in the trial” Id., at of a able doubt. Conversely, it allows the 167, 49 L Ed 2d 859, 96 S Ct 2909. s of defendant to introduce any relevant con- ; mitigating evidence that might influ- C pen- 8 ence the Jury not to impose a death anc- #8 sentence. See 428 US, at 163-164, 49 [13a] In the cases decided after the WF L Ed 2d 859, 96 S Ct 2909. The Gregg, the Court has imposed a evi- WE procedures also require a particular- number of requirements on the capi- eath ized inquiry into * ‘the circum- tal sentencing process to ensure that s not stances of the offense together with capital sentencing decisions rest on 18 18 the character and propensities of the the individualized inquiry contem- "1d, of offender.’ ” Id., at 189, 49 I Ed 2d plated in Gregg. In Woodson v North 96 S 869, 96 S Ct 2909 (quoting Pennsyl- Carolina, 428 US 280, 49 L Ed 2d : vania ex rel. Sullivan v Ashe, 302 944, 96 S Ct 2978 (1976), we invali- pesmi US 51, 55, 82 I. Ed 43, 58 S Ct 59 dated a mandatory capital sentenc- event : (1937). Thus, “while some Jury dis- ing system, finding that the “respect ity tor 

te 4 24. We have noted that the Georgia statute 13, 1961). Gregg v Georgia, 428 US, at 194, n generally follows the standards of the ALI 44, 49 L Ed 2d 859, 96 S Ct 2909. Model Penal Code § 201.6 (Prop Off Draft No. 

285 

 



| 

     

' ment,” 

for humanity underlying the Eighth 
Amendment requires consideration 
of the character and record of the 
individual offender and the circum- 
stances of the particular offense as a 
constitutionally indispensable part 
of the process of inflicting the pen- 
alty of death.” Id., at 304, 49 L Ed 
2d 944, 96 S Ct 2978 (plurality opin- 
ion of Stewart, Powell, and Stevens, 

dd.) (citation omitted). Similarly, a 
| State must “narrow the class of 
‘murderers subject to capital punish- 

Gregg v Georgia, supra, at 
196, 49 L Ed 2d 859, 96 S Ct 2909, 

. by, providing “specific and detailed 
" guidance” to the sentencer.? Proffitt 

v Florida, 428 US 242, 253, 49 L Ed 
2d 913, 96 S Ct 2960 (1976) (joint 
opinion of Stewart, Powell, and Ste- 

- vens, JdJ.). 

' [14a] In contrast to the carefully 
defined standards that must narrow 

a sentencer’s discretion to impose 
the death sentence, the Constitution 
limits a State’s ability to narrow a 
“sentencer’s discretion to consider rel- 

‘evant evidence that might cause it 
to decline to impose the death sen- 
tence.? “[Tlhe sentencer . .. [can- 
not] be precluded from considering, 
as a mitigating factor, any aspect of 
a defendant’s character or record 

U.S. SUPREME COURT REPORTS    95 L Ed 2d 

and any of the circumstances of the 
offense that the defendant proffers 
as a basis for a sentence less than 
death.” Lockett v Ohio, 438 US, at 
604, 57 L Ed 2d 973, 98 S Ct 2954, 9 
Ohio Ops 3d 26 (plurality opinion of 
Burger, C.J.) (emphasis in original; 
footnote omitted). See Skipper v 
South Carolina, 476 US ——, 90 L 
Ed 2d 1, 106 S Ct 1669 (1986). Any 
exclusion of the “compassionate or 
mitigating factors stemming from 
the diverse frailties of humankind” 
that are relevant to the sentencer’s 
decision would fail to treat all per- 
sons as “uniquely individual human 
beings.” Woodson v North Carolina, 
supra, at 304, 49 L Ed 2d 944, 96 S 

Ct 2978. 

Although our constitutional in- 
quiry has centered on the proce- 
dures by which a death sentence is 
imposed, we have not stopped at the 
face of a statute, but have probed 
the application of statutes to partic- 
ular cases. For example, in Godfrey 
v Georgia, 446 US 420, 64 L Ed 2d 
398, 100 S Ct 1759 (1980), the Court 
invalidated a Georgia Supreme 
Court interpretation of the statutory 
aggravating circumstance that the 
murder be “outrageously or wan- 
tonly vile, horrible or inhuman in 

  

25. Although the Court has recognized that 
jury sentencing in a capital case “can perform 
an important societal function,” Proffitt v 

. Florida, 428 US 242, 252, 49 L Ed 2d 913, 96 
S Ct 2960 (1976) (joint opinion of Stewart, 

, Powell, and Stevens, JJ.) (citing Witherspoon 
'v Illinois, 391 US 510, 519, n 15, 20 L Ed 2d 
776, 88 S Ct 1770, 46 Ohio Ops 2d 368 (1968)), 
it “has never suggested. that jury sentencing 
[in a capital case] is constitutionally re- 
quired.” 428 US, at 252, 49 L Ed 2d 913, 96 S 
Ct 2960. Under the Florida capital punish- 
ment system at issue in Proffitt, the jury’s 

+ verdict is only advisory. The trial judge deter- 
mines the final sentence. Unlike in Georgia, a 

' Florida, trial judge may impose the death 
penalty even when the jury recommends oth- 

| 

286 
) 

erwise. In Proffitt, we found that the Florida 
capital-sentencing procedures adequately 
channeled the trial judge’s discretion so that 

the Florida system, like the Georgia system, 
on its face “satisfie[d] the constitutional defi- 
ciencies identified in Furman.” Id., at 253, 49 
L Ed 2d 913, 96 S Ct 2960. 

26. We have not yet decided whether the 
Constitution permits a mandatory death pen- 

alty in certain narrowly defined circum- 

stances, such as when an inmate serving a 
life sentence without possibility of parole com- 

mits murder. See Shuman v Wolff, 791 F2d 
788 (CA9 1986), cert granted sub nom Sumner 

v Shuman, 479 US ——, 93 L Ed 2d 381, 107 
S Ct 431 (1986). 

  

  
 



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McCLESKEY v KEMP 
95 L Ed 2d 262 

that it involved torture, depravity of 
mind, or an aggravated battery to 
the victim.” Ga Code § 27-2534.1(bX7) 
(1978).# Although that court had ar- 
ticulated an adequate limiting defini- 
tion of this phrase, we concluded 

that its interpretation in Godfrey 
was so broad that it may have viti- 
ated the role of the aggravating cir- 
cumstance in guiding the sentencing 
jury’s discretion. 

Finally, where the objective indi- 
cia of community values have dem- 
onstrated a consensus that the death 
penalty is disproportionate as ap- 
plied to a certain class of cases, we 
have established substantive limita- 
tions on its application. In Coker v 
Georgia, 433 US 584, 53 L Ed 2d 
982, 97 S Ct 2861 (1977), the Court 
held that a State may not constitu- 
tionally sentence an individual to 
death for the rape of an adult 
woman. In Enmund v Florida, 458 

US 782, 73 L Ed 2d 1140, 102 S Ct 
3368 (1982), the Court prohibited 
imposition of the death penalty on a 
defendant convicted of felony mur- 
der absent a showing that the defen- 
dant possessed a sufficiently culpable 
mental state. Most recently, in Ford 
v Wainwright, 477 US ——, 91 L Ed 

2d 335, 106 S Ct 2595 (1986), we 
prohibited execution of prisoners 
who are insane. 

D 

[13b, 14b] In sum, our decisions 
since Furman have identified a con- 
stitutionally permissible range of 
discretion in imposing the death 
penalty. First, there is a required 
threshold below which the death 
penalty cannot be imposed. In this 
context, the State must establish ra- 

tional criteria that narrow the deci- 
sionmaker’s judgment as to whether 
the circumstances of a particular 
defendant’s case meet the threshold. 
Moreover, a societal consensus that 
the death penalty is disproportionate 
to a particular offense prevents a 
State from imposing the death pen- 
alty for that offense. Second, States 
cannot limit the sentencer’s consid- 
eration of any relevant circumstance 
that could cause it to decline to 
impose the penalty. In this respect, 
the State cannot channel the sen- 
tencer’s discretion, but must allow it 
to consider any relevant information 
offered by the defendant. 

IV 

A 

[15, 16a] In light of our precedents 
under the Eighth Amendment, Mc- 
Cleskey cannot argue successfully 
that his sentence is “‘disproportion- 
ate to the crime in the traditional 
sense.” See Pulley v Harris, 465 US 
37, 43, 79 L Ed 2d 29, 104 S Ct 871 
(1984). He does not deny that he 
committed a murder in the course of 
a planned robbery, a crime for 
which this Court has determined 
that the death penalty constitution- 
ally may be imposed. Gregg v Geor- 
gia, 428 US, at 187, 49 L Ed 2d 859, 
96 S Ct 2909. His disproportionality 
claim “is of a different sort.” Pulley 
v Harris, supra, at 43, 79 L Ed 2d 
29, 104 S Ct 871. McCleskey argues 
that the sentence in his case is dis- 
proportionate to the sentences in 
other murder cases. 

[16b] On the one hand, he cannot 
base a constitutional claim on an 
argument that his case differs from 
other cases in which defendants did 

  

27. This section is substantially identical to the current Georgia Code Ann § 17-10-30(bX7) 
(1982), which is reprinted in n 3, supra. 

287



yo! 
] 

| 

   
receive the death penalty. On auto- 

. matic appeal, the Georgia Supreme 

Court found that McCleskey’s death 

sentence was not disproportionate to 

other death sentences imposed in 

the State. McCleskey v State, 245 Ga 

108, 263 SE2d 146 (1980). The court 

supported this conclusion with an 

appendix containing citations to 13 

cases involving generally similar 

murders. See Ga Code Ann § 17-10- 

35(e) (1982). Moreover, where the 

statutory procedures adequately 

channel the sentencer’s discretion, 

such proportionality review is not 

constitutionally required. Pulley v 

.' Harris, supra, at 50-51, 79 L Ed 2d 

> 29, 104 S Ct 871. 

| 

(] 

[16¢c, 17a] On the other hand, ab- 

sent a showing that the Georgia cap- 

ital punishment system operates in 

an arbitrary and capricious manner, 

McCleskey cannot prove a constitu- 

‘tional violation by demonstrating 

that other defendants who may be 

similarly situated did not receive the 

death penalty. In Gregg, the Court 

confronted the argument that “the 

opportunities for discretionary ac- 

tion that are inherent in the process- 

ing of any murder case under Geor- 

gia law,” Gregg v Georgia, supra, at 

199, 49 L Ed 2d 859, 96 S Ct 2909, 

specifically the opportunities for dis- 

cretionary leniency, rendered the 

‘capital sentences imposed arbitrary 

and capricious. We rejected this con- 
tention: 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

“The existence of these discretion- 

ary stages is not determinative of 

the issues before us. At each of 

these stages an actor in the crimi- 

nal justice system makes a deci 

sion which may remove a defen- 

dant from consideration as a can- 

didate for the death penalty. Fur- 

man, in contrast, dealt with the 

decision to impose the death sen- 

tence on a specific individual who 

had been convicted of a capital 

offense. Nothing in any of our 

cases suggests that the decision to 

afford an individual defendant 

mercy violates the Constitution. 

Furman held only that, in order to 

minimize the risk that the death 

penalty would be imposed on a 

capriciously selected group of of- 

fenders, the decision to impose it 

had to be guided by standards so 

that the sentencing authority 

would focus on the particularized 

circumstances of the crime and 

the defendant.” Ibid.? 

[16d] Because McCleskey’s sen- 

tence was imposed under Georgia 

sentencing procedures that focus dis- 

cretion “on the particularized nature 

of the crime and the particularized 

characteristics of the individual de- 

fendant,” id., at 206, 49 L Ed 2d 859, 

96 S Ct 2909, we lawfully may pre- 

sume that McCleskey’s death sen- 

tence was not “wantonly and freak- 

ishly” imposed, id., at 207, 49 L Ed 

2d 859, 96 S Ct 2909, and thus that 

  

28. [17b] The Constitution is not offended 

by inconsistency in results based on the objec- 

tive circumstances of the crime. Numerous 

legitimate factors may influence the outcome 

of a trial and a defendant’s ultimate sentence, 

even though they may be irrelevant to his 

actual guilt. If sufficient evidence to link a 

suspect to a crime cannot be found, he will 

not be charged. The capability of the responsi- 

ble law enforcement agency can vary widely. 

Also, the strength of the available evidence 

remains a variable throughout the criminal 

288 | 

justice process and may influence a prose- 

cutor’s decision to offer a plea bargain or to 

go to trial. Witness availability, credibility, 

and memory also influence the results of pros- 

ecutions. Finally, sentencing in state courts is 

generally discretionary, so a defendant's ulti- 

mate sentence necessarily will vary according 

to the judgment of the sentencing authority. 

The foregoing factors necessarily exist in var- 

ying degrees throughout our criminal justice 

system. 

  

    

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McCLESKEY v KEMP 
95 L Ed 2d 262 

the sentence is not disproportionate 
within any recognized meaning un- 
der the Eighth Amendment. 

B 

[3c] Although our decision in 
Gregg as to the facial validity of the 
Georgia capital punishment statute 
appears to foreclose McCleskey’s dis- 
proportionality argument, he further 
contends that the Georgia capital 
punishment system is arbitrary and 
capricious in application, and there- 
fore his sentence is excessive, be- 
cause racial considerations may in- 
fluence capital sentencing decisions 
in Georgia. We now address this 
claim. 

To evaluate McCleskey’s chal- 
lenge, we must examine exactly 
what the Baldus study may show. 
Even Professor Baldus does not con- 
tend that his statistics prove that 
race enters into any capital sentenc- 
ing decisions or that race was a 
factor in McCleskey’s particular 
case.® Statistics at most may show 
only a likelihood that a particular 

factor entered into some decisions. 
There is, of course, some risk of 
racial prejudice influencing a jury’s 
decision in a criminal case. There 
are similar risks that other kinds of 
prejudice will influence other crimi- 
nal trials. See infra, at : 
95 L Ed 2d 290-291. The question 
“is at what point that risk becomes 
constitutionally unacceptable,” 
Turner v Murray, 476 US ——, a 
n 8, 90 L Ed 2d 27, 106 S Ct 1683 
(1986). McCleskey asks us to accept 
the likelihood allegedly shown by 
the Baldus study as the constitu- 
tional measure of an unacceptable 
risk of racial prejudice influencing 
capital sentencing decisions. This we 
decline to do. 

    

[3d, 18a, 19a, 20a, 21a, 22a, 23a] 
Because of the risk that the factor of 
race may enter the criminal justice 
process, we have engaged in “un- 
ceasing efforts” to eradicate racial 
prejudice from our criminal Justice 
system. Batson v Kentucky, 476 US 
—, ——, 90 L Ed 2d 69, 106 S Ct 
1712 (1986).% Our efforts have been 

  

29. According to Professor Baldus: 
“McCleskey’s case falls in [a] grey area where 
- +. you would find the greatest likelihood 
that some inappropriate consideration may 
have come to bear on the decision. 

“In an analysis of this type, obviously one 
cannot say that we can say to a moral cer- 
tainty what it was that influenced the deci- 
sion. We can’t do that.” App 45-46. 

30. [18b] This Court has repeatedly stated 
that prosecutorial discretion cannot be exer- 
cised on the basis of race. Wayte v United 
States, 470 US 598, 608, 84 L Ed 2d 547, 106 
8 Ct 1524 (1985); United States v Batchelder, 
442 US 114, 60 L Ed 2d 765, 99 S Ct 2198 
(1979); Oyler v Boles, 368 US 448, 7 L Ed 2d 
446, 82 S Ct 501 (1962). Nor can a prosecutor 
exercise peremptory challenges on the basis of 
race. Batson v Kentucky, 476 US — 90 L 
Ed 2d 69, 106 S Ct 1712 (1986); Swain v 
Alabama, 380 US 202, 13 L Ed 2d 759, 85 S 
Ct 501 (1965). More generally, this Court has 

condemned state efforts to exclude blacks 
from grand and petit juries. Vasquez v Hil- 
lery, 474 US ——, 88 L Ed 2d 598, 106 S Ct 
617 (1986); Alexander v Louisiana, 405 US 
625, 628-629, 31 L Ed 2d 536, 92 S Ct 1221 
(1972); Whitus v Georgia, 385 US 545, 549- 
550, 17 L Ed 2d 599, 87 S Ct 643 (1967); 
Norris v Alabama, 294 US 587, 589, 88 L Ed 
2d 598, 106 S Ct 617 (1935); Neal v Delaware, 
103 US 370, 894, 26 L Ed 567 (1881); Strauder 
v West Virginia, 100 US 303, 308, 25 L Ed 
664 (1880); Ex parte Virginia, 100 US 339, 25 
L Ed 676 (1880). 

[19b, 20b, 21b, 22b] Other protections 
apply to the trial and jury deliberation pro- 
cess. Widespread bias in the community can 
make a change of venue constitutionally re- 
quired. Irvin v Dowd, 366 US 717, 6 L. Ed 2d 
751, 81 S Ct 1639 (1961). The Constitution 
prohibits racially-biased prosecutorial argu- 
ments. Donnelly v DeChristoforo, 416 US 637, 
643, 40 L Ed 2d 431, 94 S Ct 1868 (1974). If 

289 

 



  

        
    
    
   

   

    
   

guided by our recognition that “the 
inestimable privilege of trial by jury 
. . . is a vital principle, underlying 
the whole administration of criminal 
justice,” Ex parte Milligan, 4 Wall 2, 
123, 18 L Ed 281 (1866). See Duncan 
v Louisiana, 391 US 145, 155, 20 L 
Ed 2d 491, 88 S Ct 1444 45 Ohio Ops 
2d 198 (1968).*! Thus, it is the jury 
that is a criminal defendant’s funda- 
mental “protection of life and liberty 
against race or color prejudice.” 
Strauder v West Virginia, 100 US 
303, 309, 25 LL Ed 664 (1880). Specifi- 
cally, a capital sentencing jury rep- 
resentative of a criminal defendant’s 
community assures a “ ‘diffused 
impartiality,” ” Taylor v Louisiana, 
419 US 522, 530, 42 L Ed 2d 690, 95 
S Ct 692 (1975) (quoting Thiel v 

U.S. SUPREME COURT REPORTS    95 L Ed 2d 

Southern Pacific Co., 328 US 217, 
227, 90 L Ed 1181, 66 S Ct 984, 166 
ALR 1412 (1946) (Frankfurter, J., 
dissenting)), in the jury’s task of 
“express[ing] the conscience of the 
community on the ultimate question 
of life or death,” Witherspoon v Illi- 
nois, 391 US 510, 519, 20 L Ed 2d 
776, 88 S Ct 1770, 46 Ohio Ops 2d 
368 (1968).% 

[3e] Individual jurors bring to 
their deliberations ‘qualities of hu- 
man nature and varieties of human 
experience, the range of which is 

unknown and perhaps unknowable.” 
Peters v Kiff, 407 US 493, 503, 33 L 
Ed 2d 83 92 S Ct 2163 (1972) (opin- 
ion of Marshall, J.). The capital sen- 
tencing decision requires the individ- 

  

the circumstances of a particular case indi- 
cate a significant likelihood that racial bias 
may influence a jury, the Constitution re- 
quires questioning as to such bias. Ristaino v 
Ross, 424 US 589, 596, 47 L Ed 2d 258, 96 S 
Ct 1017 (1976). Finally, in a capital sentenc- 
ing hearing, a defendant convicted of an in- 
terracial murder is entitled to such question- 
ing without regard to the circumstances of 
the particular case. Turner v Murray, 476 US 
pote 90 L Ed 2d 27, 106 S Ct 1683 (1986). 

31. In advocating the adoption of the Con- 
stitution, Alexander Hamilton stated: 
“The friends and adversaries of the plan of 
the convention, if they agree in nothing else, 
concur at least in the value they set upon the 
‘trial by jury; or if there is any difference 
between them, it consists in this: the former 
regard it as a valuable safeguard to liberty, 
the latter represent it as the very palladium 
of free government.” The Federalist No. 83, p 
519 (J. Gideon ed 1818). 

32. [23b] In Witherspoon, Justice Brennan 
joined the opinion of the Court written by 
Justice Stewart. The Court invalidated a stat- 
ute that permitted a prosecutor to eliminate 
prospective jurors by challenging all who ex- 
press qualms about the death penalty. The 
Court. expressly recognized that the purpose 
of the “broad'discretion” given to a sentenc- 

ing jury is “to decide whether or not death is 
‘the proper penalty’ in a given case,” noting 
that “a juror’s general views about capital 

290 

punishment play an inevitable role in any 
such decision.” 391 US, at 519, 20 L Ed 2d 
776, 88 S Ct 1770, 46 Ohio Ops 2d 368 (em- 
phasis omitted). Thus, a sentencing jury must 
be composed of persons capable of expressing 
the “conscience of the community on the 
ultimate question of life or death.” Ibid. The 
Court referred specifically to the plurality 
opinion of Chief Justice Warren in Trop v 
Dulles, 356 US 86, 2 L. Ed 2d 630, 78 S Ct 590 
(1958), to the effect that it is the jury that 
must “maintain a link between contemporary 
community values and the penal system . . .” 
391 US, at 519, n 15, 20 L Ed 2d 776, 88 S Ct 
1770, 46 Ohio Ops 2d 368. 

The dissent’s condemnation of the results of 
the Georgia capital-punishment system must 
be viewed against this background. As to 
community values and the constitutionality of 
capital punishment in general, we have previ- 
ously noted, supra, n 23, that the elected 
representatives of the people in 37 States and 
the Congress have enacted capital punish- 
ment statutes, most of which have been en- 
acted or amended to conform generally to the 
Gregg standards, and that 33 States have 
imposed death sentences thereunder. In the 
individual case, a jury sentence reflects the 
conscience of the community as applied to the 
circumstances of a particular offender and 
offense. We reject the dissent’s contention 
that this important standard for assessing the 
constitutionality of a death penalty should be 
abandoned. 

  

    

the d 

shall 

Georg 
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270, 1 

 



   

  

    

ual jurors to focus their collective 
judgment on the unique characteris- 
tics of a particular criminal defen- 
dant. It is not surprising that such 
collective judgments often are diffi- 
cult to explain. But the inherent 
lack of predictability of jury deci- 
sions does not justify their condem- 
nation. On the contrary, it is the 

jury’s function to make the difficult 
and uniquely human judgments that 
defy codification and that “buil(d] 
discretion, equity, and flexibility into 

a legal system.” H. Kalven & H. 
Zeisel, The American Jury 498 
(1966). 

McCleskey’s argument that the 
Constitution condemns the discre- 
tion allowed decisionmakers in the 
Georgia capital sentencing system is 
antithetical to the fundamental role 
of discretion in our criminal justice 
system. Discretion in the criminal 
justice system offers substantial ben- 
efits to the criminal defendant. Not 
only can a jury decline to impose the 
death sentence, it can decline to 
convict, or choose to convict of a 
lesser offense. Whereas decisions 
against a defendant’s interest may 

McCLESKEY v KEMP 
95 L Ed 2d 262 

be reversed by the trial judge or on 
appeal, these discretionary exercises 
of leniency are final and unreviewa- 
ble.* Similarly, the capacity of pro- 
secutorial discretion to provide indi- 
vidualized justice is “firmly en- 
trenched in American law.” 2 W. 
LaFave & D. Israel, Criminal Proce- 
dure § 13.2(a), p 160 (1984). As we 
have noted, a prosecutor can decline 
to charge, offer a plea bargain, or 
decline to seek a death sentence in 
any particular case. See n 12, supra. 
Of course, “the power to be lenient 
[also] is the power to discriminate,” 
K. Davis, Discretionary Justice 170 
(1973), but a capital-punishment sys- 
tem that did not allow for discretion- 
ary acts of leniency “would be to- 
tally alien to our notions of criminal 
justice.” Gregg v Georgia, 428 US, at 
200, n 50, 49 L Ed 2d 859, 96 S Ct 
2909. 

C 

[3f, 24, 25a] At most, the Baldus 
study indicates a discrepancy that 
appears to correlate with race. Ap- 
parent disparities in sentencing are 
an inevitable part of our criminal 
justice system.” The discrepancy in- 

  

33. In the guilt phase of a trial, the Double 

Jeopardy Clause bars reprosecution after an 
acquittal, even if the acquittal is * ‘based 
upon an egregiously erroneous foundation.’ ” 
United States v DiFrancesco, 449 US 117, 129, 
66 L Ed 2d 328, 101 S Ct 426 (1980) (quoting 
Fong Foo v United States, 369 US 141, 143, 7 

L Ed 2d 629, 82 S Ct 671 (1962)). See Powell, 
Jury Trial of Crimes, 23 Wash. & Lee L Rev 

1, 7-8 (1966) (Despite the apparent injustice of 

such an acquittal, “[tlhe founding fathers, in 

light of history, decided that the balance here 
should be struck in favor of the individual”). 

In the penalty hearing, Georgia law pro- 

vides that “unless the jury . . . recommends 
the death sentence in its verdict, the court 

shall not sentence the defendant to death.” 

Georgia Code Ann § 17-10-31 (1982). In Bull- 

ington v Missouri, 451 US 430, 68 L Ed 2d 

270, 101 S Ct 1852 (1981), this Court held that 

the Double Jeopardy Clause of the Constitu- 
tion prohibits a State from asking for a sen- 
tence of death at a second trial when the jury 
at the first trial recommended a lesser sen- 
tence. 

34. In this case, for example, McCleskey 
declined to enter a guilty plea. According to 
his trial attorney, “(T]he Prosecutor was indi- 
cating that we might be able to work out a 
life sentence if he were willing to enter a 
plea. But we never reached any concrete 
stage on that because Mr. McCleskey’s atti- 
tude was that he didn’t want to enter a plea. 
So it never got any further than just talking 
about it.” Tr in No. 4909 (Jan. 30, 1981) p 56. 

35. Congress has acknowledged the exis- 
tence of such discrepancies in criminal sen- 
tences, and in 1984 created the United States 
Sentencing Commission to develop sentencing 
guidelines. The objective of the guidelines “is 

291 

 



   

! | 

dicated by the Baldus study is “a far 
cry from the major systemic defects 

' identified in Furman,” Pulley v Har- 
ris, 465 US, at 54, 79 L Ed 2d 29, 
104 S Ct 871% As this Court has 

. recognized, any mode for determin- 
ing guilt or punishment “has its 
weaknesses and the potential for 
misuse.” Singer v United States, 380 
US 24, 35, 13 L Ed 2d 630, 85 S Ct 
783 (1965). See Bordenkircher Vv 
‘Hayes, 434 US 357, 365, 54 L Ed 2d 
604, 98 S Ct 663 (1978). Specifically, 

" “there ‘can be ‘no perfect procedure 
for deciding in which cases govern- 
mental authority should be used to 

' impose death.’” Zant v Stephens, 
462 US 862, 884, 77 L Ed 2d 235, 103 
S Ct 2733 (1983) (quoting Lockett v 
Ohio, 438 US, at 605, 57 L Ed 2d 
973, 98 S Ct 2954, 9 Ohio Ops 3d 26 

' (plurality opinion of Burger, C. J.)). 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

Despite these imperfections, our con- 
sistent rule has been that constitu- 
tional guarantees are met when “the 
mode [for determining guilt or pun- 
ishment] itself has been surrounded 
with safeguards to make it as fair as 
possible.” Singer v United States, 
supra, at 35, 13 L Ed 2d 630, 85 S Ct 
783. Where the discretion that is 
fundamental to our criminal process 
is involved, we decline to assume 
that what is unexplained is invidi- 
ous. In light of the safeguards de- 
signed to minimize racial bias in the 
process, the fundamental value of 
jury trial in our criminal justice 
system, and the benefits that discre- 
tion provides to criminal defendants, 

we hold that the Baldus study does 
not demonstrate a constitutionally 
significant risk of racial bias affect- 
ing the Georgia capital-sentencing 
process.’ 

  | 

to avoid unwarranted sentencing disparities 
among defendants with similar records who 
have been found guilty of similar criminal 
‘conduct, while maintaining sufficient flexibil- 
ity to permit individualized sentencing when 
warranted by mitigating or aggravating fac- 
tors not taken into account in the guidelines.” 
52 Fed Reg 3920 (1987) (emphasis added). No 

, one contends that all sentencing disparities 
can be eliminated. The guidelines, like the 
safeguards in the Gregg-type statute, further 

I an essential need of the Anglo-American 
' criminal-justice system—to balance the desir- 
‘ability of a high degree of uniformity against 
the necessity for the exercise of discretion. 

36. The Baldus study in fact confirms that 
. the Georgia system results in a reasonable 
"level of proportionality among the class of 
murderers eligible for the death penalty. As 
Professor Baldus confirmed, the system sorts 
out cases where the sentence of death is 
highly likely and highly unlikely, leaving a 
mid-range of cases where the imposition of 
the death penalty in any particular case is 

'| less predictable. App 35-36. See n 5, supra. 

87. Justice Brennan’s eloquent dissent of 
. course reflects his often repeated opposition to 

the death sentence. His views, that also are 
shared by Justice Marshall, are principled 
and entitled to respect. Nevertheless, since 

292 

Gregg was decided in 1976, seven members of 

this Court consistently have upheld sentences 
of death under Gregg-type statutes providing 

for meticulous review of each sentence in 

both state and federal courts. The ultimate 
thrust of Justice Brennan’s dissent is that 
Gregg and its progeny should be overruled. 

He does not, however, expressly call for the 

overruling of any prior decision. Rather, rely- 
ing on the Baldus study, Justice Brennan, 
joined by Justices Marshall, Blackmun and 
Stevens, questions the very heart of our crimi- 
nal justice system: the traditional discretion 

that prosecutors and juries necessarily must 

have. 

We have held that discretion in a capital 
punishment system is necessary to satisfy the 

Constitution. Woodson v North Carolina, 428 
US 280, 49 L Ed 2d 944, 96 S Ct 2978 (1976). 
See pp —— -——, supra, 95 L Ed 2d 285- 
287. Yet, the dissent now claims that the 

“discretion afforded prosecutors and jurors in 
the Georgia capital sentencing system” vio- 

lates the Constitution by creating ‘“‘opportuni- 

ties for racial considerations to influence 
criminal proceedings.” Post, at —, 95 L Ed 

2d ——. The dissent contends that in Georgia 
“[n]o guidelines govern prosecutorial decisions 

. and that Georgia provides juries with no 
list of aggravating and mitigating factors, nor 

    

  
 



  

Nd
 

WA
 

Sd
 
R
e
 

    

  
  

McCLESKEY v KEMP 
95 L Ed 2d 262 

Vv 

[25¢, 26, 27] Two additional con- 
cerns inform our decision in this 
case. First, McCleskey’s claim, taken 
to its logical conclusion, throws into 
serious question the principles that 
underlie our entire criminal justice 
system. The Eighth Amendment is 
not limited in application to capital 
punishment, but applies to all penal- 
ties. Solem v Helm, 463 US 277, 289- 

290, 77 L Ed 2d 637, 103 S Ct 3001 
(1983); see Rummel v Estelle, 445 
US 263, 293, 63 L Ed 2d 382, 100 S 
Ct 1133 (1980) (Powell, J., dissent- 
ing). Thus, if we accepted McCles- 
key’s claim that racial bias has im- 
permissibly tainted the capital sen- 
tencing decision, we could soon be 
faced with similar claims as to other 
types of penalty.®® Moreover, the 
claim that his sentence rests on the 

  

any standard for balancing them against one 
another.” Post, at ——, 95 I, Ed 2d —. 
Prosecutorial decisions necessarily involve 
both judgmental and factual decisions that 
vary from case to case. See ABA Standards 
for Criminal Justice, 3-3.8, 3-3.9 (2d ed 1982). 
Thus, it is difficult to imagine guidelines that 
would produce the predictability sought by 
the dissent without sacrificing the discretion 
essential to a humane and fair system of 
criminal justice. Indeed, the dissent suggests 
no such guidelines for prosecutorial discre- 
tion. 

The reference to the failure to provide ju- 
ries with the list of aggravating and mitigat- 
ing factors is curious. The aggravating cir- 
cumstances are set forth in detail in the 
Georgia statute. See supra, n 3. The jury is 
not provided with a list of aggravating cir- 
cumstances because not all of them are rele- 
vant to any particular crime. Instead, the 
prosecutor must choose the relevant circum- 
stances and the State must prove to the jury 
that at least one exists beyond a reasonable 
doubt before the jury can even consider im- 
posing the death sentence. It would be im- 
proper and often prejudicial to allow jurors to 
speculate as to aggravating circumstances 
wholly without support in the evidence." 

The dissent’s argument that a list of miti- 
gating factors is required is particularly 
anomalous. We have held that the Constitu- 
tion requires that juries be allowed to con- 
sider “any relevant mitigating factor,” even if 
it is not included in a statutory list. Eddings v 
Oklahoma, 455 US 104, 112, 71 L Ed 2d 1, 102 
S Ct 869 (1982). See Lockett v Ohio, 438 US 
586, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 
3d 26 (1978). The dissent does not attempt to 
harmonize its criticism with this constitu- 
tional principle. The dissent also does not 
suggest any standard, much less a workable 
one, for balancing aggravating and mitigating 
factors. If capital defendants are to be treated 

as “uniquely individual human beings,” 
Woodson v North Carolina, supra, at 304, 49 
L Ed 2d 944, 96 S Ct 2978, then discretion to 
evaluate and weigh the circumstances rele- 
vant to the particular defendant and the 
crime he committed is essential. 

[25b] The dissent repeatedly emphasizes 
the need for “a uniquely high degree of ra- 
tionality in imposing the death penalty.” 
Post, at ——, 95 L Ed 2d . Again, no 
suggestion is made as to how greater “ration- 
ality” could be achieved under any type of 
statute that authorizes capital punishment. 
The Gregg-type statute imposes unprece- 
dented safeguards in the special context of 
capital punishment. These include: (i) a bifur- 
cated sentencing proceeding; (ii) the threshold 
requirement of one or more aggravating cir- 
cumstances; and (iii) mandatory state Su- 
preme Court review. All of these are adminis- 
tered pursuant to this Court’s decisions inter- 
preting the limits of the Eighth Amendment 
on the imposition of the death penalty, and 
all are subject to ultimate review by this 
Court. These ensure a degree of care in the 
imposition of the sentence of death that can 
be described only as unique. Given these safe- 
guards already inherent in the imposition and 
review of capital sentences, the dissent’s call 
for greater rationality is no less than a claim 
that a capital-punishment system cannot be 
administered in accord with the Constitution. 
As we reiterate, infra, the requirement of 
heightened rationality in the imposition of 
capital punishment does not “placfe] totally 
unrealistic conditions on its use.” Gregg v 
Georgia, 428 US, at 199, n 50, 49 L Ed 2d 859, 
96 S Ct 2909. 

38. Studies already exist that allegedly 
demonstrate a racial disparity in the length 
of prison sentences. See, e. g., Spohn, Gruhl, 
& Welch, The Effect of Race on Sentencing: A 
Reexamination of an Unsettled Question, 16 

Law & Soc Rev 71 (1981-1982); Unnever, Fra- 

  

293



I 

[ 

   
irrelevant factor of race easily could 

be extended to apply to claims based 

on unexplained discrepancies that 

correlate to membership in other 

‘minority groups,” and even to gen- 

‘der. Similarly, since McCleskey’s 

claim relates to the race of his vic- 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

tim, other claims could apply with 

equally logical force to statistical 

disparities that correlate with the 

race or sex of other actors in the 

criminal justice system, such as de- 

fense attorneys* or judges. Also, 

  

zier & Henretta, Race Differences in Criminal 

Sentencing, 21 Sociological Q 197 (1980). 

39. In ents of the University of Califor- 

nia v Bakke, 438 US 265, 295, 57 L Ed 2d 750, 

98 S Ct 2733 (1978) (opinion of Powell, J.), we 

recognized that the national “majority” “is 
composed of various minority groups, most of 

which can lay claim to a history of prior 

discrimination ‘at the hands of the State and 

private individuals.” See id., at 292, 57 L Ed 

"2d 750, 98 S Ct 2733 (citing Strauder v West 

Virginia, 100 US, at 308, 25 L Ed 664 (Celtic 

Irishmen) (dictum); Yick Wo v Hopkins, 118 

'US 356, 30 L Ed 220, 6 S Ct 1064 (1886) 
(Chinese); Truax'v Raich, 239 US 33, 36, 41- 
42,60 L Ed 131, 36 S Ct 7 (1915) (Austrian 
resident aliens); Korematsu v United States, 

323 US 214, 216, 89 L Ed 194, 65 S Ct 193 
(1944) (Japanese); Hernandez v Texas, 347 US 
475, 98 L Ed 866, 74 S Ct 667 (1954) (Mexican- 
Americans). See also Uniform Guidelines on 
Employee Selection Procedures (1978), 29 CFR 
§ 1607.4(B) (1986). (employer must keep re- 
cords as to the “following races and ethnic 
groups: Blacks, American Indians (including 

Alaskan natives), Asians (including Pacific 
Islanders), Hispanics (including persons of 
Mexican, Puerto Rican, Cuban, Central or 
South America, or other Spanish origin or 
culture regardless of race), and whites (Cauca- 
sians) other than Hispanics”); US Bureau of 

, the Census, 1980 Census of Population, vol 1, 
ch B (PC80-1-B), reprinted in 1986 Statistical 
Abstract of the United States 29 (dividing 
United States population by “race and Span- 
ish origin” into the following groups: White, 

| Black, American Indian, Chinese, Filipino, 
Japanese, Korean, Vietnamese, Spanish ori- 
'gin, and all other races); US Bureau of the 

' Census, 1980 Census of the Population, Sup- 
' plementary | Report, series PC80-S1-10, re- 

printed in 1986 Statistical Abstract of the 
United States 34 (listing 44 ancestry groups 
and noting that many individual reported 
‘themselves to belong to multiple ancestry 
groups). ; 

We also have recognized that the ethnic 
composition of the Nation is ever-shifting. 
Crawford v Board of Ed., 458 US 527, 73 L Ed 

2904 

2d 948, 102 S Ct 3211 (1982) illustrates demo- 

graphic facts that we increasingly find in our 

country, namely, that populations change in 

composition, and may do so in relatively short 

time spans. We noted: “In 1968 when the case 

went to trial, the [Los Angeles] District was 

53.6% white, 22.6% black, 20% Hispanic, and 

3.8% Asian and other. By October 1980, the 

demographic composition had altered radi- 

cally: 23.7% white, 23.3% black, 45.3% His- 

panic, and 7.7% Asian and other.” Id., at 530, 

nl, 73 L Ed 2d 948, 102 S Ct 3211. Increas- 
ingly whites are becoming a minority in many 

of the larger American cities. There appears 

to be no reason why a white defendant in 
such a city could not make a claim similar to 
McCleskey’s if racial disparities in sentencing 
arguably are shown by a statistical study. 

Finally, in our heterogeneous society the 
lower courts have found the boundaries of 
race and ethnicity increasingly difficult to 
determine. See Shaare Tefila Congregation v 
Cobb, 785 F2d 523 (CA4 1986), cert granted, 
479 US —, 93 L Ed 2d 21, 107 S Ct 62 
(1986), and Al-Khazraji v Saint Francis Col- 
lege, 784 F2d 505 (CA3 1986), cert granted, 
479 US —, 93 L Ed 2d 21, 107 S Ct 62 
(1986) (argued February 25, 1987) (presenting 

the questions of whether Jews and Arabs, 
respectively, are “races” covered by 42 USC 
§61981 and 1982 [42 USCS §§1981 and 
1982). 

40. See Chamblin, The Effect of Sex on the 
Imposition of the Death Penalty (paper pre- 
sented at a symposium of the Amer Psych 
Assn, entitled “Extra-legal Attributes Affect- 
ing Death Penalty Sentencing,” New York 
City, Sept., 1979); Steffensmeier, Effects of 
Judge’s and Defendant’s Sex on the Sentenc- 
ing of Offenders, 14 Psychology 3 (1977). 

41. See Johnson, Black Innocence and the 
White Jury, 83 Mich L Rev 1611, 1625-1640, 
and n 115 (1985) (citing Cohen & Peterson, 
Bias in the Courtroom: Race and Sex Effects 
of Attorneys on Juror Verdicts, 9 Social Be- 
havior & Personality 81 (1981); Hodgson & 
Pryor, Sex Discrimination in the Courtroom: 
Attorney’s Gender and Credibility, 55 Psycho- 
logical Rep 483 (1984). 

42. See Steffensmeier, supra, n 31. 

    

  
 



  

  
    

McCLESKEY v KEMP 
95 L Ed 2d 262 

there is no logical reason that such a 
claim need be limited to racial or 
sexual bias. If arbitrary and capri- 
cious punishment is the touchstone 
under the Eighth Amendment, such 
a claim could—at least in theory—be 
based upon any arbitrary variable, 
such as the defendant’s facial char- 
acteristics, or the physical attrac- 

tiveness of the defendant or the vic- 
tim,“ that some statistical study in- 

dicates may be influential in jury 
decisionmaking. As these examples 
illustrate, there is no limiting princi- 

ple to the type of challenge brought 
by McCleskey.#® The Constitution 
does not require that a State elimi- 
nate any demonstrable disparity 
that correlates with a potentially 
irrelevant factor in order to operate 
a criminal justice system that in- 
cludes capital punishment. As we 

  

43. See Kerr, Bull, MacCoun, & Rathborn, 
Effects of victim attractiveness, care and dis- 

figurement on the judgements of American 

and British mock jurors, 24 Brit J Social 
Psych 47 (1985); Johnson, supra, 1638, n 128 

(citing Shoemaker, South, & Lowe, Facial Ste- 
reotypes of Deviants and Judgments of Guilt 
or Innocence, 51 Social Forces 427 (1973)). 

44. Some studies indicate that physically 
attractive defendants receive greater leniency 

in sentencing than unattractive defendants, 

and that offenders whose victims are physi- 

cally attractive receive harsher sentences 

than defendants with less attractive victims. 

Smith & Hed, Effects of Offenders’ Age and 
Attractiveness on Sentencing by Mock Juries, 

44 Psychological R 691 (1979); Kerr, Beautiful 

and Blameless: Effects of Victim Attractive- 

ness and Responsibility on Mock Jurors’ Ver- 
dicts, 4 Personality and Social Psych Bull 479 

(1978). But see Baumeister & Darley, Reduc- 

ing the Biasing Effect of Perpetrator Attrac- 

tiveness in Jury Simulation, 8 Personality 
and Social Psych Bull 286 (1982); Schwibbe & 
Schwibbe, Judgment and Treatment of People 
of Varied Attractiveness, 48 Psychological R 
11 (1981); Weiten, The Attraction-Leniency 
Effect in Jury Research: An Examination of 
External Validity, 10 J Applied Social Psych 
340 (1980). 

45. Justice Stevens, who would not overrule 

Gregg, suggests in his dissent that the infirmi- 

ties alleged by McCleskey could be remedied 

by narrowing the class of death-eligible defen- 

dants to categories identified by the Baldus 

study where “prosecutors consistently seek, 

and juries consistently impose, the death pen- 
alty without regard to the race of the victim 
or the race of the offender.” Post, at —, 95 

L Ed 2d —. This proposed solution is uncon- 
vincing. First, “consistently” is a relative 
term, and narrowing the category of death- 

eligible defendants would simply shift the 
borderline between those defendants who re- 
ceived the death penalty and those who did 
not. A borderline area would continue to exist 
and vary in its boundaries. Moreover, because 
the discrepancy between borderline cases 
would be difficult to explain, the system 
would likely remain open to challenge on the 

basis that the lack of explanation rendered 
the sentencing decisions unconstitutionally 
arbitrary. 

Second, even assuming that a category with 
theoretically consistent results could be iden- 

tified, it is difficult to imagine how Justice 

Stevens’ proposal would or could operate on a 
case-by-case basis. Whenever a victim is white 

and the defendant is a member of a different 
race, what steps would a prosecutor be re- 
quired to take—in addition to weighing the 

customary prosecutorial considerations—be- 
fore concluding in the particular case that he 
lawfully could prosecute? In the absence of a 
current, Baldus-type study focused particu- 
larly on the community in which the crime 
was committed, where would he find a stan- 
dard? Would the prosecutor have to review 
the prior decisions of community prosecutors 
and determine the types of cases in which 
juries in his jurisdiction “consistently” had 
imposed the death penalty when the victim 
was white and the defendant was of a differ- 
ent race? And must he rely solely on statis- 
tics? Even if such a study were feasible, would 
it be unlawful for the prosecutor, in making 
his final decision in a particular case, to 
consider the evidence of guilt and the pres- 

ence of aggravating and mitigating factors? 

However conscientiously a prosecutor might 
attempt to identify death-eligible defendants 
under the dissent’s suggestion, it would be a 
wholly speculative task at best, likely to re- 
sult in less rather than more fairness and 
consistency in the imposition of the death 
penalty. 

295



  

have stated specifically in the con- 
text of capital punishment, the Con- 

stitution does not “plac[e] totally un- 

realistic conditions on its use.” 
Gregg v Georgia, 428 US, at 199, n 
50, 49 L Ed 2d 859, 96 S Ct 2909. 

[28] Second, McCleskey’s argu- 
ments are best presented to the leg- 

islative bodies. It is not the responsi- 

bility—or indeed even the right—of 

' this Court to determine the appro- 

' priate punishment for particular 

crimes. It is the legislatures, the 

elected representatives of the people, 

that are “constituted to respond to 

+ the will and consequently the moral 

values of the people.” Furman v 

Georgia, 408 US, at 383, 33 L Ed 2d 

346, 92 S' Ct 2726 (Burger, C. J, 

' dissenting). Legislatures also are bet- 
ter qualified to weigh and “evaluate 

the results of statistical studies in 

terms of their own local conditions 

and ‘with a flexibility of approach 

that is not available to the courts,” 

‘Gregg v Georgia, supra, at 186, 49 L 

U.S. SUPREME COURT REPORTS 95 L Ed 2d 

Ed 2d 859, 96 S Ct 2909. Capital 
punishment is now the law in more 

than two thirds of our States. It is 

the ultimate duty of courts to deter- 
mine on a case-by-case basis whether 

these laws are applied consistently 

with the Constitution. Despite Mc- 

Cleskey’s wide ranging arguments 

that basically challenge the validity 

of capital punishment in our multi- 
racial society, the only question be- 
fore us is whether in his case, see 

supra, at —-——, 95 L Ed 2d 

272-274, the law of Georgia was 
properly applied. We agree with the 

District Court and the Court of Ap- 

peals for the Eleventh Circuit that 

this was carefully and correctly done 

in this case. 

VI 

Accordingly, we affirm the judg- 

ment of the Court of Appeals for the 

Eleventh Circuit. 

It is so ordered. 

SEPARATE OPINIONS 

Justice Brennan, with whom Jus- 

tice Marshall joins, and with whom 
‘Justice Blackmun and Justice Ste- 

vens join in all but Part I, dissent- 

ing. 
I 

Adhering to my view that the 

death penalty is in all circumstances 

cruel and unusual punishment for- 

bidden by the Eighth and Four- 
teenth Amendments, I would vacate 

the decision below insofar as it left 

undisturbed the death sentence im- 

in this case. Gregg v Georgia, 

428 US 153, 227, 49 L Ed 2d 859, 96 

8S Ct 2909 (1976). The Court observes 

. that “[tlhe Gregg-type statute im- 

+ poses unprecedented safeguards in 

the special context of capital punish- 

ment,” which “ensure a degree of 

care in the imposition of the death 

penalty that can be described only 

as unique.” Ante, at —, n 31, 95 L 

Ed 2d 290. Notwithstanding these 

efforts, murder defendants in Geor- 

gia with white victims are more 

than four times as likely to receive 

the death sentence as are defendants 

with black victims. Petitioner's Ex- 

hibit DB 82. Nothing could convey 

more powerfully the intractable real- 

ity of the death penalty: “that the 

effort to eliminate arbitrariness in 

the infliction of that ultimate sanc- 

tion is so plainly doomed to failure 

that it—and the death penalty- 

—must be abandoned altogether.” 

  
  

   



Jw 
> 

e 

  
  

McCLESKEY v KEMP 
95 L Ed 2d 262 

Godfrey v Georgia, 446 US 420, 442, 
64 L Ed 2d 398, 100 S Ct 1759 (1980) 
(Marshall, J., concurring in the judg- 
ment). 

Even if I did not hold this position, 

however, I would reverse the Court 
of Appeals, for petitioner McCleskey 
has clearly demonstrated that his 
death sentence was imposed in viola- 
tion of the Eighth and Fourteenth 
Amendments. While I join Parts I 
through IV-A of Justice Blackmun’s 
dissenting opinion discussing peti- 
tioner’s Fourteenth Amendment 
claim, I write separately to empha- 
size how conclusively McCleskey has 
also demonstrated precisely the type 
of risk of irrationality in sentencing 
that we have consistently con- 
demned in our Eighth Amendment 
jurisprudence. 

II 

At some point in this case, Warren 
McCleskey doubtless asked his law- 
yer whether a jury was likely to 
sentence him to die. A candid reply 
to this question would have been 
disturbing. First, counsel would have 
to tell McCleskey that few of the 
details of the crime or of McCles- 
key’s past criminal conduct were 
more important than the fact that 
his victim was white. Petitioner's 
Supplemental Exhibits (Supp Exh) 
50. Furthermore, counsel would feel 
bound to tell McCleskey that defen- 
dants charged with killing white vic- 
tims in Georgia are 4.3 times as 
likely to be sentenced to death as 
defendants charged with killing 
blacks. Petitioner’s Exhibit DB 82. 
In addition, frankness would compel 
the disclosure that it was more 
likely than not that the race of Mc- 
Cleskey’s victim would determine 
whether he received a death sen- 
tence: 6 of every 11 defendants con- 

victed of killing a white perso 
would not have received the deat 
penalty if their victims had bee 
black, Supp Exh 51, while, amon 
defendants with aggravating an 
mitigating factors comparable t 
McCleskey, 20 of every 34 would no 
have been sentenced to die if thei 
victims had been black. Id., at 54 
Finally, the assessment would not b 
complete without the informatioy 
that cases involving black defe 
dants and white victims are mor 
likely to result in a death sentenc 
than cases featuring any other racia 
combination of defendant and vid 
tim. Ibid. The story could be told ij 
a variety of ways, but McCleske 
could not fail to grasp its essentia 
narrative line: there was a signifi 
cant chance that race would play § 
prominent role in determining if h 
lived or died. 

The Court today holds that Wa 
ren McCleskey’s sentence was consti 
tutionally imposed. It finds no faul 
in a system in which lawyers mus 
tell their clients that race casts § 
large shadow on the capital sentenc| 
ing process. The Court arrives a 
this conclusion by stating that the 
Baldus Study cannot “prove tha 
race enters into-any capital sentenc 
ing decisions or that race was 
factor in McCleskey’s particula 
case.” Ante, at ——, 95 L Ed 2d 

(emphasis in original). Since, accord 
ing to Professor Baldus, we canno 
say “to a moral certainty” that rac 
influenced a decision, ante, at —— 
n 23, 95 LL Ed 2d 284, we can iden 
tify only “a likelihood that a particu 
lar factor entered into some deci 
sions”, ante, at ——, 95 L Ed 2d 

, and “a discrepancy that ap 
pears to correlate with race.” Ante 
at —, 95 L Ed 2d ——. This “like 
lihood” and “discrepancy,” holds the 

  

1 
y 

 



  

Court, is' insufficient to establish a 

constitutional violation. The Court 

reaches this conclusion by placing 

four factors on the scales opposite 

 McCleskey’s evidence: the desire to 

encourage, sentencing discretion, the 

existence ‘of “statutory safeguards” 

in the Georgia scheme, the fear of 

encouraging widespread challenges 

to other sentencing decisions, and 

the limits of the judicial role. The 

“Court’s evaluation of the significance 

of petitioner’s evidence is fundamen- 

tally at odds with our consistent 

concern for rationality in capital 

sentencing, and the considerations 

that the majority invokes to discount 

that evidence cannot justify ignoring 

"its force. 

It is important to emphasize at the 

outset that the Court’ observation 

‘that ' McCleskey cannot prove the 

influence of race on any particular 

sentencing decision 'is irrelevant in 

‘evaluating his Eighth Amendment 

claim. Since Furman v Georgia, 408 

US 238, 33 L Ed 2d 346, 92 S Ct 

2726 (1972), the Court has been con- 

cerned with the risk of the imposi- 

tion of an arbitrary sentence, rather 

than the proven fact of one. Furman 

held that the death penalty “may 

not be imposed under sentencing 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

procedures that create a substantial 

risk that the punishment will be 

inflicted in an arbitrary and capri- 

cious manner.” Godfrey v Georgia, 

446 US, at 427, 64 L Ed 2d 398, 100 

S Ct 1759. As Justice O'Connor ob- 

served in Caldwell v Mississippi, 472 

US 320, 343, 86 L Ed 2d 231, 105 S 

Ct 2633 (1985), a death sentence 

must be struck down when the cir- 

cumstances under which it has been 

imposed “creat[e] an unacceptable 

risk that ‘the death penalty [may 

have been] meted out arbitrarily or 

capriciously’ or through ‘whim or 

mistake’ ” (emphasis added) (quoting 

California v Ramos, 463 US 992, 999, 

77 L Ed 2d 1171, 103 S Ct 3446 

(1983)). This emphasis on risk ac- 

knowledges the difficulty of divining 

the jury’s motivation in an individ- 

ual case. In addition, it reflects the 

fact that concern for arbitrariness 

focuses on the rationality of the sys- 

tem as a whole, and that a system 

that features a significant probabil- 

ity that sentencing decisions are in- 

fluenced by impermissible considera- 

tions cannot be regarded as ra- 

tional! As we said in Gregg v Geor- 

gia, 428 US 153, 200, 49 L Ed 2d 

859, 96 S Ct 2909 (1976), “the peti- 

tioner looks to the sentencing sys- 

tem as a whole (as the Court did in 

Furman and we do today)”: a consti- 

tutional violation is established if a 

plaintiff demonstrates a “pattern of 

arbitrary and capricious sentenc- 

  

1. Once we can identify a pattern of arbi- 

trary sentencing outcomes, we can say that a 

defendant runs a risk of being sentenced arbi- 

trarily. It is thus immaterial whether the 

| operation of an impermissible influence such 

as race is intentional. While the Equal Protec- 

tion Clause forbids racial discrimination, and 

intent may be critical in a successful claim 

under that provision, the Eighth Amendment 

has its own distinct focus: whether punish- 

'ment comports with social standards of ra- 

tionality and decency. It may be, as in this 

298 

case, that on occasion an influence that makes 

punishment arbitrary is also proscribed under 

another constitutional provision. That does 

not mean, however, that the standard for 

determining an Eighth Amendment violation 

is superceded by the standard for determining 

a violation under this other provision. Thus, 

the fact that McCleskey presents a viable 

Equal Protection claim does not require that 

he demonstrate intentional racial discrimina- 

tion to establish his Eighth Amendment 

claim. 

  
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i 

McCLESKEY v KEMP 
95 L Ed 2d 262 

ing.” 428 US, at 195, n 46, 49 L Ed 
2d 859, 96 S Ct 2909 (emphasis 
added). 

As a result, our inquiry under the 
Eighth Amendment has not been 
directed to the validity of the indi- 
vidual sentences before us. In God- 
frey, for instance, the Court struck 
down the petitioner's sentence be- 
cause the vagueness of the statutory 
definition of heinous crimes created 
a risk that prejudice or other imper- 
missible influences might have in- 
fected the sentencing decision. In 
vacating the sentence, we did not 
ask whether it was likely that God- 
frey’s own sentence reflected the op- 
eration of irrational considerations. 
Nor did we demand a demonstration 
that such considerations had actu- 
ally entered into other sentencing 
decisions involving heinous crimes. 
Similarly, in Roberts v Louisiana, 
428 US 325, 49 L Ed 2d 974, 96 S Ct 
3001 (1976), and Woodson v North 
Carolina, 428 US 280, 49 L Ed 2d 
944, 96 S Ct 2978 (1976), we struck 
down death sentences in part be- 
cause mandatory imposition of the 
death penalty created the risk that a 
jury might rely on arbitrary consid- 
erations in deciding which persons 
should be convicted of capital 
crimes. Such a risk would arise, we 
said, because of the likelihood that 
jurors reluctant to impose capital 
punishment on a particular defen- 
dant would refuse to return a convic- 
tion, so that the effect of mandatory 
sentencing would be to recreate the 
unbounded sentencing discretion 
condemned in Furman. Roberts, su- 
pra, at 334-335, 49 L Ed 2d 974, 96 S 
Ct 3001; Woodson, supra, at 303, 49 
L Ed 2d 944, 96 S Ct 2978. We did 
not ask whether the death sentences 
in the cases before us could have 
reflected the jury’s rational consider- 

ation and rejection of mitigating fac- 
tors. Nor did we require proof that 
Juries had actually acted irrationally 
in other cases. 

Defendants challenging their 
death sentences thus never have had 
to prove that impermissible consider- 
ations have actually infected sen- 
tencing decisions. We have required 
instead that they establish that the 
system under which they were sen- 
tenced posed a significant risk of 
such an occurrence. McCleskey’s 
claim does differ, however, in one 
respect from these earlier cases: it is 
the first to base a challenge not on 
speculation about how a system 
might operate, but on empirical doc- 
umentation of how it does operate. 

The Court assumes the statistical 
validity of the Baldus study, ante, at 
— 0-1, 95 1, Ed 2d 277, and 
acknowledges that McCleskey has 
demonstrated a risk that racial prej- 
udice plays a role in capital sentenc- 
ing in Georgia, ante, at —, 95 L 
Ed 2d ——. Nonetheless, it finds the 
probability of prejudice insufficient 
to create constitutional concern. 
Ante, at —, 95 L Ed 2d —. Close 
analysis of the Baldus study, how- 
ever, in light of both statistical prin- 
ciples and human experience, re- 
veals that the risk that race influ- 
enced McCleskey’s sentence is intol- 
erable by any imaginable standard. 

B 

The Baldus study indicates that, 
after taking into account some 230 
nonracial factors that might legiti- 
mately influence a sentencer, the 
jury more likely than not would 
have spared McCleskey’s life had his 
victim been black. The study distin- 
guishes between those cases in 
which (1) the jury exercises virtually 

299 

 



| 

  

| 

| 

no discretion because the strength or 
weakness of aggravating factors usu- 
ally suggests that only one outcome 

18 appropriate; 2 and (2) cases reflect- 
ing an “intermediate” level of aggra- 
vation, in which the jury has consid- 
erable discretion in choosing a sen- 

' tence.!' McCleskey’s case falls into 
the. intermediate range. In such 
cases, death is imposed in 34% of 
white-victim crimes and 14% of 

' black-victim crimes, a difference of 
139% in the rate of imposition of the 
death penalty. Supp Exh 54. In 
other words, just under 59%—al- 
most 6 in '10—defendants compara- 
ble to McCleskey would not have 
received the death penalty if their 
‘victims had been black.* 

Furthermore, even examination of 
the sentencing system as a whole, 
‘factoring in those cases in which the 
jury exercises little discretion, indi- 
cates the influence of race on capital 
sentencing. For the Georgia system 
as a whole, race accounts for a six 
percentage point difference in the 
rate at which capital punishment is 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

imposed, Since death is imposed in 
11% of all white-victim cases, the 
rate in comparably aggravated 
black-victim cases is 5%. The rate of 
capital sentencing in a white-victim 
case is thus 120% greater than the 
rate in a black-victim case. Put an- 
other way, over half—55%—of de- 
fendants in white-victim crimes in 
Georgia would not have been sen- 
tenced to die if their victims had 
been black. Of the more than 200 
variables potentially relevant to a 
sentencing decision, race of the vic- 
tim is a powerful explanation for 
variation in death sentence rates— 
as powerful as nonracial aggravating 
factors such as a prior murder con- 
viction or acting as the principal 
planner of the homicide. 

These adjusted figures are only 
the most conservative indication of 
the risk that race will influence the 
death sentences of defendants in 
Georgia. Data unadjusted for the 
mitigating or aggravating effect of 
other factors show an even more 

  

2. The first two and the last of the study’s 
eight case-categories represent those cases in 

©" which the jury typically sees little leeway in 
deciding on a sentence. Cases in the first two 
categories are those that feature aggravating 
factors so minimal that juries imposed no 
death sentences in the 88 cases with these 
factors during the period of the study. Supp 
Exh 54. Cases in the eighth category feature 
aggravating factors so extreme that the jury 
imposed the death penalty in 88% of the 58 
cases with these factors in the same period. 

8. In the five categories characterized as 
intermediate, the rate at which the death 
penalty was imposed ranged from 8% to 41%. 
The overall rate for the 326 cases in these 
‘categories was 20%. Ibid. 

4. The considerable racial disparity in sen- 
tencing rates among these cases is consistent 
with the “liberation hypothesis” of H. Kalven 
and H. Zeisel in their landmark work, The 

American Jury (1966). These authors found 

300 

that, in close cases in which jurors were most 

often in disagreement, “(t]he closeness of the 

evidence makes it possible for the jury to 
respond to sentiment by liberating it from the 
discipline of the evidence.” Id., at 165. While 
“the jury does not often consciously and ex- 
plicitly yield to sentiment in the teeth of the 
law . . . it yields to sentiment in the apparent 

process of resolving doubts as to evidence. The 
jury, therefore, is able to conduct its revolt 

from the law within the etiquette of resolving 
issues of fact.” Ibid. Thus, it is those cases in 
which sentencing evidence seems to dictate 
neither life imprisonment nor the death pen- 
alty that impermissible factors such as race 
play the most prominent role. 

5. The fact that a victim was white ac- 
counts for a nine percentage point difference 
in the rate at which the death penalty is 
imposed, which is the same difference attrib- 

utable to a prior murder conviction or the 
fact that the defendant was the “prime 
mover” in planning a murder. Supp Exh 50. 

  

  

  
 



  

  
  
  

McCLESKEY v KEMP 
95 L Ed 2d 262 

pronounced disparity by race. The 
capital sentencing rate for all white- 
victim cases was almost 11 times 
greater than the rate for black-vic- 
tim cases. Supp Exh 47. Further- 
more, blacks who kill whites are 
sentenced to death at nearly 22 
times the rate of blacks who kill 
blacks, and more than 7 times the 
rate of whites who kill blacks. Ibid. 
In addition, prosecutors seek the 
death penalty for 70% of black de- 
fendants with white victims, but for 
only 15% of black defendants with 
black victims, and only 19% of white 
defendants with black victims. Id., at 
56. Since our decision upholding the 
Georgia capital-sentencing system in 
Gregg, the State has executed 7 per- 
sons. All of the 7 were convicted of 
killing whites, and 6 of the 7 exe- 
cuted were black.® Such execution 
figures are especially striking in 
light of the fact that, during the 
period encompassed by the Baldus 
study, only 9.2% of Georgia homi- 
cides involved black defendants and 
white victims, while 60.7% involved 
black victims. 

McCleskey’s statistics have partic- 
ular force because most of them are 
the product of sophisticated multi- 
ple-regression analysis. Such analy- 
sis is designed precisely to identify 
patterns in the aggregate, even 
though we may not be able to re- 
constitute with certainty any indi- 
vidual decision that goes to make up 
that pattern. Multiple-regression 
analysis is particularly well-suited to 
identify the influence of impermissi- 
ble considerations in sentencing, 
since it is able to control for permis- 
sible factors that may explain an 

apparent arbitrary pattern.” Whild 
the decision-making process of 
body such as a jury may be complex 
the Baldus study provides a massive 
compilation of the details that are 
most relevant to that decision. As we 
held in the Title VII context last 
term in Bazemore v Friday, 478 US 
—, 92 L Ed 2d 315, 106 S Ct 3000 
(1986), a multiple-regression analysis 
need not include every conceivable 
variable to establish a party’s case, 
as long as it includes those variable 
that account for the major factors 
that are likely to influence decisions. 
In this case, Professor Baldus in fact 
conducted additional regression ana- 
lyses in response to criticisms and 
suggestions by the District Court, all 
of which confirmed, and some o 
which even strengthened, the study’s 
original conclusions. 

The statistical evidence in this 
case thus relentlessly documents the 
risk that McCleskey’s sentence was 
influenced by racial considerations. 
This evidence shows that there is a 
better than even chance in Georgia 
that race will influence the decision 
to impose the death penalty: a ma- 
jority of defendants in white-victim 
crimes would not have been sen- 
tenced to die if their victims had 
been black. In determining whether 
this risk is acceptable, our judgment 
must be shaped by the awareness 
that “[tlhe risk of racial prejudice 
infecting a capital sentencing pro- 
ceeding is especially serious in light 
of the complete finality of the death 
sentence.” Turner v Murray, 476 US 
-—, — 90 L. Ed 2d 27, 106 S Ct 
1683 (1986), and that ‘(i]t is of vital 
importance to the defendant and to 
the community that any decision to 

  

6. NAACP Legal Defense and Educational 
Fund, Death Row U. S. A. 4 (August 1, 1986). 

7. See generally Fisher, Multiple Regression 

in Legal Proceedings, 80 Colum L Rev 701 
(1980). 

301 

 



      | 

impose the death sentence be, and 
appear to be, based on reason rather 
than caprice or emotion.” Gardner v 
Florida, 430 US 349, 358, 51 L Ed 2d 
893, 97 S Ct 1197 (1977). In deter- 
mining the guilt of a defendant, a 

. state must prove its case beyond a 
reasonable doubt. That is, we refuse 

to convict if the chance of error is 
simply less likely than not. Surely, 
we should not be willing to take a 
person’s' life if the chance that his 
death sentence was irrationally im- 
posed is more likely than not. In 
light of the gravity of the interest at 
stake, petitioner’ 8s statistics on their 
face are’ a powerful demonstration of 
the type of risk that our Eighth 
Amendment jurisprudence has con- 
sistently condemned. 

C 

Evaluation, of McCleskey’s evi- 
dence cannot rest solely on the num- 
bers themselves. We must also ask 
whether the conclusion suggested by 
those numbers is consonant with our 
understanding of history and human 
‘experience. Georgia's legacy of a 
race-conscious criminal justice sys- 
tem, as well as this Court’s own 
recognition of the persistent danger 
that racial attitudes may affect crim- 
inal proceedings, indicate that Mc- 
‘Cleskey’s claim is not a fanciful 
product of mere statistical artifice. 

For many years, Georgia operated 
openly and formally precisely the 
type of dual system the evidence 
shows is still effectively in place. The 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

criminal law expressly differentiated 
between crimes committed by and 
against blacks and whites, distinc- 
tions whose lineage traced back to 
the time of slavery. During the colo- 
nial period, black slaves who killed 
whites in Georgia, regardless of 
whether in self-defense or in defense 
of another, were automatically exe- 

cuted. A. Higginbotham, In the Mat- 
ter of Color: Race in the American 
Legal Process 256 (1978).8 

By the time of the Civil War, a 

dual system of crime and punish- 
ment was well established in Geor- 
gia. See Ga Penal Code (1861). The 
state criminal code contained sepa- 
rate sections for “Slaves and Free 
Persons of Color”, Pt 4, Tit 3, Ch 1, 
and for all other persons, Pt 4, Tit 1, 
Divs 1-16. The code provided, for 
instance, for an automatic death 
sentence for murder committed by 
blacks, Pt 4, Tit 1, Art II § 4704, but 
declared that anyone else convicted 
of murder might receive life impris- 
onment if the conviction were 
founded solely on circumstantial tes- 
timony or simply if the jury so rec- 
ommended. Pt 4, Tit 1, Div 4 § 4220. 

The code established that the rape of 
a free white female by a black “shall 
be” punishable by death. § 4704. 
However, rape by anyone else of a 
free white female was punishable by 
a prison term not less than 2 nor 
more than 20 years. The rape of 
blacks was punishable “by fine and 
imprisonment, at the discretion of 
the court.” § 4249. A black convicted 
of assaulting a free white person 

  

8 Death could also be inflicted upon a slave 
who “grievously wound(ed], maim[ed], or 
bruis(ed] any white person”, who was con- 
victed for the third time of striking a white 
person, or who attempted to run away out of 
the provirice. A. Higginbotham, In the Matter 
of Color: Race in the American Legal Process 
256 (1978). On the other hand, a person who 

302 

willfully murdered a slave was not punished 
until the second offense, and then was respon- 
sible simply for restitution to the slave owner. 
Furthermore, conviction for willful murder of 

a slave was subject to the difficult require- 

ment of the oath of two white witnesses. Id., 
at 253-54, and n 190. 

  

  

  

 



  

  

  

  

with intent to murder could be put 
to death at the discretion of the 
court, § 4708, but the same offense 

committed against a black, slave or 

free, was classified as a “minor” of- 
fense whose punishment lay in the 
discretion of the court, as long as 
such punishment did not “extend to 
life, limb, or health.” Art III §§ 4714, 
4718. Assault with intent to murder 
by a white person was punishable by 
a prison term of from 2 to 10 years. 
Div 4 § 4258. While sufficient provo- 
cation could reduce a charge of mur- 
der to manslaughter, the code pro- 
vided that “[o]bedience and submis- 
sion being the duty of a slave, much 
greater provocation is necessary to 

reduce a homicide of a white person 
by him to voluntary manslaughter, 
than is prescribed for white per- 
sons.” Art II § 4711. 

In more recent times, some 40 

years ago, Gunnar Myrdal’s epochal 
study of American race relations 
produced findings mirroring McCles- 
key’s evidence: 

“As long as only Negroes are con- 
cerned and no whites are dis- 
turbed, great leniency will be 
shown in most cases .... The 
sentences for even major crimes 
are ordinarily reduced when the 
victim is another Negro. 

For offenses which involve any 
actual or potential danger to 
whites, however, Negroes are pun- 
ished more severely than whites. 

On the other hand, it is quite 
common for a white criminal to be 
set free if his crime was against a 
Negro.” Myrdal, An American Di- 
lemma 551-553 (1944). 

This Court has invalidated por- 

McCLESKEY v KEMP 
95 L Ed 2d 262 

tions of the Georgia capital sentenc- 
ing system 3 times over the past 15 
years. The specter of race discrimi- 
nation was acknowledged by the 
Court in striking down the Georgia 
death-penalty statute in Furman. 
Justice Douglas cited studies sug- 
gesting imposition of the death pen- 
alty in racially discriminatory fash- 
ion, and found the standardless stat- 
utes before the Court “pregnant 
with discrimination.” 408 US, at 
2567, 33 L Ed 2d 346, 92 S Ct 2726 
(Douglas, J., concurring). Justice 
Marshall pointed to statistics indi- 
cating that “Negroes [have been] ex- 
ecuted far more often than whites in 
proportion to their percentage of the 
population. Studies indicate that 
while the higher rate of execution 
among Negroes is partially due to a 
higher rate of crime, there is evi- 
dence of racial discrimination.” Id., 

at 364, 33 L Ed 2d 346, 92 S Ct 2726 
(Marshall, J., concurring). Although 
Justice Stewart declined to conclude 
that racial discrimination had been 
plainly proven, he stated that “[m]y 
concurring Brothers have demon- 
strated that, if any basis can be 

discerned for the selection of these 
few to be sentenced to die, it is the 
constitutionally impermissible basis 
of race.” Id., at 310, 33 LL Ed 2d 346, 
92 S Ct 2726. In dissent, Chief Jus- 
tice Burger acknowledged that sta- 
tistics “suggest, at least as a histori- 
cal matter, that Negroes have been 
sentenced to death with greater fre- 
quency than whites in several 
States, particularly for the crime of 
interracial rape.” Id., at 289, n 12, 
33 L Ed 2d 346, 92 S Ct 2726. Fi- 
nally, also in dissent, Justice Powell 
intimated that an Equal Protection 
Clause argument would be available 
for a black “who could demonstrate 
that members of his race were being 

303 

 



   
gingled out for more severe punish- 

ment than others charged with the 

same offense.” 1d., at 449, 33 L Ed 2d 

346, 92 S Ct 2726. He noted that 

although the Eighth Circuit had re- 

jected a claim of discrimination in 

Maxwell v Bishop, 398 F2d 138 (CA8 
1968), vacated and remanded on 

other grounds, 398 US 262, 26 L Ed 

‘2d 221, 90 S Ct 1578 (1970), the 

statistical evidence in that case 

“tend[ed] to show a pronounced dis- 

‘proportion in the number of Negroes 
receiving death sentences for rape in 

parts of Arkansas and elsewhere in 

the South.” 408 US, at 449, 33 L Ed 

2d 346, 92 S Ct 2726. It is clear that 

‘the Court regarded the opportunity 

for the operation of racial prejudice 

a particularly troublesome aspect of 

' the unbounded discretion afforded by 

the Georgia sentencing scheme. 

Five years later, the Court struck 

"down the imposition of the death 

penalty in Georgia for the crime of 

rape. Coker v Georgia, 433 US 584, 

53 L Ed 2d 982, 97 S Ct 2861 (1977). 

Although’ the Court did not explic- 

itly mention race, the decision had 

to have been informed by the spe- 

cific observations on rape by both 

the Chief Justice and Justice Powell 

' in Furman. Furthermore, evidence 

submitted to the Court indicated 

~ that black men who committed rape, 

‘particularly of white women, were 

considerably more likely to be sen- 

tenced to death than white rapists. 

For instance, by 1977 Georgia had 

executed 62 men for rape since the 

Federal Government began compil- 

"ing statistics in 1930. Of these men, 

58 were black and 4 were white. See 

Brief for Petitioner in Coker v Geor- 

gia, 0. T. 1976, No. 75-5444, p 56; see 
‘also Wolfgang & Riedel, Rape, Race, 

. and the Death Penalty in Georgia, 

"45 'Am J Orthopsychiatry 658 (1975). 

304 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

Three years later, the Court in 

Godfrey found one of the State’s 

statutory aggravating factors uncon- 

stitutionally vague, since it resulted 

in “standardless and unchanneled 

imposition of death sentences in the 

uncontrolled discretion of a basically 
uninstructed jury ...” 446 US, at 
429, 64 L Ed 2d 398, 100 S Ct 1759. 
Justice Marshall, concurring in the 

judgment, noted that “[t]he disgrace- 

ful distorting effects of racial dis- 
crimination and poverty continue to 
be painfully visible in the imposition 

of death sentences.” Id., at 439, 64 L 
Ed 2d 398, 100 S Ct 1759 (footnote 

omitted). 

This historical review of Georgia 
criminal law is not intended as a bill 
of indictment calling the State to 
account for past transgressions. Cita- 

tion of past practices does not justify 

the automatic condemnation of cur- 

rent ones. But it would be unrealis- 
tic to ignore the influence of history 

in assessing the plausible implica- 

tions of McCleskey’s evidence. 

“(Americans share a historical expe- 

rience that has resulted in individu- 

als within the culture ubiquitously 

attaching a significance to race that 

is irrational and often outside their 

awareness.” Lawrence, The Id, The 

Ego, and Equal Protection: Reckon- 

ing With Unconscious Racism, 39 

Stan L Rev 327 (1987). See generally 
id., at 328-344 (describing the psy- 

chological dynamics of unconscious 
racial motivation). As we said in 

Rose v Mitchell: 

“[Wle . . . cannot deny that, 114 

years after the close of the War 

Between the States and nearly 100 

years after Strauder, racial and 

other forms of discrimination still 

remain a fact of life, in the admin- 

istration of justice as in our soci- 

  

 



  
    

McCLESKEY v KEMP 
95 L Ed 2d 262 

ety as a whole. Perhaps today that 
discrimination takes a form more 
subtle than before. But it is not 
less real or pernicious.” 443 US 
545, 5568-559, 61 L Ed 2d 739, 99 S 
Ct 2993 (1979). 

The ongoing influence of history is 
acknowledged, as the majority ob- 
serves, by our * ‘unceasing efforts’ to 
eradicate racial prejudice from our 
criminal justice system.” Ante, at 

» 95 L Ed 2d 290 (quoting Bat- 
son v Kentucky, 476 US y m— 
90 L Ed 2d 69, 106 S Ct 1712 (1986). 
These efforts, however, signify not 
the elimination of the problem but 
its persistence. Our cases reflect a 
realization of the myriad of opportu- 
nities for racial considerations to 
influence criminal proceedings: in 
the exercise of peremptory chal- 
lenges, Batson v Kentucky, supra; in 
the selection of the grand jury, Vas- 
quez v Hillery, 474 US 254, 88 L Ed 
2d 598, 106 S Ct 617 (1986); in the 
selection of the petit jury, Whitus v 
Georgia, 385 US 545, 17 L. Ed 2d 
599, 87 S Ct 643 (1967); in the exer- 
cise of prosecutorial discretion, 
Wayte v United States, 470 US 598, 

  

  

84 L Ed 2d 547, 105 S Ct 1524 (1985); 
in the conduct of argument, Don- 
nelly v DeChristoforo, 416 US 637, 
40 L Ed 2d 431, 94 S Ct 1868 (1974); 
and in the conscious or unconscious 
bias of jurors, Turner v Murray, 476 
US —, 90 L Ed 2d 27, 106 S Ct 
1683 (1986), Ristaino v Ross, 424 US 
589, 47 L Ed 2d 258, 96 S Ct 1017 
(1976). 

The discretion afforded prose- 
cutors and jurors in the Georgia 
capital-sentencing system creates 
such opportunities. No guidelines 
govern prosecutorial decisions to 
seek the death penalty, and Georgia 
provides juries with no list of aggra- 
vating and mitigating factors, nor 
any standard for balancing them 
against one another. Once a jury 
identifies one aggravating factor, it 
has complete discretion in choosing 
life or death, and need not articulate 
its basis for selecting life imprison- 
ment. The Georgia sentencing sys- 
tem therefore provides considerable 
opportunity for racial considerations, 
however subtle and unconscious, to 
influence charging and sentencing 
decisions.? 

  

9. The Court contends that it is inappropri- 
ate to take into account the wide latitude 
afforded actors in the Georgia capital sentenc- 
ing system, since “[wle have held that discre- 
tion in a capital-punishment system is neces- 
sary to satisfy the Constitution,” ante, at 
—— n 31, 95 L Ed 2d ——, and “no sugges- 
tion is made as to how greater ‘rationality’ 
could be achieved under any type of statute 
that authorizes capital punishment.” Ibid. 
The first point is true, but of course the Court 
struck down the death penalty in Furman v 
Georgia, 408 US 238, 33 L Ed 2d 346, 92 S Ct 
2726 (1972) because the sentencing systems 
before it provided too much discretion. Since 
Gregg v Georgia, 428 US 153, 49 L. Ed 2d 859, 
96 S Ct 2909 (1976), the Court's death penalty 
jurisprudence has rested on the premise that 
it is possible to establish a system of guided 
discretion that will both permit individualized 
moral evaluation and prevent impermissible 
considerations from being taken into account. 

As Justice Blackmun has persuasively demon- 
strated, post, at ——, 95 L Ed 2d ——, Geor- 
gia provides no systematic guidelines for pros- 
ecutors to utilize in determining for which 

defendants the death penalty should be 
sought. Furthermore, whether a State has 
chosen an effective combination of guidance 
and discretion in its capital-sentencing system 

as a whole cannot be established in the ab- 
stract, as the Court insists on doing, but must 
be determined empirically, as the Baldus 
study has done. 

With respect to the Court’s criticism that 
McCleskey has not shown how Georgia could 
do a better job, supra, at —, 95 L Ed 2d 
———, once it is established that the particular 
system of guided discretion chosen by a State 
is not achieving its intended purpose, the 
burden is on the State, not the defendant, to 
devise a more rational system if it wishes to 
continue to impose the death penalty. 

3056 

 



| 

1 1 

| 

   

‘concern, 476 US, at 

History and its continuing legacy 
thus buttress the probative force of 
McCleskey’s statistics. Formal dual 
criminal laws may no longer be in 
effect, and intentional discrimination 
may no longer be prominent. None- 
theless, as we acknowledged in 
Turner, “subtle, less consciously held 

continue to be of 
, 90 L Ed 2d 

'27, 106 S Ct 1683, and the Georgia 
system gives such attitudes consider- 
able room to operate. The conclu- 

racial attitudes” 
  

gions drawn from McCleskey’s statis- 

| 

| 1 
| 

"'tical evidence are therefore consis- 
tent with the lessons of social experi- 
ence.’ 

The majority thus misreads our 
Eighth Amendment jurisprudence in 
‘concluding that McCleskey has not 
demonstrated a degree of risk suffi- 

' cient to raise constitutional concern. 

The determination of the signifi- 
cance of his evidence is at its core an 

. exercise in human moral judgment, 
not a mechanical statistical analysis. 
It: must first and foremost be in- 
formed by awareness of the fact that 
death is irrevocable, and that as a 
result “the qualitative difference of 
death from all other punishments 
requires a greater degree of scrutiny 
of the capital sentencing determina- 

. tion.” California v Ramos, 463 US 
992, 998-999, 77 L Ed 2d 1171, 103 S 
Ct 3446 (1983). For this reason, we 

' have demanded a uniquely high de- 
gree of rationality in imposing the 
death penalty. A capital-sentencing 
system in which race more likely 
than not plays a role does not meet 
this standard. It is true that every 
nuance of decision cannot be statisti- 
cally captured, nor can any individ- 
ual judgment be plumbed with abso- 
lute certainty. Yet the fact that we 

y! 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

must always act without the illumi- 
nation of complete knowledge cannot 
induce paralysis when we confront 
what is literally an issue of life and 
death. Sentencing data, history, and 
experience all counsel that Georgia 
has provided insufficient assurance 
of the heightened rationality we 
have required in order to take a 
human life. 

IV 

The Court cites four reasons for 
shrinking from the implications of 
McCleskey’s evidence: the desirabil- 
ity of discretion for actors in the 
criminal-justice system, the exis- 
tence of statutory safeguards against 
abuse of that discretion, the poten- 
tial consequences for broader chal- 
lenges to criminal sentencing, and 
an understanding of the contours of 
the judicial role. While these con- 
cerns underscore the need for sober 
deliberation, they do not justify re- 
jecting evidence as convincing as 
McCleskey has presented. 

The Court maintains that petition- 
er’s claim “is antithetical to the fun- 
damental role of discretion in our 
criminal justice system.” Ante, at 
——, 95 L Ed 2d ——. It states that 

“[wlhere the discretion that is funda- 
mental to our criminal process is 
involved, we decline to assume that 
what is unexplained is invidious.” 
Ante, at —, 95 L Ed 2d —. 

Reliance on race in imposing capi- 
tal punishment, however, is antithet- 

ical to the very rationale for grant- 
ing sentencing discretion. Discretion 
is a means, not an end. It is be- 
stowed in order to permit the sen- 
tencer to “trea[t] each defendant in 
a capital case with that degree of   

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McCLESKEY v KEMP 
95 L Ed 2d 262 

respect due the uniqueness of the 
individual.” Lockett v Ohio, 438 US 
686, 605, 57 L. Ed 2d 973, 98 S Ct 
2954, 9 Ohio Ops 3d 26 (1978). The 
decision to impose the punishment 
of death must be based on a “partic- 
ularized consideration of relevant 
aspects of the character and record 
of each convicted defendant.” Wood- 
son v North Carolina, 428 US, at 
303, 49 L Ed 2d 944, 96 S Ct 2978. 
Failure to conduct such an individu- 
alized moral inquiry “treats all per- 
sons convicted of a designated of- 
fense not as unique individual hu- 
man beings, but as members of a 
faceless, undifferentiated mass to be 
subjected to the blind infliction of 
the penalty of death.” Id., at 304, 49 
L Ed 2d 944, 96 S Ct 2978. 

Considering the race of a defen- 
dant or victim in deciding if the 
death penalty should be imposed is 
completely at odds with this concern 
that an individual be evaluated as a 
unique human being. Decisions influ- 
enced by race rest in part on a cate- 
gorical assessment of the worth of 
human beings according to color, 
insensitive to whatever qualities the 
individuals in question may possess. 
Enhanced willingness to impose the 
death sentence on black defendants, 
or diminished willingness to render 
such a sentence when blacks are 
victims, reflects a devaluation of the 
lives of black persons. When con- 
fronted with evidence that race 
more likely than not plays such a 
role in a capital-sentencing system, 
it is plainly insufficient to say that 
the importance of discretion de- 
mands that the risk be higher before 
we will act—for in such a case the 
very end that discretion is designed 
to serve is being undermined. 

Our desire for individualized 
moral judgments may lead us to 

accept some inconsistencies in sen- 
tencing outcomes. Since such deci- 
sions are not reducible to mathemat- 
ical formulae, we are willing to as- 
sume that a certain degree of varia- 
tion reflects the fact that no two 
defendants are completely alike. 
There is thus a presumption that 
actors in the criminal-justice system 
exercise their discretion in responsi- 
ble fashion, and we do not automati- 
cally infer that sentencing patterns 
that do not comport with ideal ra- 
tionality are suspect. 

As we made clear in Batson Vv 
Kentucky, 476 US » 90 L Ed 2d 
69, 106 S Ct 1712 (1986), however, 
that presumption is rebuttable. Bat- 
son dealt with another arena in 
which considerable discretion tradi- 
tionally has been afforded, the exer- 
cise of peremptory challenges. Those 
challenges are normally exercised 
without any indication whatsoever 
of the grounds for doing so. The 
rationale for this deference has been 
a belief that the unique characteris- 
tics of particular prospective jurors 
may raise concern on the part of the 
prosecution or defense, despite the 
fact that counsel may not be able to 
articulate that concern in a manner 
sufficient to support exclusion for 
cause. As with sentencing, therefore, 
peremptory challenges are justified 
as an occasion for particularized de- 
terminations related to specific indi- 
viduals, and, as with sentencing, we 
presume that such challenges nor- 
mally are not made on the basis of a 
factor such as race. As we said in 
Batson, however, such features do 
not justify imposing a “crippling 
burden of proof”, id.,, at ——, 90 L 
Ed 2d 69, 106 S Ct 1712, in order to 
rebut that presumption. The Court 
in this case apparently seeks to do 
Just that. On the basis of the need 

  

307



J | 

   
. for individualized decisions, it rejects 
evidence, drawn from the most so- 
phisticated capital-sentencing analy- 
sis ever performed, that reveals that 
race more likely than not infects 

. capital-sentencing decisions. The 
Court’s position converts a rebutta- 
ble presumption into a virtually con- 
clusive one. 

The Court also declines to find 
'McCleskey’s evidence sufficient in 
view of “the safeguards designed to 
minimize racial bias in the [capital 
sentencing] process.” Ante, at —, 
95 L Ed 2d ——. In Gregg v Georgia, 
428 US, at 226, 49 L Ed 2d 859, 96 S 

'Ct 2909, the Court rejected a facial 
' challenge to the Georgia capital sen- 
. tencing statute, describing such a 
challenge as based on “simply an 

assertion of lack of faith” that the 
"' gystem could operate in a fair man- 

ner.” (White, J., concurring). Justice 
White observed that the claim that 
prosecutors might act in an arbi- 

trary fashion was “unsupported by 
“any facts”, and that prosecutors 
‘must be assumed to exercise their 
charging ' duties properly “[a]bsent 

. facts to the contrary.” Id., at 225, 49 
L Ed 2d 859, 96 S Ct 2909. It is clear 
that Gregg bestowed no permanent 
approval on the Georgia system. It 

simply 'held that the State’s statu- 
tory safeguards were assumed suffi- 
cient to channel discretion without 
evidence otherwise. 

It has now been over 13 years 
since Georgia adopted the provisions 
upheld in Gregg. Professor Baldus 
and his colleagues have compiled 
data on almost 2500 homicides com- 

mitted during the period 1973-1979. 
They have taken into account the 

. influence of 230 nonracial variables, 
using a multitude of data from the 
State itself, and have produced strik- 
ing evidence that the odds of being 

308 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

sentenced to death are significantly 
greater than average if a defendant 
is black or his or her victim is white. 
The challenge to the Georgia system 
is not speculative or theoretical; it is 
empirical. As a result, the Court 
cannot rely on the statutory safe- 
guards in discounting McCleskey’s 
evidence, for it is the very effective- 
ness of those safeguards that such 
evidence calls into question. While 
we may hope that a model of proce- 
dural fairness will curb the influence 
of race on sentencing, “we cannot 

simply assume that the model works 
as intended; we must critique its 
performance in terms of its results.” 
Hubbard, “Reasonable Levels of Ar- 
bitrariness” in Death Sentencing 
Patterns: A Tragic Perspective on 
Capital Punishment, 18 UC Davis L 
Rev 1113, 1162 (1985). 

The Court next states that its un- 
willingness to regard the petitioner’s 
evidence as sufficient is based in 
part on the fear that recognition of 
McCleskey’s claim would open the 
door to widespread challenges to all 
aspects of criminal sentencing. Ante, 
at —, 95 LL Ed 2d ——. Taken on 
its face, such a statement seems to 
suggest a fear of too much justice. 
Yet surely the majority would ac- 
knowledge that if striking evidence 
indicated that other minority 
groups, or women, or even persons 
with blond hair, were disproportion- 
ately sentenced to death, such a 
state of affairs would be repugnant 
to deeply rooted conceptions of fair- 
ness. The prospect that there may be 
more widespread abuse than McCles- 
key documents may be dismaying, 
but it does not justify complete abdi- 
cation of our judicial role. The Con- 
stitution was framed fundamentally 
as a bulwark against governmental 
power, and preventing the arbitrary 

  
  

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McCLESKEY v KEMP 
95 L Ed 2d 262 

administration of punishment is a 
basic ideal of any society that pur- 
ports to be governed by the rule of 
law. 10 

In fairness, the Court’s fear that 
McCleskey’s claim is an invitation to 
descend a slippery slope also rests on 
the realization that any humanly 
imposed system of penalties will ex- 
hibit some imperfection. Yet to re- 
ject McCleskey’s powerful evidence 
on this basis is to ignore both the 
qualitiatively different character of 
the death penalty and the particular 
repugnance of racial discrimination, 
considerations which may properly 
be taken into account in determin- 
ing whether various punishments 
are “cruel and unusual.” Further. 
more, it fails to take account of the 
unprecedented refinement and 
strength of the Baldus study. 

It hardly needs reiteration that 
this Court has consistently acknowl- 
edged the uniqueness of the punish- 
ment of death. “Death, in its final- 
ity, differs more from life imprison- 
ment than a 100-year prison term 
differs from one of only a year or 
two. Because of that qualitiative dif- 
ference, there is a corresponding dif- 
ference in the need for reliability in 
the determination that death is the 
appropriate punishment.” Woodson, 
428 US, at 305, 49 L Ed 2d 944, 96 S 
Ct 2978. Furthermore, the relative 
interests of the state and the defen- 
dant differ dramatically in the death 

penalty context. The marginal bene- 
fits accruing to the state from ob- 
taining the death penalty rather 
than life imprisonment are consider- 
ably less than the marginal differ- 
ence to the defendant between death 
and life in prison. Such a disparity is 
an additional reason for tolerating 
scant arbitrariness in capital sen- 
tencing. Even those who believe that 
society can impose the death penalty 
in a manner sufficiently rational to 
Justify its continuation must ac- 
knowledge that the level of rational- 
ity that is considered satisfactory 
must be uniquely high. As a result, 
the degree of arbitrariness that may 
be adequate to render the death pen- 
alty “cruel and unusual” punish- 
ment may not be adequate to invali- 
date lesser penalties. What these 
relative degrees of arbitrariness 
might be in other cases need not 
concern us here; the point is that 
majority’s fear of wholesale invalida- 
tion of criminal sentences is un- 
founded. 

The Court also maintains that ac- 
cepting McCleskey’s claim would 
pose a threat to all sentencing be- 
cause of the prospect that a correla- 
tion might be demonstrated between 

. sentencing outcomes and other per- 
sonal characteristics. Again, such a 
view is indifferent to the considera- 
tions that enter into a determination 
of whether punishment is “cruel and 
unusual.” Race is a consideration 

  
10. As Maitland said of the provision of the 

Magna Carta regulating the discretionary im- 
position of fines, “[vlery likely there was no clause in Magna Carta more grateful to the mass of the people.” F. Maitland, Pleas of the Crown For the County of Gloucester xxxiv 
(1884). In our own country, the point is under- scored by Patrick Henry’s remarks in support of the adoption of a Bill of Rights: 
“Congress, from their general powers, may 
fully go into business of human legislation. 

They may legislate, in criminal cases, from 
treason to the lowest offence—petty larceny. 
They may define crimes and prescribe punish- 
ments. In the definition of crimes, I trust they 
will be directed by what wise representatives 
ought to be governed by. But when we come 
to punishments, no latitude ought to be left, 
nor dependence put on the virtue of represen- 
tatives.” 3 J. Elliot’s Debates on the Constitu- 
tion 447 (1854). 

309  



   
whose influence is expressly consti- 
tutionally proscribed. We have ex- 
pressed a moral commitment, as em- 
bodied in our fundamental law, that 
this specific characteristic should not 
be the basis for allotting burdens 
and benefits. Three constitutional 

.amendments, and numerous stat- 

utes, have been prompted specifi- 
cally by the desire to address the 
effects of racism. “Over the years, 
this Court has consistently repudi- 

ated ‘(d]istinctions between citizens 
solely because of their ancestry’ as 
being ‘odious to a free people whose 
institutions are founded upon the 
doctrine of equality.’ ” Loving v Vir- 

ginia, 388 US 1, 11, 18 L Ed 2d 1010, 
87 S Ct 1817 (1967) (quoting Hiraba- 
yashi v United States, 320 US 81, 
100, 87 L Ed 1774, 63 S Ct 1375 
(1943)). Furthermore, we have ex- 

plicitly, acknowledged the illegiti- 
macy of race as a consideration in 

' capital sentencing, Zant v Stephens, 
462 US 862, 885, 77 L Ed 2d 235, 103 
SS Ct 2733 (1983). That a decision to 
"impose the death penalty could be 

influenced by race is thus a particu- 
. ''larly repugnant prospect, and evi- 
dence that race may play even a 

modest role in levying a death sen- 
‘tence should be enough to character- 
ize that sentence as “cruel and unu- 

sual.” | 

' Certainly, a factor that we would 
regard as morally irrelevant, such as 
hair color, at least theoretically 

could be associated with sentencing 
' results to such an extent that we 
would regard as arbitrary a system 
in which that factor played a signifi- 

cant role. As I have said above, how- 

ever, supra, at —, 95 L Ed 2d —, 

the evaluation of evidence suggest- 
ing such a correlation must be in- 

formed not merely by statistics, but 

by history and experience. One could 

310 

U.S. SUPREME COURT REPORTS 

  

95 L Ed 2d 

hardly contend that this nation has 
on the basis of hair color inflicted 
upon persons deprivation compara- 
ble to that imposed on the basis of 
race. Recognition of this fact would 
necessarily influence the evaluation 
of data suggesting the influence of 
hair color on sentencing, and would 
require evidence of statistical correl- 
ation even more powerful than that 
presented by the Baldus study. 

Furthermore, the Court’s fear of 
the expansive ramifications of a 
holding for McCleskey in this case is 
unfounded because it fails to recog- 
nize the uniquely sophisticated na- 
ture of the Baldus study. McCleskey 
presents evidence that is far and 
away the most refined data ever 
assembled on any system of punish- 
ment, data not readily replicated 
through casual effort. Moreover, that 
evidence depicts not merely arguable 
tendencies, but striking correlations, 
all the more powerful because non- 
racial explanations have been elimi- 
nated. Acceptance of petitioner’s evi- 
dence would therefore establish a 
remarkably stringent standard of 
statistical evidence unlikely to be 
satisfied with any frequency. 

The Court’s projection of apocalyp- 

tic consequences for criminal sen- 
tencing is thus greatly exaggerated. 

The Court can indulge in such spec- 
ulation only by ignoring its own ju- 

risprudence demanding the highest 

scrutiny on issues of death and race. 

As a result, it fails to do justice to a 

claim in which both those elements 

are intertwined—an occasion calling 

for the most sensitive inquiry a 

court can conduct. Despite its accep- 

tance of the validity of Warren Mc- 

Cleskey’s evidence, the Court is will- 

ing to let his death sentence stand 

because it fears that we cannot suc- 

cessfully define a different standard 

    

 



    

  

McCLESKEY v KEMP 
95 L Ed 2d 262 

for lesser punishments. This fear is 
baseless. 

Finally, the Court justifies its re- 
jection of McCleskey’s claim by cau- 
tioning against usurpation of the 
legislatures’ role in devising and 
monitoring criminal punishment. 
The Court is, of course, correct to 
emphasize the gravity of constitu- 
tional intervention and the impor- 
tance that it be sparingly employed. 
The fact that “[c]apital punishment 
is now the law in more than two 
thirds of our States”, ante, at y 
95 LL Ed 2d ——, however, does not 

diminish the fact that capital pun- 
ishment is the most awesome act 
that a State can perform. The judi- 
ciary’s role in this society counts for 
little if the use of governmental 
power to extinguish life does not 
elicit close scrutiny. It is true that 
society has a legitimate interest in 
punishment. Yet, as Alexander 
Bickel wrote: 

  

“It is a premise we deduce not 
merely from the fact of a written 
constitution but from the history 
of the race, and ultimately as a 
moral judgment of the good soci- 
ety, that government should serve 
not only what we conceive from 
time to time to be our immediate 
material needs but also certain 
enduring values. This in part is 
what is meant by government un- 
der law.” A. Bickel, The Least 
Dangerous Branch 24 (1962) 

Our commitment to these values 
requires fidelity to them even when 
there is temptation to ignore them. 
Such temptation is especially apt to 
arise in criminal matters, for those 
granted constitutional protection in 
this context are those whom society 
finds most menacing and opprobious. 
Even less sympathetic are those we 

consider for the sentence of deat 
for execution “‘is a way of saying 
‘You are not fit for this world, ta 
your chance elsewhere.’” Furma 
408 US, at 290, 33 L Ed 2d 346, 92 
Ct 2726 (Brennan, J., concurring 
(quoting Stephen, Capital Punis 
ments, 69 Fraser's Magazine 75 
763 (1864)). 

For these reasons, “(tlhe method 
we employ in the enforcement of ou 
criminal law have aptly been calle 
the measures by which the qualit 
of our civilization may be judged. 
Coppedge v United States, 369 U 
438, 449, 8 L Ed 2d 21, 82 S Ct 91 
(1962). Those whom we would banis 
from society or from the huma 
community itself often speak in to 
faint a voice to be heard above soc 
ety’s demand for punishment. It i 
the particular role of courts to hea 
these voices, for the Constitution dd 
clares that the majoritarian chor 
may not alone dictate the conditio 
of social life. The Court thus fulfills 
rather than disrupts, the scheme d 
separation of powers by closely scr 
tinizing the imposition of the deat 
penalty, for no decision of a societ 
is more deserving of the “sober seq 
ond thought.” Stone, The Commo 
Law in the United States, 50 Harv 
Rev 4, 25 (1936). 

Vv 

At the time our Constitution wa 
framed 200 years ago this yea 
blacks “had for more than a centur 
before been regarded as beings of a 
inferior order, and altogether unfi 
to associate with the white racd 
either in social or political relation 
and so far inferior, that they had n 
rights which the white man wa 
bound to respect.” Dred Scott 
Sandford, 19 How 393, 407, 15 L E 
691 (1857). Only 130 years ago, thi 

31 

 



    

  

     
    

   

   
   
    

   

          

   

ourt relied on these observations to 
deny American citizenship to blacks. 
bid. A mere three generations ago, 
his Court sanctioned racial segrega- 

tion, stating that “[i}f one race be 
inferior to 'the other socially, the 

onstitution of the United States 
annot put them upon the same 

plane.” Plessy v Ferguson, 163 US 
537, 562, 41 L Ed 256, 16 S Ct 1138 
(1896). 

‘ In more recent times, we have 

sought to free ourselves from the 
burden of this history. Yet it has 
been scarcely a generation since this 
Court’s first decision striking down 
racial segregation, and barely two 
decades since the legislative prohibi- 
tion of racial discrimination in ma- 
jor domains of national life. These 
have been honorable steps, but we 
cannot pretend that in three decades 
we have completely escaped the grip 
of an historical legacy spanning cen- 
turies. Warren McCleskey’s evidence 
confronts us with the subtle and 
persistent influence of the past. His 
message is a disturbing one to a 
society that has formally repudiated 
racism, and a frustrating one to a 
Nation accustomed to regarding its 
destiny as the product of its own 
will. Nonetheless, we ignore him at 
our peril, for we remain imprisoned 
by the past as long as we deny its 
influence in the present. 

. It is tempting to pretend that mi- 
norities on death row share a fate in 
no way connected to our own, that 
our treatment of them sounds no 
echoes beyond the chambers in 
which they die. Such an illusion is 
ultimately corrosive, for the rever- 
berations of injustice are not so eas- 
ily confined. “The destinies of the 
two races in this country are indis- 
solubly linked together,” id., at 560, 

312 

U.S. SUPREME COURT REPORTS    95 L Ed 2d 

41 L Ed 256, 16 S Ct 1138 (Harlan, 
J., dissenting), and the way in which 
we choose those who will die reveals 
the depth of moral commitment 
among the living. 

The Court’s decision today will not 
change what attorneys in Georgia 
tell other Warren McCleskeys about 
their chances of execution. Nothing 
will soften the harsh message they 
must convey, nor alter the prospect 
that race undoubtedly will continue 
to be a topic of discussion. McCles- 
key’s evidence will not have ob- 
tained judicial acceptance, but that 
will not affect what is said on death 
row. However many criticisms of 
today’s decision may be rendered, 
these painful conversations will 
serve as the most eloquent dissents 
of all. 

Justice Blackmun, with whom 
Justice Marshall and Justice Ste- 
vens join and with whom Justice 
Brennan joins in all but Part IV-B, 
dissenting. 

The Court today sanctions the exe- 
cution of a man despite his presenta- 
tion of evidence that establishes a 
constitutionally intolerable level of 
racially based discrimination leading 
to the imposition of his death sen- 
tence. I am disappointed with the 
Court’s action not only because of its 
denial of constitutional guarantees 
to petitioner McCleskey individually, 
but also because of its departure 
from what seems to me to be well- 
developed constitutional jurispru- 
dence. 

Justice Brennan has thoroughly 
demonstrated, ante, that, if one as- 
sumes that the statistical evidence 
presented by petitioner McCleskey is 
valid, as we must in light of the 

  

  
 



  

  

    

Court of Appeals’ assumption,' there 
exists in the Georgia capital-sentenc- 
ing scheme a risk of racially based 
discrimination that is so acute that 
it violates the Eighth Amendment. 
His analysis of McCleskey’s case in 
terms of the Eighth Amendment is 
consistent with this Court’s recogni- 
tion that because capital cases in- 
volve the State’s imposition of a pun- 
ishment that is unique both in kind 
and degree, the decision in such 
cases must reflect a heightened de- 
gree of reliability under the Amend- 
ment’s prohibition of the infliction of 
cruel and unusual punishments. See 
Woodson v North Carolina, 428 US 
280, 305, 49 L Ed 2d 944, 96 S Ct 
2978 (1976) (plurality opinion). I 
therefore join Parts II through V of 
Justice Brennan’s dissenting opin- 
ion. 

Yet McCleskey’s case raises con- 
cerns that are central not only to 
the principles underlying the Eighth 
Amendment, but also to the princi- 
ples underlying the Fourteenth 
Amendment. Analysis of his case in 
terms of the Fourteenth Amendment 
is consistent with this Court’s recog- 
nition that racial discrimination is 
fundamentally at odds with our con- 
stitutional guarantee of equal pro- 
tection. The protections afforded by 
the Fourteenth Amendment are not 
left at the courtroom door. Hill v 
Texas, 316 US 400, 406, 86 L Ed 
1559, 62 S Ct 1159 (1942). Nor is 
equal protection denied to persons 
convicted of crimes. Lee v Washing- 
ton, 390 US 333, 19 L Ed 2d 1212, 88 
S Ct 994 (1968) (per curiam). The 
Court in the past has found that 

McCLESKEY v KEMP 
95 L Ed 2d 262 

racial discrimination within the 
criminal-justice system is particu- 
larly abhorrent: “Discrimination on 
the basis of race, odious in all as- 
pects, is especially pernicious in the 
administration of justice.” Rose v 
Mitchell, 443 US 545, 555, 61 L Ed 
2d 739, 99 S Ct 2993 (1979). Dispa- 
rate enforcement of criminal sanc- 
tions “destroys the appearance of 
justice and thereby casts doubt on 
the integrity of the judicial process.” 
Id., at 555-5566, 61 L Ed 2d 739, 99 S 
Ct 2993. And only last term Justice 
Powell, writing for the Court, noted: 
“Discrimination within the judicial 
system is most pernicious because it 
is ‘a stimulant to that race prejudice 
which is an impediment to securing 
to [black citizens] that equal justice 
which the law aims to secure to all 
others.’” Batson v Kentucky, 476 
US ——, ——, 90 L Ed 2d 69, 106 S 
Ct 1712 (1986), quoting Strauder v 
West Virginia, 100 US 303, 308, 25 LL 
Ed 664 (1880). 

Moreover, the legislative history of 
the Fourteenth Amendment reminds 
us that discriminatory enforcement 
of States’ criminal laws was a mat- 
ter of great concern for the drafters. 
In the introductory remarks to its 
Report to Congress, the Joint Com- 
mittee on Reconstruction, which re- 
ported out the Joint Resolution pro- 
posing the Fourteenth Amendment, 
specifically noted: “This deep-seated 
prejudice against color . . . leads to 
acts of cruelty, oppression, and mur- 
der, which the local authorities are 
at no pains to prevent or punish.” 
HR Jt Comm Rep No. 30, 39th Cong, 
1st Sess, p XVII (1866). Witnesses 

  

1. I agree with Justice Stevens’ position 
that the proper course is to remand this case 
to the Court of Appeals for determination of 
the validity of the statistical evidence pre- 
sented. Post, at ——, 95 L Ed 2d —-. Like 

Justice Stevens, however, I am persuaded 
that the Baldus study is valid and would 
remand merely in the interest of orderly pro- 
cedure. 

313 

 



  

   
   
   

   

  

    
   

   

    

   

        
   

  

   

    

   
    
     

    

US. SUPREME COURT REPORTS 95 L Ed 2d 

  

  

      
          

        
       

              
      

             
       

       

     

  

         

         

  

       

      

      

who testified before the Committee sentence reflected a constitutionally 
the 

resented accounts of criminal acts impermissible risk of racial discrimi- an 

of violence against black persons nation. The Court explains that Con 

that were not prosecuted despite evi- McCleskey’s evidence is too weak to equ 

dence as to the identity of the perpe- require rebuttal “because a legiti- “ix 

, trators? 
mate and unchallenged explanation 

adi 

: 
for the decision is apparent from the 

: tice 

Bo record: McCleskey committed an act tha 

nl i J 
for which the United States Consti- i 

oh tution and Georgia laws permit im- $ 

| 
p's 

IT) Ros 

'\ The Court today seems to give a position of the death penalty.” Ante, Ed 

new meaning to our recognition that at — 95 L Ed 2d 281. The Court Ge 

death is different. Rather than re- States that it will not infer a dis E 

| 

. . 

. quiring “a correspondingly greater criminatory purpose on the part of der 

§ degree of scrutiny of the capital sen- the state legislature because there cor 

tencing determination,” California v were legitimate reasons for the "iy 

‘Ramos, 463 US 992, 998-999, 77 L Ed Georgia Legislature to adopt and pri 

} od 1171, 103 S Ct 3446 (1983), the maintain capital punishment. Ante, wily 

© Court relies on the very fact that at , 95 L Ed 2d 282. 
us. 

this is a case involving capital pun- The Court’s assertion that the fact 617 

' ishment to apply a lesser standard of of McCleskey’s conviction under- cont 

scrutiny under the Equal Protection mines his constitutional claim is in- grou 

Clause. The Court concludes that consistent with a long and unbroken clad 

legitimate” explanations outweigh line of this Court’s case law. The def, 

McCleskey’s claim that his death Court on numerous occasions during 316 

i ' 19, See, e.g., HR Jt Comm Rep No. 30, 39th when that is known no action is taken against Ct 1 

id Cong, 1st Sess, pt II, p 25 (1866) (testimony of them. I believe a white man has never been tain 

i 1 George Tucker, Virginia attorney) (“They hung for murder in Texas, although it is the ing 

: have not any idea of prosecuting white men law”). 
anal 

for offenses against colored people; they do In Brown v Board of Education, 347 US crim 

ok Spprscials theres } Mo gt 30 Ase, 453001 0 873, 74 S Ct 686, 53 Ohio Ops darn 

yf mony of Roy 5 Capoy t Si Susan, 4736, 93 ALR2d 1180 (1954), this Court held | 

j Sass Sgt A Ey ee Ten that, despite the fact that the legislative his tem 

[ have never yet known a single case in which tory gm Burson Ameniment Indiesied Ed 

the local authorities or police or citizens made hay! ngress cid nop view racial ciscri 
: 

any attempt or exhibited any inclination to tion in public education as a specific target, note 

redress any of these wrongs or to protect such the Amendment nevertheless prohibited such 

; persons”); id. at 213 (testimony ot. dA discrimination. The Court today holds that eg 

Campbell) (although identities of men us ren though the Fourteenth Amendment was ho 

pected of killing two blacks known, no arrest aimed specifically at eradicating discrimina: phas 

or trial had occurred); id., pt III, p 141 (testi- tion in the enforcement of criminal sanctions | “and 

mony of Wagner Swayne) (“I have not known, allegations of such discrimination suppor “very 

after six months’ residence at the capital of by substantial evidence are not constitution: tom 

' the State, a single instance of a white man ally cognizable. But see Batson v Kentucky, e 

being convicted and hung or gent to the peni- 6 US —, — 90 L Ed 2d 69, 106 SQ So, 

1712 (1986) (allegations of racially discrimins ~ Henc 

   

       

    

   

inst a negro, while 
tentiary for crime aga tory exercise of peremptory challenges by 

    

      

    
     

     

    

   
   

    

   

   

many cases of crime warranting such punish- 

ment have been reported to me”); id., pt IV, p prosecutor subject to review under Four th 

76 (testimony of Maj. Gen. George A. Custer) teenth Amendment because “[e]xclusion 
; 

black citizens from service as jurors consti Lm 

- (it, is of weekly, if not of daily, occurrence 

that freedmen are murdered. . . . [Slometimes tutes a primary example of the evil the Fou 

it is hot known who the perpetrators are; but teenth Amendment was designed to cure”. 

314 

   



ER TT yoy 

McCLESKEY v KEMP 
95 L Ed 2d 262 

the past century has recognized that 
    

cutor’s decision to seek the death ni- an otherwise legitimate basis for a penalty. at conviction does not outweigh an The Court's reliance on legitimate to equal protection violation. In cases interests underlying the Georgia iti- where racial discrimination in the Legislature’s enactment of its capital on administration of the criminal-jus- punishment statute is likewise inap- he tice system is established, it has held propriate. Although that reasoning act that setting aside the conviction is may be relevant in a case involving sit the appropriate remedy. See, eg, a facial challenge to the constitu. me Rose v Mitchell, 443 US, at 559, 61 L tionality of a statute, it has no rele- ate, Ed 2d 739, 99 S Ct 2993; Whitus v vance in a case dealing with a chal- urt Georgia, 385 US 545, 549-550, 17 L lenge to the Georgia capital sentenc- dis- Ed 2d 599, 87 S Ct 643 (1967); Strau- ing system as applied in McCleskey’s ’ of der v West Virginia, supra. The e case. In Batson v Kentucky, supra, the 1 1 Court recently reaffirmed the Pro- we rejected such reasoning: “The priety of invalidating a conviction in 

    
   

    

    

    

    

   

    

   

   
   
    

   
   

d : Constitution requires . .. that we an order to vindicate federal constitu- ]ook beyond the face of the statute nte, tional rights. Vasquez v Hillery, 474 and also consider challenged US 254, 88 L Ed 2d 598, 106 S Ct selection practices to afford ‘protec- fact 617 (1986). Invalidation of a criminal tion against action of the State \der- conviction on federal constitutional through its administrative officers in 8 in- grounds does not necessarily pre- effecting the prohibited oken clude retrial and resentencing of the discrimination.’ ” 476 US, at —, 90 The defendant by the State. Hill v Texas, L Ed 2d 69, 106 S Ct 1712, quoting ring 316 US 400, 406, 86 L Ed 1559, 62 S Norris v Alabama, 294 US 587, 589, Ct 1159 (1942). The Court has main- 79 L Ed 1074, 55 S Ct 579 (1935). gainst tained a per se reversal rule reject- Fu ing application of harmless-error B : analysis in cases involving racial dis- In analyzing an equal protection 47 US crimination that “strikes at the fun- claim, a court must first determine io Ops damental values of our judicial sys- the nature of the claim and the sey tem and our society as a whole.” responsibilities of the state actors dicated ose v Mitchell, 443 US, at 556, 61 L involved to determine what showing rimina- Ed 2d 739, 99 S Ct 2993. We have is required for the establishment of target, noted that a conviction “in no Way a prima facie case. Castaneda v Par- ed such suggests that the discrimination did tida, 430 US 482, 493-494, 51 L Ed ds that SS not impermissibly infect” earlier 94 498 97 S Ct 1270 (1977). The rimind phases of the criminal prosecution Court correctly points out: “In its tions “and, consequently, the nature or broadest form, McCleskey’s claim of Ippo _ ¥ery existence of the proceedings to 
~ tome.” Vasquez v Hillery, 474 US, at 
=, 88 L Ed 2d 598, 106 S Ct 617. 

  

discrimination extends to every ac- 
tor in the Georgia capital sentencing 
process, from the prosecutor who crimings Hence, McCleskey’s conviction and sought the death penalty and the imposition of his death sentence jury that imposed the sentence, to By the jury do not suggest that dis- the State itself that enacted the cap- grimination did not impermissibly ital punishment statute and allows fect the earlier steps in the prose- it to remain in effect despite its #ution of his case, such as the prose- allegedly discriminatory  applica- 

315 

  

   
     

   

   
     
   

   



i 

! 

| 

  

tion.” Ante, at ——, 95 L Ed 2d 278. 

Having recognized the complexity of 

McCleskey’s claim, however, the 

Court proceeds to ignore a signifi- 

cant element of that claim. The 

Court treats the case as if it is lim- 

ited to challenges to the actions of 

two specific decisionmaking bodies— 

the petit jury and the state legisla- 

ture. Ante, at —, 95 L Ed 2d —. 

This ‘self-imposed restriction enables 

the Court to distinguish this case 

"I from the venire-selection cases and 

| 

| 

Title VII cases in which it long has 

accepted statistical evidence and has 

- provided an easily applicable frame- 

work for review. See e.g. Castaneda 

v Partida, supra; Bazemore Vv Friday, 

478 US —, 92 L Ed 2d 315, 106 S 

Ct 3000 (1986) (Brennan, J, for a 

unanimous Court concurring in 

part). Considering McCleskey’s claim 

in its entirety, however, reveals that 

the claim fits easily within that 

same framework. A significant as- 

‘pect of his claim is that racial fac- 

tors impermissibly affected numer- 

ous steps in the Georgia capital-sen- 

téncing ‘scheme between his indict- 

‘ment and the jury’s vote to sentence 

‘him to death. The primary decision- 

maker at each of the intervening 

U.S. SUPREME COURT REPORTS     95 L Ed 2d 

steps of the process is the prose- 

cutor, the quintessential state actor 

in a criminal proceeding? The Dis- 

trict Court expressly stated that 

there were “two levels of the system 

that matter to [McCleskey], the deci- 

sion to seek the death penalty and 

the decision to impose the death 

penalty.” 580 F Supp 338, 379-380 

(ND Ga 1984). 1 agree with this 

statement of McCleskey’s case. 

Hence, my analysis in this dissent- 

ing opinion takes into account the 

role of the prosecutor in the Georgia 

capital-sentencing system. I cer- 

tainly do not address all the alterna- 

tive methods of proof in the Baldus 

study. Nor do I review each step in 

the process which McCleskey chal- 

lenges. 1 concentrate on the deci- 

sions within the prosecutor’s office 

through which the State decided to 

seek the death penalty and, in par- 

ticular, the point at which the State 

proceeded to the penalty phase after 

conviction. This is a step at which 

the evidence of the effect of the ra- 

cial factors was especially strong, see 

Supplemental Exhibits (SE) 56, 57; 

Transcript of Federal Habeas Corpus 

Hearing (Tr) 894-926, but is ignored 

by the Court. 

  

8. The Court refers to the prosecutor’s role 

. in the capital-sentencing process without ana- 

lyzing the import of the statistical evidence 

concerning the steps of the process at which 

the prosecutor determines the future of the 

case. The Court recognizes that the prosecutor 

determines whether a case even will proceed 

to the penalty phase. If the prosecutor does 

not pursue the death penalty, a mandatory 

sentence of life imprisonment is imposed. See 

te, at ——, n 2, 95 L Ed 2d 273. It lists 

many of the factors that prosecutors take into 

account in making their decisions, ante, at 

— n 28, 95 L Ed 2d 288, and recognizes 

that in each case the prosecutor can decline 

to charge, or to offer a plea bargain, or to 

seek a death sentence, ante, at —, 95 L Ed 

24 —. It also notes that the Baldus study 

“found that prosecutors sought the death pen- 

316 

alty in 70% of the cases involving black de- 

fendants and white victims; 32% of the cases 

involving white defendants and white victims; 

156% of the cases involving black defendants 

and black victims; and 19% of the cases in- 

volving white defendants and black victims,” 

ante, at ——, 95 L Ed 2d 275. 

The Court relies heavily on its assertion 

that prosecutorial discretion should not be 

reviewed, ante, at —, — 95 L Ed 2d —, 

——, but elsewhere concedes that such discre- 

tion may not be exercised in a racially dis- 

criminatory manner, ante, at —, n 30, 95 L 

Ed 2d 289-290. It nowhere explains why this 

limitation on prosecutorial discretion does 

not require the same analysis that we apply 

in other cases involving equal protection chal- 

lenges to the exercise of prosecutorial discre- 

tion. See e.g., Batson v Kentucky, supra. 

  
  

ing if 
persua 
tive in 
rect ex 

Village 

 



   

  

ck de- 
cases 

ictims; 
ndants 
ges in- 

tims,” 

sertion 

not be 
d _——) 

discre- 
lly dis- 

), 95 L 
hy this 

n does 

> apply 
n chal- 
discre- 

A. 

  

II 

A 

equal protection violation 
prove the existence of purposeful discrimination. Washington v Davis, 426 US 229, 239-240, 48 L Ed 2d 597, 96 S Ct 2040 (1976); Whitus v Geor- gia, 385 US, at 550, 17 L Ed 2d 599, 87 S Ct 643. He may establish a prima facie case of purposeful dis- crimination “by showing that the totality of the relevant facts gives rise to an inference of discrimina- tory purpose.” Batson v Kentucky, 476 US, at » 90 L Ed 2d 69, 106 S Ct 17125 Once the defendant es- tablishes a prima facie case, the bur- den shifts to the prosecution to rebut that case. “The State cannot meet this burden on mere general asser- tions that its officials did not dis- criminate or that they properly per- formed their official duties.” Ibid. The State must demonstrate that 

        

4. The use of the prima facie case method to structure proof in cases charging racial discrimination is appropriate because it “pro- gressively . . . sharpen(s] the inquiry into the elusive factual question of intentional dis- crimination.” Texas Dept. of Community Affairs v Burdine, 450 US 248, 255, n 8, 67 L Ed 2d 207, 101 S Ct 1089 (1981); see McCles- key v Kemp, 753 F2d 877, 912 (CA11 1985) (Johnson, J., dissenting in part and concur- ring in part) (where the “prosecutor has con- siderable discretion and the jury has bounded but irreducible discretion,” the discretion could easily mask conscious or unconscious racial discrimination and indirect methods of proof are therefore required as outlined in Washington v Davis, 426 US 229, 241-242, 48 L Ed 2d 597, 96 S Ct 2040 (1976), and Arling- ton Heights v Metropolitan Housing Develop- ment Corp., 429 US 252, 266, n 13, 50 L Ed 2d 450, 97 S Ct 555 (1977). 

8. The Court recently explained: “In decid- ing if the defendant has carried his burden of persuasion, a court must undertake ‘a sensi- tive inquiry into such circumstantial and di- rect evidence of intent as may be available.’ Village of Arlington Heights v Metropolitan 

A criminal defendant alleging an 
must 

a — 

McCLESKEY v KEMP 
95 L Ed 2d 262 

the challenged effect was due to “ ‘permissible racially neutral selec- tion criteria.’ ” Ibid., quoting Alexan- der v Louisiana, 405 US 625, 632, 31 
L Ed 2d 536, 92 S Ct 1221 (1972). 

Under Batson v Kentucky and the framework established in Castaneda v Partida, McCleskey must meet a 
three-factor standard. First, he must establish that he is a member of a group “that is a recognizable, dis- tinct class, singled out for different treatment.” 430 US, at 494, 51 LL Ed 2d 498, 97 S Ct 1272. Second, he must make a showing of a substan- tial degree of differential treatment.® Third, he must establish that the allegedly discriminatory procedure is 

susceptible to abuse or is not racially neutral. Ibid. 

B 

There can be no dispute that Me- ett —————— eee 
Housing Development Corp. 429 US 252, 266, 50 L Ed 2d 450, 97 S Ct 555 (1977). Circum- stantial evidence of invidious intent may in- clude proof of disproportionate impact. Wash- ington v Davis, 426 US, at 242, 48 L Ed 2d 897, 96 S Ct 2040. We have observed that under some circumstances proof of discrimi- natory impact ‘may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.’ Ibid.” Batson v Kentucky, 476 US, at —, 90 L Ed 2d 69, 106 S Ct 1712. 

6. In Castaneda, we explained that in jury- selection cases where the criminal defendant is attempting to prove that there was discrim- inatory exclusion of potential jurors we apply the “rule of exclusion” method of proof. 430 US, at 494, 51 L Ed 2d 498, 97 S Ct 1272. The underlying rationale is that “(i}f a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process.” Id., at 494, n 13, 51 L Ed 2d 498, 97 S Ct 1272. 

317  



   

      

       

       

          

     
     

fit Bre SL Cl 
0 BO I 7 A MAES 

| ny 
I 

——_ 

  

3 | 
wil.» - 

U.S. SUPREME COURT REPORTS 95 L Ed 2d 

Cleskey has made the requisite Ct 1916 (1985). The Court of Appeals 

   

   

        

        
       

        
       

        
      
      

    

      

      

        
    

      

      

      

3 showing under the first prong of the assumed the validity of the Baldus g 

standard. The Baldus study demon- study and found that it “showed W 

strates that black persons are a dis- that systemic and substantial dispar- tr 

1 tinct group that are singled out for ities existed in the penalties imposed ly 

¥ different treatment in the Georgia upon homicide defendants in Geor- st 

capital-sentencing system. The Court gia based on the race of the homi- al 

acknowledges, as it must, That the cide victim, that the disparities ex fa 

raw statistics included in the Baldus isted at a less substantial rate in be 

| study and presented by petitioner death sentencing based on race of a 

indicate that it 18 much less likely defendants, and that the factors of li] 

that a death sentence will result race of the victim and defendant 
Wi 

from a ‘murder of a black person were at work in Fulton County.” 753 ch 

than from a murder of a white per- F2d 877, 895 (CA11 1985). The ques Pe 

son. Ante, at — 95 L Ed 2d — tion remaining therefore is at wha Eke 

White-victim cases are nearly 11 point does that disparity become m 

times more likely to yield a death constitutionally unacceptable. 
th 

sentence than are black-victim cases. Turner V Murray, 476 US — — 
kil 

* SE 46. The raw figures also indicate n 8, 90 L Ed od 27, 106 S Ct 1683 he 

that even within the group of defen- (1986) (plurality opinion). Recogniz- ou 

dants who are convicted of killing ing that additional factors can enter Cl 

white persons and are thereby more into the decisionmaking process that 080 

likely to receive a death sentence, yields a death sentence, the authors ou 

black defendants are more likely of the Baldus study collected data bls 

than white defendants to be sen- concerning the presence of other rel i. 

tenced to death. SE 47. evant factors in homicide cases in Bi 

    

With respect to the second prong, 

McCleskey must prove that there is van 

a substantial likelihood that his analyz 
| 

would permit them to ascertain the 

death sentence is due to racial fac- 

tors. See Hunter Vv Underwood, 471 independent effect of the racial 

us 222, 228, 85 L Ed od 222, 105 S tors.’ 

    

     
    

        

      
   

    

   
   

  

   

           

  

  
The Court of Appeals found the evidenes 

presented by Maxwell incomplete, not din 

relevant to his individual claim, and sté 

cally insufficient. McCleskey’s evidence, 

Court states that it as- 

sumes the validity of the Baldus study for 

purposes of its analysis, because of its detailed 

discussion of the District Court’s reasons for 

rejecting its validity I am compelled to record ever, is of such a different level of soph 

h the District Court’s tion and detail that it simply cannot be! 

, my disagreement wit 

reasoning. As a member of the United States jected on those grounds. Unlike the 

Court of Appeals, 1 was confronted in 1968 presented by Maxwell, which did not 

with a challenge to the constitutionality of a data from the jurisdiction in which be 

State’s capital-sentencing system based on tried and sentenced, McCleskey’s 

allegations of racial discrimination supported includes data from the relevant ju 

by statistical evidence. Writing for a panel of Whereas the analyses presented by 

the court, I rejected that challenge for rea- did not take into account a significant 

' sons similar to those espoused by the Court of variables and were pased on a un 
resented by 

today. Maxwell v Bishop, 398 F2d 138 (CA8 55 cases, the analyses Pp 

1968), vacated and remanded, sua sponte, by keys evidence take into account m 

ai below, 398 400 variables and are based on data @ 

the Court on grounds not r 

US 262, 26 L Ed 2d 221, 90 S Ct 1578 (1970) ing all offenders arrested for homSE 

Georgia from 1973 through 1978, a 8 

(per curiam). 

318 

1. Although the 

  

       

   

    

       
    
    
    
    

      

    

          

   

          

   

   

           

    

   

   

  

   

  

   

   

  

    
     

      
    

        

   



   d 2d 

peals 
aldus 
owed 
spar- 
posed 
Geor- 

homi- 
oS exX- 
ite in 
ce of 
ors of 
ndant 
7 753 

> ques: 

t what 

yecome 

    

   

      

    

   

                

   

  

   

    

   

   
    

out of every 34 defendants in Me. cerning 
Bot have been sentenced to be exe. ing process, euted if their victims had been cutor’s decision as 
wvidence of the constitutionally sig- established that the r nificant effect of racial factors in the 

Mclleskey’s proof that the race of has been convicted o 

   

  

Sentence than is the factor whether $e defendant was a prime mover in 1 homicide. Petitioner's Exhibit posed or to accept th 8 82» 

actor 18 nearly as crucial 

  

   

      

   

  

    

  

McCLESKEY v KEMP 
95 L Ed 2d 262 

McCleskey demonstrated the de- crime." Ibid. See G gree to which his death sentence 10-30(b) (1982), an was affected by racial factors by in- Ed 2d 273-274. The Court has noted troducing multiple-regression ana- elsewhere that Georgia could not lyses that explain how much of the attach “the ‘aggravating’ label to factors that are constitutionally im- analyzed is attributable to the racial permissible or totally irrelevant to factors, McCleskey established that the sentencing process, such as for because he was charged with killing example the race, religion, or politi- i i cal affiliation - of the defendant.” Zant v Stephens, 462 US 862, 885, would have been had he been 77 I, Eq 24 235, 103 S Ct 2733 (1983). charged with killing a black person. What we have held to be unconstitu- 
Petitioner’s Exhibit DB 82. McCles- tional if included in the language of key also demonstrated that jt vas the statute, surely cannot be consti. more likely than not that the fact tutional because it is a de facto char- that the victim he was charged with acteristic of the system. killing was white determined that received a sentence of death—2() McCleskey 

a Code Ann § 17- 
te, at — n 3, 95 L 

produced evidence con- 
the role of racial factors at 
ous steps in the decisionmak- 

ocess, focusing on the prose- 
to which cases The most persuasive merit the death sentence. McCleskey 
ace of the vic- tim is an especially significant factor rgia capital-sentencing system is at the point where the defendant 
f murder and 
hoose whether 

eskey’s mid-range category would the vari 

victim is more important in ex- the prosecutor must c ning the imposition of a death to proceed to the penalty phase of the trial and create the possibility that a death sentence may be im- 
e imposition of 
imprisonment. as the McCleskey demonstrated this effect IY aggravating circumstance at both the statewide level, see SE “her the defendant had a prior 56, SE 57, Tr 897-910, and in Fulton rd of a conviction for a capital County where he was tried and sen- 

Similarly, the race-of-victim a sentence of life 

  
  

  

  Eases. Moreover, the sophistication of 9. A defendant's chances of receiving a 's evidence permits consideration of death sentence increase by a factor of 4.3 if  dtletence of racial discrimination at Var the victim is white, but only by 2.3 if the Suen points in the process, not merely defendant was the prime mover behind the 
Jury decision. It is this experience, in bh convinces me of the significance of homicide. 

study. 10. A prior record of a conviction for mur- Bow Brief for Dr. Franklin M. Fisher, Dr. der, armed robbery, rape, or kidnapping with Lempert, Dr. Peter W. Sperlich, bodily injury increases the chances of a defen- : n E. Wolfgang, Professor Hans dant’s receiving a death sentence by a factor sad Professor Franklin E. Zimring as of 4.9, Deriae 19. 

319 

et thatch it aout 

    

  



  

| 
| 

Al 

   

       
          

      
   

   

          

     
     
     
      

    

     
   

  

   

  

   

  

    

     

              

       

          

       
   

   

   

    

tenced, see SE 59, SE 60, Tr 978-981. 

The statewide statistics indicated 

that black defendant/white victim 

cases advanced to the penalty trial 

at nearly five times the rate of the 

black defendant/black victim cases 

(10% vs 15%), and over three times 

the rate of white defendant/black 

victim cases (70% vs 19%). See SE 

56. The multiple-regression analysis 

‘demonstrated that racial factors had 

"a readily identifiable effect at a sta- 

tistically significant level. See SE 57, 

Tr 905. The Fulton County statistics 

were consistent with this evidence 

although they involved fewer cases. 

See SE 59, SE 60." 

Individualized evidence relating to 

the disposition of the Fulton County 

cases that were most comparable to 

McCleskey's case was consistent 

with the evidence of the race-of-vic- 

tim' effect as well. Of the 17 defen- 

dants, including McCleskey, who 

were arrested and charged with ho- 

‘micide of a police officer in Fulton 

County during the 1973-1979 period, 

McCleskey, 

police officer. See 

1062. 

As to the final element of the 

McCleskey showed 

by which the State 

death penalty in 

his case and to pursue that sentence 

throughout the prosecution was Sus- 

Petitioner submit- 

prima facie case, 

' that the process 

decided to seek a 

ceptible to abuse. 

U.S. SUPREME COURT REPORTS 

alone, was sentenced to 

death. The only other defendant 

whose case even proceeded to the 

' penalty phase received a sentence of 

life’ imprisonment. That defendant 

had been convicted of killing a black 

SE 61-63; Tr 1050- 

   

  

   
   

  

   

  

   

  

   

  

   

   

     
   

      

      
         

    

95 L Ed 2d 

   

ted the deposition of Lewis R. Sla- for 

ton, who, as of the date of the depo “th 

sition, had been the District Attor- tan 

ney for 18 years in the county in mu 

which McCleskey was tried and sen- why 

tenced. Deposition of Lewis R. Sla- sole 

ton, Aug. 4, 1983, p 5; see McCleskey was 

v Zant, 580 F Supp, at 377, n 15; Tr at | 

1317. As Mr. Slaton explained, the of 

duties and responsibilities of that pla 

office are the prosecution of felony was 

charges within the Atlanta Judicial che 

Circuit that comprises Fulton tair 

County. Deposition, at 7-8. He testi- evi 

fied that during his years in the tion 

office, there were no guidelines in- par 

forming the Assistant District Attor- wer 

neys who handle the cases how they the; 

should proceed at any particular der 

stage of the prosecution. There were at | 

no guidelines as to when they should cert 

seek an indictment for murder a8 torr 

opposed to lesser charges, id., at 10 to | 

11; when they should recommend deci 

acceptance of a guilty plea to mus alty 

der, acceptance of a guilty plea to& Mh 
ty 

lesser charge, reduction of charges, 

or dismissal of charges at the postin: 

dictment-preconviction stage, id., st 

95-26, 31; or when they should seek 

the death penalty. Id., at 31. Slaton 

testified that these decisions were 

left to the discretion of the individ 

ual attorneys who then info 

Slaton of their decisions as they 

fit. Id., at 13, 24-25, 37-38. 

Slaton’s deposition proves that, ol 

every stage of a prosecution, the 

Assistant District Attorney exe ioe 

much discretion. The only guidar 

given was “on-the-job training.” 

at 20. Addressing plea bargaini 

           

        

   

    

   
   

   

  

11. The universe of cases from Fulton 

included 629 kill- 

ings, 581 of which yielded murder indict- 

ments. SE 59; SE 60; Tr 978-981. The evidence 

indicated that at each step in the process 

there is a differ- 

County analyzed by Baldus 

from indictment to sentence, 

320 

   
ential treatment in the disposition of 4 

victim and black-victim cases, with the whites 

victim cases having a higher likelihood # 

being retained in the system and risking 

death sentence. SE 60; Tr 978-981. .



   
   

for example, Slaton stated that    
   

    

   
    
    

   
   

    

   

    

  

   

    
   

  

      
   

po- “through the training that the assis- Lor tant DA’s get, I think we pretty 
in much think alike on the cases, on 

on what we suggest.” Id.,, at 25. The 
Sla- sole effort to provide any consistency 
key was Slaton’s periodic pulling of files 
. Tr at random to check on the progress 
the of cases. Id., at 28-29. Slaton ex- 
that plained that as far as he knew, he 
ony was the only one aware of this 
icial checking. Id., at 28. The files con- 
lton tained information only as to the 
okie evidence in the case, not any indica- 
the tion as to why an attorney made a 

s ine particular decision. The attorneys 
or were not required to record why 
they they sought an indictment for mur- 
cular der as opposed to a lesser charge, id., 
wer at 19, or why they recommended a 
would tertain plea. Id., at 29-30. The at- 
or af torneys were not required to report 
+ 10+ to Slaton the cases in which they 
op decided not to seek the death pen- 
grow alty, id., at 34-36, 38, or the cases in 
2 08 which they did seek the death pen-    

alty, id, at 41. 

When questioned directly as to 
how the office decided whether to 

#eek the death penalty, Slaton listed 
several factors he thought relevant 
#0 that decision, including the 
#rength of the evidence, the atro- 
@ousness of the crime, and the like- 

that a jury would impose the 
sentence. Id.,, at 59. He ex- 

plained that the attorneys did not 
Mek the death penalty in every case 

d which statutory aggravating fac- 
“Woes existed. Id., at 38. Slaton testi- 

that his office still operated in 
¥ same manner as it did when he 

office in 1964, except that it has 
t sought the death penalty in any 

men 

       
    

  

   

   

    

    

    

   
   

  

   

   
    

McCLESKEY v KEMP 
95 L Ed 2d 262 

rape cases since this Court’s decision 
in Coker v Georgia, 433 US 584, 53 
L Ed 2d 982, 97 S Ct 2861 (1977). 
Deposition, at 60. 

In addition to this showing that 
the challenged system was suscepti- 
ble to abuse, McCleskey presented 
evidence of the history of prior dis- 
crimination in the Georgia system. 
Justice Brennan has reviewed much 
of this history in detail in his dis- 
senting opinion, ante, at : 
9 L Ed 2d — - —, including the 
history of Georgia’s racially based 
dual system of criminal Justice. This 
historical background of the state 
action challenged “is one evidentiary 
source” in this equal protection case. 
Arlington Heights v Metropolitan 
Housing Development Corp., 429 US 
252, 267, 50 L Ed 2d 450, 97 S Ct 
8565 (1977); see also Rogers v Lodge, 
458 US 613, 618, 623-625, 73 L Ed 2d 
1012, 102 S Ct 3272 (1982). Although 
I would agree that evidence of “offi- 
cial actions taken long ago” could 
not alone establish that the current 
system is applied in an unconstitu- 
tionally discriminatory manner, | 
disagree with the Court’s statement 
that such evidence is now irrelevant. 
Ante, at ——-—— n 20, 95 L Ed 
2d 282. 

  — ———— 

The above-described evidence, con- 
sidered in conjunction with the 
other record evidence outlined by 
Justice Brennan, ante, at — 
—, 95 L. Ed ‘2d ~—— =. and 
discussed in opinions dissenting from 
the judgment of the Court of Ap- 
peals, 763 F2d, at 919 (Hatchett, J., 
dissenting in part and concurring in 
part); id., at 920-923 (Clark, d., dis- 
  

     B In his deposition, Russell Parker, the 
Mmsstant District Attorney who prosecuted 

y's case, contradicted the statement 
S8ed by the Court, ante, at ——, n 34, 95 L 

      

   

  

Ed 2d 291, concerning plea negotiations dur- 
ing McCleskey’s trial. Parker testified that he 
never discussed a plea with McCleskey. Depo- 
sition of Russell Parker, Feb. 16, 1981, p 15. 

321   



   

  

senting in part and concurring in 

part), gives rise to an inference of 

discriminatory purpose. See Wash- 

"ington v Davis, 426 US, at 239-242, 

48 L Ed 2d 597, 96 S Ct 2040. As in 

"the context of the rule of exclusion, 

see supra, n 6, McCleskey’s showing 

is of sufficient magnitude that, ab- 

sent evidence to the contrary, one 
"must conclude that racial factors 
entered into the decisionmaking pro- 

cess that yielded McCleskey’s death 
sentence. See Castaneda v Partida, 

430 US, at 494, n 13, 51 L Ed 2d 498, 

97 S Ct 1272. The burden, therefore, 

shifts to the State to explain the 
racial selections. It must demon- 

'. gtrate that legitimate racially neu- 

tral criteria and procedures yielded 
this racially skewed result. 

In rebuttal, the State’s expert sug- 

gested that if the Baldus thesis was 

correct then the aggravation level in 

black-victim cases where a life sen- 
| 

"tence was imposed would be higher 

than in white-victim cases. See 580 

'F Supp, at 373. The expert analyzed 

aggravating and mitigating circum- 

stances “one by one, demonstrating 

that in life sentence cases, to the 

extent that any aggravating circum- 

stance is more prevalent in one 

group than the other, there are 

more aggravating features in the 

U.S. SUPREME COURT REPORTS 95 L Ed 2d 

group of white-victim cases than in 

the group of black-victim cases. Con- 
versely, there were more mitigating 

circumstances in which black-victim 

cases had a higher proportion of 

that circumstance than in white-vic- 

tim cases.” Ibid. The District Court 

found that the State’s suggestion 

was plausible. It concluded, however, 

that the State did not conclusively 

disprove McCleskey’s case; yet it rea- 

soned that the State’s theory “stands 

to contradict any prima facie case.” 

Ibid. I find that reasoning wrong as 

a matter of law, and the conclusion 

clearly erroneous. 

The State did not test its hypothe- 

sis to determine if white-victim and 

black-victim cases at the same level 

of aggravating circumstances were 

similarly treated. Tr 1613-1614, 

1664. McCleskey’s experts, however, 

performed this test on their data. 

Id, at 1297, 1729-1732, 1756-1761. 

They demonstrated that the racial 

disparities in the system were not 

the result of the differences in the 

average aggravation levels between 

white-victim and black-victim cases. 

See SE 72; Tr 1291-1296; Petitioner's 

Exhibit DB 92. The State’s meager 

and unsophisticated evidence cannot 

withstand the extensive scrutiny 

given the Baldus evidence." Here, a8 

  

13. As a result of McCleskey’s discovery 

efforts, the record also contains relevant testi- 

monial evidence by two state officials. The 

Fulton County District Attorney, testified that 

"he did not recall any instance in which race 

was a factor in a death penalty case in his 

office. Deposition of Lewis R. Slaton, Aug. 4, 

. 1983, p 78. He later recalled one case that 

. was in the office when he first began, in which 

the office set aside the death penalty because 

of the possibility that race had been involved. 

Id., at 79-80. The Assistant District Attorney 

who prosecuted McCleskey's case testified 

that race did not influence his decision to seek 

the death penalty in the present case. Deposi- 
tion of Russell Parker, Feb. 16, 1981, p 17. 

322 

These general assertions by state officials 

that they did not discriminate or that they 

properly performed their official duties, how 

ever, cannot meet the State's burden of rebut. 

tal of the prima facie case. See Alexander ¥ 

Louisiana, 4056 US 625, 631-632, 31 L Ed 8 

536, 92 S Ct 1221 (1972); Whitus v Georgia. 

385 US 545, 551-552, 17 L Ed 2d 599, 87 8 (& 

643 (1967). Moreover, there are many ways is 

which racial factors can enter indirectly inte 

prosecutorial decisions. For example, the ag 

thors of a study similar to that of Baldus 

explained: “Since death penalty prosecutions 

require large allocations of scarce prosecut 

rial resources, prosecutors must choose & 

small number of cases to receive this expe:  



   

  

id 2d 

an in 
Con- 
rating 
7ictim 
on of 
be-vic- 
Court 
estion 
vever, 
sively 

it rea- 
stands 
case.” 
ng as 
lusion 

   

  

    

    

  

    

   

    

    
   

     

      

   

  

pothe- 
m and 
» Jevel 
were 

3-1614, 
wever, 

data. 
3-1761. 
racial 

re not 

in the 
tween 

cases. 
ioner’s 
neager 
cannot 

>rutiny 
ere, as 

   

     

   

  

    

    

   

  

   

    

    
    

  

   
   
    
    

    

   

        

   

   

   

  

   

        

    

        

~ Wang and Homicide Victimization, 87 Stan 

McCLESKEY v KEMP 
96 L Ed 2d 262 

in Bazemore v Friday, the State did 
not “demonstrate that when thle] 
factors were properly organized and 
accounted for there was no signifi- 
cant disparity” between the death 
sentences imposed on defendants 
convicted of killing white victims 
and those imposed on defendants 
convicted of killing black victims. 
478 US, at ——, n 14, 92 L Ed 2d 
315, 106 S Ct 3000. In Castaneda, we 
rejected a similar effort by the State 
to rely on an unsupported counter- 
vailing theory to rebut the evidence. 
430 US, at 500, 51 L Ed 2d 498, 97 S 
Ct 1272. In sum, McCleskey has 
demonstrated a clear pattern of 
differential treatment according to 
race that is “unexplainable on 
grounds other than race.” Arlington 
Heights v Metropolitan Housing De- 
velopment Corp., 429 US, at 266, 50 
L Ed 2d 450, 97 S Ct 555. 

III 

The Court’s explanations for its 
failure to apply this well-established 
equal protection analysis to this case 
are not persuasive. It first reasons 
that “each particular decision to im- 
pose the death penalty is made by a 
petit jury” and that the “application 
of an inference drawn from the gen- 
eral statistics to a specific decision in 

~ @ trial and sentencing simply is not 
comparable to the application of an 
inference drawn from general statis- 

tis to a specific venire-selection or 
~ Title VII case.” Ante, at —_— 95 L 

Ed 2d ——. According to the Court, 
the statistical evidence is less rele- 

vant because, in the two latter situa- 
tions, there are fewer variables rele- 
vant to the decision and the “statis- 
tics relate to fewer entities.” Ibid. 

I disagree with the Court’s asser- 
tion that there are fewer variables 
relevant to the decisions of jury com- 
missioners or prosecutors in their 
selection of jurors, or to the deci- 
sions of employers in their selection, 
promotion, or discharge of employ- 
ees. Such decisions involve a multi- 
tude of factors, some rational, some 
irrational. Second, I disagree with 
the comment that the venire-selec- 
tion and employment decisions are 
“made by fewer entities.” Certainly 
in the employment context, person- 
nel decisions are often the product of 
several levels of decisionmaking 
within the business or government 
structure. The Court’s statement 
that the decision to impose death is 
made by the petit jury also disre- 
gards the fact that the prosecutor 
screens the cases throughout the 
pretrial proceedings and decides to 
seek the death penalty and to pur- 
sue a capital case to the penalty 
phase where a death sentence can be 
imposed. McCleskey’s claim in this 
regard lends itself to analysis under 
the framework we apply in assessing 
challenges to other prosecutorial ac- 
tions. See Batson v Kentucky, supra; 
see also Wayte v United States, 470 
US 598, 608, n 10, 84 L. Ed 2d 547, 
105 S Ct 1524 (1985) (applying Cas- 
taneda framework in challenge to 
prosecutor’s allegedly selective en- 
forcement of criminal sanction). It is 
appropriate to judge claims of ra- 

  

| #ive treatment. In making these choices they 
may favor homicides that are visible and 

_ disturbing to the majority of the community, 
~ and these will tend 
~ es.” Gross & Mauro, Patterns of Death: An 

to be white-victim homi- 

Aaalysis of Racial Disparities in Capital Sen- 

L Rev 27, 106-107 (1984); see generally, John- 
son, Race and the Decision to Detain a Sus- 
pect, 93 Yale LJ 214 (1983): Lawrence, The Id, 
the Ego, and Equal Protection: Reckoning 
with Unconscious Racism, 39 Stan L Rev 317 
(1987). 

   
323   



   
cially discriminatory prosecutorial 
selection of cases according to ordi- 
nary equal protection standards. Id., 
at 608, 84 L Ed 2d 547, 1056 S Ct 

1524. 
The Court’s other reason for treat- 

ing this case differently from venire- 
selection and employment cases is 
that in these latter contexts, “the 
-decisionmaker has an opportunity to 
explain the statistical disparity,” but 
‘in the instant case the State had no 
practical opportunity to rebut the 
B Baldua + study. Ante, at ——, 95 L Ed 

Rl According to the Court, this 
is because jurors cannot be called to 
testify about their verdict and be- 
cause policy considerations render it 
improper to require ‘“‘prosecutors to 

defend their decisions to seek death 
penalties, ‘often years after they 

“were made.” ” Ante, at —, 95 L Ed 
2d 281, quoting Imbler v Pachtman, 
424 US 409, 425, 47 L Ed 2d 128, 96 
S Ct 984 (1976). 

I agree with the Court’s observa- 
. tion as to the difficulty of examining 
the jury’s decisionmaking process. 
There perhaps is an inherent ten- 
sion between the discretion accorded 
capital-sentencing juries and the 
guidance for use of that discretion 
that is constitutionally required. In 
his dissenting opinion, Justice Bren- 
nan demonstrates that the Eighth 
Amendment analysis is well suited 
to address that aspect of the case. 
Ante, at ——, 95 L Ed 2d ——. The 
Court's refusal to require that the 

. prosecutor provide an explanation 
for his actions, however, is com- 
pletely inconsistent with this Court’s 
longstanding precedents. The Court 
misreads Imbler v Pachtman. In 
that case, the Court held that a 
prosecutor who acted within the 
scope of his duties was entitled to 
‘absolute immunity in a § 1983 action 

324 

U.S. SUPREME COURT REPORTS 95 L Ed 2d 

for damages. We recognized that im- 
munity from damages actions was 
necessary to prevent harassing liti- 
gation and to avoid the threat of 
civil litigation undermining the pros- 
ecutor’s independence of judgment. 
We clearly specified, however, that 
the policy considerations that com- 
pelled civil immunity did not mean 
that prosecutors could not be called 
to answer for their actions. We 
noted the availability of both crimi- 
nal sanctions and professional ethi- 
cal discipline. 424 US, at 429, 47 L 
Ed 2d 128, 96 S Ct 984. Prosecutors 
undoubtedly need adequate discre- 
tion to allocate the resources of their 
offices and to fulfill their responsibil- 
ities to the public in deciding how 
best to enforce the law, but this does 
not place them beyond the con- 
straints imposed on state action un- 
der the Fourteenth Amendment. Cf. 
Ex Parte Virginia, 100 US 339, 25 L 
Ed 676 (1880) (upholding validity of 
conviction of state judge for discrimi- 
nating on the basis of race in his 
selection of jurors). 

The Court attempts to distinguish 
the present case from Batson v Ken- 
tucky, in which we recently reaf- 
firmed the fact that prosecutors’ ac- 
tions are not unreviewable. See ante, 
at —— n 17,795 1. Ed 24-281. 1 
agree with the Court’s observation 
that this case is “quite different” 
from the Batson case. Ibid. The 
irony is that McCleskey presented 
proof in this case that would have 
satisfied the more burdensome stan- 
dard of Swain v Alabama, 380 US 
202, 13 L Ed 2d 759, 85 S Ct 824 
(1965), a standard that was described 
in Batson as having placed on defen- 
dants a “crippling burden of proof.” 
476 US, at —, 90 L Ed 2d 69, 106 
S Ct 1712. As discussed above, Mc- 
Cleskey presented evidence of nu- 

  

 



    
merous decisions impermissibly 
affected by racial factors over a 
significant number of cases. The ex- 
haustive evidence presented in this 
case certainly demands an inquiry 
into the prosecutor’s actions. 

The Court’s assertion that, be- 
cause of the necessity of discretion 
in the criminal-justice system, it 
“would demand exceptionally clear 
proof,” ante, at ——, 95 LL Ed 2d 
281, before inferring abuse of that 
discretion thus misses the point of 
the constitutional challenge in this 
case. Its conclusory statement that 
“the capacity of prosecutorial discre- 
tion to provide individualized justice 
is ‘firmly entrenched in American 
law,’” ante, at ——, 95 L Ed 2d 
291, quoting 2 W. LaFave & D. 
Israel, Criminal Procedure § 13.2(a), 
p 160 (1984), is likewise not helpful. 
The issue in this case is the extent 
to which the constitutional guaran- 
tee of equal protection limits the 
discretion in the Georgia capital-sen- 
tencing system. As the Court con- 
cedes, discretionary authority can be 
discriminatory authority. Ante, at 
—, 95 L Ed 2d . Prosecutorial 
decisions may not be ‘deliberately 
based upon an unjustifiable standard 
such as race, religion, or other arbi- 
trary classification.”” Bordenkircher 
v Hayes, 434 US 357, 364, 54 L Ed 
2d 604, 98 S Ct 663 (1978), quoting 
Oyler v Boles, 368 US 448, 456, 7 L 
Ed 2d 446, 82 S Ct 501 (1962). Judi- 
cial scrutiny is particularly appro- 
priate in McCleskey’s case because 
“[m]ore subtle, less consciously held 
racial attitudes could also influence” 
the decisions in the Georgia capital- 
sentencing system. Turner v Mur- 
ray, 476 US ——, ——, 90 L Ed 2d 
27, 106 S Ct 1683 (1986); see n 13, 
supra. The Court’s rejection of Me- 
Cleskey’s equal protection claims is 

  

McCLESKEY v KEMP 
95 L Ed 2d 262 

a far cry from the “sensitive in- 
quiry” mandated by the Constitu- 
tion. 

IV 

A 

One of the final concerns discussed 
by the Court may be the most dis- 
turbing aspect of its opinion. Grant- 
ing relief to McCleskey in this case, 
it is said, could lead to further con- 
stitutional challenges. Ante, at ; 
95 L Ed 2d —. That, of course, is 
no reason to deny McCleskey his 
rights under the Equal Protection 
Clause. If a grant of relief to him 
were to lead to a closer examination 
of the effects of racial considerations 
throughout the criminal-justice sys- 
tem, the system, and hence society, 
might benefit. Where no such factors 
come into play, the integrity of the 
system is enhanced. Where such con- 
siderations are shown to be signifi- 
cant, efforts can be made to eradi- 
cate their impermissible influence 
and to ensure an evenhanded appli- 
cation of criminal sanctions. 

  

B 

Like Justice Stevens, I do not be- 
lieve acceptance of McCleskey’s 
claim would eliminate capital pun- 
ishment in Georgia. Post, at ——, 95 
L Ed 2d ——. Justice Stevens points 
out that the evidence presented in 
this case indicates that in extremely 
aggravated murders the risk of dis- 
criminatory enforcement of the 
death penalty is minimized. Ibid. I 
agree that narrowing the class of 
death-eligible defendants is not too 
high a price to pay for a death-pen- 
alty system that does not discrimi- 
nate on the basis of race. Moreover, 
the establishment of guidelines for 
Assistant District Attorneys as to 

325 

 



  

the appropriate basis for exercising 
. their discretion at the various steps 

in the prosecution of a case would 
provide at least a measure of consis- 
tency. The Court’s emphasis on the 
procedural safeguards in the system 
ignores the fact that there are none 
whatsoever during the crucial pro- 
cess leading up to trial. As Justice 
White stated for the plurality in 
Turner v Murray, I find “the risk 
that racial prejudice may have in- 
fected 'petitioner’s capital sentencing 
unacceptable in light of the ease 
with which that risk could have 

' been minimized.” 476 US, at —, 90 
L Ed 2d 27, 106 S Ct 1683. I dissent. 

Justice Stevens, with whom Jus- 
tice Blackmun joins, dissenting. 

There “is a qualitative difference 
between death and any other per- 
missible form of punishment,” and 
hence, ‘a corresponding difference 
in the need for reliability in the 
determination that death is the ap- 
propriate punishment in a specific 
case.” ” Zant v Stephens, 462 US 862, 

. 884-885, 77 L Ed 2d 235, 103 S Ct 
2733 (1983), ‘quoting Woodson v 
North Carolina, 428 US 280, 305, 49 
L Ed 2d 944, 96 S Ct 2978 (1976) 
(opinion of Stewart, Powell, and Ste- 
vens, JJ.). Even when considerations 
far less repugnant than racial dis- 
‘crimination are involved, we have 
recognized the “vital importance to 
the defendant and to the community 
that ‘any decision to impose the 

' death sentence be, and appear to be, 
based on reason rather than caprice 
or emotion.” Gardner v Florida, 430 
US 349, 358, 51 L Ed 2d 393, 97 S Ct 
1197 (1977). “[Alithough not every 
imperfection in the deliberative pro- 
cess is sufficient, even in a capital 

' case, to set aside a state-court judg- 
‘ment, the severity of the sentence 

326 

U.S. SUPREME COURT REPORTS 95 L Ed 2d 

mandates careful scrutiny in the re- 
view of any colorable claim of er- 
ror.” Zant, supra, at 885, 77 LL Ed 2d 

235, 103 S Ct 2733. 

In this case it is claimed—and the 
claim is supported by elaborate stud- 
ies which the Court properly as- 
sumes to be valid—that the jury’s 
sentencing process was likely dis- 
torted by racial prejudice. The stud- 
ies demonstrate a strong probability 
that McCleskey’s sentencing jury, 
which expressed “the community’s 
outrage—its sense that an individual 
has lost his moral entitlement to 
live,” Spaziano v Florida, 468 US 
447, 469, 82 L Ed 2d 340, 104 S Ct 
3154 (1984) (Stevens, J., dissenting) 
—was influenced by the fact that 
McCleskey is black and his victim 
was white, and that this same out- 
rage would not have been generated 
if he had killed a member of his own 
race. This sort of disparity is consti- 
tutionally intolerable. It flagrantly 
violates the Court’s prior “insistence 
that capital punishment be imposed 
fairly, and with reasonable consis- 
tency, or not at all.” Eddings v Okla- 
homa, 455 US 104, 112, 71 L Ed 2d 
1, 102 S Ct 869 (1982). 

The Court’s decision appears to be 
based on a fear that the acceptance 
of McCleskey’s claim would sound 
the death knell for capital punish- 
ment in Georgia. If society were in- 
deed forced to choose between a ra- 
cially discriminatory death penalty 
(one that provides heightened protec- 
tion against murder “for whites 
only”) and no death penalty at all, 
the choice mandated by the Consti- 
tution would be plain. Eddings v 
Oklahoma, supra. But the Court’s 
fear is unfounded. One of the lessons 
of the Baldus study is that there 
exist certain categories of extremely 

   



      

serious crimes for which prosecutors 
consistently seek, and juries consis- 
tently impose, the death penalty 
without regard to the race of the 
victim or the race of the offender. If 
Georgia were to narrow the class of 
death-eligible defendants to those 
categories, the danger of arbitrary 
and discriminatory imposition of the 
death penalty would be significantly 
decreased, if not eradicated. As Jus- 
tice Brennan has demonstrated in 
his dissenting opinion, such a re- 
structuring of the sentencing scheme 
is surely not too high a price to pay. 

Like Justice Brennan, I would 
therefore reverse the judgment of 
the Court of Appeals. I believe, how- 
ever, that further proceedings are 

McCLESKEY v KEMP 
95 L Ed 2d 262 

necessary in order to determine 
whether McCleskey’s death sentence 
should be set aside. First, the Court 
of Appeals must decide whether the 
Baldus study is valid. I am per- 
suaded that it is, but orderly proce- 
dure requires that the Court of Ap- 
peals address this issue before we 
actually decide the question. Second, 
it is necessary for the District Court 
to determine whether the particular 
facts of McCleskey’s crime and his 
background place this case within 
the range of cases that present an 
unacceptable risk that race played a 
decisive role in McCleskey’s sentenc- 
ing. 

Accordingly, I respectfully dissent. 

327



  
Rule 27. Stay or 

forth good cause 

~~ Rule-29. F 

"Rule 27 

or Recall of Mandate 
{a) A motion for a stay of the issuance of a 

mandate in a direct criminal appeal filed under 
FRAP 41 shall not be granted simply upon request. 
Ordinarily the motion will be denied unless it shows 
that it is not frivolous, not filed merely for delay, 
and shows that” a substantial guestion is to be 
presented to the Su Court or otherwise sets (» 

£ : Z o 2 

(b) A mandate once issued shall not be recalled 
. except to prevent injustice. 

(c) Unless otherwise expressly provided, granting 
a suggestion for rehearing en banc vacates the 
panel opinion and stays the mandate. - 

(d) Because the timely filing of a petition for rehearing will stay the mandate under FRAP 41, 
and because a suggestion for rehearing en banc-is 
also treated as a panel rehearing under. Rule 26(e) 
of these rules, the mandate is stayed until disposi- 
tion of a timely filed petition for panel rehearing or 
suggestion for rehearing en banc unless otherwise 
ordered by the court. 

Cross Reference: FRAP 41; 11th Cir. R. 17(c¥12) ang (dx10) 

Rule 28. Costs ; ; 
The clerk in taxing costs for printing or reproduc- 

tion pursuant to FRAP 39(c) shall tax such costs at 
rates not higher than those determined by the clerk 
from time to time by reference to the rates general 
ly charged fer such work in the principal cities of 
the circuit, or at actual cost, whichever is less. 

Taxable costs will be authorized for up to fifteen 
- copies for a brief and ten copies of an appendix or 
record excerpts, unless advance approval for addi- 
tional copies is secured from the clerk. 

All costs shall be paid and mailed directly to the 
party to whom costs have been awarded. Costs 
should not be mailed to the clerk of the court - 

~. Cross Reference: FRAP 39(c) 

ee Awards to Prevailing Parties in 
Agency Actions Ho : 

Petitions For Permission Teo Appeal Under 5 
> U.S.C.A. Section 504(c)(2) : 
(a)_An application to this court for an award of 

fees and expenses pursuant to 28 US.CA. 
§ 2412(d)(1XB) shall identify the applicant and the 
proceeding for which an award is sought. The 
application shall show the nature and extent of _ 
services rendered in this court, that the applicant 
has prevailed, and shall identify the position of the 
United States Government or an agency thereof in 

16 

U.S. COURT OF APPEALS 

~ shall contain a statement of 

"answer in opposition. The peti 

wise ordered. 

_ the docket. 

~ No further petition f 

: Rule 30. Habeas Corpus Death Pe 

the proceeding that the applicant alleges was not 
substantially # justified. The party applying shall 
submit the required information on Form AQ, 291, 
available from the clerk of court, 

(b) Petition for Permission to Appeal. A peti 
tion for-permission to appeal as prescribed by 5 
US.C.A_§ 504(ck2) shall be filed within 30 -days 

entry of the order sought to be reviewed, with proof of service on al parties to the action 
before the agency. 

(¢) Content of Petition; 

Rag after the 

Answer. The petition 
the facts necessary to | 

an understanding of the questions to be presented 
by the appeal: a statement of the questions and 
relief sought; a copy of the arder to be reviewed 
and any findings of fact, conclusions of law and 
opinion relating thereto; a statement of the reasons 
why in the opinion ef the petitioner the appeal 
should be allowed: and a copy of the order, decree 
or judgment complained of and any opinion or mem- 
orandum relating therets. Within 14-days after 
service of the petition, an adverse party may file an 

tion and answer shall 
argument unless other: 

be submitted without oral 

(d) Form of Papers; Number of Copies. ~All 
papers may be typewritten. Three copies shall be 
filed with the original. ng A 

(e) Allowance of the Appeal: Fees; Filing of 
Record. Within 10 days after the entry of an order - 
granting permission to appeal, the petitioner shall 
pay to the clerk of this court the fees established by 
statute and prescribed by the Judicial Conference of 
the United States. Upon receipt of the docket fee, 
the clerk of this court shall enter the appeal upon 

The record shall be transmitted and 
filed in accordance with FRAP Rules 11 and 12(b). 

Or review or notice of appeal need be filed. Rr a at 
(f) Appeals and petitions to review otherwise con- 

templated by the Equal Access to Justice Act may 
be filed pursuant to the applicable statutes and rules of thecourt. ~~ 

nalty Cases 
(a) Stay Cases. . - 3 

(1) The following rules shall apply to cases 
brought pursuant to 28 U.S.C. Sec. 2254 "in which 
a state court has imposed a sentence of death, 
execution has been ordered, the United States _ 
District Court has denied a motion to stay execu- 
tion pending appeal, and the petitioner has appeal- 
ed to this court and has applied for a stay of 
execution. - Except as changed by these rules the 
provisions of El. Cir. Rule 17 shall apply.    



        = Li ELEVENTH CIRCUIT © + ~~ = Rule 30 

   
   
   

  

   
    

  

   

     
   

     

    

ges was not the filing of the notice of appeal in &° : given notice to address the ners along with 
orm A.0. 29] the district court has denied a stay, the application for 2 stay, must have adaquate 
PE Jerk of “the district court shall immediately Onsen to brief the case on the merits, and 

= the clerk of this court by telephone of such ust be given the opportunity for oral argu- 
     

    
   
     

  

   

   

   
   

    

   

wi on the merits. Notwi thstanding. the au- eal. i 
P A peti thority of the panel to decide the merits along scribed by 5 

ithin 30 or 
h be review ed, 

to ‘the action 

     

  

     

   

: four copies of the motion {37 An original and P i C 5 : 

for Bo of of execution and petition for certificate with the motion to stay, the delay that is avoid- 
4 cod - 

of Poi e cause (if not granted by the district ed by such expedited procedures will not ordi 
shall be filed with the cl clerk of this court narily warrant departure { from. the normal, un- 

‘truncated processes of appellate review in the       

  

   

    

    

   

    

  

   

  

   

    

    

    

   
   

     
   

  

     

     
   

  

     

   
     

     

  

    
     

         
        

        

      
      
        

E ri aocuments reguire y t 

The hetitic iether Wits Socuments required py Ih Gir 0 case of. bk] or original writ of habeas corpu 
Rs n LE : e . u 1 I nececang ty gn res of th vote of sppenl wng | feral oot hen bo fu or onghal 

be Frosites 3 “motion for~ stay (and in for rigs of the panel handling the case will allow the ordi- 
uestions and FE _ probable - cause, if not granted by the district — nary briefing schedule for appeals to the extent 
be reviewed oh 2 court), the clerk shall docket the case and assign feasible; the panel may, however, set the case 
of law and - jt to a panel constituted by ‘the court from a for hearing on an advanced basis. : 

f the reasons roster of the active judges of the court main- : =a 
the appeal - tained for the purposes of these rules. The clerk (b) Non-Stay Taser . : - 

brder, decree ghall notify the judges of the panel of their as- i fy L's ode te and bed ' 
1i0n Or Them-- —signment by telephone- or other expeditious ; n appeal id isc S pil or o. er 
days after means. The panel to which the case is assigned tere Pp ursuant to i iad wa 254, in death ~~ 

      sentence cases, if petitioner has been granted a= _ 
certificate of probable cause by the district court —- 
and no stay of execution has been entered by the : 
district court, and a stay of execution is not 

_sought of the court of appeals; the appeal shall 
proceed- under the Federal Rules of Appellate 

    shall handle all matters pertaining to the motion 
to stay, petition for certificate of probable cause, 
the merits, second or successive petitions, re- 
mands from the Supreme Court of the United 
States, and all incidental and collateral matters, 

    ' may file-an 
nswer shall - 
nless other-          

    
     

    

   
    

   

     

   
    
   
   

    

  

    
    

   

    

    

    
    
   

    

  

   
   
    

    

opies, All 3 

  

les shallbe - } be Rang su Serpe Proceedings guesuoning Procedure, the Eleventh Circuit Rules, and the 
avi has gh ‘usual policies of this court, except that: 

Filing of (5) The panel shall determine whether oral ar- 
of an order gument will be heard on the motion to stay and _ (a) The case will be assigned for oral argu- 
tioner shall all other matters pertaining to the case. ¥ ment and set for hearing on an advanced basis 

ablished by (6) If the district court has refused to grant a before 2 reguar ora A The Or.2 spe 
nference of certificate of probable cause, and this court also —- cial ora argumen pang io ected from a roster 
docket fee, i denies a certificate of probable cause, no further of the SOuTY may; she or the purposes of 
ppeal upon: - _ action need be taken by the court. these rules; provided, however, the ordinary 
" ~  briefi hedule f Is will be followed to 

mitted and (7) If a certificate of probable cause is granted the extent Tk Rpes Bt i y owe 
and 12(b). 5 { by the district court or by this court, the panel ! 

tof appeal i shall grant a temporary stay pending considera- : a Court Policy wis 
5% IE tion of the merits of the case if fiecessary to aE 

rwise con- _ - prevent mooting the case; provided, however, the The writing Judge and dissenting judge if any - 
e Act may. panel may, after hearing, deny a stay if it makes : Eg ser ? Prepatal h :   tutes and ; written findings that: ot of opinions in habeas corbus death penalty 

(1) the appeal is frivolous, or is lacking any _ Sdoted June 15 _ 108 . : ; : . 
factual basis in the record, or is squarely fore- . 
closed by statute, rule, or authoritative court Gros Reference: Rule 17, 28 USCA Se. 2244(b), Rule 9(b) of ‘ 

Ea
 

be 

      
  

37 4 V 2 $ / lty Cases 3 - decision; or Pe rule ons i Go ering Section 2254 Cases in the United States 

5 SN : (ii) the petition is successive, and the require-  - SE : 
to cases - ments for dismissal are met. . sis 4 Lawl Ry 

in which - Lr Sg The panel may conclude that the merits of - =~ _ : . : : 
of ink : : ~~ the case can be appropriately addressed and ~~ POLICY EHEARING EN BANG FOR 
bd States ~~ decided with a decision or the motion to stay. 
av execu- - ~ To do so, the panel must conclude that the Because of the difficulty of delivering petitions 
s appeal-- ; record before it is adequate and that it can for rehearing en banc to judges of the court where 
stay of «i : reach a considered decision on the merits. Ad-- a panel of the court has denied a request to stay an 

y : ~ ditionally, counsel must be given notice to ad- execution-scheduled for a time within 24 hours of rules the = 
: ; dress the merits. Additionally, counsel must be the filing: of the petition for rehearing en banc, :



or filing cach, | 
dge who trieq 
- request. In 
Titten Approy- 

court judge, 
B 

of Record— 
trict court is 

ie. record on 

appeal. "Un. 
the clerk of 

Eg of notice of 
he transcript 

Hered, which. 
L court shall ~ 
reasons for 
r filing the 

f Exhibits— 
rict court is 
cord to the 
1ts/ ‘exhibits 

ld with rea. - 
ual bulk or 
larger than 
tted by the 
pss directed - 
pals or by a 
angements 

i receipt of 

party may 
he clerk of 

pbpeal shall 
and back 
ling. The 

urt or the 
ndex the 
p consecu- 

and Un. 

ct -" 

Criminal - - 
US.C.A. 
cuit has’ 
us plans 
b district 
entation 

pb obtain 
A plan, 
dendum 

  

He ood nsel was appointed for a party in- the 
ot court under the Criminal Justice Act, the 

a iri may appeal without prepaying costs and with- 
§ sstabl Tishing the gn: -to proceed in forma pau- 

wd 
I 

“out 
= pec. +g, 18 U.S.C.A. § 3006A(d)6). This policy also 

3 Yes to all in orn rma pauperis appeals from judg- 
ants of conviction. 

a In other cases in which a party was permitted 
~ nroceed in the district court in forma pauperis, 

Fgh to proceed in for rma paunaY is on Epes is 
conditions BUY 

In all a cases s ihe Fis Coin, Whi transmit- 
= ting the notice of appeal to the clerk of this court, 

shall certify in writing whether the party is entitled 
to appeal as a pauper and whether the appeal is 
taken in good faith. If the district court finds that 
the party is not a pauper or that the appeal is not 
taken in good faith, the district court shall state in. 
“writing the reasons for such findings. ; 

(d) Pursuant to FRAP 22, in all state habeas. 
corpus cases counsel shall apply to the district court 
for a ruling on certificate of probable cause. 

te) The certificate of probable cause shall be for-- 
warded to this court with the notice of appeal. 

Cross Reference: FRAP 24(a); 18 US.C.A. § 3006A 

Rule 16. Disralsss} of Cases 
(a) Dismissal by Appellant. If the appellant or 

petitioner files an unopposed motion te withdraw 
the appeal or agency review proceeding, the clerk 
shall enter-an order of dismissal and issue a copy of 
the order as the mandate. 

(b) Dismissal for Failure to Prosecute. Where 
appellant fails to file the record or a brief or other- 
wise fails to comply with rules requiring processing 
an appeal (or other proceeding) to hearing, the clerk 
shall issue a notice to counsel, or to appellant if the 
appearance 1s pro se, that upon expiration of 15 

days from the date thereof the appeal (or other- 
; proceeding) will be dismissed for want of prosecu- 

tion if the default has not been remedied. If the 
default is remedied within the 15 days, the clerk 
shall not dismiss the appeal (or other proceeding) 

-and if appellant is represented by counsel, the-clerk 
may refer the matter to the court for Dossivte 
disciplinary action against counsel. 

(¢) In lieu of the procedures described in (b), the 
court may take such other or different action-as it 
deems appropriate. 

(d) A copy of an order dismissing an appeal” for 
want of prosecution shall be issued to the clerk of 
the district court as the mandate. 

Cross Reference: FRAP 3(a):- IOP VI G 

Rule 17. Motions and Interioedtory Orders 

- (a) Form of Motion. 

Rule 11 
= {1) A motion mu SE made in writing with 

proof of service on all parties. If written notice 
. has not been received by the opposing parties, 

oral notification must be given by the moving — 
party. The motion shall be accompanied by, and 
the opposing party shall be served with support- 
ing documentation provised by FRAP 27, includ- 
ing relevant materia At from previous judicial or 
stminis trative dings in the case. . 

must_include a copy. co 
= nt es er from rich Gi ef is sou : 

an) ; and findings of the distric 
circumstances necessitate fling a Ahk in 

telegraphic form, the motion shall summarize the 
above described materials. In addition to content 

- required by FRAP 27, the motion shall contain a 
‘brief assessment of prior actions of-this or any 
other court or judge to which the motion, or a 

_ substantially similar or related application for re- 
lief, has been made. A motion for enlargement of 
time made pursuant to FRAP 26(b) shall- and 
other motions where appropriate may, contain a 

certificate that movant’s counsel has consulted 
counsel for the opposing party and that movant's. 
counsel has been authorized to represent that 
counsel for the opposing party has no objection to 
the relief sought, or will promptly file an objec- 

~ tion. Except for purely procedural ‘motions, a 
motion shall include a- certificate of interested 
persons as described in 11th Cir. R. 22(£)(2); oP - 
IVE. 

{2) Motions requiring panel action must be filed 
with the court by submitting the original and four 
copies. Motions requiring single judge review 
should be filed with the court by submitting the 
original and one copy. 

(b) Emergency Motions. 

{1) A party requesting emergency action on a 
motion shall label the motion as “Emergency Mo-- 
tien’" and state the nature of the emergency and 
the date by which action is necessary. The mo- 
tion or accompanying memorandum shall state 
the reasons for granting the requested relief ‘and 
must specifically discuss: 

(i). the likelihood the moving party will prevail 
on the merits; 

(i) the prospect of irreparable injury to the 
moving party if relief is withheld; - 

(iii) the possibility of harm to other parties if 
relief is granted; and : 

ge (iv) the public interest. 

Counsel filing the motion shall make every possible 
- effort to serve the motion personally; if this is not 
. possible, counsel shall notify oppesing counsel 
promptly by telephone. : . 

- (2) If the emergency motion raises any issue 

theretofore raised in a district court, counsel for  



= “U. 8 S . COURT OF APPEALS 

th 
Cas 

ings, briefs, memoranda or TL p pers 
—the district court supporting or opposing the posi- 
tion taken by the moving party in the motion and 

_ copies of any order or memorandum decision of 
~ the distriet court relating thereto. If compliance 
"be impossible or impractical due to time restraints 
or otherwise, the reason for non-compliance shall 
be stated. 

~ (3) An emergency motion, whether addressed 
to the court or an individual judge, ordinarily 
chould be filed with the clerk and not with an 
individual judge. In a genuine emergency to ex- 

~ pedite consideration by the court, counsel may 
telephone the clerk and in advance describe a 
motion that has not yet been filed in writing. 
This is not a substitute for the filing required by 

- FRAP 27(a). . : 

Cross Reference: IOP IVE 

(¢) Motions for Procedural Orders Acted Cpod 
by the Clerk. 

The clerk is authorized let to review by the 
court, to take appropriate action for the court on the 
following unopposed procedural motions timely filed 
and served (see FRAP 27(b)): 

(1) to enlarge the time for filing designations 
as to printing under FRAP 30, and the time for 
filing briefs, answers, objections, or replies to 
pending motions in cases not yet assigned or 
uhder submission; 

(2) to transmit records to th Supreme -Court 
for use in connection with petitions for writs of 
certiorari; 

(3) to withdraw appearances except in court 
appointed cases; 

(4) at the request of counsel to make correc- - 
tions in briefs or pleadings filed in this court; ~ 

(5) to grant leave to file briefs in preliminary 
typewritten form with privilege of later substitu- 
tion of printed copies; 

(6) to extend time for filing petitions for re- 
hearing for not longer than 30 days; 

(7) to stay further proceedings i in appeals, upon 
notice to the chief judge or such member of the 
court as may be designated by the chief judge; 

(8) to supplement or eorrect records; 

{9) to consolidate appeals if from the same dis 
trict court; : 

(10) to fearbolate records. or briefs on former 
appeals; - A 

(11) to grant leave to file further reply or sup- ; 
plemental briefs before argument in addition to 
the single reply brief permitted by FRAP 28(c), in 

~ typewritten or printed form; : 

(12) to stay for not more than 30 days the 
— issuance of a mandate pending certiorari in a civil 

case, provided the court has not specially ordered 
the mandate issued earlier; 

(13) to reinstate appeals” 

(14) to enter and issue gonsent decrees in Na- 
tional Labor Relations Board and other govern—. 
ment agency review cases; 

{15) to enter CJA Farm 20 orders continuing on 
appeal district court appointments of counsel for 
purposes of compensation. A x 

(d) Motions Acted Upon by a Single Judge. Un- 
der FRAP 27(c), a single judge may, subject to 
review by the court, entertain and grant or-deny 
any request for relief that under FRAP may ‘be 
sought by motion except dismiss or otherwise deter- 

_ min€ an appeal or other proceeding. Without limit- 
ing this authority, a single judge is authorized to - 
‘entertain and act, subject to review by the court, on 
the following motions: 

(1) where opposed, the motions that are subject 
to action by the clerk under part (c) of this rule; 

(2) to permit. interventions in agency proceed- 
Ings pursuant to FRAP 15{d): . ©: 

(3) for certificates of probable | cause under 
FRAP 22(b) and 28 U.S.C.A. § 2254; 

(4) to appeal in forma pauperis, see FRAP 24 
and 28 U.S.C.A. Section 1915(2a); 

(5) to appoint counsel for indigent persons ap- 
pealing from judgments of conviction or from 
denial of writs of habeas corpus or petitions filed 
under 28 U.S.C.A. § 2255, or to permit court 

+ appointed counsel to withdraw; 

(6) for leave to extend the length & briefs 

“sadet FRAP 28(g) and -motions for rehearing 
“under FRAP 40(b); : > 

(7) for good eause Hier to FV times pre- 
“scribed by FRAP or by the rules of this court 
- supplementing FRAP (note that FRAP 26(b) for- 
bids the court to enlarge the time for taking 
various actions, including the time for filing a 
notice of appeal). In criminal cases, counsel re- 
questing an extension of time to file a brief must 
‘include a statement showing whether the defend- 
ant is on bail or serving a sentence; ; 

(8) to substitute parties under FRAP 43;  - 

(9) to exercise the power- granted in FRAP 8 
and 9 with respect to stays or injunctions or 
releases in criminal cases pending appeal but sub- - 
ject to the restrictions set out therein, and under 
FRAP 18 with respect to stays pending review of 
decisions or orders of agencies but subject to the 
restrictions on the power of a single judge con: 
“tained therein;- Gi ee   

 



- 30 days the 
iorari in a civil 
ecially orden 

cont tinuing on 
of counsel for 

le Judge. Un- 
RY, subject to 
grant or deny 
RAP may be 
erwise deter. 

Without limit- 
authorized tg 
the court, on 

at are subject 

) of this rule; 

FICY proceed- 

cause under 

ee FRAP 24 

-persons ap- 

ion or from 
etitions filed 
ermit- court 

h of briefs 
r rehearing 

times pre- 

this™ court 
EP 26(b) for- 
for taking 
or filing a 
counsel] re- 

brief must 
he defend- 

0 48, ~ 

-FRAP 8 
ctions or 

I but sub- 
and under 
review of 

ect to the 
idge con- 

= (2) 

  

A
 
S
a
r
 
S
R
 

A,
 

ELEVENTH CIRCUIT 

a
d
 

penling certiorari; 

pedite appeals; 

for leave to file amicus curiae briefs under 

fo
e 

S
p
 

; 

es Motions Shall Not Be Argued. Unless or-- 
dered by the court no motion shall be orally-argued. 

(f) Effect of a Ruling on a Motion. A ruling 
on a motion or other interlocutory matter, whether 
entered by a single judge or a panel, is not binding ~ 
upon a panel to which the case is assigned on the 

ba
 

» 
| 

~ merits, and the merits panel may alter, amend, or 
vacate it. = 

Applications for Habeas Corpus Relief. 

- _(1) Ordinarily a petition for writ of habeas cor- 
pus whether addressed to a judge of this court or 
referred to a judge of this court under (2), below, 
will be transferred by the judge to the approprt 
ate district court. See FRAP 22(a). ~ _ 

(2) A petition received by the court but ad- 
dressed to a circuit judge will be referred to that 
judge; if not addressed to a particular judge it 
will be treated as addressed to any judge of the 
court ‘and will be referred to the next judge in 
rotation on the administrative routing log main- 
tained by the clerk. 

Cross Reference: FRAP 22, 25, 26, 
US. Sup.Ct. R. 43; IOP IV oe 

32(b), 43, 28 U.S.C.A. § 2243: 

Rule 18.” Frivolous Appeals 

If upon the consideration of any interlocutory 
- motion it shall appear to the court that the appeal is 
frivolous and entirely without merit, the appeal may. 
be dismissed. ~~ 5 

Cross-Reference:. 28 US.C:A. § 1927; FRAP 38 

stay the issuance of mandates or recall 

Rule 19. Writs of Mandamus and Prohibition 
Directed to a Judge or Judges and 
Other Extraordinary Writs 

(a) A petition for writ of mandamus, writ of pro- 
hibition, or other extraordinary writ shall not bear 
the name of the district judge but shall be entitled, 
“In re [name of petitioner].” To the extent that 
relief is requested of a particular judge, unless 
otherwisé ordered, the judge shall be ‘represented 
pro forma by counsel for the party opposing the 
relief and this counsel shall appear in the name of 
the party and not the name of the judge. (For other 
provisions relating .- to extraordinary writs, see 
FRAP 21). 

(b) As part of the required showing of the rea- 
sons why the writ should issue, the petition should 
include a showing that mandamus is appropriate 
because there is no other adequate remeds avail-- 
able. 5 : to 

petition shall inch i a certificate of inter- 
y 11th pur. R. 22002). 

Ad The petition mus 

cluding any judge named as rn a = 
rties to the action in ai str _ Service is 

he res ponsibilily of the rete ret the clerk. 

Rule 20. Procedures in Proceedings for Re- 
view of Orders of the Federal En- 
ergy Regulatory Commission 

This court has adopted special rules for these 
~Droteedings which are Addendum Two. 

“Rule 21. [Reserved] il Oa 

1986, amending the eleventh The court order of February 26, 
Bankruptcy, and designated circuit rules deleted former rule 21, 

_ rule 21 as “Reserved”. 

_ Cross Reference: 28 US.C.A. § 129200); FRAP 6 

Rule 22. Record Excerpts, 
Briefs 

~ (a) Record Excerpts and Appendix— Appeals 
from District Court and Tax Court. Appeals from 
district courts and the tax court shall be on the 
-original record without requirement of the appendix 
prescribed by FRAP 30. At the time of filing a 
brief, appellant shall file four copies of the follow- 
ing portions, and only the following portions of the 
district court record, to be bound gehen but not in 
the brief: 

(1) the district court docket sheet; 

(2) the indictment, information, or complaint a as 

amended; : 

-(3) the answer, counterclaim, cross-claim, and 

replies thereto; 

4) those parts of any pretrial order relative to 

Appendix, and a 

the issues on appeal; - Bar 

(5) the judgment or interlocutory order appeal 
ed from;" 

(6) any other order or- - orders sought to be 
_ reviewed; : 

(7) any “supporting opinion, findings of fact 2 
conclusions of law filed or delivered orally by the 

- court, and - 

(8) if the correctness of a jury ‘instruction 1 is in 
_ issue, the instruction in question and any other 
relevant part of the jury charge. eis 

- These copies shall be reproduced on white paper 
by any duplicating or copying process capable of 
producing a clear black image, with a cover sheet 
bearing the -case number and style and captioned 
“Record Excerpts.” Record excerpts shall be as- 
‘sembled with a front and back durable, thick cover-